State of Louisiana v. Xavier Levi Johnwell

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-286

STATE OF LOUISIANA

VERSUS

XAVIER LEVI JOHNWELL

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 6855-22
HONORABLE CLAYTON B. DAVIS, DISTRICT JUDGE

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CHARLES G. FITZGERALD
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Charles G. Fitzgerald,
Judges.

SENTENCES VACATED;
REMANDED FOR FURTHER PROCEEDINGS.

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602
(337) 491-0570
Counsel for Defendant/Appellant:
Xavier Levi Johnwell

Stephen C. Dwight
District Attorney
John Eric Turner
Assistant District Attorney
Fourteenth Judicial District
901 Lakeshore Drive, Suite 800
Lake Charles, Louisiana 70601
(337) 437-3400
Counsel for Appellee:
State of Louisiana

FITZGERALD, Judge.

Defendant, Xavier Levi Johnwell, appeals his conviction for illegal carrying

of a weapon, second offense.

On December 2, 2021, Defendant and several other people were approached

by deputies when they were seen hanging out in front of an abandoned house in Lake

Charles. Defendant slipped and fell while attempting to flee. A gun was recovered

from Defendant.

In May 2022, Defendant was charged by bill of information with one count of

possession of a firearm by a convicted felon in violation of La.R.S. 14:95.1. He was

also charged with one count of illegal carrying of a weapon, second offense, in

violation of La.R.S. 14:95(C). In November 2023, a unanimous jury found

Defendant guilty as charged.

Thereafter, in January 2024, Defendant filed a motion for new trial. Both the

State and Defendant agree that the trial court has not yet ruled on this motion.

Nonetheless, in February 2024, the trial court sentenced Defendant to fifteen

years for possession of a firearm by a convicted felon and five years for illegal

carrying of a weapon, second offense. The sentences were ordered to run

concurrently. Defendant then filed a motion to reconsider sentence. That motion

was denied by the trial court.

Defendant now appeals his conviction for illegal carrying of a weapon, second

offense. In his sole assignment of error, Defendant asserts that the trial court erred

in refusing to give the requested jury charge of attempted illegal carrying of a

weapon.

LAW AND ANALYSIS
Pursuant to La.Code Crim.P. art. 920, all appeals are initially reviewed for

errors patent on the face of the record. And here, the patent error is this: the trial

court sentenced Defendant without first ruling on his pending motion for new trial.

A different panel of this court addressed this error in State v. Cruz, 15-755, pp. 2–3

(La.App. 3 Cir. 2/3/16), 184 So.3d 869, 870–71 (emphasis in original), explaining

as follows:

In State v. Leonard, 99-800 (La.App. 3 Cir. 2/2/00), 758 So.2d
238, in its error patent review, this court discovered there was no ruling
on the defendant’s motion for post verdict judgment of acquittal. This
court held in pertinent part:

[Louisiana Code Criminal Procedure] art. 821
requires that a motion for post verdict judgment of
acquittal be filed and disposed of before sentencing.
La.Code Crim.P. art. 853 also requires that a motion for
new trial be filed and disposed of before sentencing.
When such motions are filed but not disposed of before
sentencing, the sentence must be vacated and the case
remanded for disposition of the motions before
resentencing. State v. Townsend, 94-658 (La.App. 3 Cir.
12/7/94); 647 So.2d 535; State v. Randolph, 409 So.2d 554
(La.1981); El–Mumit v. Twenty–First Judicial District
Court, 500 So.2d 414 (La.1987). Although the motion for
new trial was eventually ruled upon, it was not ruled upon
until after sentence was imposed. The motion for post
verdict judgment of acquittal, on the other hand, has not
yet been ruled upon. Thus, the Defendant’s sentence is
vacated and the case remanded for disposition of the
motion for post verdict judgment of acquittal and, if
necessary, resentencing.

A discussion of the remaining assignments of errors
is pretermitted by this court’s remand. The Defendant’s
right to appeal his conviction and sentence is preserved.

Id. at 239–40.

More recently, in State v. Freeman, 15-251 (La.App. 3 Cir.
10/7/15), 175 So.3d 1104, this court determined that when a
defendant’s motion for post verdict judgment of acquittal is filed and
not ruled upon, the appropriate remedy is to pretermit discussion of the

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defendant’s assignment of error, vacate the defendant’s sentence, and
remand for a ruling on the defendant’s motion for post verdict judgment
of acquittal, and, if necessary, resentencing. This court also noted that
the defendant’s right to appeal his conviction and sentence was
preserved.

Thus, based on Cruz, Leonard, and Freeman, we vacate Defendant’s

sentences and remand this case for Defendant’s motion for new trial to be addressed

and decided by the trial court. Should Defendant’s motion be denied, he shall be

resentenced, and his right to appeal his sentence and conviction shall be preserved.

DISPOSITION

Defendant’s sentences are vacated, and the case is remanded to the trial court

for disposition of Defendant’s motion for new trial and for resentencing, if

necessary. Defendant’s right to appeal his conviction and sentence is preserved.

SENTENCES VACATED;
REMANDED FOR FURTHER PROCEEDINGS.

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