State v. Perry

168 So. 3d 768, 2015 La. App. LEXIS 262, 2015 WL 629436
CourtLouisiana Court of Appeal
DecidedFebruary 11, 2015
DocketNo. 14-KA-818
StatusPublished

This text of 168 So. 3d 768 (State v. Perry) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Perry, 168 So. 3d 768, 2015 La. App. LEXIS 262, 2015 WL 629436 (La. Ct. App. 2015).

Opinion

JUDE G. GRAVOIS, Judge.

12Pefendant, Herman Perry, appeals his conviction and sentence for theft of goods valued at over $1,500.00. Specifically, he seeks review of the amount of restitution [770]*770set as part of his sentence. For the reasons that follow, we affirm defendant’s conviction and sentence, except that we vacate the trial court’s restitution order and remand the matter for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

On April 2, 2013, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Herman Perry, with theft of U.S. Currency, valued at greater than $1,000.00, from the Belmont Apartments, in violation of La. R.S. 14:67. On November 25, 2013, defendant was arraigned and entered a plea of not guilty to the charge. On July 21, 2014, the bill of information was amended to theft of U.S. Currency, valued at greater than $1,500.00, from the Belmont Apartments, in violation of La. R.S. 14:67.

|sOn July 28, 2014, defendant pled guilty under a plea agreement to the amended charge of violating La. R.S. 14:67 (theft of over $1,500.00). Pursuant to the plea . agreement, the State did not file a multiple offender bill of information against defendant. Also, it was made clear to defendant during the guilty plea colloquy that as part of the plea agreement, he would be required to pay restitution to the victim in an amount to be determined by the court following a restitution hearing. Defendant was then sentenced, pursuant to the agreement, to imprisonment at hard labor for a term of two years.1

Immediately after- defendant’s guilty plea was accepted and his sentence was imposed, the trial court conducted a restitution hearing. Following testimony from two witnesses, the court set defendant’s restitution amount at $15,200.00, to be paid in accordance with a payment schedule filed in the record. Defense counsel orally objected to the amount of restitution as determined by the trial court, which objection was overruled by the trial court and noted for the record. Defendant subsequently filed a motion for reconsideration of the restitution portion of his sentence, arguing that the State “failed to prove the actual amount of pecuniary loss,” which motion was denied on August 4, 2014. On August 11, 2014, defendant filed a motion for an appeal, which was granted on August 18, 2014.

FACTS

Defendant pled guilty without proceeding to trial. As such, the details of the facts surrounding the offense are not fully developed in the appellate record. The bill of information provides the facts, as does the guilty plea colloquy, during which the State provided the following factual basis for the plea: on or about January 16, 2013, defendant committed theft of U.S. Currency, valued at greater than $1,500.00, from the Belmont Apartments, in violation of La. R.S. 14:67.

\ ¿ASSIGNMENT OF ERROR

Restitution amount

In his only assignment of error, defendant argues that the trial court’s order of restitution in the amount of $15,200.00 was an abuse of discretion and resulted in an excessive sentence, because the restitution figure was based upon “general estimates” made by the witnesses, rather than upon “definitive proof of pecuniary loss,” such as through an invoice, bill of sale, itemized bid, or proof of payment.

Both the Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution gov[771]*771ern whether a sentence is unconstitutionally excessive and therefore invalid. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Nguyen, 06-969 (La.App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied, 07-1161 (La.12/7/07), 969 So.2d 628. Furthermore, a sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622; State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158, 1167. Although a sentence is within the statutory limits, it can be reviewed for unconstitu--tional excessiveness. State v. Petty, 12-278 (La.App. 5 Cir. 10/30/12), 103 So.3d 616, 625.

Louisiana Code of Criminal Procedure article 883.2(A), dealing with restitution to a victim in a criminal case, provides:

In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose.

(Emphasis added.)

|BIn ordering restitution, the trial judge has discretion, and his decision will not be disturbed absent an abuse of that discretion. State v. Blanchard, 03-612 (La.App. 5 Cir. 11/12/03), 861 So.2d 657, 668. In reviewing excessive sentence assignments, the sentence imposed will not be set aside absent a showing of manifest abuse of the trial court’s wide discretion. Id.

When determining restitution, sources of information to which a sentencing court may look include evidence usually excluded from the courtroom at the trial of guilt or innocence, e.g., hearsay. State v. McDonald, 33,356 (La.App. 2 Cir. 6/21/00), 766 So.2d 591, 594. See also State v. Myles, 94-0217 (La.6/3/94), 638 So.2d 218, 219. Further, the owner of stolen property may testify regarding the value of the stolen items without the necessity of being qualified as an expert, and such testimony “can constitute ample evidence of the property’s value.” State v. Castillo, 13-552, (La.App. 5 Cir. 10/29/14) 167 So.3d 624, 651, 2014 WL 5463045, at *18; State v. Davis, 569 So.2d 131, 135 (La.App. 5 Cir.1990). Because restitution cannot always be determined with exactitude, the trial court is given discretion in determining the amount of restitution appropriate under the particular circumstances of a given case. McDonald, supra.

At the restitution hearing conducted in the present case, Chris Centineo, director of construction and maintenance for Property One, a property management firm from Metairie, Louisiana, testified that his firm managed the Belmont Apartments. He became aware of some damage to air-conditioning condenser units that took place around January 16, 2013. He was told that the units “appeared to be vandalized.” These were new condenser units that had been recently installed during a fire renovation. He was also told there were eight damaged units. He first received an estimate from “Help Air Conditioning” and then went about making the repairs in “some different ways,” as the property was | fi“cash strapped.” He testified that “in some cases, we would replace it with a new condenser ..., in some cases, we would rob Peter to pay Paul from somewhere else on the property with new [772]*772condensers that were installed in building D.” He also stated that he was told that Property One paid “around $18,000.00” to make the total repairs. He testified that the majority, “if not all of the repairs were made by Help Air.”

On cross-examination, Mr.

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Related

State v. Blanchard
861 So. 2d 657 (Louisiana Court of Appeal, 2003)
State v. Weiland
556 So. 2d 175 (Louisiana Court of Appeal, 1990)
State v. Myles
638 So. 2d 218 (Supreme Court of Louisiana, 1994)
State v. Lawson
885 So. 2d 618 (Louisiana Court of Appeal, 2004)
State v. McDonald
766 So. 2d 591 (Louisiana Court of Appeal, 2000)
State v. Oliveaux
312 So. 2d 337 (Supreme Court of Louisiana, 1975)
State v. Nguyen
958 So. 2d 61 (Louisiana Court of Appeal, 2007)
State v. Guzman
769 So. 2d 1158 (Supreme Court of Louisiana, 2000)
State v. Petty
103 So. 3d 616 (Louisiana Court of Appeal, 2012)
State v. Castillo
167 So. 3d 624 (Louisiana Court of Appeal, 2014)
Ross Milling Co. v. Giliberti
3 La. App. 5 (Louisiana Court of Appeal, 1925)
State v. Davis
569 So. 2d 131 (Louisiana Court of Appeal, 1990)

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Bluebook (online)
168 So. 3d 768, 2015 La. App. LEXIS 262, 2015 WL 629436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perry-lactapp-2015.