author: EDWIN A. LOMBARD, Judge.

text:
    R-PLEX ENTERPRISES, LLC v. Joseph DESVIGNES.
    No. 2010-CA-1337.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 2011.

      Stephanie A. Fratello, New Orleans, LA, for R-Plex Enterprises, LLC and Harriet-ta Reed.
    Matthew A. Wellman, Harahan, LA, for Joseph Desvignes and Club 1355, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   EDWIN A. LOMBARD, Judge.

_JjThe plaintiffs, R-Plex Enterprises, LLC and Harrietta Reed, appeal the trial court judgment granting the exceptions of res judicata and no cause of action filed by the defendants, Joseph Desvignes and Club 1355, Inc.

Relevant Facts and Procedural History

The property underlying this dispute, located at 1355 St. Bernard Ave, is owned by the plaintiffs and managed by Ernest Joubert Company (Joubert). Joubert, through its employee Steve Carson, leased the property to Club 1355, Inc., (with Joseph Desvignes signing as a personal guarantor) to be used as a bar and restaurant. The parties entered into five separate one-year lease agreements, with the final one (at issue in this dispute) covering the period July 1, 2005, though June 30, 2006. Upon termination of the lease on June 30, 2006, Mr. Carson conducted a walk-through of the property on July 3, 2006. On June 29, 2007, the plaintiffs filed the instant lawsuit, asserting that the walk-through revealed contents of the premises had been removed and interior walls had been remodeled without permission and alleging intentional interference or conversion of movable property, intentionally interference with immovable property or committed property damage, and breach of contract.

| aIn response, the defendants filed an exception of res judicata and an exception of no cause of action, arguing that any claims based upon the 2005-2006 lease agreement between the parties should have been filed as a reconventional demand in their suit filed in First City Court against Joubert seeking return of the security deposit. In addition, the defendants contend that all alterations took place under the 2003-2004 lease agreement and, accordingly, because the lease agreement contains an “As Is” clause, the defendants received the property in the same condition as it was at the start of the 2005 lease.

After a hearing, the trial court granted the exception of res judicata. The trial court also granted the exception of no cause of action, but provided the plaintiffs with the right to amend their petition.

The plaintiffs filed a motion to clarify the judgment. Thereafter, the court entered a judgment which granted the exception of res judicata, dismissing all of the plaintiffs’ claims with prejudice. The court again granted the exception of no cause of action, providing plaintiffs with the right to amend their petition.

Assignment of Error I

[I] The plaintiffs argue that the trial court erred in granting the exception of res judicata because the exceptional circumstances standard, found in La.Rev. Stat. 13:4232(A)(1), is applicable to the facts presented herein. Further, plaintiffs argue that the elements of res judicata were not met.

The standard of review of an exception of res judicata requires an appellate court to determine if the trial court’s decision is legally correct or incorrect. Myers v. National Union Fire Ins., 2009-1517, p. 5 (La.App. 4 Cir. 5/19/10), 43 So.3d 207, 210, citing Ins. Co. of North America v. Louisiana Power & Light, 2008-1315, p. 5 (La.App. 4 Cir. 3/4/09), 10 So.3d 264, 267. The Myers court further noted, “a final judgment has the authority of res judicata only as to those issues presented in the pleadings and conclusively adjudicated by the court.” Myers, 2009-1517, p. 5, 43 So.3d at 210, citing Ins. Co. of North America, 2008-1315, p. 6, 10 So.3d at 268. The doctrine of res judicata is stricti juris and, accordingly, any doubt concerning the applicability of the principle must be resolved against its application. Myers, 2009-1517, p. 5, 43 So.3d at 210, citing Ins. Co. of North America, 2008-1315, p. 7, 10 So.3d at 268.

The doctrine of res judicata in Louisiana is set forth in La.Rev.Stat. 13:4231, which provides as follows:

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

The Louisiana Supreme Court examined this doctrine and determined that based upon the language of the statute, five elements must be satisfied for a finding that a second action is precluded by res judicata: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action 14asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Chevron USA, Inc. v. State, 2007-2469, p. 10 (La.9/8/08), 993 So.2d 187, 194; Myers, 2009-1517, p. 6, 43 So.3d at 211.

Accordingly, in addressing the plaintiffs’ contention that the elements of res judica-ta are not met, we must look at the judgment obtained in the first proceeding. In that case, the defendants filed suit against Joubert seeking a return of their security deposit paid in connection with the lease of the property located at 1355 St. Bernard Ave. Prior to trial, however, the defendants and Joubert entered into a compromise or settlement agreement in the First City Court proceedings wherein Joubert returned the $1,200.00 security deposit to the defendants and Joseph Desvignes absolved Joubert from any liability regarding the property located at 1355 St. Bernard Ave.

While the doctrine of res judicata is ordinarily premised on a final judgment, a valid compromise may form the basis of a plea of res judicata. Silva v. State Farm Mut. Auto. Ins. Co., 2009-0686, p. 5 (La.App. 5 Cir. 3/23/10), 38 So.3d 934, 937, citing Ortego v. State, Dept. of Trans. and Dev., 96-1322, p. 8 (La.2/25/97), 689 So.2d 1358, 1364. In this case, the defendants assert that Joubert is the agent of the plaintiffs and that the plaintiffs, as the principals, are bound by the actions of their agent. The plaintiffs disagree, arguing that because they were not a party to the compromise agreement they are not bound by the compromise agreement.

The plaintiffs are correct. Under Louisiana law, authority to enter into a compromise must be expressly given, La. Civ. Code. art. 2997, but there is no evidence in the record that the plaintiffs gave Joubert express authority to enter |sinto a compromise regarding their rights. See Townsend v. Square, 94-0758, p. 8 (La.App. 4 Cir. 9/29/94), 643 So.2d 787, 790 (while attorneys are presumed to have authority to negotiate, they may not enter into a binding agreement without the client’s clear and express consent). Thus, without the clear and express consent of the plaintiffs, Joubert could not enter into a binding agreement or compromise on behalf of the plaintiffs. Moreover, the deposition testimony of Harrietta Reed and Steve Carson indicates that the plaintiffs did not even know of the litigation in First City Court. Accordingly, because the compromise agreement was not valid as to the plaintiffs, it may not form the basis of a plea of res judicata in this matter and the decision of the trial court granting the exception of res judicata is legally incorrect. Based upon this finding, we pretermit discussion of whether the facts presented herein rise to the level of exceptional circumstances as contemplated by La.Rev.Stat. 13:4232(A)(1).

Assignment of Error II

In their second assignment of error, the plaintiffs argue that the trial court erred in granting the exception of no cause of action because their petitions failed to state a cause of action against one or both defendants. A peremptory exception of no cause of action is a question of law that requires the appellate court to conduct a de novo review. Raspanti v. Litchfield, 2005-1512, 2006-0331, p. 5 (La.App. 4 Cir. 11/21/06), 946 So.2d 234, 238 (citation omitted). The function of the exception is to determine whether there law provides a remedy under the factual allegations of the petition and, accordingly, should be granted only when there is no doubt that the plaintiff is unable to prove any set of facts that would entitle him to relief. Id. Thus, for purposes of determining the issues raised by the exception, “the well]pleadedfi facts in the petition must be accepted as true.” Fink v. Bryant, 2001-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349. “No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La.Code Civ. Proc. art. 931.

In this case, the plaintiffs original and amending petitions allege that a commercial lease agreement between the parties terminated on June 30, 2006, and that the defendants intentionally interfered with movables or committed a conversion of the movables, intentionally interfered with immovable property or committed property damage, and breached the contract between the parties. Specifically, the plaintiffs allege that the defendants breached the contract between the parties and caused tortious damage by removing movable property without permission and demolishing portions of the interior walls of the property without notice to, or the consent of, the plaintiffs.

In their exception, the defendants assert that the plaintiffs fail to state a cause of action because the lease that ended on June 30, 2006, was a one-year lease agreement containing an “As Is” clause. Thus, because all the renovations complained of occurred in 2003-2004 during the term of a prior lease agreement, the property was returned to the plaintiffs at the end of the lease in exactly the same condition as it was accepted by the defendants on July 1, 2005. In support of their contentions, defendants attached a copy of the pertinent lease and portions of deposition testimony to their motion and memorandum. While these assertions (with supporting documents) may have merit as an affirmative defense or on motion for summary judgment, upon review of an exception of no cause of action, we may only consider the allegations in the petition, ie., (1) a lease existed; (2) the lease provided certain duties among the parties; and (3) the defendants breached 17those duties. Clearly, taken as true, these allegations are sufficient to state a cause of action against the defendants and, if proven, the law provides a remedy.

Conclusion

Accordingly, upon de novo review, the judgment granting the exceptions of res judicata and no cause of action is reversed and the case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . The defendants also filed an exception of no right of action. However, that exception was not ruled on by the trial court and there is no assignment of error concerning the exception. Therefore, we will not address the exception of no right of action.


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge. BONIN, J.,

license: Public Domain

text:
    CRUTCHER-TUFTS RESOURCES, INC., Crutcher-Tufts Resources, L.P., Albert B. Crutcher, Jr., Frederick J. Tufts, Allison McAshan, and Crutcher Oil and Gas-III, L.P. v. J. David TUFTS, III, Tufts Energy, L.L.C., Claudia Tufts, Robert Tufts, and Hal Simeon, in his capacity as a trustee of the JDT/CLT Family Trust.
    No. 2010-CA-1254.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 2011.

      Robert A. Kutcher, Nicole S. Tygier, Chopin Wagar Richard & Kutcher, LLP, Metairie, LA, for Plaintiff/Appellee, Crutcher-Tufts Resources, L.P., through Trevor G. Bryan, Liquidator.
    Walter C. Thompson, Jr., Charles M. Pisano, Jan K. Frankowski, Barkley & Thompson, L.C., New Orleans, LA, for Defendant/Appellant, J. David Tufts, III.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PATRICIA RIVET MURRAY, Judge.

|rJ. David Tufts, III, appeals the trial court’s granting of partial summary judgment finding him liable for any damages caused to Crutcher-Tufts Resources, LP by his improper signing of certain hedge contracts on its behalf. For the reasons that follow, we reverse the trial court’s granting of partial summary judgment.

FACTS AND PROCEEDINGS BELOW

This lawsuit, which began in 2002, essentially involves allegations of mismanagement of two separate legal entities, both formed under Delaware law, namely Crutcher-Tufts Resources, LP [hereinafter referred to as “the Partnership”], and Crutcher-Tufts, Inc. [hereinafter referred to as “the Corporation”], both of which were discharged in bankruptcy in 2008. Both entities were founded by and composed of various members of the Crutcher and Tufts families. At all pertinent times, the Corporation served as the managing partner of the Partnership, which |2owned various oil and gas properties. Several predicate issues in this litigation have been addressed by this court in at least three prior appeals.

The instant dispute concerns the trial court’s granting of a motion for partial summary judgment filed by the Partnership and the Corporation against J. David Tufts, III, seeking a declaration holding Mr. Tufts personally liable for any damages caused by his April 10, 2002, signing of two hedge contracts as president of the Corporation, on behalf of the Partnership. Approximately one year after Mr. Tufts signed these contracts, a minority shareholder of the Corporation filed a quo war-ranto action challenging the validity of the majority’s removal and replacement of two directors from the Corporation’s six-member board in March, 2002. The plaintiff in that suit also sought a declaration that the subsequent election of officers, including Mr. Tuft’s reelection as president, held by the reconstituted board was invalid.

In January, 2004, the district court found that the majority shareholders had lacked the authority to reconstitute the board, which ruling invalidated Mr. Tufts’ re-election; this court affirmed on February 16, 2005. That holding serves as the primary basis for the motion for partial summary judgment asserted herein. In the trial court, the movers argued that because Mr. Tufts had not been validly elected president of the Corporation, his signing of the hedge contracts was improper. Alternatively, they contended that Mr. Tufts’ signing of the contracts had not been |.^authorized by the Board of Directors of the Corporation, as required by the Corporation’s bylaws.

The district court heard the motion on April 9, 2010. On May 28, 2010, the district court rendered a written judgment and Reasons for Judgment finding that Mr. Tufts had no authority to bind the Partnership because the minutes of the Corporation did not reflect that its Board had approved the hedge contracts, as required by the bylaws. Therefore, the court granted partial summary judgment holding “as a matter of law” that the hedge contracts had been improperly executed and that Mr. Tufts was liable for any damages resulting from his unauthorized execution of these contracts. On June 15, 2010, upon Mr. Tufts’ motion, the district court certified its judgment as final for the purposes of an immediate appeal. This appeal followed.

ISSUES

Mr. Tufts asserts the trial court erred by granting summary judgment in favor of the Partnership because there is at least a genuine issue of fact as to whether Mr. Tufts is legally liable for his signing of the hedge contracts. He also contends that that the trial court erred by granting summary judgment in favor of the Corporation because the court had previously dismissed with prejudice the Corporation’s claim for damages against Mr. Tufts.

Although the motion was brought jointly by the Partnership and the Corporation, and summary judgment was granted in favor of both, only the ^Partnership has filed an appellee brief in this court. In that brief, it is acknowledged that, prior to the hearing on the motion the trial court had dismissed with prejudice the Corporation’s claim. The appellee brief therefore concedes that the inclusion of the Corporation in the May 28, 2010, judgment was error.

As to the granting of summary judgment in favor of the Partnership, the appellant argues the trial court erred because:

(1) Mr. Tufts was authorized to act on behalf of the Partnership when he signed the hedge contracts; or alternatively, whether he was so authorized is a genuine issue of material fact;
(2) The Agreement of Limited Partnership in effect between the Partnership and the Corporation provides that the Partnership cannot bring a claim for damages against an officer or agent of the Corporation, such as Mr. Tufts, unless the act or omission complained of constituted gross negligence or willful misconduct; and no evidence was presented to establish that Mr. Tufts’ signing of the hedge contracts constituted either; or alternatively, whether his conduct met this standard is a genuine issue of material fact;
(3) Mr. Tufts is not legally liable for his signing of the contracts, even if unauthorized, because the Partnership subsequently acquiesced in and/or ratified those contracts; or alternatively, whether ratification occurred is a genuine issue of material fact.

| .STANDARD OF REVIEW

The granting of summary judgment by a district court is reviewed de novo, with the appellate court using the same criteria that governed the district court’s consideration of whether summary judgment is appropriate. Safeway Insurance Co. of La. v. Premier Automotive Superstore, 09-0074, p. 2 (La.App. 4 Cir. 5/27/09), 13 So.3d 236, 238. Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. When, as in the instant case, the party bringing the motion is also the party that will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the mover. Henly v. Phillips Abita Lumber Co., 2006-1856, p. 4 (La.App. 1 Cir. 10/3/07), 971 So.2d 1104, 1108. Once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the adverse party to present evidence demonstrating that one or more material factual issues remain. Fossier v. Jefferson Parish, 2007-926, p. 8 (La.App. 5 Cir. 4/15/08), 985 So.2d 255, 259.

Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050. Thus, any dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Barbarin v. Dudley, 2000-0249, p. 6 (La.App. 4 Cir. 12/20/00), 775 So.2d 657, 660. In deciding a motion for summary judgment, the district court cannot make credibility | (^determinations or weigh conflicting evidence. Hutchinson v. Knights of Columbus, Council No. 5747, 2003-1533, p. 8 (La.2/20/04), 866 So.2d 228, 234. Therefore, summary judgment is generally not an appropriate disposition for cases requiring a judicial determination of subjective facts, such as motive, intent, good faith, or knowledge. Coates v. Anco Insulations, Inc., 2000-1331, p. 7 (La.App. 4 Cir. 3/21/01), 786 So.2d 749, 754.

DISCUSSION

We first note that the transcript of the April 9, 2010 hearing contains an acknowl-edgement by Mr. Robert Kutcher (counsel for both the Corporation and the Partnership) that because the Corporation’s claim against Mr. Tufts had been dismissed with prejudice prior to the bringing of the motion for summary judgment, the motion was being urged on behalf of the Partnership alone. The record confirms that the Corporation’s claim against Mr. Tufts was dismissed on exceptions in May, 2007, which judgment is now final. We therefore find that the trial court erred by granting partial summary judgment on behalf of the Corporation, and we reverse that determination.

With regard to the Partnership, Mr. Tufts argues that partial summary judgment was improper because he was authorized to sign the hedge contracts, or even if he was not so authorized, he reasonably believed he was, such that his signing of them did not constitute gross negligence or willful misconduct. The transcript of the motion hearing and the trial court’s Reasons for Judgment reveal that the court granted partial summary judgment on a single basis: the fact that the minutes of the Corporation’s Board meetings do not reflect that the Board 17approved the hedge contracts. In view of the evidence presented, however, we do not find this fact to be dispositive of the issue before the trial court.

The trial court relied primarily upon Article IV, Section 5 of the Corporation’s Amended Bylaws, which states, in pertinent part: “The President may sign and execute in the name of the Corporation deed, mortgages, bonds, contracts or other instruments authorized by the Board of Directors.” As the trial court interpreted this provision, the absence of a Board resolution or any other mention of the 2002 hedge contracts from the minutes of the Board meetings is unequivocal proof that Mr. Tufts did not have authorization to sign these contracts and therefore he is liable for any damages to the Partnership resulting therefrom.

Mr. Tufts contends that, even assuming he lacked authorization to sign the contracts, he cannot be held legally liable for the resulting damages to the Partnership unless the Partnership has shown that his actions constituted gross negligence or willful misconduct. We agree. Article V, Section 5.3(a) of the Agreement of Limited Partnership in effect between the Partnership and the Corporation provides, in pertinent part:

The Managing General Partner and the Partners and their partners, officers, directors, employees and agents shall not be liable, responsible or accountable in damages or otherwise to the Partnership or the other Partners for any acts or omissions that do not constitute gross negligence or willful misconduct (simple negligence not giving rise to liability)....

Under Delaware law, which is indisputably applicable to the interpretation of this agreement, “gross negligence” is defined as follows:

| sGross negligence has a stringent meaning under Delaware corporate (and partnership) law, one “which involves a devil-may-care attitude or indifference to duty amounting to recklessness.” .... In order to prevail on a claim of gross negligence, a plaintiff must plead and prove that the defendant was “recklessly uninformed” or acted “outside the bounds of reason.”

Albert v. Alex. Brown Management Services, Inc., 31 Del. J. Corp. L. 267, 2005 WL 2130607, p. 4 (Del.Ch., Aug.26, 2005) (citations omitted). Similarly, “wilful misconduct” is “unlawful or improper behavior” that is “committed voluntarily and intentionally.” See Surles v. 1401 Condominium Ass’n, 06-12-323, 2008 WL 704323, p. 4 (Del.Com.PL, Jan.3, 2008). The parties do not dispute that these definitions accurately reflect Delaware law on this issue.

In his written opposition to the motion for summary judgment and again on appeal, Mr. Tufts argues that the Partnership neither alleged nor proved that his actions constituted gross negligence or willful misconduct. In its appellee brief, the Partnership does not dispute the applicability of the gross negligence/willful misconduct standard, but argues that there is sufficient evidence in the record from which this court could conclude that Mr. Tufts’ signing of the hedge contacts met this standard.

Mr. Tufts argues that at the pertinent time, he believed he was the validly-elected President of the Corporation, and he signed the hedge contracts because he believed doing so was in the best interest of the Partnership. In an affidavit submitted in opposition to the motion, Mr. Tufts averred that until January 28, 2004 (when the district court determined that two of the persons who had voted for his reelection were not properly-elected members of the Board), he “believed in good faith that [he] had been properly reelected President of CTR, Inc.” He further averred that at the time he executed the hedge contracts in 2002, he believed they|3were “a prudent financial strategy to protect CTR, LP from the potential risk of a decline in the price of oil.”

As the Louisiana Supreme Court has stated, in deciding a motion for summary judgment, the court must assume all affi-ants are credible. Hutchinson, supra, at p. 8, 866 So.2d at 234. Moreover, according to the above-cited Delaware law, if Mr. Tufts’ beliefs were reasonable, his actions cannot be deemed gross negligence or willful misconduct. Therefore, we find that whether Mr. Tufts’ signing of the hedge contracts constituted gross negligence and/or willful misconduct is, at the very least, a disputed issue of material fact. The hearing transcript and the Reasons for Judgment do not indicate that the trial court addressed this issue, although it was raised in Mr. Tufts’ opposition to the motion. Nevertheless, we conclude that the record does not contain sufficient evidence to demonstrate that Mr. Tufts’ conduct constituted gross negligence or willful misconduct, which would be necessary to impose liability on the part of Mr. Tufts. Because this issue constitutes a genuine issue of material fact that precludes summary judgment, we find that the partial summary judgment in favor of the Partnership was improperly granted.

In so concluding, we note that the appellant, Mr. Tufts, asserts two other assignments of error which, in our view, also present genuine, disputed issues of fact. He first argues that his signing of the hedge contracts was authorized because the Agreement of Limited Partnership explicitly gave the Corporation the authority to “enter into hedging transactions” on behalf of the Partnership, and because the 1 i02QQ2 hedge contracts were merely extensions of ones that had been explicitly authorized by Board resolution in 2000. Additionally, Mr. Tufts asserts that he cannot be held liable for damages to the Partnership because the Partnership ratified the hedge contracts after he signed them. Although we find that these issues do present genuine issues of fact, we note that further interpretation of Delaware law would be necessary to determine whether these factual issues are also material, so as to preclude summary judgment.

For instance, the trial court obviously interpreted Article IV, Section 5 of the Corporation’s Bylaws to mean that a contract was not “authorized” unless the Board’s minutes reflected that it had been expressly authorized at a Board meeting. Mr. Tufts, however, asserts that under Delaware law, “authorization” is not so limited. If Mr. Tufts’ interpretation of Delaware law is correct, whether his signing of the contracts was authorized becomes a material issue of fact. Similarly, we find there is a disputed issue of fact with regard to whether the Partnership ratified Mr. Tufts’ actions. However, the issue of ratification is only material if, as Mr. Tufts argues, Delaware law would consider ratification as a complete bar to the Partnership’s right to collect damages from its own agent. The Partnership contends that under Delaware law, ratification would have no effect upon liability unless a third party were seeking to recover damages, which is not the case here. The Partnership therefore asserts that, between itself and Mr. Tufts, ratification is related only to quantification or mitigation of damages, not liability.

Because it is unnecessary for us to reach these disputed issues of Delaware law in order to render our decision on this appeal, we pretermit those issues, ^Accordingly, we conclude that the trial court erred by granting summary judgment in favor of the Partnership because there remains at least one genuine issue of material fact.

CONCLUSION

For the reasons stated, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

BONIN, J., concurs with reasons.

BONIN, J.,

concurs with reasons.

|,I respectfully concur in the result.

In my view, the only issue which precluded partial summary judgment in this matter is that there is a genuine issue of material fact whether the partnership, or the partners, ratified David Tufts’ purchase of the questioned hedge contracts. “Ratification is a declaration whereby a person gives his consent to an obligation incurred on his behalf by another without authority.” LA. CIVIL CODE ART. 1843. “Tacit ratification results when a person, with knowledge of an obligation incurred on his behalf by another, accepts the benefit of that obligation.” Id.

At the trial David Tufts would bear the burden of proving that his actions were ratified. See Quilio & Assocs. v. Plaquemines Parish Government, 05-0803 (La.App. 4 Cir. 5/10/06), 931 So.2d 1129, 1137. Although the partnership agrees that there are disputed material factual issues regarding ratification, because it contends that they are relevant not to liability but only to damages, the partnership in its motion made no effort to point out to the trial court that there was an absence |¡>of factual support for an essential element of David Tufts’ defense on which David Tufts would bear the burden of proof. See LA. C.C.P. ART. 966 C(2). Thus, David Tufts was not yet required to “produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.’’ Id. (emphasis added). In any event, David Tufts did produce some factual support from which it may be argued that Albert Crutcher and the other partners tacitly ratified the purchase.

Consequently, on de novo review, I agree that the partial summary judgment should be reversed.

      . See: Crutcher v. Tufts, 04-0653 (La.App. 4 Cir. 2/16/05), 898 So.2d 529; Crutcher-Tufts Resources, Inc. v. Tufts, 07-1556 (La.App. 4 Cir. 9/17/08), 992 So.2d 1091; Crutcher-Tufts Resources, Inc. v. Tufts, 09-1572 (La.App. 4 Cir. 4/28/10), 38 So.3d 987.

      . See La. C.C.P. art. 1915.

      . The Partnership and the Corporation were represented by the same counsel at the hearing in the district court.

      . The trial court’s Reasons for Judgment reflect that the court also relied upon Mr. Tufts' testimony at the June 14, 2005 hearing in U.S. Bankruptcy Court wherein Mr. Tufts acknowledged that he himself had control over the content of the minutes of the Board meetings.

      . Although the trial court's Reasons for Judgment do not mention this fact, there is no dispute that Delaware law applies to the interpretation of the Bylaws and the Agreement of Limited Partnership. See Crutcher v.Tufts, 04-0653 (La.App. 4 Cir. 2/16/05), 898 So.2d 529.

      . The appellee argues in its brief that counsel for Mr. Tufts failed to raise this issue at the hearing on the motion for summary judgment. However, considering that Mr. Tufts raised the issue in his written opposition to the motion, and that the trial court took the matter under submission for more than a month before rendering its decision, we find that the trial court should have considered this issue, and we therefore must assume that it did. Nevertheless, we cannot ignore an issue that clearly was raised before the trial court simply because the record does not reflect whether or not the trial court considered the issue in rendering its decision.

      . On this discrete point, I am of the view that the partnership is in error. See LA. CIVIL CODE ART. 1814 ("The effects of confirmation and ratification are retroactive to the date of the confirmed or ratified obligation.”).


author: MAX N. TOBIAS, JR., Judge.

text:
    Audrey WILLIAMS v. ORLEANS PARISH SCHOOL BOARD.
    No. 2010-CA-1441.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 9, 2011.

      Audrey M. Williams, New Orleans, LA, in Proper Person, Plaintiff/Appellant.
    Richard L. Seelman, Fontana & Seel-man, LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

| Audrey Williams (“Williams”) appeals the judgment by the Office of Workers’ Compensation granting the motion for involuntary dismissal filed by the Orleans Parish School Board (“OPSB”). For the following reasons, we affirm.

Williams filed a disputed claim for compensation alleging that she was injured on 7 July 1998 in the course and scope of her employment with the OPSB. The parties entered into a consent judgment on 17 October 2000 regarding her initial disputed claim for compensation. She filed the instant disputed claim for compensation on 13 September 2001, alleging that the consent judgment entered into on 17 October 2000 was insufficient; that medical evidence was withheld; and that she suffered a change of condition to total, permanent disability. Williams was represented by counsel at the time the consent judgment was entered and during various portions of the present claim.

The OPSB answered the disputed claim for compensation, asserting affirmative defenses and alleging that all compensation due Williams had been paid.

At trial on 16 June 2010, Williams attempted to offer into evidence 50 items. Of the 50 items, the court admitted five items into evidence and held the remaining 1 g45 inadmissible. The court allowed Williams to introduce two letters written to the court; the deposition of Dr. Manale, a treating physician; a pay summary from the OPSB; and a prescription profile. Of the 45 items deemed inadmissible, 42 were uncertified medical records and billing statements; one was a letter between Williams’ prior attorneys; one was an un-certified document from the Social Security Administration, with uncertified medical records attached; and one was a check stub for reimbursement of medical travel. Williams did not proffer the excluded documents. At the close of Williams’ testimony, the OPSB moved for an involuntary dismissal, which the trial court granted. From that judgment, Williams appeals.

An appellate court reviews workers’ compensation cases like that before this court under the manifest error or clearly wrong standard of review. Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. The findings of a workers’ compensation judge will not be set aside unless they are found to be clearly wrong in light of the record in its entirety. Id.

In a trial, once a plaintiff has completed the presentation of his evidence, any party may move for dismissal of the action as to him on the ground that upon the facts and law, plaintiff has shown no right to relief. La. C.C.P. art. 1672 B. The standard for granting an involuntary dismissal in a bench trial in a defendant’s favor is lower than the standard for granting a directed verdict in a jury trial. Falgout v. Louis-Jeune, 00-2452, 00-2453, p. 9 (La.App. 4 Cir. 10/3/01), 799 So.2d 610, 616. In deciding a motion for directed verdict, the trial court is required to consider the evidence in the light most favorable to the plaintiff; in a motion for involuntary dismissal, the court is required to evaluate the evidence without applying any special inferences in favor of either party. Id. The trial court is |3granted much discretion in determining whether to grant a motion for involuntary dismissal. Id. at p. 9, 799 So.2d at 616-617.

Williams’ pro se brief to this court does not comport with the requirements of Rule 2-12.4 of the Uniform Rules of the Courts of Appeal, which requires that an appellant’s brief include:

A concise statement of the case, the ruling or action of the trial court thereon, a specification or assignment of alleged error relied upon, the issues presented for review, an argument confined strictly to the issues of the case free from unnecessary repetition, giving accurate citations of the pages of the record and authorities cited and a short conclusion stating the precise relief sought.

Williams’ brief lacks specification or assignment of alleged error, identification of issues presented for review, contains unnecessary repetition, and does not contain a citation to any page of the record. However, Williams is appearing pro se and we will address her arguments and examine the record using the applicable standard of review to determine whether error exists in the judgment. See La. C.C.P. art. 2129.

Williams argues the amount of average weekly wages utilized to arrive at the supplemental earnings benefits awarded in the consent judgment was incorrect. Further, she argues that she was a seasonal employee and that the amount of supplemental earnings benefits should be calculated in accordance with that classification.

A consent judgment has binding force from the presumed voluntary acquiescence of the parties, not from adjudication by the court, and may be annulled or rescinded for an error of fact or error of the principal cause of the agreement. Taylor v. Orleans Parish School Bd., 03-2023, p. 4 (La.App. 4 Cir. 9/1/04), 883 So.2d 449, 451.

1 ./Williams asserts errors of fact in the consent judgment. To support her argument, she relies upon her testimony and her payroll records from January 1998 through June 1998. The consent judgment does not state an average weekly wage. However, it provides, “[djefendant, ORLEANS PARISH SCHOOL BOARD, agrees to reinstate monthly Supplemental Earnings Benefits in the amount of $87.09 per month (Eighty-seven dollars and nine cents) in accordance with vocational rehabilitation services and identification of light duty employment on February 11, 2000.” [Emphasis supplied.] The amount of an award of supplemental earnings benefits is based upon the differences between the claimant’s pre-injury average wage and the claimant’s proven post-injury monthly earning capacity. See La. R.S. 23:1221(3)(a); Taylor v. J.C. Penney, 06-1520, p. 12 (La.App. 4 Cir. 5/23/07), 959 So.2d 549, 556. The judgment clearly states that it took into account reports that Williams was able to engage in light duty employment, even if she did not actually work. She alleges that she was a seasonal employee and that she has never been able to work.

The court allowed the deposition of Dr. Manale to be introduced. Dr. Manale began treating Williams in 2007, but his medical office had been treating her since 1998. Dr. Manale acknowledged that the doctors from his medical office who had treated Williams in the past indicated that she could engage in light work, but that she should not be a laborer. He stated that he knew that other doctors concluded that she could engage in light duty employment as late as December 2004. In her calculations, Williams ignores the finding that she could perform light duty employment. She failed to demonstrate that her average weekly wage, coupled with the finding that she could perform light duty employment, provided an incorrect figure for supplemental earnings benefits.

| r,Further, Williams states that her medical evidence was withheld during the first proceeding. She was represented by counsel during the first proceeding and specifically at the time of the consent judgment. No proof in the record before us establishes that any counsel withheld medical evidence from the trial court.

Thus, the decision of the workers’ compensation judge denying Williams’ request to overturn or modify the consent judgment on the issue of calculations is not clearly wrong or manifestly erroneous.

Next, Williams argues that the OPSB owes her past due payments of temporary total disability from 18 October 2000 thru 19 August 2001 and permanent disability or total impairment from August 2001 to the present.

A claimant is allowed to seek a modification of a workers’ compensation judgment. Specifically, the law provides:

Upon the application of any party in interest, on the ground of a change in conditions, the workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.

La. R.S. 23:1310.8 B.

Therefore, Williams bears the burden of proving a change in her condition and its causal relation with the employment accident by a preponderance of the evidence. Amar v. Industrial Safety and Health, 01-0772, p. 5 (La.App. 4 Cir. 1/2/02), 805 So.2d 439, 441. The Amar court noted that the Louisiana Supreme Court interpreted the phrase “change in condition”, as utilized in La. R.S. 23:1310.8 B, as follows:

| r,The employee is not permitted to reliti-gate his original condition but must show a change in his compensable condition, such as progression, deterioration, or aggravation of the condition, achievement of a disabling character by a previously asymptomatic complaint, appearance of new and more serious features, or failure to recover within the time originally predicted.

Amar, pp. 4-5, 805 So.2d at 441, quoting Bordelon v. Vulcan Materials Co., 472 So.2d 5, 10 (La.1985).

As previously noted, Williams testified that since the accident, she has always been medically unable to work and unable to earn 90% of her wages. However, she is not entitled to relitigate her initial condition. She must prove a change in her compensable condition.

To prove her claim of temporary and/or permanent disability, Williams sought to introduce 42 documents — medical records and billing statements. A workers’ compensation judge is not be bound by technical rules of evidence or procedure other than as specifically provided in La. R.S. 23:1317 or other laws. One of the rules promulgated by the Louisiana Department of Labor is LAC 40:1:6209, which provides:

Expert testimony may be admitted by:
(1) Reports of any health care provider certified as a true copy in accordance with the Louisiana Revised Statutes 13:3715.1.
(2) Deposition.
(3) Oral examination in open court proceedings; however, no more than two physicians may present testimony for either party except by order of the judge.
(4) Any other manner provided by law.

See also Dick v. B & B Cut Stone, Co., L.L.C., 40,441, pp. 6-7 (La.App. 2 Cir. 12/14/05), 917 So.2d 1191, 1195.

17While Williams appeared pro se, she was still required to follow the workers’ compensation hearing rules. Dick, at p. 6, 917 So.2d at 1195. She lacked certified copies of her medical records; the uncertified copies were properly excluded from evidence by the trial judge. The uncertified copies of her medical records, as well as any other evidence not properly and officially offered and introduced, cannot be considered. Ritter v. Exxon Mobile Corp., 08-1404, p. 9 (La.App. 4 Cir. 9/9/09), 20 So.3d 540, 546, citing Denoux v. Vessel Management Services, Inc., 07-2143 (La.5/21/08), 983 So.2d 84. Williams attached documents to her appellant brief, mostly medical records. She obtained certified copies of some of the records that were excluded at trial because they were uncertified. However, an appellate court has no authority to consider evidence presented for the first time on appeal. Rogers v. Wackenhut Services, Inc., 05-0459, p. 8 (La.App. 5 Cir. 1/17/06), 921 So.2d 1076, 1081. Thus, we are unable to consider any documents attached to Williams’ appellant brief that were not admitted into evidence at trial.

The workers’ compensation judge properly allowed Dr. Manale’s deposition to be introduced into evidence. As to Williams’ condition up to 2004, Dr. Manale testified that he knew other doctors from his office found Williams could engage in light duty-employment as of December 2004 based on notations in her chart.

As to her current condition, Dr. Manale testified that Williams should not work due to multiple problems. Dr. Ma-nale averred that Williams appeared to be in considerable pain during her initial visit with him in 2007. He stated that “her neck showed restricted motion, tenderness, and [sic] but a normal neurologic exam. In other words, I couldn’t detect any weakness or paralysis in her limbs, upper limbs.” As for his lumbar exam of her, Dr. Manale testified it “showed that |sshe had a little scoliosis, tenderness over the muscles, restricted motion with spasm. Once again, a normal neurologic examination as far as motor exam, sensation, and reflexes.” Dr. Manale reviewed a lumbar x-ray taken in Texas and noted that the x-ray revealed arthritis. Dr. Manale noted that Williams had tenderness over her knee joint lines and that she did not have complete motion. However, he stated that the x-rays he reviewed showed arthritis, narrowing of the joint space, and osteo-phytes. Significantly, Dr. Manale testified that the chart indicated that no changes in symptom complaints between Williams’ last visit at his medical office on 20 June 2005 and his initial visit with her on 17 October 2007 existed. He never testified that Williams suffered a change in her condition that is causally related to the employment-related accident of 7 July 1998, and he never testified that Williams’ current multiple problems preventing her from working were related to the 7 July 1998 fall. Also, Dr. Manale testified that two current diagnoses for Williams include radiculopathy and probable diabetic poly-neuropathy. However, he failed to causally connect those conditions to her fall.

After reviewing the record in its entirety, we find Williams failed to prove a change in her condition causally related to her fall of 7 July 1998. We find the workers’ compensation judge committed no manifest error in finding that Williams failed to meet her burden of proof and granting the OPSB’s motion for involuntary dismissal.

Lastly, Williams argues she is entitled to penalties and attorneys’ fees for the OPSB’s arbitrary and capricious failure to pay benefits and in terminating her benefits. Notably, Williams’ pre-trial statement states, “[i]t is submitted that the Board has relied up [sic] reliable documentation inasmuch as they should not be | ¡found to be arbitrary and capricious in this matter. The only issue is totals and permanency of her disability.” Williams did not raise the issue of penalties and attorneys’ fees at her trial before the workers’ compensation judge. An appellate court generally may not consider any question that has not been determined by the court of original jurisdiction. Razor v. New Orleans Dept. of Police, 04-2002, p. 5 (La.App. 4 Cir. 2/15/06), 926 So.2d 1, 5. Therefore, we decline to consider Williams’ arguments concerning penalties and attorneys’ fees.

Accordingly, the judgment granting the motion for involuntary dismissal is affirmed.

AFFIRMED.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. John E. McKenzie.
    No. 09-KA-893.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Plaintiff'Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, MARC E. JOHNSON and ROBERT L. LOBRANO, Pro Tempore.
   CLARENCE E. McMANUS, Judge.

\,STATEMENT OF THE CASE

On July 17, 2007, the Jefferson Parish District Attorney filed a bill of information in district court case number 07-4269, charging defendant, John E. McKenzie, with possession of stolen property valued at over $1000.00 in violation of LSA-R.S. 14:69. Defendant pled not guilty to this charge at his arraignment on the following day.

On August 15, 2007, the Jefferson Parish District Attorney filed a bill of information in district court case number 07-4842, charging defendant with distribution of cocaine within 1000 feet of a church in violation of LSA-R.S. 40:981.3. Defendant pled not guilty to this charge at his arraignment on the following day.

On August 22, 2007, defendant withdrew his not guilty pleas and pled guilty as charged to distribution of cocaine within 1000 feet of a church and to possession of stolen property valued at over $1000.00. Defendant was sentenced to ten years | ^.imprisonment at hard labor on each count, to run concurrently. Also on this date, the State filed a multiple offender bill of information in case number 07-4269, alleging that defendant was a second felony offender. Defendant admitted the allegations in the multiple bill. His original sentence in case number 07-4269 was vacated, and defendant was sentenced as a second felony offender to ten years at hard labor, to run concurrently with the sentence he was given in case number 07-4842. On September 2, 2009, the district court granted defendant an out-of-time appeal in case number 07-4842.

On November 17, 2009, defendant filed with this Court a motion for remand for correction of a clerical error in the district court’s order, which granted defendant an out-of-time appeal. Although defendant’s Application for Post-Conviction Relief reflected both district court case numbers 07-4269 and 07-4842, the order granting the out-of-time appeal only included case number 07-4842. Therefore, this Court remanded the matter to the district court for correction of the clerical error so that the order reflected both district court case numbers 07-4269 and 07-4842, and this Court ordered that the record on appeal be supplemented to include those documents necessary to perfect the appeal in case number 07-4269. On December 15, 2009, the district court complied and amended its order, combining district court case numbers 07-4269 and 07-4842 into one appeal. Thereafter, Supplement “B”, which involves case number 07-4269, was made a part of this record. Thus, this appeal is from both district court case numbers 07-4269 and 07-4842.

DISCUSSION

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530-31 (La.App. 4 Cir.1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam), asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

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) (quotation omitted).

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

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal |sis wholly frivolous. Bradford, 95-929 at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence.

Defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. His brief reflects a review of both case numbers 07-4269 and 07-4842. He contends that defendant’s sentence, although “grave,” was “precisely in line with the plea agreement.” He further contends that defendant was approximately 25-years old at the time of the guilty plea, and the bargained-for sentence did not appear to be constitutionally excessive under the circumstances of the case. Appellate counsel notes that the bills of information appear to be in order, and that the minutes indicate defendant was present at all critical court proceedings.

Counsel also addresses potential issues argued below by defendant in a June 2008 Application for Post-Conviction Relief (APCR) and in a February 2009 pro se notice of intent to seek appeal. In the APCR, defendant argued that his habitual offender adjudication was defective because the trial court failed to adequately advise him of what the State’s burden would be should he contest the adequacy of the proof of his predicate conviction. Also, defendant alleged in the application that the trial judge failed to inform him that the State had the burden of proving that his prior felony convictions were not obtained in violation of his right to counsel. Counsel also explains that in the notice of intent to seek appeal, defendant alleged that the trial court failed to comply with the provisions of LSA-R.S. 15:529.1 and that the sentence imposed was excessive. Appellate counsel addresses these issues by noting that the waiver of rights form and the transcript regarding the multiple bill properly addressed defendant’s rights. Counsel 1 firecognizes that the form reflected that defendant waived his right to a hearing on the multiple bill and acknowledged that he was waiving his rights to require the State to prove he was the same person alleged to have a prior felony record and that if his prior conviction was by plea, he was waiving his right to require the State to prove that at the time of the plea he was advised of his right to trial by jury, his right to confront his accusers, and his right to remain silent. Nevertheless, appellate counsel concludes that defendant’s “conviction and sentence should be set aside and the case remanded for further proceedings in conformity with law.”

Appellate counsel has filed a motion to withdraw as attorney of record, which states he has sent a copy of his brief to defendant, preserving to defendant any and all rights including the 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 August 1, 2010, to file a pro se supplemental brief. Defendant did not file a brief in this matter.

The State filed a response brief in this matter, suggesting that this Court affirm defendant’s convictions and sentences. The State contends that counsel’s brief shows a complete and thorough recitation of the procedural history of the case. It further contends that counsel concedes that the multiple offender adjudication was proper, that the sentence was in line with the plea agreement, and that there were no other non-frivolous issues upon which to base an appeal.

An independent review of the record by this Court supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The bills of information in the cases properly charged defendant and present no non-frivolous issues supporting an appeal. As required, the bills of information 17plainly, concisely, and definitively state the essential facts constituting the offenses charged. See generally LSA-C.Cr.P. arts. 464-66.

As reflected by the minute entries and the commitments, defendant appeared at each stage of the proceedings against him. He attended his arraignments and was present to plead guilty and for sentencing in the matters, thus, there are no issues to discuss on appeal concerning defendant’s presence.

Further, defendant pled guilty as charged in both cases. He also admitted the allegations in the multiple bill that was filed in case number 07-4269. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes a 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. An unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing. State v. Schaefer, 97-465, p. 9 (La.App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

Defendant did not file any pre-trial motions. Therefore, there are no trial court rulings defendant could have preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La.1976).

The record, including its supplements, does not reveal any irregularities in defendant’s guilty pleas. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and | svoluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. McCoil, supra. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La.1984).

Regarding defendant’s guilty pleas, the record shows that defendant was advised of his right to a jury trial, his right of confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Defendant indicated that he understood that by pleading guilty he was giving up these rights. Further, defendant executed a waiver of rights form. The trial judge accepted the pleas, finding that defendant understood his rights and was knowingly and intelligently waiving his rights.

As to the multiple offender bill, the trial judge properly explained to defendant his multiple offender rights. Defendant was advised that he was giving up his right to have a hearing where the District Attorney would have to prove that he was the same person with the prior felony and that the time period between the completion of the sentence for the prior felony and the date of the crime for the more recent conviction was ten years or less. The court also explained what the State would have to establish regarding a prior conviction that resulted from a guilty plea. Defendant was further informed that he was relinquishing his rights to confront witnesses and to remain silent at the hearing. Defendant indicated that he understood. He also executed a waiver of rights form, which suggested he was not forced, coerced, or threatened and that he understood the consequences of his admission.

| nFurther, defendant was advised of the offenses with which he was charged and the sentencing ranges he could be exposed to for the offenses. Defendant was also informed as to what his sentences would be if he pled guilty to the offenses. The waiver of rights form regarding the multiple bill reflects that defendant was informed as to the sentencing range he faced as a multiple offender, as well as the specific sentence he would receive if he admitted the allegations of the multiple bill. After defendant pled guilty and admitted he was a second felony offender, it appears the trial judge imposed sentences in conformity with the plea agreements.

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.” See also State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. This Court has consistently recognized that this article precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Moore, 06-875, p. 15 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 46.

Further, the defendant’s sentences were within the sentencing ranges prescribed by the statutes. Defendant pled guilty to distribution of cocaine within 1000 feet of a church in violation of LSA-R.S. 40:981.3. LSA-R.S. 40:981.3(E)(1) provides that “[wjhoever violates a provision of this Section shall be punished by the imposition of the maximum fine and be imprisoned for not more than one and one-half times the longest term of imprisonment authorized by the applicable provisions of R.S. 40:966 through 970.” Subsection (2) provides that “[a] sentence imposed for a violation of the provisions of this Section shall not be subject to parole, probation, or suspension of sentence to the extent that the minimum sentence for a violation of a felony provision of R.S. 40:966 through 970 is not subject to parole, probation, or suspension of sentence.” LSA-R.S. 40:981.3(E)(2). |1nThe penalty for distribution of cocaine is “imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not more than fifty thousand dollars.” See LSA-R.S. 40:967(B)(4)(b). As such, pursuant to LSA-R.S. 40:981.3 and LSA-R.S. 40:967, the sentencing range for distribution of cocaine in a drug-free zone is between two and 45 years at hard labor with a fine of $50,000. Further, the sentence should have been imposed without benefit of parole, probation, or suspension of sentence for the first two years. See State v. McCray, 07-143, pp. 9-11 (La.App. 5 Cir. 7/30/07), 966 So.2d 616, 622, writ denied, 07-1826 (La.2/1/08), 976 So.2d 715.

Defendant also pled guilty to an offense pursuant to LSA-R.S. 14:69, which provides for a sentence of imprisonment with or without hard labor, for not more than ten years, a fine of not more than three thousand dollars, or both. See LSA-R.S. 14:69(B)(1). As a second felony offender, defendant was subject to a sentence of not less than one-half of the maximum term of sentence of the underlying offense and not more than twice the maximum term of the underlying offense. See LSA-R.S. 15:529.1. Thus, the sentencing range applicable to defendant, as a second felony offender, for possession of stolen things valued at $500.00 or more, was five to 20 years imprisonment, without benefit of probation or suspension of sentence. LSA-R.S. 14:69(B)(1); LSA-R.S. 15:529.1.

Based on the foregoing, the proceedings surrounding defendant’s pleas of guilty, his admission to being a multiple offender, and his sentences do not present any non-frivolous appealable issues. Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an | r, independent review of the record supports counsel’s assertion, we affirm defendant’s convictions and sentences and grant appellate counsel’s motion to withdraw as attorney of record.

ERROR PATENT DISCUSSION

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with 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) regardless of whether defendant makes such a request. The following errors are addressed.

First, we note that the commitment in case number 07-4269 reflects that defendant was sentenced under the multiple bill statute, but does not reflect defendant’s specific status as a multiple offender. The transcript reflects defendant admitted to being a second felony offender. This Court has recognized a similar matter to be error patent. In State v. Dufrene, 07-823, p. 5 (La.App. 5 Cir. 2/19/08), 980 So.2d 31, 34, the transcript reflected that defendant pled guilty to being a second felony offender while the commitment reflected that the defendant was “sentenced under the Multiple Bill statute.” This Court remanded the matter to the trial court for the limited purpose of correcting the commitment to state defendant was sentenced as a second felony offender. Id.

Therefore, we remand this matter for correction of the commitment, and direct the district court to make the entries in the minutes reflecting these changes and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which the defendant has been sentenced.

Next, defendant pled guilty to distribution of cocaine within 1000 feet of a church in violation of LSA-R.S. 40:981.3, and he was sentenced to ten years imprisonment at hard labor. However, this sentence is illegally lenient. LSA-R.S. 11240:981.3(E) requires that defendant be ordered to pay a mandatory fine equal to the maximum fine provides in the underlying statute. The underlying statute, LSA-R.S. 40:967(B)(4)(b), pertaining to cocaine distribution, provided a maximum fíne of $50,000. The court should have sentenced defendant to pay a $50,000 fine, but failed to do so, and therefore the sentence is illegally lenient. Neither party raises this issue.

It is undisputed that the appellate court has the authority to correct an illegally lenient sentence at any time, even if the defendant has entered into a plea bargain and is negatively affected by the correction. State v. Campbell, 08-1226, p. 8 (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, 1081, writ denied, 09-1385 (La.2/12/10), 27 So.3d 842. The Louisiana Supreme Court has held that an appellate court has the authority under LSA-C.Cr.P. art. 882 to correct an illegally lenient sentence at any time, even if the issue of an illegal sentence was not raised by the defendant or the State. Campbell, 08-1226 at 8, 15 So.3d at 1081. This Court has used that authority to notice the failure of the trial court to impose a mandatory fíne and the authority to remand the matter to the trial court for imposition of a mandatory fine. However, often in indigent defender matters, this Court has decided not to use this authority. Id.

In State v. Horton, 09-250, p. 10 (La.App. 5 Cir. 10/27/09), 28 So.3d 370, 376, this Court declined to remand the matter for imposition of the mandatory fíne due to the defendant’s indigent status. This Court noted that the defendant was represented by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases.

In this case, defendant pled guilty and is indigent, being represented by the Louisiana Appellate Project. As such, we refuse to disturb defendant’s sentence. See State v. England, 09-746, pp. 12-13 (La.App. 5 Cir. 3/9/10), 38 So.3d 383, 391.

Further, defendant’s sentence for the LSA-R.S. 40:981.3 conviction is also illegally lenient because it was imposed without restriction of benefits. LSA-R.S. 40:981.3(E)(2) provides that “[a]'sentence imposed for a violation of the provisions of this Section shall not be subject to parole, probation, or suspension of sentence to the extent that the minimum sentence for a violation of a felony provision of R.S. 40:966 through 970 is not subject to parole, probation, or suspension of sentence.” LSA-R.S. 40:967(B)(4)(b) provides that the first two years of the sentence is to be served without benefit of parole, probation, or suspension of sentence. Therefore, the first two years of defendant’s sentence should have been imposed without benefit of parole, probation, or suspension of sentence. Under LSA-R.S. 15:301.1 and State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799, a statute’s requirement that a defendant be sentenced without benefit of parole, probation or suspension of sentence is self-activating. Therefore, no corrective action is required.

In addition, defendant’s enhanced sentence was illegally lenient. Defendant was sentenced as a second felony offender in case number 07-4269 to ten years at hard labor, to run concurrently with the sentence he was given in case number 07-4842. The trial court did not order defendant’s enhanced sentence to be served without benefit of probation or suspension of sentence in accordance with LSA-R.S. 15:529.1(G). However, this error does not require corrective action because under Williams, 00-1725 at 10, 800 So.2d at 799 and LSA-R.S. 15:301.1 the “without benefits” provision is self-activating. See State v. Moore, 06-875, p. 18 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 48.

| ^Accordingly, defendant’s conviction and sentence are affirmed and appellate counsel’s motion to withdraw as attorney of record is granted. We also remand this matter with instructions for correction of the commitment pursuant to the error patent discussed above.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW AS ATTORNEY OF RECORD GRANTED; MATTER REMANDED WITH INSTRUCTIONS.

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


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Elizabeth Ann CACCIOPPO.
    No. 10-KA-385.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 15, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Julie C. Tizzard, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

| ^Defendant, Elizabeth Ann Caccioppo, appeals her conviction for driving while intoxicated, fourth offense, in violation of LSA-R.S. 14:98(E). Defendant pled guilty as charged under State v. Crosby, 338 So.2d 584 (La.1976), following the denial of her motion to suppress evidence. Defendant argues on appeal that her blood sample was inadmissible because she was not “under arrest” at the time the investigating officer and the assisting nurse made the “blood draw” on defendant. The State responds that the trial court did not err by denying the motion to suppress the evidence because defendant’s blood sample was properly obtained pursuant to LSA-R.S. 32:661(B). For the reasons that follow, we affirm defendant’s conviction and sentence.

FACTS AND PROCEDURAL BACKGROUND

At the hearing on defendant’s motion to suppress held on February 3, 2010, Officer John Cryer of the Kenner Police Department, Traffic Safety Unit, testified |3that at the time of said hearing, he had been employed by the Kenner Police Department for thirteen (13) years. He stated that he had taken several professional classes that pertained to recognizing and identifying people who are driving while intoxicated. Since 2002, he had made over 300 arrests for driving while intoxicated and drug-impaired driving. He further testified that he was nationally accredited as a field sobriety instructor, and he was a breath field supervisor.

Officer Cryer further testified that on July 20, 2008, he noticed defendant’s vehicle stopped, in the middle of the street, blocking the right lane in the 900 block of West Esplanade in Kenner, Louisiana. When Officer Cryer initially saw defendant, she was seated in the vehicle’s driver’s seat, completely unresponsive. Defendant’s vehicle was running and in drive, her foot was resting on the brake, and the driver’s door to her vehicle was slightly ajar. Officer Cryer then opened the driver’s door, put the vehicle in park, and checked defendant’s vital signs. At that point, defendant’s breathing was shallow and her pulse was slow. There was a strong odor of alcohol within defendant’s vehicle. Officer Cryer called emergency medical services (“EMS”) to the scene, who attempted to rouse defendant from her stupor by using ammonium inhalants. When that effort gained no response from defendant, she was transported by EMS to the nearest hospital.

Officer Cryer testified that the smell of alcohol in the vehicle, defendant’s unconscious condition, and his finding of a water bottle in the center console of the vehicle that smelled highly of vodka led him to believe that defendant was intoxicated. Officer Cryer went to the hospital to ensure that defendant’s condition did not deteriorate anymore. He brought along a blood alcohol kit into the hospital, and while there, he and an assisting nurse conducted a “blood draw” on defendant to determine her blood alcoholic content, or her “BAC” level, which was |4Iater determined by testing to be in excess of .50g%, considerably over the legal limit.

Defendant never regained consciousness while Officer Cryer was present with her. Officer Cryer explained that if defendant had “woken up” at that point, he would have advised her of her Miranda rights, then she would have been given a field sobriety test on the scene. Officer Cryer testified that he did not take defendant into custody because of her medical condition and because he did not believe he had “enough to arrest her at that point.” After Officer Cryer received the results of defendant’s blood alcohol test, he obtained an arrest warrant and ultimately arrested her.

The trial judge denied defendant’s motion to suppress the blood sample, finding that there was an arrest sufficient to allow introduction of the results of defendant’s blood alcohol test.

ANALYSIS

Trial courts are vested with great discretion in ruling on a motion to suppress, and, consequently, the ruling of a trial judge on a motion to suppress will not be disturbed absent an abuse of that discretion. State v. Knight, 09-359, p. 15 (La.App. 5 Cir. 2/9/10), 34 So.3d 307, 318, citing State v. Long, 03-2592 (La.9/9/04), 884 So.2d 1176, 1179, cert. denied, 544 U.S. 977, 125 S.Ct. 1860, 161 L.Ed.2d 728 (2005).

LSA-R.S. 32:661(A)(1) provides that a person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to chemical tests for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while |fithe person was driving or in actual physical control of a motor vehicle while believed to be under the influence of alcoholic beverages. (Emphasis added.) LSA-R.S. 32:661(B) provides that any person who is dead, unconscious or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn the consent provided by Subsection A of this section, and the test or tests may be administered subject to the provisions of R.S. 32:662.

In State v. Sherer, 354 So.2d 1038 (La.1978), the Louisiana Supreme Court held that the circumstances indicating the officer’s intent to effect an extended restraint on liberty of an accused, rather than the precise timing of an officer’s statement: “You are under arrest” are determinative of when an “arrest” is actually made within the meaning of R.S. 32:661. In Sherer, the state trooper arrived at the scene of the accident and found the defendant still in his truck in an unconscious state. The defendant’s breath smelled of alcohol, beer cans were found in the truck, and the truck had crossed the center line of the highway. Prior to the defendant’s removal from the scene in an ambulance, the state trooper told the ambulance driver that he was placing charges against the defendant based on the physical evidence indicating that the defendant had been driving while intoxicated. The state trooper instructed the ambulance driver to obtain a blood alcohol test on the defendant. The state trooper went to the hospital where the defendant had been taken for emergency medical care. Although the defendant was unconscious, the state trooper advised him of his rights and requested the defendant’s consent to the blood alcohol test. The state trooper received no response. Id., 354 So.2d at 1040.

On appeal, the defendant argued that the blood sample was illegally withdrawn because he was not under arrest at that time and had not consented to the test. The Supreme Court found that, under the circumstances, there was a clear intent on the part of the state trooper to effect a restraint on the defendant, to the | ^extent possible, at the scene of the accident, and, therefore, the defendant was “arrested.” The Supreme Court also noted that the defendant was unconscious and in need of medical care, and, therefore, it was not possible to physically detain the defendant without seriously jeopardizing his health. Moreover, the Supreme Court stated that there was no need to detain the defendant who was obviously incapable of escape. The Supreme Court further found that, because the defendant remained unconscious at the hospital, a condition rendering him incapable of refusal to submit to the blood alcohol test, the defendant’s implied consent was not withdrawn under LSA-R.S. 32:661(B), and the testing was permissible. State v. Sherer, 354 So.2d at 1041-42.

In United States v. Wright, 797 F.2d 245 (5th Cir.1986), cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987), the U.S. Fifth Circuit cited Sherer, finding that blood alcohol test results taken from an unconscious suspect would most likely have been admissible at his DWI trial. In Wright, defendant Armstrong, a city attorney, and defendant Wright, an attorney in private practice, were convicted under the Hobbs Act of extorting money from a law firm and its clients in exchange for not prosecuting drunken drivers in city court. The district court found that Armstrong withdrew the warrant for Wright’s client Burns’s arrest because Wright agreed to pay a fee to Armstrong. On appeal, Armstrong argued that the evidence showed that he decided not to prosecute Burns because the blood alcohol test results showing Burns’s intoxication would not have been admissible at Burns’s DWI trial, because Burns had not been arrested at the time of the test.

Citing Sherer, the U.S. Fifth Circuit found that Burns was under arrest within the meaning of LSA-R.S. 32:661 when the blood test was taken at the hospital, and that under LSA-R.S. 32:661(B), Burns’s implied consent was not withdrawn and the testing was permissible.

17The instant case is similar to Sherer. As in Sherer, defendant in the instant case was found unconscious in her vehicle. In both cases, the officer found other physical evidence that the respective defendants had been driving while intoxicated. In both cases, the officers went to the hospitals where the respective defendants had been taken for emergency care and either took blood themselves or directed that it be done. In both cases, the defendants remained unconscious at the hospital.

Furthermore, the totality of the circumstances in the present case clearly indicates the intent of Officer Cryer to effect extended restraint on the liberty of defendant. It is obvious that if defendant would have regained consciousness at any time while in Officer Cryer’s presence, she would not have been “free to go.” According to Officer Cryer’s testimony, if defendant had regained consciousness while in his presence, he would have advised her of her Miranda rights and would have given her a field sobriety test.

Looking at the totality of the circumstances involved in the instant case, viewed objectively, we find that defendant was effectively placed “under arrest” by Officer Cryer at the hospital. Officer Cryer testified that he would have advised defendant of her Miranda rights and would have given her a field sobriety test had she regained consciousness in his presence. Neither of these courses of action by Officer Cryer were possible because of defendant’s continued state of unconsciousness. Also, it is evident that Officer Cryer followed the ambulance to the hospital to assure that defendant would not be free to leave if and when she regained consciousness. This is confirmed by the fact that Officer Cryer brought a blood test kit into the hospital and assisted the nurse in the “blood draw” on defendant. In actuality, even though unconscious, defendant was effectively under Officer Cryer’s restraint at the hospital.

|RAt the same time, Officer Cryer’s statement regarding not having enough “to arrest her [defendant] at that point” cannot be completely ignored. However, this statement must be carefully considered both in the context of the entirety of Officer Cryer’s testimony, and, importantly, in his actions. This statement was made in response to a compound question: “So, when you said that she wasn’t in custody, was that because you didn’t believe that you had enough to arrest her at that point or because of her medical condition?” Officer Cryer’s response was, “Both.” Prior to this statement, Officer Cryer stated that had defendant not been unconscious, “[s]he would have been Mirandized, then she would have been given the field sobriety test on scene. Depending on her performance at that point in time, it would have been determined if she would be arrested and transferred to the Kenner City Jail.” It is not clear from Officer Cryer’s testimony as to what point in time he felt he did not have enough evidence to arrest defendant.

Looking at the totality of the facts and circumstances involved in this case, viewed objectively, we find that defendant was “under arrest” within the meaning of LSA-R.S. 32:661 when the “blood draw” was taken at the hospital. We also find, as did the courts in Sherer and Wright, that under LSA-R.S. 32:661(B), defendant’s implied consent was not withdrawn, and the testing of her blood alcohol level was permissible.

Defendant cites State v. Shirley, 08-2106 (La.5/5/09), 10 So.3d 224, and State v. Amos, 97-1283 (La.App. 3 Cir. 4/29/98), 714 So.2d 775, writ denied, 98-1451 (La.10/9/98), 726 So.2d 27, in support of her position that the blood sample was inadmissible because she was not under arrest at the time the blood test was conducted. However, those cases are distinguishable from the instant one, and, therefore, are inapplicable. In the instant case, the defendant was unconscious at the scene and at the hospital, and, therefore, she could not have been advised of her | ^rights and formally arrested, unlike the defendant in Amos who was conscious, advised of his rights at the scene, and spoke to the officer at the hospital, and unlike the defendant in Shirley, who was also conscious at the scene. Also, unlike the instant case, and unlike Sherer and Wright, Shirley and Amos did not involve the applicability of LSA-R.S. 32:661(B), which pertains to persons who are dead, unconscious, or otherwise in a condition rendering them incapable of refusal to consent to blood tests to determine blood alcohol levels.

For the above reasons, this assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

A review of the record indicates that the trial judge imposed an illegally lenient sentence on defendant when he failed to order that 60 days of the sentence be served without benefit of parole, probation, or suspension of sentence as was required under the version of LSA-R.S. 14:98(E) in effect at the time of the offense in July of 2008. The trial judge also imposed an illegally lenient sentence when he failed to impose the mandatory fine of $5,000.00 under LSA-R.S. 14:98(E). Neither the State nor defendant raised this issue in the trial court or on appeal.

Under LSA-C.Cr.P. art. 882, this Court has the authority to correct an illegal sentence despite the failure of either party to raise the issue. This authority is permissive rather than mandatory. State v. Quinones, 03-907, p. 11 (La.App. 5 Cir. 12/30/03), 864 So.2d 824, 830. However, “[a]n appellate court should refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint and which resulted in dispositions of the cases favorable to the defendant.” State v. Campbell, 01-0329 (La.11/2/01), 799 So.2d 1136, 1136. Given the particular circumstances of this case, we decline to exercise our authority in this regard.

CONCLUSION

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

AFFIRMED.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . This statute was amended by the Louisiana Legislature in 2010; however, those amendments do not change the analysis herein.
      LSA-R.S. 15:301.1 states that the failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence. Thus, no corrective action is necessary.