State of Louisiana v. William C. Klesko

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-1391

STATE OF LOUISIANA

VERSUS

WILLIAM C. KLESKO

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COUT
PARISH OF VERNON, DOCKET NO. 83047 “A”
HONORABLE VERNON B. CLARK, JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese,
and John E. Conery, Judges.

AFFIRMED.

Paula C. Marx
Louisiana Appellate Project
Post Office Box 80006
Lafayette, Louisiana 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
William C. Klesko

Asa A. Skinner
District Attorney Thirtieth Judicial District
Terry W. Lambright
Assistant District Attorney
Post Office Box 1188
Leesville, Louisiana 71446-1188
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

In this criminal case, Defendant, William C. Klesko, appeals the order of

restitution pursuant to sentencing on his plea to the charge of theft of over

$1,500.00. For the following reasons, we affirm Defendant’s sentence in all

respects.

FACTS AND PROCEDURAL HISTORY

When Defendant entered his plea, the State made the following recitation of

facts in support of his plea:

[B]ack on August the 1st, 2011, this defendant did with
intent - - without consent and with intent to deprive via
through [sic] fraudulent acts, conduct, representations,
did take money [the] State contends [was] valued at
approximately six thousand dollars from Mrs. Betty
Marcias.[1] The essence of the charge is based upon
agreement alleged - - agreement between the two when
Mrs. Marcias entered into an agreement with this
defendant that he would do certain renovations on her
home for the total price of eleven thousand dollars. After
paying six thousand dollars to this defendant, it’s
contended by Mrs. Marcias that she never had any work
completed at her home[,] [t]hat there were certain
materials that were purchased, but at a value far less than
six thousand dollars. She was prepared to testify it’s
somewhere along the amount of a thousand two hundred
and twelve dollars[.]

On April 3, 2012, Defendant was charged by bill of information with one

count of theft over $1,500.00, a violation of La.R.S. 14:67(B)(1), and pled guilty to

that charge on May 20, 2013. As part of the plea agreement, the State agreed to

dismiss a count of contract fraud and also agreed not to file a habitual offender bill.

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The State refers to the victim as Mrs. Marcias, but, in other parts of the record including
the minutes and her testimony, she is referred to as Mrs. Macias. She will be referred to as
Mrs. Macias throughout this opinion.

After a restitution hearing, the trial court sentenced Defendant to serve six

years at hard labor, suspended, with four years supervised probation and ordered

him to pay a fine of $1,500.00 plus court costs. In accordance with La.Code

Crim.P. art. 895(A), the trial court ordered Defendant to pay the fine and costs

through a payment plan with a minimum payment of $30.00 per month. Defendant

was ordered to pay $500.00 to the Public Defender’s Office with a monthly

payment of $15.00 and $350.00 to the District Attorney’s Office with a monthly

payment of $10.00. The trial court also ordered Defendant to pay restitution to the

victim, Mrs. Macias, in the amount of $4,987.12 through a monthly payment plan

of $125.00 and to pay a monthly probation supervision fee of $65.50.

Defendant filed a Motion to Reconsider Sentence, alleging “the restitution is

excessive and beyond [D]efendant[’]s ability to pay[,]” which was denied.

Defendant now presents this appeal asserting excessive restitution.

ERRORS PATENT

As required by 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 there are no

errors patent.

ASSIGNMENT OF ERROR

The Defendant contends that the amount of restitution imposed by the trial

court is excessive, that the amount of the monthly payments is beyond his ability to

pay, and that the restitution is not reasonably related to rehabilitation.

It is well-settled that a trial court has vast discretion in
sentencing decisions, including the imposition of restitution. In State
v. Reynolds, 99-1847, p. 4 (La.App. 3 Cir. 6/7/00), 772 So.2d 128, 131
this court stated:

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The trial court’s decision in ordering restitution should
not be disturbed absent an abuse of discretion. State v.
Metlin, 467 So.2d 876 (La.App. 3 Cir.1985).

State v. Williamson, 04-1440, p. 6 (La.App. 3 Cir. 3/2/05), 896 So.2d 302, 307.

Louisiana Code of Criminal Procedure Article 895.1(A)(1) provides:

When a court places the defendant on probation, it shall, as a
condition of probation, order 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. The court shall order restitution in a reasonable sum not to
exceed the actual pecuniary loss to the victim in an amount certain.
However, any additional or other damages sought by the victim and
available under the law shall be pursued in an action separate from the
establishment of the restitution order as a civil money judgment
provided for in Subparagraph (2) of this Paragraph. The restitution
payment shall be made, in discretion of the court, either in a lump sum
or in monthly installments based on the earning capacity and assets of
the defendant.

Defendant pled guilty to theft over $1,500.00. He was ordered by the trial

court to pay restitution to the victim, Mrs. Macias, in the amount of $4,987.12

pursuant to a payment plan of $125.00 a month. In addition to the other fees,

including probation supervisory fees, payments to the public defender’s office and

the district attorney’s office, Defendant was required to make a minimum monthly

payment of $295.50 per month.

Defense counsel contends that Defendant is an indigent, fifty-year-old

construction worker and cannot afford the payments; however, and critical to

Defendant’s claims, defense counsel does not offer any proof of Defendant’s

financial status or capability. The record indicates that at the restitution hearing,

Defendant testified that he would usually charge $30.00 an hour for a similar job to

the one at issue and that he came out of retirement to do her renovations.

Defendant also admitted to not having a trade license, even though he took the job

and the money for the job.

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This court has held that “the trial court is given discretion in determining the

amount of restitution appropriate under the particular circumstances of a given

case.” State v. Joseph, 07-1567, p. 4 (La.App. 3 Cir. 4/30/08), 982 So.2d 310, 314

(quoting State v. McDonald, 33,356, p. 5 (La.App. 2 Cir. 6/21/00), 766 So.2d 591,

594). In Joseph, we found that the restitution was not excessive where the trial

court used the testimony of the victims and other information including the

presentence investigation report to determine the amount of restitution where the

exact amount was unable to be determined.

In the matter before us, the record shows no evidence of income, past or

future, other than Defendant’s testimony regarding his hourly charge. Based on

the record and the facts before us, there is no legitimate basis for us to conclude

that the trial court abused its discretion in awarding restitution or setting the fees.

Additionally, La.Code Crim.P. art. 894.4 states: “When a defendant has been

sentenced to probation and has a monetary obligation, including but not limited to

court costs, fines, costs of prosecution, and any other monetary costs associated

with probation, the judge may extend the period of probation until the monetary

obligation is extinguished.”

In State v. Shell, 46,983 (La.App. 2 Cir. 3/7/12), 87 So.3d 934, the defendant

was ordered to pay $20,000.00 in restitution. The second circuit found the

defendant stole in excess of $20,000.00 from a church; therefore, the amount of

restitution was justified. The second circuit then noted the defendant had only a

remote chance of paying back the full restitution during the five years of his

probation period. In a footnote, the second circuit remarked:

Paying off the assessed $20,000 over the five-year probationary
term, would require a payment of $333.33 per month, which would be
somewhere between harsh and impossible, for a man who is solely

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supported by disability payments. This record is unclear as to whether
the defendant has other sources of income, so we shall leave this
inquiry to any future revocation proceedings, for which we have
included, in this opinion, instructions for the trial court.

Id. at 941 n.13.

The second circuit further stated that if the defendant was truly indigent, he should

not be imprisoned for the failure to pay the sum ordered by the trial court, and:

[S]hould this matter be brought back before the trial court for a
revocation hearing, we direct our brother judge below to make careful
findings as to the defendant’s ability to pay and to carefully consider
the previous paragraph. If the trial court ever rules to revoke the
defendant’s probation, predicated on his failure to timely pay the
restitution, it is directed to grant a stay, if requested by the defendant,
for him to seek supervisory appellate review of the revocation.

Id. (footnotes omitted).

Similar to the court in Shell, here, the record is unclear as to Defendant’s

income and his ability to pay. Based on the ruling in Shell, we find that the inquiry

into Defendant’s ability to pay should be left to any future revocation proceedings

in the trial court.

The record before us does not prove that the restitution ordered by the trial

court was excessive, as it represented the loss sustained by the victim. Defendant’s

ability to pay may be addressed again at any future probation revocation hearing.

Accordingly, Defendant’s assignment of error lacks merit.

DISPOSITION

Defendant’s sentence is affirmed in its entirety.

AFFIRMED.

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