State v. Bessard

• Decision Date: 18 November 2020
• Docket Number: 20-084
• Citation: 307 So.3d 1158
• Parties: STATE of Louisiana v. Davian BESSARD
• Court: Court of Appeal of Louisiana — District of US

307 So.3d 1158

STATE of Louisiana

v.Davian BESSARD

20-084

Court of Appeal of Louisiana, Third Circuit.

November 18, 2020

JaVonna R. Charles-Young, Public Defender's Office, Fifteenth Judicial District, 204 Charity Street, Abbeville, Louisiana 70510, (337) 898-2090, COUNSEL FOR DEFENDANT/APPELLANT: Davian Bessard

Honorable Keith Stutes, District Attorney, Fifteenth Judicial District, Ted L. Ayo, Assistant District Attorney, Fifteenth Judicial District, 100 North State Street, Suite 215, Abbeville, Louisiana 70510, (337) 898-4320, COUNSEL FOR APPELLEE: State of Louisiana

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Candyce G. Perret and Jonathan W. Perry, Judges.

PERRY, Judge.

Defendant appeals the denial of his motion to quash prosecution on the grounds that it had prescribed. For the following reasons, we affirm Defendant's convictions and sentences. However, we remand this matter to the district court with instructions to establish a payment plan for court costs and presentence investigation report fee and to specify the amount of the monthly supervision fee, which was imposed as a condition of Defendant's probation.

FACTS

On August 26, 2016, the grand jury for Vermilion Parish returned a true bill charging Defendant, Davian Bessard, with one count of second degree murder and one count of second degree kidnapping, violations of La.R.S. 14:30.1 and La.R.S. 14:44.1, respectively. Specifically, the indictment alleged that on or about May 23, 2016, Defendant "did commit second degree murder of Jeremiah Walker" and "did use Taiya Mitchell as a human shield wherein said Taiya Mitchell was physically injured[.]" Defendant pled not guilty.

On April 4, 2019, the defense filed a written "Motion to Quash with Incorporated Memorandum of Law" with the district court. In this pleading, the defense sought to quash the charges based on arguments that the limitations on prosecution under La.Code Crim.P. arts. 532(7), 578(A)(2), 580, and 581 had expired.

On April 8, 2019, the State filed a "Memorandum of Law in Opposition to Motion to Quash Filed Herein by Defendant, Davian Bessard." In its brief, the State argued the defense had suspended the running of the limitations on prosecution by filing numerous preliminary pleas and motions for continuances. On May 6, 2019, the State filed a supplemental memorandum in opposition to the motion to quash listing with specificity the suspension of the limitations on prosecution.

On May 10, 2019, Defendant filed a "Defense Response to State's Original and Supplemental Memorandums of Law in Opposition to Defendant's Motion to Quash." In its pleading, the defense disagreed with what suspended the time limitations.

A hearing on Defendant's motion to quash was conducted on May 17, 2019, after which the matter was taken under advisement. On July 8, 2019, the district court issued the following written reasons for denying Defendant's motion to quash:

Defendant argues that on August 26, 2016, the Grand Jury returned a true bill charging the defendant with second degree murder. As a result, the two year prescriptive date period would be on August 26, 2018. Defense counsel filed motions for bond reduction and a motion to compel outstanding discovery. He argues that neither motions are preliminary pleas for the purpose of prescription. Further, defendant cites to Jones and Brooks in support of his position that numerous pre-trial status conferences were held however they are not considered preliminary pleas unless something occurs at the pre-trial status conference to delay trial. State v. Jones, 780 So.2d 1234 [(La. App. 2 Cir. 2001)] ; State v. Brooks, 838 So.2d [778], 783 (La. [2/1[4]/03]).

The state argues that they were engaged with the defense in plea negotiations. There was a delay in the offering of a plea to a lesser offense due to the state's difficulty in contacting victim's next of kin, Ms. Bertha Willis. It was not until May 30, 2018, when Ms. Willis and the state agreed to a manslaughter offer to extend to defense counsel. Once Ms. Willis gave her approval of the plea offer[,] the matter was set for trial on January 14, 2019, at the next status conference. Defense counsel further, by written motion, moved to continue the trial date from January 14th to April 8, 2019.

In non-capital felony cases, the state has two years [from] the date of institution of prosecution in order to bring the matter to trial. La. C.Cr.P. Art. 578. When a motion to quash or other preliminary plea is filed on behalf of the defendant this may have the effect of suspending prescription. La. C.Cr.P. Art. 580. When a defendant brings a motion to quash based on the running of prescription, the burden rest[s] on the state to either show an interruption or suspension of the time limitation has occurred. State v. Jones 780 So.2d 1234.

A preliminary plea is any plea filed after prosecution but before trial that causes the trial to be delayed. State v. Jones[,] 780 So.2d 1234. An appearance in open court for the purpose of status conferences does not constitute [a] "preliminary plea" that would suspend prescription. Id . In State v. Brooks, the Court concluded that a continuance of a status hearing, which allowed defendant to retain counsel for his inexplicably missing counsel constituted a preliminary plea because the state's ability to prosecute the case was actually affected until the defendant was able to once again obtain representation. State v. Brooks [,] 838 So.2d 778, 2002-0792 (La. 2/14/03).

After a review of the evidence submitted, this court finds that prescription, on its face, ran on August 26, 2018. Therefore, the state has the burden of showing an interruption or suspension of prescription has occurred. The state submitted the transcript of the August 2, 2018, status hearing. At this hearing, both the state and the defense certified they were ready for trial. A date in November was originally suggested; however, defense counsel stated she had another second degree murder trial and would not want two serious trials that close to one another. At that time, the state and defense mutually agreed to set the matter for trial on January 14, 2019. Subsequently, defense requested the trial date be continued to April 8, 2019.

This court disagrees with defense counsel's argument. As in State v. Fish[,] 926 So.2d 493, 2005-1929 (La. 4/17/06), the state and defense in this matter, at a pretrial status conference, mutually agreed to a trial date beyond the two year prescriptive period. This mutual agreement was on August 2, 2018, which was within the prescriptive period. This court, therefore, follows the Court[’s] ruling in Fish and finds that this mutual consent to set the matter outside of the prescriptive period, suspended the running of prescription for one year from the date of the hearing, that being August 2, 2018. As a result of the foregoing, defendant's Motion to Quash is denied.

On July 12, 2019, the defense filed with the district court notice of its intent to seek supervisory review. On July 12, 2019, the district court issued an order setting August 9, 2019, as the return date for the writ application.

On application for supervisory review, this court denied relief on the showing made:

WRIT DENIED: Defendant filed a writ application with this court seeking supervisory review of the trial court's denial of Defendant's motion to quash the indictment based on the expiration of the time for bringing the case to trial. Defendant's writ application is deficient. It does not comply with La.Code Crim.P. art. 912.1(C) ; Uniform Rules—Courts of Appeal, Rule 4–5 ; and City of Baton Rouge v. Plain , 433 So.2d 710 (La.), cert. denied , 464 U.S. 896, 104 S.Ct. 246, 78 L.Ed.2d 235 (1983). The writ application is missing a copy of the ruling complained of; a copy of any written reasons for ruling; a copy of the minutes of court; a transcript of the hearing held on Defendant's motion to quash; and a copy of all exhibits introduced at the hearing. Accordingly, Defendant's writ application is denied on the showing made.

State v. Bessard , 19-552 (La.App. 3 Cir. 10/3/19) (unpublished opinion).

Prior to this court's writ ruling, Defendant, on August 8, 2019, entered a plea of nolo contendere to the amended, reduced charges of manslaughter, in violation of La.R.S. 14:31, and aggravated obstruction of a highway, in violation of La.R.S. 14:96. As part of the plea agreement, the district court ordered a pre-sentence investigation, set a sentencing cap for each charge at ten years, agreed to run the penalties concurrently, credited Defendant for all time served since his May 23, 2016, arrest date, and directed Defendant to pay a $150.00 fee in accordance with La.Code Crim.P. art. 875(A)(4)(a). Also in accordance with the plea bargain, the State agreed to refrain from filing a habitual offender bill in the instant case. At the time of the plea, Defendant, in accordance with State v. Crosby , 338 So.2d 584 (La.1976), reserved his right to appeal the issues raised in his motion to quash.

Defendant appeared for sentencing on October 17, 2019. After considering the information presented, the district court: 1) imposed four years at hard labor for the manslaughter; 2) credited Defendant for all time served; 3) imposed eight years at hard labor for the aggravated obstruction of a highway; 4) directed the penalties to run concurrently with each other and any other; 5) suspended the eight-year sentence; 6) placed Defendant, upon his release, on three years of supervised probation with both general and special conditions; 7) fined Defendant $150.00; 8) ordered Defendant to pay $470.50 for costs of court; 9) and directed Defendant to pay a $150.00 fee in accordance with La.Code Crim.P. art. 875(A)(4)(a). Defendant now appeals the issue reserved at the time of his plea.

MOTION TO QUASH

In his sole assignment of error, Defendant contends the district court erred in denying his motion to quash the bill of information on grounds the State failed...