Mark Crocklen, Jr. Versus Tim Hooper, Warden, Elayn Hunt Correctional Center

MARK CROCKLEN, JR. NO. 21-KH-71

VERSUS FIFTH CIRCUIT

TIM HOOPER, WARDEN, ELAYN HUNT COURT OF APPEAL

CORRECTIONAL CENTER STATE OF LOUISIANA

March 12, 2021

Susan Buchholz
First Deputy Clerk

IN RE MARK CROCKLEN, JR.

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT
COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
LEE V. FAULKNER, JR., DIVISION "P", NUMBER 16-6590

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Stephen J. Windhorst

WRIT GRANTED FOR LIMITED PURPOSE

Relator, Mark Crocklen, seeks review of the district court’s

dismissal of his application for post-conviction relief as premature.

Relator pled guilty to numerous offenses in the district court,

waived his right to appeal, and was informed of the time delays to

apply for post-conviction relief. Relator timely filed his application

for post-conviction relief in the district court, alleging that he was

denied his right to counsel of choice and ineffective assistance of

counsel. On October 16, 2020, the district court dismissed relator’s

application for post-conviction relief without prejudice on the basis

that it was premature because relator had not yet exhausted his

appellate rights. Relator now contends that the district court

misapplied La. C.Cr.P. art. 924.1 by forcing him to request an out-of-

21-KH-71

time appeal even though he waived his right to appeal his convictions

and sentences by entering guilty pleas. We agree with relator’s

assertion.

In Boyd v. State, 20-503 (La. 9/23/20), 301 So.3d 1153, the

Louisiana Supreme Court found that although a defendant may seek

reinstatement of his right to appeal, he is not required to seek it before

he can present a claim of ineffective assistance of counsel by a timely-

filed application for post-conviction relief. The Louisiana Supreme

Court stated the following:

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 appropriate procedural vehicle for a defendant to seek the
exercise of his right to appeal, after the delay provided in
Article 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 (emphasis added).

Thus, State v. Counterman provides a mechanism by which a

defendant may seek reinstatement of his right to appeal. 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

2

assistance of counsel are normally relegated to collateral review. See State

v. Burkhalter, 428 So.2d 449, 456 (La. 1983).

Accordingly, this writ is granted for the limited purpose of

remanding the matter to the district court, with instructions to consider

relator’s application for post-conviction relief in accordance with the

procedures provided for in La. C.Cr.P. arts. 927 et seq.

Gretna, Louisiana, this 12th day of March, 2021.

RAC
MEJ
SJW

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 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 DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 03/12/2021 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

21-KH-71
E-NOTIFIED
24th Judicial District Court (Clerk)
Hon. Lee V. Faulkner, Jr. (DISTRICT JUDGE)
Thomas J. Butler (Respondent)

MAILED
Mark Crocklen, Jr. #620187 (Relator)
Elayn Hunt Correctional Center
Post Office Box 174
St. Gabriel, LA 70776