State of Louisiana v. John Wesley Perry, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-566

STATE OF LOUISIANA

VERSUS

JOHN WESLEY PERRY, JR.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 284,807
HONORABLE PATRICIA E. KOCH, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and James T. Genovese,
Judges.

AFFIRMED.

James C. Downs
District Attorney
Thomas R. Willson
Assistant District Attorney
Ninth Judicial District
701 Murray Street
Alexandria, LA 71301
(318) 473-6650
COUNSEL FOR APPELLANT:
State of Louisiana

Darrell K. Hickman
P. O. Box 48
Alexandria, LA 71309-0048
(318) 448-6353
COUNSEL FOR DEFENDANT/APPELLEE:
John Wesley Perry, Jr.

PETERS, J.

This appeal is one of four1 now before us involving the same defendant and

the same issue. In this appeal, the State of Louisiana (state) seeks reversal of the

trial court’s grant of a motion to quash the bill of information filed against the

defendant, John Wesley Perry, Jr., thereby dismissing the charge of possession of

marijuana, a violation of La.R.S. 40:966. For the following reasons, we affirm the

grant of the motion to quash the bill of information.

The basic facts surrounding this criminal charge are not in dispute. The

defendant was arrested and charged with the offense of possession of marijuana

with the intent to distribute. The date of the offense was July 30, 2006, and he

posted a $5,000.00 bond on August 14, 2006, to secure his release from custody.

Although prepared on what appears to be a standard appearance bond form, the

copy of that bond in the record reflects that the defendant appears as both the

principal and surety and lists his address as 2323 Olive Street in Alexandria,

Louisiana. While it does not designate a court appearance date to answer for the

charge, it does provide that the “named principal will appear at all stages of the

proceedings in the Ninth Judicial District Court to answer that charge or any

related charge, and will at all times hold himself amenable to the orders and

process of the Court[.]” At the bottom of the form appears an attestation clause

signed by the defendant without any further certification. That attestation clause

contains a signature line for the approval of the Sheriff and/or Judge, but both of

1
There were actually five cases before the trial court when it rendered judgment in all
five granting the defendant’s motion to quash. These bore Ninth Judicial District Court Docket
Numbers 284,807; 286,892; 286,893; 288,318; and 288,319. The issues involving Docket
Number 284,807 are before us in this appeal raised in Docket Number 13-566, while Docket
Number 13-567 of this court addresses the issues raised in Docket Number 286,893; Docket
Number 13-568 of this court addresses the issues raised in Docket Number 286,319; and Docket
Number 13-569 of this court addresses the issues raised in Docket Number 286,318. The state
did not appeal the judgment in Docket Number 286,892.

these lines are blank.

In an October 30, 2006 bill of information, the state charged the defendant

with only having committed the offense of possession of marijuana on or about

July 30, 2006, a misdemeanor violation of La.R.S. 40:966, instead of the felony

“intent to distribute” violation for which he was arrested. The record contains a

copy of an unsigned document entitled “NOTICE OF ARRAIGNMENT” dated

December 27, 2006, purporting to notify the defendant of his January 19, 2007

arraignment date for the charge. The copy bears a heading reflecting that it was

generated by the Rapides Parish Sheriff’s Office; contains an unsigned signature

line at the bottom of the page; lists the defendant’s address as 2236 B West

Sycamore Street, Alexandria, Louisiana; and includes the instruction to the

defendant that “FAILURE TO APPEAR SHALL RESULT IN BOND

FORFEITURE AND AN ARREST WARRANT FOR YOUR IMMEDIATE

ARREST AND FOR CONTEMPT OF COURT.” The copy of the notice in the

record is followed by a copy of an unsigned letter also bearing the Rapides Parish

Sheriff’s Office letterhead, dated December 28, 2006, but addressed to the

defendant at the 2323 Olive Street address listed on the surety bond rather than the

West Sycamore Street address listed on the other notice document. This letter

again purports to instruct the defendant that his arraignment is scheduled for

January 19, 2007, and explains the consequences of a failure to appear.

The defendant did not appear for his arraignment on January 19, 2007, and

the trial court issued a bench warrant and bond forfeiture for his failure to appear.

On that same day, the trial court executed a written bond forfeiture judgment. The

address for the defendant listed in the judgment is the Olive Street address. The

trial court record also contains a certificate from the Rapides Parish Clerk of Court,

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asserting that on March 12, 2007, that office forwarded written notice of the bench

warrant and bond forfeiture judgments rendered on January 19, 2007, to the

defendant at the Olive Street address. However, this certificate does not assert that

the defendant was provided with a copy of the judgment itself.

Some years later, the defendant was arrested on the bench warrant. 2 He

entered a not guilty plea to the charge now before the court at his August 10, 2012

arraignment, and filed his motion to quash the bill of information on October 8,

2012. The trial court heard the motion on November 27, 2012.3 With regard to

evidence presented at the hearing on the motion, counsel for the state advised the

trial court that “I have an exhibit which we’re going to file in globo.” The hearing

transcript does not elaborate on the content of the in globo exhibit, but at a later

time in the hearing, counsel for the state made the following comment:

Yes, and I’m going to – I’m going to submit, Your Honor, the
minutes – the notice to Mr. Perry that was sent to 2323 Olive Street,
the – also the bond information which does have that as his address.
And I’m going to submit that as State’s Exhibit 1 in globo and I will
submit as my memorandum, State versus Williams, which is a new
case out of the Fourth Circuit and it’s 544 So.3d - no, 95 So.3d 584.

Despite this language, the record contains no exhibit, nor does it contain any

reference to the trial court ordering any exhibit introduced. The trial court took all

of the pending matters before it under advisement, and, by written reasons dated

February 8, 2013, granted the defendant’s motion to quash in all five cases.

In its reasons for judgment granting the motion to quash as to all the pending

matters, the trial court stated the following:

2
Although the defendant’s brief in support of the motion to quash asserts that he was
taken into custody on the outstanding bench warrant on July 31, 2012, after having been arrested
for another unrelated offense, the trial record contains no evidence of how and when the
defendant returned to the custody of the state for the possession of marijuana offense.
3
The motion to quash was filed in all of the cases before us at this time, and, because the
issue was the same in all of the cases, the trial court considered the individual motions in a single
hearing.
3

Jurisprudence is clear that the mailing of the arraignment date
to the Defendant’s address does not constitute actual notice. The State
mailed the notice of the arraignment and did not use any other method
of service. Since there was no actual notice, the prescription period
for which to commence trial was not interrupted or suspended.
Defendant was billed and mailed notice of the arraignment
approximately one year after the arrests and the State now seeks to
commence trial nearly 5 years after the Bill of Information was filed.
The Court finds that the two year time limitation for the institution of
prosecution has expired and the State has not met its burden of proof
showing that the [sic] this time limitation has been interrupted or
suspended.

On March 4, 2013, the trial court issued an order granting the motion to

quash and dismissing the charge pending against the defendant. In response, the

state perfected this appeal, wherein it asserted three assignments of error: 1) the

trial court erred in finding there was no duty on the part of a defendant released on

bond to provide the court with his/her current address; 2) the trial court erred in

finding a defendant released on bond is required to receive actual notice of the date

of any court appearance set in his/her case; and 3) the trial court erred in its

interpretation of La.Code Crim.P. art. 579, when it decided that only actual notice

would suffice for interruption of the time limitations provided by La.Code Crim.P.

art. 578.

OPINION

Louisiana Code of Criminal Procedure Article 578 provides:

A. Except as otherwise provided in this Chapter, no trial shall
be commenced nor any bail obligation be enforceable:

(1) In capital cases after three years from the date of institution
of the prosecution.

(2) In other felony cases after two years from the date of
institution of the prosecution; and

(3) In misdemeanor cases after one year from the date of
institution of the prosecution.

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B. The offense charged shall determine the applicable
limitation.

In the matter now before us, the state charged the defendant with possession of

marijuana, first offense, which is a misdemeanor. La.R.S. 40:966(E), La.R.S.

14:2(4) and (6). Thus, the state had one year from institution of prosecution to

commence trial. La.Code Crim.P. art. 578(A)(3). Institution of prosecution began

when the state filed the bill of information on October 30, 2006. La.Code Crim.P.

art. 934(7). The next step in the prosecution was the defendant’s arraignment on

August 10, 2012. Thus, clearly the defendant was not tried within the time limits

of La.Code Crim.P. art. 578(A)(3).

The rule, repeatedly upheld by this court, is that once a
defendant . . . shows that his trial was not commenced within [one
year] after the date of the institution of the prosecution, the State
“bears the heavy burden of showing that it is excused from trying the
accused on a charge later than the period mandated by [La.C.Cr.P.
art.] 578.” State v. Groth, 483 So.2d 596, 599 (La.1986); State v.
Amarena, 426 So.2d 613, 617 (La.1983); State v. Devito, 391 So.2d
813, 816 (La.1980) (on reh’g). This heavy burden “requires the State
to exercise due diligence in discovering the whereabouts of the
defendant as well as taking appropriate steps to secure his presence
for trial once it has found him.” State v. Chadbourne, 98-1998, p. 1
(La.1/8/99), 728 So.2d 832. The State may discharge this burden by
demonstrating that a ground for interruption exists under La.C.Cr.P.
art. 579 . . . .

State v. Bobo, 03-2362, pp. 4-5 (La. 4/30/04), 872 So.2d 1052, 1055-56 & n.2.

With regard to interruption of the time period in which to begin prosecution,

La.Code Crim.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 reasons beyond the control of the state; or
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(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.

In its reasons for judgment, the trial court stated that the appearance bond

executed by the defendant “did not contain any provision in which the Defendant

was instructed that he would be under any obligation to keep his address current

with the agency or division in the judicial system.” The state, in its first

assignment of error argues that the trial court erred in concluding that a defendant

released on bond has no obligation to provide the court with his current address.

While we agree with the state that La.Code Crim.P. art. 322(A)4 does require a

defendant released on bond to file in the criminal proceedings a written declaration

changing the address listed on the appearance bond document, we find that the trial

court’s error in this regard is irrelevant to the issue before this court on appeal.

Simply stated, there is no evidence in the record to suggest that the defendant

changed his address from the address listed on the appearance bond document.

Thus, we need not consider this assignment of error.

In its last two assignments of error, the state asserts that the trial court erred

in concluding that a defendant released on bond must receive actual notice of the

date of any court appearance and that actual notice is required to interrupt the time

limitations provided by La.Code Crim.P. art. 578. This issue arises because the

Rapides Parish Sheriff’s Office uses the United States postal service to mail

4
In 2006, Louisiana Code of Criminal Procedure Article 322(A) read as follows:

The defendant when signing a bail bond shall write under
his signature the address at which he resides. The address shall be
conclusively presumed to continue for all proceedings on the bond,
until he files in the proceeding in which the bond was given a
written declaration changing the address.
6

required notices to defendants by first class mail. The state argues that the

presence in the record of the previously referenced notices dated December 27 and

December 28, 2006, is proof that they were mailed; and that notice by United

States first class mail is sufficient. The defendant’s position is that he did not

receive the notice setting his arraignment on January 19, 2007, and there is no

evidence to the contrary.

In concluding jurisprudentially that the mailing of an arraignment notice

does not constitute actual notice, the trial court relied on the State v. Dillon, 11-188

(La.App. 4 Cir. 8/24/11), 72 So.3d 473. In Dillon, the defendant was arrested and

bail was set, but not posted. Instead, he was released under an internal program of

the prison wherein he was incarcerated. The prison document executed by the

defendant to obtain his release included his home address, and after he was

released from custody, the state filed a bill of information charging him with

issuing worthless checks in a felony amount. The Sheriff’s office thrice attempted

to serve the defendant with notice of arraignment at the address provided on the

prison release document, and, on the third attempt, left the notice on the door of the

home located at that address.

The defendant failed to appear for arraignment, and a warrant was issued for

his arrest. He was arrested on the warrant approximately twenty years later and,

after his arraignment, filed a motion to quash. The trial court concluded that the

notice left on the door was sufficient notice to the defendant of the arraignment

date. The fourth circuit disagreed and granted the motion to quash. However, in

doing so, it drew a distinction between the notice required of a defendant released

pursuant to a bond obligation and one released without a bond obligation.

7

In drawing this distinction, the fourth circuit first noted that there exists “no

express provision of our procedural law specifically regarding service on a

defendant of notice of his arraignment.”5 Id. at 476. Noting that the notice of

arraignment “closely resembles the form for a subpoena of a witness[,]” the court

in Dillon, stated, “We, therefore, extend the application of the procedural

requirements for proper service of a subpoena to the proper service of notice of

arraignment in those limited cases where the defendant is not in custody and not

released on a bail undertaking.” Id. Noting that the jurisprudence provides that

“leaving a subpoena on the door of a residence is not proper service[,]” the fourth

circuit concluded that service by the sheriff in this case did not meet the notice

requirements.

While we do not disagree with the decision in Dillon, we find it

distinguishable from the case before us. Thus, we find the trial court’s reliance on

that decision and conclusion that the mailing of notice of an arraignment date in all

cases is insufficient to constitute notice, to be error. The Dillon court limited its

decision to a situation where a defendant is not in custody and is not subject to a

bail obligation. With regards to the notice requirements for a defendant released

pursuant to an appearance bond obligation, La.Code Crim.P. art. 344 provides in

pertinent part:

....

B. When a bail bond does not fix the appearance date, written
notice of the time, date, and place the defendant is first ordered by the
court to appear shall be given to the defendant or his duly appointed
agent and his personal surety or the commercial surety or the agent or
bondsman who posted the bond for the commercial surety.

5
In a footnote, the court explained that this oversight was “likely attributable to the
circumstance that in the usual case a defendant is either incarcerated (and his appearance is
arranged directly through the sheriff, his custodian) or has been released from pretrial detention
on bail (which has its own notification requirements).” Dillon, 72 So.3d at 476, n.5.
8

....

D. Notice required pursuant to the provisions of this Article to
the defendant and the personal surety or the commercial surety or the
agent or bondsman who posted the bond for the commercial surety
shall be made to the address provided pursuant to Article 322. Notice
may be:

....

(2) Mailed by United States first class mail at least five days
prior to the appearance date.

In the matter now before us, the defendant was released on an unsecured,

personal security bond as provided for in La.Code Crim.P. art. 317, and mailing

notice to him at the Olive Street address provided on the appearance bond would

constitute adequate notice. Thus, the only question before us is whether the state

carried its burden of establishing an interruption of the period of limitation

provided in La.Code Crim.P. art. 578, by showing that the defendant failed to

appear at the arraignment proceeding “pursuant to actual notice, proof of which

appears of record.” La.Code Crim.P. art. 579(A)(3). We find that the state fell

short of its burden of proof in this regard.

In argument to the trial court at the hearing on the motion to quash the bill of

information, the state relied on “the minutes – the notice to Mr. Perry that was sent

to 2323 Olive street, the – also the bond information which does have that as his

address.” The minutes simply state that:

No appearance was made by accused or by attorney. State
represented by C MAXWELL. Testimony given by Dep. Gus Sarpy.
State offered notices and bond. Bench warrant and bond forfeiture.
Bond set at 5,000.00. Contempt bond set at 10,000.00. No R O R.
Commercial or cash bond only.

As previously stated, there are copies of two arraignment notices filed in the

trial record. The first, in a formal notice format, is dated December 27, 2006, and

addressed to the defendant at 2236 B West Sycamore Street, Alexandria, Louisiana.
9

The second, in letter form, is dated December 28, 2006, and addressed to the

defendant at 2323 Olive Street, Alexandria, Louisiana. Both purport to notify the

defendant that the arraignment is scheduled for January 19, 2007. However,

neither copy bears a signature, and the record contains nothing to establish that

either document was actually mailed.

Because the state has failed to establish that notice, mailed or otherwise, was

served on the defendant, we find that the trial court properly granted the motion to

quash the bill of information charging the defendant with possession of marijuana.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment granting the

motion to quash filed by the defendant, John Wesley Perry, Jr., and dismissing the

bill of information charging him with the offense of possession of marijuana.

AFFIRMED.

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