State v. Farinas

• Decision Date: 24 November 2009
• Docket Number: No. 09-KA-396.,09-KA-396.
• Parties: STATE of Louisiana v. Paul FARINAS.
• Court: Court of Appeal of Louisiana — District of US

28 So.3d 1132

STATE of Louisiana v. Paul FARINAS.

No. 09-KA-396.

Court of Appeal of Louisiana, Fifth Circuit.

November 24, 2009.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, James

W. Adair, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

Frederick J. Kroenke, Jr., Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.

FREDERICKA HOMBERG WICKER, Judge.

In this criminal proceeding the defendant/appellant Paul Farinas appeals his manslaughter guilty plea conviction and his 30-year sentence. He asserts that his guilty plea is constitutionally and statutorily infirm. The state moved to dismiss the appeal as untimely. For the reasons that follow, we deny the motion; affirm the conviction; and, affirm the sentence. Furthermore, we have reviewed the record for errors patent and find none.¹

Motion to Dismiss Appeal

The defendant was charged by indictment with second degree murder, in violation of La. R.S. 14:30.1, allegedly occurring on September 3, 2004. On June 19, 2006, the defendant, who was represented by counsel, pleaded guilty to the amended and reduced charge of manslaughter, in violation of La. R.S. 14:31. The defendant's counsel did not seek an appeal either orally or through written notice. The trial judge granted the pro se defendant an out-of-time appeal on January 14, 2009.

Since the defendant did not file a motion to reconsider his sentence, the delay for taking an appeal elapsed 30 days after the rendition of the judgment. La. C. Cr. P. art. 914(A)(1). Following the 30-day delay, the defendant's conviction and sentence became final. State v. Counterman, 475 So.2d 336, 338 (La.1985). After the time for appealing has elapsed, the conviction and sentence are no longer subject to review under the ordinary appellate process, unless the defendant obtains the reinstatement of his right to appeal. Id. The appropriate procedural vehicle for a defendant to exercise his right to appeal, after the delay provided by Article 914 has expired, is an application for post-conviction relief. Id., 475 So.2d at 339.

La. C. Cr. P. art. 930.8 provides time limitations for filing an application for post-conviction relief, including applications which seek an out-of-time appeal. Such applications shall not be considered if filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922 (finality of judgment on appeal), unless certain exceptions apply. La. C. Cr. P. art. 930.8(A). In this case, the defendant had two years or until July 19, 2008 to file an application for post-conviction relief requesting an out-of-time appeal. The state argues that the defendant did not request an out-of-time appeal until August 7, 2008, which was 19 days past the two-year deadline for seeking reinstatement of his appellate rights through an application for post-conviction relief.

The defendant, proceeding pro se, filed a timely post-conviction application on June 23, 2008. He attached a letter to the Clerk of Court in which he stated that the correctional facility had to close the law library and he was unable to present all of the information that must accompany his application. He asked the Clerk of Court to file his June 23, 2008 application. He also stated that he would provide additional information at a later date once the law library became available. Thus, he contemplated filing supplementation to his timely-filed application. Seven days later on June 30, 2008,² before the defendant filed a supplementation, the trial court ruled on the incomplete post-conviction application by denying it. Among other things, the court ruled that the post-conviction application was improper because the defendant had not exhausted his appellate rights. The defendant sought a timely writ application to this court from that ruling. State ex. rel. Paul Farinas v. State, 08-KH-822 (La.App. 5 Cir. 12/23/08) (unpublished writ disposition). Meanwhile, the defendant filed an application for an out-of-time appeal on August 7, 2008, which the trial judge denied on August 19, 2008 as untimely and improperly filed as a motion. This court granted the writ and concluded that the defendant should have been given an opportunity to amend his later motion or his application for post-conviction relief and to set forth support for his application's timeliness. The state argues that the defendant's notice of intent to seek writs was notice only of the June 30, 2008 denial of his application for post-conviction relief and that the notice made no reference to the denial of the out-of-time appeal.

We need not address whether the August denial of the defendant's motion to seek an out-of-time appeal was properly before this court in the writ application. The August ruling is of no moment because the timeliness of this appeal turns on the effect of the June 30, 2008 ruling regarding the timely-filed application for post-conviction relief. At the time that the trial judge ruled, the defendant had noted, albeit by letter to the Clerk of Court, that he desired to supplement his application because he did not have access to a law library at the time. Following the writ disposition, on remand, the trial judge granted an out-of-time appeal.

The trial judge has discretion to allow the defendant to amend and supplement a timely-filed application for post-conviction relief. State ex. rel. Duhon v. Whitley, 92-1740 (La.9/2/94), 642 So.2d 1273. This is so even if the supplementation arises after the expiration of Article 930.8's time bar. State v. Sampson, 02-909 (La.2/14/03), 841 So.2d 747 (per curiam). Implicit in this court's ruling on the writ application is the recognition that the trial court has discretion to allow supplementation. In granting the out-of-time appeal, the trial judge concluded that the uniform application for post-conviction relief should be used in obtaining such an appeal. However, in the interest of judicial economy, the trial judge granted the out-of-time appeal. We construe the defendant's letter as a motion to supplement his post-conviction relief application. Pro se filings are subject to less stringent standards than formal pleadings filed by lawyers. State ex. rel. Egana v. State, 00-2351 (La.9/22/00), 771 So.2d 638 (per curiam) (Citations omitted). A pro se petitioner is not to be denied access to the courts for review of his case on the merits by the overzealous application of form in pleading requirements or hypertechnical interpretations of court rules. Id.

We hold that under these circumstances when the trial court rejects the defendant's timely-filed application for post-conviction relief as improper because the defendant has not yet exhausted his appellate rights and does not rule on an outstanding motion to supplement the application based on lack of access to a law library, due process requires that the relator be given his right to amend to seek an out-of-time appeal. See: State v. Williams, 000-1725, p. 8 (La.11/28/01), 800 So.2d 790, 796 (discussing due process right to appeal.). In the writ disposition, this court afforded the defendant that right. Thereafter, the trial court in the interest of judicial economy properly treated the subsequent August 7, 2008 motion for out-of-time appeal as a timely amendment or supplement to the original timely-filed application.

Accordingly, we deny the motion to dismiss the appeal.

Facts

The defendant's conviction was the result of a guilty plea. A factual basis was provided by the state at the time of the plea. The state informed the court that at trial on the merits, it would have shown that on September 3, 2004, the defendant killed his wife, Delinda Farinas, with the specific intent to kill or cause great bodily harm to her, and "pursuant to this plea agreement," at the time he committed the offense that he was acting in heat of blood and sudden passion. In addition, the following facts were taken from the hearing on the defendant's motion for a preliminary examination that was completed a few days before his guilty plea.

The preliminary examination was held on three days. At the first setting, the grand jury had not yet returned an indictment. After the grand jury returned an indictment, the matter was allotted to another trial judge who heard the matter anew. The defendant and his defense counsel were present in court for all hearing dates.

The state presented the testimony of Jefferson Parish Sheriff Officer Sergeant Donald Meunier, the lead homicide investigator, and Dr. Karen Ross, the Jefferson Parish Coroner's office forensic pathologist and assistant coroner who performed the autopsy.

Sergeant Meunier testified that officers had received a 911 call from 434 Bruce Avenue in Terrytown at approximately 6:46 AM that morning. Sergeant Meunier arrived at the scene around 8:30 AM or 8:40 AM. He saw no signs of forced entry. The nude victim was lying in a bathtub filled with water with her face, including her mouth and nose, above the water and her head resting on the back of the bathtub. Sergeant Meunier saw a pinkish froth discharge from the victim's mouth and nose. A curling iron rested on the victim's pelvic bone. The curling iron and its cord were partially submerged in the water. The cord was attached to an extension cord. By the time Sergeant Meunier arrived, other police officers had unplugged the cord. The victim's hand was cupped over the curling iron. A cloth curler used to roll hair was clipped to the back of her head. Other curlers were nearby. A mirror was propped against the toilet and angled toward the bathtub.

At the time the incident was reported, there were five children in the home. Sergeant Meunier learned that prior to his arrival, the defendant was there briefly. Later, Sergeant Meunier took video statements from the victim's eleven-year-old son...