author: | .WHIPPLE, J. | ^OWNING, J.,

text:
    In re: J.A.B. Applying for Intrafamily Adoption of V.S.M.B.
    No. 2004 CJ 1160.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.
    Rehearing Denied Nov. 9, 2004.

      J.A.B., River Ridge, Counsel for Plaintiff/Appellee, J.A.B.
    Rita K. Akehurst, II, Gretna, Counsel for DefendanVAppellant, L.A.B.
    Before: WHIPPLE, FITZSIMMONS, and DOWNING, JJ.
   | .WHIPPLE, J.

On appeal, the biological father, L.A.B., challenges a judgment of the district court granting a petition for intrafamily adoption of the minor child, V.S.M.B., filed by the minor child’s stepfather, J.A.B. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

E.B. and L.A.B. were married on August 3, 1996. One child, V.S.M.B., was born of the marriage on September 30, 1999. Due to continuing marital problems, the parties separated in November of 1999 after an incident of domestic violence perpetrated by L.A.B. By virtue of a “Consent Judgment of Divorce,” the parties were eventually granted a divorce by the Twenty-First Judicial District Court in Tangipahoa Parish on September 20, 2000.

In the September 20, 2000 consent judgment, the parties agreed to share joint custody of V.S.M.B.; that E.B. be designated as the domiciliary parent “subject to limited visitation in favor of [L.A.B.] to the extent of alternating Saturdays, with visitation limited to that time and under those certain precautions as shall be established and determined by [E.B.] ”; and that L.A.B. pay child support in the amount of $500.00 per month retroactive to the filing of the petition for divorce on January 11, 2000.

On April 11, 2001, the parties entered another consent agreement, reduced to judgment in the Tangipahoa Parish proceedings, whereby the parties stipulated to the issuance of reciprocal restraining orders prohibiting the parties from contacting each other in any way for any purpose other than the limited purpose of arranging child visitation or for emergencies involving the minor child. The judgment further provided that retroactive to March 19, 2001, and for a two-year period from that date, L.A.B. waived any right to visitation or contact with V.S.M.B. Given L.A.B.’s agreement not to communicate or make contact with the minor child, E.B. agreed to waive any child support due by L.A.B. during that two-year period. The judgment | salso contained a “reservation of rights” in favor of both parties, maintaining their joint legal custody of V.S.M.B. as granted by the original consent judgment.

E.B. subsequently married J.A.B. on May 25, 2002 in St. Tammany Parish, where they reside. On February 7, 2003, J.A.B. filed a petition for intrafamily adoption of his step-child, V.S.M.B., in the Twenty-Second Judicial District Court in St. Tammany Parish, the proceedings giving rise to this appeal.

In the petition, J.A.B. alleged that L.A.B. had failed to “visit, communicate or attempt to communicate with the child, without just cause, since on or about March 18, 2001, a period of more than 6 months.” Thus, he alleged, pursuant to LSA-Ch. C. art. 1245, the parental consent of L.A.B. was not necessary. L.A.B. filed a petition in opposition to the intra-family adoption alleging that his lack of visitation with the minor child was of no consequence, given the terms of the April 11, 2001 consent judgment filed in Tangi-pahoa Parish. He also contended that at the conclusion of the prescribed two-year period, he “made every effort” to visit with the child.

Trial of the matter was held on September 8, 2003, after which the St. Tammany district court rejected his arguments and rendered “Reasons for Judgment” on November 26, 2003, granting the petition for intrafamily adoption filed by J.A.B. A written judgment in conformity with the court’s reason was signed on December 16, 2003.

L.A.B. now appeals, claiming that the petition for intrafamily adoption “should not have been granted as it prejudiced the paternal and legal rights of the natural father.” The res nova issue presented herein is whether or not a consent judgment rendered by a district court, wherein a parent obtains a waiver of his child ^support obligation in exchange for his agreement not to visit or communicate with the minor child for two years while preserving the joint custody rights (under the prior consent judgment) may serve as “just cause” excusing the father’s failure to “visit, communicate or attempt to communicate with the child, ... [for] a period of more than 6 months,” thereby deeming his consent to intrafamily adoption necessary.

DISCUSSION

Generally, a parent’s consent is required for an intrafamily adoption. LSA-Ch.C. art. 1193. However, pursuant to LSA-Ch.C. art. 1245, consent of a parent is not necessary if the petitioner proves that the parent has forfeited his right to consent, as follows:

A. The consent of the parent as required by Article 1193 may be dispensed with upon proof of the required elements of either Paragraph B, C, or D of this Article.
B. When a petitioner authorized by Article 1243 has been granted custody of the child by a court of competent jurisdiction and any one of the following-condition exists:
(1) The parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.
C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists:
(1) The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

(Emphasis added.)

|ñThe party petitioning the court for adoption carries the burden of proving a parent’s consent is not required under the law. In re Fleming, 2001-1405 (La. App. 5th Cir.4/30/02), 817 So.2d 371, 376. To constitute “just cause,” a parent’s failr ure to support, visit, or communicate with his children must be due to factors beyond his control. In re RMK, 499 So.2d 190, 192 (La.App. 2nd Cir.10/29/86).

J.A.B. contends that pursuant to LSA-Ch.C. art. 1245(C)(2), L.A.B.’s consent was not necessary because he had refused or failed to visit, communicate, or attempt to communicate with Y.S.M.B., without just cause, since on or about March 18, 2001, a period of more than six months. L.A.B. does not dispute that fact that he failed to visit, communicate, or attempt to communicate with V.S.M.B., for a period of more than six months. However, he claims that his failure to do so was justified, given the April 11, 2001 consent judgment entered into in the Tangipahoa Parish proceedings, which, he claims in brief, also reserved his “paternal and legal rights.”

While we agree that the reservation of rights provision maintained the joint custody status of V.S.M.B., and preserved the parties’ custody arrangement under the prior judgment, L.A.B.’s reservation of his rights to joint custody is not dispositive of the issue of whether his failure to visit, communicate, or attempt to communicate with the child, was legally justified and thus served to preserve the need for his consent to the proposed intrafamily adoption by J.A.B. pursuant to LSA-Ch.C. art. 1245(C)(2).

|fiOn review, we specifically reject L.A.B.’s argument that a reservation of his legal rights to joint custody of a child whom he voluntarily agreed not to visit in exchange for a waiver of his monthly child support obligation for a period over two years can serve as “just cause” excusing his failure to visit, communicate, or attempt to communicate with the child for what was, in essence, the majority of the child’s life. We farther reject his claim that his compliance with the consent judgment, which he argues is tantamount to a contract, served as “just cause” pursuant to LSA-Ch.C. art. 1245(C)(2).

Pretermitting a determination of the legality or validity of the consent judgment entered into by the parties herein (where payment of L.A.B.’s child |7support obligation was made contingent upon his agreement to-' waive visitation with V.S.M.B.), we find that L.A.B. voluntarily relinquished his right to see and communicate with Ms child in return for a financial benefit, i.e., relief from his obligation to provide financial support for his child. A parent’s financial benefit cannot constitute “just cause” for failing to visit or communicate with his child.

In sum, we hold that a parent cannot put his parental rights, duties, privileges, and obligations on hold voluntarily and without just cause for a period of two years and then expect to automatically resume those rights and privileges after such a significant period of time in the life of a child has elapsed. As our colleagues noted in State in the Interest of M.P. and B.P., 538 So.2d 1112, 1115 (La.App. 5th Cir. 1989), “while adults can take ... years to... improve their level of functioning ... children are not granted the same amount of time to go through developmental stages and a[sic] that a number of years in a child’s life can be disrupted significantly, while parents are getting themselves together.” We find these principles equally applicable in the instant case. In doing so, we note that child support and visitation issues are subject to modification, considering the circumstances and the best interest of the child.

Here, both E.B. and L.A.B. testified that L.A.B. voluntarily entered into the April 11, 2001 consent judgment and agreed that he would waive visitation with V.S.M.B. in lieu of having to pay the $500.00 monthly child support obligation he had been condemned to pay. Notably, L.A.B. was represented by legal counsel at the time the agreement was confected, and obviously was aware that this “consent judgment” was subject to modification, if he so desired, given the reservation of joint legal custody. Nonetheless, he willingly relinquished his visitation rights strictly for Impersonal economic benefit and gain. While L.A.B. argues in brief that he entered the consent agreement to give E.B. “some time,” the record shows that at the time he entered the consent agreement waiving his child support obligation, he owed in excess of $2,000.00 in arrears. His continuous failure to visit or communicate with the child was voluntarily on his part, and due to personal factors within his control. See In re RMK, 499 So.2d 190 (La.App. 2nd Cir.10/29/86).

Accordingly, we find no error in the district court’s factual finding that L.A.B. failed to visit or communicate with V.S.M.B. for a period exceeding six months, or in its conclusion that such failure to do so was without just cause. Thus, the trial court correctly ruled that L.A.B.’s consent to the adoption was not necessary.

However, even where the other parent’s consent is obviated by failure to visit, the court must also consider what is in the best interest of the child in deter-mirnng whether the adoption should proceed. In re Miller, 95-1051, 95-1052 (La. App. 1st Cir.12/15/95), 665 So.2d 774, 777, writ denied, 96-0166 (La.2/9/96), 667 So.2d 541. In fact, the primary consideration in adoption proceedings is whether the adoption is in the best interest of the child. In re Miller, 95-1051, 95-1052, 665 So.2d at 111.

Louisiana Children’s Code article 1255 provides:

A. The court, after hearing and after taking into consideration information from all sources concerning the intra-family adoption, may enter a final decree of adoption, or it may deny the adoption. The basic consideration shall be the best interests of the child.
B. When a court has granted custody to either the child’s grandparents or his parent married to the stepparent petitioner, there shall be a rebuttable presumption that this adoption is in the best interests of the child.

The courts have recognized that factors must be considered when determining the best interest of the child. The most important factors are the child’s relationships Igwith her stepfather and her natural father. It is not enough to examine the love and home environment provided by the petitioner/stepparent. The court must also examine the depth of closeness of the child’s ties with the non-custodial natural parent, and the effect which the loss of this relationship would have on the child. Further, the court must consider the seriousness and finality of the severing of the relationship between the parent and child, as well as the importance and benefit to the child of a continued relationship with the parent. Knapp v. Adoption of Cotten, 577 So.2d 241, 246 (La.App. 1st Cir.), writ denied, 580 So.2d 364 (La.1991).

The record shows that in March of 1999, L.A.B. began exhibiting very strange behavior and became very violent and physically abusive towards E.B. L.A.B. began staying up all night and dressing in all white because he said that was what Jesus wore. E.B. further testified in detail regarding several incidents of violence that were perpetrated upon her by L.A.B. L.A.B.’s irrational behavior eventually escalated to the point where his bizarre and violent conduct required his committal to a psychiatric hospital. On March 25, 1999, L.A.B. was committed to Methodist Psychiatric Pavilion in New Orleans.

Dr. M. Kaleem Arshad, a board certified psychiatrist, treated L.A.B. during his stay at the Psychiatric Pavilion. Dr. Arshad gathered L.A.B.’s medical and behavioral history from his family, which revealed increasingly bizarre and inappropriate behavior. He stated that L.A.B.’s family became extremely concerned for their safety as well as for his safety, which prompted them to obtain an order of protective custody and admit L.A.B. to the psychiatric hospital for treatment. At the time of L.A.B.’s admittance, Dr. Arshad gave him a diagnosis of a psychosis “NOS,” which stands for “not otherwise specified.” He explained that L.A.B. demonstrated a cluster of symptoms that did not meet the specific criteria for any other diagnosis. Dr. Arshad decided to admit L.A.B. and put him on medication to treat some of his psychiatric symptoms. He was eventually able to diagnose L.A.B. as suffering from | ina schizoid effective disorder, noting his delusional ideas and ideas of grandiosity, and a diagnosis of bipolar disorder. Dr. Arshad felt like the hospitalization in March was brought on in part or contributed to by stress. L.A.B. was discharged from Methodist Psychiatric Pavilion on April 1, 1999. Because stress can always precipitate or be a contributing factor to any future psychotic episode, Dr. Arshad recommended that upon release, L.A.B. follow-up with counseling to help him deal with stress. L.A.B. attended only five follow-up visits with Dr. Arshad after his release. During those visits, his diagnosis remained the same. Dr. Arshad became concerned when L.A.B. informed him that he was not taking the medication as prescribed, which posed an increased risk that similar episodes would occur. On July 22, 2003, L.A.B. last visited Dr. Ar-shad to obtain his medical records and treatment records from the hospital.

The record shows that later that year, on November 19, 1999, there was an incident at L.A.B. and E.B.’s home wherein L.A.B. became involved in an argument with his sister. E.B., V.S.M.B., and L.A.B.’s nephew and other sister were also present. At the time, V.S.M.B. was only two months old. The argument continued to escalate, and during the course of the altercation with his sister, L.A.B. became physically violent toward his sister, nephew, and E.B. The police were called, and once they arrived, L.A.B. was arrested. As a result of this particular ordeal, E.B. separated from L.A.B. that night. She packed her belongings with the help of L.A.B.’s sisters, and she moved out of the home the next day, taking their infant child with her.

After they separated and divorced, L.A.B. began continuously harassing E.B. Hal Price, a twenty-year employee by the Southeastern University Police Department, testified that L.A.B. had been harassing E.B. at the university, where both E.B. and L.A.B. were employed. In order to address safety concerns, surveillance cameras were installed in E.B.’s office and undercover policemen were In assigned to escort E.B. around campus. He testified that he was concerned for E.B.’s safety, particularly more so after interviewing L.A.B. Because of L.A.B.’s behavior and the real threat that he posed to E.B. on campus, L.A.B. was eventually asked to resign from his employment with the University.

L.A.B. admitted that he has had no relationship with V.S.M.B., and that he has only seen her at the time she was an infant. He last saw her on March 17, 2001. No one in L.A.B.’s family has seen V.S.M.B. since that date. Moreover, V.S.M.B. has never had any relationship with L.A.B. since and has never received any cards, phone calls, or gifts from L.A.B. or any members of his family.

Contrariwise, J.A.B. is known to V.S.M.B. as her “daddy” and they share a very close and loving relationship. Undis-putedly, she has never known anyone to be her father other than J.A.B. Furthermore, the testimony establishes that V.S.M.B. has a very close and loving relationship with J.A.B.’s immediate family, that V.S.M.B. considers J.A.B.’s parents to be her grandparents, and views his sister as her aunt. She is also very close to her cousins in J.A.B.’s family.

Dr. Karen Van Beyer, a licensed clinical social worker, was accepted by the court as an expert in child custody evaluations and social work. Dr. Van Beyer testified that she reviewed L.A.B.’s psychiatric records, and interviewed and observed V.S.M.B. in her home with J.A.B. and E.B. She concluded that V.S.M.B. was a normal, happy, well-adjusted little girl, who had a very positive, secure attachment to her step-father. She witnessed no evidence of any kind of disorder such as separation anxiety. The most important thing she observed was the very positive attachment V.S.M.B. had to both her mother and stepfather. She stated that V.S.M.B. refers to J.A.B. as “daddy,” and that V.S.M.B. believes that J.A.B. is her father. Dr. Van Beyer also observed that J.A.B. is V.S.M.B.’s psychological father. She defined a “psychological father” as the person with whom the child has the very deep and primary attachment that is going to form the basis of an internal working model. The |1ginternal working model is the pattern formed by a person as a very small child, which determines how the individual will relate to other people for the rest of his life.

The record shows that L.A.B. voluntarily entered the agreement not to visit or communicate with V.S.M.B. for two years in return for economic benefit and personal gain. As a result, he willingly sacrificed any potential relationship that could have been formed with his daughter during the formative years of her life. Thus, his daughter does not recognize nor know him at all, much less view him as her father. Instead, the only person she knows as “daddy” is her stepfather, J.A.B., who has provided for her physical, financial and emotional well-being, and who clearly appears to love her very much.

While the courts must consider the seriousness and finality of the severing of the relationship between the parent and child, as well as the importance and benefit to the child of a continued relationship with the parent, the record establishes that L.A.B. had no relationship whatsoever with V.S.M.B. See Knapp, 577 So.2d at 246. Moreover, considering the effect which the loss of this relationship would have on the child, the loss of any potential relationship with L.A.B. would have no effect on this child, inasmuch as V.S.M.B. does not know L.A.B. See Knapp, 577 So.2d at 246.

In lengthy and thorough reasons for judgment, the district court concluded that it was in the best interest of the child for the adoption to take place. Taking into consideration the relationship of the child with J.A.B. and L.A.B., the district court stated:

The testimony at trial revealed that [V.S.M.B.] has had a close relationship with [J.A.B.] and his family since December of 2000. She has lived with [J.A.B.] since 2002. He is the only “Daddy” she knows. Additionally, [V.S.M.B.] regards [J.A.B.]’s parents as her grandparents and knows his siblings as her aunts and uncles. The evidence presented was of a close, loving family.
[L.A.B.] has had almost no contact with [V.S.M.B.] since November, 1999. The Court notes this was voluntary on [L.A.B.j’s 11apart. He rarely exercised visitation and was in arrears in his child support. In April, 2001, he voluntarily relinquished his right to visitation in exchange for the waiver of his child support obligation. The testimony established a lack of a relationship with [V.S.M.B.] on the part of [L.A.B.] or his family.
There was also evidence presented at trial of [L.A.B.] ’s disturbing and threatening behavior towards [E.B.]. Both [L.A.B.] and [E.B.] were employed at Southeastern University in Hammond. [E.B.] testified that in November, 2002, [L.A.B.] began conduct which she characterized as “harassing”. [L.A.B.] was released from his employment at Southeastern University after a police investigation of his actions towards [E.B.].
The Court having considered the evidence, the testimony adduced at trial and the memoranda of law submitted by counsel, finds it in the best interest of the child to grant the adoption of [V.S.M.B.] by [J.A.B.] thereby changing her name to [V.S.M.BJ.

As a reviewing court, we may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). When factual findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard of review demands great deference to the trier of fact’s findings, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

We have thoroughly reviewed the record, and considering the facts and evidence presented, we find the evidence overwhelmingly supports the conclusion of the trial court that the proposed adoption was in the minor child’s best interest. Thus, we find no error in the district court’s judgment granting the intrafamily of V.S.M.B. by J.A.B.

^CONCLUSION

Based on the above and foregoing reasons, the December 16, 2003 judgment of the district court, granting the petition for intrafamily adoption of V.S.M.B. by J.A.B., is affirmed. Costs of this appeal are assessed against the appellant, L.A.B.

AFFIRMED.

DOWNING, J., concurs with reasons.

FITZSIMMONS, J., concurs in the result only.

| ^OWNING, J.,

concurs and assigns reasons.

I concur in the result. The terms of the judgment itself suggest that LAB would not face contempt proceedings if he attempted to communicate with his child during the prohibited two-year period. Rather, his apparent penalty would be the resumption of child support payments. He clearly chose nonpayment of child support over communication with his child. Saving money cannot constitute “just cause” for failing to visit or communicate with his child.

I disagree with the opinion, however, in its sweeping language rejecting outright any claim that compliance with a consent judgment cannot provide just cause pursuant to La. Ch.C. art. 1245(C)(2).

Properly confected consent decrees affecting child support are enforceable. In Richardson v. Richardson, 02-2415 (La.App. 1 Cir. 7/9/03), 859 So.2d 81, we held that a consent waiver of the ability to modify child support would be enforced unless the agreement was contrary to the child’s best interest or in derogation of the public order. In Stogner v. Stogner, 98-3044, p. 9 (La.1999), 739 So.2d 762, 768, the Louisiana Supreme Court specifically declined to abrogate “that body of law which has recognized that a consent (stipulated) judgment is by its nature a bilateral agreement between the parties wherein the parties adjust their differences by mutual consent and thereby put an end to a lawsuit with each party balancing the hope of gain against the fear of loss.” Therefore, once a consent decree | 3is properly confected, a party may no longer have control over the contents and may be subject to contempt proceedings if he or she fails to comply.

Stogner now controls consent decrees for child support. Stogner instructs us that La R.S. 9:315.1D provides a two-step process for the trial court to follow in initially approving stipulated child support judgments. First, upon presentation, it may review and approve or categorically reject stipulated provisions relating to child support. Stogner, 98-3044 at p. 8, 739 So.2d at 767. Second, if it does not reject the stipulation in favor of the child support guidelines, the trial court must “ ‘consider the guidelines ... to review the adequacy of the stipulated amount.’ ” Id.

Under Stogner, it appears the trial court perhaps should never have signed the consent judgment. I disagree with the assertion, however, that compliance with a consent decree, which is a valid order of a court until vacated, can never constitute just cause for failure to visit, communicate or attempt to communicate with a child. Noncompliance with a court order is grounds for contempt. And there may be circumstances in which court ordered non-communication with a child for extended periods might be justified. Such rulings should be on a case-by-case basis by the trial court.

Accordingly, a properly confected consent decree where custodial rights are preserved could be enforceable, and compliance with a judicial decree could constitute just cause for not visiting or communicating with a child.

Additionally, while a parent may file a motion to amend custody at any time, he or she has the burden of showing both a change in circumstance materially affecting the welfare of the child and that the change is in the best interest of the child. R.J. v. M.J., 03-2676, p. 6 (La.App. 1 Cir. 5/14/04), 880 So.2d 20, 25. So it seems a facile argument to suggest that a parent can change a court ordered custody arrangement at any time.

Even so, I agree that LAB’s consent to the adoption is unnecessary under the facts before us and that the adoption is in the best interest of the child. Accordingly, I concur in the result.

      . Louisiana Children’s Code article 1245(C)(2) provides that when the spouse of a stepparent petitioner has been granted joint custody of the child and the other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months, the other parent’s consent to the adoption is not necessaiy or required.

      . For example, a parent's incarceration is not "just cause” for failing to pay support or communicate with the child. In re Fleming, 2001-1405 (La.App. 5th Cir.4/30/02), 817 So.2d 371, 376. Also, where a mother failed to pay child support in the amount of $61.25 per month, but received social security income of $484.00 per month, mother’s nonpayment of court-ordered child support was deemed to be without just cause. In re D.R.S. and J.A.S., 98-237 (La.App. 5th Cir.8/25/98), 717 So.2d 1259, 1261-1262.

      . Specifically, the April 11, 2001 consent judgment states: "that the agreement reached by the parties shall be subject to non-prejudicial reservation of rights in favor of both parties insofar as the current Consent Judgment granting both parties joint legal custody of the minor .... ” (Emphasis added.)

      . In Macaluso v. Macaluso, 509 So.2d 201 (La.App. 1st Cir.1987), this court was faced with an agreement similar to the one herein, where visitation was made contingent upon payment or nonpayment of child support. Another panel of this court was asked to consider the validity of a consent judgment that contained a provision making the payment of child support contingent upon the child complying with the visitation ordered. This court determined that the provision was clearly against public policy and was absolutely null on its face, Macaluso, 509 So.2d at 202, reasoning that:
      [t]he public policy behind a parent's duty of support is to ensur.e, both for the sake of the child and the sake of the general public which might otherwise have to provide his support, that each child receives support significant for his maintenance and upbringing. Further, the duty of support owed by a parent to a minor child is unilateral in nature and arises by the mere fact of paternity. It is well-established that a parent is not justified in failing to pay support, even when there has been a denial of visitation privileges. The payment of child support can not be made contingent upon the child agreeing to comply with visitation, as was done in this case, because support is not a duty that a parent owes in exchange for visitation. A parent's duty of support arises entirely independent of any issue of visitation privileges, merely by virtue of the child's paternity. (Citations omitted.)
      The Macaluso court concluded that enforcement of the provision making the payment of child support contingent on visitation was ‘ 'clearly ... repugnant to the public policy behind a parent’s duty of support.” Macaluso, 509 So.2d at 203.
      Appellate courts in other states have followed Macaluso by similarly holding that child support payments and visitation rights may not be made dependent on one another. See Scott v. Rutherfoord, 2001 WL 1768943 (Va.Cir.Ct.3/1/01). In Scott, where the noncustodial parent entered into a written agreement with the custodial parent wherein he agreed to pay the custodial parent $10,000.00 per month "if both children complete all visitation as agreed in this agreement for the preceding month,” the court found that the agreement therein amounted to an arrangement whereby the non-custodial parent pays for visitation rights. Scott, 2001 WL 1768943 at p. 2. The Scott court concluded that "[a]n agreement linking the payment of child support to visitation violates public policy and cannot be enforced.” Scott, 2001 WL 1768943 at p. 5.
      In Carter v. Carter, 198 W.Va. 171, 479 S.E.2d 681 (11/18/96), where the trial court reduced the amount of child support arrear-ages to punish the custodial mother for discouraging visitation between the father and the parties' two children, the appellate court reversed the decision of the trial court, finding that "OJust as visitation privileges are not to be conditioned upon the payment [or nonpayment] of child support, a parent's duly to pay child support likewise may not be made contingent upon that parent's exercise of visitation privileges.” Carter, 198 W.Va. at 177, 479 S.E.2d at 687. (Citations omitted.)

      . The child- support obligation was ordered retroactive to the ' date of the filing of the petition. As such, L.A.B. originally owed $4,500.00 in arrears.


source: Caselaw Access Project

author: J^FITZSIMMONS, J. | ^OWNING, J.,

license: Public Domain

text:
    BG WIRE ROPE & SLINGS, INC., Jimmy Lee Dyson and Rock Energy v. Tommy DYSON, Kurt L. Charpentier and Continental Steel Products, Inc.
    No. 2003 CA 2390.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.
    Rehearing Denied Nov. 9, 2004.

      Jeffry L. Sanford, Baton Rouge, Bertha M. Hillman, Thibodeaux, Counsel for Plaintiff/Appellant Rock Energy.
    Kenneth F. Tamplain, Jr., Robert N. Markle, New Orleans, Counsel for Defendants/Appellees Tommy Dyson and Kurt L. Charpentier.
    Before: WHIPPLE, FITZSIMMONS, and DOWNING, JJ.
   J^FITZSIMMONS, J.

Plaintiff, Rock Energy, Inc. (Rock Energy), appealed the trial court’s dismissal of its suit to revive a judgment. We affirm.

To obtain a loan for $103,206.11, BG Wire Rope & Slings, Inc. (BG) entered into an agreement with Community Bank of Lafourche (bank) dated September 3, 1992 and entitled “ASSIGNMENT OF JUDGMENT.” The agreement included the following three paragraphs:

As additional security for the payment of the aforesaid notes in principal, interest, and attorney fees, and the performance of all obligations of assignor, and in accordance with its obligations, assignor does hereby transfer, assign, set over and deliver unto Community Bank of Lafourche, its heirs, successors or assigns, all of its rights, titles, and interests in and to, and in any and all sums due and owing either now or in the future, which assignor has against Tommy C. Dyson, Kurt L. Charpentier, and Continental Steel Products, Inc. by virtue of that certain judgment rendered in the matter entitled “BG Wire Rope & Slings, Inc. and Jimmy L. Dyson vs. Tommy Dyson, Kurt Charpentier, and Continental Steel Products, Inc.[,]” No. 101,982 of the docket of the 32nd Judicial District Court, in and for the Parish of Terrebonne, State of Louisiana, a copy of which is attached hereto and made part hereof for greater reference.
And, said assignor hereby authorizes and directs [the debtors on the 1992 judgment], and/or the Sheriff of the Parish of Terrebonne by virtue of any writ of seizure and sale, their heirs, successors and assigns, to make any payments due and owing under said judgment to Community Bank of Lafourche, and said Community Bank of Lafourche is fully authorized to give receipt in its own name and in the name of Assignor for all such payments.
All sums of money paid to the aforesaid assignee representing payments due pursuant to said judgment shall be applied by Assignee upon the payment of the above referenced promissory notes of BG Wire Rope & Slings, Inc.

The judgment noted in the “Assignment of Judgment” was rendered in June of 1992.

On June 25, 2002, Rock Energy, Inc. filed a “Petition to Revive Judgment” against Tommy Dyson, Kurt Charpentier, and Continental Steel Products, Inc., the debtor-defendants named in the 1992 judgment. In the petition, Rock Energy alleged that it was a holder in due course of the 1992 judgment. Rock Energy | ^claimed to have acquired the 1992 judgment by an assignment from BG in March of 1994. Two of the named defendants in this suit, and in the 1992 judgment, Tommy Dyson and Kurt Charpentier, filed a peremptory exception raising the objection of no right of action. Mr. Dyson and Mr. Charpentier argued that BG had already assigned the judgment to the bank in September of 1992, and thus, BG had no right to assign the same judgment to Rock Energy in 1994. In May of 1997, the bank assigned the 1992 judgment to Mr. Dyson and Mr. Charpentier. On June 12, 1997, BG filed a pleading entitled “Satisfaction of Judgment,” which stated that the 1992 judgment had been fully paid. To defeat the claim of Mr. Dyson and Mr. Charpentier to the 1992 judgment, which allegedly led to BG’s filing of the satisfaction of judgment, Rock Energy argued that the September, 1992 “Assignment of Judgment” to the bank was only a pledge or posting of additional security for the loan made to BG. Therefore, BG had the right to assign the 1992 judgment to Rock Energy in 1994.

The issue considered at the hearing on the exception of no right of action was the proper characterization of the September 3, 1992 document entitled, “Assignment of Judgment.” After reading the document, the trial court found that the words, “As additional security,” did not derogate from the more apparent intent of the parties exemplified by the following clause: “assignor does hereby transfer, assign, set over and deliver unto Community Bank of Lafourche, its heirs, successors or assigns, all of its rights, titles, and interests in and to, and in any and all sums due and owing either now or in the future .... ” Thus, BG held no rights or title in the judgment that could be transferred or assigned to Rock Energy in 1994.

On November 20, 2002, the trial court rendered a judgment granting the defendants’ exception of no right of action and dismissed Rock Energy’s suit to renew the 1992 judgment. Rock Energy filed a motion for new trial based on an|4affidavit by Richard Bouterie, the attorney who prepared the 1992 assignment of judgment to the bank. The trial court found that the affidavit was not newly discovered evidence. When asked by the court why Rock Energy did not submit the affidavit as evidence during the trial on the exception, counsel for Rock Energy stated that he believed that the intent of the document was clear from the words, “As additional security.” Therefore, counsel argued, he did not realize that the intent of the document would be at issue. The trial court apparently disagreed and denied the motion for new trial.

Rock Energy appealed and asserted two assignments of error. In the first assignment, Rock Energy argues that the trial court erred in its grant of the exception of no right of action based on its finding that the document was a transfer for value rather than a mere security device. Secondly, Rock Energy protests the trial court’s refusal to allow introduction of the affidavit at the hearing on the motion for new trial.

The peremptory exception raising the objection of no right of action tests whether the plaintiff has a real and actual interest in the suit. Sivils v. Mitchell, 96-2528, p. 3 (La.App. 1 Cir. 11/7/97), 704 So.2d 25, 27; see La. C.C.P. art. 927 A(5). Evidence may be admitted to support or controvert the exception of no right of action. La. C.C.P. art. 931.

An assignment of an asset as payment, and the pledging or offering of security to be held until a loan is paid, are not the same transaction and do not produce the same consequences. An assignment transfers title of the asset to the assignee, who then has the immediate right, upon signing of the agreement, to pursue payment of the loan from the assigned asset. With a pledged asset, the creditor must wait until the debtor defaults on the loan before the asset may be | Sused for payment. However, use of particular terms within an agreement, such as “additional security” or pledge, does not alone characterize the agreement or invalidate a finding that the agreement was an assignment. Mahayna, Inc. v. Poydras Center Associates, 96-2089, p. 4 (La.App. 4 Cir. 4/30/ 97), 693 So.2d 355, 357, writ denied, 97-1741 (La.10/13/99), 703 So.2d 619.

After a thorough review of the record, we cannot say that the trial court erred in its finding that the document was an assignment, and not merely the granting of additional security or a pledge. We rely on the same language highlighted by the trial court and the two paragraphs that followed. The document clearly transfers and assigns to the bank, and its assignees, all of BG’s “rights, titles, and interests,” to sums due, “now or in the future,” under the 1992 judgment. The bank was “fully authorized to give receipt in its own name and in the name of the Assignor for all such payments” made under the judgment and applied to BG’s bank loan. As in Mahayna, the creditor, in our case the bank, had the “immediate right” to collect, and was not required by the agreement to wait until BG defaulted on the loan before any assets recoverable under the 1992 judgment could be used for repayment. Mahayna, 96-2089 at pp. 5-6, 693 So.2d at 358. We agree with the trial court’s reasoning that the use of the words “additional security” cannot alone overcome the plain meaning of the document read in toto. Based on a reading of the document as a whole, the 1992 judgment, although referred to as “additional security,” was actually assigned to the bank, and its “assigns,” as a source for payment of the loan at the time of the transfer and in the “future.” Without a valid assignment from BG, Rock Energy had no actual interest in this suit to renew the 1992 judgment. See Sivils, 96-2528 at p. 3, 704 So.2d at 27. Thus, the exception of no right of action was properly granted.

“A new trial shall be granted, upon contradictory motion of any party,” if “the party has discovered, since the trial [or evidentiary hearing], evidence | fimportant to the cause, which he could not, with due diligence, have obtained before or during” the evidentiary hearing or trial. La. C.C. P. art. 1972(2). “A new trial may be granted ... if there is good ground therefor .... ” La. C.C.P. art. 1973. A decision on a motion for new trial rests within the trial court’s discretion. See Burris v. Wal-Mart Stores, Inc., 94-0921, p. 6 (La.App. 1 Cir. 3/3/95), 652 So.2d 558, 561, writ denied, 95-0858 (La.5/12/95), 654 So.2d 352. Although an interlocutory judgment, such as a denial of a motion for new trial, is not generally appealable, it is subject to review by an appellate court when an appealable judgment is rendered in the same ease. Bailey v. Robert V. Neuhoff Limited Partnership, 95-0616, pp. 3-4 (La.App. 1 Cir. 11/9/95), 665 So.2d 16, 18, writ denied, 95-2962 (La.2/9/96), 667 So.2d 534.

Under the facts here, we find no error or abuse of discretion in the trial court’s denial of Rock Energy’s motion for new trial. The intent of the parties to the agreement at issue was clearly placed before the trial court. The information contained in the affidavit was available to both parties before the hearing on the exception of no right of action, and does not qualify as newly discovered evidence. See La. C.C.P. art. 1972(2). Nor does a post-judgment attempt to submit additional evidence, on an issue that was before the court, provide a sufficiently “good ground” for the grant of a new trial. See La. C.C.P. art. 1973.

For these reasons, we affirm the judgment. The costs of the appeal are assessed to the plaintiff-appellant, Rock Energy.

AFFIRMED.

DOWNING, J., dissents and assigns reasons.

| ^OWNING, J.,

dissenting and assigning reasons.

Respectfully, I dissent from the majority opinion. I conclude that Rock Energy has a right of action in this matter and that the trial court committed legal error in sustaining the exception. The September 1992 “Assignment of Judgment,” when read as a whole, unambiguously shows that the assignment of the judgment was an accessory contract of some sort. See La. C.C. art. 1913: “A contract is accessory when it is made to provide security for the performance of an obligation.” See also La. R.S. 10:1-201: “ ‘Security Interest’ means an interest in personal property or fixtures, created by contract, which secures payment or performance of an obligation.”

The Assignment of Judgment at issue clearly states that BG Wire Rope and Slings, Inc. is “justly and truly indebted unto Community Bank of Lafourche, ... in the principle sum of ... ($103,206.11) Dollars, represented by Assignors two certain promissory notes as follows, to wit[.]” (Emphasis added.) The Assignment of Judgment then lists two promissory notes totaling the exact amount of the debt.

The instrument then assigns the judgment at issue “[a]s additional security for the payment of the aforesaid notes ... in accordance with its (sic) obligations .... ” (Emphasis added.) The assignment further provides | ?that all payments made to Commerce Bank pursuant to the judgment shall be applied to payment of the promissory notes.

To interpret this Assignment of Judgment as transferring title to the judgment at issue could give Community Bank of Lafourche a double recovery on BG Wire’s indebtedness. Community Bank could be paid in full on the notes and still be the owner of a judgment allegedly valued at more than $198,000. The unambiguous language of the document states that this is not the intended result of the parties. The judgment is assigned to provide security for the payment of the promissory notes. And the language giving Community Bank the right to collect payments under the judgment, though strongly worded, is clearly qualified by the statement that the assignment is provided as additional security for payment of the notes.

Further, security for a discrete obligation should be released once the secured obligation is paid. See Baton Rouge Wood Products, Inc. v. Ezell, 194 So.2d 372 (La. App. 1 Cir.1966) for the proposition that generally a mortgage, and presumably any accessory device given as security for specific indebtedness, is canceled and extinguished upon payment of the indebtedness. Therefore, Commerce Bank’s interest in the judgment should terminate if the promissory notes are paid according to their terms.

The majority relies on the Fourth Circuit case, Mahayna Inc.v. Poydras Center Associates, 96-2089 (La.App. 4 Cir. 4/80/97, 693 So.2d 355), in support of its conclusions. While this case is analogous in many respects, I respectfully suggest that it was wrongly decided or at least should be limited to its facts. See David Willenzik, Louisiana Secured Transactions, Appendix 2. UCC Article 9 Case Law (1999) § 4, Personal Observations. This article states: “The appeals court was correct in holding in favor of Whitney [Bank], but did so for the wrong reasons.” It continued, “Clearly, the parties intended | ¡¡that the assignment of Mahayna’s interest in its lawsuit against Poydras be given as security for Hayne’s ... loan to Hay-wilk, which loan was made for the benefit of Mahayna. As such, the transaction was a ‘security interest’ under La UCC 1[-]201(37) and a secured transaction subject to Louisiana UCC Article 9. The Appeals Court erred in not recognizing this fact.” (Emphasis added.) The article’s final observation was that, “[t]he Mayhay-na [decision] is the first case decided by a Louisiana Court that incorrectly interpreted and applied the provisions of Louisiana UCC Article 9. Whitney did not appeal this decision to the Louisiana Supreme Court in that Whitney was the prevailing party even though the Appeals Court was wrong in its legal holding.”

Further, the assignment in Mayhayna provided that the assignor retained the authority to assign any amount received pursuant to its assigned cause of action against Poydras Center Associates in excess of the amounts due on the loan. Mayhayna, 96-2089, p. 3, 693 So.2d at 356-57. Accordingly, this assignment could not be completely translative of ownership.

Therefore, we should not follow the Fourth Circuit opinion in Mayhayna and we should recognize that the Assignment of Judgment at issue was a security device, not a transfer of full ownership in the judgment.

Rock Energy claims its right of action through a second assignment from BG Wire in March 1994. This assignment of the judgment by BG Wire assigns its right, title and interest to Rock Energy “without warranty of title” for consideration of $100.00 and other good and valuable consideration.

Defendants claim their ownership of the judgment by a different assignment from the Community Bank of Lafourche in May 1997 for | ¿consideration of $40,000. This assignment does not mention or reference the status of the secured promissory notes, although this document states that payment is given “in satisfaction of the payment of the indebtedness owed to Community Bank .... ” After receiving the assignment of the judgment, defendants had a document filed in the public record declaring that the judgment was satisfied.

The fact that Community Bank transferred its interest in the judgment to the defendants without also transferring the notes secured thereby raises several interesting questions, the answers to which are not apparent from the record: were the notes paid or not; was there another agreement between BG Wire and Commerce Bank authorizing the bank’s subsequent transactions; if the debt on the note was compromised, why wouldn’t the security have been released absent judicial proceedings or other agreement?

Nonetheless, from the record it appears that Rock Energy possesses an ownership interest in the judgment. Accordingly, it has a right of action under the assignment from BG Wire to pursue the relief it seeks, revival of the judgment at issue. I therefore disagree with the majority opinion.

I note that the basis for the original exception of no right of action was that Rock Energy, as a juridical person, had no authority to file a petition on its own behalf. The trial court did not address this issue in its judgment, and I make no comment on the merits of this argument.

      . In its brief, Rock Energy states that the appellees, Mr. Dyson and Mr. Charpentier, wrongfully acquired control of BG, and committed other wrongful acts in their dealings with BG and Rock Energy. However, those claims were not at issue in the hearing on the exception of no right of action and are not before this court.


author: 1-1 SULLIVAN, Judge.

text:
    STATE of Louisiana v. Corey Marquee ADAMS, Whitney Batiste, and Horatio Adams.
    No. 2004-77.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Michael Harson, District Attorney, Keith A. Stutes, Assistant District Attorney, Lafayette, LA, for State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Corey Marquee Adams.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Whitney Batiste.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Horatio Adams.
    Corey Marquee Adams, Louisiana State Prison, Angola, LA, Pro Se.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   1-1 SULLIVAN, Judge.

Brothers Corey Adams, Horatio Adams, and Whitney Batiste appeal their convictions for the second degree murder of Jimmie Chandler. For the following reasons, we affirm Corey and Whitney’s convictions and Corey’s sentence; we reverse Horatio’s conviction and reinstate his guilty plea and sentence.

Facts

At approximately 3:30 p.m. on Thanksgiving Day in 2001 in Lafayette, Jimmie Chandler was walking to a store to buy a disposable camera for another resident of the halfway house where he lived. About the same time, Corey Adams was driving in the vicinity; his brothers, Horatio and Zachary Adams were passengers in the car. Corey parked his car near a building where Mr. Chandler was walking, and all three got out of the car. Corey and Zachary remained near the car, while Horatio walked behind the building.

As Mr. Chandler walked by Corey and Zachary, Corey called out to him. Mr. Chandler responded, and the men began arguing. The argument quickly escalated into physical violence. Corey hit Mr. Chandler with a stick, and Zachary punched him. At some point, Corey threw or discarded the stick and resorted to using his fists. Returning to the scene, Horatio also began punching Mr. Chandler. Suddenly, Whitney appeared on the scene with a knife and began stabbing Mr. Chandler while the others continued to hit him. At some point, Mr. Chandler fell to the ground, but the four brothers continued attacking him. When a bystander approached, Corey, Horatio, and Zachary returned to the car and drove away, and Whitney left the area on foot.

li>Mr. Chandler ultimately died of multiple stab wounds. The subsequent police investigation led to the arrest and indictment of all four brothers. On January 16, 2002, in Lafayette Parish, the State filed an indictment charging Corey, Horatio, Zachary, and Whitney with second degree murder, a violation of La.R.S. 14:30.1.

On August 5, 2002, Corey, Zachary, and Horatio each pled guilty to the reduced charge of second degree battery, a violation of La.R.S. 14:34.1. Pursuant to their plea agreements, the three brothers were to testify truthfully at Whitney’s trial. Whitney was tried for second degree murder, but the proceeding ended with a hung jury.

On August 14, 2002, the State filed a motion to rescind all three of the Adams’ plea agreements. After a hearing on September 13, 2002, the trial court granted the motion with regard to Corey and Horatio but denied the motion as to Zachary. In August 2003, Corey, Horatio, and Whitney were tried and convicted by a jury of second degree murder.

Corey filed a motion for new trial, a motion for post-verdict judgment of acquittal, and a motion in arrest of judgment. On August 27, 2003, the trial court denied all three motions, then proceeded to sentencing. Corey, Horatio, and Whitney were sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence, as required by statute. They all seek review by this court. Corey assigns five errors; Horatio and Whitney each assign two errors.

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, one error regarding Corey’s sentencing was found.

_jjThe language of La.Code Crim.P. art. 873 requires a delay of at least twenty-four hours between the denial of a motion for new trial or a motion in arrest of judgment and sentencing. Corey filed a motion in arrest of judgment, a motion for post-verdict judgment of acquittal, and a motion for new trial. All three motions were denied on the same date Corey was sentenced. There is no indication in the record that the twenty-four-hour delay was waived. Any error in this respect is harmless because Corey received a mandatory life sentence. See State v. Porter, 99-1722 (La.App. 3 Cir. 5/3/00), 761 So.2d 115; State v. Williams, 617 So.2d 557 (La.App. 3 Cir.), writ denied, 623 So.2d 1331 (La.1993).

Rescission of Plea Agreements

On August 5, 2002, pursuant to a plea agreement, Corey, Horatio, and Zachary entered pleas of guilty to a lesser charge, second degree battery. The plea agreements were conditioned upon them testifying “truthfully” at Whitney’s murder trial.

At Whitney’s first trial, the three Adams brothers testified for the State. However, the jury was unable to reach a verdict, and the court declared a mistrial on August 7, 2002. Thereafter, the State filed motions to rescind the plea agreements of the three Adams brothers, alleging they did not testify truthfully at Whitney's trial. The trial court conducted a hearing on the State’s motions and granted the motions as to Corey and Horatio, but denied the motion as to Zachary.

In State v. Givens, 99-3518, pp. 14-15 (La.1/18/01), 776 So.2d 443, 455 (emphasis added), the supreme court addressed disputed plea agreements, explaining:

In determining the validity of agreements not to prosecute or of plea agreements, Louisiana courts generally refer to rules of contract law, while recognizing at the same time that a criminal defendant’s constitutional right to fairness may be broader than his or her rights under contract law. See State v. Louis, 94-0761, p. 7 (La.11/30/94), 645 So.2d 1144, 1148 (citing State v. Nall, 379 So.2d 731 (La.1980); State v. Lewis, 539 So.2d 1199 (La.1989)). The first step under contract law is to determine whether a contract was formed in the first place through offer and acceptance. Id. at 1149; La.Civ.Code art.1927. The party demanding performance of a contract has the burden of proving its existence. Louis, 645 So.2d at 1149. In the context of plea bargains, a defendant may demand specific performance of the state’s promise if he can show that the parties reached an agreement, that he performed his part of the agreement, and that in doing so, he relinquished a fundamental right Id. at 1149-50. See also State v. Tanner, 425 So.2d 760, 763 (La.1983).

The parties acknowledge that valid plea agreements existed. Therefore, we must determine whether Corey and Horatio performed in accordance with the terms of their plea agreements. The burden of proof is on them to establish that they complied with their plea agreements. Id.

No Louisiana case addresses the applicable standard of review in this situation. In U.S. v. Ballis, 28 F.3d 1399, 1409 (5th Cir.), rehearing denied, 39 F.3d 322 (5th Cir.1994), the court held that “[a] district court’s finding as to whether a defendant has breached a plea agreement will be overturned only if clearly erroneous.” This standard of review applies to a trial court’s factual findings during a hearing to suppress evidence. State v. Casey, 99-28 (La.1/26/00), 775 So.2d 1022. We find the standard appropriate to this situation.

The State’s acceptance of Corey’s, Horatio’s, and Zachary’s pleas was premised on them cooperating and testifying truthfully in the prosecution of Whitney, as specified by the prosecutor:

An absolute important plank of that agreement is that the defendants provide truthful cooperation in the trial of the remaining defendant, Whitney Adams Batiste. I would ask that each defendant declare that that is the foundation of this plea and the recommendation of the ultimate sentence the Court will deliver, that they will, in fact, provide truthful cooperation against that remaining defendant.

| RThe trial court individually questioned Corey, Horatio, and Zachary regarding their understanding and agreement to testify “truthfully,” and each affirmatively acknowledged that he understood that his plea agreement was based on his truthful cooperation and testimony at Whitney’s trial. The prosecutor then stated the factual basis for the pleas. Again, Corey, Horatio, and Zachary were each asked whether the recited facts were correct, and each responded “yes.”

During the hearing on the State’s motions to rescind the plea agreements, the trial court made the following observations:

Part of what [the prosecutor] stated [in the Boykinization] is that ... “Out of nowhere, according to the defendants, came Whitney Batiste. Whitney Batiste appeared, produced a knife, which they have described as a brass knuckle knife that fits around the knuckles and extends the blade from — folding out from the knuckles, and then began to stab, and stabbed repeatedly the victim.”
That was in the factual basis given by [the prosecutor]. It specifically stated that the defendants would testify that they saw Whitney Batiste stab the victim. And, in fact, all three of the defendants agreed with that factual basis.
When time for testimony came, the only one who testified in accordance with that was Zachary Adams. Horatio said he didn’t see anybody stabbing anybody. And Corey said he didn’t even see a knife. Now, that is not consistent with the factual basis that [the prosecutor] placed in the record.
[W]hen Horatio got up to testify, he wouldn’t say that he saw the stabbing. He said, I saiv him swinging. That was not in accordance with what he indicated to [the prosecutor] that — what his testimony would be, that he saw Whitney Batiste stab the victim. He wouldn’t say it.

(Emphasis added.)

While testifying at the first trial, Corey acknowledged that his failure to testify truthfully could result in the resumption of his murder prosecution. However, he | fidenied that he saw Whitney with a knife and testified that he did not see anyone stab Mr. Chandler. He argues that the trial court erred in allowing the State to rescind his plea agreement and in vacating his plea and sentence because the factual recitation was not part of the plea agreement. We disagree. The transcript of the plea hearing establishes that the factual basis was an integral part of the plea agreements and that Corey acknowledged that it was.

Corey also takes the position that nothing in the record evidences that he saw Whitney stab Mr. Chandler. In rejecting this argument, the trial court considered that he pled guilty in open court pursuant to the factual recitation which described Whitney’s knife attack on Mr. Chandler. The trial court also considered his physical proximity to the stabbing, the fact that it was a multiple stabbing, and that eyewitnesses from farther away saw the stabbing. As the court observed, it would be incredible if Corey had not seen the stabbing, as he claimed at the first trial.

We find no error with the trial court’s conclusion that Corey breached his agreement to testify truthfully against Whitney. Accordingly, we find no error with the trial court’s rescission of his plea agreement.

Horatio contends that he complied with his plea agreement and testified truthfully regarding Whitney’s role in Mr. Chandler’s death. Horatio was evasive and not forthcoming with his testimony against Whitney at the first trial, and he admitted that he did not want to testify against his brother. However, the following colloquy reveals that, in answering the prosecutor’s questions, he did testify that Whitney stabbed Mr. Chandler with a brass knuckle knife:

Q. Did [Whitney] have a knife in his hand?
A. Uh, yeah. Yeah.
|7Q. Whitney had a knife in his hands?
A. (Nodded head‘Tes”).
Q. What did that knife look like?
A. Uh, a brass knuckle knife.
Q. How many knives did you see during that encounter?
A. One.
Q. Who had that knife?
A. Whitney.
Q. Did you see Whitney stab the old man with that knife?
A. I seen him swinging.
Q. Did you see anybody stab that old man, other than Whitney ?
A. No.
Q. What did — Did Whitney actually use that knife on the old man?
A. Yep.

(Emphasis added.)

Horatio’s responses to the prosecutor’s questions puts a knife like that described by the prosecutor at the plea hearing in Whitney’s hands, has Whitney swinging the knife, and only Whitney stabbing Mr. Chandler with the knife. In light of this testimony, we find the trial court’s finding that Horatio did not testify truthfully at the first trial was clearly erroneous. The rescission of his plea agreement is reversed.

| Sufficiency of the Evidence

Corey argues that the evidence adduced at trial was insufficient to support his conviction and that he was improperly convicted as a principal to the murder. He contends that the jury improperly transferred Whitney’s intent to him and that the evidence failed to exclude every reasonable hypothesis of innocence.

In State v. Myers, 584 So.2d 242, 248-50 (La.App. 5 Cir.), writ denied, 588 So.2d 105 (La.1991), cert. denied, 504 U.S. 912, 112 S.Ct. 1945, 118 L.Ed.2d 550 (1992) (emphasis added), the court thoroughly discussed sufficiency of the evidence in a similar second degree murder case, explaining:

Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. LSA-R.S. 14:30.1. Specific criminal intent exists when the circumstances indicate that the defendant actively desired the prescribed criminal consequences to follow his act. LSA-R.S. 14:10(1).... Furthermore, all persons concerned in the commission of a crime whether present or absent, and whether they directly commit the act constituting the offense, aid or abet in its commission, or directly or indirectly counsel or procure another to commit the crime are principals. LSA-R.S. 14:24.
In evaluating the sufficiency of the evidence, the standard to be used by the appellate court is whether viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988); State v. DiLosa, 529 So.2d 14 (La.App. 5th Cir.1988), writ denied, 538 So.2d 1010 (La.1989).... [A]ll evidence both direct and circumstantial must be sufficient under Jackson to satisfy a rational trier of fact that the defendant is guilty beyond a reasonable doubt.. State v. Porretto, [468 So.2d 1142 (La.1985)].
The severity of the attack on [the victim], in which she was bludgeoned to death with a baseball bat, indicates that the defendant had the specific intent to kill or to inflict great bodily harm when he struck her. See State v. Richard, 525 So.2d 1097 (La.App. 5th Cir.1988), writ denied, 538 So.2d 609 (La.1989). Further, the fact that both defendants were present when the victim was murdered and both had splatters of |9blood on their clothing which matched the victim’s could allow a rational trier of fact to find that both defendants were guilty, either by actually committing the offense or by acting as a principal to the offense.
The appellate court’s primary function is not to redetermine a defendant’s guilt or innocence in accordance with its appreciation of the facts and credibility of the witnesses. Rather, its function is to review the evidence in the light most favorable to the prosecution and determine whether there is sufficient evidence to support the verdict. State v. Burrow, 565 So.2d 972, 977 (La.App. 5th Cir.1990). From the totality of the evidence submitted by the prosecution, a rational trier of fact could have found that each defendant was either guilty of second degree murder or a principal to it.

Corey alleges that the State failed to prove that he had the specific intent to kill or inflict great bodily harm upon Mr. Chandler. While the bulk of the evidence indicated that Whitney was the person who actually stabbed Mr. Chandler, and there are some suggestions that Horatio may have stabbed him as well, the evidence showed that Corey initiated the altercation, that he used a broomstick to hit Mr. Chandler, that he punched him with his fists, and that he continued to beat him after he fell to the ground.

Corey’s attorney argued that the evidence showed that Whitney acted independently when he stabbed Mr. Chandler and suggested that Corey had no way of knowing that Whitney, who approached the scene and joined the fight separately from his brothers, would stab him. Conversely, the State argued that Corey was obviously close enough to see Whitney stabbing Mr. Chandler, but he continued beating him.

Eyewitness Sandrika Comeaux testified that she saw Corey, whom she knew as “Snow,” and two other men beating an “old man,” and that Corey had a stick. At some point, a fourth man approached the scene, produced a knife, and stabbed the old man. According to Ms. Comeaux, the old man was already on the ground when the |infourth man stabbed him. Meanwhile, Corey and the other two men continued kicking him. Ms. Comeaux testified that her uncle, Christopher Isaac, then approached the scene and that Corey and the other men left the area when he did. According to Ms. Comeaux, the man who stabbed the old man departed on foot, while the other three left in a car driven by Corey.

Mr. Isaac testified to generally the same scenario. However, he stated that after the old man fell, Corey and two other men knelt down and continued punching him, rather than standing and kicking him as Comeaux’s testimony suggested. Mr. Isaac also testified that Corey almost hit him with his car as he drove away and that as he did so he said “the old man deserved what he got.” Another witness, Cindy Schwehm, testified that she saw three men beat Mr. Chandler by squatting and punching him and by kicking or stomping on him. Ms. Schwehm also testified that she heard someone in the car say, “Let a n-die in peace,” but could not identify the speaker. Another witness, Otis Broadway, also testified that as Corey drove away, he made a remark that Mr. Chandler deserved to die.

Thelma Joiner, Defendants’ aunt, testified that the Adams brothers went to her house on the evening of Thanksgiving 2001 and that Horatio had a cut near one of his eyebrows and Corey’s knuckles were “all cut up.” Their injuries appeared to be fresh to Ms. Joiner. Approximately eleven hours after the incident, the arresting detective also noticed the abrasions on Corey’s knuckles.

The jury could have reasonably concluded from this evidence that Corey had the specific intent to, at the least, inflict serious bodily harm on Mr. Chandler and that he was guilty of second degree murder or that he was a principal to second degree murder.

| ^Alternatively, Corey contends that he acted in defense of his brother, Zachary. La.R.S. 14:20 states, in pertinent part:

A homicide is justifiable:
(2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.

When a defendant in a homicide prosecution asserts that the homicide he committed was justified, the State bears the burden of proving beyond a reasonable doubt that the homicide was not committed in self-defense. State v. Miller, 98-642 (La.App. 3 Cir. 10/28/98), 720 So.2d 829, writ denied, 98-3119 (La.5/14/99), 741 So.2d 659.

During the second trial, Zachary described a scenario in which Corey helped defend him from Mr. Chandler’s advances. He testified that Mr. Chandler initially approached them and asked a question. Apparently thinking the man was asking about drugs, Corey answered in the negative. According to Zachary, Mr. Chandler then advanced and used an ink pen to cut him on the arm and on the back. It was at that time that Corey armed himself with a stick. However, while still under direct examination, Zachary refreshed his memory with a transcript from the first trial and acknowledged that his testimony in the two trials differed. Apparently, his prior testimony did not depict a scenario in which Chandler attacked first. Further, he became evasive and acknowledged that he did not want to get his brothers in trouble.

|12Given the evasive nature of some of Zachary’s responses, and the fact that it was not consistent with his' testimony from the first trial, the jury could reasonably have rejected his account of Corey defending him from Mr. Chandler. Further, even if the jury accepted Zachary’s account of events, it did not justify Corey’s act of continuing to beat Mr. Chandler while his brothers also attacked him.

For these reasons, we find that the State excluded justification and every reasonable hypothesis of innocence and proved its case against Corey Adams beyond a reasonable doubt. This assignment lacks merit.

Excessive Sentence

Corey argues his life sentence for second degree murder is constitutionally excessive. A life sentence for second degree murder is mandatory, pursuant to La.R.S. 14:30.1. Regarding excessiveness claims for such sentences, this court has explained:

[A] court may depart from a minimum sentence only if it finds that there is clear and convincing evidence that rebuts the presumption of constitutionality. State v. Lindsey, 99-3256, 99-3302 (La.10/17/00), 770 So.2d 339, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001). To rebut the presumption, a defendant must show, by clear and convincing evidence, that, “because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 676 (quoting from Judge Plotkin’s concurrence in State v. Young, 94-1636, pp. 5-6 (La. App. 4 Cir. 10/26/95), 663 So.2d 525, 531, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223).

State v. Paddio, 02-722, pp. 16-17 (La. App. 3 Cir. 12/11/02), 832 So.2d 1120, 1131, writ denied, 03-402 (La.2/13/04), 867 So.2d 682.

Corey has failed to prove by .clear and convincing evidence the existence of unusual circumstances which demonstrate that he is “a victim of the legislature’s 113failure to assign sentences that are meaningfully tailored to [his culpability], the gravity of his offense, and the circumstances of [this] case.” Id. Furthermore, he failed to prove any unusual circumstances warranting a departure from the mandatory minimum sentence provided by the legislature. His sentence is not constitutionally excessive. State v. Ross, 03-564 (La.App. 3 Cir. 12/17/03), 861 So.2d 888, writ denied, 04-376 (La.6/25/04), 876 So.2d 829.

Other than an implication that the conviction itself was unconstitutional, Corey does not allege a basis for finding the sentence excessive. The basic claim of an unconstitutional conviction is not the proper subject of an excessive-sentence review, and Corey fails to specify why his conviction should be considered unconstitutional. He falls far short of rebutting the presumption that his sentence was- proper.

This assignment lacks merit.

Double Jeopardy

Corey next argues that he was subjected to double jeopardy. Prior to the first trial, he was sentenced to five years imprisonment pursuant to his plea agreements. Jeopardy attached at that time. La.Code Crim.P. art. 592. He claims his subsequent murder conviction was based upon the same set of facts that supported his guilty plea for second degree battery and that his trial after the plea rescission placed him in jeopardy a second time.

In Ricketts v. Adamson, 488 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987), the defendant pled guilty pursuant to a plea bargain in which he agreed to testify truthfully against his co-defendants. Provisions of the agreement specified it would be completely nullified if the defendant did not meet his obligations thereunder. The defendant testified at his accomplices’ trial, and they were convicted. However, their convictions were |uthen overturned on appeal, and the defendant refused to testify at the re-trials of the co-defendants because he felt he had met the obligations of his plea agreement by testifying at the first trial. The prosecutors pursued the original charge against him and secured a conviction. The defendant appealed, alleging that, in light of his prior guilty plea, the prosecution violated double jeopardy protections.

The Supreme Court held that Ricketts’ prosecution did not violate double jeopardy principles because he breached his original plea agreement. In its reasoning, the Court noted that although there was no specific waiver of double jeopardy protections, the plea agreement specifically stated that a breach of the agreement would return the case to the status quo ante, which it equated to an explicit double jeopardy waiver, observing: “[Respondent knew that if he breached the agreement he could be retried.” Id. at 10, 107 S.Ct. at 2686.

The Court further noted that the breach ultimately stemmed from the defendant’s voluntary action, ie., his refusal to testify at the retrial of the co-defendants and that he fully understood the consequences of the breach at the time of the plea hearing. The Court concluded that enforcement of the plea agreement did not violate the Double Jeopardy Clause. See also U.S. v. Scott, 487 U.S. 82, 99, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65 (1978), where the Supreme Court determined that “the Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.”

Corey’s situation is different from that of the defendant in Ricketts because his plea agreement did not explicitly state that a breach of the plea agreement would return his case to their pre-plea posture. However, it is clear from his testimony at the plea hearing and at the first trial that he knew that, if he failed to testify truthfully | ^regarding Whitney’s actions in the death of Mr. Chandler, he could be tried for second degree murder. Knowing the consequences, he chose not to fulfill the requirements of his plea agreement. We find no violation of the Double Jeopardy Clause.

This assignment lacks merit.

Ineffective Counsel

Corey next contends that his trial counsel was ineffective. His argument includes assertions regarding the content of private conversations he had with counsel which are not part of the record. For example, he alleges that his counsel repeatedly ignored him when he desired consultation and admitted to being racially prejudiced and to not properly representing him. These contentions cannot be considered without evidence and are deferred to post-conviction proceedings where a record can be developed regarding events that transpired between Corey and his trial counsel.

This assignment lacks merit.

Inconsistent Theories of Guilt

Corey next argues that the State argued inconsistent theories of guilt in the two trials in violation of his due process rights. He urges that the State’s theory in the first trial — Whitney was the lone killer and that he, Horatio, and Zachary were guilty of mere battery — is inconsistent and irreconcilable with the theory presented in the second trial — he, Whitney, and Horatio all contributed to Mr. Chandler’s death. He cites various federal cases in support of his argument.

One of the cases Corey relies upon for this assignment is Thompson v. Calderon, 120 F.3d 1045 (9th Cir.1997) (en banc), rev’d on other grounds, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). In Thompson, two defendants were convicted of murder 116in separate trials. The prosecutor presented different theories and motives for the defendants, as well as a completely different lineup of witnesses in each trial. Many of the witnesses presented contradictory stories when they testified. The prosecutor in Thompson did not just place different emphasis on the evidence, as in this case, he “manipulated evidence and witnesses, argued inconsistent motives, and at [the second defendant’s] trial essentially ridiculed the theory he used to obtain a conviction and death sentence [in the first defendant’s] trial.” Id. at 1057. The Supreme Court found that these actions violated the Due Process Clause.

The prosecutor in this case did not present “inconsistent theories or facts” in these two trials. Rather, he emphasized the effect of Whitney’s stab wounds on Mr. Chandler and de-emphasized the effect of the blows administered by Corey, Horatio, and Zachary in the first trial, leaving open the issue of the Corey, Horatio, and Zachary’s culpability. In the second trial, he presented the same evidence by the same •witnesses but with different emphasis on the effect the beating administered by Corey and Horatio had on Mr. Chandler. The theories of guilt in the two trials were clearly supported by the evidence and were not inconsistent.

This assignment lacks merit.

Defective Indictment

Whitney argues the indictment was defective because it was accepted by a judicial district commissioner, rather than a judge. Citing this court’s opinion in State v. Umezulike, 02-1165 (La.App. 3 Cir. 4/9/03), 843 So.2d 614, he analogizes the receipt of a grand jury report and supervision of the grand jury to the function of issuing probable cause warrants and contends that such an action was an improper exercise of adjudicatory power by the commissioner. Pursuant to Ume-zulike, he 117argues that the commissioner was not constitutionally authorized to take such action. Umezulike has been reversed. See State v. Umezulike, 03-1404 (La.2/25/04), 866 So.2d 794. In Umezulike, the supreme court concluded that the grant of authority to a commissioner to issue search warrants on probable cause was not unconstitutional, noting that there is no requirement that a warrant must be issued by a judge and that the probable cause determination is a quasi-judicial function.

Whitney also cites State v. O’Reilly, 00-2864 (La.5/5/01), 785 So.2d 768, where the supreme court determined that the delegation of authority to a commissioner to conduct trials, accept pleas, and impose sentences in misdemeanor cases was found to be unconstitutional.

La. Const, art. V, § 1 provides: “The judicial power is vested in a supreme court, courts of appeal, district courts, and other courts authorized by this Article.” La. Const, art. V, § 22(A) provides in part: “Except as otherwise provided in this Section, all judges shall be elected.” “[0]rigi-nal jurisdiction of all civil and criminal matters” is granted to district judges in La. Const, art. V, § 16(A).

Louisiana Revised Statute 13:716 authorizes the commissioner for the Fifteenth Judicial District Court and provides, in pertinent part:

A. The commissioner of the Fifteenth Judicial District Court shall perform such duties as are assigned by the chief judge of the district in accordance with rules which shall be prescribed by the elected judges of the court, not inconsistent herewith or with the constitution and laws of the state.
B. (1) The commissioner shall have all powers of a district judge not inconsistent with the constitution and laws of the state of Louisiana and the United States, including but not limited to the power to administer oaths and affirmations, take acknowledgments, affidavits, and depositions, sign orders, act in felony and misdemeanor charges, hear preliminary motions, accept pleas in misdemeanor cases including misdemeanor cases preliminary to trial on the merits, conduct trials of misdemeanor cases, fix bail, and sign and issue search and arrest 11swarrants upon probable cause being shown and in accordance with Paragraph (2) of this Subsection.
(2) In felony cases, the commissioner shall not try and adjudicate preliminary hearings, motions for discovery, motions to suppress, motions to quash, and trials on the merits. The commissioner may be designated and assigned to hear and determine any felony pretrial matter pending before the court, not inconsistent with the provisions of this Paragraph. The commissioner shall not adjudicate felony cases.
(3) In misdemeanor cases, the commissioner may be designated to hear, determine, and adjudicate any matter pending before the court.

In O’Reilly, 785 So.2d 768, the supreme court determined that the authorization of the commissioner for the Twenty-Second Judicial District “to accept guilty pleas, preside over and render verdicts, and impose sentences in misdemeanor matters was unconstitutional because they were unquestionably final determinations which involve the exercise of adjudicatory power” because this grant of authority allowed:

[T]he commissioner to exercise a portion of judicial power restricted by La. Const, art. V, §§ 1 and 22 to elected judges of authorized courts. The power to make the ultimate determination in a case must be exercised by duly elected judges. The commissioner, an unelected official, cannot lawfully exercise the adjudicatory power of the state. Subsection (E)(2)(e) of La. R.S. 13:719, which authorizes a non-elected person to exercise adjudicatory power, is therefore unconstitutional.

O’Reilly, 785 So.2d at 774.

Previously, in Bordelon v. Louisiana Department of Corrections, 398 So.2d 1103 (La.1981), the supreme court had considered the delegation of authority to a commissioner to conduct a hearing on a motion for an injunction and submit proposed findings of fact and recommendations to the district judge for disposition of the motion and determined that this did not unconstitutionally deny the movant “access to a constitutionally sanctioned court,” reasoning:

Certain judicial power may be delegated without any abdication of the judge’s fundamental responsibility for deciding eases. Delegation of power to conduct evidentiary hearings and to prepare proposed 119fíndings of fact and recommendations for disposition based on the evidence and the arguments is not inconsistent with the constitution and laws which vest the judicial power in judges of enumerated courts, as long as the judges retain the responsibility for making ultimate decisions in the case. Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Under R.S. 13:713, as under the Federal Magistrates Act attacked in the Mathews case, the authority and responsibility to make the final determination remains with the district judge. The fundamental responsibility of the judge to make the final determination, after the commissioner conducts a hearing and submits proposed findings and recommendations, is insured by the requirement of a de novo determination of disputed findings or recommendations. Compare United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).
We conclude that this plaintiffs constitutional due process is adequately protected by the procedure outlined in R.S. 13:713, in which the trial judge makes a de novo determination of disputed findings or recommendations and may accept, reject, or modify those findings or recommendations or require additional evidence. We accordingly reject plaintiffs contentions that his constitutional rights are impaired by the designation of a commissioner to conduct a hearing and to submit proposed findings of fact and recommendations for disposition.

Id. at 1105 (footnotes omitted).

We are persuaded by the supreme court’s reasoning in these cases that the opening of court to allow the grand jury to report on its proceedings is not an exercise of adjudicatory power. It is more akin to a ministerial duty than an exercise of adjudicatory power and is further removed from the judicial process than the conduction of hearings and making of recommendations to district judges for the disposition of matters and probable cause determinations.

This assignment is without merit.

Improper Joinder

Whitney also argues that he was improperly tried jointly with Corey and Horatio in the second trial. He cites State v. Thibodeaux, 315 So.2d 769, 771 (La.1975) in which severance was held to be appropriate where one defendant’s | ^defense was directly accusatory of his co-defendant requiring the co-defendant “to stand trial before two accusers, the state and [the defendant].” That is not the situation here. None of the defendants moved for a severance in this case, and none of them presented a defense which was accusatory of a co-defendant. Additionally, Whitney, Corey, and Horatio were jointly charged in one indictment, but no one filed a motion to quash based upon misjoinder. Louisiana Code of Criminal Procedure Article 495 provides that a mis-joinder of defendants can only be urged by a motion to quash the indictment. The State argues that because no motion to quash was filed, the complaint was waived. We agree. See State v. Grainer, 02-703 (La.App. 4 Cir. 12/4/02), 834 So.2d 555, writ denied, 03-152 (La.10/10/03), 855 So.2d 325.

Whitney also argues that he was prejudiced by the introduction of a letter written by Zachary to Corey in which he wrote: “You killed that man, huh.” He urges that, even though the letter stated Corey killed Mr. Chandler, the jury probably got confused and relied on it to convict him. The letter was introduced by Whitney’s own trial counsel; accordingly, Whitney cannot complain of its use at trial.

Whitney next suggests that his trial counsel was ineffective, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It is not clear whether he is claiming ineffectiveness based upon the misjoinder issue, the introduction of the letter, or both. Due to this lack of clarity and the potential issues of trial strategy inherent in trying three co-defendant brothers facing trial simultaneously, this claim of ineffective assistance is deferred to the post-conviction process where a more complete record regarding trial counsel’s actions can be developed. State v. Bazar, 99-752 (La.App. 3 Cir. 2/2/00), 758 So.2d 844.

This assignment lacks merit.

12i Disposition

The convictions and sentences of Corey Adams and Whitney Batiste are affirmed. The lower court’s rescission of Horatio Adams’ plea agreement is reversed; his conviction and sentence for murder are vacated; and his guilty plea and sentence for second degree battery are ordered reinstated.

AFFIRMED IN PART; REVERSED IN PART; GUILTY PLEA OF HORATIO ADAMS AND SENTENCE FOR SECOND DEGREE BATTERY REINSTATED.

      . Whitney Batiste’s full name is Whitney Adams Batiste. He is Corey, Horatio, and Zachary’s brother.