Date: 09-13-2018

Case Style:

Case Number: 2014-KA-0408

Judge: Tiffany G. Chase

Court: COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: Leon A. Cannizzaro, Jr.
Scott G. Vincent
District Attorney

Defendant's Attorney: Mary Constance Hanes
LOUISIANA APPELLATE PROJECT

Description: On application for rehearing, Kendrick Boyd (hereinafter “Mr. Boyd”)
reurges his previous assignments of error. Specifically, that his sentence was
excessive and he received ineffective assistance of counsel at sentencing. On
rehearing, Mr. Boyd asserts two new arguments. Namely that he received
ineffective assistance of counsel at the evidentiary hearing held on August 24,
2017; and this Court failed to rule on his motion to file supplemental brief and fix
new briefing schedule.
In State v. Boyd, 2014-0408 (La.App. 4 Cir. 2/11/15), 164 So.3d 259, we
remanded the matter for an evidentiary hearing regarding Mr. Boyd’s ineffective
assistance of counsel claim and retained jurisdiction of the case. The evidentiary
hearing was held on August 24, 2017. On remand, the trial court conducted an
evidentiary hearing and concluded that trial counsel’s representation of Mr. Boyd
was not ineffective. Mr. Boyd filed a motion to supplement the record following
remand and a motion to file supplemental brief and fix new briefing schedule on
November 13, 2017. On November 27, 2017, we granted Mr. Boyd’s motion to
supplement the record ordering the record supplemented with the following: (1)
the transcript and minute entry of the hearing held on August 24, 2017; (2) all



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exhibits submitted by the defense and the State in regards to that hearing and; (3)
the written judgment dated October 16, 2017. The record was supplemented with
the requested documentation on various dates; specifically, February 16, 2018,
June 26, 2018 and June 27, 2018. After supplementation of the record was
complete, this Court issued its opinion on July 25, 2018, affirming Mr. Boyd’s
sentence finding that it is not excessive and he did not receive ineffective
assistance of counsel at sentencing. For the following reasons, we deny the
application for rehearing.
Mr. Boyd asserts that we should reconsider our opinion of July 25, 2018
which affirmed his sentence and the trial court’s ruling on his ineffective assistance
of counsel claim. We held Mr. Boyd was sentenced within the statutory guidelines
and found no error in the trial court’s finding that Mr. Boyd had adequate
representation at sentencing. As such, rehearing on these issues is not warranted.
Mr. Boyd next asserts that rehearing is warranted in order for this Court to
consider his new claim of ineffective assistance of counsel at the August 24, 2017
hearing. “As a general rule claims of ineffective assistance of counsel are more
properly raised by application for post-conviction relief in the trial court where a
full evidentiary hearing may be conducted if warranted.” State v. Howard, 1998
0064, p. 15 (La. 4/23/99), 751 So.2d 783, 802 (citations omitted). Mr. Boyd
contends this is his only opportunity to raise this claim and relies on our previous
opinion in State v. Boyd, 2014-0408 at p. 8, 164 So.3d at 264, that ineffective
assistance of counsel claims cannot be raised in post-conviction proceedings. His
reliance on our previous opinion in Boyd is misplaced as his ineffective assistance
of counsel claim at that time dealt with representation at sentencing. This Court
specifically opined that ineffective assistance of counsel claims, at sentencing,


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were not cognizable in post-conviction proceedings. Id. Mr. Boyd’s new claim
involves ineffective assistance of counsel at the evidentiary hearing conducted on
remand. We find his claim would be more properly raised by application for post
conviction relief in the trial court where, if necessary, a full evidentiary hearing can
be conducted. State v. Howard, 98-0064, p. 15 (La. 4/23/99), 751 So.2d 783, 802.
Lastly, Mr. Boyd asserts this Court erred in failing to rule on his motion for
leave to file supplemental brief and fix new briefing schedule prior to rendering
our opinion. It is well settled that appellate courts render decisions based upon the
record on appeal, which includes pleadings, court minutes, transcripts, judgments
and other rulings. Bd. of Directors of Indus. Dev. Bd. of City of New Orleans v.
Taxpayers, Prop. Owners, Citizens of City of New Orleans, 2003-0827, p. 4
(La.App. 4 Cir. 5/29/03), 848 So.2d 733, 737; See La. C.C.P. art. 2164. Briefs are
not considered part of the record on appeal. State in the Interest of Solomon, 1995
0638, p. 6 (La.App. 4 Cir. 3/27/96), 672 So.2d 1039, 1042. Although Mr. Boyd
sought to file a supplemental brief, his motion fails to adequately demonstrate a
need for supplementation. His motion to file supplemental brief and motion to
supplement the record both articulate identical requests regarding documentation
needed for a complete record. Once the record was supplemented with the
requested documentation it was complete and sufficient for this Court to render an
opinion. As briefs are not considered part of the record on appeal, a supplemental
brief could not have been utilized in the rendition of our opinion. Additionally,
“[i]t is true as a general rule that where a judgment is silent with respect to any
demand which was an issue in the case under the pleadings such silence constitutes
an absolute rejection of such demand.” Sun Financial Co, Inc. v. Jackson, 525
So.2d 532, 533 (La. 1988). Therefore, once our opinion in this matter was issued,


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Mr. Boyd’s motion for leave to file supplemental brief and fix new briefing
schedule was deemed denied.

Outcome: For the foregoing reasons, the application for rehearing is denied.

Plaintiff's Experts:

Defendant's Experts:

Comments: