State of Louisiana v. John Wesley Billiot

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1189

STATE OF LOUISIANA

VERSUS

JOHN WESLEY BILLIOT

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 35370-11
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

AFFIRMED.

John F. DeRosier
District Attorney
Karen C. McLellan
Assistant District Attorney
Fourteenth Judicial District
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Paula C. Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
John Wesley Billiot

John Wesley Billiot
Louisiana State Penitentiary
Camp C, Tiger 4/R
Angola, LA 70712
IN PROPER PERSON

PETERS, J.

The defendant, John Wesley Billiot, entered a no-contest plea to obscenity, a

violation of La.R.S. 14:106. Thereafter, the trial court sentenced him to serve three

years at hard labor and to pay a fine of $2,500.00. The trial court further ordered

that the three-year sentence run consecutive to other sentences the defendant had

received for pleas to other charges entered on the same day. After the trial court

rejected his motion to reconsider the sentence, the defendant appealed. For the

following reasons, we affirm the conviction and sentence in all respects.

DISCUSSION OF THE RECORD

The matter before us is a companion case to two other appeals now before us

involving basically the same issues. However, the appeals are not consolidated as

they each arise from different criminal acts. The connecting link is the fact that the

three pleas arise from the same plea negotiations with the State of Louisiana (state).

On September 1, 2011, the state charged the defendant by grand jury

indictment with two counts of forcible rape, violations of La.R.S. 14:42.1; and with

four counts of tattooing and body piercing a minor without consent, violations of

La.R.S. 14:93.2. The defendant entered not-guilty pleas to all of the offenses on

September 12, 2011. On January 28, 2013, the state amended one count of the

indictment to charge the defendant with obscenity and dismissed the remaining

charges. On that same day, the defendant entered a no-contest plea to the

obscenity charge, and on April 24, 2013, the trial court sentenced the defendant.

On that same day, the trial court sentenced the defendant on seven other felonies to

which he had previously entered no-contest pleas: three counts of aggravated

battery, violations of La.R.S. 14:34; two counts of armed robbery, violations of

La.R.S. 14:64; and two counts of armed robbery with a firearm, violations of

La.R.S. 14:64.3.

At the time the defendant entered his plea of no contest to obscenity, the

state provided the trial court with the factual basis in support of the charge. This

factual basis established that between November 1, 2010 and January 31, 2011, the

defendant exposed his genitals and pubic hair to the thirteen-year-old victim in this

matter and induced her to expose her vulva and nipples to him. Additionally, the

defendant committed sexual acts with the victim and solicited or enticed her to

commit the prohibited acts knowing that she was under the age of seventeen. The

defendant’s purpose in respect to these actions, according to the state, was to

arouse the sexual desires or interest of both him and the victim.

On appeal, the defendant asserts (1) that his sentence violates the terms of

his plea agreement and that either the plea agreement should be enforced or he

should be allowed to withdraw his no-contest plea; (2) that the trial court erred in

failing to rule on his pro se motion to withdraw his plea; and (3) that the $2,500.00

fine should be vacated given his indigent status.

Assignment of Error Numbers One and Two

As previously stated, on the day the defendant entered his no-contest plea to

the charge in this matter, he did so in two other pending matters involving seven

additional felony counts. The end result of his pleas from a sentencing standpoint

is as follows:

Trial Court Docket Number 07597-11

Aggravated battery – ten years at hard labor to run consecutive to all
of the other sentences. (The state had recommended a ten year hard
labor sentence to run current to the other sentences).

This offense was committed on January 15, 2011, and involves a
victim different from the victim in the current matter.

Trial Court Docket Number 07619-11
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Armed robbery (two counts) – seventy years at hard labor on each
count to run concurrently to each other and to be served without the
benefit of parole, probation, or suspension of sentence. (The state had
recommended fifteen years at hard labor without benefit of parole,
probation, or suspension of sentence on each count to run concurrent
to the other sentences).

Armed robbery with a firearm (two counts) – five years at hard labor
to run concurrently with each other, but consecutively with the armed
robbery sentences, and to be served without the benefit of parole,
probation, or suspension of sentence. (The state had recommended
five years at hard labor without benefit of parole, probation, or
suspension of sentence on each count to run consecutive to the armed
robbery sentences).

Aggravated battery (two counts) – five years at hard labor to run
concurrently with each other and concurrently with the two armed
robbery counts and the two armed robbery with a firearm counts.
(The state had recommended ten years at hard labor on each count to
run concurrent with the other sentences).

These offenses were committed on January 3, 2011, and involved
victims different from the victim in the current matter.

Trial Court Docket Number 35370-11 (the matter now before us)

Obscenity – three years at hard labor to run consecutively with the
other sentences and a fine of $2,500.00. (The state had recommended
three years at hard labor to run concurrent with the other sentences).

Additionally, as part of the plea agreement, the state agreed not to pursue the

defendant as a habitual offender and to recommend that he receive a combined

maximum sentence of twenty-five years at hard labor without the benefit of

probation, parole, or suspension of sentence for all of the convictions in the three

docket numbers. At the hearing in which the defendant entered his plea, the state

made the recommendations to the trial court as promised.

In this first assignment of error, the defendant asserts that despite the plea

agreement, his pleas subjected him to sentences totaling eighty-eight years at hard

labor instead of twenty-five years. In the second assignment of error, he asserts

that the trial court erred in failing to rule on his pro se motion to withdraw his plea.
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We considered these same assignments of error in the companion cases and have

rendered an opinion this day finding no merit in either of those arguments. State v.

Billiott, 13-1187 (La.App. 3 Cir. __/__/14), __ So.3d __; State v. Billiott, 13-1188

(La.App. 3 Cir. __/__/14), __ So.3d __. We adopt the analysis set forth in that

opinion as though set forth herein in full and, for those reasons, find no merit in the

first two assignments of error.

Assignment of Error Number Three

In his third assignment of error, the defendant asserts that because he is

indigent, the $2,500.00 fine should be vacated as no indigent defendant can be

subjected to confinement in lieu of payment of a fine or cost. He notes that his

indigent status is clear from the record in that he was represented by a court-

appointed indigent defender at trial and by the Louisiana Appellate Project on

appeal. Finally, he asserts that the fine is unduly burdensome and serves no useful

purpose.

Louisiana Revised Statutes 14:106(G)(1) provides that one convicted of

obscenity can be punished by imposition of a fine of not less than $1,000.00 nor

more than $2,500.00, or imprisonment with or without hard labor for not less than

six months nor more than three years, or both. Thus, the fine imposed on the

defendant is within statutory limits.

In considering this assignment of error, we note that this very issue has been

before us before. In State v. Allen, 09-1281 (La.App. 3 Cir. 5/5/10), 36 So.3d

1091, the defendant argued that the imposition of his $2,000.00 fine should be set

aside because of his indigent status. In support of his argument, the defendant

referred this court to State v. Perry, 472 So.2d 344 (La.App. 3 Cir. 1985), where

this court found that a $5,000.00 fine imposed on an indigent defendant, with a

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one-year prison-default provision, could not stand given the defendant’s indigent

status.

In Perry, the indigent defendant with court-appointed counsel had pled

guilty to attempted distribution of a counterfeit schedule II controlled-dangerous

substance. In addition to a four-year hard-labor sentence, the trial court ordered

the defendant to pay a $5,000.00 fine and court costs, and, in default of paying the

fine and costs, the defendant was to serve an extra year of incarceration.

The court in Allen distinguished Perry in a number of ways, including the

fact that in the matter then before it, the trial court had not imposed a default

condition on the defendant as had been the case in Perry. The court noted that it

was unable to find any jurisprudence which prohibited or limited the trial court’s

imposition of a fine on an indigent defendant other than in situations where default

time was imposed on the indigent defendant.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s conviction and

sentence in all respects.

AFFIRMED.

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