author: MARION F. EDWARDS, Chief Judge.

text:
    STATE of Louisiana v. Kernell HOWARD.
    No. 10-KA-541.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for PlaintiffAppel-lee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendani/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   MARION F. EDWARDS, Chief Judge.

| gDefendant/appellant, Kernell Howard (“Howard”), appeals his adjudication as a fourth felony offender and his enhanced sentence of twenty years. For reasons that follow, we affirm.

Howard was arrested for distribution of a substance falsely represented to be a controlled dangerous substance as a result of a sale of two rocklike objects represented as cocaine to an undercover police officer. Howard was charged with the crime, a violation of La. R.S. 40:971.1 as it existed at the time of the offense on May 27, 2009.

Because Howard has a history of mental illness, the trial court ordered mental evaluations of Howard’s competency to stand trial and his mental status at the time of the crime. After two competency hearings, the trial court found Howard to be legally sane at the time of the crime and competent to stand trial. Howard proceeded to a jury trial and was found guilty as charged. He filed a motion for new trial that was denied by the trial court, and he was sentenced to serve five years at hard labor. Howard filed a motion to reconsider the sentence that was denied and a motion for appeal that was granted.

^Subsequently, the State filed a multiple bill of information alleging that Howard was a quadruple offender. In the habitual offender bill of information, the State alleged Howard had several prior felony convictions including: (1) possession of cocaine (La. R.S. 40:967(C)) in 2008 in case number 04-6465 in Jefferson Parish; (2) distribution of cocaine within 1,000 feet of a church (La. R.S. 40:981.3) in 2008 in case number 05-1152 in Jefferson Parish; and (8) four counts of possession of cocaine (La. R.S. 40:967(C)) and three counts of distribution of cocaine within 1,000 feet of a church (La. R.S. 40:981.3) in 2008 in case number 05-85 in Jefferson Parish. The records of all three predicate offenses are before us as supplemental exhibits. It is clear that Howard pled guilty to all of the crimes charged above in the same proceeding on March 6, 2008. Howard denied the allegations in the habitual offender bill, and the trial court conducted a hearing on the issue.

The trial court conducted a hearing and adjudicated Howard as a quadruple offender. The trial court vacated the five-year sentence and imposed an enhanced twenty-year sentence. Howard filed a motion to reconsider the enhanced sentence that was denied.

LAW AND ANALYSIS

On appeal, Howard asserts that the trial court erred in finding that he is a quadruple offender and that his enhanced sentence is excessive.

Howard contends that the trial court erred by adjudicating him a fourth felony offender. Specifically, Howard asserts that his written response to the multiple offender bill of information sets forth with particularity the reasons why two of the convictions obtained on March 6, 2008 and used by the State as [4predicate offenses in the multiple bill, should not be used in the adjudication. Howard argues that the State’s documentation was incomplete because only one Boykin transcript was provided to cover the three guilty pleas obtained on March 6, 2008 and that Howard was not informed that these convictions could be used individually to enhance a subsequent felony conviction. Howard also argues that placing copies of the waiver of rights form in the records of the other guilty pleas did not convey adequate proof that he made a knowing and intelligent waiver of his rights for those cases, thus rendering the State’s proof inadequate. Therefore, Howard argues that his conviction and sentence as a fourth felony offender should be vacated or that, in the alternative, he should be adjudicated as a second felony offender.

The State responds that Howard’s prior guilty pleas were voluntary and intelligent and that the trial court did not err in finding him to be a fourth felony offender. The State asserts that, by providing the waiver of rights form, it met its initial burden under Shelton of proving both the existence of prior guilty pleas and that Howard was represented by counsel when they were taken. The State argues that Howard’s contention that he was unaware that his three guilty pleas could be used individually to enhance a future sentence is without merit and that, as such, Howard has failed to meet his burden of producing affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea under Shelton. The State contends that the trial court correctly determined that Howard was a quadruple offender because the waiver of rights form shows that Howard knowingly and voluntarily waived his three Boykin rights in all three predicate offenses.

|kTo prove a defendant is an habitual offender, the State must initially prove the prior felony convictions and that the defendant is the same person who was convicted of the prior felonies. The latter can be established through the use of expert testimony that the defendant’s fingerprints match those from the prior convictions. When the State relies on a prior conviction that is based on a guilty plea to prove the defendant’s habitual offender status and the defendant denies the habitual offender bill, the State’s burden of proof is governed by State v. Shelton. The State must also prove that the prior convictions fall within the ten-year cleansing period prescribed by La. R.S.

15:529.1(C).

Under Shelton, it is initially the State’s burden to prove: 1) the existence of the prior guilty pleas, and 2) that the defendant was represented by counsel when the pleas were taken. If the State satisfies that burden, the burden shifts to the defendant to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant makes such showing, the burden of proving the constitutionality of the plea shifts to the State. This burden is met if the State produces a “perfect” transcript of the guilty plea, i.e., one which reflects a colloquy in which the judge informed the defendant of, and the defendant waived his right to, trial by jury, his privilege against self-incrimination, and his right of confrontation.

If the State introduces anything less than a “perfect” transcript, such as a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge must weigh the evidence submitted by each party to determine 1 (¡whether the State has met its burden of proving the prior guilty plea was “informed and voluntary, and made with an articulated waiver of the three Boykin rights.”

At the May 13, 2010 habitual offender hearing, the State introduced the original Twenty-Fourth Judicial District Court records from Cases No. 04-6465, No. 05-1152 and No. 05-0085. Howard pled guilty in all three cases on March 6, 2008. The Plea of Guilty & Waiver of Rights Form, which is present only in the record related to Case No. 04-6465, lists all three case numbers and includes a waiver of the three essential Boykin rights, minimum and maximum sentences for each of the charges, Howard’s specific sentence for each of the charges, and the signatures of both Howard and his attorney. Howard also indicated on the form that he had not been forced, coerced, or threatened to enter his guilty pleas and acknowledged that “this will be a felony conviction which could be used against me in the future if I get convicted of another felony to make the possible penalty worse.” Thus, we find the State has met its initial burden of proving the existence of the prior convictions and that defendant was represented by counsel.

We also find the State met its burden of proving identity at the habitual offender hearing. The State produced a card containing fingerprints taken from Howard in court the day of the habitual offender hearing and separate bills of information bearing the fingerprints of Howard in all three of the predicate offenses, which were taken on March 6, 2008 at the time of the guilty pleas. The State also offered the testimony of Deputy Aischa Prudhomme, a latent fingerprint analyst with the Jefferson Parish Sheriffs Office who was accepted by the court as an expert in fingerprinting analysis and identification. Deputy Prudhomme identified State’s Exhibit 1 as a set of fingerprints she took from Howard on May 13, 2010, in open court. Deputy Prudhomme testified that she compared the |7fingerprints taken that day in open court with those taken in the three predicate offenses, and she found they were “made by the same individual, that being Mr. Howard.”

Since the State met its initial burden, the burden then shifted to Howard to establish a defect in the proceedings or an infringement of his constitutional rights.

Defense counsel objected to the three predicate felony convictions on the grounds that there was only one Boykin form for the three guilty pleas taken on March 6, 2008 and that Howard was not adequately advised of the future applicability of La. R.S. 15:529.1 on the individual cases to which he pled. More specifically, defense counsel asserted that, because the Boykin form states that “by pleading guilty, this will be a felony conviction,” Howard was not properly informed that each of the felony convictions could be used to enhance a potential future sentence.

The State asserted that, even though the guilty pleas were taken on the same day, they constitute independent charges under La. R.S. 15:529.1. The State further argued that Howard’s claim that the Boykin form was inadequate because it failed to warn that each conviction could be used for multiple offender purposes was insufficient to establish a defect in the proceedings.

We find the State’s argument convincing. The waiver of rights form shows that Howard was advised of all three of his Boykin rights when he entered the three predicate guilty pleas. Even though each record does not contain a separate Boykin form, the Plea of Guilty & Waiver of Rights Form expressly lists all three case numbers and the specific charges against Howard in each case. It also includes the minimum and maximum sentences for each of the charges, Howard’s specific sentence for each of the charges, and the signatures of Howard, his attorney, and the judge. Additionally, the State introduced commitments and/or minute entries | «showing that Howard was advised of his rights in each case and that he waived them.

Finally, there is no requirement that a defendant be informed that a guilty plea and conviction may be used as the basis for the filing of a future multiple offender bill. The advice with respect to a defendant’s sentencing exposure has never formed a part of the core Boykin requirements for the entry of a presumptively valid guilty plea. We also note that the Louisiana Supreme Court has not required that a defendant be informed that his guilty plea may be used as a basis for the filing of a future multiple offender bill or that this aspect forms a part of the Boykin rights. Thus, the failure of a defendant to be advised of the sentencing exposure in the predicate offenses or that his guilty pleas could be later used to enhance future convictions does not render his predicate pleas invalid.

Thus, we find Howard has failed to present affirmative evidence of any infringement on his rights or procedural irregularity in the taking of his predicate pleas. As such, the burden never shifted to the State to prove the constitutionality of the predicate pleas. This assignment of error is without merit.

Howard also asserts that his twenty-year enhanced sentence is excessive. As a fourth felony offender, Howard faced an habitual offender sentence that ranged from twenty years to life imprisonment. Defendant received the minimum sentence of imprisonment of twenty years. Nevertheless, Howard argues that the trial court erred in failing to deviate from the mandatory minimum sentence. Howard maintains that a downward deviation is warranted because he had been treated for schizophrenia and was receiving medication for this condition. Howard 19further asserts that he was not convicted of a crime of violence and that his criminal history consists mainly of drug offenses. He contends that his crime of distributing “bunk” cocaine to support his habit does not merit a twenty-year sentence. Howard also argues that the trial court failed to articulate the factors considered for sentencing as required by La.C.Cr.P. art. 894.1. As such, Howard contends that the mandatory minimum twenty-year sentence should be considered constitutionally excessive.

The State responds that the trial court did not abuse its broad sentencing discretion. Specifically, the State argues that Howard did not meet his burden under Dorthey of rebutting the presumption of constitutionality of the mandatory minimum sentence. Specifically, the State asserts that Howard’s non-violent criminal history, addiction to drugs, and schizophrenia did not warrant a downward deviation from the mandatory minimum sentence. Additionally, the State contends that the trial court is not required to comply with the sentencing guidelines set forth in La. C.Cr.P. art. 894.1 when sentencing a defendant as an habitual offender. Thus, the State argues that Howard’s sentence should be upheld.

The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. When a trial court determines that the minimum sentence mandated by La. R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment,” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to | Tnthe severity of the crime,” the trial judge must reduce the sentence to one that would not be constitutionally excessive.

However, it is presumed that the mandatory minimum sentence under the Habitual Offender Law is constitutional. In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is “exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case.”

Downward departures from the minimum sentence mandated by La. R.S. 15:529.1 should only occur in rare situations. When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism.

In this case, Howard was adjudicated a fourth felony offender based on his underlying conviction for distribution of an imitation controlled dangerous substance and three predicate convictions including possession of cocaine, and distribution of cocaine within 1,000 feet of a church. As a fourth felony offender, Howard faced an habitual offender sentence that ranged from twenty years to life imprisonment. Defendant received the minimum sentence of twenty years imprisonment.

After sentencing, Howard filed a motion to reconsider sentence, arguing that a downward deviation from the mandatory minimum sentence was warranted under Dorthey. In denying Howard’s motion, the trial judge considered Howard’s Inhistory of involvement in drug distribution and multiple convictions, and it determined that the minimum sentence provided by the legislature was an appropriate sentence under the circumstances.

We note that, in addition to the predicate convictions noted above, the record reveals that Howard was also convicted of simple burglary in 1993 and possession of cocaine in 1993. Moreover, despite Howard’s contention that his mental condition warranted a downward deviation, Drs. Sal-cedo and Riehoux opined that Howard was legally sane at the time of the alleged offense and that he was competent to proceed to trial.

This Court has held that a defendant’s mere allegations that he is a drug addict and a non-violent habitual offender are not sufficient to find the mandatory minimum sentence excessive.

Moreover, Howard’s contention that the severity of his sentence was disproportionate to his crime (i.e., selling “bunk” cocaine) appears to merit little consideration. The Louisiana Supreme Court has held that “[tjraffic in counterfeit drugs involves most of the danger to society as does the traffic in real drugs.”

Finally, Howard’s argument concerning the trial court’s failure to articulate the factors considered for sentencing as required by La.C.Cr.P. art. 894.1 also appears to warrant little merit. Compliance with sentencing guidelines pursuant to La.C.Cr.P. art. 894.1 is not required when the sentence imposed is statutorily prescribed under the Habitual Offender Law.

We find that Howard has failed to rebut the presumption of constitutionality of the trial court’s imposition of the minimum mandatory sentence in the instant 112case. The trial court has not abused its wide discretion in refusing to deviate from the mandatory minimum twenty-year enhanced sentence in this matter.

Therefore, we find this assignment of error is without merit.

ERRORS PATENT

In our standard review for errors patent on the face of the record, we find the trial court imposed an illegally lenient habitual offender sentence. The transcript reveals that Howard was sentenced to a sentence of twenty years without restrictions in contradiction of La. R.S. 15:529.1(G) which provides that “[a]ny sentence imposed under the provisions of this Section shall be without benefit of probation or suspension of sentence.”

However, because a statute’s requirement that a defendant be sentenced without benefit of parole, probation, or suspension of sentence is self-activating, no corrective action is required by this Court.

For the reasons set forth in this opinion, we hereby affirm Howard’s conviction for distribution of a substance falsely represented to be a controlled dangerous substance, his adjudication as a fourth felony offender, and his enhanced sentence.

AFFIRMED

      . Recent legislative updates to La. R.S. 40:971.1 have been made but are inapplicable to this crime.

      . Howard’s motion for appeal was filed after sentencing on the underlying charge and before consideration of the multiple bill of information and was, therefore, premature. However, that procedural defect was cured by the subsequent re-sentencing. State v. Balser, 96-443 (La.App. 5 Cir. 11/14/96), 694 So.2d 351.

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

      . State v. Shelton, 621 So.2d 769 (La.1993).

      . State v. Jones, 09-788 (La.App. 5 Cir. 4/13/10), 35 So.3d 1162, 1167 (citing State v. Nguyen, 04-321, p. 19 (La.App. 5 Cir. 9/28/04), 888 So.2d 900, 912, writ denied, 05-0220 (La.4/29/05), 901 So.2d 1064).

      . Id.

      . 621 So.2d 769, 779-80 (La. 1993).

        .State v. Guillará., 04-899 (La.App. 5 Cir. 4/26/05), 902 So.2d 1061, 1072, writ denied, 05-1381 (La. 1/13/06), 920 So.2d 233.

      . Id.

      . Shelton, 621 So.2d at 780.

        . State v. Kelly, 01-321 (La.App. 5 Cir. 10/17/01), 800 So.2d 978, 986, writ denied, 01-3266 (La. 11/1/02), 828 So.2d 565.

      . Id. at 986 (citing State v. Frickey, 00-294 (La.App. 5 Cir. 9/26/00), 769 So.2d 791, 799).

      . La. R.S. 15:529.1(A)(1)(c)(i).

      . State v. Dorthey, 623 So.2d 1276 (La. 1993).

      . It is noted that there have been recent legislative updates to La.C.Cr.P. art. 894.1 which do not relate to this discussion.

      . State v. Taylor, 06-839 (La.App. 5 Cir. 3/13/07), 956 So.2d 25, 27, writ denied, 06-0859 (La.6/15/07), 958 So.2d 1179.

      . Taylor, 06-839, 956 So.2d at 27-28.

      . Id. at 28.

      . Id. at 28 (citing Johnson, 709 So.2d at 676 (quoting State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, 528, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223)).

      . Id. at 28.

      . La. R.S. 15:529.1(A)(1)(c)(i).

      . Taylor, 956 So.2d at 29.

      . Id.

      . State v. Jenkins, 07-586 (La.App. 5 Cir. 1/22/08), 977 So.2d 142, 148.

      . The commitment indicates that the "sentence is to be served without benefit of probation or suspension of sentence.”

      . La. R.S. 15:301 and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Dwiron BANKS.
    No. 10-KA-671.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2011.

      Mary E. Roper, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and HILLARY J. CRAIN, Pro Tempore.
   MARC E. JOHNSON, Judge.

12Pelendant, Dwiron Banks, appeals his conviction and sentence for possession with intent to distribute marijuana. We affirm.

Defendant was initially charged on January 16, 2008 in a bill of information with one count of possession of 220.97 grams of marijuana in violation of La. R.S. 40:966, and one count of possession of a firearm while in possession of a controlled dangerous substance in violation of La. R.S. 14:95(E). He pled not guilty and filed several pre-trial motions, including a motion for a preliminary examination and a motion to suppress the evidence. A preliminary examination was held on May 21, 2008, and the trial court found probable cause to hold defendant. Thereafter, on June 17, 2008, the State amended count one of the bill of information to charge defendant with possession with intent to distribute marijuana.

The trial court heard defendant’s motion to suppress on September 28, 2009. The record reflects that defense counsel submitted the preliminary examination for the suppress hearing and the trial court took the matter under advisement. The trial court subsequently denied the motion to suppress after finding the police | .^conducted a valid investigatory stop, obtained consent to retrieve a gun from the vehicle, and saw the marijuana in plain view inside the vehicle.

Thereafter, defendant entered a guilty plea to the amended charge of possession with intent to distribute marijuana under La.C.Cr.P. art. 893 and State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to seek review of the trial court’s denial of his motion to suppress. Pursuant to the plea agreement, the trial court sentenced defendant to five years imprisonment. Because defendant pled guilty under Article 893, the trial court suspended defendant’s sentence and placed defendant on active probation for three years. The trial court also imposed a $1,000 fine. Additionally, in accordance with the plea agreement, the State dismissed count two of the bill of information. Defendant timely appealed.

Since defendant did not proceed to trial on the merits, we deduced the facts of this case from the preliminary examination hearing, which also formed the basis for the suppression hearing. At the hearing, the State presented the sole testimony of Deputy Tanner Mangano with the St. John’s Sheriffs Office. Deputy Mangano testified he arrested defendant on December 13, 2007. He stated he was flagged down by a female, who was a resident of a nearby apartment complex. The female advised there were three black males in a green Honda Accord smoking marijuana. Deputy Mangano drove in front of the female’s apartment complex and observed a green Honda Accord with three black males inside. Without using his overhead lights, Deputy Mangano pulled behind the suspects in his unit. As he approached the vehicle, the driver, later identified as defendant, was stepping out of the vehicle so Deputy Mangano asked him to continue his exit. As defendant exited the vehicle, Deputy Mangano saw a brown-handled revolver in the center console and smelled burnt marijuana.

14Peputy Mangano asked the two other occupants to exit the vehicle and then asked defendant for permission to retrieve the gun from the car. Defendant consented. As Deputy Mangano leaned into the vehicle to retrieve the gun, he saw a large ziplock bag of marijuana on the right front passenger floorboard in plain view.

A second officer, Deputy Marlborough, arrived at the scene, and Deputy Mangano instructed him to handcuff the suspects. Deputy Marlborough placed defendant in handcuffs while Deputy Mangano handcuffed one of the other two occupants. The third occupant fled on foot but was later captured by Deputy Mangano. After all three suspects were arrested, a second bag, containing 31 individually packaged bags of marijuana, was discovered on the rear passenger side door of the vehicle. A field test confirmed the bags contained marijuana and collectively weighed 220 grams. Upon further processing of the vehicle, an AK 47 Assault Rifle, which was not registered with the Federal Firearm Registry, was discovered in the trunk of the car.

Defendant’s appeal consists solely of an Anders brief filed by his appointed appellate counsel requesting an error patent review. Specifically, appellate counsel seeks to withdraw as counsel of record on the basis she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal.

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

In State v. Jyles, 96-2669, p. 2 (La.12/12/97), 704 So.2d 241 (per curiam), the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. Rather, the Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may both deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

1 ^Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. In her brief, appellate counsel notes that although defendant waived his right to challenge the sufficiency of evidence to support his conviction by pleading guilty, the State, nevertheless, introduced sufficient evidence to support defendant’s conviction at the preliminary examination hearing and during the guilty plea colloquy. She adds that the trial court fully explained the rights that defendant was waiving by pleading guilty. Counsel acknowledges that defendant entered a guilty plea under Crosby, reserving his right to appeal the trial court’s denial of his motion to suppress; however, she contends that the evidence introduced by the State at the preliminary hearing, which defendant submitted for the court’s review for the suppression motion, reflected an adequate legal basis for the trial court’s ruling. Appellate counsel also points out that defendant was sentenced in accordance with the plea agreement.

We find appellate counsel’s brief adequately reviews the procedural history of the case and the evidence presented at the motion to suppress hearing, and provides a detailed assessment of whether there are any non-frivolous merits, thereby satisfying the requirements of Jyles.

In her motion to withdraw as attorney of record, appellate counsel indicates she notified defendant that she filed an Anders brief and explained to him his right to file a pro se supplemental brief. In a letter sent certified mail, this Court also advised defendant of his right to file a pro se supplemental brief and informed him that he had until September 30, 2010 to do so. Defendant did not file a pro se supplemental brief.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When an Anders brief |7is filed, the appellate court reviews: 1) the bill of information to insure the defendant was properly charged; 2) all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct, and the sentence is legal; 3) all pleadings in the record; and 4) all transcripts to determine if any ruling provides an arguable basis for appeal. State v. Bradford, 95-929 at 4, 676 So.2d at 1110-11.

The bill of information shows defendant was properly charged. Defendant was also present at all crucial stages of the proceedings. He was properly Boykinized and knowingly and intelligently entered a guilty plea. He received a legal sentence, which was part of a plea bargain set forth in the record. As appellate counsel noted, a defendant cannot seek review of a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea. La.C.Cr.P. art. 881.2(A)(2).

Additionally, the record amply supports the trial court’s denial of defendant’s motion to suppress. The Fourth Amendment to the United States Constitution and La. Const, art. I, § 5 prohibit unreasonable searches and seizures. It is well-established that law enforcement officers have the right to stop and interrogate one reasonably suspected of engaging in criminal activity. La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). A person is “seized” within the meaning of the Fourth Amendment only when that person either submits to the police show of authority or is physically contacted by the police. State v. Hill, 01-1372, p. 9 (La.App. 5 Cir. 5/15/02), 821 So.2d 79, 85. “[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 |s(1991). Rather, a seizure occurs when a person’s freedom to walk away has been restrained by a police officer. Police officers do not need probable cause or reasonable suspicion each time they attempt to converse with a citizen. State v. Hill, 01-1372 at 8, 821 So.2d at 85.

The record shows Deputy Mangano was given information by a female who stated three black males were in a green Honda Accord smoking marijuana. He subsequently corroborated the presence of three black males in a green Honda Accord parked on the street, but did not see any of the men smoking. Without using his sirens or lights, Deputy Mangano approached the parked vehicle. As he approached the vehicle defendant was exiting the vehicle and Deputy Mangano saw a revolver in the center console in plain view and smelled burnt marijuana. At this point, Deputy Mangano had reasonable suspicion that a crime had been committed or was being committed. See State v. Tate, 09-619, p. 11 (La.App. 5 Cir. 2/9/10), 33 So.3d 292, 300.

Deputy Mangano then obtained permission from defendant to retrieve the gun at which time he observed a large bag of marijuana on the front passenger floorboard in plain view. Once Deputy Manga-no had consent from defendant to enter the vehicle, he was lawfully in a position to observe the bag of marijuana in plain view and could seize it without a warrant. See State v. Nicholas, 06-903, p. 10 (La.App. 5 Cir. 4/24/07), 958 So.2d 682, 689. Thus, the trial court did not err in denying defendant’s motion to suppress.

| (ffaving found that an independent review of the record supports appellate counsel’s assertion that there is no basis for a non-frivolous appeal, we grant appellate counsel’s motion to withdraw as attorney of record.

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find no errors that require corrective action.

For the foregoing reasons, defendant’s conviction and sentence are affirmed. Appellate counsel’s Motion to Withdraw is hereby granted.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED

      . The amended bill of information also named and charged two additional defendants, Jam-arcus Williams and Zakenerik Williams.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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

      . We note that reasonable suspicion was not required at this point. See State v. Hill, 01-1372, pp. 8-11 (La.App. 5 Cir. 5/15/02), 821 So.2d 79, 85-86, where this Court found the police did not need reasonable suspicion to approach the defendant, who was sitting in his car in a high crime area doing nothing and avoiding eye contact with the police. In Hill, the officer approached the defendant to question him about what he was doing in the area. This Court noted that the defendant complied with the officer’s request to exit his car, the officer did not restrain the defendant, did not have his weapon drawn, and did not have his police lights or siren on. This Court held that asking the defendant in a non-authoritative manner to voluntarily step out of a parked car and answer some questions did not rise to the level of an investigatory stop for which reasonable suspicion is required.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Hasson K. MITCHELL.
    No. 10-KA-934.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and HILLARY J. CRAIN, Pro Tempore.
   JUDE G. GRAVOIS, Judge.

| ^Defendant, Hasson Mitchell, has appealed his conviction for distribution of cocaine in violation of LSA-R.S. 40:967(A), and sentence as a multiple offender. Defendant’s appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record. After thoroughly reviewing the record in this case, we concur with the representations of defendant’s counsel. Accordingly, for the reasons that follow, we affirm defendant’s conviction, affirm his sentence as amended, remand for correction of the commitment, and grant appointed counsel’s motion to withdraw.

FACTS AND PROCEDURAL BACKGROUND

On November 9, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant with distribution of cocaine in violation of LSA-R.S. 40:967(A). Defendant initially pled not guilty. On April 26, 2010, defendant pled guilty as charged, and pursuant to a plea agreement, was sentenced to fifteen years imprisonment at hard labor. On that same date, defendant admitted to the allegations of a multiple bill of information filed against him, the original sentence imposed on defendant was vacated, and defendant received an enhanced sentence of fifteen years imprisonment.

On June 8, 2010, defendant’s pro se motion for appeal was granted.

ANDERS BRIEF

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

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

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

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines that there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion |5and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In the instant case, defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel states that there is no ruling of the trial court to be challenged, explaining that defendant pled guilty as charged and there were no pre-trial rulings. She contends that raising a claim of excessive sentence would be frivolous when defendant was informed of the considered fifteen-year sentence on the multiple bill and his sentence was ordered to run concurrently with other sentences imposed in other cases on the same day.

Appellate counsel has filed a motion to withdraw as attorney of record that states that she has made a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal and no rulings of the trial court which arguably would support the appeal. She contends she has notified defendant of the filing of her motion and advised him of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until December 18, 2010 to file a pro se supplemental brief. Defendant has not filed a brief.

The State responds that appellate counsel shows a complete and thorough recitation of the procedural history of the case and that counsel has cast an advocate’s eye over the record, determining there were no significant non-frivolous ^issues upon which to base an appeal. The State requests that this Court affirm defendant’s conviction and sentence.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information in this case properly charged defendant and presents no non-frivolous issues supporting an appeal. As required, it plainly, concisely, and definitely states the essential facts constituting the offense charged. It also sufficiently identifies defendant and the crime charged. See generally LSA-C.Cr.P. arts. 464-66.

As reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea, and his sentencing. As such, defendant’s presence does not present any issue that would support an appeal.

Further, defendant pled guilty as charged. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

The record does not contain any pretrial motions filed by defendant; thus there were no rulings to preserve for appeal under the holding in State v. Crosby, 338 So.2d 584 (La.1976).

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

The record in the instant case shows that defendant was aware he was pleading guilty to distribution of cocaine. He was advised of his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin. Defendant was advised of these rights by means of the waiver of rights form as well as during the colloquy with the trial judge. Defendant, a 30-year-old high school graduate who stated that he could read, indicated during the colloquy that he understood that he was waiving these rights. The commitment also reflects that defendant was advised of his Boykin rights.

Defendant further indicated that he had not been forced, coerced, or threatened to enter his guilty plea. He was informed that this guilty plea could be used to enhance a penalty for any future felony conviction should he be convicted of another felony in the future.

Defendant was also advised that he faced a possible sentencing range of fifteen to sixty years and that he would be sentenced to fifteen years at hard labor, to run concurrently with his other sentences. Defendant stated that he understood the consequences of pleading guilty and wished to plead guilty. Additionally, defendant, his attorney, and the judge signed guilty plea forms that enumerated defendant’s rights, and explained the sentence defendant would receive under the plea agreement for the underlying charge and the multiple bill.

Defendant’s sentence does not present any issues for appeal because his fifteen-year sentence falls within the sentencing range prescribed by statute. See LSA-R.S. 40:967(A). Further, defendant’s sentence was imposed pursuant to a Rplea agreement. LSA-C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

Based on the foregoing, we find that the proceedings surrounding defendant’s plea of guilty and his sentence do not present any non-frivolous issues to be raised on appeal. Because appellate counsel’s brief adequately demonstrates that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion, we hereby grant appellate counsel’s motion to withdraw as attorney of record.

ERRORS PATENT DISCUSSION

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

The record reflects that defendant was not specifically advised by the trial judge of his right to remain silent prior to stipulating to the allegations in the multiple offender bill of information. Before a defendant stipulates to the charges in a habitual offender bill of information, the trial court must advise the defendant of the specific allegations contained in the multiple bill, his right to be tried as to the truth thereof, and his right to remain silent. LSA-R.S. 15:529.1(D)(1)(a) and (3). The failure of the trial court to comply with the requirements of LSA-R.S. 15:529.1(D)(1)(a) and (3) is subject to a harmless error analysis. State v. Dearmas, 606 So.2d 567, 569 (La.App. 5 Cir. 1992); overruled on other grounds by State v. Davis, 01-123 (La.App. 5 Cir. 7/30/01), 792 So.2d 126.

| flGenerally, the failure of the trial court to advise the defendant of his right to a hearing and his right to remain silent is considered harmless error where the defendant’s multiple offender status is established by competent evidence offered by the State at a hearing rather than by admission of the defendant. State v. Palmer, 93-1027, p. 4 (La.App. 5 Cir. 4/26/94), 636 So.2d 1091, 1093. However, when the defendant stipulates to the multiple offender bill without having been informed of his right to a hearing or his right to remain silent, by either the court or his attorney, there is reversible error. State v. Brown, 95-377, p. 6 (La.App. 5 Cir.1995), 665 So.2d 477, 480.

In this case, the trial court addressed defendant as follows, prior to accepting his stipulation to the multiple offender bill of information:

THE COURT:
Mr. Mitchell, this Waiver of Rights Form that you signed indicates that the State of Louisiana is relieved of its obligation to put on proof that you, in fact, had committed all the crimes that would allow them to charge you as being a second offender in this case. That would also include the fact that you had been given, in those earlier crimes, all your proper Rights that you are, in fact, the same person who was previously convicted and a number of other details. Basically, what you’re doing is you’re waiving them, or in other words, you’re telling the State of Louisiana they don’t have to put on any of that evidence.
Is that correct, sir?
MR. HASSON MITCHELL
Yes, sir.

As can be seen from the above, while the court arguably advised defendant of his right to a hearing, he did not inform him of the specific allegations contained in the multiple offender bill or his right to remain silent. However, we find that this error was harmless in light of the fact that defendant executed a Waiver of Rights — Plea of Guilty as Multiple Offender under LA.R.S. 15:529.1 form, in 110which he acknowledged with his initials and signature that he had reviewed a copy of the bill of information for the multiple bill and understood that he had a right to a hearing as well as the right to remain silent throughout such a hearing. See State v. Wheelwright, 615 So.2d 385 (La.App. 5th Cir.1993), writ denied, 619 So.2d 576 (La.1993), and State v. Carruth, 94-147, 94-148 (La.App. 5th Cir. 9/27/94), 643 So.2d 1319.

Next, we find that the trial court erred in ordering that defendant’s entire habitual offender sentence be served without the benefit of parole. When a defendant is sentenced as a habitual offender, ‘“[t]he penalty increase is computed by reference to the sentencing provisions of the underlying offense. Similarly, the conditions imposed on the sentence are those called for in the reference statute.’ ” State v. Fletcher, 03-60, p. 13 (La.App. 5 Cir. 4/29/03), 845 So.2d 1213, 1222 (quoting State v. Bruins, 407 So.2d 685, 687 (La. 1981)). Under LSA-R.S. 15:529.1(G), defendant’s sentence is to be served without the benefit of probation or suspension of sentence. The Habitual Offender Law does not deprive defendant of parole eligibility. LSA-R.S. 40:967(B)(4)(b) requires that the first two years of defendant’s sentence be served without the benefit of parole, probation, or suspension of sentence. Therefore, the trial court was only authorized to impose the first two years of defendant’s habitual offender sentence without the benefit of parole.

In cases in which the trial court’s sentencing error does not involve the omission of a restrictive term required by statute, but the imposition of limits beyond what the legislature has authorized, an' appellate court should not rely on LSA-R.S. 15:301.1(A) to correct the error as a matter of law, but should correct the sentence pursuant to its authority under LSA-C.Cr.P. art. 882 to correct an illegal sentence “at any time.” See State v. Green, 04-357, pp. 10-11 (La.App. 5 Cir. 11/16/04), 890 So.2d 6,12. Therefore, we amend defendant’s habitual offender sentence to delete the portion thereof requiring that the entire sentence be served without parole and order that only the first two years of defendant’s sentence are to be served without the benefit of parole.

Finally, we note a discrepancy between the minute entry/commitment and the transcript. In the transcript, the trial judge ordered that the sentence under the multiple bill was without benefits, but the minute entry/commitment does not reflect this. When the transcript and the minute entry conflict, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). Accordingly, this matter is remanded for the limited purpose of ordering the district court to correct the minute entry/commitment to conform to the transcript and to reflect the amendment of the defendant’s sentence; further, we direct the Clerk of Court to transmit the corrected minute entry to the officer in charge of the institution to which defendant has been sentenced. See, State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846.

CONCLUSION

For the foregoing reasons, we affirm defendant’s conviction, affirm his sentence as amended, remand to the trial court for the limited purpose of correcting the minute entry as explained above, and grant appointed counsel’s motion to withdraw.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

      . Although the transcript of defendant’s guilty plea also pertains to defendant's other charges in 24th Judicial District Court case numbers 09-3164, 09-2927, 10-359 and 10-0360, only defendant’s conviction in case number 09-5941 is the subject of this appeal.

      .Defendant filed an untimely pro se Motion to Reconsider Sentence, which the trial court denied. While noting that the Motion was untimely filed, the district court correctly found that because defendant had already begun serving his hard labor sentence, it was precluded from amending the sentence under LSA-C.Cr.P. art. 881. The court further noted that LSA-C.Cr.P. art. 881.2(A)(2) provides that a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.

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

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

      . On March 25, 2011, defendant filed a letter with this Court requesting an extension to file a supplemental brief in this Court. On March 29, 2011, defendant's request for an extension to file a supplemental brief was denied as untimely.

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


author: CARAWAY, J. MOORE, J.,

text:
    TEALWOOD PROPERTIES, L.L.C., Plaintiff-Appellant v. The SUCCESSION OF Glen D. GRAVES, Mary Maricelli Graves, Dale Oil Company, Inc., a/k/a Dale Oil Corp., Defendants-Appellees.
    No. 45,975-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 2011.

      Kenneth R. Antee, Jr., for Appellant.
    David R. Taggart, Brad E. Wilkerson, Bradley Murchison Kelly & Shea, LLC, for Appellees.
    Before BROWN, WILLIAMS, CARAWAY, DREW and MOORE, JJ.
   CARAWAY, J.

hAt the time of the vendors’ execution of a 2003 warranty deed for the sale of land, a corporation, solely owned by vendors, owned a mineral servitude encumbering the land. The purchaser filed this action against the vendors for breach of contract and also sued the corporation, seeking from the corporation “the specific performance of transferring the mineral rights” to the plaintiff. Upon the corporation’s exception of prescription, the trial court dismissed the action against it, finding applicable a one-year period of prescription. For the following reasons, we find a cause of action against the corporation for reformation of the deed which, as a contractual matter, has not prescribed. Accordingly, we reverse the trial court’s ruling and remand for further proceedings.

Facts and Procedural History

This suit was filed on June 18, 2008, by Tealwood Properties, L.L.C. (“Tealwood”). The disputed transaction at the center of this controversy is a ‘Warranty Deed” (the “Deed”) for the sale of land dated August 11, 2003. The vendors, husband and wife, were Glen D. Graves, who is now deceased and whose succession is a party defendant, and Mary Maricelli Graves (collectively the “Graves”). The purchaser of the property was Tealwood.

The Deed was a cash sale of 477.99 acres (the “Tract”) near Greenwood, Louisiana, for a stated price of $1.25 million. The Deed provided that the Tract was sold subject to all “utility and other servitudes” of record. The Deed contained the following provision regarding the landowner’s right to the minerals and a limited mineral reservation by the Graves:

Vendor does hereby convey and transfer any and all rights to oil, gas and other minerals lying on or under said property except any production produced by that certain well named F.A. Baker No. 4, having Serial No. 163340, exploration by Novy Oil & Gas Company, Inc., which is hereby reserved by Vendor.

(hereinafter the “Baker Well mineral reservation”).

The Graves’ conveyance of the land subject to the minimal Baker Well mineral reservation gave rise to this dispute over the effect and meaning of the Deed regarding the landowner’s right to the minerals which Tealwood was to acquire. At the time of the Deed, it is undisputed that the Tract was subject to a pre-existing mineral servitude affecting all minerals in the property. The mineral servitude (the “Dale Servitude”) had been conveyed in August 1990 to Dale Oil Corporation (hereinafter “Dale”) by Mildred Elizabeth Meeker, who was the mother of Mr. Graves. Later, in December 1990, Ms. Meeker sold the land to her son and daughter-in-law. Tealwood’s petition alleges that Dale was at all times the wholly-owned corporation of the Graves. Since the Dale Servitude remains a burden on the Tract, Tealwood sued Dale along with the Graves in a petition which it labeled, “Petition for Specific Performance, Breach of Contract, Civil Fraud, Bad Faith, Attorney Fees and Costs.”

Tealwood made the following allegations against the Graves and Dale:

1) The Graves “transferred any oil, gas and other minerals lying on or under said property except any production produced by that certain well named F.A. Baker No. 4.”
2)Dale Oil Company “was and is wholly owned by Glen D. Graves, President, and wife Mary Maricelli Graves, Vice President.”
3) At all times “relevant herein, Mr. Graves acted in both his individual and official capacity as president of Dale.”
4) Dale acquired the mineral rights in August of 1990; Mr. Graves, acting in both his individual and official capacity knew this fact. At no time during the negotiations of the transaction between the Graves and Tealwood did Mr. Graves, in his individual or official capacity, disclose to Tealwood that the mineral rights were held by Dale.
5) The Graves were under a duty to disclose the material fact that Dale owned the mineral rights and “deliberately failed to do so resulting in a physical and a civil fraud representation.”
6) Damages are “owed for liability under breach of contract, breach of warranty, negligence, civil fraud, damages in bad faith, attorney fees and costs, expert witness costs, court costs, as all may appear reasonable in the premises.”
7) The defendants “have failed in their obligation to deliver a thing and to do acts as they were required by their own contracts.” The plaintiffs are entitled to have the court “grant the specific performance, plus damages, plus attorney fees as may appear reasonable in the premises.”

Tealwood prayed for judgment against the Graves and Dale “for the specific performance of transferring the mineral rights” to Tealwood.

There were two third-party transactions involving the Dale Servitude which occurred in 2008 before the filing of this suit. The first, as alleged in Tealwood’s amended petition, was a mineral lease granted by-Dale in April 2008. The second involved a mineral sale of one-half of the minerals to the Tract by Dale to Jones Energy Company, L.L.C. (“JEC”), in May 2008. Although Tealwood named JEC as a defendant in this action and sought to set aside the JEC purchase from Dale, the trial court dismissed the claim against JEC. That judgment is now final. Tealwood asserts that the April 2008 oil and gas lease amounts to an element of the damages caused by the 1^breach of the warranty obligations of the Deed. Tealwood has not sought to set aside the rights of the mineral lessee. Thus, as to Tealwood’s claim “for the specific performance of transferring the mineral rights” from Dale, such a claim may only pertain to the remaining one-half of the Dale Servitude, with that half interest being subject to the April 2008 mineral lease.

On July 10, 2009, Dale filed an exception of prescription which is now the subject of this appeal. Dale argued that because no contractual relationship existed between Tealwood and Dale, only a delictual claim for fraud was alleged and was subject to a one-year prescriptive period. The Graves also filed an exception of prescription which sought the dismissal of “all non-contractual and/or fraud based claims” against them on the basis of the tolling of the one-year prescriptive period. In a supplemental memorandum in support of the prescription exception, the Graves submitted copies of excerpts from Tealwood’s Title Insurance, the deposition testimony of Jim Davis (Graves’ attorney), P. Carter Rogers (Tealwood’s closing agent) and Pete Kourtis (President of Tealwood). Also submitted was an August 11, 2003 “Release of Surface Rights” executed by Dale in favor of Tealwood relinquishing and waiving its right to conduct surface operations on the property. In the document, Dale declared that “it has all rights of minerals reserved as Vendee” under the Meeker/Dale Mineral Deed dated August 22, 1990. Further Dale acknowledged such rights and waived and released in favor of Tealwood:

All rights to use of the surface of the herein described property from any oil, gas or other mineral exploration, removal, development, that no pipeline or right of way shall be granted or placed over or under said property for any other use, that Appearer may have under |sthe said conveyance, and agrees and consents that the said hereinabove described property may be sold and resold hereafter free and clear of such surface rights.

On August 3, 2009, Tealwood filed a motion for a partial summary judgment against the Graves and Dale, “for the specific performance of transferring the mineral rights to Plaintiff.” Tealwood alleged that Dale was the alter-ego of the Graves and that at all times in his dealing with Tealwood, Mr. Graves acted in both his individual and official capacity as president of Dale. Tealwood contended that because Dale is the alter ego of the Graves who “intentionally defrauded” Tealwood, Dale and the Graves “were the same entity in the transaction which transferred the property to Tealwood.” Attached to the motion for partial summary judgment was the affidavit of John James, the individual who negotiated the Graves/Tealwood transaction.

The Graves and Dale opposed the motion for summary judgment, offering the same evidence previously presented in support of their exceptions of prescription along with other evidence concerning the parties’ intentions for the Deed transaction. The Graves and Dale argued in opposition that genuine issues of fact remained regarding Tealwood’s knowledge that Dale owned the minerals and whether Dale was a validly existing and legally separate and distinct entity from the Graves. They also argued that partial summary judgment was not appropriate because of the lack of proof of a commingling of corporate and shareholder funds, the failure to follow statutory formalities, undercapitalization, the lack of separate bank accounts and bookkeeping records, and the failure to hold | firegular shareholder and director meetings. The Graves/ Dale urged the court to look to the totality of the circumstances in deciding whether to pierce the corporate veil.

The trial court simultaneously heard arguments for the exceptions of prescription and motion for partial summary judgment at a hearing on September 21, 2009. The parties submitted the affidavits and deposition testimony without the witnesses’ appearances at the trial of the exceptions. Counsel for Tealwood conceded that delic-tual fraud claims had prescribed. Additionally, the Graves acknowledged that the only claims against them which would survive the prescription exception were the contract claims. The Graves/Dale reiterated that due to the lack of a contract between Dale and Tealwood, no contract claims existed and the remaining claims against Dale should be dismissed as prescribed.

Tealwood argued that Dale’s exception of prescription, which Dale based upon its alleged lack of participation in the Deed contract, should be considered in light of Tealwood’s alter ego argument on its summary judgment motion against Dale and the Graves, collectively. Tealwood’s position therefore for both Dale’s exception and the motion for summary judgment was “that Dale Oil and Glen and Mary Graves is one in the same ... and so the breach of contract by the Graves is also extended to Dale Oil as the alter ego.”

In written reasons for judgment, the trial court sustained Tealwood’s prescription exception against Dale on the ground that there was a lack of a “contractual relationship” between the two entities. In light of this 17determination, the court denied Tealwood’s partial summary judgment against Dale as moot. The court recognized that the contractual claims by Tealwood against the Graves had not prescribed but denied Tealwood’s partial summary judgment against the Graves on the ground that “there are genuine disputed facts in this record.”

Tealwood now appeals only the judgment sustaining Dale’s exception of prescription which dismissed Dale from the action.

Discussion

All that must be considered in the peremptory exception of prescription is whether there is sufficient evidence to show that the alleged time period has run. Montgomery v. Breaux, 297 So.2d 185 (La.1974); Allstate Ins. Co. v. Fred’s, Inc., 44,508 (La.App.2d Cir.3/17/10), 33 So.3d 976, writ denied, 10-0883 (La.6/18/10), 38 So.2d 331; Reed v. Abney, 04-1928 (La.App. 1st Cir.2/10/06), 928 So.2d 585. On the trial of the prescription exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. In the absence of evidence, the objection of prescription must be based upon the facts alleged in the petition, and all allegations thereof are accepted as true. Allstate Ins. Co. v. Fred’s Inc., supra; Louisiana Employers-Managed Ins. Co. v. Litchfield, 01-0123 (La.App. 1st Cir.12/28/01), 805 So.2d 386.

From the allegations of Tealwood’s amended petition, the central facts of Teal-wood’s claims are:

|R(i) The Deed;
(ii) The Dale Servitude;
(iii) The Graves’ sole ownership and control of Dale; and
(iv) The Graves’ intent with their corporation, Dale, to deceive Tealwood regarding the sale of the Tract supposedly unencumbered by any mineral servitude (except the Baker Well mineral reservation).

In the evidentiary submissions for the exceptions for prescription, Tealwood’s motion for summary judgment, and the defendants’ opposition to that motion, a large amount of extrinsic and parol evidence was introduced, contesting the extent of ownership rights in the Tract which were intended to be conveyed in the Deed. Louisiana’s parol evidence rule in Civil Code Article 1848 provides in pertinent part:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.

La. C.C. art. 1848.

Thus, with Article 1848 as the relevant measure, Tealwood’s claim rests on the written act under private signature which purports to convey the Tract unencumbered by the Dale Servitude. This is a cause of action in contract on the written Deed for its breach or possible enforcement. To the contrary, Graves brought forth extrinsic and parol evidence in defense of Tealwood’s contract claim to prove that the written Deed embodied a vice of consent and that the true mutual intent of the parties to the Deed was to convey the Tract subject to the Dale Servitude.

InNotably, within this contest, insofar as it concerned the Graves’ exception of prescription and Tealwood’s motion for summary judgment, two matters were correctly determined. First, the prescriptive period for Tealwood’s claim on the Deed contract was ten years, which had not accrued. Second, there were genuine issues of material fact which, upon a trial on the merits, might allow the parol and other extrinsic evidence to establish a mutual intent for the Deed at variance with its written provision regarding Tealwood’s right to the minerals which was expressly conveyed subject only to the Baker Well mineral reservation.

From our reading of the Deed alone, we agree that the Graves conveyed the Tract subject only to the limited Baker Well mineral reservation. From the Deed alone, the Tract was not to be encumbered by the Dale Servitude or any other mineral servitude, except the Baker Well mineral reservation. Thus, the existence of the Dale Servitude which was not referenced as an existing encumbrance in the Deed represents, at a minimum, a claim for breach of warranty on the Deed. Nevertheless, the Graves and Dale brought forth substantial written documentation and par-ol evidence which go to the merits of whether the Deed accurately reflects the parties’ mutual intent. Yet, this dispute over the parties’ mutual intent and the accuracy of the written Deed was not adjudicated by the trial court in the trial of the exceptions of prescription. Under the above cited jurisprudence, |inthe trial on the exception of prescription is limited and may not adjudicate the merits of the plaintiffs stated cause of action or, more particularly in this case, the defense that the parties’ mutual intent was not accurately reflected on the face of the Deed.

In its ruling, the trial court recognized only one cause of action against Dale, an action of fraud. The court found that Dale was a separate and distinct entity from the Graves. Therefore, Dale could not be a party to the sales contract between the Graves and Tealwood. Any fraudulent conduct in which Dale may have participated to deceive Tealwood about its purchase of the Tract, according to the trial court, would have amounted to a del-ictual claim which prescribed in one year. Dale was completely dismissed from the action.

Additionally, the trial court rejected Tealwood’s “alter ego” claim against Dale, as follows:

Finally, other than a mere accusation, the record in no way supports the claims of Tealwood Properties, L.L.C. that Dale Oil Company, Inc. is the alter ego of Glen Graves or that there is any basis for what has been described in oral argument as “reverse veil piercing.”

This treatment by the trial court of the alter ego claim against Dale, in the context of an exception of prescription, was clearly not based upon the running of a prescriptive time period. If the Graves and Dale may be |, considered under a so-called “alter ego” analysis as one and the same, then the ten-year prescriptive period which the trial court found applicable to the claims against the Graves would equally apply against Dale. Second, the trial court’s holding apparently was not based upon a legal determination of no cause of action. No legal analysis was stated. However, as reviewed below, we believe that this is the important legal question of this case which must be addressed. Does Tealwood have a cause of action for the disregard of Dale’s corporate personality because its sole shareholders obligated themselves under the Deed to deliver to Tealwood the right to explore for the Tract’s minerals which the Graves fraudulently or erroneously retained in Dale?

Finally, the trial court’s above-quoted ruling rested upon its perception of a lack of allegations or evidence in the record to support the “alter ego” claim or the claim that the Graves and Dale be considered as one in the same. Nevertheless, Teal-wood’s allegations are that (1) the Graves are the sole shareholders of Dale; (2) Mr. Graves had knowledge, individually and as president of Dale, that Dale owned the Dale Servitude |12when he executed the Deed; (3) the Graves in executing the Deed exhibited an intent to deliver ownership to the land unencumbered by the Dale Servitude; and (4) the Graves and Dale failed to deliver ownership to the Tract unencumbered by the Dale Servitude. At this stage of the proceedings, where the trial court correctly determined that the issue of the mutual intent of the parties to the Deed could not be adjudicated, the above allegations by Tealwood are presumed as true for purposes of the peremptory issue of prescription. In our opinion, those allegations, suggesting circumstantially that Mr. Graves’ intent in signing the Deed cannot be separated from Dale’s intent, state a cause of action to reform the Deed with Dale’s direct participation in the conveyance, and such cause of action has not prescribed.

Addressing the topic of the “veil-piercing” or the disregard of the corporate entity, the Louisiana Supreme Court summarized our law as follows in Smith v. Cotton’s Fleet Service, Inc., 500 So.2d 759, 762 (La.1987):

The general rule of law is that corporate entity is separate and distinct from the identity of its shareholders. La. Civ.Code art. 435. * * * The purpose of the insulation and limited liability of shareholders is to promote commerce and industrial growth by encouraging them to make capital contributions to corporations without subjecting all of their personal wealth to the risks of business. Glazer v. Commission on Ethics for Public Employees, 431 So.2d 752 (La.1983). [Citations omitted]
The principle is well recognized, however, that the notion of legal entity may not be used to defeat public convenience, justify wrong, protect fraud, or defend crime. [Citation omitted] In each individual case, the just and reasonable limitation, if any, upon the exercise of the privilege of separate capacity is determined by balancing the policies fostered by corporate existence against the policies justifying its limitation under the particular circumstances. | ^[Citations omitted] The same factual scenario may result in recognition of a separate corporate identity for some purposes, and a disallowance of the separate corporate entity privilege for others. Glazer v. Commission on Ethics, 431 So.2d at 758. [Citation omitted] For example, the separate corporate entity privilege may not be invoked by a public official so as to use his wholly owned and controlled corporation to do that which the government code of ethics expressly commands he individually shall not do. Glazer v. Commission on Ethics, 431 So.2d at 758. But if the same corporation’s separate identity is attacked by its creditors for the purpose of imposing individual liability upon its shareholders, the strong social interest in encouraging capital investment would require that the separate identity be respected absent conduct on the part of the shareholders constituting waiver of the privilege of insulation, such as their own disregard of the corporate form, or their use of the corporate form to perpetrate fraud.

The veil-piercing jurisprudence in large part concerns attempts by creditors of the corporations to defeat the limited liability protection afforded the shareholders. This is not the present situation. Nevertheless, as observed by Professor Morris in the Louisiana Law Review, veil-piercing “is a flexible doctrine that can be used in any situation in which the separate personality of the corporation appears to be blocking a just result.” Glenn G. Morris, Piercing the Corporate Veil in Louisiana, 52 La.L.Rev. 271 (1991). One unique group of cases, categorized by Professor Morris as the “circumvention cases,” concerns the following:

Cases in the “circumvention” category of veil-piercing jurisprudence are strikingly different from any of the cases discussed so far; they have nothing whatever to do with the collection of a debt owed by the corporation. Rather, in the circumvention type of case the court is being asked to disregard the separate existence of a corporation in order to prevent the shareholder of the corporation from getting around some restriction on his own freedom of action. The veil is pierced in these cases to stop the shareholder from doing indirectly through a corporation what he could not do directly as an | individual, or viewed in a slightly different way, to impute to a corporation some legal disability or characteristic that, as a formal matter, is actually held by the shareholder rather than by the corporation itself. Thus, the circumvention cases do not involve issues of corporation law, as such. Rather, they raise questions about the proper interpretation of a particular statute or contract, i.e., whether the particular statute or contract in question ought to be interpreted to reach only those actions taken by the parties directly, or instead ought to be seen as reaching indirect actions as well.

Id. at 310-311.

The case of Keller v. Haas, 202 La. 486, 12 So.2d 238 (1943), involved a shareholder’s obligation to his co-owners of a tract of land after he had purchased the land at a tax sale and placed title to the land in his closely-held corporation. The plaintiff/co-owners sued the shareholder and his corporation for the recognition of their undivided three-fourths interest in the land which their co-owner, Haas, had purchased at a tax sale almost thirty years earlier. Years after the tax sale, Haas had deeded the land to his corporation. The plaintiffs’ claims against both defendants were dismissed in the district court on the peremptory exceptions of no cause and no right of action. The supreme court reversed, ruling that the plaintiffs/co-owners might yet be maintained in the co-ownership of the land with Haas, despite his tax sale purchase. Regarding the corporation’s claim of its sole ownership of the land, the court effectively disregarded the corporate entity’s claim as follows:

It is contended that the Haas Investment Company, Inc. is an innocent purchaser of the property on the faith of the public records and that it is not affected by the unregistered equities of the co-owners.
It is well settled that where an individual forms a corporation of which he is the sole and only stockholder or owns such control of the stock that the act of the corporation is his own, then he may not use 11fithe screen of corporate entity to absolve himself from responsibility. [Citations omitted]
Under the allegations in the plaintiffs’ petition, the business carried on by the corporation is nothing more than a continuation of Haas’s business by the merger of his private business into a corporation of which he is the managing head and practically the sole owner. Under such circumstances, Haas is not permitted to cloak himself behind the corporate entity to shield himself from responsibility. The corporation would therefore be bound to the same extent that Haas himself is bound.

Id. at 492, 12 So.2d 238. See also, Heard v. Monroe Sand & Gravel Co., Inc., 9 La.App. 568, 121 So. 642 (La.App. 2d Cir.1928).

On the face of the Deed, the Graves, in their personal capacities, warranted a sale of the Tract unencumbered by any existing mineral servitude. Yet, they now assert that they simultaneously retained full ownership of the right to explore for minerals by virtue of their corporation’s mineral servitude and that this allows circumvention of the obligations of the Deed. If the written Deed is determined after trial to accurately reflect the parties’ mutual intent for the sale, the Graves’ intent may be imputed to their corporation, and Dale may be treated as a party to the transaction. This is a cause of action recognized in our jurisprudence, which prevents the shareholders to cloak themselves behind the corporate entity to shield themselves from the responsibility of the obligations of their sale.

This cause of action as expressed in Keller v. Haas, supra, and described by Professor Morris, supra, does not require any measure of the shareholder’s actual intent, such that bad faith or fraud must be proven. If it is determined that the Graves’ mutual intent with Tealwood was for the 1 ^conveyance of ownership of the Tract unencumbered and with the complete landowner’s right for minerals (except the limited Baker Well mineral reservation), the Graves may have simply been in error, without any actual fraudulent intent, holding a mistaken belief that the Dale Servitude no longer encumbered their Tract. With that understanding, they would have been in good faith in the execution of the Deed but may not now shield themselves and circumvent their obligations of the Deed by asserting their corporate ownership.

Finally, there are two important points of policy. Should Tealwood prevail in its claim against Dale, the policy of limited liability for shareholders is not implicated. This so-called “circumvention case” is not an attack on the shareholder’s shield from liability of the corporation’s debt. Likewise, the policy for our public records doctrine is not affected since Dale’s recorded mineral sale and lease to third parties after the time of the Deed are protected from the later reformation of the Deed. Yet, Dale still owns one-half of the mineral interest in the Tract. As between the parties, Tealwood, the Graves and Dale, the Deed may now be reformed if the substantial factual dispute over the parties’ mutual intent for the mineral interest in the Tract is ultimately adjudicated as alleged by Tealwood.

Conclusion

In summary, Tealwood has made factual allegations sufficient to state a cause of action against Dale “for the specific performance of transferring the mineral rights” of the Tract to Tealwood by a reformation of the Deed. Dale’s remaining ownership affecting the minerals amounts to one-half of |17the minerals, which is the only portion which may be included in the sale to Tealwood by virtue of such reformation of the Deed. The cause of action now recognized has a prescriptive period of ten years. Accordingly, the trial court’s grant of the peremptory exception of prescription dismissing the claims against Dale is reversed. Costs of appeal are assessed to Dale.

REVERSED AND REMANDED.

MOORE, J., dissents and assigns reasons.

WILLIAMS, J., dissents for the reasons assigned by MOORE, J.

MOORE, J.,

dissents.

hThe majority opinion raises a serious issue regarding how far an appellate court may interject itself into the adversarial process, presumably under the power vested in it through La. C.C.P. art. 2164 to “render any judgment which is just, legal and proper upon the record on appeal.” While Comment (a) to Art. 2164, states, in pertinent part, that “the purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below,” this power is limited by the pleadings and evidence in the record. The Louisiana Supreme Court emphasized that the “freedom to do justice” mentioned in the official comment is strictly limited by the statutory phrase, “upon the record on appeal.” Morgavi v. Mumme, 270 So.2d 540 (La.1972). In Morgavi, the court reversed the judgment of the court of appeal as lacking the authority under Art. 2164 to order return of a deposit on property subject to a purchase agreement, where no pleading alleged that the vendor failed to tender title, and the record on appeal was inadequate to establish that vendor had failed to tender title. Regarding Art. 2164, the court stated that the phrase “upon the record on appeal” in the statute “has major significance.” Id., at 542; see also, Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971): “It means that the court can render any judgment supported by the pleadings and the evidence.” Id.

lain this instance, the majority’s reversal of the trial court’s judgment which granted Dale Oil Company’s (“Dale”) exception of prescription of all claims against Dale is based upon a creative reconstruction of Tealwood’s pleadings to supply an alternative, extant cause of action against Dale for reformation of the warranty deed issued by the Graves. In other words, using the plaintiffs pleadings that were tailored to its action for specific performance against Graves and his alleged alter ego, Dale, the majority has now supplied an alternative cause of action for reformation of the deed, also subject to the 10-year prescription, and based on the same pleadings and the same relief prayed for in Tealwood’s action for specific performance. The unstated reason for this result-oriented exercise perhaps lies in the panel’s knowledge that after Dale’s dismissal, Graves obtained a summary judgment dismissing Tealwood’s claim for specific performance and that judgment is now an unappealable final judgment.

Although technically an action for specific performance is distinct from an action for reformation, the former being properly based on the contract to sell, while the latter on the contract of sale (the deed of conveyance), it is a distinction without a difference in this case. To prevail under either theory Tealwood must prove that Dale, the owner of the mineral servitude, was in fact or by legal fiction the seller in the purchase agreement and/or the grant- or in the deed. Otherwise, inasmuch as Dale is never mentioned in either instrument and was not a party to the agreement, this is simply an oversale by Graves. See generally, Rodgers v. CNG Producing Co., 528 So.2d 786 (La.App. 3 Cir.1988) (in a case of oversale, where the mineral purchaser knows the seller does not own all the minerals under the tract of land in question, the warranty is appropriately limited).

Tealwood made a general allegation of fraud in order to bring Dale into the contract under the alter-ego theory. Absent a showing of a contractual or quasi-contractual relationship, its claim for damages for fraud is delictual and subject to the one-year prescriptive period. Tealwood alleged that Graves did not disclose that Dale owned the minerals, the fraud or nondisclosure being supplied by the language in the warranty deed in which the grantor conveyed all the mineral rights or minerals in and under the surface except the Baker No. 4 well or in the definition of “property” in the purchase agreement which is essentially the same. These allegations of fraud were tested in Tealwood’s motion for partial summary judgment along with the exceptions of prescription at issue in this appeal. Against the defendant’s evidence that Tealwood knew Dale owned the mineral rights to the property, Tealwood supplied a supporting affidavit from John James that stated merely that he was familiar with the facts associated with the transaction and all the allegations of fact are true “to the best of his information, knowledge and belief.” There are no factual details alleged, much less anything approaching the specificity required by La. C.C.P. art. 856 regarding the circumstances of the fraud, and absolutely no supporting affidavits to attest to their truth. The trial court correctly found no contractual relationship between Dale and Tealwood, no evidence of fraud, only the mere conclusory accusation, and that the alter-ego/reverse veil | ¿piercing theory was unsupported by the record in any way.

The record establishes that the August 11, 2003, closing documents included a release of surface rights in favor of Tealwood executed by Dale and expressly state that Dale owned the mineral servitude on the property by virtue of the deed from Graves’s mother in 1990. Dale’s ownership of the servitude was recorded in the public records and was easily discoverable by Tealwood. The record shows, and the trial court found, that all the parties involved in the sale were sophisticated business people or lawyers who had access to the public records and the Department of Conservation to ascertain the status of the mineral servitude or any mineral leases, i.e., whether all or part of the servitude had prescribed or whether any leases were being held by production. Implicitly, the court found willful ignorance on the part of Tealwood regarding what it was truly acquiring with the purchase. Notably, Teal-wood waited five years after the sale to bring the lawsuit, which coincides with the emergence of the Haynesville Shale exploration and development.

Accordingly, because Tealwood established no specificity in its pleadings and offered no evidence to support the claim of fraud, the trial court correctly determined that there was no connection between Dale and Tealwood in fact or by operation of a legal fiction such as reverse piercing of the veil under the alter-ego theory. Any claim against Dale therefore must be delictual in nature and had prescribed.

The majority has gone to great lengths to appear that it is not raising a new issue in this appeal re-interpreting the pleadings. However, were it not | .¡concerned about supplying an alternative theory of recovery, the rehearing panel would not have ordered the parties to brief the very issue of “whether the issue of alter-ego/veil piercing as raised by Tealwood allows for a cause of action for reformation of the contract to effectuate the alleged mutual intent of Tealwood and Graves/Dale.”

My view is that the trial court was in the best position to make the determination of whether fraud was involved in this transaction. Having found no evidence to support the eonclusory allegations of fraud under the alter-ego theory or any other reason to establish contractual privity between Teal-wood and Dale at the trial on the exceptions, the court concluded that any claims of Tealwood against Dale were delictual in nature, subject to the one-year prescriptive period for tort actions, and, therefore, had prescribed. The record reasonably supports these conclusions. Accordingly, I would affirm the judgment of the trial court.

      . Articles 6 and 8 of the Louisiana Mineral Code (La. R.S. 31:6 and 8) address the landowner’s exclusive right to explore and develop his property for the production of oil, gas, and other minerals occurring naturally in liquid or gaseous form.

      . La. C.C. art. 2500. The warranty clauses in a deed or act of sale of real estate, warrant the buyer against any outstanding encumbrances on the property conveyed which are not declared to have existed at the time of the sale. Elder v. Flynt, 7 Pelt. 250, 1923 WL 2882 (La.App.Orleans 1923). The principle is sound that a seller should not be allowed to obligate himself to deliver and to warrant title and peaceable possession to a buyer of a thing and then by his own act or claim to derogate from, or to assert rights to the thing contrary to, his obligations. Dillon v. Morgan, 362 So.2d 1130 (La.App. 2d Cir.1978).

      .This focus by the trial court and the parties on a delictual claim overlooks the Civil Code’s discussion of fraud as a vice of consent in the formation of the contract. La. C.C. arts. 1948 and 1953. "Fraud can also be pled as a basis for a contractual action." Griffin v. BSFI Western E & P, Inc., 00-2122 (La.App. 1st Cir.2/15/02), 812 So.2d 726, 734. Additionally, Article 1997 of the Civil Code gives a broader scope of damages for breach of a contract when the obligor intentionally and maliciously fails to perform his obligation. La. C.C. art. 1997. Thus, a shareholder who warrants the sale of a thing while intentionally attempting to retain ownership of the thing in his closely-held corporation, arguably falls within the purview of these matters of fraud addressed in the Civil Code.

      . Reformation of an instrument is an equitable remedy which lies only to correct mistakes or errors in written instruments when such instruments, as written, do not express the true contract of the parties. It is a personal action, even when applied to real estate. Moore v. Wilson, 34,135 (La.App.2d Cir. 11/3/00), 772 So.2d 373. A personal action is subject to a liberative prescriptive period of ten years pursuant to La. C.C. art. 3499. Sonnier v. Conner, 43,811 (La.App.2d Cir. 12/3/08), 998 So.2d 344, writ denied, 09-0309 (La.4/3/09), 6 So.3d 773; Moore v. Wilson, supra.

      . An issue of the applicable prescriptive time period raised by defendant’s exception of prescription essentially asks the court to identify the cause or causes of action alleged by plaintiff. Our question now posed is readily apparent from Tealwood’s fact pleading, regardless of any theory of the case expressed, and the trial court and appellate court must determine the cause or causes of action. "As long as the facts constituting a claim are alleged, the party may be granted any relief to which he is entitled under the pleadings and the evidence; the 'theory of the case' doctrine, under which a party must select a theory of his case or defense and adhere to it throughout the litigation, has been abolished.” First South Production Credit Ass'n v. Georgia-Pacific, 585 So.2d 545 (La.1991).

      . The Graves and Dale's argument to the trial court that Tealwood must prove commingling of corporate and shareholder funds, failure to follow statutory formalities, undercapitalization, etc., represents veil-piercing efforts to eliminate the limited liability of shareholders in a setting altogether different from the present dispute.

      . The only possible applicable reference in the pleadings was an allegation that the vendor declared the deposit forfeited in accordance with the terms of contract; the evidence in the case was related solely to merchantability of title and was silent as to whether or not tender was made.

      . Indeed, prior to rehearing, a member of the panel instructed the parties to argue the issue of whether "the pleadings alleged allowed for a cause of action for reformation of the deed.”