State v. Duhon

• Decision Date: 26 May 2021
• Docket Number: 20-513
• Citation: 322 So.3d 326
• Parties: STATE of Louisiana v. Michael Calvin DUHON a/k/a Michael C. Duhon a/k/a Michael Duhon
• Court: Court of Appeal of Louisiana — District of US

322 So.3d 326

STATE of Louisiana
v.
Michael Calvin DUHON a/k/a Michael C. Duhon a/k/a Michael Duhon

20-513

Court of Appeal of Louisiana, Third Circuit.

May 26, 2021

Donald Dale Landry, District Attorney, Fifteenth Judicial District, P. O. Box 3306, Lafayette, LA 70502, (337) 232-5170, COUNSEL FOR APPELLEE: State of Louisiana

Kenneth P. Hebert, Assistant District Attorney, Fifteenth Judicial District, P.O. Box 33885, Lafayette, LA 70501, COUNSEL FOR APPELLEE: State of Louisiana

Meghan Harwell Bitoun, P.O. Box 4252, New Orleans, LA 70119, (504) 470-4779, COUNSEL FOR DEFENDANT/APPELLANT: Michael Calvin Duhon

Michael Calvin Duhon, Madison Detention Center #3-D-3, 158 Treatment Plant Road, Tallullah, LA 71282

Court composed of Sylvia R. Cooks, Chief Judge, Billy Howard Ezell, and D. Kent Savoie, Judges.

EZELL, Judge.

The Defendant, Michael Calvin Duhon, is before this court on appeal of his resentencing. In State v. Duhon , 19-639 (La.App. 3 Cir. 4/1/20), 297 So.3d 892, writ denied , 20-479 (La. 11/10/20), 303 So.3d 1036, writ denied , 20-672 (La. 11/10/20), 303 So.3d 1040, this court affirmed Defendant's convictions for theft and money laundering but vacated the sentences imposed on those counts as being indeterminate. The trial court failed to specify to which count or counts the period of probation applied. This court remanded for resentencing, instructing the trial court that if any periods of probation were imposed, it must specify to which count or counts the periods of probation applied. Id.

On July 30, 2020, the trial court held a hearing, at which it stated that it "clarified" the sentences as follows: On the count of theft over $25,000.00, the trial court sentenced Defendant to fifteen years at hard labor, with all but eleven years suspended. On the count of money laundering, the trial court sentenced Defendant to fifteen years at hard labor, with all but eleven years suspended. The trial

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court ordered the sentences to run concurrently and stated that the term of probation would be three years for each sentence, with the probation periods running concurrently with each other and with parole. In addition to the normal conditions of probation, the trial court ordered the following special conditions of probation: 1) Defendant must perform sixty hours of community service – one-half being through litter abatement; 2) Defendant must pay $150.00 to the Office of Probation and Parole for the cost of the Presentence Investigation Report (PSI); 3) Defendant must pay court costs of $435.50; 4) Defendant must pay restitution in the amount of $331,500.00; 5) Defendant must refrain from acting in any capacity as an investment advisor, broker, or money manager, and 6) Defendant must refrain from any activity wherein he would have access to assets of a third party. As for restitution, the trial court listed it with the other conditions of probation but also stated that restitution was part of "the sentence."

On August 25, 2020, Defendant filed a Motion for Appeal and Designation of Record regarding the sentences imposed by the trial court at resentencing. The motion was granted on September 2, 2020. On November 30, 2020, Defendant's appellate counsel filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking to withdraw from the case because of the lack of non-frivolous issues to assert on review. On January 19, 2021, this court issued an order to appellate counsel to submit a brief by February 3, 2021, addressing the issue of whether Defendant's sentences were indeterminate because the trial judge failed to state on which count or counts restitution was imposed and addressing the issue of whether Defendant's sentences were indeterminate because the trial court failed to clearly state whether the restitution was imposed as part of the sentence(s) or imposed as a condition of probation.

On February 5, 2021, this court received a brief by appellate counsel addressing the issues as requested by this court. Appellate counsel acknowledges that Defendant's sentences are "technically" indeterminate as to which count or counts restitution was imposed but contends the sentences are not indeterminate as to whether restitution was ordered as part of the sentences or whether it was imposed as a condition of probation. Appellate counsel asserts the trial court clearly imposed restitution as part of Defendant's sentence(s). Appellate counsel requests this court to remand the case to a different judge if it decides the case must be remanded for resentencing. Defendant filed a pro se brief alleging numerous errors. Most of the errors involve his convictions, which are now final and are not properly before the court. Defendant attempts, however, to bootstrap his conviction claims by asserting that a valid sentence must be based on a valid conviction. Like appellate counsel, Defendant asks this court to remand for resentencing before a different judge, claiming the current judge is prejudiced against him. Finally, as for the trial court's restitution order, Defendant claims the trial court's order had no evidentiary basis and was imposed without legal authority. The was issued a "10-day order" on March 5, 2021, to file a brief by March 11, 2021, or possibly be cited for contempt of court. The State's brief was received by the court on March 15, 2021.

Subsequently, Defendant filed a supplemental pro se brief on March 18, 2021, and a pro se reply brief on April 1, 2021. He alleged errors regarding the "Civil Money Judgment of Restitution" issued by the trial court on December 9, 2019, and filed

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into the mortgage records on December 11, 2019.

As will be discussed, the sentences imposed at resentencing are once again indeterminate. Thus, the sentences must be vacated, and the case remanded for resentencing.

FACTS

In Defendant's original appeal, this court stated the following regarding the facts of this case:

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.

Duhon , 297 So.3d at 894-95.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. There are two errors patent involving the sentences imposed that have been briefed by appellate counsel.

Upon remand, Defendant filed numerous post-trial motions, including motions for new trial, motions for post-verdict judgments of acquittal, and motions in arrest of judgment, all of which were denied by the trial court as duplicative.¹ The trial court also ruled that it was too late for Defendant to file these motions as they involved matters that had already "gone up on appeal." When Defendant asserted that the trial court must delay sentencing until twenty-four hours after the denial of his post-trial motions, the trial judge stated the twenty-four delay did not apply since the denial was based on the repetitiousness of the motions, not their merits.

We find the trial court was correct in finding the twenty-four-hour delay did not apply. In State v. Lambert , 52,004 (La.App. 2 Cir. 5/23/18), 248 So.3d 621, the second circuit found the La.Code Crim.P. art. 873 delay did not appear to apply since the trial court denied the post-trial motion as procedurally improper rather than on its merits. Moreover, since Defendant's post-trial motions attacked his convictions, they were not properly before the trial court. Since Defendant's convictions were affirmed by this court and are now final, the only portion of the record that is now subject to review on appeal is the resentencing proceeding. See State v. Brown , 19-370 (La.App. 5 Cir. 1/15/20), 289 So.3d 1179, writ denied , 20-276 (La. 6/22/20), 297 So.3d 721, cert. denied , ––– U.S. ––––, 141 S.Ct. 1396, 209 L.Ed.2d 133 (2021), where the fifth circuit found Brown could not challenge his conviction on an

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appeal of his resentencing when his conviction became final after the Louisiana Supreme Court denied writs. The fifth circuit stated, "[Brown's] resentencing [did] not allow him the opportunity to challenge his previously affirmed convictions ...." Brown , 289 So.3d at 1187. Likewise, Defendant's resentencing did not allow him the opportunity to challenge his previously affirmed convictions. Accordingly, we find the trial court did not err in denying Defendant's request to delay sentencing by twenty-four hours.

ASSIGNMENT OF ERROR AND BRIEFED ISSUE NUMBER ONE ...