Montana Hymel Versus Lock5, L.L.C.

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1/14/21) (unpublished writ disposition).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)
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21-KH-704
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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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