### NOT FOR PUBLICATION STATE OF LOUISIANA 

### COURT OF APPEAL FIRST CIRCUIT


### NO. 2021 KA 0521
STATE OF LOUISIANA

VERSUS KYRAN JAVON VAUGHN Judgment Rendered:

On Appeal from the 22nd Judicial District Court h 

## In and forthe Parish ofSt.Tammany 

# C\ State of Louisiana

w L 

### Ct4 Trial Court No. 581744 

## DEC 3 0 2021

Honorable Raymond S. Childress,Judge Presiding

MEWS 

### Warren LeDoux Montgomery Attorneys for Appellee, 

### District Attorney State of Louisiana Matthew Caplan 

### Assistant District Attorney Covington, LA
Marcus J. Plaisance Attorneys for Defendant - Appellant, Mark D. Plaisance Kyran Javon Vaughn Prairieville, LA

BEFORE: WHIPPLE, C.J., CHUTZ, AND HESTER, JJ.HESTER, J.



## The defendant, Kyran Javon Vaughn,was charged by bill ofinformation with armed robbery with a firearm, a violation of La. R.S. 14: 64 and La. R.S. 14: 64.3, and obstruction ofjustice, a violation ofLa. R.S. 14: 130. 1. 

### Following atrial on the 

### matter, the defendant was found guilty of the responsive offense of first degree robbery, a violation of La. R.S. 14: 64. 1, and guilty as charged on obstruction of justice. 

### Both convictions were by ten - to - two verdicts. The defendant was 

### adjudicated a second -

felony habitual offender. Enhancing the first degree robbery 

## sentence, the trial court sentenced the defendant on that count to twenty years imprisonment at hard labor. For the obstruction ofjustice conviction, the trial court sentenced the defendant to ten years imprisonment at hard labor. The trial court 

### ordered the sentences to run concurrently. The defendant appealed, and this court affirmed the convictions, habitual
offender adjudications, and sentences. The defendant applied to the Louisiana 

## Supreme Court for a writ ofcertiorari, challenging his convictions and sentences. The Supreme Court granted the writ application in part by vacating the habitual 

## offender sentence and remanding for resentencing in light ofState v. Lyles, 2019- 00203 ( La. 10/22/ 19), 286 So.3d 407 ( per curiam), and otherwise denied the 

### application. See Statev.Vaughn,2018-0344 (La.App. 1stCir.9/24/18), 259 So.3d 1048, 

### writ granted in part for resentencing, otherwise denied, 2018-01750 ( La. 11/ 25/ 19), 283 So.3d 494. 

### On the enhanced twenty-year sentence, the trial court resentenced the defendant to eighteen years imprisonment at hard labor. The 

### defendant filed a motion to reconsider sentence and, following a hearing on the
matter, the motion was denied. The defendant now appeals, 

### designating two assignments of error. We vacate both convictions, the habitual offender adjudication, and the sentences.

2ASSIGNMENT OF ERROR NO. 1 In his first assignment of error, the defendant argues that since his 

### resentencing was not final at the time Ramos v. Louisiana, _ U.S. _, 140 S. Ct. 

### 13905 206 L.Ed.2d 583 (2020), was decided, his convictions and sentences must be 

### setaside since he was convicted byten - to - two verdicts. According to the defendant, 

### his case is still pending on direct review. In Ramos, _ U.S. at _, 140 S. Ct. at 1397, the United States Supreme Court abrogated Apodaca v. Oregon,' 406 U.S. 404, 92 S. Ct. 1628, 32 L.Ed.2d 184 1972), 

### and held that the right to ajury trial under the Sixth Amendment ofthe 

## United States Constitution, incorporated againstthe States byway ofthe 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 offelonies by non - unanimous verdicts 

### whose cases are still pending on direct appeal. Ramos, _ U.S. at _, 140 S.Ct. at


### In Griffith v. Kentucky, 479 U.S. 314, 321 n.6, 107 S.Ct. 708, 712 n.6, 93 L.Ed.2d 649 ( 1987), citing United States v. Johnson, 457 U.S. 537, 542 n.8, 102 S. Ct.2579, 2583 n.8, 73 L.Ed.2d 202 ( 1982), the United States Supreme Court stated 

## that a final conviction, as opposed to a criminal case still pending on direct review,
was " 

## acase in which ajudgment ofconviction has been rendered,the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for 

### certiorari finally denied." See State v. Jackson, 480 So.2d 263, 268-69 (La. 1985), overruled on other grounds, State v. Sanders, 523 So.2d 209, 211- 12 ( La. 1988)



### Oregon's non -

unanimousjury 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 - threejury verdicts. 3

### indicating that cases pending on direct review included " convictions which have

not become final upon first appellate review."). 

## Additionally, in State v. Lewis, 350 So.2d 1197 ( La. 1977) ( per curiam), Lewis was convicted and sentenced and, on appeal, the Louisiana Supreme Court affirmed his conviction, but vacated and set aside his sentence. The Supreme Court 

### remanded the case to the trial court for resentencing. After his resentencing, Lewis 

### filed an appeal. In its ruling inthe new appeal,the Supreme Court stated as follows: Defendant does have a right to appeal from the imposition ofthe new sentence. 

### However, defendant's conviction had already been affirmed and thejudgmenttherein was final fourteen days after its rendition upon 

### the failure of defendant to file an application for a rehearing. Any additional issues defendant wishes to raise in connection with his 

### conviction, including an argument relative to effective assistance of counsel, must be brought to the attention ofthe courts by application for writs of habeas corpus. Id. at 1198. ( Citations omitted.) 

### See also State v. Kelly, 2012-1197 (La.App. 1st Cir. 4/ 1/ 13), 2013 WL 1300731, * 1 n.4 ( unpublished), writ denied, 2013- 1332 ( La. 11/ 8/ 13), 

### 125 So.3d 450 (finding defendant' s conviction final when the Louisiana Supreme Court denied defendant's writ application and noting that allegations 

### related to the validity ofthe conviction should have been raised in the first appeal in which the conviction was still at issue and not on appeal ofthe resentencing). In this case, the defendant' s convictions, habitual offender adjudications, and 

### sentences were affirmed by this court on September 24, 2018. See Vaughn, 259 So.3d at 1063. 

### On October 24, 20189 the defendant timely applied to our Supreme Court for a writ of certiorari, challenging his convictions and sentences. See La. Code Crim. P. art. 922. On November 25, 2019, the Supreme Court denied the writ application with respect to the defendant' s convictions and habitual offender 

## adjudications, but remanded for resentencing in light ofLyles,268 So.3d 407.2 See
2 While notspecifically addressed in its remand language inVaughn,283 So.3d 494, itis clearthe supreme courtfound thatthe defendant had been sentenced underthe wrong provision of the Habitual Offender Lawand was entitledto resentencing underthe more ameliorative provision 

### enacted bythe November 1, 2017 amendmenttothe Habitual Offender Law,asdiscussed in Lyles. 4State v. Vaughn, 2018-01750 ( La. 11/ 25/ 19), 283 So.3d 494. The defendant' s

convictions became final fourteen days later on December 9, 2019 upon his failure 

### to file an application for rehearing. See Lewis, 350 So.2d at 1198. 

### However, only the defendant' s convictions in this matter were final prior to the Ramos decision rendered on April 20, 2020. 

## The defendant's sentences had notyet reached finality, 

## asthe defendant was not resentenced bythe trial court until August 31, 2020,which is contrasted with State v. Brown, 2019-370 (La.App. 5th Cir. 1/ 15/20), 289 So.3d 1179, writ denied, 2020-00276 ( La. 6/22/20), 297 So.3d 721, cert. denied, _ U.S. 141 S. Ct. 1396, 209 L.Ed.2d 133 ( 2021) and State v. Sewell, 53, 571 ( 

### La.App. 2nd Cir. 11/ 18/20), 307 So.3d 362. In Brown, the defendant' s conviction and sentence were affirmed on appeal in 1997. 

### After being granted a new sentencing hearing under Miller and Montgomery,3 Brown was resentenced and appealed his new sentence. The Fifth Circuit Court ofAppeal found that, although the defendantwas resentenced pursuant 

## to Miller and legitimately exercised his right to appeal that resentencing, his 

### subsequent resentencing did not allow him the opportunity to challenge his previously affirmed convictions. Brown, 289 So.3d at 1181- 82, 1187. In Sewell, the defendant' s conviction and sentence became final in 2003. However, on motion to correct an illegal sentence pursuant to the 2001 amendments to La. R.S. 15: 529. 1, La. R.S. 15: 308, and State ex rel. Esteen v. State, 2016-0949 La. 1/ 30/ 18), 239 So.3d 233 ( per curiam), Sewell was resentenced and appealed, 

### arguing thatthe non -

unanimousjury issuewas properly before the courtandthatthe matter was on direct review due to his resentence on November 13, 2019. The Second Circuit Court of Appeal, however, determined that the trial court' s



### 3 In Montgomery v. Louisiana, 577 U.S. 190, 212, 136 S.Ct.718, 736, 193 L.Ed.2d 599 2016), the United States Supreme Court held that Miller v. Alabama, 567 U.S. 460, 465, 132 S. Ct. 2455, 2460, 183 L.Ed.2d 407 ( 2012), announced a new substantive constitutional rule that was retroactive on state collateral review. 5

### reconsideration of Sewell' s life sentence in light of Esteen was limited and did not



## include reconsideration of any issues regarding his conviction. Therefore, it was 

## only Sewell' s resentencing that was pending on review when Ramos was decided, not Sewell' s conviction, which remained final. Sewell, 307 So.3d at 364-66, 368-

In the recent decision of State v. Bryant, 53, 321 ( 

### La.App. 2nd Cir.9/1/21), 326 So.3d 967 (" Bryant III"), 

### Bryant was convicted of armed robbery and 

## attempted aggravated rape by non - unanimous jury verdicts, adjudicated a third - felony habitual offender, and sentenced to life imprisonment. However, Bryant appealed, and the Second Circuit Court of Appeal vacated his habitual offender 

### adjudication and sentence and remanded the matter for resentencing. State v. Bryant, 52,743 ( 

### La. App. 2nd Cir. 6/26/19), 277 So.3d 874, writ denied, 2019- 01320 ( La. 10/8/ 19), 280 So.3d 171 (" Bryant V). On remand, Bryant was 

## adjudicated a second -

felony habitual offender and resentenced. Bryant then filed a motion to reconsider sentence, which was denied. Bryant appealed his sentences, 

## contendingtheywere unconstitutionally excessive. The Second Circuitaffirmed his sentences, and the Louisiana Supreme Court denied Bryant' s writ. State v. Bryant, 53, 321 ( 

### La. App. 2nd Cir. 3/4/20), 293 So.3d 701, writ denied, 2020-00611 ( La. 11/ 10/20), 303 So.3d 1044 (" Bryant II"). 

### The Ramos decision was handed down on April 20, 2020, prior to the 

## Louisiana Supreme Court's November 10, 2020 denial of Bryant's writ seeking review of his sentences. Thereafter, Bryant petitioned the United States Supreme Court for a writ of certiorari. 

### As later described by the Second Circuit, Bryant maintained that his case was not final when Ramos was rendered," and "[ i]n 

### response, the Caddo Parish District Attorney conceded that Bryant was entitled to a 

## newtrial because each conviction was rendered bya 10-2voteand his case remained on direct appeal when Ramos was rendered." Bryant III, 326 So.3d at 969. On
2June 28, 2021, the Supreme Court granted Bryant' s petition, vacated thejudgment,

and remanded the matter to the Second Circuit for further consideration in light of Ramos. Bryant v. Louisiana, _ U.S. _, 141 S. Ct. 2847, _ L.Ed.2d _ ( 2021). On remand from the United States Supreme Court, the Second Circuit observed that the minutes and the trial transcript showed that Bryant was convicted 

## by a non -

unanimous jury on both charges. The court then concluded, without explanation, that the " matter was still on direct review when Ramos was rendered" 

### and did not discuss the finality ofBryant's convictions. Bryant III, 326 So.3d at 969. The Second Circuit found that Bryant was entitled to a new trial and vacated 

### his armed robbery and attempted aggravated rape convictions, aswell as his habitual
offender adjudication and sentences. Id. In this case, the defendant' s sentence was not final when Ramos was handed down. In fact, the defendant was not even resentenced until August 31, 2020, more than four months after the decision in Ramos. 

## Presently, the defendant appeals to 

## this court, arguing his eighteen - year sentence as a second - felony habitual offender is excessive. While the defendant in Bryant III had been resentenced and his 

### sentences were affirmed bythe Second Circuit a month before the Ramos decision, the Louisiana Supreme Court did not deny writs until November 10, 2020. Thus, before Bryant' s sentences became final, Ramos had been handed down. 

### We note that the district attorney in Bryant III conceded that Bryant was entitled to a new trial, and we acknowledge that the district attorney in this case did not make any similar concessions; rather, the district attorney here argues that the date the defendant' s conviction, not his sentence, became final is the operative date 

### in evaluating the applicability ofRamos.' Nevertheless, based on the United States Supreme Court' s recent decision to vacate the judgment and remand the matter in



### 4 Bryant III differsfrom priorcase lawfocusing onlyonthedateadefendant'sconviction becomes final. 7

### Bryant v. Louisiana and considering the Second Circuit's subsequent decision in

Bryant III,we are constrained to find that the defendant' s case remained on direct appeal at the time Ramos was rendered. 

### Accordingly, both of the defendant' s convictions are vacated, and the defendant is entitled to a new trial on both counts. Further, the defendant' s habitual offender adjudication and sentences are vacated. ASSIGNMENT OF ERROR NO. 2 In his second counseled assignment of error, the defendant argues that his eighteen -

year sentence is excessive. However, this assignment of error is moot, as the eighteen -

year sentence has been vacated.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES VACATED; REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS.