Opinion
NO. 2012 KA 0694
12-21-2012
STATE OF LOUISIANA v. JOE LOUIS FLORES
Ricky L. Babin District Attorney Donaldsonville, Louisiana Counsel for Plaintiff/Appellee State of Louisiana Donald D. Candell Assistant District Attorney Gonzales, Louisiana Frederick Kroenke Baton Rouge, Louisiana Counsel for Defendant/Appellant Joe Louis Flores Joe Louis Flores St. Gabriel, Louisiana
NOT DESIGNATED FOR PUBLICATION
Appealed from the
23rd Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Case No. 26617
The Honorable Ralph Tureau, Judge Presiding
Ricky L. Babin
District Attorney
Donaldsonville, Louisiana
Counsel for Plaintiff/Appellee
State of Louisiana
Donald D. Candell
Assistant District Attorney
Gonzales, Louisiana
Frederick Kroenke
Baton Rouge, Louisiana
Counsel for Defendant/Appellant
Joe Louis Flores
Joe Louis Flores
St. Gabriel, Louisiana
Defendant/Appellant
Pro Se
BEFORE: CARTER, C. J., GUIDRY, AND GAIDRY, JJ.
GAIDRY , J.
Defendant, Joe Louis Flores, and three codefendants were charged by grand jury indictment with one count of conspiracy to commit second degree murder, a violation of La. R.S. 14:26 and 14:30.1 (Count 1); one count of attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1 (Count 2); two counts of conspiracy to commit second degree battery, violations of La. R.S. 14:26 and 14:34.1 (Counts 3 & 5); two counts of second degree battery, violations of La. R.S. 14:34.1 (Counts 4 & 6); one count of attempted second degree murder for the promotion, furtherance, or assistance of criminal gang activity, a violation of La. R.S. 14:30.1 and 15:1403(B) (Count 7); and two counts of second degree battery for the promotion, furtherance, or assistance of criminal gang activity, violations of La. R.S. 14:34.1 and 15:1403(B) (Counts 8 & 9). Defendant initially pled not guilty to all counts. Thereafter, pursuant to a written plea agreement, defendant withdrew his former plea of not guilty, and he entered a plea of guilty to the amended charges of one count of attempted manslaughter, a violation of La. R.S. 14:27 and 14:31, and two counts of second degree battery. All other charges were dismissed. Under the terms of this plea agreement, the state agreed to cap defendant's maximum sentences on each count at ten years imprisonment, with all sentences to run concurrently.After ordering a presentencing investigation and conducting a sentencing hearing, the trial court sentenced defendant to ten years at hard labor on his attempted manslaughter conviction, and five years at hard labor on each of his second degree battery convictions. In conformity with the plea agreement, the trial court ordered these sentences to run concurrently with each other. Defendant now appeals, alleging one counseled and three pro se assignments of error, all challenging his sentences. For the following reasons, we affirm defendant's convictions and sentences.
These three codefendants pled guilty, but they are not part of the instant appeal.
We note that under La. R.S. 14:34.1 the maximum term of imprisonment for second degree battery is five years, with or without hard labor - not ten years.
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FACTS
Because defendant pled guilty, the facts were not developed at trial. The following facts were stipulated to by defendant as the factual basis for his guilty pleas and adapted for the purposes of this appeal.
On or about February 24, 2010, defendant engaged in a fistfight with Steven Hoff at Fred's on the River, a bar in Ascension Parish. Defendant intended to inflict serious bodily injury on Mr. Hoff, and Mr. Hoff suffered extreme physical pain. Subsequently, defendant produced a gun and shot Mr. Hoff four times. Defendant then participated in a beating of Brian McDonald with the intent to inflict serious bodily injury. As a result of this beating, Mr. McDonald also suffered extreme physical pain.
ASSIGNMENTS OF ERROR
All of defendant's assignments of error, both counseled and pro se, allege that his sentences are constitutionally excessive. In his only counseled assignment of error and his third pro se assignment of error, defendant alleges that his maximum sentences under the terms of the plea bargain were excessive because defendant is not in the worst class of offenders. In his first pro se assignment of error, defendant argues that the trial court failed to adequately consider any mitigating evidence under La. Code Crim. P. art. 894.1. Finally, in his second pro se assignment of error, defendant states that "[t]he facts of the case and the evidence adduced at the sentencing hearing actually changed the nature of the mens rea of the offense which the state would have been required to prove[, and] that fact alone changed the responsibility of the trial court in looking to the sentencing guidelines" in La. Code Crim. P. art. 894.1.
Prior to pleading guilty, defendant entered into a written plea agreement with the state. Under the terms of this agreement, the state allowed defendant to receive the benefit of a maximum cap of ten years imprisonment "on all counts to run concurrently with each other." We note that the ten-year cap on each of defendant's second degree battery convictions was clearly an oversight since the maximum term of imprisonment for second degree battery is five years, with or without hard labor. However, we find that this mistake does not affect the validity of defendant's plea agreement because defendant was not sentenced over the statutory maximum on these counts. Defendant did not reserve the right to challenge his sentences on appeal as part of his plea agreement.
Thus, defendant voluntarily and with the assistance of counsel decided to enter into a plea agreement so that he would not be subjected to a term of imprisonment longer than a total of ten years for all of the charges against him. Defendant was subsequently sentenced within the agreed upon range. Therefore, we find that La. Code Crim. P. art. 881.2(A)(2) precludes defendant from appealing his sentences, which were imposed in conformity with a plea agreement which was set forth in the record at the time of his plea. See State v. Young, 96-0195 (La. 10/15/96), 680 So.2d 1171, 1175; State v. Sorenson, 98-0520 (La. App. 1st Cir. 12/28/98), 725 So.2d 604, 606. Consequently, we do not address his assignments of error challenging his sentence as excessive. Compare State v. Shipp, 98-2670 (La. App. 1st Cir. 9/24/99), 754 So.2d 1068, 1071-72 (finding that a specific sentence imposed under a plea agreement can be reviewed for excessiveness where defendant explicitly reserved that right of review in his plea agreement). Defendant's counseled and pro se assignments of error are meritless.
DECREE
For the foregoing reasons, we affirm defendant's convictions and sentences.
CONVICTIONS AND SENTENCES AFFIRMED.