State v. Barnes

• Decision Date: 27 March 2012
• Docket Number: No. 11–KA–80.,11–KA–80.
• Citation: 92 So.3d 9
• Parties: STATE of Louisiana v. Joseph BARNES.
• Court: Court of Appeal of Louisiana — District of US

92 So.3d 9

STATE of Louisiana
v.
Joseph BARNES.

No. 11–KA–80.

Court of Appeal of Louisiana,
Fifth Circuit.

Dec. 13, 2011.
Rehearing Granted Jan. 24, 2012.
Opinion on Rehearing March 27, 2012.

[92 So.3d 11]

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Appellate Counsel, Scott Schlegel, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.

Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, Martin E. Regan, Jr. Nisha Sandhu, Attorneys at Law, New Orleans, LA, for Appellant, Joseph Barnes.

Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.

SUSAN M. CHEHARDY, Judge.

[5 Cir. 2]On appeal, defendant challenges his convictions and sentences. For the following reasons, we vacate defendant's multiple offender adjudication and enhanced sentences and remand as follows for a ruling on defendant's motion for new trial.

Procedural history¹

On January 22, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant, Joseph Barnes, with one count of sexual battery in violation of La. R.S. 14:43.1. The State subsequently amended the bill of information, adding a second count of sexual battery, in violation of La. R.S. 14:43.1. Defendant was arraigned on each count and pled not guilty.

On October 14, 2010, a six-person jury found defendant guilty as charged on both counts. On October 22, 2010, defendant filed a motion for new trial and a motion for appeal.

On October 28, 2010, the trial judge sentenced defendant to ten years at hard labor without benefit of parole, probation, or suspension of sentence, on each count, concurrent. At sentencing, the trial court also informed defendant of the sex [5 Cir. 3]offender registration and notification requirements.

[92 So.3d 12]

At that hearing, the State filed a multiple bill of information alleging that relator was a fourth felony offender.

On November 4, 2010, the trial court found defendant to be a fourth felony offender, vacated his underlying sentences, and imposed a concurrent sentence of life imprisonment without benefit of probation or suspension of sentence on each count.² Defendant's motion for appeal was granted on December 1, 2010.

As a preliminary note, the record does not reflect that the trial court ruled on defendant's motion for new trial. Although neither the defendant nor the State raised the issue on appeal, it is noticeable on the face of the record and reviewable as a patent error. State v. Randolph,³409 So.2d 554 (La.1981) (per curiam)(on rehearing, 1982); State v. Christian, 05–635, pp. 3–4 (La.App. 5 Cir. 2/3/06), 924 So.2d 266, 267.

La.C.Cr.P. art. 853 provides that a motion for a new trial must be filed and disposed of before sentencing. In this case, the record reflects that defendant filed his motion for new trial on October 22, 2010 and the trial judge sentenced defendant on his underlying felonies on October 28, 2010. The record, however, does not reveal a ruling on defendant's motion for new trial.

Recently, in State v. Pettus, 10–742 (La.App. 5 Cir. 5/24/11), 66 So.3d 1192, this Court, which pretermitted discussion of the underlying facts and the defendant's assignments of error where an error patent required vacating a sentence and remand, explained the following:

Most recently, when faced with the lack of a ruling on defense motions for new trial and post verdict judgment of acquittal, this Court has returned to Randolph and, without addressing the merits of [5 Cir. 4]defendant's assignments of error, vacated the defendant's sentence and remanded for rulings on the motions, reserving to the defendant his right to appeal his conviction and sentence in the event of unfavorable rulings.

Pettus, 10–742 at 1, 66 So.3d at 1194 (citations omitted).

Therefore, in line with Randolph (on rehearing), Christian, and more recently, Pettus, we vacate defendant's multiple offender adjudication and sentences and remand this matter to the trial court for a ruling on defendant's motion for new trial. We specifically reserve defendant's right to appeal his convictions and sentences in the event that the ruling on his motion for new trial is adverse to him.

VACATED: REMANDED

ORDER

In its Application for Rehearing, the State of Louisiana represents that the appellate record was inaccurate with regard to the trial court's ruling on defendant's motion for new trial on October 25, 2010. Further, in support of its application, the State of Louisiana submits the trial court's per curiam comments that the digital record of the hearing on defendant's motion for new trial reflects a ruling.

[92 So.3d 13]

ACCORDINGLY, rehearing is granted.

Further, pursuant to La.C.Cr.P. art 916(2), we return this record to the Clerk of Court for the 24th Judicial District Court for correction of the record, as per the trial judge's per curiam, of the October 25, 2010 hearing on defendant's motion for new trial. The Clerk of the 24th Judicial District Court is instructed to comply with this Order or show good cause why it cannot comply within 7 days of the is Order.

Finally, after the corrected record is returned to this Court, we instruct the Clerk of this Court to set this matter for consideration on the next available docket.

ON REHEARING SUSAN M. CHEHARDY, Judge.

On appeal, defendant challenged his convictions and sentences. This Court vacated defendant's sentences as premature. The State sought rehearing, which we granted. On rehearing, we affirm defendant's convictions, multiple offender adjudication, and sentences.

Procedural history

As noted previously, on January 22, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant, Joseph Barnes, with one count of sexual battery in violation of La. R.S. 14:43.1. The State subsequently amended the bill of information, adding a second count of sexual battery, in violation of La. R.S. 14:43.1. Defendant pled not guilty to both counts.

On October 14, 2010, after trial, a six-person jury found defendant guilty as charged on both counts. On October 22, 2010, defendant filed a motion for new trial and a motion for appeal.

On October 28, 2010, the trial judge sentenced defendant to ten years at hard labor without benefit of parole, probation, or suspension of sentence, on each count, concurrent. At sentencing, the trial court also informed defendant of the sex offender registration and notification requirements. At that hearing, the State filed a multiple bill of information alleging that relator was a fourth felony offender.¹

On November 4, 2010, the trial court found defendant to be a fourth felony offender, vacated his underlying sentences, and imposed a concurrent sentence of life imprisonment without benefit of probation or suspension of sentence on each count. Defendant's motion for appeal was granted on December 1, 2010.

On December 13, 2011, this Court issued an opinion pretermitting discussion of the merits of defendant's assignments of error, vacating defendant's sentences, and remanding for a ruling on the motion after discovering that the appellate record lacked a ruling on defendant's timely-filed motion for new trial. On December 22, 2011, the State of Louisiana sought rehearing of this matter on the basis that the error in the record, which was not attributable to either party, had been corrected. Specifically, there were two errors: first, the minute clerk neglected to accurately record the trial judge's ruling on the motion in the court minutes for October 25, 2010 and, second, the court reporter neglected to transcribe the argument and testimony from the October 25, 2010 hearing. After determining that the trial

[92 So.3d 14]

judge had ruled on defendant's motion for new trial, this Court granted rehearing in this matter to address the merits of defendant's assignments of error.

Facts

In January of 2006, Joseph Barnes² stayed with his aunt's family in Harvey. His aunt was stepmother to two girls, K.B.,³ who was 16 years old,⁴ and D.B., who was 13 years old,⁵ at that time. Around the end of that month, when neither of the girls' parents were home, Barnes hugged K.B. and tried to kiss her on the lips. When K.B. rejected Barnes' advances, he asked if she was uncomfortable and if his actions were inappropriate and K.B. told him they were.

A day or so later, K.B. told her boyfriend that Barnes had tried to kiss her, and her boyfriend encouraged her to tell her father. When K.B. told her father, he was upset and concerned, especially since Barnes was at their house with D.B. at the time. K.B. and her father immediately returned home and Mr. B confronted Barnes.

K.B. went upstairs with her stepmother and her little sister. Because they could hear Mr. B yelling at defendant downstairs, D.B. asked her sister about the argument and K.B. told her that Barnes had tried to kiss her. D.B. then said, “At least that's all he tried to do to you is kiss you.” D.B. then disclosed that Barnes had hugged her on two occasions, picked her up and instructed her to wrap her legs around his waist, put his hands on her buttocks, and put D.B.'s hand on his clothed and unclothed penis. At K.B.'s encouragement, D.B. went downstairs and told her father that Barnes had been “messing” with her, too. The girls' father immediately called the police.

At trial, D.B. testified that, on a Sunday night in January 2006, her stepmother left her at home alone with Barnes for about 20 minutes. That night, Barnes approached D.B. and told her that he understood that she could not talk to her parents because they did not understand each other. He assured her that he understood her and was there for her if she needed to talk.

After a few minutes of small talk, Barnes asked D.B. if she ever touched herself and if she liked the way it felt, which made her uncomfortable. When [5 Cir. 5]Barnes reached towards her pubic region, she told him to stop and pushed his hand away. Then, Barnes “creeped” her out and...