State v. SandersonState v. Sanderson
This is an out-of-time appeal of a conviction and sentence, and particularly a condition of probation imposed upon suspension of thе sentence. The Defendant is James Sanderson,
The Defendant engaged in a sexual relationship in 1992 with a sixteen-year-old girl who was in the foster care of the State of Louisiana. The victim was mentally retarded and the State learned that she was being sexually аbused by other men in her family and neighborhood. The victim gave birth to a son, Kristoff, and the State suspected that the Defendant was the father of this child.
The State charged the Defendant with carnal knowledge of a juvenile and the case proceeded to trial on May 17, 1994. During trial, the Defendant decided to plead no contest to the charge. The trial judge ordered a presentence investigation report. At sentencing on December 5, 1994, the victim testified that she was not sure who was the father of her son, but that the Defendant had acknowledged verbally he was the father and the people with OCS had said the Defendant was Kristoff‘s father. The victim also said she did not want the Defendant to go to jail since she did not have a father while she was growing up and she wanted her child to have a father.
The trial judge sentenced the Defendant to three (3) years at hard labor; this was the maximum sentence recommended by the then applicable Sentencing Guidelines Grid. The trial judge suspended all of the sentencе and placed the Defendant on five (5) years supervised probation, subject to general conditions of
On January 25, 1995, the Statе filed a Motion and Order for Paternity Blood Test. This motion was filed in the criminal case, but it relied upon the provisions of
The record indicates that the Defendant‘s probation officer informed the court on September 28, 1995, that the total amount due for child foster care and child support was approximately $30,211.23, that this amount was beyond the Defendant‘s capacity to pay, and that a determination was needed for the total amount of restitution and monthly payment. The court minutes indicate that a probation revocation hearing occurred on November 6, 1995, and the trial court realized that the Defendant was ordered to reimburse the State the cost of care for the child and not the mother; therefore, the $30,211.23 amount was incorrect. The minutes show that the State was ordered to provide accurate information concerning the costs of care for the child; the Defendant‘s probation was not revoked.
Nothing happened in this case until May of 1997. A second probation revocation hearing was invoked by the Defendant‘s probation
When OCS failed to prоduce the required information within 30 days, counsel for the Defendant filed a Motion to Remove Special Condition of Probation on July 28, 1997, 47 days after the deadline set by the court. A third hearing occurred on August 11, 1997, and it has resulted in the present appeal.
At the hearing, counsel for the Defendant objected, on the grounds of hearsay, to thе court using a computer printout of the costs of care of Kristoff and his mother without the State presenting a witness who could explain the charges. The trial judge overruled the objection and said he calculated that the foster care costs for Kristoff totaled $14,404.89.2 The trial judge also ruled that the untimeliness of the OCS response to its request did not prejudice anybody.
The Defendant now appeals the ruling of the trial court setting a final determinate figure for restitution owed to the State. Although initially sentenced in 1994, the precise amount of restitution owed was not set by the trial court until the August 11, 1997 hearing. This issue may be reviewed as part of the assignment of error or as an errоr patent since the sentence may be considered illegal. Cf. State v. Iles, 96-256 (La.App.3 Cir. 11/6/96); 684 So.2d 38.
The Defendant argues the sentence imposed upon him is illegal because the restitution to the State of Louisiana for the costs of care of the child born from the illegal sexual encounters between the Defendant and the victim is not permitted by law. The assignmеnt of error refers specifically to the evidence presented and the lack of a proper foundation. However, since ordering restitution in the first place may have been inappropriate, we have combined our error patent review with the assigned error review.
When the court places a defеndant on probation, the court may require as a condition of that probation the defendant‘s payment in restitution of any monetary loss or medical expenses incurred by the victim or his family.
In dealing with conditions of probation and, more particularly, with payment of restitution as a condition of probation,
A. When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following:
That the defendant shall:
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(7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the cоurt; * * *.
At the time the Defendant committed the crime in 1992,3 the provisions of La.Code
A. When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any monetary loss or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim. The payment shall be made, in the discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.
B. When a court suspends the imposition or the execution of a sentence and places the defendant on probation, it may in its discretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all or the following:
(1) To the indigent defender program for that court.
(2) To the criminal court fund to defray the costs of operation of that court.
(3) To the sheriff and clerk of court for costs incurred.
(4) To a law enforcement agency for the reasonable costs incurred in arresting the defendant, in felony cases involving the distribution of or intent to distribute controlled dangerous substances.
(5) To the victim to compensate him for his loss and inconvenience. Such an amount may be in addition to any amounts ordered to be paid by the defendant under Paragraph A herein.
(6) To a duly incorporated crime stoppers organization for the reasonable costs incurred in obtaining information which leads to the arrest of the defendant.
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The trial judge acknowledged that the original victim is the juvenile mother of the child. However, the trial judge did not order restitution for any of the damages suffered by the mothеr, such as medical expenses related to the pregnancy. The trial judge then said that the other victims would be the parents of the mother, but that in the present case the mother was in the custody of the State. Therefore, the State took the place of the parents and was also a victim. The trial judge ordered the Defendant to pay restitution to the State for the costs of foster care of the young child.
The first problem with this condition of probation is that Article 895.1 does not list the State as one of the parties who may receive restitution as a condition of probation. The trial judge considered the State the “victim” of the Defendant‘s criminal activity, but the State has other means to seek restitution or reimbursement from the biological parent for the costs of supporting the child. As the Louisiana Supreme Court has stated, the restitution provisions of
Further, the costs of child rearing resulting from the unplanned and unwanted birth of the young child conceived by a criminal sexual act are not compensable damages. In Latullas v. State, 94-2049 (La.App. 1 Cir. 6/23/95); 658 So.2d 800, a guard at a women‘s prison raped one of the inmates and she gave birth to a child later determined to be the child of the guard. The rape victim sued the State and the guard and she was allowed recovery for the expenses incurred during pregnancy and delivery, but not child-rearing expenses since these expenses are off-set by the “benefit” brought about by the birth of the child. Id., at 806, citing Pitre v. Opelousas General Hospital, 530 So.2d 1151 (La. 1988). The Latullas opinion further refused to award damages to the child for humiliation that may be sufferеd from the stigma of being the product of a rape; such a claim was considered tantamount to a “wrongful life” claim rejected in Pitre. If the trial court could not award damages for the birth of Kristoff in a civil action, then it is difficult to see how such an award of damages could
That leads to the second problem with the condition of prоbation. The Diaz ruling hinted that restitution as a condition of probation cannot serve as a substitute for civil remedies such as a civil judgment.
Bеfore a man may be ordered to pay child support or ordered to reimburse the State for the support of his child, his obligation to provide support as the biological father of the child must first be established. Fathers owe alimony to their illegitimate children when they are in need.
If a trial court is allowed to impose child support obligations upon an alleged father of an illegitimate child as a condition of probation, without complying with the requirements of
Removing this condition of probation does not deprive the State of any recourse for reimbursement. The State instituted a separate civil action against the Defendant for the purpose of establishing paternity and the payment of child support, or reimbursement as provided by
Since the restitution portion of the Defendant‘s sentence is vacated as an illegal sentence, the formal assignments of error will not be addressed since they have been rendered moot.
For the reasons assigned, Defendant‘s sentence setting forth a condition of probation that the Defendant rеimburse the State for foster child care costs for the child born as a result of the Defendant‘s criminal sexual relations with the juvenile mother should be vacated. The proper recourse for the State for reimbursement is by civil proceedings to establish filiation or paternity by the Defendant, and thereby an obligation to reimburse the State or pay child support.
VACATED IN PART AND AFFIRMED IN PART.
SAUNDERS, J., dissents and assigns written reasons.
SAUNDERS, Judge, dissenting.
I feel that this was a reasonable condition of probation and would affirm.