State of Louisiana v. Joseph A. Granger

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1482

STATE OF LOUISIANA

VERSUS

JOSEPH A. GRANGER, JR.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 20576-03
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett and J. David Painter, Judges.

SENTENCE AFFIRMED. JUDGMENT OF RESTITUTION VACATED.
REMANDED.

John F. DeRosier
District Attorney
Carla S. Sigler
Assistant District Attorney
Post Office Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Mark O. Foster
Louisiana Appellate Project
Post Office Box 2057
Natchitoches, LA 71457
(318) 572-5693
COUNSEL FOR DEFENDANT/APPELLANT:
Joseph A. Granger, Jr.

AMY, Judge.

The defendant pled guilty to one count of theft over $500.00, a violation of

La.R.S. 14:67. He was sentenced to serve six years at hard labor with the sentence

to run consecutively with the sentences imposed on five other convictions. The

defendant appeals, asserting that the sentence is excessive and that the trial court

erred in ordering him to pay restitution to the victims of the crimes after he was

sentenced. We affirm the defendant’s sentence, but vacate the Judgment of

Restitution. We remand for further proceedings.

Factual and Procedural Background

This matter is one of six companion cases.1 In this case, the defendant, Joseph

A. Granger, Jr., was initially charged by bill of information with one count of theft

over $500. The State alleged that on January 10, 2003, the defendant agreed to

perform certain services for the victim. Although the victim paid the defendant

$3,561.00, the defendant did not perform the services. On December 12, 2005, the

State amended the bill of information to include the victims under another docket

number. As for this latter occurrence, the State alleged that, on March 26, 2002, the

defendant was paid $1,547.21 to perform home repairs. No work was performed.

After the bill of information was amended, the defendant entered a guilty plea.

He also entered guilty pleas for five other offenses. The trial court ordered a

presentence investigation report.

1
For the factual backgrounds of the other five convictions, see the decisions in the
companion cases also before this court on appeal: State v. Joseph A. Granger, 08-1477 (La.App. 3
Cir. _/_/09), _ So.2d _; State v. Joseph “Joey” Alford Granger, 08-1478 (La.App. 3 Cir. _/_/09), _
So.2d _; State v. Joey Granger, 08-1479 (La.App. 3 Cir. _/_/09), _ So.2d _; State v. Joey Granger,
08-1480 (La.App. 3 Cir. _/_/09), _ So.2d _; State v. Joseph A. Granger, Jr., 08-1481 (La.App. 3 Cir.
_/_/09), _ So.2d _.

On March 14, 2008, the trial court sentenced the defendant to six years at hard

labor with the sentence to run consecutively with the sentences imposed for the other

convictions.

Thereafter, the defendant filed a Motion to Amend or Modify Sentence or

Alternatively Motion to Reconsider Sentence. The trial court denied the motion on

April 14, 2008. Defense counsel later proffered evidence and testimony with regard

to the denial of the Motion to Reconsider Sentence.

On June 4, 2008, the trial court issued a “Judgment of Restitution,” ordering

the defendant to pay restitution to the victims of the crimes underlying the six

convictions.

The defendant appeals, asserting that the sentences imposed are excessive and

that the trial court erred in ordering restitution after sentencing the defendant.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 9202, all appeals are reviewed for errors patent

on the face of the record. After reviewing the record, we find no errors patent

requiring correction.

2
Louisiana Code of Criminal Procedure Article 920 provides:

Art. 920. Scope of appellate review

The following matters and no others shall be considered on appeal:

(1) An error designated in the assignment of errors; and

(2) An error that is discoverable by a mere inspection of the pleadings and
proceedings and without inspection of the evidence.

2

Excessive Sentence

The defendant, on appeal, contends that his sentence is excessive, particularly

because the six-year sentence was ordered to run consecutively to the six-year

sentences imposed on the other five charges to which he also pled guilty. Relying on

La.Code Crim.P. art. 883,3 he asserts that “all six cases clearly constituted a common

scheme or plan to the extent that the state consolidated all six for an initial

arraignment, a guilty plea and sentencing.” Further, the defendant argues that the trial

court’s reasons for ordering that the sentences be served consecutively do not

“articulate a basis for overriding the presumption of concurrent sentences.”

The defendant did not specifically raise the error of consecutive sentences in

his motion to reconsider sentence filed in the trial court. Accordingly, the sentence

will be reviewed under a bare excessiveness claim. See La.Code Crim. P. art. 881.l4

and State v. Clark, 06-508 (La.App. 3 Cir. 9/27/06), 940 So.2d 799, writ denied, 06-

2857 (La. 9/21/07), 964 So.2d 324.

With regard to excessive sentence claims, this court stated:

3
Louisiana Code of Criminal Procedure Article 883 provides:

Art. 883. Concurrent and consecutive sentences

If the defendant is convicted of two or more offenses based on the same act
or transaction, or constituting parts of a common scheme or plan, the terms of
imprisonment shall be served concurrently unless the court expressly directs that
some or all be served consecutively. Other sentences of imprisonment shall be
served consecutively unless the court expressly directs that some or all of them be
served concurrently. In the case of the concurrent sentence, the judge shall specify,
and the court minutes shall reflect, the date from which the sentences are to run
concurrently.
4
Louisiana Code of Criminal Procedure Article 881.1 provides, in pertinent part:

E. Failure to make or file a motion to reconsider sentence or to include a
specific ground upon which a motion to reconsider sentence may be based, including
a claim of excessiveness, shall preclude the state or the defendant from raising an
objection to the sentence or from urging any ground not raised in the motion on
appeal or review.

3

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.

The trial court, at the sentencing hearing, stated:

At this time the Court is called upon to go through Article 894.1
with regard to the sentencing guidelines. 894.1 indicates that there
should be a sentence of imprisonment if any of the following occurs.

Is there an undue risk during a period of suspended sentence or
probation that the defendant would commit another offense? It’s noted
that the defendant is in fact a third time felony offender based on his
classification from the Department of Corrections. Since he has been in
his late twenties he has been constantly in trouble with the law, with all
of these matters apparently involved with some form or allegation of
taking of which there has at least been two prior felony convictions.
The Court would answer that in the affirmative.

Is the defendant in need of correctional treatment or a custodial
environment that can be provided most effectively by his commitment
to an institution? It is apparent that as a third time offender that the
defendant at this point has not learned to cease and desist and, in fact,
there are six individual counts before the Court at this point and in
comparing that with the past offenses the Court is also answering that
in the affirmative; that a commitment to an institution is appropriate, as
well as the defendant’s failure to adhere to the request to appear in Court
on the number of bench warrants that his record also demonstrates.

Would any lessor [sic] sentence deprecate the seriousness of the
offense? Obviously at some point the opportunities for probation based

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on the statutory guidelines indicating that he is not eligible as a third
time offender must indicate the State’s preference to some form of
incarceration and further to continue to allow that defendant to be on the
street. He’s basically a hindrance and hazard to the public and would
deprecate the seriousness of this offense.

In looking at aggravating circumstances the Court notes the
following: The offender offered or has been offered or has given or
received something of value for the commission of these offenses by the
very nature. The Court finds that to be aggravating.

The offender has used his position or status to facilitate the
commission of these offenses. The victims in this case were vulnerable.
They trusted the defendant, many of them in times of need following the
hurricane and needing help to assist them in other repairs and items.
The defendant has used his position and ability to be somewhat of a
craftsman as far as floor coverings and such to gain their trust and then
once he’s received funds then basically disappears with those monies
and not provide the services that he previously rendered. In addition, he
has submitted a number of worthless checks in an attempt to obtain
something for nothing.

Other aggravating [sic], it is noted that these offenses have
resulted in significant permanent injury or economic losses to the
victims. In reviewing the pre-sentence investigation there is an
aggregate of $46,622.76 from a number of victims that was determined
by the officer with Probation and Parole and that is a significant
economic expense, as well as the inability then to trust other individuals
could cause some permanent detriment to the victims in this matter. The
Court would find that aggravating.

The offenses involve multiple victims and incidences for which
separate sentences have not been imposed. While the matters before the
Court include six separate felony offenses, it is noted that there were a
number of other offenses pursuant to that guilty plea that were in fact
dismissed and the Court is not considering those, however it is noted
that multiple victims and incidences did exist for aggravating purposes.

The offender was persistently involved in similar offenses not
already considered as a criminal history or part of a multiple offender
adjudication. He’s not been addressed as a multiple offender, however
in a review of his history, while there’s not been convictions, the Court
cannot ignore the number of allegations that have been brought against
the defendant for the past fifteen, twenty years. The Court also finds
that this offense was a major economic offense.

Other aggravating circumstances, specifically the defendant
absconding from his sentencing hearing when given the opportunity to

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remain free and having received notice in open court made the decision
to try and avoid the entirety of his sentence or repayment to society and
by avoiding that proceeding not only delayed the Court’s business, but
gave an indication as to his true intent, whether he was remorseful and
willing to accept punishment for the actions that he has been involved
with.

The defendant had made arguments that he would compensate or
would compensate [sic] the victims, but at this time the Court’s received
no proof that that in fact has been done and it is the Court’s opinion that
those promises and now looking at the track record were merely an
effort to delay the ultimate sentencing for the matters before the Court.
That would be aggravating more than mitigating.

The defendant has no prior history of delinquency or criminal
activity and has led a law abiding life for a substantial period of his life.
That is much more aggravating than mitigating.

The defendant’s criminal conduct was the result of circumstances
unlikely to recur. More aggravating than mitigating.

The defendant is particularly likely to respond affirmatively to
probationary treatment. Again, he’s had those opportunities in the past
and failed to take advantage of them. I find that to be more aggravating
than mitigating.

The Court, if it did not mention one of the aggravating or
mitigating circumstances specifically, they were considered and, if not
mentioned, deemed insignificant or inapplicable to the incident [sic]
offense.

....

At this time the defendant has pleaded guilty to docket 20582-02,
felony worthless checks in an amount greater than $500; docket 3827-
03, theft greater than $500, noting that that was one count with multiple
victims inclusive; docket 28024-02, theft greater than $500; docket
20576-03, theft greater than $500; docket 4995-02, theft by fraud; and
docket 28023-02, theft greater than $500.

At this time the Court hereby sentences the defendant, Mr. Joseph
Alford Granger, to serve the sum of six years on each of those dockets.
That term will run consecutive with one another and the Court at this
time references Code Article 883 of the Code of Criminal Procedure.
As previously indicated the Court is of the opinion it needs to
annunciate particular justification if the sentence should be established
as consecutive. The basis of that, the Court finds that the defendant has
used his position to prey on societal needs. Each of these victims was

6

an individual that had unique issues, losses, for which the defendant
took advantage of. They occurred on different times, different physical
locations, and all with the defendant’s intent to take from that specific
victim or the matters associated with those specific dockets. Some were
property takings, some were money takings for equipment rental, repair.
Some were monies that were going to be received in advance to repair,
such as remodeling or installing flooring ,and many of the others were
significant issuance of worthless checks to vendors or creditors that the
defendant has pled guilty to knowing that there were no funds to pay for
those.

The defendant will serve a total of 36 years with the Department
of Corrections as a result of that.

The defendant in this case committed separate crimes, with separate victims,

locations, and dates. Pursuant to La.Code Crim. P. art. 883, the sentence was to be

served consecutively, unless the court expressly directed that it be served

concurrently. Accordingly, the trial court did not err in ordering that the six sentences

run consecutively.

As for the determination of whether the penalty imposed shocks one’s sense

of justice, we note that the defendant received a mid-range sentence. Louisiana

Revised Statutes 14:67(B)(1) instructs that the penalty for theft over $500.00 includes

imprisonment of up to ten years with or without hard labor, or a fine of up to three

thousand dollars, or both. The defendant was sentenced to six years, a mid-range

sentence. Additionally, the defendant benefitted from the aggregation of the three

charges into a single count. See La.R.S. 14:67(C)5 and La.Code Crim.P. art. 4816.

5
Louisiana Revised Statutes 14:67(C) provides that “[w]hen there has been a
misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount
of the misappropriations or taking shall determine the grade of the offense.”
6
Louisiana Code of Criminal Procedure Article 481 provides:

An indictment of theft may include several counts against the same defendant
for distinct acts of theft, and the aggregate amount of the thefts shall determine the
grade of the offense charged. If a defendant misappropriates money or other things
of value, which were entrusted to him by virtue of his office, employment, or any
fiduciary relationship, he may be charged in one count with theft of the aggregate
amount misappropriated by him during the entire time of his holding the office,

7

As such, this assignment of error lacks merit.

Restitution

In his second assignment of error, the defendant asserts that the trial court erred

in ordering that he pay restitution two months after a hard labor sentence was

imposed. He contends that, pursuant to La.Code Crim.P. art. 916, the trial court no

longer had jurisdiction to issue such a judgment. Secondly, the defendant argues that

“restitution is generally limited by statute to probated sentences.” Finally, he

questions whether it was appropriate to impose restitution without a hearing being

conducted.

At the sentencing hearing, the defendant’s attorney acknowledged, without

“objections or additions” the content of the presentence investigation report,

including the amounts of restitution owed to the victims. The trial court stated at the

sentencing hearing:

I indicate to the State that they may seek or file a civil judgment
in conformity with the pre-sentence investigation as to the respective
victims and restitution less any credits that may have been received,
Mrs. Wilson, for those respective amounts and they can remain in the
civil records in the hopes of some time [sic] collecting those amounts.

After the defendant’s Motion to Reconsider Sentence was denied, the

defendant filed a motion for appeal. Said motion was granted on May 14, 2008. On

June 4, 2008, without a hearing, the trial court issued a judgment, ordering that the

specified amounts of restitution be paid to the eighteen victims listed therein.

Suspension of a defendant’s sentence or placing a defendant on probation is not

a prerequisite to imposing restitution. La.Code Crim.P. art. 883.2. At the time this

offense was committed, La.Code Crim.P. art. 883.2 provided:

employment, or fiduciary relationship.

8

In all cases in which the court finds an actual pecuniary loss to a
victim, or in any case where the court finds that costs have been incurred
by the victim in connection with a criminal prosecution, the trial court
shall order the defendant to provide restitution to the victim as a part of
any sentence that the court shall impose.

(Emphasis added).

Furthermore, La.Code Crim.P. art. 886(A) provides, in pertinent part:

In the event of nonpayment . . . of restitution to the victim, . . .
within sixty days after the sentence was imposed, and if no appeal is
pending, the court which imposed the sentence may sign a judgment
against the defendant in a sum equal to the fine or restitution plus
judicial interest to begin sixty days after the sentence was imposed plus
all costs of the criminal proceeding and subsequent proceedings
necessary to enforce the judgment in either civil or criminal court, or
both. Collection of the judgment may be enforced in either criminal or
civil court, or both, in the same manner as a money judgment in a civil
case.

(Emphasis added).

Louisiana Code of Criminal Procedure Article 916 also provides in pertinent

part:

The jurisdiction of the trial court is divested and that of the
appellate court attaches upon the entering of the order of appeal.
Thereafter, the trial court has no jurisdiction to take any action except
as otherwise provided by law and to:

(1) Extend the return day of the appeal, the time
for filing assignments of error, or the time for filing per
curiam comments in accordance with Articles 844 and 919.

(2) Correct an error or deficiency in the record.

(3) Correct an illegal sentence or take other
appropriate action pursuant to a properly made or filed
motion to reconsider sentence.

(4) Take all action concerning bail permitted by
Title VIII.

(5) Furnish per curiam comments.

(6) Render an interlocutory order or a definitive

9

judgment concerning a ministerial matter not in
controversy on appeal.

(7) Impose the penalty provided by Article 844.

(8) Sentence the defendant pursuant to a
conviction under the Habitual Offender Law as set forth in
R.S. 15:529.1.

Thus, the trial court was divested of jurisdiction in this case at the time it entered the

Judgment of Restitution. The judgment is therefore a nullity.

Also, in State v. Roberts, 08-1026 (La.App. 3 Cir. 3/4/09), _So.2d._, the trial

court stated at sentencing that it was “‘also grant[ing] Mr. Gary Celestine a judgment

in the amount of $28,556.71 against Mr. Roberts.’” Id. at __. The defendant

appealed, arguing that the trial court did not order restitution as part of his sentence

pursuant to La.Code Crim.P. art. 883.2. This court, relying on La.Code Crim.P. art.

886, held:

Rather than making restitution to the victim a part of the
Defendant’s sentence, the trial court ordered restitution in the form of a
money judgment. The judgment was improper as Defendant had not
been given sixty days to pay restitution. Accordingly, the judgment is
vacated, and this matter is remanded for the imposition of restitution as
part of Defendant’s sentence as contemplated by La.Code Crim.P. art.
883.2.

Id. at __.

As in Roberts, the trial court improperly imposed restitution via a civil

judgment, rather than as a part of the defendant’s sentence pursuant to La.Code

Crim.P. art. 883.2.

Further, the record does not indicate that the defendant was present when the

Judgment of Restitution was issued. In State v. Thomas, 05-1051, p. 4 (La.App. 3

Cir. 3/1/06), 924 So.2d 1146, 1149, abrogated on other grounds by State v. Stevens,

06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597, this court stated:

10

Louisiana Code of Criminal Procedure Article 835 provides for
the Defendant’s presence when sentence is pronounced:

In felony cases the defendant shall always be present
when sentence is pronounced. . . . If a sentence is
improperly pronounced in the defendant’s absence, he shall
be resentenced when his presence is secured.

The imposition of restitution is considered a part of the defendant’s
sentence, for which the defendant must be present. State v. Fortier, 03-
882 (La.App. 5 Cir. 11/25/03), 862 So.l2d 170. See also State v.
Boudreaux, 98-1932 (La.App. 3 Cir. 6/16/99), 741 So.2d 860.

Accordingly, the Judgment of Restitution is vacated, and the matter is

remanded to the trial court for restitution to be imposed as part of the defendant’s

sentence as contemplated by La.Code Crim.P. art. 883.2. See, e.g., Thomas, 924

So.2d 1146 and Roberts, _So.2d_.

DECREE

For the foregoing reasons, the defendant’s sentence is affirmed, but the

Judgment of Restitution is vacated. The matter is remanded to the trial court for re-

sentencing with regard to amounts owed for restitution, in accordance with this

opinion.

SENTENCE AFFIRMED. JUDGMENT OF RESTITUTION VACATED.
REMANDED.

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