State of Louisiana Versus Wendell L. Lachney ( 2023 )

STATE OF LOUISIANA NO. 23-KA-79
VERSUS FIFTH CIRCUIT
WENDELL L. LACHNEY COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 21-6880, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING
October 31, 2023
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Stephen J. Windhorst
MOTION TO DISMISS GRANTED;
APPEAL DISMISSED WITH PREJUDICE
SJW
SMC
MEJ
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Juliet L. Clark
Thomas J. Butler
COUNSEL FOR DEFENDANT/APPELLANT,
WENDELL L. LACHNEY
Frank G. DeSalvo
Shannon R. Bourgeois
WINDHORST, J.
Appellant/defendant, Wendell L. Lachney, appeals his misdemeanor
convictions and sentences. For the reasons stated herein, we grant the State’s motion
to dismiss and dismiss defendant’s appeal.
PROCEDURAL HISTORY
On December 29, 2021, the Jefferson Parish District Attorney’s Office filed a
bill of information charging defendant, Wendell L. Lachney, with reckless operation
of a vehicle in violation of La. R.S. 14:99 (count one), possession of drug
paraphernalia in violation of La. R.S. 40:1023 (count two), possession of marijuana
“weighing 14.1 grams to 2.4 pounds” in violation of La. R.S. 40:966 C (count three),
possession of an open alcoholic beverage in a vehicle in violation of La. R.S. 32:300
(count four), and failure to use a safety belt in violation of La. R.S. 32:295.1 (count
five). Defendant was arraigned and pled not guilty.
On January 13, 2022, the State filed a superseding bill of information,
amending count three to possession of marijuana fourteen grams or less in violation
of La. R.S. 40:966 C. Defendant was re-arraigned and pled not guilty. On
September 6, 2022, the superseding bill of information was amended to reflect that
defendant was born on “01/01/1963” instead of “10/01/1963.”1
On September 20, 2022, defendant withdrew his pleas of not guilty and pled
guilty as charged. Defendant waived sentencing delays and victim impact
statements were presented. The trial court sentenced defendant to ninety days in the
parish prison on count one; fifteen days in the parish prison on count two; imposed
a hundred dollar fine each on counts three and four; and imposed a fifty-dollar fine
on count five. The court furthered ordered all of the sentences to run concurrent
with each other and with the sentences in district court case number 21-5943
1 On the same day, defendant filed a sentencing memorandum, requesting the trial court to impose a lenient
sentence.
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(defendant’s felony case).2 The trial court stated, “Again, the Court will again make
the finding that defendant is indigent based upon his period and length of
incarceration and, as such, suspend any fines and court costs[.]” 3
On September 21, 2022, in defendant’s felony case (district court case number
21-5943), defendant filed an Objection to Sentence, Motion to Reconsider Sentence
and Request for Hearing, which the trial court denied. On November 10, 2022,
defendant filed a Motion to Reconsider Denial of Motion to Reconsider Sentence,
in his felony case, and it was denied by the trial court. On November 15, 2022,
defendant filed a motion for appeal, which included the district court case number
in the instant misdemeanor case (21-6880) and the district court case number for the
felony case (21-5943). The motion for appeal stated that defendant intended to
“appeal both the judgment and sentence of this Honorable Court imposed in the
instant matter.” This appeal followed.
Defendant filed identical briefs in this case and in the companion case on
appeal as to his felony case, only challenging his sentence as to count one in his
felony case. Defendant did not file an appellant brief challenging his misdemeanor
convictions and sentences in this case.
Subsequently, the State filed a motion to dismiss defendant’s appeal in the
instant case. In the motion, the State contends that this appeal should be dismissed
because defendant filed an appellant brief in this misdemeanor case identical to the
brief in the felony appeal (23-KA-78), and the sole assignment of error herein
addresses only the felony sentence given in the felony case. The State asserts that
2 During the same proceeding, defendant pled guilty to felony charges of vehicular homicide of A.D., while
under the influence of alcohol with a BAC of 0.20% or more and other drugs in violation of La. R.S. 14:32.1
(count one), and first degree negligent injuring upon Sarah Douglas, while under the influence of alcohol
with a BAC of 0.20% or more and other drugs in violation of La. R.S. 14:39.2 (count two), in district court
case number 21-5943. The appeal relating to defendant’s felony convictions is before this court in
companion case number 23-KA-78.
3 The original sentencing minute entry from September 20, 2022, was corrected by a Nunc Pro Tunc minute
entry on September 22, 2022, stating, “all fines, court costs, & fees are suspended, defendant to complete
any recommended treatment.”
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the proper procedure for seeking review of a misdemeanor conviction not triable by
a jury is by a writ application seeking this court’s supervisory jurisdiction. The State
contends that in the instant appeal, defendant’s appellant brief did not assign any
error as to his misdemeanor convictions and sentences or with any ruling in this case.
The State also avers that defendant did not file a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles,
96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), and that defendant did not seek
an errors patent review concerning the misdemeanor convictions and sentences in
this case. Furthermore, the State contends that because defendant’s only assignment
of error raised in his appellant brief pertains to his sentence on count one in his felony
case, which is raised in 23-KA-78, conversion of this appeal to a writ would serve
no purpose. Accordingly, the State requests this court to dismiss defendant’s appeal
in this case. Defendant did not file an opposition to the motion to dismiss.
FACTS
Because defendant pled guilty, the underlying facts were not fully developed
at a trial. Nevertheless, the amended superseding bill of information alleges that on
count one defendant “violated La. R.S. 14:99 in that he did willfully and unlawfully
operate a motor vehicle in a reckless manner;” on count two, defendant “violated La.
R.S. 40:1023 in that he did knowingly and intentionally possess drug paraphernalia
to wit: a glass pipe and wood pipe;” on count three, defendant violated “La. R.S.
40:966 C in that he did knowingly or intentionally possess a controlled dangerous
substance, to wit: Marijuana weighing 14 grams or less;” on count four, defendant
“violated La. R.S. 32:300 by willfully and unlawfully possessing an open alcoholic
beverage in a vehicle;” and on count five, defendant “violated La. R.S. 32:295.1 by
knowingly and intentionally failing to properly fasten a safety belt about his person
while the motor vehicle was in motion[.]”
23-KA-79 3
The State also provided the following factual basis for the guilty pleas:
Your Honor, if the State would have gone forward in case Number
21-6880, the State would have proven beyond a reasonable doubt the
defendant, Wendell L. Lachney, on or about October 22nd, 2021, in
Jefferson Parish violated Louisiana Revised Statute 14:99 in that he did
willfully and unlawfully operate a motor vehicle in a reckless manner.
As to Count 2, the State would have proven beyond a reasonable
doubt that defendant, Wendell L. Lachney, on or about October 22nd,
2021, in Jefferson Parish, violated Louisiana Revised Statute 40:1023
in that he did knowingly or intentionally possess drug paraphernalia, to
wit, a glass pipe and wood pipe.
As to Count 3, the State would have proven beyond a reasonable
[sic] the defendant, Wendell L. Lachney, on October 22nd, 2021, in
Jefferson Parish, violated Louisiana Revised Statute 40:966(C) in that
he did knowingly or intentionally possess a controlled dangerous
substance, to wit, marijuana weighing 14 grams or less.
As to Count 4, the State would have proven beyond a reasonable
doubt that the defendant, Wendell L. Lachney, on or about October
22nd, 2021, in Jefferson Parish, violated Louisiana Revised Statute
32:300 by willfully and unlawfully possessing an open alcoholic
beverage in a vehicle.
As to count 5, the State would have proven beyond a reasonable
doubt the defendant, Wendell L. Lachney, on or about October 22nd,
2021, in Jefferson Parish, violated Louisiana Revised Statute 32:295.1
by knowingly and intentionally failing to operate or properly fasten a
seat belt about his person while the motor vehicle was in motion.
JURISDICTIONAL ISSUE and MOTION TO DISMISS
In criminal matters, this court’s appellate jurisdiction extends only to cases
that are triable by a jury. State v. Carroll, 16-599 (La. App. 5 Cir. 02/08/17), 213
So.3d 486, 488 n.1; State v. Chess, 00-164 (La. App. 5 Cir. 06/27/00), 762 So.2d
1286, 1287 (citing La. Const. of 1974, art. 5 § 10; La. C.Cr.P. art. 912.1). Unless
the punishment that may be imposed exceeds six months imprisonment, a
misdemeanor is not triable by a jury. Chess, supra (citing La. Const. of 1974, art. 1
§ 17; La. C.Cr.P. art. 779).4
4 La. C.Cr.P. art. 779 A provides: “A defendant charged with a misdemeanor in which the punishment, as
set forth in the statute defining the offense, may be a fine in excess of one thousand dollars or imprisonment
for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict.”
23-KA-79 4
When misdemeanor offenses are charged by separate bills of information and
the aggregate penalty of the offenses exceeds six months imprisonment or a fine of
one thousand dollars, the defendant is entitled to a jury trial. State v. Armant, 02-
907 (La. App. 5 Cir. 01/28/03), 839 So.2d 271, 279 (citing State v. Hornung, 620
So.2d 816, 817 (La. 1993) (per curiam)). However, whenever two or more
misdemeanors are joined in accordance with Article 493 in the same indictment or
information, the maximum aggregate penalty that may be imposed for the
misdemeanors shall not exceed imprisonment for more than six months or a fine of
more than one thousand dollars, or both. La. C.Cr.P. art. 493.1.5 Therefore, when
two or more misdemeanors are joined in a single bill of information, the case is not
triable by a jury. Chess, 762 So.2d at 1287-88 (citing Hornung, supra).
In the instant case, defendant was charged in a single bill of information with
five misdemeanors in district court case number 21-6880, for crimes alleged to have
occurred on or about October 22, 2021. Specifically, in the amended superseding
bill of information, defendant was charged with, and pled guilty to, reckless
operation of a vehicle in violation of La. R.S. 14:99 (count one), possession of drug
paraphernalia in violation of La. R.S. 40:1023 (count two), possession of marijuana
fourteen grams or less in violation of La. R.S. 40:966 C (count three), possession of
an open alcoholic beverage in a vehicle in violation of La. R.S. 32:300 (count four),
and failure to use a safety belt in violation of La. R.S. 32:295.1 (count five). Because
these misdemeanors were joined in a single bill of information, the maximum
aggregate penalty was limited to six months imprisonment or a fine of one thousand
dollars, or both, and defendant’s misdemeanor charges were not triable by a jury.
Consequently, the proper procedure for seeking review of these misdemeanor
5 La. C.Cr.P. art. 493.1 provides, “Whenever two or more misdemeanors are joined in accordance with
Article 493 in the same indictment or information, the maximum aggregate penalty that may be imposed for
the misdemeanors shall not exceed imprisonment for more than six months or a fine of more than one
thousand dollars, or both.”
23-KA-79 5
convictions is an application for writ of review directed to this court to exercise its
supervisory jurisdiction. See La. C.Cr.P. art. 912.1 C(1); State v. Trepagnier, 07-
749 c/w 07-750 (La. App. 5 Cir. 03/11/08), 982 So.2d 185, 188, writ denied, 08-784
(La. 10/24/08), 992 So.2d 103.
Pursuant to this court’s En Banc policy regarding jurisdictional matters
adopted on May 29, 2014, “if the majority of the panel determined that the matter
was not appealable, the matter shall be dismissed, allowing the parties time to file a
writ application.” However, this court stated that dismissal may not be warranted in
“exceptional cases, especially when there are misdemeanor and felony convictions
intertwined to the point that the interests of justice are better served by considering
the matters together.” See State v. Brown, 17-420 (La. App. 5 Cir. 02/21/18), 239
So.3d 455, 458.
In the instant case, defendant’s misdemeanor and felony offenses concern the
same facts. Thus, this would have been an exceptional case where the misdemeanor
and felony convictions are so intertwined to the point that the interest of justice may
be better served by considering the matters together. See State v. Blackwell, 18-118
(La. App. 5 Cir. 12/27/18), 263 So.3d 1234, 1239. However, due to the issues
discussed herein, there is nothing for this court to consider in the instant appeal.
First, we find defendant’s appeal of his misdemeanor guilty pleas is untimely.
A defendant seeking this court’s supervisory review of a misdemeanor conviction is
required to file a notice of intent and seek a return date. La. U.R.C.A., Rule 4-2
provides:
The party, or counsel of record, intending to apply to the Court of
Appeal for a writ shall give to the opposing parties or opposing counsel
of record, notice of such intention; notice simultaneously shall be given
to the judge whose ruling is at issue, by requesting a return date to be
set by the judge within the time period provided for in Rule 4-3.
23-KA-79 6
La. U.R.C.A., Rule 4-3 provides in pertinent part:
In criminal cases, unless the judge orders the ruling to be reduced to
writing, the return date shall not exceed 30 days from the date of the
ruling at issue. When the judge orders the ruling to be reduced to
writing in criminal cases, the return date shall not exceed 30 days from
the date the ruling is signed. In all cases, the judge shall set an explicit
return date; a Court of Appeal shall not infer a return date from the
record.
Upon proper showing, the trial court or the Court of Appeal may extend
the time for filing the application upon the filing of a motion for
extension of return date by the applicant, filed within the original or an
extended return date period. An application not filed in the Court of
Appeal within the time so fixed or extended shall not be considered, in
the absence of a showing that the delay in filing was not due to the
applicant’s fault. The application for writs shall contain documentation
of the return date and any extensions thereof; any application that does
not contain this documentation may not be considered by the Court of
Appeal.
Therefore, in a criminal case, for an application for a supervisory writ to be timely,
a notice of intention to apply for a supervisory writ must be filed in the trial court
within thirty days from the ruling at issue, except when the judge orders that the
ruling be reduced to writing, in which case the return date shall not exceed thirty
days from the date the ruling is signed. La. U.R.C.A., Rules 4-2 and 4-3; State v.
Bourg, 16-313 (La. App. 5 Cir. 06/29/16), 196 So.3d 737, 740.
In the instant case, on September 20, 2022, defendant pled guilty in his felony
and misdemeanor cases and he was sentenced on all counts. On November 15, 2022,
defendant filed a written motion for appeal, which included both his felony and
misdemeanor district court case numbers. In the motion, defendant noticed his
intention to “appeal both the judgment and sentence.” This court has previously
construed a motion for appeal as a notice of intent to apply for writs where the
offense is not appealable. Bourg, 196 So.2d at 70-41 (citing State v. Donaldson, 13-
703 (La. App. 5 Cir. 11/19/13), 130 So.3d 394, 395).6 However, we find defendant’s
6 The nature of a pleading is determined by its substance and not its caption. State v. Wilson, 16-246 (La.
App. 5 Cir. 12/07/16), 207 So.3d 1196, 1198. See also State v. Webb, 15-962 (La. 09/25/15), 175 So.3d
954, 955 (“Courts should look through the caption of pleadings in order to ascertain their substance and to
do substantial justice to the parties”) (quoting Smith v. Cajun Insulation, 392 So.2d 398, 402 n.2 (La. 1980)).
23-KA-79 7
“motion for appeal” is untimely in this case even if construed as a notice of intent
because it was filed more than thirty days after September 20, 2022.7
Further, we find defendant’s appeal of his misdemeanor convictions and
sentences in this case is deemed abandoned because it briefed no issue related to this
case. See State v. Gatson, 21-156, 21-157 (La. App. 5 Cir. 12/29/21), 334 So.3d
1021, 1027 fn.1.
In Gatson, defendant sought review of his felony convictions and sentences in
appeal number 21-KA-156 and review of his related misdemeanor convictions and
sentences in companion case number 21-KA-157. Because the defendant’s felony
convictions and sentences in 21-KA-156 were so intertwined with the misdemeanor
convictions in 21-KA-157, this court found the interests of justice and judicial
economy dictated that the matters be considered together and consolidated the cases
sua sponte. However, this court held that since defendant merely adopted his brief
from 21-KA-156 (appeal of felony convictions and sentences) in 21-KA-157 (appeal
of misdemeanor convictions and sentences) and defendant did not brief any
assignments of error regarding the misdemeanor charges, defendant’s appeal in 21-
KA-157 was deemed abandoned. Id., citing La. U.R.C.A., Rules 1-3 and 2-12.4.8
Here, defendant filed identical briefs in this case 23-KA-79 (misdemeanor
case) and in 23-KA-78 (felony case). Defendant’s sole assignment of error
challenges his sentence as constitutionally excessive on count one (vehicular
homicide of A.D.) in his felony case (23-KA-78). That sentence is not before this
court in the instant matter (23-KA-79), which concerns defendant’s misdemeanor
7 The record reflects that on September 21, 2022, defendant filed a written motion to reconsider as to his
felony convictions only in district court case number 21-5943, and the court denied this motion on October
26, 2022.
8 See La. U.R.C.A., Rule 1-3, which provides, in pertinent part:
The Courts of Appeal will review only issues which were submitted to the trial court and that are contained
in specifications or assignments of error, unless the interest of justice clearly requires otherwise.
See also La. U.R.C.A., Rule 2-12.4, which provides in pertinent part:
All assignments of error and issues for review shall be briefed. The court may deem as abandoned any
assignment of error or issue for review which has not been briefed.
23-KA-79 8
convictions and sentences. Defendant did not raise any additional assignments of
error or specifically address the misdemeanor convictions and sentences in this
matter. Consequently, we find that defendant’s appellant brief is not sufficiently
tailored to this matter. Accordingly, we find defendant’s appeal as to his
misdemeanor convictions and sentences is deemed to be abandoned. See Gatson;
La. U.R.C.A., Rules 1-3 and 2-12.4.
DECREE
Based on the foregoing, we grant the State’s motion to dismiss, and we
dismiss the instant misdemeanor appeal with prejudice.
MOTION TO DISMISS GRANTED;
APPEAL DISMISSED WITH PREJUDICE
23-KA-79 9
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
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
OCTOBER 31, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-KA-79
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
JULIET L. CLARK (APPELLEE) THOMAS J. BUTLER (APPELLEE) FRANK G. DESALVO (APPELLANT)
MAILED
SHANNON R. BOURGEOIS (APPELLANT) HONORABLE PAUL D. CONNICK, JR.
ATTORNEY AT LAW (APPELLEE)
739 BARONNE STREET DISTRICT ATTORNEY
NEW ORLEANS, LA 70113 TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053