State of Louisiana v. Larry Nix

DO NOT PUBLISH

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-312 c/w 12-313 & 12-314

STATE OF LOUISIANA

VERSUS

LARRY NIX

************

APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 77989
HONORABLE VERNON B. CLARK, DISTRICT JUDGE

************

J. DAVID PAINTER
JUDGE

************

Court composed of Marc T. Amy, John D. Saunders , and, J. David Painter
Judges.

FELONY SENTENCES AFFIRMED; MISDEMEANOR CHARGES
SEVERED.

Carey J. Ellis, III
Louisiana Appellate Project
P.O. Box 719
Rayville, LA 71269
Counsel for Defendant-Appellant:
Larry Nix

Asa A. Skinner, District Attorney
Terry W. Lambright, Assistant District Attorney
P.O. Box 1188
Leesville, LA 71446
Counsel for Appellee
State of Louisiana

PAINTER, Judge

Defendant, Larry Nix, appeals the sentence imposed in connection

with his conviction for one count each of distribution of cocaine, possession

of cocaine with intent to distribute, possession of cocaine, and possession of

hydrocodone with intent to distribute. For the following reasons, we affirm

the felony sentences imposed by the trial court and sever the misdemeanor

charges.

FACTS

On October 5, 2010, the State filed a bill charging Defendant with

possession of cocaine with intent to distribute, a violation of La.R.S. 40:

967(A)(2). On January 4, 2011, the State filed a bill charging Defendant

with another count of possession of cocaine with intent to distribute. On the

same date, the State filed a bill charging him with six misdemeanors. A third

bill filed on that date charged Defendant with possession of hydrocodone

with intent to distribute, a violation of La.R.S. 40:967(F), and possession of

Xanax with intent to distribute, a violation of La.R.S 40:969. Errors in the

second and third bills will be discussed in the “Errors Patent” section of this

opinion.

On September 13, 2011, Defendant entered several guilty pleas

pursuant to a plea agreement. He pled to one count each of distribution of

cocaine; possession of cocaine with intent to distribute, a reduced charge of

possession of cocaine, and possession of hydrocodone with intent to

distribute. The remaining felony counts were dismissed.

Defendant also pled guilty to some misdemeanor charges and others

were dismissed. However, such charges, billed together under trial docket

number 80506, are properly reviewable by way of writ rather than appeal.
1

La.Code Crim.P. art. 912.1(C)(1). Therefore, the misdemeanor guilty pleas

are severed, and Defendant has thirty days to file a writ of review.

The plea agreement included a sentencing cap of twenty-five years.

On November 16, 2011, the court sentenced Defendant as follows:

Distribution of Cocaine: eighteen years at hard labor, without
benefit of parole, probation, or suspension of sentence, plus a
$2,500 fine;

Possession of Cocaine with Intent to Distribute: eighteen years
at hard labor, the first two years without parole, probation, or
suspension of sentence, plus a $2,500 fine;

Possession of Cocaine: five years at hard labor, plus a $1,000
fine;

Possession of Hydrocodone with Intent to Distribute: Eight
years at hard labor, plus a fine.

All sentences were ordered to run concurrently

Defendant now appeals, asserting a single assignment of error. The

appeals have been lodged with three docket numbers.

ERRORS PATENT

This court reviews all appeals for errors patent on the face of the

record pursuant to La.Code Crim.P. art 920.

After reviewing the record, we first find an error patent in docket

number 12-313. The bill of information erroneously cites La.R.S.

40:967(A)(2) for possession with intent to distribute cocaine. The bill

indicates that the substance Defendant possessed with intent to distribute

was cocaine, not a counterfeit controlled dangerous substance. Thus, the

correct citation for the offense is La.R.S. 40:967(A)(1). Further, we find an

error patent involving the bill of information filed in docket number 80507,

appeal docket number 12-314. The bill of information erroneously cites

La.R.S. 40:967(F) for possession with intent to distribute hydrocodone. The
2

correct citation for the offense is La.R.S. 40:967(A)(1). Additionally, Count

II erroneously listed La.R.S. 40:969(F) as the citation for possession with

intent to distribute Xanax, when the correct citation is La.R.S. 40:969(A)(1),

and it listed Xanax as a “Schedule III” rather than a Schedule IV drug.

The erroneous citation of a statute in the charging instrument is

harmless error as long as the error does not mislead Defendant to his

prejudice. La.Code Crim.P. art. 464. The Defendant does not allege any

prejudice because of the erroneous citation; thus, any error is harmless.

Additionally, by entering an unqualified plea, the Defendant waived review

of this non-jurisdictional pre-plea defect. See State v. Crosby, 338 So.2d 584

(La.1976). Accordingly, these errors are harmless and/or are waived. State

v. Allen, 09-1281 (La.App. 3 Cir. 5/5/10), 36 So.3d 1091.

EXCESSIVE SENTENCE

In his sole assignment of error, Defendant argues that his eighteen-

year total sentence is excessive. As noted by the State, Defendant‟s plea

agreement included a twenty-five-year sentencing cap. Further, the State

cites La.Code Crim.P. art 881.1(A)(2): “The defendant cannot appeal or seek

review of a sentence imposed in conformity with a plea agreement which

was set forth in the record at the time of the plea.”

This court has explained:

In State v. Roberts, 08-1026, p. 11 (La.App. 3 Cir.
3/4/09), 4 So.3d 1011, 1019, this court discussed a defendant's
right to seek review of a sentence imposed in accordance with a
plea agreement:

Louisiana Code of Criminal Procedure
Article 881.2(A)(2) provides that a “defendant
cannot appeal or seek review of a sentence
imposed in conformity with a plea agreement
which was set forth in the record at the time of the
plea.” It is uncontested that Defendant entered
3

into a plea agreement with the State that included a
ten-year sentencing cap. Defendant was sentenced
within the terms of his plea agreement. Therefore,
he is precluded from seeking a review of his
sentence on appeal. See State v. Washington, 07-
852 (La.App. 3 Cir. 1/30/08), 977 So.2d 1060.

In the present case, the Defendant pled guilty to first
degree robbery, which is punishable by imprisonment at hard
labor for not less than three nor more than forty years, without
benefit of probation, parole, or suspension of sentence. La.
R.S. 14:64.1. As part of the plea agreement, the parties agreed
to a sentencing cap of fifteen years. The Defendant was
sentenced to fifteen years. Because the sentence imposed was
within the agreed upon sentencing cap, the Defendant may not
seek review of the sentence. Accordingly, this assignment of
error will not be considered.

The Defendant has raised no other issues for review by
this court. Consequently, and finding no error patent on the
face of the record, we affirm the sentence imposed on the
Defendant.

State v. Percy, 09-1319 p. 2 (La.App. 3 Cir. 5/5/10), 36 So.3d 1115, 1116,

writ denied, 10-1253 (La. 12/17/10), 51 So.3d 17.

Thus, review of the present sentence is precluded. We further note

that the total sentence received by Defendant was seven years less than the

agreed-upon cap.

However, Defendant cites State v. Foster, 42,212 (La.App. 2 Cir.

8/15/07), 962 So.2d 1214, a decision that allowed a defendant to appeal his

sentence despite the existence of a sentencing cap. The trial judge in Foster

specifically told the defendant he was waiving his right to appeal “„except as

to the amount of the sentence.‟” Id. at 1216. In the current case, Defendant

notes that the trial court advised him that “under Article 914, any appeal

must be taken by written motion or oral motion in open court made no later

than thirty days after the judgment or ruling from which the appeal is taken.”

The second circuit has stated another basis for review:

4

[T]his court has allowed a defendant‟s sentence to be reviewed
in cases in which the defendant is informed of the right to
appeal by the trial judge during the plea colloquy, even though
there was an agreed upon sentence or sentencing cap. This
court reasoned that to do otherwise might raise the issue of
whether the advisement of the right to appeal had any effect on
the voluntariness of the plea. See, State v. Scott, 44,509
(La.App.2d Cir.8/19/09), 17 So.3d 1058; State v. Fizer, 43,271
(La.App.2d Cir.6/4/08), 986 So.2d 243; State v. Foster, supra.

State v. Vance, 45,250, pp. 2-3 (La.App. 2 Cir. 5/19/10), 36 So.3d 1152,

1155.

In the present case, the statement appeared in the midst of ministerial

advisements by the court:

I advise you, sir, that, pursuant to Code of Criminal Procedure
Article 894.1D, your sentence was not enhanced upon the basis
of any habitual offender proceedings. And, that, under Article
914, any appeal must be taken by written motion or oral motion
in open court made no later than thirty days after the judgment
or ruling from which the appeal is taken. And, under Article
930.8, any proceeding for post-conviction relief, subject to the
exceptions set forth therein, must be filed within a period of
two years from the date this conviction and sentence becomes
final. That‟s the sentence of the court and I remand him to the
custody of the Sheriff.

Further, Defense counsel stated the plea agreement on the record:

Your Honor, the State and the Defense are recommending also
in conjunction with that that there be a, a cap of a twenty-five-
year sentence on this for Mr. Nix. Some of these offenses carry
potentially more time than that. We are also recommending
that all sentences run concurrent with each other and that there
be a forfeiture of any items seized, that there by no habitual
offender filed on this defendant; and, of course, Your Honor, at
sentencing we are asking and recommending that this -- the
court would recommend to DOC that he placed in the Blue
Walters Substance Abuse Program if, if the court decides to
place him in DOC custody. At this time, Your Honor, I have a
Waiver of Constitutional Rights and Plea of Guilty Form I‟m
going to file into the record. I believe that is the entirety of the
agreement.

Later, the trial judge and Defendant engaged in the following

colloquy:
5

Q. All right, sir. Now, Ms. Nelson and Mr. Anderson
explained on the record what the plea agreement was -- that is
what charges you would plead to, what charges would be
dismissed, a recommendation as far as the sentence goes, an
agreement as to a cap, forfeiture of some seized property,
waiver of right to seek habitual offender status against you, and
a request for some drug treatment while you were incarcerated.
Did you hear all that?

A. Yes.

Q. All right, sir. Did they leave anything out that you have
been led to believe is part of the deal?

A. No.

Q. All right. Now, in particular, they haven‟t -- your
attorney hasn‟t promised you you‟re going to get a particular
sentence from me, did she?

A. No.

Q. In other words, all, all they -- all that they‟ve done and
agreed to is a, a limitation on the maximum of twenty-five
years. Do you understand that?

A. Yes.

Also, the plea form states that Defendant gave up the right to appeal. In the

context of a defendant‟s effort to withdraw a guilty plea, this court, in State

v. Senterfitt, 00-415, pp. 5-6 (La.App. 3 Cir. 9/27/00), 771 So.2d 198, 202,

writ denied, 00-2980 (La. 9/28/01), 798 So.2d 107 (footnotes omitted),

stated that:

At the hearing on the motion to withdraw his plea, Mr.
Senterfitt testified that his attorney had not told him that he
could not appeal a sentence which had been imposed with a
sentencing cap. No one called his attorney to testify at the
hearing, and there is no mention in the plea transcript that the
trial court addressed his appeal rights or that Mr. Senterfitt
waived them.

The first inquiry that must be made in resolving his
allegation is whether by entry of his guilty plea he waived his
right to appeal his sentence. A plea bargain existed with a
sentencing cap. Consequently, in accordance with La.Code
Crim.P. art. 881.2(A)(2) as interpreted by State v. Young, [96-
6

195 (La.10/15/96); 680 So.2d 1171], Mr. Senterfitt is
precluded from appealing his three-year sentence. The next
inquiry is whether his lack of knowledge of this fact affected
the voluntariness of the plea. We found no statutory or
jurisprudential authority requiring a defendant to specifically
waive his right to appeal before a valid guilty plea can be
entered. To the contrary, the first circuit held in State v.
Sorenson, [98-520 (La.App. 1 Cir. 12/28/98); 725 So.2d 604,
606] that “[p]resently, there is no legal requirement that a trial
court obtain a waiver of the right to judicial review as a
prerequisite to the applicability of the rule of article
881.2(A)(2).” Therefore, we hold that the trial court was not
required to advise him that he could not appeal his sentence nor
was he required to obtain a waiver of his right to appeal. The
Defendant bore the burden of proving that he had not
voluntarily entered his plea. Mr. Senterfitt‟s testimony that his
attorney did not inform him that if he pled guilty, as part of a
plea bargain with a sentencing cap, he would not be able to
appeal his sentence was uncontroverted. However, that fact,
alone, does not necessarily lead to the conclusion that he did
not knowingly and intelligently make his plea.

Pursuant to Senterfitt, the trial judge was not required to advise

Defendant that he was waiving his right to appeal. In, State v. Washington,

07-852, pp. 2-3 (La.App. 3 Cir. 1/30/08), 977 So.2d 1060, 1061, a case more

pertinent to the present set of facts, this court explained that:

The Defendant alleges that, as part of his plea agreement,
it was agreed that he would be able to seek review of his
sentence on appeal. Despite the Defendant‟s allegations, our
review of the plea agreement, which the Defendant signed,
reveals that there was no such reservation of the right to appeal
for anything other than jurisdictional defects. Furthermore, the
Defendant does not raise any jurisdictional challenges in his
brief; therefore, there is no basis to review his sentence.

However, the sentencing transcript does reflect the fact
that the trial judge made the following statement: “[y]ou are
advised that you can appeal any or all of these proceedings. . .
.” Although the trial court may have given the Defendant the
idea or impression that he was entitled to appeal his sentence,
he is in fact precluded from doing so under La.Code Crim.P.
art. 881.2(A)(2). See Myles, 882 So.2d 1254. See also State v.
Senterfitt, 00-415 (La.App. 3 Cir. 9/27/00), 771 So.2d 198, writ
denied, 00-2980 (La.9/28/01), 798 So.2d 107, where this court
held that defendant failed to prove that the guilty plea that
included a sentencing cap was not voluntary, even though
defense counsel failed to inform the defendant that he would
7

not be able to appeal his sentence if he entered into a plea
agreement.

Based on the foregoing reasons, the Defendant is
precluded from seeking review of his sentence.

Defendant suggests that both he and his counsel thought he had

retained the right to appeal his sentence. To the extent Defendant implies his

counsel was ineffective, we note that such an argument may be raised in the

post-conviction process, where the record may be further developed

regarding communications between Defendant and his trial counsel.

Accordingly, the sentence will not be reviewed.

CONCLUSION

The felony sentences are affirmed. The misdemeanor guilty pleas and

sentences are severed and Defendant is given thirty days to file a writ of

review.

FELONY SENTENCES AFFIRMED; MISDEMEANOR CHARGES

SEVERED.

8