APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL
DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA,
DIRECTED TO THE HONORABLE E. ADRIAN ADAMS, DIVISION
"G", NUMBER 15-5586
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Hans J. Liljeberg
GRANTED; ORDER VACATED; REMANDED FOR FURTHER
Terrence Blunt, seeks review of the trial court's August
16, 2019 Order denying his application for post-conviction
relief seeking an out-of-time appeal.
October 5, 2017, relator pled guilty to two counts of sexual
battery of a child under 13 in violation of La. R.S. 14:43.1.
The trial court sentenced defendant to 25 years imprisonment
at hard labor on each count to run concurrently.
March 28, 2019, relator filed a pro se application
for post-conviction relief asking the trial court to grant
him an out-of-time appeal. Relator argued that he recently
learned his defense counsel did not file a motion for appeal
despite relator requesting that he do so. Relator did not set
forth any issues he intended to raise on appeal. On August
16, 2019, the trial court denied relator's request and
found no reason in the record to grant post-conviction relief
or an out-of-time appeal.
September 24, 2019, relator filed a pro se writ
application with this Court seeking review of the trial
court's order denying his request for an out-of-time
appeal. In addition to arguing that his counsel failed to
file a motion for appeal, relator claimed for the first time
that the trial court committed a reversible error by
accepting his guilty plea without adjudicating his competency
to proceed after appointing a sanity commission.
this Court will not consider issues that a party fails to
first raise with the trial court. However, this Court may do
so in the interests of justice. See Uniform Rules,
Courts of Appeal Rule 1-3. Our review of the official record
indicates that on April 14, 2017, defense counsel filed a
second motion to appoint a sanity commission, which the trial
court granted on April 17, 2017. The matter was originally
set for a hearing on May 17, 2017, but was continued to May
31, 2017. The minute entry from May 31, 2017 indicates that
defense counsel waived relator's presence and
"informed the court that they are changing the
Defendant's 'not guilty' plea to 'not guilty
by reason of insanity'." The minute entry then noted
that the case was set for motions and trial on June 29, 2017
and July 24, 2017, respectively. The record indicates that
these dates were rescheduled several times and a court status
date was set on October 5, 2017, when defendant pled guilty
as described above. We were not able to locate a minute entry
in the official record indicating that the trial court held a
competency hearing with respect to the second sanity
commission it appointed or that it rendered a second
determination as to relator's competency prior to
accepting relator's guilty plea. The record does not
contain transcripts from these proceedings in order to
confirm the accuracy of the minute entries.
State v. Counterman, 475 So.2d 336, 339 (La. 1985),
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 explained as follows:
[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
Id. at 340.
on the foregoing, we grant relator's writ application and
vacate the trial court's August 16, 2019 Order denying
relator's request for an out-of-time appeal. The district
court is ordered to hold a hearing at which it will determine
whether applicant is entitled to an out-of-time appeal under
State v. Counterman, supra. Relator shall
be represented by counsel at the hearing, and prior to the
hearing, the State may file any response it deems
appropriate. See State v. Carter, 19-788 (La.
10/8/19), 2019 WL 5058607.
Louisiana, this 28th ...