Opinion
NO. 2017-KA-0239 C/W: NO. 2017-KA-0240
09-06-2017
STATE OF LOUISIANA v. DELVIN WILLIAMS
Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY Donna Andrieu Assistant District Attorney Chief of Appeals Donald G. Cassels, III Assistant District Attorney PARISH OF ORLEANS 619 South White Street New Orleans, LA 70119 COUNSEL FOR APPELLANT, STATE OF LOUISIANA Christopher A. Aberle LOUISIANA APPELLATE PROJECT P.O. Box 8583 Mandeville, LA 70470-8583 COUNSEL FOR DEFENDANT/APPELLEE, DELVIN WILLIAMS
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 475-646, SECTION "C"
Honorable Benedict J. Willard, Judge Judge Terrel J. Broussard, Pro Tempore (Court composed of Judge Terri F. Love, Judge Marion F. Edwards, Pro Tempore, Judge Terrel J. Broussard, Pro Tempore) Leon A. Cannizzaro, Jr.
DISTRICT ATTORNEY
Donna Andrieu
Assistant District Attorney
Chief of Appeals
Donald G. Cassels, III
Assistant District Attorney
PARISH OF ORLEANS
619 South White Street
New Orleans, LA 70119
COUNSEL FOR APPELLANT, STATE OF LOUISIANA Christopher A. Aberle
LOUISIANA APPELLATE PROJECT
P.O. Box 8583
Mandeville, LA 70470-8583
COUNSEL FOR DEFENDANT/APPELLEE, DELVIN WILLIAMS
VACATED AND REMANDED
The State asserts that the trial court abused its discretion in granting two motions to quash in favor of the defendant, Delvin Williams. For the reasons herein we vacate the trial court's ruling and remand this matter in accordance with this decision.
This appeal addresses the trial court's ruling quashing the charges for failure to prosecute within the legal time frame. The facts precipitating the charges are not relevant to this appeal. All relevant facts are addressed in the discussion below.
STATEMENT OF THE CASE
In two consolidated cases, the State appeals the trial court's August 4, 2015 decision granting motions to quash charges against Williams. On February 7, 2008, the State filed a bill of information in case no. 475-646 charging Williams with possessing cocaine, in violation of La. R.S. 40:967(C)(2). He was originally arrested on this charge on August 31, 2007, and released on a $5,000 bond on September 6, 2007. The address Williams provided on the bond he signed was "2415 St. Bernard", New Orleans, Louisiana, without a zip code. Williams was arraigned and pled not guilty to the charge in case no. 475-646 on February 26, 2008. On March 5, 2008 Williams filed a motion for discovery in case no. 475-646.
The appeal of trial case no. 475-646 is this Court's case no. 2017-KA-0239.
Williams was arrested for possession of marijuana on January 9, 2008. On February 26, 2008, the State filed a bill of information in case no. 476-218 charging him with a third offense for possession of marijuana, a violation of then La. R.S. 40:966(E)(3) . Before the bill of information was filed, Williams was released on a $2,000 bond on January 11, 2008. The address he provided was "2415 St. Bernard Ave.", New Orleans, Louisiana 70119. Williams was not arraigned in case no. 476-218 until April 24, 2015, when he pled not guilty.
The appeal of trial case no. 476-218 is this Court's case no. 2017-KA-0240.
La. R.S. 40:966(E) has since been amended. The amendments have no impact on this appeal.
Initially, case no. 475-646 appears to have originally been allotted to Section I. It was subsequently transferred to - or "RECEIVED" in - Section C on April 24, 2008. Case no. 476-218 was "RECEIVED" in Section C on June 30, 2008.
Though the docket master does not specify the allotment when the bill of information was filed on February 7, 2008, it identifies "SECTION I/C" at the top of the page. As discussed infra, the case/s was/were subsequently allotted to Section C.
The docket masters contained in the record reflect an extensive period of no activity in either case. The 476-218 docket shows that Williams failed to appear for a July 14, 2008 status hearing and a July 25, 2008 motions hearing. On July 25, 2008, the docket master notes, "ALIAS CAPIAS WITH NO BOND." The docket master shows a gap of more than six years before an April 23, 2015 entry notes "FILED ARREST ON CAPIAS NOTIFICATION." Williams was arrested on April 14, 2015. The 475-646 docket master also reflects that Williams was not present at July 14 and July 25, 2008 hearings, and was arrested on April 14, 2015.
Of note, the 475-646 docket master also notes that the July 25, 2008 hearing was for motions.
The docket masters indicate that on July 10, 2015, defense counsel appeared in the trial court and filed evidentiary and discovery motions. The trial court set these motions for hearing for August 4, 2015.
Williams filed motions to quash charges in both cases date-stamped July 30, 2015. On July 31, 2015, the docket master noted the filing of the motions to quash. In the motions to quash, Williams stated that he was arrested on other charges in Jefferson Parish in January of 2009, and remanded to Jefferson Parish Prison on March 3, 2009. On April 2, 2009, Williams received a four-year sentence for the Jefferson Parish charges.
The motions assert that he was arrested "[i]n January 2013." Presumably, the "2013" was a typographical error.
At the August 4, 2015 hearing, the State asserted that it received the motions to quash on Friday, July 31, 2015 and requested an additional "day or two" to file oppositions. Nothing in the docket master reflects that the motions had been set for hearing. In denying the request and granting the motions, the trial court reasoned:
What will tomorrow do for your argument? What support will tomorrow have for your argument that today does not? Because I'm looking at the law and it's pretty clear and we recently had this same issue. And I'm not going to get myself into any trouble, but I think the panel was two to one in favor of a quashal because the time limits were such that you've got to issue prosecution within a certain time limit. You've got to get them to trial. And if the defendant was available by serving - even if he was serving time in a different jurisdiction the law says that there's still a two year limit to get him to trial.
The trial court continued in reference to Williams' incarceration in Jefferson parish: "I'm not knocking the fact that you made efforts to serve. But if the person that you were trying to serve was somewhere else, I don't know who gets the blame there." In response to the State's assertion that it may not have the duty to investigate whether a defendant is in custody under State v. Romar, 2007-2140 (La. 7/1/08), 985 So.2d 722, the trial court stated, "I'm going to let you take that up. And I'm tired of being the guinea pig there. But I believe the law is clear."
It is the denial of the motion to quash that the State now appeals.
DISCUSSION
Issue for Review
The State raises one issue on appeal, that the trial court abused its discretion in granting the defense's motions to quash without allowing the State to meaningfully contest the allegations raised therein. The State further asserts that it could have effectively opposed the motions by arguing: 1) case no. 475-646 has been suspended since Williams filed a motion for discovery on March 5, 2008; and 2) both cases were interrupted under La. C.Cr.P. art. 579(A)(2) because it was impossible to perfect notice on Williams at the address listed on his bonds.
Standard of review
Trial court rulings of motions to quash are reviewed for abuse of discretion. State v. Brown, 2015-1319, p. 7 (La. App. 4 Cir. 4/20/16), 193 So.3d 267, 271.
Prescriptive period to prosecute and burden of proof
Generally, the State has two years from institution of non-capital felony charges to prosecute a defendant. La. C.Cr.P. art. 578(A)(2). In this case, the bill of information in case no. 475-646 was filed on February 7, 2008; and the bill of information in case no. 476-218 was filed on February 26, 2008. Thus, the State had until February 7, 2010 to prosecute case no. 575-646 and until February 26, 2010 to prosecute case no. 476-218. The motions to quash were filed over five years after, on July 30, 2015. Where the two year prescriptive period has lapsed, as here, the State bears the burden of proving either an interruption or a suspension of the prescriptive period. State v. Peters, 2010-0939, p. 5 (La. App. 4 Cir. 11/17/10, 52 So.3d 233, 236. See also La. C.Cr.P. art. 579 (interruption) and La. C.Cr.P. art 580 (suspension).
State's opportunity to file oppositions
At the August 4, 2015 hearing the State requested "an additional day or two" to file an opposition to Williams' motions to quash. The motions are stamped, July 30, 2015, a Thursday. At the hearing, defense counsel told the trial court that she filed the motions on "Friday", which was July 31, 2015. Likewise, the assistant district attorney told the trial court that the motions were filed on Friday, August 4, 2015 which was the following Tuesday.
The State cites a Fifth Circuit case, State v. Watts, 99-57 (La. App. 5 Cir. 5/19/99), 738 So.2d 628, as authority for its assertion that it should have been afforded more time for to respond. In Watts, the Fifth Circuit reversed the trial court's ruling which granted a motion to quash immediately after it was orally presented at a hearing. In addressing the State's assertion that it should have been allowed time to respond, the Fifth Circuit stated:
On appeal, the state points out that when a defendant has brought an apparently meritorious motion to quash based on prescription, the state bears a heavy burden to show that prescription was interrupted or suspended. State v. Joseph, 93-2734 (La.6/3/94), 637 So.2d 1032. The state argues that because of this heavy burden, the state should be given time to respond and satisfy its burden. We agree.99, 57, p. 3, 738 So.2d at 629.
In State v. Bordenave, 2013-1265, p. 2 (La. App. 4 Cir. 3/19/14), not reported, 2014 WL 1117973, this Court noted that the State's reliance on Watts in an appeal before it "ha[d] merit." In Bordenave, this Court vacated the trial court's judgment granting a motion to quash on the day that it was filed. In doing so, this Court reasoned:
In the instant case, an examination of the hearing transcript reveals that the state's first time to review the motion to quash was most likely not until the hearing. The state requested a day's recess to better prepare to defend against the motion, but the court denied that request and granted the motion. Although the motion to quash is not in the record, the docket master indicates that the motion was filed on July 3, 2013 in the Clerk of Court's Office. However, there is no indication that the state was served with a copy of the motion. A mere filing of a motion in the Clerk of Court's office does not certify that the opposing party receives it. Moreover, the docket master indicates that on June 14, 2013, the court set a date for hearing on motions for July 16, 2013. That hearing date was set before the motion to quash was filed at the Clerk of Court's office, which is another indication that the state was likely not aware that the motion had been filed, much less that it would be argued that day. Since there is no indication that the state received the motion to quash prior to the July 16, 2013 hearing, it is doubtful that the state was able to prepare to meet its high burden of proof regarding the timeliness of the prosecution.Id.
In State v. Major, 2013-1139 (La. App. 4 Cir. 4/9/14), 140 So.3d 174, this Court addressed the same law in a slightly different posture. There, the State filed a response and the motion to quash was heard, but the trial court denied the State's request for an evidentiary hearing to establish when a theft victim knew or should have known of the theft, which impacted the period within which the State had to try the defendant under La. C.Cr.P. art. 572. In reversing the trial court's ruling which granted the motion to quash without the evidentiary hearing, this Court noted, "[a]lthough the court in Watts agreed with the state that it should be given time to respond to satisfy its burden, we note the court did not note that the state should be given a 'full' opportunity." Major, 2013-1139, p. 7, 140 So.3d at 178. Nevertheless, this Court concluded that the trial court abused its discretion in not allowing an adequate evidentiary hearing for the State to present its evidence of when a theft victim knew or should have known that the theft occurred. Id., 2013-1139, p. 13, 140 So.3d at 182. The case was remanded for the evidentiary hearing. Id.
In State v. Bryant, 2014-0653 (La. App. 4 Cir. 12/10/14), ___So.3d___, unpub., 2014 WL 6989388, this Court did not make a determination of the State's complaint that it had not been afforded a hearing, having already determined that the motion to quash had been improperly granted on substantive grounds. However, this Court recognized, "[O]ur jurisprudence has established that the State should have been afforded an opportunity to review and prepare an argument against the motion to quash." 2014-0653 at p. 2. Citing Watts and Bordenave, supra.
In State v. Brown, 2015-1140 (La. App. 4 Cir. 6/29/16), ___So.3d___, unpub., 2016 WL 3570794, while the trial court granted a motion to quash before the State could file an opposition, the trial judge said he was willing to "revisit" the motion after the State filed its opposition a few days later. Id., 2015-1140 at p. 2. On review, this Court rejected the State's complaint that it had not been given time to oppose the motion to quash, reasoning, "the trial court afforded the State the opportunity to oppose the motion. Id., 2015-1140, at p. 4, distinguishing Bryant, Bordenave and Major.
In this case, the motion to quash was granted some three business days after a date-stamp shows it was filed in the Orleans Parish Criminal District Court on a Thursday, July 30, 2015. Despite the stamp, the State and defense counsel asserted at the August 4, 2015 hearing that the motion was "filed" the following day. Thus, it appears undisputed that the State was not served with the motion until July 31, 2015, which deprived the State of another business day to respond. Moreover, the record indicates that as of August 4, 2015 the motion to quash had not yet been assigned a hearing date, and the State was not prepared to address it on that date. The trial court abused its discretion by ruling on the motion to quash without affording the State a reasonable opportunity to prepare and file an opposition.
August 1 and 2, 2015 were Saturday and Sunday.
State's substantive ability to show suspension and interruption
Having found that the trial court abused its discretion in not allowing the State a reasonable opportunity to oppose the motions to quash, we now review whether the State might show prejudice from the denial of a hearing by addressing the possibility of its ability to show a suspension or interruption of the time allowed to try the charges.
Substantively, the State asserts that 1) case no. 475-646 has been suspended since a motion for discovery was filed on March 5, 2008; and 2) both cases were interrupted under La. C.Cr.P. art. 579(A)(2) because it was impossible to perfect notice on Williams at the address listed on his bonds. Since the latter assertion concerns both appeals we address those first.
Interruption
The State asserts that prosecution of both cases on appeal was interrupted under La. C.Cr.P. art. 579(A)(2) because it was unable to serve Williams with notice of proceedings in these cases, as he was not at the address listed on his bonds. In support, the State asserts that it could not notify Williams of proceedings because Williams did not update his address pursuant to La. C.Cr.P. Art. 322(A) . The State analogizes this case to State v. Peters, 2010-0939 (La. App. 4 Cir. 11/17/10), 52 So.3d 233 wherein the state appealed the trial court's granting of the defendant's motion to quash for failure to timely prosecute, and this Court reversed finding that because the defendant failed to update his address after Hurricane Katrina, prescription for prosecution was interrupted.
At the time of Williams' arrest in 2008, La. C.Cr.P. art. 322(A) provided, in pertinent part:
The defendant when signing a bail bond shall write under his signature the address at which he resides. The address shall be conclusively presumed to continue for all proceedings on the bond, until he files in the proceeding in which the bond was given a written declaration changing the address.
La. C.Cr.P. art. 579(A) provides, in pertinent part:
The period of limitation established by Article 578 shall be interrupted if:
...
(2) The defendant cannot be tried because of... his presence for trial cannot be obtained by legal process, or for any cause beyond the control of the state;
...
Generally, Louisiana jurisprudence "requires the State to exercise due diligence in discovering the whereabouts of the defendant as well as taking appropriate steps to secure his presence for trial once it has found him" when the defendant is beyond the control of the State under La. C.Cr.P. art. 579(A)(2). State v. Romar, 2007-2140, p. 304 (La. 7/1/08), 985 So.2d 722, 725, quoting State v. Bobo, 03-2362, p. 5 (La. 4/30/04), 872 So.2d 1052.
In State v. Sorden, 2009-1416, p. 14 (La. App. 4 Cir. 8/4/10), 45 So.3d 181, 189, this Court found that the State failed to show interruption under La. C.Cr.P. art. 579(A)(2), reasoning:
the prosecution has not demonstrated an exercise of due diligence in discovering the whereabouts of Ms. Sorden sufficient to satisfy its "heavy burden." At the hearing on the motion to quash, the state presented no witnesses or evidence of efforts to locate Ms. Sorden. Aside from mailing a subpoena to her destroyed home, the prosecution has failed to present evidence that it made any effort to ascertain her whereabouts.Importantly, Sorden was not under any bond obligation, and thus, had no obligation to inform the court of changes in her address. Id., 2009-1416, pp. 9-12, 45 So.3d at 187-188.
In Peters, this Court distinguished Sorden and found that proceedings against Peters were interrupted under La. C.Cr.P. art. 579(A)(2), reasoning:
We determine whether in the matter sub judice, the sufficiency of notice upon Peters, the requirement that Peters should have provided a change of address of record, and whether the state satisfied its burden of notice. While it is true that Peters was arrested and released on bond prior to Hurricane Katrina, and would therefore have had no way of knowing that a bill of information had actually been filed against him, it is also true that the destruction and dislocation left in the wake of the hurricane made reliable service of process difficult if not impossible to accomplish at the address of Peters on record. While there was no actual notice to Peters of the bill of information filed, he was aware of the pending charges and failed to provide his change of address to the court as mandated by La.C.Cr.P. art. 322. Because of his failure to provide this information to the Court, the state was unable to serve him at the only address he had provided. Sorden is distinguishable from the matter herein. In Sorden , the defendant had been relieved of her bond obligation. 45 So.3d 181, 183. Peters remained under his bond obligation, and had he complied with art. 322, the state would have been able to provide actual notice to him in a timely manner.Peters, 2010-0939, p. 11, 52 So.3d at 239-240. Emphasis added.
In this case Williams was released on bond in both of the cases on appeal. Both times, he provided an address in New Orleans at 2415 St. Bernard Avenue. Nothing in the record indicates a notification of change of address, as required by old La. C.Cr.P. art. 322. At the August 4, 2015 hearing, the assistant district attorney asserted that service had been attempted at the address listed in the bonds. In this respect, this case is somewhat analogous to Peters, though whether the State can demonstrate it exercised the requisite due diligence remains an open question. Under these circumstances and given the opportunity to respond to the motions to quash - it is possible that the State may have been able to show that the prescriptive period to try Williams was interrupted in both cases.
Suspension
The State asserts that prescription in case no. 275-646 was suspended by the filing of a discovery motion on March 5, 2008, which had not yet been ruled upon.
La. C.Cr. P art. 580(A) addresses suspension, providing:
When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.Emphasis added.
For purposes of La. C.Cr.P. art. 580, a preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial. State v. Brooks, 2002-0792, p. 6 (La. 2/14/03) 838 So.2d 778, 782. These pleadings include properly filed motions to quash, motions to suppress, motions for a continuance, applications for discovery, bills of particulars, and joint motions for a continuance. Id.
Nothing in the record indicates a ruling was rendered following the March 5, 2008 filing. Williams has not addressed this issue in his brief. Accordingly, it appears that - given the opportunity to respond to the motions to quash - the State may have been able to show the prescriptive period to try Williams in case no. 275-646 was suspended as of March 3, 2008, and remains suspended. But cf. State v. Wagster, 361 So.2d 849, 856 (La. 1978) ("[I]t is ordinarily incumbent upon the proponent of a motion to move for a hearing date on that motion. Otherwise it may be considered that the motion has been abandoned.")
CONCLUSION
Based on the analysis above, the trial court abused its discretion in granting the motions to quash without affording the State a reasonable opportunity to contest the allegations raised therein. Moreover, the record indicates that the State may be able to carry its burden of proving interruption in both cases and suspension of case no. 275-646; given the opportunity to prepare and present an opposition to Williams' motions to quash. The August 4, 2016 judgment granting the motions to quash is vacated, and this case is remanded to afford the State a reasonable opportunity to contest the allegations set forth in Williams' motions to quash.
VACATED AND REMANDED
Emphasis added
In 2010, the article was amended, and the presumption of continued address was moved to paragraph B. Effective this year, the presumption has been moved to La. C.Cr.P. art. 329(D). None of these changes appear to be substantive.