State v. Jarratt

299 So.3d 1202

STATE of Louisiana, Appellee

v.Phillip JARRATT, Appellant

No. 53,525-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered June 24, 2020

LOUISIANA APPELLATE PROJECT By: Sherry Watters, New Orleans, Counsel for Appellant

JOHN F.K. BELTON, JR., District Attorney, Ruston, CLIFFORD ROYCE STRIDER, III, Baton Rouge, E. MICHAEL MAHAFFEY, Assistant District Attorneys, Counsel for Appellee

Before MOORE, STEPHENS, and THOMPSON, JJ.

MOORE, J.

The defendant, Phillip Jarratt, was convicted by a jury of theft of money of more than $25,000. The court sentenced Jarratt to eight years at hard labor with all but the first four years suspended and three years of supervised probation conditioned on payment of restitution, fines, costs and fees, and other conditions of probation. Defense counsel made an oral request to reconsider sentence immediately following sentencing, but the court declined to take up the motion and directed counsel, if he chose, to file a written motion after the hearing. No follow-up motion to reconsider sentence was filed. This appeal followed. For the following reasons, we affirm defendant's conviction; we vacate the sentence and remand for resentencing.

FACTS

The defendant, Phillip Jarratt, was hired in mid-2017 as a finance and insurance manager for Premier Autoplex ("Premier"), a used car sales dealership, in Farmerville, Louisiana. Premier was selling approximately 45-60 cars per month at that time. Jarratt was responsible for processing the paperwork of each car sale, including clearing the financing with the bank that "floor-planned" the vehicle and receiving down payments from purchasers. Customers made their down payments by cash, check or credit card.

Beginning in late November 2017, Jarratt began to keep some of the cash down payments, and he withheld processing the paperwork of the sales to avoid detection. Toward the end of March 2018, a Premier office manager notified the company owners that there were vehicles listed on the books that were no longer on the car lot. An inventory was performed which indicated about 15 vehicles were missing. An investigation revealed that Jarratt had been "scooting aside" vehicles, meaning that while the cars were listed in the inventory, they were, in fact, no longer at the dealership.

Once he learned what was happening, Premier owner/manager Gordon Grant III approached Jarratt to discuss the matter. Grant recalled that Jarratt asked him if he could postpone their meeting so he could go and buy a pack of cigarettes or go to lunch. Grant consented. Jarratt left the dealership and never returned. Premier terminated Jarratt and notified the Union Parish Sheriff's Office.

Eventually Jarratt was located on April 16, 2018, at the Rayville Recovery Center in Richland Parish. According to Jarratt's ex-wife, he checked himself in the facility for an opioid addiction. When asked, post-Miranda , about the theft, Jarratt confessed. He was arrested and taken to the Richland Parish Sheriff's Office where he was again given Miranda warnings. Jarratt then made a recorded statement to officers.

In the recorded and transcribed statement, Jarratt admitted that he had taken the cash down payments of customers, but no checks. He stated that it was because of his opioid addiction – an addiction he claimed to have struggled with for 20 years. He said he was clean and sober at the time he became employed with Premier. Jarratt told officers that he stole $20,000 to $26,000 and stated that he wanted to make restitution, and there were individuals to help in that regard.

Premier filed a claim with its insurer, AmTrust North America ("AmTrust"), submitting a proof of loss statement on April 18, 2018, totaling $36,520. Premier's policy required a $1,000 deductible, and AmTrust covered the remaining $35,520 loss of down payments.

The two-day trial began on July 29, 2019. The first day was devoted to Jarratt's motion to suppress wherein he contended that his confession was invalid because he was under the influence of narcotics. The record reveals that Jarratt was consuming 15 to 30 milligrams of Oxycontin per day, which is considered a very high dosage. After hearing the evidence and argument, the trial court denied the motion to suppress.

The state presented testimony from the investigating officers and Gordon Grant and three of the customers who made cash down payments to Premier through Jarratt for the purchase of a vehicle. Jarratt's confession was admitted into evidence and played for the jury wherein he admitted to taking up to $26,000.

Gordon Grant testified that the actual loss according to the documentary evidence was $36,520, which was the total of the cash down payments which Jarratt removed from the receipt book. AmTrust paid Premier on its claim and, on November 5, 2018, submitted a request for restitution to the Union Parish District Attorney's Office stating it paid out $36,520 to Premier. However, Grant identified a letter to Premier from AmTrust accompanied by a settlement check in the amount of $35,520 representing the total loss of $36,520 minus a $1,000 deductible. Grant testified that Premier suffered a loss of business and reputation. Subsequently, they sold the business for a sale price that Grant estimated was over $1 million below the dealership's value.

The defense did not present testimony or evidence. The jury found Jarratt guilty as charged.

The sentencing was held on September 9, 2019. The court stated that it had reviewed the presentence investigation ("PSI") and letters submitted on behalf of the defendant. It noted that Jarratt left the property when he realized the theft was discovered, and he never returned, never offered to "help straighten this mess he created," and never apologized or offered to pay his employer back for the money he stole. The only payment Jarratt made was apparently one $500 payment the week prior to sentencing.

Considering the sentencing factors of La. C. Cr. P. art. 894.1, the court found that Jarratt presented an undue risk that if not incarcerated, he would commit another crime, in light of his decision to steal on at least 19 occasions (19 car sales). However, the court expressly stated that it was granting leniency in light of the statements submitted on Jarratt's behalf, but also pointed out that Jarratt's demeanor indicated no remorse and, at times during the proceeding, he seemed belligerent. The trial judge was of the opinion that Jarratt's fleeing and admitting himself to rehab was a disingenuous attempt to manipulate the outcome of the criminal proceeding. Jarratt's failure to make any payments in restitution until the week prior to sentencing further showed his lack of remorse and insincerity. A lesser sentence, he stated, would deprecate the seriousness of the offense. The series of thefts manifested Jarratt's deliberate disregard for each of the victims who thought they had purchased cars. The trial judge also found that Jarratt submitted a letter to the court only when he realized that jail was a possibility. The trial judge noted that Jarratt, age 53, did not have a serious criminal history, and he had undertaken a minimal amount of drug rehabilitation. The trial judge then imposed sentence, as follows:

Eight years’ imprisonment at hard labor, with all but the first four years suspended, followed by three years’ supervised probation effective upon his release from incarceration;

As a condition of probation, restitution paid to AmTrust (Premier's insurer) in the amount of $36,520 and to Premier in the amount of $10,000; and,

A recommendation for intensive drug rehabilitation program while incarcerated.

The court said further that it would sign a written sentencing form that would include as a condition of probation that Jarratt not commit an offense involving controlled dangerous substances because he considered the instant offense to be "drug related."

The printed form sentencing document included the sentence above plus a fine in the amount of $1,000 and "all costs of Court" in default of which Jarratt would serve 180 days in jail. Additionally, the sentencing form imposed 18 conditions of probation that include several "fees," all of which are briefly listed as follows:

(1) Refrain from violating any laws;

(2) Report to his probation officer; (3) Permit probation officer visits to your home, employment or elsewhere;

(4) Meet all family obligations and financial obligations;

(5) Submit to medical or psychiatric exams deemed appropriate by probation officer;

(6) Be devoted to employment or occupation approved by probation officer;

(7) Submit to searches of your person, dwelling or automobile and property by probation officer;

(8) Refrain from owning any firearms, controlled dangerous substances, and alcoholic beverages;

(9) Refrain from frequenting disreputable places and consorting with disreputable people;

(10) Remain within the jurisdiction of the court and obtain permission from probation officer to leave the area;

(11) Submit to random urinalysis as directed by the probation officer;

(12) Waive all extradition proceedings to other jurisdictions;

(13) Observe a 10 p.m. curfew Sunday through Thursdays and midnight on Fridays and Saturdays;

(14) Refrain from contacting any victim in this matter and make full and complete restitution to all victims and aggrieved parties of this crime in an amount and on a schedule to be determined by the Court and probation officer;

(15) Pay the following:

1. $150 to the Third JDC Clerk's Fund;

2. $15 to Crime Victims Reparation Fund;

3. $25 to DARE;

4. $2 to Crime Stoppers;

5. $50 to La. Comm. On Law Enforcement;

6. $15 fees for filing probation documents to Union Parish Clerk of Court;

7. $71 per month for probation management ($71 × 36 = $2,556);

8. $11 to the Sex Offender Registry fund;

9. After all restitution, fine, fees and costs have been paid, $300 cost of defense to IDB, $300 cost of prosecution to DA's office, and $300 to Union Parish Sheriff's Office. Total of $900;

10. Pay an

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