State of Louisiana v. Joey Granger

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-546

STATE OF LOUISIANA

VERSUS

JOEY GRANGER

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 28023-02
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.

John Foster DeRosier
District Attorney, Fourteenth Judicial District
Tara Hawkins
Karen C. McLellan
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
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:
Joseph A. Granger

Joseph A. Granger
Dixon Correctional Center
P. O. Box 788
Jackson, LA 70748
Pro Se

PICKETT, Judge.

The defendant, Joseph A. Granger, was charged by bill of information under

district docket number 4995-02 with theft by fraud over five hundred dollars, a

violation of La.R.S. 14:67.

On December 12, 2005, the state amended the bill to include the victims in

district court docket numbers 18743-02 and 17778-01.

Following amendment of the bill, the defendant entered a guilty plea to the

charge. At the same proceeding, the defendant entered guilty pleas to five other

charges. The trial court ordered a Presentence Investigation Report (PSI).

On March 14, 2008, the defendant was sentenced to six years at hard labor.

At the same time, the trial court sentenced the defendant on the five other charges

to six years at hard labor on each charge to run consecutively to each other.

On April 11, 2008, the defendant filed in the trial court a “Motion and

Memorandum in Support of Motion to Amend or Modify Sentence or Alternatively

Motion to Reconsider Sentence,” which was denied by the trial court on April 14,

2008, without conducting a hearing.

On June 4, 2008, the trial court issued a civil judgment entitled “Judgment of

Restitution,” ordering the defendant to pay restitution to the victims.

The defendant appealed challenging his sentence. This court held in

pertinent part:

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:

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.

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(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 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), 4
So.3d 1011, 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 1016. The defendant appealed, arguing
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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 1016.

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:

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.2d 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, 4 So.3d
1011.

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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.

State v. Granger, 08-1477, pp.8-12 (La.App. 3 Cir. 6/3/09), 11 So.3d 649, 655-57.

On remand, the trial court, while the defendant was present, imposed the

following sentence:

So, therefore, the Court at this time now resentences Mr.
Granger as was originally sentenced to six years on each count to be
served consecutively; in addition to pay restitution as provided for in
the presentence investigation as to all 18 victims and for the full
amounts total and made known thereof for which the defendant and
his counsel had information to review prior to the Court passing
sentence.

The defendant‟s attorney did not object and did not file a motion to

reconsider sentence.

Appellate counsel filed an Anders brief in this matter. In his brief to this

court, the Defendant‟s attorney states in pertinent part:

In the original six appeals, the excessiveness of Mr. Granger‟s
original sentences were [sic] addressed by this Honorable Court and
are not an issue now. This Honorable Court also remanded to
determine restitution. The only issue in the remand of the six cases
was the trial court ordering restitution.

Mr. Granger filed no pre-sentence motions objecting to the
remanded proceedings or the ordering of restitution. His trial counsel
filed no objections during the re-sentencing proceedings. His trial
counsel consented to the total amount of restitution. Mr. Granger
filed no motion to reconsider the new sentences ordering restitution.

The issue of whether the trial court can order restitution was
resolved by the prior rulings of this Honorable Court. There appears
to be no basis for appealing the amounts of the restitution, considering
no objection were [sic] made as to the restitution. Without a motion
to reconsider his sentence, it can only be reviewed for being
unconstitutionally excessive. The appellate court [sic] have long held
that a sentence violates La. Const. Art. 1. Sec. 20 if it is grossly out of
proportion to the seriousness of the offense or is nothing mor [sic]
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than a purposeless and needless infliction of pain and suffering. State
v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Bonanno, 384 So.2d
355 (La. 1980). A sentence is considered grossly disproportionate if,
when the crime and punishment are viewed in light of the harm done
to society, it shocks the sense of justice. State v. Hogan, 480 So.2d
288 (La. 1985); State v. Bradford, 29,519 (La.App. 2d Cir. 4/2/97),
691 So.2d 864.

Considering the restitution ordered in the six cases appear [sic]
to be the amounts lost by the victims, appellate counsel cannot argue
that the restitution would shock society‟s or this Honorable Court‟s,
sense of justice.

The only possible error patent appellate counsel found in the
record was Mr. Granger‟s pro se motion for appeal was filed beyond
the 30-day time limitation of La.C.Cr.P. Art. 914. The trial court‟s
order granted him time to file a writ application, but orders it to be
filed within the delays of La.C.Cr.P. Art. 915, an article relating to the
time delays for lodging an appeal. (T. R., p. 64). In any event the
state did not object, and at best, this should be considered an out-of-
time appeal.

Consequently, this Anders appeal is limited to the reimposition of restitution.

Additionally, the Defendant filed a pro se brief assigning two errors.

ERRORS PATENT

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

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

we find no errors patent.

Anders Analysis

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

defendant‟s appellate counsel has filed a brief stating he could find no errors on

appeal that would support reversal of the defendant‟s sentence. Thus, counsel

seeks to withdraw.

In State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990), the fourth circuit

explained the Anders analysis:

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When appointed counsel has filed a brief indicating that no
non-frivolous issues and no ruling arguably supporting an appeal were
found after a conscientious review of the record, Anders requires that
counsel move to withdraw. This motion will not be acted on until this
court performs a thorough independent review of the record after
providing the appellant an opportunity to file a brief in his or her own
behalf. This court‟s review of the record will consist of (1) a review
of the bill of information or indictment to insure the defendant was
properly charged; (2) a review of all minute entries to insure the
defendant was present at all crucial stages of the proceedings, the jury
composition and verdict were correct and the sentence is legal; (3) a
review of all pleadings in the record; (4) a review of the jury sheets;
and (5) a review of all transcripts to determine if any ruling provides
an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court
will order that the appeal record be supplemented with pleadings,
minute entries and transcripts when the record filed in this Court is not
sufficient to perform this review.

Id. at 531.

Pursuant to Anders and Benjamin, we have performed a thorough review of

the resentencing proceeding. Our review of the resentencing proceeding has

revealed no errors that would support an assignment of error on appeal.

Pro Se Assignment of Error Number One

The defendant challenges his six sentences as excessive; specifically, he

challenges the trial court‟s imposition of consecutive sentences. This claim is

repetitive, having been reviewed by this court in Granger, 11 So.3d 649.

Moreover, the appeal is limited to the reimposition of restitution by the trial court.

Accordingly, this assignment of error will not be considered.

Pro Se Assignment of Error Number Two

The defendant asserts the trial court erred in ordering restitution when it had

sentenced him to hard labor. This claim is repetitive, having been reviewed by this

court in Granger, 11 So.3d 649. Accordingly, this part of the assignment of error

will not be considered.

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The defendant complains that the record does not contain evidence that he

consented to the order, or was provided notice or a hearing on the restitution

payments. The record reflects that, upon remand, the trial court fixed this matter

for hearing within the time prescribed by this court‟s order. An order was issued

to transport the defendant, who was incarcerated, to the hearing. He was present in

court with his attorney. His attorney acknowledged the amount owed in restitution

as set forth in the PSI. The defendant made no objection at the hearing regarding

timeliness of notice or to the court‟s ruling as to restitution. This assignment of

error is without merit.

CONCLUSION

The sentence imposed by the trial court is affirmed. Defense counsel‟s

motion to withdraw is granted.

SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.

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