State of Louisiana v. Fay v. Perez, III

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-229
consolidated with 07-230, 07-231, 07-232,
07-233, 07-234, 07-235, 07-236, 07-237, and 07-238

STATE OF LOUISIANA

VERSUS

FAY PEREZ, III

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT,
PARISH OF VERMILION, NO. 41543,
HONORABLE BYRON HEBERT, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Michael G. Sullivan, Judges.

REMANDED WITH INSTRUCTIONS.

Michael Harson
District Attorney
Ted L. Ayo
Assistant District Attorney
Post Office Box 175
Abbeville, Louisiana 70511-0175
(337) 898-4320
Counsel for:
State of Louisiana

Mark O. Foster
Louisiana Appellate Project
Post Office Box 2057
Natchitoches, Louisiana 71457-2057
(318) 572-5693
Counsel for Defendant/Appellant:
Fay V. Perez, III

SULLIVAN, Judge.

This matter is before us again after remand to the trial court for an evidentiary

hearing on the terms of a plea agreement, which required Defendant to pay restitution

to victims of criminal offenses that he committed but to which he did not plead guilty.

Background and Discussion

Our original opinion set forth the background and facts of this matter as

follows:

Defendant, Fay V. Perez, III, originally faced over sixty counts of
aggravated criminal damage to property, violations of La.R.S. 14:55.
Pursuant to a plea agreement, Defendant pleaded guilty to ten counts,
and the State moved to dismiss the remaining counts. In accordance
with State v. Crosby, 338 So.2d 584 (La.1976), Defendant reserved his
right to appeal the issue of payment of restitution to the victims’
insurance companies, should that condition be made part of his sentence.

Defendant was subsequently sentenced in docket number 41543
to five years at hard labor, suspended. The trial court ordered that
Defendant be placed on supervised probation for five years, with the
condition that he perform 150 hours of community service per year for
five years. This condition applied to only this sentence. In accordance
with the plea agreement, Defendant was further ordered to make
restitution at the rate of not less than $181.35 per month for 119 months,
which was an aggregate amount covering all the victims, including those
in the dismissed charges. This condition of probation was imposed for
all ten sentences.

In docket number 41544, Defendant was sentenced to five years
at hard labor, suspended, with Defendant being placed on supervised
probation for five years, to run consecutively to the sentence imposed in
docket number 41543.

In docket number 41545, Defendant was sentenced to serve five
years at hard labor, suspended, with Defendant being placed on five
years of supervised probation, to run concurrently with the sentence
imposed in 41544, but consecutively to 41543, and with the same
conditions imposed in 41543. On each of the remaining docket
numbers, 41547, 41548, 41549, 41550, 41551, 41552 and 41553, the
trial court imposed a five-year sentence at hard labor, suspended, with
Defendant being placed on supervised probation for five years, to run
concurrently with docket number 41544. The trial court also imposed
general conditions of probation.

....

Facts

Because Defendant entered a guilty plea, the facts are taken from
the transcript of that proceeding. According to the transcript, during the
months of November and December of 2003, and January of 2004,
Defendant threw rocks or concrete at the victims’ properties, when it
was foreseeable that human life might be endangered.

State v. Perez, 06-436, pp. 1-2 (La.App. 3 Cir. 9/27/06), 939 So.2d 733, 734-35.

(Footnotes omitted).

Defendant appealed his sentences, claiming that he should not have been

ordered to pay restitution to insurance companies whose insureds were victims of his

criminal actions because the insurance companies are not “victims” for purposes of

La.Code Crim.P. art. 895.1. This assigned error was not addressed when this matter

was previously before this court because requiring a defendant to pay restitution to

victims of cases that were dismissed is patently erroneous, and we vacated that

provision of the plea agreement. Perez, 939 So.2d 733.

Noting that the general rules of contract law are usually considered in

determining the validity of a plea agreement, we vacated “the condition of probation

requiring Defendant to pay restitution for the aggregate damages suffered by all

victims and . . . remand[ed] the case for an evidentiary hearing to determine the nature

of the plea agreement and whether the entire agreement is invalidated by the vacation

of the restitution to victims of the offenses to which Defendant did not plead guilty.”

Id. at 736.

On remand, the trial court held an evidentiary hearing as ordered but failed to

determine whether the plea agreement was invalidated. During the hearing, the State

indicated that its intent with regard to the plea agreement was for Defendant to “make

full restitution . . . in all cases where he was the defendant.” Defendant

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acknowledged that he agreed to “pay full restitution to all individuals in those cases

that were dismissed” in exchange for not being made to plead guilty to all cases

pending against him.

Defendant has again appealed claiming, as he did in his original appeal, that

the trial court erred in ordering him to pay the victims’ insurance companies as part

of his restitution.

Errors Patent

The transcript of the evidentiary hearing establishes that the State’s consent to

Defendant’s plea agreement was predicated on his making restitution to all of his

victims, including victims whose cases were dismissed, and that Defendant’s consent

to the plea agreement was predicated on his not having to plead guilty to all cases in

which he was charged. In our previous opinion, we observed that invalidation of the

restitution order imposed on Defendant may invalidate the State’s consent to his plea

agreement if the State’s consent was predicated upon Defendant’s agreement to pay

restitution to victims of all cases pending against him.

Restitution to all victims of Defendant’s criminal actions was central to the

State’s agreement to Defendant’s plea. However, requiring restitution to victims of

dismissed cases is patently erroneous; therefore, we again remand the matter for the

trial court to determine whether the invalidation of the restitution order invalidated

the State’s agreement to Defendant’s plea.

Restitution to Insurers

We did not previously address Defendant’s assignment of error that the trial

court’s order for him to pay restitution to the insurers of Defendant’s victims whose

damages had been paid by their insurers because we vacated a portion of his sentence.

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Defendant urged this error during the evidentiary hearing on remand and again in this

appeal. Normally, we would pretermit consideration of this assignment of error, as

we did previously; however, we will address it in the interest of judicial efficiency.

Louisiana Code of Criminal Procedure Article 883.2 requires restitution to a

victim as part of a defendant’s sentence when there is “an actual pecuniary loss to

[the] victim.” Additionally, La.Code Crim.P. art. 895(7) provides for “reasonable

reparation or restitution to the aggrieved party for damage or loss” as a condition of

probation, and La.Code Crim.P. art. 895.1 provides for “the payment of restitution in

cases where the victim or his family has suffered any direct loss of actual cash, any

monetary loss pursuant to damage to or loss of property, or medical expense.”

(Emphasis added). In State v. Diaz, 615 So.2d 1336, 1337 (La.1993), the supreme

court addressed the payment of restitution, stating:

La.Code Crim.Proc. art. 895.1 A authorizes the court, when the
victim has suffered any “monetary loss or medical expense,” to order
payment of restitution “in a reasonable sum not to exceed the actual
pecuniary loss to the victim.” (emphasis added). La.Code Crim.Proc.
art. 895.1 B further authorizes the court to order payment “to the victim
to compensate him for his loss and inconvenience,” which amount may
be in addition to the amounts ordered under Article 895.1 A. These
articles focus primarily on restitution for pecuniary losses caused by the
criminal activity and not on providing criminal sanctions to enforce
collection of civil damages (including non-pecuniary damages). On
resentencing the judge should determine a specific (or determinable)
reasonable amount of restitution, and should order payment “either in a
lump sum or in monthly installments based on the earning capacity and
assets of the defendant.” La.Code Crim.Proc. art. 895.1 A.

In State v. Devare, 03-610, p. 6 (La.App. 5 Cir. 10/28/03), 860 So.2d 191, 195, the

trial court’s restitution order was vacated “because the caselaw and LSA-C.Cr.P. art.

895.1 indicate that restitution may be ordered only to compensate the victim, not the

victim’s insurance company.” For these reasons, Defendant should be ordered to pay

restitution to his victims only.

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Disposition

This matter is remanded to the trial court for another evidentiary hearing to

determine whether the State’s agreement to Defendant’s plea was invalidated by

vacation of the restitution to victims whose cases were dismissed. If the trial court

imposes restitution as a condition of probation, it is instructed not to order restitution

to a victim’s insurer and to establish a determinate, specified payment plan for all fees

and restitution amounts.

REMANDED WITH INSTRUCTIONS.

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