State Of Louisiana v. Durelle Cornelius Jones ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2020 KA 0451
STATE OF LOUISIANA
VERSUS
DURELLE CORNELIUS JONES
DEC 0 2 2020
Judgment rendered,
On Appeal from the
Twenty -First Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
No. 1201973, Div. " A"
The Honorable Jeffrey S. Johnson, Judge Presiding
Scott M. Perrilloux Attorneys for Plaintiff/Appellee
District Attorney State of Louisiana
Zachary Daniels
Assistant District Attorney
Livingston, Louisiana
Patricia Parker Amos
Assistant District Attorney
Amite, Louisiana
Lieu T. Vo Clark Attorney for Defendant/Appellant
Mandeville, Louisiana Durelle Cornelius Jones
BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ.
HOLDRIDGE, J.
The defendant, Durelle Cornelius Jones, was charged by grand jury
indictment with two counts of armed robbery with the use of a firearm ( counts I
and II), violations of La. R.S. 14: 64 and La. R.S. 14: 64. 3; two counts of second
degree kidnapping ( counts III and IV), violations of La. R.S. 14: 44. 1( A)(5);
aggravated rape' ( count V), a violation of La. R.S. 14: 42; and two counts of
attempted first degree murder ( counts VI and VII), violations of La. R.S. 14: 27 and
La. R.S. 14: 30( A)(2). He initially pled not guilty on all counts. Thereafter, he pled
not guilty and not guilty by reason of insanity on all counts. Count VII was
dismissed prior to trial.
Following a jury trial, the defendant was found guilty as charged on counts I
VI by a non -unanimous jury by a vote of ten of twelve jurors. 2 The defendant
was sentenced to ninety-nine years of imprisonment at hard labor without benefit
of probation, parole, or suspension of sentence on each of counts I and II. He was
sentenced to forty years of imprisonment at hard labor without benefit of
probation, parole, or suspension of sentence on each of counts III and IV. On
count V, he was sentenced to serve the remainder of his natural life at hard labor
without benefit of probation, parole, or suspension of sentence. On count VI, he
was sentenced to fifty years of imprisonment at hard labor without benefit of
probation, parole, or suspension of sentence. The district court ordered that all of
the sentences would run concurrently with one another.
1 2015 Louisiana Acts Numbers 184, § 1 and 256, § 1 renamed the offense of aggravated rape as
first degree rape.
2 The minutes indicate that, on count IV, the defendant was found guilty of " Second Degree
batter." The transcript, however, reflects that, on count IV, the defendant was found guilty of
second degree kidnapping as charged. Where there is a discrepancy between the minutes and the
transcript, the transcript prevails.
State v. Shurley, 2014- 0850 ( La. App. 1 Cir. 6/ 5/ 15), 2015
WL 3613186, * 1 n. 1, writ denied, 2015- 1246 ( La. 6/ 17/ 16), 192 So. 3d 775.
2
The defendant appeals, and in his sole assignment of error, he challenges his
conviction by a non -unanimous jury verdict. For the following reasons, we vacate
the conviction and sentence and remand to the district court.
CONSTITUTIONALITY OF NON -UNANIMOUS VERDICT
In his sole assignment of error, the defendant contends he was convicted by
only ten of twelve jurors on counts I - VI, and thus, the verdicts violated his rights to
a jury trial, due process, and equal protection under the Sixth and Fourteenth
Amendments to the United States Constitution as recognized by Ramos v.
Louisiana, 590 U.S. _, 140 S. Ct. 1390, 206 L.Ed.2d 583 ( 2020). He further argues
that the error is patent on the face of the record.
The State argues Ramos has no application in this matter because " appellant' s
conviction became final in 2016." The State relies upon State v. Patterson, 572
So.2d 1144, 1148 ( La. App. 1 Cir. 1990), writ denied, 577 So. 2d 11 ( La. 1991), in so
arguing.
In Patterson, the defendant filed an out -of t-ime appeal seeking the benefit
of the United States Supreme Court' s decision in Batson v. Kentucky, 476 U.S.
79, 106 S. Ct. 1712, 90 L.Ed.2d 69 ( 1986), which was decided prior to the
3
defendant being granted the out -of t-ime appeal. This court found the defendant
failed to file his motion for appeal within the time delay provided in La. C. Cr.P.
art. 914, and thus, his conviction and sentence " became final at the moment that
time period expired." Patterson, 572 So. 2d at 1148. This court therefore held the
evidentiary standard pronounced in Swain v. Alabama, 380 U.S. 202, 85 S. Ct.
3 Batson changed the evidentiary burden placed on a defendant who claims that he has been denied
equal protection through the State' s exercise of peremptory challenges to exclude members of his
race. Batson v. Kentucky, 476 U. S. 79, 96- 98, 106 S. Ct. 1712, 1723- 24, 90 L.Ed.2d 69 ( 1986).
The holding in Batson was retroactive and to be applied to all cases pending on direct review or not
yet final at the time Batson was decided. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct.
708, 716, 93 L.Ed.2d 649 ( 1987). See also State v. Patterson, 572 So.2d 1144, 1147- 48 ( La. App.
1 Cir. 1990), writ denied, 577 So. 2d 11 ( La. 1991).
3
824, 13 L.Ed.2d 759 ( 1965), which standard governed prior to Batson, applied in
the defendant' s case because:
t]he circumstance of defendant' s filing on May 16, 1989, ( more than
ten years after his conviction and sentence became final) an application
for post conviction relief in the district court requesting an out -of t-ime
appeal which was granted by the court on October 30, 1989, ( more than
eleven years after the finality of defendant' s conviction and sentence)
does not in any way alter the fact that the conviction and sentence
became final prior to the decision in Batson.
Patterson, 572 So. 2d at 1148.
Herein, the order allowing the defendant an out -of t-ime appeal was signed on
August 13, 2019. The order notes that the defendant previously filed a motion for
appeal with designation of the record on June 23, 2016, and the motion for appeal
was granted on June 27, 2016. Unlike the Patterson case, the defendant' s original
motion for appeal was timely pursuant to La. C. Cr.P. art. 914(B)( 2), which provides,
in pertinent part, that a motion for appeal must be " made no later than:... ( 2) [ t]hirty
days from the ruling on a motion to reconsider sentence filed pursuant to Article
881. 1...." The defendant was sentenced on June 14, 2016; he timely moved for
reconsideration of the sentence on June 23, 2016; and the motion for reconsideration
was denied. See La. C. Cr.P. art. 881. 1( A)( 1). The defendant' s motion for appeal
was timely under La. C. Cr.P. art. 914(B)( 2).
The out -of time
- appeal in this matter was granted " due to the Motion for
Appeal previously filed by Defendant being inadvertently passed over." The district
court gave no reasons as to why the defendant' s motion for appeal was " passed
over." However, the failure of the district court, the minute clerk, or the clerk of
court to perform their functions in connection with the filing of a timely criminal
appeal does not affect the validity of the appeal. See La. C.Cr.P. arts. 915( A),
915( B), & 915. 1( B). See also State v. Ross, 2006- 1328 ( La. App. 4 Cir. 3/ 14/ 07),
955 So. 2d 167, 170, writ denied, 2007- 1027 ( La. 5/ 9/ 08), 980 So.2d 681; State v.
CI
Ambeau, 2005- 0711 ( La. App. 4 Cir. 2/ 15/ 06), 930 So. 2d 54, 60 ( When delays were
largely attributable to the criminal justice system, the State' s motion to dismiss the
defendant' s appeal as untimely was denied because " substantial justice requires our
disposition of this appeal as timely."). Accordingly, as the record reveals that the
defendant moved for and was granted a timely appeal, the State' s assertion that the
defendant' s conviction was final in 2016, premised on the belief that the defendant' s
appeal is an out -of t-ime appeal, is without merit.4
The State raises an alternative argument that it " seeks to use the current
response as a vehicle for objection to the [ district] court procedure." The State asks
that the " matter should be remanded for further proceedings and the [ district] court
should treat the stand- alone motion as an application for post -conviction relief "5
The fact that the defendant was initially granted a timely appeal likewise refutes
the State' s alternative argument objecting to the district court' s action of allowing
the defendant an out -of t-ime appeal without notice or an evidentiary hearing to
prove the defendant' s entitlement to an out -of t-ime appeal. Moreover, we note that
on August 13, 2019, notice of the out -of time
- appeal was sent to the State. The State
does not allege, and the record does not indicate, that it objected in the district court
to the granting of the out -of t-ime appeal. The State' s arguments are without merit.
Returning to the merits of the defendant' s appeal, as previously stated, on
counts I - VI, the defendant was convicted by a vote of ten of twelve jurors.
4 However, even if this was an out -of t-ime appeal, the jurisprudence holds that the state criminal
judgment does not become final until the out -of t-ime appeal is resolved. See State v. Fournier,
395 So. 2d 749, 750 ( La. 1981); see also Johnson v. Cain, 68 F. Supp. 3d 593, 603 ( E.D. La. 2014)
w]hen a petitioner is granted an out -of time
- appeal, his state criminal judgment is not final until
the date on which the state decision on an out -of time
- appeal became final by the conclusion of
direct review or the expiration of the time for seeking such review. See Jimenez v. Quarterman,
555 U.S. 113, 121, 129 S. Ct. 681, [ 686,] 172 L.Ed.2d 475 ( 2009).").
5 Although the State argues that the defendant filed a " motion" for an out -of t-ime appeal, no
such motion appears in the record. Notably, the district court in its order simply states that it
hereby orders that Defendant be allowed to lodge an out of time appeal" ( emphasis added), but
the order does not refer to any motion filed by the defendant.
R
In the recent decision of Ramos, 140 S. Ct. at 1397, the United States Supreme
Court overruled Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L.Ed.2d 1841972), and held that the right to a jury trial under the Sixth Amendment of the
United States Constitution, as incorporated by the Fourteenth Amendment of the
United States Constitution, requires a unanimous verdict to convict a defendant of a
serious offense in both federal and state courts. The Ramos Court further noted that
its ruling applied to those defendants convicted of felonies by non -unanimous
verdicts whose cases are still pending on direct appeal. 6 Ramos, 140 S. Ct. at 1406.
Thus, where the defendant' s conviction was not final when Ramos was decided, the
holding of Ramos applies. State v. Bueso, 2019- 01675 ( La. 6/ 22/ 20), 297 So. 3d 719per curiam) ( citin Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93
L.Ed.2d 649 ( 1987)).
Accordingly, this assignment of error has merit. The convictions and
sentences on counts I - VI are vacated, and this case is remanded to the district court
for further proceedings.
CONVICTIONS AND SENTENCES VACATED; REMANDED.
6 In Crehan v. Louisiana, U. S. , 140 S. Ct. 2713, 206 L.Ed. 2d 850 ( 2020), Justice Alito
concurred in the judgment with the understanding that in cases in which the United States
Supreme Court grants, vacates, and remands in light of Ramos, " the [ United States Supreme
Court] is not deciding or expressing a view on whether the question was properly raised below
but is instead leaving that question to be decided on remand." In Crehan, this court had
previously noted the defendant made " a pro forma challenge to the constitutionality of his non -
unanimous guilty verdict." State v. Crehan, 2018- 0746 ( La. App. 1 Cir. 11/ 5/ 18), 2018 WL
5785479, * 9, writ denied, 2018- 2024 ( La. 4/ 15/ 19), 267 So. 3d 1. 124, cert. granted and jmt.
vacated, 140 S. Ct. 2713. We are aware that a constitutional challenge may not be considered by
an appellate court unless it was properly pleaded and raised in the district court below. Vallo v.
Gayle Oil Co., Inc., 94- 1238 ( La. 11/ 30/ 94), 646 So. 2d 859, 864- 65. Further, while there is no
single procedure for attacking the constitutionality of a statute, it has long been held that the
unconstitutionality of a statute must be specially pleaded and the grounds for the claim
particularized. First, a party must raise the unconstitutionality in the district court; second, the
unconstitutionality of a statute must be specially pleaded; and third, the grounds outlining the
basis of unconstitutionality must be particularized. State v. Hatton, 2007- 2377 ( La. 7/ 1/ 08), 985
So. 2d 709, 719.
The defendant failed to follow the proper procedure for preserving his challenge to the
non -unanimous verdicts in this matter. However, the error is reviewable as patent error. See
State v. Boyd, 2019- 00953 ( La. 6/ 3/ 20), 296 So. 3d 1024 ( per curiam). Further, the transcript and
minutes reflect that only ten of twelve jurors concurred in the verdict.. Accordingly, this claim is
properly before this court.
6