State Of Louisiana v. Dynetta Hadrick Woods

• Court: Louisiana Court of Appeal
• Decided: June 4, 2021
• Docket: 2019KA1141
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2019 KA 1141

VERSUS Avf I

DYNETTA HADRICK WOODS

Judgment Rendered: JUN 0 4 2021

On Appeal from the 19th Judicial District Court Parish of East Baton Rouge, State of Louisiana No. 02- 12- 0330

The Honorable Bruce Bennett, Judge Presiding

Jeff Landry Attorneys for the State of Louisiana Louisiana Attorney General Tasha K. Stockwell

Assistant Attorney General Baton Rouge, Louisiana

A. Gregory Rome Attorneys for Defendant -Appellant, Baton Rouge, Louisiana Dynetta Hadrick Woods and

La' Deisha Woods Port Allen, Louisiana

BEFORE: THERIOT, WOLFE, AND RESTER, JJ. WOLFE, I

The defendant, Dynetta Hadrick Woods, was charged by grand jury indictment

with one count of conspiracy to commit forgery ( count I), a violation of La. R. S.

14: 26 & 14: 72; and nineteen counts of forgery ( counts II —XX), violations of La.

R.S. 14: 72. 1 Following a jury trial, she was found guilty as charged on all counts. On

count I, she was sentenced to five years at hard labor and fined $2500. On counts II —

XX, she was sentenced on each count, to five years at hard labor and fined $ 2500,

with the sentences to run concurrently with each other, but consecutively to count I.

All sentences were suspended and she was placed on supervised probation for five

years subject to payment of $54, 729. 72 restitution. Following a hearing, the court

found the defendant to be indigent.2 Thereafter, following another hearing, the court

modified the restitution obligation by ordering the defendant to pay $ 10, 000 restitution

for the expenses of prosecution by the Attorney General' s Office' and zero restitution

to the Louisiana Department of Health and Hospitals ( DHH). The State moved for

reconsideration of sentence, but the motion was denied. The defendant now appeals

challenging the sufficiency ofthe evidence, claiming the trial court failed to review the

record before denying post -trial motions and imposing sentence, and challenging the

record as incomplete for review. The State appeals challenging the modification of

restitution. See La. Code Crim. P. art. 881. 2( B)( 2). For the following reasons, we

Dwaine Joseph Woods, Sr., and Millennium L.L.C. were charged by the same indictment with the same offenses and an additional count of theft ( value over $ 500). Dwaine Woods and

Millennium separately appealed from their convictions. See State v. Woods, 2019- 1142 ( La. App. 1st Cir. _/_/_ ), _ So. 3d , and State v. Millennium Health Care Services, LLC, d/ b/ a Millennium PCA Services, 2019- 1143 ( La. App. 1st Cir. _/ /, So. 3d

2 On August 3, 2017, the defendant filed a combined motion to terminate restitution and to be declared indigent. Judge White denied the motion on August 24, 2017. Thereafter, at a December 12, 2018 status hearing, defense counsel argued indigency can be raised at any stage and a formal motion was not needed. Judge Bennett agreed, and defense counsel made an oral motion for the defendant to be found indigent. Subsequently, the trial court declared it was limiting the December 12, 2018 hearing " to the issues of indigency for both defendants [ Dynetta and Dwaine]."

3 See La. Code Crim. P. art. 887( A) ("[ a] defendant who is convicted of an offense ... shall

be liable for all costs of the prosecution").

PA affirm the convictions, affirm the sentences in part, and vacate the modification of

restitution.

FACTS

In 2004, Dwaine Joseph Woods, Sr., founded Millennium Health Care

Services ( Millennium), which did business as Millennium PCA ( personal care

assistance) Services, LLC. He listed himself as the president of Millennium, and the

defendant, his wife, as the secretary of the company. Millennium provided personal

care services, with the majority of its business involving services billed to Medicaid.

Between 2006 and 2010, Millennium billed Medicaid approximately $ 7, 000, 000.

Terry Cooper, an R.N. for DHH since 1984, testified during the trial. In 2006,

she was the R.N. manager over nursing homes and immediate care facilities for the

developmentally disabled, as well as home and community based services. She

indicated that in 2005, the legislature transferred licensing authority for home and

community based programs to DHH, which already controlled Medicaid enrollment.

She testified that in November of 2006, DHH promulgated a rule requiring direct

service workers to be trained in cardiopulmonary resuscitation ( CPR) and basic first

aid within forty- five days of hire. Cooper said that in 2012, the requirement was

removed from DHH regulations. According to Cooper, it would be fraud to give DHH

a fake CPR card as proof of training.

Pamela Moseley, who worked in program integrity/Medicaid fraud and health

standards prior to her retirement from DHH in 2011, also testified at the trial. She

acknowledged that in 2006, direct service workers were required to have CPR training.

DHH would check for compliance with the CPR training requirement by examining

the personnel files of direct service workers to see if they contained an original or a

photocopy of a CPR card.

Melissa Landrum Rohner testified at trial. In August of 2009, she had planned

to work for Extended Family, a personal care assistance program operated by Stacy

t Baptiste. However, Baptiste "[ pled] out for Medicaid fraud" and shut down the

business. Baptiste referred Rohner to the defendant and Dwaine Woods. Thereafter,

Rohner was hired as a regional director for Millennium. Some of the former clients of

Extended Family transferred to Millennium.

Rohner identified a copy ofa CPR First Aid card with her name on it. According

to Rohner, Dwaine Woods gave her the original CPR First Aid card. The card

indicated Rohner received CPR First Aid training on October 13, 2009. Rohner

testified she did not receive CPR First Aid training on October 13, 2009. Rohner told

Dwaine Woods that she " did not take this class" when he handed her the card. He told

her " the card was for [her]."

Dwaine Woods also gave Rohner CPR First Aid cards for other employees of

Millennium and instructed her to make copies of the cards, distribute the originals to

the employees, and file the copies in their files. Due to her familiarity with another

employee' s time sheets, Rohner was also aware of at least one other CPR First Aid

card that was issued to an employee who had not received training. Because of her

past experience at Extended Family, Rohner was concerned about getting " wrapped

up" in any dishonest activity. When she noticed " things that started to not make sense"

in regard to billing, she emailed Dwaine Woods, specifically advising him that " things

were getting billed for hours that people were not working." Rohner emailed rather

than telephoned because Dwaine Woods and the defendant were on a cruise, and

Rohner did not think she would be able to contact him by telephone.

According to Rohner, during the last week of November 2009, Dwaine Woods

called her. Rohner told Dwaine Woods " what [was] going on." Based on the tone of

Dwaine Woods' voice and the way he responded to her, Rohner realized he " had

something to do with [ the irregularities]." Approximately one hour later, another

employee of Millennium seized Rohner' s computer and removed it from her office.

Rohner gathered her belongings and left Millennium.

11 Rohner subsequently notified the Medicaid fraud department at DHH, the

company that billed for Medicaid, and Louis Hicks with the American Red Cross, that

there were a " multitude" of American Red Cross CPR First Aid cards that had been

given out to employees even though they had not attended the CPR First Aid classes.

Rohner admitted she was arrested on January 10, 2010, and convicted on July 8, 2010,

for possession of crystal methamphetamine.

Jamaal Ellis Fletcher testified at trial. He was the defendant' s cousin and had

been knowing her just about all [ his] life." Additionally, the defendant' s brother,

Regis Hadrick, was Fletcher' s business partner, former roommate, and one of his best

friends. Fletcher also knew Dwaine Woods. Prior to trial, Fletcher pled guilty to

conspiracy to commit forgery. According to Fletcher, he conspired with Millennium,

the defendant, and Dwaine Woods to create false CPR cards.

Fletcher indicated that between August of 2009 and December of 2009,

Millennium was a personal care service, and " around that time," he was certified by

the Red Cross as a CPR/ First Aid instructor. Fletcher had previously been paid for

teaching Red Cross training classes that he had not actually taught.

Fletcher was unaware of the exact date, but in approximately October of 2009,

he was contacted by the defendant. She told him she needed some cards " done" and

needed them done fast." The defendant told Fletcher she would fax the names to him,

and he subsequently received a fax from Millennium with a list of the names for the

CPR cards. The defendant made no inquiry about Fletcher' s availability to teach the

CPR class. Fletcher stated, " I know [ the Red Cross] wanted the class to be taught. I

chose not to teach it." Fletcher did not agree, however, that the defendant wanted the

class to be taught. He indicated, while the defendant did not specifically instruct him

to " forge CPR cards and provide them to Millennium[,]" that is what was " perfectly

understood[.]" Fletcher testified he " might have asked for the names," but he did not

know who worked at Millennium and would not have known which names to put on

5 the CPR cards unless they were provided to him. Fletcher wrote up the CPR cards and submitted them to the Red Cross.

In December of 2009, Louis Hicks of the Red Cross called Fletcher. Fletcher

could not remember the exact phrasing but testified that Hicks either told Fletcher that

the cards " weren' t right," or that Fletcher did not teach the class and someone had

called in on it." Fletcher called the defendant and told her about the call, stating that

the Red Cross] caught up with it" or "[ the Red Cross] caught us." Less than ten

minutes later, Dwaine Woods called Fletcher. Fletcher testified, "[ Dwaine Woods]

wanted to know what was going on and I let him know." Dwaine Woods told Fletcher,

don' t worry about [ it]. He was going to handle it." Dwaine Woods also told Fletcher

to tell Hicks that Fletcher had in fact taught the class.

Thereafter, Fletcher went to the Red Cross and talked to Hicks. In accordance

with Dwaine Woods' instructions, Fletcher lied to Hicks and told him that he taught

the class referenced in the CPR cards. Hicks started talking about the Attorney

General, and Fletcher wondered, " What am I in to." He told Hicks, " I don' t know

what [the defendants] got me into."

At trial, Fletcher identified his signature on Red Cross CPR cards indicating he

had trained Yvette Ferguson, Jeana Cooper, and Falin Carter in CPR on either October

13, 2009 or October 14, 2009. Fletcher acknowledged that he did not provide the

training. Additionally, he identified an August 15, 2009 check for $300 made out to

him and signed by the defendant for CPR/ First Aid. He also identified a November 5,

2009 check for $ 1, 125 made out to him from Millennium and signed by the defendant

for First Aid/ CPR. Fletcher indicated the checks were payment for the October 13,

2009 and October 14, 2009 classes that he did not teach. Fletcher indicated he was

paid $ 25 per person upon delivery of the fake CPR cards.

Randy Henagan, a criminal investigator with the Louisiana Department of

Justice, Attorney General' s Office, Medicaid Fraud Control Unit, testified at trial. He

no reviewed Fletcher' s AT& T phone records for the period between August of 2009 and

September of 2010. In both August and September of 2009, Fletcher' s telephone was

used to call Millennium three times. In October of 2009, Fletcher' s telephone was

used to call Millennium one time. No calls were made from Fletcher' s telephone to

Millennium in November and December of 2009.

Fletcher' s telephone was used to call the defendant' s cellphone one time in

August of 2009. No additional calls were made from Fletcher' s telephone to the

defendant' s cellphone in September and October of 2009. Fletcher' s telephone was

used to call the defendant' s cellphone three times in November of 2009 and twelve

times in December of 2009. Henagan did not know what Fletcher talked about in the

telephone calls.

Dwaine Woods testified at trial. He was aware that in 2006 and 2009, CPR

training was a mandatory requirement for direct service workers who came into contact

with a consumer. He claimed, every quarter, the training coordinator at each of

Millennium' s locations would direct the staff of each office to audit the charts to

determine if there were any employees that needed CPR renewals or initial

certification. According to Dwaine Woods, if any employees needed CPR training,

the staff would generate a list of names and the training coordinator would schedule a

class. Thereafter, an instructor would come, provide the training for the employees,

and they would " get certified."

Nicole Skidmore was the training coordinator for the Baton Rouge and Denham

Springs offices.' In mid-September 2009, Skidmore was out ofthe office on sick leave.

Dwaine Woods said that he instructed Yolanda Grisby, the director of the Baton Rouge

and Denham Springs offices, and Rohner to "[ ensure] that all of the trainings were

completed."

4 Millennium also had an office in Lafayette.

7 According to Dwaine Woods, he first learned of a problem with the CPR cards

on November 20, 2009, when Skidmore informed him that she had been contacted by

an employee who questioned why her card had not been signed by the instructor.

Dwaine Woods claimed Rohner was present, and he asked her if she had allowed the

employee to take the class online. Dwaine Woods said, at the time, he had been

meeting with Rohner to give her a verbal warning concerning her drug use. He said

he told her he would rather get her some help than fire her. Dwaine Woods claimed

he was preparing to go out of town for a week, so he told Skidmore and Rohner he

would " see what was going on with the CPR cards" when he returned.

Dwaine Woods claimed Rohner left him voicemails while he was on his trip,

and when he called back, she " had left the office." He denied talking to Rohner after

his trip. In a letter to Congressman Charlie Melancon, Dwaine Woods claimed Rohner

quit on November 24, 2009, " after several discussions concerning her performance and

possible drug use." In the letter, Dwaine Woods also claimed the allegations against

him were " based on information from a disgruntled employee who has since been

arrested on drug charges."

Dwaine Woods stated when he returned from his trip, he tried to talk to Louis

Hicks with the American Red Cross, but he was unavailable. Woods did, however,

contact Hicks the next day and, pursuant to his instructions, gave him a letter describing

what had happened. Dwaine Woods claimed " we" paid Fletcher because we thought

he had taught the class. Dwaine Woods denied participating or conspiring with

Fletcher to forge CPR cards. Dwaine Woods denied that the defendant ever told him

that the CPR cards were " fraudulently done" by Fletcher. Dwaine Woods also denied

that the defendant ever asked him to tell Fletcher to tell Hicks that Fletcher had " done

the training." When asked if he and the defendant had discussed the fake CPR cards

issued by Fletcher, Dwaine Woods answered, " It was my company, something was

going on, that' s my wife, we talked."

8 Dwaine Woods claimed Hicks told him that the cards were invalid and that he

needed to retrieve them. Dwaine Woods claimed he retrieved the cards, returned them

to Hicks, scheduled another class for the employees and " made sure that everyone was

there." Dwaine Woods claimed his investigation of the incident revealed that of the

19 employees with invalid CPR cards, approximately 13 of them did not need CPR

cards. Dwaine Woods claimed 11 of the employees already had CPR cards, and

several employees " didn' t even work with our company anymore," and thus, "[ did not

need] to have the certification." He denied telling Fletcher to lie to Hicks that Fletcher

had performed the CPR training.

Dwaine Woods identified State Exhibit # 23 as a list of the Millennium

employees that were scheduled for First Aid CPR training on December 18, 2009

because Fletcher did not teach them on October 13 and 14, 2009. Woods gave the list

to the American Red Cross. He agreed the names matched the initials in counts II -XX

of the indictment.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number 1, the defendant argues the State used

incomplete AT& T records to connect [the defendant] to the crime." Additionally, the

defendant argues Jamaal Fletcher " directly and unequivocally declared that [ the

defendant] did not ask him to forge CPR cards and decided to forge the cards because

he was asked to get the cards fast." The defendant claims "[ i] t is absurd to accept that

Millennium would hire and pay Fletcher full price for a service, with no intention to

receive that service. It is especially ridiculous given the fact that this act would not

produce benefit for [the defendant] or the company."

A conviction based on insufficient evidence cannot stand as it violates Due

Process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review

for the sufficiency of the evidence to uphold a conviction is whether, viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

9 have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 ( 1979). See also

La. Code Crim. P. art. 821( B); State v. Ordodi, 2006- 0207 ( La. 11/ 29/ 06), 946 So.2d

6541 660. The Jackson standard of review, incorporated in Article 821, is an objective

standard for testing the overall evidence, both direct and circumstantial, for reasonable

doubt. State v. Eason, 2019- 0614 ( La. App. 1st Cir. 12/ 27/ 19), 293 So. 3d 61, 69.

When a conviction is based on both direct and circumstantial evidence, the

reviewing court must resolve any conflict in the direct evidence by viewing that

evidence in the light most favorable to the prosecution. When analyzing circumstantial

evidence, La. R.S. 15: 438 provides that, in order to convict, the fact finder must be

satisfied that the overall evidence excludes every reasonable hypothesis of innocence.

The facts then established by the direct evidence and inferred from the circumstances

established by that evidence must be sufficient for a rational trier of fact to conclude

beyond a reasonable doubt that the defendant was guilty of every essential element of

the crime. Eason, 293 So.3d at 69- 70.

All persons concerned in the commission of a crime, whether present or absent,

and whether they directly commit the act constituting the offense, aid and abet in its

commission, or directly or indirectly counsel or procure another to commit the crime,

are principals. La. R.S. 14: 24. However, the defendant' s mere presence at the scene

is not enough to " concern" him in the crime. Only those persons who knowingly

participate in the planning or execution of a crime may be said to be " concerned" in its

commission, thus making them liable as principals. A principal may be connected only

to those crimes for which he has the requisite mental state. State v. Neal, 2000- 0674

La. 6/ 29/ 01), 796 So.2d 649, 659, cert. denied, 535 U.S. 940, 122 S. Ct. 1323, 152

L.Ed.2d 231 ( 2002). However, "[ i] t is sufficient encouragement that the accomplice

is standing by at the scene of the crime ready to give some aid if needed, although in

such a case it is necessary that the principal actually be aware of the accomplice' s

10 intention." State v. Anderson, 97- 1301 ( La. 2/ 6/ 98), 707 So.2d 1223, 1225 ( per

curiam) ( ting 2 W. LaFave, A. Scott, Substantive Criminal Law, § 6. 7, p. 138 ( West u

1996)); State v. Clay, 2011- 1974 ( La. App. 1st Cir. 5/ 3/ 12), 2012 WL 1564626, * 21

writ denied, 2013- 0287 ( La. 6/ 14/ 13), 118 So. 3d 1084.

An individual is a criminal conspirator if he makes an agreement with one or

more persons for the specific purpose of committing any crime and at least one of the

parties does an act in furtherance of the object of the agreement. La. R.S. 14: 26( A).

The elements of conspiracy may be proven by direct or circumstantial evidence. State

v. Belino, 96- 0789 ( La. App. 1st Cir. 12/ 20/ 96), 686 So.2d 101, 104, writ denied, 98-

2992 ( La. 6/ 25/ 99), 745 So.2d 625.

It is unlawful to forge, with intent to defraud, any signature to, or any part of,

any writing purporting to have legal efficacy. La. R.S. 14: 72(A). Issuing, transferring,

or possessing with intent to defraud, a forged writing, known by the offender to be a

forged writing, shall also constitute a violation of La. R.S. 14: 72. La. R.S. 14: 72( B).

Knowledge, like intent, must often be inferred from the totality of the

circumstances of the transaction where it is an element of the crime charged. The test

of knowledge is not a subjective test, but rather a completely objective test, i.e. the

offender is taken to know that which any reasonable person so situated would have

known. An intent to defraud is also an essential element ofthe offense of forgery. The

criminal intent required for forgery is the intent to defraud any person, and it suffices

if the forged instrument has prejudiced or might prejudice the rights of another. An

intent to profit by the act is not a necessary element of the case. Moreover, specific

intent is a state of mind and need not be proved as a fact but may be inferred from the

circumstances and transactions of the case. Specific intent is that state of mind which

exists when the circumstances indicate that the offender actively desired the prescribed

criminal consequences to follow his act or failure to act. La. R.S. 14: 10( 1). Such state

of mind can be formed in an instant. The existence of specific intent is an ultimate

11 legal conclusion to be resolved by the trier of fact. State v. Dufrene, 2017- 1496 ( La.

App. 1st Cir. 6/ 4/ 18), 251 So.3d 1114, 1119, writ granted in part on other grounds and

remanded, 2018- 1174 ( La. 5/ 28/ 19), 273 So. 3d 301 ( per curiam).

Herein, any rational trier offact viewing the evidence in the light most favorable

to the State could find that the evidence proved beyond a reasonable doubt, and to the

exclusion of every reasonable hypothesis of innocence, all of the elements of

conspiracy to commit forgery and the defendant' s identity as the perpetrator of those

offenses. The verdict returned in this matter on count I indicates the jury accepted the

testimony of Fletcher and the other State witnesses that the defendant and Fletcher

agreed to forge nineteen American Red Cross CPR cards. Although the State presented

testimony from Henagan that calls were made from Fletcher' s telephone to the

defendant' s cellphone in August, November, and December of 2009, the State' s

principal witness against the defendant was not Henagan, but rather, Fletcher. Further,

the verdicts returned in this matter on counts II - XX indicate the jury accepted the

testimony of Fletcher and the other State witnesses that the defendant was involved in

the commission ofthe forgery ofthe nineteen CPR cards by procuring Fletcher to forge

the CPR cards and by aiding and abetting in the commission of those offenses by

directly or indirectly providing Fletcher with the names for the cards. Defrauding

DHE was reasonably certain to result from the creation of the forged CPR cards. The

defendant injured or prejudiced the rights of patients to be treated by direct service

workers trained in CPR and injured or prejudiced the right of DHH to have direct

service workers trained in CPR treating patients. The trier of fact is free to accept or

reject, in whole or in part, the testimony of any witness. Moreover, when there is

conflicting testimony about factual matters, the resolution of which depends upon a

determination of the credibility of the witnesses, the matter is one of the weight of the

evidence, not its sufficiency. The trier of fact' s determination ofthe weight to be given

evidence is not subject to appellate review. An appellate court will not reweigh the

12 evidence to overturn a fact finder' s determination of guilt. We are constitutionally

precluded from acting as a " thirteenth juror" in assessing what weight to give evidence in criminal cases. Eason, 293 So. 3d at 70- 71.

When a case involves circumstantial evidence and the jury reasonably rejects

the hypothesis of innocence presented by the defense, that hypothesis falls, and the

defendant is guilty unless there is another hypothesis that raises a reasonable doubt.

State v. Marston, 2000- 0589 (La. 3/ 16/ 01), 780 So. 2d 1058, 1062 (per curiam); State

v. Winfrey, 2012-0940 ( La. App. 1st Cir. 2/ 15/ 13), 2013 WL 595671, * 4, writ denied,

2013- 0585 ( La. 10/ 4/ 13), 122 So.3d 1014. No such hypothesis exists in the instant

case. The verdicts returned in this matter reflect the reasonable rejection of the

defendant' s theory that Fletcher forged the CPR cards without the defendant' s

knowledge. An appellate court errs by substituting its appreciation ofthe evidence and

credibility of witnesses for that of the fact finder and thereby overturning a verdict on

the basis of an exculpatory hypothesis of innocence presented to, and rationally

rejected by, the jury. See State v. Calloway, 2007-2306 ( La. 1/ 21/ 09), 1 So. 3d 417,

418 (per curiam); Winfrey, 2013 WL 595671 at * 4. Further, in accepting a hypothesis

of innocence that was not unreasonably rejected by the fact finder, a court of appeal

impinges on a fact finder' s discretion beyond the extent necessary to guarantee the

fundamental protection of due process of law. See State v. Mire, 2014- 2295 ( La.

1/ 27/ 16), 269 So. 3d 698, 703 ( per curiam). We cannot say that the jury' s

determination was irrational under the facts and circumstances presented to it. See

Ordodi, 946 So.2d at 662.

This assignment of error is without merit.

FAILURE TO REVIEW THE RECORD

13 In assignment of error number 2, 5 the defendant argues the trial court failed to

review the record before denying post -trial motions and imposing sentence.

Contrary to the claims of the defendant, the sentencing transcript reflects that

Judge Bennett' made numerous references to the record prior to denying post -trial

motions and imposing sentence. Judge Bennett stated "[ ayter a review of the

pleadings, it appears that a new trial was, in fact, requested and denied by the court, on or about I think March 8, 2016." ( Emphasis added.) Thereafter, Judge Bennett

addressed Judge White' s July 5, 2016 request for briefing, noting " It' s my

understanding from reviewing the record she asked [ the State and the defense] to

brief how long you could get an extension of time to apply for writs." ( Emphasis

added.) Additionally, in questioning the computation of restitution owed by Dwaine

Woods, Judge Bennett specifically noted, " the record indicates ..." ( Emphasis

added.)

INCOMPLETE RECORD

In assignment of error number 3,' citing State v. Landry, 97- 0499 ( La.

6/ 29/ 99), 751 So.2d 214, 215, the defendant argues her convictions and sentences

must be reversed because the record fails to contain transcripts of "key hearings"

5 The defendant lists this assignment of error as assignment of error number 3, but argues the issue presented therein as her second assignment of error.

6 Judge Trudy White presided over the defendant' s jury trial, but the Louisiana Supreme Court appointed Judge Bruce Bennett to sit pro tempore over Judge White' s division from November 14, 2016 to February 12, 2017. The defendant was sentenced during this period. Following the conclusion of Judge Bennett' s appointment, Judge White resumed her seat. Additionally, on September 14, 2018, the Louisiana Supreme Court appointed Judge Bennett ad hoc to complete " unfinished business" relative to the trial proceedings in this matter.

7 The defendant lists this assignment of error as assignment of error number 2, but argues the issue presented therein as her third assignment of error.

8 The defendant incorrectly references her convictions and sentences as " Mr. Woods' s conviction and sentence."

14 concerning a motion in limine filed in regard to Rohner' s testimony and the motion for new trial.

Landry involved review of a conviction for first-degree murder resulting in the

death penalty. Landry, 751 So.2d at 214. On appeal, the Louisiana Supreme Court

noted loud construction noise had hindered recordation of the trial proceedings. Id.

Additionally, the court inferred that the court reporter had experienced problems with

the audio recording equipment which caused skips in the recordation of the trial

proceedings. Id. The court found these problems deprived the defendant of his

constitutionally guaranteed right of appeal and judicial review. See La. Const. art. I,

19 ( right to judicial review); see also La. Code Crim. P. art. 843 ( duty of court

stenographer to record all of the proceedings); Id. at 215. Accordingly, the court

reversed the conviction and sentence and remanded for a new trial. Landry, 751 So.2d

at 216.

Thereafter, in State v. Campbell, 2006- 0286 (La. 5/ 21/ 08), 983 So. 2d 810, 872-

73, cert. denied, 555 U.S. 1040, 129 S. Ct. 607, 172 L.Ed.2d 471 ( 2008), the Louisiana

Supreme Court expounded on its holding in Landry, to -wit:

In Landry, this Court reversed a conviction and death sentence because the appellate record was so deficient that the Court could not properly review the case for error. Even though this Court has found reversible error when material portions of the trial record were unavailable or incomplete, a " slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal" does not require reversal of a conviction. An incomplete record may be adequate for appellate review. A defendant will not be entitled to relief on the basis of an incomplete record absent a showing that he was prejudiced by the missing portions ofthe record. ( Citations omitted).

In the instant case, the minutes reflect that during trial on January 10, 2015, the

State filed a motion in limine in reference to Rohner' s testimony.' Defense counsel

urged the court to deny the motion, but the court granted the motion. The defense

This court ordered supplementation of the record with the transcript of voir dire, the transcript of opening statements, and the minutes of trial date January 10, 2015.

15 objected to the ruling of the court. The motion indicates the State was seeking to

prevent leading questions or cross- examination of Rohner concerning " the removal of her] minor children, domestic abuse issues with her husband ..., family court and

confidential juvenile matters involving her children, a personal relationship with

another man not her husband, and/ or any other type of alleged criminal activity against

Rohner] for which she was neither arrested nor convicted, including but not

necessarily limited to a suspected arson fire in Lafayette Parish, Louisiana[.]"

The record further indicates Rohner was fully examined concerning the

defense' s theory that her allegations against the defendant and Dwaine Woods resulted

from Rohner' s alleged drug problem and her being disciplined for that drug problem,

rather than from any actual criminal activity by the defendants. The defendant fails to

show how the granting of the motion in limine prejudiced her or how she is prejudiced

by the absence of a transcript concerning the motion. Accordingly, the absence of a

transcript concerning the motion in limine is an inconsequential omission from the

record which is immaterial to a proper determination of this appeal.

On March 8, 2016, the defendant filed a motion for a new trial. She alleged

that the verdict was contrary to the law and the evidence and that the court' s ruling

on a written motion (the denial of a bill of particulars) showed prejudicial error. See

La. Code Crim. P. art. 85l( B)( 1) and ( 2). The minutes of March 16, 2016 indicate

the motion was denied.' ° They also indicate that the defendant advised the court she

would seek a supervisory writ from the ruling of the court. The court set a return

date of May 10, 2016. On May 6, 2016, the defendant moved for an extension of

time to seek supervisory relief from the ruling denying the motion for bill of

particulars.

10 The minutes of March 16, 2016 indicate the motion for new trial was filed and denied when the matter came before the court for sentencing. The motion, however, is stamped filed on March 8, 2016, and the order attached to the motion shows Judge White scheduled a hearing on the motion for July 5, 2016. 16 On July 5, 2016, the matter came before the court for motions. Judge White

asked the State and the defense to brief certain issues, including " whether or not the

motion for new trial is timely, motion for extension of time, you know, was

timely[,]" before she ruled on the motion for extension of time to take writs. The

court maintained August 16, 2016 as the sentencing date and stated it would " issue

it' s [ sic] ruling, hopefully on that day and or give [ the State and the defendants] an

opportunity to argue on that day."

Effective November 14, 2016, Judge Bennett was assigned as Judge Pro

Tempore to Judge White' s section of court. The matter came before Judge Bennet

for motions and sentencing on December 16, 2016. The defendant correctly notes

that "[ t]he record is void of any signed orders, minutes, or transcript of the August

16, 2016 hearing." This, however, is because the hearing scheduled for that date

was actually held on December 16, 2016. The record contains a full transcript of the

December 16, 2016 hearing.

MODIFICATION OF RESTITUTION —PROCEDURAL BAR

In its first assignment of error, the State argues that the trial court abused its

discretion in modifying the restitution amount because the defendant failed to file a

timely motion to reconsider sentence following sentencing on December 16, 2016.

The State agrees that an extension of time for Judge White to revisit the sentence

imposed by Judge Bennett, if authorized by La. Code Crim. P. art. 881. 1, is reasonable.

The State does not agree, however, that allowing a trial judge to maintain jurisdiction

for an indeterminate amount of time, i.e., until an offender completes a sentence, is

reasonable.

On December 16, 2016, the defendant was sentenced and ordered to pay

54, 729. 72 restitution. The court indicated it was " retaining jurisdiction" on the

sentence under La. Code Crim. P. art. 881. 1 " and that will leave, too, Judge White

17 the option of taking a look in the future, and I suspect that a lot of it will have to do

with whether or not any restitution, or any efforts of restitution are made in the

matter." The defendant did not make or file a motion to reconsider sentence. On

August 3, 2017, she moved to terminate the probation condition of restitution and to

be declared indigent. 11 On August 24, 2017, Judge White denied the motion. On

February 9, 2018, the defendant filed a " motion to reurge request [ for] a restitution

hearing." On January 4, 2019, following a hearing, the court modified the restitution

obligation by ordering the defendant to pay $ 10, 000 restitution for the expenses of

prosecution by the Attorney General' s Office 12 and zero restitution to DM.

A trial court may correct an illegal sentence at any time. La. Code Crim. P. art.

882( A); see also La. Code Crim. P. art. 881. 5. Only those claims relating to the legality

ofthe sentence itself under the applicable sentencing statutes may be raised in a motion

to correct an illegal sentence. State v. Gedric, 99- 1213 ( La. App. 1st Cir. 6/ 3/ 99), 741

So.2d 849, 851- 52 ( per curiam), writ denied, 99- 1830 ( La. 11/ 5/ 99), 751 So. 2d 239.

Even if the sentence is legal, the court " may amend or change the sentence,

within the legal limits of its discretion, prior to the beginning of execution of the

sentence." La. Code Crim. P. art. 881( A) (emphasis added). After commencement of

execution of the sentence, " in felony cases in which the defendant has been sentenced

to imprisonment without hard labor and in misdemeanor cases, the sentencing judge

may reduce the sentence or may amend the sentence to place the defendant on

supervised probation." La. Code Crim. P. art. 881( B)( 1) ( emphasis added); Gedric,

741 So. 2d at 852.

11 The defendant alleged she had not been provided a hearing " for this Honorable Court to determine a restitution amount, if any, [ she] should have to pay through her probation." She argued the current probation condition of restitution payments of $ 1, 000. 00 per month should be

suspended immediately and a hearing should be held in front of this Honorable Court to determine a restitution amount, if any, is due to be paid." 12 See footnote 3, supra.

18 For felony cases in which the defendant has been sentenced to imprisonment at

hard labor (as in this case), there is no authorization for the court to amend the sentence

after execution of the sentence has begun unless the court grants a timely filed motion

to reconsider sentence. A motion to reconsider sentence must be filed within 30 days

after imposition of sentence ( unless the court at sentencing sets a longer time). La.

Code Crim. P. art. 881. 1( A)( 1). An " out -of time" - motion to reconsider sentence is not

contemplated by the Code of Criminal Procedure nor allowed by the jurisprudence. If

the court grants a motion to reconsider sentence, it may resentence the defendant

despite the pendency of an appeal or the commencement of execution of the sentence.

La. Code Crim. P. art. 881. 1( C); Gedric, 741 So. 2d at 852.

Louisiana Code of Criminal Procedure article 82213 does not purport to modify

jurisprudential or statutory authority for consideration of a motion to reconsider

sentence. The statutory framework, set out above, prevents a judge from becoming a

one man pardon board." Id.

Article 881. 1 does not speak to the trial court' s ability to " maintain

jurisdiction." Rather, the article provides that in felony cases, the trial court may

extend the period of time in which the state or a defendant may make or file a motion

to reconsider sentence. See La. Code Crim. P. art. 881. 1( A)( 1); State v. Lewis,

2016- 0533 ( La. App. 1 st Cir. 10/ 3 1/ 16), 207 So. 3d 1078, 1081.

Louisiana Revised Statutes 15: 566. 2 provides that a sentence shall be

considered as commencing on the day following the day on which a defendant is

sentenced without regard to the date of incarceration in the state penitentiary.

Louisiana Revised Statutes 15: 566. 2 is in Chapter 4, Execution of Sentence, whereas

Article 881 falls under the sentencing provisions of Title 30. Article 881, if

interpreted literally with La. R.S. 15: 566.2, gives a defendant whose sentence is not

13 Article 822 governs the procedure when " after the sentence is imposed, [ the trial court] consider[ s] amending or modifying the sentence imposed[.]" 19 stayed less than one day to have his sentence amended. Any other interpretation

would mean that a sentence can be amended until the defendant started serving that

particular sentence, creating numerous problems. State v. Branch, 96- 1626 ( La.

App. 3rd Cir. 5/ 21/ 97), 696 So.2d 81, 84. Additionally, with the enactment of Article

881. 1, a defendant has thirty days after sentencing to file a motion to reconsider

sentence, and an illegal sentence can be corrected at any time pursuant to Article

882. Thus, a defendant is given sufficient time to convince the trial court to alter his

sentence, without the need for a liberal interpretation of Article 881. Id.; see also

State v. Guajardo, 428 So. 2d 468, 470 ( La. 1983) ("[ t] he language of Article 881

itself indicates that the execution of a sentence does not commence with its

imposition, since the article contemplates a period of time after its imposition during

which the trial judge may amend the sentence. Furthermore, our law fixes the day

after imposition as the point of commencement of a hard labor sentence.").

In the instant case, the trial court extended the period for filing for

reconsideration of sentence from 30 days until Judge White could "[ take] a look in

the future." Even considering the defendant' s motion to " terminate probation

condition of restitution and to declare [ defendant] indigent," as a motion to

reconsider sentence, that motion was denied on August 24, 2017. Thus, the February

9, 20181 " motion to reurge request [ for] a restitution hearing" was an untimely

motion for reconsideration of sentence. The trial court abused its discretion in

considering the motion. A trial court may not revisit a previously denied motion to

reconsider sentence. State v. Perkins, 2008- 0078 ( La. App. 4th Cir. 6/ 25/ 08), 988

So.2d 793, 801, writ denied, 2008- 1675 ( La. 3/ 4/ 09), 3 So.3d 471. Further, the point

of commencement of execution of sentence in this matter was December 17, 2016.

See La. R.S. 15: 566. 2. Absent a timely motion to reconsider sentence, the trial court

acted as " one man pardon board in modifying the restitution obligation on January 4,

2019. See Gedric, 741 So. 2d at 852. Accordingly, the trial court' s ruling of January

20 45 2019 hereby is vacated, and the defendant' s obligation to pay restitution as set forth on December 16, 2016 is reinstated. 14

This assignment of error has merit.

MODIFICATION OF RESTITUTION - ABUSE OF DISCRETION

In assignment of error number 2, the State argues the trial court abused its

discretion in modifying restitution because the State presented competent evidence that

the Louisiana Department ofHealth (LDH)15 had paid back approximately four million

dollars to the Centers for Medicare and Medicaid Services. Our decision on State

assignment of error number i causes us to pretermit consideration of this assignment

of error.

LIMITATION OF PROSECUTION UNDER LOUISIANA CODE OF CRIMINAL PROCEDURE ARTICLE 572

In the instant case, the State addresses the claim of Dwaine Woods that the

evidence failed to establish a continuing criminal act by him sufficient to defeat the

time limitation of La. Code Crim. P. art. 572. The defendant does not raise this claim.

Accordingly, we pretermit consideration of this issue.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART; MODIFICATION OF RESTITUTION VACATED; RESTITUTION ORDER OF DECEMBER 16, 2016 REINSTATED.

14 The State cites State v. Temple, 2000- 2183 ( La. App. 4th Cir. 5/ 16/ 01), 789 So. 2d 639, 646, for the following proposition "[ i] f the trial court granted an indefinite period within which to file a motion to reconsider the sentence, until the motion is filed and acted upon, a defendant would be precluded from appealing his conviction and sentence because a conviction without a final sentence is a non -appealable judgment." We do not agree that, because a defendant may still file a motion to reconsider sentence, a sentence is not " final" for purposes of appeal. See Lewis, 207 So. 3d at 1081, to -wit:

In the instant case, the trial judge' s statement that he was " maintain[ ing] jurisdiction of this case for a period of one year under Article 881. 1" is simply an extension of time for defendant to file a motion to reconsider sentence under Article 881. 1( A)( 1). That extension of time does not divest this Court of jurisdiction. Article 916( 3) clearly contemplates that a defendant may file a motion to reconsider sentence during the pendency of his appeal. 15 Pursuant to 2016 La. Acts No. 300, effective June 2, 2016, the Louisiana Legislature renamed and recreated the " Department of Health and Hospitals" as the " Louisiana Department of Health."