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State v. Blackwell

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2018





          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst


         Defendant, Ernest R. Blackwell, seeks review of his convictions and sentences for misapplication of payment by a contractor and engaging in business without a contractor's license. For the following reasons, we affirm defendant's convictions and sentences and remand with instructions.

         Statement of the Case

         On November 4, 2013, the District Attorney for St. John the Baptist Parish filed a bill of information charging defendant, Ernest R. Blackwell, with misapplication of payment by a contractor in an amount greater than one thousand dollars, in violation of La. R.S. 14:202 (count one), and engaging in business without a contractor's license, in violation of La. R.S. 37:2160 (count two).[1] Defendant was arraigned on November 20, 2013, and pled not guilty to the charged offenses. On September 15, 2015, trial commenced before a six-person jury and concluded on September 17, 2015, with a unanimous verdict of guilty on both counts.

         On September 30, 2015, the State filed a multiple offender bill of information pursuant to La. R.S. 15:529.1, alleging defendant to be a second-felony offender.

         On January 25, 2016, the trial court sentenced defendant on count one, misapplication of payment by a contractor, to fourteen months "incarcerated," with seven of the fourteen months suspended, and on count two, engaging in business without a contractor's license, to fifty-six months in the Department of Corrections, with thirty months suspended during which time defendant is to be placed on active probation. The trial court ordered that these sentences were to be served concurrently. Immediately after sentencing, defense counsel moved for the granting of his written motion for appeal filed on October 20, 2015, which the trial court orally granted.

         On February 16, 2016, after a hearing on the multiple offender bill, the trial court found the State had met their burden of proof as to the predicate convictions alleged in the multiple bill. On May 4, 2016, a restitution hearing was conducted. On September 9, 2016, the trial court ordered defendant to pay restitution on count one in the amount of $5, 510.11 to the victims in this case. The court then resentenced defendant as a second-felony offender, to five years imprisonment with the Department of Corrections on count one and six years imprisonment with the Department of Corrections on count two. The trial court further ordered defendant's enhanced sentences to run concurrently with each other and imposed a two thousand dollar ($2, 000) fine on each count.

         On June 19, 2017, defendant filed an application for post-conviction relief (APCR) seeking an out-of-time appeal. On August 14, 2017, finding an appeal had previously been filed on defendant's behalf, the trial court signed defendant's written motion for appeal, which was filed on October 20, 2015, and orally granted after sentencing in January of 2016.


         Defendant's convictions stem from repair work done for Thomas and Michelle Calmes. Mr. and Mrs. Calmes' home in LaPlace, Louisiana, was badly damaged in 2012 by Hurricane Isaac. In mid-September of 2012, Mr. and Mrs. Calmes hired defendant to perform repair work on their home because of his competitive quote, projected timeline, and "because he portrayed himself as a contractor who would do all the subcontracting" and supervise the work. According to Mrs. Calmes, defendant indicated that he was a licensed contractor able to perform all of her home repairs and that anything he was unable to do he would hire subcontractors to do. At trial, Mrs. Calmes testified that when meeting defendant, he provided her with a flyer indicating that he was with Professional Remodeling Specialists, aka "PRS, LLC" (PRS), which contained a license number (40025) indicating an association with "Dean Walters, Residential/Commercial State Licensed Contractor," as well as two email addresses, namely "" and "" Mrs. Calmes explained that she would have never hired someone who was not a licensed contractor.

         Defendant personally presented Mr. and Mrs. Calmes with two contracts for repair work, which they both signed on October 11 and 13, 2012. The first contract pertained to all labor and materials for repairs to their home with a contract price of $82, 500.00, and the second was for roof repairs with a contract price of $12, 000.00. Mrs. Calmes testified that the company listed on the contract was "Dean Walters, d/b/a Professional Remodeling Specialists, LLC," license number 40025, and was signed on behalf of PRS by Keely Authement.[2] Defendant told the Calmeses that Ms. Authement was a company officer, that she signed all contracts, and that he and Dean Walters were co-owners of PRS. Mr. and Mrs. Calmes never met either Ms. Authement or Mr. Walters.

         Work began on the Calmeses' home on October 15, 2012. At trial, Mrs. Calmes explained that the repairs to her home would be financed by insurance money paid directly to her mortgage company, Wells Fargo, who would then release payment to her and her husband. Defendant, as the contractor/owner of PRS, signed a waiver of lien, required by Wells Fargo, related to his work on the project.

         Mrs. Calmes testified that she and her husband paid defendant approximately $55, 000.00. The first check, dated October 18, 2012, was from Mrs. Calmes' personal bank account for $8, 000.00, written out to PRS, and was endorsed for deposit by Ms. Authement. The second check, dated October 25, 2012, was issued by Wells Fargo, made out to PRS and the Calmeses, and was for $6, 032.78. Mrs. Calmes testified that she and her husband, along with defendant and Ms. Authement, endorsed the check. A third check, dated November 8, 2012, was issued by Wells Fargo and was made out to PRS and the Calmeses, for $16, 661.19. The Calmeses and only defendant endorsed this check. The last check dated December 7, 2012, was from Wells Fargo, for $24, 964.47, and was made out to PRS and the Calmeses. The Calmeses endorsed this check and gave it to defendant.

         Mrs. Calmes recalled that once work commenced, there were problems with the sheetrock, paint, the wood flooring, and the kitchen and bathroom tile. She explained that defendant was difficult to contact and that defendant's subcontractors complained that defendant was not paying them for their work. Mrs. Calmes testified that while the contract stated that the price included labor and materials, the Calmeses spent approximately $8, 000.00 of their own money purchasing materials at defendant's request. Defendant told the Calmeses that he would reimburse them for their purchases but never did.

         Mrs. Calmes further testified that she and her husband selected cabinets and countertops from John Sun Kitchen and Bath (John Sun) as part of the repairs to be made to their home and that defendant only paid a portion of the money owed to John Sun, claiming that the cabinets had not been installed correctly. According to Mrs. Calmes, defendant was aware that money was owed for the cabinets and informed the Calmeses that it would be paid off. However, because the bill was not paid, a lien was placed on the Calmeses' home for the outstanding amount.

         The Calmeses terminated defendant's services on January 14, 2013, and filed a complaint against him with the state licensing board. They also took out an SBA loan in the amount of $39, 000.00 to cover the expenses they incurred by having to hire a new contractor.

         Thomas Calmes corroborated his wife's testimony, in pertinent part, confirming that defendant submitted an estimate for their home repairs from his personal email account to his wife's email, that he signed the contract given to him personally by defendant, that defendant represented to him that he was a licensed contractor, that defendant committed to doing their home repairs, and that defendant began work on their home on October 15, 2012. Mr. Calmes also testified that he contacted the licensing board before signing the contract with defendant and confirmed that the license number in the contract (40025) was a valid license. From the outset, Mr. Calmes recalled the progression of work to be slow and the workmanship to be poor. He further noted that when he and his wife terminated defendant's employment, they had paid him approximately $55, 000.00 and that their home was still not complete and was unlivable. Thus, Mr. Calmes testified that they hired a second contractor to finish the repairs.

         Todd Duhe, business owner of InspecTile, was qualified as a forensic expert on tile, stone, and flooring. He testified that in January of 2013, Mr. Calmes contacted him about incomplete work performed on his home. Upon inspection of the Calmeses' home, Mr. Duhe reported that the Calmeses were living in one bedroom of the house and were using the hallway bathroom. He noted several areas of concern regarding the workmanship performed on the house in the master bathroom, the hallway bathroom, the kitchen, and the wood flooring, all requiring removal and replacement of the materials used. Mr. Duhe concluded his report finding, "This entire installation reflects improper installation methods. Contractor did not follow minimum guidelines or procedures. Remove and replace all mentioned areas."

         At trial, Carl Bourque, residential compliance supervisor for the State Contractor's Board, testified that a home improvement license is required to perform residential work between $7, 500.00 and $75, 000.00. Mr. Bourque explained that a contractor is considered anyone who hires subcontractors, submits bids, supervises, or oversees a job. Based on licensing records, Mr. Bourque testified that defendant possessed a state license to perform residential contracting work some time in 2010 or 2011, but that his license was revoked on August 22, 2012, and then reinstated on October 22, 2012, with a retroactive date of October 18, 2012. Thus, there was a period of two months between August 2012 and October 2012 where defendant could not legally act as a residential contractor on jobs in excess of $7, 500.00 under the law.

         Mr. Bourque further testified that as residential compliance supervisor, he received a written complaint from the victims, Mr. and Mrs. Calmes, regarding defendant's work on their home. The Calmeses provided Mr. Bourque with a copy of their contracts with defendant dated October 11, 2012, and October 13, 2012, dates on which defendant did not possess a valid contractor's license. Mr. Bourque explained that: (1) a licensed contractor is not permitted to let another person use their license; (2) anyone who submits bids or presents a contract for residential work is required to have a valid license; (3) the person submitting a bid for home improvement work must submit it in his own licensed name; and (4) payment must be made to the licensed person submitting the bid.

         During Mr. Bourque's investigation of the Calmeses' complaint, Mr. Bourque contacted Dean Walters who, through written correspondence, maintained that he had never met the Calmeses before, that he had no knowledge of the project, and that he did not give defendant permission to use his license. Mr. Bourque also testified that defendant's license was revoked a second time; that prior to 2012 there had been several complaints from other homeowners regarding his work; and that the Board had previously found him guilty of practicing without a license.

         The St. John Parish Sheriff's Office detective, who investigated the Calmeses' complaint, testified that he obtained from them the flyer defendant gave them advertising his services and the $82, 500.00 renovation contract they entered into with defendant. During its investigation, the Sheriff's Office found the following information. Neither defendant nor PRS had a valid license at the time the contract was entered into with the Calmeses. The Calmeses' last check to defendant for approximately $25, 000.00 on December 12, 2012 was deposited into an account belonging to a different corporation, Professional Shoring Elevations. After depositing the Calmeses' $25, 000.00 check, defendant transferred $8, 000.00 into his personal savings account. On December 13, 2012, defendant paid John Sun $6, 000.00 for the Calmeses' cabinets via check. After this payment to John Sun, there was approximately a $2, 824.00 balance owed to John Sun, which defendant did not pay despite having received adequate funds from the Calmeses to cover the remaining balance. Because defendant failed to pay this balance, a lien was placed on the Calmeses' property by John Sun. There were also a series of checks totaling $7, 000.00 written out to Ms. Authement from the Calmeses' check that had been deposited into defendant's personal Chase account and several checks written out from the Chase account to defendant's relatives and to Mr. Walters. Defendant also used the money received from the Calmeses to make payments on other construction projects totaling $4, 000.00.

         During its investigation, the Sheriff's Office discovered from the Louisiana Secretary of State's website that PRS was incorporated on September 10, 2012 by Ms. Authement, who was listed as the registered agent and principal member. In ...

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