STATE v. ROGERS (2020)

WRIT GRANTED FOR LIMITED PURPOSE

Relator, Glenn Rogers, seeks this Court's supervisory review of the trial court's October 23, 2019 ruling which denied his application for post-conviction relief seeking an out-of-time appeal.

On August 16, 2017, relator pled guilty to the amended charge of manslaughter in violation of La. R.S. 14:31 (count one) and aggravated assault with a firearm in violation of La. R.S. 14:37.4 (count two). On that same day, relator was sentenced to 40 years imprisonment at hard labor on count one and ten years imprisonment at hard labor on count two, with the sentences to run consecutively. Relator did not file a motion for an appeal.

On August 20, 2018, within two years of his guilty pleas and sentencing, relator filed an application for post-conviction relief asserting the following four claims: 1) relator unknowingly and unintelligently entered into his guilty pleas; 2) failure of the trial court to advise relator of the applicable maximum and minimum sentencing range; 3) double jeopardy; and 4) ineffective assistance of counsel. On August 27, 2018, the trial court dismissed relator's application for post-conviction relief without prejudice and informed relator that he may file an application for post-conviction relief requesting an out-of-time appeal pursuant to La. C.Cr.P. arts. 924.1 and 930.8(A).

A review of the official record reveals that the August 27, 2018 order was served on the “warden designee” at “AVC/RLCC, 1630 Prison Road, Cottonport, LA 71327.” Though there is a Sheriff's return dated September 7, 2018, it cannot be determined whether this order was provided to relator. Subsequently, the 24th Judicial District Court, Criminal Records Department, sent relator a copy of the August 27, 2018 order, on February 8 and April 11, 2019, in response to his “Re: Status Inquiry Into Application For Post Conviction Relief in Case No[.]: 16-6689” pleadings filed on February 8 and April 11, 2019. However, both of the aforementioned mailings by the 24th Judicial District Court, Criminal Records Department, were returned without effecting service with a February 19, 2019 notation indicating that relator “Moved from RLCC” and an April 20, 2019 notation indicating that the “wrong DOC [number]for offender” presumably appeared on the August 27, 2018 Order.

On September 11, 2019, relator filed a writ of mandamus with this Court ordering the trial court to rule on his application for post-conviction relief filed on August 20, 2018. This Court denied the writ after finding that the trial court had ruled thereon on August 27, 2018. This Court also attached a copy of that ruling for relator's review.

On October 17, 2019, relator filed a second application for post-conviction relief requesting an out-of-time appeal. In his application, relator noted that he submitted multiple notices of inquiry as to the status of his previously-filed application for post-conviction relief. When he did not receive responses to his notices of inquiry, relator filed the writ of mandamus with this Court. He maintained that the first time he received a copy of the August 27, 2018 order denying his original application for post-conviction relief was when he received this Court's ruling on his writ of mandamus. He alleged that his mother contacted the Clerk of Court and was told the reason he never received a copy of his ruling was because they had the wrong DOC number listed for him.

On October 23, 2019, the trial court denied relator's request for an out-of-time appeal finding that it was time barred under La. C.Cr.P. art. 930.8. The trial court noted that the DOC number listed on the order for service was the same DOC number provided by relator, listed throughout his first application for post-conviction relief, and also listed in his later correspondence to the Clerk of Court.

In this writ application, relator argues that his original application for post-conviction relief should have never been denied. He also argues that because he was never properly served with a copy of the trial court's ruling denying his first application for post-conviction relief, the trial court erred in applying the timeliness provision of La. C.Cr.P. art. 930.8. He argues that he submitted several inquiries to the trial court seeking an update on the status of his application for post-conviction relief and thus exercised his due diligence in his case.

In light of the facts and circumstances presented above, we find that the trial court erred in denying relator's second application for post-conviction relief seeking an out-of-time appeal as time barred under La. C.Cr.P. art. 930.8. Relator filed his original application for post-conviction relief on August 20, 2018, which was before the expiration of the two-year deadline set forth in La. C.Cr.P. art. 930.8. There is no evidence in the official record that a copy of the August 27, 2018 order was ever delivered to relator, even after he exercised due diligence in attempting to discover the status of his first application for post-conviction relief.

Accordingly, we vacate the trial court's October 23, 2019 denial of relator's second application for post-conviction relief seeking an out-of-time appeal and remand the matter to the trial court for reconsideration of relator's request for an out-of-time appeal in accordance with State v. Counterman, 475 So.2d 336 (La. 1985).