State of Louisiana v. John Joseph

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1567

STATE OF LOUISIANA

VERSUS

JOHN JOSEPH

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 03-K-4336-A
HONORABLE JAMES PAUL DOHERTY JR., DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and J. David Painter, Judges.

AFFIRMED.

Paula Corley Marx
Louisiana Appellate Project
Post Office Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
John Joseph

Earl B. Taylor
District Attorney
Twenty-Seventh Judicial District Court
Post Office Drawer 1968
Opelousas, LA 70571-1968
(337) 948-3041
COUNSEL FOR APPELLEE:
State of Louisiana

AMY, Judge.

Factual and Procedural Background

The defendant, John Joseph, pled guilty to two counts of armed robbery, in

violation of La.R.S. 14:64, and one count of aggravated burglary, in violation of

La.R.S. 14:60. On the armed robbery counts, he was sentenced to thirty years at hard

labor without the benefit of probation, parole, or suspension of sentence. For the

aggravated burglary charge, the defendant was sentenced to fifteen years at hard

labor. All sentences were ordered to run concurrently. The defendant was also

ordered to pay restitution. Upon the denial of his pro se motion to reconsider

sentence, the defendant appealed.

In State v. Joseph, 05-186 (La.App. 3 Cir. 11/2/05), 916 So.2d 378, this court

reversed the defendant’s conviction for the armed robbery of Irma Dartez because of

a double jeopardy violation.1 That sentence was vacated. The defendant’s other

sentences were vacated, as they were indeterminate, and the matter was remanded to

the trial court for a restitution hearing.

On April 5, 2006, the trial court resentenced the defendant to thirty years at

hard labor without the benefit of probation, parole, or suspension of sentence for

armed robbery and fifteen years at hard labor for aggravated burglary. The sentences

were ordered to run concurrently. A restitution hearing was set for May 5, 2006. An

oral motion for reconsideration of sentence was denied. The defendant appealed.

1
In Joseph, 916 So.2d at 379, the facts were stated as follows:

The defendant, along with a co-defendant, kicked down the front door and
entered the home of Irma Dartez. Once inside, the defendant took a gun from Ms.
Dartez, while the co-defendant struck another occupant of the home with a bottle of
bleach before taking money from her possession. At that point, the two left the
scene.

In an unpublished order bearing docket number 06-631 (La.App. 3 Cir.

8/8/06), this court remanded the matter to the trial court for a restitution hearing. At

the hearing held on March 2, 2007, the trial court ordered the defendant to pay

$4,050.00 in restitution. The defendant made an oral motion for appeal and an oral

motion to reconsider sentence. He lodged an appeal with this court.

In an unpublished order bearing docket number 07-439 (La.App. 3 Cir.

5/29/07), this court remanded the matter to the trial court for a ruling on the

defendant’s oral motion to reconsider sentence that was made at the restitution

hearing. Following a hearing on November 2, 2007, the defendant’s motion to

reconsider sentence was denied. The defendant has perfected this appeal, asserting

the following assignments of error:

I. The trial court erred in ordering restitution in the amount of $4,050.

II. The concurrent thirty and fifteen year sentence imposed make no
measurable contribution to acceptable goals of punishment and
are grossly out of proportion to the severity of the crime for this
young first offender.

III. The trial court failed to particularize the sentence to this offender.

For the following reasons, we affirm.

Discussion

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 no errors

patent.

Restitution

In his brief submitted to this court, the defendant argues that the order of

restitution should be vacated because his plea did not include any agreement to pay

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restitution for the money taken by his co-defendant and that the exact amount of

restitution was not proven. According to the defendant, there was no documentary

evidence to support the amount of restitution claimed by the victim. The defendant

notes that the victim told the Probation and Parole Officer that the amount taken was

$3,755.00 whereas at trial, she testified that the amount taken was $4,000.00 and then

$4,055.00. He contends that “[w]hen the court ordered restitution . . . , there was no

provision that he pay a proportionate share with his co-defendant nor was there any

credit given for payments made by [his co-defendant], who actually took the money.”

At the restitution hearing, the victim, Theresa Green (Green), testified that she

was robbed of “[a]pproximately four thousand” dollars. When asked for a more

accurate sum, Green stated that the amount taken was $4,055.00. Green testified that

the day before the robbery, she went to the bank to make withdrawals: “I think it was

from St. Landry Bank I withdrew thirty-eight hundred, and from Bank of Sunset, I

think it was like seven hundred.” She did not have any receipts to support her

testimony. Nevertheless, at the motion to reconsider sentence hearing, the trial court

did “not find that the four thousand, fifty-five dollars ordered [was] an unreasonable

amount in consideration [of] all of the factors in this case[.]”2 The defendant orally

moved for reconsideration of sentence without stating any grounds.

At the hearing on the motion to reconsider sentence, the defendant moved for

reconsideration on the basis that Green’s testimony at the restitution hearing was

contradictory to the statement she gave to the Probation and Parole Officer. The

defendant did not argue that he did not agree to pay restitution for the money taken

by his co-defendant, that he should pay a proportionate share of the restitution, that

2
We note that at the restitution hearing on March 2, 2007, the trial court ordered restitution
in the amount of $4,050.00.

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there was no provision that he be given credit for payments made by his co-defendant,

or that no documentary evidence was presented at the restitution hearing. Therefore,

these issues may not be asserted on appeal. See State v. Reynolds, 99-1847 (La.App.

3 Cir. 6/7/00), 772 So.2d 128. Accordingly, we will only address the defendant’s

claim that the exact amount of restitution owed was not proven.

The “trial court has vast discretion in sentencing decisions, including the

imposition of restitution.” State v. Thomas, 05-1051, p. 11 (La.App. 3 Cir. 3/1/06),

924 So.2d 1146, 1153. “The trial court’s decision in ordering restitution should not

be disturbed absent an abuse of discretion.” Id.

In State v. McDonald, 33,356 (La.App. 2 Cir. 6/21/00), 766 So.2d 591, the

defendant appealed an order of restitution in the amount of $15,000.00 because it was

more than the amount to which he pled, i.e., $3,900. In finding no abuse of discretion

in the trial court’s order of restitution, the second circuit explained:

Sources of information to which a sentencing court may look in
determining restitution include evidence usually excluded from the
courtroom at the trial of guilt or innocence, e.g., hearsay. State v. Myles,
94-0217 (La.6/3/94), 638 So.2d 218. The amount of $3,900, mentioned
by the district attorney during the guilty plea, was based on information
available at that time and was not binding on the trial court. The PSI
report reveals that the amount converted by Defendant was at least
$6,850, but could be as high as $200,000 based on records kept by local
casinos reflecting Defendant's losses.

In cases such as this, we note that restitution cannot always be
determined with exactitude. For this reason, the trial court is given
discretion in determining the amount of restitution appropriate under the
particular circumstances of a given case. . . . While greater than the
amount Defendant asserts, the amount of restitution ordered by the trial
court represents only one tenth of the losses as estimated by the victim.
During sentencing, the trial court stated the following regarding the
determination of restitution:

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It will be far less than [sic] the victim says they’re owed.
It will be more than what you feel like is owed. But I feel
like any difference would help compensate the victim for
any inconvenience that he went through even if it may be
greater than what you feel like you actually owe in dollar
for dollar.

Id. at 594-95 (alteration in original).

Here, the amount asserted by Green at the restitution hearing differed from that

given to the Probation and Parole Officer. As noted in McDonald, a trial court is

given discretion in determining the amount of restitution as it cannot always be

established with exactitude. We find that the trial court did not abuse its discretion

in awarding restitution in the amount of $4,050.00.

Accordingly, this assignment is without merit.

Remaining Assignments of Error

The defendant notes that he was eighteen years old when the offenses were

committed and that he is a first felony offender. He argues that “[f]ailing to consider

[his] young age and personal history . . . violates the provisions of La.C.Cr.P. Art.

894.1 which requires the sentence to be particularized to the offender. In this case,

an excessive sentence has resulted.”

In his written pro se motion to reconsider sentence, the defendant asserted that

his sentences were excessive and asked the trial court to consider “all relevant

information and certain mitigating circumstances,” which he did not set forth in his

motion. Because all other motions were oral and failed to set forth any bases for

reconsideration, we will only address the defendant’s claim that his sentences for

armed robbery and aggravated burglary were excessive. See La.Code Crim.P. art.

881.1(E).

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In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779

So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331(alteration in

original), this court set forth the standard for reviewing excessive sentence claims:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” 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 of discretion. State v.
Etienne, 99-192 (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 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S.
1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Pursuant to La.R.S. 14:64(B), the penalty for armed robbery is imprisonment

“at hard labor for not less than ten years and for not more than ninety-nine years,

without benefit of parole, probation, or suspension of sentence.” The defendant

received a sentence of thirty years at hard labor. The penalty for aggravated burglary

is one to thirty years at hard labor. La.R.S.14:60. Here, the defendant was sentenced

to fifteen years at hard labor.

At the defendant’s original sentencing hearing, the trial court remarked:

Though the defendant is a first offender, these are serious charges where
serious injuries to Ms. Green were had; a broken nose with a blunt head
and facial trauma, lacerations to the top of her head and forehead, and
considerable mental anxiety and pain and suffering. And the court notes
that the following provisions of Article 894.1, the sentencing guidelines,
are pertinent. That would be A(2) and A(3). 894.1.A(2), that the
defendant is in need of correctional treatment; 894.1.A(3), that a lesser
sentence would deprecate the seriousness of the defendant’s crime;
894.1.B(5), that the offender knowingly created a risk of death or great
bodily harm to more than one person. There were two victims of this
crime, Ms. Green and Ms. Dartez. 894.1.B(9), that the offense resulted
in significant permanent injury to the victim. . . . Also, Article

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894.1.B(10), that the offender used a dangerous weapon in the
commission of the offense.

The trial court noted the same factors at the resentencing hearing.3

“In State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4, the Louisiana

Supreme Court stated that sentences of 35 to 50 years have been found to be

acceptable for first offenders convicted of armed robbery, citing State v. Augustine,

555 So.2d 1331, 1332 (La.1990), and State v. Thomas, 98-1144, p. 2 (La.10/9/98),

719 So.2d 49, 50.” State v. Alexander, 03-1291, p. 12 (La.App. 5 Cir. 3/30/04), 871

So.2d 483, 491, writ denied, 04-1063 (La. 10/1/04), 883 So.2d 1007.

After reviewing the record, we find that the defendant’s sentences are not

excessive. The defendant’s thirty year sentence for armed robbery, which is in the

lower range approved for first felony offenders convicted of that offense, was ordered

to run concurrently with his sentence for aggravated burglary. Moreover, the trial

court gave adequate consideration to the factors listed in La.Code Crim.P. art. 894.1.

Given the violent nature of the offenses and the trauma to the victim, we find that the

trial court did not abuse its discretion in imposing the defendant’s sentences.

This assignment has no merit.

DECREE

For the foregoing reasons, the defendant’s sentences are affirmed.

AFFIRMED.

3
The trial court stated:

[T]he Court has taken into consideration the provisions of Code of Criminal
Procedure Article 894.1 and particularly paragraph one, that there is a risk that the
defendant in this case would commit another crime; paragraph two, that the
defendant is in need of correctional treatment; and number three, a lesser sentence
would deprecate the seriousness of the defendant’s crime. The Court also takes into
consideration other provisions of 894.1, paragraph B, particularly number nine, there
was a significant injury and economic loss to the victims in this case; six, that the
defendant used threats or other actual violence in the commission of the offense;
[and] number ten, the defendant used a dangerous weapon in the commission of the
offense. . . .

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