State of Louisiana v. Albert Stevens, Jr.

CourtLouisiana Court of Appeal
DecidedJanuary 31, 2007
DocketKA-0006-0818
StatusUnknown

This text of State of Louisiana v. Albert Stevens, Jr. (State of Louisiana v. Albert Stevens, Jr.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Louisiana v. Albert Stevens, Jr., (La. Ct. App. 2007).

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

06-818

STATE OF LOUISIANA

VERSUS

ALBERT STEVENS, JR. ********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 10426-93 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

EN BANC

********** Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John D. Saunders, Oswald A. Decuir, Jimmie C. Peters, Marc T. Amy, Michael G. Sullivan, Glenn B. Gremillion, Elizabeth A. Pickett, Billy H. Ezell, J. David Painter, and James T. Genovese, Judges.

SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED; AND REMANDED WITH INSTRUCTIONS.

John F. DeRosier District Attorney, 14th Judicial District P. O. Box 3206 Lake Charles, LA 70602-3206 Counsel for Appellee: State of Louisiana

Edward K. Bauman Louisiana Appellate Project P. O. Box 1641 Lake Charles, LA 70602-1641 Counsel for Defendant-Appellant: Albert Stevens, Jr.

Albert Stevens, Jr. 1702 Harless Street Lake Charles, LA 70601 Pro Se Painter, Judge.

Defendant, Albert Stevens, Jr., appeals the sentence imposed in connection

with his conviction on three counts of simple robbery. Appellant’s counsel on appeal

has filed a motion to withdraw as counsel of record for Defendant pursuant to the

procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). For

the following reasons, we affirm Defendant’s sentence and grant the motion to

withdraw. However, we remand this matter to the trial court with instructions to

impose a payment plan for the fine, court costs, and restitution while Defendant is

present.

FACTS

Defendant was accused of having robbed the clerks at various convenience

stores in Calcasieu Parish on June 10, 28, and 29, 1993, while armed with weapons

including a knife, a pair of scissors, and a box cutter. In August 1993, he was

charged by bill of information with three counts of armed robbery pursuant to La.R.S.

14:64. He pled not guilty to those charges. Defendant failed to appear for trial on

June 26, 1995, and a bench warrant was issued. Defendant was apprehended in

Mississippi and sent back to face trial. The State, on June 21, 2005, amended the bill

of information to reflect three counts of simple robbery. Defendant pled guilty to all

counts. He was sentenced to six years hard labor on each count, with all the

sentences to run concurrently. Four years of each sentence was suspended, and the

trial court ordered Defendant to be placed on four years supervised probation upon

his release from prison. Defendant appeals.

1 DISCUSSION

Error Patent Review

After reviewing the record for errors patent pursuant to La.Code Crim.P. art.

920, we find two items involving special conditions of probation which this court has

previously deemed errors patent. However, upon reconsideration, we now find the

trial court’s handling of these matters to be correct.

Along with other conditions of probation, the trial court imposed the following

special conditions:

1) $125.00 restitution to Mr. Levine to be paid over the duration of the supervised probation.

2) A $1,000.00 fine and court costs on each count, to be paid over the period of probation on a schedule worked out by Probation and Parole and approved by the Court before implementation.

3) A $150.00 reimbursement to the Indigent Defender Board to be spread out over the 48 months of supervised probation.

This court has previously held that similar provisions as to payment are not

acceptable and that the trial court must announce the payment plan in ordering

payment over a term. See State v. Brack, 99-1103 (La.App. 3 Cir. 3/1/00), 758 So.2d

310; State v. Thomas, 05-1051 (La.App. 3 Cir. 3/1/06), 924 So. 2d 1146; State v.

Moore, 595 So.2d 334 (La.App. 3 Cir. 1992). According to the version of La.Code

Crim.P. art. 895.1(A) in effect in 1993 when the offenses were committed, the

restitution payment “shall be made, in the discretion of the court, either in a lump sum

or in monthly installments based on the earning capacity and assets of the defendant.”

(Emphasis added.) Further, because these conditions of probation are a part of

Defendant’s sentences, the payment plan must be imposed in Defendant’s presence.

La.Code Crim.P. art. 835.

2 Upon reconsideration, we find nothing in the statute which prohibits the trial

court from seeking assistance from outside sources, including Probation and Parole,

in formulating the appropriate payment plan. In fact, Probation and Parole may be

in a better position to formulate a workable payment schedule than is the trial court.

In taking advantage of this assistance, the trial court in no way cedes its responsibility

to impose the payment plan, and it only becomes effective upon approval of the trial

court. Therefore, we overrule this court’s previous decision in State v. Brack, 758

So.2d 310.

Therefore, we find no error in the trial court’s ruling as to the payment of fines

and court costs. However, the trial court ordered Defendant to pay the restitution

“over the duration of the supervised probation” and to reimburse the Indigent

Defender Board “over the 48 months of supervised probation.” These provisions are

inadequate in that they do not either provide the monthly payment schedule with

which the Defendant is to comply or provide for a payment plan to be formulated by

Probation and Parole and approved by the trial court. Accordingly, we remand the

case to the trial court with the instruction that the court impose a payment plan for

restitution and for payment of the Indigent Defender Board which comply with the

requirements of La.Code Crim.P. art. 895.1(A) and this opinion. We reiterate that

either or both of these plans may be determined by the trial court or formulated by

Probation and Parole and approved by the trial court.

Anders Review

Defendant’s counsel has filed a brief stating that he could find no error on

appeal that would support reversal of Defendant’s sentence. Consequently, counsel

seeks to withdraw.

3 Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967) and State

v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990), this court has reviewed the record

thoroughly, including pleadings, minute entries, the charging instrument, and the

transcripts. Defendant was properly charged in a bill of information, was present and

represented by counsel at all crucial stages of the proceedings, and entered a free and

voluntary guilty plea after being properly advised of his rights pursuant to Boykin v.

Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). Additionally, Defendant received

legal sentences. We find no issues which would support an assignment of error on

appeal. Therefore, Defendant’s appellate counsel’s motion to withdraw is granted.

Sentence

In his pro se assignment of error, Defendant contends that the trial court erred

in sentencing him to a term of imprisonment disproportionate to the crimes.

The record indicates that Defendant did not file a motion to reconsider sentence

as mandated by La.Code Crim.P. art. 881.1. “Under Article 881.1, a defendant must

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Boykin v. Alabama
395 U.S. 238 (Supreme Court, 1969)
State v. Benjamin
573 So. 2d 528 (Louisiana Court of Appeal, 1990)
State v. Cook
674 So. 2d 957 (Supreme Court of Louisiana, 1996)
State v. Humphrey
445 So. 2d 1155 (Supreme Court of Louisiana, 1984)
State v. Spencer
888 So. 2d 1128 (Louisiana Court of Appeal, 2004)
State v. Moore
595 So. 2d 334 (Louisiana Court of Appeal, 1992)
State v. Robinson
918 So. 2d 1151 (Louisiana Court of Appeal, 2005)
State v. Theriot
893 So. 2d 1016 (Louisiana Court of Appeal, 2005)
State v. Mims
619 So. 2d 1059 (Supreme Court of Louisiana, 1993)
State v. Brack
758 So. 2d 310 (Louisiana Court of Appeal, 2000)
State v. Thomas
924 So. 2d 1146 (Louisiana Court of Appeal, 2006)
State v. Lanclos
419 So. 2d 475 (Supreme Court of Louisiana, 1982)

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