State of Louisiana v. Michael D. West

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-793

STATE OF LOUISIANA

VERSUS

MICHAEL D. WEST

************

APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT,
PARISH OF VERNON, NO. 65,370,
HONORABLE LESTER P. KEES, DISTRICT JUDGE

************

MICHAEL G. SULLIVAN
JUDGE

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Court composed of Jimmie C. Peters, Michael G. Sullivan, and John B. Scofield,*
Judges.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS
AMENDED; AND REMANDED WITH INSTRUCTIONS.
MOTION TO WITHDRAW GRANTED.

William E. Tilley
District Attorney
Post Office Box 1188
Leesville, Louisiana 71496-1188
(337) 239-2008
Counsel for:
State of Louisiana

*
John B. Scofield participated in this decision by appointment of the Louisiana Supreme
Court as Judge Pro Tempore.

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602-1641
(337) 491-0570
Counsel for Defendant/Appellant:
Michael D. West

SULLIVAN, Judge.

Defendant, Michael D. West, was charged by bill of information with two

counts of attempted second degree murder, one count of aggravated battery, and four

counts of aggravated assault with a firearm. On April 8, 2004, he pled guilty to the

reduced charges of aggravated battery and second degree battery. As part of a plea

agreement, the State agreed to dismiss the remaining charges and agreed not to

initiate habitual offender proceedings. On May 5, 2004, Defendant was sentenced to

eight years at hard labor for aggravated battery and five years at hard labor for second

degree battery, with two years of the five-year sentence to run consecutively to the

eight-year sentence. Defendant was ordered to pay restitution in the amount of

$102,512.97 to Brandon Walker and $1,500.00 to Kevin Veneralla at the rate of

$200.00 a month.

Facts

The factual basis provided by the State for the two offenses to which Defendant

pled indicates that on October 4, 2003, Defendant entered a hunting camp near the

Pitkin/Cravens community, where he shot one victim and hit another victim in the

head with the butt of the shotgun.

Errors Patent

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals for

errors patent on the face of the record. Our review of the record reveals one error

patent.

As part of his sentences, Defendant was ordered to pay restitution to Brandon

Walker in the amount of $102,512.97 and to Kevin Veneralla in the amount of

$1,500.00 “at the sum of $200.00 a month.” We find the portion of the sentence

setting monthly payments in the amount of $200.00 per month to be illegal. Added

by 1999 La.Acts No. 783, effective January 1, 2000, La.Code Crim.P. art. 883.2

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.

Although monthly installments are permitted when restitution is imposed as a

condition of probation pursuant to La.Code Crim.P. art. 895.1(A)(1), we are not

aware of any authority allowing for monthly installment payments of restitution

imposed pursuant to Article 883.2. Further, we note that Act 783 also amended

La.Code Crim.P. art. 886 to provide for the collection of restitution to the victim by

civil process. Thus, we vacate that portion of the sentence requiring monthly

payments of $200.00 as illegal. The trial court is instructed to amend the commitment

entry and the sentencing minutes to reflect this change.

Motion to Withdraw

Defense counsel has filed a motion to withdraw as counsel of record, alleging

that he can find no errors on appeal that would support reversal of Defendant’s

conviction.

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth

circuit set forth the appropriate procedures for an appellate court to analyze a brief

filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967):

When appointed counsel has filed a brief indicating that no non-
frivolous issues and no ruling arguably supporting an appeal were found
after a conscientious review of the record, Anders requires that counsel
move to withdraw. This motion will not be acted on until this court
performs a thorough independent review of the record after providing
the appellant an opportunity to file a brief in his or her own behalf. This
court’s review of the record will consist of (1) a review of the bill of
information or indictment to insure the defendant was properly charged;

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(2) a review of all minute entries to insure the defendant was present at
all crucial stages of the proceedings, the jury composition and verdict
were correct and the sentence is legal; (3) a review of all pleadings in
the record; (4) a review of the jury sheets; and (5) a review of all
transcripts to determine if any ruling provides an arguable basis for
appeal.

This court has performed an independent review of the record, finding that

Defendant was properly charged by a signed bill of information, was present and

represented by counsel at all crucial stages of the proceedings, and entered a free and

voluntary guilty plea after being properly advised of his rights in accordance with

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). Additionally, Defendant

received legal sentences, other than the monthly payment for restitution discussed

above. After reviewing the record, we find no issues that would arguably support an

assignment of error on appeal.

Decree

Defendant’s convictions are affirmed. That portion of Defendant’s sentences

requiring monthly payments of $200.00 in restitution is vacated, and the case is

remanded with instructions that the trial court amend the commitment entry and

sentencing minutes to reflect this change. Defendant’s sentences are affirmed, as

amended. Counsel’s motion to withdraw is granted.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS
AMENDED; AND REMANDED WITH INSTRUCTIONS.

MOTION TO WITHDRAW GRANTED.

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KA04-793

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

VERSUS

MICHAEL D. WEST

On Appeal from the Thirtieth Judicial District Court, Parish of Vernon, State
of Louisiana, Honorable Lester P. Kees, Judge.

ORDER

After consideration of defense counsel’s request to withdraw as counsel and
the appeal presently pending in the above-captioned matter,

IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is
granted.

THUS DONE AND SIGNED this day of ____________________, 2004.

COURT OF APPEAL, THIRD CIRCUIT

_______________________________
Judge Jimmie C. Peters

________________________________
Judge Michael G. Sullivan

________________________________
Judge John B. Scofield

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