State of Louisiana Versus Michael Anthony Short

• Court: Louisiana Court of Appeal
• Decided: February 27, 2023
• Docket: 22-KA-263
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 22-KA-263

VERSUS FIFTH CIRCUIT

MICHAEL ANTHONY SHORT COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 19-6094, DIVISION "E" HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

February 27, 2023

SUSAN M. CHEHARDY CHIEF JUDGE

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg

SENTENCE VACATED, CASE REMANDED SMC FHW HJL COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Monique D. Nolan Gabrielle Hosli Kristen Landrieu

COUNSEL FOR DEFENDANT/APPELLANT, MICHAEL ANTHONY SHORT Bertha M. Hillman CHEHARDY, C.J.

On February 14, 2020, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Michael Anthony Short, with one count of

introducing or possessing contraband in the form of a makeshift weapon into the

Jefferson Parish Correctional Center, a violation of La. R.S. 14:402. Defendant

pled not guilty. On April 21, 2022, a six-person jury unanimously found defendant

guilty as charged.

On April 27, 2022, before sentencing, defendant filed a Motion for New

Trial and a Motion for Post-Verdict Judgment of Acquittal. At the sentencing

hearing later the same day, the trial court sentenced defendant to ten years in the

Department of Corrections.1 Immediately after sentencing, the trial court denied

defendant’s motion for new trial and motion for post-verdict judgment of

acquittal.2 Defendant objected, and on May 2, 2022, he filed a Motion for

Reconsideration of Sentence and a Motion for Appeal. On May 4, 2022, the trial

court denied defendant’s motion for reconsideration and granted his motion for

appeal.3

Defendant’s sole assignment of error on appeal is that his sentence is

constitutionally excessive.

1 This Court has previously held that when the trial judge states that the defendant is sentenced to the “Department of Corrections,” the sentence is necessarily at hard labor. State v. Jamison, 17- 49 (La. App. 5 Cir. 5/17/17), 222 So.3d 908, 909 n.2. 2 The trial court signed the orders denying both motions on May 2, 2022. 3 It is not clear from the record whether the trial court denied defendant’s motion for reconsideration of sentence before or after ruling on defendant’s motion for appeal. Regardless of the order of the trial court’s rulings, the court maintained jurisdiction to rule on the timely filed motion to reconsider sentence under La. C.Cr.P. art. 916(3), which provides in pertinent part:

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to: *** (3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.

22-KA-263 1 Our review of the record reveals errors patent in conjunction with

defendant’s timely filed motion for new trial and motion for post-verdict judgment

of acquittal, because the trial court denied these motions after imposing

defendant’s sentence on April 27, 2022.

La. C.Cr.P. art. 821(A) requires that a motion for post-verdict judgment of

acquittal be made and disposed of before sentencing. State v. Christian, 05-635

(La. App. 5 Cir. 2/3/06), 924 So.2d 266, 267. Similarly, La. C.Cr.P. art. 853(A)

provides that a motion for new trial generally must be filed and disposed of before

sentencing. State v. Barnes, 11-80 (La. App. 5 Cir. 12/13/11), 92 So.3d 9, 12, writ

denied, 12-951 (La. 11/9/12), 100 So.3d 828. See also State v. Aguliar-Benitez, 16-

336 (La. App. 5 Cir. 12/7/16), 206 So.3d 472, 473 (vacating the trial court’s denial

of the defendant’s motion for new trial, which was denied after his sentence was

imposed); State v. Common, 10-996 (La. App. 5 Cir. 11/15/11), 78 So.3d 237, 245,

writ denied, 11-2779 (La. 9/28/12), 98 So.3d 825 (vacating an enhanced sentence,

remanding for a hearing on the motions for post-verdict judgment of acquittal and

new trial, and for resentencing).

Given the trial court’s procedural error, we pretermit discussion of

defendant’s assignment of error regarding the constitutionality of his sentence. We

vacate defendant’s sentence, vacate the trial court’s rulings on defendant’s

motions, and remand for the trial court to rule on defendant’s motion for post-

verdict judgment of acquittal, his motion for new trial, and for resentencing.4

Defendant’s right to appeal any adverse ruling on his motions, or his new sentence,

is preserved.

SENTENCE VACATED, CASE REMANDED

4 At the time of sentencing, the trial court also failed to advise defendant of his right to post- conviction relief pursuant to La. C.Cr.P. art. 930.8. The trial court may properly advise defendant if he is resentenced.

22-KA-263 2 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN 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 FEBRUARY 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-KA-263 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE) MONIQUE D. NOLAN (APPELLEE) THOMAS J. BUTLER (APPELLEE) BERTHA M. HILLMAN (APPELLANT)

MAILED HONORABLE PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY GABRIELLE HOSLI (APPELLEE) KRISTEN LANDRIEU (APPELLEE) ASSISTANT DISTRICT ATTORNEYS TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053