STATE v. AU (2025)

Defendant, Lok C. Au, appeals his 20-year sentence for indecent behavior with a juvenile adjudicated in the 24th Judicial District Court, Division “I”. For the following reasons, we vacate Defendant's sentence and remand the matter for resentencing.

FACTS AND PROCEDURAL HISTORY

This is Defendant's third appeal in this matter.¹

On July 24, 2018, the Jefferson Parish District Attorney filed a bill of information charging Defendant, Lok C. Au, with sexual battery upon a known juvenile (DOB 6/2/2008) where the child was under the age of 13, in violation of La. R.S. 14:43.1 (count one).² On August 24, 2018, Defendant pleaded not guilty. A superseding bill was filed on September 25, 2019, adding count three, which charged Defendant with indecent behavior with a juvenile (DOB 6/2/2008), in violation of La. R.S. 14:81. Id. at 268.

On October 3, 2019, a superseding bill charged Defendant with sexual battery of a known juvenile, M.G.,³ (DOB 6/2/2008) under the age of 13, in violation of La. R.S. 14:43.1 (count one), and indecent behavior with a juvenile (DOB 6/2/2008) under the age of 13, in violation of La. R.S. 14:81 (count three). He pleaded not guilty on October 7, 2019. On February 12, 2020, Defendant was found guilty on both counts by a jury with a verdict of ten to two. Defendant was sentenced on March 9, 2020, to 35 years imprisonment on count one and to 15 years imprisonment on count three. Id. He filed a motion for appeal on March 16, 2020, which was granted on March 24, 2020.

On April 20, 2020, the Supreme Court decided Ramos v. Louisiana, 590 U.S. 83, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), and held that a unanimous verdict was required for serious crimes on all cases under direct review. On August 11, 2020, Defendant filed an unopposed motion to remand his case to the trial court for reconsideration of his motion for new trial and motion in arrest of judgment. On August 14, 2020, this Court granted Defendant's motion to remand his case to the trial court in light of the decision in Ramos, supra.

The trial court granted Defendant's motion for new trial. See Au, supra. On February 23, 2021, this Court found that because Defendant's convictions and sentences that were the subject of the appeal in 20-KA-185 were vacated and the matter was set for a new trial pursuant to the holding of Ramos, supra, this Court no longer had appellate jurisdiction and dismissed the appeal.

A second trial began on March 14, 2022, but a mistrial was declared on March 15, 2022, due to the illness of co-counsel for Defendant. Au, 378 So.3d at 269. Defendant's third trial was held from August 15 to 17, 2022. On August 17, 2022, the trial court declared a mistrial as to count one when the jury was unable to reach a verdict. As to count three, the jury unanimously found Defendant guilty as charged of indecent behavior with a juvenile under the age of 13. Id.

On September 9, 2022, Defendant filed a motion for new trial. On September 12, 2022, the State entered a nolle prosequi as to count one, and Defendant's motion for new trial was denied. On that day, Defendant was sentenced to 20 years imprisonment at hard labor as to count three. Defendant filed a motion to reconsider sentence on October 12, 2022. Defendant filed a motion for appeal and designation of record on November 3, 2022. The motion to reconsider sentence was heard and denied on December 1, 2022. Thereafter, the judge granted the motion for appeal and designation of record. Id.

On appeal, this Court found, in part, that the trial court failed to restrict benefits for any portion of the sentence. This Court explained that, because the portion of the sentence to be served without benefits is left to the discretion of the trial court, the trial court's failure to impose the statutory restrictions was not cured by La. R.S. 15:301.1. As such, this Court affirmed the conviction, pretermitted Defendant's assignments regarding sentencing, vacated the sentence on count three, and remanded the matter for resentencing. Id. at 280.⁴

On January 29, 2024, the trial court resentenced Defendant to 20 years imprisonment at hard labor with the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence. On January 31, 2024, Defendant filed a motion to reconsider sentence and a motion for appeal. The motion to reconsider sentence was denied on March 21, 2024.⁵ The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Defendant alleges the trial court erred by: 1) increasing his sentence, without cause, following his previous successful appeal; 2) imposing an excessive sentence; and 3) denying his motion to reconsider sentence.

LAW AND ANALYSIS

Errors Patent Review

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990). Upon review, the record reflects that Defendant appeared via Zoom when he was resentenced on January 29, 2024.

La. C.Cr.P. art. 835, which became effective on August 1, 2020, provides:

A. Except as provided in Paragraph B of this Article, in felony cases the defendant shall always be present when sentence is pronounced and, in misdemeanor cases, the defendant shall be present when sentence is pronounced unless excused by the court. If a sentence is improperly pronounced in the defendant's absence, he shall be resentenced when his presence is secured.

B. Nothing in this Article prohibits the court, by local rule, from providing for a defendant's appearance at the pronouncement of sentence by simultaneous audio-visual transmission in accordance with the provisions of Article 562.

La. C.Cr.P. art. 562(A) states, in pertinent part, “In a case where the offense is a noncapital felony or a misdemeanor, the defendant, who is confined in a jail, prison, or other detention facility in Louisiana, may, with the court's consent and the consent of the district attorney, appear at․sentencing by simultaneous audio-visual transmission if the court, by local rule, provides for the defendant's appearance in this manner and the defendant waives his right to be physically present at the proceeding.” La. District Court Rules, Rule 3.5 states, “Courts may authorize simultaneous appearance by a party or witness by audio-visual transmission as allowed by law and/or by order of the Louisiana Supreme Court. See Appendix 3.5 for courts enacting rules related to simultaneous appearance by a party or witness by audiovisual transmission.” Appendix 3.5 only shows a local rule for Jefferson Parish Juvenile Court, not for the 24th Judicial District Court.

La. C.Cr.P. art. 835 permits a defendant's presence by Zoom if it is done in accordance with La. C.Cr.P. art. 562, which permits such an appearance if a local rule allows it and if the defendant waives ⁶ his physical presence.⁷ After consideration of the applicable rules of law, we find that Defendant's appearance via Zoom at his resentencing was not in compliance with La. C.Cr.P. art. 562. Consequently, we also find that Defendant must be resentenced. Accordingly, we pretermit addressing Defendant's assignments of error.

DECREE

For the foregoing reasons, we vacate Defendant's sentence for indecent behavior with a juvenile (count three) and remand the matter to the trial court for resentencing.

SENTENCE VACATED; REMANDED FOR RESENTENCING

I respectfully dissent.

The majority believes that it is necessary to vacate defendant's sentence once again because the 24th Judicial District Court did not formalize and publish its local rule permitting defendant's appearance at sentencing by simultaneous audio-visual transmission. While I agree with the majority's finding that defendant's appearance via Zoom at his resentencing was not in compliance with La. C.Cr.P. art. 562, I do not believe it necessary to vacate defendant's sentence and remand in this instance.

The error is harmless. The instant case is similar to State v. Durand, 01-357 (La. App. 1 Cir. 11/9/01), 818 So.2d 73, in which the First Circuit Court of Appeal for Louisiana held that the defendant's absence from the hearing where the judgment of guilt was rendered did not require reversal because no substantial rights of the accused were affected. In reaching this conclusion, Durand reasoned:

In reviewing the record for patent error, pursuant to LSA–C.Cr.P. art. 920(2), we have discovered the record fails to reflect the defendant's presence when judgment was rendered. See LSA–C.Cr.P. art. 831A(6). Judgment was rendered in the trial court's reasons for judgment filed in the record. However, in this case, the error does not require reversal of the conviction, because no substantial rights of the accused were affected by the trial court's failure to render the judgment of conviction in the defendant's presence. See LSA–C.Cr.P. art. 921. Jury polling was not an issue, because this was a bench trial. Motions for new trial and post-verdict judgment of acquittal were timely filed by the defense. Further, prior to imposing sentence, in open court, in the presence of the defendant and his counsel, the court stated it had found the defendant guilty.

Id. at 75-76. (Emphasis added.)

It is true that Durand involved examination of whether the defendant was present at the rendition of the judgment pursuant to La. C.Cr.P. art. 831(6), while the instant case involves whether defendant was present at his sentencing pursuant to La. C.Cr.P. art. 835. In both cases though, no substantial rights of the accused were affected by the defendants’ absence from the proceeding. In Durand, prior to imposing the sentence in open court, the court stated that it had found the defendant guilty. Similarly, in this case, defendant was present via Zoom with counsel and an interpreter, so he was aware of the sentence imposed.

The purpose of requiring the defendant's presence at sentencing and of pronouncing the sentence in open court is to ensure the defendant is apprised of the punishment imposed. State v. Clemons, 53,248 (La. App. 2 Cir. 1/15/20), 289 So.3d 1165, 1170, writ denied, 20-407 (La. 7/31/20), 300 So.3d 399; State v. Davenport, 520 So.2d 463, 466 (La. App. 5th Cir. 1988). In finding harmless error, Clemons further reasoned that “[La. C.Cr.P. art.] 871 is a statutory rather than a constitutional requirement.” Id. (Emphasis in original).

In the pending case, while there was no agreement on the sentence as in Clemons, defendant did in fact attend his resentencing in this case and was represented by counsel, albeit via Zoom. Furthermore, defendant was fully apprised of the punishment imposed orally while he appeared on a monitor in open court via Zoom and the minutes properly reflect his sentence. The purpose of requiring defendant's presence at the sentencing – that defendant is apprised of the punishment imposed – has been met. This is not the more common situation where the defendant was not apprised of the sentence because the defendant was actually not present at sentencing, requiring the case to be remanded for resentencing. See e.g., State v. Fortier, 03-882 (La. App. 5 Cir. 11/25/03), 862 So.2d 170, 176–77 (Case remanded for resentencing when sentence was not pronounced orally in open court and defendant was not present when judgments setting restitution were issued); State v. Young, 2018-858 (La. App. 3 Cir. 5/15/19), 271 So.3d 422, 426 (Case remanded for resentencing when the trial court did not orally state for the record, in defendant's presence, its reasons for the sentence or the actual sentence).

Given the current common and accepted simultaneous audio-visual transmission practices post-COVID, I would find the 24th Judicial District Court's failure to formalize and publish its local rule to be harmless error. Thus, I would not remand for resentencing.

FOOTNOTES

1.   For the underlying facts, please refer to State v. Au, 23-90 (La. App. 5 Cir. 12/20/23), 378 So.3d 265.

2.   In the same bill, “K.P.” was charged in count two with cruelty to a juvenile (DOB 6/2/2008), in violation of La. R.S. 14:93.

3.   Initials were used in this Court's opinion in Au, 378 So.3d at 268, n. 1. For consistency, the same is done here.

4.   In addition to the assignments of error regarding sentencing, Defendant also asserted errors relating to expert testimony and evidence of prior false allegations of sexual abuse. This Court found that the trial court did not abuse its discretion regarding the expert testimony and that the argument regarding the denial of his motion to admit prior false allegations lacked merit.

5.   At the hearing on March 21, 2024, the trial judge stated the motion for appeal “will be granted.” The minute entry from that date reflects that the motion for appeal “was granted.”

6.   La. C.Cr.P. art. 562 does not address what constitutes a waiver of the defendant's physical presence. When Article 562 was amended in 2020, certain waiver requirements were removed.

7.   On February 19, 2025, this Court issued an order directing the trial court to explain whether a local rule for Appendix 3.5 of the La. District Court rules exists for the 24th Judicial District Court. In a February 24, 2025 per curiam, the trial court stated that there is no record of such rule being formally adopted or published.

JOHNSON, J.