NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA

COURT OF APPEAL w G yy FIRST CIRCUIT

2020 KA 1338

STATE OF LOUISIANA

VERSUS

ELISA LANDRY

DATE OF JUDGMENT.- OCT 12 2021

ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 04- 18- 0549, SECTION S, PARISH OF EAST BATON ROUGE STATE OF LOUISIANA

HONORABLE TARVALD ANTHONY SMITH, JUDGE

Hillar C. Moore Counsel for Appellee District Attorney State of Louisiana Dylan C. Alge Assistant District Attorney Baton Rouge, Louisiana

Prentice Lang White Counsel for Defendant -Appellant Baton Rouge, Louisiana Elisa Landry

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

Disposition: CONVICTION AND SENTENCE ON COUNT I VACATED; REMANDED.

CHUTZ, J.

The defendant, Elisa Landry, was charged by bill of information with attempted second- degree murder, a violation of La. R.S. 14: 27 and La. R.S.

14: 30. 1 ( count I); simple kidnapping, a violation of La. R.S. 14: 45 ( count II); and resisting a police officer with force or violence, a violation of La. R.S. 14: 108. 2 count III). She pled not guilty on all counts. She filed a motion to instruct the jury that a unanimous verdict was required to convict her on each count, but the motion was denied.' Following a jury trial, by non -unanimous verdicts, on count I, she was found guilty of the responsive offense of attempted manslaughter, a violation of La. R.S. 14: 27 and La. R. S. 14: 31; and on counts II and III, she was

found not guilty. She was sentenced to fifteen years at hard labor. She now

appeals, challenging the constitutionality of the non -unanimous verdict on count I.

For the following reasons, we vacate the conviction and sentence on count I and remand for further proceedings.

CONSTITUTIONALITY OF NON -UNANIMOUS VERDICT

In her sole assignment of error, the defendant contends the conviction on count

I was based on a non -unanimous verdict, and thus, must be vacated under Ramos v.

Louisiana, _ U.S. _, 140 S. Ct. 1390, 206 L.Ed.2d 583 ( 2020).

In the recent decision of Ramos v. Louisiana, _ U.S. at _, 140 S. Ct. at 1397,

the United States Supreme Court overruled Apodaca v. Oregon,2 406 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

The motion was filed prior to the U. S. Supreme Court' s decision in Ramos v. Louisiana, U. S. _, 140 S. Ct. 1390, 206 L.Ed.2d 583 ( 2020).

2 Oregon' s non -unanimous jury verdict provision of its state constitution was challenged in Apodaca. Johnson v. Louisiana, 406 U. S. 356, 92 S. Ct. 1620, 32 L.Ed.2d 152 ( 1972), decided with Apodaca, upheld Louisiana' s then -existing constitutional and statutory provisions allowing nine -to -three jury verdicts in criminal cases.

Ia unanimous verdict to convict a defendant of a serious offense. The Ramos Court

further indicated its ruling may require retrial of those defendants convicted of felonies by non -unanimous verdicts whose cases are still pending on direct appeal.

Ramos, _ U.S. at 140 S. Ct. at 1406. Thus, as the verdict on count I was non -

unanimous, we hereby set aside the conviction and sentence, and the case is

remanded to the trial court for further proceedings. See State v. Varnadlo, 2020-

00356 ( La. 6/ 3/ 20), 296 So. 3d 1051 ( per curiam) ("[ t]he present matter was pending

on direct review when Ramos v. Louisiana was decided, and therefore the holding of Ramos applies."); State v. Carry, 2019- 1764 ( La. App. 1st Cir. 11/ 6/ 20), 315 So.3d 912, 913.

This assignment of error has merit.

DECREE

For these reasons, we vacate the conviction and sentence of Elisa Landry on Count I and remand the matter.

CONVICTION AND SENTENCE ON COUNT I VACATED; REMANDED.