STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2017 KA 0014R2

STATE OF LOUISIANA

VERSUS

BRANDON BOYD

Judgment Rendered: SEP 2 5 2020

Appealed Brom the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 06- 14- 0783

Honorable Beau Higginbotham, Judge Presiding

Hillar C. Moore, III Counsel for Appellee, Cristopher J.M. Caster State of Louisiana Baton Rouge, LA

Michael A. Fiser Counsel for Defendant/Appellant, Baton Rouge, LA Brandon Boyd

BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ. f

WHIPPLE, C.J.

The defendant, Brandon Boyd, was charged by grand jury indictment with one count of second degree murder, a violation of LSA-R.S. 14: 30. 1. He pled not

guilty and was subsequently found competent to stand trial. Following a trial by jury, he was found guilty as charged. The district court imposed a term of life imprisonment at hard labor, to be served without the benefit of probation, parole, or suspension of sentence.

On appeal to this court, the defendant argued that the evidence was

insufficient to support his conviction and that his sentence was excessive. State v.

Boyd, 2017- 0014 ( La. App. Ist Cir. 9/ 15/ 17), 2017 WL 4082248, * 1. On review,

this court found that the evidence was sufficient, but pretermitted consideration of

whether the defendant' s sentence was excessive because we found the defendant

had not expressly waived the twenty- four hour delay between sentencing and denial of his motions for new trial and post -verdict judgment of acquittal, as

required by LSA-C. CrR art. 873. Boyd, 2017 WL 4082248 at * 3 -* 4.

Accordingly, we affirmed the conviction, vacated the sentence, and remanded to the district court for resentencing. Boyd, 2017 WL 40$224$ at * 4.

On review, the Louisiana Supreme Court concluded that defendant

explicitly waived the sentencing delay had occurred, and, therefore, reversed our previous opinion, reinstated the sentence, and remanded to this court for

consideration of any pretennitted claims. State v. Boyd, 2017- 1749 ( La. 8/ 31/ 18),

251 So. 3d 407, 408 ( per curiam). On initial remand, we affirmed the defendant' s

sentence. State v. Boyd, 2017- 0014R ( La. App. 1st Cir. 5/ 9/ 19), 2019 WL

2051932, * 3.

Following the United States Supreme Court ruling in Ramos v. Louisiana, 590 U. S. 140 S. Ct. 1390, 206 L. Ed. 2d 583 ( 2020), the Louisiana Supreme

Court granted certiorari and again remanded this case to this court for further proceedings and to conduct a new error patent review in light of Ramos. State v. Boyd, 2019- 00953 ( La. 6/ 3/ 20), 296 So. 3d 1024, 1025 ( per curiam). The

Louisiana Supreme Court further instructed "[ i] f the non -unanimous jury claim

was not preserved for review in the trial court or was abandoned during any stage of the proceedings, the court of appeal should nonetheless consider the issue as part of its error patent review. See La. C. Cr.P. art. 920( 2)." Boyd, 296 So. 3d at

1025. For the following reasons, we vacate the conviction and sentence and remand to the district court.

PATENT ERROR REVIEW

Louisiana Code of Criminal Procedure article 920( 2) requires that all appeals

be reviewed for errors patent on the face of the record. State v. Duhon, 2018- 0593

La. App. 1st Cir. 12/ 28/ 18), 270 So. 3d 597, 635, writ denied, 2019- 0124 ( La. 5/ 28/ 19), 273 So. 3d 315. A patent error is "[ a] n error that is discoverable by a mere

inspection of the pleadings and proceedings and without inspection of the evidence." LSA-C. Cr.P. art. 920( 2).

A review of the trial minutes in this case indicates that following the return of the verdict, the jurors were polled and ten jurors voted "[ y] es -- Guilty[,]" while two jurors voted "[ n] o — Not guilty."

In Ramos, 590 U.S. at , 140 S. Ct. at 1397, the United States Supreme

Court overruled Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 1972), and held that the right to a jury trial under the Sixth Amendment of the United States Constitution, incorporated against the States by way of the Fourteenth Amendment of the United States Constitution, requires a unanimous verdict to

convict a defendant of a serious offense. The Ramos Court further noted that its

ruling applied to those defendants convicted of felonies by nonunanimous verdicts

whose cases are still pending on direct appeal. Ramos, 590 U. S. at , 140 S. Ct. at 1406. See also Schriro v. Summerlin, 542 U.S. 348, 351, 124 S. Ct. 2519, 2522,

159 L. Ed. 2d 442 ( 2004) ( observing that "[ w]hen a decision of [the United States

Supreme Court] results in a ` new rule,' that rule applies to all criminal cases still

pending on direct review"); State v. Bennett, 2020- 0028 (La. App. 1 st Cir. 7/ 24/ 20), So. 3d , 2020 WL 4250992; State v. Dearmas, 2019- 1609 ( La. App. 1 st Cir. 7/ 24/ 20), So. 3d , 2020 WL 4250862.

In the instant case, we note patent error in the nonunanimous verdict of guilty of second degree murder. Further, the nonunanimous verdict prejudiced the

defendant and affected his substantial rights because it resulted in his conviction

contrary to Ramos. See LSA-C. Cr.P. art. 921 a] judgment ... shall not be

reversed by an appellate court because of any error, ... which does not affect

substantial rights of the accused."); c£ State v. Hilton, 99- 1239 ( La. App. lst Cir. 3/ 31/ 00), 764 So. 2d 1027, 1038, writ denied, 2000- 0958 ( La. 3/ 9/ 01), 786 So. 2d

113. Accordingly, the defendant' s conviction and sentence are vacated, and this case is remanded to the district court for further proceedings consistent with this opinion.

CONVICTION AND SENTENCE VACATED; REMANDED.