text:
    STATE of Louisiana, Appellee v. Troy Donell GAINES, Appellant
    No. 51,985-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018
    LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, Counsel for Appellant
    ROBERT S. TEW, District Attorney, Monroe, Counsel for Appellee
    SHIRLEY M. WILSON-DAVIS, Assistant District Attorney
    Before BROWN, PITMAN, and GARRETT, JJ.
   BROWN, C.J.

Defendant, Troy Donell Gaines, was convicted of manslaughter and sentenced to 40 years at hard labor. Defendant now appeals, arguing that his sentence is excessive. We affirm defendant's conviction and sentence.

FACTS

On December 6, 2011, Chandrikia "Drika" Green was found shot to death in the closet of the apartment she shared with her boyfriend, Troy Gaines. Drika, who was 21 years old, and defendant, who was 29 years old, had dated for around six years, had two children together, and lived in the Glenwood Townhomes in West Monroe, Louisiana. However, Drika and defendant had been having problems, and several weeks before her death, Drika had begun staying with her sister, Chandra Green, in the Westbrook Apartments, also in West Monroe.

Defendant suspected that Drika was cheating on him and that she wanted to leave him. Before her death, Drika had told several people that she was scared of defendant, who had destroyed their furniture by cutting holes in the couch and chair and breaking the mirror on the dresser. On December 5, 2011, Drika had gone to the apartment manager and inquired about changing the locks on the door. Because defendant was also on the lease, the manager called him to see if he would remove himself from the lease in order for Drika to have the locks changed, but he refused. According to the manager, Drika was visibly upset upon learning she couldn't have the locks changed.

On the evening of December 5, 2011, Drika and Chandra and their kids went to Drika's apartment for the kids to get a haircut. They then went back to Chandra's apartment. After Drika fed the kids and got them ready for bed, she drove Chandra's car back to her own apartment to get ready for work around 9:00 to 10:00 p.m. Drika had been working at Glenwood Hospital in the housekeeping department for about six months on the graveyard shift, which was 11:00 p.m. to 7:00 a.m. However, Drika never made it to work that night.

Defendant arrived in Tallulah, Louisiana, at the house of his uncle, Ernest Robinson, Sr., around 3:00 to 4:00 a.m. on December 6, 2011. Defendant was crying and "just wasn't himself." He had a gun and told his uncle that Drika was dead, but that "he couldn't catch the other guy." Robinson could not make sense of what his nephew was telling him, but he told defendant to put the gun down on a barstool, and he called defendant's father, Troy Donell Gaines, Sr., to let him know what was going on. Robinson then told defendant that he was calling the police, and defendant left. Robinson put the gun in a bag, called 911, told them his nephew was there with a gun saying that his "friend girl" was dead, and turned the gun over to the police when they got to his house.

Around 4:00 a.m., defendant called his sister, Kamonica Buckley, and told her to take care of his kids. When Kamonica asked defendant what he meant, defendant's response was that he told Drika if he caught her cheating, he would kill her. Kamonica, who also lived in Glenwood Townhomes with her husband Keyatta and their children, went to get Pam Brown, the apartment manager, to let her into defendant's apartment to check on Drika and the kids. When they went inside, Keyatta told her to stay downstairs but he was unable to see anything when he went upstairs to look because it was dark. The Buckleys and Ms. Brown left the building and walked outside; that's when the police and Gaines, Sr., arrived on the scene.

Gaines, Sr. had called the police earlier and told them that his son had shot his girlfriend in their apartment. The police initially searched the apartment, but could not find Drika. When the police asked Gaines, Sr., (who according to one witness was on the phone with defendant at the time) where Drika was, he told them to look in the closet. After officers moved two large dressers that were barricaded in front of the closet doors, Drika was found dead, slumped over in the corner of the closet. Drika had two gunshot wounds, one to the head and one to the chest. Ms. Buckley and her husband Keyatta went over to Chandra's house to tell her that Drika was dead. Defendant was arrested later that day in Tallulah.

Firearms testing confirmed that the bullets recovered from Drika's body were fired from the gun that defendant left at his uncle's house. The investigation revealed no evidence supporting defendant's statement to his uncle about another man in the apartment with Drika. Although Alonzo Green, a co-worker of the victim, admitted that he had been in a sexual relationship with Drika for approximately two months, he had not been at her apartment on the night of the shooting.

Defendant was charged by bill of indictment with second degree murder. Following a trial, on March 27, 2017, the jury found defendant guilty of the responsive verdict of manslaughter. On May 15, 2017, the sentencing hearing was held. Finding that the evidence presented at trial was sufficient to convict defendant of second degree murder rather than the lesser offense of manslaughter, the trial court imposed the maximum sentence of 40 years at hard labor.

Defendant filed a motion to reconsider sentence, arguing that the trial court failed to adequately consider the fact that he had acted under strong provocation, as shown by evidence that the victim was cheating on defendant, as a mitigating factor in sentencing. The trial court denied the motion without providing reasons. This appeal followed.

DISCUSSION

Defense counsel contends that defendant's 40-year sentence is excessive, and that the trial court failed to consider any mitigating factors. Noting that the evidence suggested that the victim had sexual relations with at least one other person during her relationship with defendant, and that there were no facts presented which indicated exactly what happened before the victim was shot, defense counsel claims that there was sufficient evidence for the jury to believe that this incident was manslaughter, not murder. Defendant argues that although he was only convicted of manslaughter, the trial court's imposition of the maximum sentence for that offense was based on its belief that defendant should have been found guilty of second degree murder. Defendant points out that at the sentencing hearing, the trial court did not mention any factors contained in the pre-sentence investigation (PSI) report, such as defendant's social history, work experience, education, to what extent this sentence would entail a hardship upon defendant and his family, or any other information mitigating in defendant's favor.

An appellate court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos , 419 So.2d 475 (La. 1982) ; State v. DeBerry , 50,501 (La. App. 2 Cir. 04/13/16), 194 So.3d 657, writ denied , 16-0959 (La. 05/01/17), 219 So.3d 332.

Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Bonanno , 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 01-0467 (La. 01/15/02), 805 So.2d 166 ; State v. DeBerry , supra .

The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Allen , 49,642 (La. App. 2 Cir. 02/26/15), 162 So.3d 519, writ denied , 15-0608 (La. 01/25/16), 184 So.3d 1289. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Allen , supra . On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson , 48,534 (La. App. 2 Cir. 01/15/14), 130 So.3d 993.

As a general rule, maximum or near-maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto , 07-2031 (La. 02/15/08), 974 So.2d 665 ; State v. Hogan , 47,993 (La. App. 2 Cir. 04/10/13), 113 So.3d 1195, writ denied , 13-0977 (La. 11/08/13), 125 So.3d 445.

In considering the nature of the offense, both the trial court and the reviewing court may assess whether the crime for which defendant has been convicted adequately describes his conduct when the conviction is for a lesser included responsive offense to the crime charged. State v. Lewis , 09-1404 (La. 10/22/10), 48 So.3d 1073. The fact that the evidence might have supported a verdict of second degree murder is an appropriate sentencing consideration in a case where the defendant has been convicted of the lesser offense of manslaughter. State v. White , 48,788 (La. App. 2 Cir. 02/26/14), 136 So.3d 280, writ denied , 14-0603 (La. 10/24/14), 151 So.3d 599 ; State v. Ross , 50,231 (La. App. 2 Cir. 11/18/15), 182 So.3d 1035.

The offense of manslaughter is punishable by imprisonment at hard labor for not more than 40 years. La. R.S. 14:31.

The trial court did not abuse its discretion in sentencing defendant to 40 years at hard labor. At the sentencing hearing, the trial court noted its review of the PSI report, defendant's criminal history, and defendant's statement expressing remorse.

The trial court then stated that defendant's sentence was primarily based on the facts presented at trial, including evidence regarding defendant's violent acts against the victim, and the nature of the offense. The trial court stated its belief that the evidence presented was sufficient to convict defendant of second degree murder, as there was no real evidence of provocation, and that defendant benefitted from the jury's decision to find him guilty of the lesser offense of manslaughter.

The PSI report provides additional information about defendant's criminal history and the increasing volatility of his relationship with the victim. At the time of the instant offense, defendant was on probation for a simple burglary conviction. Also, on three occasions in 2011, the police were called to the Glenwood Townhomes in response to domestic disturbances between defendant and the victim. As a result of an incident on November 3, 2011, approximately one month before the murder, defendant was arrested for domestic abuse battery and ordered to have no contact with the victim. The reports include allegations that defendant struck the victim in the face, took her phone to prevent her from calling the police, chased her, destroyed property in their apartment, threatened her with a knife, and held a gun to her head. Further, there is information in the police report that before the shooting, defendant was likely stalking the victim by following her to her sister's house and work and watching her from an abandoned apartment in their complex. The victim's fears of defendant were real, and tragically, she was not able to get away from him before he ended her life.

The reasons stated by the trial court, the record, and the PSI report, taken together, provide a factual basis for the sentence imposed. Defendant shot his girlfriend, the mother of his two young children, in the head and in the chest, barricaded her in the closet, and left her to die. Despite evidence that the victim was having an affair, there was no justification provided for defendant's actions. The trial court properly concluded that defendant's conduct constituted second degree murder, and therefore, justified the imposition of the maximum sentence for manslaughter.

The imposed 40-year maximum sentence is not constitutionally excessive. Considering the heinous facts of this case and the benefit of the reduced sentence derived from the responsive verdict, the maximum sentence imposed by the trial court does not shock the sense of justice, nor is it grossly disproportionate to the severity of the offense. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, defendant's conviction and sentence are affirmed.

      On June 6, 2017, the state filed a habitual offender bill charging defendant as a second-felony offender. The matter was set for a hearing on December 1, 2017, but there is no further information in the record. Any subsequent adjudication and sentence on the habitual offender bill is not before the Court in the current appeal.

      Defendant also has a prior arrest from 1999, when he was 17 years old, for four counts of attempted first degree murder and aggravated arson. Although these charges were ultimately dismissed, defendant admitted to investigators that he set the fire at the house of a man who he thought was "always picking on him."


source: Caselaw Access Project

author: STEPHENS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Jessie JONES, Appellant
    No. 51,941-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018
    LOUISIANA APPELLATE PROJECT, BY: Carey J. Ellis, III, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, Counsel for Appellee
    HOLLY Y. MCGINNESS, TOMMY J. JOHNSON, Assistant District Attorneys
    Before GARRETT, STEPHENS, and MCCALLUM, JJ.
   STEPHENS, J.

This criminal appeal arises from the First Judicial District Court, Caddo Parish, State of Louisiana. The defendant, Jessie Jones, was charged with one count of indecent behavior with a juvenile under the age of 13, in violation of La. R.S. 14:81(A)(1) and (H)(2). After a jury trial, Jones was found guilty as charged and sentenced to ten years at hard labor, with one year to be served without benefit of probation, parole, or suspension of sentence. Jones's motions for new trial, post-verdict judgment of acquittal and reconsideration of sentence were denied. On appeal, Jones challenges his sentence, claiming it is excessive. For the following reasons, Jones's conviction is affirmed and his sentence is vacated and remanded for resentencing.

FACTS

The victim in this case is A.J. Jones's granddaughter, who was nine years old at the time of the offense. Jones was 65 years old at the time of the offense. Jones was charged by amended bill of information with indecent behavior with a juvenile under the age of 13, in violation of La. R.S. 14:81(A)(1) and (H)(2).

Jones's trial commenced, wherein six witnesses testified, all called by the state. The victim's great aunt and Jones's sister, B.B., testified that A.J. often spent nights with her and Jones and went to church with them on Sundays. A.J. would sleep on the couch when she spent the night. On August 16, 2014, A.J. and her brother spent the night with B.B. and Jones, and the children slept on separate couches in the living room. B.B. testified that during the night, A.J. knocked on her bedroom door, woke her, and told her that her "PawPaw" (i.e. , Jones) was trying to touch her. B.B. stated that A.J. was "shook up," and B.B. was concerned. B.B. left the bedroom and asked Jones what happened, to which he only shrugged his shoulders with no verbal reply. A.J. slept with B.B. the rest of the night and went home to her mother the following day after church. B.B. did not tell A.J.'s mother about the incident.

A.J. testified and stated that she was in seventh grade and her birthday is September 23, 2004. She identified B.B. as her "auntie," but stated she calls her "Nana." A.J. recalled that in 2014 she would often go to B.B.'s house to visit on the weekends. She further recalled going to the Gingerbread House in August of 2014 and talking with a lady there and that the conversation was recorded. A.J. confirmed that she had watched the recording of the interview. The interview was played for the jury with no objection. The videotape was admitted into evidence after A.J. verified the authenticity of the recording and identified Jones in court. The defense did not cross-examine A.J.

A.J.'s mother, S.J., testified and corroborated that A.J. often spent the night at B.B's house. According to S.J., when A.J. came home after church on August 17, 2014, she told her that "PawPaw touched my, you know, tee-tee [tu-tu]." S.J. related that A.J. referred to her vagina as her "tu-tu." S.J. was present, but in another room, during the Gingerbread House interview.

Jennifer Flippo, a forensic interviewer for the Gingerbread House, testified regarding her interview with A.J. on August 29, 2014. Flippo recounted her conversation with A.J., stating that A.J. said that she was asleep on the couch at B.B.'s house when she felt something that woke her up, and she swatted at a hand that was touching her. A. J. related to Flippo that when she looked around, Jones was hiding behind the couch. A.J. told Flippo that she was wearing a dress and that Jones had touched her "tu-tu," on and inside her underwear. Since it was clear from A.J.'s reference to her underwear, Flippo did not use the anatomical drawings to have A.J. identify the body part that Jones touched. Flippo's notes taken during the interview with A.J. were admitted into evidence as Exhibit S-2.

Shawna Thomas testified that Jones, whom she identified in court, had dated her mother about 30 years prior, when she was seven to nine years old. Shawna testified that once during that time, while the family was watching a movie, Jones called her into the dark kitchen and made her perform oral sex on him. Shawna further described instances where Jones would have her and her half-sister lie on a pallet on the floor, with Shawna in the middle, and he would rub his penis between her legs. She could not recall how many times this happened but stated that it happened "quite often," when her mother would go to work. Shawna testified that she did not tell anyone initially because Jones told her that he would kill her mother if she did. Eventually, when Shawna was 12 years old, she told her counselor at school but asked her not to tell anyone. Shawna also told her father's girlfriend but asked her not to tell her father because she was afraid that Jones would hurt her father or that her father would kill Jones.

Detective Monique Robinson of the Shreveport Police Department's sex crimes unit testified regarding her investigation of the offense. Detective Robinson corroborated A.J.'s testimony and that A.J.'s mother had reported the incident to the authorities. Detective Robinson arranged the Gingerbread House interview and testified regarding the development of the second victim, Thomas.

After completion of the State's witnesses, the state rested, and the defense did not present evidence. Following deliberation, the jury returned a unanimous verdict of guilty as charged, and the trial court ordered a presentence investigation ("PSI"). Jones was sentenced to ten years at hard labor, with one year to be served without benefit of probation, parole, or suspension of sentence. Jones's motions for new trial, post-verdict judgment of acquittal and reconsideration of sentence were denied. This appeal by Jones ensued.

DISCUSSION

Jones's sole assignment of error challenges his sentence. He contends the sentence of ten years at hard labor imposed by the trial court is harsh and excessive and should be reduced. Specifically, Jones argues that under La. C. Cr. P. art. 894.1, the trial court failed to give sufficient weight to the mitigating factors and failed to adequately consider Jones's social history, work experience, education, or the extent to which this sentence would entail a hardship upon Jones's family. We disagree.

The trial court is given wide discretion in the imposition of sentences within the statutory limits. Such a sentence will not be set aside as excessive absent a manifest abuse of that discretion. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Diaz , 46,750 (La. App. 2 Cir. 12/14/11), 81 So.3d 228. The reviewing court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. DeBerry , 50,501 (La. App. 2 Cir. 4/13/16), 194 So.3d 657, writ denied , 2016-0959 (La. 5/1/17), 219 So.3d 332. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos , 419 So.2d 475 (La. 1982) ; State v. DeBerry, supra . The factors to be considered by the trial court are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Jones , 398 So.2d 1049 (La. 1981) ; State v. DeBerry, supra . There is no requirement that specific matters be given any particular weight at sentencing. State v. DeBerry, supra ; State v. Shumaker , 41,547 (La. App. 2 Cir. 12/13/06), 945 So.2d 277, writ denied , 2007-0144 (La. 9/28/07), 964 So.2d 351.

Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Bonanno , 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166 ; State v. DeBerry, supra .

Whoever commits the crime of indecent behavior with juveniles on a victim under the age of 13 when the offender is 17 years of age or older shall be punished by imprisonment at hard labor for not less than 2, nor more than 25 years. At least two years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. La. R.S. 14:81(H)(2).

Jones's sentence is on the low end of a midrange sentence and is not excessive. First, the record indicates that the trial court adequately considered the sentencing factors set forth in Article 894.1. During the sentencing hearing, the trial court stated that it had taken into consideration the PSI. The trial court further noted that Jones had shown no remorse for his acts or even acknowledged they took place. Additionally, the trial court noted that a lesser sentence would deprecate the seriousness of the crime and pose an undue risk of recidivism. Further still, the trial court noted the young age of the victim. Finally, the trial court stated that it took into consideration the testimony presented at trial. While the trial court could have elaborated on any mitigating factors, the trial court cited review and consideration of the PSI, and the record clearly shows an adequate factual basis for the sentence imposed. Remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, supra .

Further, the sentence is not constitutionally excessive. As the trial court emphasized, Jones abused his position of trust and authority to sexually fondle his nine-year-old granddaughter. Given Jones's lewd conduct and the evidence that he has engaged in such deplorable conduct with at least one other minor child, the ten-year sentence imposed by the trial court does not shock the sense of justice, nor is it grossly disproportionate to the severity of the offense. This assignment of error is without merit.

Error Patent

However, the sentence imposed by the trial court is illegally lenient. The trial court imposed a sentence with one year to be served without benefits; however, La. R.S. 14:81(H)(2) requires that at least two years be served without benefits. This error is not automatically corrected under La. R.S. 15:301.1 because the penalty language of the statute gives the trial court discretion in determining the exact length of time that benefits are to be withheld. Accordingly, the sentence must be vacated and the case remanded to the trial court for resentencing in compliance with La. R.S. 14:81(H)(2). See State v. Boehm , 51,229 (La. App. 2 Cir. 4/5/17), 217 So.3d 596 ; State v. Rose , 50,861 (La. App. 2 Cir. 9/28/16), 206 So.3d 1102.

CONCLUSION

For the aforementioned reasons, the conviction of Jessie Jones is affirmed, and the sentence is vacated and remanded for resentencing to determine the period of benefit restriction.

AFFIRMED IN PART, REMANDED IN PART.

      Gingerbread House is a local child advocacy center.

      The record indicates that at the time of this trial, Jones was facing charges in Bossier Parish for offenses against Shawna Thomas.


author: McCALLUM, J.

text:
    STATE of Louisiana, Appellee v. Carlton BROOKS, Appellant
    No. 51,917-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 11, 2018
    LOUISIANA APPELLATE PROJECT, By: Edward K. Bauman, Lake Charles, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, Counsel for Appellee
    MONIQUE Y. METOYER, REBECCA A. EDWARDS, Assistant District Attorneys
    Before STONE, COX, and McCALLUM, JJ.
   McCALLUM, J.

Carlton Brooks committed two counts of second degree murder when he was 17 years old. In 2002, he was indicted by a grand jury. He was subsequently convicted on two counts of second degree murder, and on June 27, 2006, was given two concurrent life sentences, without possibility of parole. His convictions and sentences were affirmed. State v. Brooks , 42,226 (La. App. 2 Cir. 8/15/2007), 962 So.2d 1220. On May 31, 2017, the trial court amended Brooks' sentences to life imprisonment with the possibility of parole, pursuant to the newly announced constitutional prohibition on mandatory sentences of life imprisonment without parole for juvenile murderers, Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L. Ed. 2d 407 (2012).

Brooks appeals and urges four assignments of error: (1) the trial court exceeded its authority in adding parole eligibility to Brooks' sentence, which renders the sentence illegal and violates due process and Louisiana's constitutional separation of powers; (2) even with parole eligibility, Brooks' sentence still does not afford him a "meaningful opportunity for release," as required by Miller ; (3) Brooks should have been given an evidentiary hearing at which he could present evidence showing his entitlement to a downward departure from the mandatory life sentence; and (4) the trial court failed to specify when Brooks will become eligible for parole consideration. For the reasons stated, we affirm Brooks' amended sentence.

DISCUSSION

We begin by outlining the development of the law involved in this case, and we place the trial court's ruling in that chronology. At the time Brooks committed the second degree murders, La. R.S. 14:30.1 provided a mandatory sentence of life imprisonment at hard labor without parole. In 2012, Miller, supra , changed the law by holding that the Eighth Amendment prohibition of cruel and unusual punishment disallows the imposition of a mandatory life sentence-without possibility of parole-on a person who commits murder prior to reaching the age of 18 years.

In 2013, the Louisiana legislature amended La. R.S. 15:574.4 and La. C. Cr. P. art. 878.1 in order to satisfy the requirements of Miller . However, the Louisiana Supreme Court, in State v. Tate , 2012-2763 (La. 11/5/13), 130 So.3d 829, held that these provisions were prospective only, and that Miller itself is prospective only. In Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the U.S. Supreme Court overruled Tate , holding that Miller applies retroactively.

On remand in Montgomery , in 2016, the Louisiana Supreme Court held that the courts of this state are to implement Miller and Montgomery , i.e. , provide those who were under 18 at the time they committed murder with the opportunity to obtain parole eligibility via contradictory hearing. The court so held despite the absence of legislative authority for implementing Miller retroactively, stating:

Therefore, in the absence of further legislative action, the previously enacted provisions [i.e. , the 2013 amendments which were held in Tate to be prospective only], should be used for the resentencing hearings that must now be conducted on remand from the United States Supreme Court to determine whether Henry Montgomery, and other prisoners like him, will be granted or denied parole eligibility.

State v. Montgomery , 2013-1163 (La. 6/28/16), 194 So.3d 606, 608.

It was at this point in the development of the law (on May 31, 2017) that the trial court resentenced Brooks, granting him parole eligibility as provided in La. R.S. 15:574(E) (2013). However, effective August 1, 2017, the legislature added retroactive provisions to La. R.S. 15:574.4 and La. C. Cr. P. art. 878.1. These provisions allow juvenile murderers to obtain parole in accordance with the conditions and requirements set forth therein. 2017 La. Acts 2017, No. 277, § 1 & § 2.

In State v. Harper , 51,539 (La. App. 2 Cir. 8/9/17), 243 So.3d 1084, 2017 WL 3400624, and State v. Jackson, 51,527 (La. App. 2 Cir. 8/9/17), 243 So.3d 1093, 2017 WL 3400648, we rejected all of the arguments the defendant makes in this case. Our approach remains unaltered.

Lack of judicial authority to grant parole eligibility

Effective August 1, 2017, the Legislature added Subsection (G) to La. R.S. 15:574.4 and expansively amended La. C. Cr. P. art. 878.1. These retroactive provisions allow juvenile murderers to obtain parole eligibility as required by Miller and Montgomery . Additionally, these amendments reduced-from 35 years to 25 years-the time that a juvenile murderer must serve before becoming eligible for parole consideration. These amendments apply to the instant case, and therefore, Brooks' argument that, in granting him parole eligibility, the trial court exceeded its authority, and violated due process and the separation of powers is moot.

We note, however, that La. R.S. 15:574(G) (2017) now governs Brooks' parole eligibility. La. C. Cr. P. art. 878.1(B)(2)(a) dictates that result, as follows:

(2) If an offender was indicted prior to August 1, 2017, for the crime of ... second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense and a hearing was held pursuant to this Article prior to August 1, 2017, the following shall apply: (a) If the court determined at the hearing that was held prior to August 1, 2017, that the offender's sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G).

Brooks further argues that, because his sentence is "illegal," he should instead be given the maximum sentence for the most serious lesser included offense, i.e. , manslaughter. The premise of this argument, however, is wrong: his sentence, as amended, is not illegal.

Accordingly, these assignments of error are without merit.

Meaningful opportunity for release; evidentiary hearing

Granting parole eligibility to juveniles found guilty of murder satisfies the requirements of Miller. The U.S. Supreme Court, in Montgomery , supra, stated:

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g. , Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.

Id. at 736.

Furthermore, contrary to Brooks' argument, parole eligibility under La. R.S. 15:574.4 and La. C. Cr. P. art. 878.1, specifically, does satisfy Miller 's requirement that juvenile homicide offenders be given a "meaningful opportunity for release." Harper , supra ; Jackson , supra ; State v. Calhoun , 51,337 (La. App. 2 Cir. 5/17/17), 222 So.3d 903, 907 ; State v. Shaffer , 11-1756 (La. 11/23/11), 77 So.3d 939 (access to Louisiana parole board consideration satisfies Eighth Amendment requirement of "meaningful opportunity for release").

Therefore, Miller does not entitle Brooks to an evidentiary hearing, an individualized sentence, or the possibility of a downward departure. Indeed, in Jackson , supra , we held:

The sole question to be answered in a Miller hearing is whether the defendant should have a chance for parole. Accordingly there is no consideration of whether there should be a downward departure from mandatory sentence of life imprisonment at hard labor. Rather, the trial court considers only whether that mandatory sentence should include parole eligibility.

Id. ; accord Calhoun , supra .

These assignments of error are without merit.

Time when defendant becomes parole eligible

Brooks asserts that, in granting him parole eligibility, the trial court failed to specify when he would be eligible for parole consideration. That assertion is incorrect: by specifying that Brooks' parole eligibility was governed by La. R.S. 15:574(E), the trial court incorporated the 35-year minimum which existed at that time. Additionally, La. R.S. 15:574.4(G)(1)(a) now governs retroactively, and specifies that a convict who committed second degree murder before turning 18 years of age becomes eligible for parole consideration, if at all, after serving 25 years of the sentence.

CONCLUSION

Accordingly, Brooks' sentence, as now governed by La. R.S. 15: 574(G), is AFFIRMED.

      The trial court stated that it granted Brooks' parole eligibility as implemented by La. R.S. 15: 574(E) ("Subsection (E)"), which, at the time of Brooks' resentencing, required 35 years of the sentence be served before the convict could be considered for parole.

      Brooks' counsel suggests no basis for distinguishing Harper or Jackson ; in fact, he does not discuss either case in his brief.

      We have already recognized their retroactive application. Jackson , supra.

      Even if Brooks' sentence were illegal, he would not be entitled to manslaughter sentencing. Brooks bases this argument on State v. Craig , 340 So.2d 191 (La. 1976). In Jackson , we rejected that argument:
      [T]he defendant's proposed Craig solution has been soundly rejected by the courts. See State v. Shaffer , 2011-1756 (La. 11/23/11), 77 So.3d 939 ; State v. Leason , 2011-1757 (La. 11/23/11), 77 So.3d 933. See also State v. Plater , 51,338 (La. App. 2 Cir. 5/17/17), 222 So.3d 897, 2017 WL 2131499 ; State v. Calhoun , 51,337 (La. App. 2 Cir. 5/17/17), 222 So.3d 903, 2017 WL 2131500 ; State v. Williams , 2015-0866 (La. App. 4 Cir. 1/20/16), 186 So.3d 242, writ denied , 2016-0332 (La. 3/31/17), 217 So.3d 358 ; State v. Graham , 2014-1769 (La. App. 1 Cir. 4/24/15), 171 So.3d 272, writ denied , 2015-1028 (La. 4/8/16), 191 So.3d 583.
      Id.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Cody FICKLEN
    17-995
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2018
    Keith Stutes, Fifteenth Judicial District Attorney, Roger P. Hamilton, Jr., Assistant District Attorney, 100 North State Street, Suite 215, Abbeville, LA 70510, (337) 232-5170, COUNSEL FOR: State of Louisiana
    Lawrence C. Billeaud, Attorney at Law, 706 West University Avenue, Lafayette, LA, 70506, (337), 266-2055, COUNSEL FOR APPLICANT: Cody Ficklen
    Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.
   GREMILLION, Judge.

Defendant, Cody Ficklen, was one of fourteen defendants indicted on August 26, 2016, for one count of conspiracy to racketeer, a violation of La.R.S. 15:1353(D), one count of racketeering, a violation of La.R.S. 15:1353(C), and one count of being a member of a criminal street gang, a violation of La.R.S. 15:1403. Defendant filed a Motion to Quash and a Motion for Bill of Particulars. Subsequently, he filed a First Amended Motion to Quash. Following hearings on Defendant's motions, the trial court denied Defendant's motion to quash the indictment with written reasons.

Defendant now seeks review of the trial court's ruling, alleging that the trial court erred when it denied his motion to quash the indictment because the indictment was insufficient on its face and the last alleged overt criminal act had prescribed pursuant to La.Code Crim.P. art. 572.

For the following reasons, we find no error in the trial court's ruling and deny the writ.

ASSIGNMENT OF ERRORS ONE AND TWO

Defendant argues the trial court erred when it denied his motion to quash the State's indictment, which alleged involvement in a criminal enterprise and in a criminal street gang. Defendant also claims that the State failed to establish the existence of an enterprise. Defendant refers to the 1,338 pages received from the State in response to his Motion for Bill of Particulars, which contained a compilation of police reports upon which the indictment was based.

Defendant primarily argues in brief to this court that even if there was a criminal enterprise, the bill of indictment reflected that Defendant's alleged last overt act in furtherance of the alleged enterprise had prescribed pursuant to the statute of limitations found in La.Code Crim.P. art. 572(A)(1).

At the hearings on Defendant's motion to quash the indictment, Defendant argued that the indictment did not show that a criminal "enterprise" existed as defined by La.R.S. 15:1352(B) ; accordingly, the indictment was deficient on its face and should have been quashed. He further asserted that the indictment did not show he was involved with said enterprise when the indictment was filed on August 26, 2016. He pointed out that the indictment alleged he had committed seven overt acts in furtherance of the enterprise, the first occurring in December 2005, and the last occurring in March 2008. Therefore, Defendant asserted that the last of the acts alleged had prescribed pursuant to La.Code Crim.P. art. 572(A)(1), and the State, therefore, cannot show that he was a member of a criminal enterprise or a criminal street gang.

In Defendant's Motion to Quash, besides arguing the latest alleged overt act had prescribed in 2006, and, therefore, there was no proof he was a member of a criminal enterprise or a street gang, he also specifically argued that the State will not be able to prove the existence of a criminal enterprise. However, as noted, Defendant also alleges that the indictment and the State's response to Defendant's Motion for Bill of Particulars failed to prove that a criminal enterprise even existed. Accordingly, we address both allegations Defendant argued in his Motion to Quash and at the hearings on the motion.

The general grounds for a motion to quash are:

(1) The indictment fails to charge an offense which is punishable under a valid statute.
(2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
(3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
(4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
(5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
(6) Trial for the offense charged would constitute double jeopardy.
(7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
(8) The court has no jurisdiction of the offense charged.
(9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.
(10) The individual charged with a violation of the Uniform Controlled Dangerous Substances Law has a valid prescription for that substance.

La.Code Crim.P. art. 532 (footnote omitted).

Regarding motions to quash, the first circuit stated in State v. Flanigan , 14-20, p. 1 (La.App. 1 Cir. 6/6/14), 2014 WL 3843934 (unpublished opinion), writ denied, 14-1446 (La. 3/13/15), 161 So.3d 637, that:

The motion to quash is essentially a mechanism by which to raise pretrial pleas of defense, i.e., those matters which do not go to the merits of the charge. See La.Code Crim.P. arts 531 -34; State v. Beauchamp , 510 So.2d 22, 25 (La.App. 1st Cir.), writ denied , 512 So.2d 1176 (La.1987). It is treated much like an exception of no cause of action in a civil suit. Beauchamp , 510 So.2d at 25. In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars and determine, as a matter of law and from the face of the pleadings, whether or not a crime has been charged. While evidence may be adduced, such may not include a defense on the merits. The question of factual guilt or innocence of the offense charged is not raised by the motion to quash.

In its lengthy and detailed reasons for ruling, the trial court, after noting that "the number of overt acts committed are alleged to be committed by a criminal enterprise and not an individual," went on to state, in pertinent part:

The State has the burden of proof to demonstrate the essential element "enterprise" exist[s] at trial. A decision on whether or not the alleged facts in the indictment and the bill of particulars are in fact an enterprise would amount to judgment on the case's merits, thus a jury should decide whether the essential element "enterprise" actually exist. State v. Armstead, 14-36 (La.App. 4 Cir. 1/28/15)[,] [159 So.3d 502,] [w ]rit denied [,] 15-392[ ] (La. 1/8/16), 184 So[.]3d 692. Therefore, the Defendants' motion to quash on the basis the State's bill of particulars does not sufficiently allege facts illustrating an "enterprise" is denied.
The second issue the court must address is whether the time limitation for the institution of prosecution has expired. Time limitations for racketeering prosecutions are set out in Louisiana Revised Statute[s] 15:1352 C. First, the statute states that predicate acts must have occurred after August 21, 1992. Next, it states that the last of such predicate acts must occur within five years after a prior predicate act of racketeering activity. LA. R.S. 15:1352 C.
In this case, the State filed a bill of information on August 26, 2016. The State alleges 73 overt act[s] committed on behalf of the alleged "enterprise" GOTM. Act 23 from the bill of particulars occurred on March 6, 2016. The bill of particulars does not indicate a five-year break between alleged overt acts committed on behalf of GOTM, thus not warranting a granting of a motion to quash.

Testimony at the Hearing

Leland Laseter, a sergeant with the Abbeville Police Department, testified that he was the lead investigator in the case. He described how various agencies worked to put together paperwork upon which the indictment was based. He agreed there were no wiretaps, confessions, or information given as to the structure or organization of the alleged criminal enterprise. All of the criminal conduct which was listed in the indictment was gathered from separate police reports. Sergeant Laseter agreed that the last overt act listed for Defendant occurred in March 2008. However, Sergeant Laseter stated that while it was not listed in the indictment, in his investigative notes he had a report that Defendant was seen firing a gun in Abbeville on March 16, 2016, and according to the report, the shooting was still under investigation. When questioned about the details of the alleged March 2016 shooting, Sergeant Laseter had no further information.

The hearing continued with several co-defendants adopting Defendant's motion to quash the indictment. All of the co-defendants' counsel sought the same information-in what manner or how did the alleged overt acts further a criminal enterprise. The trial court allowed the State and defense counsels to submit briefs or supplemental briefs and the hearing was continued.

Sergeant Laseter again took the stand at the subsequent hearing. The hearing continued with the discussion of whether the State's response to the bill of particulars was deficient because it simply reiterated the allegations set out in the indictment and did not establish the existence of the criminal enterprise. Sergeant Laseter was questioned in what manner the alleged overt acts furthered a criminal enterprise, answers of which the defendants claimed they were also entitled to via the bill of particulars. The State objected to that line of questions, stating the existence of a criminal enterprise was a question for the finder of fact as the information sought pertained to the merits of the allegations. However, the co-defendants and Defendant in the current writ asserted that they were being denied the right to prepare a defense to the allegations.

Enterprise

A defendant shall be informed of the nature and cause of the accusation against him. La.Const. art. I, § 13. That requirement is implemented by La.Code Crim.P. art. 464, which provides:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

An "enterprise," as defined by the Louisiana Racketeering Act, La.R.S. 15:1351 et seq. , "means any individual, sole proprietorship, partnership, corporation or other legal entity, or any unchartered association, or group of individuals associated in fact and includes unlawful as well as lawful enterprises and governmental as well as other entities." La.R.S. 15:1352(B). The existence of an enterprise is an essential element to the crime of racketeering. La.R.S. 15:1353(D).

In brief, Defendant argues:

Not one co-defendant has given any form of statement alleging the existence of an enterprise, nor does the state have possession of any wire tape recordings which suggest an enterprise, with structure and control over members of the enterprise. The report is merely an accumulation of various reports of individuals who are known to be friends or neighborhood acquaintances, and who are alleged to have committed criminal acts at various times in their respective lives.

Louisiana Revised Statutes 15:1352 defines racketeering, in pertinent part, as follows:

A. As used in this Chapter, "racketeering activity" means committing, attempting to commit, conspiring to commit, or soliciting, coercing, or intimidating another person to commit any crime that is punishable under the following provision of Title 14 of the Louisiana Revised Statutes of 1950, the Uniform Controlled Dangerous Substances Law, or the Louisiana Securities:
....
C. "Pattern of racketeering activity" means engaging in at least two incidents of racketeering activity that have the same or similar intents, results, principals, interrelated by distinguishing characteristics and are not isolated incidents, provided at least one of such incidents occurs after August 21, 1992 and that the last of such incident occurs within five years after a prior incident of racketeering activity.

Count 1 of the indictment in this case alleged that the defendants were members of an organization engaged in various criminal activities, historically associated in Abbeville, Louisiana, focused primarily in an area south of Charity Street. While operating mostly in Vermilion Parish, the enterprise also operated in Lafayette and Calcasieu Parishes. The indictment listed the criminal purpose, means, and methods of the enterprise known as G.O.T.M. (Get it out the Mudd), and the subsets, "Southside" or "Green Street," also referred to as "South Side Gang."

In count 2, the indictment lists all the members who interacted with each other and others to conduct or participate in the enterprise through a pattern of racketeering activity in violation of La.R.S. 15:1353(D). The indictment alleged the enterprise commenced in March 2002 and remained active until the date of the indictment. The indictment listed seventy-three overt acts committed by fourteen members. It set out individual criminal acts by dates and descriptions and alleged that the acts were committed in furtherance of a racketeering conspiracy and accomplished the goals of the conspiracy. It named the individuals who committed those acts as a part of the criminal enterprise.

In count 3, the indictment alleged Defendant belonged to or associated with a criminal street gang from March 2002 and:

[C]ontinuing on or about the date on the return of the Indictment before this court for the benefit of, at the direction of, or in association with a Criminal Street Gang, who's primary activities include the commission of murder, Attempted Murder, Aggravated assault by Drive By shooting, Robbery, Burglary, Intimidation of Witnesses, and the sale, transportation, manufacturing and/or offering of Controlled Dangerous Substances within Vermilion, Lafayette, and Calcasieu to promote, assist or further the affairs of the Criminal Street Gang. La.R.S. 15:1403.

As noted above, for the purpose of a motion to quash the indictment, the allegations made in the indictment must be considered as true, and if true, they must establish the existence of an enterprise. At the hearing, the State referred to this court's ruling in State v. Diggs , 17-161 (La.App. 3 Cir. 4/26/17), 2017 WL 1507406 unpublished opinion, writ denied , 17-899 (La. 9/29/17), 227 So.3d 287, wherein the defendants, who were indicted for racketeering and participating in a criminal street gang, asserted that the indictment must be quashed for the failure to allege facts which showed an "enterprise" as required in La.R.S. 15:1353(D). As in the current case, the defendants in Diggs contended the indictment posed no facts to suggest the defendants even knew each other, and the indictment was merely a recitation of alleged acts of unrelated individuals. This court denied writs finding no error in the trial court's ruling concerning the sufficiency of the indictment.

In the current case, regarding whether the State's response to Defendant's bill of particulars was sufficient, in State v. Winston , 97-1183, pp. 9-10 (La.App. 3 Cir. 12/9/98), 723 So.2d 506, 511, writ denied , 99-205 (La. 5/28/99), 743 So.2d 659, this court noted:

The purpose of a bill of particulars is to provide an accused with sufficient information as to the nature and cause of the offense with which he is charged. State v. Wiggins , 518 So.2d 543 (La.App. 5 Cir.1987) ; writs denied, 530 So.2d 562 (La.1988) and 569 So.2d 979 (La.1990) ; State v. Frith , 436 So.2d 623 (La.App. 3 Cir.), writ denied , 440 So.2d 731 (La.1983) ; La.Code Crim.P. art. 484. It is now clear that the constitutional provision, La. Const. art. 1, § 13, requiring that a defendant be informed of the nature and cause of the accusation is not to be restricted to mean that he must be so informed by indictment; the defendant may also be informed of the facts by bill of particulars. State v. Griffin, 495 So.2d 1306 (La.1986) ; see also State v. Gainey , 376 So.2d 1240 (La.1979).
A defendant is entitled to know the alleged method of the commission of an offense when several means of commission of an offense are specified by the statute. State v. Huizar, 414 So.2d 741 (La.1982). However, a motion for a bill of particulars is not a method for a defendant to obtain the state's evidence. La.Code Crim.P. art. 484 ; State v. Gray, 351 So.2d 448 (La.1977). It is a tool for a defendant to become informed about the nature and cause of the charge against him. La.Code Crim.P. art. 484 ; State v. Huizar , 332 So.2d 449 (La.1976). The bill of particulars may not be used to discover the details of the evidence, that is, to know "exactly how," the state intends to prove its case. State v. Walker , 344 So.2d 990 (La.1977). There is no formula regarding the information the State must make available. The extent to which particulars are granted depends on the nature and complexity of the case. State v. Miller , 319 So.2d 339 (La.1975). Reversible error occurs when there is a failure to provide a defendant information "of the nature and cause of the accusation against [him]." State v. Atkins , 360 So.2d 1341, 1344 (La.1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979).

In its ruling, the trial court noted that the "overt acts committed are alleged to be committed by a criminal enterprise and not an individual." The trial court noted that pursuant to the indictment, there were fourteen members within the enterprise and seventy-three alleged overt acts between the first alleged act committed in March 2002, and the last alleged overt act committed in January 2016, and was "within five years after a prior incident of racketeering activity." A review of the indictment shows that at least one overt act occurred yearly from 2002 to 2016. Referring to U.S. v. Turkette , 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), the trial court noted that the Supreme Court stated specifically that, "An 'enterprise' is not a 'pattern of racketeering activity' but is an entity separate and apart from the pattern of activity in which it engages." Noteworthy, pursuant to the language of La.R.S. 15:1352(C), as stated above, a " '[p]attern of racketeering activity' means engaging in at least two incidents of racketeering activity ... provided at least one of such incidents occurs after August 21, 1992 and that the last such incidents occurs within five years after a prior incident of racketeering activity." This suggests that the offense of racketeering may have a built-in time limitation in which to establish an individual's participation in a criminal enterprise, should the enterprise exist.

In H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 2900, 106 L.Ed.2d 195 (1989), the Supreme court, while discussing racketeering and the concept of "pattern," noted:

The legislative history, which we discussed in Sedima [S.P.R.L. v. Imrex Co., Inc. ], supra, 473 U.S. [479], at 496, n. 14, 105 S.Ct. [3275] at 3285, n. 14 [87 L.Ed.2d 346 (1985) ], shows that Congress indeed had a fairly flexible concept of a pattern in mind. A pattern is not formed by "sporadic activity," S.Rep. No. 91-617, supra, p. 158 (1969), and a person cannot "be subjected to the sanctions of title IX simply for committing two widely separated and isolated criminal offenses," 116 Cong. Rec., at 18940 (1970) (Sen. McClellan). Instead, "[t]he term 'pattern' itself requires the showing of a relationship" between the predicates, ibid., and of " 'the threat of continuing activity,' " ibid., quoting S.Rep. No. 91-617, at 158. "It is this factor of continuity plus relationship which combines to produce a pattern." Ibid. (emphasis added). RICO's legislative history reveals Congress' intent that to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity.

The Supreme Court further stated:

A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct. Often a RICO action will be brought before continuity can be established in this way. In such cases, liability depends on whether the threat of continuity is demonstrated. See S.Rep. No. 91-617, at 158.

Id. at 242, 109 S.Ct. 2893.

Considering that the purpose of a sufficient indictment is to provide a defendant with adequate notice of the crime for which he is charged so that he can properly prepare his defense and considering the above jurisprudence, the trial court did not err when it denied Defendant's motion to quash which alleged the indictment was insufficient to allow Defendant to prepare a defense.

Prescription

Louisiana Code of Criminal Procedure Article 572, which addresses the limitation on the prosecution of non-capital offenses, provides in pertinent part:

A. Except as provided in Articles 571 and 571.1, no person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted within the following periods of time after the offense has been committed:
(1) Six years, for a felony necessarily punishable by imprisonment at hard labor.

Defendant argues that even if there was a criminal enterprise, he cannot be prosecuted as a participant in the enterprise for the reason that the last overt act listed in the indictment was in March 2008, a little more than eight years prior to the filing of the indictment. Defendant argued at the hearing and in brief to this court that because the alleged overt act was committed in March 2008 and because La.Code Crim.P. art. 572(A)(1) provides that prosecution must commence within six years of the date of the offense, the prosecution was not timely instituted, and he could not be charged absent an exception to the running of the time limitations. Defendant argues that neither the State nor the trial court addressed this issue at the hearing, in the State's response brief, or by the trial court in its ruling.

Defendant is correct in that the last alleged overt criminal act has prescribed; however, in its ruling, the trial court, while not stating so expressly, reasoned that Defendant was not being charged with the March 2008 overt act but with the current offenses of conspiracy to commit racketeering, racketeering, and participating in a criminal street gang. The crimes of which Defendant is being charged have not prescribed. The trial court did not err in denying Defendant's motion to quash alleging that the expiration of the time limitation to prosecute on the overt acts excluded him from the indictment.

Criminal Street Gang Activity/ La. R.S. 15:1403

As for count 3 of the indictment, criminal street gang activity, Defendant never raised the issue of whether the eight-year lapse from the date of his last overt act absolved him from participation in or on behalf of a street gang. Nor did the trial court specifically address the separate charge of participation in a criminal street gang on the issue of prescription. Furthermore, whether the alleged overt act listed in count 2 had prescribed is not applicable to this case in that La.R.S. 15:1403 is a sentencing enhancement statute in a situation where criminal street gang activity results in a conviction. See State v. Sandifer , 15-590 (La.App. 4 Cir. 4/20/16), 195 So.3d 119.

CONCLUSION

The indictment adequately informs Defendant of the nature and cause of the accusations against him and is sufficient to allow him to prepare a defense. Further, Defendant is not being charged with the last overt act but with the current offenses of conspiracy to commit racketeering, racketeering, and participating in a criminal street gang. The crimes of which Defendant is being charged have not prescribed pursuant to La.R.S. 15:1352(C). Finally, whether the last overt act committed by Defendant has prescribed is not applicable to the charge of criminal street gang activity in that La.R.S. 15:1403 is a sentencing enhancement statute in a situation where street gang activity results in a conviction. Accordingly, there was no error in the trial court's denial of Defendant's June 1, 2017, Motion to Quash, or his June 29, 2017, First Amended Motion to Quash.

WRIT DENIED.

      "Act 7-On or about March 28, 2008, Cody Ficklen did commit the crime of Possession with Intent to Distribute a Schedule 11, CDS."