State Of Louisiana VS Kenneth Ray Mayo
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 KA 2004 STATE OF LOUISIANA VERSUS KENNETH RAY MAYO Judgment rendered May 7 2010 Appealed from the 32nd Judicial District Court in and for the Parish of Terrebonne Louisiana Trial Court No 478 664 Honorable Randall L Bethancourt Judge JOSEPH L WAI Z JR ATTORNEYS FOR APPELLEE DISTRICT ATTORNEY STATE OF LOUISIANA LAWRENCE D WARD JR ELLEN DAIGLE DOSKEY ASSISTANY DISTRICT ATTORNEYS HOUMA LA FREDERICK KROENKE ATTORNEY FOR APPELLANT BATON ROUGE LA KENNETH R MAYO BEFORE CARTER C GUIDRY AND PETTIGREW 33 J PETTIGREW J The defendant Kenneth Ray Mayo was charged by bill of information with one count of distribution of cocaine a violation of La R 40 and pled not guilty S 967 1 A Pursuant to a plea agreement for an agreed upon sentence and in exchange for the agreement of the State not to file a habitual offender bill of information against him the defendant withdrew his former plea and pled guilty as charged He was sentenced to fifteen years at hard labor with the first two years of the sentence without the benefit of parole probation or suspension of sentence He now appeals designating the following assignments of error 1 The trial court erred in failing to state for the record those considerations taken into account and the factual basis for the sentence imposed 2 The trial court erred in imposing a sentence herein which is unconstitutionally excessive 3 The failure of trial counsel to file a motion to reconsider the sentence should not preclude this court from considering the constitutionality of the sentence and in the event that it does then the failure of trial counsel constitutes ineffective assistance of counsel For the following reasons we affirm the conviction and sentence FACTS Due to the defendant guilty plea there was no trial and thus no trial testimony s concerning the facts of the offense The State did not set forth a factual basis at the Boykin hearing The bill of information charged that the defendant committed the offense on August 18 2006 DISCUSSION In assignment of error number 1 the defendant argues the trial court failed to comply with La Code Crim P art 894 by imposing sentence without stating for the C 1 record the considerations taken into account and the factual basis therefor He also argues that the trial court failed to individualize the sentence See State v 3ackson 98 0004 p 8 La App 1 Cir 11 724 So 215 220 writ denied 983056 La 98 6 2d Boyidn v Alabama 395 U 238 89 S 1709 23 L 274 1969 S Ct 2d Ed 2 99 1 4 741 So 1283 In assignment of error number 2 the defendant argues the 2d trial court imposed an unconstitutionally excessive sentence In assignment of error number 3 the defendant argues that counsel was ineffective for failing to preserve review of the excessiveness of the sentence by moving for reconsideration of sentence A review of the transcript of the defendants guilty plea indicates the defendant seeks review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea La Code Crim P art 881 see State v Young 960195 p 7 La A 2 96 15 10 680 So 1171 1175 Moreover where a specific sentence has been agreed 2d to as a consequence of a plea bargain there is no need for the trial court to comply with Article 894 State v Mareno 530 So 593 601 La App 1 Cir writ denied C 1 2d 533 So 354 La 1988 Therefore the fact that trial defense counsel did not move for 2d reconsideration of sentence does not constitute deficient performance These assignments of error are without merit CONVICTION AND SENTENCE AFFIRMED 3
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