source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Sergeant CAULFIELD.
    No. 10-KA-769.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Kenneth P. Bordelon, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Sergant Caulfield, In Proper Person, Kinder, LA, Defendant/Appellant.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

| ^Following the denial of his motions to suppress evidence and statements, defendant Sergeant Caulfield pled guilty to possession of a firearm by a convicted felon and possession with intent to distribute heroin, reserving his right to challenge the trial court’s ruling on his motions to suppress. On appeal, defendant claims that the trial court erred in denying his motions to suppress. For the reasons that follow, we affirm defendant’s convictions and sentences, as amended, and remand for correction of errors patent.

PROCEDURAL BACKGROUND

On September 16, 2008, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession of a firearm by a convicted felon in violation of LSA-R.S. 14:95.1 (Count One), and possession with intent to distribute heroin in violation of LSA-R.S. 40:966(A) (Count Two). Defendant pled not guilty to both charges. However, following the denial of his motions to suppress, on July 20, 2010 defendant pled guilty to both counts pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced to fifteen years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on Count One. On Count Two, defendant was sentenced to twenty-five years imprisonment at hard labor, with the first five years being imposed without the benefit of parole, probation, or suspension of sentence. On this same date, the State filed a multiple offender bill of information against defendant. Defendant admitted to the allegations of the multiple bill. The trial court vacated the sentence imposed on Count Two and resentenced defendant as a second felony offender to twenty-five years imprisonment at hard labor without the benefit of probation or suspension of sentence, with the first five years to be without the benefit of parole, probation or suspension of sentence. This enhanced sentence was ordered to run concurrently with Count One, as well as with any other sentence defendant “may have, including a violation in 362-784.” This timely appeal followed.

FACTS

Since defendant pled guilty, the only facts contained in the record are those given by the State during the guilty plea colloquy, to-wit:

[I]f Mr. Caulfield had gone to trial, the State of Louisiana would have proven beyond a reasonable doubt that on July 27th of the year 2008, he did knowingly and intentionally possess a firearm which was a .9 millimeter weapon. And that he is one in the same individual who has a previous felony conviction for Attempted Second Degree Murder in Case Number: 871-260 out of Section “G [sic] of Orleans Parish Criminal District Court. That’s with regard to Count One.
With regard to Count Two, had Mr. Caulfield gone to trial, the State of Louisiana would have proven beyond a reasonable doubt that on July 27, 2008, he did knowingly and intentionally possess a [ controlled dangerous substance which was in fact heroin, and he had the intent to distribute that heroin.
Both of these incidents occurred within the Parish of Jefferson.

DISCUSSION ON ASSIGNMENTS OF ERROR

In both his counseled and pro se briefs, defendant argues that the trial court erred in denying his motions to suppress evidence and statements because he was illegally detained and arrested when Sergeant Palumbo of the New Orleans Police Department (“the NOPD”) went to his home in Jefferson Parish without a Jefferson Parish warrant. Defendant argues that he was arrested after Sergeant Palumbo claimed to have seen him discarding heroin and that no Jefferson Parish or federal agents were present at that time. Defendant claims that the officers were without jurisdiction and went to his residence under the guise of attempting to see if he lived at the residence and were not in pursuit nor did they just happen upon the location. Defendant concludes that the trial court ruling on his motions to suppress should be reversed and that he should be allowed to withdraw his plea and have his case dismissed.

The State responds that these issues were fully explored in a pre-trial writ to this Court, where this Court held that the trial court did not abuse its discretion in denying defendant’s motion to suppress evidence, noting that the Louisiana Supreme Court denied writs in the matter. The State further responds that although defendant contends that the New Orleans Police officers were without jurisdiction lsto arrest defendant in Jefferson Parish, the officers were only in Jefferson Parish to see if defendant resided at the address and to question him as to his involvement in certain shootings. The State explains that the officers being outside defendant’s residence did not violate defendant’s constitutional rights, and that when defendant discarded the heroin, the officers had a right to retrieve the abandoned heroin and make a citizen’s arrest of him. The State also contends that the officers were justified in securing the house prior to the issuance of the warrant and that the residence was not searched until the search warrant was obtained. The State concludes that the evidence was constitutionally seized and there was no error in the trial court’s ruling denying the motion to suppress evidence. The State also contends that there was no error in the trial court’s ruling denying the motion to suppress defendant’s statements because the statements were freely, knowingly, and voluntarily given after defendant was advised of his Miranda rights.

At the suppression hearing, the State presented the testimony of Detectives William Roniger and Kurt Zeagler of the Jefferson Parish Sheriffs Office (“the JPSO”) and Sergeant Samuel Palumbo of the NOPD.

Sergeant Palumbo testified that defendant was identified as a possible perpetrator in several shootings in the Carrollton area of New Orleans that had been under investigation. Further, an Orleans Parish arrest warrant had been issued for defendant’s arrest for aggravated assault and felon in possession of a firearm. There was also a federal warrant out for defendant. On July 27, 2008, Sergeant Palumbo followed his detectives to defendant’s residence at 2801 Hawkston Street in Jefferson Parish to ascertain if in fact defendant had been staying there. Sergeant Palum-bo testified that the main purpose of going there was | fi“to see if he was out there, of course, for the arrest warrant, and to possibly interview him about the shootings that had been taking place.”

When the officers arrived at the residence, in both marked and unmarked units, Sergeant Palumbo observed defendant exit the porch of the residence and walk toward a vehicle. When defendant noticed the officers’ presence, Sergeant Palumbo observed defendant immediately discard a bag of heroin to the ground. Sergeant Palumbo never lost sight of the bag and recovered it. Defendant was advised of his Miranda rights and was arrested for having possession of the heroin. Sergeant Palumbo testified that defendant appeared to understand his rights, never asked any questions, and did not request a lawyer. When asked if he owned a gun, defendant told Sergeant Palumbo that he did and that the weapon and additional heroin were inside of the residence. Sergeant Palumbo testified that a federal agent, Agent Jason Quick, arrived shortly after the NOPD. Sergeant Palumbo testified that defendant was arrested on the Orleans Parish warrant, and according to Agent Quick, he was arrested on federal charges as well.

Sergeant Palumbo testified that defendant stated that his mother and stepfather were inside of the residence. After receiving no response to their knock on the door, several officers entered the residence through the unlocked door. Sergeant Pa-lumbo explained that the occupants were located in the rear of the residence and that the residence was secured to avoid injuries and destruction of evidence; the residence was not searched at that time, however. Once inside, Sergeant Palumbo observed a handgun with an extended magazine on the coffee table in the living room. Sergeant Palumbo contacted Detective Roniger of the JPSO to advise him of the incident and to obtain a search warrant for the residence.

Detective Roniger testified that Sergeant Palumbo told him that the NOPD investigators had obtained an arrest warrant for defendant and the NOPD went to 17defendant’s last known address at 2801 Hawkston Street in Jefferson Parish, where they observed defendant outside of the residence. * Sergeant Palumbo informed him that after defendant discarded a bag of heroin to the ground, he was detained, and his residence was secured. Based on the information that he received from Sergeant Palumbo, Detective Roni-ger obtained a search warrant for the residence. After obtaining the search warrant, Detective Roniger contacted Detective Zeagler, who was already at the residence, and advised him that the search warrant had been obtained. Detective Roniger proceeded to the residence to participate in the search.

Detective Zeagler testified that when he arrived at the residence, he observed defendant, who was handcuffed, sitting “on the stoop in front of his house.” Upon arrival, he noted that Sergeant Palumbo, several NOPD detectives, and a FBI agent were present. Sergeant Palumbo handed him a plastic bag that contained smaller bags of brown powder and a foil of brown powder. Detective Zeagler advised defendant of his Miranda rights and defendant acknowledged that he understood these rights. He did not ask questions and did not request a lawyer. At that point, Detective Zeagler questioned defendant. Defendant admitted that the bag was his, that it was heroin, and that he had thrown it down when he saw the police approaching him. In response to questioning, defendant stated that there was another bag with heroin and a firearm inside the house. Detective Zeagler explained that at this time, the residence had not been searched but that the NOPD had secured the residence. He testified that the residence was not searched until after he was notified by Detective Roniger that the search warrant had been obtained.

Heroin was located in the living room of the residence in the curtains, where defendant had told Detective Zeagler it would be found. A loaded handgun, a |Rdigital scale, defendant’s driver’s license, mail that belonged to defendant, defendant’s house keys, and a cell phone were found on the coffee table in the living room.

Defendant was transported to the detective bureau, where he was re-advised of his rights and waived his rights in writing. Detective Zeagler testified that he did not force or coerce defendant, or offer him anything in exchange for his statement. Defendant did not ask any questions or request a lawyer. He did not seem intoxicated or impaired. He gave a taped statement to Detective Zeagler, which was transcribed. Detective Zeagler testified that he was aware of a federal arrest warrant and a New Orleans arrest warrant for defendant, but stated that he had not seen either. He also admitted that he did not see the search warrant before he entered the residence.

Defense counsel argued that the NOPD had no reason to be at defendant’s residence and had no jurisdiction to serve their warrant. As such, counsel concluded that anything that followed would be considered part of an illegal search and should be suppressed. The State responded that Sergeant Palumbo was investigating shootings and went to the location to see if defendant was there when he observed defendant discard an object that was determined to be heroin. The State argued that defendant was then arrested for possessing the heroin and at some point was also arrested on the outstanding warrants. It contended that the search warrant was properly obtained and the search revealed the additional evidence, which included a handgun and more narcotics. The State argued that the arrest was lawful and the motion to suppress evidence should be denied. The State also argued that the motion to suppress defendant’s statements should be denied because defendant was properly advised of his rights and appeared to have understood his rights before giving the statements. In denying the motion to |asuppress the statements, the trial court found that the statements were not unconstitutionally obtained and were not obtained by force, threats, or coercion. Further, the trial court denied the motion to suppress evidence finding that the evidence was constitutionally obtained and that the absence of a Jefferson Parish deputy did not form a basis for granting the motion to suppress evidence. The judge explained that the officers saw a crime, seized the evidence, and at some time thereafter a federal agent was present with a warrant. Defendant objected and noticed his intent to seek writs in the matter.

Defendant’s motion for appeal specifies that he was appealing the denial of his pretrial “Motion(s) to Suppress and finding of probable cause” on May 29, 2009, pursuant to State v. Crosby, 338 So.2d 584 (La.1976). Further, during the guilty plea colloquy for Counts One and Two, it appears that the motions to suppress evidence and statements were reserved for review pursuant to State v. Crosby.

Defendant sought review of the denial of his motion to suppress evidence by this Court. On July 10, 2009, this Court denied writs in case number 09-K-482, finding the following: •

Relator seeks review of the trial court’s denial of his motion to suppress. He contends that the New Orleans police officers who went to his residence in Jefferson Parish to arrest him on an arrest warrant issued by Orleans Parish were without jurisdiction, therefore any evidence seized after the New Orleans police were at his residence should be suppressed.
On the presentation made, we find no error in the trial court’s denial of relator’s motion. See, LSA-C.Cr.P. art. 214; State v. Jarvis, 97-1174, (La.App. 5 Cir. 4/9/98), 710 So.2d 831. Accordingly, this writ application is denied.

State v. Caulfield, 09-K-492 (La.App. 5 Cir. 7/10/09) (unpublished writ disposition).

Defendant’s writ to the Louisiana Supreme Court was denied. State ex rel. Caulfield v. State, 09-1853 (La.5/7/10), 34 So.3d 858.

In his writ application to this Court, defendant challenged the motion to suppress evidence only. Under the doctrine of “law of the case,” an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. State v. Doussan, 05-586, p. 7 (La.App. 5 Cir. 2/14/06), 924 So.2d 338, 339 n. 4, writ denied, 06-0608 (La.10/13/06), 939 So.2d 372. However, application of the law of the case doctrine is discretionary and the denial of a supervisory writ application does not bar reconsideration of an issue on appeal, nor does it prevent the appellate panel from reaching a different conclusion on the issue. State v. Lathers, 09-20, p. 3 (La.App. 5 Cir. 5/26/09), 15 So.3d 1068, 1070, writ denied, 09-1341 (La.2/12/10), 27 So.3d 841. Reconsideration of a prior ruling is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. State v. Jacobs, 04-1219, p. 7 (La.App. 5 Cir. 5/31/05), 904 So.2d 82, 88, writ denied, 05-2072 (La.4/28/06), 927 So.2d 282, cert. denied, 549 U.S. 956, 127 S.Ct. 385, 166 L.Ed.2d 276 (2006).

| nIn the case at bar, this Court does not have the benefit of further information discovered at trial because the case did not proceed to trial; however, this Court does have the exhibits from the suppression hearing, which are a part of the appellate record but were not included as attachments to defendant’s writ application. Nevertheless, the focus of defendant’s argument involves defendant’s arrest and whether the NOPD had jurisdiction in this matter. Defendant contends that because of the lack of jurisdiction, all evidence that followed should be suppressed. However, we find that the exhibits from the suppression hearing, which include the search warrant and its application and return, the consent to search form for defendant’s buccal swab, the rights of arrestee form, and defendant’s transcribed statement, are not necessary for consideration of the raised issues. For these reasons, we decline to reconsider this Court’s prior ruling on the same motion to suppress evidence issue since there is no relevant, additional information to consider. Defendant fails to present any new arguments, jurisprudence, or evidence to warrant reconsideration of the same issue or to suggest that the prior writ determination was patently erroneous, or that it produced unjust results. Accordingly, we find that the ruling madfe regarding defendant’s pretrial writ application should not be disturbed. See State v. Louis, 05-141, p. 5 (La.App. 5 Cir. 7/26/05), 910 So.2d 464, 467 (where this Court declined to reconsider its prior ruling on the same motion to suppress issue since the defendant pled guilty before any trial testimony was taken, there was nothing additional for it to consider, and the defendant failed to present evidence to show that this Court’s prior disposition was patently erroneous or produced unjust results); State v. Hollimon, 04-1195, p. 4 (La.App. 5 Cir. 3/29/05), 900 So.2d 999, 1001 (where this Court declined to reverse its previous ruling, recognizing that it had thoroughly analyzed the issue raised by the defendant previously and that there was no new evidence to warrant reconsideration of the issue).

A review of defendant’s writ application indicates that denial' of the motion to suppress defendant’s statements was not challenged in the writ application, and therefore, this Court’s prior ruling would not have included consideration of the motion to suppress defendant’s statements. On appeal, however, we find that this issue has been abandoned. Under Rule 2-12.4 of the Uniform Rules, Courts of Appeal, all specifications or assignments of error must be briefed, and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed. State v. Tranchant, 10-459, p. 4 (La.App. 5 Cir. 11/23/10), 54 So.3d 730. Restating an assigned error in brief without argument or citation of authority does not constitute briefing. State v. Lauff, 06-717, p. 9 (La.App. 5 Cir. 2/13/07), 953 So.2d 813, 819.

In State v. Fernandez, 03-987, p. 9 (La.App. 5 Cir. 12/30/03), 864 So.2d 764, 770, this Court found that the defendant failed to brief his position where he merely asserted his position, but failed to include argument or any legal citation in support thereof. The Fernandez court found that the assertions presented nothing for review on appeal.

In State v. Young, 07-988, pp. 9-10 (La.App. 5 Cir. 6/19/08), 988 So.2d 759, 764-65, writ denied, 08-1599 (La.3/27/09), 5 So.3d 139, this Court determined that the defendant only briefed his motion to suppress evidence and that his assignment of error regarding the motion to suppress statement contained no argument, and therefore, nothing was presented for this Court to review on the motion to suppress statement issue.

In the present case, defendant and his counsel contend that it was alleged that he stated that the drugs and gun found inside the residence was his. However, defendant has failed to brief his position regarding the denial of the motion to suppress his statements with argument or legal citation. Nothing is therefore presented for review on appeal.

ERRORS PATENT DISCUSSION

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. This review indicates there are discrepancies between the commitment and the transcript. Generally, the transcript prevails where there is an inconsistency between the minute entry and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983).

The commitment reflects that on Count One, defendant was convicted of “CONVICTED FELON WITH A WEAPON— Cocaine” in violation of LSA-R.S. 14:95.1. Defendant did plead guilty to a violation of LSA-R.S. 14:95.1, but this case did not involve cocaine. Although the bill of information indicates that defendant was in possession of a firearm after having previously been convicted of attempted second degree murder and possession with intent to distribute cocaine, 114the prior conviction used for this offense was attempted second degree murder. Thus the term “cocaine” should not be reflected on the commitment in describing this offense. On remand, the trial court is ordered to correct the commitment to omit the term “cocaine” and to reflect that defendant was convicted of possession of a firearm by a convicted felon.

Additionally, there is an error patent involving the enhanced sentence. LSA-R.S. 40:966(B)(1) provides that for possession with intent to distribute heroin, a defendant is subject to imprisonment with at least five years to be served without the benefit of probation or suspension of sentence. In the present case, the trial judge imposed an enhanced sentence of twenty-five years imprisonment at hard labor, with the entire sentence being without the benefit of probation or suspension of sentence and with the first five years without benefit of parole, probation, or suspension of sentence. LSA-R.S. 15:529.1(G) provides that the enhanced sentence shall be without the benefit of probation or suspension of sentence. The restrictions imposed on parole eligibility in multiple offender sentences under LSA-R.S. 15:529.1 are those called for in the reference statute. See State v. Bruins, 407 So.2d 685, 687 (La.1981) (“[T]he conditions imposed on the sentence are those called for in the reference statute.”). The underlying statute in the present case (LSA-R.S.40:966(B)(1)) does not provide for the prohibition of parole. As such, defendant’s enhanced sentence should not have been imposed with the parole restriction. See State v. Payne, 10-KA-46 and 10-KA-47 (La.App. 5 Cir. 1/25/11), 59 So.3d 1287, 1295. Accordingly, we amend defendant’s enhanced sentence to delete the prohibition on parole and remand the case to the trial court for correction of the commitment. See LSA-C.Cr.P. art. 882(A); Payne, supra.

For the foregoing reasons, this matter is remanded for the limited purpose of correcting the commitment. The district court is hereby ordered to make the | ^entries in the minutes reflecting these changes and to direct the clerk of court to transmit the original of the corrected minute entry to the officer in charge of the institution to which the defendant has been sentenced. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

CONCLUSION

The defendant’s convictions and sentences are affirmed as amended. This matter is remanded for the limited purpose of correcting the commitment as set forth above.

CONVICTIONS AND SENTENCES AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS

      . It is noted that defendant’s first name is spelled both as "Sergeant” and “Sergant” throughout the record.

      . Case No. 362-784 is an Orleans Parish proceeding in which defendant was previously convicted.

      . Defendant filed a handwritten, pro se supplemental brief on November 12, 2010. Defendant filed a typed version of this brief on December 2, 2010. On this date, this Court ordered that the latter brief be substituted for the original-filed brief. In his brief, defendant argues that the trial court erred in denying his motion to suppress evidence and statements because the officers lacked jurisdiction to arrest him and were not in-close pursuit at the time of the arrest. Defendant's arguments are essentially the same as those raised in the counseled brief. Specifically, defendant argues that the officer in his case unreasonably exceeded his lawful authority and the evidence should be suppressed to enforce the legislative directive of territorial limitations. Defendant also argues that the evidence seized from defendant that resulted from the execution of the warrant that relied on the actions of the New Orleans officers should be suppressed. Defendant notes that a denial on a pre-trial writ does not preclude the issue from being addressed on direct appeal.

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

      . Of note, on July 20, 2010, just prior to the guilty plea colloquy, defense counsel offered a stipulation as part of the plea agreement, which was accepted by the State. The stipulation was that if Agent Jason Quick from the Federal Bureau of Investigations had been called to testify at the hearing on the motions, he would have testified that he arrived on the scene after the NOPD officers had arrived and secured the residence. It was further stipulated that the NOPD investigators were not at the residence at the direction of the FBI.

      . Although defense counsel appears to have indicated during the colloquy that there was no issue with the motion to suppress statement, it appears that counsel and the judge clarified that the issue was with "the suppression of the evidence and the legality or illegality of the arrest and confession that went along with it.”

      . Further, defendant requested that the Louisiana Supreme Court reconsider its May 7, 2010 ruling, and reconsideration was denied on August 18, 2010. State ex rel. Caulfield v. State, 09-1853 (La.8/18/10), 42 So.3d 386.

      . According to Rule 2-1.14 of the Uniform Rules — Courts of Appeal, “[a]ny record lodged in this court may, with leave of court, be used, without necessity of duplication, in any other case on appeal or on writ.” This Court has previously considered a writ application filed in this Court in a subsequently filed matter. See State v. Bradley, 02-1130 (La.App. 5 Cir. 3/11/03), 844 So.2d 115, writ denied, 01-1973 (La.6/14/02), 817 So.2d 1151. The writ application in this case focuses on the motion to suppress evidence. However, it is noted that the written notice of intent reflects that defendant was seeking writs from the denial of the motion to suppress evidence and statement. Further, appellate counsel’s brief and defendant’s pro se supplemental brief suggest that the writ application included challenges to both the suppression of the evidence and statements. Likewise, the State suggests both were involved.

      . In defendant’s pro se supplemental brief, he suggests that his counsel did not argue in the writ application that the officer was acting without jurisdiction. However, it is evident from this Court’s disposition in case number 09-K-482 that this Court considered the jurisdictional argument.

      . In denying writs in this matter, the panel relied on LSA-C.Cr.P. art. 214, which provides that "[a] private person may make an arrest when the person arrested has committed a felony, whether in or out of his presence.” The panel also relied on State v. Jarvis, 97-1174 (La.App. 5 Cir. 4/9/98), 710 So.2d 831, writ denied, 98-2219 (La.1/8/99), 734 So.2d 1222, a case in which the defendant argued that his arrest was illegal because it occurred outside of the deputies’ territorial jurisdiction. This Court determined that the defendant's arrest by a deputy from a neighboring parish was authorized as an arrest by a private citizen. Id. The NOPD officer in the present case observed defendant discard a bag of heroin to the ground in his presence in Jefferson Parish and had a right to arrest defendant after observing defendant abandon the heroin.

      . In Louis, supra, this Court noted that the suppression hearing transcript was attached to the writ application and was considered. Id., 05-141 at 5, 910 So.2d at 467. In the present case, the suppression hearing transcript was also attached to the writ application.

      . Having already concluded that the NOPD had authority to arrest defendant, even if we were to address the merits of defendant's argument regarding the suppression of his statements, we would find that defendant's statements were made after a lawful arrest and were otherwise admissible.

      . It is noted that the enhanced sentence was ordered to run concurrently with the sentence imposed for Count One — a 15-year sentence which was imposed on defendant without the benefit of parole, probation, or suspension of sentence. Because of this, ultimately, the first five years of the sentence defendant serves would actually be without the benefit of parole. Therefore, the result of the correction is for purposes of mere accuracy.


author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Gregory NICHOLAS.
    No. 10-KA-866.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, Donaldsonville, LA, for PlaintiffiAp-pellee.
    Gwendolyn K. Brown, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, FREDERICKS HOMBERG WICKER, and HILLARY J. CRAIN, Pro Tempore.
   MARION F. EDWARDS, Chief Judge.

[ gDefendant/appellant, Gregory Nicholas (“Nicholas”), appeals his convictions and sentences on two counts of criminal activity-

The State filed a bill of information charging Nicholas with obstruction of justice in violation of La. R.S. 14:130.1 (Count I) and second degree battery (Count II). Nicholas entered a plea of not guilty to both charges and waived his right to a jury trial. On April 30, 2008, a bench trial commenced. At the end of trial, the trial judge found Nicholas guilty as charged as to Count I, and guilty of the lesser, included charge of simple battery on Count II.

Nicholas filed a motion for post-verdict judgment of acquittal that was denied on the same day as sentencing. The trial court sentenced Nicholas to five years with the Department of Corrections on Count I and six months in parish jail |son Count II, to run concurrently, giving credit for time served. Additionally, on that day, Nicholas gave oral notice of his intention to file a motion for appeal. This timely appeal follows.

FACTS

The pertinent facts were deduced from testimony of the State’s witnesses at trial. The testimony indicates that Charles Parent testified against Nicholas at a trial in St. James Parish on a misdemeanor charge relating to a visit Nicholas made to Mr. Parent’s girlfriend. Just after Mr. Parent left the courthouse, there was an altercation between him and Nicholas in which Mr. Parent was beaten by Nicholas.

Mr. Parent testified that he was at the St. James Parish Courthouse testifying in a criminal case against Nicholas. After his testimony, the trial judge continued the trial. As Mr. Parent left the courtroom he passed Nicholas, but he did not make eye contact with him. Shortly after Mr. Parent left the courtroom, he felt a tap on his shoulder. He turned to find Nicholas’ fist coming at his face. Nicholas struck Mr. Patent twice, once in the right eye and once in the nose. Mr. Parent was rendered unconscious and fell to the concrete.

Joseph Matassa, of the St. James Sheriffs Office, provided courtroom security on the day of the incident. He testified that Charles Parent testified in a trial that day. The defendant in that trial was Nicholas. Mr. Matassa noticed tension between the two men and also recalled that the tidal judge addressed Nicholas as being “out of order once or twice.” Because of the tension, Mr. Matassa followed Nicholas out of the courtroom. Mr. Matassa witnessed Nicholas punch Mr. Parent twice, knocking him to the ground. Nicholas got on top of Mr. Parent and continued to strike him until Mr. Matassa intervened. Several other police officers, alerted to the incident, ran over to help stop Nicholas from attacking Mr. Parent.

LAW AND ANALYSIS

On appeal, Nicholas assigns four errors. In the first, he asserts the evidence presented at trial was insufficient to convict him on the obstruction of justice charge. In the other three errors, Nicholas challenges his sentence as excessive and not in conformity with La.C.Cr.P. art. 894.1. Nicholas also asserts his motion to reconsider sentence should have been granted. SUFFICIENCY OF EVIDENCE

In his argument on the issue of sufficiency of evidence, Nicholas makes the point that the bill of information charged him with obstruction of justice “by tampering with evidence with the specific intent of distorting the results of any criminal investigation” in violation of La. R.S. 14:130.1. Nicholas asserts that there was no evidence that he tampered with evidence or that he was guilty under that statute as set forth in the bill of information.

In the State’s opening arguments, it was alleged that Nicholas was guilty of obstruction of justice because he retaliated against a witness who testified against him in a criminal proceeding. At the end of trial, the trial judge found Nicholas guilty of that crime in violation of La. R.S. 14:130.1(A)(3).

While we agree that there is no evidence that Nicholas tampered with evidence in a criminal investigation as charged in the bill of information, that does not end our inquiry. The issue here is whether the bill of information adequately informed Nicholas of the charge against him, not whether the evidence presented was sufficient to prove the crime for which he was convicted.

Article 464 of the Code of Criminal Procedure provides that the indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. However, a defendant may not raise the sufficiency of an indictment for the first time after conviction, especially Uwhen the charging document fairly informed him of the charge against him and the alleged defect did not prejudice him. Further, a defendant must raise a claim that the indictment does not provide adequate notice of the charge prior to trial by filing a bill of particulars, and the failure to do so waives the claim. The time for testing the sufficiency of an indictment or bill of information is before trial by way of motion to quash or an application for a bill of particulars. A post-verdict attack on sufficiency of an indictment should be rejected unless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable offense.

We find no merit in Nicholas’ argument on insufficiency of the evidence as it relates to the actual charge made in the bill of information. Nicholas was fully informed of the facts the State intended to show on the charge of obstruction of justice. Further, there was no objection to the sufficiency of the bill of information at trial.

Nicholas also asserts there is insufficient evidence to convict him of obstruction of justice for retaliation against a witness in a criminal trial. Nicholas specifically argues that, while the evidence shows Nicholas punched Mr. Parent outside of the courthouse, it failed to exclude the reasonable hypothesis of innocence tendered by the defense that the fight was simply part of a continuing feud between the two men.

Nicholas was convicted of obstruction of justice in violation of La. R.S. 14:130.1(A)(3), which provides;

A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential | present, past, or future criminal proceeding as hereinafter described:
(3) Retaliating against any witness, victim, juror, judge, party, attorney, or informant by knowingly engaging in any conduct which results in bodily injury to or damage to the property of any such person or the communication of threats to do so with the specific intent to retaliate against any person for:
(a) The attendance as a witness, juror, judge, attorney, or a party to any criminal proceeding or for producing evidence or testimony for use or potential use in any criminal proceeding, or
(b) The giving of information, evidence, or any aid relating to the commission or possible commission of a parole or probation violation or any crime under the laws of any state or of the United States.

The knowledge requirement of the above-cited statute is met if the perpetrator merely knows that an act “reasonably may” affect a criminal proceeding. The statute does not require the criminal proceeding actually be affected; the perpetrator just must know and understand that the act reasonably may affect the proceeding.

The second requirement relevant to this case is that defendant retaliated against the victim by “knowingly engaging in conduct which resulted in the bodily injury [of the victim] with the specific intent to retaliate against [the victim] for his attendance as a witness.”

The constitutional standard for testing the sufficiency of the evidence is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Both the direct and circumstantial evidence must be [ 7sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt.

Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts. The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

However, this requirement does not establish a standard that is separate from the Jackson standard, but instead provides a helpful methodology for determining the existence of reasonable doubt. To support the conclusion that the defendant is guilty beyond a reasonable doubt, all evidence, both direct and circumstantial, must be sufficient.

On appeal, the reviewing court does not determine if another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events. Instead, the appellate court must evaluate the evidence in a light most favorable to the State and determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under the Jackson standard.

The State presented its case through the testimonies of the Mr. Parent, Deputy Guerin, Mr. Joseph Matassa, and Nicole Scott, an eye witness to the event. The witnesses’ testimonies regarding the altercation were substantially similar. The State presented evidence to show that Mr. Parent was in the St. James |scourthouse on January 16, 2007, testifying for the State in a misdemeanor trial against Nicholas regarding an incident that occurred in October 2006, at the home of Mr. Parent’s girlfriend. Mr. Parent testified that he was threatened by Nicholas over the phone between October 2006 and the day he testified on, January 16, 2007.

The defense did not present any testimony at trial. However, Nicholas argued, in closing argument and in brief, the alternative hypothesis that the defendant punched the victim due to their on-going dispute, not in retaliation for his testimony.

We find the State presented sufficient evidence for the trial court to conclude that Nicholas was guilty beyond a reasonable doubt of obstruction of justice, in violation of La. R.S. 14:130.1(A)(S). Further, the State presented evidence sufficient to prove that Nicholas accomplished this offense while also committing simple battery upon Mr. Parent.

We find no merit in this assignment of error.

SENTENCE

As previously stated, three of Nicholas’ assignments of error relate to his five-year sentence on the obstruction of justice conviction. Initially, we note that there is no merit to Nicholas’ claim that the trial judge erred in denying his motion to reconsider sentence. We find no evidence of such a motion filed in the record.

Immediately after sentencing, the following exchange took place between defense counsel and the trial court then the proceedings ended:

Ms. Boxberger:
Your honor, we hadn’t resolved that motion to reconsider, not to reconsider it in the sentence. Your honor, we’d like to let the court know that we are going to file a motion for appeal. We’d like the transcript designated for the record and we’d like to move the court to appoint the Appellant Project for the appeal.
|aThe Court:
So ordered. The motion for post-judgment verdict of acquittal is denied.
Ms. Boxberger:
Thank you, your honor.

It appears that Nicholas is referring to this exchange in support of an oral motion to reconsider sentence. However, we find that Nicholas did not clearly articulate a motion to reconsider sentence. This assignment is without merit.

The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, precludes the State or defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review. Such-a failure limits a defendant to a bare review of the sentence for constitutional excessiveness.

Upon an errors patent review, we find several errors that mandate that the sentence on Count I, obstruction of justice, must be vacated. Accordingly, consideration of constitutional excessiveness of Nicholas’ sentence will not be addressed in this opinion.

The record shows that Nicholas filed a motion for post-verdict judgment of acquittal. The hearing on that motion was set for the same day as the sentencing hearing. At the hearing, the trial court sentenced Nicolas to five years with the Department of Corrections on Count I. At the end of the hearing, after sentencing, the trial court denied the post-verdict judgment of acquittal. Disposal of the motion for post-verdict judgment of acquittal must be made before sentencing. In cases where the trial court imposes sentence without disposing of the motion for post-verdict judgment of acquittal, this Court has previously held that sentencing, 1 mprior to a ruling on such a motion, must be set aside and the case remanded for a ruling on the motion prior to re-sentencing. We are aware that, in this case, the motion was denied at the same hearing, and was not left undecided, making it distinguishable from the cases cited for support in setting aside the sentence and remanding the matter.

However, other errors make this sentence invalid. The law requires a twenty-four-hour delay in sentencing after denial of a motion for new trial or in arrest of judgment, unless the defendant waives the delay. The article does not explicitly require a twenty-four-hour delay in sentencing after a motion for a post-verdict judgment of acquittal has been denied. However, this Court has applied the twenty-four-hour delay in La.C.Cr.P. art. 873 to motions for post-verdict judgment of acquittal. Since the denial of the motion for post-verdict judgment of acquittal was denied after the sentence was imposed, it is obvious the delay was not afforded to Nicholas. Further, there is no evidence in the record that Nicholas waived that delay.

When a defendant challenges the penalty imposed and the imposed sentence is not mandatory, the failure to observe the twenty-four-hour delay mandated in La.C.Cr.P. art. 873 cannot be considered harmless error. As a general rule, when a defendant challenges a non-mandatory sentence and the delay is not waived, the defendant’s sentence must be vacated and the matter remanded for re-sentencing.

|„We find that to be the case here. Nicholas was convicted of obstruction of justice under La. R.S. 14:130.1(A)(3). The penalty for that offense is a fine of not more than ten thousand dollars, imprisonment for not more than five years, with or without hard labor, or both. Therefore, the sentence is not mandatory and the sentence imposed must be vacated.

For reasons set forth in this opinion, we affirm the convictions of Nicholas for Count I, obstruction of justice, and Count II, simple battery. We further affirm the sentence imposed on the simple battery conviction. We vacate the sentence on the obstruction of justice conviction and remand the matter for re-sentencing in accordance with this opinion.

CONVICTIONS AFFIRMED; SENTENCE ON COUNT II AFFIRMED; SENTENCE ON COUNT I VACATED; MATTER REMANDED

      . The minute entry on December 22, 2008 reflects that the trial court denied Nicholas' motion for post-verdict judgment of acquittal before sentencing. However, the transcript reveals that the trial court denied the motion after it sentenced Nicholas. Whenever there is a conflict between the transcript and the minutes, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

      . La.C.Cr.P. art. 841; State v. Allen, 01-2494 (La.6/21/02), 824 So.2d 344.

      . State v. Allen, supra.

      . State v. Williams, 02-1188 (La.App. 5 Cir. 4/8/03), 846 So.2d 22, 32.

      . State v. Tatum, 09-1004 (La.App. 5 Cir. 5/25/10), 40 So.3d 1082, 1090.

      . Id.

      . La. R.S. 14:130.1(A)(3).

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019.

      . State v. Kempton, 01-572 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722.

      . La. R.S. 15:438.

      . State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 884.

      . Id.

      . State v. Durand, 07-4 (La.App. 5 Cir. 6/26/07), 963 So.2d 1028, 1034, writ denied, 07-1545 (La.1/25/08), 973 So.2d 753.

      . La.C.Cr.P. art. 881.1(E).

      . State v. Carter, 07-270 (La.App. 5 Cir. 12/27/07), 976 So.2d 196, 203.

      . La.C.Cr.P. art. 821.

      . State v. Davis, 01-1275 (La.App. 5 Cir. 4/10/02), 817 So.2d 171, 173.

      . La.C.Cr.P. art. 873.

      . State v. Davis, 09-1109 (La.App. 5 Cir. 9/14/10), 45 So.3d 203, 214. We note a split in the circuits on this issue. The First Circuit is in accord with this Court in finding that a motion for post-verdict judgment of acquittal is included in La.C.Cr.P. art. 873. See, State v. Dixon, 620 So.2d 904 (La. 1 Cir.1993). However the Second and Fourth Circuits disagree and find that La.C.Cr.P. art. 873 does not apply to a motion for post-verdict judgment of acquittal. See, State v. Harris, 42,376 (La.App. 2 Cir. 9/26/07), 966 So.2d 773, writ denied, 07-2109 (La.3/28/08), 978 So.2d 304; State v. Robinson, 10-0885 (La.App. 4 Cir. 12/21/10), 54 So.3d 1208.

      . State v. Young, 04-1318 (La.App. 5 Cir. 4/26/05), 902 So.2d 461, 470.

      . Id.

      . La. R.S. 14:130.1 (B)(3).


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Ryan K. WILLIAMS.
    No. 10-KA-904.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2On appeal, Defendant, Ryan K. Williams, requests an error patent review of his conviction for forgery in violation of LSA-R.S. 14:72 and his sentence of nine years imprisonment at hard labor without benefit of probation or suspension of sentence from the 24th Judicial District Court, Division “I.” For the following reasons, Defendant’s conviction and sentence are affirmed, and the matter is remanded to the trial court for correction of the habitual offender bill commitment. Additionally, Defendant’s appellate counsel’s Motion to Withdraw is granted.

On March 16, 2010, the Jefferson Parish District Attorney filed a bill of information charging Defendant with forgery in violation of LSA-R.S. 14:72. Defendant was arraigned on May 27, 2010 and pleaded not guilty. Defendant withdrew this plea and pleaded guilty as charged on August 26, 2010. During the guilty plea colloquy, the State presented a factual basis for the plea by providing that on or about January 19, 2010, Defendant presented a check that was made |spayable to him, which was a forged writing that was drawn on an account entitled “Cruise Shop.” Defendant was sentenced to nine years imprisonment at hard labor. His sentence was ordered to run concurrent with the sentences imposed in 24th Judicial District Court case numbers 10-2854, 10-3852, and 10-4049.

Additionally on August 26, 2010, the State filed a habitual offender bill of information, which alleged Defendant was a second felony offender. Defendant admitted the habitual offender bill allegations. The trial court vacated Defendant’s original sentence and imposed an enhanced sentence of nine years imprisonment at hard labor "without benefit of probation or suspension of sentence. This sentence was ordered to run concurrent with the sentences imposed in case numbers 10-2854, 10-3352, and 10-4049. Defendant’s instant appeal follows.

On appeal, Defendant’s only assignment of error is whether the record reveals error patent such that the conviction and/or sentence should be reversed.

ANDERS BRIEF

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

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly 14frivoIous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal,” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

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

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 95-929 at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may deny the motion and order the court-appointed 15attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Defendant’s appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues to be raise on appeal. She sets forth a procedural history of the case and explains that the facts of the case were not sufficiently revealed in the record because Defendant pleaded guilty, and there were no motions heard and transcribed to provide sufficient facts and circumstances surrounding the arrest. Counsel provides that she can find no ruling of the trial court which would arguably support an appeal. In fact, she provides that there were no pre-trial hearings or rulings. She further contends that there was no Crosby plea. Counsel explains that she considered whether to raise the issue of exces-siveness of the sentence and concluded such claim would be frivolous, noting that Defendant was informed as to what his underlying sentence and enhanced sentences would be. She noted that the sentencing range that Defendant faced as a second felony offender was five to twenty years and the nine-year sentence would not be considered constitutionally excessive. She requests that this Court grant her motion to withdraw as counsel of record.

Appellate counsel has filed a motion to withdraw as attorney of record which states that she has made a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal and no rulings of the trial court that would arguably support the appeal. She provides that she notified Defendant of the filing of her motion and has advised him of his right to file a pro se brief in this matter. Additionally, this Court sent Defendant a letter by certified mail, informing him that such a brief had been filed, and that he had until December 15, 2010, to file a pro se supplemental brief. On December 16, 2010, after considering Defendant’s Motion to File a Supplemental Pro-Se Brief, this |f,Court ordered that Defendant had until January 15, 2011, to file a supplemental appellant’s brief in this matter. Defendant failed to file a supplemental pro se brief.

The State filed a response contending that counsel’s brief shows a conscientious and thorough review and recitation of the procedural history of the case, and that she has cast an advocate’s eye over the record and determined that there were no significant, non-frivolous issues upon which to base an appeal. The State agrees that Defendant did not preserve his right to appeal any adverse motion ruling through Crosby and further contends that the record shows there were no adverse motion rulings. The State explains that Defendant initialed and signed an acknowledgement of constitutional rights and waived those rights, including the right to appeal, noting that a guilty plea normally waives all non-jurisdictional defects in the proceedings prior to the guilty plea and precludes review of such defects by appeal or post-conviction relief. The State adds that there are no jurisdictional defects in the proceedings, and notes that appellate counsel does not allege any defects in the proceedings. The State further provides that Defendant waived his rights in court and also signed a waiver of rights form as to the habitual offender bill. Finally, the State contends that Defendant’s sentence is not excessive and defendant was advised of the prescriptive period for filing post-conviction relief. The State concludes that appellate counsel has conformed with and followed the procedures set forth in An-ders and Jyles and should be granted her request to withdraw.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The bill of information in this case properly charged Defendant and presents no non-frivolous issues supporting an appeal. As required, it plainly and concisely states the |7essential facts constituting the offense charged. Also, it sufficiently identifies defendant and the crime charged. See generally LSA-C.Cr.P. arts. 464-66.

As reflected by the minute entries and commitments, Defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea, and his sentencing for the underlying conviction. He also appeared at the habitual offender bill proceedings in which he stipulated to the allegations and was sentenced as a second felony offender. As such, Defendant’s presence does not present any issue that would support an appeal.

Further, Defendant pleaded guilty as charged. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06); 926 So.2d 662, 664. An unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the habitual offender hearing. State v. Schaefer, 97-465, p. 9 (La.App. 5 Cir. 11/25/97); 704 So.2d 300, 304.

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

The record does not reveal any irregularities in Defendant’s guilty plea. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658, p. 7 (La.App. 5 Cir. 2/27/06); 924 So.2d 1120, 1124. A guilty plea is ^constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. McCoil, supra. Defendant does not request that his guilty plea be withdrawn in this matter.

The record shows that Defendant was aware he was pleading guilty to forgery. He was advised of his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama. Defendant indicated that he understood the rights he was waiving. He indicated that he had not been forced or threatened into pleading guilty.

Defendant was advised that the maximum sentence he could receive for this offense was ten years, and if the plea was accepted he would receive a nine-year sentence at hard labor, which would run concurrent with the sentences imposed in case numbers 10-2854, 10-8352, and 10-4049.

Defendant’s original sentence does not present any issues for appeal. Defendant’s original sentence was vacated, and therefore, even if issues were present, they would be moot. Nevertheless, it is noted that Defendant’s original sentence falls within the sentencing range set forth in LSA-R.S. 14:72. Further, the sentence imposed for the original sentence is in conformity with the plea agreement. LSA-C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05); 916 So.2d 1171, 1178.

13As such, there are no non-frivolous issues that should have been raised on appeal relating to the guilty plea proceedings and the sentencing on the underlying conviction in this case.

By stipulating to the habitual offender bill, Defendant waived his right to a hearing and any possible non-jurisdictional defects were waived. He is barred from asserting on appeal that the State failed to produce sufficient proof at the habitual offender hearing. See Schaefer, supra. Defendant was advised of the right to a hearing and his right to remain silent at the hearing and indicated that he understood he was waiving these rights with his stipulation.

Further, Defendant was advised of, and indicated he understood, the sentence he would receive if he stipulated to the habitual offender bill. He was advised of the sentencing range he faced as a second felony offender and was told what his sentence would be. After stipulating to the habitual offender bill, a sentence was imposed in conformity with the plea agreement. This Court has consistently recognized that LSA-C.Cr.P. art. 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Moore, 06-875, p. 15 (La.App. 5 Cir. 4/11/07); 958 So.2d 36, 46. Because Defendant’s sentence is within the sentencing range and was imposed pursuant to a plea agreement, the enhanced sentence does not present a non-frivolous issue to be raise on appeal.

Based on the foregoing, the proceedings surrounding Defendant’s guilty plea and his original sentence, which has been vacated, do not present any non-frivolous issues to be raised on appeal. Further, the habitual offender proceedings, | mincluding the imposition of Defendant’s enhanced sentence, also do not present any issues to be raised on appeal.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, Defendant’s conviction and sentence are affirmed and appellate counsel’s motion to withdraw as attorney of record is granted.

ERROR PATENT DISCUSSION

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

The habitual offender bill commitment reflects that the court found Defendant to be a habitual offender and sentenced him under the habitual offender bill statute. However, this commitment fails to reflect the Defendant’s specific status as a second felony offender.

Since the transcript reflects that Defendant was found to be a second felony offender, we are remanding this matter and instructing the trial court to correct the commitment order to reflect that Defendant was sentenced as a second felony offender. See State v. Evans, 09-477, pp. 22-23 (La.App. 5 Cir. 12/29/09); 30 So.3d 958, 972. Additionally, we direct the trial court to make the entries in the minutes reflecting these changes and direct the clerk of court to transmit the original of the minute entry to the officer in charge of the institution to which Defendant has been sentenced. See LSA-C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06); 937 So.2d 846 (per curiam).

InDECREE

For the foregoing reasons, Defendant’s conviction and sentence are affirmed, and the Motion to Withdraw is granted. Additionally, the matter is remanded to the trial court for correction of the habitual offender commitment.

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

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95); 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96); 676 So.2d 1108, 1110-11.

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

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

      . As a second felony offender with an underlying forgery conviction, Defendant faced a possible sentencing range of five to twenty years without benefit of probation or suspension of sentence. See LSA-R.S. 14:72; LSA-R.S. 15:529.1.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Joshua ELLIS.
    No. 10-KA-1019.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, Donaldsonville, LA, for Plaintiff/Ap-pellee.
    Dale J. Petit, Attorney at Law, Hester, LA, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this criminal proceeding, Joshua Ellis, defendant/appellant, who is a first time felony offender, challenges his 25-year hard labor concurrent sentences as constitutionally excessive. Mr. Ellis, who was indicted for two counts of vehicular homicide (La.R.S. 14:32.1), entered Alford guilty pleas to the charges. The trial judge sentenced him to the concurrent sentences, imposed a fine of $5000, and ordered him to complete a court-approved substance-abuse program. The court imposed the first five years of the sentences without benefit of probation, parole, or suspension of sentence. For the reasons that follow, we affirm.

Proceedings Below

The two-count indictment charged Mr. Ellis with committing vehicular homicide on March 9, 2007 while engaged in the operation of a motor vehicle and |3being under the influence of a controlled dangerous substance, marijuana. Count 1 charged him with the homicide of Tiffany Winzy; Count 2 charged him with the homicide of John Martin, Jr. Thus, Mr. Ellis was charged with violating the following sections of La.R.S. 14:32.1:

A. Vehicular homicide is the killing of á human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exists and such condition was a contributing factor to the killing:
(3) The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964.

At the guilty plea hearing, the trial judge entered into a colloquy with Mr. Ellis. Mr. Ellis testified that he was 30 years of age, attended high school, and had one semester of community college. He acknowledged that he understood and he was waiving the Boykin triad of constitutional rights, i.e., the right to a trial by jury, the right to confront the witnesses against him, and the privilege against self-incrimination.

Mr. Ellis recognized that he was pleading guilty without any guaranteed sentence and that the trial court was ordering a presentence investigation before making a sentencing decision. Although protesting his innocence, he admitted that if he went to trial, the evidence would show that he was in fact guilty.

A few months later, July 29, 2010, the trial court held a sentencing hearing. At that time, the court took victim impact statements from Brenda Kimble and John Martin, Mr. Martin’s father. Mr. Ellis also gave a statement.

Mr. John Martin stated that he did not know whether he could ever forgive Mr. Ellis because he drove recklessly and caused a tremendous tragedy. He stated |4that the victim, his son, John Martin, Jr., was survived by three sons, two of whom are autistic. One of the sons was trapped in the car with his father while his father died.

Ms. Brenda Kimble stated that her sister, Tiffany Winzy’s mother, was too heartbroken to give a victim impact statement because she lost her only daughter. According to Ms. Kimble, Tiffany Winzy, who was only almost 25 years of age, had only known Mr. Ellis for four months. Tiffany Winzy was survived by her young son. Tiffany Winzy was working, and going to school.

Mr. Ellis stated that he loved Tiffany Winzy and he did not intend to hurt anyone. Rather, he was attempting to avoid an accident. And, he was not intoxicated. He expressed sorrow for the loss but stated that the incident was really just an accident.

Defense counsel, who reviewed the pre-sentence investigation report, objected to the sentencing recommendation.

Afterwards, the trial judge orally and in ■writing explained his reasons for imposing the sentences. He noted that Mr. Ellis, who was 30 years of age at the time of the sentences — three years after the incident — was a first time felony offender. According to the trial judge, the presen-tence investigation report indicated that Mr. Ellis was not eligible for the impact program. The court considered character reference letters submitted by Mr. Ellis. The court also considered Mr. Ellis’s social history, age, and work status. In addition, the trial judge considered statements given at the hearing, and the statements provided in the presentence investigation report. The court determined that Mr. Ellis was in need of correctional treatment at an institution. The court found that after the event, Mr. Ellis was arrested for possession of drugs and driving with a suspended license. The court noted that Mr. Ellis had marijuana in his system; and, the | ¡^accident reports clearly indicated that he was operating his vehicle at an extremely high rate of speed and in an extremely reckless manner. Furthermore, the court noted that Mr. Ellis showed no signs of remorse; he knowingly created a risk of death or great bodily harm to more than one person; and, the offenses resulted in significant permanent injury or significant economic loss to the victim’s family.

After imposing the sentences, the trial judge notified Mr. Ellis that his sentences were subject to diminution of sentence for good behavior pursuant to La.R.S. 15:571.3. La.R.S. 15:571.8 does not form part of the sentence that La.R.S. 14:32.1 requires the trial judge to impose but is a directive to the Department of Corrections in computing an inmate’s sentence. State v. Prejean, 08-1192 (La.2/6/09), 999 So.2d 1135, 1136 (per curiam).

Thereafter, Mr. Ellis filed a motion to reconsider the sentence, urging that the sentences were constitutionally excessive for a first time felony offender. The trial judge denied the motion.

Assignment of Error/Excessiveness of Sentences

On appeal, Mr. Ellis argues that the trial court abused its discretion in imposing excessive sentences for a first time felony offender. He urges that he only had minute traces of marijuana in his system and under the facts of this case, the crimes are not classified as the most egregious or serious crimes to justify the sentences. The state responds that based on the facts presented, and the trial court’s reasons, the sentences are not constitutionally infirm.

■ Under the sentencing statute, La.R.S. 14:32.1(B), Mr. Ellis’s imprisonment exposure was mandatory imprisonment “with or without hard labor for not less than five years nor more than thirty years” and mandatory statutory restrictions of “[a]t least three years of the sentence of imprisonment ... imposed without benefit of probation, parole, or suspension of sentence.” The statute also mandates a fine lfíof “not less than two thousand dollars nor more than fifteen thousand dollars.” In addition, “[t]he court shall require the offender to participate in a court-approved substance abuse program and may require the offender to participate in a court-approved driver improvement program.” Id.

Here, the trial judge imposed 25-year hard labor sentences that were above the mid-range and less than five years from the statutory maximum 30-year sentence. He also imposed statutory limitations of five years rather than the minimum three years. However, although the statute allows the total prohibition of parole, probation or suspension of sentence, the trial judge allowed Mr. Ellis parole eligibility after serving five years. The trial judge took into account the possibilities of early release for diminution of sentence for good behavior. In addition, the trial judge imposed a $5000 fine, which was above the statutory minimum fine of $2000 but well below the maximum fine of $15,000. The trial judge further ordered Mr. Ellis to participate in a court-approved driver improvement program — a statutorily mandated requirement.

The trial judge made it possible for Mr. Ellis to secure release on parole after serving one-third of his 25-year term, or approximately 8.33 years at hard labor. La.R.S. 15:574.4(A). Mr. Ellis also remains eligible to earn early release on good time credits. La. R.S. 15:571.3(B)(1). “The availability of early release options is generally a relevant consideration in review of sentences for excessiveness.” State v. LeBlanc, 09-1355, p. 11 (La.7/6/10), 41 So.3d 1168, 1173, citing State v. Green, 418 So.2d 609, 616 (La.1982) and Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978).

Given Mr. Ellis’s parole eligibility after serving five-year concurrent sentences, he reaped a benefit from his plea, which potentially could reduce his 25-year sentencing exposure. In addition, given the extreme circumstances 17surrounding commission of the crimes, where Mr. Ellis was speeding; one child was trapped with his dying father; and, two people died, as well as the trial judge’s finding that Mr. Ellis showed no remorse, we find no abuse of discretion in sentencing.

A punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993), citing State v. Scott, 593 So.2d 704, 710 (La.App. 4 Cir.1991); State v. Lobato, 603 So.2d 739, 751 (La.1992) (internal quotation marks omitted).

In light of the above standard expressed in Dorthey, we do not find that the sentences imposed by the trial court, although near the maximum penalty for the offenses, are constitutionally excessive.

Accordingly, we affirm the convictions and sentences.

AFFIRMED

JOHNSON, J., concurs in the result.

      . The “best interest" or Alford plea, which derives from the U.S. Supreme Court case, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), is one in which the defendant pleads guilty while maintaining his innocence. State v. Calhoun, 96-0786 (La.5/20/97), 694 So.2d 909, 915. Although the transcript and the Boykin waiver form indicate that Mr. Ellis initially admitted his guilt, the trial judge was not satisfied that Mr. Ellis was admitting the facts. When specifically questioned by the trial judge, Mr. Ellis admitted the victims died but he denied that he was under the influence of any drugs. The trial judge stated that he would not accept his guilty plea. Mr. Ellis explained that he had no confidence in going to trial and just wanted to take a plea. After an off the record discussion, defense counsel stated that Mr. Ellis was entering an Alford plea, protesting his innocence. The trial judge accepted the Alford plea.

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


text:
    VETERANS COMMERCIAL PROPERTIES, LLC v. BARRY’S FLOORING, INC.
    No. 11-CA-6.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Jacqueline G. Griffith, Charles Owen Taylor, Ryan P. Monsour, Attorneys at Law, Metairie, LA, for Plaintiffs/Appellants.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

12This appeal arises from a suit on a breach of a lease agreement by Veteran’s Commercial Properties, LLC (Veteran’s) against Barry’s Flooring, Inc. (Barry’s Flooring) and Mr. Barry M. Wilbert. For the reasons that follow, we reverse the portion of the trial court’s judgment which finds that Mr. Wilbert was not liable in solido for Barry’s Flooring’s breach.

Facts and Procedural Background

On October 23, 2007, 3848 Veterans BLVD, LLC, the lessor, entered into a “Lease of Commercial Property” with the defendant/appellee, Barry’s Flooring, for suite 103 at 3848 Veterans Blvd. The three-year lease was from December 1, 2007, through November 30, 2010, and provided for an annual rent of $30,840.00 payable in 12 monthly installments of $2,570.00.

Sometime after the execution of the lease, the plaintiff/appellant, Veteran’s, purchased the immovable property located at 3848 Veterans Blvd. and assumed all preexisting leases. Barry’s Flooring contends that as a result of the acquisition, the tenant occupancy at 3848 Veterans Blvd. substantially increased, making parking for its customers unsustainable. As a result, Barry’s Flooring sought to terminate the lease. The parties attempted unsuccessfully to reach an amicable ^agreement. Thereafter, Barry’s Flooring prematurely vacated the leased premise on May 1, 2009 — 18 months before the lease expired.

On August 20, 2009, Veteran’s filed a “Petition for Breach of Lease and Damages” against Barry’s Flooring alleging that Barry’s Flooring was indebted to it in the amount of $49,824.66 due to its premature vacation of the leased premise. Veteran’s, subsequently, amended its petition on October 21, 2009, to add Mr. Wilbert as an additional defendant. The amended petition stated that “[a]t the time of the signing of the aforementioned lease, Barry M. Wilbert, personally and in solido bound himself with the tenant and personally guaranteed performance.”

Veteran’s moved for summary judgment. It argued that because Barry’s Flooring prematurely vacated the lease, it was entitled to unpaid rent, attorney’s fees, and costs and interest as provided for in the lease agreement. The motion was heard on August 18, 2010, and a judgment was issued on September 8, 2010, which cast Barry’s Flooring in judgment for breaching the lease agreement. The trial court, however, found Mr. Wilbert not to be liable in solido with Barry’s Flooring. Veteran’s appeals the trial court’s ruling.

Discussion

In its sole assignment of error, Veteran’s contends that the trial court erred in finding that Mr. Wilbert did not act in his personal capacity as a surety for Barry’s Flooring when he signed the lease agreement.

A contract of guaranty is equivalent to a contract of suretyship, and the two terms may be used interchangeably. Keller Indus., Inc. v. Deauville Consultants, Inc., 459 So.2d 636, 638 (La.App. 5 Cir.1984). Although a surety’s contract need not observe technical formalities, it must contain an absolute expression of an intent to be bound. Id. citing Ball Mktg. Enter, v. Rainbow Tomato Co., 340 So.2d 700 (La.App. 3 Cir.1976). It is an accessory promise by which one binds himself [4for another already bound and agrees with the creditor to satisfy the obligation if the principal debtor does not do so. Id. (citation omitted). An agreement of sure-tyship must be express and in writing and must be explicit. Id. (citation omitted).

Contracts of guaranty are subject to the same rules of interpretation as contracts in general. Custom-Bilt Cabinet & Supply, Inc. v. Quality Built Cabinets, Inc., 32,441, p. 4 (La.App. 2 Cir. 12/8/99), 748 So.2d 594, 598. “The courts are bound to give legal effect to all written contracts according to the true intent of the parties and this intent is to be determined by the words of the contract when these are clear, explicit and lead to no absurd consequences.” Id. The meaning and intent of the parties to the written contract in such cases must be sought within the four corners of the instrument and cannot be explained or contradicted by-parol evidence. Id. The determination of whether a contract is clear or ambiguous is a question of law. Id. at 599. (citation omitted).

Turning to the present case, the language in the lease agreement that Veteran’s contends personally binds Mr. Wilbert as a surety for Barry’s Flooring provides:

LESSOR: 3848 Veterans BLVD, LLC BY: s/Ray Peacock
Ray Peacock
WITNESSES: s/[illegible signature]
TENANT: s/Barry’s Flooring s/Barry M. Wilbert Barry’s Flooring
For value received and in induce [sic] the granting of the above lease, the undersigned make themselves party to this lease and bind themselves in solido with Tenant for the faithful execution of and compliance with all of the obligations, conditions and stipulations assumed or agreed to by Tenant, guaranteeing to Lessor, its successors and assigns, the payment of the rent and all other sums provided for in the above lease and the performance by | ./Tenant of the covenants therein contained without requiring any notice of non-payment, demand, dishonor or non-performance.
This 23 day of October, 2007
s/Barry’s Flooring s/Barry M. Wilbert Barry’s Flooring

In this case, the first set of signatures by Ray Peacock and Barry’s Flooring consummate the lease agreement that existed between 3848 Veterans BLVD, LLC and Barry’s Flooring. Immediately following those signatures, however, is a provision which states, in pertinent part, that the undersigned “bind themselves in solido with Tenant for the faithful execution of and compliance with all of the obligations, conditions and stipulations assumed or agreed to by Tenant, guaranteeing to Lessor, its successors and assigns, the payment of the rent and all other sums ...” (emphasis added).

In Pelican Plumbing Supply, Inc. v. J.O.H. Construction Co., Inc., 94-991 (La.App. 5 Cir. 3/28/95), 653 So.2d 699, we held that the defendant who signed a credit application in a similar manner as was done in the present case was not a surety. In that case, the credit application contained the following language:

In consideration of an open account privilege, I hereby understand and agree to the above terms. Should it become necessary to place this account for collection, I shall personally obligate myself and my corporation, if any, to pay the entire amount due including service charges (as outlined above terms) thirty-three and one third (33 1/3%) attorney’s fees, and all costs of collection, including court costs.
SIGNED Harold H. Heidingsfelder
COMPANY J.O.H. Const. Co., Inc.

Although the above language more expressly depicts the creation of a suretyship than the language in the present case, the defendant in Pelican Plumbing, signed the credit application just as Mr. Wilbert did here with both his name and the name of the company he represented. In Pelican Plumbing, however, we deferred to the | fitrial court’s credibility determination and found that the defendant did not intend to sign in his personal capacity. In that case, the trial court used parol evidence — Mr. Heidingsfelder’s testimony — to ascertain his true intent. And we found that the trial court was not manifestly erroneous in doing so. In this case, however, there are no Reasons for Judgment or a transcript from the trial on the merits that would indicate parol evidence was considered in the trial court’s determination.

In American Bank & Trust Company of Houma v. Wetland Workover, Inc. 523 So.2d 942, 945 (La.App. 4 Cir.1988), however, the fourth circuit held that to construe that the guarantors executed the guarantees in a representative capacity would render the documents meaningless. In that case, the defendant signed a continuing guaranty in favor of American Bank <& Trust. The defendant argued, however, that his signature was affixed to the document in a representative capacity for Wetland Workover because his signature was accompanied by his title — vice-president. The fourth circuit found that under the terms of the mortgage, “Wetland was already bound to pay back the loan proceeds. If the guarantors had signed guarantees in a representative capacity for Wetland, the corporation would be guaranteeing an obligation for which it was already bound, rendering the guarantees worthless.” Id. at 945 (citation omitted). (See also, McKesson Chemical Co., Inc. v. Tideland Chemical Co., Inc., 471 So.2d 812 (La.App. 3 Cir.1985); American Cas. Co. v. Howard, 175 So.2d 355 (La.App. 4 Cir.1965)).

We find that the present case is more in line with American Bank & Trust, supra. This finding, however, does not overrule our decision in Pelican Plumbing, supra as that case turned on a different issue.

The clear and unambiguous language in this case states that the undersigned guarantees payment of the tenant’s obligation to the lessor. This language is immediately followed by the signatures of Barry’s Flooring and Barry M. Wilbert. 17However, the capacity in which a party executes a document is largely a matter of that party’s intention as determined from the circumstances surrounding the transaction. American Bank & Trust, supra, at 945. Considering the entirety of the lease agreement, the fact that Mr. Wilbert made a handwritten notation of Barry’s Flooring above his signature does not obviate the fact that the clear and unambiguous language created a suretyship agreement in which Mr. Wilbert personally guaranteed Barry’s Flooring’s obligation to the lessor. The notation of a corporate position, or in this case, the notation of the company’s name, “is merely a title identification instead of a signature in a representative capacity.” Id. To construe otherwise would render the guaranty worthless as Barry’s Flooring was already obligated to abide by the terms of the agreement.

In sum, we find that the trial judge erred in finding that Mr. Wilbert did not act as surety in his personal capacity to the agreement that existed between 3848 Veterans BLVD, LLC and Barry’s Flooring. Accordingly, that portion of the judgment is reversed.

REVERSED

      . The record does not reflect when the appellant purchased the property located at 3848 Veterans Blvd.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Timothy YOUNG v. Jane DOE, Lesley Enterprises, LLC d/b/a Gattuso Restaurant, the Charter Oak Insurance Company.
    No. 11-CA-49.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.
    James E. Cazalot, Jr., H. Edward Sherman, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Michael R. Zsembik, Mickey S. Delaup, Stephanie L. Cook, Attorneys at Law, Me-tairie, LA, Philip A. Gattuso, Attorney at Law, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and HILLARY J. CRAIN, Pro Tempore.
   WALTER J. ROTHSCHILD, Judge.

| -¡Plaintiff appeals from the trial court’s judgment rendered on July 28, 2010 granting defendants’ motion for summary judgment on the issue of insurance coverage. For the reasons assigned herein, we affirm.

Timothy Young filed the instant petition for damages based on an incident which occurred while he was employed as a cook by Gattuso’s Restaurant. In this petition, Mr. Young alleged that on May 16, 2008, a waitress at the restaurant intentionally struck him in the back with a dinner plate, causing injury. Mr. Young named as defendants Jane Doe, a fictitious name for the waitress; Lesley Enterprises, L.L.C., the owner of the restaurant; and The Charter Oak Insurance Company, defendant’s workers’ compensation insurer. Young supplemented his petition to name as defendant Penn-America Insurance Company as defendant’s commercial general liability insurer. Young also supplemented his petition to name the waitress, Brooke Hudson.

After filing responsive pleadings, Penn-America brought a Motion for Summary Judgment on the basis that it did not issue a policy of insurance to Lesley Enterprises, L.L.C., and any policy it issued excluded coverage 14for plaintiffs injuries. Plaintiff subsequently amended his petition to allege that BG Specialties, L.L.C. was the owner and operator of Gattuso’s Restaurant.

In support of its motion, Penn-America submitted a copy of the insurance policy issued to BG Specialties. Penn-America argued BG Specialties was not plaintiffs employer, and further that the policy excluded coverage for claims arising from employment-related acts.

Defendants, Lesley Enterprises, L.L.C., The Charter Oak Fire Insurance Company and Brooke Hudson, also moved for summary judgment on the grounds that plaintiffs claims are limited to workers’ compensation. In support of this motion, defendants attached copies of the depositions of plaintiff and Brooke Hudson. Defendants submit that based on this testimony, plaintiff could not prove that his injury was caused by an intentional act sufficient to exclude it from workers’ compensation coverage.

These motions were heard by the trial court on July 28, 2010, following which the court rendered summary judgment in favor of Lesley Enterprises, LLC, The Charter Oak Fire Insurance Company, and Brooke Hudson, and dismissed plaintiffs case. By separate judgment, the motion of Penn-America Insurance Company was denied as moot. The trial court also assigned written reasons for judgment.

By this appeal, plaintiff contends that the trial court erred in finding that defendants met their burden on summary judgment of proving an absence of factual support that an intentional act occurred. Plaintiff contends that although his injury occurred at work, issues of fact regarding the amount of force used during the act preclude the trial court from dismissing plaintiffs tort claims as a matter of law.

| ^Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, pp. 26-27 (La.7/5/94), 639 So.2d 730, 750-51; Carr v. Wal-Mart Stores, Inc., 00-896 (La.App. 5 Cir. 10/31/00), 772 So.2d 865, writ denied, 00-3247 (La.1/26/01), 782 So.2d 636.

Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Mitchell v. Kenner Regional Medical Center, 06-620, p. 5 (La.App. 5 Cir. 1/30/07), 951 So.2d 1193, 1196. Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id., Hyman v. East Jefferson General Hosp., 04-1222, pp. 3-4 (La.App. 5 Cir. 03/01/05), 900 So.2d 124, 126.

16The Louisiana Worker’s Compensation Act provides for compensation if an employee receives personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031. As a general rule, the rights and remedies granted to an employee therein are exclusive of all rights and remedies against his employer, any officer or principal of the employer, or any co-employee. La. R.S. 23:1032. However, an exception to this rule provides that nothing therein shall affect the liability of an employer, principal, officer, or co-employee resulting from an “intentional act”. Id.

In interpreting the statute, the Louisiana Supreme Court has held that compensation shall be an employee’s exclusive remedy against his employer for an unintentional injury covered by the act, but that nothing shall prevent an employee from recovering from his employer under general law for an intentional tort. Bazley v. Tortorich, 397 So.2d 475 (La.1981); Caudle v. Betts, 512 So.2d 389, 390 (La.1987).

Plaintiff contends that an intentional tort occurred in this case when Ms. Hudson struck him with the dinner plate. In support of this argument, plaintiff relies on the Supreme Court’s decision in Caudle v. Betts, supra. In that case, the plaintiffs co-employee intentionally shocked him with an automobile condenser, but stated he did not intend the harm which eventually occurred because of the shock. The trial court found no intentional tort occurred and the appellate court affirmed this finding. The Supreme Court reversed the lower courts’ decisions that an intentional act had not occurred. The Supreme Court found that even if the act resulted from a practical joke and the actor did not intend the consequences of his actions, he is nevertheless responsible for plaintiffs injuries.

17Pefendants rely on more recent jurisprudence which cites the seminal decision of Bazley v. Tortorich, 397 So.2d 475 (La.1981), stating that an intentional act requires the actor to either 1) consciously desire the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) know that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. See, Batiste v. Bayou Steel Corp., 10-1561 (La.10/1/10), 45 So.3d 167, 168. In those cases, the Louisiana Supreme Court held that a plaintiff must prove that the actor knew the injury was substantially certain to occur to recover for an intentional tort.

Further, in Chabert v. Mothe Life Insurance Company, 04-590 (La.App. 5th Cir. 11/30/04), 890 So.2d 621, a panel of this Court found that there was insufficient evidence to determine that one employee’s “bumping” of another employee, although intentional, was substantially certain to cause the employee to fall or become injured. The Court found that plaintiffs exclusive remedy was in workers’ compensation.

After a review of the record in the present case and all applicable law, we find no error in the trial court’s ruling granting summary judgment in favor of defendants. In order to prove that damages from his workplace injury claim do not lie exclusively in workers’ compensation, plaintiff must prove at trial that Ms. Hudson consciously desired the physical result of her act or that she knew it was substantially certain to follow from her conduct. In Ms. Hudson’s deposition, she testified that while she intended to touch Mr. Young with the plate, she did not intend to harm him but rather expected him to laugh. Also, plaintiff testified in his deposition that he did not think Ms. Hudson intended to hurt him. The plate was estimated to weigh | ¡^approximately one pound, and it did not break during the encounter. Under these circumstances, we find Ms. Hudson’s belief that she would not injure Mr. Young with the plate to be reasonable. This case is therefore distinguishable from the factual situation in Caudle v. Betts, when the Supreme Court found that it was not reasonable to believe that administering an electrical shock on a co-worker was not substantially certain to cause injury.

Based on the facts of this case, we conclude that defendants proved an absence of factual support that the injury in this case was a result of an intentional act. Plaintiff failed to meet his burden on summary judgment of submitting evidence sufficient to show he could meet his burden of proof at trial. Accordingly, the trial court correctly determined that defendants were entitled to judgment as a matter of law dismissing plaintiffs tort claims against them. The judgment of the trial court is therefore affirmed.

AFFIRMED