STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-1189
STATE OF LOUISIANA
VERSUS
JOHN WESLEY BILLIOT
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 35370-11 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE
**********
JIMMIE C. PETERS JUDGE
**********
Court composed of Jimmie C. Peters, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
AFFIRMED.
John F. DeRosier District Attorney Karen C. McLellan Assistant District Attorney Fourteenth Judicial District P. O. Box 3206 Lake Charles, LA 70602-3206 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana Paula C. Marx Louisiana Appellate Project P. O. Box 80006 Lafayette, LA 70598-0006 (337) 991-9757 COUNSEL FOR DEFENDANT/APPELLANT: John Wesley Billiot
John Wesley Billiot Louisiana State Penitentiary Camp C, Tiger 4/R Angola, LA 70712 IN PROPER PERSON PETERS, J.
The defendant, John Wesley Billiot, entered a no-contest plea to obscenity, a
violation of La.R.S. 14:106. Thereafter, the trial court sentenced him to serve three
years at hard labor and to pay a fine of $2,500.00. The trial court further ordered
that the three-year sentence run consecutive to other sentences the defendant had
received for pleas to other charges entered on the same day. After the trial court
rejected his motion to reconsider the sentence, the defendant appealed. For the
following reasons, we affirm the conviction and sentence in all respects.
DISCUSSION OF THE RECORD
The matter before us is a companion case to two other appeals now before us
involving basically the same issues. However, the appeals are not consolidated as
they each arise from different criminal acts. The connecting link is the fact that the
three pleas arise from the same plea negotiations with the State of Louisiana (state).
On September 1, 2011, the state charged the defendant by grand jury
indictment with two counts of forcible rape, violations of La.R.S. 14:42.1; and with
four counts of tattooing and body piercing a minor without consent, violations of
La.R.S. 14:93.2. The defendant entered not-guilty pleas to all of the offenses on
September 12, 2011. On January 28, 2013, the state amended one count of the
indictment to charge the defendant with obscenity and dismissed the remaining
charges. On that same day, the defendant entered a no-contest plea to the
obscenity charge, and on April 24, 2013, the trial court sentenced the defendant.
On that same day, the trial court sentenced the defendant on seven other felonies to
which he had previously entered no-contest pleas: three counts of aggravated
battery, violations of La.R.S. 14:34; two counts of armed robbery, violations of
La.R.S. 14:64; and two counts of armed robbery with a firearm, violations of La.R.S. 14:64.3.
At the time the defendant entered his plea of no contest to obscenity, the
state provided the trial court with the factual basis in support of the charge. This
factual basis established that between November 1, 2010 and January 31, 2011, the
defendant exposed his genitals and pubic hair to the thirteen-year-old victim in this
matter and induced her to expose her vulva and nipples to him. Additionally, the
defendant committed sexual acts with the victim and solicited or enticed her to
commit the prohibited acts knowing that she was under the age of seventeen. The
defendant’s purpose in respect to these actions, according to the state, was to
arouse the sexual desires or interest of both him and the victim.
On appeal, the defendant asserts (1) that his sentence violates the terms of
his plea agreement and that either the plea agreement should be enforced or he
should be allowed to withdraw his no-contest plea; (2) that the trial court erred in
failing to rule on his pro se motion to withdraw his plea; and (3) that the $2,500.00
fine should be vacated given his indigent status.
Assignment of Error Numbers One and Two
As previously stated, on the day the defendant entered his no-contest plea to
the charge in this matter, he did so in two other pending matters involving seven
additional felony counts. The end result of his pleas from a sentencing standpoint
is as follows:
Trial Court Docket Number 07597-11
Aggravated battery – ten years at hard labor to run consecutive to all of the other sentences. (The state had recommended a ten year hard labor sentence to run current to the other sentences).
This offense was committed on January 15, 2011, and involves a victim different from the victim in the current matter.
Trial Court Docket Number 07619-11 2 Armed robbery (two counts) – seventy years at hard labor on each count to run concurrently to each other and to be served without the benefit of parole, probation, or suspension of sentence. (The state had recommended fifteen years at hard labor without benefit of parole, probation, or suspension of sentence on each count to run concurrent to the other sentences).
Armed robbery with a firearm (two counts) – five years at hard labor to run concurrently with each other, but consecutively with the armed robbery sentences, and to be served without the benefit of parole, probation, or suspension of sentence. (The state had recommended five years at hard labor without benefit of parole, probation, or suspension of sentence on each count to run consecutive to the armed robbery sentences).
Aggravated battery (two counts) – five years at hard labor to run concurrently with each other and concurrently with the two armed robbery counts and the two armed robbery with a firearm counts. (The state had recommended ten years at hard labor on each count to run concurrent with the other sentences).
These offenses were committed on January 3, 2011, and involved victims different from the victim in the current matter.
Trial Court Docket Number 35370-11 (the matter now before us)
Obscenity – three years at hard labor to run consecutively with the other sentences and a fine of $2,500.00. (The state had recommended three years at hard labor to run concurrent with the other sentences).
Additionally, as part of the plea agreement, the state agreed not to pursue the
defendant as a habitual offender and to recommend that he receive a combined
maximum sentence of twenty-five years at hard labor without the benefit of
probation, parole, or suspension of sentence for all of the convictions in the three
docket numbers. At the hearing in which the defendant entered his plea, the state
made the recommendations to the trial court as promised.
In this first assignment of error, the defendant asserts that despite the plea
agreement, his pleas subjected him to sentences totaling eighty-eight years at hard
labor instead of twenty-five years. In the second assignment of error, he asserts
that the trial court erred in failing to rule on his pro se motion to withdraw his plea. 3 We considered these same assignments of error in the companion cases and have
rendered an opinion this day finding no merit in either of those arguments. State v.
Billiott, 13-1187 (La.App. 3 Cir. __/__/14), __ So.3d __; State v. Billiott, 13-1188
(La.App. 3 Cir. __/__/14), __ So.3d __. We adopt the analysis set forth in that
opinion as though set forth herein in full and, for those reasons, find no merit in the
first two assignments of error.
Assignment of Error Number Three
In his third assignment of error, the defendant asserts that because he is
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-1189
STATE OF LOUISIANA
VERSUS
JOHN WESLEY BILLIOT
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 35370-11 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE
**********
JIMMIE C. PETERS JUDGE
**********
Court composed of Jimmie C. Peters, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
AFFIRMED.
John F. DeRosier District Attorney Karen C. McLellan Assistant District Attorney Fourteenth Judicial District P. O. Box 3206 Lake Charles, LA 70602-3206 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana Paula C. Marx Louisiana Appellate Project P. O. Box 80006 Lafayette, LA 70598-0006 (337) 991-9757 COUNSEL FOR DEFENDANT/APPELLANT: John Wesley Billiot
John Wesley Billiot Louisiana State Penitentiary Camp C, Tiger 4/R Angola, LA 70712 IN PROPER PERSON PETERS, J.
The defendant, John Wesley Billiot, entered a no-contest plea to obscenity, a
violation of La.R.S. 14:106. Thereafter, the trial court sentenced him to serve three
years at hard labor and to pay a fine of $2,500.00. The trial court further ordered
that the three-year sentence run consecutive to other sentences the defendant had
received for pleas to other charges entered on the same day. After the trial court
rejected his motion to reconsider the sentence, the defendant appealed. For the
following reasons, we affirm the conviction and sentence in all respects.
DISCUSSION OF THE RECORD
The matter before us is a companion case to two other appeals now before us
involving basically the same issues. However, the appeals are not consolidated as
they each arise from different criminal acts. The connecting link is the fact that the
three pleas arise from the same plea negotiations with the State of Louisiana (state).
On September 1, 2011, the state charged the defendant by grand jury
indictment with two counts of forcible rape, violations of La.R.S. 14:42.1; and with
four counts of tattooing and body piercing a minor without consent, violations of
La.R.S. 14:93.2. The defendant entered not-guilty pleas to all of the offenses on
September 12, 2011. On January 28, 2013, the state amended one count of the
indictment to charge the defendant with obscenity and dismissed the remaining
charges. On that same day, the defendant entered a no-contest plea to the
obscenity charge, and on April 24, 2013, the trial court sentenced the defendant.
On that same day, the trial court sentenced the defendant on seven other felonies to
which he had previously entered no-contest pleas: three counts of aggravated
battery, violations of La.R.S. 14:34; two counts of armed robbery, violations of
La.R.S. 14:64; and two counts of armed robbery with a firearm, violations of La.R.S. 14:64.3.
At the time the defendant entered his plea of no contest to obscenity, the
state provided the trial court with the factual basis in support of the charge. This
factual basis established that between November 1, 2010 and January 31, 2011, the
defendant exposed his genitals and pubic hair to the thirteen-year-old victim in this
matter and induced her to expose her vulva and nipples to him. Additionally, the
defendant committed sexual acts with the victim and solicited or enticed her to
commit the prohibited acts knowing that she was under the age of seventeen. The
defendant’s purpose in respect to these actions, according to the state, was to
arouse the sexual desires or interest of both him and the victim.
On appeal, the defendant asserts (1) that his sentence violates the terms of
his plea agreement and that either the plea agreement should be enforced or he
should be allowed to withdraw his no-contest plea; (2) that the trial court erred in
failing to rule on his pro se motion to withdraw his plea; and (3) that the $2,500.00
fine should be vacated given his indigent status.
Assignment of Error Numbers One and Two
As previously stated, on the day the defendant entered his no-contest plea to
the charge in this matter, he did so in two other pending matters involving seven
additional felony counts. The end result of his pleas from a sentencing standpoint
is as follows:
Trial Court Docket Number 07597-11
Aggravated battery – ten years at hard labor to run consecutive to all of the other sentences. (The state had recommended a ten year hard labor sentence to run current to the other sentences).
This offense was committed on January 15, 2011, and involves a victim different from the victim in the current matter.
Trial Court Docket Number 07619-11 2 Armed robbery (two counts) – seventy years at hard labor on each count to run concurrently to each other and to be served without the benefit of parole, probation, or suspension of sentence. (The state had recommended fifteen years at hard labor without benefit of parole, probation, or suspension of sentence on each count to run concurrent to the other sentences).
Armed robbery with a firearm (two counts) – five years at hard labor to run concurrently with each other, but consecutively with the armed robbery sentences, and to be served without the benefit of parole, probation, or suspension of sentence. (The state had recommended five years at hard labor without benefit of parole, probation, or suspension of sentence on each count to run consecutive to the armed robbery sentences).
Aggravated battery (two counts) – five years at hard labor to run concurrently with each other and concurrently with the two armed robbery counts and the two armed robbery with a firearm counts. (The state had recommended ten years at hard labor on each count to run concurrent with the other sentences).
These offenses were committed on January 3, 2011, and involved victims different from the victim in the current matter.
Trial Court Docket Number 35370-11 (the matter now before us)
Obscenity – three years at hard labor to run consecutively with the other sentences and a fine of $2,500.00. (The state had recommended three years at hard labor to run concurrent with the other sentences).
Additionally, as part of the plea agreement, the state agreed not to pursue the
defendant as a habitual offender and to recommend that he receive a combined
maximum sentence of twenty-five years at hard labor without the benefit of
probation, parole, or suspension of sentence for all of the convictions in the three
docket numbers. At the hearing in which the defendant entered his plea, the state
made the recommendations to the trial court as promised.
In this first assignment of error, the defendant asserts that despite the plea
agreement, his pleas subjected him to sentences totaling eighty-eight years at hard
labor instead of twenty-five years. In the second assignment of error, he asserts
that the trial court erred in failing to rule on his pro se motion to withdraw his plea. 3 We considered these same assignments of error in the companion cases and have
rendered an opinion this day finding no merit in either of those arguments. State v.
Billiott, 13-1187 (La.App. 3 Cir. __/__/14), __ So.3d __; State v. Billiott, 13-1188
(La.App. 3 Cir. __/__/14), __ So.3d __. We adopt the analysis set forth in that
opinion as though set forth herein in full and, for those reasons, find no merit in the
first two assignments of error.
Assignment of Error Number Three
In his third assignment of error, the defendant asserts that because he is
indigent, the $2,500.00 fine should be vacated as no indigent defendant can be
subjected to confinement in lieu of payment of a fine or cost. He notes that his
indigent status is clear from the record in that he was represented by a court-
appointed indigent defender at trial and by the Louisiana Appellate Project on
appeal. Finally, he asserts that the fine is unduly burdensome and serves no useful
purpose.
Louisiana Revised Statutes 14:106(G)(1) provides that one convicted of
obscenity can be punished by imposition of a fine of not less than $1,000.00 nor
more than $2,500.00, or imprisonment with or without hard labor for not less than
six months nor more than three years, or both. Thus, the fine imposed on the
defendant is within statutory limits.
In considering this assignment of error, we note that this very issue has been
before us before. In State v. Allen, 09-1281 (La.App. 3 Cir. 5/5/10), 36 So.3d
1091, the defendant argued that the imposition of his $2,000.00 fine should be set
aside because of his indigent status. In support of his argument, the defendant
referred this court to State v. Perry, 472 So.2d 344 (La.App. 3 Cir. 1985), where
this court found that a $5,000.00 fine imposed on an indigent defendant, with a
4 one-year prison-default provision, could not stand given the defendant’s indigent
status.
In Perry, the indigent defendant with court-appointed counsel had pled
guilty to attempted distribution of a counterfeit schedule II controlled-dangerous
substance. In addition to a four-year hard-labor sentence, the trial court ordered
the defendant to pay a $5,000.00 fine and court costs, and, in default of paying the
fine and costs, the defendant was to serve an extra year of incarceration.
The court in Allen distinguished Perry in a number of ways, including the
fact that in the matter then before it, the trial court had not imposed a default
condition on the defendant as had been the case in Perry. The court noted that it
was unable to find any jurisprudence which prohibited or limited the trial court’s
imposition of a fine on an indigent defendant other than in situations where default
time was imposed on the indigent defendant.
DISPOSITION
For the foregoing reasons, we affirm the defendant’s conviction and
sentence in all respects.
AFFIRMED.