State of Louisiana Versus Viusqui J. Perez-Espinosa

STATE OF LOUISIANA NO. 23-KA-353

VERSUS FIFTH CIRCUIT

VIUSQUI J. PEREZ-ESPINOSA COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 17-415, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

May 22, 2024

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Scott U. Schlegel, and Timothy S. Marcel

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR
RESENTENCING
FHW
SUS
TSM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Kellie M. Rish
Richard L. Olivier

COUNSEL FOR DEFENDANT/APPELLANT,
VIUSQUI J. PEREZ-ESPINOSA
Jane L. Beebe

WICKER, J.

Defendant appeals his conviction and sentence for second degree murder.

For the following reasons, we affirm defendant’s conviction, vacate his sentence,

and remand for resentencing.

PROCEDURAL HISTORY

On May 4, 2017, a Jefferson Parish Grand Jury returned a bill of indictment

charging defendant, Viusqui J. Perez-Espinosa, with second degree murder in

violation of La. R.S. 14:30.1 (count one) and obstruction of justice in violation of

La. R.S. 14:130.1 (count two). Defendant proceeded to trial. On March 26, 2018,

a jury found him guilty of second degree murder by an eleven-to-one verdict and

guilty of obstruction of justice by a unanimous verdict. The trial court sentenced

defendant to life imprisonment at hard labor without the benefit of parole,

probation, or suspension of sentence on count one and forty years imprisonment at

hard labor on count two, with the sentences to be served consecutively.

Defendant appealed and, on April 10, 2019, this Court vacated his sentences

and remanded for resentencing, finding the trial court had been divested of

jurisdiction prior to denying his motion for new trial and for post-verdict judgment

of acquittal and imposing his sentences. State v. Perez-Espinosa, 18-576 (La. App.

5 Cir. 4/10/19), 269 So.3d 1119. On September 11, 2019, the trial court again

denied defendant’s motion and resentenced him to life imprisonment at hard labor

without benefit of parole, probation, or suspension of sentence on count one and

forty years imprisonment at hard labor on count two, with the sentences to run

consecutively.

Defendant filed a second appeal and, on September 22, 2020, this Court

affirmed his conviction and sentence for obstruction of justice (count two).

However, because the verdict for his second degree murder conviction (count one)

was not unanimous and the case was still on direct appeal, this Court vacated his

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second degree murder conviction and sentence, pursuant to Ramos v. Louisiana,

590 U.S. --, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020),1 and remanded to the trial

court for further proceedings. State v. Perez-Espinosa, 19-601 (La. App. 5 Cir.

9/22/20), 302 So.3d 598, 602.

On remand, defendant proceeded to trial once again and, on January 31,

2023, a jury unanimously found him guilty of second degree murder. On February

9, 2023, the trial court sentenced defendant to life imprisonment at hard labor

without the benefit of parole, probation, or suspension of sentence. The court

ordered the sentence to run consecutively to the forty-year sentence for obstruction

of justice and to a six-month sentence imposed for contempt. This is defendant’s

third appeal.

FACTS

At trial, the testimony revealed that the victim, Ives Alexis Portales-Lara

(referred to as “Ives”), was last seen on November 11, 2016, when a co-worker

dropped him off near his apartment after work. In the days that followed, his

friends and family reached out to the Kenner Police Department to help look for

him. The police subsequently found Ives’ blood in the apartment he lived in with

T.C.2 and defendant, and in defendant’s trunk. Parts of Ives’ body were later

discovered in the Reserve canal on December 29, 2016, and January 12, 2017.

T.C. testified that in January 2016, she and defendant were in a romantic

relationship and moved into an apartment together. However, in the summer of

2016, defendant moved into a nearby apartment with another woman. He

suggested that his co-worker, Ives, move into the apartment with T.C. to help pay

1
In Ramos, the United States Supreme Court held that the Sixth Amendment right to a jury trial, as
applied to the states by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant
of a serious offense. As a result, the State must retry any defendant convicted of serious offenses by non-
unanimous juries and whose cases are still pending on direct appeal. State v. Dumas, 21-143 (La. App. 5
Cir. 11/24/21), 330 So.3d 1263, 1264.
2
Initials are used when referencing this witness, because there are sex offense allegations included in the
facts presented. See La. R.S. 46:1844(W)(3), which allows this Court to identify a victim of a sex offense
by using his or her initials.

23-KA-353 2

the rent. T.C. recalled that after Ives moved in, they began to have a sexual

relationship but agreed not to tell anyone about it due to their age difference.

T.C. testified that in October of 2016, defendant wanted to move back into

the apartment. She initially refused, but on November 8, 2016, at Ives’ request,

she allowed defendant to move back into the apartment and sleep on the sofa.

Defendant wanted to get back together with T.C., but she was not interested. He

asked T.C. if she was having a relationship with Ives, and she said no. Defendant

expressed that he wanted Ives to leave the apartment.

T.C. testified that on the morning of Friday, November 11, 2016, defendant

suddenly appeared in her bedroom, grabbed her arms, said he wanted to be with

her, and violently threw her toward the bed. She threatened to scream, and he said,

“don’t you dare.” Defendant removed T.C.’s pants and underwear against her will,

performed oral sex on her, and “finishe[d] by masturbating.” Defendant then

apologized and left for work. T.C. testified that she sent a text message to Ives

about the incident.

T.C. returned to the apartment around 10:00 p.m. that night and saw

defendant lying on the sofa and looking toward Ives’ bedroom. She noticed that

Ives’ bedroom door was locked and his belongings were no longer in the

bathroom. T.C. asked defendant if Ives had left without leaving his key to the

apartment. Defendant replied that he went to Walmart and, when he returned, Ives

was gone.

Elena Calix, a co-worker of Ives and defendant, testified that on November

11, 2016, she drove Ives close to his apartment after work. She dropped him off

around 6:00 p.m. and did not see him again. She sent him voice messages that

night and the next day, but he did not respond.

Doloris Linares, who lived in a neighboring apartment, testified that on

November 11, 2016, defendant came home at around 6:00 p.m. and turned on his

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loud, air extractor until about 9:00 that night. On Sunday, November 13, 2016,

Ms. Linares noticed defendant was cleaning everything with bleach and

disinfectant. Defendant told her that he was helping T.C. out because she would be

tired after work.

Saidy Garcia, Ives’ ex-wife, testified that Ives would usually have their five-

year-old daughter on the weekends, but she could not get in touch with him. She

went to the apartment complex and Ms. Calix approached her and said Ives’ sister

had called her trying to locate him. Ms. Garcia stated that they called the police.

Officers from the Kenner Police Department performed two disposition

checks at the apartment that day, one around 12:30 p.m. and the other around 6:30

p.m. Defendant gave the officers permission to go into the apartment, and they

looked around but did not see any signs of a struggle or blood. They described

defendant as calm and cooperative. One of the officers contacted the National

Crime Information Center and entered Ives as a missing person.

Lieutenant Jeff Adams testified that on Tuesday, November 15, 2016, Ms.

Calix, Ms. Garcia, and Ives’ pastor went to the Kenner Police Department for help

in locating Ives. After reviewing the missing person report, Lieutenant Adams

went to the apartment along with Officer Francisco Alvarenga, Sergeant Bryan

Weiter, and Sergeant Adam Schouest. They spoke with defendant, who told them

that he did not know where Ives was, that it appeared he had moved out, and that

his property was still in his bedroom. Defendant led the officers to Ives’ bedroom

and opened it, but Lieutenant Adams stayed in the living room. Next to the sofa,

Lieutenant Adams noticed a red blood-like substance on the floor. He testified that

he began looking at the walls with more attention and noticed what appeared to be

blood splatter. Lieutenant Adams decided to get a search warrant for the

apartment.

23-KA-353 4

When the search warrant was executed, officers found a blood-like

substance on the floors, walls, and several other locations inside the apartment.

Sergeant Weiter testified that they found a black, plastic garbage bag containing

Ives’ personal property in his bedroom closet. Sergeant Weiter described the

property in the bag as personal effects someone would be unlikely to leave when

they moved out. There was another bag with identifying paperwork in it, such as

Ives’ passport, state ID, Honduran ID, title paperwork for his car, banking

paperwork, and paperwork related to his divorce. Officers later found a blood-like

substance in the trunk of defendant’s car.

Dr. Marcela Zozaya, an expert in forensic DNA analysis of bodily

components, testified that the blood-like substances in the apartment and

defendant’s trunk tested positive for blood and for Ives’ DNA.

T.C. and defendant agreed to go to the Kenner police complex to give

statements. Sergeant Weiter testified that T.C. said she was not sure where Ives

was and that it looked like he moved out. After she was confronted with a text

message, she told them that she was sexually assaulted by defendant on November

11, 2016.

Sergeant Weiter testified that defendant voluntarily gave a statement, which

was recorded. Officer Alvarenga, Sergeant Schouest, and Sergeant Weiter

conducted the interview with defendant. In the interview, defendant indicated that

the last time he saw Ives was at work on Friday afternoon, when Ives was waiting

for a ride home. He denied that he ever got into a disagreement with Ives, that

anything had happened with T.C. on Friday morning, and that he and Ives fought

about him allegedly sexually assaulting T.C. The officers informed defendant that

blood was found in the apartment and asked if there was a struggle, but defendant

denied anything had happened between him and Ives. He told the officers that Ives

was heavier than him and that he would not know how to move the body.

23-KA-353 5

Defendant also stated that he would be unable to clean all the blood by himself.

Notably, when the officers spoke to defendant at the apartment and during his

interview at the police station, defendant did not say that Ives attacked him, that he

had to kill Ives in self-defense, or that his death was an accident.

Major C.J. Destor with the St. John Parish Sheriff’s Office received a call on

December 29, 2016, from a fisherman on the Reserve canal who said he came

upon a human hand floating in the water. Officers met with the fisherman and

located a right arm and hand, but did not locate anything further.

Dr. Amanda Krausert, an expert in forensic pathology, prepared an autopsy

report on December 30, 2016, regarding a disarticulated right arm, which was later

determined to belong to Ives.3 Dr. Krausert testified that there was an incision

wound on the arm that was consistent with a sharp instrument, indicating the

person who disarticulated the arm knew what he was doing.4

On January 12, 2017, the St. John Parish Sheriff’s Office received a call

regarding the discovery of body parts near the Reserve canal. Officers responded

and found an upper thigh floating in the water. They also located a black bag

containing two legs and two feet, another part of a thigh, a bag containing a human

torso, and a bag of clothes. Dr. Zozaya testified that these body parts matched

Ives’ DNA.

Dr. Erin O’Sullivan, an expert in forensic pathology, performed an autopsy

on the torso, thighs, lower legs, and feet. She testified that the body parts were

disarticulated from the victim but did not show any other evidence of trauma or

natural disease. Dr. O’Sullivan testified that to disarticulate the body in this

manner, some amount of special skill or knowledge was required.

3
Dr. Zozaya testified she received tissue samples from a right arm, which were consistent with Ives’
DNA.
4
Ms. Calix testified that defendant told her that when he lived in Honduras, he worked as a butcher.
However, defendant testified that in Honduras, he was a sailor, not a butcher.

23-KA-353 6

Defendant testified that he and Ives had worked together. After he moved

out of the apartment, defendant suggested that Ives move in with T.C. in order to

help with the bills. Later, the three of them lived together. Defendant stated he

was unaware that T.C. and Ives had a relationship until the police interviewed him,

and he did not have any problems with Ives. Defendant also denied sexually

assaulting T.C.

Defendant testified that on November 11, 2016, he was washing his face in

the bathroom when Ives attacked him from behind with a knife. He testified that

Ives said, “you son of a – you mother f***r, I’m going to kill you.” Defendant

indicated that as they struggled with each other, Ives slashed his own aorta.

Defendant tried to stop the bleeding, but there was blood everywhere. He stated

that Ives fainted and did not have a pulse.

Upon realizing that Ives was dead, defendant wrapped him in blankets but

then realized he could not pick him up. Defendant testified that after removing

Ives’ clothes, he used the knife Ives attacked him with to cut his limbs off in the

living room. When asked if he had been convicted of obstruction of justice for

cutting up Ives’s body, disposing of his body, and cleaning the scene, defendant

replied, “That’s what I was told.” Defendant admitted that he initially lied to

everyone but insisted that he stayed to confront the situation.

LAW AND DISCUSSION

On appeal, defendant sets forth three assignments of error. In his first

assignment of error, defendant argues the trial court erred by admitting the facts

pertaining to his obstruction of justice conviction into evidence. He asserts that the

evidence of the dismemberment and disposal of Ives’ body was not so intertwined

with the facts pertaining to the second murder charge that the State could not

present its case without it. Defendant further argues that the gory nature of this

evidence distracted the jury from the actual issue at trial, which was whether he

23-KA-353 7

acted in self-defense when Ives attacked him. He further claims this evidence was

highly prejudicial, had no probative value, and should have been excluded under

La. C.E. art. 404(B).

The State responds that this evidence was properly admitted under the res

gestae doctrine. It contends that the evidence of obstruction of justice formed part

of an interrelated series of events, the presentation of which was necessary for

narrative momentum and cohesiveness in order for the State to accurately present

its case. It further asserts that defendant’s actions in the aftermath of the victim’s

death were highly relevant, provided insight into his state of mind, and were

indicative of his guilty knowledge.

On January 13, 2023, the State filed a Notice of Intent to Use Res Gestae

Evidence, asserting that it intended to use evidence of defendant’s obstruction of

justice at his second degree murder trial. On January 18, 2023, defendant filed an

Opposition to State’s Intention to Introduce “Res Gestae” Evidence and Motion in

Limine, asking the court to exclude the evidence of obstruction of justice at trial or

limit its use. The State subsequently filed a reply memorandum.

After considering the arguments of counsel at a hearing on January 19, 2023,

the trial court found the evidence of obstruction of justice was admissible. It

stated, “I think the facts of the obstruction are inextricably intertwined with the fact

of the homicide, also allowing the information to be presented to the jury under

404 B.” The trial court further stated that the motion in limine included in the

defense’s opposition was denied. Defendant objected to these rulings.5

In Louisiana, the fundamental rule governing the use of evidence of other

crimes, wrongs, or acts is that such evidence is not admissible to prove that the

accused committed the charged crime because he has committed other such crimes

5
After trial, defense counsel raised the same issue in his Motion for Post-Verdict Judgment of Acquittal
and for New Trial filed on February 2, 2023. The motion was addressed at a hearing on February 9, 2023,
and denied by the trial court.

23-KA-353 8

in the past. La. C.E. art. 404(B)(1); State v. Williams, 09-48 (La. App. 5 Cir.

10/27/09), 28 So.3d 357, 363, writ denied, 09-2565 (La. 5/7/10), 34 So.3d 860.

Evidence of other crimes, wrongs, or acts committed by the defendant is generally

inadmissible because of the “substantial risk of grave prejudice to the defendant.”

State v. Ard, 20-221 (La. App. 5 Cir. 4/28/21), 347 So.3d 1046, 1055.

However, while the State may not admit evidence of other crimes to prove

defendant is a person of bad character, evidence of prior crimes may be admitted if

the State establishes an independent relevance aside from proving the defendant’s

criminal character. State v. Brown, 17-348 (La. App. 5 Cir. 12/20/17), 235 So.3d

1314, 1323, writ denied, 18-158 (La. 11/5/18), 256 So.3d 276, cert. denied, -- U.S.

--, 139 S.Ct. 2033, 204 L.Ed.2d 233 (2019). Evidence of other crimes, wrongs, or

acts is allowed to prove motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake or accident, or when it relates to conduct, formerly

referred to as res gestae, that constitutes an integral part of the act or transaction

that is the subject of the present proceeding. La. C.E. art. 404(B)(1); State v.

Joseph, 16-349 (La. App. 5 Cir. 12/14/16), 208 So.3d 1036, 1046, writ denied, 17-

77 (La. 4/7/17), 218 So.3d 109.

Res gestae/integral act evidence constituting other crimes is deemed

admissible, because it is so nearly connected to the charged offense that the State

could not accurately present its case without reference to it. State v. Maize, 16-575

(La. App. 5 Cir. 6/15/17), 223 So.3d 633, 648, writ denied, 17-1265 (La. 4/27/18),

241 So.3d 306. Res gestae/integral act evidence in Louisiana acts as a rule of

narrative completeness to admit evidence without which the State’s case would

lose its cohesiveness. Brown, 235 So.3d at 1326.

A close proximity in time and location between the charged offense and the

other crimes evidence is required to ensure that the evidence of other crimes is not

admitted for the purpose of depicting defendant as a bad man or showing he acted

23-KA-353 9

in conformity with the other crime, but rather “to complete the story of the crime

for which he is on trial by proving its immediate context of happenings near in

time and place.” Maize, 223 So.3d at 648-49; State v. Colomb, 98-2813 (La.

10/1/99), 747 So.2d 1074, 1076.

In addition, the probative value of the other crimes evidence must outweigh

its prejudicial effect. La. C.E. art. 403. Maize, supra. Any inculpatory evidence is

“prejudicial” to a defendant, especially when it is “probative” to a high degree.

State v. Rodgers, 16-14 (La. App. 5 Cir. 10/26/16), 202 So.3d 1189, 1201, writs

denied, 16-2189 (La. 9/15/17), 225 So.3d 479, and 16-2093 (La. 1/29/18), 235

So.3d 1104. However, this prejudice limits the introduction of probative evidence

of prior misconduct only when it is unduly and unfairly prejudicial. Id. The term

“unfair prejudice,” as to a criminal defendant, speaks to the capacity of some

relevant evidence to lure the fact-finder into declaring guilt on a ground different

from the proof specific to the offense charged. State v. Frickey, 22-261 (La. App.

5 Cir. 3/1/23), 360 So.3d 19, 50, writ denied, 23-468 (La. 11/8/23), 373 So.3d 59.

The burden is on the defendant to show that he was prejudiced by the

admission of other crimes evidence. State v. Gatson, 21-156 (La. App. 5 Cir.

12/29/21), 334 So.3d 1021, 1038. Absent an abuse of discretion, a trial court’s

ruling on the admissibility of evidence pursuant to La. C.E. art. 404(B)(1) will not

be disturbed. Id.

In State v. Taylor, 01-1638 (La. 1/14/03), 838 So.2d 729, 741, cert. denied,

540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004), the defendant was

convicted of first degree murder. On appeal, he challenged the admissibility of

evidence concerning his participation in other crimes committed after the charged

offense and before his arrest several days later. Id. at 740-41. In the defendant’s

view, evidence of the crimes occurring after the offense did not constitute an

integral part of the crime charged and did not fall under any recognized exception

23-KA-353 10

set forth in La. C.E. art. 404(B)(1). The Louisiana Supreme Court found that the

evidence was clearly relevant for purposes other than simply proving the criminal

disposition of the defendant. For instance, the events following the murder

provided law enforcement with the first break in the investigation. Consequently,

the Supreme Court concluded that the State could not have logically presented its

case without telling the jury why the suspicions developed, and therefore, the

evidence was admissible under the res gestae doctrine. Id. at 743.

In the present case, the facts surrounding the obstruction of justice charge

were integral to show the progression of the investigation from a missing person

case to a homicide. These facts were also necessary to explain the condition of the

body parts recovered by the police. The officers found blood in the apartment

while searching for a missing person, and defendant initially denied knowing what

happened to the victim or where he was. Later, defendant testified the knife that

killed Ives was the same knife used immediately after to dismember the body. The

evidence of the obstruction of justice was so nearly connected to the charged

offense that the State could not accurately present its case without reference to it.

Additionally, although the obstruction of justice evidence was prejudicial, it

did not outweigh its probative value. When a defendant in a homicide prosecution

asserts a claim of self-defense, the burden is on the State to prove beyond a

reasonable doubt that the defendant did not act in self-defense. State v. Sly, 23-60

(La. App. 5 Cir. 11/2/23), 376 So.3d 1047, 1073, writ denied, 23-1588 (La.

4/23/24), --- So.3d ---, 2024 WL 1737007. Evidence of flight, concealment, or

attempt to avoid apprehension is relevant and admissible to prove consciousness of

guilt from which the trier of fact may infer guilt. State v. Davis, 18-485 (La. App.

5 Cir. 4/10/19), 269 So.3d 1123, 1132, writ denied, 19-716 (La. 11/12/19), 282

So.3d 229.

23-KA-353 11

In this case, defendant asserted that he was acting in self-defense when Ives

accidentally cut his own throat. The evidence of defendant’s actions in concealing

and disposing of Ives’ body was relevant to show defendant’s guilty knowledge

and/or specific intent, and to rebut defendant’s defense that he was acting in self-

defense. See State v. Huls, 95-541 (La. App. 1 Cir. 5/29/96), 676 So.2d 160, 177,

writ denied, 96-1734 (La. 1/6/97), 685 So.2d 126, in which the First Circuit found

that the defendant’s activities after he murdered his ex-wife, such as concealing her

body and disposing of the murder weapon, were consistent with a finding of

specific intent to kill and guilty knowledge. See also State v. Richards, 06-1553

(La. App. 3 Cir. 5/2/07), 956 So.2d 160, 171, writ denied, 07-1129 (La. 12/14/07),

970 So.2d 529, in which the Third Circuit recognized that a defendant’s

concealment of the victim’s body is inconsistent with a self-defense argument. See

also State v. Murray, 36,137 (La. App. 2 Cir. 8/29/02), 827 So.2d 488, writ denied,

02-2634 (La. 9/5/03), 852 So.2d 1020; and State v. Paterno, 01-2585 (La. App. 1

Cir. 6/21/02), 822 So.2d 141, 148.

Based on our finding that the other crimes evidence constituted an integral

part of the murder investigation and that this evidence was relevant to counter

defendant’s claim of self-defense, we find no error in the trial court’s

determination that the evidence of obstruction of justice was admissible at

defendant’s trial for second degree murder. Accordingly, we find no merit in

defendant’s first assignment of error, and we affirm his conviction for second

degree murder.

Defendant’s second and third assignments of error pertain to his sentence.

In his second assignment of error, defendant asserts the trial court erred when it

imposed an excessive sentence by ordering his life sentence for second degree

murder to be served consecutively to his forty-year sentence for obstruction of

justice. In his third assignment of error, defendant contends that the trial court

23-KA-353 12

failed to observe the twenty-four-hour delay required by La. C.Cr.P. art. 873 after

denying his motion for new trial, and he did not waive this time delay prior to

sentencing. He asserts his sentence for second degree murder was illegally

imposed and must be vacated. Considering these arguments, we first address the

third assignment of error.

La. C.Cr.P. art. 873 provides that “[i]f a motion for a new trial, or in arrest of

judgment, is filed, sentence shall not be imposed until at least twenty-four hours

after the motion is overruled. If the defendant expressly waives a delay provided

for in this article or pleads guilty, sentence may be imposed immediately.”

On February 4, 2023, defendant filed a Motion for Post-Verdict Judgment of

Acquittal and for New Trial. At a hearing on February 9, 2023, the trial court

denied the motion. Following victim impact statements presented at this hearing,

the trial court sentenced defendant to life imprisonment at hard labor without the

benefit of parole, probation, or suspension of sentence, to run consecutively with

his forty-year sentence for obstruction of justice and a six-month sentence imposed

for contempt.

Absent a showing of prejudice, when a defendant does not waive the delay

afforded in La. C.Cr.P. art. 873, and does not challenge the penalty imposed, the

error may be harmless. State v. Wilson, 99-105 (La. App. 5 Cir. 7/27/99), 742

So.2d 957, 959, writ denied, 99-2583 (La. 2/11/00), 754 So.2d 935. However,

when a defendant challenges the penalty imposed and the sentence is not

mandatory, the failure to observe the twenty-four-hour delay mandated in La.

C.Cr.P. art. 873 cannot be considered harmless error. State v. Bienvenu, 14-541

(La. App. 5 Cir. 12/16/14), 167 So.3d 63, 70, writ denied, 15-98 (La. 11/20/15),

180 So.3d 314; State v. Chester, 19-363 (La. App. 5 Cir. 2/3/21), 314 So.3d 914,

989, writ denied, 21-350 (La. 6/8/21), 317 So.3d 321. Generally, when a

defendant challenges a non-mandatory sentence and the delay is not waived, the

23-KA-353 13

defendant’s sentence must be vacated and the matter remanded for resentencing.

State v. Bibbins, 13-875 (La. App. 5 Cir. 4/9/14), 140 So.3d 153, 169, writs denied,

14-994 (La. 12/8/14), 153 So.3d 439, and 14-1015 (La. 12/8/14), 153 So.3d 440.

In the present case, defendant did not waive the twenty-four-hour sentencing

delay, and he challenges both his sentence and the failure to observe the delay in

this appeal. Although defendant received a mandatory life sentence for the second

degree murder conviction pursuant to La. R.S. 14:30.1, the consecutive nature of

his sentence was not mandatory. Accordingly, given these circumstances, we

vacate defendant’s sentence and remand the matter for resentencing.

Considering our decision to vacate defendant’s sentence and remand for

resentencing, we find that defendant’s second assignment of error, challenging the

consecutive nature of his sentence as excessive, is moot.

ERRORS PATENT

The record was reviewed for errors patent according to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175

(La. App. 5 Cir. 1990). No errors requiring corrective action were noted.

DECREE

For the foregoing reasons, we affirm defendant’s conviction for second

degree murder, vacate his sentence, and remand to the trial court for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED;
REMANDED FOR RESENTENCING

23-KA-353 14

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
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

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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
MAY 22, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KA-353
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE)

MAILED
JANE L. BEEBE (APPELLANT) HONORABLE PAUL D. CONNICK, JR.
ATTORNEY AT LAW (APPELLEE)
LOUISIANA APPELLATE PROJECT DISTRICT ATTORNEY
POST OFFICE BOX 463 KELLIE M. RISH (APPELLEE)
ADDIS, LA 70710 RICHARD L. OLIVIER (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053