author: COOKS, Judge.

text:
    Randall MARKS v. 84 LUMBER COMPANY.
    No. 06-358.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Michael E. Holoway, Holoway Law, L.L.C., Mandeville, LA, for Plaintiff/Appellant, Randall Marks.
    Hugh B. Exnicios, Exnicios Legal Center, Folsom, LA, for PlaintiffiAppellant, Randall Marks.
    Lawrence B. Frieman, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Me-tairie, LA, for Defendant/Appellee, 84 Lumber Company.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   COOKS, Judge.

Bln this case, the claimant, Randall Marks, alleged he suffered a brain injury in 1992 during the course and scope of his employment. The case was first tried in 1999, and the Office of Workers’ Compensation (OWC) rendered a judgment which was appealed to this court in Marks v. 84 Lumber Company, 00-322 (La.App. 3 Cir. 10/11/00), 771 So.2d 751. We set forth the following relevant facts and procedural history:

Randall Marks, then 31, suffered a mild brain injury on April 16,1992, while he was employed as manager of the 84 Lumber Company store in Lafayette. He was attempting to load some lumber on a forklift. It is uncertain how the accident happened because Marks was loading the lumber by himself and does not remember any details. It is believed that he got hit on the head with a board. Marks’ fellow employee, who was working the front of the store at the time, came to look for him and found him in. a confused state and vomiting. His parents were called, and they took him to the hospital.
According to the hospital records, Marks was alert and oriented when he got there, but he had a severe headache and blurred vision. A red area was present on his left shoulder extending to the upper arm. There was also an area on his right groin that required a band aid. No discolorations or abrasions were noted on his head. Marks was admitted for observation overnight and was discharged the next day. Marks continued with symptoms of headaches, memory loss, and easy fatigability, in addition to neck, back, and leg pain.
Several months later, around August 1992, Marks began experiencing fainting spells, which in medical terms are known as “syncopal episodes.” These spells increased in frequency until he was experiencing 15 to 18 of them a day by the time of the trial of this case in 1999. Marks fell on his head so much that sometimes he required stitches, and it got to the point that his doctors suggested he wear a helmet to protect his head. The majority of the testimony during the eight-day trial focused on the cause of these syncopal episodes.
When the accident happened, Marks had been married for over ten years, he and his wife had two children and he had been employed for eight years, as manager for the last three, at his employer’s store. After the accident, he has not worked at all. He has lost his wife, custody of his children, his home, and, according to most doctors testifying, his self-esteem. The employer has paid benefits and all medical expenses (except for an occipital neurectomy in 1996).
|PIn detailed and well-analyzed reasons for judgment, the workers’ compensation judge found that “Marks had consciously and deliberately produced the large majority of his symptoms, specifically including the syncopal spells.” However, the trial judge believed that Marks had proved by clear and convincing evidence that he was suffering from a depression caused by the accident at work, which rendered him temporarily, totally disabled, and the court awarded benefits. The court found that he was not feigning the depression. The disability finding is appealed by 84 Lumber and its workers’ compensation insurer, Kemper Insurance Company. 84 Lumber and Kemper additionally appeal a ruling by the workers’ compensation judge that neither Marks nor his parents committed fraud to obtain benefits in violation of Louisiana Revised Statute 23:1208.

Id. at 752.

This court affirmed in full the findings of the OWC, finding the claimant was temporarily, totally disabled due to his depression, which was caused by the accident. We found the claimant was unable to prove by clear and convincing evidence that the syncopal episodes were caused by the accident. Claimant continued receiving temporary, total disability (TTD) benefits.

In 2001, the employer and workers’ compensation insurer requested additional testing of the claimant to support its assertion that he was no longer disabled. The WCJ ordered an independent medical examination of the claimant by Dr. Ron Ta-ravella, a Board Certified Psychiatrist. After the examination, Dr. Taravella rendered a report diagnosing claimant as suffering from “severe, totally disabling, completely work related post traumatic stress disorder (PTSD), complicated by depression.” Based on Dr. Taravella’s findings, the claimant petitioned the court to modify its original judgment to find claimant totally and permanently disabled as a result of the work-related PTSD, in addition to the depression which was previously found compensable. Claimant also requested penalties and attorney fees for the employer’s failure to pay medical expenses.

After a hearing, the WCJ determined that Dr. Taravella’s diagnosis of PTSD hwas not supported by the evidence or by any other mental health professional associated with the case. The WCJ concluded “[a]t best, Marks is at supplemental earnings benefits status.” The WCJ did render in claimant’s favor all reasonable and necessary medical expenses relating to the depression which was caused by his work injury. Claimant’s request for penalties and attorney fees was dismissed without prejudice to claimant’s right to re-urge the issues.

Claimant has appealed the judgment, contending the WCJ erred in failing to find him totally and permanently disabled, and in reclassifying him from TTD benefits status to SEB status. The employer answered the appeal, and argues it met its burden of proving that claimant no longer suffers from work-related depression or, in the alternative, proved any depression claimant is suffering from was not related to the work accident of April 16, 1992. It therefore requests this court reverse the portion of the judgment awarding reasonable and necessary medical expenses relating to any work-related depression.

ANALYSIS

An appellate court may not set aside the factual findings of a workers’ compensation judge in the absence of manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). “[W]here there is a 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.” Id. at 844. However, a reviewing court may reverse a fact finder’s determinations if such factual findings are not reasonably supported by the record and are clearly wrong. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993).

“An employee in a worker s compensation action has the burden of —I establishing a causal link between the work-related accident and the subsequent disabling condition." Miller v. Roger Miller Sand Inc., 94-1151, p. 6 (La.11/30/94), 646 So.2d 330, 334. An employee s disability is presumed to have resulted from the accident if before the accident, the injured employee was in good health, but commencing with the accident, symptoms of the disabling condition appeared and continuously manifested themselves after-wards. Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320 (La.1985). However, the presumption requires either that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and disabling condition, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection. Id.

The WCJ acknowledged claimant has serious mental problems, and that he has “made little progress since the last trial.” Claimant has attempted suicide on several occasions, including jumping from a parking garage which fractured his pelvis and femur. Claimant has also taken to wearing a football helmet at all times, to protect himself from the frequent head injuries he suffered due to his fainting episodes. Defendants submitted a surveillance video that showed claimant helping load bags, while wearing a football helmet, into his mother’s car in a store parking lot.

The WCJ set forth her conclusions in extensive written reasons, which stated as follows:

The WCJ finds that Marks is currently at supplemental earnings benefits disability status. This finding is based upon the testimony of Dr. Dawes and Dr. Wade. Dr. Taravella’s diagnosis of Post Traumatic Stress Syndrome was not supported by the evidence or by any other mental health professional associated with the case from its inception, so his testimony will be accorded no weight.
IfiDr. Dawes testified in his deposition that Marks suffers from major depression but his diagnosis is actually Mental Disorder Not Otherwise Specified because of the patient’s cognitive decline, severe anxiety and some degree of psychosis. He is treating the patient for continued depression, anxiety and psychosis, all of which he relates to the original work incident. His opinion is that Marks is totally disabled and will not return to work. He testified that Marks cannot work because his cognitive defects make it difficult for him to learn and a job would increase the frequency of his syncopal spells. However, if one were to put aside the cognitive deficits, syncope and headaches, Dr. Dawes believes Marks is still disabled from the depression alone. The cognitive deficits, syncope and headaches play a big role in the depression, and without them, he would be able to function at some degree and one day do some retraining and become more independent.
Dr. Larry Wade saw Marks on October 16, 2002, as the employer’s second opinion psychiatrist. In his report of October 23, 2002, Dr. Wade diagnosed malingering and adjustment disorder with mixed emotional features at Axis I, severe personality disorder not otherwise specified at Axis II and multiple self-inflicted musculoskeletal injuries at Axis III. Dr. Wade actually found Marks to be cheerful and witty throughout the interview, not manifesting any evidence of depression. Dr. Wade concluded that while Marks “probably is depressed to some extent” most of the claims of depression are malingered and any genuine depression is related to having painted himself into a corner.
Though the law in workers’ compensation cases typically requires that the opinions of the treating physician be given the greater weight, Dr. Wade discussed in both his report and his live testimony the difficulty of the treating physician acting as an expert witness in cases such as this where it is important for the treating physician to believe the patient’s reports, despite evidence to the contrary. He pointed to the testimony of Dr. Cloyd and Dr. Domingue, two “very competent clinicians” who maintained that Marks’ symptoms were genuine during their course as treating physicians, but who testified that Marks should have been diagnosed with malingering, factitious disorder or conversion disorder once they no longer acted as treating physicians.
Dr. Dawes acknowledged that he prefers to stick to treatment as opposed to acting as an expert witness but did not see how the situation could be avoided. He cares about his patient and admits there is a potential for viewing him in as favorable a light as possible, or giving him the benefit of the doubt. In his opinion Marks is not a malingerer, and he believes the syncopal spells are involuntary. Dr. Dawes testified that this is a very unusual case and he has never had another patient like this. And while Dr. Dawes acknowledged it was appropriate to seek out second or even third opinions on patients, particularly those that are difficult or challenging, he has not sought any consultations on Marks’ | ficase. He testified that he “did not believe that it would bring more clarity to this situation.”
Dr. Dawes’ opinions must be viewed in light of the laws of this case. No one questions that Marks has very serious mental problems, but the weight of the evidence in the first trial established very clearly that the work accident was not the cause of those problems. Marks produces those problems himself. The cognitive defects, syncope, headaches and psychosis are not compensable and must be taken out of the disability analysis. Miller v. Roger Miller Sand, Inc., 646 So.2d 330 (La.11/30/94), Baullion v. Old American Pottery Company, 801 So.2d 567 (La.App. 3 Cir. 11/21/01).
Marks’ most incapacitating symptoms are those that are non-compensable. The burden of establishing temporary, total disability is on the employee to prove by clear and convincing evidence, unaided by any presumption of disability, that the employee is pyhsically unable to engage in any employment or self-employment. LSA-R.S. 23:1221(l)(c). Similarly, the burden of proving permanent and total disability is on the employee to establish by clear and convincing evidence his physical inability to engage in any employment. LSA-R.S. 23:1221(2)(c). The WCJ finds that the evidence of total disability is not clear and convincing. Even Dr. Dawes ackowledges that without the symptoms that have been determined to be self-inflicted Marks could return to a functional life. Dr. Dawes’ testimony cannot be accepted in full as he is unable to objectively consider this case in light of the law of the case. This is in no way intended as criticism of Dr. Dawes, who appears to be dealing with this unique case as best he can.
■ At best, Marks is at supplemental earnings benefits status. However, as the employer is entitled to a credit for all sums earned, this is unlikely to entitle Marks to any future benefits, as the WCJ believes more than 520 weeks of benefits have been paid. The judgment will reflect the finding of supplemental earnings benefits status payable according to the law.

Claimant argues the WCJ committed manifest error in failing to give any weight to the testimony of the independent medical examiner, Dr. Taravella. Claimant also argues the WCJ erred in placing greater emphasis on the testimony of the defense psychiatrist, Dr. Wade, and in failing to give greater weight to the testimony of Dr. Dawes, claimant’s treating physician.

Dr. Taravella diagnosed claimant as totally and permanently disabled as a result of post traumatic stress disorder (PTSD), complicated by depression. The WCJ chose 17not to accept Dr. Taravella’s diagnosis of PTSD. She noted that none of the dozen or so other doctors who examined claimant believed he had PTSD. Rather than simply disregarding Dr. Taravella’s testimony, as claimant argues, the WCJ considered his findings but chose to accept the testimony of the numerous other doctors, including that of Dr. Dawes, that claimant did not suffer from PTSD.

La. R.S. 23:1123, which provides for the appointment of an IME when there is a conflict in the medical evidence, states that the report of the IME shall be prima facie evidence of the facts therein stated. This court has interpreted La. R.S. 23:1123 to mean that an IME’s medical conclusions should be given significant weight because the IME is an objective party. Fritz v. Home Furniture-Lafayette, 95-1705 (La.App. 3 Cir. 7/24/96), 677 So.2d 1132. Nevertheless, the opinion of the IME is not conclusive, and the WCJ must evaluate all of the evidence presented in making a decision as to the claimant’s condition. Jennings Am. Legion Hosp. v. Daigle, 01-621 (La.App. 3 Cir. 11/14/01), 801 So.2d 550, writ denied, 01-3294 (La.9/5/03), 852 So.2d 1038. The weight given to the testimony of an IME can be lesser or greater depending on the qualifications or expertise of the physician, the type of examination he performs, his opportunity to observe the patient, his review of other physicians’ examinations and tests, and any other relevant factors. Jennings, 677 So.2d 1132; Pujoe v. Stowe-Woodard, 40,044 (La.App. 2 Cir. 8/17/05), 911 So.2d 304, writ denied, 05-2365 (La.4/17/06), 926 So.2d 510; Green v. La. Coca Cola Bottling Co., Ltd., 477 So.2d 904 (La.App. 4 Cir.), writ denied, 478 So.2d 910 (La.1985).

It is imperative to note the difficulty any doctor has in rendering a definitive diagnosis in this case after seeing claimant on just one occasion, as both Dr. Taravella and Dr. Wade did. Without fail, every doctor who treated claimant noted the | ^extremely difficult and perplexing nature of his problems. It seems obvious in such a case that the need to rely on the treating physician is particularly high. Dr. Dawes, although finding claimant totally disabled due to his depression, did not find claimant met the criteria commonly found in PTSD cases. As stated previously, no other doctor found claimant suffered from PTSD. Therefore, we cannot say the WCJ erred in not accepting Dr. Taravella’s diagnosis of PTSD.

Although the WCJ did not accept Dr. Taravella’s diagnosis of PTSD, she did find that claimant’s depression was still present and that he was entitled to reasonable and necessary medical expenses to treat the depression. Despite finding that claimant still suffered from compensable depression, this court’s previous finding that claimant was totally disabled due to his depression and Dr. Dawes’s unequivocal testimony that claimant is still totally disabled from his depression, the WCJ found “at best, Marks is at supplemental earnings benefits status.” Claimant disputes this finding, noting that two of the three testifying physicians were of the opinion claimant was totally disabled and the defense offered “no countervailing evidence, particularly a dearth of clear and convincing evidence that Mr. Marks is employable pursuant to statutory mandate.” We agree.

The WCJ stated that “even Dr. Dawes acknowledges that without the symptoms that have been determined to be self-inflicted Marks could return to a functional life.” However, as the WCJ herself noted, Dr. Dawes maintained his long-held belief that claimant was still disabled from the depression alone. Dr. Dawes specifically stated that if claimant was able to control his depression, with retraining he could possibly become more independent and reenter the work force.

An award for TTD benefits “shall cease when the physical condition of the employee has resolved itself to the point that ... continued regular treatment by a 1 ¡¡physician is not required.” La.R.S. 23:1221(l)(d). Thus, entitlement to workers’ compensation benefits is based on the claimant’s ability or inability to earn wages. Newson v. Richard Spurgeon Masonry, 03-1367 (La.App. 3 Cir. 3/3/04), 867 So.2d 78, writ denied, 04-839 (La.5/14/04), 872 So.2d 523; Mitchell v. Abbeville Gen. Hosp., 93-1146 (La.App. 3 Cir. 4/6/94), 635 So.2d 540. This court has consistently held, without a change in medical condition or identification of jobs available which claimant could perform, an employer or workers’ compensation carrier has no basis upon which to change a workers’ compensation claimant’s classification from TTD benefits to SEB. See Newson, 867 So.2d 78; Joiner v. Newberg Venture, 94-1533 (La.App. 3 Cir. 5/3/95), 657 So.2d 206; White v. La. State Penitentiary, 93-770 (La.App. 3 Cir. 3/2/94), 634 So.2d 1271.

There was no evidence presented by the employer that claimant ever received any type of vocational treatment or training. Thus, the retraining that Dr. Dawes referenced as necessary for any possible reentry into the work force has not occurred. Further, no evidence has been offered that there are any jobs available which claimant could perform in his current condition. The employer fell woefully short of meeting its burden of showing claimant is physically capable of any type of work. Therefore, the WCJ erred in reclassifying claimant from TTD benefits to SEB. We therefore reinstate the prior ruling of this court that Marks is temporarily, totally disabled due to his depression.

The defendants’ argument that it met its burden of proving that claimant no longer suffers from work-related depression or, in the alternative, proved any depression claimant is suffering from was not related to the work accident of April 16, 1992 is without merit. No testimony, other than that provided by Dr. Wade, indicated that claimant’s depression has improved. The WCJ also noted that claimant 11nis entitled to a statutory presumption of causation that his depression was related to the work accident. Further, we find the balance of Dr. Wade’s testimony provided little that was not set forth in the prior trial.

DECREE

For the foregoing reasons, the portion of the judgment of the Office of Workers’ Compensation reclassifying claimant from temporary, total disability benefits status to supplemental earnings benefits status is reversed. Claimant is entitled to receive temporary, total disability benefits as a result of his depression which is attributed to the April 16, 1992, accident. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to defendants.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . The video was introduced by Defendants to counter claimant’s parents' testimony that their son required around-the-clock supervision. The video shows claimant walking from the store to his mother’s car on more than one occasion, with the mother nowhere in sight. What is plainly in sight is claimant walking to and from the store in a football helmet.

      . Defendants again presented the argument that Dr. Dawes could not provide unbiased testimony due to role as claimant's treating psychotherapist. Defendants made this same argument in the prior appeal, and this court addressed it as follows:
      The defendants asked us to find manifest error in the trial court’s reliance on the testimony of Drs. Dawes and Cole. Their argument is that these experts, notwithstanding that they were treating physicians, were virtually disqualified as least likely to give an accurate assessment of the plaintiff in the medical-legal setting because of their roles as treating psychotherapists. According to the defendants' argument, these experts were unable to diagnose malingering, and the trial judge was wrong to rely on their opinions regarding depression and its relationship to the work accident. In support of these arguments, the defendants relied upon an article which they introduced in evidence, Larry H. Strasburger, M.D., Thomas G. Gutheil, M.D., and Archie Brod-sky, B.A., On Wearing Two Hats: Role Conflict in Serving as Both Psychotherapists and Expert Witness, 154:4 American Journal of Psychiatry 448 (1997).
      In our opinion this article, while it questions whether the treating therapist is the right person to perform a forensic evaluation, warns more of ethical conflict and legal liability of the clinician/evaluator than it does of the risk of inaccuracy in testimony. The trial judge was fully aware of this article when she made her evaluations of the reliability of the testimony of these doctors. She believed that they accurately described Marks’ condition, and we find no basis on which to find error in that evaluation. We affirm the trial court’s conclusion that Marks proved by clear and convincing evidence that his depression was caused by the accident.

        Marks, 771 So.2d at 759.
      To accept defendants' argument that a physician cannot give objective testimony because he is the treating physician would ignore the long established rule that the treating physician’s testimony is entitled to greater weight than that of a doctor who has seen a patient simply for evaluation.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    STATE of Louisiana In the Interest of C.H.
    No. 06-336.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    L. Antoinette Beard, Lafayette, Louisiana, for Appellant, State of Louisiana, Department of Social Services.
    James D. Landry, Attorney at Law, Crowley, Louisiana, for Appellee, E. H.
    Brett A. Stefanski, Attorney at Law, Crowley, Louisiana, for Appellee, C. H.
    Thomas B. Harrington, Jr., Attorney at Law, Crowley, Louisiana, for Appellee, L. T.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

|-The State of Louisiana appeals the trial court’s division of legal custody and physical custody of a child between the Department of Social Services and one of the child’s parents. We reverse.

Facts

The minor, C.H., came into the custody of the Louisiana Department of Social Services (State) on October 28, 2004, by an Oral Instanter Order that was confirmed in writing the following day. Subsequently, C.H. was adjudicated a child in need of care.

Three review hearings were held on April 11, 2005, October 17, 2005, and December 5, 2005. C.H. was continued in the custody of the State at the first hearing. At the October 17 hearing, the trial court ordered that C.H. “be continued in the custody of the [State] for the next six months.” However, the trial court also ordered that “physical custody of [C.H.] is placed with her father at the beginning of the Christmas school holiday in December.” Thereafter, at the hearing held on December 5, the trial court again ordered that the legal and physical custody of C.H. be split, maintaining legal custody of the child with the State until February 13, 2006, but granting physical custody of the child to the father as of December 17, 2005. The trial court further ordered that the legal custody of C.H. be placed with her father on February 13, 2006.

On December 15, 2005, the State filed a “Notice of Intent to Apply for Supervisory Writs” and a “Motion and Order to Stay Pending Application for Supervisory Writs.” The trial court denied the State’s request for a stay. The State timely filed a writ application with this court on January 13, 2006, which was denied. | ?See State of Louisiana in the Interest of C.H., an unpublished writ bearing docket JWC 06-47 (La.App. 3 Cir. 1/30/06). This appeal followed.

Discussion

The basis of this appeal is La. Ch. Code art. 672(B) which provides in pertinent part: “The court shall not divide legal and physical custody whenever assigning custody to a department in accordance with this Article, Articles 619, 622, 627, 681, 700, or 716, or any other statute or provision of law.” This court upheld the mandate of Article 672 in N.B. v. State Department of Social Services, 94-647 (La.App. 3 Cir. 11/2/94), 649 So.2d 591, observing that Article 672 was amended after the Fourth Circuit Court of Appeal held in State in the Interest of M.L., 611 So.2d 658 (La.App. 4 Cir.1992), writ denied, 613 So.2d 977 (La.1993), that the legal and physical custody of a child in the custody of the State could be divided between the State and another party. This court held: “Article 672 as amended no longer permits a division of legal and physical custody to a department in accordance with Article 672, Article 619, 681, 700 or 716 or, any other statute or provision of law.” N.B., 649 So.2d at 592.

The trial court’s judgment assigning legal custody to the State and physical custody to the father violates the mandate of Article 672(B) and must be reversed.

Disposition

The judgment of the trial court is reversed, and this case is remanded for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.


text:
    STATE of Louisiana v. Fay V. PEREZ, III.
    No. 06-436.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Mark 0. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant Fay V. Perez, III.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

[ -i Defendant, Fay V. Perez, III, originally faced over sixty counts of aggravated criminal damage to property, violations of La.R.S. 14:55. Pursuant to a plea agreement, Defendant pleaded guilty to ten counts, and the State moved to dismiss the remaining counts. In accordance with State v. Crosby, 338 So.2d 584 (La.1976), Defendant reserved his right to appeal the issue of payment of restitution to the victims’ insurance companies, should that condition be made part of his sentence.

Defendant was subsequently sentenced in docket number 41543 to five years at hard labor, suspended. The trial court ordered that Defendant be placed on supervised probation for five years, with the condition that he perform 150 hours of community service per year for five years. This condition applied to only this sentence. In accordance with the plea agreement, Defendant was further ordered to make restitution at the rate of not less than $181.35 per month for 119 months, which was an aggregate amount covering all the victims, including those in the dismissed charges. This condition of probation was imposed for all ten sentences.

In docket number 41544, Defendant was sentenced to five years at hard labor, suspended, with Defendant being placed on supervised probation for five years, to run consecutively to the sentence imposed in docket number 41543.

In docket number 41545, Defendant was sentenced to serve five years at hard labor, suspended, with Defendant being placed on five years of supervised probation, |gto run concurrently with the sentence imposed in 41544, but consecutively to 41543, and with the same conditions imposed in 41543, On each of the remaining docket numbers, 41547, 41548, 41549, 41550, 41551, 41552 and 41553, the trial court imposed a five-year sentence at hard labor, suspended, with Defendant being placed on supervised probation for five years, to run concurrently with docket number 41544. The trial court also imposed general conditions of probation.

Defendant is before this court appealing his sentences. Specifically, he contends that an insurance company does not fall within the definition of “victim” for purposes of La.Code Crim.P. art. 895.1. However, as discussed below, we find an error patent that requires the ease to be remanded for an evidentiary hearing, which pretermits a discussion of Defendant’s assigned error.

Pacts

Because Defendant entered a guilty plea, the facts are taken from the transcript of that proceeding. According to the transcript, during the months of November and December of 2003, and January of 2004, Defendant threw rocks or concrete at the victims’ properties, when it was foreseeable that human life might be endangered.

Errors Patent

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. After reviewing the record, we have found one error patent that affects the legality of the sentences imposed.

As noted above, the trial court imposed restitution to victims of offenses other than those to which Defendant pleaded guilty. In State v. Thomas, 05-1051, p. 11 (La.App. 3 Cir. 3/1/06), 924 So.2d 1146, 1153 (quoting State v. Labure, 427 So.2d 855, 857 (La.1983)), this court characterized such an order as “patently erroneous.” |3Further, because the plea agreement could have been invalidated by the vacation of the restitution order concerning victims of other charges, this court remanded the case “for an evidentiary hearing to determine the specific elements of the plea agreement.” Id. at 1147. Before concluding this was the proper course of action, this court explained:

If the State relied upon the Defendant’s agreement to pay restitution to victims in “all of the cases and not one, two or three,” an invalidation of the restitution orders to Martini’s and La-Normandie may invalidate the State’s agreement to the Defendant’s plea. The supreme court addressed plea agreements, and stated that:
In determining the validity of agreements not to prosecute or of plea agreements, the courts generally refer to rules of contract law. State v. Nall, 379 So.2d 731 (La.1980); State v. Lewis, 539 So.2d 1199 (La.1989) .... we refer first to the law of contracts for application by analogy in determining whether a contract was formed. A contract is formed by the consent of the parties established through offer and acceptance. La.Civ.Code art. 1927.
State v. Louis, 94-0761, pp. 7-10, (La.11/30/94), 645 So.2d 1144, 1148-49. In the instant case, the State’s offer may have involved the restitution orders as imposed. However, the record is unclear as to the specific terms of the agreement, beyond those set forth in the record of the plea hearing as discussed above. Thus, we remand to the trial court to determine the nature of the agreement, and whether the entire plea agreement is invalidated by the vacation of the restitution to Martini’s and La-Normandie.

Id. at 1154.

In the instant case, as in Thomas, the specific terms of the plea agreement are not clear from the record. Accordingly, this court will vacate the condition of probation requiring Defendant to pay restitution for the aggregate damages suffered by all victims and will remand the case for an evidentiary hearing to determine the |4nature of the plea agreement and whether the entire agreement is invalidated by the vacation of the restitution to victims of the offenses to which Defendant did not plead guilty. See Thomas, 924 So.2d 1146.

Assignment of Error

Defendant argues that the trial court erred in ordering him to pay the victims’ insurance companies as part of his restitution. We find that this issue is pretermit-ted by our vacating of the condition of probation for the payment of restitution to victims of offenses to which Defendant did not plead guilty.

Decree

For the above reasons, the condition of probation requiring Defendant to pay restitution to victims other than those of the offenses to which he pleaded guilty is vacated, and the case is remanded for an evidentiary hearing to determine the specific elements of the plea agreement and whether the entire agreement is invalidated. The trial court should also advise Defendant again of the time limitation for filing an application for post-conviction relief, if necessary.

SENTENCE VACATED IN PART; REMANDED.

      . Although the trial court did not mention the restitution payments as a condition of probation when imposing any sentences beyond the first two, it appears that the trial court intended this to apply to each of the sentences. Each of the guilty plea forms lists the restitution payments as a condition of probation. (Some of the forms indicate that the monthly rate is to be determined by the probation officer while others state that this rate is to be determined by the trial court. Nonetheless, the trial court set the minimum rate at the sentencing proceeding.)

      . The trial court stated the docket number for this sentence was 41544; however, it appears that the trial court was actually referring docket number 41545 because it had previously imposed sentence in 41544 and it proceeded to impose sentence on the next docket number, which was 41547.

      . In Thomas, as in the present case, the defendant was aware that restitution was being made to victims of crimes other than those to which he pleaded guilty and made no objection. In the present case, Defendant actually agreed to such terms.


text:
    STATE of Louisiana v. Fay V. PEREZ, III.
    No. 06-437.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Michael Harson, District Attorney, Ted L. Ayo, Assistant District Attorney, Abbe-ville, Louisiana, for State of Louisiana.
    Mark O. Foster, Louisiana Appellate Project, Natchitoches, Louisiana, for Defendant/Appellant, Fay V. Perez, III.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

For the reasons assigned in State v. Perez, 06-436 (La.App. 8 Cir. 9/27/06), 939 So.2d 733, 2006 WL 2773888, the condition of probation requiring Defendant to pay restitution to victims other than those of the offenses to which he pleaded guilty is vacated, and the case is remanded for an evidentiary hearing to determine the specific elements of the plea agreement and whether the entire agreement is invalidated. The trial court should also advise Defendant again of the time limitation for filing an application for post-conviction relief, if necessary.

SENTENCE VACATED IN PART; REMANDED.


text:
    STATE of Louisiana v. Fay V. PEREZ, III.
    No. 06-438.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Michael Harson, District Attorney, Ted L. Ayo, Assistant District Attorney, Abbe-ville, Louisiana, for State of Louisiana.
    Mark O. Foster, Louisiana Appellate Project, Natchitoches, Louisiana, for Defendant/Appellant Fay V. Perez, III.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

For the reasons assigned in State v. Perez, 06-436 (La.App. 3 Cir. 9/27/06), 939 So.2d 733, 2006 WL 2773888, the condition of probation requiring Defendant to pay restitution to victims other than those of the offenses to which he pleaded guilty is vacated, and the case is remanded for an evidentiary hearing to determine the specific elements of the plea agreement and whether the entire agreement is invalidated. The trial court should also advise Defendant again of the time limitation for filing an application for post-conviction relief, if necessary.

SENTENCE VACATED IN PART; REMANDED.


text:
    STATE of Louisiana v. Fay V. PEREZ, III.
    No. 06-439.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Michael Harson, District Attorney, Ted L. Ayo, Assistant District Attorney, Abbe-ville, Louisiana, for State of Louisiana.
    Mark O. Foster, Louisiana Appellate Project, Natchitoches, Louisiana, for Defendant/Appellant, Fay V. Perez, III.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

For the reasons assigned in State v. Perez, 06-436 (La.App. 3 Cir. 9/27/06), 939 So.2d 733, 2006 WL 2773888, the condition of probation requiring Defendant to pay restitution to victims other than those of the offenses to which he pleaded guilty is vacated, and the case is remanded for an evidentiary hearing to determine the specific elements of the plea agreement and whether the entire agreement is invalidated. The trial court should also advise Defendant again of the time limitation for filing an application for post-conviction relief, if necessary.

SENTENCE VACATED IN PART; REMANDED.


text:
    STATE of Louisiana v. Fay V. PEREZ, III.
    No. 06-440.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Michael Harson, District Attorney, Ted L. Ayo, Assistant District Attorney, Abbe-ville, Louisiana, for State of Louisiana.
    Mark O. Foster, Louisiana Appellate Project, Natchitoches, Louisiana, for Defendant/Appellant Fay V. Perez, III.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

For the reasons assigned in State v. Perez, 06-436 (La.App. 3 Cir. 9/27/06), 939 So.2d 733, 2006 WL 2773888, the condition of probation requiring Defendant to pay restitution to victims other than those of the offenses to which he pleaded guilty is vacated, and the case is remanded for an evidentiary hearing to determine the specific elements of the plea agreement and whether the entire agreement is invalidated. The trial court should also advise Defendant again of the time limitation for filing an application for post-conviction relief, if necessary.

SENTENCE VACATED IN PART; REMANDED.


text:
    STATE of Louisiana v. Fay V. PEREZ, III.
    No. 06-441.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Michael Harson, District Attorney, Ted L. Ayo, Assistant District Attorney, Abbe-ville, Louisiana for State of Louisiana.
    Mark O. Foster, Louisiana Appellate Project, Natchitoches, Louisiana, for Defendant/Appellant Fay V. Perez, III.

      Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

For the reasons assigned in State v. Perez, 06-436 (La.App. 3 Cir. 9/27/06), 939 So.2d 733, 2006 WL 2773888, the condition of probation requiring Defendant to pay-restitution to victims other than those of the offenses to which he pleaded guilty is vacated, and the case is remanded for an evidentiary hearing to determine the specific elements of the plea agreement and whether the entire agreement is invalidated. The trial court should also advise Defendant again of the time limitation for filing an application for post-conviction relief, if necessary.

SENTENCE VACATED IN PART; REMANDED.


text:
    STATE of Louisiana v. Fay V. PEREZ, III.
    No. 06-442.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Michael Harson, District Attorney, Ted L. Ayo, Assistant District Attorney, Abbe-ville, LA, for State of Louisiana.
    Mark O. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Fay V. Perez, III.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

For the reasons assigned in State v. Perez, 06-436 (La.App. 3 Cir. 9/27/06), 939 So.2d 733, 2006 WL 2773888, the condition of probation requiring Defendant to pay restitution to victims other than those of the offenses to which he pleaded guilty is vacated, and the case is remanded for an evidentiary hearing to determine the specific elements of the plea agreement and whether the entire agreement is invalidated. The trial court should also advise Defendant again of the time limitation for filing an application for post-conviction relief, if necessary.

SENTENCE VACATED IN PART; REMANDED.


text:
    STATE of Louisiana v. Fay V. PEREZ, III.
    No. 06-443.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Michael Harson, District Attorney, Ted L. Ayo, Assistant District Attorney, Abbe-ville, Louisiana, for State of Louisiana.
    Mark 0. Foster, Louisiana Appellate Project, Natchitoches, Louisiana, for Defendant/Appellant, Fay V. Perez, III.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

For the reasons assigned in State v. Perez, 06-436 (La.App. 3 Cir. 9/27/06), 939 So.2d 733, 2006 WL 2773888, the condition of probation requiring Defendant to pay restitution to victims other than those of the offenses to which he pleaded guilty is vacated, and the case is remanded for an evidentiary hearing to determine the specific elements of the plea agreement and whether the entire agreement is invalidated. The trial court should also advise Defendant again of the time limitation for filing an application for post-conviction relief, if necessary.

SENTENCE VACATED IN PART; REMANDED.


text:
    STATE of Louisiana v. Fay V. PEREZ, III.
    No. 06-444.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Michael Harson, District Attorney, Ted L. Ayo, Assistant District Attorney, Abbe-ville, Louisiana, for State of Louisiana.
    Mark O. Foster, Louisiana Appellate Project, Natchitoches, Louisiana, for Defendant/Appellant, Fay V. Perez, III.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

For the reasons assigned in State v. Perez, 06-436 (La.App. 3 Cir. 9/27/06), 939 So.2d 733, 2006 WL 2773888, the condition of probation requiring Defendant to pay restitution to victims other than those of the offenses to which he pleaded guilty is vacated, and the case is remanded for an evidentiary hearing to determine the specific elements of the plea agreement and whether the entire agreement is invalidated. The trial court should also advise Defendant again of the time limitation for filing an application for post-conviction relief, if necessary.

SENTENCE VACATED IN PART; REMANDED.


text:
    STATE of Louisiana v. Fay V. PEREZ, III.
    No. 06-445.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Michael Harson, District Attorney, Ted L. Ayo, Assistant District Attorney, Abbe-ville, Louisiana, for State of Louisiana.
    Mark 0. Foster, Louisiana Appellate Project, Natchitoches, Louisiana, for Defendant/Appellant, Fay V. Perez, III.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

For the reasons assigned in State v. Perez, 06-436 (La.App. 3 Cir. 9/27/06), 939 So.2d 733, 2006 WL 2773888, the condition of probation requiring Defendant to pay restitution to victims other than those of the offenses to which he pleaded guilty is vacated, and the case is remanded for an evidentiary hearing to determine the specific elements of the plea agreement and whether the entire agreement is invalidated. The trial court should also advise Defendant again of the time limitation for filing an application for post-conviction relief, if necessary.

SENTENCE VACATED IN PART; REMANDED.


text:
    Randy Cal LINDSEY v. STATE of Mississippi.
    No. 2003-KA-00331-SCT.
    Supreme Court of Mississippi.
    March 17, 2005.
    Rehearing Denied Feb. 9, 2006.

      Edmund J. Phillips, Jr., Appellant, pro se.
    Office of the Attorney General by Scott Stuart, Attorney for Appellee.
    Before WALLER, P.J., GRAVES AND DICKINSON, JJ.
   WALLER, Presiding Justice, for the Court:

¶ 1. Randy Cal Lindsey appeals from his conviction in Scott County Circuit Court of burglary of a business and his sentence as a habitual offender to seven years without parole in the custody of the Mississippi Department of Corrections. Lindsey’s appellate attorney filed a brief arguing that Lindsey’s appeal is without merit and cited to our decision in Turner v. State, 818 So.2d 1186, 1189 (Miss.2001) (providing procedure to be followed by attorneys who believe indigent client’s appeal has no merit), overruling Killingsworth v. State, 490 So.2d 849 (Miss.1986). Lindsey now comes before the Court pro se.

FACTS

¶ 2. After being dispatched to Cox’s Chevron in response to a burglary alarm, Officers Will Jones and Russell Ellis of the Forest Police Department discovered that someone had broken the glass in the front door with a brick and stolen seven cartons of Marlboro cigarettes. Upon arriving at the scene around 5 a.m., Ellis questioned Fonzy Odom, who was standing in the area. Odom told Ellis he had seen two black males at the scene and indicated the men went down West Fourth Street. After going down the street, Ellis noticed Randy Lindsey under a car port and tried to question him. When Lindsey behaved defensively, Ellis took him into custody. Upon returning to the car port to investigate, Ellis discovered seven cartons of Marlboro cigarettes inside a stack of tires close to where Lindsey had been standing when Ellis spotted him.

¶ 3. The surveillance tape revealed that the person who stole the cigarettes wore the same outfit that Lindsey was wearing that morning. Furthermore, after the police took Odom into custody, he altered his previous statement and told the police that after the two black males ran off, Lindsey came up with the cigarettes in hand and said, “Fonzy, I got what you need.”

¶ 4. At trial, Lindsey admitted taking the cigarettes, but denied breaking into Cox’s Chevron. He explained,

I went behind the Chevron and used the bathroom. As I was getting ready to come around the corner the alarm went off, so I panicked at first, and I said, Well, hey, I ain’t did nothing [sic].’... So, when I go around front I see the front glass broken, and I said, Well, s* * *, this is opportunity[.]’ So I squatted down and went on into the store ... and got some cigarettes and ran behind the store to a friend’s house[.]

¶ 5. The following exchange took place between the prosecutor and Lindsey regarding Lindsey’s partial admission.

MR. TURNER: [I]f I understand your story correctly, you’re saying somebody else just came by and did the breaking for you, but they just — they didn’t go in. So, you fortuitously came by and saw the door had already been broken and said, ‘Well, if I can sell that to a jury if I get caught, the worst thing they’ll get me for is maybe just a little petty larceny or something.’ Is that kind of what your thinking process was?
MR. LINDSEY: No sir, that’s not my thinking process. When I came around the building you could see someone else leaving. I didn’t know if it was the two men or what, but you could kind of tell from the corner there was somebody running ... away. So, that was my chance to get me some cigarettes[.]

¶ 6. The State presented no evidence revealing who broke the glass door with the brick. After the State rested, Lindsey’s trial counsel moved for a directed verdict, arguing the State failed to prove all the elements of burglary beyond a reasonable doubt. The trial court overruled the objection, and after presentation of the defense, the jury unanimously found Lindsey guilty of burglary. Lindsey’s attorney filed a brief purportedly complying with the Turner decision and notified Lindsey of his right to file a brief pro se.

ANALYSIS

¶ 7. In his pro se brief, Lindsey raises several grounds of reversible error: (1) he has unconstitutionally been denied assistance of counsel at the appellate stage; (2) the State failed to prove beyond a reasonable doubt Lindsey committed the crime of burglary; (3) the trial court committed various errors in denying a continuance as well as denying him a trial transcript; (4) he received ineffective assistance of counsel at trial; and (5) the Mississippi Supreme Court “error [sic].by not entertaining. petitioner [sic] unexhaustion [sic] claim.” Finding additional briefing warranted in accord with Lindsey’s complaints regarding issue one, we direct further briefing consistent with this opinion.

¶ 8. Lindsey cites the Fourteenth Amendment as well as applicable Supreme Court precedent and essentially complains pro se that he has been denied his constitutional right to counsel as a result of his attorney’s failure to properly represent him before this Court. The State acknowledges the legitimacy of Lindsey’s argument, and in its response, highlights the unconstitutionality of our procedure for addressing potentially frivolous claims of indigent defendants. We therefore find Lindsey has adequately raised the issue and address this argument on its merits.

¶ 9. In Smith v. Robbins, 528 U.S. 259, 273-74, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), the United States Supreme Court, speaking through ■ Justice Thomas, stated that although the Court had previously laid down a “prophylactic framework” to vindicate the Fourteenth Amendment right to appellate counsel, it “expressly disclaimed any pretensions to rulemaking authority for the States in the area of indigent criminal appeals.” Instead, the Court stated, “States may — and, we are confident, will — craft procedures that, in terms of policy, are superior to, or at least as good as” the framework the Court introduced in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

¶ 10. Before reviewing California’s procedure, the Court stated,

[I]t is important to focus on the underlying goals that the procedure should serve — to ensure that those indigents whose appeals are not frivolous receive the counsel and merits brief required by Douglas, and also to enable the State to ‘protect itself so that frivolous appeals are not subsidized and public moneys are not needlessly spent.’... For although, under Douglas, indigents generally have a right to counsel on a first appeal as of right, it is equally true that this right does not include the right to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing a frivolous appeal.

Robbins, 528 U.S. at 277-78, 120 S.Ct. 746 (citations omitted).

¶ 11. In its survey of the procedures which it has found unconstitutionally inadequate in past cases, the Court noted four instances in which it had found State procedures to be inappropriate: (1) when the procedure requires that a defendant be “unlikely to prevail on appeal,” rather than requiring the appellate court or counsel to find the appeal is frivolous; (2) when a procedure permits appellate counsel to withdraw his or her representation of the indigent defendant and the appellate court decide the appeal without appointing new counsel; (3) when the procedure allows appellate counsel to submit a letter asserting the “bare conclusion” that the appeal is without merit; and (4) when the procedure only provides one level of review. Id. at 279, 120 S.Ct. 746.

¶ 12. In Turner, we approved the following procedure for use when defendant’s appellate counsel believes an indigent defendant’s appeal to be frivolous:

The appellate counsel must:

(1) determine that the defendant is “unlikely to prevail on appeal.”
(2) file a brief indicating “that he scoured the record thoroughly[J” and “refer[] to anything in the record that might arguably support the appeal[,]” and
(3) advise client of his right to file a pro se supplemental brief.
At this point, the appellate court shall then make its own independent review of the record, in the manner followed in all other cases.

Turner, 818 So.2d at 1189 (citations omitted).

¶ 13. Today, based on the sound logic and admonition of the Supreme Court’s holding in Robbins, we overrule Turner in part.

¶ 14. First, by requiring appellate counsel to determine the client is merely “unlikely to prevail on appeal,” we inadvertently endorsed one of the very problems which the Supreme Court found to render such a procedure unconstitutional. It is more than a matter of semantics that led the Robbins Court to draw a distinction between a claimant who is unlikely to prevail on appeal and one whose claims are altogether frivolous. A claim is frivolous when it is “lacking in arguable issues.” Robbins, 528 U.S. at 279-80, 120 S.Ct. 746. Although Lindsey may indeed be unlikely to prevail in this appeal, that does not mean his arguments reach the level of frivolity (i.e. that he presents no arguable issues), and requiring his attorney to make such an argument explicitly violates Robbins.

¶ 15. The second problem with the Turner procedure is less obvious than the first. According to Robbins, a procedure is unconstitutional where either the appellate court allows counsel to withdraw before the court determines whether the appeal is frivolous or where a procedure makes no provision for the court to receive a brief on the merits after finding arguable issues. Id. at 280, 120 S.Ct. 746. Under Turner, when appellate counsel files a brief with the appellate court, the client is concurrently advised of his or her right to file a pro se brief. Turner, 818 So.2d at 1189. Thereafter, the appellate court must “make its own independent review of the record.” Id. This procedure potentially leaves the impression that once the attorney has filed the Ttimer brief, he or she is discharged of his or her duty to represent the indigent client. It is true that Turner does not explicitly state the attorney is relieved of his or her duties prior to the appellate court’s determination of whether defendant’s appeal is frivolous. But neither does the Turner rule expressly state there is any further obligation after the attorney has submitted the appellate brief, even if a nonfrivolous issue exists in the record.

¶ 16. In the case at hand, Lindsey’s appellate counsel filed a one-and-a-half page brief on his behalf, merely asserting that he had complied with Turner and that he regarded Lindsey’s appeal to be without merit since it was “unlikely to prevail on appeal.” He then requested twenty-five days for Lindsey to file a pro se brief. The brief filed on behalf of Lindsey was deficient even under Turner since it did not refer to “anything in the record that might arguably support the appeal.” Turner, 818 So.2d at 1189. However, it is understandable how Turner’s requirement that the attorney determine his client is “unlikely to prevail on appeal” lends itself to the assumption by attorneys that they have no obligation to make further contentions in their briefs to the appellate court. We conclude the better practice is to have a procedure which requires supplemental briefing where appellate counsel has filed an inadequate brief. Robbins, 528 U.S. at 280, 120 S.Ct. 746 (citing Anders v. California, 386 U.S. at 740, n. 2, 87 S.Ct. 1396 and People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, 1075 n. 3 (1979)).

¶ 17. We therefore overrule Turner in part, rectifying the constitutional problems with our procedure governing appeals by indigent criminal defendants. We first note that, under the sound guidance of the Supreme Court, we refrain from replacing the requirement that appellate counsel determine that defendant is “unlikely to prevail on appeal” with a requirement that appellate counsel determine that all of the client’s claims are frivolous. The Court rightly noted the conundrum faced by appellate attorneys forced to make any assertions under An-ders procedures about the frivolity of their client’s argument: “[There is] some tension both with counsel’s ethical duty as an officer of the court (which requires him not to present frivolous arguments) and also with his duty to further his client’s interests (which might not permit counsel to characterize his' client’s claims as frivolous).” Robbins, 528 U.S. at 281-82, 120 S.Ct. 746 (footnote omitted); see also Miss. R. Profl Conduct 3.1 & cmt. (2004) (barring attorneys from making frivolous arguments and defining such arguments as those where attorney is “unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.”). The Court then commended California’s effort to rectify this problem by (1) “not requiring counsel to explicitly describe the case as frivolous” and (2) by allowing attorneys who determine that a case is frivolous to limit their briefs to a statement of the facts and applicable law. Robbins, 528 U.S. at 282, 120 S.Ct. 746 (citing People v. Wende, 158 Cal.Rptr. 839, 600 P.2d at 1073).

¶ 18. In accord with Robbins, we overrule Turner in part and implement the following procedure to govern cases where appellate counsel represents an indigent criminal defendant and does not believe his or her client’s case presents any arguable issues on appeal:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-(4),(7); see also Robbins, 528 U.S. at 280-81, 120 S.Ct. 746 (stating that “[c]ounsel’s summary of the case’s procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing. See Robbins, 528 U.S. at 280-81, 120 S.Ct. 746; Turner, 818 So.2d at 1189.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief. Turner, 818 So.2d at 1189; cf. Wende, 600 P.2d at 1074. (4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing-on the issue, regardless of the probability of the defendant’s success on appeal. Robbins, 528 U.S. at 280, 120 S.Ct. 746 (citing Wende, 158 Cal.Rptr. 839, 600 P.2d at 1074).
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

¶ 19. Although this procedure more effectively implements the constitutional mandates of Robbins, we do not create or imply a right to post-conviction relief for those cases decided under Turner. In spite of its flaws, the Turner procedure at least required that we conduct an independent review of the record. Turner, 818 So.2d at 1189. In doing so, our appellate review afforded the protection to indigent clients they might not have otherwise received from their attorneys and satisfies any concerns we may have otherwise had as to whether indigent clients received constitutionally adequate representation under Turner. See, e.g., Sayles v. State, 823 So.2d 537, 540-41 (Miss.2002) (raising issue of sufficiency of evidence after independent review of record although neither appellate counsel nor appellant raised issue on appeal).

¶20. The purpose of applying more stringent protective measures is simply to safeguard the constitutional right to counsel which is afforded to indigent criminal defendants throughout the entirety of appellate proceedings. See Robbins, 528 U.S. at 280, 120 S.Ct. 746. Although we remain steadfast in our refusal to subsidize frivolous appeals, we also recognize the essential role of appellate attorneys in helping us accomplish this goal. Attorneys who thoroughly brief the claims of indigent appellants not only provide invaluable assistance to their clients and appellate courts, they eliminate the costs to the State that will inevitably result when attorneys fail to comply with the requirements articulated today. Because Lindsey’s attorney has submitted a brief simply concluding that his client’s claim has no merit, we order him to submit a supplemental brief in compliance with this opinion.

CONCLUSION

¶ 21. We overrule the Turner procedure in part in order to afford adequate and effective counsel to those indigent clients whose attorneys do not believe they have arguable issues to present the appellate court. We direct that the briefing schedule in this appeal be reopened for additional briefing consistent with this opinion. The Clerk of this Court shall notify the parties of the new briefing schedule. See M.R.A.P. 31.

¶ 22. SUPPLEMENTAL BRIEFING ORDERED.

SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J., NOT PARTICIPATING.

      . Turner was our response to United States Supreme Court precedent as well as Fifth Circuit criticism of our former Killingsworth procedure which consisted of the following: "Where counsel regards the appeal without merit and deems it his obligation to so state to the Court, the full protection of the rights of the accused require that he receive a copy of the representation counsel has made to the Court and be furnished a reasonable opportunity to file his own comments and raise any additional points that he chooses.” Killingsworth, 490 So.2d 849, 851 (Miss.1986).

      . At the time of trial, Odom was in jail for an unrelated charge.

      . We commend the State for acknowledging this problem, and note that it has previously done so in the past. See Brewer v. State, 834 So.2d 36, 38 (Miss.2003)(noting State's request that we revisit Turner but declining to do so for procedural reasons); accord Evans v. State, 813 So.2d 724, 726-27, 729 (Miss.2002). In specifically discussing the constitutional deficiencies in our current procedure, it has greatly assisted the Court in refining our jurisprudence.

      . The Court also noted that it would be especially egregious for an appellate court to decide the appeal without counsel if the court discovered arguable issues. Robbins, 528 U.S. at 280, 120 S.Ct. 746 (citing Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988)).

      . By no means do we imply that an indigent client has received unconstitutional representation because his or her attorney referred to the client's claims as "frivolous.” Instead, this particular aspect of our opinion seeks to alleviate any potential concerns an attorney may have about compliance with Mississippi Rules of Professional Conduct and has no effect on the constitutional rights of indigent clients.

      . We note that since counsel does not actually present an argument when filing a Turner brief, it would be impossible to comply with Mississippi Rule of Appellate Procedure 28(a)(5)-(6).

      .California’s Wende procedure allows appellate counsel to withdraw when it finds the attorney has adequately discharged his duty to set forth the facts and present the applicable law. See Wende, 158 Cal.Rptr. 839, 600 P.2d at 1073-74. We decline to adopt this approach in order to avoid temporarily leaving the defendant without the benefit of counsel and possibly necessitating the appointment of new counsel.


author: GRAVES, Justice,

text:
    Jessica POWERS f/k/a Jessica R. McDonald v. Eric TIEBAUER.
    No. 2003-CP-01877-SCT.
    Supreme Court of Mississippi.
    Aug. 25, 2005.

      Appellant, pro se.
    Thomas T. Buchanan, attorney for ap-pellee.
    Before WALLER, P.J., GRAVES and RANDOLPH, JJ.
   GRAVES, Justice,

for the Court.

¶ 1. On March 21, 1999, Rachel Caitlin McDonald (Rachel) was born out of wedlock to Jessica Powers f/k/a Jessica McDonald (Powers). Following a paternity test which established Eric Tiebauer as Rachel’s natural father, a hearing was held to adjudicate the same. Prior to the court’s proposed final order, Tiebauer petitioned to change the surname of Rachel to his own despite Powers’s objections. The chancellor granted his petition, ordered that Rachel’s surname be changed to Tie-bauer, and later ruled that Powers had abandoned her claim in a subsequent hearing. Powers now appeals, and we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. At the time of Rachel’s birth, Tie-bauer and Powers were adult residents of Mississippi, and both were unmarried. Approximately eight months following Rachel’s birth, Eric filed with the Chancery Court of Newton County, Mississippi a petition to determine paternity and for other relief. The chancellor subsequently ordered the parties to submit to a paternity test which revealed that Eric was Rachel’s biological father. Thereafter, Eric filed a motion for summary judgment requesting that the chancellor enter an order declaring him the natural father of Rachel as well as to award him permanent visitation.

¶ 3. On August 25, 2000, a hearing was held to adjudicate that Tiebauer was the biological father of Rachel based on the paternity test results. A temporary visitation schedule was also established. As the proposed final order was being drawn up by Tiebauer’s attorney, a provision to change Rachel’s surname was included despite the objections raised by Powers. A second hearing was set for November 9, 2000, to obtain an order for other issues, including a determination of child support and Tiebauer’s petition for the name change. As the hearing commenced, Tie-bauer’s counsel informed the court that he had included a provision to the proposed final order changing Rachel’s surname and that Powers opposed the change. The chancellor granted the name change, noting that it was “a legislative matter, but I would probably do it, anyway.” On November 14, 2000, the chancellor entered a final order which included the following provision: “That Rachel McDonald shall have the name of Rachel McDonald Tie-bauer; the birth certificate shall be changed to reflect the correct name of the minor child; as well as reflecting that Eric Tiebauer is the natural father of said minor child.”

¶ 4. On November 27, 2000, Powers filed a motion to alter or amend the judgment with regard to the name change. She argued that changing Rachel’s surname would necessitate numerous changes to government documents including birth certificate, social security records, medical records, and school records. Further, Powers argued that the name change would result in emotional harm and confusion to Rachel. Neither Powers nor her counsel took any further action to set a hearing or otherwise prosecute the motion.

¶ 5. A final hearing of paternity was set for July 27, 2003. With regard to Powers’s motion to alter or amend, the chancellor ruled that since the motion sat dormant for almost three years, she had abandoned it. During the hearing, Tie-bauer testified that it was important for Rachel to know that he is her natural father. He also testified that there were times when Rachel would refer to Powers’ husband (Rachel’s stepfather) as “daddy.” Powers testified that Rachel did not know Tiebauer’s last name and changing it would further confuse her. Relying upon Miss.Code Ann. § 93-9-9(1) (Rev.2004), the chancellor ruled, “I see nothing [before] the court that would lead [me] to believe that it is in the best interest of this minor child that she have any name other than the name of her natural father.” It is from this judgment that Powers timely appeals. She raises two issues on appeal, arguing that (1) the chancellor abused his discretion in ordering that Rachel’s surname be changed to that of her non-custodial father because he failed to apply the “best interests of the child” standard, and (2) the paternal surname presumption of Miss.Code Ann. § 93-9-9(1) is an unconstitutional violation of the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution. We affirm for the reasons stated below.

DISCUSSION

I. Standard of Review

¶ 6. While this Court will always review a chancellor’s findings of fact, the Court will not disturb the factual findings of a chancellor when supported by substantial evidence unless the Court can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard. Gannett River States Publ’g Corp. v. City of Jackson, 866 So.2d 462, 465 (Miss.2004); Morgan v. West, 812 So.2d 987, 990 (Miss.2002) (citing Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996); Ivison v. Ivison, 762 So.2d 329, 333 (Miss.2000); Miss. State Tax Comm’n v. Med. Devices, Inc., 624 So.2d 987, 990 (Miss.1993)). When reviewing questions of law, this Court employs a de novo standard of review and will only reverse for an erroneous interpretation or application of law. Morgan v. West, 812 So.2d at 990; Bank of Miss. v. Hollingsworth, 609 So.2d 422, 424 (Miss.1992); Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990).

II. Chancellor’s Order to Change Rachel’s Surname.

¶ 7. The order entered by the chancellor on November 14, 2000, was a final determination as to paternity and the change of Rachel’s surname. The order was “temporary” only as it related to custody, support, and visitation, with these issues to be ultimately settled at a final hearing that did not occur until July 17, 2003. In fact, the ordered was entitled “Order of Paternity; and of Temporary Custody, Support, and Visitation.” After the chancellor ordered that Rachel’s surname be changed to Tiebauer in November of 2000, Powers then challenged the name change via a Motion to Alter or Amend. However, as the chancellor noted at the final hearing in 2003, she took no action to notice the motion, set a hearing date, or otherwise pursue an adjudication of the motion until she objected to the name change at the final hearing on custody, support, and visitation. The chancellor found that Powers’s failure to pursue the motion should be deemed an abandonment of the claim. We find that the facts support the chancellor’s finding that Powers abandoned her claim; therefore, his decision was not an abuse of discretion. Accordingly, we decline to address the merits of Powers’s argument that the chancellor failed to consider the “best interests of the child” standard in ordering that Rachel’s surname be changed to that of her biological father, Eric Tiebauer.

III. Constitutionality of Miss.Code Ann. § 93-9-9(1).

¶ 8. Powers also alleges that Miss. Code Ann. § 93-9-9(1) (Rev.2004) contains a paternal surname presumption that violates the due process and equal protection clauses in the Fourteenth Amendment to the U.S. Constitution. U.S. Const, amend. XIV, § 1. Tiebauer argues that Powers’s constitutional challenge to this statute has been waived since she failed to assert it in any of the prior proceedings. This Court’s general policy is that “errors raised for the first time on appeal will not be considered, especially where constitutional questions are concerned.” Stockstill v. State, 854 So.2d 1017, 1023 (Miss.2003) (quoting Marcum v. Hancock County Sch. Dist., 741 So.2d 234, 238 (Miss.1999)). Powers acknowledges this rule yet argues that her case should not be proeedurally barred because it involves a fundamental right. She cites to Maston v. State, 750 So.2d 1234, 1237 (Miss.1999), for the proposition that a procedural bar will not be enforced against a party when that party has a “fundamental constitutional right” that will be affected.

¶ 9. In Maston, the defendant did not file a direct appeal of his conviction yet attempted to raise an ineffective assistance of counsel claim via a Motion for Post-Conviction Relief several years later, which the trial court denied. Maston, 750 So.2d at 1235. Though the Maston Court noted an exception to procedural bars when fundamental constitutional rights are at issue, it affirmed the trial court’s decision to deny relief and stated that “this Court has never held that merely raising a claim of ineffective assistance of counsel is sufficient to surmount the procedural bar.” Id. at 1237. Powers also seeks to support her position with two cases cited in Ma-ston, where this Court refused to enforce a procedural bar against the due process claims brought by convicted felons.

¶ 10. In Smith v. State, 477 So.2d 191 (Miss.1985), the defendant received a life sentence as a habitual offender under the greater of two repeat offender, statutes. He did not challenge the constitutionality of his sentencing on appeal but rather on a pro se post-conviction motion to correct sentence. Smith, 477 So.2d at 195. The State’s indictment of the defendant indicated that the State was seeking to convict and sentence him under a statute for which the maximum sentence would be seven years in prison, rather than the statute actually used to sentence him to life imprisonment. Id. at 196. The Smith Court refused to enforce a procedural bar against a defendant’s claim because the facts of the case indicated a clear denial of due process in the sentencing and that “[t]he comparison of a seven year sentence, as opposed to a life sentence, without probation or parole is too significant a deprivation of liberty tó be subjected to a procedural bar.” Id. at 195.

¶ 11. We also refused to proeedurally bar a defendant’s constitutional claim in Luckett v. State, 582 So.2d 428 (Miss.1991). In Luckett, the defendant pleaded guilty to a charge of forcible rape and the judge sentenced him to life imprisonment, though state statutes only allowed a jury to fix a life sentence for this crime. Id. at 430. The defendant sought to vacate his conviction and sentence nine years later, and this Court excepted his untimely challenge to the sentence from the applicable statute of limitations because the trial court’s actions clearly constituted a denial of due process in sentencing. Id. at 429-30.

¶ 12. Powers argues that she has a fundamental right, as a mother, to retain the birth name given to her child, even after paternity has been established and that the paternal presumption in Miss. Code Ann. § 93-9-9(1) constitutes both a due process and equal protection violation of those rights. For this reason, she claims that her constitutional claim should not be proeedurally barred from initial consideration on appeal. She acknowledges that neither the United States Supreme Court nor this Court have addressed whether the name of a child is a constitutionally protected right. However, she requests that this Court acknowledge that she has a fundamental right in choosing the name of her child and, as support for her argument, cites to other jurisdictions that have recognized such a right. See Jech v. Burch, 466 F.Supp. 714, 721 (D.Haw.1979) (finding parents have constitutional right to give child any surname they choose); Roe v. Conn, 417 F.Supp. 769, 783 (M.D.Ala.1976) (finding illegitimate child has liberty interest at stake when his name is altered); Jones v. McDowell, 53 N.C.App. 434, 281 S.E.2d 192, 194 (1981) (holding mother of illegitimate child has a constitutionally protected interest in retaining surname given to child at birth).

¶ 13. Tiebauer cites authority from other jurisdictions that do not recognize a parent’s fundamental constitutional right in the name of his/her child. See Brill v. Hedges, 783 F.Supp. 333, 339 (S.D.Ohio 1991) (finding parent has no “fundamental” right in naming child that would trigger strict scrutiny analysis in due process or equal protection challenge); Fulghum v. Paul, 229 Ga. 463, 192 S.E.2d 376, 377 (1972) (finding no one, parent included, has property interest in the name of another).

¶ 14. Both of the cases cited by Powers to support her argument that a procedural bar is improper in the instant case, involve criminal convictions. In Smith, the defendant was deprived of due process because he was sentenced under a harsher “repeat offender” statute than the statute under which he was indicted. In Luckett, the judge committed plain error by giving the defendant a life sentence when the statute did not authorize him to do. Smith and Luckett are distinguishable from the instant case.

¶ 15. Tiebauer’s original petition did not state that he was seeking a name change, though it did invoke Miss.Code Ann. § 93-9-9, the statute Powers claims is unconstitutional. However, Tiebauer’s Motion for Summary Judgment and for Temporary and Permanent Relief did contain a request for a name change. The record reflects that Tiebauer provided Powers with notice of this motion prior to the initial hearing in August of 2000. Powers opposed the name change at the initial hearing and at the second hearing on November 9, 2000, yet made no constitutional argument at either time. She made no challenge to the constitutionality of Section 93-9-9(1) in her Motion to Alter or Amend. Also, the record of the hearing held in July of 2003 contains no evidence that Powers sought to declare Miss.Code Ann. § 93-9-9(1) unconstitutional. Tie-bauer and the trial court were first apprised of Powers’s constitutional challenge when she appealed to this Court.

¶ 16. Unlike the judges in Smith and Luckett, the chancellor in the instant case did not render a decision that was in direct violation of a statute, so as to implicate the fundamental due process rights which warranted an exception to the procedural bar in those cases. Furthermore, though other jurisdictions have established that a parent has a fundamental constitutional right in his/her child’s name, this Court has yet to recognize that such a right is fundamental, so as to except Powers from the procedural bar against raising constitutional claims for the first time on appeal, and we decline to address the issue in this case.

¶ 17. Additionally, the Attorney General received no notice of Powers’s constitutional challenge until he received her appellate brief. He requests that this Court enforce the procedural bar against Powers’s constitutional claim for failure to comply with the notice requirement of Mississippi Rules of Civil Procedure (MRCP) 24(d). We have procedurally barred previous challenges to the constitutionality of a statute because of a party’s failure to notify the Attorney General. See Cockrell, 865 So.2d at 360 (citing Pickens v. Donaldson, 748 So.2d 684, 691-92 (Miss.1999); Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 202-03 (Miss.1999)). We find this rule applicable to the instant case. Hence, Powers is proeedurally barred from raising her constitutional challenge to Miss.Code Ann. § 93-9-9(1) for the first time on appeal.

In any action .. . for declaratory relief brought pursuant to Rule 57 in which a

CONCLUSION

¶ 18. We hold that the chancellor did not abuse his discretion in finding that Powers abandoned her challenge to Rachel’s name change. We also hold that Powers is procedurally barred from challenging the constitutionality of Miss.Code Ann. § 93-9-9(1). Accordingly, we affirm the judgment of the Newton County Chancery Court.

¶ 19. AFFIRMED.

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

      . Miss.Code Ann. § 93-9-9(1) states in part that ''[i]n the event of court-determined paternity, the surname of the child shall be that of the father, unless the judgment specifies otherwise.”

      . See also Cockrell v. Pearl River Valley Water Supply Dist., 865 So.2d 357, 360 (Miss.2004) (stating that procedural bar of constitutional claim will only be excused in unusual circumstances); In re V.R., 725 So.2d 241, 245 (Miss. 1998) (finding that a party raising a separation of powers argument is not excused from first raising it at trial); Colburn v. State, 431 So.2d 1111, 1114 (Miss.1983) (stating that questions not presented to trial court will not be reviewed on appeal).

      . M.R.C.P. 24(d) states in part: declaration or adjudication of the unconstitutionality of any statute of the State of Mississippi is among the relief requested, the party asserting the unconstitutionality of the statute shall notify the Attorney General of the State of Mississippi within such time as to afford him an opportunity to intervene and argue the question of constitutionality.


text:
    The MISSISSIPPI BAR v. Rodney E. REXRODE.
    No. 2005-BD-00872-SCT.
    Supreme Court of Mississippi.
    Oct. 26, 2005.
   ORDER OF DISBARMENT

JESS H. DICKINSON, Justice, for the Court.

¶ 1. This matter came before this Court sitting en banc on the Mississippi Bar’s Formal Complaint against Rodney E. Rexrode, an attorney resident of the Commonwealth of Pennsylvania, admitted to practice in Mississippi, and subject to the disciplinary jurisdiction of this Court. Disbarment proceedings which Rexrode did not contest were previously instituted against him in Pennsylvania, and the Supreme Court of Pennsylvania disbarred him on April 19, 1999, retroactive to April 20, 1998, Office of Disciplinary Counsel v. Rexrode, 556 Pa. 587, 730 A.2d 469 (1999). See also Office of Disciplinary Counsel v. Rexrode, 550 Pa. 573, 707 A.2d 1142 (1998).

¶ 2. The Mississippi Bar filed its Formal Complaint against Rexrode pursuant to Rule 13 of the Mississippi Rules of Discipline, seeking disbarment of Rexrode in Mississippi. The Mississippi Bar further requests this Court to require Rexrode, within fourteen days of disbarment, to notify all of his Mississippi clients of his disbarment and inability to continue as their attorney, and that they should seek alternate legal counsel. Finally, the Bar seeks recovery of its costs and expenses.

¶ 3. Rexrode was served with process through the Executive Director of the Mississippi Bar in accordance with Rule 16 of the Rules of Discipline, and in addition he was personally served, by mail, with notice, summons, and formal complaint on May 16, 2005; thus, this Court has personal jurisdiction over Rexrode in this matter. Rexrode does not contest these proceedings.

¶ 4. The misconduct leading to the Mississippi Bar’s Formal Complaint was essentially the same conduct that resulted in his Pennsylvania disbarment. He engaged in business transactions with clients without informing them of the risks involved or advising them to seek independent counsel. Thus, he advanced his personal financial interests to the detriment of his clients. Furthermore, he failed to fulfill his contractual obligations to the clients. The Disciplinary Board of the Supreme Court of Pennsylvania found that Rexrode had violated Rules 1.8(a), 8.4(b), and 8.4(c) of the Rules of Professional Conduct in his representation of one client and Rules 1.3, 1.4(b), and 1.8(a) of the Rules of Professional Conduct in his representation of another client. The Disciplinary Board also found that his violations were aggravated by his failure to pay restitution to his clients, his failure to comply with his contractual obligations to his clients, and his failure to reimburse the Lawyers Fund for Client Security after it awarded compensation to one of his clients.

¶ 5. The first client injured by Rexrode’s misconduct was the Meridian Corporation for whom Rexrode was corporate counsel. After receiving a payroll advance in the amount of $50,000 to finance his automobile racing business, Rexrode wrote three checks to Meridian as reimbursement, each of which bounced for insufficient funds. Meridian was reimbursed the $50,000 payroll advance only after filing a claim with the Pennsylvania Lawyers Fund for Client Security. Rexrode failed to reimburse the Lawyers Fund.

¶ 6. The second client injured as a result of Rexrode’s misconduct was Gerald Stern, who retained Rexrode to handle legal matters concerning his dry cleaning business and to advise him concerning his divorce settlement. After Stern requested that Rexrode inform him of business opportunities, Rexrode informed Stern of one of his clients who was seeking to sell his limousine business. Stern and Rexrode agreed to purchase the business together and that Stern would provide the purchase money and manage the daily operations of the business while Rexrode would provide all legal services, including obtaining the transfer of the Public Utility Commission license. Rexrode was also to pay Stern’s living expenses for a few months until the business became profitable. Stern tendered the purchase price and signed a contract for purchase of the business assets. However, Rexrode did not proceed to obtain transfer of the PUC license, forcing Stern to close the limousine business. The Disciplinary Board was unsure what happened to the initial investment which Stern never recovered.

¶ 7. Under Rule 13 of the Mississippi Rules of Discipline, the sanction from the other jurisdiction is itself conclusive evidence of the guilt of the offense or unprofessional conduct. It is not necessary to prove the grounds for the discipline again in this state.

The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on the attorney, which may be less or more severe than the discipline imposed by the other jurisdiction.

Miss. Rule of Discipline 13. After careful consideration of the facts before us, we find that the extreme sanction of disbarment is appropriate. We further find that the other relief requested by the Mississippi Bar is both reasonable and appropriate.

¶ 8. IT IS THEREFORE ORDERED that effective upon entry of this order Rodney E. Rexrode is hereby disbarred from the practice of law in the State of Mississippi.

¶ 9. IT IS FURTHER ORDERED that Rexrode shall bear all costs and expenses of these proceedings and shall pay to the Mississippi Bar its actual and reasonable expenses as provided for under Rule 27 of the Rules of Discipline.

¶10. IT IS FURTHER ORDERED that immediately following entry of this order, Rexrode shall take action to protect the interest of his clients as provided under Rule 11 of the Rules of Discipline, including but not limited to (1) giving to all clients notice of his disbarment and his consequent inability to act as an attorney as of the effective date of this order; (2) notifying each client involved in pending litigation or administrative proceedings and the attorney or attorneys for each adverse party in such proceedings, of his disbarment and consequent inability to act as an attorney after the effective date of this order; (3) advising each client promptly to substitute another attorney or attorneys in his place or to seek legal advice elsewhere; and (4) notifying all affected courts and agencies of his disbarment and consequent inability to act as an attorney after the effective date of this order.

¶ 11. IT IS FURTHER ORDERED that the Clerk of this Court shall mail certified copies of this order to the clerks of the Supreme Court of the United States, the United States Courts of Appeals for the Fifth Circuit, the United States District Courts for the Northern and Southern Districts of Mississippi, and Mississippi courts wherein Rexrode is known to practice.

¶ 12. IT IS FURTHER ORDERED that the Clerk of this Court shall send, via certified mail, a certified copy of this order to Rodney E. Rexrode whose last known address is 104 East Springettessbury Avenue, York, Pennsylvania 17403.

¶ 13. SO ORDERED, this the 26th day of October, 2005.

DIAZ, J., NOT PARTICIPATING.