Opinion
15-930
02-03-2016
STATE OF LOUISIANA v. LARRY JOSEPH MCKITHERN aka LARRY J. MCKITHERN aka LARRY MCKITHERN
CARLA SIGLER KAREN MCLELLAN ASSISTANT DISTRICT ATTORNEYS 901 LAKESHORE DRIVE, SUITE 600 (337) 437-3325 LAKE CHARLES, LA 70601 COUNSEL FOR APPELLEE: State of Louisiana EDWARD K. BAUMAN LA APPELLATE ATTORNEY P.O. BOX 1641 LAKE CHARLES, LA 70602-1641 (337) 491-0570 COUNSEL FOR APPELLANT: Larry Joseph McKithern aka Larry J. McKithern aka Larry McKithern
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 25391-09
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
APPEAL DISMISSED.
CARLA SIGLER
KAREN MCLELLAN
ASSISTANT DISTRICT ATTORNEYS
901 LAKESHORE DRIVE, SUITE 600
(337) 437-3325
LAKE CHARLES, LA 70601
COUNSEL FOR APPELLEE:
State of Louisiana EDWARD K. BAUMAN
LA APPELLATE ATTORNEY
P.O. BOX 1641
LAKE CHARLES, LA 70602-1641
(337) 491-0570
COUNSEL FOR APPELLANT:
Larry Joseph McKithern
aka Larry J. McKithern
aka Larry McKithern
Gremillion, Judge.
On December 2, 2010, Defendant-Appellant was convicted of armed robbery and aggravated arson in docket number 25391-09. On March 9, 2011, in docket number 3678-11, Defendant-Appellant was adjudicated a second habitual offender and was sentenced to one hundred and thirty years on the charge of armed robbery and thirty years on the charge of aggravated arson. The sentences were ordered to run consecutively. On appeal, Defendant-Appellant's convictions were affirmed; the habitual offender adjudication and sentences were vacated and remanded to the trial court for further proceedings and resentencing. State v. McKithern, 11-1111 (La.App. 3 Cir. 5/2/12), 93 So.3d 697, writ denied, 12-1653 (La. 1/1/13), 108 So.3d 782; State v. McKithern, 11-1402 (La.App. 3 Cir. 5/2/12), 93 So.3d 684, writ denied, 12-1653 (La. 3/1/13), 108 So.3d 782.
On May 19, 2014, at the hearing on Defendant-Appellant's habitual offender adjudication in docket number 3678-11, Defendant-Appellant was resentenced to one hundred and ten years on the armed robbery charge and twenty years on the aggravated arson charge. The sentences were ordered to run consecutively without the benefit of probation, parole, or suspension of sentence.
In response to two motions and orders for appeal in docket number 3678-11 and 25391-09, the trial court, although acknowledging the motions sought an appeal, ordered Defendant-Appellant to submit a writ application to this court. Defendant-Appellant filed a writ application in this court, and this court issued the following ruling:
WRIT GRANTED AND MADE PEREMPTORY IN PART; WRIT DENIED IN PART: Relator is entitled to an appeal of his May 19, 2014, habitual offender adjudication and sentencing, and his request for an appeal was timely sought. La.Code Crim.P. arts. 912 and 914. Accordingly, we vacate both the trial court's June 10, 2014, ruling ordering Relator to submit a writ application and its September
25, 2014, order denying Relator's second motion for appeal. The trial court is ordered to grant Relator's request for appeal of the May 19, 2014, habitual offender adjudication and sentencing. If Relator is found indigent, counsel shall be appointed to represent him on appeal. Relator's request for the inclusion in the appellate record of certain motions, transcripts, and evidence is considered as a pro se motion for designation of the record which is remanded to the trial court for consideration in conjunction with the granting of the aforementioned appeal. Relator's request for mandamus relief on his motion to reconsider sentence, motion to stay appeal, and pro se motions for appeal are denied as moot.State v. McKithern, 14-842 (La.App. 3 Cir. 5/19/15) (unpublished opinion).
On September 30, 2015, this court lodged the record of appeal in docket number 25391-09, which is the instant case. On the same date, this court also lodged the record of appeal in docket number 3678-11, which was assigned docket number 15-931. On October 8, 2015, this court issued a rule to show cause why the appeal in the instant case should not be dismissed, as the judgment being appealed was rendered on May 19, 2014, which relates to the habitual offender docket number 3678-11 and as this court affirmed Defendant-Appellant's convictions in docket number 25391-09. See McKithern, 11-1402 and McKithern, 11-1111.
On December 4, 2015, Defendant-Appellant filed a "Pro Se Supplemental Brief In Responses To The Order To Show Cause Issued 10-29-15, And Now Respectfully Submitted" with this court. Defendant-Appellant asserts in his brief:
On 5-19-2014, the district court resentenced petitioner under both counts - only this time the La.R.S[.] 14[:]64[,] arm[ed] robbery was 110 years under docket no. 3678-11 - and the 20 years RS[.] 14[:]51 was under criminal court docket 25391-09.
The court has - 2 sentence[s] - with one docket no[.] in relation to 15[:]529.1[,] docket no[.] 3678-11 - and 14[:]51 being a sentence under 25391-09. The appeal is proper - This court has appellate jurisdiction pursuant to article 5 section 10 of the Louisiana Constitution - 1974. Also art 1 subs 19 [sic]-
As stated above, this court affirmed Defendant-Appellant's convictions on appeal in docket number 25391-09. See McKithern, 93 So.3d 684. The appeal of Defendant-Appellant's habitual offender adjudication in docket number 3678-11 is pending before this court in docket number 15-931. Accordingly, we hereby dismiss Defendant-Appellant's appeal in the instant case.