author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Walter D. SOLOMON.
    No. 2011-KA-0236.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 23, 2011.
    Rehearing Denied Dec. 20, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF CASE

Walter Solomon, was indicted for: (1) second degree murder; (2) distribution of heroin; (3) possession with intent to distribute cocaine; (4) possession with intent to distribute heroin; (5) possession with intent to distribute marijuana; and (6 & 7) two counts of distribution of cocaine. Solomon pled not guilty at his arraignment and the trial court subsequently denied his motions to suppress the evidence and statement. Also, it denied his motion to sever offenses. Solomon sought review of that ruling with this Court, which denied his application stating that he would have an adequate remedy on appeal if convicted. State v. Solomon, unpub., 2010-1262 (La.App. 4 Cir. 10/1/10).

On his trial date Solomon appeared for trial but pled guilty as charged to counts two (2) through seven (7) pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). He was sentenced to: (1) fifty years at hard labor for distribution of heroin; (2) fifteen years at hard labor for possession with intent to distribute cocaine; (3) fifteen years at hard labor for possession with intent to ^distribute heroin; (4) fifteen years at hard labor for possession with intent to distribute marijuana; and (5) fifteen years for distribution of cocaine.

On that same day, Solomon pled guilty to being a double offender for distribution of heroin and he waived any sentencing delays. The trial court vacated the prior sentence for the distribution of heroin charge, and the defendant was sentenced to serve fifty years at hard labor as multiple offender, which is to run concurrently with all other sentences.

Less than two weeks later the trial court denied Solomon’s motion to correct an illegal sentence. Thereafter, this Court denied his writ application stating: “The guilty plea waiver of rights forms to the underlying offenses and the multiple bill show that the relator was informed and acknowledged that he would receive a 50-year sentence. The relator has offered no evidence or proof to the contrary, and therefore is not entitled to relief.” State v. Solomon, unpub., 2010-1568 (La.App. 4 Cir. 12/16/10).

STATEMENT OF FACT

On the date set for his trial defendant appeared and pled guilty as charged to distribution of heroin, possession with intent to distribute cocaine, possession with intent to distribute heroin, possession with intent to distribute marijuana, and two counts of distribution of cocaine, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). He admitted to being a multiple offender. He was sentenced to serve fifty years at hard labor for distribution of heroin as a double offender, to run concurrently with all other sentences.

| ^During the plea hearing, the trial court asked Solomon a series of standard questions regarding his plea. Pertinent to appeal, the trial court asked whether the defendant understood the sentencing range of a guilty verdict for distribution of heroin.

THE COURT: Do you understand the sentencing range on distribution of heroin is—
STATE: Five to fifty.
THE COURT: Five to fifty. Do you understand that?
DEFENDANT: I had a problem understanding how the time arrangements was going because I was told that I was going to be doing under the 572.
THE COURT: Right now, the only thing I want to do is make sure you understand what the sentencing range is on each of those charges.
DEFENDANT: Oh, okay. Yes.
COUNSEL FOR DEFENDANT: It’s five to fifty years.

After the defendant pleaded guilty to the multiple bill, the trial court vacated its previous sentence for distribution of heroin and sentenced the defendant as a double offender. Again the trial court sought to confirm that defendant understood his sentence as a double offender.

THE COURT: The Court will sentence you as follows: The Court will vacate the previous sentence dealing with [distribution of heroin] and sentence you pursuant to 529.1 as being a double offender. The Court sentences you to 50 years in the Department of Corrections with credit for time served. This sentence is to run concurrent with any other sentences that you have. Do you understand your sentence?
DEFENDANT: Yes. It’s going to still be under 572, right?
THE COURT: Yes.

1 ¿ERRORS PATENT

A review of the record reveals no patent errors.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In his sole assignment of error, the defendant argues that he is entitled to withdraw his guilty plea because he did not knowingly and intelligently enter it thereby making it invalid. Specifically, he contends that he pled guilty, under the mistaken belief that the sentence was eligible for “good time” reduction, as provided by La. R.S. 15:571.3(B)(l)(a). In fact, the sentence was not eligible for reduction due to his prior cocaine conviction. See La. R.S. 15:571.3(C)(1). | ¡¡Defendant points out that during his plea hearing, he sought to confirm his eligibility for “good time” reduction when he asked whether his sentence was going to be “under 572” (a reference to Act. No. 572 of the 2006 Legislative session, which enacted La. R.S. 15:571.3(B)(l)(a)), and the trial court responded in the affirmative.

The validity of any guilty plea depends on the circumstances of the ease. State v. Filer, 2000-0073 (La.6/30/00), 762 So.2d 1080, per curiam. In determining the validity of agreements not to prosecute or of plea agreements, Louisiana courts generally refer to rules of contract law, while recognizing at the same time that a criminal defendant’s constitutional right to fairness may be broader than his or her right under contract law. State v. Louis, 94-0761, p. 7 (La.11/30/94), 645 So.2d 1144, 1148. The initial step under contract law is to determine whether a contract was formed in the first place through offer and acceptance. The party demanding performance of a contract has the burden of proving its existence. Id. at p. 10, 645 So.2d at 1149. It must also be determined whether the contract had a lawful cause or object, as contemplated by La. C.C. art. 1966. See, State v. Hines, 2007-313, p. 3 (La.App. 5 Cir. 11/27/07), 970 So.2d 707, 709.

It is well settled that a guilty plea is constitutionally infirm when a defendant is induced to enter that plea by a plea bargain or by what he justifiably believes was a plea bargain and that bargain is not kept. State v. Dixon, 449 So.2d 463, 464 (La.1984). There are two alternative remedies a for a breach of a plea bargain: (1) specific performance of the agreement; or (2) nullification or withdrawal of the | nplea. State v. Roberts, 2007-493, p. 6 (La.App. 5 Cir. 11/27/07), 973 So.2d 791, 794.

The record in this case does not definitively show that the defendant was promised “good time” eligibility as part of his plea agreement. The waiver of rights form and the commitment showed that the trial court instructed defendant that if he pled guilty as a double offender to the charges against him, he would be sentenced to fifty years at hard labor. The defendant indicated that he understood and accepted those terms, and the judge sentenced defendant accordingly.

Defendant cites the guilty plea transcript as proof that he pled guilty with the understanding that he would have “good time” eligibility. Although he appears to have referenced “[Act. No.] 572 [of the 2006 Legislative session]” twice during his plea hearing, the transcript alone presents no proof that he would not have pled guilty but for the promise of “good time” eligibility. Even assuming that the transcript did contain some evidence that Solomon entered his guilty plea under the misunderstanding that he would receive “good time” eligibility, that premise would not be a “lawful cause” (as contemplated by La. C.C. art. 1966), because the trial court did not have the authority to authorize “good time” eligibility for him in the first place. See, State v. Mitchell, 2008-0629, p. 12 (La.App. 5 Cir. 1/13/09), 7 So.3d 744, 752; State v. Hartshorn, 2009-0047, p. 13 (La.App. 5 Cir. 11/10/09), 25 So.3d 172, 180. Indeed, the trial court, with certain exceptions that are inapplicable, here has no role in determining eligibility for diminution of sentence. The statute governing such “good time” credit, La. R.S. 15:571.3, is directed exclusively to the Louisiana Department of Corrections. Mitchell, 2008-0629, p. 12, 7 So.3d at 752; Hartshorn, 2009-0047, p. 13, 25 So.3d at 181. Therefore, even if the guilty plea transcript contained some evidence of a promise of “good time” 17eligibility in return for his guilty plea, that promise would have been unlawful on its face.

Defendant cites State v. Temple, 2000-2183 (La.App. 4 Cir. 5/16/01), 789 So.2d 639, in support of his position that he be allowed to withdraw his guilty plea. His reliance on Temple, however, is misguided. Temple involved a defendant’s ability to obtain immediate release from prison upon the successful completion of a “boot camp” program. The record clearly established that Temple’s attorney incorrectly induced him to plead guilty to the charges against him, under the mistaken belief that by completing a “boot camp” program while incarcerated, his sentence would be lessened. The record further established that the trial court misunderstood the manner in which completion of a “boot camp” program would affect a sentence as well. As such, Temple is not binding precedent here as it involved an entirely different set of facts and law.

This assignment has no merit.

CONCLUSION

Accordingly, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . On the trial date, the State nolle prosequied the charge second degree murder.

      . In his motion to correct an illegal sentence, Solomon argued that he did not understand the consequences of his guilty pleas because he was led to believe by counsel that he would receive a sentence of fifteen years on all counts and not a sentence of fifty years on all counts.

      . La. R.S. 15:571.3(B)(1)(a) provides, in pertinent part:
      Unless otherwise prohibited, every inmate in the custody of the department who has been convicted of a felony, except an inmate convicted a second time of a crime of violence as defined by [La.] R.S. 14:2(B), and sentenced to imprisonment for a stated number of years or months, may earn, in lieu of incentive wages, a diminution of sentence by good behavior and performance of work or self-improvement activities, or both, to be known as “good time”. Those inmates serving life sentences will be credited with good time earned which will be applied toward diminution of their sentences at such time as the life sentences might be commuted to a specific number of years. The secretary shall establish regulations for awarding and recording of good time and shall determine when good time has been earned toward diminution of sentence. The amount of diminution of sentence allowed under the provisions of this Section shall be at the rate of thirty-five days for every thirty days in actual custody served on the imposed sentence, including time spent in custody with good behavior prior to sentencing for the particular sentence imposed as authorized by the provisions of [Louisiana] Code of Criminal Procedure Article 880
      La. R.S. 15:571.3(C)(1) provides:
      C. Diminution of sentence shall not be allowed an inmate in the custody of the [Louisiana] Department of Public Safety and Corrections if any of the following apply: (1) The inmate has been sentenced as an habitual offender under the Habitual Offender Law as set forth in [La.] R.S. 15:529.1.

      . La. C.C. art. 1966 provides:
      An obligation cannot exist without a lawful cause.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge. LOVE, J.,

license: Public Domain

text:
    ABERTA, INC. v. Honorable Dale N. ATKINS, Ex-Officio Recorder of Mortgages and Registrar of Conveyances, Business Loan Center, LLC and BLX Capital, LLC.
    No. 2010-CA-1523.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 23, 2011.
    Rehearing Denied Dec. 7, 2011.

      Robert G. Harvey, Sr., Law Office of Robert G. Harvey, Sr., APLC, Justin A. Zitler, New Orleans, LA, for Plaintiff/Ap-pellee.
    F. Sherman Boughton, McGlinchey Stafford, PLLC, New Orleans, LA, for Defendants/Appellants, Business Loan Center, LLC, BLX Capital, LLC, and Ciena Capital.
    James M. Garner, Elwood F. Cahill, Jr., John T. Balhoff II, Ryan 0. Luminais, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., Stephen P. Schott, Baldwin Haspel Burke & Mayer, LLC, New Orleans, LA, for Intervenor/Appellant, Wagner World LLC.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   JAMES F. McKAY III, Judge.

hln this case, the defendants, Ciena Capital LLC, Business Loan Center, LLC and BLX Capital, and the intervenor, Wagner World, Inc., appeal the trial court’s granting of the plaintiffs, Aberta, Inc., writ of mandamus directing the Clerk of Court, the Honorable Dale N. Atkins, as the ex officio Recorder of Mortgages and Registrar of Conveyances for Orleans Parish, to cancel certain inscriptions on the plaintiffs property. For the following reasons, we affirm the trial court’s granting of the writ of mandamus.

FACTS AND PROCEDURAL HISTORY

On August 26, 2003, Stor-All Pontchartrain, L.L.C. sold the immovable property located at 4601 Chef Menteur Highway to Aberta, Inc. by act of cash sale. On the same day, Aberta sold the property to Wagner World LLC by cash sale. Both Aberta and Wagner World were companies controlled by Scott G. Wolfe, Sr. Wagner World, again on that same day, then executed a collateral mortgage and an assignment of leases pertaining to the property in favor of BLX Capital, LLC. | ^Wagner World, also on that same day, executed another collateral mortgage and an assignment of leases on the property in favor of Business Loan Center, LLC.

On August 27, 2003, the following documents were filed with the Orleans Parish Recorder of Mortgages and Custodian of Notarial Archives: the act of cash sale from Stor-All Pontchartrain to Aberta; the two collateral mortgages from Wagner World in favor of BLX Capital and Business Loan Center; and the two lease assignments from Wagner World in favor of BLX Capital and Business Loan Center. However, the cash sale deed from Aberta to Wagner World was not properly filed and indexed in the records of the notarial archives or in the conveyance records of Orleans Parish. On December 15, 2008, Mr. Wolfe executed a “Credit Sale of Movables” to FHH Properties, LLC, by which he conveyed “all of Seller’s right, title and interest” in certain movable properties, namely, Aberta.

On May 5, 2010, Aberta, now owned by FHH Properties, filed a petition for writ of mandamus, asserting that it is “the current fee simple title owner” of the property located at 4601 Chef Menteur Highway. In response to this action, on May 17, 2010, Aberta, represented by Mr. Wolfe, and Wagner World executed a quitclaim deed “effective as of August 26, 2003.” This document also stated that the original sale was inadvertently not recorded. The defendants in Aberta’s petition for writ of mandamus were the Honorable Dale N. Atkins in her official capacity, Business Loan Center, BLX Capital and Ciena Capital. On June 8, |s2010, Wagner World filed a petition for intervention pursuant to La. C.C.P. art. 1091(2) in order to preserve the mortgages it had granted. On June 25, 2010, the trial court issued its final judgment of mandamus and ordered that Aberta’s writs of mandamus be made peremptory and granted. It further ordered that the recorder cancel and release the mortgages and assignments of lease that Wagner World had granted in favor of BLX Capital and Business Loan Center but stayed its judgment pending Wagner World’s timely filing of a suspensive appeal. It is from this judgment that Wagner World, Business Loan Center, BLX Capital, and Ciena now appeal.

DISCUSSION

On appeal, the defendants, Business Loan Center, BLX Capital, and Ciena Capital, raise the following assignments of error: 1) the trial court erred in finding that Aberta had a right of action to file a mandamus lawsuit concerning the property or the Ciena mortgages; 2) the trial court erred by granting a writ of mandamus directed to the Clerk because the cancellation of the Ciena mortgages is not a ministerial or non-discretionary act; and 3) the trial court erred in relying on the public records doctrine when Aberta is not a third party. In addition, the intervenor, Wagner World, raises the following assignments of error: 1) the district court erred in ordering a writ of mandamus to cancel mortgages and assignments of lease granted by Wagner World, the owner of immovable property; 2) the district court erred in failing to recognize a contract of sale declaring Wagner World the |4owner of the immovable property and binding Aberta to that sale, even if the sale contract was not recorded in the public records; and 3) the district court erred in using a mandamus action to cancel the mortgages and assignments of lease when the propriety of the cancellation depended upon the exercise of discretion, upon the evaluation of evidence, and upon disputed facts. Despite these numerous assignments of error, the only real issue before this Court is whether a mandamus was an appropriate procedural vehicle in this particular situation.

Mandamus is a writ directing a public officer or a corporation or an officer thereof to perform any of the duties set forth in Articles 3863 and 3864. La. C.C.P. art. 3861. A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law, or to a former officer or his heirs to compel the delivery of the papers and effects of the office to his successor. La. C.C.P. art. 3863. Louisiana Code of Civil Procedure Article 3862 provides:

A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice; provided, however, that no court shall issue or cause to be issued a writ of mandamus to compel the expenditure of state funds by any state department, board or agency, or any officer, administrator or head thereof, or any officer of the state of Louisiana, in any suit or action involving the expenditure of public funds under any statute or law of this state, when the director of such department, board or agency, or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency or be in violation of the requirements placed upon the expenditure of such funds by the legislature.

La. C.C.P. art. 3862.

In mandamus proceedings against a public officer involving the performance of an official duty, nothing can be inquired into but the question of duty on the face |fiof the statute and the ministerial character of the duty he is charged to perform. King v. Bourgeois, 2004-1106 (La.App. 1 Cir. 5/6/05), 903 So.2d 549. A mandamus is a proper remedy for compelling a recorder of mortgages to cancel or erase an illegal or unauthorized inscription. Realsco, Inc. v. Green Acres Civic Ass’n, 169 So.2d 570 (La.App. 4 Cir.1964).

In the instant case, the property on Chef Menteur Highway was sold by Stor-All to Aberta. This sale was recorded. Mr. Wolfe later sold Aberta to FHH Properties. FHH Properties believed that it became the owner of the property on Chef Menteur Highway with its purchase of Aberta. However, Wagner World and the other defendants contend that the property on Chef Menteur Highway had been sold previously by Aberta to Wagner World. The problem is that this sale was not recorded. Wagner World then encumbered the property with leases and collateral mortgages. Aberta filed the petition for writ of mandamus to have these encumbrances removed.

According to the version of Louisiana Civil Code Article 2442 that was in effect at the time of the purported sale of the property to Wagner World, this sale would not be effective as to third parties unless it was recorded. FHH Properties was a third party when it purchased Aber-ta. Based on the face of the documents that were recorded, Aberta was entitled to the issuance of the wxit of mandamus to have the encumbrances removed. If Wagner World and the other defendants have an action against Aberta, they must file a petitory action for declaratory judgment. A writ of mandamus has a limited purpose and as we have said based on what was there it was properly granted.

^CONCLUSION

For the above and foregoing reasons, we affirm the trial court’s granting of the plaintiffs writ of mandamus. The trial court’s stay of its judgment is also lifted.

AFFIRMED

LOVE, J., concurs.

LOVE, J.,

concurs.

Ill respectfully concur in the result.

      . Mr. Wolfe did this because he was the owner of Aberta at the time of the alleged sale.

      . Ciena is the alleged successor to both Business Loan Center and BLX Capital.


author: CLARENCE E. McMANUS, Judge.

text:
    Alexis MARRERO and Liset Marrero v. FLUOR DANIELS d/b/a Fluor Daniel Services Corporation, Inc., Fluor Enterprises, Inc., Fluor Facility & Plant Services, Inc., Junius Braggs and Walter Castro.
    No. 11-CA-235.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Dominick F. Impastato, III, Marc L. Frischhertz, Frischhertz & Associates, Attorneys at Law, New Orleans, LA, D. Steven Wanko, Jr., The Wanko Law Firm, Covington, LA, for PlaintifflAppellant.
    Marcus Brown, Cory R. Cahn, Gary M. Carter, Jr., Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   CLARENCE E. McMANUS, Judge.

|2This is an appeal by Alexis Marrero, plaintiff-appellant, from a judgment in a jury trial dismissing his claims against Fluor Maintenance Services, Inc., defendant-appellee, in this workplace injury lawsuit. For the following reasons, we affirm the judgment.

The facts are as follows. At the time of the accident at issue here, Marrero was employed by The Cajun Company, Inc. (Cajun). Cajun was operating under a contract with Entergy Louisiana, LLC (Entergy), and was doing scaffolding work inside and outside of a boiler at Entergy’s Nine Mile Point generating facility. Fluor Maintenance Services, Inc. (Fluor) was operating under a separate contract with En-tergy, and was doing welding and other repairs on the same boiler. The boiler is a vessel about 60 feet square and over one hundred feet high. It has grate floors in the interior at various levels, and the work at issue here was being done on the fifth level. There are catwalks on the exterior of the vessel at the various levels which are attached to the outer metal skin with struts coming out from the vessel several feet apart. The inside edges of the catwalks are about 16 inches from the outer skin of the boiler, and evidence showed that this gap was necessary because if the catwalk decking had been installed closer to the boiler, the expansion and ^contraction of the boiler’s outer walls when it was turned on and off would have deformed these walks.

There are also access panels along the walls of the boiler at the various levels. These panels consist of a small door which is bolted over an access opening in the boiler wall, and the opening is about 16 inches square. The lower edge of the access openings is about 3 feet above the exterior catwalks, and similarly about 3 feet above the interior decks. In order to allow the crews to enter the boiler, Cajun built small wooden platforms level with the lower edge of an east side access opening both on the outside and on the inside of the boiler. To enter, a worker would lie down on the outside platform, drag himself through the opening, and end up lying down on the inside platform. From there, he would then climb down onto the interior decking.

The interior of the boiler at issue is classified by OSHA as a “confined space” for which special precautions must be taken for work in such areas. Entergy, Cajun, and Fluor all had in effect safety procedures which complied with the OSHA rules. Testimony by representatives of all three companies showed that a key component of these procedures is to have one entry and exit point which is monitored by a “hole watch,” a person who sits at the access point and signs everyone in and out. They explained that all workers were instructed to enter and exit only through that designated hole, except in an emergency. This procedure is designed to identify all workers who go in, and to make sure that all of them have come out. The east access opening, where the scaffolds had been built, was the designated entry and exit point. The “hole watch” was an employee of Cajun.

On January 13, 2005, two Fluor workers, Junius Braggs and Walter Castro, asked their supervisor if they could open another access panel on the west side of the boiler, and this was agreed to. Mary Lancaster, Entergy’s plant manager, | testified that Fluor had Entergy’s permission to open this panel. The purpose of this second opening was to give access for the welding leads, torch hoses and lighting extensions. Allen Bowers, Cajun’s regional manager, stated that placing the hoses and leads through the east access opening where the workers were entering and exiting would in fact have been a violation of OSHA standards.

On that same day, January 13, the “hole watch” log showed that Marrero had entered the boiler at 3:50 PM and had exited at 5:15 PM. On January 14, Marrero entered at the access point at 11:23 AM. At about 11:45 AM, the crews started to break for lunch and were exiting through the entry-exit point. Marrero, on the other hand, decided to leave by way of the west opening through which the welding leads, torch lines, and extensions had been run. His testimony was that although he did not remember clearly, he thought that he had grabbed some overhead pipes and without looking out to see what was on the outside, he went through the opening feet first. He fell through the 16-inch space between the outer catwalk and the wall of the boiler and came to rest some 30 feet down on an I-beam.

Marrero injured his foot, ankle and spine in the fall. He received workers’ compensation benefits through his employer, Cajun, and its insurer. He brought the present action against Fluor, alleging that it and its employees, Junius Braggs and Walter Castro, were negligent in causing the accident. After trial on the merits, the jury found that Fluor was not negligent, and judgment was entered accordingly. This appeal followed.

Because most of the issues presented here for review involve factual matters, we first note that the standard of review of such determinations is whether they are manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880 (La.1993). In order to reverse a trier of fact’s determinations, the | r,appellate court must first find that a reasonable factual basis does not exist for the findings, and further it must conclude that the findings are clearly wrong. Id. When there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

In the present case, Marrero testified that he had seen other workers using the west opening to exit the boiler. He also said that Braggs and Castro, as well as a third unidentified worker, told him it was proper to use the west opening. Although Braggs testified in deposition that he had exited from the west opening, it was not clear whether he was referring to using the hole while running the welding leads and torch hoses, or if he had used it to exit at other times. The “hole watch” log for January 13 shows that Braggs entered and exited through the east opening three times on that day, and also that he entered there again at 4:59 PM, but shows no exit time. On January 14 Braggs entered at 7:40 AM and exited at 9:40 AM. Castro denied ever using the west hole to exit the boiler and the logs for the two days bear this out. He also said that he never saw Braggs do so. Both men stated that they never told Marrero that it was alright to exit on the west. The “hole watch” logs also show that all workers entering on January 13 and 14, had gone in and out of the entry-exit hole, except for Braggs on one occasion, Marrero on the day he fell, and one other worker for whom the “hole watch’s” note for January 14, says he was accounted for but did not sign out because of the accident.

Marrero also testified that he was never told by Cajun that he could only exit from the same hole that he had entered. Valley Martinez, Jr., Cajun’s safety manager, testified to the contrary. He said that all Cajun employees, including Marrero, are trained in confined space procedures which mandate that workers only enter and exit through the designated opening where the “hole watch” is stationed. Although it was shown that the “confined spaces” portion of Cajun’s [ ^safety manual which discussed the entry point did not specifically mention exiting through the same point, it is evident that the whole purpose of the “hole watch” procedure is to insure that a list is kept of all workers going into the space so that it will be known whether all of them have come out. If, indeed, workers could exit willy-nilly from any other point, there would be no reason to institute the procedure in the first place.

Marrero also attempted to show that Fluor was negligent in not putting warning tape across the west opening to ensure that no workers went out that way. The testimony of Martinez was again to the effect that he knew of no OSHA, Entergy, Fluor or Cajun rule that would require using warning tape on an opening of the sort at issue here. What regulations there were pertained to places where a worker could fall through a floor or other surface. Martinez also said that it was impossible that a worker could accidentally fall through a 16 by 16 inch hole three feet above the floor. Finally, he noted that there was no way that a worker could have confused the east entry-exit point, with its scaffolding on both sides, with the west hole which had neither.

Considering the above evidence, the jury could reasonably have found that neither Fluor nor Braggs and Castro were negligent in Marrero’s fall. Although Marrero testified that Braggs and Castro told him he could exit from the west, they both denied this. Marrero said he saw other welders going out to the west, and Braggs said he used the west exit several times. However, the “hole watch” logs show that the only time Braggs might have done so was once late on January 13, the day the west hole was opened and the cables were run through it. Castro said he never saw Braggs exiting through the west hole. The “hole watch” logs belie that workers were using the west hole routinely as asserted by Marrero. As to the use of warning tape, the testimony from representatives of Fluor, Cajun and |7Entergy was uniform that neither they nor OSHA had any rule requiring the use of tape over a hole that was impossible to accidentally fall through. It is clear that the jury concluded that Marrero violated his employer’s policy for only using the entry-exit point where the “hole watch” was stationed, and that he caused his own accident by exiting through a hole feet first without ascertaining what was on the other side. This being a reasonable view of the evidence, we may not set aside the jury’s determination on this point.

The second issue concerns the trial judge granting a directed verdict at the close of plaintiffs case in favor of Fluor as to its liability under La.C.C. arts. 2317 and 2317.1. Under La.C.C.P. art. 1810, a directed verdict may be granted at the close of the opposing party’s evidence. Such a verdict is appropriate in jury trials where the court, after considering all evidence in a light most favorable to the movant’s opponent, concludes that the facts and inferences point so overwhelmingly in favor of granting the verdict that reasonable jurors could not arrive at a contrary result. Reed v. Columbia/HCA Information Systems, Inc., 00-1884 (La. App. 5 Cir. 4/11/01), 786 So.2d 142, writ denied, 2001-1384 (La.6/22/01), 794 So.2d 796.

Here, plaintiff argued in the district court, and again urges here, that in opening the west access hole, Fluor acquired garde over the boiler door and outside catwalks. He relies on Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002, for the proposition that because the existence of garde is a fact intensive inquiry, the trial judge erred in taking that determination from the jury. While he is correct as to the fact intensive nature of determining garde, he is incorrect in asserting that it is not subject to a well-pleaded motion for a directed verdict. As stated in Reed v. Columbia/HCA Information Systems, Inc., supra, the | «question is whether the facts and inferences point so strongly in favor of granting the motion that a jury finding to the contrary would be unreasonable.

Here, in her oral reasons for judgment, the trial judge stated that if any defect existed in the boiler, it was the 16 inch gap between the skin of the boiler and the catwalk through which Marrero fell. Because there was no evidence of record to show that Fluor had ever done anything which would have given it custody or control over the positioning of that catwalk on the exterior of the boiler, it could not have acquired garde over that structure. Implicit in this determination is the conclusion that had the jury found otherwise, that would have been an unreasonable determination. We agree. We therefore reject plaintiffs argument in this regard, and affirm the directed verdict;

For the foregoing reasons, the determination by the jury that Fluor was not negligent in causing plaintiffs injuries, as well as the district court’s directed verdict on the La.C.C. arts. 2317 and 2317.1 issues, are hereby affirmed.

AFFIRMED


author: WALTER J. ROTHSCHILD, Judge.

text:
    BANK OF COLORADO v. Douglas M. SCHMIDT.
    No. 11-CA-325.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Juston M. O’Brien, Jamie D. Seymour, Attorneys at Law, Baton Rouge, LA, Rudy J. Cerone, Heather A. Lasalle, Attorneys at Law, New Orleans, LA, for Plaintiff/Ap-pellee.
    Peter R. Borstell, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

[^Defendant, Douglas Schmidt, appeals the trial court’s November 23, 2010 judgment, denying his Motion and Order to Nullify Judgment dated October 6, 2010. For the following reasons, we affirm.

STATEMENT OF THE CASE

On September 21, 2010, Bank of Colorado filed an Ex Parte Petition to Have Foreign Judgment Made Executory. In this motion, Bank of Colorado stated that it is the judgment creditor of Mr. Schmidt by virtue of a judgment rendered on June 24, 2010, by the District Court of Eagle County, Colorado. In its petition, Bank of Colorado asked “to have the Colorado judgment made executory and given full efficacy, the same as a judgment of this Court, for all purposes,” in accordance with the provisions of Louisiana Revised Statutes 13:4241, et seq. In support of its petition, Bank of Colorado submitted a copy of the Colorado | .judgment, a verification document certifying the authenticity of the Colorado judgment, and the affidavit of Troy Meissner, Assistant Vice President of Credit/Special Assets for Bank of Colorado, setting forth the address of Bank of Colorado and the last known address of Mr. Schmidt.

On October 6, 2010, the trial court rendered a judgment recognizing the Colorado judgment “as a judgment of this Court,” in favor of Bank of Colorado and against Douglas Schmidt, in the amount of $118,919.70, together with interest of $24,262 per day from March 24, 2010, until paid, plus collection costs and attorney fees of $2,767.56, as well as additional collection costs and reasonable attorney fees incurred by Bank of Colorado. On October 20, 2010, Mr. Schmidt filed a Motion and Order to Nullify Judgment dated October 6, 2010, asserting that the trial court’s judgment was a nullity, because the copy of the Colorado judgment sought to be made executory was unsigned and undated, and the affidavit of the Deputy Clerk of the District Court of Eagle County certifying the judgment was unsigned. In his motion, Mr. Schmidt further argued that the affidavit of Mr. Meissner does not state that Bank of Colorado timely gave notice of these proceedings to Mr. Schmidt and the Jefferson Parish Clerk of Court did not file proof of mailing of notice to Mr. Schmidt, as required by LSA-R.S. 13:4243(B).

On October 21, 2010, Bank of Colorado filed the affidavit of Lori Graff, in which she indicated that she mailed copies of the Ex Parte Petition to Have Foreign Judgment Made Executory, with exhibits, and a copy of the proposed judgment, to Mr. Schmidt at two addresses by certified mail. Ms. Graff attached a copy of the delivery confirmation indicating that Mr. Schmidt received the letter on October 14, 2010. On November 12, 2010, Bank of Colorado filed an Opposition to Motion and Order to Nullify Judgment dated October 6, 2010.

14This matter came before the trial court for hearing on November 23, 2010. After a hearing, the trial judge denied the Motion to Nullify the Judgment dated October 6, 2010. Mr. Schmidt appeals.

LAW AND DISCUSSION

On appeal, Mr. Schmidt contends that the trial court improperly denied his Motion and Order to Nullify Judgment dated October 6, 2010. First, Mr. Schmidt contends that the trial court improperly relied on an unsigned copy of the Colorado judgment and the unsigned verification of judgment when rendering the October 6, 2010 judgment. Second, he argues that Bank of Colorado did not follow the provisions of the Louisiana Enforcement of Foreign Judgments Act, as set forth in LSA-R.S. 13:4241 et seq., which are required to make the Colorado judgment executory in Louisiana.

LSA-R.S. 13:4242 of the Enforcement of Foreign Judgments Act provides as follows:

A copy of any foreign judgment authenticated in accordance with an act of congress or the statutes of this state may be annexed to and filed with an ex parte petition complying with Code of Civil Procedure Article 891 and praying that the judgment be made executory in a court of this state. The foreign judgment shall be treated in the same manner as a judgment of a court of this state. It shall have the same effect and be subject to the same procedures, and defenses, for reopening, vacating, or staying as a judgment of a court of this state and may be enforced in the same manner.

On September 21, 2010, Bank of Colorado filed its Ex Parte Petition to Have Foreign Judgment Made Executory, and attached a copy of the Colorado judgment sought to be made executory, along with a verification document. The judgment contains an electronic signature box at the top right corner, containing the trial judge’s signature and printed name above the date of the document, June | a24, 2010. Along with the judgment, Bank of Colorado submitted a verification document certifying the authenticity of the judgment. The September 9, 2010 verification document originally filed by Bank of Colorado was signed by the Colorado trial judge, but it was missing a signature from the Deputy Clerk of the District Court of Eagle County of the State of Colorado, Patty Seifers. However, on October 4, 2010, Bank of Colorado filed a new verification, dated September 30, 2010, which contains all of the necessary signatures. Therefore, Mr. Schmidt’s argument that the trial judge relied on unsigned documents when rendering the October 6, 2010 judgment is unpersuasive, because the signed documents were provided to the trial judge before he signed the October 6, 2010 judgment.

To the extent Mr. Schmidt contends that the electronic signature on the Colorado judgment does not constitute a valid signature, we disagree. We find that the judgment, along with the verification document, clearly meet the authentication requirements of LSA-R.S. 13:4242 for making a foreign judgment executory.

Based on our review of the record before us, we find no error in the trial judge’s determination that the Colorado judgment is in proper form, “worthy of full faith and credit in the State of Louisiana,” and in compliance with the requirements for making a foreign judgment executory in Louisiana. Accordingly, Mr. Schmidt’s first argument is without merit.

In his second argument on appeal, Mr. Schmidt contends that he did not receive proper notice of these proceedings, pursuant to LSA-R.S. 13:4243. LSA-R.S. 13:4243 provides the following:

A.At the time of the filing of the petition and foreign judgment, the judgment creditor shall file with the court an affidavit setting forth the name and last known address of the judgment debtor and the judgment creditor.
B. Promptly upon the filing of the petition, the foreign judgment, and the affidavit, the clerk shall send a notice by certified mail to the judgment debtor at the address given and shall make a note of the | ¿mailing in the record. The notice shall include the name and address of the judgment creditor and his attorney, if any. In addition, the judgment creditor may mail a notice of the filing to the judgment debtor and may file proof of mailing with the clerk. Failure to mail notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.
C. No execution or other process for enforcement of a foreign judgment filed hereunder shall issue until thirty days after the mailing of the notice of the filing of the foreign judgment.

Mr. Schmidt claims that although the affidavit of Tony Meissner, as a representative of Bank of Colorado, provides verification of Mr. Schmidt’s last known address, the affidavit does not state that Bank of Colorado served Mr. Schmidt with notice of filing, as required by LSA-R.S. 13:4243(B). He argues that Bank of Colorado did not send him a copy of the petition and relevant exhibits until October 13, 2010, and the Clerk of Court for Jefferson Parish did not mail the required notice to Mr. Schmidt until October 20, 2010. Thus, according to Mr. Schmidt, he was not “promptly” notified of the filing of the petition, as required by LSA.-R.S. 13:4243(B). He claims that because he was not provided with proper notice, he was deprived of his right to dispute Bank of Colorado’s petition before the judgment was signed on October 6, 2010.

The Enforcement of Foreign Judgments Act in Louisiana does not require that notice be given to a judgment debtor prior to the trial court making a foreign judgment executory. Rather, LSA-R.S. 13:4242 provides that a petition to make a foreign judgment executory may be filed “ex parte,” along with an authenticated copy of the foreign judgment.

LSA-R.S. 13:4243(B) provides that the Clerk of Court shall send notice to a judgment debtor “[pjromptly” upon the filing of the petition, foreign judgment, and affidavit. LSA-R.S. 13:4243(B) also states that the judgment creditor may mail a notice of the filing to the judgment debtor and may file proof of mailing with the 17clerk. This statute also provides that failure of the clerk to mail notice of filing shall not affect enforcement proceedings if proof of mailing by the judgment creditor is provided. The language of LSA-R.S. 13:4242 and 13:4243(B) reveals that notice is not required to be given to the judgment debtor prior to making a judgment execu-tory. Rather, the notice requirements must be complied -with prior to enforcement of the judgment.

In Morgan Building and Spas, Inc. v. Cutrer, 97-0599 (La.App. 1 Cir. 4/8/98), 711 So.2d 777, 780, the First Circuit addressed this issue and stated that a court of this state may, ex parte, recognize a foreign judgment without receipt of notice to the judgment debtor. However, the Court noted that the judgment debtor must subsequently receive notice, pursuant to LSA-R.S. 13:4243(B), in order for the judgment to be enforceable.

Considering the record before us, along with the applicable law, we find no merit in Mr. Schmidt’s argument that the October 6, 2010 judgment is a nullity because he did not received proper notice under LSA-R.S. 13:4243. Accordingly, for the foregoing reasons, we find no error in the trial court’s denial of Mr. Schmidt’s Motion and Order to Nullify Judgment dated October 6, 2010.

Bank of Colorado filed an answer to appeal, asserting that Mr. Schmidt’s appeal is frivolous and that it is entitled to costs and attorney fees for responding to Mr. Schmidt’s frivolous appeal.

An appeal will be deemed frivolous, such as would justify the imposition of sanctions, if it does not present a substantial legal question or if it is obvious either that it was taken solely for delay or that the appealing party does not sincerely believe in the view of law that he advocates. Dowl v. Redi Care Home Health Association, 09-1300, 09-1301, p. 16 (La.App. 4 Cir. 2/3/10), 31 So.3d 596, 608. However, appeals are generally favored, and courts are often reluctant to award damages for frivolous appeals due to the possible negative effect it may have on the appellate process. Winston v. Flamingo Casino, 99-0209, pp. 12-13 (La.App. 4 Cir. 9/22/99), 746 So.2d 622, 629.

Although we agree with Bank of Colorado that Mr. Schmidt’s appeal does not have merit and his arguments are not persuasive, we cannot say that the appeal is wholly frivolous. Thus, Bank of Colorado’s request for damages for a frivolous appeal is denied.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment, denying Mr. Schmidt’s Motion and Order to Nullify Judgment Dated October 6, 2010. All costs of this appeal are to be paid by appellant, Douglas Schmidt.

AFFIRMED

      . The trial judge of Division B, Judge Regan, who signed the October 6, 2010 judgment, recused himself from this case on October 20, 2010. Accordingly, this matter was re-allotted to Division O, and heard by the judge of that division, Judge LaDart.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    OCHSNER CLINIC FOUNDATION v. Annabelle ARGUELLO.
    No. 11-CA-326.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      A. Robert McComiskey, John Henry Gniady, Attorneys at Law, Metairie, LA, for Plaintiff/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this suit on an open account, the plaintiff/appellant, Ochsner Clinic Foundation (“Ochsner Clinic”), appeals the trial court’s ruling dismissing its claim against the defendant/appellee, Ms. Annabelle Ar-guello. The trial court found that Ochsner Clinic failed to prove the accuracy of the bill. For the reasons that follow, we affirm.

Procedural Background

On December 2, 2008, Ochsner Clinic mailed Ms. Arguello a demand letter, certified return receipt requested, in which it stated that she was indebted to the clinic in the amount of $4,677.99. The demand letter was returned unclaimed on December 25, 2008. Thereafter, on April 29, 2009, Ochsner Clinic filed a “Suit on Open Account” against Ms. Arguello for $4,677.99 plus interest and attorney’s fees. Ms. Arguello answered the petition on June 16, 2009, asserting various exceptions as well as pleading “all affirmative defenses set forth in the Louisiana Code of Civil Procedure applicable herein.”

After several pretrial motions, the trial commenced on April 14, 2010, but neither Ms. Arguello nor her attorney were present. However, the trial .judge fallowed Ochsner Clinic’s witness, Mr. Richard Joynt, to testify. Mr. Joynt, the supervisor in the guarantor follow-up department at Ochsner Clinic, first testified about the authenticity of the bills. He then testified that the disputed amount of $4,677.99 had not been paid. The disputed amounts arose from two separate bills. The first bill, which included dates of service ranging from October 31, 2005 through July 9, 2007, was in the amount of $696.08. The second bill, which included dates of service ranging from September 11, 2007 through April 10, 2008, was in the amount of $3,981.91. Ochsner Clinic introduced check number 4028 into the record, which was a $435.50 check authorized by Ms. Arguello on September 28, 2007, and made payable to CSD Collection Specialists. Mr. Joynt testified that check 4028 was not in reference to the disputed bill, stating that CSD Collection Specialists was not a collection agency that Ochsner Clinic used. After Mr. Joynt’s testimony, the case was held open until April 16, 2010.

When the trial commenced on April 16th, Ms. Arguello testified that she had been an “Ochsner” patient for twelve years. She testified, however, that she was not indebted to “Ochsner” for $4,000 but rather owed closer to $2,000. She testified that she visited Ochsner Clinic on April 10, 2008 for a regular check-up but did not have any exams or tests performed that day. The documentary evidence, however, reflects that Ochsner Clinic performed both an MRI and kidney imaging that day and that it billed Ms. Arguello $1,244.00 for the MRI and $641.00 for the kidney imaging. Ms. Arguello disputed those charges at trial.

Ms. Arguello testified that on April 18, 2007, she paid “Ochsner” the amounts of $4,637.15 and $356.25. The record substantiates this testimony. The |4record reflects that check number 4002 was made payable to Ochsner Hospital on April 18, 2007, in the amount of $356.25. Alton Ochsner Medical Foundation endorsed the check “For Deposit Only.” In addition, check number 4003 was made payable to Ochsner Clinic on April 18, 2007, in the amount of $4,637.15. That check was endorsed “For Deposit Only Ochsner Clinic MC 3101.” Both checks appear to have been withdrawn from Ms. Arguello’s bank account on April 23, 2007.

At the conclusion of Ms. Arguello’s testimony, the trial judge noted that the documentary evidence was ambiguous. She then requested billing statements that preceded the dates shown on the documents introduced into evidence. She also requested additional testimony from an Ochsner Clinic employee who could explain the billing system. Court recessed, and the case was held open until June 22, 2010.

When the trial resumed, Mr. Joynt was recalled as a witness. He testified that checks 4002 and 4028 were not applied to the disputed bill. He further testified, however, that check 4003, in the amount of $4,637.15, was applied to the Ochsner Clinic account and that the amount sued for already took that payment into consideration. Mr. Joynt further testified that Ms. Arguello made a $500 Chase credit card payment on June 10, 2008, and that the outstanding balance of $4,677.99 already took into consideration that the $500 payment had been applied as well. Mr. Joynt clarified that he did not have personal knowledge about the accuracy of the fees. He confirmed, however, that the billing summaries were kept in the ordinary course of business.

At the conclusion of trial, the court took the matter under advisement and rendered its judgment on July 23, 2010, dismissing Ochsner Clinic’s claim. Ochsner Clinic appealed.

| ¿Assignments of Error

Ochsner Clinic contends that the trial court erred in failing to find that it established a prima facie case; by improperly permitting Ms. Arguello to testify regarding affirmative defenses which were not specifically plead; and by resolving conflicting testimony on the contested items in its billing summaries.

Discussion

First Assignment ofEn’or

In its first assignment of error, Ochsner Clinic contends that the trial court erred in failing to find that it established a prima facie case.

La. R.S. 9:2781, which sets forth the procedures for suits on open accounts, provides, in pertinent part,

[w]hen any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be> liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section.

In order to sustain an action on an open account, a plaintiff-creditor bears the burden of proving his demand by a preponderance of the evidence. Universal Health Services v. Lopez, 562 So.2d 1079, 1081 (La.App. 4 Cir.1990). In proving an open account, plaintiff must first prove the account by showing that it was kept in the course of business and by introducing supporting testimony as to its accuracy. General Electric Co. Inc. v. Louisiana Electrical Supply Co. Inc., 460 So.2d 34 (La.App. 1 Cir.1984). Once the plaintiff-creditor has established a prima facie case, the burden shifts to the debtor to prove the inaccuracy of the account or to prove that the debtor is entitled to certain credits. Id. (citation omitted).

In the present case, Ochsner Clinic met its initial burden by proving that the account was kept in the ordinary course of business and by introducing supporting | ^testimony as to its authenticity. Ochsner Clinic introduced two billing summaries which detailed the services Ms. Arguello received as well as the fees charged for those services. Though Mr. Joynt could not testify regarding the accuracy of the fees, his testimony confirmed the authenticity of the billing summaries, which as this Court stated in Sears, Roebuck and Co. v. Bennies, 03-1160, 03-1161, p. 8 (La.App. 5 Cir. 3/30/04), 870 So.2d 1080, 1085, is all that is required:

The witness laying the foundation for admissibility of business records need not have been the preparer of the records. ... Nothing in the Code of Evidence specifically requires either that the foundation witness be able to personally attest to the accuracy of the information contained in the documents.

Therefore, Mr. Joynt’s testimony was sufficient in helping Ochsner Clinic meet its initial burden in this case. Because Ochs-ner Clinic met that burden, the burden then shifted to Ms. Arguello to prove either the inaccuracy of the bill or that she was entitled to certain credits. Our review of the record reveals that Ms. Arguello successfully proved that the billing summaries were inaccurate.

In this case, the $4,637.15 check which Ms. Arguello made payable to Ochsner Clinic on April 18, 2007 was credited to her Ochsner Clinic account on April 20, 2007. The record reflects that those funds were then withdrawn from her bank account on April 23, 2007. Ochsner Clinic argues that this payment is irrelevant because it was made prior to the dates that she received service and therefore it could not have possibly been applied to the amount sued upon. We note, however, that the billing statement which reflects the $4,637.15 payment includes approximately 21 dates of service that precede the date that the check was applied. This, therefore, diminishes Ochsner Clinic’s claim that the payment could not have been for any of the amounts sued upon in this case. We also note that Mr. Joynt testified that Ms. 17Arguello remitted a $500 credit card payment and that it was applied to her account on June 10, 2008. Yet, the documents in evidence reflect “last payment dates” before the June 10th payment. The first billing statement indicates a last payment date of April 20, 2007; while the second billing statement indicates a last payment date of May 12, 2008. Mr. Joynt could not offer an explanation as to why the $500 payment was not reflected on either of the two documents but insisted that Ms. Arguello had been given credit for that payment.

The court of appeal may not set aside the trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Sears, supra, at 1084, cit ing, Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Furthermore, “where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id. We find that the discrepancy between the documentary evidence and Mr. Joynt’s testimony casts doubt on whether Ms. Ar-guello received proper credit for all payments she may have made. Therefore, we find no error in the trial court’s conclusion that Ochsner Clinic failed to establish, with sufficient evidence, the accuracy of the account.

Second Assignment of Error

In its second assignment of error, Ochsner Clinic contends that the trial court improperly permitted Ms. Arguello to testify as to affirmative defenses which were not pled in the answer. Ochsner Clinic contends that the admission of the $4,637.15 check and Ms. Arguello’s testimony regarding this payment should have been disallowed because she failed to specifically plead prior payment as an affirmative defense. As Ochsner Clinic points out in its brief, however, “the receipt of this payment |R[$4,637.15] is reflected on the statement showing a balance of $696.08,” which is the document it introduced into evidence.

The purpose of La. C.C.P. art. 1005 is to prevent surprise by giving the plaintiff fair notice of the nature of the defense, thereby preventing interjection of unexpected issues. Perfection Metal & Supply Co. v. Independent Supply of N.O. Inc., 97-800, p. 8 (La.App. 5 Cir. 1/14/98), 707 So.2d 86, 90. Because Ochsner Clinic already had knowledge of this payment, which was reflected in its own exhibit, allowing Ms. Arguello’s testimony about the payment and admitting the check into evidence was harmless error.

Third Assignment of Error

In its final assignment of error, Ochsner Clinic contends that the trial court erred in resolving conflicting testimony between it and Ms. Arguello on the contested items of the billing summaries, specifically arguing that Ms. Arguello failed to establish that she was entitled to any credits. As stated in the first assignment of error, once the plaintiff-creditor has met its initial burden, the burden shifts to the defendant to prove either the inaccuracy of the bill or that she was entitled to certain credits. General Electric, supra (emphasis added). We have already determined that Ms. Arguello proved the inaccuracy of the bill. Therefore, she was not required to also prove that she was entitled to any credit.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED

      . Richard Joynt had previously come to court prepared to testify but the trial did not commence. The trial judge allowed Mr. Joynt to testify in order to avoid any more inconvenience to him. Ms. Arguello’s attorney’s partner happened to be in court and sat in on the proceeding.

      . Ms. Arguello was a patient at Ochsner Clinic and Ochsner Hospital; however, she did not distinguish the two during her testimony.


text:
    STATE of Louisiana v. Joseph A. WILLIAMS.
    No. 11-KA-79.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Michael Morales, Assistant District Attorneys, Gretna, LA, for PlaintiffiAppellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

|2Pefendant, Joseph A. Williams, was charged by bill of information with one count of Computer-Aided Solicitation of a Minor, a violation of LSA-R.S. 14:81.3. Defendant pled not guilty. On August 26, 2010, defendant waived his right to a trial by jury and proceeded to a judge trial on that same date. At the close of trial, defendant was found to be guilty as charged. On September 3, 2010, defendant was sentenced to two years at hard labor without benefit of parole, probation, or suspension of sentence. The court additionally informed defendant about sex offender registration requirements, pursuant to LSA-R.S. 15:543, and ordered that defendant comply with these requirements. Defendant appeals.

FACTS

Sergeant Robert McGraw testified that he is employed by the Kenner Police Department in the Criminal Investigations Division, where part of his duties include conducting online sting operations where he poses as a minor female. One |sof Sergeant McGraw’s online identities is “ashton_thibodeauxl4”. Sergeant McGraw explained the online operations are conducted by posing as minor or juvenile females, entering a chat room, in this case a Louisiana chat room, and waiting to be contacted.

At trial, the State presented a copy of the chat logs between “indianjoe-195751” and “ashton_thibodeauxl4”. At 5:17 p.m. on February 12, 2009, “indianjoe-195751” initiated contact with “Ashton” via an instant message, “indianjoe-195751” asked Ashton about her age, sex and location, to which the response was that she was a fourteen-year-old female in Kenner, “indi-anjoe-195751” then identified himself as a 51-year-old male. Following this initial chat, “indianjoe-195751” left Ashton an offline message that said “hello” on March 12, 2009.

On April 17, 2009, Ashton was contacted by someone using the Yahoo I.D. of “far-merboy_1957”. On April 21, 2009, Ashton was again contacted by “indianjoe-195751”. During the chat, “indianjoe-195751” revealed that he was also “farmer-boy_1957”. “indianjoe-195751” asked Ashton about her breast size and if he could “work on” her breasts. Sergeant McGraw posted that “indianjoe-195751” could meet Ashton. On May 1, 2009, “indi-anjoe-195751” contacted Ashton at 4:52 p.m. On May 8, 2009, “farmerboy_1957” contacted Ashton again at 2:09 p.m. On May 18, 2009, “farmerboy_1957” contacted Ashton at 5:38 p.m.

Sergeant McGraw recounted that on May 27, 2009, “indianjoe-195751” again contacted Ashton. He asked Ashton where her mother was, and whether she |4was working on the following day. “indi-anjoe-195751” then told Ashton that he had to go to New Orleans in the morning. An arrangement was made to meet at the McDonald’s on Veterans Boulevard in Kenner. He asked Ashton not to wear a bra or panties to the meeting. He asked Ashton to bring a girlfriend with her, and asked if Ashton “will get kinky.” He also asked Ashton if she would perform oral sex on him, and whether she prefers vaginal or anal intercourse. “indianjoe-195751” stated that he “will pop” Ashton’s “cherry.”

On May 28, 2009, at 7:20 a.m., Ashton sent “indianjoe-195751” four offline messages indicating the she was just waking up and could not wait to see him. Later that morning, Sergeant McGraw went to the pre-arranged location in Kenner and waited until 9:00 a.m., but defendant did not arrive. At 9:29 a.m., Sergeant McGraw sent “farmerboy_1957” a text message from Ashton that said “I’M SO MAD AT U” indicating that Ashton was disappointed that he did not show up for their meeting. “farmerboy_1957” responded in a message that he was down past the Sonic fast food restaurant, which was close to the McDonald’s. Sergeant McGraw relocated his team and saw a blue tractor trailer stopped in the bus turning lane in front of the Xerox Centre. Sergeant McGraw and other officers approached the track, and defendant was inside. At that time, defendant was asked to step out of the track and he was read his Miranda rights.

Defendant was told that he was under arrest for Computer-Aided Solicitation, at which time defendant responded that he was there to meet someone. Sergeant McGraw saw a laptop in defendant’s truck. Pictures of the truck introduced at trial showed a tractor-trailer with two front passenger seats and a sleeper cab in the back that contained a mattress.

[sAfter being advised of his rights, defendant indicated that he understood them and he agreed to speak to Sergeant McGraw. According to Sergeant McGraw, defendant admitted that he used the online IDs of “indianjoe” and “farmerboy.” He also admitted that he was using the computer in his truck to access the internet and chat under those IDs, but he denied that he would have had sex with Ashton. On cross-examination, Sergeant McGraw affirmed that on the date defendant was arrested, there was nothing in the chat log which showed that defendant had intent to engage in sexual conduct. However, defendant had indicated this intent in prior chats.

Officer Edward Rohde testified that he does computer forensic work for the Ken-ner Police Department. He detailed the procedures he generally uses to conduct a forensic review of a computer. Officer Rohde testified that he did not find any images of “ashton_thibodeaux,” child pornography, or “any other contraband” on defendant’s computer. Officer Rohde found a Yahoo profile in defendant’s computer for “indianjoe-195751”, which contained an “ashton_thibodeauxl4” folder. Inside that folder, Officer Rohde found chat archive files, or “chat logs.”

Lieutenant Richard Broussard of the Calcasieu Parish Sheriffs Office testified that part of his duties included engaging in online stings while posing as a minor child. In this case, he used the undercover identity “misty_breaux2001” on a Yahoo account. Lieutenant Broussard explained that “Misty Breaux” was a fictitious 14-year-old girl from the Lake Charles area. Once the account was set up, Lieutenant Broussard used the profile to enter into a Louisiana chat room and “sit dormant,” while waiting for another chat room user to make contact.

On May 27, 2009, an individual with the Yahoo user I.D. “indianjoe-195751” initiated a chat with the “Misty Breaux” profile. A transcript of the chat Llog which took place between “indianjoe-195751” and “Misty Breaux” was entered into evidence. “indianjoe-195751” asked “Misty” what her age, sex, and location were. The response was that “Misty” was a 15-year-old female from the Moss Bluff area, “indian-joe-195751” identified himself as a 51-year-old male from Houma. During the chat, “indianjoe-195751” indicated to “Misty” that he wanted to meet her.

Lieutenant Broussard testified that on May 28, 2009, he was contacted by the Kenner Police Department, at which time he sent them a copy of the chat log between “indianjoe-195751” and “Misty.” On cross examination, Lieutenant Brous-sard admitted that nothing in the chat log of May 27, 2009, indicated that “indianjoe-195751” wanted to engage in sexual activity with “Misty”.

LAW AND DISCUSSION

On appeal, defendant asserts that the evidence was insufficient to support the conviction. Specifically, defendant contends that the State failed to prove that he had the specific intent to solicit sex from a minor. Defendant also contends that the trial court erred in failing to find that he had proved a defense of entrapment.

The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier-of-fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132, 1134. Where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” LSA-R.S. 15:438; State v. Draughn, 05-1825, p. 7 (La.1/17/07), 950 So.2d 583, 592, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). This statutory test works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury. State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a conclusion is drawn. State v. Chism, 436 So.2d 464, 469 (La.1983). The trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised, and the weight and effect to be given to each permissible inference. Id.

The law does not require the reviewing court to determine whether it believes the witnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. State v. Spears, 05-0964, p. 3 (La.4/4/06), 929 So.2d 1219, 1222; State v. Mussall, 523 So.2d 1305, 1309 (La.1988). Rather, the fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to guarantee the fundamental protections of due process of law. Spears, 05-0964 at 3, 929 So.2d at 1222-23.

Defendant was convicted of violating LSA-R.S. 14:81.3, which provides in relevant part:

A. (1) Computer-aided solicitation of a minor is committed when a person seventeen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of seventeen where there is an age difference of greater than two years, or a person reasonably believed to have not yet attained the age of seventeen and reasonably believed to be at least two years younger, for the purpose of or with the intent to persuade, induce, entice, or 1 scoerce the person to engage or participate in sexual conduct or a crime of violence as defined in R.S. 14:2(B), or with the intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of seventeen, or person reasonably believed to have not yet attained the age of seventeen.
D. For purposes of this Section, the following words have the following meanings:
(1) “Electronic textual communication” means a textual communication made through the use of a computer on-line service, Internet service, or any other means of electronic communication, including but not limited to a local bulletin board service, Internet chat room, electronic mail, or on-line messaging service.
(2) “Sexual conduct” means actual or simulated sexual intercourse, deviant sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, lewd exhibition of the genitals, or any lewd or lascivious act.

As discussed by the Third Circuit in State v. Suite, 09-150, p. 4 (La.App. 3 Cir. 10/7/09), 19 So.3d 640, 643:

The computer aided solicitation of a minor statute contemplates two scenarios in which a person can be in violation thereof. The first such scenario addresses the perpetrator’s conduct that intends to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct ... The second scenario envisions the perpetrator’s communication with the intent to engage or participate in sexual conduct in the presence of the young victim. In both cases, it is the communication and intent, not the end-resulting contact, that the statute is addressing.

In the present case, at the conclusion of trial, the judge made the following findings of fact:

THE COURT:
Okay. First of all, let me say that there is an abundance of language which would come within the sexual conduct provision of the statute. Just, it’s — just on 5/27 alone ... One of which it’s just interesting, because it’s actually mentioned in State versus Suire about the taking of virginity coming within the sexual conduct. That alone in, “Will pop your cherry. Promise to be nice. Okay I will. But if I pop it, then what?” which is certainly a sexual conduct— comes within sexual conduct.

Viewing the evidence in the light most favorable to the prosecution, the trial court could have found that the essential elements of LSA-R.S. 14:81.3 were |9proven beyond a reasonable doubt. The record indicates that defendant was born in 1957, which clearly makes him older than the 17-year-old age threshold indicated in the statute. The chat logs introduced by the State into evidence show defendant knowingly communicated through the use of electronic textual means with a person whom he reasonably believed to have not yet attained the age of seventeen. In fact, defendant admitted in his interview with Sergeant McGraw that he knew these communications with a 14-year-old girl were wrong.

Through the use of computer forensics and transcripts of the chat logs, and by defendant’s own admission, the Kenner Police Department was able to verify that defendant used two online screen aliases, “indianjoe-195751” and “farmerboy_1957”, to communicate with Ashton using his laptop. The chat logs show that defendant clearly intended to “persuade, induce, entice, or coerce” Ashton to engage in sexual activities with him, including sexual intercourse.

Defendant argues that the district court erred in failing to find that he was entrapped by the Kenner Police. Specifically, defendant asserts that he did not show up at the pre-arranged meeting with Ashton, and that he did not agree to a meeting until after police had contacted him via text. He concludes that the State failed to show that he had the specific intent to solicit sex from a minor.

On appeal, contentions of entrapment are reviewed according to the constitutional standard for testing the sufficiency of the evidence as set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Petta, 98-745, p. 7 (La.App. 5 Cir. 2/10/99), 729 So.2d 29, 32, writ denied, 99-0692 (La.9/3/99), 747 So.2d 533, cert. denied, 528 U.S. 1125, 120 S.Ct. 956, 145 L.Ed.2d 830 (2000). Entrapment is a defense that arises when a law enforcement official, or a person acting in cooperation with such an official for the purpose of obtaining evidence of a crime, originates the idea of the crime, and then induces |inthe person to engage in conduct constituting the offense when that person is not otherwise disposed to do so. State v. Brand, 520 So.2d 114, 117 (La.1988). However, it is not entrapment if the officers or agents have merely furnished a defendant who is predisposed to commit the crime the opportunity to do so. As stated by the Louisiana Supreme Court, “[i]n entrapment cases, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.” Id.

The first inquiry is whether the defendant proved by a preponderance of the evidence that he was induced by an agent of the government to commit the crime. If so, the next inquiry is whether the State adduced evidence of the defendant’s predisposition to commit the crime such that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have concluded that it was the defendant’s predisposition to commit the crime, rather than the State’s inducement that caused the defendant’s conduct. State v. Falcon, 06-798, p. 9 (La.App. 5 Cir. 3/13/07), 956 So.2d 650, 656.

In this case, the trial judge found the following with respect to defendant’s entrapment defense:

THE COURT:
Now, Entrapment. The defendant instituted the contact. It was not instituted by the State. Defendant instituted all the sexual talk. I think the question that Mr. Williams has raised is the intent, whether there was the intent to follow-through on it.
Well, we had a proceeding — I mean, a discussion to set up a time, a place, away from the family home, away from the possible mother. Set it up. He [defendant] actually went there, within a block-and-a-half of where it was. And then, when contacted, which I don’t believe the contact on the 28th was any kind of further inducement or entrapment by the State at all. There was a predisposition shown for the Defendant to participate, at least, in discussion of all these things, and he follows it up further by going to the area. I mean, his self-serving statement that “I wouldn’t have followed-through with it; if I would have seen her, I would have walked away. I would have — I would have left. If she would have walked up to the truck, I would | nhave left”. Which is, I think, in his statement. He’s a block-and-a-half away] and then, he could go. But when contacted, he says: “Walk down and meet me.”
I think the — that convinces me beyond a reasonable doubt that Mr. Williams is, in fact, guilty under the statute of Computer-Aided Solicitation of a Minor. I think that State has carried their burden.

Based on the testimony and evidence presented, we agree with the trial court that defendant did not prove by a preponderance of the evidence that he was induced by police to commit the crime of Computer-Aided Solicitation of a Minor. The testimony of Sergeant McGraw established that once the Ashton profile was posted online, McGraw waited to be contacted. It was defendant who first initiated contact with Ashton on February 12, 2009. The transcripts of the chat logs of May 1, 2009, and May 27, 2009, show that defendant wanted to meet Ashton. On the morning of his arrest, while he did not show up for the meeting he had initially arranged with Ashton, upon further contact he told Ashton to meet him a few blocks from where the initial meeting was supposed to take place only one-half hour later than the original meeting was scheduled. As noted by the Court in .Suire, supra, “it is the communication and intent, not the end-resulting contact, that the statute is addressing.” [Emphasis added]. Accordingly, because defendant did not show that he was induced by police to commit the crime at issue, defendant did not prove his defense of entrapment.

Because the record shows that the evidence was sufficient to support defendant’s conviction, this assignment of error is without merit.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). No errors requiring corrective action were noted.

h ¿DECREE

For the foregoing reasons, we affirm defendant’s conviction and sentence.

AFFIRMED

      . "Ashton” will refer to the online profile set up by Sergeant Robert McGraw.

      . The chat transcript of April 17, 2009 between "farmerboy_1957” and Ashton shows that "farmerboy_1957” was initially informed that Ashton was 14. After learning Ashton’s age, he asked her about her breast size, and whether she could send him pictures of herself.

      . The transcript of the May 1, 2009 chat shows that "indianjoe-195751” asked Ashton about the size of her breasts and buttocks, and if she had pubic hair. Ashton told "indi-anjoe-195751 ” that she was still only 14 years old.

      . The transcript of the May 18, 2009 chat shows that "farmerboy_1957” asked Ashton about her breast size, and indicated that he wanted to meet her soon. He asked Ashton whether she had ever received or performed oral sex, and then asked if Ashton would perform oral sex on him.

      . The transcript of the May 28, 2009 chat shows that "farmerboy_1957” told Ashton that he was in front of "Rault Resources” in a blue truck. Defendant had indicated in the chat log of May 27, 2009, that he drove an 18-wheeler.

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

      . On May 1, 2009, defendant wrote at 7:44 p.m. "u need to meet me soon”. On May 27, 2009, defendant wrote at 1:29 p.m. "how can I cum meet u.”


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Carlos D. FLEMING.
    No. 11-KA-135.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/App el-lee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Carlos D. Fleming, In Proper Person, Richwood, LA, Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

|2On December 6, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant, Carlos Fleming, with one count of simple burglary, a violation of LSA-R.S. 14:62. Defendant pled not guilty at arraignment. Thereafter, defendant filed various omnibus motions, including a Motion to Suppress Evidence, which was denied on June 19, 2008. On October 1, 2008, defendant withdrew his not guilty plea and pled guilty as charged. Defendant was sentenced to ten years imprisonment at hard labor to run concurrently with all other counts. Defendant was granted an out-of-time appeal on July 28, 2010. This appeal followed. Defendant’s appointed appellate counsel has filed a brief, asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel has ^requested permission to withdraw as counsel of record for defendant. For the following reasons, we affirm defendant’s conviction and sentence and permit appointed counsel to withdraw as counsel of record for defendant.

FACTS

The State provided the following recitation of facts upon defendant’s plea of guilty:

DISTRICT ATTORNEY:
As to Case Number 07-6852, if this matter would have gone to trial, the State would have proven beyond a reasonable doubt that on July 19, 2007, within Jefferson Parish, the Defendant committed simple burglary of Bad-deaux’s [sic] Grocery. Located at 1321 Ames Boulevard.

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, 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 permission to withdraw as counsel of record for defendant.

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 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). The Louisiana Supreme Court approved the procedure in State v. Jyles, 96-2669 at 2, 704 So.2d at 241.

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 could find no non-frivolous issues to raise on appeal. Counsel notes that defendant filed a pre-trial motion to suppress that was denied by the trial court, but, upon pleading guilty, defendant did not preserve his right to object to the rulings under State v. Crosby, 338 So.2d 584 (La.1976). Counsel indicates that |sthe plea form signed by defendant and the colloquy with the trial judge demonstrates that defendant was informed of and considered the rights he was waiving by pleading guilty, as well as the sentences that he would receive.

Appellate counsel has filed a motion to withdraw as attorney of record that states that she has mailed defendant a copy of her brief. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until May 1, 2011 to file a pro se supplemental brief. Defendant filed a supplemental brief on April 21, 2011.

The State filed a response to appellate counsel’s brief, noting that counsel has complied with Anders/Jyles and requesting 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. The true bill of information properly charged defendant. Also, as reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings, including his arraignment, guilty plea and sentencing.

Further, defendant pled guilty as charged. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. 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. 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 one felony count of simple burglary. On the waiver of rights form and during the colloquy with the trial court, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. On 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. Further, during the colloquy with the trial court, defendant indicated that he understood that he was waiving these rights. Defendant further indicated that he had not been forced, coerced^ or threatened to enter his guilty plea. He was also informed that his convictions could be used to enhance a penalty for any future conviction.

Defendant was advised that he faced maximum possible sentence of twelve years at hard labor. During the colloquy, defendant was told that he would be sentenced to ten years at hard labor. He was also advised that the State would not file a multiple offender bill of information and that the court would recommend the Blue Walters Drug Treatment program. By signing the waiver of rights form, defendant also indicated that he understood the sentence he would receive. Defendant’s sentence falls within the sentencing ranges set forth in the respective statute and does not present any non-frivolous issues for appeal.

17Because 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 an independent review of the record supports counsel’s assertion, defendant’s conviction and sentence are affirmed and appellate counsel’s motion to withdraw as attorney of record is granted.

PRO SE ASSIGNMENT OF ERROR

Defendant filed a supplemental brief, arguing that due to error patent, the conviction and/or sentence should be reversed. This Court routinely reviews the record for errors patent regardless of whether defendant makes such a request. The review reveals no errors patent that require correction in this case.

In' defendant’s pro se brief, in addition to requesting an error patent review, he appears to raise other issues. First, defendant appears to contend that the record does not support a factual basis for his conviction. However, a valid guilty plea waives the defendant’s right to question the merits of the State’s case. Defendant further appears to contest the trial court’s ruling on his Motion to Suppress; however, as previously noted, defendant did not preserve his right to object to the ruling under State v. Crosby, supra. Accordingly, these issues have no merit.

CONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are affirmed, and appointed counsel is permitted to withdraw as counsel of record for defendant.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . The record shows that defendant also filed a Motion to Suppress Confession. However, no ruling on this motion appears in the record. A defendant waives his outstanding pre-trial motions by pleading guilty without complaining that the trial court had neither heard nor ruled on them. State v. Corzo, 04-791, p. 2 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

      . The record shows that defendant also pled guilty in case numbers 07-2788 and 07-2789 on that same date. However, those cases are unrelated to the present appeal.

      . The procedure set forth in Beniamin 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.

      . 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).

      . 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).

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

      . 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).

      . State v. Bourgeois, 406 So.2d 550 (La.1981).