State Of Louisiana VS Edmund Leblanc
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N T DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL C FIRST CIRCUIT 2010 KA 1281 STATE OF LOUISIANA VERSUS EDMUND LeBLANC Judgment Rendered FEB 1 1 2011 On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No 12 070130 Honorable Bob Hester Judge Presiding Hillar C Moore III District Attorney Counsel for Appellee State of Louisiana William Morris Assistant District Attorney Baton Rouge Louisiana James G Knipe III Counsel for DefendantAppellant Prentice White Edmund LeBlanc Baton Rouge Louisiana BEFORE WHIPPLE MCDONALD AND MCCLENDON 33 McCLENDON J Defendant Edmund LeBlanc was charged by bill of information with misapplication of payments by a contractor a violation of LSAR 14 S 202 Defendant entered a plea of not guilty waived his right to a trial by jury and was found guilty as charged after a bench trial The trial court sentenced defendant to five years imprisonment at hard labor suspended execution of the sentence and placed defendant under supervised probation for five years In addition to the general conditions of probation the trial court imposed the following special conditions a 50 monthly supervision fee restitution in the 00 amount of 17 and one hundred hours of community service The trial 00 351 court granted in part the motion to reconsider sentence as to the request to suspend the sentence pursuant to LSAC art 893 but denied the motion to P Cr reconsider sentence as to the request to waive the supervision fee and vacate the restitution order Defendant now appeals assigning error as to the order to pay restitution Based on the following reasons we affirm the conviction and sentence and remand with instructions STATEMENT OF FACTS Homeowners Doug and Stacy Barron the victims entered into a contractual agreement with defendant to have him construct an addition to their home in exchange for a total payment of 45 to be paid in three 00 000 installments the first upon execution of the contract the second at the halfway mark and the final upon completion of the project According to Paul Bourque the State Residential Compliance Supervisor of the State Contractor Board s s s defendant contractor license was revoked on or before February 27 2007 before defendant entered improvements into the contract to construct the victims home On March 9 2007 the victims paid defendant construction s company LeBlanc Construction Maintenance LLC the first installment of 1 Due to inconsistencies it is unclear from the record whether defendant name is Leblanc or s LeBlanc Herein defendant last name is listed as LeBlanc s I 00 000 15 By June 3 2007 the victims paid defendant two additional payments totaling 15 00 000 Ronnie Foster of On Track Construction LLC entered into a verbal sub contractual agreement with defendant to perform the victims residential project The construction on the home commenced at the beginning of May 2007 On May 24 2007 defendant paid Foster 3 On May 29 2007 defendant 00 840 submitted another check to Foster but it was insufficiently funded and thus not honored by the bank On June 18 2007 defendant paid Foster 4 and 00 500 submitted another insufficiently funded check on June 29 2007 At this point Foster had completed a significant portion of the contract including the following pouring concrete framing performing exterior work electrical and plumbing and an inspection in preparation for sheetrock invoices were submitted Corresponding Defendant had paid Foster a total of 8 and 00 340 according to the final invoice was indebted to Foster for the total amount of 00 300 21 when Foster pulled out of the project As a result of the delay in construction the victims lived with a blue tarp as a back wall for a significant time period Defendant told Stacy Barron that he could resume the project if they would pay him an additional 3 and the victim remitted a payment in 00 000 that amount to defendant on August 21 2007 Defendant contacted Larry Case and entered into a verbal agreement with him to make construction improvements for the project for approximately 2 or 3 00 000 00 000 Case delivered approximately 900 worth of sheetrock and performed tasks to 00 complete the construction job such as reframing doors and a pull down staircase moving a wall and additional work near a hot tub Case replaced the blue tarp with plywood to prevent the entry of insects and rodents and to retain air conditioning Although several tasks were completed during a three to four 2 Though variations are contained in the record herein the name of defendant construction s company is listed as stated in the contractual agreement with the victims KI day period defendant did not compensate Case for the work as agreed and Case abandoned the project The victims contacted the police and on September 5 2007 Officer Chris Lechuga of the East Baton Rouge Parish Sheriff Office met with Stacy Barron s Stacy Barron informed Officer Lechuga that the job was seventy percent complete In October 2007 the victims contracted with Legrendre Construction to complete the project and paid them a total of 29 00 486 The bill of information charging defendant with the instant criminal offense was filed on December 6 2007 In an attempt to collect the debt from defendant Foster contacted his attorney and a lien was placed on the victims residence and a series of correspondence requesting payment was sent to defendant Defendant did not respond to the letters A petition for damages was filed on January 24 2008 and a judgment against defendant was entered on March 14 2008 On July 7 2008 Foster canceled the lien against the Barron residence after receiving 00 000 35 as payment for defendant debt attorney fees and expenses s s ASSIGNMENT OF ERROR In his sole assignment of error defendant argues that the trial court erred andor abused its discretion in ordering unjust excessive and unlawful Defendant contends that LSAR S restitution in the amount of 17 00 351 202D 14 requires him to pay the victims the amount of money that was not properly applied While acknowledging that 24 was not properly applied 00 660 in this case defendant notes that prior to sentencing he paid Foster 35 00 000 to release the lien against the victims residence result of the 00 000 35 payment and the Defendant notes that as a previous payments totaling 00 340 8 Foster received a total of 43 an amount that exceeds the 00 340 total payment defendant received from the victims by 10 00 340 Defendant argues that LSAR S 202 14 does not contemplate this scenario wherein the contractor paid the subcontractor the amount owed to him and in doing so remediates the misapplication and pays out all monies paid to 2 him by the victims Defendant contends that any amount now paid to the victims would subject the homeowners to unjust enrichment Defendant notes that according to Foster trial testimony the job was 85 complete when he s stopped working on the victims home while police reports indicate that Stacy Barron informed the police that the job was 70 complete Based on those estimations defendant contends that the victims received at least 70 of the job for the price of 33 73 of the contract price 00 000 3 Defendant concludes that the applicable restitution statute does not authorize restitution that exceeds the amount of sums not properly applied other than legal and court processing costs and contends that the restitution order in this case should be vacated In ordering restitution the trial judge has discretion and his decision will not be disturbed absent an abuse of this discretion State v McGloster 303 2d So 739 La 1974 State v Averette 992054 p 6 La 1 Cir App 00 23 6 764 So 349 352 State v Stephenson 30 p 5 La 2 2d 271 App Cir 1 706 So 604 607 writ denied 980426 La 6 720 98 21 2d 98 19 2d So 1211 Louisiana Revised Statute 14 provides in pertinent part as 202 follows 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 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 D Any person contractor subcontractor or agent of a subcontractor who knowingly fails to apply construction contract payments as required in Subsection A shall pay to the court and the court shall transfer to the person whose construction contract payments were misapplied an amount equal contractor or to the sum of the payments not properly applied and any additional legal costs resulting from the misapplication of construction fund payments including a fee charged by the clerk of court for handling such payments In addition LSAC art 895 provides in pertinent part P Cr A When the court places a defendant on probation it shall require the defendant to refrain from criminal conduct and to pay a E supervision fee to defray the costs of probation supervision and it may impose any specific conditions reasonably related to his rehabilitation including any of the following That the defendant shall 7 Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court Under LSAC art 895 a trial court may impose any specific condition of P Cr probation reasonably related to a defendant rehabilitation s A condition so harsh however that the probationer is destined for failure serves no purpose State v Carey 392 So 443 444 La 1981 per curiam Louisiana Code of 2d Criminal Procedure article 895 provides in pertinent part 1 A 1 When a court places the defendant on probation it shall as a condition of probation order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash any monetary loss pursuant to damage to or loss of property or medical expense The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain The restitution payment shall be made in discretion of the court either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant B When a court suspends the imposition or the execution of a sentence and places the defendant on probation it may in its discretion order placed as a condition of probation an amount of money to be paid by the defendant to any or all of the following EEMME33 5 To the victim to compensate him for his loss and inconvenience Such an amount may be in addition to any amounts ordered to be paid by the defendant under Paragraph A herein In excessive sentence assignments of error this court recognizes the wide discretion of the trial court and requires a manifest abuse of discretion be demonstrated before setting aside a sentence State v Lobato 603 So 2d 739 751 La 1992 Averette 992054 at p 6 764 So at 352 Based on 2d the documentation presented during the trial the victims contracted with defendant to have the extension project completed for a total payment of 00 000 45 The victims paid defendant a total of 33 Thus under the 00 000 L contract an additional 12 would have satisfied the original payment 00 000 obligation for the project However the victims had to pay an additional 00 486 29 to have the project completed as a result of the defendant actions s 00 486 and the cessation of the project Thus the victims paid 17 above the original monetary obligation to have the project completed Based on the foregoing we conclude that the restitution figure is not excessive because it essentially represents the amount of actual pecuniary losses suffered by the victims as allowed by LSAC art 895 P Cr 1 1A The 35 payment 00 000 made by defendant in compliance with the judgment against him removed the lien from the victims home but did not negate the above detailed pecuniary loss and the inconvenience suffered by the victims as a direct result of the instant offense LSAC art 895 Based on the foregoing we find that the P Cr 5 1B trial court did not abuse its discretion in ordering restitution in this case Accordingly the sole assignment of error lacks merit REVIEW FOR ERROR In accordance with LSAC art 920 the record has been reviewed for P Cr errors on the face of the record and one error was discovered The trial court failed to establish a payment schedule for the payment of restitution as required by LSAC art 895 Accordingly we remand the matter to the trial court P Cr 1A for a determination of the manner in which restitution should be paid either in a lump sum or in monthly installments based on defendant earning capacity and s assets State v McGee 080395 p 7 La 5 Cir 10 996 So App 08 28 2d 1191 1195 writ denied 082791 La 6 9 So 868 09 5 3d CONVICTION AND SENTENCE INSTRUCTIONS 7 AFFIRMED REMANDED WITH
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