State Of Louisiana v. Durelle Cornelius Jones

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

2020 KA 0451

STATE OF LOUISIANA

VERSUS

DURELLE CORNELIUS JONES

DEC 0 2 2020
Judgment rendered,

On Appeal from the
Twenty -First Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
No. 1201973, Div. " A"

The Honorable Jeffrey S. Johnson, Judge Presiding

Scott M. Perrilloux Attorneys for Plaintiff/Appellee
District Attorney State of Louisiana
Zachary Daniels
Assistant District Attorney
Livingston, Louisiana

Patricia Parker Amos
Assistant District Attorney
Amite, Louisiana

Lieu T. Vo Clark Attorney for Defendant/Appellant
Mandeville, Louisiana Durelle Cornelius Jones

BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ.

HOLDRIDGE, J.

The defendant, Durelle Cornelius Jones, was charged by grand jury

indictment with two counts of armed robbery with the use of a firearm ( counts I

and II), violations of La. R.S. 14: 64 and La. R.S. 14: 64. 3; two counts of second

degree kidnapping ( counts III and IV), violations of La. R.S. 14: 44. 1( A)(5);

aggravated rape' ( count V), a violation of La. R.S. 14: 42; and two counts of

attempted first degree murder ( counts VI and VII), violations of La. R.S. 14: 27 and

La. R.S. 14: 30( A)(2). He initially pled not guilty on all counts. Thereafter, he pled

not guilty and not guilty by reason of insanity on all counts. Count VII was

dismissed prior to trial.

Following a jury trial, the defendant was found guilty as charged on counts I

VI by a non -unanimous jury by a vote of ten of twelve jurors. 2 The defendant

was sentenced to ninety-nine years of imprisonment at hard labor without benefit

of probation, parole, or suspension of sentence on each of counts I and II. He was

sentenced to forty years of imprisonment at hard labor without benefit of

probation, parole, or suspension of sentence on each of counts III and IV. On

count V, he was sentenced to serve the remainder of his natural life at hard labor

without benefit of probation, parole, or suspension of sentence. On count VI, he

was sentenced to fifty years of imprisonment at hard labor without benefit of

probation, parole, or suspension of sentence. The district court ordered that all of

the sentences would run concurrently with one another.

1 2015 Louisiana Acts Numbers 184, § 1 and 256, § 1 renamed the offense of aggravated rape as
first degree rape.

2 The minutes indicate that, on count IV, the defendant was found guilty of " Second Degree
batter." The transcript, however, reflects that, on count IV, the defendant was found guilty of

second degree kidnapping as charged. Where there is a discrepancy between the minutes and the
transcript, the transcript prevails.
State v. Shurley, 2014- 0850 ( La. App. 1 Cir. 6/ 5/ 15), 2015
WL 3613186, * 1 n. 1, writ denied, 2015- 1246 ( La. 6/ 17/ 16), 192 So. 3d 775.
2

The defendant appeals, and in his sole assignment of error, he challenges his

conviction by a non -unanimous jury verdict. For the following reasons, we vacate

the conviction and sentence and remand to the district court.

CONSTITUTIONALITY OF NON -UNANIMOUS VERDICT

In his sole assignment of error, the defendant contends he was convicted by

only ten of twelve jurors on counts I - VI, and thus, the verdicts violated his rights to

a jury trial, due process, and equal protection under the Sixth and Fourteenth

Amendments to the United States Constitution as recognized by Ramos v.

Louisiana, 590 U.S. _, 140 S. Ct. 1390, 206 L.Ed.2d 583 ( 2020). He further argues

that the error is patent on the face of the record.

The State argues Ramos has no application in this matter because " appellant' s

conviction became final in 2016." The State relies upon State v. Patterson, 572

So.2d 1144, 1148 ( La. App. 1 Cir. 1990), writ denied, 577 So. 2d 11 ( La. 1991), in so

arguing.

In Patterson, the defendant filed an out -of t-ime appeal seeking the benefit

of the United States Supreme Court' s decision in Batson v. Kentucky, 476 U.S.

79, 106 S. Ct. 1712, 90 L.Ed.2d 69 ( 1986), which was decided prior to the

3
defendant being granted the out -of t-ime appeal. This court found the defendant

failed to file his motion for appeal within the time delay provided in La. C. Cr.P.

art. 914, and thus, his conviction and sentence " became final at the moment that

time period expired." Patterson, 572 So. 2d at 1148. This court therefore held the

evidentiary standard pronounced in Swain v. Alabama, 380 U.S. 202, 85 S. Ct.

3 Batson changed the evidentiary burden placed on a defendant who claims that he has been denied
equal protection through the State' s exercise of peremptory challenges to exclude members of his
race. Batson v. Kentucky, 476 U. S. 79, 96- 98, 106 S. Ct. 1712, 1723- 24, 90 L.Ed.2d 69 ( 1986).
The holding in Batson was retroactive and to be applied to all cases pending on direct review or not
yet final at the time Batson was decided. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct.
708, 716, 93 L.Ed.2d 649 ( 1987). See also State v. Patterson, 572 So.2d 1144, 1147- 48 ( La. App.
1 Cir. 1990), writ denied, 577 So. 2d 11 ( La. 1991).

3

824, 13 L.Ed.2d 759 ( 1965), which standard governed prior to Batson, applied in

the defendant' s case because:

t]he circumstance of defendant' s filing on May 16, 1989, ( more than
ten years after his conviction and sentence became final) an application
for post conviction relief in the district court requesting an out -of t-ime
appeal which was granted by the court on October 30, 1989, ( more than
eleven years after the finality of defendant' s conviction and sentence)
does not in any way alter the fact that the conviction and sentence
became final prior to the decision in Batson.

Patterson, 572 So. 2d at 1148.

Herein, the order allowing the defendant an out -of t-ime appeal was signed on

August 13, 2019. The order notes that the defendant previously filed a motion for

appeal with designation of the record on June 23, 2016, and the motion for appeal

was granted on June 27, 2016. Unlike the Patterson case, the defendant' s original

motion for appeal was timely pursuant to La. C. Cr.P. art. 914(B)( 2), which provides,

in pertinent part, that a motion for appeal must be " made no later than:... ( 2) [ t]hirty

days from the ruling on a motion to reconsider sentence filed pursuant to Article

881. 1...." The defendant was sentenced on June 14, 2016; he timely moved for

reconsideration of the sentence on June 23, 2016; and the motion for reconsideration

was denied. See La. C. Cr.P. art. 881. 1( A)( 1). The defendant' s motion for appeal

was timely under La. C. Cr.P. art. 914(B)( 2).

The out -of time
- appeal in this matter was granted " due to the Motion for

Appeal previously filed by Defendant being inadvertently passed over." The district

court gave no reasons as to why the defendant' s motion for appeal was " passed

over." However, the failure of the district court, the minute clerk, or the clerk of

court to perform their functions in connection with the filing of a timely criminal

appeal does not affect the validity of the appeal. See La. C.Cr.P. arts. 915( A),

915( B), & 915. 1( B). See also State v. Ross, 2006- 1328 ( La. App. 4 Cir. 3/ 14/ 07),

955 So. 2d 167, 170, writ denied, 2007- 1027 ( La. 5/ 9/ 08), 980 So.2d 681; State v.

CI

Ambeau, 2005- 0711 ( La. App. 4 Cir. 2/ 15/ 06), 930 So. 2d 54, 60 ( When delays were

largely attributable to the criminal justice system, the State' s motion to dismiss the

defendant' s appeal as untimely was denied because " substantial justice requires our

disposition of this appeal as timely."). Accordingly, as the record reveals that the

defendant moved for and was granted a timely appeal, the State' s assertion that the

defendant' s conviction was final in 2016, premised on the belief that the defendant' s

appeal is an out -of t-ime appeal, is without merit.4

The State raises an alternative argument that it " seeks to use the current

response as a vehicle for objection to the [ district] court procedure." The State asks

that the " matter should be remanded for further proceedings and the [ district] court

should treat the stand- alone motion as an application for post -conviction relief "5

The fact that the defendant was initially granted a timely appeal likewise refutes

the State' s alternative argument objecting to the district court' s action of allowing

the defendant an out -of t-ime appeal without notice or an evidentiary hearing to

prove the defendant' s entitlement to an out -of t-ime appeal. Moreover, we note that

on August 13, 2019, notice of the out -of time
- appeal was sent to the State. The State

does not allege, and the record does not indicate, that it objected in the district court

to the granting of the out -of t-ime appeal. The State' s arguments are without merit.

Returning to the merits of the defendant' s appeal, as previously stated, on

counts I - VI, the defendant was convicted by a vote of ten of twelve jurors.

4 However, even if this was an out -of t-ime appeal, the jurisprudence holds that the state criminal
judgment does not become final until the out -of t-ime appeal is resolved. See State v. Fournier, 395 So. 2d 749, 750 ( La. 1981); see also Johnson v. Cain, 68 F. Supp. 3d 593, 603 ( E.D. La. 2014)
w]hen a petitioner is granted an out -of time
- appeal, his state criminal judgment is not final until
the date on which the state decision on an out -of time
- appeal became final by the conclusion of
direct review or the expiration of the time for seeking such review. See Jimenez v. Quarterman, 555 U.S. 113, 121, 129 S. Ct. 681, [ 686,] 172 L.Ed.2d 475 ( 2009).").

5 Although the State argues that the defendant filed a " motion" for an out -of t-ime appeal, no
such motion appears in the record. Notably, the district court in its order simply states that it
hereby orders that Defendant be allowed to lodge an out of time appeal" ( emphasis added), but
the order does not refer to any motion filed by the defendant.

R

In the recent decision of Ramos, 140 S. Ct. at 1397, 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, as incorporated by the Fourteenth Amendment of the

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

serious offense in both federal and state courts. The Ramos Court further noted that

its ruling applied to those defendants convicted of felonies by non -unanimous

verdicts whose cases are still pending on direct appeal. 6 Ramos, 140 S. Ct. at 1406.

Thus, where the defendant' s conviction was not final when Ramos was decided, the

holding of Ramos applies. State v. Bueso, 2019- 01675 ( La. 6/ 22/ 20), 297 So. 3d 719

per curiam) ( citin Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93

L.Ed.2d 649 ( 1987)).

Accordingly, this assignment of error has merit. The convictions and

sentences on counts I - VI are vacated, and this case is remanded to the district court

for further proceedings.

CONVICTIONS AND SENTENCES VACATED; REMANDED.

6 In Crehan v. Louisiana, U. S. , 140 S. Ct. 2713, 206 L.Ed. 2d 850 ( 2020), Justice Alito
concurred in the judgment with the understanding that in cases in which the United States
Supreme Court grants, vacates, and remands in light of Ramos, " the [ United States Supreme
Court] is not deciding or expressing a view on whether the question was properly raised below
but is instead leaving that question to be decided on remand." In Crehan, this court had
previously noted the defendant made " a pro forma challenge to the constitutionality of his non -
unanimous guilty verdict." State v. Crehan, 2018- 0746 ( La. App. 1 Cir. 11/ 5/ 18), 2018 WL
5785479, * 9, writ denied, 2018- 2024 ( La. 4/ 15/ 19), 267 So. 3d 1. 124, cert. granted and jmt.
vacated, 140 S. Ct. 2713. We are aware that a constitutional challenge may not be considered by
an appellate court unless it was properly pleaded and raised in the district court below. Vallo v.
Gayle Oil Co., Inc., 94- 1238 ( La. 11/ 30/ 94), 646 So. 2d 859, 864- 65. Further, while there is no
single procedure for attacking the constitutionality of a statute, it has long been held that the
unconstitutionality of a statute must be specially pleaded and the grounds for the claim
particularized. First, a party must raise the unconstitutionality in the district court; second, the
unconstitutionality of a statute must be specially pleaded; and third, the grounds outlining the
basis of unconstitutionality must be particularized. State v. Hatton, 2007- 2377 ( La. 7/ 1/ 08), 985
So. 2d 709, 719.

The defendant failed to follow the proper procedure for preserving his challenge to the
non -unanimous verdicts in this matter. However, the error is reviewable as patent error. See
State v. Boyd, 2019- 00953 ( La. 6/ 3/ 20), 296 So. 3d 1024 ( per curiam). Further, the transcript and

minutes reflect that only ten of twelve jurors concurred in the verdict.. Accordingly, this claim is
properly before this court.
6