State of Louisiana Versus Edgard J. Rivas

STATE OF LOUISIANA NO. 19-KA-378

VERSUS FIFTH CIRCUIT

EDGARD J. RIVAS COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 17-2199, DIVISION "B"
HONORABLE CORNELIUS E. REGAN, JUDGE PRESIDING

May 21, 2020

MARC E. JOHNSON
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and John J. Molaison, Jr.

CONVICTIONS AND SENTENCES VACATED; REMANDED
MEJ
FHW
JJM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Gail D. Schlosser
Lynn Schiffman
Blair C. Constant

COUNSEL FOR DEFENDANT/APPELLANT,
EDGARD J. RIVAS
Lieu T. Vo Clark

JOHNSON, J.

Defendant, Edgard J. Rivas, appeals his convictions and sentences for first

degree robbery from the 24th Judicial District Court, Division “B”. For the

following reasons, Defendant’s convictions and sentences are vacated, and the

matter is remanded to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On April 10, 2017, the District Attorney for Jefferson Parish filed a bill of

information charging Defendant with one count of armed robbery against Casey

Rickert1, in violation of La. R.S. 14:64 with a firearm enhancement under La. R.S.

14:64.3(A) (count four); one count of armed robbery against Ashly Watson

Michel2, in violation of La. R.S. 14:64 with a firearm enhancement under La. R.S.

14:64.3(A) (count five); one count of possession with intent to distribute a

controlled dangerous substance (marijuana), in violation of La. R.S. 40:966(A)

(count 10); and one count of battery upon a police officer producing an injury

which required medical attention, in violation of La. R.S. 14:34.2 (count 13). 3

Defendant was arraigned and pleaded not guilty to the charged offenses on April

10, 2017. The defense filed various motions, including a motion to suppress

identification and a motion to suppress confession, both of which were denied. On

October 22, 2018, the trial court granted the State’s motion to introduce similar

crimes evidence pursuant to La. C.E. art. 404(B).

Also on October 22, 2018, the District Attorney amended the bill of

information to correct a misspelling of the victim’s last name in count four and to

remove the firearm enhancement as to both counts of armed robbery (counts four

1
The spelling was later amended to “Casey Ruckert.”
2
This spelling matches that found in the bill of information, amended bill of information,
discovery receipt, and part of the jury charges. Her name is also spelled as “Ashley Watson” Michel in
part of the jury charges, a minute entry, and transcripts of multiple testimonies. For purposes of this
opinion, “Ashly” will be used.
3
Counts one through 12 were charges against co-defendant Mario Geovani. Counts four, five,
10, and 14 were charges against co-defendant Carlos A. Ramos. Count 10 charged co-defendant Tiffany
Shuff.

19-KA-378 1

and five). On October 23, 2018, the District Attorney amended the bill of

information to amend the possession charge to a misdemeanor offense under La.

R.S. 40:966(C) (count 10) and to reduce the battery of a police officer charge to a

misdemeanor offense (count 13).4 Also on October 23, 2018, trial began before a

12-person jury for two charges of armed robbery.5 Trial continued on October 24,

2018 and concluded on October 25, 2018. The jury, in 11-1 verdicts, found

Defendant guilty of the lesser responsive verdicts of first degree robbery on both

counts.

On November 21, 2018, Defendant filed a motion for new trial, a motion to

reconsider sentence, and a motion for appeal.6 In Defendant’s motion for new trial,

he argued, among other things, that the 11-1 verdict was illegal. Defendant stated

in his motion to reconsider sentence that the sentence is excessive and harsh in

nature. Before sentencing, on November 30, 2018, the court denied Defendant’s

motion for new trial. Also on November 30, 2018, the trial court sentenced

Defendant to 30 years imprisonment at hard labor without the benefit of parole,

probation, or suspension of sentence on each count of first degree robbery, to run

concurrently with the sentence in case number 17-2200.7 The same day, after

sentencing, the trial court denied Defendant’s motion to reconsider sentence. The

4
Defendant was not rearraigned after these amendments.
5
In case number 17-2199, the trial court addressed the misdemeanor charges of simple
possession of marijuana (count 10) and simple battery of a police officer (count 13) by bench trial. The
trial court found Defendant guilty on both charges and sentenced Defendant on November 30, 2018. The
court also found Defendant guilty as charged in case number 17-2200 with respect to possession of drug
paraphernalia. Defendant’s sentences in both cases are to run concurrently.
6
The motion to reconsider sentence and the motion for appeal were prematurely filed.
Jurisprudence holds an untimely-filed motion for an appeal, i.e., filed before sentencing, is “cured” when
the motion is subsequently granted after sentencing. See State v. Enclard, 03-283 (La. App. 5 Cir.
6/19/03); 850 So.2d 845, 848 n.3 (finding the defendant’s prematurely filed motion for an appeal was
cured when his appeal was granted after he was sentenced); State v. Hayes, 01-736 (La. App. 5 Cir.
12/26/01); 806 So.2d 816, 818 n.2, writ denied, 02-0263 (La. 10/25/02); 827 So.2d 1169 (also finding the
defendant’s prematurely filed motion for an appeal was cured when his appeal was granted after he was
sentenced). In such cases, the trial court “cures” this defect by granting the motion after sentencing the
defendant. Here, while the motion for appeal was prematurely filed, it was granted after sentencing and
was thus effectively cured. See Enclard, supra; Hayes, supra. See discussion of assignment of error
number one regarding the premature motion to reconsider sentence.
7
Defendant was also sentenced on the same day in case number 17-2200 to 15 days in parish
prison for possession of marijuana, to run concurrently, and six months in parish prison for battery of a
police officer, to run concurrently.

19-KA-378 2

court granted Defendant’s motion for appeal on December 4, 2018. The instant

appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Defendant alleges the non-unanimous jury verdicts are invalid;

the amended unanimous jury verdict law retroactively applies to his convictions;

and, the trial court erred in denying his motion to reconsider sentence.

LAW AND ANALYSIS

Non-unanimous Jury Verdicts

Defendant alleges that the jury verdicts in his convictions are invalid

because they were rendered by a non-unanimous jury. Defendant argues that the

non-unanimous verdicts violated the Sixth and Fourteenth Amendments of the

United States Constitution. He states that, at the time the offense was committed,

the non-unanimous jury provisions in La. C.Cr.P. art. 782(A) and art. 1, § l7(A) of

the Louisiana Constitution were inconsistent with the Sixth and Fourteenth

Amendments to the United States Constitution. We find merit to Defendant’s

assignment of error.

In Ramos v. Louisiana, --- U.S. ----, 140 S.Ct. 1390, --- L.Ed.2d ----,

2020WL1906545 (2020), 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 trials

equally…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.”

Id., slip op. at 7, 2020 WL 1906545 at *6.

19-KA-378 3

According to Ramos, Louisiana will have to retry defendants who were convicted

of serious offenses by non-unanimous juries and whose cases are still pending on

direct appeal.

Based on Ramos and the fact that the instant case is on direct appeal, we find

that, because the verdicts were not unanimous for the serious offenses before us,

the convictions and sentences must be vacated. Defendant is entitled to a new trial.

See State v. Myles, 19-965 (La. App. 4 Cir. 4/29/20); 2020 WL 2069885 (where on

direct appeal, the Fourth Circuit vacated the defendant’s conviction and sentence

pursuant to Ramos, supra, and the case was remanded to the district court). The

remaining assignments of error are pretermitted.

DECREE

For the foregoing reasons, we find that Defendant is entitled to a new trial.

Accordingly, Defendant’s convictions and sentences in the instant case are

vacated, and the matter is remanded to the trial court for further proceedings.

CONVICTIONS AND SENTENCES VACATED;
REMANDED

19-KA-378 4

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
MAY 21, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-378
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE CORNELIUS E. REGAN (DISTRICT JUDGE)
THOMAS J. BUTLER (APPELLEE) GAIL D. SCHLOSSER (APPELLEE) LIEU T. VO CLARK (APPELLANT)

MAILED
BLAIR C. CONSTANT (ATTORNEY)
LYNN SCHIFFMAN (ATTORNEY)
HONORABLE PAUL D. CONNICK, JR.
(ATTORNEY)
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053