State v. Duhon

• Decision Date: 01 April 2020
• Docket Number: 19-639
• Citation: 297 So.3d 892
• Parties: STATE of Louisiana v. Michael Calvin DUHON
• Court: Court of Appeal of Louisiana — District of US

297 So.3d 892

STATE of Louisiana

v.Michael Calvin DUHON

19-639

Court of Appeal of Louisiana, Third Circuit.

April 1, 2020

Keith A. Stutes, District Attorney, Robert L. Odinet, Assistant District Attorney, Post Office Box 3306, Lafayette, Louisiana 70502-3306, (337) 232-5170, Counsel for Appellee: State of Louisiana

Meghan Harwell Bitoun, Louisiana Appellate Project, Post Office Box 4252, New Orleans, Louisiana 70119, (504) 470-4779, Counsel for Defendant/Appellant: Michael Calvin Duhon

Michael Calvin Duhon, In Proper Person, E.H.C.C. B1-B-#10 Cell, Post Office Box 174, St. Gabriel, Louisiana 70776, Defendant/Appellant

Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and John E. Conery, Judges.

KEATY, Judge.

Defendant appeals his convictions of and sentences for theft and money laundering. For the following reasons, Defendant's convictions are affirmed; however, his sentences are vacated, and the case is remanded for resentencing with instructions.

FACTS & PROCEDURAL BACKGROUND

In this criminal matter, Defendant, Michael Calvin Duhon, stole more than $400,000.00 in land and retirement funds from the victim, Marie Dutsch. Defendant's theft involved a complex financial scheme whereby he moved the money through shell corporations and different bank accounts to conceal the funds’ source. As a result, Defendant was charged by bill of information with one count of theft over $25,000.00 in violation of La.R.S. 14:67, one count of money laundering in violation of La.R.S. 14:230(B)(5) and (E)(4), and one count of exploitation of the infirmed in violation of La.R.S. 14:93.4. Following a jury trial in February 2019, Defendant was acquitted of the charge of exploitation of the infirmed but found guilty regarding the remaining two offenses. For each offense, the trial court sentenced Defendant to serve fifteen years at hard labor to run concurrently, with all but eleven years suspended. He was placed on active supervised probation for three years subject to certain conditions. Defendant is now before this court appealing his convictions and sentences.

On appeal, Defendant asserts the following assignments of error:

1. Michael Duhon's convictions for theft and money laundering violate federal and state constitutional prohibitions against double jeopardy.

2. The trial court erroneously admitted unduly prejudicial character evidence.

3. There was insufficient evidence to establish that the crime of theft was committed.

4. The trial court acted outside of its inherent authority when it taped Mr. Duhon's mouth shut during sentencing.

Defendant further asserts the following pro se assignments of error:

1. Defendant was denied due process of law by the trial court.

2. The trial court judge should have been disqualified due to impartiality.

3. Defendant's convictions violate the prohibition against double jeopardy.

4. Louisiana Revised Statute[s] 14:230 is unconstitutional.

5. The State did not prove Defendant committed the offenses of money laundering or theft.

6. The amended indictment bears the wrong name of the victim.

7. Defendant and the jury were denied the benefit of professional valuation of the property taken.

8. The State failed to disclose material evidence favorable to Defendant.

Defendant also asserts the following supplemental pro se assignments of error:

1. The evidence presented at trial was insufficient to convict Defendant of money laundering.

2. The trial court abused its discretion in denying his motion in arrest of judgment because the verdict was theft of "property" when the bill charged theft of "money."

3. Defendant was unlawfully sentenced less than twenty-four hours after the denial of his motion in arrest of judgment and supplemental brief filed in support of the motion.

4. The trial court erred in denying Defendant's motion for post-verdict judgment of acquittal due to Ms. Dutsch's "criminality" in cancelling licenses and violating the Unfair Trade Practices Act by competing with the partnership.

5. The trial court erred in denying his request to compel the attendance of witnesses Daniel Landry and Chance James.

6. The evidence presented to prove theft was insufficient to prove Defendant guilty beyond a reasonable doubt because his identity was not proven.

7. Louisiana Revised Statutes 14:230(B)(2) is unconstitutional.

8. Defendant's trial by a jury of twelve instead of six resulted in a violation of his constitutional rights.

9. Information which would have exonerated Defendant was withheld by the prosecutor.

10. Judicial fraud and extrinsic fraud were committed by [the trial court judge] and the prosecutor in Defendant's case.

DISCUSSION

I. Errors Patent

In accordance with 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 an error patent concerning Defendant's sentences that requires the sentences be vacated and the case remanded for resentencing.

Defendant was sentenced to serve fifteen years at hard labor, to run concurrently, for each of his convictions. The trial court suspended all but eleven years of "the sentence" and placed Defendant on three years of active supervised probation, subject to certain conditions without specifying which sentence, or whether both sentences, were suspended.¹

In State v. Ervin , 17-18, pp. 2-4 (La.App. 3 Cir. 12/13/17), 258 So.3d 677, 680-81, this court addressed a similar issue in its review of the record for errors:

First, we find Defendant's sentences are indeterminate. When sentencing Defendant, the judge stated:

As it related to the five counts of carnal knowledge of a juvenile, at this time I will sentence you to five years with the Department of Public Safety and Corrections on each count. And that time will run consecutive for a total of twenty-five years with the Department of Public Safety and Corrections. And on the charge of attempted carnal knowledge of a juvenile, I will sentence you to two years on each count. That two years will run concurrent. Of that twenty-five years, I will suspend fifteen. And after you serve the first ten, when you are released, you will be released on five years of supervised probation.

A similar issue was before this court in State v. Verret , 08-1335 (La.App. 3 Cir. 5/6/09), 9 So.3d 1112. For each of four counts of negligent homicide, the defendant was sentenced to five years to run concurrently. The court then stated it was "ordering that [the defendant] serve four years of this sentence and that one year of the sentence be suspended." Id . at 1113. The defendant was placed on probation for four years. In addressing the patent sentencing error, this court stated:

The trial court unequivocally imposed a five-year sentence on each count to run concurrently. When it ordered suspension of one year and discussed the terms and length of probation, however, the trial court only referred to one sentence. Insofar as the trial court failed to specify to what counts the suspension and probationary period applied, the trial court imposed indeterminate sentences.

This court addressed a similar issue in State v. Morris , 05-725, p. 9 (La.App. 3 Cir. 12/30/05), 918 So.2d 1107, 1113, wherein it found that "[t]he trial court imposed indeterminate sentences because it suspended the sentences and placed Defendant on five years of supervised probation without specifying to which count or counts the probation applied." In Morris , 918 So.2d 1107, the court quoted from State v. Taylor , 01-680, p. 2 (La.App. 3 Cir. 11/14/01), 801 So.2d 549, 550 :

After suspending five years of the defendant's eight-year sentence and the totality of the six-year sentence, the trial court imposed a five-year supervised probation period. It is unclear, however, to which sentence this probation period applies or whether it applies to each. Thus, the sentences are indeterminate and in violation of La.Code Crim.P. art. 879, which provides: "If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence."

Finding the defendant's sentences indeterminate, we vacate the sentences and remand this matter to the trial court for the imposition of determinate sentences. In doing so, we instruct the trial court to specify whether the periods of probation are to be served concurrently or consecutively and upon what point the probated sentences begin as to each count. See La.Code Crim.P. art. 883.

Accordingly, we vacate the sentences on the grounds they are indeterminate and remand the case for resentencing. Upon remand, if any periods of probation or suspension are imposed, the trial court is instructed to specify to which count(s) they apply.

Verret , 9 So.3d at 1113-14.

Accordingly, we must vacate Defendant's sentences for felony carnal knowledge of a juvenile and attempted felony carnal knowledge of a juvenile and remand the case for resentencing with the trial court being instructed that if any periods of suspension or probation are imposed, it must specify to which count(s) they apply. Additionally, the sentences imposed for attempted carnal knowledge of a juvenile are indeterminate due to the trial court's failure to specify whether they are to be served with or without hard labor. See La.R.S. 14:27 and 14:80. Thus, when resentencing Defendant, the trial court should specify whether the sentences for attempted felony carnal knowledge of a juvenile are to be served with or without hard labor. See State v. Chehardy , 12-1337 (La.App. 3 Cir. 5/1/13), 157 So.3d 21.

Similarly, in this matter, Defendant's sentences must be vacated and the case remanded for resentencing. As in Ervin , the trial court is instructed that if any periods of probation are imposed, it must specify as to which count(s) they apply.

II. Assignment of Error No. 3

In his third assignment of error, Defendant contends there was insufficient evidence to establish that the crime of theft was committed. We address the foregoing assigned error before others because a finding of insufficient...