State of Louisiana v. Kelvin Latrial McAdory

• Court: Louisiana Court of Appeal
• Decided: January 4, 2018
• Docket: KA-0017-0571
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

17-571

STATE OF LOUISIANA

VERSUS

KELVIN LATRIAL MCADORY

**********

APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 87,894 HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

PHYLLIS M. KEATY JUDGE

Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS. Asa A. Skinner District Attorney Terry W. Lambright First Assistant District Attorney Post Office Box 1188 Leesville, Louisiana 71446 (337) 239-2008 Counsel for Appellee: State of Louisiana

Edward L. Tarpley, Jr. Attorney At Law 819 Johnston Street Alexandria, Louisiana 71301 (318) 487-1460 Counsel for Defendant/Appellant: Kelvin Latrial McAdory KEATY, Judge.

Defendant, Kelvin Latrial McAdory, appeals the trial court’s sentence. For

the following reasons, the trial court’s judgment is affirmed and remanded with

instructions.

FACTS & PROCEDURAL BACKGROUND

On November 7, 2014, Defendant, Kelvin Latrial McAdory, was a passenger

in a vehicle in Vernon Parish when it was stopped by police for a traffic violation.

During the traffic stop, a consent to search the vehicle was requested and

subsequently denied. Thereafter, a police canine at the scene was led around the

vehicle and alerted the police to the presence of drugs. A subsequent search of the

car uncovered drugs, which Defendant admitted belonged to him.

On March 2, 2016, Defendant was charged with the intent to distribute

marijuana, in violation of La.R.S. 40:966(A)(1); possession with the intent to

distribute cocaine, in violation of La.R.S. 40:967(A)(1); possession with the intent

to distribute methamphetamine, in violation of La.R.S. 40:967(A)(1); and

possession of ethylone/bath salts, in violation of La.R.S. 40:966(C). On the same

day, Defendant pled guilty to possession of methamphetamine pursuant to a

written Plea Agreement. In the Plea Agreement, which was silent with respect to

Defendant’s sentence, the State dismissed the remaining charges. The trial court

thereafter ordered a presentence investigation (PSI) report. On May 10, 2016,

Defendant was sentenced to serve five years at hard labor, three years suspended,

with him serving five years of supervised probation, with credit for time served.

He was also fined $4,000 plus court costs and, as conditions of probation, ordered

to pay $2,500 to the district attorney’s office for the cost of prosecution, $1,000 in

restitution to the clerk of court, supervision fees, and $150 for the PSI. Defendant

did not object to his sentence. On June 3, 2016, Defendant timely filed a Motion to Reconsider Sentence,

arguing that the trial court failed to consider mitigating factors in its sentencing.

He also alleged that the imposition of fines and costs was unreasonable, excessive,

and imposed without any notice to Defendant that he would be subject to costs

above and beyond the statutory fine and normal court costs. Following a hearing

on August 24, 2016, the trial court denied the motion to reconsider. Defendant

thereafter sought review of the denial through writ of review to this court. A panel

of this court remanded the case to the trial court to be treated as an appeal rather

than a writ due to Defendant’s conviction arising out of a criminal case triable by

jury. State v. McAdory, 16-872 (La.App. 3 Cir. 3/15/17) (unpublished writ

opinion).

Defendant appeals his sentence, arguing the trial court erred in denying his

Motion to Reconsider Sentence because he did not have sufficient notice of the

costs to be assessed by the trial court for the district attorney and clerk of court.

DISCUSSION

I. Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find an error

patent concerning Defendant’s sentence. In sentencing Defendant, the trial court

imposed a fine of $4,000, court costs, $2,500 for the cost of prosecution, and

$1,000 in restitution to the clerk of court. In outlining the conditions of probation,

the trial court stated:

You will have to follow the normal conditions of probation and the following special conditions: you pay your fine and costs that are due immediately. If you do not pay those out, you have to get with the court’s collection officer if you decide to do that. If not, you’ll have to do one year in the Vernon Parish jail. Likewise, you will have to pay the fine and costs over that payment plan you work out at a minimum of $150 per month; a supervision fee in the amount of $71 2 to the probation office; $150 for the PSI; the restitution of $2,500 to the - - for the costs of prosecution as well as the $1,000 to the Clerk of Court as well.

A payment plan was imposed for the fine and court costs. However, a

payment plan was not imposed for the $150 PSI fee, the $2,500 cost of prosecution,

and the $1,000 payment to the clerk of court. In State v. Wagner, 07-127, p. 7

(La.App. 3 Cir. 11/5/08), 996 So.2d 1203, 1208, this court held:

When the fines and costs are imposed as a condition of probation, but the trial court is silent as to the mode of payment or the trial court attempts to establish a payment plan, this court has required a specific payment plan be established. See State v. Theriot, 04-897 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016 (fine, court costs, and cost of prosecution); State v. Fuslier, 07-572 (La.App. 3 Cir. 10/31/07), 970 So.2d 83 (fine and costs); State v. Console, 07-1422 (La.App. 3 Cir. 4/30/08), 981 So.2d 875 (fine and court costs).

We view this procedure as no different from payment plans for restitution. See State v. Dean, 99-475 (La.App. 3 Cir. 11/3/99), 748 So.2d 57, writ denied, 99-3413 (La. 5/26/00), 762 So.2d 1101 (restitution only), State v. Reynolds, 99-1847 (La.App. 3 Cir. 6/7/00), 772 So.2d 128 (restitution, fine, and costs), State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597 (restitution, fine, court costs, and reimbursement to Indigent Defender Board), and State v. Fontenot, 01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255 (restitution, court costs and payments to victim’s fund, Indigent Defender Board, and District Attorney).

We, therefore, remand this case to the trial court for establishment of a payment plan for the fine, noting that the plan may either be determined by the trial court or by Probation and Parole, with approval by the trial court. See Stevens, 949 So.2d 597.

Likewise, in the present case, Defendant’s case is remanded to the trial court

for establishment of a payment plan for the $150 PSI fee, the $2,500 cost of

prosecution fee, and the $1,000 payment to the clerk of court. This plan may either

be determined by the trial court or by the Office of Probation and Parole with

approval by the trial court.

3 II. Assignment of Error

At the outset, we address the State’s objection to Defendant’s appeal,

arguing that it lacks merit because Defendant waived his right to appeal his

conviction and sentence. In support, the State references the Plea Agreement,

which was signed by Defendant and his attorney at the time of his plea, which

contains the following clause:

3) By accepting this plea agreement, the defendant waives, releases and relinquishes any and all rights to appeal the conviction and sentence resulting from this plea agreement, whether on direct appeal or by application for post-conviction relief, motion to modify sentence, motion to correct sentence, application for habeas corpus relief, or otherwise.

According to the State, the foregoing language represents a clear and

unambiguous waiver of Defendant’s appellate rights which were knowingly and

intelligently given. The State compares the similarities between the language at

issue to the language of a waiver of post-conviction relief rights upheld by this

court in State v. Crittenden, 14-83 (La.App. 3 Cir. 6/4/14) (unpublished opinion).1

We note, however, that the language in Crittenden did not include any waiver of

1 The Plea Agreement in Crittenden, p. 4, contained the following language:

(3) By accepting this plea agreement, the defendant waives, releases and relinquishes any and all rights to appeal the conviction resulting from this plea agreement, whether on direct appeal or by application for post-conviction relief, application for habeas corpus relief, or otherwise.

(4) By accepting this plea agreement, defendant asserts that he/she is fully satisfied with the services and assistance rendered by his/her counsel and has had sufficient time to confer with counsel concerning his/her case and this plea agreement. By accepting this plea agreement, defendant acknowledges that his/her counsel has performed adequately and competently, securing a satisfactory plea agreement and resolution of defendant’s criminal case(s). By accepting this plea agreement, defendant waives, releases and relinquishes any claim or right to appeal this matter, whether on direct appeal or by application for post-conviction relief, motion to modify sentence, motion to correct sentence, application for habeas corpus relief, or otherwise on a claim of ineffective assistance of counsel. 4 sentencing review; it merely waived the right to challenge the defendant’s

conviction.

Jurisprudence reveals that when a defendant agrees to an open-ended plea

without a sentencing recommendation or sentencing cap, he does not waive his

right to appeal the sentence received. See State v. Miller, 12-1401 (La.App. 3 Cir.

6/5/13), 114 So.3d 670; State v. Pickens, 98-1443 (La.App. 3 Cir. 4/28/99), 741

So.2d 696, writ denied, 99-1577 (La. 11/5/99), 751 So.2d 232, and writ denied, 01-

2178 (La. 4/19/02), 813 So.2d 1081.

In this case, the State contends that the parties agreed to a sentencing cap of

five years on the reduced charge pled by Defendant. We find that is an inaccurate

description of what occurred. At the time of Defendant’s plea, the original

agreement was that Defendant would plead guilty to two charges: possession of

methamphetamine and possession of ethylone. However, confusion existed as the

attorneys believed the maximum sentence on the second charge was five years,

while the trial court stated the maximum sentence was ten years. The State

initially offered a sentencing cap of five years but subsequently dismissed the

charge. Accordingly, there was no sentencing cap in place, as noted on the Plea

Agreement.

As such, the question is whether the clause stating that Defendant waives his

right to appeal his conviction and sentence should be upheld as valid. The State

argues that because the supreme court found in State v. Bordelon, 07-525 (La.

10/16/09), 33 So.3d 842, that even a capital defendant sentenced to death may

waive his right to appeal, the waiver should be considered valid so long as it was

given knowingly and intelligently. We caution, however, that the Bordelon court

also noted it was still required to review the defendant’s capital sentence for

excessiveness under La.Code Crim.P. art. 905.9. Although the excessiveness issue 5 in Bordelon is not relevant in the instant matter, we note that the trial court

instructed Defendant at sentencing that, “[y]ou have two years from the date this

sentence becomes final to assert any claim for post conviction relief and you have

30 days in which to file an appeal.” We will, therefore, address Defendant’s

appeal.

On appeal, Defendant asserts that the trial court erred in denying his Motion

to Reconsider Sentence because he did not have sufficient notice of the costs to be

assessed by the trial court for the district attorney and clerk of court. His actual

argument, however, swings back and forth between an argument for lack of notice

and an argument regarding the excessive amounts of imposed fines. We will,

therefore, address the issue as a hybrid claim of the two arguments.

The procedure required for preserving the review of a sentence on appeal is

codified in La.Code Crim.P. art. 881.1, which states:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.

....

E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

In Louisiana, the law is well settled concerning the standard to be used in

reviewing excessive sentence claims:

[Louisiana Constitution Article] I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the 6 imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La. 6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

. . . [E]ven when a sentence falls within the statutory sentencing range, it still may be unconstitutionally excessive, and in determining whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has suggested that several factors may be considered:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99- 0606 (La. 7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061.

State v. Decuir, 10-1112, pp. 11-13 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 790-91 (second alteration ours).

State v. Zhegao Quan, 14-1126, pp. 5-6 (La.App. 3 Cir. 3/4/15), 157 So.3d 1259,

1263-64.

Defendant argues that the trial court imposed an excessive sentence when it

ordered him to pay $2,500 for prosecution costs and $1,000 in “restitution” fees to

the Vernon Parish Clerk of Court. The supreme court recently upheld a trial

court’s rights to impose costs of prosecution and investigation on convicted 7 criminal defendants. State v. Griffin, 14-1214, 14-1238 (La. 10/14/15), 180 So.3d

1262. Defendant, however, argues not that the trial court lacks authority to impose

said costs upon him but rather argues that the amounts of those fines are excessive.

The Griffin court specifically stated:

[Louisiana Code of Criminal Procedure Article] 887(A) and La.C.Cr.P. art. 895.1(B) are clear and unambiguous on their face, and the articles provide support for the imposition of a broad category of costs of prosecution and costs of investigation within the sound discretion of the trial judge. The permissible costs imposed under these articles are not limited to costs that are special or extraordinary to the case at the bar. The Code of Criminal Procedure does not require that the costs imposed under article 887(A) or article 895.1(B) be expressly tied, dollar-for-dollar, to those incurred by the state in its prosecution or investigation of the case. Nor do the articles require that the costs imposed be accompanied by specific evidentiary proof unique to each and every case. Rather, so long as the defendant has sufficient notice of the imposition of such costs, and as long as the costs are reasonable and not excessive, costs of prosecution and costs of investigation may be imposed upon convicted defendants, as set forth in the articles.

As to the costs imposed in this case on this defendant, all defendants in the 3rd JDC have been on notice since 2004 that a misdemeanor conviction could result in the imposition of a $100 cost of prosecution, and since 2006, that a misdemeanor conviction could result in a $100 cost of investigation. The defendant here was assessed with those standard amounts in accordance with a public fee schedule, the costs were reasonable and not excessive and the defendant had sufficient notice of the costs.

Id. at 1273-74.

In Griffin, 180 So.3d 1262, the defendant was ordered to pay $100 for the

cost of prosecution and an additional $100 for the cost of the sheriff’s investigation.

The trial court noted that those amounts were supported by a 2004 “Omnibus

Motion for Costs of Prosecution” filed by the district attorney’s office and a 2006

en banc order from the judges of the Third Judicial District Court, signed by the

clerk of court, authorizing a $100 cost of investigation for misdemeanor

convictions.

8 Defendant herein contends that he was not provided notice in light of the

testimony of Jeff Skidmore, the Vernon Parish Clerk of Court, who testified that he

had no knowledge of any motion being filed by the district attorney’s office for

costs of prosecution, which would set out any amount to be imposed or of any

order from the judges authorizing the imposition of costs or fees for the clerk of

court. Defendant maintains that absent public notice similar to that present in

Griffin, the costs imposed on him were excessive, unreasonable, improper, and

should be rescinded. Although Defendant claims that the costs imposed are

excessive, his argument addresses a lack of notice, and then concludes by again

claiming the amounts are excessive and unreasonable.

With respect to the notice issue, Defendant’s argument boils down to one

question: Does the existence of La.Code Crim.P. arts. 887(A) and 895.1(B), which

unambiguously give the trial court authority to impose these fines, provide

sufficient notice to defendants that they may be liable for costs above normal fines

and court costs? Louisiana Code of Criminal Procedure Article 887(A) states that

a “defendant who is convicted of an offense . . . shall be liable for all costs of the

prosecution or proceeding[;]” La.Code Crim.P. art. 895.1(B)(3) allows a trial court,

which suspends a defendant’s sentence and places him on probation, to “order

placed, as a condition of probation, an amount of money to be paid by the

defendant to any or all of the following[,]” including the “clerk of court for costs

incurred.” Based upon his focus on Skidmore’s testimony, Defendant appears to

argue that the outcome in Griffin relied exclusively on the existence of the nearly

decade-old public notices alerting defendants to the possibility of liability for

exactly the costs imposed. This argument lacks merit. While it is true that the two

outstanding public notices provided additional notice of the possibility that the trial

court might impose additional costs on the defendant in Griffin, the supreme court 9 made it clear that the authority for those fines came not from those public notices,

but from the Code of Criminal Procedure.

To accept Defendant’s argument herein would make La.Code Crim.P. arts.

887(A) and 895.1(B) obsolete unless and until the district attorney and trial court

judges of a judicial district took additional steps to promulgate notices to potential

criminal defendants that they are liable for the costs of their prosecutions.

Furthermore, “[e]veryone is presumed to know the law, including the penalty

provisions that apply.” State v. Sugasti, 01-3407, p. 7 (La. 6/21/02), 820 So.2d 518,

522.

To the extent that Defendant argues the amounts of the fees imposed are

excessive, the Griffin court noted in footnote six that, “[l]ower courts of this state

have also historically upheld the imposition of costs of prosecution under article

887(A) and costs of investigation under article 895.1(B).” Griffin, 180 So.3d at

1269, n.6. In particular, the Griffin court referenced State v. Heath, 513 So.2d 493

(La.App. 2 Cir. 1987), writ denied, 519 So.2d 141 (La.1988), wherein the second

circuit affirmed the imposition of over $3,800 associated with prosecution costs;

State v. Ratliff, 35-144 (La.App. 2 Cir. 9/26/01), 796 So.2d 101, wherein the

second circuit upheld the imposition of $2,500 associated with costs of prosecution

as not excessive; and State v. Brown, 04-184 (La.App. 3 Cir. 9/29/04), 882 So.2d

1273, wherein a panel of this court explained that costs of investigation are

generally upheld so long as payment is made to a party listed by La.Code Crim.P

art. 895.1. In light of these cases, we hold the fees are not excessive and affirm

Defendant’s sentence.

CONCLUSION

The trial court’s sentence imposed on Defendant, Kelvin Latrial McAdory,

is affirmed. The case is further remanded to the trial court for establishment of a 10 payment plan for the $150 PSI fee, the $2,500 cost of prosecution, and the $1,000

payment to the clerk of court. This plan may either be determined by the trial court

or by the Office of Probation and Parole with approval by the trial court.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.