State v. Epperley

• Decision Date: 02 October 2014
• Docket Number: No. 2014–KA–0259, 2014–KA–0262, 2014–KA–0275, 2014–KA–0278, 2014–KA–0281, 2014–KA–0282.,2014–KA–0259, 2014–KA–0262, 2014–KA–0275, 2014–KA–0278, 2014–KA–0281, 2014–KA–0282.
• Citation: 151 So.3d 721
• Parties: STATE of Louisiana v. David R. EPPERLEY State of Louisiana v. David R. Epperley State of Louisiana v. David R. Epperley State of Louisiana v. David R. Epperley State of Louisiana v. David R. Epperley State of Louisiana v. David R. Epperley.
• Court: Court of Appeal of Louisiana — District of US

151 So.3d 721

STATE of Louisiana

v.David R. EPPERLEY

State of Louisiana

v.David R. Epperley

State of Louisiana

v.David R. Epperley

State of Louisiana

v.David R. Epperley

State of Louisiana

v.David R. Epperley

State of Louisiana

v.David R. Epperley.

No. 2014–KA–0259, 2014–KA–0262, 2014–KA–0275, 2014–KA–0278, 2014–KA–0281, 2014–KA–0282.

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 2, 2014.

Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.

Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET ).

Opinion

ROSEMARY LEDET, Judge.

In this criminal appeal, the defendant, David R. Epperley, seeks review of his convictions and sentences in six cases¹ that have been consolidated on appeal. For the reasons that follow, we affirm in part, as amended, in 2014–KA–0278; vacate in part; and remand with instructions for resentencing as to 2014–KA–0259.

STATEMENT OF THE CASE

On October 7, 2010, Mr. Epperley was charged by bill of information with four counts of misapplication of payments received from Chien–Chen Cheng, a violation of La. R.S. 14:202.² On that same date, Mr. Epperley was charged with one count of misapplication of payments received from Debra Cook and one count of theft of currency valued at five hundred dollars or more belonging to Ms. Cook, the latter being a violation of La. R.S. 14:67(B)(2).³ On October 14, 2010, Mr. Epperley was charged with one count of misapplication of payments received from Earnest Thibodeaux.⁴ On February 14, 2011, Mr. Epperley was charged with two counts of misapplication of payments received from Patrick Garner, Shawnte Garner, or both.⁵ On September 26, 2011, Mr. Epperley was charged with one count of theft of currency valued at one thousand five hundred dollars or more belonging to Wayne Ferrier, a violation of La. R.S. 14:67(B)(1).⁶ On October 4, 2011, Mr. Epperley was charged with one count of theft of currency valued at one thousand five hundred dollars or more belonging to Joseph Perriatt.⁷

On November 30, 2011, Mr. Epperley pled guilty⁸ as charged in each of the above-cited six cases and executed a Felony Waiver of Constitutional Rights Plea of Guilty Form (also known as a Boykin⁹ form) in connection with each case.¹⁰

In 2014–KA–0259, the Boykin form executed by Mr. Epperley provides that he pled guilty to four counts of misappropriation of funds. The form further evidences that the sentencing range for four counts of misappropriation of funds was zero to five years and that the sentence he received was five years, suspended, “concurrent,”¹¹ with active probation,¹² and “full restitution” owed.

In 2014–KA–0262, the Boykin form executed by Mr. Epperley provides that he pled guilty to misappropriation of funds and theft greater than five hundred dollars. The form further evidences that the sentencing range for misappropriation was zero to five years and the sentencing range for theft was zero to ten years. Mr. Epperley acknowledged that the sentence he would receive was ten years suspended for the theft charge and five years for the misappropriation charge, to run concurrently with each other. The sentences were suspended, with full restitution in the amount of $33,500.00, and Mr. Epperley was placed on five years active probation. The Boykin form further provided that the sentences were to run concurrently with 2014–KA–0281 and 2014–KA–0282, and consecutively with 2014–KA–0259, 2014–KA–0275, and 2014–KA–0278.

In 2014–KA–0275, the Boykin form executed by Mr. Epperley indicates that he pled guilty to one count of misappropriation of funds. The form further evidences that the sentencing range was zero to five years, and Mr. Epperley acknowledged that the sentence he received was five years, suspended, with five years of active probation, full restitution, and the sentence was to run concurrently with 2014–KA–0259 and 2014–KA–0278, but consecutively with 2014–KA–0262, 2014–KA–0281, and 2014–KA–0282.

In 2014–KA–0278, the Boykin form executed by Mr. Epperley provides that he pled guilty to two counts of misappropriation of funds. The form further evidences that the sentencing range was zero to three years. Mr. Epperley acknowledged that he would receive a sentence of three years, suspended, with three years of active probation, and he would pay full restitution. The form also provides that the sentence would run concurrently with 2014–KA–0275 and 2014–KA–0259, and consecutively with 2014–KA–0262, 2014–KA–0281, and 2014–KA–0282.

In 2014–KA–0281, the Boykin form executed by Mr. Epperley provides that he pled guilty to one count of theft over one thousand five hundred dollars, and the sentencing range was zero to ten years. Mr. Epperley acknowledged that the sentence he would receive was ten years, suspended, with five years of active probation, and full restitution in the amount of $29,500.00. The form evidences that the sentence was to run concurrently with 2014–KA–0262 and 2014–KA–0282, and consecutively with 2014–KA–0259, 2014–KA–0275, and 2014–KA–0278.

In 2014–KA–0282, the Boykin form executed by Mr. Epperley provides that he pled guilty to one count of theft greater than one thousand five hundred dollars, and the sentencing range was zero to ten years. Mr. Epperley acknowledged that his sentence would be ten years, suspended, with five years active probation, and $101,400.00 in restitution. The form further evidences that the sentence was to run concurrently with 2014–KA–0281 and 2014–KA–0262, and consecutively with 2014–KA–0259, 2014–KA–0275, and 2014–KA–0278.

Each Boykin form was signed and initialed by Mr. Epperley. Each form was also signed by his counsel and the district court, and each form provided that Mr. Epperley “underst[ood] that [he had] a right to a trial by [j]udge or [j]ury and if convicted a right to appeal and by entering a plea of guilty in this case [he was] waiving [his] rights to trial and appeal.”

On January 20, 2012 and on January 27, 2012, the district court held restitution hearings with respect to the three cases that Mr. Epperley did not agree to a restitution amount on the Boykin forms. On January 27, 2012, the district court ordered restitution in the amounts of $61,161.42¹³ in 2014–KA–0259, $253,681.00 in 2014–KA–0275, and $100,681.01 in 2014–KA–0278. According to the minute entry from that same date, the district court then sentenced Mr. Epperley pursuant to the plea agreements for all six cases.¹⁴ On appeal, this court found that, according to the transcript, the district court failed to actually impose sentences in three of the cases. This court thus dismissed the prior three appeals and remanded the matters to the district court for sentencing. State v. Epperley, 12–0766, pp. 1–2 (La.App. 4 Cir. 6/19/13), 119 So.3d 942, 942–43 ; State v. Epperley, 12–0789, pp. 1–2 (La.App. 4 Cir. 6/19/13), 119 So.3d 941, 941–42 ; and State v. Epperley, 12–1094, pp. 1–2 (La.App. 4 Cir. 6/19/13), 118 So.3d 1268, 1268–69.¹⁵

Accordingly, the district court sentenced Mr. Epperley on August 22, 2013, in accordance with the plea agreements for all six cases, as follows:

All right. As to Mr. David Epperley, in Case No. 500–897 [2014–KA–0259]. Mr. David Epperley entered a plea of guilty to four counts of misapplication of payments.

Your sentence is five (5) years in the custody of the Department of Corrections, suspended. Five (5) years of Active Probation.

The sentence is to run concurrently with each count, as well as Case Nos. 501–105 [2014–KA–0275], and 503–758 [2014–KA–0278].

However, the [s]entence is to run consecutively to Case Nos. 500–898 [2014–KA–0262], 508–788 [2014–KA–0281], and 508–935 [2014–KA–0282].¹⁶

The [r]estitution to be paid under this case number is $30,580.71.

As to Case No. 500–898 [2014–KA–0262], Mr. David Epperley entered a plea of guilty to one count of misapplication of payments and one count of theft over $500.

As to Count 1 in the Bill of Information, your [s]entence is five (5) years in the custody of the Department of Corrections, suspended. Five (5) years of Active Probation to run concurrently with the other count in the Bill of Information, as well as 508–788 [2014–KA–0281] and 508–935 [2014–KA–0282].

The [s]entence will run consecutively to 500–897 [2014–KA–0259], 501–105 [2014–KA–0275], and 503–758 [2014–KA–0278].

Restitution to be paid is $33,500.

As to Count 2, of the Bill of Information, your [s]entence is ten (10) years in the custody of the Department of Corrections, suspended. Five (5) years of Active Probation[,][t]o run concurrently with the other count in the Bill of Information, as well as Case Nos. 508–788 [2014–KA–0281], and 508–935[2014–KA–0282]. However, consecutively to 500–897 [2014–KA–0259], 501–105[2014–KA–0275], and 503–758 [2014–KA–0278].

As to Case No. 501–105 [2014–KA–0275], Mr. David Epperley entered a plea of guilty to one count of misapplication of payments. The [s]entence is five (5) years in the custody of the Department of Corrections, suspended. Five (5) years of Active Probation.

The [s]entence is to run concurrently with Case Nos. 500–897 [2014–KA–0259], and 503–758 [2014–KA–0278]. However, the [s]entence will run consecutive to the [s]entences imposed under Case Nos. 500–898 [2014–KA–0262], 508–788 [2014–KA–0281], and 508–935 [2014–KA–0282].

The restitution to be paid under this case number is $253,681.

As to Case No. 503–758 [2014–KA–0278], Mr. David Epperley entered a plea of guilty as to two counts of misapplication of payments valued under $1,000. The [s]entence is three (3) years in the custody of the Department of Corrections, suspended. Three (3) years of Active Probation to run concurrently with the two counts listed in the Bill of Information, as well as Case Nos. 500–897 [2014–KA–0259] and 501–105 [2014–KA–0275]. However, the [s]entence will run consecutive to 500–898 [2014–KA–0262], 508–788 [20

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