
    STATE of Louisiana, Appellee, v. Delores OLIVER aka Delores Gibson, Appellant.
    No. 32,226-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 16, 1999.
    J. Wilson Rambo, Monroe, La. Appellate Project, Counsel for Appellant.
    Richard Ieyoub, Attorney General, Jerry Jones, District Attorney, Stephen Sylvester, Assistant District Attorney, Counsel for Appellee.
    Before NORRIS, C.J., and BROWN and GASKINS, JJ.
   LNORRIS, Chief Judge.

Delores Oliver (a/k/a Delores Gibson) was charged by bill of information with one count of purse snatching, La. R.S. 14:65.1. This offense carries a minimum sentence of two and a maximum of 20 years at hard labor. Oliver pled guilty as charged pursuant to an agreement, set forth on the record, that the State would not multiple-bill her and her sentence would not exceed 10 years at hard labor. After reviewing a presentence investigation report, the District Court sentenced her to eight years at hard labor. A timely motion for reconsideration was denied, and Oliver now appeals.

The factual basis of the plea was that Oliver entered a carport on South Third Street, accosted a 79-year-old lady who was getting into her car, prevented her from shutting the car door, threatened to shoot her, and forcefully took her purse, which contained about $1,000 in cash. A witness identified Oliver as the assailant. When arrested, Oliver admitted the crime, saying she did it because she needed crack cocaine.

The law prohibits “appeal or * * * review of a sentence imposed in conformity with a plea agreement which was set forth in- the record at the time of the plea.” La.C.Cr.P. art. 881.2 A(2). This provision applies equally to specific sentences and to sentence caps. State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171. Because Oliver’s sentence conforms to the cap in the plea agreement set forth on the record, we find nothing to review. State v. Jonas, 29,750 (La.App. 2 Cir. 8/20/97), 698 So.2d 744. Moreover, at the Boykin hearing, Oliver was advised that she would be waiving her right to appeal; she replied that she understood.

Oliver also contends that art. 881.2 A(2) is unconstitutional both on its face and as applied to her. In support, she cites only the dissent in State v. Rice, 26,478 (La.App. 2 Cir. 12/7/94), 648 So.2d 426, unit denied 95-0431 (La.6/16/95), 655 So.2d 340. However, Rice does not hold that art. 881.2 A(2) is unconstitutional; | j>,only the dissent so suggests. The theory that a sentence is reviewable if imposed pursuant to a plea-bargained cap was based on State v. Smack, 425 So.2d 737 (La.1983). The Supreme Court explicitly rejected this theory in State v. Young, supra, as a result of the 1992 enactment of art. 881.2. The court noted no constitutional infirmity with the article, and the instant showing is insufficient to persuade us to note any.

We have reviewed the entire record and find nothing we consider to be error patent. La.C.Cr.P. art. 920(2). The conviction and sentence are therefore affirmed.

AFFIRMED.

BROWN, J., concurs with written reasons.

11 BROWN, J.,

concurring.

After review, I would affirm the conviction and sentence. The maximum penalty would clearly have been justified for this defendant.

The 79-year-old victim was preparing to get into her car when defendant approached and blocked the door. Defendant told Ms. Walker, “don’t make me shoot you” and, after a brief struggle, took the elderly victim’s purse and fled the scene. Ms. Walker’s purse contained $1,000 in cash. Defendant committed the crime to buy crack cocaine. Defendant is a third felony offender with prior convictions for theft, simple burglary of an inhabited dwelling and conspiracy to distribute cocaine. Defendant received a substantial benefit from her plea bargain. Defendant could have been charged with first degree robbery and as a habitual offender. Her sentence is neither grossly out of proportion to the seriousness of the offense nor does it shock the sense of justice.

Louisiana’s constitution, as interpreted by the supreme court, grants a criminal defendant the right to have his sentence reviewed for excessiveness. See State v. Sepulvado, 367 So.2d 762 (La.1979), which states that although a sentence is within the statutory range, it may still violate a defendant’s right to be free from excessive punishment and is therefore subject to appellate review. By reason of the constitutional prohibition against cruel, excessive, or unusual punishment, the sentencing judge does not possess unbridled discretion to impose a penalty regardless of mitigating facts. Appellate review protects against an abuse of discretion. There is no legal or logical difference between a statutory range and an agreed to range. In both, the actual sentence is undetermined and left to the discretion of the court. By taking away the right to appeal as excessive a sentence that is derived from a sentencing range, La.C.Cr.P. art. 881.2(A)(2) grants the sentencing judge unbridled discretion and supplants the mandate of Article I, Section 20 of the Louisiana Constitution. Further, public order is best ^served by reviewing the sentence now rather than later and avoids the frivolous consequences of State v. Rice, supra.  