State of Louisiana v. Jonathan O. Barnes

• Court: Louisiana Court of Appeal
• Decided: May 5, 2021
• Docket: 53,917-KA
• Status: Published

Opinion

Judgment rendered May 5, 2021. Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.

No. 53,917-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA ***** STATE OF LOUISIANA Appellee versus

JONATHAN O. BARNES Appellant

*****

Appealed from the Eighth Judicial District Court for the Parish of Winn, Louisiana Trial Court No. 43939

Honorable Jacque Derr, Judge *****

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Chad Ikerd

RICHARD CHRISTOPHER NEVILS Counsel for Appellee District Attorney

STEVEN D. CREWS COLE B. SMITH Assistant District Attorneys

***** Before STONE, ROBINSON, and BLEICH (Pro Tempore), JJ. ROBINSON, J.

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.

FACTS

Barnes, who was driving alone in his girlfriend’s car, was pulled over

by a Winnfield Police Department officer on November 1, 2016. A pistol

was found under the driver’s seat following a canine search. Barnes had

pled guilty in 2014 to possession of hydrocodone, a Schedule III controlled

dangerous substance.

Barnes was charged by bill of information with improper passing on

the right shoulder in violation of La. R.S. 32:74(B), resisting an officer in

violation of La. R.S. 14:108, and possession of a firearm by a convicted

felon in violation of La. R.S. 14:95.1. The matter proceeded to trial only on

the firearm possession charge. On April 26, 2017, Barnes was convicted as

charged by a 10-2 jury verdict. The trial transcript shows that the jury was

polled by written vote. This is also shown in the court minutes. A motion

for new trial was denied two months later. On August 15, 2017, Barnes was sentenced to ten years at hard labor

without benefit of parole, probation, or suspension of sentence. Barnes

signed a notice that he had been advised of the time limits to apply for post-

conviction relief. His trial counsel told the trial court that he had “one more

motion to file and then the appeal.” By letter dated June 29, 2017, the

Louisiana Appellate Project had notified this Court that it had assigned an

attorney to handle Barnes’s appeal. However, no appeal was taken from his

conviction or sentence.

An habitual offender proceeding was held on February 21, 2018. The

predicate offense was a 2009 guilty plea to possession of cocaine. Pursuant

to an agreement and an admission by Barnes that he is an habitual offender,

the trial court vacated the ten-year sentence and imposed an habitual

offender sentence of twelve years at hard labor. The trial court did not

advise Barnes of his rights or question him about his admission to the

habitual offender charge. Barnes did not speak at the hearing. Barnes was

again advised of the time limits to apply for post-conviction relief.

Barnes filed a motion for an out-of-time appeal on March 9, 2020,

followed two days later by an amended motion for an out-of-time appeal.

The motions were denied on the ground that his sentence was vacated when

Barnes was sentenced as an habitual offender.

Barnes applied for a supervisory writ, which this Court granted on

June 3, 2020. The matter was remanded to the trial court to consider the

motions as an application for post-conviction relief seeking an out-of-time

appeal in accordance with La. C. Cr. P. art. 930.8 and State v. Counterman,

475 So. 2d 336 (La. 1985).

2 Barnes filed a motion for appeal and designation of record on July 23,

2020. The motion was granted. He argues on appeal that because he was

not convicted by a unanimous jury, his conviction for being a felon in

possession of a firearm should be reversed and the matter remanded for a

new trial. The State counters that Barnes’s argument is meritless because

Ramos does not apply to convictions that have become final and are being

reviewed on post-conviction relief.

DISCUSSION

“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. C. Cr. P. art. 924.1 The official

revision comment to art. 924.1 states that the post-conviction relief

procedure is not designed to take the place of an appeal, and that the

petitioner must first exhaust whatever appeal rights that he has. La. C. Cr. P.

art. 930.8 states that applications for post-conviction relief, including

requests for out-of-time appeals, must be filed within two years from the

date that a defendant’s conviction and sentence become final unless certain

specific exceptions apply.

The United States Supreme Court rendered its decision in Ramos on

April 20, 2020. It held that the Sixth Amendment right to a jury trial, as

incorporated by the 14th Amendment, requires a unanimous verdict to

convict a defendant of a serious offense in both federal and state courts. In

State v. Richardson, 20-00175 (La. 6/3/20), 296 So. 3d 1050, the Louisiana

Supreme Court determined that the holding of Ramos applies to cases

pending on direct review when Ramos was decided. Thus, the State will

have to retry defendants who were convicted of serious offenses by non- 3 unanimous juries and whose cases were still pending on direct appeal when

Ramos was decided.

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 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.

The jury was not unanimous in finding Barnes guilty of the serious

offense of possession of a firearm by a convicted felon. A verdict of 10-2

was revealed when the jury was polled. This error is patent on the face of

the record.1 Accordingly, in light of the ruling in Ramos and the fact that

this matter is on direct appeal, we vacate Barnes’s conviction of possession

of a firearm by a convicted felon. Because the underlying conviction is

vacated, we further vacate his habitual offender adjudication and sentence.

This matter is remanded for a new trial on the underlying offense.

1 An error patent is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence and can be considered on appeal. See La. C. Cr. P. art. 920(2). 4 CONVICTION VACATED; HABITUAL OFFENDER

ADJUDICATION AND SENTENCE VACATED; REMANDED FOR

NEW TRIAL.