STATE OF LOUISIANA v. TERRY FLANAGAN (2026)

The defendant, Terry L. Flanagan, was charged by superseding grand jury indictment with second degree murder (count one), in violation of La. R.S. 14:30.1; possession of a firearm by a convicted felon (count two), in violation of La. R.S. 14:95.1; and obstruction of justice by tampering with evidence (count three), in violation of La. R.S. 14:130.1(A)(l) and (B)(1). He pled not guilty and, following a jury trial, was found guilty as charged. After denying one of his pro se motions for new trial, the trial court sentenced the defendant to concurrent terms of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on count one; twenty years imprisonment without the benefit of parole, probation, or suspension of sentence on count two; and five years imprisonment at hard labor on count three.¹ The defendant's sentence on count one was ordered to be served consecutively to his sentence in another case.

The defendant now appeals and, through counsel, designates the following assignments of error: (1) the trial court erred in denying the post-trial motions, because the evidence was insufficient to support the verdicts on all three counts; (2) the trial court erred in allowing the State to use peremptory challenges to select alternate jurors and failing to grant both the State and defense an equal number of additional peremptory challenges to select the alternate jurors; (3) the trial court imposed an excessive consecutive sentence; and (4) the trial court erred in failing to have the defendant expressly waive the sentencing delay after denying one of his pro se motions for new trial.

The defendant also filed a pro se brief asserting four additional assignments of error as follows: (1) the trial court and prosecutor knowingly presented false testimony to obtain the convictions; (2) the appellate record is incomplete, and the appellate attorney could not properly prepare an effective brief based on the incomplete record; (3) a detective planted evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (4) the trial court denied him his Sixth Amendment right to self-representation, in violation of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

For the following reasons, we vacate the sentences imposed and remand the matter for further proceedings.

FAILURE TO RULE ON MOTION FOR NEW TRIAL

Pursuant to La. Code Crim. P. art. 920(2), which limits our review to errors discoverable by mere inspection of the pleadings and proceedings without inspection of the evidence, we have discovered a sentencing error. Louisiana Code of Criminal Procedure article 853(A) mandates, in pertinent part, that a motion for a new trial must be filed and disposed of before sentence. Furthermore, La. Code Crim. P. art. 873 provides that if a motion for new trial is filed, a sentence shall not be imposed until at least twenty-four hours after the motion is overruled unless there is an explicit waiver of the delay. Our review of the record reveals the defendant filed several pro se motions prior to sentencing. The defendant filed a motion for new trial on February 15, 2023, alleging he discovered new and material evidence (“Brady motion”).² Thereafter, the defendant filed a motion for new trial on February 22, 2023, alleging he was denied his Sixth Amendment right to self-representation (“Faretta motion”).³ The record reflects, however, that the trial court did not address or rule on the defendant's Feretta motion prior to imposing sentence.

The defendant has alleged no specific prejudice arising out of the apparent failure of the trial court to rule on the Feretta motion. Nevertheless, it is preferred, and the statutory provisions require, that the trial court rule on the merits of a motion for a new trial before imposing sentence on the defendant. See State v. Batts, 2012-0406 (La. App. 1 Cir. 11/14/12), 2012 WL 5506869, *1 (unpublished). Therefore, we find the trial court erred by sentencing the defendant before ruling on the Feretta motion for new trial. See State v. Randolph, 409 So.2d 554, 554 (La. 1981) (per curiam); State v. Carter, 2013-2114 (La. App. 1 Cir. 5/2/14), 2014 WL 3843882, *2 (unpublished); State v. Cockerham, 2012-0465 (La. App. 1 Cir. 11/14/12), 111 So.3d 384, 385-386. Accordingly, we vacate the defendant's sentences and remand the case for disposition of the Feretta motion for new trial and, if necessary, resentencing. We pretermit discussion of all remaining assignments of error raised by the defendant in his appeal.

For the foregoing reasons, the defendant's sentences are vacated, and this matter is remanded to the trial court for disposition of the defendant's Feretta motion for new trial. In the event of an unfavorable ruling on the motion, and resentencing, we reserve the defendant's right to appeal his convictions and sentences.

SENTENCES VACATED; REMANDED TO TRIAL COURT FOR HEARING AND RULING ON MOTION FOR NEW TRIAL AND FURTHER PROCEEDINGS AS NECESSARY.

FOOTNOTES

1.   Due to patent error, we must vacate the defendant's sentences. However, we note the sentence imposed for possession of a firearm by a convicted felon (count two) was illegally lenient as the trial court failed to impose the sentence at hard labor and did not impose the mandatory fine. See La. R.S. 14:95.1(B).

2.   The defendant refiled his Brady motion on February 17, 2023.

3.   On the first day of trial, the defendant orally moved to have counsel of record withdrawn and to represent himself, which the trial court denied. In one of his pro se assignments of error, the defendant argues he was denied his Sixth Amendment right to self-representation.

LANIER, J.