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State v. Moffett

Court of Appeals of Louisiana, Fourth Circuit

June 13, 2018

STATE OF LOUISIANA
v.
WILL MOFFETT

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 528-770, SECTION "A" Honorable Laurie A. White, Judge

          Leon Cannizzaro District Attorney Donna Andrieu Assistant District Attorney, Chief of Appeals William R. Dieters Assistant District Attorney Parish of Orleans COUNSEL FOR PLAINTIFF

          Mary Constance Hanes LOUISIANA APPELLATE PROJECT Will J. Moffett, Jr. COUNSEL FOR DEFENDANT/APPELLANT

          (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Edwin A. Lombard, )

          EDWIN A. LOMBARD, JUDGE.

         The defendant, Will J. Moffett, appeals his conviction for attempted manslaughter. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant's conviction and sentence.

         Relevant Facts and Procedural History

         On the evening of February 13, 2016, as he stood talking with Ms. Lorraine Moffett in front of her residence in the 800 block of Austerlitz Street, Chuck Slan was shot seven times. On April 14, 2016, the defendant (Ms. Moffett's son) was charged by bill of information with the attempted second degree murder of Mr. Slan. He pleaded not guilty and, after a two day trial, the defendant was found guilty of attempted manslaughter on January 10, 2017, by an eleven-to-one jury verdict.

         On January 31, 2017, the defendant filed motions for a new trial, post-verdict judgment of acquittal and appeal. After a brief hearing on March 10, 2017, the trial judge denied the motion for new trial and noted the defense objection to the ruling. The trial judge then announced that, prior to entertaining the defendant's motion for appeal, she would impose sentence. Defense counsel stated that she wished to make a brief argument before sentencing and read into the record a mitigation letter written by a staff social worker in the Orleans Public Defender's Office. The trial judge responded by saying, "My understanding is the sentence is zero to twenty years. Everybody agree?" The assistant district attorney and defense counsel answered affirmatively and the trial judge imposed a ten-year sentence.

         The defendant's motion for appeal was granted and this appeal was timely filed.

         Error Patent Review

         La. Code Crim. Proc. art. 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

         This court has held that the twenty-four-hour delay set by La. Code Crim. Proc. art. 873 may be implicitly waived, State v. Santos-Castro, 2012-0568, p. 17 (La.App. 4 Cir. 7/31/13), 120 So.3d 933, 943-944; State v. Stovall, 2007-0343, p. 12 (La.App. 4 Cir. 2/6/08), 977 So.2d 1074, 1082; State v. Robichaux, 2000-1234, p. 7 (La.App. 4 Cir. 3/14/01), 788 So.2d 458, 464, and where the defendant does not complain of his sentence on appeal, the failure to observe the twenty-four-hour delay mandated by Article 873 is harmless. State v. Celestain, 2013-1262, pp. 11-13 (La.App. 4 Cir. 7/30/14), 146 So.3d 874, 881-882 (citations omitted). However, in State v. Kisack, 2016-0797(La. 10/18/17), 236 So.3d 1201, the Louisiana Supreme Court found that this court erred in surmising that defense counsel's participation in the sentencing hearing was enough to constitute and implicit waiver of the Article 873 mandated delay, concluding that an implicit waiver "runs afoul of the plain language" of Article 873 express waiver requirement. Rather, under the circumstances presented in Kisack, the Louisiana Supreme Court found "it is difficult to conclude the error is harmless" when the defendant "faced a sentencing range of 20 years to life and received the maximum sentence authorized for a ...


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