State of Louisiana Versus Michael Anthony Short ( 2023 )

STATE OF LOUISIANA NO. 22-KA-263
VERSUS FIFTH CIRCUIT
MICHAEL ANTHONY SHORT COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 19-6094, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
February 27, 2023
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Hans J. Liljeberg
SENTENCE VACATED,
CASE REMANDED
SMC
FHW
HJL
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Monique D. Nolan
Gabrielle Hosli
Kristen Landrieu
COUNSEL FOR DEFENDANT/APPELLANT,
MICHAEL ANTHONY SHORT
Bertha M. Hillman
CHEHARDY, C.J.
On February 14, 2020, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Michael Anthony Short, with one count of
introducing or possessing contraband in the form of a makeshift weapon into the
Jefferson Parish Correctional Center, a violation of La. R.S. 14:402. Defendant
pled not guilty. On April 21, 2022, a six-person jury unanimously found defendant
guilty as charged.
On April 27, 2022, before sentencing, defendant filed a Motion for New
Trial and a Motion for Post-Verdict Judgment of Acquittal. At the sentencing
hearing later the same day, the trial court sentenced defendant to ten years in the
Department of Corrections.1 Immediately after sentencing, the trial court denied
defendant’s motion for new trial and motion for post-verdict judgment of
acquittal.2 Defendant objected, and on May 2, 2022, he filed a Motion for
Reconsideration of Sentence and a Motion for Appeal. On May 4, 2022, the trial
court denied defendant’s motion for reconsideration and granted his motion for
appeal.3
Defendant’s sole assignment of error on appeal is that his sentence is
constitutionally excessive.
1
This Court has previously held that when the trial judge states that the defendant is sentenced to
the “Department of Corrections,” the sentence is necessarily at hard labor. State v. Jamison, 17-
49 (La. App. 5 Cir. 5/17/17), 222 So.3d 908, 909 n.2.
2
The trial court signed the orders denying both motions on May 2, 2022.
3
It is not clear from the record whether the trial court denied defendant’s motion for
reconsideration of sentence before or after ruling on defendant’s motion for appeal. Regardless
of the order of the trial court’s rulings, the court maintained jurisdiction to rule on the timely
filed motion to reconsider sentence under La. C.Cr.P. art. 916(3), which provides in pertinent
part:
The jurisdiction of the trial court is divested and that of the appellate court attaches
upon the entering of the order of appeal. Thereafter, the trial court has no
jurisdiction to take any action except as otherwise provided by law and to:
***
(3) Correct an illegal sentence or take other appropriate action pursuant to a
properly made or filed motion to reconsider sentence.
22-KA-263 1
Our review of the record reveals errors patent in conjunction with
defendant’s timely filed motion for new trial and motion for post-verdict judgment
of acquittal, because the trial court denied these motions after imposing
defendant’s sentence on April 27, 2022.
La. C.Cr.P. art. 821(A) requires that a motion for post-verdict judgment of
acquittal be made and disposed of before sentencing. State v. Christian, 05-635
(La. App. 5 Cir. 2/3/06), 924 So.2d 266, 267. Similarly, La. C.Cr.P. art. 853(A)
provides that a motion for new trial generally must be filed and disposed of before
sentencing. State v. Barnes, 11-80 (La. App. 5 Cir. 12/13/11), 92 So.3d 9, 12, writ
denied, 12-951 (La. 11/9/12), 100 So.3d 828. See also State v. Aguliar-Benitez, 16-
336 (La. App. 5 Cir. 12/7/16), 206 So.3d 472, 473 (vacating the trial court’s denial
of the defendant’s motion for new trial, which was denied after his sentence was
imposed); State v. Common, 10-996 (La. App. 5 Cir. 11/15/11), 78 So.3d 237, 245,
writ denied, 11-2779 (La. 9/28/12), 98 So.3d 825 (vacating an enhanced sentence,
remanding for a hearing on the motions for post-verdict judgment of acquittal and
new trial, and for resentencing).
Given the trial court’s procedural error, we pretermit discussion of
defendant’s assignment of error regarding the constitutionality of his sentence. We
vacate defendant’s sentence, vacate the trial court’s rulings on defendant’s
motions, and remand for the trial court to rule on defendant’s motion for post-
verdict judgment of acquittal, his motion for new trial, and for resentencing.4
Defendant’s right to appeal any adverse ruling on his motions, or his new sentence,
is preserved.
SENTENCE VACATED,
CASE REMANDED
4
At the time of sentencing, the trial court also failed to advise defendant of his right to post-
conviction relief pursuant to La. C.Cr.P. art. 930.8. The trial court may properly advise
defendant if he is resentenced.
22-KA-263 2
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
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
FEBRUARY 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-KA-263
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
MONIQUE D. NOLAN (APPELLEE) THOMAS J. BUTLER (APPELLEE) BERTHA M. HILLMAN (APPELLANT)
MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
GABRIELLE HOSLI (APPELLEE)
KRISTEN LANDRIEU (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053