STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2020 KA 0985 G y STATE OF LOUISIANA

VERSUS

TIMOTHY PAUL PUGH

Judgment Rendered: FEB 1 9 2021

Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Suit No. 05- 16- 0672

The Honorable Bonnie Jackson, Judge Presiding xBe r dc

Hillar C. Moore, III Counsel for Plaintiff/Appellee District Attorney State of Louisiana Allison Miller Rutzen Assistant District Attorney Baton Rouge, Louisiana

Holli Herrle-Castillo Counsel for Defendant/Appellant Marrero, Louisiana Timothy Paul Pugh

BEFORE: GUIDRY, McCLENDON, AND LANIER, JJ.

LANIER, J.

The defendant, Timothy Paul Pugh, was charged by bill of information with armed robbery ( with use of a firearm), violations of La. R.S. 14: 64 and La. R.S.

14: 64. 3 ( count 1); aggravated criminal damage to property, a violation of La. R.S.

14: 55 ( count 2); and possession of a firearm by a convicted felon, a violation of La. R.S. 14: 95. 1 ( count 3). The defendant pled not guilty to all counts. Trial

commenced, the jury became deadlocked, and the trial court declared a mistrial.

At his second jury trial, the defendant was found guilty on all charges by an eleven -to -ane verdict on each count. On count 1, the defendant was sentenced to fifteen years imprisonment at hard labor without the benefit of parole, probation, or

suspension of sentence, plus the enhanced penalty of five years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, to be

served consecutive to the fifteen -year sentence. On count 2, the defendant was

sentenced to five years imprisonment at hard labor. This sentence on count 2 was

ordered to run consecutive to count 1 sentence, but concurrent to the sentence on

count 3. On count 3, the defendant was sentenced to ten years imprisonment at

hard labor without the benefit of parole, probation, or suspension of sentence. This

sentence was ordered to run concurrently with the other sentences. The defendant now appeals, designating two assignments of error. In his first assignment of error, the defendant challenges his convictions by non -unanimous jury verdicts. In his

second assignment of error, the defendant argues the trial court erred in denying his motion for new trial based on an improperly constituted jury venire.

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,' 406

I The defendant had also been charged with illegal use of weapons or dangerous instrumentalities, a violation of La. R.S. 14: 94, but prior to trial, the State dismissed this charge.

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 2 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.

Accordingly, all of the defendant's convictions and sentences are set aside, and the case is remanded for a new trial The other issue raised on appeal is rendered moot.

CONVICTIONS AND SENTENCES SET ASIDE; REMANDED FOR NEW TRIAL.

with Apodaca, upheld Louisiana's then -existing constitutional and statutory provisions allowing nine -to -three jury verdicts.

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