State Of Louisiana v. Joseph B. Schmidt

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2020 KA 0145

STATE OF LOUISIANA

VERSUS

JOSEPH B. SCHMIDT

Judgment Rendered: MAR 1 12021

On Appeal from the
22nd Judicial District Court
Parish of St. Tammany, State of Louisiana
No. 235312

The Honorable Raymond S. Childress, Judge Presiding

Warren L. Montgomery Counsel for the State of Louisiana
District Attorney
Matthew Caplan

Assistant District Attorney
Covington, Louisiana

Mary Watson Smith Counsel for Defendant/ Appellee,
Metairie, Louisiana Joseph B. Schmidt
and

Roy K. Burns, Jr.
Lam M. Tran
Covington, Louisiana

BEFORE: THERIOT, WOLFE, AND RESTER, JJ.

WOLFE, J.

The State of Louisiana appeals the trial court' s judgment granting the

defendant' s motion to quash the bill of information. We affirm.

FACTS

The defendant, Joseph B. Schmidt, was charged by bill of information with

three counts of molestation of a juvenile, violations of La. R.S. 14: 81. 2. The

defendant pled not guilty, and a trial date was set. The defendant failed to appear

for trial, and an attachment was issued for his arrest. Five years later, the defendant

was arrested and again failed to appear for court. An attachment was issued for his

arrest. Almost fourteen years later, the defendant was arrested in Texas on unrelated

charges. The defendant was then released by Texas authorities because Louisiana

had no authority to extradite the defendant to Louisiana. Over four years later, the

defendant was again arrested in Texas. By this time, the extradition laws were

amended and expanded, and the defendant was arrested and brought to Louisiana

after waiving extradition. The defendant filed a motion to quash the bill of

information, arguing that the time limitation for bringing him to trial had elapsed.

Following a hearing on the matter, the trial court granted the motion to quash.

DISCUSSION

In its sole assignment of error, the State contends the trial court erred in

granting the defendant' s motion to quash the bill of information, arguing that the

time limitations for bringing the defendant to trial had not elapsed.

A trial court' s ruling on a motion to quash should not be reversed in the

absence of a clear abuse of the trial court' s discretion. See State v. Love, 2000-

3347 ( La. 5/ 23/ 03), 847 So. 2d 1198, 1206. A trial court' s legal findings, however,

are subject to a de novo standard of review. See State v. Smith, 99- 0606, 99- 2015,

99- 2019, 99- 2094 ( La. 7/ 6/ 00), 766 So. 2d 501, 504.

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Time limits on the commencement of trials that are based upon the

classification of the offense are mandated by La. Code Crim. P. art. 578, which

provides:

A. Except as otherwise provided in this Chapter, no trial shall be
commenced nor any bail obligation be enforceable:

1) In capital cases after three years from the date of institution of the
prosecution;

2) In other felony cases after two years from the date of institution of
the prosecution; and

3) In misdemeanor cases after one year from the date of institution of
the prosecution.

B. The offense charged shall determine the applicable limitation.

The State instituted prosecution against the defendant on November 4, 1994

in St. Tammany Parish. Pursuant to La. Code Crim. P. art. 578( A)(2), the State had

two years from that date to commence trial, unless that time period was interrupted

by a cause provided for in La. Code Crim. P. art. 579, which provides:

A. The period of limitation established by Article 578 shall be
interrupted if:

1) The defendant at any time, with the purpose to avoid detection,
apprehension, or prosecution, flees from the state, is outside the state,
or is absent from his usual place of abode within the state; or

2) The defendant cannot be tried because of insanity or because his
presence for trial cannot be obtained by legal process, or for any other
cause beyond the control of the state; or

3) The defendant fails to appear at any proceeding pursuant to actual
notice, proof of which appears in the record.

B. The periods of limitation established by Article 578 shall commence
to run anew from the date the cause of interruption no longer exists.

C. If the defendant fails to appear in court pursuant to any provision of
this Article and the defendant is subsequently arrested, the periods of
limitations established by Article 578 of this Code shall not commence
to run anew until the defendant appears in person in open court where
the case on the original charge is pending, or the district attorney
prosecuting the original charge has notice of the defendant's custodial
location. For purposes of this Paragraph, " notice" shall mean either of
the following:

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1)
Filing in the court record by either the defendant or his counsel
advising the court of his incarceration with a copy provided to the
district attorney and certification of notice provided to the district
attorney.

2) Following the seventy-two hour hearing provided by Article 230. 1
of this Code, actual notice of arrest is provided to the district attorney
and filed in the record of the proceeding of which the warrant against
the defendant was issued.

In May of 1995, when the defendant failed to appear for trial, the time

limitation for bringing him to trial was interrupted. See La. Code Crim. P. art.

579( A)(3). In August of 2000, the defendant was arrested, and the time limitation

under La. Code Crim. P. art. 579( B) for bringing the defendant to trial began to run

anew. In November of 2000, when the defendant failed to appear for court, the time

limitation for bringing him to trial was again interrupted.

Almost fourteen years later, in February of 2014, the defendant' s whereabouts

became known to the St. Tammany Parish Sheriff' s Office when the defendant was

arrested in Texas for driving without a license and possession of drug paraphernalia.

While there was still an active warrant for the defendant' s arrest in Louisiana, the

St. Tammany Parish Sheriff's Office informed Texas authorities that Texas was

outside of Louisiana' s authorized extradition limits. The defendant was

subsequently released by Texas authorities.

In April of 2019, the defendant was again arrested in Texas. By this time, a

change in the law had included Texas within the extradition limits of Louisiana. The

defendant waived extradition and was brought to Louisiana. In May of 2019, the

defendant was booked in the St. Tammany Parish Jail. Thereafter, the defendant

filed the motion to quash the bill of information for failure to timely prosecute.

The issue at the motion to quash hearing was the addition of Paragraph ( C) to

La. Code Crim. P. art. 579, which took effect on August 1, 2013. See 2013 La. Acts

No. 6, § 1. The time period at issue was between February of 2014, when St.

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Tammany Parish authorities had notice of the defendant' s whereabouts, and April

of 2019, when the defendant was brought back to Louisiana and jailed.

If La. Code Crim. P. art. 579( A)(3) applies, then the two- year period the State

had for bringing the defendant to trial expired because on February 5, 2014, the St.

Tammany Parish authorities had actual notice of the defendant' s location (in a Texas

jail). That is, the period of limitation commenced to run anew on February 5, 2014,

and the State had until February 5, 2016 to bring the defendant to trial, which it failed

to do. See La. Code Crim. P. art. 579( B); State v. Baptiste, 2008- 2468 ( La.

6/ 23/ 10), 38 So. 3d 247, 248.

If, on the other hand, La. Code Crim. P. art. 579( C) applies, the two-year

period to prosecute has not expired because, in February of 2014, the cause of

interruption still existed. That is, neither of the triggering events of Article

579( C)( 1) or ( C)( 2) has occurred; thus, under either subparts ( C)( 1) or ( C)( 2), the

State did not have notice of the defendant' s custodial location, and interruption

continued.
It was only on May 10, 2019, when the defendant appeared in person in

open court in Louisiana for the seventy-two hour hearing provided by La. Code

Crim. P. art. 230. 1, that the State had " notice" of the defendant' s location. See La.

Code Crim. P. art. 579( C)( 2). Thus, according to the State, it had until May 10, 2021

to bring the defendant to trial.

Since La. Code Crim. P. art. 579( C) took effect on August 1, 2013, and

February of 2014 became the first time the defendant' s location became known by

authorities after thirteen years, the State argued that Article 579( C) controlled. The

defendant argued that the date of prosecution in 1994 determined which law applied;

and since La. Code Crim. P. art. 579( C) was not in effect at that time, La. Code Crim.

P. art. 579( A)(3) and (B) applied, and time limitations for prosecution had run. The

defendant further argued that La. Code Crim. P. art. 579( C) could not be applied

retroactively to his case.

W

In State v. Stewart, 2015- 1845, 2015- 1846 ( La. 5/ 12/ 17), 219 So. 3d 306 (per

curiam),
our supreme court considered the retroactivity of La. Code Crim. P. art.

579( C) to a case that involved a prosecution instituted in June of 2011, prior to the

passage of Article 579( C). In finding that Article 579( C) could not be retroactively

applied, the court stated:

Unlike the court of appeal, we find it immaterial whether the more
specific notice requirements of La.C. Cr.P. art. 579( C) were met,

because Subpart C did not go into effect until August 1, 2013, after
commencement of the prosecution in this case. Given that Subpart C
imposes new substantive obligations on a defendant, and because those
obligations impact a defendant' s constitutional right to a speedy trial, it
does not apply retroactively. This is consistent with the Court' s prior
decision that La.C. Cr.P. art. 579( A)(3) could not be retroactively
applied. See State v. Groth, 85- 1528 ( La. 1986), 483 So. 2d 596, 599;
see also State v. Kraft, 86- 0155 ( La. App. 5 Cir. 1987), 501 So. 2d 313,
315 (" Moreover, since [ La.C. Cr.P. art. 579( A)(3)] provides for an
additional method for interruption of the prescriptive period, it bears
upon a defendant' s right to a speedy trial. Thus, [ it] should not be given
retroactive application in light of the constitutional safeguard of the
right to a speedy trial."). Though we maintain that the state has no duty
to take affirmative steps to locate an absent defendant, we also note that
in circumstances such as these, in which the state has become aware
whether by its own efforts or otherwise) of an absent defendant' s
location, that awareness is sufficient in a case initiated before Subpart
C' s effective date to trigger the commencement of a new limitations
period.
Thus, because the record supports a finding that the state was
aware of defendant' s custodial location by July 23, 2013, the limitations
period of La.C. Cr.P. art. 578 began to run anew on that date.

Stewart, 219 So. 3d at 309.

At the motion to quash hearing, the State conceded that Stewart controlled

the instant matter and informed the trial court, "[ s] o I think The Court is compelled,

pursuant to the Stewart case, to grant The Defendant' s Motion to Quash." The State

noted, however, that it thought the supreme court was wrong. Similarly, the State

concedes in its brief that the trial court and this court are likely bound by the

controlling law of Stewart. The State nevertheless suggests it is making a good faith

argument for the reversal of existing law so that, in a procedurally proper manner, it

may ask the Louisiana Supreme Court to reverse itself. In a footnote, the State notes,

this Court is not empowered to reverse rulings of the Louisiana Supreme Court.

The State is nevertheless compelled to present this argument to this Court in order

to preserve it for review at the Louisiana Supreme Court." The State in brief then

argues that the pronouncements of the Stewart Court notwithstanding, La. Code

Crim. P. art. 579( C) did not impact the defendant' s right to a speedy trial, that the

Stewart Court misconstrued the meaning of retroactivity, and that Article 579( 0) is

a procedural rule and therefore applies retroactively.

As the State correctly recognized, trial and appellate courts are bound to

follow decisions of the supreme court, particularly those dispositive of the precise

issue before us. See Oliver v. Magnolia Clinic, 2011- 2132 ( La. 3/ 13/ 12), 85 So. 3d

395 44. Consequently, following the precedent of Stewart, we find no error or abuse

of discretion in the trial court' s judgment granting the motion to quash.

AFFIRMED.

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