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State v. Toledano

Court of Appeals of Louisiana, Fourth Circuit

January 23, 2019

STATE OF LOUISIANA
v.
ARTHUR TOLEDANO

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 519-546, SECTION "D" Honorable Dennis J. Waldron, Judge

          LEON A. CANNIZZARO, JR. DISTRICT ATTORNEY, ORLEANS PARISH SCOTT G. VINCENT ASSISTANT DISTRICT ATTORNEY COUNSEL FOR STATE/ APPELLEE

          KEVIN BOSHEA COUNSEL FOR DEFENDANT/ APPELLANT

          (Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods)

          JAMES F. MCKAY III CHIEF JUDGE.

         STATEMENT OF CASE

         On March 18, 2014, Arthur Toledano ("defendant") was charged by bill of information with one count of manslaughter (Count 1) and one count of attempted manslaughter (Count 2). The State amended Count 2 of the bill of information from attempted manslaughter to hit and run driving involving death or serious bodily injury. The charges stemmed from a February 3, 2014 hit and run accident during which the defendant struck siblings, six-year-old Shaud Wilson and nine-year-old Shanaya Wilson, with the vehicle he was driving. Shaud did not survive.

         The defendant was arraigned on March 21, 2014, and entered a plea of not guilty. The docket master reflects that the defendant was advised at the time of arraignment that he had a right to trial by judge or jury. A preliminary examination was conducted on November 6, 2014. Judge Marullo informed the defendant in open court once again that he had a right to trial by judge or jury. After consulting with the defendant, defense counsel orally informed Judge Marullo that the defendant wished to waive his right to trial by jury and receive a judge trial; however, no waiver was executed in writing as required by La. C.Cr.P. art. 780(B). Trial was scheduled for January 30, 2015. On January 30, 2015, the defendant appeared for trial. Judge Marullo granted the defendant's motion for continuance and rescheduled the trial for Monday, February 23, 2015.

         On February 20, 2015, the Honorable Dennis Waldron was appointed judge pro tempore to replace Judge Marullo. The defendant and his trial counsel, Mr. Panagoulopoulos, appeared for trial the following Monday, February 23, 2015. Defense counsel requested a continuance since he was expecting to present his case to Judge Marullo. Defense counsel stated he wanted additional time to adjust his witness list since the case would now be presented to Judge Waldron. Judge Waldron denied the motion to continue; however, the judge agreed to recess the matter after the State's presentation of its case to allow the defense additional time to prepare. Following opening statements, the State presented its case-in-chief, during which Shayana, her pre-teen brother, mother and uncle, all of whom were present when the accident occured, testified. After the State presented its case, the trial was recessed until Friday, February 27, 2015.

         On February 27, 2015, the defense presented its case, and the State presented a rebuttal. Following closing argument, Judge Waldron found the defendant guilty as charged of manslaughter for the killing of Shaud Wilson (Count 1), and guilty of the lesser included offense of hit and run driving without serious death or bodily injury as to Shanaya (Count 2). Sentencing was scheduled for March 4, 2015.

         Prior to sentencing, on March 4, 2015, defense counsel filed the defendant's first motion for a new trial arguing that Judge Waldron abused his discretion in denying his motion to continue the trial. Judge Waldron denied the motion for new trial, and stated:

[S]ince I arrived a week ago Monday on the 23rd of February, I have been met by three situations in three separate cases. One of which as recently as this morning, where persons prior to my coming waived trial by Jury. In two, not three, but in two of those three cases the defendant asked specifically to withdraw that plea. I say "plea", but that request - that election - that choice. And, because it did not comport with the somewhat recent amendment, I think the Code provision was last amended in 2013, if memory serves me correct, but in light of the fact that there was not compliance with Article 780 in terms of it being in writing, I found that it was permissible to allow both persons to elect trial by Jury.
Here, the defense did not do that.
And, I am not here to default [sic] the Defense Counsel....
But, there was no request to withdraw the election of the waiver of the jury here, only to continue it to see who would be the Judge and allow the trial then to go with waiver of jury before whoever the Judge is to be in thirty days. And, the reason I denied it is because I don't think the law allows that.

         The State and the defendant provided testimony from witnesses at the sentencing hearing. At the conclusion of the testimony provided by the witnesses, the trial court imposed a sentence of twelve years without benefit ...


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