State of Louisiana v. John Wesley Perry, Jr.

• Court: Louisiana Court of Appeal
• Decided: December 11, 2013
• Docket: KA-0013-0568
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

13-568

STATE OF LOUISIANA

VERSUS

JOHN WESLEY PERRY, JR.

**********

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 288,318 HONORABLE PATRICIA E. KOCH, DISTRICT JUDGE

JIMMIE C. PETERS JUDGE

Court composed of Sylvia R. Cooks, Jimmie C. Peters, and James T. Genovese, Judges.

AFFIRMED.

James C. Downs District Attorney Thomas R. Willson Assistant District Attorney Ninth Judicial District 701 Murray Street Alexandria, LA 71301 (318) 473-6650 COUNSEL FOR APPELLANT: State of Louisiana Darrell K. Hickman P. O. Box 48 Alexandria, LA 71309-0048 (318) 448-6353 COUNSEL FOR DEFENDANT/APPELLEE: John Wesley Perry, Jr. PETERS, J.

This appeal is one of four1 now before us involving the same defendant and

the same issue. In this appeal, the State of Louisiana (state) seeks reversal of the

trial court’s grant of a motion to quash the bill of information filed against the

defendant, John Wesley Perry, Jr., thereby dismissing the charge of possession of

methylenedioxymethamphetamine, a violation of La.R.S. 40:966. The offense is a

felony. La.R.S. 40:966(C)(3); La.R.S. 14:2(4). For the following reasons, we

affirm the grant of the motion to quash the bill of information.

The basic facts surrounding this criminal charge are not in dispute. The

defendant was arrested and charged with the possession offense; the date of the

offense is stated as June 13, 2006. He posted a $5,000.00 appearance bond on June

16, 2006, to secure his release. Although prepared on what appears to be standard

appearance bond form, the copy of the bond in the record reflects that the

defendant appears as both the principal and surety and that he listed his address as

2323 Olive Street in Alexandria, Louisiana. While the bond document does not

designate a court appearance date to answer for the charge, it does provide that the

―named principal will appear at all stages of the proceedings in the Ninth Judicial

District Court to answer that charge or any related charge, and will at all times hold

himself amenable to the orders and process of the Court[.]‖ At the bottom of the

form appears an attestation clause signed by the defendant without any further

certification. The attestation clause contains a signature line for the approval of the

1 There were actually five cases before the trial court when it rendered judgment in all five granting the defendant’s motion to quash. These bore Ninth Judicial District Court Docket Numbers 284,807; 286,892; 286,893; 288,318; and 288,319. The issues involving Docket Number 288,319 are before us in this appeal raised in Docket Number 13-566, while Docket Number 13-566 of this court addresses the issues raised in Docket Number 284,807; Docket Number 13-567 of this court addresses the issues raised in Docket Number 286,893; and Docket Number 13-569 of this court addresses the issues raised in Docket Number 288,318. The state did not appeal the judgment in Docket Number 286,892. Sheriff and/or Judge, but this line is blank.

In a July 16, 2007 bill of information, the state charged the defendant with

having committed the offense. The record contains a copy of a document entitled

―NOTICE OF ARRAIGNMENT‖ dated September 18, 2007, purporting to

notify the defendant of his October 5, 2007 arraignment date for the charges. The

copy bears a heading reflecting that it was generated by the Rapides Parish

Sheriff’s Office; contains an stamped signature of ―M. Fisher‖ at the bottom of the

page and identifies Fisher as a ―Deputy‖; lists the defendant’s address as 2236 B

West Sycamore Street, Alexandria, Louisiana; and includes the instruction to the

defendant that ―FAILURE TO APPEAR SHALL RESULT IN BOND

FORFEITURE AND AN ARREST WARRANT FOR YOUR IMMEDIATE

ARREST AND FOR CONTEMPT OF COURT.‖

The defendant did not appear for his arraignment on October 5, 2007, and

the trial court issued a bench warrant and bond forfeiture for his failure to appear.

On that same day, the trial court executed a written bond forfeiture judgment,

wherein it listed the defendant’s address as the Olive Street address recorded on the

appearance bond document. The trial court record also contains a certificate from

the Rapides Parish Clerk of Court, which asserts that on November 29, 2007, that

office forwarded written notice of the bench warrant and bond forfeiture judgment

rendered on October 5, 2007, to the defendant at his Olive Street address.

However, the certificate does not assert that the defendant was provided with a

copy of the judgment itself.

Some years later, the defendant was arrested on the bench warrant.2 He

2 Although the defendant’s brief in support of the motion to quash asserts that he was taken into custody on the outstanding bench warrant on July 31, 2012, after having been arrested 2 entered a not guilty plea to the charge now before the court at his August 10, 2012

arraignment, and he filed his motion to quash the bill of information on October 8,

2012. The trial court heard the motion on November 27, 2012.3

As previously stated, while not consolidated, this matter involves the same

issue, the same evidence, the same assignments of error, and the same arguments

as the other three appeals pending before us. We have already set forth the

analysis of the evidence presented at the November 27, 2012 hearing, as well as

the trial court’s reasons for granting the motion to quash in all five cases then

pending before it. Rather than repeat ourselves, for the purpose of this analysis we

adopt by reference that which is set forth in State v. Perry, 13-566 (La.App. 3 Cir.

__) __ So.3d __, as though set forth herein. In doing so, we reach the same

conclusion as we did in that appeal.

As in the other cases involving this defendant, the only question before us is

whether the state carried its burden of establishing an interruption of the period of

limitation provided in La.Code Crim.P. art. 578, by showing that the defendant

failed to appear at the arraignment proceeding ―pursuant to actual notice, proof of

which appears of record.‖ La.Code Crim.P. art. 579(A)(3). We find that the state

fell short of its burden of proof in this regard.

In argument to the trial court, at the hearing on the motion to quash the bill

of information, the state relied partially on ―the minutes – the notice to Mr. Perry

that was sent to 2323 Olive street, the – also the bond information which does have

that as his address.‖ The minutes simply state that:

for another unrelated offense, the trial record contains no evidence of how and when the defendant returned to the custody of the state for the two simple battery charges. 3 The motion to quash was filed in all of the cases before us at this time, and, because the issue was the same in all of the cases, the trial court considered the individual motions in a single hearing. 3 No appearance was made by accused or by attorney. State represented by C MAXWELL. Testimony given by Dep. Otis Laborde. State offered notice and bond. Bench warrant and bond forfeiture. Bond set at 10,250.00. Contempt bond set at 25,000.00. No R O R. Commercial or cash bond only.

Additionally, the one arraignment notice filed in the trial court record contains a

different address from the appearance bond, does not contain an authentic

signature, and the record contains nothing to establish that even this inaccurately

addressed document was actually mailed.

Because the state has failed to establish that notice was mailed or otherwise

served on the defendant, we find that the trial court properly granted the motion to

quash the bill of information charging the defendant with possession of

methylenedioxymethamphetamine.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment granting the

motion to quash filed by the defendant, John Wesley Perry, Jr., and dismissing the

bill of information charging him with one count of possession of

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2-16.3.