MONTANA HYMEL VERSUS LOCK5, L.L.C.
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MONTANA HYMEL NO. 20-KH-374 VERSUS FIFTH CIRCUIT LOCK5, L.L.C. COURT OF APPEAL STATE OF LOUISIANA January 14, 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 EMILE R. ST. PIERRE, DIVISION "C", NUMBER 16,7491 Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg GRANTED FOR LIMITED PURPOSE Defendant/relator, Montana Hymel, seeks review of the district court’s September 21, 2020 denial of his timely-filed application for post-conviction relief in which he requested an out-of-time appeal. On March 12, 2018, defendant pled guilty to vehicular homicide pursuant to a plea agreement in which defendant agreed that the trial court would determine his 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 of the sentence served without the benefit of parole, probation, or suspension of sentence. At sentencing, the district court informed defendant of the time period for filing an APCR but did not mention the time delays for filing a motion for appeal or the right to appeal his sentence. Relator did not file a motion for appeal. 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, 20-KH-374 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. Accordingly, we vacate the district court’s September 21, 2020 judgment and grant this 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. Gretna, Louisiana, this 14th day of January, 2021. SJW FHW HJL 2 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 BUCHHOLZ STEPHEN J. WINDHORST HANS J. LILJEBERG JOHN J. MOLAISON, JR. JUDGES FIFTH CIRCUIT 101 DERBIGNY STREET (70053) POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 www.fifthcircuit.org FIRST DEPUTY CLERK MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF (504) 376-1400 (504) 376-1498 FAX 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 01/14/2021 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: 20-KH-374 E-NOTIFIED 23rd Judicial District Court (Clerk) Honorable Emile R. St. Pierre (DISTRICT JUDGE) Grant L. Willis (Respondent) Emily Posner (Relator) Christopher N. Walters (Respondent) J. Taylor Gray (Respondent) MAILED James E. Boren (Relator) Attorney at Law 830 Main Street Baton Rouge, LA 70802 Honorable Jeffrey M. Landry (Respondent) Attorney General Louisiana Department of Justice 1885 North 3rd Street 6th Floor, Livingston Building Baton Rouge, LA 70802
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