NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2021 KA 0390

STATE OF LOUISIANA

VERSUS

CODY PAUL DUPRE

Judgment Rendered: DEC 2 2 2021

Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Case No. 773769

The Honorable Juan W. Pickett, Judge Presiding

Ellen Daigle Doskey Counsel for Plaintiff/Appellee Asst. District Attorney State of Louisiana Joseph L. Waitz, Jr. District Attorney Houma, LA

Jane L. Beebe Counsel for Defendant/ Appellant Addis, LA Cody Paul Dupre BEFORE: LANIER, WOLFE, and BURRIS,' JJ.

1 The Honorable William J. Burris, retired, is serving pro tempore by special appointment of the Louisiana Supreme Court.

LANIER, J.

Defendant, Cody Dupre, was charged by bill of information with aggravated assault of a peace officer, a violation of La. R.S. 14: 37. 2 ( count one); aggravated

assault with a firearm, a violation of La. R.S. 14: 37. 4 ( count two); and being a felon in possession of a firearm, a violation of La. R.S. 14: 95. 1 ( count three). He

pled not guilty. After a trial by jury, defendant was found guilty as charged by a ten -to -two jury vote on counts one and two, and an eleven -to -one vote on count three. The trial court later adjudicated defendant a habitual offender and imposed

three concurrent sentences of twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence. Defendant timely appealed. For

the following reasons, we vacate defendant' s convictions and sentences, and

remand for a new trial.

CONSTITUTIONALITY OF NONUNANIMOUS VERDICT

In his appellate brief, defendant argues the nonunanimous verdict to convict

him violated his rights under the Sixth and Fourteenth Amendments to the United

States Constitution. Defendant further argues that the matter should be recognized

as error patent on the face of the record. The State likewise acknowledges that

defendant' s nonunanimous jury verdicts are error patent mandating reversal of his convictions and remand for a new trial.'

As now fully recognized and followed by the courts of this state, in Ramos v. Louisiana, U.S. , 140 S. Ct. 13905 13975 206 L.Ed.2d 583 ( 2020) 9

2 The record reveals that defendant did not object to or challenge the constitutionality of the nonunanimous verdicts in the trial court. See La. Code Crim. P. art. 841( A) (" An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence"); State v. Hammond, 2019- 1580 ( La. App. 1st Cir. 8/ 3/ 20); 310 So. 3d 749, 753, citing State v. Hatton, 2007- 2377 ( La. 7/ 1/ 08), 985 So. 2d 709, 718 ("[ T] he general rule is that a constitutional challenge may not be considered by an appellate court unless it was properly pleaded and raised in the trial court below"). But as correctly noted by the parties, the Louisiana Supreme Court has held that the issue of a nonunanimous jury verdict is an error patent that an appellate court can properly consider pursuant to La. Code Crim. P. art. 920( 2), even absent the issue being preserved below. See, e. g., State v. Curry, 2019- 01723 ( La. 6/ 3/ 20), 296 So. 3d 1030 ( per curiam).

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,

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. Cohen, 2019- 00949 ( La. 1/ 27/ 21), 315 So. 3d 202 ( per curiam).

Accordingly, defendant' s sole assignment of error has merit. Defendant' s

convictions and sentences are vacated, and this case is remanded to the trial court

for further proceedings.

CONVICTIONS AND SENTENCES VACATED; REMANDED.

kJ