State of Louisiana v. Ronnie C. Johnson A/K/A Ron Cleon Johnson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-368 consolidated with 23-510

STATE OF LOUISIANA

VERSUS

RON CLEON JOHNSON

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ON WRIT OF CERTIORARI FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C32761
HONORABLE DESIREE DUHON DYESS, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of Elizabeth A. Pickett, Candyce G. Perret, and Sharon Darville
Wilson, Judges.

WRIT DENIED, IN PART.
WRIT GRANTED IN PART AND
REMANDED WITH INSTRUCTIONS.

Billy Joseph Harrington
District Attorney
Clifford Royce Strider, III
Assistant Attorney General
R. Bray Williams
Assistant District Attorney
Post Office Box 838
Natchitoches, LA 71458-0838
200 Church Street
Natchitoches, LA 71457
(318) 357-2214
COUNSEL FOR RESPONDENT:
State of Louisiana

G. Paul Marx
Louisiana Appellate Project
Post Office Box 82389
Lafayette, LA 70598-2389
(337) 237-2537
COUNSEL FOR DEFENDANT/RELATOR:
Ron Cleon Johnson a/k/a Ronnie C. Johnson

Ron Cleon Johnson
Madison Parish Correctional Center
Builting 4, Dorm D
158 Treatment Plant Road
Tallulah, LA 71282-7406
In Proper Person

PERRET, Judge.

Defendant-Relator, Ron Cleon Johnson, (“Relator”) was convicted by a jury

of three counts of violation of a protective order, second offense, and was

subsequently sentenced to two years on each count, to be served consecutively, in

the Department of Corrections, without benefit of probation, parole, or suspension

of sentence. A fine of $1,000.00 on each count was also ordered. After the State

filed a habitual offender bill, Defendant was adjudicated a fourth habitual offender

on March 8, 2023, and sentenced to twenty years in the Department of Corrections,

without benefit of probation or suspension of sentence. Relator filed a “Motion to

Vacate and to Set Aside an Illegal Sentence and for a Correction of Illegal Sentence,”

which was denied by the trial court on April 17, 2023. Relator now seeks

supervisory review of that denial. By order of this court, Relator’s writ application

was consolidated with Relator’s pending appeal, the opinion of which was rendered

in State v. Johnson, 23-510 (La.App. 3 Cir. __/__/__), ___ So.3d ___. After review,

we deny the writ in part, and grant the writ in part. The case is remanded for the trial

court to issue a ruling when it regains jurisdiction to do so.

FACTS AND PROCEDURAL BACKGROUND:

The detailed facts of this case are set forth in the consolidated appeal, Johnson,

___ So.3d ___. For the purposes of this writ application, the following procedural

information is applicable.

On April 12, 2023, Relator filed his “Motion to Vacate and to Set Aside an

Illegal Sentence and for a Correction of Illegal Sentence” with the trial court. Relator

argued he was illegally sentenced as a habitual offender. Relator argued the

protective orders upon which Relator’s convictions in counts one and two were

based on expired before the State filed its second amended bill of information,

rendering the bill of information defective on its face. Additionally, Relator claimed

that the victim never filed a petition seeking an order of protection in the docket

numbers related to counts one and two. Relator further claimed he was denied due

process in that he was never given an opportunity to be heard in any hearing related

to the issuance of the involved protective orders.

On April 17, 2023, the trial court denied Relator’s motion without reasons.

Relator subsequently filed a notice of intent, which was denied by the trial court on

April 27, 2023. The trial court found Relator’s notice of intent to be improper due

to Relator’s pending appeal of his conviction and sentence addressing the same

issues raised in his motion to vacate.

On June 8, 2023, Relator filed a writ application with this court seeking

supervisory review of the trial court’s April 17, 2023 denial of his “Motion to Vacate

and to Set Aside an Illegal Sentence and for a Correction of Illegal Sentence.” By

order of this court, Relator’s writ application was consolidated with Relator’s

pending appeal, the opinion of which was rendered in Johnson, ___ So.3d ___.

In his writ application, Defendant argues two assignments of error: (1) that

the protective orders for counts one and two were expired at the time he made the

prohibited phone call and, (2) that those same protective orders were improperly

issued.

DISCUSSION:

It is the content of the pleading, not its caption, that determines its nature.

State ex rel. Daley v. State, 97-2612 (La. 11/7/97), 703 So.2d 32. Although Relator

filed a motion to correct illegal sentence, Relator does not challenge the legality of

his sentences. Instead, Relator is challenging the validity of his convictions; thus,

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his motion was, in fact, an application for post-conviction relief. See La.Code

Crim.P. arts. 924(A) and 930.3.

“An application for post-conviction relief shall not be entertained if the

petitioner may appeal the conviction and sentence which he seeks to challenge, or if

an appeal is pending.” La.Code Crim.P. art. 924.1. Pursuant to La.Code Crim.P.

art. 916, “[t]he jurisdiction of the trial court is divested and that of the appellate court

attaches upon the entering of the order of appeal.” While the trial court maintains

jurisdiction to sentence Relator as a habitual offender and correct any illegality in

the sentences imposed, it is divested of jurisdiction to rule on any post-conviction

relief filed by Relator. See La.Code Crim.P. art. 916. Since the trial court had

granted Relator’s motion for out-of-time appeal on February 8, 2023, the trial court

did not have jurisdiction to rule on Relator’s application for post-conviction relief.

See La.Code Crim.P. arts. 916 and 924.1.

Additionally, Relator’s claim that the protective orders at issue in counts one

and two had already expired when he made the prohibited phone call was also raised

in his appeal. For the sake of judicial economy, this claim is denied for the reasons

stated in Johnson, ___ So.3d ___. As for Relator’s remaining claim, that the trial

court did not follow the proper procedure when it issued the protective orders in

counts one and two, the writ application is granted, and the case remanded for the

trial court to issue a ruling when it regains jurisdiction to do so.

WRIT DENIED, IN PART. WRIT GRANTED IN PART AND
REMANDED WITH INSTRUCTIONS.

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