State v. Duhon

• Decision Date: 23 February 2022
• Docket Number: 21-538
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE OF LOUISIANA v. MICHAEL CALVIN DUHON A/K/A MICHAEL C. DUHON A/K/A MICHAEL DUHON

STATE OF LOUISIANA v. MICHAEL CALVIN DUHON A/K/A MICHAEL C. DUHON A/K/A MICHAEL DUHON

No. 21-538

Court of Appeals of Louisiana, Third Circuit

February 23, 2022

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR-164436 HONORABLE MARILYN C. CASTLE, JUDGE

Donald Dale Landry

District Attorney

15th Judicial District

Kenneth P. Hebert

Assistant District Attorney

COUNSEL FOR APPELLEE:

State of Louisiana

Meghan Harwell Bitoun

Louisiana Appellate Project

COUNSEL FOR APPELLANT:

Michael Calvin Duhon

Michael Calvin Duhon, Pro Se

DOC #741355

Lafayette Parish Correctional Center #4A-9B

Court composed of John E. Conery, Jonathan W. Perry, and J. Larry Vidrine, Judges.

J. LARRY VIDRINE ^[*] JUDGE

Defendant, Michael Calvin Duhon, was charged by bill of information with one count of theft over $25, 000, in violation of La.R.S. 14:67; one count of money laundering, in violation of La.R.S. 14:230; and one count of exploitation of the infirmed, in violation of La.R.S. 14:93.4. Following a jury trial, Defendant was found guilty as charged on the theft and money laundering counts but was acquitted of exploitation of the infirmed. Defendant was subsequently sentenced to fifteen years at hard labor on each conviction, with his sentences to run concurrently and all but eleven years suspended with three years of supervised probation. Defendant appealed, asserting four counseled assignments of error and fourteen pro se assignments of error. This court affirmed Defendant's convictions but vacated the sentences and remanded for resentencing after finding the trial court's failure to specify to which counts the probationary period applied was an error patent. 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, and writ denied, 20-672 (La. 11/10/20), 303 So.3d 1040 ("Duhon I").

At resentencing, the trial court again imposed fifteen-year sentences on each count, ran them concurrently, suspended four years, and clarified that each count would have three-year probationary periods that ran concurrently with each other and parole. Furthermore, the trial court again ordered Defendant to pay restitution in the amount of $331, 500.00, amongst other special conditions of probation. The court also entered a civil money judgment for restitution based upon La.Code Crim.P. art. 895.1. Although appellate counsel filed a brief seeking to be released as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241, this court again vacated the sentences and remanded:

Defendant's sentences are vacated as indeterminate, and the case is remanded for resentencing. The trial court is instructed that if restitution is again imposed, the trial court must specify to which count or counts it applies. Additionally, the trial court should clearly state whether restitution is imposed as part of the sentence(s) or as a condition of probation.

Since the December 9, 2019 "Civil Money Judgment of Restitution" is no longer based on a legal restitution order, that judgment is also vacated. The trial court is instructed that any civil money judgment issued in this case should be issued pursuant to the appropriate Louisiana Code of Criminal Procedure Articles; La.Code Crim.P. art. 895.1 if it is imposed as a condition of probation, and La.Code Crim.P. arts. 883.2 and 886 if it is imposed as part of the sentence(s). The parties are ordered to seek cancellation of the judicial mortgage created by the civil money judgment as provided by law. La.Civ.Code art. 3337.

State v. Duhon, 20-513, pp. 38-39 (La.App. 3 Cir. 5/26/21), 322 So.3d 326, 346 ("Duhon II").

Defendant was once again resentenced on August 3, 2021. The trial court again ordered Defendant to serve fifteen years at hard labor with four years suspended on each count with the two sentences running concurrently to each other. The suspended sentences are both conditioned on three years of supervised probation which are to run concurrently to each other and to Defendant's parole obligations. Defendant is also ordered to pay restitution in the amount of $331, 500.00, which the court specified was part of Defendant's sentence for Defendant's theft conviction. Additionally, the trial court ordered the District Attorney's Office to cancel the previously obtained civil money judgment and to seek a new judgment as allowed under La.Code Crim.P. art. 883.2.

Appellate counsel has once again filed an Anders brief and sought to be released as counsel of record, noting the trial court resentenced Defendant in accordance with this court's May 26, 2021 opinion and that Defendant cannot seek review of his conviction as this appeal is limited to the issue of Defendant's resentencing.

Defendant filed a pro se brief raising sixteen assignments of error. We find none of these assignments have merit: some are moot as they attack Defendant's conviction, which was already affirmed, and many are based upon Defendant's incorrect belief the trial court cannot resentence him when this court has vacated his previous sentence. Although Defendant's pro se brief does not contain an assignment of error section setting out his assignments, he outlines the following sixteen alleged errors:

1. The trial court erred in suspending part of Defendant's sentence after the commencement of his hard labor sentence.

2. The trial court erred in ordering restitution to Marie Dutsch.

3. The trial court erred in ordering an amount of restitution to Marie Dutsch that exceeded $26, 000.

4. The trial court erred in ordering an amount of restitution so large Defendant is destined to fail.

5. The trial court erred in ordering the parolee to "new" probation on August 3, 2021.

6. The trial court erred when it failed to establish a payment plan for fees ordered as a condition of probation.

7. The trial court erred in ordering restitution at all, much less an egregious amount of $351, 500 for an indigent defendant related to his theft conviction.

8. The trial court erred in ordering restitution to her friend, Marie Dutsch, instead of the victim listed in the bill of indictment for money laundering.

9. The trial court erred in ordering restitution in the amount of $351, 500 without a restitution hearing.

10. The trial court erred in not addressing Defendant's motion for new trial based upon new Brady evidence purposely withheld from Defendant.

11. The trial court erred in not addressing Defendant's "Motion in Arrest of Judgment."

12. The trial judge erred in intentionally committing fraudulent judicial acts based on the State of Louisiana Uniform Commitment Order.

13. The trial judge erred by not removing herself from sentencing proceedings while being involved in personal and civil litigation with Defendant and committed perjury.

14. The trial court erred in giving Defendant an indeterminate sentence.

15. The trial court erred by not following this court's explicit order to remove the December 9, 2019 illegal judgment of $351, 500 against Defendant.

16. Defendant Requests under La.Code Crim.P. art. 881.4(B) that this court remand the case for resentencing before a different trial judge.

FACTS:

This court put forth the following factual history in Defendant's first appeal:

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.

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

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 there are no errors patent.

ANDERS ANALYSIS:

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth circuit explained the analysis based on Anders, 386 U.S. 738:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court's review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be

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