State of Louisiana v. Paul Vidrine -Aka- Paul Chris Vidrine

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-210

STATE OF LOUISIANA

VERSUS

PAUL VIDRINE, A/K/A PAUL CHRIS VIDRINE

**********

APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 109307-FA
HONORABLE GARY J. ORTEGO, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and John E. Conery, Judges.

CONERY, J., concurs in the result.

SENTENCE FOR ILLEGAL POSSESSION OF STOLEN THINGS
VACATED AND REMANDED FOR RESENTENCING;

SENTENCE FOR CRIMINAL TRESPASS VACATED;

CONVICTION AND SENTENCE FOR CONTEMPT OF COURT
AFFIRMED.

Trent Brignac
District Attorney – Thirteenth Judicial District
Julhelene E. Jackson
Assistant District Attorney – Thirteenth Judicial District
P. O. Drawer 780
Ville Platte, LA 70586
Telephone: (337) 363-3438
COUNSEL FOR:
Plaintiff/Appellee – State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
P. O.Box 2125
Lafayette, LA 70502
Telephone: (225) 806-2930
COUNSEL FOR:
Defendant/Appellant – Paul Vidrine, a/k/a Paul Chris Vidrine

THIBODEAUX, Chief Judge.

Defendant Paul Vidrine was charged by bill of information with one

count of criminal trespassing on immovable property, in violation of La.R.S.

14:63(B), and one count of theft of a movable valued at $5,000.00 or more but less

than $25,000.00, in violation of La.R.S. 14:67(B)(2). The State moved to sever the

charges and proceed to a jury trial on the theft charge only. Additionally, the State

filed an amended bill of information, charging Defendant with the theft only.

During trial, the jury was unable to reach a verdict. As a result, the

State moved for another amended bill of information, charging Defendant with the

amended charge of illegal possession of stolen things valued at $1,500.00 or more,

in violation of La.R.S. 14:69(B)(1). Defendant pled guilty to the amended charge

of possession of stolen things valued at $1,500.00 or more. The trial court

accepted the plea then ordered a pre-sentence investigation (PSI).

Sentencing was reset several times as a result of Defendant’s failure to

appear in court. Ultimately, Defendant was sentenced to five years at hard labor,

three years suspended, and three years of supervised probation on the illegal

possession of stolen things valued at $1,500.00 or more charge. In addition, the

trial court imposed a $1,500.00 fine, $127.50 in court costs, $350.00 to the IDB,

$250.00 cost of prosecution, $100.00 warrant fee, and $50.00 to the victim fund in

connection with the illegal possession of stolen things charge.

Although the amended bill of information did not charge him with

criminal trespass, the trial court nonetheless sentenced Defendant on the criminal

trespass charge to ninety days in the parish jail, to run concurrently with any other

sentence. The trial court also sentenced him to sixty days in the parish jail to run

consecutively to any other sentence for Defendant’s failure to appear for

sentencing on at least two occasions.

Defendant’s appeal challenges the excessiveness of his sentence

imposed for the illegal possession of stolen things.

For the following reasons, this court orders the sentence vacated

because of its indeterminate nature and the case remanded for resentencing on this

charge.

I.

ISSUES

We must decide:

(1) whether this court may review on appeal a
sentence imposed for a misdemeanor charge,
which was not included in the amended bill of
information;

(2) whether there is an error patent regarding the
sentence imposed for illegal possession of stolen
things; and

(3) whether the trial court’s ruling and sentence
regarding defendant’s failure to appear were
proper.

II.

FACTS AND PROCEDURAL HISTORY

The following factual basis was set forth by the State at Defendant’s

guilty plea:

He’s pleading to one count of Title 14 Section 69 (B) (1)
possession of stolen goods having a value of $1,500.00 or
more, the defendant shall be imprisoned with or without
hard labor for not more than ten years or may be fined
not more than $3,000.00 or both. The factual
circumstances[:] on or about February 7, 2017 within the

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Parish of Evangeline the defendant was found to be in
possession of a crawfish boat which was stolen from Mr.
Troy West. The approximate value of the crawfish boat
was $8,000.

III.

STANDARD OF REVIEW

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

by this court for errors patent. Upon reviewing the record, this court finds there is

an error patent regarding the sentence imposed for illegal possession of stolen

things that requires the sentence to be vacated and the case remanded for

resentencing. There are also procedural issues regarding the trial court’s

imposition of a sentence for criminal trespass and appellate jurisdiction issues over

the sentence imposed for criminal trespass and the sentence imposed for failure to

appear.

IV.

LAW AND DISCUSSION

PROCEDURAL ISSUES:

In this case, Defendant was originally charged with criminal trespass

and theft of a thing valued at more than $5,000.00 but less than $25,000.00.

Although the charging of these offenses in the same bill constituted a misjoinder

since they were triable by different modes of trial, the error was cured when the

State moved to sever the charges and filed an amended bill of information, leaving

only the theft charge. However, an issue arises because nothing in the record

before this court indicates Defendant was convicted of or pled guilty to criminal

trespass before the trial court imposed a sentence on that charge. The trial court

stated the following:

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The Court is ready to pronounce sentence. Mr. …
in State of Louisiana versus Paul Chris Vidrine, Docket
No. 109307-FA pursuant to your plea agreement,
pursuant to the uh […] the statute R.S. 14:69AB(1) [sic]
and on the Criminal Trespass a plea of guilty in violation
of 14:63 the Court sentences you as follows:….[N]ow as
to the second count, the misdemeanor, Criminal Trespass
of immovable property, in violation of 14:63B the
trespass the maximum sentence of 90 days in the Parish
Jail….. I’m gonna [sic] run it concurrent instead of
consecutive.

Since the criminal trespass charge was not triable by a jury, the proper

mode of appellate review for criminal trespass is by writ rather than appeal. See

La.Code Crim.P. art. 912.1. However, this court will address the error in the

interest of judicial economy. See State v. Fusilier, 06-1438 (La.App. 3 Cir. 4/4/07),

954 So.2d 866. Defendant failed to mention the criminal trespass sentence in his

brief, limiting his argument to the excessiveness of the sentence imposed for illegal

possession of stolen things. Nevertheless, the fact that an argument was not made

does not negate the need for discussion. Ordinarily, this court will only review

issues submitted to the trial court and assigned as errors on appeal, unless the

interest of justice clearly requires otherwise. Rule 1-3, Uniform Rules—Court of

Appeal. In the interest of justice, Defendant’s criminal trespass sentence must be

addressed. Otherwise, the sentence imposed by the trial court remains on a charge

that does not exist.

In Fusilier, the defendant was sentenced based on one felony

conviction and three misdemeanor convictions. However, in the defendant’s brief,

only the felony conviction and two of the three misdemeanor convictions were

addressed. This court did not sever the misdemeanor convictions and relegate

them to disposition on a writ application; rather, in the interest of judicial economy,

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we addressed them on appeal. This court noted that the first circuit has stated the

following in a similar circumstance:

This appeal relates to both defendant’s felony convictions
and his misdemeanor convictions. Normally,
misdemeanor convictions would not be appealable.
Instead, defendant could petition an appellate court for a
writ of review. However, when the charges in the two
bills of information were consolidated, they became a
single “case.” Because defendant was entitled to a jury
trial, upon conviction he was entitled to appeal the “case.”
See La. Const. art. I, § 17; La. C.Cr.P. arts. 706 and
912.1(B); State v. Comeaux, 408 So.2d 1099, 1104 (La.
1981).

Fuselier, 954 So.2d at 868-69 (quoting State v. Swan, 544 So.2d 1204, 1206 n. 3

(La.App.1 Cir. 1989).

Furthermore, Defendant’s criminal trespass sentence must be

addressed because it is so inextricably intertwined with the illegal possession of

stolen things sentence enforced by the trial court. For instance, in State v. Williams,

07-490 (La.App. 3 Cir. 10/31/07), 969 So.2d 744, the defendant was charged with

possession with intent to distribute cocaine, in violation of La.R.S. 40:967, and

with possession of drug paraphernalia, in violation of La.R.S. 40:1023. He pled

guilty to the lesser charge of possession of cocaine and to possession of drug

paraphernalia. On the possession of cocaine charge, he was sentenced to five years

at hard labor, which was to run consecutively to any other sentence that he may

have been subjected to. He was also ordered to pay a $1,500.00 fine plus court

costs. For the possession of drug paraphernalia charge, the defendant was

sentenced to six months in the parish jail and was fined $500.00 plus court costs.

This sentence was ordered by the trial court to run concurrently with the

defendant’s sentence for possession of cocaine, but consecutively to any other

sentence. In Williams, this court found that since the sentences were ordered to run

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concurrently, they were intertwined with each other. Consequently, this court did

not sever the misdemeanor conviction but instead addressed it on appeal.

In this case, the trial court ordered the criminal trespass sentence to

run concurrently, instead of consecutively, with the illegal possession of stolen

things sentence. Due to the trial court’s order, the criminal trespass sentence is so

inextricably intertwined with the illegal possession of stolen things sentence that it

should be addressed on appeal.

In accordance with La.Code Crim.P. art. 872, we find that the trial

court erred by imposing a sentence for a criminal trespass charge that does not

exist. Consequently, we vacate the sentence for criminal trespass.

Additionally, in the interest of judicial economy, we will not sever the

trial court’s ruling and sentence regarding Defendant’s failure to appear; however,

we will address whether the trial court’s ruling and sentence regarding Defendant’s

failure to appear were proper. After sentencing on the criminal charges, the trial

court addressed Defendant’s failure to appear in court. The trial court sentenced

him to sixty days in the parish jail to run consecutively with his other sentences. In

doing so, the trial court was exercising its authority to punish Defendant for direct

contempt of court.

According to La.Code Crim.P. art 21, direct contempt is a

“contumacious failure to comply with a subpoena, summons or order to appear in

court.” In the present case, Defendant failed to appear for sentencing on multiple

occasions between August 2017 and his eventual sentencing in December 2018.

Defendant appeared in court on April 5, 2018 for sentencing, but the hearing was

reset for April 16th. The minutes reflect that Defendant was notified in open court

of the date and time of the reset hearing. Upon Defendant’s failure to appear at the

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April 16th hearing, the court ordered that a bench warrant be issued, Defendant’s

bond forfeited, and no new bond was set. The sentencing was reset for July 5,

2018. Defendant also failed to appear on July 5th, September 6th, and December 6th.

Defendant’s continued failure to appear for sentencing constitutes direct contempt

of court.

Louisiana Code of Criminal Procedure Article 22 provides:

A person who has committed a direct contempt of
court may be found guilty and punished therefor by the
court without any trial, after affording him an opportunity
to be heard orally by way of defense or mitigation. The
court shall render an order reciting the facts constituting
the contempt, adjudging the person guilty thereof, and
specifying the punishment imposed.

Louisiana Code of Criminal Procedure Article 25 provides:

A. A person may not be adjudged guilty of a
contempt of court except for misconduct defined as such
or made punishable as such, expressly by law.

B. Except as otherwise provided in this Article, a
court may punish a person adjudged guilty of contempt
of court in connection with a criminal proceeding by a
fine of not more than five hundred dollars, or by
imprisonment for not more than six months, or both.

At the sentencing hearing, Defendant testified before the court

explaining that he failed to appear because he did not have the means to get to the

court and was currently living in a “dryer office”. The trial judge explained that he

would not consider the failure to appear separately from the initial sentencing. The

judge informed defense counsel that Defendant could make another statement

regarding his failure to appear, or use the statement previously given. Defendant

chose to use the prior statement. The trial court then found Defendant guilty of

failure to appear and sentenced him to sixty days in the parish jail.

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Article 22 of the Louisiana Code of Criminal Procedure provides the

procedural provisions for punishing direct contempt, and states “[t]he court shall

render an order reciting the facts constituting the contempt, adjudging the person

guilty thereof, and specifying the punishment imposed.” Interpreting this phrase,

courts have held that a contempt ruling can stand, despite a failure to recite the

facts constituting the basis for the citation in the order, if such facts are recited in

open court. See Garrett v. Andrews, 99-1929, p. 4 (La.App. 1 Cir. 9/22/00), 767

So.2d 941, 942; DeGruy v. DeGruy, 98-1416, pp. 11-12 (La.App. 4 Cir. 1/27/99),

728 So.2d 914, 920. Although these cases deal with civil contempt, the principle

applies equally to criminal contempt.

The trial court did not recite any facts regarding Defendant’s failure to

appear in its oral ruling; however, the record reflects that Defendant failed to

appear in court multiple times between the trial ending on August 23, 2017, and

the actual sentencing on December 13, 2018. Although the trial judge decided not

to read each instance in which Defendant failed to appear, neither Defendant nor

his counsel objected to the decision. Additionally, statements made by Defendant

reveal that he was aware of his failure to appear in court on more than one

occasion.

Therefore, we find that the trial court substantially complied with the

procedural provisions for direct contempt of court found in La.Code Crim.P. art.

22. The trial court explained that Defendant failed to appear in court on multiple

occasions and offered him two separate opportunities to make a statement in his

defense. The trial court then issued its ruling and found Defendant guilty of failure

to appear which is a direct contempt of the court. The trial court’s sentence was

well within the six months allowed by La.Code Crim.P. art. 25. Consequently, we

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affirm the adjudication of contempt against Defendant and the sixty-day

consecutive sentence imposed for failure to appear in court.

ERRORS PATENT:

There is one error patent regarding the sentence imposed for illegal

possession of stolen things that requires the sentence to be vacated and the case

remanded for resentencing. The trial court’s restitution order is indeterminate in

two respects. First, the restitution order is indeterminate because it is unclear

whether the trial court imposed the restitution as part of the principal sentence or as

a condition of probation. “The Code of Criminal Procedure provides for the

imposition of restitution either as a condition of probation (La. Code Crim.P. arts.

895 and 895.1) or as part of the principal sentence (La. Code Crim.P. art. 883.2).”

State v. Mingo, 15-435, p. 3 n. 4 (La.App. 1 Cir. 9/18/15) (unpublished opinion),

writ denied, 15-1896 (La. 3/14/16), 189 So.3d 1072. When the trial court in the

present case first mentioned restitution at sentencing, it did not state that it was

being imposed as a condition of probation. Eventually, however, the trial court

imposed the following condition of probation:

[R]efrain from all criminal conduct; pay a
restitution fee of $60.00 per month make [a] full and
truthful report at the end of each month and report to
your probation officer as directed; meet your specified
family responsibilities and obligations;… permit the
probation officer to visit you at home, at work and
elsewhere; devote yourself to approved employment or
occupation upon release; refrain from owning or
possess[ing] any firearms or other dangerous
instrumentalities; make reasonable reparation and
restitution to the aggrieved party; refrain from
frequenting unlawful or disreputable places or consorting
with disreputable persons; remain within the jurisdiction
of the Court and get permission from the Court or other
probation officer before making any changes in your
address or employment; submit yourself upon release to

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an available medical, psychiatric mental health or
substance abuse examination or treatment or both when
deemed appropriate by the Court and/or your probation
officer.

The trial court mentioned restitution twice in the above excerpt

regarding the conditions of probation—once in the imposition of a “restitution fee

of $60.00 per month” and once in the imposition of “reasonable reparation and

restitution to the aggrieved party.” The first mention of the restitution fee by the

trial court was likely a misstatement or typographical error by the court reporter. A

monthly probation fee around that amount is typically imposed when a defendant

is placed on probation. La.Code Crim.P. art. 895(A). Although the transcript of

sentencing prevails, the minutes of sentencing indicate the $60.00 per month fee

was a probation fee. The court acknowledges the trial court’s imposition of the

“restitution fee of $60.00 per month” could be interpreted as a payment plan for the

restitution, implying restitution was imposed as a condition of probation. However,

as discussed below, the trial court did not impose a determinate amount of

restitution. Therefore, it is not logical for this court to interpret the trial court’s

statement as a payment plan. Additionally, the trial court’s imposition of

“reasonable reparation and restitution” as a condition of probation could have been

an express statement by the trial court that it intended to order restitution as a

condition of probation or it could have been a routine recitation of the general

condition set forth in La.Code Crim.P. art. 895(A)(7). Considering the

aforementioned, this court finds that it is not clear whether the trial court has

imposed restitution as a condition of probation or as part of the principal sentence.

Further, the trial court failed to set the amount of restitution to be paid.

Whether the restitution was ordered as a condition of probation or as part of the

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principal sentence, the restitution order must be a certain amount determined by the

trial court:

If restitution is ordered as a condition of probation,
it is to be “a reasonable sum not to exceed the actual
pecuniary loss to the victim in an amount certain” [La C.
Cr. P. art. 895.1(A)(1)] and “in an amount to be
determined by the court” [La. C. Cr. P art. 895(A)(7)].
When the trial court fails to set a specific amount to be
paid in restitution as a special condition of probation, the
defendant’s sentence is defective. State v. Wilson, 613
So.2d 234 (La. App. 1 Cir. 1992), writ denied, 93-0533
(La. 3/24/94). 635 So. 2d 238. The court may also order
restitution as part of the principal sentence under La. C.
Cr. P. art. 883.2, in which case a nonspecific restitution
order will render the sentence indeterminate and thus
invalid. State v. Fussell, 06-2595 (La. 1/16/08), 974
So.2d 1223.

State v. Hampton, 52,430, p. 2 n. 2 (La.App. 2 Cir. 11/14/18), 261 So.3d 993, 998,

n. 2, writ denied, 19-287 (La. 4/29/19). 268 So.3d 1029 (alterations in original).

In the present case, the trial court stated the following regarding

restitution:

In addition to that, the restitution, the Court’s gonna
order that there be, if there’s any, that there be restitution
and at the request of your Court appointed attorney you
are… you are reserved unto you the restitution hearing if
there’s a debate between him and… and the other
department [sic]….

In a recent case, this court addressed the trial court’s failure to set an

amount of restitution and found the error required the sentence to be vacated and

the case remanded for resentencing. State v. Loyd, 18-968 (La.App. 3 Cir. 6/5/19),

274 So.3d 112. The restitution order found to be indeterminate in Loyd and in the

case cited by Loyd is similar to the restitution order in the present case.

Addressing the issue, Loyd stated:

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We further find that in sentencing Defendant, the
trial court failed to set the amount of restitution to be paid
to the victim. Specifically, the trial court stated:

Order that you pay restitution to Ms.
[Spotsville] for the monetary amount that
she paid you, and as well as any out of
pocket expenses that were not covered by
insurance. Court will allow you to res - -
reserve the right to a restitution hearing if
you and your par - - probation or parole
officer cannot agree on that amount.

In State v. Fussel, 06-324 (La.App. 3 Cir. 9/27/06),
941 So.2d 109, restitution was imposed pursuant to
La.Code Crim.P. art. 883.2, as it was in the instant case.
On error patent review, this court found the defendant’s
sentence was indeterminate due to the trial court’s failure
to set the amount of restitution. The trial court stated in
pertinent part:

I’m also gonna [sic] order you to pay all
restitution involved with respect to - - if
there is any - - I order you to pay for any and
all medical counseling and health expenses
incurred by the victim or her family, as a
consequence of your conviction for these
offenses. That’s also gonna [sic] be - - it’s
an indetermined amount, it’s just gonna [sic]
be generally made in the judgment. I don’t
know what it’s gonna [sic] be. I don’t even
know if the State’s gonna [sic] make an
application for that.

....

And I’ve already ordered you to pay
for any and all medical counseling or other
health expenses incurred by the victim or
her family as a consequence of your
commission of those particular offenses in
that case.

Fussell, 941 So.2d at 139.

This court vacated the defendant’s sentences and
remanded the case for resentencing with the instruction
that if restitution was imposed, the trial court must
specify the amount.

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The supreme court agreed, stating:

We agree with the Third Circuit Court of
Appeal that, due to a nonspecific restitution order,
the sentences imposed upon Defendant by the trial
court were indeterminate and, thus, invalid. See
La. C.Cr.P. art. 879 (stating that “[i]f a defendant
who has been convicted of an offense is sentenced
to imprisonment, the court shall impose a
determinate sentence”); La.C.Cr.P. art. 883.2.
Accordingly, this case must now be remanded for
resentencing on all convicted counts.

State v. Fussell, 06-2595, p. 25 (La. 1/16/08), 974 So.2d
1223, 1238 (footnote omitted).

Louisiana Code of Criminal Procedure
Article 883.2 provides in pertinent part:

A. 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.

....

C. The court shall order that all restitution
payments be made by the defendant to the victim
through the court’s designated intermediary, and in
no case shall the court order the defendant to
deliver or send a restitution payment directly to a
victim, unless the victim consents.

Text of par. D effective until August 1, 2019.

D. Notwithstanding any other provision of
law to the contrary, if the defendant is found to be
indigent and therefore unable to make restitution in
full at the time of conviction, the court may order a
periodic payment plan consistent with the person’s
financial ability.

Text of par. D effective August 1, 2019.

D. Notwithstanding any other provision of
law to the contrary, if the defendant is found to be

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indigent and therefore unable to make restitution in
full at the time of conviction, the court may order a
periodic payment plan pursuant to the provisions
of Article 875.1.

Accordingly, Defendant’s sentence is
vacated and the case remanded for resentencing in
accordance with La.Code Crim.P. art. 883.2 with
instructions that if restitution is imposed, the
amount must be specified.

Loyd, 274 So.3d at 120-21 (fourth alteration ours) (footnote omitted).1

As in Loyd and Fussell, this court finds the restitution order in the

present case is indeterminate.

For these reasons, the sentence imposed for illegal possession of

stolen things valued at $1,500.00 or more is vacated and the case remanded for

resentencing. The trial court must specify the amount of restitution if it is imposed.

Additionally, if the trial court places Defendant on probation, the trial court must

specify whether the restitution is imposed as a condition of probation pursuant to

La.Code. Crim.P. art. 895.1 or as part of Defendant’s principal sentence pursuant

to La.Code. Crim.P. art. 883.2.

ASSIGNMENT OF ERROR:

Defendant alleges his sentence is excessive because the trial court did

not suspend all the sentences. However, this assignment of error is moot

considering this court’s order to vacate the sentence imposed and remand for

resentencing because of the error patent discussed above.

1
In Loyd, this court noted that in Fussell, 974 So.2d 1223, the supreme court agreed with
this court’s ruling on the restitution issue, but the supreme court reversed this court on other
grounds. Loyd, 274 So.3d at 121, n.2.

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V.

CONCLUSION

For the foregoing reasons, the sentence for illegal possession of stolen

things valued at $1,500.00 or more is vacated and the case is remanded for

resentencing. In the event restitution is imposed by the trial court, the amount

must be specified. Additionally, if Defendant is placed on probation, the trial court

must specify whether the restitution is imposed as a condition of probation

pursuant to La.Code Crim.P. art. 895.1 or as part of Defendant’s principal sentence

pursuant to La.Code Crim.P. art. 883.2. The sentence imposed by the trial court

for criminal trespass is vacated and the sentence imposed for contempt of court is

affirmed.

SENTENCE FOR ILLEGAL POSSESSION OF STOLEN
THINGS VACATED AND REMANDED FOR RESENTENCING;

SENTENCE FOR CRIMINAL TRESPASS VACATED;

CONVICTION AND SENTENCE FOR CONTEMPT OF
COURT AFFIRMED.

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