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Date: 06-28-2021
Case Style:
State of Louisiana v. Jonathan O. Barnes
Case Number: 53,917-KA
Judge: John M. Robinson
Court: COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
Plaintiff's Attorney: RICHARD CHRISTOPHER NEVILS
District Attorney
+
STEVEN D. CREWS
COLE B. SMITH
Assistant District Attorneys
*
Defendant's Attorney:
Description:
Shreveport LA - Criminal defense attorney represented Jonathan Barnes with possession a firearm by a convicted felon charge.
Barnes, who was driving alone in his girlfriend’s car, was pulled over
by a Winnfield Police Department officer on November 1, 2016. A pistol
was found under the driver’s seat following a canine search. Barnes had
pled guilty in 2014 to possession of hydrocodone, a Schedule III controlled
dangerous substance.
Barnes was charged by bill of information with improper passing on
the right shoulder in violation of La. R.S. 32:74(B), resisting an officer in
violation of La. R.S. 14:108, and possession of a firearm by a convicted
felon in violation of La. R.S. 14:95.1. The matter proceeded to trial only on
the firearm possession charge. On April 26, 2017, Barnes was convicted as
charged by a 10-2 jury verdict. The trial transcript shows that the jury was
polled by written vote. This is also shown in the court minutes. A motion
for new trial was denied two months later. 2
On August 15, 2017, Barnes was sentenced to ten years at hard labor
without benefit of parole, probation, or suspension of sentence. Barnes
signed a notice that he had been advised of the time limits to apply for postconviction relief. His trial counsel told the trial court that he had “one more
motion to file and then the appeal.” By letter dated June 29, 2017, the
Louisiana Appellate Project had notified this Court that it had assigned an
attorney to handle Barnes’s appeal. However, no appeal was taken from his
conviction or sentence.
An habitual offender proceeding was held on February 21, 2018. The
predicate offense was a 2009 guilty plea to possession of cocaine. Pursuant
to an agreement and an admission by Barnes that he is an habitual offender,
the trial court vacated the ten-year sentence and imposed an habitual
offender sentence of twelve years at hard labor. The trial court did not
advise Barnes of his rights or question him about his admission to the
habitual offender charge. Barnes did not speak at the hearing. Barnes was
again advised of the time limits to apply for post-conviction relief.
Barnes filed a motion for an out-of-time appeal on March 9, 2020,
followed two days later by an amended motion for an out-of-time appeal.
The motions were denied on the ground that his sentence was vacated when
Barnes was sentenced as an habitual offender.
Barnes applied for a supervisory writ, which this Court granted on
June 3, 2020. The matter was remanded to the trial court to consider the
motions as an application for post-conviction relief seeking an out-of-time
appeal in accordance with La. C. Cr. P. art. 930.8 and State v. Counterman,
475 So. 2d 336 (La. 1985). 3
Barnes filed a motion for appeal and designation of record on July 23,
2020. The motion was granted. He argues on appeal that because he was
not convicted by a unanimous jury, his conviction for being a felon in
possession of a firearm should be reversed and the matter remanded for a
new trial. The State counters that Barnes’s argument is meritless because
Ramos does not apply to convictions that have become final and are being
reviewed on post-conviction relief.
DISCUSSION
“An application for post conviction relief shall not be entertained if
the petitioner may appeal the conviction and sentence which he seeks to
challenge, or if an appeal is pending.” La. C. Cr. P. art. 924.1 The official
revision comment to art. 924.1 states that the post-conviction relief
procedure is not designed to take the place of an appeal, and that the
petitioner must first exhaust whatever appeal rights that he has. La. C. Cr. P.
art. 930.8 states that applications for post-conviction relief, including
requests for out-of-time appeals, must be filed within two years from the
date that a defendant’s conviction and sentence become final unless certain
specific exceptions apply.
The United States Supreme Court rendered its decision in Ramos on
April 20, 2020. It held that the Sixth Amendment right to a jury trial, as
incorporated by the 14th Amendment, requires a unanimous verdict to
convict a defendant of a serious offense in both federal and state courts. In
State v. Richardson, 20-00175 (La. 6/3/20), 296 So. 3d 1050, the Louisiana
Supreme Court determined that the holding of Ramos applies to cases
pending on direct review when Ramos was decided. Thus, the State will
have to retry defendants who were convicted of serious offenses by non-4
unanimous juries and whose cases were still pending on direct appeal when
Ramos was decided.
It is unclear from his appeal motions whether Barnes sought to appeal
the underlying conviction or his habitual offender adjudication and sentence.
Nevertheless, we are mindful that habitual offender proceedings do not
charge a separate crime but are a part of the original proceeding leading to
conviction. See State v. Means, 09-1716 (La. 4/9/10), 32 So. 3d 805.
Additionally, it is clear from the brief of his appeal counsel that Barnes is
appealing his underlying conviction.
Barnes was sentenced as an habitual offender on February 21, 2018.
He filed his first motion for an out-of-time appeal within two years of when
his conviction became final. Therefore, his case is on direct review and
Ramos applies. The jury was not unanimous in finding Barnes guilty of the serious
offense of possession of a firearm by a convicted felon. A verdict of 10-2
was revealed when the jury was polled. This error is patent on the face of
the record.1
Outcome: Accordingly, in light of the ruling in Ramos and the fact that
this matter is on direct appeal, we vacate Barnes’s conviction of possession
of a firearm by a convicted felon. Because the underlying conviction is
vacated, we further vacate his habitual offender adjudication and sentence.
This matter is remanded for a new trial on the underlying offense.
Plaintiff's Experts:
Defendant's Experts:
Comments: