State v. Porche

• Decision Date: 30 December 2020
• Docket Number: 2020 KA 0246
• Citation: 318 So. 3d 184
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE of Louisiana v. Merrel A. PORCHE

318 So.3d 184

STATE of Louisiana

v.Merrel A. PORCHE

2020 KA 0246

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: DECEMBER 30, 2020

Samuel C. D'Aquilla, District Attorney, Stewart B. Hughes, Assistant District Attorney, Haley Major Green, Assistant District Attorney, St. Francisville, Louisiana, Attorneys for Appellant State of Louisiana

Thomas C. D'Amico, Baton Rouge, Louisiana, Attorney for AppelleeDefendant—Merrel A. Porche

Before: Whipple, C.J., Welch, and Chutz, JJ.

WELCH, J.

The State of Louisiana charged the defendant, Merrel A. Porche, by bill of information with residential contractor fraud at a value of one thousand five hundred dollars or more, a violation of La.R.S. 14:202.1(C)(3)(prior to amendment by 2017 La. Acts, No. 281, § 1).¹He initially pled not guilty, later withdrew his not guilty plea, and subsequently pled nolo contendere to five counts of misapplication of payments by a contractor, violations of La.R.S. 14:202.²The trial court initially sentenced the defendant to six months in parish jail on each count to be served consecutively, suspended the sentences, and placed the defendant on supervised probation for a period of two years on each count.After a hearing to determine what amount, if any, should be paid in restitution as a condition of probation, the trial court found that the amount of restitution had not been shown to its satisfaction and ruled that no restitution would be ordered in connection with the defendant's sentence.The State filed a motion for rehearing, urging the trial court to reconsider its ruling on restitution.Subsequently, the trial court denied the State's motion for a rehearing, vacated the original sentences, and imposed one sentence of a fine of one thousand dollars plus court costs or a jail term of ninety days in default of payment of the fine.

The State appealed to this court, arguing the trial court erred in resentencing the defendant to terms different from the plea agreement and in ordering no restitution.On appeal, this court vacated the sentence and remanded the case to the trial court for resentencing due to patent sentencing error; specifically, the trial court's failure to impose a separate sentence for each of the five counts in amending the sentencing.State v. Porche, 2019-0278(La. App. 1st Cir.9/27/19), 288 So. 3d 802, 804.³

On remand, the trial court sentenced the defendant on each count to a fine of one thousand dollars plus court costs or a jail term of ninety days in default of payment of the fine.The trial court further ordered that the sentences run concurrently, with credit for any previous payments.The State now appeals, assigning as error the sentencing and restitution issues raised in its original appeal.The defendant filed an appellee brief, arguing that the State's assignments of error have no merit.For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

As the defendant pled nolo contendere to each count, there was no trial, and thus, no trial testimony concerning the offenses.The bill of information indicates that, on or about March 7, 2016, the defendant failed to apply the money received under a contract with London Boarding Home ("LBH") to settle claims for material and labor due under the contract.At the restitution hearing, George Turner of LBH testified that in 2015, LBH entered into three builder's contracts with M&P Construction Group, L.L.C.("M&P"), represented by the defendant and codefendant Brian Moser, to build three homes in New Jerusalem Estates ("NJE"), a residential subdivision in West Feliciana Parish.⁴According to Turner's testimony and documentation presented at the restitution hearing, although LBH paid M&P in accordance with a draw schedule, in March of 2016, LBH began receiving letters from attorneys representing various companies, for unpaid debts that exceed $110,304.37 in total.

ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one, the State contends that on March 19, 2018, in exchange for amending the bill of information to five counts of misapplication of contractor payments, the defendant agreed to enter pleas of nolo contendere.The State further contends that the trial court agreed to accept the pleas and sentence the defendant to a six-month suspended sentence with two years active supervised probation on each count to run consecutively.The State argues that the trial court breached the terms of a plea agreement by later reducing the sentences originally imposed according to a plea agreement.The State claims that all parties agreed and that the original agreed-upon sentences were a material inducement for the State to amend the bill of information to less serious charges.Noting that courts have long used the principles of contract law in reviewing questions about plea agreements, the State argues that the cause for the amendment of the bill of information has failed and the contract should be nullified.The State contends that it was injured by said breach and demands either specific performance or the nullification of the plea.

The defendant argues that the trial court, when accepting his pleas, clearly reserved to itself the right to modify the terms of probation (and by necessary implication, any concomitant suspended sentence) pending the outcome of a restitution hearing.The defendant further notes that immediately after denying restitution, the trial court, in pertinent part, stated, "And I don't want to do the sentence today because I want to give it some more consideration, and I want to give everybody a chance to put on evidence about the exact sentence if they want to."The defendant avers that the State did not react to the trial court's comment because all of the parties were aware that the ultimate terms of probation had been conditioned on the outcome of the hearing to determine restitution.

In determining the validity of plea bargain agreements, Louisiana courts generally refer to rules of contract law, while recognizing at the same time that a criminal defendant's constitutional right to fairness may be broader than his or her rights under contract law.State v. Givens, 99-3518(La.1/17/01), 776 So. 2d 443, 455;State v. Canada, 2001-2674(La. App. 1st Cir.5/10/02), 838 So. 2d 784, 787.A plea bargain agreement requires the consent of the State and the defendant.SeeLa.C.C. art. 1927.Error, fraud, or duress may vitiate consent.La.C.C. art. 1948;Canada,838 So. 2d at 786.Where the plea agreement calls for a legal sentence and the trial court agrees, the trial court is bound by the terms of the agreement.State v. Terrebonne, 2001-2632(La. App. 1st Cir.6/21/02), 822 So. 2d 149, 152.Under substantive criminal law, there are two alternative remedies available for a breach of a plea bargain: (1) specific performance of the agreement, or (2) nullification or withdrawal of the plea.Canada,838 So. 2d at 788.

In this case, a sentencing agreement was not set forth in the record at the time of the pleas.The transcript of the nolo contendere pleas begins with an abstract statement by the State as follows: "Your Honor, Mr. Porche has amended his bill the same way I did Mr. Moser."The nature or extent of off-the-record plea discussions, if any, are unknown to this court on review.Before the defendant's guilty pleas were entered and accepted, the trial court simply stated, "It's my understanding that you wish to withdraw a prior plea of not guilty and enter a plea of nolo contendere to an amended bill of information charging five counts of misapplication by a contractor."When the original sentences were imposed, there was no statement by the trial court, the State, or the defendant to indicate that the sentences were in accordance with a sentencing agreement.⁵

The party demanding performance of a plea bargain agreement has the burden of proving its existence and the terms thereof.SeeState v. Cotton, 2015-1623(La. App. 1st Cir.4/15/16), 194 So. 3d 69, 79-80, writ denied, 2016-0897 (La.4/24/17), 221 So. 3d 69;Canada,838 So. 2d at 787.Based on our careful review of the record, we find that the record is devoid of evidence of a plea agreement.SeeLa.C.Cr.P. art. 556.1(prior to 2017 and 2019amendments).As the State failed to show the existence of a sentencing agreement as a part of any plea bargain, we find no breach of a plea agreement by the trial court in resentencing the defendant.Accordingly, assignment of error number one lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In assignment of error number two, the State argues that the trial court erred in not ordering the defendant to pay a sum of restitution as a part of his penalty.The State contends that the uncontested testimony of Lula London, who identified herself as the manager of NJE⁶ at the restitution hearing, clearly established the amount misapplied to be $110,304.37.Further, the State notes that La.R.S. 14:202(D) does not use the term "restitution" to describe the amount that must be paid to the victim.Accordingly, the State argues that "a different framework" than that found in La.C.Cr.P. art. 883.2, which governs restitution to a victim, should have been employed by the trial court to determine the amount due to the victim in this case.The State concludes that pursuant to the language of La.R.S. 14:202(D), the defendant is specifically required to pay an amount equal to the sum of the payments not properly applied.

The defendant notes that the record does not reflect a contemporaneous objection by the State to the trial court's ruling that restitution would not be ordered in this case and argues the State cannot raise this issue on appeal.He further contends that, in any event, the trial court's ruling was "sound and reasonable."The defendant argues that the only evidence from which to rule was Turner's testimony, which he contends was "nullified" after Turner asserted his right to remain silent.The defendant contends that...