Opinion
No. 2007 KA 0184R.
May 2, 2008. NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE 16TH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. MARY, LOUISIANA TRIAL COURT NO. 167,113 HONORABLE GERARD B. WATTIGNY, JUDGE.
HON. J. PHIL HANEY, DISTRICT ATTORNEY, WALTER J. SENETTE, JR., ASSISTANT DISTRICT ATTORNEY, FRANKLIN, LA, ATTORNEYS FOR STATE OF LOUISIANA.
BERTHA M. HILLMAN, THIBODAUX, LA, ATTORNEY FOR DEFENDANT-APPELLANT
CARL ALLEN SHAY, COTTONPORT, LA, IN PROPER PERSON DEFENDANT-APPELLANT.
BEFORE: CARTER, C.J., PETTIGREW, AND WELCH, JJ.
The defendant, Carl Allen Shay, was charged by bill of information with possession with intent to distribute a Schedule II controlled dangerous substance, methamphetamine, a violation of La. R.S. 40:967(A)(1). He initially pled not guilty. Subsequently, the defendant entered into a plea agreement with the State. In exchange for the defendant's plea of guilty to the charged offense, the State agreed to dismiss any other charges against the defendant. The trial judge also agreed to sentence the defendant to imprisonment at hard labor for a term not to exceed ten years. Following a Boykin examination, the defendant withdrew his not guilty plea and pled guilty as charged. Subsequently, at the conclusion of a sentencing hearing, the trial court sentenced the defendant, in conformity with the plea agreement, to imprisonment at hard labor for nine and one-half years. The defendant moved for reconsideration of the sentence. The trial court denied the motion. The defendant appealed. This court, in an unpublished decision, dismissed the defendant's appeal as untimely. State v. Shay, 2007-0184 (La.App. 1 Cir. 2/21/07). The defendant sought supervisory review of this court's ruling with the Louisiana Supreme Court. The supreme court reversed the judgment dismissing the defendant's appeal and remanded the matter to this court for consideration of the defendant's assignments of error. State v. Shay, 2007-0624 (La. 10/26/07), 966 So.2d 562. Finding no merit in the assigned error, we affirm the defendant's conviction and sentence.
FACTS
Because the defendant pled guilty, the facts of the offense were never fully developed at a trial. The following factual basis was recited by the prosecutor at the Boykin hearing:
Judge, in Mr. Shay's case, on the date reflected in the bill of information, Louisiana State Police Narcotics [sic] received information that Mr. Shay was transporting methamphetamine in the area of Patterson, Louisiana. Based upon this information, they stopped a vehicle operated by — occupied by Mr. Shay. They found a small amount of methamphetamine in the vehicle and found a larger amount of methamphetamine that had been discarded pursuant to or at the time of the attempted stop of the vehicle. And Mr. Shay gave a statement to the police upon his arrest detailing his intent to distribute.
ASSIGNMENT OF ERROR EXCESSIVE SENTENCE
In his sole assignment of error, the defendant contends the trial court erred in imposing an excessive sentence. Specifically, he argues the trial court failed to adequately consider the relevant mitigating circumstances, particularly the risks he took by participating in "dangerous undercover operations" in cooperation with law enforcement.
Louisiana Code of Criminal Procedure article 881.2(A)(2) provides that "[t]he 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." The prohibition of this article is applicable to both agreed specific sentences and agreed sentence ranges or sentencing caps. See State v. Young, 96-0195, p. 5 (La. 10/15/96), 680 So.2d 1171, 1174; State v. Fairley, 97-1026, p. 4 (La.App. 1 Cir. 4/8/98), 711 So.2d 349, 352.
Initially we note that, contrary to the defendant's assertions in his brief, this case did not involve an "open-ended" sentence. The record before us clearly reflects that the defendant voluntarily entered into a plea agreement wherein he agreed, along with the trial judge and the prosecutor, that his sentence would be capped at ten years. Therefore, we find Article 881.2(A)(2) precludes the defendant from appealing his sentence imposed in conformity with a plea agreement set forth in the record at the time of his plea. Accordingly, this assignment of error lacks merit.
For the foregoing reasons, the defendant's conviction and sentence are affirmed.