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State v. Hernandez

Court of Appeals of Louisiana, Fifth Circuit

June 6, 2018

STATE OF LOUISIANA
v.
CHRISTIAN HERNANDEZ

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-436, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Juliet L. Clark

          COUNSEL FOR DEFENDANT/APPELLANT, CHRISTIAN HERNANDEZ John T. Fuller

          Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore

          STEPHEN J. WINDHORST JUDGE.

         Defendant, Christian Hernandez, appeals his convictions and sentences for armed robbery with a firearm and attempted second degree murder. For the following reasons, we affirm defendant's convictions and sentences and remand with instructions.

         Background

         On January 27, 2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Christian Hernandez, with armed robbery with a firearm, in violation of La. R.S. 14:64 and La. R.S. 14:64.3 (count one) and attempted second degree murder, in violation of La. R.S. 14:30.1 and La. R.S. 14:27 (count two). Defendant was arraigned on January 30, 2014, and pled not guilty.

         On July 17, 2015, defendant withdrew his not guilty pleas and pled guilty as charged. On July 20, 2015, the trial judge sentenced defendant to imprisonment at hard labor for twenty-three years plus an additional five-year sentence at hard labor pursuant to La. R.S. 14:64.3 on count one, and imprisonment at hard labor for twenty-eight years on count two, with both sentences including the enhancement, to be served without benefit of parole, probation, or suspension of sentence. The trial judge also ordered those sentences to run concurrently with each other and with any other sentences that defendant may be currently serving.

         On June 6, 2017, defendant filed an Application for Post-Conviction Relief (APCR) arguing that he was not adequately informed of the consequences of his plea and of the minimum possible sentences. The trial judge dismissed the APCR without prejudice and advised defendant to seek an out-of-time appeal as set forth in State v. Counterman, 475 So.2d 336 (La. 1985). On August 1, 2017, defendant filed a notice of intent to apply for a writ of review. On August 31, 2017, this Court granted the writ for the limited purpose of vacating the district court's order dismissing the APCR, and remanding the matter to the district court with instructions to construe defendant's timely filed APCR as a request for an out-of-time appeal. State v. Hernandez, 17-KH-430 (La.App. 5 Cir. 8/31/17) (unpublished writ disposition). On September 15, 2017, the trial judge granted defendant an out-of-time appeal and dismissed the APCR without prejudice.

         Because defendant pled guilty, the underlying facts were not fully developed at a trial. Nevertheless, the State alleged in the amended bill of information that on or about March 8, 2013, Christian Hernandez and his co-defendants, Kevin Rivas and Leonardo Paredes-Morales robbed Louis Alvarado while armed with a dangerous weapon, "to wit: a firearm as per La. R.S. 14:64.3" (count one). The State alleged in that same amended bill of information that on March 8, 2013, Hernandez and his co-defendant, Rivas attempted the commit second degree murder of Louis Alvarado. During the colloquy, the State provided the following factual basis:

If the State had proceeded to trial against both Defendants[1] in Case No. 14-0436 it would have proven beyond a reasonable doubt that on March 8th, 2013 that both Defendants violated Louisiana Revised Statute 14:64 and they did rob Louis Alvarado while armed with a dangerous weapon under the provision of Louisiana Revised Statute 14:64.3.
Furthermore, it would have proven beyond a reasonable doubt that both Defendants on that same date, March 8th, 2013 violated Louisiana Revised Statute 14:27:30.1 in that they did attempt to ...

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