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State v. Morales

Court of Appeals of Louisiana, Third Circuit

May 17, 2017

STATE OF LOUISIANA
v.
MEGAN E. MORALES -AKA- MEGAN ELIZABETH MORALES

         APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 88668 HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE

          Paula C. Marx Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Megan E. Morales

          Asa A. Skinner District Attorney, 30th Judicial District Court Terry W. Lambright First Assistant District Attorney COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

          Court composed of Shannon J. Gremillion, John E. Conery, and David E. Chatelain, Judges.

          DAVID E. CHATELAIN, [*] JUDGE

         The defendant, Megan E. Morales, appeals her sentence for identity theft, a violation of La.R.S. 14:67.16. For the following reasons, we affirm the decision of the trial court as amended and remand the case to the trial court with instructions.

         PROCEDURAL HISTORY

         On December 1, 2015, the defendant was charged by a bill of information for identity theft for the use of Jacueline Clark Wilson's [1] (Wilson) personal information for a Verizon cell phone account valued at $3, 739. The defendant entered a guilty plea on September 13, 2016, and a presentence investigation report was ordered.

         On November 16, 2016, the trial court sentenced the defendant to five years at hard labor and fined $1, 500 plus court costs. On November 22, 2016, the defendant filed a motion to reconsider sentence which the trial court denied the next day because "no specific facts [were] alleged and [it] gave reasons on record." The defendant timely appealed.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are three errors patent concerning the defendant's sentence.

         First, the trial court ordered the defendant to pay a fine and court costs, or in default of payment, to serve an additional twelve months in the parish jail. Court-appointed counsel represented the defendant in the proceedings in the trial court, and the Louisiana Appellate Project represented the defendant on appeal. This has been found to be presumptive evidence of indigence. State v. Holloway, 10-74 (La.App. 3 Cir. 10/6/10), 47 So.3d 56.

         In State v. Major, 03-249, pp. 2-3 (La.App. 3 Cir. 3/2/05) 898 So.2d 548, 550-51 (alteration in original), this court explained:

It is well-settled that "[a]n indigent person may not be incarcerated because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983)." State v. Zabaleta, 96-2449, p. 1 (La.3/7/97), 689 So.2d 1369. The need for incarceration raises an issue when fines or costs are not paid, because La.Code Crim.P. art. 884 requires that, when a trial court imposes a fine or costs, it must also impose a specified term of imprisonment in the event Defendant defaults on payment of the fine or costs. Because an indigent person may not be incarcerated for failure to pay a fine, the supreme court has vacated "the portion of . . . [a] sentence which provides for a jail term in the event of default of payment of a fine . . . ." Zabaleta, 689 So.2d 1369.

         Accordingly, we vacate the portion of the defendant's sentence which required her to serve twelve months in the parish jail in default of payment of the fine and court costs.

         Second, because the trial court imposed the fine and court costs as part of the defendant's principal sentence, and not as a condition of probation, they are payable immediately. La.Code Crim.P. art. 888. Therefore, we amend the defendant's sentence deleting the provision allowing for a payment plan for the $1, 500 fine and court costs imposed and instruct the trial court to make an entry in the minutes reflecting these amendments. State v. Bradley, 11-445 (La.App. 3 Cir. 11/2/11) (unpublished opinion).

         Third, the trial court properly set forth a payment plan for the restitution and fees imposed as conditions of probation, but failed to do so for the $150 to be paid to the Department of Corrections for the preparation of the presentence investigation report. "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." State v. Wagner, 07-127, p. 7 (La.App. 3 Cir. 11/5/08), 996 So.2d 1203, 1208.

         Therefore, we remand this case to the trial court for the establishment of a payment plan for the $150 to be paid to the Department of Corrections imposed as a condition of probation, noting that either the trial court or the Department of Probation and Parole, with approval of the trial court, may determine the plan.

         OPINION

         The defendant challenges her sentence as excessive, and she combines the interrelated assignments of error which are as follows:

I. The sentencing judge failed to individualize this sentence to this offender and offense; the sentencing judge failed to articulate for the record sufficient reasons to justify the sentence and further failed to ...

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