author: FREDERICKS HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Mackenxo SAINT-VIL.
    No. 10-KA-1051.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 25, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Mackenxo Saint-Vil, IPP, Angie, LA, Defendant/Appellant.

      Panel composed of Judges CLARENCE E. McMANUS, FREDERICKS HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKS HOMBERG WICKER, Judge.

|2In this criminal matter, defendant/appellant, Mr. Mackenxo Saint-Vil’s appellate counsel, filed a motion to withdraw with accompanying brief stating that no non-frivolous issues exist which arguably support an appeal. After an independent review of the record, we agree that no non-frivolous issues exist. Therefore, Mr. Saint-Vil’s conviction and sentence are affirmed. The case is remanded to the district court for the correction of an error patent.

Facts and Procedural History

On June 4, 2008, Mr. Saint-Vil was charged by bill of information, in case number 08-2930, with introducing contraband into a penal institution in violation of La. R.S. 14:402. He pled not guilty at the arraignment, but on January 29, 2009, Mr. SainL-Vil withdrew his not guilty plea and tendered a plea of guilty. Pursuant to a plea agreement, he was sentenced to five years imprisonment in the | ^.Department of Corrections. The sentence was to run concurrently with the sentences imposed in case numbers 04-3033 and 04-4735.

On November 8, 2010, Mr. Saint-Vil filed an application for post-conviction relief seeking an out-of-time appeal, alleging that his plea was not knowingly and intelligently made. The trial court granted an out-of-time appeal for case numbers 04-4735 and 08-2930 and appointed the Louisiana Appellate Project to represent Mr. Saint-Vil.

Discussion

Mr. Saint-Vil’s appellate counsel filed a motion to withdraw and brief with this Court stating that, after a conscientious and thorough review of the record, no non-frivolous issues exist to arguably support an appeal. When appointed counsel has filed such a brief, Anders requires that counsel move to withdraw. State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990).

In Anders v. California, 386 U.S. 738, 744 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), the United States Supreme Court stated that appellate counsel may request permission to withdraw if, after a conscientious examination of the record, he finds the case to be wholly frivolous. The request, however, must “be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. This provides 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.” State v. Haynes, 09-109, p. 15-16 (La.App. 5 Cir. 2/9/10), 34 So.3d 325, 335 quoting 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).

An Anders brief need not tediously catalog every meritless objection made at trial or by way of pre-trial motions with a labored explanation of why the objections all lack merit. State v. Jyles, 96-2669, p. 2 (La.12/12/97), 704 So.2d 241. Rather, it must ensure the court that the defendant’s constitutional rights have not been violated. Id. Appellate counsel must demonstrate to the court by full discussion and analysis that he 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.

In this case, we find that appellate counsel has complied with the requirements set forth in Anders. Counsel notes that the record contains no pretrial rulings to review. Appellate counsel also notes that Mr. Saint-Vil was fully informed of the legal consequences of his plea by both his trial counsel and the trial court. She found that the Boykin form and trial court adequately informed Mr. Saint-Vil of the offense he was pleading guilty to, the rights he was relinquishing, and the sentence he would receive.

The State responded noting that appellate counsel’s brief shows a conscientious and thorough review and recitation of the case’s procedural history. The State further agrees that appellate counsel cast an advocate’s eye over the record when she determined there were no significant non-frivolous issues upon which to base an appeal. The State requests this Court to affirm Mr. Saint-Vil’s conviction and sentence.

When an Anders brief is filed, the appellate court must conduct an independent review of the record. Haynes, supra at 335. After a full examination | sof all the proceedings, the appellate court proceeds to determine whether the ease is wholly frivolous. Anders, supra at 744, 87 S.Ct. 1396. If it so finds, it may grant counsel’s motion to withdraw and dismiss the appeal. Id. The motion will not be acted upon, however, until the appellate court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his own behalf. Benjamin, supra at 531.

This Court mailed Mr. Saint-Vil a letter on January 4, 2011, informing him that his appellate counsel filed a brief with this Court stating that no non-frivolous issues exist for this Court to review on appeal. We also informed him that he could file a supplemental brief on his own behalf and gave him until January 27, 2011 to do so. He filed a supplemental brief on January 11, 2011. As the State pointed out, however, the supplemental brief Mr. Saint-Vil filed raises issues pertinent to case 04-3033, which is not the subject of this appeal. We will, therefore, proceed with an independent review of the record which will consist of:

1) a review of the bill of information or indictment to insure the defendant was properly charged; 2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; 3) a review of all pleadings in the record; 4) a review of the jury sheets; and 5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Id.

Our review of the record supports appellate counsel’s assertion that no non-frivolous issues arguably support an appeal.

We have reviewed the record in its entirety, including the bill of information, all minute entries, pleadings, and the transcript. Mr. Saini>-Vil was present and represented by counsel at arraignment when he entered his not guilty plea and during the Boykin hearing when he withdrew that plea and tendered a plea of guilty as required by La.C.Cr.P. art. 831(A). The transcript of the Boykin hearing and the Boykin form indicate that Mr. Saint-Vil was adequately advised of |fithe right to a jury trial, the right of confrontation, and the privilege against self-incrimination. The trial judge explained to Mr. Saint-Vil the offense with which he was charged, the sentencing range for that offense, and the sentence he would receive pursuant to the agreement. Further, Mr. Saint>-Vil acknowledged that he understood his rights and wished to waive them. In addition, he acknowledged that he did, in fact, commit the offense. As appellate counsel pointed out, there were no rulings on any pre-trial motions in this case to review.

Because the record reveals no non-frivolous issues and no ruling which arguably supports an appeal, Mr. Saint-Vil’s conviction and sentence are affirmed. Appellate counsel’s motion to withdraw is granted.

Error Patent Discussion

Appellate counsel has requested that this Court review the record for errors patent in conformity with La.C.Cr.P. art. 920. See State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals an error that requires corrective action.

We first note that the trial judge imposed a sentence of five years in the Department of Corrections rather than stating the sentence was imposed at hard labor. When the trial judge states that the sentence is to the Department of Corrections, the sentence is necessarily at hard labor. Rochon v. Blackburn, 97-2799, p. 4 (La.App. 1 Cir. 12/28/98), 727 So.2d 602, 604. Therefore, no corrective action is necessary.

We also note that the commitment states that Mr. Saint-Vil’s sentence is to run concurrently with case 04-303. The case number, however, as correctly noted by the trial court is 04-3033. When there is a discrepancy between the transcript and the commitment, the transcript generally prevails. State v. Richardson, 09-0714, p. 8 (La.App. 5 Cir. 2/9/10), 33 So.3d 903, 908 citing State v. Lynch, 441 So.2d 732, 734 (La.1983). We therefore remand with an order that the district court amend the commitment to conform to the transcript. The district court is directed to make an entry in the minutes reflecting this change and the clerk of court is directed to transmit the original of the minute entry to the officer in charge of the institution to which Mr. Saint-Vil has been sentenced and to the General Counsel of the Louisiana Department of Public Safety and Corrections. La.C.Cr.P. art. 892(B)(2). State ex rel Roland v. State, 06-0244, (La.9/15/06), 937 So.2d 846.

Decree

For the foregoing reasons, the conviction and sentence are affirmed. The motion to withdraw as counsel is granted. The matter is remanded to the district court to amend the commitment for correction of the typographical error.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED; REMANDED WITH INSTRUCTIONS.

      . On January 28, 2009, Mr. Saint-Vil pled guilty to manslaughter in case number 04-3033 and was sentenced to 30 years imprisonment at hard labor. The next day, he pled guilty to three counts of varying forms of simple burglary in case number 04-4735 and was sentenced to 12 years imprisonment with the Department of Corrections on each count.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Larry W. WILLIAMS.
    No. 10-KA-1067.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 25, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Appellee, State of Louisiana.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant, Larry W. Williams.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

12Pefendant appeals his conviction and sentence, and counsel for appellant moves to withdraw from this matter. For the reasons that follow, we affirm defendant’s conviction and sentence. Lastly, we grant counsel’s motion to withdraw.

Facts and Procedural History

Because the defendant entered guilty pleas and there was no trial, the record contains minimal facts about the offense. During the guilty plea colloquy, however, the prosecutor presented the factual basis for the plea by stating that on February 18, 2010, defendant “knowingly and intentionally committed a violation of Louisiana Revised Statute 14:69 and that he did intentionally possess, procure, receive, or conceal the 1997 Dodge Intrepid belonging to one Mohamen Benmohamed, valued at over $500.00” which “defendant knew or had good reason to believe that the said property was subject to one of [a theft or robbery that] occurred in Jefferson Parish.”

On April 9, 2010, the Jefferson Parish District Attorney filed a bill of information charging Larry Williams with illegal possession of stolen things valued at over $500.00, in violation of La. R.S. 14:69. On June 18, 2010, ^defendant entered a plea of guilty as charged pursuant to a plea agreement. For possession of illegal things valued over $500.00, the trial judge sentenced defendant to five years at hard labor and ordered defendant to pay $135.00 in restitution.

That same day, the State filed a bill of information alleging that defendant was a second felony offender. Defendant stipulated to the allegations of the habitual offender bill of information. The trial court vacated defendant’s original sentence and, pursuant to La. R.S. 15:529.1, imposed an enhanced sentence of five years at hard labor, without benefit of probation or suspension of sentence, and $135.00 in restitution.

On August 11, 2010, defendant filed an Uniform Application for Post-Conviction Relief alleging ineffective assistance of counsel for counsel’s failure to file an appeal and requesting an out-of-time appeal, citing State v. Counterman, 475 So.2d 336 (La.1985). The trial court granted defendant’s motion for out-of-time appeal on September 2, 2010. This appeal follows.

DISCUSSION

Motion to Withdraw

Counsel for defendant has filed a brief averring that, after a conscientious and thorough review of the record, no non-frivolous issue exists to raise on appeal. Counsel for defendant further submits that there is no ruling of the trial court that arguably supports an appeal. Pursuant to this advisal, appellate counsel moves to withdraw from further representation of defendant.

In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the United States Supreme Court noted that, “if counsel finds [the] case to |4be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” Anders v. California, 87 S.Ct. at 1400. The Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam).

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. Id.

In this case, counsel filed a brief stating the procedural history of the case and a review of defendant’s guilty plea colloquies and sentencing transcripts. Counsel stated that “there were no motions or hearings held before defendant pled guilty as charged” and “no ruling of the trial court to be challenged.” Counsel further opined that a claim that defendant’s enhanced sentence was excessive would be frivolous for two reasons. First, defendant’s enhanced sentence, which was imposed in conformity with a plea agreement, was not subject to appeal under La.C.Cr.P. art. 881.2(A)(2). Second, defendant’s enhanced sentence of five years at hard labor without probation or suspension of sentence was well within the sentencing range proscribed by La. R.S. 15:529.1.

| ^Accordingly, following the procedures outlined in State v. Bradford, supra at 1110-1111, this Court conducted an independent review of the pleadings, minute entries, the bill of information, and transcripts in the appeal record. Upon review, we find that the record discloses no non-frivolous issues and no rulings that would arguably support an appeal.

In this case, appellant was arrested for illegal possession of stolen things, a violation of La. R.S. 14:69 on February 18, 2010. Meanwhile, the State instituted prosecution by filing a bill of information signed by the district attorney in the court having jurisdiction over the offense on April 9, 2010. See, La.C.Cr.P. art. 384.

Our review does reveal that, although appellate counsel contends that no motions were filed, the record reflects that defendant filed a motion for preliminary examination on March 16, 2010, which was continued without date on April 12, 2010. Indeed, our review of the record further reveals no minute entry reflecting that the motion was taken up by the trial court or that defense counsel raised the issue of the outstanding motion prior to defendant’s tender of his guilty plea. However, it is well-settled that a plea of guilty waives all defects prior to that plea except those jurisdictional defects, which appear on the face of the pleadings and proceedings. La. Const. Art. I, § 19; State v. Bell, 332 So.2d 222, 223 (La.1976); State v. Spain, 329 So.2d 178 (La.1976); State v. Coats, 260 La. 64, 255 So.2d 75 (1971); State v. Augustine, 08-71 (La.App. 5 Cir. 5/27/08), 987 So.2d 271, 276. As any 1nerror in the trial court’s ruling on defendant’s motion for preliminary examination is a non-jurisdictional defect, that error, if any, was waived.

Defendant was present and represented by counsel at arraignment, during his guilty plea proceedings, and at sentencing. See, La.C.Cr.P. arts. 831 and 835. Further, our review of the record shows that, during the guilty plea colloquy on the underlying offense, the trial judge properly advised defendant of the right to a jury trial, the right of confrontation, and the privilege against self-incrimination, as required by Boykin, The trial judge also explained to defendant the offense with which he was charged, the sentencing range for that offense, and the sentence he would receive in accordance with the plea agreement. Defendant acknowledged that he understood his rights, and that he wished to waive them and enter a guilty plea. Additionally, defendant, his attorney, and the trial judge properly executed a guilty plea form that enumerated defendant’s rights, detailed the sentencing range for the charged offense, and stated the five-year sentence that defendant would receive under the plea agreement.

Further, the record also shows that defendant was aware that he was admitting that he was second felony offender as alleged in the habitual offender bill of information. Defendant agreed during the colloquy stipulating that he was a second felony offender that he understood that he was waiving his rights. Defendant was advised that he faced a possible sentencing range of five to twenty years in the Department of Corrections as a second felony offender but that, |7pursuant to the plea agreement, he would receive a sentence of five years and be ordered to pay $135.00 in restitution.

Furthermore, defendant was advised in writing of his right to plead not guilty; his right to a have a hearing and force the District Attorney to prove (a) that defendant is same individual who has the prior felony record; (b) that the time period between the completion of the sentence for the prior felony and the date of the crime for which defendant had now been convicted is ten years or less; and (c) that if any prior conviction was the result of a guilty plea, that defendant was properly advised of his right to a trial by jury, his right to cross-examine the State’s witnesses, and his right to remain silent at trial and not have his silence held against him or considered as evidence of his guilt; and his right to remain silent at the hearing and not have his silence held against him. Again, pursuant to a properly-executed waiver of rights form, defendant agreed that his lawyer and the trial judge had explained his rights and the consequences of waiving these rights by pleading guilty. Upon review, we cannot say that there exists a non-frivolous issue with respect to defendant’s underlying guilty plea or habitual offender stipulation.

Finally, defendant’s sentence was imposed in conformity with a plea agree-raent. It is clear that a defendant cannot seek review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. La.C.Cr.P. art. 881.2(A)(2); State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Here, because defendant’s plea agreements were set forth in the record at the time of his plea, he is statutorily precluded from review.

Nonetheless, our review reveals that defendant’s sentence on his underlying offense was within the limits authorized by the version of La. R.S. 14:69(B)(1) in | ^effect at the time of the commission of his offense. His enhanced sentence was also within the statutory range set forth in La. R.S. 15:529.1 when read in conjunction with La. R.S. 14:69.

Therefore, we find that counsel conducted a detailed and thorough review of the record and adequately complied with An-ders and State v. Jyles, by setting forth in the appellate brief “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (quoting State v. Mouton, 95-0981, p. 2 (La.4/28/95), 653 So.2d 1176, 1177). The record evidences that defendant has received diligent advocacy from appellate counsel.

Assignment of Error

As the sole assignment of error, appellate counsel requests a review of the record for patent errors. Additionally, we note that appellate counsel has notified the defendant of her motion to withdraw and has advised defendant by certified letter of his right to file a pro se brief in this appeal. This Court also advised defendant by certified mail that his appointed attorney had filed an Anders brief on his behalf and that he had until February 2, 2011, to file a pro se supplemental brief. As of October 6, 2011, when this case was submitted for decision, defendant has not filed a supplemental brief with this Court.

Because defendant has not filed a separate pro se brief raising further issues, this Court’s review is limited to errors on the face of the record. La.C.Cr.P. art. 920. In this case, the sentencing transcript for defendant’s underlying offense |9reflects that defendant received an incomplete ad-visal regarding the prescriptive period for filing for post-conviction relief. At the time of sentencing on defendant’s underlying felony, the trial judge informed defendant, “[y]ou have two years from today’s date to seek post-conviction relief.”

We point out that this advisal would be harmless error if the correct prescriptive period was listed in the written waiver of rights form executed by defendant, his lawyer, and the trial judge during her acceptance of defendant’s guilty plea. See, La. C.Cr.P. art. 930.8(C)(“At the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post-conviction relief either verbally or in writing. If a written waiver of rights form is used during the acceptance of a guilty plea, the notice required by this Paragraph may be included in the written waiver of rights form.”)

Further, defendant was not advised after his enhanced sentence was imposed of the prescriptive period for post-conviction relief, either verbally or in writing. Accordingly, we correct that omission through this opinion by informing defendant that, pursuant to La.C.Cr.P. art. 930.8, an application for post-conviction relief, including an application for an out-of-time appeal, shall not be considered, except in limited instances, 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. art. 914 or 922. State v. Hill, 09-89, p. 7 (La.App. 5 Cir. 5/26/09), 15 So.3d 1042, 1046.

Conclusion

For the foregoing reasons, defendant’s conviction and enhanced sentence are affirmed. Lastly, we grant appellate counsel’s motion to withdraw.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . 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).

      . The procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in Bradford, supra.

      . The law in effect at the time of the commission of the offense is determinative of the penalty, which the convicted accused must suffer. State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518; State v. Johnson, 08-1156 (La.App. 5 Cir. 4/28/09), 9 So.3d 1084, 1094. On the date of the underlying offense, La. R.S. 14:69(B)(1), which was amended effective August 15, 2010 by Acts 2010, No. 585, § 1, read in pertinent part, "Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.”

      . No preliminary examination shall be held invalid because of an error that does not substantially prejudice the defendant. La. C.Cr.P. Art. 298. At that early stage of a case, a finding that the State lacks probable cause entitles a defendant only to release from custody or bail and does not prevent the State from proceeding against him. La.C.Cr.P. Art. 296. Thus, absent a demonstration of prejudice, any issue concerning probable cause is moot after conviction. State v. Washington, 363 So.2d 509 (La.1978).

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

      . Under the version of La. R.S. 14:69 in effect on the date of the commission of the underlying offense, defendant’s sentencing range was up to 10 years with or without hard labor and/or a fine of $3,000.00.

      . With the underlying felony conviction for La. R.S. 14:69(B)(1), defendant’s enhanced sentencing range as a second felony offender under 15:529.1(A)(1) was from 5 to 20 years without parole or suspension of sentence.

      .The State, however, filed its brief, noting that the appellant's counsel’s 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 determined that there were no significant non-frivolous issues upon which to base an appeal. The State requests that this Court affirm defendant’s conviction and sentence.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Keaton WILSON.
    No. 11-KA-40.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 25, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Lieu T. Vo Clark, Attorney at Law, Louisiana Appellate Project, Mandeville, LA, for Defendant/ Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| gDefendant pleaded guilty to illegal discharge of a weapon, manslaughter, attempted armed robbery, and two counts of armed robbery in the 24th Judicial District Court. Appellate counsel for Defendant filed the instant appeal for review of the record for errors patent on the face of the record. Additionally, appellate counsel filed a motion to withdraw. For the following reasons, we affirm Defendant’s convictions and sentences and grant appellate counsel’s motion to withdraw.

STATEMENT OF THE CASE

On March 20, 2008, the Jefferson Parish Grand Jury returned an indictment charging Defendant, Keaton Wilson, with illegal use of weapons or dangerous instrumental-ities, a violation of LSA-R.S. 14:94 (Count 1); second degree murder, in violation of LSA-R.S. 14:30.1 (Count 2); attempted armed robbery while armed with a firearm, a violation of LSA-R.S. 14:27 and LSA-R.S. 14:64.3 (Count 3); robbery while armed with a firearm, violations of LSA-R.S. 14:64 per LSA-R.S. 1,44:64.3 (Counts 4 and 5); and conspiracy to commit armed robbery while armed with a dangerous weapon, violations of LSA-R.S. 14:26 and LSA-R.S. 14:64 (Count 6).

Defendant pleaded not guilty at arraignment. After a jury trial had commenced, Defendant withdrew his not guilty pleas and pleaded guilty to all counts in the amended bill of information. Defendant was sentenced to two years on Count One for illegal use of a weapon, to run concurrently with all other counts. For Count Two, which was reduced to manslaughter in violation of LSA-R.S. 14:31, Defendant was sentenced to forty years in the Department of Corrections, with the sentence to run concurrently with all other counts except Count Four. On Count Three, attempted armed robbery, Defendant was sentenced to ten years in the Department of Corrections, to run concurrently with all other sentences. For Count Four, the armed robbery charge, Defendant was sentenced to ten years in the Department of Corrections, with the sentence to run consecutively to Count Two but concurrently with all other counts. On Count Five, Defendant was sentenced to ten years in the Department of Corrections to run concurrently with all of the other counts. Count Six was dismissed by the State.

Defendant, subsequently, filed a writ application to this Court, which was transferred to the trial court for consideration as an application for an out of time appeal under LSA-C.Cr.P. art. 914. Defendant was granted an appeal, and this timely appeal follows.

FACTS AND PROCEDURAL HISTORY

In the early morning hours on September 17, 2007, Defendant and another male approached Doral Hester and friends. Once Mr. Hester and his friends informed the two men that they did not have any drugs, Defendant, armed with an assault rifle, began shooting at them. Later that morning, Garland Taylor and |4Kerwin Gibbons were approached by Defendant and one other male. Defendant demanded money and opened fire on the men. Mr. Gibbons was shot and subsequently died as a result of his injury. Mr. Taylor later identified Defendant in a photographic lineup as the man armed with the assault rifle.

Shortly thereafter, two men in a green SUV approached David Hudson and Corey Quinn. The two men, one of which was armed with an assault rifle, robbed Mr. Hudson and Mr. Quinn of their property and vehicle. Mr. Hudson identified Defendant in a photographic lineup as the man with the assault rifle who robbed him. Not long after that robbery, a store owner in Orleans Parish was approached by two men, one of whom was Defendant. The store owner disarmed Defendant of his weapon before the two men fled the scene. The gun was found to be the source of bullet shell casings from both the scenes where the previous shootings had occurred. The owner of the gun used by Defendant was located. After the owner of the gun also identified Defendant to the police, an arrest warrant was issued for Defendant.

Eventually, Defendant turned himself in to the police on September 23, 2007 in Orleans Parish. Detective Roger Gorma-ba of the Jefferson Parish Sheriffs Office was contacted by an Orleans Parish officer. Detective Gorumba took several recorded statements of Defendant, in which he admitted his involvement in the Doral Hester shooting, the Garland Taylor and Kerwin Gibbons shooting, and the armed robbery of David Hudson and Corey Quinn. The recorded statements of Defendant were played for the jury prior to his guilty pleas.

| .DISCUSSION

Anders Brief

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97); 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Additionally, appointed counsel requests to withdraw as counsel of record. The State responds that appellate counsel has satisfied the requirements of Anders and Jyles, and should be allowed to withdraw. The State maintains that there are no non-frivolous issues that might be raised on appeal and urges this Court to affirm Defendant’s conviction and sentence.

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

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

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

Defendant’s appellate counsel asserts in her brief that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel notes Defendant filed a pre-trial motion to suppress which was denied by the trial court; however upon pleading guilty, Defendant did not preserve his right to object 17to the rulings under State v. Crosby, 338 So.2d 584 (La.1976). Counsel asserts the plea form signed by Defendant and the colloquy with the trial judge demonstrates that Defendant was informed of and considered the rights he was waiving by pleading guilty, as well as the sentences he would receive. Counsel concludes Defendant is now restricted by law from appealing his sentence under LSA-C.Cr.P. art. 881.2 and State v. Fazande, 97-979 (La.App. 5 Cir. 2/11/98); 707 So.2d 1031.

Appellate counsel has filed a motion to withdraw as attorney of record that states she has notified Defendant of the filing of her motion. Counsel also states that she has informed Defendant that he may file a supplemental brief on his own behalf. Additionally, this Court sent Defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until March 9, 2011 to file a pro se supplemental brief. In an Order dated February 23, 2011, this Court granted Defendant an extended date of March 25, 2011 to file his supplemental pro se brief. Defendant never filed a supplemental brief.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06); 926 So.2d 662, 664. The record shows Defendant was aware he was pleading guilty to illegal discharge of a firearm, manslaughter, attempted armed robbery, and two counts of armed robbery. The trial court properly advised Defendant of the right to a jury trial, the right of confrontation, and the privilege | Sagainst self-incrimination, as required by Boykin, The judge also explained to Defendant the offenses with which he was charged, the sentencing ranges for those offenses, and the sentences he would receive in accordance with the plea agreement. Defendant acknowledged that he understood his rights, and that he wished to waive them and enter a guilty plea. Additionally, Defendant and his attorney signed a guilty plea form that enumerated Defendant’s rights, detailed the sentencing ranges for the charged offenses, and explained the sentences Defendant would receive under the plea agreement. Defendant further indicated that he had not been forced, coerced, or threatened to enter his guilty plea. He was also informed that his convictions could be used to enhance a penalty for any future conviction. At the time of his guilty plea, Defendant did not preserve for appeal the trial court’s denial of his pre-trial motion under Crosby, supra.

Defendant’s sentences present no ap-pealable errors. The sentences were imposed pursuant to a plea agreement. LSA-C.Cr.P. art. 881.2 A(2) provides, in part, that “[t]he defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” Additionally, Defendant’s sentences are within the statutory sentencing ranges.

Because 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, and an independent review of the record supports counsel’s assertion, appellate counsel’s motion to withdraw is granted.

ERROR PATENT REVIEW

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). While the commitment indicates that all of Defendant’s sentences were to be served at “hard labor,” the transcript indicates only that each sentence will be served “in the Department of Corrections.” Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Although the trial court did not state that the sentences were to be served at hard labor, “a sentence committing a prisoner to the Department of Corrections is necessarily at hard labor.” State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04); 885 So.2d 618, (citing, State v. Lisenby 534 So.2d 996, 998 (La.App. 3 Cir.1988)). Accordingly, we find that no corrective is necessary.

DECREE

For the foregoing reasons, Defendant’s convictions and sentences are affirmed. Appellate counsel’s motion to withdraw as counsel for Defendant is hereby granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED

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

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

      . The record does indicate, however, that initially there was some confusion about whether Defendant’s pleas would be taken under Crosby. Ultimately, Defendant acknowledged on the record that his guilty pleas were not Crosby pleas.

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


text:
    Pamela Marinovich SHORT v. David Allen SHORT.
    No. 11-CA-3.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 25, 2011.

      Rachel C. Marinovich, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Bennett Wolff, Attorney at Law, Metair-ie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKS HOMBERG WICKER.
   FREDERICKS HOMBERG WICKER, Judge.

|2In this domestic matter, Pamela Mari-novich Short appeals two judgments. First, Ms. Short appeals the judgment following this Court’s remand, Short v. Short, 09-639, p. 15 (La.App. 5 Cir. 3/23/10), 33 So.3d 988, 997, writ denied, 10-1086 (La.9/3/10), 44 So.3d 688, wherein the trial judge ruled on remand that David Allen Short was not liable for a pro rata share of private school tuition (“tuition judgment”). Second, Ms. Short appeals the judgment wherein the trial judge determined the parties did not enter into a valid Covenant Marriage (“Covenant Marriage judgment”). This case presents two issues for our review: (1) Was the trial judge manifestly erroneous in finding that the parties failed to meet the statutorily-mandated requirements for a valid covenant marriage? (2) Was the trial judge manifestly erroneous or did he abuse his discretion in finding that Ms. Short failed to meet her burden in proving that an education at Kehoe-|Francea was necessary to meet the children’s needs? Finding no manifest error or abuse of discretion in the trial judge’s findings, we affirm.

Procedural History

Covenant Marriage Proceedings

These parties were married in 1997. In 2006, Ms. Short filed a petition for separation and other relief in which she asserted the parties contracted a Covenant Marriage and Mr. Short was guilty of cruel treatment in breach of the Covenant Marriage contract. In 2008 the parties were divorced pursuant to La.C.C. art. 103(2) based on testimony from Ms. Short that, in August 2007, she and her three children had moved in with Randy Menendez with whom she has a sexual relationship. Short, 09-639 at 4, 33 So.3d at 990.

Mr. Short filed various pleadings (including petitions for divorce) objecting to the assertion that the parties had contracted a Covenant Marriage.

Before considering Mr. Short’s latest divorce petition asserting Ms. Short’s alleged adultery, the trial judge conducted evidentiary hearings to determine whether the parties entered into a valid Covenant Marriage. In a ruling rendered in open court on March 18, 2008, and reduced to writing and signed on July 7, 2008, the trial court found that the parties did not enter into a Covenant Marriage. Ms. Short filed a timely motion for new trial, which the trial judge denied in open court on August 4, 2008. That judgment was not reduced to writing and signed until August 18, 2010, after the Louisiana Supreme Court denied writs in the former appeal. Short, 10-1086 (La.9/3/10), 44 So.3d 688. Until then any appeal from the Covenant Marriage judgment was premature. See: La.C.C.P. art. 1914(C).

| .(Previously, we pretermitted a discussion of the validity of the Covenant Marriage presented by Ms. Short’s answer to the former appeal, finding that matter was not before this Court. Short, 09-639 at 7, 33 So.3d at 993. We find that the issue is now ripe for review.

Tuition Proceedings

Mr. and Ms. Short share joint custody with Ms. Short as the domiciliary parent. Three children were born of the marriage: Anthony, Sarah, and Amanda.

The children had been homeschooled but in 2007, Ms. Short enrolled them in a private school — Kehoe-France on the North Shore — at a cost of approximately $15,000 to $18,000 per year. In July 2008, the trial court found that Mr. Short was responsible for 94% of the children’s tuition costs as extraordinary expenses added to the basic child support obligation, La. R.S. 9:315.6(1), for the school year 2007-08. However, based on Ms. Short’s failure to notify Mr. Short of the enrollment of the children in Kehoe-France school on the North Shore in advance, the trial court limited Mr. Short’s obligation for the children’s tuition and other expenses to Mr. Short’s proportionate share of the tuition of St. Christopher School in Metairie.

Mr. Short filed a motion for partial new trial on the issue of private school expenses. The trial court granted that motion in part and altered Mr. Short’s obligation to exclude the youngest child, Amanda, who was not yet in Kindergarten. At the time, Anthony and Sarah were in first grade and Kindergarten, respectively.

After the trial judge originally ruled that Mr. Short was responsible for his proportionate share of the tuition of St. Christopher School, Mr. Short filed an | -,objection to Ms. Short’s enrolling the children in Kehoe-France for the following 2008-09 school year. This objection addressed itself to where the children were to attend school, not to who would pay the tuition. That motion was heard on August 4, 2008. In open court, after hearing testimony, the trial judge denied the motion. Although Mr. Short originally appealed the tuition ruling, at that time the later ruling pertaining to the school the children would attend rather than tuition responsibility was not reduced to writing until August 18, 2010, after the Louisiana Supreme Court denied writs in the former appeal. Short, 10-1086 (La.9/3/10), 44 So.3d 688. In that later written ruling, the trial judge denied Mr. Short’s opposition to the children attending Kehoe-France for the 2008-09 school year. Mr. Short has not appealed that judgment. In addition, that judgment was not before us in the former appeal. Thus, the former appeal addressed only whether Mr. Short should pay his pro rata share of the tuition cost, not where the children would attend school.

In our previous opinion, we found an abuse of discretion in the ruling ordering Mr. Short to pay his proportionate share of tuition at Kehoe-France using the tuition at St. Christopher School as a base. We vacated that judgment and remanded the matter to the trial court for a finding on tuition that was consistent with the law. Short, 09-639 at 14, 33 So.3d at 996.

On remand, the trial court did not receive additional evidence or testimony. The trial judge ruled that Mr. Short was not liable for a pro rata share of private school tuition. At the time of our remand order, there was only one hearing concerning tuition — March 18, 2008. In contrast, the August 4, 2008 hearing concerned Mr. Short’s objection to the choice of school for the following year.

| ⅛Analysis

Covenant Marriage Judgment

Mr. Short argues that Ms. Short is barred from challenging the Covenant Marriage judgment based on the “law of the case” principle because Ms. Short raised it in her answer to the former appeal, and we addressed the issue.

That argument fails for two reasons.

First, we made no ruling on the merits regarding the validity of the Covenant Marriage. We declined to consider the issue because our jurisdiction was restricted to the two judgments on appeal, neither of which contained a ruling on the Covenant Marriage. Short, 09-639 at 7, 33 So.3d at 992.

Second, going beyond the narrow issue of whether Ms. Short’s answer was properly before the Court, we added a statement that the Covenant Marriage judgment was final. Short, 09-639 at 7, 33 So.3d at 992. Our statement that the judgment was final was obiter dictum and therefore did not constitute “law of the case.” Because obiter dictum is, by definition, not essential to the judgment of the court which states the dictum, it is not the “law of the case.” Ex parte Williams, 838 So.2d 1028, 1030 (Ala.2002) citing Gray v. Reynolds, 553 So.2d 79, 81 (Ala.1989).

Therefore, Ms. Short is not barred from challenging the Covenant Marriage judgment.

|7The Covenant Marriage Act, La. R.S. 9:272 et seq., was enacted effective July 15, 1997 by 1997 La. Acts No. 1380. Six weeks later, the office of the registrar of vital records for the Parish of Orleans issued the Shorts’ marriage certificate. Nine days later, Reverend John W. Zim-mer, Jr. performed the marriage ceremony.

In order to perfect a valid Covenant Marriage, the parties must comply with statutory mandates. La. R.S. 9:273(A)(2)(a); La. R.S. 9:273. In this case, Ms. Short relied on the certified copy of the marriage certificate as proof of a valid Covenant Marriage. In particular, she relied on the parties’ signed statement contained therein, stating: “We do hereby declare our intent to contract a Covenant Marriage and, accordingly, have executed a declaration of intent attached hereto.” There was, however, no attached documentation and Mr. Short denied signing the statement. The trial judge recognized that as a result of Hurricane Katrina, the New Orleans Parish Bureau of Vital Records could not produce the attached supporting documents, if these existed.

[8Mr. Short and Reverend Zimmer testified at the hearing. Ms. Short introduced into evidence without objection Reverend Zimmer’s affidavit executed on May 17, 2006.

Reverend Zimmer testified that he signed the affidavit attesting that prior to the parties’ marriage in 1997, he conducted the marital counseling session with them as required to enter into a Covenant Marriage. The affidavit also stated that the Reverend attested that prior to the marriage between the parties, he signed the attestation clause of the Declaration of Intent to enter into a Covenant Marriage, which had been executed by the parties.

At the hearing, however, Reverend Zim-mer testified differently. He testified that he did not specifically recall meeting with these parties or how soon he met with them before performing the ceremony. He was uncertain whether the parties signed a notarized form attesting that they had a discussion with him about the Covenant Marriage. He kept no records of the “very few” Covenant Marriages that he performed. He did not have any informative pamphlets that he either read and/or provided to the parties when he allegedly met with them for the premarital counseling. Reminded that he was under oath, he replied that he could not be certain that he met with Mr. Short for premarital counseling prior to the wedding date in accordance with the Covenant Marriage Act.

Mr. Short testified that he never received premarital counseling from Reverend Zimmer regarding a Covenant Marriage. He stated that the first time he met Reverend Zimmer was the night of the ceremony, although Reverend Zimmer might have been at the rehearsal dinner. He testified that he absolutely never signed a Declaration of Intent to enter into a Covenant Marriage. He did not recall ever seeing a document that was an attestation or affidavit of intent to enter into a Covenant Marriage.

InThe trial judge concluded that the mandatory requirements for a valid Covenant Marriage were not met: namely, a notarized Declaration of Intent signed by the prospective spouses (La. R.S. 9:273) and premarital counseling (La. R.S. 9:273(A)(2)(a)).

After that ruling, Ms. Short filed a motion for new trial based on alleged newly-discovered evidence. She stated that she discovered a duplicate original of the Declaration of Intent signed by both parties. However, she made no “due diligence” showing nor did she attach the required verified affidavit. At the hearing, Mr. Short’s counsel objected to the absence of the required verified affidavit. The trial court properly denied the motion for new trial. See: Bergeron v. Illinois Central Gulf Railroad Co., 402 So.2d 184 (La.App. 1 Cir.), writ denied, 404 So.2d 1260 (La.1981).

Ms. Short maintains, however, that the supporting documentation was unnecessary because once the certified copy of the certificate of marriage was introduced as a joint exhibit, she met her burden of proving a valid Covenant Marriage. We disagree.

There is no provision in the Covenant Marriage Act stating that the mandatory requirements for a valid Covenant Marriage are met solely by a signed statement of intent on the marriage certifícate. Rather, the Covenant Marriage Act mandates special procedures for perfecting such a marriage.

| mEssential requirements are encompassed within a Declaration of Intent that must be signed by the parties: (1) a detailed recitation of the elements of the Covenant Marriage contract; the parties’ acknowledgement that they have received premarital counseling on the nature, purposes, and responsibilities of marriage; their acknowledgement they have read the Covenant Marriage Act, and they understand that a Covenant Marriage is for life; and, their commitment to each other. (2) An affidavit by the parties that they have received premarital counseling from certain entities, including a minister or clergyman of any religious sect. (3) Premarital counseling, which includes a discussion of the seriousness of Covenant Marriage, communication of the fact that a Covenant Marriage is a commitment for life, a discussion of the obligation to seek marital counseling in times of marital difficulties, and a discussion of the exclusive grounds for legally terminating a Covenant Marriage by divorce or by divorce after a judgment of separation from bed and board. (3) An attestation, signed by the counselor and attached to or included in the parties’ affidavit, confirming that the parties were counseled as to the nature and purpose of the marriage. La.R.S. 9:273(A).

The Act provides that the Declaration shall contain two separate documents, the recitation and the affidavit, the latter of which shall include the attestation either included therein or attached thereto. La. R.S. 9:273(B). The Act further provides that the recitation shall be prepared in duplicate originals, one of which shall be retained by the parties and the other, together with the affidavit and attestation, shall be filed as provided in R.S. 9:272(B) (“The application for a |nmarriage license and the Declaration of Intent shall be filed with the official who issues the marriage license.”). Id.

Importantly, Mr. Short denied signing the required Declaration of Intent and he also denied receiving the mandated premarital counseling. Reverend Zimmer was uncertain whether the parties signed a notarized form attesting that they had a discussion with him about the Covenant Marriage. Considering Reverend Zim-mer’s uncertainty and Mr. Short’s denial that the parties had the requisite premarital counseling, we find no manifest error in the trial judge’s ruling there was no valid Covenant Marriage.

Tuition Judgment

The trial judge did not order Mr. Short to pay his proportionate share of tuition costs. Ms. Short argues that the trial judge was manifestly erroneous and failed to recognize the presumption that Ms. Short’s choice of school as the domiciliary parent was in the best interest of the children.

Both parties testified at the tuition hearing. Mr. Short testified he was not consulted and knew nothing of the intention to enroll the children in the expensive private school despite the fact that in July 2007 Ms. Short agreed to timely share information, including education. Ms. Short admitted she lives on the North Shore with Mr. Menendez, the man named in the divorce petition as her paramour.

Ms. Short moved to the North Shore in August 2007 and enrolled her children in Kehoe-France. According to Ms. Short, unlike a public school, Kehoe-France meets the gifted and talented needs of the children.

She testified that she tested Anthony when he was 5-1/2 with a homeschool program — the California Achievement Test— and he tested at above the third grade level. She stated that on standardized tests, Anthony always placed at least three or | igfour years above his level. And, Anthony and Sarah are in advanced classes at Kehoe France.

Mr. Short, however, testified differently. He stated that Anthony told him that he was in the first grade. Mr. Short did not know that Anthony was in advanced classes. He did not, however, speak to anyone at Kehoe-France about his children’s needs.

According to Ms. Short, Kehoe-France, unlike public schools and most private schools, quickly placed gifted students in advanced classes. Other schools required such. a gifted student to remain in the regular class. She acknowledged that public schools have gifted and talented classes, but stated that a child must wait six months for testing. And, according to Ms. Short, the public schools only offer a minimum one hour per week per school per child of gifted/talented programs.

Ms. Short testified that in addition to Kehoe-France’s gifted program, the school offers Spanish, swimming, and horseback riding. Also, if she needed to move to the South Shore, Kehoe-France has a school there.

According to Ms. Short, on July 1, 2007, she planned to continue to homeschool the children for the 2007-08 school year but the hearing officer told her to enroll the children in school. Therefore, she had to quickly find a school. Of the schools she investigated, Kehoe France alone was excellent and had openings. She was aware, however, that some public schools in St. Tammany Parish, where she resides, are excellent and public schools had openings.

On the other hand, Mr. Short testified that the hearing officer did not order the enrollment. The hearing officer only told them that if they planned to enroll the children at that late date, they should start investigating schools.

| iSMr. Short testified that he could not afford the tuition. He did not have the opportunity to investigate other schools because he thought that Ms. Short would continue homeschooling the children and he had time to research the matter. He believed that the North Shore public school system offered a good option.

The trial judge concluded that Ms. Short, a nonprofessional, presented a one-sided view as to Anthony’s high level functioning. The trial judge also remarked there was no testimony presented about the advancement of the other two children. Ms. Short’s counsel stated that counsel had Anthony’s test results but no evidence was introduced.

After remand, in denying the request for additional child support (private tuition and expenses), the trial judge reasoned that the presumption that the domiciliary parent’s decisions are in the best interest of the children is not absolute. Moreover, under the governing statute, La.R.S. 9:315.6, Ms. Short failed to meet her burden. He found that the children, who were homeschooied, did not have a consistent history of attendance at private schools which would require their attendance to ensure stability and continuity in their education. Further, he found there was no supporting evidence that Kehoe France met the children’s needs. Finally, he concluded that Ms. Short rushed the enrollment and did not investigate other options.

A trial court may award child support for expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child. La. R.S. 9:315.6(1). Short, supra, 09-639 at 13, 33 So.3d at 996. Expenses associated with private school are not automatically added to the basic child support obligation. Campbell v. Campbell, 95-1711 (La.App. 1 Cir. 10/10/96) 682 So.2d 312, 320 citing La.R.S. 9:315.6, which provides in part (emphasis added):

By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation:
(1) Expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child.

The word “may” in this statute indicates the addition of private school expenses is permissive and not mandatory. Campbell, supra.

La. R.S. 9:315.6 was amended in 2001 removing the language requiring that a “particular educational need” to attend the special or private school be shown. The statute, as amended, is less restrictive to encompass generally “the needs of the child.” State Dept. of Social Services ex rel. K.L. v. Lesky, 07-599, p. 5 (La.App. 5 Cir. 12/27/07), 975 So.2d 657, 659. The comments to La.R.S. 9:315.6 provide in pertinent part: “The needs of the child met by the special or private school need not be particular educational needs, but may include such needs of the child as the need for stability or continuity in the child’s educational program.” 2001 Comments to La.R.S. 9:315.6.

Thus, in the absence of an agreement of the parties, Ms. Short was required to present evidence that an education at Ke-hoe-France was necessary to meet | l5the children’s needs. D’Aquilla v. D’Aquilla, 03-2212, p. 9 (La.App. 1 Cir. 4/2/04), 879 So.2d 145, 150, writ denied, 04-1083 (La.6/25/04), 876 So.2d 838.

A trial court’s determination of whether to include private school tuition in a basic child support obligation will not be disturbed absent an abuse of discretion. Lesley, supra, 07-599 at 5, 975 So.2d at 659 (citation omitted). Generally, an appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error. Id.

On appeal, Ms. Short states that the trial judge’s reasons for judgment are directly contrary to the facts presented in the two separate hearings, and flies in the face of the judgment which denied the opposition to the school. She argues that on remand, the trial judge should have considered the hearing of August 4, 2008 (Mr. Short’s opposition to the school placement for the following year). In any event, even if the trial judge had considered both hearings, we find that at neither hearing did Ms. Short introduce corroborative or supporting evidence — a concern that the trial judge expressed.

Ms. Short admitted there were some excellent public schools in her area. However, she stated that those schools had limited gifted programs.

The trial judge concluded that Ms. Short rushed to enroll their children in Kehoe-France without adequately investigating the school-placement options. Ms. Short defended her actions by testifying that the hearing officer told her to enroll the children in school. The trial judge, however, did not find that testimony credible. His conclusion is supported by the record. The record contains no order ordering school placement. Also, Mr. Short testified that the hearing officer only told them that if they contemplated school placement they should soon start investigating their options. The trial judge evidently accorded Mr. Short’s testimony on that issue as more credible. Additionally, the trial judge (in making 11fihis credibility determinations) was mindful that Ms. Short did not abide by the co-parenting agreement by failing to timely inform Mr. Short about the school placement. In sum, the trial judge reasoned that school placement at Kehoe-France was a premature unilateral decision that lacked adequate investigation of alternative schools. We find the trial court could have reasonably reached the conclusion of inadequate investigation of alternative schools in view of the rush to placement at Kehoe-France. Furthermore, the children were homeschooled and had not been in private school. Thus, there was no need for stability and continuity in a private school setting.

Also, by reasoning that Ms. Short did not have supporting evidence, the trial court essentially attached little credibility to her testimony alone. Therefore, he evidently attached little weight to Ms. Short’s testimony on the issue of whether her children were gifted and only Kehoe-France could meet that need or that their alleged gifted need could be met only at Kehoe-France rather than the available public school or any other school. Thus, in light of the trial judge’s reasonable findings, we will not reweigh Ms. Short’s self-serving testimony unsupported by any documentary evidence or testimony. Mr. Short testified that he had no time to conduct an adequate investigation of school options since he did not learn until much later that she had rushed to enrollment without consulting him. By rushing to enroll the children, the trial judge could have reasonably concluded that Ms. Short did not perform an adequate investigation and therefore she failed to show that the children had gifted needs for which the public schools were inadequate.

To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993) (citations omitted). Upon review of the record and finding a reasonable basis for the trial court’s conclusion that there was no proof that the children were gifted and thus had needs that were met by Kehoe-France alone, we find no error in the trial court’s finding that Ms. Short did not meet her burden of proof on this issue. Compare: State, Dept. of Social Services v. Swords, 08-0580, pp. 3-4 (La.App. 3 Cir. 11/5/08), 996 So.2d 1267, 1270 (The appellate court reversed the trial court’s award of tuition expenses because the mother’s unsupported testimony was insufficient to prove needs.).

Ms. Short also argues that the trial court’s decision on remand is inconsistent with applicable law regarding the domiciliary parent’s decisions. She contends that once the trial court determined (in the other judgment not on appeal) that the private school was in the best interest of the children, the trial court should have ordered the father to pay his proportionate share of the costs.

As the domiciliary parent, Ms. Short has the authority under La. R.S. 9:335(B)(3) to “make all decisions affecting the child unless an implementation order provides otherwise.” La. R.S. 9:335(B)(3) also provides that all major decisions made by a domiciliary parent are subject to review by the court upon motion of the other parent and that there is a presumption that all major decisions made by the domiciliary parent are in the best interest of the child. In this case, the trial court evidently found that Mr. Short failed to overcome the presumption of the law that Ms. Short’s choice of school for the 2008-09 school year was in the best interest of the children. Mr. Short did not appeal that judgment. Rather, Ms. Short appeals the trial judge’s ruling on remand that private school tuition as a special or extraordinary expense may not be added into the computation of the total child support obligation pursuant to La. R.S. 9:315.6(1). On this issue, Ms. Short has the | isburden to prove the private school fulfills the needs of the children in a different manner from the public school or an alternative school.

We recognize that our ruling regarding the cost of tuition contrasts from the trial court’s unappealed judgment regarding Ms. Short’s choice of the private school but the burdens of proof are different. See and Compare: Shaw v. Shaw, 30,613, p. 13 (La.App. 2 Cir. 6/24/98), 714 So.2d 906, 913, writs denied, 98-2414, 2426 (La.11/20/98), 729 So.2d 556, 558. In other words, to rebut the domiciliary presumption, Mr. Short had to show that the school decision was not in the best interest of the children. Whereas, for the special charge for private school tuition to be added to Mr. Short’s basic child support obligation, Ms. Short must prove that the “[ejxpenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school meet the needs of the child.” La. R.S. 9:315.6. Stated differently, Ms. Short had the burden to prove the children’s needs are met only through the private school.

We find that the trial judge did not abuse his discretion in finding that Ms. Short’s decision as domiciliary parent that raised the question of additional child support was outweighed by the burden-shifting statute, R.S. 9:315.6.

Conclusion

For the foregoing reasons, we affirm the judgments.

AFFIRMED

      . That judgment was rendered July 29, 2010 and a motion for new trial was denied on August 26, 2010.

      . That judgment was rendered on July 7, 2008 but the written judgment denying the motion for new trial was not signed until August 18, 2010.

      . Evidently, the judgment was not presented to the trial judge when rendered or shortly thereafter. Uniform Rules — District Courts, Rule 9.5 pertinently provides:
      All judgments, orders, and rulings requiring the court's signature shall either be presented to the judge for signature when rendered or, if presented later, contain the typewritten name of the judge who rendered the judgment, order, or ruling. If presented later, the responsible attorney or the unrepresented party shall circulate the proposed judgment, order, or ruling to counsel for all parties and to unrepresented parties and allow at least three working days for comment before presentation to the court. When submitted, the proposed judgment, order, or ruling shall be accompanied by a certificate regarding the date of mailing, hand delivery, or other method of delivery of the document to other counsel of record and to unrepresented parties, stating whether any opposition was received.

      . The "law of the case” principle relates to (a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case. Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973).

      . Since the trial court’s ruling in open court on the Covenant Marriage issue was not signed until after we rendered our previous opinion in this matter, Ms. Short’s previous answer raising this issue was premature.

      . A certified copy of the marriage certificate was introduced into evidence as a joint exhibit.

      . Ms. Short relies on La.C.E. art. 905(A), which states:
      Self-authentication. Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to a document purporting to be a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, when it is certified as being true or correct by the custodian or other person authorized to make the certification, by certificate complying with Article 902(1), (2), or (3) and when, by statute, it is made to be presumptively or prima facie genuine or authentic.

      . Current law requires the application for a marriage license must also include the statement completed by at least one of the two parties. La.R.S. 9:224(C). However, under current law, the failure of the application to contain the signatures of both parties shall not affect the validity of the covenant marriage if the declaration of intent and accompanying affidavit have been signed by the parties. La.R.S. 9:224(E). 1999 La.Acts, No. 1298 § 1.

      .La.R.S. 9:224(C) provides that the marriage application must include that statement. Also, La.R.S. 9:245(A)(1) states that the marriage certificate shall include, if applicable, “a designation that the parties entered into a covenant marriage, signed by the parties to the marriage and by the witnesses, and the signature and title of the officiant.” The marriage certificate in this case contains two sets of signature lines. The first set concerns the Covenant Marriage statement while the second set concerns the ceremony. Here, the Covenant Marriage statement contained signature lines for the parties only while the lower portion (concerning the ceremony) contained signature lines for witnesses, the parties, and the officiant. Reverend John Zim-mer, the officiant, testified that he completes the ceremony portion of the form and then mails the form to the Clerk of Court. The only signatures done in his presence are those pertaining to the ceremony.

      . La.C.C.P. art. 1972(2) provides that a new trial shall be granted, upon contradictory motion of any party, when the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial. La. C.C.P. art. 1975 provides that when the motion is based on Article 1972(2), the allegations of fact therein shall be verified by the affidavit of the applicant.

      . Ms. Short states in brief that the duplicate original of the Declaration of Intent was presented to the trial court at the hearing on the motion for new trial. We have reviewed the transcript and find that no document was introduced into evidence or proffered at that hearing. Rather, Ms. Short’s counsel mentioned that she showed the trial judge the document. Mr. Short’s counsel disputed that allegation, stating that at a status conference, Ms. Short's counsel "flashed" a document in front of the court. The trial judge did not comment when he denied the motion.

      . After the parties were married in 1997, the act was amended by Acts 1999, No. 1298, § 1 to further require an acknowledgement that the parties received and read the informational pamphlet developed and promulgated by the office of the attorney general entitled "Covenant Marriage Act” which provides a full explanation of the terms and conditions of a Covenant Marriage.

      . At the conclusion of the hearing, Ms. Short’s counsel argued that the cost of the school was only slightly higher than any other parochial school. The trial judge later opined that the tuition was probably not that much higher than most parochial schools. No evidence was introduced, however, to compare these tuition costs.

      . During oral argument, Ms. Short raised as error the trial judge's alleged reliance on the wrong law. She argued that this Court should conduct a de novo review because the trial judge erred as a matter of law in his reasons for judgment when he referred to the former law, which required a showing of "particular educational need.” Uniform Rules — Courts of Appeal, Rule 2-12.4 further provides that "[a]ll specifications or assignments of error must be briefed" and that the “court may consider as abandoned any specification or assignment of error which has not been briefed.” Since Ms. Short did not brief this error, we deem the issue abandoned. But, assuming this issue is properly before this Court, it lacks merit. The district court’s oral or written reasons for judgment form no part of the judgment, and appellate courts review judgments, not reasons for judgment. Bellard v. Am. Cent. Ins. Co., 07-1335, 07-1399, p. 25 (La.4/18/08), 980 So.2d 654, 671 (citations omitted). After our review of the record and the trial court’s judgment and reasons for judgment, we cannot conclude that the trial court misapplied the burden of proof such as would warrant a de novo review. The trial court made specific credibility determinations and factual findings in support of its judgment. The overriding fact question in the case turned on credibility. The trial court’s findings, reasons, and exercise of discretion are clearly implied by the record. See Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89, 96 (citation omitted) (De novo review is an exceptional remedy available only when the trial court’s "findings, reasons and exercise of discretion are [not] necessarily and clearly implied by the record.”). Here, the trial court considered and applied the correct law in its analysis of the testimony and evidence presented at trial. Thus, the manifest error standard applies.

      . Although Shaw was decided under the former law, which required proof of particular educational needs, we find the discussion with respect to the different burdens of proof applicable to the amended law as well.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    ANTON, LTD. v. COLONY INSURANCE COMPANY, Western Heritage Insurance Company and Pascua’s Roofing and Construction, LLC.
    No. 11-CA-157.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 25, 2011.

      Prescott L. Barfield, Attorney at Law, Covington, LA, for Plaintiff/Appellant.
    Michael J. Vondenstein, Joseph L. Spil-man, III, Attorneys at Law, Metairie, LA, for Defendant/Appellee-2nd Appellant.
    Jay Russell Sever, Jennifer Morris, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this insurance coverage dispute, the plaintiff/appellant, Anton, Ltd. (Anton) appeals the trial court’s grant of the defendant/appellee’s, Western Heritage Insurance Company (Western Heritage), motion for summary judgment. For the reasons that follow, we affirm.

Factual and Procedural Background

Mr. Anton Heine, the owner of Anton, hired Pascua Roofing and Construction, LLC (Pascua Roofing) — owned and operated by Mr. Dennis Pascua — to replace the roof of the building located at 3121 22nd Street in Metairie, Louisiana where Mr. Heine operated a jewelry and antique store. A few months before starting the job, Mr. Pascua visited Gama Insurance Agency to procure a commercial general liability policy for his roofing operations.

|sMr. Ortiz, the president of Gama Insurance, completed the commercial insurance application online on October 3, 2007, for Mr. Pascua. The nature of business section of the application stated, “installation and repair of shingle[d] roofs, carpentry, installation of drywall, floor covering, tile, wood, interior painting.” Mr. Ortiz then completed an artisan supplemental application on October 6, 2007, in his handwriting, which stated that Mr. Pascua would be engaged in 20% commercial and 80% residential construction work. The supplemental application further stated that $5,000 of employee payroll was allocated to “Roofing-Commercial” and $5,000 was allocated to “Roofing — Residential.” Both parties signed the application. The following caveat appeared next to them signatures, “[t]he applicant understands that submission of this information creates no obligation on the part of the Company to provide insurance on the basis requested or on any other basis.” (emphasis added).

Approximately four to five days after completing the application, Mr. Ortiz called Mr. Pascua and informed him that his application had been approved. Mr. Ortiz received the Western Heritage policy at his office on October 24, 2007. Mr. Ortiz called Mr. Pascua that day and asked him whether he wanted to pick up the policy or whether he should mail it. Mr. Pascua instructed him to mail the policy. Mr. Ortiz mailed the policy, via regular mail, on October 25, 2007, accompanied with a letter instructing Mr. Pascua to read the policy — especially the conditions, limitations, and exclusions. Mr. Pascua testified that he received the policy months after he applied for the insurance and that he did not read the policy upon receipt.

Mr. Pascua began the Anton job on the morning of January 23, 2008. He finished working around 5 P.M., completing only one-third of the job. Expecting rain the following day, Mr. Pascua secured the 2" wide seam that existed between |4the old and new roof membranes with a blue vis-queen tarp. When Mr. Heine arrived at his business the following day, water had leaked through the roof onto the second and first floors of the building. Mr. Heine telephoned Mr. Pascua and informed him of the situation. Mr. Pascua then notified Mr. Ortiz. Mr. Pascua testified that Mr. Ortiz told him “[t]he insurance is going to handle it.” Mr. Ortiz completed a notice of loss form on January 29, 2008.

Anton filed a Petition for Damages against Colony Insurance Company (Colony). Western Heritage, and Pascua Roofing on July 28, 2008 due to damages it sustained. Anton later amended its petition to include Gama Insurance Agency. The petition alleges that Pascua Roofing installed “insufficient and flimsy tarpaulin” on the roof which allowed rain to enter the building and cause Anton’s damage. Anton sued for direct and consequential damages resulting from the negligently inadequate and improper securing of the roof. Western Heritage moved for summary judgment on October 28, 2008 arguing that no coverage existed under the policy because of the “Designated Roofing Operations” exclusion. Mr. Pascua and Mr. Ortiz were deposed prior to the summary judgment hearing.

Mr. Pascua testified that shingled roofs are generally associated with residential operations whereas flat roofs are generally associated with commercial operations. He explained that in order to apply a flat roof, a plastic base sheet must first be installed. Thereafter, a membrane, which comes in a rolled form, must be unrolled and placed over the base sheet. Mr. Pas-cua testified that unrolling the sheet for installation required heating with a torch down. He further testified that based on his experience, the majority of commercial roofs in the New Orleans area were flat roofs.

| sMr. Pascua testified that when he sought coverage for his business, he informed Mr. Ortiz that he would be doing both shingled roofs and flat roofs. Contrary to Mr. Ortiz’s assertion, however, Mr. Pascua testified that he did not allocate a percentage amount between commercial and residential. Rather, he told Mr. Ortiz that he did more shingled roofs than flat roofs. Although he was unable to recall whether he told Mr. Ortiz that he specifically did “torch-down” roofs, he did tell Mr. Ortiz that he did flat roofs. Mr. Pascua also testified that Mr. Ortiz did not ask him whether he used any special equipment, hot tar, or plastic membrane for his roofing operations nor was he told that those types of activities were excluded from coverage. Mr. Pascua further testified that no one from Gama Insurance reviewed the policy with him when it arrived and that he believed he was covered for both shingled and flat roofs because that is what he requested.

Mr. Ortiz testified that Mr. Pascua specifically told him he would be doing 20% commercial and 80% residential construction work. Yet, Mr. Ortiz also stated that Mr. Pascua only sought coverage for shingled roofs. Mr. Ortiz testified that he was unfamiliar with roofing exclusions because he had not sold any roofing policies prior to the one sold to Mr. Pascua. Prior to the issuance of the policy, Mr. Ortiz had Mr. Pascua sign all of the exclusions he received from N-Surance — none of which excluded any type with roofing or roofing procedures. Mr. Ortiz further testified that when the policy arrived on October 24, 2007, he took two hours to read it to familiarize himself with its provisions. This is when he first learned of the roofing exclusions.

Although Mr. Ortiz mailed the policy to Mr. Pascua on October 25, 2007, he testified that he did not know when Mr. Pascua received it, because he did not send it by certified mail. He testified, however, that Mr. Pascua had the Western | r,Heritage policy with him in November of 2007 when he came to Gama Insurance to make his premium payment. Mr. Ortiz testified that Mr. Pascua showed him the policy, told him he had read it, and stated that he had no questions about it.

Western Heritage’s motion for summary judgment was heard on September 21, 2010. The trial court took the matter under advisement and granted the motion on September 24, 2010. Both Colony Insurance and Anton moved for a devolutive appeal.

Standard of Review

Appellate courts must review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Supreme Services & Specialty Co., Inc. v. Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. (citation omitted). Initially, the movant bears the burden of proof. Id. If the movant successfully meets this burden, then the burden shifts to the other party to present factual support adequate to establish that he/she will be able to satisfy the evidentia-ry burden at trial. Id. (citation omitted). If the other party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. Id.

According to La. C.C.P. art. 966(B), a motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, show that there is no genuine issue of material fact, and the mover is entitled to a judgment as a matter of law. A court should only grant the motion for summary judgment when the facts are taken into account and it is clear that the provisions of the insurance 17policy do not afford coverage. Supreme Services, supra, at 638 citing Reynolds v. Select, 93-1480 (La.4/11/94), 634 So.2d 1180, 1183.

If the insurance policy’s language clearly expresses the parties’ intent and does not violate a statute or public policy, the policy must be enforced as written. Id. However, if the insurance policy is susceptible to two or more reasonable interpretations, then it is considered ambiguous and must be liberally interpreted in favor of coverage. Id. Reynolds, supra; Newby v. Jefferson Parish Sch. Bd., 99-98 (La.App. 5 Cir.6/1/99), 738 So.2d 93.

Liability insurance policies should be interpreted to effect, rather than to deny coverage. Id. (citation omitted). However, it is well-settled that “unless a statute or public policy dictates otherwise, the insurers may limit liability and impose such reasonable conditions or limitations upon their insureds.” Id. at 638-89. (citations omitted). In these circumstances, unambiguous provisions limiting liability must be given effect. Id. (citations omitted). Thus, the insurer bears the burden of proving that a loss falls within a policy exclusion. Id.

Assignments of Error

Both Colony Insurance and Anton have assigned specifications of error in this appeal. Colony Insurance contends that the trial court erred in finding that coverage did not exist under the Western Heritage policy. Anton contends that the trial court erred by finding that no genuine issues of material fact existed as to whether Mr. Pascua received the policy prior to the date of loss; by not finding Gamma to be Western Heritage’s agent; by not finding that Mr. Pascua’s statements were imputable to Western Heritage; and by not finding that Western Heritage’s policy was against public policy.

| ^Preliminarily, we note, as did Western Heritage, that Anton’s second and third assignments of error were not raised at the district court level. Therefore, we will not consider those issues in this appeal.

Discussion

Colony Insurance’s and Western Heritage’s First Assignment of Error

Due to the interrelatedness of the issues, Colony Insurance’s sole assignment of error and Western Heritage’s first assignment of error will be discussed in tandem. The crux of their argument is that the trial court erred in finding that coverage did not exist under the Western Heritage policy because there is a genuine issue of material fact regarding when Mr. Pascua received the policy.

In this case, the “Designated Roofing Operations” exclusion excludes:

All operations by or for “you” in the following:
Flat roof installation or repair; any kind of “hot” application; including, but not limited to, hot tar; hot mop and/or any kind of torch down work; any kind of “membrane” work; any kind of polyurethane, polyvinyl chloride (PVC) or other types of roof work involving plastic materials or products.

There is no dispute that, facially, the exclusion applies to the type of work Mr. Pascua was engaged in when Anton sustained damages. Anton contends, however, that the exclusion is inapplicable because there is a genuine issue of material fact as to whether Mr. Pascua received the policy prior to the date of loss.

One of the cases upon which Anton relies on is Louisiana Maintenance Services, Inc. v. Certain Underwriters at Lloyd’s of London, et al., 616 So.2d 1250 (La.1993). In that case, the Supreme Court held that because the insurer failed to comply with the statute requiring delivery of the policy, the insurer could not rely 13on the policy exclusion to deny coverage. Id. at 1253. And in Sims v. Insurance Unlimited of West Monroe, 28,234 (La.App. 2 Cir. 2/28/96), 669 So.2d 709, another case Anton relies upon, the insured did not receive a copy of his policy— which contained a territorial exclusion— until after he was involved in an accident in Mexico. In concluding that the territorial exclusion was inapplicable, the Sims court found the legal principles enunciated in Louisiana Maintenance valid, recognizing that the insurance agent did not discuss with the plaintiff “the exclusions and limitations of the policy he was purchasing.” Id. at 711.

Both Sims and Louisiana Maintenance are distinguishable from the present case. Louisiana Maintenance dealt with nondelivery of a policy which neither the insured nor the agent received prior to the loss. And though not explicitly stated, it is also highly probable that the agent in Sims did not receive the policy prior to the loss.

In this case, however, Mr. Ortiz testified that he received the policy on October 24, 2007. Therefore, the date upon which Mr. Pascua received the policy is inconsequential. La. R.S. 22:873(A) provides, “... every policy shall be delivered to the insured or to the person entitled thereto within a reasonable period of time after its issuance.” (emphasis added). In John v. Gourmet Pizzas, Inc., 00-0749 (La.App. 4 Cir. 1/31/01), 778 So.2d 1223, the First Circuit Court of Appeal had to decide whether an agent of the insured was a person entitled to delivery of the policy. To answer that question, the Gourmet Pizzas court relied upon the Supreme Court’s decision in Pruitt v. Great Southern Life Ins. Co., 12 So.2d 261, 262 (La.1942) which stated:

|1(>A delivery of an insurance policy may be actual or constructive. Actual delivery is not essential, unless expressly made so by the terms of the agreement. (emphasis in original). Whether an insurance policy has or has not been delivered after its issuance so as to complete the contract and give it binding effect does not depend upon its manual delivery to, or possession by, insured, but rather upon the intention of the parties as manifested by their acts or words. The test of a sufficient delivery is whether the company or its agent intentionally parts with control or dominion of the policy and places it in the control or dominion of insured or some person acting for him with the purpose of thereby making a valid and binding contract of insurance, (emphasis added).
Gourmet Pizzas, supra, at 1226.

In this case, Mr. Ortiz received the policy on October 24, 2007. Thus, delivery to Mr. Ortiz constituted constructive delivery to Mr. Pascua. “Actual delivery is not essential, unless expressly made so by the terms of the agreement.” Id. Then, Mr. Ortiz mailed the policy to Mr. Pascua on October 25, 2007. By depositing the policy in the mail, Mr. Ortiz “intentionally partfed] with control or dominion of the policy and place[d] it in the control or dominion of the insured.” Id.

An insured has a duty to read its insurance policy and is deemed to know the policy contents. Seruntine v. State Farm Fire and Cas. Co., 10-1108 (La.9/3/10), 42 So.3d 968. Had Mr. Pascua read the policy upon receipt, he would have been apprised of the exclusion that was expressly stated therein. Anton cannot now assert Mr. Pascua’s lack of knowledge about the exclusion to argue that its claim should be covered.

Western Heritage’s Fourth Assignment of Error

In its fourth assignment of error, Anton contends that the Western Heritage policy is against public policy because it fails to provide coverage for any type of commercial roofing operations.

|nAnton cites to Encompass Insurance Company v. Gammon Roofing, L.L.C., 07-1554 (La.App. 4 Cir. 9/24/08), 996 So.2d 16. Anton distinguishes Encompass from the present case noting that in Encompass, the court held that the roofing exclusion was not against public policy because the roofing exclusion was meant to exclude fire damage. Anton contends that this holding is inapplicable here because it sustained water damage. That argument is uncom-pelling.

The Designated Roofing Exclusion in this case does not specify what kind of damage it excludes. It simply states that it excludes any damage resulting from the exact work Mr. Pascua was engaged in. Moreover, the CGL policy in this case does not exclude coverage for all roofing operations. It only excludes those roofing operations which present an unreasonable risk of harm. Because an insurer may “insert in its policies any provisions or conditions required by its plan of insurance or method of operation ...,” we find that the policy is not against public policy. La. R.S. 22:861.

Accordingly, we affirm the judgment of the trial court granting Western Heritage’s motion for summary judgment.

AFFIRMED

      . Colony Insurance insured the building where the damages were sustained.

      . N-Surance appears to be the insurance broker.

      . Uniform Rules — Courts of Appeal, Rule 1-3 provides, "The Courts of Appeal will review only issues which were submitted to the trial court ...”

      . La. R.S. 22:873 provides: "Subject to the insurer's requirements as to payment of premium, every policy shall be delivered to the insured or to the person entitled thereto within a reasonable period of time after its issuance.”

      . In Sims, the insured purchased full automobile insurance on December 21, 1994 in Louisiana; was involved in an automobile accident on December 23 or 24 in Mexico; and filed a claim with his agent on January 4, 1994. The agent informed him on January 9, 1995 that there was a problem with his claim because the policy excluded claims for accidents originating in Mexico. He then received a copy of his policy on January 13, 1995. Considering that the accident occurred within three days of the insurance purchase, it is unlikely that the agent received a copy of the policy prior to the loss.