author: GREG G. GUIDRY, Judge.

text:
    STATE of Louisiana v. Ronnell L. ANDERSON.
    No. 06-KA-372.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson.
    Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

laThe Defendant, Ronnell L. Anderson, appeals from his conviction for distribution of marijuana, adjudication as a fourth felony offender and sentence to 20 years imprisonment at hard labor. For the reasons which follow, we affirm.

On July 20, 2004, the Jefferson Parish District Attorney filed a bill of information charging Defendant with distribution of marijuana in violation of La. R.S. 40:966 A. Defendant was arraigned on August 10, 2004 and pled not guilty. On August 15, 2005, Defendant’s motion to suppress identification was heard and denied. The case was tried on August 17, 18, and 19, 2005 before a 12-person jury. The following facts were presented at trial.

Dion Jackson , an undercover agent with the Jefferson Parish Sheriffs Office (JPSO), testified at trial that, on October 16, 2003, at approximately 2:50 p.m., he was driving an unmarked pickup truck equipped with video and audio capabilities when he saw Defendant and another man. Jackson asked them if they [¡¡knew where he could get some “herb,” which Jackson explained at trial was the street name for marijuana, and they answered affirmatively. Jackson told them to get in the back of the truck, and they complied.

Defendant instructed Jackson to drive to 1108 Scottsdale Drive. When Jackson pulled up to that address, Defendant exited the vehicle and asked Jackson how much marijuana he wanted. Jackson asked Defendant whether he was selling “nickels” or “dimes,” which Jackson explained at trial meant five-dollar or ten-dollar bags of marijuana, respectively. Defendant responded that he was selling “nickels,” so Jackson told him to give him four bags. Jackson testified that Defendant then left and walked out of his sight into one of the alleyways between the four-plexes. When Defendant returned, he handed Jackson four yellow bags containing marijuana, and Jackson gave him twenty dollars. The videotape of the transaction was played for the jury.

Jackson described Defendant as being a black male with a medium to thin build and gold teeth, wearing blue jeans and a blue shirt with the number “77” on it. He identified Defendant in a photographic lineup on October 20, 2003.

JPSO Sergeant Corey Wilson testified at trial that he was in an unmarked vehicle across the street where he watched the transaction between Jackson and Defendant take place. He explained that his role in the investigation was to monitor the transaction in case something went wrong. After the sale, Wilson contacted JPSO Detective Leonard Brown to come into the area and detain Defendant. Once Brown did so, Wilson left.

Brown testified at trial that he approached Defendant and asked him his name, date of birth, height, weight, and address. Brown indicated that he had been advised that Defendant was wearing blue jeans and a blue shirt with the number | ¿“77” on it. Defendant told Brown that his name was “Ronnell Haywood,” but he eventually admitted that his name was “Ronnell Anderson.” Defendant also provided the other information that Brown was seeking which Brown wrote down on a field interview card.

Daniel Waguespack, a JPSO forensic scientist, testified at trial that he analyzed the four yellow Ziploc bags containing green vegetable matter in connection with this case. He concluded that each bag contained marijuana, and that the marijuana weighed a total of 5.6 grams.

After the state rested its case, the defense re-called Jackson as a witness. Jackson testified that he viewed the videotape of the transaction during the photographic lineup process; however, he did not remember how many times he did so.

After hearing the testimony and considering the evidence, the jury found Defendant guilty as charged. On October 11, 2005, Defendant filed a motion for post verdict judgment of acquittal and a motion for new trial that were denied. The trial court sentenced Defendant on February 23, 2006 to imprisonment at hard labor for 15 years to run concurrently with any other sentences he might be presently serving.

On that same date, the state filed a multiple bill alleging Defendant to be a fourth felony offender to which Defendant stipulated. The trial court vacated the original sentence and sentenced Defendant to imprisonment at hard labor for 20 years to run concurrently with any other sentence defendant was serving. On March 2, 2006, Defendant filed a motion to reconsider sentence which was denied | Band a motion for appeal that was granted. It is from this conviction and sentence that Defendant appeals.

On appeal, Defendant only assigns one error regarding his sentence. He argues that the imposed sentence is excessive. More specifically, Defendant argues that such a lengthy term of imprisonment should be reserved for violent offenses; that the sentence greatly exceeds the length of sentences imposed for murder in many jurisdictions in the United States; that it does not make sense to impose such a lengthy sentence for distribution of a natural substance, even if trading in that substance is illegal; that the degree of harm, if any, occasioned by the use of marijuana does not warrant such an extreme punishment; that the amount of marijuana involved was small; and that such a grave sentence for such an offense shocks the conscience of any fair-minded person.

The State responds that the sentence was not constitutionally excessive. The State argues that the imposed sentence was the mandatory minimum sentence Defendant could receive after he was found to be a fourth felony offender. Moreover, since the sentence is not outside the bounds of the statute it is presumed valid and the Defendant offered no evidence to the contrary.

The Louisiana Constitution of 1974, Art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to ... excessive ... punishment.” Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. Id.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. Smith, 01-2574 at p. 6, 839 So.2d at 4. On appellate review, the relevant question is not whether another sentence might have been more appropriate, but whether the trial court abused its broad sentencing discretion. Smith, 01-2574, at pp. 6-7, 839 So.2d at 4.

It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 97-1906, p. 6 (La.3/4/98), 709 So.2d 672, 675; State v. Mims, 00-1507, p. 6 (La.App. 5th Cir.12/26/01), 806 So.2d 760, 765. However, if the trial judge finds that an enhanced punishment mandated by La. R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” the trial judge has the option and duty to reduce such sentence to one that would not be constitutionally excessive. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Johnson, 03-620 at p. 14, (La.App. 5th Cir.10/28/03), 860 So.2d 180, 189-190. Nevertheless, downward departures from a mandatory minimum sentence should occur only in rare situations. Johnson, 97-1906 at p. 9, 709 So.2d at 676.

A trial court may depart from the minimum sentence only if it finds clear and convincing evidence rebutting the presumption of constitutionality. Johnson, 97-1906 at p. 7, 709 So.2d at 676. In order to rebut the presumption, the defendant has the burden of showing that:

[h]e is exceptional, which 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.

17/d, (quoting State v. Young, 94-1636 (La.App. 4th Cir.10/26/95), 663 So.2d 525, 528, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223). This evidence must be substantial. Johnson, 97-1906 at p. 7, 709 So.2d at 676. Thus, the “trial court may not depart from the legislatively mandated minimum simply because of some subjective impression or feeling about the defendant.” Young, 94-1636 at p. 5, 663 So.2d at 528. See also: State v. Bell, 97-1134, p. 14 (La.App. 5th Cir.2/25/98), 709 So.2d 921, 927, writ denied, 98-0792 (La.9/16/98), 721 So.2d 477.

A defendant’s “record of nonviolent offenses cannot be the sole reason, or even the major reason, for declaring a mandatory minimum sentence excessive” because the Habitual Offender Law has already taken into account the question of a defendant’s history of violent or nonviolent offenses. State v. Johnson, 97-1906 at pp. 7-8, 709 So.2d at 676. The mere allegation of being a non-violent habitual offender and a drug addict is not sufficient to find the mandatory minimum sentence excessive. State v. Harbor, 01-1261, p. 7 (La.App. 5th Cir.4/10/02), 817 So.2d 223, 227, writ denied, 02-1489 (La.5/9/03), 843 So.2d 388.

In this case, the record indicates that at the time Defendant committed this offense, he was 25 years old and already had three previous felony convictions. Although the prior convictions were not for crimes of violence, that is not enough to warrant a downward deviation of the Defendant’s sentence from that which is statutorily mandated. Moreover, it is clear from his record Defendant is likely to commit another offense. Since the Defendant has not put forth other evidence, he has not proven clearly and convincingly that a downward deviation from the mandatory sentence is warranted. Therefore, after review of the record, we find that the imposed sentence of 20 years at hard labor for this Defendant is not constitutionally excessive.

1 ¿ERROR PATENT REVIEW

Defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990) regardless of whether a defendant makes such a request. Our review of the record reveals no errors which require corrective action by this Court.

Accordingly, for the reasons stated above, the Defendant’s conviction for distribution of marijuana and his sentence as a fourth felony offender to 20 years imprisonment at hard labor are affirmed.

CONVICTION AFFIRMED SENTENCE AFFIRMED.

      . Jackson later testified that his real name was Gene Dixon, and that he used an alias for safety reasons.

      . Sergeant Corey Wilson later testified that the JPSO had received several complaints regarding narcotics transactions in the Scottsdale area.

      . The record contains a document entitled "Waiver of Rights-Plea of Guilty as Multiple Offender under La. R.S. 15:529.1” indicating that in return for his guilty plea Defendant was promised a 20 year sentence. The form was signed by Defendant, defense counsel and the trial judge.

      . We note, however, that the Supreme Court has instructed appellate courts to refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint. State v. Campbell, 01-0329 (La. 11/2/01), 799 So.2d 1136. Furthermore, while it has been held that this Court has the authority to correct an illegal sentence, it has also been held that this authority is permissive. State v. Jordan, 02-0820, p. 5 (La.App. 5th Cir. 12/30/02), 836 So.2d 609, 614.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Brian A. MILLER.
    No. 06-KA-451.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Martin Belanger, Jr., Kia Habisreitinger, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Mark D. MacNamara, New Orleans, Louisiana, for DefendanVAppellant.
    Dwight Doskey, Covington, Louisiana, for Defendant/Appellant.
    Panel composed of JUDGES MARION F. EDWARDS, CLARENCE E. McMANUS, and EDWARD A. DUFRESNE, JR.
   MARION F. EDWARDS, Judge.

1 gDefendant/appellant, Brian Miller, appeals his conviction for attempted possession of cocaine. For the reasons that follow, we affirm and remand.

The Jefferson Parish District Attorney filed a bill of information charging the defendant, Brian Miller (“Miller”), with possession of 400 or more grams of cocaine, a violation of LSA-R.S. 40:967(F). The defendant pled not guilty at arraignment. Miller’s grandmother-in-law, Azie-nell Holmes, was also charged with the same offense, but the count was dismissed in exchange for her truthful testimony at the defendant’s trial..

According to the minute entry of December 17, 2002, Miller waived his right to a jury trial and proceeded to a trial before the judge. Afterwards, the trial judge found Miller guilty of the responsive verdict of attempted possession of 400 or more grams of cocaine.

13That same day, the commitment reflects the trial judge imposed a sentence of fifteen years of imprisonment at hard labor. Pursuant to the defendant’s motion to vacate sentence, in which Miller claimed that he did not intend to waive sentencing delays, the trial judge vacated the sentence. On January 30, 2003, the trial judge sentenced Miller to fifteen years of imprisonment without benefit of parole, probation, or suspension of sentence. The court also imposed a $5,000 fine. Miller filed a timely post-conviction relief application seeking an out-of-time appeal, which the trial judge granted.

In April 1999, Detective Moran provided information that prompted Officer John Louis (“Officer Louis”) of the Kenner Police Department to set up surveillance of 1500 West Esplanade, Apartment A, on April 21, 1999. Prior to setting up surveillance, Officer Louis obtained a description of the defendant from N.C.I.C., learned some of his aliases, and learned that Miller had several outstanding attachments. At approximately 7:30 p.m., on April 21, 1999, a vehicle arrived at the apartment and a man fitting the description of the defendant exited the passenger’s side. The man, later identified as Miller, entered the apartment with a key, exited, and locked the door. He then re-entered the vehicle, which drove away.

Officer Louis stopped the vehicle approximately one block from the apartment. Miller did not have his driver’s license, but identified himself as “David Williams,” which was one of the defendant’s aliases. When Officer Louis said, “Try again, Brian,” the defendant asked Officer Louis why he had stopped the car. Officer Louis explained that the defendant was being arrested for outstanding attachments. After Miller was handcuffed, Officer Louis noticed that there was a marijuana cigarette in the ashtray, and both the passenger and Miller were arrested.

|4The next day, at approximately 1:00 p.m., Officers Louis and Mitchell resumed surveillance of the apartment. Five or ten minutes later, a woman, later identified as Azienell Holmes (“Holmes”), arrived at the apartment. She went inside, and came out with a vacuum cleaner. As she was closing the door, the officers approached and identified themselves. Holmes identified herself and when asked if she knew who lived there, she said Brian, her son-in-law, lived there. According to Officer Louis, Holmes also said that Brian had called her from jail and asked her to bring the vacuum cleaner to her house across the river. Officer Mitchell testified that he only heard Holmes say that Brian was her son-in-law.

The officers then noticed a plastic bag containing a white powdered substance protruding from the top of the vacuum’s zippered bag. When Officer Louis asked her about the substance, she began to panic.' According to Officer Louis, Holmes denied knowing anything and reiterated that the defendant told her to bring the vacuum to her house. At that point, Officer Louis called the K-9 unit to the scene, and the dog alerted to the vacuum cleaner. Officer Louis field tested the powder, which was positive for cocaine.

Officer Louis secured a search warrant for the apartment and the vacuum cleaner. They found several bags of white powder, two larger bags of a brown powdered substance, and other plastic bags containing a mix of white and brown powder in the vacuum. The white powder tested positive for cocaine, and there was over 1000 grams of cocaine in the vacuum. According to Officer Louis, the brown powder was some sort of coco mix, presumably used to camouflage the cocaine. Inside the residence, Officer Louis found a 10 mm Glock clip containing hollow point bullets, a hand-held scale, and several documents bearing the defendant’s name. There was little furniture in the apartment and no beds. There |5was only male clothing. They found no narcotics in the apartment and the drug dog did not alert anywhere in the apartment.

The police also found a speeding ticket for David Williams, one of the defendant’s documented aliases, and a box of business cards bearing defendant’s name for In “Too II Deep Records,” with Brian “Gangster B” Miller Ceo, President, and an application for some sort of license for In II Deep Records, bearing the defendant’s name as the CEO, President. They found a photograph of Miller, artwork of “In II Deep Records,” and the defendant’s credit report that listed his address as 3105 Touchwood in Harvey.

At trial, sixty-seven-year-old Holmes testified that Miller is the spouse of her granddaughter, Larhonda. Holmes said that she and Larhonda were living at 3105 Touchwood Drive in Harvey, which was Miller’s and Larhonda’s house. Holmes said that Larhonda paid the note. While Miller occasionally stayed there, Holmes believed he was residing at the apartment on West Esplanade. Holmes said that Miller called the Touchwood residence while he was in jail and asked Holmes to pick up some of his things, including the vacuum, at the apartment on West Esplanade. Holmes admitted she had three other vacuums at home, but none of them worked.

Miller gave her the address to the apartment and she used the key that was at the Touchwood residence to enter the apartment. While there, Holmes decided she could not bring the television or Playstation because she did not know how to disconnect them. She left with the vacuum, which was in the living room, and encountered the police upon exiting the apartment. She testified that she did not know there was cocaine in the vacuum.

The record reflects that Miller had an outstanding attachment in New Orleans. Officer Tommy Powell (“Officer Powell”) of the Kenner Police | (¡Department testified that, on April 26,1999, while returning the defendant to Kenner from Orleans Parish Prison, Miller inquired about his Kenner charges. Officer Powell answered that he was not familiar with the investigation, but that it had something to do with crack cocaine. According to Officer Powell, Miller replied something to the effect that the charge related to powder cocaine, not crack.

Miller’s theory of the case was that the apartment was used for his business, In Too Deep Records, but that he did not live at the apartment, and that he had not called Holmes to ask her to go to the apartment. According to the manager of the property, the apartment was leased to “Mimh Bui (Sam).” However, he had no checks or correspondence from Bui after the lease was signed.

Miller’s brother, Shevone Miller, said that the defendant was living at 3105 Touchwood in Harvey. Shevone Miller testified that the defendant could not call home because there was a block on the phone for collect calls. As such, Shevone Miller arranged a 3-way phone call between the defendant, himself and Larhon-da, in which the defendant told Larhonda to get their son’s medicine from the apartment. Shevone Miller said that he had been to the apartment once or twice with the defendant, but he did not know who lived there. The defendant’s cousin, Aaron Martin (“Martin”), said that he went to the apartment once or twice a week after work to visit the defendant, who was working with a rap artist. According to Martin, the apartment was used as a place to write rap music. Many people, including Sam, whom Martin described as an “Asian fellow,” had keys to the apartment. Martin testified that Tyshawn Walker (“Walker”), the vice-president of the defendant’s company, was often at the apartment. Martin testified that no one regularly slept at the apartment, but that people from out of town would occasionally stay there. But, the defendant never slept there. Die-dra Turnbull (“Turnbull”), the girlfriend of Walker, testified that Walker was incarcerated in the |7federal penitentiary on drug charges. According to Turnbull, Walker lived at the apartment. Turnbull testified that Walker was selling drugs at the time and always had a lot of money. Turnbull frequently met a lot of people from out of town with “gangster names” and saw Miller at the apartment a few times.

In his second assignment of error, Miller raises issues regarding the sufficiency of the evidence and another trial error. When the issues on appeal relate to both the sufficiency of evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering the entirety of the evidence. If the reviewing court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. On the other hand, when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal, and the reviewing court must then consider the assignments of trial error to determine whether the accused is entitled to a new trial. Therefore, the sufficiency of the evidence is addressed before the other assignment.

Miller contends that the evidence was insufficient to support his conviction because the State failed to prove that he had the specific intent to possess the cocaine and that he was not in constructive possession of the cocaine. The State responds that the evidence supports his conviction.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a | ¡^reasonable doubt. The rule as to circumstantial evidence is “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must ex-elude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt.

In this case, Miller was charged with possession with 400 or more grams of cocaine, but he was convicted of the lesser charge of attempted possession of 400 or more grams of cocaine, violations of LSA-R.S. 40:967(F)(l)(e) and R.S. 14:27. To support a conviction for possession of cocaine in violation of LSA-R.S. 40:967(F)(l)(c), the State must present evidence establishing beyond a reasonable doubt that: (1) the defendant was in possession of the drug; (2) the defendant knowingly and intentionally possessed it; and (3) the amount possessed was 400 grams or more of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule 11(A)(4) of R.S. 40:964.

A person not in physical possession of the drug is considered to be in constructive possession of a drug, even though it is not in his physical custody, when the drug is under that person’s dominion and control. Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include: (1) the defendant’s knowledge that illegal drugs were in the area; (2) his relations with the person 19found to be in actual possession; (3) the defendant’s access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) the existence of paraphernalia; and (6) evidence that the area was frequented by drug users.

An attempt is defined in LSA-R.S. 14:27, which, in pertinent part, provides:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.

Specific criminal intent exists “when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant.

Miller contends that the State failed to prove that he possessed or attempted to possess the cocaine. In particular, he argues that there is no evidence he knew the cocaine was in the vacuum cleaner or any evidence that the cocaine was in the apartment at the same time he was there. However, we find that the evidence is sufficient to prove that Miller had the specific intent to possess the cocaine and that he did an act in furtherance of his object.

11 (Although there was evidence that the apartment was frequented by many people, there was also evidence that Miller resided there and that the apartment was frequented by a drug dealer, Walker, who was Miller’s business partner. Testimony that Miller lived at the apartment came from Holmes, who said that it was her understanding that Miller resided at the apartment, and from Detective Moran, who said that Miller provided this address when booked on other charges relating to an incident at the apartment. In addition, several personal documents bearing Miller’s name were found at the apartment, and Miller also had a key to the apartment.

A defendant’s guilty knowledge may be inferred from the circumstances of the transaction. Despite the defendant’s contention that he did not know there was cocaine at the apartment, the record contains evidence of his guilty knowledge. The defendant’s assertion to Officer Powell that the Kenner charges involved powder cocaine, not crack, is indicative of his guilty knowledge. In addition, the unusual request for Holmes, who had never been to that apartment before, to procure the vacuum evidences Miller’s guilty knowledge.

When returning the verdict, the trial judge acknowledged that there were discrepancies about whether Miller personally told Holmes to obtain the vacuum or whether the instruction was communicated by another family member. But, the trial judge was convinced that the instruction emanated from Miller and that the telephone call directing Holmes to get the vacuum cleaner was an act in furtherance of his intent to possess the cocaine.

Under these circumstances, we find that the trial judge could rationally reject the hypothesis of innocence advanced by Miller, and could find that the evidence Improved beyond a reasonable doubt that the defendant attempted to possess 400 or more grams of cocaine.

Miller also argues that the trial court erred by admitting into evidence Holmes’ prior recorded statement to the police. Miller claims that the error was not harmless because the statement improperly bolstered Holmes’ testimony. The State responds that the trial judge properly admitted the statement.

At trial, Holmes testified that she told the truth in her recorded statement to the police following her arrest. She then recounted how she came to be in possession of the vacuum cleaner, particularly, that Miller asked her to obtain his things, including the vacuum cleaner. When asked by the prosecutor whether she remembered Miller asking her to take the vacuum cleaner out of the house, she responded, “Because we needed one.”

On cross-examination, Miller attempted to clarify whether Holmes had said that he told her she could have the vacuum cleaner if she needed one, or whether the defendant just told her to go get the vacuum cleaner. Miller confronted Holmes with her testimony when entering her guilty plea on August 30, 2001. She acknowledged she may have said that Miller told her she could have the vacuum if she needed one. Holmes explained that “it could have been either way,” but that Miller did tell her to get the vacuum cleaner. She testified she said the same thing to the police.

Holmes was then confronted with a statement she gave to the defendant’s attorney, Robert Glass, earlier in the year preceding trial. At trial, Mr. Glass read portions of the statement indicating that Holmes said Miller did not mention the | ^vacuum cleaner, but just asked her to get his things. Holmes essentially disavowed the statement, saying that her granddaughter, Larhonda, had made the statements to Mr. Glass. Holmes said she just signed the statement because she wanted Mr. Glass to leave and because Larhonda asked her to sign it. Holmes also said she didn’t know what she was signing because she wasn’t wearing her glasses. During cross-examination, Mr. Glass suggested that Holmes pressured Larhonda from testifying on the defendant’s behalf by threatening to cease babysitting for her, which Holmes denied. However, Holmes admitted that she told Mr. Glass that they needed a vacuum cleaner, because they had three that did not work. She also said that Miller asked her to get the vacuum cleaner, that was her “story,” and she was “sticking to it.”

During the testimony of Officer Mitchell, the State moved to admit Holmes’ statement to the police. The trial judge admitted the recorded statement pursuant to LSA-C.E. art. 801(D)(1)(b) over the defendant’s objection. A review of the recorded statement reflects that it is substantially consistent with her trial testimony that she obtained the vacuum at the defendant’s request and that she did not know the vacuum’s contents. In the statement, Holmes explicitly said that she thought Miller wanted her to obtain the vacuum because they needed one at home.

LSA-C.E. art. 801(D)(1)(b) provides that a statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

Miller contends that LSA-C.E. art. 801(D)(1)(b) requires that the event producing the fabrication or improper motive occur between the statement and the 1^testimony. According to the defendant, the statement was not admissible because Holmes’ motive to lie, that is to protect herself, existed when she made the statement to the police. In support, the defendant cites Tome v. United States, a plurality opinion in which the Supreme Court interpreted Federal Rule of Evidence 801(D)(1)(b) to permit the introduction of a declarant’s consistent out-of-court statement to rebut a charge of recent fabrication or improper motive only when the statement was made before the alleged recent fabrication or improper influence or motive. In Tome, the defendant was charged with sexually abusing his four-year-old daughter on an Indian reservation after the child reported the allegations to her mother while in her mother’s custody. By the time of trial, the child was six and one-half years old and her testimony consisted mostly of one-word answers to leading questions. Thereafter, the State moved to introduce several statements implicating the defendant that the child made to various individuals The trial judge found the statements were admissible to rebut the defendant’s charge that her testimony was motivated by a desire to live with her mother. However, the Supreme Court held that the statements were not admissible because they were not made before the charged recent fabrication or improper influence or motive.

The instant case is distinguishable from Tome. First, it seems that the principle purpose for the statements in Tome was to supply substantive evidence of the allegations, where the child-victim’s testimony was composed of mostly one-word answers to leading questions. Here, Holmes gave narrative explanations in her testimony, not one-word answers to leading questions. Further, the record reflects that the implications of fabrication arose during the defendant’s cross-examination of Holmes.

|uIn State v. Jones, this Court held that a witness’ prior recorded statements to the police were admissible under LSA-C.E. art. 801(D)(1)(b) to rehabilitate the witness’ credibility, where the defendant called the witness’ credibility into question in the opening statement and during trial. In reaching its decision, the Jones court cited State v. Easter, in which the court found that a witness’ prior police statement was admissible under LSA-C.E. art. 801(D)(1)(b). In Easter, the defendant alleged on cross-examination that the witness’ trial testimony differed from the pri- or statement given to the police. Over the defendant’s objection, the officer who took the statement testified about the substance of the statement, which was substantially consistent with the witnesses’ trial testimony.

In the present case, Miller sought to discredit Holmes during cross-examination by suggesting that her testimony was a recent fabrication because she had given two different versions of the events since her original statement to the police. As such, we find that the trial judge did not err in admitting the statement to rebut the defendant’s suggestion of recent fabrication.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland. Miller has requested an error patent review; however, this Court routinely reviews the record for errors patent regardless of whether defendant makes such a request. The following matters are noted:

The trial minute entry dated December 17, 2002 states that Miller waived a jury trial, while the transcript does not contain any mention of the waiver. Rather, the transcript begins with testimony of the first witness.

|1fA defendant is entitled to a trial by jury of six persons when the confinement for the offense may be at hard labor. The offense for which the defendant in this case is charged is punishable at hard labor. Thus, the defendant in this case was entitled to a jury trial.

Miller has not raised the lack of a valid jury waiver as an assignment, but this issue has been recognized as an error patent. Although the right to a jury trial may be waived in non-capital cases, it must be “knowingly and intelligently” waived. Waiver of this right is never presumed. Although it remains the preferred method for the trial judge to advise a defendant of the right to a jury trial in open court before obtaining a waiver, that practice is not statutorily required. Further, while it is preferred for the defendant to waive the right to a jury trial personally, counsel may waive the right on the defendant’s behalf, provided the defendant’s decision to do so was made knowingly and intelligently.

When there is no valid jury waiver in the record, the case is conditionally affirmed and remanded to the trial court for an evidentiary hearing on the question of whether the defendant validly waived the right to a jury trial. If the evidence shows that the defendant did not make a valid waiver, the trial court must set aside the conviction and sentence and grant the defendant a new trial. If the trial court rules adversely to the defendant, then the defendant’s right to that ruling is reserved.

| Accordingly, we conditionally affirm Miller’s conviction and remand for an evi-dentiary hearing in accordance with the jurisprudence cited, supra.

There is a discrepancy between the transcript and the commitment in that the commitment reflects the trial judge gave Miller four days of credit for time served while awaiting extradition from California, whereas the transcript does not. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. Accordingly, we order the trial court to resolve the discrepancy in the transcript and the commitment regarding the credit for time served.

The record also reveals that the defendant was not advised of the time limit for filing an application for post-conviction relief as required by LSA-C.Cr.P. art. 930.8. However, informing the defendant of these provisions is unnecessary because the defendant filed a motion for out-of time appeal, thus exercising his right to post-conviction relief.

Accordingly, for the foregoing reasons, the defendant’s conviction is conditionally affirmed, and we remand for further proceedings consistent with this opinion.

AFFIRMED; REMANDED.

      . The sentence was not transcribed. The record contains a letter from the defendant’s attorney indicating his agreement for the record to be lodged without the transcript of the sentencing.

      . State v. Hearold, 603 So.2d 731, 734 (La.1992).

      . Id.

      . Id.

      . 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998).

      . State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208.

      . Id.

      . State v. Major, 03-3522 (La.12/1/04), 888 So.2d 798, 802; LSA-R.S. 40:967(F)(1)(c).

        . State v. Young, 05-702 (La.App. 5 Cir. 2/14/06), 938 So.2d 90, 94.

        . State v. Young, supra.

      . State v. Lee, 03-901 (La.App. 5 Cir. 12/9/03), 864 So.2d 654, 659.

      . State v. Pigford, 05-0477 (La.2/22/06), 922 So.2d 517, 521, 523.

      . When the prosecutor asked her if she thought that was the reason the defendant asked her to remove to vacuum cleaner, the judge sustained the defendant's objection to the prosecutor characterizing Holmes’ testimony.

      . The statement was not introduced into evidence, but Mr. Glass read portions of it into the record when questioning Holmes.

      . 513 U.S. 150, 156, 115 S.Ct. 696, 700, 130 L.Ed.2d 574 (1995).

      . 513 U.S. at 153-56, 115 S.Ct. at 699-700.

      . 513 U.S. at 167, 115 S.Ct. at 705.

      . 02-908 (La.App. 5 Cir. 2/25/03), 841 So.2d 965, writ denied, 03-0895 (La.9/26/03), 854 So.2d 345.

      . 32,940 (La.App. 2d Cir.4/07/00), 756 So.2d 703, writs denied, 00-1321 (La.2/9/01), 785 So.2d 28, 00-2529 (La.6/29/01), 794 So.2d 823.

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir.1990).

      . See, LSA-C.Cr.P. art. 782 and La. Const. art. I, § 17.

      . See, LSA-R.S. 40:967(F)(2)(c).

      . See, State v. Goodwin, 05-51 (La.App. 5 Cir. 6/28/05), 908 So.2d 56, 59; State v. Lokey, 02-1087 (La.App. 5 Cir. 2/25/03), 840 So.2d 653, 655-56, writ denied, 03-1212 (La.11/7/03), 857 So.2d 518.

      . LSA-C.Cr.P. art. 780(A).

      . State v. Lokey, supra.

      . State v. Pierre, 02-2665 (La.3/28/03), 842 So.2d 321 (per curiam); State v. McCloud, 04-1112 (La.App. 5 Cir. 3/29/05), 901 So.2d 498, 503, writ denied, 05-1450 (La.1/13/06), 920 So.2d 235.

      . State v. Pierre; State v. McCloud, supra.

      . See, State v. Nantal, 97-786 (La.9/26/97), 701 So.2d 963.

      . Id.

      . State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . See, State v. Rose, 97-943 (La.App. 5 Cir. 1/27/98), 708 So.2d 1093, 1095.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Ronald FAIRMAN, Jr.
    No. 06-KA-366.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Ken Dohr, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

li>The State of Louisiana brings this appeal, contending the defendant’s sentence is illegally lenient. For the following reasons, we reverse.

The Jefferson Parish District Attorney filed a bill of information charging defendant, Ronald Fairman, Jr. with possession of marijuana, third offense, in violation of La. R.S. 40:966 C. The defendant pled not guilty at his arraignment. He subsequently withdrew his not guilty verdict and pled guilty as charged. The trial court sentenced the defendant to imprisonment at hard labor for one year, suspended that sentence, and placed him on active probation for three years. The State subsequently filed a “motion to reconsider sentence and/or motion to correct an illegal sentence.” The trial court denied that motion and this appeal ensued.

Because this case involves a guilty plea, the known facts regarding the charged offense are minimal. The bill on information shows the defendant was charged with third offense possession of marijuana, having been twice convicted of that crime. The probable cause affidavit in the arrest report indicates that narcotics investigators were conducting an investigation at Avenue A and West Bank Expressway, when they observed defendant passing a hand-rolled cigar that Lemitted a strong odor of burning marijuana. The officers conducted a field test on the green vegetable matter from the cigar, and the result was positive for presence of marijuana. The officers placed the defendant under arrest.

During the guilty plea colloquy, the defendant admitted he knowingly possessed marijuana jointly with his co-defendant, Algeron Washington, on October 12, 2005. The defendant further admitted he had two prior convictions for possession of marijuana, in cases number 97-2964 and 03-2964.

At the time of sentencing, the prosecutor objected to the penalty imposed as illegally lenient, arguing the defendant’s prior convictions prohibited him from receiving a suspended sentence under Article 893. The trial judge reminded the prosecutor that he had informed the parties of his plan to offer the defendant a plea bargain during a pre-trial conference the previous day. The judge said he had made it clear to the parties that his aim in proposing a plea agreement with a sentence favorable to the defendant was to “unclog” the court’s docket.

The prosecutor explained that he had agreed to the plea bargain based upon a mistaken understanding that the defendant would receive a one-year jail team; had he realized the plea bargain involved a suspended sentence, he would not have consented to it. The judge overruled the State’s objection, commenting that in his view, the agreed upon sentence was not illegally lenient under Article 893. The trial court later denied the State’s written “motion to reconsider sentence and/or motion to correct an illegal sentence” without reasons. We find that the trial court ruled in error.

The exhibits attached to the State’s trial court motion show the defendant accrued five felony convictions between 1997 and 2003. This court has held that, 14under La.C.Cr.P. art. 893 A, “ ‘[suspension of sentence and probation are available only for the first and second felony offenders.’ ” State v. Guilbeaux, 99-591 (La.App. 5 Cir. 11/10/99), 749 So.2d 16, 18, quoting State v. Watson, 535 So.2d 1329, 1330 (La.App. 5 Cir.1988). In both Guilbeaux and Watson, under facts similar to those in the instant case, this court vacated the defendants’ illegal sentences and remanded for re-sentencing.

Criminal plea agreements are analogous to contracts in that they are formed by the consent of the parties established through offer and acceptance. Louisiana courts generally use civil contract law as guidance in determining the validity of plea bargains. State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443, 445; State v. Robinson, 01-946 (La.App. 5 Cir. 1/29/02), 807 So.2d 1085, 1089 writ denied, 02-0638 (La.11/1/02), 828 So.2d 563. Under our civil code an obligation cannot exist without a lawful cause. La. C.C. art.1966. La. C.C. art.1968 provides that “[t]he cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against.public policy.”

The plea bargain in the instant case afforded the defendant an illegally lenient sentence. Under our law, such an agreement is an absolute nullity which cannot be confirmed on appeal. State v. Chisley, OS-426 (La.App. 5 Cir. 10/15/03), 860 So.2d 45, 51, writ denied, 03-3358 (La.4/2/04), 869 So.2d 874; State v. Guilbeaux, 749 So.2d at 19.

For the foregoing reasons, we find the defendant’s sentence is illegal and was imposed pursuant to an illegal plea agreement. Accordingly, we vacate the sentence and remand the matter to the trial court for further proceedings, reserving to the defendant the right to -withdraw his guilty plea.

SENTENCE VACATED; CASE REMANDED.

      . The waiver of rights form completed and signed by the defendant and his attorney at the time of the guilty plea shows that the agreed upon sentence was one year at hard labor, suspended, and three years' active probation.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Shane GUIDRY & Guidry Brothers Development, LLC. v. LEE CONSULTING ENGINEERING INC., ABC Insurance Company, B & P Construction, Inc., DEF Insurance Company, New Orleans Post Tension, Inc., GHI Insurance Company, Design Built Consulting, Inc., and JKL Insurance Company.
    No. 06-CA-279.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      Thomas J. Capella, Attorney at Law, Metairie, Louisiana, Robert A. Vosbein, Jr., Benjamin C. Rodgers, Attorneys at Law, New Orleans, Louisiana, for Plaintiff'Appellant.
    Matthew K. Brown, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| oThis is an appeal from a summary judgment rendered by the trial court on the issue of insurance coverage. For the reasons stated herein, we affirm.

Plaintiffs, Shane Guidry and Guidry Brothers Development, L.L.C., filed the instant petition for damages against numerous defendants, including Lee Consulting Engineers, Inc. and its insurer, Certain Underwriters at Lloyds. In this petition, plaintiffs allege that Shane Gui-dry contracted with Guidry Brothers Development, LLC (“GBD”) to build a home on property owned by Mr. Guidry in Harvey, Louisiana. According to the petition, GBD then contracted with Design Built Consulting, Inc. to design and provide necessary documents and drawings for the home. Design Built in turn hired Lee Consulting Engineers, Inc. (“Lee”) to perform engineering services and structural analysis, and to make recommendations for the design and construction of the foundation of Mr. Guidry’s home.

Following the completion of his home construction, Mr. Guidry noticed cracks in the sheetrock which he later discovered were caused by settlement of the home. A subsequent professional investigation of the | ¿foundation and sub-soils beneath the home confirmed this fact. As a result of this discovery, plaintiffs filed the present lawsuit alleging, among other things, that the negligence of Lee' in its design of the foundation caused him to incur these damages.

Lee filed an answer to the petition generally denying these allegations. Lee’s insurer, Certain Underwriters at Lloyds (“Underwriters”), filed a separate answer denying the allegations of the petition and further averring that the policy issued to Lee was not in effect at the time of the alleged errors or omissions referred to in plaintiffs’ petition. The insurer subsequently brought a motion for summary judgment on the basis that the policy issued to Lee provided no coverage to plaintiffs herein. Thereafter, plaintiffs brought a cross-motion for summary judgment on the basis that the policy issued to Lee provided coverage for the damages they sustained in this case.

Following a hearing, the trial court granted the motion of Underwriters and denied the motion of Shane Guidry and GBD. In its reasons for judgment, the court stated as follows:

On August 16, 2005, this Court granted Underwriters’ Motion for Summary Judgment and denied the plaintiffs’ Cross Motion for Summary Judgment finding that coverage under Policy NAC1017 issued by Underwriters to plaintiffs [sic] did not exist at the time the wrongful acts allegedly occurred. “A ‘claims made’ insurance policy is one in which coverage attaches only if the negligent harm is discovered and reported with the policy period.” Ward v. Vizzini 695 So.2d 1012, 1015 (La.App. 5th Cir.1997). Here, plaintiff discovered the alleged settlement in 2001; however, the coverage under Policy NAC1017 did not commence until February 1, 2002.
The Court finds that the plaintiffs’ damage manifested itself prior to the retroactive date of Underwriters’ policy; therefore, the defendant insurers, Certain Interested Underwriters at Lloyd’s of London, | sare not liable for the plaintiffs’ damages. For this reason the Court grants the defendant’s Motion for Summary Judgment and denied the plaintiffs’ Cross Motion for Summary Judgment.

Applicable Law

Summary judgment shall be granted where the pleadings, depositions, answers to interrogatories, admissions and affidavits on file, demonstrate that no genuine issue as to any material fact is present and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B; Araujo v. Eitmann, 99-1377 (La.App. 5th Cir.5/17/00), 762 So.2d 223, 225. The standard of review of the granting of a motion for summary judgment is de novo, using the same criteria that governs trial court’s determination of whether summary judgment is appropriate. Independent Fire Insurance Co. v. Sunbeam, 755 So.2d 226 (La.2000); Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991).

Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Props., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183; Vintage Contracting, L.L.C. v. Dixie Bldg. Material Co., Inc., 03-422 (La.App. 5 Cir. 9/16/03), 858 So.2d 22, 25.

An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation set forth in the Louisiana Civil Code. Reynolds, 634 So.2d at 1183. In Louisiana, insurance policies are interpreted under the rules governing contract interpretation. La. C.C. arts.2045-2057. Language in an insurance policy | (¡which is clear, expresses the intent of the parties and does not violate a statute or public policy, must be enforced as written. If the insurance policy is susceptible to two or more reasonable interpretations, then it is considered ambiguous and must be liberally interpreted in favor of coverage. Reynolds, supra; Newby v. Jefferson Parish Sch. Bd., 99-0098 (La.App. 5th Cir.6/1/99), 738 So.2d 93; Araujo v. Eitmann, 762 So.2d at 225.

The purpose of liability insurance is to afford the insured protection from damage claims. Reynolds, supra. Insurance policies should be interpreted to effect, not deny, coverage. Yount v. Maisano, 627 So.2d 148, 151 (La.1993). Any ambiguity in an insurance policy’s exclusion should be narrowly construed to afford coverage. Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024, 1029. However it is also well-settled that unless a statute or public policy dictates otherwise, insurers have the right to limit liability and enforce conditions or limitations upon their insureds. Reynolds, 634 So.2d at 1183.

Discussion

In support of its motion for summary judgment, Underwriters submitted an affidavit of Rolf Heilgeist, claims manager for Underwriters who stated that in 2002, Lee Consulting Engineers, Inc. purchased professional liability insurance from Underwriters which was assigned policy number NAC1017. Mr. Heilgeist stated that a true, correct and authentic copy of the insurance policy was attached to the affidavit and that the policy identifies a retroactive date of February 1, 2002 and a coverage period of February 1, 2002 through February 1, 2003.

Attached to this affidavit is a document entitled “Evidence of Insurance,” which appears to be a declarations sheet containing the above 17information regarding the subject policy, including the retroactive date and the coverage period. A copy of the policy provisions was also attached to the affidavit. The retroactive date in the policy is defined as “the date as specified in the Schedule, on or after which any Wrongful Act must have occurred in order for Claims first made arising therefrom to be considered for coverage. Claims first made arising from any Wrongful Act prior to this date are not covered by this Evidence of Insurance.”

Underwriters also attached an endorsement to the policy which was effective on February 1, 2002 and amended the provisions of the coverage provisions of the policy.

In opposition to the insurer’s motion and in support of their cross-motion, plaintiffs argue that when the subject insurance policy was purchased, Mr. Lee was told that it was a claims-made policy that would cover all professional liability claims asserted during the coverage period. Plaintiffs claim that Mr. Lee was not told that a wrongful act giving rise to any claim must also take place during the policy period or subsequent to the retroactive date to recover under the policy. Rather, plaintiffs contend that Mr. Lee applied for and was sold a policy which would provide coverage for all claims made during the coverage period regardless of when the wrongful act occurred. Plaintiffs submitted the affidavit of Mr. Lee to support these facts. Plaintiffs further argue that the terms of the actual policy supports Lee’s interpretation, and to the extent coverage is not granted for the present claim, the terms of the policy are ambiguous and should be interpreted to afford coverage in this case.

Plaintiffs assert several arguments in favor of granting of insurance coverage in this case. First, plaintiffs contend that the documentation | ^attached to Underwriters’ motion for summary judgment is not evidence of the actual policy issued by the insurer in this case. However, the record indicates that Underwriters submitted an affidavit of its claims manager who stated that the documentation produced represents a true and correct copy of the actual policy which is kept in Underwriters’ records. We find no basis to hold that the copy of the policy in the record before us does not represent the true and correct terms of the policy provisions.

A review of those policy provisions indicates that the policy expressly requires the wrongful act to be committed and the claim to be reported during the coverage period for coverage to attach. Section I, Part B of the policy provides:

This insurance applies to Wrongful Acts, which are committed or alleged to have been committed anywhere in the world, provided that such Wrongful Acts:
1. were committed during the Coverage Period and Claim is first made against the Insured and reported to the Underwriters via the Correspondent during the Coverage Period or within 60 days after the end of the Coverage Period or during any Optional Extension Period, if purchased, or
2. which although committed prior to the Coverage Period and subsequent to the Retroactive Period, results in a Claim being first made against the Insured and reported to Underwriters via the Correspondent during the Coverage Period or within 60 days after the end of the Coverage Period or during any Optional Extension Period, if purchased, provided that the insured, prior to the effective date of the Coverage Period, did not know or could not have reasonably foreseen, that such Wrongful Acts might give rise to a Claim.

| pAlthough plaintiffs contend in their second argument that the endorsement to the policy changes the above-cited terms, we find no support for such an argument. A review of the endorsement indicates that it amends Section I, Part A, pertaining to coverage. A comparison of the endorsement with the terms of the policy indicates that the endorsement only made changes with regard to the provisions regarding reimbursement for costs of defense contained in Part A of the policy. Further, the endorsement does not refer to Part B of Section I, and the endorsement further includes the provision that “all other terms and conditions remain unchanged.” After review of the record, we find that the only difference between the policy provisions and the language of endorsement is the addition of |inParagraph 2 of section A regarding reimbursement for defense costs, an issue which is not disputed in the present case.

Under the circumstances presented here, we fail to find merit in plaintiffs’ argument that the language of the endorsement supersedes all of the provisions of the policy. Rather, a review of the endorsement language indicates it amends Part A with regard to coverage, and those terms as amended are not pertinent to this appeal. We find both the provisions of the policy and the language of the endorsement to be clear and unequivocal, and we find no support in plaintiffs’ argument that the endorsement changes the terms of the policy which requires wrongful acts to be committed and claims to be filed during the coverage period.

Lastly, plaintiffs argue that the policy purchased was represented by Underwriters to be a claims-made policy without regard to the application of a retroactive date and that the substantial premium paid by Lee supported this fact. Plaintiffs contend that under Underwriters’ interpretation of the policy, there can never be coverage under the policy based on the nature of the engineering work involved. For this reason, plaintiffs contend that the policy provisions as interpreted by Underwriters are against public policy.

However, language in an insurance policy which is clear, expresses the intent of the parties and does not violate a statute or public policy, must be enforced as written. Further, insurers have the right to limit liability and enforce conditions or limitations upon their insureds. Where a policy unambiguously and clearly limits coverage to acts discovered and reported during the policy term, such limitation of liability is not per se impermissible. Livingston Parish School Bd. v. Fireman’s Fund Am. Ins. Co., 282 So.2d 478, 481 (La.1973).

Inin the present case, the language of the policy is clear and unambiguous. According to express policy terms, the insured is covered if the wrongful act occurs during the policy period and the claim is made during that period. The language is unequivocal and there is no necessity for further interpretation. Furthermore, the language is not, per se, against public policy, nor do we find any public policy violation in our interpretation of the policy language. See Reichert v. Bertucci 94-1445 (La.App. 4 Cir. 1/31/95), 650 So.2d 821, 823.

We likewise find no merit in plaintiffs’ argument that Mr. Lee was not informed of the retroactive date when he applied for the subject insurance policy. In the present case, Mr. Lee submitted an application for a claims-made policy in January of 2002. The application was signed by him on January 25, 2002. Immediately above his signature on the application, there appears a notice to the applicant which provides as follows:

I understand and accept that the policy applied for provides coverage on a “claims-made” basis for ONLY THOSE CLAIMS THAT ARE FIRST MADE AND REPORTED TO THE UNDERWRITERS DURING THE POLICY PERIOD FOR ACTS THAT OCCUR AFTER THE POLICY’S RETROACTIVE DATE AND PRIOR TO THE EXPIRATION DATE OF THE POLICY.
(Emphasis in original.)

Although the insurance application does not represent a binding contract of insurance, it certainly evidences Mr. Lee’s understanding of the policy terms at the time he applied for the policy. The declarations page of the policy also clearly indicates that the retroactive date of the policy was the same date as the first date of the coverage period, February 1, 2002. Under these circumstances, we fail to find that Mr. Lee was misled as to the terms in the purchase of this policy.

118Conclusion

Accordingly, for the reasons assigned here, we find that the trial court ruling granting summary judgment to Certain Underwriters of Lloyds on the issue of coverage under the subject policy is correct and Underwriters is entitled to a judgment as a matter of law. We therefore affirm the trial court’s judgment. Plaintiffs shall bear all costs of this appeal.

AFFIRMED.

      . The endorsement provides as follows:
      In consideration of the premium charged, section I. Insurance Provided, is amended to read as follows:
      A. Coverage — Professional Liability and Claims-Made Clause
      1) Subject to the terms of the Policy, Underwriters agree to pay on behalf of the Insured all sums, in excess of the deductible, which the Insured shall become legally obligated to pay as Loss (including Claim Expenses) as a result of CLAIMS FIRST MADE AGAINST THE INSURED DURING THE COVERAGE PERIOD and reported to the Correspondent within 60 days after the end of the Coverage Period arising out of any Wrongful Act.
      2) Underwriters shall reimburse the Insured up to $10,000 per Coverage Period for Claim Expenses resulting from the defense of a proceeding before a state licensing board or governmental regulatory body incurred as the result of a notice of a proceeding first received by the Insured during the Coverage Period. It does not apply to any monetary awards of any kind, judgments, fines or settlements relating to, or directly or indirectly resulting from the institution of disciplinary proceedings. Underwriters shall not be required to provide any coverage to appeal any adverse ruling or judgement by such board or regulatory body. The deductible shall not apply to this coverage A(2). However, any payments made by Underwriters under this clause A(2) shall be included within the applicable limits of liability and not in addition to.
      Underwriters will defend any claim or suit against the Insured seeking such amounts. Underwriter's obligation to pay for Claim Expenses is limited as described under DEFENSE AND SETTLEMENTS.
      ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED.


text:
    Joshua N. BARBEROT v. The UNITED STATES LIFE INSURANCE COMPANY IN the CITY OF NEW YORK, State Street Bank and Trust Company, and Hibernia National Bank.
    No. 06-CA-299.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      E. John Litchfield, Carey B. Daste, Ber-rigan, Litchfield, Schonekas, Mann, Traína & Bolner, LLC, New Orleans, Louisiana, Arthur J. Lentini, Arthur J. Lentini, PLC, Metairie, Louisiana, for Plaintiff/Appellant.
    Covert J. Geary, John B. Rosenquest, IV, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., New Orleans, Louisiana, Andree Matherne Cullens, Edward D. Hughes, Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, Louisiana, Thomas J. Lutkewitte, Favret, Demarest, Russo & Lutkewitte, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   MARION F. EDWARDS, Judge.

13PlaintiffiappeIlant, Joshua N. Barberot (“Joshua”), appeals a summary judgment in favor of defendants/appellants, United States Life Insurance Company (“U.S.Life”), State Street Bank and Trust Company (“State Street”), and Hibernia National Bank (“Hibernia”), dismissing his claims with prejudice. We affirm in part, reverse in part, and remand.

The following facts are not in dispute: Joshua’s father, Patrick L. Barberot, Sr. (“Barberot”), died on February 13, 1999, while in the employ of the Greater New Orleans Expressway Commission. Through his employer, Barberot had an insurance policy with U.S. Life with a death benefit claim of $80,000, naming Joshua the sole beneficiary. On March 23, 1999, Joshua’s half-brother, Patrick L. Barberot, Jr. (“Patrick”) filled out a claim as “executor of Estate and Guardian of Joshua Barberot.” Patrick was notified by U.S. Life that he was not the proper | ¿party to claim the proceeds because Joshua was no longer a minor. On April 7, 1999, Joshua went to the Commission’s office with Patrick to fill out another claim. According to his deposition, Joshua signed the claim, but left his address blank “because [Patrick] said he’d take care of everything, and at the time I didn’t know where I was living.” The Director of Human Resources for the Commission, Eileen Barthe (“Barthe”), assisted Joshua in completing the claim, and Joshua assumed that Barthe chose the address listed on the claim form, which was that of Patrick.

The claim form indicated that Joshua elected to receive payment immediately. By doing so, according to the form:

If your proceeds are eligible and exceed the current applicable minimum ($5,000) set by the company, the proceeds will be placed into an interest-bearing account in your name. You may immediately write a check for the full amount or leave your account open and draw money only as you need it. Meanwhile, the funds will earn interest at the variable rate currently effective for United States Life Instant Access Accounts payable through State Street Bank and Trust Company. The Instant Access Account is not available to estates, trusts, or guardianships.

U.S. Life wired the proceeds of the policy to State Street, and, on April 23, 1999, sent a letter to Joshua, at Patrick’s address, stating that it was opening an Instant Access Account in his name payable through State Street. The checkbook for this account was sent to the same name and address. It appears from the record that Patrick forged nine drafts totaling $30,055, and cashed or deposited these into his own account at Hibernia, and these forgeries are not disputed. In October 1999, Joshua informed U.S. Life that he had not received the insurance proceeds and that the address originally listed on the claim form was that of his brother. Joshua later viewed the signatures on the drafts and informed U.S. Life that they | ¿were forgeries. U.S. Life determined that it had paid the proper amount of benefits under the insurance contract.

On May 24, 2001, Joshua filed suit in the Twenty-Fourth Judicial District Court against U.S. Life, State Street, and Hibernia. He alleged that U.S. Life was arbitrary and capricious in failing to pay the benefits due to him, and that it wrongfully directed the proceeds to be issued to Patrick’s address. He further alleged that U.S. Life should have been on notice of Patrick’s fraudulent attempts to make a claim. With regard to State Street, Joshua stated that, relying on information supplied by U.S. Life, State Street wrongfully issued the proceeds of the claim to the wrong address. According to the petition, U.S. Life and State Street were negligent in several particulars, including failing to properly notify Joshua of the proceeds, failing to contact him to confirm or deny the authenticity of the claimant, failing to investigate the source of the claim or investigate, and in issuing the proceeds to an address other than that of Joshua. Joshua averred that Hibernia was negligent in paying on a forged instrument.

At the hearing on the motions for summary judgment, the trial court determined that the action was purely in tort rather than contract and that prescription had run. Even assuming a contractual claim, the court found there was no breach of any demonstrable duty by any of the defendants. The court indicated that, by not filling in his address on the claim form, Joshua was negligent. Further, the court held that Joshua failed to demonstrate that U.S. Life did not follow its usual and customary procedures prior to issuing the proceeds.

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is | (¡appropriate. A genuine issue of fact is an issue on which reasonable minds could disagree. If reasonable persons could reach only one conclusion based on the state of the evidence, a genuine issue does not remain. According to LSA-C.C.P. art. 966, the burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

On de novo review, we find the court correctly granted summary judgment in favor of Hibernia. Barberot has not shown a contractual obligation that existed between him and Hibernia. Although Barberot may have had an action for conversion against Hibernia, the prescriptive period for bringing such an action has prescribed under LSA-R. S. 10:3-420(f). Further, any possible negligence action has also prescribed.

With regard to U.S. Life, the right of the beneficiary to receive benefits constitutes an interest in the insurance contract which becomes vested at the 17moment the contract comes into existence. The proceeds of life insurance, if payable to a named beneficiary, pass by virtue of the contract directly from the insurer to the beneficiary named in the policy. As the named beneficiary, Joshua has a cause of action in contract against U.S. Life. Because this is a summary judgment, we are not confined to the petition to determine the viability of a cause of action. On review, we find that Joshua has urged claims against U.S. Life both in tort and in contract, and that the contract action has clearly not prescribed. Not only does LSA-C.C. art. 3499 apply, but U.S. Life has provided in the insurance policy that legal action may be brought within three years after proof of claim is required. The present action was brought within that period.

U.S. Life presented an affidavit indicating that its practice of opening an interest bearing checking account in Joshua’s name is its standard practice, as well as standard practice in the industry. According to the Data Processing Services Agreement between State Street and U.S. Life, State Street agreed to perform accounting functions on behalf of U.S. Life, the latter of which retained the benefits or proceeds of the life insurance policies.

In connection with the services to be provided, State Street shall make payment on checks drawn against the account holder’s account. State Street shall notify Customer of the total amount paid. Customer agrees to maintain sufficient balances in its clearing account to accommodate the payment of such checks on its behalf.

Thus, it appears that U.S. Life allowed beneficiaries to access the applicable proceeds by making drafts against its account with State Street. By utilizing such an agreement, U.S. Life continued to maintain control over the insurance proceeds due to Joshua. Pursuant to the insurance policy terms, it had a duty to pay those proceeds to the named beneficiary.

| sN either the insurance policy nor the claim form state that failure of the beneficiary to completely or accurately sign and fill in the form relieves the insurer of its obligations under the policy. The completion of the form was witnessed by Barthe, who was aware that Patrick had previously attempted to claim the proceeds of the policy. Whether or not Joshua’s action in allowing his brother to complete the address form affected the present claim, and the circumstances under which this occurred, are at least some of the questions of fact precluding summary judgment in favor of U.S. Life.

The Instant Access Account maintained by U.S. Life is, according to the Data Processing Agreement, a “Retained Access Account.” The drafts or checks in question indicate that they are payable through State Street. The record does not disclose a separate contractual relationship between Joshua and State Street, but rather between State Street and U.S. Life. Therefore, the prescriptive period under LSA-C.C. art. 3499 does not apply to a suit between Joshua and State Street. However, LSA-R.S. 10:3— 118(g)(iii) and R.S. 10:4-111 specify a period of three years after a cause of action accrues to commence an action to enforce an obligation, duty, or right arising under the law of negotiable instruments. Subsection (g) covers warranty and conversion cases and other actions to enforce obligations or rights arising under Article 3. According to the record, Joshua’s cause of action against State Street has not prescribed.

There does not appear to be a question regarding the principal-manda-tary relationship between State Street and U.S. Life. Under the Data Processing Agreement, State Street owed U.S. Life the duty to verify signatures only on checks over $10,000. None of the drafts or checks in question was in that amount. Whether there was a duty on the part of State Street beyond the mandate to verify signatures on checks or drafts under $10,000, and to whom these duties may have |flbeen owed, are questions of law. Whether or not State Street properly performed any such potential duty is a question of fact that precludes summary judgment.

For the foregoing reasons, the judgment is affirmed in that Hibernia Bank is entitled to summary judgment in its favor. The judgment regarding U.S. Life and State Street is reversed, and the matter is remanded for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180; Moody v. United Nat'l Ins. Co., 98-287 (La.App. 5 Cir. 9/29/98), 743 So.2d 680, writ denied, 98-2713 (La.12/18/98), 734 So.2d 639.

      . Reynolds v. Select Properties, supra.

      . See, e.g., Williams v. Liberty Bank & Trust Co., 98-3008 (La.App. 4 Cir. 11/3/99), 746 So.2d 275.

      . T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1975).

      . Id.


author: EDWARD A. DUFRESNE, Jr., Chief Judge.

text:
    STATE of Louisiana v. Blake BAILEY.
    No. 06-KA-360.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gret-na, Louisiana, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Baton Rouge, Louisiana, for Defendani/Appel-lant.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   EDWARD A. DUFRESNE, Jr., Chief Judge.

Lin this matter defendant, Blake Bailey, has appealed a trial court ruling which revoked his probation. We dismiss the appeal for lack of jurisdiction.

On August 3, 2004, defendant pled guilty to one count of aggravated flight from an officer in violation of LSA-R.S. 14:108.1(0, and one count of illegal possession of stolen things valued at greater than $500, in violation of LSA-R.S. 14:69. The trial judge sentenced defendant to serve concurrent sentences of two years at hard labor on count one and three years at hard labor on count two. The judge suspended both sentences, placed defendant on active probation for three years, and imposed several conditions of probation.

On June 24, 2005, the state filed a motion to revoke defendant’s probation. After a contradictory hearing on June 30, 2005, the trial judge revoked defendant’s probation and ordered him to serve three years at hard labor on each count concurrently, with credit for time served. It is from this probation revocation that defendant now appeals.

| aThe state filed a motion to dismiss the appeal in this court, asserting that a probation revocation judgment is not an ap-pealable judgment. The state is correct in its assertion that the revocation of a defendant’s probation is subject to review in the appellate court by an application for supervisory writs, not by appeal. LSA-C.Cr.P. art. 912. See, State v. Franks, 04-1208 (La.App. 5 Cir. 4/26/05), 902 So.2d 450; State v. Goodman, 03-1279 (La.App. 5 Cir. 2/23/04), 868 So.2d 861; and State v. McDougald, 02-279 (La.App. 5 Cir. 9/30/02), 829 So.2d 525.

Accordingly, the state’s motion to dismiss the appeal is granted. However, we reserve the right of defendant to file his application for writ of review within thirty days of the date of this opinion.

APPEAL DISMISSED.