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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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
file a motion to reconsider the sentence setting forth the specific ground upon which
the motion is based in order to raise an excessive sentence claim on appeal. State v.
Mims, 619 So.2d 1059 (La.1993).” State v. Theriot, 04-897, p. 8 (La.App. 3 Cir.
2/9/05), 893 So.2d 1016, 1021. Because Defendant failed to file the required motion,
this court will conduct a bare excessive sentence review.
In State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996), the supreme court held that when a defendant claims a sentence is excessive “[t]he only relevant question on review . . . [is] ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ State v. Humphrey, 445 So.2d 1155, 1165 (La.1984).”
State v. Robinson, 05-633, p. 8 (La.App. 3 Cir. 12/30/05), 918 So.2d 1151, 1156.
4 Defendant pled guilty to three counts of simple robbery. “Whoever commits
the crime of simple robbery shall be fined not more than three thousand dollars,
imprisoned with or without hard labor for not more than seven years, or both.”
La.R.S. 14:65. Defendant was sentenced to serve six years at hard labor on each
count with all sentences to run concurrently. However, the trial court suspended four
years of each sentence and ordered that Defendant be placed on four years of
supervised probation upon being released from prison.
Defendant asserts that he committed the offenses at issue because he was
addicted to drugs. Additionally, he explains that during the ten years he was “absent
from authorities,” he married, had children, maintained gainful employment, and led
a crime free life. Defendant argues that incarceration is inappropriate and
disproportionate considering his life changing circumstances.
The offenses to which Defendant pled guilty inadequately describe the entire
course of his conduct. Because he used weapons during each of the three offenses,
under the armed robbery statute, he could have been given a sentence ranging from
ten to ninety-nine years for each offense.
In State v. Lanclos, 419 So.2d 475, 478 (La.1982), the supreme court stated
that:
[W]here the offense to which the defendant has pled guilty inadequately describes his conduct, we find no abuse of the trial court’s great discretion in imposing the maximum sentence possible for the crime to which the guilty plea is entered. This is particularly true where a significant reduction in potential exposure to imprisonment has been obtained through plea bargaining, and the offense involves violence to the victim.
Additionally, Defendant’s sentences were ordered to run concurrently to each
other even though the offenses occurred on different days and involved different
5 victims. The sentences could have been ordered to be served consecutively to each
other, which would have exposed Defendant to possible imprisonment for over
twenty-one years. The sentences were also ordered to run concurrently with a
sentence imposed for an additional count of simple robbery in another docket number.
Considered in this light, Defendant benefitted greatly by the amendment of the bill
of information and the fact that his sentences were ordered to run concurrently. See
State v. Spencer, 04-857 (La.App. 3 Cir. 12/8/04), 888 So.2d 1128.
Given the nature of the underlying convictions, there is no indication that the
sentences imposed are a purposeless imposition of pain and suffering or that they are
grossly disproportionate to the crimes committed. Therefore, we find no error in the
sentences imposed.
CONCLUSION
Defendant’s sentences are affirmed. Counsel’s motion to withdraw is granted.
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
complies with the requirements of La.Code Crim.P. art. 895.1(A) and this opinion.
We reiterate that the plan may either be determined by the trial court or be
formulated by Probation and Parole and approved by the trial court.
SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED; AND REMANDED WITH INSTRUCTIONS.
6 06-818
COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA Appellee
ALBERT STEVENS, JR. Defendant-Appellant
On Appeal from the Fourteenth Judicial District Court Parish of Calcasieu, Honorable G. Michael Canaday, Judge.
ORDER
After consideration of Defense counsel’s request to withdraw as counsel and
the appeal presently pending in the above-captioned matter,
IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is
granted.
THUS DONE AND SIGNED this _____ day of January, 2007.
_______________________________ Judge Ulysses Gene Thibodeaux
_______________________________ Judge Sylvia R. Cooks
_______________________________ Judge John D. Saunders
_______________________________ Judge Oswald A. Decuir
_______________________________ Judge Jimmie C. Peters
7 _______________________________ Judge Marc T. Amy
_______________________________ Judge Michael G. Sullivan
_______________________________ Judge Glenn B. Gremillion
_________________________________ Judge Elizabeth A. Pickett
_______________________________ Judge Billy H. Ezell
_________________________________ Judge J. David Painter
_______________________________ Judge James T. Genovese