FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 528-770,
SECTION "A" Honorable Laurie A. White, Judge
Cannizzaro District Attorney Donna Andrieu Assistant District
Attorney, Chief of Appeals William R. Dieters Assistant
District Attorney Parish of Orleans COUNSEL FOR PLAINTIFF
Constance Hanes LOUISIANA APPELLATE PROJECT Will J. Moffett,
Jr. COUNSEL FOR DEFENDANT/APPELLANT
composed of Chief Judge James F. McKay, III, Judge Terri F.
Love, Judge Edwin A. Lombard, )
A. LOMBARD, JUDGE.
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.
Facts and Procedural History
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
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.
defendant's motion for appeal was granted and this appeal
was timely filed.
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.
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