State of Louisiana Versus John D. Martin, III

Fifth Circuit Court of Appeal
State of Louisiana

No. 26-KH-416

STATE OF LOUISIANA
VERSUS
JOHN D. MARTIN, III

IN RE JOHN D. MARTIN, III
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUVENILE COURT,
PARISH OF ST CHARLES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE CONNIE
M. AUCOIN, DIVISION "C", NUMBER 22,159

September 17, 2026

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and John J. Molaison, Jr.

WRIT DENIED

Relator, John D. Martin, III, seeks this Court’s supervisory review of the trial
court’s ruling which denied his motion for post-conviction relief seeking an out-of-
time appeal. For the following reasons, we find no error in the trial court’s ruling
and thus deny the writ application.

PROCEDURAL BACKGROUND

On December 4, 2023, relator was found guilty by a judge of domestic abuse
battery by strangulation and possession of a firearm by a convicted felon. On
December 18, 2023, the trial court sentenced relator to three years imprisonment at
hard labor on the domestic abuse battery conviction and fifteen years imprisonment
at hard labor without the benefit of parole, probation, or suspension of sentence on
the possession of a firearm by a convicted felon conviction. Both sentences were
ordered to be served concurrently. At that time, relator did not file a motion for an
appeal.

On June 8, 2026, relator filed a Motion for Out-of-Time Appeal with the trial
court based on his claim that he was never advised of his right to appeal, citing State
v. Counterman, 475 So.2d 336 (La. 1985). On June 29, 2026, the trial court denied
the motion with a hand-written notation: “(1) See minutes 12/18/23 (2) [La.] C.Cr.P.
art. 914.”1

On July 30, 2026, relator filed a notice of intent with the trial court. On August
4, 2026, the trial court set a return date for September 4, 2026. On September 3,
2026, relator’s writ application was stamped as filed with this Court. In it, relator
re-urges his claim for an out-of-time appeal.

ANALYSIS

In State v. Counterman, 475 So.2d at 339, the Louisiana Supreme Court held
that an application for post-conviction relief filed in the trial court is the
appropriate procedural vehicle for a defendant who has failed to appeal to seek
reinstatement of his right to appeal. In doing so, the Supreme Court concluded:

[T]he trial court may grant post conviction relief reinstating
defendant’s constitutional right to appeal after the time for appealing
has elapsed, after due consideration of such factors as the length of
the delay in defendant’s attempt to exercise the right and the adverse
effect upon the state caused by the delay, in cases such as those in
which the defendant was not substantially notified at sentencing of
his right to appeal or those in which the defense attorney was at fault
in failing to file or perfect a timely appeal.

Id. at 340.

In the instant case, relator, who represented himself at his bench trial, was
found guilty on December 4, 2023, and was sentenced on December 18, 2023.

1
The minute entry from December 18, 2023 states:
Defendant present in court. PSI filed under seal. Defendant sworn. Victim
Impact State by Angela Martin. Defendant makes a statement to the Court.
Statement by ADA Byrd. Sentenced as follows: Ct.1 Domestic Abuse Battery
by Strangulation – 3 years Dept. of Corrections at hard labor, to run concurrent
with Ct. 2. Ct.2 Convicted Felon Possessing a Firearm or Carrying a Concealed
Weapon – 15 years Dept. of Corrections at hard labor without the benefit of
probation, parole or suspension of sentence. Credit for time served. Fined
$1,000.00 plus costs, suspended. Defendant advised of 2 year limitation to file
for post-conviction relief. Uniform Commitment order filed herein. Court
denies defendant’s request to return his firearm.
Under La. C.Cr.P. art. 914, a motion for an appeal in a criminal matter must be made no
later than thirty days after the rendition of the judgment or ruling from which the appeal is taken,
or thirty days from the ruling on a motion to reconsider sentence filed pursuant to La. C.Cr.P. art.
881.1.

According to relator, he made an oral request for an appeal. However, the December
18, 2023 minute entry does not reflect that relator filed a motion to reconsider his
sentence, nor did he orally move to appeal. Neither did relator file a written motion
for an appeal within thirty days of December 18, 2023, pursuant to La. C.Cr.P. art.
914.2 Instead, relator filed a Motion for Out-of-Time Appeal on June 8, 2026. Thus,
even if relator’s Motion for Out-of-Time Appeal was construed as an APCR,3 it is
untimely pursuant to La. C.Cr.P. art. 930.8, which provides in pertinent part: “No
application for post-conviction relief including applications which seek an out-of-
time appeal, shall be considered if it is filed more than two years after the judgment
of conviction and sentence has become final.” Furthermore, relator has not alleged
that any of La. C.Cr.P. art. 930.8(A)’s exceptions to the time bar apply in his case. 4

2
Relator also appears to fault his attorney for failing to move for an appeal. However,
relator chose to represent himself at trial. Thus, relator has not shown that any of the
Counterman criteria apply to his case.
3
Courts should “look through the caption of the pleadings in order to ascertain their
substance and to do substantial justice.” See State v. Moses, 05-787 (La. App. 5 Cir. 5/9/06), 932
So.2d 701, 706 n.3, writ denied, 06-2171 (La. 4/5/07), 954 So.2d 140.
4
La. C.Cr.P. art. 930.8(A) states:
A. No application for post conviction relief, including applications which seek
an out-of-time appeal, shall be considered if it is filed more than two years
after the judgment of conviction and sentence has become final under the
provisions of Article 914 or 922, unless any of the following apply:
(1) The 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 prior attorneys. Further, the petitioner shall prove that
he exercised diligence in attempting to discover any post conviction
claims that may exist. “Diligence” for the purposes of this Article is a
subjective inquiry that shall take into account the circumstances of the
petitioner. Those circumstances shall include but are not limited to the
educational background of the petitioner, the petitioner’s access to
formally trained inmate counsel, the financial resources of the
petitioner, the age of the petitioner, the mental abilities of the petitioner,
or whether the interests of justice will be served by the consideration of
new evidence. New facts discovered pursuant to this exception shall be
submitted to the court within two years of discovery. If the petitioner
pled guilty or nolo contendere to the offense of conviction and is
seeking relief pursuant to Article 926.2 and five years or more have
elapsed since the petitioner pled guilty or nolo contendere to the offense
of conviction, the petitioner shall not be eligible for the exception
provided for by this Subparagraph.
(2)(a) Facts that were known to any attorney for the petitioner shall be
presumed to have been known by the petitioner unless the petitioner
rebuts this presumption by clear and convincing evidence. Facts that
were contained in the record of the court proceedings concerning the
conviction challenged in the application shall be deemed to have
been known by the petitioner. The provisions of this Subparagraph
are applicable if the petitioner proves both of the following:

Accordingly, on the showing made, we find no error in the trial court’s ruling
denying relator’s application for post-conviction relief seeking an out-of-time
appeal. The writ application is denied.

Gretna, Louisiana, this 17th day of September, 2026.

JGG
SMC
JJM

(i) That the petitioner exercised due diligence in attempting to
discover any post conviction claims or facts upon which any
claims may be based.
(ii) That exceptional circumstances exist, the interest of justice will
be served by consideration of the claim based upon the
previously unknown facts, and the newly discovered facts in
support of the claim are sufficiently compelling that manifest
injustice will result if the claim is not considered.
(b) The petitioner shall have the burden of proving the provisions of this
Subsubparagraph by clear and convincing evidence.
(3) The claim asserted in the petition is based upon a final ruling of an
appellate court establishing a theretofore unknown interpretation of
constitutional law and petitioner establishes that this interpretation is
retroactively applicable to his case, and the petition is filed within one
year of the finality of such ruling.
(4) The application would already be barred by the provisions of this
Article, but the application is filed on or before August 1, 2027, and the
date on which the application was filed is within two years after the
judgment of conviction and sentence has become final.
(5) The petitioner qualifies for the exception to timeliness in Article 926.1.
(6) The petitioner qualifies for the exception to timeliness in Article 926.2.

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. TRAN
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 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 09/17/2026 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:

26-KH-416
E-NOTIFIED
29th Juvenile Court (Clerk)
Honorable Connie M. Aucoin (DISTRICT JUDGE)
No Attorney(s) were ENOTIFIED

MAILED
John D. Martin, III #320411 (Relator) Honorable Joel T. Chaisson, II
Louisiana Workforce - DeQuincy (Respondent)
DeQuincy, LA 70633 District Attorney
Twenty-Ninth Judicial District Court
Post Office Box 680
Hahnville, LA 70057