author: HANS J. LILJEBERG, Judge.

text:
    David L. NEEB & 1011 Group Inc. v. Paul GRAFFAGNINO.
    No. 13-CA-687.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.

      Connie S. Montgomery, Attorney at Law, Kenner, Louisiana, for Interve-nor/Appellant.
    Anne Lacour Neeb, Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
    Panel composed of Judges MARC E. JOHNSON, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

12Intervenor/Appellant, 1011 Group, Inc., appeals the district court’s judgment annulling its April 18, 2012 Judgment of Default in favor of Defendant, Paul Graffag-nino, and against Plaintiff/Appellee, David L. Neeb, and finding 1011 Group, Inc.’s purchase of property from Paul Graffagni-no to be subject to a valid lien and privilege in favor of David L. Neeb. For the following reasons, we affirm.

Factual & Procedural History

On April 1, 2010, Paul Graffagnino retained and entered into a Fee Agreement and Authority to Represent (Contingency Fee) with David L. Neeb, Esq. for services in procuring titles to two tax sale properties. This agreement was recorded on September 22, 2010, in the Jefferson Parish mortgage and conveyance records at MOB 4459-987, COB 3268-933. The contract was executed pursuant to La. R.S. 9:5001 and La. R.S. 37:218 that grant an attorney a first lien and privilege on any property recovered by judgment. Mr. Neeb successfully represented Mr. Graf-fagnino in the matters of Sun Realty, LLC v. Schweggmann’s Westside, Inc. in the 24th Judicial District Court, and Graffagnino v. Mancuso, also in the 24th Judicial District Court, wherein the court granted Mr. Graffagnino full ownership |sof the property located at 308-310 Helios Avenue in Metairie, Louisiana, that is the subject of this litigation.

Mr. Graffagnino did not pay Mr. Neeb’s attorney’s fees in conformity with the fee agreement; therefore, on August 3, 2011, Mr. Neeb filed a Suit to Enforce Lien and Privilege in the 24th Judicial District Court. On September 14, 2011, Mr. Graf-fagnino filed an Answer and Reconven-tional Demand, wherein he disputed signing the fee agreement and sought damages for loss of profit on the sale of the Helios property and for emotional distress. The reconventional demand was not served upon Mr. Neeb until March 26, 2012. On April 12, 2012,- Mr. Graffagnino filed a Motion for Preliminary Default. On April 17, 2012, Mr. Neeb fax-filed an Answer to Reconventional Demand and filed a hard copy with the Clerk of Court on April 19, 2012. On April 18, 2012, Mr. Graffagnino obtained a Judgment of Default against Mr. Neeb. On April 19, 2012, Mr. Graffagnino additionally obtained an Order for Cancellation of the Fee Agreement thereby cancelling Mr. Neeb’s lien and privilege on the Helios property.

Thereafter, Mr. Graffagnino sold the Helios property to 1011 Group, Inc. via quitclaim deed for valid consideration on April 26, 2012. On June 28, 2012, Mr. Neeb sought to annul the default judgment against him. Further, on July 26, 2012, 1011 Group, Inc. filed to intervene, contending that no open liens encumbered the Helios property at the time of purchase.

Trial was held on March 26, 2013, after which the district court issued a judgment declaring its April 18, 2012 default judgment against Mr. Neeb null; that Mr. Neeb possesses a valid lien and privilege on the Helios property; and that 1011 Group, Inc.’s purchase of the Helios property is subject to Mr. Neeb’s lien and ^privilege. It is from this judgment that Intervenor/Appellant, 1011 Group, Inc., appeals.

Law & Discussion

Assignment of Error No. 1

In its first assignment of error, 1011 Group, Inc. argues that the district court erroneously declared null the April 18, 2012 Judgment of Default. First, appellant challenges the district court’s finding that Mr. Neeb’s fax-filed and subsequently-filed hard copy of his Answer to Recon-ventional Demand with the clerk of court was properly and timely filed to render the April 18, 2012 Judgment of Default null.

La. R.S. 13:850 provides that any paper in a civil action may be filed with the court by facsimile transmission. A filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. Id. The facsimile when filed has the same force and effect as the original. Id. Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the original signed document, filing and transmission fee. Id. If the party fails to comply with these requirements, the facsimile filing shall have no force or effect. Id.

The record reflects that Mr. Neeb fax-filed an Answer to Reconventional Demand on April 17, 2012, and subsequently filed a hard copy of the answer on April 19, 2012. Therefore, Mr. Neeb filed the pleading within two days of the fax filing, well within the period prescribed by La. R.S. 13:850. Additionally, a ^receipt of transmission of the filing sent by the clerk of court, dated April 17, 2012, was entered into evidence. Accordingly, the district court properly found that Mr. Neeb’s fax filing conformed to the requirements of La. R.S. 13:850. Therefore, Mr. Neeb properly and timely answered Mr. Graf-fagnino’s reconventional demand on April 17, 2012, prior to confirmation of the default judgment entered on April 18, 2012. See La. C.C.P. art. 1002, providing that a defendant may file his answer at any time prior to confirmation of a default judgment against him.

Second, 1011 Group, Inc. argues that no “ill practice” was perpetrated by Mr. Graf-fagnino in either obtaining the Judgment of Default on April 18, 2012, or in obtaining the Order for Cancellation of the Fee Agreement; therefore, Mr. Neeb’s lien and privilege on the Helios property was properly cancelled.

La. C.C.P. art. 2004 provides that “a final judgment obtained by fraud or ill practices may be annulled.” In Russell v. Illinois Central Gulf Railroad, 96-2649 (La.1/10/97), 686 So.2d 817, 819, citing Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983), the Louisiana Supreme Court further expounded that Article 2004 “is not limited to cases of actual fraud or wrongdoing, but is sufficiently broad enough to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable.”

Further, La. C.C.P. art. 1702, relative to confirmation of default judgments, provides in part:

When a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of [ firecord, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default.

According to the 2001 comments, Article 1702 was amended to conform the default procedure to the rationale of Russell, supra, wherein the supreme court held that confirmation of a default judgment without notice against a party that had filed pleadings constituting an appearance of record was an ill practice. Crump v. Bank One Corp., 35,990 (La.App. 2 Cir. 5/8/02), 817 So.2d 1187, 1192.

The record reflects that Mr. Neeb properly filed an answer to Mr. Graffagni-no’s reconventional demand prior to the confirmation of default. Moreover, Mr. Neeb’s participation in the litigation was evidenced by the initial filing of the suit and Mr. Graffagnino’s answer. Further, at trial, Mr. Graffagnino testified that he did not send notice to Mr. Neeb of the date of the entry of the judgment of default either by certified mail or other means before obtaining the confirmation of default.

Under these circumstances, we find Mr. Graffagnino’s actions in obtaining the Judgment of Default and Order for Cancellation of the Fee Agreement against Mr. Neeb in this case constitute ill practices under La. C.C.P. art. 2004. Accordingly, the district court properly annulled both the default judgment and order of cancellation of the lien and privilege obtained by Mr. Graffagnino against Mr. Neeb.

Assignment of Error No. 2

In its second assignment of error, 1011 Group, Inc. maintains that it was a good faith purchaser and is afforded protection under the public records doctrine relative to Mr. Neeb’s lien and privilege on the Helios property.

|7The public records doctrine and its basic principles of recordation are set forth in La. C.C. art. 3338, et seq., which protect third persons from the effect of unrecorded instruments affecting immovable property. La. C.C. art. 3338 provides in pertinent part:

The rights and obligations established or created by the following written instruments are without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant to the provisions of this Title:
(1) An instrument that transfers an immovable or establishes a real right in or over an immovable.

Therefore, under the public records doctrine, a third party purchaser is entitled to rely on the absence from the public records of any unrecorded interest in the property and may rely on the ownership status of real property as reflected on the face of the public record. Schudmak v. Prince Phillip Partnership, 573 So.2d 547, 551 (La.App. 5th Cir.1991). Mr. Neeb’s attorney’s lien and privilege on the Helios property clearly is an instrument that established a real right in or over an immovable that generally must be recorded to have effect against third party purchasers. However, an exception to the public records doctrine exists where a mortgage is cancelled from the public records through fraud, error or mistake. The cancellation of a mortgage through fraud, error or mistake, without the consent or knowledge of the holder, does not deprive the holder of his security, even as against third parties dealing with the property in good faith in reliance on the public records. Schudmak, supra at 551; Hiers v. Dufreche, 12-1132, 2013 WL 2395055, at *4 (La.App. 1 Cir. 5/31/13); McL. Development Company, Inc. v. Pyburn, 268 So.2d 296, 298 (La.App. 2nd Cir.1972); Davis-Wood Lumber Company v. DeBrueys, 200 So.2d 916, 916 (La.App. 1st Cir.1967); National Acceptance Company of America v. Wallace, 194 So.2d 194, 201 (La.App. 2nd Cir.1967), writs denied, 250 La. 467 and 470, 196 So.2d 533 and 534 (La.1967).

18Cases involving fraudulent or erroneous cancellations, in which the exception to the public records doctrine has been applied, involve mortgage holders who did not know or consent to the cancellation and who had no way of knowing of the wrongful cancellation of the mortgage and no means of protecting their security interests in the property. In many of these cases, the mortgage holder becomes aware of the cancellation only after a sale of the property to a third party. In such cases, mortgage holders are limited in the methods available to correct the wrongful cancellations and to protect their security interests. Therefore, the exception to the public records doctrine is necessary in the interest of justice. Schudmak, supra at 551, citing Central Bank v. Frost, 552 So.2d 508, 512 (La.App. 2nd Cir.1989), writ denied, 556 So.2d 59 (La.1990), cert. denied, 498 U.S. 827, 111 S.Ct. 83, 112 L.Ed.2d 55 (1990). See also Hiers, supra at *4; Ralston Purina Company v. Cone, 344 So.2d 95 (La.App. 2nd Cir.1977).

Similarly, in this case, Mr. Neeb did not become aware of the default judgment, order for cancellation of the fee agreement, or subsequent sale of the Helios property until after the sale, at which time he sought to annul the default judgment and order for cancellation. This fact is corroborated by Mr. Graffagnino’s testimony at trial that he did not send notice to Mr. Neeb of the date of the entry of the judgment of default either by certified mail or other means before obtaining the confirmation of default. Therefore, because Mr. Neeb did not know of or consent to the cancellation, had no way of knowing of the erroneous cancellation by the district court of the lien and privilege, and had no means of protecting his security interests in the property prior to the confection of its sale, the application of the exception to the public records doctrine in this case is necessary in the interest of justice. Central Bank, supra at 512; Hiers, supra at *6.

| ¡Accordingly, based upon this Court’s finding that the district court properly nullified the Judgment of Default and Order for Cancellation of the Fee Agreement due to ill practices without the knowledge of Mr. Neeb, we additionally find that the district court properly ruled that Mr. Neeb’s lien and privilege on the Helios property are valid, and that 1011 Group, Inc.’s purchase of said property is subject to Mr. Neeb’s lien and privilege.

Decree

Considering the foregoing, we affirm the March 26, 2013 judgment of the district court.

AFFIRMED.

      . The cancellation was recorded in the Jefferson Parish mortgage and conveyance records at COB 3294-999 on April 19, 2012.

      . The sale was recorded in the Jefferson Parish mortgage and conveyance records at COB 3295-374 on April 26, 2012.

      . La. R.S. 13:850 was subsequently amended by Acts 2012, No. 226, § 1, extending the period from five days to seven days in which to file the original document.

      . Appellant argues that the original pleading faxed to the clerk of court on April 17, 2012, was not the original document filed at the clerk of court on April 19, 2012. Both the faxed copy and hard copy of Mr. Neeb’s pleading were entered into evidence at trial. The hard copy filed on April 19, 2012, is a duplicate of the fax filing with the exception of the title of the pleading. Mr. Neeb testified that at the direction of the clerk of court, he added handwritten language to the title of the pleading to conform to the original faxed filing. With the addition of the titled language, the documents are identical.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jerry SIMMONS.
    No. 13-KA-258.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.

      Joel T. Chaisson, II, District Attorney, Louis G. Authement, Assistant District Attorney, Hahnville, Louisiana, for Appellee, The State of Louisiana.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Appellant, Jerry Simmons.

      Jerry Simmons, Angola, Louisiana, Appellant in Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

|2On appeal, defendant challenges his convictions and sentences for attempted first degree murder of a peace officer, resisting arrest by force, and disarming a peace officer. For the following reasons, we affirm.

Procedural History

On October 13, 2010, the St. Charles Parish District Attorney filed a bill of information charging defendant, Jerry Simmons, with resisting an officer by force or violence, in violation of La. R.S. 14:108.2 (Count 1); attempted first degree murder of a peace officer, Thomas Plaisance, in violation of La. R.S. 14:27 and 14:30 (Count 2); and disarming of a peace officer, in violation of La. R.S. 14:34.6.

On July 6, 2011, the court denied defendant’s third verbal request to proceed pro se and instructed defendant to file a written motion within 15 days, which he did. After a Faretta hearing on August 10, 2011, the court granted defendant’s motion to represent himself. On September 7 and 8, 2011, the matter was tried | ¡¡before a 12-person jury. On September 8, 2011, the jury found defendant guilty as charged on all counts.

On October 12, 2011, the trial judge sentenced defendant on Count 1, resisting a police officer with force or violence, to three years imprisonment in the Department of Corrections; on Count 2, attempted first degree murder of a peace officer, to 22 years imprisonment, in the Department of Corrections; and on Count 3, disarming of a police officer, to five years imprisonment in the Department of Corrections, to run concurrently. Defendant moved for appeal, which was granted.

On January 18, 2012, the trial court ordered a pre-sentence investigation. On March 28, 2012, the State filed a multiple offender bill of information, and defendant denied the allegations of the multiple offender bill. After several hearings, the trial judge found that the State had proven defendant to be a fourth felony offender. On May 29, 2012, the trial court vacated defendant’s original sentences and imposed concurrent, enhanced sentences, in the Department of Corrections, of 25 years imprisonment on Count 1, 75 years imprisonment on Count 2, and 25 years imprisonment on Count 3, without' benefit of probation, parole or suspension of sentence. Defendant filed a timely motion for appeal.

Facts

At trial, Deputy Thomas Plaisance of the St. Charles Parish Sheriffs Office (“SCPSO”) testified that, on August 23, 2010, at about 10:40 p.m., he stopped a driver on River Road in New Sarpy for speeding. After the driver pulled his truck into the parking lot of the Friendly Quick Stop at the corner of Clement and River Road, Officer Plaisance observed a large pit bull terrier, untethered, in the bed of the truck. As Deputy Plaisance exited his police unit, the dog barked and lunged at him. Deputy Plaisance instructed the driver to restrain the dog so the driver put the |4dog in the cab of the truck. Unfortunately, Deputy Plaisance was unaware that the truck’s passenger window was open.

As Deputy Plaisance observed the driver, he suspected that the driver had been drinking alcohol. When asked, the driver admitted that he had consumed two to three beers that night but refused to submit to a field sobriety test.

When Deputy Plaisance instructed the driver to place his hands behind his back for arrest, he initially hesitated then turned as if to run away. Deputy Plai-sance drew and activated his Taser then again ordered the driver to place his hands behind his back and instructed him to lie on the ground. Eventually, the driver, identified as Jerry Simmons, defendant-herein, complied.

As defendant lay on the ground, Deputy Plaisance succeeded in getting the handcuff on defendant’s right wrist but, as Deputy Plaisance attempted to handcuff defendant’s left wrist, defendant rolled onto his back and struck Deputy Plaisance with his fist. As defendant punched Deputy Plai-sance, the pit bull jumped out of the truck and bit Deputy Plaisance on the head and on the side. When defendant saw his dog biting Deputy Plaisance, defendant encouraged the dog, saying “Kill him! Get him! Bite him!” Deputy Plaisance, who was kneeling, drew his gun and fired at the dog, which enraged defendant.

At this point, Deputy Plaisance had his attention on the dog, which he felt was the greater threat. When Deputy Plaisance attempted to holster his sidearm, he could not because he had forgotten to “decock it.” Defendant, who had moved behind Deputy Plaisance, immediately attempted to remove the weapon from the holster. Deputy Plaisance, who was still kneeling, realized that he would lose control of his sidearm and released the magazine from the weapon, which left only one round of ammunition in the gun. Defendant did gain control of Deputy Plaisance’s sidearm but dropped it during the struggle.

15As the two men struggled, defendant knocked Deputy Plaisance to the ground, straddled his torso, and struck him with his fists in the face and jaw. Defendant also repeatedly lifted Deputy Plaisance’s head and slammed it into the ground, which caused lacerations on his scalp. Additionally, defendant bit Deputy Plai-sance’s first finger, causing a deep laceration.

During this incident, James Wilcox, his wife, three children, and his friend, Travis Credeur, were standing outside their houses across the street from the Friendly Quick Stop. James Wilcox testified that, when Deputy Plaisance and defendant began speaking loudly, the dog jumped out of the truck and attacked Deputy Plaisance. Mr. Wilcox testified that, after defendant started beating Deputy Plaisance’s head into the ground, he and his friend, Pete Massengale, approached to help the officer. According to Mr. Massengale, he thought that if he failed to stop defendant, defendant was going to kill Deputy Plai-sance.

Mr. Massengale, who grabbed a wooden boat paddle from another bystander, approached Deputy Plaisance and warned defendant to stop. According to Deputy Plaisance, when Mr. Massengale asked, Deputy Plaisance told Mr. Massengale to hit defendant with the paddle. Mr. Mas-sengale struck defendant in the shoulders but defendant ignored Mr. Massengale and continued to hit Deputy Plaisance. Mr. Massengale struck defendant again in the shoulders, to no avail. Finally, Mr. Mas-sengale struck defendant forcefully, with the flat of the paddle, in the back of the head.

Defendant finally stopped hitting Deputy Plaisance and rolled to his side. After defendant released him, Deputy Plaisance tased defendant, which subdued him. Lieutenant Mike Folse arrived almost immediately, and he and Deputy Plaisance together were finally able to handcuff defendant. The dashboard camera | fiin Deputy Plaisance’s vehicle recorded the incident. The video of the incident was introduced into evidence and played for the jury.

During the altercation, Deputy Plaisance received a laceration to his forehead, which required stitches; the dog bites on his scalp, which required stitches; the human bite on the right index finger, which required stitches and caused the most time out of work; and bruising and swelling to his face and jaw. For four days, he was unable to chew solid food.

Lieutenant George Breedy of the SCPSO testified that, on August 24, 2010, he was dispatched to the St. Charles Parish Hospital to investigate defendant for driving while intoxicated and obtained consent from defendant to draw blood. The Louisiana State Police Crime Lab tests showed that defendant’s blood alcohol level was 0.20 grams percent, which was almost three times the legal limit of .08. ’

After hearing the testimony and evidence, the 12-person jury unanimously found defendant guilty as charged of resisting arrest by force, attempted first degree murder of a peace officer, and disarming a peace officer. This appeal follows.

Law and Analysis

On appeal, defendant argues one counseled and twelve pro se assignments of error: in his counseled assignment of error, defendant argues that the trial court erred in denying the motion to continue to allow Mr. Simmons time to adequately prepare a pro se defense; in his first pro se assignment of error, defendant argues that the trial court erred in denying his request for compulsory process; in his second pro se assignment of error, defendant argues that the trial court erred in its jury instruction regarding reasonable doubt; in his third pro se assignment of error, defendant argues that he was prevented from providing the jury with all relevant facts to render a proper verdict; in his fourth pro se assignment of error, defendant Largues that he was unable to conduct any type of meaningful investigation after his request to represent himself was granted; in his fifth pro se assignment of error, defendant argues that the trial court erred in denying his motion to change his plea to not guilty by reason of insanity; in his sixth pro se assignment of error, defendant argues that he did not have “full confrontation;” in his seventh pro se assignment of error, defendant argues that his defense was prejudiced because his legs were shackled during the trial; in his eighth pro se assignment of error, defendant argues that the “prosecutor’s remark” affected the jury’s decision; in his ninth pro se assignment of error, defendant argues that he was denied effective assistance of counsel before trial; in his tenth pro se assignment of error, defendant argues that the trial judge erred in failing to appoint “replacement” counsel and allowing him to represent himself; in his eleventh pro se assignment of error, defendant argues that the trial judge abused his discretion in denying his pre-trial motion to recuse; and, in his twelfth, and final, pro se assignment of error, defendant “wishes to challenge not guilty plea on advice of counsel.”

Sole Counseled Assignment of Error and Pro se Assignments One, Three, Four, and Six

In these assignments, defendant argues that the trial court erred in denying the motion to continue trial. Specifically, defendant argues that by denying his motion to continue, the trial court abridged his right to present a defense, right to confrontation, and right to a fair trial.

| ^Defendant specifically argues that his right to present a defense and right to confrontation were violated when the trial judge denied him a continuance to allow him to subpoena the police officers’ employment and health records, and to seek appointment of a psychiatric expert to determine his mental state during the incident.

Defendant asserts that his right to a fair trial was violated because he had only one month to prepare his own defense, without means or time to conduct any meaningful investigation, or contact any lay and expert witnesses. Defendant finally contends that the guilty verdict was clearly attributable to the error so his conviction should be reversed.

The State responds that the trial judge did not err in denying defendant’s continuance. First, the continuance was requested on the eve of trial, one month after the trial judge granted defendant’s third request to represent himself. Next, defendant had been requesting permission to proceed pro se since March 30, 2011 and had filed numerous pro se motions while he was represented. Defendant received all of the State’s discovery responses in open court on May 25, 2011, which was more than three months before trial. He also received a copy of his attorney’s entire file in court on August 24, 2011. Further, defendant fails to establish witnesses that he would have called or evidence that he would have presented if given the opportunity. Most importantly, the State asserts that the testimony and evidence presented in support of defendant’s guilt was overwhelming so that the guilty verdict was unattributable to the alleged error.

Our review of the record reflects that, on August 10, 2011, the trial judge granted defendant’s request to represent himself and reiterated that the trial would commence on September 7,-2010. Defendant did not object.

[nOn August 24, 2011, defense counsel provided defendant with a copy of his entire file and reported that defendant had previously viewed the video of the incident. Further, the trial judge granted defendant’s request to immediately issue a subpoena duces tecum for defendant’s hospital records from the date of the incident. Although defendant stated that the September 7, 2011 trial date was “unrealistic,” he did not move for a continuance and did not object when the judge discussed the impending court date.

On August 30, 2011, defendant filed numerous motions, including a motion to continue trial to allow him to prepare for trial. In his written motion for continuance, defendant argued that, after examining the case file provided by defense counsel on August 24, 2011, he realized that he had not been evaluated by a psychiatrist. Further his attorney had not performed a background check on the victim, or obtained the victim’s hospital records, or other pertinent evidence defendant had repeatedly requested from defense counsel. Defendant asserted that the court had imposed an unrealistic time frame of 28 days for a pro se defendant to participate in proceedings, which violated defendant’s right to due process. On September 6, 2011, after a contradictory hearing, the trial judge denied this motion.

A motion for a continuance must be made in writing, allege the specific grounds upon which it is based and be filed at least seven days prior to trial. La.C.Cr.P. art. 707. At any time upon written motion and after contradictory hearing, the court may grant a continuance but only upon a showing that the motion is in the interest of justice. Id.

At the discretion of the court, a timely filed motion for continuance may be granted if there is good ground to continue. La.C.Cr.P. art. 712. Whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear 1 inabuse of discretion. State v. Shannon, 10-580 (La.App. 5 Cir. 2/15/11), 61 So.3d 706, 714-15, writ denied, 11-559 (La.9/30/11), 71 So.3d 283. Generally, a conviction will not be reversed even on a showing of an improper denial of a motion for a continuance absent a showing of specific prejudice. State v. Manning, 03-1982 (La.10/19/04), 885 So.2d 1044, 1077, cert. denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005); State v. Scie, 11-254 (La.App. 5 Cir. 12/28/11), 83 So.3d 1082, 1098.

Here, the defense had more than 10 months between defendant’s arraignment and the scheduled trial date to prepare for trial. As early as March 30, 2011, defendant had requested to represent himself. When the trial judge finally granted defendant’s request to represent himself on August 10, 2011, the trial judge warned defendant that the trial, which had already been continued at least twice, would commence on September 7, 2011. The trial judge reiterated that warning on August 24, 2011.

Based on the record before us, we cannot say that the trial court abused its sound discretion by denying defendant’s motion to continue. Moreover, defendant has failed to make a showing of specific prejudice to warrant reversal of his convictions. See State v. Victor, 11-45 (La.App. 5 Cir. 11/15/11), 82 So.3d 301, 307-10. Accordingly, we find no merit in the foregoing assignments of error.

Pro Se Assignment of Error Two

In this assignment of error, defendant argues that the trial court erred in its jury instruction regarding reasonable doubt. Defendant complains that, although the definition for reasonable doubt was given, the court failed to provide the jury with a definition for “all possible doubt.”

Here, defendant did not object to the jury charges when the trial court discussed the charges at length with the prosecution and defense before reading the |ncharges to the jury. A contemporaneous objection is required to preserve the issue of an improper jury instruction for appellate review. See La.C.Cr.P. art. 801(C); State v. Wilson, 93-617 (La.App. 5 Cir. 1/25/94), 631 So.2d 1213, 1216-19, writ denied, 94-476 (La.11/4/94), 644 So.2d 1046. We find that defendant failed to preserve his right to appeal any alleged issue with the jury instructions. Based on the foregoing, we decline to address this assignment of error.

Pro Se Assignment of Error Five

In this assignment, defendant argues that the trial court erred by denying his oral pro se motion to change his plea from not guilty to not guilty by reason of insanity. Defendant asserts that the court denied him the right to plea freely.

On August 24, 2011, defendant made an oral motion to change his plea from not guilty to not guilty by reason of insanity. The trial court denied defendant’s motion, citing La.C.Cr.P. art. 561, which states that “[t]he defendant may withdraw a plea of not guilty and enter a plea of not guilty and not guilty by reason of insanity within ten days after arraignment.” The trial judge noted that defendant’s arraignment was in 2010.

The trial court further stated that, although La.C.Cr.P. art. 561 provides that a defendant may change a plea at any time before the commencement of trial for good cause shown, defendant’s burden to show good cause increased with each day that his trial drew nearer. The trial court noted that, according to jurisprudence, a defendant can demonstrate good cause when he produces indicia of insanity and shows that the plea change is not a delaying tactic to achieve a strategic advantage. The trial judge articulated that, defendant-herein, in contrast, 112had not produced any evidence in the proceedings thus far that he suffered from mental illness, and this request was more likely a delaying tactic.

Initially, we note that defendant did not object to the trial judge’s denial of his request to change his plea when the ruling was made on August 24, 2011. A contemporaneous objection is required to preserve the issue properly for appellate review. La.C.Cr.P. art. 841. Having made no objection on the date of the ruling, the issue is not preserved for review.

Moreover, even if the issue had been preserved for review, we would find no error in the trial court’s ruling. To change his plea to not guilty by reason of insanity, a defendant must show, by something less than a preponderance of the evidence, “good cause,” or some evidentia-ry basis, for the plea. State v. Miller, 05-1826 (La.6/29/07), 964 So.2d 911, 922. Where good cause is lacking, the trial court does not abuse its discretion in denying the change of plea. Id. Conversely, a defendant with no evidence whatsoever of mental illness would not be able to show good cause as required by La.C.Cr.P. art. 561. Mat923.

In this case, defendant informed the trial judge on August 10, 2011, that he had never been treated for mental illness during his Faretta hearing. Thus, the record is devoid of evidence that defendant suffered from mental illness so, if we were to address this issue, we would find that the trial court did not abuse its discretion in denying defendant’s motion to change his plea. Again, if this issue had been preserved, we would find no error.

Pro Se Assignment Of Error Seven

In this assignment of error, defendant challenges the logistics of the courtroom during trial, including the trial court’s instruction that defendant remain restrained with leg shackles, and that the law enforcement officers be allowed to sit 113together. Specifically, defendant argues that the leg restraints prevented him from properly defending himself because he could not walk around in front of the jury. Next, defendant argues that the trial was effectively closed because, other than four unrelated spectators, the courtroom was populated only by members of the jury, “judicial officers,” and six to eight law enforcement officers in plain clothes. Defendant sat alone at the defense table with his standby counsel and security in the gallery directly behind him. Defendant argues that this atmosphere constituted an unacceptable risk that the jury would be prejudiced against him.

With regard to shackling, on September 6, 2011, which was the day before trial, the trial judge instructed defendant that he would be shackled at the defense table throughout the proceedings. The trial judge also instructed the prosecutors that they would remain at their table during the trial and created an elaborate evidence delivery system using court personnel so that the jury would not be aware that defendant was shackled.

Initially, we note that, when the trial judge issued this order, defendant did not object at that time that he would be shackled to the floor nor did he raise an objection at any time during trial. A contemporaneous objection is required to preserve the issue properly for appellate review. La.C.Cr.P. art. 841. Having made no objection to this ruling, the issue is not preserved for review.

Moreover, even if the issue had been preserved for review, we would find no error in the trial court’s ruling. When shackling is raised for the first time after conviction, the mere fact that the defendant was shackled in the presence of the jury does not afford immediate grounds for relief. The defendant must additionally show that the shackling seriously affected the fairness of the trial, and that the trial judge abused his discretion to the point that a fair trial was not possible under the circumstances. See, State ex rel. Miller v. Henderson, 329 So.2d 707, 712 (La.976). As noted above, the trial judge went through extensive measures to ensure the public’s safety while preventing the jury from learning that defendant was shackled during trial. If this matter were preserved for review; we would find no error.

Next, defendant contends that the presence of law enforcement officers in the courtroom prejudiced him. Again, the record does not reflect that defendant complained of this issue at trial. A contemporaneous objection is required to preserve the issue properly for appellate review. La.C.Cr.P. art. 841. Having made no objection, the issue is not preserved for review.

Moreover, even if the issue had been preserved for review, we would find no error in the trial court’s ruling. “When a convicted defendant claims denial of a fair trial, because of a courtroom arrangement, a reviewing court’s first inquiry should be whether the practice or action complained of was inherently prejudicial. If not inherently prejudicial, the second inquiry should be whether the accused has shown actual prejudice to him.” State v. Ferrell, 94-702 (La.App. 5 Cir. 5/30/95), 656 So.2d 739, 743-44, writ denied, 95-2360 (La.4/18/97), 692 So.2d 433.

Here, the record does not show where the officers in plain clothes were seated. There is no indication that they were armed. We cannot say that the presence of these officers was inherently prejudicial. Likewise, we cannot say that defendant has demonstrated actual prejudice. There is nothing in the record suggesting that the placement or demeanor of any spectator marked defendant as dangerous or caused a juror to believe that his or her safety was possibly threatened. Again, if this matter were preserved for review, we would find no error.

11sPro Se Assignment Of Error Eight

In this assignment, defendant argues that the prosecutor made unfair remarks during closing arguments that were calculated to psychologically affect the jury. During the State’s rebuttal to defendant’s closing argument, the prosecutor asked the victim to stand up and said, “If you want to call him a liar, call him a liar.” The defendant objected and the trial judge asked the victim to be seated. The defendant did not ask for an admonition to the jury.

The scope of argument and rebuttal is defined by La.C.Cr.P. art. 774, which reads:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice.
The state’s rebuttal shall be confined to answering the argument of the defendant.

Closing arguments in criminal cases are restricted to evidence admitted to trial, to lack of evidence, to conclusions of fact that may be drawn therefrom, and to the law applicable to the case. The argument may not appeal to prejudice. State v. Fernandez, 03-987 (La.App. 5 Cir. 12/30/03), 864 So.2d 764, 768.

A prosecutor has considerable latitude in making closing arguments. State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, 374, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996); State v. Williams, 03-942 (La.App. 5 Cir. 1/27/04), 866 So.2d 1003, writ denied, 04-450 (La.6/25/04), 876 So.2d 832. A conviction will not be reversed due to improper remarks during closing argument unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Fernandez, supra. In making this decision, credit should be given to the jury’s good sense and fairmindedness. State v. Eaton, 524 So.2d 1194, 1208 (La.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989).

In this matter, although the prosecutor’s comment could be viewed as an improper plea to prejudice, we look at the wealth of evidence presented against defendant and are not “thoroughly convinced that the remarks influenced the jury and contributed to the verdict.” State v. Rochon, 98-717 (La.App. 5 Cir. 3/10/99), 733 So.2d 624, 630. Based on the foregoing, we find that defendant’s eighth pro se assignment of error lacks merit.

Pro Se Assignment Of Error Nine

In this assignment of error, defendant argues that defense counsel’s pretrial representation was ineffective. Defendant argues that he was forced to author his own defense even before he was allowed to proceed pro se because defense counsel never discussed a defense with him. Specifically, defendant argues that his lawyer refused to defend him using the trial strategy that defendant desired, which included introducing evidence of (1) police harassment that caused defendant to “snap,” and (2) a racial discrimination lawsuit against his employer, which showed his mental fragility and supported an insanity defense. Defendant also alleges that his attorney failed to investigate (1) defendant’s assault while being treated at St. Charles Hospital and (2) employment and health records for the victim and arresting officers.

A criminal defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In order to prove ineffective assistance of counsel, the defendant must show that counsel’s | ^performance was deficient- and that this deficiency prejudiced the outcome of the trial. Strickland, supra.

To show that counsel was deficient, the defendant must demonstrate that counsel failed to meet the level of competency normally demanded of attorneys in criminal cases. State ex rel. Graffagnino v. King, 486 So.2d 559, 564 (La.1988). To prove prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland, supra. An error is considered prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Id.

The Louisiana Supreme Court has held that, generally, a claim of ineffective assistance of counsel is most appropriately addressed through an application for post conviction relief rather, than direct appeal, which affords the parties an opportunity to make an adequate record for review. State v. Truitt, 500 So.2d 355 (La.1987). However, if the appeal record contains sufficient evidence to decide the issue, and the issue is properly raised by assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Fairley, 02-168 (La.App. 5 Cir. 6/26/02), 822 So.2d 812, 816, writs denied, 03-1427 (La.4/23/04), 870 So.2d 290 and 08-2581 (La.1/30/09), 999 So.2d 755.

In this case, the appellate record is insufficient to consider defendant’s allegations of pre-trial ineffective assistance of counsel. Decisions relating to failure to investigate certain theories or other trial preparation issues would require an evi-dentiary hearing, and cannot possibly be decided in this appeal. State v. Holt, 08-1276 (La.App. 5 Cir. 5/26/09), 12 So.3d 502, writ denied, 09-1681 (La.3/26/10), 29 So.3d 1249; State v. Watts, 98-1073 (La.App. 5 Cir. 5/19/99), 735 So.2d 866. Only in an evidentiary hearing in the district court, where the |isdefendant could present evidence beyond that contained in the instant record, could these allegations be sufficiently investigated. Accordingly, we decline to address this assignment of error.

Pro Se Assignment of Error Ten

With respect to the trial, defendant argues that the trial court erred in failing to appoint replacement counsel and forcing defendant to represent himself, which constructively denied defendant’s right to effective assistance of counsel.

Once defendant began representing himself, he had the opportunity to present his own trial strategy. A self-represented defendant is unable to later claim he was denied effective assistance of counsel by his own representation. State v. Bell, 09-199 (La.11/30/10), 58 So.3d 437, 445-46, cert. denied, — U.S. -, 131 S.Ct. 3035, 180 L.Ed.2d 856 (2011).

Further, to the extent that defendant argues that he should have been appointed another attorney at no cost, we find no error in the trial court’s ruling. If a defendant is indigent, he has the right to court-appointed counsel. An indigent defendant does not, however, have the right to have a particular attorney appointed to represent him. State v. Berry, 08-151 (La.App. 5 Cir. 6/19/08), 989 So.2d 120, 130, writ denied, 08-1660 (La.4/3/09), 6 So.3d 767. An accused’s right to choose his counsel allows the accused to retain the attorney of his choice, if he can manage to do so. Id. That right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice. See also, State v. Brown, 03-897 (La.4/12/05), 907 So.2d 1, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006). Here, the trial judge did not err in refusing to appoint substitute counsel.

| iaFinally, the most important claim of this assignment of error is that defendant did not freely and voluntarily waive his right to assistance of counsel.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution give a defendant the right to counsel as well as the right to defend himself. State v. Brooks, 452 So.2d 149, 155 (La.1984) (on rehearing); State v. Berry, supra. An accused has the right to choose between the right to counsel and the right to self-representation. State v. Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877, 894, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003).

A defendant may elect to represent himself if the choice is knowingly and intelligently made and the assertion of the right is clear and unequivocal. State v. Campbell, 06-0286 (La.5/21/08), 983 So.2d 810, cert. denied, 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). The right to counsel may be waived, but the accused must know of the right and intentionally relinquish the right. See Faretta, supra.

In accepting a waiver of counsel, the trial court should advise the defendant of the nature of the charges, the penalty range for the charges, and the dangers and disadvantages of self-representation, such as the failure to recognize objections to inadmissible evidence and the inability to adhere to technical rules governing trials. State v. Bruce, 03-918 (La.App. 5 Cir. 12/30/03), 864 So.2d 854, 857. In addition, the court should inquire into the defendant’s age, education and mental condition, and should determine according to the totality of circumstances whether the accused understands the significance of the waiver. Id.

Whether a defendant has knowingly, intelligently, and unequivocally asserted the right to self-representation must be determined on a case-by-case Unbasis, considering the facts and circumstances of each case. State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, 147-48, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).

Courts must indulge in every reasonable presumption against a waiver of counsel. State v. LaGarde, 07-288 (La.App. 5 Cir. 10/30/07) 970 So.2d 1111, 1119. The trial court is given much discretion in determining whether the defendant’s waiver was knowing and intelligent. Id. at 1120. An appellate court should not reverse the trial court ruling absent an abuse of its discretion. Id.

On August 10, 2011, the trial court heard defendant’s written motion to dismiss his appointed counsel and represent himself. During the Faretta colloquy, the trial judge established that defendant was 48 years old and that he completed the tenth grade then obtained a GED. Defendant also indicated that he had never been under a doctor’s care for any type of mental or psychiatric illness.

The trial judge noted that defendant had spoken in court a number of times, and he never detected any type of impediment to his ability to understand the court proceedings. Defendant agreed that he was able to understand the proceedings.

Defendant indicated that he understood that he was charged with three different counts, which consisted of attempted first degree murder of a police officer, resisting an officer by force, and disarming of a police officer. Defendant indicated that he understood that, if he was convicted on those felonies, the penalties for those offenses were: a minimum of 20 years and a maximum of 50 years with the Department of Corrections without the benefit of probation, parole, or suspension of sentence for attempted first degree murder of a police officer; a maximum sentence of 3 years with the Department of Correction on the charge of resisting arrest by force; and a maximum of 5 years with the Department of Corrections on the charge of disarming of a police officer. Defendant also stated |81that he understood that the State intended to file a multiple offender bill of information, which could expose him to the maximum sentence of life in prison.

Defendant stated that he understood that, because of the seriousness of the charge against him and the potential consequences of a guilty verdict, the trial judge believed it was not in defendant’s best interest to proceed without assistance of trained counsel. Defendant indicated that he understood that he would be held to the same standard regarding the rules of criminal procedure and applicable law. After this discussion, the trial judge granted defendant’s request to represent himself and appointed two lawyers as standby counsel.

In the present case, the trial court verified defendant’s age, education level, and the fact that he had no history of mental illness. The court ensured that defendant understood the seriousness and potential consequences of a guilty verdict. Considering the foregoing, we find that the trial judge did not abuse his vast discretion in determining that defendant’s waiver of his right to counsel was knowing and intelligent. We find that this assignment of error lacks merit.

Pro Se Assignment Of Error Eleven

In his eleventh assignment of error, defendant contends that the trial judge was not impartial and was not concerned with the fundamental fairness of the proceedings. On August 30, 2011, defendant filed a motion to recuse the trial judge for bias or prejudice, which was denied on the day before trial was to commence, September 6, 2011.

On appeal, defendant claims that the trial judge “failed to exercise sound discretion in utilizing resources at its disposal to maintain an atmosphere of impartiality,” which are different grounds for recusal than he raised in the trial court. A defendant is limited on appeal to those grounds articulated at trial, and a new basis for the objection may not be raised for the first time on appeal. State v. Jackson, 450 So.2d 621 (La.1984); State v. Alvarez, 10-925 (La.App. 5 Cir. 6/29/11), 71 So.3d 1079, 1085. This issue is not properly before this Court on appeal.

Pro Se Assignment of Error Twelve

In his twelfth assignment of error, defendant states that he “challenges his not guilty plea on advice of counsel.” However, defendant fails to brief this issue. Therefore, we consider this specification abandoned. U.R.C.A. 2-12.4; State v. Fernandez, 03-987 (La.App. 5 Cir. 12/30/03), 864 So.2d 764.

Error Patent Discussion

Defendant requests an error patent review, which this Court routinely performs in accordance with La.C.Cr.P. art. 920. Our review reveals no errors that require correction.

Conclusion

Based on the foregoing, we affirm defendant’s convictions and enhanced sentences for attempted first degree murder of a peace officer, resisting arrest by force, and disarming a peace officer.

AFFIRMED.

      . On February 22, 2011, the State amended the bill on information as to Count 2 to indicate that the victim of the offense was "a peace officer."

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . The trial judge retained defense counsel and appointed an additional attorney as standby trial counsel.

      . Defendant represented himself for the entire trial, including opening and closing statements, and direct and cross examination of all witnesses.

      . Defendant’s counseled assignment of error number one, and pro se assignments of error numbers one, three, four and six will be discussed together because they are related.

      . In his first pro se assignment of error, defendant argues that the trial court erred in denying his request for compulsory process.

      . In his third pro se assignment of error, defendant contends that he was prevented from providing the jury with all relevant facts to render a proper verdict.

      . In his fourth pro se assignment of error, defendant argues that he was unable to conduct any type of meaningful investigation because, after his request to represent himself was finally granted, he only had 28 days to prepare his defense.

      . In his sixth pro se assignment of error, defendant argues that he could not obtain evidence to support his defense so he was prevented from fully exercising his right to confront the State’s witnesses.

      . La.C.Cr.P. art. 801(C) provides that:
      A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error. The nature of the objection and grounds therefor shall be stated at the time of objection. The court shall give the party an opportunity to make the objection out of the presence of the jury.

      . The defendant will have to satisfy the requirements of La.C.Cr.P. art. 924 et seq. to receive such a hearing.


author: ROBERTA. CHAISSON, Judge.

text:
    STATE of Louisiana v. Jonathan M. ROBINSON.
    No. 13-KA-788.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Seth W. Shute, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and ROBERT M. MURPHY.
   ROBERTA. CHAISSON, Judge.

|2In this appeal, defendant, Jonathan Robinson, challenges his conviction and sentence for possession of cocaine. The only issue presented is whether the trial court erred in denying defendant’s motion to suppress evidence. For the reasons that follow, we find that the trial court erred in denying this motion, and accordingly, we vacate defendant’s guilty plea and sentence and remand this matter to the trial court for further proceedings.

PROCEDURAL HISTORY

On June 17, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession of cocaine in violation of LSA-R.S. 40:967(C). At his arraignment on July 1, 2013, defendant pled not guilty to the charge. Defendant thereafter filed a motion to suppress evidence which the trial court heard and denied on August 15, 2013.

Following this denial, defendant, on August 19, 2013, withdrew his plea of not guilty and pled guilty as charged pursuant to State v. Crosby, 338 So.2d 584 (La.1976). In accordance with the plea agreement, the trial court sentenced defendant to three years imprisonment at hard labor, suspended the sentence, and placed defendant on three years of active probation, subject to various conditions. Defendant now appeals.

FACTS

At the August 15, 2013 suppression hearing, the State offered the testimony of Detective Mark McCormick of the Kenner Police Department. According to Detective McCormick, at approximately 5:43 p.m. on May 15, 2013, he was on patrol with four other detectives in an unmarked Chevrolet Tahoe heading east on 31st Street in Kenner. The officers were stopped at a stop sign when they observed a vehicle, driven by defendant, heading west on 31st Street, also stopped at the stop sign. Detective McCormick’s attention was drawn to the vehicle when an individual on a bicycle approached the driver’s side door and engaged in a brief conversation with defendant at the stop sign. Thereafter, defendant immediately took a right hand turn and pulled into a driveway in the 3100 block of Tifton Street. The detectives relocated to the 3000 block of Tifton to further observe the two individuals. The detectives observed the individual on the bicycle drop his bike and enter the passenger side of defendant’s vehicle.

Upon seeing this, Detective McCormick pulled up behind defendant’s vehicle, blocked it in, turned on the flashing lights, and exited the vehicle. Detective McCormick and another detective approached the driver’s side of the vehicle, where Detective McCormick observed a bag of white rocks in defendant’s lap. As soon as the officers identified themselves, defendant attempted to destroy the bag. The officers removed defendant from the vehicle and located the bag of white material. The white material field-tested positive for cocaine and was determined to weigh 1.4 grams. At that point, defendant was placed under arrest.

UDuring his testimony, Detective McCormick acknowledged that before the stop he did not observe a transaction take place between the two individuals nor any illegal activity. Yet, based on his twelve years of experience as a police officer, he explained that the two individuals’ conduct was “extremely consistent with a drug transaction.”

After considering the evidence presented, the trial court denied defendant’s motion to suppress, finding that the officers had “reasonable suspicion to conduct an investigatory stop, and the narcotics were seen in plain view, so the seizure was constitutional.”

DENIAL OF MOTION TO SUPPRESS EVIDENCE

In his sole assignment of error, defendant contends that the trial court erred in denying his motion to suppress evidence. Specifically, defendant contends that the officers did not have reasonable suspicion to stop or probable cause to detain him. Therefore, since the initial stop was illegal, the subsequent seizure of the cocaine was not justified under the plain view exception to the warrant requirement and should be suppressed.

In contrast, the State contends that no investigatory stop occurred, and therefore, Detective McCormick did not need reasonable suspicion or probable cause to approach defendant’s parked car. Alternatively, the State contends that there was reasonable suspicion for an investigatory stop. We have considered these arguments and, for the reasons that follow, we agree with defendant’s position, and accordingly, reverse the judgment of the trial court which denied defendant’s motion to suppress.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. Warrant-less searches and seizures are per se unreasonable unless justified by one |sof the exceptions to the warrant requirement. State v. Morales, 12-454 (La.App. 5 Cir. 12/18/12), 125 So.3d 1141, 1146.

In a hearing on a motion to suppress evidence seized without a warrant, the State bears the burden of proving that an exception to the warrant requirement applies. LSA-C.Cr.P. art. 703(D). The United States Supreme Court, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), recognized the investigatory stop as an exception to the warrant requirement. The Terry standard, as codified in LSA-C.Cr.P. art. 215.1, authorizes law enforcement officers to stop and question a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit a criminal offense. See State v. Johnson, 10-209 (La.App. 5 Cir. 10/12/10), 52 So.3d 110, 117, writ denied, 10-2546 (La.4/1/11), 60 So.3d 1248.

Investigatory stops require reasonable suspicion of criminal activity. Reasonable suspicion is something less than probable cause to arrest and requires that police officers have sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. Absent reasonable suspicion, an investigatory stop is illegal and the evidence seized as a result is suppressible. State v. Lane, 09-179 (La.App. 5 Cir. 9/29/09), 24 So.3d 920, 923-24, writ denied, 09-2360 (La.5/21/10), 36 So.3d 226.

The determination of reasonable grounds for an investigatory stop does not rest on the officer’s subjective beliefs and attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of the challenged action. State v. Morales, 125 So.3d at 1146. An officer’s mere unpartic-ularized suspicion or “hunch” of criminal activity is insufficient to establish reasonable grounds to stop a person. State in Interest of J.H., 11-324 (La.App. 5 Cir. 12/28/11), 83 So.3d 1100, 1105. Factors that may support reasonable | (¡suspicion for an investigatory stop include an officer’s experience, his knowledge of recent criminal patterns and his knowledge of an area’s frequent incidence of crimes. A reviewing court must take into consideration the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer that might elude an untrained person. State v. Lane, 24 So.3d at 924.

Prior to addressing the issue of reasonable suspicion, we must first consider whether the officers’ encounter with defendant did, in fact, constitute a stop within the meaning of the Fourth Amendment.

A person has been seized for purposes of the Fourth Amendment only if he has been physically restrained or if he actually submits to an official show of authority under circumstances in which a reasonable person would understand that his freedom of movement had been decisively curtailed. State v. Richardson, 09-0638 (La.10/20/09), 23 So.3d 254, 257. Under the Louisiana Constitution, a person is also “seized” when an actual stop is imminent. An actual stop is imminent “when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or elude the encounter, an actual stop of the individual is virtually certain.” State v. Tucker, 626 So.2d 707, 712 (La.1993); State v. Turner, 08-1188 (La.App. 5 Cir. 5/12/09), 13 So.3d 695, 699, writ denied, 09-2100 (La.8/18/10), 42 So.3d 400.

Contrary to the State’s assertion in its appellate brief, we find that the officers’ encounter with defendant clearly constituted a seizure within the meaning of the Fourth Amendment and the Louisiana Constitution. We acknowledge that defendant’s vehicle was parked and was not actively stopped by the police. However, at the suppression hearing, Detective McCormick clearly testified that he pulled his unmarked vehicle right behind defendant’s car, and with the use of flashing lights, blocked defendant’s vehicle in the driveway. He then exited the 17vehicle and approached defendant’s car. Although it is not clear where the officers were located during the encounter, the record indicates that five officers were on the scene, at least two of whom approached the driver’s side of the vehicle. Based on these factors, we find that defendant was not free to leave and that an actual stop was “virtually certain” to occur.

Having determined that a seizure within the meaning of the Fourth Amendment and the Louisiana Constitution occurred, we now focus on whether Detective McCormick had reasonable suspicion of criminal activity to justify the stop. This issue entails determining whether Detective McCormick established “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted]” the stop of defendant. See Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880.

In State v. Gagnon, 01-1302 (La.App. 5 Cir. 4/10/02), 817 So.2d 167, narcotics detectives had received information that a black male was selling cocaine from the second floor of an apartment complex, that residents of the complex had complained about the amount of traffic in and out of the apartment, and that the black male often met people at the gateway of the complex. Pursuant to this information, an officer conducted surveillance of the apartment, during which he observed an individual, who was later determined to be the defendant, meet a black male at the gateway to the complex for about 30 seconds, and then leave in her vehicle. At the suppression hearing, the officer testified that this was consistent with a narcotics deal; however, he admitted that he did not witness a hand-to-hand transaction.

The officer followed the vehicle and when it appeared to be stopping, he turned on his flashing lights. The officer explained that he stopped the vehicle “[biased upon the activity I had seen and the fact that we wanted to identify any | ¡^persons or the driver of the vehicle and try to get an identification so that we could further our investigation into the apartment.” State v. Gagnon, 817 So.2d at 169. The defendant was driving without a license, for which the officer placed her under arrest. When he conducted a pat-down search of the defendant, the officer found a small off-white rock in her pants’ pocket, which was determined to be cocaine.

The defendant subsequently pled guilty to possession of cocaine and argued on appeal that the trial court erred in denying her motion to suppress the evidence because the officer lacked a reasonable suspicion to stop her. This Court agreed, reversed the denial of the motion to suppress, vacated the defendant’s conviction and sentence, and remanded the matter. In reaching this conclusion, this Court found support in the fact that the officer was unsure of any criminal activity and the specific basis he articulated as the justification for the stop was to obtain the identity of the driver. The Court also noted that the officer had not witnessed a hand-to-hand transaction and found that, despite his testimony that the observed conduct was consistent with a narcotics deal, he did not articulate any basis to believe that the defendant was committing, had committed, or was about to commit an offense. In addition, the Court pointed out there was no evidence that this area or the apartment complex was a known drug or high crime area. State v. Gagnon, 817 So.2d at 171.

Similarly, in State v. Washington, 03-1134 (La.App. 5 Cir. 2/10/04), 866 So.2d 1058, this Court found there was no reasonable suspicion to justify a stop where the basis for the stop amounted to an officer’s determination that the observed conduct was consistent with narcotics activity. In Washington, narcotics officers were conducting surveillance of a residence where other officers had witnessed narcotics transactions. During the surveillance, an officer observed a blue pickup truck approach the front of the residence. A passenger, later identified |9as the defendant, exited the truck, entered the residence briefly, returned to the truck, and departed. Officers followed and initiated a stop of the truck, which turned up heroin in the defendant’s possession.

The defendant subsequently pled guilty to possession of heroin and argued on appeal that the trial court erred in denying his motion to suppress the evidence because his actions of entering and exiting a residence under surveillance for drug activity, without more, did not provide officers with a reasonable suspicion necessary to conduct an investigatory stop of the vehicle. This Court agreed, reversed the denial of the motion to suppress, and vacated the defendant’s conviction and sentence.

In reaching this conclusion, this Court determined that an individual’s “mere presence at a residence about to be searched pursuant to a warrant or near a high crime area, without more, does not provide the police with reasonable suspicion based upon articulable facts to make an investigatory stop.” This Court noted that the detectives did not offer any testimony that the defendant acted suspiciously or unusually. Their testimony merely established that the defendant briefly entered and exited a residence under surveillance for drug activity. State v. Washington, 866 So.2d at 1062-63.

In State v. Williams, 11-0466 (La.App. 4 Cir. 9/28/11), 74 So.3d 1208, writ denied, 11-2324 (La.1/20/12), 78 So.3d 142, the Court found, looking at the totality of the circumstances, that the police officers lacked reasonable suspicion to stop the defendant, and therefore, the cocaine abandoned by him during the stop was required to be suppressed. In the Williams case, defendant and his brother were stopped in the early evening across the street from an apartment complex that had been the scene of several criminal incidents and which was posted with “no trespassing” signs. The defendant and his brother were standing on the sidewalk |1flengaged in conversation, and defendant had his hands in his jacket pockets. The officers then approached the brothers, and the two discontinued their conversation. The defendant’s brother exercised his right not to speak with the officers and apparently placed his hands in his jacket pockets as he walked away. In finding that the police officers lacked reasonable suspicion, the Fourth Circuit noted, “It is difficult to conclude that the brothers’ actions — standing on the sidewalk and talking to each other, even if they had their hands in their pockets — reasonably could have led the officers to believe that the brothers were engaged in a purported armed robbery or any other type of criminal activity.” Id. at p. 1216.

Likewise, in the instant case, we find that the police officers lacked reasonable suspicion at the time they stopped defendant. At the suppression hearing, Detective McCormick testified that his attention was drawn to defendant’s vehicle when an individual on a bicycle approached the driver’s side door and engaged in a brief conversation with defendant while he was stopped at a stop sign. Thereafter, the two relocated to a driveway in the 3100 block of Tifton Street. The individual on the bicycle dropped his bike and entered the passenger side of the car. During his testimony, the officer admitted that he did not see any transaction between defendant and the individual on the bicycle. He further testified that he did not observe any illegal activities. Rather, he made the stop based on his experience that the observed conduct was “extremely consistent with a drug transaction.” At the suppression hearing, there was no testimony that this was a high crime area, nor was there any indication that this area was under surveillance for narcotics activity. Based on the totality of the circumstances, we find that Detective McCormick’s observation of activity that was “extremely consistent with a drug transaction,” by itself, did not establish reasonable suspicion to justify the lnStop. As a consequence, the stop of defendant and the subsequent seizure of cocaine were unconstitutional.

Accordingly, we reverse the trial court’s ruling denying the motion to suppress evidence, vacate defendant’s guilty plea and sentence, and remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED.


text:
    STATE of Louisiana v. Joey P. GRIFFIN.
    No. 13-KA-809.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Brian D. Villalobos, Assistant District Attorneys, Gretna, Louisiana, Counsel for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Thibodaux, Louisiana, Counsel for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| ^Defendant, Joey P. Griffin, appeals his conviction and sentence for violation of La. R.S. 14:65. For the following reasons, we affirm defendant’s conviction and defendant’s sentence as amended.

Procedural History

On October 19, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant with simple robbery in violation of La. R.S. 14:65. On April 24, 2013, defendant pleaded not guilty at arraignment. On May 30, 2013, defendant withdrew his plea of not guilty and entered a plea of guilty. Defendant then waived sentencing delays, and the trial court sentenced him to five years imprisonment with the Department of Corrections.

That same day, the State filed a multiple offender bill of information, alleging defendant to be a second felony offender. Defendant stipulated to the |smultiple bill. The court then vacated the original sentence and imposed an enhanced sentence of five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

The trial court granted defendant’s motion for appeal on July 18, 2013.

Factual History

Because this case was resolved without defendant proceeding to trial, the facts underlying the crime are not fully developed in the record. However, at the plea colloquy, the State offered the following factual basis for defendant’s guilty plea:

On the date specified in the bill of information, ... the victim had won some money at video poker, at an establishment, went into the bathroom, and was attacked by [defendant] and Carlos Val-divieso, ... where he was forced to surrender his winnings and some other money.

Anders Brief

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 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.

Discussion

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be 14wholly 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 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.” Id.

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 (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 either 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 appellant counsel. Id.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could not find any non-frivolous issues to raise on appeal. She notes that during defendant’s plea colloquy, no issues were preserved for appellate review. The State likewise contends that appellate counsel has demonstrated a diligent, complete, and thorough description of the procedural history of the case and that, based on an adequate opportunity to conscientiously review and fully research the case, counsel determined there were no significant non-frivolous issues upon which to base an appeal. Consequently, the State requests that this Court grant counsel’s request to withdraw and affirm defendant’s conviction and sentence. ,

On October 11, 2013, appellate counsel sent defendant a letter notifying him of his case’s lack of appealable issues, her intent to withdraw, and his right to file a pro se brief. This Court also sent defendant a letter by certified mail informing him that an Anders brief was filed on his behalf and that he had until November 11, 2013, to file a pro se supplemental brief. On November 22, 2013, defendant filed a pleading seeking to review the record and filed a supplemental brief. In an Order rendered on November 26, 2013, this Court ordered that defendant be provided with a copy of the record and allowed him until December 26, 2013, to file a supplemental pro se brief. Defendant failed to file a pro se brief.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. However, there is one defect that appears to require corrective action that is addressed in the error patent discussion, infra.

| (¡First, 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 La.C.Cr.P. arts. 464-66.

Second, as reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him. He was present for his arraignment, guilty plea, original sentencing, multiple offender proceeding, and multiple offender sentencing. As such, defendant’s presence does not appear to present an issue that would support an appeal.

Third, defendant’s guilty plea on the original bill and his stipulation to the multiple bill were properly obtained. He was advised of and waived his rights in regard to both. Regarding his guilty plea, defendant was advised that by pleading guilty he was waiving, among other things, his right to trial by jury, his right of confrontation, and his right against self-incrimination. Regarding his stipulation to the multiple bill, defendant was informed of the allegation contained in the bill, and that by stipulating to the allegation, he waived his right to a hearing thereupon. He was also advised that a stipulation would waive his right to remain silent at the hearing.

Last, defendant’s enhanced sentence presents one issue that is addressed in the error patent discussion, infra. Other than this, defendant’s sentence does not present any other issues for appeal. His original sentence and his enhanced sentence were both within the sentencing ranges prescribed by statute. See La. R.S. 14:65 and 15:529.1. In any event, appellate review of his sentences is precluded since they were imposed pursuant to plea agreements. See La.C.Cr.P. art. 881.2(A)(2); State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d_[2ll71, 1173. Plus, if a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, which precludes review of such defects either by appeal or post conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Moreover, a stipulation to a multiple bill bars a defendant from asserting on appeal that the State failed to produce sufficient proof at the multiple bill hearing. See State v. Schaefer, 97-465 (La.App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

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

Error Patent Discussion

The record was reviewed for errors patent, according to 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. 5th Cir.1990).

A review of the record reveals that defendant’s enhanced sentence is illegal on account of its improper restriction of defendant’s parole eligibility. As a second felony offender, defendant was sentenced to five years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. This violates La. R.S. 15:529.1(G), which, at the time of the offense, provided that a sentence imposed under La. R.S. 15:529.1 “shall be without benefit of probation or suspension of sentence.”

|sThe sentence conditions required by La. R.S. 15:529.1(G) are additions to, rather than replacements of, those conditions required by the sentencing provisions for the underlying offense. State v. Martin, 18-34 (La.App. 5 Cir. 6/27/18), 121 So.3d 170, 176. At the time of the offense, La. R.S. 14:65(B) provided: “Whoever commits the crime of simple robbery shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both.” Therefore, where neither the sentencing provision for defendant’s underlying offense nor the sentencing provision for his second felony offender status restricts parole eligibility, it is apparent that the trial court erred in restricting defendant’s parole eligibility.

The Louisiana Supreme Court has held that in cases in which a sentencing error by the trial court does not involve the omission of a restrictive term specified by the legislature as part of the sentence but the imposition of limits beyond what the legislature has authorized in the sentencing statute, an appellate court should not rely on La. R.S. 15:301.1(A) to correct the error as a matter of law but should correct the sentence on its own authority under La. C.Cr.P. art. 882 to correct an illegal sentence “at any time.” State v. Sanders, 04-17 (La.5/14/04), 876 So.2d 42 (per cu-riam).

Accordingly, we amend defendant’s sentence to delete the restriction on parole, and order the trial court to correct the commitment. La.C.Cr.P. art. 882; See State v. Richard, 12-310 (La.App. 5 Cir. 4/24/13), 115 So.3d 86, 96, writ denied, 13-1220, 126 So.3d 497 (La.12/2/13), citing State v. Lipton, 02-162 (La.App. 5 Cir. 9/30/03), 857 So.2d 1162, 1163, writ denied, 03-3058 (La.2/20/04), 866 So.2d 818. We further remand this matter and order the trial court to transmit the original of the corrected commitment to the officer in charge of the institution to |9which defendant was sentenced. La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

Decree

Accordingly, we affirm defendant’s conviction and defendant’s sentence as amended. Further, we grant appellate counsel’s motion to withdraw as counsel for defendant.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED; MOTION TO WITHDRAW GRANTED.

      . Also charged in this bill of information was co-defendant Carlos E. Valdivieso, Jr.

      . "[W]hen the trial judge states that the sentence is to the Department of Corrections, the sentence is necessarily at hard labor.” State v. Clofer, 11-494 (La.App. 5 Cir. 11/29/11), 80 So.3d 639, 643.

      . See Error Patent Discussion, infra, regarding defendant’s enhanced sentence.

      . It is noted that the trial court’s Order granting defendant’s appeal is dated July 18, 2009. The year "2009” appears to be a typographical error since the prosecution of defendant was instituted in 2012. It seems the Order should be dated July 18, 2013.

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

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

      . Defendant's guilty plea was not entered pursuant to State v. Crosby, 338 So.2d 584 (La.1976).

      . The Louisiana Supreme Court has held a defendant should be sentenced pursuant to the version of La. R.S. 15:529.1 in effect at the time of the commission of the charged offense. State v. Parker, 03-0924 (La.4/14/04), 871 So.2d 317, 326.

      . It is well-settled that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, 520.