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State v. Roe6/1/2005
Court composed of John D. Saunders, Oswald A. Decuir, and Marc T. Amy, Judges.
AFFIRMED. REMANDED WITH INSTRUCTIONS.
The defendant pled guilty to one count of aggravated second degree battery in violation of La.R.S. 14:34.7, and was sentenced to serve three years at hard labor and pay restitution to the victim. The defendant appeals, asserting that he pled guilty based on the belief that he would receive a probated sentence as part of his plea agreement. He alleges that the trial court erred in not determining that he understood that his sentence could be imposed at hard labor, and in not allowing him to withdraw his guilty plea after his sentencing. For the following reasons, we affirm, and remand with instructions.
Factual and Procedural Background
According to the factual basis provided by the State at the defendant's guilty plea hearing, on August 31, 2003, the defendant, Roy D. Roe, entered a residence where his estranged wife was residing. He found her and Darren Treadway in the bedroom and began to strike Mr. Treadway repeatedly, causing him serious injuries which required his hospitalization for twelve days. When the police apprehended the defendant later that afternoon, they found blood on his hands. He subsequently provided a statement that he had gone to the residence and beaten Mr. Treadway.
The State charged the defendant by bill of information on October 14, 2003 with one count of aggravated burglary, in violation of La.R.S. 14:60(3), and one count of second degree battery, in violation of La.R.S. 14:34.1. On May 10, 2004, the day the matter was scheduled for jury trial, the State amended the bill of information to charge the defendant with aggravated second degree battery, in violation of La.R.S 14:34.7. On the same day, the defendant indicated that he wished to plead guilty to the aggravated second degree battery charge, and the trial court conducted a Boykin hearing. During the guilty plea hearing, the district court advised the defendant of his rights, the State offered a factual basis for the plea, the parties waived all motions, and the trial court accepted the defendant's guilty plea.
After accepting the defendant's guilty plea, the district court ordered a presentence investigation and set the sentencing hearing for July 22, 2004. At the sentencing hearing, the trial court listened to a victim impact statement given by the victim's mother and reviewed its findings based on the pre-sentence investigation report. Based thereon, the district court sentenced the defendant to serve three years at hard labor, recommended participation in an impact program, and ordered the defendant to pay $56,000.00 in restitution to the victim for medical expenses.
On August 20, 2004, the defendant filed a "Motion for Reconsideration of Sentence and in the Alternative, Withdrawal of Guilty Plea[.]" Following a hearing on December 15, 2004, the trial court denied the motion. The defendant now appeals, asserting the following assignments of error:
ASSIGNMENT OF ERROR NO. 1[.]
The trial court erred by not informing the defendant of, and determining that he understood the nature of the charge to which he pled, as well as the maximum sentence provided by law.
ASSIGNMENT OF ERROR NO. 2[.]
The trial court erred in not allowing the defendant to withdraw his plea of guilty as not being knowing and voluntary when he was advised that he was to be given a probated sentence under [Louisiana] Code of Criminal Procedure Article 893 and then was sentenced to a term of imprisonment of 3 years at hard labor.
Discussion
Errors Patent
In ac
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