Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Carter

Court of Appeals of Louisiana, Fifth Circuit

May 1, 2019

STATE OF LOUISIANA
v.
WILLIE CARTER, IN RE STATE OF LOUISIANA

          APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE MICHAEL P. MENTZ, DIVISION ''F'', NUMBER 17-4240

          Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg

         After a thorough review of the State's writ application seeking review of the trial court's January 3, 2019 order granting defendant's application for post-conviction relief ("APCR") requesting an out-of-time appeal, we find that the trial court erred in granting defendant's APCR requesting an out-of-time appeal. For the following reasons, we grant the State's writ application, vacate the trial court's January 3, 2019 order, and deny defendant's APCR requesting an out-of-time appeal.

         On February 5, 2018, defendant pled guilty to purse snatching in violation of La. R.S. 14:65.1 and was sentenced to imprisonment at hard labor for five years without the benefit of probation or suspension of sentence. The State filed a habitual offender bill of information, to which defendant stipulated. The trial court vacated defendant's original sentence and resentenced defendant to imprisonment at hard labor for five years without benefit of probation or suspension of sentence under La. R.S. 15:529.1. Defendant was advised he had thirty (30) days to appeal his conviction and two years after the judgment of conviction and sentence became final in which to seek post-conviction relief. Defendant did not appeal.

         On December 20, 2018, defendant filed an application for post-conviction relief (APCR) seeking an out-of-time appeal under State v. Counterman, 475 So.2d 336 (La. 1985). Defendant did not state any facts or reasons to support his assertion that he is entitled to an out-of-time appeal under Counterman, supra. On January 3, 2019, the trial court summarily granted defendant's out-of-time appeal.

         The State filed this writ application arguing that defendant is not entitled to an out-of-time appeal because he pled guilty, was advised of his right to an appeal, waived his right to an appeal, and did not preserve any issue for appeal under State v. Crosby, 338 So.2d 584 (La. 1976). The State also contends that it was not given notice of, or an opportunity to object to, defendant's request for an out-of-time appeal. Therefore, the State argues that the trial court erred in summarily granting defendant's APCR requesting an out-of-time appeal when defendant did not satisfy the requirements under Counterman.

         In Counterman, supra, the Louisiana Supreme Court held that an application for post-conviction relief in the trial court is the appropriate procedural vehicle for a defendant who has failed to appeal to seek reinstatement of his right to appeal Id. at 339. The Supreme Court concluded:

[T]he trial court may grant post conviction relief reinstating defendant's constitutional right to appeal after the time for appealing has elapsed, after due consideration of such factors as the length of the delay in defendant's attempt to exercise the right and the adverse effect upon the state caused by the delay, in cases such as those in which the defendant was not substantially notified at sentencing of his right to appeal or those in which the defense attorney was at fault in failing to file or perfect a timely appeal. Id. at 340. [Emphasis added.]

         In support of its position, the State cites recent Louisiana Supreme Court per curia opinions, which establish that a defendant is not automatically entitled to an out-of-time appeal; rather, a defendant is only entitled to an out-of-time appeal under the limited circumstances set forth in Counterman, supra. See State ex rel. Burton v. State, 17-1915 (La. 01/14/19), 261 So.3d 769 (per curiam)[1]; State v. Johnson, 16-2232 (La. 03/09/18), 237 So.3d 1184 (per curiam)[2]; State ex rel. Payton v. State, 16-1795 (La. 02/09/18), 235 So.3d 1098 (per curiam)[3]; State ex rel. Rainey, 16-1439 (La. 10/27/17), 228 So.3d 193 (per curiam).[4]

         Here, defendant waived all non-jurisdictional defects in the proceeding leading to his conviction by pleading guilty unconditionally, and his sentence was imposed in conformity with a plea agreement. La. C.Cr.P. art 881.2 A(2).

         Although the practice, particularly in this Court, has been to routinely grant out-of-time appeals, Counterman never established an absolute requirement for out-of-time appeals, even in cases in which otherwise appealable issues are raised in post conviction relief wherein the defendant has not exhausted his appellate rights. As quoted above, Counterman states that a court "may grant post conviction relief reinstating defendant's constitutional right to appeal after the time for appealing has elapsed, after due consideration of such factors as . . ." [emphasis added]. Accordingly, the factors suggested in Counterman are illustrative, and moreover, are within the trial court's discretion after "due consideration" of these and other relevant factors.

         Applying the non-exclusive Counterman criteria to the instant case, the defendant was correctly advised that he had 30 days in which to file an appeal, which at the time of Counterman, was a mere 5 days. The length of delay from defendant's guilty plea until his request for an out-of-time appeal was in excess of ten months. Further, Counterman applies "in cases such as those in which the defendant was not substantially notified at sentencing of his right to appeal or those in which the defense attorney was at fault in failing to file or perfect a timely appeal." Here, defendant was advised of his right to appeal, and of the 30-day limit in which to file. His APCR made no suggestion that counsel was at fault for failing to file an appeal, or that there was or is any non-frivolous appealable issue associated with his plea whatsoever. Defendant made no reservation under Crosby, and does not allege any Constitutional shortfall in his Boykin colloquy. In fact, the waiver of rights form, signed by defendant and his counsel, and the colloquy, indicate and the court concluded that he was properly advised of his Constitutional rights and knowingly and intelligently waived them.

         Defendant's case is well argued by appellate counsel. Nevertheless, considering Counterman and the Supreme Court's recent decisions, we find that defendant's APCR seeking an out-of-time appeal does not meet the intent or criteria set forth in Counterman. We find that the trial court erred in summarily granting defendant's APCR requesting an out-of-time appeal.

          Accordingly, for the reasons stated herein, we grant the State's writ application, vacate the trial court's January 3, 2019 order, and deny ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.