State of Louisiana Versus Cornelius K Ellis

STATE OF LOUISIANA NO. 24-KA-96

VERSUS FIFTH CIRCUIT

CORNELIUS K ELLIS COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 17-7016, DIVISION "D"
HONORABLE JOSEPH A. MARINO, III, JUDGE AD HOC, PRESIDING

December 04, 2024

TIMOTHY S. MARCEL
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Timothy S. Marcel

APPEAL DISMISSED
TSM
FHW
JGG

COUNSEL FOR DEFENDANT/APPELLANT,
CORNELIUS ELLIS
Holli A. Herrle-Castillo

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Lindsay L. Truhe

MARCEL, J.

Defendant, Cornelius K. Ellis, appeals his conviction and sentence for sexual

battery upon a known juvenile under the age of thirteen in violation of La. R.S.

14:43.1. On appeal, defendant argues that the trial court erred in admitting “other

crimes” evidence at trial. We pretermit discussion of the assigned error, finding

that defendant’s appeal is untimely. Accordingly, defendant’s appeal is dismissed.

Procedural Background

On December 19, 2017, defendant was charged by bill of information with

sexual battery upon a juvenile under the age of thirteen. Trial began on November

19, 2019 and concluded on November 20, 2019 with the jury finding defendant

guilty as charged. Thereafter, on December 2, 2019, the trial court sentenced

defendant to fifty years imprisonment at hard labor without benefit of parole,

probation, or suspension of sentence. On the same date, defendant was given

notice that a multiple offender hearing was set for December 16, 2019. After

numerous continuances, the State filed a multiple offender bill of information

alleging relator was a second-felony offender on August 13, 2021. On November

15, 2023, the State dismissed the multiple offender bill of information.

In the interim, on July 1, 2021, defendant filed a pro se Motion for Appeal,

requesting to appeal the final judgment of the court on “11, 2019.” On July 7,

2021, the trial court denied defendant’s motion, stating the following:

Because of the passage of time, defendant has lost the right to
appeal by simply giving notice. The proper procedure for obtaining
an out-of-time appeal is to file an application for post-conviction
relief. State v. Counterman, 475 So.2d 336 (La. 1985). The
defendant may request an out-of-time appeal by filing an application
for post-conviction relief within two years after his conviction and
sentence have become final. La. C.Cr. P. art. 930.8(A).

Thereafter, on October 25, 2021, defendant filed a pro se First Uniform

Application for Post-Conviction Relief (APCR). On October 28, 2021, the trial

court dismissed defendant’s APCR without prejudice, stating:

24-KA-96 1

The defendant files the three-page form but fails to state any
claim or ground or to provide any facts or list of witnesses. The form
itself provides numerous instructions of mandatory inclusions, such as
a copy of the commitment order and a list of all claims with factual
basis.
This application for post-conviction relief contains a large
number of deficiencies. The petitioner has failed to articulate any
issue with any particularity. Failure of the petitioner to brief with
particularity his allegations in the post-conviction application is a
failure to follow the statutorily required form. The application is also
deficient under Article 926 in that it fails to contain a copy of the
judgment of conviction.

On November 17, 2023, almost four years after defendant’s conviction and

sentence in this case, defendant’s counsel filed a Motion for Appeal which the trial

court granted on November 29, 2023. Also, on December 4, 2023, defendant’s

counsel filed another Motion for Appeal, which the trial court granted on

December 5, 2023.1

Discussion

The delays for making a motion for an appeal of criminal convictions and

sentences are found in La. C.Cr. P. art 914, which provides that a motion for an

appeal in a criminal matter must be made no later than “[t]hirty days after the

rendition of the judgment or ruling from which the appeal is taken” or “[t]hirty

days from the ruling on a motion to reconsider sentence filed pursuant to Article

881.1, should such a motion be filed.” If a defendant fails to move for an appeal

within this time, the conviction and sentence become final, and the defendant loses

the right to obtain an appeal by simply filing a motion for appeal in the trial court.

State v. Williams, 16-32 (La. App. 5 Cir. 8/24/16), 199 So.3d 1205, 1209.

The appropriate procedural remedy for a defendant seeking to exercise his

right to appeal after his conviction and sentence become final is a timely-filed

1
In its brief, the defense initially states that it filed a motion for appeal on November 17, 2023, which was
granted November 29, 2023. The defense acknowledges that another nearly identical motion for appeal was filed on
December 4, 2023, and was granted on December 5, 2023. The defense asserts that either order renders jurisdiction
proper in this court. In its brief, the State addressed the timeliness issue asserting that defendant did not timely and
properly perfect his appeal.

24-KA-96 2

application for post-conviction relief seeking an out-of-time appeal. State v.

Brown, 16-141 (La. App. 5 Cir. 9/22/16), 202 So.3d 585, 588. La. C.Cr.P. art.

930.8 provides that applications for post-conviction relief, including requests for

out-of-time appeals, must be filed within two years from the date that a defendant’s

conviction and sentence become final, unless certain specific exceptions apply. Id.

The trial court does not have jurisdiction to grant an untimely application for an

out-of-time appeal absent the showing of an exception to the time limitation as

provided for by Article 930.8. State v. Russell, 14-841 (La. App. 5 Cir. 1/28/15),

167 So.3d 917, 919, writ denied sub nom. State ex rel. Russell v. State, 15-0472

(La. 12/7/15), 180 So.3d 1279.

Time delays for filing an appeal contained in La. C.Cr.P. art. 930.8 are

jurisdictional. State v. Clark, 18-519 (La. App. 5 Cir. 12/27/18), 263 So.3d 957,

960.2 This Court may address the untimeliness of an application for post-

conviction relief on its own motion. State ex rel. Glover v. State, 93-2330 (La.

9/5/95), 660 So.2d 1189, 1201-02.

In this case, defendant was convicted on November 20, 2019 and sentenced

on December 2, 2019. He did not file a motion to reconsider sentence, nor did he

orally move to appeal or file a written motion for appeal within thirty days after his

sentencing pursuant to La. C.Cr.P. art. 914. Defendant’s pro se motion for appeal

2
We find Clark, supra, distinguishable from this case. In Clark, following his conviction for second degree
murder, the defendant filed a motion for post-verdict judgment of acquittal, a motion for new trial, and a motion for
appeal. The defendant’s motion for appeal was granted, his other two motions were subsequently denied, and he
was sentenced. This Court found that the trial court had no jurisdiction over the defendant’s post-trial motions after
it granted his appeal. This Court vacated the defendant’s sentence and remanded so the trial court could rule on the
defendant’s post-trial motions. The trial court denied the defendant’s motions. More than two years later, the
defendant’s motion for out-of-time appeal was granted. This Court stated that the defendant’s motion for out-of-
time appeal was untimely under La. C.Cr.P. art. 930.8 because it was filed more than two years after the judgment of
conviction and sentence became final and because the exceptions in Article 930.8 were inapplicable. As such, this
Court dismissed the defendant’s appeal. The defendant filed a petition for supervisory writ. The Louisiana Supreme
Court found that trial counsel for the defendant failed to file a motion for appeal following his conviction. It further
found that the defendant lost his constitutional right to an appeal through no fault of his own. The Louisiana
Supreme Court found that to remedy this potential denial of due process, it would remand the case to the court of
appeal to address the defendant’s appeal on the merits. See State v. Clark, 19-1077 (La. 5/1/20), 295 So.3d 935. In
this case, defendant had the opportunity to address the deficiencies identified by the trial court, but failed to take
further action or refile his APCR. Additionally, unlike Clark, the procedural posture of this case differs, as
defendant’s case had not previously been before this Court on appeal.

24-KA-96 3

was filed on July 1, 2021, years beyond the appeal delay provided in Article 914.

Thus, defendant’s only recourse was to seek reinstatement of his appeal rights in

the trial court, by an application for post-conviction relief seeking an out-of-time

appeal. See State v. Counterman, supra.

In this case, defendant first tried to obtain an appeal pro se on July 1, 2021,

nineteen months after sentencing. Defendant explained that his family contacted

his prior attorney and was told that his case was not finished due to the State

informing him of multiple offender filings. The trial judge denied defendant’s pro

se motion for appeal as untimely and advised defendant that he may request an out-

of-time appeal through the filing of an APCR.3

Subsequently, defendant timely filed a pro se APCR on October 25, 2021,

which the trial court dismissed without prejudice due to numerous deficiencies,

including failure to state a claim for relief. We also note that defendant’s APCR

did not request an out-of-time appeal, nor did he claim he was being denied a

direct appeal.

The record shows that defendant did not re-file his APCR within the two-

year prescriptive period. Further, the record does not show, nor does the defendant

aver, that he meets any exception to the time limitation requirements provided by

La. C.Cr.P. art. 930.8. We find the trial court lacked jurisdiction to grant

defendant’s counseled motion for appeal filed in November 2023 almost four years

after defendant’s conviction and sentence.

Conclusion

Accordingly, we dismiss defendant’s appeal as untimely and decline to

address the assignment of error raised in this appeal.

APPEAL DISMISSED

3
In this instance, defendant was not advised at sentencing of the appeal delays and of the two-
year prescriptive period for filing an application for post-conviction relief. However, the trial court
informed defendant of the relevant time period in his written ruling.

24-KA-96 4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL 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
DECEMBER 4, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-KA-96
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE JOSEPH A. MARINO, III (DISTRICT JUDGE)
HONORABLE GLENN B. ANSARDI (DISTRICT JUDGE)
HOLLI A. HERRLE-CASTILLO (APPELLANT) ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
LINDSAY L. TRUHE (APPELLEE)
ASSISTANT DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053