State of Louisiana v. Jonterry A. Bernard

Opinion

STATE OF LOUISIANA * NO. 2019-KA-0208

VERSUS * COURT OF APPEAL

JONTERRY A. BERNARD * FOURTH CIRCUIT

*

STATE OF LOUISIANA

*******

APPEAL FROM

CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 521-734, SECTION “A”

Honorable Laurie A. White, Judge ******

Judge Tiffany G. Chase

******

ON REMAND FROM THE LOUISIANA SUPREME COURT

(Court composed of Judge Roland L. Belsome, Judge Paula A. Brown, Judge Tiffany G. Chase)

Leon Cannizzaro Donna Andrieu Irena Zajickova DISTRICT ATTORNEY'S OFFICE ORLEANS PARISH 619 S. White Street New Orleans, LA 70119

COUNSEL FOR STATE OF LOUISIANA/APPELLEE

Holli Herrle-Castillo LOUISIANA APPELLATE PROJECT P. O. Box 2333 Marrero, LA 70073-2333

COUNSEL FOR DEFENDANT/APPELLANT

VACATED AND REMANDED

JULY 01, 2020

TGC RLB PAB This matter is on remand from the Louisiana Supreme Court pursuant to the

United States Supreme Court’s recent decision in Ramos v. Louisiana, No. 18-

5924, 590 U.S. ___, 140 S.Ct. 1390, ___ L.Ed.2d ___ (2020), 2020 WL 1906545 (holding that jury verdicts in state felony trials must be unanimous). State v.

Bernard, 2019-0208 (La.App. 4 Cir. 9/18/19), 280 So.3d 718, writ granted, 2019-

01668 (La. 6/3/20), ___ So.3d___. For the reasons that follow, we vacate Jonterry Bernard’s conviction and remand for further proceedings.

RELEVANT FACTS AND PROCEDURAL HISTORY Jonterry Bernard (hereinafter “Mr. Bernard”) was convicted of two counts of attempted second-degree murder by a ten to two jury verdict. On December 1, 2015, the same day his motion for new trial was denied, Mr. Bernard was sentenced to fifty-years, on each count, to run consecutively, at hard labor, without the benefit of parole, probation or suspension of sentence. This Court affirmed his conviction and remanded the matter for resentencing on other grounds.1 Bernard,

1 This Court found that the “failure of the trial court to observe the statutorily mandated twentyfour hour delay requires that the sentence be vacated and the matter remanded for resentencing.”

Bernard, 2019-0208, p. 8, 280 So.3d at 724.

2

p. 9, 280 So.3d at 724. Mr. Bernard sought review by the Louisiana Supreme Court. During the pendency of his writ application, the United States Supreme Court issued its ruling in Ramos. Thereafter, the Louisiana Supreme Court granted Mr. Bernard’s writ application specifically regarding the issue of the non- unanimous jury verdict. Bernard, 2019-0208 (La.App. 4 Cir. 9/18/19), 280 So.3d 718, writ granted, 2019-01668 (La. 6/3/20), ___ So.3d___.

DISCUSSION

On appeal, one of Mr. Bernard’s assignments of error challenged the constitutionality of his conviction for two counts of attempted second-degree murder by a non-unanimous jury verdict. Under Ramos, jury verdicts for felony convictions must be unanimous. Ramos v. Louisiana, No. 18-5924, 590 U.S. ___, 140 S.Ct. 1390, ___ L.Ed.2d ___ (2020), 2020 WL 1906545. Since Mr. Bernard’s case was pending on direct review when Ramos was decided, the United States Supreme Court’s decision is applicable. See Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 2522, 159 L.Ed. 442 (2004) (observing that “[w]hen a decision of [the United States Supreme Court] results in a ‘new rule,’ that rule applies to all criminal cases still pending on direct review”). Therefore, because Mr. Bernard’s conviction was based on a non-unanimous jury verdict, his conviction is vacated.

3

DECREE

For the foregoing reasons, Mr. Bernard’s conviction for two counts of attempted second-degree murder is vacated and the matter remanded for further proceedings.

VACATED AND REMANDED