SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT FOR THE
PARISH OF ORLEANS
granted in part. In 2003, relator was indicted for the second
degree murder of Larry Lawrence. In 2010, an Orleans Parish
jury found relator guilty of manslaughter. Before this
verdict, relator was tried twice for the crime and each trial
ended in a mistrial. The district court sentenced him to 25
years imprisonment at hard labor without observing the
24-hour sentencing delay required by La.C.Cr.P. art. 893. The
court of appeal affirmed the conviction and sentence.
State v. Francis, 11-1082 (La.App. 4 Cir.
11/7/12) (unpub'd), writ denied, 12-2575 (La.
5/3/13), 113 So.3d 209. As an error patent, the court of
appeal noted that the district court failed to observe the
24-hour sentencing delay but found that the error was
harmless because relator did not challenge the sentence on
appeal. One member of the panel dissented from that
The evidence at trial strongly suggests that a delay in
sentencing would have allowed Mr. Francis the time necessary
to furnish even more mitigating evidence to the sentencing
judge. And the hastily imposed twenty-five year sentence does
not seem to reflect a well-considered judgment about the
characteristics of both the offender and the offense.
Francis, 11-1082, p. 10 (Bonin, J., concurring in
part and dissenting in part).
1, 2014, relator filed an application for post-conviction
relief in the district court in which he claimed he received
ineffective assistance of trial and appellate counsel and
that he is actually innocent of the crime, which the district
court summarily denied. Under the circumstances presented
here, the district court erred to the extent it rejected
relator's claims of ineffective assistance of appellate
counsel without conducting an evidentiary hearing.
appeal, counsel assigned three errors. Notably absent from
them was a claim that the evidence was insufficient to
support the conviction when viewed under the due process
standard of Jackson v. Virginia, 443 U.S. 307, 319,
99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Although relator
does not have the right to designate the issues counsel must
raise on appeal, Jones v. Barnes, 463 U.S. 745,
751-53, 103 S.Ct. 3038, 3312-13, 77 L.Ed.2d 987 (1983),
relator is entitled to relief if he shows both that counsel
erred by "ignor[ing] issues . . . clearly stronger than
those presented, " Smith v. Robins, 528 U.S.
259, 288, 120 S.Ct. 746, 765, 145 L.Ed.2d 756 (2000)
(citation and internal quotation marks omitted), and there
was a "reasonable probability" that he would have
prevailed on the claim on appeal, Mayo v. Henderson,
13 F.3d 528, 533-34 (2d Cir. 1994). Given the facts that
relator claimed at trial that he acted in self-defense (and
that the victim was the aggressor), two preceding trials
ended in a mistrial, and the jury returned a lesser
responsive verdict after the third trial, that omission under
those circumstances presents a reasonable likelihood that
counsel erred by ignoring an issue clearly stronger than
those presented and that relator would have prevailed on the
claim on appeal. Therefore, the district court erred in not
affording relator an opportunity to prove that claim at an
evidentiary hearing. See generally La.C.Cr.P. art.
930(A) ("An evidentiary hearing for the taking of
testimony or other evidence shall be ordered whenever there
are questions of fact which cannot be properly resolved
pursuant to Articles 928 and 929."). In addition,
counsel did not claim on appeal that the sentence is
unconstitutionally excessive. Considering the facts that the
25-year sentence is substantial, the claim was preserved for
review by filing a motion to reconsider sentence, and the
district court failed to observe the sentencing delay-and in
light of the dissenting view on appeal-this claim also merits
further evidentiary development. Although La.C.Cr.P. art.
930.3 "provides no basis for review of claims of
excessiveness or other sentencing error post-conviction,
" State ex rel. Melinie v. State, 93-1380 (La.
1/12/96), 665 So.2d 1172, relator's complaint that
counsel erred by failing to challenge the sentence on appeal
is cognizable post-conviction and, in fact, must be addressed
on collateral review if it is to be addressed at all.
Therefore, we grant relator's application in part to
remand to the district court to conduct an evidentiary
hearing on relator's claims that appellate counsel
rendered ineffective assistance by failing to challenge the
evidence as insufficient and the sentence as excessive. The
application is otherwise denied.
IN PART AND REMANDED.
J., Dissents in part.
dissent in part and would deny relator's writ
GENOVESE, J., would deny the writ.
CRICHTON, J., additionally concurs and assigns reasons:
with this Court's grant in part and remand order for the
trial court to conduct an evidentiary hearing on
relator's claim of ineffective assistance of appellate
counsel. On direct review, the appellate court affirmed
relator's conviction for manslaughter and sentence of
twenty-five years imprisonment at hard labor. State v.
Francis, 2011-01082 (La.App. 4 Cir. 11/7/12)
(unpub'd). To that court, appellate counsel had raised
two assignments of error regarding character evidence and
authenticity of evidence. Now, on collateral review, part of
relator's complaint is that appellate counsel was
ineffective by failing to present claims of insufficient
evidence and excessive sentence. I write separately to
spotlight compelling reasons an evidentiary hearing is
necessary to determine whether the appellate court
"would have granted relief had the issue[s] been
raised." State v. Cambrice, 2015-2362, p. 6
(La. 10/17/16), 202 So.3d 482, 487.
Rudy Francis underwent two jury trials which resulted in hung
juries and mistrials; it was only upon the third jury trial
that he was found guilty of a responsive verdict. Under these
circumstances, I find it stunning that appellate counsel did
not raise a claim of insufficient evidence. In fact, the
evidence as summarized by the ...