STATE OF LOUISIANA v. JOE WHEELER POTTER (2026)

NOTICE OF JUDGMENT AND CERTIFICATE OF MAILING

NOTICE IS HEREBY GIVEN that the attached judgment and written opinion was rendered this date and a copy was mailed to the trial judge, all counsel of record and all parties not represented by counsel as listed above.

FOR THE COURT

Renée R. Simien Clerk of Court

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

26-215

STATE OF LOUISIANA

VERSUS

JOE WHEELER POTTER

Judgment rendered and mailed to all parties or counsel on November 12, 2026. Applications for rehearing may be filed within the delays allowed by La. Code Civ. P. art. 2166 or La. Code Crim. P. art. 922.

APPEAL FROM THE SIXTEENTH JUDICIAL COURT PARISH OF ST. MARTIN, NUMBER 21-257799 HONORABLE KEITH R. J. COMEAUX, JUDGE

LEDRICKA J. THIERRY JUDGE

Court composed of Elizabeth Pickett, Charles G. Fitzgerald, and Ledricka J. Thierry, Judges.

EHP

CGF

LJT

CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED FOR RESENTENCING.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

26-215

STATE OF LOUISIANA

VERSUS

JOE WHEELER POTTER

APPEAL FROM THE SIXTEENTH JUDICIAL COURT PARISH OF ST. MARTIN, NUMBER 21-257799 HONORABLE KEITH R. J. COMEAUX, JUDGE

LEDRICKA J. THIERRY JUDGE

Court composed of Elizabeth Pickett, Charles G. Fitzgerald, and Ledricka J. Thierry, Judges.

CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED FOR RESENTENCING.

M. Michael Haik, III, District Attorney W. Claire Howington, Assistant District Attorney 16th Judicial District Attorney's Office 300 Iberia Street New Iberia, LA 70560 (337) 369-4420 COUNSEL FOR APPELLEE: State of Louisiana

Corrie Gallien Remy Voisin Starns Louisiana Appeals and Writ Service (LAWS) 301 Main Street Baton Rouge, LA 70825 (225) 219-9305 COUNSEL FOR DEFENDANT/APPELLANT Joe Wheeler Potter

THIERRY, Judge.

In this appeal, Defendant, Joe Wheeler Potter, asserts his sentences are excessive. Finding the sentences imposed on Defendant on the convictions of aggravated crime against nature and two counts of molestation of a juvenile were indeterminate, we vacate his sentences and remand for resentencing.

FACTS AND PROCEDURAL HISTORY

It was alleged that Defendant sexually abused the victim A.B. “on a rather frequent basis” up until she was eleven years old, and then occasionally when she was a teenager.¹ Defendant was the stepfather of the victim, A.B.’s mother. At the time the molestation began, Defendant and A.B.’s maternal grandmother had divorced, but Defendant remained in their lives and A.B.’s family spent a lot of time at Defendant's home in Parks, Louisiana.

A.B. eventually testified at trial that her earliest memory of the assaults was Defendant orally raping her shortly after Hurricane Katrina, when she was approximately six years old. A.B. testified there were many incidents where she was forced to give Defendant oral sex. She recalled that there was a hotel that Defendant liked to stay where he would make her watch pornography and force her to perform oral sex on him. She stated it occurred so frequently “that it just blends in together because of how often it was.”

A.B. testified that when she reached puberty, she tried to avoid going to Defendant's house if possible. However, this did not end everything, as she recalled one time when she was sixteen, Defendant came to her house, fondled her breasts, and told her “how much he wanted her” when her mother stepped outside for a while. She stated that it even continued after she became an adult, and he would try to grope and fondle her buttocks and between her legs.

A.B. testified her maternal grandmother asked her if Defendant was abusing her because she had heard a rumor that she was “being touched.” A.B. stated she denied it at that time because she did not “want to deal with the backlash of whatever was going to happen.” She testified when she was around six-years-old Defendant told her she should not tell anyone what was happening “between us” because they both would get in trouble.

When A.B. was approximately thirteen-years-old, she told her brother, C.B., and younger sister about the abuse. They both confirmed this at trial. Her brother testified at trial he witnessed an act of abuse when he was five or six. C.B. stated he walked into Defendant's room and saw A.B. on the bed and Defendant with “his pants slightly undressed and no shirt.” C.B. said Defendant immediately walked him out the room and told him not to “tell anyone.” A.B.’s sister stated she did not tell anyone about the abuse because she was scared that something bad might happen if anyone found out.

Eventually, A.B. told her father of the abuse when she was twenty-three. He called law enforcement shortly thereafter and confronted Defendant. He said Defendant denied it but that it really stuck out to him the number of times Defendant “sat there and told me that she misremembers it.”

On February 8, 2024, Defendant was charged by bill of information with the following:

Count 1: Aggravated crime against nature, a violation of La.R.S. 14:89.1(A)(2)(a).

Count 2: Molestation of a juvenile, victim under the age of thirteen, a violation of La.R.S. 14:81.2(A) & (D)(1).

Count 3: Molestation of a juvenile, recurring during a period of more than one year, a violation of La.R.S. 14:81.2(A) & (C).

Count 4: Sexual battery (misdemeanor), a violation of La.R.S. 14:43.1.1.

Count 5: Sexual battery (misdemeanor), a violation of La.R.S. 14:43.1.1.

On April 25, 2024, Defendant filed a written Waiver of Trial By Jury, signed by both Defendant and his counsel. The trial court signed an order waiving Defendant's right to jury trial and ordering a bench trial. Thereafter, on December 18, 2024, Defendant was tried on the merits and found guilty of all counts.

On January 6, 2025, the trial court denied Defendant's Motion for New Trial and Motion for Post-Verdict Judgment of Acquittal, and Defendant waived the twenty-four hour delay for sentencing. The trial court imposed the following sentences:

Count 1 (aggravated crime against nature): ten years at hard labor.

Count 2 (molestation of a juvenile under the age of 13): fifteen years at hard labor.

Count 3 (molestation of a juvenile recurring during a period of more than one year): five years at hard labor.

Counts 4 & 5 (sexual battery): six months on each.

The trial court ordered all sentences to run concurrently with each other. The trial court also considered State v. Dorthey, 623 So.2d 1276 (La.1993), and decided that because of Defendant's age and health, it would impose a sentence that can be paroled.

On January 10, 2025, Defendant filed a motion for appeal, which was granted on January 14, 2025. Defendant's sole assignment of error alleges the sentences imposed are excessive. For the reasons that will be discussed, we find the sentences imposed for counts one, two, and three should be vacated as indeterminate, and the case should be remanded for resentencing on those counts. We further find that Defendant's excessive sentence claims as to all counts, including the misdemeanor sentences (counts four and five) should be pretermitted.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are three errors patent concerning the bill of information; an error patent requiring the sentences for counts one, two, and three to be vacated; an error patent as to the advisement of the time period for filing post-conviction relief; and a procedural issue. We will first address the errors patent concerning the bill of information and the procedural issue.

First, there is a misjoinder in the bill of information. In the same bill of information, Defendant was charged with two misdemeanors not triable by jury (two counts of misdemeanor sexual battery) and three felonies triable by jury (aggravated crime against nature and two counts of molestation of a juvenile). La.Code Crim.P. arts. 782 and 779. Thus, the offenses were not triable by the same mode of trial and should not have been charged in the same bill of information. La.Code Crim.P. art. 493. However, because Defendant failed to file a motion to quash the bill of information based on the misjoinder, he waived any objection to the error. La.Code Crim.P. art. 495; State v. Mallett, 357 So.2d 1105 (La. 1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 848 (1979); State v. Anderson, 08-962 (La.App. 3 Cir. 2/4/09), 2 So.3d 622, writ denied, 09-518 (La. 11/20/09), 25 So.3d 786. Moreover, the parties discussed the misjoinder prior to trial. The State noted that Defendant waived his right to a jury trial and elected to have his case tried by a judge. Although the State offered to file a new bill for the misdemeanor charges, defense counsel stated he did not think it was necessary since all charges were triable by the same mode of trial (bench trial) in this case. Defense counsel stated that Defendant had no objection to the accumulation of charges and wanted all charges tried by the trial judge that day. Thus, the misjoinder was clearly waived in this case.

In conjunction with the misjoinder, there is a procedural issue as to the proper mode of review for the misdemeanor sexual battery convictions. Because these charges were not triable by a jury, the proper mode of appellate review is typically by writ rather than appeal. See La.Code Crim.P. art. 912.1. In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La. 12/12/05), 917 So.2d 1084, this court severed a misdemeanor conviction for possession of marijuana from the defendant's appeal of two felony convictions. This court ordered the “defendant to file a writ of review regarding the possession of marijuana conviction in compliance with the Rules of Court.” Id. at 289. In Turner, the defendant did not make any specific arguments regarding the misdemeanor conviction. In the present case, however, Defendant requests his total sentence of fifteen years be vacated for excessiveness. We note the trial court ordered the sentences to run concurrently. Thus, the sentences are intertwined with one another. Accordingly, this court will not sever the misdemeanor convictions but will, in the interest of judicial economy, address the misdemeanor and felony convictions in the same appeal. See State v. Vidrine, 19-210 (La.App. 3 Cir. 10/2/19), 280 So.3d 664; State v. Fuslier, 06-1438 (La.App. 3 Cir. 4/4/07), 954 So.2d 866; State v. Runnels, 12-167 (La.App. 3 Cir. 11/7/12), 101 So.3d 1046, writ denied, 13-498 (La. 7/31/13), 118 So.3d 1121.

Second, we find the bill of information contains errors in the statutory citation for counts one and two. For count one, Defendant was charged with committing aggravated crime against nature from January 1, 2000 to March 1, 2003, in violation of La.R.S. 14:89.1(A)(2)(a). “[I]t is generally settled that the law in effect at the time of the commission of the offense is determinative of the penalty which is to be imposed upon the convicted accused.” State v. Parker, 03-924, pp. 9–10 (La. 4/14/04), 871 So.2d 317, 322. During the dates for which Defendant is charged for count one, section (A)(2) did not have any subsections.² Thus, the statutory citation for count one was erroneous.

For count two, Defendant was charged with molestation of a juvenile under the age of thirteen, in violation of La.R.S. 14:81.2(A) & (D)(1). During the time period charged (March 2, 2003 to August 18, 2009), however, section (D)(1) provided for the penalty when the incidents of molestation recur during a period of more than one year.³ In 2006, the legislature added section (E)(1) to provide for the penalty when the victim of molestation is under the age of thirteen. 2006 La. Acts No. 325, § 2. Subsequently, in 2011, section (E)(1) was renumbered (D)(1), which may explain the erroneous citation in the bill. 2011 La. Acts No. 67, § 1. Nonetheless, for the period charged in this count, (D)(1) was cited in error. The trial court did recognize the citation error at sentencing, and refused to apply (E)(1) (the under thirteen provision) since it required a sentence of twenty-five to ninety-nine years. Instead, the trial court considered the penalty provision in the 2009 version of La.R.S. 14:81.2(D)(1), which was five to forty years, and imposed a sentence of fifteen years at hard labor.

The erroneous citation of a statute in the charging instrument is harmless error if the error does not mislead Defendant to his prejudice. La.Code Crim.P. art. 464. Defendant has not alleged any prejudice because of the erroneous citation; thus, we find the error is harmless.

Next, we find the sentences imposed on the felony convictions for counts one, two, and three are indeterminate. When sentencing Defendant, the trial judge stated:

[I]n Count 1, docket - - Docket Number 21-257799, Joe Potter - - Joe Wheeler Potter, I should say - - on the crime of aggravated crime against nature, I sentence the defendant to 10 years at hard labor.

On the Count 2, the crime of molestation of a juvenile with a victim under the age of 13 - - although the statute numbers are incorrectly numbered - - the Court will give the defendant the benefit of the doubt because the statute numbers are incorrectly numbered - - the Court will consider a sentence under the 2009 statute of 5 to 40 years. The Court will not consider the 25 to 99 years. And based on this sentence, the Court finds that an appropriate sentence is a sentence of 15 years at hard labor.

Additionally, on Docket Number [sic] 1481.2(A) and (C), Count 3, the Court will sentence Mr. Wheller [sic] - - Joe Wheeler Potter - - to five years at hard labor.

On Count 4, sexual battery - - each Count 4 and Five - - this occurred by the touching of the breasts or buttocks above the clothing of the victim, I'll sentence him to six months on each.

All of these sentences have to run concurrently with each other. The Court has considered the case of State versus Dorthey in this particular matter and finds one sentencing provision would be applicable - - would be inapplicable in this particular case.

As the Court [s]tated, as Mr. Piccione correctly stated, Mr. Potter is an old man who is basically suffering from many diseases. At some point in time, he may be incapable of understanding what is happening. Based on that, the Court will impose a sentence that can be paroled - - is not without benefit of probation, parole, or suspension of sentence. The Court will leave that decision up to the parole board should he come up for parole. The parole board can consider parole, even though the statute provides that a certain mandatory minimums are without, the Court finds that in this particular case, based on State v. Dorthey and this particular defendant, that parole may be something that he can be paroled to a nursing facility or some other type of facility, but that will be up to the parole board, and certainly the victims would have an input in that consideration.

(emphasis added).

Although the trial court imposed multiple sentences, it stated that it would impose “a sentence” that can be paroled, without specifying which sentence. Since the sentences imposed on the misdemeanor convictions (counts four and five) did not allow for a restriction of parole, it is reasonable to assume the trial court was not referring to those counts. As will be discussed below, however, the penalty provisions for counts one, two, and three, all required at least a portion, if not all, of the sentences to be served without benefit of parole. Thus, the trial court's statement that it would allow parole eligibility on a “sentence” renders the sentences imposed on counts one, two, and three indeterminate.

The penalty provision for count one (aggravated crime against nature) required the entire sentence to be imposed without benefit of parole. La.R.S. 14:89.1(B) (2000–2003).

Determining the applicable penalty provision for count two (molestation of a juvenile under the age of thirteen) is difficult due to the bill of information's citation error and the trial court's decision to “give the defendant the benefit of the doubt” and not apply the twenty-five to ninety-nine year sentencing range. Count two charged Defendant with committing molestation of a juvenile under the age of thirteen. During the time period charged for count two (March 2, 2003 to August 18, 2009), the penalty provisions for molestation of a juvenile were amended. At the beginning of the time period, there was no penalty provision for a victim under the age of thirteen. In 2006, the legislature added section (E)(1) to punish a defendant convicted of molesting a victim under the age of thirteen to a hard labor sentence of twenty-five years to life, with at least twenty-five years to be served without benefit of parole. La.R.S. 14:81.2(E)(1) (2006). In 2009, (E)(1) was amended to a hard labor sentence of twenty-five years to ninety-nine years, with at least twenty-five years to be served without benefit of parole. La.R.S. 14:81.2(E)(1) (2009) . Because the bill cited section (D)(1) instead of (E)(1), the trial court chose not to apply the penalty range in (E)(1). Instead, the trial court applied the penalty provision set for in section (D)(1) in 2009—five to forty years, with or without hard labor. La.R.S. 14:82.1(D)(1) (2009). That penalty provision required at least five years to be served without benefit of parole. Thus, under any of the above penalty provisions, a portion of the sentence imposed for count two was required to be served without benefit of parole.

Count three charged Defendant with molestation of a juvenile when the incidents of molestation recurred during a period of more than one year. Instead of citing La.R.S. 14:82.1(D)(1) as discussed above, the bill cited section (C). During the time period charged in count three (August 19, 2009 to August 18, 2013), the provision punishing molestation that recurred during a period of more than one year changed from (D)(1) in 2009 to (C) in 2011, with the penalty remaining the same—five to forty years with or without hard labor, at least five years without benefit of parole. La.R.S. 14:81.2(C). Thus, like in count two, a portion of the sentence imposed for count three was required to be served without benefit of parole.

As noted above, each of the sentences imposed for counts one, two, and three require at least a portion of the sentence to be served without benefit of parole. Thus, the trial court's statement that it would impose “a sentence” that can be paroled renders the sentences for counts one, two, and three indeterminate.

A similar issue was before this court in State v. Verret, 08-1335 (La.App. 3 Cir. 5/6/09), 9 So.3d 1112. For each of four counts of negligent homicide, the defendant was sentenced to five years to run concurrently. The court then stated it was “ordering that [the defendant] serve four years of this sentence and that one year of the sentence be suspended.” Id. at 1113. The defendant was placed on probation for four years. In addressing the sentencing error, this court stated:

The trial court unequivocally imposed a five-year sentence on each count to run concurrently. When it ordered suspension of one year and discussed the terms and length of probation, however, the trial court only referred to one sentence. Insofar as the trial court failed to specify to what counts the suspension and probationary period applied, the trial court imposed indeterminate sentences.

Id.

This court addressed a similar issue in State v. Morris, 05-725, p. 9 (La.App. 3 Cir. 12/30/05), 918 So.2d 1107, 1113, wherein it found that “[t]he trial court imposed indeterminate sentences because it suspended the sentences and placed Defendant on five years of supervised probation without specifying to which count or counts the probation applied.” In Morris, 918 So.2d 1107, the court quoted from State v. Taylor, 01-680, p. 2 (La.App. 3 Cir. 11/14/01), 801 So.2d 549, 550:

After suspending five years of the defendant's eight-year sentence and the totality of the six-year sentence, the trial court imposed a five-year supervised probation period. It is unclear, however, to which sentence this probation period applies or whether it applies to each. Thus, the sentences are indeterminate and in violation of La.Code Crim.P. art. 879, which provides: “If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.”

Finding the defendant's sentences indeterminate, we vacate the sentences and remand this matter to the trial court for the imposition of determinate sentences. In doing so, we instruct the trial court to specify whether the periods of probation are to be served concurrently or consecutively and upon what point the probated sentences begin as to each count. See La.Code Crim.P. art. 883.

Accordingly, we vacate the sentences on the grounds they are indeterminate and remand the case for resentencing. Upon remand, if any periods of probation or suspension are imposed, the trial court is instructed to specify to which count(s) they apply.

Verret, 9 So.3d at 1113–14 (alterations in original).

Likewise, we find the sentences imposed in the present case for counts one, two, and three are indeterminate; thus, they must be vacated and the case remanded for resentencing. The trial court is instructed to specify on which sentence or sentences parole is being allowed under Dorthey, 623 So.2d 676.

Finally, the trial court gave Defendant inaccurate advice as to the time period for filing post-conviction relief. The trial court stated that Defendant had “two years within which to file for post-conviction relief.” Louisiana Code of Criminal Procedure Article 930.8 states, “No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922.” (emphasis added). Thus, the Article 930.8 advice given by the trial court in the present case was inaccurate. Consequently, Defendant must be accurately informed of the time period for filing post-conviction relief.

This court has stated the following when incorrect Article 930.8 advice was given and the case had to be remanded for resentencing:

Recently, a majority of this court's judges have chosen to allow the opinion to serve as notice of the time limitation for filing an application for post-conviction relief. See, e.g., State v. Mason, 24-407 (La.App. 3 Cir. 2/5/25), 407 So.3d 822, writ denied, 25-270 (La. 4/29/25), 407 So.3d 620; State v. Washington, 24-308 (La.App. 3 Cir. 2/12/25), 406 So.3d 579. However, since this case must be remanded for resentencing because of the indeterminate sentence discussed above, the notice about post-conviction relief should be given by the trial court at resentencing. The pertinent sentence for purposes of Article 930.8’s time will be the sentence imposed at resentencing. Furthermore, Article 930.8 requires the notice to be given at sentencing. See State v. Skipper, 24-502 (La.App. 1 Cir. 3/26/25), 408 So.3d 593; State v. McElveen, 23-939 (La.App. 1 Cir. 12/30/24), 406 So.3d 429; State v. Sturdivant, 23-1193 (La.App. 1 Cir. 9/26/24), 405 So.3d 756 (all cases where the trial court was ordered to give the Article 930.8 advisement at resentencing).

State v. Green, 25-140, p. 5 (La.App. 3 Cir. 10/8/25), 421 So.3d 621, 625.

Likewise, we instruct the trial court that at resentencing it must advise Defendant of the correct time period for filing post-conviction relief as set forth in La.Code Crim.P. art. 930.8.

ASSIGNMENT OF ERROR

In his sole assignment of error, Defendant claims the sentences are excessive. However, because we vacate the sentence and remand for resentencing, this assignment of error is pretermitted.

DECREE

Defendant's convictions are affirmed. However, the sentences imposed for counts one, two, and three (aggravated crime against nature and two counts of molestation of a juvenile), are vacated as indeterminate and remanded for resentencing. The trial court is instructed to specify on which sentence or sentences parole eligibility is being allowed. The trial court is also instructed that, at resentencing, it must advise Defendant of the correct time period for filing post-conviction relief in accordance with La.Code Crim.P. art. 930.8.

CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED FOR RESENTENCING.

FOOTNOTES

1.   The initials of the minor victims are used to protect their identity as per La.R.S. 46:1844(W)(1)(b).

2.   Subsection (A)(2)(a) of La.R.S. 14:89.1 was added by 2014 La. Acts No. 602, § 4.

3.   The “recurrence of the incidents of molestation during a period of one year or more” is the basis of the molestation of a juvenile charge in count three.