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State v. Mathieu

Court of Appeals of Louisiana, Third Circuit

November 6, 2019

STATE OF LOUISIANA
v.
DARREL BROWN MATHIEU

          APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 14-452 HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE

          Hon. M. Bofill Duhe Sixteenth Judicial District Attorney W. Claire Howington Assistant District Attorney COUNSEL FOR APPELLEE: State of Louisiana

          Mummi S. Ibrahim Attorney at Law COUNSEL FOR DEFENDANT/APPELLANT: Darrel Brown Mathieu

          Court composed of Shannon J. Gremillion, Candyce G. Perret, and Jonathan W. Perry, Judges.

          SHANNON J. GREMILLION JUDGE

         Defendant, Darrel Brown Mathieu, appeals his convictions and sentences for armed robbery with a firearm, violations of La.R.S. 14:64 and 14:64.3, for which he received a sentence of sixty years at hard labor plus five years enhancement for use of a firearm. For the reasons that follow, we affirm Defendant's convictions and sentences.

         FACTS AND PROCEDURAL POSTURE

         Defendant was charged by bill of information on April 4, 2014, with aggravated second degree battery, in violation of La.R.S. 14:34.7; armed robbery with the use of a firearm, in violation of La.R.S. 14:64 and 14:64.3; and possession of a firearm by a convicted felon, in violation of La.R.S. 14:95.1, all stemming from an armed robbery of a Dollar General store during which a clerk was shot in the leg. Defendant was arrested later that evening by officers investigating a suspicious-person call. The following day, $629 was found stuffed in a tree near the scene of Defendant's arrest. A test on Defendant's hands for gunpowder residue returned a positive result. The bill of information was amended in May 2014 to correct the name of the victim.

         A jury was empaneled on May 12, 2015. The following day, Defendant informed the court that he wished to change his plea to accept an offer extended by the State. Defendant pleaded guilty to armed robbery with a firearm. In exchange, the State dismissed the remaining charges and agreed to not bill Defendant as a habitual offender.

         On August 10, 2015, Defendant was sentenced "to sixty-five years in prison without benefit of probation, parole, or suspension of sentence." On January 8, 2016, the trial court clarified that its sentence was actually sixty years on the armed robbery plus five years for the firearm enhancement with the two sentences to run consecutively. At this hearing, the trial court instructed Defendant that he had two years within which to seek post-conviction relief. On December 18, 2017, Defendant filed a "Motion for Out-of-Time Appeal," which the trial court granted.

         Defendant now appeals his conviction and sentences, contending that his trial counsel was ineffective for failing to request a probable cause hearing, failing to request a bill of particulars, and failing to file a motion to suppress; that his plea was not knowingly and voluntarily made; and that his sentence is excessive.

         ANALYSIS

         There exists a serious concern whether Defendant's motion for out-of-time appeal was not timely filed. However, in State ex rel. Clavelle v. State, 02-1244 (La. 12/12/03), 861 So.2d 186, the supreme court allowed a defendant to seek post-conviction relief after a trial judge told him during a probation revocation hearing that he had two years to apply for post-conviction relief, despite Uniform Rules- Courts of Appeal, Rule 4-3 allowing a defendant only thirty days from a probation revocation to seek review. The court concluded the defendant had attempted to comply with what he reasonably believed were the procedural requirements for preserving his claims.

         In light of Clavelle and the trial court's instruction to Defendant on January 8, 2016, we will address the merits of Defendant's appellate claims rather than dismiss the appeal as untimely under La.Code Crim.P. art. 930.8. Additionally, in the interest of fairness, we note that, had an appeal been taken without the trial court clarifying the sentence imposed, this court would have vacated Defendant's sentence as an error patent because it was indeterminate. See State v. Martin, 13-628 (La.App. 4 Cir. 5/28/14), 141 So.3d 933, writ denied, 14-1250 (La. ...


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