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Date: 06-17-2018

Case Style:

STATE OF LOUISIANA VERSUS CHRISTIAN HERNANDEZ

Case Number: 18-KA-3

Judge: STEPHEN J. WINDHORST

Court: FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

Plaintiff's Attorney: Paul D. Connick, Jr.
Terry M. Boudreaux
Juliet L. Clark

Defendant's Attorney: John T. Fuller

Description: On January 27, 2014, the Jefferson Parish District Attorney filed a bill of
information charging defendant, Christian Hernandez, with armed robbery with a
firearm, in violation of La. R.S. 14:64 and La. R.S. 14:64.3 (count one) and
attempted second degree murder, in violation of La. R.S. 14:30.1 and La. R.S. 14:27
(count two). Defendant was arraigned on January 30, 2014, and pled not guilty.
On July 17, 2015, defendant withdrew his not guilty pleas and pled guilty as
charged. On July 20, 2015, the trial judge sentenced defendant to imprisonment at
hard labor for twenty-three years plus an additional five-year sentence at hard labor
pursuant to La. R.S. 14:64.3 on count one, and imprisonment at hard labor for
twenty-eight years on count two, with both sentences including the enhancement, to
be served without benefit of parole, probation, or suspension of sentence. The trial
judge also ordered those sentences to run concurrently with each other and with any
other sentences that defendant may be currently serving.
On June 6, 2017, defendant filed an Application for Post-Conviction Relief
(APCR) arguing that he was not adequately informed of the consequences of his plea
and of the minimum possible sentences. The trial judge dismissed the APCR without
prejudice and advised defendant to seek an out-of-time appeal as set forth in State v.
Counterman, 475 So.2d 336 (La. 1985). On August 1, 2017, defendant filed a notice
of intent to apply for a writ of review. On August 31, 2017, this Court granted the
writ for the limited purpose of vacating the district court’s order dismissing the
APCR, and remanding the matter to the district court with instructions to construe


18-KA-3 2
defendant’s timely filed APCR as a request for an out-of-time appeal. State v.
Hernandez, 17-KH-430 (La. App. 5 Cir. 8/31/17) (unpublished writ disposition). On
September 15, 2017, the trial judge granted defendant an out-of-time appeal and
dismissed the APCR without prejudice.
Because defendant pled guilty, the underlying facts were not fully developed
at a trial. Nevertheless, the State alleged in the amended bill of information that on
or about March 8, 2013, Christian Hernandez and his co-defendants, Kevin Rivas
and Leonardo Paredes-Morales robbed Louis Alvarado while armed with a
dangerous weapon, “to wit: a firearm as per La. R.S. 14:64.3” (count one). The State
alleged in that same amended bill of information that on March 8, 2013, Hernandez
and his co-defendant, Rivas attempted the commit second degree murder of Louis
Alvarado. During the colloquy, the State provided the following factual basis:
If the State had proceeded to trial against both Defendants1 in Case No. 14-0436 it would have proven beyond a reasonable doubt that on March 8th, 2013 that both Defendants violated Louisiana Revised Statute 14:64 and they did rob Louis Alvarado while armed with a dangerous weapon under the provision of Louisiana Revised Statute 14:64.3.

Furthermore, it would have proven beyond a reasonable doubt that both Defendants on that same date, March 8th, 2013 violated Louisiana Revised Statute 14:27:30.1 in that they did attempt to commit second degree murder of Louis Alvarado.

Your Honor, both of these offenses occurred in the Parish of Jefferson.

Defendant indicated that he committed the crimes to which he was pleading
guilty.
Assignments of Error
Defendant asserts that he has waived his right to appeal, that his application
for post-conviction relief was timely and properly filed, and the merit of his claims
should be determined after an evidentiary hearing. Defendant also asserts that his

1 The trial judge referred to defendant, Christian Hernandez, and co-defendant, Kevin Rivas.


18-KA-3 3
decision to plead guilty was based on misinformation about the rate of good-time he
would receive, and the absence of any information regarding the minimum possible
sentence. For these reasons, defendant also asserts he was denied effective
assistance of counsel. Defendant further asserts that his ineffective assistance of
counsel and invalid guilty plea claims should be addressed by the trial court.
Assignment of Error One
Defendant argues that he waived his right to appeal at the time of his guilty
plea, and therefore, his APCR was timely filed and should be addressed. On July
17, 2015, defendant pled guilty as charged, and on July 20, 2015, the trial judge
sentenced defendant. He did not appeal his convictions and sentences. As a result,
his convictions and sentences became final thirty days after he was sentenced, or on
August 19, 2015.
La. C.Cr.P. art. 924.1 provides: “[a]n application for post conviction relief
shall not be entertained if the petitioner may appeal the conviction and sentence
which he seeks to challenge, or if an appeal is pending.” The Official Comments
to La. C.Cr.P. Art. 924.1 state that “[t]his article reaffirms the post appellate nature
of the procedure. Post conviction relief is not designed to take the place of an appeal.
The petitioner must first exhaust whatever appellate rights he has.” Louisiana
jurisprudence also provides that a defendant’s appeal rights must be exhausted
before filing an application for post-conviction relief. State v. Singleton, 03-1307
(La. App. 5 Cir. 03/30/04), 871 So. 2d 596.
Defendant’s APCR was premature as he had not exhausted his appellate rights
when it was filed. As such, the trial judge did not err by granting defendant an out
of-time appeal and by dismissing the APCR without prejudice.
Assignment of Error Two
Defendant argues that misinformation about the rate of good time he would
receive and the absence of any information regarding the minimum possible


18-KA-3 4
sentences influenced his decision to plead guilty.2 Defendant asserts that neither his
attorney nor the trial judge advised him that the required amount of service on his
sentences would be significantly longer because the offenses are crimes of violence.
Defendant also asserts that the trial judge failed to advise him of the minimum
sentences pursuant to La. C.Cr.P. art. 556.1, and that if he had known such, he would
not have pled guilty in return for a sentence of more than twenty-three years of
incarceration. Given our conclusions under assignments of error three and four, we
only address the merits of this assignment of error as it is directed to the trial judge.
In State v. Roe, 05-116 (La. App. 3 Cir. 06/01/05), 903 So.2d 1265, the
Louisiana Third Circuit Court of Appeal, held that the trial court is not obligated to
inform defendant that good time or parole would be barred. Thus, defendant’s claim
that the trial judge did not properly advise him regarding good time and parole lacks
merit.
Defendant’s claim that his guilty plea was involuntary because the trial judge
did not advise him of the minimum mandatory sentence also lacks merit. Based on
our review of the record, we find that defendant was not prejudiced by this as he was
fully aware of the crimes to which he was pleading guilty and the consequences of
his guilty pleas. The record indicates defendant executed a detailed plea form, which
sets forth the sentences to be imposed and all of the rights waived by the guilty plea.
The trial court conducted a Boykin3 colloquy with defendant and explained to him
the rights he was waiving by pleading guilty. Defendant answered all the trial court’s
questions throughout the plea colloquy and sentencing. Defendant’s sentences are
consistent with the plea agreement, within the statutory limits, and far less than the
potential maximum. Defendant did not reserve any rights to appeal pretrial rulings

2 Defendant contends that since he was sentenced, he has learned that he must serve a minimum of eighty-five percent of the sentences imposed and that he would receive good time at the rate of only three days for every seventeen days served and not one and one-half days of good time for every day served pursuant to La. R.S. 15:571.3(B)(1)(a) and (B)(2).
3 Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


18-KA-3 5
of the trial court prior to pleading guilty, and had the opportunity to ask questions
regarding his plea and sentence but did not.
Considering the above, we find defendant’s assertions that he would not have
pled guilty had the trial judge advised him of the mandatory minimum sentence for
his crimes and the difference in calculating good time for crimes of violence are
without merit.
Assignments of Error Three and Four
Defendant asserts that his trial counsel was ineffective because he did not
inform him of the minimum possible sentences and the correct rate of good time
credits he would receive on his sentences. He contends that post-conviction
procedures permit similarly situated petitioners to present testimony and to be
represented by counsel during an evidentiary hearing and that he has not been
afforded this opportunity. Defendant argues that his claims of ineffective assistance
of trial counsel and invalid guilty pleas should be addressed by the trial court in an
evidentiary hearing. He further argues that without a hearing, he cannot meet his
burden of proof, and his constitutional right to procedural and substantive due
process would be denied.
Generally, an ineffective assistance of counsel claim is most appropriately
addressed through an application for post-conviction relief filed in the district court,
where a full evidentiary hearing can be conducted, rather than by direct appeal.
However, when the record contains sufficient evidence to rule on the merits of the
claim, and the issue is properly raised in an assignment of error on appeal, it may be
addressed in the interest of judicial economy. State v. Taylor, 04-346 (La. App. 5
Cir. 10/26/04), 887 So.2d 589, 595.
Based on the record and given defendant’s assertion that an evidentiary
hearing is necessary to address his claims, we do not consider the merits of
defendant’s ineffective assistance of counsel claims. These claims would be most


18-KA-3 6
appropriately addressed in an APCR in the district court where an evidentiary
hearing could be conducted after defendant’s appeal rights have been exhausted.
Errors Patent
We reviewed the record for errors patent and found the following. La. C.Cr.P.
art. 920; State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The uniform
commitment order (UCO) indicates that defendant was sentenced to imprisonment
at hard labor for twenty-eight years, while the transcript reflects that defendant was
sentenced to imprisonment at hard labor for twenty-three years and plus an
additional five years at hard labor pursuant to La. R.S. 14:64.3 for a total of twenty
eight years. The transcript prevails. State v. Lynch, 441 So.2d 732 (La. 1983).
Therefore, we remand this case and instruct the trial judge to correct the UCO to
indicate defendant’s sentence and the five-year enhancement. We also instruct the
Clerk of Court for the 24th Judicial District Court to transmit the original of the
corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art.
892(B)(2) and to the Department of Corrections’ legal department. See State v.
Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136 (citing La. C.Cr.P. art.
892(B)(2)).

Outcome: For the foregoing reasons, we affirm defendant’s convictions and sentences
and remand with instructions.

Plaintiff's Experts:

Defendant's Experts:

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