State of Louisiana v. Sherman D. Sharp

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 13-1123

STATE OF LOUISIANA

VERSUS

SHERMAN D. SHARP

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APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NO. 96665
HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John E. Conery, Judges.

AFFIRMED.

Kevin V. Boshea
Attorney At Law
2955 Ridgelake Drive, Suite 207
Metairie, Louisiana 70002
(504) 834-2114
COUNSEL FOR DEFENDANT/APPELLANT:
Sherman D. Sharp

J. Reed Walters
District Attorney
28th Judicial District Court
Post Office Box 1940
Jena, Louisiana 71342
(318) 992-8282
COUNSEL FOR APPELLEE:
State of Louisiana

CONERY, Judge.

On July 2, 2012, Defendant, Sherman D. Sharp, was charged by bill of

information with one count of manufacturing methamphetamine, a violation of

La.R.S. 40:967(A)(1), and one count of conspiracy to manufacture

methamphetamine, a violation of La.R.S. 14:26 and La.R.S. 40:967(A)(1).

Defendant entered a not-guilty plea to the charges. Thereafter, on January 28,

2013, Defendant attempted to enter a plea to an amended charge of operation of a

clandestine methamphetamine lab. Because Defendant did not admit to the factual

basis that he was operating the methamphetamine lab, the State withdrew the plea

offer, intending to try Defendant on the original charges immediately following the

trial of his co-defendant, Bobby Buras. On January 31, 2013, after co-defendant

Bobby Buras was convicted of both manufacturing methamphetamine and

conspiracy to manufacture methamphetamine, Defendant entered a guilty plea to

one count of manufacturing methamphetamine in exchange for the State’s

dismissal of count two, conspiracy to manufacture methamphetamine. The plea

was open ended as to any sentence that would be imposed. The trial court set

sentencing for August 6, 2013, and ordered a pre-sentence investigation (PSI) to be

conducted by the Department of Public Safety and Corrections.

After Defendant pled guilty, he retained new defense counsel who filed a

motion to withdraw guilty plea on March 4, 2013. After an evidentiary hearing on

June 11, 2013, the trial court denied the motion to withdraw guilty plea and gave

extensive oral reasons. On that same date, Defendant’s attorney filed a motion for

appeal which was granted by the trial court on June 12, 2013. On September 18,

2013, however, this court dismissed the appeal because sentence had not yet been

imposed. State v. Sharp, 13-831 (La.App. 3 Cir. 9/18/13) (unpublished opinion).

After a sentencing hearing held on August 6, 2013, the trial court sentenced

Defendant to ten years at hard labor without benefit of probation, parole, or

suspension of sentence and recommended that Defendant be incarcerated in a

facility that offers drug rehabilitation and treatment. The trial court also

recommended that Defendant enroll in and complete a certified GED program

during incarceration. Finally, the trial court cast Defendant with all court costs and

$150.00 for the preparation of the PSI.

On the same day as sentencing, defense counsel filed a motion to reconsider

sentence, which was set to be heard on September 10, 2013. After sentencing on

August 6, 2013, defense counsel also filed a motion for appeal, which was granted.

On September 6, 2013, defense counsel filed a “Motion to Depart from Mandatory

Minimum Sentence Pursuant to State v. Dorthey.” The trial court denied the latter

motion on September 9, 2013, without a hearing.

Defendant once again sought review in this court. However, because the

trial court had not ruled on Defendant’s motion to reconsider sentence, this court

issued an order on September 23, 2013, remanding the case for disposition of the

motion to reconsider sentence. Thereafter, on October 1, 2013, this court received

a new appellate record containing court minutes from September 24, 2013.

According to the minutes, neither Defendant nor his counsel were present at the

motion to reconsider sentence. The minutes state, “RULING OF THE COURT:

The Motion to Reconsider Sentence is moot and denied by the Court.”

Defendant is now before this court challenging both the trial court’s denial

of his motion to withdraw guilty plea and the trial court’s denial of his motion to

reconsider sentence. For the following reasons, we affirm.

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FACTS

The following factual basis was set forth at Defendant’s guilty plea:

Judge, as you will recall in the companion case of State versus
Bobby Buras, . . . Mr. Sharp along with Mr. Buras were at a camper
trailer here in the Belah community in LaSalle Parish on May 22,
2012. They were in the process of making methamphetamines for Mr.
Randy Morris. Mr. Sharp so indicated to Detective Leland Guin at the
scene after miranda.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find no

errors patent.

ASSIGNMENTS OF ERROR

Defendant raised the following assignments of error:

1. The district court respectfully erred in the denial of the motion to
withdraw guilty plea.

2. The guilty plea in this matter is legally infirm and should be
vacated.

3. The district court respectfully erred in the denial of the motion to
reconsider sentence.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In his first two assignments of error, Defendant alleges that the trial court

erred in denying his motion to withdraw guilty plea, arguing that his guilty plea is

legally infirm and should be vacated. In support of this allegation, Defendant

claims that he was informed of the incorrect sentencing range when he pled guilty,

that the lab report contained in the record indicates no controlled dangerous

substances were identified, that the State’s witnesses indicated only that Defendant

was present at the scene, and that Defendant did not fully understand the

consequences of his actions in pleading guilty. Although appellate counsel states

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that the issue is “not (yet) ineffective assistance of counsel,” appellate counsel also

contends that the attorney representing Defendant at the time of his plea should

have known about the negative lab report, should have known of the lack of

evidence against Defendant, and should have realized the trial court informed

Defendant of the incorrect penalty range. Additionally, appellate counsel argues

that Defendant’s attorney was responsible for making sure Defendant understood

the consequences of his plea.

Trial Court’s Advisement of Incorrect Sentencing Range

Appellate counsel alleges that Defendant’s plea is constitutionally infirm

because the trial court informed him of the wrong penalty range at the guilty-plea

proceeding. The penalty provision for manufacturing methamphetamine, La.R.S.

40:967(B)(3)(a), is imprisonment at hard labor for not less than ten years nor more

than thirty years, at least ten years of which shall be served without benefit of

parole, probation, or suspension of sentence, and a possible fine of not more than

$500,000.00. At Defendant’s guilty-plea proceeding, however, the trial court

informed Defendant that the applicable penalty range was “a term of imprisonment

for not less than two years nor more than thirty years” with a potential “fine of not

more than $50,000.00.” At sentencing, the trial court recited the correct penalty

range and sentenced Defendant to the minimum sentence of ten years at hard labor

without benefit of probation, parole, or suspension of sentence. Defendant’s

counsel did not object at the guilty-plea proceeding to the trial court’s

misinformation as to the sentencing range, nor did he object at sentencing or allege

the same as grounds for withdrawing the plea. For the first time on appeal,

appellate counsel argues that Defendant’s guilty plea is infirm based on the trial

court’s misinformation as to the sentencing range at the guilty-plea proceeding.

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In this case, Defendant is unable to show on the present record whether the

trial court’s misinformation affected the voluntariness of Defendant’s plea. The

State filed two counts, but Defendant was only sentenced to the minimum sentence

for count one, manufacturing methamphetamine, because he voluntarily entered a

plea in exchange for the State dropping count two, conspiracy to manufacture

methamphetamine. Thus, Defendant received substantial benefit from the plea

agreement. Additionally, defense counsel did not raise the objection at the plea

hearing, sentencing, or in the motion to withdraw guilty plea. Therefore, we find

Defendant’s claim lacks merit. See State v. Martin, 12-395 (La.App. 3 Cir.

11/7/12), 120 So.3d 721(on rehearing); State in the Interest of C.H., 595 So.2d 713

(La.App. 5 Cir. 1992); and State v. Bickham, 98-1839 (La.App. 1 Cir. 6/25/99),

739 So.2d 887.

Negative Lab Report and Lack of Witnesses

Defendant also alleges that his guilty plea should be withdrawn based on the

lab report’s negative finding for controlled dangerous substances and the State’s

lack of witnesses against him. Appellate counsel notes that the record contains a

statement from Tina Morris which indicates that Defendant was merely present at

the scene, nothing more. Counsel neglects to point out the language setting forth

the factual basis set forth by the State at the guilty plea:

Judge, as you will recall in the companion case of State versus Bobby
Buras, . . . Mr. Sharp along with Mr. Buras were at a camper trailer
here in the Belah community in LaSalle Parish on May 22, 2012.
They were in the process of making methamphetamines for Mr.
Randy Morris. Mr. Sharp so indicated to Detective Leland Guin at the
scene after miranda.

Defendant was well aware of the factual basis based on the evidence at the

trial of his co-defendant, who had been found guilty shortly before Defendant’s

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plea. His attorney and his father had been present at that trial. The factual basis

placed in the record by the State was sufficient to support the elements of the

crime. Moreover, we find that by pleading guilty, Defendant waived his right to

complain that the evidence was insufficient. State v. Myers, 99-677 (La.App. 3

Cir. 12/8/99), 753 So.2d 898, writ denied, 00-53 (La. 6/23/00), 765 So.2d 1036.

Defendant Did Not Understand Consequences of Plea

In brief, appellate counsel contends that Defendant has considerable

difficulty understanding legal concepts given his limited education. At the motion-

to-withdraw-guilty-plea hearing, Defendant’s attorney argued that Defendant did

not understand the concepts involved in the case, that Defendant suffered from

cognitive dysfunction, and that Defendant’s original attorney should have had

Defendant evaluated to determine whether he had the intellectual ability to plead

guilty.

In State v. Montalban, 00-2739 (La. 2/26/02), 810 So.2d 1106, cert. denied,

537 U.S. 887, 123 S.Ct. 132 (2002), the supreme court stated that the trial court

must make an independent determination of whether the defendant’s plea is made

knowingly and intelligently.

Here, the record indicates the trial court explained all of Defendant’s rights

and clearly found that Defendant was able to understand his rights as well as the

elements of the crime charged. In its ruling denying the motion to withdraw guilty

plea, the trial court stated that it listened to testimony, listened to the arguments of

counsel, and reviewed the transcripts of both the attempted plea and final plea.

The trial court acknowledged that it advised Defendant of his rights at the January

28, 2013 guilty-plea proceeding that resulted in Defendant’s initial refusal of the

plea bargain. It also went over these rights again at the January 31, 2013 actual

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guilty-plea proceeding. The trial court additionally noted that there was no

indication when Defendant pled guilty that Defendant was cognitively

dysfunctional or had any trouble understanding what he was doing. At the guilty-

plea proceeding, Defendant stated that he went to school until the ninth grade, that

he could read and write the English language, and that there was nothing impairing

his ability to make a decision. When the trial court asked him if he had an

opportunity to discuss the plea bargain with his attorney, Defendant replied that he

did. Defendant also acknowledged that no promise had been made to him

regarding the sentence he would receive. Although Defendant’s father testified

that Defendant did not know what a blind plea was, Defendant did not have any

questions when the trial court explained that a blind plea was open ended with no

promise as to what the eventual sentence would be. Moreover, at the sentencing

hearing, the trial court noted that the PSI did not indicate that Defendant suffered

from any physical or mental disability. Finally, although Defendant’s original

attorney, Mr. Lemke, testified that Defendant had trouble understanding legal

concepts, Mr. Lemke did not feel his ability to serve as counsel was hampered or

that Defendant was incapable of standing trial.

Considering the abuse of discretion standard that must be applied to a trial

court’s denial of a motion to withdraw guilty plea, we find that the trial court did

not abuse his discretion in finding Defendant entered the guilty plea in this case

freely and voluntarily. See State v. Bourgeois, 406 So.2d 550 (La.1981).

Ineffective Assistance of Counsel

Appellate counsel contends that Mr. Lemke was ineffective for failing to

know about the negative lab report, for failing to know about the lack of evidence

against Defendant, for failing to know the correct penalty range, and for failing to

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make sure Defendant understood the consequences of his plea. However, appellate

counsel specifically stated that “[t]he issue here is not (yet) ineffective assistance

of counsel, but rather whether or not the guilty plea of Sherman Sharp is legally

infirm.” We find that the issue of whether or not Defendant’s original attorney,

Mr. Lemke, was ineffective is not before this court at this time.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, Defendant claims the trial court erred in

denying his motion to reconsider sentence. Although appellate counsel recognizes

that the trial court imposed the minimum sentence, appellate counsel claims that at

the time the plea was taken, the trial court was under the mistaken belief that the

minimum sentence was two years with benefits.

To justify a court’s downward departure from a legislatively mandated

sentence, a defendant must show “[h]e is exceptional, which in this context means

that because of unusual circumstances [he] is a victim of the legislature’s failure to

assign sentences that are meaningfully tailored to the culpability of the offender,

the gravity of the offense, and the circumstances of the case.” State v. Johnson,

97-1906, p. 8 (La. 3/4/98), 709 So.2d 672, 676 (quoting Judge Plotkin’s concurring

opinion in State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d

525, 531, writ denied, 95-3010 (La. 3/22/96), 669 So.2d 1223).

In the present case, Defendant has failed to prove that he is exceptional so as

to justify a sentence below the mandatory minimum sentence. Although the trial

court recited the wrong penalty range at the guilty plea, the trial court was well

aware of the penalty range at the sentencing hearing. No mention was made at that

time by the trial court, by the State, or by Defendant, that there was a surprise as to

the mandatory minimum sentence of ten years without benefits.

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In brief, appellate counsel argues that Defendant should receive a sentence

below the mandatory minimum because his criminal history is not significant and

his involvement in the offense is “non-existent.” Although the trial court at the

sentencing hearing recognized that Defendant was a first-time felony offender with

only misdemeanor charges, the trial court did not perceive Defendant’s

participation in the offense in this case as “non-existent.” The factual basis given

by the State as to Defendant’s direct involvement in the crime charged was

admitted by Defendant during his guilty-plea colloquy with the court. The trial

court stated that he felt that due to the nature of the offense, there was an undue

risk that Defendant would commit another crime if he ordered “solely a suspended

or probated sentence.” The trial court also stated that he believed that any lesser

sentence would deprecate the seriousness of the offense charged. Finally, in order

to help Defendant with his addiction, the trial court recommended that Defendant

be housed in a facility that offers drug rehabilitation and treatment. Considering

the trial court’s reasoning, Defendant has failed to show exceptional circumstances

to justify the imposition of a sentence below the mandatory minimum.

DISPOSITION

We find that Defendant’s assignments of error lack merit and Defendant’s

conviction and sentence are affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform

Rules––Courts of Appeal, Rule 2-16.3.

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