Opinion
NO. 19-KH-460
10-28-2019
TERRENCE BLUNT v. DARRELL VANNOY, WARDEN
Susan Buchholz First Deputy Clerk IN RE TERRENCE BLUNT APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E. ADRIAN ADAMS, DIVISION "G", NUMBER 15-5586 Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg
WRIT GRANTED; ORDER VACATED; REMANDED FOR FURTHER PROCEEDINGS
Relator, Terrence Blunt, seeks review of the trial court's August 16, 2019 Order denying his application for post-conviction relief seeking an out-of-time appeal.
On October 5, 2017, relator pled guilty to two counts of sexual battery of a child under 13 in violation of La. R.S. 14:43.1. The trial court sentenced defendant to 25 years imprisonment at hard labor on each count to run concurrently.
On March 28, 2019, relator filed a pro se application for post-conviction relief asking the trial court to grant him an out-of-time appeal. Relator argued that he recently learned his defense counsel did not file a motion for appeal despite relator requesting that he do so. Relator did not set forth any issues he intended to raise on appeal. On August 16, 2019, the trial court denied relator's request and found no reason in the record to grant post-conviction relief or an out-of-time appeal.
On September 24, 2019, relator filed a pro se writ application with this Court seeking review of the trial court's order denying his request for an out-of-time appeal. In addition to arguing that his counsel failed to file a motion for appeal, relator claimed for the first time that the trial court committed a reversible error by accepting his guilty plea without adjudicating his competency to proceed after appointing a sanity commission.
Normally, this Court will not consider issues that a party fails to first raise with the trial court. However, this Court may do so in the interests of justice. See Uniform Rules, Courts of Appeal Rule 1-3. Our review of the official record indicates that on April 14, 2017, defense counsel filed a second motion to appoint a sanity commission, which the trial court granted on April 17, 2017. The matter was originally set for a hearing on May 17, 2017, but was continued to May 31, 2017. The minute entry from May 31, 2017 indicates that defense counsel waived relator's presence and "informed the court that they are changing the Defendant's 'not guilty' plea to 'not guilty by reason of insanity'." The minute entry then noted that the case was set for motions and trial on June 29, 2017 and July 24, 2017, respectively. The record indicates that these dates were rescheduled several times and a court status date was set on October 5, 2017, when defendant pled guilty as described above. We were not able to locate a minute entry in the official record indicating that the trial court held a competency hearing with respect to the second sanity commission it appointed or that it rendered a second determination as to relator's competency prior to accepting relator's guilty plea. The record does not contain transcripts from these proceedings in order to confirm the accuracy of the minute entries.
Defense counsel filed a prior motion to appoint a sanity commission on February 4, 2016, and on May 18, 2016, the trial court found relator incompetent to proceed, and relator was committed to the custody of the Department of Health and Hospitals. Thereafter, on January 11, 2017, the parties entered into a joint stipulation that relator was competent to proceed and that he intended to change his plea of not guilty to not guilty by reason of insanity.
La. C.Cr.P. art 642 provides that when the question of a defendant's mental capacity to proceed is raised, no further steps in the criminal prosecution can proceed, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed. The consequence of the failure to resolve the issue of a defendant's competency after appointing a sanity commission is "either nullification of the conviction and sentence or a nunc pro tunc hearing to determine competency retrospectively." See State v. Pullen, 19-4, p. 7 (La. App. 5 Cir. 8/7/19), 2019 WL 3677889.
In State v. Counterman, 475 So.2d 336, 339 (La. 1985), the Louisiana Supreme Court held that an application for post-conviction relief in the trial court is the appropriate procedural vehicle for a defendant who has failed to appeal to seek reinstatement of his right to appeal. Id. at 339. The Supreme Court explained as follows:
[T]he trial court may grant post conviction relief reinstating defendant's constitutional right to appeal after the time for appealing has elapsed, after due consideration of such factors as the length of the delay in defendant's attempt to exercise the right and the adverse effect upon the state caused by the delay, in cases such as those in which the defendant was not substantially notified at sentencing of his right to appeal or those in which the defense attorney was at fault in failing to file or perfect a timely appeal.
Id. at 340.
Based on the foregoing, we grant relator's writ application and vacate the trial court's August 16, 2019 Order denying relator's request for an out-of-time appeal. The district court is ordered to hold a hearing at which it will determine whether applicant is entitled to an out-of-time appeal under State v. Counterman, supra. Relator shall be represented by counsel at the hearing, and prior to the hearing, the State may file any response it deems appropriate. See State v. Carter, 19-788 (La. 10/8/19), 2019 WL 5058607.
Gretna, Louisiana, this 28th day of October, 2019.
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