### STATE OF LOUISIANA 

### COURT OF APPEAL FIRST CIRCUIT

2023 KA 0872 STATE OF LOUISIANA

VERSUS

JUDGMENT RENDERED: 

### Appealed from the Thirty - Second Judicial District Court Parish of Terrebonne • State of Louisiana Docket Number 625105 • Division E 

### The Honorable Randall L. Bethancourt, Presiding Judge
Christopher A. Aberle COUNSEL FOR APPELLANT Louisiana Appellate Project DEFENDANT— Chad Michael Mart Mandeville, Louisiana
Joseph L. Waitz, Jr. DistrictAttorney Joseph S. Soignet Special Prosecutor J. Christopher Erny Assistant District Attorney Houma, Louisiana COUNSEL FOR APPELLEE State of Louisiana

BEFORE: MCCLENDON, WELCH, AND ZANIER, JJ.WELCH, J.



## The Grand Jury ofthe Parish ofTerrebonne, State of Louisiana charged the 

## defendant,Chad Michael Mart,bygrandjury indictmentwith second degree murder, aviolation ofLa. R.S. 14:30.L' He pled not guilty. After ajury trial,thejury found 

## the defendant guilty as charged by a non - unanimous verdict of 11 -to -1. The trial 

### court denied the defendant' s motions for new trial and post - verdict judgment of acquittal and sentenced the defendant to life imprisonment at hard labor without the 

### benefit of probation, parole, or suspension of sentence. The trial court denied the defendant' s oral motion to reconsider sentence. 

### Subsequently, the defendant filed a pro se motion captioned, " Motion In Proper Person to Appoint the Louisiana Appellate Project," in which he stated his intention to appeal his conviction and sentence. The trial court signed the order 

### attached to defendant' s pro se motion, appointing the Louisiana Appellate Project LAP") to represent the defendant in the appeal ofhis conviction and sentence. The 

### trial court later signed an order' noting that the defendant'spro se motion would be construed as a motion for appeal and granted the defendant an appeal. LAP 

### subsequently filed an appeal challenging the constitutionality ofthe non - unanimous
verdict, but this court vacated the trial court' s order granting the appeal and remanded the case to the trial court with instructions to reconsider whether the 

### defendant should be granted an out - of - time appeal after affording the State an opportunity to respond. State v. Mart, 2021- 0633 ( La. 

### App. 1 Cir. 7/6/21)
unpublished action). 

### On remand, after allowing the parties the opportunity to file i The grandjury indictment read: " Chad M[.] Mart, on or about October 2, 2011, while attempting to commit an Armed Robbery, committed second degree murder[.]" 

### 2 The instant case has a lengthy procedural history, dating backto the non - unanimousjury verdict rendered on June 19, 2014. The sentencing and ruling on the oral motion to reconsider sentence 

### tookplace on July 18, 2014. The defendant' spro se motion seeking appointment ofLAP wasfiled on September 15, 2014. The trial court signed the order two days later on September 17, 2014. 

### The trial court's order construing the defendant' spro se motion as a motion for appeal was signed several years later, on December 18, 2020, after the trial court was informed that LAP had been unaware ofthe initial appointment in 2014 and had not filed the defendant' s appeal in this case.
2

## memoranda and holding a hearing,the trial court denied the defendant's request for

reinstatement ofhis appellate rights.The defendant sought supervisory review.This court granted the defendant' s writ application, reversed the trial court' s ruling, and 

### remanded the case to the trial court with instructions to enter an order for appeal. State v. Mart, 2022- 1267 ( La. 

### App. 1 Cir. 3/ 24/23), 2023 WL 2621136
unpublished), writ denied, 2023-00585 ( La. 4/23/24), 

### 383 So.3d 610.3 

## The defendant now appeals, assigning error to the constitutionality of his conviction by a non -

unanimousjury verdict. For the following reasons, we vacate the defendant' s conviction and sentence and remand to the trial court. NON - UNANIMOUS JURY VERDICT 

### In the sole assignment of error, the defendant points out that the verdict was 

### not unanimous Citing Ramos v. Louisiana, 590 U.S. 83, 140 S. Ct. 1390, 206 L.Ed.2d 583 ( 2020), the defendant contends that the non - unanimous verdict violates 

### his rights under the Sixth and Fourteenth Amendments to the United States Constitution and is reviewable as a patent error.4 In Ramos, 590 U.S. at 83, 140 S.Ct. at 1391, the United States Supreme Court 

## held that the right to ajury trial under the Sixth Amendment ofthe United States Constitution, incorporated against the States by way ofthe Fourteenth Amendment of the United States Constitution, requires a unanimous verdict to convict a 

### 3 In reversing the trial court's ruling on remand, this court noted that "[ a] lthough not in proper 

### form and untimely for purposes of a direct appeal, [ defendant' s] September 2014 pro se motion 

### requesting appointmentofthe [LAP] showed his intenttofile anappeal." Mart, 2023 WL 2621136 

### at * 1. The State sought reviewofthis court's ruling byfiling awrit ofcertiorari withthe Louisiana Supreme Court. On April 23, 2024, while the instant appeal was pending, the Louisiana Supreme Court denied the defendant' s writ application. State v. Mart,2023-00585 (La.4/23/24), 383 So. 3d 610. 4 The record reveals that the defendant did not contemporaneously object to or challenge the 

### constitutionality ofthe verdict in the trial court. See La. C.Cr.P. art. 841(A) ("An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence."). 

### However, as the defendant correctly notes, the Louisiana Supreme Court held that a non - 

### unanimousjury verdict is an error patent that an appellate court can properly consider pursuant to La. C.Cr.P. art. 920(2), 

### even absent the issue being preserved below. See State v. Curry, 2019- 01723 ( La. 6/3/ 20), 296 So.3d 1030 (per curiam). See also State v. Keys, 328 So.2d 154, 157 ( La. 1976); State v. Anderson, 2017-0927 ( La. App. 1 Cir. 4/6/18), 248 So.3d 415, 418- 19, writ denied, 2018-0738 ( La. 3/ 6/ 19), 266 So.3d 901.
3

### defendant of a serious offense. The Ramos Court overruled Apodaca v. Oregon,'

406 U.S. 404, 92 S. Ct. 1628, 32 L.Ed.2d 184 ( 1972). Ramos, 590 U.S. at 93, 140 S. Ct. at 1397. 

### 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, 590 U.S. at 108, 140 S. Ct. at 1406. See also Schriro v. Summerlin, 542 U.S. 348, 351, 

### 124 S. Ct. 25199 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, 203 ( per curiam). Thus, where the defendant' s conviction was not final when Ramos was 

### decided, the holding of Ramos applies. State v. Bueso, 2019-01675 ( La. 6/22/20), 297 So.3d 719 (per curiam) (

### citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L.Ed.2d 649 ( 1987)); State v. Jones, 2020- 0451 ( 

### La. App. 1st Cir. 12/2/20), 2020 WL 7137112, * 3 ( unpublished). 

### As held bythe United States Fifth Circuit Court ofAppeals in Cockerham v. Cain, 283 F. 3d 657, 661- 62 (5th Cir. 2002), 

### forthe purpose ofdetermining whether 

### the defendant may avail himself of a particular rule in challenging his conviction, under Louisiana law, the defendant' s conviction is not considered final until after 

### his out - of - time appeal is resolved. As observed by the Cockerham court, in State
v. Counterman, 475 So.2d 336, 338-40 ( La. 1985), the Louisiana Supreme Court characterized an out - of - time appeal as a " reinstatement of [ the defendant' s] right to
appeal." 

### Cockerham, 283 F.3d at 661. Compelled by State v. Boyd, 503 So.2d 747, 

### 750 ( La.App. 3d Cir. 1987), in which the Louisiana Third Circuit Court of Appeal

5 In Apodaca, the petitioners—found guilty of committing felonies by less - than - unanimousjury verdicts, which was permitted under Oregon law in non - capital cases at that time— challenged the non - unanimous jury verdict provision of the Oregon state constitution. The case 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. Minterpreted Counterman, the Cockerham court further observed an out - of - time 

### appeal should be treated as rendering the conviction "non - final" until resolution of the out -

of - time appeal, so as to entitle the defendant to the benefit ofrules established before the out -

of - time appeal was resolved. Cockerham, 283 F.3d at 661. 

### As this court previously held, the defendant' s September 15, 2014 pro se 

### motion seeking appointment ofthe LAP was essentially a request foran out - of - time appeal that was never adjudicated. Mart, 2023 WL 2621136 at * 1. Thus, the 

### defendant' s case was still pending on direct review when Ramos was decided. 

### Therefore, we are bound to apply Ramos to the defendant' s pending appeal. See Ramos, 590 U.S. at 108, 140 S.Ct. at 1406; State v. Francis, 2019- 1392 (La.App. 1 Cir. 12/ 17/20), 318 So. 3d 862, 877. 

### The defendant proceeded to ajury trial on the second-degree murder charge. 

### As reflected inthe minutes andtrial transcript,thewritten polling ofthejury revealed that eleven oftwelvejurors concurred in the guilty verdict in this case. Pursuant to Ramos, 

### the non -

unanimous jury verdict in this case is unconstitutional and constitutes patent error on the face of the record. 

### Accordingly, we vacate the defendant' s conviction and sentence and remand this case for a new trial.

CONVICTION AND SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.

F