author: HILLARY J. CRAIN, Judge Pro Tem.

text:
    STATE of Louisiana v. Tim PRICE.
    No. 10-KA-701.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 10, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Kenneth Bordelon, Brandon Kinnett, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for PlaintiffAppellee.

      Karla M. Baker, Joseph P. Raspanti, Attorneys at Law, Metairie, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, MARC E. JOHNSON, and HILLARY J. CRAIN, Pro Tempore.
   HILLARY J. CRAIN, Judge Pro Tem.

|20n October 24, 2006, defendant, Tim Price, was charged by bill of information with possession of cocaine in excess of 28 grams, a violation of LSA-R.S. 40:967 F. At the October 27, 2006 arraignment, defendant pled not guilty. He then filed motions to suppress a statement and to suppress evidence, both of which were denied on March 19, 2007. The matter proceeded to trial before a twelve person jury, which, on March 23, 2007, found defendant guilty as charged.

On June 29, 2007, the trial court sentenced defendant to twenty-five years imprisonment at hard labor. The State thereafter filed a multiple offender bill of information alleging defendant to be a fourth felony offender. On October 16, 2008, the court adjudicated defendant a fourth felony offender, vacated the previously imposed sentence, and resentenced defendant as a multiple offender to thirty-five years imprisonment at hard labor, without benefit of probation or suspension of sentence. On February 24, 2010, the trial court granted defendant’s motion for out-of-time appeal.

| ^ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant challenges the trial court’s denial of his motions to suppress evidence and statement. The facts as presented in the motion to suppress hearing are as follows:

In October of 2006, Detectives Shane Klein and Eric Dufrene of the Jefferson Parish Sheriffs Office Narcotics Division participated in a narcotics investigation that led to the arrest of defendant. According to Detective Klein, he received information from a confidential informant that defendant was selling crack cocaine in Marrero and that defendant drove two different vehicles when delivering the cocaine. The confidential informant also gave Officer Klein a physical description of defendant and pointed defendant out in a photograph. Based on the information received, Detective Klein arranged for the confidential informant to make a controlled buy of crack cocaine from defendant at a convenience store on Fourth Street in Marrero.

On October 6, 2006, the officers set up surveillance at the convenience store and waited for defendant to arrive. From his surveillance position, Detective Dufrene observed defendant drive into the parking lot in a white Toyota Tundra, one of the vehicles described by the confidential informant. Shortly after defendant’s arrival, Detective Dufrene observed a white male enter the front passenger side of the vehicle and start exchanging objects with defendant. After a short time, this individual exited the vehicle and walked away. Detective Dufrene then observed the confidential informant approach the vehicle and enter the front passenger side. The officer observed defendant and the confidential informant engage in a hand-to-hand transaction. The confidential informant exited the car, 14and defendant drove out of the parking lot. Officer Dufrene followed defendant, never losing sight of him.

In the meantime, the confidential informant met Detective Klein and provided the officer with the contraband that was just purchased from defendant. The confidential informant told the officer that there was another white male subject inside the vehicle and that defendant had a large quantity of crack cocaine. Detective Klein immediately advised Detective Du-frene and other assisting officers of the information received from the confidential informant.

Pursuant to the information received, Detective Dufrene stopped the Toyota Tundra in the 1100 block of Oak Street and asked the occupants to exit. Once they exited, the officer closed the doors of the truck to make sure no one had access to it. Detective Dufrene then illuminated the interior of the vehicle with his flashlight, at which time he observed a large plastic bag of off-white rocks that looked like crack cocaine. Officer Dufrene testified that the bag was in the middle of the back seat in plain view. In the meantime, Detective Klein had arrived and conducted a field test on the substance which proved positive for cocaine. Both individuals were then advised of their Miranda rights, placed under arrest, and transported to the detective bureau. Detective Klein spoke to defendant at the detective bureau, and defendant verbally admitted that the cocaine in the truck was his.

After listening to the evidence presented at the hearing, the trial judge denied defendant’s motion to suppress evidence as well as his motion to suppress statement. Defendant now challenges this denial. Defendant specifically contends that the trial court erred in denying these motions because “police were allowed to |5testify regarding his alleged interaction with a confidential informant” at the suppression hearing. He asserts that because the police were allowed to testify regarding defendant’s interaction with an informant at the motion hearing, the State violated his right to confront and cross-examine his accusers under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In his brief, defendant further argues that the informant’s identity was not disclosed nor was the informant’s information proven to be reliable, and that but for the informant’s tip, police would have had no reason to stop defendant.

In this assigned error, defendant’s argument focuses on the alleged violation of his right to confront and cross-examine his accusers. The Sixth Amendment of the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. The Louisiana Supreme Court has held that the defendant’s constitutional confrontation rights are not affected by questioning at a motion hearing. In State v. Harris, 08-2117 (La.12/19/08), 998 So.2d 55, 56, the Supreme Court specifically held that “[t]he right to confrontation contained in the United States and the Louisiana Constitutions is not implicated in this pre-trial matter.” The Supreme Court has reaffirmed this principle on several occasions. See State v. Taylor, 09-2341 (La.2/5/10), 26 So.3d 776; State v. Weathersby, 09-2407 (La.3/12/10), 29 So.3d 499, 501.

Given the fact that the Confrontation Clause is not implicated at a motion hearing, there is no merit to defendant’s argument that the State violated his right to confront and cross-examine his accusers because the police were allowed to testify regarding defendant’s interaction with an informant. Moreover, we note that at trial, there was no reference to a confidential informant. In particular, the |fiState and the defense agreed before trial that the officers would not testify with regard to any police interaction with the informant.

As part of this assignment, defendant also complains that the informant’s identity was not disclosed nor was the informant’s information proven to be reliable. In the present case, defendant never raised this issue either at trial or at the suppression hearing. In fact, at the suppression hearing, defendant did. not object to the officers’ testimony and further did not object to the confidential informant’s reliability or to the informant’s name not being disclosed. LSA-C.Cr.P. art. 841 provides that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. Since defendant did not object, he failed to preserve this alleged error for appellate review.

Based on the foregoing discussion, we find that the arguments raised by defendant with regard to the trial court’s denial of his motions to suppress evidence and statement are without merit.

ASSIGNMENT OF ERROR NUMBER TWO

On appeal, defendant also challenges the trial court’s denial of his motion to continue the trial. Defendant specifically argues that because of the denial of the continuance, counsel did not have adequate time to prepare or to familiarize himself with the facts of the case, and as a result, he received ineffective assistance of counsel.

Defense counsel filed a motion to continue on March 15, 2007. Defense counsel noted that he had been appointed Traffic Hearing Officer in Second Parish Court for March 2007. Defense counsel argued in the motion that his appointment prohibited him from being able to go forward with the trial. Additionally, defense counsel noted that his co-counsel would be “unavoidably out of the area.” On March 19, 2007, the trial court denied the motion, noting that the court would work |7with defense counsel with respect to the traffic hearing officer position and that he was not even aware that co-counsel was involved in the case because defense counsel was the only party who had made appearances on behalf of defendant. Defense counsel filed an application for writs, which this Court denied on March 21, 2007. State v. Price, 07-197 (La.App. 5 Cir. 3/21/07). Defendant now raises this issue on appeal.

Under the doctrine of “law of the case,” an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. However, the appellate court’s denial of supervisory writs does not bar reconsideration of an issue on appeal, nor does it prevent the appellate panel from reaching a different conclusion on the issue. State v. Bozeman, 06-679 (La.App. 5 Cir. 1/30/07), 951 So.2d 1171, 1174. Reconsideration is warranted when, in light of a subsequent trial court record, it is apparent that the determination was patently erroneous and produced unjust results. State v. Williams, 05-318 (La.App. 5 Cir. 1/17/06), 921 So.2d 1033, 1035, unit denied, 06-0973 (La.11/3/06), 940 So.2d 654.

In the present appeal, defendant has produced no new arguments or evidence to show that this Court’s prior disposition was patently erroneous and produced unjust results. Accordingly, we decline to revisit this issue on appeal.

ASSIGNMENT OF ERROR NUMBER THREE

In this assignment of error, defendant challenges the sufficiency of the evidence used to convict him of possession of cocaine. Defendant specifically contends that the State failed to prove possession as well as the weight of the cocaine.

The standard for review of the sufficiency of the evidence on appeal is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence may either be direct or circumstantial. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 provides that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” This is not a separate test from the Jackson standard but rather provides a helpful basis for determining the existence of reasonable doubt. Both the direct and circumstantial evidence must be sufficient to support the conclusion that defendant is guilty beyond a reasonable doubt. State v. Henry, 08-658 (La.App. 5 Cir. 10/27/09), 27 So.3d 935, 942, unit denied, 09-2485 (La.4/23/10), 34 So.3d 269.

In order to support a conviction for possession of cocaine pursuant to LSA-R.S. 40:967, the State must prove beyond a reasonable doubt that the defendant was in possession of the cocaine and that he knowingly possessed it. State v. Walker, 03-188 (LaApp. 5 Cir. 7/29/03), 853 So.2d 61, 65, writ denied, 03-2343 (La.2/6/04), 865 So.2d 738. The element of possession may be proven by showing that the defendant exercised either actual or constructive possession of the cocaine. State v. Jones, 08-20 (LaApp. 5 Cir. 4/15/08), 985 So.2d 234, 241. A person is in actual possession when the person has an object in their possession or on their person in such a way as to have direct physical contact with and control of the object. State v. Bright, 03-489 (La.App. 5 Cir. 10/28/03), 860 So.2d 196, 205, unit denied, 03-3409 (La.4/2/04), 869 So.2d 875.

A person who is not in physical possession of narcotics may have constructive possession when the drugs are under his dominion and control. State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 761, writ denied, 01-2269a (La.9/20/02), 825 So.2d 1156. A determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. Factors to be consid ered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include his knowledge that drugs were in the area, his relationship with the person found to be in actual possession, his access to the area where the drugs were found, evidence of recent drug use, and his physical proximity to the drugs. State v. Toups, 01-1875 (La.10/15/02), 833 So.2d 910, 912.

In the present case, defendant claims that the State failed to prove possession. He specifically points to the fact that the owner of the vehicle, Kirby Sovinette, was in the back seat of the vehicle where the drugs were found, and therefore, the State did not exclude the reasonable hypothesis that the drugs at issue belonged to Kirby Sovinette.

In State v. Ankrum, 573 So.2d 244 (La.App. 1 Cir.1990), the First Circuit concluded the evidence was sufficient to support possession of cocaine convictions for three occupants of a vehicle where cocaine was found on the back right floorboard under papers and other debris. In affirming defendants’ convictions, the First Circuit reasoned:

In this case, the cocaine was found on the right rear floorboard under debris. It was not cleverly concealed or in any way out of reach of each defendant. The question on appeal is whether under Jackson, supra, a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that each defendant had dominion and control over the cocaine and that they knowingly possessed it. The record supports the finding by the jury that each of the three defendants was guilty of constructive possession of cocaine under the standards of Jackson.

In State v. Savoie, 09-103 (La.App. 5 Cir. 5/12/09), 15 So.3d 207, 213, unit denied, 2009-1306 (La.2/5/10), 27 So.3d 297, this Court held that the evidence was sufficient to support defendant’s conviction for possession of cocaine. In | inSavoie, defendant purchased cocaine at a location under surveillance, evidence consisted of activity that officer observed while conducting surveillance, and a bag of cocaine was found on the seat of the truck between two occupants, such that defendant had dominion and control of it.

Likewise, in State v. Manson, 791 So.2d at 761-62, this Court found that the evidence was sufficient to establish that defendant had constructive possession of cocaine found in vehicle he was driving, despite testimony the car belonged to another person. In Manson, the rocks of crack cocaine were located on the floorboard on the driver’s side of the car. In finding constructive possession, this Court noted, “[cjonsidering that the car was in defendant’s custody and the drugs were found in plain view, it is unlikely he did not know cocaine was in the car ... It is difficult to fathom how defendant could have been completely unaware of the presence of cocaine in that car.”

In the present case, we find that the evidence presented by the State proved beyond a reasonable doubt that defendant was guilty of possession of cocaine in excess of twenty-eight grams. With regard to the element of possession, Detective Dufrene testified that he saw defendant and another individual engage in a hand-to-hand transaction in the front seat of the Toyota Tundra. The officer thereafter stopped the truck and discovered a large rock of crack cocaine sitting in plain view in the middle of the rear seat of the vehicle that defendant was driving. At trial, the officer testified that the cocaine was within two or three feet of defendant. Moreover, once he was transported to the detective bureau, defendant admitted that the cocaine was his. In addition to this testimony, Captain Ronald Halstead of the Jefferson Parish Sheriffs Office testified that when defendant was booked at the Jefferson Parish Correctional Center, he was in possession of $402 in various denominations.

InWith regard to the amount of cocaine, Thomas Angelica of the Jefferson Parish Sheriffs Office Crime Laboratory, testified that he analyzed the substance recovered from the rear seat of the truck and that the test results were positive for cocaine. Mr. Angelica further testified that the net weight of the substance recovered from the truck was 47.43 grams.

Viewing the evidence presented in this case in the light most favorable to the prosecution, we find the evidence was sufficient to prove the elements of the charged offense beyond a reasonable doubt. Accordingly, the arguments raised by defendant in this assigned error are without merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In this assigned error, defendant challenges his multiple offender adjudication. More specifically, defendant contends that the trial court erred in finding him to be a fourth felony offender because he “was not properly advised of the possible future applicability of LSA-R.S. 15:529.1 and/or the rights he was giving up by tendering a plea of guilty.” Defendant also contends “the arrest documentation used by the Assistant District Attorney was insufficient and was inadmissible hearsay,” and therefore, the evidence presented by the State was insufficient to prove defendant’s multiple offender status.

In this case, defendant was charged as a fourth felony offender. The three predicate offenses were: (1) 24th Judicial District Court case number 89-5156 relative to theft over $500.00, to which the defendant pled guilty in February of 1991; (2) 24th Judicial District Court case number 91-5222 relative to distribution of cocaine, to which the defendant pled guilty in June of 1992; and (3) 24th Judicial District Court case number 92-2805 relative to armed robbery, to which the defendant pled guilty in September of 1992.

1 iJn order to prove that a defendant is a habitual offender, the State must establish by competent evidence the defendant’s prior felony convictions and that defendant is the same person who was convicted of the prior felonies. The Habitual Offender Law, codified in LSA-R.S. 15:529.1, does not require the State to use a specific type of evidence in order to carry its burden of proof. Any competent evidence may prove the defendant’s prior convictions. The State may meet its burden of proof by various means including the testimony of witnesses to prior crimes, expert testimony matching fingerprints of the defendant with those in the record of prior convictions, or photographs contained in a duly-authenticated record.

State v. Jenkins, 07-586 (La.App. 5 Cir. 1/22/08), 977 So.2d 142, 146.

When the defendant’s habitual offender status is based on guilty pleas in the predicate convictions, the State has the burden of proving the existence of the defendant’s guilty pleas and that an attorney represented the defendant when the guilty pleas were taken. If the State meets its burden of proof, then the burden shifts to the defendant to produce some affirmative evidence of an infringement of his rights or a procedural irregularity. State v. Jenkins, 977 So.2d at 147.

If the defendant meets his burden, then the burden shifts back to the State to prove the constitutionality of the plea by producing a perfect transcript, which shows that the defendant’s waiver of his Boykin rights was voluntary, informed, and express. If the State produces anything less than a perfect transcript, such as a guilty plea form, minute entry, or imperfect transcript, the trial judge must weigh the evidence to determine whether the defendant’s prior plea was knowing and voluntary. State v. Shelton, 621 So.2d 769, 774-77 (La.1993); State v. Jenkins, 977 So.2d at 147.

In his challenge to the multiple offender adjudication, defendant claims that, when taking his guilty pleas on his prior offenses, the presiding judges failed to inform him that those guilty pleas and convictions could later be used against him to enhance the sentence on a subsequent conviction. We first note that in his response to the multiple bill and well as his motion to quash the multiple bill, defendant never objected on this basis. Rather, he claimed that in the predicate guilty pleas, he was not properly advised of his Boykin rights. According to LSA-C.Cr.P. art. 841, “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” Moreover, LSA-R.S. 15:529.1 D(l)(b) provides that any challenge to a previous conviction that is not made before sentence is imposed may not thereafter be raised to attack the sentence. Since defendant failed to object on this basis at the time of the multiple offender proceedings, he failed to preserve it for review on appeal.

Moreover, even if this issue was not waived, it has no merit. In State v. Nuccio, 454 So.2d 93, 104 (La.1984), the Louisiana Supreme Court noted that the scope of Boykin “has not been expanded to include advising the defendant of any other rights which he may have, nor of the possible consequences of his actions. Our jurisprudence has never required that a defendant be informed that his guilty plea-his conviction-may be used as a basis for the filing of a future multiple offender bill.” In State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158, 1164, the Louisiana Supreme Court confirmed that it has never extended the core Boykin constitutional requirements to include advice with respect to sentencing. See also State v. Farinas, 09-396 (La.App. 5 Cir. 11/24/09), 28 So.3d 1132, 1140, writ denied, 10-0086 (La.6/25/10), 38 So.3d 335. Furthermore, we note that two of the predicate guilty plea forms signed by defendant advised him that if he was convicted of another crime in the future the penalties for that crime could be enhanced or he could be multiple billed under the Habitual Offender Law.

We have also addressed defendant’s contention that “the arrest documentation used by the Assistant District Attorney was insufficient,” and therefore, the evidence presented by the State was insufficient to prove defendant’s multiple offender status. Having reviewed the multiple offender proceedings, we likewise find no merit to this argument.

For 24th Judicial District Court case number 89-5156 and 24th Judicial District Court case number 91-5222, the State introduced the original records of the predicate convictions, which contain bills of information charging defendant with theft and distribution of cocaine, waiver of rights forms signed by defendant, as well as commitments and fingerprint sheets bearing defendant’s name. For 24th Judicial District Court case number 92-2805, the State introduced the bill of information charging defendant with nine counts of armed robbery, a waiver of rights form signed by defendant, fingerprint sheets bearing defendant’s name, and a Boykin colloquy. In that Boykin colloquy, defendant indicated that he understood his right against self-incrimination, his right to trial by jury, and his right to confront his accusers, and that he was waiving those rights by entering a guilty plea.

As to all three cases, the State introduced the testimony of Aisha Simon, an expert in the comparison and analysis of latent fingerprints. Ms. Simon testified that she took fingerprints from defendant and compared those with fingerprints from certified conviction packets in case numbers 89-5156, 91-5222, and 92-2805. She concluded that these prints were made by the same person.

Based on the foregoing, we find that the State presented sufficient evidence to prove defendant’s status as a fourth felony offender. Accordingly, the arguments raised by defendant with regard to his multiple offender adjudication are without merit.

ASSIGNMENT OF ERROR NUMBER FIVE

In his final assignment of error, defendant contends that the thirty-five year sentence imposed upon his adjudication as a fourth felony offender is excessive.

In the present case, defendant was convicted of possession of cocaine in excess of 28 grams, and according to LSA-R.S. 40:967 F(l)(a), faced a possible sentence of imprisonment of five to thirty years and a fine of not less than $50,000 nor more than $150,000.00. He was subsequently adjudicated a fourth felony offender, and as such, was subject to a sentence of not less than thirty years and not more than his natural life. LSA-R.S. 15:529.1 A(l)(c)(i). Defendant received a sentence of thirty-five years and now contends that it is excessive.

On appeal, defendant specifically asserts that the sentence imposed makes no measurable contribution to acceptable goals of punishment and is out of proportion to the severity of the crime. In addition, he contends that the trial court failed to comply with the sentencing guidelines of LSA-C.Cr.P. art. 894.1 and failed to properly tailor his sentence to the facts of this case.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the sense of justice. State v. Warmack, 07-311 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 109.

The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Shannon, 04-1361 (La.App. 5 Cir. 4/26/05), 902 So.2d 519, 523-524. The relevant question on appeal is whether the trial court abused its broad sentencing discretion, and not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

In the present case, the trial judge indicated generally that it had considered the sentencing guidelines contained in LSA-C.Cr.P. art. 894.1 in imposing the sentence on defendant. Even though the trial judge did not specifically articulate the factors considered in imposing sentence, the record clearly supports the thirty-five year sentence. We note that defendant was convicted of possessing more than 28 grams of cocaine. In addition, defendant has an extensive criminal history as evidenced by the comments at the original sentencing and at the subsequent multiple offender sentencing. Finally, defendant could have received a sentence of life imprisonment at hard labor as a fourth felony offender. He actually received a substantially lighter sentence from the trial court.

Moreover, a review of similar cases indicates that the sentence is not excessively harsh. For example, in State v. Harvey, 08-0217 (La.App. 4 Cir. 5/13/09), 12 So.3d 496, the Fourth Circuit affirmed a thirty year sentence for a second felony offender for possession with intent to distribute cocaine. In State v. Johnson, 43, 302 (La.App. 2 Cir. 4/30/08), 982 So.2d 260, writ denied, 08-1277 (La.2/6/09), 999 So.2d 769, the appellate court affirmed the defendant’s life sentence as a fourth felony offender for possession of cocaine.

| ^Accordingly, we conclude that the trial court did not abuse its sentencing discretion and that defendant’s sentence was not excessive. The arguments raised by defendant in this assigned error are likewise without merit.

ERROR PATENT DISCUSSION

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). Our review reveals a discrepancy between the transcript and the commitment/minute entry on the multiple bill. The commitment/minute entry indicates that the defendant pled guilty to the multiple bill; however, as evidenced by the transcript, defendant did not plead guilty but rather was adjudicated a fourth felony offender after a hearing. Since the commitment/minute entry is not consistent with the transcript, we remand the matter to the trial court for correction of the October 16, 2008 commitment/minute entry to reflect that defendant was adjudicated a fourth felony offender.

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence and remand the matter to the trial court with directions to correct the October 16, 2008 minute entry.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The other individual in the truck was Kirby Sovinette, the registered owner of the vehicle. At the suppression hearing, this individual is referred to as Kirby Sovillion, but at trial he is referred to as Kirby Sovinette. For purposes of this opinion, he will be referred to as Kirby Sovinette.

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


source: Caselaw Access Project

author: COOKS, Judge. THIBODEAUX, Chief Judge,

license: Public Domain

text:
    Patrick E. PHILLIPS, Jr., et al. v. G & H SEED CO., et al.
    No. 10-1405.
    Court of Appeal of Louisiana, Third Circuit.
    May 11, 2011.
    Rehearing Denied July 27, 2011.

      Elwood C. Stevens, Jr., Domengeaux Wright Roy & Edwards, LLC, Lafayette, LA, Jerald Edward Knoll, Sr., The Knoll Law Firm, LLC, Marksville, LA, André F. Toce, The Toce Firm, A.P.L.C., Lafayette, LA, for Plaintiffs/Appellants, Patrick E. Phillips, et al.
    Gary A. Bezet, Robert E. Dille, Carol L. Galloway, Allison N. Benoit, Kean, Miller, Hawthorne, D’Armond, McCowan & Jar-man, L.L.P., Baton Rouge, LA, Terrence D. McCay, Kean, Miller, Hawthorne, D’Ar-mond, McCowan & Jarman, L.L.P., Lake Charles, LA, for Defendants/Appellees, Bayer CropScience LP, Michael Redlich, G & H Seed Company, Inc., Crowley Grain Drier, Inc., Nolan J. Guillot, Inc., and Mamou Rice Drier and Warehouse, Inc.
    Raymond P. Ward, Adams and Reese, L.L.P., New Orleans, LA, for Defendants/Appellees, Bayer CropScience LP and Michael Redlich.
    Michael T. Pulaski, McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, PC, Covington, LA, for Defendants/Appel-lees, Allianz Global Risks and U.S. Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   COOKS, Judge.

Plaintiffs, who consist of several dozen buyers and/or processors of crawfish, appeal the trial court’s granting of the defendants’ motions for summary judgment, which dismissed the remaining claims of the buyer/processor plaintiffs. For the following reasons, we reverse the summary judgment grants, and remand the matter back to the trial court for trial on the merits.

FACTS AND PROCEDURAL HISTORY

This protracted and contentious litigation had its genesis in the late 1990’s, when Bayer CropScience LP and its employee, Michael G. Redlich, marketed the insecticide ICON in Louisiana. Certain companies purchased ICON, applied it to rice seed, and sold the ICON-coated rice seed to rice farmers in Louisiana. Many of these rice farmers also raised crawfish in their rice ponds.

Essentially, Plaintiffs allege the ICON coated rice seed was introduced into the rice fields/crawfish ponds of South Louisiana in 1999. The active ingredient in ICON was fipronil, which is a chemical used to control arthropods and is used in a variety of compounds to control insects such as termites, fleas, mole crickets and the rice water weevil. According to the plaintiffs, the introduction of ICON killed and/or sterilized the crawfish, both wild and pond-raised. According to the plaintiffs, as a result of the contamination, Louisiana’s annual farm-raised crawfish crop dropped from over 60 million pounds to approximately 10 million pounds.

Defendants argued the use of ICON is compatible with crawfish farming, provided the farmer allows for a suitable waiting period between planting the ICON-treated rice seed and introducing crawfish to the rice field. Defendants also argued the record breaking drought in Louisiana during the time in question was the reason for the decline in crawfish production.

In 1999, a class action lawsuit was filed on behalf of all crawfish farmers in Louisiana, Craig West, et al. v. G & H Seed Co., et al., No. 99-C-4984-A in the Twenty-Seventh Judicial District Court, Parish of St. Landry. That lawsuit was eventually settled.

Thereafter a class action Suit was initiated on behalf of Patrick Phillips and At-chafalaya Processors, Inc. individually and on behalf of all others similarly situated. This class action suit was brought by craw-fish buyers, processors and resellers. Named as Defendants were Bayer Crop-Science LP and Michael Redlich. Also named as Defendants were the companies who purchased the ICON, applied it to the rice seed, and sold it to the farmers: G & H Seed Co., Inc., Crowley Grain Drier, Inc., Delhi Seed Co., Inc., Terral Seed Co., Inc., Mamou Rice Drier & Warehouse, Inc.

Plaintiffs eventually abandoned their efforts to certify either a plaintiff or defendant class. Thereafter, through a series of supplemental and amending petitions, the matter proceeded as a cumulation of individual actions comprising the claims of approximately 72 individual crawfish buyers, resellers, and processors.

Bayer filed an exception of no cause of action, contending in order to maintain a delictual action against a manufacturer for property damage caused by a defective product, the claimants must have some proprietary interest in the damaged property. Bayer argued that since none of the plaintiffs in this litigation are crawfish farmers, and none of them had any ownership in the damaged crop, they could not demonstrate the required proprietary interest. Plaintiffs argued there were existing joint ventures between the crawfish farmers and buyers/processors during the time the crawfish crop was damaged. The trial court overruled the exception, rejecting the per se exclusionary/proprietary interest rule of Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), in favor of the policy driven duty/risk analysis | sespoused in PPG Industries, Inc. v. Bean Dredging, 447 So.2d 1058 (La.1984). The trial court found in applying a duty-risk analysis, the law extended a remedy to the buyer/processor plaintiffs. Bayer applied for writs to this Court. Writs were denied.

Because of the enormity of trying all 72 actions at once, the trial court determined it would be best to try the actions of four plaintiffs, three to be chosen by the plaintiffs and one chosen by the defense. This number was eventually reduced to three plaintiffs: Patrick Phillips (d/b/a Phillips Seafood), James Bernard (d/b/a J. Bernard Seafood Processors, Inc.), and Lisa Guidry (d/b/a Guidry’s Crawfish).

After a full trial on the merits, Plaintiffs filed a Motion for Directed Verdict on whether the Defendants’ duty extended to these buyer/processor plaintiffs. Finding there was an “ease of association from farmer to wholesaler” such that farmers and processors are “inextricably interwoven and symbiotic in their relationships,” the trial court granted the Motion for Directed Verdict. The jury then returned a verdict in favor of each of the three plaintiffs, assigning 94% fault or causation to Bayer, 1% to Bayer salesman Michael Redlich, and 4% to the drought that occurred in South Louisiana. It awarded $900,000 to plaintiff Phillips, $750,000 in damages to plaintiff Bernard, and $100,000 to plaintiff Guidry.

Defendants timely filed a Motion for Judgment Notwithstanding the Verdict, New Trial, and Remittitur. The motions were denied and Defendants filed an appeal with this Court.

A five judge panel of this Court reversed the trial court’s directed verdict on scope of duty and set aside the jury’s verdict. Phillips v. G & H Seed Co., 08-934 (La.App. 3 Cir. 4/8/09), 10 So.3d 339 (hereafter referred to as Phillips I). The majority reasoned that since “the plaintiffs in this case failed to prove a proprietary interest in the crawfish crop destroyed by the use of ICON.... the plaintiffs cause |4must fail.” Id. at 344. The majority did not undertake a duty-risk analysis or apply the PPG factors as done by the trial court. Instead it applied the per se exclusionary/proprietary interest rule of Robins Dry Dock. Plaintiffs also note the majority did not explain what would be “sufficient” to establish a proprietary interest under Louisiana law.

Judge Saunders dissented from the majority opinion, finding it contradicted the Louisiana Supreme Court’s finding in 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 234 (La.1989), that “the PPG case abrogated] the rule that flatly prohibited recovery for intangible economic loss produced by negligent conduct.” Judge Saunders found “the only conclusion a reasonable juror could reach was that Bayer had reckless disregard for the potential ramifications to this state’s crawfish industry, as a whole, when crawfish farmers used ICON.” Phillips I, 10 So.3d at 345. This callousness, Judge Saunders concluded, was sufficient to support the trial court’s directed verdict on scope of duty. Further, Judge Saunders noted that even if one interprets PPG-as the majority does, it was factually distinguishable from the present case. In PPG, the plaintiff had an alternative source to get the natural gas it needed, whereas the buyers/processors here had no other source for the crawfish they contracted to receive from the craw-fish farmers. This interwoven, symbiotic relationship between crawfish farmers and crawfish buyers/processors was different than that present in PPG.

Plaintiffs’ Application for Rehearing to this Court was denied. Similarly, the application for a Writ of Review to the Louisiana Supreme Court was denied. Phillips v. G & H Seed Co., 09-1504 (La.10/30/09), 21 So.3d 284. Following these denials, Defendants filed Motions for Summary Judgment against all the remaining buyer/processor plaintiffs based on the proprietary interest requirement espoused by this Court’s opinion in Phillips I.

| fjAt the hearing on the summary judgment motions, Plaintiffs argued the duty-risk analysis set forth in the PPG case was controlling in this case. Plaintiffs also contended even if the trial court was compelled to enforce a proprietary interest requirement pursuant to this Court’s decision in Phillips I, that term had never been defined by our Supreme Court to require ownership to assert a claim for economic damages. Plaintiffs complained they were at a loss to understand exactly what material fact(s) were necessary to establish a level or degree of interest sufficient to allow them to prevail. Nonetheless, in an attempt to meet this burden of proof, Plaintiffs submitted numerous sworn affidavits attesting to the nature and extent of the buyers/processors involvement in the Louisiana crawfish industry.

In oral reasons for judgment, the trial court voiced its disagreement with the opinion in Phillips I. However, believing it was constrained by that ruling, the trial court granted the motions for summary judgment and dismissed the remaining claims of the buyer/processor plaintiffs.

| (¡Plaintiffs have appealed the trial court’s granting of the summary judgment, and assert the following assignments of error:

1. It was error to ignore the mandates of PPG and its progeny and not employ a duty-risk/ease of association analysis which considers the scope of Defendants’ duties in the context of moral, social and economic issues involved and a view toward the ideal of justice.
2. It was error to require Plaintiffs to prove a “proprietary interest” in the damages crawfish crops as a prerequisite to recovery in this tort suit asserting claims under the Louisiana Products Liability Act for breach of express warranty, failure to warn and false representations.
3. If a proprietary interest is required (which is disputed), then the trial court erred in applying Phillips I so as to require actual “ownership” in order to establish such an interest contrary to Supreme Court jurisprudence which clearly envisions an interest “derived from the owner” (less than ownership but more than a mere guest or member of the general public).
4. The trial court erred in granting summary judgments even against those buyers/processors who presented issues of fact as to an actual “ownership” interest in crawfish ponds from which they would have supplied crawfish top their respective businesses, “but for” Defendants’ negligent acts and egregious conduct.
175. The trial court erred in granting summary judgments even against those buyers/processors who demonstrated long standing, symbiotic relationships with the farmers/fishermen and reasonable, recurring and investment-based expectations of an economic interest in the annual crawfish crops which, as a matter of law, made their damages particularly foreseeable and established material issues as to the existence of a sufficient interest to be worthy of legal protection. 6. The trial court committed manifest error by concluding that even the claims of “hybrids” should be summarily dismissed because many of them had “settled” their claims in a companion Class Action settlement in 2004 between these Defendants and the farmer/fishermen group of claimants, even though the final judgment in that matter expressly reserved the right of all settling farmers/fishermen “to pursue their respective claims as buyers and/or processors of crawfish.”

Defendants contend that this Court’s previous decision in Phillips I has already decided the legal issues raised in this appeal, and thus, the “Law of the Case” doctrine applies.

ANALYSIS

A. Law of the Case Doctrine.

We will first address Defendants argument that this Court’s decision in Phillips I is law of the case, and should not be revisited. For the following reasons, we do not find the law of the case doctrine applicable here.

Generally, the law of the case doctrine applies to prior rulings of the appellate court and an appeals court will not reconsider its own ruling in the same case. Gentry v. Biddle, 05-61 (La.App. 3 Cir. 11/2/05), 916 So.2d 347. However, the application of this doctrine is discretionary and an appellate court may reconsider an issue if the prior decision was “palpably erroneous or its application would result in manifest injustice.” Id. at 352 (quoting Griggs v. Riverland Med. Ctr., 98-256, p. 6 (La.App. 3 Cir. 10/14/98), 722 So.2d 15, 19, writ denied, 99-385 (La.5/28/99), 735 So.2d 622).

We note that earlier in the procedural history of this case, Defendants filed an exception of no cause of action asserting, for Plaintiffs to maintain a delictual action, they must first demonstrate some proprietary interest in the damaged property. The Istrial court overruled the exception, rejecting the per se exclusionary/proprietary interest rule of Robins Dry Dock in favor of the policy driven duty/risk analysis set forth by the Louisiana Supreme Court in PPG Industries. A three member panel of this Court unanimously denied writs, finding no error in the trial court’s decision. However, on appeal a five-judge panel (with one dissenting judge) reached an opposite conclusion, finding “the plaintiffs case [sic] must fail” because they “failed to prove a proprietary interest in the crawfish crop.” Phillips I, 10 So.3d at 344. Finding this Court’s previous rulings on this issue are equivocal, we choose not to apply the law of the case doctrine.

B. Proprietary Interest.

We initially make the following observations at the outset of our discussion on proprietary interest: (1) the trial court unquestionably based its ruling granting the summary judgments solely on this Court’s prior decision in Phillips I, 10 So.3d 339; (2) although the opinion in Phillips I, discussed PPG and the duty-risk method, it did not engage in any such duty-risk analysis; instead it resurrected the bright-line litmus test that required a proprietary interest in the damaged property that was abrogated in PPG.

The issue in this case boils down to whether Louisiana will apply a bright-line litmus test mandating proprietary interest in damaged property as a prerequisite to recovery, or do Louisiana courts apply a multi-factor, policy-driven, duty-risk analysis when determining the scope and extent of a defendant’s duties under the Louisiana Products Liability Act for particularly foreseeable economic damages. Finding our previous opinion in Phillips I failed to consider the instruction of the Louisiana Supreme Court’s opinion in PPG, which directed that a duty-risk analysis should be | ^performed to determine the scope and extent of a particular defendant’s duties, we decline to follow it, and instead adhere to the dictates of our state’s highest judicial court. We find the course of action taken in Phillips I, can, in certain instances, deprive an innocent person of any remedy for damage suffered in direct contrast to our fundamental civil law principal that obliges a person to fully repair damage caused by his fault. La.Civ.Code art. 2315.

Our review of the jurisprudence of this State indicates that the per se exclusionary/proprietary interest rule illustrated in Robins Dry Dock, is not the law of this state. Rather, a duty-risk analysis was adopted by the Louisiana Supreme Court in PPG.

In PPG, the defendant’s dredging operations damaged a gas pipeline owned by Texaco. Texaco had a contract to supply gas to PPG. As a result of the damage to the pipeline, PPG was forced to obtain gas from other sources. PPG sued Bean Dredging, seeking recovery of the additional costs expended to obtain gas. Although the supreme court ultimately held PPG’s damages did not fall within the scope of the duty not to damage a pipeline owned by Texaco, it did so after undertaking a duty-risk analysis to determine whether that particular risk fell within the scope of the duty. The court stated:

Policy considerations determine the reach of the rule, and there must be an ease of association between the rule of conduct, the risk of injury, and the loss sought to be recovered. Hill v. Lundin & Assoc., Inc., 260 La. 542, 256 So.2d 620 (1972). A judge, when determining whether the interest of the party seeking recovery of damages is one that falls within the intended protection of the rule of law whose violation gave rise to the damages, should consider the particular case in the terms of the moral, | insocial and economic values involved, as well as with a view toward the ideal of justice. See Entrevia v. Hood, 427 So.2d 1146 (La.1983).

PPG Indus., Inc., 447 So.2d at 1061.

The court in PPG did caution that a party who negligently causes injury to property will not always be held legally responsible to all persons for all damages flowing in a “but for” sequence, because the list of possible victims might be “expanded indefinitely.” Thus, the court must “necessarily make a policy decision on the limitation of recovery of damages.” Id. at 1061-62.

In his dissent in PPG, Justice Calogero “applaud[ed] the majority’s applying a duty risk analysis in the consideration of tort recovery ... and [in] abandoning the per se exclusion of such damages which our courts have heretofore adopted on the heels of Robins and Forcum-James [Co. v. Duke Transportation Co., 231 La. 953, 93 So.2d 228 (1957) ].”

The cases since have consistently followed the duty-risk analysis set forth in PPG. In Cleco Corp. v. Johnson, 01-175 (La.9/18/01), 795 So.2d 302, a negligent truck operator backed into a utility pole causing a power surge that ultimately caused damages to the property of Cleco’s customers. Cleco then paid for the customers’ damages and filed suit to recover those payments. The supreme court examined whether the law afforded Cleco’s customers a cause of action. The supreme court utilized the case by case, duty-risk analysis set forth in PPG, and found that the law extended a remedy to both Cleco and its customers. In her concurring opinion, Justice Kimball specifically noted “[t]he majority today has chosen to handle these claims on a case by case basis using the duty-risk analysis, which in my view is the preferable approach.” Id. at 307. Even the dissent in Cleco did not question the majority’s | ¶1 decision to utilize a duty-risk analysis as set forth in PPG, but rather believed the duty allegedly violated in that case did not encompass the particular risk of injury sustained by Cleco and/or its customers.

The court in Cleco, cited with approval this Court’s decision in Istre v. Fidelity Fire & Casualty Ins. Co., 628 So.2d 1229 (La.App. 3 Cir.1993), writ denied, 634 So.2d 852 (La.1994). In Istre, a backhoe operator working for a construction company came into contact with electrical lines causing a power outage that knocked out electrical power to a traffic signal four miles away. Approximately one hour later, the plaintiff was involved in an accident due to the traffic light outage. The plaintiff subsequently filed suit against several parties, including the construction company. After utilizing a duty-risk analysis, this Court found the construction company liable, stating:

The construction company’s main argument is that its duty to avoid knocking out electrical power does not extend to the risk that one hour later, a driver at an intersection four miles away, will fail to see that traffic lights are not working and that other drivers were treating the intersection as a four-way stop, out of turn, and hurt another driver who was entering the intersection in obedience to a four-way stop rotation. To this it pleads that the company could not have known that engaging this one power line would create a general outage affecting signal lights four miles away.
We reject this argument. This backhoe operator knew the risk of his backhoe knocking out power. His construction company knew or should have known the risks to people and property caused by power outages, and the predictability of widespread effects and delays in restoring power. The increased risk of an accident caused by this defendant’s conduct was still present when the accident occurred. This accident to this plaintiff was reasonably foreseeable. This defendant is liable to the plaintiffs for the breach of its duty.

Id. at 1232.

As noted by Judge Saunders in his dissent in Phillips I, the supreme court in 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 234 (La.1989), specifically found that “the PPG case abrogated] the rule that flatly prohibited recovery for intangible economic loss produced by negligent conduct.”

In Roberts v. Benoit, 605 So.2d 1032 (La.1991), the supreme court reiterated that the extent of protection owed a particular plaintiff is determined on a case-by-case basis to avoid making a defendant an insurer of all persons against all harms. The Roberts court found that “[rjegardless if stated in terms of proximate cause, legal cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty.” Id. at 1044.

We also note the comments of several commentators, that have expressed both the conclusion that PPG’s utilization of a case by case duty-risk analysis is the law in Louisiana, and that it is the preferable approach. Justice Dennis, in his opinion in Pitre v. Opelousas General Hospital, et al., 530 So.2d 1151, 1155-56, citing Prosser and Keeton, stated:

The duty risk approach is most helpful, however, in cases where the only issue is in reality whether the defendant stands in any relationship to the plaintiff as to create any legally recognized obligation of conduct for the plaintiffs benefit.

Plaintiffs also call this Court’s attention to the following language from a leading treatise on tort law in this state:

Neither a blanket denial nor an unlimited approval of recovery is appropriate. One of the fears is that allowing recovery may subject defendants -to liability for an indeterminate amount of damages to a potentially indeterminate class of claimants. Another is that in some cases, allowing recovery will result in double compensation because the plaintiff has already protected himself from the risk of the economic harm through contract, such as insurance, indemnity or the increased price for his goods. Also, in some cases, the economic harm the plaintiff suffers is an ordinary risk of the enterprise in which he is participating. However, where none of these factors is justified, recovery should be permitted. Thus a case-by-case analysis appears superior to the Robins “no duty” rule.

Frank L. Maraist & Thomas C. Galligan, Louisiana Tort Law, § 5.09 (1996).

Our review of the jurisprudence establishes that the Louisiana Supreme Court |isin PPG, and the cases that followed, abandoned the per se no duty rule espoused in Robins Dry Dock and Forcum-James in favor of a duty-risk analysis. Rather than “taking a mechanical approach to the unreasoned conclusion that the petition for economic loss caused by negligent interference with contractual relations fails to state a cause of action,” the supreme court concluded a more nuanced, case specific, duty-risk analysis was preferable. PPG, 447 at 1061. PPG clearly shows the supreme court did not intend to close the door to recovery for all claims of economic harm arising out of damage to what is technically a third person’s property, i.e., “proprietary interest.” It made such recovery available in certain circumstances for limited groups of people with a special interest in or relationship with the damaged property, whose damages were a particularly foreseeable result of the tor-tious conduct of the defendant. Although the opinion in Phillips I discussed PPG and its utilization of a duty-risk method of analysis, the court failed to perform any such duty-risk analysis, and instead concluded the “plaintiffs’ cause must fail” because they failed to prove a proprietary interest in the damaged property. Phillips I, 10 So.3d at 344. This was contrary to the law.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s grant of the summary judgments because a per se proprietary interest rule is not the law of Louisiana in a products liability case. Our Louisiana Supreme Court in PPG Indus. Inc., 447 So.2d 1058, mandates a case specific duty-risk analysis be undertaken to determine the scope and extent of the defendants duties in this case. As the trial court based its granting of the summary judgments solely on this Court’s opinion in Phillips 1, we now reverse and remand this case back to the trial court for further proceedings consistent with this opinion. As this case is before us on grants of summary judgment, it is not appropriate 114for this Court to determine or even speculate on the result of the required duty-risk analysis. Our determination on this issue renders Plaintiffs’ other assignments of error moot. All costs of this appeal are assessed to Defendant-Appellees.

REVERSED AND REMANDED.

THIBODEAUX, Chief Judge, concurs and assigns additional reasons.

THIBODEAUX, Chief Judge,

concurring for additional reasons.

|TI fully agree with the majority opinion. I add this brief comment to provide an additional reason for reversal. While I do not agree that the proprietary interest rule is the law in Louisiana, the plaintiffs did not attempt to prove proprietary interest in Phillips I. This case is properly remanded to allow them to prove that standard, if they choose to do so, as an additional supplement to a duty-risk analysis.

      . There was also a corollary federal action in the United States District Court, Western District of Louisiana, Wiltz, et al. v. Bayer Crop-Science, et al., Docket No. 08-2024, which arises from the exact same set of facts as the present case and concerns the same question regarding the scope of the defendants’ duty. The Wiltz case previously came to this Court as an appeal from the denial of a Motion to Intervene in Phillips. The Wiltz intervention in Phillips was ultimately denied by this Court. See Phillips v. G & H Seed Co., 09-1102 (La.App. 3 Cir. 3/10/10), 32 So.3d 1134, writ denied, 10-822 (La.6/18/10), 38 So.3d 325. The matter was then removed by the defendants to federal court. The defendants then filed a motion for summary judgment on the alleged lack of a proprietary interest in the plaintiffs. Much as the trial court did in the present case, the federal district court judge granted the motion for summary judgment even though he did not believe a bright line litmus test on proprietary interest was the correct law in Louisiana. The district judge explained in detail why he felt compelled to grant the summary judgment:
      MR. STEVENS (counsel for Plaintiffs): I would like this Court to rule that the motions for summary judgment by the defendants based strictly on the proprietary interest rule is denied because proprietary interest is not the law of the Louisiana Supreme Court. In a products liability case, which must apply a duty/risk analysis under controlling jurisprudence, it is particularly foreseeable that these folks would be injured, therefore, they are within the scope of the duty of this defendant not to negligently kill the crawfish crop that these folks spent 30 years helping to develop....
      THE COURT: Then let me state this for the record. I agree with that statement. However, if I do that, I’m going to get reversed by the Fifth Circuit. I agree with it. I agree with everything you had to say.
      I would also recommend to the Fifth Circuit, when you take your appeal, that you ask them to certify this to the Supreme Court and they can get a final ruling on this issue.
      I agree with everything you have to say. I agree with all of it. I agree with Judge Hebert.
      MR. STEVENS: The question is as a matter of law what is the law of the Louisiana Supreme Court? Is it duty/risk analysis or is it proprietary interest? And—
      THE COURT: I think if I rule your way, I'm going to get reversed. I’m inviting you to take it to the Fifth Circuit. My opinion is that you’re absolutely correct. I do think they have a proprietary interest.
      MR. STEVENS: Well, then—
      THE COURT: Listen to me, Mr. Stevens.
      MR. STEVENS: I’m sorry.
      THE COURT: You know, I’m going to rule against you. What I’m trying to do is give you some information so that when you take it up, you can say, you know. Judge Haik did this because he got slapped on the wrist by the Court pertaining to Taira Lynn. And I think he was wrong in doing that because that was a maritime case and this belongs to Louisiana — this is a Louisiana driven cause of action, not a maritime driven cause of action. Therefore, I think Judge Haik is wrong. Okay?
      So do that, Mr. Stevens. Do that

      . We are cognizant that the Supreme Court denied writs in Phillips I. However, even though writs were denied, there was, of course, no discussion by the Supreme Court explaining the reasons for the writ denial. In contrast, we have the Supreme Court opinion in PPG Industries, which as Justice Dennis later noted in 9 to 5 Fashions, 538 So.2d at 234, "abrogat[ed] the rule that flatly prohibited recovery for intangible economic loss produced by negligent conduct.” We choose this day to follow the express dictates of PPG Industries rather than the implied message of a writ denial in Phillips.

      . Justice Calogero dissented, not because of the implementation of a duty-risk analysis, but rather because he disagreed with the majority’s determination that PPG's economic loss, from added fuel cost, was not a risk encompassed within the duty not to negligently injure Texaco’s pipelines.


author: TERRI F. LOVE, Judge.

text:
    Selena Scifo FORNERETTE, Individually and as Executrix of the Succession of Marguerite Scifo Graff, and Randy Scifo v. Kenneth V. WARD and Rosemary E. Ward.
    No. 2010-CA-1219.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 2011.

      Robert H. Matthews, Pauline M. Warri-ner, Matthews & Warriner, L.L.C., New Orleans, LA, for Selena Scifo Fornerette, Individually and as Executrix of the Succession of Marguerite Scifo Graff, & Randy Scifo.
    Vallerie Oxner, Metairie, LA, for Kenneth V. Ward & Rosemary E. Ward.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   TERRI F. LOVE, Judge.

| ,This appeal arises from a dispute regarding the actions of an executrix and an attorney for the executrix of a succession. The trial court found that the attorney for the succession charged $24,500 in excessive fees and ordered repayment. The trial court also dismissed a reconventional demand filed by the executrix seeking her commission. We find that the trial court did not err in finding that the attorney charged excessive fees after weighing conflicting testimony and affirm. We also find that the trial court correctly dismissed the executrix’s reconventional demand due to its finding that the executrix “acted imprudently regarding certain succession property” and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Marguerite Scifo Graff (“Decedent”) died on August 27, 2006. The Decedent’s last will and testament appointed Kenneth Ward as the attorney for the Succession and the executrix, and appointed his wife, Rosemary E. Ward (collectively referred to as the ‘Wards”), as the executrix of the Succession. Mr. Ward filed pleadings to open the Succession in the Twenty-Fourth Judicial District for the Parish of Jefferson (“24th JDC”). The sworn descriptive list (“List”) documented $809,682.13 in cash assets, but failed to include immovable property 12the Decedent co-owned with one of her grand-nephews and thirty-five bags of jewelry in Mrs. Ward’s possession. Mr. Ward took no action to pay the mortgage on the immovable property and it was foreclosed upon.

Mr. Ward filed a judgment of possession, which awarded $126,946 to each of the residuary legatees, Selena Scifo For-nerette and Randy Scifo (collectively referred to as the “Residuary Legatees”). However, Mr. Ward later filed an amended judgment of possession, which sought to withhold the money from the Residuary Legatees, and alleged that the Succession may become liable to Countrywide Home Loans, Inc. in the foreclosure proceedings. Then, Mrs. Ward, as the executrix of the Succession, petitioned for permission to pay Mr. Ward an additional $37,000 in attorney’s fees for over 150 hours of alleged work on the Succession. After Mr. Ward was awarded payment, the Residuary Legatees filed a motion to remove executrix and for accounting. Mrs. Ward was removed and Ms. Fornerette was appointed as the new executrix, whereupon she fired Mr. Ward.

The Residuary Legatees then filed a petition for damages in Orleans Parish against the Wards alleging that Mr. Ward’s actions fell below the standard of care of attorneys practicing in the community. The petition also alleged that Mrs. Ward paid excessive legal fees to the Succession attorney and breached her duty to the heirs and legatees to the Decedent’s estate. The Wards filed an exception of [.-¡prematurity because no action for a deficiency judgment was filed. The Wards filed an answer, which included a recon-ventional demand by Mrs. Ward seeking the payment of an executrix commission. Following a trial, the trial court awarded the Residuary Legatees a judgment of $24,500, plus interest from the date of judicial demand. The trial court also found that Mrs. Ward “acted imprudently regarding certain succession property” and dismissed her reconventional demand with prejudice. The Wards filed a timely motion for a suspensive appeal.

The Wards assert that the trial court erred in not finding that the Residuary Legatees’ petition was an impermissible collateral attack, by finding that Mr. Ward charged an excessive amount of attorney’s fees, and by dismissing Mrs. Ward’s recon-ventional demand.

STANDARD OF REVIEW

This Court may not set aside findings of fact of the trial court unless we find that the findings were manifestly erroneous or clearly wrong. Allerton v. Broussard, 10-2071, p. 3 (La. 12/10/10), 50 So.3d 145, 147. As the appellate court, we “must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous” in order to reverse the trial court. Id. If the trial court’s findings were reasonable, no manifest error exists. Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). “[R]easonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.” Id.

‘‘However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable.” Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 735. “[I]f the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence.” Id. “A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial.” Hamp’s Constr., L.L.C. v. Hous. Auth. of New Orleans, 10-0816, p. 3 (La.App. 4 Cir. 12/1/10), 52 So.3d 970, 973. “Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights.” South East Auto Dealers Rental Ass’n, Inc. v. EZ Rent To Own, Inc., 07-0599, p. 5 (La.App. 4 Cir. 2/27/08), 980 So.2d 89, 93.

Legal questions are reviewed utilizing the de novo standard of review. Cherry v. Audubon Ins. Co., 09-1646, p. 4 (La.App. 4 Cir. 10/20/10), 51 So.3d 109, 113.

COLLATERAL ATTACK

The Wards assert that the petition filed by the Residuary Legatees constituted an impermissible collateral attack on the order in the 24th JDC, which awarded Mr. Ward’s attorney’s fees. “A collateral attack is defined as an attempt to impeach a decree in a proceeding not instituted for the express purpose of annulling it.” Lowman v. Merrick, 06-0921, p. 10 (La.App. 1 Cir. 3/23/07), 960 So.2d 84, 90.

Conversely, the Residuary Legatees contend that the claim of excessive attorney’s fees must be included in the petition for damages due to the doctrine of res judicata. “A party shall assert all causes of action arising out of the transaction Lor occurrence that is the subject matter of the litigation.” La. C.C.P. art. 425.

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

La. R.S. 13:4231.

The Residuary Legatees allege in their petition that Mr. Ward committed legal malpractice while handling the Succession, that he did not earn $39,500 in attorney’s fees, that he “failed to preserve and manage assets of the succession and obtained a judgment of possession improperly.” Succinctly, the Residuary Legatees asserted that Mr. Ward fell “below the standard of care for attorneys practicing in this community” and sought damages accordingly. Their petition does not seek to invalidate or nullify the judgment of the 24th JDC.

We find that the Residuary Legatees had to include the claim for excessive attorney’s fees along with their claims for damages and assertion of conflicts of interest or the final judgment in the case sub judice would have barred the claim. Once a final judgment was rendered based upon the petition for damages, all of the possible claims by the Residuary Legatees would be extinguished. Further, the trial court did not attempt to invalidate the judgment from the 24th JDC and stated:

I am not going to take up certainly Judge Regan’s | judgment. What I would think would be relevant herein is Ms. Cook’s opinion as to the billing practice itself, not to the end result. That’s for the Court to determine whether it was reasonáble or not, if I decide to take that up. And not to be in contravention of Judge Regan’s judgment, because I agree, it’s already been ruled on. But I will entertain a process opinion.

Accordingly, we do not find that the Residuary Legatees’ suit was a collateral attack.

EXCESSIVE ATTORNEY’S FEES

The Wards contend that the Residuary Legatees did not prove that Mr. Ward’s attorney’s fees were excessive and that the trial court did not specify the amount of hours or which hours were needlessly charged.

Mr. Ward testified that he practiced law for over fifty-six years, but was retired from the practice of law when he served as the attorney for the executrix and the Succession. He prepared the Decedent’s last will and testament, which named Mrs. Ward as the executrix. Mr. Ward stated that the Decedent was essentially debt free except for the mortgage on the co-owned immovable property. He testified that he knew of the mortgage. However, he did not include the mortgaged property on the List because: 1) he did not want to spend $600 on an appraisal, 2) the foreclosure process had begun, and 3) the Decedent no longer wanted to pay the mortgage prior to her death. Mr. Ward also testified that he omitted the thirty-five bags of jewelry from the List to avoid the appraisal fee.

Mr. Ward testified that he worked approximately fifteen hours arranging the funeral and burial, prior to opening the Succession. He stated that he spent at least seven hours opening a checking account and disagreed that the previously mentioned functions were responsibilities of the executrix. Further, Mr. Ward testified that he spent at least twenty hours on two complaints filed by George 17Scifo, Jr. to the Louisiana Disciplinary Board. In regards to the deposition of Mrs. Ward, required by Mr. Seifo, Jr., Mr. Ward billed six hours for conferencing with David Browne, Mrs. Ward’s attorney, prior to the deposition, and eight hours for attending the deposition. Mr. Ward billed twenty-five hours for preparing the documents for the probate of the will, travel, filing, and waiting for the judge to sign the pleadings. Mr. Ward’s notes also reflect that he charged six hours for preparing three checks and attending one meeting with some of the Decedent’s relatives.

The remainder of Mr. Ward’s notations chronicles the procedure by which he calculated his charge for a total of 151 hours. Mr. Ward charged an hourly rate of $261.60. He charged for an entire hour even if he only worked forty-five minutes of the hour. Mr. Ward was unsure whether he totaled the bill of $37,000 first or the hourly rate. Mr. Ward testified that his initial plan was to charge five percent of the assets of the Succession, which he valued at approximately $15,000.

Byron Ann Cook, an attorney and the Residuary Legatees legal expert in probate and taxation, testified that her opinion was that “Mr. Ward’s conduct was below the standard of care in” the community. Ms. Cook stated that Mr. Ward failed to include all of the Decedent’s assets in the List, petitioned for the judgment of possession without discussing it with the legatees or the relatives, and that he petitioned the court for the amended judgment of possession in March 13, 2007, without a hearing. She further stated that the judgment of possession was improperly amended.

IsUpon reviewing Mr. Ward’s bill, Ms. Cook concluded that “a number of items ... were inappropriately billed to the estate.” That included billing fifteen hours for the funeral arrangements, which were not legal services. Ms. Cook also testified that she would have billed less than twenty-five hours for the preparation of the petition for probate and the affidavits of death and heirship. As for opening a checking account for the Succession, Ms. Cook stated that the work should have been performed in about an hour by the executrix in accordance with La. C.C.P. art. 3222. Ms. Cook would not have included Mrs. Ward’s personal defense as a debt of the Succession. Additionally, Ms. Cook would not have charged the Succession for items occurring pre-death/succession, for the time required to defend the disciplinary complaints, or for the petition to annul the Decedent’s pre-death transfers. Ms. Cook also testified that the checks are typically prepared by the executrix, but that the check preparation should have taken about fifteen minutes. Ms. Cook stated that Mrs. Ward’s deposition was not an expense of the Succession because she was not sued in her capacity as executrix, but in her capacity as a mandate of the Decedent.

Ms. Fornerette testified that the Decedent prearranged her burial and made all arrangements. Ms. Fornerette also stated that Mr. Ward sought to disburse $100,000 to each of the Residuary Legatees instead of $126,946 each because he did not know if the Succession would be liable for additional funds on the mortgaged property.

When determining the reasonableness of an attorney’s fee, we may evaluate:

(1) The time and labor required, the novelty and |9difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) Whether the fee is fixed or contingent.

State, Dep’t of Transp. and Dev. v. Williamson, 597 So.2d 439, 442, n. 9 (La.1992), quoting Rule 1.5(a) of the Rules of Professional Conduct. When considering the above factors, we do not find that the trial court erred in ordering Mr. Ward to disgorge $24,500 of his attorney’s fees. First, the trial court was presented with conflicting testimony regarding the difficulty of the work and the amount of time required to perform the services. Further, the Residuary Legatees’ expert stated that Mr. Ward charged the Succession for some of Mrs. Ward’s responsibilities as the executrix of the Succession. Second, the Succession work did not preclude Mr. Ward from undertaking any other legal work, as he was retired. Further, the trial court found:

[t]he Courts finds, considering the evidence, the hours accumulated by Mr. Ward to be excessive. Mr. Ward claimed that he spent 151 hours on the Succession of Mrs. Marguerite Graff at $261.00 an hour. Many of these hours, however, were unnecessary to probate Mrs. Graff’s will. Some of Mr. Ward’s time entries should not have been charged to the succession. These entries include Mr. Ward’s answers to complaints lodged with the Louisiana State Bar Association by George Scifo Jr., as well as Mrs. Ward’s deposition that was taken in preparation of this matter. The Court does not find the hourly rate to be outrageous given Mr. Ward’s experience. Considering the foregoing, the Court finds a reasonable amount of fees earned by Mr. Ward to be $15,000.00. Mr. Ward is ordered to disgorge $24,500.00 in collected fees related to the Succession of Mrs’. Marguerite Scifo.

| ]0Given the conflicting testimony presented to the trial court, we do not find that the trial court manifestly erred by ordering the disgorgement of $24,500 of Mr. Ward’s attorney’s fees.

COMMISSION OF EXECUTRIX

Lastly, Mrs. Ward contends that the trial court erred by denying her reconventional demand for an executrix commission pursuant to La. C.C.P. art. 3351.

The statute provides that when the testament fails to provide for compensation, “the administrator or executor shall be allowed a sum equal to two and one-half percent of the amount of the inventory as compensation for his services in administering the succession.” La. C.C.P. art. 3351. The usage of the word “shall” connotes “must” in Louisiana’s legislative enactments. However, this Court held that “[a] succession representative has no absolute right to the executor’s fee provided for in La. C.C.P. art. 3351 until he has completed the administration of the succession and has filed his final account.” Succession of Vazquez, 07-0816, p. 7 (La.App. 4 Cir. 1/16/08), 976 So.2d 209, 215. This Court further affirmed the trial court’s holding that an executor who failed to perform his duties and violated his position was not entitled to a commission. Id. We stated that the trial court’s determination was a factual one. Id.

The trial court in the case sub judice found that Mrs. Ward “acted imprudently regarding certain succession property.” Further, the trial court found that the “weight of the evidence clearly established] a conflict of interest” between Mr. and Mrs. Ward. Finally, the trial court found “Mrs. Ward liable for. conflict of |ninterest as executrix of the Succession of Marguerite Scifo Graff by approving excessive attorney’s fees.”

Mrs. Ward did not complete the Succession, as discussed in Vazquez. In fact, she was removed as the executrix. We do not find that the trial court erred in its factual findings that Mrs. Ward acted imprudently and had a conflict of interest. Therefore, we affirm the dismissal of Mrs. Ward’s reconventional demand.

DECREE

For the above mentioned reasons, we find that the trial court did not err and affirm the disgorgement of attorney’s fees and the dismissal of Mrs. Ward’s recon-ventional demand seeking an executrix commission.

AFFIRMED

      . Mr. Ward previously received $2,500 in attorney's fees.

      . The motion to remove executrix and for accounting alleged that Mrs. Ward "failed to account for assets of the estate,” "failed to include assets in the Descriptive List,” took “possession of and exercised control over succession properties prior to the conclusion of the administration of” the succession, "failed to preserve and manage assets of the succession,” "obtained a judgment of possession improperly,” "paid her husband excessive legal fees as her attorney out of funds which were withheld in a judgment and an amended judgment of possession,” and "otherwise breached her fiduciary duties to the heirs and legatees in the above respects, all independently and in contravention of the provisions of LSA-C.C.P. Art. 3182.” Further, the motion alleged that Mrs. Ward, through Mr. Ward was "unresponsive to repeated requests for information concerning the decedent’s accounts and other properties” and "stated to certain heirs and legatees on more than one occasion that they will use the remaining succession assets if anyone attempts to challenge their actions or seek to remove her as executrix and her husband at [sic] attorney for the succession.”

      .The judgment removing Mrs. Ward as executrix is not contained in the record, but her formal removal is undisputed.

      . The Wards did not file a declinatory exception asserting that the matter was not properly before the trial court. Mrs. Ward did file a reconventional demand.

      . The deposition was in relation to pre-death transfers and not regarding Mrs. Ward’s capacity as executrix.

      . The handwritten notes on the typed sheets entered into evidence show that the total number of hours Mr. Ward alleged worked, 151, was divided into $39,500, which created the $261.60 hourly rate. However, the handwritten hourly notes document that Mr. Ward multiplied 151 hours by $262, which equaled $39,562.00. Thus, it is unclear from the evidence if Mr. Ward calculated his hourly rate prior to the lump sum amount of attorney’s fees.

      .Ms. Cook is board certified in estate planning and administration and board certified in taxation.

      . On November 9, 2005, the Decedent appointed Mrs. Ward as her agent to perform the following: 1) “[t]o open all correspondence addressed to me,” 2) "[t]o prepare checks and draw needed money from any bank bank [sic] account to pay my bills only,” 3) ”[t]o deposit any dividends or funds received to my bank account,” 4) ”[t]o perform whatever acts that may be necessary for my general well-being and to preserve my assets,” and 5) “[t]o reinvest my certificates of deposit when they mature.”

      . The Wards assert that it was "unclear” how the trial court calculated the disgorgement figure of $24,500. However, as stated above, $39,500 minus $24,500 equals $15,000, approximately five percent of the assets of the Succession.


author: PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Sherman TOLBERT.
    No. 2010-KA-1453.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Barksdale Hortenstine, Jr., Orleans Public Defenders, New Orleans, LA, for Defendant/Appellant, Sherman Tolbert.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   PATRICIA RIVET MURRAY, Judge.

|,In this is a criminal appeal, the defendant, Sherman Tolbert, appeals his conviction and sentence. The sole issue presented is whether the district court erred by denying Mr. Tolbert’s motion to quash. The basis for his motion to quash was his contention that the statute under which he was charged, La. R.S. 40:966(E), is unconstitutional in that it allows the State to use a prior misdemeanor conviction obtained without the right to a jury trial to increase the statutory maximum penalty for a second offense in violation of the United States Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and the Louisiana Supreme Court’s holding in State v. Brown, 03-2788 (La.7/6/04), 879 So.2d 1276. Finding the statute constitutional and finding no errors, we affirm.

STATEMENT OF THE CASE

On December 2, 2009, the State of Louisiana charged Mr. Tolbert with one count of possession of marijuana, second offense, in violation of La. R.S. 40:966(E)(2). On March 24, 2010, Mr. Tolbert pled not guilty when he appeared at his arraignment. On May 13, 2010, Mr. Tolbert orally moved to quash the |2charge against him, contending that La. R.S. 40:966(E) is unconstitutional. The district court denied the motion. Mr. Tolbert then withdrew his prior plea of not guilty and pled guilty as charged, reserving his right under State v. Crosby, 338 So.2d 584 (La.1976), to appeal the denial of his motion to quash the bill of information. He waived all delays, and the district court sentenced him to six months in parish prison, suspended; placed him on six months inactive probation; and imposed a $100 fine. The next day, defense counsel filed a written motion to quash based on the same ground that he alleged orally in open court.

STATEMENT OF THE FACTS

The facts of the underlying offense are not pertinent to the resolution of Mr. Tol-bert’s assignment of error. Because he pled guilty, the following brief factual summary is taken from the gist of the police report contained in the appeal record. On November 25, 2009, police officers saw Mr. Tolbert impeding the flow of traffic in the 1300 block of Marigny Street. As the officers exited their police vehicle, Mr. Tol-bert threw down an object. The officers retrieved the object, which was a bag containing a substance consistent with marijuana. They arrested Mr. Tolbert and field-tested the object, the result of which was positive for marijuana. Mr. Tolbert was previously convicted of possession of marijuana.

DISCUSSION

ERRORS PATENT

A review of the record for patent errors reveals none.

ASSIGNMENT OF ERROR

By his sole assignment of error, Mr. Tolbert asserts that the district court erred by denying his motion to quash the bill of information, in which he alleged that the statute under which he was charged, La. R.S. 40:966(E), is unconstitutional. As noted at the outset, his contention is that the holdings in the Apprendi and Brown cases mandate a finding that La. R.S. 40:966(E) is | ^unconstitutional because the statute allowed the State to increase the maximum sentence to which he was exposed based upon at least one prior misdemeanor conviction for which he was not entitled to a jury trial. Mr. Tolbert acknowledges that this argument was rejected by the Louisiana Supreme Court in State v. Jefferson, 08-2204 (La.12/1/09), 26 So.3d 112. Nonetheless, he now raises this claim for this court’s reconsideration and to preserve the issue for possible future federal review.

Rejecting this argument, the Louisiana Supreme Court in Jefferson, supra, reasoned:

After reviewing the statute, the jurisprudence, and the constitutional provisions at issue, we find, contrary to the conclusion of the district court, that LSA-R.S. 40:966(E)(2) does not suffer from a constitutional infirmity. For the reasons set forth, we find that the Sixth and Fourteenth Amendments, as construed in Apprendi and Brown, do not preclude the sentence-enhancing use of a prior valid, fair, and reliable conviction of a misdemeanor, obtained against an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to trial by jury. Accordingly, we reverse the judgment of the district court granting the defendant’s motion to quash and declaring LSA-R.S. 40:966(E)(2) unconstitutional, and remand for further proceedings.

Jefferson, 08-2204 at pp. 1-2, 26 So.3d at 113. The Court quoted language from Ap-prendi that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. The Supreme Court in Jefferson interpreted “prior conviction” to apply to any prior conviction, whether or not the defendant had been entitled to a jury trial, noting that even when a defendant is charged with a misdemeanor, he “is entitled to all the procedural protections available to a defendant in a felony prosecution, with the exception of the right to a jury trial, which the U.S. Supreme Court has determined is not essential to fair and reliable fact finding in a misdemeanor case involving a petty or non-serious crime. Duncan v. Louisiana, 391 U.S. 145, 158, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (‘[W]e hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial and prosecuting petty crimes without extending a right to jury trial.’).” Jeffer son, 08-2204 at p. 12, 26 So.3d at 119. The Supreme Court then stated:

Our examination of the Apprendi line of cases convinces us that reliability, assured through proceedings that included all the procedural protections the Constitution requires for those proceedings, is the sine qua non for use of prior convictions to enhance a sentence under the “prior conviction” exception, and not the right to a jury trial. Indeed, it makes little sense to conclude, under Apprendi, that a judgment of criminality which the Sixth and Fourteenth Amendments deem fair and reliable enough, when rendered, to impose criminal penalties upon a defendant is nonetheless constitutionally inadequate for later use to establish the defendant’s recidivism.

Jefferson, 08-2204 at p. 13, 26 So.3d at 120.

In addition, as in the instant case, the defendant in Jefferson argued that a misdemeanor conviction should be treated the same as a juvenile adjudication, which the Supreme Court in Brown held could not be used to enhance a subsequent felony conviction because the adjudication resulted from a proceeding where the defendant was not entitled to a jury. Rejecting this argument, the Supreme Court in Jefferson refused to equate a misdemeanor adult conviction with a juvenile adjudication for enhancement purposes. The Supreme Court in Jefferson acknowledged that the lack of a jury trial was one of the factors that it relied on in the Brown case to exempt the use of juvenile adjudications in multiple bill proceedings. Nonetheless, the Supreme Court emphasized that its holding in Brown was grounded on the fundamental differences between an adult conviction and an adjudication of delinquency from a juvenile court, which “under the guise of parens patriae ... emphasize[s] treatment, supervision, and control rather than punishment.” Brown, 03-2788 at 19, 879 So.2d at 1289. The Supreme Court in Jefferson concluded:

In the final analysis, we find that Louisiana’s statutory scheme of increased punishment for recidivist marijuana possession is in line |swith the constitutional principles of Apprendi and its progeny, and does not conflict with our ruling in Brown, which is limited to juvenile adjudications and the unique nature of the juvenile justice system. More specifically, we find that the Sixth and Fourteenth Amendments, as construed in Ap-prendi and Brown, do not preclude the sentence-enhancing use, against an adult, of a prior valid, fair, and reliable conviction of a misdemeanor, obtained as an adult, where the misdemeanor proceeding included all the constitutional protections applicable to such proceedings, even though these protections do not include the right to trial by jury. Louisiana’s statutory scheme satisfies the requirement of due process because under the Sixth and Fourteenth Amendments, states are allowed the presumption that in petty crimes and offenses, trial judges are capable of reliable fact finding.

Jefferson, 08-2204 at p. 20, 26 So.3d at 124.

In several recent cases this has court rejected the same arguments as those raised by the defendant in the Jefferson case. State v. George, 08-1193 (La.App. 4 Cir. 3/11/10), 34 So.3d 941; State v. Odoms, 10-1278 (La.App. 4 Cir. 3/16/11), 62 So.3d 252; see also State v. Butler, 10-0330, p. 2 (La.App. 4 Cir. 5/12/10), 39 So.3d 752, 754 (granting counsel’s Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), motion to withdraw and noting that both this court and the Louisiana Supreme Court have rejected the argument that La. R.S. 40:966(E) is unconstitutional).

Summarizing, Mr. Tolbert’s contention is that given the holdings in the Apprendi and Brown cases any enhancement based on a misdemeanor conviction is unconstitutional. Both this court and the Louisiana Supreme Court have rejected this same contention. The district court thus did not err by denying Mr. Tolbert’s motion to quash based on this contention. This assignment of error has no merit.

DECREE

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED