Montana Hymel Versus Lock5, L.L.C.
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Opinion
MONTANA HYMEL NO. 21-KH-704
VERSUS FIFTH CIRCUIT
LOCK5, L.L.C. COURT OF APPEAL
STATE OF LOUISIANA
December 16, 2021
Susan Buchholz First Deputy Clerk
IN RE MONTANA HYMEL
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ST JAMES, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE STEVEN C. TUREAU, DIVISION "D", NUMBER 16,7491
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
WRIT GRANTED; MATTER REMANDED WITH INSTRUCTIONS
Relator, Montana Hymel, seeks review of the district court’s denial of his
application for an out-of-time appeal. For the reasons that follow, we grant relator
the relief requested.
On March 12, 2018, relator pled guilty to vehicular homicide, in violation of
La. R.S. 14:32.1. The plea agreement did not include a specific sentence; rather, it
provided that the district court would determine relator’s sentence after reviewing a
pre-sentence investigation report. On July 9, 2018, the district court sentenced
relator to fifteen years imprisonment at hard labor with five years to be served
without benefit of parole, probation, or suspension of sentence. At sentencing, the
district court informed relator of the time period for filing an APCR but did not
advise him of the time delays for filing a motion for appeal or of the right to appeal
his sentence. Relator did not file a motion for appeal.
21-KH-704 However, on May 7, 2020, relator filed an application for post-conviction
relief in the district court requesting an out-of-time appeal, which was denied on
September 21, 2020. Relator thereafter sought review in this Court, and on
January 14, 2021, this Court vacated the district court’s judgment and granted
relator’s writ “for the limited purpose of remanding this matter to the district court
to hold a Counterman hearing at which it will determine whether relator is entitled
to an out-of-time appeal.” Hymel v. Lock5, L.L.C., 20-KH-374 (La. App. 5 Cir.
1/14/21) (unpublished writ disposition). In doing so, this Court stated:
Upon considering the circumstances of this case, particularly that defendant’s plea agreement did not include a specific sentence and that defendant was not informed of his right to appeal his sentence or the time period for filing an appeal, we find that defendant should have a hearing under the rule of State v. Counterman, 475 So.2d 336 (La. 1985) to determine whether he is entitled to an out-of-time appeal. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from appealing a sentence imposed in conformity with a plea agreement and set forth in the record at the time of the plea. This limitation, however, does not apply when a specific sentence or sentencing range is not agreed to by both parties as part of a plea agreement. State v. Morales, 12-21 (La. App. 5 Cir. 10/30/12), 102 So.3d 1038, 1041. There is a constitutional right in Louisiana to an appeal. La. Const. art. 1, § 19; State v. Arceneaux, 07-692 (La. App. 5 Cir. 3/25/08), 983 So.2d 148, 150-51, writ denied, 08-0892 (La. 11/10/08), 996 So.2d 1067. Only the defendant can waive this right and any waiver of right to appeal must be an informed one. Id.
Pursuant to this Court’s directive, the district court conducted a Counterman
hearing on October 13, 2021. After considering the testimony and evidence
presented, the district court denied relator’s request for an out-of-time appeal,
finding relator was “substantially notified of his right to appeal.”
Having thoroughly reviewed relator’s writ application, including the
transcripts from the guilty plea proceeding, the sentencing proceeding, and the
Counterman hearing, and the applicable law and jurisprudence, we find that the
record does not support the district court’s determination that relator was
“substantially notified of his right to appeal.” Defendant did not plead guilty in
2 exchange for a specified sentence. As such, he was constitutionally entitled to
appeal his sentence. While relator was advised of his rights at the guilty plea
proceeding, he had not yet been sentenced at that time. The transcript from the
sentencing proceeding clearly reflects that when relator was sentenced, he was
only advised of the time delays for filing an application for post-conviction relief.
He was not advised that he could appeal his sentence or of the time delays for
appealing. As there is nothing in the record to indicate that defendant was advised
of his right to appeal his sentence or that he knowingly and voluntarily waived this
right, we find that the district court abused its discretion in denying relator’s
application for an out-of-time appeal.
Accordingly, we vacate the district court’s October 13, 2021 judgment and
remand the matter to the district court with instructions to grant relator’s request
for an out-of-time appeal with regard to the imposed sentence.
Gretna, Louisiana, this 16th day of December, 2021.
RAC FHW MEJ
3 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. 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 DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 12/16/2021 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
21-KH-704 E-NOTIFIED 23rd Judicial District Court (Clerk) Honorable Steven C. Tureau (DISTRICT JUDGE) Emily Posner (Relator) Grant L. Willis (Respondent)
MAILED Lock5, L.L.C. (Respondent) James E. Boren (Relator) 14235 Lockhart Lane Attorney at Law Walker, LA 70785 830 Main Street Baton Rouge, LA 70802 • Complete items 1, 2, and 3. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpieoe, or on the front if space permits. 1 ArHrl<> ArlrlrA!:.<:ed to: D. Is delivery address different from item 1? D Yes lf YES, enter delivery address below: O No Lock5, L.L.C. 14235 Lockhart Lane Walker, T A 70785 2 1-KH-·;;;-+ 12-16-21
3. Service Type D Priority Mail Express® D Adult Signature D Registered Mail™ II lllllll llll Ill 111111111111111111111111111111 D Adult Signature Restricted Delivery 0 Registered Mall Restricted ~ifiedMail® jlellvery 9590 9402 2434 6249 3627 82 0 Certified Mail Restricted Delivery li!(Retum Receipt for Merchandise --------------~'------10 Collect on Delivery -2. ArticleJ1lumber (Transfer from service labeO D Collect on Delivery Restricted Delivery 0 Signature Conflrmatlon™ 1 Insured Mail D Signature Confirmation 701b 2070 aaaa 0954 b137 I Insured Mail Restricted Delivery (over$500) Restricted Delivery
PS Form 3811, July 2015 PSN 7530-02-000-9053 Domestic Return Receipt • Complete· items 1, 2, and 3. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to:
James E.
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