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ON APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 522-458, SECTION " F" . HONORABLE ROBIN D. PITTMAN, JUDGE.
LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY, PARISH OF ORLEANS, KYLE C. DALY, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, New Orleans, Louisiana, Counsel for State of Louisiana.
JILL PASQUARELLA, ORLEANS PUBLIC DEFENDERS, New Orleans, Louisiana, Counsel for Defendant/Relator.
(Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Paul A. Bonin, Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)
JAMES F. MCKAY III, J.
[2015-0122 La.App. 4 Cir. 1] The defendant, Tyrone Brown, seeks supervisory review of the trial court's January 5, 2015 judgment, denying his motion to quash the indictment for improper allotment. For the reasons set forth below, we rescind the stay order previously rendered herein. We deny the writ in part, grant the writ in part, and remand the matter to the Orleans Parish Criminal District Court for further proceedings consistent with the views expressed herein.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
According to the arrest warrant in this matter, on September 19, 2014, the police received a call informing them that a ten-year old girl, R.G., disclosed that her mother's boyfriend, the defendant, touched and penetrated her vaginally on at least two occasions. After being advised of his constitutional rights, the defendant admitted to the abuse, stating that the incidents began approximately two years prior when R.G was eight years old. R.G. turned eight on August 9, 2012.
On November 19, 2014, the Orleans Parish Grand Jury charged the defendant by bill of indictment with six counts based on offenses that allegedly occurred between August 1, 2012, and September 19, 2014: two counts of aggravated rape; two counts of indecent behavior with a juvenile under the age of [2015-0122 La.App. 4 Cir. 2] seventeen with greater than two years difference between the age of the juvenile and that of the defendant; and two counts of sexual battery. On November 20, 2014, the defendant appeared for arraignment and entered a plea of not guilty to the charged offenses.
Based on the August 1, 2012 date (the date set forth in the indictment as the beginning date of the alleged criminal acts), the case was allotted to Section " F" . In the Orleans Parish Criminal District Court, cases are allotted to certain sections based on the date of the alleged offense. Pursuant to the court's allotment calendar, felony cases where the charged offense occurred on August 1, 2012, were allotted to Section " F" .
On January 5, 2015, the defendant filed a motion to quash the indictment for improper allotment, arguing that the State arbitrarily selected the August 1, 2012 date. The defendant claimed that there was no basis in fact for the State's selection of August 1, 2012, for two reasons: (i) R.G. was not yet eight years old on August 1, 2012; and (ii) August 1, 2012 was well over two years prior to the defendant's September 19, 2014 conversation with law enforcement.
Following oral argument, the trial court, on January 5, 2015, denied the motion to quash the indictment, finding that the defendant failed to show that the case was improperly allotted. The trial court also denied the defendant's request to stay the proceedings.
On February 4, 2015, the defendant filed a writ application with this Court, arguing that the trial court erred in denying his motion to quash the indictment and erred in denying the motion without first holding an evidentiary hearing. The defendant also requested that this Court issue a stay order, which we granted on [2015-0122 La.App. 4 Cir. 3] April 22, 2015. On May 4, 2015, this Court ordered that this case be presented for oral argument to the Court En Banc on May 26, 2015.
STANDARD OF REVIEW
Rulings on motions to quash that do not require factual determinations and present only questions of law, as in the case sub judice, are reviewed de novo. See State v. Hall, 2013-0453, p. 11 (La.App. 4 Cir. 10/9/13), 127 So.3d 30, 39. Trial court rulings on motions to quash which involve determinations of mixed questions of law and fact are reviewed under an abuse-of-discretion standard. See State v. Brown, 2014-0680, p.1 (La.App. 4 Cir. 2/4/15), 161 So.3d 99, 100. Here, the trial court's ruling on the motion to quash was based on a legal finding and is, therefore, subject to this Court's de novo review.
LAW AND ANALYSIS
In this writ application, the defendant raises two issues for ...