State of Louisiana Versus Evelyn M. Miller ( 2023 )

STATE OF LOUISIANA NO. 23-KA-63
VERSUS FIFTH CIRCUIT
EVELYN M. MILLER COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 20-1194, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
October 31, 2023
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Stephen J. Windhorst
SENTENCES VACATED; MATTER REMANDED FOR
RESENTENCING
FHW
SMC
SJW
COUNSEL FOR DEFENDANT/APPELLANT,
EVELYN M. MILLER
Sherry A. Watters
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Darren A. Allemand
Carolyn Chkautovich
WICKER, J.
In this criminal proceeding, defendant challenges the sentences imposed for
her convictions for assault with a firearm and aggravated criminal damage to
property. For the following reasons, we find that an error patent in the record
requires this Court to vacate the sentences imposed and remand this matter for
resentencing.
STATEMENT OF THE CASE
The Jefferson Parish District Attorney filed a bill of information charging
defendant, Evelyn M. Miller, with the second degree kidnapping of “Known
Juvenile” while armed with a dangerous weapon on or between February 14, 2020
and February 15, 2020, in violation of La. R.S. 14:44.1(A)(5)(count one); five
counts of aggravated assault with a firearm in violation of La. R.S. 14:37.4 (counts
two through six); and aggravated criminal damage to property in violation of La.
R.S. 14:55 (count seven). Defendant was arraigned and entered a plea in absentia
of not guilty on June 15, 2021.1
On August 24, 2022, the State amended the bill of information and nolle
prossed count one (second degree kidnapping of a “Known Juvenile”). On that
same date, defendant withdrew her pleas of not guilty to counts two through seven
and entered pleas of guilty as charged. After the reading of victim impact
statements and a statement made by defendant, the trial court sentenced defendant
to ten years at hard labor on counts two through seven, to run concurrently with
one another and with any other sentence defendant was currently serving. On
September 12, 2022, defendant filed a motion to reconsider sentence, which the
trial court denied. This timely appeal followed.
1
On June 2, 2020, a Motion, Affidavit, and Order to Waive Defendant’s Presence at Arraignment was
filed by the defense and was granted on the same date.
23-KA-63 1
FACTS
Because defendant’s convictions were the result of guilty pleas, the facts
underlying the convictions are not fully developed in the record. However, the
allegations presented to the court in a preliminary hearing indicate that the victim
of the alleged kidnapping in this case is defendant’s granddaughter, who had been
hospitalized the day before the crimes for allegedly being suicidal.
At the hearing, the State alleged that, the night prior to the crimes,
“[defendant] became upset with the hospital staff, so she stayed overnight in the
hospital with the victim. The following day, the victim was being taken to the
psych ward… . [Defendant] then asked to take the victim to the bathroom, which
staff stated was not allowed. [Defendant] then physically grabbed the victim and
proceeded towards the exit. When the nurses attempted to stop [defendant], she
produced a black handgun and pointed it at the nurses. During this time, the
defendant pointed the gun…[and] during the nurses’ attempt to stop [defendant]
from taking the victim, she shoved one of the nurses.” Defendant allegedly
proceeded to exit the hospital, while pointing the gun at security officers
responding to the situation. Thereafter, as defendant drove away she allegedly
crashed her vehicle into another vehicle, causing property damage.
Defense counsel alleged at the hearing that defendant “was acting under
what she believed to be the best interest of her granddaughter, who was living with
her at the time [and] who has a severe seizure disorder.” Defense counsel argued
that defendant did not believe hospitalization to a psychiatric ward would have
been in her granddaughter’s best interest given her severe seizure disorder
potentially triggered by the stress of a hospitalization.
At the guilty plea hearing, the State alleged the following factual basis:
[O]n or about February 14, 2020, Evelyn Miller did commit aggravated
assault with a firearm upon Clifton Thomas, aggravated assault with a
firearm upon Gene Bonin, aggravated assault with a firearm upon
23-KA-63 2
Jacquelin Esquivel, aggravated assault with a firearm upon Nancy
Acosta, aggravated assault with a firearm upon Nicole Wick[em], and
committed aggravated criminal damage to property, damaging a 2019
Toyota Sienna, belonging to Ashley McVille.
LAW AND ANALYSIS
On appeal, defendant challenges the constitutionality of the sentences
imposed. Specifically, she first argues that the maximum ten-year sentence
imposed for each aggravated assault conviction is constitutionally excessive for a
first offender given her age of 68 years old at the time of sentencing and
considering the mitigating circumstances surrounding her impulsive behavior as a
means to protect her autistic granddaughter. Further, on appeal, defendant
contends that the trial court “improperly imposed” restitution and fines in
connection with her sentences. Defendant challenges the lack of evidence to
support any restitution imposed and further claims that, as she is indigent and
incarcerated, that defendant is unable to pay the restitution and fines as ordered
by the trial court.
ERRORS PATENT
Before considering the merits of the assignments of error raised on appeal,
we find that an error patent requires that this Court vacate defendant’s sentences
and remand this matter for resentencing. This Court conducts an errors patent
review in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337(La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990), whether
or not the defendant or state requests such a review.
Upon review of the record on appeal, we find that defendant’s sentences
are indeterminate. On appeal, defendant challenges the sufficiency of the
evidence introduced to support the restitution she states was imposed in
connection with her sentencing. However, a thorough review of the record
reflects that it is unclear whether restitution, fines, or fees were imposed in
23-KA-63 3
connection with any of defendant’s sentences. Neither the waiver of rights guilty
plea form nor the Uniform Commitment Order referenced or imposed restitution,
fines, or fees as part of defendant’s sentences. The minute entry, however,
ordered defendant to pay $650 in fines and fees, and states that the trial court
ordered defendant to pay $1,000.00 in restitution but does not state on which
count or conviction the restitution was imposed. Moreover, the transcript, while
referencing a $1,000.00 cashier’s check at some point prior to sentencing, does
not reflect that the trial court imposed restitution or any fines or fees as part of
any sentence imposed.
Louisiana courts have found that the imposition of nonspecific restitution
in connection with a sentence or restitution ordered when it is unclear as to which
count or conviction the restitution applies is an indeterminate sentence and thus
invalid. See State v. Fussell, 06-2595 (La. 1/16/08), 974 So.2d 1223, 1226; see
also State v. Echeverria, 03-898 (La. App. 5 Cir. 11/25/03), 862 So.2d 163, 170
(vacating an indeterminate sentence where the trial court failed to state a
determinate amount of restitution owed); State v. Pope, 19-670 (La. App. 3 Cir.
6/10/20), 299 So.3d 161, 167, writ denied, 20-00852 (La. 10/6/20), 302 So.3d 532(holding “[t]he trial court imposed indeterminate sentences when it failed to
specify on which count or counts it imposed the…fine, court costs, and
restitution.”); State v. Duhon, 20-513 (La. App. 3 Cir. 5/26/21), 322 So.3d 326,
332 (holding that the imposition of restitution as part of “the sentence” when
multiple sentences were imposed rendered the sentence indeterminate); State v.
Vidrine, 19-210 (La. App. 3 Cir. 10/2/19), 280 So.3d 664, 671(holding that a
nonspecific restitution order will render the sentence indeterminate and thus
invalid). Moreover, failure to state the amount of restitution and to specify on
which count or counts the restitution is ordered “renders a sentence indeterminate
and thus illegal, necessitating that the sentence be vacated and the case remanded
23-KA-63 4
for resentencing.” State v. Joseph, 05-186 (La. App. 3 Cir. 11/2/05), 916 So.2d
378, 380; see also State v. Fussell, 974 So.2d 1226 (approvingly citing State v.
Joseph, supra).
Upon review of the record on appeal, we cannot determine whether
restitution was made a part of the guilty plea which resulted in the convictions
and sentences on appeal. We further cannot determine whether restitution, fines,
and/or fees were imposed as part of defendant’s sentences and find that, if
imposed, the trial court failed to state on which count or counts the restitution
would be imposed. We therefore vacate defendant’s sentences as indeterminate
and remand this matter to the trial court for resentencing.
SENTENCES VACATED;
MATTER REMANDED FOR
RESENTENCING
23-KA-63 5
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 31, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-KA-63
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
SHERRY A. WATTERS (APPELLANT) DARREN A. ALLEMAND (APPELLEE) THOMAS J. BUTLER (APPELLEE)
MAILED
CAROLYN CHKAUTOVICH (APPELLEE)
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053