State Of Louisiana VS Derrick Odoms
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 KA 2092 STATE OF LOUISIANA VERSUS DERRICK ODOMS Judgment Rendered June 8 2012 Appealed from the Seventeenth Judicial District Court In and for the Parish of Lafourche State of Louisiana Trial Court Number 448361 Honorable John E LeBlanc Judge Presiding James D Caldwell Counsel for Appellant Camille A Morvant LI State of Louisiana Stephen E Caillouet Thibodaux LA Lynden J Burton Counsel for DefendantAppellee New Iberia LA Derrick Odoms BEFORE WHIPPLE KUHN AND GUIDRY JJ W HIPPLE J This matter is before us on appeal by the State of Louisiana For the following reasons we reverse the ruling of the trial judge on the motion to quash affirm the conviction vacate the sentence and remand for resentencing FACTS AND PROCEDURAL HISTORY On September 26 2007 the defendant Derrick Odomes was charged by grand jury indictment with first degree murder a violation of LSAR 14 for S 30 the murder of Hunter Horgan III on or about August 12 or 13 1 992 The defendant entered a plea of not guilty The State subsequently amended the charge to second degree rnurder a violation of LSAR 14 On January 20 2010 S 30 1 the defendant tiled a motion to quash the indictment arguing that the charges should be quashed due to the fact that the possible range of sentence is zero years because the defendant was 14 years old at the time of the alleged murder and was over twenty one years old at the time the indictment was filed After a hearing the trial judge granted the defendant smotion to quash to the extent that the trial court ordered that the maximum penalty to which the defendant was subject upon conviction was incarceration until his twenty first birthday thereby allowing the State to prove its case against the defendant but in effect negating punishment as the defendant had already surpassed the age oftwenty one at the tirne of the ruling The State subsequently filed an application for writ of review of the trial s court ruling with this court which we denied noting as follows As the We note that the defense brief in this case refers to defendant as Derrick Odomes the grand jury indictment names the defendant as Derrick Odoms and the rest of the record contains both spellings The spelling of defendant last narnc we have used herein as Odomes s is consistent with the defendant ssignature on the warning and waiverof rights form of the Thibodaux Police Department z The indictment was filed on September 26 2007 Previously on October 11 2007 the defendant filed a motion to quash the indictment on the grounds of jurisdiction which was denied by the trial court The subject of the instant appeal is the trial court partial grant of the s subsequent motion to quash filed by the defendant on January 20 2010 2 defendant has not been convicted the extent of his sentencing exposure is not properly before this court If the defendant is convicted and sentenced the issue will be ripe for review State v Odome 2010 KW 0812 La App 1st Cir 10 7 1 8 unpublished On August 25 2011 after a trial by jury the defendant was found guilty as charged The trial court subsequently sentenced the defendant to incarceration until his twentyfirst birthday candidly recognizing that said sentence would have no practical effect since the defendant was already over twenty one years old at the time of imposition The State now appeals arguing that the trial judge erred in ruling that the maximum penalty upon conviction was incarceration until the age of twenty one instead of the statutory penalty of life imprisonment at hard labor without the benefit of probation parole or suspension of sentence DISCUSSION Based on the defendant purported date of birth February 26 1978 he was s fourteen years old at the time he committed the offense At the time the grand jury indictment was tiled on September 26 2007 the defendant was twenty nine years old As noted above after a trial by jury the defendant was convicted and sentenced on the charge of second degree murder for the particularly brutal killing of Hunter Horgan III an Episcopal priest Morcover 3the record consistently indicates this date as his date of birth In its brief on appeal the State does not rely on an exact date of birth but instead treats the above date as an approximation however although not wider oath at the tinge the defendant stated at sentencing that his date of birth is February 26 1978 The facts of the offense in this heinous and tragic case are not at issue for purposes of this appeal and will not be further detailed herein 3 ASSIGNMENT OF ERROR In the sole assignment of error the State argues that the trial court erred in its ruling on the defendant smotion to quash and sentencing because the special jurisdiction of the juvenile court existed only until the defendant turned twenty one years old Noting that the penalty for second degree murder is life imprisonment the State argues that when the defendant turned twenty one years old that special consideration ended and the defendant like any other defendant in his situation was sulaject to district court jurisdiction The State alternatively argues that the court has adequate tools and remedies to fashion an appropriate disposition including a sentence that would comport with the constitutional prohibition against cruel excessive or unusual punishment The State also argues that there is no ex fucto post prohibition against the application of LSAC art 876 added by P Cr 13 2008 La Acts No 670 2 which provides for a penalty equal to the amount of time to which an individual like the defendant could have been sentenced had he been adjudicated for the offense as a child at the time the offense was committed The State notes that since the defendant was fourteen years old at the time of the offense this provision if applied would set the maximum sentence at roughly seven years as the defendant was roughly seven years from attaining the age of twentyone when he committed the offense The State also notes that the defendant was still subject to the jurisdiction of the juvenile court in 1994 Relying on State v Fa 950570 La App 1st Cir rris 95 16 11 666 So 2d 337 the State submits that LC art 857 should be SACh applied retroactively to allow the proper vesting ofjurisdiction in the district court In that regard the State contends that the defendant was sixteen years old when LSA Ch art 857 went into effect and the defendant could have been C 6 transferred to district court and prosecuted as an adult for the 1992 murder with a penalty of incarceration up to his thirtyfirst birthday M The State notes that since the defendant was fourteen years old at the time of the offense if this provision were applied the maximum sentence to which defendant could be subjected would be set at roughly seventeen years as the defendant was roughly seventeen years from attaining the age of thirtyone when he committed the offense Citing State v Mavis 2003 2490 La 4 874 So 2d 153 per curiam and LSA Ch 04 30 C art 804 the State argues the defendant could have been indicted in district court 1 as an adult after he attained the age of twentyone without the need for a transfer proceeding In response the defendant argues that the trial court imposed the correct sentence The defendant contends that based on the law that was in effect at the time of the offense his range of sentence could only be until he reaches the age of twenty one The defendant argues that the ex post facto application of any statute enacted after the date of the offense as sought by the State would subject him to increased penalties in violation of the U Const art I S 10 and La Const art 1 23 In ruling on the motion to quash the trial court noted that based on the law in effect at the time of the offense the possible sentence for the defendant was commitment until his twenty first birthday The court noted that there had been several subsequent statutory amendments and enactments but found that the application of these amendments to the defendant would constitute a prohibited ex post facto application of the law The court concluded the defendant spenalty exposure was confinement until the age of twenty one However the trial court also stated that it was not ruling that the sentencing possibility was zero or that the State was not entitled to prosecute the defendant When a trial court rules on a motion to quash factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial s court discretion See State v O 20022698 La App 1 st Cir 6 861 03 27 5 So 2d 187 191 writ denied 20032142 La 10 855 03 17 So 2d 765 However a trial court legal findings are subject to a de novo standard of review s See Sta v Smith 990606 99 2015 99201 99 2094 La 7 766 So 2d 9 001 6 501 504 A defendant is to be tried and sentenced under the statute that was in effect at the time lie committed the crime State v Bethle 452 So 2d 367 370 La App 1 st Cir 1984 Ex post facto laws are prohibited by not only the Louisiana Constitution but also the United States Constitution U Const art 1 S La Const art 1 23 9 10 This prohibition extends to the enforcement of any enactment which changes the punishment to inflict a greater penalty for the crime than that which was authorized at the time it was committed Thus legislation which amends a criminal statute to increase the possible maximum penalty for violating the statute cannot be applied to someone convicted of committing a crime prior to the enactment of the legislation See State v R 423 So 2d 1053 obinson 1063 La 1982 Although the language of the federal constitution does not define the term ex facto post the case of Cald v Bull 3 U 3 Dail 386 390 1 L Ed 648 S 1798 interpreted that term and its holding has been applied ever since The der Cal court outlined four categories of ex post facto laws 1 a law making criminal and subject to punishment an activity that was innocent when originally done 2 a law aggravating a crime or making it a greater crime than it was when originally committed 3 a law aggravating a crime punishment and 4 a law s altering the rules of evidence to require less or different testimony than was required at the time of the commission of the crime so as to make easier the conviction of the offender Ca 3 U at 390 State ex rel Olivieri v State S 2000 0172 La 2 779 So 2d 735 742 cert denied 533 U 936 121 S 01 21 S Ct 2566 150 L Ed 2d 730 2001 and 534 U 892 122 S Ct 208 151 L Ed S 6 2d 148 2001 In Oliv the Louisiana Supreme Court held that in determining whether there has been an ex post facto violation the analysis should focus on whether the new law redefines criminal conduct or increases the penalty by which the conduct is punished and not whether the defendant has simply been disadvantaged Olivieri 779 So 2d at 744 At the time the crime at issue was committed LSA Ch art 898 C 5 C provided that the maximum disposition for a child adjudicated a delinquent for a C felony was until the child reached the age of twenty one However LSACh art 857 at that time provided that a child fifteen years of age or older could be transferred to an adult court and subject to an adult trial Nonetheless as noted above the defendant was only fourteen years old when he committed the instant offense In 1994 i after the offense LSACh art 857 was amended to e C provide that fourteen yearolds could be transferred to adult court and to increase the penalty for a child convicted of certain crimes including murder to incarceration until the age of thirtyone Also because the defendant was over the age of twentyone when arrested he was no longer a child for purposes of delinquency proceedings conducted in a court exercising original juvenile jurisdiction See LSACh C art l 804 Child means any person under the age of twenty one including an emancipated minor who commits a delinquent act before attaining seventeen years of age Nonetheless the initiation of criminal prosecution in the district court shall not prejudice the defendant by exposing him to greatly enlarged penalties than otherwise would have been applicable if this case had been initiated as a juvenile delinquency proceeding See Havis 874 So 2d at 156 Since the defendant committed the offense when he was fourteen years old he was subject to secure confinement until his twenty first birthday a period of seven years LSACh C art 898 the previously noted law in effect at the time of the offense Thus 5 C 7 we are constrained to find that the State initial argument that the defendant s should be subject to life imprisonment at hard labor without the benefit of probation parole or suspension of sentence upon a conviction for a second degree murder offense committed at the age of fourteen is not persuasive and is without authority Further we must reject the State argument to apply to the instant case the s 1994 amendment to LSACh art 857 adding subsection B which increased C the sentencing exposure of a fourteen yearold to his thirtyfirst birthday Instead we are constrained to find that such an application would constitute an ex post facto violation since it would increase the defendant soriginal sentencing exposure by ten years However we find merit to the State argument in favor of the application s of 2008 La Acts No 670 1 This legislative act amended LSA Ch art 857 C by adding subsection C as follows 2 An adult who is charged with an offense committed at the time he was a child for which the time limitation for the institution of prosecution pursuant to Code of Criminal Procedure Art 571 has not lapsed and for which he was not subject to prosecution as an adult due to his age at the time the offense was committed may be prosecuted as an adult in the appropriate court exercising criminal jurisdiction If convicted he shall be committed to the custody of the Department of Public Safety and Corrections to be confined in secure placement for a period of time as determined by the court not to exceed the maximum amount of confinement he could have been ordered to serve had he been adjudicated the offense as a child at the time the offense was for committee Emphasis added Likewise 2008 La Acts No 670 2 amended LSA C art 876 by P Cr adding subsection B An adult who is charged with an offense committed at the time he was a child for which the time limitation for the institution of prosecution pursuant to Code of Criminal Procedure Article 57 has not lapsed 1 and for which he was not subject to prosecution as an adult due to his age at the time the offense was committed may be prosecuted as an adult in the appropriate court exercising criminal jurisdiction If convicted he may be committed to the custody of the Department of Public Safety and Corrections to be confined in secure placement for 8 a period qf time as determined by the court not to exceed the maximum amount of confinement he could have been ordered to serve had he been adjudicated for the offense as a child at the tune the offense was committed Emphasis added As stated above the maximum amount of confinement the defendant could have been ordered to serve had he been adjudicated for the instant offense as a child at the time the offense was committed was seven years The above enactments of 2008 La Acts No 670 do not redefine criminal conduct or increase the penalty by which it is punished They simply allow the courts to impose the term of incarceration that could have been imposed at the time of the offense had the defendant not avoided prosecution at that time Thus the prohibition against ex post fiicto laws would not prohibit the application of LSA Ch art C 2 0 857 and LSA C art 876 to the present case Accordingly the trial P Cr 13 court erred in ruling that the application of these provisions would constitute a violation of the ex post facto laws Thus we find merit to this portion of the s State assignment of error DECREE For the above and foregoing reasons we reverse that portion of the trial s court March 11 2010 ruling which granted in part the defendant smotion to quash affirm the conviction vacate the sentence and remand for resentencing RULING QUASH GRANTING REVERSED IN S PART DEFENDANT MOTION CONVICTION AFFIRMED TO SENTENCE VACATED AND REMANDED FOR RESENTENCING 5 Both statutes were amended main by 2010 La Acts No 805 adults shall be prosecuted as adults 9 1 to provide that such
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