author: MARION F. EDWARDS, Chief Judge.

text:
    Kyle and Michelle WALKER, individually and on behalf of their deceased Minor Daughter, Miranda Walker, and Jeremy Walker v. The LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. James and Alba Allen, individually and on behalf of their deceased Daughter, Tiffany Nicole Allen v. Parish of St. Charles and State of Louisiana through the Department of Transportation and Development.
    Nos. 10-CA-702, 10-CA-703.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.

      John G. Munoz, Garner & Munoz, New Orleans, Louisiana, for Plaintiffs/Appellants.
    Michael H. Ellis, Preston L. Hayes, Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, L.L.P., Me-tairie, Louisiana, for Plaintiffs/Appellants.
    James D. “Buddy” Caldwell, Attorney General, R. Vaughn Cimini, Stephen J. Laborde, Karen A. Arena, Special Assistant Attorney General, Cimini & Associates, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and ROBERT L. LOBRANO, Pro Tempore.
   MARION F. EDWARDS, Chief Judge.

| sPlaintiffs/appellants, Kyle and Michelle Walker, individually and on behalf of their deceased daughter, Miranda Walker (Miranda), and Jeremy Walker (Jeremy); and James and Alba Allen, individually and on behalf of their daughter Tiffany Nicole Allen (Tiffany), appeal a summary judgment in favor of defendant/appellee, State of Louisiana Department of Transportation and Development (DOTD), dismissing their suits.

The tragic accident, which is the subject of this suit, occurred on May 31, 2007. On that evening, Jeremy and a guest, Amanda Mertins (Amanda), were travelling north on Louisiana Highway 626 (La.Hwy.626) in St. Charles Parish. Following them in a separate vehicle was Tiffany, who was seventeen years old, and a guest passenger, Miranda, also seventeen. At some point, Tiffany began an attempt to pass Jeremy’s car, ultimately lost control of the vehicle, and swerved off |4the highway, coming to a rest in the adjacent swamp after hitting a tree. Both girls apparently drowned.

Both the Walker and Allen families (Walker/Allen) filed separate suits against the Parish of St. Charles and DOTD, alleging failure in the design and maintenance of the highway. The suits were consolidated. DOTD filed a motion for summary judgment, urging that Walker/Allen could not show that the roadway was unreasonably dangerous or defective. Following a hearing, the trial court rendered judgment in favor of DOTD, finding that nothing the DOTD did or failed to do in any way caused the accident.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(C)(2).

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Specifically, appellate | .^courts must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law.

In connection with its motion for summary judgment, DOTD submitted certain documents. In his deposition, Jeremy stated that, on the night of the accident, he was driving at about 60-65 miles per hour on a stretch of highway where the speed limit was 55. There are no lights there and the road is bumpy. Tiffany’s vehicle was right behind him and from the rear view mirror, Jeremy saw the car make a lane change and flip. In his statement attached to the police report, Jeremy stated he saw Tiffany lose control of her car. Jeremy’s passenger, Amanda, agreed in her deposition that Jeremy was driving about 65 miles per hour. In her written statement made in connection with the police report, she stated she saw the other car’s lights in the rearview mirror, and it started to pass, then hesitated. The next thing she knew, Jeremy told her the car had flipped.

An affidavit from the investigating officer, State Trooper Christopher LeDoux, stated that, at the time of the crash, the highway was dark. The posted speed limit was 55, with the nearest speed limit sign proceeding northbound posted approximately seven-tenths of a mile south of the crash scene. There were no improved shoulders on either side of the roadway, and there was swamp water on both sides. He determined that Tiffany lost control of her vehicle after attempting to pass Jeremy’s car. According to the affidavit, Jeremy and Amanda told him they were driving at about 60-65 miles per hour, and it was his opinion that Tiffany was speeding at 70 miles per hour at the time of the accident, making her unable to correct when she lost control of her car. It was further his opinion that Tiffany’s “poor driving strategy” and failure to maintain control of her vehicle were the sole | ^contributing factors in causing the crash and her subsequent death. The accident report was to the same effect.

The affidavit of Simone Ardoin (Ardoin), a civil engineer at DOTD, stated that La. Hwy. 626 was originally a rural “farm to market” road, which was rebuilt by DOTD in 1935. The project took the existing shell roadway and made the shell roadbed 24 feet wide, 10 feet of which was a single-travel lane. At that time, there were no Louisiana highway construction safety standards in effect. Several more projects improved the road between 1947 and 2008. In 1955, an extra one and one-half feet of shells was added to each side of the existing 24-foot>-wide shell roadbed, and Bituminous surface oil treatments with aggregate were applied over a 20-foot width of the roadbed, then used for two lanes of travel. In 1961, a 2.25 inch overlay was applied atop the existing travel lanes and aggregate surfacing was applied on top of the existing “3 foot average shoulders on each side.” The shoulders on the roadway were irregular. The last project on the road prior to this accident occurred in 1995, when 2.56 miles of the roadway were overlaid with asphalt, on the 22-foot width of the existing road. Eleven feet of travel lane was now provided, and aggregate surfacing was added to the shoulders. At this time, according to Ardoin, the roadway had shoulders of varying widths because of the irregular nature of the shoulders on this roadway; the actual size of the shoulders could be anywhere from one foot to six feet wide but without an actual survey it would be “real hard” to say the actual width of the shoulders. None of the projects were classified as, nor considered to be, major reconstruction by DOTD partly because they did not require topographic surveys, purchase of additional rights of way, or involve federal funds. In Ardoin’s opinion, the Bituminous surface oil treatments and asphalt overlays did not constitute major reconstruction. According to Ardoin, “Major Reconstruction” projects in St. Charles Parish typically took 17several years to design, develop and complete, and would have required a full topographic survey of the entire route, required upgrades of the vertical and horizontal geometry of the roadway, and required the purchase of additional right-of-way to satisfy modern design standards.

David M. Hall, a professional engineer and certified profession traffic operations engineer, was previously qualified as an expert in highway design, maintenance, safety construction, traffic engineering, and accident reconstruction. In his affidavit, he stated that he investigated the roadway on behalf of DOTD. He reviewed the accident report and photos, depositions, etc. In his opinion, La. Hwy. 626 has never been reconstructed since being brought into the roadway system and there is, therefore, no requirement to bring it up to current design guidelines. The section of the highway was not unreasonably dangerous, had been properly maintained, and was not a cause of the accident. There was a 55 mile per hour speed limit sign located .7 miles from the site of the accident, and the edge line, center line, and no passing markings were clearly visible, and would have been so to any vehicle with its headlights on at night. The traffic control signs and markings present were not inadequate or defective, but were appropriate for the roadway conditions. There was no roadway curvature that might create the need for “No Passing Zone” signage, the road striping was proper and adequate, and the shoulders were not defective. In his opinion, the cause of the accident was Tiffany’s excessive speed and her failure to maintain control of her vehicle.

Walker/Allen submitted the affidavit of Duaine T. Evans (Evans), an engineer qualified in Louisiana courts in accident reconstruction and traffic engineering, in opposing the motion. In his opinion, La. Hwy. 626 was significantly improved in 1955 and was, in fact, a major reconstruction. At that time, the geometry of the roadway was radically changed, and the travel surface |schanged from shell to surface treatment asphalt. The design standards that should have been applied at that time, those of 1947, required a minimum shoulder width of four feet. A 2001 DOTD survey showed the road had no shoulder width on the left and four feet on the right. At the time of the accident, the roadway had two-foot-wide shoulders that were only usable in dry weather or when the adjacent swamp water was not high. The photos taken at the time of the accident showed rutting and displacement of soil with little or no aggregate. The area adjacent to the accident site is described as a “grassy area.” DOTD should have been aware of poor shoulder conditions from March 1998, when the St. Charles Parish Council pointed out the need to widen the shoulders. In his opinion, DOTD should have performed the 1955 construction using guidelines that would have resulted in a minimum of 4-foot-wide aggregate shoulders, and the shoulders that existed were not inadequate for a 55 mile per hour road in any weather conditions. The west side shoulder existing at the time of the accident was incapable of supporting normal highway traffic properly. Evans concluded his affidavit stating, “It must be concluded that while the speed of this vehicle probably played a part in the path the vehicle ultimately followed, it must also be concluded that the inadequate shoulder also played a part in not providing a reasonable, safe recovery area.”

Scott Rome, a maintenance specialist employed at DOTD, testified in his deposition that there was an occasion when a state-owned tractor had to be pulled out of the water in the road in the area of the accident; the tire closest to the highway was on the edge of the water, and the other tire was further out. The tractor driver drove off into the swamp while he was moving. If you pulled four feet off the highway, you would have gotten stuck or pulled into the water.

For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a | ¡)Specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause in fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element).

The question of whether a duty exists is a question of law. However, breach of duty, cause in fact, and actual damages are all factual issues. In its finding that nothing DOTD did or failed to do caused the accident, the trial court made an impermissible material factual determination on summary judgment.

DOTD has a duty to maintain the public roadways, including adjacent shoulders and areas in the DOTD’s right-of-way, in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. This duty, however, does not render DOTD the guarantor for the safety of all of the motoring public or the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway or its appurtenances. Further, DOTD’s failure to design or maintain the state’s highways to modern standards does not establish the existence of a hazardous defect in and of itself. Whether DOTD has breached its duty to the public depends on all the facts and circumstances determined on a case-by-case basis. The State has no duty to bring old highways up to current safety standards, unless the highway has undergone major reconstruction. Nevertheless, 1 mthe State has a duty to correct conditions existing on old highways that are unreasonably dangerous. And, while failure to adhere to [ASHTO] standards may not in itself attach liability, whether DOTD has conformed to those standards is a relevant factor in determining the ultimate issue of whether the roadway is unreasonably dangerous. Even without a duty to update the road in question to conform to current design standards or even to the design standards in place when it was hard-surfaced or overlaid, DOTD is not shielded from liability for all unreasonably dangerous defects in the road.

The next issues to be determined are whether or not DOTD breached its duty, which breach resulted in an unreasonably dangerous road, and whether any such breach was a cause-in-fact of the damages sustained here.

While it is uncontested that Tiffany was exceeding the speed limit while attempting to pass, whether or not these actions were the sole cause of the accident are questions of fact put at issue by Evans’ affidavit. As opposed to the affidavits of Ardoin and Hall, Evans opined that the work performed in 1955 was major road reconstruction, that DOTD did not conform to the design standards in effect at that time, and that the west-side shoulder was incapable of supporting traffic properly. Thus, there is at least one question of fact. There appears to be a question of fact regarding DOTD’s obligation to bring the area up to more current safety standards.

Further, Evans stated that the purpose of shoulders is to provide an area for drivers who exit the travel lane to attempt to stop the vehicle or recover and return safely to the highway, and the existing shoulder area could not provide that even at the posted speed limit. He concluded that the inadequate shoulder did not provide a reasonable and safe recovery area. Rome’s deposition underscores the Insignificance of this issue. Under Louisiana’s comparative fault scheme, more than one party may be at fault for the damages sustained in a vehicular accident. Where there are concurrent causes of an accident, the proper inquiry is whether the conduct in question was a substantial factor in bringing about the accident. Whether the defendant’s conduct was a substantial factor in bringing about the harm and, thus, a cause in fact of the injuries, is a factual question to be determined by the fact finder. The question of a possible breach of duty by DOTD, which may be a contributing cause of the accident, has been put at issue.

Without determining other possible questions regarding the road conditions, signage, etc., we find there are questions of material fact precluding summary judgment. For these reasons, the judgment is reversed, and the case remanded for further proceedings.

REVERSED AND REMANDED.

      . See also, Hubbard v. Jefferson Parish Parks and Recreation, 10-24 (La.App. 5 Cir. 5/25/10), 40 So.3d 1106, writ denied, 10-1486 (La. 10/1/10), 45 So.3d 1102.

      . Id.

      . Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270.

      . Romero v. Bellina, 01-274 (La.App. 5 Cir. 9/25/01), 798 So.2d 279, writ denied, 01-2852 (La. 1/11/02), 807 So.2d 237.

      . Clarkston v. La. Farm Bureau Cas. Ins. Co., 07-0158 (La.App. 4 Cir. 7/2/08), 989 So.2d 164, writ denied, 08-1768 (La.10/31/08), 994 So.2d 539 (citing Snearl v. Mercer, 99-1738 (La.App. 1 Cir.2/16/01), 780 So.2d 563, 574, writs denied, 01-1319 and 01-1320 (La.6/22/01), 794 So.2d 800 and 801).

      . Forbes v. Cockerham, 08-0762 (La.1/21/09), 5 So.3d 839.

      . Id.

      . Cormier v. Comeaux, 98-2378 (La.7/7/99), 748 So.2d 1123.

      . Moss v. State, 07-1686 (La.App. 1 Cir. 8/8/08), 993 So.2d 687, writ denied, 08-2166 (La.11/14/08), 996 So.2d 1092.

      . Id. (citing Petre v. State, ex rel. Dep't of Transp. and Dev., 01-0876 (La.4/3/02), 817 So.2d 1107).

      . See, Bonin v. Ferrellgas, Inc., 03-3024 (La.7/2/04), 877 So.2d 89. Also see, Clarkston v. La. Farm Bureau Cas. Ins. Co., supra; Snearl v. Mercer, 99-1738 (La.App. 1 Cir.2/16/01), 780 So.2d 563, writs denied, 01-1319 and 01-1320 (La.6/22/01), 794 So.2d 800 and 801.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Rodney J. SHANNON.
    No. 10-KA-580.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, State of Louisiana, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.

      Panel composed of Judges WALTER J. ROTHSCHILD, MARC E. JOHNSON and ROBERT L. LOBRANO, Pro Tempore.
   WALTER J. ROTHSCHILD, Judge.

[2Rodney J. Shannon was charged by bill of information with driving while intoxicated, third offense, in violation of LSA-R.S. 14:98(A)(D) and pled not guilty at arraignment. Defendant filed a Motion to Quash, which was denied by the court, and trial was set for October 26, 2009.

Although defendant was represented by counsel, he subsequently filed several pro se motions. On September 29, 2009, defendant filed a Motion to Dismiss All Charges Based on Evidence Tampering. On October 9, 2009, defendant filed a Motion to Remove All Hearsay Statements as Evidence, a Motion to Suppress Evidence, and a Motion to Allow Electronic Equipment. At the motion hearing on October 15, 2009, the trial court noted that, despite defendant’s representation by counsel and despite counsel’s recommendations to defendant, defendant elected to file motions on his own. As a result, defense counsel expressed to the court his intention to withdraw as attorney of record.

13After allowing defendant and his counsel time to converse, and advising defendant of the potential pitfalls of proceeding without counsel, the trial court inquired whether defendant would go forward with or withdraw his pro se motions. Defendant withdrew the motions, and the court continued all other outstanding motions to the October 26, 2009 trial date. Defendant’s Motion to Allow Electronic Equipment was denied.

On October 27, 2009, the morning of trial, defendant re-filed his pro se motions. Due to what it considered to be defendant’s inability to cooperate with defense counsel, the trial court granted defense counsel’s motion to withdraw, allowed defendant to represent himself, and ordered defense counsel to sit through the proceedings and serve as “ghost counsel.” In addition to his pro se motions, defendant also filed a motion to transfer the case to another division. The trial judge declined to recuse himself and ordered that the case be transferred to another division for a determination on the motion pursuant to LSA-C.Cr.P. art. 675. Defendant’s motion was subsequently denied, and the matter was transferred back to the original trial judge.

The court then addressed defendant’s Motion to Remove All Hearsay Statements as Evidence and Motion to Suppress Evidence, which were both denied. The court then asked if the parties were ready to proceed to trial, to which defendant responded “[n]ot exactly, Your Honor. I mean I just started representing myself today.” Noting that the case was over a year old, the court indicted that it would go forward.

Prior to calling the jury, the State requested that defendant be fingerprinted and defendant objected, stating that he would stipulate to the two predicate DWI offenses. Defendant again advised the court that he needed more time to prepare and orally moved for a continuance of the trial, which the court denied.

14Defendant ultimately proceeded to trial before a six-person jury. The jury found defendant guilty of operating a motor vehicle while intoxicated, third offense. On November 9, 2009, defendant was sentenced to 5 years imprisonment at hard labor in the Department of Corrections, with credit for time served, to run concurrently with his sentence in case number 08-2993. The court suspended four years of the sentence, and imposed several special conditions.

After sentencing, defendant filed a Request for Minimal Sentence with No Bail and House Arrest, which was denied by the court on December 16, 2009. Defendant also filed a Motion for Re-Trial and a Motion for Post Verdict Judgment of Acquittal, which were both denied the same day. Defendant filed a written motion for appeal, which was granted on December 16, 2009.

FACTS

On April 26, 2008, Trooper First Class Ralph Onstad, of the Louisiana State Police, Troop B, was on patrol in Jefferson Parish when he observed defendant’s vehicle stopped in a median opening on Clear-view Parkway and King Street in Metairie, Louisiana. Because the vehicle did not have its headlights on, Trooper Onstad turned around to determine if the vehicle was abandoned or if someone had broken down. As Trooper Onstad approached, the driver turned on his hazard lights and began to pull away. Trooper Onstad turned on his blue lights, which activated the vehicle camera, and attempted to initiate a stop.

Defendant continued to drive, passing several parking lots, swerved prior to making a right turn on Ligustrum, and finally stopped on the eastbound side of the road, facing west. Trooper Onstad ran a search of defendant’s license plate on his computer system and subsequently discovered that the vehicle was not registered to defendant. Trooper Onstad then instructed defendant to step to the rear of the | avehicle but defendant failed to comply. As Trooper Onstad approached defendant, he observed that defendant appeared very unsteady on his feet. Trooper Onstad thought defendant might fall down and he asked defendant to sit on the bumper of his vehicle. Defendant smelled of alcohol, his eyes were very bloodshot, and he was very “wobbly”. According to Trooper On-stad’s testimony, defendant was uncooperative, and “wasn’t doing anything I told him to do, at all, basic things; you know, stand still, face this way, sit here. I mean he wasn’t doing anything.” Trooper On-stad further stated that when he interacted with defendant, defendant indicated “yes” and “no” with nods of his head and indicated that he could hear Trooper On-stad but could not speak.

Trooper Onstad testified that, based on his training and experience, he recognized these characteristics as signs of alcohol, medication or drug impairment. Trooper Onstad further testified that, based on the smell alone, he knew that defendant had been drinking alcohol.

Trooper Onstad attempted to speak with the passenger sitting in defendant’s vehicle, Ms. Williams, to ascertain whether defendant was deaf or had some other problem which prevented him from speaking. Trooper Onstad observed numerous beer bottle caps and a six-pack of beer on the floorboard of the vehicle. Trooper On-stad then attempted to conduct a Field Sobriety Test. Because of the manner in which defendant was acting, Trooper On-stad did not feel safe performing the Field Sobriety Test himself, so he placed a call on his radio for trooper assistance. Trooper Wolfe and Trooper Flynn responded to the scene to provide backup, but did not participate in the traffic stop or subsequent arrest.

Trooper Onstad testified that he then attempted to conduct the Field Sobriety Test. He stated he gave defendant the instructions, and defendant “wouldn’t stand still, he wouldn’t face the vehicle, he kept putting his hands in his pockets, which 1 fiis a major officer’s safety hazard.” Trooper Onstad stated he also observed that defendant “kept fooling with his belt as if he was going to take his pants off,” and that “[h]e was just doing all kinds of abnormal things.” When it became obvious that defendant was not going to cooperate, Trooper Onstad placed him under arrest. Defendant was transported to Jefferson Parish jail and his vehicle was towed.

Trooper Onstad stated he read defendant his rights relating to the breath test, but defendant continued to refuse to speak or communicate. Trooper Onstad set up the Intoxilyzer, and as he began entering defendant’s information, defendant suddenly spoke. Defendant advised Trooper Onstad that he would take a breath test after speaking with his attorney. Trooper Onstad offered to contact defendant’s attorney, and defendant provided him with two names, “Mr. Cazalot” and “Mr. Fourth and Derbigny.” Trooper Onstad accessed the internet from the jailhouse computer to attempt to locate an attorney who used either of those names, but was unsuccessful. Trooper Onstad continued to set up the Intoxilyzer but defendant refused to take the breath test. When Trooper On-stad asked defendant to sign one of the required forms, defendant wrote on the signature line “burp, did not.” At that point, Trooper Onstad acknowledged that defendant refused to sign the documents properly, wrote “refused” on the documents, proceeded to let the machine run through the required cycle, and continued with the booking process.

While at the jail, Trooper Onstad also offered defendant another opportunity to take the Field Sobriety Test, but defendant refused. Trooper Onstad reviewed defendant’s current history printout and noted one prior conviction for driving while intoxicated and “a second one they referred to as a DWI 894.” Defendant was charged with driving while intoxicated, second offense, in violation of LSA-[R.S.7 14:98, driving with no headlights in violation of LSA-R.S. 32:303, and improper stopping in violation of LSA-R.S. 32:141.

Defendant’s daughter, Racquel Car-mouche, was the only defense witness to testify at trial. Ms. Carmouche testified that when she and her father had gone to pick up the vehicle defendant was driving, it would not start. On cross-examination, Ms. Carmouche testified she was not in the car with her father the night he was arrested.

DISCUSSION

By his first assignment of error, defendant contends that the failure of the trial court to grant a continuance was an abuse of discretion and that he was prejudiced by the ruling. Specifically, defendant asserts that although he had “ghost counsel” throughout the trial, he was unprepared to represent himself and had arranged with another attorney to represent him if a continuance was granted. He contends that had he been able to consult with an attorney, he would have known that he was required to lay a foundation for his proffered evidence and would have been able to call witnesses to testify regarding the evidence. Defendant argues that the fairness of the entire proceeding was put in doubt by the court’s failure to allow him time to retain another attorney, and that “it was extremely important for [him] to be given a continuance to have these witnesses appear at trial.” Finally, defendant notes that, though LSA-C.Cr.P. art. 712 requires that a motion for continuance be in writing, an exception to this requirement exists where circumstances producing the motion for continuance occur unexpectedly and defense counsel has no opportunity to prepare a written motion. Defendant asserts that, given the unexpected granting of defense counsel’s motion to withdraw, the oral motion for a continuance should have been granted.

| sThe State responds that, because a motion for continuance must be in writing and filed at least seven days prior to trial, defendant’s claim lacks merit. The State also contends that this continuance, if granted, would have constituted defendant’s eleventh continuance. Moreover, the State asserts that the time afforded to defendant to prepare for trial was not so minimal as to undermine the fairness of the proceedings and that defendant has failed to show specific prejudice resulting from the trial court’s denial of the motion. The State concludes that defendant has failed to show that the trial court abused its discretion to deny defendant’s motion for continuance.

On the morning of trial, due to defendant’s inability to cooperate with defense counsel, the trial court granted defense counsel’s motion to withdraw, allowed defendant to represent himself, and ordered defense counsel to sit through the proceedings and serve as “ghost counsel.” When the court inquired as to whether defendant was ready to proceed to trial, defendant responded “[n]ot exactly, Your Honor. I mean I just started representing myself today. And I didn’t have time to subpoena documents. There are quite a bit of documents I need to subpoena from the State as well as Trooper Onstad and the Department of Public Safety that has not been turned over by Mr. Sauviac, or he didn’t have it.” When the court indicated its intention to proceed, the following exchange occurred:

Defendant: Excuse me. Your Hon- or, again I’m going to state with respect to the Court that I haven’t had much time to prepare. Mr. Sauviac just got off the case this morning. And I need more time to prepare for this case. I’m not at all ready.
The Court: Mr. Shannon, let me say this to you, sir. Your case is better than . a year old. I have repeatedly continued your case at your request time and time again, most recently as last month when your case came up for motion hearing. I thought we had these issues resolved. You were at odds with your attorney. You, again, this week, are at odds with your attorney. And, please, I am trying to put it in as simple of terms as possible. If I allowed every defendant to cause issues with their attorney on the eve of trial, and that would automatically | ^continue the case, then this Court would get nothing done. Your case was set in stone. I remember telling you that time and time again. Today is the date of trial, and it’s only because of what you have done with regard to your own counsel. And, despite that, I have ordered, and I want the record to reflect, that Mr. Sauviac is still in the courtroom, and he is your ghost counsel. So, he is there to help you throughout this process. End of story.
Defendant: I asked Mr. Sauviac several questions, and I mean he couldn’t give me an answer, actually, on certain things. Again, for the Record, I’ve just received this case in its entirety on my own. And let the Record reflect that I am not ready to continue with this trial. A seasoned veteran wouldn’t be able to take this case right on. A seasoned veteran, he would have to have time to look at the case. And me and Mr. Sau-viac was trying, trying to come to some sort of an agreement, and it just didn’t happen. So, therefore I’d like to — •
The Court: And it’s not an agreement with regard to representation, it was an agreement with regard to how you wish to progress with your case. You paid Mr. Sauviac. That’s what you told me. The sole issue today is because you choose to go down a different path than what he has advised you to. He was prepared and he was ready to try your case.
Defendant: I need certain documents in order to present a fair trial for myself. And today is just — a couple of hours is not enough time to properly prepare.
The Court: If that’s a motion to continue, I want the Record to be abundantly clear this case was reset, it’s over a year old. It’s over a year old. I’ve (sic) have continually pushed back your cáse at your request. I made it abundantly clear today was your date of trial. And only because you have chosen to be at odds with your attorney are you in the position that you’re in today. This is something that you caused, Mr. Shannon, no one else.
Your motion to continue, if that’s what it is, is denied.
Bring the jury in.

Defendant then advised the court that he “was supposed to have another attorney coming down also.” In an effort to resolve the issue, the court contacted the attorney on defendant’s behalf. The attorney informed the court that he would not be representing defendant at the trial and that he had advised defendant that he would only represent him if the case was continued. The court then proceeded to bring in the jury.

According to LSA-C.Cr.P. art. 707: |inA motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial. Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.

Nevertheless, there is a jurisprudential exception to the requirement for a written motion where the circumstances producing the motion occur unexpectedly and there is no opportunity to prepare the motion. State v. Bartley, 03-1382, p. 4 (La.App. 5 Cir. 3/30/04), 871 So.2d 563, 567, writ denied, 04-1055 (La.10/1/04), 883 So.2d 1006 (citing State v. Winfrey, 97-427 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, 68, writ denied, 98-264 (La.6/19/98), 719 So.2d 481)(holding that defendant had not preserved the denial of his oral motion for continuance because no unexpected circumstances arose to prevent the filing of the written motion)(citing State v. Malinda, 95-292 (La.App. 5 Cir. 10/31/95), 663 So.2d 882, 886 (where this Court held that defendant should have filed a written motion but reviewed the denial of the motion to continue in an abundance of caution)).

In the present case, there is no evidence in the record that a written motion for continuance was filed or that an oral motion was made seven days in advance of trial. Given that defendant had ongoing issues with defense counsel, who had filed a motion to withdraw almost two weeks prior to the trial date, and that defendant had already contacted another attorney, we do not find that the circumstances producing defendant’s motion occurred unexpectedly. As such, there was arguably time to prepare the motion prior to the day of trial. On that basis, we find that defendant has not preserved the issue for appeal. Nevertheless, we will address the merits of defendant’s claim. See State v. McGee, 04-963, p. 16 (La.App. 5 Cir. 1/11/05), 894 So.2d 398, 409-10, writ denied, 05-0593 (La.5/20/05), 902 So.2d 1050; Bartley, 871 So.2d at 567.

According to LSA-C.Cr.P. art. 712, “[a] motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.” The Louisiana Supreme Court has consistently held that the decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. State v. Davenport, 08-463, p. 3-4 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 447, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473 (citing State v. Manning, 03-1982, p. 30 (La.10/19/04), 885 So.2d 1044, 1077, cert. denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005)). In addition, the Louisiana Supreme Court generally declines to reverse convictions even on a showing of an improper denial of a motion for a continuance absent a showing of specific prejudice. Id. at 3-4, 2 So.3d at 447. This Court has also recognized that the denial of a motion for continuance is not grounds for reversal absent abuse of discretion and a showing of specific prejudice. Davenport, 08-463 at 4, 2 So.3d at 447 (citing Bartley, 03-1382 at 5, 871 So.2d at 567).

Continuance to retain new counsel

It is well settled that a defendant in a criminal trial cannot, by a last minute change of counsel, force a postponement. State v. Williams, 00-1850, p. 4 (La.App. 5 Cir. 4/11/01), 786 So.2d 785, 790-91, writ denied, 01-1432 (La.4/12/02), 812 So.2d 666. In State v. Divine, 98-812, pp. 3-5 (La.App. 5 Cir. 5/19/99), 738 So.2d 614, 616-17, writ denied, 99-2393 (La.2/4/00), 754 So.2d 222, cert. denied, 530 U.S. 1219, 120 S.Ct. 2227, 147 L.Ed.2d 258 (2000), defense counsel orally moved for a continuance on the day of trial, saying that the defendant had told him |12he had hired another lawyer to represent him. The trial court denied the motion, stating that there was a two-month period from the date of arraignment to trial for defendant to retain new counsel or handle any other matters he felt appropriate. Id. at 3, 738 So.2d at 616. This Court could not say the trial court erred in denying the motion. Id. at 5, 738 So.2d at 617.

In the present case, we find no abuse of the trial court’s discretion in denying defendant’s motion to continue to afford time for defendant to retain new counsel. As recognized by the trial court defendant had ample time to substitute counsel, if he chose to, prior to the commencement of trial. The bill of information in this case was filed on June 5, 2008. Defendant was arraigned on July 11, 2008. Defendant was represented by Alex Lambert at the hearings on October 7, 2008, November 5, 2008 and November 6, 2008. Defendant’s retained counsel, Donald Sau-viac, first appeared on defendant’s behalf on December 8, 2008, for a motion hearing that was ultimately continued to January 5, 2009, at defendant’s request. The January 5, 2009 motion hearing was continued, at defendant’s request, to February 9, 2009, and trial was set for March 2, 2009. On February 9, 2009, defendant requested another continuance, and the motion hearing was re-set for February 11, 2009. On February 11, 2009, defendant’s motion to quash was denied, and defendant requested a stay in order to seek writs with this Court.

After writs were denied by this Court and the Louisiana Supreme Court, the parties appeared at a hearing on June 1, 2009. Defendant requested a continuance, and the hearing was continued to September 1, 2009. On September 1, 2009, the court set a trial date of October 26, 2009, and re-set the motion hearing date for October 15, 2009. On October 15, 2009, the court noted that defendant had filed several pro se motions against the advice of his counsel and that defense counsel had moved to withdraw. The court gave defendant and his counsel some time to |1sresolve their differences, and defendant decided to withdraw his pro se motions and go forward with Mr. Sauviac. At the end of the hearing, the court advised defendant that trial would commence, as scheduled, on October 26, 2009.

Nearly two weeks later, on the morning of trial, defendant re-filed his pro se motions, and the court inquired whether defendant intended to represent himself. Noting that defendant and defense counsel had come to an impasse, the court granted defense counsel’s motion to withdraw but ordered that defense counsel sit through the case and serve as ghost counsel. Defendant orally moved for a continuance, and proceeded to trial after his motion for continuance was denied.

“There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases.” State v. Leggett, 363 So.2d 434, 436 (La.1978). We fail to find that the trial court abused its discretion in denying defendant’s motion to continue because the case had been pending for over a year, the trial had already been continued and the new date had been re-set for nearly two months, and defendant had ongoing issues with counsel and could have retained new counsel well in advance of the trial date. Moreover, defendant had defense counsel present during the trial as “ghost counsel.” There is no indication that defense counsel, who was ready to proceed to trial, had any intention of issuing subpoenas for additional witnesses or documents. Thus, defendant should have had the benefit at trial of the same materials and/or witnesses available to defense counsel. As such, we find that defendant has not shown any prejudice in the denial of the motion.

Continuance to obtain witnesses

A criminal defendant is constitutionally guaranteed the right to compulsory process and to present a defense. State v. Arabie, 07-806, p. 8 (La.App. 5 Cir. 1143/11/08), 982 So.2d 136, 141, writ denied, 08-0928 (La.11/21/08), 996 So.2d 1104. A defendant’s right to compulsory process is the right to demand subpoenas for witnesses and the right to have those subpoenas served. Id. However, a defendant’s inability to obtain service of a requested subpoena is not an automatic ground for reversal. Id. He must show prejudicial error, demonstrating that the witness’s testimony would be favorable to the defense and the trial results would possibly be different if the witness testified. Id.

According to LSA-C.Cr.P. art 709, a motion for a continuance based upon the absence of a witness must state the following:

(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

The requirements of article 709 are strictly enforced by the courts. Ara- bie, 982 So.2d at 142. In State v. Meyers, 95-750, 96-35, 96-895, pp. 21-23 (La.App. 5 Cir. 11/26/96), 683 So.2d 1378, 1388-89, writs denied, 97-0015 (La.5/9/97), 693 So.2d 766, 98-2530 (La.2/5/99), 737 So.2d 745, 00-0995 (La.12/8/00), 775 So.2d 1079, this Court found no abuse of the trial court’s discretion in denying defendant’s motion for a continuance on the basis of absent witnesses, whose testimony the defense claimed was exculpatory, where defendant failed to meet two of the three requirements of LSA-C.Cr.P. art. 709.

In the present case, we find that defendant did not satisfy the requirements of LSA-C.Cr.P. art. 709. On appeal, defendant argues that had he been able to consult with an attorney he “would have known that he had to lay a foundation for 11f-,his proffered evidence and provide the proper witnesses.” Defendant further contends that “[i]f these witnesses had been called, they could have testified that the car needed repairs because it stalled, Mr. Shannon had bloodshot eyes due to allergies, and if someone else had taken the video, that person could have laid a foundation.” Thus, defendant concludes that “it was extremely important for the defendant to be given a continuance to have these witnesses appear at trial.”

However, defendant’s motion for continuance was not based on an absence of witnesses. At the time he requested the continuance, defendant did not mention potential witnesses or request that he be permitted to call other witnesses. Though he now argues that the person who performed the repairs on his car and the person who filled his allergy prescription “would have added much needed substance to [his] claim that he was not guilty,” defendant has failed to set forth any facts to which these absent witness would be expected to testify that would show the materiality of the testimony and the necessity for the presence of these witnesses at the trial.

Further, defendant said nothing of the facts and circumstances showing a probability that the witnesses would be available at the time to which the trial would be deferred. He also said nothing to show that he or defense counsel used due diligence in an effort to secure the attendance of any of these potential witnesses. As reflected in the record, defendant did not even disclose the names of potential witnesses who might testify on his behalf.

As such, we find no abuse of the trial court’s discretion in denying defendant’s motion to continue. Further, as discussed above, defendant has failed to show specific prejudice.

This assignment of error is without merit.

| ^Defendant next contends that the trial court improperly denied his Batson challenges. Specifically, defendant asserts that the State exercised peremptory challenges to excuse two black jurors and that the prosecutor’s “racially neutral reasons” for excusing these jurors were a sham. As such, defendant argues that a pattern of discrimination was established, constituting reversible error.

The State responds that, although defendant did not satisfy his burden of establishing a prima facie case of discrimination, the judge required that the State provide race neutral reasons for excusing the two jurors. Additionally, the State asserts that, in response to the defendant’s Batson objections, it offered valid, race-neutral reasons for striking both jurors. As such, the State contends that the trial court properly overruled the objections.

The Equal Protection Clause of the United States Constitution prohibits purposeful discrimination on the basis of race in the exercise of peremptory chai-lenges. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Batson decision is codified in LSA-C.Cr.P. art. 795(C). In Batson, the United States Supreme Court established a three-step analysis to be applied when addressing a claim that peremptory challenges of a prospective juror were based on race. State v. Cheatteam, 07-272, p. 7 (La.App. 5 Cir. 5/27/08), 986 So.2d 738, 743 (citing Batson, supra).

First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised his or her peremptory challenges to exclude potential jurors on the basis of race. Cheatteam, 07-272 at 7, 986 So.2d at 117743 (citing Batson, 476 U.S. at 96-7, 106 S.Ct. at 1723). Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Id. (citing Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24). This second step “does not demand an explanation that is persuasive or even plausible;” as long as the reason is not inherently discriminatory, it suffices. Id. (citing Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995) (per curiam)). Third, the court must then determine whether the defendant has established purposeful discrimination. Cheatteam, 07-272 at 7, 986 So.2d at 743 (citing Batson, 476 U.S. at 98, 106 S.Ct. at 1724). It is at this third step that implausible explanations offered by the prosecution “may (and probably will) be found to be pretexts for purposeful discrimination.” Id. at 7-8, 986 So.2d at 743 (citing Purkett v. Elem, 514 U.S. at 768, 115 S.Ct. at 1771). “On appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.” Id. at 8, 986 So.2d at 743 (citing Snyder v. Louisiana, 552 U.S. 472, 477, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008) (citing Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 1871, 114 L.Ed.2d 395 (1991))).

The Supreme Court subsequently affirmed and applied the three-part Batson test in Miller-El v. Dretke, 545 U.S. 231, 239, 125 S.Ct. 2317, 2324, 162 L.Ed.2d 196 (2005), and, most recently, in Snyder v. Louisiana, supra. Cheatteam, 07-272 at 8, 986 So.2d at 743. In Miller-El, the Supreme Court emphasized the trial judge’s responsibility to assess the plausibility of the prosecutor’s proffered race-neutral reason “in light of all evidence with a bearing on it.” Id. at 8, 986 So.2d at 743-44 (citing Miller-El, 545 U.S. at 252, 125 S.Ct. at 2331). The Supreme Court further stated:

A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual | ^significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.

Id. at 8, 986 So.2d at 744 (citing Miller-El, 545 U.S. at 252,125 S.Ct. at 2332).

In Snyder, the Supreme Court again emphasized that the plausibility of the prosecutor’s explanation for a peremptory strike is to be carefully scrutinized by the trial judge under the third step of the Batson inquiry, and noted that implausible reasons will fail a Batson challenge. Cheatteam, 07-272 at 8, 986 So.2d at 744. The Supreme Court further noted that “[t]he trial court has a pivotal role in evaluating Batson claims,” and that, “in the absence of exceptional circumstances, we would defer to [the trial court].” Snyder, 552 U.S. at 477, 128 S.Ct. at 1208 (citing Hernandez, 500 U.S. at 366, 111 S.Ct. at 1859). Pursuant to Snyder, step three of the Batson inquiry involves an evaluation of the prosecutor’s credibility to determine “not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Cheatteam, 07-272 at 8-9, 986 So.2d at 744 (citing Snyder, 552 U.S. at 477, 128 S.Ct. at 1208).

Citing Miller-El, the Snyder court reiterated that, in considering a Batson objection, “all of the circumstances that bear upon the issue of racial animosity must be consulted.” Snyder, 552 U.S. at 478, 128 S.Ct. at 1208. If the record does not support the prosecutor’s proffered explanation or if it evidences that the proffered explanation is implausible, “there is an inference of discriminatory intent that sufficiently demonstrates a Batson violation.” Cheatteam, 07-272 at 9, 986 So.2d at 744 (citing Snyder, 552 U.S. at 485, 128 S.Ct. at 1212).

The defendant in the instant case is an African American. Of the twenty-eight jurors called in the present case, thirteen were white females, ten were white males, and five were black females. In the selection of the six-member jury panel |19in this case, the record shows that defendant exercised six peremptory challenges, all against white males. The record shows that the State also exercised six peremptory challenges. Two of the six of the State’s peremptory challenges were against potential jurors who were African American: Debra Thirsty and Leslie Harris. The jury was ultimately comprised of three white females, two white males, and an African-American female.

The State’s first peremptory challenge was exercised against Ms. Amber Archen-brenner, a white female. The State’s second peremptory challenge was exercised against Mr. William Pinkston, a white male. The State’s third peremptory challenge was exercised against Janice Hamilton, a white female. The State did not give reasons for striking these jurors.

The State’s fourth and fifth peremptory challenges were exercised against two African American females: Ms. Debra Thirsty and Ms. Leslie Harris. Defendant lodged a Batson challenge, indicating that both Thirsty and Harris were African Americans, and requested that the State give a race-neutral reason for the strikes. The State provided the following explanation for exercising a peremptory challenge against Ms. Thirsty:

Well, originally, she said she couldn’t follow the law, and then she said she could follow the law. She did it very reluctantly. She was very reluctant to follow the law,. initially. This is not a State favorable,witness in terms of viewing the evidence.

Defendant objected to the State’s reasoning, arguing that the State was “eliminating all African-American people, and I think this is purely race baiting.” 12nThe trial judge recognized that Thirsty had given conflicting answers, and overruled defendant’s objection, stating:

I’ve listened to your argument. All right? She gave conflicting answers, her demeanor, she was not very forthcoming. She was very quick to respond that she could not follow the law and at times appeared to the Court to be disengaged from the process. While, admittedly, when called up she changed her statement later in voir dire and said it was because of a misunderstanding, I do find that the excuses given by the State are racially neutral. Because there is a basis for fact that she failed to follow the scheme of the law as explained, she vacillated on her answer. So, your objection is overruled.

With regard to Ms. Harris, who was employed as a secretary for an attorney named Chip Forstall, the State offered the following explanation:

Judge, as a defense attorney I litigated forty-three cases against Chip Forstall. I know the office, I’ve been in that office hours and hours and hours. I don’t know if she’s seen me or if she’s not seen me.
I mean it’s a plaintiffs attorney firm that I have litigated a ton of cases against. I had one case that involved forty-three different people. I’ve spent many, many hours in that office. I just do not feel comfortable with that. Plus, her answer, she was not — she was not very verbal when I questioned her. I questioned her after I questioned Ms. Thirsty, and she didn’t give that many explanations. And normally I would like with being family members who are Gretna police officers, but her answers were not forthcoming when it came to following the law on .08 until later.

Defendant objected to the State’s explanation, arguing that the Assistant District Attorney had no direct connection with Ms. Harris. The trial judge overruled defendant’s objection stating:

All right. Let me say this. I am familiar, I think as all of us are, the advertisements for Mr. Forstall in the community. I can take judicial notice of that. And he certainly does have a very active practice in litigation and does appeal, based upon his advertisement, to a specific segment of the community. Mr. Milner says that he has had, in fact, cases with the law firm for which she’s employed, and additionally the fact that she was sometimes evasive when it came to responses with regard to following the law.
Your objection is overruled. She’s struck.

laiThe State’s sixth peremptory exception was exercised against Mr. Johnny Norra, a white male. The State did not give a reason for striking this juror.

Applying the three-step analysis established by the United States Supreme Court in Batson, we do not find that the defendant established a prima facie case of discrimination. Thus, we find that the State was not required to provide race-neutral explanations for its peremptory challenges. It is initially noted that, prior to striking Ms. Thirsty, the State had exercised three peremptory challenges, all against white jurors. The record does not indicate that defendant showed any facts or relevant circumstances that raised an inference that the prosecutor was using his or her peremptory challenges to exclude potential jurors on the basis of race. Instead, after the State exercised a peremptory challenge against Ms. Harris, defendant simply asked: “What’s the reasoning? Aren’t there reasoning on these?” Defendant then stated: “That’s the last two African Americans. I mean they basing it purely on race.” Other than observing that the State had stricken two African Americans, defendant failed to allege any other facts tending to show that the State was excluding jurors on the basis of race. Despite defendant’s apparent failure to establish a prima facie case, the court then requested race-neutral reasons from the State.

On appeal, defendant complains that a pattern of discrimination was established and that the prosecutor’s reasons for excusing Ms. Thirsty and Ms. Harris were “a sham.” He alleges that the “only reason the last black juror was accepted by the State was to give weight to its claim that it was only exercising racially neutral reasons for excusing Ms. Thirsty and Ms. Harris, thus showing purposeful discrimination.”

J^gHowever, the tenor of the entire voir dire evidences that the exclusions of the African American jurors was not discriminatory. Prior to excusing Ms. Thirsty and Ms. Harris, the State exercised peremptory challenges against three white jurors. With regard to Ms. Harris, who was employed as a secretary for Chip Forstall, the assistant district attorney advised the court that he had litigated many cases against Mr. Forstall and had been in Mr. Forstall’s office. Because previous association with a District Attorney has been found to be a valid ground for a peremptory challenge of a juror, we find that removal of this juror was justified and race-neutral. State v. Baker, 34,973, p. 13 (La.App. 2 Cir. 9/26/01), 796 So.2d 145, 154 (citing State v. Mamon, 26,337 (La.App. 2 Cir. 12/16/94), 648 So.2d 1347, writ denied, 95-0220 (La.6/2/95), 654 So.2d 1104); State v. Thornton, 36,757 (La.App. 2 Cir. 1/29/03), 836 So.2d 1235, 1241, writ denied, 03-0861 (La.10/31/03), 857 So.2d 474 (citing Mamon, supra).

With regard to Ms. Thirsty and Ms. Harris, the assistant district attorney advised the court that both had expressed an inability or unwillingness to follow the law without proof of a .08 on the breath test. The court recognized that Ms. Thirsty had “vacillated on her answer,” and noted that Ms. Harris was “evasive when it came to responses with regard to following the law.” As noted above, the State’s reason for exercising a peremptory challenge will qualify as race-neutral unless a discriminatory intent is inherent in the prosecutor’s explanation. State v. Taylor, 06-558, p. 22 (La.App. 5 Cir. 7/30/07), 966 So.2d 631, 645, writ denied, 07-1902 (La.2/1/08), 976 So.2d 717 (citing State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 956, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005)). In the instant case, we find no discernable discriminatory intent in the State’s explanation. Considering that the trial judges determination pertaining to purposeful Indiscrimination rests largely on credibility evaluations and great deference is given to the trial judge in his determination, we find that the trial court did not err in denying defendants Batson challenges. As noted above, step three of the Batson inquiry involves an evaluation of the prosecutor’s credibility to determine “not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demean- or can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Cheatteam, 07-272 at 8-9, 986 So.2d at 744 (citing Snyder, 552 U.S. at 477, 128 S.Ct. at 1208). The trial judge was in the best position to determine the prosecutors sincerity and found no purposeful discrimination. Additionally, the trial judge observed the demeanor of both of the stricken jurors and, in denying defendants Batson challenges, expressly recognized the issues cited by the State in support of its peremptory challenges. Thus, we find that the trial courts determinations are supported by the record.

By his final assignment, defendant contends that a mistrial should have been declared when the prosecutor emphasized that the evidence was uncontroverted because it constituted an indirect reference to defendant’s right to remain silent. Defendant further asserts that the error was not harmless because the trial judge did not have the discretion to deny the motion and because mistrial is mandatory under LSA-C.Cr.P. art. 770(3).

The State responds that the prosecutor’s remarks did not constitute an indirect reference to defendant’s failure to testify at trial but were rather offered as a reminder to the jury that evidence comes from the witness stand and not from the podium. The State further argues that the prosecutor’s remarks were made in rebuttal to defendant’s closing argument, during which defendant improperly offered testimony suggesting that he was tricked by the officer, that the officer | ^acted improperly, and that his bloodshot eyes were the result of allergies. The State notes that LSA-C.Cr.P. art. 770 provides for an admonition of the jury if requested by the defendant, and such an admonition was given in the instant case. Finally, the State argues that any error would be subject to a harmless error analysis and that there was overwhelming evidence of defendant’s guilt.

During his closing argument rebuttal, the assistant district attorney stated:

Now you’re going to hear several instructions at the end by the Judge. And these instructions are going to basically tell you how you’re supposed to decide the case. Okay? That’s the law. The law comes from there (indicating), the evidence comes from here (indicating). Nothing that was said by myself, co-counsel, or Mr. Shannon from right here is evidence. The only evidence comes from right there (indicating). And, ladies and gentlemen, it’s uncontroverted. It’s uncontroverted. It is uncontrovert-ed. The officer gave you—

Defendant objected and moved for a mistrial on the grounds that the assistant district attorney had improperly commented on his failure to testify. In response to defendant’s objection, the assistant district attorney stated:

He’s acting as both counsel and the Defendant in this case. I’m merely stating that he can’t testify from the lectern. But the evidence comes from the witness stand. This is a basic instruction.

In denying defendant’s motion for mistrial, the court stated:

All right. I’ve looked at Article 770, and I’ve looked at the cases interpreting these provisions. The case law, in my opinion, is quite clear, that a statement of uncontroverted evidence, without directly making reference to the Defendant’s failure to testify, isn’t sufficient to cause a mistrial.
I will go on to say that I want the Record to reflect that you have certainly pushed the envelope, Mr. Shannon, through your presentation and cross-ex-animation today. As a matter of fact, in your closing argument you attempted to testify beyond the facts that were elicited from the witness stand. All right? So, at the end of the day, I don’t believe it warrants a mistrial. I will, however, give a cautionary instruction if that’s what you so desire. I will tell you that the jury instructions, as you well know, because you’ve reviewed them, certainly cover arguments of counsel not being evidence, arguments of counsel not being considered. And, more importantly, there is a specific charge with regard to not testifying and that that have no inference one way or the other.
1 ^That’s why I leave it in your shoes whether or not you want to have a cautionary instruction or let it lie. I will instruct the DA to move on.

At defendant’s request, the court then admonished the jury as follows:

All right. Ladies and gentlemen, at this juncture let me make this comment to you. No presumption of guilt may be raised, and no inference of any kind may be drawn from the fact that the Defendant did not testify.
And when one invokes their right to remain silent, there should be no inference of guilt as a result of one’s invoking their constitutional right to remain silent. Understood?
Motion denied.
Continue.

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the ... district attorney ... in argument, refers directly or indirectly to ... [t]he failure of the defendant to testify in his own defense[.]” State v. Jones, 08-20, p. 14 (La.App. 5 Cir. 4/15/09), 985 So.2d 234, 244 (citing LSA-C.Cr.P. art. 770(3)). The granting of a mistrial based on the State’s direct or indirect reference to the defendant’s failure to testify in his own defense is a prohibition that was established to safeguard the defendant’s Fifth Amendment right against self-incrimination. Jones, 08-20 at pp. 14-15, 985 So.2d at 244-45 (citing State v. Mims, 00-1507, p. 3 (La.App. 5 Cir. 12/26/01), 806 So.2d 760, 764, writ denied, 02-0466 (La.2/7/03), 836 So.2d 88). Generally, both direct and indirect references to the defendant’s failure to testify are banned by LSA-C.Cr.P. art. 770(3). Jones, 08-20 at p. 15, 985 So.2d at 245 (citing State v. Blank, 04-204, p. 19 (La.4/11/07), 955 So.2d 90, 140, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346). When a direct reference is made by the State regarding the defendant’s failure to take the stand, a mistrial should be declared regardless of whether the State intended for the jury to draw unfavorable inferences from the defendant’s silence. Id. (citing Mims, 00-1507 at 3, 806 So.2d at 764). However, when the State makes an indirect reference to the defendant’s |2fifailure to testify, the trial court must determine whether the remark’s intended effect on the jury was an impermissible reference to the defendant’s failure to testify or a permissible reference in a general statement that the State’s case was unrebutted. Id. Therefore, an indirect reference only requires a mistrial if the comment was intended to draw the jury’s attention to the defendant’s failure to testify. Jones, 08-20 at p. 15, 985 So.2d at 245 (citing State v. Lai, 04-1053, p. 15 (La.App. 5 Cir. 4/26/05), 902 So.2d 550, 560, writ denied, 05-1681 (La.2/3/06), 922 So.2d 1175). “In order to support the granting of a mistrial, the inference must be plain that the remark was intended to focus the jury’s attention on the defendant’s failure to testify.” Jones, 08-20 at p. 15, 985 So.2d at 245 (citing Mims, 00-1507 at 4, 806 So.2d at 764).

“A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial.” State v. Smith, 04-340, p. 5 (La.App. 5 Cir. 10/26/04), 888 So.2d 280, 285. “Whether a mistrial should be granted is within the sound discretion of the trial court and the denial of a motion for mistrial will not be disturbed absent an abuse of that discretion.” Id.

In the present case, we find that the assistant district attorney was simply referring to the fact that evidence comes from the witness stand, and not from the arguments of counsel or from defendant, who was acting as his own counsel. A review of the record reveals that the remarks were made in rebuttal to defendant’s closing argument in which he attempted “to testify beyond the facts that were elicited from the witness stand.” Specifically, during his closing argument, defendant stated:

As you can see, my eyes are always bloodshot, bloodshot l27red. And I had to see why. The good thing that came out of this, I found out that I had an allergy. And men don’t usually go to the doctor.

The State objected to defendant’s statements on the basis that they were beyond the scope of evidence, and the court sustained the State’s objection. The defendant further stated:

And you will note in the video that the officer has done things that was (sic) unethical, unreasonable to have me sit there and face those extremely bright lights for that long period of time. Put yourself in that situation. I mean I put my head down, I couldn’t see. It was a halo. You could see the halo. Imagine me looking directly into those lights.

The State again objected on the ground that defendant’s statements constituted testimony and not argument. In sustaining the State’s objection, the court stated:

Mr. Shannon, you’ve got to limit your argument to the facts and the evidence that were introduced at trial. You can make comments about what we saw on the video, but you cannot testify standing behind the lectern. Do you understand?

Because the court noted that defendant was improperly testifying while acting as counsel during closing argument, and because the assistant district attorney’s comments were made in rebuttal to defendant’s closing argument, we fail to find that the assistant district attorney’s remarks referred to defendant’s failure to testify or that the remarks were made to focus the jury’s 'attention on defendant’s failure to testify.

Nevertheless, even if the assistant district attorney’s remark was an impermissible indirect reference, which focused the jury’s attention on the defendant’s failure to testify, the error appears to be harmless. Harmless error occurs when the guilty verdict actually rendered in the trial was surely unattributable to the error. Jones, 08-20 at p. 16, 985 So.2d at 245 (citing State v. Norman, 99-600, p. 9 (La.App. 5 Cir. 2/16/00), 756 So.2d 525, 530, writ denied, 00-971 (La.3/23/01), 787 So.2d 1007). “Comment on the defendant’s failure to |2stake the stand at trial is a trial error, not a structural defect in the proceedings, that has been subject to harmless-error analysis at the federal level since Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).” Jones, 08-20 at p. 16, 985 So.2d at 245 (quoting State v. Thomas, 05-2373, p. 1 (La.4/17/06), 926 So.2d 490, 491 (per curiam)). Thus, unless an appellate court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict, it should not reverse a conviction due to improper remarks during a closing argument. Jones, 08-20 at p. 16, 985 So.2d at 245 (citing State v. Jackson, 04-293, pp. 5-6 (La.App. 5 Cir. 7/27/04), 880 So.2d 69, 73, writ denied, 05-0232 (La.5/6/05), 901 So.2d 1094). In making its determination, the appellate court should give credit to the good sense and fairmindedness of the jury that has seen the evidence and heard the argument, and has been instructed that the arguments of counsel are not evidence. Jones, 08-20 at p. 16, 985 So.2d at 245-46 (citing Jackson, 04-293 at 6, 880 So.2d at 73; Lai, 04-1052 at 13, 902 So.2d at 559).

In the present case, there is ample evidence in the record to support a guilty verdict, including testimony by Trooper Onstad that defendant appeared very unsteady on his feet, smelled of alcohol and that his eyes were bloodshot. Trooper Onstad also testified that defendant was uncooperative and would not comply with his instructions or speak. Finally, Trooper Onstad testified that defendant “kept fooling with his belt as if he was going to take his pants off,” and that “[h]e was just doing all kinds of abnormal things.” Based on his training and experience, Trooper Onstad recognized these characteristics as signs of alcohol, medication or drug impairment. Trooper Onstad further testified that, based on the smell alone, he knew that defendant had been drinking alcohol. Trooper Onstad also observed numerous beer bottle caps and a six-pack of beer on the floorboard of the vehicle ^defendant was driving. In addition to Trooper Onstad’s testimony, the State also presented the corroborating video of the stop and arrest.

Based on the testimony and evidence presented in this case, we find that the guilty verdict is not attributable to any error, but is rather based upon evidence that defendant was guilty of the charged offense.

Lastly, 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). The review reveals no errors patent in this case.

Accordingly, for the reasons assigned herein, the conviction and sentence of defendant, Rodney J. Shannon, are hereby affirmed.

AFFIRMED.

      . It is noted that there has been recent legislative action regarding LSA-C.Cr.P. art. 709 which is not relevant to this discussion.

      . LSA-C.Cr.P. art. 795(C) provides:
      No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.

      . The record reveals that the trial judge did not specifically state whether the defendant met his burden to establish a prima facie case of racial discrimination. However, a trial judge’s demand that a prosecutor justify his use of peremptory strikes is tantamount to a finding that the defense has produced enough evidence to support an inference of discriminatory purpose. State v. Green, 94-0887, (La.5/22/95), 655 So.2d 272, 288. Once a prosecutor offers a race-neutral explanation for the peremptory challenge and the trial judge rules on the ultimate question of intentional discrimination, the issue of whether defendant made a prima facie showing becomes moot. Green, supra, citing Hernandez v. New York, supra.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Daniel CROCHET.
    No. 10-KA-387.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Daniel Crochet, Angie, LA, Defendant in Proper Person.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

| ^Defendant Daniel Crochet appeals his conviction for aggravated burglary, a violation of LSA-R.S. 14:60. On appeal, under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir. 1990), appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Appointed counsel moves this Court for leave to withdraw as counsel of record.

Defendant filed a pro se supplemental brief, raising issues of ineffective assistance of counsel and an excessive sentence. After thorough review of the record, we affirm defendant’s conviction and sentence, and grant counsel’s motion to withdraw.

\£ACTS AND PROCEDURAL BACKGROUND

Defendant was charged with aggravated burglary, a violation of LSA-R.S. 14:64. He pled not guilty at arraignment. Defendant later withdrew his not guilty plea and pled guilty as charged. The district court sentenced defendant to 15 years at hard labor.

Defendant entered a stipulation to second felony offender status. The district court vacated defendant’s original sentence and imposed a habitual offender sentence on defendant of 15 years at hard labor. The district court granted defendant an out-of-time appeal on March 1, 2010.

No evidence was presented in this case. There were no motion hearings, and defendant entered a guilty plea to the charged offense. The prosecutor gave the following note of evidence at the time of the guilty plea:

With respect to Mr. Crochet, on September 6th, 2007, he entered 595 Brook-meade Drive, a home belonging to Raymond Liss. And the Bill of Information had previously listed Philip Trupiano as the owner, so I’m going to change that on the Bill. And he armed himself with a weapon while he was inside. He was apprehended inside the residence.

ANALYSIS

Pro Se Brief

In a pro se brief filed with this court, defendant argues that he received ineffective assistance of counsel. Specifically, he argues that his counsel failed to explain his case to him and failed to adequately prepare for trial, with the result that she instead convinced him to plead guilty. He also argues that counsel was ineffective because she allowed him to plead guilty to aggravated burglary, rather than simple burglary of an inhabited dwelling, because no person was present in the home during the commission of the crime. Third, defendant argues that he received an excessive sentence.

14A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that 1) his attorney’s performance was deficient, and 2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Allen, 06-778, p. 9 (La.App. 5 Cir. 4/24/07), 955 So.2d 742, 750, writ denied, 08-2432 (La.1/30/09), 999 So.2d 754. The error is prejudicial if it is so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Allen, 06-788 at 10, 955 So.2d at 750. In order to show prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the case would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Allen, supra.

In order to prevail, the accused must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. An alleged error that is within the ambit of trial strategy does not establish ineffective assistance of counsel, because “opinions may differ on the advisability of such a tactic.” State v. Singleton, 05-634, p. 11, (La.App. 5 Cir. 2/14/06), 923 So.2d 803, 811, writ denied, 06-1208 (La.11/17/06), 942 So.2d 532.

An ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. State v. Cambre, 05-888, pp. 25-26 (La.App. 5 Cir. 7/25/06), 939 So.2d 446, 460, writ denied, 06-2121 (La.4/20/07), 954 So.2d 158. When there is sufficient evidence to consider some, but not all, of the allegations of ineffectiveness of counsel before it, this Court has declined to |saddress any of the claims on grounds that they should be addressed in their entirety by the district court on post-conviction relief at an evidentiary hearing. State v. Allen, 06-778 at 11-12, 955 So.2d at 751-52. Accordingly, we decline to review defendant’s ineffective assistance of counsel claims on appeal.

Further, appellate counsel filed an An-ders brief certifying that she reviewed the appeal record and determined there were no non-frivolous issues she could raise on appeal, which is further discussed herein. Defendant’s excessive sentence claim is reviewed, in that context, below.

Anders brief

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

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

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

Defendant’s appellate counsel asserts that she performed a detailed review of the record and could find no non-frivolous issues to raise on appeal. She points out that the district court properly advised defendant of his constitutional rights to a jury trial and confrontation, and his privilege against self-incrimination prior to accepting his guilty plea. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Counsel notes there were no pre-trial hearings in the district court; consequently, there are no adverse rulings for defendant to challenge on appeal.- Counsel acknowledges that defendant agreed upon a sentence as part of a plea bargain, and he may not, therefore, challenge the sentence on appeal. Counsel further notes that defendant entered a stipulation to the habitual offender bill, and 17since he received a negotiated habitual offender sentence, he may not challenge that sentence on appeal either.

Appellate counsel has filed a motion to withdraw as attorney of record which states she has complied with the provisions of Anders, and that she notified defendant of his right to file a pro se supplemental brief. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until July 7, 2010 to file a pro se supplemental brief. On June 29, 2010, defendant filed a pro se “Motion to Withdraw Supplemental Brief,” in which he expressed his intention to waive his right to file a supplemental pro se brief. Defendant, however, thereafter filed a supplemental pro se brief raising several assignments of error.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The record shows the district court properly advised defendant of his constitutional rights in accordance with Boykin. The judge ascertained that defendant understood those rights and that he wished to waive them and plead guilty. Additionally, defendant, his attorney, and the district judge signed a waiver of rights form which enumerated defendant’s rights and detailed the sentences he would receive pursuant to his guilty plea.

When a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. As counsel notes in her brief, there were no pre-trial rulings defendant could have reserved for review under State v. Crosby, 338 So.2d 584 (La.1976).

| ^Defendant entered an admission to the allegations in the habitual offender bill of information. The district court properly advised him of his right to a habitual offender hearing and his right to remain silent. Defendant stated he understood those rights and wished to waive them.

The trial court vacated defendant’s original sentence at the time it imposed the habitual offender sentence. Therefore, there are no issues for defendant to raise with respect to the original sentence. Defendant’s habitual offender sentence was imposed in accordance with a sentencing agreement. LSA-C.Cr.P. art. 881.2 A(2) provides, “[t]he defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This Court has recognized that a defendant is precluded from raising a claim of excessiveness on appeal when his sentence was imposed in conformity with a sentencing agreement set forth in the record at the time he admits to the allegations in a habitual offender bill. State v. Cross, 06-866, p. 4 (La.App. 5 Cir. 4/11/07), 958 So.2d 28, 30. In any case, defendant’s habitual offender sentence of 15 years was the minimum term to which he was exposed as a second felony offender. LSA-R.S. 14:60; LSA-R.S. 15:529.1 A(l)(a). Accordingly, there is no merit to defendant’s pro se claim of excessive sentence.

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

\,.ERRORS PATENT DISCUSSION

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

CONCLUSION

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

AFFIRMED; MOTION TO WITHDRAW GRANTED.

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

      . The State avers in its brief that counsel has satisfied the requirements of Anders and Jyles, and that there are no non-frivolous issues for appeal.


text:
    Cassandra GULLATT v. ALLSTATE INSURANCE COMPANY.
    No. 10-CA-448.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.

      George B. Recile, Attorney at Law, Mé-tame, LA, for Plaintiff/Appellant.
    Wade A. Johnson, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERT L. LOB RANO, Pro Tempore.
   JUDE G. GRAVOIS, Judge.

[2The plaintiff, Cassandra Gullatt, has appealed the trial court’s denial of her Motion for Summary Judgment. For the reasons that follow, we convert the plaintiffs appeal to a writ application and deny relief.

FACTS AND PROCEDURAL BACKGROUND

The plaintiff filed suit against her insurer, Allstate Insurance Company (“Allstate”), seeking to collect under the uninsured/underinsured motorist (“UM”) coverage provision of her policy, alleging that she sustained injuries in an accident caused by an uninsured or underinsured motorist. Apparently, Allstate denied that the plaintiff had UM coverage under the policy issued to the plaintiff. The plaintiff filed a Motion for Summary Judgment claiming that the UM waiver she allegedly executed was invalid. The trial court denied the plaintiffs motion, then pursuant to the plaintiffs request, ordered that the judgment “be designated as a final judgment for purposes of appeal.”

Is At the onset, we note that Louisiana Code of Civil Procedure Article 968 provides, in pertinent part, that “[a]n appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.” We recognize that Louisiana Code of Civil Procedure Article 1915 provides for the certification of partial final judgments. Article 1915 does not, however, supersede article 968. The certification of the denial of the plaintiffs Motion for Summary Judgment by the trial court did not convert a non-ap-pealable judgment into an appealable judgment. Rubin v. Westport Ins. Corp., 02-643 (La.App. 5 Cir. 12/11/02), 833 So.2d 1245, 1246. Rather, review of a judgment denying a motion for summary judgment is properly taken under this court’s supervisory jurisdiction. This Court has, however, the discretion to convert appeals of non-appealable judgments to applications for supervisory writs in cases where the appeal was filed within the thirty-day period allowed for the filing of an application for supervisory writs. Cole v. Cole, 07-504 (La.App. 5 Cir. 10/30/07), 971 So.2d 1185, 1188. The judgment in the instant case was rendered on March 31, 2010 and the plaintiffs motion for appeal was filed on April 21, 2010. Accordingly, in the interest of judicial economy, we hereby convert the plaintiffs appeal to an application for supervisory writs and will conduct a de novo review of the plaintiffs motion under our supervisory jurisdiction.

ANALYSIS

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This motion is a procedural device used to avoid a full-scale trial when there is no |4genuine issue of material fact. Craig v. Bantek West, Inc., 2004-0229 (La.App. 1 Cir. 9/17/04), 885 So.2d 1241, 1244. A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Garsee v. Botoie, 37,444 (La.App. 2 Cir. 8/20/03), 852 So.2d 1156, 1159. In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764, 765. The decision in ruling on a motion for summary judgment must be made with reference to the substantive law applicable to the case. McCord v. West, 07-958 (La.App. 5 Cir. 3/25/08), 983 So.2d 133, 137.

In her Motion for Summary Judgment, the plaintiff argues that the UM rejection form in question is not valid. She contends that in order for a UM rejection form to be valid, it must be dated by the insured. Attached to the plaintiffs motion is a UM form dated “5/10/04” bearing the plaintiffs signature and her initials next to the option rejecting UM coverage. Also attached to her motion is an affidavit in which the plaintiff attests that she did not date the UM waiver form. The plaintiff contends that in order to carry its burden of proving that the waiver form is valid, Allstate must show that the form was dated by the plaintiff, the insured, at the time of execution of the form. The plaintiff argues that Allstate cannot carry this burden.

In opposition to the plaintiffs motion, Allstate presented the affidavit of two insurance agents, Kim Migliore Ericksen and Charles Smith. Ms. Ericksen attested that she was employed by an Allstate agency owned by Mr. Smith, that she was the agent who processed the application for the plaintiff, that she could not recall the plaintiffs specific policy, but she “always had policy applicants | Ssign and date all forms before leaving the office,” and that she “would not, under any circumstances, date a form for a policy applicant.” Mr. Smith attested that, on the date in question (May 10, 2004), Ms. Erick-sen was employed by his agency and was a licensed insurance agent, no one else was employed by him other than Ms. Ericksen, Ms. Ericksen was the agent that processed the application for the plaintiff, and he had no contact with the plaintiffs policy.

LSA-R.S. 22:1295, formerly numbered 22:680, governs the issuance of uninsured motorist coverage in Louisiana. LSA-R.S. 22:1295(l)(a)(ii) provides, in pertinent part, as follows:

Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates.

In Duncan v. U.S.A.A. Insurance Company, 2006-363 (La.11/29/06), 950 So.2d 544, the Louisiana Supreme Court explained the statutory requirements of a valid UM form. The Court noted that the wording of the statute quoted above requires only: 1) that the rejection or selection be made on a form prescribed by the commissioner of insurance; 2) that the form be provided by the insurer; and 3) that the form be signed by the named insured or his legal representative. In interpreting this statute, the Court went on to find that the UM form prescribed by the 1 ficommissioner of insurance involves six tasks: 1) initialing the selection or rejection of coverage chosen; 2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; 3) printing the name of the insured or legal representative; 4) signing the name of the named insured or legal representative; 5) filling in the policy number; and 6) filling in the date. The Court found that all six tasks are pertinent in rejecting UM coverage. In further explaining the process of accomplishing of these tasks, the court went on to state, at page 552:

The insured initials the selection or rejection chosen to indicate that the decision was made by the insured. If lower limits are selected, then the lower limits are entered on the form to denote the exact limits. The insured or the legal representative signs the form evidencing the intent to waive UM coverage and includes his or her printed name to identify the signature. Moreover, the insured dates the form to determine the effective date of the UM waiver. Likewise, the form includes the policy number to demonstrate which policy it refers to.

(Emphasis added.)

Accordingly, under our interpretation of Duncan, in order for a UM rejection form to be valid, it must be dated by the insured at the time of signature.

In denying the plaintiffs Motion for Summary Judgment, after hearing argument, the trial court stated:

All right. The question is whether Miss Gullatt dated the form. I don’t know the answer to that question.
So after full review of the Record, oral argument of counsel and attachment of exhibits, Plaintiffs Motion for Summary Judgment is denied, because there remains a genuine issue of material fact that negates granting the motion. Extensively, the UMBI Waiver executed by Plaintiff complies with both the statutory and jurisprudential requirements in Louisiana for a valid rejection of the UMBI coverage. Here, Plaintiff has raised a tribal [sic] issue of fact regarding when and by whom the UMBI form was dated.
17Accordingly, because there remains a factual dispute, Plaintiffs Motion for Summary Judgment is denied.
(Emphasis in original.)

Accordingly, the trial court found that a genuine issue of material fact exists as to “when and by whom the UMBI form was dated” and accordingly denied the plaintiff the summary judgment relief requested.

On appeal, the plaintiffs sole argument is that the UM rejection form in question does not comply with the requirements set forth in Duncan because the plaintiff, according to her affidavit, as the insured, did not date the form. The plaintiff thus asserts that Allstate cannot bear the burden of proving by clear and unmistakable evidence that the waiver form is valid, i.e., that it was dated by the insured at the time of execution, and accordingly, summary judgment should have been rendered in the plaintiffs favor finding that UM coverage was not validly rejected.

Allstate argues in opposition that although Ms. Ericksen in her affidavit admitted that she had no specific recollection of processing the plaintiffs policy application, she “always had policy applicants sign and date all forms before leaving the office,” and that she “would not, under any circumstances, date a form for a policy applicant,” thereby indirectly asserting that the plaintiff did in fact date her UM rejection form, thereby precluding summary judgment herein.

In light of our interpretation of Duncan as set forth above and the conflicting nature of the competing affidavits presented by the parties, we find that a genuine issue of material fact exists in this matter as to whether the plaintiff dated the UM rejection form in question. Accordingly, we find that the trial court did not err in denying the plaintiffs Motion for Summary Judgment.

^CONCLUSION

For the reasons set forth above, we convert the plaintiffs appeal to a writ application and deny the relief requested.

APPEAL CONVERTED TO WRIT APPLICATION; WRIT CONSIDERED; RELIEF DENIED.

      . The record on appeal is designated, and as such, it does not contain all of the pleadings filed in this matter.

      . Although the number of the statute changed, the language quoted in this opinion was not changed.

      . In Duncan, the Court held the rejection form to be invalid due to the omission of the policy number on the form.