Opinion
NO. 2021-KA-0315
12-01-2021
STATE of Louisiana v. Regan PREATTO
Jason Rogers Williams, DISTRICT ATTORNEY, ORLEANS PARISH, David B. LeBlanc, ASSISTANT DISTRICT ATTORNEY, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR THE STATE OF LOUISIANA Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, P. O. Box 2333, Marrero, LA 70073-2333, COUNSEL FOR DEFENDANT/APPELLANT
Jason Rogers Williams, DISTRICT ATTORNEY, ORLEANS PARISH, David B. LeBlanc, ASSISTANT DISTRICT ATTORNEY, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR THE STATE OF LOUISIANA
Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, P. O. Box 2333, Marrero, LA 70073-2333, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Paula A. Brown )
Judge Edwin A. Lombard
In this appeal, the defendant challenges his convictions as unconstitutional pursuant to Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L.Ed. 2d 583 (2020). The State does not dispute that, in accordance with current jurisprudence, the convictions are unconstitutional.
Relevant Facts and Procedural History
On September 20, 2019, by ten-to-two votes, a non-unanimous jury found Regan Preatto guilty on two counts: (1) third degree rape and (2) aggravated crime against nature where the victim is under the age of eighteen and the offender is biologically related to the victim. In February 2020, he was sentenced to twenty-five years imprisonment in connection with his third degree rape conviction, to be served without the benefit of probation, parole or suspension of sentence. With respect to his aggravated crime against nature conviction, the court sentenced defendant to twenty years imprisonment, specifying that the terms were to be served concurrently. After a multiple-offender adjudication, the district court found the defendant to be a fourth-felony offender, vacated the earlier sentences, and sentenced the defendant on both counts to serve the remainder of his natural life, without the benefit of probation, parole, or suspension of sentence, in the custody of the Department of Corrections.
Following sentencing, the district court granted the defendant's oral motion for appeal and request for appointment of the Louisiana Appellate Project on appeal. This appeal was timely filed.
Discussion
At the time of the defendant's trial and conviction in September 2019, Louisiana law allowed non-unanimous jury verdicts in felony trials. In April 2020, while the defendant's appeal was pending, the United States Supreme Court rendered its decision in Ramos v. Louisiana, setting forth a new constitutional rule: the Sixth Amendment right to a jury trial, as incorporated against the states through the Fourteenth Amendment, requires a unanimous jury verdict to convict a defendant of a serious offense. In addition, Ramos invalidated the non-unanimous convictions of defendants who preserved the issue for review in cases still on direct appeal. Ramos, 140 S. Ct. at 1406-08 ; see also Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L.Ed.2d 649 (1987) ("a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final").
Since Ramos, this court has consistently vacated convictions based on non-unanimous jury verdicts in cases pending on appeal. See, e.g., State v. Myles , 2019-0965 (La. App. 4 Cir. 4/29/20), 299 So.3d 643 ; State v. Donovan , 2019-0722 (La. App. 4 Cir. 5/27/20), 301 So.3d 541 ; State v. Hunter , 2019-0901 (La. App. 4 Cir. 5/27/20), ––– So.3d ––––, 2020 WL 2751914. Moreover, in this case, the defendant specifically preserved the non-unanimous jury verdict as an issue for review on appeal by filing a pre-trial motion to declare La. Code Crim. Proc. art. 782(A) and La. Const. Art. 1 Sec. 17 unconstitutional for allowing non-unanimous jury verdicts and by requesting jury instructions requiring a unanimous verdict. Therefore, the defendant's underlying convictions must be vacated.
The defendant also argues on appeal that the district court erred in adjudicating him to be a fourth-felony offender because the State's evidence failed to prove the validity of the Texas guilty plea and, absent the Texas conviction, defendant's prior convictions fall outside the cleansing period. In light of the defendant's convictions being vacated, the defendant's habitual offender adjudication and sentences are necessarily vacated, rendering this issue moot. See State v. DeGruy, 2020-0290, p. 6 (La. App. 4 Cir. 10/29/20), 307 So.3d 258, 263 (excessive sentence claim rendered moot in light of fact that convictions were vacated pursuant to Ramos ); State v. Barnes, 53,917, p. 5 (La. App. 2 Cir. 5/5/21), 318 So.3d 1100, 1103 ("Because the underlying conviction is vacated [pursuant to Ramos ], we further vacate [defendant's] habitual offender adjudication and sentence."); State v. Bryant, 53,321 (La. App. 2 Cir. 9/1/21), 326 So.3d 967 (same); State v. Warren, 2019-1410 (La. App. 1 Cir. 7/24/20), 2020 WL 4250839 (same).
Conclusion
After review of the record in light of the applicable law and arguments of the parties, the defendant's convictions, habitual offender adjudications, and sentences are vacated. The matter is remanded to the district court for further proceedings.