State of Louisiana v. Regan Preatto

STATE OF LOUISIANA * NO. 2021-KA-0315

VERSUS *
COURT OF APPEAL
REGAN PREATTO *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 534-657, SECTION “DIVISION D”
Judge Kimya M Holmes,
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Judge Edwin A. Lombard
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(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge
Paula A. Brown)

Jason Rogers Williams
DISTRICT ATTORNEY
ORLEANS PARISH
David B. LeBlanc
ASSISTANT DISTRICT ATTORNEY
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR THE STATE OF LOUISIANA

Holli Herrle-Castillo
LOUISIANA APPELLATE PROJECT
P. O. Box 2333
Marrero, LA 70073-2333

COUNSEL FOR DEFENDANT/APPELLANT

CONVICTIONS AND SENTENCES
VACATED; REMANDED.

DECEMBER 1, 2021

EAL
In this appeal, the defendant challenges his convictions as unconstitutional
RLB
pursuant to Ramos v. Louisiana, 590 U.S. ___, 140 S. Ct. 1390, 206 L.Ed. 2d 583
PAB (2020). The State does not dispute that, in accordance with current jurisprudence,

the convictions are unconstitutional.

Relevant Facts and Procedural History

On September 20, 2019, by ten-to-two votes, a non-unanimous jury found

Regan Preatto guilty on two counts: (1) third degree rape and (2) aggravated crime

against nature where the victim is under the age of eighteen and the offender is

biologically related to the victim. In February 2020, he was sentenced to twenty-

five years imprisonment in connection with his third degree rape conviction, to be

served without the benefit of probation, parole or suspension of sentence. With

respect to his aggravated crime against nature conviction, the court sentenced

defendant to twenty years imprisonment, specifying that the terms were to be

served concurrently. After a multiple-offender adjudication, the district court found

the defendant to be a fourth-felony offender, vacated the earlier sentences, and

sentenced the defendant on both counts to serve the remainder of his natural life,

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without the benefit of probation, parole, or suspension of sentence, in the custody

of the Department of Corrections.

Following sentencing, the district court granted the defendant’s oral motion

for appeal and request for appointment of the Louisiana Appellate Project on

appeal. This appeal was timely filed.

Discussion

At the time of the defendant’s trial and conviction in September 2019,

Louisiana law allowed non-unanimous jury verdicts in felony trials. In April 2020,

while the defendant’s appeal was pending, the United States Supreme Court

rendered its decision in Ramos v. Louisiana, setting forth a new constitutional rule:

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. In addition, Ramos invalidated the non-unanimous

convictions of defendants who preserved the issue for review in cases still on direct

appeal. Ramos, 140 S. Ct. at 1406-08; see also Griffith v. Kentucky, 479 U.S. 314,

328, 107 S. Ct. 708, 716, 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”).

Since Ramos, this court has consistently vacated convictions based on non-

unanimous jury verdicts in cases pending on appeal. See, e.g., State v. Myles,

2019-0965 (La. App. 4 Cir. 4/29/20), 299 So.3d 643; State v. Donovan, 2019-0722

(La. App. 4 Cir. 5/27/20), 301 So.3d 541; State v. Hunter, 2019-0901 (La. App. 4

Cir. 5/27/20), ___ So.3d ___, 2020 WL 2751914. Moreover, in this case, the

defendant specifically preserved the non-unanimous jury verdict as an issue for

review on appeal by filing a pre-trial motion to declare La. Code Crim. Proc. art.

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782(A) and La. Const. Art. 1 Sec. 17 unconstitutional for allowing non-unanimous

jury verdicts and by requesting jury instructions requiring a unanimous verdict.

Therefore, the defendant’s underlying convictions must be vacated.

The defendant also argues on appeal that the district court erred in

adjudicating him to be a fourth-felony offender because the State’s evidence failed

to prove the validity of the Texas guilty plea and, absent the Texas conviction,

defendant’s prior convictions fall outside the cleansing period. In light of the

defendant’s convictions being vacated, the defendant’s habitual offender

adjudication and sentences are necessarily vacated, rendering this issue moot. See

State v. DeGruy, 2020-0290, p. 6 (La. App. 4 Cir. 10/29/20), 307 So.3d 258, 263

(excessive sentence claim rendered moot in light of fact that convictions were

vacated pursuant to Ramos); State v. Barnes, 53,917, p. 5 (La. App. 2 Cir. 5/5/21),

318 So.3d 1100, 1103 (“Because the underlying conviction is vacated [pursuant to

Ramos], we further vacate [defendant’s] habitual offender adjudication and

sentence.”); State v. Bryant, 53,321 (La. App. 2 Cir. 9/1/21), ___ So.3d ___, 2021

WL 3889799 (same); State v. Warren, 2019-1410 (La. App. 1 Cir. 7/24/20), 2020

WL 4250839 (same).

Conclusion

After review of the record in light of the applicable law and arguments of the

parties, the defendant’s convictions, habitual offender adjudications, and sentences

are vacated. The matter is remanded to the district court for further proceedings.

CONVICTIONS AND SENTENCES VACATED; REMANDED.

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