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. 

District Attorney

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 of the Parish of Terrebonne, State of Louisiana charged the

defendant, Chad Michael Mart, by grand jury indictment with second degree murder, 

a violation of La. R.S. 14: 30. L' He pled not guilty. After a jury trial, the jury 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' s pro se motion would be

construed as a motion for appeal and granted the defendant an appeal. LAP

subsequently filed an appeal challenging the constitutionality of the 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unpublished action).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 grand jury 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 back to the non -unanimous jury verdict

rendered on June 19, 2014. The sentencing and ruling on the oral motion to reconsider sentence

took place on July 18, 2014. The defendant' s pro se motion seeking appointment of LAP was filed

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' s pro 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 of the 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 -unanimous jury 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 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

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 appointment ofthe [ LAP] showed his intent to file an appeal." Mart, 2023 WL 2621136

at * 1. The State sought review ofthis court' s ruling by filing a writ of certiorari with the 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 of the 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 - 

unanimous jury 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 by the United States Fifth Circuit Court ofAppeals in Cockerham v. 

Cain, 283 F. 3d 657, 661- 62 ( 5th Cir. 2002), for the purpose of determining 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 -unanimous jury

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. 

M
interpreted 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 for an 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 a jury trial on the second-degree murder charge. 

As reflected in the minutes and trial transcript, the written polling ofthe jury revealed

that eleven of twelve jurors 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