State of Louisiana v. Robert Wagner, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

KA07-127, KA07-128, and KA07-129

STATE OF LOUISIANA

VERSUS

ROBERT WAGNER, JR.

**********

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NOS. 04-228, 04-1730, 05-1805
HONORABLE LORI ANN LANDRY

**********

BILLY H. EZELL
JUDGE

**********

Court composed of John D. Saunders, Jimmie C. Peters, and Billy H. Ezell, Judges.

APPEAL DISMISSED AND REMANDED WITH INSTRUCTIONS.

Hon. J. Phillip Haney
District Attorney
300 Iberia Street, Suite 200
New Iberia, LA 70560
(337) 369-4420
COUNSEL FOR APPELLEE:
State of Louisiana

Sherry Watters
Louisiana Appellate Project
P.O. Box 58769
New Orleans, LA 70158-8769
(504) 723-0284
COUNSEL FOR APPELLANT:
Robert Wagner, Jr.

Ezell, Judge.

On February 1, 2007, this court issued a rule to show cause why the appeals in

the above-captioned cases should not be dismissed due to untimely perfection. In

response, Defendant, Robert Wagner, filed a brief with this court arguing that this

court should consider the trial court’s order of appeal as an order granting an out-of-

time appeal. In the alternative, Defendant requested this court to remand the matter

so that Defendant may amend his motion for appeal for compliance with the law

relating to post-conviction relief applications. We hereby order that Defendant’s

motion for appeal be treated as an application for post-conviction relief and remand

the cases to the trial court for further proceedings.

On November 16, 2005, Defendant pled guilty to the following offenses: three

counts of distribution of cocaine, in violation of La.R.S. 40:967(A), one count of

possession of cocaine with intent to distribute, in violation of La.R.S. 40:967(A) and

(C), one count possession of a schedule III CDS, testosterone, in violation of La.R.S.

40 968(C), and one count of a schedule III CDS, mandrolon, in violation of La.R.S.

40:968(C). On August 24, 2006, subsequent to his plea agreement, Defendant

received the following sentences: ten years at hard labor, six years suspended for the

three counts of distribution of cocaine conviction, twelve years at hard labor, six

years suspended for the possession of cocaine with intent to distribute conviction, and

five years at hard labor for the possession of schedule III CDSs, testosterone and

mandrolon convictions, all sentences to run concurrently. On August 28, 2006,

Defendant filed a motion to reconsider sentence which was denied on August 30,

2006. Defendant then filed a motion for appeal on October 10, 2006, which the

district court granted.

Under La.Code Crim.P. art. 914, a motion for appeal must be made no later

than thirty days after either the rendition of the judgment from which the appeal is

taken or the ruling on a motion to reconsider sentence filed pursuant to La.Code

Crim.P. art. 881.1. Pursuant to La.Code Crim.P. art. 914, Defendant alleges that he

orally motioned to appeal the court’s ruling at sentencing based on the following

exchange between his attorney, Mr. Boustany, and the court:

Mr. Boustany: You Honor, the defendant has the right to file a Motion
for Reconsideration and Motion for Appeal. He is indigent. I would ask
that the Court find him indigent and appoint counsel at this point.

The Court: I don’t appoint counsel at this point. He would take care of
that with the Indigent Defender Board in the project. I don’t do that
because I don’t know that that will be done. If he files it, then we will
deal with it.

Mr. Boustany: I---

The Court: I know. You are asking for another lawyer to be appointed,
but I have not seen that motion. If he wants to file it, and that is
something that you are going to do for him, and you ask that that be
done. Ask that it be done when the right of appeal is filed, as a Motion
to Reconsider. Because if you are considering that an oral motion to
reconsider, I can rule on that now.

This court finds the language used by Defendant’s trial counsel was not sufficient to

constitute a motion for appeal.

Because Defendant failed to file his motion for appeal within the time provided

by La.Code Crim.P. art. 914, his conviction and sentence became final. Once

Defendant’s conviction and sentence became final, he could no longer obtain an

appeal by simply filing a motion for appeal. State v. Labiche, 96-433 (La.App. 3 Cir.

7/31/96), 680 So.2d 77. Thus, Defendant must first obtain reinstatement of his right

to appeal by way of a properly filed application for post-conviction relief. Id.; State

v. Dixon, 00-516 (La.App. 3 Cir. 6/7/00), 768 So.2d 99; State v. Counterman, 475

So.2d 336 (La.1985).

In Dixon, this court stated:

State v. Counterman, 475 So.2d 336 (La.1985) sets forth the
procedure which should be followed to obtain the right to file an

2

out-of-time appeal. In Counterman, the defendant was sentenced on
February 10, 1983. No appeal was filed within the time period set forth
in Article 914. On April 10, 1984, the defendant filed a motion for an
out-of-time appeal. The trial court granted the motion without a hearing
and without affording the district attorney an opportunity to respond to
the motion. The First Circuit Court of Appeal dismissed the appeal “on
the basis that the trial court was without authority or jurisdiction to grant
an out-of-time appeal on an ex parte motion.” Id. at 338. The defendant
filed a motion for out-of-time appeal with the court of appeal, which was
denied. The defendant then filed a motion for out-of-time appeal with
the supreme court. The supreme court held that the defendant lost his
right to obtain an appeal by simply filing a motion for an appeal after the
time delays had run--not because the trial court was divested of
jurisdiction but “because the conviction and sentence became final when
the defendant failed to appeal timely.” Id. (footnote omitted). The
supreme court held that the proper procedure for obtaining an
out-of-time appeal is by filing an application for post conviction relief
pursuant to La.Code Crim.P. arts. 924-930.7. [footnote omitted.] In so
ruling, the supreme court found several advantages to following this
procedure. Primarily, the district attorney would be allowed an
opportunity to oppose a request, and the defendant would be afforded an
evidentiary hearing to prove his allegations.

An out-of-time appeal is appropriately granted when the trial
court has determined it is warranted “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.” Id. at
340. The supreme court ultimately concluded that the defendant's
motion for an out-of-time appeal filed in the trial court should have been
treated as an application for post conviction relief and remanded the
case to the trial court for consideration as such. Following Counterman,
we find that Defendant’s January 18, 2000 motion for appeal should
have been treated by the trial court as an application for post conviction
relief requesting an out-of-time appeal. We note that La.Code Crim.P.
art. 930.8 now provides that the time delays for filing an application for
post conviction relief are applicable to requests for out-of-time appeals,
unless an exception is made. Therefore, Defendant shall be permitted
an opportunity to amend his motion to comply with the requirements of
Articles 924-930.8. By doing so, the State will then be given an
opportunity to contest the granting of an appeal.

Dixon, 768 So.2d at 101-102.

Defendant’s appeal is hereby dismissed and this case is remanded to the trial

court for further proceedings. Defendant is to be permitted an opportunity to amend

his motion for appeal to comply with the requirements of La.Code Crim.P. arts. 924-

3

930.8, and the State is to be given an opportunity to contest the granting of an out-of-

time appeal.

APPEAL DISMISSED AND REMANDED WITH INSTRUCTIONS.

4