text:
    In re Joanne S. ENGUM.
    No. 2011-B-2006.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|! This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Joanne S. Engum, an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1999. In 2009, this court considered a proceeding involving three counts of formal charges against respondent for misconduct which occurred between 2001 and 2004. These charges alleged that respondent neglected legal matters, failed to communicate with clients, failed to timely account for or refund unearned fees, and failed to fully cooperate with the ODC in its investigations. After considering the record, the court suspended respondent from the practice of law for one year and one day. In re: Engum, 09-1619 (La.10/28/09), 21 So.3d 926 (hereinafter referred to as “En-gum I”). Respondent has not yet filed an application for reinstatement from En-gum I. Accordingly, she remains suspended from the practice of law.

| ¡.Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

FORMAL CHARGES

In 1995, Rhonda Alston pled guilty to felony theft and was sentenced to probation. In April 2002, Rhonda was arrested on charges of forgery, bank fraud, theft, and issuing worthless checks. In May 2002, Rhonda’s mother, Janis Alston, hired respondent to handle the 2002 criminal charges and to have the 1995 conviction expunged. Respondent charged a flat fee of $3,000 for the representation, which sum Janis paid by taking out a loan with a finance company.

Thereafter, respondent failed to communicate with Rhonda about the status of the matters or the means by which she would handle them. Respondent also failed to return Rhonda’s telephone calls and relocated her office several times without notifying Rhonda.

In June 2005, Rhonda sent respondent a certified letter requesting an update on her case. Although the letter was accepted, respondent failed to reply. In August 2005, Rhonda successfully located respondent, who had taken a job with the Orleans Parish District Attorney’s Office. At that time, respondent told Rhonda she would have someone else handle the case. Respondent also advised she would call Rhonda back with an update. This was the last communication Rhonda had with respondent, and the present status of the criminal matters is unclear.

|sIn February 2010, Rhonda filed a complaint against respondent with the ODC. Respondent failed to cooperate with the ODC in its investigation of the complaint.

DISCIPLINARY PROCEEDINGS

In July 2010, the ODC filed one count of formal charges against respondent, alleging that her conduct as set forth above violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5(f)(5) (failure to refund an unearned fee), 1.16(d) (obligations upon termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(a) (violation of the Rules of Professional Conduct) of the Rules of Professional Conduct.

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined the factual allegations of the formal charges were admitted and proven by clear and convincing evidence, and that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee found respondent knowingly violated duties owed to her client and the legal profession, causing harm. As a result of respondent’s failure to |4cooperate with the ODC’s investigation, neither the client nor the ODC is able to determine the true disposition of the 2002 criminal charges. The committee further determined that under the ABA’s Standards for Imposing Lawyer Sanctions, the applicable baseline sanction is suspension.

The committee found the following aggravating factors are present: multiple offenses, a pattern of misconduct, and indifference to making restitution. The committee made no findings regarding mitigating factors.

Turning to the issue of an appropriate sanction, the committee determined that Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991), is applicable to the facts of this matter. The committee reasoned that the misconduct for which respondent was previously suspended in Engum I occurred during the same time frame and is the same type of misconduct that occurred in the instant matter. Accordingly, the committee determined that this matter should be considered in conjunction with the misconduct that was the subject of Engum I in the event respondent applies for reinstatement.

Neither respondent nor the ODC filed an objection to the committee’s report.

Disciplinary Board Recommendation

After review, the disciplinary board determined the hearing committee’s factual findings in this deemed admitted matter are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of those allegations. The board also found respondent violated the Rules of Professional Conduct as alleged in the formal charges.

| sThe board adopted the committee’s findings with respect to duties violated, respondent’s mental state, the harm caused, and the applicable baseline sanction. The board agreed with the aggravating factors found by the committee, and in mitigation, recognized a delay in these disciplinary proceedings.

The board also adopted the committee’s approach with regard to the recommended sanction, finding the committee correctly concluded that under Chatelain, the one year and one day suspension imposed in Engum I appropriately addresses the substantive misconduct in the instant matter. However, the board noted that respondent’s failure to cooperate with the ODC occurred in 2010, after the court issued its order in Engum I. Finding that this violation is not subject to the Chatelain analysis because it did not occur during the same period as the misconduct in Engum I, the board recommended the court impose an additional suspension of six months, to run consecutively to the suspension imposed in Engum I, for respondent’s failure to cooperate. The board also recommended that respondent pay restitution.

Neither respondent nor the ODC filed an objection to the board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual | ^allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The deemed admitted facts indicate that respondent neglected a client matter, failed to communicate with her client, failed to timely account for or refund unearned fees, and failed to cooperate with the ODC in its investigation. Accordingly, the record supports a finding that respondent violated Rules 1.3, 1.4, 1.5(f)(5), 1.16(d), 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

In acting as she did, respondent knowingly violated duties owed to her client and the legal profession. She caused harm to her client, as well as to the disciplinary system. The baseline sanction for this type of misconduct is a period of suspension.

The aggravating and mitigating factors found by the disciplinary board are supported by the record.

| /Turning to the issue of an appropriate sanction, we note the substantive misconduct in Engum I occurred between 2001 and 2004, the same general time period in which the substantive misconduct in the present matter occurred. Based on our decision in Chatelain, the substantive misconduct in the instant matter should be considered along with the misconduct in Engum I if and when respondent files an application for reinstatement. Therefore, no additional discipline is necessary for this misconduct.

However, the failure to cooperate charge requires a different analysis, as this misconduct occurred outside of the Engum I time frame. Respondent’s failure to cooperate commenced in February 2010, four months after we rendered our judgment in Engum I. Under the circumstances, additional discipline is appropriate for these charges. See In re: Boudreau, 03-1890 (La.12/3/03), 860 So.2d 1119.

Accordingly, we will adopt the disciplinary board’s recommendation and add respondent’s substantive misconduct to her record for consideration in the event she applies for reinstatement from her suspension in Engum I. For her failure to cooperate with the ODC in its investigation of the complaint filed by Ms. Alston, we will suspend respondent from the practice of law for six months, to run consecutively to her prior suspension. Finally, we will order respondent to make restitution of any unearned fees paid on behalf of Rhonda Alston.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that for her IsSubstantive misconduct in the Alston matter, respondent, Joanne S. Engum, Louisiana Bar Roll number 26024, be and she hereby is adjudged guilty of additional violations warranting discipline. These violations shall be added to her record for consideration in the event she seeks reinstatement from the suspension imposed in In re: Engum, 09-1619 (La.10/28/09), 21 So.3d 926. It is further ordered that for her failure to cooperate in a disciplinary investigation, respondent shall be suspended from the practice of law for a period of six months. This suspension shall ran consecutively to the suspension imposed in In re: Engum, 09-1619 (La.10/28/09), 21 So.3d 926. It is finally ordered that respondent shall make restitution of any unearned fees paid on behalf of Rhonda Alston. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . The only available information regarding the 2002 charges pertains to the warrant for Rhonda’s arrest and information regarding her bond. Furthermore, it does not appear from court records that Rhonda’s 1995 conviction has been expunged.

      . In Chatelain, this court observed that when a second attorney disciplinary proceeding involves conduct which occurred during the same time period as the first proceeding, the overall discipline to be imposed should be determined as if both proceedings were before the court simultaneously.

      . In Boudreau, we considered a case wherein an attorney’s substantive misconduct occurred in the same general time frame as the attorney’s previous misconduct, but the failure to cooperate with the ODC occurred after the attorney was disciplined. Although we applied a Chatelain analysis to the substantive misconduct, we imposed a separate six-month suspension for the failure to cooperate charge.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Steven L. RUSHING.
    No. 2011-B-1995.
    Supreme Court of Louisiana.
    Nov. 18, 2011.
   PER CURIAM.

| pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel (“ODC”) has filed a petition seeking the imposition of reciprocal discipline against respondent, Steven L. Rushing, an attorney licensed to practice law in the States of Louisiana and Texas, based upon discipline imposed in Texas.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On July 15, 2011, respondent was suspended from the practice of law in Texas for twenty-four months, with twelve months of said suspension to be probated with conditions. Commission for Lawyer Discipline v. Rushing, No. 2010-2664 on the docket of the 124th District Court of Gregg County, Texas. The specific misconduct forming the basis of respondent’s disciplinary proceeding is not discussed in the court’s opinion; however, the court found he “committed professional misconduct ... in violation of Rules 1.01(b)(1) [a lawyer shall not neglect a legal matter]; 1.03(a) [a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information]; 3.04(d) [a lawyer shall not knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal]; and 8.04(a)(3) [a lawyer shall not engage in conduct involving dishonesty, fraud, deceit 12or misrepresentation], of the Texas Disciplinary Rules of Professional Conduct; Article X, Section 9, of the State Bar Rules.”

After receiving notice of the Texas order of discipline, the ODC filed a motion to initiate reciprocal discipline proceedings in Louisiana, pursuant to Supreme Court Rule XIX, § 21. A certified copy of the decision and order of the Texas court was attached to the motion. On September 15, 2011, this court rendered an order giving respondent thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted. Respondent failed to file any response in this court.

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D), which provides:

Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline or disability inactive status unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or
| o(4) The misconduct established warrants substantially different discipline in this state; or
(5) The reason for the original transfer to disability inactive status no longer exists.

In determining the appropriate measure of reciprocal discipline, we are not required to impose the same sanction as that imposed by the state in which the misconduct occurred. Nevertheless, only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction. In re: Aulston, 05-1546 (La.1/13/06), 918 So.2d 461. See also In re Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”).

Applying the factors set forth in Rule XIX, § 21(D), we see no reason to deviate from the sanction imposed by our sister state. There is little doubt that respondent’s conduct would warrant discipline in Louisiana, given that he neglected a legal matter, failed to communicate with a client, disobeyed an obligation to a tribunal, and engaged in dishonest or deceitful conduct. Under these circumstances, we agree that a suspension is warranted.

Accordingly, we will impose the same discipline against respondent as was imposed in Texas.

DECREE

Considering the Petition to Initiate Reciprocal Discipline Proceedings filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that Steven L. Rushing, Louisiana Bar Roll number 19767, be and he hereby is suspended from the practice of law for a period of twenty-four months. It is further ordered that twelve months of this suspension shall be deferred, subject to the |4terms of probation set forth by the court in Commission for Lawyer Discipline v. Rushing, No. 2010-2664 on the docket of the 124th District Court of Gregg County, Texas. Any violation of the terms of probation may result in the deferred suspension becoming executory, or imposition of different discipline, as appropriate.

       Chief Justice Kimball not participating in the opinion.


text:
    STATE of Louisiana v. Brian BLANCHARD.
    No. 2011-KK-2183.
    Supreme Court of Louisiana.
    Oct. 7, 2011.
   In re Blanchard, Brian;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. M, No. 507-830; to the Court of Appeal, Fourth Circuit, No. 2011-K-1333.

Denied.


text:
    STATE of Louisiana v. James SIMMONS.
    No. 2011-KK-2130.
    Supreme Court of Louisiana.
    Oct. 11, 2011.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 494-820; to the Court of Appeal, Fourth Circuit, No. 2011-K-0979.

Granted. Although the Defendant did not make a jury waiver “no later than 45 days prior to trial,” the State did not object and the case proceeded to trial, ending in a mistrial. The ruling of the trial court allowing the Defendant to revoke his irrevocable waiver of a jury trial is therefore reversed, and the case is remanded to the trial court for a bench trial.

JOHNSON and WEIMER, JJ., would grant and docket.


text:
    STATE of Louisiana v. Gwendolyn CARTER.
    No. 2011-KK-2228.
    Supreme Court of Louisiana.
    Oct. 12, 2011.
   In re Carter, Gwendolyn;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 502-867; to the Court of Appeal, Fourth Circuit, No. 2011-K-1386.

Stay denied; Writ denied.


text:
    STATE of Louisiana v. Edward BELL.
    No. 2011-KK-1286.
    Supreme Court of Louisiana.
    Oct. 12, 2011.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 498-078; to the Court of Appeal, Fourth Circuit, No. 2011-K-0641.

Denied.

GUIDRY and CLARK, JJ., would grant.


text:
    Kaleem ARSHAD, et al. v. CITY OF KENNER, et al.
    No. 2011-CC-1579.
    Supreme Court of Louisiana.
    Oct. 12, 2011.
   In re Bright, Kimberlyn; City of Kenner et al.; Congemi, Nick; Gemeni Insurance Company; Kenner Police Department; Krummel, Ryan; Miller, Gerald; Sanchez, Emile;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 654-917; to the Court of Appeal, Fifth Circuit, No. ll-C-608.

Granted.


text:
    Kaleem ARSHAD, et al. v. CITY OF KENNER, et al.
    No. 2011-CC-1814.
    Supreme Court of Louisiana.
    Oct. 12, 2011.
   In re Bright, Kimberlyn; City of Kenner et al.; Clarendon America Insurance Company; Congemi, Nick; Gemeni Insurance Company; Kenner Police Department; Krummel, Ryan; Miller, Gerald; Sanchez, Emile;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 654-917; to the Court of Appeal, Fifth Circuit, No. ll-C-608.

Granted.


text:
    Seymore SIMMONS, et al. v. BAUMER FOODS, INC., et al. Seymore Simmons, et al. v. Baumer Foods, Inc., et al. Seymore Simmons, et al. v. Baumer Foods, Inc., et al.
    No. 2011-CC-1342.
    Supreme Court of Louisiana.
    Oct. 12, 2011.
   In re Baumer Foods Inc.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 2009-08523; to the Court of Appeal, Fourth Circuit, Nos. 2011-C-0528, 2011-C-0525, 2011-C-05S1.

Denied.

VICTORY, J., would grant.


text:
    Seymore SIMMONS, et al. v. BAUMER FOODS, INC., et al. Seymore Simmons, et al. v. Baumer Foods, Inc., et al. Seymore Simmons, et al. v. Baumer Foods, Inc., et al.
    No. 2011-CC-1352.
    Supreme Court of Louisiana.
    Oct. 12, 2011.
   In re National Union Fire-Pittsburgh Insurance Company;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 2009-08523; to the Court of Appeal, Fourth Circuit, Nos. 2011-C-0523, 2011-C-0531, 2011-C-0525.

Denied.

VICTORY, J., would grant.


text:
    Seymore SIMMONS, et al. v. BAUMER FOODS, INC., et al. Seymore Simmons, et al. v. Baumer Foods, Inc., et al. Seymore Simmons, et al. v. Baumer Foods, Inc., et al.
    No. 2011-CC-1364.
    Supreme Court of Louisiana.
    Oct. 12, 2011.
   In re Task Force Staffing Services Inc.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. N, No. 2009-08523; to the Court of Appeal, Fourth Circuit, Nos. 2011-C-0523, 2011-C-0531, 2011-C-0525.

Denied.

VICTORY, J., would grant.


text:
    Debra GREENHOUSE and Fabian Green House v. STATE of Louisiana et al.
    No. 2011-CC-1659.
    Supreme Court of Louisiana.
    Oct. 12, 2011.
   In re Louisiana State of, through the Board of Supervisors of Louisiana State University and Agriculture and Mechanical College;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 236,430; to the Court of Appeal, Third Circuit, No. CW 11-00483.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    INTERDICTION OF Emerite Dugas BADEAUX.
    No. 2011-CC-1764.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Badeaux III, Charles A.; Badeaux, Rene L.;—Other(s); Applying For Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. E, Nos. 20891, 20891; to the Court of Appeal, First Circuit, Nos. 2010 CW 1990, 2010 CW 1990.

Denied.


text:
    STATE of Louisiana v. Terrance Lynn JOHNSON.
    No. 2011-KK-1765.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Johnson, Terrance Lynn;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 5, No. 284,533; to the Court of Appeal, Second Circuit, No. 46,673-KW.

Denied.


text:
    BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE v. URBAN LEAGUE OF GREATER NEW ORLEANS, INC., et al.
    No. 2011-CC-1768.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Board of Supervisors of Louisiana State University and Agricultural and Mechanical College;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. K, No. 2010-10181; to the Court of Appeal, Fourth Circuit, No. 2011-C-0624.

Denied.


text:
    BASELINE CONSTRUCTION & RESTORATION OF LOUISIANA, L.L.C. v. FAVROT REALTY PARTNERSHIP d/b/a Chateaux Dijon Apartments, Chateaux Dijon Land, L.L.C., d/b/a Chateaux Dijon Apartments, CDJ Apartments, L.L.C. d/b/a Chateaux Dijon Apartments, as Successors in Interest to Chateaux Dijon Land L.L.C., B & S Favrot, L.L.C., et al.
    No. 2011-OC-1769.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Catlin Specialty Insurance Company;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. B, No. 2007-6429; to the Court of Appeal, Fourth Circuit, No. 2011-CA-0820.

Denied.


text:
    Terri H. JOSEPH v. Dr. Gregg WILLIAMS, et al.
    No. 2011-CC-1776.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Joseph, Terri J.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div M, No. 2006-13344; to the Court of Appeal, Fourth Circuit, No. 2011-C-0807.

Denied.


text:
    Donald and Rebekah GREENE v. Succession of Alex ALBARADO (a/k/a Alex Amador, a/k/a Alex Flores). Richardo Flores and Celia Alvarado v. Donald Greene, Progressive Security Insurance Company, and State of Louisiana through the Department of Transportation and Development.
    No. 2011-CC-1778.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Department of Transportation and Development; State of Louisiana;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, Nos. 144557, 147083; to the Court of Appeal, First Circuit, No. 2011 CW 0773.

Denied.


text:
    Kimberly LABORDE and Russ Laborde v. PROGRESSIVE SECURITY INSURANCE COMPANY, et al. Crystal Rogers Armand, et al. v. Gregory P. Laborde, et al.
    No. 2011-CC-1782.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Century Surety Company; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Avoyelles, 12th Judicial District Court Div. A, Nos. 2010-4885, 2010-4893; to the Court of Appeal, Third Circuit, No. CW 11-00149.

Denied.


text:
    MAPP CONSTRUCTION, LLC; Bituminous Casualty Corp. v. AMERISURE MUTUAL INSURANCE COMPANY, Crum & Forster Specialty Insurance Company, the Gray Insurance Company, Northern Insurance Company of NY, Zurich American Insurance Company, Transportation Insurance Company, Valley Forge Insurance Company, et al.
    No. 2011-CC-1713.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Amerisure Mutual Insurance Company, et al.; Crum & Forster Specialty Insurance Company; Northern Insurance Company of New York; The Gray Insurance Company; Transcontinental Insurance Company; Transportation Insurance Company; Travelers Indemnity Company of Illinois; Valley Forge Insurance Company; Zurich American Insurance Company;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 584-205; to the Court of Appeal, First Circuit, No. 2011 CW 602.

Denied.


text:
    MOORING FINANCIAL CORPORATION 401(K) PROFIT SHARING PLAN, INC. v. NEW ORLEANS HEALTH CORPORATION, et al.
    No. 2011-CC-1720.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re New Orleans Health Corporation;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 08-5505; to the Court of Appeal, Fourth Circuit, No. 2011-C-0595.

Denied.


text:
    In re Chemical Release at BOGALUSA.
    No. 2011-CC-1730.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Gaylord Container Corporation; GCC Southeastern Corporation f/k/a Gay-lord Chemical Corporation;—Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. C, No. 73,341; to the Court of Appeal, First Circuit, No. 2011 CW 0586.

Denied.


text:
    Howard HALL and Marvelle Smith v. RESTHAVEN LIVING CENTER, L.L.C.
    No. 2011-CC-1734.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Resthaven Living Center, L.L.C.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. E, No. 97792; to the Court of Appeal, First Circuit, No. 2011 CW 718.

Denied.

VICTORY, J., would grant.


text:
    Michael DIXON v. LOUISIANA CORRECTION SERVICES, et al.
    No. 2011-CP-1740.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Dixon, Michael;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. A, No. 72205-A; to the Court of Appeal, Third Circuit, No. CW 11-00569.

Denied.


text:
    Janie HAMILTON v. METLIFE AUTO AND HOME INSURANCE COMPANY.
    No. 2011-CC-1759.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Hamilton, Janie;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 591,657; to the Court of Appeal, First Circuit, No. 2011 CW 0624.

Denied.


text:
    STATE of Louisiana v. Hernan MONTES.
    No. 2011-KK-1665.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Montes, Hernan;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 10-3290; to the Court of Appeal, Fifth Circuit, No. 11-K-574.

Denied.


text:
    STATE of Louisiana v. Dave R. BERTRAND.
    No. 2011-KK-1681.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Bertrand, Dave R.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. G, No. 43929; to the Court of Appeal, Third Circuit, No. KW 11-00554.

Denied.


text:
    Logan R. HOLTON, et al. v. Warren L. HARRIS, et al.
    No. 2011-CC-1682.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Southern Tire Mart L.L.C.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 2008-4061; to the Court of Appeal, Third Circuit, No. CW 11-00265.

Denied.

VICTORY, J., would grant.


text:
    STATE of Louisiana v. Claude AMMONS.
    No. 2011-KK-1684.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Ammons, Claude;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 359-652; to the Court of Appeal, Fourth Circuit, No. 2011-K-0949.

Denied.


text:
    James GAUNT, et al. v. U-HAUL CO. OF GEORGIA, et al.
    No. 2011-CC-1699.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Azhar Khan D/B/A; Citgo Snack and Pack; U-Haul Co. of Georgia et al.; U-Haul International Inc.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 2006-5276; to the Court of Appeal, Fourth Circuit, No. 2011-C-0822.

Denied.

VICTORY, J., would grant.


text:
    OMEGA HOSPITAL, LLC v. MURPHY OIL USA, INC.
    No. 2011-CC-1702.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Murphy Oil USA Inc.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, Jefferson Parish First Court, No. 150-187; to the Court of Appeal, Fifth Circuit, No. 11-C-287.

Denied.

CLARK, J., would grant.


text:
    David MELDER, et al. v. CHRISTUS HEALTH NORTHERN LOUISIANA, et al.
    No. 2011-CC-1703.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Melder, Carrie; Melder, David et al.;—Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. A, No. 83,954-A; to the Court of Appeal, Third Circuit, No. CW 11-00284.

Denied.


text:
    STATE of LOUISIANA v. John COBB.
    No. 2011-KK-1710.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Cobb, John;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 10-WFLN-252; to the Court of Appeal, First Circuit, No. 2011 KW 0600.

Denied.


text:
    STATE of Louisiana v. Nicholas P. PIERRON.
    No. 2011-KP-0711.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Pierron, Nicholas P.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. B, No. 02-FELY-402807; to the Court of Appeal, First Circuit, No. 2011 KW 0174.

Denied.


text:
    STATE ex rel. Byrone CELESTINE v. STATE of Louisiana.
    No. 2010-KH-2661.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Celestine, Byrone;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 391-842; to the Court of Appeal, Fourth Circuit, No. 2010-K-1414.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D); La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Gary JONES v. STATE of Louisiana.
    No. 2010-KH-2685.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Jones, Gary;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 410-448; to the Court of Appeal, Fourth Circuit, No. 2010-K-1514.

Denied.


text:
    STATE ex rel. Anthony GRANGER v. STATE of Louisiana.
    No. 2010-KH-2686.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Granger, Anthony;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Divs. G, B, Nos. 39,956, 40,860, 43,173; to the Court of Appeal, Third Circuit, Nos. KH 10-00722, KH 10-01232.

Denied.


text:
    STATE ex rel. Thomas HEDGESPETH v. STATE of Louisiana.
    No. 2010-KH-2687.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Hedgespeth, Thomas;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 236,899; to the Court of Appeal, Second Circuit, No. 46,-152-KH.

Denied.


text:
    STATE ex rel. Andris SINEGAL, Jr. v. STATE of Louisiana.
    No. 2010-KH-2690.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Sinegal Jr., Andris;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. G, No. 105635; to the Court of Appeal, Third Circuit, No. KH 10-00743.

Denied.


text:
    STATE of Louisiana v. Christopher PETERS.
    No. 2011-KP-0655.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Peters, Christopher;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. H, No. 06 CR7 94806; to the Court of Appeal, First Circuit, No. 2010 KW 2043.

Denied.


text:
    STATE of Louisiana v. Clovis R. WILLIAMS, III.
    No. 2011-KP-0664.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Williams III, Clovis R.;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. B, No. 06-CR-387; to the Court of Appeal, First Circuit, No. 2010 KW 2293.

Denied.


text:
    STATE ex rel. Michael T. JOHNSON v. STATE of Louisiana.
    No. 2010-KH-2351.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Johnson, Michael T.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 102,259; to the Court of Appeal, First Circuit, No. 2010 KW 1344.

Denied.


text:
    STATE ex rel. Angel NIEVES v. STATE of Louisiana.
    No. 2010-KH-2356.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Nieves, Angel;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial Distriet Court Div. K, No. 94-211; to the Court of Appeal, Fifth Circuit, No. 08-WR-1077.

Denied.


text:
    STATE ex rel. Preston G. DEMOUCHETTE, Jr. v. STATE of Louisiana.
    No. 2010-KH-2365.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Demouchette Jr., Preston G.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. I, No. 31681.

Denied.


text:
    STATE ex rel. Mary Ann BELL v. STATE of Louisiana.
    No. 2010-KH-2366.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Bell, Mary Ann;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, Nos. 231,589, 230,033; to the Court of Appeal, Third Circuit, No. KH 10-00634.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Adolph BENNETT v. STATE of Louisiana.
    No. 2010-KH-2425.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Bennett, Adolph;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 475-994; to the Court of Appeal, Fourth Circuit, No. 2010-K-1287.

Denied.


text:
    STATE ex rel. Alonzo W. FORD v. STATE of Louisiana.
    No. 2010-KH-2426.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Ford, Alonzo W.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 96-7172; to the Court of Appeal/ Fifth Circuit, No. 09-KH-587.

Denied.


text:
    STATE ex rel. Joe MITCHELL, Jr. v. STATE of Louisiana.
    No. 2010-KH-2427.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Mitchell Jr. Joe;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 398369; to the Court of Appeal, First Circuit, No. 2010 KW 1155.

Denied.


text:
    STATE ex rel. Earton Lynn SMITH v. STATE of Louisiana.
    No. 2010-KH-2429.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Smith, Earton Lynn;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. F, Nos. 148,130, 148,-131; to the Court of Appeal, Second Circuit, Nos. 45983-KH, 45,991-KH.

Denied.


text:
    STATE ex rel. Arthur JACKSON v. STATE of Louisiana.
    No. 2010-KH-2445.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Jackson, Arthur;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 91-2112; to the Court of Appeal, Fifth Circuit, No. 10-KH-692.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Jessie Lee MARTIN v. STATE of Louisiana.
    No. 2010-KH-2656.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Martin, Jessie Lee;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. H, No. 03472-F; to the Court of Appeal, Second Circuit, No. 46,-107-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. James Ronald FRANKS v. STATE of Louisiana.
    No. 2010-KH-2187.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Franks, James Ronald;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. E, No. 69,164; to the Court of Appeal, Second Circuit, No. 45,-906-KH.

Denied.


text:
    STATE ex rel. Lucas RODDY v. STATE of Louisiana.
    No. 2010-KH-2193.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Roddy, Lucas;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. D, No. 14222; to the Court of Appeal, First Circuit, No. 2010 KW 1176.

Denied.


text:
    STATE ex rel. Ricky KING v. STATE of Louisiana.
    No. 2010-KH-2195.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re King, Ricky;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 415-236; to the Court of Appeal, Fourth Circuit, No. 2010-K-1206.

Denied.


text:
    STATE ex rel. Vernon CALLIER v. STATE of Louisiana.
    No. 2010-KH-2196.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Callier, Vernon;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Madison, 6th Judicial District Court Div. A, No. 101,379; to the Court of Appeal, Second Circuit, No. 45,-804-KH.

Denied.


text:
    STATE ex rel. Earl J. VOISIN, Jr. v. STATE of Louisiana.
    No. 2010-KH-2197.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Voisin Jr., Earl J.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. A, No. 05-901; to the Court of Appeal, Third Circuit, No. CW 10-00727.

Denied.


text:
    STATE ex rel. Tyrone WILLIAMS v. STATE of Louisiana.
    No. 2010-KH-2314.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Williams, Tyrone;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 500-745; to the Court of Appeal, First Circuit, Nos. 2010 KW 0153, 2010 KM 0897.

Denied.


text:
    STATE ex rel. John A. THOMAS, Jr. v. STATE of Louisiana.
    No. 2010-KH-2322.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Thomas Jr., John A.;—Plaintiff; Applying For Supervisory and/or RemedIal Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 220,793; to the Court of Appeal, Second Circuit, No. 45,-918-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Ronald G. JENNINGS v. STATE of Louisiana.
    No. 2010-KH-2331.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Jennings, Ronald G.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 14260-05; to the Court of Appeal, Third Circuit, No. KH 10-00575.

Denied.


text:
    STATE ex rel. Edmond C. BROWN v. STATE of Louisiana.
    No. 2010-KH-2332.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Brown, Edmond C.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 343-679; to the Court of Appeal, Fourth Circuit, No. 2010-K-1257.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Byron JOSEPH v. STATE of Louisiana.
    No. 2010-KH-2349.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Joseph, Byron;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Divs. J, C, Nos. 03-2299,; to the Court of Appeal, Fifth Circuit, Nos. 10-KH-748, 10-KH-693, 08-KH-606, 07-KH-464.

Denied.


text:
    STATE of Louisiana v. Timothy BAZILLE.
    No. 2011-KK-2201.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 07-10-0427; to the Court of Appeal, First Circuit, No. 2011 KW 1848.

Granted.


text:
    Mary RICHARD v. John C. PITRE, et al.
    No. 2011-CC-1762.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re American Home Insurance Company; First Student F/K/A Laidlaw Transit Inc.; Pitre, John C. et al.;—Defen-dants); Applying For Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 71954-B; to the Court of Appeal, Third Circuit, No. CW 11-00359.

Granted and remanded to the court of appeal for briefing, argument, and full opinion.


text:
    In re Appeal of the Decision of the DISCIPLINARY BOARD NO. 11-PDB-023.
    No. 2011-OB-1841.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Brumfield, Donald J.;—Plaintiff; Applying For Appeal of the Decision of the Disciplinary Board Office of Disciplinary Board, No. 10-PDB-023.

Leave to appeal denied.


text:
    STATE ex rel. James JASMINE v. STATE of Louisiana.
    No. 2010-KH-2099.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Jasmine, James;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 389-171; to the Court of Appeal, Fourth Circuit, No. 2010-K-1042.

Denied.


text:
    STATE ex rel. Charles G. RODGERS, Jr. v. STATE of Louisiana.
    No. 2010-KH-2143.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Rodgers Jr., Charles G.;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 317886-1; to the Court of Appeal, First Circuit, No. 2010 KW 1123.

Denied.


text:
    STATE ex rel. Joseph SIAS v. STATE of Louisiana.
    No. 2010-KH-2146.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Sias, Joseph;—Plaintiff; Applying For Supervisory and/or Remedial Writs 24th Judicial District Court Divs. H, J, Nos. 95-2756, 95-2756; to the Court of Appeal, Fifth Circuit, Nos. 10-WR-137, 10-KH-293.

Denied.


text:
    STATE ex rel. Preston DEMOUCHET, Jr. v. STATE of Louisiana.
    No. 2010-KH-1818.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Demouchet Jr., Preston;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. I, No. 31681; to the Court of Appeal, Third Circuit, No. 10-880.

Denied.


text:
    STATE ex rel. Preston George DEMOUCHETE, Jr. v. STATE of Louisiana.
    No. 2010-KH-2159.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Demouchete Jr., Preston George;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, No. 95-141810.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Jean U. BOITEUX.
    No. 10-KA-1017.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 30, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desirée M. Valenti, Appellate Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant, Jean U. Boiteux.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and HILLARY J. CRAIN, Pro Tempore.
   SUSAN M. CHEHARDY, Judge.

| yin this appeal, defendant seeks review of his second degree battery conviction and sentence. For the following reasons, we affirm.

On January 7, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jean Boiteux, with second degree battery in violation of La. R.S. 14:34.1. Defendant was arraigned on May 29, 2009, and pled not guilty. On April 19, 2010, the State amended the charge in the bill of information to aggravated battery, in violation of La. R.S. 14:3d. Trial commenced before a six-person jury on June 1, 2010. After hearing testimony and evidence, the jury unanimously found defendant guilty of the responsive verdict of second degree battery on June 2, 2010. On June 24, 2010, the trial judge sentenced defendant to five years at hard labor. Defendant now appeals his conviction and sentence.

| ¿Facts

At trial, Marie-Lucie Cleronay testified that she had been in a relationship with Jean Boiteux since 2001 and they have two living children. Further, she stated that she and Boiteux had cohabitated since 2003. In August of 2007, they moved into a house in Harvey, Louisiana. Ms. Clero-nay testified that, on December 19, 2008, her children’s father, Jean Boiteux, struck her with a metal pipe on the left forearm, sprayed her in the face with pepper spray, and struck her with a leather belt.

Ms. Cleronay stated that, early on the morning of December 19, 2008, at approximately 3:30 to 4:00 a.m., Boiteux came into their children’s room where she was sleeping. Boiteux woke her up to complain about her cooking and cleaning skills. Not wanting to wake the children, Ms. Clero-nay left the room and walked to the kitchen, and Boiteux followed her, berating her as they went. Then, Boiteux left for work abruptly.

A short time later, Boiteux returned to the house, entered the children’s room, pulled Cleronay out of bed and said, “I’m going to make you forget the 911 number.” Ms. Cleronay ran to the garage, where defendant threw a cup of tea in her face and hit her in the left forearm with a metal pipe. She said that it hurt when defendant hit her with the pipe, but the wound did not bleed.

After the defendant left for work, she prepared her children for school, dropped them off, then went to work. Ms. Clero-nay returned to her house with her children at approximately 5:30 or 6:00 p.m. because she had no other place to go. When she entered the house, she found defendant standing with his back against the wall and two hands underneath his shirt. She brought her kids to their room and headed toward the kitchen to use the phone.

|4As Ms. Cleronay walked past the defendant, he sprayed her in the face with pepper spray. The spray hurt and prevented her from breathing. Ms. Cleronay stated that she knew it was pepper spray because defendant had threatened to use pepper spray on her earlier in the day. After the defendant pepper-sprayed her, he brandished a leather belt and struck her repeatedly on the right side of her head. Ms. Cleronay telephoned 911 while the defendant was still beating her with the belt. During the call, defendant left and Ms. Cleronay informed police that the defendant had fled from the residence in his cab.

Thereafter, EMS arrived on the scene and treated Ms. Cleronay’s injuries. At trial, Ms. Cleronay identified the picture taken of the injuries to her hand and arm. She also identified photos taken that depicted injuries she sustained from the pepper spray. X-rays revealed no broken bones.

On cross examination, Ms. Cleronay reiterated that defendant hit her left arm once with a metal pipe, which caused swelling in her arm. She also reiterated that defendant beat her all over her body with the leather belt, including her face. She stated that defendant hit her with his belt and caused her left hand to bleed and scratched her face. Ms. Cleronay admitted that she bit the defendant’s left thumb on June 11, 2008.

Deputy Kevin McGuffie of the Jefferson Parish Sheriffs Office testified that, on December 19, 2008, he was dispatched to a disturbance call at 2256 Breckenridge Drive in Harvey, Louisiana. Upon his arrival, Deputy McGuffie observed an adult female victim, crying and tearful, who stated that she had been in an altercation with her boyfriend. The victim, who identified herself as Marie Cleronay, indicated that her boyfriend, Jean Boiteux, had fled the scene in his White Fleet taxi cab. Deputy McGuffie relayed that information to the Sheriffs Office dispatcher.

| ^According to the information received from the victim, earlier that same day, her boyfriend and children’s father, Jean Boi-teux, abruptly entered the room in which she slept and stood at the foot of the bed yelling insults at her. To prevent him from waking their preschool-aged children, she left the room and defendant followed. When she fled to the garage, he picked up a metal pipe and struck her on the left forearm. The defendant immediately left the residence. Ms. Cleronay did not call the police at that time.

When Ms. Cleronay returned later that afternoon, Jean Boiteux was standing in the entryway of their house with “both of his hands tucked up underneath his shirt.” After she settled the children in their bedroom, she returned to the main living area of the house. When she entered the room, Boiteux removed one hand from underneath his shirt and sprayed Ms. Cleronay in the eyes, mouth, and nose with pepper spray.

Ms. Cleronay recounted that, after Boi-teux pepper-sprayed her, he removed his other hand from underneath his shirt and produced a men’s leather belt. Boiteux proceeded to hit her with the belt. She showed cuts on her fingers consistent with wounds received in defending herself.

Deputy McGuffie testified that he observed signs that were consistent with Ms. Cleronay’s account. Specifically, there was a large swollen area on one of her forearms and her face was covered with an orange film indicative of pepper spray. She also had cuts on her fingers and swelling on her cheekbone. Deputy McGuffie identified crime scene photographs, which depicted Ms. Cleronay’s left forearm in a splint, cuts on her left index finger, swelling of her left cheek bone, and treatment to remove pepper spray.

|fiDeputy McGuffie received assistance in responding to the call from Detective Gregory Joerger. Detective Joerger observed Boiteux’s vehicle travelling northbound on Manhattan, initiated overhead lights and sirens, and stopped Boiteux. After stopping Boiteux and removing him from his vehicle, Detective Joerger noticed a brown leather men’s belt on the floor of the vehicle. Detective Joerger seized the belt then transported Boiteux to the crime scene where Ms. Cleronay identified him as her assailant.

Deputy McGuffie identified the defendant in open court. Deputy McGuffie also identified the metal pipe, which was given to him as evidence of the crime by the victim on the night in question. On cross examination, Deputy McGuffie stated that he never found the pepper-spray can that defendant used.

Defendant, Jean Boiteux, also testified at trial. He stated that he had known Ms. Cleronay since April of 2001 and that she had born him three children. He said that he never hit Ms. Cleronay with a metal pipe, and that she actually sustained the injury to her arm on December 15, 2008, when she fell through the ceiling above their garage. Defendant then stated that he never knew exactly what injury Ms. Cleronay sustained when she fell through the ceiling because she never told him. Defendant denied that he struck Ms. Cler-onay with a belt or sprayed her with pepper spray.

Defendant further testified that he did not flee the crime scene on the evening in question because he did not realize that Ms. Cleronay had called the police. He said that if he had known that she had called the police, he would have remained at the home to give his side of the story. Defendant said that once Ms. Cleronay bit his thumb during an argument and that he spent 17 days at LSU Hospital after the bite became infected.

|7On cross examination, defendant admitted that, on May 10, 2007, Ms. Cleronay called the police five times during an argument they were having and she claimed that he had hit her. Defendant agreed that Ms. Cleronay had called 911 to report him for domestic disturbances approximately 17 times during the 18 months that they had lived in Harvey. Defendant admitted that he had pled guilty to battery on a police officer in Florida in 1996. He also admitted that he was convicted of aggravated assault with a dangerous weapon and aggravated stalking in Florida in 1997. Based on the foregoing, the jury found defendant guilty of second degree battery.

On appeal, defendant raises two assignments of error: first, defendant argues that the evidence was insufficient to support the verdict of guilty of second degree battery and second, his five-year sentence at hard labor is unconstitutionally excessive.

In his first assignment of error, defendant argues that there was insufficient evidence to support the verdict of second degree battery because the State failed to establish that the victim suffered serious bodily injuries. The State contends, however, that the evidence does not have to support that element because second degree battery was a responsive verdict to the charged crime of aggravated battery, to which the defendant failed to object. The State concludes that the issue, therefore, is whether the evidence at trial is sufficient to find that the defendant committed aggravated battery.

Our first inquiry is which elements the State must present to establish sufficient evidence. In State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251-52 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983), the Louisiana Supreme Court explained:

|sThe 1982 amendment adding Section C to Article 814 now gives the trial judge discretion, on motion of either side, to exclude a responsive verdict which is not supported by the evidence. Therefore, even if the offense is legislatively designated as responsive by Article 814, the defendant may timely object to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict. If the court overrules the objection and the jury returns a verdict of guilty of the responsive offense, the reviewing court must examine the record to determine if the responsive verdict is supported by the evidence and may reverse the conviction if the evidence does not support the verdict'.... However, if the defendant does not enter an objection (at a time when the trial judge can correct the error), then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury.
It would be unfair to permit the defendant to have the advantage of the possibility that a lesser ‘compromise’ verdict will be returned (as opposed to being convicted of the offense charged) and then to raise the complaint for the first time on appeal, that the evidence did not support the responsive verdict to which he failed to object. Therefore, at least when the defendant fails to interpose a timely objection to a legislatively responsive verdict, this court will not reverse the conviction if the jury returns such a verdict, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged.

In this case, defendant did not object to the trial judge’s jury instructions that included second degree battery as a responsive verdict to aggravated battery. Accordingly, as the State suggests, the defendant is entitled to a reversal of his conviction only if the evidence is insufficient to support a conviction of the charged offense, aggravated battery. See, State v. Austin, 04-993 (La.App. 5 Cir. 03/01/05), 900 So.2d 867, 878.

La. R.S. 14:33 defines battery as “the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.” La. R.S. 14:34 provides, “Aggravated battery is a battery committed with a dangerous weapon.”

The standard for appellate review of the sufficiency of 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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Bailey, 04-85, p. 4 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-955, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476.

In this case, the victim, Ms. Clero-nay, testified that on the morning of December 19, 2008, the defendant threw a cup of tea into her face, then hit her in the left arm with a metal pipe, causing her pain. Deputy McGuffie testified that when he met with Ms. Cleronay, one of her forearms appeared to be disfigured from an injury. The State presented a photograph of Ms. Cleronay’s arm in a splint and a photograph of the pipe identified by Ms. Cleronay as the pipe Boiteux used to strike her. A metal pipe has been considered a dangerous weapon for the purposes of an aggravated battery. See State v. Tyner, 41,937 (LaApp. 2 Cir. 2/28/07), 953 So.2d 865.

Ms. Cleronay further testified that, later in the day on December 19, when she returned to the family home with her children, the defendant pepper-sprayed her in the face. The spray hurt and prevented Ms. Cleronay from breathing. Deputy McGuffie stated that he saw that Ms. Cler-onay’s face was covered with pepper spray, which has a distinct color and odor. The State presented a photograph which showed Ms. Cleronay’s treatment by EMT’s to remove the pepper spray. This Court has acknowledged pepper spray as a “dangerous weapon.” See State v. Lemeunier, 07-230 (La.App. 5 Cir. 5/27/08), 986 So.2d 130, writ denied, 08-1403 (La.3/6/09), 3 So.3d 481 (pepper spray as “dangerous weapon” element of aggravated burglary). See also 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. Johnson, 31,390 (La.App. 2 Cir. 3/31/99), 730 So.2d 1035.

| ^Finally, Ms. Cleronay testified that, after the defendant pepper-sprayed her, he beat her with a leather belt and metal belt buckle on the right side of her head. The leather belt described by Ms. Clero-nay was retrieved from the defendant’s vehicle shortly after he was apprehended by Detective Joerger. A photograph of the belt was entered into evidence. This Court has previously recognized that a belt can be used as a dangerous weapon for the purposes of aggravated battery. State v. Roberts, 97-959 (La.App. 5 Cir. 2/25/98), 708 So.2d 1199.

Although defendant denied ever hitting Ms. Cleronay and stated that her injuries resulted from a fall, the jury apparently did not find his testimony to be credible. The credibility of witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writ denied, 99-3477 (La.6/30/00), 765 So.2d 1062, writ denied, 00-0150 (La.6/30/00), 765 So.2d 1066. Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency, and the credibility of witnesses will not be reweighed on appeal. Id.

We find that, after viewing the evidence in the light most favorable to the prosecution, any rational trier-of-fact could have found that the State presented the essential elements of aggravated battery beyond a reasonable doubt. Here, the State presented evidence that defendant intentionally used violence on Ms. Cleronay by striking her with a metal pipe and a leather belt, i.e., a dangerous weapon. Furthermore, the State presented evidence that defendant intentionally administered a noxious substance, i.e. pepper spray, to Ms. Cleronay. Based on our finding that the evidence was sufficient to support aggravated battery, this court will not reverse defendant’s conviction of second degree battery.

|nIn his second assignment of error, defendant contends that his five-year sentence at hard labor is unconstitutionally excessive. However, we find that this argument is moot because defendant’s five-year sentence was vacated when defendant was sentenced as a multiple offender as noted in defendant’s appeal of that adjudication.

In State v. Jenkins, 07-423, p. 8 (La.App. 5 Cir. 10/30/07), 970 So.2d 1166, 1170, writ denied, 07-2243 (La.5/30/08), 983 So.2d 895, defendant argued that his underlying sentence was constitutionally excessive. This Court noted, however, that, once defendant was found to be a second felony offender, his underlying sentence was vacated and defendant was resen-tenced. This Court found that the defendant’s argument regarding his underlying sentence was moot since his underlying sentence was vacated. See also State v. Jackson, 05-923, pp. 12-13 (La.App. 5 Cir. 3/28/06), 926 So.2d 72, 79, writ denied, 06-1589 (La.1/8/07), 948 So.2d 121; State v. Hanson, 00-1168, p. 4 (La.App. 5 Cir. 12/13/00), 778 So.2d 43, 45 (where this Court found the excessive sentences arguments relating to vacated sentences moot).

Finally, as is our practice, the record was reviewed for errors patent, according to La.C.Cr.P. art. 920. Upon review, we note that the record does not reflect that the defendant was properly advised of the prescriptive period within which to file for post-conviction relief because, at defendant’s sentencing on the underlying conviction, the trial judge stated that the defendant had “two years to seek post-conviction relief.” La.C.Cr.P. art. 930.8(A) states that a defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction relief. It is well-settled that a trial court’s La.C.Cr.P. art. 930.8 advisal is incomplete when the trial judge fails to advise a defendant that the | ^.prescriptive period begins to run from the date that his conviction and sentence becomes final. See, State v. Roche, 05-237 (La.App. 5 Cir. 4/25/06), 928 So.2d 761, 767, 768, writ denied, 06-1566 (La.1/8/07), 948 So.2d 120.

Accordingly, by way of this opinion, we advise defendant that, under La.C.Cr.P. art. 930.8, no application for post-conviction relief, including an application seeking an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. See, State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473. Defendant’s conviction is hereby affirmed.

AFFIRMED

      . See, Error Patent review, infra.

      . See, La.C.Cr.P. art. 814(A)(14).

      . On or about June 24, 2010, the State filed a bill of information alleging that defendant was a second felony offender. On February 3, 2011, the trial judge found that the State has presented sufficient proof that defendant had been convicted of two felony offenses and adjudicated defendant as a second felony offender. At that hearing, defendant's sentence for second degree battery was vacated and the trial judge imposed an enhanced sentence of nine years. In a separate appeal, defendant is seeking review of his multiple offender adjudication and enhanced sentence.

      . The metal pipe that Boiteux used is described as a “floor jack for a vehicle.”

      . According to URCA Rule 2-1.14, ”[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.”


author: HILLARY J. CRAIN, Judge Pro Tem.

text:
    Harry DORSEY v. Anthony McKAY, et al.
    No. 10-CA-919.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 30, 2011.

      Timothy S. Marcel, Attorney at Law, Luling, LA, for Plaintiff/Appellant.
    Anthony McKay, In Proper Person, Boutte, LA, Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, MARC E. JOHNSON, and HILLARY J. CRAIN, Pro Tempore.
   HILLARY J. CRAIN, Judge Pro Tem.

12This is an appeal by Harry Dorsey, plaintiff-appellant, from a judgment granting sole possession of the property at issue in this litigation to Anthony McKay, defendant-appellee. For the following reasons, we vacate the judgment and remand the matter to the district court for trial of the case as a petitory action.

The essential facts are these. The tract at issue is approximately 175 feet by 358.5 feet, situated in Boutte, St. Charles Parish. Harry Dorsey originally brought an eviction proceeding in Justice of the Peace court against Anthony McKay, who was living in a trailer on the tract. McKay filed various pleadings, including a reeon-ventional demand in which he claimed possession of the tract. He also moved to have the case transferred to district court, and this motion was granted.

Subsequently, an intervention was filed by Steve Hills, Edward Hills, Larry Mitchell, Geraldine Hill, Matilda Alexander, Lillian Dorsey, Yvonne Diggs and |sJane Dorsey. Intervenors claimed that they were in possession of the property and were being disturbed by Harry Dorsey. During the course of the proceedings the original eviction action was dismissed, as were the reconventional demands of Geraldine Hill and Yvonne Diggs.

Harry Dorsey has not answered the re-conventional demand filed by Anthony McKay. He did, however, answer the intervention. In that pleading he stated:

That Harry Dorsey is the owner of the subject property in accordance with judgments] pronounced by this court on July 13, 2005, and on December 14, 2007, and accordingly has been in possession of the entire tract; additionally, since Harry Dorsey has asserted titled (sic.) in his answer, this cause should be converted into a petitory action.

For reasons not entirely clear in the record, the matter was tried as a possesso-ry action and the resulting judgment awarded possession of the tract to Anthony McKay. No mention is made of the intervention of the various other parties. Harry Dorsey now appeals that judgment.

La. C.C.Pro. Art. 3657, provides as follows:

When, except as provided in Article 3661(l)-(3), the defendant in a possesso-ry action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action.

None of the exceptions in Art. 3661 apply here.

Harry Dorsey’s answer to the intervention clearly asserts title in himself, and moreover explicitly urges that the matter be converted to a petitory action. In this circumstance, he judicially confessed possession of the property by the intervenors, and it was his duty to prove his ownership of the tract. However, because the matter was tried as a possessory action, full evidence bearing on the issue of ownership was neither presented nor controverted.

|4In regard to Dorsey’s failure to answer the reconventional demand, the court stated in Malbrough v. Wheat, 428 So.2d 1110 (La.App. 1st Cir.1983), at 1112, that:

Issue is not joined between a plaintiff and a defendant until the defendant files an answer to the plaintiffs petition, or until the plaintiff obtains a valid preliminary default against the defendant. No valid judgment may be rendered against a party with whom issue has not been joined by way of answer, default or waiver. Kennedy v. Coon, 401 So.2d 512 (La.App. 2nd Cir.1981); Ashy v. Cosmopolitan Credit & Investment Corporation, 365 So.2d 1171 (La.App. 3rd Cir.1978); Morgan v. Toups-Cook Truck Sales, Inc., 178 So.2d 786 (La.App. 1st Cir.1965).

Additionally, C.C.Pr. Art. 1571 A(2) prohibits assignment of ordinary proceedings for trial before an answer is filed. Here, Dorsey has never answered Anthony McKay’s reconventional demand.

Although the defect of failing to file an answer before proceeding to trial may have been waived by Dorsey’s appearance and participation in the trial, we are still of the opinion that the matter should have been tried as a petitory action. Interve-nors, by asserting their right through intervention in McKay’s possessory action, were limited in their ability to change the issues in McKay’s suit. Strain v. Trinchard, 2005-1433 (La.App. 1 Cir. 6/9/06), 938 So.2d 1008. However, in real actions a suit is subject to change from a possessory to a petitory action by the defendant in the possessory action. The plaintiffs (interve-nors) cannot control the nature of their action if the defendant in the possessory action decides to convert their suit to a petitory action. That is what Dorsey did here by asserting title against the interve-nors. Once he did that, the suit had to be tried either partially as a petitory action with the intervenors and partially as a possessory action against McKay, or totally as a petitory action against the interve-nors and McKay. We believe the latter is the more appropriate way to proceed for this particular case. The result is the same with reference to possession. Once that is confessed by |fiDorsey in converting to a petitory action, he nevertheless must then be allowed to prove ownership at trial.

It is this court’s opinion that the judgment in what was improperly tried as a possessory action must be vacated. The case is remanded to the district court so that Dorsey may be given the opportunity to try the matter as a petitory action against McKay and the intervenors.

VACATED AND REMANDED


author: HILLARY J. CRAIN, Judge Pro Tern.

text:
    STATE of Louisiana v. Charles E. MILLER.
    No. 10-KA-1028.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 30, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Matthew R. Clauss, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and HILLARY J. CRAIN, Pro Tempore.
   HILLARY J. CRAIN, Judge Pro Tern.

|2On September 9, 2008, the Jefferson Parish District Attorney filed a bill of information charging defendant, Charles E. Miller, with purse snatching in violation of LSA-R.S. 14:65.1. At the July 28, 2009 arraignment, defendant pled not guilty. On March 8, 2010, the State filed a notice of intent to introduce inculpatory statements and a notice of intent to introduce 404(B) evidence. Defendant filed a motion in limine to exclude evidence of other crimes. These motions were heard and then held open for the trial judge’s rulings. Later on March 8, 2010, defendant withdrew his not guilty plea and pled guilty as charged. After defendant was advised of his Boykin rights, the trial judge accepted his guilty plea and sentenced him to ten years imprisonment at hard labor.

IsAlso on March 8, 2010, the State filed a multiple offender bill of information alleging that defendant was a second felony offender. After being advised of his rights, defendant stipulated to the multiple bill. The trial court vacated defendant’s original sentence and thereafter sentenced him as a second felony offender to ten years imprisonment with the Department of Corrections, without benefit of parole, probation, or suspension of sentence. On September 20, 2010, the trial court granted defendant an out-of-time appeal.

ASSIGNMENT OF ERROR

On appeal, defendant contends that the district court’s decision to admit his alleged statement, as well as the items that were taken from his person upon arrest, constituted reversible error because that ruling would guarantee his conviction due to his bad character and the belief that he may have committed other crimes. Defendant asserts that the district court’s ruling created undue prejudice to the defense and gave extreme leverage to the State, and therefore, this Court should reverse his conviction and remand the matter to the district court for a new trial.

We first note that there is no indication in the record before us that the district court ruled on the State’s motions at issue herein, and therefore, there are no rulings for this Court to review. Moreover, even if there had been rulings by the district court, defendant failed to preserve the issues for appeal.

It is well settled that a plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea, but a defendant may reserve his right to appeal an adverse prior ruling of the trial court. State v. Crosby, 338 So.2d 584, 586 (La.1976). A defendant may be allowed appellate review, if, at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. State v. Reed, 10-527 (La.App. 5 Cir. 2/15/11), 61 So.3d 74, 77. A defendant who fails to specify which pretrial ruling he wishes to reserve for appeal as part of a guilty plea entered under Crosby is not precluded from review altogether, but his appellate review may be limited in scope. State v. Richardson, 09-714 (La.App. 5 Cir. 2/9/10), 33 So.3d 903, 906-07, writ denied, 10-0526 (La.10/15/10), 45 So.3d 1109.

Although defendant argues that he is filing this appeal pursuant to State v. Crosby, supra, the record does not reflect that defendant, who was represented by counsel, specified at any time that his guilty plea was being made pursuant to Crosby. Instead, defendant entered an unqualified plea of guilty. Both the signed waiver of rights forms and colloquies in court are void of any suggestion that the guilty plea was made subject to the reservation of appellate review of prior rulings. In fact, the waiver of rights form for the purse snatching conviction reflects that defendant’s counsel signed the form, acknowledging that he advised defendant that his only appeal was for review of jurisdictional defects.

In the present case, defendant did not tender his plea pursuant to State v. Crosby, supra, and therefore, we find that defendant waived his right to appellate review of the arguments presented herein.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Our review reveals that that defendant was not properly advised of the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. |s930.8. The commitment reflects a proper advisal of the prescriptive period after defendant’s original sentence was imposed. However, the transcript and the waiver of rights form from defendant’s original sentencing reflect that defendant was advised that he had “two years from today’s date to seek post-conviction relief.” In accordance with the procedure now routinely employed by this Court, we advise defendant, by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of LSA-C.Cr.P. art. 914 or 922. See State v. Smith, 08-579 (La.App. 5 Cir. 2/25/09), 9 So.3d 238, 244, and State v. Ridgley, 08-675 (La.App. 5 Cir. 1/13/09), 7 So.3d 689, 703, writ denied, 09-0374 (La.11/6/09), 21 So.3d 301.

We further note an error with regard to the restriction of benefits in defendant’s sentence. As reflected in the commitment and the sentencing transcript, defendant’s enhanced sentence was imposed without benefit of parole, probation, or suspension of sentence. Neither the underlying statute nor the habitual offender statute provides for a prohibition of parole. See LSA-R.S. 14:65.1; LSA-R.S. 15:529.1(G).

When a sentencing error involves the imposition of restrictions beyond what the legislature has authorized in the sentencing statute, the Louisiana Supreme Court has ruled that the appellate courts should not rely on LSA-R.S. 15:301.1(A) to correct the error as a matter of law but should correct the sentence on its own authority under LSA-C.Cr.P. art. 882 to correct an illegal sentence “at any time.” State v. Sanders, 04-17 (La.5/14/04), 876 So.2d 42 (per curiam); State v. Johnson, 09-454 (La.App. 5 Cir. 11/24/09), 28 So.3d 1125, 1132, writ denied, 10-0001 (La.6/25/10), 38 So.3d 355. Thus, we amend defendant’s enhanced sentence to delete Lthe prohibition of parole. In accordance with our amendment, we remand the matter with instructions to the district court to amend the minute entry to reflect this change and to the clerk of court to transmit the amended 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).

For the reasons set forth herein, we affirm defendant’s conviction and sentence, as amended, and remand the matter to the district court with instructions relating to the amended sentence.

CONVICTION AND SENTENCE AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

      . See LSA-C.E. art. 404(B), which involves the admissibility of other crimes, wrongs, or acts.

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

      . In his brief, on page four, defendant states as follows: "The district court ruled that the statement allegedly made to Ms. Williams as well as the items confiscated from Miller’s person were admissible. Defense counsel objected to the court's ruling and it is argued herein that said ruling was reversible error.” The record before us does not support this assertion, but rather supports the State's contention that there were no rulings on these issues. The record does not reflect a ruling on the admissibility of defendant’s statement in question or the admissibility of the other crimes evidence. When a defendant does not object to the trial court’s failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. State v. Corzo, 04-791 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. In the present case, there is no indication that defendant objected to the lack of rulings, and in fact, he acknowledged that "the Court hadn’t ruled on any of the motions that we went over earlier.”


author: CHARLES R. JONES, Judge.

text:
    STATE of Louisiana v. Joseph MARINO.
    No. 2011-KA-0224.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Samuel Beardsley, Jr., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge PAUL A. BONIN, and Judge DANIEL L. DYSART).
   CHARLES R. JONES, Judge.

1 jThe Appellant, Joseph Marino, appeals his conviction for possession of heroin and his sentence of seven (7) years at hard labor with credit for time served. Finding that the district court erred in denying the motion to suppress of Marino, we reverse the judgment of the district court and remand this matter to the district court for further proceedings.

Defendant, Joseph Marino, was' charged by bill of information with possession of heroin. The district court later found probable cause and denied Marino’s motion to suppress evidence. Marino sought review of the district court’s ruling, and filed a writ application with this Court, which this Court denied, and noted: “The defendant’s application for supervisory writ is denied. In the event of a conviction, the defendant may re-raise the issue on appeal.” State v. Marino, unpub., 2010-1405 (La.App. 4 Cir. 10/6/10).

Subsequently, Marino appeared for trial and pled guilty pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced to serve seven (7) years at hard labor. The district court granted Marino’s motion for appeal. The instant appeal was timely lodged in this Court.

| {.Sergeant Jeff Sislo and Detectives Michael Dalfares, Christopher Henley, and Andrew Roccaforte investigated a tip from an untested confidential informant, who advised the officers that Joseph Marino was selling heroin in and around the city of New Orleans. The informant advised that he knew the subject was selling heroin because he had personally purchased heroin from the subject, although he did not give any specific times or dates when he purchased the heroin. The informant advised that the subject was a white male, aged fifty to fifty-five years, with gray hair. The informant further advised the officers of the location of the subject’s residence and the two vehicles he drove: a red Harley Davidson motorcycle and a blue Chevy truck.

Based on the informant’s tip, the officers set up a surveillance of the subject’s residence. During their surveillance, the officers observed Marino leave his residence, get onto a Harley Davidson motorcycle, and drive to a nearby bank in Algiers Point. The officers then observed Marino leave the bank, drive across the bridge to Jefferson Highway, and stop at an apartment on Berry Street in Jefferson Parish. The officers observed Marino go into the apartment, meet with an unknown black male, and come out of the apartment a short time later. The officers further observed Marino go back to his motorcycle, take his wallet out of the saddle bag on his motorcycle, put something into his wallet, get back on his motorcycle, and drive back into Orleans Parish.

Based on the information they received and the actions they witnessed, Sergeant Sislo and Detective Henley elected to stop Marino to investigate the incident further. The officers stopped Marino in the 8900 block of South Claiborne Avenue in Orleans Parish. Once they approached Mari-no, the officers advised Marino that he was under investigation for possession of narcotics and read him his Miranda rights. Sergeant Sislo testified that Marino was “kind of shaking and looking around a little bit. And ... his speech, his tone of voice just kind of changed once we told him he was | .-¡under investigation for narcotics.” The officers then asked Marino if they could search the saddle bag on his motorcycle, and Marino said they could. The officers opened the saddle bag, found a wallet inside, opened the wallet, and found two folded pieces of foil, both of which contained a tan powder they recognized to be heroin. The officers later conducted a preliminary field test of the tan powder, and it tested positive for heroin.

A review of the record reveals no patent errors.

In his appeal, Marino asserts four separate assignments of error: (1) his motion to suppress should have been granted because there was no reasonable suspicion or probable cause to stop defendant and search his belongings; (2) his motion to suppress should have been granted because he was arrested the moment he was stopped by the officers; (3) his motion to suppress should have been granted because he was not informed of his right to refuse the officer’s request to search his belongings; and (4) his motion to suppress should have been granted because he did not legally consent to a search. However, we find that assignments of error numbers 2-4 are repetitive and/or moot, as they are all adequately addressed by Marino’s initial assignment of error — that the officers had no reasonable suspicion or probable cause to stop him and search his belongings. Thus, a discussion of assignments of error numbers 2-4 is pretermitted.

Marino argues that the district court erred in denying his motion to suppress the evidence because the arresting officers lacked reasonable suspicion and/or probable cause to stop Marino and search his belongings. In support of his argument, Marino relies primarily on State v. Creecy, 98-1472 (La.App. 4 Cir. 7/14/99), 742 So.2d 615.

At a hearing on a motion to suppress, the State has the burden of proving the admissibility of all evidence seized without a warrant. La.C.Cr.P. art. 703(D). Trial courts are vested with great discretion when ruling on a motion to suppress, and the |4ruling of a trial judge on such a motion will not be disturbed absent an abuse of that discretion. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914.

In the instant case, the officers received a tip from an untested confidential informant that Marino was selling heroin throughout the City of New Orleans. The officers acted on the untested informant’s tip and set up surveillance of the residence of Marino. During their surveillance of his residence, the officers witnessed Mari-no get on his motorcycle and travel to a nearby bank. Thereafter, the officers witnessed Marino get back on his motorcycle, travel to an apartment in Jefferson Parish, go inside the apartment, and, shortly thereafter, exit the apartment. The officers then witnessed Marino take a wallet out of the saddle bag on his motorcycle, put something into his wallet, and drive away. Based on the foregoing acts, the officers elected to conduct an investigatory stop of Marino and pulled him over once he was back in Orleans Parish. After stopping him, the officers immediately told him that he was under investigation for possession of narcotics and read him his Miranda rights.

A law enforcement officer may stop a person in a public place whom he reasonably believes is committing, has committed, or is about to commit an offense. La.C.Cr.P. art. 215.1. However, the right to make such an investigatory stop must be based upon a reasonable suspicion that the individual has committed or is about to commit an offense. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389, 391 (La.1983). In assessing the reasonableness of an investigatory stop, the court must balance the need to search and seize against the invasion of privacy the search and seizure entails. State v. Tucker, 92-2093, 92-2130 (La.5/24/93), 626 So.2d 707; State v. Williams, 421 So.2d 874, 875 (La.982). The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Belton, 441 So.2d 1195 (La.1983).

The facts in State v. Creecy, 98-1472 (La.App. 4 Cir. 7/14/99), 742 So.2d 615, are somewhat similar to the facts of the instant case, although the issue in Creecy was whether the police had probable cause to arrest the defendant, and the issue in the instant case is more than just whether the police had probable cause to arrest the defendant, but whether the police had reasonable suspicion to detain the defendant.

In Creecy, an unknown and untested confidential informant indicated to the police that the defendant was selling marijuana from his residence. The factual basis for the informant’s knowledge was his own personal purchases of drugs from the defendant within the last seventy-two hours. The informant described the defendant, his clothing, and his vehicle, including the vehicle’s license plate number. The informant stated that defendant’s vehicle was parked near the front of his residence.

Based on the informant’s tip, the officers set up a surveillance of the area. They observed the defendant’s vehicle parked in the area, and they saw a high volume of pedestrian traffic going in and coming out of the alley way on the right side of defendant’s residence. The officers observed the defendant come outside of the residence and, believing their investigation had been compromised, decided to detain the defendant to prevent the possible destruction of evidence. The officers detained the defendant and advised him that he was under investigation for narcotics trafficking. They conducted a pat down search and recovered a bag of marijuana. Upon finding the marijuana, the officers obtained a search warrant for the defendant’s residence, where they seized additional narcotics and weapons. The district court denied the defendant’s motion to suppress. This court reversed, and held:

In the instant case, the informant provided [the officer] with the defendant’s name, his physical description, a description of his clothing, the address of the residence, a physical description of the location from which the marijuana was being sold, and the description, location, and license plate number of the defendant’s car. In addition, the informant advised [the officer] that he had personal knowledge of lr,drug activity, having purchased marijuana from the defendant at that location within the last seventy-two hours. As a result of this tip, [the officer] established a surveillance of the location during which he observed what he considered to be an inordinate amount of pedestrian traffic entering the alley leading to the defendant’s apartment. Several pedestrians entered the apartment, remained several minutes, and then left. At one point, a pedestrian became startled at the sight of the officer, entered the alley, and proceeded to the defendant’s apartment. Shortly thereafter, [the officer] observed a man, fitting the description of the defendant given by the informant, walk out of the apartment and look around. After conferring with other officers, the police then approached the defendant and arrested him.
Up to that point, the officers still did not have probable cause to effect the defendant’s arrest. The only indication of allegedly illegal activity on the part of the defendant was the informant’s claim that he had purchased drugs from the defendant at this location within seventy-two hours of making the tip known to the police. However, this unidentified person was not known to the police as a reliable informant, nor was his allegation of having purchased drugs from the defendant independently verified by a controlled purchase.
Furthermore, the surveillance conducted by [the officer] did not establish the informant’s veracity or reliability, much less verify the alleged basis of the informant’s knowledge. The information regarding the defendant’s physical description, his residence, and his vehicle were all innocent facts that could have been obtained by a casual observer. Tellingly, the informant did not provide information predicting the defendant’s future behavior, so that one could reasonably conclude, if the predictions came true, that the informant had knowledge of facts unknown to the general public. Without such information, the officers could not reasonably assess the untested informant’s inside knowledge of, or his “special familiarity” with, the defendant’s affairs.
Nor did the surveillance reveal any additional facts and circumstances suggesting that the defendant had engaged in criminal conduct. Though [the officer] in [his] warrant application described the traffic in the alley as “prolific,” he did not provide any basis for believing that such traffic indicated illegal drug activity. Except for the fact that there was a bar located in the same block as the residence, there is no statement that the neighborhood was a high crime area noted for illegal drug activity.
|7In sum, the officers had only a bald allegation from an unknown and untested informant that the defendant had sold him drugs. Were we to find probable cause on such a naked basis, given that a relatively observant onlooker can acquire accurate details describing a person, his residence, and his vehicle, any citizen would be subject to arrest on such a claim. We conclude that the officers did not possess sufficient facts and circumstances to justify a person of ordinary caution in believing the defendant was engaged in the sale of marijuana.
Id., 98-1472, pp. 8-9, 742 So.2d at 620-21.

In the matter sub judice, the officers, with the consent of Marino, seized drugs from his belongings, after the officer’s detained him for suspicion of possessing narcotics. It therefore must be determined whether the anonymous tip, together with subsequent corroboration by the police officers, provided reasonable suspicion for the investigatory detention of defendant. See, State v. Robertson, 97-2960, p. 5 (La.10/20/98), 721 So.2d 1268, 1270.

Marino was stopped by the officers based primarily on information given to them by an unknown and untested confidential informant. Although the officers were able to corroborate certain aspects of the anonymous tip, including Marino’s name, physical description, residence, and the location and description of his vehicles, the tip contained no predictive information from which the officers could reasonably determine whether the informant had “inside information” or a “special familiarity” with Marino’s affairs. See, Id. In particular, the tip failed to indicate the specific time period and location of when Marino had been or would be engaged in illegal activity. Since the tip did not provide sufficiently particular information concerning Marino’s future actions, an important basis for forming reasonable suspicion was absent. Id.

Furthermore, although the officers set up surveillance of Marino, they did not observe him engaging in any conduct which would justify the belief that he | scommitted or was about to commit a criminal offense. Indeed, according to Sergeant Sislo’s own testimony, Marino left his residence, got on his motorcycle, stopped at a nearby bank, and then drove to an apartment in Jefferson Parish. He was observed going into the Jefferson Parish apartment and leaving the apartment a short time later. Marino was then observed taking his wallet out of the saddle bag on his motorcycle and putting something inside of his wallet before driving back to Orleans Parish. Yet, despite the absence of suspicious conduct or corroboration of information from which the officers could have concluded that the anonymous informant’s allegation of criminal activity was reliable, the officers pulled Marino over while he was driving his motorcycle, advised him that he was under investigation for narcotics possession, and read him his Miranda rights. See also, Creecy, 97-2960, pp. 5-6, 721 So.2d at 1271.

Reasonable suspicion for an investigatory detention is something less than probable cause and must be determined under the specific facts of each case by whether the officer had sufficient knowledge of the facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. Robertson, 97-2960, pp. 2-3, 721 So.2d 1269. Therefore, in the instant case, justification for the investigatory detention of the defendant depends upon whether the anonymous tip, as corroborated by police, was sufficient to furnish reasonable suspicion of criminal activity. Id.

In the instant case, the officers detained Marino based on a tip from an untested and unknown confidential informant that he was selling narcotics. The tip did not predict any future criminal activity that Marino was set to engage in, nor did it describe with adequate specificity any past criminal activity that Marino had previously engaged in. Based on the tip, the officers set up surveillance of Marino’s residence. The officers’ surveillance failed to establish that Marino was engaging in any conduct which would justify the belief that he committed or was about to commit 13a criminal offense. The officers’ actions in stopping Marino therefore constituted an imminent actual stop, which was not made pursuant to reasonable suspicion, and was therefore made in violation of Marino’s constitutional rights. Consequently, the subsequent seizure of heroin from Mari-no’s belongings was also not lawful. As such, the evidence seized from Marino’s saddle bag should have been suppressed as the fruit of an unlawful arrest.

We find that this assignment of error has merit.

DECREE

For the foregoing reasons, the conviction and sentence of Joseph Marino is vacated, and the judgment of the district court is reversed. This matter is hereby remanded to the district court for further proceedings.

REVERSED AND REMANDED