NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 KA 0975

STATE OF LOUISIANA

VERSUS

KARL JUSTIN NIXON

Judgment Rendered: SUN 0 4 2021

On Appeal from the Thirty -Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana Docket No. 765, 020

Honorable David W. Arceneaux, Judge Presiding

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

Cynthia K. Meyer Counsel for Defendant/ Appellant Louisiana Appellate Project Karl Justin Nixon New Orleans, LA

Karl Justin Nixon Defendant/ Appellant Louisiana State Prison In Proper Person Angola, LA

BEFORE: GUIDRY, McCLENDON, AND LANIER, JJ.

McCLENDON, 7.

Defendant, Karl Justin Nixon, was charged by bill of information with attempted second degree murder, a violation of LSA- R. S. 14: 30. 1 and LSA- R. S.

14: 27. Defendant entered a plea of not guilty and, following a jury trial, was found guilty by a ten -to -two verdict of the responsive offense of attempted

manslaughter, a violation of LSA- R. S. 14: 31 and LSA- R. S. 14: 27. The State filed

a habitual offender bill of information.' At a hearing on the matter, defendant was adjudicated a fourth -or -subsequent felony habitual offender and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of

sentence. Defendant now appeals, designating one counseled assignment of error.2 We set aside defendant's conviction, habitual offender adjudication, and sentence. We remand for a new trial.

In his sole assignment of error, defendant argues that the district court

erred in accepting a ten -to -two non -unanimous jury verdict.3 He asserts his verdict is invalid because a unanimous verdict is required under the Sixth and Fourteenth Amendments of the United States Constitution.

In Ramos v. Louisiana, _ U. S. _, _, 140 S. Ct. 1390, 1397, 206 L. Ed. 2d 583 ( 2020), the United States Supreme Court overruled Apodaca v. Oregon, 4

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,

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. 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 non -unanimous verdicts whose cases are still pending on direct appeal. Ramos, _ U. S. at _, 140 S. Ct. at 1406.

Accordingly, we set aside defendant' s conviction, habitual offender

adjudication, and sentence, and remand the case for a new trial.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE SET ASIDE; REMANDED FOR NEW TRIAL.