State of Louisiana v. John Wesley Perry, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-567

STATE OF LOUISIANA

VERSUS

JOHN WESLEY PERRY, JR.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 286,893
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 Keith 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 two charges of simple

battery, violations of La.R.S. 14:35. 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 two counts of simple battery. The

date of the offense was July 11, 2006, and he posted two separate $500.00 bonds

on August 14, 2006, to secure his release from custody. Although prepared on

what appears to be standard appearance bond forms, the copies of the bonds in the

record reflect that the defendant appears as both the principal and surety and that

he lists his address as 2323 Olive Street in Alexandria, Louisiana, in both

documents. While neither bond document designates a court appearance date to

answer for the charges, they do both 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 forms appears an

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

attestation clause contains a signature line for the approval of the Sheriff and/or

Judge, but these lines are blank on both documents.
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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 286,893 are before us in this appeal raised in Docket Number 13-566, while Docket
Number 13-566 of this court addresses the issues raised in Docket Number 284,807; 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.

The state charged the defendant with two counts of simple battery in an

April 18, 2007 bill of information. Both of these counts are misdemeanors.

La.R.S. 14:35; La.R.S. 14:2(4) and (6).

The record contains copies of two letters purporting to notify the defendant

of his June 15, 2007 arraignment date for both charges. The letterhead on each

letter is that of the Rapides Parish Sheriff’s Office; both are addressed to the

defendant; both are dated May 30, 2007; and both purport to notify the defendant

that his arraignment on the two simple battery charges was set for June 15, 2007, at

9:00 a.m. With regard to the defendant’s address, one of the letters lists the Olive

Street address which appears on the appearance bond form, while the other lists the

address as 2236 B West Sycamore Street in Alexandria, Louisiana. Neither letter

has an original signature. Instead, both bear a stamped signature of ―M. Fisher‖

and identifies him or her as a ―Deputy Sheriff.‖ In addition to notifying the

defendant of his arraignment date and commenting on his right to be represented

by counsel in the criminal proceedings, the letters contain the following language:

Should you fail to appear in Ninth Judicial District Court in the
Rapides Parish Courthouse at the hour and on the date specified, the
presiding Judge may order your bond forfeited and a bench warrant
issued for your immediate arrest on the charge of CONTEMPT OF
COURT.

The defendant did not appear for his arraignment on June 15, 2007, and the

trial court issued a bench warrant and bond forfeiture on both counts for his failure

to appear. On that same day, the trial court executed two separate written bond

forfeiture judgments. In the judgments, the defendant’s address is listed as both

the Olive Street address and the West Sycamore Street address. The trial court

record also contains two separate certificates from the Rapides Parish Clerk of

Court each of which assert that on August 1, 2007, that office forwarded written

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notice of the bench warrant and bond forfeiture judgments rendered on June 15,

2007, to the defendant at both the Olive Street address and the West Sycamore

Street address. However, neither certificate asserts that the defendant was

provided with a copy of the judgment itself.

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

entered not guilty pleas to both charges now before the court at his August 10,

2012 arraignment, and he filed his motion to quash the bill of information on

October 8, 2012. The trial court heard the motion on November 27, 2012. 3

As previously stated, while not consolidated, this matter involves the same

issue, the same evidence, the same assignments of error, and the same arguments

as the other three appeals pending before us. We have already set forth the

analysis of the evidence presented at the November 27, 2012 hearing, as well as

the trial court’s reasons for granting the motion to quash in all five cases then

pending before it. Rather than repeat ourselves, for the purpose of this analysis we

adopt by reference that which is set forth in State v. Perry, 13-566 (La.App. 3 Cir.

_) __ So.3d __, as though set forth herein. In doing so, we reach the same

conclusion as we did in that appeal.

As in the other cases involving this defendant, 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

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 two simple battery charges.
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.
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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 partially 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 1,000.00. Contempt bond set at 5,000.00. No R O R.
Commercial or cash bond only.

The two arraignment notices filed in the trial court record contain different

addresses, neither bears an authentic 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 two counts of simple

battery.

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 two counts of the offense of simple battery.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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