author: LPER CURIAM.

text:
    STATE of Louisiana v. William TAVES.
    No. 2003-K-0518.
    Supreme Court of Louisiana.
    Dec. 3, 2003.

      Richard P. Ieyoub, Attorney General, Michael Harson, District Attorney, Bart J. Bellaire, Calvin E. Woodruff, Jr., for Applicant.
    Lawrence C. Billeaud, Lafayette, for Respondent.
   LPER CURIAM.

The state charged defendant-respondent by bill of information with violations of La.R.S. 14:46.1, false imprisonment when the offender is armed with a dangerous weapon, and La.R.S. 14:44.1, second degree kidnapping. After trial by jury in October, 2001, he was found guilty as charged on both counts. The trial court sentenced respondent to concurrent terms of 10 years imprisonment at hard labor for false imprisonment and to 25 years imprisonment at hard labor for second degree kidnapping, two years without benefit of parole, probation, or suspension of sentence. The trial court also ordered that the sentences will run consecutively with any other sentence previously imposed. On appeal, the Third Circuit affirmed respondent’s convictions, rejecting his argument that the evidence did not support | ¡¡the jury’s verdict on either count, but vacated his sentences as excessive and remanded the case for resentencing. State v. Taves, 02-0709 (La.App. 3rd Cir.1/15/03), 846 So.2d 1 (Cooks, J, dissenting). This Court granted the state’s application to reverse that decision and reinstate respondent’s sentences because we agree with the dissenting views of Judge Cooks that no abuse of the court’s sentencing discretion appears on the present record.

The charges in this case stemmed from a month-long incident in February 2000, after respondent and the victim, Farrah Daigle, rented a home in a secluded area by the Vermillion River in Abbeville, Louisiana. Daigle testified at trial that during the month, following a shooting incident at her mother’s home in Lafayette, respondent held her hostage to his fears that she would disclose his role in the shooting incident or end their relationship by walking out on him. The victim told jurors that respondent denied her access to a telephone or a vehicle, and frequently threatened her with a gun, even discharging the weapon around her to frighten her and to impress upon her that he would, in fact, hunt her down and kill her if she ever left him. On one occasion, which formed the basis of the second degree kidnapping charge, respondent first confronted Daigle at gunpoint, ordered her to strip, then told her to dress and drove her to the Vermillion River, where he conducted a mock murder/suicide scenario which had Daigle on the ground begging for her life with the gun pointed at her head. The incident ended with several shots aimed past Dai-gle as she walked back to the car without turning around in a test of loyalty and trust dictated by respondent. Finally, at the end of February, respondent allowed Daigle and one of her friends to leave home to run errands. Although she had in the past not taken advantage of any opportunity to escape because she feared that respondent would follow through on his threats to | skill her, on this occasion she sought refuge in the home of her uncle in Scott, Louisiana. When respondent pursued her there, she called the police and had him arrested. Daigle then took refuge in a battered women’s shelter in Lafayette, Louisiana, and eventually moved out of state.

In conducting a sufficiency review of the evidence, the Third Circuit acknowledged that much of Daigle’s testimony about the events of that February appeared contradictory or inconsistent with the testimony offered by other witnesses. Taves, 02-0709 at 9, 846 So.2d at 7. However, the court of appeal concluded that Daigle’s uncontradicted and undisputed testimony about an incident occurring on February 7, in which respondent backed her against a living room wall and fired a shot past her ear to keep her from walking out of the home and ending their relationship, supported the jury’s verdict on the false imprisonment count. Id., 02-0709 at 8-9, 846 So.2d at 7. Similarly, the incident at the Vermillion River where respondent had her begging for her life after forcing her from the home at gunpoint, was also un-contradicted and undisputed, and supported the jury’s verdict of second degree kidnapping, under a trial court’s instruction that the offense is committed when victim is forcibly seized and carried from one place to another by an offender armed with a dangerous weapon. La.R.S. 14:44.1(A)(5). Jet, 02-0709 at 11, 846 So.2d at 8.

| ¿However, the court of appeal also found that these same circumstances failed to support the sentences imposed by the court on either count. With regard to the sentence of 10 years imprisonment at hard labor, the maximum term for the offense under La.R.S. 14:46.1, the majority on the panel found that the sentence made “no measurable contribution to the acceptable penal goals and is grossly disproportionate to the severity of the crime as to shock one’s sense of justice.” Taves, 02-0709 at 16, 846 So.2d at 11. The court of appeal reached the same conclusion with regard to the 25-year term imposed on the second degree kidnapping count, although the court acknowledged that the penalty is a “midrange sentence” for the offense. Id., 02-0709 at 16-17, 846 So.2d at 11-12. Dissenting, Judge Cooks expressed her opinion that the sentences did not shock her sense of justice and that a defendant in a criminal case otherwise has no right “to comparison shop or seek competitive bids during the sentencing phase of a criminal proceeding.” Taves, 02-0709 at 1, 846 So.2d at 13 (Cooks, J., dissenting).

A trial judge has broad sentencing discretion in Louisiana, and a reviewing court may not set sentences aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). However, in appropriate circumstances, a reviewing court has the duty to carry out its mandate under La. Const, art. I, 20. Sentence review by appellate courts in Louisiana began with our seminal decision in State v. Sepulvado, 367 So.2d 762 (La.1979), and we made clear in the opinion that the determination of whether a sentence which otherwise falls within the range of punishment provided by the legislature for a particular offense is excessive, ie., so disproportionate to the offense that it represents the needless infliction of pain and suffering, State v. Bonanno, 384 So.2d 355, 357 (La.1980), entails more than a priori judgments by an appellate court. We held that “the statutory criteria 1 ¡¡legislatively provided by La.C.Cr.P. art. 894.1 (1977), which are similar to those evolved by courts in other American jurisdictions with a constitutional or statutory duty to review excessiveness, provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives.” Sepulvado, 367 So.2d at 769. Those criteria have evolved considerably since onr decision in Sepulvado and now encompass over 30 sentencing factors. Although no factor is accorded greater weight than any other factor by the statute, “ ‘[i]n assessing the nature and gravity of an offense, the courts have repeatedly emphasized the element of violence and danger to the person.’ ” State v. Telsee, 425 So.2d 1251, 1254, n. 1 (quoting Hart v. Coiner, 483 F.2d 136, 141 (4th Cir.1973)).

In the present case, at sentencing the trial judge stated that he had reviewed “a presentence investigation report, the seriousness of the offenses, [and] the recommendation of the probation and parole officer in this case which does not recommend probation,” as well as the impact of the crimes on the victim. The trial court did not articulate its reasons for sentence in terms of any of the factors provided by La.C.Cr.P. art. 894.1, and it did not have to justify the decision not to suspend any part of the sentence imposed on the second degree kidnapping count. See La.C.Cr.P. art. 893(A) (“The court shall not suspend the sentence of a conviction for a crime of violence as defined in La.R.S. 14:2(13) ... (r).... ”). With regard to the lengths of the terms imposed, by any measure, respondent’s conduct manifested deliberate cruelty to the victim, and he had used threats of or actual violence, as well as a dangerous weapon, in the commission of the crimes. La.C.Cr.P. art. 894.1(B)(1), (6), (10). He had also “foreseeably endangered human Ijife by discharging a firearm during the commission of an offense which has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another.” La.C.Cr.P. art. 894.1(B)(18). In addition, the presentence report reveals that the victim suffered hearing loss and a broken foot as the result of the crimes and paid her medical expenses out of her own pocket, including mental heath treatment for post-traumatic stress disorder, circumstances indicating that defendant’s conduct “resulted in a significant permanent injury or significant economic loss to the victim....” La.C.Cr.P. art. 894.1(B)(9).

The presentence report also reflects, and defense counsel conceded at sentencing, that the defendant had a prior felony conviction in May 2001 for aggravated criminal damage to property, a crime of violence listed in La.R.S. 14:2(13)(u). According to the report, he received a sentence of seven years imprisonment at hard labor, all but two years of the term suspended, with three years active probation. Cf. La.C.Cr.P. art. 893(A). Respondent remained classified as a first offender for sentencing purposes in the present case because he committed the crimes against Daigle before, not after, his conviction for aggravated criminal damage to property. See La.R.S. 15:529.1(A)(1). Nevertheless, the record shows that respondent had been involved in separate incidents within one year marked by a total of four crimes of violence, including not only aggravated criminal damage to property and second degree kidnapping, but also aggravated assault, La.R.S. 14:2(13)(g) and, by discharging a firearm in the course of the offense, false imprisonment. La.R.S. 14:2(13) (crime of violence includes any offense “that involves the possession or use of a dangerous weapon.”). He also has misdemeanor convictions in Indiana in 1995 following his arrest on several counts of criminal confinement, the equivalent of false imprisonment in Louisiana, |7see Ind.Code Ann. § 35-42-3-3 (Lexis, 1998), and for malicious injury/destruction of property, escape, and theft in Oklahoma in 1998. Respondent’s prior record suggests that he “was persistently involved in similar offenses not already considered as criminal history or as part of a multiple offender adjudication,” La.C.Cr.P. art. 894.1(B)(12). It also precludes a finding that the defendant had “no history of prior delinquency or criminal activity or has led a law abiding life for a substantial period of time before commission of the instant crime.” La.C.Cr.P. art. 894.1(B)(28). In that same period of time, the presentence report shows a sporadic work history and a failed marriage for the 31-year-old offender.

In the present case, the various factors listed in La.C.Cr.P. art. 894.1 thus serve their intended purpose by providing “insight into the nature of the offender and his offense.” Telsee, 425 So.2d at 1253. Given concurrent penalties in the present case, the touchstone of the inquiry into whether the court has imposed needless pain and suffering grossly disproportionate to the crimes is respondent’s longer sentence for second degree kidnapping. In finding that midrange sentence disproportionate, the court of appeal used as a basis for comparison a single case in which the defendant received a sentence of 10 years imprisonment at hard labor for falsely imprisoning his wife and one of his daughters at gunpoint in the bathroom of their own home while conducting a stand-off with a S.W.A.T. team. State v. Reese, 34,275 (La. App. 2nd Cir.12/20/00), 774 So.2d 1164. The trial judge in Reese might well view the circumstances of the present case in a different light and impose different penalties, although there is no indication in the Reese opinion that the defendant actually shot at the victims.

However, we have stressed that on appellate review of sentence, the only relevant question is whether the penalty imposed is disproportionate to the offense, |Rnot whether another sentence might seem more appropriate. State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959; see also State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608. Although circumstances of the eases differ significantly, midrange sentences for the crime of second degree kidnapping are not uncommon in Louisiana. See, e.g., State v. Prince, 29,208 (La.App. 2nd Cir.1/24/97), 688 So.2d 643 (20 years); State v. Woodberry, 95-2402 (La.App. 4th Cir.12/27/96), 686 So.2d 984, writ denied, 97-0277 (La.6/20/97), 695 So.2d 1351 (35 years); State v. Meche, 95-0797 (La.App. 3rd Cir.12/6/95), 664 So.2d 828, writ denied 96-0493 (La.5/10/96), 672 So.2d 920 (25 years).

We therefore find that the trial court, which otherwise followed the general rule in La.C.Cr.P. art. 883 by imposing concurrent terms in the present case to run consecutively to any other sentence imposed in an unrelated case, did not abuse its broad sentencing discretion. Accordingly, the decision of the court of appeal is affirmed in part and reversed in part, respondent’s sentences are reinstated, and this case is remanded to the district court for execution of sentence.

DECISION OF COURT OF APPEAL AFFIRMED IN PART, REVERSED IN PART; SENTENCES REINSTATED; CASE REMANDED.

      . The state charged respondent separately with aggravated assault in violation of La.R.S. 14:37, a misdemeanor offense. After a bench trial conducted simultaneously with the jury proceedings on the felony charges, the tried court found respondent guilty of that offense. The court sentenced respondent to six months imprisonment in the parish jail, to run concurrently with the sentences imposed in the present case, and consecutively with any other sentence imposed. Respondent's conviction and sentence for this offense were not involved in the present appeal and are not before this Court in this state application.

      . The state had initially charged respondent with a violation of La.R.S. 14:44.1(A)(3), kidnapping in which the victim is physically injured. However, at trial, the prosecutor invited jurors to separate the defendant’s conduct into two different transactions occurring at different times and argued that respondent was "guilty of holding [the victim] against her will at that house and in doing it with a threat of a weapon and death. And he’s guilty of forcing her into the car that day down to the river against her will. That’s false imprisonment with a weapon and it's second degree kidnapping. He did them both.” The state thereby avoided any double jeopardy implications of trying the defendant for both false imprisonment under La.R.S.14:46.1 and second degree kidnapping, which may be committed when the victim is "[flmprisoned or kidnapped” by an offender armed with a dangerous weapon. La.R.S. 14:44.1(A)(5). The court of appeal adopted the same view of the evidence in addressing the sufficiency of the evidence to support convictions on both counts.


source: Caselaw Access Project

author: 11WEIMER, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Tory BOATNER.
    No. 2003-K-0485.
    Supreme Court of Louisiana.
    Dec. 3, 2003.
    Rehearing Denied Jan. 16, 2004.

      Richard P. Ieyoub, Attorney General, Eddie J. Jordan, Jr., District Attorney, Valentin M. Solino, for Applicant.
    Bruce G. Whittaker, for Respondent.

      . LSA-R.S. 15:432 provides:
      A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption attaching to the regularity of judicial proceedings; that the grand jury was legally constituted; that public officers have done their duty; that a relation or subject-matter once established, continues, but not that it pre-existed; that the defendant intended the natural and probable consequence of his act; that the defendant is innocent; that the defendant is sane and responsible for his actions; that the person in the unexplained possession of property recently stolen is the thief; that evidence under the control of a party and not produced by him was not produced because it would not have aided him; that the witnesses have told the truth.

   11WEIMER, Justice.

Tory Boatner was indicted for second degree murder. A jury found him guilty as charged and he was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant appealed. Following a convoluted appellate process the defendant’s conviction and sentence were vacated and the matter remanded for a new trial. This court granted the State’s writ application to consider whether omissions in the trial transcript denied defendant the right to appellate review. State v. Boat-ner, 03-0485 (La.6/6/03), 845 So.2d 1073.

For reasons that follow, we reverse the ruling of the court of appeal and affirm defendant’s conviction and sentence.

FACTS AND PROCEDURAL BACKGROUND

During the early morning hours of February 17, 1999, the defendant, his brother Christopher, and his sister Christine were at a lounge called “Lodie’s”. The victim, Percy Brown, and his sister Jewel were also at the lounge. A fight occurred between | ^Christine Boatner and Keisha Tip-it. Jewel attempted to aid Keisha but was prevented from doing so by someone holding her against the wall. The bar’s bouncers broke up the fight and asked the Boat-ners to leave the premises. Percy and Jewel, followed by Tonette Johnson and Roxanne Robinson, left the lounge a short time later. Once outside, Christine continued to taunt Keisha. She removed the belt she was wearing and hit Keisha in the back with the buckle. Percy argued with his sister urging her to leave, but she did not want to abandon her friend.

Tory, the defendant, and his brother, Christopher, who were standing outside the bar, suddenly disappeared. When they reappeared on the scene, Tory was carrying a gun. Christopher kept asking for the gun but Tory refused to give it to him. According to witnesses, shots were fired and everyone began running. Percy pulled his sister toward the car and told her to run. Tonette and Roxanne heard about five shots, saw Percy fall to the ground and the three Boatners and an unidentified female run from the scene down Lafreniere Street toward Paris Avenue. During the police investigation which followed, Roxanne identified the defendant as the person who fired the fatal shots. Roxanne and Tonette each selected the defendant in a photographic lineup, identifying him as the shooter. Approximately three weeks after the crime, Tory Boatner was arrested. He was indicted by a grand jury for the second degree murder of Percy Brown. A jury convicted him as charged. He was sentenced to life in prison without benefit of parole, probation, or suspension of sentence by the trial court in accordance with law.

Defendant appealed assigning two errors: (1) the jury charges failed to include the definition of the offense of second degree murder and failed to include a definition of the responsive verdict of manslaughter; and (2) the transcript of the trial record was so defective as to deprive defendant of his constitutional right of appeal.

|3On appeal, the court initially vacated defendant’s conviction and sentence for failure of the trial court to provide any guidance to the jury on the elements of the offense charged and the responsive verdicts. State v. Boatner, 01-1659 (La.App. 4 Cir. 6/26/02), 844 So.2d 843. The State filed an application for rehearing and a request to supplement the record with the transcript of the jury charges. That application was granted, following which the court of appeal affirmed the conviction and sentence. State v. Boatner, 01-1659 (La. App. 4 Cir. 8/14/02), 844 So.2d 847.

Defendant then requested a rehearing claiming that omissions in the evidentiary portion of the record denied him the right to appellate review. The court of appeal, in a two to one decision, set aside the defendant’s conviction and sentence and remanded the matter for a new trial holding that defendant was prejudiced by the amount of dialogue that was unable to be transcribed. Based on the reasoning in State v. Bright, 2000-1255 (La.App. 4 Cir. 2/6/02), 809 So.2d 1112, 1117, writ denied, 02-0698 (La.11/1/02), 828 So.2d 563, the court found the cumulative effect of the omissions rendered the record inadequate. State v. Boatner, 01-1659 (La.App. 4 Cir. 1/15/03), 844 So.2d 851.

In dissent, Chief Judge Byrnes reasoned that the defendant was not entitled to relief absent a showing of prejudice based on the missing portions of the transcript. Judge Byrnes observed the issues to be analyzed were the court’s ability to review the record and a demonstration by defendant of the manner in which he was prejudiced. Judge Byrnes noted that omissions do not necessarily constitute reversible error. The defendant must establish that the omitted portions of the transcript caused him prejudice. Boatner, 01-1659 at 1, 844 So.2d at 854 (Byrnes, J., dissenting).

|4FoIlowing that decision, the State filed an application for writ of certiorari which this court granted. State v. Boatner, 03-0485 (La.6/6/03), 845 So.2d 1073.

DISCUSSION

The issue before the court is whether defendant was denied his constitutional right to judicial review of his conviction and sentence because of the numerous “inaudible” notations in the transcribed record.

Both this court and the United States Supreme Court have made clear that a criminal defendant has a right to a complete transcript of the trial proceedings, particularly where appellate counsel was not counsel at trial. State v. Demise, 98-0541, p. 11 (La.4/3/01), 802 So.2d 1224, 1234, cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001), citing Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964) and State v. Robinson, 387 So.2d 1143 (La.1980). The Louisiana State Constitution guarantees that “[n]o person shall be subjected to imprisonment ... without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.” LSA-La. Const, art. I § 19. Additionally, in all felony cases, the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel. LSA-C.Cr.P. art. 843. The court reporter shall record all portions of the proceedings required by law and shall transcribe those portions of the trial proceedings required. LSA-R.S. 13:961(C).

Material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal require reversal. State v. Landry, 97-0499 (La.6/29/99), 751 So.2d 214; Robinson, 387 So.2d at 1144. Although this court has found reversible 1¡¡error when material portions of the trial record were unavailable or incomplete, a “slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal” does not require reversal of a conviction. State v. Brumfield, 96-2667, pp. 14-16 (La.10/28/98), 737 So.2d 660, 669, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999); State v. Parker, 361 So.2d 226, 227 (La.1978). A defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcript. State v. Castleberry, 98-1388, p. 29 (La.4/13/99), 758 So.2d 749, 773, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999); State v. Hawkins 96-0766, p. 8 (La.1/14/97), 688 So.2d 473, 480.

A complete review of the trial transcript reveals instances in which the court reporter could not hear exchanges between the parties. The defense points out there are a significant number of inaudi-bles throughout the record suggesting there are no less than 210 instances in which the testimony was inaudible. Defense counsel points out there are instances in which the question is inaudible as well as the corresponding answer. Defense counsel argues the reader is left to guess what was said during those instances.

The State asserts defendant has faded to show that he suffered prejudice because of those omissions. The State contends that one can accurately determine what has been said by reading the entire transcript. The court reporter distinguishes between speakers and uses the “Q” and “A” format even when there are inaudible questions or answers indicating that no speaker has been left out.

The crucial issue is not the amount or number of omissions but rather whether the omissions are material and caused prejudice to the defendant. The determination | fiof whether the omissions are material must be made on a case by case basis. The critical inquiry is whether the defendant’s right to judicial review guaranteed by La. Const, art. 1, § 19 can be performed or is the record so inadequate that the defendant’s constitutional right to judicial review is prejudiced. Defendant must establish that he was prejudiced by the missing portions of the transcript. Despite the state of the record, defendant has failed to demonstrate any reasonable likelihood that he suffered prejudice resulting from the inadequacy of the record.

The testimony of all witnesses was identified and transcribed. The “Q” and “A” format was used throughout the transcript. The State called two eyewitnesses, the detective who investigated the crime and conducted the photographic lineup, a firearms examiner with the crime lab, a forensic pathologist, and a paramedic who had been called to the scene immediately after the shooting. Defendant testified on his own behalf and called his mother, the two eyewitnesses, and the investigating detective as witnesses during the presentation of his defense.

The appellate majority focused on two portions of the record when concluding that omissions were material and hence that defendant’s conviction must be reversed. First, the majority focused on a portion of testimony attributed to Tonette Johnson regarding identification of State’s Exhibits 10, 11, and 12 as an example of material omissions. In actuality, the testimony referenced by the court was not elicited during the examination of the eyewitness Tonette Johnson, but during the examination of Detective Andre Gilds who conducted the photographic lineups. Additionally, the record confirms that those exhibits (10, 11, and 12) were never introduced into evidence.

The court of appeal also noted there were numerous inaudible portions of the defendant’s testimony as well as the closing argument of the state. The court of 17appeal found that the cumulative effect of the omissions rendered the record inadequate.

Following a thorough review of the record, we disagree. We find the inaudible portions of the transcript do not preclude a complete review. Many inaudible designations occurred when witnesses were repeatedly asked for the same information. As previously indicated, three of the State’s witnesses were recalled during presentation of the defense. Although defendant’s own testimony contained some inaudible responses, there has been no showing that a less than complete transcription of his testimony has prejudiced him in any way. Likewise, the reference to the State’s closing argument is without merit. Closing arguments are not evidence to be considered by the jury. Consistent with the transcript, the minutes of court do not reflect that any objections were made during the closing argument, and thus, any error was not preserved for review.

The minutes of court indicate the jury was chosen on August 2, 1999, and that following the selection of the jury, the trial was recessed at 1:20 p.m. and the jurors ordered to return on August 4, 1999 at 8:15 a.m. with the trial reset for August 4, 1999. The minutes of court indicate the trial began on August 4, 1999, at 8:44 a.m. with the trial judge reading the bill of information. The trial concluded the same day with the jury returning a verdict at 6:25 p.m.

The court minutes also reveal that all but two of the State’s exhibits admitted into evidence were admitted without objection. The two exhibits to which the defense objected, No. 9 and No. 14, were admitted over the objection. One was the photographic lineup shown to Roxanne Robinson and the other was a photograph of the victim’s head. No appeal was taken from the rulings allowing the admission of this evidence.

IsThe State’s case rested almost entirely on the testimony of Tonette Johnson and Roxanne Robinson, the two eyewitnesses. The jury was presented with a relatively straightforward credibility determination which required the jury to choose between conflicting accounts concerning defendant’s actions on the night of the offense. One of the eyewitnesses, Roxanne Robinson, supplied authorities with defendant’s name after the crime indicating that she knew the defendant beforehand. Both eyewitnesses identified the defendant as the shooter in photographic lineups conducted at separate times prior to his arrest. The two eyewitnesses testified at trial and identified defendant as the shooter.

Defendant testified on his own behalf. Although his trial testimony was not perfectly transcribed, the essence of his testimony could be ascertained from the record. He admitted being at Lodie’s bar with his brother and sister on the night in question. He testified that he did not get involved in his sister’s fight but was merely a bystander. He claimed that he wore different clothing than that described by one of the eyewitnesses. As he was leaving the bar, he was delayed by the security guard. When he exited the establishment he saw a crowd gathered at the corner. Just before he got to the corner, he heard a shot. Defendant testified he ran after hearing the shot. Defendant emphatically denied knowing the eyewitnesses, having a gun or shooting the victim. He also testified that he did not know the victim.

The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness. Demise, 98-0541 at 26, 802 So.2d at 1243; State v. Howard, 98-0064, p. 14 (La.4/23/99), 751 So.2d 783, 801, cert. denied, 528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999). A reviewing court may impinge on the “fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, lifi.310 (La.1988). In this case, the jury’s verdict demonstrates that the fact finders accepted the testimony provided by the State’s witnesses and rejected defendant’s claim that he was not the shooter. This court cannot say that the jury’s determination was irrational.

An incomplete record may be adequate for full appellate review. See Hawkins, 96-0766 at 8, 688 So.2d at 480. Additionally, we note there exists a presumption of regularity in judicial proceedings. LSA-R.S. 15:432. The record in this matter is adequate for the court to examine and determine there was sufficient evidence to support a conviction. Defendant has failed to show how he was prejudiced by the missing portions of the testimony replaced by an “inaudible” designation. Unlike other cases reviewed by this court, the record did not lack the complete testimony of one or multiple witnesses or significant steps in the trial procedure.

As to the possibility that the trial court erroneously ruled on the merits of any untranscribed defense objections, given the eyewitness testimony offered by the State, it appears that any such errors would be harmless. The question raised by erroneous admission of evidence is whether the trial court’s error in admitting such evidence was harmless beyond a reasonable doubt. State v. Gibson, 391 So.2d 421, 427-28 (La.1980); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). To be harmless, the improperly admitted evidence must not have contributed to the verdict. State v. Wille, 559 So.2d 1321, 1332 (La.1990); State v. Banks, 439 So.2d 407, 409 (La.1983).

While acknowledging the transcript is not perfect, we do not find any material omissions. Based upon the record, we find defendant has been afforded the right to judicial review guaranteed by the Louisiana Constitution. We also find defendant has failed to demonstrate he suffered prejudice resulting from the perceived inadequacy of the record. Therefore, we reverse the court of appeal decision remanding the matter for a new trial and reinstate the verdict of the jury and the mandatory sentence imposed by the trial court of life without benefit of parole, probation, or suspension of sentence. Defendant’s conviction and sentence are affirmed.

CONCLUSION

The jury heard all of the testimony and witnessed the demeanor of the witnesses as they testified. The jury made a determination based upon the testimony and exhibits introduced into evidence. The record adequately supports that verdict and should not be disturbed.

For the foregoing reasons, we find that defendant has failed to demonstrate any prejudice from the transcript of his trial despite the numerous inaudible responses contained therein. Defendants are guaranteed a right to appeal “based upon a complete record of all evidence upon which the judgment is based.” La. Const, art. I, § 19. Our review of the record indicates the defendant was afforded such a right.

REVERSED; CONVICTION AND SENTENCE AFFIRMED.

      . Mardi Gras was celebrated on February 16, 1999.

      . Chief Judge William H. Byrnes III died on October 21, 2003, after serving on the Fourth Circuit Court of Appeal for nearly 22 years.


author: LPER CURIAM. hWEIMER, J.,

text:
    C.T. TRAINA, INC. v. SUNSHINE PLAZA, INC.
    No. 2003-C-1003.
    Supreme Court of Louisiana.
    Dec. 3, 2003.

      Ernest A. Burguieres, III, for Applicant.
    David J. Maraldo, Metairie, for Respondent.
   LPER CURIAM.

We granted certiorari in this case to consider whether the court of appeal erred in reversing the trial court’s finding that the defendant property owner is liable to a plumbing subcontractor. For the reasons assigned, we conclude the defendant judicially confessed that it entered into an oral contract with the plaintiff, and therefore reverse the judgment of the court of appeal.

FACTS AND PROCEDURAL HISTORY

In June 1996, Sunshine Plaza, Inc. (“Sunshine”) hired Commercial Asset Management Company, Inc. (“CAMCO”) as general contractor to build a shopping center on property owned by Sunshine in Mandeville, Louisiana. Pursuant to the Contractor Agreement between Sunshine and CAMCO dated June 19,1996, CAMCO “shall sub-contract for construction services, advise owner [Sunshine], supervise construction and pay directly for services” on the $1.5 million shopping center project. In July 1996, CAMCO hired Pontchartrain Plumbing, Inc. (“Pontchartrain”) to install the plumbing in the shopping center. Pontchartrain began the work, but it was released from the project before the plumbing was fully completed.

|2In November 1996, C.T. Traina, Inc. (“Traina”) was hired to replace Pontchartrain as the plumbing subcontractor. It is undisputed that Traina did not enter into a written contract with either CAMCO or Sunshine for its work; rather, Traina asserts that it agreed to complete the work begun by Pontchartrain on a customary “time and materials” basis. In February and March 1997, Sunshine paid Traina a total of $20,000 on its account. On May 14, 1997, Traina submitted to Sunshine a final invoice of $23,500 for labor and materials. However, Sunshine refused to pay the invoice. In September 1997, Traina filed suit against Sunshine to collect $23,500, plus legal interest, costs, and attorney’s fees.

On November 10, 1997, Sunshine answered Traina’s petition and filed a peremptory exception of no cause of action, in which Sunshine alleged the following:

The Petition seeks recovery of amounts allegedly owed plaintiff for labor and materials furnished to defendant in connection with the installation of plumbing, allegedly on an open account basis, together with reasonable attorney’s fees incurred in the collection thereof. Notwithstanding the allegations of the Petition, the labor and materials were furnished, not on an open account basis, but pursuant to an oral contract by and between plaintiff and defendant, and, consequently, plaintiff has no cause of action for attorney’s fees incurred in the collection of the amounts allegedly owed, if any, for same, [emphasis added]

| sIn March 1998, Sunshine amended its answer to the petition and filed a peremptory exception of no right of action. In these pleadings, Sunshine argued that it had no contractual relationship with Traí-na. More particularly, Sunshine contended that Traína was a subcontractor of CAMCO and therefore Traína had no right to proceed against Sunshine for amounts owed on the shopping center project. However, Sunshine continued to assert in the alternative that an oral contract existed:

In the event the Court should determine that a contract existed by and between plaintiff and defendant and overrule the above and foregoing exception of no right of action, and in the alternative thereto, defendant avers that the labor and materials furnished by plaintiff to defendant were furnished, not on an open account basis, but pursuant to an oral contract by and between plaintiff and defendant, and, consequently, plaintiff is not entitled to attorney’s fees incurred in the collection of the amounts allegedly owed, if any, for the same.

The trial court denied Sunshine’s exceptions, and the case proceeded to a trial on the merits. At trial, Traína presented the testimony of Samuel Markovich, the owner of Sunshine; Charles Majors, a licensed master plumber formerly employed by Traína; and Gary Traína, the vice-president of Traína. Mr. Markovich testified that Sunshine had no direct contractual relationship with Traína. According to Mr. Markovich, he had no say in hiring Traína after Pontchartrain was removed from the shopping center project, pointing out that it was CAMCO’s obligation to hire the subcontractors on the project. Nevertheless, Mr. Markovich admitted that he went to the construction site once a week and that he knew Traina’s employees were working there. Mr. Markovich also acknowledged that he paid most of the subcontractors and suppliers directly (including Traína) by checks drawn on Sunshine’s account, to assure “no money would be lost in between me and the subcontractors.” Mr. Traína testified about the relationship his company had with Sunshine. Mr. Traí-na admitted that he was initially | ¿approached by Robert Hughes of CAM-CO about bidding on the Sunshine project. He also acknowledged that Mr. Markovich had not contacted him directly prior to Traina’s beginning work on the shopping center project. However, Mr. Traína testified that he always thought he was working for Mr. Markovich because “he was the one paying the bills.”

At the conclusion of Traina’s case, the trial court observed that Mr. Markovich essentially functioned as his own general contractor and that CAMCO acted as general contractor “in name only.” While agreeing that no open account relationship existed between Sunshine and Traína, the trial court ultimately concluded that Sunshine was liable to Traína. Accordingly, the trial court rendered judgment in favor of Traína in the amount of $43,500, less a credit for the $20,000 Sunshine had already paid, plus legal interest and costs.

Sunshine appealed the trial court’s judgment. In an opinion not designated for publication, the court of appeal reversed the trial court’s judgment, finding the trial court was manifestly erroneous in determining an oral contract existed between Traína and Sunshine.

Upon Traina’s application, we granted certiorari to review the correctness of that ruling. C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003 (La.6/20/03), 847 So.2d 1246.

DISCUSSION

In their briefs and arguments before this court, the parties spent much time discussing whether Traína proved the existence of an oral contract between it and Sunshine. However, we need not reach this thorny question if we determine Sunshine |Bmade a judicial confession that an oral contract between the parties existed. Accordingly, we now turn to a discussion of the requirements for a judicial confession.

The definition of judicial confession is contained in Article 1853 of the Civil Code, which provides:

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. A judicial confession is indivisible and it may be revoked only on the ground of error of fact.

The well settled jurisprudence establishes that an admission by a party in a pleading constitutes a judicial confession and is full proof against the party making it. Taboni ex rel. Taboni v. Estate of Longo, 01-2107 (La.2/22/02), 810 So.2d 1142; Starns v. Emmons, 538 So.2d 275 (La.1989); Smith v. Board of Trustees, 398 So.2d 1045 (La.1981); Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979). A judicial confession has the effect of waiving evidence as to the subject of the admission. Crawford v. Deshotels, 359 So.2d 118 (La.1978); Jackson v. Gulf Ins. Co., 250 La. 819, 199 So.2d 886 (1967); Farley v. Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122 (1913). A declaration made by a party’s attorney or mandatary has the same effect as one made by the party himself. La. Civ.Code art. 1853, cmt. (b).

In the instant case, the exception of no cause of action filed by Sunshine’s attorney on its behalf clearly stated that “the labor and materials were furnished, not on an open account basis, but pursuant to an oral contract by and between plaintiff and defendant .... ” [emphasis added] Approximately four months later, Sunshine filed a peremptory exception of no right of action and amended answer in which it denied the existence of a contractual relationship, but continued to allege, in the alternative, that if the court denied its exception, the court should find an oral ^contract existed. We conclude these allegations amount to a judicial confession of the existence of an oral contract between Sunshine and Traína.

The court of appeal recognized that Sunshine judicially confessed that it had an oral contract with Traína, but reasoned that Sunshine revoked its admission when it filed a subsequent pleading denying any contractual relationship existed. We disagree. La. Civ.Code art. 1853 explicitly provides that a judicial confession may be revoked only on the ground of error of fact. At no time did Sunshine assert its judicial confession of an oral contract was made in error. To the contrary, Sunshine’s amended answer confirmed Sunshine’s earlier allegation of an oral contract by continuing to allege, in the alternative, that an oral contract existed. Therefore, we must conclude based on the record before us that Sunshine’s judicial confession of an oral contract was never revoked on the ground of error of fact.

Because a judicial confession has the effect of waiving evidence relating to the subject of the admission and withdrawing the subject matter of the confession from issue, Traína was not required to offer at trial affirmative proof of its oral contract with Sunshine. Therefore, the only issue before the trial court was whether Traína was entitled to recover under the oral contract. The trial court found Traína performed work that benefitted Sunshine, the amount Traína charged was reasonable, and that Sunshine should pay the balance due. These findings are not manifestly erroneous based on the record before us. Accordingly, we must reinstate the trial court’s judgment in favor of Traína.

IvDECREE

For the reasons assigned, the judgment of the court of appeal is reversed, and the judgment of the trial court in favor of C.T. Traína, Inc. is hereby reinstated. All costs in this court are assessed against Sunshine Plaza, Inc.

WEIMER, J., concurs & assigns reasons.

hWEIMER, J.,

concurring.

I concur in the result, but would not resolve this matter on the basis of a judicial confession because other pleadings contradicted the admission of the existence of an oral contract upon which the majority relies.

In November 1997, Sunshine Plaza, Inc. (Sunshine) answered the petition of C.T. Traína, Inc. (Traína) and made the judicial confession or “admission” of an oral contract between Sunshine and Traína. However, less than six months later, Sunshine amended its answer and filed an exception of no right of action grounded on the lack of any contract between Sunshine and Traína. In the alternative, Sunshine pled the material and labor were not furnished on open account. Trial on the merits was not held until August 27, 2001. There was no showing at trial that Sunshine’s adversary relied on the original answer in which Sunshine alleged there was an oral contract. Thus, Sunshine’s amended answer pleading alternative theories of no oral contract or if an oral contract, no open account, were not relied upon by Traína.

A litigant is not barred from contradicting a judicial confession in the absence of a showing that his adversary was misled or deceived by reason of his averment. J.H. Jenkins Contractors, Inc. v. Farriel, 261 La. 374, 395, 259 So.2d 882, 890 (1972). Appellate courts have long followed the rule, which the majority in the instant | pease ignores, that judicial admissions in the same suit do not bar curative amendments. Guidry v. Barras, 368 So.2d 1129, 1132 (La.App. 3 Cir.1979), cited in Scoggins v. Frederick, 98-1814, p. 6 (La.App. 1 Cir. 9/24/99), 744 So.2d 676, 682, writ denied, 99-3557 (La.3/17/00), 756 So.2d 1141; and Hibernia National Bank v. Carner, 997 F.2d 94, 101 (5th Cir.1993).

Although Sunshine’s owner, Samuel Markovich, testified that Sunshine had no direct contractual relationship with plaintiff, Markovich admitted he went to the site once a week. He knew Traina’s employees were working there. Markovich also acknowledged that he directly paid most of the sub-contractors and suppliers, including Traína, by checks drawn on Sunshine’s account. Gary Traína of C.T. Traí-na, Inc. testified that he always thought he was working for Markovich of Sunshine because “he was the one paying the bills.”

While agreeing that no open account relationship existed between Sunshine and Traína, the trial court ultimately concluded that Sunshine is liable to Traína, apparently premising its finding upon the existence of an oral contract between Traína and Sunshine. At the conclusion of Traina’s case, the trial court observed that Marko-vich essentially functioned as his own general contractor and that CAMCO acted as general contractor “in name only.”

Based on the factual findings of the trial court coupled with the pleadings by Sunshine which include admission that “the labor and materials were furnished, not on an open account basis, but pursuant to an oral contract by and between plaintiff and defendant,” I would find the trial court was not manifestly erroneous in determining an oral contract was confected.

      .Sunshine made three separate payments to Traina. The checks were drawn on the account of Sunshine Plaza, Inc. and payable to C.T. Traina, Inc., dated February 28, 1997 (in the amount of $10,000); March 7, 1997 ($5,000); and March 18, 1997 ($5,000). All three checks were signed by Samuel Marko-vich, the owner of Sunshine. Traina received no payments from CAMCO with respect to the shopping center project.

      . Traina billed Sunshine a total of $43,500 for labor and materials, less the $20,000 previously paid by Sunshine.

      . In July 1998, Traina filed a supplemental and amending petition adding CAMCO as a defendant. CAMCO answered the amended petition in January 1999 and denied that it had any contractual relationship with Traína. Rather, CAMCO asserted that Traina’s work "was performed pursuant to petitioner’s contractual relationship with and for the exclusive benefit of” Sunshine. At some point after the answer was filed, CAMCO declared bankruptcy.

      . Traína did not appeal the trial court’s determination that no open account relationship existed between Traína and Sunshine. Accordingly, the open account issue is not before us.

      . Presumably, Sunshine sought to have the court find Traína’s services were rendered pursuant to an oral contract, rather than on an open account basis, because attorney's fees are available under the open account statute. However, Sunshine’s motivation for making the admission is of no moment.

      . A party's judicial "admission is to be given the probative value it deserves as an admission of the party who made it.” Alexis v. Metropolitan Life Insurance Company, 604 So.2d 581, (La.9/4/92).


author: hPER CURIAM. |,WEIMER, Justice, |,VICTORY, J.,

text:
    In re Derek John HONORE.
    No. 2003-B-0980.
    Supreme Court of Louisiana.
    Dec. 3, 2003.

      Charles B. Plattsmier, Baton Rouge, for Applicant.
    Derek J. Honoré, pro se.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

hPER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Derek John Honoré, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Addison Matter

In 1996, after graduating from law school but prior to his admission to the Louisiana bar, respondent was employed as a paralegal/law clerk at the Law Offices of Jason Rochon and Associates (“Rochon firm”). During this time, Gaynell Arm-wood Addison retained the Rochon firm to represent her in connection with a personal injury matter. Ms. Addison’s matter was handled by respondent. Ms. Addison assumed respondent was a licensed attorney, and he made no efforts to advise her otherwise. During the course of the representation, Ms. Addison attempted to contact respondent regarding the status of her case, but was unsuccessful. Respondent failed to file suit on behalf of Ms. Addison and her case prescribed.

In October 1998, respondent was admitted to the bar. Days later, respondent forwarded a check in the sum of $1,600 to Ms. Addison. He did not provide her with an explanation for the payment and she remained unaware that her case had prescribed.

12Subsequently, Ms. Addison filed a disciplinary complaint with the ODC. When respondent failed to comply with the ODC’s request for information regarding the complaint, the ODC issued a subpoena to compel his cooperation. In his statement, respondent suggested that it was his intent to pay some money to Ms. Addison “for the damage he had done,” but without disclosing to her that her suit had prescribed and that she had the right to seek independent counsel to advise her concerning any potential malpractice claim.

Malbrough Matter

After his admission to the practice of law, respondent continued to work at the Rochon firm. Mr. Rochon was counsel of record for Mary Malbrough, who had a personal injury matter pending in the 15th Judicial District Court for the Parish Lafayette. By 1999, Mr. Rochon had largely abandoned his practice. As a result, respondent made an appearance at a pretrial conference on behalf of Ms. Malb-rough. However, respondent did not file the appropriate motions into the court record as ordered, nor did he advise Ms. Malbrough of his failure to do so.

On the day trial was scheduled in Ms. Malbrough’s case, neither respondent nor anyone else from the Rochon firm appeared on her behalf. When contacted by the court, respondent, who was in New Orleans, requested a continuance. The trial judge denied the continuance and ordered respondent to be in court in Lafayette in two and one-half hours to commence trial. Respondent failed to appear as ordered, and did not communicate with the court. As a result of respondent’s failure to appear, the trial [¿judge dismissed Ms. Malbrough’s case with prejudice. Respondent failed to notify Ms. Malbrough of the dismissal.

Subsequently, the trial judge filed a complaint with the ODC. Respondent failed to comply with the ODC’s requests for information concerning the matter.

Anderson Matter

Mae Thelma Anderson retained the Ro-chon firm to represent her in a personal injury matter pending in the 15th Judicial District Court for the Parish of Lafayette. Mr. Rochon was listed as Ms. Anderson’s counsel of record in the case.

Prior to a hearing on a motion for summary judgment in the case, respondent agreed to enroll as counsel and take over Ms. Anderson’s representation. However, respondent failed to do so. As a result, Ms. Anderson’s suit was dismissed.

Martin Matter

Charlene Martin retained respondent to represent her in connection with a personal injury matter. Respondent instituted suit on behalf of his client, but failed to take any further action in the case and failed to communicate with Ms. Martin. Additionally, respondent neglected to comply with opposing counsel’s discovery requests. As a result, the court granted opposing counsel’s motion to compel and ordered respondent to completely answer the discovery requests within fifteen days. Respondent failed to comply with the court’s order. Based on this failure, the trial court dismissed Ms. Martin’s suit with prejudice. Respondent did not disclose this dismissal to Ms. Martin.

|4Ultimately, Ms. Martin discharged respondent, retained other counsel and requested the return of her file. Respondent neglected to timely return Ms. Martin’s case file, despite repeated requests by her.

DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed formal charges against respondent based on the Addison, Malbrough and Anderson matters. The charges allege violations of Rules 1.3 (failure to act with diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.7 (conflict of interest), 1.8 (prohibited transactions between a lawyer and client), 5.5 (engaging in the unauthorized practice of law), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violating the Rules of Professional Conduct), 8.4(d) (engaging in conduct prejudicial to the administration of justice) and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

After additional investigation, the ODC amended the formal charges and added the charge arising from the Martin matter. This charge asserts violations of Rules 1.3 (failure to act with diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.7 (conflict of interest), 1.8 (prohibited transactions between a lawyer and client), 5.5 (engaging in the unauthorized practice of law), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violating the Rules of Professional Conduct), 8.4(d) (engaging in conduct prejudicial to the administration ¡fiof justice) and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

Respondent filed an answer admitting to the allegations of misconduct subject of the formal charges. Accordingly, the formal hearing was limited to the issue of mitigation.

Recommendation of the Hearing Committee

Relying on respondent’s admissions, the hearing committee determined the ODC proved by clear and convincing evidence the allegations of professional misconduct. The hearing committee recognized that respondent’s actions were negligent in some cases, but were willful and intentional in others. It noted that he caused actual or potential injury to his clients insofar as he permitted their eases to prescribe or be dismissed.

As aggravating factors, the committee cited the pattern of misconduct and multiple offenses. In mitigation, the committee recognized prior disciplinary record, timely good faith effort to make restitution and to rectify the consequences of his misconduct, inexperience in the practice of law, good character and reputation, interim rehabilitation and remorse.

In determining an appropriate sanction, the committee observed respondent’s disciplinary problems all arose out of his employment with Mr. Rochon and respondent’s inability to handle the rigors of a civil law practice. It noted respondent has since taken a job with the Orleans Parish Indigent Defender Board, and the evidence developed at the hearing indicated he has done a good job in a structured environment. The committee suggested respondent could probably avoid future | ^disciplinary pitfalls if he refrained from handling civil cases without the assistance of competent lead counsel.

Considering these factors, the committee recommended that respondent be suspended for a period of two years, with all but six months deferred, subject to a two-year period of probation with conditions involving, among other things, practice monitoring, limitation of civil practice and restitution.

Recommendation of the Disciplinary Board

The disciplinary board adopted the hearing committee’s factual findings and application of the professional rules. It found respondent violated duties owed to his clients, to the legal system and as a professional. It determined his inactions were “generally knowing,” causing injury to his clients and resulting in the dismissal of their cases. The board concluded his failure to communicate with his clients, failure to return his clients’ files upon request and his misleading clients into believing that their claims were still pending delayed resolution of their legal matters. The board further concluded respondent’s failure to comply with the ODC’s requests for information caused unnecessary delays and the imposition of additional burdens.

The board accepted the aggravating and mitigating factors cited by the committee. However, the board deviated from the sanction recommended by the hearing committee, and instead proposed respondent be given a fully deferred two-year suspension, subject to a two-year period of probation with conditions.

Although neither respondent nor the ODC filed an objection in this court to the recommendation of the disciplinary board, we docketed the matter for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G)(1)(a).

JjDISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See, In re: Catdfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Based on respondent’s admission to the misconduct, we find the allegations set forth in the formal charges are proven by clear and convincing evidence. Accordingly, we now turn to a discussion of the appropriate sanction for respondent’s misconduct.

In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

In essence, respondent’s misconduct consists of neglect of client matters. His actions caused actual harm to his clients, some of whom had their suits dismissed as a result of respondent’s actions. Respondent’s omissions strike at the very heart of Rthe attorney’s professional responsibility to ensure the rights of his or her clients are protected. The baseline sanction for this misconduct is a suspension from the practice of law.

However, our view of respondent’s actions is ameliorated in some degree by the evidence in the record which indicates that shortly after respondent was admitted to practice, his employer, Mr. Rochon, virtually abandoned the law firm, leaving respondent to deal with the firm’s clients with little or no guidance from an experienced attorney. While this finding in no way excuses respondent’s failure to properly discharge his responsibilities in those client matters entrusted to him, it serves to mitigate the harshness of the sanction.

In short, we believe this is a case in which respondent’s misconduct was the product of inexperience rather than any improper motive. We are impressed that respondent demonstrated sincere remorse for his actions and has indicated he will not repeat these mistakes in the future. Under these circumstances, we feel the appropriate discipline is a deferred suspension coupled with a highly-structured probationary period, which will give respondent an opportunity to correct his past deficiencies while protecting the public from the possibility of any future harm.

Under these circumstances, we will suspend respondent from the practice of law for a period of two years, but defer that suspension in its entirety and place respondent on probation for a period of two years, subject to the following conditions:

1. During the period of probation, respondent shall not undertake the representation of any clients in civil cases of any kind;
2. Respondent shall request that the ODC appoint a practice monitor to supervise his professional activities and respondent shall comply with all reasonable requests of his monitor;
|fl3. Should respondent discontinue his employment with the Orleans Parish Indigent Defender Program, he shall notify the ODC within five days;
4. In addition to his ordinary mandatory continuing legal education requirements, respondent shall earn an additional ten hours of continuing legal education for each year during his probationary period, in the areas of law office management, ethics or professionalism; and
5. Six months prior to the conclusion of the probationary period, the ODC shall file a report with this court advising whether it believes the probationary period should be allowed to terminate or whether probation should be continued for an additional period of time.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Derek John Honoré, Louisiana Bar Roll number 25711, be suspended from the practice of law for a period of two years. It is further ordered that this suspension shall be deferred in its entirety and respondent shall be placed on supervised probation for a period of two years, subject to the conditions identified in this opinion. Any violation of the conditions of probation or other misconduct during the probationary period may be grounds for making the deferred suspension executory or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

WEIMER and VICTORY, JJ., dissent and assign reasons.

TRAYLOR, J., dissents for reasons assigned by WEIMER, J.

|,WEIMER, Justice,

dissenting.

Respondent admits that he neglected his clients’ legal matters allowing them to prescribe or be dismissed, failed to communicate with his clients, engaged in conduct constituting a prohibited conflict of interest when he tried to settle his own malpractice, engaged in the unauthorized practice of law prior to his admission to the bar, and failed to cooperate with the ODC in its investigation of complaints regarding his conduct. These are serious acts of misconduct. While some may be attributed to inexperience, lack of organizational skills and lack of supervision, the record reflects that, overall, these significant acts of misconduct stem from respondent’s apparent indifference to the demands of a challenging civil practice and procrastination. Given the seriousness of the misconduct not only proved but admitted, I disagree with the majority’s decision to order a fully-deferred suspension and believe that some actual period of suspension should be imposed.

Admittedly, respondent had limited experience in the practice of law at the time of the misconduct, but not all of his misconduct can be attributed to the simple expedient of inexperience. In oral argument, respondent presents himself as an intelligent individual, nevertheless, he engaged in the unauthorized practice of law prior to his admission to the bar and, while doing so, allowed his client’s case to prescribe. Rather than acknowledge his error, he forwarded “restitution” to the client in the form of a check without any explanation for the payment or any acknowledgment that the |¡>case had prescribed. Such actions are inconsistent with common sense, common courtesy, and a basic sense of ethics and can hardly be excused by lack of experience. In addition, respondent’s conduct in failing to appear in court prompted not one, but two, complaints to the ODC from district judges. In one of those instances, respondent ignored a direct order from the judge to appear in court, resulting in the dismissal of his client’s case with prejudice.

Respondent’s conduct was not merely negligent, but in some instances, knowing, and resulted in injury to his clients whose cases were lost or jeopardized. Such conduct cannot be easily excused. Nevertheless, respondent is to be applauded for his work for the Indigent Defender Program, which, by all accounts, has been diligent and exemplary. His commitment to an area of practice that is in need of good, competent attorneys is to be commended. His work in this arena, which demonstrates rehabilitation, serves to mitigate in favor of a less severe sanction than would otherwise be imposed. However, respondent’s success in the structured environment of the Indigent Defender Program does not change nor should this court ignore the serious ethical violations that have been established.

Recognizing that the purpose of disciplinary procedures is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional ^conduct, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the standards of the profession, In re: Vaughan, 00-1892 (La.10/27/00), 772 So.2d 87, I believe that the goals of deterrence and preservation of the integrity of the legal profession can only be served if some period of actual suspension is imposed in this case. Respondent, as well as other members of the bar, must understand that the misconduct in which respondent engaged is serious and that such inappropriate behavior will not be countenanced by this court.

Therefore, for the reasons expressed herein, I respectfully dissent from the majority’s decision to impose a fully-deferred suspension and would adopt a recommendation similar to the hearing committee that respondent be suspended for a period of two years, with all but two months deferred, subject to a two year period of probation with appropriate conditions. I agree with the majority’s approach that the respondent should not represent any clients in civil cases for a period of two years, as well as with the other probationary conditions.

|,VICTORY, J.,

dissenting.

I agree with the dissent of Justice Weimer, but would impose a longer period of actual suspension.

      . During this time, the ODC commenced a disciplinary investigation into widespread professional misconduct by Mr. Rochon, including, among other things, commingling and conversion of client and third-party funds, failing to return unearned fees, engaging in conduct that was disruptive to a tribunal and prejudicial to the administration of justice and physically attacking another attorney in front of a number of witnesses, including clients. We placed Mr. Rochon on interim suspension in September 1999. In re: Rochon, 99-2654 (La.9/22/99), 744 So.2d 1272. Thereafter, we disbarred him as a result of this misconduct. In re: Rochon, 00-3356, (La. 1/12/01), 776 So.2d 432.

      . In response to the first three charges, respondent submitted a petition for consent discipline. That petition was rejected by this court and the case was remanded for further proceedings. In re: Honore, 01-1607 (La.6/29/01), 791 So.2d 79. On remand, the ODC amended the charges to add the charge arising from the Martin matter.

      . As the majority notes:
      The hearing committee recognized .that respondent's actions were negligent in some cases, but were willful and intentional in others. It noted that he caused actual or potential injury to his clients insofar as he permitted their cases to prescribe or be dismissed.
      As aggravating factors, the committee cited the pattern of misconduct and multiple offenses.

      [The disciplinary board] determined his inactions were "generally knowing," causing injury to his clients and resulting in the dismissal of their cases. The board concluded his failure to communicate with his clients, failure to return his clients' files upon request and his misleading clients into believing that their claims were still pending delayed resolution of their legal matters. The board further concluded respondent’s failure to comply with the ODC’s requests for information caused unnecessary delays and the imposition of additional burdens.

      . The hearing committee recommended a six-month period of actual suspension.