State of Louisiana Versus George Simon

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