State of Louisiana Versus Josue Hernandez-Romero ( 2023 )

STATE OF LOUISIANA NO. 23-K-396
VERSUS FIFTH CIRCUIT
JOSUE HERNANDEZ-ROMERO COURT OF APPEAL
STATE OF LOUISIANA
September 13, 2023
Linda Wiseman
First Deputy Clerk
IN RE STATE OF LOUISIANA
APPLYING FOR SUPERVISORY WRIT FROM THE FIRST PARISH COURT, PARISH OF JEFFERSON,
STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JOHN J. LEE, JR., DIVISION "B", NUMBER
F2073607
Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and John J. Molaison, Jr.
WRIT GRANTED
In this writ application, relator, the State, seeks review of the trial court’s
grant of the defendant’s motion to quash the bill of information filed against him.
For the following reasons, this writ application is granted.
On May 8, 2017, a bill of information was filed charging the defendant,
Josue Hernandez-Romero, with violating La. R.S. 14:98(A) and La. R.S.
14:98.1(A)(1), first offense driving while intoxicated (count 1); La. R.S. 32:301,
driving without required lighting (count 2); La. R.S. 32:52, operating a motor
vehicle without an operator’s license (count 3); and La. R.S. 32:58, failure to
maintain control of a motor vehicle (count 4). The defendant received appearance
bond notices to appear in court on June 27, 2017; however, he failed to appear.1
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The defendant’s traffic ticket, Uniform DWI Arrest Citation, issued on March 26, 2017, stated that his next court
appearance was June 26, 2017. However, the defendant’s appearance bonds, issued on March 27, 2017, stated that
his next court appearance was on June 27, 2017. It appears that June 27, 2017 is the correct arraignment date due to
23-K-396
On July 11, 2017, an attachment hearing was held, and the court issued an
attachment for the defendant’s arrest. On February 1, 2023, the defendant filed a
Motion to Quash and/or for Absolute Dismissal of Charges and a Motion to Re-set
and Recall Attachment. On the same day, the court signed an order recalling the
defendant’s attachment and set the motion for hearing. At the conclusion of the
hearing held on June 13, 2023, the court granted the defendant’s motion to quash.
The State objected to the court’s ruling and gave oral notice to take a writ. After
obtaining extensions of the return date, this writ application was timely filed.
In the motion to quash, the defendant states that he was arrested on March
26, 2017, and then transferred from state custody to immigration custody. He
remained “incarcerated with immigration” until August 24, 2017, when he
departed the United States. The defendant asserts that he was in immigration
custody on June 26, 2017, but he was not brought to court due to the State’s failure
to secure his presence. He claims that the State was aware that he was in
immigration custody because the State transferred him to immigration custody.
The defendant concludes that the State has failed to bring the matter to trial within
the one-year time limitation for misdemeanors as required by La. C.Cr.P. art. 578,
entitling him to an absolute dismissal. The defendant argues that the State cannot
meet its heavy burden of showing an interruption of the time limitations because
the State did not exercise due diligence in securing his presence. Citing Barker v.
Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and State v. Reaves,
376 So.2d 136 (La. 1979), the defendant further argues that his constitutional right
to a speedy trial entitles him to a dismissal of the charges.
At the hearing on the defendant’s motion to quash, the State argued that La.
C.Cr.P. art. 579 provides that the period of time limitations shall be interrupted if
the appearance bonds’ date being issued after the traffic ticket, and the docket ledger does not list the defendant’s
date of arraignment as June 27, 2017.
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the defendant fails to appear at any proceeding pursuant to proof of actual notice
which appears in the record. The State reiterated that on March 29, 2017, the
defendant signed a bond and agreed to appear in court on his arraignment date.
The State argued that it had no affirmative duty to search for the defendant who
failed to appear after notice pursuant to State v. Romar, 07-2140 (La. 7/1/08), 985
So.2d 722, and State v. Williams, 11-1231 (La. App. 4 Cir. 5/23/12), 95 So.3d 554,
writ denied, 12-1447 (La. 1/18/13), 107 So.3d 623. The State also highlighted that
the court’s record has no indication that the defendant was placed in the State’s
custody.
The defense introduced a Department of Homeland Security US
Immigration and Customs Enforcement (ICE), Voluntary Departure and
Verification of the Departure form and argued that the State was aware that the
defendant was in custody because when he was arrested in March of 2017, an ICE
hold was placed on him. The defendant contended that when he signed the bond
orders, he was released to “Immigration,” not released on bond. The defendant
asserted that on the dates of his arraignment, June 26 and June 27, 2017, he was at
an immigration detention in Chalmette. The defense argued that the State did not
“writ him to be here in Court,” and the State took no further action to try to
prosecute this matter in more than a year. Pursuant to La. C.Cr.P. art. 578, the
defense requested that the charges “ be quashed.” The defendant was deported and
in Honduras for five years, but is now back in the United States on parole. The
court granted the motion to quash without providing reasons.
In this writ application, the State argues that prescription was interrupted on
June 27, 2017, when the defendant failed to appear pursuant to actual notice on the
defendant’s appearance bonds. The State contends that the attachment was
satisfied on February 1, 2023, when the defendant’s motion to recall the
attachment was filed. Therefore, the State concludes that prescription commenced
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to run anew on February 1, 2023, and the one-year prescriptive period for the
defendant’s misdemeanors has not elapsed. The State asserts that even if the
defendant was “locatable” on June 27, 2017, the State had no duty to take steps to
locate the defendant pursuant to La. C.Cr.P. art. 579(C). The State also highlights
that the court’s record does not contain the notice requirements from the defendant
under La. C.Cr.P. art. 579(C)(1). The State also responds to the defendant’s
assertion in his motion to quash that his right to a speedy trial was violated under
Barker v. Wingo, supra, asserting that the delay in the defendant’s case was caused
by the defendant who voluntarily left the United States when he was facing
deportation.
La. C.Cr.P. art. 578(A)(3) provides that no trial shall be commenced nor any
bail obligation be enforceable “in misdemeanor cases after one year from the date
of institution of the prosecution.” The date of institution of prosecution is the date
when the indictment is returned or the bill of information is filed. La. C.Cr.P. art.
934(7); State v. Smith, 07-959 (La. App. 5 Cir. 3/11/08), 982 So.2d 831, 834.
Louisiana law allows for the interruption of time limitations. La. C.Cr.P. art.
579 provides:
A. The period of limitation established by Article 578 shall be
interrupted if:
(1) The defendant at any time, with the purpose to avoid detection,
apprehension, or prosecution, flees from the state, is outside the
state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his
presence for trial cannot be obtained by legal process, or for any
other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual
notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall
commence to run anew from the date the cause of interruption no
longer exists.
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C. If the defendant fails to appear in court pursuant to any provision
of this Article and the defendant is subsequently arrested, the
periods of limitations established by Article 578 of this Code shall
not commence to run anew until the defendant appears in person in
open court where the case on the original charge is pending, or the
district attorney prosecuting the original charge has notice of the
defendant’s custodial location. For purposes of this Paragraph,
“notice” shall mean either of the following:
(1) Filing in the court record by either the defendant or his counsel
advising the court of his incarceration with a copy provided to the
district attorney and certification of notice provided to the district
attorney.
(2) Following the seventy-two hour hearing provided by Article 230.1
of this Code, actual notice of arrest is provided to the district
attorney and filed in the record of the proceeding of which the
warrant against the defendant was issued.
In accordance with La. C.Cr.P. art. 532(7), a motion to quash is the proper
procedural vehicle for claiming an untimely commencement of trial. La. C.Cr.P.
art. 581 provides that upon expiration of the time limitation, the court shall, on
motion of the defendant, dismiss the indictment, and there shall be no further
prosecution against the defendant for that criminal conduct. Once a defendant
shows that the State has failed to commence trial within the time periods mandated
by La. C.Cr.P. art. 578, the State bears a heavy burden to demonstrate that either an
interruption or a suspension of the time limit tolled prescription. State v.
Driever, 347 So.2d 1132, 1133 (La. 1977); State v. Otkins-Victor, 15-340 (La.
App. 5 Cir. 5/26/16), 193 So.3d 479, 530, writ denied sub nom. State ex rel.
Otkins-Victor v. State, 16-1495 (La. 10/15/18), 253 So.3d 1294. A trial court’s
ruling on a motion to quash should not be reversed in the absence of a clear abuse
of the trial court’s discretion. State v. Brooks, 16-345 (La. App. 5 Cir. 12/28/16),
210 So.3d 514, 518.
In this case, the State instituted prosecution on May 8, 2017, by the filing of
the bill of information. Pursuant to La. C.Cr.P. art. 578(A)(3), trial on the
misdemeanors should have begun on or before May 8, 2018. The docket ledgers
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show that the defendant failed to appear at his arraignment on June 27, 2017,
pursuant to actual notice, proof of which appears on the defendant’s appearance
bonds. In addition, the defendant admits that he voluntarily departed the United
States on August 24, 2017. On February 1, 2023, the defendant filed a motion to
quash, highlighting that the State did not commence trial within the one-year time
limitation for misdemeanors. He argued that the time period was not interrupted
by actions on behalf of the defendant, and the State failed to meet its heavy burden
by not “exercising diligence in securing the presence of the defendant in
connection with these proceedings.”
However, La. C.Cr.P. art. 579(A)(3) “does not impose on the State the
affirmative duty to search for a defendant who has failed to appear for trial after
receiving actual notice.” Romar, 985 So.2d at 726.
Once the accused shows that the State has failed to bring him to
trial within the time period specified by La. C.Cr.P. art. 578, the State
bears a heavy burden of demonstrating that either an interruption or a
suspension tolled the statute of limitations… the State can meet this
burden by showing that the statute of limitations was interrupted by
defendant’s failure ‘to appear at any proceeding pursuant to actual
notice, proof of which appears in the record.’
State v. Schmidt, 21-491 (La. 1/28/22), 333 So.3d 411, 413.
Our review of this writ application and the defendant’s opposition to the writ
application indicates that the State met its burden of proving that the one-year time
limitation was interrupted under La. C.Cr.P. art. 579(A)(3), by showing that the
defendant failed to appear at his arraignment on June 27, 2017, pursuant to actual
notice, proof of which appears in the record. The record reveals that defendant
received actual notice by accepting and signing his appearance bonds, which
contained his arraignment date of June 27, 2017. Furthermore, the defendant
argues that the State took no further action to prosecute him, yet he admits that he
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voluntarily departed the United States on August 24, 2017, and remained outside
of the United States for five years.
For the foregoing reasons, this writ application is granted and the May 8,
2017 indictment is reinstated.
Gretna, Louisiana, this 13th day of September, 2023.
JJM
SMC
MEJ
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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
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL 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
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Darren A. Allemand (Relator) Thomas J. Butler (Relator)
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Attorney at Law John H. Raborn (Relator)
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Gretna, LA 70053
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