author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Daryl TURNER.
    No. 09-KA-1079.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2010.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Baton Rouge, Louisiana, for Defendant/Appellant.
    Daryl Turner, Olla, Louisiana, Defendant/Appellant in Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|POn August 25, 2006, the Jefferson Parish District Attorney filed a bill of information charging Defendant, Daryl Turner, with Possession with Intent to Distribute Cocaine in violation of LSA-R.S. dOiOGTlA). Defendant pled not guilty at arraignment on October :I1, 2006.

Defendant filed a Motion to Suppress Evidence, which was granted on May 16, 2007. The State applied for supervisory writs, seeking review of the trial court’s ruling. This Court reversed the trial court’s ruling on the motion to suppress on July 6, 2007. Defendant filed a writ application with the Louisiana Supreme Court, which was denied on October 26, 2007.

On November 15, 2007, Defendant withdrew his not guilty plea, entered a plea of guilty to a reduced charge of possession of cocaine in violation of LSA-jR.S. 40:967(0,3 and signed a'Waiver of Constitutional Rights form. The State filed a multiple offender bill of information on the same day, to which Defendant entered a plea of guilty as a third felony offender. In accordance with his plea agreement, pursuant to which he would be sentenced on the multiple bill as to the possession of cocaine charge, Defendant was sentenced to eight years imprisonment at hard labor, without benefit of probation or suspension of sentence.

On February 3, 2009, Defendant filed a Motion to Modify Sentence. The district court denied Defendant’s motion on February 11, 2009, on the grounds that (1) pursuant to LSA-C.Cr.P. art. 881, a sentence cannot be amended once the defendant has begun serving the sentence, (2) Defendant was not entitled to seek review of a sentence imposed in conformity with a plea agreement, pursuant to LSA-C.Cr.P. art. 881.2(A)(2), and (3) under LSA-C.Cr.P. art. 881, the trial court can only amend a felony sentence which is ordered without hard labor.

Defendant subsequently filed an Application for Post Conviction Relief (APCR) requesting an out-of-time appeal on the grounds that the time for obtaining an appeal as a matter of right had elapsed. The district court granted Defendant’s motion for an out-of-time appeal on July 27, 2009, and dismissed his APCR without prejudice. Appellate counsel timely filed a brief in this Court, and Defendant filed a supplemental pro se brief which was stamped as untimely by the Clerk of this Court. Nevertheless, finding no grounds for reversal, we hereby affirm defendant’s conviction and sentence.

1 ¿FACTS

Because Defendant entered a guilty plea without proceeding to trial, the facts of this case are taken from the bill of information which provides that on August 13, 2006, in violation of LSA-R.S. 40:967(A), Defendant knowingly and intentionally possessed, with intent to distribute, cocaine.

ANDERS BRIEF

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

DISCUSSION

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that |ficounseI 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.

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

Defendant’s appellate counsel asserts that after a detailed review of the record, she can find no non-frivolous issues to raise on appeal. Counsel first notes that Defendant pled guilty in the case and received a negotiated sentence on his underlying charges, as well as on the multiple offender charge. Counsel further |finotes that by pleading guilty, Defendant has waived his right to challenge the sufficiency of the evidence to support his conviction. However, counsel contends that the facts adduced during the hearing on the motion to suppress, as well as Defendant’s admission during his plea, were sufficient to establish the elements of a violation of LSA-R.S. 40:967(C). Counsel further notes that the trial court fully explained the rights that Defendant was giving up by pleading guilty.

With regard to Defendant’s sentence, appellate counsel notes that the district court explained the specific sentence it would impose if Defendant entered a guilty plea, and that Defendant entered into a negotiated plea involving a specific sentence on the underlying charge and on the multiple offender charge. Appellate counsel asserts that Defendant cannot seek review of his sentence because LSA-C.Cr.P. art. 881.2 prohibits a defendant from appealing or seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.

Appellate counsel has filed a motion to withdraw as attorney of record which states that she notified Defendant of the filing of this motion and advised him of his right to file a pro se brief in this appeal. Additionally, this Court sent Defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until February 18, 2010, to file a pro se supplemental brief. Defendant filed a pro se supplemental brief in this matter on April 5, 2010, which was stamped as untimely in accordance with URCA Rule 2-13 by this Court’s Clerk’s Office.

The State filed a response to appellate counsel’s brief, noting that the brief shows a complete and thorough recitation of the procedural history of the case, as 17well as a detailed statement of facts pertinent to the conviction with citations to the record to assist the appellate court. The State contends that counsel has “cast an advocate’s eye” over the record and found no significant non-frivolous issues upon which to base an appeal. The State requests that this Court affirm Defendant’s conviction and sentence.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

We find that the bill of information in this case properly charged Defendant and presents no non-frivolous issues supporting an appeal. As required, it plainly, concisely, and definitely states the essential facts constituting the offense charged, and cites the statute Defendant violated. It also sufficiently identifies Defendant and the crime charged. See generally LSA-C.Cr.P. arts. 464-66.

As reflected by the minute entries and commitment, Defendant appeared' at each stage of the proceedings against him. He appeared at his arraignment, guilty plea and sentencing. As such, Defendant’s presence does not present any issues which would support an appeal.

The multiple offender bill of information also properly charged Defendant, therefore presenting no non-frivolous issues supporting an appeal. Defendant appeared at each stage of the proceedings on the multiple bill. As such, Defendant’s presence at the multiple bill proceedings does not present any issues which would support an appeal.

Further, Defendant pled guilty to a reduced charge of possession of cocaine in violation of LSA-R.S. 40:967(C), and signed a Waiver of Constitutional Rights. Defendant also pled guilty as a third felony offender to the multiple offender bill of information. When a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes | sreview of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, pp. 5-6 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 665.

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

The record shows that Defendant was aware he was pleading guilty to possession of cocaine and also that he was pleading guilty on the multiple offender bill of information as a third felony offender. He was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin, on both the possession of cocaine charge and with regard to the multiple offender bill. Defendant was advised of these rights by means of the Waiver of Constitutional Rights Plea of Guilty form (waiver of rights form). In the waiver of rights form, Defendant initialed next to each of these rights and signed the form, indicating that he understood that he was waiving these rights by pleading guilty. Defendant was also advised of these rights during the colloquy with the trial court in which the court separately advised Defendant of his rights with regard to his guilty pleas on both the possession of cocaine charge and the multiple offender bill. Defendant indicated during the colloquy that he understood that he was waiving these rights.

| ^Defendant further indicated that he was satisfied with the representation of his attorney. He also stated that he had not been forced, coerced, or threatened to enter his guilty plea.

Defendant was advised that he faced a maximum sentence of five years at hard labor and/or a fine of up to $5,000 on the possession of cocaine charge. During the colloquy, he was informed that the sentence was to be served at hard labor. Defendant was further advised that, if the court accepted his plea agreement, he would be sentenced on the multiple bill as to the possession of cocaine charge to eight years at hard labor, without benefit of probation or suspension of sentence. On the waiver of rights form, Defendant also indicated that he understood that he would be sentenced to eight years at hard labor at the Department of Corrections and signed the form, indicating that he understood his sentence and his status as a third felony offender.

Finally, Defendant’s sentence does not present an issue for appeal. Defendant’s sentence falls within the sentencing range prescribed by statute. See LSA-R.S. 40:967(C); LSA-R.S. 15:529.1. Further, LSA-C.Cr.P. art. 881.2 A(2) precludes a defendant from seeking review of a sen-fence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. As noted above, Defendant was informed that he would receive an eight year sentence on the multiple bill as to the possession of cocaine charge prior to entering his guilty plea. He indicated his understanding of the sentence, both in [10court and on his waiver of rights form. Based on the foregoing, the proceedings surrounding Defendant’s guilty plea and sentence do not present any non-frivolous issues to be raised on appeal.

We therefore conclude that appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and we find that an independent review of the record supports counsel’s assertion. Although the supplemental pro se brief filed1 by Defendant has been stamped as untimely, we have nevertheless reviewed the arguments raised therein and find them to be without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

Illegal Search and Seizure: Police officer did not have reasonable suspicion to arrest him, did not have probable cause to support a lawful arrest, [sic]

Constitutional Violation: The seizure is invalid and violated Mr. Daryl Turner’s] Constitutional Rights [sic] nder the 4th Amendment USCA.

DISCUSSION

Both of these assignments are arguments based on the same issues and will be considered together. Defendant argues that the evidence against him was seized pursuant to an unlawful arrest and an illegal search.

However, as Defendant entered an unqualified guilty plea, he gave up the right to assert on appeal any allegations of defect, such as illegal arrest or illegal search and seizure. State v. Johnson, 08-449, p. 4 (La.App. 5 Cir. 12/16/08), 3 So.3d 17, 19, writ denied, 09-0787 (La.12/18/09), 23 So.3d 932.

As previously noted, Defendant filed a Motion to Suppress Evidence arguing that the physical evidence intended for use against Defendant was unlawfully seized. Defendant’s motion to suppress was initially granted by the trial court. |„ The State applied for supervisory writs, and this Court reversed the trial court’s ruling on the motion to suppress. Defendant filed a writ application with the Louisiana Supreme Court, which was denied on October 26, 2007. Defendant subsequently withdrew his not guilty plea and entered a plea of guilty to possession of cocaine. At the time of his guilty plea, Defendant did not reserve his right to appeal the ruling on his motion to suppress evidence.

An unqualified plea of guilty waives all nonjurisdictional defects in the proceedings prior to entry of the guilty plea, and precludes review of such defects either by appeal or post conviction relief. Johnson, supra, 08-449 at 4, 3 So.3d at 19 (citing State v. Crosby, 338 So.2d 584, 588 (La.1976)); see also Wingerter, 05-697 at pp. 5-6, 926 So.2d at 665; see also State v. May, 00-43 (La.App. 5 Cir. 5/17/00), 760 So.2d 1260, 1261 (citing State v. Davis, 97-850 (La.App. 5 Cir. 2/11/98), 708 So.2d 1121). A defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case under Crosby. May, 760 So.2d at 1261. There is nothing in the record to show that the defendant reserved his right to appeal the denial of his motion to suppress.

Accordingly, because Defendant has not reserved the right to appeal the denial of the motion to suppress, the pro se assignments lack merit.

ERROR PATENT DISCUSSION

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. The following matter was discovered.

|12There is a discrepancy between the commitment and the transcript regarding the citation of the underlying charge. Although the commitment indicates that Defendant pled guilty to possession with intent to distribute cocaine in violation of LSA-R.S. 40:967(A), the record clearly evidences that the charge was amended on November 15, 2007, to possession of cocaine in violation of LSA-R.S. 40:967(C), and that Defendant pled guilty to this reduced charge.

Generally, the transcript prevails where there is an inconsistency between the minute entry and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). We therefore order that the commitment be corrected to reflect that Defendant pled guilty to possession of cocaine in violation of LSA-R.S. 40:967(C) so as to maintain consistency with the trial transcript. We further instruct the trial judge to direct the Clerk of Court to transmit the revised commitment to the Secretary of the Department of Corrections in the same manner as the original commitment was transmitted and instruct the Department of Corrections to provide Defendant with a copy of the revised commitment. See State v. Parks, 07-655, p. 20 (La.App. 5 Cir. 1/22/08), 977 So.2d 1015, 1029.

DECREE

Accordingly, for the reasons assigned herein, the conviction and sentence of Defendant, Daryl Turner, are affirmed. The trial court is hereby instructed to correct the commitment in accordance with our findings in this opinion. In addition, appellate counsel’s motion to withdraw is hereby granted.

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

      . On August 25, 2006, the Jefferson Parish District Attorney filed a separate bill of information charging Defendant with Possession of Marijuana in violation of LSA-R.S. 40:966(C) in case number 06-4510.

      . At the same time, Defendant withdrew his former not guilty pleas in two other pending cases (case numbers 06-4510 and 07-1002), both for possession of marijuana, and entered pleas of guilty as charged.

      .Defendant was also sentenced to six months in Parish Prison for each of the two counts of possession of marijuana in case numbers 06-4510 and 07-1002, with credit for time served, to run concurrently with each other.

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

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

      . Defendant was granted an extension to file a pro se supplemental brief. Defendant's pro se brief was due on March 29, 2010, but not filed until April 5, 2010. The certificate of service indicates that it was mailed on March 27, 2010, but the postmark date is April 5, 2010. It appears from the Jackson, MS return address and postmark location that the brief was mailed by one of Defendant’s family members on April 5, 2010.

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

      . It is noted that although Defendant had not been sentenced on the underlying conviction before the trial court imposed the enhanced sentence, the trial court’s failure to sentence Defendant before imposing an enhanced sentence does not present a problem because LSA-R.S. 15:529.1(D)(3) provides that the "court shall sentence him [Defendant] to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed ...” (emphasis added). See State v. Sanders, 97-892, p. 3 (La.App. 5 Cir. 3/25/98), 717 So.2d 234, 236, n. 2, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774; see also State v. Hills, 98-0507, p. 8 (La.App. 4 Cir. 1/20/99), 727 So.2d 1215, 1218.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    Jan P. JUMONVILLE v. CITY OF KENNER and Hamp’s Construction LLC.
    No. 09-CA-1042.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2010.
    Jan P. Jumonville, Covington, LA Appellant in Proper Person.
    Patricia S. LeBlanc, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

12AppeIlant Jan P. Jumonville appeals the trial court’s judgment that denied her petition for a permanent injunction and her amended petition for damages, thereby allowing the demolition of all structures on her lot at 3857 Martinique Avenue in the City of Kenner to proceed. For the following reasons, we affirm the trial court’s judgment.

ASSIGNMENTS OF ERROR

On appeal, Mrs. Jumonville assigns the following errors of the trial court:

1. The Trial Court erred in dismissing Plaintiffs Petition for Damages in tort and in dismissing Plaintiffs Supplemental and Amended Petition for Damages when issues were not joined, a trial date had not been set and there had been no trial on the merits.
2. The Trial Court erred in finding the meaning of the word “structure” in Kenner Resolution B-15147, Plaintiffs Exhibit P-21, included Plaintiffs driveway, sidewalks and fence, without considering the entire record.
3. The Trial Court erred in disallowing Plaintiffs Exhibit Proffers P-14, 14-A, 16, 17, 18, 20, 22, 25, 26, which clarify and determine the meaning of the word “structure.”
|s4. The Trial Court erred in disallowing Mr. Jim Wylie to testify as an expert in brick preservation and disallowing his testimony as to whether the antique bricks could be removed without damage.
5.The Trial Court erred in disallowing the testimony of Mr. Placide Jumon-ville regarding his knowledge of A. the superior construction of Plaintiffs driveway, sidewalks and fence, B. the inability to replace Plaintiffs antique bricks, and C. whether Plaintiffs antique bricks could be removed from this driveway and these sidewalks without damage and erred in disallowing Plaintiffs Exhibit Proffer 8, photographs of the driveway, sidewalk and fence construction and subsequent condition.
6. The Trial Court erred in denying Plaintiffs Petition for Permanent Injunction for lack of prima facie proof she would prevail on the merits.
7. The Trial Court erred in casting Plaintiff with all cost of these proceedings and in not casting Kenner with all cost of these proceedings.

The City of Kenner argues that this appeal should be dismissed for lack of jurisdiction because Mrs. Jumonville failed to timely file an appeal of the Kenner Resolution B-15147 that ordered the demolition of the property, as per LSA-R.S. 33:4763.

PROCEDURAL HISTORY

The record before this court does not contain the proceedings before the defendant governing body, the Kenner City Council. According to Mrs. Jumonville’s brief, on December 15, 2005, she and her husband appeared at a hearing before the Kenner City Council on council Resolution B-14987 where they were ordered to show cause why the building (a single family residence) at 3857 Martinique Avenue should not be declared a public nuisance. At that hearing, the home was declared to be a public nuisance and Mrs. Jumonville was given six months to repair the structure to make it habitable. Because apparently the structure was not repaired, on July 20, 2006, following a public hearing held on the Rsame day, the Kenner City Council adopted Resolution B-15147, ordering the demolition of “the premises” located at 3857 Martinique Avenue.

The record suggests that thereafter, proceedings appealing and contesting the demolition resolution were held in another jurisdiction (federal district court in New Orleans), as noted below.

On July 17, 2008, Mrs. Jumonville filed a “Petition for Temporary and Permanent Injunction and Damages” in the 24th Judicial District Court (the instant proceeding), requesting that an injunction issue preventing the City of Kenner from demolishing her brick driveway, brick sidewalk, and gradebeam fence on the Martinique property. She argued, essentially, that the scope of Resolution B-15147 did not include demolition of those structures, only the house.

In her petition filed in the instant proceeding, Mrs. Jumonville represented that on May 23, 2008, she received a letter from the City of Kenner, dated May 22, 2008, stating the City’s intent to demolish the property on June 11, 2008 in accordance with the aforementioned Resolution B-15147. Mrs. Jumonville requested information about the demolition from the City of Kenner. The City of Kenner responded by letter on June 3, 2008, with a list of documents available to Mrs. Jumonville regarding the demolition, which she apparently retrieved since some of those documents are attached to her petition in this case. The home was in fact demolished on June 11, 2008, but not the sidewalks, driveway, or fence, because a question arose as to whether they were included within the scope of Resolution B-15147.

The trial court granted a preliminary injunction on July 30, 2008, maintaining the status quo pending resolution of an action Mrs. Jumonville had Ufiled on July 31, 2006 against the City of Kenner in federal district court that was still pending at that time. Thereafter, in the instant proceeding, the City of Kenner filed a Motion to Re-Set Hearing on May 8, 2009, noting that the federal suit had concluded.

Neither the City of Kenner nor Hamp’s Construction, the other defendant, answered Mrs. Jumonville’s petition filed in the instant proceeding, although the City of Kenner made an appearance in the suit by said filing of its Motion to Re-Set Hearing. On June 17, 2009, Mrs. Jumon-ville filed a “First Amending and Supplemental Petition” in the instant proceeding, seeking damages for the demolition of her house and for damage' to the driveway, sidewalks, fence, ornamental plants and shrubbery, and loss of her stacked antique bricks. The amending .and supplemental petition likewise went unanswered.

The trial court conducted a hearing on the merits of the permanent injunction on July 7, 2009, but did not allow any evidence regarding alleged damages arising from the demolition of the house. The trial court issued a judgment on July 13, 2009, finding that Mrs. Jumonville did not show that she would prevail on the merits, thus denying both the petition for temporary and permanent injunction and the supplemental petition for damages. Mrs. Jumonville filed a timely motion for a sus-pensive appeal of the trial court’s July 13, 2009 judgment.

JURISDICTIONAL NOTE

The City of Kenner asks that this appeal be dismissed for lack of jurisdiction, citing Smith v. City of Minden, 622 So.2d 1206 (La.App. 2 Cir.1993).

|fiWe find that this court has jurisdiction of this appeal. The judgment rendered by the trial court on July 13, 2009 is a judgment relating to a preliminary or final injunction. An appeal may be taken as of right from such a judgment, within the proper time delays. LSA-C.C.P. art. 3612.

We find, however, that the trial court did not have subject matter jurisdiction to entertain the claims asserted in Mrs. Ju-monville’s petition filed on July 17, 2008 because such petition was not timely filed, as set forth below, and, as such, the trial court’s denial of the petition and supplement petition was correct, but for the following different reasons.

LSA-R.S. 33:4761 et seq. grant a municipality the power to condemn buildings which are in a dilapidated and dangerous condition that endanger the public welfare. These statutes also provide various procedural protections and substantive restraints before a municipality can condemn a building without compensation. Before condemning the building, the municipality must give the owner sufficient notice and a hearing to satisfy governmental responsibility to accord due process of law. LSA-R.S. 33:4762. After proper notice and hearing, if the governing body finds that the buildings are in a dangerous and dilapidated condition that endangers the public welfare, it may order condemnation or allow the owner the option to correct the dangerous conditions. LSA-R.S. 33:4763. The decision of the governing body may be appealed to the district court for a trial de novo within 5 days of the decision. LSA-R.S. 33:4763-4764. When the decision is appealed by the owner to the district court, the burden is on the governing body to sustain its action with sufficient evidence. LSA-R.S. 33:4764.

LSA-R.S. 33:4763 provides that:

A. After the hearing, if, in the opinion of the parish or municipal governing authority the facts justify it, an order shall be entered condemning the building and ordering that it be demolished or 17removed within a certain delay. If repairs will correct the dilapidated, dangerous, or unsafe condition, the parish or municipal governing authority may grant the owner the option of making such repairs, but in such a case the general nature or extent of the repairs to be made, the time thereof, and the defects to be corrected shall be specified in the decision of the governing body.
B. The decision and order of the parish or municipal governing authority shall be in writing and shall be final unless appealed from within five days as hereinafter provided. (Emphasis added.)

That appeal, a suit against the municipality, shall be filed by the owner in the district court. LSA-R.S. 33:4764. Mrs. Jumonville’s petition in this suit was filed on July 17, 2008, almost two years after the date of the City of Kenner’s Resolution B-15147, and was thus untimely.

In Smith v. City of Minden, supra, the court confronted a very similar factual scenario. The City Council of Minden conducted a hearing on October 7, 1991 after which Mr. Smith claimed he was left with the impression that he would be allowed to repair his buildings; however, the Council issued a condemnation order in October of 1991 ordering the demolition of Mr. Smith’s building. On January 22, 1992, Smith received a notice that his time delays to accomplish demolition had elapsed and the city would remove the building at his expense on February 3, 1992. On January 31, 1992, Smith filed suit in the district court seeking an injunction to restrain the city from demolishing the structure. The City filed an exception to the petition for injunction, citing LSA-R.S. 33:4763, which was granted and plaintiffs suit was dismissed.

In City of Minden, the court of appeal noted that:

Thus, after an alleged improper condemnation by the governing authority, it is incumbent upon the owner of the structure to timely institute an appeal. Indeed, as with other appeals, the timeliness of such an appeal from governmental administrative determinations is jurisdictional in nature, and once the delays have run the decision becomes final, (citations omitted)

Even more applicable to the case sub judice, a municipality’s condemnation becomes final and absolute upon expiration of the Isdelay provided by law, and the owner of a condemned building cannot thereafter appeal to the district court. See City of Alexandria v. Wilks, 18 So.2d 341 (La.App. 2d Cir.1944), interpreting the ten-day time period for appeals found in Act 175 of 1910, the predecessor legislation to current LSA-R.S. 33:4761 et seq. Indeed, if a petition for judicial scrutiny is not filed timely, a subsequently reviewing court may even notice ex proprio motu that jurisdiction lacked for adjudication of the matter. Emphasis added (citations omitted).

In the instant matter, our review discloses that the governing authority’s order of condemnation issued, at the latest, on October 28, 1991, and that Smith failed to appeal that decision until January 31, 1992. Five days having clearly elapsed before the January date, the decision to condemn had obviously become final. LSA-R.S. 33:4763; City of Alexandria, supra. Thus, while couching its decision in terms of prescription, the district court correctly declined to review the condemnation and order of demolition.

Id. at 1208.

The court in City of Minden characterized the petition for injunctive relief in the nature of an appeal of the substance of the demolition order, and found the request for judicial scrutiny of the demolition order untimely.

In her reply brief, Mrs. Jumonville disagreed with the City of Kenner’s position on jurisdiction, arguing that “where a Judgment is ambiguous, the five day rule to appeal can not begin to run.”

Mrs. Jumonville offers no legal support for her position that aggrieved parties can avoid the running of appellate delays by declaring a judgment ambiguous. Indeed, the statute in question, LSA-R.S. 33:4763, contains no “ambiguity” exception to the running of appellate delays. Mrs. Jumon-ville’s delays in this case clearly run from the date of the Resolution, which date was definitive and unambiguous.

Accordingly, for the above reasons, we find that the trial court was correct in denying the petition for injunction and the supplemental petition for damages, \ 3though not for the reasons expressed by the trial court, as set forth above. Appellant’s remaining assignments of error thus become moot.

CONCLUSION

For the reasons stated above, we affirm the trial court’s judgment denying appellant’s petition for a permanent injunction and her amended petition for damages. Costs of this appeal are taxed to appellant.

AFFIRMED.

      . Although Mrs. Jumonville and her husband did not attend the public hearing on July 20, 2006, she proffered that hearing’s transcript at the hearing in the case sub judice on July 7, 2009. This record does not contain a transcript of the hearing Mrs. Jumonville did attend before the City Council on December 15, 2005.

      . Civil Action No. 06-4022, United States District Court, Eastern District of Louisiana.

      . The record reflects that the merits of the federal suit had been decided by summary judgment in the defendants' favor.

      . In her reply brief, Mrs. Jumonville appears to assert a nullity action regarding the City of Kenner's Resolution B-15147 under LSA-C.C.P. art. 2004. An action for nullity may not, however, be instituted in or assigned as error in a reply brief. URCA-Rule 2-12.6.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Robert WILLIAMS.
    No. 10-KA-51.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 27, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2The Jefferson Parish District Attorney filed a bill of information on April 8, 2008, charging defendant, Robert Williams, with possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1. At the February 20, 2009 arraignment, defendant pled not guilty. Following the disposition of some pre-trial motions, the matter proceeded to trial on September 15 and 16, 2009. At the conclusion of the proceedings, the twelve-person jury found defendant guilty as charged. On September 25, 2009, the trial court sentenced defendant to imprisonment at hard labor for twelve years without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

On February 23, 2008, at approximately 1:48 a.m., Deputy David Chaplain, a fifteen-year veteran of the Jefferson Parish Sheriffs Office, was dispatched to Starrett and Jefferson Highway in reference to a possible fight. As he approached this high crime, high narcotics area, Deputy Chaplain observed a black female, later identified as April Curtis, leaning into the passenger side window of a white |struck. Thinking that a hand-to-hand drug transaction might be occurring, Deputy Chaplain illuminated the truck with his spotlight. When he did so, Curtis exited the window, and the truck quickly fled the area. Curtis started walking at a brisk pace, continually looking over her shoulder at Deputy Chaplain who was in a marked police unit and dressed in full uniform. She then started jogging toward a black Pontiac Grand Prix that was parked a couple of houses away from the white truck.

Noticing that the Pontiac’s brake lights were on and were then turned off, the officer shined his spotlight on the Grand Prix. At that time, a black male, later identified as defendant, exited the driver’s side of the vehicle and began running fast toward a nearby carport. When the officer saw this, he exited his car and pursued defendant on foot. Defendant tried to scale a fence, but Deputy Chaplain was able to apprehend him and handcuff him for officer safety.

At that same time, Curtis was trying to get into the passenger side of the Pontiac, but the door was apparently locked and would not open. Deputy Chaplain asked Curtis to come over by him, and she did so reluctantly. As the deputy then patted down defendant for weapons, Curtis walked back to the Pontiac and tried to open the door, but was unable to do so. Deputy Chaplain asked her to come back over to him again, and she complied. He also asked her to sit on the ground; however, she refused to do so, saying that she had not done anything wrong. According to the officer, Curtis was hostile and belligerent, and she and defendant were very nervous.

Deputy Chaplain told Curtis he was going to handcuff her, but she walked to the car. He followed her. As they approached the car, Deputy Chaplain looked through the driver’s side window with a flashlight and saw the butt of a gun wedged between the seats. It was later learned that that gun was fully loaded, and 14there was extra ammunition on the passenger seat. Deputy Chaplain also saw one bag of green vegetable matter and a small baggie of off-white, rock-like objects that appeared to be crack cocaine.

Afterward, he attempted to handcuff Curtis; however, as he was trying to do so, she turned and struck him in the neck. A brief struggle ensued, but the deputy was able to handcuff her. Deputy Chaplain walked Curtis back to the carport and advised her and defendant that they were under arrest. He patted them down and located a set of car keys to the Pontiac in defendant’s front pants pocket. The officers subsequently checked their computer and found that defendant was the registered owner of the Pontiac.

At trial, defendant admitted that the Pontiac was registered in his name; however, he claimed that a friend, with whom he shared the vehicle, had used the car that day. Further, defendant claimed that he was outside the car when the officer approached and did not run from the officer. Defendant denied putting the gun in the car. He stated that he first learned that the drugs and gun were in the car when the officer opened the door.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assigned error, defendant challenges the trial court’s denial of his motion to suppress the evidence. On February 26, 2009, defendant filed a motion to suppress contending that the evidence sought to be used against him was illegally and unlawfully obtained and should be suppressed. On July 23, 2009, a hearing was held on the motion. At the hearing, Deputy Chaplain testified about the circumstances surrounding defendant’s stop and the subsequent seizure of the evidence. His testimony at the suppression hearing was almost identical to his [stestimony at trial as set forth in the statement of the facts and, therefore, will not be reiterated herein. After considering the evidence presented and the arguments of counsel, the trial judge denied defendant’s motion to suppress without providing reasons. Defendant now challenges this ruling.

On appeal, defendant first contends that he was arrested without probable cause when he was handcuffed. He next asserts that, assuming this was only an investigatory stop, the police lacked reasonable suspicion to make that stop. Finally, he argues that, even if there was enough reasonable suspicion to conduct the stop, the handcuffing was unwarranted. The State responds that reasonable suspicion existed for the stop, and that handcuffing defendant was a detention for safety and did not rise to the level of an arrest.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Addison, 05-878 (La.App. 5 Cir. 12/27/05), 920 So.2d 884, 890, writ denied, 06-1087 (La.11/9/06), 941 So.2d 36. If evidence is derived from an unreasonable search or seizure, the proper remedy is to exclude the evidence from trial. State v. Boss, 04-457 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703(D). The trial court’s denial of a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. To determine whether the trial court’s denial of a motion to suppress is correct, the appellate court may consider the evidence adduced at the suppression hearing as well as the evidence presented at trial. State v. Addison, 920 So.2d at 890.

| fiIn considering defendant’s arguments, we will first address the issue of whether the officer had reasonable suspicion to conduct an investigatory stop.

It is well established that a police officer may conduct a brief investigatory stop when the officer has a reasonable articulable suspicion of criminal activity. LSA-C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Reasonable suspicion is something less than probable cause to arrest. Rather, it requires that officers have sufficient knowledge of the facts and circumstances to justify an infringement of an individual’s right to be free of government interference. State v. Massey, 03-1166 (La.App. 5 Cir. 1/27/04), 866 So.2d 965, 968.

The facts upon which an officer bases an investigatory stop should be evaluated in light of the circumstances surrounding the incident. A reviewing court must take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. State v. Burns, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1076.

An officer’s mere unparticular-ized suspicion or hunch of criminal activity is insufficient to establish reasonable grounds to stop a person. State v. Barney, 97-777 (La.App. 5 Cir. 2/25/98), 708 So.2d 1205, 1207. Factors that may support reasonable suspicion for an investigatory stop include an officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidence of crimes. State v. Martin, 99-123 (La.App. 5 Cir. 6/1/99), 738 So.2d 98, 102. While an individual’s mere presence in a high crime area, standing alone, is insufficient to justify an investigatory stop, his presence in a high crime area coupled with nervousness, startled behavior, flight or suspicious actions upon the |7approach of the officers, gives rise to reasonable suspicion for an investigatory stop. State v. Burns, 877 So.2d at 1076.

In Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the United States Supreme Court held that an individual’s unprovoked flight through a high crime area in response to the approach of the police gave rise to reasonable suspicion for an investigatory stop. See also State v. Johnson, 01-2081(La.4/26/02), 815 So.2d 809, 811, where the Louisiana Supreme Court found reasonable suspicion based on the defendant’s, nervousness, the lateness of the hour, and the fact that defendant quickened his pace as the police approached in a marked unit in a high crime area. Likewise, in State v. Burns, 877 So.2d at 1077, this Court found that defendant’s unprovoked flight from the officers in a high crime area provided the requisite reasonable suspicion to justify the investigatory stop.

In the instant case, at 1:48 a.m., Deputy Chaplain observed a female leaning into the window of a truck in a high crime, high narcotics area. Based on his experience, the deputy thought that a hand-to-hand narcotics transaction was occurring. When he illuminated the truck with his spotlight, the truck quickly fled, and the female walked at a brisk pace, then jogged, toward a Pontiac parked nearby. She nervously looked over her shoulder at Deputy Chaplain as she was proceeding toward the Pontiac. The deputy noticed that the brake lights of the Pontiac were on, and then they turned off. When he shined his spotlight at the Pontiac, defendant exited the driver’s seat of the vehicle and ran underneath a nearby carport.

Considering the totality of the circumstances, including the high crime nature of the area^ the lateness of the hour, the possible drug transaction between the female and the individual in the truck, the female’s flight toward the Pontiac, Rand defendant’s flight away from the Pontiac, we find that the officer had reasonable suspicion to conduct an investigatory stop of defendant.

Having found reasonable suspicion for the investigatory stop, the next issue to be addressed is whether the subsequent handcuffing of defendant was warranted, and whether the handcuffing elevated the encounter from an investigatory stop to an arrest.

In State v. Morton, 08-164 (La.App. 5 Cir. 7/29/08), 993 So.2d 651, 657, this Court discussed the law regarding when the use of handcuffs escalates a Terry stop into a de facto arrest requiring probable cause:

Inherent in the right of police to conduct a brief investigatory detention is also the right to use reasonable force to effectuate the detention. There is no question that the use of handcuffs incrementally increases the degree of force that is used in detaining an individual. However, arrest-like features such as the use of drawn weapons and handcuffs may, but do not invariably, render the seizure a de facto arrest. Therefore, when the State seeks to prove that an investigatory detention involving the use of handcuffs did not exceed the limits of a Terry stop, the State must show some specific fact or circumstance that could have supported a reasonable belief that the use of restraints was necessary to carry out the legitimáte purpose of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm. If the added intrusion is not warranted under particular circumstances, a Terry stop may escalate into a de facto arrest requiring probable cause to render it valid.

In the instant case, the record indicates that after defendant exited the Pontiac, he ran underneath a carport and tried to scale a fence. Deputy Chaplain, who was apparently alone at the time, then ran after defendant and was able to apprehend and handcuff him. Deputy Chaplain testified that he handcuffed defendant for officer safety. Since police officers should not be required to take unnecessary risks in performing their duties, they are authorized to take such steps as are reasonably necessary to protect their safety and to maintain the status quo during the course of a Terry stop. State v. Morton, 993 So.2d at 657. Considering the totality of the circumstances, we find that the deputy was justified in |9handcuffing defendant as a safety precaution in order to effectuate the Terry stop; those actions did not rise to the level of an arrest.

Having determined that the officer lawfully stopped and handcuffed defendant, we further find that the officer was thereafter justified in seizing the evidence from the vehicle. In the instant case, the record reflects that while Deputy Chaplain was dealing with defendant, he observed April Curtis walk to the Pontiac several times and try to open the door, even though he told her to come back by him. When she refused to sit down as directed, the officer told her that he was going to handcuff her. Nonetheless, she proceeded to walk to the car, at which point Deputy Chaplain followed her. As the officer approached the car, he shined his flashlight into the driver’s side window and observed the butt of a gun wedged between the seats. He also saw a bag of green vegetable matter on the floorboard of the driver’s side of the vehicle, along with a small baggie of off-white, rock-like objects that appeared to be crack cocaine. After seeing the marijuana, cocaine, and gun in the vehicle, the officer had sufficient probable cause to believe the vehicle contained contraband so as to justify a warrantless search of the vehicle under the automobile exception. See State v. Joseph, 02-717 (La.App. 5 Cir. 6/27/03), 850 So.2d 1049, writ denied, 04-2404 (La.6/17/05), 904 So.2d 686.

Based on the foregoing discussion, we find that the trial judge did not err in denying defendant’s motion to suppress evidence. The arguments raised by defendant in this assigned error are without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assigned error, defendant challenges the trial court’s admission of evidence of other crimes. Prior to trial, the State filed a notice of intent seeking to introduce evidence that at the same time defendant was in possession of a firearm, he was also in possession of marijuana and counterfeit cocaine. In this | innotice, the State indicated that, pursuant to LSA-C.E. art. 404 B(l), it would introduce the evidence for the purpose of proving motive, intent, plan, absence of accident, and as conduct constituting an integral part of the act or transaction that was the subject of this proceeding. After a hearing, the trial judge ruled that the evidence was admissible as res gestae, and further it related to motive and intent. The prosecutor then informed the court that, in connection with this ruling, he was going to call Detective Sergeant Joe Williams as an expert at trial to testify that guns were commonly used in the distribution of drugs.

Defendant now argues that this other crimes evidence, including the testimony of the expert, was improperly admitted at trial and that his conviction should be reversed. Defendant contends that this evidence was unduly prejudicial and served no purpose other than to depict him as a drug dealer. The State responds that the marijuana was admissible as res gestae evidence, since the marijuana possession was part of defendant’s act of illegally possessing a firearm.

Generally, evidence of other crimes or bad acts committed by a criminal defendant is not admissible at trial. LSA-C.E. art. 404(B)(1); State v. Prieur, 277 So.2d 126, 128 (La.1973). However, when evidence of other crimes tends to prove a material issue and has independent relevance other than to show that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to this rule. State v. Dauzart, 02-1187 (La.App. 5 Cir. 3/25/03), 844 So.2d 159, 165. Such evidence is allowed to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding to such an extent that the State could not accurately present its case without reference to the prior bad act. |n LSA-C.E. art. 404(B)(1); State v. Lawson, 08-123 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 525.

One of the factors enumerated in the article must be at issue, have some independent relevance, or be an element of the crime charged, and the probative value of the extraneous evidence must outweigh its prejudicial effect. The defendant bears the burden to show that he was prejudiced by the admission of the other crimes evidence. Absent an abuse of discretion, a trial court’s ruling on the admissibility of evidence pursuant to LSA-C.E. art. 404(B)(1) will not be disturbed. State v. Lawson, 1 So.3d at 525-526.

Evidence of other crimes, wrongs, or acts may be introduced when it is independently relevant or when it relates to conduct, formerly referred to as res gestae, that constitutes an integral part of the act or transaction that is the subject of the present proceeding. In State v. Taylor, 01-1638 (La.1/14/03), 838 So.2d 729, 741-42, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004), the Louisiana Supreme Court discussed the admissibility of other crimes evidence categorized as res gestae:

Res gestae events constituting other crimes are deemed admissible because they are so nearly connected to the charged offense that the state could not accurately present its case without reference to them. A close proximity in time and location is required between the charged offense and the other crimes evidence “to insure that ‘the purpose served by admission of other crimes evidence is not to depict defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.’” State v. Colomb, 98-2813, p. 3 (La.10/1/99), 747 So.2d 1074, 1076 (quoting State v. Haarala, 398 So.2d 1093, 1098 (La.1981)). The res gestae doctrine in Louisiana is broad and includes not only spontaneous utterances and declarations made before or after the commission of the crime, but also testimony of witnesses and police officers pertaining to what they heard or observed during or after the commission of the crime if a continuous chain of events is evident under the circumstances. State v. Huizar, 414 So.2d 741, 748 (La.1982); State v. Kimble, 407 So.2d 693, 698 (La.1981). In addition, as this court recently observed, integral act (res gestae) evidence in Louisiana incorporates a rule of narrative completeness | ^without which the state’s case would lose its “narrative momentum and cohesiveness, “with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.’ ” Colomb, 747 So.2d at 1076 (quoting Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)).

In a case similar to the instant one, State v. Colomb, 98-2813 (La.10/1/99), 747 So.2d 1074, 1075 (per curiam), the Louisiana Supreme Court found that evidence of the defendant’s marijuana possession contemporaneous with the police discovery of the firearm in his truck provided not only narrative completeness to a case which began as a narcotics stop, but also formed an integral part of the context facts in which jurors evaluated the state’s case for the defendant’s exercise of dominion and control over the weapon. The supreme court noted that the State had presented additional opinion testimony from the police that defendant had paraphernalia associated with drug trafficking and that guns and drugs went “hand in hand.” It stated that jurors need not have credited any of that testimony, however, to conclude for themselves that the officers’ disputed testimony about defendant’s spontaneous admission he possessed his wife’s gun for his own protection appeared fully consistent with the undisputed circumstances of the case that the police had stopped the defendant in a high crime area in possession of his own drug stash. The supreme court thought it clear that evidence of defendant’s marijuana possession invited jurors to draw the necessary inferences for their verdict not on the basis of his bad character, otherwise revealed by evidence of his prior convictions for the illegal discharge of a firearm, issuing worthless checks, and receiving stolen property, but on the basis of his contemporaneous conduct and statements accompanying the officers’ discovery of the handgun in his wife’s van.

In the instant case, the narcotics possession was part of a continuing chain of events as the deputy observed the marijuana, counterfeit cocaine, and gun | ^simultaneously in plain view inside defendant’s vehicle. As in Colomb, the evidence of defendant’s narcotics possession contemporaneous with the police discovery of the firearm not only provided a narrative completeness to a case which began as a possible narcotics stop, but also formed an integral part of the context facts in which the jurors evaluated the State’s case to determine whether defendant exercised dominion and control over the weapon. With regard to the expert testimony regarding the packaging and sale of drugs and their association with guns, we note that similar testimony was presented at trial in State v. Colomb, 747 So.2d at 1076.

Based on the foregoing discussion, we find no error in the trial court’s admission of the other crimes evidence or in the admission of the expert testimony. Accordingly, this assigned error is without merit.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent in accordance with 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). Our review reveals a discrepancy in the commitment and transcript regarding the trial court’s advisal of the prescriptive period for filing post-conviction relief. Although the commitment reflects defendant was properly advised of the prescriptive period for filing post-conviction relief, the transcript reflects an incomplete advisal. The transcript indicates that the trial court advised defendant that he had “two years to seek post-conviction relief.” The failure to advise a defendant that “the prescriptive period runs from the time his conviction and sentence become final” is an incomplete advisory. State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598. In accord with State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272, and State v. Davenport, 08-463, (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473, we advise defendant by this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after his judgment of conviction and sentence have become final under the provisions of LSA-C.Cr.P. art. 914 or 922.

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . At trial, the parties stipulated that defendant previously pled guilty to possession of cocaine.

      . At trial, the State and the defense stipulated that the green vegetable matter was submitted for analysis at the crime lab, with the result being that the substance was marijuana. The other substance was apparently counterfeit cocaine and was referred to throughout the trial as "bunk.”


author: McDonald, J.

text:
    Tina FORD v. SODEXHO, INC.
    No. 2010 CA 0182.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 2, 2010.
    Joseph J. Weigand, Jr., Houma, LA, for Plaintiff/Appellee, Tina Ford.
    Philip J. Borne, Scott R. Samuel, New Orleans, LA, for Defendant/Appellant, So-dexho, Inc.
    Before PARRO, KUHN, AND McDonald, jj.
   McDonald, J.

|2The plaintiff, Tina Ford, worked as a dining room attendant for Sodexho, Inc. (Sodexho) in Thibodaux. On February 27, 2004, while Ms. Ford was at work, standing on a ladder and lifting a bucket of ice, she injured her back. Ms. Ford filed a disputed claim for compensation on January 24, 2008, asserting that there was a dispute over her wage benefits, medical bills, and a medical procedure. In its answer, Sodexho asserted that Ms. Ford had received all the benefits to which she was entitled.

On February 6, 2009, the matter went to trial. Thereafter, the workers’ compensation judge (WCJ) ruled, authorizing Ms. Ford’s back surgery, awarding supplemental earnings benefits (SEBs) for some time periods, and awarding Ms. Ford $2,000.00 in penalties and $5,000.00 in attorney fees for Sodexho’s termination of indemnity benefits when Ms. Ford was entitled to receive SEBs.

Sodexho appealed that judgment, asserting that the WCJ erred in finding that back surgery was reasonable and medically necessary; erred in finding that Ms. Ford was entitled to SEBs for certain time periods after she returned to work for Sodexho in January of 2006; erred in finding that Sodexho was arbitrary and capricious in not paying for Ms. Ford’s SEBs after her return to work; and erred in awarding Ms. Ford penalties and attorney fees. Ms. Ford answered the appeal, asserting that the WCJ erred in failing to find that she was entitled to SEBs during the time period that she was enrolled in college; and, further, requesting attorney fees for the appeal.

A review of the record shows extensive reasons for judgment by the WCJ. Regarding the need for back surgery, there was a disagreement among doctors as to whether back surgery was needed. Dr. A. Delmar Walker, Jr., an orthopedist, | c,recommended weight reduction and exercise. Dr. Michael S. Haydel, a pain management specialist, treated Ms. Ford with steroid injections and referred her to Dr. Michael A. LaSalle, an orthopedist, for surgical consideration. Dr. LaSalle recommended weight loss and exercise, and thought surgery would not be beneficial. Dr. Chris Cenac, Jr., an orthopedist, recommended a microdiscectomy and described it as the least invasive type of surgery that could be done. Because of the disagreement among doctors, the WCJ appointed an independent medical examiner, Dr. James C. Butler, an orthopedist. Dr. Butler questioned whether the surgery would provide Ms. Ford with relief, and recommended conservative treatment instead of surgery. However, as noted by the WCJ, Ms. Ford had been undergoing conservative treatment for five years without much improvement. We conclude it was not clearly wrong for the WCJ to choose Dr. Cenac’s opinion over that of other doctors.

Regarding the SEBs, the WCJ gave an exhaustive analysis and computation of why SEBs were awarded for the time periods that they were given. After a review of the record, we find no manifest error in that determination. Further, regarding the award of penalties and attorney fees to Ms. Ford, we find no manifest error in that determination by the WCJ. Ms. Ford’s request for additional attorney fees is denied.

Thus, for the foregoing reasons, the judgment of the WCJ is affirmed. Costs are assessed against Sodexho. This opinion is issued in compliance with the Uniform Rules, Louisiana Courts of Appeal Rule, 2-16.2(A)(4), (5), (6), and (8).

AFFIRMED.

PARRO, J., concurs.

      . The parties stipulated that Ms. Ford’s average weekly wage on the day of the accident was $301.60.