text:
    In re Michael R. WALKER.
    No. 2010-B-2175.
    Supreme Court of Louisiana.
    Nov. 19, 2010.
   PER CURIAM.

| iThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Michael R. Walker, an attorney licensed to practice law in Louisiana but currently on interim suspension based upon his conviction of a serious crime. In re: Walker, 08-2096 (La.9/19/08), 990 So.2d 737.

UNDERLYING FACTS

In 1995, respondent assumed the office of Judge of the 1st Judicial District Court for the Parish of Caddo, State of Louisiana. On October 10, 2007, a federal grand jury in the Western District of Louisiana returned an indictment charging respondent with engaging in a racketeering enterprise whereby he used his judicial office “to enrich himself by extracting bribes in the form of cash and other things of value from individuals and organizations with business in his court.” Specifically, the indictment alleged that in return for cash and other things of value, respondent made himself available to quickly set bonds, reduce bonds, recall arrest warrants, and remove probation holds for individuals who had business in his court. On May 31, 122008, a jury found respondent guilty as charged. He was sentenced to serve 120 months in federal prison and ordered to pay a $250,000 fine.

Respondent resigned from judicial office following his conviction. Accordingly, having resumed the status of a lawyer and because the Judiciary Commission did not have an opportunity to exercise jurisdiction over respondent’s conduct prior to his resignation from the bench, respondent is subject to the jurisdiction of the lawyer disciplinary agency. See Supreme Court Rule XIX, § 6(B).

DISCIPLINARY PROCEEDINGS

In September 2008, the ODC filed one count of formal charges against respondent, alleging that his conduct as set forth above violated Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct.

Respondent did not file an answer to the formal charges. Nevertheless, at the request of the ODC, this matter was set for a hearing before a hearing committee upon the finality of the criminal conviction. Respondent was represented by counsel at the hearing but was not present in person because he was incarcerated.

Hearing Committee Report

The hearing committee made factual findings consistent with the underlying facts set forth above. The committee also determined that respondent engaged in |scriminal conduct, that his conduct was dishonest, and that he violated Rule 8.4 as charged.

The committee found respondent violated a duty owed to the public. His conduct was intentional and caused substantial harm to the legal profession. The committee further determined that under the ABA’s Standards for Imposing Lawyer Sanctions, the applicable baseline sanction is disbarment.

The committee did not discuss whether any aggravating factors are present in this case. It found no mitigating factors.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the committee recommended he be permanently disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

The disciplinary board adopted the hearing committee’s factual findings and agreed that respondent violated the Rules of Professional Conduct as charged in the formal charges. The board found respondent intentionally violated duties owed to the public, which has a legitimate expectation that a lawyer elected to serve as a judge will not accept bribes, and caused actual harm. The baseline sanction for respondent’s misconduct is disbarment.

[4The board found no mitigating factors are present. In aggravation, the board found the following factors: prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1976).

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed in a given case depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

Respondent stands convicted of racketeering stemming from a public bribery scheme. This crime is a felony under federal law and clearly warrants serious | ¡¡discipline. Indeed, at the hearing in this matter, respondent’s counsel conceded that disbarment is a proper sanction for his conduct. However, in their respective reports, the hearing committee and the disciplinary board have concluded that respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar.

We agree. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. While these guidelines are not intended to bind this court in its decision-making process, they present useful information concerning the types of conduct which might be considered worthy of permanent disbarment. For purposes of the instant case, Guidelines 2 and 7 are relevant. Those guidelines provide:

GUIDELINE 2. Intentional corruption of the judicial process, including but not limited to bribery, perjury, and subornation of perjury.
GUIDELINE 7. Malfeasance in office which results in a felony conviction, and which involves fraud.

Here, respondent participated in a bribery scheme while serving as an elected judge. He was subsequently convicted of racketeering and sentenced to a ten-year term of imprisonment. Notably, this sentence represented an upward departure from the advisory guideline range of 37-46 months because the district judge felt that respondent’s conduct had tainted the judicial process and undermined “the idea of equality in a court of law.” We could not agree more with these sentiments, and find respondent’s conduct clearly falls within the scope of the permanent disbarment guidelines.

Accordingly, we will accept the disciplinary board’s recommendation and impose permanent disbarment.

| (¡DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Michael R. Walker, Louisiana Bar Roll number 13186, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . Respondent’s conviction and sentence were affirmed by the United States Court of Appeals for the Fifth Circuit, and in February 2010, his application for writ of certiorari was denied by the United States Supreme Court. Walker v. United States, — U.S. -, 130 S.Ct. 1551, 176 L.Ed.2d 142 (2010).

      . The committee noted that respondent’s counsel sought from him on two occasions mitigating evidence to submit at the hearing; however, respondent "refused to present the committee with any factors to consider in mitigation.”

      . In 1985, respondent received a formal private reprimand from the Committee on Professional Responsibility of the Louisiana State Bar Association for failing to cooperate in a disciplinary investigation. It further appears that respondent received an admonition in 1987, however, the basis for this sanction is not clear from the record.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Christian VACCARI v. Joan VACCARI.
    No. 2010-C-2016.
    Supreme Court of Louisiana.
    Dec. 10, 2010.
   PER CURIAM.

_|jWe granted this writ to clarify under what circumstances an award of final child support may be made retroactive to the date of judicial demand.

During the hearing on Joan Vaccari’s demand for interim child support, Christian Vaccari, her ex-husband, submitted an affidavit stating that his 2004 income was approximately $262,000. He was ordered to pay $7,000 per month in interim child support. A court-appointed CPA later determined that Mr. Vaceari’s actual 2004 income was far higher than he had previously claimed. Based on this newly discovered evidence, the court awarded Ms. Vaccari a final monthly child support payment of $16,546. The trial court ordered the final support award retroactive to the date of Ms. Vaccari’s judicial demand. The court of appeal reversed and held the trial court had no statutory authority to make the award retroactive.

We reverse and reinstate the judgment of the trial court, finding the relevant statute does not forbid a court from rendering a final child support award retroactive, and good cause exists for the trial court to do so here. This is not to say a final child support award must be retroactive, or even that it should be made retroactive in every ^proceeding. But in cases such as this one, where a party files a false affidavit in an effort to avoid the full extent of his child support obligation, it is only proper to make the award retroactive so he will not benefit from his own misdeeds.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Vaccaris married in 1989, and have four children. Mr. Vaccari filed for divorce in early 2004. On March 4, 2004, Ms. Vaccari filed an answer and reconven-tional demand seeking, inter alia, child support.

During the initial hearing for an interim child support award, Mr. Vaccari represented his net income during 2004, exclusive of taxes, was $262,273. Based on this stated income, the hearing officer recommended Mr. Vaccari be ordered to pay $7,000 in interim monthly child support. On March 5, 2005, the court adopted the hearing officer’s recommendation:

[W]ithout any prejudice whatsoever to the rights of the parties, concerning the ultimate amount of child support, Christian Vaccari shall pay cash child support in the amount of $7,000 per month, retroactive to the date that the Court’s Hearing Officer made the written recommendation for the child support in the amount of $7,000 per month.

Discovery in this case was contentious, as each party accused the other of withholding relevant financial information including tax returns and corporate records. Most notably, Ms. Vaccari accused Mr. Vaccari of hiding large amounts of income from the closely held companies he owned and controlled. At a hearing on the interim child support award held on May 22 and 23, 2006, the court discovered Mr. Vaccari’s 2004 net income was far higher than previously believed — over $3.5 million, according to an expert accountant retained by Ms. Vaccari. During this | .^hearing, the trial court expressed understandable frustration at the parties’ ongoing discovery battles and Mr. Vaccari’s refusal to provide full and complete records. On its own motion, the court appointed Greg Verges, a CPA, as a neutral expert in forensic accounting with access to both the parties’ financial documents and records.

Although the discovery disputes continued, Verges was able to gather enough information by January 26, 2007 to prepare a preliminary report reflecting that Mr. Vaccari’s income and means were significantly higher than had been previously represented. On March 26, 2007, Ms. Vac-cari asked the court to adopt the findings of the Verges report. The court declined:

[T]he oral motion of Ms. Vaccari to adopt the initial report of Gregory Verges, CPA is denied due to the fact the Court has ordered that any final judgment of support shall be retroactive to the original date of filing.

Although Mr. Vaccari immediately appealed this order, the appeal was soon withdrawn by consent of the parties.

Trial was held on July 27, 2007. Based on additional evidence introduced at trial, Verges prepared a final report dated November 30, 2007. The parties filed post-trial briefs, and judgment was entered on October 3, 2008. The court adopted Verges’s recommended child support award of $16,546:

[T]he monthly child support payable by Christian Vaccari to Joan Y. Vaccari shall be $16,546.00, retroactive to the date of filing, namely March 4, 2004. This sum is the amount recommended by Mr. Verges in his final report of November 30, 2007. The payment shall be made in two equal semi-monthly installments on the first and fifteenth days of the month.

Mr. Vaccari filed a motion for new trial, which was denied. On appeal, the judgment was affirmed in part and amended in part. Vaccari v. Vaccari, 2009-1945 (La. App. 1 Cir. 7/29/10), 41 So.3d 662. Although the appeal raised several assignments of error, only one issue — the purported retroactivity of the child support | Judgment — is the subject of the instant writ. The court of appeal, following its prior decision in Moran v. Moran, 02-1562 (La.App. 1 Cir. 6/27/03), 858 So.2d 581, writ denied 03-2124 (La.11/7/03), 857 So.2d 502, held La.Rev.Stat. § 9:315.21 does not permit a trial court to render a final judgment of child support retroactive to the date of judicial demand when there is an interim child support award in effect. We disagree.

DISCUSSION

This Court has long recognized Louisiana’s strong public policy requiring parents to provide for the maintenance and support of their children. For over two hundred years, Louisiana law has provided “Fathers and mothers, by the very act of marrying, contract together the obligation of nourishing, maintaining and educating their children.” Digest of the Civil Laws Now in Force in the Territory of Orleans bk. I, tit. VII, art. 46 (1808). This provision remains substantively unchanged as current Civil Code art. 227, and evidences a “conjoint obligation of both parents ... with each parent contributing in proportion to his or her resources.” Guilliot v. Munn, 99-2132 (La.3/24/00), 756 So.2d 290, 295-96.

It has long been the law that a child support judgment may be rendered retroactively: “retroactivity is intrinsic to the concept of child support under Louisiana’s civilian tradition ... Louisiana law ‘abhors a gap in the support of one in need.’ ” Fink v. Bryant, 01-0987 (La.11/28/01), 801 So.2d 346, 350, quoting Hogan v. Hogan, 549 So.2d 267, 271 (La.1989). Retroactivity in this context “is not in the nature of a penalty, but merely a judicial recognition of pre-existing entitlement. |sOnly practicality postpones the effective date of the obligation to pay child support to the date a court orders that payment.” Id. at 350 (citations omitted).

La.Rev.Stat. § 9:315.21 sets forth when a court may render a child support judgment retroactive:

A. Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
B. (1) A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date.
(2) If an interim child support allowance award is not in effect on the date of the judgment awarding final child support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown, but in no case prior to the date of judicial demand.
C. Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
E. In the event that the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence, but in no case shall this date be a date prior to the date of judicial demand.

We begin our analysis, as always, with a close reading of the statute itself. Subsection B, which is most directly relevant to our discussion, treats a final award of support differently depending on whether there is an interim award in effect when the final judgment is signed. If there is no interim award in effect, § 9:315.21(B)(2) requires a final award to be made retroactive to the date of judicial demand.

We are more concerned with § 9:315.21(B)(1), which controls where, as here, an interim award is in effect when the final judgment is signed. Subsection B(l) Estates a final judgment “is effective as of the date the judgment is signed” and it “terminates an interim child support allowance as of that date.” This clearly explains the rule going forward from the date the judgment is signed — the interim award will no longer be in effect, the final judgment will be. However, it does not directly address the retroactive effect, if any, of such a judgment. This is an apparent lacuna in the statute — although the statute does not expressly permit a court to render such a final judgment retroactive, neither does it expressly forbid it.

The answer lies in § 9:315.21(0, which provides an order “modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand.” If an order modifying a final support judgment may be made retroactive, a fortior-wri, the judgment itself may be made retroactive. This point is made clear in a hypothetical situation where a trial court awards $800 in monthly interim child support. The court later enters a final support judgment in the amount of $1,000 per month, effective the date the final judgment is signed. According to Mr. Vaccari, this judgment cannot be made retroactive to the date of judicial demand. However, if the very next day the court discovers a mathematical error and enters a modified judgment in the amount of $1,001 per month, the statute expressly provides the newly modified judgment shall be retroactive to the date of judicial demand unless there is good cause to do otherwise. This would be an absurd result.

Similarly, La.Rev.Stat. § 9:315.21(B)(2) states where an “interim child support allowance award is not in effect on the date of the judgment awarding final child support,” the final award shall be retroactive. A trial court could render the final judgment retroactive simply by cancelling the interim award one day before signing the final judgment, so an interim award is not “in effect on the date” the final judgment is signed. We cannot presume that the Legislature intended to countenance 17these kinds of judicial parlor tricks.

We therefore hold, upon a showing of good cause, a trial court may order a final child support award retroactive to the date of judicial demand even though there has been an interim award in effect. Any cases holding the contrary are hereby overruled.

This holding is in accord with the stated policy goals of Louisiana’s child support statutes and affirms long held civilian concepts regarding the ongoing nature of the child support obligation. This obligation is not suddenly imposed on Mr. Vaccari on the date the judgment is signed. It is a judicial recognition of his already-existing obligation to support his children in accordance with his true income.

While ultimately guided by the legislation, we are also persuaded by the equities of this case. Mr. Vaccari made numerous attempts to hide the significant amount of wealth he controlled via the closely held companies he owns — as the trial court somewhat drily noted in his written reasons for judgment, “the extent of [Mr. Vaccari’s] holdings was greatly understated.” It was only long after the initial interim award that the full extent of Mr. Vaccari’s means became known via Mr. Verges’s report. Through his own obfuscatory tactics, Mr. Vaccari was able to temporarily | Smislead the trial court into believing his means were far lower than they actually were. As a result, he avoided paying over $500,000 in rightly owed child support. Once the court recognized the true extent of Mr. Vaccari’s wealth, it correctly ordered him to pay the full amount, including arrearages, thus treating him the same as if he had been truthful all along.

Ms. Vaccari correctly notes the Court of Appeal opinion creates a perverse incentive for parties in divorce proceedings to falsely report their income and means in hope of paying as little as possible in interim support. Indeed, if Mr. Vaccari had been open and truthful from the beginning, it is certain the original interim support award would have been significantly higher. It is not this Court’s policy to reward parties for misrepresenting material facts.

CONCLUSION

Wherefore, for the above-stated reasons, the judgment of the Court of Appeal is reversed in part. The portion of the trial court’s judgment dated October 3, 2008 rendering the final child support award retroactive to the date of judicial demand is hereby reinstated.

REVERSED IN PART AND REMANDED TO DISTRICT COURT.

      . The court also ordered Mr. Vaccari to pay the costs of the children’s health and dental insurance, school tuition and fees, and various other expenses. These ancillary expenses are not in dispute.

        . “Les pére et mere, par le seul fait du manage, contractent ensemble l’obligation de nourrir, entretenir, et élever leurs enfans.” A narrower obligation was imposed with respect to children born out of wedlock: "Fathers and mothers owe alimony to their natural children, when they are in need.” Digest of the Civil Laws Now in Force in the Territoiy of Orleans bk. I, tit. VII, art. 61 (1808).

      . See, e.g., Moran v. Moran, 2002-1562 (La. App. 1 Cir. 6/27/03), 858 So.2d 581, writ denied 2003-2124 (La.l 1/7/03), 857 So.2d 502; Martin v. Martin, 1998-165 (La.App. 3 Cir. 6/3/98), 716 So.2d 46; Pellerin v. Pellerin, 97-2085 (La.App. 4 Cir. 6/17/98), 715 So.2d 617, writ denied, 98-1940 (La.10/30/98) 727 So.2d 1167; Bergeron v. Bergeron, 44,210 (La.App. 2 Cir. 3/18/09), 6 So.3d 948; Garcia v. Rodriguez, 2002-0439 (La.App. 4 Cir. 11/29/03), 839 So.2d 368.

      . "Accordingly, a utopian court, following the code and Planiol literally, would decree that any modification in the alimony award shall take effect as of the precise moment of the consequential change in the parties' situation." Hogan v. Hogan, 549 So.2d 267, 273 (La.1989), citing 1 M. Planiol, Civil Law Treatise, pt. 1 § 682.

      . This Court is aware of the seemingly metaphysical distinction Mr. Vaccari’s counsel attempts to draw between his personal income and the wealth he enjoyed through these closely held businesses. It is apparent neither Mr. Verges nor the trial court found this distinction meaningful in determining the final child support award. Neither do we.

      . This is not to fully excuse the actions of Ms. Vaccari and her counsel. A review of the record before us reveals both parties contributed to unnecessary delay by filing every possible pleading and motion, propounding waves of often trivial and onerous discovery requests (e.g., requests for detailed records regarding "the cost of each bottle of wine and the place of purchase”), raising every possible objection to every discovery request, and generally preventing quick and efficient resolution of the case. The transcripts reflect the district court judge’s understandable frustration with repeated continuances and the parties’ apparent unwillingness to resolve their issues without judicial micromanagement.


text:
    Mark ALLERTON v. Leslie BROUSSARD, et al.
    No. 2010-C-2071.
    Supreme Court of Louisiana.
    Dec. 10, 2010.
   PER CURIAM.

| finding the court of appeal erred in reversing the trial court judgment rendered in favor of the plaintiff, Mark Aller-ton, we grant this writ to reverse that decision, reinstate the trial court judgment, and remand the case to the trial court for any further proceedings.

Mark Allerton filed suit against Leslie Broussard, the driver of a 1992 Ford Explorer that struck him on October 25, 2005. The vehicle driven by Broussard crossed two lanes of traffic and entered a parking lot on Jefferson Highway, in Jefferson Parish, where Allerton was standing. The Explorer was registered to James Edwards, a Texas resident, and insured by Mercury County Mutual Insurance Co. (Mercury). The driver left the scene after the accident, prompting an investigation by Trooper Alan Rickmeyer with the Louisiana State Police.

Trooper Rickmeyer testified that when he initially contacted Edwards following the accident, Edwards told him he owned the vehicle and that he had allowed his son, Aaron, to use it. Aaron Edwards initially told Trooper Rickmeyer that he was, in fact, using his father’s vehicle but had placed it in the possession of Richard Broussard for repairs. Richard Broussard is the husband of Leslie Broussard.

12Trooper Rickmeyer then contacted Richard Broussard, who confirmed that he was repairing the vehicle and stated that he periodically loaned it to his wife for her to use. Trooper Rickmeyer demanded to see the vehicle. In response to this request, Aaron Edwards went to the Brous-sard’s home, retrieved the Explorer, and drove it to the police station.

Trooper Rickmeyer was never told that the Explorer belonged to anyone other than James Edwards. However, the Ed-wardses and Broussards later changed their stories and alleged that Aaron Edwards, with the permission of his parents, had sold the vehicle to Richard Broussard five days before the accident.

Allerton and Mercury filed cross motions for summary judgment against each other. Both summary judgment motions turned on the question of whether there was a sale of the insured vehicle prior to the accident.

The trial court denied both motions and conducted a trial during which Aaron Edwards stated that he had sold the vehicle to Richard Broussard on October 20, 2005, five days before the accident, for $1,000 in cash. This version of events was supported to some degree by the deposition testimony of Aaron Edwards’ mother, which was introduced at trial, and bank records, which showed a $1,200 cash deposit into Aaron Edwards’ partner’s bank account after the alleged sale date. The contrary version of events referred to above was also presented at trial.

The trial court rendered judgment in favor of Allerton, against Mercury and awarded him $20,000 in damages. The court of appeal reversed, first finding that the question of whether there was a sale of the vehicle prior to the accident was strictly a legal question, not subject to the manifest error standard of review. Applying the de novo standard of review, the court of appeal concluded that Aaron Edwards sold the Explorer to Richard Broussard days before the accident. Accordingly, the court |sof appeal held that the Edwardses and Mercury were not liable to Allerton for his injuries. After careful study, we find the court of appeal did not afford due deference to the factual and credibility determinations of the trial court.

The trial court rendered judgment in favor of Allerton in a case in which factual issues were disputed and the credibility of witnesses was at issue. Resolution of the case turned on whether a valid sale of the vehicle took place prior to the accident. The Edwardses and Broussards told one version of the facts to Trooper Rickmeyer following the accident, and a very different one in Ms. Edwards’ deposition and at trial.

A court of appeal may not set aside a trial court’s findings of fact in the absence of manifest error or unless they are clearly wrong. Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Bonin v. Ferrellgas, 03-3024, p. 6-7 (La.7/2/04), 877 So.2d 89, 94-95; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart, Id.

Considering the conflict in the testimony in this case, and the credibility determinations necessary to its resolution, it is clear that if the court of appeal had correctly applied the manifest error standard of review, it would have found the record evidenced a reasonable factual basis supporting the trial court judgment in favor of Allerton. In other words, there is no showing that the trial court judgment was manifestly erroneous or clearly wrong.

UThe court of appeal incorrectly viewed the issue before it as a strictly legal question. It appears this conclusion was based upon a comment by the trial judge regarding vehicle registration. However, it is well settled that “the trial court’s oral or written reasons form no part of the judgment.” Burmaster v. Plaquemines Parish Government, 07-1311, p. 1-2 (La.8/31/07), 963 So.2d 378, 379. The judgment in this case clearly contemplates the factual and credibility determinations implicit in the result, and the record supports those findings.

Judgment was rendered by the trial court in favor of plaintiff for $20,000. We find the court of appeal erred in reviewing the case de novo and reversing the trial court judgment.

DECREE

Accordingly, the decision of the court of appeal is reversed. The judgment of the trial court is reinstated, and the case is remanded to the trial court for any further proceedings.

WRIT GRANTED; COURT OF APPEAL JUDGMENT REVERSED, TRIAL COURT JUDGMENT REINSTATED, AND CASE REMANDED.

       Chief Justice Kimball did not participate in this decision.


text:
    STATE of Louisiana v. Lance WOODWARD.
    No. 2009-KH-2396.
    Supreme Court of Louisiana.
    Dec. 10, 2010.
   PER CURIAM.

Writ granted in part; otherwise denied. The record shows that the contempt adjudication did not comply with La.C.Cr.P. art. 22, which provides: “A person who has committed a direct contempt of court may be found guilty and punished therefor by the court without any trial, after affording him an opportunity to be heard orally by way of defense or mitigation.” See also In re Judge Sassone, 2007-0651 (La.6/29/07), 959 So.2d 859; State v. Williams, 97-1135 (La.App. 5th Cir.5/27/98), 714 So.2d 258. Here, relator was not afforded an opportunity to be heard orally by way of defense or mitigation. Therefore, the finding of direct contempt is reversed, and relator’s sentence of six months imprisonment for contempt is vacated. Relator’s request for a stay is rendered moot.

VICTORY and CLARK, JJ., would deny.

      . Kimball, C.J., not participating.


text:
    STATE of Louisiana v. Lance WOODWARD.
    No. 2009-KH-2498.
    Supreme Court of Louisiana.
    Dec. 10, 2010.
   PER CURIAM.

Writ granted in part; otherwise denied. The record shows that the contempt adjudication did not comply with La.C.Cr.P. art. 22, which provides: “A person who has committed a direct contempt of court may be found guilty and punished therefor by the court without any trial, after affording him an opportunity to be heard orally by way of defense or mitigation.” See also In re Judge Sassone, 2007-0651 (La.6/29/07), 959 So.2d 859; State v. Williams, 97-1135 (La.App. 5th Cir.5/27/98), 714 So.2d 258. Here, relator was not afforded an opportunity to be heard orally by way of defense or mitigation. Therefore, the finding of direct contempt is reversed, and relator’s sentence of six months imprisonment for contempt is vacated. Relator’s request for a stay is rendered moot.

VICTORY and CLARK, JJ., would deny.

      . Kimball, C.J., not participating.


text:
    STATE of Louisiana v. John W. WEST.
    No. 2009-KH-2810.
    Supreme Court of Louisiana.
    Dec. 10, 2010.
   PER CURIAM.

[ jWrit granted; relief denied. The court of appeal erred to the extent that it implied that relator’s claim of ineffective assistance of counsel was waived as a “non-jurisdictional defect” by entering guilty pleas to the charged crimes. Established jurisprudence of this Court provides that the Sixth and Fourteenth Amendments and La. Const, art. I, § 2 and § 13 protect a defendant pleading guilty. “When a defendant enters a counseled plea of guilty, this court will review the quality of counsel’s representation in deciding whether the plea should be set aside.” State v. Beatty, 391 So.2d 828, 831 (La.1980); see also State ex rel. Scott v. State, 93-0401 (La.3/16/95), 651 So.2d 1344. The two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to challenges of guilty pleas based on claims of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); State v. Washington, 491 So.2d 1337, 1339 (La.1986).

• Nonetheless, a review of the transcripts of the guilty plea, sentencing and the evi-dentiary hearing on relator’s post-conviction application reveals that relator has failed to establish either (1) that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; or (2) that counsel’s inadequate performance prejudiced relator to the extent that the proceedings were rendered unfair and the convictions suspect. Accordingly, the district court’s ruling denying relief is upheld.

      . Kimball, CJ, not participating.


text:
    In re Dennis F. NALICK.
    No. 2010-B-2134.
    Supreme Court of Louisiana.
    Dec. 10, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel (“ODC”) has filed a petition seeking the imposition of reciprocal discipline against respondent, Dennis F. Nalick, an attorney licensed to practice law in the States of Louisiana, Missouri, and Illinois, based upon an interim suspension imposed by the Supreme Court of Illinois.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On July 21, 2010, the Supreme Court of Illinois issued an order immediately suspending respondent’s license to practice law pending a final determination of disciplinary proceedings against him. In its order, the Illinois court concluded that respondent had engaged in professional misconduct demonstrating that he poses a significant threat of harm to the public, based upon evidence that respondent had recently misappropriated client funds in connection with an succession matter.

After receiving notice of the order of interim suspension, the ODC filed a petition to initiate reciprocal discipline in Louisiana, pursuant to Supreme Court Rule XIX, § 21. A certified copy of the decision and order of the Supreme Court of the State of Illinois was attached to the motion. On September 22, 2010, this court rendered an order giving respondent thirty days to demonstrate why the imposition | gof identical discipline in this state would be unwarranted. Respondent failed to file any response in this court.

DISCUSSION

Based upon evidence that respondent converted client funds in a succession matter, the Supreme Court of Illinois has suspended him from the practice of law in that state pending further proceedings. The imposition of identical discipline in Louisiana is clearly appropriate, and there is no suggestion otherwise upon the face of the record. Accordingly, we will impose the same discipline against respondent as was imposed in Illinois.

DECREE

Considering the Petition to Initiate Reciprocal Discipline Proceedings filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Dennis F. Nalick, Louisiana Bar Roll number 14259, be and he hereby is suspended from the practice of law on an interim basis, pending further orders of this court.

       Chief Justice Kimball not participating in the opinion.


text:
    In re The MARRIAGE OF Erin Blanch and Juan S. BLANCH, Jr.
    No. 2010-CJ-2725.
    Supreme Court of Louisiana.
    Dec. 15, 2010.
   PER CURIAM.

| Relator, Juan S. Blanch, Jr., filed a rule for contempt in the trial court, alleging his former spouse violated certain visitation provisions in a custody judgment. The trial court continued the rule for contempt indefinitely on the ground the custody judgment was pending on appeal.

Upon relator’s application, the court of appeal granted the writ but denied relief. Citing La.Code Civ. P. articles 2088 and 3943, the court determined the “trial court erred by continuing the hearing on the basis that the taking of the appeal had divested the court of jurisdiction to hear the Rule for Contempt.” The court of appeal then proceeded to review the rule for contempt on the merits, and concluded “Relator’s allegations in the Rule, even if true, would not support a finding of Contempt against the Respondent.”

We see no error in the court of appeal’s judgment insofar as it finds the trial court is not divested of jurisdiction to consider the rule for contempt pending the appeal. However, we find the court of appeal erred in reaching the merits of the rule for contempt. Because no hearing on the rule for contempt has occurred, the appellate court should not have commented on the merits, if any, of this rule. Instead, the appellate court should have simply reversed the trial court’s ruling indefinitely continuing the rule, and remanded the matter to the trial court for further proceedings. Therefore, we grant relator’s writ application for the sole purpose of clarifying that the merits of the rule for contempt are to be determined on remand in the trial court. 12The appellate court’s comments on this issue are purely obiter dicta, and are not binding on the trial court. See Boyd v. Wackenhut Corp., 08-1388 (La.10/24/08), 993 So.2d 216.

       Chief Justice Kimball not participating in this ópinion.


author: PER CURIAM. GUIDRY, J.,

text:
    In re Daniel James STANFORD.
    No. 2010-B-1547.
    Supreme Court of Louisiana.
    Dec. 17, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

tin this matter, the Office of Disciplinary Counsel (“ODC”) appeals a decision of the disciplinary board ordering that respondent, Daniel James Stanford, be publicly reprimanded.

UNDERLYING FACTS

In March 1995, Reginald Milstead retained respondent to handle a personal injury claim. In May 1995, Mr. Milstead hired respondent to represent him in a criminal matter for a $5,000 fee. Mr. Milstead signed a document entitled “Authorization to Sign on Behalf of Client” (“Authorization”), which gave respondent permission to sign Mr. Milstead’s name on any settlement checks and releases in the personal injury matter.

In June 1995, respondent settled Mr. Milstead’s personal injury claim for $4,907 without first discussing the settlement with Mr. Milstead, who was incarcerated at the time. Pursuant to the Authorization, respondent endorsed Mr. Milstead’s name on the settlement check and signed his name on the release.

Instead of depositing the settlement check into a trust account, respondent cashed the check. He kept $1,226 as his attorney’s fee and withheld $770 to pay Dr. Joe Turk, who had treated Mr. Milstead’s injuries. Although the record does not establish the exact date Dr. Turk was paid, in a letter dated September 25, 2008, Dr. LTurk’s office stated, “After reviewing Mr. Milstead’s medical records, it appears we have been paid in full.”

By letter dated August 22, 1995, respondent informed Mr. Milstead that his portion of the settlement funds ($2,911) had been applied to the $5,000 fee for the criminal case. He also informed Mr. Mil-stead that his records reflected an additional $575 in payments toward the criminal case fee, leaving a $1,514 balance. By letter dated December 11, 1995, respondent informed Mr. Milstead that his balance was $1,100 after family members made payments towards the criminal case fee. By May 1996, additional payments towards the criminal case fee resulted in a balance of $330. Respondent received no further payments.

In November 2006, Mr. Milstead filed a disciplinary complaint against respondent, alleging he never received any proceeds from the settlement check. He also alleged respondent misled him about the status of his personal injury claim and “forged” his signature on the settlement documents.

DISCIPLINARY PROCEEDINGS

In August 2008, the ODC filed one count of formal charges against respondent, alleging his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.4 (failure to communicate with a client), 1.15 (safekeeping property of clients or third persons), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Respondent answered the formal charges, denying any misconduct. The matter then proceeded to a formal hearing on the merits.

laHearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee made the following factual findings:

1. Any evidentiary issues surrounding the authenticity of the Authorization have been resolved in respondent’s favor in light of Mr. Milstead’s testimony at the hearing that the signature on the Authorization is his signature and the expert opinion of a duly qualified forensic document examiner that Mr. Milstead authored the signature on the Authorization.
2. Mr. Milstead and respondent agreed respondent would settle Mr. Mil-stead’s personal injury claim, sign Mr. Milstead’s name to all pertinent documents, and apply the settlement proceeds, less respondent’s 25% fee and Dr. Turk’s fee, toward the $5,000 criminal case fee.
3. Respondent was only able to locate Mr. Milstead’s legal file after formal charges had been filed against him. Respondent’s explanation of the delay in locating Mr. Milstead’s closed legal file is credible.
4. In endorsing the settlement check and release, respondent sincerely believed he was acting appropriately, pursuant to the agreement with Mr. Milstead and with legal authorization. Respondent’s failure to obtain an appropriate power of attorney can be attributed to inexperience.
5. Respondent did not knowingly deceive Mr. Milstead concerning the settlement and handling of the settlement funds or otherwise engage in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rules 8.4(b) and 8.4(c).
6. Respondent negligently handled Mr. Milstead’s property by failing to properly deposit the settlement check in a trust account and failing to render an appropriate accounting of the disbursement of the settlement funds to Mr. Milstead. Nonetheless, respondent has, through documentary and testimonial evidence, overcome any legal presumption that he misappropriated or knowingly converted client funds.
7. There is clear and convincing evidence that respondent violated Rules 1.4 and 1.15, but the violations were negligent, as opposed to knowing or intentional.
[48. Mr. Milstead suffered only de min-imis harm, if any, as a result of respondent’s misconduct.

Based on these facts, the committee determined respondent failed to properly communicate with his client and failed to appropriately manage and safeguard client funds. Respondent’s conduct violated his legal and ethical obligations. However, his conduct lacked any dishonest motive and caused no direct harm to his client. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is a public reprimand.

The only aggravating factor the committee found was vulnerability of the victim. In mitigation, the committee found the following factors: absence of a prior disciplinary record, absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and inexperience in the practice of law (admitted 1993).

Under these circumstances, the committee recommended respondent be publicly reprimanded.

The ODC filed an objection to the hearing committee’s report and recommendation, arguing the committee erred in concluding respondent did not convert funds and did not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. The ODC suggested a suspension ranging from one year and one day to three years is appropriate for respondent’s misconduct.

In his brief to the disciplinary board, respondent asserted, for the first time, the affirmative defense of liberative prescription pursuant to Supreme Court Rule XIX, § 31, because his conduct was negligent and occurred more than ten years before Mr. Milstead filed his disciplinary complaint. Accordingly, he urged the board to dismiss the formal charges as having prescribed.

1 -Jtuling of the Disciplinary Board

Before addressing the merits, the disciplinary board addressed respondent’s li-berative prescription defense, concluding the plain language of Supreme Court Rule XIX, § 31 suggests the prescriptive period applies only where the complaint shows on its face that the misconduct occurred because of negligence. Because Mr. Mil-stead’s complaint alleged various acts of intentional misconduct, the board determined Rule XIX, § 31 does not apply.

Turning to the merits, the board adopted the hearing committee’s findings that Mr. Milstead agreed his settlement funds would be applied to the criminal case fee and that respondent did apply Mr. Milstead’s share of the settlement to the criminal case fee. However, respondent admittedly never obtained Mr. Milstead’s consent to settle the civil case. Accordingly, the board rejected the committee’s determination that respondent acted negligently in failing to communicate with Mr. Milstead, and instead, determined respondent acted intentionally in violating Rule 1.4. It further agreed with the committee’s determination that respondent violated Rule 1.15 by his admitted failure to deposit funds owed to Dr. Turk into a trust account.

The board further determined that, by failing to properly communicate with Mr. Milstead and failing to deposit funds owed to a third-party medical provider in a trust account, respondent violated duties owed to his client and the public. His failure to communicate was intentional and created a potential for harm to his client. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is a public reprimand.

The board agreed with the committee that the aggravating factor of vulnerability of the victim is present. Additionally, the board found respondent’s refusal to acknowledge the wrongful nature of the conduct is an aggravating factor, bln mitigation, the board found the absence of a prior disciplinary record and inexperience in the practice of law.

In light of respondent’s inexperience in the practice of law at the time of the misconduct, and after considering this court’s prior jurisprudence involving similar misconduct, a majority of the board ordered that respondent be publicly reprimanded. Three board members dissented, finding a public reprimand is too lenient.

As previously noted, the ODC sought review by this court of the public reprimand. We ordered the parties to submit written briefs addressing the issue of whether the record filed herein supports the board’s report. Both respondent and the ODC submitted briefs in response to the order. In his brief, respondent objected to the board’s finding that he engaged in intentional misconduct and to the aggravating and mitigating factors found by the board. He also reurged his prescription defense.

DISCUSSION

As a threshold matter, we must first address respondent’s assertion that the charges against him are prescribed pursuant to the provisions of Supreme Court Rule XIX, § 31, which provides:

A disciplinary complaint, or the initiation of a disciplinary investigation with regard to allegations of attorney misconduct, where the mental element is merely negligence, shall be subject to a prescriptive period of ten years from the date of the alleged offense.

For this rule to apply, two elements must be established: (1) ten years must have passed since the offense; and (2) the lawyer’s mental state must have been negligent. In the instant case, the temporal element is clearly satisfied because the complaint against respondent was lodged in 2006, more than ten years from the date the underlying conduct occurred in 1995. Nevertheless, the disciplinary board held |7that the second element could not be satisfied because the prescriptive period only applies where the complaint shows on its face that the misconduct is attributable to negligence.

We disagree. If prescription is determined solely from the allegations of the complaint, a respondent would be precluded from raising prescription even though the record developed at a hearing establishes a negligent state of mind. We construe Supreme Court Rule XIX, § 31 as follows: a respondent may raise the prescription issue if the complaint or investigation involves conduct which took place more than ten years ago. At the hearing before the hearing committee, the committee shall make a factual finding whether the conduct was negligent in nature. The hearing committee’s finding in this regard is subject to review by the disciplinary board and by this court.

Turning to the record in the instant case, we conclude the hearing committee was not clearly wrong in finding respondent’s state of mind was negligent. The record establishes that in endorsing the settlement check and release, respondent sincerely believed he was acting appropriately, pursuant to the agreement with Mr. Milstead and with legal authorization. While respondent should have obtained an appropriate power of attorney, his failure to do so was a product of his inexperience and negligent in nature. Similarly, the record supports the conclusion that respondent’s failure to properly deposit the settlement check and to render an appropriate accounting of the disbursement of the settlement funds to Mr. Milstead was not prompted by any dishonest motive and was negligent in nature.

Having found the underlying conduct occurred more than ten years ago and the respondent’s mental state was negligent, we conclude the matter is prescribed | ¿pursuant to Supreme Court rule XIX, § 31. Accordingly, pretermitting the merits, we now dismiss the formal charges as prescribed.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs of the parties, it is ordered that the formal charges against respondent, Daniel James Stanford, be and hereby are dismissed pursuant to Supreme Court Rule XIX, § 31.

KIMBALL, C.J., dissented and would grant and docket this matter.

JOHNSON, J., dissented.

GUIDRY, J., dissented and assigned reasons.

GUIDRY, J.,

dissents.

|,I do not agree that respondent’s misconduct is prescribed and that the formal charges should be dismissed. Rather, I would reject respondent’s prescription defense and impose a public reprimand.

Accordingly, I respectfully dissent.

      . Respondent testified his secretary stored the file, along with other client files, in the attic of his house/office without his knowledge. Years later, in preparing to sell the house, respondent discovered the file in the attic.


text:
    STATE of Louisiana v. Marvin ROBINSON.
    No. 2010-K-0924.
    Supreme Court of Louisiana.
    Dec. 17, 2010.
   PER CURIAM.

GRANTED. The judgment of the court of appeal vacating the defendant’s conviction, habitual offender adjudication, and sentence is reversed. The State concedes the trial court failed to determine whether the defendant was competent to proceed prior to commencing jury trial; however, the State contends the matter should be remanded to the trial court for a determination of whether a nunc pro tunc finding of competency remains possible. We agree. Per State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 882, we remand the matter to the trial court to determine whether a meaningful inquiry can be had regarding defendant’s competency. If it is found that a meaningful retrospective competency hearing is possible, we order the hearing to be conducted and the issue to be determined.

JOHNSON, J., would deny the writ application.

       Chief Justice Catherine D. Kimball not participating.


text:
    In re Robert C. BASINGER.
    No. 2010-OB-2355.
    Supreme Court of Louisiana.
    Dec. 17, 2010.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

| petitioner, Robert C. Basinger, sat for the February 2010 Louisiana bar examination. By letter dated February 17, 2010, the Committee on Bar Admissions (“Committee”) advised petitioner that it could not certify his character and fitness to this court, citing issues relating to his diagnosed alcohol dependency. Petitioner then applied to this court. We denied the application as premature, but provided “[u]pon satisfactorily passing the bar examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, § 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.” In re: Basinger, 10-0627 (La.5/4/10), 33 So.3d 893. Subsequently, petitioner successfully passed the bar examination and now applies to this court for appointment of a commissioner. The Committee opposed the petition, asserting that petitioner has not executed a recovery agreement with the Lawyers Assistance Program (LAP), nor has he demonstrated at least one year of sobriety.

Although our order of May 4, 2010 permitted petitioner to seek the appointment of a commissioner, we find no useful purpose would be served by appointing a commissioner under the facts of this case. Our jurisprudence holds that an applicant suffering from alcohol dependence will not be considered for admission [2until he or she has entered into a recovery contract with LAP and can demonstrate at least a one-year period of sobriety pursuant to the terms and conditions of that contract. See, e.g., In re: Gulick, 09-0869 (La.5/15/09), 8 So.3d 555 (“[pjursuant to Supreme Court Rule XVII, § 9(D)(13), petitioner may not re-apply for admission until he can demonstrate at least a one-year period of sobriety and compliance with the terms and conditions of his contract with the Lawyers Assistance Program, and in no event less than one year from the date of this judgment”). Because petitioner has not satisfied these requirements, he is not eligible for admission at this time.

Accordingly, it is ordered that the application for admission be and hereby is denied. Pursuant to Supreme Court Rule XVII, § 9(D)(13), petitioner may not reapply for admission until he has executed a recovery contract with LAP and can demonstrate at least a one-year period of sobriety pursuant to the terms and conditions of that contract.

ADMISSION DENIED.

       Chief Justice Kimball not participating in the opinion.


text:
    SUCCESSION OF HARRELL v. ERRIS-OMEGA PLANTATION, et al.
    No. 2010-C-2059.
    Supreme Court of Louisiana.
    Dec. 17, 2010.
   In re Harrell, Simon Succ. of et al.;— Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court, Div. G, No. 222,091; to the Court of Appeal, Third Circuit, No. 10-138.

WRIT GRANTED. The courts have recognized that a judgment may be annulled for fraud and ill practices when (1) the circumstances under which the judgment was rendered show the deprivation of legal rights of the litigant who seeks relief and (2) enforcement of the judgment would be unconscionable or inequitable. Calcasieu Parish School Board v. Parker, 02-0339 (La. App. 3 Cir. 10/2/02), 827 So.2d 543, writ denied, 02-2719 (La.1/10/03), 834 So.2d 440. Plaintiffs’ Petition to Annul, which must be considered on the face of the pleading in ruling on an exception of no cause of action, alleges sufficient facts to assert a cause of action under La. C.C.P. art. 2004 to annul the April 20, 2009, judgment for fraud and ill practices. Not only was the judgment rendered in plaintiffs’ and counsel’s absence, due in part to confusion over a continuance request, but it goes well beyond the initial pleadings by granting relief not prayed for. In addition, the record does not support the defendant’s assertion that a settlement of the claims was reached by the parties. In fact, price was still at issue and the succession representative had not yet obtained court approval. Accordingly, the judgments of the court of appeal and the trial court are reversed, and the case is remanded to the trial court for further proceedings on plaintiffs’ petition to annul the April 20, 2009, judgment of the trial court.

KNOLL and CLARK, JJ., would deny.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Corey ROBINSON.
    No. 2009-KA-0922.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District At-

      torney, New Orleans, LA, for The State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

|tThe defendant, Corey Robinson, appeals his conviction for armed robbery, a violation of La. Rev.Stat. 14:64.3, arguing that the trial court should have granted his motion to suppress the identification because the “show-up” identification procedure was suggestive. After review of the record in light of the applicable law and arguments of the parties, we affirm.

Relevant Facts and Procedural History

In the early morning hours of July 30, 2006, Daniel Chaplain, was carjacked at gunpoint when he stopped at a red light at South Robertson and Poland Avenue. He immediately called 911, his description of the vehicle was quickly disseminated by radio, and within minutes Officer Nathaniel Thomas Joseph of the New Orleans Police Department (NOPD) attempted to pull the vehicle over after spotting it in the vicinity of St. Claude and Franklin. The perpetrators failed to comply and a chase ensued, ending quickly when the vehicle crashed into a corner store at 2622 St. Claude Avenue. The two occupants of the truck jumped out and ran through the backyards, jumping fences, of Port Street and St. Claude Avenue. Officer Joseph’s pursuit was unsuccessful and he returned to the corner of Port Street and St. Claude Avenue.

12Based on the description, however, several National Guardsmen (patrolling the streets in post-Katrina New Orleans) apprehended the defendant near Clouet and North Villere Streets and brought him to Port Street and St. Claude Avenue where both the victim and Officer Joseph identified him.

On August 30, 2006, the defendant was charged by bill of information with one count of armed robbery and, at his arraignment on November 20, 2006, he pleaded not guilty. The defendant filed motions for a preliminary hearing and to suppress the identification but, after a hearing on August 26, 2008, at which Mr. Chaplain and Officer Joseph testified, the trial court found probable cause and denied the motion to suppress. At the end of a two day trial, a jury found the defendant guilty as charged on March 12, 2009. On March 30, 2009, the trial court sentenced the defendant to ten years at hard labor without the benefit of probation, parole or suspension of sentence, to be served consecutively with any other sentences.

In his sole assignment of error on appeal, the defendant argues that the trial court erred in denying his motion to suppress the identification.

Applicable Law

The trial court’s determination of the admissibility of identification evidence is entitled to great weight and will not be disturbed in the absence of an abuse of discretion. State v. Stovall, 2007-0343, p. 17 (La.App. 4 Cir. 2/6/08), 977 So.2d 1074, 1085. Generally, one-on-one identifications, although not favored, are permissible when justified by the circumstances, particularly when the accused is apprehended within a short time after the occurrence and is returned to the crime scene. State v. Woodberry, 95-2402, p. 5 (La.App. 4 Cir. 12/27/96), 686 So.2d 984, 988.

|sThe defendant bears the burden of proof on a motion to suppress an out-of-court identification. State v. Thibo- deaux, 98-1673, p. 20 (La.9/8/99), 750 So.2d 916, 932; La.Code Crim. Proc. art. 703(D). The defendant must first prove that the identification procedure was suggestive. Id. (citing State v. Prudholm, 446 So.2d 729, 738 (La.1984)). An identification procedure is suggestive if, during the procedure, the witness’ attention is unduly focused on the defendant. Thibodeaux, 98-1673, at p. 21, 750 So.2d at 932 (citing State v. Robinson, 386 So.2d 1374, 1377 (La.1980)). In addition to suggestiveness, a defendant must prove that there was a substantial likelihood of mis-identification as a result of the identification procedure. Id. (citing Prudholm, 446 So.2d at 738). Even if an identification procedure is suggestive, the identification may be admissible if there does not exist a “very substantial likelihood of irreparable misidentification.” Id. (quoting Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)). In order to determine whether the identification presents a substantial likelihood of misidentification, courts must look at the totality of circumstances, and consider the following factors: (1) the victim’s opportunity to view the defendant at the time the crime was committed; (2) the degree of attention paid by the victim during the commission of the crime; (3) the accuracy of any prior description; (4) the level of the victim’s certainty displayed at the time of the identification; and (5) the length of time elapsed between the crime and the identification. Manson v. Braithwaite, 432 U.S. at 116, 97 S.Ct. 2243.

Discussion

The following evidence was adduced at the motion hearing.

Detective Nathaniel Thomas Joseph testified that after receiving the description of the perpetrator of a carjacking that occurred at the corner of N. |4 Claiborne and Poland Avenues at approximately 3:50 a.m. on July 30, 2006 (a black male with a black handgun wearing a white t-shirt and short blue jeans driving a grey four door Sierra pickup truck with tinted windows and a purple hitchlight), he saw the vehicle in the area of St. Claude and Franklin Avenues, minutes away from where the carjacking occurred. He broadcast that he had found the vehicle and attempted to pull it over. The driver did not comply. A chase ensued, but the vehicle ran into a corner store at 2622 St. Claude Avenue, half a block away. The two occupants in the vehicle ran away, in the area of Port Street and St. Claude Avenue, jumping the fences of back yards. Officer Joseph chased, focusing on the driver, but was unable to keep up. He also called for backup, which was slowed down by a passing train. Officer Joseph returned to the corner of Port Street and St. Claude Avenue. The victim was taken to the same location, but Officer Joseph did not speak to him.

After the defendant was apprehended by several National Guardsmen near Clouet and N. Villere Streets because he fit “the description,” Officer Joseph _ received a call from the National Guard, describing the detainee as black, with dreadlocks, a white t-shirt, jeans shorts, and bleeding. Officer Joseph identified the apprehended individual (the defendant) as the driver who escaped from the vehicle. He was dirty, sweaty, and bleeding with a laceration, “maybe in his forearm,” for which he received stitches at the hospital. Officer Joseph opined that the laceration may have been a result of jumping fences during the escape.

Officer Joseph also participated in the show-up identification of the defendant by the victim. According to Officer Joseph, when the victim identified the defendant, the defendant was handcuffed and bleeding, a light was shone on him, and he (Officer Joseph) and other police officers were near the defendant. |sOfficer Joseph heard the victim positively identify the defendant as the person who placed a gun on him and stole his vehicle. Because he was a juvenile at the time, the defendant was not questioned at the scene. Officer Joseph identified the defendant in court.

On cross-examination, Officer Joseph could not recall if the street lights in the area behind St. Claude were working at the time. However, he recalled that there was enough light to see the driver exit the vehicle.

The victim, Mr. Chaplain, testified that at approximately 3:50 a.m. on July 30, 1006, he was driving to meet a friend in St. Bernard Parish to go fishing, His windows were down and he stopped at a red light at South Robertson and Poland Avenue. As he waited, someone approached, put a gun to his head, and demanded, “Put it in park. Don’t say a word. Get out. I’m gonna blow your f_ing head off.” Another “guy” was standing on the other side of the vehicle. When Mr. Chaplin got out, the assailant demanded that he run but, because he was unable to run, he walked over to the curb. The two assailants got in the truck and drove away.

Mr. Chaplain testified that when he exited his vehicle, he was able to clearly see the face of his assailant. Although the area was dark, there was a street light on at the corner, his truck had a light that came on when he opened the door, and the truck’s headlights were on. Mr. Chaplin stated, “I have lights all around, it was a new truck.”

Mr. Chaplain called 911 and described his truck as a silver 2002 Sierra GMC, with a Harley Davidson gas cap and “a lot of chrome.” Shortly thereafter, a policeman arrived and informed him that his vehicle had already been recovered. The policeman also informed him that one of the two assailants had been captured, while the other one got away. Mr. Chaplain was taken to the location where his |fitruck had crashed into the building. He was advised that the suspect that had been captured and would be presented on the neutral ground for him to identify. He was driven over in a police car, and there were approximately twenty police officers and many National Guardsmen present. A light was “put on” the captured individual, and Mr. Chaplain recognized him as his assailant, stating, “That’s definitely him. That’s the one who had the gun to my head.” According to Mr. Chaplain, the lighting during the identification was good because the defendant was illuminated by police lights shone directly on him. Mr. Chaplain estimated that the identification occurred some twenty to twenty-five minutes after the robbery.

On cross-examination, Mr. Chaplain conceded that he was “very shaken up” from the robbery, that he takes “nerve pills” and gets “pretty doggone scared” now when he goes to “the city.” He insisted, however, that the crime scene was well lit, noting that in addition to the stop lights, there was light by a post office. Moreover, according to Mr. Chaplain, when he pulled up to the intersection, he saw the defendant sitting on the porch of a house to the left of him. Mr. Chaplain turned, and when he turned back, the defendant was gone and, “Next thing I know, I had a gun on my head.”

Mr. Chaplain conceded that when he called 911, he told the operator that he was at the corner of St. Claude and Poland although he was actually at North Robertson and Poland. He explained that he was nervous at the time, that he also began giving the operator his home phone number before correcting himself and giving his cell number, and that he also had trouble recalling the model of his truck.

| ^Although the perpetrator was wearing a white shirt and blue pants at the time of the robbery, the defendant was shirtless at the time Mr. Chaplain identified him at the crash scene. According to Mr. Chaplain, he knew, “they pulled it off’ because the defendant had cut his arm. When asked by the court what he recognized about Robinson at the show up identification, Mr. Chaplain explained:

Well, his face. I mean he was shaking like this and he was looking dead at me. And he put the gun to my head. And he was from her to — I mean he was so close, he was closer than that. I know his eyes and his face.

The following evidence was adduced at trial. Officer Melvin Labeaud testified that he responded to a carjacking call at the intersection of Poland Avenue and North Robertson Street at approximately 3:52 a.m. on July 30, 2006. When he arrived at the scene, he met the victim, Mr. Chaplain, who provided a description of his assailant. As Officer Lebeaud was interviewing Mr. Chaplain, Officer Joseph saw and began pursuing Mr. Chaplain’s vehicle. Officer Lebeaud informed Mr. Chaplain that his vehicle may have been recovered and that the perpetrator may have been apprehended. Officer Lebeaud then took Mr. Chaplain to the location where his vehicle had been recovered and Mr. Chaplain identified the perpetrator at that time. According to Officer Lebeaud, Mr. Chaplain described the perpetrator as twenty-one to twenty-two years old, weighing approximately 140 pounds and being five feet and three inches tall.

Officer Joseph testified, reiterating his hearing testimony and adding that after receiving the call about the carjacking he saw the described vehicle in the area of St. Claude and Franklin Avenues and pursued it. The chase lasted less than a block before the perpetrators crashed the truck into a grocery store at Port Street and St. Claude Avenue. As they got out of the vehicle, Officer Joseph focused on |sthe driver, chasing him. He saw his face, his clothing, his hair, “everything about him.” The scene was illuminated by Officer Joseph’s car lights. As the driver fled, he escaped into “like a backyard area with several fences.” Officer Joseph saw him hit a fence and believed he cut his arm on that fence. Officer Joseph recalled hearing the driver yell, “Ouch!” before he got away.

During the chase, Officer Joseph called for backup over the radio, but help was deterred by a passing train. Officer Joseph learned that someone had been detained and went to the corner of Clouet and Villere Streets where he immediately recognized the detainee as the driver of the stolen vehicle, the defendant. Officer Joseph then took the defendant back to the crashed vehicle. Mr. Chaplain was taken to the same location by Officer La-beaud. The defendant was placed on the neutral ground and Mr. Chaplain identified him from Officer Lebaud’s vehicle. The defendant was sweaty and dirty at this point. His right forearm was bleeding, for which he received treatment. A light was shone on him.

Pictures of the crashed truck showed the keys in the ignition, which is consistent with a carjacking. When the defendant was apprehended, no weapon was found on him. No weapon was ever recovered.

Officer Herman Franklin testified at trial that when he arrived at the crime scene at Poland and North Caiborne Avenues on July 30, 2006, Officer Lebeaud was interviewing Mr. Chaplain. He then received the call that Officer Joseph was pursuing the stolen vehicle and left the crime scene and proceeded toward the chase. The truck crashed into the store while Officer Franklin was en route. When he arrived at Port Street and St. Claude Avenue, Officer Joseph was chasing the suspects. Officer Franklin remained with the truck and Mr. Chaplain and the defendant were subsequently brought to the crash scene. Based upon Mr, | ^Chaplain’s assertion that he could identify the carjacker and after consultation with Officer Joseph, Officer Franklin placed Mr. Chaplain inside his vehicle and told him that “the subject” would be placed on the neutral ground, some fifteen or twenty feet away, and a spotlight from a police car would be shown on the individual. The defendant was then removed from Officer Joseph’s car and taken to the neutral ground. Officer Franklin advised Mr. Chaplain that, “he would be coming out and we would have the spotlight on him, just take his time and look at him.” Mr. Chaplain identified the subject has the carjacker. Officer Franklin asked Mr. Chaplain if he was certain and his response was affirmative. Officer Franklin testified that the defendant was dirty, sweaty, and handcuffed during this procedure. After Mr. Chaplain positively identified him, the defendant was placed back in the police ear.

Mr. Chaplain also testified at trial, stating that when he stopped at a red light at the corner of N. Robertson and Poland Avenue at approximately 3:50 a.m. on July 30, 2006, he was going to meet his friend, Troy, to go fishing. As he stopped, he noticed a black man sitting on a porch across the street. He focused his attention on his cell phone, trying to call Troy and when he looked back up, the man was gone from the porch and standing by Mr. Chaplain’s truck, demanding that he put the vehicle into park and exit. The assailant was holding a firearm and was “shaking real bad.” He demanded that Mr. Chaplain exit the vehicle and go away. At the point, Mr. Chaplin noticed another man at the passenger side of his truck. Mr. Chaplin exited and walked to a nearby curb. He was afraid of being shot.

The truck drove off, turning right onto Poland Avenue, toward North Rampart or St. Claude Avenue. Mr. Chaplain crossed the street to a post office, |inwhere it was well lit, and called 911. He was so nervous that he initially gave the 911 operator a number that he had before Katrina. However, he corrected himself. Mr. Chaplain also erred in identifying the year of his vehicle. The police responded to the scene quickly — before the 911 call ended. Upon arrival, the officer informed Mr. Chaplain that his truck had been crashed, the two occupants had fled, and one of them had been caught. Mr. Chaplain stated, “I was just happy that, you know, that they caught — well, they said they caught one guy, not two people.”

According to Mr. Chaplain, he called his friend, Troy, who picked him up and took him to the crash scene on St. Claude Avenue. Once there, Mr. Chaplain waited twenty to twenty five minutes before a police officer asked if he thought he could identify the person who stole his track. Mr. Chaplain affirmed that, “I’ll never forget his face.” The officer informed him that one of the assailants had been captured and took Mr. Chaplain to him, approximately a block away. Mr. Chaplain got into a police car to go the block to the lighted area on the neutral ground where the defendant was standing surrounded by police cars and National Guardsmen. As Mr. Chaplain was driven up near the defendant, he assured the police officer driving the police car that the defendant was “definitely him.” Sitting in the front seat of the police car, Mr. Chaplain told the police officer “That’s the guy who stuck the gun up to my head.” When asked if he was sure of the identification, Mr. Chaplin responded, “Definitely.” Mr. Chaplain remained seated in the police car during the entire onsite identification procedure.

Mr. Chaplain positively identified the defendant as his assailant in court, although the defendant no longer had the dreadlocks that he had at the time of the carjacking. Likewise, Mr. Chaplain conceded that the defendant was shirtless when he identified him at the show-up identification, although he described the Inperpetrator as wearing a white t-shirt at the time of the carjacking. Mr. Chaplain did not know what happened to the t-shirt between the time of the carjacking and the show-up identification, but asserted that had the defendant not been his assailant, he would not have identified him as such.

Nicole Heiser, an investigator for the Orleans Public Defender’s Office, testified that during her investigation of this case, she learned that Mr. Chaplain was seeking compensation for damages to his vehicle and for lost work and therefore willing to accept monetary compensation in exchange for not testifying. No such compensation was ever given, however.

Percy Robinson, the defendant’s nineteen-year-old brother, testified that their mother died during Hurricane Katrina, that their father lives in Texas, and since their return to New Orleans in the summer of 2006 the brothers lived with an aunt in the Ninth Ward on Alvar Street. According to Mr. Robinson, his brother received the laceration on his arm during a scuffle with a cousin that occurred shortly before 3:50 a.m. on July 30, 2006.

Analysis

In this case, the defendant was placed, handcuffed and bleeding and surrounded by police and National Guardsmen, in the middle of a neutral ground for the victim to identify. Moreover, shortly before the identification, one of the officers told Mr. Chaplain that the police had apprehended one of the men who robbed him. Under these circumstances, the show up identification was clearly suggestive.

However, a review of the totality of the circumstances in this case does not indicate that there is a substantial likelihood of misidentification. The defendant was apprehended almost immediately. The police arrived at the crime scene at 112Poland and North Robertson before Mr. Chaplain finished speaking to the 911 operator and informed Mr. Chaplain that his truck had been crashed and the driver caught. Mr. Chaplin went to the crash scene on St. Claude Avenue and identified the defendant within twenty to twenty-five minutes after the robbery. See State Ex. Rel. J.N., 2007-1229, 2007-1306 (La.App. 4 Cir. 5/7/08) 984 So.2d 910, (affirming trial court’s admission of a show up identification that occurred within an hour of the commission of the crime). Moreover, Mr. Chaplain was certain of his identification of the defendant as the man who pointed a gun at him. He explained at the hearing that he knew the defendant’s eyes and his face because the defendant had looked “dead at [him]” during the robbery.

Mr. Chaplain’s description of his assailant was consistent throughout the proceedings. At the hearing, he testified that the defendant wore a white shirt and blue pants at the time of the robbery, but that the shirt was gone at the identification. Mr. Chaplain opined that the shirt had been removed due to the defendant’s arm injury. This description is consistent with the description Officer Joseph received from the National Guardsmen when they apprehended the defendant — dreadlocks, white t-shirt, and jeans shorts. At trial, Mr. Chaplain testified that the defendant had dreadlocks and was wearing a white t-shirt at the time of the robbery and again noted that the defendant’s shirt was removed prior to the show up identification.

Mr. Chaplain’s attention was clearly focused on the defendant’s face during the armed robbery. At the hearing, he told the trial judge that the defendant’s face “was so close” to him that he knew “his eyes and his face.” Mr. Chaplain also noted that Robinson was shaking, apparently from fear, and he looked “dead at” him. Mr. Chaplain’s certainty that Robinson was the person who robbed him of 113his truck and his entire testimony of how the robbery occurred, including Robinson’s close proximity to him during the incident, clearly shows Mr. Chaplain’s attention was focused only on the person with a gun to his head during the commission of the crime.

The defendant argues that Mr. Chaplain initially described him as twenty-one or twenty-two years old and 5'3", whereas he was actually sixteen years old and 5'7" at the time of the incident, but this slight discrepancy does not overcome Mr. Chaplain’s certainty of recognizing his face and eyes.

The defendant also argues that it was dark when the crime was committed, thereby hindering Mr. Chaplain’s opportunity to view him during the commission of the crime. However, Mr. Chaplain insisted at the hearing that the crime scene was sufficiently illuminated because there was a streetlight at the corner where the armed robbery occurred, his truck interior light came on when the door opened, and the truck headlights were on. According to Mr. Chaplain, “I have lights all around, it was a new truck.” There was also a lighted post office parking lot across the street. Under these circumstances, it is clear that, despite the lack of general lighting in the Ninth Ward in summer 2006, there was sufficient lighting in the immediate area of the crime scene for Mr. Chaplain to get a good look at the defendant in close proximity during the commission of the armed robbery.

Errors Patent

A review of the record reveals no errors patent.

Conclusion

After review of the record in light of factors enumerated by the U.S. Supreme Court in Manson, we do not find that there was a substantial likelihood of mis-identification and, accordingly, the trial judge did not abuse her vast discretion |14in denying the defendant’s motion to suppress the identification. The defendant’s conviction and sentence are affirmed.

AFFIRMED.