State of Louisiana v. Cardell K. Fusilier

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-828

STATE OF LOUISIANA

VERSUS

CARDELL K. FUSILIER

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 100348
HONORABLE EDWARD D. RUBIN, JUDGE

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BILLY H. EZELL
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Billy H. Ezell, Judges.

APPEAL DISMISSED. DEFENDANT IS
PERMITTED TO FILE AN APPLICATION
FOR SUPERVISORY REVIEW WITH THIS
COURT WITHIN THIRTY DAYS OF THE
DATE OF THIS DECISION.

Hon. Michael Harson
District Attorney – 15th JDC
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Cardell K. Fusilier, Pro Se
Louisiana State Prison
Camp J, Gator Unit
Angola, LA 70712

Ezell, Judge.

In 2004, Defendant, Cardell K. Fusilier, was convicted of seven offenses: five

counts of forcible rape, in violation of La.R.S. 14:42.1; one count of aggravated

kidnapping, in violation of La.R.S. 14:44; and one count of simple robbery, in

violation of La.R.S. 14:65. In November 2004, the sentencing court ordered

Defendant to serve forty years at hard labor for each of the five forcible rape

convictions, life imprisonment without benefit of parole for the aggravated kidnapping

conviction, and seven years at hard labor for the simple robbery conviction. The

district court then directed all of the sentences to run concurrently with each other and

with any other penalty Defendant was serving.

Defendant appealed, and on appeal, this court affirmed Defendant’s convictions.

State v. Fusilier, an unpublished opinion bearing docket number 05-837 (La.App. 3

Cir. 2/1/06), writ denied, 06-508 (La. 9/29/06), 937 So.2d 852. Thereafter, Defendant

continued to challenge his conviction by filing numerous pleadings with the district

court.

On January 27, 2011, Defendant filed a “Motion for Grand Jury Transcript

Proceeding.” In his pleading, Defendant alleged the prosecution had abused the grand

jury process by presenting false and misleading information at the grand jury hearing.

Defendant further claimed that the State had failed to comply with the procedural

requirements of the grand jury process by notifying Defendant that he was the target of

a grand jury investigation. Defendant added that his due process rights had been

violated because he had not been granted the same rights as the prosecutor to attend the

proceedings. The district court denied relief on January 31, 2011. On March 16, 2011,

Defendant filed a written objection to the trial court’s January 31, 2011 ruling.

Subsequently, on May 13, 2011, Defendant filed a “Motion to Produce Grand

Jury Transcripts.” In this pleading, Defendant asserted basically the same claims, with
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some additional argument, as those he presented in his earlier motion for transcripts of

the grand jury proceedings in his case. The district court denied Defendant’s second

motion on May 16, 2011. The following month, Defendant filed a “Notice of Appeal”

with the trial court stating he wished to seek review of the district court’s May 16,

2011, decision to deny Defendant’s request for production of grand jury transcripts.

The next day, the trial court granted an appeal in Defendant’s case.

Thereafter, an appeal record was lodged with this court. On July 12, 2011, this

court issued a rule to show cause why Defendant’s case should not be dismissed as it

sought review of a judgment that was not appealable. Defendant responded on July 27,

2011. In his reply, Defendant conceded that the judgment is not appealable and

requested this court to treat his appeal as a timely filed notice to seek supervisory

reviews.

Under La.Code Crim.P. arts. 912-912.1, Defendant does not have the right to

appeal the instant ruling. Therefore, Defendant’s appeal is hereby dismissed.

However, pursuant to La.Code Crim.P. art. 912.1(C), Defendant “has the right of

judicial review by application to the court of appeal for a writ of review.” Defendant is

hereby permitted to file an application for supervisory writs, in compliance with

Uniform Rules―Courts of Appeal, Rule 4, no later than thirty days from the date of

this decision. Defendant is not required to file a notice of intent to seek supervisory

review nor obtain an order setting a return date pursuant to Uniform Rules―Courts of

Appeal, Rule 4-3 as we hereby construe Defendant’s “Notice of Appeal” as a notice of

intent to seek supervisory review.

APPEAL DISMISSED. DEFENDANT IS PERMITTED TO FILE AN

APPLICATION FOR SUPERVISORY REVIEW WITH THIS COURT

WITHIN THIRTY DAYS OF THE DATE OF THIS DECISION.

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