State of Louisiana Versus Ronnie Lim ( 2020 )

STATE OF LOUISIANA NO. 20-KA-20
VERSUS FIFTH CIRCUIT
RONNIE LIM COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 17-2323, DIVISION "B"
HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING
September 22, 2020
MARC E. JOHNSON
JUDGE
Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and John J. Molaison, Jr.
CONVICTION AND SENTENCE VACATED; REMANDED FOR
FURTHER PROCEEDINGS
MEJ
RAC
JJM
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Douglas E. Rushton
Meredith Hearn
COUNSEL FOR DEFENDANT/APPELLANT,
RONNIE LIM
Bertha M. Hillman
JOHNSON, J.
Defendant/Appellant, Ronnie Lim, appeals his conviction for sexual battery
on a victim under the age of 13 years and sentence from the 24th Judicial District
Court, Division “B”. For the following reasons, we reverse the conviction and
sentence and remand the matter to the trial court for further proceedings.
FACTS AND PROCEDURAL HISTORY
On August 24, 2017, the Jefferson Parish District Attorney filed a bill of
information charging Defendant with sexual battery on a victim under the age of
13 years, in violation of La. R.S. 14:43.1. Defendant was arraigned on October 16,
2017, and he pleaded not guilty.1
Defendant filed omnibus motions, including a motion to suppress the
statement, which the court denied at the hearing on April 5, 2018.2 Thereafter,
trial commenced before a 12-person jury on April 22, 2019 and concluded on April
24, 2019. In an 11-1 verdict, the jury found Defendant guilty as charged. Defense
counsel requested a polling of the jury.3 Defense counsel did not object to the
non-unanimous jury verdict at that time. On July 10, 2019, Defendant filed a
motion for new trial, arguing that his conviction by a non-unanimous jury verdict
violated the Sixth and 14th Amendments of the United States Constitution.
Following a hearing on July 25, 2019, the trial court denied Defendant’s motion for
new trial, and the defense’s objection was noted for the record.
On September 20, 2019, the trial court sentenced Defendant to 25 years
imprisonment at hard labor without the benefit of parole, probation, or suspension
of sentence. It also recommended Defendant for participation in any and all self-
1
The bill of information was amended on April 23, 2019 to correct a typographical error by
changing the language from “and/or the touching of the anus of genitals of the offender” to “and/or the
touching of the anus or genitals of the offender.” (Emphasis added).
2
The court denied the defense’s motion to suppress the statement and found “that it was freely
and voluntarily given in response to the rights of the arrestee form.”
3
The court ordered the polling slips to be placed under seal, but they are not included in the
record. The April 24, 2019 transcript reflects that in an 11-1 verdict, the jury found Defendant guilty as
charged.
20-KA-20 1
help programs available to him through the Department of Corrections. Defendant
was also advised of his sex offender registration obligations pursuant to La. R.S.
15:543.1 and was provided with a written copy of the sex offender notification
requirements. At sentencing, defense counsel objected to the sentence as excessive
based on constitutional grounds and informed the court that he would be filing a
motion for appeal. On October 11, 2019, Defendant filed a motion for appeal,
which was granted by the trial court on October 15, 2019. The instant appeal
followed.
LAW AND ANALYSIS
In his only assignment of error, Defendant alleges that the trial court erred in
denying his motion for a new trial and accepting a non-unanimous jury verdict.
Defendant argues that the non-unanimous verdict violated the Sixth and 14th
Amendments of the United States Constitution. He notes La. C.Cr.P. art. 782(A)
was amended to provide for unanimous jury verdicts for crimes committed on or
after January 1, 2019, and acknowledges that his offense does not fall within the
time frame of the amendments. He states that at the time the offense was
committed, the non-unanimous jury provision in La. C.Cr.P. art. 782(A) and La.
Const. Art. 1, § 17(A) of the Louisiana Constitution were inconsistent with the
Sixth and 14th Amendments to the United States Constitution. Defendant asserts
that while the Supreme Court in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628,
32 L.Ed.2d 184 (1972) upheld state convictions by non-unanimous verdicts, recent
jurisprudence requires a unanimous verdict. Defendant acknowledges that the
Louisiana Supreme Court held in State v. Bertrand, 08-2215 (La. 3/17/09); 6 So.3d
738, that Article 782 did not violate the Sixth and 14th Amendments, but Defendant
asserts that the Apodaca decision was wrong.
Further, Defendant argues that his conviction is not final and states that the
amended legislation requiring a unanimous verdict applies retroactively to his case.
20-KA-20 2
Specifically, he argues that the 2018 amendments to Louisiana Constitution Art. 1,
§ 17(A) and La. C.Cr.P. art. 782(A), requiring unanimous jury verdicts for those
offenses punishable by confinement necessarily at hard labor, apply retroactively
to those defendants whose convictions were not yet final as of November 6,
2018—the date Louisiana residents voted to amend the Louisiana Constitution.
Defendant concedes that the amendments contain prospective language and have
an effective date but maintains the 2018 amendments apply to him retroactively
under State v. Draughter, 13-914 (La. 12/10/13); 130 So.3d 855.4
Based upon the following, we find that the non-unanimous jury verdict used
to convict Defendant of sexual battery on a victim under the age of 13 years is
unconstitutional.
In Ramos v. Louisiana, , --- U.S. ---, 140 S.Ct. 1390, 206 L.Ed.2d 583(2020), the United States Supreme Court found that the Sixth Amendment right to
a jury trial—as incorporated against the states by the Fourteenth Amendment—
requires a unanimous verdict to convict a defendant of a serious offense. It held,
“Wherever we might look to determine what the term “trial by an impartial jury
trial” meant at the time of the Sixth Amendment’s adoption—whether it’s the
common law, state practices in the founding era, or opinions and treatises written
soon afterward—the answer is unmistakable. A jury must reach a unanimous
verdict in order to convict.” Id. at 1395. The Supreme Court concluded, “There
can be no question either that the Sixth Amendment’s unanimity requirement
applies to state and federal trials equally…So if the Sixth Amendment’s right to a
4
In Draughter, the Louisiana Supreme Court reviewed a trial court’s decision declaring La. R.S.
14:95.1 unconstitutional. The trial court’s determination was based on the legislature’s recent amendment
to La. Const. Art. 1, § 11, providing that the right to keep and bear arms is a fundamental right. To
evaluate the constitutionality of La. R.S. 14:95.1, the supreme court had to determine whether the older
version of Article 1, § 11, which invoked a “reasonableness” test for evaluating restrictions on the right to
bear arms applied or whether the amended version, which required “strict scrutiny” when evaluating any
restrictions on the fundamental right, would apply. After determining the statute required review with
strict scrutiny, it held the amendment to Article 1, § 11 had retroactive effect to cases pending on direct
review or not yet final on the date that the amendment became effective. Draughter, 130 So.3d at 863-64.
20-KA-20 3
jury trial requires a unanimous verdict to support a conviction in federal court, it
requires no less in state court.” Id. at 1397. According to Ramos, Louisiana will
have to retry defendants who were convicted of serious offenses by non-unanimous
juries and whose cases are still pending on direct appeal.
Under Louisiana law, the penalty for a conviction of sexual battery on a
victim under the age of 13 years is found in La. R.S. 14:43.1. It provides that,
when an offender 17 years of age or older commits the crime of sexual battery on a
victim under the age of 13 years, the offender shall be punished by imprisonment
at hard labor for not less than 25 years nor more than 99 years. At least 25 years of
the sentence imposed shall be served without benefit of parole, probation, or
suspension of sentence. See La. R.S. 14:43.1. For purposes of the Sixth
Amendment, federal law defines petty offenses as offenses subject to
imprisonment of six months or less and serious offenses as offenses subject to
imprisonment over six months. The Sixth Amendment’s right to a jury trial only
attaches to serious offenses. See generally, Lewis v. United States, 518 U.S. 322,
327-28, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996); Hill v. Louisiana, 2013 WL
486691 (E.D. La. 2013).
In light of Ramos and the fact that the instant case is on direct appeal, we
find that, because the verdicts were not unanimous for the serious offense before
us, the conviction and sentence must be vacated. Defendant is entitled to a new
trial. Because Defendant is entitled to a new trial pursuant to Ramos, we pretermit
discussion of Defendant’s argument concerning Draughter.5
DECREE
For the foregoing reasons, we find that Defendant is entitled to a new trial.
Accordingly, Defendant’s conviction and sentence are vacated, and the matter is
5
We note that an errors patent review was performed in this matter. We find that no corrective actions
were necessary.
20-KA-20 4
remanded to the trial court for further proceedings.
CONVICTION AND SENTENCE VACATED;
REMANDED FOR FURTHER PROCEEDINGS
20-KA-20 5
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
SEPTEMBER 22, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-KA-20
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE CORNELIUS E. REGAN (DISTRICT JUDGE)
THOMAS J. BUTLER (APPELLEE) BERTHA M. HILLMAN (APPELLANT) GRANT L. WILLIS (RESPONDENT)
MAILED
HONORABLE JEFFREY M. LANDRY HONORABLE PAUL D. CONNICK, JR.
(RESPONDENT) (APPELLEE)
ATTORNEY GENERAL DISTRICT ATTORNEY
LOUISIANA DEPARTMENT OF JUSTICE DOUGLAS E. RUSHTON (APPELLEE)
1885 NORTH 3RD STREET MEREDITH HEARN (APPELLEE)
6TH FLOOR, LIVINGSTON BUILDING ASSISTANT DISTRICT ATTORNEYS
BATON ROUGE, LA 70802 TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053