author: DECUIR, Judge. COOKS, J.,

text:
    STATE of Louisiana v. Michael W. COLTON.
    No. 07-252.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      David W. Burton, District Attorney, Richard A. Morton, Assistant District Attorney, DeRidder, LA, for Appellee State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant-Appellant Michael W. Colton.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR and BILLY H. EZELL, Judges.
   DECUIR, Judge.

hOn August 10, 2005, the Defendant, Michael W. Colton, sold 0.10 grams of rock cocaine to undercover officer Marie Potter in DeRidder, Louisiana. A bill of information was filed charging Defendant with distribution of cocaine, in violation of La. R.S. 40:967. A jury found him guilty as charged.

The State filed a habitual offender bill, and the trial court conducted a hearing, finding Defendant to be a fourth offender. The trial court sentenced Defendant to life imprisonment. The court denied his motion to reconsider sentence.

Defendant now appeals his conviction, adjudication as a habitual offender, and sentence. He assigns four errors.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent involving the sentence imposed.

Prior to imposing Defendant’s sentence, the judge stated, “The Court now adjudicates you to be a fourth felony habitual offender, pursuant to the Louisiana Habitual Offender Law, R.S. 15:529.1 A(l)(c)(ii), and further finds you are not entitled to diminution of sentence for good behavior under R.S. 15:571.3 C(l), (2) and (3).” When imposing Defendant’s sentence the judge stated, “It is the sentence of the Court that' you, Michael W. Colton, be incarcerated at hard labor with the Department of Corrections for the remainder of your natural life. You shall not be entitled to diminution of sentence for good behavior as provided in R.S. 15:571.3 C(l), (2)and (3).” Later, when clarifying a point for the prosecutor, the judge reiterated that Defendant was not entitled to diminution of sentence for good behavior.

1 gThis court has held that similar language was not merely a La.Code Crim. P. art. 894.1(D)(1) advisement, but was an actual denial of eligibility for diminution of sentence. See State v. Davis, 05-543 (La.App. 3 Cir. 12/30/05), 918 So.2d 1186, writ denied, 06-587 (La.10/13/06), 939 So.2d 372. La.R.S. 15:571.3(C) is directed exclusively to the Department of Corrections and prohibits the department from granting good time to defendants who have been adjudicated an habitual offender. State v. Narcisse, 97-3161 (La.6/26/98), 714 So.2d 698. Therefore, a trial judge does not have authority to deny diminution of sentence under that provision. Id. Accordingly, we find the trial court’s statements regarding diminution was improper and Defendant’s sentence is hereby amended to delete the trial court’s statements regarding diminution eligibility. Additionally, the district court is instructed to make an entry in the minutes reflecting this amendment.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant alleges his trial counsel had a conflict of interest that prevented the effective representation of his interests and rights. He claims his trial counsel, Charles A. “Sam” Jones III, prosecuted him for one of the prior offenses for which he was habitualized. The State responded that Defendant, through his appellate counsel, is “arguing facts which are not in the record and/or which are simply not true.”

As the State points out, the transcript of Defendant’s guilty plea on September 14, 1989 shows that trial counsel Jones was not involved in the plea, even though the minutes for that date show he was present. It is well-settled that when minutes and a transcript conflict, the transcript controls. Thus, Defendant’s assignment lacks factual support.

I «ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, Defendant argues his habitual offender sentence is unconstitutional, because it was a life sentence and the habitual offender proceedings were not instituted by a grand jury.

As the State observes in its brief, Defendant failed to make this objection at trial. Therefore, he may not raise it for the first time on appellate review. “Constitutional issues are no exception.” State v. Williams, 02-1030, p. 7 (La.10/15/02), 830 So.2d 984, 988. The Williams case included challenges to the constitutionality of a particular evidentiary statute which the supreme court declined to address.

Additionally, the assignment lacks substantive merit. The Louisiana Constitution does not require a grand jury indictment for habitual offender proceedings. State v. Jolla, 337 So.2d 197 (La.1976); State v. Maduell, 326 So.2d 820 (La.1976); and State v. Williams, 326 So.2d 815 (La.1976).

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, Defendant argues the habitual offender proceeding was unconstitutional because it caused his sentence to be enhanced based upon factual determinations made by the judge, rather than the jury. Defendant cites Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), rehearing denied, 542 U.S. 961, 125 S.Ct. 21, 159 L.Ed.2d 851 (2004) and U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), for the proposition that facts used to enhance a sentence should be found by the jury, rather than the judge. However, the Supreme Court has excepted the existence of prior convictions from this requirement. Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,147 L.Ed.2d 435 (2000).

|4As recently as April 18, 2007, in James v. United States, — U.S. -, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), the Supreme Court indicated, albeit in its eighth footnote, that the prior convictions exception remains extant. Therefore, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 4

In his final assignment of error, Defendant argues his life sentence is excessive. The trial court found Defendant to be a fourth habitual offender; thus, a life sentence was mandated by La.R.S. 15:529.1(A)(l)(c)(ii). Defendant made an oral objection to .the sentence, without elaboration. In his subsequent written motion to reconsider sentence, Defendant again failed to specify a legal basis for the motion. Thus, he is now limited to review of a bare claim of excessiveness. La.Code CrimJP. arts. 881.1(B), (E); 881.2(A)(1). In a review of an appeal by the State, this court explained the analysis for such ex-cessiveness claims under La.R.S. 15:529.1:

In State v. Johnson, 97-1906, pp. 6-8 (La.3/4/98); 709 So.2d 672, 674-77 ..., the supreme court addressed the circumstances under which State v. Dorthey, 623 So.2d 1276 (La.1993), would permit a downward deviation from a statutorily-mandated sentence:
In State v. Dorthey, supra, this Court held that a trial court must reduce a defendant’s sentence to one not constitutionally excessive if the trial court finds that the sentence mandated by the Habitual Offender Law “makes no measurable contribution to acceptable goals of punishment,” or is nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime.” Id. at 1280-81. Finding a mandatory minimum sentence constitutionally excessive requires much more, though, than the mere utterance of the phrases above.
A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. See State v. Dorthey, supra at 1281 (Marcus, J., concurring); State v. Young, supra [94-1346 (La. App. 4 Cir. 10/26/95); 663 So.2d 525]. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality.
| ¡A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality. While the classification of a defendant’s instant or prior offenses as nonviolent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. LSA-R.S. 15:529.1 provides that persons adjudicated as third or fourth offenders may receive a longer sentence if their instant or prior offense is defined as a “crime of violence” under LSA-R.S. 14:2(13). Thus the Legislature, with its power to define crimes and punishments, has already made a distinction in sentences between those who commit crimes of violence and those who do not. Under the Habitual Offender Law those third and fourth offenders who have a history of violent crime get longer sentences, while those who do not are allowed lesser sentences. So while a defendant’s record of non-violent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence excessive.

Instead, to rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must dearly and convincingly show that:

[he] is exceptional, ivhich in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.
Young, 94-1636 at pp. 5-6, 663 So.2d at 528 (Plotkin, J., concurring).
When determining whether the defendant has met his burden of proof by rebutting the presumption that the mandatory minimum sentence is constitutional, the trial judge must also keep in mind the goals of the Habitual Offender Law. Clearly, the major reasons the Legislature passed the Habitual Offender Law were to deter and punish recidivism. Under this statute the defendant with multiple felony convictions is treated as a recidivist who is to be punished for the instant crime in light of his continuing disregard for the laws of our state.
He is subjected to a longer sentence because he continues to break the law. Given the Legislature’s constitutional authority to enact ^statutes such as the Habitual Offender Law, it is not the role of the sentencing court to question the wisdom of the Legislature in requiring enhanced punishments for multiple offenders. Instead, the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates our constitution.
Johnson, 709 So.2d 672, clearly states that a non-violent history cannot be the major reason for a downward deviation. At the reconsideration hearing the trial court acknowledged Johnson, but then relied upon Defendant’s non-violent history as the main reason for its downward deviation. The only other factor in the trial court’s reasons was its view of policy considerations. However, as explained in Johnson, policy decisions regarding habitual offenders have already been made by the legislature. We, therefore, find merit in the State’s assignments of error.

State v. Calhoun, 00-614, pp. 17-20 (La.App. 3 Cir. 11/2/00), 776 So.2d 1188, 1198-1200, unit denied, 00-3309 (La.10/26/01), 799 So.2d 1151.

At the sentencing hearing in the present case, the court explained:

The Court ordered and received a pre-sentence investigation report from the Department of Probation and Parole, even though in this case there is mandatory life imprisonment sentence required. The PSI reflects that in addition to the four felony convictions described above, you also committed and were convicted of numerous misdemeanors, including simple battery, disturbing the peace, possession of drug paraphernalia, criminal neglect of family, theft of goods and resisting an officer. You are now 40 years of age; and for no substantial period during your adult life have you not been either incarcerated, on parole or on probation. In short, you have lived a life of crime.
The mandatory sentence prescribed in R.S. 15:529.1 is found by this Court to be not constitutionally excessive, nor is it inappropriate or unlawful. Further[,] the Court specifically finds that the sentence is neither cruel nor unusual.

Defendant has failed to demonstrate that he is “exceptional” pursuant to Johnson and Young. He testified at the habitual offender hearing, but he focused on claiming that he was innocent of the underlying offense. At the end of his testimony, [ 7he admitted being a drug user, and claimed to be an addict, but denied having sold drugs since 1993.

We find Defendant’s unsupported claim that he is merely a drug user, rather than a drug distributor, is negated by his most recent conviction. The fifth circuit has held that a defendant’s bare claim that he is a non-violent addict will not render the mandatory minimum sentence of La.R.S. 15:529.1 excessive. State v. Harbor, 01-1261 (La.App. 5 Cir. 4/10/02), 817 So.2d 223, 227, unit denied, 02-1489 (La.5/9/03), 843 So.2d 388.

Pursuant to the jurisprudence discussed, we conclude the assignment lacks merit.

DECREE

Defendant’s conviction is affirmed; his sentence is amended to delete the trial court’s statements regarding diminution eligibility. The case is remanded and the district court is instructed to make an entry in the minutes reflecting this amendment.

AFFIRMED AS AMENDED AND REMANDED WITH INSTRUCTIONS.

COOKS, J., dissents in part and assigns reasons.

COOKS, J.,

dissents in part.

hi agree with the majority’s affirmance of Defendant’s conviction and habitual offender adjudication. However, I find there is merit to Defendant’s assignment of error that his life sentence is excessive. A review of the record indicates Defendant’s prior felony offenses involved small, street level sales of cocaine and one theft of livestock. The underlying offense in this case was the selling of .10 grams of rock cocaine for twenty dollars. In my opinion the record clearly establishes Defendant is a drug addict, and that his addiction causes his recidivism. Therefore, I find the sentence of life imprisonment without benefit of probation, parole or suspension was excessive and constitutes cruel and unusual punishment.

The Fourth Circuit in State v. Burns, 97-1553 (La.App. 4 Cir. 11/10/98), 723 So.2d 1013, unit denied, 98-3054 (La.4/1/99), 741 So.2d 1282, and State v. Stevenson, 99-2824 (La.App. 4 Cir. 3/15/00), 757 So.2d 872, writ denied, 00-1061 (La.11/17/00), 773 So.2d 734, noted that where a sentence of life imprisonment is involved, heightened scrutiny is triggered in determining if a downward departure from the statutory minimum is warranted. The court in Bums stated:

Here the defendant has much more at stake than did the defendant in Johnson. In this case, the defendant will spend the rest of his life in jail because of the mandatory life sentence imposed. ...
Whenever a defendant is faced with a mandatory life sentence as a multiple offender, heightened scrutiny is triggered when determining |gif defendant falls within those “rare” circumstances where a downward departure is warranted. [Emphasis added.]

Id., p. 8, 723 So.2d at 1019.

The defendant in Bums■ was observed by police selling one rock of crack cocaine to a third person. When arrested, the defendant was in possession of two more rocks and fifty-seven dollars. The defendant testified at trial that he was addicted to cocaine. Noting that two of the defendant’s prior convictions were for possession of cocaine, the Bums court concluded, “thus it is safe to assume he deals to support his habit.” Id. at p. 9, 723 So.2d at 1019. The defendant was twenty-five years old, and the court felt the defendant was “young enough to be rehabilitated.” Though recognizing that the simple fact that none of the defendant’s felonies were non-violent was insufficient alone to override the legislatively designated sentence under the Habitual Offender Law, the court in Bums cited Johnson for the proposition that this fact should not be discounted. The court also cited two economic impact considerations that the defendant would never be a productive taxpayer in prison, and that life imprisonment imposes an undue burden on taxpayers of the state who must feed, house, and clothe the defendant for life, and provide geriatric care in later years. The court vacated the life sentence finding that, on the facts pertaining to that defendant, it was “unable to conclude that this life sentence is not excessive under the constitutional standard.”

Similarly, in Stevenson the Fourth Circuit placed great weight on the fact that a life sentence was involved:

A life sentence forever closes the door of hope that this young defendant might one day learn from his past mistakes and ready himself to become a productive participant in our society.

Stevenson, p. 5-6, 757 So.2d at 875.

In Stevenson, 99-2824 (La.App. 4 Cir. 3/15/00), 757 So.2d 872, writ denied, 00-1061 (La.11/17/00), 773 So.2d 734, the Fourth Circuit reversed the mandatory | slife sentence imposed upon a third-felony habitual offender, likening it to Bums. In Stevenson, the defendant was a thirty-eight year old mother convicted of distribution of one rock of crack cocaine, with prior convictions for felony theft and simple burglary of an inhabited dwelling. No drugs were found on her person after her arrest for distribution of cocaine. The court noted that, like the defendant in Bums, the defendant in Stevenson had no record of violent crimes, nor was there any evidence she had ever used a dangerous weapon. The court conceded that, unlike in Bums, the defendant in Stevenson did not testify that she was a drug addict, and no one testified in her behalf. However, the Stevenson court noted the trial court had ordered the defendant to report to a substance program, and inferred the possibility that she, like the defendant in Bums, was a drug addict who sold the cocaine to support her own habit. The court concluded by stating:

In the case at bar, the life sentence imposed on this third offender may not be proportionate to the crime for which she was convicted, namely the selling of one rock of cocaine. Defendant does not have a violent history and does not appear to have significant ties to drug distributors. She may have been supporting a drug addiction with the transaction; she is fairly young, and she is a mother. It must be remembered that, if defendant does receive a life sentence, any hope for her rehabilitation will vanish, and “the taxpayers of the state [will have to] feed, house, and clothe [her] for life.” State v. Hayes, 97-1526 (La.App. 1 Cir. 6/25/99), 739 So.2d 301, 303. On the other hand, it cannot be forgotten that defendant has had two prior chances to prove herself capable of rehabilitation and has failed. She deserves severe, but constitutional, punishment.
On the record before us, we are unable to conclude either that defendant’s mandatory life sentence is constitutional or that there is clear and convincing evidence to the contrary. Therefore, we vacate defendant’s sentence and remand this case to the district court for a hearing at which defendant may present evidence that she is “exceptional ... a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 528, unit denied, 95-3010 (La.3/22/96), 669 So.2d 1223 (Plotkin, J., concurring). The district court must also consider whether, in light of the evidence presented by defendant-and any countervailing evidence presented by the State-a mandatory life sentence, for this defendant, makes no measurable contribution to acceptable goals of punishment, is |4nothing more than the purposeless and needless imposition of pain and suffering, and/or is grossly out of proportion to the severity of her crime. [State v.] Lobato, [603 So.2d 739 (La.1992),] supra. If defendant succeeds in carrying her burden, the district court, after carefully considering the evidence before it, shall use its great discretion to sentence her to the longest sentence that is not constitutionally excessive, i.e. to the maximum constitutional sentence. Randall, 741 So.2d at 860.

Stevenson, at pp. 6-7, 757 So.2d at 875-76.

The result, in Stevenson differs from that in Bums, because in Stevenson the court found what was in the record may have suggested that the mandatory life sentence might be unconstitutionally excessive, but because the evidence was insufficient to definitely resolve the issue, the court vacated the sentence and remanded the case to allow the defendant the opportunity to prove by clear and convincing evidence that the mandatory minimum sentence under the Habitual Offender Law is unconstitutionally excessive as applied to him. In Bums, the record evidence was sufficient to definitively resolve the issue of exces-siveness without a remand.

In State v. Randall, 98-1763 (La.App. 3 Cir. 6/9/99), 741 So.2d 852, writ granted, 99-2476 (La.2/11/00), 754 So.2d 245, aff'd in part, reversed in part, 99-2476 (La.12/15/00), 776 So.2d 424, this court vacated the life sentence of a third felony offender after finding it excessive as applied to a twenty-nine year old convicted of simple robbery twice and illegal possession of stolen goods. We stated:

While defendant unquestionably deserves imprisonment, a life sentence without benefit of parole, probation or suspension of sentence, would defeat any rehabilitative goal of our penal system; and in this rare instance, it is fundamentally excessive. The United States Supreme Court has declared [that] the Eighth Amendment to the United States Constitution bars excessive punishment, i.e., punishment that “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977). The Eighth Amendment bar also applies to punishment imposed by state courts. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). In Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the Supreme Court I,^invalidated a prison sentence on the ground that it was too severe in relation to the crime defendant committed, stating:
In sum, we hold as a matter of principal that a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals. But no penalty is per se constitutional. As the court noted in Robinson v. California, 370 U.S., at 667, 82 S.Ct., at 1420, a single day in prison may be unconstitutional in some circumstances.
463 U.S., at 290, 103 S.Ct., at 3009 (footnote omitted).
Legislatively mandated minimum sentences, as well as those imposed by trial courts within a statutory range, do not automatically meet constitutional muster. We must review all sentences for constitutionally prohibited excessiveness. A life sentence forever closes the door of hope that this young defendant might one day learn from his past mistakes and ready himself to become a productive participant in our society. See, State v. Bums, supra. This State’s, as well as the United States Constitution, prevents us from affirming such sentences, even if legislatively ordered, based on this record.

Id., 741 So.2d at 859.

Although the Louisiana Supreme Court reversed our finding that the Defendant in Randall had failed to show clearly and convincingly that he was a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case, it did not take exception with the methodology set forth in that opinion.

In the present case, the life sentence imposed on Defendant is not proportionate to the crime for which he was convicted, the selling of $20 worth of rock cocaine. Defendant does not have a violent history and his selling of drugs was done to support his addiction. If Defendant does receive a life sentence, any hope for his rehabilitation is vanquished. While Defendant’s continual violation of the laws of this State deserves harsh punishment, it must be constitutional.

On the face of the record before us, I am unable to conclude that this life | ^sentence is not excessive under the constitutional standard. I would therefore vacate the sentence and remand for resentencing.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. David D. JONES, Appellant.
    No. 42,531-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 7, 2007.

      Laura M. Pavy, for Appellant.
    Walter E. May, Jr., District Attorney, Kenneth P. Haines, Tammy L. Gantt Jump, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   WILLIAMS, J.

hThe defendant, David D. Jones, was charged by bill of information with possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1, and attempted simple escape, a violation of LSA-R.S. 14:110(A) and LSA-R.S. 14:27. The charges were severed and defendant was tried separately on the charge of possession of a firearm by a convicted felon. After a jury trial, the defendant was found guilty as charged. Defendant’s motions for new trial and for post verdict judgment of acquittal were denied. The trial court sentenced the defendant to serve 10 years at hard labor without the benefit of parole, probation or suspension of sentence. The defendant appeals his conviction and sentence. For the following reasons, we affirm.

FACTS

In January 2004, the defendant was charged by bill of information with possession of a firearm by a convicted felon and attempted simple escape. Previously, in May 2003, defendant had pled guilty to conspiracy to distribute cocaine and had been on supervised probation until his arrest for possession of the firearm. Defendant’s probation was thereafter revoked.

During jury selection in this case, the state exercised its six peremptory challenges to exclude black jurors. The defendant objected to the state’s exercise of its peremptory challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court found a pattern of strikes against black jurors and required the state to articulate race-neutral reasons for each of the challenges. Of the six peremptory challenges by the state, the defendant complains on appeal about the trial ^court’s ruling concerning the prospective jurors Jacqueline Williams and John Wayne Bradley.

Williams was an employee of America First Insurance Company and resided in Quitman. She stated that her husband, Gerald Williams, was employed at Louisiana Tech University. Bradley was an employee at Smurfit Stone Container and resided in Jonesboro. Bradley stated he was a divorced father of six children and a gun owner. Neither Williams nor Bradley responded when the prosecutor asked prospective jurors if they or any of their relatives had been prosecuted by the district attorney’s office.

For these two jurors, the state proffered the following reasons for peremptorily challenging them:

Jacqueline Williams: The prosecutor asked that Williams be excused because she failed to acknowledge, in response to two questions directed to the panel, that her husband had been previously arrested and prosecuted for flight from an officer in Bienville Parish in 2000. According to the prosecutor, Williams’ husband, Gerald, had the same name and same address as the “Gerald Williams” who had been prosecuted for flight from an officer by the Bienville Parish District Attorney’s office.
John Wayne Bradley: The prosecutor asked that Bradley be excused for three reasons: (1) he acknowledged that he was a gun owner, but did not acknowledge whether he agreed or not with the statement that one can have the right to bear arms taken away when one commits certain crimes; (2) he failed to acknowledge, in response to a question directed to the panel, that his son was being prosecuted for issuing worthless checks (according to the prosecutor, her office had an outstanding bench warrant for a “John Wayne Bradley, Jr.,” whom she believed was the juror’s son. However, there was nothing in the record indicating the names of Mr. Bradley’s six children); and (3) he failed to acknowledge his own pending “non-support cases” with the district attorney’s office.

Throughout the state’s explanations, the defense objected to the | sprosecutor’s references to information outside of that developed in voir dire.

As to Williams, the trial court accepted the state’s explanation as race-neutral only after the prosecutor represented that the “Gerald Williams” her office had prosecuted was a person with the same name and address as Williams’ husband. The prosecutor contended that it did not matter whether Williams was aware of her husband’s prior prosecution, since she could still be biased if she were to learn of her husband’s prior arrest during the trial.

Regarding Bradley, the trial court expressed concern about whether Bradley was aware that his son was being prosecuted or whether “John Wayne Bradley, Jr.” was even Bradley’s son. The prosecutor stated that her primary reason for challenging Bradley was the way he answered (or failed to answer) a question about taking away the right to bear arms upon commission of certain crimes. The court accepted the prosecutor’s concern over Bradley’s perceived problem with restricting gun ownership as a race-neutral explanation for the challenge.

The jury was ultimately comprised of ten white jurors and two black jurors. At the conclusion of the trial, the jury found the defendant guilty as charged. Subsequently, defendant filed a timely motion for new trial, based mainly on the court’s denial of his Batson challenges, and a motion for post verdict judgment of acquittal. The trial court denied these motions and sentenced defendant to serve 10 years at hard labor without benefit of parole, probation or suspension of sentence, consecutive to any sentence imposed for his probation violation.

I ¿DISCUSSION

The defendant contends the trial court erred in denying his motion for new trial alleging improper selection of the jury. Defendant argues that the state’s proffered explanations for the peremptory challenges were not supported by the record developed during voir dire, because the rationale in each instance was based on information known only to the state without any showing that the jurors were even aware of the information.

The United States Supreme Court has held that an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a person’s race. The three-step Batson process was recently described in Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), as follows:

A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

[Internal quotations and citations omitted.]

The race-neutral explanation offered by the state must be one which is clear, reasonable, specific, legitimate, and related to the particular case at bar. State v. Collier, 553 So.2d 815 (La.1989); State v. Coleman, 41,764 (La.App.2d Cir.1/24/07), 949 So.2d 570. The ultimate burden of persuasion remains on the party raising the challenge to prove purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991).

Louisiana has codified the Batson ruling in LSA-C.Cr.P. art. 795, which provides in pertinent part:

C. No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.
D. The court shall allow to stand each peremptory challenge exercised for a racially neutral reason either apparent from the examination or disclosed by counsel when required by the court. The provisions of Paragraph C and this Paragraph shall not apply when both the state and the defense have exercised a challenge against the same juror.
E. The court shall allow to stand each peremptory challenge for which a satisfactory racially neutral reason is given. Those jurors who have been peremptorily challenged and for whom no satisfactory racially neutral reason is apparent or given may be ordered returned to the panel, or the court may take such other corrective action as it deems appropriate under the circumstances. The court shall make specific findings regarding each such challenge.

A reviewing court owes the district court’s evaluations of discriminatory intent great deference and should not reverse them unless they are clearly erroneous. Hernandez, supra; Batson, supra; State v. Elie, 2005-1569 (La.7/10/06), 936 So.2d 791; State v. Coleman, supra. The | ^district court is in a position to observe firsthand the demeanor of the attorneys and the venire members, the nuances of the questions asked, the racial composition of the venire, and the general atmosphere of the voir dire that simply cannot be replicated from a cold transcript. State v. Juniors, 2003-2425 (La.6/29/05), 915 So.2d 291, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006); State v. Coleman, supra; State v. Jones, 41,449 (La.App.2d Cir.9/20/06), 940 So.2d 61.

In the present case, prospective juror Williams was challenged based on the prosecutor’s personal knowledge concerning the prior prosecution of Williams’ husband by the Bienville Parish District Attorney’s office. It is undisputed that this specific information was not developed during the voir dire examination. However, the record shows the name of Williams’ husband and their residential address.

In State v. Jones, supra, this court held that when a peremptory challenge is premised on information gained from outside sources, the trial court should exercise caution to ensure that the challenge based on such outside information is credible and supported by on-the-record factual findings to this effect and that a complete record is made on this issue. This court also cited decisions from other states, which held that the prosecutor may establish race-neutral reasons on the basis of the prosecutor’s own personal knowledge or recollections of prior criminal activity.

Prospective jurors who have family members with criminal records or potential ill will toward police may be peremptorily challenged. State v. Anderson, 34,-670 (La.App.2d Cir.5/9/01), 786 So.2d 917. Here, the |7prosecutor explained to the trial court that her office had prosecuted a “Gerald Williams” having the same residential address as Williams’ husband. This information was within the prosecutor’s personal knowledge and was deemed credible by the trial court. There is nothing in the record showing that the state treated similarly-situated white prospective jurors more favorably (i.e., no challenge). Based upon this record, we cannot say the trial court was clearly wrong in finding that the state provided a race-neutral explanation for the peremptory challenge.

Regarding prospective juror Bradley, the parties incorrectly state in their appellate briefs that the trial court upheld the state’s peremptory challenge on the grounds of his purported son’s prosecution for issuing worthless checks and Bradley’s non-support cases. The trial court explicitly rejected those grounds based on the limited information provided during voir dire. The peremptory challenge was upheld solely on the basis of the state’s concerns about Bradley’s responses (or lack thereof) to the issue of whether the right to bear arms could be forfeited in any circumstance.

The prosecutor’s rationale was as follows:

Mr. Bradley, the first indication I had from him, he kind of wavered when I asked about the right to bear arms and whether you could do something to have that right taken away. He kind of, he didn’t really acknowledge me. I looked specifically at him. He did not—finally after I asked him I think twice whether he thought that the law was correct in requiring that if you do certain, if you commit certain crimes that the right to bear arms is taken away, he finally said I’m a gun owner. He never did acknowledge [to] me whether or not he agreed with that law and since the defendant in this case is charged with possession of a firearm by a convicted felon in which that right is taken away from you, that was my first reason.

[7] The lack of responsiveness to questions is a valid, race-neutral ^explanation. State v. Benton, 42,121 (La.App.2d Cir.6/20/07), 960 So.2d 1192. When asked if he agreed with the law prohibiting gun ownership for convicted felons, Bradley ultimately responded that he “agree[d] with it.” However, he finished his answer by stating, “I’m a gun owner.” Thus, one could argue that it was not clear from Bradley’s response whether he was simply agreeing that there is a right to bear arms, or he was indicating that he could follow the law prohibiting convicted felons from possessing weapons. This uncertainty, coupled with Bradley’s apparent failure to acknowledge the prosecutor in the first instance, is sufficient to support the trial court’s finding that the state’s explanation was race-neutral.

The defendant’s brief also references the names of four other jurors who were included in the Batson hearing. With respect to Johnny Howard, Jr., Jacqueline Sampson and Lettie Rochelle, defendant acknowledges he did not object to the state’s proffered reasons for the peremptory challenges of those individuals. Although defendant objected to the state’s challenge of juror Levar Nelson, he does not argue this issue on appeal. Even if we were to consider the challenge of Nelson, the result would be the same. The state’s proffered reason for challenging Nelson was the concern that he may not be fair and impartial because he wore a shirt depicting a rap singer and former gang member, who was murdered. Perceived hostility is a valid, race-neutral concern. Anderson, supra. Recognizing the deference given to the trial court in evaluating discriminatory intent in peremptory challenges, we cannot say the court was clearly wrong in finding that the state’s explanation was race-neutral. The assignment of error lacks merit.

| JError Patent

Defendant’s final assignment of error is a request for this court to review the record for errors patent. This request is unnecessary since such a review is made automatically in criminal cases. State v. Bryant, 29,344 (La.App.2d Cir.5/7/97), 694 So.2d 556.

Our review of the record reveals one error patent. LSA-R.S. 14:95.1(B) provides that whoever is found guilty of possession of a firearm by a convicted felon shall be imprisoned for not less than ten years at hard labor without benefits and “be fined not less than one thousand dollars nor more than five thousand dollars.” In this case, the trial court imposed an illegally lenient sentence by failing to assess any fine. Pursuant to LSA-C.Cr.P. art. 882(A), an illegal sentence “may” be corrected at any time by the court that imposed the sentence or by an appellate court on review. However, as we recognized in State v. Griffin, 41,946 (La.App.2d Cir.5/2/07), 956 So.2d 199, this court is not required to take such action. The state has not objected to the error and defendant is not prejudiced in any way by the failure to impose the mandatory fine. Thus, considering the defendant’s apparent indigent status, we decline to remand the case for correction of the sentence to include such a fine.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: GASKINS, J.

text:
    Dexter L. DAVIS, Plaintiff-Appellant v. DELTA BANK and Paul Lebeau, Defendants-Appellees.
    No. 42,529-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 7, 2007.

      Dexter L. Davis, In Proper Person.
    James C. Crigler, Jr., McGlinchey Stafford, Monroe, for Appellees.
    Before BROWN, GASKINS and DREW, JJ.
   GASKINS, J.

LThe plaintiff, Dexter L. Davis, appeals a trial court ruling granting summary judgment in favor of the defendants, Delta Bank and Paul LeBeau, finding that the plaintiff could not establish a written agreement with the bank to borrow money for a tree nursery. The judgment also denied exceptions of no cause of action and no right of action filed by the plaintiff. For the following reasons, we affirm the trial court judgment.

FACTS AND PROCEDURAL HISTORY

This matter arises from protracted litigation by the plaintiff seeking to force the defendants to lend him money to start a tree nursery. The plaintiff is proceeding in proper person. In May 2004, the plaintiff filed suit against the defendants, Delta Bank and its loan officer, Paul LeBeau, for allegedly backing out of an agreement to lend the plaintiff $50,000.00 to start a tree nursery.

In June 2004, the defendants filed an exception of no cause of action, urging that there was no written contract to lend money to the plaintiff and that under La. R.S. 6:1122, the plaintiff has no cause of action on a credit agreement unless it is in writing.

A hearing was held on the defendants’ exception of no cause of action on September 9, 2004. The court also heard the plaintiffs motion to compel and motion for contempt, claiming that the defendants did not timely answer ⅛ requests for discovery- The trial court sustained the | ^exception of no cause of action and denied the plaintiffs motions to compel and for contempt. A judgment to that effect was signed September 29, 2004.

Meanwhile, the plaintiff had filed a first supplemental and amending petition in August 2004, urging that he entered into a crop loan agreement at the same time as the agreement to lend money for the tree nursery. He claimed that there was a written agreement which is in the possession of the bank. ■ The plaintiff alleged that the defendants attempted to withdraw the loan and hide evidence of it in order to punish him for orchestrating a protest march against various lending institutions.

In October 2004, the plaintiff filed a suspensive appeal from the trial court ruling of September 29, 2004, sustaining the defendants’ exception of no cause of action and denying the plaintiffs motions to compel and for contempt. The trial court made the appeal returnable 45 days from the payment of costs by the plaintiff.

In December 2004, the plaintiff filed a motion to proceed in forma pawperis. The trial court denied the motion, finding that the plaintiff had means to pay the costs of the court proceedings. However, the plaintiff was granted an extension to January 4, 2005, to pay the costs of the appeal.

In January 2005, the plaintiff filed a writ application with this court, objecting to the trial court’s denial of his motion to proceed in forma pauperis. We denied the writ application in March 2005, and the Louisiana Supreme Court denied the application in May 2005.

|3In June 2005, the plaintiff filed a motion to set the return date on his appeal. Pursuant to a motion filed by the defendants, on July 7, 2005, the trial court dismissed the plaintiffs appeal from the September 29, 2004 judgment, citing the plaintiffs failure to pay costs. On that same date, the trial court signed an order effectively denying the motion to set a return date in the appeal, citing the plaintiffs failure to establish his pauper status and his failure to pay court costs.

On July 5, 2005, the defendants filed a motion for summary judgment on the amended petition, claiming that their exception of no cause of action had been sustained on the original petition, that the plaintiff could not bring a suit to enforce an oral agreement to lend money, and that the plaintiff had not provided proof of a written agreement to lend money.

In September 2005, the plaintiff filed an exception of no cause and no right of action to the motion for summary judgment claiming that, because this matter was on appeal, the trial court was without jurisdiction to rule on the motion for summary judgment.

On September 19, 2005, the trial court signed a judgment rejecting the plaintiffs exceptions and granting the defendants’ motion for summary judgment. On October 28, 2005, the plaintiff filed a writ application with this court, asserting that the trial court could not rule on a motion for summary judgment while an appeal in the matter was pending. In December 2005, this court converted the writ application to the present appeal.

J^PENDING APPEAL

In his brief to this court, the plaintiff argues that the trial court erred in hearing a motion for summary judgment after an appeal had been granted. The plaintiff argues that in October 2004, he filed a motion to appeal the September 29, 2004 trial court judgment sustaining the defendants’ exception of no cause of action. The plaintiff claims his appeal divested the trial court of jurisdiction in this matter. He maintains that his appeal from the September 29, 2004 judgment was still pending when the trial court ruled on the defendants’ motion for summary judgment. This argument is without merit.

Discussion

The plaintiff contends that, because the trial court granted his appeal from the September 29, 2004 judgment, jurisdiction was divested and the court could not properly hear the defendants’ motion for summary judgment. The plaintiff seems to argue that his efforts to proceed in forma pauperis suspended the time for paying the costs of the appeal. He also claims that the defendants never filed a motion to dismiss his appeal for failure to pay costs.

The record in the present case shows that, while the plaintiffs motion to proceed in forma pauperis was under consideration in the trial court, the plaintiff filed a motion to reduce the costs of the appeal and to obtain an additional extension of time in which to pay the costs. Although the motion 1¡¡was filed late, the trial court found, on the merits, that the costs were reasonable.

The court recognized that the order for suspensive appeal was signed October 29, 2004 and notice of the estimated costs of the appeal was sent tq the plaintiff on November 24, 2004. La. C.C.P. art. 2126 provides that costs of the appeal are to be paid within 20 days of the mailing of notice of the costs. Upon application, the plaintiff was granted an extension until January 24, 2005 to pay costs.

The writ taken by the plaintiff on the denial of his motion to proceed in forma pauperis was denied by this court and then by the supreme court on May 20, 2005. That ruling became final on June 3, 2005. However, the plaintiff still did not pay the outstanding court costs. In response, the defendants filed a motion to dismiss the appeal for nonpayment of the costs. On July 7, 2005, the trial court signed orders dismissing the appeal for nonpayment and denying the plaintiffs motion to set the return date due to the dismissal of the appeal. Therefore, it appears that no appeal was pending at the time the motion for summary judgment was heard on September 2005.

However, if the initial appeal had still been pending, we note that it was only from the September 29, 2004 judgment granting the defendants’ exception of no cause of action on the ground that the plaintiff could not enforce a verbal agreement to loan money. La. C.C.P. art.2088, dealing | fiwith the divesting of jurisdiction of the trial court on appeals, specifies several instances in which the trial court retains jurisdiction. That article provides in pertinent part:

The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial ' court has jurisdiction in the case only over those matters not reviewable under the appeal,.... [Emphasis supplied.]

The statute then sets forth several instances in which the trial court retains jurisdiction. The plaintiff claims that none of the instances in the statute apply in this case.

The plaintiff amended his petition to allege that there was a written agreement in the possession of the bank. The allegations of the amended petition were not-included in the original judgment appealed by the plaintiff. The bank’s motion for summary judgment addresses the lack of any written agreement in its possession, which was raised in the amended petition. Because the allegations of the amended petition and the motion for summary judgment filed by the defendants concerned matters not included in the initial appeal, those matters were not reviewable in the plaintiffs appeal. Under La. C.C.P. art. 2088, the trial court retained jurisdiction over matters not reviewable under the pri- or appeal, including the defendants’ motion for summary judgment. See and compare Boudreaux v. Pipe Line Technologists, Inc., 426 So.2d 747 (La.App. 3d Cir.1983). Therefore, the plaintiffs prior appeal, even if it was still viable, would not have divested |7the trial court of jurisdiction in deciding the defendants’ motion for summary judgment.

MOTION FOR SUMMARY JUDGMENT

We also find that, on the merits, the trial court did not err in granting the motion for summary judgment in favor of the defendants.

Discussion

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App.2d Cir.1/25/06), 920 So.2d 355.

Initially, the movant bears the burden of proof. La. C.C.P. art. 966(C)(2). If the movant successfully meets this burden, then the burden shifts to the other party to present factual support adequate to establish that he/she will be able to satisfy the evidentiary burden at trial. If the other party fails to meet this burden, there is no genuine issue of material fact, and | ¿the movant is entitled to summary judgment as a matter of law. Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 2006-1827 (La.5/22/07), 958 So.2d 634.

The party opposing summary judgment cannot rest on the mere allegations or denials in his pleadings, but must show that he has evidence which, if believed, could satisfy his evidentiary burden of proof at trial. If he has no such evidence, then there is no genuine issue of material fact, and the movant is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., supra.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967. A trial judge cannot make credibility determinations on a motion for summary judgment. Independent Fire Insurance Company v. Sunbeam Corporation, 1999-2181, 1999-2257 (La.2/29/00), 755 So.2d 226; Hutchinson v. Knights of Columbus, Council No. 5717, 2003-1533 (La.2/20/04), 866 So.2d 228. In deciding a motion for summary judgment, the court must assume that all of the affiants are credible. Independent Fire Insurance Company v. Sunbeam Corporation, supra. The credibility of a witness is a question of fact. Hutchinson v. Knights of Columbus, Council No. 5747, supra.

The record shows that, in support of their motion for summary judgment, the defendants submitted affidavits from bank officers showing that the plaintiff applied for a $50,000.00 loan for a tree nursery, but that the Rloan application was denied. According to the defendants, the only written documentation in their possession is the loan application and the adverse action notice. Upon this showing, the burden shifted to the plaintiff to show the existence of a written agreement. He presented no evidence to show that a written agreement exists. Based on this showing, the trial court properly granted summary judgment in favor of the defendants.

CONCLUSION

For the reasons stated above, we affirm the trial court judgment dismissing the exceptions of no cause and no right of action filed by the plaintiff, Dexter L. Davis, claiming that the trial court was without jurisdiction to hear the defendant’s motion for summary judgment due to a pending appeal in this matter. We also find that the trial court was correct in granting summary judgment in favor of the defendants. Costs in this court are assessed to the plaintiff.

AFFIRMED.

      . La. R.S. 6:1122 provides:
      A debtor shall not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.

      . The plaintiffs continued failure to pay court costs and his quest to proceed in forma pau-peris resulted in a long delay in lodging the appeal in this court. Although the details are not relevant to the decision of the issue before this court, simply stated, the plaintiff eventually paid his pending court costs and was determined to be entitled to pauper status.

      . The plaintiff has made no showing that the motion to proceed in forma pauperis and the writs in connection with that issue suspended the time to perfect the appeal. Even if the time delays were suspended, the plaintiff still failed to pay costs timely.

      . We have held that an application to borrow money does not constitute a written loan agreement. Fleming Iirigation, Inc. v. Pioneer Bank and Trust Co., 27,262 (La.App.2d Cir.8/23/95), 661 So.2d 1035, writ denied, 95-2357 (La. 12/8/95), 664 So.2d 427. See also Jesco Construction Corporation v. Nationsbank Corporation, 2002-0057 (La. 10/25/02), 830 So.2d 989, and Fortenberry v. Hibernia National Baltic, 37,266 (La.App.2d Cir.8/20/03), 852 So.2d 1221, holding that the Louisiana Credit Agreement Statute precludes all actions for damages arising from oral credit agreements, regardless of the legal theory of recovery.


author: CARLSON, Justice,

text:
    Carl W. YOUNG v. R.D. “Dickie” STEVENS.
    No. 2007-EC-00986-SCT.
    Supreme Court of Mississippi.
    June 15, 2007.

      Samuel L. Begley, attorney for appellant.
    Willie Griffin, Greenville, attorney for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. Aggrieved by the Special Judge’s order declaring him to be disqualified to seek the position of Beat Two Supervisor in Humphreys County, Carl W. Young seeks relief from us via a Bill of Exceptions filed on June 13, 2007. By order entered on the same day, in light of the looming deadlines for finalizing the ballots, and pursuant to Miss.Code Ann. § 23-15-961(6) (Rev.2001), this Court has expedited this appeal. Finding the Special Judge’s duly entered Opinion and Order to be supported by the evidence and the law, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. Carl W. Young qualified to run in the Democratic Party primary for the office of Supervisor for Beat Two in Hum-phreys County. R.D. “Dickie” Stevens, the incumbent supervisor for Beat Two, filed an objection to Young’s candidacy. Stevens alleged that Young is not a resident of Beat Two and is therefore not qualified to run. The Humphreys County Democratic Executive Committee certified Young as a qualified candidate. Pursuant to Miss.Code Ann. § 23-15-961, Stevens sought judicial review of the Committee’s decision, and the Chief Justice, pursuant to section 23-15-961(5), promptly appointed Circuit Judge Billy Joe Landrum from the Eighteenth Judicial District as the special judge to hear this case. After a hearing conducted on June 8, 2007, the special judge entered his Opinion and Order of the Court declaring that Young was not a resident of Beat Two in Humphreys County and directing Young’s name to be removed from the ballot. We now consider this expedited appeal based on Young’s Bill of Exceptions, Stevens’s Amended Bill of Exceptions, the trial court clerk’s papers, the court reporter’s transcript of the trial court proceedings, and the briefs of the parties.

DISCUSSION

¶ 3. Having meticulously reviewed the record, we find Judge Landrum’s findings of fact to be wholly supported by the record, and we thus set out here verbatim those findings:

The Petitioner, [R.D. “Dickie”] Stevens, is a candidate for the position of Supervisor, Beat 2, Humphreys County, Mississippi. The Respondent, Carl W. Young (“Young”) has been qualified by the Humphreys County Democratic Executive Committee as a candidate for the position of Supervisor, Beat 2, Hum-phreys County, Mississippi.
Petitioner, Stevens, filed his appeal of the Humphreys County Democratic Executive Committee’s decision to qualify the Respondent, Young, in the form of a Petition for Judicial Review, and this Court was, thereafter, appointed to hear same.
The Respondent, Young, lived in Hum-phreys County as a child and until the time of his entry into Jackson State University in 1980, at which time he relocated to Jackson, Mississippi but continued to use his parents’ residence address as his own.
Between the time in 1980 that the Respondent, Young, attended Jackson State University and the present time, he has purchased several homes outside of Humphreys County, all of which have been located in Hinds County.
The Respondent, Young, registered to vote in Hinds County at some point after 1980. In 1995, Young apparently changed his voter registration to Hum-phreys County and was purged from the voter rolls in that county in 2002, after it came to the attention of persons unknown to the Court that he was a nonresident of Humphreys County. Sometime thereafter, Young voted in Hum-phreys County by affidavit ballot, and his name was added back to the voter rolls in that county for reasons unknown to the Court.
In 1996, the Respondent, Young, purchased a home at 855 Cherry Ridge, Clinton, Hinds County, Mississippi, MS, where he lived until he and his ex-wife separated on or about February 1, 1996. Respondent’s divorced (sic) was filed and granted in Hinds County.
Since 1996, Respondent, Young, has purchased two or three other homes in Hinds County, and as recently as January, 2007, Young purchased a vehicle tag in Hinds County, continuing to show the Clinton, MS, address.
In December, 2001, Young purchased a home at 1211 Wmterview Drive, Jackson, Hinds County, MS, where he admitted, under oath, he continues to reside with his wife and three children. Additionally, Young’s children attend a private school in Hinds County.
In January, 2007, Young changed the address on his driver’s license to his parents’ residence address in Hum-phreys County, and in April of 2007, he had the utilities at his parents’ home transferred into his name.
Young is employed with Information Technology Systems in Jackson, Hinds County, and his wife is employed in Ridgeland, Madison County.
In 2006, Young attempted to file homestead exemption using his parents’ residence address; said homestead exemption application was denied, as his mother had already claimed the exemption on the property.
Young claims that he has lived in a small “cottage” or “shed” next to his parents’ house but admitted under oath that the “cottage” or “shed” is currently uninhabitable. Young claims he has always considered Humphreys County his home and that he still has many social connections there and has contributed financially to a church there. Young also claims that he owns some property in Humphreys County, although the Court does not believe this is a fact that was proven in the hearing of this matter.

¶ 4. In a candidate qualification challenge, the standard of review for questions of law is de novo. Ladner v. Necaise, 771 So.2d 353, 355 (Miss.2000) (citing Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000)). Further, we review findings of fact by a trial judge sitting without a jury for manifest error, including whether the findings were the product of prejudice, bias, or fraud, or manifestly against the weight of the credible evidence. Boyd v. Tishomingo Co. Democratic Exec. Comm., 912 So.2d 124, 128 (Miss.2005) (citing Miss. Dep’t of Transp. v. Johnson, 873 So.2d 108, 111 (Miss.2004)).

¶ 5. Article 6, Section 176 of the Mississippi Constitution of 1890 sets out the residency requirements for a member of a county board of supervisors. Section 176 provides that in order to be eligible for that office, a person must be a resident of the district which he or she represents. Similarly, Miss.Code Ann. § 19-3-3 (Rev. 2003) requires residency within the county supervisor’s district. Miss.Code Ann. § 23-15-299(7) (Supp.2006) mandates that the proper executive committees of the political parties shall determine the qualifications of the candidates seeking office. The primary qualification requirement is “whether each candidate is a qualified elector of the state, state district, county or county district which they [sic] seek to serve....” In making the qualification determination, the committee is required to find that the candidate is a resident of the district or has shown by “absolute proof that he will, subject to no contingencies, meet all qualifications on or before the date of the general or special election at which he could be elected to office.” Id. See also Miss.Code Ann. § 23-15-359(9) (Supp.2006).

¶ 6. In Mississippi, residence and domicile are synonymous for election purposes. Hinds County Election Comm’n v. Brinston, 671 So.2d 667, 668 (Miss.1996). A person’s domicile in election matters is the place:

where he has his true, fixed, permanent home and principal establishment, and to which whenever he is absent, he has the intention of returning.... A domicile continues until another is acquired; before a domicile can be considered lost or changed, a new domicile must be acquired by removal to a new locality with intent to remain there, and the old domicile must be abandoned without intent to return thereto.

Smith v. Deere, 195 Miss. 502, 505-06, 16 So.2d 33, 34 (1943) (internal citations omitted).

¶ 7. After reviewing all of the evidence, we find that Young’s residence for election qualification purposes is his home in Jackson. He and his wife work in the Jackson area. His children attend school in Jackson. He has registered vehicles in Hinds County. Until very recently, his driver’s license listed a Jackson address. Though Young grew up in Humphreys County, claims ownership of property in Isola, regularly visits his mother there, has registered to vote and has in fact voted in Humphreys County, and has other contacts to the county, we find that the proof does not show that he maintains a permanent residence there. We find that the special judge was not manifestly wrong in determining that Young is a Hinds County resident.

¶ 8. Young claims that the special judge failed to give adequate weight to his decision to forego homestead on the houses he has owned in Hinds County. The general rule in this state is that there is a rebuttable presumption that one’s domicile and residence are where his homestead exemption is filed. See Hinds County Election Comm’n v. Brinston, 671 So.2d 667 (Miss.1996). Young’s attempt to file for homestead on the shed in Humphreys County was rejected. There is no presumption of residency in Humphreys County. Young now argues that since he never filed homestead in Hinds County, he therefore has not established residency in Hinds County. This Court recently held that a potential candidate’s decision to forego homestead exemption in the county of his apparent residence is not definitive for purposes of determining his legal residence. In Garner v. State Democratic Executive Comm., 956 So.2d 906 (Miss.2007) (mandate issued, June 14, 2007), we held that even though a candidate had declined to file for homestead in Hinds County, he was still a resident of Hinds County, given the overwhelming proof of his actual living arrangements. This Court has never held that a decision to forego homestead negates the otherwise obvious establishment of a domicile. We decline to do so today.

¶ 9. Young admits that he and his family do not physically reside in Humphreys County and that he has not lived there since approximately 1989. Yet he claims that he has always considered himself to be a resident of Humphreys County and that he has never established an official residence elsewhere. The proof clearly shows that Young has in fact established Hinds County as his domicile and residence. He has owned three houses in Hinds County. Prior to that, he lived in an apartment in Hinds County. He and his wife work in the Jackson area. Their three children live and go to school in Jackson. Before he changed his voter registration to Humphreys County in 1995, he was registered in Hinds County. He signed divorce papers in 1996 in which he swore that his marital residence was in Hinds County.

¶ 10. The Court recently considered a very similar residency- qualification contest in which the candidate in question claimed that for the preceding two years, he had been a resident of a Holmes County legislative district despite overwhelming evidence that he had actually resided elsewhere. He claimed that it was always his intent to return to the district. We held that the candidate had not shown that he was a resident of the district and his candidacy was prohibited. Edwards v. Stevens, 963 So.2d 1108 (Miss.2007) (mandate issued, June 6, 2007). In the case sub judi-ce, we find that Young’s claims that he has always considered himself to be a resident of Humphreys County are not sufficient to overcome the overwhelming proof that he' lives in Jackson, Hinds County, Mississippi. The determination of a person’s “permanent home and principal establishment” turns on actual proof of a person’s living arrangements. It is not satisfied with a simple declaration that one intends to be a resident of a particular county when the overwhelming proof shows that he actually resides elsewhere. It is not enough that Young considers himself an official resident of Humphreys County. He must actually reside there permanently.

¶ 11. Young also claims that, after his father’s death, he owns an interest in his mother’s homestead property through descent and distribution and that he is entitled to the presumption of residency in Humphreys County on that basis. The homestead statutes define the homestead as the dwelling “actually occupied as the primary home of a family group.” Miss. Code Ann. § 27-33-19 (Rev.2006). The primary home actually occupied by Young and his family is clearly the Jackson house and not the house where his mother lives. Again, we find that Young’s true, fixed, permanent home and principal establishment are in Jackson where he resides with his wife and children, and not in Hum-phreys County where his mother lives.

¶ 12. Finally, Young claims that as an employee of the State of Mississippi, he is a public officer and thus entitled to claim residency in Humphreys County. Young relies on Miss.Code Ann. § 25-1-61 (Rev. 2006) which provides:

All public officers of this state who are required to, or who for official reasons, remove from the county of them actual household and residence to another county of this state for the purpose of performing the duties of their office shall be deemed in law in all respects to be householders and residents of the county from which they so remove, unless such officer elects to become an actual householder and resident of the county to which he removed for official causes.

We find that Young is merely employed by the state and is clearly not a state officer. Miss.Code Ann. § 5-8-3(p) and (q) (Rev. 2002) provide definitions for state officials and state employees:

(p) “Public employee” means an individual appointed to a position, including a position created by statute, whether compensated or not, in state or local government and includes any employee of the public employee. The term includes a member of the board of trustees, chancellor, vice-chancellor or the equivalent thereof in the state university system or the state community and junior college system, and a president of a state college or university.
(q) “Public official” means an individual elected to a state or local office, or an individual who is appointed to fill a vacancy in the office.

While those definitions are provided in a chapter of the code dealing with lobbying reform and do not directly relate to election or residence matters, we find the definitions to be instructive here. Young is not a public officer or official and is not entitled to evade the residency requirements simply because he works for the State.

CONCLUSION

¶ 13. We find from the record before us that the special judge’s findings of fact were not manifestly in error inasmuch as his findings were not the product of prejudice, bias, or fraud, or manifestly against the weight of the credible evidence. Boyd, 912 So.2d at 128. Thus we unquestionably are compelled as a matter of well-established law to affirm Judge Landrum’s judgment finding Carl W. Young to be disqualified as a candidate and directing his name be removed from the ballot for Supervisor of Beat Two in Humphreys County, Mississippi.

¶ 14. In light of imminent ballot printing deadlines, under this Court’s authority to suspend the rules pursuant to M.R.A.P. 2(c), the Court finds that no motion for rehearing will be allowed and that this opinion shall be deemed final in all respects. The Court finds that the mandate in this matter should issue immediately.

¶ 15. The Court further finds that the Motion to Strike Bill of Exceptions filed by the appellee should be dismissed as moot.

¶ 16. AFFIRMED.

WALLER AND DIAZ, P.JJ., EASLEY, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. SMITH, C.J., NOT PARTICIPATING.

      . Article 6, Section 170, Mississippi Constitution of 1890 provides that “[e]ach county shall be divided into five districts, a resident freeholder of each district shall be selected, in the manner prescribed by law, and the five so chosen shall constitute the board of supervisors of the county, a majority of whom may transact business.”


text:
    The MISSISSIPPI BAR, Appellant v. Andrew L. NAUGLE, III, Appellee.
    No. 2006-BD-02123-SCT.
    Supreme Court of Mississippi.
    June 21, 2007.
   ORDER

This matter is before the Court en banc on the Formal Complaint filed by the Mississippi Bar, pursuant to Rule 6 of the Rules of Discipline for the Mississippi State Bar (MRD), seeking disbarment of attorney Andrew K. Naugle, III. Also before the Court is Naugle’s Notice of Irrevocable Resignation.

Naugle pleaded guilty on or about August 31, 2006, to felony Driving Under the Influence in violation of Miss.Code Ann. § 63-11-30 (Rev.2004). The Circuit Court of Lowndes County accepted Naugle’s plea in cause number 2004-0268-CR-l and sentenced him to serve five years in the custody of the Mississippi Department of Corrections, with three years suspended, two years to serve in the Intensive Supervision Program/House Arrest Program, and three years supervised probation. Naugle was also ordered to pay a supervision fee of $50 per month, all court costs and a $2,000 fine.

Thereafter, the Bar filed a Formal Complaint against Naugle on December 19, 2006, seeking the disbarment of Naugle based on his felony conviction and asking that he be ordered to pay costs. Counsel for Naugle acknowledged receipt of a summons and the Formal Complaint on January 2, 2007. On January 8, 2007, Naugle filed a Notice of Irrevocable Resignation, stating: “I do not desire to defend this matter. I hereby request permission to irrevocably resign with prejudice from the Mississippi Bar in accordance with Rule 10.5, MRD.” This notice was approved as to form by Naugle’s attorney.

MRD 6 provides, in relevant part:

(a) Whenever any attorney subject to the disciplinary jurisdiction of the Court shall be convicted in any court of any state or in any federal court, or enter a plea of guilty or a plea of nolo contende-re therein, or tender a guilty plea pursuant to the provisions of Miss.Code Ann. § 99-15-26 (Supp.1993), or any similar provision in state or federal law therein of any felony (other than manslaughter) ... a certified copy of the judgment of conviction or order accepting or acknowledging the offer or tender of a guilty plea ... or any similar provision in state or federal law shall be presented to the Court by Complaint Counsel and shall be conclusive evidence thereof. The Court shall then forthwith strike the name of the attorney and order his immediate suspension from the practice of law.
(d) When time for appeal from judgment or conviction provided above expires or all appeals have been concluded without reversal, Complaint Counsel shall certify that result to the Court, and the Court shall forthwith enter an order of disbarment.

Rule 6, MRD.

Furthermore, Rule 10.5, MRD, provides that, upon an attorney tendering an irrevocable resignation, this Court “shall enter its order accepting the resignation, revoking the attorney’s license, and barring forever thereafter the attorney’s right to seek reinstatement to the privilege of practicing law in this state.” As Naugle has filed a Notice of Irrevocable Resignation, this Court must enter an order disbarring him.

IT IS THEREFORE ORDERED that:

1. Andrew K. Naugle, III, is hereby DISBARRED from the practice of law in Mississippi.

2. This order shall constitute notice of disbarment in this cause.

3. The Clerk of the Supreme Court of Mississippi shall immediately forward an attested copy of this order to the Circuit Court Judges and Chancellors in and for Lowndes County, Mississippi, and the Senior Judge of each court shall enter this order upon the minutes of their respective courts.

4. The Clerk of the Supreme Court of Mississippi shall likewise immediately forward an attested copy of this order to the Clerks of the United States District Courts for the Northern and Southern Districts of Mississippi, the Clerk of the United States Court of Appeals for the Fifth Circuit, and the Clerk of the Supreme Court of the United States.

5.Costs of these proceedings are hereby assessed against Andrew K. Naugle, III.

SO ORDERED.

/s/ James E. Graves, Jr.

James E. Graves, Jr., Justice

All Justices Concur.