Opinion
2014 KA 1357
03-06-2015
STATE OF LOUISIANA v. MICHAEL L. MILLER
Walter P. Reed District Attorney Covington, Louisiana Kathryn Landry Special Appeal Counsel Baton Rouge, Louisiana Counsel for Appellee State of Louisiana Katherine M. Franks Abita Springs, Louisiana Counsel for Defendant-Appellant Michael L. Miller
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT NUMBER 11-CR8-115085, DIVISION G, PARISH OF WASHINGTON STATE OF LOUISIANA HONORABLE SCOTT GARDNER, JUDGE Walter P. Reed
District Attorney
Covington, Louisiana
Kathryn Landry
Special Appeal Counsel
Baton Rouge, Louisiana
Counsel for Appellee
State of Louisiana
Katherine M. Franks
Abita Springs, Louisiana
Counsel for Defendant-Appellant
Michael L. Miller
BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ. Disposition: CONVICTION AND SENTENCE ON COUNT I CONDITIONALLY AFFIRMED; REMANDED FOR REOPENED HEARING, WITH INSTRUCTIONS. CHUTZ, J.
Defendant, Michael L. Miller, was charged by bill of information with one count of attempted second degree murder of Robert Peters, a violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count I); and one count of a convicted felon possessing a firearm or carrying a concealed weapon, a violation of La. R.S. 14:95.1 (count III). At arraignment, the defendant entered a plea of not guilty on both counts. He subsequently filed a motion to quash the indictment based on untimely prosecution pursuant to La. C.Cr.P. art. 578. The trial court denied the motion. After the defendant's motion was denied, he withdrew his previously entered not guilty plea, and pursuant to a plea agreement, entered a Crosby guilty plea on count I to the amended charge of aggravated criminal damage to property, a violation of La. R.S. 14:55, reserving his right to challenge the trial court's denial of the motion to quash. After a Boykin examination, the trial court accepted the defendant's guilty plea. Count III was nol-prossed. The defendant was sentenced to imprisonment at hard labor for four years, to run concurrent with any other sentences he may be serving, and with credit for time served. He now appeals, assigning error to the trial court's denial of his motion to quash. For the following reasons, we conditionally affirm the conviction and sentence on count I and remand for a reopened hearing in accordance with instructions.
While the bill of information reflects a charge of attempted second degree murder, the minutes indicate the defendant was charged with attempted first degree murder. However, the charge on count I was later amended to aggravated criminal damage to property, to which the defendant pled guilty. Further, subject to the defendant's Crosby plea, his guilty plea waived all non-jurisdictional defects in the pre-plea proceedings. See State v. Gordon, 2004-0633 (La. App. 1st Cir. 10/29/04), 896 So.2d 1053, 1061, writ denied, 2004-3144 (La. 4/1/05), 897 So.2d 600.
Derrick Anthony Jefferson was also charged by the same bill of information with attempted second degree murder of Robert Peters on count I, and also one count of a convicted felon possessing a firearm or carrying a concealed weapon, a violation of La. R.S. 14:95.1 (count II).
State v. Crosby, 338 So.2d 584 (La. 1976).
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
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STATEMENT OF FACTS
Due to the Crosby plea, there was no trial, and therefore, no testimony concerning the facts. However, during the plea colloquy, defense counsel stipulated that the defendant was aware of the basis for the amended charge, which, based on the amended bill of information, occurred between August 24, 2011 and August 25, 2011. The State filed a bill of information on September 29, 2011, charging Michael L. Miller with one count of attempted second degree murder of Robert Peters, and one count of a convicted felon possessing a firearm or carrying a concealed weapon. On October 10, 2011, the defendant was arraigned, and entered a not guilty plea to each charge. After three continuances by the defendant, and a subsequent attachment and bond forfeiture, the defendant, along with defense counsel, appeared for trial on September 10, 2012. On the defense's motion, the matter was continued, and the defendant was given notice of a new trial date of November 12, 2012. On November 12, 2012, neither the defendant nor defense counsel appeared for trial. After additional continuances were granted, another bond forfeiture and attachment were ordered, and the defendant did not return to the trial court until February 3, 2014, for a hearing on his motion to quash. The trial court denied the motion, and the defendant subsequently entered his Crosby guilty plea to the amended charge on count I. In its oral reasons for denying the defendant's motion to quash, the trial court stated:
All right. This Court makes the finding that the cause of this issue is the defendant's alias. Thus, I will not allow him the benefit from having two names in which he has kept and maintained are his lawful names. And thus, I will deny the motion to quash, and I will note your objection.
DENIAL OF MOTION TO QUASH/RIGHT TO SPEEDY TRIAL
In his sole assignment of error, the defendant contends that the trial court erred in denying the motion to quash the indictment. Specifically, the defendant argues that the State failed to demonstrate "that it used 'due diligence' to secure Mr. Miller's presence for trial within the time limits set by [La.] C.Cr.P. 578 where it was apparent from the record that the District Attorney's Office was aware that Mr. Miller was incarcerated and was known by two different names." Exhibits introduced at the motion to quash hearing demonstrated that on earlier charges, the defendant also used the name Michael Williams, but was prosecuted in this case as Michael L. Miller. The defendant contends that "the District Attorney's Office ... was aware of both names and chose to prosecute him in this case under the name of Michael Miller after having him incarcerated in two other cases under Michael Williams AKA Michael Miller and then failed to have him brought to court." The defendant avers the motion to quash should have been granted.
A motion to quash is the proper vehicle to assert that the time limitations for the commencement of trial has expired. La. C.Cr.P. art. 532(7). Upon expiration of the time limitations provided in Article 578(A) for commencement of trial, the court shall, on motion of the defendant, dismiss the indictment, and there shall be no further prosecution against the defendant for that criminal conduct. The right of dismissal is waived unless the motion to quash is made prior to trial. See La. C.Cr.P. art. 581. When a trial court denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of discretion. See State v. Passow, 2013-0341 (La. App. 1st Cir. 11/1/13), 136 So.3d 12, 14; State v. Odom, 2002-2698 (La. App. 1st Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La. 10/17/03), 855 So.2d 765. However, a trial court's legal findings are subject to a de novo standard of review. See Passow, 136 So.3d at 14.
Louisiana Code of Criminal Procedure Article 578(A)(2) provides that trial of non-capital felonies must be held within two years from the date of the institution of prosecution. "Institution of prosecution" includes the finding of an indictment, or, as in this case, the filing of a bill of information, or affidavit, which is designed to serve as the basis of a trial. La. C.Cr.P. art. 934(7); State v. Cotton, 2001-1781 (La. App. 1st Cir. 5/10/02), 818 So.2d 968, 971, writ denied, 2002-1476 (La. 12/13/02), 831 So.2d 982. As amended by 2013 La. Acts, No. 6, §1, La. C.Cr.P. art. 579 provides, in pertinent part:
A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
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(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.
C. If the defendant fails to appear in court pursuant to any provision of this Article and the defendant is subsequently arrested, the periods of limitations established by Article 578 of this Code shall not commence to run anew until the defendant appears in person in open court where the case on the original charge is pending, or the district attorney prosecuting the original charge has notice of the defendant's custodial location. For purposes of this Paragraph, "notice" shall mean either of the following:
(1) Filing in the court record by either the defendant or his counsel advising the court of his incarceration with a copy provided to the district attorney and certification of notice provided to the district attorney.
(2) Following the seventy-two hour hearing provided by Article 230.1 of this Code, actual notice of arrest is provided to the district attorney and filed in the record of the proceeding of which the warrant against the defendant was issued.
Ordinarily, to satisfy its burden in establishing that an interruption or suspension of the prescriptive period has occurred, the State is required to "exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him." State v. Chadbourne, 98-1998 (La. 1/8/99), 728 So.2d 832, 832 (per curiam). However, the Louisiana Supreme Court in State v. Romar, 2007-2140 (La. 7/1/08), 985 So.2d 722, 726 (per curiam), firmly held that "La. C.Cr.P. art. 579(A)(3) does not impose on the state the affirmative duty to search for a defendant who has failed to appear for trial after receiving actual notice."
In Romar, the defendant was charged in December 1997 with operating a motor vehicle while intoxicated, third offense, in violation of La. R.S. 14:98. In January 1998, the defendant was arraigned and pled not guilty, and was given a trial date of March 16, 1998. The defendant appeared on pretrial motions prior to that date, but requested a continuance, and trial was reset for April 20, 1998. On that date, defendant failed to appear, and on motion of the defense, the court reset trial for June 15, 1998. When defendant failed to appear on that date, the trial court ordered his surety bond forfeited, his personal surety bond revoked, and issued an attachment for his arrest. The defendant did not reappear in court until October 6, 2006, following his arrest on another charge of operating a motor vehicle while intoxicated. On October 9, 2006, the defendant entered a plea of guilty to the attachment, but when he appeared in court for trial on the 1997 charge, he filed a motion to quash on grounds that the time limits for bringing the case to trial had expired.
As noted above, the Louisiana Supreme Court held in Romar, 985 So.2d at 726, that Article 579(A)(3) "does not impose on the state the affirmative duty to search for a defendant who has failed to appear for trial after receiving actual notice." The Court went on to state:
The 1984 amendment of La. C.Cr.P. art. 579 made a defendant's contumacious failure to appear for trial after receiving notice, a direct contempt of court, La.C.Cr.P. art. 21(A)(1), a ground of interruption of the time limits in La.C.Cr.P. art. 578 for bringing him to trial, without regard to whether he thereby intended to avoid prosecution
altogether by rendering himself a fugitive from justice, or whether he had otherwise placed himself beyond the control of the state to secure his presence for trial. In the present case, an interruption of the time limits occurred when defendant failed to appear for trial on April 18, 1998, for which he received actual notice in court at the pre-trial hearing conducted on March 5, 1998.Romar, 985 So.2d at 726.
The Romar Court further held that, "Louisiana law affords the state the discretion to keep the attachment open as a trip wire against the day when a defendant again comes to the attention of the authorities." Romar, 985 So.2d at 727. The Court concluded by stating that "[t]he burden under La.C.Cr.P. art. 579(A)(3) thus falls not on the state to show that defendant had placed himself outside of its control to secure his presence at trial but on defendant and his sureties to avoid the consequences of his failure to appear in court after receiving notice, and one of those consequence[s], since 1984, is the interruption of the time limits placed on trial." Romar, 985 So.2d at 727. See also State v. Evans, 2008-0417 (La. App. 1st Cir. 10/31/08), 998 So.2d 197, 201, writ denied, 2008-2840 (La. 6/19/09), 10So.3d732.
In State v. Baptiste, 2008-2468 (La. 6/23/10), 38 So.3d 247 (per curiam), on March 19, 2003, the defendant was charged by bill of information with two counts of armed robbery. Thereafter, he failed to appear at a June 17, 2004 pre-trial conference pursuant to actual notice (domiciliary service upon the defendant). On June 19, 2004, the trial court issued a warrant for his arrest. On December 30, 2004, the defendant was incarcerated for a probation violation in connection with an unrelated conviction. The State did not receive actual notice of the defendant's whereabouts until March 23, 2007. The trial court granted a motion to quash for violation of La. C.Cr.P. art. 578, and the Fourth Circuit affirmed. Those courts found the failure of the defendant to attend the pre-trial conference interrupted the time limits for commencement of trial, but held the interruption ceased as of the time the defendant was incarcerated, rather than as of the time the State received actual notice of his the whereabouts, because the State had "an obligation to do more than cause an arrest warrant to be issued for the defendant." See State v. Baptiste, 2008-0054 (La. App. 4th Cir. 10/1/08), 995 So.2d 1242, 1243-44 & 1248, reversed, State v. Baptiste, 2008-2468 (La. 6/23/10), 38 So.3d 247 (per curiam).
The Louisiana Supreme Court reversed, holding the lower courts erred in finding the State had a duty under La. C.Cr.P. art. 578 to monitor the status of the outstanding arrest warrant for the defendant, and the State had two years from when it received actual notice of the defendant's whereabouts to prosecute the defendant. Baptiste, 38 So.3d 248.
The instant record is incomplete. There is no evidence of when the defendant was arrested on unrelated charges that resulted in his incarceration or when he was released from incarceration. Furthermore, there is no evidence of what steps the defendant, or his counsel, took to inform the State of his whereabouts, or if the State learned of the defendant's whereabouts through other means. Most notably, specific findings of fact were not made so as to demonstrate when, and from whom, the State received actual notice of the defendant's alias and whereabouts. Since the record probably can be made complete by another hearing on the motion to quash, we remand the matter to the trial court for a reopened hearing on the motion and for a new ruling on the motion in light thereof. See State v. Schaub, 563 So.2d 974, 976 (La. App. 1st Cir. 1990). If, upon remand, the trial court again denies the motion to quash, we reserve to the defendant the right to timely appeal the adverse ruling within thirty days of that ruling. In the absence of such an appeal, the present conditional affirmance of the defendant's conviction and sentence becomes absolute.
CONVICTION AND SENTENCE ON COUNT I CONDITIONALLY AFFIRMED; REMANDED FOR REOPENED HEARING, WITH INSTRUCTIONS. Welch, J., dissents.
I respectfully disagree with the majority's decision to conditionally affirm the defendant's convictions and sentences on count I and to remand for a re-opened hearing on the defendant's motion to quash. I believe the record fully supports the trial court's ruling on the motion to quash and would affirm the defendant's conviction and sentence on count I in its entirety.