Jerrod A. Wilson v. Carlton L. Duhon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-368

JERROD A. WILSON

VERSUS

CARLTON L. DUHON, ET AL.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. 917-07
HONORABLE ANNE LENNAN SIMON, DISTRICT JUDGE AD HOC

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Oswald A. Decuir, Michael G. Sullivan, and Billy Howard Ezell,
Judges.

AFFIRMED.

Jerrod A. Wilson
Pro Se
Louisiana State Penitentiary
Gator 1-R-8
Angola, Louisiana 70712
Plaintiff/Appellant

Richard M. Arceneaux
Attorney at Law
Post Office Box 1108
Jennings, Louisiana 70549
(337) 824-8000
Counsel for Defendant/Appellee:
Carlton L. Duhon

Wendell R. Miller
Attorney at Law
Post Office Box 1469
Jennings, Louisiana 70546
(337) 824-8885
Counsel for Defendant/Appellee:
Lynette Latiolais

SULLIVAN, Judge.

Jerrod Wilson, in proper person, appeals a judgment of the district court which

granted his application for writ of mandamus. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Wilson, proceeding pro se and in forma pauperis, filed an application for

writ of mandamus in the Thirty-First Judicial District Court seeking to obtain without

charge a transcript of the trial in the matter entitled State of Louisiana v. Jerrod

Wilson, Docket Number CR-325-91. Following a hearing at which Mr. Wilson was

present,1 the trial court granted the application for writ of mandamus finding that

Mr. Wilson was entitled to a copy of the requested transcript upon his furnishing the

Clerk of Court with payment of $209.05 for the cost of copying the transcript.

Written judgment was rendered on December 18, 2007.

Mr. Wilson filed a notice of intent to apply for supervisory writs with this court

on December 19, 2007. In a decision rendered on March 6, 2008, this court denied

the writ on the basis that the judgment at issue was a final, appealable judgment.2

Nevertheless, having found that Mr. Wilson’s application for supervisory writs would

have been timely filed as a motion for appeal of the judgment granting the writ of

mandamus, we considered the writ application as a timely-filed motion for appeal and

remanded the matter to the trial court to allow Mr. Wilson to apply with the mandates

of the Louisiana Code of Civil Procedure governing appeals. Id. On March 27, 2008,

the trial court signed an order granting Mr. Wilson an appeal from the judgment

1
Mr. Wilson is an inmate at the Louisiana State Penitentiary in Angola.
2
See our unpublished opinion in Wilson v. Duhon, bearing Docket Number 08-146 (La.App.
3 Cir. 3/6/08).

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granting the writ of mandamus and stating that no costs were due for the appeal

because Mr. Wilson had been deemed a pauper.

Mr. Wilson’s writ application contained the following issues and questions for

review:

1. Whether the custodian/counsel Mr. Arceneaux, was
required to prove petitioner was provided with a copy of
trial transcripts records of CR-325-91, through the criminal
proceeding as was required when he filed his appeal?

2. Whether 31st Judicial District Court erred by not ever
considering that petitioner was entitled by law to inspect
transcripts CR-325-91 public record while he was at its
courthouse December 11, 2007?

DISCUSSION

The first circuit discussed the difference between an inmate seeking a free copy

of the district attorney’s file and an inmate seeking documents under the Public

Records Law, La.R.S. 44:1, et seq., as well as the appropriate procedure to be

followed in each instance, in State ex rel. McKnight v. State, 98-2258 (La.App. 1 Cir.

12/3/98), 742 So.2d 894. The court wrote:

If the inmate . . . desires to seek a free copy of a district attorney’s
file, he should file a motion for production of the documents in the
criminal proceeding, and he must demonstrate a particularized need. For
the inmate requesting documents in anticipation of a collateral attack on
his conviction, he cannot make a showing of particularized need absent
a properly filed application for postconviction relief which sets out
specific claims of constitutional errors requiring the requested
documentation for support. State ex rel. Bernard v. Criminal District
Court Section “J”, 94-2247 (La.4/28/95), 653 So.2d 1174. Under
La.Code Crim. P. art. 822(B) (added by 1997 La. Acts No. 1321, § 1),
“if at any time after sentence is imposed, the defendant seeks the
production of all or any portion of the district attorney’s file in a
criminal proceeding, the request for production shall be presented by
written motion, which shall be tried contradictorily with the district
attorney.”

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Id. at 895-96. If, on the other hand, the inmate is making a request under the

Public Records Law and not attempting to secure a free copy of the district attorney’s

file, the court directed as follows:

A “person” who wants to examine public records must make the request
to the custodian of the records. See La. R.S. 44:31 & 44:32. An
individual in custody after sentence following felony conviction who
has exhausted his appellate remedies is permitted access to public
records if the request is limited to grounds upon which the individual
could file for postconviction relief under La.Code Crim. P. art. 930.3.
La. R.S. 44:31.1. Section 31.1 does not prevent an inmate from seeking
records simply because the three-year time limitation for the filing of
postconviction relief has passed. State ex rel. Leonard v. State, 96-1889
(La.6/13/97), 695 So.2d 1325. See La.Code Crim. P. art. 930.8. If a
request for public records is denied by the custodian, before seeking
relief from this court, the person must first institute civil proceedings for
a writ of mandamus at the trial court level. See La. R.S. 44:35(A).
Should the person prevail, he should be prepared to pay the regular
service fees for copies of the documents. See State ex rel. Nash v. State,
604 So.2d 1054 (La.App. 1st Cir.1992). After the trial court issues a
ruling in the civil proceeding, the person may seek a civil appeal of the
trial court’s action, if he desires. See La. R.S. 44:35(C).

Id. at 895.

At the hearing on Mr. Wilson’s writ of mandamus, the trial court referred to an

earlier judgment rendered in the underlying criminal proceeding. In that judgment,

the trial court ruled that Mr. Wilson was not entitled to a free copy of the sought-after

record because more than three years had passed since his conviction and sentence

had become final and because he had not alleged that his claim fit within one of the

exceptions listed in La.Code Crim.P. art. 930.8. Mr. Wilson applied for supervisory

writs to this court. We denied the writ, finding no error in the trial court’s ruling. See

our unpublished opinion in State v. Wilson, bearing Docket Number 07-383 (La.App.

3 Cir. 5/24/07). Mr. Wilson then filed an application for supervisory writs with the

supreme court. On April 25, 2008, the supreme court denied the writ, stating that

Mr. Wilson must first address his request to the records’ custodians. See State ex rel.

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Wilson v. La., 07-1458 (La. 4/25/08), 978 So.2d 360. Accordingly, that judgment is

now final, and Mr. Wilson is precluded from arguing that he is entitled to a free copy

of the record.

On the other hand, we note that Mr. Wilson followed the proper procedure in

requesting the sought-after record via a writ of mandamus filed pursuant to the Public

Records Law. Based on the holding of McKnight, however, we conclude that the trial

court did not err in finding that, while Mr. Wilson was entitled to a copy of the

requested record, he was required to pay the cost of copying the record.

Mr. Wilson’s first question for review, regarding whether the custodian of the

requested records was required to prove that he was given a copy of his trial transcript

in the criminal proceeding, is moot given the fact that he was not entitled to receive

a free copy of his transcript due to the timing and circumstances of his request.

With regard to Mr. Wilson’s second question for review, we have reviewed the

transcript of the December 11, 2007 hearing and note that Mr. Wilson did not request

to inspect the record in CR-325-91 when he was present at the Jefferson Davis Parish

courthouse for the hearing on his writ of mandamus. We have also reviewed the

pleadings in this matter, and they do not contain a written request to inspect the

record. Uniform Rules—Courts of Appeal, Rule 1-3 provides that appellate courts

will review only issues that were submitted to the trial court, unless the interest of

justice clearly requires otherwise. In light of our holding that Mr. Wilson is entitled

to a copy of the record upon payment of the copying fees, we will not consider the

issue raised in Mr. Wilson’s second question for review.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

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AFFIRMED.

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