Dasilva Ferreira, Jhon W. Versus State of Louisiana

DASILVA FERREIRA, JHON W. NO. 23-KH-111

VERSUS FIFTH CIRCUIT

STATE OF LOUISIANA COURT OF APPEAL

STATE OF LOUISIANA

March 28, 2023

Linda Wiseman
First Deputy Clerk

IN RE JHON W. DASILVA

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE FRANK A.
BRINDISI, DIVISION "E", NUMBER 20-333

Panel composed of Judges Robert A. Chaisson,
John J. Molaison, Jr., and Cornelius E. Regan

WRIT GRANTED IN PART; WRIT NOT CONSIDERED IN PART;
MATTER REMANDED

In this writ application, relator seeks review of the district court’s
January 17, 2023 ruling that found him guilty of contempt of court and sentenced
him to six months at hard labor to run consecutively with the sentence he is
currently serving.1

In his request for review, relator lists the following two errors: 1) The trial
court erred in finding him guilty of contempt of court for failing to answer
questions and invoking his right to remain silent and his right against self-
incrimination; and 2) The trial court erred in imposing a hard labor sentence for
contempt of court.

As an exhibit to his writ application, relator attached the minute entry from
January 17, 2023, which reflects that he was found guilty of contempt of court for
refusal to answer questions. Relator failed to provide this Court with any other
documents indicating the specific circumstances surrounding the finding of
contempt. La. C.Cr.P. art. 912.1(C)(1) provides that a defendant’s writ application
“shall be accompanied by a complete record of all evidence upon which the
judgment is based unless the defendant intelligently waives the right to cause all or
any portion of the record to accompany the application.” In light of this
deficiency, we cannot determine whether the contempt finding was appropriate.
See also Rule 4-5 of the Uniform Rules-Courts of Appeal, which sets forth the
items that should be contained in a writ application.

1
We note that relator filed a notice of appeal and titled the document filed in this Court as “Appellant’s Brief.”
However, in his prayer for relief, relator requests that this Court grant his writ. La. C.Cr.P. art. 912.1(B)(1)
provides, in part, that a defendant may appeal to the court of appeal from a judgment in a criminal case triable by a
jury. La. C.Cr.P. art. 912.1(C)(1) provides, “In all other cases not otherwise provided by law, the defendant has the
right of judicial review by application to the court of appeal for a writ of review.” In light of these provisions, we
construe relator’s notice of appeal as a notice of intent to file a writ application.

The January 17, 2023 minute entry further reflects that relator was sentenced
to six months at hard labor to run consecutively to the sentence he is currently
serving. The penalties for contempt are set forth in La. C.Cr.P. art. 25, which
provides, in part, as follows:

B. Except as otherwise provided in this Article, a court may punish a
person adjudged guilty of contempt of court in connection with a
criminal proceeding by a fine of not more than five hundred dollars,
or by imprisonment for not more than six months, or both.

The minute entry reflects that the trial court imposed relator’s sentence at
hard labor, which is not authorized by the penalty provision for contempt.
Accordingly, with regard to his sentence, we grant relator’s writ, vacate his six-
month sentence at hard labor, and remand the matter for resentencing. With regard
to his request for review of the contempt adjudication, we do not consider that
portion of his writ application due to the deficiencies in his writ application
previously noted. We recognize that upon resentencing, relator may file a writ
application in compliance with La. C.Cr.P. art. 912.1(C)(1) and Rule 4-5 of the
Uniform Rules-Courts of Appeal, seeking review of his contempt adjudication and
sentence.

Gretna, Louisiana, this 28th day of March, 2023.

RAC
JJM
CER

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.
CORNELIUS E. REGAN, PRO TEM 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 DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 03/28/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

23-KH-111
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Frank A. Brindisi (DISTRICT JUDGE)
Thomas J. Butler (Respondent)

MAILED
Jhon W. DaSilva #760907 (Relator)
Rayburn Correctional Center
27268 Highway 21
Angie, LA 70426