State v. Joseph

• Decision Date: 05 May 2021
• Docket Number: 20-287
• Parties: STATE OF LOUISIANA v. TERRY LEN JOSEPH
• Court: Court of Appeal of Louisiana — District of US

STATE OF LOUISIANA v. TERRY LEN JOSEPH

20-287

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

May 5, 2021

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 11-239856

HONORABLE LORI ANN LANDRY, DISTRICT JUDGE

ELIZABETH A. PICKETT JUDGE

Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Charles G. Fitzgerald, Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Paula Corley Marx

Louisiana Appellate Project

P. O. Box 82389

Lafayette, LA 70598-2389

(337) 991-9757

COUNSEL FOR DEFENDANT-APPELLANT:

Terry Len Joseph

Hon. M. Bofill Duhe

District Attorney, Sixteenth Judicial District

W. Claire Howington

Assistant District Attorney

300 Iberia St., Suite 200

New Iberia, LA 70560

(337) 369-4420

COUNSEL FOR APPELLEE:

State of Louisiana

PICKETT, Judge.

FACTS

On the evening of January 1, 2011, the defendant, Terry Len Joseph, was driving westbound on Louisiana Highway 96 in St. Martin Parish. His passenger was the victim, Anessia Baldwin. He was driving at approximately eighty-six miles per hour when he reached a curved area, exited the roadway into a ditch to his left, struck a culvert, then three trees. The truck rotated so that when it finally came to a stop, it was facing east. The pair was trapped in the vehicle. A paramedic who arrived on the scene found that Miss Baldwin was dead. Emergency personnel extricated the defendant from the truck and airlifted him to a hospital in Lafayette. Testing revealed his blood-alcohol level to be 0.228.

On February 18, 2011, the state filed a bill of information charging the defendant with vehicular homicide, a violation of La.R.S. 14:32.1, and possession of weapon by a convicted felon, a violation of La.R.S. 14:95.1. The district court held a number of pretrial hearings, including a motion to suppress hearing on November 25, 2013. As will be discussed later, the court denied the motion.

The defendant was tried only on the vehicular homicide charge. The parties began selecting a jury on March 6-7, 2018. The jury began hearing evidence on March 8. On March 10, it found the defendant guilty as charged.

On June 14, 2018, the district court sentenced the defendant to twenty years at hard labor, with ten years suspended and five years of supervised probation. There were also several conditions of probation. The defendant filed a written motion to reconsider sentence, which the district court denied on July 6, 2018.

The defendant now appeals his conviction and sentence, assigning three errors.

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 two errors patent. Additionally, the court minutes of sentencing require correction.

First, when imposing the defendant's conditions of probation, the trial court stated, "All of the usual conditions of probation will be met as well as the usual conditions of parole." Although the court did not impose any specific conditions of parole, it imposed the "usual conditions." The trial court lacks the authority to impose conditions of parole. State v. Franco, 08-1071 (La.App. 3 Cir. 4/1/09), 8 So.3d 790, writ denied, 09-1439 (La. 2/12/10), 27 So.3d 843; State v. Kotrla, 08-364 (La.App. 3 Cir. 11/5/08), 996 So.2d 1224. Accordingly, we amend the defendant's sentence by deleting the imposition of the "usual conditions of parole" and instruct the trial court to make an entry in the court minutes reflecting this amendment.

Next, the trial court imposed a $5,000.00 fine "to be paid during the period of time that [the defendant] is on probation at a time that we will set at a later date depending on his ability and a new hire." The case must be remanded for the establishment of a payment plan. In State v. Arisme, 13-269, pp. 3-4 (La.App. 3 Cir. 10/9/13), 123 So.3d 1259, 1262, this court stated:

In State v. Wagner, 07-127, pp. 7-8 (La.App. 3 Cir. 11/5/08), 996 So.2d 1203, 1208, this court held in pertinent part:

When the fines and costs are imposed as a condition of probation, but the trial court is silent as to the mode of payment or the trial court attempts to establish a payment plan, this court has required a specific payment plan be established. See State v. Theriot, 04-897 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016 (fine, court costs, and cost of prosecution); State v. Fuslier, 07-572 (La.App. 3 Cir. 10/31/07), 970 So.2d 83(fine and costs); State v. Console, 07-1422 (La.App. 3 Cir. 4/30/08), 981 So.2d 875 (fine and court costs).

We view this procedure as no different from payment plans for restitution. See State v. Dean, 99-475 (La.App. 3 Cir. 11/3/99), 748 So.2d 57, writ denied, 99-3413 (La. 5/26/00), 762 So.2d 1101 (restitution only), State v. Reynolds, 99-1847 (La.App. 3 Cir. 6/7/00), 772 So.2d 128 (restitution, fine, and costs), State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597 (restitution, fine, court costs, and reimbursement to Indigent Defender Board), and State v. Fontenot, 01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255 (restitution, court costs and payments to victim's fund, Indigent Defender Board, and District Attorney).

We, therefore, remand this case to the trial court for establishment of a payment plan for the fine, noting that the plan may either be determined by the trial court or by Probation and Parole, with approval by the trial court. See Stevens, 949 So.2d 597.

Similarly, the trial court's ordering the payment to the crime lab fund during the period of probation is an insufficient payment plan. We also remand the case to the trial court for establishment of a payment plan for these costs, noting that the plan may either be determined by the trial court or by Probation and Parole, with approval by the trial court. See Stevens, 949 So.2d 597.

This issue has been similarly resolved in other cases. See State v. LaCombe, 09-544 (La.App. 3 Cir. 12/9/09), 25 So.3d 1002, and State v. Snelling, 09-1313 (La.App. 3 Cir. 5/5/10), 36 So.3d 1060, writ denied, 10-1301 (La. 12/17/10), 51 So.3d 16. Accordingly, we remand this case to the trial court for the establishment of a payment plan for the fee, noting that the plan may either be determined by the trial court or by the Department of Probation and Parole with approval by the trial court. See Stevens, 949 So.2d 597.

Accordingly, while we affirm the conviction and sentence, we remand to the trial court for the establishment of a payment plan for the fine, court costs, and payment to the Public Defender's Office imposed as conditions of probation. The payment plan may either be determined by the trial court or by the Office of Probation and Parole with approval by the trial court.

Thus, the defendant's case is remanded to the trial court to establish a payment plan for the fine imposed as a condition of probation. The payment planmay be determined by either the trial court or by the Office of Probation and Parole with approval by the trial court.

Finally, the court minutes of sentencing state that the defendant is to make "reasonable reparation or restitution to the aggrieved party for damage or loss caused by the offense in an amount to be determined by the court." The sentencing transcript does not indicate that the court imposed restitution. "[W]hen the minutes and the transcript conflict, the transcript prevails." State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d. 62. Accordingly, the trial court is ordered to amend the court minutes of sentencing to delete this provision requiring the payment of restitution.

ASSIGNMENTS OF ERROR

1. The State failed to meet its burden of proof that Terry Len Joseph was guilty of vehicular homicide beyond a reasonable doubt.

2. A. The trial court erred in imposing an excessive sentence in this vehicular homicide case. The death of Terry Len Joseph's friend in the accident was a tragic, devastating loss for him, as well as the victim's family. A lengthy sentence serves no useful purpose under these circumstances.

A twenty-year sentence subjects Terry Len Joseph, a dedicated father and hard worker, to cruel, excessive and unusual punishment in violation of the U.S. and Louisiana constitutions and statutory law.

B. The trial court failed to give sufficient weight to factors in mitigation in particularizing the sentence to this offender, thus the sentence violates the guidelines of La. C.Cr.P. Art. 894.1.

3. The trial court erred in denying the motion to suppress the statement of Terry Len Joseph which was not freely and voluntarily given due to his medical condition and the circumstances at the time.

4. The maximum period of probation for an offender such as Terry Len Joseph is three years, thus the trial court erred in imposing a five-year period of probation.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the defendant argues that the trial evidence was insufficient to support his conviction for vehicular homicide. He states, "The issue was whether the accident was caused by inattention unrelated to the consumption of alcohol." The general analysis for insufficiency of the evidence claims is well-established:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the

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