State of Louisiana v. Landell L. Davis

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-478

STATE OF LOUISIANA

VERSUS

LANDELL L. DAVIS

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 05-230447
HONORABLE JOHN E. CONERY, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Billy H. Ezell, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

APPEAL DISMISSED.

Angela Odinet
District Attorney - 16th JDC
415 S. Main Street
St. Martinville, LA 70582
(337) 394-2220
COUNSEL FOR APPELLEE:
State of Louisiana

Peggy Sullivan
Louisiana Appellate Project
P.O. Box 2806
Monroe, LA 71207
(318) 855-6038
COUNSEL FOR APPELLANT:
Landell L. Davis

Gremillion, Judge.

This is an appeal by the Defendant, Landell L. Davis.

Pursuant to a plea agreement, the Defendant pled guilty on November 16,

2006, to vehicular homicide, hit and run driving, and unauthorized use of a motor

vehicle. The plea agreement provided that a sentencing hearing was to be held at

which the State and the Defendant could present evidence. Further, the sentences

were to run concurrently, and the State agreed not to charge the Defendant as a

habitual offender. At the Defendant’s May 11, 2007, sentencing, he was sentenced

on the conviction of vehicular homicide to serve twenty-five years at hard labor,

ten of which is to be without benefit of parole, probation, or suspension of

sentence. For this conviction, the court also imposed a $2,000.00 fine and

requested as a condition of parole that the Defendant be ordered to make restitution

to the victim’s family for funeral expenses. For each of his convictions of hit and

run driving and unauthorized use of a motor vehicle, the court sentenced the

Defendant to ten years at hard labor. The court ordered that the sentences run

concurrently.

On September 24, 2012, the Defendant filed a Motion for Out of Time

Reconsideration of Sentence, to which the court ordered the State to file a

response. The State objected on the basis of untimeliness and further noted that the

Defendant was represented by counsel and “the sentence imposed was pursuant to

a sentence hearing.” Two separate orders dated October 25, 2012, and November

16, 2012, were issued denying the motion for the reasons outlined in the State’s

answer.

The Defendant subsequently filed an application for post-conviction relief

seeking an out-of-time appeal contending that he was assured by his attorney that

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an appeal would be filed, as requested by the Defendant. However, since counsel

made no oral or written motion to reconsider his sentence or appeal, and the time

for seeking an appeal had lapsed, the Defendant sought reinstatement of his right to

appeal. Specifically, the Defendant stated:

Petitioner’s counsel . . . made no oral or written motion to reconsider
his sentence or a motion for appeal and the time for obtaining an
appeal as a matter of right has since elapsed.

....

Petitioner is avowing that he expressed his desire to have his attorney,
prefect[sic] an appeal, who assured him that one would be filed.
However, as the court record will reflect that no appeal was filed, and
time has since elapsed. Petitioner is expressing his desire to appeal
his conviction. As such, he is presenting this application for post-
conviction relief establishing his right to appeal, in accordance to
La.C.Cr.P. 924, et seq.

....

In the foregoing application, the petitioner prays that this
Honorable Court will reinstate his rights to appeal the conviction and
sentence imposed, pursuant to La.C.Cr.P. 914.

This post-conviction relief application is date stamped December 10, 2013,

beneath the judge’s order of that date requiring the State to respond to the

application. The State did file a response; however, it appears it came after the

court’s January 6, 2014, granting of the appeal.

The supreme court has held that it is improper to consider the merits of a

defendant’s appeal where an out-of-time appeal is untimely granted:

Granted. The courts below erred by considering the merits of the
defendant’s Crosby reservation, see State v. Crosby, 338 So.2d 584
(La.1976), in an out-of-time appeal granted years after finality of the
defendant’s conviction and sentence. See La.C.Cr.P. art. 930.8(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 .....”); State ex rel. Glover v. State, 93-2330, p. 22
(La.9/5/95), 660 So.2d 1189, 1201 (“[T]he fact that the trial court
reached the merits in an untimely filed application for post conviction
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relief . . . [does] not preclude [an appellate court] from raising Art.
930.8's time bar.”). The decision of the court of appeal is therefore
reversed and the defendant’s conviction and sentence are reinstated.

State v. Theard, 04-1212 (La. 6/17/05), 904 So.2d 681, 681.

On June 9, 2014, this court issued an order requiring the Defendant to show

cause by brief only why the appeal should not be dismissed as untimely citing

La.Code Crim.P. art. 930.8 and State v. Celestine, 04-1130 (La.App. 3 Cir. 2/2/05),

894 So.2d 1197, writ denied, 05-1401 (La. 2/17/06), 924 So.2d 1001.

Two responses were received. The first, filed by the Defendant’s attorney,

acknowledges that more than two years lapsed between the finality of his

conviction and sentence and the Defendant’s request for an out-of-time appeal.

Accordingly, appellate counsel attempts to establish an exception to the two year

time limitation of La.Code Crim.P. art. 930.8. Louisiana Code of Criminal

Procedure Article 930.8 provides in pertinent part:

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 attorney.

Essentially, the Defendant, through counsel, claims neither the trial court nor

counsel advised the Defendant on the record of his right to appeal his sentence.

Rather, the Defendant points out that at the time of his guilty plea, he was advised

there would be no appeal.

A review of the transcript of the guilty plea proceeding indicates the

following statement was made by the trial court in this regard:

Q. If you lost your case, you could appeal to a higher court.
Again, the help and assistance of a lawyer could be provided for you
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free of charge if you couldn’t afford your own. When you plead
guilty, you give up all those rights. There will be no trial, there will
be no jury, there will be no witnesses, there will be no appeal. You
are agreeing to be sentenced by the Court at your sentencing hearing
in accordance with law and in accordance with the evidence presented
there. Do you understand?

A. Yes sir.

At the sentencing proceeding, the court informed the Defendant that he had

two years from the finality of his conviction to apply for post-conviction relief.

The Defendant notes a guilty plea waives one’s right to appeal his or her

conviction but does not waive the right to appeal a sentence imposed without the

benefit of a sentencing agreement. According to the Defendant, his attorney did

not know the Defendant maintained a constitutional right to appeal. Further, the

Defendant points out that at the conclusion of the sentencing proceeding, counsel

moved to withdraw; however, the record does not reflect a ruling on this request.

He claims he has established an exception to La.Code Crim.P. art. 930.8,

specifically subsection (A)(1).

The Defendant’s allegation that he and his attorney were unaware of his

right to appeal is contradicted by his statement in his post-conviction relief

application “avowing that he expressed his desire to have his attorney, prefect [sic]

an appeal, who assured him that one would be filed.” Additionally, although the

Defendant was advised by the trial court of the time limit in which he must seek

post-conviction relief, he did not timely seek an out-of-time appeal via post-

conviction relief. Finally, even assuming the Defendant and his counsel were

unaware of his right to appeal, the Defendant cites no jurisprudential authority

establishing that this qualifies as an exception under subparagraph (A)(1) of

La.Code Crim.P. art. 930.8.

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The second response to the rule to show cause was filed pro se. In it, the

Defendant claims his convictions for vehicular homicide and hit and run driving

violate the prohibition against double jeopardy. He proceeds to argue the merits of

his double jeopardy claim without any mention of how the claim qualifies as an

exception to the time limitation set forth in La.Code Crim.P. art. 930.8. In State v.

Hardy, 09-176 (La.App. 3 Cir. 6/3/09) (unpublished opinion), this court held:

WRIT DENIED: Relator’s claim of double jeopardy does not
involve illegality of his sentences, but is a claim of trial error properly
cognizable in an application for post-conviction relief, if at all.
However, Relator’s claim was filed more than two years after his
convictions and sentences became final and Relator fails to allege an
exception to the time limitation set out in La.Code Crim.P. art. 930.8.
Consequently, Relator’s double jeopardy claim is precluded from
review. Furthermore, La.Code Crim.P. art. 930.3 provides no basis
for review of claims of excessiveness or other sentencing errors in a
post-conviction relief application. State ex rel. Melinie v. State, 93-
1380 (La. 1/12/96), 665 So.2d 1172.

For the reasons discussed, we find an exception to the time limitation of

La.Code Crim.P. art. 930.8 has not been established. Accordingly, we dismiss the

Defendant’s appeal.

APPEAL DISMISSED.

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