APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 509-193, SECTION " C" . Honorable Benedict J. Willard, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE/ STATE OF LOUISIANA.
Mary Constance Hanes, LOUISIANA APPELLATE PROJECT, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.
(Court composed of Judge Terri F. Love, Judge Paul A. Bonin, Judge Daniel L. Dysart).
[2014-0362 La.App. 4 Cir. 2]
Terri F. Love, Judge.
Nicholas Miorana (" Mr. Miorana" ) appeals his conviction for attempted unauthorized entry of an inhabited dwelling in violation of La. R.S. 14:27 and La. R.S. 14:62.3. He assigns as error that the record does not reflect that he made a knowing and intelligent waiver of his right to a jury trial; that the trial court erred in adjudicating him a fourth-felony offender; that the trial court failed to rule on his motion to reconsider sentence; and, that his twenty year sentence as a fourth-felony offender is unconstitutionally excessive. This court finds that because the trial court failed to rule on Mr. Miorana's motion to reconsider sentence and the record fails to sufficiently demonstrate that he knowingly and intelligently waived his right to a trial by jury, we remand the matter to the trial court for further proceedings in conjunction with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts of Mr. Miorana's conviction are not relevant to the issues addressed in this opinion.
Mr. Miorana was charged by bill of information in October 2011, with home invasion, a violation of La. R.S. 14:62.8. At his arraignment, the trial court informed Mr. Miorana of his right to trial by judge or jury, and he pled not guilty.
[2014-0362 La.App. 4 Cir. 3] In May 2012, defense counsel waived Mr. Miorana's presence for the purposes of filing in open court a written request for a bench trial. In December 2012, Mr. Miorana's case went to a bench trial wherein he was found guilty of attempted unauthorized entry of an inhabited dwelling. Thereafter, the trial court sentenced him to three years at hard labor, and the State filed a multiple bill on the same day. In February 2013, the trial court adjudicated Mr. Miorana a fourthfelony offender, whereupon it vacated the original sentence and resentenced him to twenty years at hard labor. Mr. Miorana filed a motion to reconsider sentence in March 2013 and later filed a motion for an out-of-time appeal in December 2013, which the trial court granted.
RIGHT TO TRIAL BY JURY
Mr. Miorana claims the record does not show that he made a ...