DocketNumber： 2009-KA-0834, 2009-KA-0836
Citation Numbers： 35 So. 3d 404
Judges： Charles, David, Gorbaty, Jones, Kirby, Michael
Filed Date： 3/24/2010
Status： Precedential
Modified Date： 8/23/2023
Court of Appeal of Louisiana, Fourth Circuit.
*405 Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee.
Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
(Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
MICHAEL E. KIRBY, Judge.
Appellant appeals his convictions and sentences on charges of simple criminal damage to property and simple burglary in the Criminal District Court for Orleans Parish. He asserts his statutory and constitutional rights to a speedy trial were violated. Because we find appellant has not shown he suffered any actual prejudice from the state's failure to timely bring him to court we affirm his convictions and sentences.
The State charged Johnny Kitchens on July 27, 2007 with one count of simple criminal damage to property valued between $500 and $50,000. He pled not guilty. On August 31, 2007, the State charged him with one count of simple burglary. The matters were reset several times due to the fact that Kitchens was incarcerated in St. Bernard Parish[1]. On January 9, 2009, Kitchens filed a motion to quash the charges against him. The court denied the motion. Kitchens then withdrew his prior pleas of not guilty and pled guilty as charged, reserving his right to appeal the denial of his motions to quash as per State v. Crosby, 338 So. 2d 584 (La. 1976).
The matters were reset several times for sentencing on defense motion, and on April 3, Kitchens moved to withdraw his guilty plea. The court denied the motion and sentenced Kitchens to serve two years at hard labor on the simple criminal damage charge and twelve years at hard labor on the simple burglary charge, to be served concurrently with all of his other charges.
Because appellant pled guilty in both cases, the facts leading to the charges are unknown. They are not necessary to a review of appellant's claims in his appeals.
A review of both records reveals no patent errors in the simple criminal damage case. However, in the simple burglary case we find that the record fails to show that appellant was arraigned in that case. The failure to arraign a defendant is waived if the defendant "enters upon trial without objecting thereto, and it shall be considered as if he had pleaded not guilty." C.Cr.P. art. 555. See State v. Foreman, XXXX-XXXX (La.App. 4 Cir. 4/29/09), 10 *406 So.3d 1238. Here, Kitchens did not go to trial; nonetheless, before pleading guilty, the court specifically noted that appellant withdrew his prior pleas of "not guilty". Thus, all of the parties were under the impression that he had formerly pled not guilty in both cases. Therefore, any error that may have occurred by the court's failure to arraign Kitchens in the simple burglary case was cured when he pled guilty to the bill of information.
There are no other patent errors.
By his sole assignment of error in both cases, appellant contends that the trial court erred by denying his motion to quash the charges in each case. In these appeals, he argues that both his statutory and constitutional rights to a speedy trial were violated by the delay in bringing him to trial.
The motions to quash filed in each case allege only that the appellant's constitutional right to speedy trial was violated. The transcript of January 9, 2009 reflects that defense counsel did not assert appellant's statutory right to a speedy trial. Therefore, the statutory claim raised in appellant's brief is not properly before this court. Even on the merits, this claim fails. The State had two years from the date it filed the bills of information to take appellant to trial. La.C.Cr.P. art. 578(2). Appellant filed his motions to quash within those two years, effectively suspending the time limitations La.C.Cr.P. art. 580. On the same day that the court denied his motions to quash, appellant pled guilty, reserving his right to seek review of the court's ruling. Therefore, appellant has no viable statutory claim, even had he asserted it in the trial court.
In State v. Scott, XXXX-XXXX, p. 5 (La.App. 4 Cir. 4/25/07), 958 So. 2d 725, 729, this court discussed the standard for evaluating a constitutional speedy trial claim:
The standard for analyzing a defendant's claim that his constitutional right to a speedy trial has been violated is the four factor test enunciated in Barker v. Wingo, 407 U.S. 514, 530, 531-32, 92 S. Ct. 2182, 2192-93, 33 L. Ed. 2d 101 (1972), which is as follows: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) the prejudice to the defendant. State v. Batiste, 05-1571, p. 7 (La.10/17/06), 939 So. 2d 1245, 1250. The circumstances of each individual case will determine the weight to be ascribed to the length of and the reason for the delay. "[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Id. (quoting Barker, 407 U.S. at 531, 92 S. Ct. at 2192).
The first of the Barker v. Wingo factors, the length of the delay, is the "triggering mechanism," so if the length of the delay is not "presumptively prejudicial," the court need not inquire into the remaining Barker factors. See State v. Scott, XXXX-XXXX (La. App. 4 Cir. 7/27/05), 913 So. 2d 843; State v. Santiago, XXXX-XXXX (La.App. 4 Cir. 7/23/03), 853 So. 2d 671. As noted in State v. Love, XXXX-XXXX, pp. 9-10 (La.5/23/03), 847 So. 2d 1198, 1206: "[b]ecause the complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court's discretion." See also State *407 v. Harris, XXXX-XXXX (La.App. 4 Cir. 9/10/03), 857 So. 2d 16.
In order to facilitate a review of the Barker factors, the chronology of the appellant's cases follows.
The minute entries from this point basically mirror those set forth above in the Simple Criminal Damage case. There are two minute entries, April 22, 2008 and May 19, 2008, which indicate that counsel was appointed and then withdrew. Also, there is a minute entry from June 23, 2008 which indicated that court was closed that day due the lack of air conditioning. The minute entry of April 3, 2009 noted that in this case the court sentenced Kitchens to serve twelve years at hard labor, to be served concurrently with any other sentence.
Considering the first factor in Barker, 407 U.S. 514, 530, 531-32, 92 S. Ct. 2182, 2192-93, 33 L. Ed. 2d 101 (1972), the appellant was incarcerated on the simple burglary charge since at least November 3, 2006, and on the criminal damage charge since at least May 29, 2007. He filed his motions to quash these charges on January 9, 2009, more than twenty-six months after his first arrest and over nineteen months after being held on the criminal damage charge. Similar time delays have been found to be presumptively prejudicial. See State v. Firshing, 624 So. 2d 921 (La.App. 4 Cir.1993) (seventeen-month delay was presumptively prejudicial); *410 State v. Leban, 611 So. 2d 165 (La.App. 4 Cir.1992) (sixteen-month delay was presumptively prejudicial). Because the time delays here have been deemed presumptively prejudicial in other cases, we will look to the other Barker factors.
With respect to the second factor, the chronology shows that almost all of the delays in this case were caused by the State's failure to have appellant transported to Orleans Parish from St. Bernard Parish, where he was incarcerated a large portion of the time. The minute entries indicate that the State was aware that appellant was incarcerated there as early as October 2007, and there are notations that the State filed many writs to get the appellant transported to Orleans Parish, but on most occasions he was not transported. The only continuances requested by the defense occurred after appellant pled guilty in each case, and were to continue sentencing. There were at least two instances where counsel was appointed and then withdrew, but in any event these occurred during the time period the State was unable to secure appellant's presence.
As to the third factor, the invocation of his right to a speedy trial, we note appellant filed a pro se motion for speedy trial in November 2007.
Turning now to the prejudice, if any, he suffered from the delay, the appellant merely noted in his motions that his ability to investigate the cases was diminished because of his incarceration. He does not specify what evidence he may have discovered or preserved had he been brought to court in a more timely manner; he admits that "the defense cannot say what it might have found had it canvassed the witnesses in the Spring of 2007." Indeed, considering that the burglary count was alleged to have been committed at a Lakeview school it is unlikely that there were many witnesses around to witness the crime. It must be noted, too, that the appellant was incarcerated in St. Bernard Parish during most of this time due to other charges there as well as federal charges. Even had the State been able to get him into court in Orleans Parish earlier than it did, he still would have been incarcerated on those charges.
Thus, the failure to bring appellant into court in these cases was not the only reason that he was not able to investigate his cases; his other state and federal charges kept him incarcerated in St. Bernard Parish. His allegation of prejudice is at best speculation that he lost exculpatory evidence. Because he was unable to show actual prejudice from the delay in bringing him to court, we cannot find that the trial court abused its discretion by denying his motions to quash the bills of information in these cases.
Because appellant failed to show actual prejudice from the State's failure to bring him to court, the trial court did not abuse its discretion by denying his motion to quash the bill of information in either case. Accordingly, we affirm appellant's convictions and sentences.
AFFIRMED.
[1] We take judicial notice that appellant filed a writ application with this Court, Louisiana v. Johnny Kitchens, 2006-K-0631 in which it was revealed he was arrested on the St. Bernard charges on September 8, 2005 and that he was released from that custody on May 11, 2006 pursuant to a La.C.Cr.P. art. 701(B) motion.
State v. Batiste , 939 So. 2d 1245 ( 2006 )
State v. Crosby , 338 So. 2d 584 ( 1976 )
State v. Santiago , 853 So. 2d 671 ( 2003 )
State v. Firshing , 624 So. 2d 921 ( 1993 )
State v. Leban , 611 So. 2d 165 ( 1992 )
State v. Love , 847 So. 2d 1198 ( 2003 )
State v. Scott , 913 So. 2d 843 ( 2005 )
State v. Harris , 857 So. 2d 16 ( 2003 )