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Rodas v. State

Court of Appeals of Louisiana, Fifth Circuit

October 28, 2019

BRIAN RODAS
v.
STATE OF LOUISIANA IN RE BRIAN RODAS

          APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE FRANK A. BRINDISI, DIVISION "E", NUMBER 14-5933 AND 686-293

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Hans J. Liljeberg

         WRIT GRANTED IN PART; WRIT DENIED IN PART.

         Relator, Brian Rodas, seeks review of the trial court's July 17, 2019 denial of his motion seeking a copy of his entire appellate record to support allegations raised in his application for post-conviction relief ("APCR"). The trial court found that relator failed to make a sufficient showing of a particularized need to obtain a copy of the entire record and was not entitled to relief.

         On May 13, 2015, a jury found relator guilty of armed robbery (Count 1), felon with a firearm (Count 2) and attempted simple escape (Count 2). On May 20, 2015, the trial court sentenced defendant to 75 years at hard labor on Count 1, 20 years on Count 2 and 2 years and 6 months on Count 3, all to run consecutively. This Court affirmed defendant's convictions and sentences in State v. Rodas, 15-792 (La.App. 5 Cir. 9/22/16), 202 So.3d 518, writ denied, 16-1881 (La. 9/6/17), 224 So.3d 980.

         In his writ application and supporting documents, relator contends that he is entitled to receive a free copy of his trial record to fully develop and support arguments raised in his APCR, as well as additional potential claims, because he never received a copy of this record during the appeals process and therefore, was unable to file a pro se supplemental appellate brief. In his APCR, relator argues in his first claim that he "was not provided the record in order to properly perfect a Pro-Se Supplemental Appeal raising viable, meritorious arguments." As a result, he claims he had to rely solely on his recollection and memory with respect to the following additional issues raised in his APCR: 1) improper comments made by prosecutors during opening statements and closing arguments; 2) ineffective assistance of trial counsel in failing to object to the alleged improper comments made by prosecutors; 3) ineffective assistance of counsel during voir dire by failing to properly question jurors and failing to move to strike jurors who were victims of armed robbery or other violent crimes; 4) speculation that the State was allowed to exercise more than twelve peremptory challenges; 5) improper exclusion of jurors based on race; 6) ineffective assistance of appellate counsel; and 7) ineffective assistance of trial counsel for allowing petition to be convicted by non-unanimous jury verdict.

         Contrary to relator's arguments outlined above, this Court's internal records from relator's appeal in Case No. 15-792, indicate that on July 27, 2016, this Court granted an order to provide relator with a copy of his entire appellate record "through Trish Foster in the Legal Programs Department of the Louisiana State Penitentiary." See July 27, 2016 Order attached. This court's internal records further indicate that the Clerk of Court for the Fifth Circuit Court of Appeal mailed relator a two-volume appellate record, as well as a supplemental volume, containing the trial transcripts including opening statements, closing arguments and voir dire. On August 19, 2016, relator filed a supplemental pro se appellate brief raising only one additional argument regarding the excessiveness of his sentence. Clearly, relator had access to the appellate record and the opportunity to raise alleged issues regarding improper comments and issues regarding jury selection on appeal. Based on the foregoing, we do not find the trial court erred by finding relator failed to make a sufficient showing of a constitutional error to establish a particularized need for a free copy of his entire trial record.

         However, we will grant relator's writ application for the limited purpose of allowing him the opportunity to request relevant documents, including court minutes of his trial, from the custodian of records, Jefferson Parish Clerk of Court. In State ex rel. Simmons v. State, 93-275 (La. 12/16/94), 647 So.2d 1094, 1095, the Louisiana Supreme Court summarized the law regarding an inmate's right to court documents as follows:

Although as a general matter incarcerated indigents must demonstrate a particularized need for a court document before receiving a copy of it free of charge, see, e.g. State ex rel. Stewart v. Lombard, 94-0040 (La. 6/3/94), 637 So.2d 496; cf. United States v. MacCollom, 426 U.S. 317, 325, 96 S.Ct. 2086, 2091, 48 L.Ed.2d 666 (1976); State ex rel. Nash v. State, 604 So.2d 1054 (La.App. 1st Cir. 1992); LSA-R.S. 44:32(C)(1)(a), this Court has established exceptions to that rule. Thus, indigent inmates must be provided with: transcripts of their guilty plea colloquies, see, e.g., State ex rel. Murray v. Ward, 363 So.2d 913 (La.1978); State ex rel. Johnson v. Clerk, Fifth Judicial District Court, 479 So.2d 916 (La.1985); copies of the bill of information or grand jury indictment charging them with committing a crime, as required by La. C.Cr.P. art. 498, see, e.g., State ex rel. Dotson v. Waldron, 629 So.2d 1148 (La.1993); copies of the district court minutes for various portions of their trials, see, e.g., State ex rel. Carter v. State, 590 So.2d 1191 (La.1992); copies of transcripts of evidentiary hearings held on their applications for post conviction relief, see, e.g., State v. Feet, 617 So.2d 921 (La.1993); and copies of the documents committing them into custody, see, e.g., State ex rel. Foret v. State, 617 So.2d 900 (La.1993); State v. Martin, 516 So.2d 124 (La.1987). [Emphasis added.]

         We further grant relator the opportunity to request a cost of estimate of the trial transcripts he desires to obtain. The Louisiana Supreme Court has declared that custodian of records must supply a defendant with a cost estimate for records he seeks to obtain that he is not entitled to receive free of charge. See Landis v. Moreau, 00-1157 (La. 2/21/01), 779 So.2d 691, 695.

         Accordingly, we grant relator's writ application for the limited purpose of allowing relator 30 days to submit a request to the Jefferson Parish Clerk of Court to determine those portions of the requested record that he may obtain free of charge and to obtain a cost estimate for other requested documents. In all other respects, the writ application is denied.

         Gretna, Louisiana, this 28th day of October, 2019.

         FHW

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