State v. Campbell

• Decision Date: 28 December 2016
• Docket Number: NO. 16–KA–341,16–KA–341
• Citation: 210 So.3d 508
• Parties: STATE of Louisiana v. Shondrell CAMPBELL
• Court: Court of Appeal of Louisiana — District of US

210 So.3d 508

STATE of Louisiana

v.Shondrell CAMPBELL

NO. 16–KA–341

Court of Appeal of Louisiana, Fifth Circuit.

December 28, 2016

COUNSEL FOR DEFENDANT/APPELLANT, SHONDRELL CAMPBELL, Gwendolyn K. Brown

Panel composed of Marc E. Johnson, Robert A. Chaisson, and Robert M. Murphy

MURPHY, J.

Defendant, Shondrell Campbell, appeals her sentence following a conviction for issuing worthless checks.¹ Defendant's conviction and sentence are affirmed.

FACTS AND PROCEDURAL HISTORY

This case comes before us for the third time on appeal. In defendant's first appeal, we affirmed her conviction for one count of issuing worthless checks, in violation of La. R.S. 14:71.C, vacated defendant's sentence, and remanded the matter for resentencing. State v. Campbell , 13–130 (La.App. 5 Cir. 10/30/13), 128 So.3d 1137. In defendant's second appeal, we again affirmed her conviction, vacated the sentence, and remanded to the trial court for resentencing² in accordance with La. C.Cr.P. art. 895.1. State v. Campbell , 15–98 (La.App. 5 Cir. 09/15/15), 173 So.3d 1256.

On December 16, 2015, following remand after defendant's second appeal, the trial court sentenced defendant to a suspended 24–month sentence with the Department of Corrections, two years of active probation, 480 hours of community service, and also ordered defendant to complete a three-hour accounting course. She was given credit for all the time served in Louisiana correctional facilities. Defendant was ordered to pay a fine in the amount of $500.00, $314.50 in court costs, and total restitution in the amount of $10,975.00, with a credit of $2,349.00. The trial court also imposed a $15.00 per check charge pursuant to La. R.S. 14:71, for a total of $45.00. Defendant was ordered to pay $100.00 per month until all restitution was paid. This timely appeal followed.

ASSIGNMENTS OF ERROR

Defendant raises five assignments of error in which she argues, in summary, that the trial court erred in imposing certain fees and court costs, as well as ordering her to appear in open court to make restitution payments, and in also failing to give her credit for time served.

LAW AND ANALYSIS

The record in this matter demonstrates that defendant did not object to the sentence imposed, either on the date of resentencing or by way of a timely filed motion for reconsideration of sentence.³ The failure to file a motion to reconsider sentence limits a defendant to a review of the sentence for constitutional excessiveness. La. C.Cr.P. art. 881.1(E) ; State v. Dupre , 03–256 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, writ denied , 03–1978 (La. 5/14/04), 872 So.2d 509. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato , 603 So.2d 739, 751 (La. 1992). Trial judges are granted great discretion in imposing sentences, and a sentence will not be set aside as excessive absent a clear abuse of that discretion. State v. Parker , 03–288 (La.App. 5 Cir. 7/29/03), 853 So.2d 67. The issue on appeal is whether the trial judge abused his discretion, and not whether another sentence might have been more appropriate. Id.

In her first assignment, defendant argues that the trial court erred in ordering the payment of a "DA fee," and in her third assignment, defendant contends that the court erred in including $75.00 in "NSF fees" in her sentence.

Defendant was convicted of issuing three worthless checks in the amount of $500.00 or more, violations of La. R.S. 14:71(C). As defendant acknowledges in her brief, pursuant to La. R.S. 16:15(A)(1), a Louisiana District Attorney's Office is specifically authorized to collect fees whenever his office collects and processes a check, draft, or order for the payment of money upon any bank or other depository, if the check, draft, or order for payment of money on any bank or depository "[h]as been issued in a manner which makes the issuance an offense under R.S. 14:71."⁴ In this case, under La. R.S. 16:15(C), the amount that the District Attorney's Office could collect is "One hundred seventy-five dollars or twenty percent, whichever amount is greater, if the face amount of the check, draft, or order for the payment of money is greater than five hundred dollars." Based upon the amounts of the worthless checks defendant was convicted of issuing, two for $3,000.00 and one for $3,100.00, the District Attorney's fee equals $1,820.00, which is twenty percent of $9,100.00. Thus, the part of defendant's sentence which required her to pay $1,800.00 was actually less than the amount allowed by statute.⁵ Accordingly, we do not find this fee to be constitutionally excessive.⁶ Similarly, with respect to defendant's assignment of error that a $75.00 NSF fee was improperly ordered, we also find no merit. As defendant acknowledges in her brief, La. R.S. 16:15(F) specifically requires a District Attorney's Office to collect worthless check fees:

Notwithstanding the provisions of Subsection E of this Section, in addition to the fees collected as provided in Subsection C of this Section, the district attorney shall collect a fee of twenty-five dollars per worthless check which shall be payable to the person or entity that honored the worthless check or checks.

In this case, the $75.00 fee imposed is the correct amount for the three worthless checks issued by defendant.

In her second assignment of error, defendant asserts that the trial court erred in adding court costs to her sentence.

La. C.Cr.P. art. 887 provides:

A. A defendant who is convicted of an offense or is the person owing a duty of support in a support proceeding shall be liable for all costs of the prosecution or proceeding , whether or not costs are assessed by the court ...

[Emphasis added]. In State v. Griffin , 14–1214 (La. 10/14/15), 180 So.3d 1262, the Louisiana Supreme Court discussed the discretion of the trial court to impose costs upon a convicted criminal defendant and a reviewing court's ability to determine whether the costs in a particular case are constitutionally excessive:

We find that it is within the discretion of the trial court to impose a broad category of costs on a convicted criminal defendant pursuant to article 887(A). The official comments to La. C.Cr.P. art. 887 state that the "general rule" is, "upon conviction, either upon a plea or finding of guilty, the defendant becomes liable for all costs of the prosecution .... [L]iability for costs is inherent in the adjudication of guilt, whether stated in the sentence or not." La. C.Cr.P. art. 887, official cmt. (a) (1966). In other words, the only limitation on costs in article 887 is "the adjudication of guilt," i.e., a conviction.

... Though we specifically find that a trial court has broad discretion to impose costs in this context, the discretion is not unlimited. The Louisiana Constitution limits a court's power to impose fines and costs when those costs are excessive or unreasonable. See State v. Dorthey , 623 So.2d 1276 (1993) ( "Louisiana's judiciary maintains the distinct responsibility of reviewing sentences imposed in criminal cases for constitutional excessiveness.") (citing La. Const. art. 1, sec. 20 ). To constitute an excessive sentence, a court must find that "the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and therefore, is nothing more than the needless imposition of pain and suffering." State v. Guzman , 99–1753, p.15 (La. 5/16/00), 769 So.2d 1158, 1166.

Id. at 1269–70. In the instant case, defendant was assessed a total of $314.50 in court costs.⁷ While defendant argues that she had already paid court costs prior to her most recent sentencing, no proof of this appears in the record. Defendant does not contend that the amount of the court costs is excessive or that the total amount was incorrectly calculated. We cannot say that the amount of court costs imposed in this case shocks our sense of justice. This assignment is without merit.

In her fourth assignment of error, defendant contends that the trial court erred in ordering her to appear in open court to make restitution payments. However, neither the trial court transcript from the date of sentencing or the corresponding minute entry shows that the court expressly imposed such a requirement as part of defendant's sentence.⁸ Accordingly, there is nothing in the record upon which to base our review. See State v. Orgeron , 512 So.2d 467, 472 (La. App. 1st Cir. 1987), writ denied , 519 So.2d 113 (La. 1988). However, even if defendant was required to pay her restitution in such a manner, we do not find that to be a clear abuse of the trial court's discretion. This assignment is without merit.

The defendant complains in her last assignment that the trial court failed to give her credit for time served. This assertion is directly contradicted by both the trial court transcript⁹ from the date of sentencing and the corresponding minute entry.¹⁰ Nevertheless, credit for time served is self-executing under La. C.Cr.P. art. 880.¹¹ This assignment is without merit.

Finally, although not specifically assigned as error, defendant contends throughout her brief that the cumulative actions¹² of the trial judge in sentencing her amount to "vindictiveness," resulting in a sentence that is both "excessive" and "unclear." The record does not support this allegation.¹³ The trial court complied with this Court's order on remand by setting a determinate amount of restitution due pursuant to La. C.Cr.P. art. 895.1. Nothing in the record before us demonstrates that the amount of restitution was calculated incorrectly.¹⁴ As discussed above, the fines and fees imposed as part of defendant's sentence were authorized by State law and, in some cases, were mandatory. To the extent that the fines and fees were not previously imposed, defendant's prior sentences were illegally lenient.¹⁵ In reviewing defendan...