State of Louisiana v. Dewayne Sylvester

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-441

STATE OF LOUISIANA

VERSUS

DEWAYNE SYLVESTER

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 8731-16
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of Elizabeth A. Pickett, Jonathan W. Perry, and Sharon Darville
Wilson, Judges.

AFFIRMED.

Honorable Stephen C. Dwight
14th JDC District Attorney
P. O. Box 3206
Lake Charles, LA 70602
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Douglas Lee Harville
Louisiana Appellate Project
P. O. Box 52988
Shreveport, LA 71135
(318) 222-1700
COUNSEL FOR DEFENDANT/APPELLANT:
Dewayne Sylvester

John E. Turner
Assistant District Attorney 14th JDC
P. O. Box 3206
Lake Charles, LA 70602
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

WILSON, Judge.

Defendant, Dewayne Sylvester, was convicted by a non-unanimous

jury of attempted second degree murder. Mr. Sylvester moved for a new trial based

on the Supreme Court’s decision in Ramos v. Louisiana, 590 U.S.___, 140 S.Ct.

1390 (2020). The trial court denied the motion for new trial, and Mr. Sylvester

appeals the judgment. For the following reasons, we affirm the trial court’s

judgment.

I.

ISSUES

We must decide whether the trial court erred by denying Mr.

Sylvester’s motion for new trial. More specifically, we must decide whether Mr.

Sylvester’s conviction had become final and whether Ramos applies thereby

entitling him to new trial because his underlying conviction was based on a non-

unanimous jury.

II.

FACTS AND PROCEDURAL HISTORY

On February 18, 2016, Mr. Sylvester, Shirley Manuel, and a child were

travelling from Lafayette to Lake Charles. They stopped at a video poker casino so

that Ms. Manuel could use the restroom. After parking the car, they were approached

by Gerald Carter who claimed that Mr. Sylvester and Ms. Manuel were following

him. Mr. Carter then went into the casino. When Ms. Manuel returned from the

restroom, Mr. Sylvester entered the casino and approached Mr. Carter. The men

began arguing and both exited the casino. After Mr. Carter swung a beer can at him,

Mr. Sylvester stabbed him twice.

On March 31, 2016, a Calcasieu Parish grand jury indicted Mr.

Sylvester of attempted second degree murder, in violation of La.R.S. 14:27 and

14:30.1. Mr. Sylvester pled not guilty and requested a trial by jury. After a two-day

jury trial, Mr. Sylvester was found guilty of attempted second degree murder by an

11-1 jury on April 26, 2017.

On May 19, 2017, Mr. Sylvester filed a motion for new trial and after a

hearing, the trial court denied the motion on May 22, 2017. Subsequently, the state

filed a second and subsequent habitual offender bill pursuant to La.R.S. 15:529.1.

On May 24, 2017, the trial court sentenced Mr. Sylvester to serve fifteen years at

hard labor, without benefit of probation, parole, or suspension of sentence. Mr.

Sylvester filed a motion to reconsider sentence, which was denied as untimely, and

Mr. Sylvester filed a motion for appeal. On appeal, this court affirmed Mr.

Sylvester’s conviction and sentence with instructions for the trial court to inform Mr.

Sylvester of the provisions of La.Code Crim.P. art. 930.8.1

On October 17, 2018, the trial court held a multiple offender hearing

and found Mr. Sylvester to be a third felony habitual offender. The trial court

vacated the previously imposed sentence, and sentenced Mr. Sylvester to serve forty

years at hard labor without benefit of probation, parole, or suspension of sentence.

Mr. Sylvester filed a pro se motion to reconsider sentence and the trial court denied

the motion on November 13, 2018. Subsequently, Mr. Sylvester filed a pro se

motion to appeal his habitual offender sentence and the trial court’s denial of his

motion to reconsider sentence. On December 13, 2018, the trial court denied the

1
State v. Sylvester, 18-144 (La.App. 3 Cir. 9/26/18) (unpublished opinion), writ denied, 18-1742 (La. 4/8/19), 267
So.3d 606.

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motion to appeal the habitual offender sentence as untimely but granted the motion

to appeal the denial of the motion to reconsider sentence.

Following a writ application filed by Mr. Sylvester, this court ordered

the trial court to grant Mr. Sylvester’s appeal of his habitual offender adjudication

and the trial court complied.2 On February 5, 2020, this court vacated Mr.

Sylvester’s habitual offender adjudication and sentence and remanded for further

proceedings.3

On July 15, 2020, Mr. Sylvester filed a motion for new trial asserting

that he was entitled to a new trial under Ramos because his conviction was non-

unanimous. The trial court held a hearing on the motion, and it was denied on March

24, 2021. The state decided not to proceed with the habitual offender bill and the

trial court reinstated the original fifteen-year sentence. On April 16, 2021, the trial

court granted Mr. Sylvester’s motion for appeal of the denial of his motion for new

trial and his fifteen-year sentence.

III.

LAW AND DISCUSSION

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed

for errors patent on the face of the record. After reviewing the record, we find that

there are no errors patent.

FINALITY

In his sole assignment of error, Mr. Sylvester asserts the trial court erred

in denying his motion for new trial because his case was not yet final at the time

2
State v. Sylvester, 19-57 (La.App. 3 Cir. 3/14/19) (unpublished opinion).
3
State v. Sylvester, 19-527 (La.App. 3 Cir. 2/5/20), 291 So.3d 718.

3

Ramos was decided as there had been no direct appeal of his judgment of conviction

arising after the habitual offender sentence was vacated by this court. Accordingly,

Mr. Sylvester contends that Ramos applies, and he is entitled to a new trial because

his underlying conviction was based on a non-unanimous jury.

On April 20, 2020, the United States Supreme Court decided Ramos,

holding that the Sixth Amendment right to jury trial, as incorporated against the

states by way of the Fourth Amendment, requires a unanimous verdict to convict a

defendant of a serious offense. The Louisiana Supreme Court has since recognized

that Ramos applies retroactively to all cases pending on direct review or not yet final.

See State v. Norman, 20-109 (La. 7/2/20), 297 So.3d 738 (citing Griffith v. Kentucky,

479 U.S. 314, 328, 107 S.Ct. 708, 716 (1987)).

In support of his argument, Mr. Sylvester specifically cites to State v.

Barnes, 53,917 (La.App. 2 Cir. 5/5/21), 318 So.3d 1100. In that case,

Jonathan Barnes was convicted by a non-unanimous
jury of possession a firearm by a convicted felon. He was
sentenced to ten years at hard labor without benefit of
parole, probation, or suspension of sentence. After he was
subsequently adjudicated an habitual offender, the trial
court vacated his ten-year sentence and imposed an
habitual offender sentence of twelve years at hard labor.
Barnes has been granted an out-of-time appeal. In light of
Ramos v. Louisiana, ––– U.S. ––––, 140 S. Ct. 1390, 206
L.Ed. 2d 583 (2020), we vacate his firearm conviction,
vacate his habitual offender adjudication and sentence,
and remand for a new trial on the underlying offense.

Id. at 1101. The second circuit further explained,

It is unclear from his appeal motions whether
Barnes sought to appeal the underlying conviction or his
habitual offender adjudication and sentence. Nevertheless,
we are mindful that habitual offender proceedings do not
charge a separate crime but are a part of the original
proceeding leading to conviction. See State v. Means, 09-
1716 (La. 4/9/10), 32 So. 3d 805. Additionally, it is clear

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from the brief of his appeal counsel that Barnes is
appealing his underlying conviction.

Barnes was sentenced as an habitual offender on
February 21, 2018. He filed his first motion for an out-of-
time appeal within two years of when his conviction
became final. Therefore, his case is on direct review and
Ramos applies.

Id. at 1102-03.

We find that Barnes is distinguishable from the instant case. The

defendant in Barnes was granted an out of time appeal of his initial conviction

because he did not have an appeal of his underlying conviction. This is not true for

Mr. Sylvester. Mr. Sylvester had previously appealed his initial conviction and

sentence. This court affirmed the conviction and sentence and the supreme court

denied writs.4 Louisiana Code of Criminal Procedure Article 922(D) provides, “[i]f

an application for a writ of review is timely filed with the supreme court, the

judgment of the appellate court from which the writ of review is sought becomes

final when the supreme court denies the writ.” Accordingly, Mr. Sylvester’s

conviction became final after the supreme court denied writs on April 8, 2019, well

before Ramos was decided.

Mr. Sylvester contends that since his habitual offender sentence had

been vacated and the initial sentence had not been reimposed before the Supreme

Court’s decision in Ramos, his conviction was not final. After reviewing the

jurisprudence, we disagree.

The Louisiana Supreme Court recently addressed the finality of a

conviction on subsequent appeal of a habitual offender resentencing in State v.

4
State v. Sylvester, 18-144 (La.App. 3 Cir. 9/26/18) (unpublished opinion), writ denied, 18-1742 (La. 4/8/19), 267
So.3d 606.

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Kennon, 19-998 (La. 9/1/20), __So.3d__. In that case, the defendant argued that his

conviction was not yet final because appellate review of the habitual offender

sentence was ongoing. The supreme court disagreed and held:

To accept defendant’s view that his conviction does
not become final until his habitual offender adjudication
and sentence become final, despite the fact that appellate
review of his conviction has been completed, would
require the court to read “offenders whose convictions
became final on or after November 1, 2017” in Section 2
of Act 282 as “offenders whose convictions and sentences
became final” instead. Just as we were bound by this
unequivocal language in Lyles to find that defendant was
entitled to be sentenced under La.R.S. 15:529.1 as
amended by 2017 La. Acts 282, we are bound by it here to
find this defendant is not.
....

While the situation here is complicated by the
bifurcated appeals that resulted from the State’s decision
to pursue recidivist sentence enhancement during the
pendency of the first appeal, we think it sufficient to find
Lyles does not apply here because a conviction is a
conviction, while this court has consistently found a
habitual offender proceeding is “merely part of
sentencing.” State v. Langendorfer, 389 So.2d 1271, 1276-
77 (La. 1980). It is well-settled that, “A defendant is not
convicted of being a habitual offender. Rather, a defendant
is adjudicated as a habitual offender as a result of prior
felony convictions. The sentence to be imposed following
a habitual offender adjudication is simply an enhanced
penalty for the underlying conviction.” State v. Parker, 03-
0924, p. 15 (La. 4/14/04), 871 So.2d 317, 325–326. The
only appellate review ongoing here pertains to defendant’s
habitual offender sentence. Direct review of the conviction
itself ceased before November 1, 2017.

Id. at 7-9. In State v. Brown, 19-370 (La.App. 5 Cir. 1/15/20), 289 So.3d 1179, writ

denied, 20-276 (La. 6/22/20), 297 So.3d 721, cert. denied, __U.S.__, 141 S.Ct. 1396

(2021), the defendant’s convictions and sentences were affirmed and became final

in 1997. In 2018, Mr. Brown’s sentence was amended to make him parole eligible.

On appeal of his new sentence, Mr. Brown asserted that for purposes of Ramos his

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convictions were not yet final in light of his resentencing under Miller v. Alabama,

567 U.S. 460, 132 S.Ct. 2455 (2012), and appeal of that sentence. The fifth circuit

noted, however, that “Mr. Brown’s instant appeal must be limited to matters of his

resentencing. Though his sentences are pending, his convictions on both counts have

already been affirmed and are final.” Brown 289 So.3d at 1185. The court further

held that,

As stated, this court already affirmed Mr. Brown’s
convictions and sentences on April 9, 1997, following his
original appeal. The Louisiana Supreme Court denied
writs on October 31, 1997. On that day, his convictions
and sentences became final. See La. C.Cr.P. art. 922(D).
Although Mr. Brown was resentenced pursuant to Miller,
and now legitimately exercises his right to appeal that
resentencing, his resentencing does not allow him the
opportunity to challenge his previously affirmed
convictions, as he asserts.
Id. at 1187. Further, the court held that “generally, a defendant is not entitled to a

second error patent review of the matters encompassed in the first appeal[,]” as any

errors relating to his conviction were scrutinized in the first appeal. Id. at 1188. The

supreme court denied Mr. Brown’s writ, with Chief Justice Johnson concurring:

I concur in the denial of the defendant’s writ
application despite his conviction by a non-unanimous
jury verdict in this case. After Mr. Brown was re-
sentenced pursuant to Miller v. Alabama 567 U.S. 460,
132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and Montgomery
v. Louisiana, ––– U.S. ––––, 136 S. Ct. 718, 193 L.Ed.2d
599 (2016), he was entitled to an appeal of his new
sentence, not the underlying conviction. La.C.Cr.P. art.
912(C)(1). Therefore his 1996 conviction was final long
before the United States Supreme Court’s decision in
Ramos v. Louisiana, ––– U.S. ––––, 140 S. Ct. 1390, 206
L.Ed.2d 583 (2020). I write separately to emphasize that
this writ denial does not preclude Mr. Brown from making
a collateral challenge to his conviction by non-unanimous
jury verdict under La. C. Cr. P. art. 930.3(1) and
930.8(A)(2).

State v. Brown, 20-276 (La. 6/22/20), 297 So.3d 721.

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Similarly, in State v. Johnson, 19-969, p. 10 (La.App. 1 Cir.

8/6/20), 311 So.3d 370, 378, the first circuit held that

defendant’s conviction, affirmed in 2008, became final
long before the Ramos decision. Accordingly, we find that
while defendant was entitled to appeal his new sentence
under Miller, he is not entitled to appeal his conviction
pursuant to Ramos, wherein the Ramos Court specifically
found that its ruling applied to those defendants convicted
of felonies by non-unanimous verdicts whose cases are
still pending on direct appeal.
In the instant case, Mr. Sylvester’s conviction was affirmed by this

court in 2018, and the supreme court denied writs in 2019. Although this court

vacated Mr. Sylvester’s habitual offender sentence, this did not change the finality

of his affirmed conviction. Considering the preceding jurisprudence, Mr.

Sylvester’s appeal of his new sentence following the vacated habitual offender

sentence does not open the door for relitigation of any issues regarding his initial

conviction. Mr. Sylvester’s conviction remains final and therefore, he is not entitled

to relief under Ramos.

V.

CONCLUSION

For the foregoing reasons, we find that the trial court did not err in

denying Mr. Sylvester’s motion for new trial based on Ramos. Mr. Sylvester’s

conviction was final before the Supreme Court issued the Ramos decision and as

such Ramos is inapplicable to this case. Accordingly, we affirm the ruling of the

trial court.

AFFIRMED.

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