State of Louisiana Versus Kyron J. Hunter A/K/A Khara Bey

STATE OF LOUISIANA NO. 19-KM-499

VERSUS FIFTH CIRCUIT

KYRON J. HUNTER A/K/A KHARA BEY COURT OF APPEAL

STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-6126, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

October 30, 2019

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Marc E. Johnson

MOTION DENIED: MATTER REMANDED WITH INSTRUCTIONS
JGG
FHW
MEJ

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Paul D. Connick, Jr.
Thomas J. Butler

DEFENDANT/APPELLANT,
KYRON J. HUNTER A/K/A KHARA BEY
In Proper Person

GRAVOIS, J.

Mover, Kyron J. Hunter, a/k/a Khara Bey, filed a “Motion to Proceed In

Forma Pauperis” in this Court, seeking a ruling from this Court granting him

pauper status in his unlodged appeal in district court case number 18-6126.

Previously, mover filed a motion to proceed in forma pauperis in the district

court, which was denied on September 24, 2019 without prejudice. In that

ruling, which is attached to the Motion filed by mover in this Court, the district

court found that it lacked jurisdiction to consider the motion for pauper status, as

per La. C.Cr.P. art. 916, because its jurisdiction had been divested by the trial

court’s grant of mover’s motion for appeal on June 26, 2019. Mover’s appeal is

not yet lodged in this Court because according to the official record, appeal costs

remain unpaid.

According to La. C.Cr.P. art. 916(6), the trial court retains jurisdiction to

render judgment concerning a ministerial matter not in controversy on appeal.

La. R.S. 15:175(A)(1)(a), entitled “Proceedings to determine indigency,”

provides: “A preliminary inquiry and determination of indigency of any accused

person shall be made by the court not later than arraignment and such

determination may be reviewed by the court at any other stage of the

proceedings.” (Emphasis added.) A defendant is presumed indigent when the

trial court appoints a public defender to represent him. State v. Hales, 18-657,

2018 WL 6037240, at *1 n. 1 (La. App. 5 Cir. 11/16/18); State v. Thadison, 17-

0145, 2017 WL 3426045, at *2 (La. App. 4 Cir. 6/28/17), writ denied, 17-1323

(La. 4/27/18), 241 So.3d 307; State v. Carter, 589 So.2d 1212, 1213 (La. App.

4th Cir. 1991); State v. Jackson, 492 So.2d 1265 (La. App. 4th Cir. 1986).

A review of the official record in this matter indicates that the trial court,

at mover’s arraignment, ordered the appointment of the public defender’s office.

19-KM-499 1

Therefore, it appears that the trial court made a preliminary inquiry and

determination of mover’s indigency as the appointment of the public defender’s

office is presumptive evidence of indigence. Under La. R.S. 15:175, the trial

court could have reviewed this initial determination at a later stage of the

proceedings, but the issue did not arise until after the trial court granted mover’s

motion for appeal and mover was assessed costs in order for the appellate record

to be prepared. The official record does not reflect that there was ever a change

in circumstances to rebut the presumption of mover’s indigent status.

Upon review, we find that as per La. C.Cr.P. art. 916(6) and La. R.S.

15:175(A)(1)(a), the trial court retained jurisdiction to rule on mover’s motion

for pauper status, even though it was filed after the motion for appeal was

granted.

Accordingly, we deny mover’s motion filed in this Court seeking pauper

status, since the trial court retained jurisdiction to rule on his motion for indigent

status. We remand the matter and instruct the trial court to rule on mover’s

motion to proceed in forma pauperis.1 If the trial court finds that mover is

indigent, the costs to prepare the appellate record should be waived under La.

C.Cr.P. art. 914.1.

MOTION DENIED; MATTER REMANDED
WITH INSTRUCTIONS

1
As the trial court retains jurisdiction, it is not precluded from holding an evidentiary hearing on
pauper status. See State v. Borden, 493 So.2d 1205 (La 1986) (per curiam).

19-KM-499 2

SUSAN M. CHEHARDY MARY E. LEGNON

CHIEF JUDGE INTERIM CLERK OF COURT

FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN 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
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
OCTOBER 30, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KM-499
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
THOMAS J. BUTLER (APPELLEE)

MAILED
KYRON J. HUNTER (APPELLANT) HON. PAUL D. CONNICK, JR. (APPELLEE)
IN PROPER PERSON DISTRICT ATTORNEY
112 RENDON DRIVE TWENTY-FOURTH JUDICIAL DISTRICT
LAFAYETTE, LA 70501 200 DERBIGNY STREET
GRETNA, LA 70053