State of Louisiana Versus Shawn McKinney

STATE OF LOUISIANA NO. 22-KH-398

VERSUS FIFTH CIRCUIT

SHAWN MCKINNEY COURT OF APPEAL

STATE OF LOUISIANA

September 28, 2022

Linda Wiseman
First Deputy Clerk

IN RE SHAWN MCKINNEY

APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT,
PARISH OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
NGHANA LEWIS, DIVISION "B", NUMBER 18,159

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Marc E. Johnson

WRIT GRANTED FOR A LIMITED PURPOSE

Relator, Shawn McKinney, seeks review of the trial court’s denial of his
application for post-conviction relief (“APCR”). For the following reasons, we
grant the writ for the limited purpose of transferring the matter to the district court
for an evidentiary hearing to consider the merits of relator’s APCR.

On February 22, 2019, a jury found relator guilty of aggravated battery in
violation of La. R.S. 14:34 (count one) and aggravated criminal damage to
property in violation of La. R.S. 14:55 (count two). On March 25, 2019, the trial
court sentenced relator to concurrent ten-year sentences at hard labor on each count
and imposed concurrent five thousand dollar fines on each count. Relator’s
convictions and sentences were affirmed by this Court on December 26, 2019.
State v. McKinney, 19-380 (La. App. 5 Cir. 12/26/19), 289 So.3d 153.

On March 16, 2022, relator filed the instant APCR with the district court. In
it, relator made a claim of ineffective assistance of counsel based on newly
discovered evidence of his attorney’s unethical behavior in other cases and
subsequent disbarment, citing La. C.Cr.P. art. 930.8(A)(1). La. C.Cr.P. art.
930.8(A)(1) allows a defendant to file an APCR more than two years after his
conviction and sentence become final where “[t]he application alleges, and the
petitioner proves or the state admits, that the facts upon which the claim is
predicated were not known to the petitioner or his attorney.”

Relator attached to his APCR the disciplinary proceedings reflecting his
counsel’s various disciplinary violations that occurred within the same time frame
that counsel represented relator. The disciplinary proceedings reflect that relator’s

22-KH-398

trial counsel previously failed to obtain a former client’s medical records in a
personal injury case prior to settlement; settled a personal injury case without
client authorization; forged his clients’ signatures on a settlement check for
$16,000.00; attempted to charge interest on a client’s loan to profit from the
advance; and failed to pay a client’s medical expenses after settlement, but
withheld the amount of the medical expenses from the settlement. The Louisiana
Supreme Court, in ordering that counsel be disbarred from the practice of law,
found that counsel had prior disciplinary issues and, in that case, “knowingly, if
not intentionally, violated an ethical and professional duty to a client by failing to
provide legal services for [his client] in an adequate and competent manner, by
settling the personal injury case without [the client’s] authorization, by charging or
attempting to charge interest on a loan to [the client], by failing to safeguard client
funds and then converting those funds, and by failing to pay [the client’s] medical
bill.” See In re Bell, 19-1345 (La. 11/5/19), 281 So.3d 650, 654. The Court also
found a “dishonest or selfish motive” for counsel’s conduct, thereby causing actual
harm to his client.

In this case, relator makes the allegations that his counsel was most
concerned about his payments for continued representation in his criminal case.
He alleges that his meetings with counsel were not productive and took place at a
gas station rather than an office. He contends that his counsel did not interview
any witnesses or attempt to investigate the case. He further alleges that his counsel
coerced him into refusing a three-year probation plea deal in the early stages of the
case, and contends that his counsel convinced him that the state did not have a case
against him, “in an effort to make additional monies” through the continued
representation.

The documents attached to the writ application reflect that the trial court
initially set the matter for an evidentiary hearing; however, on June 13, 2022, the
trial court vacated that Order and denied relator’s APCR, opining without an
evidentiary hearing. The trial court stated: “the reasons for [counsel’s] suspension
and disbarment have no bearing on petitioner’s case. At the time [counsel] was
representing the petitioner he was still licensed; his disbarment came several
months after petitioner’s conviction. Admission to the bar allows us to assume that
counsel has the training, knowledge, and ability to represent a client who has
chosen him. Continued licensure normally gives a reliable signal to the public that
the licensee is what he purports to be—an attorney qualified to advise and
represent a client.” The court then opined, without an evidentiary hearing, that
“petitioner did receive effective assistance of counsel at all stages of the criminal
proceedings and, consequently, there has been no violation or petitioner's sixth
amendment rights. Thus, pursuant to La. C.Cr.P. art. 928 and 929 the Evidentiary
hearing ordered by the Court is rescinded.”

In the instant case, we find that defendant’s APCR and supporting
documentation sufficiently demonstrate that the facts upon which his claims are
predicated were not known to defendant, and therefore, the exception to the post-
conviction limitation period applies. We also find that defendant has argued
persuasively that the nature of this new evidence is not such that it should have
been discovered by the exercise of due diligence and, thus, it is not untimely
pursuant to La. C.Cr.P. art. 930.8(A)(1). (See State v. Hurst, 15-455 (La. 9/18/15),
209 So.3d 701 (per curiam). We further find that there are questions of fact that
raise concern and which cannot be properly resolved pursuant to Articles 928 and
929. Accordingly, this case is hereby remanded for an evidentiary hearing to

2

consider the merits of relator’s APCR and to determine, after an evidentiary
hearing, whether relator was denied effective assistance of counsel under the two-
prong test set forth in Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).

Gretna, Louisiana, this 28th day of September, 2022.

FHW
SMC
MEJ

3

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
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 09/28/2022 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:

22-KH-398
E-NOTIFIED
40th District Court (Clerk)
Honorable Nghana Lewis (DISTRICT JUDGE)
Honorable Bridget A. Dinvaut (Respondent)

MAILED
Shawn McKinney #74274 (Relator)
Allen Correctional Center
3751 Lauderdale Woodyard Road
Kinder, LA 70648

• Complete Items 1, 2, and 3.
• Prtnt your name and address on 1he reverse
so that we can retum the card to you.
• Attach this cmd to 1he back of the mallplece,
or on the front If apace permits.
1. Ar11de~ to:
ShaWJLMcKinney #74274
AllemCorrcctional Center
3751 Lauderdale Woodyard Road ••
Kinder, LA 70648
22-KH-398 09-28-22J~)

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PS Form 3811, July 2015 PSN 7530-02-ooG-9063