State v. Simmons, 67244
| Decision Date | 10 November 1980 |
| Docket Number | No. 67244,67244 |
| Citation | 390 So.2d 504 |
| Parties | STATE of Louisiana v. Lee Arthur SIMMONS. |
| Court | Louisiana Supreme Court |
Sam N. Gregorio, Gregorio & Frazier, Shreveport, for defendant-relator.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Carmouche, Dist. Atty., James C. McMichael, William B. Faust, III, James F. McKay, III, Asst. Dist. Attys., for plaintiff-respondent.
Defendant, Lee Arthur Simmons, was convicted on June 16, 1977, at a bench trial of aggravated battery, in violation of LSA-R.S. 14:34. He was sentenced to ten years at hard labor. No appeal was taken by defendant's counsel from the conviction and sentence, and Simmons now contends that he did not waive his right to appeal.
More than one year after trial, on August 22, 1978, Simmons applied for a transcript so that he could appeal his conviction. The trial court was ordered to furnish the transcript upon payment of costs in advance, but it was discovered that the recordings had been destroyed in a fire at the court reporter's home on January 31, 1978. Simmons commenced habeas corpus proceedings, contending that he had been denied effective assistance of counsel and that the unavailability of the trial record constituted a denial of his right to appeal. The trial court held that defendant had waived his right to appeal, relying primarily on an affidavit by Simmons' trial attorney.
William Lowe, Simmons' court appointed attorney, executed an affidavit on August 15, 1979, two years after trial. The affidavit states that Lowe advised Simmons of his right to appeal on the date of sentencing but Simmons did not request an appeal. Lowe was later contacted by Jeanetta Lewis, Simmons' "common law wife", who advised him in three telephone conversations that another attorney had been hired.
An evidentiary hearing was ordered and held. The trial court found that defendant had waived his right to appeal, and denied his request for an out of time appeal. A writ was granted to review that decision.
The issue is whether Simmons intelligently and knowingly waived his right to appeal.
Simmons was aware that appeal was a possibility. He testified that he told his lawyer to appeal immediately after he was sentenced. According to Simmons, his lawyer replied that he would talk to him upstairs in the parish jail, but Simmons never saw him again. Simmons was then placed in maximum security in the Caddo Correctional Institute and did not have access to a telephone.
At the hearing on March 20, 1980, three years after trial, attorney Lowe in effect testified contrary to his earlier affidavit stating:
(Emphasis added.)
Since the affidavit was not a contemporaneous record, there is no reason to give it greater weight than the later testimony. At the hearing, Lowe candidly admitted that it was possible Simmons had mentioned an appeal to him at the sentencing. Lowe was of the opinion that an appeal from a bench trial would be fruitless. Simmons' testimony that he asked for an appeal is uncontradicted.
The testimony of Simmons' mother, sister and former paramour was that he repeatedly asked them about his appeal after he was incarcerated. Jeanetta Lewis, married in the interim to a Mr. Perkins, said she had the impression from Lowe that Simmons' case would be appealed.
Simmons first asked for a trial transcript in August of 1978. The court reporter's affidavit that the record was destroyed by fire is dated April 16, 1979. Although the fire took place on January 31, 1978, there is no evidence that Simmons knew about it prior to the date of the affidavit. The trial transcript request cannot be characterized as resulting from the fire.
The Louisiana Constitution of 1974 provides in Article 1, § 19, for the...
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State Of La. v. Bordelon
...is personal to the defendant, State v. Marcell, 320 So.2d 195, 198 (La.1975), and the waiver “must be an informed one.” State v. Simmons, 390 So.2d 504, 506 (La.1980). Thus, while a defendant may appeal to the supreme court from a judgment in a capital case in which a sentence of death actu......
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...is personal to the defendant, State v. Marcell, 320 So.2d 195, 198 (La. 1975), and the waiver "must be an informed one." State v. Simmons, 390 So.2d 504, 506 (La. 1980). Thus, while a defendant "may appeal to the supreme court from a judgment in a capital case in which a sentence of death a......
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State v. Dill
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