Opinion
No. 2019-K-00533
10-06-2020
STATE of Louisiana v. Reginald JONES
Application for reconsideration denied.
Johnson, C.J., would grant and assigns reasons.
Weimer, J., concurs in result and assigns reasons.
Genovese, J., would grant.
Johnson, C.J., would grant rehearing and assigns reasons:
Defendant was convicted of aggravated assault with a firearm, possession of a firearm by a convicted felon, and obstruction of justice. The district court sentenced him as a habitual offender on each count to serve 20 years imprisonment at hard labor, with the sentences to run concurrently. On appeal, the defendant alleged insufficiency of the evidence, erroneous admission of a prior conviction for possession of cocaine, and various errors relating to his habitual offender adjudication. The court of appeal affirmed. State v. Jones, 18-0973 (La. App. 4 Cir. 2/27/19), ––– So.3d ––––, 2019 WL 959790 (unpub'd). This Court denied the defendant's writ application seeking review of the court of appeal's affirmance on direct review on March 16, 2020.
Under La.S.Ct. Rule 9 § 1, the defendant had 14 days to apply for rehearing (i.e. until March 30, 2020), but in a series of orders beginning on March 20, this Court extended all filing deadlines due to the COVID-19 pandemic until June 16, 2020. The application for rehearing was filed on June 18, 2020, with USPS tracking information showing it was mailed on June 16, 2020. Under La.S.Ct. Rule 9 § 2:
An application for rehearing properly mailed on or before the last day of the
delay shall be deemed timely filed. If the application is received by mail on the first legal day following the expiration of the delay, there shall be a rebuttable presumption that it was timely filed. In all cases where the presumption does not apply, the timeliness of the mailing shall be shown only by an official United States postmark or by official receipt or certificate from the United States Postal Service, or bonafide commercial mail services such as Federal Express or United Parcel Service, made at the time of mailing which indicates the date thereof. Any other date stamp, such as a private commercial mail meter stamp, or label from an Automated Postal Center, shall not be used to establish timeliness.
Because the official USPS tracking certificate shows the application for rehearing was properly mailed on the last day of the delay, the application for rehearing is timely.
Defendant alleges his convictions for the two most serious counts in his three count indictment, aggravated assault with a firearm and possession of a firearm by convicted felon, were by non-unanimous jury verdicts. The minute entries do not indicate whether the verdicts were unanimous. But the court reporter's notes and an e-mail confirmation from the trial judge indicates that the jury vote on those two counts was 10-2.
Mr. Jones's application for rehearing included correspondence from the trial judge to Mr. Jones's counsel confirming that two of the verdicts were non-unanimous. The correspondence reads, in pertinent part:
I am reliably informed by the court-reporter who transcribed the proceedings... that the verdicts returned in Mr. Reginald Jones’ trial were as follows: Count 1, aggravated assault with a firearm, 10-2 verdict for Guilty a charged [sic]; Count 2, possession of firearm by convicted felon, 10-2 verdict for Guilty as charged, Count 3, obstruction of justice, unanimous verdict of Guilty as charged.
I would remand the case to the court of appeal on direct review to conduct an error patent review under Ramos v. Louisiana, ––– U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020). The present matter was pending on direct review when Ramos was decided on April 20, 2020, and therefore the holding of Ramos applies. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). This Court has remanded numerous applications, which were pending here on direct review when Ramos was decided, to the circuit courts to conduct new error patent reviews in light of Ramos. See e.g., State v. Mesa, 19-KH-01908 (La. 6/3/20), 296 So.3d 1044 (per curiam).
Therefore, in my view, Mr. Jones's application for rehearing should be granted. Regardless that the non-unanimous jury claim was initially not preserved for review in the trial court or raised in Mr. Jones's initial direct appeal, the court of appeal should nonetheless consider the issue as part of its error patent review. See La.C.Cr.P. art. 920(2). The remand order should only pertain to Mr. Jones’ convictions obtained by non-unanimous jury verdict: counts one and two of the indictment.
WEIMER, J., concurs in the result.
Given the procedural posture of this case, I respectfully concur in the denial of rehearing in this matter.
Defendant's writ application was unanimously denied by this court on March 16, 2020. State v. Jones , 19-0533 (La. 3/16/20). In that application, which pre-dated the U.S. Supreme Court decision in Ramos v. Louisiana , ––– U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), no mention (much less complaint) was made as regards the non-unanimous jury verdict on two of defendant's three convictions. That issue was raised for the first time in an application for rehearing filed by defendant on June 18, 2020.
This court's ability to address the Ramos issue, raised for the first time on rehearing, is foreclosed by both the rules of this court and of the Code of Criminal Procedure. La. S.Ct. Rule IX, § 6 provides that "[a]n application for rehearing will not be considered when the court has merely granted or denied an application for a writ of certiorari or a remedial or other supervisory writ ...." Likewise, La. C.Cr.P. art. 922(D) provides that "[i]f an application for a writ of review is timely filed with the supreme court, the judgment of the appellate court from which the writ of review is sought becomes final when the supreme court denies the writ." Pursuant to these rules, this matter is now final, and not properly reviewable by application for rehearing.
However, that finality does not leave the defendant without an avenue for potential review. He still has available post-conviction proceedings.
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The U.S. Supreme Court granted certiorari to consider whether Ramos applies retroactively to cases on federal collateral review. Edwards v. Vannoy , ––– U.S. ––––, 140 S.Ct. 2737, 206 L.Ed.2d 917 (5/4/2020). Furthermore, I have repeatedly and consistently voted to grant writs and to order briefing and argument to consider the retroactivity of Ramos to cases on collateral review under state law. However, because defendant's case has been final on direct review since March 16, 2020, defendant's Ramos claims are not properly before this court at this time.