State of Louisiana Versus Burnell Gordon

STATE OF LOUISIANA NO. 22-KA-67

VERSUS FIFTH CIRCUIT

BURNELL GORDON COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ST. JAMES, STATE OF LOUISIANA
NO. 75,32, DIVISION "C"
HONORABLE KATHERINE TESS STROMBERG, JUDGE PRESIDING

November 02, 2022

MARC E. JOHNSON
JUDGE

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Stephen J. Windhorst

CONVICTIONS AND SENTENCES VACATED;
REMANDED
MEJ
RAC
SJW

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Ricky L. Babin
Lindsey D. Manda
Donald D. Candell

COUNSEL FOR DEFENDANT/APPELLANT,
BURNELL GORDON
Katherine M. Franks

JOHNSON, J.

Defendant, Burnell Gordon, appeals his convictions and sentences for

manslaughter and possession of a firearm by a convicted felon by a non-unanimous

jury in the 23rd Judicial District Court for the Parish of St. James. For the

following reasons, we vacate his convictions and sentences and remand the matter

for further proceedings.

FACTS AND PROCEDURAL HISTORY

On October 4, 2016, a 23rd Judicial District Court Grand Jury indicted

defendant, Burnell Gordon, with second degree murder in violation of La. R.S.

14:30.1 (count one) and possession of a firearm by a convicted felon in violation of

La. R.S. 14:95.1 (count two).

On January 29, 2019, the case proceeded to trial, and on January 31, 2019,

the jury found defendant guilty of manslaughter on count one by a vote of 11 to 1,

and guilty as charged on count two.1 On April 29, 2019, the district court

sentenced defendant to the Department of Corrections for thirty years on count one

and to the Department of Corrections for twenty years without the benefit of

parole, probation, or suspension of sentence, and a fine of $5,000 on count two,

with the sentences to run concurrently. Defense counsel did not verbally notice his

intent to appeal but filed a written motion for appeal on June 3, 2019 that was

denied as untimely on June 26, 2019.

On October 28, 2019, Defendant admitted the allegations of the multiple bill

alleging that he was a third felony offender as to count one. That same day, defense

counsel filed a written “Motion for Reconsideration of Judgment to Deny

Defendant’s Motion for Appeal and Designation of the Record,” arguing that he

had attempted to timely file the motion for appeal by fax on May 28, 2019, but

1
The jury was polled per Defendant’s request, but the judge advised the jurors that they would each
receive one form on which they were to indicate whether they “voted in favor of those verdicts or not”.
Both the State and Defendant state in their briefs that the verdicts for both counts were non-unanimous.

22-KA-67 1

later learned from the Clerk of Court that they were having technical difficulties.

The district court denied Defendant’s motion for reconsideration. On November 6,

2019, the district court denied Defendant’s “Notice of Intent to Seek Supervisory

Writs with the Louisiana Fifth Circuit Court of Appeals” regarding the district

court’s denial of his motion to appeal filed on June 3, 2019 as untimely.

On January 27, 2020, Defendant was adjudicated a third felony offender and

sentenced to the Department of Corrections for forty-five years at hard labor on

count one and to the Department of Corrections for twenty years without the

benefit of parole, probation, or suspension of sentence and a $5,000 fine on count

two, with the sentences to run concurrently. At the end of the hearing, defense

counsel orally noticed his intent to appeal. On September 9 and 20, 2021,

Defendant filed an application for post-conviction relief (APCR) and motion for

out-of-time appeal pursuant to State v. Counterman, 475 So.2d 336 (La. 1985). On

September 23, 2021, the district court granted Defendant an out-of-time appeal to

appeal his original convictions and sentences and also appointed Louisiana

Appellate Project to represent Defendant.

ASSIGNMENTS OF ERROR

Defendant contends that his convictions by a non-unanimous jury are in

violation of Ramos v. Louisiana, 590 U.S. - - , 140 S.Ct. 1390, 206 L.Ed.2d 583

(2020). Further, he argues that he should not be retried for the offense of second

degree murder on remand as this Court determined that following the setting aside

of a non-unanimous jury verdict for a lesser included offense the defendant could

not face trial for a greater offense than that for which the original verdict was

rendered. See State v. Gasser, 21-255 (La. App. 5 Cir. 12/16/21), 335 So.3d 342,

writ granted, 22-64 (La. 3/2/22), 333 So.3d 823, affirmed, 22-64 (La. 6/1/22), 2022

WL 2339163.

22-KA-67 2

LAW AND DISCUSSION

In the instant case, Defendant was charged with second degree murder

(count one) and possession of a firearm by a convicted felon (count two). Since the

punishments for the offenses in counts one and two were necessarily confinement

at hard labor, a jury of twelve persons was required. See La. Const. Art. I, § 17; La.

C.Cr.P. art. 782. A conviction of second degree murder, in violation of La. R.S

14:30.1, results in a sentence of life imprisonment at hard labor without benefit of

parole, probation or suspension of sentence. A conviction of possession of a

firearm by a convicted felon, in violation of La. R.S. 14:95.1, has a sentencing

range of five to twenty years, without benefits, and a fine of one to five thousand

dollars.

In Ramos, the United States Supreme Court found that the Sixth Amendment

right to a jury trial, as incorporated against the states by the Fourteenth

Amendment, requires a unanimous verdict to convict a defendant of a serious

offense.2 The Court concluded, “There can be no question either that the Sixth

Amendment’s unanimity requirement applies to state and federal criminal trials

equally ... So if the Sixth Amendment’s right to a jury trial requires a unanimous

verdict to support a conviction in federal court, it requires no less in state court.”

Ramos, 140 S.Ct. at 1397. Pursuant to Ramos, Louisiana must retry defendants

who have been convicted of serious offenses by non-unanimous juries whose cases

are still pending on direct review. See State v. Spottsville, 20-99 (La. App. 5 Cir.

12/23/20), 308 So.3d 1240; State v. Kelly, 19-425 (La. App. 5 Cir. 7/31/20), 299

So.3d 1284; State v. Rivas, 19-378 (La. App. 5 Cir. 5/21/20), 296 So.3d 1198. The

State acknowledges that the Supreme Court’s holding in Ramos requires that in all

criminal cases, the conviction must be by a unanimous verdict and the record in the

2
For purposes of the Sixth Amendment, federal law defines serious offenses as offenses subject to
imprisonment over six months. State v. Harrell, 19-371 (La. App. 5 Cir. 7/8/20), 299 So.3d 1274, 1283.

22-KA-67 3

instant case reflects that defendant’s jury convictions were non-unanimous.

Because the verdicts for these serious offenses were not unanimous and the case is

still on direct review, Defendant is entitled to a new trial on counts one and two

pursuant to the holding in Ramos. See State v. Alexander, 20-95 (La. App. 5 Cir.

11/3/21), 330 So.3d 1179, 1182; State v. Dumas, 21-143 (La. App. 5 Cir.

11/24/21), 330 So.3d 1263, 1264. Therefore, we vacate Defendant’s convictions

and sentences on counts one and two and his multiple offender stipulation and

enhanced sentence on count one.

We pretermit discussion of Defendant’s second assignment of error

regarding whether he should be retried for the offense of second degree murder.

The issue is premature as the State has not indicated that it would seek to re-try

Defendant for second degree murder. See Alexander, supra at 1182, n.3.

DECREE

Considering the foregoing, we vacate Defendant’s sentences and convictions

on counts one and two, and his multiple offender stipulation and enhanced

sentence on count one. The matter is remanded for further proceedings consistent

with this opinion.

CONVICTIONS AND SENTENCES VACATED;
REMANDED

22-KA-67 4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 2, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-KA-67
E-NOTIFIED
23RD JUDICIAL DISTRICT COURT (CLERK)
HON. KATHERINE TESS STROMBERG (DISTRICT JUDGE)
DONALD D. CANDELL (APPELLEE) LINDSEY D. MANDA (APPELLEE) KATHERINE M. FRANKS (APPELLANT)
GRANT L. WILLIS (RESPONDENT)

MAILED
HONORABLE RICKY L. BABIN
(APPELLEE)
DISTRICT ATTORNEY
23RD JUDICIAL DISTRICT COURT
POST OFFICE BOX 1899
GONZALES, LA 70707