State of Louisiana Versus Burl Howard Jr.

STATE OF LOUISIANA NO. 24-KH-546

VERSUS FIFTH CIRCUIT

BURL HOWARD JR. COURT OF APPEAL

STATE OF LOUISIANA

November 18, 2024

Linda Wiseman First Deputy Clerk

IN RE HOWARD BURL JR.

APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE NGHANA LEWIS, DIVISION "B", NUMBER 15,325

Panel composed of Judges Fredericka Homberg Wicker, John J. Molaison, Jr., and Scott U. Schlegel

WRIT DENIED

The relator was convicted after a judge trial on December 19, 2017, for attempted obstruction of justice, possession of crack cocaine, possession of cocaine with intent to distribute, possessing a weapon while in possession of a controlled dangerous substance, and being a felon in possession of a firearm. The relator was adjudicated a third felony offender and sentenced to 25 years for counts one through four concurrently. In addition, the relator received a consecutive 25-year sentence without the benefits of probation, parole, or suspension of sentence for his felon in possession of a firearm conviction and a 90-day consecutive sentence for three instances of direct contempt of court. This court affirmed the relator’s convictions and amended sentences on appeal. State v. Burl, 18-698 (La. App. 5 Cir. 10/2/19), 282 So.3d 316, writ denied, 19-01948 (La. 7/2/20), 297 So.3d 764.

In his application, the relator asserts that he filed a motion to correct an illegal sentence at an unspecified time. The application does not contain a copy of that motion. A July 3, 2024, minute entry provided by the relator shows the court conducted a hearing on his motion and took the matter under advisement. The application does not include a ruling on his motion. A minute entry dated October 21, 2024, shows that the relator appeared for re-sentencing while assisted by counsel. It does not appear that the relator was re-sentenced on that date, and the court considered the matter “satisfied.” There is no indication that the relator objected to or otherwise filed a notice of intent to that ruling.

The relator argues that the trial judge failed to vacate the initial sentence before re-sentencing him as a multiple offender. He also alleges unspecified judicial misconduct. He concludes that the trial court’s failure to vacate his

original sentences is an “error patent” that renders his enhanced sentence “null and void.” Louisiana Code of Criminal Procedure article 882(A) provides that “[a]n illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.” Despite its title, the relator’s motion failed to raise a claim cognizable in a motion to correct an illegal sentence; instead, his motion raised a claim of trial error, which is cognizable in an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. However, the relator’s filing appears to be untimely under La. C.Cr.P. art. 930.8, as more than three years have elapsed between the date his sentences and convictions became final. The trial court reached the merits in an untimely filed application for post-conviction relief when the application did not fit within one of the exceptions to Art. 930.8(A); this does not preclude the court of appeal from raising Art. 930.8’s time bar. State ex rel.Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189, 1201, abrogated in part on other grounds, State ex rel. Olivieri v. State, 00- 0172, 00-1767 (La. 2/21/2001), 779 So.2d 735, cert. denied, Olivieri v. Louisiana, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001).

The relator’s writ application is missing several critical documents required by Uniform Rules, Courts of Appeal Rule 4-5, and also does not bear a notice of intent or evidence of a return date as required by Uniform Rules, Courts of Appeal Rule 4-2, and 4-3. His claim in the lower court also appears to be time-barred under La. C.Cr.P. art. 930.8. On the showing made, the relator’s writ application is denied.

Gretna, Louisiana, this 18th day of November, 2024.

JJM FHW SUS

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 11/18/2024 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-546 E-NOTIFIED 40th District Court (Clerk) Honorable Nghana Lewis (DISTRICT JUDGE) No Attorney(s) were ENOTIFIED

MAILED Honorable Bridget A. Dinvaut Howard Burl, Jr. #122214 (Relator) (Respondent) Raymond Laborde Correctional Center District Attorney 1630 Prison Road Fortieth Judicial District Cottonport, LA 71327 Parish of St. John the Baptist 1342 La. Highway 44 Reserve, LA 70084