State of Louisiana v. Kevin Theriot

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-897 consolidated with 04-898

STATE OF L0UISIANA

VERSUS

KEVIN THERIOT

**************
APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT, NO. 02-923/02-1543
PARISH OF IBERIA
HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

***************
SYLVIA R. COOKS
JUDGE
***************

AFFIRMED AND REMANDED.

Court composed of Sylvia R. Cooks, Jimmie C. Peters, and J. David Painter, Judges.

Edward K. Bauman
Louisiana Appellate Project
P.O. Box 1641
Lake Charles, Louisiana 70602
(337) 491-0570
COUNSEL FOR APPELLANT:
Kevin Theriot

Walter J. Senette, Jr.
Assistant District Attorney
St. Mary Parish Courthouse
Franklin, Louisiana 70538
(337) 828-4100, Ext. 550
COUNSEL FOR APPELLEE:
State of Louisiana

COOKS, Judge.

STATEMENT OF THE CASE

On June 27, 2002, the Defendant, Kevin Theriot, was charged by a bill of

information with production and manufacture of a schedule II controlled dangerous

substance, namely methamphetamine, in violation of La.R.S. 40:967(A)(1); theft of

goods over $500.00, in violation of La.R.S. 14:67; possession of a schedule IV

controlled dangerous substance, namely diazepam, in violation of La.R.S. 40:969(C);

and reckless handling of hazardous materials, in violation of La.R.S. 32:1518. The

Defendant was arraigned on July 7, 2002 and entered pleas of not guilty to the

charges.

On October 1, 2002, the Defendant was charged by a bill of information with

conspiracy to produce and manufacture a schedule II controlled dangerous substance,

namely methamphetamine, in violation of La.R.S. 40:967(A)(1) and La.R.S. 14:26

and with reckless handling of hazardous materials, in violation of La.R.S. 32:1518.

The Defendant entered pleas of not guilty to the charges.

On February 5, 2004, the Defendant changed his pleas of not guilty to pleas of

guilty pursuant to a plea bargain with the State. The State agreed to dismiss the

charges of theft, possession of diazepam and reckless handling of hazardous materials

from the first bill of information and agreed to dismiss the charge of reckless handling

of hazardous materials from the second bill of information. Pursuant to the plea

bargain, the Defendant pled guilty to two counts of attempted production and

manufacture of methamphetamine.1

On March 26, 2004, the Defendant was sentenced to fourteen years at hard

labor on each count with all but seven years suspended with each sentence to run

1
The bill of information was never amended to show the charges to which the
Defendant actually pled; however, see the error patent section for further discussion.

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concurrently with the other sentence. The trial court further ordered the Defendant

be placed on three years probation with the following specific conditions: (1) he

report to his probation officer within ten days of his release from prison; (2) he pay

$60.00 per month supervision fee, a fine of $5,000.00 and the cost of prosecution in

the amount of $250.00; (3) he will not use any alcohol or drugs during the time of his

probation; and (4) he not frequent any bar or casino during the period of his

probation. At sentencing, the Defendant’s trial counsel made an oral motion to

reconsider the sentence, which was denied.

The pleas and sentencing under each lower court docket number were

conducted jointly in the lower court and were part of the same plea agreement. The

two appeals lodged with this court were consolidated. The Defendant is now before

this court alleging the sentence imposed was excessive. For the reasons assigned

below, we affirm the sentence of the Defendant but remand for the trial court to

establish a payment plan for the fine and costs ordered as conditions of probation.

STATEMENT OF THE FACTS

The facts indicate the Defendant, Kevin Theriot, was a truck driver employed

by Lynn Romero. He began using methamphetamine, and when the habit became too

expensive, he began stealing from farmers for the purpose of manufacturing the drug.

The Louisiana State Police obtained information from area farmers they were being

burglarized at night and their anhydrous ammonia tanks were being tapped for

anhydrous ammonia. The officers conducted surveillance and noticed that there was

a light near the anhydrous ammonia tank of a farm. When they approached the scene,

the Defendant along with Corey Duhon, fled. The Defendant was subsequently

located and was found to be in possession of a rubber hose and a propane tank used

in the theft. The Defendant’s residence was subsequently searched, where the

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officers located additional items used in the manufacture and processing of

methamphetamine. He was arrested and mirandized and confessed to the thefts and

to manufacturing methamphetamine.

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 the

following errors. First, in docket number 04-898, the Defendant pled guilty to a

nonresponsive offense. The Defendant was originally charged with conspiracy to

produce and manufacture methamphetamine and pled guilty to attempted

manufacturing of methamphetamine. According to La.Code Crim.P. art. 814(A)(57),

the only responsive verdicts to a charge of conspiracy to violate any provision of the

uniform controlled dangerous substances law are guilty and not guilty. Thus,

attempted manufacturing of methamphetamine is not a responsive offense to

conspiracy to manufacture methamphetamine. At the guilty plea proceeding, the trial

court stated that the bill of information would be amended to attempted

manufacturing of methamphetamine. The bill of information contained in the record,

however, does not indicate that the charge of conspiracy to produce and manufacture

methamphetamine was amended to attempted manufacturing of methamphetamine.

Thus, the Defendant pled guilty to a crime that was not responsive to the offense

charged in the bill of information.

This court was faced with a similar issue in State v. Collins, 03-388 (La.App.

3 Cir. 10/8/03), 865 So.2d 117. This court addressed the issue as follows:

In State v. Charles, 02-0443 (La.App. 3 Cir. 10/2/02), 827 So.2d
553, writ denied, 02-2707 (La.3/28/03), 840 So.2d 569, the defendant
was charged with distribution of cocaine, but pled guilty to an amended
charge of possession with the intent to distribute cocaine, which this
court found was a nonresponsive offense. See also State v. Starks, 615
So.2d 943 (La.App. 1 Cir.1993). Defendant, thus, pled guilty to a

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nonresponsive offense; and this court found it was an error for the State
not to amend the bill of information. See La.Code Crim.P. art. 814.

In State v. Richard, 99-1078 (La.App. 3 Cir. 12/27/00), 779 So.2d
927, this court recognized as error patent the defendant’s plea to a
nonresponsive crime. In addressing the error, we stated:

According to this court in State v. Price, [461 So.2d 503
(La.App. 3 Cir.1984)] the State should have amended the
bill of information to reflect the Defendant’s plea to the
nonresponsive offense, which the State did not do in the
instant case. However, later, in State v. Rito, [96-1444
(La.App. 3 Cir. 10/8/97), 700 So.2d 1169] this court stated
that, neither a statute, nor the constitution required the
prosecution to amend the bill of information before a
defendant can plead guilty to a nonresponsive crime. The
court stated:

It is well settled that a defendant may
plead guilty to a crime nonresponsive to the
original indictment as long as the district
attorney accepts it. La.Code Crim.P. art.
487(B) and State v. Price, 461 So.2d 503
(La.App. 3 Cir.1984). Further, the state is not
constitutionally or statutorily required to
amend the information before the defendant
can plead to a nonresponsive offense. Price,
461 So.2d 503 (Knoll, J., dissenting).

Nevertheless, the court went on to decide whether the
state’s failure to amend the bill of information was
harmless or reversible error. The court found the first
circuit’s opinion in State v. Barclay, [591 So.2d 1178
(La.App. 1 Cir.1991), writ denied, 595 So.2d 653
(La.1992)] to be dispositive of the issue. Discussing
Barclay, the court stated:

In that case, the defendant was charged by
grand jury indictment with aggravated rape
but pled guilty to conspiracy to commit
aggravated rape. The court espoused the
following harmless error principle to uphold
the conviction and sentence despite the state’s
failure to formally amend the bill of
information:

[W]here ... the defendant enters a plea of
guilty to a crime nonresponsive to the original
indictment when such plea is acceptable to the
district attorney, the defendant is fully aware

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of the charge to which he pleaded as shown
by extensive Boykinization, and the plea is
not prejudicial to the defendant, any error
caused by a failure to formally amend the
indictment is harmless.

....

In Rito, the court distinguished State v. Cook, [372 So.2d 1202
(La.1979)] which found reversible error in the state’s failure to amend
the bill of information. This court stated:

We are able to distinguish the Supreme Court case from the
instant case because in the former case, the nonresponsive
crime to which that defendant pled (simple burglary of an
inhabited dwelling) was more serious than the offense he
was originally charged with (simple burglary). As a result,
the Supreme Court found a flaw, justifying reversal in that
case. In contrast, the crime that defendant pled guilty to in
this case was less serious than that originally charged with,
and the resulting sentence imposed was more favorable to
the defendant in this instance.

Id. at 929-930 (Footnotes omitted).

Possession with the intent to distribute cocaine and distribution
of cocaine are contained in the same statute and carry the same penalty.
Our examination of the record reveals the Barclay factors were met.
The State accepted Defendant’s plea, and thoroughly Boykinized
Defendant. The trial court stated Defendant was pleading guilty to
distribution of cocaine and explained the nature of that offense as well
as its penalty range. When asked if he understood what he was pleading
guilty to and the penalty range, Defendant replied “Yes, sir.” Defendant
also benefitted from his plea in that one charge was dismissed, no
habitual offender bill was filed and at least one-half of his sentence was
to run concurrent with a sentence he was then serving. He also received
a mid-range sentence of sixteen years. Facing the possibility of a
$50,000.00 fine, he was ordered to pay only $1,500.00. Thus,
Defendant clearly was not prejudiced and the error is harmless.

Id. at pp. 118-120.

Likewise, in this case, we find any error resulting from the Defendant’s plea

to a nonresponsive offense is harmless. The plea was acceptable to the district

attorney, and the record indicates the Defendant was extensively Boykinized and

advised of the penalty range for the crimes to which he was pleading. The trial court

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explained that the original charge of conspiracy to manufacture was going to be

amended to attempted manufacturing of methamphetamine, and the Defendant stated

that he understood that fact. The Defendant also stated he understood what attempt

meant after the trial court explained the elements of attempt. Additionally, the

Defendant was not prejudiced by the plea in that he faced the same term of

imprisonment for attempted manufacturing of methamphetamine as he would have

for the originally charged offense. The Defendant benefitted from the entire plea

agreement in that other charges were dismissed and the trial court agreed to order the

Defendant’s sentences to run concurrently. Thus, we find any error is harmless.

Second, the trial court failed to establish a payment plan for the $5,000.00 fine

and court costs ordered as a condition of probation as well as the $250.00 cost of

prosecution ordered as a condition of probation. This court has found error patent

when the trial court fails to establish a payment plan for fees ordered as conditions

of probation. See State v. Reynolds, 99-1847 (La.App. 3 Cir. 6/7/00), 772 So.2d 128;

State v. Fontenot, 01-0540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255. We find the

case must be remanded, and the trial court is instructed to establish a payment plan

for the fine and costs ordered as conditions of probation.

Third, the minutes of sentencing are in need of correction. The minutes

indicate that one of the counts to which the Defendant pled was “Attempted

Conspiracy to Produce & Manufacture Schedule II.” The Defendant did not plead

guilty to an “attempted conspiracy.” Rather, he pled guilty to two counts of attempted

manufacturing of methamphetamine. Thus, the minutes of sentencing should be

amended accordingly.

ASSIGNMENT OF ERROR NUMBER ONE

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As his sole assignment of error, the Defendant claims that the trial court erred

in imposing a constitutionally excessive sentence. The record indicates the Defendant

did not file a Motion to Reconsider Sentence as required by La.Code Crim.P. art.

881.1. Under Article 881.1, a defendant must file a motion to reconsider the sentence

setting forth the specific grounds upon which the motion is based in order to raise an

excessive sentence claim on appeal. State v. Mims, 619 So.2d 1059 (La.1993). In the

present case, the Defendant merely stated at sentencing, “Your Honor, we’d move for

reconsideration of sentence.” With regard to oral objections to sentencing, this court

has held:

In cases where courts have held that an oral objection alone is sufficient
to preserve the issue for review, the oral objection contained the basis
for the motion, such as excessiveness of sentence. See State v. Caldwell,
620 So.2d 859 (La.1993); State v. Trahan, 98-1442 (La.App. 4 Cir.
12/1/99), 752 So.2d 921. [State v. Trahan was reversed on other
grounds. See State v. Trahan, 99-3470 (La.10/5/01), 797 So.2d 38.]
Therefore, since Defendant’s oral motion did not set forth any specific
grounds to support his claim of excessive sentences, we are relegated to
a bare claim of excessiveness. State v. Mims, 619 So.2d 1059 (La.1993),
after remand, 626 So.2d 856 (La.App. 2 Cir.1993), writ denied, 93-2933
(La.2/11/94), 634 So.2d 373.

State v. Barling, 00-1241, p. 11 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1041-42,

writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

Since the Defendant did not allege any specific ground for excessiveness, we

will conduct a bare excessive sentence review.

This court has set forth the following standard to be used in reviewing

excessive sentence claims:

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 imposition of sentence within the statutory limits and
such sentence shall not be set aside as excessive absent a manifest abuse

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of discretion. State v. Etienne, 99-192 [, p.5] (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 [, p. 3] (La.5/31/96); 674
So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539
(1996).

Barling, 779 So.2d at 1042-43.

In order to decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

[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,

03-0562 (La. 5/30/03), 845 So.2d 1061.

The Defendant pled guilty to two counts of attempted production and

manufacture of methamphetamine and was sentenced to fourteen years at hard labor

on each count to run concurrently, all but seven years was suspended, and the

Defendant was placed on three years probation with special conditions. When

sentencing the Defendant, the trial court stated:

All right. I have the criminal records check which was done by
Probation and Parole. I’ve reviewed that and considered that. I’d like
to file it in the record.

And the court has considered the following things with reference
to the sentencing of Mr. Theriot.

In this first bill of information, he was charged with offenses in
April 2002. Those offenses included four offenses: production and

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manufacture of methamphetamine; theft from Rebel Farms; possession
of a controlled dangerous substance, Diazepam; reckless handling of
hazardous materials. Subsequently, he was charged in a bill of
information, on - of acts of June 15, 2002, wherein he conspired to
produce and manufacture methamphetamine and reckless handling of
hazardous materials.

Mr. Theriot is 39 years of age, is a mature adult, and cannot use
youth or inexperience as an excuse for committing these crimes.

In the plea agreement for the April 2002 charges, he received a
reduction of charges from production and manufacture of
methamphetamine to attempted production and manufacture of
methamphetamine. This resulted in substantial benefit to him. It
reduced his sentencing exposure from a maximum of 30 years to a
maximum of fifteen years. So he’s already received the benefit of a
possible reduction of fifteen years of sentence. The other three charges,
theft of Rebel Farms, possession of Diazepam, and reckless handling of
hazardous materials, were dismissed. He’s received the benefit of that.

For the June 15, 2002 charge of conspiracy to produce and
manufacture methamphetamine, the plea bargain reduced that to
attempted production and manufacture of methamphetamine. He
received the benefit of exposure reduced from 30 years maximum to
fifteen years maximum. Obviously, he’s received a substantial benefit
already in that plea bargain.

In the April 2002 charges, Mr. Theriot was stopped when he was
driving an eighteen-wheeler by the sheriff’s office. He was found to be
in possession of several boxes of pseudophedadrine, which is a
substance used to make methamphetamine. He gave consent to search
his residence, where the officers located additional items used in the
manufacturing and processing of methamphetamine. After being
Mirandized, he admitted he was in fact manufacturing and selling
methamphetamine and he was stealing anhydrous ammonia from farmers
for the purpose of manufacturing methamphetamine.

In the June 2002 incident, agents of the Louisiana State Police
were given information by certain farmers that they were being
burglarized at night and their anhydrous ammonia tanks were being
tapped for anhydrous ammonia. The officers conducted surveillance and
saw a light near the anhydrous ammonia tank on a farm. They moved
in, and Mr. Theriot along with another person fled from the scene on
four-wheelers. Later Mr. Theriot was located and found to be in
possession of a rubber hose and a propane tank which he was trying to
utilize to steal anhydrous ammonia for the manufacture of
methamphetamine.

These facts were stated at Mr. Theriot’s plea, and he admitted that
all of this was true.

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We are responsible as individuals and as citizens for what we do.
Most people - most people sitting here today and most people in our
communities don’t commit crimes. Most people to not manufacture a
dangerous drug. Most people do not sell drugs. People choose to be
criminals, choose to commit crimes. They choose to commit crimes
because either they find that they enjoy the excitement, they like the
money, or they get high with the danger. And then when they’re caught,
after they decide to be criminals and get involved in criminal activities,
they don’t want to be responsible for what they do. That’s only natural.
Nobody wants to go to jail. Nobody wants to be responsible for their
bad acts. But as a society, we have a law of rules. If we didn’t have
those rules, you wouldn’t be able to walk out of this courthouse;
everybody would be standing there trying to sell you drugs and sell them
to your kids. And everybody in society would be addicted to drugs, and
everybody would be harmed by it.

We need to consider also when we consider the sentence for
someone involved in manufacturing and selling dangerous drugs such
as methamphetamine of all the harm that Mr. Theriot has caused to the
individuals that he sold the drugs to. Of course, those people have
decided to be criminals too, or they are addicted and they can’t help
themselves. But at any rate, he had brought them drugs, and a
substantial amount of suffering has been undergone by those people who
are addicted to drugs and their families because they get drugs or got
drugs from Mr. Theriot to feed their addiction so that they couldn’t
support their family and that they were engaged in criminal activities.
So you can see that it does not involve just Mr. Theriot and his
immediate family. The community is seriously affected by people who
manufacture and sell drugs.

In Mr. Theriot’s case additionally, he didn’t need to be involved
in drug activities for the money, because he had a great job. He made
substantial money. So why he chose to - you know, I can understand -
we can all understand how people get addicted to drugs. And addiction
is, we know today, a sickness and a weakness and it’s biological, it’s
physiological. It affects your brain, it affects your body. It’s not just
something that you can control. So people do get addicted, and we
understand that and we try to help people get treated for that. But far
away from being addicted to drugs are the people who manufacture the
drugs and sell the drugs to all of these poor people who are addicted.
And there’s no reason for somebody, even if they’re addicted to drugs,
to have to sell drugs to other people in the community and to have to
establish an operation for the production of drugs in our community.
And the reason we are serious about it and the reason there are serious
consequences to it is because it’s a devastation to the people in the
community who suffer as a result of the addictions and their families and
society, because we have to take care of all those people, we have to
treat all those people. They can’t work. They have all kind of problems.
Their families suffer. So it’s not just a small thing; it’s a gigantic thing.
And today in our society, it’s a monumental problem.

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So I consider those things in this matter as regard to Mr. Theriot
as to why I’m going to impose the sentence that I impose.

I also of course take into consideration the fact that he has a wife
and a family and that they need him and that they are dependent upon
him for support. He knew that before he got in the business of
manufacturing and selling drugs. Nobody had to tell him that his family
needed him. But he chose instead to go into criminal activity instead of
being responsible to his family. And now of course he doesn’t want to
go to jail so he can take care of his family. But he has put himself in
that position. Society didn’t put him there. His family didn’t put him
there. His employer didn’t put him there. The district attorney didn’t
put him there. And I didn’t put him there. Mr. Theriot placed himself
where he sits today in activities which for no reason that I can
comprehend he engaged in, because he had everything he could ask for
as a productive member of society. He had a family, he had a good job,
he had children. So he didn’t need to do what he did except - unless he
wanted to be a criminal or liked those kinds of activities.

In addition to those things, of course wherever there are places
that are manufacturing methamphetamine, those chemicals are
dangerous. It’s costing our society a great deal of money and danger to
the police officers to have to clean up these lab sites.

In addition to that, many of the victims who use this type of drug
suffer injury more than just addiction. They suffer some brain injury,
they suffer some bodily injury, because these things cannot be
manufactured with the preciseness that drugs should be manufactured.
And as a result, many people who take it suffer brain damage, they
suffer physical injuries from it. So that’s another danger and expense
that society has as a result of these activities.

These are the things that I consider today in sentencing Mr.
Theriot.

In addition to that, I feel that there is an undue risk that during any
period of suspended sentence or probation he would commit another
crime. Why do I say that? Because he committed one of these multiple
offenses in April and then he committed more multiple offenses in June.

He’s in need of correctional treatment which can be best satisfied
by incarceration.

A lesser sentence would deprecate the seriousness of these
charges.

In considering all these factors, Mr. Theriot, it’s the sentence of
this court, on each of the two charges that you have pled guilty to, on
each one, that you serve fourteen years at hard labor and those sentences
to be concurrent. I suspend all but seven years of each of those

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sentences and give you credit for time served. Upon your release from
jail, you will begin probation. Within ten days of your release from jail,
you will report to your probation officer; you’ll pay $60 a month
supervision fee; you’ll pay a fine of $ 5,000 and court costs; you’ll pay
cost of prosecution in the amount of $250; you will not use any alcohol
or drugs, and you will not be in any bar or casino during the period of
your probation.

....

Oh, I’m sorry. Probation is three years.

This court has held when the offense to which the defendant pled guilty does

not adequately describe his conduct, the trial court may take into consideration the

benefit the defendant obtained through the plea bargain. State v. Williams, 02-707,

(La.App. 3 Cir. 3/5/03), 839 So.2d 1095 (citing State v. Lanclos, 419 So.2d 475

(La.1982). This court further stated that the trial court should “particularly make such

considerations where the plea bargain results in a significant reduction in the

defendant’s potential exposure to imprisonment.” Id at 1101. (citing State v.

Robinson, 33,921 (La.App. 2 Cir. 11/1/00), 770 So.2d 868); State v. Waguespack, 589

So.2d 1079 (La.App. 1 Cir. 1991), writ denied, 596 So.2d 209 (La.1992).

In this case the State agreed to dismiss four additional charges including, theft,

which carried a maximum penalty of ten years imprisonment; possession of diazepam,

which carried a maximum penalty of five years imprisonment; and two counts of

reckless handling of hazardous materials which carried maximum sentences of ten

years each. The State also agreed to reduce one of the Defendant’s charges, resulting

in reduction of the sentencing range for one charge by one-half, and agreed to

recommend that the sentences run concurrently with one another. Furthermore,

although the Defendant received sentences near the maximum length of incarceration,

half of this period was suspended, and the Defendant received the benefit of

probation. Therefore, we find the Defendant received a great benefit by pleading

13

guilty to the amended charges. We find the trial court did not abuse its discretion and

the sentence is appropriate.

DECREE

Based on the foregoing review of the record, the Defendant’s sentence is

affirmed. The case is remanded and the trial court is instructed to establish a payment

plan for the fine and costs ordered as conditions of probation and to amend the

minutes of sentencing to correctly reflect the offenses to which the Defendant pled.

AFFIRMED AND REMANDED.

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