Opinion
No. 81-KA-0347.
September 28, 1981.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE LOUIS G. DESONNIER, JR., J.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Steve Wimberly, Kenneth Sanders, Asst. Dist. Attys., for plaintiff-appellee.
Robert T. Garrity, Joseph Montgomery, Metairie, of Indigent Defender Bd., for defendant-appellant.
Defendant plead guilty to aggravated crime against nature in violation of LSA-R.S. 14:89.1 and was sentenced to nine years at hard labor. He has appealed, urging two errors.
The first assignment is that the trial court failed to properly inform defendant of his rights as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). At the time of the guilty plea, the trial court informed defendant that he was waiving his right to trial by jury, the right to confront his accusers and the privilege against self-incrimination. This assignment is without merit.
The second contention is that the sentence is excessive. The sentence resulted from a plea bargain which was agreed to by defendant, his counsel, the State, and the trial court. Defendant cannot now complain that the sentence is excessive. State v. Curry, 400 So.2d 614 (La., 1981). This assignment is without merit.
Accordingly, the conviction and sentence of defendant are affirmed.
AFFIRMED.
DENNIS, J., dissents with reason.
I respectfully dissent.
The guarantee against cruel, excessive, or unusual punishment is a constitutional safeguard. La. Const. Art. I, § 20. The mere fact that an accused enters a plea bargain does not necessarily establish that his waiver of this constitutional right was knowing or voluntary. Accordingly, in my opinion, a plea bargain cannot operate as an absolute bar to the challenge of a sentence as excessive. Nor does State v. Curry, 400 So.2d 614 (La. 1981) stand for this proposition. In that case, this court, with only four of its permanent members sitting, expressed the opinion that under the circumstances therein, there was no necessity of listing enumerated reasons and that the defendant cannot complain of excessive length. I respectfully disagree with both the dicta of Curry and the present majority's misinterpretation of it. Although I agree that the failure of the trial judge to comply with his duty under La.C.Cr.P. art. 894.1 does not require that the sentence be set aside if the record otherwise clearly illumines his sentencing choice and demonstrates that the sentence is not arbitrary or excessive, State v. Martin, 400 So.2d 1063, on rehearing, 400 So.2d 1074 (La. 1981), our review for constitutional error cannot be precluded by a defendant's agreement to plead guilty or to receive a particular sentence.