Opinion
NUMBER 2023 KA 0643
12-27-2023
STATE of Louisiana v. Joshua James SIMON
Kristine M. Russell, District Attorney, Joseph S. Soignet, Allie Foumet, Assistant District Attorneys, Thibodaux, Louisiana, Counsel for Appellee State of Louisiana Gwendolyn K. Brown, Baton Rouge, Louisiana, Counsel for Defendant/Appellant Joshua James Simon
Appealed from the Seventeenth Judicial District Court, In and for the Parish of Lafourche, State of Louisiana, Docket Number 581591, The Honorable Marla M. Abel, Judge Presiding
Kristine M. Russell, District Attorney, Joseph S. Soignet, Allie Foumet, Assistant District Attorneys, Thibodaux, Louisiana, Counsel for Appellee State of Louisiana
Gwendolyn K. Brown, Baton Rouge, Louisiana, Counsel for Defendant/Appellant Joshua James Simon
BEFORE: GUIDRY, C.J., CHUTZ, AND LANIER, JJ.
GUIDRY, C.J.
2The defendant, Joshua James Simon, was charged by amended bill of information with the simple kidnapping of M.B. (count I), a violation of La. R.S. 14:45; aggravated second degree battery (count III), a violation of La. R.S. 14:34.7, and domestic abuse battery by burning (count IV), a violation of La. R.S. 14:35.3(M)(1). He pled not guilty on all counts. Following a jury trial, he was found guilty as charged on all counts. On count I, the defendant was sentenced to five years at hard labor without benefit of parole, probation, or suspension of sentence to be served consecutively to the sentences imposed on counts III and IV; on count III, he was sentenced to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence to be served consecutively to the sentences imposed on counts I and IV; and on count IV, he was sentenced to three years at hard labor without benefit of parole, probation, or suspension of sentence to be served consecutively to the sentences imposed on counts I and III.
This case involves a crime victim who was a minor under the age of eighteen at the time of the commission of count I Accordingly, we reference the victim and her relatives only by their initials. See La. R.S. 46:1844(W); State v Mangrum, 20-0243 (La. App. 1st Cir. 2/22/21), 321 So. 3d 986, 989 n.1, writ denied, 21-00401 (La. 10/1/21), 324 So. 3d 1050.
The State entered a Nolle prosequi on count II.
Following an appeal, this court affirmed the convictions on counts I, III, and IV, affirmed the sentence on count IV, vacated the sentences on counts I and III, and remanded for resentencing. State v. Simon, 22-0726 (La. App. 1st Cir. 12/22/22), 360 So. 3d 528 (Simon I).
Upon remand, during a hearing where the defendant was not represented by counsel, the court sentenced the defendant to five years at hard labor on count I and fifteen years at hard labor on count III, ordering the sentences to run 3consecutively. The defendant now appeals contending the trial court erred in sentencing him without either appointing counsel to represent him or without obtaining a waiver of counsel from him, imposing excessive sentences, and denying his motion to reconsider sentence. For the following reasons, we vacate the sentences and remand for resentencing.
RIGHT TO COUNSEL AT RESENTENCING
[1] In assignment of error number one, the defendant contends the trial court erred by conducting the resentencing hearing, a critical phase in the proceedings, without either appointing counsel to represent him or obtaining a valid waiver of his right to counsel. Resentencing was held in this matter on March 10, 2023. The defendant was present pro se. Attorney Maria Dugas was present as a representative of the Office of the Public Defender (OPD) and asked the court to confirm her understanding that OPD had been reappointed to represent the defendant for resentencing. The trial court stated the indigent defender board had not been appointed to represent the defendant for resentencing. The court asked the defendant if he would like the public defender’s office to represent him, and he replied, "I mean, we could do it like a, like a together thing maybe." The court stated the purpose of the hearing was "not to have the sentencing hearing redone." The defendant attempted to voice his concerns to Attorney Dugas that a presentence investigation report (PSI) was not ordered prior to sentencing and that the nurses and doctors who treated the victim were not called as witnesses. However, the court prohibited him from speaking to Dugas. The defendant asked the court if a PSI could be prepared, and if he could come back because he was not 4expecting to be put "on the spot", but the court refused. The court stated the matter was on remand for the court to "correct its sentence in the regards of placing the restriction of without benefit of parole on count 1 and count 3." Thereafter, the court sentenced the defendant to five years at hard labor on count I and fifteen years at hard labor on count III, with the sentences to run consecutively. The court again stated the purpose of the hearing was "simply to have the [c]ourt remove the restriction of without benefit on count 1 and count 3." The defendant stated he had not asked to "go pro se[,]" but had asked "if [Attorney Dugas] could help [him]."
Following resentencing, the court answered affirmatively when Dugas asked the court to clarify that the Public Defender’s Office was not representing the defendant and had not represented him during the hearing.
[2–4] An accused has a constitutional right to the assistance of counsel at every stage of criminal proceedings. La. Const. art. I, § 13 (1974), Likewise, the constitutional right to the assistance of counsel provided by the Sixth Amendment of the United States Constitution mandates the right, unless waived, to the assistance of counsel at every critical stage of the proceedings, including an initial or deferred sentencing. Sentence imposed without the presence of the defendant’s attorney is illegal and of no effect, for certain vital issues cannot be raised and important rights may be lost if not raised or exercised prior to this stage of the proceedings. Unless a defendant has made a knowing and intelligent waiver of his right to counsel, any sentence imposed in the absence of counsel is invalid and must be set aside. State v. Chatman, 20-0592 (La. App. 1st Cir. 2/19/21), 320 So. 3d 1167, 1170-71.
See also La. C.Cr P. art. 511 ("[t]he accused in every instance has the right to defend himself and to have the assistance of counsel.").
[5, 6] The determination of whether there has been an intelligent waiver of the right to counsel depends upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Thus, before a 5trial judge can allow a defendant to represent himself, he must determine whether the defendant’s waiver of counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. State v. Paschal, 06-0824 (La. App. 1st Cir. 11/3/06), 2006 WL 3108161, *2 (unpublished).
The State, citing La. C.Cr.P. art. 881.5, argues the purpose of the hearing on remand was to correct a clerical matter and it was unnecessary for the defendant to be represented, to-wit:
On motion of the state or the defendant, or on its own motion, at any time, the court may correct a sentence imposed by that court which exceeds the maximum sentence authorized by law.
See also La C.Cr P art. 882(A) ("An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.").
We disagree. This matter did not involve amendment or correction of sentence, but rather resentencing. On original appeal, the sentences on counts I and III were vacated, and the case was remanded for resentencing on those counts in accordance with law. Simon I, 360 So. 3d at 539. See La. C.Cr.P. art. 881.4(A) ("If the appellate court finds that a sentence must be set aside on any ground, the court shall remand for resentence by the trial court."). Thus, the trial court had considerable discretion to resentence the defendant within the sentencing ranges applicable to counts I and III, and with regard to whether or not the sentences should run concurrently with, or consecutively to, each other, and the defendant was entitled to representation by counsel. The trial court specifically stated the 6defendant was not represented by counsel. Moreover, the defendant stated that he had not asked to represent himself, nor did the trial court inquire into whether such a waiver of the right to counsel, had one been made, was knowing or voluntary. Accordingly, the sentences imposed on counts I and III are vacated, and this matter is remanded for resentencing on those counts in accordance with law. See State v. Fuller, 54,997 (La. App. 2d Cir. 5/10/23), 361 So. 3d 1221, 1227 ("as a result of this [c]ourt’s [vacating the prior sentence], there was no sentence imposed upon the defendant, and as such, there was no longer a sentence in place which could be ‘clarified’ or modified. Since the defendant’s sentence had been vacated, resentencing was necessary, and the defendant had a constitutional right to have counsel present for resentencing."); compare State v. Bryant, 53,078 (La. App. 2d Cir. 11/20/19), 285 So. 3d 513, 516, writ denied, 20-00077 (La. 7/31/20), 300 So. 3d 392 (appointment of counsel was not warranted at a resentencing hearing where resentencing was merely a ministerial and nondiscretionary correction of parole eligibility in defendant’s favor).
On count I, the defendant was exposed to a fine from zero to five thousand dollars and a sentence from zero to five years with or without hard labor. See La. R.S. 14:45(B).
On count III, the defendant was exposed to a fine from zero to ten thousand dollars and a sentence from zero to fifteen years with or without hard labor. See La. R.S. 14.34.7(C).
See La. C.Cr.P. art. 883.
The defendant in Bryant was convicted of one count of attempted simple burglary of an inhabited dwelling, adjudicated a fourth-felony habitual offender with a prior crime of violence, and sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence. On supervisory review, the court held the defendant's sentence was illegal to the extent that it denied parole for the entirety of the sentence because La. R.S. 14:62.2 prohibited parole for only the first year of the sentence. Thereafter, finding that a nondiscretionary and ministerial correction of a sentence under La. C.Cr.P. art. 882 was not accompanied by the right to counsel, the court remanded for resentencing with regard to the eligibility for parole without disturbing the term of the sentence. Bryant, 285 So. 3d at 515
This assignment of error has merit.
EXCESSIVE SENTENCES
In assignment of error number two, the defendant contends the trial court erred in imposing the sentences consecutively. In assignment of error number three, the defendant contends the sentences are illegally excessive. In assignment 7of error number four, the defendant contends the trial court erred by denying the motion to reconsider sentence.
Our disposition of assignment of error number one causes us to pretermit consideration of these assignments of error.
SENTENCES VACATED; REMANDED WITH INSTRUCTIONS.