Opinion
NO. 19-KH-46
05-01-2019
STATE OF LOUISIANA v. DEVIN PARKS
Susan Buchholz First Deputy Clerk 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 WILLIAM C. CREDO, III JUDGE PRO TEMPORE, DIVISION "E", NUMBER 17-1851 Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Stephen J. Windhorst
WRIT GRANTED
Upon review of the State's writ application seeking review of the trial court's January 11, 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 11, 2019 order, and deny defendant's APCR requesting an out-of-time appeal.
On August 2, 2017, defendant pled guilty to armed robbery in violation of La. R.S. 14:64.3 (count one), aggravated second degree battery in violation of La. R.S. 14:34.7 (count two), and possession with intent to distribute marijuana in violation of La. R.S. 40:966 (count three). The trial court sentenced defendant to ten years at hard labor on count one, ten years at hard labor on count two, and five years at hard labor on count three. Defendant was advised he had thirty 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 timely appeal.
On December 7, 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 11, 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); State v. Johnson, 16-2232 (La. 03/09/18), 237 So.3d 1184 (per curiam); State ex rel. Payton v. State, 16-1795 (La. 02/09/18), 235 So.3d 1098 (per curiam); State ex rel. Rainey, 16-1439 (La. 10/27/17), 228 So.3d 193 (per curiam).
In Burton, supra, the Supreme Court held:
Denied. Relator is not entitled to an out-of-time appeal. See State v. Counterman, 475 So.2d 336 (La. 1985). By pleading guilty unconditionally, he waived all non-jurisdictional defects in the proceedings leading to his conviction. State v. Crosby, 338 So.2d 584, 586 (La. 1976). Relator also fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
In Johnson, supra, the Supreme Court held:
Writ granted. The ruling of the court of appeal ordering an evidentiary hearing to address defendant's entitlement to an out-of-time appeal is reversed, and the district court's ruling denying the application for post-conviction relief is reinstated. Defendant pled guilty pursuant to a negotiated agreement, was sentenced in conformity therewith, and was informed at the time of his plea that he was waiving his right to appeal. Therefore, he has not shown that he is entitled to an out-of-time appeal. See State v. Counterman, 475 So.2d 336 (La. 1985).
In Payton, the Supreme Court held:
Denied. On the showing made, relator is not entitled to an out-of-time appeal. See State v. Counterman, 475 So.2d 336 (La. 1985). By pleading guilty unconditionally, he waived all non-jurisdictional defects in the proceedings leading to his conviction. State v. Crosby, 338 So.2d 584, 586 (La. 1976), and relator cannot appeal or seek review of a sentence imposed in conformity with a plea agreement. La. C.Cr.P. art. 881.2 A(2).
In Rainey, the Supreme Court held:
Denied. On the showing made, relator is not entitled to an out-of-time appeal. State v. Counterman, 475 So.2d 336 (La. 1985). By pleading guilty unconditionally, he waived all non-jurisdictional defects in the proceedings leading to his conviction, State v. Crosby, 338 So.2d 584, 586 (La. 1976), and relator cannot appeal or seek review of a sentence imposed in conformity with a plea agreement. La. C.Cr.P. art. 881.2 A(2). Relator also fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
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 thirty days in which to file an appeal, which at the time of Counterman, was a mere five days. The length of delay from defendant's guilty plea until his request for an out-of-time appeal was in excess of one year. 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 thirty-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 minute entry from the proceeding when defendant pled guilty indicate that the court concluded defendant was properly advised of his Constitutional rights and knowingly, intelligently, freely and voluntarily 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 therefore find that the trial court erred in summarily granting defendant's APCR requesting an out-of-time appeal.
Accordingly, we grant the State's writ application, vacate the trial court's January 11, 2019 order, and deny defendant's APCR requesting an out-of-time appeal.
Gretna, Louisiana, this 1st day of May, 2019.
SJW
RAC
JOHNSON, J., CONCURS WITH REASONS
I, respectfully, concur with the majority disposition in this matter. While I acknowledge and agree with the majority disposition that the recent decisions from the Louisiana Supreme Court instruct us that a defendant is not automatically entitled to an out-of-time appeal, I write separately to stress that the disposition could unconstitutionally impair the exercise of a defendant's right to an appeal. The disposition in this matter ignores the purpose of an appeal and the legislative will of what is to be considered on appeal.
An appeal is the exercise of the right of the state or the defendant to have a judgment or ruling reviewed by the proper appellate court. La. C.Cr.P. art. 911. Pursuant to La. Const. Art. 1, § 19, "No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived... ." A defendant will waive his right to review of a non-jurisdictional pre-plea trial ruling unless, at the time of his plea, he expressly stipulates that he does not waive his right to review of it. State v. Crosby, 338 So.2d 584, 591 (La. 1976). The appropriate procedural remedy for a defendant seeking to exercise his right to appeal after his conviction and sentence become final is a timely-filed application for post-conviction relief seeking an out-of-time appeal. State v. Clark, 18-519 (La. App. 5 Cir. 12/27/18); 263 So.3d 957, 959. The Official Comments to La. C.Cr.P. art. 924.1 state that "[t]his article reaffirms the post appellate nature of the procedure. Post conviction relief is not designed to take the place of an appeal. The petitioner must first exhaust whatever appellate rights he has." State v. Hernandez, 18-3 (La. App. 5 Cir. 6/6/18); 250 So.3d 356, 358-59. As a result, an application for post-conviction relief ("APCR") is considered premature if the defendant has not exhausted his/her appellate rights when it was filed. See, id.
The Louisiana Legislature has set forth only two matters to be considered on appeal: 1) an error designated in the assignment of errors, and 2) an error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence (an errors patent review). La. C.Cr.P. art. 920. If a prejudicial error is not patent on the face of the record, a defendant who pleads guilty waives his right to obtain appellate review of that contended error if he does not object to it at the time it occurs or perfect an assignment of error or take other procedural steps required to preserve it for consideration upon his appeal. Crosby, supra.
According to the above-mentioned relevant laws, any defendant who waives his/her constitutional right to an appeal, through pleading guilty or simply letting the time delay to file lapse, has the ability to request reinstatement of that right through an APCR. A timely-filed APCR that is filed prior to the exhaustion of all appellate rights is considered premature, and the APCR has been remanded to the trial court for consideration as a request for an out-of-time appeal. On appeal, all defendants can raise jurisdictional errors, and all defendants are entitled to an errors patent review. An errors patent review is automatically provided on appeal and does not require justification by the defendant. Thus, requiring a defendant to prove that he/she is entitled to a basic errors patent review is not the will of the Louisiana Legislature and should not be a requirement of granting an APCR requesting an out-of-time appeal.
Under our constitution, it is not the function of a court to create legislation, but rather to interpret it. Unwired Telecom Corp. v. Parish of Calcasieu, 03-732 (La. 1/19/05); 903 So.2d 392, 404. Any endeavor to change the law must originate from the legislature. Eads Operating Company, Inc. v. Thompson, 93-2155 (La. App. 1 Cir. 10/7/94); 646 So.2d 948, 955, writ denied, 95-226 (La. 4/7/95); 652 So.2d 1345.
Additionally, a defendant is not prohibited from raising a challenge to voluntariness of his guilty plea in an appeal. A defendant can also challenge issues relating to the sentencing and habitual offender bill proceedings in an appeal. See State ex rel. Melinie v. State, 93-1380 (La. 1/12/96); 665 So.2d 1172 and State v. Hebreard, 98-0385 (La. App. 4 Cir. 2/25/98); 708 So.2d 1291. A defendant should also be allowed the opportunity to challenge any jurisdictional defects, regardless of whether the defendant pleaded guilty without any reservations. Denying a defendant an appeal simply because he pleaded guilty causes a grave concern for due process rights.
Therefore, despite my concerns, I find, as guided by the recent Louisiana Supreme Court decisions, that the trial court in this matter erred in granting Defendant an out-of-time appeal. However, I emphasize the above-mentioned possible problems with this outcome.