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State ex rel. Nicholson v. State

Supreme Court of Louisiana

May 5, 2015

STATE EX REL. HERBERT NICHOLSON
v.
STATE OF LOUISIANA

ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS.

For Applicant: Robert Edward Lancaster, J. Benjamin Aguinaga, Student Practitioner, LOUISIANA STATE UNIVERSITY LAW CLINIC.

For Respondent: Hon. Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, Andrew Pickett, Assistant District Attorney, ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE.

CRICHTON, J., additionally concurs and assigns reasons.

OPINION

Page 345

[2013-0072 La. 1] PER CURIAM

For reasons that follow, relator's convictions and sentences for sexual battery, aggravated oral sexual battery, and attempted aggravated rape are vacated, as is the portion of the sentence for aggravated rape requiring that he undergo medroxyprogesterone acetate treatment. Relator's convictions for aggravated rape and aggravated kidnapping and corresponding life sentences without benefit of parole, probation or suspension of sentence remain undisturbed.

Relator's convictions stem from unrelated attacks on two different women in the 1990s: a 1991 attack on a victim identified

Page 346

as K.T.; and a 1994 attack on a victim identified as A.R. In both cases, the investigations went cold. More than a decade later, Orleans Parish law enforcement authorities began DNA testing of its voluminous stored evidence in an effort to resolve cold cases, and a Combined DNA Index System (" CODIS" ) search identified relator as a match for biological evidence collected in both attacks.

In 2008, the state charged relator with aggravated rape while armed with a dangerous weapon and aggravated kidnapping for the 1991 attack on K.T., and with attempted aggravated rape while armed with a dangerous weapon, aggravated oral [2013-0072 La. 2] sexual battery while armed with a dangerous weapon, sexual battery, and aggravated kidnapping for the 1994 attack on A.R. The court denied relator's motion to quash the indictment based on prescription and the cases proceeded to trial.

In 2010, an Orleans Parish jury convicted relator of aggravated rape and aggravated kidnapping for the 1991 attack on K.T., and convicted him of aggravated kidnapping, attempted aggravated rape, aggravated oral sexual battery, and sexual battery for the 1994 attack on A.R.. The district court sentenced him to three terms of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, 50 years imprisonment at hard labor, 20 years imprisonment at hard labor, and 10 years imprisonment at hard labor, all to be served consecutively to one another. The district court also sentenced relator to undergo the administration of medroxyprogesterone acetate (" chemical castration" ) pursuant to R.S. 14:43.6 and R.S. 15:538.

Relator appealed his convictions and sentences, and additionally filed a separate writ application seeking review of the chemical castration order. In an opinion consolidating relator's appeal and writ application, the Fourth Circuit affirmed relator's convictions and sentences and denied his application for review of the district court's judgment ordering relator to undergo chemical castration. State v. Nicholson, 11-0883; 11-0681(La.App. 4 Cir. 10/5/12), 103 So.3d 746.

After the delay period for filing an application for writs in this Court expired and his conviction became final, see La.C.Cr.P. art. 922(B); La.S.Ct.R. X § 5, but before the limitations period set out in La.C.Cr.P. art. 930.8 expired, relator, in a pro se capacity, filed the instant application. Because the issues it raises possess a constitutional basis relating to the prohibited ex post facto application of law, this [2013-0072 ...


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