State of Louisiana v. Larry Joseph McKithern AKA - Larry McKithern AKA - Larry J. McKithern

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-930

STATE OF LOUISIANA

VERSUS

LARRY JOSEPH MCKITHERN
aka LARRY J. MCKITHERN
aka LARRY MCKITHERN

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 25391-09
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

APPEAL DISMISSED.

CARLA SIGLER
KAREN MCLELLAN
ASSISTANT DISTRICT ATTORNEYS
901 LAKESHORE DRIVE, SUITE 600
(337) 437-3325
LAKE CHARLES, LA 70601
COUNSEL FOR APPELLEE:
State of Louisiana

EDWARD K. BAUMAN
LA APPELLATE ATTORNEY
P.O. BOX 1641
LAKE CHARLES, LA 70602-1641
(337) 491-0570
COUNSEL FOR APPELLANT:
Larry Joseph McKithern
aka Larry J. McKithern
aka Larry McKithern

Gremillion, Judge.
On December 2, 2010, Defendant-Appellant was convicted of armed

robbery and aggravated arson in docket number 25391-09. On March 9, 2011, in

docket number 3678-11, Defendant-Appellant was adjudicated a second habitual

offender and was sentenced to one hundred and thirty years on the charge of armed

robbery and thirty years on the charge of aggravated arson. The sentences were

ordered to run consecutively. On appeal, Defendant-Appellant’s convictions were

affirmed; the habitual offender adjudication and sentences were vacated and

remanded to the trial court for further proceedings and resentencing. State v.

McKithern, 11-1111 (La.App. 3 Cir. 5/2/12), 93 So.3d 697, writ denied, 12-1653

(La. 1/1/13), 108 So.3d 782; State v. McKithern, 11-1402 (La.App. 3 Cir. 5/2/12),

93 So.3d 684, writ denied, 12-1653 (La. 3/1/13), 108 So.3d 782.

On May 19, 2014, at the hearing on Defendant-Appellant’s habitual offender

adjudication in docket number 3678-11, Defendant-Appellant was resentenced to

one hundred and ten years on the armed robbery charge and twenty years on the

aggravated arson charge. The sentences were ordered to run consecutively without

the benefit of probation, parole, or suspension of sentence.

In response to two motions and orders for appeal in docket number 3678-11

and 25391-09, the trial court, although acknowledging the motions sought an

appeal, ordered Defendant-Appellant to submit a writ application to this court.

Defendant-Appellant filed a writ application in this court, and this court issued the

following ruling:

WRIT GRANTED AND MADE PEREMPTORY IN PART;
WRIT DENIED IN PART: Relator is entitled to an appeal of his
May 19, 2014, habitual offender adjudication and sentencing, and his
request for an appeal was timely sought. La.Code Crim.P. arts. 912
and 914. Accordingly, we vacate both the trial court’s June 10, 2014,
ruling ordering Relator to submit a writ application and its September
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25, 2014, order denying Relator’s second motion for appeal. The trial
court is ordered to grant Relator’s request for appeal of the May 19,
2014, habitual offender adjudication and sentencing. If Relator is
found indigent, counsel shall be appointed to represent him on appeal.
Relator’s request for the inclusion in the appellate record of certain
motions, transcripts, and evidence is considered as a pro se motion for
designation of the record which is remanded to the trial court for
consideration in conjunction with the granting of the aforementioned
appeal. Relator’s request for mandamus relief on his motion to
reconsider sentence, motion to stay appeal, and pro se motions for
appeal are denied as moot.
State v. McKithern, 14-842 (La.App. 3 Cir. 5/19/15) (unpublished opinion).

On September 30, 2015, this court lodged the record of appeal in docket

number 25391-09, which is the instant case. On the same date, this court also

lodged the record of appeal in docket number 3678-11, which was assigned docket

number 15-931. On October 8, 2015, this court issued a rule to show cause why

the appeal in the instant case should not be dismissed, as the judgment being

appealed was rendered on May 19, 2014, which relates to the habitual offender

docket number 3678-11 and as this court affirmed Defendant-Appellant’s

convictions in docket number 25391-09. See McKithern, 11-1402 and McKithern,

11-1111.

On December 4, 2015, Defendant-Appellant filed a “Pro Se Supplemental

Brief In Responses To The Order To Show Cause Issued 10-29-15, And Now

Respectfully Submitted” with this court. Defendant-Appellant asserts in his brief:

On 5-19-2014, the district court resentenced petitioner under both
counts – only this time the La.R.S[.] 14[:]64[,] arm[ed] robbery was
110 years under docket no. 3678-11 – and the 20 years RS[.] 14[:]51
was under criminal court docket 25391-09.

The court has - 2 sentence[s] - with one docket no[.] in relation to
15[:]529.1[,] docket no[.] 3678-11 - and 14[:]51 being a sentence
under 25391-09. The appeal is proper - This court has appellate
jurisdiction pursuant to article 5 section 10 of the Louisiana
Constitution - 1974. Also art 1 subs 19 [sic]-

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As stated above, this court affirmed Defendant-Appellant’s convictions on

appeal in docket number 25391-09. See McKithern, 93 So.3d 684. The appeal of

Defendant-Appellant’s habitual offender adjudication in docket number 3678-11 is

pending before this court in docket number 15-931. Accordingly, we hereby

dismiss Defendant-Appellant’s appeal in the instant case.

APPEAL DISMISED.

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