STATE OF LOUISIANA VERSUS PHILIP L. COLLINS
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA NO. 02-KA-655 COURT OF APPEAL VERSUS En 70 ciecurr PHILIP L. COLLINS FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 99-2224, DIVISION "H" HONORABLE KERNAN A. HAND, JUDGE NOVEMBER 13, 2002 THOMAS F. DALEY JUDGE Panel composed of Judges Edward A. Dufresne, Jr., Sol Gothard, and Thomas F. Daley PAUL D. CONNICK, JR., DISTRICT ATTORNEY THOMAS J. BUTLER, TERRY M. BOUDREAUX, FRANK A. BRINDISI, NANCY A. MILLER, ASSISTANT DISTRICT ATTORNEYS 24th Judicial District Parish of Jefferson Courthouse Annex Gretna, Louisiana 70053 ATTORNEYS FOR PLAINTIFF/APPELLEE HOLLI HERRLE-CASTILLO Post Office Box 2333 Marrero, Louisiana 70073 ATTORNEY FOR DEFENDANT/APPELLANT AFFIRMED; REMANDED WITH INSTRUCTIONS Defendant Philip L. Collins appeals his sentence, as a second felony offender, for aggravated battery. Collins received a 20 year sentence after stipulating to the allegations in the multiple bill. For the following reasons, we affirm. We remand the case with instructions for the trial judge to properly notify the defendant of the provisions of LSA-C.Cr.P. art. 930.8 and to correct a minute entry as noted below. PROCEDURAL HISTORY AND FACTS The Jefferson Parish District Attorney filed a Bill ofInformation charging the defendant, Philip Collins, with attempted second degree murder, aviolation ofLSAR.S. 14:27:30.1. The defendantpled not guilty at arraignment. After waiving his rights to a jury trial, a bench trial was held on March 14, 2000. The trial judge found defendant guilty of the responsive verdict of aggravated battery. 2 On April 20, 2000, the trial judge sentenced the defendant to ten (10) years of imprisonment at hard labor. That day, the State filed a Bill of Information alleging defendant to be a second felony offender, and, after being advised of his rights as a multiple offender, the defendant stipulated to the allegations therein. The judge imposed an enhanced sentence of twenty (20) years at hard labor to be served concurrently with a sentence of two (2) years at hard labor in another case. The defendant moved for reconsideration ofhis sentence, which the court denied, and for an appeal, which the trial judge granted.' On January 20, 1999, at approximately 9:00 or 9:30 in the evening, the defendant was arrested after repeatedly beating Taneshia Buchanan, defendant's wife, outside of 435 Fourth Street in Gretna where she resided with her brother and his wife. At trial, Taneshia testified that she had just walked outside when she heard rustling in the bushes. Immediatelythereafter, Taneshia heard the defendant say, "B , you're not going to do this here," and felt a blow to the back ofher head. As she stumbled to the ground, Taneshia saw a pipe in the defendant's hands. Taneshia testified that the defendant repeatedly struck her with the pipe, and said, "B , I'm going to kill you . . . if I can't have you, nobody else can." Meanwhile, Taneshia's brother, Dewit Buchanan, and his wife Sheila, heard screaming outside. Dewit testified that he thoughtthe noise was the neighbor's music, so he did not immediately believe anything was amiss. Sheila, however, was concerned and looked out of the window, and saw the defendant beating Taneshia with a pipe. Dewit then opened the door and came outside, at which point, the defendant fled with the pipe. Dewit testified that he chased the defendant, who dropped the pipe during the pursuit. Dewit said that he was very angry because 1It is noted that defendant filed a pro se motion for an out-of-time appeal. The court ruled that the motion was moot, since defense counsel had already moved for an oral appeal at sentencing. 3 defendant had hurt Taneshia. After defendant dropped the pipe, Dewit picked it up and continued hunting for the defendant. Shelia told Dewit she had seen the defendant crawl underneath a raised house. However, before Dewit could reach the defendant, the police tackled Dewit, who was issued a misdemeanor summons for interfering with a police investigation. Officers Zemlick and Bealer ofthe Gretna Police Department responded to the scene. Officer Zemlick testified that initially defendant refused to abandon his hiding place, but was persuaded to come out with the assistance of the K-9 police dog. Officer Bealer found Taneshia lying against the fence in a vacant lot next to 435 Fourth Street. According to Officer Bealer, she had what appeared to be a laceration to her head, blood on her clothing, blood on her face and on her head. Officer Bealer said that Taneshia was conscious, and was hysterical. Officer Bealer called for the paramedics, and Taneshia was taken to the hospital. According to the medical records, Taneshia was diagnosed with a fracture to her wrist and contusions on her head and shoulder. Additionally, she received stitches in her head. At trial, Taneshia admitted she had written a notarized letter to the defendant's attorney in which she expressed a desire to drop the charges. However, she explained that the letter was prompted by advice from someone in an attorney's office in Minnesota who represented the defendant in an automobile accident. Taneshia acknowledged that she was told she would have to drop the charges in order to obtain any money from the lawsuit. The defendant did not testify at trial, but introduced five exhibits, including the letter, the police report, drawings made by the witnesses at trial, and Taneshia's medical records. 4 After closing arguments, the trial judge found defendant guilty of aggravated battery because thejudge believed defendant lacked the specific intent to kill Taneshia. ASSIGNMENT OF ERROR NUMBER ONE The defendant contends that his twenty (20) year sentence as a second felony offender is excessive. Defendant is precluded from challenging the enhanced sentence as excessive, since it was imposed pursuant to defendant's stipulation to the multiple offender Bill ofInformation. The record reflects that defendant signed a Waiver ofRights form in which he admitted that he was a second felony offender in exchange for a sentence of twenty (20) years at hard labor to run concurrently with a sentence in another case. The record further reflects that the trial judge informed defendant of the sentencing range for a second felony offender when he advised the defendant of his rights during the multiple bill proceedings. The trialjudge specificallytold defendant that his sentence would be twenty (20) years at hard labor, which would run concurrently with the other case. After defendant indicated that he understood the legal consequences of stipulating to the multiple bill, the trial judge accepted defendant's stipulation, and sentenced the defendant in conformity with the plea agreement. According to LSA-C.Cr.P. art. 881.2(A)(2), a "defendant cannot appeal or seek review ofa sentence imposed in conformitywith a plea agreement which was set forth in the record at the time ofthe plea." In State v. Young, 96-195 (La. 10/15/96), 680 So.2d 1171, the Louisiana Supreme Court held that LSA-C.Cr.P. art. 881.2(A)(2) encompassed plea agreements involving sentencing caps, as well as specific sentences. 5 This Court has held that a defendant's multiple offender sentence, imposed pursuant to a sentencing agreement made in exchange for a stipulation to a multiple offender bill, is not reviewable under LSA-C.Cr.P. art. 88 1.2(A)(2), in State v. Stanley, 98-920 (La. App. 5 Cir. 2/10/99), 729 So.2d 33, 37, writ denied, 99-614 (La. 6/25/99), 745 So.2d 1186. See also, State v. Charles, 00-664 (La. App. 1 Cir. 12/22/00), 775 So.2d 667, 670, writ denied, 01-1067 (La. 1/4/02), 805 So.2d 1186. Based on the foregoing, the defendant is precluded from challenging his sentence as excessive, since it was imposed in conformity with defendant's stipulation to the multiple offender bill. ERROR PATENT DISCUSSION The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The record reflects that the trial court failed to completely advise defendant of the prescriptive period for filing post-conviction relief as required by LSA-C.Cr.P. art. 930.8(C). The minute entry indicates that the defendant was accurately informed. However, the transcript is inconsistent with the minute entry, which indicates that the trial court informed defendant he had two years to file for post-conviction relief. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Accordingly, we remand the matterto allow the trial judge to accurately inform the defendant ofthe prescriptive period by sending written notice to him within ten (10) days of the rendition ofthis opinion and to file written proofin the record that defendant received such notice. State v. Kinsel, 00-1610 (La. App. 5 Cir. 3/28/01), 783 So.2d 532, writ denied, 01-1230 (La. 3/28/02), 812 So.2d 641. 6 There is an additional discrepancy between a minute entry and the transcript. Although the transcript, and the rest ofthe record, reflects that the defendant was tried for attempted second degree murder, the trial minute entry reflects that the defendant was on trial for second degree murder. To alleviate the possibility ofany confusion, we order the trial court to correct the minute entry on remand. Accordingly, the defendant's sentence is affirmed, and the case remanded with instructions for the trial court to take the corrective actions in the instances noted above. AFFIRMED; REMANDED WITH INSTRUCTIONS 7 PETER J. FITZGERALD, JR. CLERK OF COURT EDWARD A. DUFRESNE, JR. CHIEF JUDGE GENEVIEVE L. VERRETTE CHIEF DEPUTY CLERK SOL GOTHARD JAMES L. CANNELLA THOMAS F. DALEY MARION F. EDWARDS SUSAN M. CHEHARDY CLARENCE E. MCMANUS WALTER J. ROTHSCHILD FIFTH CIRCUIT STATE OF LOUISIANA GLYN RAE WAGUESPACK FIRST DEPUTY CLERK JERROLD B. PETERSON 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 JUDGES (504) 376-1400 (504) 376-1498 FAX GRETNA, LOUISIANA 70054 CERTIFIC_ATE I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN MAILOEDNOR D I O HS DAYO N EMBER 13] 00 REPRESENTED BY COUNSEL, AS LISTED BELOW: PETER). I CO ERAL , COUR / U.S. Postal Service CERTIFIED MAIL RECEIPT U.S. Postal Service CERTIFIED MAIL RECEIPT A ru (Domestic Mail Only; No insurance Coverage Provided) A ru (DomestÃc Mail Only; No Insurance Coverage Provided) Postage Postage Retu (Endorse Restrict Ms. Holli Herrle-Castillo Louisiana Appellate Project Attorney at Law P.O. Box 2333 (Endorse Marrero, LA 70073-2333 o (EndRo " nostret. (Endorsen Total P Mr. Terry M. Boudreaux Assistant District Attorney Fifth Floor - Annex Bldg. New Gretna Courthouse Gretna, Louisiana 70053 Sent To O Sent To or PO Box No. City, State, ZIP+ 4 $ $ ... ....... ............... City, State, ZIP+ 4
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