HYMEL v. LOCK5 (2021)

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.

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 App. 5 Cir. 1/14/21) (unpublished writ disposition).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 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.

SUSAN M. CHEHARDY, CHIEF JUDGE