source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kalvin JONES.
    No. 11-KA-1009.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2012.

      Paul D. C'onnick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| ¡pKalvin Jones was charged in a bill of information with being a felon in possession of firearm in violation of LSA-R.S. 14:95.1. Defendant was arraigned and pled not guilty to the charge. After several continuances, a competency hearing and motion hearings, defendant withdrew his not guilty plea and pled guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The trial court sentenced defendant to 15 years at hard labor without benefit of parole, probation, or suspension of sentence and imposed a fíne of $40.00. Immediately following the sentencing, the State filed a multiple offender bill of information, alleging defendant to be a third felony offender. Defendant stipulated to the multiple bill. The trial court then vacated defendant’s sentence and imposed an enhanced sentence of 17 years at hard labor with the first 15 years to be served without benefit of parole, probation, or suspension of sentence and the ^remaining 2 years to be served without benefit of probation or suspension of sentence.

Following sentencing, defendant filed a motion to amend his guilty plea to include a reservation of an assignment of error, and the trial court denied this motion. However, the trial court issued a nunc pro tunc order, retroactively amending defendant’s guilty plea to have been made pursuant to State v. Crosby, 338 So.2d 584 (La.1976), thereby reserving his right to seek review of the trial court’s denial of his motion to suppress. The trial court then granted defendant’s motion for appeal. FACTS

The record in this case indicates that during the late evening of April 17, 2010, Jefferson Parish Sheriff Deputy Eddie Martin stopped a silver Pontiac Grand Prix for driving without headlights. The vehicle contained three occupants: the driver, a passenger in the front passenger seat, and a rear passenger seated behind the front passenger. The driver was only able to provide registration for the vehicle. While talking to the driver, the officer observed the two passengers reach for their respective doors, which prompted him to move to the other side of the vehicle. With his suspicions aroused, the officer removed defendant from the car, who was in the front passenger seat, to pat him down. As he did so, the officer observed defendant place his hand in his pocket, which provoked the officer to grab defendant’s arm, causing defendant to drop a handgun. The officer then pinned defendant up against the vehicle and handcuffed him, while holding the other passenger at gunpoint until his backup arrived. At this time, the officer advised defendant of his rights, which he indicated he understood. After securing Rdefendant, the officer noticed an object covered in a white sheet inside the vehicle near where defendant had been sitting. From under the sheet, what appeared to be the muzzle of a rifle protruded. The object turned out to be an assault rifle.

After being transported to the police station, defendant was informed of his rights for a second time. He executed a Rights of Arrestee form, waived his rights, and gave a statement, in which he admitted to having sole possession of the handgun and the assault rifle.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

DISCUSSION

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his ease to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that ^counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Counsel maintains that the bill of information was proper, that the trial court did not err in its denial of defendant’s motion to suppress, that defendant’s guilty plea was proper, that the | ^finding of defendant competent to stand trial was proper, and that defendant’s sentence was legal.

The State likewise contends that appellate counsel has shown a conscientious and thorough review of the procedural history of the case and that counsel has east an advocate’s eye over the record, determining there were no significant non-frivolous issues upon which to base an appeal. Consequently, the State requests that this Court affirm defendant’s conviction and sentence.

In appellate counsel’s motion to withdraw, he states that he notified defendant of the filing of the motion and advised him of his right to file a pro se brief. Additionally, this Court sent defendant a letter by certified mail informing him that an An-ders brief had been filed and that he had until December 14, 2011, to file a pro se supplemental brief. Defendant failed to file a supplemental brief.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

First, it appears that the bill of information in this case properly charged defendant and presents no non-frivolous issues supporting an appeal. As required, it plainly, concisely, and definitely states the essential facts constituting the offense charged. It also sufficiently identifies defendant and the crime charged. See generally LSA-C.Cr.P. arts. 464-66.

Second, as reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea, and his sentencing. As such, defendant’s presence does not appear to present any issue that would support an appeal.

Third, although not argued on appeal, the merits of defendant’s Crosby claim are considered. A review of the denial of defendant’s motion to suppress reveals no issues supportive of an appeal: both the physical evidence and 17statements were lawfully obtained. Regarding the physical evidence, this Court recognizes that the decision to stop a vehicle is reasonable when the police have probable cause to believe that a traffic violation has occurred. State v. Gomez, 06-417, p. 5 (La.App. 5 Cir. 11/28/06), 947 So.2d 81, 84. In State v. Winfrey, 359 So.2d 73, 76 (La.1978), the Louisiana Supreme Court found that a traffic stop was lawful when the vehicle was being operated at night without its lights. Since the vehicle in the present case was being operated without headlights around 10:45 p.m., in violation of LSA-R.S. 32:301(1), we find that Deputy Martin had probable cause to initiate the traffic stop.

Once an officer has lawfully stopped a vehicle for a routine traffic violation, he is authorized to order both the driver and passengers out of the vehicle pending completion of the stop. State v. Brown, 09-209, p. 5 (La.App. 5 Cir. 12/29/09), 30 So.3d 907, 911. Additionally, an officer conducting a traffic stop may perform a pat-down search of a driver and passengers upon reasonable suspicion that they may be armed and dangerous. Id. The Louisiana Supreme Court has recognized there is potential danger for an officer even during a routine traffic stop:

A police officer’s stopping a vehicle for a routine traffic violation sets up the possibility of a significant confrontational situation. The motorist may be driving a stolen vehicle, may be transporting contraband, may be in possession of illegal weapons, or may be involved in other criminal activity. The likelihood of danger may also be greater during darkness and in early morning hours, or when there are a number of occupants. A police officer who stops a vehicle for a routine traffic offense may be exposed, according to the circumstances, to a significant risk of attack, and concern for the safety of the officer may be a legitimate and weighty justification for reasonable intrusions into the privacy interests of the occupants of the stopped vehicle.

State v. Landry, 588 So.2d 345, 347 (La. 1991).

|sIn Brown, 09-209 at 3, 30 So.3d at 909, two state troopers stopped a vehicle for a routine traffic violation. Immediately upon stopping the vehicle, the troopers observed movements and nervous behavior by the occupants within the vehicle. Id,., 09-209 at 3, 30 So.3d at 909-10. This, plus the discovery of the driver’s prior narcotics conviction and conflicting information offered by the occupants, prompted the troopers to remove the occupants and conduct a pat down. Id., 09-209 at 6, 30 So.3d at 911. Based on these facts, this Court found the removal and pat down of the occupants was lawful. Id., 09-209 at 6-7, 30 So.3d at 911.

In the instant case, it was late at night when Deputy Martin, alone, stopped the vehicle containing three occupants. This setting, in conjunction with the passengers’ suspicious behavior and the driver’s inability to produce a driver’s license, was sufficient to justify Deputy Martin in removing defendant from the vehicle to conduct a pat down.

Having lawfully obtained the handgun by virtue of the pat down, we find that the seizure of the assault rifle was also lawful pursuant to the automobile exception to the warrant requirement. The automobile exception allows police to search a vehicle without a warrant if a car is readily mobile and probable cause exists to believe it contains contraband. State v. Francois, 04-1147, p. 11 (La.App. 5 Cir. 3/29/05), 900 So.2d 1005, 1013; accord State v. Long, 03-2592, p. 10 (La.9/9/04), 884 So.2d 1176, 1183 n. 6, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005). Considering the vehicle had just been stopped and defendant was discovered to be in possession of a handgun, we find that the vehicle was readily mobile and that Deputy Martin had probable cause to believe the vehicle contained contraband. Therefore, the officer’s seizure of the assault rifle was lawful.

^Furthermore, we find defendant’s statement that he possessed the handgun and assault rifle was lawfully obtained. Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived those rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. State v. Cambrice, 10-26, p. 19 (La.App. 5 Cir. 4/26/11), 64 So.3d 363, 375.

Defendant was twice informed of his rights — once on the scene and again at the police station — and executed a waiver of rights form prior to offering a statement. The record reveals no indication that defendant’s waiver and subsequent statement were not voluntarily and intelligently given. As a result, we find .that defendant’s statement was lawfully obtained.

Fourth, defendant pled guilty as charged and this Court has held that if a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

This Court has also held that once sentence is imposed, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a | mplea bargain and that bargain is not kept. McCoil, supra. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon (La.1984), 449 So.2d 463, 464.

The record shows that defendant was aware he was pleading guilty to one count of felon in possession of a firearm. The waiver of rights form, commitment, and plea colloquy all indicate that he was advised of his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama. Defendant also indicated during the colloquy that he understood that he was waiving these rights.

Defendant further stated that he had not been forced, coerced, or threatened to plead guilty. He was informed that by pleading guilty his guilty plea could be used to enhance a penalty for any future felony conviction. He was also advised of the sentencing range, that he would be sentenced to 15 years at hard labor without benefits in the event he pled guilty, and of the prescriptive periods for seeking post-conviction relief and appellate review.

Fifth, defendant’s stipulation to the multiple offender bill was proper. Defendant was advised of and waived his rights. He was informed of the sentencing range and the sentence that would be imposed in the event he pled guilty. And he was again advised of the prescriptive periods for seeking post-conviction relief and appellate review.

Lastly, defendant’s sentence does not present issues for appeal. His original sentence and his enhanced sentence were both within the sentencing range prescribed by statute. See LSA-R.S.14:95.1 and 15:529.1. Moreover, since his sentences were imposed pursuant to plea agreements, LSA-C.Cr.P. art. 881.2(A)(2) _J^precludes review of them. State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, defendant’s conviction and sentence are hereby affirmed and appellate counsel’s motion to withdraw as attorney of record is granted.

ERROR PATENT DISCUSSION

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

DECREE

Accordingly, for the reasons assigned herein, defendant’s conviction and sentence are affirmed and appellate counsel’s motion to withdraw as attorney of record is granted.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED

      . Although defendant pled guilty pursuant to State v. Crosby, 338 So.2d 584 (La.1976), he did not raise on appeal the trial court's denial of his motion to suppress.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . LSA-R.S. 32:301 provides in pertinent part: "Every vehicle upon a highway within this state shall display lighted lamps and illuminating devices as hereinafter respectively required for different classes of vehicles subject to exception with respect to parked vehicles at any of the following times: (1) At any time between sunset and sunrise.”

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. 2002 CHEVROLET TRAIL BLAZER. (In re Nathaniel White).
    No. 2011-KA-1088.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 25, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA for Appellee.
    Miles W. Swanson, New Orleans, LA, for Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

| ]This appeal concerns civil forfeiture pursuant to La.Rev.Stat. 40:2601 et seq. Mr. Nathaniel White appeals an in rem judgment against his 2002 Chevrolet Trailblazer, VIN # 1GNDS13SX22169603. Judgment was entered in favor of the State of Louisiana ordering that the vehicle be forfeited to the State. For the reasons that follow, we reverse the judgment of forfeiture.

FACTS AND PROCEDURAL HISTORY

On June 20, 2009, the New Orleans Police Department (“NOPD”) began an investigation after receiving a report from a confidential informant that Mr. White was selling narcotics from his residence at 1933 Elysian Fields Avenue, Apartment B. Based on the informant’s report, Detective Todd Durel had the informant make a controlled purchase of two pieces of crack cocaine from Mr. White at his residence. On June 22, 2009, after witnessing the controlled purchase, Detective Durel applied for a search warrant for Mr. White’s residence.

Before receiving the Order of Search, Detective Durel set up a surveillance of Mr. White’s residence to see if Mr. White was still selling narcotics. During the 12surveillance, Detective Durel observed Mr. White leave his residence and walk towards the parking lot. It was at this time that Mr. White was approached by a man on a bicycle. Detective Durel then witnessed Mr. White conduct a hand-to-hand transaction with the unknown man, whereby Mr. White reached in the front pocket of his pants and retrieved a small object from inside a larger bag in exchange for currency. The unknown man left the area, and Mr. White proceeded to his vehicle, a Chevy Trailblazer. While at his vehicle, Detective Durel observed Mr. White stand in the dooiway of the vehicle for a few minutes and then travel in a lake-bound direction on Elysian Fields Avenue.

Detective Durel contacted Detective Victor Grant and Detective Lawrence Jones to conduct a traffic stop on Mr. White. The officers stopped Mr. White and Detective Durel traveled to their location. Detective Durel searched Mr. White and did not feel any contraband. Detective Durel believed that contraband was stored in the vehicle, so he requested a K-9 Narcotics Unit search Mr. White’s vehicle. The narcotics canine alerted the officers that narcotics were present in the fuse box area of the vehicle. Officers recovered a large clear plastic bag from that area that contained crack cocaine. Mr. White was arrested on June 22, 2009, and charged with possession with intent to distribute cocaine.

On June 25, 2009, Agent Andrew Whitaker applied for and obtained a seizure warrant for Mr. White’s vehicle. On July 20, 2009, the district attorney commenced an in rein forfeiture proceeding against Mr. White’s vehicle. The property was seized pursuant to La.Rev.Stat. § 40:2601 et seq. based on the ^allegation it was used to facilitate the possession and distribution of cocaine in violation of La.Rev.Stat. § 40:967 and/or the vehicle was purchased with illegal proceeds from drug activity. Mr. White was served with a Notice of Pending Forfeiture four days later, on July 24, 2009. Mr. White filed two claims in opposition to the forfeiture proceeding. The State filed a Peremptory Exception of No Cause and/or No Right of Action alleging that Mr. White’s Request for Stipulation of Exemptions was invalid.

At the same time as the forfeiture proceeding, Mr. White was charged in a criminal proceeding by a bill of information with possession with intent to distribute cocaine, a felony in violation of La.Rev.Stat. 40:967. The forfeiture proceeding was continued until the resolution of Mr. White’s criminal trial. On June 2, 2010, a jury found Mr. White not guilty, and the verdict was entered. The forfeiture proceeding resumed on June 29, 2010. The forfeiture hearing was held on August 5, 2010, in the Magistrate Section Ml of Orleans Parish Criminal District Court. On August 13, 2010, the court issued its ruling denying Mr. White the return of his vehicle. Mr. White appealed the court’s decision before a three judge panel of the Orleans Parish Criminal District Court on June 16, 2011. The Rpanel ordered that the case be transferred to a court of proper jurisdiction. This appeal to the Louisiana Fourth Circuit Court of Appeal followed.

STANDARD OF REVIEW

A trial court’s ruling in an in rem forfeiture proceeding is reviewed under the manifest error/clearly wrong standard set forth in Rosell v. ESCO, since the forfeiture proceeding is a civil proceeding governed by the Louisiana Code of Civil Procedure, La.Rev.Stat. § 40:2611(K). State v. Seventy-Seven Thousand Fourteen & No/100 ($77,014.00) Dollars (Hui Suk Perez), 607 So.2d 576, 582 (La.App. 3 Cir. 1/29/92), writ denied 612 So.2d 61 (La.1/29/93); State v. Bell, 2010-0583, p. 4 (La.App. 1 Cir. 10/29/10); 48 So.3d 1253, 1255, writ denied, 10-2629 (La.1/28/11); 56 So.3d 962; State v. Issac, 31,277, p. 4 (La.App. 2 Cir. 12/9/98); 722 So.2d 353, 356. The manifest error/clearly wrong standard does not allow an inquiry regarding whether the trial court was right or wrong, but whether its determinations were reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In the event, the trial court commits an error of law, however, the applicable standard of review is de novo. Edwards v. Pierre, 08-0177, p. 8 (La.App. 4 Cir. 9/17/08); 994 So.2d 648, 656.

ASSIGNMENTS OF ERROR

On appeal appellant, Mr. White, raises two assignments of error, which we condense: (1) the trial court erred when it found that the State proved by a preponderance of the evidence that Mr. White’s vehicle was subject to forfeiture; Rand (2) the civil forfeiture action constitutes double jeopardy against Mr. White in violation of the United States and Louisiana Constitutions.

LAW AND ANALYSIS

Civil forfeiture is the process whereby the State seizes property without compensating the owner because of the property’s connection with the commission of a crime. State v. $107,156 U.S. Currency Seized from Marlin Morton & Richard Woods, 41,090, p. 13 (La.App. 2 Cir. 6/30/06); 935 So.2d 827, 835, writ denied, 06-2271 (La.11/22/06); 942 So.2d 557. The Seizure and Controlled Dangerous Substances Property Forfeiture Act, (“Forfeiture Act”) La.Rev.Stat. § 40:2601-2622, provides procedures for the forfeiture of property that is a controlled dangerous substance, property that is furnished or intended to be furnished by any person in exchange for a controlled dangerous substance, property used or intended to be used in any manner to facilitate conduct giving rise to forfeiture, or property that constitutes proceeds from any conduct giving rise to forfeiture. State v. Property Seized from, Terrance Martin, 09-1417, p. 3 (La.App. 1 Cir. 3/30/10); 37 So.3d 1021, 1025; La.Rev.Stat. § 40:2604. The Forfeiture Act not only provides “... a process by which the State is able to have forfeited such property in a speedy, fair, and efficient manner, ... but also provides a means through which an innocent owner or interest holder can regain his property in a speedy and relatively inexpensive process.” State v. 2003 Infiniti G35 VIN No. JNKCV51E93M021467, 09-1193, p. 5 (La.1/20/10); 27 So.3d 824, 828.

|fiIn Mr. White’s first assignment of error, he contends that the trial court erred in concluding that his vehicle was subject to forfeiture under the Forfeiture Act. Mr. White’s main argument on appeal is that the State did not prove beyond preponderance of the evidence that there was a relationship between his vehicle and the alleged illegal activity or that his vehicle was purchased with the fruits of the alleged illegal activity, as required by La. Rev.Stat. § 40:2612(G). Accordingly, Mr. White contends the forfeiture was improper.

The issue shall be determined by the court alone, and the hearing on the claim shall be held within sixty days after service of the petition unless continued for good cause. In a forfeiture case wherein no claim is timely filed pursuant to the provisions of this Chapter, the burden of proof to forfeit shall be probable cause. In a forfeiture case, wherein a claim is timely filed pursuant to the provisions of this Chapter, the burden of proof required to forfeit the defendant’s property shall be a preponderance of the evidence, (emphasis added)

The State submits that the trial court properly found that the State met its burden of demonstrating that the vehicle was “used or intended to be used in any manner to facilitate conduct giving rise to forfeiture” pursuant to La.Rev.Stat. § 40:2604(2)(b). The State also argues that Mr. White’s assertion that forfeiture proceeding requires proof beyond preponderance of the evidence is incorrect. The State submits the appropriate burden of proof in this case was probable cause because no claim was timely filed by Mr. White pursuant to La.Rev.Stat. § 40:2612(G). In any event, however, the State argues that the burden of proof is |7irrelevant because the State met its burden under the probable cause standard and preponderance of the evidence standard.

The Forfeiture Act provides specific instructions for the seizure of property constituting proceeds of any drug-related conduct punishable by confinement for more than one year under La.Rev.Stat. § 40:961, et seq. Terrance Martin, 37 So.3d at 1025. The owner of the seized property or an interest holder in the seized property may file a claim within thirty days after the Notice of Pending Forfeiture or Request for a Stipulation of Exemption with the district attorney within thirty days after the notice. Id. La.Rev.Stat. § 40:2609(A)(2). This claim must comply with the requirements set forth in La.Rev. Stat. § 40:2610.

The plain-language requirements for the filing of a timely, valid claim or request for stipulation are unambiguous, and the failure to follow the statutory requirements of La.Rev.Stat. § 40:2610 carry significant consequences. Infiniti, 27 So.3d at 834; Terrance Martin, 37 So.3d at 1027. The Forfeiture Act |sspecifically states that when “no request for stipulation or claim is filed timely, the district attorney shall proceed as provided in Sections 2615 and 2616.” Infiniti, 27 So.3d at 834; La.Rev.Stat. § 40:2609(C). La.Rev. Stat. § 40:2615(A) states in pertinent part that in an uncontested in rem proceeding, once the State gives proper notice and shows facts sufficient to show probable cause for the forfeiture, the court will order the property forfeited. Infiniti, 27 So.3d at 834; La.Rev.Stat. § 40:2612(G). In a contested in rem proceeding, the State bears the burden of proving by preponderance of the evidence the connection between the drug trade and the seized property. Bell, 48 So.3d at 1256; State v. Green, 42,253, p. 3 (La.App. 2 Cir. 6/20/07); 960 So.2d 1270, 1272; La.Rev.Stat. § 40:2612(G).

An owner of or an interest holder in the property may elect to file a claim within thirty days after the Notice of Pending Forfeiture or a request for a stipulation of exemption with the district attorney within thirty days after the notice, but no request may be filed after a court action has been commenced by the state. The claim or request shall comply with the requirements for claims in Section 2610 of this Chapter.

The State contends that Mr. White’s Request for Stipulation of Exemptions was timely filed but was insufficient as to form and substance, thus the claim was invalid. In the present case, Mr. White was served with Notice of Pending Forfeiture by the sheriff on July 24, 2009. Mr. White, as a pro se incarcerated litigant, filed a Request for Stipulation of Exemptions on August 7, 2009, within the statutorily required thirty day deadline. A subsequent claim in opposition was filed by Mr. White’s attorney, The state filed a Peremptory Exception of No Cause and/or No Right of Action alleging that Mr. White’s stipulation failed to meet the requirements under the Forfei-tare Act. A review of the record does not evidence that the trial court found Mr. White’s stipulation to be insufficient. Since Mr. |aWhite filed a timely and valid claim upon receipt of the Notice of Pending Forfeiture, the preponderance of evidence standard of proof was appropriately used by the trial court during the contradictory hearing to determine if Mr. White’s vehicle was subject to forfeiture.

Proof by a preponderance of the evidence requires the evidence to show that the fact or cause to be proven is more probable than not. State v. One (1) 1991 Pontiac Trans Sport Van, Vin # 1GMCU06D3MT20832, 98-64, p. 4 (La. App. 5 Cir. 7/9/98); 716 So.2d 446, 449 (quoting Crowell v. City of Alexandria Through Snyder, 558 So.2d 216 (La.1990)); Hanks v. Entergy Corp., 06-477, p. 19 (La.12/18/06); 944 So.2d 564, 578 (“Proof is sufficient to constitute a preponderance when the entirety of the evidence both direct and circumstantial, shows the fact sought to be proved is more probable than not.”). After reviewing the record in its entirety, we find the State failed to meet its burden of proof by preponderance of the evidence that Mr. White’s vehicle was subject to forfeiture. We also find that Mr. White’s assertion that the trial court based its decision to seize his vehicle on Judge Pittman’s denial of his motion to suppress in his criminal proceedings to be without merit.

At the forfeiture hearing, Detective Du-rel testified that he saw Mr. White conduct what he believed to be a hand-to-hand drug transaction. Detective Durel stated that an unknown male approached Mr. White and gave Mr. White currency in the exchange for some objects. Detective Du-rel testified that the unknown male fled the scene and was never arrested. Detec-five Durel admitted that he was unable |into ascertain with certainty if the unknown male purchased narcotics. Mr. White then walked to his vehicle and stood in the doorway of his vehicle for a few minutes before driving away. Detective Mr. White testified that Mr. White did not make any furtive movements while standing in the doorway of the vehicle. NOPD conducted a traffic stop a few blocks away and retrieved a bag of narcotics from the fuse box of Mr. White’s vehicle.

We find that the State failed to establish that the vehicle was used or intended to be used in any manner to facilitate Mr. White selling narcotics. Although we recognize that narcotics were found, the evidence in this record is insufficient to show that the vehicle was being used to facilitate Mr. White in selling narcotics. The narcotics were found in the vehicle’s fuse box. Drivers do not have access to the fuse box when the vehicle’s door is closed. Detective Durel testified that he did not see Mr. White make any furtive movements to indicate that he was hiding or retrieving narcotics in the vehicle after the alleged hand-to-hand narcotic transaction. Moreover, Detective Durel never located the alleged customer to find out if in fact Mr. White sold him narcotics. These facts coupled with Mr. White’s acquittal of the criminal charges at the center of the forfeiture of his vehicle further supports that the forfeiture was improper.

Therefore, we find that the trial court erred when it determined that the State proved by a preponderance of the evidence Mr. White’s vehicle was subject to forfeiture. The resolution of Mr. White’s first assignment of error is dispositive, thus, there is no need to address whether the forfeiture of Mr. White’s vehicle lnviolated the Double Jeopardy Clause of the United States and Louisiana Constitutions. DECREE

For the foregoing reasons, the August 18, 2010, judgment ordering forfeiture of Mr. White’s 2002 Chevrolet Trailblazer, VIN number 1GNDS13SX22169603, is reversed. We hereby order that the seized vehicle be returned to Mr. White.

REVERSED AND RENDERED

      . La.Rev.Stat. § 40:967 provides in pertinent part:
      A. Manufacture; distribution. Except as authorized by this Part I or by Part VII-B of Chapter 5 of Title 402 of the Louisiana Revised Statutes of 1950, it shall be unlawful for any person knowingly or intentionally:
      (1) To produce, manufacture, distribute, or dispense or possess with intent to produce,
      manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule ii:
      (2) To create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance classified in Schedule II.

      . The case number was 489-749.

      . La.Rev.Stat. § 40:2612(G) provides:

      . La.Rev.Stat. § 40:2604 provides in part:
      The following property is subject to seizure and forfeiture as contraband, derivative contraband, or property related to contraband under the provision of Section 4 of Article I of the Constitution of Louisiana:
      (1) All controlled substances, raw materials, or controlled substance analogues that have been manufactured, distributed, dispensed, possessed, or acquired in violation of R.S. 40:961 et seq.
      (2) All property that is either:
      (a) Furnished or intended to be furnished by any person in exchange for a controlled substance in violation of R.S. 40:961 etseq.

      (b) Used or intended to be used in any manner to facilitate conduct giving rise to forfeiture, provided that a conveyance subject to forfeiture solely in connection with conduct in violation of R.S. 40:961 et seq. may be forfeited only pursuant to the provisions of this Chapter.
      (3) Proceeds of any conduct giving rise to forfeiture.

      . La.Rev.Stat. § 40:2609(A)(2) provides:

      . La.Rev.Stat. § 40:2610 provides:
      A. Only an owner or an interest holder in property seized for forfeiture may file a claim, and shall do so in the manner provided in this Section. The claim shall be mailed to the seizing agency and to the district attorney by certified mail, return receipt requested, within thirty days after Notice of Pending Forfeiture. No extension of time for the filing of a claim shall be granted.
      B. The claim shall be in affidavit form, signed by the claimant under oath, and sworn to by the affiant before one who has authority to administer the oath, under penalty of petjuiy or false swearing and shall set forth all of the following:
      (1) The caption of the proceedings as set forth on the Notice of Pending Forfeiture or petition and the name of the claimant.
      (2) The address where the claimant’s interest in property.
      (3) The date, identity of the transferor, and the circumstances of the claimant’s acquisition of the interest in the property.
      (4) The specific provision of this Chapter relied on in asserting that the property is not subject to forfeiture.
      (5) All essential facts supporting each assertion.
      (6) The specific relief sought.

      .La.Rev.Stat. § 40:2615(A) provides:
      If no claims are timely filed in an action in rem, the district attorney may apply for an order of forfeiture and allocation of forfeited property pursuant to Section 2616 of this Chapter. Upon determination by the court that the district attorney’s written application establishes the court’s jurisdiction, the giving of proper notice, and facts sufficient to show probable cause for forfeiture, the court shall order the property forfeited to the state.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Troy HARRIS.
    No. 2011-KA-0715.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 25, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Edward R. Grunlee, Louisiana Appellate Project, LaPlace, LA, for Defendant/Appellant.

      (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   EDWIN A. LOMBARD, Judge.

| iTroy Harris appeals his convictions for aggravated rape, aggravated kidnapping, and indecent behavior with a juvenile in the presence of an individual under the age of thirteen years. After review of the record in light of the applicable law and arguments of the parties, the defendant’s convictions and sentences are affirmed.

Relevant Facts and Procedural History

On August 28, 2008, the defendant was indicted by a grand jury for aggravated rape, aggravated kidnapping, and indecent behavior with a juvenile in the presence of an individual under the age of thirteen years. He was arraigned on November 3, 2008, and pleaded not guilty. Although informed of his right to be tried by a judge or a jury, he did not make a selection at the arraignment hearing. However, when the matter came to trial on May 4, 2010, as indicated in the following colloquy, the defendant elected to waive his right to trial by jury and proceed with a judge trial:

DEFENSE COUNSEL: Judge, at this time Mr. Harris wants to waive his right to a jury trial. I have met with Mr. Harris several times on this issue, and several times he has told me of his desire to waive the jury. I have told him about the consequences, and I have instructed him that my advice was to not waive the jury trial, but he wants to go ahead and waive the jury trial and proceed with a judge trial.
JUDGE: What do you care to do, sir? DEFENDANT: What?
12JUDGE: You have the right to be tried before a judge or a jury. Make your selection.
DEFENDANT: A judge.
JUDGE: Alright. Let the record reflect that the defendant has indicated that he wants a judge trial.

Shortly thereafter, the judge trial began. After the State’s first witness, Detective Kurt Coulon of the New Orleans Police Department (the investigating officer), completed his testimony, however, the judge recessed the trial. The following day (May 5, 2010), rather than continuing the trial, the judge opened a hearing to determine if the defendant was competent to proceed with the trial.

After interviewing the defendant, Dr. Sarah Deland, an expert in Forensic Psychiatry, testified that he understood the charges, the seriousness of those charges, his legal rights, offered a plausible explanation for choosing a judge trial over a jury trial, and had an adequate understanding of the proceedings. However, Dr. Deland was concerned because the defendant expressed paranoid ideas about his current attorney, as well as one idea about his defense that she did not believe |swas rooted in rational thinking. Thus, although she believed the defendant had an adequate understanding of the proceedings, Dr. Deland questioned his ability to effectively assist counsel and, in order to reach a final decision, was interested in obtaining a second opinion from another doctor. Accordingly, the trial court appointed Dr. Raphael Salcedo and Dr. Richard Richaux to participate in the sanity commission and the matter was recessed.

On May 11, 2010, Dr. Richaux testified that he along with Dr. Salcedo interviewed the defendant on May 6, 2010. Dr. Ri-chaux stated that the defendant showed no signs of psychotic symptoms, did not say anything of a delusional nature, and was not showing any disorganization or abnormalities of thought process or content. Dr. Richaux discussed the contents of the defendant’s letter to his sister with him and opined that the defendant was not describing true visual hallucinations but, rather, something akin to an image in his mind when he talked about God. Dr. Ri-chaux testified that the defendant understood the nature of the proceedings and, in his opinion, was fully capable of assisting counsel in that he could listen to testimony, point out any inconsistencies to counsel, and testify on his own behalf if necessary. It was stipulated that if Dr. Salcedo were to testify, his testimony would be substantially similar to Dr. Richaux’s testimony. Based upon the testimony and stipulated testimony, the judge found that the defendant understood the nature of the proceedings and was able to assist his attorney in his defense.

On May 18, 2010, the trial resumed. The State presented the testimony of the ten-year-old victim, the victim’s eight-year-old sister, the victim’s mother, Dr. Mayling Gutierrez Walker (a clinical psychologist who interviewed the victim at the New Orleans Child Advocacy Center), and Dr. Yameika Head (the pediatric president who examined the victim at the New Orleans Child Advocacy Center). After submitting videotapes of the forensic interviews with the victim and the victim’s sister into evidence, the State rested. The defendant moved for a directed verdict, which was denied, and then replayed portions of the videotaped interviews. After replaying portions of the videotaped interviews, the defense rested. After closing arguments, the trial judge found the defendant guilty of indecent behavior with a juvenile in the-presence of an individual under the age of thirteen years, aggravated kidnapping, and attempted aggravated rape.

The defendant was sentenced to concurrent sentences of life imprisonment without benefit of probation, parole, or suspension of sentence for aggravated kidnapping, a twenty-five year term of imprisonment for attempted aggravated rape, and a twenty-five year term of imprisonment for indecent behavior with a juvenile in the presence of an individual under the age of thirteen years.

Discussion

In his only assignment of error, that defendant argues that the trial judge erred in allowing him to waive a jury trial without further questioning concerning his understanding of the consequences and his constitutional right to a jury trial. The defendant contends that the colloquy was insufficient in light of the fact that his mental competency had been questioned. Furthermore, the defendant contends that his waiver was insufficient because the trial judge failed to inform him that his right to a jury trial was a constitutional right.

Pursuant to La.Code Crim. Proc. art. 780(A) “[a] defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge.” Although the waiver generally is |¿¡entered at arraignment, at the time of the defendant’s trial, a trial judge could accept a waiver of a jury trial at any time before the trial began. La.Code Crim. Proc. art. 780(B). The waiver is valid only if the defendant acted voluntarily and knowingly and, thus, because the waiver must be express and cannot be presumed the record must show a knowing and intelligent waiver. State v. Duplessis, 2007-1005, p. 5 (La.App. 4 Cir. 12/19/07), 974 So.2d 65, 68 (citations omitted). However, although the trial judge must determine if the defendant’s waiver is knowing and intelligent, that determination does not require a Boykin-like colloquy. Id.

The record in this case reflects that when counsel for the defendant informed the trial judge of the defendant’s decision to waive his right to a jury, counsel advised the court that (1) he met with the defendant on several occasions to discuss the decision; (2) he advised the defendant of the consequences of his decision; (3) he counseled Mr. Harris against waiving the jury; and (4) despite his advice, the defendant decided to proceed with a judge trial. The trial judge then personally addressed the defendant and advised him again of his right to be tried by a jury or a judge before asking him to make his selection. The defendant clearly stated that he wanted a judge trial.

Although the defendant’s competency was called into question, the trial court found the defendant competent to proceed and the trial court’s decision is fully supported by the record. There is nothing to suggest that the defendant was not capable of making an informed decision. Furthermore, the jury trial waiver | (¡occurred prior to any issue of the defendant’s competency being called into question and was treated appropriately.

Finally, the defendant’s suggestion that the waiver was inadequate because the trial judge failed to advise him that his right to a jury trial was guaranteed by the Constitution is without merit. Trial judges are not called upon to advise defendants of the basis of their rights. Rather, it is sufficient that the defendant was clearly and unequivocally advised that he had a right to be tried by a jury. Accordingly, on the record before us, we find that the defendant was adequately advised of his right to a jury trial and that he knowingly and voluntarily waived that right. This assignment of error is without merit.

Error Patent Review

A review of the record fails to show with respect to the sentences imposed for counts one and three of the indictment that the district court imposed any restrictions on parole eligibility. The sentencing provision for aggravated rape requires that the entire sentence be imposed without parole eligibility, and the sentencing provision for indecent behavior with a juvenile requires that the first two years of the sentence be imposed without parole eligibility. See La.Rev.Stat. 14:42; La. Rev.Stat. 14:81(H)(2). However, pursuant to La.Rev.Stat. 15:301.1(A) and State v. Williams, 2000-1725, p. 10 (La. 11/28/01), 800 So.2d 790, 799, the sentences are deemed to have been imposed with the restriction despite the trial court’s failure to delineate the parole restrictions. Thus, there is no need for this court to correct the sentence. See State v. Phillips, 2003-0304, p. 3 (La.App. 4 Cir. 7/23/03), 853 So.2d 675, 677. | Conclusion

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The transcript indicates that concern as to his competence was created by statements the defendant made in a letter to his sister, the victim’s mother, describing his vision involving God offering him forgiveness.

      . Pursuant to State v. Bennett, 345 So.2d 1129 (La. 1977) (on rehearing), the decision regarding a defendant’s competency to stand trial should not turn solely upon whether he suffers from a mental disease or defect, but must be made with specific reference to the nature of the charge, the complexity of the case, and the gravity of the decision with which the defendant is faced. Thus, the appropriate considerations in determining whether the defendant is fully aware of the nature of the proceedings include whether (1) he understands the nature of the charge and can appreciate its seriousness; (2) he understands what defenses are available; (3) he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; (4) he has an awareness of his legal rights; and (5) he understands the range of possible verdicts and the consequences of conviction. Bennett, 345 So.2d at 1138. In determining the defendant's ability to assist in his defense, the court should consider whether (1) he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; (2) he is able to assist counsel in locating and examining relevant witnesses; (3) he is able to maintain a consistent defense; (4) he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; (5) he has the ability to make simple decisions in response to well-explained alternatives; (6) if necessary to defense strategy, he is capable of testifying in his own defense; and (7) to what extent, if any, his mental condition is apt to deteriorate under the stress of trial. Id.

      . Art. I, § 17 of the Louisiana Constitution has since been amended to provide that the waiver must occur "no later than forty-five days prior to the trial date and the waiver shall be irrevocable.”


author: TERRI F. LOVE, Judge.

text:
    Ruth J. WILLIAMS v. LOUISIANA CITIZENS FAIR PLAN.
    No. 2011-CA-1471.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 2, 2012.

      Robert Charles Lehman, Mandeville, LA, for Plaintiff/Appellant.
    Rachael P. Catalanotto, Craig Joseph Robichaux, Talley Anthony Hughes & Knight, Mandeville, LA, for Defendant/Ap-pellee.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge MADELEINE M. LANDRIEU).
   TERRI F. LOVE, Judge.

| iMs. Ruth Williams claimed to have suffered damages to her personal property as a result of Hurricane Katrina. She filed suit alleging that her insurer, Louisiana Citizens Property Insurance Corporation, acted in bad faith by refusing to pay her claim for property damages.

At the conclusion of the trial on the merits, the trial court found that Ms. Williams failed to satisfy her burden of proving that she had sustained personal property damages and of proving that her insurer’s refusal to pay was arbitrary, capricious and without probable cause.

After a review of the record, we find the trial court’s findings were reasonable and were not clearly wrong or manifestly erroneous.

FACTS AND PROCEDURAL HISTORY

Appellant, Ruth Williams, claims to have suffered personal property damages as a result of Hurricane Katrina on August 29, 2005 to a four-plex which she owned. Ms. Williams filed claims with her flood and property insurer, Louisiana Citizens Property Insurance Corporation (“Louisiana Citizens”). Louisiana Citizens issued payments of approximately $117,000.00 for her flood Uclaim and approximately $85,000.00 for her immoveable property damage and additional living expenses.

The first adjustor from Louisiana Citizens inspected Ms. Williams’ property in September 2005. Subsequent to this inspection, Ms. Williams attended a mediation with Louisiana Citizens. At no time during the initial inspection and the mediation did Ms. Williams file a contents claim. Another inspection was conducted by a Louisiana Citizens adjustor at her property on December 4, 2006. She did not file a contents claim at that time. On August 30, 2007, Ms. Williams filed suit against Louisiana Citizens, asserting breach of contract and alleging that she incurred damages to her immoveable property; she did not allege damages to her personal property or contents.

It was not until settlement discussions, which occurred more than three years after Hurricane Katrina, that Ms. Williams claimed to have lost personal property. She provided Louisiana Citizens with a list of personal property, but she did not provide any receipts or cancelled checks to support her claim.

A trial on the merits was conducted on May 2, 2011. The claims before the trial court were Ms. Williams’ alleged personal property losses and Louisiana Citizen’s alleged bad faith for refusing to pay for the allegedly lost personal property. After taking the matter under advisement, the trial court found that Ms. Williams failed to meet her burden of proof and dismissed Ms. Williams’ claims.

Ms. Williams now appeals and presents six (6) assignments of error.

| ^ASSIGNMENTS OF ERROR
1. Ms. Williams asserts the trial court erred by not finding that Louisiana Citizens Fair Plan failed to act fairly and in good faith by refusing to pay a damage claim without cause and that the insurance company failed to advise her of any reason for nonpayment of the claim.
2. Ms. Williams asserts the trial court erred by ruling that she did not introduce sufficient evidence to prove loss of her personal property through the introduction of certain evidence and testimony.
3. Ms. Williams avers the trial court erred by finding that there was no personal property damage.
4. Ms. Williams submits the trial court further erred by not imposing statutory penalties on Louisiana Citizens Fair Plan for alleged material misrepresentation of the insurance policy coverage during trial.
5. Ms. Williams asserts the trial court erred by overruling her timely objections to the testimony of two witnesses called by the insurance company not listed on the filed witness list.
6. Ms. Williams additionally maintains the trial court erred by not allowing her to present rebuttal testimony.

LAW AND DISCUSSION

Standard of Review

The standard of appellate review of a trial court’s factual findings is well-settled: A court of appeal may not set aside a trial court’s or a jury’s finding of fact |4in the absence of “manifest error” or unless it is “clearly wrong.” The Supreme Court set forth a two-part test for the reversal of a factfinder’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). On appeal, the issue to be resolved is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Assignment of Error 1

Appellant Williams argues the trial court erred by not finding that Louisiana Citizens failed to act fairly and in good faith by refusing to pay a damage claim, without cause, and that the insurance company failed to advise her of any reason for nonpayment of the claim. We find no merit in this argument.

A fact finder’s conclusion regarding statutory penalties and attorney fees is in part a factual determination which should not be disturbed unless it is manifestly erroneous. U.S. Fidelity & Guaranty Co. v. Hussain, 1999-2515, p. 6 (La.App. 4 Cir. 8/2/00), 775 So.2d 27, 31.

Louisiana Revised Statutes 22:658 formerly provided, in pertinent parts:

LA. (1) All insurers issuing any type of contract ... shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest.
B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor, as provided in R.S. 22:658(A)(1) ... when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of ten percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, ... together with all reasonable attorney fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, ten percent of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney fees for the prosecution and collection of such amount.

Louisiana Revised Statutes 22:1220 provided, in pertinent parts:

A. An insurer ... owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured.... Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.

|fiIn Calogero v. Safeway Ins. Co. of La., 99-1625, (La.1/19/00), 753 So.2d 170, the Louisiana Supreme Court noted the similarity between the conduct prohibited in La.R.S. 22:658(A)(1) and in La.R.S. 22:1220(B)(5): the failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause. The primary difference is the time periods allowed for payment. Id. Furthermore, La.R.S. 22:658 and La.R.S. 22:1220 are penal in nature and must be strictly construed. Hart v. Allstate Insurance Company, 437 So.2d 823, 827 (La.1983).

A claimant, such as Appellant Williams, who claims entitlement to penalties has the burden of proving the insurer received satisfactory proof of loss as a predicate to a showing that the insurer was arbitrary, capricious, or without probable cause. Id. at 828. It logically follows from this burden that a plaintiff who possesses information that would suffice as satisfactory proof of loss, but does not relay that information to the insurer is not entitled to a finding that the insurer was arbitrary or capricious. Id. The sanction of penalties is not assessed unless a plaintiffs proof is clear that the insurer was in fact arbitrary, capricious, or without probable cause in refusing to pay. Block v. St. Paul Fire & Marine Ins. Co., 32,306, p. 7 (La.App. 2 Cir. 9/22/99), 742 So.2d 746, 751. On rehearing, the Louisiana Supreme Court in Rudloff v. Louisiana Health Services and Indemnity Co., 385 So.2d 767, 771 (La.1980) opined that statutory penalties are inappropriate when the insurer has a reasonable basis to defend the claim and acts in good-faith reliance on that defense. Especially when there is a reasonable and legitimate question as to the extent and causation of a claim, bad faith should not be inferred from an insurer’s failure to pay within the statutory time limits when such reasonable doubts exist. Block, 32,306 at 8, 742 So.2d at 752.

|7The testimony of Ms. Williams revealed that she did not make a claim for content losses until more than three years after Hurricane Katrina, although she had meetings with adjustors from Louisiana Citizens since approximately September 2005. During a mediation that occurred between September 2005 and September 2008, Ms. Williams did not make a claim for personal moveable property. In two letters from Ms. Williams to Louisiana Citizens, which were admitted into evidence without objection, Ms. Williams fails to claim a loss of personal property. Also, in her complaint against Louisiana Citizens to the Louisiana Department of Insurance, which was also admitted into evidence, Ms. Williams indicated that the Federal Emergency Management Agency (FEMA) had paid for her personal property.

Bryan Newell, an adjustor for Louisiana Citizens, testified that during his inspection of Ms. Williams’ property on December 4, 2006, she specifically told him that she had not suffered losses to her personal property at that time. She did, however, tell him about additional structural damage and additional living expense losses. When Ms. Williams was questioned about her statement to Mr. Newell, she stated she did not remember telling him that. Mr. Newell’s testimony further revealed that after he inspected Ms. Williams’ property, he reviewed his report with her and that she did not disagree with it. Even after reviewing Mr. Newell’s report, Ms. Williams did not raise a contents loss with him.

The burden is on the insured to prove arbitrariness, capriciousness or lack of probable cause. Sanders v. Wysocki, 92-1190, p. 8 (La.App. 4 Cir. 1/27/94), 631 So.2d 1330, 1335. We find that based upon the record, the trial court reasonably concluded that Ms. Williams failed to satisfy her burden of proving that Louisiana | ^Citizens acted arbitrarily or capriciously or lacked probable cause in denying her claim and, therefore, Ms. Williams was not entitled to penalties and attorney fees.

Assignments of Error 2 and 3

In her second and third assignments of error, Ms. Williams asserts the trial court erred by: 1) ruling that she did not introduce sufficient evidence to prove loss of her personal property through the introduction of certain evidence and testimony; and 2) finding that there was no personal property damage. We find no merit in Appellant’s arguments.

The trial court assessed the credibility of all witnesses, including Appellant Williams. Upon questioning by the court, Ms. Williams admitted that although she made her purchases with checks, she had not obtained copies of cancelled checks to prove the amounts she claimed she had paid for her personal property. She explained that it was cost prohibitive for her to obtain copies of the cancelled checks. Additionally, Ms. Williams testified that she had no photographs of any of the items she claimed to have lost. Before discarding the moveable property on her loss list, she failed to photograph any of the items. Under further examination by the court, Ms. Williams admitted she did not contact any of the stores where she had allegedly purchased her property to request duplicate receipts.

Ms. Williams waited more than three years after the storm to allege a loss of personal property. She even stated, without provocation, in a complaint to the Louisiana Department of Insurance that FEMA had paid for her personal property. Furthermore, Bryan Newell testified that Ms. Williams specifically told him that she had not sustained any personal property losses at the time of his inspection on December 4, 2006.

|9Ms. Williams called a third party witness, a family friend, Ms. Marilyn Monroe. In response to the court’s questioning, Ms. Monroe admitted she was never present when Ms. Williams allegedly purchased the items she has claimed as having lost during the storm. Therefore, Ms. Monroe had no independent, firsthand knowledge about Ms. Williams’ purchases.

Although Ms. Williams claimed the structure wherein the personal property was allegedly located suffered extensive damage, the testimony and evidence did not support this contention. Bryan Newell testified that there was no displacement of structural framing when he inspected the structure. Mr. Newell further testified that Ms. Williams’ roof was completely replaced — not because of severe damage— but because her previous roof was an asbestos roof and the tiles could not, be matched. According to Mr. Newell, this was common because it is very difficult to match asphalt shingles.

Based upon the testimony and evidence adduced during trial, we find the trial court’s determination that Ms. Williams presented no evidence regarding the quantity, quality or basis for valuation of the items for which she claimed as losses was reasonable.

Assignment of Error 4

Ms. Williams submits the trial court erred by not imposing statutory penalties on Louisiana Citizens for alleged material misrepresentation of the insurance, policy coverage during trial.

Again, we find no merit in Appellant’s assertion, and we fail to view the explanation of the policy coverage by counsel for Appellant and Louisiana Citizens, with the participation of the trial court, as a sanc-tionable action.

|lftAt the conclusion of the coverage discussion, counsel for Ms. Williams did not disagree with or object to the collaborative explanation of the coverage. Furthermore, upon the closing of Louisiana Citizen’s case-in-chief, the court announced that the case would be taken under advisement and asked if the insurance policy had been entered into evidence. The court informed all counsel that the policy would be reviewed. We find nothing in the record that would lead to a finding that the factfinder believed Louisiana Citizens materially misrepresented the coverage of the subject insurance policy.

Assignment of Error 5

Appellant Williams asserts the trial court erred by overruling her timely objections to the testimony of two witnesses called by the insurance company not listed on the filed witness list.

The trial court reviewed the record at the time of Ms. Williams’ objection, and stated that according to the April 8, 2009 pre-trial order, there were no deadlines for disclosing fact witness — only deadlines for providing expert witnesses. One of the witnesses to which Ms. Williams objected was a fact witness and the other was a representative of Louisiana Citizens; therefore, the trial court had a reasonable basis for allowing their testimony.

Assignment of Error 6

Ms. Williams’ final assignment of error asserts the trial court erred by not allowing her to present rebuttal testimony.

The relevance of rebuttal evidence should be tested by whether it is justified by the evidence it purports to rebut. Generally, rebuttal is relevant only by virtue lnof the evidence introduced by the other side, or by issues placed in conflict by the adverse party’s evidence during that party’s case in chief. The defendant must have “opened the door” of relevancy, such as by presenting evidence raising discrepancies, and rebuttal may then directly answer the contention raised by the defense. 75 Am.Jur.2d Trial § 288.

In the case at bar, Appellant Williams attempted to rebut whether or not she had received photographs introduced during the testimony of Bryan New-ell, the Louisiana Citizens adjustor, and whether she told Mr. Newell that she did not have personal property damage. The court concluded that Ms. Williams had already testified during direct examination as to whether she had told Mr. Newell about her personal property damage. Counsel for Ms. Williams agreed and did not object to the court’s determination. Thus, Ms. Williams waived her right to object and cannot seek appellate review of this issue.

DECREE

After a review of the record, we find the trial court’s findings were reasonable and were not clearly wrong or manifestly erroneous.

AFFIRMED AND RENDERED

      . The record does not disclose the issues discussed during the mediation.

      . Former La.R.S. 22:658 has been renumbered and is now La.R.S. 22:1973. The former statute, as quoted, is applicable to the case at hand.

      . Former La.R.S. 22:1220 has been renumbered and is now La.R.S. 22:1973. The former statute, as quoted, is applicable to the case at hand.