text:
    Rudolph RIGGINS v. Baron KAYLO, Warden; Avoyelles Correctional Center; Richard L. Stalder, Secretary, Department of Public Safety & Corrections, and Libby Tigner, Records Analyst.
    No. 2005 CA 1900.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2006.

      Rudolph Riggins, Cottonport, Plaintiff/Appellant, In Proper Person.
    Debra A. Rutledge, Baton Rouge, Counsel for Defendants/Appellees, Richard Stalder, Baron Kaylo, and Libby Tigner.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   CARTER, C.J.

| PPlaintiffiAppellant, Rudolph Riggins, an inmate in the custody of the Louisiana Department of Public Safety and Corrections, seeks review of the district court judgment affirming the Department’s decision in AVC-2002-564 and dismissing with prejudice Riggins’s request for judicial review.

Riggins raises two issues for this court’s consideration. First, Riggins maintains the Department erred in classifying him as a third felony offender for the purpose of determining his parole eligibility. Second, Riggins contends the district court erred in refusing to consider his challenge to the constitutionality of LSA-R.S. 15:574.4 A, which was raised for the first time on appeal.

Parole Eligibility

Riggins argues his adjudication by the district court as a second felony offender under LSA-R.S. 15:529.1 is binding on the Department in determining his parole eligibility under LSA-R.S. 15:574.4. The Louisiana Supreme Court has clearly-stated that the Department is not bound by a district court’s adjudication of a defendant’s habitual offender status under LSA-R.S. 15:529.1 when the Department is making calculations to determine parole eligibility under LSA-R.S. 15:574.4. Townley v. Department of Public Safety and Corrections, 96-1940 (La.11/1/96), 681 So.2d 951, 953.

This assignment of error is without merit.

| sConstitutionality of LSA-R.S. 15:574.4 A

Riggins argues the district court erred in refusing to consider his challenge to the constitutionality of LSA-R.S. 15:574.4 A, which was presented for the first time in his Petition for Judicial Review. When reviewing the Department’s final decision, the district court is functioning as an appellate court. See Madison v. Ward, 00-2842 (La.App. 1 Cir. 7/3/02), 825 So.2d 1245, 1255. Pursuant to LSA-R.S. 15:1177 A(5) judicial review of the agency determination “shall be confined to the record” and “limited to the issues presented in the petition for review and the administrative remedy request filed at the agency level.” As such, the district court appropriately declined to consider a claim that was not addressed in the administrative proceeding. Madison, 825 So.2d at 1256.

Moreover, a proper challenge to the constitutionality of a statute should first be brought before the district court sitting as a trial court, not as an appellate court. See Lay v. Scott, 98-2615 (La.App. 1 Cir. 10/4/01), 809 So.2d 440, 441. If Riggins wishes to raise such a challenge, he should file suit in district court. See Carter v. Cain, 01-2841 (La.App. 1 Cir. 9/27/02), 828 So.2d 1226, 1228, writ denied, 02-3228 (La.1/30/04), 865 So.2d 64. His suit would then be screened pursuant to the Prison Litigation Reform Act to determine whether it is a matter appropriately raised under the district court’s original jurisdiction or whether the pleading is more in the nature of a grievance or complaint against the Department and, therefore, subject to the Corrections Administrative Remedy Procedure. See Madison, 825 So.2d at 1255-1256.

This assignment of error is without merit.

| ¿Conclusion

After a thorough review of the record, we find no error in the district court judgment. All costs of this appeal are assessed to plaintiff/appellant, Rudolph Riggins.

AFFIRMED.


source: Caselaw Access Project

author: CARTER, C.J.

license: Public Domain

text:
    Wilson NAQUIN and Gladys Naquin, Individually, and Wilson Naquin as Administrator of the Estate of His Minor Children, Wilson Naquin, Jr., Peter Naquin and Chad Naquin v. LOUISIANA POWER & LIGHT COMPANY.
    No. 2005 CA 2103.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2006.

      Charlton B. Ogden, III, John J. Zvonek, New Orleans, for Co-Defendant/Appellant, Entergy Louisiana, L.L.C., f/k/a Entergy Louisiana, Inc., f/k/a Louisiana Power & Light Company.
    Robert T. Lorio, Covington, for Co-Defendant/Appellee, The Louisiana Land & Exploration Company.
    Before: CARTER, C.J., McDONALD, and WELCH, JJ.
   CARTER, C.J.

LAt issue in this appeal is a third party demand for indemnity asserted by co-defendants in the main demand, The Louisiana Land & Exploration Company (hereafter referred to as “LL & E”) against Entergy Louisiana, L.L.C., formerly known as Entergy Louisiana, Inc. and formerly known as Louisiana Power & Light Company (hereafter referred to as “Enter-gy”). After a four-day trial, judgment was granted in favor of LL & E and against Entergy, finding that Entergy owed indemnification to LL & E pursuant to the terms and conditions of a 1973 RighWof-Way Permit Agreement. Entergy appealed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff in the main demand, Wilson Naquin, filed suit thirteen years ago, naming Entergy and LL & E as co-defendants. Plaintiff alleged in his petition that he injured his back on January 18, 1992, while operating his boat across a small cut of water located between two LL & E leased campsites on marshland property owned by LL & E near Bayou Jean Lacroix in Terrebonne Parish. According to plaintiff, his forehead struck a low-hanging electric power line that was suspended between two posts and hanging across the waterway. The power line that plaintiff allegedly struck supplied electricity to the last campsite located along the well canal. The line was constructed after LL & E’s lessee, Roger E. Braud, applied to |sEntergy for electrical service to the camp in 1984. Because the leased campsite was located 580 feet away from Entergy’s tie-in pole, Entergy gave Braud the option of either having Entergy construct the connecting facility at an estimated $8,000 cost to Braud or he could construct his own facility with cable donated by Entergy, and following Entergy specifications. Braud chose to construct the line himself, using Entergy’s cable, with the help of an electrician.

Entergy supplied the electricity flowing through the subject line, pursuant to a 1973 Right-of-Way Permit Agreement (hereafter referred to as the “Agreement”) between Entergy and LL & E. The Agreement specifically provided, in pertinent part, the following:

[LL & E], in consideration of the sum of [$10.00] cash, ... grants unto [Entergy] ..., its successors and assigns ..., the right and privilege to construct, operate and maintain an electric distribution line, including poles, wires and other appurtenances, ... upon, over and across the following described property,
A strip of land thirty (30) feet in width, measuring fifteen (15) feet on each side of the center line across the following described property:
Section 20, all lying south and west of those certain boundary lines fixed and agreed upon in those certain boundary agreements ...
Section 28, all except NE 1/4 of NE 1/4
Section 29, all
Section 32, all
Section 33, all
In Township 19 South, Range 20 East along those portions of the routes and courses which cross the aforesaid property as are shown outlined in red on the map marked Exhibit “A” attached hereto and made a part hereof.

Subject to all of the conditions and limitations hereinafter set forth:

|41. [Entergy], its successors and assigns, hereby assume the full liability and responsibility of all risks and hazards and shall be solely and directly responsible and liable for all personal injury and/or loss of life and/or damage or destruction of the property of third persons, as well as all servants and employees of [LL & E] and/or [Entergy], caused by the construction, existence, operation and maintenance of said distribution line, and shall hold [LL & E] free and harmless with respect to any and all claims for loss, death, destruction or damage arising from the construction, existence, operation and maintenance of said electric distribution line, including a reasonable attorney fee; provided, however, that [Entergy] does not agree to hold [LL & E] harmless from any liability contributed to or caused by any act of negligence of [LL & E],

Based upon the Agreement, LL & E filed a cross-claim against Entergy for indemnity. After many years of litigation, including two prior appeals and a settlement of plaintiffs underlying claim, a four-day trial was had on the indemnity issue. The trial court considered testimony and evidence as to the facts and circumstances surrounding the intent of the parties at the time the Agreement was entered into. The trial court ultimately found that the purpose of the Agreement was to allow Entergy to provide electrical services to those LL & E campsites in existence at the time of the Agreement and to those campsites constructed along the well canal in the future. The trial court also found that the subject line was a necessary appurtenance to Entergy’s electric distribution line system, because without the line, Entergy would not have been able to distribute electricity to the campsite. Therefore, the trial court held that Entergy must uphold its contractual obligation to indemnify LL & E for all damages, costs and attorney fees pursuant to the Agreement.

|fiEntergy appealed, contending that there was no reasonable basis for the trial court to determine that the electric distribution line was an appurtenance as contemplated by the Agreement, and therefore, the trial court committed manifest error in holding that Entergy owed LL & E indemnity under the Agreement. En-tergy’s main contention on appeal is that the evidence made it abundantly clear that the subject line was not constructed, owned, operated or maintained by Enter-gy, and therefore, it was not a part of the electrical distribution facilities contemplated by the Agreement. Entergy maintains that the line was a service line, constructed and maintained by its customer. Furthermore, Entergy argues that the subject line was not within the described area allowed by the Agreement, and thus, the indemnity provision did not cover this scenario, maintaining that the trial court’s reluctance to rely on the plat attached to the Agreement was clearly wrong.

STANDARD OF REVIEW

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). According to the Louisiana Supreme Court, the manifest error/clearly wrong standard is now well-established doctrine. Bonin v. Ferrellgas, Inc., 03-3024 (La.7/2/04), 877 So.2d 89, 94. The issue is not whether the trier of fact’s determination was right or wrong, but whether it was reasonable. Id., 877 So.2d at 98. In Bonin, the supreme court stated:

Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong | fior manifestly erroneous. On review, an appellate court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided the case differently. In sum: [T]he reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.... Recognizing that great deference should be accorded to the fact finder, the court of appeal and this Court have a constitutional duty to review facts. To perform its constitutional duty properly, an appellate court must determine whether the trial court’s conclusions were clearly wrong based on the evidence or clearly without eviden-tiary support. That being said, we reiterate that when two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. (Citations omitted.)

Bonin, 877 So.2d at 94-95.

LAW AND ANALYSIS

The general rules governing the interpretation of contracts apply in construing a contract of indemnity. Dean v. Griffin Crane & Steel, Inc., 05-1226 (La.App. 1 Cir. 5/5/06), 935 So.2d 186, 191. A contract of indemnity forms the law between the parties and therefore must be interpreted according to its own terms and conditions. The purpose of an indemnity agreement is to allocate the risk inherent in the activity between the parties to the contract. Liem v. Austin Power, Inc., 569 So.2d 601, 608 (La.App. 2 Cir.1990). The question to be considered in determining whether an indemnity agreement is enforceable is “whether the risk that resulted in the injury was one contemplated by the parties to the contract.” Perkins v. Rubicon, Inc., 563 So.2d 258, 259 (La.1990).

^Interpretation of a contract is the determination of the common intent of the parties. LSA-C.C. art. 2045. Courts are bound to give legal effect to all contracts, according to the true intent of the parties. Belle Pass Terminal, Inc. v. Jo-lin, Inc., 92-1544 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, 479, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046. In instances where the mutual intention of the parties has not been fairly explicit, the court may consider all pertinent facts and circumstances, including the party’s own conclusions rather than adhere to a forced meaning of the terms used in the contract. Belle Pass Terminal, Inc., 634 So.2d at 479-480.

The words of a contract must be given their generally prevailing meaning. LSA-C.C. art. 2047. Intent is to be determined in accordance with the plain, ordinary, and popular sense of the language used, and by construing the entirety of the document on a practical, reasonable, and fair basis. Belle Pass Terminal, Inc., 634 So.2d at 480. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. LSA-C.C. art. 2048. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. LSA-C.C. art. 2050. In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished the text. LSA-C.C. art. 2056. One of the best ways to determine what the parties intended in a contract is the method in which the contract is performed, particularly if done consistently over and over again for a period of many years. Belle | ¡Pass Terminal, Inc., 634 So.2d at 480. In other words, intent is an issue of fact that is to be inferred from all of the surrounding circumstances. Id.

In the instant case, the trial court handed down well-considered reasons for judgment in holding that the right-of-way privilege enjoyed by Entergy across LL & E’s property (for almost twenty years at the time of plaintiffs alleged injury) was not solely limited to the plat attached to the Agreement. The trial court found that the purpose of the Agreement was to allow Entergy to provide electrical services to campsites leased by LL & E to various parties that were in existence at the time the Agreement was entered into, as well as to provide electrical service to those campsites that would be constructed in the future. As such, the trial court found that the subject line was a “necessary appurtenance” to the Entergy distribution system and the indemnity provision in the Agreement applied, holding that Entergy owed indemnification to LL & E for all damages, costs, and attorneys fees pursuant to the terms and conditions of the Agreement.

After reviewing this voluminous record and carefully considering the evidence and testimony regarding the original intent of the Agreement, we fully agree with the trial court’s resolution of the indemnity issue, and adopt in part the trial court’s excellent reasons for judgment as our own, as follows:

The [Agreement] states that Entergy is responsible for all personal injury and damages caused by the construction, existence, operation, and maintenance of the electric distribution line. However the Agreement does not define the term “electric distribution line.” Therefore, this Court can and must consider evidence as the facts and circumstances at the time the contract was made.
Testimony was given by Jefferson De-Blieux, TV, a surveyor for LL & E, who stated that, sometime after 1973, additional camps were built and power lines were added to |asupply the new campsites with electricity. Mr. DeBlieux also indicated that the new campsites are not shown on the map attached to the 1973 Agreement. Mr. DeBlieux testified that, although LL & E does not have records to indicate that Entergy contacted LL & E to seek permission to install the additional power lines to the new campsites, LL & E knew of the new construction and did not object to it.
Testimony was also given by Enter-gy’s expert Gerard Hergert, who also testified that Entergy had extended its own lines 520’ past the original termination point, and found no record that Entergy had requested permission from LL & E to do so.- Mr. Hergert further testified that the line from the pole to the camp is called a “service drop” which he referred to as an appurtenance to the distribution line and that it was expected that services [sic] lines were to be added as appurtenances to that distribution line.
The next witness to testify was Hermit Coulon, Jr., manager of the LL & E’s Houma District Office and lease administrator, who confirmed that the accident occurred in Section 29 of LL & E’s property. It was Mr. Coulon’s understanding that the term “distribution line” as contained in the Agreement was a line supplying electricity to the customer’s camp. Mr. Coulon further testified that when he executes a right of way on behalf of LL & E, it is considered giving Entergy the authorization to construct lines, appurtenances or whatever is involved in the project, and also that Entergy would hold LL & E harmless from any claims that might arise as a result of the existence of Entergy’s facilities on LL & E’s property. Mr. Coulon also gave his definition of “assigns” as used in the Agreement as any-
one Entergy would designate to perform installation activity, whether it be a contractor or a customer. Mr. Coulon confirmed that LL & E was aware that power lines were being extended to connect the new campsites being constructed and that the new lines were considered part of the initial right of way [Ajgreement, including indemnities.
Testimony was also heard from Frederick Brooks, an electrical engineer on behalf of Entergy. Mr. Brooks testified that the lines that run from the transformer to the customer’s point of delivery is called a service drop or a service line, which he considers part of the distribution system. Mr. Brooks testified that ownership of electricity transfers from the utility company to the customer at the point of delivery. However, Mr. Brooks also testified that he could find no publication which defined the term distribution line.
The deposition of Thomas Caswell Brown, former Superintendent for En-tergy, was admitted as evidence for this |10Court’s consideration. Mr. Brown testified that the term “electrical distribution” used in the Agreement was obtained from Entergy’s counsel, and therefore he could not testify as to En-tergy’s intent of that term.
The Court notes that Mr. Hergert contradicted his own testimony on more than one issue. It was by Mr. Hergert’s own admission that the service line providing electricity by Entergy to Mr. Braud’s camp was an appurtenance to the distribution line.
The Court also notes that the cable used by Mr. Braud was supplied by Entergy at no cost to Mr. Braud.
After considering all of the pleadings, evidence, and testimony, this Court finds that Entergy believed that its right of way privilege was not limited to the plat attached to the Agreement. This Court also finds that the purpose of the Agreement was to allow Entergy to provide electrical services to those campsites in existence at the time of the 1978 Right of Way Agreement, as well as to provide electrical service to those campsites that would be constructed in the future.
Entergy offered to construct the Braud power line for a fee or, in the alternative, Mr. Braud could perform his own installation and could do so without obtaining permission from LL & E. En-tergy would not have offered and provided such services to Mr. Braud and other additional campsites unless it believed that it had the authority to do so under the 1973 Right of Way Permit. If En-tergy believed that it had such authority under the Agreement, then all of the provisions of the Agreement must be applicable, including the indemnity provision. Further, the property owned by LL & E which is listed in the Agreement indicates all of Section 29. The accident at issue occurred in Section 29, and therefore the damage and injuries sustained by Mr. Naquin fall within the parameters of the Agreement.
Therefore, this Court finds that the subject line was a necessary appurtenance to the Entergy distribution line system. Without the involved line, Mr. Braud would not have been able to receive the electricity distributed by En-tergy.
This Court finds that the subject 580’ power line was an appurtenance of the “electrical distribution line” as defined in the Agreement. -Therefore, Entergy must uphold its contractual obligation to indemnify LL & E for all damages, costs, and attorneys fees, pursuant to the terms and conditions of the 1973 Right of Way Permit.

1,/We also offer the following additional comments and reasons in support of the trial court’s judgment. Entergy’s own expert, Mr. Hergert, clearly testified that the subject line was an “appurtenance” to the distribution line. Appurtenances to the electric distribution line were included in the language of the Agreement. Mr. Her-gert testified that it was understood that service lines would be added off of the distribution line in order to provide electricity to the customer. The trial court was not unreasonable in relying on Mr. Hergert’s testimony to define the subject line as an appurtenance to the distribution line.

We find it very reasonable from the point of view of both parties- to the Agreement to expect or anticipate that service lines would be necessary in order to completely provide electrical service to the leased campsites. Certainly, any line that distributed or provided electricity to a campsite.would have been reasonably contemplated by LL & E and Entergy as being covered by the Agreement. Providing electrical service to the campsites was, after all, the intended purpose of the Agreement. The other expert, Mr. Brooks, basically corroborated Mr. Her-gert’s testimony when he testified that the term “electric distribution line” would include a service line. Mr. Brooks further opined that the reason for the existence of an electric distribution line is to provide service to customers off the line, and additional service lines are expected without the necessity of additional right-of-way permits. Based upon the two expert witnesses’ testimony, we conclude there was no manifest error in the trial court’s factual finding that the subject line was an appurtenance to the electric distribution line. 1 ^Furthermore, this interpretation best conforms to the object of the contract. See LSA-C.C. art. 2048.

The evidence presented at trial also established unequivocally that Enter-gy was the only entity that had permission to distribute electricity across the subject LL & E property. Entergy never questioned whether it had the right to extend electrical services to any of the subsequently-built campsites and Entergy never sought additional permission to extend electrical services to the other campsites. The evidence clearly revealed that all of the extensions were within the boundary of Section 29 and Section 28 as contemplated by the property description in the Agreement. Thus, the trial court reasonably concluded that Entergy believed that the right-of-way privilege was not limited to the plat attached to the Agreement, which depicted the original route of the distribution line. The trial court correctly considered the method in which Entergy and LL & E carried out the purpose of the Agreement (to supply electricity to the leased campsites) consistently over and over again for a twenty-year period and beyond. Intent behind a contract is an issue of fact that may be inferred from all of the surrounding circumstances, including the conduct of the parties before and after the formation of the contract. See Amoco Production Co. v. Fina Oil & Chemical Co., 95-1185 (La.App. 1 Cir. 2/23/96), 670 So.2d 502, 511, unit denied, 96-1024 (La.5/31/96), 673 So.2d 1037. This factual finding of the trial court was pertinent to the interpretation of the Agreement. We find no manifest error in the trial court’s factual findings or its conclusion.

For the above and foregoing reasons, the judgment of the trial court is affirmed at Entergy’s cost.

AFFIRMED.

      . Plaintiff and his wife, Gladys Naquin, brought suit individually, and plaintiff brought suit as administrator of the estate of his minor children, Wilson Naquin, Jr., Peter Naquin, and Chad Naquin. However, throughout this opinion we will refer to Mr. Naquin individually as plaintiff.

      . LL & E is an oil and gas company that owns and maintains the subject property for its oil and gas operations as part of a 37-acre square tract of land. LL & E leased several recreational fishing and hunting campsites along a well canal located on the subject property.

      . Braud subsequently sold the camp to Russell Baudoin in 1987. Baudoin continued to lease the campsite from LL & E and to purchase electrical service from Entergy for the camp.

      . Naquin v. Louisiana Power & Light Co., 98-2270 (La.App. 1 Cir. 3/31/00), 768 So.2d 605, writ denied, 00-1741 (La.9/15/00), 769 So.2d 546; Naquin v. Louisiana Power & Light Co.,
        03-0220 (La.App. 1 Cir. 11/7/03), 857 So.2d 36 (unpublished).

      . For the lead cases defining the nature of a powerline servitude as the right to transmit electric power to customers, see Hanks v. Gulf States Utilities Co., 253 La. 946, 221 So.2d 249, 251 (1969); Broomfield v. Louisiana Power & Light Co., 25, 112 (La.App. 2 Cir. 9/22/93), 623 So.2d 1376, 1378-1379.


author: GAIDRY, J.

text:
    In the Matter of the SUCCESSION OF NARCISSA WALTERS.
    No. 2005 CA 2252.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2006.

      E. Wade Shows, Sheri M. Morris, Baton Rouge, Counsel for PlaintifflAppellee Testamentary Executor, Eugene R. Groves.
    Charles S. McCowan, Jr., Carey J. Messina, Lana D. Crump, G. Trippe Hawthorne, Baton Rouge, Counsel for Defendant/Appellant James P. Woods.
    Before: CARTER, C.J., GUIDRY and GAIDRY, JJ.
   GAIDRY, J.

|?This suit involves a dispute over a will in which the testator named her attorney, who was also her second cousin, as executor and residuary legatee and also made testamentary legacies to him and his three children. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Narcissa Walters executed a Last Will and Testament on November 7, 1994. In this will, she made a number of testamentary legacies, including legacies to Eugene R. Groves and his three children. She named Mr. Groves, who was also her attorney and second cousin, as testamentary executor and residuary legatee and asked him to “consider distributing certain assets in accordance with our discussions.”

After Ms. Walters’s death on March 29, 2000, Mr. Groves filed a petition to have the 1994 will filed and executed. Mr. Groves was confirmed as testamentary executor, without bond. After all particular legacies and inheritance taxes were paid, a judgment of possession was signed by the court on July 19, 2000, ordering payment of $34,500.00 to Mr. Groves for his services as executor, recognizing Mr. Groves as the general and universal legatee of Ms. Walters, and sending Mr. Groves into possession of all remaining property of Ms. Walters’s estate.

On March 23, 2005, Mr. Groves filed a petition to reopen the succession because one of the legatees, Lucia Wood, had neither deposited the check for her legacy, nor executed the receipt for the legacy, prior to her death. Ms. Wood apparently believed that the legacies to Mr. Groves and his children were null and that she was entitled to inherit the property bequeathed in those legacies under the laws of intestacy. The succession was reopened, and Mr. Groves was reappointed to serve as testamentary ^executor, without bond. Mr. Groves then filed a rule to show cause why the testamentary legacies made to him and his children should not be declared valid. James Wood, Lucia Wood’s son, was substituted for his deceased mother in the proceeding. At the hearing on the rule, the parties introduced Mr. Groves’s deposition and a stipulation of facts in lieu of live testimony. After considering the evidence and oral arguments by counsel, the trial court ruled that the bequests were valid, and this appeal followed.

Mr. Wood alleges on appeal that the trial court erred in failing to declare Ms. Walters’s bequests to Eugene Groves and his children null and void. Mr. Wood argues that the bequests should have been declared null and void on the grounds that the preparation of the will by Mr. Groves or a member of his firm created a conflict of interest in violation of the Louisiana Rules of Professional Conduct and because Mr. Groves’s status as attorney-in-fact for Ms. Walters, drafter of her will (actual or imputed), executor of the will, attorney for the succession, and residual legatee of her estate, created a conflict of interest for Mr. Groves in light of the testamentary provision requesting that Mr. Groves consider distributing certain assets not named in the will out of his residual legacy. Finally, Mr. Wood alleges that the trial court erred in failing to admit into evidence certain proffered exhibits as impeachment evidence to Mr. Groves’s sworn testimony. Mr. Groves answered the appeal, requesting damages for Mr. Woods’s allegedly frivolous appeal.

DISCUSSION

At the time Ms. Walters’s will was drafted, the Louisiana Rules of Professional Conduct, Rule 1.8, governing conflicts of interest and prohibited transactions, provided that an attorney “shall not prepare an | ¿instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.” Rule 1.8(c) (emphasis added). Additionally, in a situation where an attorney was prohibited by Rule 1.8(c) from representing a client, former Rule 1.10(a) prohibited any other attorney in his firm from knowingly representing that client.

The issue in this case, then, is whether Ms. Walters (the client) is “related” to Mr. Groves and his children (the donees) for purposes of Rule 1.8(c). If they are not “related,” then this transaction is prohibited due to a conflict of interest, regardless of whether it was Mr. Groves or a member of his firm who assisted Ms. Walters in the preparation of her will. “Related” is not defined in the statute as it refers to the relationship between the client and the donee. Mr. Wood argues that we should limit the definition of “related” for purposes of this exception to “parent, child, sibling, or spouse” because anyone is “related” if you trace their ancestry far enough back, and so failing to limit it in this way would lead to absurd consequences.

The trial court held that Mr. Groves was “related” to Ms. Walters for purposes of Rule 1.8(c). In making this decision, the trial court consulted numerous sources and ultimately relied on Black’s Law Dictionary and the Webster’s Dictionary. Although both sides offered authority supporting their definition of the term, the court did not find the authority to be particularly persuasive or on point. Black’s Law Dictionary’s, definition of “relative” includes anyone connected to another by blood or affinity. Black’s Law Dictionary 1158 (5th ed.1979). Webster’s II New College Dictionary, 935 (1995) defines “related” as “[cjonnected by kinship, | smarriage, or common origin.” The trial court also declined Mr. Woods’s request to apply the 2004 amendment to Rule 1.8(c) retroactively, stating that he believed this to be a substantive, not merely interpretive, amendment. Since Mr. Groves was related to Ms. Walters, the court found that there was no conflict of interest and the testamentary bequests were valid.

We agree with the trial court’s interpretation. Since there was no definition contained in the statute at the time the will was drafted, the logical interpretation to be applied to Rule 1.8(c) is that the exception includes those “related” by blood or marriage. Mr. Groves’s relationship to Ms. Walters as a second cousin qualifies under this definition.

Mr. Woods also argues that Mr. Groves violated Rule 1.7(b) of the Rules of Professional Conduct, which provided in part:

A lawyer shall not represent a client if the representation of that client may be materially limited by ... the lawyer’s own interests, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) The client consents after consultation.

Mr. Woods claims that Mr. Groves (or a member of his firm) should not have represented Ms. Walters in the preparation of her will because that representation was materially limited by Mr. Groves’s own interests. Specifically, Mr. Woods claimed that the provision of the will requesting that Mr. Groves, as residuary legatee, consider distributing certain unnamed assets in accordance with his discussions with Ms. Walters created a conflict of interest because those distributions would come out of his legacy. The trial court did not find this provision sufficient to create a conflict of interest so as to violate Rule 1.7(b) or invalidate the testament. While the trial court acknowledged, and we agree, that it would have been preferable for Mr. Groves to have gotten outside counsel to prepare the will, Mr. Groves’s |fideposition testimony reveals that he made every effort to convince Ms. Walters to obtain outside counsel, and she refused to do so. Although Ms. Walters eventually agreed to allow another lawyer from Mr. Groves’s firm to prepare the will, she would not even allow him into her home so that she could sign the will unless he was accompanied by Mr. Groves. We agree with the trial court that naming Mr. Groves as residuary legatee, while asking him to consider making certain disbursements out of his legacy, does not create such a conflict of interest as to materially limit him in his representation of Ms. Walters.

Finally, Mr. Woods alleges that the trial court erred in refusing to admit certain exhibits as impeachment evidence to Mr. Groves’s sworn testimony. Prior to the hearing on the rule to show cause in this case, the parties agreed to offer Mr. Groves’s deposition and a stipulation of facts in lieu of live testimony. At the hearing, after these two exhibits were admitted into evidence, Mr. Woods’s counsel attempted to offer additional exhibits in an effort to impeach Mr. Groves’s deposition testimony. The trial court found that these exhibits were not relevant and refused to allow these exhibits to be admitted into evidence, and Mr. Woods’s counsel made a proffer.

Generally, all relevant evidence is admissible. La. C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to a determination of the action more or less probable than it would be without the evidence. La. C.E. art. 401. Whether evidence is relevant is within the discretion of the trial judge, and his ruling will not be disturbed on appeal in the absence of a clear abuse of his discretion. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, 476-477, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094. The evidence proffered consisted of a letter from Mr. Groves’s files and several suit records that were unrelated to this case. None of these had any relevance to the definition of “related” under Rule 1.8(c) or whether Mr. Groves’s representation of Ms. Walters was materially limited by his own interests. The trial court did not abuse its discretion in excluding these documents.

CONCLUSION

The trial court judgment appealed from is affirmed. Costs of this appeal are assessed to James Wood.

AFFIRMED.

GUIDRY, J., concurs.

      . Mr. Groves later dismissed his answer to the appeal seeking damages for a frivolous appeal.

      . Rule 1.8(c) was later amended to define “related” as: “a spouse, child, grandchild, parent, or grandparent.”


author: KUHN, J.

text:
    In re: ARK-LA-TEX ANTIQUE AND CLASSIC VEHICLES, INC. and Ark-La-Tex Antique and Classic Vehicles Enterprises, L.L.C.
    No. 2005 CA 1931.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 15, 2006.

      Billy R. Pesnell, Shreveport, Counsel for Applicants Ark-La-Tex Antique and Classic Vehicles, Inc. and Ark-La-Tex Antiques and Classic Vehicles Enterprises, L.L.C.
    R. Gray Sexton, Kathleen M. Allen, Baton Rouge, Counsel for Respondent Louisiana Board of Ethics.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   KUHN, J.

| ⅞Ark-La-Tex Antique and Classic Vehicles, Inc. (the Museum) and Ark-La-Tex Antiques and Classic Vehicles Enterprises, L.L.C. (Enterprises), appeal the decision of the Louisiana Board of Ethics (the Board), which concluded that each had violated provisions of the Code of Governmental Ethics, for which civil penalties were imposed. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Roy H. Miller has been employed as the Director of Airports for the City of Shreveport since 1989. The City of Shreveport and the Shreveport Airport Authority entered into a lease, effective October 23, 2000, with the Shreveport Golf Company, which planned to construct a golf course on airport property. Shreveport Golf Company is a Texas general partnership consisting of two general partners: Golf Management Company of Louisiana, L.L.C., represented on the lease by FFFC Golf Acquisitions, L.L.C., which is the sole member of Golf Management Company of Louisiana; and HCS-Golf Course, L.L.C., represented on the lease by Hollywood Casino Shreveport, a Louisiana general partnership and the sole member of HCS-Golf Course, L.L.C., which in turn appeared through HCS I, Inc., the managing general partner of Hollywood Casino Shreveport (Hollywood Casino).

Roy Miller was married to Francene Miller, who was the sole incorporator of the Museum, a nonprofit corporation that operates a car museum. Mrs. Miller acquired an historic building in downtown Shreveport and rented a portion of it to the Museum. The Museum generates income through a gift shop, donations, special events, admission fees, grants, and the hotel-motel tax. Mrs. Miller ^subsequently formed Enterprises as a limited liability company to provide her with personal financial protection. Enterprises consists of two members: Mr. and Mrs. Miller. Mrs. Miller transferred to Enterprises the ownership of the building housing the Museum, and the Museum, thus, became obligated to pay rent to Enterprises. In 1995, Enterprises became obligated to pay a monthly note on a mortgage that secured the property. It is undisputed that the Museum did not make sufficient revenue to regularly pay its monthly rental obligation to Enterprises and that Mr. and Mrs. Miller paid the mortgage note from their monthly savings when Enterprises did not have sufficient funds.

On March 1, 2001, Hollywood Casino entered into a five-year lease with Enterprises for space to operate a parking garage in the basement of the building housing the Museum for the monthly sum of $4,000. And on August 15, 2001, Hollywood Casino paid the Museum an additional $2,250 to rent space at the museum to hold a three-day gin rummy tournament.

Based on complaints levied by George H. Mills, an attorney representing a client who had dealings with the airport, an investigation was conducted by the Board. Formal charges were then filed against Mr. Miller, the Museum, and Enterprises.

After testimony and documentary evidence were adduced at a public hearing, the Board concluded that both the Museum and Enterprises had violated the provisions of the Code of Governmental Ethics (“the Code”), La. R.S. 42:1101-1170 and imposed civil penalties. This appeal by the Museum and Enterprises follows.

|4II. DUE PROCESS

Appellants initially allege a violation of their due process rights. They urge that the record reflects that the Board failed to consider the draft opinion they submitted. On our motion, we ordered a supplementation of the record, including the transcript of the public hearing held on June 2, 2005, and the exhibits under consideration.

At the hearing, the Board addressed the proposed opinions submitted by the appellants and Mr. Miller as well as one drafted by a Board representative with no connection to either the investigation or prosecution of the case. At the conclusion, the Board adopted several non-substantive modifications of the draft prepared by its representative. Based on our review of the record, particularly those items transmitted pursuant to our order of supplementation of the record, appellants err in suggesting that the Board excluded consideration of their proposed drafts of opinions. We find no merit in appellants’ contention that the approach undertaken by the Board was biased and in derogation of their due process rights.

| .III. JUDICIAL REVIEW

A. Standard of Review

Pursuant to La. R.S. 42:1143, all proceedings conducted by the Board shall be subject to and in accordance with the Louisiana Administrative Procedure Act, La. R.S. 49:950-972. Thus, judicial review of the Board’s decision is available to appellants. The Administrative Procedure Act specifies that judicial review shall be confined to the record, as developed in the administrative proceedings. La. ■ R.S. 49:964(F). The reviewing court may reverse or modify the agency decision if substantial rights of the appellant are prejudiced because the administrative findings, inferences, conclusions, dr decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary, capricious, or an abuse of discretion; or (6) not supported and sustainable by a preponderance of evidence as determined by the reviewing court. La. R.S. 49:964(G). On legal issues, the reviewing court gives no special weight to the findings of the administrative tribunal, but conducts a de novo review of questions of law and renders judgment on the record. In re McJunkins, 99-0326, p. 5 (La.App. 1st Cir.3/31/00), 794 So.2d 845, 848.

B. Violations of the Code

La. R.S. 42:1111(0(2), pertaining to payments for nonpublic service, provides in pertinent part:

(2) No public servant and no legal entity in which the public servant exercises control or owns an interest in excess of twenty-five percent, shall receive any thing of economic value for or in consideration of services rendered, or to be rendered, to or for any person during his public service unless such services are: ...
L(d) Neither performed for nor compensated by any person from whom such public servant would be prohibited by R.S. 42:1115(A)(1) ... from receiving a gift.

La. R.S. 42:1115, pertaining to gifts, provides in pertinent part:

A. No public servant shall solicit or accept, directly or indirectly, any thing of economic value as a gift or gratuity from any person or from any officer, director, agent, or employee of such person, if such public servant knows or reasonably should know that such person:
(1) Has or is seeking to obtain contractual or other business or financial relationships with the public servant’s agency ....

The Board determined that the Museum had violated Sections 1111(C)(2)(d) and 1115 by its receipt of $2,250 from Hollywood Casino-Shreveport for the lease of space for the gin rummy tournament at a time when Hollywood Casino-Shreveport was a party to or had an interest in the development of a golf course with the City of Shreveport and the Shreveport Airport Authority and while Mr. Miller served as the Shreveport Airport Director and exercised control over the Museum. A civil penalty of $2,250 was imposed against the Museum. Insofar as Enterprises, the Board concluded that it violated Sections 1111(C)(2)(d) and 1115 of the Code by the company’s receipt of $4,000 a month, commencing in April 2001, from Hollywood Casino-Shreveport for the lease of the parking garage at a time when Hollywood Casino-Shreveport was a party to or had an interest in the development of the golf course and while Mr. Miller was employed as the City of Shreveport’s Airport Director and owned more that 25% of or exercised control over Enterprises. A civil penalty of $5,000 was imposed against Enterprises.

|7B. Propriety of the Board’s Factual Conclusions

Urging that it is “impossible to discern the basis of the Board’s decision” on its findings that Mr. Miller “exercised control” over the Museum or that he “owned more than 25% of and/or exercised control over” Enterprises, appellants assert that the Board has failed to accompany these findings of fact with a concise and explicit statement of the underlying facts as required by La. R.S. 49:958.

La. R.S. 49:958 provides:

A final decision or order adverse to a party in an adjudication proceeding shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding. Parties shall be notified either personally or by mail of any decision or order. Upon request, a copy of the decision or order shall be delivered or mailed forthwith to each party and to his attorney of record. The parties by written stipulation may waive, and the agency in the event there is no contest may eliminate, compliance with this Section.

While the Board must articulate the basis for its decision, where the findings and reasons therefor are necessarily implicit in the record and the administrative determination is supported and sustainable by a preponderance of the evidence, the administrative decision is not invalid merely because the Board failed to explicitly articulate that which is self evident. Summers v. Sutton, 428 So.2d 1121, 1128 (La.App. 1st Cir.1988) (relying on Baton Rouge Water Works v. La. Pub. Serv. Comm’n, 342 So.2d 609 (La.1977); Brown v. Sutton, 356 So.2d 965 (La.1978); Giallanza v. Louisiana Pub. Serv. Comm’n, 412 So.2d 1369 (La.1982)).

|sBy failing to expressly state the factual findings in support of its conclusions that Mr. Miller exercised control over the Museum or that he owned more than 25% of or exercised control over Enterprises, the Board’s decision does not comply with La. R.S. 49:958. But as directed by the jurisprudence in our judicial review of this case, we examine both the explicit and the implicit factual findings of the Board to determine whether its conclusions that Mr. Miller exercised control over the Museum and that he owned more than 25% of or exercised control over Enterprises comply with La. R.S. 49:964(G).

C. Appellants’ Conduct

1. The Museum

The Board concluded that the Museum violated La. R.S. 42:llll(C)(2)(d) when it received $2,250 for a gin rummy tournament while Mr. Miller was employed as the Shreveport Airport Director and when the City of Shreveport and its airport authority were negotiating and administering a lease for the development of a golf course in which Hollywood Casino-Shreveport had an interest. The Museum’s appellate complaint is that the evidence fails to establish that Mr. Miller exercised control over the Museum.

Mr. Miller testified that he co-founded the Museum, working alongside his wife. He admitted that during the negotiations and administration of the lease, he served on the Museum’s board of directors and was its treasurer.

Among the multiple policy objectives of the Code are impartiality, fairness and equality of treatment toward those dealing with government; assurance that decisions of public importance will not be influenced by private considerations; maintenance of public confidence in government (wherein enters the matter of | pappearances); and prevention of use of public office for private gain. La. R.S. 42:1101(B). Glazer v. Com’n on Ethics for Public Employees, 431 So.2d 752, 755-56 (La.1983). The primary objective of the Code is to prevent public officers and employees from becoming involved in conflicts of interests. A conflict of interest is a situation which would require an official to serve two masters, presenting a potential, rather than an actuality, of wrongdoing. The wrongdoing does not have to occur in order for a prohibited conflict to exist. A public official may have done no wrong in the ordinary sense of the word, but a conflict of interest may put him in danger of doing wrong. The Code is aimed at avoiding even this danger. For this purpose, the Code identifies certain types of conflicts of interests and prohibits conduct by public officials which would bring these conflicts into being. Additionally, the Code empowers the Board to determine when a conflict of interests exists and to impose certain sanctions. Glazer, 431 So.2d at 755-56.

The prohibited conflict of interest involved in this case is one in which the public servant receives compensation from private persons doing business with his public agency for outside services rendered by the servant to that person. The danger in the conflict, of course, is that the public servant’s official dealings with the person may be unduly influenced contrary to the public interest by the public servant’s receipt of outside compensation from the same person. The danger exists even if the public servant actually performs bona fide services for his outside income. Accordingly, the Code specifically prohibits any public servant from receiving anything of economic value for or in consideration of services rendered to or for any person if such public servant knows or reasonably should know that|insuch person has or is seeking to obtain contractual or other business or financial relationships with the public servant’s agency. La. R.S. 42:1111(0(2); 42:1115(A); Glazer, 431 So.2d at 755-56.

With these precepts in mind, we find no error in the Board’s conclusion that as a member of the Museum’s board of directors and its treasurer, Mr. Miller possessed the requisite power to exercise control over the nonprofit corporation. That Mr. Miller did not actually utilize his position to exercise control over the Museum is not relevant since a wrongdoing does not have to occur in order for a prohibited conflict to exist. Because Mr. Miller was both a director of the Museum and the Director of the Shreveport Airports at a time when the lease for construction of the golf course was administered by him on behalf of his employer and while the financially-strapped nonprofit corporation received $2,250 for the three-day gin rummy tournament from Hollywood Casino-Shreveport, Mr. Miller’s official dealings with Hollywood'Casino-Shreveport created the potential for him to be unduly influenced, contrary to the public interest, by his receipt of private compensation from the golf-construction lease partner. Thus, while the evidence may not establish any actual wrongdoing, it does support a finding that as a director and treasurer of the Museum, Mr. Miller permitted himself to be in a position in which undue influence contrary to the public interest could have occurred. The explicit and implicit factual findings of the Board are sufficient to support the conclusion that the Museum violated Section 1111(G)(2)(d) of the Code.

|¶12. Enterprises

The Board concluded that Enterprises violated La. R.S. 42:llll(C)(2)(d) when the company entered into the lease for parking space with Hollywood Casino-Shreveport while Mr. Miller worked as the Director of Airports and Hollywood Casino-Shreveport was a general partner in the lease to construct the golf course on airport property. On appeal, Enterprises maintains that the evidence fails to establish that Mr. Miller owned more than 25% of Enterprises or exercised control over the limited liability corporation.

The testimonial and documentary evidence established that the membership of Enterprises consisted solely of Mr. and Mrs. Miller during the time Hollywood Casino-Shreveport was involved with both the golf course lease and the parking lot lease with Enterprises. Although Mrs. Miller testified that she believed that she owned approximately 90% of Enterprises based on her monetary contributions to the limited liability company, she admitted no written operating agreement existed which altered the powers of the membership set forth in the Articles of Organization, which gave each member the authority to alienate, lease, or encumber the immovable property of Enterprises. The record also demonstrates that during the time that Hollywood Casino-Shreveport had both the golf course and the parking-space leases, Mr. Miller had the right to and did deposit and execute checks on behalf of Enterprises. This evidence along with the explicit factual findings of the Board supports the conclusion that Mr. Miller owned more | ^than 25% of Enterprises or exercised control over Enterprises and, as such, that the limited liability company violated La. R.S. 42:llll(C)(2)(d). As with his relationship with the Museum, that Mr. Miller did not actually utilize his position to exercise control over Enterprises is irrelevant since a wrongdoing does not have to occur in order for a prohibited conflict to exist. Because Mr. Miller was both a member of Enterprises and the Director of the Shreveport Airports at a time when the lease for the golf course was administered by him on behalf of his employer and while Enterprises received $4,000 a month for the rental of parking space to Hollywood Casino-Shreveport, Mr. Miller permitted himself to be in a position in which, contrary to the public interest, the potential for undue influence could have occurred.

For these reasons, we find no error in the Board’s conclusions that the Museum and Enterprises violated, the Code of Governmental Ethics.

III. DECREE

Finding no prejudice to appellants’ substantial rights, we affirm the opinion of the Louisiana Board of Ethics. Appeal costs are assessed to Ark-La-Tex Antique and Classic Vehicles, Inc. and Ark-La-Tex Antique and Classic Vehicles Enterprises, L.L.C.

AFFIRMED. MOTIONS TO SUPPLEMENT DENIED AS MOOT.

      . Appellants filed a motion with this court asking to supplement the record with various letters and proposed opinions submitted by appellants and Mr. Miller. The Board also filed a similar motion, requesting supplementation of the record with the transcript of the June 2, 2005 public hearing. Both motions were referred to the merits. See In Re: Ark-La-Tex Antique and Classic Vehicles Enterprises, L.L.C., 2005-1931 (La.App. 1st Cir.1/09/06) (an unpublished opinion); In Re: Ark-La-Tex Antique and Classic Vehicles Entetprises, L.L.C., 2005-1931 (La.App. 1st Cir.1/26/06). Because we have ordered supplementation of the record on our own motion, both motions to supplement are rendered moot and, therefore, denied.

      . A change to the Board's signature page to reflect the expiration of the terms of two of the members was also adopted.

      . See La. R.S. 12:1323 (stating that the profits and losses of a limited liability company shall be allocated among the members and among classes of members in the manner provided in a written operating agreement, and that to the extent the operating agreement does not so provide in writing, profits and losses shall be allocated equally among the members).


author: DOWNING, J.

text:
    Deirdre D. SCOTT v. AUTOZONE # 0208.
    No. 2005 CA 1948.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 2006.
    Rehearing Denied Nov. 8, 2006.
    Paul R. Matzen, Baton Rouge, Counsel for Appellee Deirdre Scott.
    Robert B. Purser, Opelousas, Counsel for Appellant Autozone.
    Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

The employer appeals an Office of Workers’ Compensation (OWC) judgment that ruled in favor of the employee/claimant. The OWC found that the claimant was injured by an accident in the course and scope of her employment and that her current disability was a result of the related employment accident. The OWC awarded the claimant Temporary Total Disability benefits, Supplemental Earnings Benefits, and all medical expenses and vocational rehabilitation. It also awarded penalties for the employer’s failure to pay indemnity and medical benefits timely and for its failure to order vocational rehabilitation. The claimant was also awarded attorney fees, discovery expenses, expert witness fees, legal interest and courts costs.

The OWC found that the claimant was a credible witness and had been a reliable employee up until the time she was dismissed. After a thorough review of the record we agree with the OWC.

As the issue involves no more than an application of well-settled rules to a recurring fact situation and since the OWC adequately explained its reason for decision in its oral reasons, we affirm in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.2 A(4) and (5). The cost of this appeal is assessed to the employer/appellant.

AFFIRMED


author: GUIDRY, J.

text:
    STATE of Louisiana v. Carles JOHNSON.
    No. 2006 KA 0467.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 2006.

      Doug Moreau, District Attorney, Kory J. Tauzin, Assistant District Attorney, Baton Rouge, Counsel for Appellee State of Louisiana.
    Prentice L. White, Baton Rouge, Counsel for Defendant/ Appellant Carles Johnson.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

| ¡¿Defendant, Carles Johnson, was charged by bill of information with one count of attempted forcible rape, a violation of La. R.S. 14:27 and 42.1. Defendant initially entered a plea of not guilty, but defendant eventually pled guilty to an amended bill of information charging him with one count of simple burglary, a violation of La. R.S. 14:62. The trial court subsequently sentenced defendant to a term of twelve years at hard labor.

Defendant appeals, arguing the trial court erred in denying his motion to withdraw his guilty plea. For the following reasons, we affirm.

FACTS

On July 4, 2003, K.M. reported that a person entered his apartment and bedroom where he was sleeping. K.M. stated that he was held down, and the person touched his chest and genitals with his hands and mouth. K.M. subsequently broke free from this person and locked himself in the bathroom until the person left. When K.M. exited the bathroom, he told his brother what happened. The police were contacted, and KM.’s brother identified defendant as the person who entered KM.’s bedroom.

Although defendant disagreed with the factual recitation of the offense, he entered a “best interest” plea of guilty to the charge of simple burglary. During the trial court’s examination of defendant, the following exchange occurred:

[THE COURT]:
... Explain to me what you believe to be a best interest plea. What does that mean to you?
[DEFENDANT]:
That, if I went to trial, that I would face the bigger possibility of a larger sentence and that, with the agreement that my attorney and [the prosecutor] reached with the probation and evaluation and stuff, that I don’t have a problem with that.
[THE COURT]:
Okay. That’s exactly what a best interest plea is. And that’s your understanding?
| «[DEFENDANT]:
Yes, sir.
[THE COURT]:
Let’s talk about the agreement that you’ve reached — that you believe you’ve reached in terms of probation. What— has there been an agreement? Do you understand what your sentence is to be?
[DEFENDANT]:
I understand I was going to get probation and I was to be evaluated by—
[THE COURT]:
Do you understand what probation means?
[DEFENDANT]:
Oh, yes, sir.
[THE COURT]:
Aside from the best interest plea and your understanding of what the sentence is, has anybody promised you, threatened you, coerced you in any way to enter this plea of guilty?
[DEFENDANT]:
No, sir.
[THE COURT]:
.. .The court finds that there is a factual basis for accepting the plea. The court finds that the plea is knowingly, intelligently and voluntarily made. The court accepts it and orders it entered into the minutes of this court. [Defendant], the court is going to order a pre-sentence investigation in this case. Both the State and your attorney have both recommended to the court that you be placed on probation. The 'question in my mind at this particular point in time is: What conditions of probation do I need to place on you?
[DEFENDANT]:
Yes, sir.
[THE COURT]:
Now I have said that. That does not mean if you don’t — 'if you do something that’s illegal between the time you come back — between now and the time you come back, that could all change. Assuming you stay out of trouble, assuming you do the things that you’re supposed to do, when you come back in 90 days, this court will put you on probation and will decide what conditions to place you on.
[DEFENDANT]:
Yes, sir.
LITHE COURT]:
In an effort to assist this court in deciding what conditions of probation to place on you, I am going to order that you report to Ms. Alicia Pellrgrin [sic] to have an evaluation to determine whether or not sex offender treatment is necessary, and, if so, to what extent. (Emphasis added.)

At the sentencing hearing, the trial court stated that it had reviewed the pre-sentence investigation (PSI) and noted that defendant was not legally eligible for probation. Moreover, considering defendant’s record, the trial court felt that he was not a good probation risk. The trial court then imposed the maximum sentence for simple burglary of twelve years at hard labor, with the sentence to run consecutively to any previous sentence the defendant was presently serving.

Defendant objected to the sentence and attempted to explain to the court that the only reason he entered a “best interest plea” was because he would receive probation as part of the plea agreement. The trial court then stated, “I didn’t say that to you. When I — when you were in this open courtroom I told you there were no promises whatsoever made, and I was going to order a PSI. Did you not take my word seriously?”

The defendant then indicated that it was his impression that the presentence investigation was to determine the length of probation. The trial court disputed defendant’s recollection as being inaccurate. At that point, both the prosecutor and defense counsel confirmed that the State had recommended probation and sex offender treatment as defendant’s sentence. Defendant again stated that he would never have pled guilty had that not been the plea agreement.

The trial court reiterated that defendant was not eligible for probation and that it did not have to follow the previous recommendations on sentence. Defendant then asked to withdraw his guilty plea. The trial court instructed defendant to file a motion to withdraw the plea.

|<;The defendant subsequently filed a motion for reconsideration of sentence or, in the alternative to withdraw his plea. The trial court denied defendant’s motion. The trial court in denying the motion, noted that defendant had been arrested three separate times since entering his guilty plea in the instant case.

ASSIGNMENT OF ERROR

Defendant argues that the trial court erred in accepting his plea when the record clearly indicates defendant entered the plea as a result of the agreement reached by the parties that he would receive probation if he pled guilty to the amended charge of simple burglary.

A trial court may permit the withdrawal of a guilty plea at any time before sentencing. La.C.Cr.P. art. 559(A). Nevertheless, even when a formal motion to withdraw a guilty plea is not filed, the Louisiana Supreme Court has held that a constitutionally infirm guilty plea may be set aside either by means of an appeal or post-conviction relief. However, a defendant may not withdraw a guilty plea simply because the sentence to be imposed is heavier than anticipated. It is not unreasonable for a trial court to deny a defendant the luxury of gambling on his sentence, then withdrawing his plea if and when he discovers, before imposition, the sentence is not to his liking. Nevertheless, a guilty plea is constitutionally infirm if a defendant is induced to enter the plea by a plea bargain, or what he justifiably believes was a plea bargain, and that bargain is not kept. In such cases, the guilty plea was not given freely and knowingly. State v. West, 97-1638, pp. 2-3 (La.App. 1st Cir.5/15/98), 713 So.2d 693, 695.

In the instant case, the trial court clearly articulated its initial intention to follow the recommendation of the prosecutor and only sentence defendant to probation with the provision that defendant stay out of trouble. In denying defendant’s motion to reconsider the sentence, the trial court noted defendant had been arrested three separate times since entering his guilty plea in the instant case. | ^Defendant entered his guilty plea on January 25, 2005. On February 15, 2005, defendant was arrested in Orleans Parish for operating a vehicle with a suspended license and illegal possession of stolen things. On March 11, 2005, defendant was arrested in Jefferson Parish for illegal possession of stolen things; and on March 15, 2005, defendant was arrested in East Baton Rouge Parish for felony theft.

As the State points out, this case is analogous to the scenario in State v. Wheat, 612 So.2d 176, 178 (La.App. 1st Cir.1992), wherein the defendant pled guilty and was told by the trial court that if he did not get into trouble before his sentencing date, he would likely be sentenced to probation. Between the time of his guilty plea and his sentencing date, defendant was arrested. The trial court subsequently sentenced defendant to a term of five years imprisonment. This court found that defendant’s guilty plea was unconditional, but the sentence to be imposed depended upon the outcome of the PSI and defendant’s staying out of trouble. State v. Wheat, 612 So.2d at 178.

In the instant case, when defendant entered his guilty plea he was told by the trial court that if he stayed out of trouble, he would be sentenced to probation. Under the circumstances of this case, we cannot say the trial court erred in refusing to allow defendant to withdraw his guilty plea.

This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.


author: DOWNING, J. PETTIGREW, J.,

text:
    STATE of Louisiana v. Larry Dean ROBERTSON.
    No. 2006 KA 0037.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 2006.
    J. Phil Haney, District Attorney, Jeffrey J. Trosclair, Assistant District Attorney, Franklin, Counsel for Plaintiff/Appellee State of Louisiana.
    Lynden J. Burton, New Iberia, Counsel for Defendant/Appellant Larry Dean Robertson.
    Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

| ^Defendant, Larry Dean Robertson, was charged by grand jury indictment with aggravated rape, a violation of La. R.S. 14:42. Defendant pled not guilty. He was tried before a jury, which determined he was guilty. The trial court sentenced defendant to a term of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant appeals. We affirm his conviction and sentence.

FACTS

In the early morning hours of June 6, 1990, Comfort Martin, an eighty-eight year-old resident of Franklin, was awakened by a black man strangling her in her bed. The assailant overpowered Martin and raped her. Following the attack, Martin went to the nearby home of her brother-in-law, Leonard Martin, and reported to him that she had been attacked and raped. Martin was taken to Franklin Foundation Hospital.

Dr. Brent Allain testified that he was called to the emergency room at approximately 4:00 a.m. on June 6, 1990 to evaluate Martin, who was his patient. Martin reported to him that she had been raped. Dr. Allain performed a physical exam on Martin and noted that she had bruising on her face, inner thighs, and vaginal area. Martin also had blood in her vaginal floor.

Martin also reported to Dr. Allain that her assailant asked her to perform oral sex on him, but she refused. Martin told Dr. Allain that she was able to retrieve a gun and fire the weapon’s only bullet at her assailant, but she was again overpowered and the assailant took the gun from her. Martin stated that her assailant attempted to shoot her, but the gun no longer had any bullets in it. The assailant then left. A rape kit was collected at the |ahospital, including clothing worn by Martin, swabs of her vagina, scrapings of her fingernails and samples of her hair.

On June 6, 1990, Joseph Williams was arrested in connection with this offense; however, the evidence was insufficient to maintain the charge. Initial testing of the physical evidence in 1990 by Acadiana Crime Lab indicated that there were blood or semen stains on Martin’s gown. Because DNA testing was not widely available in 1990, no further laboratory analysis of the evidence was performed; however, the evidence was preserved. From that point in time, the case was considered unsolved and no further progress was made in finding Martin’s assailant. Martin died on January 15,1997.

In 2003, the Acadiana Crime Lab received a grant to carry out DNA analysis on older unsolved cases. Pursuant to this grant, Acadiana Crime Lab sent some of the evidence from Martin’s rape kit to Orchid Cellmark, a private laboratory located in Nashville, Tennessee, for DNA analysis. Orchid Cellmark’s testing established a DNA profile of Martin’s assailant. This DNA profile was sent back to Acadia-na Crime Lab, where Winnie Wong, a forensic scientist, entered the data into CODIS (Combined DNA Index System), a database of DNA profiles.

Carolyn Booker, a forensic chemist and CODIS manager at Acadiana Crime Lab, testified that once a DNA profile is entered into the CODIS database, it is uploaded to the Louisiana State Police Crime Lab database and a statewide search for a match is performed. In this case, Acadia-na Grime Lab was notified on November 21, 2003, that there was a match to the DNA profile with the sample submitted, and the individual was already entered into CODIS.

14At that point, the identity of the individual was not revealed to Acadiana Crime Lab; they were only notified of a matching DNA profile and its reference number. The State Police Crime Lab then confirmed the match by reviewing the referenced DNA profile of the individual to whom the match was made to confirm it was the same profile. Following this procedure, the State Police Crime Lab sent a confirmation letter revealing the name of the individual whose DNA profile had matched the evidence submitted.

In March 2004, the State Police Crime Lab sent a confirmation letter to the Aca-diana Crime Lab revealing the identity of the individual whose DNA profile matched the evidence submitted as the defendant. Acadiana Crime Lab turned over this information to the St. Mary Parish Sheriffs Office. Detective Richard Rivere questioned defendant and eventually obtained a blood sample, hair sample, and saliva swab from defendant. A DNA analysis was performed on defendant’s blood sample, and a match was made to the results obtained by Orchid Cellmark.

ABSENCE OF DEFENDANT DURING TRIAL PROCEEDINGS

In his two assignments of error, defendant argues the trial court erred in not having him present at the commencement of his jury Mal and in conducting the jury trial outside of his presence.

The defendant was physically present in the St. Mary Parish Courthouse on April 4, 2005, when his jury trial was scheduled to commence. The jury venire was excused from the courtroom in order for the defendant to address the court prior to jury selection. Outside of the presence of the jury venire, defendant expressed his dissatisfaction with his court-appointed attorney and the Indigent Defender Board (IDB) in general.

1 .^Defendant then continued his exchange with the trial court by stating he was not able to afford his own attorney and did not feel qualified to represent himself. The trial court then told defendant that he was “not going to let you keep rambling and shuffle [sic] papers. Now listen to me. You feel that you want a new lawyer. We went through this once before and then I believe you talked to Mr. Colwart and everything was okay.”

At the trial court’s prompting, Mr. Col-wart then described his history of representing defendant in the present matter, including how their relationship was off to a rough beginning, but defendant eventually accepted Mr. Colwart’s representation. However, when Mr. Colwart attempted to meet with defendant the Friday prior to trial, defendant refused to see him and indicated that Mr. Colwart was not his lawyer. Denisee Robertson, the IDB Investigator assisting Mr. Colwart on defendant’s case, confirmed that defendant cooperated with them at a meeting the week prior to trial, before things again went awry regarding defendant’s attitude.

The exchange continued between defendant,- the trial court, defense counsel and the prosecutor, with defendant insistent that he wanted the court to provide a different attorney for him. The prosecutor brought up the fact that defendant’s initial IDB attorney was recused from representation.

The following exchange then occurred:

BY THE COURT:
We’re going to proceed. Now, you have your choice. You can stay in this courtroom with Mr. Colwart, do you understand, and we can select the jury. I assure you he’s an expert at that, and you’ll be here.
(THE DEFENDANT NODS NEGATIVELY.)
BY THE COURT:
And you’re shaking your head no. What do you want to do?
|rBY THE DEFENDANT:
I’m not doing either one of them, Your Honor.
* * *
BY THE COURT:
Okay. You’re going to go to court this morning, sir.
Now do you want to be present in this courtroom while we select a jury or not?
BY THE DEFENDANT:
I’m not going to be present.
BY THE COURT:
You want to voluntarily absent yourself from the courtroom; is that right?
BY THE DEFENDANT:
I’m not voluntarily doing anything because I asked this Court already to hire me an attorney. You can’t get me to cross-talk myself.
BY THE COURT:
Excuse me, Mr. Robertson. I’m going to try this one more time and I want you to really believe what I’m saying.
Now if you want to absent yourself from court, if you want to go back to your jail cell, we’re going to go ahead and select a jury without you. I would prefer that you be in this courtroom and you aid and assist your attorney in picking a jury.
BY THE DEFENDANT:
I’m not going to be here.
BY THE COURT:
So it’s a no, you don’t wish to stay here and help select a jury.
BY THE DEFENDANT:
I’ve asked for this Court to provide me with an attorney according to my 6th Amendment right because I’m not having it going on with the ID Board.
BY THE COURT:
Okay. Well I have no choice then to proceed with the selection of the jury. If you want to go back to your jail cell, we’ll have somebody escort you there, Mr. Robertson. Is that your decision?
BY THE DEFENDANT:
17That’s fine with me.

The exchange continued along these same lines with the defendant eventually walking out of the courtroom. Following defendant’s departure, the trial court questioned Mr. Colwart and Ms. Robertson to determine their appreciation of defendant’s behavior toward their representation of him. The trial court concluded that defendant voluntarily absented himself and that there was nothing else they could do except to move forward. The jury venire was then allowed to reenter the courtroom, and the trial court admonished the venire to not give any weight to the defendant’s absence as he had exercised his right to do so and done so voluntarily.

Louisiana Code of Criminal Procedure art. 831 provides:

A. Except as may be provided by local rules of court in accordance with Articles 522 and 551, a defendant charged with a felony shall be present:
(1) At arraignment;
(2) When a plea of guilty, not guilty, or not guilty and not guilty by reason of insanity is made;
(3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror;
(4) At all times during the trial when the court is determining and ruling on the admissibility of evidence;
(5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced; and
(6) At the rendition of the verdict or judgment, unless he voluntarily absents himself.
B. Nothing in this Article shall prohibit the court, by local rule, from providing for a defendant’s appearance at his arraignment by simultaneous audio-visual transmission, except when the defense counsel requests the defendant’s appearance in open court.

| ^Louisiana Code of Criminal Procedure art. 832 provides in pertinent part:

A. A defendant initially present for the commencement of trial shall not prevent the further progress of the trial, including the return of the verdict, and shall be considered to have waived his right to be present if his counsel is present or if the right to counsel has been waived and:
(1) He voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to be present during the trial; or
(2) After being warned by the court that disruptive conduct will cause him to be removed from the courtroom, he persists in conduct which justifies his exclusion from the courtroom.

Louisiana Code of Criminal Procedure art. 831 .provides for a defendant’s due process right to be present at every stage of the trial when his absence might frustrate the fairness of the proceeding. However, the provisions of Art. 831 are not absolute. A defendant may waive his right to be present by voluntarily absenting himself from the trial if he is “initially present for the commencement of the trial.” La.Code Crim. P. art. 832. Louisiana Code Crim. P. art. 761 informs us that “[a] jury trial commences when the first prospective juror is called for examination.” Here, the facts show that defendant was not present for the commencement of the trial; accordingly, the provisions of Art. 832 are inapplicable to the matter before us.

Even so, we note that under Diaz v. U.S., 223 U.S. 442, 453-59, 32 S.Ct. 250, 253-55, 56 L.Ed. 500 (1912), defendant’s absenting himself from the courtroom for all proceedings can be viewed as a waiver of his right to be there. As the Diaz court noted, if such a principle did not apply, there could be no conviction of any defendant unless he wished to be present at the time the verdict was rendered.

lain the present case, the record indicates defendant cooperated with his attorney earlier in the week preceding his trial. However, for no apparent reason, on the Friday prior to trial defendant refused to meet with his attorney. On the morning of trial, defendant made it very clear to the trial court that he wanted a new private lawyer hired by the court and he would not go forward under Mr. Colwart’s representation. Defendant failed to articulate any complaint regarding Mr. Colwart’s representation.

Based on the trial court’s questioning of defendant, Mr. Colwart, and Ms. Robertson, it is apparent that defendant’s refusal to participate in his own defense or be present in the courtroom was a delay tactic. Defendant had been provided representation, with which he earlier cooperated. However, defendant’s behavior of demanding a new private attorney on the morning of trial was calculated to prevent his trial from occurring. There is no evidence in the record to indicate Mr. Col-wart was unprepared or unwilling to provide effective representation to defendant.

Under these circumstances, defendant’s demand to have a new private attorney hired on his behalf was not an option available to him. Accordingly, defendant’s refusal to be present in the courtroom for jury selection and the presentation of evidence can only be considered as a voluntary absence.

Throughout the trial, both the trial court and Mr. Colwart made several efforts to invite defendant back into the courtroom so defendant could participate in the proceedings, all of which were ignored by defendant. We note Mr. Colwart was present in the courtroom for jury selection and the cross-examination of the State’s witnesses. Under the facts of this case, Mr. Colwart’s presence satisfies the due process requirements.

Accordingly, these assignments of error are without merit.

|inDECREE

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED

PETTIGREW, J., concurs, and assigns reasons.

PETTIGREW, J.,

concurring.

hi am of the opinion the defendant voluntarily absented himself and waived his appearance at his trial under La.Code of Crim. P. art. 832. The conviction and sentence should be affirmed.

      . Dr. Allain was accepted by the trial court as an expert in family medicine.

      . At no point in time did Orchid Cellmark identify defendant as Martin’s assailant. The testing performed merely extracted the assailant’s DNA from the victim's vaginal swab and identified the assailant's DNA profile.

      .Wong was accepted by the trial court as an expert in forensic chemistry.

      . No relation to defendant.


author: GUIDRY, J. GAIDRY, J., PETTIGREW, J.,

text:
    STATE of Louisiana v. John LABAUVE.
    No. 2005 CA 1273.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 2006.

      Harrietta J. Bridges, Baton Rouge, Counsel for PlaintiffAppellant State of Louisiana through the Department of Public Safety and Corrections, Office of State Police, Bureau of Criminal Identification and Information.
    Tommy Thompson, Port Allen, Counsel for Defendant/Appellee John Labauve, Jr.
    Richard J. Ward, District Attorney, Elizabeth A. Engolio, Assistant District Attorney, Plaquemine, Counsel for Appel-lee Office of District Attorney Eighteenth Judicial District Parish of West Baton Rouge.
    Before: PARRO, KUHN, GUIDRY, PETTIGREW, and GAIDRY, JJ.
   GUIDRY, J.

|;>A state law enforcement agency appeals a trial court judgment granting defendant’s motion to expunge the record of his felony arrest and conviction. Having carefully reviewed the record and the law governing this matter, we vacate the order to destroy all records of the defendant’s felony arrest and conviction.

FACTS AND PROCEDURAL HISTORY

In 1999, the defendant, John L. Labau-ve, Jr., was arrested by the West Baton Rouge Parish Sheriffs Office, and later indicted on one count of carnal knowledge of a juvenile (La. R.S. 14:80), a felony offense, for having sexual intercourse with a minor female, age fifteen years old. The defendant was twenty-one years old at the time of the occurrence. The defendant initially plead not guilty to the charge, but later, at the time of trial, on March 10, 2000, he changed his plea to guilty and waived all delays for sentencing. In accordance with the recommendation of the District Attorney’s Office for the Eighteenth Judicial District, the trial court sentenced the defendant to the custody of the Louisiana Department of Public Safety and Corrections for a period of two years, but suspended the sentence and placed the defendant on probation for five years, under the supervision of the Louisiana Department of Public Safety and Corrections. The trial court also included in the sentence an order that the defendant’s name not be put on the “Sex Offender” registry.

Four years later on May 4, 2004, the defendant again appeared before the trial court and was allowed to withdraw his previous plea of guilty to the felony indictment of carnal knowledge of a juvenile, La. R.S. 14:80. He was then permitted to plead guilty to the misdemeanor charge of carnal knowledge of a juvenile, La. R.S. 14:80.1, and was sentenced to serve six months in the parish jail on the misdemeanor conviction; however, the trial court suspended the sentence |3and ordered that the previous felony plea, Boy- kin record, and sentence be stricken from the record.

On May 18, 2004, the defendant filed a motion to expunge the record of his arrest and conviction relative to the felony offense, which motion was subsequently granted by order of the trial court on June 1, 2004. In the June 1, 2004 decree, the trial court expressly ruled:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the custodian of records for the Louisiana State Police and all other agencies and law enforcement officers having records pertaining to the arrest of John LaBau-ve, Jr.’s arrest for John LaBauve, Jr. (sic) on October 29, 1999, and/or the conviction of John LaBauve, Jr. on March 10, 2000, for Felony Carnal Knowledge of a Juvenile and Statutory Rape — No Force, file an affidavit stating that the above mentioned records have been destroyed and that no notation or reference have (sic) been retained in the agency’s central repository which will or might lead to the inference that any record ever was on file with any agency or law enforcement officer.

The defendant later filed a motion for the issuance of a rule to show cause on February 18, 2005, stating that “[t]o date there has been no response from the Louisiana State Police regarding their decision on the Expungement.” In the motion, the defendant requested that the Louisiana State Police be ordered to show cause why his motion for expungement should not be granted. A trial on the motion was held on April 5, 2005, and the trial court again granted the motion to expunge in an order containing the same decretal language as found in the June 1, 2004 order. It is from that order that the State of Louisiana, through the Department of Public Safety and Corrections, Office of State Police, Bureau of Criminal Identification and Information (State Police) now appeals.

I ¿ASSIGNMENTS OF ERROR

In this appeal, the State Police contend that the trial court erred (1) in allowing the defendant to withdraw his original plea of guilty to felony carnal knowledge of a juvenile years after execution and completion of his sentence; (2) in allowing the defendant to plead guilty to misdemeanor carnal knowledge of a juvenile, which crime did not exist in Louisiana law at the time defendant committed the crime; and (3) in ordering the felony criminal record history of defendant expunged. As the order appealed deals solely with the motion to expunge, we will limit our review to consideration of the State Police’s third assignment of error and pretermit any discussion of the other assignments of error.

DISCUSSION

On initial review of the record, we question the validity of the order appealed since it appears facially invalid as an order adjudicating matters already fully adjudged in a previous order of June 1, 2004. In their briefs, the parties do not mention the existence of the two orders addressing the motion to expunge; however, on questioning in oral arguments before this court, counsel for the defendant argued that the June 1, 2004 order was an absolute nullity in that a contradictory hearing was not held prior to the trial court issuing a ruling on the motion. Counsel thus argued that by virtue of the nullity of the first order, the April 11, 2005 order is valid.

The procedures and requirements relative to granting a motion to expunge are found in La. R.S. 44:9, which statute provides in pertinent part:

E. (l)(a) No court shall order the destruction of any record of the arrest and prosecution of any person convicted of a felony, including a conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure.
(b) After a contradictory hearing with the district attorney and the arresting law enforcement agency, the court may order expungement of the record of a felony conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure. Upon the entry of such an order of | ^expungement, all rights which were lost or suspended by virtue of the conviction shall be restored to the person against whom the conviction has been entered, and such person shall be treated in all respects as not having been arrested or convicted unless otherwise provided in this Section or otherwise provided in the Code of Criminal Procedure Articles 893 and 894.
(2) No court shall order the expungement or destruction of any record of the arrest and prosecution of any person convicted of a sex offense as defined by R.S. 15:541(14.1), involving a child under the age of seventeen years. The provisions of this Paragraph shall apply to all records of any proceedings, order, judgment, or other action under Code of Criminal Procedure Article 893. (Footnote omitted.)

Subsection E(l)(b) of the statute expressly provides that a contradictory hearing be held with the district attorney and arresting law enforcement agency before the trial court issues an order of expungement. The record does not indicate that such a hearing was held prior to the rendition of the June 1, 2004 order. Absent such a hearing, the June 1, 2004 order is an absolute nullity, and as such, has no legal existence that would bar or invalidate the April 11, 2005 order, properly rendered following a contradictory hearing on the motion to expunge.

Accordingly, as we have determined that the order before us was rendered after being duly noticed and conducted, we can now consider the merits of the appeal. The defendant’s felony conviction for carnal knowledge of a juvenile was vacated and set aside when the trial court determined the facts surrounding the guilty plea rendered it constitutionally deficient. See State v. Smith, 406 So.2d 1314, 1315 (La.1981). Although vacation of the felony conviction is tantamount to a dismissal of the conviction, La. R.S. 44:9E(l)(b) expressly provides that expungement of a felony conviction only lies when a felony conviction is dismissed pursuant to La. C.Cr.P. art. 893. The dismissal in this case was made pursuant to the trial court vacating the conviction of the felony offense. Dismissal in this manner does not qualify the conviction for expungement under a strict application of La. R.S. 44:9.

| ^Moreover, expungement is precluded by La. R.S. 44:9E(2), which provides that “[n]o court shall order the expungement or destruction of any record of the arrest and prosecution of any person convicted of a sex offense as defined by R.S. 15:541(14.1), involving a child under the age of seventeen years.” As the crime committed involved a fifteen-year-old female, and felony carnal knowledge of a juvenile, La. R.S. 14:80, is found under Subpart A(l) of Part V of Chapter 1 of Title 14, which La. R.S. 15:541(14.1) defines as a “sex offense,” ex-pungement of the vacated conviction was further prohibited by law. Accordingly, we find merit in the State Police’s appeal challenging the trial court’s order to destroy all records pertaining to the defendant’s arrest and conviction for felony carnal knowledge of a juvenile.

CONCLUSION

Based on a careful review of the record and law governing this matter, we find that the trial court erred in ordering destruction of all records pertaining to the defendant’s arrest and conviction for felony carnal knowledge of a juvenile. In so finding, we vacate the entirety of the April 11, 2005 judgment. All costs of these proceedings are cast to the defendant, John L. Labauve, Jr.

JUDGMENT VACATED.

KUHN, J., concurs.

GAIDRY, J., concurs and assigns reasons.

PETTIGREW, J., dissents and assigns reasons.

GAIDRY, J.,

concurring.

[ VWhile I join in the reasoning expressed by the majority, I concur simply for the purpose of assigning these additional reasons. While the legal validity of the order permitting the withdrawal of the plea of guilty might not directly confront us in this appeal, its validity was a necessary predicate to the order of expungement, and therefore properly at issue here. Louisiana Code of Criminal Procedure article 559 authorizes the withdrawal of a plea of guilty before sentence; it does not vest such discretion in the trial court after sentencing and after the sentence has been completed. In my view, there is no statutory authority for the trial court’s action in issuing the first order, and thus no subject matter jurisdiction vested in the trial court. The first order was a nullity. The order of expungement, being founded upon a nullity, is therefore legally deficient, and is properly vacated.

PETTIGREW, J.,

dissenting.

hi respectfully dissent from the majority and, for the following reasons, believe that this appeal should be dismissed.

Initially, I note that pursuant to La. R.S. 44:9(E)(1), the trial court may order ex-pungement of the record of a felony conviction after a contradictory hearing with the district attorney and the arresting law enforcement agency. In the instant case, the district attorney joined in the motion to expunge. The arresting agency was the West Baton Rouge Parish Sheriffs Office. I see no legal requirement that the State of Louisiana, Department of Public Safety and Corrections (“DPSC”) be notified of or even be present at the hearing. Thus, it is my humble opinion that DPSC has no standing to appeal the trial court’s decision below.

Furthermore, La. R.S. 44:9(E)(2) provides that “No court shall order the ex-pungement or destruction of any record of the arrest and prosecution of any person convicted of a sex offense .... ” According to the record in this case, the defendant’s felony conviction for carnal knowledge of a juvenile was based on a plea agreement that was constitutionally infirm. The defendant had every legal and constitutional right to withdraw from the plea agreement, which he did, and, therefore, there is no conviction on the public record and should be no record to expunge.

      . A typographical error appears in the second order rendered by the trial court on the motion to expunge in that at the beginning of the order it states that the matter from which the order derives came to be heard on April 5, 2005, but then states that the order was signed by the trial court on April 11, 2004. Nevertheless, the petition for appeal notes that recitation of ''2004” as the year the order was signed was erroneous, and that the correct date is April 11, 2005. The notice of appeal also recites the date of April 11, 2005, as the date the order was signed.

      . We further observe that La. R.S. 44:9G provides that " '[e]xpungement' means removal of a record from public access but does not mean destruction of the record.” (Emphasis added.)

      . Moreover, La. R.S. 44:9E(l)(a) expressly prohibits a court from ordering the destruction of any record of the airest and prosecution of a person convicted of a felony.