Summary
In Clark, the Court found that trial counsel for the defendant failed to file a motion for appeal following his conviction.
Summary of this case from State v. BrownOpinion
No. 2019-KP-1077
05-01-2020
STATE of Louisiana v. Tory N. CLARK
Granted. There is a constitutional right to appeal (or to other review on the record) in criminal cases in Louisiana when the defendant is to be subjected to imprisonment or fine. La. Const. Art. I § 19 (1974) ; State v. Simmons , 390 So.2d 504 (La. 1980). When the defendant loses his constitutional right to appeal without fault on his part, a district court has the inherent authority to grant the limited relief of an out-of-time appeal. See State v. Counterman , 475 So.2d 336 (La. 1985).
In addition, although there is no federal right to appeal, the United States Supreme Court has recognized that a defense attorney's fault in failing to perfect a timely appeal constitutes ineffective assistance of counsel and is a denial of a defendant's constitutional right to due process. Evitts v. Lucey , 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985). "A system of appeal as of right is established precisely to assure that only those who are validly convicted have their freedom drastically curtailed. A State may not extinguish this right because another right of the appellant—the right to effective assistance of counsel—has been violated." Evitts , 469 U.S. 387, 399–400, 105 S.Ct. at 838, 83 L.Ed.2d 821.
Here, trial counsel for defendant failed to file a motion for appeal following defendant's conviction. Defendant lost his constitutional right to an appeal through no fault of his own. Therefore, to remedy this potential denial of due process, we remand to the court of appeal to address defendant's appeal on the merits. Seegenerally State v. Wagner , 07-0860 (La. 3/14/08), 976 So.2d 706.