The opinion
STATE OF LOUISIANA NO. 24-KH-573
VERSUS FIFTH CIRCUIT
GEORGE SIMON COURT OF APPEAL
STATE OF LOUISIANA
January 09, 2025
Linda Wiseman
First Deputy Clerk
IN RE GEORGE SIMON
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JUNE B.
DARENSBURG, DIVISION "C", NUMBER 18-2159
Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Stephen J. Windhorst
WRIT DENIED
Relator, George Simon, seeks review of the 24th Judicial District Court’s
October 23, 2024 judgment denying his application for post conviction relief
(“APCR”) and Motion to Correct Illegal Sentence.
In May 2022, Relator pled guilty pursuant to a plea agreement to armed
robbery (counts one and three); possession of a firearm by a convicted felon (count
two); and aggravated assault with a firearm (count four). He was sentenced to
thirty years imprisonment at hard labor without benefit of probation, parole, or
suspension of sentence on each armed robbery count (counts one and three), plus
an additional five years without benefit of probation, parole, or suspension of
sentence on each count for the firearm enhancement under La. R.S. 14:64.3, to run
consecutively with counts one and three and concurrently with all other counts;
twenty years imprisonment at hard labor without benefit of probation, parole, or
suspension of sentence on count two; and ten years imprisonment at hard labor on
count four. The trial court also ordered all of the sentences to run concurrently with
each count. Relator did not file a motion for appeal.
In October 2024, Relator filed an APCR and Motion to Correct Illegal
Sentence based on claims of actual innocence under La. C.Cr.P. art. 926.2 and the
entry of an involuntary guilty plea, respectively. The district court found that
Relator’s claim was not cognizable in a motion to correct illegal sentence and
further found “no illegality in [Relator’s] sentencing, as the terms of the sentences
imposed [were] clearly within the statutory parameters established by law.” The
district court also found that Relator’s APCR was untimely filed pursuant to La.
C.Cr.P. art. 930.8 and therefore, his claims were “procedurally barred from
review.” Last, the district court found that even if Relator’s claims were addressed,
“they would be denied,” given that Relator pled guilty pursuant to a negotiated
plea agreement.”
Upon the showing made, we find no error in the district court’s ruling.
Relator pointed to no illegal term in his sentence. We will therefore consider his
motion to correct an illegal sentence as an APCR instead. However, his
involuntarily guilty plea claim is untimely under La. C.Cr.P. art. 930.8(A), which
provides in pertinent part: “No application for post-conviction relief including
applications which seek an out-of-time appeal, shall be considered if it is filed
more than two years after the judgment of conviction and sentence has become
final.” Relator pled guilty and was sentenced in May 2022; he did not timely
appeal his convictions and sentences, so they became final more than two years
before he filed his APCR. Also, generally, when a defendant pleads guilty, he
waives all non-jurisdictional defects in the proceedings leading up to the guilty
plea and precludes review of such defects either by appeal or post-conviction
relief. State v. Turner, 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459.
Further, we find no merit in Relator’s actual innocence claim. The failure to
collect fingerprints from the entrance of the store where the armed robbery
occurred and the “potentially useful exculpatory evidence” the collection of those
fingerprints may have yielded does not qualify as “new, reliable, and
noncumulative evidence that would be legally admissible at trial and that was not
known or discoverable at or prior to trial” under La. C.Cr.P. art. 926.2.
A petitioner’s first claim of factual innocence pursuant to this Article
that would otherwise be barred from review on the merits by the time
limitation provided in Article 930.8 or the procedural objections
provided in Article 930.4 shall not be barred if the claim is contained
in an application for post conviction relief filed on or before
December 31, 2022, and if the petitioner was convicted after a trial
completed to verdict. This exception to Articles 930.4 and 930.8 shall
apply only to the claim of factual innocence brought under this Article
and shall not apply to any other claim raised by the petitioner. An
application for post conviction relief filed pursuant to this Article by a
petitioner who pled guilty or nolo contendere to the offense of
conviction or filed by any petitioner after December 31, 2022 shall be
subject to Articles 930.4 and 930.8.
La. C.Cr.P. art. 930.8. Thus, Relator’s factual innocence claim is also time-barred
pursuant to La. C.Cr.P. art. 930.8.
Last, we note that, although Relator filed his motion and APCR within 30
days of the district court’s ruling, he did not file a notice of intent with the district
court as required by Uniform Rules – Courts of Appeal, Rule 4-2, and he failed to
include documentation of a return date with his writ application as required by
Uniform Rules – Courts of Appeal, Rule 4-3.
Accordingly, Relator’s writ application is denied.
Gretna, Louisiana, this 9th day of January, 2025.
MEJ
FHW
SJW
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
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 01/09/2025 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:
24-KH-573
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable June B. Darensburg (DISTRICT JUDGE)
Thomas J. Butler (Respondent)
MAILED
George Simon #442974 (Relator)
Raymond Laborde Correctional Center
1630 Prison Road
Cottonport, LA 71327