State of Louisiana v. Morgan E. Douglas

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-752

STATE OF LOUISIANA

VERSUS

MORGAN E. DOUGLAS

**********

APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-2021-670
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

**********

GARY J. ORTEGO
JUDGE

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Court composed of Elizabeth A. Pickett, Chief Judge, Sharon Darville Wilson, and
Gary J. Ortego, Judges.

CONVICTION AFFIRMED; SENTENCE
AFFIRMED, IN PART, AND VACATED,
IN PART, CASE REMANDED, WITH
INSTRUCTIONS.

Paula Corley Marx
Louisiana Appellate Project
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Morgan E. Douglas

Hon. James R. Lestage
District Attorney
Thirty-sixth Judicial District Court
P. O. Box 99
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

ORTEGO, Judge.

On June 9, 2021, Defendant, Morgan E. Douglas, was charged by bill of

information with one count of aggravated arson, a violation of La.R.S. 14:51, and

one count of obstruction of justice, a violation of La.R.S. 14:130.1(A)(1), (A)(4),

and (B)(1). On August 17, 2022, Defendant pled guilty to one count of obstruction

of justice, and the State dismissed the remaining count of aggravated arson. As part

of the plea agreement, the State agreed to a twenty-year cap on Defendant’s sentence.

Following the sentencing hearing on September 2, 2022, the trial court sentenced

Defendant to twenty years at hard labor, and further ordered Defendant to pay

$25,000.00 in restitution to the victim’s two minor children, with the restitution to

be paid while Defendant was on parole. On September 2, 2022 Defendant filed a

Motion to Reconsider Sentence, which was denied by the trial court.

On September 15, 2022, Defendant filed a motion for appeal, which was

granted by the trial court. Defendant is now before this court alleging one

assignment of error:

1) that the trial court abused its discretion in imposition of restitution.

For the reasons discussed below, we affirm Defendant’s conviction, affirm

Defendant’s sentence, in part, vacate Defendant’s sentence, in part, and remand this

case for a full restitution hearing.

FACTS

Since this case was resolved by Defendant’s voluntary plea of guilty, the facts

in this record were not fully developed. However, the record shows that, at the

sentencing hearing, Detective Jeremy Swisher testified that on November 20, 2020,

he responded to a call regarding a vehicle fire at a dead-end road in the DeQuincy,

Louisiana, area. A body found in the vehicle was identified through DNA analysis

as Lexi Doga, but her cause of death could not be determined due to the severity of

the burns she sustained. The autopsy report indicated Ms. Doga had 9,700 ng per

milliliter of meth in her body. Detective Swisher testified and agreed with the

autopsy report that indicated the level of meth in Ms. Doga’s body could have been

a lethal dose. The detective read the following from the autopsy report:

“Methamphetamine levels are extremely high, and an
overdose is possible cause of death, however, extensive
charring precludes identification of potential lethal
injuries including strangulation, or head injuries. The
body may have been burned to cover-up an overdose, but
a cover-up of a potential homicide cannot be ruled out.
Likely the decedent took the methamphetamine on her
own making an accidental overdose possible, but other
possibilities remain. Due to the uncertainties caused by
extensive burning of the body, the best cause of death, and
manner of death, may be undetermined.”

During the investigation, via traffic cameras and license plate readers, the

police learned that Dixon Fife was driving a red truck, which was seen driving in

front of the vehicle in which Ms. Doga was found. Law enforcement contacted Fife

on November 21, 2020, within twenty-four to thirty-six hours of Ms. Doga being

found. Fife told police that he, Defendant, and another co-defendant, Roberts,

contacted Ms. Doga to take drugs and have sex. After they had all taken meth,

Roberts had sex with the Ms. Doga, and then Defendant went into the room with

Ms. Doga. Fife told police that he could see Ms. Doga on the bed when Defendant

stepped out of the room and that he could tell Ms. Doga was fine. When Fife went

back into the room about an hour later, Ms. Doga was on the floor and appeared to

be dead.

Fife told police that he took a Seroquel and passed out. When he awoke, Fife

asserted that Ms. Doga appeared to have been wiped down and dressed in her

clothes. Fife assisted in putting Ms. Doga in the passenger seat of her vehicle. Since

Defendant and Roberts were from out of state working in hurricane-damage repair,

Fife stated that he was the only one familiar with the area. Fife and Roberts drove
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in Fife’s red pickup truck while Defendant drove the vehicle containing Ms. Doga’s

body. Fife and Roberts drove to Gillis Grocery to purchase a gas can and gas. All

three then drove to Alston Cemetery Road and torched the car containing Ms. Doga’s

body. According to Fife, they believed Ms. Doga was already dead.

The State Fire Marshal’s Office and the Calcasieu Parish Sheriff’s Office

conducted a search warrant at the residence where the activity had occurred.

Defendant and Roberts were located at the residence and were arrested. Detective

Swisher iterated that the co-defendants, Defendant and Roberts, were charged with

aggravated arson and obstruction of justice in Beauregard Parish and faced similar

charges in Calcasieu Parish. As far as the detective knew, no one was being

prosecuted for Ms. Doga’s murder.

Detective Swisher testified that Fife and Ms. Doga messaged each other about

taking drugs and having sex, stating:

Messages between Dixon Fife and Ms. Doga basically state that Ms.
Doga was short on money for the quality of illegal substance that she
was going to be provided. Fife suggested she could pay a portion in
cash and perform sexual acts on his boss, Roberts, in exchange.

Fife then suggested Ms. Doga let Fife and Roberts have group sex with
her, and quoting, “We will supply plenty of dope.”

....

“All the dope you can do? We gone [sic] see just how freaky you can
be.”

On cross-examination, Detective Swisher testified that the forensic pathology

report stated Ms. Doga tested negative for carbon monoxide. The detective agreed

that some carbon monoxide should have been detected if Ms. Doga was alive when

placed in the vehicle. When asked if it was clear that Ms. Doga was dead when the

car was burned, the detective responded, “I would say, at that point, yes, sir.”

3

The trial court questioned the detective regarding the Department of Public

Safety and Corrections Incident Investigations Report. The detective testified that

according to the report, Defendant told police that he went to sleep early that night

and was not aware of any visitors or any incidents. Additionally, Detective Swisher

testified that Fife initially told police that when he found Ms. Doga on the floor,

there were “marks around her neck” and that Fife had stated, “I believe like she had

been choked.” Detective Swisher further testified that according to “Mr. Fife and

Mr. Roberts, [Defendant] was the last one to be around Ms. Doga when she was

alive [.]”

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

that there are errors patent involving the trial court’s restitution order. However,

these errors patent are argued under the assigned error. As such, we will address

same there.

ASSIGNMENT OF ERROR

In his sole assignment of error, Defendant contends the trial court erred in

ordering restitution be paid to Ms. Doga’s minor children, through the court

appointed curator. Before discussing the merits of this assignment, we will discuss

the arguments set forth in the State’s response brief regarding whether Defendant

can properly raise this assignment of error.

Appeal of Defendant’s Ordered Restitution

The State contends Defendant’s claims under this assigned error are not

reviewable for several reasons. First, the State contends that Defendant expressly

waived his right to appeal when he entered into his plea agreement. Second, the

State asserts that Defendant is precluded from seeking review of a sentence imposed
4

in conformity with a plea agreement. According to the State, none of the issues

raised in Defendant’s appeal are “errors patent,” thus, none are reviewable as part of

this court’s error patent review. Finally, the State asserts that Defendant is precluded

from making an argument on appeal that was not set forth in his Motion to

Reconsider Sentence.

At the guilty plea proceeding, the State set forth the plea agreement as follows:

Your Honor, on behalf of the State, Richard Morton. It’s my
understanding we’re here today and we have a plea proposal for the
Court whereby Mr. Douglas, with his attorney, would be pleading
guilty straight-up, so to speak, as to Count 2, Obstruction of Justice
pertaining to a second-degree murder investigation as set forth in the
bill of information. Actually, the amended bill of information filed
herein.

If that plea is made and accepted, we have several agreements.
One, that we would dismiss the aggravated charge, which is Aggravated
Arson in a Crime of Violence.

Obstruction of Justice is not a crime of violence; it’s not an
aggravated charge as the count is - - customarily is said. So he is
pleading guilty straight-up to Count 2, Obstruction.

We have agreed to a 20-year cap and to have a sentencing hearing
and let the Court [to] decide the sentence, anywhere between the
minimum and the maximum of 20 years. So the minimum would be
zero and the max would be 20 under this plea agreement.

We’ve also agreed the State would waive any filing or any
habitual offender proceeding, if it was applicable. I’m not sure if it
would be applicable. I’m not sure Mr. Douglas has any prior felony
convictions that would be in play for habitual offender law.

He would have to pay whatever fees to the public defender office,
as ordered by the Court. Mr. Douglas would also be waiving all rights
to appeal, post-conviction relief and federal habeas corpus to the fullest
extent allowed by law, and he would also agree to testify truthfully as
to all related cases, including his own matter.

The intent is to have a sentencing hearing. We already have one
set for Friday this week involving the two codefendants, Dixon Fife and
Michael Roberts, and I’m hoping we can also add Mr. Douglas to that
hearing proceeding [sic] this Friday and have the sentencing hearing.

5

It’s my understanding the Court will then take the matter under
advisement, review the records and information received at the
sentencing hearing, and then set a date later for the actual imposition of
sentence.

Defense counsel agreed with the State’s recitation of the plea agreement.

When the trial court questioned Defendant regarding the plea agreement, the trial

court stated the following about the waiver of appeal rights, to wit:

And normally if you were to go to trial and at the end of the trial
you didn’t like the way it turned out, you would have the right to take
an appeal of the case or take an application for post-conviction relief or
to apply for what’s called “habeas corpus relief” in state or federal
court.

But it’s my understanding that as part of the plea agreement in
this matter, to the extent allowed by law, you are waiving those appeal,
post-conviction and habeas corpus rights.

Defendant’s written plea agreement states the parties agreed to a twenty-year

sentencing cap. As for Defendant’s waiver of appeal rights, the written agreement

states:

DEFENDANT MUST WAIVE ALL RIGHTS TO APPEAL, POST-
CONVICTION RELIEF, AND FEDERAL HABEAS CORPUS
PROCEEDINGS, TO THE FULLEST EXTENT ALLOWED BY
LAW. IF THIS PROVISION IS DEEMED UNLAWFUL, THEN
THIS PROVISION SHALL BE NULL AND VOID AND THE
REMAINDER OF THE PLEA AGREEMENT SHALL REMAIN IN
FULL FORCE AND EFFECT.

Regarding restitution, and even though the written plea agreement is silent as

to restitution, the trial judge ordered Defendant to pay $25,000.00 in restitution to

Ms. Doga’s minor children over his parole period. After imposing sentence, the trial

court did not inform Defendant as to his right to appeal or the time limitations for an

appeal. As for his post-conviction rights, the trial court stated:

You are further advised that pursuant to Code of Criminal
Procedure Article 930.8, you have to file for application for post-
conviction relief within two years after the judgment of conviction and
sentence becomes final, or under the application provisions of law the

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right to do so is lost to you. To the largest extent allowed by law, you’ve
waived those post-conviction rights as part of the plea agreement in this
matter, but to the extent that you cannot waive them, you still have the
two-year window.

“[A]ppeals are favored[,] and there is a constitutional right in Louisiana to an

appeal. State v. Simmons, 390 So.2d 504 (La.1980).” State v. Adger, 35,414, p. 5

(La.App. 2 Cir. 12/5/01), 803 So.2d 304, 308, writ denied, 03-2458 (La. 10/1/04),

883 So.2d 997. Louisiana Code of Criminal Procedure Article 881.2(A)(2) states:

“The defendant cannot appeal or seek review of a sentence imposed in conformity

with a plea agreement which was set forth in the record at the time of the plea.” This

court has consistently held that it is “not automatically precluded from reviewing a

sentence unless the plea agreement provides a specific sentence or sentencing cap.”

State v. Curtis, 04-111, p. 2 (La.App. 3 Cir. 8/4/04), 880 So.2d 112, 114 (emphasis

added) (citing State v. Pickens, 98-1443 (La.App. 3 Cir. 4/28/99), 741 So.2d 696,

writ denied, 99-1577 (La. 11/5/99), 751 So.2d 232, and writ denied, 01-2178 (La.

4/19/02), 813 So.2d 1081), writ denied, 04-2277 (La. 1/28/05), 893 So.2d 71. In

State v. Desadier, 47,991, p. 4 (La.App. 2 Cir. 4/10/13), 113 So.3d 1193, 1195

(citations omitted), the second circuit likewise stated, “Where a specific sentence or

sentencing cap has been agreed upon as a consequence of a plea bargain, . . . a

sentence imposed within the agreed range cannot be appealed as excessive.”

As demonstrated by the jurisprudence, La.Code Crim.P. art. 881.2(A)(2)

applies to both specific sentences and sentencing caps. In the present case, the plea

agreement, which was set forth in the record at the time of the plea, resulted in a

sentencing cap of twenty years. Although Defendant was sentenced in conformity

with the agreed upon sentencing cap, the restitution ordered by the trial court was

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not part of the plea agreement. Thus, La.Code Crim.P. art. 881.2(A)(2) does not

preclude Defendant from seeking review of the trial court’s restitution order on

appeal.

Consequently, we must decide whether Defendant otherwise waived his right

to appeal any part of the trial court’s imposition of restitution. Specifically, this

court must decide whether in the plea form and/or the guilty plea proceeding,

Defendant explicitly waived his right to appeal.

In State v. Miller, 12-1401 (La.App. 3 Cir. 6/5/13), 114 So.3d 670, the

defendant appealed claiming his sentence was excessive. The State argued that the

defendant was precluded from appealing his sentence because he waived his right to

appeal all non-jurisdictional errors when he entered into an open-ended plea

agreement. The defendant argued his appeal was not precluded because he pled

open-ended. Although not noted in the opinion, the plea form in Miller stated that

“I realize that by pleading guilty I stand convicted of the crime(s) charged . . . and

waive . . . any right to appeal from the decision of the court.” In Miller, 114 So.3d

at 670, at 673, this court stated:

Finally, in State v. Cosey, an unpublished opinion bearing docket
number 11-774 (La.App. 3 Cir. 2/1/12) 2012WL280632, this court
noted that “when a defendant pleads guilty pursuant to a plea bargain,
jurisprudence traditionally holds that he is waiving only the right to
appeal his conviction.” Id. at p. 5.

This court concluded in Miller that the defendant was not precluded from appealing

his sentence.

In State v. Pickens, 98-1443, p. 8 (La.App. 3 Cir. 4/28/99), 741 So.2d 696,

702, writ denied, 99-1577 (La. 11/5/99), 751 So.2d 232, and writ denied, 01-2178

(La. 4/19/02), 813 So.2d 1081, this court acknowledged that “when a defendant

pleads guilty pursuant to a plea bargain…he is only waiving his right to appeal his

conviction.”
8

In State v. Colar, 04-1003 (La.App. 3 Cir. 2/2/05), 893 So.2d 152, the

defendant, on appeal, asserted his sentence was excessive. The State argued the

defendant was not entitled to appeal his sentence because it was imposed in

conformity with a plea agreement. The State relied on Pickens,741 So2 696. In

response to the State’s reliance on Pickens, this court stated:

This argument is incorrect. In an en banc opinion in State v. Pickens,
98-1443 (La.App. 3 Cir. 4/28/99), 741 So.2d 696, writ denied, 99-1577
(La.11/5/99), 751 So.2d 232, writ denied, 01-2178 (La.4/19/02), 813
So.2d 1081, this Court held that “review is required in open-ended pleas
as here, because appeals are favored and there is a constitutional right
in Louisiana to an appeal. State v. Simmons, 390 So.2d 504 (La.1980).”
Id at 702. This Defendant entered into an open-ended plea; therefore,
he is entitled to appellate review of his sentences. Additionally, any
assertion that Defendant waived his appeal when he entered into the
plea agreement is also incorrect. In Pickens, 741 So.2d at 701, this court
explained waiver of the right to appeal as follows:

A defendant may waive his right to appeal, either
expressly or impliedly, but that waiver must be knowing
and voluntary. An implied waiver occurs when a
defendant is told of his right to appeal by a trial court, but
he chooses not to take the appeal within the time limits
prescribed by law. It is express if a defendant is told that
he has the right to appeal and he says in court, “I waive my
right to appeal.”

In addition, when a defendant pleads guilty pursuant to a plea
bargain, jurisprudence traditionally holds that he is waiving only the
right to appeal his conviction. State v. Wilburn, 591 So.2d 1255, 1256
(La.App. 3 Cir. 12/18/91), writ denied, 613 So.2d 970 (La.1993); State
v. Lawson, 95-1604, (La.App. 1 Cir. 12/20/96), 684 So.2d 1150, writ
denied, 97-191(La.6/13/97); 695 So.2d 986.

At the time Defendant in the case sub judice pled guilty, the trial
court informed him of the following regarding his right to appeal: “And
if you plead guilty, you can’t appeal; because if you plead guilty, you
can’t appeal your guilty plea to the appellate court. So do you
understand that if you plead guilty, you give up these rights I have
explained to you?” The court was silent on the issue of the appeal of his
sentence. Defendant did not specifically waive his right to appeal his
sentences.

Id. at 155 (emphasis added).

9

In the instant case, the transcript and the waiver of rights form are silent as to

the waiver of the right to appeal Defendant’s sentence. Considering the above, we

find Defendant waived the right to appeal his conviction only. Consequently, the

waiver did not preclude Defendant from appealing the trial court’s restitution order.

Finally, the State argues Defendant waived his right to raise any issue

regarding restitution since he failed to object at the sentencing hearing and failed to

assert any claim regarding restitution in his motion to reconsider sentence. La.Code

Crim.P. art. 881.1(E), State v. Arndt, 10-257 (La.App. 3 Cir. 10/6/10) (unpublished

opinion); and State v. Mealancon, 21-119 (La.App. 4 Cir. 12/22/21), 334 So.3d 792,

writ denied, 22-14 (La. 2/22/22), 333 So.3d 445. Defendant’s motion to reconsider

asked the trial court to reduce Defendant’s sentence and place Defendant on

probation noting that he was twenty-four years old with no criminal record and that

he is entitled to prove to the trial court that his actions do not reflect his true

personality. Further, Defendant’s motion asserted that if placed on supervised

probation, Defendant would abide by all conditions set forth by his probation officer

and seek gainful employment. While it is true that Defendant failed to mention

restitution in his oral objection at sentencing and in his written motion to reconsider,

we note, however, that in State v. Ross, 18-453 (La.App. 3 Cir. 3/13/19), 269 So.3d

1052, writ denied, 19-581 (La. 1/22/20), 291 So.3d 1041, this court addressed Ross’s

claim that the trial court’s order of restitution was not supported by the record despite

the fact that Ross’s sole objection to the sentence imposed was a motion to

reconsider sentence that asserted a general excessiveness claim. As such, while

Defendant is precluded from appealing his conviction, we find that he is allowed to

have this court review his sentence, namely the trial court’s ordered restitution.

10

Trial Court’s Ordered Restitution

At the sentencing proceeding, the trial court noted that all three co-defendants

were originally arrested in Calcasieu Parish for the second-degree murder of Ms.

Doga, an offense that carries a mandatory life sentence. Thus, the trial court noted

that the applicable penalty provision for obstruction of justice is section (B)(1),

which provides for a fine of up to $100,000.00 and/or imprisonment at hard labor

for not more than forty years. Pursuant to a plea agreement, the trial court noted that

the State agreed to a sentencing cap of twenty years at hard labor. In preparation for

sentencing, the trial court stated that it reviewed the entire suit records for all co-

defendants, including all discovery provided by the State, the victim impact

statements, letters from relatives and friends of the defendants, the evidence

introduced at the sentencing hearing, and all of the factors listed in La.Code Crim.

P. art. 894.1.

In its very detailed reasons for the sentence imposed, the trial court noted the

extremely heinous nature of the offense. The court also noted that even though Ms.

Doga appeared to be at least a partially willing participant in drug use, the defendants

took advantage of her vulnerability. As for the violent nature of the offense, the

court noted that there was “certainly violence committed in the obstruction-of-justice

claim in such a heinous manner in destroying the body of [Ms. Doga] in this matter.”

Additionally, the trial court specifically noted that there was extensive

testimony at the sentencing hearing regarding the effects this has had on Ms. Doga’s

family. In discussing the significant permanent injury or significant economic loss

to Ms. Doga or her family, the trial court stated:

Certainly, you deprived [Ms. Doga’s] family of appropriate
burial and grieving process. You created a significant economic loss
on these two young children, now ages 7 and 4 of [Ms. Doga,] by taking
away one of their parents and the wage-earning ability of that parent for
the rest of those children’s lives.
11

As another aggravating factor, the trial court noted that none of the three

defendants attempted to administer CPR or lifesaving measures, nor did any of them

call 911, an ambulance, a hospital, or law enforcement. The trial court noted that

the defendants “did nothing but immediately try to cover up their actions and

crimes.”

The trial court summarized the aggravating factors as follows:

Certainly, the aggravating factors in this matter is [sic] that the
defendants facilitated this set of events, knew of [Ms. Doga’s]
vulnerability to substance abuse, actively sought out . . . [Ms. Doga]
and provided [her] with those drugs, which may well have been the
cause of her death. We’ll never know for sure what was the cause of
death in this matter.

When discussing the mitigating factors, the trial court noted that although

Defendant has no known criminal history, that he was the last person to see Ms.

Doga alive. The trial court further stated:

[F]rom the evidence presented, [Ms. Doga] was discovered with marks
around her neck, with her hands folded across her chest near her neck,
and appearing as if she had been choked.

Whether or not Mr. Douglas committed some crime that actually led to
the death or murder of Ms. Doga, we will never know, but certainly
that’s a factor to be considered in offsetting Mr. Douglas’ otherwise
lack of a criminal history in this matter.

After citing jurisprudential authority for the term of imprisonment it would

impose, the trial court sentenced the defendants as follows:

Considering all of those individual factors for each of the
defendants separately, the Court will sentence each of the defendants to
serve 20 years at hard labor with the Department of Corrections. I’m
also ordering not a fine, but victim restitution by each defendant in the
amount of $25,000.00 to be payable over time on parole in trust for the
benefit of the minor children of [Ms. Doga] in this matter, with the
grandmother, Jamie Doga Cooley, as the trustee of that victim
restitution amount.

Whether or not that’s actually ever paid under the current
criminal statutes of Louisiana, I do not know, but it would provide some
form of justice to the [Ms. Doga’s] family in this matter.

12

First, Defendant correctly asserts that restitution cannot be imposed as a

condition of parole. It is well settled that the trial court lacks authority to impose

conditions of parole. State v. Franco, 08-1071 (La.App. 3 Cir. 4/1/09), 8 So.3d 790,

writ denied, 09-1439 (La. 2/12/10), 27 So.3d 843; State v. Kotrla, 08-364 (La.App.

3 Cir. 11/5/08), 996 So.2d 1224. In this case, the trial court ordered restitution to be

paid “over time on parole. We find it clear that the trial court did not impose

restitution as a condition of parole. Thus, this assertion is misguided.

Defendant next argues that there was no evidence of an actual pecuniary loss

to anyone that can be considered a “victim” in this case. Defendant acknowledged

that Ms. Doga’s mother, Jamie Cooley, testified that she spent about $30,000

securing custody of and visitation rights for Ms. Doga’s two children. However,

Defendant asserts this claim is unsupported and “highly attenuated from the crime

of conviction.” Here, the “victims” who were awarded restitution in this case were

Ms. Doga’s minor children, not her mother. Thus, this argument by Defendant has

no bearing on this issue.

Next, Defendant questions whether Ms. Doga’s minor children can be

considered “victims” for the purposes of restitution. To make this determination, it

is necessary to determine who, if anyone, could be considered the victim of the

offense to which Defendant pled, namely obstruction of justice. Defendant argues

in brief, the following:

Morgan Douglas pled guilty to obstruction of justice in that he,
along with two others, placed Ms. Doga’s body in a car and set the car
on fire, burning the body inside. There is no proof that the decedent,
Ms. Doga, was a victim of murder. The cause and manner of death
were listed as “Undetermined” by the coroner. Tragically, Ms. Doga
may have died of an accidental drug overdose. Extremely high levels
of methamphetamine (9700 ng/mL) were found in Ms. Doga’s blood
during autopsy.

13

Defendant pled guilty to obstruction of justice, which was charged in the bill

of information as follows:

On or about November 20, 2020, MORGAN E. DOUGLAS did
willfully and unlawfully violation R.S. 14:130.1(A)(1), (A)(4), and
(B)(1), Obstruction of Justice, by tampering with evidence and/or
attempting to persuade another to testify falsely with the specific intent
to distort the results of a criminal investigation pertaining to the Second
Degree Murder of Lexi Brook Doga, (a felony).

While obstruction of justice can be a victimless crime, here, Ms. Doga was

the victim in the second-degree murder investigation obstructed by Defendant.

Further, because of Defendant’s actions to obstruct the second-degree murder

investigation, the cause of Ms. Doga’s death could not be determined. Thus, we find

that, as the victim of the second-degree murder under investigation, Ms. Doga can

clearly be considered the victim of the obstruction of justice offense related to such

investigation.

Having found that Ms. Doga can be considered the victim of the obstruction

of justice offense committed by Defendant, the next question is whether her minor

children can be granted restitution. 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.

In State v. Shell, 16-873 (La.App. 3 Cir. 4/12/17), 216 So.3d 853, the trial

court awarded restitution to the family of a victim of negligent homicide. The

restitution was imposed pursuant to La.Code Crim.P. art. 883.2. Therefore, in this

matter, a statutory and jurisprudential basis exists for Ms. Doga’s minor children to

be considered victims for the purposes of restitution.

14

Moreover, additional statutory authority for finding that Ms. Doga’s minor

children are victims for the purposes of restitution exists in La.R.S. 46:1844(M).

That provision states, in pertinent part, states (emphasis added):

M. Victims’ right to seek restitution.

(1) If the defendant is found guilty, the court or committee on
parole shall require the defendant to pay restitution to the appropriate
party in an amount and manner determined by the court.

For purposes of La.R.S. 46:1844(M)(1), a victim is defined as (emphasis added):

(15) “Victim” means a person against whom any of the following
offenses have been committed:

(a) Any homicide, or any felony offense defined or enumerated
in R.S. 14:2(B).

(b) Any sex offense or human trafficking-related offense as
defined or enumerated in R.S. 46:1844(W).

(c) The offenses of vehicular negligent injuring (R.S. 14:39.1)
and first degree vehicular negligent injuring (R.S. 14:39.2).

(d) Any offense against the person as defined in R.S. 14:29
through 63.3.

(e) Any offense committed against a family or household
member as defined in R.S. 46:2132 or dating partner as defined in R.S.
46:2151.

(f) The offense of violation of protective orders (R.S. 14:79).

(g) The offenses of voyeurism (R.S. 14:283.1), Peeping Tom
(R.S. 14:284), and unlawful communications (R.S. 14:285).

(h) Any other offense which is a felony committed against any
natural person.

La.R.S. 46:1842 (emphasis added).

Here, La.R.S. 46:1842(15)(h) applies to this case as obstruction of justice is a

felony, and that felony was committed against a natural person, Ms. Doga. In State

v. Karam, 02-163, (La.App. 3 Cir. 7/31/02), 834 So.2d 1003, the trial court ordered

Karam to pay counseling costs to the victims’ families as part of his sentences for

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three counts of first-degree murder. On appeal, Karam claimed the trial court erred

in failing to specify the amount of restitution. Finding merit to Karam’s argument,

this court vacated the sentences and remanded for resentencing and the imposition

of restitution in accordance with La.R.S. 46:1844(M)(1).

Given the above, we find that Ms. Doga’s minor children are proper victims

for purposes of being awarded restitution pursuant to La.Code Crim.P. Art. 883.2;

Shell, 216 So.3d 853; La.R.S. 46:1842(15)(h); Karam, 834 So.2d 1003.

Next, Defendant argues that even if Ms. Doga’s minor children can be

considered victims for purposes of restitution, the trial court erred in failing to

determine the actual pecuniary loss suffered by the minor children. Defendant

argues the following:

The court speculated that restitution in the amount of $25,000
was owed by Morgan Douglas to the minor children of Ms. Doga in
this matter. But no evidence of actual pecuniary loss to a victim was
established as required by La.Code Crim.P. art. 883.2. Restitution is
for reparation and is not punitive in nature. Restitution does not cover
emotional loss.

We note that the loss of support from a wage-earning parent is considered a

pecuniary loss. In Johnson v. CLD, Inc., 50,094, p. 12 (La.App. 2 Cir. 9/30/15), 179

So.3d 695, 703 (emphasis added), the second circuit, in the context of loss of

consortium, iterated:

These elements of damages include such pecuniary elements as loss of
material services and support and such nonpecuniary components as
loss of love, companionship, affection, aid and assistance, society,
sexual relations, comfort, solace, and felicity.

In Young v. Ford Motor Co., Inc. 595 So2d 1123, 1128, fn. 7 (La.1992) the

Louisiana Supreme Court states:

“”Pecuniary” is defined is Webster’s as: 1: consisting of or measured in
money and 2: of or relating to money.” Webster’s Eighth New Collegiate
Dictionary 837 (1979).”

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However, despite our affirmation of the trial court’s ordering Defendant to

pay restitution to Ms. Doga’s minor children, we find that the record is insufficient

to support the amount of the trial court’s restitution award. Although the trial court

mentioned the economic hardship suffered by the minor children, because of the loss

of a wage-earning parent, no specific evidence was introduced as to the children’s

actual pecuniary loss. In State v. Smith, 53,827 (La.App. 2 Cir. 3/3/21), 315 So.3d

407, the second circuit found a restitution award was not supported by the record.

Smith was convicted of two counts of attempted second degree murder, aggravated

battery, second degree robbery, carjacking, aggravated criminal damage to property,

and armed robbery. Smith was ordered to pay $25,000 in restitution in connection

with the criminal damage to property charge. Finding the restitution award was not

supported by the record, the Smith court stated:

In the present matter, we find that while the damages may well
exceed $25,000, such a restitution order is speculative without specific
information regarding the damage to the Urban vehicle and home or
medical expenses and is therefore not supported by the evidence in the
record as it currently exists. The record does not reflect receipts for the
repair of the Urban home or vehicle due to damage from Smith’s
actions or evidence of their medical expenses, and without such, this
court is unfortunately in no position to determine whether such
restitution is appropriate under the circumstances.

Smith, 315 So.3d at 422.

In State v. Perry, 15-510, p. 1 (La. 2/5/16), 183 So.3d 509, 509, the supreme

court stated the following:

Writ granted. The order of the court of appeal is reversed and
the trial court’s ruling awarding restitution to the victim is reinstated.
Defendant pleaded guilty as charged to theft over $1,500 pursuant to a
plea agreement, according to which he agreed to pay restitution in an
amount to be determined by the court after a hearing. Restitution cannot
always be determined with exactitude, and a trial court therefore has
great discretion in setting the amount, as long as the trial court complies
with La.C.Cr.P. art. 883.2. Here, the state presented witnesses at the
hearing to establish the extent of the losses incurred as a result of
defendant’s theft, and a review of that testimony indicates that the trial

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court did not abuse its discretion in finding “actual pecuniary loss” and
fixing the amount of restitution due.

Since the record in the present case does not contain the type of evidence

discussed in Smith, Id., and Perry, Id., we find the record is insufficient to support

the amount set in the trial court’s restitution order. In Smith, 315 So.3d 407, at 422,

the second circuit “remanded for resentencing so that the trial court may undertake

the prescribed steps to determine and substantiate the amount of restitution

awarded.”

In State v. Joseph, 05-186 (La.App. 3 Cir. 11/2/05), 916 So.2d 378, this court

discussed remanding a case for a restitution hearing stating:

In Assignment of Error number 3, the defendant argues that when
the case is remanded for resentencing, a hearing should be held, during
which the parties should be given an opportunity to present evidence
concerning the amount of restitution owed. The record does not indicate
that a restitution hearing has been held. In State v. Sandifer, 359 So.2d
990 (La.1978), the supreme court remanded the case for a restitution
hearing when one of the defendants contested the amount of restitution
awarded. The Louisiana Supreme Court noted:

The record is silent as to the trial judge’s reasons for
ordering restitution far in excess of the value of the
merchandise . . . . [H]ence, in affirming the sentence, we
will vacate that condition of probation and instruct the
trial judge to conduct a hearing to afford the defendant an
opportunity to demonstrate that the amount of restitution
is excessive and to fix the amount of restitution in the light
of the showing made.

Id. at 992-93 (emphasis added).

In State v. Spell, 449 So.2d 524 (La.App. 1 Cir.), appeal after

remand, 461 So.2d 654 (La.App. 1 Cir.1984), the first circuit followed

Sandifer by stating:

We cannot determine fairly whether $60,000 is a
reasonable or excessive sum without knowing more facts
about the victim’s injury and his residual circumstances.
These facts are necessary in order for us to determine the
victim’s loss and inconvenience. Necessarily relevant is
defendant’s ability to pay the sum ordered.
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....

The trial court shall hold a hearing on the matter, allowing
both sides to make arguments and present evidence
showing the appropriate amount of restitution. After
considering and articulating all factors, the court shall
determine the appropriate sum to compensate the victim
for his loss and inconvenience.

Id. at 526 (emphasis added).

Although the above cases involved restitution ordered as a condition of

probation, this distinction does not merit a different result for restitution ordered

pursuant to La.Code Crim.P. art. 883.2. When restitution is ordered under either

article, the record must be sufficient to review the restitution ordered. Accordingly,

we grant the defendant’s request for a restitution hearing by instructing the trial court

to hold such hearing upon remand.

In its conclusion, this court vacated Joseph’s sentences and remanded for

resentencing, instructing the trial court to hold a restitution hearing for both parties

to present evidence concerning the amount of restitution owed. Id. at 380-81. See

also State v. Danos, 08-2085 (La.App. 1 Cir. 7/22/09), 21 So.3d 414. Therefore,

here, we affirm Defendant’s sentence, vacate the trial court’s order of $25,000.00 in

restitution, and remand this case for a restitution hearing at which both parties may

present evidence concerning the amount of restitution owed.

Defendant’s final argument is that the trial court erred in failing to conduct a

hearing regarding his ability to pay restitution. We also find merit to this argument.

Effective August 1, 2022, shortly before Defendant’s guilty plea, the

legislature enacted the following version of La.Code Crim.P. art. 883.2, in pertinent

part:

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 pursuant to the provisions of Article 875.1.
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Also, effective August 1, 2022, La.Code Crim.P. art. 875.1 (emphasis added)

provides:

A. The purpose of imposing financial obligations on an offender
who is convicted of a criminal offense is to hold the offender
accountable for his action, to compensate victims for any actual
pecuniary loss or costs incurred in connection with a criminal
prosecution, to defray the cost of court operations, and to provide
services to offenders and victims. These financial obligations should
not create a barrier to the offender’s successful rehabilitation and
reentry into society. Financial obligations in excess of what an offender
can reasonably pay undermine the primary purpose of the justice
system which is to deter criminal behavior and encourage compliance
with the law. Financial obligations that cause undue hardship on the
offender should be waived, modified, or forgiven. Creating a payment
plan for the offender that is based upon the ability to pay, results in
financial obligations that the offender is able to comply with and often
results in more money collected. Offenders who are consistent in their
payments and in good faith try to fulfill their financial obligations
should be rewarded for their efforts.

B. For purposes of this Article, “financial obligations” shall
include any fine, fee, cost, restitution, or other monetary obligation
authorized by this Code or by the Louisiana Revised Statutes of 1950
and imposed upon the defendant as part of a criminal sentence,
incarceration, or as a condition of the defendant's release on probation
or parole.

C. (1) Notwithstanding any provision of law to the contrary,
prior to ordering the imposition or enforcement of any financial
obligations as defined by this Article, the court shall conduct a hearing
to determine whether payment in full of the aggregate amount of all the
financial obligations to be imposed upon the defendant would cause
substantial financial hardship to the defendant or his dependents. The
court may consider, among other factors, whether any victim of the
crime has incurred a substantial financial hardship as a result of the
criminal act or acts and whether the defendant is employed. The court
may delay the hearing to determine substantial financial hardship for a
period not to exceed ninety days, in order to permit either party to
submit relevant evidence.

(2) The defendant or the court may waive the judicial
determination of a substantial financial hardship required by the
provisions of this Paragraph. If the court waives the hearing on its own
motion, the court shall provide reasons, entered upon the record, for
its determination that the defendant is capable of paying the fines, fees,
and penalties imposed without causing a substantial financial
hardship.

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D. (1) If the court determines that payment in full of the
aggregate amount of all financial obligations imposed upon the
defendant would cause substantial financial hardship to the defendant
or his dependents, the court shall do either of the following:

(a) Waive all or any portion of the financial obligations, except
as provided in Paragraph E of this Article.

(b) Order a payment plan that requires the defendant to make a
monthly payment to fulfill the financial obligations.

(2)(a) The amount of each monthly payment for the payment plan
ordered pursuant to the provisions of Subsubparagraph (1)(b) of this
Paragraph shall be determined by the court after considering all relevant
factors, including but not limited to the defendant’s average gross daily
income for an eight-hour work day.

(b) If the court has ordered restitution, half of the defendant’s
monthly payment shall be distributed toward the defendant’s restitution
obligation.

(c) Except as provided in Paragraph E of this Article, during any
periods of unemployment, homelessness, or other circumstances in
which the defendant is unable to make the monthly payment, the court
or the defendant’s probation and parole officer is authorized to impose
a payment alternative, including but not limited to substance abuse
treatment, education, job training, or community service.

(3) If, after the initial determination of the defendant’s ability to
fulfill his financial obligations, the defendant’s circumstances and
ability to pay his financial obligations change, the State, the defendant,
or the defendant’s attorney may file a motion with the court to
reevaluate the defendant’s circumstances and determine, in the same
manner as the initial determination, whether a modification of the
monthly financial obligation imposed pursuant to this Article is
appropriate under the circumstances.

E. Notwithstanding any other provision of this Article or any
other provision of law to the contrary, a court may not waive nor forgive
restitution due to a crime victim unless the victim to whom restitution
is due consents to such an action.

F. If, at the termination or end of the defendant’s term of
supervision, any restitution ordered by the court remains outstanding,
the balance of the unpaid restitution shall be reduced to a civil money
judgment in favor of the person to whom restitution is owed, which may
be enforced in the same manner as provided for the execution of
judgments in the Code of Civil Procedure. For any civil money
judgment ordered under this Article, the clerk shall send notice of the
judgment to the last known address of the person to whom the
restitution is ordered to be paid.
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G. The provisions of this Article shall apply only to defendants
convicted of offenses classified as felonies under applicable law.

H. Notwithstanding any provision of this Article or any other law
to the contrary, if the financial obligations imposed upon a defendant
would cause substantial financial hardship to the defendant or his
dependents, the court shall not order that the defendant be incarcerated
for his inability to meet those financial obligations. This provision shall
apply to defendants convicted of traffic offenses, misdemeanor
offenses, or felonies under applicable law.

Although Defendant committed his offense before La.Code Crim.P. art. 875.1

took effect, Article 875.1 is a procedural statute that applies to all actions subsequent

to its effective date. See State v. Brossette, 163 La. 1035, 113 So. 366, (La.1927).

In Smith, 315 So.3d at 422, the second circuit found that a version of La.Code

Crim.P. art. 875.1 that became effective on August 1, 2019, applied to sentences

imposed after that date. Thus, in addition to ordering resentencing after a hearing

was held to determine the amount of restitution owed, the second circuit also ordered

the trial court to determine Smith’s ability to pay. Accordingly, we remand this case

for a restitution hearing with instructions that the restitution hearing also comply

with La.Code Crim.P. art. 875.1.

DECREE

Defendant’s conviction is affirmed. Defendant’s sentence is affirmed, in part,

as to his sentence of twenty years at hard labor, and vacated, in part, as to the

restitution order. This case is remanded to the trial court for a restitution hearing to

allow both parties to present evidence concerning the amount of restitution owed,

and for that restitution hearing to fully comply with La.Code Crim.P. art. 875.1.

CONVICTION AFFIRMED; SENTENCE AFFIRMED,
IN PART, AND VACATED, IN PART, CASE REMANDED
FOR RESTITUTION HEARING, WITH INSTRUCTIONS.

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