State v. MatthewsState v. Matthews
Michael J. Matthews was charged by multiple indictments with eighteen counts of forgery and seven counts of theft of $500.00 or more, violations of
1. The trial court erred in the sentencing of Michael J. Matthews, in that the court failed to consider any mitigating factors, the sentence is clearly unconstitutional and excessive for the nature of the offense, the sentence is grossly out of proportion to the severity of the crime, and in that sentence was handed down without the judge having been provided with a thorough and complete pre-sentence investigation report which left the judge without vital information necessary for his consideration of sentencing.
2. The trial court erred in failing to suspend Matthews’ sentences and in sentencing Matthews to consecutive rather than concurrent prison terms.
3. The trial court erred in precluding Matthews from forever practicing law, being employed in a non-attorney yet law-related field, and in precluding Matthews from acting as his own counsel as a condition of his future probation.
4. The trial court erred in sentencing the defendant to an excessive fifteen years probation inasmuch as the majority of restitution ordered had been prior to sentencing, defendant is a first offender and will not be in a position to recreate his crimes.
Assignment of error number four was not briefed on appeal and, therefore, is considered abandoned. Uniform Rules—Courts of Appeal, Rule 2-12.4.
FACTS
Defendant was an attorney practicing in Ascension Parish whose work included handling many cases on a contingent fee basis. Over the course of approximately three years, between May of 1985, and February of 1988, he misappropriated substantial sums of money from numerous clients, ultimately causing some of them financial ruin. After being charged with multiple counts of forgery and theft of $500.00 or more, defendant pled guilty to five counts of forgery and five counts of theft of $500.00 or more.
Defendant was subsequently sentenced by the trial court as follows. On the first forgery conviction, defendant received a sentence of five years at hard labor. For the first conviction of theft of $500.00 or more, defendant also received five years at hard labor to run concurrently with the five year sentence imposed on the first forgery conviction. Defendant was further sentenced to serve two five-year terms of imprisonment at hard labor for the second forgery conviction and the second conviction of theft of $500.00 or more. These two sentences were to run concurrently with each other; however, they were imposed to run consecutively with the two sentences imposed on the first forgery and theft convictions. The trial court also ordered that defendant be confined for a period of five years at hard labor for each of the three remaining forgery convictions and, also, for each of the three remaining convictions for theft of $500.00 or more. However, the trial court then suspended all of the sentences imposed on the latter
The trial court also imposed the following special conditions of probation. First, the trial court ordered restitution to the victims of the crimes herein as follows. It ordered defendant to pay the following sums to the following persons: to Michelle Wagner, $12,500.00; to Danny and Roxanne LaPorte, $3,000.00; to Paula Nunez, $35,000.00; to Michael Delaune, $75,000.00, and, finally, to Odis Wagner, $10,000.00. A further condition of probation was that defendant refrain from participating in any aspect of the legal profession within the State of Louisiana, including the practice of law as an attorney; performing any services either as a paralegal, law clerk or research assistant; or working as an investigator in any legal matters either for himself or on behalf of anyone else. The trial court also affixed a $25.00 per month supervision fee payable to the Department of Corrections while defendant was on probation.
EXCESSIVE SENTENCE:
Through his first assignment of error, defendant claims that the sentences imposed were unconstitutional and excessive given the nature of the offense, grossly out of proportion to the severity of the crime, and handed down without the trial court‘s having been provided with a thorough and complete pre-sentence investigation report, leaving it without vital information necessary for the consideration of sentencing. Defendant further avers that the trial court erred in failing to consider any mitigating factors in his favor.
A trial court‘s reasons in imposing sentence, as required by
Having pled guilty to five counts of forgery, defendant‘s maximum sentencing exposure on each forgery conviction was a fine of not more than $5,000.00 and a term of imprisonment, with or without hard labor, for not more than ten years, or both.
The trial court noted that a lesser sentence would deprecate the seriousness of defendant‘s crimes. In its opinion, defendant‘s criminal conduct caused serious harm, not only to several victims, but also to the legal system itself. The trial court was of the opinion that defendant, because of his occupation as an attorney, certainly must have contemplated that his criminal conduct would cause serious harm. The trial court further noted that the pre-sentence investigation report (PSI) did not indicate that there were any factors of provocation which may have induced the commission of these crimes, other than the defendant‘s greed. The trial court could find absolutely no justification for defendant‘s actions, and it indicated that the defendant‘s attitude did not show that he was unlikely to commit another crime of a similar nature. Further, the trial court indicated, after its review of the PSI, that defendant was dilatory and uncooperative when requested to make a statement to the probation and parole officer from the Department of Corrections. In closing, the trial court indicated that it was aware that the sentence imposed was lengthy.
In his brief to this Court, defendant argues that the PSI was incomplete in that it did not contain out-of-state bank statements of defendant. Defendant further argued that the trial court, in sentencing him, failed to take into account his personal history. Defendant emphasized the following factors: he had made almost total restitution to the victims herein; he was a first offender; these were nonviolent crimes; he was gainfully employed; the sentences imposed would cause a hardship on his family; and the mitigating factors of voluntary submission to professional treatment and voluntary resignation from the bar were not taken into account by the trial court. Further, defendant argued that it was error for the trial court to take into account the harm done to “alleged victims” herein. Defendant went on to argue that the crimes herein are not uncommon and that it was improper to punish defendant for any collateral damage that may have been done to “the Bar.” Defendant also emphasized the fact that he pled guilty herein and saved the state the expense of going to trial. Also, in his brief to this Court, defendant made a comparative analysis of the sentences handed down in cases involving other attorneys who have misappropriated funds from their clients. Defendant even cites a case wherein a judge from the parish in which he primarily practiced was involved in a mail fraud scheme. Defendant maintains that he has kept a good attitude throughout this ordeal and that he has removed himself from the temptation of his crimes, namely, that of practicing as an attorney. Finally, defendant submits that the requirements of restitution to the victims are incompatible with the prison sentences imposed herein.
First, the PSI herein is sufficient and complete. Further, there is little support in
We find that the trial court more than adequately complied with the sentencing guidelines of
However, we note patent sentencing error in regard to the terms of imprisonment imposed and the conditions of restitution to the various victims herein. The ordering of payment of restitution to a victim is not authorized unless the imposition or execution of sentence is suspended. See
FAILURE TO SUSPEND SENTENCES AND IMPOSITION OF CONSECUTIVE RATHER THAN CONCURRENT SENTENCES:
Through his second assignment of error, defendant avers that the trial court erred in failing to suspend his sentence and in sentencing him to consecutive rather than concurrent prison terms. Defendant reiterates some of the arguments made under assignment of error number one and also asserts that the suspension of the terms of imprisonment imposed herein or the placing of defendant on probation should be given preference over confining him to custodial care. Defendant further argues that, in applying the factors enumerated in
There is ample justification in the record for the trial court‘s effectively sentencing defendant to two consecutive five year terms of imprisonment. Further, defendant‘s above arguments are misplaced,
Accordingly, defendant‘s assignment of error is without merit.
PERMANENT DISBARMENT AND PRECLUSION OF SELF-REPRESENTATION:
In his third assignment of error, defendant contends that the trial court erred in precluding him from forever practicing law, being employed in a non-attorney, yet law-related field, and in precluding him from acting as his own counsel as a condition of his probation. Defendant contends that the trial court was without power or jurisdiction to impose such a limitation upon him as a condition of probation. Defendant further contends that the trial court impinged upon his right to counsel when, as a condition of probation, it precluded him from acting as his own counsel.
When a trial court places a defendant on probation, it may impose any specific conditions reasonably related to his rehabilitation.
Initially, we note that, considering the nature of the instant offenses, those conditions of probation precluding defendant from the practice of law or employment in any legally-related field are reasonably related to his rehabilitation. See
Finally, considering the defendant‘s constitutional right to self-representation, we find that the trial court erred in imposing the condition of probation preventing him from acting as his own counsel. Thus, this condition of probation is vacated.
Accordingly, the defendant‘s convictions are affirmed. The sentences are amended in that, as noted above, certain conditions of probation are vacated or modified. As amended, the sentences are also affirmed.
CONVICTIONS AFFIRMED. SENTENCES AMENDED AND, AS AMENDED, AFFIRMED.