State of Louisiana Versus Marvin S. Acevedo

STATE OF LOUISIANA NO. 18-KA-683

VERSUS FIFTH CIRCUIT

MARVIN S. ACEVEDO COURT OF APPEAL

STATE OF LOUISIANA

ON REMAND FROM THE LOUISIANA SUPREME COURT
AN APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 17-3961, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

June 30, 2020

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Marc E. Johnson

CONVICTION AND SENTENCE VACATED; REMANDED
JGG
SMC
MEJ

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Terry M. Boudreaux
Thomas J. Butler
Rachel L. Africk
Jennifer C. Voss

COUNSEL FOR DEFENDANT/APPELLANT,
MARVIN S. ACEVEDO
Cynthia K. Meyer

GRAVOIS, J.

ON REMAND FROM THE LOUISIANA SUPREME COURT

This case was remanded to this Court by the Louisiana Supreme Court for

further proceedings. See State v. Acevedo, 19-824 (La. 6/3/20), --- So.3d ----, 2020

WL 3423975 (Mem.) (per curiam). In its order of remand, the Supreme Court

instructed this Court to conduct a new errors patent review in light of the United

States Supreme Court’s ruling in Ramos v. Louisiana, 590 U.S. ----, 140 S.Ct.

1390, --- L.Ed.2d ---- (2020), 2020 WL 1906545 (U.S. Apr. 20, 2020).1

Previously, this Court affirmed defendant’s conviction, by a non-unanimous 12-

person jury, for possession of over 400 grams of cocaine in violation of La. R.S.

40:967(F). See State v. Acevedo, 18-683 (La. App. 5 Cir. 5/8/19), 273 So.3d 462.

For the following reasons, after further proceedings in accordance with said order

of remand, we find that defendant is entitled to a new trial, and accordingly, we

vacate defendant’s conviction and sentence and remand the matter to the trial court

for further proceedings consistent with this opinion.

ANALYSIS

As noted in this Court’s previous opinion, defendant was charged with

possession of over 400 grams of cocaine in violation of La. R.S. 40:967(F), which

provided that a conviction thereunder was punishable by imprisonment at hard

labor for not less than fifteen years, nor more than thirty years, and payment of a

fine of not less than two hundred fifty thousand dollars, nor more than six hundred

thousand dollars.2 Since the punishment for this offense is necessarily confinement

1
The order of remand further instructed: “If the non-unanimous jury claim was not preserved for review in
the trial court or was abandoned during any stage of the proceedings, the court of appeal should nonetheless consider
the issue as part of its error patent review. See La. C.Cr.P. art. 920(2).”
2
La. R.S. 40:967(F) was repealed in its entirety by Acts 2017, No. 281.

18-KA-683 1

at hard labor, defendant had to be tried before a 12-person jury. See La. Const.

Art. I, § 17; La. C.Cr.P. art. 782.3

Non-unanimous jury verdicts were previously allowed under both La. Const.

Art. I, § 17 and La. C.Cr.P. art. 782, and the circumstances of the instant case. In

defendant’s appeal before this Court, he argued the unconstitutionality of La.

C.Cr.P. art. 782(A).4 This Court found, at that time, no merit to that assignment of

error, finding that:

[T]he constitutionality of non-unanimous jury verdicts was
upheld in both State v. Bertrand, 08-2215 and 08-2311 (La. 3/17/09),
6 So.3d 738, and Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32
L.Ed.2d 184 (1972). As an intermediate court, we are bound by that
precedent.

State v. Acevedo, 273 So.3d at 487.

However, in Ramos, the United States Supreme Court found that the Sixth

Amendment right to a jury trial—as incorporated against the States by the

Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a

serious offense. The Court concluded:

There can be no question either that the Sixth Amendment’s
unanimity requirement applies to state and federal criminal trials
equally. This Court has long explained that the Sixth Amendment
right to a jury trial is “fundamental to the American scheme of justice”
and incorporated against the States under the Fourteenth Amendment.
This Court has long explained, too, that incorporated provisions of the
Bill of Rights bear the same content when asserted against States as
they do when asserted against the federal government. So if the Sixth
Amendment’s right to a jury trial requires a unanimous verdict to
support a conviction in federal court, it requires no less in state court.
(Footnotes omitted.)

Ramos, supra, 140 S.Ct. at 1397.

3
Both La. Const. Art. I, § 17 and La. C.Cr.P. art. 782(A) currently provide, in pertinent part, that a case for
an offense committed prior to January 1, 2019, in which the punishment is necessarily confinement at hard labor
shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict, and that a case for an
offense committed on or after January 1, 2019, in which the punishment is necessarily confinement at hard labor
shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.
4
This Court’s previous opinion noted that the jury verdict was 11 to 1 in favor of conviction. See State v.
Acevedo, 273 So.3d at 486.

18-KA-683 2

For purposes of the Sixth Amendment, federal law defines petty offenses as

offenses subject to imprisonment of six months or less, and serious offenses as

offenses subject to imprisonment over six months. The Sixth Amendment’s right

to a jury trial only attaches to serious offenses. See generally Lewis v. United

States, 518 U.S. 322, 327-28, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996); Hill v.

Louisiana, 2013 WL 486691 (E.D. La. 2013).

Although we have conducted an errors patent review on remand as

instructed, in his first appeal, as noted above, the unconstitutionality of La. C.Cr.P.

art. 782 was previously raised by defendant as an assignment of error.5 Based on

Ramos and the fact that the instant case is still on direct appeal,6 we find that since

the verdict resulting from defendant’s jury trial was not unanimous for this

“serious offense,” defendant is entitled to a new trial. Accordingly, in light of the

United States Supreme Court’s decision in Ramos and the circumstances of this

case, we vacate defendant’s conviction and sentence and remand the matter to the

trial court for further proceedings consistent with this opinion.

CONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are vacated

and the matter is remanded to the trial court for further proceedings consistent with

this opinion.

CONVICTION AND SENTENCE
VACATED; REMANDED

5
Likewise, in his appeal, defendant also raised as error sufficiency of the evidence to convict, which we
previously rejected as having no merit. See State v. Acevedo, 273 So.3d at 476. Accordingly, another review of
sufficiency of the evidence by this Court on remand is unnecessary.
6
See Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 2522, 159 L.Ed.2d 442 (2004), observing
that “[w]hen a decision of [the United States Supreme Court] results in a ‘new rule,’ that rule applies to all criminal
cases still pending on direct review,” citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649
(1987) (“a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a
‘clear break’ with the past.”).

18-KA-683 3

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. 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
JUNE 30, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

18-KA-683
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
TERRY M. BOUDREAUX (APPELLEE) THOMAS J. BUTLER (APPELLEE) CYNTHIA K. MEYER (APPELLANT)

MAILED
HON. PAUL D. CONNICK, JR. (APPELLEE)
DISTRICT ATTORNEY
RACHEL L. AFRICK (APPELLEE)
JENNIFER C. VOSS (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053