Opinion
NO. 2012 KA 1064
02-22-2013
STATE OF LOUISIANA v. JOHNNY T. ELLIS
Walter P. Reed District Attorney Covington, Louisiana and Kathryn W. Landry Special Appeals Counsel Baton Rouge, Louisiana Attorneys for Appellee, State of Louisiana Lieu T. Vo Clark Louisiana Appellate Project Mandeville, Louisiana Attorney for Appellant, Johnny T. Ellis Johnny T. Ellis Richwood, Louisiana Pro Se
DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Trial Court No. 507,815
The Honorable Reginald T. Badeaux, III, Judge Presiding
Walter P. Reed
District Attorney
Covington, Louisiana
and
Kathryn W. Landry
Special Appeals Counsel
Baton Rouge, Louisiana
Attorneys for Appellee,
State of Louisiana
Lieu T. Vo Clark
Louisiana Appellate Project
Mandeville, Louisiana
Attorney for Appellant,
Johnny T. Ellis
Johnny T. Ellis
Richwood, Louisiana
Pro Se
BEFORE: PARRO, WELCH, AND KLINE, JJ.
Hon. William F. Kline, Jr.. retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
KLINE , J.
The defendant, Johnny T. Ellis, was charged by bill of information with theft of a firearm, a violation of La. R.S. 14:67.15. The defendant pled not guilty. The matter proceeded to a trial by jury, and the defendant was found guilty of the responsive offense of attempted theft of a firearm. Subsequently, the defendant admitted to the allegations of a habitual offender bill of information filed by the State. Thereafter, the defendant filed a motion for post verdict judgment of acquittal and a motion for new trial. The trial court adjudicated the defendant a fourth-felony habitual offender and imposed a sentence of twenty years imprisonment at hard labor on December 12, 2011. The trial court later denied the defendant's post-trial motions on February 6, 2012. The defendant now appeals, assigning error in a counseled brief to the trial court's failure to rule on his post-trial motions before the habitual offender adjudication and sentencing. In a pro se brief, the defendant assigns error to the habitual offender adjudication. For the following reasons, we affirm the conviction and habitual offender adjudication, vacate the sentence, and remand for resentencing.
The habitual offender bill of information alleged three 22nd Judicial District Court predicate felony convictions, consisting of one bank fraud guilty plea (a violation of La. R.S. 14:71.1) and two possession of cocaine guilty pleas (violations of La. R.S. 40:967(C)).
STATEMENT OF FACTS
On or about December 10, 2010, the defendant had a dispute with his neighbor and employment supervisor, Jeffery Harroun, over a paycheck that the defendant claimed was owed to him. As Harroun stood in his driveway, at approximately 8:30 p.m., the defendant began hollering at him from his yard, complaining about his paycheck. Harroun told the defendant that he was not owed a paycheck since he did not work during the week in dispute. Harroun became concerned, reentered his home, and placed his nine millimeter pistol in his back pocket before going back outside. After Harroun stepped outside, the defendant entered Harroun's front gate and met him at his carport. Harroun told the defendant to leave. As he walked with the defendant back toward the gate, Harroun began to question the defendant about some items that were missing from his laundry room. As the altercation elevated, Harroun brandished his weapon, repeatedly telling the defendant to leave his property. The defendant grabbed Harroun's hand and forcefully disarmed him. After gaining possession of the pistol, the defendant fled from the scene. After his arrest, the defendant gave a recorded interview wherein he admitted to taking the pistol, contending that he was being threatened with it, but denied confronting Harroun.
Harroun testified that he consumed beer before the confrontation but had a clear memory of the facts. His recorded statement given three days after the incident was admitted during the trial.
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PRO SE ASSIGNMENTS OF ERROR
In the first assignment of error in his pro se brief, the defendant claims that the State failed to meet its burden of proving the predicate felony convictions alleged in the habitual offender bill of information. The defendant further contends that he was a first offender prior to the instant offense, making it "categorically impossible" for the State to carry its burden of proof. In the second assignment of error in his pro se brief, the defendant contends that the trial court erred in accepting his admission to the allegations in the habitual offender bill of information. The defendant contends that he advised his counsel on several occasions that he was a first offender prior to the instant offense, but his counsel relentlessly disputed his claim and intimidated and threatened him, which compelled him to admit the habitual offender bill allegations under duress.
After a habitual offender bill of information is filed, the trial court in which the instant conviction was had shall cause the defendant to be brought before it, shall inform him of the allegations contained in the information, shall inform the defendant of his right to be tried as to the truth thereof according to law, and shall require the defendant to say whether the allegations are true. See La. R.S. 15:529.1(D)(1)(a). Furthermore, the language of the Habitual Offender Law must be strictly construed. In this regard, an implicit and integral aspect of the requirements of La. R.S. 15:529.1 is the court's duty to inform the defendant of his right to remain silent. State v. Gonsoulin, 03-2473 (La. App. 1 Cir. 6/25/04), 886 So. 2d 499, 501 (en banc), writ denied, 04-1917 (La. 12/10/04), 888 So. 2d 835; see also La. R.S. 15:529.1(D)(1)(a) and (3).
Herein, the defendant, represented by counsel, stipulated to his status as a fourth-felony habitual offender after being fully informed of the allegations of the habitual offender bill of information and properly advised of his right to a habitual offender hearing, the State's burden of proof, and his right to admit or deny the allegations, or to remain silent. Prior to the adjudication and sentencing, the defendant again expressed his willingness to stipulate to his fourth-felony habitual offender status. The defendant made no mention of threats or duress. Based on the record before us, we find that the trial court properly accepted the defendant's admission as freely, voluntarily, and intelligently given. Thus, the State was not required to prove the allegations of the habitual offender bill of information. The pro se assignments of error lack merit.
COUNSELED ASSIGNMENT OF ERROR
In the counseled assignment of error, the defendant notes that his motion for new trial and motion for post verdict judgment of acquittal were pending at the time of the sentencing. The defendant further notes that the trial court did not address the motions until approximately two months after the sentencing. The defendant contends that the trial court did not consider the merits of the motions at that time but simply denied them as being moot. The defendant contends that the case should be remanded for the trial court to consider the merits of his motions, as well as for resentencing. As noted in its brief, the State does not object to a remand for resentencing.
Louisiana Code of Criminal Procedure article 821(A) mandates the making and disposing of a motion for a post verdict judgment of acquittal before sentence. Louisiana Code of Criminal Procedure article 853 mandates the filing and disposing of a motion for new trial before sentence. Neither the counseled brief nor the pro se brief allege any specific prejudice arising out of the apparent failure of the trial court to rule on the motion for post verdict judgment of acquittal and the motion for new trial. Nevertheless, it is preferred, and the codal provisions require, that the trial court rule on the merits of the application for a new trial or post verdict judgment of acquittal before imposing sentence on the defendant. See State v. Randolph, 409 So. 2d 554, 555 (La. 1981) (per curiam, on rehearing); State v. Magee, 496 So. 2d 562, 563 (La. App. 1 Cir. 1986).
Herein, the verdict was recorded on October 20, 2011, and the defendant admitted the allegations of the habitual offender bill of information four days later. On November 3, 2011, the defendant filed his motion for post verdict judgment of acquittal and motion for new trial. While those motions were pending, the habitual offender adjudication and sentencing took place on December 12, 2011. On February 6, 2012, the trial court denied the motions. While we disagree with the defendant's claim that the motions were denied solely on the basis of mootness, the defendant is correct in that the sentence was imposed prior to the ruling on the motions.
Furthermore, La. Code Crim. P. art. 873 mandates that, if a motion for new trial is filed, a sentence shall not be imposed until at least twenty-four hours after the motion is overruled. See also State v. Augustine, 555 So. 2d 1331, 1333 (La. 1990); State v. Coates, 00-1013 (La. App. 1 Cir. 12/22/00), 774 So. 2d 1223, 1226; State v. Wilson, 526 So. 2d 348, 350 (La. App. 4 Cir. 1988), writ denied, 541 So. 2d 851 (La. 1989) (which cases have applied the twenty-four hour delay period following the denial of a motion for post verdict judgment of acquittal under Article 873).
In State v. Augustine, 555 So.2d at 1333-35, the Louisiana Supreme Court held that a trial court's failure to observe the twenty-four hour delay between the denial of the defendant's motion for new trial and sentencing is not harmless error if the defendant challenges the sentence on appeal. The court also implied that the error would not be harmless if the issue is raised by the defendant on appeal. However, in the event the issue is not assigned as error or the sentence is not challenged, the error is not reversible unless the defendant can show he was prejudiced. In the instant case, although the defendant is not challenging his sentence, he is raising this issue as error on appeal. Thus, according to the supreme court, the error is not harmless; and we must vacate the sentence imposed on the defendant. Accordingly, we remand for resentencing. State v. Claxton, 603 So. 2d 247, 250 (La. App. 1 Cir. 1992).
CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.