Montana Hymel Versus Lock5, L.L.C. ( 2021 )

MONTANA HYMEL NO. 21-KH-704
VERSUS FIFTH CIRCUIT
LOCK5, L.L.C. COURT OF APPEAL
STATE OF LOUISIANA
December 16, 2021
Susan Buchholz
First Deputy Clerk
IN RE MONTANA HYMEL
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT,
PARISH OF ST JAMES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
STEVEN C. TUREAU, DIVISION "D", NUMBER 16,7491
Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Robert A. Chaisson
WRIT GRANTED; MATTER REMANDED WITH INSTRUCTIONS
Relator, Montana Hymel, seeks review of the district court’s denial of his
application for an out-of-time appeal. For the reasons that follow, we grant relator
the relief requested.
On March 12, 2018, relator pled guilty to vehicular homicide, in violation of
La. R.S. 14:32.1. The plea agreement did not include a specific sentence; rather, it
provided that the district court would determine relator’s sentence after reviewing a
pre-sentence investigation report. On July 9, 2018, the district court sentenced
relator to fifteen years imprisonment at hard labor with five years to be served
without benefit of parole, probation, or suspension of sentence. At sentencing, the
district court informed relator of the time period for filing an APCR but did not
advise him of the time delays for filing a motion for appeal or of the right to appeal
his sentence. Relator did not file a motion for appeal.
21-KH-704
However, on May 7, 2020, relator filed an application for post-conviction
relief in the district court requesting an out-of-time appeal, which was denied on
September 21, 2020. Relator thereafter sought review in this Court, and on
January 14, 2021, this Court vacated the district court’s judgment and granted
relator’s writ “for the limited purpose of remanding this matter to the district court
to hold a Counterman hearing at which it will determine whether relator is entitled
to an out-of-time appeal.” Hymel v. Lock5, L.L.C., 20-KH-374 (La. App. 5 Cir.
1/14/21) (unpublished writ disposition). In doing so, this Court stated:
Upon considering the circumstances of this case, particularly
that defendant’s plea agreement did not include a specific sentence
and that defendant was not informed of his right to appeal his sentence
or the time period for filing an appeal, we find that defendant should
have a hearing under the rule of State v. Counterman, 475 So.2d 336(La. 1985) to determine whether he is entitled to an out-of-time
appeal. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from
appealing a sentence imposed in conformity with a plea agreement
and set forth in the record at the time of the plea. This limitation,
however, does not apply when a specific sentence or sentencing range
is not agreed to by both parties as part of a plea agreement. State v.
Morales, 12-21 (La. App. 5 Cir. 10/30/12), 102 So.3d 1038, 1041.
There is a constitutional right in Louisiana to an appeal. La. Const.
art. 1, § 19; State v. Arceneaux, 07-692 (La. App. 5 Cir. 3/25/08), 983
So.2d 148, 150-51, writ denied, 08-0892 (La. 11/10/08), 996 So.2d
1067. Only the defendant can waive this right and any waiver of right
to appeal must be an informed one. Id.Pursuant to this Court’s directive, the district court conducted a Counterman
hearing on October 13, 2021. After considering the testimony and evidence
presented, the district court denied relator’s request for an out-of-time appeal,
finding relator was “substantially notified of his right to appeal.”
Having thoroughly reviewed relator’s writ application, including the
transcripts from the guilty plea proceeding, the sentencing proceeding, and the
Counterman hearing, and the applicable law and jurisprudence, we find that the
record does not support the district court’s determination that relator was
“substantially notified of his right to appeal.” Defendant did not plead guilty in
2
exchange for a specified sentence. As such, he was constitutionally entitled to
appeal his sentence. While relator was advised of his rights at the guilty plea
proceeding, he had not yet been sentenced at that time. The transcript from the
sentencing proceeding clearly reflects that when relator was sentenced, he was
only advised of the time delays for filing an application for post-conviction relief.
He was not advised that he could appeal his sentence or of the time delays for
appealing. As there is nothing in the record to indicate that defendant was advised
of his right to appeal his sentence or that he knowingly and voluntarily waived this
right, we find that the district court abused its discretion in denying relator’s
application for an out-of-time appeal.
Accordingly, we vacate the district court’s October 13, 2021 judgment and
remand the matter to the district court with instructions to grant relator’s request
for an out-of-time appeal with regard to the imposed sentence.
Gretna, Louisiana, this 16th day of December, 2021.
RAC
FHW
MEJ
3
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400
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21-KH-704
E-NOTIFIED
23rd Judicial District Court (Clerk)
Honorable Steven C. Tureau (DISTRICT JUDGE)
Emily Posner (Relator) Grant L. Willis (Respondent)
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Lock5, L.L.C. (Respondent) James E. Boren (Relator)
14235 Lockhart Lane Attorney at Law
Walker, LA 70785 830 Main Street
Baton Rouge, LA 70802
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