author: 1,JAMES L. CANNELLA, Judge.

text:
    Susan Folse McCLANAHAN v. Jack McCLANAHAN.
    No. 03-CA-1178.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.
    Order Granting Rehearing in Part April 14, 2004.

      Marc D. Winsberg, Schonekas, Wins-berg, Evans & McGoey, LLC, New Orleans, LA, for Appellant.
    Robert C. Lowe, David M. Prados, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, for Appellee.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and JAMES L. CANNELLA.
   1,JAMES L. CANNELLA, Judge.

The Plaintiff, Susan Folse MeClanahan (Ms. MeClanahan) and the Defendant, Jack MeClanahan (Mr. MeClanahan), both appeal from the judgment rendered in this community property partition action. For the reasons which follow, we affirm in part, reverse in part, amend in part and render.

The parties were married on January 23, 1988 and their community terminated on March 25,1998. It is not disputed that prior to the marriage, Mr. MeClanahan had a net worth of between 40 and 60 million dollars and at the termination of the marriage he had a net worth of approximately 10 million dollars. Mr. MeClanahan attributed this significant downturn primarily to the crash in the oil industry. During the course of this ten year marriage Mr. MeClanahan engaged in numerous complicated business transactions, as was his customary practice. Many of these transactions were through his primary company which, both parties agree, he owned prior to the marriage, MeClanahan Contractors.

Mr. MeClanahan testified that McClana-han Contractors was originally formed in 1964 when he was 21 years old. At that time, it was named American 13Workover, Incorporated (AWI). He testified that AWI had quite a number of subsidiaries over the years that it “bought, sold, merged and spun off,” naming a few, Du-caine Natural Gas, McFarland Pump, Joe Bolt, Cushing, and Cherokoe Equipment. Mr. MeClanahan owned 85% of McClana-han Contractors and Richard White owned the other 15%. The other major company through which Mr. MeClanahan conducted business was Aransas Drilling and Work-over (Aransas). In 1981 out of bankruptcy, MeClanahan Contractors acquired Ar-ansas, formerly called Matagorda Drilling. Aransas was a wholly owned subsidiary of MeClanahan Contractors with the exception of between 1% and 3%, which was owned by each of Mr. McClanahan’s children.

Over the years, Mr. MeClanahan conducted business through several other companies, partnerships and corporations, some of which existed prior to the marriage and some of which came into existence during the marriage. Ms. McClana-han’s general view is that she is entitled to part of the assets resulting from all of these business transactions. The issues raised in these appeals involve property acquisitions, transactions and reimbursement claims that occurred during the marriage and are best considered individually.

First, an overview of the legal principles involved is helpful. Community property is made up of property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse, property acquired with community things or with community and separate things, unless classified as separate property under Article 2341. La. C.C. art. 2338. The natural and civil fruits of the separate property of a spouse are community property. La. C.C. art. 2339. Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property. La. C.C. art. 2340. The separate property of a spouse is his exclusively. Separate property is made up of property 14acquired by a spouse prior to the establishment of a community property regime and property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used. La. C.C. art. 2341. A spouse’s undivided interest in property, otherwise classified as separate property under Article 2341, remains his separate property regardless of the acquisition of other undivided interests in the property during the existence of the legal regime, the source of improvements thereto, or by whom the property was managed, used, or enjoyed. La. C.C. art. 2341.1. If community property has been used for the acquisition, use, improvement, or benefit of the separate property of a spouse, the other spouse is entitled, upon termination of the community, to one-half of the amount or value that the community property had at the time it was used. La. C.C. art. 2366. By the same token, if separate property of a spouse has been used for the acquisition, use, improvement, or benefit of community property, that spouse, upon termination of the community, is entitled to one-half of the amount or value that the property had at the time it was used. La. C.C. art. 2367. If the separate property of a spouse has increased in value as a result of the uncompensated labor or industry of either spouse, the other spouse is entitled to be reimbursed from the spouse whose property has increased in value one-half of the increase attributed to the common labor. La. C.C. art. 2368. A spouse is liable for any loss or damage caused by fraud or bad faith in the management of the community property. La. C.C. art. 2354.

In interpreting La. C.C. art. 2354, the jurisprudence has recognized, since the 1980 community property revision, that no fiduciary duty exists with respect to management of community property. Jamison v. Jamison, 528 So.2d 1094 (La.App. 3rd Cir.1988); Rivers v. Rivers, 381 So.2d 573 (La.App. 2nd Cir.1980), writ denied, 383 So.2d 799 (La.1980); K. Spaht, Developments in the Law — 1986-87, 48 La. L.Rev. 371, 373 (1987). It seems that acting out of self interest is not enough to constitute fraud or bad faith under Article 2354. Rather, a subjective element, the intent to injure or the intent to reduce a spouse’s community interest, must be established. Katz v. Katz, 423 So.2d 1277 (La.App. 4th Cir.1982), writ denied, 427 So.2d 860 (La.1983); Katherine S. Spaht & W. Lee Hargrave, Louisiana Civil Law Treatise, Matrimonial Regimes, Vol. 16, § 5.22, (2d ed.1997). In other words, more than financial injury must be shown. “A malevolent mental state related to decreasing the amount of money the spouse is to receive in a partition of community property is necessary.” Katherine S. Spaht & W. Lee Hargrave, Louisiana Civil Law Treatise, Matrimonial Regimes, Vol. 16, § 5.22, at 290 (2d ed.1997).

Because property acquired by the effort, skill or industry of a spouse is community, to the extent that a spouse’s labor is producing some benefit, the community ought to share in the profit of that labor. Thus, in the case where a spouse’s labor increases the value of a separate asset, the equitable solution is reimbursement for that effort by awarding the non-owner spouse one-half of the increase attributable to the common labor. La. C.C. art. 2368. If the labor is combined with separate capital or other separate property, equity would suggest a proportional division of the profits between the community and separate estates of the spouses. Katherine S. Spaht & W. Lee Hargrave, Louisiana Civil Laiv Treatise, Matrimonial Regimes, Vol. 16, § 3.8 & 3.49 (2d ed.1997). Assets owned by a corporate entity are the property of that entity and are not owned by the shareholders or partners. Such acquisitions by the entity are not community property of the spouses even if the latter are owners of stock or are partners. Taylor v. Taylor, 33,959 (La.App. 2nd Cir. 11/1/00), 772 So.2d 891. If a spouse is the principle involved in a company and he or she expended labor on company operations during the marriage for which he was not compensated, the other | ^spouse's remedy is a claim for uncompensated common labor under La. C.C. art. 2368. Taylor v. Taylor, supra; Katherine S. Spaht & W. Lee Hargrave, Louisiana Civil Law Treatise, Matrimonial Regimes, Vol. 16, § 3.11 (2d ed.1997). We apply these legal precepts to the property and reimbursement disputes raised in this case.

MR. McCLANAHAN’S APPEAL Sterling Investments, LLC (Sterling Investments)

The trial court determined that Sterling Investments was a community asset and valued it at $221,142. Mr. McClanahan argues on appeal that the trial court erred in this conclusion.

Sterling Investments was formed in 1995 during the marriage. However the owners of the company were McClanahan Contractors (50%) and Kelly O’Rourke (O’Rourke), Mr. McClanahan’s daughter from a prior marriage, (50%). Initially, McClanahan Contractors paid $50,000 in capital, funds Mr. McClanahan testified came from the sale of other separate property owned by the corporation. Sterling Investments also obtained a loan from Whitney National Bank in the amount of $169,200 which was personally guaranteed by both Mr. McClanahan and O’Rourke. On May 15, 1996 Sterling Investments purchased for $211,000 a piece of residential property in which O’Rourke intended to reside. In September of 1997, O’Rourke assigned an oil and gas lease to Sterling Investments that was valued as a $25,000 capital contribution. At some point Aransas made a loan to Sterling Investments in the amount of $184,871. There was also a second loan obtained from Whitney National Bank in the amount of $370,000 which was guaranteed personally by Mr. McClanahan. McClana-han Contractors made an additional $4000 capital contribution to the company on July 15, 1999. Another residential property was purchased for $465,000 by the company after the marriage terminated on July 15, 1999. O’Rourke made some draws from the company in the amount of $29,700. Mr. McClanahan testified that O’Rourke made repairs and 17improvements to the first property valued at $93,000. Mr. McClanahan testified that the purpose of the company was to assist his daughter in acquiring a house. By doing it through the company the house would not be titled in her name if she did not pay for it.

Mr. Asher, Ms. McClanahan’s accountant, testified that the company created during the marriage should be treated as community property and placed a value on the asset of $271,142. He arrived at the figure by adding the appraised value of the first property, $310,000, to the value of the second property, $467, 948, less $3,300 for a tax adjustment. Then, he subtracted the two loans due the Whitney National Bank to reach the value of the asset. Mr. Asher did not subtract the capital contributions or the loan from Aransas in arriving at this figure. Ms. McClanahan argues that the trial court erred in valuing this community asset at $221,142 and argues that it should be valued at $271,142.

In concluding that the asset was community property and valuing it at $221,142, we find that the trial court committed legal error in several respects. First, the asset cannot be community property since it in no way belonged to Mr. McClanahan. Sterling Investments was owned 50% by a separate and distinct corporate entity, McClanahan Contractors, and 50% by O’Rourke. Ms. McClanahan has not argued, nor would it be supported by the record, grounds to pierce the corporate veil and we find no reason to do so. Further, no intent on the part of Mr. McClanahan to reduce the community interest has been shown. Mr. McClanahan testified that he was trying to assist his daughter’s acquisition of a $211,000 house, a thing that a father with a 50 million dollar separate estate has the right to do. Thus, respecting the legal status of McCla-nahan Contractors as a separate and distinct legal entity, and the fact that it is not disputed that McClanahan Contractors is the separate property of Mr. McClanahan, the asset cannot be community property. However, to the extent that Mr. McClana-han’s |sseparate property has been enhanced by his labor, or that his labor has been uncompensated, during the community, Ms. McClanahan is due reimbursement of one-half the increase in the value of Mr. McClanahan’s separate property that is attributable to his labor during the community.

In determining the proper value for the community labor, we note that the second property was purchased after the termination of the community. Thus any labor that went into that endeavor would not create a community debt. There was an increase in value of the property purchased during the community from $211,000 to $310,000 or $99,000. One-half of this ($44,500) belongs to O’Rourke since she is a 50% owner. The other one-half ($44,500) belongs to McClanahan Contractors of which Mr. McClanahan owns 85%. So, Mr. McClanahan’s separate property, McClanahan Contractors, was increased in value by $37,825. To the extent that Mr. McClanahan’s labor, working for McClana-han Contractors, contributed to increasing the value of his separate property, the community is due reimbursement. The increase in value must be prorated, however, between the corporate capital used and the community labor, which we find contributed equally to the profit. Thus, we find that the community is due reimbursement of one-half the value of the increase of Mr. McClanahan’s 85% interest in McClanahan Contractors, or $18,912.50.

Bank One IRA Account # EH8-779563

The parties stipulated that the Bank One IRA has a value of $234,621. The trial court found that it was a community asset, valued it without explanation at $152,683, and awarded it to Mr. McClana-han. Mr. McClanahan argues that the court erred in finding that the IRA was a community asset. All contributions were made to the IRA by Mr. McClanahan prior to the marriage and none were made during the marriage. Thus, under the T.L. James Co., Inc. v. Montgomery, 332 So.2d 834 (La.1975) formula for dividing retirement accounts, none of the account should be considered a community asset.

It is not disputed that all of the contributions to the IRA account were made by Mr. McClanahan prior to the marriage and none were made during the marriage. Also, no withdrawals were made during the marriage. The asset was acquired prior to the marriage. Thus, the asset is clearly the separate property of Mr. McClanahan. La. C.C. art. 2341. The fact that community property in the nature of fruits was added to the account, does not change the character of the asset from separate property to community. La. C.C. art. 2341.1. However, the fruits of separate property of one spouse are community property. La. C.C. art. 2339. Therefore, we find that the IRA account is the separate property of Mr. McClanahan, but he owes an accounting and debt to the community for the increase in value attributable to the natural and civil fruits that accrued during the marriage.

The record indicates that the IRA account had a value at the time of the marriage of $81,938. Mr. McClanahan did not produce sufficient evidence to establish what part of the remainder of the value of the account is attributable to natural and civil fruits and, thus, community or capital appreciation and, thus, separate. To the extent that Mr. McClanahan has not established what part of those funds are separate property, being earned during the community, they will be presumed community. La. C.C. art. 2340. Accordingly, although the Bank One IRA is the separate property of Mr. McClanahan, he owes a debt to the community of $152,683, the difference between the stipulated value of the IRA, $234,620, and the sum conclusively proven to be Mr. McClanahan’s separate property, $81,958.

\v¡Wood River Resorts, Inc., L.L.C. (Wood River Resorts)

The trial court awarded Ms. McClana-han $158,250 on this reimbursement claim for profit allegedly acquired by Wood River Resorts. Mr. McClanahan argues that the acquisition was not community property.

It is undisputed that Mr. McClana-han owned one quarter of the Wood River property prior to his marriage. In approximately 1992, an additional 25% interest was acquired. Mr. McClanahan testified that it was acquired by a subsidiary of McClanahan Contractors called Delta Pipe and Supply (Delta). Delta was formed in 1986 and is owned by Mr. McClanahan and his three children, who- each own a 7/é% interest. Ms. McClanahan presented evidence through a personal financial statement indicating that the additional 25% was acquired by Mr. McClanahan personally. The acquisition of this second 25% was facilitated by a loan from Aransas. Mr. McClanahan then contributed his separate 25% interest to Delta and Delta contributed the 50% interest in the Wood River property to Aransas for the debt.

Thereafter, Aransas and Mr. McClana-han’s son, Chris, formed Wood River Resorts, Inc., L.L.C., which secured a loan from the Whitney National Bank to purchase the remaining 50% of the Wood River property. Aransas eventually acquired Chris’ share of the Wood River property in exchange for taking over his part of the debt to Whitney National Bank, resulting ultimately in Aransas’ 100% ownership of the Wood River property.

Like Sterling Investments, we find that the Wood River property was not acquired personally by Mr. McClanahan, but was acquired through separate legal entities. We find no reason to look behind the corporate structure. Thus, the Wood River property did not constitute community property. However, since it was Mr. McClanahan’s labor that facilitated an increase in his separate property h T through corporate equity, the community is due reimbursement for the increase attributable to his labor.

The property appraised at the time of trial for $1,400,000. 25% of that belonged to Mr. McClanahan prior to the marriage. Thus, the value in dispute is% of the total or $1,050,000. The acquisition cost of the property consisted of a $212,500 loan from Aransas for acquisition of the 25% share and a $500,000 loan from Whitney National Bank for acquisition of the 50% share. Thus, the value of any increase in value of Mr. McClanahan’s separate property is $1,050,000 minus the acquisition costs of $712,500, or $387,5000. 22]é% of that belongs to the three children as part owners of Aransas, leaving $261,562. To determine the amount of the increase in value of Mr. McClanahan’s separate property attributable to his labor, the total increase, $261,562 must be prorated between the value of corporate capital used and the community labor. Since the majority of the acquisition costs were from a bank loan, we find that the increase in value of Mr. McClanahan’s separate property is 75% attributable to his community labor. Thus, we find that the community is due reimbursement of $196,171.50, attributable to the community labor that was expended to increase the value of Mr. McClanahan’s separate property by the Wood River property acquisition, or $98,085.75, to Ms. McClanahan.

Four-Ten Land and Production Inc. (Four-Ten)

The trial court awarded Ms. McClana-han $142,030 on this reimbursement claim based on the capital account of this company at the time it was terminated. Mr. McClanahan argues that any capital attributable to this company was his separate property.

It is undisputed that this entity was incorporated in 1985, prior to the marriage. The corporation was originally owned by AWI. As testified to by Mr. McClanahan, its only asset was some real estate, owned by AWI since 1979, |12located at 1504 Engineer Road in Belle Chase, Louisiana. The corporation was “spun out of’ McClanahan Contractors for some time, but eventually merged into Ar-ansas in July of 1997. During a four day period between July 27, 1988 and July 31, 1988 there is documentation showing that the corporation had no assets and no liabilities. Thereafter, a July 31,1988 document shows the corporation with assets of $1,578,000. When the corporation was merged into Aransas in 1997, there was “paid in capital” in the amount of $284,000. It is one half of this amount that the trial judge ruled Mr. McClanahan should reimburse to Ms. McClanahan.

Mr. McClanahan argues that the trial court erred because Four-Ten came into existence before the marriage, it was a subsidiary of his separately owned company and its only asset ever was the property located on Engineers Road that had been owned by AWI since 1979. In other words, Mr. McClanahan argues that any interest he had in the company was his separate property and the only asset owned by the company was separate property.

Ms. McClanahan disputes this by showing that for four days during the marriage the company owned nothing and then it acquired something thereafter, during the community, so that should be a community interest. She values her interest in this property by the amount of the paid in capital when Four-Ten merged with Aran-sas. Ms. McClanahan’s claim here seems to be for an advantage that could have been placed with the community rather than with this separately held corporation.

We find no legal support for Ms. McClanahan’s claim. The tax return of the company shows a four day period where Four-Ten had no assets. The other documentation as well as the testimony establishes that any interest Mr. McClana-han had in Four-Ten was his separate property. The only asset of Four-Ten was 1504 Engineer Road the former property of AWI, a company that was also Mr. McClanahan’s separate property. This was the only asset of Four-Ten [ 13when it terminated in a merger with Aransas, which was also separately owned by Mr. McClanahan. Even assuming that there were four days where the company divested itself of ownership of the separate property and thereafter reacquired it, that would not give rise to a community claim where there is no evidence of any intent by Mr. McClanahan to reduce his spouse’s community interest or injure her in any way. The property, as well as all the companies involved, were Mr. McClana-han’s separate property. Accordingly, we find that the trial court erred in awarding Ms. McClanahan reimbursement for one-half of the paid in capital in Four-Ten at the time of its dissolution.

Management Fees Paid to Delta

The trial court awarded Ms. McClana-han $75,000 in reimbursement on this claim. As stated above, Delta was a company that was formed prior to the marriage. It was owned by Mr. McClanahan and his three children who each owned llk % of the company (22.5% total). At issue here is a fee of $150,000 paid to Delta by McClanahan Contractors in 1997. The trial judge ordered that Mr. McClanahan reimburse Ms. McClanahan one-half of that sum, or $75,000.

On appeal Mr. McClanahan argues that the trial court erred in ordering him to pay Ms. McClanahan reimbursement for one-half of this fee. He argues that it was payment for services from one separate corporation to another and should not inure to the benefit of the community.

Ms. McClanahan argues to the contrary that the payment was in reality salary to Mr. McClanahan that should have gone to the community. She points out that Mr. McClanahan was the primary owner of Delta and the controlling principal in McClanahan Contractors. Mr. McClanahan testified that there were years when he worked for McClanahan Contractors and did not get paid. He also admitted that Delta had no payroll employees, only some people who worked for the company under outside contractors. Nevertheless, Mr. McClanahan testified that Delta was |14created to buy rig supplies at a discount and resell them and to rent some tools that it owned. Mr. McCla-nahan admitted that he “caused” the $150,000 fee payment to Delta.

Ms. McClanahan argues that no work was done for this fee. It was nothing more than a transfer of funds from one company to another. However, we fail to see how this argument benefits Ms. McClanahan since, presumably, McClana-han Contractors, which was the separate property of Mr. McClanahan, would be able to donate funds from it to another separately held company without any benefit to Ms. McClanahan. Since, Mr. McClanahan testified that work was performed for the services and that was not factually contradicted, we will address the issue as a claim for uncompensated labor during the marriage that enhanced Mr. McClanahan’s separate property.

Like some of the other issues that we have considered, this was a payment by one corporate entity to another. Absent a determination to pierce the corporate veil, which has not been made herein, the payment itself would not constitute community property. However, the community is entitled to reimbursement for the value of community labor used to enhance separate property. La. C.C. art. 2368. We look to the value of the enhancement. Delta was paid $150,000 that was generated in part by Mr. McClanahan’s work effort or labor. Delta was owned in part (22.5%) by Mr. McClanahan’s children. To the extent that they are owners of the company, 22.5% of any fees paid to the company belong to them and are not an increase in the value of Mr. McClanahan’s separate property. Thus, we find that we must deduct 22.5% of the fee from any increase in the value of Mr. McClanahan separate estate. Therefore, we find that Mr. McClanahan’s separate estate was enhanced by Mr. McClanahan’s community labor in the amount of $116,250, to which Ms. McClanahan is entitled to reimbursement of one-half, or |1S$58,125.- Thus the trial court award for reimbursement ■ of these management fees is reduced from $75,000 to $58,125.

Other Management Fees

The trial court awarded Ms. McClana-han $50,000 in reimbursement on this claim. On the McClanahan Contractor’s 1997 tax return, there is an entry for management fees paid, some of which were discussed above. This includes an additional $100,000 of management fees paid by the company in that year. The entry does not specify who- the payees were for those fees. The trial judge ruled that one-half of the $100,000 had to be reimbursed by Mr. McClanahan to Ms. McClanahan. Having no reasons for judgment, we have no idea what legal theory this determination was based upon, except as gleaned from the argument of the parties.

Mr. McClanahan argues that this was an operating company and that the management fees were legitimate expenses of doing business and should not be reimbursable to the community. Ms. McClanahan argues that the management fees paid by McClanahan Contractors are nothing more than a diversion of what should have been community income.

Again, we note that McClanahan Contractors was an ongoing business that had income and expenses of operation. On this same tax return, with the fiscal year ending on July 31, 1997, there is an entry showing negative taxable income for the company in the amount of -$852,000. While Ms. McClanahan’s expert cautions that this should not be viewed as the economic status of the company, it does evidence the fact that the separately owned corporation was not making enormous profits at the expense of the community. As a legitimate ongoing concern, we can find no legal theory under which to conclude that an entry on a corporate tax return for management' expenses creates a debt to the community of the major shareholder, especially considering that this company was the separate hfiproperty of Mr. McClanahan. If there were something improper about the payment of the fee, as implied by Ms. McClanahan, then a derivative action might be in order, but not a finding that the community is owed the money. We set aside the trial court award of $50,000 due as reimbursement to Ms. McClanahan for these funds.

Community funds diverted to Delta

The trial court awarded Ms. McClana-han $296,116.50 in reimbursement on her claim that community funds were improperly diverted to Delta. Delta was a company that was formed prior to the marriage and was owned by Mr. McClanahan and his three children, the children owning 1%% each and Mr. McClanahan owning the remainder. Mr. McClanahan argues that this .award was completely erroneous based on the evidence. All that was established at trial, through Delta’s tax documents (K-ls), was that Delta had capital contributions during the time of the marriage in the amount of approximately $1.6 million dollars. There was no showing where most of this money came from. Mr. MeClanahan testified that none of the capital contributions came from community property and, therefore, no community reimbursement is due for the capital balance found in a company. Moreover, Mr. MeClanahan argues that even if the money was considered community, he made over 1.6 million dollars of withdrawal from Delta for the benefit of the community, which would offset any debt owed to the community.

Ms. MeClanahan argues that because the funds appeared in the capital account during the marriage, it was incumbent upon Mr. MeClanahan to prove that the funds came from separate property or they should be presumed to be community.

| 17As was the consensus of both parties, this Court cannot determine how the trial court arrived at the $296,116.50 figure awarded for this claim. Nor can we find a debt owed to Ms. MeClanahan based on capital contributions of a separate legal entity, Delta, during the time of the marriage. The only evidence presented to support the reimbursement claim is the tax documents of the business showing its capital account, without any evidence of from where the money came. The capital account of a business simply does not equate, without more, with a community debt. This was not money acquired by a spouse during the marriage. It was acquired by a separate legal entity which was additionally the separate property of Mr. MeClanahan. Further, the general financial status of all the parties throughout the marriage appears to have been that the marriage commenced with Mr. MeClanahan having a rather large separate estate and the community never amassing any substantial liquid assets. At the end of the marriage, the community still did not have a great deal of liquid assets and Mr. McClanahan’s separate estate had been reduced from 50 to 10 million dollars. Thus, we find that the record does not support a finding that the community contributed 1.6 million dollars to Delta’s capital account. This reimbursement award to Ms. MeClanahan is vacated.

MS. McCLANAIIAN’S APPEAL

Prudential Securities Individual Retirement Account (Prudential Securities IRA)

The trial court valued the Prudential Securities IRA, which the parties stipulated was community property, at $34,154 and awarded it to Mr. MeClanahan. Ms. MeClanahan argues that since she is owed a large equalization payment, she should have been awarded this account.

The trial court is granted much discretion in allocating assets. La. R.S. 9:2801. Ms. MeClanahan has shown no abuse of that discretion in the trial court’s award of this asset to Mr. MeClanahan. Further, in view of our findings above, the | ^equalization payment due has been substantially reduced or is non-existent. Thus, we find no error- in the trial court award of the Prudential Securities IRA to Mr. MeClanahan.

Barrios Services, Inc. (Barrios) 401 (k) Plan

The trial court valued the Barrios 401(k) Plan, which the parties stipulated was community property, at $3,978 and awarded it to Mr. MeClanahan. Ms. MeClana-han argues that since she is owed a large equalization payment, she should have been awarded this account. For the same reasons given concerning the Prudential Securities IRA, we find no error in the trial court allocation of this asset to Mr. McClanahan.

Massachusetts Mutual (Mass Mutual) Life Insurance Policy

The trial court valued the Mass Mutual life insurance policy, which the parties stipulated was community property, at $81,430 and awarded it, upon motion for new trial, to Mr. McClanahan. Ms. McClanahan argues that since she is owed a large equalization payment, she should have been awarded this account. For the same reasons given concerning the.Prudential Securities IRA, we find no error in the trial court allocation of this asset to Mr. McClanahan.

Investment Account at First National Bank of Commerce (FNBC)

The parties had an investment account at FNBC which Ms. McClanahan argues should have been deemed community property and valued at $9,000. She arrives at the $9,000 value from an entry on a Financial Statement prepared by Mr. McClanahan, dated February 28,1998.

Mr. McClanahan does not dispute that this is a community account but does dispute the value placed on it by Ms. McCla-nahan. He argues that it should be valued at no more than $2,525.35, which is the balance listed on the FNBC statement covering February 20,1998 to March 24,1998. The community was effectively terminated on March 25,1998.

|]flWe find that the account was a community account and that the value at the time of the dissolution of the marriage was $2,525.35, as provided on the statement ending one day before the marriage was terminated. Since this asset has remained in Mr. McClanahan’s possession, Ms. McClanahan is due $1,262.68 from Mr. McClanahan.

Sterling Financial Services

The trial court did not award anything on this claimed community asset. Ms. McClanahan argues that the trial court erred in not finding that Sterling Financial Services was a community asset and in not valuing it at $14,852. Ms. McClanahan arrives at the value based on a balance sheet for the company dated December 31, 1997 showing an asset, Nolan 1, worth $12,500 and two checks totaling $2,352.

Mr. McClanahan contends that this company was not community property and was properly excluded by the trial court. Further, any assets in the company before it was liquidated in October of 1997 were withdrawn and spent on the community or on Ms. McClanahan. Mr. McClanahan testified that although the balance sheet showed an asset worth $12,000, in fact that asset had been sold in October and the company was simply awaiting final payment. Thereafter, $9,000 of the funds were withdrawn for community expenses and the remaining $2,352 was withdrawn and gratuitously placed in Ms. McClana-han’s IRA after the divorce.

With no reasons from the trial court we cannot determine with certainty why the trial court omitted this asset from the community. The company was started during the community and Mr. McClana-han owned 100% of the company. That would constitute a community asset. However, the company has since been liquidated and the record does support the finding that there were no assets in the company at the time of the divorce that had not been withdrawn for the benefit of |2othe community or Ms. McClanahan. Thus, we find no error in the omission of this asset from the community accounting.

Capital Contributions to Wood River Resorts

The trial court did not award reimbursement on this claim. Ms. McClanahan argues that capital contributions made by Aransas to Wood River Resorts in the years 1996, $117,000, and 1997, $316,250, should be reimbursed to the community.

Ms. McClanahan’s claim of ownership or reimbursement regarding Wood River Resorts has been thoroughly considered above. Ms. McClanahan argues here that the money paid by Aransas to Wood River Resorts should be considered community funds to which she should be entitled to one half in reimbursement.

Mr. McClanahan argues that the trial court was absolutely correct in rejecting this claim for reimbursement. Aransas, a separately held corporation advanced money to Wood River Resorts. Ms. McClana-han concedes that Mr. McClanahan did not advance the money personally.

The advancement of funds by one corporate entity to another, without more, does not involve the community of a partner or shareholder nor create a valid reimbursement claim in favor of the community. Ms. McClanahan is entitled to, as we held above, a reimbursement claim for the community labor utilized to make the deal, but she has made no showing here that the advanced funds were a product of her husband’s community labor. Aransas became the eventual owner of the Wood River property in return for the funds advanced. We find no error in the trial court decision to reject this reimbursement claim.

Capital Contributions to Junction Beef-master

The trial court did not award reimbursement on this claim. Ms. McClanahan argues that the trial court erred in not awarding her reimbursement for her share of $689,114 that was evidenced as capital contributions to Junction Beefmaster. She 12iadmits that the Junction Beefmaster partnership was formed before the marriage, but contends that $689,114 in capital contributions were made to the company during the marriage. Those funds should be considered community property since it cannot be established from where they came.

Mr. McClanahan argues to the contrary that the trial court properly rejected the claim for reimbursement. In fact, the Warranty Deed evidences that Delta bought the property or entered into the partnership, Junction Beefmaster, and not Mr. McClanahan personally. Further, other documents, including checks from Delta to Junction Beefmaster, indicate, at least in part, that the capital contributions came from Delta and not from Mr. McCla-nahan personally.

As discussed above on the Wood River Resorts claim, simply having capital contributions show up in a partnership accounting does not automatically create a valid reimbursement claim in that same amount in favor of the community of a partial owner. And, in this case, Mr. McClanahan was not even the owner. Delta, another separately owned company, was the owner. Accordingly, we find no error in the rejection of this claim by the trial court.

Contributions to McClanahan, White and McClanahan

The trial court did not make an award on this reimbursement claim by Ms. McClanahan. This company was formed in 1954 by Mr. McClanahan’s parents. Mr. McClanahan owned 53% of the company with two other owners each owning between 20 and 25% of the company. Ms. McClanahan argues that the trial court erred because the records of the company show an increase in capital contributions of $79,921, despite the fact that the company was not making money. Therefore, as with the Junction Beefmaster claim, Ms. McClanahan argues that any increase in capital in the company should be considered community property.

Mr. McClanahan points out that he testified, and it was not contradicted, that no community money or property was given to this company. Therefore, he argues |22that the burden was on Ms. McClanahan to show where the capital contributions came from and, absent some proof that it came from community property, Mr. McClanahan owes no reimbursement for money that appears in the capital account of a company of which he owns 53%.

For the same reasons provided for our determination on the Junction Beefmaster reimbursement claim, we find no merit in this claim for reimbursement. Money in a corporate capital account that appears during the course of a marriage does not, without more, equate to a community reimbursement claim. We find no error in the trial court’s rejection of this claim.

Contributions to McClanahan Barges

Ms. McClanahan presents the same argument here as for the previous three companies, that money in the capital account of the company, $26,250, should result in a reimbursement claim to the community, despite the fact that it is a separately held corporation and there is no evidence as to where the capital funds came from.

McClanahan Barges was formed in 1980, before the marriage and Mr. McClanahan owned 70% of the company. The trial court rejected the claim. For the reasons stated above, we find no error in the trial court rejection of this reimbursement claim.

Diversion of Community Opportunity to Mr. McClanahan’s Children through Delta

The trial court made no award for this claim. Ms. McClanahan is arguing here that the community is owed $82,181, which represents the percentage of income earned by Delta that benefited Mr. McCla-nahan’s children (including the child of this marriage) because they were partners in the company.

As previously stated, Delta was formed in 1986, two years before the marriage, and Mr. McClanahan’s two children were made partners in the company | sswhen it was formed. When Mr. McCla-nahan’s third child was born, she too was given a share equal to her siblings in the company. There is absolutely no evidence cited or found that shows that making his children partners in this company was done for the purpose of diverting funds from the community. In fact, what we glean from the record as a whole is that Mr. McClanahan has been doing business this way, through various corporations and partnerships, all of his life. In fact, he inherited some of the businesses from his parents, who also operated through various corporations, as will his children, since even the two year old held partnership interests. Absent a showing of intent to defraud the community or to divert funds from the community, the community has no claim for diverting of community opportunities under these circumstances. As Mr. McClanahan pointed out, his fiduciary duty was to his partners in the business and not to the community. We find no error in the trial court rejection of this claim.

Diversion of Community Opportunity to Barrios and Stock Value

Ms. McClanahan argues that the trial court erred in rejecting these reimbursement claims because they amounted to nothing more than a way for Mr. McClana-han to receive a profit from a venture without it inuring to the benefit of the community.

In 1994, during the marriage, Mr. McClanahan’s son, Chris, acquired an interest in Barrios that may have proven to be profitable. At the time, Mr. McClana-han had accepted a position as Secretary of the Department of Natural Resources under then Governor Edwards and he could not be a part of such a business. Chris received funding for the acquisition through loans from Delta and McClanahan Contractors. In 1998, Chris sold Barrios to R & B Falcon and R & B Falcon stock was issued to Chris. Aransas thereafter came into possession of 39,554 shares of R & B Falcon stock as repayment for equipment taken from Aransas and for lease cancellation. In 1999, Aransas sold the stock for $429,781, l^the amount of Ms. McClanahan’s reimbursement claim herein. Alternatively, Ms. McClanahan argues that since Chris was issued 124,989 shares of R & B Falcon stock at the time of the sale, and that stock was valued, at the time of trial, at $17 per share or $2,125,000, this amount should be reimbursed to the community for the diverting of a community opportunity.

Mr. McClanahan testified that he had little or nothing to do with the Barrios deal. He stated that because of his health and age, he was cutting back. He had accepted a position with the state that prevented him from entering into any deal to purchase Barrios. He could not have acquired the business for the community, even if he had wanted to. He testified that it was his son’s deal, and not his. Mr. McClanahan also points out that the Aran-sas stock acquisition was for the legitimate repayment for equipment and a lease and had nothing to do with the community.

Based on the foregoing, we find no error in the trial court rejection of this reimbursement claim. Mr. McClanahan could not have acquired this business on behalf of the community, even if he had wanted to, while he was holding the position as Secretary of the Department of Natural Resources. Basically, Ms. McClanahan argues that Mr. McClanahan should have made this deal for the community rather than hold the state job which precluded him from participating in such a business. We know of no legal principles that allow a wife entitlement, in a community property partition, to an award for funds her ex spouse should have earned or could have earned. In other words, a spouse has no claim for voluntary underemployment by a spouse during the marriage. Further, in calculating the value of the stock at the time of trial as the basis for her entitlement, Ms. McClanahan neglected to take into consideration the cost of acquisition and to deduct that amount from her claim. Accordingly, we find that this claim for reimbursement was properly rejected by the trial court.

| ^Diversion of Funds to McClanahan Contractors

Ms. McClanahan argues that the trial court erroneously rejected her claim for reimbursement of community funds that were diverted to McClanahan Contractors. She bases this claim on the joint tax return of McClanahan Contractors for the period of August 1, 1997 to July 30, 1998, which shows an increase in the capital contribution in the amount of $1,213,290. She contends that this money had to have been contributed by Mr. McClanahan and, therefore, it would constitute community property to which she is entitled to reimbursement.

Mr. McClanahan argues, as he did on other issues, that an entry on a corporate tax return showing increase in capital does not automatically create a community reimbursement claim. Further, there is no proof in the record where the $1,213,290 came from. Mr. McClanahan contends it actually belonged to Aransas as a subsidiary of McClanahan Contractors and was not McClanahan Contractors’ capital. This is an important distinction because Mr. McClanahan in not an owner of Aransas. Aransas is owned by McClana-han Contractors. Further, Mr. McClana-han points out that the tax document used to prove this claim covers a four month period following the divorce during which the capital contributions could have been made and would not inure to the benefit of the community. Based on the foregoing, we cannot conclude that the trial court erred in rejecting this claim for reimbursement.

Reimbursement of Separate Funds to Mr. McClanahan for Purchase of Community Home at 735 Fairfield.

The trial court awarded Mr. McClanahan $150,000 as reimbursement of separate funds used to purchase community property, namely, the family home located at 735 Fairfield. Ms. McClanahan argues that the trial court erred in allowing Mr. McClanahan this reimbursement.

|P,fiThe home was purchased in 1992 for $400,000 from Ms. McClanahan, her sister and her mother. The purchase price was paid with $100,000 of community money and $300,000 borrowed from FNBC. The loan officer for FNBC testified that the $300,000 loan was secured with either a first mortgage on Mr. McClanahan’s home, which was his separate property, located at 724 Fairfield, or by a negative pledge of that home. The loan application indicates that security for the loan was a “First mortgage on personal residence located at 724 Fairfield Avenue with appraised value of $361M as of 12/20/91 by Wayne San-doz.” No other mortgage or pledge documents were produced at trial.

Mr. McClanahan testified that when he sold 724 Fairfield, he paid off the $300,000 loan at FNBC on the community home with those proceeds. Therefore, he argues that he has traced separate funds used to purchase community property and is entitled to be reimbursed, as found by the trial court. The loan records support Mr. McClanahan’s testimony indicating payment of the loan in full in March 1993. Based on the foregoing, we find no error in the trial court ruling that Mr. McClanahan used separate property, $300,000, to purchase community property and is entitled to be reimbursed $150,000.

Accordingly, for the reasons set out above, we affirm in part, reverse in part, amend in part and render the following judgment in accord with this opinion. Costs of appeal are to be borne by the parties.

JUDGMENT ON COMMUNITY PROPERTY PARTITION

After considering the argument of counsel, the briefs, the entire record in this matter and the applicable law;

IT IS ORDERED, ADJUDGED AND DECREED that the community property partition judgment is affirmed in part, reversed in part, amended in part and rendered as follows:

127Assets to Susan F. McClanahan Value
736 Fairfield Ave. $625,000.00
Furniture at 735 Fairfield Ave. $ 14,426.00
Furniture at 320 Timberlane $ 21,816.00
Prudential Bache IRA in the name of $ 4,329.64
Susan F. McClanahan
Regions Bank IRA in the name of
Susan F. McClanahan $ 16,464.35
FNBC Account in the name of Susan
F. McClanahan $ 2,650.51
TOTAL: $683,684.50
Assets to Jack McClanahan Value
FNBC Account # 006334783 $ 1,042.65
Prudential Securities IRA $ 34,154.00
Mass Mutual $ 81,430.00
Barrios 401(k) $ 3,978.00
Bank One IRA Fruits $152,683.00
$273,287.65
Total Assets: $856,972.15
One Half Share to Each: $428,486.07 $428,486.07
Equalizing Payment: ($155,198.43) $155,198.42

IT IS ORDERED, ADJUDGED AND DECREED that the following reimbursements are due to the parties:

Reimbursements Due Susan F. McClanahan Value
Sterling Investments $ 18,912.50
Wood River Resorts $ 98,085.75
Management fees paid to Delta $ 58,125.00
FNBC Investment Account $ 1,262.68
Total reimbursement Due Susan F. McClanahan: $176,385.68
Reimbursements Due Jack McClanahan: Value
Rolex watch $ 4,925.00
Purchase of 735 Fairfield Ave. $150,000.00
Total Reimbursement Due Jack McClanahan: $154,295.00
Net Reimbursement Owed to Susan McClanahan: $ 22,090.68
Net Asset Equalization Owed to Jack McClanahan: $155,198.43
Net Due to Jack McClanahan From Susan F. McClanahan: $133,107.75

AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART AND RENDERED.

REHEARING GRANTED IN PART AND DENIED IN PART.

We grant the rehearing for the limited purpose of correcting an error in the computation of the reimbursement due Ms. McClanahan for the increase in value of Mr. McClanahan’s separate property by the Wood River acquisition attributable to his community labor. In the original opinion we reduced the amount due by 22/6% based on the factual error that Mr. McCla-nahan’s three children owned 22)6% of Ar-ansas. In fact, the children own 22/6% of Delta which would not warrant the -reduction. Accordingly, we correct the reimbursement award due Ms. McClanahan for the Wood River Resorts claim by increasing it from $98,085.75 to $126,562.50, which thereby decreases the final amount due from Ms. McClanahan to Mr. McClanahan by $28,476.75. In all other respects the rehearing application is denied.

      . The parties were divorced by judgment dated January 21, 1999 which terminated the community retroactively to March 25, 1998, the date that the Petition for Divorce was filed.

      . Mr. McClanahan facilitated the purchase of a 7Wo interest in the company by his two year old daughter, Elizabeth, through funding from another corporation and income from her IRA.

      . The only specific evidence concerning the origin of the capital contributions showed that $212,500 came from Wood River Resorts and $128,386 came from McClanahan, White, MeClanahan. These amounts were deducted in arriving at the 1.6 million dollar figure. The precise figure as testified to by Ms. McClanahan's accountant was $1,539,324.


source: Caselaw Access Project

author: |2SOL GOTHARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Pamela L. GOODMAN.
    No. 03-KA-1279.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District Court, State of Louisiana, Parish of Jefferson, Juliet Clark, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Stephen D. London, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and SUSAN M. CHEHARDY.
   |2SOL GOTHARD, Judge.

In this matter defendant, Pamela Goodman, has appealed a trial court ruling which revoked her probation. We dismiss the appeal for lack of jurisdiction.

On April 22, 1999, defendant pled guilty to four counts of theft over $500 in violation of LSA-R.S. 14:67. She was sentenced to five years on each count with counts one and two to run concurrently with each other and counts three and four to run concurrently with each other but consecutively to counts one and two. Defendant’s sentence was suspended and she was placed on ten years of active probation. She was ordered to pay various court costs and fines as well as restitution.

On September 4, 2003, defendant’s probation was revoked for failure to pay monthly restitution payments and her ten-year sentence was made executory. It is from this probation revocation that defendant appeals.

[gin brief, the State of Louisiana argues that this appeal is subject to dismissal, asserting that a probation revocation judgment is not an appealable judgment. The State correctly argues that the revocation of a defendant’s probation is subject to review in the appellate court by an application for supervisory writs, not by appeal. LSA-C.Cr.P. art. 912; State v. McDougald, 02-279 (La.App. 5 Cir. 9/30/02), 829 So.2d 525.

Since this Court’s order of December 9, 1994, we will no longer convert improperly filed appeals into the more appropriate procedural mechanism of writs under the guise of judicial economy. Accordingly, the State’s motion to dismiss the appeal is granted. However, we reserve the right of the defendant to file her application for writ of review within thirty days of the date of this opinion.

For the foregoing reasons, this appeal is hereby dismissed. The defendant shall have thirty days in which to pursue her assignments of error by means of an application for supervisory writ of review.

DISMISSED.

      . The record contains two separate commitments, one dated April 22, 1999 and the other dated August 12, 1999. There is a discrepancy between the two commitments in that the April 22, 1999 commitment indicates counts one and two were to run consecutively and counts three and four were to run concurrently with each other and counts one and two. The August 12, 1999 commitment shows counts one and two were to run concurrently with each other and counts three and four were to run concurrently with each other and consecutively to counts one and two. Both commitments show defendant was sentenced to a total of ten years.


author: LTHOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Allen A. RHEA, Jr.
    No. 03-KA-1273.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Paul D. Connick, Jr., District Attorney, Juliet Clark, Terry M. Boudreaux, Allison Monahan, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli Herrle-Castillo, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   LTHOMAS F. DALEY, Judge.

The defendant has appealed his conviction of attempted second degree murder and the 50 year sentence he received as a result of this conviction. For the reasons that follow, we affirm.

FACTS:

E.T. testified that she went to Winn Dixie on Carrollton Avenue and Canal Street in New Orleans at dusk on August 9, 1997. Just as she prepared to exit her car, a young black male, later identified as James Rhea, opened the driver’s side of her car, pointed a gun at her and demanded that she move to the passenger’s seat. E.T. complied. James Rhea then drove her to an area she described as Bamboo Road between the parishes of Orleans and Jefferson where he raped her. Thereafter, he put her in the trunk of her car and drove around for a while. While in the trunk E.T. could tell that James Rhea had stopped and picked up another male, whom E.T. later identified as defendant, Allen Rhea.

|3E.T. testified that after Allen Rhea entered the car, she heard him ask James Rhea if anyone was in the trunk. Upon hearing the question, E.T., from inside of the trunk, cried out for help. Allen Rhea, instead of offering help, responded that he would not kill her if she cooperated. James and Allen Rhea then rode around in the car with E.T. in the trunk. Later they stopped to put gas in the car. E.T. testified that at this point, Allen Rhea hit the trunk and said he would kill her if she made any noise. E.T. further testified that she heard music playing in the car, and the lyrics repeated, “You’re going to die tonight.” The car started moving again, but stopped in New Orleans East. E.T. testified that Allen Rhea opened the trunk and ordered her to get into the back seat. Allen Rhea sat in the back seat with her and asked why she went to the grocery store alone, “knowing that this is the kind of thing that ... young men do.”

E.T. explained that Allen Rhea held the gun to her head and demanded that she perform oral sex on him. When she told him that she was about to vomit, he threatened to kill her if she did. E.T. further testified that Allen Rhea and James Rhea then took turns raping her. E.T. explained that the two men started to argue while they were in New Orleans East and that is when she learned their names.

E.T. testified that they left the area, with James Rhea driving while she was in the backseat with Allen Rhea, who had the gun. Allen Rhea told her that he would let her live if she gave them $800.00. E.T. explained that she did not have any money in her bank account, but said that she could obtain it. Allen Rhea said he knew she had money because she was employed and that he would kill her because she was “playing with him.” E.T. was taken to the ATM at the Hibernia bank at Canal and Carrollton, where she attempted unsuccessfully to obtain money. Photographs from the bank’s camera were admitted into evidence, and E.T. identified herself in the backseat of her car. E.T. explained that Allen Rhea had pulled his shirt over his face to conceal his identity.

|4E.T. testified that when she was unable to obtain money, Allen Rhea became upset. She testified that he told James Rhea, “Let me just kill her right here ... Let me do the bitch right here.” James Rhea replied that they would take her somewhere else. She was taken to the St. Bernard Housing Projects where she saw a police car, but Allen Rhea told her that he would shoot her if she attempted to escape. James Rhea started driving again, but stopped to talk to someone. E.T. testified that one of the perpetrators said that they were going to “do this bitch ‘cause she said she didn’t have any money, and we know she’s lying.” E.T. testified that Allen Rhea continued to be in possession of the gun. James Rhea continued driving to Jefferson Highway near Oehs-ner Hospital where Allen Rhea and James Rhea argued about where to shoot E.T. E.T. testified that Allen Rhea said, “I know where to go.” They proceeded to River Road and Arnoult Street, where Allen Rhea ordered her to exit the car. E.T. stated that Allen Rhea told her that they were going to kill her, it would not take long, and that they would talk to her for about fifteen minutes and then kill her. E.T. explained that she was told to walk up the levee and Allen Rhea and James Rhea followed her. She testified that near the River Shack Lounge on River Road, she saw a man coming toward her. Once again, Allen Rhea threatened to shoot her and to kill the man if she tried to flee. At the top of the levee, Allen Rhea handed the gun to James Rhea while Allen Rhea urinated. E.T. testified that she resumed walking with James and Allen Rhea behind her and then she was shot twice. One of the shots went through her abdomen and the other went through her side. E.T. testified that she lay on the ground, pretending to be dead while she heard James and Allen Rhea leave. After James and Allen Rhea ran off, she crawled across the levee and made her way to the street. James and Allen Rhea were still in the area and yelled at her to go to the car. Instead, she went to the street and flagged down a vehicle. E.T. testified that a man in a truck stopped, she told him what happened, and he brought her to | BOchsner Hospital. E.T. explained that when the man stopped, James and Allen Rhea hid behind a vehicle.

E.T. testified that at the hospital, she gave a description of the perpetrators to the police. In particular, she said that one of them was called “Allen” and had two gold teeth and the other was called “James.” She subsequently made positive identifications of Allen and James Rhea from photographic lineups and she positively identified Allen Rhea at trial.

New Orleans Police Officer Howard Martin testified that on August 10, 1997, he spotted a car matching the description of the victim, E.T.’s, stolen car. After a high-speed chase, police officers discovered that the car was occupied by James Rhea and his cousin, Roy Cain, along with two black females. Through statements given by James Rhea and Roy Cain, the police learned that James Rhea was a participant in the events involving E.T. and that Roy Cain was not. The police also obtained a warrant for Allen Rhea’s arrest and a search warrant for his residence. The police searched the residence, but recovered no evidence. Allen Rhea was not at the residence at the time of the search. Allen Rhea’s mother, Lisa Turner, told the police that her son said James Rhea kidnapped a woman and stole a car. One of the officers involved in the search, Lieutenant Steve Buras, testified that Ms. Turner told him that Allen Rhea had admitted that both he and James Rhea had sex with the woman. Meanwhile, Allen Rhea, accompanied by his father, turned himself in to the police.

Nineteen-year-old Roy Cain (Roy) testified, denying participation in these offenses. Roy testified that he saw James, his cousin, at the Winn Dixie armed with a gun. James told Roy that he was going to “go do something.” Roy testified that he saw someone in a car, and he left the area when he saw that both James and the car were gone. Roy explained that he saw the car the next morning when James came to his residence. Roy admitted to prior convictions and said that he |fiwas currently housed in the Jefferson Parish jail, but had previously been incarcerated in Hunt Correctional Center.

At trial, the State’s forensic DNA analyst, Nikia Redman, testified that Roy Cain was excluded from every piece of evidence tested. Ms. Redman testified that DNA consistent with the DNA of Allen Rhea and James Rhea was found in several samples. In particular, Ms. Red-man testified that DNA testing of the victim’s internal and external vaginal samples indicated that Allen Rhea and James Rhea could not be excluded as donors of the DNA in the samples. According to Ms. Redman, 99.9 percent of the Caucasian, African American, and Hispanic populations were excluded as possible donors to these samples.

The defense did not present any witnesses.

At the conclusion of trial, the twelve-person jury returned a verdict of guilty of attempted second degree murder. Allen Rhea was sentenced to 50 years of imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Further, Allen Rhea was denied diminution of sentence because he had committed a crime of violence. This timely appeal followed.

ASSIGNMENT OF ERROR NUMBER ONE:

At a pretrial hearing, Allen Rhea argued that evidence of the other crimes that occurred in Orleans Parish preceding the attempted murder should be excluded as unduly prejudicial. The trial court denied the motion. In his First Assignment of Error, Allen Rhea contends that the trial judge improperly denied this Motion in Limine to exclude evidence of the other crimes that preceded the attempted murder. The State responds that the trial judge properly denied the motion because the evidence was “res gestae” and was independently relevant.

|7Evidence of other crimes or bad acts committed by a criminal defendant is generally not admissible at trial. LSA-C.E. art. 404 B(1); State v. Prieur, 277 So.2d 126, 128 (La.1973). However, evidence of other crimes, wrongs or acts may be introduced when it is independently relevant or when it relates to conduct, formerly referred to as res gestae, that “constitutes an integral part of the act or transaction that is the subject of the present proceeding.” LSA-C.E. art. 404(B)(1). A close connexity between the charged and uncharged conduct is required to insure that “ ‘the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.’ ” State v. Noten, 01-1818, p. 2 (La.6/25/01), 791 So.2d 607, 609 (per curiam) (quoting State v. Haarala, 398 So.2d 1093, 1097 (La.1981)).

The test for integral act (res ges-tae) evidence is, therefore, not simply whether the State might somehow structure its case to avoid any mention of the uncharged act or conduct, but whether doing so would deprive the State’s case of narrative momentum and cohesiveness, “ ‘with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ” State v. Colomb, 98-2813, p. 4 (La.10/1/99), 747 So.2d 1074, 1076, quoting Old Chief v. United States, 519 U.S. 172, 186, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997).

In State v. Edwards, 406 So.2d 1331 (La.1981), cert. denied, 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982), the Louisiana Supreme Court held that evidence of other crimes regarding the criminal activity before and after the victim’s death was properly admissible as “res gestae” evidence. In that case, an accomplice recounted that defendant had suggested to him and another person that they make a “hit” at a “lady’s” house. The three first went to a grocery store where defendant stole some wine. Then they went “looking” for a car so that they could | «steal the “lady’s” ear, but two attempts at theft failed. Ultimately, the group robbed the victim at her home, killed her, and fled in the victim’s car. Thereafter, defendant, who was driving the victim’s car, followed a woman on a college campus and told the accomplice to snatch a woman’s purse. The defendant proposed another “hustle,” and parked across the street from a convenience store. However, the appearance of a police officer terminated the night’s activities. The Court pointed out that the murder was connected to the string of criminal activity stating:

The murder of Ms. Todd did not occur in a vacuum.... The theft of the victim’s car can hardly be said to be unrelated to her death. Using the victim’s car, defendant and his cohorts continued their night of criminal activity. The sequence of events did indeed form “one continuous transaction” with the crime for which defendant was being tried and therefore were properly admitted under the res gestae exception to the prohibition against the introduction of other crimes evidence. As this court remarked in State v. Curry, 325 So.2d 598, 602 (La., 1976), “(without (such) evidence, the complete story of the crime (could) not be told.”

State v. Edwards, 406 So.2d at 1351.

As in Edwards, the attempted murder of E.T. did not occur in a vacuum. It began with the kidnapping by James Rhea and culminated in the attempted murder of E.T. During this time leading up to the shooting, Allen Rhea repeatedly told E.T. he would kill her, forced her to perform sex acts at gunpoint, and told her he would not kill her if she gave him money. These events were so intertwined with the attempted murder that the State could not have told the complete story to the jury without evidence of these events.

Further, as pointed out by the State, the evidence had independent relevance other than to show that Allen Rhea was a bad person. Here, the State was required to prove that Allen Rhea had the specific intent to kill E.T. See, State v. Zaldivas, 02-690 (La.App. 5 Cir. 12/30/02), 836 So.2d 577, 580-581, writ denied, 03-705 (La.10/17/03), 855 So.2d 757. Allen Rhea’s statements and actions preceding the | ¡¡attempted murder were relevant to prove that he had the specific intent to kill E.T. Accordingly, this Assignment of Error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO:

In his Second Assignment of Error, Allen Rhea contends that he received ineffective assistance of counsel because his attorney failed to call an unnamed expert DNA witness who prepared a report indicating that Allen Rhea was excluded as a DNA donor to the evidence recovered from E.T. According to Allen Rhea, the expert’s testimony and report was relevant to cast doubt upon E.T.’s identification of him as a perpetrator. Allen Rhea reasons that if the victim was incorrect in her identification of him as a rapist, then it would follow that she was also incorrect in her identification of him as one of the two people who attempted to kill her. The State responds that the record does not contain sufficient evidence to address this assignment on appeal. Rather, the State contends that the matter should be relegated to post-conviction relief.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, Section 13 of the Louisiana Constitution of 1974. When a defendant raises a claim of ineffective assistance of counsel, that claim is evaluated under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must show (1) that defense counsel’s performance was deficient, and (2) that the deficiency prejudiced the defendant. To show prejudice under this test, the defendant must demonstrate that the outcome of the trial would have been different, but for counsel’s unprofessional conduct. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064.

A claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than direct appeal, so as to 110afford the parties an adequate record for review. State v. Truitt, 500 So.2d 355, 359 (La.1987). Only when the record contains sufficient evidence to decide the issue and the issue is properly raised by assignment of error on appeal, may it be addressed in the interest of judicial economy. State v. Peart, 621 So.2d 780, 787 (La.1993). See also, State v. Stowe, 93-2020, p. 8 (La.4/11/94), 635 So.2d 168, 173, in which the Louisiana Supreme Court stated that a claim of ineffective assistance of counsel is more properly raised by application for post-conviction relief in the trial court, where a full evidentiary hearing may be conducted if warranted.

The record reflects that, on redirect examination, the State’s DNA expert, Nikia Redman, denied being aware of the existence of any report or testing contradicting her findings. After the witness left, defense counsel, Evans Schmidt, approached the bench to inform the trial judge that he had a report that contradicted the State’s DNA test results and excluded Allen Rhea as a perpetrator. The court stated for the record that the defense had stated on the previous day that it did not have an expert witness to call for trial. The defense counsel said that he had not planned to call the witness, but that the State’s last question to the expert had opened the door to allow the defense to introduce the report. The prosecutor stated for the record that a former defense counsel in the case, Ms. Wiggins, had stated that she had an expert witness, but that there was no report. Further, the prosecutor said that if she had known such a report existed, she would not have asked the final question to the State’s expert about a conflicting report. Finally, the trial judge stated that the defense’s report could not be introduced into evidence, but that he would permit the defense to cross-examine the State’s expert with hypothetical questions based upon the report. The record reflects that the defense did not recall the State’s expert and did not proffer the expert’s report into evidence.

I^The record before us does not clearly establish whether or not a conflicting DNA report existed, and if it existed whether there was some strategic reason why defense counsel did not utilize the report. Because the record is insufficient to review Allen Rhea’s ineffective assistance of counsel claim, we find that this issue should be more properly addressed in an Application for Post^Conviction Relief.

ASSIGNMENT OF ERROR NUMBER THREE:

In his Third Assignment of Error, Allen Rhea contends that the maximum sentence of fifty years of imprisonment is constitutionally excessive because he was sixteen years old at the time of the crime, had no criminal history, was not the shooter, and did not originally kidnap the victim. The State responds that the record supports the sentence imposed.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992). Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. Williams, 98-1146, p. 22 (La.App. 5 Cir. 6/1/99), 738 So.2d 640, 655, writ denied, 99-1984 (La.1/7/00), 752 So.2d 176. However, LSA-C.Cr.P. art. 881.4(D) provides that the court of appeal “shall not” set a sentence aside on grounds of excessiveness if the record supports the sentence imposed. See, State v. Richmond, 98-1015 p. 8 (La. App. 5 Cir. 3/10/99), 734 So.2d 33, 38.

Allen Rhea was convicted of attempted second degree murder and, thus, faced a penalty of imprisonment from ten to fifty years at hard labor without | ^benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:27; 14:30.1. Before imposing sentence, the victim, E.T., made a statement in open court. She asked the court to consider that she had asked defendant, Allen Rhea, for help, but he chose not to. The victim, E.T., continued:

I would ask the court to consider that he intended to kill me. He took pleasure in taunting me and letting me know that that [sic] was his intent to kill me. And the only reason that I’m sitting here is because of the grace of God.

Before the judge imposed sentence, the defense urged the court to consider that Allen Rhea was sixteen when he committed the offense, he had no prior criminal record, and that the evidence was not clear he was the shooter. Thereafter, the trial judge imposed the fifty-year sentence with reasons, including that Allen Rhea had “manifested deliberate cruelty to the victim” and had used threats and actual violence in the offense.

On appeal, “the only relevant question is whether the penalty imposed is disproportionate to the offense, not whether another sentence might seem more appropriate.” State v. Taves, 03-518 (La.12/3/03), 861 So.2d 144, 145. Once imposed, a sentence will not be set aside absent manifest abuse of the trial court’s wide discretion to sentence within statutory limits. State v. Tran, 97-640, p. 12 (La.App. 5 Cir. 3/11/98), 709 So.2d 311, 318. In the present case, we find that the record supports the sentence imposed. The victim, E.T.’s, trial testimony reflects that Allen Rhea repeatedly told her that he would kill her and he sexually assaulted her at gunpoint. Further, even if Allen Rhea did not fire the gun, E.T. testified that Allen Rhea was more in control and that the situation worsened after he became involved. Based on the foregoing, we find no abuse of the trial judge’s discretion in sentencing the defendant, Allen Rhea.

J^ERROR PATENT DISCUSSION:

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Two errors are noted on the commitment. First, the transcript reflects that the trial judge stated at sentencing that Allen Rhea was not eligible for diminution of sentence because he had committed a crime of violence whereas the commitment does not. The trial judge was within his discretion to deny diminution of sentence pursuant to LSA-C.Cr.P. art. 890.1, which provides that the sentencing court may deny diminution of sentence to a person who is convicted of a crime of violence who is sentenced to imprisonment. Attempted second degree murder is a crime of violence as provided in LSA-R.S. 14:2(13). Second, the commitment reflects that Allen Rhea was tried by a judge, while the transcript reflects that Allen Rhea was tried by a jury.

Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, this matter is remanded to the trial court to allow the trial judge to correct the commitment to conform with the transcript.

CONCLUSION:

For the foregoing reasons, Allen Rhea’s sentence and conviction are affirmed. This matter is remanded to the trial court for the limited purpose of correcting the commitment form.

CONVICTION AND SENTENCE AFFIRMED; MATTER REMANDED

      . As provided by LSA-R.S. 46:1844(W)(l)(a), the sex crime victim is identified by her initials.

      . The State also presented the testimony of another expert, Patricia Daniels, who testified in the field of detection and identification of bodily fluids.

      . LSA-R.S. 14:24 provides that "[a]ll persons concerned' in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”


author: | ¡WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Kirk A. FRISELLA.
    No. 03-KA-1213.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Kenneth Bordelon, Assistant District Attorneys, Gretna, LA, for the State of Louisiana, Plaintiff/Appellee.
    Mark P. Burton, Gretna, LA, for Kirk Frisella, Defendant/Appellant.

      Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

Defendant, Kirk A. Frisella, appeals his conviction of driving while intoxicated, third offense, a violation of LSA-R.S. 14:98(D)(1). Defendant pled guilty to the charge pursuant to State v. Crosby, and assigns as error the trial court’s denial of this Motion to Quash in which he challenged the constitutionality of his guilty plea on the predicate offense. For the reasons stated more fully herein, we reverse the ruling of the trial court and remand the case for further proceedings.

FACTS AND PROCEDURAL HISTORY

On December 12, 2002, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Kirk A. Frisella, with driving while intoxicated, third offense, in violation of LSA-R.S. 14:98(D). On January 16, 2003, defendant was arraigned on the charge and entered a plea of not guilty. Thereafter, defendant filed various pre-trial motions including a Motion to Quash and a Motion to Suppress. On February 2, 2003, after requesting and being denied a continuance, defendant withdrew his Motion to Suppress. Thereafter, on March 18, 2003, defendant’s Motion to Quash was heard and denied.

1¡¡That same day, defendant withdrew his plea of not guilty and entered a plea of guilty to the charges pursuant to State v. Crosby, 338 So.2d 584 (La.1976). Thereafter, defendant was sentenced to two years of imprisonment at hard labor with the first thirty days of his sentence served without benefit of probation, parole or suspension of sentence and ordered to pay a fine as set out on the conditions of probation form signed by him and his attorney. The remainder of defendant’s sentence was suspended and defendant was ordered to undergo an evaluation to determine the nature and extent of his substance abuse disorder. The trial court also ordered defendant to enter an in-patient substance abuse program for not less than four weeks and not more than six weeks and ordered that, upon completion of the program, defendant serve the remainder of his sentence in home incarceration. Defendant subsequently filed a timely motion for appeal.

ASSIGNMENT OF ERROR

Is it permissible under the Constitution of the State and the Statutes to sustain a conviction of a person who is not advised by the Trial Court of his Constitutional right to an attorney and of his Right to Have an Attorney Present without charge, if he cannot afford one[?]

DISCUSSION

A guilty plea normally 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. Raines, 00-1942 (LaApp. 5 Cir. 5/30/01), 788 So.2d 630, 632. However, a defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. State v. Crosby, supra; State v. King, 99-1348 (LaApp. 5 Cir. 5/17/00, 761 So.2d 791), writ denied, 00-1824 (La.6/29/01), 794 So.2d 822.

|4In the instant case, defendant failed to specify which pre-trial ruling he desired to reserve for appeal as part of his guilty plea entered pursuant to State v. Crosby, 338 So.2d 584 (La.1976). However, the record reflects the only pretrial ruling in the instant case was on defendant’s Motion to Quash. Accordingly, we find that defendant preserved his right to appeal the trial court’s ruling on the Motion to Quash.

On appeal defendant argues that the trial court erred in refusing to grant his Motion to Quash the Bill of Information. Defendant contends that his predicate guilty plea was constitutionally infirm because the trial court failed to assess his understanding of his right to an attorney by making an inquiry into his education and background and by failing to advise him of his right to be appointed an attorney if indigent. The State responds that the transcript of the hearing on defendants guilty plea and a signed waiver of rights form sufficiently establish defendant was advised of his right to counsel and waived that right.

In State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556, the Louisiana Supreme Court extended the burden-shifting principles applicable to habitual offenders, as established in State v. Shelton, 621 So.2d 769, 779-780 (La.1993), to the recidivist provisions of the DWI statute. State v. Theriot, 00-0870 (La.App. 5 Cir. 1/30/01), 782 So.2d 1078, 1080. When a defendant challenges the constitutional validity of a predicate DWI conviction resulting from a guilty plea, the State bears the initial burden of proving 1) the existence of the guilty plea, and 2) that he was represented by counsel during the plea. State v. Carlos, supra, 738 So.2d at 559; State v. Theriot, supra, 782 So.2d at 1080. If the State meets this burden, the defendant must produce affirmative evidence indicating an infringement of his rights or a procedural irregularity in the taking of the plea. Id. If the defendant satisfies that requirement, then the burden of proving the constitutionality of the plea shifts back to the State. Id. This does not abrogate the ^longstanding jurisprudence requiring the State to prove that the defendant knowingly and intelligently waived his right to counsel before pleading guilty to a predicate misdemeanor DWI that is used to enhance a subsequent DWI plea. State v. Granier, 03-447 (La.App. 5 Cir. 9/30/03), 857 So.2d 1176, 1178-1179; State v. Kerwin, 02-103 (La.App. 5 Cir. 5/15/02, 821 So.2d 28).

Article I, Section 13 of the Louisiana Constitution provides as follows regarding the right to counsel:

When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment....

Additionally, LSA-C.Cr.P. art. 514 requires that “[t]he minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant’s right to counsel, including the right to court-appointed counsel, and that he waived such right.”

Because an accused managing his own defense relinquishes many of the traditional benefits associated with the right to counsel, he must knowingly and intelligently forego those benefits in order to represent himself. The trial judge must determine whether the accused who wishes to represent himself is competent to waive counsel and is voluntarily exercising his informed free will. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Carpenter, 390 So.2d 1296 (La.1980).

The trial court’s inquiry should involve more than an interchange of “yes” or “no” responses from the defendant. State v. Kirsch, 01-1017, (La.App. 5 Cir. 3/26/02), 815 So.2d 215, 218. A waiver of counsel in order that an accused may 1 fienter into self-representation must be clear and unequivocal. Kirsch, 815 So.2d at 218.

Before accepting a misdemean- or guilty plea, the trial judge should expressly advise defendant of his right to counsel and to appointed counsel if he is indigent. State v. Strain, 585 So.2d 540, 543-544 (La.1991); State v. Garrity, 97-958 (La.App. 5 Cir. 1/27/98), 708 So.2d 1096, 1098. Once informed of the right to counsel, the defendant may intentionally waive that right. State v. Strain, 585 So.2d at 542; State v. Perez, 02-587 (La.App. 5 Cir. 11/26/02), 831 So.2d 542, 545, writ denied, 03-0221 (La.5/2/03), 842 So.2d 1100. The judge should determine if the waiver is knowing and intelligent under the circumstances. State v. Strain, 585 So.2d at 543-544; State v. Garrity, 708 So.2d at 1098. In determining the know ing and intelligent nature of the waiver of right to counsel, the trial judge should consider such factors as the age, education, experience, background, competency and conduct of the accused as well as the gravity of the offense. State v. Rodrigue, 01-377 (La.App. 5 Cir. 8/28/01), 795 So.2d 488, 493; State v. Pickett, 99-532 (La.App. 5 Cir. 10/26/99), 746 So.2d 185, 188. Whether an accused has made a knowing and intelligent waiver of his right to counsel is a question which depends upon the facts and circumstances of each case. State v. Strain, 585 So.2d at 542; State v. Rodrigue, 795 So.2d at 493. The Louisiana Supreme Court has recognized that crimes of driving while intoxicated are non-complex crimes, and almost self explanatory, thus requiring less judicial inquiry to determine if defendant understood his waiver of counsel in the case of a guilty plea. State v. Strain, 585 So.2d at 542.

In the instant case, in conjunction with his motion to quash, defendant introduced a copy of the transcript of the 1995 guilty plea and a signed Waiver of Rights form. The transcript reflects defendant was advised of the following:

RTHE COURT:
Mr. Frisella, you are entering this plea. Do you understand you are waiving your constitutional rights to the trial, to the appeal, the right to require the State to prove you guilty beyond a reasonable doubt, the right to cross-examine the witnesses that would have been called to testify, and your right not to be compelled to incriminate yourself? You are also doing this without the benefit of an attorney. You are waiving your rights. Do you understand that?
THE DEFENDANT:
Yes, Sir.

Furthermore, the Waiver of Rights form signed by defendant provided in part the following:

I UNDERSTAND THAT BY ENTERING A GUILTY PLEA I AM GIVING UP THE FOLLOWING RIGHTS:
My right to a (jury) trial.
My right to require the State to prove my guilt beyond a reasonable doubt.
My right to cross-examine witnesses called to testify against me.
My right not to be compelled to incriminate myself.
My right to appeal.
I UNDERSTAND THAT BY PLEADING GUILTY I AM AUTHORIZING THE COURT TO IMPOSE UP TO THE MAXIMUM SENTENCE PROVIDED BY LAW WITHOUT A TRIAL.
I UNDERSTAND MY RIGHT TO THE ASSISTANCE OF A LAWYER AND WISH TO WAIVE THAT RIGHT AND ENTER A GUILTY PLEA WITHOUT THE ASSISTANCE OF A LAWYER.
I UNDERSTAND THAT THIS PLEA CAN BE USED AGAINST ME AS A SECOND OR THIRD OFFENDER, AND THAT THIS PLEA CAN SERIOUSLY AFFECT ME UNDER THE HABITUAL OFFENDER LAW.

In State v. Theriot, 00-870 (La.App. 5 Cir. 1/30/01), 782 So.2d 1078, the State introduced a copy of a minute entry, Waiver of Rights form, and a transcript of the defendant’s predicate guilty plea. The transcript reflected that defendant was properly advised of his Boykin rights but was not specifically advised of his 1 aright to counsel. However, the waiver of rights form encompassed all of the rights stated by the trial judge as well as the right to counsel and appointed counsel if indigent. Further, the record of the predicate offense reflected that the defendant had been informed of his right to counsel at arraignment, and the signed waiver of rights form acknowledged his right to ask questions. Based on these factors, this Court concluded that defendant validly waived his right to counsel, despite the trial judge not inquiring into the defendant’s background or education or verbally advising defendant of his right to counsel.

In the instant case, the “Waiver of Rights” form signed by defendant indicates he was advised of his right to counsel. However, an examination of the 1995 guilty plea colloquy fails to clearly indicate that defendant was verbally advised of that right. Furthermore, unlike the situation in Theriot, there is no indication in the record that defendant was afforded the opportunity to ask questions, that he met with the district attorney concerning the 1995 guilty plea, or that the plea agreement was to defendant’s benefit. Additionally, neither the “Waiver of Rights” signed by defendant nor the guilty plea colloquy reflects that defendant was specifically advised of his right to appointed counsel if he was indigent as required by the constitution and LSA-C.Cr.P. art. 514.

Since the documents introduced concerning defendant’s 1995 guilty plea fail to show that defendant was advised of his right to court appointed counsel as mandated by LSA-C.Cr.P. art. 514, we fail to find that defendant’s waiver of counsel was intelligently and knowingly made. See, State v. Vezina, 391 So.2d 450, 452 (La.1980); State ex rel. Bishop v. Blackburn, 384 So.2d 406, 408 (La.1980). Furthermore, the record fails to contain any evidence in the record from which the trial court could have determined defendant knowingly and intelligently waived his right to counsel. See, State v. Granier, 03-447 (La.App. 5 Cir. 9/30/03), 857 So.2d 1176, 1182; State v. Deroche, 96-1376 (La.11/8/96), 682 So.2d 1251.

| ^Accordingly, we conclude that the trial court erred in failing to grant defendant’s Motion to Quash the 1995 predicate guilty plea in this case.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Although errors patent were found regarding the sentence, our disposition of this appeal renders this discussion moot.

CONCLUSION

Accordingly, the ruling of the trial court denying Kirk Frisella’s motion to quash as it applies to the 1995 predicate offense is hereby reversed. The case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.