Opinion
2018 CA 0555
02-25-2019
STATE OF LOUISIANA v. WADE J. YBARZABAL
William H. Slaughter, III Metairie, Louisiana ATTORNEY FOR APPELLANT DEFENDANT—Wade J. Ybarzabal Warren L. Montgomery District Attorney for the 22nd Judicial District Matthew Caplan Assistant District Attorney Covington, Louisiana ATTORNEYS FOR APPELLEE The State of Louisiana
NOT DESIGNATED FOR PUBLICATION Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany • State of Louisiana
Docket Number 562027 • Division A The Honorable Raymond S. Childress, Judge Presiding William H. Slaughter, III
Metairie, Louisiana ATTORNEY FOR APPELLANT
DEFENDANT—Wade J. Ybarzabal Warren L. Montgomery
District Attorney for the 22nd Judicial District Matthew Caplan
Assistant District Attorney
Covington, Louisiana ATTORNEYS FOR APPELLEE
The State of Louisiana BEFORE: WELCH, CHUTZ, AND LANIER, JJ. WELCH, J.
The defendant, Wade J. Ybarzabal, appeals a judgment ordering him to pay restitution in the amount of $79,103.86. For the following reasons, we affirm the defendant's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
The background of this matter is set forth in this court's prior opinion, State v. Ybarzabal, 2016-1561, p. 2 (La. App. 1 Cir. 9/21/17), 2017 WL 4214312, at *1 (unpublished):
The defendant, Wade Ybarzabal, entered a plea of guilty to a charge of misapplication of payments by a contractor, a violation of La. R.S. 14:202. The trial court deferred imposition of sentence under the provisions of La. [C.Cr.P.] art. 893, and placed the defendant on probation for a period of five years. In addition to the general conditions of probation, the trial court imposed restitution as a special condition of probation.
Thereafter, the defendant's probation officer moved for a hearing "to determine restitution amount and terms of payment." The trial court held an evidentiary hearing on the question of restitution. As set forth in this court's prior opinion:
Since the defendant pled guilty, the facts were not fully developed in this case. However, the following facts were established at the restitution hearing. On December 1, 2013, Stephen and Janna Perret (the victims) contracted with the defendant for the construction of a new home. The original contract price was for $279,331.70. Four amendments were made to the original contract: the addition of a garage for $24,983.80; foundation work in the amount of $7,607.00; an HVAC upgrade in the amount of $2,923.00; and the addition of a chair rail in the dining room for $1,333.00.
In December 2014, the Perrets were served with a petition for garnishment that asserted that a money judgment in the amount of $142,733.41 had been rendered against Ybarzabal Contractors, LLC in favor of Andrew Leblanc. The defendant acknowledged that he had been sued, and that garnishments were filed to satisfy the judgment. He testified that as a result of that lawsuit, he could not get a contractor license or insurance, and
had no choice but to leave the Perret job. He further admitted that he did not use money received for the Perret job to pay for materials related to the project.Ybarzabal, 2016-1561 at pp. 2-3, 2017 WL 4214312 at *1.
The defendant abandoned the Perret construction job around the end of December of 2014. On January 14, 2015, the Perrets sent a letter to the defendant, cancelling the December 1, 2013 construction contract.
At issue in the restitution hearing was the amount of restitution due to the Perrets as a result of the defendant's abandonment of the construction project. The parties stipulated that there were three unpaid liens, and attorney's fees related to the liens, in the amount of $52,633.66. The defendant acknowledged that the Perrets were entitled to restitution in the amount of the liens.
Mrs. Perret testified that the defendant was owed $32,157.18 under the contract at the time that he abandoned the project. She further testified that the Perrets had to pay $58,627.38 to complete the project. Thus, she calculated that in addition to the stipulated amount, the Perrets were due $26,470.20 ($58,627.38 less $32,157.18) to complete the project. The State introduced into evidence documents in support of that amount.
The defendant also testified at the hearing. He testified that he was to be paid in five draws of $51,676.24 for the project. He testified that at the time he abandoned the project he had not gotten the fifth draw, and that he had $22,000.00 of work into the project for which he was not paid. Thus, he did not believe that he owed any of the $26,470.20 claimed by Mrs. Perret.
After receiving testimony and evidence, the trial court took the matter under advisement. On May 6, 2016, the trial court signed a judgment ordering the defendant to pay restitution in the amount of $79,103.86.
That amount represented $26,470.20 in additional money paid by the victims to complete the project, as well as the $52,633.66 as referenced in the stipulation.
The defendant appealed the restitution order. On appeal, this court found that the record did not reflect that the defendant was present at the time the trial court imposed restitution, as required under La. C.Cr.P. art. 835. This court remanded the case for resentencing on the restitution order in the defendant's presence. See Ybarzabal, 2016-1561 at pp. 4-5, 2017 WL 4214312 at *2.
Following remand, the trial court resentenced the defendant during a hearing at which he was present. The trial court again ordered restitution in the amount of $79,103.86. The defendant now appeals his sentence and restitution order.
Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue, and we are obligated to recognize any lack of jurisdiction if it exists. Quality Envtl. Processes, Inc. v. Energy Dev. Corp., 2016-0171 (La. App. 1 Cir. 4/12/17), 218 So. 3d 1045, 1052-53. After the instant appeal was lodged, this court issued a rule to show cause on April 27, 2018, ordering the parties to file briefs discussing why the instant appeal should not be dismissed:
Wade Ybarzabal seeks to appeal an order of restitution rendered on November 2 , 2017.... However , it does not appear that the order of restitution at issue was ever memorialized in a signed judgment; the order appears solely in a minute entry dated November 2 , 2017....
LAW AND DISCUSSION
In his first assignment of error, the defendant argues that the trial court erred in awarding the victims more in restitution than was stipulated to by the parties at the restitution hearing. The defendant argues that he should have been ordered to pay restitution in the amount of the stipulated liens only and that any additional amount, such as damages for non-performance of contract or for attorney's fees, may be pursued through alternate civil law remedies. In his second assignment of error, the defendant argues that the sentence imposed is unconstitutionally excessive and unduly harsh. In his third assignment of error, the defendant argues that the trial court erred in failing to give him credit for work done for which he was not paid.
The defendant pled guilty to a charge of misapplication of payments by a contractor, a violation of La. R.S. 14:202, which provides, in pertinent part:
A. No person, contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction, erection, or repair of a building, structure, or other improvement, including contracts and mortgages for interim financing, shall knowingly fail to apply the money received as necessary to settle claims for material and labor due for the construction or under the contract.
The record reflects that the defendant pled guilty to misapplication of funds by a contractor in excess of one thousand dollars. Accordingly, as set forth in La. R.S. 14:202(C), the defendant received a felony sentence:
See La. C.Cr.P. art. 933; La. R.S. 14:2(4); State v. Mazique, 2006-708 (La. App. 5 Cir. 1/30/07), 951 So. 2d 1182, 1184 (a felony is an offense that may be punished by death or imprisonment at hard labor; a misdemeanor is any offense other than a felony). --------
When the amount misapplied is greater than one thousand dollars, whoever violates this Section shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned with or without hard labor for not less than ninety days nor more than six months, or both, for each one thousand dollars in misapplied funds, provided that the aggregate imprisonment shall not exceed five years.
Louisiana Code of Criminal Procedure article 881.1 provides, in pertinent part, with regard to the filing of a motion to reconsider sentence:
A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
[...]
B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.
[...]
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.
Furthermore, La. C.Cr.P. art. 881.2(A)(1) provides:
The defendant may appeal or seek review of a sentence based on any ground asserted in a motion to reconsider sentence. The defendant also may seek review of a sentence which exceeds the maximum sentence authorized by the statute under which the defendant was convicted and any applicable statutory enhancement provisions.
One purpose of the motion to reconsider sentence is to allow the defendant to raise any errors that may have occurred in sentencing while the district court still has jurisdiction to change or correct the sentence. State v. Emerson, 2004-0156 (La. App. 1 Cir. 10/29/04), 888 So. 2d 975, 979, writ denied, 2005-0089 (La. 4/22/05), 899 So. 2d 557. The defendant may point out such errors or deficiencies, or may present argument or evidence not considered in the original sentencing, thereby preventing the necessity of a remand for resentencing. State v. Mims, 619 So. 2d 1059 (La. 1993) (per curiam).
The thirty-day deadline provided by La. C.Cr.P. art. 881.1 prohibits a trial court from reconsidering its sentencing decision once the deadline has passed. An out-of-time motion to reconsider sentence is not contemplated by the Code of Criminal Procedure nor allowed by the jurisprudence. State v. Gedric, 99-1213 (La. App. 1 Cir. 6/3/99), 741 So. 2d 849, 852 (per curiam), writ denied, 99-1830 (La. 11/5/99), 751 So. 2d 239. Likewise, a motion for appeal is not a substitute for a timely motion to reconsider sentence and does not satisfy the requirements of La. C.Cr.P. art. 881.1. See State v. Gerald, 2013-1478 (La. App. 1 Cir. 5/2/14), 145 So. 3d 436, 438, writ denied, 2015-1370 (La. 2/13/15), 157 So. 3d 585.
A thorough review of the record indicates that the defendant did not orally move for reconsideration of sentence at the time of resentencing, nor did he subsequently file a written motion to reconsider sentence. Under La. C.Cr.P. arts. 881.1(E) and 881.2(A)(1), the failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider may be based, shall preclude the defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. State v. Ferguson, 2015-0427 (La. App. 1 Cir. 9/18/15), 181 So. 3d 120, 136-37, writ denied, 2015-1919 (La. 11/18/16), 210 So. 3d 282. Consequently, the defendant's failure to urge a claim of excessiveness and specific grounds for reconsideration of sentence by oral or timely written motion precludes our review of his assignments of error. See State v. Duncan, 94-1563 (La. App. 1 Cir. 12/15/95), 667 So. 2d 1141, 1143 (per curiam). As such, we find that review of the arguments raised in the defendant's assignments of error is procedurally barred.
For the foregoing reasons, the defendant's conviction and sentence are affirmed.
APPEAL MAINTAINED; CONVICTION AND SENTENCE AFFIRMED.
In response, the State filed a brief indicating that it requested that the trial court reduce its judgment to writing, which the trial court did in a judgment signed on May 8, 2018. This court then issued an interim order, ordering the trial court to supplement the appellate record with the May 8, 2018 judgment. See State v. Ybarzabal, 2018-0555 (La. App. 1 Cir. 8/20/18) (unpublished order). Following the trial court's supplementation of the appellate record with that judgment, this court maintained the appeal, reserving a final determination as to whether the appeal would be maintained to this merits panel. See State v. Ybarzabal, 2018-0555 (La. App. 1 Cir. 10/10/18) (unpublished order). We find that the May 8, 2018 judgment is a final judgment subject to our appellate jurisdiction; accordingly, the appeal is maintained. See La. C.C.P. arts. 1841 and 2083(A).