Opinion
No. 11-KA-80.
December 13, 2011.
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 07-401, DIVISION "N" HONORABLE HANS J. LILJEBERG, JUDGE PRESIDING.
PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, Parish of Jefferson, TERRY M. BOUDREAUX, JULIET CLARK — APPELLATE COUNSEL, SCOTT SCHLEGEL — TRIAL COUNSEL, ASSISTANT DISTRICT ATTORNEYS, Gretna, Louisiana, COUNSEL FOR APPELLEE, STATE OF LOUISIANA.
JANE L. BEEBE, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, COUNSEL FOR APPELLANT, JOSEPH BARNES.
MARTIN E. REGAN, JR., NISHA SANDHU, Attorneys at Law, New Orleans, LA, COUNSEL FOR APPELLANT, JOSEPH BARNES.
Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
On appeal, defendant challenges his convictions and sentences. For the following reasons, we vacate defendant's multiple offender adjudication and enhanced sentences and remand as follows for a ruling on defendant's motion for new trial.
Procedural history
Because the matter must be remanded, we pretermit discussion of the underlying facts and defendant's assignments of error.
On January 22, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant, Joseph Barnes, with one count of sexual battery in violation of La.R.S. 14:43.1. The State subsequently amended the bill of information, adding a second count of sexual battery, in violation of La.R.S. 14:43.1. Defendant was arraigned on each count and pled not guilty.
On October 14, 2010, a six-person jury found defendant guilty as charged on both counts. On October 22, 2010, defendant filed a motion for new trial and a motion for appeal.
On October 28, 2010, the trial judge sentenced defendant to ten years at hard labor without benefit of parole, probation, or suspension of sentence, on each count, concurrent. At sentencing, the trial court also informed defendant of the sex offender registration and notification requirements. At that hearing, the State filed a multiple bill of information alleging that relator was a fourth felony offender.
On November 4, 2010, the trial court found defendant to be a fourth felony offender, vacated his underlying sentences, and imposed a concurrent sentence of life imprisonment without benefit of probation or suspension of sentence on each count. Defendant's motion for appeal was granted on December 1, 2010.
The State was able to multiple bill defendant on both counts because he was convicted of separate felonies arising out of separate criminal offenses committed at separate times. See State v. Morgan, 06-529, p. 3 (La. App. 5 Cir. 12/12/06), 948 So.2d 199, 202 n. 4;State v. Page, 02-689 (La. App. 5 Cir. 1/28/03), 837 So.2d 165, 177, writ denied, 2003-0951 (La.11/7/03), 857 So.2d 517 (citing State ex rel. Porter v. Butler, 573 So.2d 1106, 1109 (La. 1991)).
As a preliminary note, the record does not reflect that the trial court ruled on defendant's motion for new trial. Although neither the defendant nor the State raised the issue on appeal, it is noticeable on the face of the record and reviewable as a patent error. State v. Randolph, 409 So.2d 554 (La. 1981) (per curiam) (on rehearing, 1982); State v. Christian, 05-635, pp. 3-4 (La.App. 5 Cir. 2/3/06), 924 So.2d 266, 267.
In Randolph, supra, which is factually identical to this case, the Louisiana Supreme Court, on rehearing, recognized that the record did not reflect a ruling on the motion for new trial and vacated its earlier affirmance of the defendant's conviction and sentence.
La.C.Cr.P. art. 853 provides that a motion for a new trial must be filed and disposed of before sentencing. In this case, the record reflects that defendant filed his motion for new trial on October 22, 2010 and the trial judge sentenced defendant on his underlying felonies on October 28, 2010. The record, however, does not reveal a ruling on defendant's motion for new trial.
Recently, in State v. Pettus, 10-742 (La. App. 5 Cir. 5/24/11), 66 So.3d 1192, this Court, which pretermitted discussion of the underlying facts and the defendant's assignments of error where an error patent required vacating a sentence and remand, explained the following:
Most recently, when faced with the lack of a ruling on defense motions for new trial and post verdict judgment of acquittal, this Court has returned to Randolph and, without addressing the merits of defendant's assignments of error, vacated the defendant's sentence and remanded for rulings on the motions, reserving to the defendant his right to appeal his conviction and sentence in the event of unfavorable rulings.
Pettus, 10-742 at 1, 66 So.3d at 1194 (citations omitted).
Therefore, in line with Randolph (on rehearing),Christian, and more recently, Pettus, we vacate defendant's multiple offender adjudication and sentences and remand this matter to the trial court for a ruling on defendant's motion for new trial. We specifically reserve defendant's right to appeal his convictions and sentences in the event that the ruling on his motion for new trial is adverse to him.
VACATED: REMANDED