State of Louisiana v. Brandy Smith

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 08-1030

STATE OF LOUISIANA

VERSUS

BRANDY SMITH

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 73,886
HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and James T. Genovese,
Judges.

SENTENCE MODIFIED, AND AS MODIFIED, AFFIRMED.

William E. Tilley
District Attorney
Thirtieth Judicial District Court
P.O. Box 1188
Leesville, LA 71446-1188
(337) 239-2008
Counsel for Appellee:
State of Louisiana

Mark Owen Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457
(318) 572-5693
Counsel for Defendant/Appellant:
Brandy Smith

Terry Wayne Lambright
Assistant District Attorney
100 S. Third Street, Suite A
Leesville, LA 71446
(337) 239-6557
Counsel for Plaintiff/Appellee:
State of Louisiana

EZELL, JUDGE.

On February 19, 2008, the Defendant, Brandy Smith, was charged by bill of

information as follows: counts one and three - simple burglary, violations of La.R.S.

14:62; counts two and four - theft of over $500.00, violations of La.R.S. 14:67 (B)(1);

and, count five - theft of a firearm valued over $500.00, a violation of La.R.S. 14:67.1

On April 7, 2008, the Defendant pled guilty to theft of over $500.00 in counts two

and four and to the reduced charge of attempted theft of a firearm in count five.

Counts one and three were dismissed pursuant to the plea agreement. Additionally,

the Defendant agreed to make restitution to the Victim in counts two and four. The

trial court ordered the State to verify the amount of restitution owed to the Victim

within thirty days and to make sure that defense counsel was in agreement to the

amount.

The Defendant was sentenced on June 24, 2008. On count two, the Defendant

was sentenced to six years at hard labor, four years suspended, and he was ordered

to pay a fine of $1,200.00, plus court costs. Upon release, he was to be placed on

three years supervised probation, subject to the general and mandatory conditions of

La.Code Crim.P. art. 895(A), in addition to the following special conditions: (1) pay

fine and costs through a probation officer with a minimum monthly payment of

$35.00; and (2) make restitution of $1,250.00 to the Victim, and $781.56 to the

insurance company, the amount paid to the Victim for his claim. In count four, the

Defendant was sentenced to six years at hard labor, four years suspended, and was

ordered to pay a fine of $1,000.00, plus court costs. Upon release, he is to be placed

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With regard to count five, the bill of information is confusing as it sets forth two separate
offenses, theft of a firearm and theft of over $500.00, and then indicates that the offense was in
violation of La.R.S. 14:67 (theft of over $500.00). At the Defendant’s guilty plea, the State
identified the charge in count five as theft of a firearm and the Defendant pled guilty to the reduced
charged of attempted theft of a firearm. As such, the bill of information should have charged the
Defendant with theft of a firearm, a violation of La.R.S. 14:67.15. The Defendant does not appeal
the conviction or sentence for count five, and thus, the issue is not addressed herein.

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on three years supervised probation, subject to the general conditions of probation

and the following special conditions: (1) pay fine and costs through a pay plan with

a minimum monthly payment of $30.00; and, ( 2) make restitution to the six victims

totaling $4,925.00. In count five, the Defendant was sentenced to four years at hard

labor, suspended, and was ordered to pay a fine of $500.00, plus court costs. He was

placed on three years supervised probation to begin upon his release on the other

sentences. His probation was subject to the general conditions of probation and the

special condition that he pay the fine and costs through a pay plan, with a minimum

payment of $15.00. A supervision fee of $55.00 while on active supervised probation

was also ordered. The sentences on all three counts were ordered to run concurrently

with each other.

A motion to reconsider sentence was filed on June 26, 2008, and summarily

denied, without reasons, on June 30, 2008. The Defendant is now before this court

on appeal, asserting that his sentences for the theft convictions are excessive and that

the trial court erred in ordering restitution to the Victim’s insurance company in count

two. The Defendant’s sentences for theft over $500.00 are affirmed. However, the

provision for restitution to the insurance company as a special condition of probation

in count two is vacated.

FACTS

At the Defendant’s guilty plea hearing, the State asserted that on or about July

20, 2007, the Defendant, along with another individual, entered a camp belonging to

Scott Dickerson and removed property, including four-wheelers, hunting and camping

equipment, farming equipment, and a utility trailer valued at approximately

$9,500.00, with the intent of permanently depriving the owner of the property. Also,

in July, 2007, the Defendant entered two different mobile homes, without permission

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of the owners, and removed property with a total value of approximately $4,955.00,

$3,000.00 of which included nine firearms, with the intent of permanently depriving

the owners of the property.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the

court for errors patent on the face of the record. After reviewing the record, there is

one error patent which will be addressed in assignment of error number two.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, the Defendant argues that the sentences imposed

for the two theft charges were cruel, unusual, and excessive. Specifically, the

Defendant asserts that the record contains little to no evidence that the trial court

considered the mitigating and aggravating factors listed in La.Code Crim.P. art.

894.1.

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

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).

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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,

03-562 (La. 5/30/03), 845 So.2d 1061.

As stated in La.R.S. 14:67(B)(1), “Whoever commits the crime of theft when

the misappropriation or taking amounts to a value of five hundred dollars or more

shall be imprisoned, with or without hard labor, for not more than ten years, or may

be fined not more than three thousand dollars, or both.” In the instant case, the

Defendant’s six-year sentence on each count of theft is just over one-half of the

maximum possible sentence, and he received only one-half of the maximum possible

fine. Additionally, although the offenses were totally unrelated, the trial court opted

for leniency and ordered concurrent sentences. Also, the trial court suspended all but

two years of each sentence.

Moreover, the Defendant received significant benefit from his plea agreement

which resulted in the dismissal of two counts of simple burglary and the reduction of

theft of a firearm to attempted theft of a firearm. Prior to his plea, the Defendant

faced up to twelve years, with or without hard labor, and a fine of up to $2,000.00,

on each count of simple burglary. See La.R.S. 14:62(B). Additionally, his sentencing

exposure for theft of a firearm was significantly reduced.

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At sentencing, the trial court reviewed the facts of the offenses, noting not only

the theft of property, but also damage to the premises and the fact that some of the

items were not recovered. Also, the Defendant urged the trial court to consider the

fact that the primary reason most of the items were recovered was because he assisted

police by providing information.

Next, the trial court stated for the record the factors considered in sentencing

the Defendant as follows:

I considered the Article 894.1 factors and found the following were
applicable. There was economic harm to the victim - or victims. There
were multiple victims, as I noted, and it was significant and this makes
this a little more serious because of that. If you break into someone’s
house, typically there is a victim - the owner of the property. In this case
because it was a deer camp among other places, the hunters congregated
at the camp and so they all had their own items there that belonged to
them so that compounds the problem because there’s multiple victims.
It, it makes it more significant. There are no substantial grounds which
would tend to excuse or justify his criminal conduct nor did he act under
strong provocation. He’s twenty-eight years of age. He’s married and
has one child. He is in relatively good health but has had two knee
surgeries and he has been working as a worker according to the report
with Grey Wolf Drilling Company. He has a high school education. He
does have a prior criminal record in that on January 23rd, 2004, he
committed the offense of simple battery and was given jail time that was
suspended and placed on six months supervised probation. Again, on
May 8th, 2007 in the 30th Judicial District Court, he was convicted of
misdemeanor turkey hunting violations. He was given a fine and jail
time which was suspended and he was placed on two years supervised
probation. He has a pending felony grade theft charge in the - in
Newton County, Texas - or, it was pending at the time the report was
done and the court’s going to note that he was on probation for the
misdemeanor turkey violations at the time that these offenses were
committed. I noted that there is [sic] a number of victims in this case
and, quite frankly, that it’s, it’s caused some traumatization to some of
the victims. One of the camps - the camp that was broken into which
was privately owned, those folks are selling the camp or had put it up for
sell [sic] because the man’s wife, quite frankly, didn’t want to stay there
anymore - didn’t feel safe - and I can understand her feelings.

Considering the Defendant’s prior criminal history, the lack of mitigating

factors in the commission of the offenses, and the benefit the Defendant received

from his plea agreement, we find that the Defendant’s sentences are not excessive.

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The Defendant did not receive near maximum sentences as claimed, and in fact, all

but two years of the Defendant’s sentences were suspended. Additionally, the record

clearly reflects that the trial court gave adequate consideration to the mitigating and

aggravating factors in the instant case. Accordingly, the Defendant’s sentences for

theft over $500.00 are affirmed.

ASSIGNMENT OF ERROR NUMBER TWO

By this assignment of error, the Defendant argues that the trial court erred in

ordering the payment of restitution in count two to the insurance company for the

amount it paid to the insured victim. In support of his argument, the Defendant refers

to State v. Perez, 07-229 (La.App. 3 Cir. 10/3/07), 966 So.2d 813. In Perez, the

defendant entered a Crosby plea and reserved his right to appeal the issue of payment

of restitution to the victims’ insurance companies if the condition was made part of

his sentence. At sentencing, the defendant was then ordered to pay restitution as a

condition of probation to all of his victims, which included restitution to insurance

companies whose insureds were victims of his criminal actions.

On appeal, the defendant argued that the insurance companies are not “victims”

for purposes of La.Code Crim.P. art. 895.1. In ruling that restitution may be ordered

to compensate the victim only, not the victim’s insurance company, this court

reasoned as follows:

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:

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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.

Perez, 966 So.2d at 815-16(alteration in original).

The State concedes that this assignment may have merit, but argues,

nonetheless, that the term “victim” is sufficiently encompassing to include an

insurance company who has sustained a direct loss by virtue of payment of a claim

caused by a criminal’s conduct.

The State asserts that the facts in the jurisprudence cited by the Defendant and

this court in Perez are not factually the same as those in the instant case. The State

correctly states that in Diaz, 615 So.2d 1336, there is no discussion about insurance

companies and whether an insurance company is a victim under facts similar to this

case. We note, however, that Diaz was cited for its discussion regarding restitution

for pecuniary losses caused by the criminal activity. The court distinguished

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restitution from criminal sanctions for the purpose of enforcing collection of civil

damages.

With regard to Devare, 860 So.2d 191, the State correctly points out that unlike

the Defendant in the instant case, the defendant did not agree in her plea agreement

to pay an insurance company as a victim of her criminal conduct. The defendant

there was originally ordered to pay $12,005.44 in restitution to the victim. The State

interjected the fact that the victim’s insurance company had paid $11,804.25 to the

victim and, thus, was seeking reimbursement. The court subsequently ordered the

defendant to reimburse the victim’s insurance company $11,804.25 and pay the

balance of the restitution to the victim. On appeal, the court ruled that restitution may

be ordered only to compensate the victim and found that the trial judge should have

credited the restitution order by the amount that the victim’s insurance company

reimbursed the victim.

We find that neither of these cases directly address the issue of whether an

insurance company is a victim and, thus, do not support the State’s contention that an

insurance company can or should be considered a victim of criminal conduct.

Further, the State does not refer to any supporting jurisprudence, nor have we found

any jurisprudence to validate the State’s claim. The ruling in Perez, 966 So.2d 813,

is directly on point and the provision for restitution to the insurance company in the

instant case is vacated.

CONCLUSION

The Defendant’s sentences for theft over $500.00 are affirmed, but the

probationary condition ordering restitution to the insurance company as a special

condition of probation in count two is vacated.

SENTENCE MODIFIED, AND AS MODIFIED, AFFIRMED.

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