author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Kerry J. CURINGTON.
    No. 09-KA-867.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2010.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Jerome Smith, Brandon Kinnett, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    James A. Williams, Roger W. Jordan, Jr., Attorneys at Law, Gretna, Louisiana, for Defendant/Appellant.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

I STATEMENT OF THE CASE

On February 19, 2004, defendant, Kerry J. Curington, and his co-defendant, Clarence Johnson, were indicted and charged with first degree murder of Donell Stipe in violation of LSA-R.S. 14:30. On June 25, 2007, the State amended the charge, as to both defendants, to second degree murder in violation of LSA-R.S. 14:80.1.

On April 28, 2009, defendant proceeded to trial before a twelve-person jury. The jury found defendant guilty of second degree murder on April 29, 2009. He was sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence on June 15, 2009. Defendant appeals.

FACTS

At trial, Samuel Carter testified that the victim, Donnell Stipe, was known as “Red,” and he had known him for over fifteen years. Mr. Carter stated that he was Lwith Mr. Stipe on the evening of December 7, 2003, and they were shooting dice at an apartment on Max Drive in Harvey, Louisiana. A man known as “Lechie” and his girlfriend, Vanessa Nellon, lived at the apartment. According to Mr. Carter, when he arrived at the apartment, Mr. Stipe, Lechie, Kenneth Morton, Wayne White, and a man named “Mervin” were there. Mr. Carter brought $900 with him to the game, but at some point, he left the apartment because he was losing.

According to Mr. Carter, Mr. Stipe called him and asked him to come back to the dice game, because “Chopper,” later identified as defendant, Kerry Curington, had arrived and was betting big. Mr. Carter had previously met defendant when they had gambled at a club. Mr. Carter went back to the apartment where he saw Mr. Stipe, defendant, Lechie, Mervin, Kenneth Morton, Wayne White,.and Leonard Veal in the kitchen where the dice game was taking place. Some people were shooting dice and others were watching. Mr. Carter testified that he joined the dice game and it lasted an hour or two. Only Mr. Stipe, defendant, and Mr. Carter were involved in this game, and Mr. Carter stated that he and Mr. Stipe were winning, and defendant was losing. Eventually, Mr. Carter dropped out of the game, but defendant and Mr. Stipe continued to play. The game ended when defendant lost all of his money.

After the game ended, defendant left the apartment. Then, Mr. Stipe left, followed by Mr. Carter. As he walked to his car, Mr. Carter saw someone in the parking lot who was pretending to urinate on the side of the building. When Mr. Carter got to his car, defendant approached him with a handgun and told him to “give it up,” so Mr. Carter gave him the $1,800 he had in his jacket. Mr. Carter stated that defendant then walked him over to where Mr. Stipe was located in the parking lot. The man who was pretending to urinate on the side of the building ran toward Mr. Stipe with a machine gun. When Mr. Carter put his hand up, the man |4with the machine gun started shooting. Mr. Carter fell to the ground and he heard Mr. Stipe saying, “No, no, no.” Defendant and the other perpetrator fled the scene, and Mr. Carter called the police.

Kenneth Morton testified that he was present on the night that Donell Stipe, whom he knew as “Red,” was killed. Mr. Morton stated that he went with Mr. Stipe and Wayne White to Leehie’s apartment to play dice. Mr. Carter and Mervin came to the apartment as well. After an hour or two of playing dice, Mr. Carter left. Thereafter, defendant, who was known as “Chopper,” arrived. Mr. Carter came back after Mr. Stipe called him. Mr. Morton testified that he dropped out of the game when the stakes got too high, and only Mr. Carter, Mr. Stipe, and defendant remained in the game. Mr. Carter and Mr. Stipe were winning, and defendant was losing.

According to Mr. Morton, after the game broke up, defendant left first. Thereafter, Mervin, Mr. Carter, and Mr. Stipe left. A couple of minutes later, Mr. Morton, Wayne White, and Leonard Veal walked out. After he took a few steps, Mr. Morton saw Mr. Carter and Mr. Stipe being robbed. Mr. Carter was pinned up against his car by defendant who was pointing a gun at him. Mr. Stipe was parked approximately five to ten feet away from Mr. Carter, and he was pinned against his car by another individual.

When Lieutenant Gray Thurman and Detective Donald Clogher of the Jefferson Parish Sheriffs Office arrived on the scene, Mr. Stipe was dead, lying on his back next to his vehicle. He had sustained multiple gunshot wounds. Dr. Karen Ross, a forensic pathologist and Assistant Coroner for the Jefferson Parish Coroner’s Office, testified at trial that the nine gunshot wounds Mr. Stipe suffered were inflicted by at least two different weapons. Dr. Ross also testified that some lBof the wounds inflicted by each weapon were, on their own, fatal or potentially fatal.

Trial testimony offered by Louise Wal-zer, an expert in firearms evidence and tool mark analysis and a retired member of the Jefferson Parish Crime Laboratory, corroborated Dr. Ross’ opinion. Ms. Wal-zer conducted an examination of the firearms-related evidence, including recovered spent projectiles, and identified two different caliber projectiles. One type of projectile was consistent with a 7.62 mm, or .30 caliber weapon, and the other was consistent with a .40 caliber weapon. Ms. Walzer opined that the 7.62 projectile could have been fired from an AK-47 or an SKS. Ms. Walzer compared a 7.62 projectile found at the scene to material recovered from Mr. Stipe’s t-shirt during the autopsy and determined that they were fired from the same weapon. Ms. Walzer also compared .40 caliber projectiles found at the scene with a .40 caliber projectile recovered from Mr. Stipe’s body and determined that they were fired by the same weapon. Ms. Walzer testified that thirteen 7.62 cartridge casings found on the scene were all fired from the same weapon. She also testified that six .40 caliber casings found on the scene were all fired from the same weapon.

During his investigation, Detective Clo-gher interviewed several witnesses, including Samuel Carter, Kenneth Morton and Vanessa Nellon. Mr. Carter, who had called the police shortly after the incident, was later interviewed by detectives at the hospital and then brought to the investigations bureau. Mr. Carter had stayed on the ground after the shooting, during which his hand and head were grazed by bullets, and left the scene after the perpetrators fled. Mr. Carter also indicated that although he did not know the two perpetrators by name, he was acquainted with both of them, and he provided Detective Clogher with the nickname “Chopper.”

| fiAfter discovering defendant’s full name, Detective Clogher was able to compile a photographic lineup and present it to Mr. Carter and Mr. Morton. Mr. Carter and Mr. Morton positively identified defendant as the perpetrator who committed the robbery of Mr. Carter and Mr. Stipe, and Mr. Carter positively identified defendant as the perpetrator who shot Mr. Stipe with a handgun.

LAW AND DISCUSSION

In his first assignment of error, defendant argues that the trial court erred by allowing “other crimes” evidence to be admitted at trial. Specifically, defendant contends that the State improperly introduced evidence of an unrelated shooting in Orleans Parish and an alleged bribery of a witness, Samuel Carter, by defendant. Defendant argues that the State did not comply with the requirements of State v. Prieur, 271 So.2d 126 (La.1973), because it failed to provide written notice of its intent to use this other crimes evidence, and that the trial court failed to charge the jury as to the limited purpose for which the evidence was to be received. Finally, defendant contends that, because the admission of the other crimes evidence severely prejudiced him and contributed to the jury’s verdict, he is entitled to a new trial.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. LSA-C.E. art. 404(B)(1); State v. Jackson, 05-923, p. 10 (La.App. 5 Cir. 3/28/06), 926 So.2d 72, 78, unit denied, 06-1589 (La.1/8/07), 948 So.2d 121; Prieur, 277 So.2d at 128. However, when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to this rule. Jackson, 05-923 at 10, 926 So.2d at 78.

|7Pursuant to LSA-C.E. art. 404(B)(1), evidence of other crimes may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. However, in order for other crimes evidence to be admitted under LSA-C.E. art. 404(B)(1), certain requirements must be met. See State v. Page, 08-531, p. 13 (La.App. 5 Cir. 11/10/09), 28 So.3d 442, 451, unit denied, 09-2684 (La.6/4/10), 38 So.3d 299; and State v. Schaller, 08-522, pp. 23-24 (La.App. 5 Cir. 5/26/09), 15 So.3d 1046, 1060, writ denied, 09-1406 (La.2/26/10), 28 So.3d 268. First, pursuant to Prieur, the State must provide written notice to the defendant of the acts it intends to prove, along with the exception to the exclusionary rule upon which it relies. Page, 08-531 at 13, 28 So.3d at 451. Additionally, one of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of the crime charged. Id. Finally, Prieur requires that the State show that the defendant committed the other crimes. Jackson, 05-923 at 11, 926 So.2d at 78. This Court has recognized that not every violation of Prieur notice requires reversal, and a defendant must show prejudice before he can complain of such a violation. State v. Ridgley, 08-675, p. 14 (La.App. 5 Cir. 1/13/09), 7 So.3d 689, 698, unit denied, 09-0374 (La. 11/6/09), 21 So.3d 301.

The probative value of the extraneous evidence must outweigh its prejudicial effect. LSA-C.E. art. 403; Page, 08-531at 13, 28 So.3d at 451. The burden is on the defendant to show that he was prejudiced by the admission of the other crimes evidence. Jackson, 05-923 at 11, 926 So.2d at 78. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant to LSA-C.E. art 404(B)(1) will not be disturbed. Schal-ler, 08-522 at 24,15 So.3d at 1061.

| aEvidence of Unrelated Orleans Parish Shooting

Defendant filed a Motion in Limine to Exclude Ballistics Evidence on March 2, 2005. The record indicates that defendant proceeded to trial without a ruling on the Motion in Limine. The State ultimately questioned its firearms expert, Louise Walzer, about ballistics evidence recovered in this case as well as casings recovered from an incident in Orleans Parish which were given to her for comparison to the casings recovered in the instant homicide. Specifically, Ms. Walzer testified that the nine casings from the Orleans Parish incident matched the casings in the instant case. Defendant did not offer any objection during Ms. Walzer’s testimony regarding the Orleans Parish incident. After the State tendered the witness, defense counsel cross-examined Ms. Walzer regarding the Orleans Parish casings.

If a defendant does not object to the trial court’s failure to rule on a motion prior to trial, the motion is considered waived. State v. Cummings, 07-686, pp. 8-9 (La.App. 5 Cir. 1/22/08), 977 So.2d 135, 141, writ denied, 08-0471 (La.9/26/08), 992 So.2d 984; State v. Ruffin, 02-798, p. 16 (La.App. 5 Cir. 12/30/02), 836 So.2d 625, 636, unit denied, 03-3473 (La.12/10/04), 888 So2d 831. Additionally, to preserve the right to seek appellate review of an alleged trial court error, the party alleging the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. LSA-C.Cr.P. art. 841; Cummings, 08-686 at 9, 977 So.2d at 141. The purpose behind this rule is to put the trial judge on notice of an alleged irregularity, thereby allowing the trial judge the opportunity to make the proper ruling and correct any claimed prejudice to the party alleging the error. Id.

In the present case, because defendant proceeded to trial without a ruling on the Motion in Limine and because defendant failed to state an objection | contemporaneously with the occurrence of the alleged error, including the grounds for any such objection, this issue has been waived and will not be considered.

Evidence of Alleged Attempted Bribery by Defendant of Samuel Carter

At trial, the prosecutor asked Samuel Carter on direct examination if he had spoken with defendant after identifying defendant in the photographic lineup. Mr. Carter responded affirmatively, stating that he had received a call from defendant. When the prosecutor asked what was said by defendant during that conversation, defense counsel objected on hearsay grounds, and a bench conference was held outside of the presence of the jury. After hearing argument from both sides, the trial judge overruled defense counsel’s objection, noting that the statement, which was being offered to explain why Mr. Carter had changed his story with regard to his ability to identify defendant, constituted an admission against interest. Defense counsel further objected to the introduction of the evidence as other crimes evidence. Noting that defense counsel’s subsequent objection did not change his ruling, the trial judge again overruled defense counsel’s objection.

Thereafter, in response to the prosecutor’s question, Mr. Carter testified that defendant told him “[y]eah, my people supposed to be bringing you something.” Mr. Carter testified that he understood this to mean that he was being offered “money,” and that he declined defendant’s offer. Sometime after the conversation occurred, Mr. Carter was approached at his grandmother’s house by a private investigator working for defendant. Mr. Carter gave a recorded statement to the private investigator, in which he stated that he was unable to identify the perpetrator who committed the robbery and the shooting. This statement directly contradicted the prior statements given by Mr. Carter to the police.

At trial, Mr. Carter testified that he was scared to talk to the investigator, that he had been hiding from defendant at his grandmother’s house, and that there had 11ftbeen attempts on his life. When cross-examined about telling a different story to the private investigator, Mr. Carter stated that he did not want the investigator to know that he saw defendant because he knew that the investigator was going to report back to defendant. Mr. Carter testified that telling this story made him feel safe.

The Louisiana Supreme Court has held that evidence of attempts by a defendant to intimidate witnesses for the State has substantial probative value, and that actions on the part of the defendant which are designed to prevent witnesses from testifying will give rise to an inference that the defendant acted from an awareness or consciousness of his own guilt. State v. Johnson, 426 So.2d 95, 102 (La.1983); State v. Burnette, 353 So.2d 989, 992 (La. 1977).

In State v. Graves, 301 So.2d 864, 866 (La.1974), the Louisiana Supreme Court stated:

Although an attempt to bribe or influence a witness is a criminal offense under Louisiana law, La.R.S. 14:118, an attempt by an accused in a criminal prosecution to induce a witness to testify falsely may be introduced in evidence against him. This evidence is admissible since it leads to an inference that, if admitted, it would operate unfavorably to the accused.... Before such attempts are admissible, however, there must be some evidence to connect the accused therewith or to show that the attempt by a third person was made with the authorization of the accused.

In the present case, Mr. Carter’s testimony regarding the attempted bribery clearly has substantial probative value to explain why Mr. Carter gave a different statement to the private investigator about his ability to identify defendant as the perpetrator. In overruling defense counsel’s objection, the trial court evidently concluded that the probative value of the evidence outweighed its prejudicial effect, and this conclusion is supported by the record. Based on the' record before us along with the applicable law, we find that the trial court did not err in allowing testimony regarding the attempted bribery of Samuel Carter by defendant.

| uJury Instructions

Defendant contends that the trial court failed to charge the jury as to the limited purpose for which the “other crimes” evidence was to be received. When “other crimes” evidence is admitted in a jury trial, the court, upon the defendant’s request, must charge the jury as to the limited purpose for which the evidence is to be considered. State v. Nguyen, 04-321, p. 15 (La.App. 5 Cir. 9/28/04), 888 So.2d 900, 909-10, writ denied, 05-0220 (La.4/29/05), 901 So.2d 1064. Moreover, the final jury charge must contain an instruction regarding the limited purpose for which the “other crimes” evidence was received. Id. at 15, 888 So.2d at 910. At that time, the court must instruct the jurors that the defendant cannot be convicted of any charge other than the one named in the indictment, or one i-esponsive thereto. Id.

LSA-C.Cr.P. art. 801(C) provides:

A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.

The requirements of Prieur notwithstanding, this Court has held that a defendant is required to make a timely objection under article 801 in order to preserve a jury charge issue for review. State v. Dauzart, 02-1187, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 159,167.

In the instant case, at the time the evidence of the Orleans Parish shooting was introduced, defendant failed to request a limiting charge to the jury. Thus, the trial judge was not required to issue a limiting instruction at that time. During the discussion regarding the attempted bribery of Mr. Carter by defendant, defense counsel appears to have made an initial attempt at requesting a jury instruction, [^stating “[wjill you give a jury instruction as to that particular Court’s statement? That’s like you’re telling us that it’s the same thing to go before a jury, that it may be they would have to take it and they determine the credibility of it. Impose a jury instruction as to.... ” The trial judge stated that he would “deal with that later,” but it does not appear that defense counsel addressed the matter again or made a request for a specific instruction.

A review of the final jury instructions reveals that there was no mention of “other crimes” evidence. However, defendant neither requested a special jury charge nor timely objected to the final jury charges. Thus, defendant failed to properly preserve this issue for appellate review. Based on the foregoing, this assignment of error is without merit.

In his second assignment of error, defendant argues that defense counsel’s assistance was defective because he failed to object at trial to the “other crimes” evidence of the ballistics report and the State’s reference to the unrelated shooting incident in Orleans Parish. Defendant also contends that defense counsel’s assistance was ineffective because he failed to request a charge to the jury as to the limited purpose for which the “other crimes” evidence was to be received. Defendant alleges that the erroneous admission of other crimes evidence was not harmless and contributed to the jury verdict. As such, defendant contends that he was denied his Sixth Amendment right to effective assistance of counsel.

Generally, a claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than on direct appeal, so as to afford the parties an adequate record for review. State v. Robertson, 08-297, p. 12 (La.App. 5 Cir. 10/28/08), 995 So.2d 650, 659, writ denied, 08-2962 (La.10/9/09), 18 So.3d 1279. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly ] ^raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Grimes, 09-2, p. 10 (La.App. 5 Cir. 5/26/09), 16 So.3d 418, 426, writ denied, 09-1517 (La.3/12/10), 28 So.3d 1023.

A criminal defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. Grimes, 09-2 at 10,16 So.3d at 425. To prove ineffective assistance of counsel, a defendant must show both that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. Id.; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). It is unnecessary to address the issues of both counsel’s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 860 (La.App. 1 Cir.1992), writ denied, 614 So.2d 1263 (La. 1993).

To establish the deficiency prong of the test, the defendant must show that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the Constitution. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To establish prejudice, the defendant must show that the errors were so serious that the defendant was deprived of a fair trial, a trial whose result is reliable. Id. The defendant must prove actual prejudice before relief will be granted. Serigny, 610 So.2d at 860. It is not sufficient for the defendant to show that the error had some conceivable effect on the outcome of the proceeding. Id. Rather, he must show that but for counsel’s deficient performance, there is a reasonable probability the outcome of the trial would have been different. State v. Robinson, 01-1305, p. 18 (La.App. 4 Cir. 4/17/02), 820 So.2d 571, 582, writ denied, 02-1640 (La.5/30/03), 845 So.2d 1068.

_LyThe Sixth Amendment does not guarantee errorless counsel or counsel judged ineffective by hindsight. LaCaze, 99-0584, p. 20 (La.1/25/02), 824 So.2d 1063, 1078, cert, denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). Given that opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions, and an attorney’s level of representation may not be determined by whether a particular strategy is successful. State v. Reichard, 05-1262, p. 5 (La.App. 4 Cir. 6/21/06), 935 So.2d 727, 731. Thus, “trial strategy” type errors do not constitute ineffective assistance of counsel. Reichard, 05-1262 at 5, 935 So.2d at 731.

In the instant case, a review of the record reveals that it was defense counsel’s trial strategy to discredit Samuel Carter’s identification of defendant, and he referred to the evidence from the Orleans Parish investigation in order to support his theory that someone other than defendant committed the murder. In his opening statement, defense counsel referred to the Orleans Parish investigation and the recovery of shell casings from the home of Jamal Burton. Defense counsel also tied the Orleans Parish shooting to a man named Akiem Duez. Further, defense counsel began his cross examination of Ms. Walzer by stating “I’ve just got a couple of questions for you, and really honing in on that New Orleans connection with this case,” then questioned Ms. Walzer about whether it was possible to obtain fingerprint evidence from spent casings to determine “who really put these bullets in this gun.”

During his cross-examination of Detective Clogher, defense counsel stressed that there was no fingerprint or DNA evidence to connect defendant to the crime. After inquiring whether there was anything of “evidentiary value that led you to Mr. Cur-ington,” defense counsel questioned Detective Clogher about Mr. Carter and Mr. Morton’s identifications, asking “The only evidence that you have that | ^[Defendant] committed this crime was allegedly a statement by Mr. Carter and Mr. Morton, correct?” During his cross-examination of Samuel Carter, defense counsel aggressively challenged Mr. Carter’s identification of defendant, stressing that Mr. Carter had given a false name to the police during his 911 call and that he told defendant’s private investigator that he could not identify the perpetrator.

Additionally, defense counsel commenced his closing argument by stating that “the important thing is who committed the crime.” He heavily stressed the lack of physical evidence connecting defendant to the crime, and appealed to the jury to “remember the link to New Orleans. They found casings at someone else’s house. The detective testified to that. Remember the link.” Finally, defense counsel again attempted to discredit Samuel Carter’s identification by reiterating that Mr. Carter had given a different story to the private investigator.

The introduction of evidence related to the Orleans Parish shooting was consistent with the trial strategy utilized by defense counsel, and the record does not show that counsel’s performance was deficient. As stated above, “trial strategy” type errors do not constitute ineffective assistance of counsel.

Because defendant has not shown that his counsel’s performance was deficient for failing to object to the introduction of evidence regarding the Orleans Parish shooting and failing to request a limiting jury instruction, he has not proven his ineffective assistance of counsel claim. This assignment of error is without merit.

In his third assignment of error, defendant contends that the trial court erred by allowing into evidence alleged statements made by defendant to Samuel Carter during a telephone conversation, because defendant was not given pre-trial notice of the telephone call in which defendant allegedly attempted to bribe Mr. Carter. Defendant alleges that its admission into evidence despite objection prevented him hfifrom properly preparing a defense, and that the prejudice suffered by defendant as a result of its admission constitutes reversible error.

LSA-C.Cr.P. art. 768 provides:

Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.

The purpose of the notice requirement of Article 768 is to prevent surprise and to allow the defendant adequate time for the preparation of a defense in light of the inculpatory statement. State v. Billiot, 421 So.2d 864, 867 (La.1982); State v. Cathey, 493 So.2d 842, 861 (La. App. 5 Cir.1986), writ denied, 500 So.2d 419 (La.1/23/87), cert, denied, 481 U.S. 1049, 107 S.Ct. 2181, 95 L.Ed.2d 838 (1987). An “inculpatory statement” within the meaning of this article refers to an out of court admission of incriminating facts made by the defendant after the crime has been committed. State v. Phillips, 94-673, p. 11 (La.App. 5 Cir. 3/1/95), 659 So.2d 785, 790. Reversal is not mandated when the defendant does not show that he was prejudiced by the State’s failure to provide written notice. Id.; Cathey, 493 So.2d at 851. If a defendant merely asserts that he was “surprised,” but offers nothing to show how he would have prepared for trial differently, a reversal is not warranted. Cathey, 493 So.2d at 851. The failure to provide a defendant with the notice required by Article 768 may be harmless error where the remaining evidence of guilt is overwhelming. State v. Breaux, 473 So.2d 923, 924 (La.App. 3 Cir.1985).

As defendant claims, there is no indication in the record that the State filed a pre-trial notice under LSA-C.Cr.P. art. 768. Defendant offers some indication of how advanced notice would have affected his trial preparation, asserting that, had he been aware of the statement, he could have conducted an investigation and subpoenaed phone records to reveal whether the phone call was made.

|17Although the State did not file the required pre-trial notice of its intent to use defendant’s statements at trial, based on the record before us, we find that the admission of the statements was harmless. The State produced overwhelming evidence to establish defendant’s guilt. Both Mr. Carter and Mr. Morton positively identified defendant as the perpetrator who committed the robbery of Mr. Carter and Mr. Stipe, and Mr. Carter positively identified defendant as the perpetrator who, armed with a handgun, shot Mr. Stipe. Mr. Carter also testified that the other perpetrator pointed a machine gun at him and started shooting.

Testimony offered by Dr. Ross confirmed that Mr. Stipe died as a result of multiple gunshot wounds, and that the wounds Mr. Stipe suffered were inflicted by at least two different weapons, one of which was consistent with a 7.62 caliber weapon and the other consistent with a high caliber (i.e. .40 or .45 caliber) weapon. Dr. Ross also testified that some of the wounds inflicted by each weapon were, on their own, fatal or potentially fatal.

Any error in failing to provide the notice required by LSA-C.Cr.P. art. 768 was harmless. Accordingly, this assignment of error is without merit.

In his fourth and final assignment of error, defendant contends that the trial court erred by denying his Motion to Quash based on the State’s failure to commence trial within the applicable time limitations of LSA-C.Cr.P. art. 578. Defendant argues that this delay severely prejudiced his ability to prepare a defense for trial, because trial preparation and investigation were hampered by the delay and many witnesses were unavailable for trial.

The State responds that the trial court denied defendant’s Motion to Quash because it concluded that there had not been a two-year period without interruption or suspension. The State further contends that defendant requested 24 continuances and, as such, cannot now claim that he was tried in an untimely 11Rmanner. The State also alleges that each of the motions filed by defendant in the present case extended the State’s deadline to commence trial by another year, pursuant to LSA-C.Cr.P. art. 580. Finally, the State contends that defendant has failed to show how he was prejudiced by the alleged delay.

As a general matter, the State has three years from the institution of prosecution to commence a trial in a capital felony case, and two years from the institution of prosecution to commence a trial in a non-capital felony case. LSA-C.Cr.P. art. 578(A)(1) and (2). The Louisiana Supreme Court has explained that the “statutory periods of limitation ‘enforce the accused’s right to a speedy trial and ... prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time.’ ” State v. Romar, 07-2140, p. 3 (La.7/1/08), 985 So.2d 722, 725. The date of institution of prosecution is the date when the indictment is returned or the bill of information is filed. State v. Smith, 07-959, p. 5 (La.App. 5 Cir. 3/11/08), 982 So.2d 831, 834.

In the present case, defendant filed a Motion to Quash, which was denied by the trial court on April 22, 2009. Defendant sought relief from the trial court’s denial of his motion by filing a writ application with this Court. On April 27, 2009, this Court denied defendant’s writ application, stating that “upon review of the writ application and attached documents, we find no error in the trial court’s denial of defendant’s motion to quash the indictment. Accordingly, this writ application and the request for a stay order are denied.”

An appellate court’s denial of supervisory writs does not bar reconsideration of an issue on appeal, nor does it prevent the appellate panel from reaching a different conclusion on the issue. In re K.R.W., Jr., 03-1371 (La.App. 5 Cir. 5/26/04), 875 So.2d 903, 905. Reconsideration of a prior ruling is warranted when, in light of a subsequent trial record, it is apparent that the determination was 113patently erroneous and produced unjust results. Id. Judicial efficiency demands that this Court accord great deference to its prior rulings. State v. Davis, 03-488 (La.App. 5 Cir. 11/12/03), 861 So.2d 638, 642, n. 2, vnit denied, 03-3401 (La.4/2/04), 869 So.2d 874.

Defendant has not shown that this Court’s prior denial of his writ application regarding the Motion to Quash was patently erroneous and produced unjust results. Moreover, defendant has produced no new evidence to support this Court’s reconsideration of the issue. Nevertheless, we have reviewed and considered the merits of defendant’s claim again, and we have reached the same conclusion that the trial court did not err in denying defendant’s Motion to Quash.

Once a defendant shows that the state has failed to commence trial within the time periods specified by the general rule governing time limitations for commencement of trial, the state bears a heavy burden to demonstrate that either an interruption or a suspension of the time limit tolled prescription. State v. Morris, 99-3235, p. 1 (La.2/18/00), 755 So.2d 205.

Defendant was indicted for first degree murder on February 19, 2004. Thus, barring interruption under LSA-C.Cr.P. art. 579 or suspension under LSA-C.Cr.P. art. 580 of the time delay, the State originally had until February 19, 2007 to commence trial. The amendment of the bill of information to second degree murder on June 25, 2007, had no effect on the original three-year time limitation. See State v. Wilson, 363 So.2d 481, 483 (La.10/9/78); and State v. Peters, 546 So.2d 557, 559 (La.App. 1 Cir.1989). Trial did not begin until April 28, 2009. The issue is whether the State met its burden of proving an interruption or suspension of the time limit.

LSA-C.Cr.P. art. 579 provides for the interruption of the time limitation for commencing trial, as follows:

12pA. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

LSA-C.Cr.P. art. 580 provides for the suspension of the time limitation for commencing trial, as follows:

When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.

A motion to suppress evidence and a motion for preliminary hearing are both preliminary pleas under article 580 which suspend the running of the prescriptive period. State v. Clay, 07-0698, p. 5 (La.App. 4 Cir. 10/24/07), 970 So.2d 657, 660, n. 5. Likewise, a motion for continuance filed by defendant and joint motions to continue are preliminary pleas under article 580, which suspend the running of the prescriptive period. Clay, 07-0698 at 5, 970 So.2d at 660, n. 5; State v. Fish, 05-1929 (La.4/17/06), 926 So.2d 493.

Over the course of the five-year pen-dency of this trial, the parties requested approximately 30 continuances. A review of the record reveals that defendant requested approximately 14 continuances and the parties jointly requested approximately 10 continuances. In addition, defendant filed no less than 25 motions, many of which constituted preliminary pleas that suspended the running [⅞1 of prescription and had the effect of delaying the trial. The impact of Hurricane Katrina hitting the New Orleans area in 2005 also delayed the proceedings in this matter. Despite the significant amount of time that passed between the institution of prosecution and trial, there was consistent activity in the case and the significant delays were attributable in part to defendant.

Based on all of the information in the record, the State met its burden of showing that interruptions and suspension of the time limitations for bringing defendant to trial prevented prescription from running in this case. Accordingly, this assignment of error is without merit.

ERRORS PATENT

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). No errors requiring corrective action were noted.

DECREE

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

AFFIRMED.

      . Defendant filed a Motion to Sever Defendants, which was granted on April 22, 2009.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    Jeffrey Owen MEAUX v. WENDY’S INTERNATIONAL, INC., F.J.B. Construction, Inc., ACE Insurance Company, and XYZ Insurance Company.
    No. 10-CA-111.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2010.

      Neil D. Sweeney, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant.
    Scott G. Jones, Attorney at Law, Mandeville, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKA HOMBERG WICKER, Judge.

|?This is a personal injury matter. Plaintiffyappellant Jeffrey Meaux contends that the trial court erred in granting summary judgment in favor of defendant/ap-pellee Wendy’s International, Inc. (‘Wendy’s”). Mr. Meaux was a worker hired by a subcontractor to clean up debris on a project in which the subcontractor was removing fascia from a Wendy’s restaurant. Mr. Meaux was injured when a part of the building’s front wall collapsed on him while other employees were removing the fascia from the building. Mr. Meaux sued Wendy’s, alleging both negligence and strict liability. Mr. Meaux specifies five errors to the proceedings below, in all of which he contends for various reasons that the trial court erred in granting Wendy’s motion for summary judgment. For the reasons that follow, we reverse the trial court’s judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

The story of this case begins on August 29, 2005, when Hurricane Katrina made landfall over southeastern Louisiana. Katrina caused major damage to the Rroof of a fast food restaurant located at 7021 Westbank Expressway in Marrero, Louisiana. The parties agree that the restaurant was constructed in the early 1980’s.

Wendy’s, the owner of the restaurant, hired F.J.B. Construction, Inc. (“F.J.B.”) to perform a “fascia retrofit” to repair the damage to the fascia. The fascia of a building is the horizontal or slanted portion of a building’s roof that hangs over or across the top of the building’s wall. In this case, the fascia in essence acted as a visor sitting around the building’s head. The building’s head was topped off by its roof. The fascia retrofit, which was largely aesthetic in nature, required F.J.B. to tear the wooden fascia away from the remainder of. the roof and to replace the wood. F.J.B. and Wendy’s entered into a work agreement on November 29, 2005.

Mark Ross, F.J.B.’s director of operations and executive vice president, indicated during a deposition that after he entered into the work agreement with Wendy’s, he entered into a subcontract with JAFC/Jimmy Alsobrooks (“JAFC”) to repair the roof and to pick up debris around the Wendy’s restaurant. This work required that a supervisor, a carpenter, and two laborers disconnect and cut the damaged wood from the roof and dispose of the wood. No written evidence of this contract appears in the appellate record. Mr. Ross further testified that prior to beginning the repairs, he inspected the exterior of the- Wendy’s building with John Danz, F.J.B.’s job superintendent at the Wendy’s site. Messrs. Danz and Ross determined that JAFC would open the fascia and determine how best to dispose of and repair the fascia. According to Mr. Ross, no Wendy’s employees were involved in the pre-job planning process, nor did any Wendy’s employees exercise any control over the fascia work.

14JAFC employees began repairing the fascia of the Wendy’s restaurant in the afternoon of November 29, 2005. Shortly after removing a portion of the fascia covering the north wall of the Wendy’s restaurant, the top portion of the roof and the overhanging fascia collapsed and fell on Mr. Meaux. Mr. Meaux was permanently paralyzed as a result.

Mr. Meaux filed a petition for damages on November 28, 2006 alleging that (1) Wendy’s contracted to build the north wall with an improper design and allowed “improper construction procedures” to occur during the construction of the north wall, (2) Wendy’s had ownership and/or “garde” of a dangerous and defective building and failed to warn JAFC, and that (3) Wendy’s committed “other acts of negligence [that] will be more fully set forth at the trial.” Wendy’s, F.J.B., ACE American Insurance Company and XYZ Insurance Company were named as defendants. ACE and XYZ were alleged to be the general liability insurance providers for Wendy’s and F.J.B. respectively. The Louisiana Workers’ Compensation Corporation subsequently intervened seeking to recoup compensation benefits and medical expenses paid to Mr. Meaux as a result of his injury. On March 8, 2007, F.J.B. filed an exception of no cause of action. Eventually the trial court granted this exception and dismissed F.J.B. from this matter with prejudice. That decision is final.

Wendy’s thereafter filed the motion for summary judgment at issue here contending that none of its employees were present or active in the events leading up to Mr. Meaux’s accident; therefore, it could not be liable for Mr. Meaux’s injuries. Wendy’s also contended that it did not know, nor should it have known, of any defects in the wall. In support of its motion, Wendy’s relied upon Mark Ross’s deposition testimony in which he insisted that there were no Wendy’s employees on the property at the time of Mr. Meaux’s injury. Wendy’s also relied |5on Mark Ross’s deposition testimony indicating that Wendy’s was not responsible for the 2005 plans for removing the fascia.

In his memorandum opposing the motion, Mr. Meaux asserted that Wendy’s was liable for his injuries under a general negligence theory because Wendy’s failed to inspect the restaurant prior to accepting it for occupancy when it originally built the building in the 1980’s, had failed to maintain the restaurant properly, and in 2005 had contracted work that was inherently dangerous. Mr. Meaux also asserted that Wendy’s is strictly liable under La.C.C. art. 2317.1 and art. 2322 for his injuries because Wendy’s maintained custody over a building with an inherent vice or defect.

The trial court granted Wendy’s motion for summary judgment and dismissed Mr. Meaux’s claims with prejudice. In his reasons for judgment, the trial judge concluded that “there is no basis for a finding of fault against Wendy’s as it was completely uninvolved in the construction project and did not appear at the worksite. In addition to inspecting and planning the demolition project and debris removal, FJB and its subcontractors further provided all materials and labor.”

The trial court additionally determined that the alleged defects in the north wall of the restaurant were not a vice that Wendy’s knew or should have known about. The court stated in its reasons for judgment that Mr. Meaux’s allegation that Wendy’s was “liable for the ruin as the original construction plans were not followed and that the missing bolts would easily have been visible to Wendy’s before the installation of the drop ceiling ... further supports the argument that ... F.J.B. should have seen it on their pre-demolition inspection.”

Finally, the trial court concluded “a repairman hired to perform the work of his employer cannot recover from the owner for injuries received while working in 16the area under repair.” The trial court cited Desormeaux v. Audubon Ins. Co., 611 So.2d 818 (La.App. 3 Cir.1992), writ not considered, 613 So.2d 966 (La.1993), writ denied, 613 So.2d 1002 (La.1993) in support of this final conclusion.

This appeal followed.

STANDARD OF REVIEW

A motion for summary judgment is properly granted only on a showing that there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(B); Tassin v. City of Westwego, 95-307 (La.App. 5 Cir. 12/13/95) 665 So.2d 1272. The initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La.C.C.P. art. 966(C)(2); Callis v. Jefferson Parish Hosp. Service, Dist. # 1, 07-580, pp. 4-5 (La.App. 5 Cir. 12/27/07), 975 So.2d 641, 643.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored in the law. La.C.C.P. art. 966(A)(2); Robinson v. Jefferson Parish School Bd., 08-1224, p. 13 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975. Even though the summary judgment procedure is favored, it is not a substitute for trial on the merits. S.J. v. Lafayette Parish School Bd., 06-2862, p. 5 (La.6/29/07), 959 So.2d 884, 887 (per curiam).

|7A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (per curiam). A genuine issue is a “triable issue.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. If reasonable persons could disagree after considering the evidence, a genuine issue exists. However, if reasonable persons could reach only one conclusion on the state of the evidence, there is no need for a trial on that issue and summary judgment is appropriate. Id.; Alwell v. Meadowcrest Hosp., Inc., 07-376, p. 4 (La.App. 5 Cir. 10/30/07), 971 So.2d 411, 414. “In determining whether an issue is ‘genuine,’ courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Smith, 93-2512 at 27; 639 So.2d at 751.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Specifically, appellate courts must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Matthews v. Banner, 08-339 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163.

SPECIFICATIONS OF ERROR

Mr. Meaux has specified five errors to the proceedings below and has listed twelve “issues presented for review” in his brief. In all five errors and all twelve “issues presented” he contends that the trial court erred, for various reasons, in | granting summary judgment in favor of Wendy’s. We will consider the specifications of error together. Mr. Meaux’s claims fall under either a theory of negligence pursuant to La.C.C. art. 2315 or strict liability pursuant to La.C.C. art. 2317.1 and La.C.C. art. 2322.

Negligence — La.C.C. art. 2315

Mr. Meaux contends that summary judgment is inappropriate at this stage in the proceedings because he will be able to prove Wendy’s liability under the general negligence provisions of La.C.C. art. 2315 at trial. Mr. Meaux argues that Wendy’s had a duty pursuant to La.C.C. art. 2315 to “inspect the building during construction and prior to accepting it for occupancy” when the building was constructed in the 1980’s. Mr. Meaux further argues that the Wendy’s building had a “structural defect” that was “readily apparent during construction and at all times after the steel and walls were constructed and until the installation of the ceiling.” In a separate assignment of error, Mr. Meaux contends that Wendy’s is liable under La.C.C. art. 2315 because it contracted work that was intrinsically and inherently dangerous. We will consider the arguments relative to Mr. Meaux’s negligence claims together.

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. La. C.C. art. 2315. In Louisiana, liability for negligence is determined by the duty-risk analysis. To establish liability for damages in a negligence case, the plaintiff is required to prove the following: (1) that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the 18scope of liability or scope of protection element); (5) proof of actual damages. Detraz v. Lee, 2005-1263 (La.1/17/07), 950 So.2d 557, 565.

The question here is: does this plaintiff owe a duty to this defendant or, put differently, was this plaintiff within the scope of protection afforded by law to this defendant? Generally neither the building owner nor the general contractor are liable for the negligence of an independent contractor who performed work for them unless the building owner or the general contractor controlled the work or the work was intrinsically and inherently dangerous. Villaronga v. Gelpi Partnership Number 3, 536 So.2d 1307, 1310-11 (La.App. 5 Cir.1988). In deciding whether the person performing the work is an employee or an independent contractor the focus of inquiry is directed at gauging the degree of independence or subserviency of the person in accordance with the following factors: (1) the existence of a contract for the performance of a specific job, (2) payment of a fixed price for the work, (3) employment by the contractor of assistants who are under his control, and (4) the furnishing of tools and materials and the right to control the conduct of the work while in progress. Id. at 1311.

During his deposition, Mark Ross testified that he entered into an agreement with JAFC for a specific task: to tear away and replace a portion of the roof of the Wendy’s restaurant according to JAFC’s chosen methods. According to Mr. Ross, JAFC provided its own employees and was responsible for the conduct of the work. There is nothing in the record contradicting this evidence. Accordingly, there is no genuine issue of material fact that JAFC was an independent contractor with full operational control of the job.

In Villaronga, supra, this court discussed the nature of building owner control of work necessary to cause the injured contractor to come within the scope of protection. In that case, a fire substantially damaged a four-building apartment 110complex in Kenner. The plaintiffs were tenants of the apartment complex who brought suit to recover for losses sustained in the fire. Id. at 1309. The defendants were the owner of the building and a general contractor hired to repair the building. The plaintiffs contended that the fire was started by a subcontractor hired by the general contractor to solder the plumbing pipes and fittings. The plaintiffs further contended that the fire started when the plumbers charred wood, wood shavings and soundboard while soldering water pipes in one of the buildings under construction, and that the combustible materials subsequently flared up, ignited the building, and spread to the adjoining buildings. Id. at 1309-10.

According to the plaintiffs, the defendant building owner breached its duty to inspect the premises for dangerous conditions and to take corrective measures to avoid injury. Id. at 1310. At the conclusion of the plaintiffs case-in-chief, the trial court granted a motion for a directed verdict in favor of the defendant building owner.

This Court affirmed. In doing so, we enunciated the following rule:

As a general rule neither the owner nor the general contractor are liable for the negligence of an independent contractor who performed work for them unless, as urged by the plaintiffs here: (1) the work undertaken by the independent contractor is inherently or intrinsically dangerous, or (2) the person for whom the work is performed gives express or implied authorization to an unsafe practice or has the right to or exercises operational control over the method and means of performing the work.
Id. at 1310-11 (citations omitted).

We held that approving the architectural plans and having the right to inspect for compliance with the plans was not sufficient control to render the owner liable for the subcontractor’s negligence under La. C.C. art. 2315. Id. at 1311.

Similarly, in Dauzat v. Thompson Const. Co., Inc., 02-989 (La.App. 5 Cir. 1/28/03), 839 So.2d 319, the plaintiff was employed as a laborer for a sprinkler Ininstallation company hired by a general contractor to build a shopping center on previously vacant land. He was working on an electrical lift attempting to guide an eight inch pipe into its connection. Id. at 321. While another sprinkler installation company controlled the lift, the lift’s front left tire went into a hole in the concrete slab, causing the lift to lurch and the plaintiff to fall from the lift to the ground some twenty feet below. Id. The plaintiff filed suit against the landowner and the general contractor. The trial court granted a motion for summary judgment filed by the landowner.

This Court affirmed. We noted that in Villaronga, we found that a landowner could be liable for a subcontractor’s negligence if it exercised operational control over the method and means of performing the construction, and/or gave express or implied authorization to an unsafe practice. Id. The Dauzat plaintiff contended “that [the landowner] approved the architectural plans that provided for the hole in the floor as part of the construction” and that it therefore exercised operational control over the project. We rejected that argument, concluding that “[tjhere was no showing that [the landowner] had any control over the construction operations and the contrary was established by affidavit. Approving the plans and inspecting for compliance with the specifications does not establish such control that would result in its liability.” Id. at 322.

The Villaronga proposition has been reaffirmed by this Court on several occasions since Dauzat. See, e.g., Arroyo v. East Jefferson General Hosp., 06-799 (La.App. 5 Cir. 3/13/07), 956 So.2d 661, 664; Sims v. Cefolia, 04-343 (La.App. 5 Cir. 11/30/04), 890 So.2d 626, 631.

Thus, in keeping with Dauzat and Villaronga, we find that Wendy’s cannot be liable to Mr. Meaux under La.C.C. art. 2315 unless the work undertaken by Mr. Meaux was inherently or intrinsically dangerous, or Wendy’s gave express or | ^implied authorization to an unsafe practice or had the right to exercise operational control over the method and means of performing the work.

In this case, the evidence establishes that Wendy’s did not exercise control over JAFC’s and Mr. Meaux’s means of performing the work on its restaurant. The evidence also establishes that Wendy’s did not give express or implied permission to perform an unsafe practice.

Mr. Meaux argues that the first exception has been established because a hidden defect rendered the wall “inherently or intrinsically dangerous” to anyone performing work on the building. Wendy’s responds that “the construction activity was no more dangerous than any standard construction project” and that it was JAFC’s negligence that caused the accident.

“Ultrahazardous” or “inherently dangerous” activities are those that can cause injury to others even when conducted with the greatest prudence and care. Vicknair v. Boh Bros. Const. Co., L.L.C., 03-1351 (La.App. 5 Cir. 3/30/04), 871 So.2d 514, 521. The critical inquiry in determining whether activity is ultrahazardous or inherently dangerous is whether it can be made safe when it is performed in a proper and workmanlike manner. Buras v. Lirette, 97-1255 (La.App. 4 Cir. 12/23/97), 704 So.2d 980, 983.

To support his claim that the fascia retrofit was an inherently dangerous activity, Mr. Meaux introduced the affidavit of Dr. R. Richard Avent. Dr. Avent is a structural engineer and a former chairman of the Department of Civil and Environmental Engineering at Louisiana State University. In the affidavit, Dr. Avent opined that the roof and walls of the Wendy’s restaurant were designed to be held together by structural steel. Dr. Avent confirmed that the original 1980’s building plans for the restaurant required that the north wall be anchored to the | ^structural steel in six different locations. Dr. Avent opined that none of the bolts intended to anchor the north wall were present. Dr. Avent observed steel connector plates on the north wall that had empty holes that were clearly intended for bolts to connect the cinder block wall to the steel structure.

Dr. Avent opined that the fact that the original failure to bolt the cinder block wall structural steel destroyed the wall’s structural integrity, rendering the wall unstable. Dr. Avent opined that, in the absence of bolts attached to structural steel, the overhanging wooden fascia of the roof had to remain intact to support the wall. Dr. Avent additionally opined that if the wall had been anchored to the structural steel, it would not have collapsed.

Dr. Avent opined that during the construction of the building, the failure to anchor the front and back walls to the steel structure constituted an open and obvious defect. However, once the fascia was placed over the wall, the defect was hidden. Dr. Avent further opined that contractors could not have discovered that the north wall was not connected to the structural steel without removing the fascia. Dr. Avent concluded “the work performed involving the unsound wall was intrinsically and inherently dangerous. The fact that the weight of the cosmetic wooden structure would cause the masonry wall to collapse was not foreseeable to the contractor.”

We find that the plaintiff, through Dr. Avent’s affidavit, has raised a material issue of fact as to whether the fascia retrofit was an inherently dangerous activity in the face of the hidden structural instability of the front wall. Dr. Avent opined that the alleged defect in the north wall was hidden, that the fascia retrofit required a contractor to remove the fascia, and that it was essential that the roof remain intact to support the wall because the wall had not been attached to structural steel. Thus, according to Dr. Avent, it was not possible to make the fascia retrofit safe lueven if the work was performed in a proper and workmanlike manner. Put differently, it was not possible for JAFC employees to remove the fascia without the north wall of the restaurant collapsing according to Dr. Avent. Additionally, Dr. Avent specifically opined that the fascia retrofit was “inherently and intrinsically dangerous.” Wendy’s presented the trial court with no evidence to rebut the claims in Dr. Avent’s affidavit.

We therefore find that that the trial court improperly granted summary judgment as to Mr. Meaux’s general negligence claims.

Strict Liability — La.C.C. art. 2317.1 and La.C.C. art. 2322

Mr. Meaux also contends that there are genuine issues of material fact as to whether the alleged defects in the wall created an unreasonably dangerous condition or defect and that Wendy’s is therefore strictly liable under La. C.C. art. 2317.1, and 2322. Wendy’s contends that summary judgment was appropriate because there is no evidence in the record that it knew or should have known of the defect. The trial court agreed with Wendy’s. In its reasons for judgment, the trial court stated that the alleged defect was “obvious” and that it “should have been known to the contractors on inspection and not a defect that Wendy’s knew or should have known about.”

Strict Liability Generally

Mr. Meaux argues that the fact that the wall was not bolted to the structural steel was an unreasonably dangerous condition and that the building owner is liable to him because that dangerous condition injured him. He argues that this inherently dangerous condition was hidden, known, or knowable by the building owner but hidden from the contractor.

La. C.C. arts. 2317 and 2317.1 define the basis for delictual liability for defective things. La. C.C. art. 2322 defines the basis for delictual liability for [ ^buildings. Prior to 1996, an owner’s liability for a vice or defect on the premises was rooted in La.C.C. arts. 2317 and 2322. See, e.g., Celestine v. Union Oil Co. of California, 98-1868 (La.4/10/95), 652 So.2d 1299. Both La.C.C. art. 2317 and art. 2322 formerly imposed strict liability based upon status as owner or custodian rather than on personal fault. Id. at 1303. In 1996, the Louisiana legislature adopted La. C.C. art. 2317.1 and significantly amended La. C.C. art. 2322.

La.C.C. art 2317.1 currently provides, in pertinent part:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

La.C.C. art. 2322 currently provides, in pertinent part:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Accordingly, a plaintiff alleging strict liability of a building owner or custodian must now prove the following elements: (1) that the defendant knew or should have known of the vice or defect; (2) that the damage could have been prevented by the exercise of reasonable care; and (3) that the defendant failed to exercise such reasonable care. Cochran v. Safeguard Self-Storage, Inc., 02-1272 (La.App. 5 Cir. 4/29/03), 845 So.2d 1128, 1130. If the plaintiff fails to prove any one of these elements, the claim fails. Dauzat v. Thompson Const. Co., Inc., 02-989 (La.App. 5 Cir. 1/28/03), 839 So.2d 319. In addition, for strict liability to attach to a building owner or custodian, the “vice” or “defect” must constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person | musing ordinary care under the circumstances. Monson v. Travelers Property & Cas. Ins. Co., 06-921 (La.App. 5 Cir. 4/24/07), 955 So.2d 758; Loescher v. Parr, 324 So.2d 441, 446-447 (La.1975).

Actual or Constructive Knowledge

In its motion for summary judgment, Wendy’s contended that summary judgment is appropriate in this case because it did not know, nor could it have known, of the existence of the alleged defect in the restaurant wall. Mr. Meaux contends that Wendy’s knew or should have known about the alleged defect. We agree with Mr. Meaux.

A plaintiff alleging strict liability must prove that the defendant had actual or constructive knowledge of the vice or defect. Constructive notice means “the existence of facts which infer actual knowledge.” La.R.S. 9:2800(D). There is constructive knowledge if a condition that caused the injury existed for such a length of time that the responsible party must have discovered it in the exercise of ordinary care and diligence. Blount v. East Jefferson General Hosp., 04-407 (La.App. 5 Cir. 10/12/04), 887 So.2d 535, 538; Joseph v. City of New Orleans, 02-1996 (La.App. 4 Cir. 3/5/03), 842 So.2d 420. The concept of constructive knowledge imposes a reasonable duty to discover apparent defects in things under the defendant’s garde. Dufrene v. Gautreau Family, LLC, 07-547 (La.App. 5 Cir. 2/22/08), 980 So.2d 68, writ denied, 980 So.2d 694, 2008-0629 (La.5/9/08), writ denied, 980 So.2d 698, 2008-0628 (La.5/9/08). One is presumed to have constructive notice of a defect or dangerous condition when it is shown to have existed for such a long period of time that knowledge thereof can be presumed, or that it can be said that one should have had knowledge of the condition. Charan v. Bowman, 06-0882 (La.App. 1 Cir. 8/1/07), 965 So.2d 466, writ denied, 07-1773 (La.11/9/07), 967 So.2d 505.

Several Louisiana cases have addressed the issue of a custodian’s failure to discover vices or defects in things under their custody for a lengthy period of time. For example, in Moody v. Blanchard Place Apartments, 34,587 (La.App. 2 Cir. 6/20/01), 793 So.2d 281, the plaintiff sustained injuries when he received an electric shock from the stove on which he was cooking due to a short circuit. The stove was approximately ten years old at the time of the plaintiffs injury. Id at 284. The onsite manager of the plaintiffs apartment building testified during a deposition that she inspected the stoves in the apartment building; however, she never inspected the actual wiring beneath the co-oktop where the short circuit occurred. The onsite manager did state, however, that repairmen occasionally made repairs to the stove. Id. The jury returned a verdict holding the defendants liable. On appeal, the Second Circuit took up the question of whether the jury was manifestly erroneous in finding that the defendants knew or should have known that the stove presented a risk of harm. The Second Circuit found no manifest error in the jury’s finding, noting that the property management company’s “policy of not requiring that (and almost making it cost prohibitive to have) qualified technicians maintain the electrical appliances on their premises is indicative that it knew or should have known that a dangerous condition was or could have been present in any of its appliances.” Id. at 294-95.

In Johnson v. City of Winnfield, 37,939 (La.App. 2 Cir. 12/10/03), 862 So.2d 433, the plaintiff was injured when he stepped on a manhole cover. As he stepped on the manhole cover, the manhole cover shifted, and the plaintiffs leg fell into the sewer line. Immediately after the accident, the store manager lifted the cover so the plaintiff could extricate his leg. Id. at 435. The manager described the cover as 11s“worn on the bottom from erosion,” with the “little lip around the bottom, that sits in the hole, that part was worn off.” Id. The manager noted at trial that he had worked at the grocery store for 23 years, and had never noticed anything wrong with this manhole cover. The city did not have a routine manhole inspection policy, however, a city maintenance worker testified that he would have inspected this particular manhole shortly before the accident, after a private contractor had worked on the main sewer line from that location. That same worker replaced the manhole cover after the plaintiffs accident, even though he testified that when he arrived, the cover looked “fine”; he tried walking across it, “and it didn’t pop up on [him].” Id. Three city maintenance workers (including the worker who replaced the manhole cover that caused the plaintiffs injury) testified they had never received any complaints regarding the manhole cover. The Second Circuit found no error in the trial court’s conclusion that the city had actual or constructive knowledge that the manhole cover was unstable. Id. at 437-38.

In this case, after conducting a de novo review of the record, we find that there is a material issue of fact as to whether Wendy’s had constructive or actual notice of the alleged defects in the restaurant wall. Dr. Avent averred that the failure to bolt the wall to the structural steel was a defect that existed at the time of the construction of the restaurant and that Wendy’s should have noticed the defect at the time of construction. The architectural plans for the restaurant clearly indicate that the north wall was supposed to be bolted to the structural steel. Dr. Avent indicated that Wendy’s would have discovered the defect if it had exercised due care and had conducted proper inspections during the construction of the restaurant. Wendy’s did not introduce evidence contesting these findings. Moreover, the parties do not dispute that the restaurant has been in Wendy’s custody for approximately twenty years, and there is no indication in the record 119that Wendy’s ever inspected the wall or discovered the alleged defect.

“Repairman Exemption

Even assuming that the failure to bolt the masonry wall to the structural Steel was a dangerous condition, the trial court found in his reasons for judgment that in strict liability cases, “a repairman hired to perform the work of his employer cannot recover from the owner for injuries received while working in the area under repair.” The trial court cited Desormeaux v. Audubon Ins. Co., 611 So.2d 818 (La.App. 3 Cir.1992), writ not considered, 613 So.2d 966 (La.1993), writ denied, 613 So.2d 1002 (La.1993) in support of this assertion.

The Louisiana Supreme Court has recognized that “there is no per se exception of repairmen from the ambit of an owner’s strict liability. Such exception only applies if a factual analysis results in a determination that the risk of injury or harm is unreasonable under the circumstances.” Celestine v. Union Oil Co. of Cal., 94-1868 (La.4/10/95), 652 So.2d 1299, 1304-05.

In Celestine, the plaintiff (a welder) sued the owner of an offshore oil platform after he was injured by a falling railing that he had been hired to repair. After trial, the jury found the defendant was not negligent but that the condition of the defendant’s oil platform created an unreasonable risk of injury which was a cause of the plaintiffs accident and injury. Id. at 1302. The defendant filed a motion for judgment notwithstanding the verdict contending that it should not be held strictly liable where the plaintiff was performing repair work because it was not unreasonable to subject a repairman to the risks inherent in making repairs. The trial court denied the motion. The Third Circuit reversed the finding that the defendant was strictly liable and affirmed that the defendant and its employees were not negligent. Celestine v. Union Oil Co. of Cal., 93-1330 (La.App. 3 Cir. 5/4/94), 636 So.2d 1138. The Louisiana Supreme Court granted the plaintiffs writ | ^application to address this question: “Does Louisiana law recognize a ‘repairman’ exception to an owner’s strict liability for injury caused by a vice, defect or ruin on the premises?” Celestine, 652 So.2d at 1303.

The Supreme Court said no. The Supreme Court began its analysis by finding that in order to prevail under a strict liability theory of recovery, the plaintiff “must show that he was exposed to an unreasonable risk of harm from the condition of the handrail which he was hired to repair.” Id. at 1303 (emphasis in original).

The court quoted the federal Fifth Circuit in Ladue v. Chevron, USA, Inc., 920 F.2d 272 (5th Cir.1991) for the proposition that the question of whether a risk is unreasonable is personal to the particular plaintiff:

Whether a particular risk of harm is reasonable cannot be determined in a vacuum. The phrase “unreasonably dangerous,” in the words of Louisiana’s late distinguished Professor Wex S. Malone, “has no discernible content of its own and ... must acquire its meaning solely from the environment attendant on each of the variety of disputes in which it is put to use.” Unlike the regime of strict products liability, which uses the “ordinary consumer” as its benchmark, Louisiana’s scheme of strict liability under Articles 2317 and 2322 posits no constant person or persons, mythical or real, with respect to whom the reasonableness of a given risk is to be measured. For that reason, the Louisiana courts have found themselves under the rubric of assessing a risk “under all of the circumstances'of a particular case,” determining the reasonableness of a given risk “vis-a-vis the plaintiff,” or more accurately, vis-a-vis the plaintiff and those similarly situated.
Id. at 1304 (footnotes and citations omitted).

The Supreme Court further stated that the determination of whether a particular risk of harm is reasonable is a matter wed to the facts of the case. Id. The Supreme Court ultimately concluded:

We do not adopt a “repairman” exception to strict liability under La.C.C. arts. 2317 and 2322. However, we do conclude that plaintiffs status as a repairman is a significant factor in determination of whether a risk is unreasonable. Id. at 1305.

|21In Desormeaux, the plaintiff was a skilled general contractor and roofer. The plaintiffs father hired the plaintiff to repair a leak in the father’s roof. Id. at 819. While in his father’s attic, the plaintiff fell and injured his back. Id. at 820. He brought suit against his father’s liability insurer for severe injuries he received in the fall. The Desormeaux trial court found that the roof had fallen into “ruin” as a result of the neglect of the owners. In its reasons for judgment, the Desor-meaux trial court found that “[t]he evidence shows that the accident was caused by the water which was present on the ceiling joists. Whether the water came directly from the leaking roof or from the overflowing of the washtub is immaterial for the very presence of the water in either case was a result of the severely damaged roof.” Id. at 821.

The Third Circuit reversed and rendered judgment in favor of the defendant. Id. at 821-22. However, the Desormeaux court did not hold that a “repairman” can never recover from a building owner for injuries received while working in the area under repair in strict liability cases. Rather, the court held:

The facts of this case present a repairman making repairs in an area that presented an obvious risk of harm. The body of jurisprudence interpreting strict liability and/or negligence under these circumstances is well established. An owner is not liable for injury which results from a condition which should have been observed by the plaintiff in the exercise of reasonable care or which was obvious.
Id. at 820-21 (emphasis in original) (citations omitted).

Thus, Desormeaux is limited to those situations where a repairman attempts to make repairs in an area that presents an “obvious” risk of harm.

The Louisiana courts of appeal have reaffirmed this holding on several occasions. See, e.g., Carter v. Exide Corp., 27,358 (La.App. 2 Cir. 9/29/95), 661 So.2d 698, 703.

All things considered, under our de novo review of the trial court’s grant of 122summary judgment and the circumstances of this case, we And that a genuine issue of material fact still exists with respect to whether or not the defect in this case presented an unreasonable risk of harm.

CONCLUSION AND DECREE

Because there are genuine issues of material fact in this matter with respect to Mr. Meaux’s general negligence claims and strict liability claims, we find that the trial court improperly granted summary judgment in Wendy’s favor. The summary judgment rendered in favor of Wendy’s is reversed and the case is remanded for proceedings consistent with this opinion. All costs of this appeal are assessed to Wendy’s.

REVERSED AND REMANDED.

      . At the time of Mr. Meaux’s accident, Mr. Ross was F.J.B.'s project manager.

      . In his brief, Mr. Meaux contends that the trial court improperly engaged in fact finding and ruled upon disputed material facts, which is impermissible in the summary judgment context. He cites Maiorana v. Melancon Metal Bldgs., Inc., 05-933 (La.App. 5 Cir. 4/25/06), 927 So.2d 700 in support of this contention. However, in Maiorana, we held that the trial court “had to choose between the contradictory statements’’ of the subcontractor and the owner of a building. Id. at 705-06. The issue in that case was whether the building owner knew or should have known about defective skylights in the building.

      . Accordingly, Mr. Meaux’s claim that Wendy's had a duty to "inspect the building during construction and prior to accepting it for occupancy” is inaccurate.

      . This definition applies to public entities, but courts have applied it to strict liability claims under La.C.C. art. 2317 and La.C.C. art. 2322 against other entities as well. See, e.g., Dronette v. Shelter Ins. Co., 2008-654 (La.App. 3 Cir. 12/10/08), 998 So.2d 942.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. David W. JONES.
    No. 10-KA-281.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 26, 2010.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Virginia Skaer, Assistant District Attorneys, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appellee, The State of Louisiana.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, David W. Jones.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

[2Pavid W. Jones seeks review of his sentence of fifteen years without probation or suspension of sentence. We affirm.

STATEMENT OF THE CASE

On December 20, 2007, the Jefferson Parish District Attorney filed a bill of information charging David W. Jones with violation of La. R.S. 40:981.3 by distribution of cocaine within 1,000 feet of Providence Baptist Church in Jefferson Parish. The defendant pleaded not guilty on December 21, 2007.

On March 13, 2008, the defendant withdrew his plea of not guilty, entered a plea of guilty as charged, and signed a waiver of constitutional rights. On the same day, the State filed a bill of information alleging the defendant had previously been convicted of a felony on April 19, 2007. The defendant admitted to being a second-felony offender and signed a multiple offender waiver of rights form.

On March 28, 2009, in accordance with his plea agreement, the defendant was sentenced to 15 years in the custody of the Department of Corrections, with the first two years to be served without benefit of probation, parole, or suspension of sentence. The district court thereafter vacated the original sentence and imposed |san enhanced sentence of 15 years in the custody of the Department of Corrections, without benefit of probation or suspension of sentence, in accordance with La. R.S. 15:529.1.

On November 5, 2009, the defendant filed an application for post-conviction relief, alleging his guilty plea was unconstitutional and invalid because he was not given notice of the true nature of his offense. The district court denied the application for post-conviction relief, finding it was premature because the defendant had not exhausted his appellate rights. The defendant filed a second application for post-conviction relief, requesting an out-of-time appeal because the time to file an appeal as a matter of right had elapsed. The district court granted the defendant’s motion for an out-of-time appeal on January 14, 2010, and dismissed his application for post-conviction relief without prejudice. This appeal ensued.

FACTS

Because the defendant entered a guilty plea prior to trial and without a pretrial motion hearing, the facts of this case are taken from the bill of information. It alleges that on October 24, 2007, the defendant violated La. R.S. 40:981.3 in that he distributed cocaine within 1,000 feet of Providence Baptist Church.

Appointed counsel’s appellate brief on behalf of the defendant was timely filed on May 3, 2010. In addition, the defendant requested and was granted time to file a pro se supplemental brief. The pro se brief was due June 17, 2010, but none has been filed.

ANDERS BRIEF

Appointed appellate counsel has filed a 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 (La.12/12/97), 704 So.2d 241 (per curiam), asserting that she 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.

The State concurs with appellate counsel’s assessment that there are no non-frivolous issues for appeal.

In Anders, 386 U.S. at 744, 87 S.Ct. at 1400, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he or she finds the case to be wholly frivolous after a conscientious examination of it. Such a 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).

The procedure for compliance with An-ders set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), 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 cu-riam), 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. Reduced to simplest form, it is as follows:

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. Bradford, 95-929 at 4, 676 So.2d at 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. Id. 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 appellate counsel. Id.

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. 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.” Id.

Here, the defendant’s appellate counsel asserts that after a detailed review of the record, she can find no non-frivolous issues to raise on appeal. Counsel first notes that there are no pre-trial rulings from which to appeal. Counsel further notes that the defendant pleaded guilty to the charges and that the trial court performed a complete colloquy to assure that the plea was made with all constitutional considerations. In addition, counsel notes that both the trial court’s colloquy and the plea form signed by the defendant and his counsel indicate that the defendant was informed of the considered sentence of fifteen years. Finally, counsel notes that the defendant received the minimum sentence he could receive as a second felony offender. As such, counsel concludes that the sentence does not appear to be constitutionally excessive.

| (¡Appellate counsel has filed a motion to withdraw as attorney of record, which states that she notified the defendant of the filing of this motion and advised him of his right to file a pro se brief in this appeal. In addition, this Court sent the defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until June 2, 2010, to file a pro se supplemental brief. We subsequently granted the defendant an extension until June 17, 2010, to file a supplemental brief, but the defendant never filed a pro se supplemental brief.

The State filed a response to appellate counsel’s brief, noting that the brief shows a complete and thorough recitation of the procedural history of the case. The State contends that counsel has “cast an advocate’s eye” over the record and has determined that there were no significant non-frivolous issues upon which to base an appeal. The State requests that this Court affirm the defendant’s conviction and sentence.

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

SENTENCE

We have discovered a sentencing issue, but we have determined it does not require remand or additional briefing by counsel. There were two sentencing errors that made the defendant’s original sentence illegally lenient: (1) the sentencing range presented to the defendant in connection with the underlying offense was incorrect; (2) the trial judge failed to impose the mandatory fine of $50,000 required by La. R.S. 40:967 and La. R.S. 40:981.3.

Pursuant to La. R.S. 40:981.3 and La. R.S. 40:967, the sentencing range for distribution of cocaine in a drug-free zone is between two and forty-five years at 17hard labor with a fine of $50,000. See State v. Young, 07-1021, p. 5 (La.App. 5 Cir. 3/25/08), 984 So.2d 144, 147-48, writ denied, 08-0938 (La.11/12/08), 996 So.2d 1105. Thus, the defendant faced a sentencing range of two to forty-five years, not five to thirty years. This incorrect calculation also affected the calculation of the enhanced sentencing range on the habitual offender bill.

Any defects in the original sentence became moot, however, once the original sentence was vacated prior to the defendant’s sentencing as a second felony offender. See State v. Moore, 06-875, p. 3 n. 2 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 39 n. 2.

In the habitual offender proceeding, the defendant was advised that he faced a possible sentencing range of fifteen to forty-five years in the Department of Corrections as a second felony offender and that he would receive a sentence of fifteen years. In the multiple bill waiver of rights form, the defendant indicated that he understood he would be sentenced to fifteen years and signed the form, indicating he understood both the sentencing range and his specific sentence.

As noted above, however, the sentencing range presented to the defendant was incorrect. The defendant’s enhanced sentence as a habitual offender, therefore, is illegally lenient, because he received less than the mandatory minimum sentence required by La. R.S. 15:529.1. According to La. R.S. 15:529.1(A)(l)(a), the defendant’s sentencing range as a second felony offender [ Swas to be “not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.” Pursuant to La. R.S. 40:981.3 and La. R.S. 40:967, the sentencing range for distribution of cocaine in a drug-free zone is between two and 45 years at hard labor with a fine of $50,000. Therefore, as a second felony offender, the defendant faced a sentencing range of 22 ½ to 90 years. In accordance with his plea agreement, the defendant received a 15-year sentence, which is 7½ years less than the mandatory minimum term of imprisonment required by La. R.S. 15:529.1.

An appellate court has the authority to correct an illegally lenient sentence at any time, even if the defendant has entered into a plea bargain and is negatively affected by the correction. State v. Magana, 09-195, p. 9 (La.App. 5 Cir. 10/13/09), 27 So.3d 893, 898. The appellate court has this authority, even if the issue of the illegal sentence was not raised by the defendant or the State pursuant to La.C.Cr.P. art. 882. Magana, 09-195 at 9, 27 So.3d at 898.

An illegally lenient sentence imposed pursuant to a plea bargain is an absolute nullity only if the plea bargain has an unlawful cause or a negotiated sentence prohibited by law. State v. Campbell, 08-1226, p. 8 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, 1081, unit denied, 09-1385 (La.2/12/10), 27 So.3d 842. Where the sentence is illegally lenient due to the failure to impose a mandatory fine, the plea bargain is not an absolute nullity. Id. at 9, 15 So.3d at 1081.

We have authority under La.C.Cr.P. art. 882 to correct an illegally lenient sentence at any time, even if the defendant has entered into a plea bargain and is negatively affected by the correction. Campbell, 08-1226 at 8, 15 So.3d at 1081. In indigent defendant matters, however, we often have decided not to use that authority. Id.

|flThe defendant in this case appears to be indigent, as evidenced by his representation by the Louisiana Appellate Project in the present case.

When a sentence is illegally lenient due to the failure of the trial court to impose a mandatory fine, the plea bargain does not constitute an absolute nullity. State v. Harrell, 09-364, p. 16 (La.App. 5 Cir. 5/11/10), 40 So.3d 311, 321.

The defendant here received a sentence that could be permissible under certain circumstances rather than a sentence prohibited by law. The defendant consulted with his attorney prior to entering his guilty pleas, was advised of the sentence he would receive by pleading guilty, and received a favorable plea bargain. Moreover, the trial court did not impose a fíne. Under the circumstances, the trial court’s failure to impose the mandatory fine was harmless. We refrain from exercising our authority under La. C.Cr.P. art. 882 to correct the defendant’s illegally lenient sentence. See Campbell, 08-1226 at 8, 15 So.3d at 1080-81; Harrell, 09-364 at 8, 40 So.3d at 316.

Other than the sentencing issue, which we find does not require remand, appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal.

ERROR PATENT DISCUSSION

The defendant requests an error patent review. We routinely review the record for errors patent, regardless of whether defendant makes such a request. La. 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).

First, we note the defendant was not fully advised of his right to seek post-conviction relief. La.C.Cr.P. art. 930.8 provides that a defendant has two years from the date “the judgment of conviction and sentence has become final” within | mwhich to file an application for post-conviction relief. The article requires that the trial judge inform a defendant of the prescriptive period at the time of sentencing. Although the commitment from the original sentencing and the multiple bill hearing and sentencing on March 28, 2008, indicates that an advisal was given regarding the two-year prescriptive period for seeking post-conviction relief under La. C.Cr.P. art. 930.8, a review of the transcript reveals that the trial judge did not advise the defendant of the prescriptive period after the defendant’s original sentence or after the original sentence was vacated and the defendant was re-sentenced as a second felony offender.

Nevertheless, the record reveals that the defendant was given an advisal via his waiver of rights form. Although a written advisal via a waiver of rights form is permitted, the waiver of rights form here reflects that the defendant received an incomplete advisal, because he was advised that “any post conviction relief applications must be filed within two (2) years of the date that this sentence becomes final.”

The multiple bill waiver of rights form does not refer to applications for post-conviction relief. This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final is incomplete. State v. Grant, 04-341, p. 5 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598 (emphasis in original).

We hereby correct that error by way of this opinion and we include a proper advi-sal in the decree.

We further note that the defendant’s enhanced multiple bill sentence was illegally lenient in another regard. At the hearing on the multiple offender bill of information on March 28, 2008, the trial court vacated the defendant’s original sentence, and imposed an enhanced sentence of 15 years imprisonment in the 11 [Department of Corrections, without benefit of probation or suspension of sentence. La. R.S. 40:981.3 and La. R.S. 40:967 require that the first two years of the sentence be imposed without the benefit of parole, probation or suspension of sentence. (Emphasis added.)

When a defendant is sentenced as a habitual offender, the penalty increase is computed by reference to the sentencing provisions of the underlying offense. State v. Bruins, 407 So.2d 685, 687 (La.1981). Similarly, the conditions imposed on the sentence are those called for in the referenced statute. Bruins, 407 So.2d at 687.

Because La. R.S. 40:981.3 and La. R.S. 40:967 require that the first two years of the sentence be imposed without benefit of parole, probation or suspension of sentence, the trial court should have restricted parole eligibility for the first two years of the enhanced multiple bill sentence. Bruins, 407 So.2d at 687. However, the matter does not require corrective action, because the without-benefits provision of a statute is self-activating. State v. Williams, 00-1725, p. (La.11/28/01), 800 So.2d 790, 799, and La. R.S. 15:301.1(A).

DECREE

For the foregoing reasons, the defendant’s conviction and sentence are affirmed. Appellate defense counsel’s motion to withdraw as attorney of record is hereby granted.

We advise the defendant that no application for post-conviction relief, including applications that seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La.C.Cr.P. arts. 914 or 922.

AFFIRMED.

      . The predicate charge was case number 06-2890, 24th Judicial District Court, in which the defendant pleaded guilty to violation of La. R.S. 40:967(C).

      . The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . La. R.S. 40:981.3(E)(1) provides, "Whoever violates a provision of this Section shall be punished by the imposition of the maximum fine and be imprisoned for not more than one and one-half times the longest term of imprisonment authorized by the applicable provisions of R.S. 40:966 through 970.” La. R.S. 40:967(B)(4)(b) provides that any person who distributes cocaine "shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.”

      . The habitual offender statute, La. R.S. 15:529.1, does not authorize the imposition of a fine, but only provides for enhanced sentences relating to the term of imprisonment. Moore, 06-875 at 3, 958 So.2d at 39 n. 2, citing State v. Dickerson, 584 So.2d 1140 (La.1991) (per curiam).

      . La.C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. As noted, the defendant was informed that he would receive a 15-year sentence on the multiple bill prior to admitting to the allegations therein. He indicated his understanding of the sentence, both in court and on his waiver-of-rights form.