State Of Louisiana v. Johnny Mitchell Skipper

NOT FOR PUBLICATION

1 STATE OF LOUISIANA
w

A L) COURT OF APPEAL

FIRST CIRCUIT

2023 KA 0088

STATE OF LOUISIANA

VERSUS

JOHNNY MITCHELL SKIPPER

JUDGMENT RENDERED:
SEP 15 2023

Appealed from The Twenty -First Judicial District Court
Parish of Livingston • State of Louisiana
Docket Number 42, 074 • Division E

The Honorable Brenda Bedsole Ricks, Presiding Judge

Bertha M. Hillman COUNSEL FOR APPELLANT
Louisiana Appellate Project DEFENDAM— Johnny Mitchell
Covington, Louisiana Skipper

Scott M. Perrilloux COUNSEL FOR APPELLEE
District Attorney State of Louisiana
Brett Sommer
Assistant District Attorney
Amite, Louisiana

BEFORE: WELCH, HOLDRtDGE, AND WOLFS, JJ.

C S.

WELCH, I

The State of Louisiana charged the defendant, Johnny Mitchell Skipper, by

amended bill of information with two counts of indecent behavior with a juvenile,

violations of La. R.S. 14: 81( A)(2), and one count of obstruction of justice, a

violation of La. R.S. 14: 13 0. L' The defendant entered a plea of not guilty. Following

a trial by jury, the jury found the defendant guilty as charged on all counts. The

defendant filed a motion in arrest ofjudgment, motion for new trial, and motion for

post -verdict judgment of acquittal. Fallowing a hearing, the trial court denied all

three motions.

The trial court sentenced the defendant to seven years at hard labor on each

count of indecent behavior with a juvenile ( counts one and two), and five years at

hard labor for obstruction of justice ( count three), and ordered all sentences to run

consecutively to one another, without benefit of parole, probation, or suspension of

sentence. After his adjudication as a fourth -felony habitual offender, the trial court

vacated the defendant' s original sentences and sentenced the defendant to life

imprisonment.

The defendant now appeals,
alleging that his enhanced sentence is

unconstitutionally excessive. The defendant also argues that the record contains

patent errors affecting his substantial rights. For the following reasons, we vacate

the defendant' s original sentences and his enhanced sentence, and we remand this

matter to the trial court for resentencing, with instructions.

The State of Louisiana originally charged the defendant by bill of information with two counts
of computer- aided solicitation of a minor, violations of La. R.S. 14: 81. 3, and one count of
obstruction of justice, a violation of La. R. S. 14: 130. 1. The bill of information was amended on or
about February 14, 2022, changing counts one and two to two counts of indecent behavior with a
juvenile, violations of La. R. S. 14: 81( A)(2), and keeping count three, obstruction of justice, a
violation of La. R. S. 14: 130. 1, unchanged.

2

FACTS

On September 30, 2020, while incarcerated in the Livingston Parish Detention

Center (" LPDC") on unrelated charges, the defendant and A.M.z spoke via a video

call through the LPDC' s communication system for inmates. A.M. is a female friend

of one of the defendant' s cousins. During this call, A.M. admitted to the defendant

that she was only sixteen years old, despite previously telling him that she was

older.'
At this point in the conversation, the defendant became agitated, walked away

from the tablet, and ended the call. Shortly thereafter, they spoke on another video

call and again discussed A.M.' s age.

Then, on October 6, 2020, the defendant talked to A.M. via a video call using

another inmate' s account. During this call, the defendant repeatedly asked A.M. to

expose herself to him. A.M. refused the defendant' s requests many times, but

ultimately exposed one of her breasts to him.

On October 9, 2020, the defendant and A.M. spoke again via a video call

through yet another inmate' s account. During this call, the defendant again asked

A.M. to expose herself to him numerous times. Despite telling him no at first, she

eventually exposed her entire chest to him. After this, the defendant told A.M. to

show him her vagina, and tried to explain to her how she could do so without other

people seeing. A.M. refused, and the defendant repeatedly called her a "[ p* ssy]" and

told her to " stop playing."

Detective Steven Lovett with the Livingston Parish Sheriffs Office testified

that he was investigating the defendant. While monitoring the defendant' s

communications, Detective Lovett came across the defendant' s conversations with

A.M. and, based on the content of the videos, obtained an arrest warrant for the

2 In accordance with La. R.S. 46: 1844( W), the victim, who is a minor, will be referred to by her
initials to protect her identity.

3 A.M.' s date of birth is July 26, 2004. The defendant was twenty- four years old at the time of
these communications with A.M.

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defendant for two counts of computer- aided solicitation of a minor, violations of La,

R.S. 14: 81. 3. The defendant was arrested and re -booked into the LPDC on

November 12, 2020. 14e again spoke to A.M. on the video call system on November

24, 2020, and tried to convince her to disregard any " court summons" and refuse to

appear in court because as long as she did not appear in court, he would be able to

go home.

After a jury trial, the jury found the defendant guilty as charged on the

amended bill of information, of two counts of indecent behavior with a juvenile,

violations of La. R.S. 14: 81( A)( 2), and one count of obstruction of justice, a

violation of La. R.S. 14: 130. 1. The trial court sentenced him to seven years at hard

labor on both counts of indecent behavior with a juvenile and five years at hard labor

for the obstruction ofjustice count, and ordered all sentences to run consecutively to

one another, without benefit of probation, parole, or suspension of sentence, After

the State filed a multiple offender bill of information, the trial court adjudicated the

defendant a fourth -felony offender, vacated his original sentences, and sentenced the

defendant to life imprisonment.

ERRORS PATENT REVIEW

Under the authority of La. C. Cr.P. art. 920( 2), this Court routinely reviews

appellate records for patent error. State v. Sylve, 2022- 1104 ( La. App. 1st Cir.

2/ 24/ 23), 2023 WL 2198829, * 3 ( unpublished). A patent error is one that is

discoverable by a mere inspection of the pleadings and proceedings and without

inspection of the evidence. La. C.Cr.P. art. 920( 2). Our review of the record reveals

two patent errors: ( 1) the trial court prematurely granted the defendant' s motion for

appeal and, thus, was divested of jurisdiction; and ( 2) after the defendant was

adjudicated a fourth -felony habitual offender, the trial court failed to provide a

sentence as to each conviction, i.e., the trial court failed to specify which sentence

or sentences were being enhanced.

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Additionally, the defendant' s brief on appeal alleges two patent errors,

namely: ( 1) the notice of appeal was prematurely filed and signed prior to sentencing

and prior to the habitual offender proceeding; and ( 2) neither the minute entry nor

the transcript of the habitual offender proceeding indicate which sentence was

vacated by the trial court, and the trial court did not provide written reasons for its

determination.

The defendant was convicted on May 17, 2022. On May 25, 2022, the

defendant filed a motion in arrest ofjudgment, motion for new trial, and motion for

post -verdict judgment of acquittal ( collectively, " post -trial motions"), which were

all set for hearing on June 15, 2022. Following the hearing, the trial court denied all

three motions. The defendant also filed a motion for appeal on May 25, 2022, and

the trial court granted the motion for appeal on June 1, 2022, prior to the June 15,

2022 hearing on the post -trial motions and the defendant' s sentencing.' The trial

court issued a notice of appeal on June 6, 2022.

Premature Appeal

It is well- settled that a defendant can appeal from a final judgment of

conviction only where a sentence has been imposed. La. C. Cr.P. art. 912( C)( 1);

State v. Chapman, 471 So.2d 716 ( La. 1985) ( per curiam); State v. Morgan, 2020-

1327 ( La. App. I" Cir. 10! 8121), 2021 WL 4704796, * 2 ( unpublished), writ denied,

2021- 01923 ( La. 2122122), 333 So. 3d 444. Moreover, pursuant to La. C.Cr.P. art.

916, the trial court is divested ofjurisdiction upon the entering of the order ofappeal.

Once the trial court is divested of jurisdiction, it may take only certain specified

actions, none of which include ruling on post -trial motions or imposing a sentence.

See La. C.Cr.P. art. 916; State v. Woods, 2019- 200 (La. App. 5' Cir. 12/ 26/ 19), 288

So. 3d 256, 258. Thus, after the trial court granted the defendant' s motion for appeal

4 In accordance with La. C. Cr.P. art. 873, the defendant waived the sentencing delays.

R

on June 1, 2022, the trial court was divested ofjurisdiction to rule on the defendant' s

post -trial motions or to impose a sentence.

However, the trial court' s denial of the defendant' s post -trial motions is not at

issue in the instant appeal; in fact., the defendant does not challenge his convictions,

only his habitual offender sentence. Thus, we find that the denial of the defendant' s

post -trial motions after the trial court was divested ofjurisdiction was harmless error

where the defendant does not challenge the denial or substance of these motions on

appeal. See State v. Robinson, 98- 0005 ( La. App. 4th Cir. 9/ 29/ 99), 743 So. 2d 814,

815- 16. 5 Cf. Woods, 288 So. 3d at 259 ( remand is proper when the trial court was

already divested ofjurisdiction at the time it denied the defendant' s motion for new

trial, the substance of which he then raised on appeal.); and Cf. State v. Johnson,

2013- 75 ( La. App. 5"' Cir. 10/ 9/ 13), 128 So. 3d 325, 329.

Ori inal Sentencing Error

In this case, the trial court sentenced the defendant after it signed the order of

appeal and no longer had jurisdiction to impose a sentence. While a defendant may

only appeal from a final judgment of conviction where a sentence has been imposed,

see La. C. Cr.P. art. 912( C)( 1), the jurisprudence holds that when a sentence has been

imposed after a motion for appeal has been granted, the appeal will not be dismissed

where doing so would simply result in a delay of the appellate process and hinder

the defendant' s right to appeal. See State v. Lampkin, 2012- 391 ( La. App. 5th Cir.

5/ 16/ 13), 119 So. 3d 158, 162, writ denied, 2013- 2303 ( La. S/ 23/ 14), 140 So. 3d 717;

State v. Brooks, 93- 1767 ( La. App. 4th Cir. 2/ 25/ 94), 633 So. 2d 816, 818, writ

denied, 94- 1939 ( La. 913/ 96), 678 So.2d 548. See also State v. Jackson, 2015- 1710

La. App. 1St Cir. 4/ 15/ 16), 2016 WL 1535170, * 3 n. l ( unpublished). As will be

5 While the motion for new trial in Robinson was also untimely filed after an order of appeal had
been signed, this does not alter the premise that the improper denial of a post -trial motion after the
trial court was divested of jurisdiction is harmless when the substance of the motions is not the
subject of the appeal.

0

discussed more fully below, we are vacating the defendant' s enhanced sentence and

remanding for resentencing. Thus, to also vacate and remand the defendant' s

original sentences will cause no delay to the appellate process, nor hinder the

defendant' s right to appeal. We further note that although the trial court vacated the

defendant' s original sentences upon his adjudication as a fourth -felony habitual

offender and imposition of an enhanced sentence, the trial court did not have

jurisdiction to do so because the motion for appeal had been granted and the order

of appeal had already been signed. Accordingly, we vacate the defendant' s original

sentences and remand this matter on the basis that the trial court imposed the

defendant' s original sentences after the trial court was divested of jurisdiction.

Enhanced Sentencing Error

Although the trial court was divested of jurisdiction once the order of appeal

was signed, the Louisiana Code of Criminal Procedure specifically provides that the

trial court may impose a habitual offender sentence after an appeal is granted without

affecting the jurisdiction of the court of appeal. See La. C.Cr.P. art. 916( 8).

Nonetheless, there is an error with respect to the defendant' s enhanced sentence. The

defendant was found guilty of two counts of indecent behavior with a juvenile and

one count of obstruction of justice. However, the habitual offender pleadings and

amended bill of information fail to specify which of the defendant' s convictions

were being enhanced. Likewise, at the habitual offender sentencing hearing, neither

the trial court nor the prosecutor identified which convictions were being enhanced.

The minutes and transcript also do not reflect which convictions were enhanced,

while the amended commitment order suggests that all three convictions were

enhanced to life sentences. At the hearing, the trial court merely stated that: " The

Court will vacate the sentence and impose the sentence of life imprisonment." The

minutes also state: " The Court vacated the previous sentence and imposed a life

sentence with the Department of Corrections at hard labor." Thus, it is unclear

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whether the trial court imposed an enhanced sentence as to all or a portion of the

defendant' s convictions.

If the trial court imposed enhanced sentences as to all of the defendant' s

convictions, then the defendant' s convictions for two counts of indecent behavior

with a juvenile and one count of obstruction ofjustice require the imposition of three

separate sentences. A sentencing error occurs when a trial court, in sentencing for

multiple counts, does not impose a separate sentence for each count. State v. Mayo,

2012- 0707 (La. App. 1` t Cir. 6/ 7/ 13), 2013 WL 2490361, * 1 ( unpublished). If a court

fails to impose a sentence for each of two or more convictions, or fails to specify

which of the sentences is being enhanced under the habitual offender statute, the

sentence or sentences must be set aside and the matter remanded for the defendant

to be resentenced. State v. Murphy, 2016- 0901 ( La. App. 1st Cir. 10/ 28/ 16), 206

So. 3d 219, 232.

CONCLUSION

In the absence of valid sentences, the defendant' s appeal is not properly before

this court. Therefore, we do not consider the defendant' s assignments of error, as

this appeal is not properly before the court. We vacate the defendant' s original

sentences imposed by the trial court, as the trial court was divested ofjurisdiction to

impose those sentences since the motion for appeal had been granted and the order

of appeal had been signed, and we remand the matter to the trial court for

resentencing.

We likewise vacate the incorrect enhanced sentence imposed by the trial court,

and we remand the matter to the trial court for resentencing, with instructions that

the trial court impose a separate enhanced sentence or sentences for each conviction.

We further order the trial court to specifically provide which sentences are being

enhanced pursuant to the defendant' s adjudication as a habitual offender. After

resentencing, the defendant may perfect a new appeal if he so chooses.

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DECREE

ORIGINAL SENTENCES AND ENHANCED SENTENCE VACATED;
REMANDED FOR RESENTENCING WITH INSTRUCTIONS.

STATE OF LOUISIANA STATE OF LOUISIANA

COURT OF APPEAL
VERSUS
FIRST CIRCUIT

lwr,
JOHNNY MITCHELL SKIPPER NO. 2023 KA 0088

WOLFE, J., concurring in part and dissenting in part.

I concur in vacating the defendant' s habitual offender sentence due to the trial

court' s failure to specify the sentence being enhanced. See State v. Murphy, 2016-

0901 ( La. App. 1st Cir. 1012$ 116), 206 So. 3d 219, 232. Although the trial court erred

procedurally by signing the order of appeal before imposing the underlying

sentences and then entertaining post -trial motions, the imposition of sentence cured

the defect of a premature motion for appeal. See State v. Hunter, 201.3- 1377 ( La.

App. 1st Cir. 11/ 21/ 13), 2013 WL 12120318 ( unpublished). Therefore, I

respectfully disagree with the necessity of adopting the harmless error analysis

applied by the Fourth and Fifth Circuits, particularly where the trial court retained

jurisdiction to sentence the defendant as a habitual offender. See La. Code Crim. P.

art. 916( 8). Finally, in imposing the habitual offender sentence, the trial court

vacated the originally imposed sentences; therefore, I disagree with again vacating

the original sentences.