State of Louisiana Versus Josue Hernandez-Romero

STATE OF LOUISIANA NO. 23-K-396

VERSUS FIFTH CIRCUIT

JOSUE HERNANDEZ-ROMERO COURT OF APPEAL

STATE OF LOUISIANA

September 13, 2023

Linda Wiseman
First Deputy Clerk

IN RE STATE OF LOUISIANA

APPLYING FOR SUPERVISORY WRIT FROM THE FIRST PARISH COURT, PARISH OF JEFFERSON,
STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JOHN J. LEE, JR., DIVISION "B", NUMBER
F2073607

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and John J. Molaison, Jr.

WRIT GRANTED

In this writ application, relator, the State, seeks review of the trial court’s

grant of the defendant’s motion to quash the bill of information filed against him.

For the following reasons, this writ application is granted.

On May 8, 2017, a bill of information was filed charging the defendant,

Josue Hernandez-Romero, with violating La. R.S. 14:98(A) and La. R.S.

14:98.1(A)(1), first offense driving while intoxicated (count 1); La. R.S. 32:301,

driving without required lighting (count 2); La. R.S. 32:52, operating a motor

vehicle without an operator’s license (count 3); and La. R.S. 32:58, failure to

maintain control of a motor vehicle (count 4). The defendant received appearance

bond notices to appear in court on June 27, 2017; however, he failed to appear.1

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The defendant’s traffic ticket, Uniform DWI Arrest Citation, issued on March 26, 2017, stated that his next court
appearance was June 26, 2017. However, the defendant’s appearance bonds, issued on March 27, 2017, stated that
his next court appearance was on June 27, 2017. It appears that June 27, 2017 is the correct arraignment date due to

23-K-396

On July 11, 2017, an attachment hearing was held, and the court issued an

attachment for the defendant’s arrest. On February 1, 2023, the defendant filed a

Motion to Quash and/or for Absolute Dismissal of Charges and a Motion to Re-set

and Recall Attachment. On the same day, the court signed an order recalling the

defendant’s attachment and set the motion for hearing. At the conclusion of the

hearing held on June 13, 2023, the court granted the defendant’s motion to quash.

The State objected to the court’s ruling and gave oral notice to take a writ. After

obtaining extensions of the return date, this writ application was timely filed.

In the motion to quash, the defendant states that he was arrested on March

26, 2017, and then transferred from state custody to immigration custody. He

remained “incarcerated with immigration” until August 24, 2017, when he

departed the United States. The defendant asserts that he was in immigration

custody on June 26, 2017, but he was not brought to court due to the State’s failure

to secure his presence. He claims that the State was aware that he was in

immigration custody because the State transferred him to immigration custody.

The defendant concludes that the State has failed to bring the matter to trial within

the one-year time limitation for misdemeanors as required by La. C.Cr.P. art. 578,

entitling him to an absolute dismissal. The defendant argues that the State cannot

meet its heavy burden of showing an interruption of the time limitations because

the State did not exercise due diligence in securing his presence. Citing Barker v.

Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and State v. Reaves,

376 So.2d 136 (La. 1979), the defendant further argues that his constitutional right

to a speedy trial entitles him to a dismissal of the charges.

At the hearing on the defendant’s motion to quash, the State argued that La.

C.Cr.P. art. 579 provides that the period of time limitations shall be interrupted if

the appearance bonds’ date being issued after the traffic ticket, and the docket ledger does not list the defendant’s
date of arraignment as June 27, 2017.
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the defendant fails to appear at any proceeding pursuant to proof of actual notice

which appears in the record. The State reiterated that on March 29, 2017, the

defendant signed a bond and agreed to appear in court on his arraignment date.

The State argued that it had no affirmative duty to search for the defendant who

failed to appear after notice pursuant to State v. Romar, 07-2140 (La. 7/1/08), 985

So.2d 722, and State v. Williams, 11-1231 (La. App. 4 Cir. 5/23/12), 95 So.3d 554,

writ denied, 12-1447 (La. 1/18/13), 107 So.3d 623. The State also highlighted that

the court’s record has no indication that the defendant was placed in the State’s

custody.

The defense introduced a Department of Homeland Security US

Immigration and Customs Enforcement (ICE), Voluntary Departure and

Verification of the Departure form and argued that the State was aware that the

defendant was in custody because when he was arrested in March of 2017, an ICE

hold was placed on him. The defendant contended that when he signed the bond

orders, he was released to “Immigration,” not released on bond. The defendant

asserted that on the dates of his arraignment, June 26 and June 27, 2017, he was at

an immigration detention in Chalmette. The defense argued that the State did not

“writ him to be here in Court,” and the State took no further action to try to

prosecute this matter in more than a year. Pursuant to La. C.Cr.P. art. 578, the

defense requested that the charges “ be quashed.” The defendant was deported and

in Honduras for five years, but is now back in the United States on parole. The

court granted the motion to quash without providing reasons.

In this writ application, the State argues that prescription was interrupted on

June 27, 2017, when the defendant failed to appear pursuant to actual notice on the

defendant’s appearance bonds. The State contends that the attachment was

satisfied on February 1, 2023, when the defendant’s motion to recall the

attachment was filed. Therefore, the State concludes that prescription commenced

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to run anew on February 1, 2023, and the one-year prescriptive period for the

defendant’s misdemeanors has not elapsed. The State asserts that even if the

defendant was “locatable” on June 27, 2017, the State had no duty to take steps to

locate the defendant pursuant to La. C.Cr.P. art. 579(C). The State also highlights

that the court’s record does not contain the notice requirements from the defendant

under La. C.Cr.P. art. 579(C)(1). The State also responds to the defendant’s

assertion in his motion to quash that his right to a speedy trial was violated under

Barker v. Wingo, supra, asserting that the delay in the defendant’s case was caused

by the defendant who voluntarily left the United States when he was facing

deportation.

La. C.Cr.P. art. 578(A)(3) provides that no trial shall be commenced nor any

bail obligation be enforceable “in misdemeanor cases after one year from the date

of institution of the prosecution.” The date of institution of prosecution is the date

when the indictment is returned or the bill of information is filed. La. C.Cr.P. art.

934(7); State v. Smith, 07-959 (La. App. 5 Cir. 3/11/08), 982 So.2d 831, 834.

Louisiana law allows for the interruption of time limitations. La. C.Cr.P. art.

579 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 of 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.

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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:

(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 accordance with La. C.Cr.P. art. 532(7), a motion to quash is the proper

procedural vehicle for claiming an untimely commencement of trial. La. C.Cr.P.

art. 581 provides that upon expiration of the time limitation, the court shall, on

motion of the defendant, dismiss the indictment, and there shall be no further

prosecution against the defendant for that criminal conduct. Once a defendant

shows that the State has failed to commence trial within the time periods mandated

by La. C.Cr.P. art. 578, the State bears a heavy burden to demonstrate that either an

interruption or a suspension of the time limit tolled prescription. State v.

Driever, 347 So.2d 1132, 1133 (La. 1977); State v. Otkins-Victor, 15-340 (La.

App. 5 Cir. 5/26/16), 193 So.3d 479, 530, writ denied sub nom. State ex rel.

Otkins-Victor v. State, 16-1495 (La. 10/15/18), 253 So.3d 1294. 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. State v. Brooks, 16-345 (La. App. 5 Cir. 12/28/16),

210 So.3d 514, 518.

In this case, the State instituted prosecution on May 8, 2017, by the filing of

the bill of information. Pursuant to La. C.Cr.P. art. 578(A)(3), trial on the

misdemeanors should have begun on or before May 8, 2018. The docket ledgers

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show that the defendant failed to appear at his arraignment on June 27, 2017,

pursuant to actual notice, proof of which appears on the defendant’s appearance

bonds. In addition, the defendant admits that he voluntarily departed the United

States on August 24, 2017. On February 1, 2023, the defendant filed a motion to

quash, highlighting that the State did not commence trial within the one-year time

limitation for misdemeanors. He argued that the time period was not interrupted

by actions on behalf of the defendant, and the State failed to meet its heavy burden

by not “exercising diligence in securing the presence of the defendant in

connection with these proceedings.”

However, La. C.Cr.P. art. 579(A)(3) “does not impose on the State the

affirmative duty to search for a defendant who has failed to appear for trial after

receiving actual notice.” Romar, 985 So.2d at 726.

Once the accused shows that the State has failed to bring him to
trial within the time period specified by La. C.Cr.P. art. 578, the State
bears a heavy burden of demonstrating that either an interruption or a
suspension tolled the statute of limitations… the State can meet this
burden by showing that the statute of limitations was interrupted by
defendant’s failure ‘to appear at any proceeding pursuant to actual
notice, proof of which appears in the record.’

State v. Schmidt, 21-491 (La. 1/28/22), 333 So.3d 411, 413.

Our review of this writ application and the defendant’s opposition to the writ

application indicates that the State met its burden of proving that the one-year time

limitation was interrupted under La. C.Cr.P. art. 579(A)(3), by showing that the

defendant failed to appear at his arraignment on June 27, 2017, pursuant to actual

notice, proof of which appears in the record. The record reveals that defendant

received actual notice by accepting and signing his appearance bonds, which

contained his arraignment date of June 27, 2017. Furthermore, the defendant

argues that the State took no further action to prosecute him, yet he admits that he

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voluntarily departed the United States on August 24, 2017, and remained outside

of the United States for five years.

For the foregoing reasons, this writ application is granted and the May 8,

2017 indictment is reinstated.

Gretna, Louisiana, this 13th day of September, 2023.

JJM
SMC
MEJ

7

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL 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

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23-K-396
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First Parish Court (Clerk)
Honorable John J. Lee, Jr. (DISTRICT JUDGE)
Darren A. Allemand (Relator) Thomas J. Butler (Relator)

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Ivan A. Orihuela (Respondent) Honorable Paul D. Connick, Jr. (Relator)
Attorney at Law John H. Raborn (Relator)
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Kenner, LA 70065 200 Derbigny Street
Gretna, LA 70053

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