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State v. Hoofkin

Court of Appeals of Louisiana, Fifth Circuit

July 31, 2018

STATE OF LOUISIANA
v.
FRANKIE HOOFKIN IN RE FRANKIE HOOFKIN

          APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE HENRY G. SULLIVAN, JR., DIVISION ''M'', NUMBER 13-2155

          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore.

         WRIT GRANTED FOR A LIMITED PURPOSE; REMANDED

         In his writ application, relator, Frankie Hoofkin, seeks review of the April 17, 2018 denial of his application for post-conviction relief ("APCR") in his district court case number 13-2155 from the Twenty-Fourth Judicial District Court's. Relator assigns three errors arguing that he is entitled to an evidentiary hearing on his APCR due to trial counsel's conflicts of interest, allegations of ineffective assistance of counsel, and due process violations under the Fifth Amendment. For the reasons that follow, we grant the writ for the limited purpose of remanding the matter to the district court with the instruction to consider relator's application for post-conviction relief as a request for an out-of-time appeal.

         On April 22, 2013, relator was arrested on five counts of attempted murder in violation of La. R.S. 14:27 (counts 1, 2, 3, 4, 5); one count of aggravated flight from a police officer in violation of La. R.S. 14:108.1 (C) (count 7); and one count of aggravated criminal damage to property in violation of La. R.S. 14:55 (count 6). On April 25, 2016, relator pled guilty to all counts, and the district court sentenced relator to thirty-five years at hard labor for the five convictions of attempted murder, fifteen years for the aggravated flight from a police officer conviction and ten years for the criminal damage to property conviction. The trial court ordered the sentences to run concurrently with each other and with a separate federal sentence. Relator did not file a motion for appeal in the district court. Relator filed his application for post-conviction relief on April 13, 2018, and the district court dismissed his motion on April 17, 2018 without prejudice because relator must exhaust all appellate rights before pursuing post-conviction relief.[1]

         The official record reflects that within two years of his guilty pleas and sentencing, relator filed a timely application for post-conviction relief challenging the evidence he contends the state used to cause him to plead guilty and further asserting an ineffective assistance of counsel claim. The district court judge found relator's APCR premature under La. C.Cr.P. art. 924.1.

         After sentence has been imposed, a defendant must seek an appeal within the time period specified by La. C.Cr.P. art. 914. State v. Williams, 16-32 (La.App. 5 Cir. 8/24/16), 199 So.3d 1205, 1209. Under this article, unless a motion to reconsider is filed, a motion for appeal must be made, whether orally or in writing, no later than "thirty days after the rendition of the judgment or ruling from which the appeal is taken." See La. C.Cr.P. art. 914(B). If a defendant fails to move for an appeal within this time, the conviction and sentence become final and the defendant loses the right to obtain an appeal by simply filing a motion for appeal in the trial court. Williams, supra. To obtain reinstatement of his right to appeal, the defendant must timely file in the trial court an application for post-conviction relief seeking an out-of-time appeal. Id. (citing State v. Counterman, 475 So.2d 336 (La. 1985)).

         Relator did not timely appeal his convictions and sentences. However, within the statutory two-year time period, relator filed an APCR but did not expressly request an out-of-time appeal. Bearing in mind that pro se filings are subject to less stringent standards than formal pleadings filed by lawyers, State ex. rel. Egana v. State, 00-2351 (La. 9/22/00), 771 So.2d 638, and in the interest of justice, we grant this writ application for the limited purpose of remanding this matter to the district court, and order the district court to construe relator's APCR as an application for post-conviction relief seeking an out-of-time appeal. See Quang T. Do v. Vannoy, 16-157 (La.App. 5 Cir. 5/12/16), 2016 La. App. LEXIS 2314, *11.

         Gretna, Louisiana, this 31st day of July, 2018.

         FHW

         SJW

         MFE.

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