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State of Louisiana v Mickail

Case No. 45,786-KA (LA Ct. App., 2nd Circ., Nov. 3, 2010)

The defendant, Victoria G. Mickail, was charged with two counts of aggravated arson, two counts of simple arson, and two counts of obtaining a controlled dangerous substance (CDS) by fraud. Pursuant to a plea agreement, she was allowed to plead guilty to one count of aggravated arson, one count of simple arson, and one count of obtaining a CDS by fraud. She was sentenced to agreed-upon terms of 15 years at hard labor for the simple arson and five years at hard labor, suspended, with five years of supervised probation for the CDS charge. The plea bargain set a sentencing cap of 15 years for the aggravated arson; she received a sentence of 14½ years at hard labor, with the first two years to be served without benefit of parole, probation or suspension of sentence. Also pursuant to the plea agreement, the arson sentences were imposed concurrently with each other but consecutive to the CDS sentence. The defendant appeals. We affirm the defendant’s convictions and sentences.

FACTS
In July 2004, the defendant set two separate fires several days apart at the home of neighbors in Monroe; the house was a total loss. In the same time period, the defendant also set two separate fires several days apart at her own home. During the first fire at the defendant’s house, the defendant, her husband and one of her sons were inside; no one was injured. During the second fire, her husband was asleep upstairs; however, he was awakened by the smoke and escaped injury. Investigators discovered that the defendant had a history of arson and drug abuse.The defendant was charged with two counts of aggravated arson for the fires set at her own home and two counts of simple arson for the fires set at her neighbors’ home. She was also charged with two counts of obtaining CDS by fraud pertaining to drugs she obtained for her own use through a pharmacy where she worked as a pharmacist.
 

 

Judge(s): Gay Gaskins
Jurisdiction: Louisiana Court of Appeals, Second Circuit
Circuit Court Judge(s)
Gay Gaskins
Charles Peatross
James Stewart

 
Trial Court Judge(s)
Stephens Winters

 
Appellant Lawyer(s) Appellant Law Firm(s)
Anatole Plaisance Law Office
Andrew Lemmon Lemmon Law Firm LLC
Megan Methany Lemmon Law Firm LLC

 
Appellee Lawyer(s) Appellee Law Firm(s)
Jerry Jones Office of the District Attorney
Madeleine Slaughter-Young Office of the District Attorney

 

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the sentence was entered into as part of a plea agreement and the illegality in the instant case, the state, the defendant, and the trial court all v. strother, 43,363 (la. app. 2d cir. 8/20/08), 990 so. 2d 130, writ denied, with her 15-year sentence for simple arson. defendant during her incarceration and evidencing her rehabilitation to be time period, the defendant also set two separate fires several days apart at psychiatrist to satisfy the requirements of la. c. cr. p. art. 643. in other the defendant filed the instant appeal, asserting five assignments of sanity commission simply upon request. a trial judge is only required to dissociative disorder, and personality disorder with borderline, histrionic, hard labor without the benefit of parole, probation, or suspension of proceedings can only continue after the court holds a contradictory hearing weight, and the trial court's ruling thereon will not be disturbed on appeal reviewed. in dr. seiden's expert opinion, there was no evidence that the 5 court should have admitted "certificates of progress" evidencing her and object of the proceedings against him, to consult with counsel, and to the defendant was charged with two counts of aggravated arson for the defendant filed a timely motion to reconsider sentence in which plea agreement. mental capacity to proceed. la. c. cr. p. art. 643 provides, in pertinent part, sentenced the defendant on the aggravated arson charge to 14 years at additionally, he found no evidence that she could not distinguish right from upon sentence of 15 years at hard labor, the maximum possible term of conclusion this assignment of error lacks merit. plea bargain 356. fourth judicial district court for the that the defendant was capable of standing trial and again denied her motion victoria g. mickail appellant defendant and her counsel to review the original psi report. the trial court issued a report to the state which detailed all of the medical records he 4 trial, and the trial judge substantially complied with the dictates of la. cds by fraud pertaining to drugs she obtained for her own use through a arson, one count of simple arson, and one count of obtaining a cds by law agreed-upon sentences and a sentencing cap. she initially received an versus state of louisiana these assignments of error are without merit. imprisonment, for the simple arson charge. as to the cds charge, the plea of aggravated arson, the trial court sentenced the defendant to 14 years at defendant "suffered from any mental disease or defect that interfered with after this court remanded the case to the trial court for resentencing, state, 2000-2738, p. 5 (la. 10/25/02), 831 so. 2d 828, 832. arson, one count of simple arson, and one count of obtaining cds by fraud. defendant should be afforded a mental examination to determine capacity. 2008-2289 (la. 5/15/09), 8 so. 3d 580. judge to give reasons for the sentence as normally required by la. c. cr. p. the defendant filed a motion requesting that a supplemental psi report be defendant had a history of arson and drug abuse. steps in the criminal prosecution until the defendant is found to have the these certificates pertain to the defendant's participation in various religious and/or aggravated arson and the imposition of the "without benefits" provision to without benefits. on a writ application, this court instructed the trial court but consecutive to the cds sentence. the defendant appeals. we affirm affirmed. trial court no. 04-f1736 the second fire, her husband was asleep upstairs; however, he was awakened range cannot be appealed as excessive, and there is no need for the trial imposed without benefit of parole, probation, or suspension of sentence; the the simple arson and five years at hard labor, suspended, with five years of proceed may be raised at any time by the defense, the district attorney, or 3 compiled, a defendant is entitled to a fair and accurate report. state v. corrected the aggravated arson sentence as instructed by this court. since in july 2007, the defendant withdrew her pleas of not guilty and not defendants have no constitutional or other right to demand a 8/15/07), 962 so. 2d 1214; state v. small, 44,554 (la. app. 2d cir. c. cr. p. art. 647; state ex rel. seals v. state, supra at 832-33. this the trial court reversed itself as to the admission of the certificates. the sentences for the arsons were to be served concurrently with each other and a right of review pertaining to that sentence. dependent and avoidant features. dr. seiden saw her in may 2007. he the defendant entered a plea of not guilty and not guilty by reason of was examined by dr. saxon elliott, a clinical psychologist, and dr. george 10 the entire sentence. she asserted that the sentence was excessive and would guilty by reason of insanity. she then pled guilty to one count of aggravated the record contains ample evidence demonstrating the defendant's seiden, a psychiatrist. dr. elliott saw the defendant in may 2006. in his consecutively with the cds charge. following a sentencing hearing at presentence investigation. that investigation is conducted at the option of appealed from the appellant law dissociative episodes "with skepticism." make certain she understood the plea bargain. she asserts that the plea is of assisting her attorney in her defense. dr. seiden viewed her claims of should reasonably doubt the defendant's capacity to understand the nature protection, however, does not require that every time a defendant feigns the decisions to deny the motion for a supplemental psi report and to not an illegal sentence may be corrected at any time by the court that agreement set forth in the record and involved a specific sentence or a the defendant's convictions and sentences are affirmed. sentenced within those bounds. therefore, under la. c. cr. p. art. fraud. she was sentenced to agreed-upon terms of 15 years at hard labor for agreement, she was allowed to plead guilty to one count of aggravated controlled dangerous substance (cds) by fraud. pursuant to a plea a defendant does not have an absolute right to the appointment of a aggravated arson, two counts of simple arson, and two counts of obtaining a 1 discussion cause hardship to her family. due to confusion, the hearing on the motion parish of ouachita, louisiana reasonable ground to doubt the defendant's mental capacity to proceed." within the delay allowed by art. 922, district attorney appellee capacity of a defendant is questioned. state ex rel. seals v. state, supra at to this court as to the admission of the certificates. competency. matter was remanded to the trial court for correction. we did not rule on the judgment rendered november 3, 2010. la. c. cr. p. art. 642 allows that the defendant's mental incapacity to last, if a defendant's mental incapacity has been properly raised, the madeleine slaughter-young was invalid because the trial judge failed to stay within the bounds of the that she committed the behavior." he also concluded that she was capable absent a clear abuse of discretion. state v. edwards, supra. 44,552 (la. app. 2d cir. 8/19/09), 17 so. 3d 1037. a reviewing court owes ordered; the trial court denied the motion. during the resentencing hearing, supervised probation for the cds charge. the plea bargain set a sentencing in her final assignment of error, the defendant contends that her plea la. c. cr. p. arts. 642, 643, and 647 provide guidance. state ex rel. seals v. introduced for mitigation purposes. the state immediately applied for writs issue of the admissibility of the certificates of progress. hard labor, with the first two years of the sentence to be served without gaskins, j. between the trial judge and the defendant at the time of her guilty plea, her order a mental examination of a defendant when there are reasonable plea established a sentencing cap of 15 years; also, it was agreed she would anatole j. plaisance co-counsel for by: andrew a. lemmon appellant 9 honorable h. stephens winters, judge sane enough to agree to the plea. on the other hand, the state maintains that 6 be suspended and the defendant was to be placed on five years of supervised coherent, rational and able to comprehend the proceedings against her. the state agreed to dismiss the other three charges and not file a habitual at her neighbors' home. she was also charged with two counts of obtaining that a sanity commission be formed to assess the defendant's capacity to appeal or review because it was imposed in conformity with a sentencing years at hard labor, with the first two years to be served without benefit of bargain set forth a sentence of five years at hard labor; this sentence was to 10/15/96), 680 so. 2d 1171; state v. foster, 42,212 (la. app. 2d cir. defendant less than two months before her guilty plea. finally, the colloquy imposed without benefits as opposed to two years of the sentence being * * * * * in july 2004, the defendant set two separate fires several days apart at the determination of sanity is a factual matter. state v. edwards, although a sanity commission was never appointed, the defendant incapacity the court must order a full-blown sanity commission. in state v. 7 sentence. the defendant entered into a plea agreement which included two held that the trial court is granted great discretion in determining if a medicaid fraud. the terms of her plea agreement provided for an agreed- to the court before sentencing, all show that the defendant was completely rehabilitation ; she asserts that the information was not "post-sentence" but1 words, there is no need for a sanity commission to be appointed each time second circuit cap of 15 years for the aggravated arson; she received a sentence of 14 she asked the court to reconsider the length of the 14 year sentence for aggravated arson charge was illegal because the entirety of the sentence was facts be sentenced pursuant to a presentence investigative (psi) report. the illegal sentence on the charge of aggravated arson as the entire sentence was that she complained of has now been corrected, the defendant does not have agreement, the arson sentences were imposed concurrently with each other rehabilitation efforts since her first sentencing. specifically, she claims that megan e. methany responses to questions, her statement to the victims, and her later statement mental deficiencies that precluded her from fully comprehending the plea more current mitigating evidence. additionally, she argues that the trial her own home. during the first fire at the defendant's house, the defendant, berry, 391 so. 2d 406, 411 (la. 1980), the louisiana supreme court firmly the other two crimes to which the defendant pled guilty. the defendant was patent. state v. williams, 2000-1725 (la. 11/28/01), 800 so. 2d 790; state evidence of rehabilitation lemmon law firm, l.l.c. co-counsel for indeed, where a trial judge finds enough evidence to doubt a defendant's discretion. 2 which the victims were allowed to address the court, the trial court * * * * * state of louisiana appellee a defendant cannot appeal or seek review of a sentence imposed in educational programs and the "locks of love" hair donation program. and decides the issue of the defendant's mental capacity to proceed. see la. record reflects that prior to resentencing, the trial court allowed the the home of neighbors in monroe; the house was a total loss. in the same 833. she entered and that the trial court should have held a sanity commission to defendant's mental incapacity to proceed is raised, there shall be no further the court. la. c. cr. p. art. 875 a(1). if a psi is conducted, and a report art. 643. it is well established that "reasonable grounds" exist when one insanity. while awaiting trial, her attorney apparently made oral motions court of appeal jerry l. jones counsel for offender bill against the defendant, who had a prior felony conviction for as a consequence of a plea bargain, a sentence imposed within the agreed for the appointment of a sanity commission. this court found that the defendant's sentence was not subject to to reconsider was not held until two years later in october 2009. before the benefit of parole, probation, or suspension of sentence, to run concurrent her ability to know the rightness or wrongness of her behavior at the time 882(a). further, the appellate court may notice sentencing errors as error * * * * * arson. additionally, they all agreed to the specific sentences imposed for the trial court's determinations as to the defendant's competency great our review of the record reveals no error in the trial court's denial of where a specific sentence or a sentencing cap has been agreed upon conformity with a plea agreement which was set forth in the record at the by the smoke and escaped injury. investigators discovered that the art. 894.1. la. c. cr. p. art. 881.2(a)(2). state v. young, 96-0195 (la. probation following her release from prison. as to the aggravated arson, the her husband and one of her sons were inside; no one was injured. during the defendant, victoria g. mickail, was charged with two counts of sentenced the defendant in compliance with the plea bargain. on the count agreed to a sentencing cap or ceiling of 15 years on the charge of aggravated time of the plea. la. c. cr. p. art. 881.2(a)(2). parole, probation or suspension of sentence. also pursuant to the plea trial court ruled on the specific issues raised in the motion to reconsider, it "the court shall order a mental examination of the defendant when it has lockwood, 439 so. 2d 394 (la. 1983). not constitutionally valid because nothing in the record indicates she was the court. this article additionally requires that when the question of the 8 competent to stand trial and able to fully assist her trial counsel. these assignments of error are meritless. assist in preparing his defense. to determine a defendant's capacity, the fires set at her own home and two counts of simple arson for the fires set record is replete with evidence establishing that she was competent to stand the defendant's convictions and sentences. discussion court committed manifest error in not admitting evidence of her 8/19/09), 17 so. 3d 491, writ denied, 2009-2057 (la. 4/5/10), 31 so. 3d grounds to doubt the defendant's mental capacity to proceed. la. c. cr. p. pharmacy where she worked as a pharmacist. the defendant's motion for the appointment of a sanity commission. the stand trial. in a minute entry dated october 20, 2004, the trial court denied the trial court erred in not ordering a supplemental psi report to consider written report to the court, the doctor concluded that the defendant was report, he suggested that she had a history of severe mood disorder, la. c. cr. p. "pre-sentence" to the resentencing. in opposition, the state contends that wrong at the time of the offenses. we note that dr. seiden interviewed the sanity commission sentencing cap. however, we found that the original sentence on the the motion. in a minute entry dated august 21, 2006, the trial court found application for rehearing may be filed in two other assignments of error, the defendant contends that she had indicated that it would allow post-sentencing certificates earned by the imposed the sentence or by an appellate court on review. la. c. cr. p. art. 881.2(a)(2), the defendant is precluded from appealing the sentence capacity, the court may order that the defendant be examined by a single admit the certificates rest within the trial court's broad sentencing imposed within the bounds of an agreed-upon plea bargain. no. 45,786-ka * * * * * before stewart, gaskins and peatross, jj. to correct that error. during the resentencing hearing, the trial court error. assistant district attorney in two assignments of error, the defendant contends that the trial c. cr. p. art. 643 by allowing her to be evaluated by dr. seiden. in his


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