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State v. Ducksworth

Court of Appeals of Louisiana, Fifth Circuit

February 27, 2019

STATE OF LOUISIANA
v.
AKANDO DUCKSWORTH

          Counsel for Plaintiff/Appellee, State of Louisiana, Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Joshua K. Vanderhooft.

          Counsel for Defendant/Appellant, Akando Ducksworth Holli A. Herrle-Castillo.

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-6406, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

          ROBERT A. CHAISSON, JUDGE.

         This is the second appeal of defendant, Akando Ducksworth, and pertains only to the restitution hearing conducted on August 16, 2018. In this appeal, defendant's appointed appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there are no non-frivolous issues to be raised on appeal and requesting permission to withdraw as attorney of record for defendant. We agree with counsel's assertion, affirm the imposition of restitution, and grant appellate counsel's motion to withdraw as attorney of record for defendant.

         PROCEDURAL HISTORY

         On August 31, 2016, following a jury trial, defendant was found guilty of attempted manslaughter, in violation of La. R.S. 14:27 and 14:31, and on September 6, 2016, was sentenced to twelve years imprisonment at hard labor. Immediately after sentencing, defendant filed a motion for appeal, which the trial court granted that same date.

         On January 5, 2017, subsequent to the granting of defendant's appeal motion, the trial court conducted a restitution hearing. At that hearing, the medical bills of the victim, Joshua Hardin, were introduced into evidence, and the parties thereafter stipulated that restitution was owed to the victim in the amount of $166, 488.76.

         On December 13, 2017, on original appeal, this Court affirmed defendant's conviction for attempted manslaughter and his sentence of twelve years imprisonment at hard labor.[1] See State v. Ducksworth, 17-35 (La.App. 5 Cir. 12/13/17), 234 So.3d 225.

         On January 9, 2018, defendant filed a pro se motion for a contradictory hearing to correct an illegal sentence, arguing that the trial court did not have jurisdiction to order restitution on January 5, 2017, pursuant to La. C.Cr.P. art. 916, because his appeal was pending at that time. The trial court agreed with defendant's argument, granted his motion, and set the matter for a contradictory hearing and resentencing.

         At the August 16, 2018 hearing, the victim, Mr. Hardin, testified regarding the medical expenses he incurred as a result of defendant's actions and introduced into evidence the medical bills related to the treatment he obtained as a result of the offense. After the presentation of the evidence, defense counsel requested the court reconsider the original sentence imposed, asserting that while defendant desired to make restitution payments, he would be unable to do so while incarcerated. The trial court declined to resentence defendant on the original sentence of twelve years, noting that this Court had already upheld that sentence. See State v. Ducksworth, 234 So.3d at 237.

         Pursuant to La. C.Cr.P. art. 883.2, [2] the trial court then ordered defendant to pay restitution in the amount of $166, 488.76 based upon the documents submitted. The trial court also directed the payments begin upon defendant's release from incarceration. Defense counsel objected and thereafter filed a motion for appeal, seeking review of the trial court's denial of resentencing and the order of restitution. The trial court granted defendant's motion for appeal and appointed appellate counsel to represent him.

         Thereafter, on September 11, 2018, defendant filed a pro se notice of intent to file for supervisory writs, seeking review of the trial court's August 16, 2018 denial of his motion for a contradictory hearing to correct an illegal sentence. On September 20, 2018, the trial court set a return date of November 5, 2018, for defendant's writ application. Defendant did, in fact, file a writ application with this Court seeking review of the trial court's August 16, 2018 ruling. On October 24, 2018, this Court denied defendant's pro se writ application, finding that defendant had failed to provide the necessary documentation for review as required by Rule 4-5(C) of the Uniform Rules-Courts of Appeal and also noting that defendant's motion for appeal from the August 16, 2018 ruling had been granted.[3] See State v. Ducksworth, 18-516 (La.App. 5 Cir. 10/24/18) (unpublished writ disposition).

         After defendant's appeal was lodged in this Court on November 2, 2018, his appointed appellate counsel filed a brief pursuant to Anders v. California, supra, and a motion to withdraw as attorney of record for defendant. On December 6, 2018, the State filed a motion to dismiss the appeal for lack of jurisdiction, contending the denial of defendant's motion to correct illegal sentence is not an appealable judgment. On December 13, 2018, this Court denied the ...


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