Christina Lambert Versus Christopher Stinson, Warden, Louisiana Transitional Center for Women

• Court: Louisiana Court of Appeal
• Decided: January 26, 2024
• Docket: 23-KH-608
• Status: Unknown

Opinion

CHRISTINA LAMBERT NO. 23-KH-608

VERSUS FIFTH CIRCUIT

CHRISTOPHER STINSON, WARDEN, COURT OF APPEAL LOUISIANA TRANSITIONAL CENTER FOR WOMEN STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 19-1900, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

January 26, 2024

JUDE G. GRAVOIS JUDGE

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois

WRIT GRANTED; RULING GRANTING OUT-OF-TIME APPEAL REVERSED; RULING DENYING APCR WITHOUT PREJUDICE VACATED; REMANDED WITH INSTRUCTIONS JGG SMC FHW COUNSEL FOR DEFENDANT/RELATOR, CHRISTINA LAMBERT Stanislav L. Moroz

COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA Thomas J. Butler

, CHRISTOPHER STINSON, WARDEN, LOUISIANA TRANSITIONAL CENTER FOR WOMEN Christopher Stinson GRAVOIS, J.

Relator, Christina Lambert, seeks this Court’s supervisory review of the trial

court’s November 30, 2023 ruling which denied in part and granted in part her

application for post-conviction relief (“APCR”). For the following reasons, we:

(1) grant relator’s writ application; (2) reverse the portion of the trial court’s ruling

which granted relator an out-of-time appeal of her convictions and sentences; (3)

vacate the portion of the trial court’s ruling which dismissed without prejudice

relator’s APCR seeking review of the ruling revoking her probation; and (4)

remand the matter to the district court for consideration of the merits of relator’s

APCR challenging her probation revocation.

FACTS AND PROCEDURAL BACKGROUND

On May 20, 2019, relator pled guilty to one count of possession with the

intent to distribute heroin, in violation of La. R.S. 40:966(A); one count of

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

and three counts of distribution of cocaine, in violation of La. R.S. 40:967(A). On

that same day, the trial court sentenced relator to twenty years imprisonment at

hard labor on the possession with the intent to distribute heroin count, and ten

years imprisonment at hard labor on each of the remaining counts, with all of the

sentences to run concurrently. The trial court then “suspend[ed] imposition of all

those sentences” and placed relator on thirty-six months of active probation. She

did not appeal.

On April 26, 2022, a motion and an order for a hearing to revoke relator’s

probation was filed with the district court. On July 21, 2022, the district court

granted relator’s request for a continuance “to give the Defendant more time to

complete the conditions of probation.” However, on October 5, 2022, relator’s

probation officer filed a subsequent motion and an order for a hearing to revoke

probation after relator failed multiple drug tests. Following a revocation hearing

23-KH-608 1 on October 20, 2022, the district court revoked relator’s probation and sentenced

relator to the original sentences.

Relator, through counsel, filed an APCR with the district court on November

13, 2023. In it, relator challenged her probation revocation. Additionally, relator

requested an out-of-time appeal of her sentence. On November 30, 2023, the

district court granted relator’s request for an out-of-time appeal, stating:

Under the provisions of La C.Cr.P. art. 930.8(A) an out-of-time appeal may be sought within two years after the finality of the conviction and sentence. The petitioner has lost the right to appeal by simply giving notice. In such cases, the proper procedure, now completed, for obtaining an out-of-time appeal is to file an application for post-conviction relief, specifically requesting an out-of-time appeal. State v. Counterman, 475 So.2d 336 (La 1985). The petitioner is within the time to file such a request, which will be granted.

In doing so, the district court ordered the Clerk of Court to prepare and transmit

relator’s record for appeal to this Court. The district court also set a return date for

“75 days from the date of this order.” Finally, the district court ordered relator’s

APCR “DISMISSED WITHOUT PREJUDICE.”

On December 14, 2023, relator filed a notice of intent with the district court,

with a sole assignment challenging the district court’s dismissal of her APCR

without prejudice. On that same date, relator also filed a pleading, captioned as

“Motion to Address Merits of Post-Conviction Application Challenging Probation

Revocation While Appeal of Sentence is Pending,” with the district court. On

December 29, 2023, the district court set a return date for January 3, 2024, as

requested by relator. With respect to relator’s “Motion to Address Merits of Post-

Conviction Application Challenging Probation Revocation While Appeal of

Sentence is Pending,” on December 29, 2023, the district court issued the

following order: “The defendant seeks post-conviction review while the case is on

appeal. Under the procedural posture of this case and upon the showing made, the

court will deny this motion.”

23-KH-608 2 ANALYSIS

Grant of out-of-time appeal

First, we find that the trial court erred in granting relator’s APCR in part

when it granted relator’s request for an out-of-time appeal. Upon review, for the

following reasons, we find that relator’s request in her APCR for an out-of-time

appeal was untimely.

The appropriate procedural remedy for a defendant seeking to exercise her

right to appeal after her conviction and sentence become final is a timely-filed

APCR seeking an out-of-time appeal. State v. Gray, 04-1272 (La. App. 5 Cir.

4/26/05), 902 So.2d 1060, 1061. La. C.Cr.P. art. 930.8 provides that APCRs,

including requests for out-of-time appeals, must be filed within two years from the

date that a defendant’s conviction and sentence become final, unless certain

specific exceptions apply.

The imposition of a sentence has the effect of finality on a proceeding as

evident from the long-standing jurisprudence that a conviction cannot be appealed

as a final judgment until a sentence has been imposed. State v. Chapman, 471

So.2d 716 (La. 1985). La. C.Cr.P. art. 871(A) defines a “sentence” as “the penalty

imposed by the court on a defendant upon a plea of guilty, upon a verdict of guilty,

or upon a judgment of guilt.” La. C.Cr.P. art. 893(A)(3) expressly provides that a

suspended sentence “shall be regarded as a sentence for the purpose of granting or

denying a new trial or appeal.” Accordingly, relator’s sentences became final two

years after her appeal delays expired on or about thirty days from May 20, 2019,

the date of her guilty pleas and sentencing.

This Court has recognized that the trial court does not have the authority to

grant an untimely application for an out-of-time appeal absent showing an

exception to the time limitation as provided for by La. C.Cr.P. art. 930.8. See State

v. Russell, 14-841 (La. App. 5 Cir. 1/28/15), 167 So.3d 917, 919, writ denied sub

23-KH-608 3 nom. State ex rel. Russell v. State, 15-472 (La. 12/7/15), 180 So.3d 1279, where the

defendant filed a motion for an out-of-time appeal, approximately twenty-five

months after his conviction and sentence became final, which the trial court,

construing the motion as an APCR, granted. This Court dismissed the defendant’s

appeal, finding that the trial court lacked jurisdiction to grant the defendant’s

motion for an out-of-time appeal, as it was untimely filed and because the

defendant did not allege any of the exceptions provided under La. C.Cr.P. art.

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

Supreme Court held that the “courts below” erred by considering the merits of the

defendant’s State v. Crosby, 338 So.2d 584 (La. 1976), reservation in an out-of-

time appeal granted years after the finality of the defendant’s conviction and

sentence; State v. Mickel, 03-795 (La. App. 5 Cir. 12/9/03), 864 So.2d 661, writ

denied sub nom. State ex rel. Mickel v. State, 04-2515 (La. 6/17/05), 904 So.2d

692, where this Court dismissed the defendant’s appeal as untimely because the

defendant’s APCR seeking an out-of-time appeal was untimely filed.

In the instant case, although relator’s case appears in a different procedural

posture as the cases cited above, relator was not within her time limitation to seek

an out-of-time appeal of her convictions and sentences, as it was not timely filed

within two years after her appeal delays expired on or about thirty days from May

20, 2019, the date of her guilty pleas and sentencing. Nor do any of the exceptions

set out in La. C.Cr.P. art. 930.8(A)(1), (2), (3), or (4) apply, because relator’s

November 13, 2023 request for an out-of-time appeal did not rest on newly-

discovered evidence, or an unknown interpretation of constitutional law, her

application was filed after October 1, 2001, and she was not sentenced to death.

As such, we find that the district court lacked jurisdiction to grant relator’s

untimely request in her APCR seeking an out-of-time appeal of her convictions

and sentences absent the showing of an exception to the time limitation provided in

23-KH-608 4 La. C.Cr.P. art. 930.8. See State v. Clark, 18-519 (La. App. 5 Cir. 12/27/18), 263

So.3d 957, 959-60, citing State v. Daigle, 593 So.2d 676 (La. App. 3 Cir. 1991),

writ denied, 604 So.2d 980 (La. 1992). Furthermore, appellate courts may raise

the time-bar of La. C.Cr.P. art. 930.8 sua sponte. See Carlin v. Cain, 97-2390 (La.

3/13/98), 706 So.2d 968. Because relator made no such showing of an exception

to the time limitation provided in La. C.Cr.P. art. 930.8, we find that the district

court erred in granting relator’s untimely request for an out-of-time appeal of her

convictions and sentences.

Accordingly, we GRANT this writ application and REVERSE the district

court’s ruling insofar as it granted relator an out-of-time appeal of her convictions

and sentences.

Dismissal of APCR without prejudice

While there is no right of appeal from a ruling revoking probation (See La.

C.Cr.P. art. 912), in State v. Broussard, 21-1470 (La. 1/12/22), 330 So.3d 306, 307

(per curiam), the Louisiana Supreme Court construed the applicant’s motion to

correct an illegal sentence, filed within two years of the ruling revoking his

probation, as a timely filed APCR by which relator could seek review of his

probation revocation. Also, in State ex rel. Clavelle v. State, 02-1244 (La.

12/12/03), 861 So.2d 186, 187, the Supreme Court indicated that claims of

improper probation revocation may be presented in post-conviction proceedings

filed within two years of the revocation.

Here, relator timely sought review of her probation revocation after her

probation was revoked on October 20, 2022 by filing an APCR with the district

court on November 13, 2023.

Accordingly, we VACATE the district court’s ruling insofar as it dismissed

relator’s APCR without prejudice and REMAND the matter to the district court

23-KH-608 5 for consideration of the merits of relator’s APCR challenging her probation

revocation.

DECREE

For the foregoing reasons, relator’s writ application is GRANTED. The

portion of the trial court’s ruling which granted relator an out-of-time appeal of her

convictions and sentences is REVERSED. Further, the portion of the trial court’s

ruling which dismissed without prejudice relator’s APCR seeking review of the

ruling revoking her probation is VACATED, and the matter is REMANDED to

the district court for consideration of the merits of relator’s APCR challenging her

probation revocation.

WRIT GRANTED; RULING GRANTING OUT-OF- TIME APPEAL REVERSED; RULING DENYING APCR WITHOUT PREJUDICE VACATED; REMANDED WITH INSTRUCTIONS

23-KH-608 6 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. WISEMAN 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 JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY JANUARY 26, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KH-608 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE NANCY A. MILLER (DISTRICT JUDGE) STANISLAV L. MOROZ (RELATOR) THOMAS J. BUTLER (RESPONDENT)

MAILED CHRISTOPHER STINSON (OTHER) LOUISIANA TRANSITION CENTER FOR WOMEN 1005 WEST GREEN STREET TALLULAH, LA 71282