State of Louisiana v. Albert Stevens, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-818

STATE OF LOUISIANA

VERSUS

ALBERT STEVENS, JR.
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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 10426-93
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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EN BANC

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John
D. Saunders, Oswald A. Decuir, Jimmie C. Peters, Marc T. Amy, Michael G.
Sullivan, Glenn B. Gremillion, Elizabeth A. Pickett, Billy H. Ezell, J. David Painter,
and James T. Genovese, Judges.

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

John F. DeRosier
District Attorney, 14th Judicial District
P. O. Box 3206
Lake Charles, LA 70602-3206
Counsel for Appellee:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
Counsel for Defendant-Appellant:
Albert Stevens, Jr.

Albert Stevens, Jr.
1702 Harless Street
Lake Charles, LA 70601
Pro Se

Painter, Judge.

Defendant, Albert Stevens, Jr., appeals the sentence imposed in connection

with his conviction on three counts of simple robbery. Appellant’s counsel on appeal

has filed a motion to withdraw as counsel of record for Defendant pursuant to the

procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). For

the following reasons, we affirm Defendant’s sentence and grant the motion to

withdraw. However, we remand this matter to the trial court with instructions to

impose a payment plan for the fine, court costs, and restitution while Defendant is

present.

FACTS

Defendant was accused of having robbed the clerks at various convenience

stores in Calcasieu Parish on June 10, 28, and 29, 1993, while armed with weapons

including a knife, a pair of scissors, and a box cutter. In August 1993, he was

charged by bill of information with three counts of armed robbery pursuant to La.R.S.

14:64. He pled not guilty to those charges. Defendant failed to appear for trial on

June 26, 1995, and a bench warrant was issued. Defendant was apprehended in

Mississippi and sent back to face trial. The State, on June 21, 2005, amended the bill

of information to reflect three counts of simple robbery. Defendant pled guilty to all

counts. He was sentenced to six years hard labor on each count, with all the

sentences to run concurrently. Four years of each sentence was suspended, and the

trial court ordered Defendant to be placed on four years supervised probation upon

his release from prison. Defendant appeals.

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DISCUSSION

Error Patent Review

After reviewing the record for errors patent pursuant to La.Code Crim.P. art.

920, we find two items involving special conditions of probation which this court has

previously deemed errors patent. However, upon reconsideration, we now find the

trial court’s handling of these matters to be correct.

Along with other conditions of probation, the trial court imposed the following

special conditions:

1) $125.00 restitution to Mr. Levine to be paid over the duration of the
supervised probation.

2) A $1,000.00 fine and court costs on each count, to be paid over the
period of probation on a schedule worked out by Probation and Parole
and approved by the Court before implementation.

3) A $150.00 reimbursement to the Indigent Defender Board to be
spread out over the 48 months of supervised probation.

This court has previously held that similar provisions as to payment are not

acceptable and that the trial court must announce the payment plan in ordering

payment over a term. See State v. Brack, 99-1103 (La.App. 3 Cir. 3/1/00), 758 So.2d

310; State v. Thomas, 05-1051 (La.App. 3 Cir. 3/1/06), 924 So. 2d 1146; State v.

Moore, 595 So.2d 334 (La.App. 3 Cir. 1992). According to the version of La.Code

Crim.P. art. 895.1(A) in effect in 1993 when the offenses were committed, the

restitution payment “shall be made, in the discretion of the court, either in a lump sum

or in monthly installments based on the earning capacity and assets of the defendant.”

(Emphasis added.) Further, because these conditions of probation are a part of

Defendant’s sentences, the payment plan must be imposed in Defendant’s presence.

La.Code Crim.P. art. 835.

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Upon reconsideration, we find nothing in the statute which prohibits the trial

court from seeking assistance from outside sources, including Probation and Parole,

in formulating the appropriate payment plan. In fact, Probation and Parole may be

in a better position to formulate a workable payment schedule than is the trial court.

In taking advantage of this assistance, the trial court in no way cedes its responsibility

to impose the payment plan, and it only becomes effective upon approval of the trial

court. Therefore, we overrule this court’s previous decision in State v. Brack, 758

So.2d 310.

Therefore, we find no error in the trial court’s ruling as to the payment of fines

and court costs. However, the trial court ordered Defendant to pay the restitution

“over the duration of the supervised probation” and to reimburse the Indigent

Defender Board “over the 48 months of supervised probation.” These provisions are

inadequate in that they do not either provide the monthly payment schedule with

which the Defendant is to comply or provide for a payment plan to be formulated by

Probation and Parole and approved by the trial court. Accordingly, we remand the

case to the trial court with the instruction that the court impose a payment plan for

restitution and for payment of the Indigent Defender Board which comply with the

requirements of La.Code Crim.P. art. 895.1(A) and this opinion. We reiterate that

either or both of these plans may be determined by the trial court or formulated by

Probation and Parole and approved by the trial court.

Anders Review

Defendant’s counsel has filed a brief stating that he could find no error on

appeal that would support reversal of Defendant’s sentence. Consequently, counsel

seeks to withdraw.

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Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967) and State

v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990), this court has reviewed the record

thoroughly, including pleadings, minute entries, the charging instrument, and the

transcripts. Defendant was properly charged in a 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 pursuant to Boykin v.

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

legal sentences. We find no issues which would support an assignment of error on

appeal. Therefore, Defendant’s appellate counsel’s motion to withdraw is granted.

Sentence

In his pro se assignment of error, Defendant contends that the trial court erred

in sentencing him to a term of imprisonment disproportionate to the crimes.

The record indicates that Defendant did not file a motion to reconsider sentence

as mandated 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 ground 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).” State v. Theriot, 04-897, p. 8 (La.App. 3 Cir.

2/9/05), 893 So.2d 1016, 1021. Because Defendant failed to file the required motion,

this court will conduct a bare excessive sentence review.

In State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959,
cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996), the
supreme court held that when a defendant claims a sentence is excessive
“[t]he only relevant question on review . . . [is] ‘whether the trial court
abused its broad sentencing discretion, not whether another sentence
might have been more appropriate.’ State v. Humphrey, 445 So.2d
1155, 1165 (La.1984).”

State v. Robinson, 05-633, p. 8 (La.App. 3 Cir. 12/30/05), 918 So.2d 1151, 1156.

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Defendant pled guilty to three counts of simple robbery. “Whoever commits

the crime of simple robbery shall be fined not more than three thousand dollars,

imprisoned with or without hard labor for not more than seven years, or both.”

La.R.S. 14:65. Defendant was sentenced to serve six years at hard labor on each

count with all sentences to run concurrently. However, the trial court suspended four

years of each sentence and ordered that Defendant be placed on four years of

supervised probation upon being released from prison.

Defendant asserts that he committed the offenses at issue because he was

addicted to drugs. Additionally, he explains that during the ten years he was “absent

from authorities,” he married, had children, maintained gainful employment, and led

a crime free life. Defendant argues that incarceration is inappropriate and

disproportionate considering his life changing circumstances.

The offenses to which Defendant pled guilty inadequately describe the entire

course of his conduct. Because he used weapons during each of the three offenses,

under the armed robbery statute, he could have been given a sentence ranging from

ten to ninety-nine years for each offense.

In State v. Lanclos, 419 So.2d 475, 478 (La.1982), the supreme court stated

that:

[W]here the offense to which the defendant has pled guilty inadequately
describes his conduct, we find no abuse of the trial court’s great
discretion in imposing the maximum sentence possible for the crime to
which the guilty plea is entered. This is particularly true where a
significant reduction in potential exposure to imprisonment has been
obtained through plea bargaining, and the offense involves violence to
the victim.

Additionally, Defendant’s sentences were ordered to run concurrently to each

other even though the offenses occurred on different days and involved different

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victims. The sentences could have been ordered to be served consecutively to each

other, which would have exposed Defendant to possible imprisonment for over

twenty-one years. The sentences were also ordered to run concurrently with a

sentence imposed for an additional count of simple robbery in another docket number.

Considered in this light, Defendant benefitted greatly by the amendment of the bill

of information and the fact that his sentences were ordered to run concurrently. See

State v. Spencer, 04-857 (La.App. 3 Cir. 12/8/04), 888 So.2d 1128.

Given the nature of the underlying convictions, there is no indication that the

sentences imposed are a purposeless imposition of pain and suffering or that they are

grossly disproportionate to the crimes committed. Therefore, we find no error in the

sentences imposed.

CONCLUSION

Defendant’s sentences are affirmed. Counsel’s motion to withdraw is granted.

We remand the case to the trial court with the instruction that the court impose a

payment plan for restitution and for payment of the Indigent Defender Board which

complies with the requirements of La.Code Crim.P. art. 895.1(A) and this opinion.

We reiterate that the plan may either be determined by the trial court or be

formulated by Probation and Parole and approved by the trial court.

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

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06-818

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA
Appellee

VERSUS

ALBERT STEVENS, JR.
Defendant-Appellant

On Appeal from the Fourteenth Judicial District Court Parish of Calcasieu, Honorable
G. Michael Canaday, 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 January, 2007.

_______________________________
Judge Ulysses Gene Thibodeaux

_______________________________
Judge Sylvia R. Cooks

_______________________________
Judge John D. Saunders

_______________________________
Judge Oswald A. Decuir

_______________________________
Judge Jimmie C. Peters

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_______________________________
Judge Marc T. Amy

_______________________________
Judge Michael G. Sullivan

_______________________________
Judge Glenn B. Gremillion

_________________________________
Judge Elizabeth A. Pickett

_______________________________
Judge Billy H. Ezell

_________________________________
Judge J. David Painter

_______________________________
Judge James T. Genovese

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