Opinion
No. 22-KA-67.
11-02-2022
STATE of Louisiana v. Burnell GORDON.
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Ricky L. Babin , Lindsey D. Manda , Donald D. Candell , Gonzales. COUNSEL FOR DEFENDANT/APPELLANT, BURNELL GORDON, Katherine M. Franks . Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst.
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Ricky L. Babin , Lindsey D. Manda , Donald D. Candell , Gonzales.
COUNSEL FOR DEFENDANT/APPELLANT, BURNELL GORDON, Katherine M. Franks .
Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst.
JOHNSON, J.
Defendant, Burnell Gordon, appeals his convictions and sentences for manslaughter and possession of a firearm by a convicted felon by a non-unanimous jury in the 23rd Judicial District Court for the Parish of St. James. For the following reasons, we vacate his convictions and sentences and remand the matter for further proceedings.
FACTS AND PROCEDURAL HISTORY
On October 4, 2016, a 23rd Judicial District Court Grand Jury indicted defendant, Burnell Gordon, with second degree murder in violation of La. R.S. 14:30.1 (count one) and possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count two).
On January 29, 2019, the case proceeded to trial, and on January 31, 2019, the jury found defendant guilty of manslaughter on count one by a vote of 11 to 1, and guilty as charged on count two. On April 29, 2019, the district court sentenced defendant to the Department of Corrections for thirty years on count one and to the Department of Corrections for twenty years without the benefit of parole, probation, or suspension of sentence, and a fine of $5,000 on count two, with the sentences to run concurrently. Defense counsel did not verbally notice his intent to appeal but filed a written motion for appeal on June 3, 2019 that was denied as untimely on June 26, 2019.
The jury was polled per Defendant's request, but the judge advised the jurors that they would each receive one form on which they were to indicate whether they "voted in favor of those verdicts or not". Both the State and Defendant state in their briefs that the verdicts for both counts were non-unanimous.
On October 28, 2019, Defendant admitted the allegations of the multiple bill alleging that he was a third felony offender as to count one. That same day, defense counsel filed a written "Motion for Reconsideration of Judgment to Deny Defendant's Motion for Appeal and Designation of the Record," arguing that he had attempted to timely file the motion for appeal by fax on May 28, 2019, but later learned from the Clerk of Court that they were having technical difficulties. The district court denied Defendant's motion for reconsideration. On November 6, 2019, the district court denied Defendant's "Notice of Intent to Seek Supervisory Writs with the Louisiana Fifth Circuit Court of Appeals" regarding the district court's denial of his motion to appeal filed on June 3, 2019 as untimely.
On January 27, 2020, Defendant was adjudicated a third felony offender and sentenced to the Department of Corrections for forty-five years at hard labor on count one and to the Department of Corrections for twenty years without the benefit of parole, probation, or suspension of sentence and a $5,000 fine on count two, with the sentences to run concurrently. At the end of the hearing, defense counsel orally noticed his intent to appeal. On September 9 and 20, 2021, Defendant filed an application for post-conviction relief (APCR) and motion for out-of-time appeal pursuant to State v. Counterman, 475 So.2d 336 (La. 1985). On September 23, 2021, the district court granted Defendant an out-of-time appeal to appeal his original convictions and sentences and also appointed Louisiana Appellate Project to represent Defendant.
ASSIGNMENTS OF ERROR
Defendant contends that his convictions by a non-unanimous jury are in violation of Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020). Further, he argues that he should not be retried for the offense of second degree murder on remand as this Court determined that following the setting aside of a non-unanimous jury verdict for a lesser included offense the defendant could not face trial for a greater offense than that for which the original verdict was rendered. See State v. Gasser, 21-255 (La. App. 5 Cir. 12/16/21), 335 So.3d 342, writ granted, 22-64 (La. 3/2/22), 333 So.3d 823, affirmed, 22-64 (La. 6/1/22), 346 So.3d 249.
LAW AND DISCUSSION
In the instant case, Defendant was charged with second degree murder (count one) and possession of a firearm by a convicted felon (count two). Since the punishments for the offenses in counts one and two were necessarily confinement at hard labor, a jury of twelve persons was required. See La. Const. Art. I, § 17; La. C.Cr.P. art. 782. A conviction of second degree murder, in violation of La. R.S 14:30.1, results in a sentence of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. A conviction of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1, has a sentencing range of five to twenty years, without benefits, and a fine of one to five thousand dollars.
In Ramos, the United States Supreme Court found that the Sixth Amendment right to a jury trial, as incorporated against the states by the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. The Court concluded, "There can be no question either that the Sixth Amendment's unanimity requirement applies to state and federal criminal trials equally... So if the Sixth Amendment's right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court." Ramos, 140 S.Ct. at 1397. Pursuant to Ramos, Louisiana must retry defendants who have been convicted of serious offenses by non-unanimous juries whose cases are still pending on direct review. See State v. Spottsville, 20-99 (La. App. 5 Cir. 12/23/20), 308 So.3d 1240; State v. Kelly, 19-425 (La. App. 5 Cir. 7/31/20), 299 So.3d 1284; State v. Rivas, 19-378 (La. App. 5 Cir. 5/21/20), 296 So.3d 1198. The State acknowledges that the Supreme Court's holding in Ramos requires that in all criminal cases, the conviction must be by a unanimous verdict and the record in the instant case reflects that defendant's jury convictions were non-unanimous. Because the verdicts for these serious offenses were not unanimous and the case is still on direct review, Defendant is entitled to a new trial on counts one and two pursuant to the holding in Ramos. See State v. Alexander, 20-95 (La. App. 5 Cir. 11/3/21), 330 So.3d 1179, 1182; State v. Dumas, 21-143 (La. App. 5 Cir. 11/24/21), 330 So.3d 1263, 1264. Therefore, we vacate Defendant's convictions and sentences on counts one and two and his multiple offender stipulation and enhanced sentence on count one.
For purposes of the Sixth Amendment, federal law defines serious offenses as offenses subject to imprisonment over six months. State v. Harrell, 19-371 (La. App. 5 Cir. 7/8/20), 299 So.3d 1274, 1283.
We pretermit discussion of Defendant's second assignment of error regarding whether he should be retried for the offense of second degree murder. The issue is premature as the State has not indicated that it would seek to re-try Defendant for second degree murder. See Alexander, supra at 1182, n.3.
DECREE
Considering the foregoing, we vacate Defendant's sentences and convictions on counts one and two, and his multiple offender stipulation and enhanced sentence on count one. The matter is remanded for further proceedings consistent with this opinion.