State Of Louisiana v. James Matthew Cole

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 KA 0033R

STATE OF LOUISIANA

j VERSUS

JAMES MATTHEW COLE

04 Judgment Rendered: FEB 2 4 2021

On Appeal from the 22" d Judicial District Court In and for the Parish of St. Tammany State of Louisiana Trial Court No. 586690

Honorable Scott Gardner, Judge Presiding

Warren L. Montgomery Attorneys for Appellee, District Attorney State of Louisiana Matthew Caplan

Assistant District Attorney Covington, Louisiana

Samuel H. Winston Attorneys for Defendant/ Appellant, New Orleans, Louisiana James Matthew Cole James E. Boren Baton Rouge, Louisiana

BEFORE: PENZATO, LANIER, AND HESTER, JJ. PENZATO, J.

The defendant, James Matthew Cole, was convicted of sexual battery

victim under the age of thirteen years) ( count 1), a violation of La. R. S.

14: 43. 1( C)( 2); molestation of a juvenile ( incidents of molestation recur during a

period of more than one year) ( count 2), a violation of La. R. S. 14: 81. 2( C); and

second degree rape ( count 3), a violation of La. R.S. 14: 42. 1. For both counts 1

and 2, the verdicts were eleven to one. On count 3, the verdict was unanimous.

On count 1, the defendant was sentenced to ninety-nine years imprisonment at hard

labor, with twenty- five years of the sentence to be served without benefit of parole,

probation, or suspension of sentence. On count 2, the defendant was sentenced to

forty years imprisonment at hard labor without benefit of parole, probation, or

suspension of sentence. On count 3, the defendant was sentenced to forty years

imprisonment at hard labor, with two years of the sentence to be served without

benefit of parole, probation, or suspension of sentence. The sentences were

ordered to run concurrently. The defendant appealed his convictions and

sentences, which were affirmed. Thereafter, the defendant filed an application for

writ of certiorari. The Louisiana Supreme Court granted the writ in part and

remanded the case to this court. See State a Cole, 2019- 0033 ( La. App. 1st Cir.

9/ 27/ 19), 288 So. 3d 146, writrg anted, 2019- 01733 ( La. 10/ 6/ 20), 302 So. 3d 524

per curiam).

In its per curiam opinion, the supreme court stated that the defendant' s

convictions were not final when Ramos a Louisiana, 590 U.S. , 140 S. Ct. 1390,

206 L.Ed.2d 583 ( 2020), was decided, and therefore the holding of Ramos applied

to any non -unanimous verdicts in these proceedings. The supreme court remanded

the matter to this court for further proceedings and to conduct a new error patent

review in light of Ramos. Finally, the supreme court noted that the remand order

did not pertain to the defendant' s conviction for second degree rape, which was by

2 unanimous verdict. Cole, 302 So. 3d 524.

In Ramos, the United States Supreme Court overruled Apodaca a Oregon,'

406 U.S. 404, 92 S. Ct. 1628, 32 L.Ed.2d 184 ( 1972), and held that the right to a

jury trial under the Sixth Amendment of the United States Constitution,

incorporated against the States by way of the Fourteenth Amendment of the United

States Constitution, requires a unanimous verdict to convict a defendant of a

serious offense. The Ramos Court further noted that its ruling applied to those

defendants convicted of felonies by non -unanimous verdicts whose cases are still

pending on direct appeal. Ramos, 140 S. Ct. at 1406- 08. The defendant herein was

convicted by non -unanimous jury verdicts on counts 1 and 2.

Accordingly, the defendant' s convictions and sentences on counts 1 and 2

respectively, sexual battery ( victim under the age of thirteen years) and

molestation of a juvenile ( incidents of molestation recur during a period of more

than one year)) are set aside. For these aforementioned counts only, this matter is

remanded to the trial court for further proceedings.

AS TO COUNTS 1 AND 2, CONVICTIONS AND SENTENCES VACATED; REMANDED.

1 Oregon' s non -unanimous jury verdict provision of its state constitution was challenged in Apodaca. Johnson v. Louisiana, 406 U. S. 356, 92 S. Ct. 1620, 32 L.Ed. 2d 152 ( 1972), decided with Apodaca, upheld Louisiana' s then -existing constitutional and statutory provisions allowing nine -to -three jury verdicts.