FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 525-300,
SECTION "H" Honorable Camille Buras, Judge
A. Cannizzaro, Jr. DISTRICT ATTORNEY, ORLEANS PARISH Scott G.
Vincent ASSISTANT DISTRICT ATTORNEY COUNSEL FOR
APPELLEE/STATE OF LOUISIANA.
Constance Hanes LOUISIANA APPELLATE PROJECT COUNSEL FOR
composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina
Jenkins, Judge Paula A. Brown.
Cossich Lobrano Judge.
Jonathan Sims ("Defendant"), appeals his September
16, 2015 convictions for home invasion, a felony in violation
of La. R.S. 14:62.8, domestic abuse battery by strangulation,
a felony in violation of La. R.S. 14:35.3(L), and aggravated
battery, a felony in violation of La. R.S.
14:34. Finding that the evidence is sufficient to
support Defendant's convictions,  that Defendant's right
to confrontation was not violated, and that Defendant's
ineffective assistance of counsel claim is not properly
before the Court, we affirm Defendant's convictions.
Further, finding patent errors as to each of the sentences
imposed, we vacate Defendant's sentences in part and
remand the case to the district court to impose sentences as
instructed by this opinion.
relationship began between Defendant and the victim in 2013.
In early 2014, Defendant moved into the victim's home.
The victim eventually ended that relationship, and told
Defendant to move out and return his key. Defendant vacated
the home, but left behind some personal items and refused to
return the key.
September 14, 2014, the victim asked her uncle to come to her
apartment because she was afraid that Defendant may be
waiting there for her. The victim asked her uncle to search
her residence to ensure Defendant was not present. Finding
nothing, her uncle eventually left. After her uncle left, the
victim put her children to bed. When she exited the
children's bedroom, she heard the closet door open, and
began to run. Defendant emerged from the closet and began
chasing the victim. She attempted to run out of the house,
but Defendant caught her.
began punching the victim in the face. As she fell to the
floor, Defendant climbed on top of her and began to strangle
her. Shortly thereafter, the victim's uncle returned and
knocked on the door. Defendant stopped strangling the victim,
threw a towel at her, and told her to wipe the blood from her
face. They went outside and, as Defendant and the
victim's uncle were speaking, the victim managed to get
inside her home and lock the door.
being locked outside the victim's home, Defendant kicked
the door open. The victim grabbed her child and ran back out
of the door that Defendant had forced open. Defendant dragged
the victim into the backyard and began beating her again
while she was holding her child. Once Defendant had punched
the victim's face, head, and stomach, he picked up an
aluminum broom handle and demanded that the victim let go of
the child. After the victim refused, Defendant began beating
the victim with the broom handle, repeatedly striking her
across the face and the body. The broom handle eventually
broke, but Defendant continued to beat the victim with the
remaining piece. After the broom handle slipped out of his
hand, Defendant strangled the victim in the
Daggs ("Officer Daggs"), an officer with the New
Orleans Police Department ("NOPD"), responded to a
domestic disturbance call at the victim's home shortly
after 11:00 pm. When Officer Daggs arrived, he observed the
victim with bruises on her face, an open wound near her left
eye, and scratches on the knuckles of her right hand. Officer
Daggs further observed a silver broom handle lying in the
street in front of the neighbor's yard and a cracked door
frame in the interior doorway of the victim's home. The
victim gave a brief statement on the scene, but her injuries
required that she be relocated to Tulane Hospital. There, the
victim was treated for a head injury, deep bruise of jaw,
facial laceration, fracture of the hand, contusion to the
eye, and shoulder strain. At the hospital, she gave a written
statement to Officer Daggs.
24, 2015, Defendant was charged by bill of information with
home invasion, a felony in violation of La. R.S. 14:62.8;
aggravated battery, a felony in violation of La. R.S. 14:34;
and domestic abuse battery by strangulation, a felony in
violation of La. R.S. 14:35.3(L). Despite the fact that at
the time of Defendant's act, the home invasion statute
contained an enhancement provision for home invasions where a
child under the age of twelve was present, see La.
R.S. 14:62.8(B)(3)(2017)(repealed 11/1/2017), the bill of
information does not contain any reference to that sentencing
enhancement or allege that a child under twelve was present
at the time of the home invasion. The two-day trial commenced
September 16, 2015, and concluded the following day. The jury
found Defendant guilty of home invasion, aggravated battery,
and domestic abuse battery by strangulation. Defendant filed
a motion for new trial which was denied. On March 15, 2016,
the State filed a multiple bill of information pursuant to La
R.S. 15:529.1, charging Defendant as a quadruple felony
19, 2016, at Defendant's sentencing hearing, counsel for
Defendant filed a motion for post-verdict judgment of
acquittal. The district court denied the motion. Thereafter,
Defendant was sentenced to serve twenty-five years at hard
labor for home invasion; ten years for aggravated battery;
and three years for domestic abuse, all to run concurrently
with each other and any other charge.
25, 2016, the multiple bill hearing was held. At that time,
the district court denied Defendant's motion to quash the
multiple bill, and found Defendant to be a quadruple felony
offender as charged. The district court vacated
Defendant's original sentences, and reimposed the same
sentences that were imposed on July 19, 2016. The district
court then orally granted Defendant's motion for appeal
and appointment of counsel, but advised counsel that he would
have to file a formal notice of appeal. Defendant's
counsel then filed a formal notice of appeal and a motion to
reconsider sentence. The district court granted the motion
for appeal and denied the motion to reconsider sentence. This
appeal timely follows.
Code of Criminal Procedure article 920 directs appellate
courts to consider errors discoverable by an inspection of
the pleadings and proceedings. State v. Thomas,
2012-0177, p. 6 (La.App. 1 Cir. 12/28/12), 112 So.3d 875,
878. In this case, the record reveals that when resentencing
Defendant as a fourth-felony habitual offender on his
conviction for home invasion, the district court failed to
impose the mandatory fine required by La. R.S.
14:62.8(B). Additionally, the record establishes that
although Defendant was found guilty as a fourth-felony
offender on each conviction, the district court failed to
impose the mandatory minimum enhanced sentence for each
offense as required under La. R.S. 15:529.1.
restrictions are contained in a sentence whether or not
verbally imposed by the sentencing court. State v.
Hall, 2002-1098 (La.App. 4 Cir. 3/19/03), 843 So.2d 488.
With respect to the failure to impose a fine, the failure to
impose a mandatory fine requires a remand of the case for the
imposition of the fine. See State v. Jefferson,
2004-1960, p. 40 (La.App. 4 Cir. 12/21/05), 922 So.2d 577;
State v. Brown, 2003-2155, p. 5 (La.App. 4 Cir.
4/14/04), 895 So.2d 542; State v. Lindsey,
2012-1195, p. 9 (La.App. 4 Cir. 11/20/13), 129 So.3d 759,
764-65. Thus, we remand this case and instruct the
district court to impose the fine required by La. R.S.
as stated supra, after being found guilty of the
multiple bill, which alleged Defendant was a fourth-felony
offender on each of his convictions in the case sub
judice, Defendant was resentenced to twenty-five years
at hard labor for home invasion, ten years for aggravated
battery, and three years for domestic battery involving
strangulation. The sentences for aggravated battery and
domestic abuse battery do not comport with La. R.S. 15:529.1,
which requires that a defendant ...