Opinion
2022 KA 0762
04-14-2023
STATE of Louisiana v. Michael J. DUFRENE
Scott M. Perrilloux, District Attorney, Livingston, Louisiana and Brett Sommer, Assistant District Attorney, Livingston, Louisiana, Counsel for Plaintiff/Appellee State of Louisiana Prentice L. White, Baton Rouge, Louisiana, Counsel for Defendant/Appellant Michael J. Dufrene
Scott M. Perrilloux, District Attorney, Livingston, Louisiana and Brett Sommer, Assistant District Attorney, Livingston, Louisiana, Counsel for Plaintiff/Appellee State of Louisiana
Prentice L. White, Baton Rouge, Louisiana, Counsel for Defendant/Appellant Michael J. Dufrene
BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.
McCLENDON, J.
Defendant, Michael 1 Dufrene, was charged by bill of information with three counts of forgery, violations of LSA-R.S. 14:72(B) (counts 1-3), and one count of theft over $1,500, a violation of LSA-R.S. 14:67(B) (count 4). Defendant pled not guilty and, following a jury trial, was found guilty as charged on counts 1-3. On count 4, defendant was found guilty of the responsive offense of theft with a value of $750 or more, but less than $5,000. Defendant was sentenced to seven years imprisonment at hard labor on each of the forgery convictions and to three years imprisonment at hard labor on the theft conviction. All four sentences were initially ordered to run consecutively, resulting in a total length of imprisonment of twenty-four years. Defendant made an oral motion to reconsider sentence, arguing that consecutive sentences were illegally harsh. The trial court granted the motion in part and ordered that the sentence for the theft conviction would run concurrently. The sentences for the forgery convictions remained consecutive. Consequently, the total length of the imprisonment was reduced from twenty-four years to twenty-one years. The trial court denied defendant's pro-se motion for amendment, modification, or reconsideration of sentence.
Defendant appealed, designating five assignments of error. This Court affirmed the convictions and sentences in State v. Dufrene, 2017-1496 (La.App. 1 Cir. 6/4/18), 251 So.3d 1114, 1126 (Dufrene I ). Defendant subsequently filed an application for writ of certiorari and/or review. In State v. Dufrene, 2018-1174 (La. 5/28/19), 273 So.3d 301 ( per curiam ) ( Dufrene II ), the Louisiana Supreme Court granted defendant's writ in part, vacated the sentences, and remanded for resentencing in accordance with Louisiana Code of Criminal Procedure articles 883 and 894.1.
Relevant to the instant appeal, we note that one of defendant's assignments of error in Dufrene I was that the trial court erred in imposing consecutive sentences and, as such, imposed excessive sentences. In Dufrene I , Defendant argued that the trial court erred by imposing consecutive sentences for the three forgery convictions because they arose from a common scheme or transaction, and the trial court did not offer any justification for running the sentences consecutively. Dufrene I , 251 So.3d at 1125.
On remand, defendant was sentenced to ten years imprisonment at hard labor on each of the forgery convictions and to three years imprisonment at hard labor on the theft conviction, to run consecutively. Thus, upon resentencing, the total length of defendant's imprisonment increased from twenty-one years to thirty-three years. The trial court denied defendant's motion to reconsider sentence. Defendant now appeals, arguing that the sentences imposed on remand are excessive. For the following reasons, we affirm the sentence on count 4, vacate the sentences on counts 1-3, and remand for resentencing on those counts.
The minutes state that counts one, two, and three were to be served consecutively, but count four was to be served concurrently to the other sentences. However, the sentencing transcript is clear that the trial court ordered all four sentences to be served consecutively. Where there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch , 441 So.2d 732, 734 (La. 1983).
The above statement of facts is adopted from Dufrene I , 251 So.3d at 1118.
Douglas Jiles's primary business was refurbishing pool tables and restoring vintage Rolex watches. On a few occasions, David Raiford, who was a friend of defendant, assisted Jiles in moving pool tables. On one particular date, Raiford and Jiles were on a job at Central Avenue Billiards in Amite. While Jiles was in the building, Raiford went inside Jiles's truck in the back parking lot of the business and took several of Jiles's blank personal checks, as well as a Rolex watch that was in the ashtray of the truck. According to Jiles, the value of the watch was approximately $2,600.00.
After taking the checks, Raiford filled out three of them and wrote defendant's name in the "Pay to the order of" section. Raiford also forged Jiles's signature on each of the three checks, which were in the amounts of $950.00, $450.00, and $500.00. Raiford then gave the checks to defendant to cash. Raiford also gave defendant the Rolex watch he had taken from Jiles's truck to defendant to sell.
On December 22, 2014, defendant cashed two of the checks at two different banks in Hammond. On the same day, defendant went to the Gold Into Cash pawn shop in Hammond and sold the Rolex watch for $200.00. The following day, on December 23, 2014, defendant cashed the third check at one of the banks he had visited the previous day. According to defendant, he gave all of the cash to Raiford.
On January 13, 2015, defendant went back to the pawn shop to try to sell a ring. The owner of the pawn shop called the police, and defendant was arrested. Detective Antoine Vicknair, with the Hammond Police Department, interviewed defendant that day regarding the checks he had cashed and the Rolex watch he had pawned. Defendant told the detective he did not realize that the checks he cashed were stolen or forged, and also stated that Raiford assured him the watch was not stolen, claiming it belonged to Raiford's cousin or uncle.
Defendant did not testify at trial.
ASSIGNMENT OF ERROR
In defendant's sole assignment of error, he argues that the consecutive sentences imposed on remand are excessive. Defendant specifically contends that the trial court committed reversible error by increasing defendant's twenty-one year sentence to thirty-three years following a remand from the Louisiana Supreme Court. Defendant maintains that, rather than providing justification for levying consecutive sentences against him at the time of the original sentences, the trial court focused on defendant's "new convictions," which were the result of guilty pleas defendant entered after the convictions at issue in this appeal. Defendant argues the trial court "simply wanted to place a harsh sentence on [his] shoulders without explaining why it determined that a consecutive sentence was proper." Defendant notes that the trial court focused heavily on his criminal record on remand, though it "informally skipped any discussion of his record during the 2017 sentencing." He argues that his new increased and consecutive sentences must be vacated because the trial court neither provided a sufficient explanation for why it imposed a twenty-one-year sentence in 2017, nor why it increased the sentence to thirty-three years upon remand.
While defendant, in brief, states that the prior sentence was twenty-four years, as previously stated herein, when the trial court granted in part defendant's oral motion to reconsider sentence, the trial court reduced the total length of the original term of imprisonment from twenty-four years to twenty-one years.
Defendant, in brief, states that the other offenses considered by the trial court upon remand occurred post-appeal. The dates on which the other offenses were committed or when the guilty pleas thereon were entered are not in the record before this Court. However, the record shows that the other offenses occurred prior to the trial on the instant offenses and that it was actually the guilty pleas on those offenses that occurred after the conviction and presumably the imposition of the original sentences in this case.
The State argues that on remand the trial court went through the LSA-C.Cr.P. art. 894.1 sentencing factors one-by-one, finding several aggravating factors and no material mitigating factors. The State further maintains that this Court has found that consecutive sentences are justified when the offender poses an unusual risk to public safety. Contending defendant was a first-time felony offender at his original sentencing, but was convicted of rape and intentional exposure to AIDS in the interim between the two sentencing hearings, the State argues that it is hard to disagree with the trial court's specific finding that it believed defendant's criminal conduct is likely to reoccur.
Pertinent to the matter before us, the record before this Court does not contain the dates on which the offenses resulting in defendant's "new convictions" were committed, nor does the record indicate the dates on which defendant pled guilty. However, the transcript of defendant's resentencing hearing reflects statements made by the trial court indicating that at the time of defendant's trial and conviction on the counts at issue in this appeal, other charges against him were pending, specifically aggravated rape of a minor, intentional exposure to AIDS, and three counts of contributing to the delinquency of a juvenile. The trial court's statements at the resentencing hearing further indicate that defendant pled guilty to the other charges, with the aggravated rape charge being reduced to forcible rape, after trial and conviction in this case, and presumably after the original imposition of sentences.
As noted, the Louisiana Supreme Court granted defendant's writ application in part in Dufrene II , 273 So.3d at 301-02. In doing so, the Supreme Court vacated defendant's sentences and remanded the case to the trial court "for resentencing in accordance with the provisions of [LSA-] C.Cr.P. art. 894.1 and [LSA-] C.Cr.P. art. 883, including the court's articulation of its reasons for the sentences imposed." On remand, the trial court delineated sentencing factors under Article 894.1 and articulated reasons for the resentencing. However, the trial court increased the sentences on the three counts of forgery from seven years on each count, to be served consecutively, to ten years on each count, to be served consecutively. Thus, defendant was penalized for successfully exercising his right of review.
The Louisiana Supreme Court in Dufrene cited for comparison State v. Green , 2016-0107 (La. 6/29/17), 225 So.3d 1033, 1042, cert. denied, ––– U.S. ––––, 138 S.Ct. 459, 199 L.Ed.2d 338 (2017). In Green, the defendant was sentenced to two consecutive four-year terms. However, because the defendant's conduct transpired within a very short period of time at one location, the presumption in favor of concurrent sentences applied, and the issue was "whether the trial court abused its discretion by imposing consecutive terms." The Green Court stated:
Absent well-articulated reasons from the sentencing court, we decline to say whether it was an abuse of discretion to impose consecutive terms. Thus, we will remand the matter to the trial court to consider whether defendant indeed poses a grave risk to public safety and, at a minimum, to articulate reasons for the consecutive terms. [Footnote omitted.]
Green , 225 So.3d at 1042.
Although the Louisiana Supreme Court vacated the original sentences and remanded for resentencing, the trial court's discretion in resentencing defendant was not unbridled. State v. Jenkins , 451 So.2d 1142, 1145 (La.App. 3 Cir. 1984). Louisiana Code of Criminal Procedure article 912.1 and Article I, § 19 of the 1974 Louisiana Constitution guarantee a defendant in a felony case a right to appeal. Appeals have always been favored in the law of this state. State v. Goodley , 423 So.2d 648, 651 (La. 1982), overruled in part by, State v. Gasser , 2022-00064 (La. 6/29/22), 346 So.3d 249.
Gasser overruled Goodley insofar as the Goodley court found that double jeopardy did not bar the State from retrying the defendant on the first degree murder charge after a conviction of manslaughter was reversed due to patent error. Gasser , 346 So.3d at 264-65. Justice Crichton stated in his concurring opinion, "it is important, in my view, to emphasize that the Court today leaves intact the portion of Goodley concerning the right to appeal—the issue that this Court ultimately found prevented Goodley's retrial." Gasser , 346 So.3d at 266 (Crichton, J., concurring).
In Goodley , 423 So.2d 648, the defendant was indicted on the charge of first degree murder. He was convicted by a ten-to-two jury of the responsive verdict manslaughter. The defendant appealed, but raised only the issue of the excessiveness of his sentence. However, the Louisiana Supreme Court found the verdict to be invalid because a unanimous verdict was required on a capital murder charge, even for a responsive verdict, and reversed the conviction on the basis of patent error. On remand, the State sought to retry the defendant for first degree murder. The defendant filed a motion to quash, alleging double jeopardy. Although a conviction of a lesser included offense ordinarily has the effect of an acquittal of a higher offense, under the circumstances presented, the Louisiana Supreme Court found that the defendant had not been validly convicted of manslaughter. Thus, the defendant had not been acquitted of first degree murder, and double jeopardy did not bar retrial on the first degree murder charge. Id. at 650.
Nevertheless, the Louisiana Supreme Court found that other constitutional protections did bar retrial on the first degree murder charge. The Louisiana Supreme Court specifically held, "we are of the opinion that to retry Goodley for the crime of first degree murder would be inconsistent with the right to appeal in Louisiana." Goodley , 423 So.2d at 651. Thus, the Goodley court concluded that to subject Goodley to a second prosecution for first degree murder would have a "chilling effect" on the exercise of his right to appeal in violation of La. Const. art. I, § 19 (1974). Id. at 652. See also State v. Washington , 380 So.2d 64, 65 (La. 1980) ( per curiam ) (concluding that, based on an accused's constitutional right to appeal under La. Const. Art. I, § 19, the State may not seek the death penalty on retrial of a capital offense where the defendant was originally sentenced to life imprisonment in the first prosecution and successfully challenged that conviction on appeal).
In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part by, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), the United States Supreme Court examined the trial court's authority to impose a more severe sentence when a defendant successfully attacked his first conviction and was reconvicted following a new trial. The Pearce Court found that the Due Process Clause of the Fourteenth Amendment prevented increased sentences when that increase was motivated by vindictiveness on the part of the sentencing judge. Thus, in order to ensure the sentencing court does not have a vindictive motivation when it imposes a more severe sentence after a new trial, the court's reasons for the increased sentence must appear in the record. Otherwise, a presumption arises that a greater sentence has been imposed for a vindictive purpose - a presumption that must be rebutted by objective information justifying the increased sentence. Alabama v. Smith, 490 U.S. 794, 798-99, 109 S.Ct. 2201, 2204, 104 L.Ed.2d 865 (1989).
In Pearce, the defendant was found guilty after trial and again found guilty on retrial. In Simpson v. Rice , a companion case decided with Pearce , the defendant initially pled guilty, successfully challenged that plea, and was then found guilty after a trial. The United States Supreme Court reached the same result in Pearce and Simpson . However, in Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 2202, 104 L.Ed.2d 865 (1989), the United States Supreme Court held that no presumption of vindictiveness arises when the first sentence was based upon a guilty plea, and the second sentence follows a trial. Alabama v. Smith, 490 U.S. at 801-02, 109 S.Ct. at 2205-07. Further, it has been held that no presumption of vindictiveness arises when a different judge imposes a harsher sentence on retrial. See Pearce, 395 U.S. at 725, 89 S.Ct. at 2080 ; Texas v. McCullough, 475 U.S. 134, 140, 106 S.Ct. 976, 979, 89 L.Ed.2d 104 (1986). Herein, the same judge presided over the proceedings.
The U.S. Supreme Court's ruling was based on the possibility that a trial court would increase a defendant's sentence after retrial in retaliation for the defendant having appealed his first conviction, resulting in a chilling effect on a defendant's due process right to appeal. The Pearce Court stated:
Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
Pearce, 395 U.S. at 725, 89 S.Ct. at 2080 (footnote omitted). Thus, the Pearce Court held that a judge who had originally sentenced a defendant could not impose a more severe punishment upon resentencing unless certain conditions were present: (1) the new sentence must be based upon objective information concerning the defendant's identifiable conduct occurring after the time of the original sentencing proceeding, and (2) the factual basis establishing such conduct must be included in the record. Pearce, 395 U.S. at 726, 89 S.Ct. at 2081.
The Louisiana Supreme Court has consistently followed Pearce . See State v. Allen, 446 So.2d 1200 (La. 1984) ; State v. Wise, 425 So.2d 727 (La. 1983) ; State v. Upton, 396 So.2d 1309 (La. 1981) ; State v. Franks, 391 So.2d 1133 (La. 1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 818 (1981) ; State v. Rutledge, 259 La. 543, 250 So.2d 734 (1971). The presumption of vindictiveness under Pearce can also apply to a remand for resentencing after a defendant has successfully challenged the sentence itself and not the conviction. State v. King, 275 Neb. 899, 750 N.W.2d 674, 678 (2008), cert denied, 555 U.S. 931, 129 S.Ct. 316, 172 L.Ed.2d 229 (2008) ; Jenkins, 451 So.2d at 1145. Thus, the underlying principles articulated in Pearce have equal application to instances, such as this case, wherein only the original sentence, and not the conviction, is successfully attacked.
In Rutledge , the defendant's guilty plea and sentence of one year imprisonment were vacated and he was subsequently tried before a jury, convicted, and sentenced to two and one-half years imprisonment, Rutledge, 250 So.2d at 735–36, 737–38. Because the reasons for the increase in the sentence did not appear in the record, the court found that the second sentence was constitutionally objectionable under Pearce . Id. at 737-38.
Pearce and subsequent cases "stand for the proposition that the imposition of a harsher sentence upon resentencing after a successful appeal or post-conviction relief petition would have a chilling effect on a defendant's due process rights of review and is not permissible absent articulated justification," State ex rel. Mitchell v. State, 580 So.2d 906, 908 (La. 1991), writ denied, 592 So.2d 1312 (La. 1992).
In State v. Freeman, 577 So.2d 216, 217 (La.App. 1 Cir.), writ denied, 580 So.2d 668 (La. 1991), the defendant was originally sentenced as a habitual offender to concurrent sentences of twenty-four years for simple burglary and twenty years for theft. Subsequently, his habitual offender adjudication was vacated, and he was resentenced to consecutive sentences of twelve years for simple burglary and ten years for theft. Id. This Court found no Pearce violation, stating:
[T]he defendant did not receive increased sentences upon resentencing. Although the trial court ordered the instant sentences to run consecutively, rather than concurrently (as it had done at the original sentencing hearing), there is no indication that the trial court was being vindictive. Instead, by imposing sentences totaling twenty-two years at hard labor, the trial court was obviously trying to come as close to its original sentencing scheme (a total of twenty-four years at hard labor) as possible. [Footnote omitted.]
Id. at 218-19.
In State v. Swan, 569 So.2d 155 (La.App. 1 Cir. 1990), the defendant was convicted of four felonies, cruelty to a juvenile (two counts), aggravated criminal damage to property, and illegal use of a weapon; and three misdemeanors, aggravated assault and simple battery (two counts). He appealed. This Court affirmed the convictions and misdemeanor sentences but found the felony sentences to be excessive and remanded the case to the trial court for resentencing. On resentencing, the defendant's sentences were substantially reduced, but a total of six months in the parish jail was imposed as a condition of probation. Id. at 156. No such jail term was required as a condition of the original sentence, no reasons were given at the sentencing hearing for the jail term as a condition of probation, and no information in the record justified the addition of the jail term as a condition of probation. Id. at 157. Thus, this Court, relying on Upton and Franks , deleted the two conditions of probation requiring the defendant to serve a total of six months in the parish jail. Id.
In this case, we find that the trial court was in violation of Pearce in imposing harsher sentences on remand. In increasing the sentences on remand for the forgery convictions, the trial court imposed maximum, consecutive ten-year sentences in addition to the above mid-range three-year sentence on the theft conviction. The trial court noted that subsequent to the instant convictions, defendant pled guilty to forcible rape, intentional exposure to AIDS, and three counts of contributing to the delinquency of a juvenile. However, as set forth above, the factual bases for these offenses are not included in the record. Moreover, the trial court's statements during the resentencing hearing indicate that the offenses occurred prior to the original sentencing, and the trial court was aware that the charges were pending at the time of the original sentencing. See Allen, 446 So. 2d at 1203 (finding that only conduct occurring after the time of the original sentencing can serve as a basis for the imposition of a harsher sentence upon reconviction). Thus, the record does not contain objective information concerning identifiable conduct by defendant that occurred after the original sentencing proceeding, such as may justify the imposition of a more severe sentence.
Herein, the trial court's act of increasing the original twenty-one-year combined term to a thirty-three-year combined term when the Louisiana Supreme Court remanded the case for resentencing in compliance with Articles 883 and 894.1 and to provide reasons for the sentences had a chilling effect on defendant's right to appeal, in contravention of the principles set out in Goodley and Pearce . Accordingly, we find merit in defendant's sole assignment of error. As we find that the sentences on the forgery convictions (counts 1-3) failed to satisfy the dictates of due process, and because the record cannot be altered once an appeal has been taken, we may not remand the case for supplementation of the record to satisfy Pearce 's requirements. Rutledge, 250 So.2d at 737-38. We must, therefore, remand the case for resentencing on counts 1-3 under the rules prescribed by the Pearce decision. See Allen, 446 So.2d at 1203 ; Upton, 396 So.2d at 1312 ; State v. Hidalgo, 96-403 (La.App. 3 Cir. 11/6/96), 684 So.2d 26, 31-32.
SENTENCE AFFIRMED AS TO COUNT FOUR; SENTENCES VACATED AS TO COUNTS ONE, TWO, AND THREE; MATTER REMANDED FOR RESENTENCING ON COUNTS ONE, TWO, AND THREE.
Greene, J., concurs
Holdridge, J., concurs with result