State of Louisiana Versus John Elmer

STATE OF LOUISIANA NO. 24-KH-180

VERSUS FIFTH CIRCUIT

JOHN ELMER COURT OF APPEAL

STATE OF LOUISIANA

May 29, 2024

Susan Buchholz
Chief Deputy Clerk

IN RE JOHN ELMER

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT,
PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
CONNIE M. AUCOIN, DIVISION "C", NUMBER 17,740

Panel composed of Judges Marc E. Johnson,
Stephen J. Windhorst, and John J. Molaison, Jr.

WRIT GRANTED FOR A LIMITED PURPOSE

Relator, John Elmer, seeks review of the 29th Judicial District Court’s
March 19, 2024 ruling denying his Motion to Clarify Sentence or Correct an Illegal
Sentence. Specifically, the court refused the requests to correct Relator’s sentence
for count six by “includ[ing] the possibility of parole” and to order the DOC to
“compute a parole date.” We grant the writ for a limited purpose for the following
reasons.

In January 2019, a non-unanimous jury found Relator guilty of molestation
of a juvenile under the age of thirteen (counts three through five), and unanimously
found him guilty of molestation of a juvenile over the age of thirteen but under
seventeen (count six). State v. J.E., 19-478 (La. App. 5 Cir. 9/2/20), 301 So.3d
1262. Relator was found not guilty on counts one, two, seven, and eight. Id. On
June 17, 2019, the trial court sentenced Relator on count six to twenty years
imprisonment at hard labor without eligibility to have the conviction set aside or
dismissed under La. C.Cr.P. art. 893, and on counts three through five to ninety-
nine years imprisonment at hard labor on each count to be served without benefit
of probation, parole, or suspension of sentence. Id. The trial court also ordered
counts three, four, and five to run concurrently with each other and consecutively
to count six. Id. On September 2, 2020, this Court affirmed Relator’s conviction
and sentence on count six, vacated his convictions and sentences on counts three
through five pursuant to Ramos v. Louisiana, 590 U.S. --, 140 S.Ct. 1390, 206
L.Ed.2d 583 (2020), and remanded the matter to the trial court for further
proceedings. Id. On February 9, 2021, the Louisiana Supreme Court denied
Relator’s writ applications. State v. Elmer, 20-1227 (La. 2/9/21), 310 So.3d 175,

and State v. Elmer, 20-1131 (La. 2/9/21), 310 So.3d 182, cert. denied, -- U.S. --,
141 S.Ct. 2831, 210 L.Ed.2d 948, 210 L.Ed.2d 948 (2021).

At the time of the instant offense, count six - La. R.S. 14:81.2 provided1, in
pertinent part:
B. (2) Whoever commits the crime of molestation of a juvenile, when
the victim is thirteen years of age or older but has not yet attained the
age of seventeen, and when the offender has control or supervision
over the juvenile, shall be fined not more than ten thousand dollars, or
imprisoned, with or without hard labor, for not less than five nor more
than twenty years, or both. The defendant shall not be eligible to have
his conviction set aside or his prosecution dismissed in accordance
with Code of Criminal Procedure Article 893.

The UCO provided by Relator correctly indicates that his sentence for count
six is twenty years in accordance with the June 17, 2019 sentencing transcript but
Relator contends that “subsequent action” by this court (i.e., this court vacated
Relator’s convictions and sentences on counts three through five on appeal)
rendered the UCO “inaccurate.” At the hearing, the trial court expressed concern
about whether a new UCO was issued after this court’s opinion in Elmer, supra. In
response to the court’s inquiry about the notation that appears on the UCO, the
prosecutor replied that he was unaware of who wrote “wrong charge” on the UCO
or made the notation “vacated” next to Relator’s convictions for counts three
through five. The trial court then expressed concern that a new UCO should have
been created as the UCO “was no longer valid” with respect to counts three
through five. The State requested that the district court “deny the motion and, at a
minimum, expressly state that the 20-year sentence is not to be served with
eligibility for parole, probation, or suspension of sentence.” The State also argued
“Based on the pattern established by the sentences for Counts 3, 4 and 5, this Court
has every reason to believe that the trial court had no intention to grant parole on
the shortest of the sentences.” Counsel for Relator did not appear at the hearing.
At the conclusion of the hearing, the trial court denied Relator’s request that the
sentence for count six “include the possibility of parole” and further denied
Relator’s request to order the DOC to “compute a parole date.”

In this writ application, Relator requests that this court remand this case to
the trial court to “restore parole eligibility” as to count six. However, as shown
above, La. R.S. 14:81 B(2) does not provide for the denial of benefits such as
parole and the UCO correctly reflects Relator’s sentence of twenty years in
conformity with the June 17, 2019 sentencing transcript. Therefore, no corrective
action as to count six is required by this court given Relator’s UCO does not
contain any parole restriction on count six. Moreover, parole eligibility is
determined under La. R.S. 15:574.4, et seq. “Once an inmate has fulfilled the
terms of the sentence imposed by the district court, the Department of Corrections
determines whether the inmate is eligible to be considered for parole.” See State v.
Chiasson, 17-1195, 2017 WL 5952331 (La. App. 1 Cir. 11/30/17). Thus, neither
we nor the district court are authorized to determine Relator’s parole eligibility.

Because Relator’s case does not appear in the 29th Judicial District Court’s
database, this court cannot determine if a new UCO was created after this court’s
opinion in Elmer, supra, vacated relator’s convictions and sentences on counts

1
See State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518, 522 (It is well-settled that in most instances, the
penalty of the offense is determined as of the date of the offense.).

three through five. Accordingly, to eliminate any further confusion over Relator’s
UCO, the writ application is granted for the limited purpose of ordering the 29th
Judicial District Court to correct the UCO to reflect Relator’s conviction and
sentence after this court’s opinion in Elmer, supra, and direct its Clerk of Court to
transmit the corrected UCO to the appropriate authorities and the Department of
Corrections’ legal department in accordance with La. C.Cr.P. art. 892(B)(2), if it
has not already done so. See State v. Allen, 19-377 (La. App. 5 Cir. 4/30/20), 296
So.3d 1096, 1106-07, writ denied, 20-795 (La. 12/8//20), 306 So.3d 431.

Gretna, Louisiana, this 29th day of May, 2024.

MEJ
SJW
JJM

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

(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 05/29/2024 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:

24-KH-180
E-NOTIFIED
29th Judicial District Court (Clerk)
Honorable Connie M. Aucoin (DISTRICT JUDGE)
John J. Mason (Relator)

MAILED
Hon. Joel T. Chaisson, II (Respondent)
District Attorney
Twenty-Ninth Judicial District Court
Post Office Box 680
Hahnville, LA 70057