State Of Louisiana v. Johnny Mitchell Skipper ( 2023 )

NOT FOR PUBLICATION
1 STATE OF LOUISIANA
w
A L) COURT OF APPEAL
FIRST CIRCUIT
2023 KA 0088
STATE OF LOUISIANA
VERSUS
JOHNNY MITCHELL SKIPPER
JUDGMENT RENDERED:
SEP 15 2023
Appealed from The Twenty -First Judicial District Court
Parish of Livingston • State of Louisiana
Docket Number 42, 074 • Division E
The Honorable Brenda Bedsole Ricks, Presiding Judge
Bertha M. Hillman COUNSEL FOR APPELLANT
Louisiana Appellate Project DEFENDAM— Johnny Mitchell
Covington, Louisiana Skipper
Scott M. Perrilloux COUNSEL FOR APPELLEE
District Attorney State of Louisiana
Brett Sommer
Assistant District Attorney
Amite, Louisiana
BEFORE: WELCH, HOLDRtDGE, AND WOLFS, JJ.
C S.
WELCH, I
The State of Louisiana charged the defendant, Johnny Mitchell Skipper, by
amended bill of information with two counts of indecent behavior with a juvenile,
violations of La. R.S. 14: 81( A)(2), and one count of obstruction of justice, a
violation of La. R.S. 14: 13 0. L' The defendant entered a plea of not guilty. Following
a trial by jury, the jury found the defendant guilty as charged on all counts. The
defendant filed a motion in arrest ofjudgment, motion for new trial, and motion for
post -verdict judgment of acquittal. Fallowing a hearing, the trial court denied all
three motions.
The trial court sentenced the defendant to seven years at hard labor on each
count of indecent behavior with a juvenile ( counts one and two), and five years at
hard labor for obstruction of justice ( count three), and ordered all sentences to run
consecutively to one another, without benefit of parole, probation, or suspension of
sentence. After his adjudication as a fourth -felony habitual offender, the trial court
vacated the defendant' s original sentences and sentenced the defendant to life
imprisonment.
The defendant now appeals,
alleging that his enhanced sentence is
unconstitutionally excessive. The defendant also argues that the record contains
patent errors affecting his substantial rights. For the following reasons, we vacate
the defendant' s original sentences and his enhanced sentence, and we remand this
matter to the trial court for resentencing, with instructions.
The State of Louisiana originally charged the defendant by bill of information with two counts
of computer- aided solicitation of a minor, violations of La. R.S. 14: 81. 3, and one count of
obstruction of justice, a violation of La. R. S. 14: 130. 1. The bill of information was amended on or
about February 14, 2022, changing counts one and two to two counts of indecent behavior with a
juvenile, violations of La. R. S. 14: 81( A)(2), and keeping count three, obstruction of justice, a
violation of La. R. S. 14: 130. 1, unchanged.
2
FACTS
On September 30, 2020, while incarcerated in the Livingston Parish Detention
Center (" LPDC") on unrelated charges, the defendant and A.M.z spoke via a video
call through the LPDC' s communication system for inmates. A.M. is a female friend
of one of the defendant' s cousins. During this call, A.M. admitted to the defendant
that she was only sixteen years old, despite previously telling him that she was
older.'
At this point in the conversation, the defendant became agitated, walked away
from the tablet, and ended the call. Shortly thereafter, they spoke on another video
call and again discussed A.M.' s age.
Then, on October 6, 2020, the defendant talked to A.M. via a video call using
another inmate' s account. During this call, the defendant repeatedly asked A.M. to
expose herself to him. A.M. refused the defendant' s requests many times, but
ultimately exposed one of her breasts to him.
On October 9, 2020, the defendant and A.M. spoke again via a video call
through yet another inmate' s account. During this call, the defendant again asked
A.M. to expose herself to him numerous times. Despite telling him no at first, she
eventually exposed her entire chest to him. After this, the defendant told A.M. to
show him her vagina, and tried to explain to her how she could do so without other
people seeing. A.M. refused, and the defendant repeatedly called her a "[ p* ssy]" and
told her to " stop playing."
Detective Steven Lovett with the Livingston Parish Sheriffs Office testified
that he was investigating the defendant. While monitoring the defendant' s
communications, Detective Lovett came across the defendant' s conversations with
A.M. and, based on the content of the videos, obtained an arrest warrant for the
2 In accordance with La. R.S. 46: 1844( W), the victim, who is a minor, will be referred to by her
initials to protect her identity.
3 A.M.' s date of birth is July 26, 2004. The defendant was twenty- four years old at the time of
these communications with A.M.
3
defendant for two counts of computer- aided solicitation of a minor, violations of La,
R.S. 14: 81. 3. The defendant was arrested and re -booked into the LPDC on
November 12, 2020. 14e again spoke to A.M. on the video call system on November
24, 2020, and tried to convince her to disregard any " court summons" and refuse to
appear in court because as long as she did not appear in court, he would be able to
go home.
After a jury trial, the jury found the defendant guilty as charged on the
amended bill of information, of two counts of indecent behavior with a juvenile,
violations of La. R.S. 14: 81( A)( 2), and one count of obstruction of justice, a
violation of La. R.S. 14: 130. 1. The trial court sentenced him to seven years at hard
labor on both counts of indecent behavior with a juvenile and five years at hard labor
for the obstruction ofjustice count, and ordered all sentences to run consecutively to
one another, without benefit of probation, parole, or suspension of sentence, After
the State filed a multiple offender bill of information, the trial court adjudicated the
defendant a fourth -felony offender, vacated his original sentences, and sentenced the
defendant to life imprisonment.
ERRORS PATENT REVIEW
Under the authority of La. C. Cr.P. art. 920( 2), this Court routinely reviews
appellate records for patent error. State v. Sylve, 2022- 1104 ( La. App. 1st Cir.
2/ 24/ 23), 2023 WL 2198829, * 3 ( unpublished). A patent error is one that is
discoverable by a mere inspection of the pleadings and proceedings and without
inspection of the evidence. La. C.Cr.P. art. 920( 2). Our review of the record reveals
two patent errors: ( 1) the trial court prematurely granted the defendant' s motion for
appeal and, thus, was divested of jurisdiction; and ( 2) after the defendant was
adjudicated a fourth -felony habitual offender, the trial court failed to provide a
sentence as to each conviction, i.e., the trial court failed to specify which sentence
or sentences were being enhanced.
4
Additionally, the defendant' s brief on appeal alleges two patent errors,
namely: ( 1) the notice of appeal was prematurely filed and signed prior to sentencing
and prior to the habitual offender proceeding; and ( 2) neither the minute entry nor
the transcript of the habitual offender proceeding indicate which sentence was
vacated by the trial court, and the trial court did not provide written reasons for its
determination.
The defendant was convicted on May 17, 2022. On May 25, 2022, the
defendant filed a motion in arrest ofjudgment, motion for new trial, and motion for
post -verdict judgment of acquittal ( collectively, " post -trial motions"), which were
all set for hearing on June 15, 2022. Following the hearing, the trial court denied all
three motions. The defendant also filed a motion for appeal on May 25, 2022, and
the trial court granted the motion for appeal on June 1, 2022, prior to the June 15,
2022 hearing on the post -trial motions and the defendant' s sentencing.' The trial
court issued a notice of appeal on June 6, 2022.
Premature Appeal
It is well- settled that a defendant can appeal from a final judgment of
conviction only where a sentence has been imposed. La. C. Cr.P. art. 912( C)( 1);
State v. Chapman, 471 So.2d 716 ( La. 1985) ( per curiam); State v. Morgan, 2020-
1327 ( La. App. I" Cir. 10! 8121), 2021 WL 4704796, * 2 ( unpublished), writ denied,
2021- 01923 ( La. 2122122), 333 So. 3d 444. Moreover, pursuant to La. C.Cr.P. art.
916, the trial court is divested ofjurisdiction upon the entering of the order ofappeal.
Once the trial court is divested of jurisdiction, it may take only certain specified
actions, none of which include ruling on post -trial motions or imposing a sentence.
See La. C.Cr.P. art. 916; State v. Woods, 2019- 200 (La. App. 5' Cir. 12/ 26/ 19), 288
So. 3d 256, 258. Thus, after the trial court granted the defendant' s motion for appeal
4 In accordance with La. C. Cr.P. art. 873, the defendant waived the sentencing delays.
R
on June 1, 2022, the trial court was divested ofjurisdiction to rule on the defendant' s
post -trial motions or to impose a sentence.
However, the trial court' s denial of the defendant' s post -trial motions is not at
issue in the instant appeal; in fact., the defendant does not challenge his convictions,
only his habitual offender sentence. Thus, we find that the denial of the defendant' s
post -trial motions after the trial court was divested ofjurisdiction was harmless error
where the defendant does not challenge the denial or substance of these motions on
appeal. See State v. Robinson, 98- 0005 ( La. App. 4th Cir. 9/ 29/ 99), 743 So. 2d 814,
815- 16. 5 Cf. Woods, 288 So. 3d at 259 ( remand is proper when the trial court was
already divested ofjurisdiction at the time it denied the defendant' s motion for new
trial, the substance of which he then raised on appeal.); and Cf. State v. Johnson,
2013- 75 ( La. App. 5"' Cir. 10/ 9/ 13), 128 So. 3d 325, 329.
Ori inal Sentencing Error
In this case, the trial court sentenced the defendant after it signed the order of
appeal and no longer had jurisdiction to impose a sentence. While a defendant may
only appeal from a final judgment of conviction where a sentence has been imposed,
see La. C. Cr.P. art. 912( C)( 1), the jurisprudence holds that when a sentence has been
imposed after a motion for appeal has been granted, the appeal will not be dismissed
where doing so would simply result in a delay of the appellate process and hinder
the defendant' s right to appeal. See State v. Lampkin, 2012- 391 ( La. App. 5th Cir.
5/ 16/ 13), 119 So. 3d 158, 162, writ denied, 2013- 2303 ( La. S/ 23/ 14), 140 So. 3d 717;
State v. Brooks, 93- 1767 ( La. App. 4th Cir. 2/ 25/ 94), 633 So. 2d 816, 818, writ
denied, 94- 1939 ( La. 913/ 96), 678 So.2d 548. See also State v. Jackson, 2015- 1710
La. App. 1St Cir. 4/ 15/ 16), 2016 WL 1535170, * 3 n. l ( unpublished). As will be
5 While the motion for new trial in Robinson was also untimely filed after an order of appeal had
been signed, this does not alter the premise that the improper denial of a post -trial motion after the
trial court was divested of jurisdiction is harmless when the substance of the motions is not the
subject of the appeal.
0
discussed more fully below, we are vacating the defendant' s enhanced sentence and
remanding for resentencing. Thus, to also vacate and remand the defendant' s
original sentences will cause no delay to the appellate process, nor hinder the
defendant' s right to appeal. We further note that although the trial court vacated the
defendant' s original sentences upon his adjudication as a fourth -felony habitual
offender and imposition of an enhanced sentence, the trial court did not have
jurisdiction to do so because the motion for appeal had been granted and the order
of appeal had already been signed. Accordingly, we vacate the defendant' s original
sentences and remand this matter on the basis that the trial court imposed the
defendant' s original sentences after the trial court was divested of jurisdiction.
Enhanced Sentencing Error
Although the trial court was divested of jurisdiction once the order of appeal
was signed, the Louisiana Code of Criminal Procedure specifically provides that the
trial court may impose a habitual offender sentence after an appeal is granted without
affecting the jurisdiction of the court of appeal. See La. C.Cr.P. art. 916( 8).
Nonetheless, there is an error with respect to the defendant' s enhanced sentence. The
defendant was found guilty of two counts of indecent behavior with a juvenile and
one count of obstruction of justice. However, the habitual offender pleadings and
amended bill of information fail to specify which of the defendant' s convictions
were being enhanced. Likewise, at the habitual offender sentencing hearing, neither
the trial court nor the prosecutor identified which convictions were being enhanced.
The minutes and transcript also do not reflect which convictions were enhanced,
while the amended commitment order suggests that all three convictions were
enhanced to life sentences. At the hearing, the trial court merely stated that: " The
Court will vacate the sentence and impose the sentence of life imprisonment." The
minutes also state: " The Court vacated the previous sentence and imposed a life
sentence with the Department of Corrections at hard labor." Thus, it is unclear
7
whether the trial court imposed an enhanced sentence as to all or a portion of the
defendant' s convictions.
If the trial court imposed enhanced sentences as to all of the defendant' s
convictions, then the defendant' s convictions for two counts of indecent behavior
with a juvenile and one count of obstruction ofjustice require the imposition of three
separate sentences. A sentencing error occurs when a trial court, in sentencing for
multiple counts, does not impose a separate sentence for each count. State v. Mayo,
2012- 0707 (La. App. 1`` t Cir. 6/ 7/ 13), 2013 WL 2490361, * 1 ( unpublished). If a court
fails to impose a sentence for each of two or more convictions, or fails to specify
which of the sentences is being enhanced under the habitual offender statute, the
sentence or sentences must be set aside and the matter remanded for the defendant
to be resentenced. State v. Murphy, 2016- 0901 ( La. App. 1st Cir. 10/ 28/ 16), 206
So. 3d 219, 232.
CONCLUSION
In the absence of valid sentences, the defendant' s appeal is not properly before
this court. Therefore, we do not consider the defendant' s assignments of error, as
this appeal is not properly before the court. We vacate the defendant' s original
sentences imposed by the trial court, as the trial court was divested ofjurisdiction to
impose those sentences since the motion for appeal had been granted and the order
of appeal had been signed, and we remand the matter to the trial court for
resentencing.
We likewise vacate the incorrect enhanced sentence imposed by the trial court,
and we remand the matter to the trial court for resentencing, with instructions that
the trial court impose a separate enhanced sentence or sentences for each conviction.
We further order the trial court to specifically provide which sentences are being
enhanced pursuant to the defendant' s adjudication as a habitual offender. After
resentencing, the defendant may perfect a new appeal if he so chooses.
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DECREE
ORIGINAL SENTENCES AND ENHANCED SENTENCE VACATED;
REMANDED FOR RESENTENCING WITH INSTRUCTIONS.
STATE OF LOUISIANA STATE OF LOUISIANA
COURT OF APPEAL
VERSUS
FIRST CIRCUIT
lwr,
JOHNNY MITCHELL SKIPPER NO. 2023 KA 0088
WOLFE, J., concurring in part and dissenting in part.
I concur in vacating the defendant' s habitual offender sentence due to the trial
court' s failure to specify the sentence being enhanced. See State v. Murphy, 2016-
0901 ( La. App. 1st Cir. 1012$ 116), 206 So. 3d 219, 232. Although the trial court erred
procedurally by signing the order of appeal before imposing the underlying
sentences and then entertaining post -trial motions, the imposition of sentence cured
the defect of a premature motion for appeal. See State v. Hunter, 201.3- 1377 ( La.
App. 1st Cir. 11/ 21/ 13), 2013 WL 12120318 ( unpublished). Therefore, I
respectfully disagree with the necessity of adopting the harmless error analysis
applied by the Fourth and Fifth Circuits, particularly where the trial court retained
jurisdiction to sentence the defendant as a habitual offender. See La. Code Crim. P.
art. 916( 8). Finally, in imposing the habitual offender sentence, the trial court
vacated the originally imposed sentences; therefore, I disagree with again vacating
the original sentences.