                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                           NEWS RELEASE #028


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 12th day of May, 2017, are as follows:



PER CURIAM:

2015-K-1845       STATE OF LOUISIANA v. CHAKA STEWART (Parish of Orleans)
    C/W
2015-K-1846       Because we agree that the motions to quash were granted in error,
                  we remand to the trial court for further proceedings consistent
                  with this opinion.
                  AFFIRMED AND REMANDED.

                  JOHNSON, C.J., dissents.
                  HUGHES, J., dissents with reasons.
                  GENOVESE, J., dissents for the       reasons   assigned   by
                  Justice Hughes.
05/12/17

                      SUPREME COURT OF LOUISIANA

                                  No. 2015-K-1845

                             CONSOLIDATED WITH

                                  No. 2015-K-1846

                             STATE OF LOUISIANA

                                      VERSUS

                                CHAKA STEWART

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             FOURTH CIRCUIT, PARISH OF ORLEANS

PER CURIAM:

      We granted writs to examine the timeliness of a prosecution following

defendant’s failure to appear in court after receiving actual notice and whether the

court of appeal erroneously reversed the trial court’s ruling. The trial court granted

defendant’s motion to quash, finding the prosecution untimely. For the following

reasons, we affirm the court of appeal’s ruling, which reversed the quashal and

found the state has no affirmative duty to locate an absent defendant, and remand

these cases to the trial court for further proceedings.

                        PROCEDURAL BACKGROUND

      On June 29, 2011, defendant was charged by bill of information with one

count of possession of marijuana, second offense; one count of possession with

intent to distribute heroin; and one count of possession with intent to distribute

cocaine. On August 3, 2011, he was charged by a separate bill of information with

one count of drag racing resulting in serious bodily injury. The trial court

ultimately transferred the drag racing case so as to track the previously filed

narcotics case.

      Following his appearances for status hearings and pre-trial matters,
defendant received notice—proof of which is in the record—to appear on May 17,

2012. At some point before this date, however, defendant was arrested on federal

charges, and thus did not appear as scheduled on May 17, 2012. On that date, a

minute entry reflects that defense counsel did appear and announce that defendant

was detained in federal custody. The matter was continued, and the minute entry

also shows that the state indicated its intent to secure defendant’s presence for the

next scheduled court date.

      On July 23, 2012, the state filed a motion and order for writ of habeas corpus

ad prosequendum directed to the United States Marshal Service for the Eastern

District of Louisiana, which the trial court granted. No further action was taken on

the writ, however, and thus defendant again failed to appear. The matters were

continued several times over the course of the following year, with each minute

entry indicating again that defendant was in federal custody and that the state was

to file a writ to secure his presence.

      On July 23, 2013, one year after its first motion, the state filed a second

motion and order for writ of habeas corpus ad prosequendum—this time directed

to the specific penitentiary in Arkansas where defendant was serving a federal

sentence. Still, defendant’s absence from court persisted. After several more

continuances, the trial court issued an alias capias for defendant in February 2014;

and at a bond forfeiture hearing on April 30, 2014, counsel for the surety appeared

and advised that defendant was in federal custody in Arkansas, and provided a

certificate of incarceration. The matter was continued, and on July 25, 2014,

defendant filed a motion to quash all charges on speedy trial grounds, which the

trial court granted.

      The court of appeal reversed the quashal, because even though the state

knew that defendant was in federal custody, the two-year limitations period within
                                         2
which it had to bring him to trial was interrupted by defendant’s initial failure to

appear and did not begin to run anew until the surety filed the certificate of

defendant’s incarceration in Arkansas on April 30, 2014. Thus, the court of appeal

found that the state had two years from that date, i.e., until April 30, 2016, to bring

defendant to trial. State v. Stewart, 15-0135 (La. App. 4 Cir. 9/9/15), 176 So.3d

465; 1 State v. Stewart, 15-0136 (La. App. 4 Cir. 9/16/15).

                                          ANALYSIS

       After careful review, we find that the court of appeal reached the correct

result. We agree that when defendant failed to appear on May 17, 2012, despite

having actual notice that he was required to, the two-year period within which the

state was required to bring defendant to trial was interrupted. See La.C.Cr.P. art.

578(A)(2). We also agree that in the event of such an interruption, La.C.Cr.P. art.

579(A)(3) does not require the state to search for a defendant who has failed to

appear. State v. Romar, 07-2140 (La. 7/1/08), 985 So.2d 722. Rather, the

limitations period begins to run anew only when the state receives notice of an

incarcerated defendant’s custodial location. See, e.g., State v. Baptiste, 08-2468

(La. 6/23/10), 38 So.3d 247 (limitations period did not begin to run anew until

authorities from parish in which defendant was incarcerated contacted authorities

where charges were pending and informed them of defendant’s custodial status and

location).


1
  The court of appeal further found that La.C.Cr.P. art. 579(C), which went into effect on August
1, 2013, retroactively applied. Article 579(C) provides that when a defendant fails to appear and
is subsequently incarcerated, he must either appear in open court where the charges are pending,
or provide the state with one of two specific forms of notice of his custodial location in order for
the limitations period to begin running anew. The court found defendant failed to meet those
specific notice requirements until April 30, 2014, upon the surety’s filing of the certificate of
incarceration.

Because it found that the trial court erred in granting the motions to quash, the court of appeal
pretermitted the issue of whether the trial court also erred in conducting the hearing on the
motion without defendant’s presence in court. Stewart, 15-0135, p. 5, 176 So.3d at 468.
                                                 3
      Here, the record indicates that the state had notice of defendant’s custodial

location by July 23, 2013––when it filed its motion and order for writ of habeas

corpus ad prosequendum directed to the specific penitentiary in Arkansas where

defendant was in federal custody. Before this date, though the record suggests the

state had some indication of defendant’s general whereabouts, i.e., according to

defense counsel’s advisement, he was “in federal custody,” the state would have

had to take affirmative steps to discern defendant’s specific location.

      As we explained in Romar, the state has no affirmative duty to locate an

absent defendant. Rather, it was incumbent upon defendant to provide the state

with notice of his location to trigger commencement of a new limitations period

under La.C.Cr.P. art. 578. See Romar, 07-2140, pp. 7–8, 985 So.2d at 727 (“The

burden . . . falls not on the state to show that defendant had placed himself outside

of its control . . . but on defendant and his sureties to avoid the consequences of his

failure to appear. . . [O]ne of those consequences, since 1984, is the interruption of

the time limits placed on trial.”). Because the record does not show that the state

had notice of defendant’s custodial location before July 23, 2013, when it filed a

writ specifically directed to the Arkansas penitentiary, the trial court erred in

granting the motions to quash filed on July 25, 2014.

      Unlike the court of appeal, we find it immaterial whether the more specific

notice requirements of La.C.Cr.P. art. 579(C) were met, because Subpart C did not

go into effect until August 1, 2013, after commencement of the prosecution in this

case. Given that Subpart C imposes new substantive obligations on a defendant,

and because those obligations impact a defendant’s constitutional right to a speedy

trial, it does not apply retroactively. This is consistent with the Court’s prior

decision that La.C.Cr.P. art. 579(A)(3) could not be retroactively applied. See State

v. Groth, 85-1528 (La. 1986), 483 So.2d 596, 599; see also State v. Kraft, 86-0155
                                          4
(La. App. 5 Cir. 1987), 501 So.2d 313, 315 (“Moreover, since [La.C.Cr.P. art.

579(A)(3)] provides for an additional method for interruption of the prescriptive

period, it bears upon a defendant’s right to a speedy trial. Thus, [it] should not be

given retroactive application in light of the constitutional safeguard of the right to a

speedy trial.”). Though we maintain that the state has no duty to take affirmative

steps to locate an absent defendant, we also note that in circumstances such as

these, in which the state has become aware (whether by its own efforts or

otherwise) of an absent defendant’s location, that awareness is sufficient in a case

initiated before Subpart C’s effective date to trigger the commencement of a new

limitations period. Thus, because the record supports a finding that the state was

aware of defendant’s custodial location by July 23, 2013, the limitations period of

La.C.Cr.P. art. 578 began to run anew on that date.

      Moreover, we note that the limitations period has been suspended during the

pendency of this litigation following the trial court’s rulings on the motions to

quash. Though La.C.Cr.P. art. 580 provides that the filing of a motion to quash

suspends the limitations period only until the court has ruled on the motion,

because the parties have pursued review in the court of appeal and here, the

limitations period has been suspended pending finality of this review. La.C.Cr.P.

art. 922; see, e.g., State v. Fish, 05-1929, p. 4 (La. 4/17/06), 926 So.2d 493, 495

(“[C]ounsel’s motion to quash the prosecution on grounds of prescription then

suspended that date and continues to suspend it while the appellate courts review

the merits of the prescription issue.”); State v. Brocato, 99-1620 (La. App. 4 Cir.

9/15/99), 744 So.2d 178, 180 (“When the trial court granted relator’s first motion

to quash, the State could not try relator; and it remained unable to do so until the

reversal of the trial court’s ruling became final.”), writ denied, 99-2943 (La.

12/17/99), 751 So.2d 883. Once this ruling becomes final, the law affords the state
                                           5
one year to commence trial on the charges. See La.C.Cr.P. art. 580 (though the

balance of the new two-year period that commenced July 23, 2013 would have

been the 363 days that remained after defendant filed the motions to quash, Art.

580 endows the state with a minimum of one year to commence trial after a

suspension of the limitations period).

      Because we agree that the motions to quash were granted in error, we

remand to the trial court for further proceedings consistent with this opinion.

      AFFIRMED AND REMANDED.




                                          6
05/12/17


                  SUPREME COURT OF LOUISIANA

                              No. 2015-K-1845

                           CONSOLIDATED WITH

                              No. 2015-K-1846

                           STATE OF LOUISIANA

                                    v.

                            CHAKA STEWART

       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
          FOURTH CIRCUIT COURT, PARISH OF ORLEANS

JOHNSON, C.J., dissents.
05/12/17



                     SUPREME COURT OF LOUISIANA

                                    No. 2015-K-1845

                            CONSOLIDATED WITH

                                    No. 2015-K-1846

                            STATE OF LOUISIANA

                                       VERSUS

                               CHAKA STEWART

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             FOURTH CIRCUIT, PARISH OF ORLEANS



Hughes, J., dissenting.

      Respectfully, this case must be distinguished from State v. Romar and is

much closer to State v. Baptiste.

      A distinction should be drawn between the situation where a properly

noticed defendant voluntarily fails to appear in court (Romar) and the current

situation where it was physically impossible for the defendant to appear because he

was in federal custody. This fact was known to all and appears in the minutes of

court. The defendant even provided his attorney with an affidavit stating same so

that his attorney could continue to represent him in his absence. This is not a

situation where the state has no duty to locate a truly “absent” defendant pursuant

to Romar.




                                           1
05/12/17



                   SUPREME COURT OF LOUISIANA

                             No. 2015-K-1845

                         CONSOLIDATED WITH

                             No. 2015-K-1846

                         STATE OF LOUISIANA

                                 VERSUS

                           CHAKA STEWART

       ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
               FOURTH CIRCUIT, PARISH OF ORLEANS


GENOVESE, J., dissents for the reasons assigned by Justice Hughes.
