State Of Louisiana v. Patrick J. Callegan

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

Q FIRST CIRCUIT

2019 KA 1243

STATE OF LOUISIANA

VERSUS

PATRICK J. CALLEGAN

SEP 2 4 2020
Judgment rendered:

On Appeal from the
Eighteenth Judicial District Court
In and for the Parish of lberville
State of Louisiana
No. 1031- 17, Sec. " D"

The Honorable Elizabeth A. Engolio, Judge Presiding
MMEW

Richard J. Ward, Jr. Attorneys for Appellee
District Attorney State of Louisiana
Terri Russo Lacy
Assistant District Attorney
Plaquemine, Louisiana

Katherine M. Franks Attorney for Plaintiff/Appellant
Louisiana Appellate Project Patrick J. Callegan
Madisonville, Louisiana

BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.

HOLDRIDGE, J.

The defendant, Patrick J. Callegan, was charged by grand jury indictment
with first degree rape, a violation of La. R.S. 14: 42 ( count one), and intimidating a

witness, a violation of La. R.S. 14: 129. 1 ( count two). He initially pled not guilty

on each count. The trial court denied the defendant' s motion to suppress.'

Pursuant to a plea bargain that included agreed- upon sentences and the amendment

of count one to second degree rape, a violation of La. R.S. 14: 42. 1, the defendant

withdrew his not guilty pleas and entered a plea of guilty on count one as amended

and guilty as charged on count two. He reserved the right to appeal the trial court' s

denial of his motion to suppress and his request to be tried by a " 12 -person
unanimous verdict." See State v. Crosby, 338 So. 2d 584 ( La. 1976). 2 In

accordance with the plea agreement, the trial court sentenced the defendant to

thirty- five years imprisonment at hard labor on each count, to be served

concurrently.

The defendant now appeals, assigning error to the legality of the sentence on

count two, the trial court' s review of unadmitted recordings and/ or transcripts in

denying his motion to suppress, and the trial court' s denial of his request to be

subject to conviction only by a unanimous jury verdict. He argues that because of

the errors in the proceeding, his guilty pleas should be set aside. For the following

After the jury was selected, the trial court also denied the defendant' s oral motion objecting to
the constitutionality of the jury. Specifically, the defendant' s attorney argued that the defendant
should be entitled to a twelve -person, unanimous jury verdict. While the defendant
acknowledged that a capital verdict was not being sought in this case, he argued that pursuant to
La. Code Crim. P. art. 782( A), he was entitled to a unanimous verdict because this is case " that
could carry the death penalty." In denying the motion, the trial court referenced the " aggravated
rape statute." See La. R. S. 14: 42( D)( 2)( b). The defendant' s attorney further argued that because
the jury verdict statute was changed by vote of the people, the new law should apply in this case.

2 The judge, assistant district attorney, the defendant and his attorney all signed or initialed the
Boykin form agreeing to allow the defendant to appeal his issue as to the constitutionality of a
non -unanimous jury verdict.
2

reasons, we set aside the convictions and sentences and remand for further

proceedings to allow the defendant the opportunity to withdraw his guilty pleas.

ASSIGNMENT OF ERROR #3: DENIAL OF REQUEST FOR
CONVICTION BY A UNANIMOUS JURY VERDICT

In assignment of error number three, the defendant argues that, prior to his

guilty pleas, the trial court erred in ruling that the jury would be instructed that a

concurrence of ten out of twelve jurors would be sufficient to reach a verdict, such

that a unanimous verdict would not have been required. The defendant concedes

that at the time of the instant offenses, the Louisiana Constitution allowed for a

felony conviction on a non -capital case if ten out of twelve jurors voted guilty.

However, the defendant argues that because his convictions are not yet final, his

guilty pleas should be set aside to afford him a trial wherein he can receive the

benefit of the change in the law, requiring unanimous verdicts for all criminal

convictions. Furthermore, in the defendant' s plea agreement, the trial court stated

that the defendant had the " right to reserve the appeal for the unanimous jury

verdict issue."

In the recent decision of Ramos v. Louisiana, _ U.S. _, _ S. Ct. _,

L.Ed.2d _, 2020 WL 1906545 ( 2020), the United States Supreme Court overruled

Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L.Ed.2d 184 ( 1972), and

held that the right to a jury trial under the Sixth Amendment of the United States

Constitution, incorporated against the States by way of the Fourteenth Amendment

of the United States Constitution, requires a unanimous verdict to convict a

defendant of a serious offense. The Ramos Court further noted that its ruling

applied to those defendants convicted of felonies by nonunanimous verdicts whose

cases are still pending on direct appeal. Herein, the defendant pled guilty pursuant

3

Crosby, preserving this assignment of error, asserted on appeal in anticipation of

the ruling in Ramos.

The function of a Crosby plea is to permit a fair and efficient review of a

central issue when the pre -plea ruling would mandate reversal of any resulting

conviction. See State v. Gordon, 2004- 0633 ( La. App. 1st Cir. 10/ 29/ 04), 896

So. 2d 1053, 1061, writ denied, 2004- 3144 ( La. 4/ 1/ 05), 897 So. 2d 600. In State v.

Pounds, 2014- 1063 ( La. App. 1st Cir. 3/ 9/ 15), 166 So.3d 1037, 1038, writ denied,

2015- 0696 ( La. 2/ 19/ 16), 186 So.3d 1173, the defendant entered a plea of guilty as

charged on all counts pursuant to Crosby, preserving for review on appeal, the trial

court' s adverse ruling on his motion to suppress evidence. On concluding that the

trial court erred in denying the motion to suppress evidence obtained as a result of

the warrantless search and seizure of the defendant' s prescription and medical

records, this court reversed the trial court's ruling and remanded the case to the trial

court for further proceedings allowing the defendant the opportunity to withdraw

his guilty pleas. Pounds, 166 So. 3d at 1041. In this case, the defendant and his

attorney specifically reserved the right to appeal the issue of whether he was

entitled to be convicted only by a unanimous jury verdict. At the Boykin hearing,

the trial court specifically allowed the defendant to " reserve the appeal for the

unanimous jury verdict issue" and it is was noted for the record. Since the record

clearly indicates that the trial judge accepted the defendant' s plea agreement which

contained a Crosby pleas that allowed the defendant to reserve his right to appeal

the non -unanimous jury verdict issue, we are bound pursuant to the decision in

Ramos to allow the defendant to withdraw his guilty plea.

Accordingly, as a result of Ramos and the defendant' s plea pursuant to

Crosby, we must hold that the defendant' s Sixth Amendment right to a jury trial

was violated by the denial of his request to be subject to conviction by no less than

0

a unanimous jury verdict. Accordingly, the defendant' s convictions and sentences

are set aside, and the case is remanded for further proceedings, allowing the

defendant the opportunity to withdraw his guilty pleas. The other issues raised on
appeal are rendered moot.

SET ASIDE CONVICTIONS AND SENTENCES AND REMAND FOR
FURTHER PROCEEDINGS TO ALLOW THE DEFENDANT THE
OPPORTUNITY TO WITHDRAW HIS GUILTY PLEAS.

5

STATE OF LOUISIANA NUMBER: 2019 KA 1243

FIRST CIRCUIT
VERSUS
COURT OF APPEAL

PATRICK J. CALLEGAN STATE OF LOUISIANA

WELCH, J., dissenting.

I respectfully disagree with the majority' s decision to set aside the defendant' s

guilty plea convictions and sentences. The majority' s decision is not only legally

incorrect, but it is also a gross deviation from the law relative to plea agreements

under State v. Crosby, 338 So. 2d 584 ( La. 1976) and a misapplication of the

principles set forth in Ramos v. Louisiana, U.S. , 140 S. Ct. 1390, 1397, 206

L.Ed.2d 583 ( 2020). There has been no breach of the plea agreement and if the

majority' s decision to vacate the defendant' s guilty plea convictions and sentences

pursuant to Ramos is allowed to stand, this would indeed be the first case to allow

and nullify a plea agreement under Crosby based on a proposed jury instruction that

would have been legally correct at the time it would have been given. Thus, the

defendant' s convictions and sentences should be affirmed.

In the proceedings below, the defendant filed a motion to suppress, which the

trial court denied. In addition, the defendant requested that the trial court instruct

the jury that it had to reach a unanimous verdict. While the defendant acknowledged

that a capital verdict was not being sought, he argued that he was entitled to a

unanimous verdict pursuant to La. C. Cr.P. art. 782( A) because: ( 1) his case " could

carry the death penalty," and ( 2) there was a constitutional amendment to end non -

unanimous jury verdicts in Louisiana that was approved by the voters on November

6, 2019. The trial court also denied this request, ruling that the jury would be

instructed that a concurrence of ten out of twelve jurors would be sufficient to reach

a verdict and that a unanimous verdict was not required. The defendant then pled

guilty, but reserved his right to appeal the denial of his motion to suppress and his

request to be tried by a twelve person unanimous verdict under Crosby. As the

majority has noted, the defendant has conceded that at the time of the instant

offenses, around June 17, 2017, the Louisiana Constitution allowed for a felony

conviction on a non -capital case if ten out of twelve jurors voted guilty.

On appeal, the defendant argues that because his convictions are not yet final,

as of November 6, 2018, the date the Louisiana voters amended the constitution, his

convictions are subject to the amended versions of La. Const. art. I, §17( A) and La.

C. Cr.P. art. 782( A). While the defendant acknowledges that the 2018 amendments

to La. Const. art. I § 17( A) and La. C. Cr.P. art. 782( A) provide that the change in the

law is prospective, he argues that the amendments should be applied retroactively

and that his guilty pleas should be set aside to afford him a new trial wherein he can

receive the benefit of the change in the law. Citing Ramos, the majority holds that

the defendant is now entitled to the jury instruction he sought below, and pursuant

to Crosby, vacates the defendant' s convictions and sentences to allow the defendant

a new trial.

A guilty plea should be afforded a great measure of finality and normally

waives all nonjurisdictional defects. See Crosby, 338 So. 2d at 586. Under Crosby,

338 So. 2d at 591, a defendant may be allowed appellate review, if at the time he

enters a guilty plea, he expressly reserves his right to appeal specific adverse ruling

in a case. However, Crosby appeals are limited to the principles articulated in

Crosby, 338 So. 2d at 591: "[ t] he type of error ... [ that] represents a violation of a

constitutional or statutory right which, for reasons beyond guilt or innocence, would

mandate a reversal of a conviction resulting from a trial." A proposed jury

instruction that was legally correct at the time it was to be given is not the type of

error envisioned by Crosby. Rather, Crosby appeals are for pre-trial rulings, which

are adverse to the defendant, and essentially compels the defendant to plead guilty.

The trial court' s intention to give a legally correct jury instruction did not compel

the defendant to plead guilty.

Notably, during the pendency of this appeal, the United States Supreme Court,

in Ramos, held that the Sixth Amendment right to a jury trial— as incorporated

against the States through the Fourteenth Amendment— requires a unanimous jury

verdict to convict a defendant of a serious offense. However, the Supreme Court

stated that its holding applied to those defendants convicted by non -unanimous jury

verdicts whose cases are still pending on direct appeal. Ramos, 140 S. Ct. at 1406.

Thus, as to cases still pending on direct appeal, Ramos is only applicable to

defendants who were actually convicted of serious offenses by non -unanimous

juries. Only if the defendant had actually gone to trial and only if he had been

convicted by a non -unanimous jury verdict would the defendant be entitled to

challenge a conviction under Ramos. He cannot and should not be allowed to

challenge a guilty plea conviction on the basis of a proposed jury instruction

requiring a less than unanimous verdict, as the defendant could have been convicted

by a unanimous jury had he gone to trial. As such, Ramos has no application to the

defendant' s guilty plea or to his challenge to the trial court' s denial of his requested

jury instruction.

Moreover, La. C. Cr.P. art. 802 mandates the trial court to charge the jury " as

to the law applicable to the case." The instant offenses were committed on or about

June 17, 2017. Louisiana follows the general rule that a constitutional provision or

amendment has prospective effect only, unless a contrary intention is clearly

expressed. State v. Cousan, 94- 2503 ( La. 11/ 25/ 96), 684 So. 2d 382, 392- 393.

Thus, the defendant was not entitled to retroactive application of the 2018

amendments of La. Const. art. I, § 17( A) and La. C. Cr.P. art. 782( A), requiring

unanimous jury verdicts, which were expressly applicable to offenses committed on

or after January 1, 2019. Thus, the trial court' s denial of the requested jury

instruction does not entitle the defendant to any relief under Crosby.

As to the defendant' s challenges to the legality of his sentence on count two

intimidation of a witness) and the denial of his motion to suppress, I find no error.

Therefore, I would affirm the defendant' s convictions and sentences.

Thus, I respectfully dissent.