State v. SchwehmState v. Schwehm
Defendant, Jerry Schwehm, was convicted of two counts of malfeasance in office, violations of
FACTS
On December 13, 1990, defendant, a practicing attorney, was sworn in as the Justice of the Peace for Ward 8 of St. Tammany Parish. In January of 1994, the office of the legislative auditor conducted an audit of defendant‘s office. The investigation revealed that, as of the time of the investigation, defendant had not remitted to St. Tammany Parish any portion of the litter fines he had imposed and collected. Subsequently, defendant was indicted for two counts of malfeasance in office alleged to have occurred between January 1, 1991 and December 31, 1993. Count one charged that defendant failed to remit to St. Tammany Parish litter fines he collected as required by statute and parish ordinance. Count three charged that he illegally collected fees and charged persons for the lodging and filing of peace bonds with the Justice of the Peace‘s Court.1
On original appeal, this Court affirmed defendant‘s conviction and sentence on count three (peace bonds), but reversed his
INEFFECTIVE ASSISTANCE OF COUNSEL
The United States Supreme Court has established a two-part test for review of a convicted defendant‘s claim that his counsel‘s assistance was so defective as to require reversal of a conviction. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel‘s performance was deficient, meaning that counsel made errors so serious that he was not functioning as the `counsel’ guaranteed the defendant by the Sixth Amendment, and that counsel‘s errors prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Sanders, 93-0001, p. 25 (La.App. 1st Cir.11/30/94); 648 So.2d 1272, 1291, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996). In evaluating the performance of counsel, the “inquiry must be whether counsel‘s assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. “The defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
In the present case, defendant raises several allegations of deficient performance by his two trial attorneys which relate solely to the malfeasance conviction arising from litter fine collections. As noted by the supreme court in its per curiam, defendant‘s primary defense at trial with respect to the litter fine charge was the claim that there was a “[l]ack under state and local law of any time period for remittance of the litter fines by justice of the peace courts, together with the confusion interjected into the law by the conflicting 1992 enactments regarding
Our review reveals no error in the trial court‘s conclusion that defendant presented insufficient evidence at the motion hearing to establish his attorneys’ trial performance was deficient. Defendant argues strenuously that his attorneys should have presented evidence at trial as to the fact that he sent a check to the Police Jury in the amount of $4,220.00, dated April 15, 1994, as a remittance for litter fines collected in 1991 and 1992. However, the fact that defendant attempted to make this remittance would appear to be of little probative value on the issue of guilt or innocence, since the remittance was not attempted until well after defendant was
According to Belinda Durr, who worked as defendant‘s secretary for approximately five months at the end of 1992, when the office received cash for litter fines, defendant used the money in a variety of ways, dividing it with the constable “for office expenses or to go to lunch or whatever they wanted to do with it.” Durr testified that when she asked about the fines, and about whether the state received any of the money, defendant told her that “what they don‘t know doesn‘t hurt them.” Maureen Perry, who also worked as a secretary for the defendant, told jurors that whatever cash was received in the office for litter fines or fees for issuing peace bonds would be “disburse[d] at the end of the week.” Perry testified that when she asked the defendant about the litter fines, he replied that “it was his money and he said he could do what he wanted.” The defendant made a similar statement to Mario Ventura, president of the St. Tammany Parish Justice of the Peace Association, in the early spring of 1992, when both men were attending a conference of justices of the peace in Lafayette. Ventura testified that when he asked the defendant whether he was turning over the litter fines to the parish the defendant replied that he was absorbing the money collected “in court costs ... eating it up in expenses.” When Ventura asked how he was doing that, the defendant added, “Well, you‘re a smart guy, figure it out.”
... [T]he defendant‘s statements to Durr, Perry, and Ventura, and especially the low balance in the Justice of the Peace account in September of 1993, below the total amount collected in litter fines and coinciding with the transfer of nearly nine thousand dollars from the account to his professional law account in New Orleans, all reflected the defendant‘s design to use the fine money collected to benefit himself and, coincidentally, his public office and not the governing authority of the parish, and that he had thereby intentionally refused to perform the duty placed upon him by law. As the state established on redirect ... the confusion in state law did not affect collection of the litter fines from January 1, 1991 until the summer of 1992, when either act 361 or 362 went into effect. State law and local ordinance gave defendant the right to expect reimbursement for the expense of collection from the St. Tammany Parish Police Jury, but only after he had remitted all of the fine money collected, and then only by half. The large transfer from defendant‘s Justice of the Peace account to his professional law account in September of 1993, after the effective date of 1993 La. 579, which clarified his duty in this respect, negated any defense suggestions that, at least with respect to the litter fines collected, the defendant maintained his St. Tammany account in the manner of an escrow account, holding the fines collected until the end of his term in office, the 1992 confusion in the law subsided, or until someone asked him for the money.
We also note that, in rejecting defendant‘s claim of ineffective assistance of counsel, the trial court specifically observed that defendant‘s attorneys were aware of the substance of what the witnesses presented by defendant at the motion hearing would have testified to, but did not feel their testimony would have
Both counsel felt they had effectively cross examined the State‘s witnesses and they felt they had an ideal jury. They felt that the tempo of trial was with them and they only needed a strong closing argument to win the case. The defendant agreed with them and all three made the decision to rest without calling witnesses. Both counsel clearly state that defendant supported the decision to rest the case and did not doubt the decision until the verdict came back.
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After review of the evidence and testimony produced at the motion hearing, the Court finds defendant has failed to prove his trial counsels’ performances were deficient or that he was prejudiced by these deficiencies. The defendant has failed to prove either part of the two prong test for ineffective counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court further finds that no evidence was produced on the other grounds argued in the motion.
The decision to call or not to call a particular witness is a matter of trial strategy and not, per se, evidence of ineffective counsel. State v. Folse, 623 So.2d 59, 71 (La.App. 1st Cir.1993). Under our adversary system, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. The fact that a particular strategy is unsuccessful does not establish ineffective assistance of counsel. Folse, 623 So.2d at 71. Defendant has failed to establish that he was prejudiced by a deficient performance by his trial attorneys. Accordingly, the trial court did not err in denying defendant‘s motion for new trial.
EXCESSIVE SENTENCE
On original appeal, defendant argued that both sentences imposed by the trial court were excessive. However, since we reversed defendant‘s conviction on count one (failure to remit litter fines), we did not consider his claim of excessiveness with respect to that sentence. For that conviction, defendant was exposed to a possible sentence of not more than five years imprisonment, with or without hard labor, or a fine of not more than $5000.00, or both. See
A trial court has wide, although not unbridled, discretion in imposing a sentence within statutory limits. State v. Trahan, 93-1116, p. 25 (La.App. 1st Cir.5/20/94); 637 So.2d 694, 708.
On appeal, defendant argues the sentence imposed was excessive because he was a first offender with no criminal record, no victim complained, and he tendered a check (dated April 15, 1994) for over $4,000.00 to St. Tammany Parish as payment for litter fines he collected. He also complains that the trial court failed to take into consideration the favorable testimony of several witnesses at the sentencing hearing, as well as favorable comments in the presentence investigation report.
The record reflects the trial court did in fact consider the presentence investigation report, which recommended that defendant receive a sentence of incarceration rather than a suspended sentence. In sentencing defendant, the trial court stated that a lesser sentence would deprecate the seriousness of defendant‘s crime. In particular, the court emphasized the fact that defendant‘s conduct “betrayed the public trust.” We note that defendant made absolutely no attempt to remit any portion of the litter fines until after the January 1994 audit raised questions as to this omission. Moreover, the record indicates defendant failed to accept responsibility for his actions.
Finally, we note that the trial court ordered that the instant sentence be served concurrently to the sentence imposed on count three (peace bonds). Since these two convictions arose from different acts and/or transactions, the trial court could have made the sentences consecutive, which would have exposed defendant to maximum, consecutive sentences totaling ten years in length. See
However, we note patent error in the requirement of restitution imposed as a special condition for the suspension of the last two years of defendant‘s sentence. In imposing this condition, the trial court stated that defendant was to “make full restitution to all of the affected victims in this case.” The court did not specify to whom the restitution should be paid or the amount of restitution to be paid. When a trial court orders restitution without stating the specific amount of the restitution to be paid, the sentence is defective. See
CONVICTION AND SENTENCE ON COUNT ONE AFFIRMED, REMANDED WITH ORDER.