Clerk of Court For the Court State Of Louisiana v. Derek Fabacher

The Supreme Court of the State of Louisiana
Clerk of Court
For the Court
STATE OF LOUISIANA
VS.
DEREK FABACHER
No.2019-KP-00296
_ _ _ _ _ _
IN RE: State of Louisiana - Applicant Plaintiff; Applying For Writ Of Certiorari,
Parish of Jefferson, 24th Judicial District Court Number(s) 14- 0385, Court of
Appeal, Fifth Circuit, Number(s) 18-KH-703;
_ _ _ _ _ _
September 23, 2020
Writ application granted with order.
JLW
JDH
SJC
JTG
WJC
JHB
Supreme Court of Louisiana
September 23, 2020
09/23/2020 "See News Release 034 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA
No. 19-KP-0296
STATE OF LOUISIANA
v.
DEREK FABACHER
ON SUPERVISORY WRITS TO THE TWENTY-FOURTH
JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
PER CURIAM:
Writ granted in part. Defendant pleaded guilty, waived his right to appeal,
and was informed of the time in whic h to apply for post-conviction relief.
Defendant then timely applied for post- conviction relief, alleging he received
ineffective assistance of counsel. The district court found the application for post-
conviction relief to be premature because defendant did not first seek an out-of-
time appeal pursuant to State v. Counterman , 475 So.2d 336 (La. 1985). The
district court erred.
Code of Criminal Procedure art. 924. 1 provides, “An application for post
conviction relief shall not be entertained if the petitioner may appeal the conviction
and sentence which he seeks to challenge, or if an appeal is pending.” It should not,
however, be construed as requiring that a defendant pursue an appeal he has
waived, forfeited, or does not want before he applies for post-conviction relief. In
addition, this court in State v. Counterman , 475 So.2d 336, 339 (La. 1985),
concluded that “the appropr iate procedural vehicle for a defendant to seek the
exercise of his right to appeal, after th e delay provided in Ar ticle 914 has expired,
is an application for post conviction relief pursuant to Articles 924–930.7.” This
court further noted:

When the defendant has an appeal pending or may still
appeal, the court cannot entertain an application for
post conviction relief. La.C.Cr.P. Art. 924.1. However,
when the time for appealing has elapsed without the
filing of an appeal, defendant may seek reinstatement
of his right to appeal by application for post
conviction relief in the trial court.
Counterman, 475 So.2d at 339 n.4 (e mphasis added). Thus, State v. Counterman
provides a mechanism by which a defendant may seek reinstatement of his right to
appeal after he has lost it. It does not require that a defendant seek reinstatement of
his right to appeal before he can present a claim of ineffective assistance of counsel
by timely filed application for post-conviction relief. Notably, claims of ineffective
assistance of counsel are normally relegated to co llateral review. See State v.
Burkhalter, 428 So.2d 449, 456 (La. 1983). Accordingly, the matter is remanded to
the district court, which is ordered to consider the applica tion for post-conviction
relief in accordance with procedures provi ded in La.C.Cr.P. arts. 927 et seq. The
application is otherwise denied.
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