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    STATE of Louisiana v. Lloyd W. ADDISON.
    No. 08-KA-461.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 10, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, James Adair, Tonia Williams, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Michael H. Idoyaga, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and MADELINE JASMINE, Pro Tempore.
   WALTER J. ROTHSCHILD, Judge.

|¡>,Defendant, Lloyd W. Addison, was charged by bill of information with attempted second degree murder in violation of LSA-R.S. 14:30.1 and 14:27, was arraigned and pled not guilty. The trial court denied defendant’s motion to suppress evidence and statement. On September 11, 12, and 13, 2007, the case was tried before a 12-person jury which found defendant guilty of the responsive verdict of attempted manslaughter. On November 9, 2007, the trial court denied defendant’s motion for new trial. On that same date, defendant waived sentencing delays, and the trial court sentenced him to imprisonment at hard labor for 20 years. This timely appeal follows.

lijThe State presented the following testimony and evidence at trial:

On April 15, 2006, at approximately 8:00 p.m., Charlotte Rush and defendant, her boyfriend, checked into the Deep South Motel on Airline Highway in Metairie to spend time together away from their families and to use drugs. During the night, they sat on the bed and smoked crack cocaine, talked, and watched television. At one point, defendant jumped up and said, “You’re doing someone under the mattress.” When Rush asked defendant what he was talking about, he explained that there was a trap door under the mattress.

Rush got up and lifted the mattress, inadvertently hitting the wall, and defendant accused her of “giving him signals.” Rush told defendant he was “freaking out” and that he needed to calm down. Defendant said, “Don’t tell me to calm down ... what’s his name?” Rush could not think of a name so she made up a name, “Larry,” which was the name of her son. Defendant opened the door and stepped outside of the motel room, but Rush asked him to come back inside so they could talk about the situation. When defendant came back inside, he hit Rush in the nose with what she thought was a bat that he had put in the corner of the room.

After defendant struck Rush in the face, he grabbed her by the hair, threw her in the bathroom, and started punching her. Defendant then left and closed the bathroom door. Rush subsequently heard defendant outside the door, so she opened it and said, “Let’s talk.” At that time, she noticed that defendant had knives in his hand. Rush called defendant’s name, but he went toward the door to the hotel room. She did not want him to hurt anyone, so she told him to come back. Defendant turned around, grabbed her, and started stabbing her. He threw Rush back into the bathroom and closed the door, and Rush tried to hide underneath the sink.

UDefendant came into the bathroom and started stabbing her again and beating her. He dragged her out of the bathroom and told her to take off her shirt, saying “I know you’re wired.” She took her shirt off and told him again he was “freaking out.” Defendant stabbed Rush in the head, neck, chest, hands, and leg. He put a knife to her throat and said, “Tell him the gig’s up, come in, come in.” Rush was scared, so she played along and said what defendant told her to say. She then felt faint and fell to the ground.

Defendant started kicking Rush and said, “Get up b.tch, you’re a dead b.tch ... I told you I’d kill you, you b.tch.” After-wards, she looked around and did not see him, but saw that the door was open. Rush ran out the door toward the motel office for help, but the office personnel told her to go away because they did not want any trouble. Rush thought she heard defendant hollering for her, so she hid underneath a truck next to the office. When she realized the “coast was clear,” she ran to a house near the motel to see if she could find someone to help her.

Rush banged on the door, but the lady inside told her to go away because she did not want any trouble. Rush asked her to call the police. She then ran down the block and eventually knocked on the door of a house at 220 Carnation Street. Matthew Grass, the owner of the house, came outside, and she told him that her boyfriend was trying to kill her and that she needed help. Grass told her to calm down. He took out his gun and said that no one was going to come on his porch and hurt her.

At approximately 3:10 a.m., the police received two 911 calls advising them that a topless, bloody white female was running around the area of Finch and Carnation Streets banging on doors. Deputy Ruth Eddy of the Jefferson Parish Sheriffs Office (JPSO) arrived at 220 Carnation Street and observed Rush on the ground completely covered in blood with obvious stab wounds and screaming | ¡¡hysterically. Rush was very afraid because she thought defendant was chasing her. Rush told the officer that defendant was responsible for her injuries and that he could be located at the Deep South Motel, Room 12. Deputy Eddy told other officers to go to that location to find the suspect.

Officers Michael Nicolini and John James and Sergeant James Wine went to the motel. The doorway to Room 12 had blood on the outside of it, and the door was slightly ajar. Deputy Eddy, Officer Nicol-ini, and Sergeant Wine saw a male subject, later identified as defendant, lying face down on the bed inside the room. The officers pushed the door open, went inside with their guns drawn, and told defendant to lie on the floor. Defendant initially hesitated, but then complied with the officers’ command.

The officers observed a large amount of blood all over the walls and could tell that a struggle had taken place. The mattresses were flipped over, and there was clothing and belongings all over the place. Defendant was sweating and had blood all over his clothing. The officers searched the room and found a knife in the bathroom on the sink behind the faucet. They arrested defendant and advised him of his rights, and defendant waived them and gave a statement.

In his statement, defendant said that he and Rush had started drinking and smoking crack cocaine a few days before, and that they went to the motel to spend the night. He stated that a “black dude” showed up and that they smoked “dope” with him. Afterwards, the “black dude” left, and he and Rush lay in the bed. Defendant heard someone knocking on the wall, and he jumped up. Rush then pounded on the wall and told “them” to leave. She told defendant not to worry about it, and then she hit him, and they started fighting. Defendant claimed Rush had a knife in her hand and tried to cut him with it, and they fought over the knife. He explained that they were throwing each other all over the room, and that she | (;may have been cut with the knife during the fight. Defendant said that Rush fell and dropped the knife and that he picked it up and threw it, and Rush ran out the door.

While the officers investigated the incident, Rush was taken to the emergency room at East Jefferson General Hospital where she was treated for her injuries. When Rush arrived, she was brought to the most critical resuscitation room where people are either in the process of dying or at risk of dying based on their injuries or illnesses. Rush had a wound a few inches long to the top of her head, a two inch wound to the left side of her neck, a three inch wound to her left chest, a two inch wound to the right chest, a deep wound to her left hand between the thumb and index finger, three more wounds on that hand, a large wound to the lateral part of her right leg, bruising to the armpit area and chest, a broken nose, and a bruised and swollen nose and lips. Most of her wounds were penetrating wounds caused by a knife or sharp instrument. Rush had to have a blood transfusion during her hospital stay, which lasted a week and a half.

The morning after the incident, Rush’s children went back to Room 12 at the motel and found another knife in a drawer. Approximately seven months later, Rush turned that knife over to Sergeant Al West along with a handwritten letter from defendant to Rush dated November 3, 2006. Rush maintained that the knife her children found was not the knife defendant used to stab her.

Also after the incident, Rush received several handwritten letters from defendant dated May of 2006. In those letters, defendant apologized and expressed remorse for what happened on the night of the incident. He indicated that the incident was a “drug event” that would never be repeated, and he admitted that she almost died because of his actions “on that drug.” He asked her to get him out of |7jail, and he talked about the money she had received in a settlement. He noted that she would not have to testify against him if she married him.

Robert Foley, an expert forensic document examiner, compared the letters Rush received from defendant to defendant’s handwriting sample and concluded that defendant wrote the letters to Rush.

Christine Kogos, an employee of the JPSO crime lab, conducted a preliminary test on the two knives found at the crime scene and the shorts and t-shirt defendant was wearing at the time of the incident. The preliminary test on the shorts and t-shirt and on the knife found by the officers at the crime scene (not the one found by Rush’s children) was positive for blood.

Bonnie Dubourg, an expert forensic DNA analyst, conducted DNA tests on swabbings from the two knives found at the crime scene, the wall of Room 12, and defendant’s shorts and t-shirt. The test results for the swabbings from the knife found by the officers at the crime scene, the wall of Room 12, and defendant’s shorts and t-shirt were consistent with the reference buccal swab from Rush.

After the State rested its case, defendant presented the jury with a different version of the incident. He contended that at 11:00 p.m. on the night in question, he left the motel room and went to St. John Parish to buy drugs. When he returned at 1:00 a.m., he saw two black males in their late teens or early twenties exiting Room 12 and getting into their vehicle. Defendant exited his vehicle and walked to the doorway of the room. As he did so, he noticed that Rush was crying and bleeding from the nose. He physically moved her into the room so they would not draw any attention to themselves, since he had illegal narcotics in his possession.

According to defendant, Rush was hysterical and angry, and she had a knife in her right hand. She screamed at defendant to “go get those guys.” Defendant took the knife from her and, when he did so, he saw that her hands were injured. | sOnce he got the knife from her, Rush tried to get it back. When she did so, she ran her hand onto the blade. He threw the knife under the dresser so she could not get to it. During the struggle, Rush was violently flailing herself around and against the wall. They rolled onto the bed and off the bed onto the floor.

The struggle continued into the bathroom where Rush badly injured her head on the exposed fittings under the sink. Defendant claimed that Rush was determined to get out the door to find the two men who left. He did not know their identities or why she was after them. At approximately 1:30 a.m., Rush left the room fully clothed, and he sat down on the bed thinking she would return shortly. He then washed off the knife and after-wards, fell asleep. The police officers later woke him up and questioned him about the incident. Defendant gave a statement to the officers; however, he claimed at trial that the first part of the statement regarding smoking “dope” with a black man and hearing knocking on the wall was not his statement, and that only the bottom seven lines regarding the fight with the victim was his statement.

Defendant testified at trial that he did not stab Rush or break her nose or beat her. He stated that he did not intend to harm her, and he did not tell the police or Rush (in the letters) that he had harmed her. He testified that he did not cause her injuries. When he looked at the photographs of Rush in the hospital, he claimed that she was not in that condition when she left the motel. He said that, when Rush left the room, she had a serious cut on her head and several wounds to her hand. He explained that, in his letters, he was only apologizing for having left her alone in the motel while he went to buy drugs and for accusing her of cheating on him.

1 r,By his first assignment of error, defendant argues that the trial court erred by not suppressing his statement. He contends that he was incapable of understanding and signing a “Miranda warning” because he was under the influence of drugs and alcohol. He notes that he had been awake for several days, had been taking drugs, and was delusional. He further notes that the officers described him, in part, as a “doped-up, sleep-deprived, blood-splattered fiend.”

The State responds that defendant was not under the influence of drugs or alcohol at the time of his waiver. Alternatively, the State argues that, if this Court finds that defendant was under the influence of drugs or alcohol, his drug-induced or intoxicated state was insufficient to vitiate the voluntariness of his statement.

At the suppression hearing, Sergeant James Wine and Deputy Michael Nieolini testified that they approached Room 12 and saw that the door was ajar. When they looked inside they saw defendant lying on the bed, sweating profusely and panting and looking nervous and confused. Defendant was conscious and breathing and did not appear to be sleeping. He appeared to be “somewhat out of it,” but not to the degree of semi-consciousness.

The officers entered the room and verbally advised defendant of his rights. They also advised him of his rights using a standardized rights of arrestee form. Defendant read that form and signed it on the line below the sentence, “This statement of my rights has been read to me by the undersigned Officer.” However, defendant did not sign the form under the section stating that he was waiving his rights and agreeing to give a statement.

At the hearing, the officers explained that, although they neglected to have defendant sign under the “waiver of rights” section, it was a clerical error, and that defendant indicated to them verbally that he waived his rights and wanted to give a statement. The officers asserted that they did not threaten or coerce defendant into Imgiving a statement, nor did they promise him anything in return for one. Sergeant Wine testified that the statement was taken in the parking lot of the hotel and that it was freely and voluntarily given.

Sergeant Wine and Deputy Nieolini testified that defendant admitted to them that he was under the influence of drugs or alcohol when he gave his statement. Defendant admitted to Sergeant Wine that he was smoking crack cocaine on the morning of the incident. Sergeant Wine testified that defendant appeared to be under the influence of drugs or alcohol, and Deputy Nieolini testified that defendant “possibly” appeared to be under the influence of narcotics. In his statement, defendant said that he and his girlfriend had started drinking and smoking crack “a few days ago,” and that they had smoked crack with a black male before the incident.

Sergeant Wine and Deputy Nieolini testified that defendant was able to express clearly what happened that night and to adequately respond to their questioning, even though he may have been under the influence of drugs or alcohol at the time. They stated that defendant was able to provide personal information about himself such as his name, address, and education level, and the name of the victim. Sergeant Wine added that defendant was cognizant enough to give a statement that contradicted the victim’s version of events. (R., p. 116). Sergeant Wine also added that defendant did not pass out, request medical attention, nor require medical attention at the time.

Defendant did not call any witnesses at the hearing.

Following the testimony, defense counsel argued that the statement should be suppressed because defendant was clearly under the influence of some type of narcotic as evidenced by his incoherent signature on the rights of arrestee form. The prosecutor responded that, even though defendant may have been under the | n influence of a narcotic, he was still able to clearly give his version of the event and his personal information. He further responded that defendant did not ask for nor require medical attention. The prosecutor contended that defendant was lucid enough to understand and intelligently and knowingly waive his rights and give a statement of his version of the incident.

After hearing arguments of counsel, the trial judge denied the motion to suppress, stating:

Once they went in he was sweating. He was probably under the influence but according to both police officers, he was able to understand his rights. He was able to give them coherent answers to the questions that they had. He gave them the address where he lived, his education level, all of those kinds of things. They said they did the statement outside in the parking lot. You know, they might not have had a place to sign it. I don’t know. I can’t explain the signature. I don’t know what his real signature looks like, whether it’s close to that or not. But, I mean, there is nothing really to indicate to me that he was too far gone to understand his rights, and for that reason I am going to deny the motion to suppress the statement ...

The State has the burden of affirmatively showing that a confession was made freely and voluntarily and not under the influence of fear, duress, intimidation, menace, threats, inducements, or promises before it may be admitted into evidence. State v. Dewey, 408 So.2d 1255, 1258 (La. 1982); State v. Batiste, 06-824, p. 9 (La. App. 5 Cir. 3/13/07), 956 So.2d 626, 633, writ denied, 07-0892 (La.1/25/08), 973 So.2d 751. If the statement was made during custodial interrogation, the State must also show that the defendant was advised of his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Brown, 03-897, pp. 15-16 (La.4/12/05), 907 So.2d 1, 15. Whether a defendant’s purported waiver of Miranda rights was voluntary is determined by the totality of the circumstances. State v. Pugh, 02-171, p. 11 (La.App. 5 Cir. 10/16/02), 831 So.2d 341, 352. The lack of a signed waiver of rights form does not, alone, require the suppression of a defendant’s confession. State v. Jenkins, 02-161, p. 6 (La.App. 5 Cir. 9/30/03), 857 So.2d 1185, 1188, writ denied, 04-2533 (La.11/28/05), 916 So.2d 130.

Intoxication only renders a statement involuntary when the intoxication is of such a degree that it negates the defendant’s comprehension and renders him unconscious of the consequences of what he or she is saying. State v. Quest, 00-205, p. 6 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 780, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866. A determination of whether the intoxication existed and was of a degree sufficient to vitiate the voluntariness of the defendant’s confession are questions of fact to be determined by the trial court. Id. The critical factor in a knowing and intelligent waiver is whether the defendant was able to understand the rights explained to him and voluntarily gave the statement. State v. Pugh, 02-171 at 19, 831 So.2d at 353.

A trial court’s determination on the admissibility and its conclusions on the credibility and weight of the testimony relating to the voluntariness of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. State v. Batiste, 06-824 at 10, 956 So.2d at 634. A trial court’s determination on the motion to suppress should not be disturbed on appeal, unless it is clearly wrong. State v. Massey, 02-872, p. 3 (La.App. 5 Cir. 2/11/03), 841 So.2d 862, 864, writ denied, 03-805 (La.10/17/03), 855 So.2d 758.

In State v. Scott, 06-134 (La.App. 5 Cir. 7/25/06), 939 So.2d 462, writ denied, 06-2133 (La.3/30/07), 953 So.2d 61, defendant argued that his statement was involuntary because he was taking pain medication. This Court noted that defendant never claimed his medication impaired his ability to understand his rights, and at no time did defendant claim he did not understand his rights. This Court found that defendant’s statement showed he was coherent and appropriately | ^answered the questions asked and that nothing in the record suggested defendant’s medication resulted in incapacitating intoxication that would vitiate the voluntariness of his confession. As such, this Court found that defendant’s statement was freely and voluntarily given and, therefore, the trial court did not abuse its discretion by denying his motion to suppress statement. Id., 06-134 at 11-12, 939 So.2d at 469-70.

In the instant case, the testimony of the officers at the suppression hearing reflects that defendant was advised of his Miranda rights and then waived them. The testimony also indicates that defendant’s statements were made freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. Although it appears that defendant was under the influence of crack cocaine when he waived his rights and gave a statement, as in Scott, he never claimed that the drug impaired his ability to understand his rights, and he never claimed he did not understand his rights. Also as in Scott, defendant’s statement shows that he was coherent and appropriately answered the questions asked, even providing an exculpatory version of the incident. As such, the record fails to show that the influence of the drug was of such a degree that it negated defendant’s comprehension and rendered him unconscious of the consequences of what he was saying. Quest, supra.

In light of the foregoing, we find that the trial court did not abuse its discretion by denying defendant’s motion to suppress the statement.

By his next assignment, defendant contends the trial court abused its discretion in allowing the State to introduce cumulative and gruesome photographs of the victim and the scene. He argues that the prejudicial effect of the photographs outweighed their probative value.

|uThe State responds that defendant did not object to photographs of the motel room scene and, therefore, he has waived this claim; however, the State notes that defendant objected to photographs of the victim in the hospital.

At trial, Deputy Ruth Eddy testified that she arranged for a crime scene technician to photograph the fronts of the houses where the victim went for help and to photograph the motel room where the incident occurred. She testified that those photographs accurately depicted the appearance of those houses and the motel room on April 16th. Sergeant James Wine also testified that the State’s exhibits accurately depicted the condition of the motel room on April 16th.

Charlotte Rush, the victim, testified that she recognized what was being depicted in the photographs submitted by the State. The prosecutor offered them into evidence and asked that they be published to the jury. Defense counsel objected to the victim being able to describe them. He argued that, “They’re pictures. They stand for themselves.” The prosecutor said that she wanted the victim to explain where in the room the attack occurred. The trial judge ruled that she was going to allow it, and she admitted State’s exhibits into evidence. The victim proceeded to describe the attack with use of the photographs. She later identified photographs of the first and second house she went to for help.

The victim also identified photographs of her injuries taken in the hospital after the attack. The prosecutor offered them into evidence and asked that they be published to the jury. Defense counsel objected, arguing that they were unduly prejudicial. The prosecutor responded that this was an attempted murder charge, and she had to prove that defendant tried to kill the victim. She also responded that it was crucial to her case that the jury be allowed to see the areas of the victim’s body that were injured.

1 ^Defense counsel noted that the prosecutor was going to call the doctor to testify the next day, but the prosecutor said that the best evidence was “what they can see.” The trial judge admitted the photographs into evidence, stating, “They depict what they are supposed to depict. I think it’s important for them to see.” Defense counsel noted his objection. Afterwards, the trial judge asked the prosecutor if she wanted to also admit the photographs of the first house the victim went to for help. When the prosecutor answered affirmatively, the trial judge asked defense counsel if he had any objections, and he said, “no.” Matthew Grass testified that the photographs submitted by the State accurately reflected the condition of his front porch before he cleaned it on April 16th. During Grass’ testimony, these photographs were admitted into evidence without objection by defense counsel, and they were published to the jury.

The record indicates that defendant failed to object to the introduction of the photographs of the houses where the victim went for help and the motel room where the incident occurred. With respect to photographs of the motel room, he only objected to the victim being able to describe what was in them. In order to preserve the right to seek appellate review of an alleged trial court error, the party alleging the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. LSA-C.Cr.P. art. 841; State v. Gaal, 01-376, p. 17 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 949, writ denied, 02-2335 (La.10/3/03), 855 So.2d 294. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity, allowing him the opportunity to make the proper ruling and correct any claimed prejudice to the defendant. Id. A defendant is limited to the grounds for objection that he articulated in the trial court, and a new basis for the objection 11f,may not be raised for the first time on appeal. State v. Taylor, 04-346, p. 9 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 594.

Since defendant did not object to the photographs of the houses where the victim went to get help or of the motel room where the incident occurred, the argument pertaining to those photographs is not properly before this Court for review. However, defendant did object to the photographs of the victim taken in the hospital after the attack as being unduly prejudicial. Therefore, we will address the issue regarding whether the trial court erred by admitting those photographs.

Under LSA-C.E. art. 408, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...” The cumulative nature of photographic evidence does not render it inadmissible if it corroborates the testimony of witnesses on essential matters. State v. Lane, 414 So.2d 1223, 1227 (La.1982); State v. Battaglia, 03-692, p. 10 (La.App. 5 Cir. 11/25/03), 861 So.2d 704, 711, writ denied, 04-1701 (La.4/29/05), 901 So.2d 1058. “The trial court has considerable discretion in the admission of photographs [and] its ruling will not be disturbed in the absence of an abuse of that discretion.” State v. Gallow, 338 So.2d 920, 923 (La.1976).

Generally, photographs are admissible if they illustrate any fact, shed light upon any fact or issue in the case, or are relevant to describe the person, place, or thing depicted, subject to the test that their probative value outweighs any prejudicial effect. State v. Battaglia, 03-692 at 10, 861 So.2d at 719. It is well-settled that a trial court’s ruling with respect to the admissibility of allegedly gruesome photographs will not be overturned unless it is clear that the prejudicial effect of the evidence outweighs its probative value. State v. Maxie, 93-2158, p. 11 (La.4/10/95), 653 So.2d 526, 532 n. 8.

117Photographic evidence will be admitted unless it is so gruesome as to overwhelm the jurors’ reason and lead them to convict the defendant without sufficient evidence. State v. Broaden, 99-2124, p. 23 (La.2/21/01), 780 So.2d 349, 364, cert. denied, 534 U.S. 884, 122 S.Ct. 192, 151 L.Ed.2d 135 (2001); State v. Jones, 99-798, p. 7 (La.App. 5 Cir. 11/10/99), 748 So.2d 1176, 1179, writ denied, 00-0306 (La.12/8/00), 775 So.2d 1076.

In the instant case, although the photographs of the victim’s injuries taken at the hospital are disturbing, they depict the injuries sustained by the victim and do not appear to be so gruesome that they would have overwhelmed the jurors’ reason and led them to convict defendant based upon the photographs alone. As was noted by the prosecutor at trial, defendant was charged with attempted second degree murder. Therefore, the State had the burden of proving that defendant had the specific intent to kill or to inflict great bodily harm. Further, the photographs corroborate the testimony of the victim, the officers, and the doctor regarding the victim’s injuries.

Additionally, although some of the photographs depict the same injury, they do not appear to be cumulative. Some of the photographs show close-up and faraway views of the same injuries, and others show the injuries from different angles with rulers next to them indicating their size. Accordingly, defendant has failed to show that the photographs were more prejudicial than probative and that this Court should interfere in the trial court’s discretion to admit the evidence.

In light of the foregoing, we fail to find that the trial court abused its discretion by admitting into evidence the photographs of the victim’s injuries taken at the hospital and publishing them to the jury.

[ jgDefendant next argues that his trial counsel was ineffective for failing to present a handwriting expert to corroborate his assertion that he had not signed the Miranda waiver. He also argues that his trial counsel was ineffective for failing to object to the introduction of photographs of the motel room splattered in blood. He contends that it is reasonably probable that the jury may have reacted differently if the photographs of the motel room had been excluded, and if a handwriting expert had cast doubt on the authenticity of the signature on the waiver form.

The State responds that the issues should be addressed in the district court because the record is not sufficient to decide them. Alternatively, the State argues that defendant did not need to present a handwriting expert, since he only signed the rights of arrestee or suspect form and not the Miranda waiver. The State also argues that there was no legal basis for objecting to the photographs of the motel room, as they were necessary to show defendant’s intent to kill the victim or to inflict great bodily harm upon her, and to impeach defendant’s statement to the police that the victim was wielding the knife, and not him. Finally, the State asserts that defendant has not shown a reasonable probability that the results of the trial would have been different, but for counsel’s alleged unprofessional conduct.

A 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. Courts apply a two-pronged test in assessing a claim of ineffective counsel. A defendant must show his attorney’s performance was deficient and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042, p. 9 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writs denied, 94-0475 (La.4/4/94), 637 So.2d 450 and 94-1361 (La.11/4/94), 644 So.2d 1055. An error is prejudicial if it was so serious that it deprived the defendant of a fair trial, or “a trial whose result is reliable.” Strickland, supra; State v. Serio, 94-131, p. 4 (La.App. 5 Cir. 7/1/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388. In order to show prejudice, a defendant must demonstrate that but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Soler, supra.

The Sixth Amendment does not guarantee a defendant errorless counsel or counsel judged ineffective by hindsight. State v. LaCaze, 99-0584, p. 20 (La.1/25/02), 824 So.2d 1063, 1078, cert. denied, 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002)). Ineffective assistance claims are assessed on the facts of the particular case as seen from the counsel’s perspective at the time. Id., 99-0584 at 20, 824 So.2d at 1078-79. As such, there is a strong presumption that counsel’s conduct will fall within the wide range of reasonable professional assistance. Id., 99-0584 at 20, 824 So.2d at 1079.

Claims for ineffective assistance of counsel are most appropriately addressed through application for post-conviction relief in order to afford the parties an adequate record for review. State v. Williams, 00-1850, p. 8 (La.App. 5 Cir. 4/11/01), 786 So.2d 785, 793, writ denied, 01-1432 (La.4/12/02), 812 So.2d 666. But an appellate court can address the issues if the record contains sufficient evidence to decide the issue, and the issue is properly raised by assignment of error on appeal. State v. Pendelton, 00-1211, p. 10 (La.App. 5 Cir. 3/14/01), 783 So.2d 459, 465-66, writ denied, 01-1242 (La.1/25/02), 807 So.2d 243. In this case, we find that the record contains sufficient evidence to decide whether trial counsel was |2nineffective for failing to call a handwriting expert and for failing to object to certain photographs.

Handwriting expert

Defendant argues that his trial counsel was ineffective for failing to present a handwriting expert to corroborate his assertion that he had not signed the Miranda waiver. He contends that it is reasonably probable that the jury may have reacted differently if a handwriting expert had cast doubt on the authenticity of the signature on the waiver form.

At trial, Deputy Nicolini testified that he witnessed defendant sign the rights of ar-restee form indicating that he had read his rights and that his rights had been read to him by the officer. Deputy Nicolini further testified that defendant did not sign the section of the form regarding the waiver of rights. He explained that it was a clerical error and that defendant verbally indicated to them that he wanted to waive his rights and give a statement. Defendant, on the other hand, testified at trial that he did not sign the rights of arrestee form and that the signature on that document was not his.

In State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, defendant contended his counsel was deficient, in part, for failing to object to photographs and failing to present DNA evidence. The supreme court stated that, given that the arguments underlying the ineffective assistance claims had no merit, counsel committed no error in not proceeding differently. The supreme court noted that defendant had not overcome the strong presumption that counsel’s actions might be considered sound trial strategy, and it indicated that it would not second-guess strategic and tactical choices made by trial counsel. The supreme court found that defendant had not demonstrated that counsel’s performance rendered his trial I?, unfair or that the result was unreliable and, therefore, the assignment had no merit. Id., 98-3118 at 40, 768 So.2d at 579.

In the instant case, we find that defendant did not need an expert to say that he did not sign the waiver of rights form, because he, in fact, did not sign it. He only signed the section that stated he had read the statement of his rights. Given that the argument underlying this ineffectiveness claim has no merit, we find that counsel committed no error in not proceeding differently. Hoffman, supra. In light of this situation, we will not second-guess the strategic and tactical choices made by trial counsel. Id. We further find that defendant has not demonstrated that counsel’s performance rendered his trial unfair or that the result was unreliable.

Photographs

Defendant argues that his trial counsel was ineffective for failing to object to the introduction of photographs of the motel room splattered in blood. He contends that it is reasonably probable that the jury may have reacted differently if the photographs of the motel room had been excluded.

After review of the record, we find that defendant’s trial counsel was not ineffective for failing to object to photographs of the motel room because there was no legal basis for an objection. The photographs of the motel room were relevant to prove that defendant had the specific intent to kill the victim or to inflict great bodily harm upon her, since he was charged with attempted second degree murder. They were also relevant to impeach defendant’s statement to the police, wherein he claimed that the victim had the knife in her hand, and not him, and that the victim did not sustain most of her injuries in the motel room.

Additionally, during cross-examination of the victim, defense counsel showed the victim photographs of the motel room and the houses where she wentj^for help and, in fact, marked many of them as his exhibits. He used the photographs of the poor condition of the motel room to suggest that she was addicted to crack cocaine. He also used a photograph of defendant standing in front of the motel room that showed no blood on the ground to imply that she was not severely injured when she left that room. Defense counsel clearly used the photographs of the motel room in order to defend his client. As such, we find that defendant’s trial counsel was not ineffective for failing to object to them, as they were part of his trial strategy.

Based on the allegations made on appeal and a review of the entire record, we find that defendant has not shown that his attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms or that counsel’s errors or omissions resulted in prejudice so great as to undermine confidence in the outcome of the trial. On the contrary, defendant’s trial counsel was able to win a lesser verdict on the attempted second degree murder charge, despite the fact that the State produced considerable evidence against defendant.

In a supplemental assignment, defendant argues that the trial court erred by denying him the opportunity to question a juror who may have seen him in handcuffs and by adding comments, which amounted to her own testimony. He requests a remand for a hearing so he can question the juror and the judge regarding this issue. The State responds that defendant has not shown any prejudice nor given any evidence that the juror did in fact see defendant allegedly handcuffed.

On the first day of trial, before any witnesses were called, the following bench conference was held:

|23MR. WILLIAMS (Defense counsel):
Your Honor, I spoke to my client. He says that the first person in probably saw him with handcuffs on, because he came in and he saw him being uncuffed by the deputy.
THE COURT:
I was watching and I could see and they weren’t looking in that direction. MR. WILLIAMS:
All right. I just wanted to state it, Your Honor.
THE COURT:
I was looking. They weren’t. Okay.

Defendant subsequently filed a motion for a new trial stating that during the course of the trial, during a lunch break, juror Margaret LeBlanc saw defendant handcuffed while being escorted from the courtroom by deputies from the Jefferson Parish Sheriffs Office. He argued that he was prejudiced as a result. At the hearing on the motion, the trial judge said that she had already addressed that issue during the trial, so she was going to deny the motion. Defense counsel noted his objection.

Ordinarily, a defendant should not be shackled, handcuffed or garbed in any manner destructive of the presumption of his innocence and of the dignity and impartiality of judicial proceedings. State v. Wilkerson, 403 So.2d 652, 659 (La.1981). However, exceptional circumstances may require, within the discretion of the trial court, the restraint of the prisoner for reasons of courtroom security or order or where the prisoner’s past conduct reasonably justifies apprehension that he may attempt to escape. Id. If the handcuffing is objected to at the time of trial, for a finding of reversible error, the record must show an abuse of the trial court’s reasonable discretion resulting in clear prejudice to the accused. Id.

In State v. Logan, 07-739, p. 22 (La. App. 5 Cir. 5/27/08), 986 So.2d 772, 786, the defendant filed a motion for new trial arguing that his right to due process was violated when a juror viewed him wearing shackles during trial. A deputy testified at the hearing that a juror may have seen the defendant in shackles while he was being transported from the courtroom to the jail. Id. The juror did not testify at the hearing. Id., 07-739 at 24, 986 So.2d at 787. This Court stated that it failed to find that the trial court abused its discretion by denying the motion for new trial on the basis of one juror inadvertently observing the defendant in shackles and handcuffs. Id., 07-739 at 27, 986 So.2d at 788-89. This Court noted that the defendant was only shackled and handcuffed for purposes of transport to and from the courtroom, and not during the trial, and that the juror may not have seen the defendant in restraints. Id., 07-739 at 27, 986 So.2d at 789. This Court found that, even assuming the juror did see the defendant in restraints, the brief incident did not appear to have so prejudiced the defendant as to warrant relief on appeal. Id. See also, State v. Wilkerson, 403 So.2d 652 (La.1981); State v. Johnson, 94-1172 (La. App. 4 Cir. 12/15/94), 648 So.2d 43.

In the instant case, defense counsel did not move for a mistrial when he first learned that a juror may have momentarily seen defendant in handcuffs. Additionally, defense counsel did not ask the trial judge for an opportunity to question the juror or other witnesses either at the time he first brought the matter to the court’s attention or at the hearing on the motion for new trial. Nevertheless, the jurisprudence suggests that the issue can be decided even without an evidentiary hearing. See Wilkerson, supra. As in Logan and Wilkerson, we find that defendant in the instant case was not handcuffed during the trial, but only for purposes of transport to and from the courtroom. Also as in Logan and Wilkerson, the juror in the instant case may not have seen defendant in handcuffs. Even 12sassuming that she did, that brief incident did not prejudice defendant so as to warrant relief on appeal. Logan, supra; Wilkerson, supra. This assignment of error has no merit.

Finally, the record in this case 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). The review reveals no errors patent that require corrective action. Accordingly, for the reasons assigned herein, the conviction of defendant, Lloyd Addison, is hereby affirmed.

AFFIRMED.

      . It is noted that, on November 9, 2007, the State filed a multiple bill alleging defendant to be a second felony offender, and defendant denied those allegations. On June 27, 2008, a multiple bill hearing was held after which the trial judge found defendant to be a second felony offender. The trial court vacated the original sentence and resentenced defendant to imprisonment at hard labor for 40 years without benefit of probation or suspension of sentence. Defendant filed a separate appeal regarding the multiple bill proceedings in case number 08-KA-680, which is a companion case on this Court’s docket.

      . See State v. Broyard, 00-2290, p. 14 (La.App. 4 Cir. 11/14/01), 802 So.2d 845, 855, writ denied, 02-0178 (La. 11/27/02), 831 So.2d 275, where the Fourth Circuit found that defense counsel was not ineffective for failing to object to photographs, in part, because he later introduced the photographs himself in order to defend his client.

      . See also State v. Jones, 31,613, p. 23 (La. App. 2 Cir. 4/01/99), 733 So.2d 127, 143, writ denied, 99-1185 (La. 10/01/99), 748 So.2d 434, where the court found that the momentary use of restraints for the limited purpose of transporting the accused did not mandate a mistrial even if the juror saw the defendant being transported on two occasions. In that case, although evidentiary hearings were held to determine what the jurors may have seen, the trial judge did not allow the questioning of the jurors at either hearing. Id., 31,613 at 20, 733 So.2d at 142.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    Julius B. SELLERS, Jr., Individually, and on Behalf of a Class of Persons with Common Claims v. EL PASO INDUSTRIAL ENERGY, L.P., Shell Chemical, LP, Motiva Enterprises, LLC, Motiva Company, BP Amoco Chemical Company, State of Louisiana, Pontchartrain Levee Board.
    No. 08-CA-403.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 10, 2009.

      Lawrence D. Wiedemann, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Charles M. Raymond, David S. Moyer, Cory S. Morton, Chad J. Moliere, Roy J. Rodney, Jr., John K. Etter, Laura Davenport, Attorneys at Law, New Orleans, LA, Mary S. Johnson, Jill T. Losch, Attorney at Law, Mandeville, LA, Thomas M. McNamara, Patrick W. Gray, Attorneys at Law, Lafayette, LA, Mark Marino, Attorney at Law, Destrehan, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| .qPlaintiff/Appellant Julius B. Sellers, Jr., representing that he is proceeding in his personal and representative capacity, has taken a devolutive appeal from the judgment of October 10, 2007 that granted the defendants’ motions to strike his demand for class action status and to dismiss all class action claims. The judgment also denied Mr. Sellers’s motion to certify the class as moot. Defendant/Appellee the Pontchartrain Levee Board (the Board) has filed an answer to the appeal. The Board challenges the trial judge’s denial of its exceptions of prescription and no |4cause of action. The Board has also filed exceptions of prescription and no cause of action in this court. For the reasons that follow, we affirm the judgment denying class action status. We dismiss the Board’s answer and exceptions.

Procedural History

On November 22, 2005, Mr. Sellers fax filed a petition for damages in which he alleged the petition was filed on behalf of a class of persons with common claims, against several defendants, including Shell Chemical, L.P., formerly Shell Chemical Company; Motiva Enterprises, LLC; Mo-tiva Company; and, “State of Louisiana, Pontchartrain Levee Board.” Thereafter, the Clerk of Court date stamped the petition on November 28, 2005. The Moti-va and Shell defendants are hereinafter referred to collectively as “Shell”.

Mr. Sellers alleged that the defendants were liable in solido for the “taking” of the putative class members’ land, including cost of cleanup and restoration, and punitive damages.

In particular, he claimed that the land in question had been contaminated and polluted by the corporate defendants. He alleged that in 1971, the Board acquired property from Mr. Sellers and members of the class. He further alleged that the acquisition was for the purpose of building a levee along Lake Pontchartrain compatible with the levee in Jefferson Parish. The construction would have insulated the tract from erosion and fostered a residential and commercial development in St. Charles Parish as in Jefferson Parish. But, the levee was never built on the acquired land and the land has never been returned to the plaintiff and the class vendors.

| r,In addition, Mr. Sellers alleged that the defendants conspired to prevent levee construction on the acquired land in order to insulate the chemical industry from development around their plants. The defendants so conspired because they knew development around the plants would result in potential liability because of the chemical companies’ unrestrained dumping of hazardous chemicals into the tract. The corporate defendants’ knowing pollution as well as the corporate defendants and board’s inverse condemnation of the class’s property by failing to construct a levee along Lake Pontchartrain north of the class’s property rendered the class’s property worthless.

Mr. Sellers alleged that he and the class did not discover and could not have discovered the effect of the defendants’ actions on the tract until less than a year before the filing of the suit.

In January and February 2006, the case was removed and then remanded to state court. Later that year, the trial judge granted exceptions of vagueness and ambiguity filed by the Board and Shell. He granted the plaintiff leave to amend the petition. In February 2007, Mr. Sellers responded to the judgment by filing his first supplemental and amending petition.

Approximately three weeks later, Shell filed a motion to strike the demand for class relief and dismiss all class action claims under La.C.C.P. art. 592(A)(1) as untimely. Shell also filed a motion to reset its peremptory exception of prescription. Shell reurged its exception of no cause of action and excepted to both the original and supplemental petitions.

IfiOn June 18, 2007, Mr. Sellers filed a second supplemental and amending petition, which among other things, added additional defendants. He added Motiva Enterprises, LLC, a partnership between Shell Chemical, L.P. and Armeo, Inc., General Partners. He also added Shell Oil Company.

On July 6, 2007, Mr. Sellers filed his third supplemental and amended petition. He added additional defendants Motiva, Enterprises LLC, Texaco Inc., Shell Oil Co. and Saudi refining Inc., a joint venture, in their individual corporate capacities and in their partnerships and joint venture capacities.

On July 24, 2007, Mr. Sellers moved to certify the class.

The Board and Shell moved to dismiss Mr. Sellers’s motion to certify the class.

On October 10, 2007, the trial judge rendered judgment, which among other things, denied the class certification. Mr. Sellers filed a petition for devolutive appeal from the judgment denying class action status.

The Board filed a notice of intent to seek a supervisory writ from the October 10, 2007 judgment denying its exception of prescription. This Court denied the writ as untimely. Julius B. Sellers, Jr., Individually And on Behalf of a Class of Persons with Common Claims v. El Paso Industrial Energy, L.P., Shell Chemical, L.P., Motiva Enterprises, L.L.C., Motiva Company, BP Amoco Chemical Company, State of Louisiana, Pontchartrain Levee Board, 08-217 (La.App. 5 Cir. 4/21/00) (unpublished).

The Board timely filed its answer to the appeal and exceptions.

Timeliness

La.C.C.P. art. 592(A) provides for a class certification procedure as follows:

A. (1) Within ninety days after service on all adverse parties of the initial pleading demanding relief on behalf of or against a class, the | proponent of the class shall file a motion to certify the action as a class action. The delay for filing the motion may be extended by stipulation of the parties or on motion for good cause shown.
(2) If the proponent fails to file a motion for certification within the delay allowed by Subparagraph A(l), any adverse party may file a notice of the failure to move for certification. On the filing of such a notice and after hearing thereon, the demand for class relief may be stricken. If the demand for class relief is stricken, the action may continue between the named parties alone. A demand for class relief stricken under this Subparagraph may be reinstated upon a showing of good cause by the proponent.
(3)(a) No motion to certify an action as a class action shall be granted prior to a hearing on the motion. Such hearing shall be held as soon as practicable, but in no event before:
(i) All named adverse parties have been served with the pleading containing the demand for class relief or have made an appearance or, with respect to unserved defendants who have not appeared, the proponent of the class has made due and diligent effort to perfect service of such pleading; and
(ii) The parties have had a reasonable opportunity to obtain discovery on class certification issues, on such terms and conditions as the court deems necessary.
(b) If the court finds that the action should be maintained as a class action, it shall certify the action accordingly. If the court finds that the action should not be maintained as a class action, the action may continue between the named parties. In either event, the court shall give in writing its findings of fact and reasons for judgment provided a request is made not later than ten days after notice of the order or judgment. A suspensive or devolutive appeal, as provided in Article 2081 et seq. of the Code of Civil Procedure, may be taken as a matter of right from an order or judgment provided for herein.

It is undisputed that Mr. Sellers filed his initial pleading demanding relief on behalf of a class in November 2005 and that all adverse parties named in that petition were served before January 2006. Mr. Sellers did not file his motion to certify until July 24, 2007, which was well beyond 90 days after January 2006. The record reflects that Mr. Sellers filed his third amended petition on July 6, 2007. He filed his motion to certify 18 days later on July 24, 2007.

|RIn the proceedings below, Mr. Sellers argued that the time limitation was discretionary. He stated he learned on May 10, 2007 from a newspaper article published in The Times Picayune and attached as Exhibit A to his memorandum, that the Shell refinery was operated by the defendants he joined as the defendants in his second supplemental petition. He asserted that he was prevented from moving for class certification under Article 592(A)(3)(a)(i), which requires a hearing, until the partnership had been served with the pleadings or made an appearance and neither of these events had yet occurred. He stated that he would move for class certification within 90 days of service or appearance of the additional defendants — the partnership and general partners.

In essence, Mr. Sellers argued that Article 592(A)(3)(a) provides that no motion to certify a class action shall be granted prior to a hearing on the motion. And under Section (3)(a)(i), the hearing could not occur until there had been service on all of the defendants. Thus, to file the motion before his amendment to add additional defendants would have been useless. He argued that the 90-day time delay conflicted with Section (8)(a)(i and ii).

In granting the motion to strike, the trial judge found that Article 592(A)(1) clearly states that a class plaintiff has 90 days from service of all adverse parties named in the initial pleading to file a motion to certify a class. The court found that the plaintiff failed to show good cause for filing an untimely motion to certify the class. He granted Shell’s motion to strike the demand for class relief and to dismiss all class- action claims. He granted the Board’s motion to dismiss the plaintiffs motion to certify the class. He denied the plaintiffs motion to certify the class as moot.

IsMr. Sellers presents the following arguments on appeal: (1) The denial of his class action status is a vain and useless act and an abuse of discretion. (2) The 90-day period is discretionary and not mandatory. (3) The motion to certify was timely because the supplemental and amending petitions related back to the first petition. (4) He timely filed the motion within the 90-day period provided by Article 592 when he filed his second and third amended petitions where he joined additional defendants. (5) He was prohibited from moving for class certification under Article 592(A)(3) until the partnership and the general partners were served with the pleadings or made an appearance — neither of which occurred as of the date of the hearing.

Mr. Sellers points out that the motions challenging class certification were not filed until approximately 16 and 21 months after he filed his November 2005 petition asserting class action allegations. Mr. Sellers argued in the proceedings below that the defendants were not surprised by his motion to certify class action.

We first point out that pleadings that set forth class claims are distinct from the required motion for class certification. Escoe v. State Farm Fire & Casualty Co., et. al, 2007 WL 2903048, *2 (E.D.La.2007). Article 592(A)(1) clearly envisions an initial pleading that demands relief on behalf of or against a class and a subsequent and separate motion for certification of the class. Id. As explained by Escoe:

[I]f a defendant’s knowledge of plaintiffs intention to move to certify the class, based on class allegations in a petition or complaint, served to excuse a timely motion to that effect, the rules would be meaningless; no plaintiff would be required to file a motion within the time limit because a defendant would always be on notice based on allegations in the complaint.

Id.

| inMr. Sellers argues that the denial of his class action status is a vain and useless act and an abuse of discretion because another member of the putative class can file a class action petition. Louisiana courts, however, do not use this “vain and useless standard.” Instead, the courts use the standard for dismissal that is set forth in the codal provision.

In Eugene v. Marathon Oil Company, 99-61 (La.App. 5 Cir. 5/19/99), 735 So.2d 933, 934, the plaintiffs appealed a judgment that granted the defendant’s motion to dismiss their class action. This Court affirmed the judgment. The court applied the 90-day requirement of Article 592(A). In that case, as in the present one, the plaintiffs did not file a motion to certify within the requisite time period. The plaintiffs’ sole ground for the basis that the trial judge erred was that their case could be consolidated with another case that was subject to prior Article 592, which did not set forth a 90-day requirement. This Court disagreed and held that the 1997 amendment to Article 592, by 1997 La. Acts, No. 839, § 1 applied to the plaintiffs’ case. The court found that the plaintiffs made no showing of good cause why the class action petition should not be dismissed. 99-61 at 2-4, 735 So.2d at 934-35.

In Grader v. Pinnacle Entertainment Inc., 06-136 (La.App. 3 Cir. 5/31/06), 931 So.2d 535, the plaintiffs appealed the trial judge’s ruling granting the defendants’ motion to dismiss the plaintiffs’ class action petition for failure to timely move for certification of the action as a class action under Article 592(A)(1). In that case, the trial judge found no good cause for the delay. The plaintiffs argued on appeal that the trial judge applied the wrong legal standard. 06-136 at 1-2, 931 So.2d at 535. The plaintiffs filed a motion to certify the class action a little over three months after the defendants were served. 06-136 at 2, 931 So.2d at 537. Relying on its earlier pronouncement in Martello v. City of Ferriday, 04-90, p. 2 (La.App. 3 Cir. 11/3/04), 886 So.2d 645, 648, units denied, 04-2964, 04-2976 (La.2/25/05), 894 So.2d 1147, 1148, the Crader court reaffirmed that the clear wording of Article 592(A)(1) requires that a motion to certify the action as a class action must be filed within 90 days after service on all adverse parties of the initial pleading. 06-136 at 2, 931 So.2d at 537 (Internal quotation marks omitted).

Therefore, pursuant to the clear wording of Article (A)(1), Mr. Sellers’ motion to certify was untimely.

In Stefanias v. Certain Underwriters at Lloyd’s London, 2007 WL 1827202, *1-2 (E.D.La.2007), the United States District Court for the Eastern District of Louisiana considered Article 592’s timeliness provision. The court struck the demand for class action relief because the motion to certify was not timely filed; the parties had not stipulated to an extension of time, and the mover had not shown good cause.

In Escoe v. State Farm Fire & Casualty Co., et. al., 2007 WL 2903048 (E.D.La. 2007), the United States District Court for the Eastern District of Louisiana held that the local rule, which was similar to Article 592, imposed by its plain language a requirement that the plaintiff move to certify the class within 90 days of his amended petition in which he first made class allegations. 2007 WL 2903048, * 2. In that case, plaintiffs motion was untimely. Further, the plaintiff never requested an extension of time in which to file his motion. The court noted that in support of his motion, the plaintiff argued he was delayed in filing for various reasons. The court opined that there was no indication that any such delay posed a significant barrier to filing the motion. 2007 WL 2903048, * 2, n. 1.

Thus, the Stefanias and Escoe courts’ strict application of the 90-day requirement is similar to Louisiana jurisprudence applying Article 592.

| ^Furthermore, a plaintiff is required to show good cause why the class action petition should not be dismissed when the defendant files a motion to dismiss based on failure to comply with the procedure set forth in Article 592(A)(1). Crader, supra, citing Eugene, supra with approval. 06-136 at 3, 931 So.2d at 537.

In the present case, Mr. Sellers argues that Article 592(A)(3)(a)® prohibited him from filing his motion until he filed the amended petitions because the required hearing could not be held until “[a]ll named adverse parties have been served with the pleading containing the demand for class relief or have made an appearance.” Article 592(A)(3)(a)®. And he moved for class certification on July 22, 2007 within 90 days of the filing of the second supplemental petition joining the partnership and the general partners.

In Martello, supra, the Third Circuit considered the issue of whether, under Article 592(A)(1), additional hearings for certification were necessary when a plaintiff added new defendants and claims to the class action that had been previously certified. The court held that the codal provision does not require a new certification hearing when a previously certified class suit is amended. Thus, the trial court erred in dismissing one of the plaintiffs’ claims and three defendants from the class action suit. 04-90 at 2-4, 886 So.2d at 647-48.

We hold that Mr. Sellers was not prohibited from moving for class certification until the partnership and the general partners were served with the pleadings or made an appearance. Article 592 does not require a new certification hearing when a previously certified class suit is amended. Martello, supra, 04-90 at 2-4, 886 So.2d at 647-48.

In Crader, supra, the plaintiffiappellant made the same argument that Mr. Sellers makes here — that Article 592(A)(2) states “the demand for class relief may be stricken” rather than it shall be stricken. In Crader, as in the instant case, the 113appellants argued that dismissal was not mandated. The Crader court opined that the plaintiffs had failed to file a motion to extend the time delay and also had failed to present evidence showing good cause for the failure to timely file the motion to certify. The court saw no reason why the plaintiffs were prevented from filing a motion for class certification within the 90-day period such that the delay should be extended. The court found no abuse of the trial judge’s discretion in failing to find good cause. 06-136 at 3, 931 So.2d at 537

Similarly, we find that Mr. Sellers has failed to show that he was prohibited from filing a motion to certify within the 90-day period. The codal provision did not prohibit him from doing so.

Mr. Sellers argues that his amending petitions “relate back” to his first petition and therefore he timely filed the motion to certify within 90 days of the supplemental petitions.

We are unpersuaded by Mr. Sellers’ argument that his motion is timely because it was filed within 90 days of the amended petitions. Article 592(A)(1) clearly states that the motion must be filed within 90 days of service on all adverse parties of the initial pleading demanding relief on behalf of or against a class. If Article 592 were intended to apply to all subsequent amended petitions, it would have so stated. It did not. In Howard v. Gutierrez, 474 F.Supp.2d 41, 54 (D.D.C.Cir.2007), reconsideration denied, 503 F.Supp.2d 392 (D.D.C.2007), the D.C. Circuit Court of Appeals rejected a similar argument in considering its Local Rule 23.1(b)’s 90-day requirement. The court noted that to hold otherwise would essentially render the local rule without its legal effect because the plaintiff could circumvent the timeliness provision by filing amended petitions. Id. at 54-55.

|14In summary, we conclude that the trial judge did not err in finding the motion to certify was untimely. We also conclude that the trial judge did not abuse his discretion in finding that Mr. Sellers failed to show good cause for the delay.

The remaining issue concerns the Board’s answer to the appeal and the exceptions.

Answer to Appeal/Peremptory Exceptions

Mr. Sellers has appealed from that portion of the October 10, 2007 that granted the Board’s motion to strike his demand for class action status. That same judgment denied, among other preliminary matters, the Board’s exceptions of prescription and no cause of action. That judgment, however, did not decide the merits of Mr. Sellers’ claims in whole or in part.

La.C.C.P. art. 1841 provides:

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.

The October 10, 2007 judgment that denied class action status and overruled the Board’s exceptions was an interlocutory judgment. An interlocutory judgment is appealable only when expressly provided by law. La.C.C.P. art. 2083(C). Therefore, unless “expressly provided by law,” the denial of the exceptions and the denial of class action status are not appealable.

La.C.C.P. art. 592(A)(3)(b), however, expressly provides jurisdiction to entertain Mr. Seller’s interlocutory appeal from the denial of class certification. The article provides for a certification procedure for class actions. It affords “[a] | ^suspensive or devolutive appeal, as provided in Article 2081, et. seq. of the Code of Civil Procedure, [which] may be taken as a matter of right from an order or judgment provided for herein.” The order or judgment provided for is one that either grants or denies class certification. La.C.C.P. art. 592(A)(3)(b). On the other hand, the legislature did not include the right to appeal any other interlocutory judgment, such as the peremptory exceptions that were filed in this case. As a result, we have no appellate jurisdiction to consider an appeal from the denial of the exceptions.

But the Board did not appeal the judgment. Instead, it filed an answer to the appeal. So we must first determine whether we have appellate jurisdiction to consider the Board’s answer to the appeal since the answer challenges the interlocutory, nonappealable rulings denying the peremptory exceptions.

The Board seeks to modify the October 10th judgment insofar as it denied the exceptions. Under La.C.C.P. art. 2133 an answer to an appeal is in the character of a cross appeal in which the appellee takes advantage of an appeal entered and perfected by an appellant, in the hope of procuring an alteration or amendment of the judgment rendered in a manner beneficial to the appellee. Francois v. Ybarzabal, 483 So.2d 602, 605 (La.1986) (Internal quotations and citation omitted). Thus, the Board’s answer is in the character of an appeal on its part from that portion of the judgment rendered against him in favor of the appellant and of which he complains in the answer. As such, we lack appellate jurisdiction to consider what is in essence a cross appeal.

We distinguish, however, the present restricted appeal from an unrestricted appeal. When an unrestricted appeal is taken from a final judgment, the appellant is entitled to a review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the correctness of the final judgment from which the party 11fihas taken the appeal. Sporl v. Sporl, 00-1321 (La.App. 5 Cir. 5/30/01), 788 So.2d 682, 683-84, unit denied, 01-1926 (La.10/12/01), 799 So.2d 506 (Citation omitted).

In Trahant v. Perez, 02-1414, p. 8 (La. App. 4 Cir. 3/19/03), 843 So.2d 479, 484, the Fourth Circuit considered an authorized appeal pursuant to La.C.C.P. art. 1915(A)(6) — an appeal that “imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G).” La.C.C.P. art. 1915(A)(6). In that appeal, the appellant appealed the judgment of the trial court granting the plaintiffs rule for contempt and sanctions against the appellant. However, the appellant also filed the exception of no cause of action in the appellate court. The court found that it lacked jurisdiction to consider the exception and dismissed it. It concluded that since the appeal was a restricted appeal of the contempt judgment, the appellant had no right as of yet to appeal the interlocutory judgment on the exception of no cause of action.

The court also concluded that La. C.C.P. art. 2163, which provides in pertinent part that “[t]he appellate court may consider the peremptory exception filed for the first time in that court,” was inapplicable. The court held that the legislative grant of appellate authority to consider peremptory exceptions that are filed for the first in that court “assumes that at the time the exception is filed the appellate court has jurisdiction over the action or proceeding to which exception is taken.” 02-1414 at 9, 843 So.2d at 484 (quoting Toledo Bend Proprietors v. Sabine River Authority, 395 So.2d 429, 432 (La.App. 3 Cir.1981), unit denied, 400 So.2d 903 (La.1981)).

Similarly, in this case, the principal demand has not been tried on its merits and no final judgment has yet been rendered. Therefore, in this restricted appeal, we lack jurisdiction to consider the peremptory exceptions. Moreover, the sole | tissue on appeal is whether the trial judge abused his discretion in granting the motion to strike class certification as untimely. Thus, the peremptory exceptions are unrelated to the issue of timeliness.

This court has discretion to convert an appeal to an application for supervisory writs. Stelluto v. Stelluto, 05-0074, p. 7 (La.6/29/05), 914 So.2d 34, 39. In the present case, the Board attempted to seek supervisory writs from the October 10, 2007 interlocutory ruling. However, the Board’s notice of intent was filed on January 9, 2008, beyond the 30-day delay provided for seeking supervisory writs. See, Rule 4-3, Uniform Rules of Court-Courts of Appeal, and La.C.C.P. art. 1914. We denied the untimely writ on the basis that we lacked jurisdiction to review the writ application. Julius B. Sellers, Jr., Individually And on Behalf of a Class of Persons with Common Claims v. El Paso Industrial Energy, L.P., Shell Chemical, L.P., Motiva Enterprises, L.L.C., Motiva Company, BP Amoco Chemical Company, State of Louisiana, Pontchartrain Levee Board, 08-217 (La.App. 5 Cir. 4/21/00) (unpublished).

Moreover, the Board filed its answer to the appeal and exceptions on May 20, 2008, well beyond the 30-day time delay for seeking supervisory writs. If viewed as an application for writs, the application was still untimely. Therefore, under these circumstances, we decline to exercise our discretion to convert the answer to a supervisory writ.

Accordingly, the answer to the appeal is dismissed for lack of jurisdiction.

Our finding that we lack jurisdiction to entertain the answer and exceptions at this time does not, however, preclude the Board from reurging the exceptions in the trial court. These interlocutory rulings do not constitute final judgments. Thus, the Board can reurge the exceptions. Also, once the demand for class certification is stricken, “the action may continue between the named parties alone.” La.C.C.P. | isart. 591(A)(2). Thus, should the other alleged plaintiffs file individual petitions, the Board can, if necessary, reurge the exceptions to these petitions as well.

Decree

Accordingly, for the reasons stated, the judgments granting the defendants’ motion to strike class certification and denying the plaintiffs motion for class certification is affirmed. The Board’s answer and peremptory exceptions are dismissed.

ANSWER TO APPEAL, EXCEPTIONS OF NO CAUSE OF ACTION AND PRESCRIPTION DISMISSED; JUDGMENT DENYING CLASS ACTION STATUS AFFIRMED.

      . The case has not been certified as a class action despite Mr. Sellers's representation that he is proceeding in his representative capacity. Therefore, because only Mr. Sellers has appealed, it is proper that we solely address his claim.

      . Pursuant to the plaintiff’s motions, defendants BP Amoco Chemical Company, formerly Amoco Chemical Company and El Paso Industrial Energy, L.P., formerly Valero Industrial Gas, L.P., were dismissed on August 28, 2007 and November 2, 2006, respectively.

      . The trial judge also overruled the exceptions of no cause of action filed by the Board and Shell. The court overruled Shell’s exceptions of prematurity and no right of action. The court pretermitted the exceptions of prescription filed by the Board and Shell pending amendment of the petition. The State's exception of no cause of action was continued without date because the State did not appear.

      . On May 18, 2007, the State of Louisiana and the State of Louisiana, through the Department of Environmental Quality, joined in and adopted Shell’s motion to strike the demand for class action, the exception of no cause of action and the exception of prescription.

      . Shell asserted that Motiva enterprises, LLC, the party that owns and operates the Shell refinery, was named in the original petition and had been served and made an appearance. It is not a partnership and it has no general partners.


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Evans ALEXANDER.
    No. 08-KA-580.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 25, 2009.

      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 EDWARD A. DÚFRESNE, JR., CLARENCE E. McMANUS, and MADELINE JASMINE. Pro Tempore.
   CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

|2Pefendant, Evans Alexander, was charged by bill of information with one count of possession of heroin with intent to distribute, in violation of LSA-R.S. 40:966 A (Count 1); and possession of cocaine with intent to distribute, in violation of LSA-R.S. 40:967 A (Count 2). Defendant pled not guilty at arraignment and. was tried by a twelve-person jury on May 20, 2008.

Narcotics agent Robert Blackwell of the Jefferson Parish Sheriffs Office testified at trial that on August 8, 2007, he was assigned to a special crimes task force that included his department as well as the Gretna and Westwego police departments. The task force targeted high crime areas in those jurisdictions. On that day, Agent Blackwell took part in surveillance outside of Seafood Express, a takeout restaurant on the Westbank Expressway in Marrero. He and other officers were particularly interested in the area adjacent to a self-storage facility behind the restaurant.

Detective Ashton Gibbs of the Gretna Police Department testified that he saw a tan Chevrolet Impala back into a space in the parking lot of the storage facility. He later identified defendant, Evans Alexander, as the driver of that ^vehicle. Detective Gibbs watched through binoculars as another car entered the parking lot and parked alongside defendant’s car. The driver of that car exited his vehicle and approached the driver’s window of defendant’s car. The two men engaged in what appeared to be a hand-to-hand transaction. Detective Gibbs saw money change hands, and defendant dropped something into the other man’s hand. The second man then returned to his vehicle and left the area. Thereafter, Detective Gibbs saw another car pull into the parking lot, and its driver engaged in a similar transaction with defendant.

Detective Gibbs testified that at that point, he and other officers approached defendant’s car. Defendant was the only occupant. Detective Gibbs identified himself, and instructed defendant to exit the vehicle. Defendant refused, and he moved his hands towards the driver’s seat, as if he were trying to conceal something. Finally, defendant unlocked the car door, and the officers took him out of the vehicle. The officers instructed defendant they were conducting a narcotics investigation.

Agent Blackwell testified that a criminal records check revealed defendant had two outstanding attachments. The officers advised defendant of his rights, and arrested him on the attachments. The officers then searched defendant’s car incident to the arrest. Agent Blackwell testified that he recovered a clear plastic bag from the floorboard of the driver’s area. The bag contained 17 foil packets, each of which contained a brown, powdery substance. The bag also contained three off-white, rock-like objects. The parties agreed to stipulate that if Deputy Waguespaek were called to testify, he would be accepted as an expert in the identification of controlled dangerous substances, and that he would testify in accordance with his written report. The parties further stipulated that Waguespaek 14would testify that the brown powdery substance in the foil packets tested positive for heroin; and that the off-white, rock-like objects tested positive for cocaine.

Detective Gibbs testified that he recovered $313.00 in cash from defendant’s pants pocket. The detective asked defendant where he had obtained the money, and defendant did not respond.

Defendant’s wife, Elaine Alexander, testified on his behalf at trial. She stated she has known defendant for 20 years, and they have been married for 13 years. Mrs. Alexander further testified that defendant has a longtime drug habit. She has never seen him use narcotics, but she has found his drug paraphernalia, and she has noticed defendant behaves differently when he is under the influence of drugs.

Mrs. Alexander testified that defendant does odd jobs, and that he works occasionally at his cousins’ auto body shop. The body shop operates in the storage facility where defendant was arrested.

Defendant testified he has used a variety of illicit drugs since the age of 13. He stated that the money officers seized at the time of his arrest was located in the glove compartment of his vehicle, and that he earned it by working on cars. He was arrested in front of the place where he works, but he did not tell officers that because he did not want them to search the premises.

Defendant said his drug habit at the time of his arrest was such that he snorted three or four foil packets of heroin daily before lunchtime. He also smoked crack cocaine. Defendant testified that he did not sell drugs. All of the heroin the officers seized was intended for his own use. He had a large amount that day because he was on his way out of town for a family reunion.

On May 20, 2008, the jury returned a verdict of guilty as charged as to both counts. Defendant filed a timely motion for new trial. The trial court denied the 1Bmotion without hearing on June 6, 2008. Defendant waived statutory sentencing delays.

The court then sentenced defendant to twenty-five years on each count. The court ordered that the sentences be served concurrently with each other. As to Count 1, the court further ordered that the first five years of the sentence be served without benefit of parole, probation, or suspension of sentence. As to Count 2, the court ordered that the first two years of the sentence be served without benefit of parole, probation, or suspension of sentence.

On the same day, the State filed a habitual offender bill of information, alleging defendant was a second felony offender. Defendant admitted to the allegations in the habitual offender bill. The trial court accepted defendant’s admission. The court then vacated the sentence on Count 1 and, in accordance with a sentencing agreement, imposed an enhanced sentence of twenty-five years at hard labor on that count, without benefit of parole, probation, or suspension of sentence. Defendant now timely appeals.

DISCUSSION

Defendant’s appointed appellate counsel has filed an Anders brief in accordance with the procedures set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam); and State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990); asserting that he has thoroughly reviewed the record in this case and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests leave to withdraw as counsel of record. The State agrees that there are no non-frivolous issues for defendant’s counsel to raise on appeal.

| „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 the record. The request must be accompanied by ‘“a brief referring to anything in the record that might arguably support the appeal” ’ so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

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

In conducting a review for compliance with Anders, an appellate court must review the record with an independent eye to determine whether the appeal is wholly frivolous. State v. 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. But 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 appellant counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Counsel states that he found no error as to the form of the bill of information, and the minute entries in the record indicate there was no error in the jury selection process.

Counsel suggests that the initial investigatory stop was legal, and the seizure of the evidence was proper. Counsel says that, in reviewing the evidence at trial for sufficiency, he has found nothing that merits a challenge on appeal. He notes that the parties stipulated to the lab analysis identifying the seized substances as cocaine and heroin. Counsel further points out that defendant admitted to possession of the drugs. While defendant denied that he intended to sell the drugs, counsel suggests that the jury simply did not credit his testimony.

Counsel notes that defendant’s enhanced sentence on the heroin charge was the minimum allowed for a second offender under the Habitual Offender Law, and that, in any case, defendant agreed to the sentence as part of a sentencing agreement. Consequently, he cannot challenge that sentence on appeal.

Appellate counsel has filed a motion to withdraw as attorney of record which states he has mailed defendant a copy of his brief. Attached to the motion is a photocopy of a letter appellate counsel sent to defendant, informing him he may file a supplemental pro se brief in this Court. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he would have until September 9, 2008 to file a pro se supplemental brief. As of the date of this opinion, defendant has not filed a pro se brief.

Is An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The bill of information is proper as to form. The minute entries do not reveal any non-frivolous jury issues counsel could have raised.

A review of the record indicates that defendant did not file a pre-trial motion to suppress evidence, nor did he object to the admission of any of the State’s evidence at trial. LSA-C.Cr.P. art. 703 F provides, in pertinent part, “Failure to file a motion to suppress evidence in accordance with this Article prevents the defendant from objecting to its admissibility at the trial on the merits on a ground assert-able by a motion to suppress.” Furthermore, “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence.” La.C.Cr.P. art. 841(A). Accordingly, defendant waived any arguments he might have made with regard to the legality of the investigatory stop or the officers’ seizure of the narcotics evidence.

As counsel notes, there is no non-frivolous argument defendant might make as to the sufficiency of the evidence at trial. Defendant admitted to possessing the narcotics seized from his car. Defendant denied that he either sold or intended to sell the drugs. But as appellate counsel remarks, the jury simply did not believe defendant. A reviewing court does not assess the credibility of witnesses or reweigh the evidence at trial. State v. Gordon, 06-8, p. 7 (La.App. 5 Cir. 3/80/06), 928 So.2d 689, 694, writ denied, 06-2819 (La.4/20/07), 954 So.2d 159. The trier-of-fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness. Id. The trier-of-fact is presumed to have acted rationally. Id. In any case, Detective Gibbs testified that he saw defendant engage in two hand-to-hand transactions in which money and some 19unknown objects changed hands. From that testimony, the jury could have inferred that defendant sold drugs to the two unknown subjects.

Defendant’s sentences are both within the statutory limits. Additionally, defendant entered an admission to the allegations in the habitual offender bill of information. The district court properly advised defendant of his right to a habitual offender hearing and his right to remain silent. The judge ascertained that defendant understood those rights and that he wished to waive them and plead guilty. Defendant also completed a multiple bill waiver of rights form which contained the penalty range to which he was exposed and the sentence he would receive. Since defendant’s habitual offender sentence was part of a sentencing agreement, he is precluded from raising a claim of excessiveness on appeal. State v. Cross, 06-866, p. 4 (La.App. 5 Cir. 4/11/07), 958 So.2d 28, 30.

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 independent review of the record supports counsel’s assertion, we affirm defendant’s conviction and grant appellate counsel’s motion to withdraw as attorney of record.

ERROR PATENT DISCUSSION

Defendant, through appellate counsel, requests an error 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 following matters are presented for review.

First, there is an inconsistency between the transcript and the commitment. The commitment nunc pro tunc reflects that the trial court ordered both the habitual offender sentence on Count 1 and the sentence on Count 2 be served at Imhard labor. While the transcript shows the court imposed the habitual offender sentence at hard labor, it does not show that the court explicitly ordered the sentence on Count 2 be served at hard labor. The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). LSA-C.Cr.P. art. 879 requires a court to impose a determinate sentence. If the applicable sentencing statute allows some discretion, the court’s failure to indicate whether the sentence was to be served at “hard labor” is an impermissible indeterminate sentence. State v. Weatherspoon, 06-539, p. 34 (La. App. 5 Cir. 12/12/06), 948 So.2d 215, 236, writ denied, 07-0462 (La.10/12/07), 965 So.2d 398. But since defendant was sentenced under LSA-R.S. 40:967 B(4)(b), which requires the sentence be served at hard labor, the sentence is determinate and the court’s failure to say as much is harmless error. No corrective action is required.

Second, there is a discrepancy between the commitment and the transcript. Defendant was found guilty of possession with intent to distribute heroin (Count 1) and possession of cocaine with intent to distribute (Count 2). But the commitment reflects that defendant was found guilty on “DIST/WITD OF A CDS-HEROIN,” and “DIST/POSS. WITD OF A CDS-COCAINE.” Those entries make it unclear whether defendant was convicted of possession with intent to distribute, or of the separate offense of distribution. Therefore, we order the trial court to amend the commitment nunc pro tunc to properly reflect the offenses for which defendant was convicted in order to prevent confusion. State v. Sam, 05-88, p. 14 (La.App. 5 Cir. 5/31/05), 905 So.2d 379, 387, writ denied, 05-2100 (La.3/10/06), 925 So.2d 510.

Next, as to Count 1, the court ordered that the entire habitual offender sentence be served without benefit of probation, or suspension of sentence for the | nentire term, as is required under LSA-R.S. 15:529.1 G. But the underlying sentencing provision, LSA-R.S. 40:966 B(l), additionally requires that “at least five years” of the sentence be served without parole. Since the trial court did not restrict parole in any way in imposing the enhanced sentence, and the statute requires an exercise of the trial court’s sentencing discretion in limiting parole eligibility, we vacate the defendant’s sentence and remand this case for re-sentencing in accordance with the underlying statute. State v. Tapps, 02-0547, pp. 13-14 (La. App. 5 Cir. 10/29/02), 832 So.2d 995, 1004.

Finally, the trial court’s advisal regarding the prescriptive period for seeking post-conviction relief was incomplete. The court informed defendant he would have “two years from the date the sentence becomes final to file post conviction relief applications.” But LSA-C.Cr.P. art. 930.8 A specifically provides that no post-conviction relief application “shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final[.]” [emphasis supplied]. Therefore, we order the trial court to properly advise the defendant of the prescriptive period upon resentencing of defendant, in accordance with the above.

Accordingly, we affirm defendant’s convictions, vacate his habitual offender sentence and remand for resentencing and correction of errors patent. Further, we grant defendant’s appellate counsel’s motion to withdraw as attorney of record.

CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND REMANDED FOR RESENTENCING; MOTION TO WITHDRAW AS ATTORNEY OF RECORD GRANTED.