author: STEWART, J.

text:
    Janis STRONG, Plaintiff-Appellant v. ELDORADO CASINO SHREVEPORT JOINT VENTURE; Eldorado Shreveport No. 1; Eldorado Shreveport No. 2, Defendants-Appellees.
    No. 46,464-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 10, 2011.

      McMichael, Medlin, D’Anna, Wedge-worth & Lafargue, Shreveport, LA, by James C. McMichael, Jr., for Appellant.
    Blanchard, Walker, O’Quin & Roberts, Shreveport, LA, by W. Michael Adams, Jerry Edwards, G. Adam Savoie, for Ap-pellees.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   STEWART, J.

hAt issue in this appeal is whether markers representing credit extended by the defendants, Eldorado Casino Shreveport Joint Venture, Eldorado Shreveport No. 1, and Eldorado Shreveport No. 2 (referred to collectively as “Eldorado”), to the plaintiff, Janis Strong (“Strong”), are enforceable. By summary judgment, the trial court concluded that the markers are enforceable and ordered Strong to pay the amount due plus damages, attorney fees, and costs as provided by La. R.S. 9:2782, totaling $190,600. Strong now appeals. Finding that there is no genuine issue of material fact and that summary judgment is appropriate as a matter of law, we affirm.

FACTS

On the night of August 12-13, 2009, Strong, a Texas resident and a longtime patron of Eldorado, a riverboat casino in Shreveport, Louisiana, executed three manual markers for $20,000 each (Markers No. 154990, 154991, and 154993), plus an additional marker for $12,000 (Marker No. 11470), for total credit of $72,000. While playing blackjack that night, Strong lost all the funds she had obtained on credit. That same night, Strong also cashed three checks totaling $60,000, and lost this amount as well. Thereafter, the three checks cleared Strong’s bank, but the markers, which Eldorado presented to Strong’s bank for payment on October 16, 2009, were returned marked “Not Sufficient Funds” (“NSF”). Eldorado pursued criminal charges based on the unpaid markers, and Strong was arrested in Cad-do Parish on December 22, 2009, for the charge of issuing worthless checks in an amount greater than $500.00.

|2On January 14, 2010, Strong filed a petition for a declaratory judgment on the issues of whether she owes Eldorado the amount of the unpaid markers and whether the markers are unenforceable as gambling debts under La. C.C. arts. 2983 and 2984. Eldorado filed an answer and a reconventional demand for the amount of the outstanding markers plus damages of twice the amount owed, attorney fees, and court costs as provided under La. R.S. 9:2782 for NSF checks. Eldorado asserted that, as required by the NSF statute, it made written demand for payment via certified mail on January 28, 2009, and that more than 15 days had passed without Strong paying the amount due.

On April 22, 2010, Eldorado filed a motion for summary judgment seeking the dismissal of Strong’s suit and the granting of its reconventional demand. Citing Players Lake Charles, LLC v. Tribble, 00-1143 (La.App. 3d Cir.1/31/01), 779 So.2d 1058, writ denied, 2001-0590 (La.4/27/01), 791 So.2d 118, Telerecovery of Louisiana v. Major, 98-1192 (La.App. 1st Cir.5/18/99), 734 So.2d 947, writ denied, 99-2293 (La.11/12/99), 750 So.2d 196, and Telerecovery of Louisiana v. Gaulon, 98-1363 (La.App. 5th Cir.6/1/99), 738 So.2d 662, writ denied, 99-1906 (La.10/8/99), 751 So.2d 224, Eldorado asserted that Louisiana courts have rejected the argument that markers are unenforceable gambling debts under La. C.C. arts. 2983 and 2984. Moreover, Eldorado asserted that the markers are to be treated as checks for purposes of the NSF statute as was done in Gaulon, supra. Eldorado offered in support of its motion the pleadings and the affidavit of its general manager, Michael Whitemaine, attached to which were copies of |athe markers, the demand letter, and the return receipt. According to Eldorado, the uncontested material facts that Strong executed the markers, that the markers were returned marked NSF when Eldorado attempted to negotiate them, that Eldorado made amicable demand for payment by letter of January 28, 2010, and that Strong has not tendered payment mandate summary judgment in its favor.

Strong opposed summary judgment on five grounds. First, Strong argued that Texas law, which does not permit gambling on credit or the enforcement of debts arising from such actions, applies in this matter. Strong subsequently amended her petition and answer to Eldorado’s recon-ventional demand to assert this position.

Although recognizing the precedent cited by Eldorado, Strong argued secondly that La. C.C. arts. 2983 and 2984 prohibit enforcement of the markers. Alternatively, she argued that these articles apply because the markers are illegal gambling debts due to Eldorado’s failure to follow its internal controls and the Louisiana Gaming Control Law, La. R.S. 27:1 et seq., in extending credit to her and in cashing her checks.

Third, Strong argued that the markers are not checks, drafts, or negotiable instruments as defined by La. R.S. 10:3-104. Fourth, she argued that Eldorado presented the markers for payment before the date on which the parties agreed they were due. Strong contends that the markers are not enforceable under La. R.S. 9:2782 for both reasons. Fifth, Strong argued that Eldorado failed to follow the strict guidelines of La. R.S. 9:2782. ^Finally, Strong argued that disputed material facts as to all of these issues preclude summary judgment.

Strong offered her affidavit, as well as the depositions of various Eldorado personnel, including Sharon Barnes, the Director of Compliance; Michael White-maine, the General Manager; Robert Urland, the Assistant General Manager; and Ian Cairns, the Director of Table Games. She also offered Eldorado’s internal controls and state law on credit play, check cashing, self-excluding and self-limiting, and compulsive gambling along with records pertaining to credit extended to her by Eldorado.

In response to Strong’s opposition, Eldorado offered additional evidence including excerpts from Strong’s deposition and a supplemental affidavit by Whitemaine addressing extensions of credit to Strong since 2006.

Eldorado’s motion was argued before the trial court on September 20, 2010. At the close of arguments, the trial court found the markers to be enforceable in accordance with the Telerecovery cases, supra. After Eldorado filed documentation of its requested attorney fees, the trial court signed the judgment granting Eldorado’s reconventional demand, ordering Strong to pay $144,000, with legal interest, plus attorney fees and expenses in the amount of $46,600, and dismissing Strong’s petition for declaratory judgment. Strong now appeals. Eldorado has answered to seek additional attorney fees for appellate work.

J^DISCUSSION

The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). A summary judgment is subject to a de novo review on appeal under the same criteria used by the trial court to determine whether summary judgment is appropriate. Stephenson v. Petrohawk Properties, L.P., 45,296 (La.App.2d Cir.6/2/10), 37 So.2d 1145. A motion for summary judgment shall be granted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to summary judgment as a matter of law.” La. C.C.P. art. 966(B).

The party who moves for summary judgment bears the burden of proof. La. C.C.P. art. 966(C)(2). When a motion for summary judgment is made and properly supported, the adverse party’s response “must set forth specific facts showing that there is a genuine issue for trial.” La. C.C.P. art. 967(B). Otherwise, the failure of the nonmoving party to produce evidence of a material factual dispute in response to a properly supported motion for summary judgment mandates the granting of the motion. Samaha v. Ran, 2007-1726, p. 4 (La.2/26/08), 977 So.2d 880, 883.

With these well-known principles and the provisions of La. C.C. arts. 966 and 967 in mind, we •will proceed with our de novo review of the summary judgment at issue.

| ^Eldorado moved for summary judgment on its reconventional demand for the amount due on the markers ($72,000), plus penalties and attorney fees as provided in La. R.S. 9:2782, which states:

A. Whenever any drawer of a check dishonored for nonsufficient funds fails to pay the obligation created by the check within fifteen working days after receipt of written demand for payment thereof delivered by certified or registered mail, the drawer shall be liable to the payee or a person subrogated to the rights of the payee for damages of twice the amount so owing, but in no case less than one hundred dollars plus attorney fees and court costs.
* * *
C.(l) Before any recovery under Subsection a of this Section may be claimed, a written demand in substantially the form which follows shall be sent by certified mail or registered mail to the drawer of the check at the address show on the instrument:
“You are hereby notified that a check numbered_, issued by you on_ (date), drawn upon _, (name of bank), and payable to _, has been dishonored. Pursuant to Louisiana law, you have fifteen working days from receipt of this notice to tender payment in full of the amount of the check plus a service charge of twenty-five dollars or five percent of the face amount of the check, whichever is greater, the total amount due being_Unless this amount is paid in full within the fifteen-working-day period, the holder of the check may file a civil action against you for two times the amount of the check or one hundred dollars, whichever is greater, plus any court costs and reasonable attorney fees incurred by the payee in taking the action.”
(2) Notice mailed by certified or registered mail evidenced by return receipt to the address printed on the check or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received by the person making the check.
(3) It shall be prima facie evidence that the drawer knew that the instrument would not be honored if notice mailed by certified or registered mail is returned to the sender when such notice is mailed within a reasonable time of dishonor to the address printed on the instrument or given by the drawer at the time of issuance of the check.

17Whitemaine’s affidavit states that Strong executed four makers totaling $72,000 in favor of Eldorado. He explains that a marker is a negotiable instrument evidencing the exchange of funds in the form of chips from the casino to a patron and the patron’s unconditional promise to pay the amount shown on the marker. The affidavit relates that the markers were returned marked NSF when Eldorado attempted to negotiate them. By demand letter dated January 29, 2010, Eldorado sought payment from Strong. Although she received the certified demand letter, Strong had not tendered payment. Copies of the markers signed by Strong and marked NSF by her bank, the certified demand letter, which appears in compliance with the requirements of La. R.S. 9:2782, and the return receipt were attached to White-maine’s affidavit.

Eldorado properly supported its motion for summary judgment by setting forth facts establishing its entitlement to the relief sought. To avoid summary judgment, Strong’s response must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). We will examine each of Strong’s arguments to determine whether she has met this burden.

Texas Law v. Louisiana Law

Strong argues that the trial court erred in granting summary judgment in favor of Eldorado because the law of Texas, rather than that of Louisiana, | ^applies. Texas has a strong public policy against gambling on credit and the enforcement of gambling debts. Carnival Leisure Industries, Ltd. v. Aubin, 938 F.2d 624 (5th Cir.1991). As such, Strong argues that the debt on the markers is unenforceable if Texas law applies. She contends that analysis under the conflict of laws provisions favors application of Texas law.

The general and residual rule governing conflict of laws issues is La. C.C. art. 3515, which states:

Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; (2) and the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.

As explained in Comment (a) of the Revision Comments-1991, La. C.C. art. 3515 provides the general principles from which the more specific conflict articles derive and in light of which they should be applied.

Because this matter concerns enforcement of a conventional obligation, La. C.C. art. 3537 is the more specific provision. Like Article 3515, La. C.C. art. 3537 directs that the issue is to be governed by the law of the state whose policies would be most seriously impaired if its law were not applied and explains this determination as follows:

That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, Land the place of domicile, habitual residence, or business of the parties; (2) the nature, type, and purpose of the contract; and (3) the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multi-state commercial intercourse, and of protecting one party from undue imposition by the other.

Instead of “a mechanistic counting of contacts” to determine which state’s law applies, the determinative contacts should relate to the state’s policies that would be most seriously impaired if its law were not applied to the issue. See La. C.C. art. 3537, Comment (E) of Revision Comments — 1991.

Strong asserts that she is a Texas resident and that the markers were presented to her bank in Texas for payment from funds in her Texas bank account. She argues that Texas has the most significant contacts and relationship to the parties and transaction at issue and that Texas’s public policy against enforcing gambling debts would be most seriously impaired if its law is not applied. She also asserts that there are disputed issues of material fact related to the factors to be considered under La. C.C. art. 3537 that preclude summary judgment.

Eldorado counters that there are no material facts in dispute that would prevent a determination of whether Texas or Louisiana law applies. We agree. The undisputed facts allow us to determine the applicable law.

While Texas has a strong public policy against gambling on credit and enforcing gambling debts, Louisiana’s public policy favors strictly regulated legalized gaming to promote the state’s economic development as expressed in La. R.S. 27:2(A). In authorizing riverboat gaming, the legislature declared the following public policy in La. R.S. 27:42(A)(1):

| in(l) The development of a historic riverboat industry is important to the economy of the state of Louisiana in that it will assist in the continuing growth of the tourism industry and thus will benefit the general welfare of our citizens and create new jobs.

The state’s public policy on gaming is reiterated in La. R.S. 27:202(B)(1).

Having established the competing policies of Texas and Louisiana, we must evaluate them in light of the factors outlined in La. C.C. art. 3537. Strong is a Texas resident who traveled to Louisiana on multiple occasions for the purpose of gambling. As shown by the depositions of Eldorado personnel and Strong’s own affidavit, she was a frequent patron of Eldorado in Shreveport where she had an existing line of credit since 2006. Strong negotiated, formed, and executed the four markers at issue in Louisiana. Strong used the markers to receive funds in the form of chips, and she used the chips to gamble. If luck had been on Strong’s side, she could have paid the markers with her winnings. Alas, she lost. The markers remained unpaid for over 30 days. Eldorado then attempted to negotiate the markers with Strong’s bank in Texas where they were dishonored due to insufficient funds in her account. None of these facts are disputed.

While both states have contacts with the parties, evaluation of each state’s public policy in light of these contacts, the purpose of the markers, and the policies outlined in Articles 3515 and 3537 establishes that Louisiana’s policy favoring legalized gaming to promote the state’s economic development and tourism would be most seriously impaired if its law is not applied. This policy would be thwarted if residents from states which disfavor gambling or the enforcement of gambling debts are allowed to rely on the application of such states’ laws to escape obligations incurred Inhere while willingly participating in sanctioned gaming activities. As pointed out by Eldorado, application of Texas law would likely mean that it and every other authorized casino in Louisiana would be unable to enforce markers against Texas residents who play at the various gaming establishments in this state. The inability to enforce markers would have negative consequences for the profitability of the casinos and thereby impair the promotion of economic development in this state through the riverboat gaming industry.

By availing herself of legalized gaming offered here, Strong would justifiably expect her relations with Eldorado or other Louisiana-based casinos to be governed by the laws of this state rather than those of Texas, where casino-based gaming is not available. Application of Louisiana law to determine whether markers are enforceable is particularly warranted in matters like this one where the obligation was incurred in Louisiana and is brought by the parties before the courts of this state to be enforced or declared unenforceable. Texas’s policy against gambling on credit and enforcing gambling debts will not be seriously impaired if its law is not applied because Strong did not gamble in Texas, she did not incur the debt there, and Texas courts are not being asked to enforce the debt in contravention of that state’s public policy.

112For these reasons, we find no merit to Strong’s argument that Texas law applies. Analysis under the conflict of laws provisions favors application of Louisiana law in this matter.

Enforcement of Markers Under Louisiana Law

Strong argues that the markers are unenforceable under La. C.C. arts. 2983 and 2984. Article 2983 prohibits an action for the payment of what has been won at gaming or by a bet, and Article 2984 prohibits an action by the loser to reclaim what he voluntarily paid, unless the winner engaged in fraud, deceit, or swindling. The issue of whether the enforcement of markers is prohibited by these provisions has been addressed by the first, third, and fifth circuit courts of appeal. Each has concluded that markers are enforceable.

In Major, supra, the issue before the court was whether checks and/or markers executed by the defendant while gambling at casinos are unenforceable under La. C.C. arts. 2983 and 2984. Reversing a summary judgment in favor of the defendant-debtor, the appellate court found that he had not incurred a gambling debt. Major had executed the markers in exchange for chips, which he then used to gamble. The court reasoned that he could have chosen to leave with the chips or convert them to cash rather | l3than gamble. The fact that Major chose to gamble with the chips had no bearing on the underlying obligation sought to be enforced, namely, the exchange of the checks/markers for the chips.

The third circuit in Tribble, supra, applied the same reasoning in enforcing a promissory note signed by the defendant. The obligation underlying the note was based on markers signed by Tribble at a casino and for which she received chips in a value equal to their amount. The court noted that Tribble could have exchanged the chips for cash rather than gamble. The fact that she gambled and lost did not make the debt on the markers a gambling debt.

Different reasoning was applied to reach the same result in Gaulon, supra. The court rejected the argument that markers are unenforceable under La. C.C. art. 2983 because they are incurred in an illegal activity. The court noted that the legislature authorized riverboat gaming as provided in La. R.S. 27:41 et seq., and that the crime of gambling defined in La. R.S. 14:90 does not include riverboat gaming activities. See La. R.S. 14:90(C). Because riverboat gaming activities are legal, the markers did not represent a debt incurred in an illegal activity and enforcement was not prohibited by La. C.C. art. 2983. See Lauer v. Catalanotto, 522 So.2d 656, 658 (La.App. 5th Cir.1988), stating that “C.C. Art. 2983’s prohibition of recovery for gambling debts is express and must be applied to debts resulting from all unauthorized forms of gambling.”

We agree with the reasoning of these decisions and decline Strong’s invitation to reach a different result. We find that it would be inconsistent 114for the legislature to permit gaming but prevent the enforcement of gaming-related debts. The gaming industry in Louisiana is subject to strict regulation under the Gaming Control Law. La. R.S. 27:2(A) states that “all persons, locations, practices, associations and activities related to the operation of licensed and qualified gaming establishments ... shall be strictly regulated.” See also La. R.S. 27:202(B)(3). We have found no provision under the Gaming Control Law that prohibits the extension of credit to a patron of a gaming establishment. In fact, a riverboat gaming licensee is expressly permitted to issue credit in its gaming operations. LAC 42:XIII.2729. Moreover, the regulations permit the collection of such debts on behalf of licensees by its employees, independent agents, attorneys, or affiliated or wholly-owned corporations, and bonded and licensed collection agencies. LAC 42X111.2921. It would be inconsistent and irreconcilable to allow for the extension and collection of credit yet prohibit the enforcement of such debts in our courts under La. C.C. arts. 2983 and 2984.

As made clear by Major, supra, the obligation to be enforced when such credit is extended is the exchange of the markers or checks for chips which a patron then by choice may use to gamble. If a patron instead chooses to exchange the chips for cash and fails to pay the marker, the debt still exists and clearly would be enforceable. The fact that a patron gambles and loses is of no bearing on his or her obligation to repay the debt on the | ^marker. Therefore, we find that enforcement of the four markers at issue is not prohibited by La. C.C. arts. 2983 and 2984.

Alternatively, Strong argues the markers are not enforceable because they 'did not arise from legal gaming activities conducted in accordance with the Gaming Control Law. She asserts that pursuant to La. R.S. 27:71 and applicable regulations, Eldorado was required to develop and follow certain internal control procedures. Strong claims that Eldorado’s failure in its dealings with her to follow its internal controls related to responsible gaming, check cashing policies and procedures, and the issuance of credit means that the markers are unenforceable. Specifically, she complains that Eldorado failed to honor her request to self-limit her credit line to $30,000, and that it permanently and improperly increased her credit on August 12-13, 2009, through the issuance of the TTO — This Trip Only Marker for $12,000 and by allowing her to cash three checks totaling $60,000. She complains that Eldorado processed her personal checks as business checks to allow her instant access to funds and thereby further extend her credit limit. She also complains that the increase in her credit limit that night was not authorized by the appropriate personnel.

Initially, we note that exhibits offered by the parties establish that Strong had self-limited her credit to $30,000 on November 13, 2008, after sustaining heavy losses that year and after Eldorado agreed to write off markers she owed totaling $150,000. Strong then signed a form on January 28, 2009, increasing her credit limit to $60,000. According to her deposition, she did not thereafter seek to have her limit reduced. The | ^increased limit was in effect for over six months as of August 12-13, 2009, when the markers at issue were executed. On the night at issue, Strong executed three markers of $20,000 each and an additional TTO — This Trip Only marker of $12,000. The TTO is a temporary increase of up to 20 percent of a patron’s credit limit and is specifically authorized by Eldorado’s internal controls. Additionally, Strong cashed three checks of $20,000 each. These checks were negotiated by Eldorado, honored by Strong’s bank, and have no bearing on whether the markers are enforceable.

Even if Eldorado failed to follow its internal controls as alleged by Strong, there is no support for her argument that such violations make the debt at issue one arising from illegal gaming activities and the markers unenforceable under La. C.C. arts. 2983 and 2984. As stated, the gaming industry is subject to strict regulation. La. R.S. 27:15(A) provides that all gaming activities and operations are regulated by the Gaming Control Board. The board has the authority to conduct administrative hearings and to impose civil penalties on gaming licensees or even revoke or suspend a license for violations of the provisions of the Gaming Control Law and its regulations. La. R.S. 27:15(D); LAC 42:XIII.2325. However, the Gaming Control Law does not provide that a violation by a licensee of its internal controls renders a marker unenforceable. Even if there are facts in dispute as to the alleged failure of Eldorado to have followed its internal controls, these facts are not material because the relief Strong seeks, to have the markers declared unenforceable, is not available.

117For these reasons, we find no issue of material fact and no merit to Strong’s argument that summary judgment is precluded because enforcement of the markers is prohibited by La. C.C. arts. 2983 and 2984 as illegal gaming debts.

Markers as Negotiable Instruments

Strong argues that the markers are not negotiable instruments and, therefore, are not enforceable under La. R.S. 9:2782. She asserts that the markers do not meet the requirements of La. R.S. 10:3-104(a)(l) or (2).

La. R.S. 10:3-104(a) defines “negotiable instrument,” in pertinent part, as an “unconditional promise or order to pay a fixed amount of money” that:

(1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
(2) is payable on demand or at a definite time; and
(3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money....

The TTO marker is payable to the order of Eldorado, thus satisfying the requirements of La. R.S. 10:8 — 104(a)(1). The other three markers do not name a payee. However, a promise or order that does not state a payee is payable to bearer. La. R.S. 10:3 — 109(a)(2). Under this provision, the markers are payable to Eldorado as bearer.

All four markers also satisfy the requirements of La. R.S. 10:3 — 104(a)(2). A promise or order that does not state any time of payment is payable on demand. La. R.S. 10:3 — 108(a). Because none of the markers state a time for payment, they are payable on demand. This is so regardless of |TSwhether, as alleged by Strong, Eldorado decides on a case-by-case basis when to demand payment.

For these reasons, we find no merit to Strong’s argument that summary judgment is precluded because the markers are not negotiable instruments.

Presentment Before Payment Due

Strong argues that Eldorado presented the markers for payment before they were due and for this reason may not enforce the markers under La. R.S. 9:2782. She asserts that, based on past dealings between the parties, payment was due within 30 days of the date of the markers unless extended or excused by Eldorado. She further asserts that Eldorado extended the payment date to October 31, 2009. This is based on a notation in Eldorado’s computer file pertaining to her which states “PER IAN PUSH MARKERS TO OCT. 31” and appears to have been entered on September 18, 2009. However, Whitemaine opted to negotiate the markers for payment on October 16, 2009.

As stated, the markers were payable on demand. Moreover, Eldorado’s internal controls on marker disposition state, “No credit authorizer may agree to settlement terms beyond 30 days unless approved by the General Manager.” Ian Cairns was not the general manager. Additionally, Strong met with Whitemaine, Urland, and Cairns before the markers were presented for payment. Strong stated in her deposition that she wanted to meet because she was upset that Whitemaine had not returned her call. Whitemaine stated in his deposition that they met about the unpaid | l9markers. Regardless of the reason, the depositions of Strong, Whitemaine, Cairns, and Urland indicate that the meeting did not go well. At the end of the meeting, Whitemaine asked her about the markers, and she told him, as stated in her deposition, “Mike, do whatever you want to.” This is related in Whitemaine’s deposition as well. A notation in Strong’s file entered October 15, 2009, reads “ALL MKRS SENT FOR DEPOSIT — 10/16/09. DO NOT HOLD PER WHITEMAINE.”

Based on the above, we find no merit to Strong’s argument that the markers were presented before they were due. The markers were clearly payable on demand, and Strong indicated to Whitemaine that he could do “whatever” he wanted to do with the markers. Thus, there was no agreement to extend the payment date to October 31, 2009. The markers were presented for payment and dishonored due to nonsufficient funds thereby entitling Eldorado to pursue relief under La. R.S. 9:2782.

Compliance with La. R.S. 9:2782

Strong complains that Eldorado failed to comply with the strict requirements of La. R.S. 9:2782 and is not entitled to judgment awarding the statutory damages, attorney fees, and costs.

It is clear that markers are enforceable under the NSF statute. Gaulon, supra. However, La. R.S. 9:2782 is penal in nature and must be strictly construed. Redden v. Ripley, 37,905 (La.App.2d Cir.12/10/03), 862 So.2d 469. Recovery under the NSF statute requires proof of written demand for payment in substantially the form provided by the statute, delivery by certified or registered mail to the drawer at the address shown | afton the instrument, proof of receipt, and nonpayment within 15 days of receipt of written demand. Cole Builders, L.L.C. v. J & J Properties of West Monroe, LLC, 42,214 (La.App.2d Cir.6/20/07), 961 So.2d 569.

Referring to her allegation that Eldorado presented the markers for payment before they were due, Strong argues that Eldorado cannot use La. R.S. 9:2782 to enforce an obligation that had not yet arisen. Because we have found that the markers are payable on demand, we find no merit to this argument.

Next, Strong asserts that Eldorado did not send written demand to the address on the markers as required by La. R.S. 9:2782(0(1). She points out that there is no address on the face of the markers and no evidence that she gave an address when the markers were issued. Eldorado counters that it had on file two addresses given by Strong when she initially applied for credit and that it sent the demand letter to both addresses.

La. R.S. 9:2782(0(1) states that the demand letter is to be mailed to “the address shown on the instrument,” but R.S. 9:2782(0(2) and (3) refer to the address printed on the check or given at the time of issuance. No address was printed on the face of the markers at issue in Gaulon, supra. However, the court did note that Gaulon did not challenge whether the formalities of the statute were followed. In TeleRecovery of Louisiana, Inc. v. Rayborn, 2001-0358 (La.App. 1st Cir.3/28/02), 814 So.2d 688, the court disallowed recovery under the NSF statute on the basis that the demand letter was not sent to the address that was shown on the markers. The markers had “12222 Florida Blvd.” as the street address, but the demand |21letter was addressed to “1222 Florida Blvd.” The record did not indicate whether the defendant had actually received the demand letter. Neither case is dispositive of the issue here.

Although no address is printed on Strong’s markers, Eldorado had on file at the time of issuance two addresses given by her. One was a post office box and the other was a business address. Strong provided the post office box address on her credit application, and the business address was on a copy of her driver’s license. Eldorado mailed the demand letter to both addresses on file. Strong admitted in her answer to Eldorado’s reconventional demand that she received the demand letter.

The markers were executed on the basis of Strong’s preexisting, approved line of credit. Eldorado had an ongoing relationship with her and had her addresses on file at the time of issuance of the markers. Thus, it had no need to obtain her address anew when it issued the markers, unlike a situation where an individual either first applies for credit or writes a check to some business and must provide identifying information for acceptance. Here, Strong already had given her address(es) to Eldorado when the markers were issued. On the basis of these facts, we find that Eldorado complied with the requirements of the NSF statute by mailing the demand letter to the addresses that had been given at the time of issuance of the markers.

Strong argues that under La. R.S. 9:2782, a check (marker) that does not accurately reflect the payee does not confer on the purported payee the right to enforce the check (marker). She notes that the three $20,000 |22markers did not name a payee. We have found that these markers were payable to bearer, namely, Eldorado. Moreover, as holder of the markers, Eldorado is entitled to enforce them. La. R.S. 10:3-301. We find no support for Strong’s argument in the NSF statute.

For these reasons, we find that summary judgment is not precluded on the basis that Eldorado failed to strictly comply with the provisions of La. R.S. 9:2782.

Disputed Issues of Material Fact

Lastly, Strong argues that there are disputed material facts that make summary judgment inappropriate. However, all the facts she alleges to be disputed pertain to the matters addressed in the other assignments of error. In conducting our de novo review of this record, we And no genuine issue of material fact for trial. We further find that Eldorado is entitled to summary judgment as a matter of law on its reconventional demand.

Eldorado's Answer to Appeal

Seeking additional attorney fees and expenses for work in defense of the appeal, Eldorado filed a timely answer to Strong’s appeal. In support of its request, Eldorado filed a motion to submit an affidavit requesting attorney fees and expenses totaling $9,432.80. Because no opposition to the motion has been received, we grant the motion to allow the affidavit to be filed in the record.

La. R.S. 9:2782(A) allows for the recovery of attorney fees, and Eldorado has already been awarded $46,600 in attorney fees and expenses by the trial court. When a party is awarded attorney fees by the trial court, 1 Mis forced to defend an appeal, and is successful on appeal, an increase in attorney fees is generally allowed. Even when requested, additional attorney fees may not be granted where the appellate court finds that the amount awarded in the trial court was sufficient to compensate counsel for both the work before the trial court and on appeal. Family Care Services, Inc. v. Owens, 45,505 (La.App.2d Cir.8/11/10), 46 So.3d 234; Sims v. Sun Chemical Corp., 34,947 (La.App.2d Cir.8/22/01), 795 So.2d 439. Reasonableness of attorney fees are determined by considering the ultimate result obtained, the responsibility incurred, the importance of the litigation, the amount of money involved, the intricacies of the facts involved, the diligence and skill of counsel, and the court’s own knowledge. Skannal v. Bamburg, 44,820 (La.App.2d Cir.1/27/10), 33 So.3d 227, writ denied, 2010-0707 (La.5/28/10), 36 So.3d 254; LSBA Rules of Prof. Conduct 1.5(a).

Here, counsel for Eldorado was successful in recovering the amount owed on the markers plus damages under the NSF statute for a total amount of $144,000, plus the aforementioned attorney fees and costs of slightly over 30 percent of the amount recovered. Unquestionably, counsel (for both sides) exhibited great diligence and skill in trying this matter, which involved multiple issues and facts for consideration. However, the threshold issues concerned whether the markers were even enforceable. This had to be determined before considering whether recovery was warranted under the NSF statute. Notably, the issues and arguments on appeal had already been fleshed out and thoroughly addressed in ^memorandum filed in the lower court in response to Strong’s opposition to summary judgment. Considering these factors and the amount already recovered, we find that an additional award of $2,500 is reasonable as an increase in attorney fees for defending the appeal.

CONCLUSION

For the reasons explained in this opinion, we affirm the trial court’s summary judgment in favor of Eldorado and its dismissal of Strong’s claim. We award Eldorado additional attorney fees for appeal in the amount of $2,500. Costs of appeal are assessed against Strong.

AFFIRMED.

      . The date on the judgment is September 8, 2010. This is apparently an error. The record shows that Eldorado filed an original and two copies of the judgment with the clerk of court on October 4, 2010, so that the original could be presented to the trial judge for execution. Notice of judgment was mailed to the parties on October 20, 2010.

      . Marker No. 11470 was not attached as an exhibit to Whitemaine’s affidavit. However, it was attached as an exhibit to the pleadings offered by Eldorado in support of its motion, and it was included as an exhibit in Eldorado’s response to Strong’s opposition filings.

      . In Texas, the courts have generally applied Texas law in matters involving the enforcement of a gambling debt incurred by a Texas resident. See Aubin, supra, and Carnival Leisure Industries, Ltd. v. Aubin, 53 F.3d 716 (5th Cir.1995), wherein the first case the debt incurred by a Texas resident at a casino in the Bahamas was held unenforceable in Texas due to its public policy against the enforcement of gambling debts, and in the latter case the casino was again refused recovery on the basis of that public policy even though it alleged the Texas resident committed fraud by signing the markers knowing they were unenforceable under Texas law. In bankruptcy proceedings involving Texas residents who owe gambling debts, the courts have applied Texas law and, on the basis of its policy against gambling debts, denied complaints by casinos alleging such debts are not discharge-able. See PNK v. Guevara, 409 B.R. 442 (Bankr.S.D.Tex.2009), and PNK v. Tarkbaf, Not Reported (Bankr.S.D.Tex.2010), 2010 WL 148412. However, the U.S. District Court for the Southern District of Texas in an unpublished opinion, Jazz Casino Company v. Rhodes, No. 02-2449 (2003), applied Louisiana’s conflict of law rules and determined that under these rules Louisiana law must be applied to determine whether a gambling debt incurred in Louisiana by a Texas resident is dischargeable in a bankruptcy filed in Texas. While these cases are informative as to what Texas courts will do in proceedings brought to enforce gambling debts against Texas residents, they are not determinative of whether the law of Louisiana or Texas applies in this matter.

      . Regulations set forth in the Louisiana Administrative Code are promulgated in accordance with La. R.S. 27:15 and R.S. 27:24.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana in the Interest of J.A.
    No. 46,649-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 10, 2011.

      Kammer & Huckabay, Ltd., Shreveport, LA, By Charles H. Kammer, III, for Appellant.
    Charles Rex Scott, District Attorney, Lisa Ryder, Brian H. Barber, George Winston, Assistant District Attorneys, for Ap-pellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   MOORE, J.

| |J.A., age 16, admitted indecent behavior with a juvenile in violation of La. R.S. 14:81. The court adjudicated him a delinquent and ordered that he be committed to the custody of the Office of Juvenile Justice (OJJ) in a non-secure care facility for a period of time until his twenty-first birthday. J.A. filed this appeal alleging that the commitment is constitutionally excessive. For the following reasons, we affirm.

FACTS

While authorities were questioning the 11-year-old victim, B.A., regarding sexual molestation by her stepfather, she disclosed that she had also engaged in sexual activity with her “stepbrother,” J.A. several times in 2009 while the two stayed with their grandparents. At the time the incidents occurred, J.A. was 14 years old and B.A. was 9 years old. The sexual activity consisted of rubbing, “humping,” and reciprocal oral sex. No intercourse occurred.

On November 19, 2010, the Caddo Parish DA’s Office filed a petition in the Juvenile Court requesting that J.A. be adjudicated a delinquent.

On January 24, 2011, the juvenile admitted to the charge of indecent behavior with a juvenile in exchange for dismissal of the charge of oral sexual battery.

On March 10, 2011, a disposition hearing was held in which evidence including reports and testimony from social workers and psychologists who had performed various tests upon J.A. was adduced. The matter was continued until March 21, 2011, so that a victim impact ^statement could be provided to the trial judge.

On March 21, 2011, the trial judge adjudicated J.A. as a delinquent and committed him to the Office of Juvenile Justice until his 21st birthday, with a recommendation for non-secure care placement at Rutherford House. Due to the seriousness of the crime, the court ordered that J.A. continue sexual perpetrator counseling. The matter was set for an evaluation and placement hearing on April 4, 2011, and the trial judge indicated that his decision was subject to review on September 29, 2011.

J.A. filed a motion for appeal which was granted on March 25, 2011.

DISCUSSION

By his first assignment, counsel alleges that placing J.A. in the custody of the Office of Juvenile Justice until his twenty-first (21st) birthday, a period in excess of four years, was contrary to the law and evidence and constitutes a constitutionally excessive commitment by failing to consider the least restrictive disposition.

The primary complaint pertains to the alleged excessive length of the appellant’s commitment to the custody of the OJJ. He complains that custody at Rutherford House until age 21 was not recommended by the probation officer or the sexual counseling expert. The probation officer recommended that J.A. be committed to the OJJ for a period of two years, with the term of commitment being suspended, and that the juvenile be placed on probation for a period of two years.

The probation officer testified that in her 15-year history with the OJJ, she had never recommended such a lenient disposition as in this case. |RShe noted that the incidents did not involve penetration; the victim was receiving appropriate counseling services; the victim’s family did not want J.A. incarcerated; J.A. did not set out to actively engage in this type of behavior; J.A. had no history of sexual activity; J.A. was extremely remorseful and ashamed of his actions; J.A. has a loving and supportive family who have followed the court’s recommendations in all respects; the psychosexual evaluation supported her position, and she did not think J.A. would re-offend.

In light of these factors, counsel contends that the trial judge abused his discretion in removing J.A. from his mother’s home, especially because such a disposition is contrary to La. Ch.C. art. 901, which dictates that a court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal. He argues that the court should impose the least restrictive disposition authorized by La. Ch. C. arts. 897 through 900.

He further contends that there is no evidence that the welfare or the safety and protection of the public cannot be adequately safeguarded without the removal of J.A. from his mother’s home, and the trial court imposed the lengthy commitment on grounds that a lesser commitment would deprecate the seriousness of the offense. Accordingly, he argues that the trial judge’s decision is punitive in nature rather than rehabilitative and the disposition should be considered constitutionally excessive.

| initially, we note that Art. 898 of the Louisiana Children’s Code requires that “[n]o disposition shall remain in force for a period exceeding the maximum term of imprisonment for the felony forming the basis for the adjudication.” The felony offense of indecent behavior with a juvenile is punishable by a term of imprisonment with or without hard labor for not more than seven year's. La. R.S. 14:81. Because the term of commitment of J.A. to the custody of the OJJ until his 21st birthday is between 4 and 5 years, it is within the limits of the statute. Nevertheless, a sentence within the statutory limit may violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). A sentencing judge does not possess unbridled discretion to impose a sentence within statutory limits, regardless of mitigating facts. La.-Const. art. 1, § 20. Id.

Part D of La. Ch. C. art. 901 lists the mitigating factors for the trial court’s consideration in fashioning an appropriate disposition for a juvenile and states that the grounds, while not controlling the discretion of the court, shall be accorded weight in the determination of suspension of the disposition or probation.

La. Ch. C. art. 909 concerns modification of the disposition and states as follows:

Except as provided for in Article 897.1, after the entry of any order of disposition, the court retains the power to modify it, including changing the child’s legal custody, suspending all or part of any order of commitment, discharging conditions of probation, or adding any further condition authorized by Article 897(B) or 899(B). It may also terminate an order of disposition at any time while it is still in force.

In State in the Interest of T.L., 674 So.2d 1122 (La.App. 2 Cir. 5/8/96), this court stated that the judge adjudicating a child delinquent should impose the least restrictive disposition consistent with the circumstances of the case, the needs of the child, and the best interest of society. In any review of an adjudication of delinquency for constitutional excessiveness, the appellate court must first ascertain whether the lower tribunal took cognizance of the circumstances of the case, the needs of the child, and the best interest of society, and whether the record reflects an adequate factual basis for the commitment imposed. The test to be used in deciding whether the sentence imposed was excessive requires consideration of whether the sentencing judge took cognizance of the guidelines’ criteria and whether the sentence was too severe in light of the circumstances and the juvenile’s background. Absent a showing of manifest abuse of wide discretion, the disposition in a juvenile delinquency proceeding will not be set aside as constitutionally excessive. State in the Interest of T.L., supra.

In this case, the record reflects that the trial judge expressly considered the disposition guidelines provided by Art. 901 when considering his dispositional options. The court noted that the sexual acts of 14-year-old J.A. committed on the 9-year-old B.A. could not be characterized as experimentation, but were committed for J.A.’s own sexual gratification. The court also noted that the considerable age difference made this offense more serious and had greater impact on the very young victim in this case. Reviewing each of the factors under Art. 901, the court | (¡concluded that only the third factor, that a “lesser disposition will deprecate the seriousness of the child’s delinquent act,” indicated that some period of commitment was needed.

The court also reviewed each of the mitigating grounds in Art. 901 that should be given weight in determining whether suspension of the disposition or probation is appropriate. He found none applied in this instance. He concluded that the serious nature of the offense coupled with the impact on the child made a period of confinement necessary in this case. The court placed J.A. in the custody of OJJ until his 21st birthday in the non-secure group home setting.

We point out that this appeal was based upon the disposition rendered on March 21, 2011, from which J.A. filed his appeal four days later on March 25, 2011. However, on April 4, 2011, the trial judge accepted the OJJ’s decision to return J.A. to his mother’s home, to return him to the high school he was previously attending, and to keep J.A. in the custody of the OJJ until the decision was further modified by the trial judge. This was a legitimate modification of the disposition under La. Ch. C. art. 909, and it was approved by the judge at the hearing.

We conclude, based upon our review of the entire record, that the disposition rendered by the trial court was well-tailored to the facts in this case. This was a serious offense committed on a very young victim. We observe that J.A. had a tendency to account for his sexual behavior with B.A., at least in part, as arising from B.A.’s own allegedly seductive behavior. However, this account is not substantially corroborated by the 17record, including the documents on file in this record regarding B.A.’s account of what happened. We think the trial court recognized this when it wisely ordered that the state produce victim impact evidence before rendering its disposition.

Finally, we note that the trial court clearly expressed its willingness to modify its order of disposition under Art. 909, and, in fact, did so on April 4, 2011. Other future modifications, including suspension or termination of the disposition, are certainly possible. Based on these considerations, there appears to be no argument left upon which to base a claim of constitutional excessiveness of the disposition.

CONCLUSION

We therefore conclude that the disposition of the trial court was not constitutionally excessive, nor an abuse of the court’s discretion. The disposition is affirmed.

AFFIRMED.

      . Although much of the record and hearing transcripts refer to J.A. as B.A.’s stepbrother, J.A. is actually B.A.’s half brother. Both children have the same father.


author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Alton KENNEDY.
    No. 2010-KA-1606.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 10, 2011.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Scott G. Vincent, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for De-fendanVAppellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   JAMES F. McKAY III, Judge.

|, STATEMENT OF CASE

On November 5, 2009, the defendant, Alton Kennedy, was charged by bill of information with one count of armed robbery, in violation of La. R.S. MAT. At his arraignment on November 9, 2009, the defendant pled not guilty to the offense charged. The defendant filed discovery and suppression motions on November 13, 2009. After a preliminary and suppression hearing on January 25, 2010, the trial court found probable cause and denied defendant’s motions to suppress identification and statement. Prior to trial on April 7, 2010, the State informed the trial court that it was invoking the additional sentencing provisions of La. R.S. 14:64.3. After a jury trial, the defendant was found guilty as charged. On April 29, 2010, the defendant was sentenced to thirty years at hard labor without benefit of probation, parole or suspension of sentence and with credit for time served. A multiple offender hearing took place on November 12, 2010. The defendant was adjudicated a third felony offender; the prior sentence was vacated; and the defendant was resentenced to eighty years at hard labor. The defendant filed a motion to reconsider sentence which was denied.

^STATEMENT OF FACT

On August 13, 2009, New Orleans Police Detective Willie Jenkins responded to a call of an armed robbery at the Gemini Bar, located at 141 Chartres Street. When Jenkins arrived on the scene, he met with Officer Dwight Aucoin, the first officer to arrive on the scene. The detective then met with the two victims, Christian Hortzenstein and Susan Love, and a witness, Anthony Bourgeois. Detective Jenkins was advised that the lounge had several surveillance cameras. After reviewing the footage from the surveillance cameras, the detective developed a suspect. Detective Jenkins put together a photographic lineup, which he presented to the victims and the witness. The victims and the witness identified the defendant as the perpetrator. Detective Jenkins obtained an arrest warrant for the defendant. After the defendant was arrested, Detective Jenkins took a statement from the defendant. The defendant was advised of his rights prior to giving the statement. The defendant stated he understood his rights and signed the rights of arrestee form. Defendant’s statement was video-recorded. In his statement, the defendant admitted to robbing the bar. He stated that he showed his gun to the two women and told them to give him the money. He took the money and left the bar.

Anthony Bourgeois was a patron at the Gemini Bar on the evening of August 13, 2009. He observed the defendant walk up to the bar, show a gun to the bartenders and tell the bartenders to give him the money. Christian, one of the bartenders, gave the money box to the defendant, and the defendant left the bar. Mr. Bourgeois attempted to chase the defendant, but he got away. Mr. Bourgeois identified the defendant at trial and in the photographic lineup as the person who robbed the Gemini Bar.

|sSusan Love was employed as a bartender at the Gemini Bar on August 13, 2009. She was working the 11:00 a.m. to 10:00 p.m. shift. Shortly before her shift ended, the defendant approached the bar, where both she and Christian were standing, and pulled a gun out of his pants. The defendant told her to give him the money box. After she gave him the money box, he left the bar. Ms. Love stated that the defendant had been in the bar for about an hour before he robbed her. She recognized the defendant because he had come to the bar on several occasions for two to three months prior to the robbery. Ms. Love identified the defendant at trial and in the photographic lineup as the person who robbed the Gemini Bar.

Christian Hortzenstein was also a bartender at the Gemini Bar on August 13, 2009. She arrived at the lounge at approximately 9:45 p.m. to relieve Susan Love. Ms. Hortzenstein was scheduled to work the 10:00 p.m. to 8:00 a.m. shift. She was standing at the bar with Ms. Love when the defendant approached them and pulled out a gun. The defendant told them to give him the money box, which contained one thousand nine hundred and fifty dollars. The defendant took the money box and left the bar. Ms. Hortzenstein stated that she recognized the defendant as a frequent patron. She testified that the defendant had been coming to the bar for over a year, about two times a month. Ms. Hortzenstein identified the defendant at trial and in the photographic lineup as the person who robbed the Gemini Bar.

ERRORS PATENT

A review of the record for errors patent reveals that the trial court imposed an illegally lenient sentence when it resen-tenced the defendant under the multiple offender statute. The trial court sentenced the defendant to serve eighty years at hard labor with credit for time served. However, La. R.S. 14:64 provides that the sentence should be imposed without benefit of probation, parole, or suspension of 14sentence. Furthermore, La. R.S. 15:529.1(G) states that any sentence imposed under the multiple offender statute shall be imposed without benefit of probation or suspension of sentence. Under La. R.S. 15:301.1(A) and State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with these restrictions of benefits, even in the absence of the trial court’s failure to delineate them. Thus, there is no need for this Court to correct the sentences. See State v. Phillips, 2003-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675.

However, the State invoked the sentencing requirements under La. R.S. 14:64.3, which provides that a defendant convicted of an armed robbery using a firearm, shall be “imprisoned at hard labor for an additional period of five years without benefit of parole, probation or suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:64.” This Court held in State v. Burton, 2009-0826 (La.App. 4 Cir. 7/14/10), 43 So.3d 1073, that the failure to sentence a defendant under La. R.S. 14:64.3, when the State has invoked the statute requiring the enhancement of the sentence, requires that the matter be remanded for resentencing. This Court stated in Burton:

In cases where the minimum sentence was not imposed, the Second, Third, and Fifth Circuits have held that the sentences are indeterminate, requiring that the sentences be vacated and the matter remanded for resentencing according to law for clarification of whether the defendant’s sentence includes any additional punishment under La. R.S. 14:64.3. See State v. Weaver, 38,322 (La.App. 2 Cir. 5/12/04), 873 So.2d 909; State v. McGinnis [2007-1419], (La.App. 3 Cir. 4/30/08), 981 So.2d 881; State v. Price, 04-812 (La.App. 5 Cir. 3/1/05), 909 So.2d 612. In light of these cases, we vacate the appellant’s sentence and remand the matter remanded for resentencing.

Burton, p. 3, 43 So.3d at 1076.

No other patent errors were found.

DISCUSSION

| ¿ASSIGNMENT OF ERROR NUMBER 1

In his first assignment, the defendant contends that the trial judge should have sua sponte recused herself from the defendant’s multiple bill proceedings based on the fact that she was the prosecutor in one of the cases used for enhancement. It should be noted that the defendant failed to move for recusal of the trial judge. Thus, this alleged error is waived. La. C.Cr.P. arts. 671 and 674; State v. Williams, 580 So.2d 448 (La.App. 5 Cir.1991); State v. Kendrick, 96-1636 (La.App. 3 Cir. 6/25/97), 699 So.2d 424.

Because the defendant argues that the trial judge should have recused herself on her own motion, this alleged error will be discussed. La.C.Cr.P. art. 671 provides in pertinent part:

A. In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
(2) Is ... an attorney employed in the cause, or of the district attorney;
(3) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause;
******

(5) Has performed a judicial act in the case in another court; or

(6) Would be unable, for any other reason, to conduct a fair and impartial trial.

These grounds are exclusive, not illustrative. In re Lemoine, 96-2116, pp. 10-11 (La.1/14/97), 686 So.2d 837, 843, on rehearing, 96-2116 (La.4/4/97), 692 So.2d 358. Under La.C.Cr.P. art. 672, a judge may recuse himself, whether or not a motion has been filed, in any case in which a ground for recusation exists.

The Louisiana Supreme Court discussed the issue of whether a trial court judge must recuse himself in a case in State v. Connolly, 2006-0540, pp. 4-8 (La.6/2/06), 930 So.2d 951, 953-955, in which the Court stated:

|(iA trial judge must step down in any case in which he is “biased, prejudiced or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial.” La.C.Cr.P. art. 671(A)(1); Offl Rev. Cm’t (“Ground (1) is the most important ground for recusation.... Recognition of bias or prejudice as a ground for recusation is in line with the basic purpose of recusation procedure, ie. to protect the defendant’s right to a fair and impartial trial.”) A trial judge must also recuse himself even in the absence of a showing of specific bias or prejudice when he “[h]as been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause-” La.C.Cr.P. art. 671(A)(3).
However, this Court has not required a trial judge to recuse himself from a case on grounds that he had previously prosecuted the defendant in a prior, unrelated case, and therefore might harbor some bias or prejudice against the defendant for that reason alone, (citations omitted)- Nor has this Court required the disqualification of a judge solely on the basis of his or her coincidental employment in the District Attorney’s Office at the time the defendant was charged in a case over which the judge had no supervision or control before assuming the bench. State v. Bradford, 99-0996 (La.5/14/99), 735 So.2d 619 (La.1999).... We thus declined to treat assistant district attorneys within the same office as an “association” of lawyers within a law firm for purposes of La.C.Cr.P. art. 671(A)(3) ... The result in Bradford accords with' the majority rule in other state jurisdictions that “judges are not disqualified solely on the basis that they were formerly employed by the prosecutor’s office.... [T]he judge to be disqualified must have performed some role in the case or have obtained actual knowledge of disputed evidentiary facts of the case[.]” ... Accordingly, a judge must disqualify himself sua sponte or in response to a motion to recuse only “if the facts exist tying the judge to personal knowledge of disputed evidentiary facts concerning the proceeding, some supervisory role over the attorneys who are prosecuting the case, or some role in the investigation and prosecution of the case during the judge’s former employment.” (citations omitted).

In State v. Turner, 2010-0038 (La.App. 4 Cir. 9/29/10), 50 So.3d 836, writ denied, 2010-2383 (La.2/25/11), 58 So.3d 460, the defendant filed a motion to recuse the trial court judge, who had been the acting district attorney, when the matter was allotted to the section to which the trial court judge was later elected. The motion to recuse was denied on the basis that there was no evidence presented that the trial court judge could not be fair and impartial. This Court found that there was no abuse of discretion in the denial of the motion to recuse. The Court 17noted that there was no evidence to indicate that the trial judge had any direct involvement in the defendant’s case at the time the case was allotted.

In the present case, the defendant relies upon this Court’s decision in State v. Williams, 2000-0011 (La.App. 4 Cir. 5/9/01), 788 So.2d 515, in which the defendant sought to have the trial court judge removed because she had been employed with the district attorney’s office while the defendant’s case had been considered. This Court noted that there was no evidence that the trial court judge had any direct connection with defendant’s case while employed by the district attorney’s office. The Court recognized that the judge was employed as an assistant district attorney at some point while defendant’s case was being considered for prosecution by the district attorney’s office and at the time defendant was indicted. This Court stated that the trial court judge should have recused herself but found the failure to recuse was harmless error. It should be noted that this Court’s decision in Williams was rendered before the Supreme Court’s decision in Connolly in which the Supreme Court stated that it will not “treat assistant district attorneys within the same office as an ‘association’ of lawyers within a law firm for purposes of La.C.Cr.P. ai't. 671(A)(3).” Thus, we find that the Williams decision would be decided differently today in light of Connolly.

In the case at bar, the defendant contends that the trial court judge should have recused herself from the multiple offender hearing because she was one of the prosecutors assigned to Section “G” at the time of one his prior offenses. The defendant relies upon the trial judge’s statement at the suppression hearing, after reviewing certified copies of the defendant’s prior convictions provided by the State. The trial judge stated:

|SI see that Mr. Kennedy’s — one of his prior felony convictions is out of Section “G” of Criminal District Court at a time period when I was a prosecutor in Section “G” of Criminal District Court. I don’t know for certain that I participated in Mr. Kennedy’s prosecution for that offense.

The minute entry from one of the defendant’s guilty pleas submitted at the multiple offender hearing reveals that the trial judge was one of two assistant district attorneys assigned to Section “G” on the day that the defendant pled guilty. The docket master for the prior offense indicates that the defendant pled guilty three days after the filing of the bill of information. The alleged crime took place in March 1998. The bill of information was filed on June 1, 1998, and the defendant pled guilty on June 4,1998.

La.C.Cr.P. article 671(A)(3) provides that a trial judge shall be recused when he or she “[h]as been employed or consulted as an attorney in the cause.” There are no allegations that the trial judge has been involved in the present case as an attorney. The defendant’s sole argument for recusal is that the trial judge was one of the assistant district attorneys assigned to Section “G” at the time of his guilty plea. The “cause” referenced in the codal article refers to the case presently being litigated, not a prior case.

In addition, the case in which the defendant pled guilty occurred over ten years ago, and he pled guilty within four days of the bill of information being filed and assigned to Section “G.” The defendant has made no allegations or presented evidence that the trial judge was involved in the plea negotiations.

Accordingly, the trial judge was not required to recuse herself from conducting the multiple offender hearing. This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 2

|9The defendant further argues that his trial counsel was ineffective for failing to file a motion to recuse the trial judge from the multiple offender proceedings.

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1030 (La.App. 4 Cir.1990); State v. Reed 483 So.2d 1278 (La.App. 4 Cir.1986). Only if the record discloses sufficient evidence to rule on the merits of the claim do the interests of judicial economy justify consideration of the issues on appeal. See State v. Green, 562 So.2d 35 (La.App. 3 Cir.1990); State v. Seiss, 428 So.2d 444 (La.1983); State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Garland, 482 So.2d 138 (La.App. 4 Cir.1986); State v. Landry, 499 So.2d 1320 (La.App. 4 Cir.1986).

The defendant’s claim of ineffective assistance of counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). The defendant must show that counsel’s performance was deficient and that the deficiency prejudiced the defendant. Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 693, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992).

As stated above, the defendant has shown no basis for the trial judge’s recusal from the multiple offender proceedings. Thus, there was no basis for defendant’s trial counsel to file a motion to recuse. Defendant’s counsel was not ineffective for failing to file a motion to recuse the trial judge. This assignment is without merit.

CONCLUSION

Based upon applicable law and jurisprudence we affirm the defendant’s conviction. However, we vacate the defendant’s sentence and remand the matter for resen-tencing.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING

      . The defendant was also charged in the bill of information with possession of a firearm by a convicted felon but the State did not proceed to trial on that count.


author: MOORE, J. GASKINS, J.,

text:
    STATE of Louisiana, Appellee v. Cedric Dewayne RUSSELL a/k/a Eric Wilson, Appellant.
    No. 46,426-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 17, 2011.

      Louisiana Appellate Project, by Douglas Lee Harville, for Appellant.
    Charles Rex Scott, District Attorney, Jason Trevor Brown, Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   MOORE, J.

|! Cedric Dewayne Russell, a/k/a Eric Wilson, appeals his conviction for possession with intent to distribute a Schedule II controlled dangerous substance (cocaine), his adjudication as a fourth felony offender, and his sentence of 45 years at hard labor without benefits. For the reasons expressed, we affirm the conviction; however, we reverse the adjudication as a fourth felony offender, vacate the sentence and remand the case for further proceedings.

Factual Background

In late July 2006, Shreveport Police Agent Erick Ardoin obtained a “no-knock” search warrant for 4706 Adams Street in Shreveport’s Caddo Heights neighborhood. On July 31 at 1:00 p.m., on information that the suspected drug dealer, Russell, would be at home, a special response team surrounded the house and a street level interdiction unit forced open the door to execute the warrant. Russell was not in the house, but his girlfriend, Felicia Stewart, was; agents arrested her and found a small amount of marijuana in a pink plastic bag in plain view in the living room.

Caddo Parish Sheriffs Officer Jamie McLamb led his Belgian Malinois, Congo, around the perimeter; Congo sniffed out a quantity of cocaine (later determined to be 12 grams) in a Ziploc bag concealed on the inner ledge of a pier and beam supporting the house. Next to the large Ziploc bag was a smaller plastic bag containing about 100 very small, pink Ziploc “jeweler bags.”

Agents seized and secured the drugs and bags. They also seized photographs showing Russell and Ms. Stewart together, as well as several ^pieces of mail addressed to Russell at 4706 Adams Street.

Sometime during the search, a man matching Russell’s description approached the house on foot. Agent J. Allen Alkire, who was working the perimeter, recognized him and started walking toward him; the man turned around and ran south toward Hollywood Avenue. Agent Alkire gave chase but the fleeing man got away; Alkire was certain it was Russell.

Four days later, the street level interdiction unit returned to the house at 1:00 p.m. and found Russell sitting in the living room watching TV. Agent Ardoin arrested him without incident.

Procedural History

The state initially charged Russell with two counts of distribution of cocaine, for incidents occurring in late July 2006, and one count of possession with intent to distribute cocaine, arising from the search and seizure on July 81. On the morning of trial in February 2008, the state amended the bill to charge only possession with intent to distribute cocaine.

Testifying for the state, Agents Ardoin and Alkire and Officer McLamb set out the facts summarized above. Randall Ro-billard, an expert from the North Louisiana Crime Lab, confirmed that the material seized from the living room was 1.14 grams of marijuana and that seized from the pier and beam was 12 grams of cocaine. Police Sergeant Carl Townley, an expert in narcotics, testified that this amount of cocaine was much greater than normal for personal use; in fact, it was worth about $1,600 on the street and the 100 or so jeweler bags were consistent with distribution. Sgt. Townley also testified that in the drug community, there is a widespread |a(yet erroneous) belief that if drugs are found under a house, the owner of the house cannot be charged. Lt. Owen McDonnell, an expert in fingerprint identification, testified that it was very difficult to lift latent prints off plastic bags, and that he would not process tiny jeweler bags. Aside from cross-examining the state’s witnesses, Russell put on no evidence.

The 12-member jury unanimously found Russell guilty as charged. Russell filed two motions for new trial and one for post verdict judgment of acquittal; these were denied after hearings over several months.

The state filed a bill of information charging Russell as a fourth felony offender, citing as predicate offenses his 1990 guilty plea to unauthorized use of a movable, 1992 guilty plea to possession of cocaine and 1996 guilty plea to simple burglary. Russell filed a motion to quash the multiple offender bill, alleging inter alia that when he entered his 1996 guilty plea, the district court failed to advise him adequately of his right of confrontation under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). After a hearing in August 2009, the court denied the motion to quash, finding that the 1996 Boykin colloquy was “somewhat inartfully” expressed yet sufficient. The court adjudicated him a fourth felony offender and sentenced him to 45 years at hard labor, without benefit of probation, parole or suspension of sentence. The court denied Russell’s motion to reconsider sentence, and this appeal followed.

Discussion: Sufficiency of Evidence

By his first assignment of error, Russell urges the evidence was insufficient to convict him of possession with intent to distribute. He ^concedes that the state offered evidence that the cocaine was in a form usually associated with distribution, but argues the state failed to prove he had actual or constructive possession of it, according to the factors in State v. Douglas, 30,393 (La.App. 2 Cir. 2/25/98), 707 So.2d 512. He specifically contends the state failed to prove he knew that the cocaine was under the house, that he had recently used cocaine, or that the house was frequented by drug users. He suggests that the circumstantial evidence shows that not he but Felicia Stewart was in possession of the cocaine.

The state responds that officers seized pictures of Russell from the house, as well as mail addressed to him there; during the raid, a person matching Russell’s description walked toward the house but turned and ran upon seeing Agent Alkire; and the plastic bag of marijuana found in the living room was pink, matching the baggies found under the house. The state submits that this evidence negates any claim that somebody else put the cocaine under the house.

The standard of appellate review 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921. Further, when the conviction is based on circumstantial evidence, La. R.S. 15:438 states that “assuming every fact to be proved that the evidence tends to prove, in order to convict, [the circumstantial evidence] must exclude every reasonable hypothesis of innocence.” However, R.S. 15:438 does not | .^establish a stricter standard than Jackson v. Virginia; rather, it serves as a helpful evidentiary guide for jurors in evaluating circumstantial evidence. State v. Major, 2003-3522 (La.12/1/04), 888 So.2d 798.

It is unlawful for a person knowingly or intentionally to “produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance * * * classified in Schedule II.” La. R.S. 40:967 A(1). Possession of a controlled dangerous substance may be established by actual physical possession or by constructive possession. State v. Major, supra. Constructive possession depends on dominion and control over the drugs, even in the absence of physical possession. State v. Harris, 94-0970 (La.12/8/94), 647 So.2d 337. Mere presence in an area where drugs are located or mere association with one possessing drugs does not constitute constructive possession, but the courts consider various factors to determine whether a defendant exercised sufficient dominion and control to constitute constructive possession, including (1) his knowledge that drugs were in the area, (2) his relationship with the person, if any, found to be in actual possession, (3) his access to the area where the drugs were found, (4) evidence of recent drug consumption, and (5) his physical proximity to the drugs. State v. Toups, 2001-1875 (La.10/15/02), 833 So.2d 910; State v. Douglas, supra. A person may be deemed to be in joint constructive possession of drugs that are in the physical control of a companion, if he willingly and knowingly shares with that person the right to control them. State v. Toups, supra; State v. Jenkins, 41,281 (La.App. 2 Cir. 1/24/07), 949 So.2d 563, writ denied, 2007-0699 (La.11/2/07), 966 So.2d 600.

This record supports the finding that Russell exercised dominion and control over the cocaine stashed on the pier and beam under the house. Even though he was not there when agents executed the search warrant, his girlfriend Ms. Stewart was, as were pictures of him with Ms. Stewart and mail addressed to him at the address; four days later, agents found him at the house. This evidence easily shows that Russell exercised dominion and control over the house and distinguishes the case from State v. Douglas, supra, and the cases cited therein. Moreover, Agent Al-kire testified that during the raid, a man fitting Russell’s description approached the house but, on seeing the special response team, fled and eluded police. A trier of fact could reasonably find that Russell did this because he knew that drugs were hidden in the house and wished to escape arrest. Finally, the cocaine was cleverly concealed on a pier and beam under the house, a relatively inaccessible cache which was uncovered only by Congo, a sniffer dog. The jury could reasonably reject the implausible theory that some unrelated third party might have stashed the cocaine there. If, as Russell suggests, it was actually his girlfriend who planted the cocaine there, then the jury could find he had joint constructive possession. State v. Jenkins, supra.

This assignment of error lacks merit.

Evidence of Prior Bad Acts

By his second assignment of error, Russell urges that he was prejudiced by the state’s improper introduction of evidence of his prior bad acts. On cross-examination by defense counsel, Agent Ar-doin testified that |7he went to the house because of Russell. Defense counsel asked:

Q. But yet, you arrested Felicia Stewart for possession with intent to distribute.
A. That’s correct.
Q. Why?
A. Because she was present when I made undercover buys from Mr. Cedric Russell.

Defense counsel objected to Agent Ar-doin’s response on grounds that it was nonresponsive and misleading, chiefly in that it was a confidential informant, not Agent Ardoin, who made the undercover buys; counsel did not move for mistrial. Russell now argues that although evidence of the drug sales may have been admissible under La. C.E. art. 404 B, the state failed to meet the other criteria for admissibility under Art. 404 B and provided no notice of its intent to use such evidence as required by State v. Prieur, 277 So.2d 126 (La.1973). He contends that this evidence prejudiced him by telling the jury something the physical evidence did not — that he had recently been in physical possession of cocaine. He concludes that he is entitled to a permissive mistrial under La. C. Cr. P. art. 771.

The state concedes that Agent Ardoin referred to prior bad acts on cross-examination, and that the prosecutor briefly revisited the topic on redirect and in closing argument. The state shows, however, that Russell failed to move for a mistrial, as required by La. C. Cr. P. arts. 770 and 771, and argues that the erroneous admission of prior bad acts is subject to | ^harmless error review. State v. Gatti, 39,833 (La.App. 2 Cir. 10/13/05), 914 So.2d 74, writ denied, 2005-2394 (La.4/17/06), 926 So.2d 511, and citations therein. The state suggests that Agent Ardoin’s remark had no conceivable effect on the verdict.

Mistrial is a drastic remedy which should be declared only upon a clear showing of prejudice by the defendant. State v. Leonard, 2005-1382 (La.6/16/06), 932 So.2d 660; State v. Turner, 44,920 (La.App. 2 Cir. 2/3/10), 32 So.3d 277, writ denied, 2010-0680 (La.3/25/11), 61 So.3d 657. The state cannot be charged with testimony elicited by defense counsel implying that the defendant has previously committed other crimes. State v. Kimble, 375 So.2d 924 (La.1979); State v. Tribbet, 415 So.2d 182 (La.1982). When defense counsel elicits the contested response by asking an open-ended question to a law enforcement officer, there is no error in the trial court’s failure to grant a mandatory mistrial under La. C. Cr. P. art. 770. State v. Jones, 588 So.2d 805 (La.App. 2 Cir.1991). Moreover, without a showing that the officer engaged in a pattern of unresponsiveness or improper intent, there is no ground for a permissive mistrial under La. C. Cr. P. art. 771. Id.

The state did not elicit any damaging testimony from Agent Ardoin; rather, defense counsel did so by asking an open-ended question about why he arrested Ms. Stewart. For this reason, the court was not required to grant a mandatory mistrial. Id. Further, there is no showing that Agent Ardoin was unresponsive to defense counsel or exhibited any improper intent to place Russell’s prior bad acts before the jury; thus the court did not err in |/ailing to grant a permissive mistrial. Id.; State v. McGuffey, 486 So.2d 1101 (La.App. 2 Cir.1986).

This assignment of error lacks merit.

Ineffective Assistance of Counsel

By his third assignment of error, Russell urges that to the extent his attorney “opened the door” to the admission of prior bad acts or failed to preserve his objection thereto, this was ineffective assistance of counsel that prejudiced Russell. He again cites the colloquy in which counsel asked Agent Ardoin why he arrested Felicia Stewart and Ardoin replied because she was present when Russell sold drugs. Russell argues that under the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), counsel’s performance was deficient for failing to object to a valid error, State v. Allen, 2003-2418 (La.6/29/05), 913 So.2d 788, cert. denied, 547 U.S. 1132, 126 S.Ct. 2023, 164 L.Ed.2d 787 (2006); and the failure was prejudicial, as Ardoin’s response was the only evidence directly linking Russell to the cocaine found under the house. He concludes that counsel’s ineffective assistance warrants the grant of a new trial.

The state responds that the claim of ineffective assistance is normally deferred to post conviction relief, but the court may address it on direct appeal when the record is sufficient to support or refute the claim. State v. Ratcliff, 416 So.2d 528 (La.1982). The state submits that in light of the great deference accorded to counsel’s trial strategy, State v. Moore, 575 So.2d 928 (La.App. 2 Cir.1991), and the strength of the state’s evidence, Russell cannot prove either prong of Strickland on the instant record.

Claims of ineffective assistance of counsel are normally addressed not on direct appeal but by post conviction relief, in which the trial court may conduct a full evidentiary hearing. State v. Leger, 2005-0011 (La.7/10/06), 936 So.2d 108; State v. Robinson, 45,820 (La.App. 2 Cir. 1/26/11), 57 So.3d 1107. However, when the record is sufficient, the court may consider the issue on direct appeal in the interest of judicial efficiency. State v. Leger, supra; State v. Robinson, supra. Under the standard set out in Strickland v. Washington, supra, a reviewing court must reverse a conviction if the defendant establishes that (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. State v. Leger, supra. The appellate court does not sit to second-guess strategic and tactical choices made by trial counsel. State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542; State v. Robinson, supra.

On close review, we find the record is sufficient to address the issue of ineffective assistance. Apparently in a strategic effort to shift blame from Russell to Felicia Stewart, trial counsel asked Agent Ardoin why he arrested Ms. Stewart. Unfortunately, the question drew the unexpected response that she had been present when Russell sold drugs on prior occasions. The answer was obviously incriminating to Russell, but we will not second-guess counsel’s attempt to show that it was really Ms. Stewart, not Russell, who possessed the cocaine found under the house. Moreover, counsel promptly asked the court to remove the jury and objected that the agent’s |T answer was nonresponsive and incorrect. This strikes us as a reasonable attempt to control the damage. On this record, we simply cannot say that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms.

This assignment of error lacks merit. On application for post conviction relief, however, Russell may introduce evidence to support this and any other claim of ineffective assistance.

Multiple Offender Adjudication

By his fourth assignment of error, Russell urges the court erred in finding him a fourth felony offender. He shows that for a prior guilty plea to be used as a predicate for a multiple offender bill, the defendant must have been advised of (1) the right against self-incrimination, (2) the right to a jury trial, and (3) the right of confrontation. Boykin v. Alabama, supra; State v. Battle, 552 So.2d 503 (La.App. 2 Cir.1989). He then cites this colloquy from his 1996 guilty plea to simple burglary:

Q. Do you understand by pleading guilty you waive your right to a trial by jury?
A. Yes, sir.
Q. Do you understand by pleading guilty you waive your right to confront them at trial?
A. Yes, sir.
Q. Do you understand by pleading guilty you waive your right against self-incrimination?
A. Yes, sir.

(Emphasis added.)

[12Russell argues that the court taking this guilty plea failed to mention the word “witness,” thus making it impossible to interpret the colloquy as adequately advising him of his right of confrontation. He argues that this complete omission of the crucial concept distinguishes the case from State v. Anderson, 34,491 (La.App. 2 Cir. 4/4/01), 784 So.2d 749, writ denied, 2001-1431 (La.4/12/02), 812 So.2d 666, which approved a Boykin colloquy that referred to the defendant’s “right to confront your witnesses and to cross-examine them at trial.” He concludes that the fourth felony offender adjudication should be vacated.

The state concedes that the 1996 guilty plea was “not an ideal Boykin colloquy.” However, it argues that Russell had been “through the process several times before,” receiving his Boykin rights when he pled guilty to unauthorized use of a movable in 1990 and to possession of cocaine in 1992. The state contends that courts may look to an “expanded record” to determine whether a voluntary waiver occurred. State v. Lawson, 410 So.2d 1101 (La.1982). The state suggests that because of Russell’s two prior guilty pleas, and the absence of any indication that he misunderstood his rights in the 1996 colloquy, the district court was not wrong to find compliance with Boykin.

The Constitution requires that a guilty plea be recorded showing that the defendant was informed of and waived his constitutional right against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. Boykin v. Alabama, supra; State v. Markray, 45,129 (La.App. 2 Cir. 4/21/10), 35 So.3d 453. The trial court cannot rely 11son an assumption that defense counsel adequately informed the defendant of his rights. State v. Williams, 384 So.2d 779 (La.1980). In a felony case, a court shall not accept a plea of guilty without first addressing the defendant personally in open court and informing of, and determining that he understands, inter alia, the right to confront and cross-examine the witnesses against him. La. C. Cr. P. art. 556.1 A(3).

No specific articulation of the defendant’s rights is required or sacramental. State v. Smith, 375 So.2d 1328 (La.1979). However, the core concept of the rights must be conveyed. For example, advising the defendant he has a “right to remain silent” is insufficient to describe the right against self-incrimination at trial, State v. Rohicheaux, 412 So.2d 1313 (La.1982), and advising of a “right to trial” is insufficient to describe the right to a jury trial, State v. Santiago, 416 So.2d 524 (La.1982).

On this record, we are constrained to agree with Russell that at the 1996 guilty plea, the district court omitted the core concept of confronting the witnesses against him. The mere mention of “your right to confront them at trial,” without an antecedent (except perhaps the jury, mentioned in the preceding sentence) is not adequate. If Boykin does not guarantee this simple right, it guarantees virtually nothing.

We are aware that the supreme court has adopted a policy of refusing to treat Boykin rights expansively. See, e.g., State v. Juniors, 2003-2425 (La.6/29/05), p. 60, 915 So.2d 291, 334. In recent cases arising from this court, the supreme court has interpreted ambiguous Boykin colloquies as adequately advising the defendant of his rights. In State v. Mendenhall, 2006-1407 (La.12/8/06), 944 So.2d 560, the court approved advising the defendant, ‘Tour attorney would cross-examine the D.A.’s witnesses.” In State v. Smallwood, 2006-2363 (La.5/18/07), 955 So.2d 1264, the court approved advising the defendant that his “attorney would have the opportunity to cross-examine the state’s witnesses at trial.” In State v. Dodson, 2007-0057 (La.11/2/07), 967 So.2d 487, the court approved advising the defendant that his attorney could “examine the D.A.’s witnesses during the course of trial.” The running theme of these cases is that mention of “the state’s witnesses” or “the D.A.’s witnesses” is adequate to convey the sense of the witnesses against him. Here, however, advising Russell that he could “confront them at trial,” without any antecedent, is inadequate to support the kind of interpretation applied in Mendenhall, Smallwood and Dodson, supra. As in State v. Markray, supra, we find no evidence that Russell was properly advised of his right of confrontation at his 1996 guilty plea.

Finally, the state correctly shows that courts may look to an “expanded record” to determine whether a voluntary waiver occurred. State v. Lawson, supra. Even though Russell’s 1996 guilty plea was his third trip “through the process,” the court minutes show that he had never participated in an adversarial hearing such as a preliminary exam, motion to suppress, or a trial on the merits; there is nothing from which we can infer he had prior exposure to the right of confrontation. Admittedly, the transcript of the 1990 guilty plea shows that Judge Hamilton fully advised Russell of his Boykin rights; the minutes of the 1992 guilty plea (no transcript was | ^offered) recite that the same judge advised him “as per Boykin v. Alabama.” These occurred, however, over four years earlier. In light of the court’s total failure in 1996 to mention “accusers” or “witnesses against him,” the good 1990 Boykin is too attenuated to impute advice about the right of confrontation to the 1996 Boykin. The expanded record simply will not support the use of the 1996 guilty plea as a predicate offense. The district court erred in denying the motion to quash.

This assignment of error has merit. Russell’s adjudication as a fourth felony offender is reversed, his multiple offender sentence vacated, and the case remanded to the district court for further proceedings.

Conclusion

In light of our ruling on the multiple offender adjudication, we pretermit any consideration of Russell’s fifth assignment of error, which challenged his sentence as excessive. We have reviewed the entire record and found nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, the conviction is affirmed, but the multiple offender adjudication is reversed, the sentence vacated, and the case remanded for further proceedings.

CONVICTION AFFIRMED; MULTIPLE OFFENDER ADJUDICATION REVERSED, SENTENCE VACATED, AND CASE REMANDED FOR FURTHER PROCEEDINGS.

GASKINS, J., concurring in part and dissenting in part.

GASKINS, J.,

concurring in part and dissenting in part.

|,I respectfully concur with the majority’s affirmation of the defendant’s conviction but dissent from the reversal of the defendant’s multiple offender adjudication.

The entry of a guilty plea must be a free and voluntary choice. Further, a defendant wishing to plead guilty must be aware of his Boykin constitutional rights. However, the Louisiana Supreme Court has stressed that Boykin does not compel a “magic word formula” during a plea colloquy for that plea to be voluntary and knowing.

Indeed, in State v. Mendenhall, 2006-1407 (La.12/8/06), 944 So.2d 560, the Louisiana Supreme Court stressed that neither Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), nor the Court’s implementation of Boykin in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), sets out a “magic word formula” which may “serve as a technical trap for conscientious trial judges who conduct a thorough inquiry into the validity of the plea....” citing State v. Bowick, 403 So.2d 673, 675 (La.1981).

During the otherwise thorough plea colloquy, the trial judge only mentioned a right to confront “them” but did not specify who he was referring to. This court noted in State v. Anderson, 34,491 (La.App. 2 Cir. 4/4/01), 784 So.2d 749, that, “[i]n common usage, the phrases confront and cross-examine always connote adversarial activities.” Therefore, from the trial judge’s use of the word “confront,” the defendant in the instant case was advised that he was waiving the right to confront, or cross-examine, 12those testifying against him. Though incomplete by itself, this is not a fatal error.

If the plea colloquy between trial judge and defendant was not “perfect” in fully mentioning all three Boykin rights, courts may look to the “expanded record” to determine whether a voluntary waiver occurred. See State v. Dunn, 390 So.2d 525, (La.1980), State v. Lawson, 410 So.2d 1101 (La.1982). In State v. Cusher, 400 So.2d 601 (La.1981), the Louisiana Supreme Court used the entire record to determine that the defendant’s guilty plea was intelligent and voluntary despite the fact that during the plea colloquy, the trial judge failed to mention the right to confront accusers and no express mention of that right was found in the record.

The expanded record shows that the defendant was represented by competent counsel. He indicated he had discussed the guilty plea with his attorney. He also explicitly responded that his plea was free and voluntary. Though the plea colloquy only mentioned a right to confront “them,” Russell did not say he misunderstood, or express any confusion about his rights or who “them” referred to. Russell never attempted to withdraw the plea. Russell had also pled guilty to other offenses twice in recent years and had been fully advised of his Boykin rights both times. Finally, immediately after Russell’s plea, his code-fendant Williams pled guilty to the exact same offense and was given a “perfect” advisal of the Boykin rights. As in State v. Cusher, based on the totality of the expanded record, it was reasonable for the district court to conclude that Russell entered the plea intelligently and with knowledge of the consequences.

| ^.Therefore, I would affirm the conviction and multiple offender sentence.

      . As noted earlier, the original bill of information charged Russell with two counts of distribution of cocaine, arising from controlled sales on July 19 and July 27, 2006, the incidents which provided probable cause for the no-knock search warrant executed on July 31. The state did not amend the bill to drop the two distribution charges until the morning of trial, February 26, 2008. In these circumstances, the state would not have given Prieur notice prior to trial.