State of Louisiana Versus John W. Patton

• Court: Louisiana Court of Appeal
• Decided: November 17, 2021
• Docket: 21-KA-613
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 21-KA-613

VERSUS FIFTH CIRCUIT

JOHN W. PATTON COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-7474, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

November 17, 2021

MARC E. JOHNSON JUDGE

Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Stephen J. Windhorst

SENTENCES VACATED; REMANDED FOR RESENTENCING MEJ JGG SJW COUNSEL FOR DEFENDANT/APPELLANT, JOHN W. PATTON Prentice L. White JOHNSON, J.

Defendant, John W. Patton, appeals his convictions and sentences for

attempted second degree rape, false imprisonment while armed with a dangerous

weapon, second degree rape, and sexual battery from the 24th Judicial District

Court, Division, “J”. For the following reasons, we vacate Defendant’s sentences

and remand the matter to the trial court for resentencing.

On November 30, 2018, Defendant was charged with attempted second

degree rape (count one), in violation of La. R.S. 14:27 and La. R.S. 14:42.1; false

imprisonment while armed with a dangerous weapon (count two), in violation of

La. R.S. 14:46.1; second degree rape (count three), in violation of La. R.S. 14:42.1;

and sexual battery (count four), in violation of La. R.S. 14:43.1. Defendant

pleaded not guilty to the charged offenses.

Trial commenced before a 12-person jury on April 12, 2021. After eight

days, the jury unanimously found Defendant guilty on all four counts. On May 6,

2021, Defendant filed a “Motion for New Trial,” which was denied by the trial

court on May 14, 2021. On May 19, 2021, Defendant was sentenced to 15 years

imprisonment on count one, 10 years imprisonment on count two, 35 years

imprisonment without the benefit of parole, probation, or suspension of sentence

on count three, and 10 years imprisonment without the benefit of parole, probation,

or suspension of sentence on count four. The trial court ordered that all the

sentences be served at hard labor, and that counts two, three, and four be

concurrently served “with one another” and consecutively served to count one.

Defendant filed a “Motion for Appeal,”1 which was granted by the trial court

on May 14, 2021. The motion for appeal was granted prior to Defendant’s

sentencing on May 19, 2021. Defendant’s appeal was lodged with this Court on

September 21, 2021.

1 Defendant filed the motion for appeal on May 7, 2021.

21-KA-613 1 Pursuant to La. C.Cr.P. art. 916, a trial court is divested of jurisdiction, and

the jurisdiction of the appellate court attaches upon the granting a defendant’s

motion for appeal. When issues raised on appeal involve actions taken by the trial

court after it was divested of jurisdiction, the appropriate action is to vacate those

actions and remand the matter. See, State v. Johnson, 13-75 (La. App 5 Cir.

10/9/13); 128 So.3d 325, 329. Once a trial court is divested of jurisdiction, it may

only take certain specified actions. See, La. C.Cr.P. art. 916. Imposing a sentence

for an underlying offense is not included in the list of specified actions in La.

C.Cr.P. art. 916.

In State v. Calloway, 18-708 (La. App. 5 Cir. 4/24/19); 271 So.3d 349, the

defendant sought review of his consecutive sentences for second degree murder

and obstruction of justice. This Court noted that in State v. Victor, 13-888 (La.

App. 5 Cir. 12/23/14); 167 So.3d 118, it had found the trial court’s imposition of

sentence after it was divested of jurisdiction was harmless error, after specifically

noting that the defendant did not raise any sentencing issues on appeal. However,

unlike in Victor, this Court vacated the defendant’s sentences for his second degree

murder and obstruction of justice convictions and remanded the matter for

resentencing, after finding that the trial court was divested of jurisdiction upon

granting the motion for appeal and that the only assignments of error that the

defendant raised involved sentencing issues. Id. at 352.

In the present case, upon granting Defendant’s motion for appeal on May 14,

2021, the trial court was divested of jurisdiction to subsequently sentence

Defendant on May 19, 2021. Therefore, we find that the motion for appeal was

prematurely granted before sentencing. Accordingly, we vacate Defendant’s

sentences for attempted second degree rape (count one), false imprisonment while

armed with a dangerous weapon (count two), second degree rape (count three), and

21-KA-613 2 sexual battery (count four), and remand the matter to the trial court for

resentencing.

SENTENCES VACATED; REMANDED FOR RESENTENCING

21-KA-613 3 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY NOVEMBER 17, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-KA-613 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE) THOMAS J. BUTLER (APPELLEE) PRENTICE L. WHITE (APPELLANT)

MAILED NO ATTORNEYS WERE MAILED