text:
    Anne Marie VANDENWEGHE v. The PARISH OF JEFFERSON; Steve Theriot, in his capacity as Chief Administrative Officer; Eula Lopez, in her capacity as Chief Custodian of Public Records for the Parish of Jefferson; and, Greg Giangrosso in his capacity as Assistant Parish Attorney and Agent for Custodian of Public Records for the Parish of Jefferson.
    No. 11-CA-52.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Jack E. Truitt, Attorney at Law, Cov-ington, LA, for Plaintiff/Appellant.

      M. Nan Alessandra, Kim M. Boyle, Attorneys at Law, New Orleans, LA, for DefendantyAppellee.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and HILLARY J. CRAIN, Pro Tempore.
   FREDERICKA HOMBERG WICKER, Judge.

| gThis appeal concerns a mandamus action following a request under the Public Records Law. It arises from a judgment which sustained exceptions of no cause of action, no right of action, unauthorized use of summary proceedings, and lack of personal jurisdiction filed on behalf of defendants/appellees (The Parish), dismissing plaintiff’s/appellant’s, Anne-Marie Vande-nweghe’s, petition for a writ of mandamus. Ms. Vandenweghe appeals the dismissal of her mandamus petition urging that the trial judge erred in sustaining the exceptions of no cause of action, no right of action, and lack of personal jurisdiction over one of the defendants, Steve Theriot (in his capacity as chief administrative officer). For the reasons that follow, we reverse in part; vacate in part, and remand.

IsProcedural History

On September 27, 2010, Ms. Vande-nweghe, who was an Assistant Parish Attorney at the time, submitted to the Parish of Jefferson, a public records request pursuant to the Public Records Law, La.R.S. 44:1 et. seq. Ms. Vandenweghe requested the following: “any + all emails sent from or to avandenweghe@jeffparish.net (will pay cost of CD(s) necessary to hold) ... January 2009 to present.

Three days later, on September 30, 2010, the Parish responded by letter from Assistant Parish Attorney Greg T. Giang-rosso. According to the letter, Ms. Vande-nweghe was informed that her request had generated “in excess of twenty-five thousand e-mails most of which contain[ed] electronically attached documents.” The letter informed Ms. Vandenweghe that the office was working with the “custodian(s) to ensure that any exempted material [was] timely segregated.” She was informed that someone would notify her when the public records were available and at what cost, if applicable. And, in the event that any documents were segregated or redacted, they would provide the legal basis for the exemptions. She was informed that her request in its present form was burdensome. And, alternatively, she may narrow the scope of her request, in writing, in order to render the public records she sought more readily identifiable.

On October 12, 2010, Ms. Vandenweghe filed a petition for a writ of mandamus. The Parish filed peremptory, declinatory, and dilatory exceptions. In the rulings pertinent to this appeal, the Parish urged: (1) Steve Theriot, in his capacity as chief administrative officer, was not the custodian of the alleged public records. Therefore, the court lacked personal jurisdiction over him. (2) Ms. Vandenweghe had no right of action because she was not allowed to waive or disclose privileged/work product e-mail correspondence that she wrote or received |4in her capacity as a parish attorney. (3) Ms. Vandenweghe had no cause of action for a writ of mandamus. The Parish argued that Ms. Vandenweghe did not state a cause of action for a writ of mandamus because there was an element of discretion in segregating privileged information from the voluminous e-mails and attachments. (4) Ms. Vandenweghe had no cause of action because privileged information is exempt from public records disclosure. The trial judge sustained the exception of lack of personal jurisdiction as to Mr. Theriot, dismissing Mr. Theriot from the suit; sustained the exception of no right of action; and, sustained the exception of no cause of action, dismissing the petition for a writ of mandamus.

Mandamus/Custodian

La.R.S. 44:35 authorizes a mandamus proceeding when any person has been denied the right to inspect or copy a record under the provisions of the Public Records Law. It pertinently provides:

A. Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney’s fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.
B. In any suit filed under Subsection A above, the court has jurisdiction to enjoin the custodian from withholding records or to issue a writ of mandamus ordering the production of any records improperly withheld from .the person seeking disclosure. The court shall determine the matter de novo and the burden is on the custodian to sustain his action. The court may view the documents in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court.

|fiThe statute confers upon the court jurisdiction to enjoin a specific entity: the custodian. The Parish asserted that the court lacked jurisdiction under R.S. 14:35(B) to enjoin Mr. Theriot because he is not the custodian.

Ms. Vandenweghe asserts that the Parish mislabeled the exception; it should have been labeled as a lack of procedural capacity, a dilatory exception, La.C.C.P. art. 926(A)(6). The defendants, however, styled the exception as a lack of personal jurisdiction as well as an exception to jurisdiction under La.R.S. 14:35(B). The Parish challenged Mr. Theriot’s capacity to be sued as the custodian. In contrast, the declinatory exception of lack of personal jurisdiction, La.C.C.P. art. 6, provides specific requirements for the court’s exercise of personal jurisdiction, which the Parish did not challenge.

Although styled as an exception of lack of personal jurisdiction, the exception is more properly an exception of lack of procedural capacity. Accordingly, because every pleading shall be so construed as to do substantial justice, La.C.C.P. art. 865, we shall construe the exception of lack of personal jurisdiction as an exception of lack of procedural capacity. See: Williams v. Mumphrey, 95-643, p. 3 (La.App. 5 Cir. 1/30/96), 668 So.2d 1274, 1276, writ not considered, 96-0569 (La.3/29/96), 670 So.2d 1240.

We now turn to a determination of whether the trial court erred in finding that Mr. Theriot lacked the procedural capacity to be sued as the custodian.

The public records request, which was introduced at the hearing, was a form inquiry directed to the Parish rather than a specific person. The Parish asserted below that Mr. Theriot, who was no longer the interim Parish President, was not | fithe custodian. In order to proceed with mandamus relief, however, the court can only exercise jurisdiction over the custodian.

La.R.S. 44:1(A)(3) defines “custodian” as “the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records.”

For someone who asserts that he is not the custodian, the Public Records Law mandates a specific statutory procedure. A non-custodian must comply with La.R.S. 44:34, which states:

If any public record applied for by any authorized person is not in the custody or control of the person to whom the application is made, such person shall promptly certify this in writing to the applicant, and shall in the certificate state in detail to the best of his knowledge and belief, the reason for the absence of the record from his custody or control, its location, what person then has custody of the record and the manner and method in which, and the exact time at which it was taken from his custody or control. He shall include in the certificate ample and detailed answers to inquiries of the applicant which may facilitate the exercise of the right granted by this Chapter.

Here, the record does not confirm, that the trial court conducted a full evidentiary-hearing at which evidence relating to the relevant factors under La.R.S. 44:34 was presented. Given this lacuna in the record, we cannot determine the proper custodian. In the interest of justice, we therefore vacate the judgment sustaining the exception of lack of procedural capacity and remand this matter for a full hearing in order to satisfy the mandated requirements of La. R.S. 44:34.

Although we have determined that La. R.S. 44:34’s mandated requirements were not followed here, we observe that the judgment sustaining the exception to lack of procedural capacity should have allowed Ms. Vandenweghe leave to amend her petition so as to remove the objection if possible. As set forth in La.C.C.P. art. 17933(B), when the grounds of the objection pleaded in the dilatory exception may be removed by amendment of the petition or other action of the plaintiff, “the judgment, sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court.” La.C.C.P. art. 933(B). If the grounds of the objection cannot be removed or, if the plaintiff fails to comply with an order requiring such removal within the delay allowed by the court, the claim or issue material to the exception is subject to dismissal. La. C.C.P. art. 933(B). Therefore, on remand, we instruct the trial judge, that in ruling anew, should he sustain the exception, he should allow Ms. Vandenweghe leave to amend her petition so as to remove the objection if possible by naming the proper defendant, the custodian, as defined by La.R.S. 44:1(A)(3).

No Right of Action

Ms. Vandenweghe filed a petition for mandamus seeking to enforce the Public Records Law. She alleged that she filed a formal written public records request seeking e-mails and attachments generated by her or sent to her by others in the course and scope of her employment as Assistant Parish Attorney. The Parish filed an exception of no right of action on the basis that Ms. Vandenweghe, as an attorney on behalf of Jefferson Parish, was not allowed to waive the Parish’s attorney-client privilege or work product privilege. Therefore, according to the Parish, Ms. Vandenweghe has no right to obtain these records and potentially disclose privileged information relating to her representation of the Parish.

An action can only be brought by a person having a real and actual interest which he asserts. La. Paddlewheels v. La. Riverboat Gaming, 94-2015 (La.11/30/94), 646 So.2d 885, 888 citing La.C.C.P. art. 681. The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. Id., citing La.C.C.P. art. 927(5). The function of the exception of no right of faction is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Id. (Citation omitted). The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Id. (Footnote omitted).

It is well-settled that the public’s right of access to public records is a fundamental right guaranteed by both the Louisiana Constitution and the Public Records Law set forth in La. R.S. 44:1 et seq. Times Picayune Pub. Corp. v. Board of Sup’rs of Louisiana State University, 02-2551, p. 6 (La.App. 1 Cir. 5/9/03), 845 So.2d 599, 605, writ denied, 03-1589 (La.9/5/03), 852 So.2d 1044.

La. Const, art. 12, § 3 states that “no person shall be denied the right to ... examine public documents, except in cases established by law.”

In Title Research Corp. v. Rausch, 450 So.2d 933, 936 (La.1984), the Louisiana Supreme Court held:

The right of the public to have access to the public records is a fundamental right, and is guaranteed by the constitution. La. Const, art. 12, § 3. The provision of the constitution must be construed liberally in favor of free and unrestricted access to the records, and that access can be denied only when a law, specifically and unequivocally, provides otherwise. Id. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right to see. To allow otherwise would be an improper and arbitrary restriction on the public’s constitutional rights.

The Public Records Law, which is liberally construed, clearly provides that “any person” who has been denied the right to inspect or copy a record under the provisions of the public records law, has a right of action to proceed with a mandamus following a final determination of the custodian or the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of 19his request without receiving a final determination in writing by the custodian. La.R.S. 44:35. Moreover, La.R.S. 44:32(A) provides that “[t]he custodian shall present any public record to any person of the age of majority who so requests.”

Although the Parish timely responded to Ms. Vandenweghe’s request, it did not thereafter within the five days allowed by law provide access to alleged requested public documents. Therefore, Ms. Vande-nweghe, as the person who requested access to the documents at issue has a right to bring a suit for enforcement of the Public Records Law. See: Red Stick Studio Development, L.L.C. v. State ex rel. Dept, of Economic Development, 09-1349, p. 7 (La.App. 1 Cir. 4/8/10), 37 So.3d 1029, 1035, writ denied, 10-1501 (La.10/1/10), 45 So.3d 1102. Ms. Vandenweghe fell within the ambit of “any person” for purposes of filing a writ of mandamus under La.R.S. 44:35. Thus, the trial judge erred in sustaining the exception of no right of action.

Accordingly, we reverse the judgment sustaining the exception of no right of action.

No Cause of Action

The Parish filed an exception of no cause of action asserting that in light of the facts of this case, mandamus is an inappropriate remedy. In this regard, the Parish argued that the duty in this case is discretionary and mandamus may not issue to compel performance of an act which contains any element of discretion, however slight. Rather, a writ of mandamus may only be issued to compel the performance of the ministerial duty required by law. In this regard, the Parish asserts that the records contain attorney-client privileged information and/or work product. Therefore, there would be a significant degree of discretion exercised by the custodian in segregating or redacting the information that is excepted by the | mPublic Records Law. The Parish also argues that there is a reasonable expectation of privacy concerning the privileged emails, yet another basis for its exercise of discretion.

The Parish argues on appeal that Ms. Vandenweghe has abandoned this alleged error by failing to brief the issue. However, Mr. Vandenweghe, under her designated “assignments of Error,” asks this Court to “conduct a de novo review and reverse the plainly wrong ruling that the plaintiff/appellant does not have a cause or right of action to seek compliance with the Public Records Laws.” In her discussion combining the exceptions of no cause of action and no right of action, she briefs the issue raised by the Parish concerning the alleged discretion regarding privileged communications. Thus, we conclude that Ms. Vandenweghe has not abandoned the issue.

La.R.S. 44:4.1(C), upon which the Parish relies, provides the following exception to the laws pertaining to public records:

The provisions of this Chapter shall not apply to any writings, records, or other accounts that reflect the mental impressions, conclusions, opinions, or theories of an attorney or an expert, obtained or prepared in anticipation of litigation or in preparation for trial.

The custodian has a duty to segregate public records from other records. Association for Rights of Citizens, Inc. v. Parish of St. Bernard, 557 So.2d 714, 717 (La.App. 4 Cir.1990), citing La.R.S. 44:33(A)(1).

La.R.S. 44:33(A)(1) provides:

When a request is made for a public record to which the public is entitled, the official, clerks of court and the custodian of notarial records in and for the parish of Orleans excepted, who has responsibility for the record shall have the record segregated from other records under his custody so that the public can reasonably view the record.

If segregation would be unreasonably burdensome or expensive, then the custodian must state this in writing, as did the Parish in this case. La.R.S. 44:33(A)(2) provides:

If, however, segregating the record would be unreasonably burdensome or expensive, or if the record requested is maintained in a fashion that makes it readily identifiable and renders further segregation unnecessary, the official shall so state in writing and shall state the location of the requested record.

Those portions deemed nonpublic must be separated prior to the public release of the record. La. R.S. 44:32(B) states:

If any record contains material which is not a public record; the custodian may separate the nonpublic record and make the public record available for examination.

La.C.C.P. art. 3863 provides that a writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. A writ of mandamus is not an appropriate procedure where there is an element of discretion left to the public officer. Schmill v. St. Charles Parish, 96-894, p. 11 (La.App. 5 Cir. 3/12/97), 692 So.2d 1161, 1166.

However, La. R.S. 44:31(B)(3) provides that the burden of proving that a public record is not subject to inspection, copying or reproduction shall rest with the custodian. Times Picayune Pub. Corp. v. Board of Sup’rs of Louisiana State University, supra, at 8, 845 So.2d at 605. The mere fact that the public record requested may contain nonpublic material is not a valid reason for restricting access to that record. Id. at 6, 845 So.2d at 605-606 (citation omitted). Rather, when a record contains material which is not a public record, the custodian may separate the nonpublic record and make only the public record available for examination. Id., citing La. R.S. 44:32(B).

Simply because material requested may contain nonpublic records is not a reason for restricting access. Elliott v. District Attorney of Baton Rouge, 94-1804 (La.App. 1 Cir. 9/14/95), 664 So.2d 122, 126, writ denied, 95-2509 (La.12/15/95), 664 So.2d 440.

Although the examination of records or requests for reproduction cannot be so burdensome as to interfere with the operation of the custodian’s constitutional and legal duties, any restriction or limitation imposed by the custodian places the burden on the custodian to justify the restriction or limitation. Id.

Also, the Public Records Law, La.R.S. 44:35, provides for a writ of mandamus, which authorizes the trial court, in that proceeding to conduct an in camera review of the documents in controversy as follows:

In any suit filed under Subsection A above, the court has jurisdiction to enjoin the custodian from withholding records or to issue a writ of mandamus ordering the production of any records improperly withheld from the person seeking disclosure. The court shall determine the matter de novo and the burden is on the custodian to sustain his action. The court may view the documents in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court.
La.R.S. 44:35(B).

By so crafting the statute, the legislature made clear that the court, not the public body, is to be the ultimate arbiter of the privilege. Through an in camera review, the court can determine whether the e-mails contain exempt information under La.R.S. 44:4.1(C) or whether the release would violate the constitutional right to privacy. Then the trial court, mindful that there is no discretion in ordering the release of public records, has the authority to issue a writ of mandamus for what he determines on in camera review to be public records. Thus, mandamus, which under the Public Records Law, has a specific procedure in place to 11sdetermine the nature of the requested items, is an appropriate remedy for ordering the release of public records.

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Cleco Corp. v. Johnson, 01-0175, p. 3 (La.9/18/01), 795 So.2d 302, 304. The exception is tried on the face of the pleadings and the court accepts the facts alleged in the petition as true, determining whether the law affords relief to the plaintiff if those facts are proved at trial. Id. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the court of appeal and this court should subject the case to de novo review because the exception raises a question of law, and the lower court’s decision is based only on the sufficiency of the petition. Id. (Citations omitted). No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931.

In Alliance for Affordable Energy v. Frick, 96-1763 (La.App. 4 Cir. 5/28/97), 695 So.2d 1126, 1136, the court held that whether a public record is exempt from disclosure may be determined in the mandamus proceeding. Frick explained:

Whether an exemption from disclosure exists (and thus whether mandamus is proper) may be determined in the mandamus proceeding through a contradictory hearing.... See La.C.C.P. art. 3865 which provides that in a mandamus proceeding the court shall issue an alternative writ directing the defendant to perform the act demanded or to show cause to the contrary. See also Marler v. Reed, 93-1772 (La.App. 1 Cir. 6/24/94), 638 So.2d 1164, which held that the Public Records Act and Code of Civil Procedure articles governing mandamus envision a contradictory hearing to determine whether the requested documents are public records.
695 So.2d at 1132. Compare: Association for Rights of Citizens, Inc. v. Parish of St. Bernard, et. al, 557 So.2d 714, 716 (La.App. 4 Cir.1990) (appellate court ordered writ of mandamus directing ap-pellees to make available nonconfiden-tial information pursuant to Public Records Law).

Given that the Public Records Law and the Code of Civil Procedure articles governing mandamus envision a contradictory hearing to determine whether the requested documents are public records and The Public Records Law imposes upon the custodian the burden of establishing any exception or exemption, the trial judge erred in sustaining the exception of no cause of action.

Therefore, we reverse the judgment sustaining the exception of no cause of action.

Decree

Accordingly, for the reasons stated, the judgment sustaining the exception of lack of procedural capacity as to Mr. Theriot is vacated. The judgment sustaining the exceptions of no right of action and no cause of action are reversed. This matter is remanded for further proceedings consistent with the views expressed herein.

REVERSED IN PART; VACATED IN PART; REMANDED.

      . These parties are: The Parish of Jefferson, Steve Theriot, in his capacity as chief administrative officer, Eula Lopez, in her capacity as chief custodian of public records for the Parish of Jefferson, and Greg Giangrosso in his capacity as Assistant Parish Attorney and agent for custodian of public records for the Parish of Jefferson.

      . The appellees assert that Ms. Vandenweghe has abandoned the specification that the trial court erred in sustaining the exception of no cause of action. We note, however, that in her brief, Ms. Vandenweghe discussed the exception of no cause of action with no right of action in combination.

      . There is an exception, not pertinent here, to "any person” applicable to "an individual in custody after sentence following a felony conviction who has exhausted his appellate remedies when the request for public records is not limited to grounds upon which the individual could file for post conviction relief under Code of Criminal Procedure Article 930.3.” La.R.S. 44:31.1.

      . These requirements are: (1) appropriate service of process on the defendant, or on his agent for the service of process, or the express waiver of citation and service under Article 1201; (2) service of process on the attorney at law appointed by the court to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this state; (3) submission of the party to the jurisdiction of the court by commencing an action or by the waiver of objection to jurisdiction by failure to timely file the declinatory exception. La.C.C.P. art. 6(A)(l)-(3). In addition, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and with the Constitution of the United States. La.C.C.P. art. 6(B).

      . See, note 3, infra for an exception not applicable here. La.R.S. 44:31.1.

      . See note 3, infra.

      . See note 3, infra.

      . La.R.S. 44:31(B)(3) states: "The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.”


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Terrell J. SUGGS.
    No. 10-KA-599.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Scott U. Schlegal, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Terrell J. Suggs, In Proper Person, Jackson, LA.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

|sThe defendant, Terrell J. Suggs, has appealed his conviction of possession of marijuana, second offense, and sentence as a third multiple offender. For the reasons that follow, we affirm defendant’s conviction, vacate defendant’s multiple offender sentence, and remand to the trial court to correct the commitment on defendant’s underlying sentence and for resentencing on defendant’s multiple offender adjudication.

FACTS AND PROCEDURAL BACKGROUND

On December 2, 2008, defendant was charged with possession of marijuana, second offense, in violation of LSA-R.S. 40:966(C). Defendant pled not guilty to the charge on December 16, 2008. On September 3, 2009, the trial court heard and denied defendant’s motions to suppress his statement and evidence. On January 4, 2010, trial commenced and a six-person jury returned a verdict of guilty as charged. Defendant gave oral notice of his intention to file a motion for appeal. Also on January 4, 2010, the State made known its intention to file a multiple bill against defendant.

|4On January 14, 2010, the trial court sentenced defendant to five years imprisonment for his conviction of possession of marijuana, second offense. Defendant’s oral motion to reconsider the sentence was denied by the trial court. Defendant’s written motion for appeal was granted.

On that same date, after the sentence was imposed, the State filed a multiple offender bill of information against defendant and a hearing on the multiple bill commenced. The trial court then adjudicated defendant to be a third felony offender, and after sentencing delays were waived, sentenced defendant to ten years imprisonment, with credit for time served, without the benefit of probation or suspension of sentence in accordance with LSA-R.S. 15:529.1.

At the hearing on defendant’s motion to suppress, Deputy Dustin Ducote of the Jefferson Parish Sheriffs Office testified that while on patrol, he observed defendant traveling at a high rate of speed and initiated a traffic stop. Upon approaching defendant’s vehicle, Deputy Ducote noticed that defendant was acting in a very nervous manner, “fooling with everything” while inside the vehicle. Because of defendant’s actions, Deputy Ducote asked defendant to step out to the rear of the vehicle for safety reasons. While at the rear of the vehicle, defendant continually placed his hands in his pockets. Deputy Ducote then instructed defendant to place his hands on the back of the vehicle. At that point, Deputy Ducote conducted a pat-down search of defendant for weapons.

While performing the search, Deputy Ducote felt a slender object, which he believed could have been a knife, along with another object, in defendant’s pocket. Deputy Ducote placed defendant in handcuffs, then reached into defendant’s pocket and removed a box cutter and a plastic bag containing green vegetable matter. After Deputy Ducote found the green vegetable matter, defendant stated: “I don’t know what that is. Do you want it, or you could throw it away.” Upon | finding the green vegetable matter, Deputy Ducote “Miran-dized” defendant and advised him that he was being arrested for possible possession of marijuana.

On cross-examination, Deputy Ducote further described defendant’s behavior while he was inside the vehicle, which included fidgeting around in the vehicle, feeling on the outside of his pocket, and failing to make eye contact. Deputy Ducote indicated that this behavior, coupled with the fact that they were in a high crime drug area, caused him to ask defendant to step out of the vehicle. Deputy Ducote further testified that the box cutter was not placed into evidence because he did not believe it had any evidentiary value and because it was not illegal for defendant to carry a box cutter.

The trial court denied defendant’s motion to suppress evidence, finding: that Deputy Ducote had the right to stop defendant because he was speeding; that Deputy Ducote asked defendant to step out of the car because defendant was acting in a nervous manner; that defendant kept digging in his pockets; that it was a high crime drug area, which prompted Deputy Ducote to do a pat-down search of defendant for officer safety; and that Deputy Ducote felt the box cutter, giving him the right to go into defendant’s pockets, ultimately finding the box cutter along with the marijuana.

The trial judge further denied defendant’s motion to suppress his statement to Deputy Ducote, finding that the statement was voluntarily offered by defendant, that it was not in response to a question by Deputy Ducote, and that the statement was made before defendant was “boykin-ized” [sic].

On January 4, 2010, the matter proceeded to trial. The State called Deputy Du-cote to the stand and he testified substantially in conformity with his previous | (¡testimony at the suppression hearing. He stated that he stopped defendant for reckless driving and speeding after pacing defendant’s vehicle at 50 miles per hour, 30 miles per hour over the posted speed limit, in a residential area with a park and children in close proximity. He explained that defendant was fidgeting in the center console of the vehicle, which made Deputy Ducote nervous because traffic stops are high risk. After encountering defendant, and observing his nervous and “irregular” behavior, Deputy Ducote became concerned for his safety and directed defendant to step out of his vehicle and place his hands on the trunk. Deputy Ducote explained that although defendant initially complied, he thereafter repeatedly reached his hands into his pockets removing his hands from the trunk, which became a “safety issue” for Deputy Ducote. Because defendant continually failed to follow Deputy Ducote’s explicit instructions for defendant to remove his hands from his pockets and place them on the trunk, Deputy Ducote placed defendant in handcuffs.

Deputy Ducote then conducted a pat-down search of defendant for weapons in which he felt a slender object and a bag in defendant’s front right pocket. Deputy Ducote asked defendant what was in his pocket and defendant said he did not know. Deputy Ducote then reached into defendant’s pocket and removed a box cutter. As Deputy Ducote was pulling the box cutter out of defendant’s pocket, a bag of green vegetable matter also came out into Deputy Ducote’s hand. Immediately, defendant said: “I don’t know what that is. Do you want it? You can throw it away.” Deputy Ducote then advised defendant of his Miranda rights and informed defendant that he was being arrested. The contents of the bag field tested positive for marijuana, which was confirmed by further analysis.

|7On cross-examination, Deputy Ducote disclosed that he placed the box cutter back into defendant’s vehicle because it was not illegal for defendant to carry it.

The State called Deputy Aischa Prud-homme, who was recognized by the court as an expert latent fingerprint examiner, and who testified that she took defendant’s fingerprints in court before trial commenced that morning and compared them against a print card that contained in a certified conviction packet from a case in 2002 involving marijuana possession. Deputy Prudhomme testified that based on the fingerprint comparison, defendant was the same person who was convicted for the possession of marijuana in the 2002 case. The State admitted Exhibits 4, 5, and 6, which consisted respectively of the fingerprint card taken that day in court, a certified conviction packet of the prior conviction in 2002, including a fingerprint card, and a fingerprint card from the prior arrest of defendant in the 2002 case.

After the testimony of Deputy Prud-homme concluded, defendant recalled Deputy Ducote to the stand. In response to questioning by defendant’s attorney, Deputy Ducote explained that defendant repeatedly reached into his pockets, about three or four times, against Deputy Du-cote’s constant directives to the contrary before Deputy Ducote placed defendant in handcuffs and conducted the pat-down search of defendant for safety. In response to the question as to why the box cutter was not brought into evidence, Deputy Ducote reiterated that because it was not illegal for defendant to carry a box cutter, he left it in defendant’s vehicle. He also stated that he did not feel that it was important to take the box cutter as a piece of evidence.

|sThe trial proceeded to closing arguments and the jury was sent out to deliberate. The jury then returned a guilty verdict and the court set sentencing for the following week. Then, for the second time, the State made known its intention to file a multiple offender bill of information against defendant.

At the sentencing hearing, held on January 14, 2010, defendant was sentenced to five years imprisonment. Defendant immediately made an oral motion to reconsider the sentence arguing that the sentence was excessive considering defendant’s age and the nature of the charge. The trial court denied the motion. Defendant then filed a motion to appeal the verdict in open court which the trial court granted orally and subsequently in writing.

On January 14, 2010, after sentencing, the State filed a multiple offender bill of information alleging that defendant was a third felony offender, with two prior felony convictions: case number 02-1917, possession of cocaine, and case number 03-4292, possession of cocaine. The multiple offender hearing commenced immediately after counsel for defendant stated that she and defendant were “ready to proceed with the multiple bill hearing.”

At the multiple offender hearing, the State called Deputy Prudhomme, recognized by the court as an expert in latent fingerprints, who testified that she took a set of fingerprints from defendant on January 4, 2010 in connection with defendant’s conviction of possession of marijuana, second offense. These prints, along with two certified copies of convictions in the two predicate offenses, including fingerprints, were placed into evidence. Deputy Prud-homme testified that she reviewed the exhibits and concluded that the fingerprints taken in the prior convictions matched the fingerprints taken in court on January 4, 2010, and that all the fingerprints belonged to defendant, whom she identified in open court.

|9The court then found that defendant was convicted on January 4, 2010 of second offense possession of marijuana, and that he was convicted twice for possession of cocaine, once on August 27, 2002 and again on January 27, 2004.

After waiving sentencing delays, the court sentenced defendant to ten years imprisonment without the benefit of probation or suspension of sentence, in accordance with LSA-R.S. 15:529.1. After noting defendant’s objection, the court vacated its previous sentence on the underlying conviction, and sentenced defendant to ten years imprisonment without the benefit of probation or suspension of sentence.

COUNSELED ASSIGNMENTS OF ERROR

While defendant’s counseled brief lists excessive sentence as the only assignment of error, four issues are actually raised therein.

Procedural Irregularities

First, defendant contends that the multiple offender adjudication should be vacated and remanded because it was not in conformity with the mandates of LSA-R.S. 15:529.1(D). Specifically, defendant asserts that he was not arraigned and he was not given the required time period, 15 days, in which to file objections to the multiple offender bill. Additionally, defendant urges that the court did not advise him of his right to remain silent and/or to be compelled to acknowledge the predicate offenses. We find no merit to these arguments.

The Multiple Offender Statute directs the trial court to order the defendant to appear before it, inform the defendant of the allegations contained in the bill of information, of his right to be tried as to the truth, and to require the offender to | incomment on the truth of the allegations. LSA-R.S. 15:529.1(D)(l)(a). Implicit in the statute is the requirement of the court to advise the defendant of his right to remain silent. State v. Allen, 93-838, p. 16 (La.App. 5 Cir. 5/31/94), 638 So.2d 394, 403, (citing State v. Johnson, 432 So.2d 815 (La.1983)).

However, LSA-C.Cr.P. art. 555 states:

Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.

This Court has consistently held that when a defendant proceeds to a multiple offender hearing without objecting to the lack of arraignment, any error in the failure to arraign is waived. Allen, 93-838 at 16, 638 So.2d at 403; State v. Harris, 01-1380 (La.App. 5 Cir. 4/30/02), 817 So.2d 387, 389; State v. Evans, 02-1108 (La.App. 5 Cir. 3/11/03), 844 So.2d 111, 115. Additionally, this Court has held that the failure of the trial court to advise the defendant of his right to remain silent is harmless error when the defendant remains silent and his multiple offender status is established by competent evidence offered by the State at the hearing, rather than by the defendant’s admission. Allen, 93-838 at 16, 638 So.2d at 403; State v. Harris, 01-1380 (La.App. 5 Cir. 4/30/02), 817 So.2d 387, 389; (citing State v. Perkins, 99-1084 (La.App. 5 Cir. 1/25/00), 751 So.2d 403, 408-09, writ denied, 00-656 (La.12/15/00), 777 So.2d 476).

In the instant case, defendant proceeded to the multiple offender hearing without objecting, with counsel stating that the defendant was “ready to proceed with the multiple offender hearing.” Therefore, any procedural irregularity or error in the failure to arraign defendant was waived.

11 furthermore, the trial court held a hearing at which defendant’s multiple offender status was established by evidence. Specifically, Deputy Prudhomme testified that she took a set of fingerprints on January 4, 2010 in connection with defendant’s conviction of possession of marijuana, second offense, and compared these fingerprints with those contained in two certified copies of convictions in the two predicate offenses, and concluded that the fingerprints all belonged to defendant. Additionally, defendant exercised his right to remain silent because he did not testify at this hearing.

Defendant contends that the multiple offender adjudication should be vacated and remanded pursuant to State v. Johnson, 432 So.2d 815 (La.1983), because defendant was not apprised of his right to remain silent. However, Johnson is distinguishable from the present case because in that case, the defendant was not apprised of his right to remain silent, the State offered no evidence to prove the defendant’s multiple offender status, and then the defendant was compelled to testify against himself regarding a prior conviction in another state. Id. at 815-17. Conversely, in the present case, defendant was not required to testify against himself; rather, he did not testify at all, and the State established that defendant was a multiple offender through competent evidence. Therefore, we conclude that the trial court’s failure to inform defendant of his right to remain silent was harmless error.

Adequate Proof of Predicate Convictions

Second, defendant asserts that he cannot ascertain from the record whether the State met its burden in providing adequate proof that defendant was a multiple offender under the Multiple Offender Statute. We find no merit to this assertion.

To prove a defendant is a habitual offender, the State must prove the prior felony convictions and that the defendant is the same person who was convicted of | iathe prior felonies. State v. Mims, 00-1507, p. 8 (La.App. 5 Cir. 12/26/01), 806 So.2d 760, 766, writ denied, 02-0466 (La.2/7/03), 836 So.2d 88. The State may establish the defendant’s identity by various means, such as expert testimony, matching fingerprints of the accused to those in the record of a prior proceeding, testimony of witnesses to prior crimes, or photographs contained in a duly authenticated record. State v. Breaux, 00-236 (La. App. 5 Cir. 8/29/00), 767 So.2d 904, 909, writ denied, 00-2874 (La.6/29/01), 794 So.2d 808; (citing State v. Richmond, 98-1015 (La.App. 5 Cir. 3/10/99), 734 So.2d 33, 37; and State v. Bailey, 97-302 (La.App. 5 Cir. 4/28/98), 713 So.2d 588, 610, unit denied, 98-1458 (La.10/30/98), 723 So.2d 971). When the State relies on a prior conviction that is based on a guilty plea in proving the defendant’s multiple offender status, and the defendant denies the allegations of the multiple bill, the State bears the burden of proving the existence of the prior guilty plea and that the defendant was represented by counsel when it was taken. State v. Shelton, 621 So.2d 769, 779-80 (La.1993). Once the State meets this burden, the defendant must produce affirmative evidence of an infringement of his rights or of a procedural irregularity. Id. If the defendant meets this burden, the burden shifts back to the State to prove the constitutionality of the plea, that is, that the plea was knowing and voluntary. Id. This final burden can be met if the State produces a “perfect transcript” articulating the Boykin colloquy between the defendant and the trial judge, or any combination of a guilty plea form, a minute entry, or an “imperfect” transcript. State v. Collins, 04-255, p. 6 (La.App. 5 Cir. 10/12/04), 886 So.2d 1149, 1154, writ denied, 04-2798 (La.3/11/05), 896 So.2d 62. If the State introduces anything less than a “perfect” transcript, such as a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge must weigh the |1sevidence submitted by each party to determine whether the State has met its burden of proving the prior guilty plea was “informed and voluntary, and made with an articulated waiver of the three Boykin rights.” Shelton, 621 So.2d at 780.

In the instant case, the multiple offender bill of information alleged defendant had three prior felony convictions: (1) possession of cocaine (LSA-R.S. 40:967(0) in 2002 in case number 02-1917 in Jefferson Parish; (2) possession of cocaine (LSA-R.S. 40:967(0) in 2004 in case number 03-4292 in Jefferson Parish; and (3) second offense possession of marijuana (LSA-R.S. 40:966(0) in 2010 in case number 08-6038 in Jefferson Parish. The State alleged that the two predicate convictions for possession of cocaine resulted from guilty pleas. Because defendant proceeded to trial at the multiple offender hearing thereby waiving the formalities of arraignment, he is considered to have pled not guilty. LSA-C.Cr.P. art. 555, supra.

The evidence indicates that the State met its initial burden of proving the existence of the prior convictions and that defendant was represented by counsel. Evidence introduced at the multiple offender hearing included State’s Exhibit 1, a fingerprint card taken from defendant on January 4, 2010 in connection with his conviction in case number 08-6038, and State’s Exhibits 2 and 3, certified copies of defendant’s two prior felony convictions for possession of cocaine from Case Numbers 02-1917 and 03^1292, respectively. Defendant pled guilty in case numbers 02-1917 and 03-4292. A review of the Plea of Guilty & Waiver of Rights Forms shows that each include a waiver of the three essential Boykin rights, maximum sentences for each of the charges, the nature of the charges, the actual sentence, and the signatures of defendant, his attorney, and the trial judge. Defendant also indicated on the forms that he had not been forced, coerced, or threatened to enter his guilty pleas. In case number 03-4292, defendant | ^acknowledged that “if convicted of another crime within ten years of the expiration of the sentence for this conviction, [he] would be eligible to be multiple billed.”

The State met its burden of proving identity at the multiple offender hearing through the testimony of Deputy Prud-homme, who examined the fingerprints introduced into evidence and determined that they all belonged to defendant. Thus, we find that the State met its initial burden under Shelton. The burden then shifted to defendant to establish a defect in the proceedings or an infringement of his constitutional rights. Defendant did not object to any of the evidence submitted to prove the predicate offenses nor did he attempt to show any constitutional infringements or defects in the proceedings with respect to the prior guilty pleas. Thus, we find that the record indicates that the State provided adequate proof that defendant was a multiple offender.

Reasons for Sentence

Third, defendant argues that the court failed to provide written reasons for its determination that defendant was a third felony offender and its sentence, which requires this Court to vacate the sentence and remand for reconsideration. This argument is likewise without merit.

LSA-R.S. 15:529.1(D)(3) provides that after the defendant is adjudicated a multiple felony offender, the court must sentence the defendant to the punishment so prescribed, vacate the previous sentence if already imposed, and provide written reasons for its determination. However, this Court has consistently found the trial court to be in compliance with the statute when it asserts oral reasons for finding the defendant to be a multiple offender, which are later transcribed to form part of the record. Breaux, 00-236, 767 So.2d at 908 (citing State v. Neal, 99-1853 (La.App. 5 Cir. 5/30/00), 762 So.2d 281; and State v. Perkins, 99-1084 (La.App. 5 Cir. 1/25/00), 751 So.2d 403).

11sIn the present case, the transcript from the multiple offender hearing shows that the trial judge gave oral reasons to support its finding that defendant was a third felony offender. Particularly, the trial judge stated that defendant was convicted once on a second offense possession of marijuana, and twice for possession of cocaine. Thus, the trial court has complied with the mandates of the Multiple Offender Statute because its oral reasons for determination were transcribed and now form part of the record.

Defendant further argues that the trial judge did not give written reasons for sentencing pursuant to the mandates of LSA-C.Cr.P. art. 894.1. However, this issue was not raised in the trial court, and thus, defendant is precluded from raising this issue on appeal. State v. Carter, 07-270 (La.App. 5 Cir. 12/27/07), 976 So.2d 196, 202.

Excessive Sentence

Defendant contends that the trial court imposed an excessive sentence in violation of the Constitutions of the United States and the State of Louisiana. However, as discussed infra, the trial court imposed an indeterminate sentence on defendant, which must be vacated. This finding pre-termits a discussion of defendant’s excessive sentence claim.

PRO SE ASSIGNMENTS OF ERROR

Defendant asserts three assignments of error in his pro se brief.

In his first pro se assignment of error, defendant alleges that the bill of information does not include the date of his prior conviction in violation of LSA-C.Cr.P. art. 483. However, the record does not indicate that defendant raised this alleged defect in the bill prior to trial. A defendant may not raise the sufficiency of an indictment for the first time after conviction, especially when the charging | j (¡document fairly informed him of the charge against him and the alleged defect did not prejudice him. State v. Allen, 01-2494 (La.6/21/02), 824 So.2d 344. Failure to do so waives the claim. Id.

The bill of information charged defendant with possession of marijuana, second offense, included a case number from which the date of the prior conviction can be obtained, and as such sets forth an identifiable offense. Furthermore, defendant has not claimed any surprise, nor has he shown any prejudice due to this alleged defect. This assignment of error is without merit.

In his second pro se assignment of error, defendant contends that he was subject to an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution and the Constitution of the State of Louisiana; therefore, defendant asserts that the marijuana should have been suppressed as it was obtained through an unlawful search.

In order to determine whether a trial court’s motion to suppress ruling is correct, an appellate court may look at evidence presented at the motion hearing as well as pertinent evidence introduced at trial. State v. Mollette, 08-138, p. 10 (La. App. 5 Cir. 11/25/08), 2 So.3d 461, 467, writ denied, 09-155 (La.10/16/09), 19 So.3d 472 (citing State v. Batiste, 06-824, p. 10 (La. App. 5 Cir. 3/13/07), 956 So.2d 626, 634, writ denied, 07-0892 (La.1/25/08), 973 So.2d 751). The trial court is afforded great discretion when ruling on a motion to suppress and its ruling will not be disturbed absent an abuse of discretion. State v. Lee, 05-2098, p. 15 (La.2008), 976 So.2d 109, 122 cert. denied, 555 U.S. 824, 129 S.Ct. 143, 172 L.Ed.2d 39 (citing State v. Vessell, 450 So.2d 938, 943 (La.1984)).

In a hearing on a defense motion to suppress the evidence, the State has the burden of establishing the admissibility of evidence seized without a warrant. LSA-C.Cr.P. art. 703 D; State v. Manson, 01-159, p. 5 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755, cert. denied, 01-2269 (La.9/20/02), 825 So.2d 1156. The exclusionary rule bars, as illegal fruit, evidence obtained either during or as a direct result of an unlawful invasion. Wong Sun v. U.S., 371 U.S. 471, 484-85, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). Evidence recovered as a result of an unconstitutional search and seizure may not be used in a resulting prosecution. State v. Harris, 00-1930, p. 3 (La.App. 5 Cir. 4/11/01), 786 So.2d 798, 801-802.

Once an officer has lawfully stopped a vehicle for a routine traffic violation, he is authorized to order both the driver and passenger out of the vehicle pending completion of the stop. State v. Gomez, 06-417, p. 7 (La.App. 5 Cir. 11/28/06), 947 So.2d 81, 85 (citing Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)). Additionally, an officer conducting a traffic stop may perform a pat-down of a driver upon reasonable suspicion that he may be armed and dangerous. Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 488, 142 L.Ed.2d 492 (1998); LSA-C.Cr.P. art. 215.1. Such a search “must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Terry v. Ohio, 392 U.S. 1, 26, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889. This limited protective search is justified under circumstances where a reasonably prudent person in those circumstances would be warranted in the belief that his safety or the safety of others was in danger. Terry, 392 U.S. at 27, 88 S.Ct. at 1883; State v. Boyer, 07-0476, p. 20 (La.10/16/07), 967 So.2d 458, 471. “[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch/ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. See also State v. Boyer, 07-0476 at 20, 967 So.2d at 471.

[iSWe find that the officer in the instant case had a reasonable, objective, and particularized basis for conducting a pat-down weapons search of defendant. Deputy Du-cote testified that he stopped defendant’s vehicle because he was speeding and that he asked defendant to step out of the vehicle because he was in a high crime drug area, traffic stops are high risk, and defendant was unusually nervous in that he was continually fidgeting, touching the outside of his pockets, and fooling with items in his vehicle. Once defendant exited the vehicle, he constantly reached his hands into his pockets against the orders of Deputy Ducote. Perceiving this as a safety hazard, Deputy Ducote conducted a pat-down search of defendant for weapons. During the course of the pat-down search, Deputy Ducote detected a long slender object in defendant’s pocket. Believing the object was a knife, Deputy Ducote reached into defendant’s pocket and found a box cutter, and incidentally, marijuana which fell into plain view while removing the box cutter from defendant’s pocket. Based on the foregoing, we find no error in the trial court’s denial of defendant’s motion to suppress.

In his final pro se assignment of error, defendant argues that the arresting officer erred in not submitting into evidence the box cutter seized off of defendant. We find no merit to this argument because the only evidence seized from defendant was the marijuana. As noted above, the box cutter retrieved from defendant was never placed into the custody or control of the State; therefore, it was never seized and could not be placed into evidence by the State.

ERRORS PATENT REVIEW

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

haThe commitment reflects that defendant was sentenced to ten years imprisonment at hard labor on the underlying offense and the transcript indicates a five-year sentence on the underlying offense. When there is a conflict between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). Therefore, on remand, the trial court is ordered to correct the commitment on the underlying offense to conform with the transcript.

Also, we find it is unclear as to whether defendant’s multiple offender sentence is to be served with or without hard labor. The commitment indicates that defendant was sentenced to ten years imprisonment pursuant to the Multiple Offender Statute; however, the transcript is unclear as to whether the sentence is to be served with or without hard labor. The transcript prevails when there is a discrepancy between the minutes and the transcript. State v. Lynch, supra. LSA-C.Cr.P. art. 879 requires a court to impose a determinate sentence. If the applicable sentencing statute allows the trial court discretion in determining whether or not to impose a sentence at hard labor, the failure to indicate whether the sentence is to be served at hard labor is an impermissible indeterminate sentence. State v. Norman, OS-794, p. 8 (La.App. 5 Cir. 3/14/06), 926 So.2d 657, 661, writ denied, 06-1366 (La.1/12/07) 948 So.2d 145.

In this case, defendant was adjudicated to be a third felony offender, which carries a sentence of imprisonment for not less than two-thirds of the longest possible sentence for the underlying conviction and not more than twice the longest possible sentenced prescribed for a first conviction. LSA-R.S. 15:529.1. The underlying statute, LSA-R.S. 40:966(E), provided that “hard labor” was discretionary with the sentencing judge. Thus, defendant’s sentence is indeterminate. Accordingly, the multiple offender sentence imposed by the trial | ancourt on defendant is hereby vacated and this matter is remanded for resen-tencing. See, State v. Duplichan, 06-852 (La.App. 3 Cir. 12/6/06), 945 So.2d 170, 174.

CONCLUSION

For the foregoing reasons, defendant’s conviction is affirmed. Defendant’s multiple offender sentence is vacated. This matter is remanded to the trial court for correction of the commitment on defendant’s underlying sentence and for resen-tencing on defendant’s multiple offender conviction consistent with this opinion.

CONVICTION AFFIRMED; MULTIPLE OFFENDER SENTENCE VACATED; REMANDED WITH INSTRUCTIONS

      . On that date, defendant had two cases set for trial, the possession of marijuana case and a second case for distribution within “1,000 miles” [sic] of a school playground. The State, however, only went forward with the marijuana charge on that date and this appeal involves only the marijuana conviction.

        . Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694(1966).

      . Deputy Charles Krone, who was recognized by the court as an expert in forensic science with a specialty in drug analysis, testified that he received a sealed package from an evidence technician containing the suspected marijuana. Deputy Krone performed an exam on a sample of the contents of the package and concluded that its contents were positive for 1.15 grams of marijuana. A copy of Deputy Krone’s report of findings was entered into evidence.

      . Defense counsel also stated at that time, "I will orally file a motion to reconsider sentence,” but the record does not reflect that a motion to reconsider sentence was actually made or filed, orally or otherwise. We do not consider this statement to be a motion to reconsider sentence.

      . Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969).


author: PAINTER, Judge.

text:
    Bradley GRIFFITH v. Resa LATIOLAIS.
    No. 11-166.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.
    Rehearing Denied Aug. 31, 2011.

      Bradford H. Felder, G. Andrew Veazey, Huval, Veazey, Felder, & Renegar, L.L.C., Julie Vaughn Felder, Julie Koren Vaughn Felder, APLC, Lafayette, LA, for Defendant/Appellant, Resa Latiolais.
    D. Reardon Stanford, Hoyt & Stanford, L.L.C., Lafayette, LA, for Plaintiff/Appel-lee, Bradley Griffith.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

|TThe Louisiana Supreme Court remanded this case to the trial court for reconsideration of its joint custody implementation plan in light of the supreme court’s designation of the mother as domiciliary parent and for amendment if the trial court found it to be appropriate. Following the trial court’s modification of the joint custody implementation plan on remand, the mother appealed. For the following reasons, we affirm the trial court’s ruling.

FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural background of this case is well known to this court and was set forth by the Louisiana Supreme Court in Griffith v. Latiolais, 10-754, pp. 1-13 (La.10/19/10), 48 So.3d 1058, 1060-67 (footnotes omitted), as follows:

In this highly acrimonious custody battle, Bradley Griffith (“Brad”) filed suit in October, 2005 against Resa Latio-lais (“Resa”), the mother of his son, Cole Griffith (“Cole”), seeking sole custody of Cole. Cole was born on November 19, 2001 and lived with Resa from that time until the commencement of this litigation. Brad and Resa were not married. Brad visited Cole freely at Resa’s home during this time, but Resa was his sole caretaker. Resa also has a daughter from a prior marriage, Lana Latiolais, who was 16 at the commencement of the litigation.
In September of 2005, Resa, Cole, Lana, and Greg Chappell, Resa’s new boyfriend, evacuated together to escape Hurricane Rita. When they returned, Brad picked up Cole, who evidently told Brad that he, Resa, and Greg slept in the same bed during the evacuation and that Greg was hurting Resa. From this Brad inferred that Resa and Greg had sexual relations in Cole’s presence. On October 5, 2005, Brad filed a petition seeking sole custody of Cole, alleging Resa had “lately not made choices which are in the child’s best interest and has been hurtful to the child.” Resa answered the petition denying the allegations. Further, she sought joint custody and to be named the domiciliary parent.
Later in October of 2005, Lana left her mother’s home and went to the home of a friend where she reported that she had previously been struck in the mouth by her mother and that on October 26, 2006, her mother struck her in the back. She also reported that her mother had whipped Cole with a wooden spoon as a means of discipline. Lana subsequently recanted these allegations and the Office of Child Services investigated these claims and found no child abuse had occurred. Although Brad filed no subsequent pleadings asserting any other grounds for sole custody, he later asserted that his reasons were that Resa had sexual relations with Greg in Cole’s presence during the evacuation, that Resa and her father spanked Cole during Cole’s third birthday party, and that Resa was abusive to Cole and Lana.
|2On November 28, 2005, the trial court signed an “Order for Mental Health Evaluation” appointing Dr. Lyle LeCorgne, Ph.D., to perform a custody evaluation of the parents and Cole, as well as Lana, Greg Chapell, and Cindy Hebert, the mother of Brad’s 15-year-old daughter, Paige. Dr. LeCorgne issued a written report containing his findings and recommendations on April 27, 2006, in which he made the following recommendations:
1.On the basis of the present assessments, it is the opinion of this examiner that the best interests of Cole Griffith are served by Brad Griffith being declared the domiciliary parent and Cole living primarily with his father. Resa Latiolais shall be granted reasonable visitation consisting of alternating weekends, with a condition of supervision, and no overnight visits until such time that Resa Latiolais has engaged in individual psychotherapy with a qualified mental health professional. Upon the recommendation of that qualified mental health professional the condition of supervision is subject to be removed and the visitation gradually increased to include alternating weekends from Thursday through Monday mornings. It is also recommended that Cole Griffith and Lana Latiolais be referred for individual psychotherapy to assist each of them in reconciling their respective emotional distress.
2. Once the condition of supervision has been removed, summer visitation shall be divided equally between the parents, with Cole spending alternating weeks with each parent. Major holidays and vacations during the school year shall be alternated and evenly distributed according to a schedule that is mutually agreeable to the parties.
3. All of the parties in this matter shall facilitate, encourage, and support the child’s natural loyalty to the other parent. No adult in this matter shall make any critical, denigrating, or derogatory comments about any of the other adults to Cole or in his presence.
4. Each of the parties shall enroll in and complete the Children Cope with Divorce classes sponsored by the Family Tree Parenting Center in Lafayette, Louisiana, if they have not already done so.
5. Each of the parties shall enroll in and complete the Cooperative parenting classes sponsored by the Family Tree Parenting Center in Lafayette, Louisiana, if they have not already done so. Resa Latiolais shall also enroll in and complete a course in anger management in a program deemed acceptable to the Court.
On May 1, 2006, the trial court appointed Dr. Kenneth Bouillion to counsel the minor child, and ordered that Resa undergo individual counseling, which she began with Margot Hasha, LCSW, BCD. The trial court also ordered that Resa’s custodial periods be supervised until Dr. LeCorgne was satisfied that she had progressed sufficiently in individual therapy to lift the supervision. The parties stipulated that Brad would participate in a psychological evaluation to be performed on the parties 13and the minor child by a mental health professions [sic] of Resa’s choosing. This evaluation was performed by Drs. Owen Scott, Ph.D. and Mary Lou Kelley, Ph.D. Drs. Scott and Kelley issued a report on August 17, 2006, recommending the following:
1. That Cole alternate weeks between his mother and his father’s homes from Friday to Friday. Also, we recommend that he spend four hours to one day during the week with the alternate parent and split or alternate holidays with each parent.
2. That Ms. Latiolais be the domiciliary parent and decision maker regarding schooling and medical concerns. She has a long history of being the primary caretaker who made these decisions and her therapist views her as a competent parent. However, Ms. Latiolais and Mr. Griffith should discuss and attempt to reach a decision in all significant matters involving Cole.
3. That Cole continue to attend Ms. Shannon’s preschool given his positive adjustment to the environment. Also, that Cole attend the preschool every regular school day irrespective of the parent with whom he resides.
4. That Cole’s parents meet monthly with Dr. Bouillion, Cole’s therapist[,] to discuss parenting issues.
5. That Cole’s parents refrain from saying negative things about one another. In particular, we recommend that Mr. Griffith stop perpetuating accusations of Ms. Latiolais as a “batterer” or abuser. All concerns should be discussed with Ms. Latiolais present in meetings with Dr. Bouillion.
At trial, the above experts testified regarding their findings and recommendations, as did numerous fact witnesses attesting to various faults, misdeeds, and attributes of the parties. As for the experts, Dr. LeCorgne testified consistent with his report that Brad should be named the domiciliary parent with the goal being shared custody, while Drs. Kelley and Scott testified that Resa should be the domiciliary parent. Dr. Scott explained their reasoning for this as follows:
Well, we felt like that because of Brad’s lack of belief in her, that it was going to be difficult for them to work together, and that his attitude towards her was more negative than her attitude towards him. And we felt like she would be better able to factor in Brad being involved as a father than he would be able to factor in Resa being involved as a mother. We felt like she would be more likely to make decisions that would be balanced in that regard that would not try to exclude him.
Dr. LeCorgne testified he lifted the condition of supervised visitation in August of 2006. Dr. Bouillion testified as to the progress made by the parents, and testified while he thought Dr. LeC-orgne’s recommendation was reasonable, he was not going to make a recommendation about custody because he was Cole’s therapist. He gave his opinion that both parents needed to continue co-parenting |4classes, that both were making good progress, and that both needed to continue to see him until the conflicts were resolved. Margot Hasha testified that on May 10, 2006, she wrote a letter to Dr. LeCorgne recommending that Resa be allowed unsupervised visitation based on the progress she was making in individual therapy. She testified that while Resa admitted to her that she hit Cole with a wooden spoon and had “struck Lana,” she did not think Resa had an anger problem or was abusive to her children. Hasha testified that Resa had complied with everything the court had ordered, including 6 weeks of co-parenting classes, and 8 weeks of anger management classes, and that she had no concerns about her ability to be a safe and effective parent. She recommended that Resa continue to see her once a month and that she continue co-parenting with Dr. Bouillion.
The trial court described its findings about Brad’s behavior as follows:
The Court finds that the reason Brad instituted this instant action is because he was upset over the relationship between Resa and Mr. Chap-pell. Brad clearly desired to control Resa and her relationship with Mr. Chappell. Throughout this twelve (12) day trial, the Court observed Mr. Griffith to be calm and collected, never becoming angry or upset. The testimony of Lafayette Parish Sheriffs Deputy Ronald Robicheaux was very telling. On October 28, 2005, Deputy Robicheaux received a “keep the peace” call to supervise an exchange of Cole between Resa and Brad. In his testimony, Deputy Robichaux indicated that Brad was “pretty irate” because Resa had another man with her. He described Brad as screaming, hollering, and aggressive, though not in a physical way, as well as being upset and irrational. Although Brad claimed that this was because Mr. Chappell was videotaping the exchange, Deputy Robichaux testified that he never saw a camera in Mr. Chappell’s possession.
While the Court finds the parties are fairly even on the remaining factors, they have both fallen woefully short in encouraging a close and continuing relationship between the minor child and the other parent. Though Brad has claimed to want a good working relationship with Resa, and even paid for co-parenting therapy, he has engaged in an intentional pattern of conduct designed to place her under severe stress and destabilize her life. Also, Brad has appeared to follow this Court’s suggestions throughout this litigation while surreptitiously setting his own agenda. Further, Brad has shown a propensity to manipulate people, especially females, to fulfill his agenda of winning custody, while at the same time crushing Resa psychologically, financially, and criminally.
At the conclusion of a hearing in this matter on January 19, 2006, this Court strongly suggested to Brad that he distance himself from Jan Huffman, and her daughter, Jessica Harbin. Both of these women had overly | r,involved themselves in this situation by encouraging Lana to turn against her mother [in reporting abuse by Resa] and supporting Brad’s quest for sole custody. The Court stated:
I really think you need to be careful about Ms. Huffman. Make it very clear to her that she needs to, please, stay out of your business; you will stay our of hers.
In discussing Ms. Huffman and her daughter, the Court stated:
I don’t know if they are troublemakers, or she saw something that she thought she saw, or what the deal is. But again, I don’t think I would put a lot of stock in what Ms. Huffman and her daughter had to say about the situation from here on out, Mr. Griffith. You need to set some boundaries with them. There is a little too much going on with them.
After reviewing the massive numbers of telephone communications and hours of telephone calls between Brad and Jan Huffman, and Brad and Jessica Harbin, as well as the timing of these calls, the Court has no doubt that Brad not only ignored this Court’s strong suggestion, but actually used these women to attempt to get Resa in criminal trouble and cause her stress and anxiety as a tactic to win custody of Cole. Brad’s testimony that these many hours of phone calls were to discuss politics in St. Landry Parish and matters other than this custody litigation is simply not credible. Jan Huffman and Jessica Harbin have harassed Resa with false criminal charges of stalking and a false allegation that Resa tried to run Jessica Harbin over with her van. These complaints resulted in police officers being dispatched to Resa’s home while Cole was in her care. Also, the Court finds by a preponderance of the evidence that Brad encouraged Jan Huffman and Jessica Harbin to stalk Resa, and encouraged Jessica Harbin to make harassing telephone calls to her for which Ms. Harbin was criminally charged.
Also, this Court made it clear to both parties, after consulting with Dr. LeCorgne and Dr. Bouillion that the child should remain at Learning Express Daycare and should attend three (3) days per week instead of two (2) days per week. Again, Brad ignored this Court’s directive and sabotaged the situation by involving a private investigator, Robert Williamson, who appeared at the daycare with him on several occasions and who made inquiries concerning the owners of the daycare to Karl Breaux at Breaux’s Minute Mart. This resulted in the child being dismissed from the daycare center by the owners, Bernadette and Dale Roberts. At the recommendation of Dr. Bouillion, the child was then placed in Ms. Shannon’s 1 (¡Daycare and did very well there. Though the change in daycares may have actually benefitted the child, this does not excuse Brad’s behavior in ignoring both the recommendations of Dr. LeCorgne and Dr. Bouillion, as well as the directive of the Court, in order to carry out his own agenda believing the Roberts were somehow favorable to Resa. Yet another adjustment Cole had to endure.
The Court is also concerned about Brad’s efforts to turn Lana against her mother in the course of this litigation. Again, he used the help of his cohorts, Jan Huffman and Jessica Harbin, to accomplish his mission. The Court finds it wholly inappropriate to have involved Lana Latiolais in this custody dispute by attempting to drive a wedge between her and her mother. The Court views this behavior as further evidence of Brad’s pattern of manipulating women.
The Court also notes that Brad attempted to pressure Juvenile Officer Alex Montgomery, III, to make a finding of child abuse against Resa. The Court finds that Brad went so far as to have then State Senator Donald Cravins contact Officer Montgomery in an effort to obtain the result he wanted — a finding that Resa had physically abused Lana and Cole.
Though Brad was initially invited to join First Baptist Church by Mike Pla-sek, the Court finds that Brad was well aware that Resa had already been attending that church. However, he chose to become a member, in part, to garner favor with this Court and to sully Resa’s reputation. Once he joined the church, Brad set about to ingratiate himself with the pastor, Perry Sanders, by personally handing him donations comprised of cash and checks. Also, Brad wore a yellow bracelet to church which he explained to church members was a demonstration of support for victims of child abuse, which included Cole at the hands of Resa. Brad chose to sit in close proximity to Resa in the church sanctuary to place pressure on her during the church services, eventually resulting [in] her leaving the church and joining another local Baptist church. The Court also finds the statement made by the mother of Brad’s other child, Cindy Hebert, in a telephone conversation with attorney Julie Vaughn Felder which occurred on August 15, 2006 to be credible. In that conversation, Ms. Hebert indicated that the reason Brad became involved with First Baptist Church and Reverend Perry Sanders was he believed that this Court would be “crazy” to go against a minister of a church of 10,000 people in this community.
The Court also finds that the incident that occurred between Resa and Cindy Hebert at Opelousas General Hospital on November 30, 2005, was orchestrated by Brad. |7It is clear from the cell phone records that Brad spoke to Officer Roylis Brent Gallow of the Opelousas Police Department prior to appearing at the hospital. Brad admitted knowing Officer Gallow previously, though he denied speaking to him that day. Again, the Court finds that Brad’s testimony in this regard, as well as the testimony of Officer Gallow, is not credible. That morning Brad was bringing the minor child to Opelousas General Hospital for some lab tests associated with a urinary tract infection and was to meet Resa at the hospital. Because of their past acrimony, the Court believes Brad was confident that if he brought Cindy Hebert with him, that Resa would become upset and lose control. Further, he wanted to document Resa’s conduct by having Officer Gallow present as a witness. Again, this was a manipulation by Brad to bait Resa into acting inappropriately in a public place and to document her actions. Sadly, Resa predictably took the bait and actually battered Cindy Hebert in the process by shoving her with her elbows as Resa held Cole in her arms. Again, all of this occurred in the presence of the minor child, and was yet another traumatic experience for him involving parental conflict and police officers.
After considering the experts’ testimony, the testimony relating Brad’s behavior during the proceedings, and other testimony, the trial court finally rendered a final judgment granting Resa and Brad joint custody of Cole, with neither parent designated as the domiciliary parent. Custody was evenly shared and detailed in a document attached to the judgment. Brad and Resa were ordered to continue co-parenting sessions with Dr. Bouillion, and Greg Chappell was ordered to join them, and they were ordered to follow his recommendations with regard to co-parenting Cole. Brad was ordered to begin counseling with Dr. Lynn Aurich, Ph.D. and Resa was ordered to continue counseling with Margot Hasha. It was further ordered that neither party engage in any form of corporal punishment of Cole. In its Reasons for Judgment, the trial court explained that, in spite of Brad’s behavior, it was awarding the parties joint custody with no domiciliary parent because it was also concerned with some of Resa’s issues. Namely, the trial court found Resa has a “problem with dependency on men,” and that, she committed food stamp and medical benefit fraud in an attempt to become financially independent from Brad. Further, the trial court found that while Resa was pursuing her education, she did this “at the expense of her children” and “her ability to manage and care for the children was severely diminished, resulting in inappropriate discipline.” The trial court also found that while Resa’s use of a wooden spoon to discipline Cole “did not rise to the level of child abuse, ... [it] constitute^] excessive and inappropriate discipline.” The trial court found fault with her relationship with Greg Chap-pell and her approach to counseling. However, the court found both parties had made a lot of progress with the help of Dr. Bouillion, there was less conflict between them, and Cole was progressing very well. The court found “good cause exists not to name a domiciliary parent” as “[b]oth parents have deficiencies, and while they have shown improvement, there is still work to be done.”
Although suit was filed in October 2005, the trial court did not issue its final judgment until October 9, 2008. This three year delay was caused by six preliminary hearings which delayed the trial on the merits |suntil August 21, 2006, thirteen days of testimony spanning from August 21, 2006 to January 28, 2008, two months of having the case under advisement, and five more months for the trial court to execute a judgment incorporating its reasons for judgment into the final judgment.
The court of appeal reversed, and awarded Resa sole custody of Cole, even though she never asked for sole custody in her pleadings. Griffith v. Latiolais, 09-0824 (La.App. 3 Cir. 3/3/10), 32 So.3d 380. The court of appeal faulted the trial court for looking beyond Brad’s allegations for seeking custody, i.e., that Resa had engaged in sexual relations with Greg Chappell in Cole’s presence during the evacuation and that Resa had physically abused Cole, both of which the trial court found were not proven. When those allegations are set aside, the court of appeal found the balancing factors found in La. C.C. art. 134 clearly fell in Resa’s favor. Griffith, 32 So.3d at 389. Further, the court of appeal found subsequent events during the course of the trial “improperly expanded the issues and impacted the ultimate result.” Id. at 390. The court of appeal then summarized the trial court’s lengthy analysis of Brad’s bad behavior and scant findings of any bad behavior on the part of Resa. Id. at 390-92. Accordingly, the court of appeal found no manifest error in the trial court’s factual findings, but found error in its “equal balancing of Resa’s actions against Bradley’s transgressions.” Id. at 392. Particularly, the court of appeal stated:
In summary, the trial court found factually that Bradley is devious, manipulative, and retaliatory, and that these base characteristics particularly come to the surface in his dealings with women; that he had little or no involvement in Cole’s life prior to filing this suit; that not only was the initial suit without merit, but Bradley’s motivation for filing suit was not Cole’s best interest, but jealously [sic]; and that Bradley was engaged in a continuing campaign to discredit Resa and influence the trial court decision without regard to the dishonesty of his tactics or the falsity of his assertions. On the other hand, the trial court found that Resa bore the singular responsibility for raising Cole from his birth until after this litigation began; that during that time, she allowed and encouraged Bradley’s involvement in Cole’s life; that she began an attempt to better educate herself to become more independent of her manipulative former lover and to better care for her son; and that her retaliatory actions between the filing of suit and judgment were directly in response to Bradley’s antics.
Id. at 893-94. The court of appeal found that the trial court erred in awarding Brad an “equal-sharing custody arrangement-a judgment that is inconsistent when compared to the factual findings.” Id. at 394.
The court of appeal found that the evidence was clear and convincing that sole custody be awarded to Resa and faulted the trial court for using Dr. Bouillion to regulate Brad’s behavior and substituting resolution of the parents’ problems for Cole’s best interest. Id. at 396, 398. The court of appeal found that although Resa did not ask for sole custody in her initial pleading, “the ‘best interest’ requirement of La. Civ. Code art. 132 mandated an award of sole custody.” Id. at 394, n. 18. Finally, the court of appeal found the trial |9court erred in “mandating] that the parties delegate their right to make parental decisions to mental health care professionals on a continuing basis.” Id. at 397. It found this to be error because the statutes limit the involvement of expert testimony to assisting the trial of fact as allowed by La. C.E. art. 702 and continued professional involvement is only allowed by La. R.S. 9:358.1 whereby a parenting coordinator may be appointed to assist the parties in resolving disputes but only “if the court has previously entered a judgment establishing child custody, other than an ex parte order.” Id. at 397-98. The court noted that the comments to La. R.S. 9:358.1 indicate the “purpose of this limitation is to prevent the court from using the parenting coordinator process as a means of abdicating its responsibility to make the initial custody determination,” which it found the trial court had done in this case. Id. at 398. Further, the court of appeal reversed the portion of the judgment prohibiting corporal punishment and assessed all costs against Brad. Id. at 398-99. Finally, Brad was granted visitation as follows: the first and third weekends of each month from 6:00 p.m. on Friday until 8:00 p.m. on Sunday of each weekend; equally shared holiday visitation as provided by the trial court; and three weeks summer visitation beginning at 6:00 p.m. on the first Friday of July and ending at 6:00 p.m. on the third Sunday of July. Id. at 399^400.

The Louisiana Supreme Court “granted Brad’s writ application to determine whether the court of appeal erred in granting Resa sole custody of Cole, especially where she did not ask for sole custody in her pleadings.” Id. at 1067. Ultimately, the supreme court reversed this court’s award of sole custody to Resa and found that the trial court’s grant of joint custody was not manifestly erroneous. Further, the supreme court designated Resa as the domiciliary parent. The supreme court upheld both this court’s reversal of the trial court’s order that “neither party shall engage in any form of corporeal punishment of the minor whatsoever” and the assessment of one hundred percent of the court costs to Brad. Brad filed a motion for clarification of the supreme court’s ruling, which was granted. In the order granting the motion for clarification, the supreme court stated that this “case is remanded to the trial court to reconsider its joint custody implementation plan in light of this Court’s designation of Resa Latiolais as the domiciliary parent and to amend the plan if it deems appropriate.” Griffith v. Latiolais, 10-754 (La.11/17/10), 54 So.3d 1092, 1093.

On remand, the trial court reconsidered its previous joint custody implementation plan and changed it to provide that Resa would be named domiciliary parent, deleted a provision that read “Neither parent may change the current health care providers without the agreement of both parties or further orders of this Court,” 1 inchanged a provision regarding the procedure should Brad disagree with medical and dental care for Cole that was of a non-emergency nature, and deleted a provision that provided for Cole’s attendance at Ascension Day School “unless another school is mutually agreed upon by the parties.”

Resa now appeals. She argues that the trial court abused its discretion in reinstating its original award of shared custody between her and Brad on a fifty-fifty basis rather than a schedule of visitation with Cole spending time primarily with her, and with Brad having alternating weekends, one day in the off week, and alternating holiday periods. She also argues that the trial court included several provisions in the joint custody plan that were inconsistent with her status as domiciliary parent.

DISCUSSION

We previously set forth the standard of review in this case as follows:

It is well settled that an appellate court cannot set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. Each child custody case must be viewed in light of its own particular set of facts and circumstances with the paramount goal of reaching a decision that is in the best interest of the child. Barberousse v. Barberousse, 556 So.2d 930 (La.App. 3 Cir.1990). The best interest evaluation is fact-intensive and requires the weighing and balancing of factors favoring or opposing custody of the competing parties on the basis of the evidence presented in each case. Romanowski v. Roma-nowski, 03-124 (La.App. 1 Cir. 2/23/04), 873 So.2d 656. The trial court is vested with broad discretion in deciding child custody cases and its decision will not be disturbed absent a clear abuse of discretion. Bagents v. Bagents, 419 So.2d 460 (La.1982); Stephens v. Stephens, 02-402 (La.App. 1 Cir. 6/21/02), 822 So.2d 770. However, as recognized by our supreme court, “[a]n award of custody is not a tool to regulate human behavior.” Everett v. Everett, 433 So.2d 705, 708 (La.1983).

Griffith, 32 So.3d at 386.

Both parties in this case are attempting to have us use the award of custody as a “tool to regulate human behavior.” This we cannot do. Again, as we did on our earlier review, we find no manifest error in the factual findings of the trial court. Indeed, our supreme court has upheld this finding. However, the supreme court has also provided guidance in that it reinstated the trial court’s original award of joint | n custody and modified that only insofar as it named Resa as the domiciliary parent. Further, upon motion for clarification, the supreme court explained that the case should be remanded to the trial court for reconsideration of the joint custody implementation plan. But, the supreme court stated that the plan need only be amended if the trial court deemed such amendment appropriate. The original joint custody implementation plan provided that physical custody of Cole be shared by the parties on an alternating weekly schedule from Friday at 6:00 p.m. until the following Friday at 6:00 p.m., with alternating holidays as provided in the plan. The supreme court, by reinstating this plan, inherently found no abuse of discretion by the trial court in the award of shared physical custody of Cole. Accordingly, we cannot now reverse the trial court’s award of fifty-fifty shared physical custody.

Resa further alleges that several provisions of the joint custody implementation plan are inconsistent with her status as domiciliary parent and thereby weaken her position. Specifically, she finds fault with the following fourteen provisions: (1) requiring that she provide forty-eight hours advance notice to Brad before spending the night away from home and providing a name and location where she and Cole will stay and a telephone number where they can be reached; (2) requiring that she offer Brad the right to baby-sit if she is away from home overnight; (3) requiring her to provide advance notice if a babysitter will be staying with Cole overnight; (4) requiring her to provide reasonable access to Cole by Brad when Cole is in her custody; (5) requiring her to allow Brad to visit with Cole during her custodial periods; (6) requiring her to communicate concerning all factors affecting the health, education, and welfare of the child; (7) requiring her to provide Brad all medical and other information regarding Cole’s health and welfare upon receipt; (8) requiring Resa and Brad to discuss all of the information exchanged between them; (9) requiring her not to ignore the authority and input of Brad by failure to communicate; (10) requiring that Cole receive treatment from doctors specified by the trial court; (11) prohibiting Resa’s spouse from attending Cole’s healthcare appointments “until these parties have reached a more effective level of communication and civil | ^discourse;” (12) requiring extracurricular activities to be by mutual agreement; (13) granting Brad the natural co-tutorship of Cole; and (14) granting Brad authority to administer Cole’s property.

Louisiana Revised Statutes 9:335(B)(3) provides, in part, that “[t]he domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise.” This recognizes that the trial court has discretion in placing conditions upon the decision making authority of the domiciliary parent. We further note that all of the provisions cited by Resa are made reciprocal by the trial court’s plan. We do not find that any of these provisions are outside the trial court’s discretion or inconsistent with the trial court’s power to create a joint custody implementation plan.

DECREE

For all of the foregoing reasons, the trial court’s judgment is affirmed. All costs of this appeal are assessed to Defendant/Appellant, Resa Latiolais.

AFFIRMED.