author: WETHERELL, J. SWANSON, J.,

text:
    STATE of Florida, Appellant, v. Rodney Larry ROBINSON, Appellee.
    No. 1D14-2017.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2014.

      Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   WETHERELL, J.

The State appeals what amounts to a three year county jail sentence for two first-degree felonies committed by an offender with a lengthy criminal record. The State contends that the grounds relied upon by the trial court for this downward departure sentence are not legally valid. We agree. Accordingly, we reverse and remand for resentencing.

Factual and Procedural Background

The appellee, Rodney Larry Robinson, sold $50 worth of crack cocaine to a confidential source near a church in Jasper. He was arrested and charged with sale of cocaine within 1,000 feet of a church (count 1) and possession of cocaine with the intent to sell within 1,000 feet of a church (count 2). Robinson entered an open plea of guilty to both counts. His Criminal Punishment Code (CPC) scoresheet included three prior felony drug offenses — trafficking in cocaine, sale of cocaine, possession of cocaine with the intent to sell — and a prior battery, and it reflected a lowest permissible sentence of 60.75 months in state prison.

Over the State’s objection, the trial court imposed a downward departure sentence of 364 days in the county jail followed by 2 years of community control and 8 years of probation with no credit for the nearly two years that Robinson had served in the county jail since his arrest. The court did not provide written findings to support this downward departure; however, at the sentencing hearing, the court explained its rationale for the sentence as follows:

In considering an appropriate sentence, in this case, I think the Court has to be mindful of the legislative policy and the legislative intent, to — to deal with this particular problem [of drug possession and sale], and the scourge of this problem, as it encroaches upon neighborhoods, churches, schools in such a way as to provide more serious damage and harm to the community than would be the normal case.
At the same time, the Court has to be mindful of the provisions of chapter 921.0026 and the factors that have been presented here. It has been the Court’s observation since taking office that the disposition of cases in our circuit, especially in our county here, are really totally different from the way cases are handled in, let’s say Dade County or Hillsborough or Orange County.
As a Judge, new to criminal matters, I’ve studied and poured over the advance sheets, and tried to keep up with every single reported case, so I understand better, not only the statutory provisions, but their applicability and the way in which they’re construed by trial courts and appellate courts. And if this were Dade County, it would not surprise me to see a sixty year sentence, for what Mr. Robinson has done.
But we have a different community here, we are — we live more, I guess, closer to each other and see each other on a daily basis and relate to each other in a community. ...
I think, in trying to weigh and balance, I don’t see that there’s any mitigating circumstances that would be warranted by any displays of remorse, because that has to be in a context of an isolated incident. When you have the prior matters that are noted here, and you have these two serious charges, and I would note that one of the previous charges, trafficking in cocaine, that was a felony of the first-degree. And if I was arrested for trafficking in cocaine and told by my attorney that I would face thirty years, I think that would be all the isolated circumstance I would need to fly right. But in your case, it wasn’t, it just wasn’t.
Since your arrest, well, since the incident for three years, you’ve not committed any crimes. The sheriff has indicated by the way he’s administered his jail, and the way he’s handled you, that he is confident in your behavior when you’re released. When you’re on work release, he’s indicated that he trusts that you will comply with the law, and not do anything to embarrass him.... He’s got to be awfully confident in you, and feel like you are deserving of this opportunity, this chance.
You did step forward and candidly acknowledge your guilt and take responsibility for that by taking an open plea without any bargain, or any conditions. And I think that shows, together with other things I've noted, that you’re at a point in your life when you want to turn things around. You want to go down a different path, and you want to take responsibility for your actions and accept the consequences.
The Court, in trying to weigh all these different factors, believes that — and I’ve kind of backed myself into what I’m about to say, so I’ll try to explain what I’m doing. But in order to deal with and avoid any appellate issues on the Blockburger[ ] issues or the McCloud[ ] issues, I’m in my mind, mathematically, I’m treating the — I’m accepting [defense counsel’s] argument on that point.[] And that would reduce the minimum sentence permissible, to 39.75 months, based on my math. Because, if you take away that 28 points, for the other felony in the first-degree charge, then that would be — that would bring you down, when you take 75% to 39.75. That is approximately 3.3 years.
Mr. Robinson has been in jail for two years. If his case had been tried ■ promptly, and I don’t ascribe any fault or circumstance to it not being resolved sooner. Obviously, with discovery, with requests for continuances, with the change in prosecutor, with the Court’s own docket and own calendar issues that contribute to these matters, we are where we are. And we are resolving things as quickly as we can, but nevertheless, Mr. Robinson has kind of been in limbo. Normally, limbo’s for innocent souls, but we’ll put you in limbo for the sake of discussion. For about two years, and with the gain time of 15%, that would be about 2.3 years.

This appeal followed.

Analysis

Under the CPC, the lowest permissible sentence calculated in the offender’s score-sheet is “the minimum sentence that may be imposed by the trial court, absent a valid reason for departure.” § 921.0024(2), Fla. Stat. (2011); see also § 921.00265(1), Fla. Stat. (2011) (“A departure sentence is prohibited unless there are mitigating circumstances or factors present as provided in s. 921.0026 which would reasonably justify a departure.”). The trial court “may impose a departure below the lowest permissible sentence based upon circumstances or factors that reasonably justify the mitigation of the sentence in accordance with s. 921.0026.” § 921.002(3), Fla. Stat. (2011). The mitigating factors and circumstances that may be considered by the trial court in determining whether to impose a downward departure sentence “include, but are not limited to” those listed in section 921.0026(2). § 921.0026(1), Fla. Stat. (2011); see also State v. Henderson, 108 So.3d 1137, 1140 (Fla. 5th DCA 2013) (“The trial court can impose a downward departure sentence for reasons not delineated in section 921.0026(2), so long as the reason given is supported by competent, substantial evidence and is not otherwise prohibited.”); McCorvey v. State, 872 So.2d 395, 396 (Fla. 1st DCA 2004) (explaining that “the statutory mitigating circumstances are not exclusive”).

A trial court’s decision to depart from the lowest permissible sentence is a two-step process: the trial court must first determine whether it can depart (step one) and then it must determine whether it should depart (step two). See Banks v. State, 732 So.2d 1065, 1067-68 (Fla.1999). In step one, the trial court must determine whether there is a valid legal ground for departure and adequate factual support for that ground. Id. at 1067. In step two, the trial court must determine whether a downward departure is the best sentencing option for the defendant. Id. at 1068.

Here, the State contends that the trial court erred in step one because the non-statutory grounds relied on by the court for Robinson’s downward departure sentence are not legally valid. We agree for the reasons that follow.

the trial court’s observation that the disposition of criminal cases is handled differently in Hamilton County than in other areas of the state is not a legally valid reason for a downward depar-deparThe CPC is a general law that applies uniformly across the state irrespec-irrespecof the nature and size of the communi-communiin which the crime was committed. See § 921.002, Fla. Stat. (2011). Moreover, under the rationale expressed by the trial court, downward departure sentences could become the norm rather than the exception in Hamilton County and similar locales. Cf. State v. Thompkins, 113 So.3d 95, 100 (Fla. 5th DCA 2013) (reversing downward departure sentence based upon trial court’s observation that the crime was based upon “anger and stupidity” because those terms are not part of the lexicon of the CPC, and explaining that “if trial courts are permitted to impose sentences below the minimum guideline range based on their perception that a crime was committed out of anger and stupidity, it would be difficult to find many cases that would not qualify for a departure sentence, thus making departure the rule rather than the exception”).

[4] Robinson’s lack of criminal activity since his arrest for the charged offenses is not a legally valid reason for departure. State v. Stephenson, 973 So.2d 1259, 1264-65 (Fla. 5th DCA 2008) (“That a defendant refrains from criminal activity for a short time is an insufficient reason for a downward departure.”); see also State v. Geoghagan, 27 So.3d 111, 114 (Fla. 1st DCA 2009); State v. Nathan, 632 So.2d 127, 128 (Fla. 1st DCA 1994). Moreover, to the extent the trial court’s statements concerning the sheriffs “confidence” in Robinson were intended to be findings that Robinson is rehabilitated and poses no fu-futhreat or danger to society, there is no competent substantial evidence to sup-supsuch findings.

[5] Robinson’s admission of guilt and entry of an open plea is not a legally valid reason for departure. See Geoghagan, 27 So.3d at 113. A defen-defenplea only provides justification for downward departure when there has been a “legitimate, uncoerced plea bargain” with the State. Id.; see also § 921.0026(2)(a), Fla. Stat. (2011). No such plea bargain existed in this case.

Fourth, the potential double jeopardy “issues” referenced by the trial court are unfounded and do not provide a legally valid basis for the downward departure even if (as the trial court and the parties appear to assume) the two charges against Robinson are based upon the possession and sale of the same cocaine. See McCloud, 577 So.2d at 939-40 (holding that double jeopardy does not prohibit dual convictions for possession and sale of the same quantum cocaine); McMullen v. State, 876 So.2d 589, 590 (Fla. 5th DCA 2004) (holding that double jeopardy does not preclude convictions for both sale and possession of the same cocaine within 1,000 feet of a church); see also Thomas v. State, 61 So.3d 1157, 1158 (Fla. 1st DCA 2011) (holding that double jeopardy does not preclude convictions for both sale and possession of the same cocaine within 1,000 feet of a school).

Finally, contrary to Robinson’s tipsy coachman argument on appeal, the downward departure cannot be justified under State v. Steadman, 827 So.2d 1022 (Fla. 3d DCA 2002), because there is no evidence of “sentence manipulation” in this case. Indeed, unlike Steadman which involved a sting operation that continued for over a month for no legitimate reason except to enhance the defendant’s sentencing exposure, id. at 1025, this case involved a single drug sale. Moreover, unlike Steadman, the county jail sentence imposed by the trial court in this case was well below the 39.75 month prison sentence that Robinson would have been subject to if he had only been charged with count 1. See id. at 1025-26 (“We emphasize that our holding is predicated on the fact that the sentence imposed did not go below what Steadman would have received in the absence of the sentence manipulation.”).

Conclusion

In sum, for the reasons stated above, we reverse Robinson’s downward departure sentence and remand for resentencing. See Jackson v. State, 64 So.3d 90, 93 (Fla.2011).

REVERSED and REMANDED for re-sentencing.

RADOVANO, J., concurs.

SWANSON, J., concurs with opinion.

SWANSON, J.,

concurring.

I concur in the decision to reverse the trial court’s downward departure sentence and to remand for resentencing. The trial court’s oral reasons for departing from the lowest permissible sentence were either legally invalid or not based on competent and substantial evidence in the record, as Judge Wetherell’s opinion explains. I write to emphasize that on remand the law does not preclude the trial court from imposing a downward departure sentence if it provides a legally valid basis to do so which is supported by the record. As the Florida Supreme Court ruled in Jackson v. State, 64 So.3d 90 (Fla.2011):

Based on our reading of the legislative scheme, nothing within the [Criminal Punishment Code] precludes the imposition of a downward departure sentence on resentencing following remand. To be sure, if a trial court on remand resen-tences a defendant to a downward departure sentence, the trial court must ensure it comports with the principles and criteria prescribed by the Code. However, an appellate court should not preclude a trial court from resentencing a defendant to a downward departure if such a departure is supported by valid grounds.

Id. at 93.

      . Robinson was also charged with violating his probation in a 2006 cocaine trafficking case based upon these new law offenses. The record does not contain an order disposing of the probation violation, but Robinson’s counsel represented at the sentencing hearing that the parties "reached a resolution to basically just say his probation was over” because there was apparently an issue as to whether Robinson’s probation had been terminated.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed, 306 (1932).

      . State.v. McCloud, 577 So.2d 939 (Fla. 1991).

      . Earlier in the sentencing hearing, defense counsel argued that the 28 points for the secondary offense of possession with the intent to sell should be removed from Robinson’s scoresheet because it would violate double jeopardy to punish him for both the possession and the sale of the same cocaine. The trial judge correctly rejected that argument based upon McCloud and ruled that "the scoresheet is correct, as filed, based on the information to which Mr. Robinson pled.” The judge reaffirmed that ruling at the conclusion of the sentencing hearing and explained that he had only conceptually deducted the 28 points in his mind in order to "kind of back into what [he] think[s] works.”

      . The affidavit in support of the arrest warrant, which provided the factual basis for the plea, suggests that the two charges against Robinson were not necessarily based upon the same cocaine. The affidavit explains that Robinson "possessed a cigar bag [sic] which appeared to be full of small bags of crack cocaine and he retrieved $50 of suspected crack from the box and sold it to the CS [confidential source]. He then asked CS if they wanted to buy a full cookie.” Thus, it appears that count 1 (sale of cocaine) may have been based upon the $50 of crack cocaine sold to the confidential source and count 2 (possession of cocaine with the intent to sell) may have been based upon the other small bags of crack cocaine in the cigar box.

      . Just recently, in Bryant v. State, 148 So.3d 1251, 39 Fla. L. Weekly S591 (Fla. Oct. 9, 2014), the Florida Supreme Court described Jackson as being a “narrowly tailored decision” limited to instances where the trial court imposes a downward departure sentence under the Criminal Punishment Code, which does not contemplate upward departure sentences because, generally, the statutory maximum sentence is the highest possible sentence for any crime. 148 So.3d at 1257, 39 Fla. L. Weekly at S593. In Bryant, however, the supreme court reviewed the propriety of an upward departure sentence sanctioned by section 775.082(10), Florida Statutes, but which was imposed by the trial court without the court’s making any written findings to support the upward departure. In such a case, the supreme court ruled its earlier decisions in Pope v. State, 561 So.2d 554 (Fla. 1990), and Shull v. Dugger, 515 So.2d 748 (Fla.1987), still applied to preclude the trial court, oh remand, from again imposing a departure sentence.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FLORIDA HOSPITAL ORLANDO, Appellant, v. STATE of Florida, Agency for Health Care Administration, Appellee.
    No. 1D14-178.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2014.
    John D. Buchanan, Jr. and Joseph V. Gardner of Henry, Buchanan, Hudson, Sú-ber, & Carter, P.A., Tallahassee, for Appellant.
    Tracy Lee George, Assistant General Counsel, and Cynthia L. Hain, Assistant General Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   PER CURIAM.

This appeal arises out of a Medicaid integrity audit of Florida Hospital Orlando’s (“Hospital”) inpatient services claims. As a result of the audit, the Agency for Health Care Administration (“AHCA”) determined it had reimbursed the Hospital for services submitted to Medicaid which were not “medically necessary.” See § 409.913(l)(d), Fla. Stat. (2013). After a hearing, AHCA issued a Final Order adopting the administrative law judge’s findings of fact, conclusions of law, and recommendation that the Hospital repay certain overpayments, as well as a small fine and costs.

On appeal, the Hospital asserts that AHCA and its auditor unlawfully reviewed entire patient files to determine whether each patients’ inpatient admission was a “medical necessity,” without limiting -the audit to just the information that was available to the Hospital at the time that the patient was admitted. The Hospital asserts that it is unlawful and unfair for AHCA’s auditors to deny reimbursements based on hindsight analyses of entire patient files, which give greater and better information than was available to the Hospital’s doctors when they made the real-time decisions to admit their patients to the hospital.

The Hospital is correct about how “medical necessity” must be determined for purposes of section 409.913(l)(d). The statute is perfectly clear that “[djetermina-tions of medical necessity ... must be based upon information available at the time the goods or services are provided.” § 409.913(l)(d), Fla. Stat. (emphasis added). It gives no room for evaluating medical necessity determinations post hoc, using later-available information “from a post-discharge standpoint,” as the Hospital alleges here.

Nevertheless, with respect to the fourteen subject patients at issue in this appeal, the Hospital has not shown that AHCA and its auditor relied on hindsight information in penalizing the Hospital’s admission decisions. Rather, the record supports the administrative law judge’s finding adopted by AHCA that the claims were “described and evaluated based upon the medical documentation available to the treating physician at the time the services were rendered.” And so we must affirm.

AFFIRMED.

WOLF, ROBERTS, and OSTERHAUS, JJ., concur.


author: CLARK, J.

text:
    Derek Jamal FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0496.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2014.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Beware what you ask for. Here, defense counsel requested a jury instruction on a lesser included charge. Mr. Flowers was then convicted on that lesser included charge, and Mr. Flowers now seeks to be released without the possibility of retrial because the lesser included charge his attorney requested was time-barred. The invited error doctrine precludes such a “heads I win, tails you lose” game.

The State initially charged Mr. Flowers with robbery, aggravated fleeing, and kidnapping. Defense counsel successfully argued that the robbery and aggravated fleeing charges were time-barred. The kidnapping charge survived; and the State proceeded to trial on the kidnapping charge. At the charge conference, defense counsel requested a jury instruction on false imprisonment — a lesser included charge of kidnapping. The court obliged. And the jury returned a verdict of guilty as to false imprisonment.

After the verdict was in, the jury dismissed, and the court adjourned, the court recalled both attorneys to the courthouse to discuss a potential statute of limitations issue. It was there the court raised the issue of whether the conviction for false imprisonment, a third-degree felony, was time-barred, as were the other counts the court had previously dismissed. See §§ 787.02(2), 775.17(2)(b), Fla. Stat. (mandating commencement of prosecution for third-degree felony within three years). Ultimately, the court determined Mr. Flowers and his attorney had sought the instruction and reaped the benefit of the instruction; they could no longer claim error. We agree.

The invited error doctrine is succinct: “[A] party cannot.successfully complain about an error, for which he or she is responsible or of rulings that he or she invited the court to make.” Anderson v. State, 93 So.3d 1201, 1203 (Fla. 1st DCA 2012). Put another way, “a party may not make or invite error at trial and then take advantage of the error on appeal.” Id. at 1206. As applied here, “counsel should not be allowed to sandbag the trial judge by requesting and approving an instruction they know or should know will result in an automatic reversal, if given.” Weber v. State, 602 So.2d 1316, 1319 (Fla. 5th DCA 1992).

We do not suggest defense counsel here nefariously or perniciously sought to dupe the court. But given his successful use of the statute of limitations defense against the two other charges and his admission it was his (sound) trial strategy to instruct the jury on the lesser included charge, counsel cannot now reap the benefit of crying foul upon the jury obliging his request.

The Fifth District addressed a very similar scenario. See id. at 1317-18. There, a defendant was indicted for murder, but found guilty of the lesser included offense of manslaughter. Id. at 1317. During trial, “the prosecutor, defense counsel and judge discussed” instructing the jury on the lesser included offenses of murder. Id. “Defense counsel said ‘give it.’ ” Id. And in closing, defense counsel argued the lesser included offenses. Id. Throughout, there were no objections. Id. Nor did counsel object after return of the lesser included verdict. Id. A week later, counsel raised the issue by way of motion for arrest of judgment. Id. at 1318. The trial court found the issue was “waived.” Id. at 1317.

On appeal, the Fifth District affirmed the defendant’s conviction for the lesser included charge. Id. at 1318-19. The court explained that “if a defendant requests a time-barred lesser included offense instruction, and is convicted on such charge, he or she may be estopped from later challenging the conviction on statute of limitations grounds.” Id. at 1318. And where a defendant takes “affirmative acts either in seeking or acquiescing in the erroneous instruction,” a failure to object precludes the error from being fundamental. Id. (citing Ray v. State, 403 So.2d 956 (Fla.1981)). The court found Weber’s counsel accepted and approved the lesser included instruction in Weber’s presence, argued it to the jury, and failed to object to the instruction or otherwise apprise the court of a potential issue. Id. at 1317.

Here, Mr. Flowers and his counsel were well aware of the statute of limitations; they had successfully obtained dismissals of the other two counts for statute of limitations reasons. Despite this knowledge, and in what counsel admitted to be his trial strategy, counsel successfully sought to have the jury instructed on a time-barred, lesser included offense. This occurred with Mr. Flowers present. And counsel not only affirmatively sought the instruction, but he failed to object at any point during the proceedings — at the charge conference, prior to instructing the jury, during the instructions, after the instructions, during jury deliberations, and upon return of the verdict. In fact, it was the court who saw a potential issue and asked counsel to return after the verdict was in, the jury dismissed, and court adjourned.

In short, counsel affirmatively requested the court instruct the jury on a lesser included offense he, at minimum, should have known was time barred as part of (sound) trial strategy. The jury agreed and convicted Mr. Flowers on the lesser included offense. Mr. Flowers knowingly sought the instruction, the jury used the instruction, and he now takes issue with the instruction. This falls squarely within the invited error doctrine. The sandbagging and windfall in seeking instruction on a crime for which it would be illegal to convict — without the ability of retrial because of double jeopardy issues — is exactly what invited error seeks to avoid. We join the Fifth District in finding the invited error doctrine applicable under this factual scenario.

Appellant’s judgment and sentence are AFFIRMED.

PADOVANO and THOMAS, JJ., concur.

      . Mr. Flowers raised one other issue. We affirm without comment.


text:
    Alfred B. COOK, III and Marjorie Ann Drumm, Appellants, v. FERNANDINA SEAFOOD COMPANY, A Florida Corporation, Appellee.
    No. 1D14-4349.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2014.
    Michael S. Mullin and Cristine M. Russell of Rogers Towers, P.A., Jacksonville, for Appellants.
    Harlan L. Paul of Paul, Elkind & Branz, P.A., DeLand, for Appellee.
   PER CURIAM.

The Court has determined that the Amended Partial Pinal Judgment is not a final order because it fails to fully resolve the claim for specific performance and contemplates the exercise of further judicial labor. Accordingly, the appeal is dismissed. The Court declines to relinquish jurisdiction as requested by the appellants in their response to the Court’s October 1, 2014, order. See Demont v. Demont, 24 So.3d 699 (Fla. 1st DCA 2009) (dismissing appeal rather than allowing lower court to enter a final order where an indeterminate amount of judicial labor remained to be done before a final order could be entered).

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


author: HUGHES, J.,

text:
    STATE of Louisiana v. Panagiotis I. KONDYLIS.
    No. 2014-K-0196.
    Supreme Court of Louisiana.
    Oct. 3, 2014.
   |, The state filed a habitual offender bill of information pursuant to La.R.S. 15:529.1 alleging nine predicate felonies under five docket numbers after the defendant was found guilty by a jury of distribution of cocaine, R.S. 40:967, on August 7, 2012. Defendant admitted the allegations in the habitual offender bill of information and was senténced on February 4, 2013, to serve 35 years imprisonment at hard labor without benefit of probation or suspension of sentence. On direct appeal, the court of appeal found as an error patent that this sentence was illegally lenient. Because the present offense is a violation of the Uniform Controlled Dangerous Substance Law punishable by imprisonment for 10 years or more, and two of defendant’s prior felonies, extortion and racketeering, are crimes punishable by imprisonment for< 12 years or more, the court of appeal found that the Habitual Offender Law, La.R.S. 15:529.1(A)(l)(c)(ii) (before the 2010 amendment), required a sentence of life imprisonment. Therefore, the court of appeal affirmed defendant’s conviction but amended his sentence accordingly, from 35 years imprisonment at hard labor without benefit of probation or suspension of sentence, to life imprisonment at |2hard labor without benefit of parole, probation, or suspension of sentence. State v. Kondylis, 13-0683 (La.App. 1 Cir. 12/27/13), 2013 WL 6858346.

Defendant seeks review in this Court, contending in part that the court of appeal erred in amending his sentence because the sentence had been negotiated and imposed pursuant to an agreement with the state and the trial court. The record contains the following exchange at the habitual offender adjudication hearing:

The Court: It’s my understanding through counsel today that [defendant] wishes to admit to the allegations of the Multiple Offender Bill of Information, is that correct, Mr. Yazbeck?
Mr. Yazbeck [defense counsel]: Yes, Your Honor, subject to discussions that Tim had with the Court and the District Attorney.

The subject of those discussions is not further revealed in the record. Defense counsel, however, presented no argument regarding what sentence would be appropriate and neither the state nor defense counsel made any objection after the sentence was imposed. The present record thus lends credibility to defendant’s contention that an agreement of some kind had been reached.

The present record, however, is not sufficient to answer the question. We therefore grant defendant’s application in part to vacate the amendment of sentence made by the court of appeal and remand this case to the trial court for purposes of determining whether the 35-year term of imprisonment at hard labor without benefit of probation or suspension of sentence imposed by the trial court came as a result of an agreement reached by defense counsel, the prosecutor, and the court. We note that under the recently enacted provisions of La.C.Cr.P. art. 890.1, 2012 La. Acts 160, which went into effect on May 17, 2012, or before defendant was convicted in August 2012 and sentenced in February 2013, a trial court now possesses the authority to depart from the mandatory terms of imprisonment and conditions placed on those sentences otherwise specified by [¡¡law by agreement of all parties. If the trial court finds that all parties reached an'agreement on the 35-year sentence, the court shall issue a new commitment order specifying that sentence was imposed under the authority of La.C.Cr.P. art. 890.1. See La.C.Cr.P. art. 890.1(E). If no such agreement was reached among all parties, the court shall vacate defendant’s sentence and resentence him to the mandatory term of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, as otherwise specified by La.R.S. 15:529.1(A)(l)(c)(ii) (now R.S. 15:529.1(A)(4)(b)). In all other respects, the application is denied.

HUGHES, J., concurs in part and dissents in part.

HUGHES, J.,

concurs in part and dissents in part.

hi do not object to the remand ordered by the court. However, even if no plea bargain is found, I do not believe that the sentence can be constitutionally increased upon the defendant’s appeal where the state did not object to or appeal the sentence.


author: JOHNSON, Chief Justice.

text:
    STATE of Louisiana v. Maurice Addison HAWLEY.
    No. 2014-KK-0282.
    Supreme Court of Louisiana.
    Oct. 15, 2014.

      James D. Caldwell, Attorney General, Bossier Parish District Attorney’s Office, John (Schuyler) Marvin, District Attorney, Robert Randall Smith, Assistant District Attorney, for Applicant.
    Jason Wayne Wattman, Shreveport, LA, for Respondent.
   JOHNSON, Chief Justice.

11 Maurice Addison Hawley was charged with driving under the influence after a breath test demonstrated his blood alcohol concentration was above the legal limit. The test was conducted using an Intoxilyzer 5000 breathalyzer. We granted this writ application to determine whether the state’s introduction into evidence of the certification form attesting to the inspection and maintenance of the Intoxilyzer 5000 machine, and the certification form attesting to the qualifications of the maintenance technician who inspected, maintained and certified the machine, without producing the testimony of the technician, violated Mr. Hawley’s Sixth Amendment right to confrontation. For the following reasons, we hold these forms are nontesti-monial, and thus they are not subject to Confrontation Clause requirements. We therefore reverse the ruling of the court of appeal and reinstate Mr. Hawley’s conviction.

FACTS AND PROCEDURAL HISTORY

On February 19, 2012, Mr. Hawley was stopped by a Louisiana State Trooper for improper lane use and speeding. After initial investigation, he was arrested for DUI. Mr. Hawley agreed to provide a breath sample for chemical analysis, which was conducted using an Intoxilyzer 5000 breathalyzer machine. The test showed a blood 12alcohol concentration of .144, a level above the statutory presumption of intoxication. Mr. Hawley was charged by Bill of Information with driving while under the influence, first offense, in violation of La. R.S. 14:98. This statute defines the crime of operating a vehicle while intoxicated as operating a motor vehicle when the operator’s blood alcohol concentration is .08 or more. For purposes of proving Mr. Haw-ley’s blood alcohol concentration exceeded this statutory limit, the state intended to introduce three exhibits at Mr. Hawley’s trial:

S-l: Intoxilyzer 5000 “Machine Re-certification Form”
S-2: “Maintenance Technician Qualification Form”
S-3: Intoxilyzer 5000 breath test printout

Exhibit S-l, “Certificate of Inspection Machine Recertification Form,” states:

This is to certify that Instrument # 68-012946 Intoxilyzer 5000 is an approved instrument for use in Breath-alcohol Testing and is certified to be in proper functioning condition on this 7th day of February, 2012.
This certificate is prima facie evidence of the proper • functioning of the instrument.
The known alcohol standard used in calibration of the instrument was tested and found to be within the acceptable tolerance range of 4- ,010g% according to rules and regulations promulgated pursuant to LRS 32:663.
Known value .100
Instrument read .097

The certificate is signed by Cory D. Thompson, Breath Analysis Instructor Specialist, Louisiana State Police Applied Technology Unit, Certified Permit No. 8. Exhibit S-2 includes the “Intoxilyzer 5000 Certification Card” for Mr. Thompson under Permit No. 0008, and states that “this individual has met all requirements for qualification to perform maintenance and inspection on instruments indicated on the true copy of individual’s permit issued by the Department of Public Safety....” Exhibit S-3 is the printout from the Intoxi-lyzer 5000, reflecting that the analysis of Mr. Hawley’s breath | ¡¡sample showed a blood alcohol concentration of .144.

Prior to trial, Mr. Hawley filed a “Notice” objecting to all hearsay evidence, including “machine certification forms,” “machine recertification forms,” and any forms or certificates “of any kind which are discussed or identified in LSA-R.S. 15:499 through LSA-R.S. 15:501,” Louisiana’s notice and demand statutes. The Notice also served to advise that Mr. Haw-ley would object if the state attempted to introduce any such evidence if he was not allowed to exercise his constitutional right to confront and cross examine the person who made the statements contained in such documents.

On the date of trial, the court treated Mr. Hawley’s Notice as a motion in limine seeking to exclude the state’s evidence based on a Confrontation Clause violation. The trial court denied the motion, finding no constitutional violation. Due to this ruling, Mr. Hawley chose to enter a guilty plea pursuant to State v. Crosby, reserving his right to appeal the trial court’s ruling. Mr. Hawley then sought review in the court of appeal.

The court of appeal granted Mr. Hawley’s writ and vacated his conviction. Relying on the United States Supreme Court’s opinion in Melendez-Diaz v. Massachusetts, the court noted that forensic reports/certificates prepared for trial qualify as testimonial statements and are subject to the Confrontation Clause, and therefore found the trial court erred in admitting the documents without the presence of the analyst. The court also noted that Mr. Hawley had timely filed a demand for the 14analyst’s presence, and that notice and demand statutes are permissible under the Confrontation Clause.

The state filed the instant writ application, asserting S-l and S-2 are not testimonial statements requiring an analyst to testify in order to introduce the forms into evidence. We granted the state’s writ application to decide whether introduction of the Intoxilyzer 5000 “Machine Recertifi-cation Form” (S-l) and the “Maintenance Technician Qualification Form” (S-2) into evidence, without requiring the state to produce the testimony of the technician who inspected and certified the machine and prepared the recertification form, violated Mr. Hawley’s constitutional right of confrontation.

DISCUSSION

Because our resolution of this matter requires interpretation of constitutional issues involving the Confrontation Clause of the Sixth Amendment, our review is de novo

La. R.S. 14:98 provides a legal presumption of intoxication if the operator’s blood alcohol concentration is “0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood.” For purposes of establishing this presumption, the state sought to introduce S-l and S-2 into evidence without testimony. These documents were formulated pursuant to certain statutory requirements.

In order for a chemical analysis of a person’s breath to be considered valid, it |smust have been performed according to methods approved and promulgated by the Department of Public Safety and Corrections (“Department”). The rules promulgated by the Department include operator qualifications, instructor qualifications, maintenance technician qualifications, mandatory maintenance and repair schedule, approved manufacturers of simulator solutions, and procedures for using the Intoxilyzer 5000.

With respect to inspection of the Intozi-lyzer 5000 and preparation of the recertifi-cation form, the rules provide:

At least once every four months [after initial approval] for the Intoxilyzer 5000, ... each individual instrument shall be inspected, checked, and certified by the ... breath analysis instructor specialist ... of the Applied Technology Unit and a recertification form shall be maintained in the Applied Technology Unit. A copy of this certificate may be filed with clerk of the applicable court in the respective parish in which each device is used for blood/breath testing, and this copy shall be prima facie evidence as to the proper working order of the instrument. The inspecting ... breath analysis instructor specialist's] ... permit number shall also be affixed to this certificate.

In accordance with La. R.S. 32:663, the Department also issued qualifications required of individuals to perform maintenance and inspection of the Intoxilyzer 5000. After an individual has qualified based on the stated standards, he is certified to perform maintenance and inspection by the Department and issued a permit stating such. This permit serves as prima facie evidence of the individual’s qualification to perform such maintenance.

| (According to La. R.S. 32:662.1, the “Machine Recertification Form” (S-l) and the “Maintenance Technician Qualification Form” (S-2), both made in accordance with the provisions of La. R.S. 32:663, are admissible as prima facie evidence. The issue we must resolve is whether the admission of S-l and S-2 into evidence without requiring the state to introduce the testimony of the technician who inspected and certified the machine, violated Mr. Hawley’s Sixth Amendment right to confront the technician. After reviewing the record and considering the law and arguments of the parties, we hold that the “Machine Recertification Form” (S-l) and the “Maintenance Technician Qualification Form” (S-2) are nontestimo-nial and therefore introduction of these documents into evidence without testimony does not invoke Confrontation Clause requirements.

The defendant makes an argument based on the Sixth Amendment to the United States Constitution which provides, in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” That portion of the Sixth Amendment is commonly referred to as the Confrontation Clause.

The Supreme Court’s interpretation of the Confrontation Clause has continuously evolved. In Ohio v. Roberts, the Court held that out-of-court statements by witnesses who are unable to testify can be admitted into evidence if a court determines that the evidence falls within a hearsay exception or has [./‘particularized guarantees of trustworthiness.” Almost twenty-five years later, the Court shifted its inquiry from whether the evidence is “reliable” to whether the evidence is “testimonial.” In Crawford v. Washington> the Court held that prosecutors could not use the “testimonial statements” of a -witness who did not appear at trial unless he was unavailable to testify and the defendant had a prior opportunity for cross-examination. The Court explained:

The text of the Confrontation Clause reflects this focus. It applies to “witnesses” against the accused-in other words, those who “bear testimony.” “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern -with a specific type of out-of-court statement.

The Court described a “core class” of testimonial statements covered by the Confrontation Clause:

Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecuto-rially; extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

But the Court specifically declined to “spell out a comprehensive definition of ‘testimonial.’ ” Subsequent Supreme Court cases have served to further clarify 18whether evidence is “testimonial.”

In Davis v. Washington, the Court considered when statements made to law enforcement personnel during a 911 call or at a crime scene are “testimonial.” The Court focused on the “primary purpose” of the interrogation and held:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.,

In Melendez-Diaz, the Court again focused on “purpose” to find “certificates of analysis” prepared by forensic analysts identifying a substance found in defendant’s possession as cocaine, and submitted into evidence at defendant’s drug trafficking trial, to be testimonial. The certificates were sworn to before a notary public by analysts at the State Laboratory Institute, as required under Massachusetts law. The Court explained:

The documents at issue here, while denominated by Massachusetts law “certificates,” are quite plainly affidavits: “declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” They are incontrovertibly a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine — the precise testimony the analysts would be expected to provide if called at trial. The “certificates” are functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination.”

IflMore recently, in Bullcoming v. New Mexico, the Court reiterated that an analyst’s certification prepared in connection with a criminal investigation or prosecution is testimonial and therefore -within the compass of the Confrontation Clause. The specific issue considered in Bullcom-ing was whether such a certification could be introduced into evidence through the testimony of a scientist “who did not sign the certification or perform or observe the test reported in the certification.” The Court held that the “surrogate testimony” did not meet the requirements of the Confrontation Clause.

Considering this Supreme Court jurisprudence, we start our analysis by stating that only “testimonial” statements cause a declarant to be a witness within the meaning of the Confrontation Clause. Accordingly, the crucial question we must answer is whether the statements contained within S-l and S-2 are “testimonial” in nature.

In finding these certification forms to be “testimonial,” the court of appeal cited Melendez-Diaz for the proposition that “forensic reports/certificates prepared for trial qualify as testimonial statements and are subject to the Confrontation Clause.” We find the court’s reliance on Melendez-Diaz to be misplaced. The court of appeal’s application of Melendez-Diaz to the facts of this case indicates an overly-broad reading of its holding. We are not bound by the Court’s holding in Melendez-Diaz because, unlike the certificates in Melendez-Diaz, or those in Bullcoming, S-l and S-2 were not prepared for the primary purpose of providing evidence in a criminal case. In Melendez-Diaz, the drug analysis certificates provided direct proof of an element 110of the defendant’s drug trafficking offense. Similarly, Bullcoming involved a DWI ease and the forensic laboratory report certified that defendant’s blood-alcohol concentration was above the legal threshold. The information contained in S-l and S-2 do not provide any information regarding Mr. Hawley’s blood alcohol concentration, nor otherwise establish an element of the offense of driving while under the influence.

S-l was prepared by Cory Thompson, the technician who inspected and maintained the Intoxilyzer 5000 used to test Mr. Hawley’s breath sample. S-l merely certifies the reliability of the Intoxilyzer 5000 and was prepared on February 7, 2012, twelve days before Mr. Hawley was arrested. The form reflects objective facts that were observed by the technician at the time of their recording in order to establish that the Intoxilyzer 5000 would produce accurate results, rather than to prove that Mr. Hawley was intoxicated. Thus, the machine recertification form does not directly inculpate Mr. Hawley or prove an essential element of the charges against him. Similarly, S-2 simply states that Cory Thompson was certified by the Department of Public Safety and Corrections to perform maintenance and inspect the Intoxilyzer 5000. Nothing in S-2 proves an element of Mr. Hawley’s DUI offense.

Louisiana law requires that the Intoxi-lyzer 5000 be “inspected, checked, and certified” by a qualified technician at least once every four months and that a recerti-fication form be maintained. Thus, when S-l was created, its primary purpose was to establish that the Intoxilyzer 5000 was in compliance with administrative regulations in effect at the time. S-2 was created to establish the technician was qualified pursuant to regulations. Thus, the primary purpose of S-l and S-2 was not to determine Mr. Hawley’s blood alcohol concentration, but rather to show strict | n compliance with the promulgated procedures. The certificates served a purpose at the time they were created, regardless of whether they were utilized in a future prosecution. To require the testimony of an individual as far removed from the prosecution as the inspector and calibrator of the Intoxilyzer would dramatically expand the holding of Melendez-Diaz. The majority in Melendez-Diaz noted this distinction:

“Contrary to the dissent’s suggestion, ... we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the ... accuracy of the testing device, must appear in person as part of the prosecution’s case.... Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.”

In sum, we hold that the machine recer-tification form (S-l) and the maintenance technician qualification form (S-2) do not fall within the “core class” of testimonial statements covered by the Confrontation Clause as described in Crawford. While certificates of drug analysis were offered as direct proof of an element of the offense charged in Melendez-Diaz, and reports certifying proof of defendant’s blood alcohol concentration were offered as proof of an element of the offense in Bullcoming, S-l and S-2 do not offer direct proof of Mr. Hawley’s guilt, and only serve to establish the admissibility or credibility of the evidence of his guilt, the Intoxilyzer 5000 breath test printout (S — B). The state intended to introduce S-B through the testimony of the state trooper who conducted Mr. Hawley’s breath test.

Finally, we address Mr. Hawley’s assertion that the admission of the certifí-cates into evidence without requiring the state to produce the technician’s testimony violated the protections established in Louisiana’s notice and demand 112statutes. Through a series of statutes, the Louisiana Legislature has provided a I ^procedure for the introduction into evidence of certain certificates prepared by criminalistics laboratories, and further provided that these certificates shall serve “as prima facie proof of the facts shown thereon, and as prima facie proof of proper custody of the physical evidence listed thereon from time of delivery of said evidence to the facility until its removal therefrom.” However, the law also provides a “notice and demand” procedure allowing a defendant to file a written demand “that the person making the examination or analysis testify.” If such a demand is filed, the certificate shall not constitute prima facie proof of the facts thereon. Although Mr. Hawley’s pre-trial “Notice” asserted such a demand, it does not alter our opinion. These statutes clearly refer to certificates from criminalis-tics laboratories conducting actual analysis of evidence, such as those considered in Melendez-Diaz and Bullcoming. The purpose of such statutes is to require the defendant to put the state on notice that he is asserting his Confrontation Clause rights. In reaching its decision in Melendez-Diaz, the Supreme Court recognized that many States “have already adopted the constitutional rule” announced in that case, “while many others permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after 114receiving notice of the prosecution’s intent to use a forensic analyst’s report.” Clearly, notice and demand statutes serve a purpose only when the Confrontation Clause is invoked. Because we have already determined that S-l and S-2 are nontestimonial and Mr. Hawley’s Sixth Amendment rights were not violated, the state had no duty to produce the testimony of the person who prepared the machine recertification form. The fact that Mr. Hawley filed a written demand for the technician to testify is irrelevant.

CONCLUSION

We find that the machine recertification form (S-l) and the technician qualification form (S-2) are not testimonial statements and therefore are not subject to Confrontation Clause requirements. Thus, the trial court did not violate Mr. Hawley’s Sixth Amendment rights by ruling the certificates could be admitted into evidence without testimony. For this reason, we find the court of appeal erred in applying Melendez-Diaz and vacating Mr. Hawley’s conviction. We hereby reverse the ruling of the court of appeal and reinstate defendant’s conviction.

DECREE

REVERSED AND RENDERED.

      . La. R.S. 14:98(A)(l)(b).

      . This pleading is fully entitled: “Defendant’s Notice of Objection to all Hearsay, Including Hearsay contained in Certificates and Other Documents; Defendant’s Notice that he is not Waiving his Right to Confront and Cross Ex-' amine Witnesses and that he will Assert his Right to Confront and Cross Examine all Witnesses.”

      . , 338 So.2d 584 (La. 1976).

      . State v. Hawley, 48,835 (La.App. 2 Cir. 10/10/13) (unpublished).

      . 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314(2009).

      . S-3, the Intoxilyzer 5000 breath test printout, is not at issue in this case. The state acknowledges that S-3 cannot be admitted into evidence without the analyst's testimony. The state asserts the analyst is the state trooper who conducted the test, and he was subpoenaed and available to testify at Mr. Haw-ley’s trial.

      . State v. Hawley, 14-0282 (La.4/11/14), 138 So.3d 611.

      . See State v. Golston, 10-2804 (La.7/1/11), 67 So.3d 452.

      . La. R.S. 14:98(A)(l)(b).

      . La. R.S. 32:663(A)(1).

      . See La. Admin. Code Title 55, Part I, § 501 et seq.

      . La. Admin. Code, Title 55: Part I, § 501(A).

      . See La. Admin. Code, Title 55: Part I, § 507.

      . La. Admin. Code, Title 55: Part I, § 501(B).

      . Id.

      . La R.S. § 32:662.1 provides: In all criminal cases where intoxication is an issue, any certificate or writing made in accordance with the provisions of R.S. 32:663, including but not limited to intoxilyzer instrument re-certification forms, and other certificates or writings made with respect to the chemical analyses of a person’s blood, urine, breath, or other bodily substance, shall be admissible as evidence.

      .We note that the Louisiana Constitution grants defendants a similar right in Article I, § 16 which provides, in part: "An accused is entitled to confront and cross-examine the witnesses against him, to compel the attendance of witnesses, to present a defense, and to testify in his own behalf.”

      . 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

      . Roberts, 448 U.S. at 66, lOOS.Ct. 2531.

      . 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      . Crawford, 541 U.S. at 54, 124 S.Ct. 1354

      . Id. at 51, 124 S.Ct. 1354. (Internal citations omitted).

      . Id. at 51-52, 124 S.Ct. 1354. (Internal citations omitted).

      . Id. at 68, 124 S.Ct. 1354.

      . 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

      . 547 U.S. at 822, 126 S.Ct. 2266. (Emphasis added).

      . Melendez-Diaz, 557 U.S. at 310-11, 129 S.Ct. 2527.

      . Id. at 308, 129 S.Ct. 2527.

      . Id. at 310-11, 129 S.Ct. 2527. (Internal citations omitted).

      . — U.S. —, 131 S.Ct. 2705, 180 L.Ed.2d 610(2011).

      . Bullcoming, 131 S.Ct. at 2713-14.

      . Id. at 2710.

      . Id.

      . Bullcoming, 131 S.Ct. at 2709.

      . La. Admin. Code Title 55, Part I, § 501.

        .Melendez-Diaz, 557 U.S. at 311 n. 1, 129 S.Ct. 2527.

      . The court of appeal also suggested the "notice and demand” statutes were implicated.

      . See La. R.S. 15:499-501. Specifically, La. R.S. 15:499 provides in relevant part:
      A. All criminalistics laboratories established by laws of this state or by laws of the United States, and all coroners, forensic pathologists, and other persons, partnerships, corporations, and other legal entities practicing in fields of knowledge and expertise in the gathering, examination, and analysis of evidence by scientific means are authorized to make proof of examination and analysis of physical evidence by the certificate of the person making the examination or analysis. Such certificate shall list:
      (1) The date and time such evidence was delivered to such facility.
      (2) The name of the person making such delivery, and the person receiving same.
      (3) A brief description of the evidence.
      (4) The type of examination or analysis requested.
      . (5) The name of the person making the examination or analysis.
      (6) The date or dates of the examination or analysis.
      (7) The results of the examination or analysis.
      B. The certificate shall give the name and address of the facility in which the examination or analysis was made, and shall be signed by the person making the examination or analysis.
      C. Criminalistics laboratories are authorized to utilize electronic signatures in order to comply with the provisions of Subsection B of this Section once final review of the certificate of analysis is completed. For purposes of this Section, " electronic signature" shall mean an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
      D.All organizations, entities, or persons issuing certificates as set forth in this Section shall retain and provide upon written request all of the following:
      (1) A description of each analyst's educational background, training, and experience.
      (2) A listing of all accreditations held by the laboratory or individual.
      La. R.S. 15:500 provides: "In all criminal cases and in all cases in juvenile or family courts which are of a criminal nature, and in civil forfeiture proceedings arising from criminal activity, the courts of this state shall receive as evidence any certificate made in accordance with R.S. 15:499 subject to the conditions contained in this Section and R.S. 15:501. The certificate shall be received in evidence as prima facie proof of the facts shown thereon, and as prima facie proof of proper custody of the physical evidence listed thereon from time of delivery of said evidence to the facility until its removal therefrom.” La. R.S. 15:501 provides in relevant part:
      A. The party seeking to introduce a certificate made in accordance with R.S. 15:499 shall, not less than forty-five days prior to the commencement of the trial, give written notice of intent to offer proof by certificate. Such notice shall include a copy of the certificate.
      B. The attorney for the defendant, or the defendant acting in his own defense, if not represented by counsel, may demand that the person making the examination or analysis testify by filing a written demand and serving it upon the district attorney or attorney general seeking to introduce the certificate. If such a demand is made timely as set forth below, the certificate shall not constitute prima facie proof of the facts thereon as set forth in R.S. 15:500.
      C. Demand for the testimony of the person making the examination or analysis shall be filed and served by counsel for the defendant, or by a defendant acting as his own counsel, within thirty days of the receipt of the notice provided for in Subsection A of this Section. The trial court may extend this thirty-day period for good cause shown if such request is made prior to the expiration of the thirty days.
      D. If no request for additional time is made prior to the expiration of the thirty-day period, an extension of time in which to make such a demand may be made only upon a showing of exceptional circumstances. Any allegation that such circumstances exist shall constitute a preliminary plea on the defendant's behalf for the purposes of Louisiana Code of Criminal Procedure Article 580. The demand shall be made in writing and notice shall be served on the district attorney or the attorney general prosecuting the matter. The court shall conduct a contradictory hearing to determine if the extension is warranted.
      E. The filing of a demand by the defendant does not prevent the admission of the certificate or its contents in any other manner otherwise appropriate pursuant to the Louisiana Code of Evidence or its ancillaries.

      . La. R.S. 15:500.

      . La. R.S?15:501(B).

      . Id.

      . Melendez-Diaz, 557 U.S. at 325-26, 129 S.Ct. 2527.


text:
    In re COMMITTEE ON BAR ADMISSIONS CFN-1979.
    No. 2013-OB-2592.
    Supreme Court of Louisiana.
    Oct. 15, 2014.
    Jason Rogers Williams & Associates, LLC, Robert W. Hjortsberg, New Orleans, LA, Tomas E. Alarcon, for Applicant.
    LA Committee on Bar Admissions, Monique Rene Drake, McGlinchey Stafford, PLLC, Larry Feldman, Jr., New Orleans, LA, for Respondent.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

I,The Committee on Bar Admissions (“Committee”) opposed petitioner’s application to sit for the Louisiana Bar Examination based on character and fitness concerns relating to his failure to disclose a DWI arrest on his law school application. We subsequently granted petitioner permission to sit for the bar exam, with the condition that upon his successful completion of the exam, he apply to the court for the appointment of a commissioner to take character and fitness evidence.

Petitioner thereafter successfully passed ‘ the essay portion of the bar exam, and upon his application, we appointed a commissioner to take evidence and report to this court whether petitioner possesses the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana. We also authorized the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation into petitioner’s qualifications to be admitted to the bar.

The commissioner conducted a character and fitness hearing pursuant to Supreme Court Rule XVII, § 9(D)(6). The commissioner received documentary evidence and heard testimony on a variety of issues in addition to those raised by the Committee when petitioner was initially denied permission to sit for the bar exam. These issues included petitioner’s involvement in a hit and run accident in which alcohol was allegedly a factor, a pattern of financial irresponsibility on the part of petitioner, and a lack of candor by petitioner in connection with his application for admission to the Louisiana Bar.

12At the conclusion of the hearing, the commissioner filed his report with this court, recommending admission be denied. Petitioner objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(D)(11).

After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner has failed to meet his burden of proving that he has “good moral character” to be admitted to the Louisiana State Bar Association. See Supreme Court Rule XVII, § 5(E).

Accordingly, it is ordered that the application for admission be and hereby is denied. In accordance with Supreme Court Rule XVII, § 9(D)(13), petitioner may not reapply for admission until two years have passed from the date of this judgment.

ADMISSION DENIED.


author: PER CURIAM. CLARK, J.,

text:
    In re COMMITTEE ON BAR ADMISSIONS CFN-1913.
    No. 2013-OB-2575.
    Supreme Court of Louisiana.
    Oct. 15, 2014.
    Dane S. Ciolino, for Applicant.
    LA Committee on Bar Admissions, Monique Rene Drake, McGlinehey Stafford, PLLC, Larry Feldman, Jr., New Orleans, LA, for Respondent.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

| petitioner successfully passed the essay portion of the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) advised petitioner that it was unable to certify him for admission to the bar on character and fitness grounds relating to his prior criminal history and his failure to fully and accurately disclose his criminal history on both his law school application and his bar application.

Petitioner then applied to this court for admission to the practice of law. We remanded the matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending petitioner be admitted to the practice of law. Neither party objected to this recommendation; however, on its own motion, this court ordered the matter docketed for oral argument.

After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana. Accordingly, it is ordered that the application for admission be and hereby is granted.

ADMISSION GRANTED.

CLARK, Justice, would deny admission and assigns reasons.

CLARK, J.,

dissenting.

hi would deny admission.

Petitioner has a record of criminal conduct, and perhaps more seriously, petitioner has shown a pattern of dishonesty by failing to report his complete criminal history on his law school admission and on his application for admission to the Louisiana Bar.

A license to practice law in Louisiana is a privilege, not a right, and petitioner has shown by his illegal and dishonest conduct that he is not entitled to that privilege. By admitting petitioner to the Louisiana Bar, the Court is lowering the standards demanded of members of the Bar.


text:
    In re Adam Anthony ABDALLA.
    No. 2014-B-2142.
    Supreme Court of Louisiana.
    Oct. 22, 2014.
   ORDER

11 Considering the Joint Petition for Interim Suspension filed by respondent, Adam A. Abdalla, and the Office of Disciplinary Counsel,

IT IS ORDERED that Adam A. Abdal-la, Louisiana Bar Roll number 30370, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

FOR THE COURT:

/s/ Bernette J. Johnson Justice, Supreme Court of Louisiana


text:
    In re Allen A. KRAKE.
    No. 2014-B-1760.
    Supreme Court of Louisiana.
    Oct. 24, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_JjThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Allen A. Krake, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

FORMAL CHARGES

Respondent has been ineligible to practice law since June 19, 2010 for failure to comply with the mandatory continuing legal education requirements. Respondent is also ineligible for failure to pay his bar dues and the disciplinary assessment, and for failure to file a trust account registration statement. Notwithstanding his ineligible status, on September 11, 2012, respondent filed a petition for appointment of an independent administratrix in the matter entitled Succession of Jerry De-Leon Bryant in the 35th Judicial District Court for the Parish of Grant.

In response to the ODC’s inquiry regarding his ineligible status, respondent indicated that he was unaware of his ineligibility and would be hiring counsel to represent his interests going forward. No further response was ever received from respondent, necessitating the issuance of a subpoena for his sworn statement. Despite being personally served with the subpoena, respondent failed to appear for the sworn statement as scheduled on April 3, 2013.

| ¡.DISCIPLINARY PROCEEDINGS

In July 2013, the ODC filed formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.1(b) (a lawyer is required to comply with the minimum requirements for continuing legal education), 1.1(c) (a lawyer is required to pay bar dues and the disciplinary assessment),» 5.5(a) (practicing law in violation of the regulation of the legal profession in that jurisdiction), and 8.1(c) (failure to cooperate with the ODC in its investigation).

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

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee made factual findings consistent with the factual allegations set forth above: Based on these findings, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined respondent violated a duty owed to his clients and the legal profession. Respondent knowingly violated Rules 1.1(b), 1.1(c), and 8.1(c) by failing to comply with his professional obligations and by failing to cooperate with the ODC in its investigation. Respondent’s violation of Rule 5.5, which was an isolated instance, was negligent, at most. Respondent caused potential harm to his clients by practicing law while he was ineligible to do so and caused actual harm to the court’s regulatory system by failing to cooperate with the |3OPC. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is suspension.

In aggravation, the committee found bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency and substantial experience in the practice of law (admitted 1988). In mitigation, the committee found the absence of a prior disciplinary record.

Considering the facts of this case, as well as the jurisprudence of the court, the committee recommended respondent be suspended from the practice of law for one year, with all but six months deferred, coupled with a one-year period of probation with special conditions, including the requirement that respondent maintain his eligibility, cooperate fully in all inquiries made by the ODC, and refrain from any further violations of the Rules of Professional Conduct.

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

Disciplinary Board Recommendation

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

■ The board determined respondent knowingly violated duties owed to the legal profession, and rejected the committee’s finding that respondent’s violation of Rule 5.5(a) was negligent. Respondent caused potential harm to his clients by practicing law while he was ineligible and caused actual harm to the legal profession by failing to cooperate with the ODC’s investigation, which caused the |4OPC to expend additional resources. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

The board adopted the aggravating factors found by the committee, but declined to adopt the mitigating factor of absence of a prior disciplinary record due to respondent’s prior judicial discipline in In re: Krake, 06-1658 (La.10/27/06), 942 So.2d 18. The board did not consider respondent’s prior judicial misconduct to be an aggravating factor in this matter, but also felt respondent should not benefit from the mitigating factor of having a clean discipline record.

The board acknowledged that the jurisprudence of the court in similar matters indicates at least a portion of any suspension could be deferred. However, in consideration of the totality of the circumstances in this matter, including respondent’s failure to participate in these proceedings in any meaningful manner, the board recommended respondent be suspended from the practice of law for one year and one day, which will require him to appear and demonstrate his fitness to return to the practice of law by clear and convincing evidence. One board member dissented and would recommend that a portion of the suspension be deferred.

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

DISCUSSION

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

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

The record in this deemed admitted matter supports a finding that respondent practiced law while ineligible and failed to cooperate with the ODC in its investigation. Based on these facts, respondent has violated the Rules of Professional Conduct as charged by the ODC.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987).

Respondent knowingly violated duties owed to his client and the legal profession. His misconduct caused potential harm to his clients and actual harm to the legal profession. The baseline sanction for this type of misconduct is | suspension. We agree with the disciplinary board’s assessment of the aggravating and mitigating factors.

In prior cases involving the practice of law by attorneys who are ineligible to do so, the court has imposed sanctions ranging from suspension to disbarment, with the baseline sanction generally being a suspension of one year and one day. See In re: Hardy, 03-0443 (La.5/2/03), 848 So.2d 511. Based on this jurisprudence, and considering the absence of any mitigating factors, we find no reason to deviate downward from the baseline sanction.

Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for one year and one day.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Allen A. Krake, Louisiana Bar Roll number 18986, be and he hereby is suspended from the practice of law for one year and one day. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Respondent, a former judge, was the subject of a disciplinary proceeding involving his public and persistent abuse of alcohol, especially his being severely hung over or appearing to be hung over while on the bench or in chambers. On October 27, 2006, we suspended respondent from judicial office for the remainder of his term, which was set to expire on December 31, 2008, with all but six months of that suspension deferred, and placed respondent on probation for the remainder of his term as a judge. On February 26, 2008, we revoked respondent’s probation for failure to comply with the terms of our previous order.


text:
    In re John Brewster OHLE, III.
    No. 2014-B-1083.
    Supreme Court of Louisiana.
    Oct. 24, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, John Brewster Ohle, III, an attorney licensed to practice law in Louisiana but currently on interim suspension based upon his conviction of a serious crime. In re: Ohle, 10-1707 (La.8/13/10), 41 So.3d 1175.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In November 2008, respondent was indicted by a federal grand jury in the Southern District of New York on various tax and fraud offenses. In August 2009, the Government filed an eight-count Second Superseding Indictment against respondent. The presiding federal judge severed three of these counts in January 2010, and the Government proceeded to trial on the severed counts only, subsequently recast as the Third Superseding Indictment. Count One charged respondent with conspiracy in violation of 18 U.S.C. § 1371. As charged to the jury, the conspiracy had two objects: (1) to commit wire fraud by obtaining fees, directly or indirectly, from Bank One, and (2) to defraud the Internal Revenue Service. In Counts Two and Three, respondent was charged with evasion of his ^personal income tax obligations for the 2001 and 2002 tax years, respectively, in violation of 26 U.S.C. § 7201.

The underlying facts of the Third Superseding Indictment are complex, but essentially, the Government alleged that respondent’s criminal conduct occurred as part of an effort to market, sell, and implement a tax shelter known as “Hedge Option Monetization of Economic Remainder,” or HOMER, which respondent designed for high net worth clients of Bank One. Respondent, who is also a CPA, allegedly prepared fraudulent invoices to obtain referral fees from Bank One on the transactions relating to this tax shelter, although he was not entitled to receive the fees, and then concealed the receipt of the ill-gotten referral fees by failing to report them on his individual tax returns. Furthermore, the Government alleged that respondent embezzled at least $8 million dollars from a client’s trust account and willfully evaded taxes on approximately $6.5 million in income in 2001 and 2002.

On June 2, 2010, following a three-week trial, the jury found respondent guilty of all three counts of the Third Superseding Indictment. In response to a special interrogatory, the jury found that the Government had proven respondent’s guilt with respect to both alleged objects of the Count One conspiracy.

In January 2011, respondent was sentenced to serve 60 months in a federal penitentiary, followed by a three-year period of supervised release. Respondent was ordered to pay $5,558,680.74 in restitution plus the cost of prosecution, and ^ordered to forfeit $2,954,334 in proceeds traceable to the charged conspiracy, as well as his interest in the property detailed in the indictment.

On October 20, 2011, the United States Court of Appeals for the Second Circuit affirmed respondent’s conviction in an unpublished opinion. Mandate issued on March 6, 2012. Respondent subsequently filed a motion to set aside his conviction pursuant to 28 U.S.C. § 2255. The § 2255 motion remains pending at this time.

DISCIPLINARY PROCEEDINGS

In November 2010, the ODC filed one count of formal charges against respondent, alleging that his conduct as set forth above violated Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Respondent initially failed to answer the formal charges, and the factual allegations contained, therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). Thereafter, the deemed admitted order was recalled and respondent filed an answer to the formal charges denying any violation of the Rules of Professional Conduct. The disciplinary matter was then held in abeyance pending the finality of respondent’s criminal conviction.

14 Ultimately, after this matter was delayed for more than a year at respondent’s request, a formal hearing was conducted by the hearing committee on October 17, 2018. The ODC introduced several volumes of documentary evidence pertaining to respondent’s criminal conviction and then rested.

Respondent did not participate in the hearing. As the hearing transcript reflects, a correctional counselor from the federal penitentiary where respondent is incarcerated stated for the record, via telephone, that respondent “said he was not aware of this hearing today and is not prepared and does not have his documents.” However, respondent’s counselor at the correctional facility subsequently submitted a letter stating that he had inadvertently failed to place respondent on the “call out” list for the day of the hearing; therefore, respondent did not have his legal documents with him and was unable to participate in the hearing.

The record was left open for an additional three weeks, until November 7, 2013, to allow the parties to submit additional information demonstrating whether adequate notice of the hearing was provided to respondent. On October 21, 2013, the ODC filed a post-hearing note of evidence which included the various notices of the hearing that had been forwarded to respondent. By letter to the disciplinary board dated November 1, 2013, respondent objected to the fact that the hearing proceeded without his participation. While respondent did not contest that he received notice of the hearing, he argued that personnel at the federal penitentiary did not afford him the opportunity to participate.

Hearing Committee Report

At the outset, the hearing committee rejected any suggestion by respondent that he was not properly notified of the hearing in this matter. The committee determined that notice of the hearing was properly delivered to respondent at the federal penitentiary where he is incarcerated. Respondent also participated in |fiseveral pre-hearing telephone conferences, including the September 26, 2013 telephone conference during which the October 17th hearing date was specifically discussed. Finally, respondent’s November 1, 2013 letter to the disciplinary board confirms he had notice of the hearing. The committee was not persuaded by respondent’s refusal to participate in the hearing because he did not have the legal documents he needed, given that this matter has been pending for three years and respondent had personal knowledge of the status of the proceedings.

Based upon the documentary evidence submitted by the ODC, the committee determined that respondent was convicted of conspiracy to defraud the United States and to commit wire fraud, and two counts of tax evasion. The committee found these are serious crimes that reflect upon respondent’s fitness to practice law. The committee concluded that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee found respondent violated a duty owed to the public. Under the ABA’s Standards for Imposing Lawyer Sanctions, the applicable baseline sanction is disbarment.

In mitigation, the committee acknowledged that respondent has no prior disciplinary record. The committee found the following aggravating factors are present: a dishonest or selfish motive and refusal to acknowledge the wrongful nature of the conduct.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the committee recommended he be permanently disbarred.

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

Disciplinary Board Recommendation

A panel of the disciplinary board heard oral argument in this matter on March 13, 2014. On May 23, 2014, the disciplinary board filed its report in this court, recommending that respondent be permanently disbarred.

After review, the board adopted the hearing committee’s factual findings and legal conclusions. The board determined that by embezzling funds from a client for whom he was a trustee, engaging in acts designed to defraud the United States, committing wire fraud, and evading personal taxes, respondent violated duties owed to his client, the public, and the profession. By their very nature, respondent’s acts were knowing and intentional and resulted in serious injury to his client, the government, the public, and the profession. The applicable baseline sanction in this matter is disbarment.

In mitigation, the board found the following factors: absence of a prior disciplinary record and imposition of other penalties or sanctions. In aggravation, the board found the following factors: a dishonest or selfish motive, a pattern of misconduct, and refusal to acknowledge the wrongful nature of the conduct.

Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended he be permanently disbarred.

Within the delay for filing objections to the board’s recommendation, respondent filed a “Motion to Remand,” requesting that this court remand this matter to the hearing committee for further proceedings. Specifically, respondent |7sought the opportunity to participate in the formal hearing and to present evidence in his defense, including the evidence from his pending § 2255 proceeding. After consideration, we denied respondent’s motion, but allowed him to file a brief setting forth his objections to the board’s recommendation. Both respondent and the ODC subsequently filed briefs in accordance with our order.

DISCUSSION

Respondent’s primary argument in this court is that the ODC’s formal charges incorrectly refer to the Second Superseding Indictment, rather than the Third Superseding Indictment. Respondent asserts that this erroneous reference constitutes a violation of his due process rights and mandates the matter be remanded to the committee for a new hearing.

The ODC does not dispute respondent’s contention that the formal charges fail to mention the Third Superseding Indictment. Nonetheless, the ODC points out that the reference to the indictments is merely a “background foundation” for respondent’s federal criminal conviction, which forms the basis for the charges.

In Louisiana State Bar Ass’n v. Keys, 567 So.2d 588, 591 (La.1990), we discussed the due process requirements for formal charges in bar disciplinary matters:

In a bar discipline proceeding due process requires that an attorney be given notice of the misconduct for which the disciplinary authority seeks to sanction him, as well as an opportunity to explain his conduct or defend against the charges of misconduct. In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585 (1917). Conversely, due process prohibits sanctioning the attorney for unrelated misconduct revealed by the evidence in the disciplinary proceeding when the attorney had not been notified that the uncharged violations would be considered as disciplinary offenses or that he should be prepared to present a defense as to that misconduct. Louisiana State Bar Association v. McGovern, 481 So.2d 574 (La.1986). [Footnote omitted.]

«Applying these principles to the instant case, we find respondent was given notice of the misconduct for which the ODC sought to sanction him, as well as an opportunity to explain his conduct or defend against the charges of misconduct. Although the formal charges omit reference to the Third Superseding Indictment, they clearly indicate respondent was convicted on June 2, 2010 and that “[r]espon-dent’s acts forming the basis of his felony conviction violate Rules of Professional Conduct 8.4(a-d) ...” Any error in the formal charges concerning the procedural history of the criminal case does not create a deficiency in the record which requires a remand for further proceedings. Therefore, we see no merit to respondent’s procedural arguments.

Turning to the merits, it is well settled that when disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed in a given case depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

Here, respondent stands convicted of wire and tax fraud conspiracy charges stemming from a scheme to fraudulently obtain referral fees related to a tax shelter that he marketed, sold, and implemented, and thereafter concealing the receipt of those fees by failing to accurately report them to the IRS and pay taxes on them. Respondent was also convicted of two counts of tax evasion based on his failure to report to the IRS millions of dollars he embezzled from a client’s trust, as well as |9the fraudulently obtained referral fees. These crimes are felonies are federal law and clearly merit serious discipline. Unquestionably, respondent’s conduct warrants disbarment.

The sole remaining question is whether the offenses are so egregious that respondent should be permanently prohibited from applying for readmission to the bar. This court has long recognized that “[h]igh standards of honesty and righteousness have been erected for those engaged in the legal profession ...” Louisiana State Bar Ass’n v. Haylon, 250 La. 651, 198 So.2d 391, 392 (1967). Historically, disbarment was the harshest sanction available for attorneys who breached this high standard of conduct. Effective August 1, 2001, in the exercise of our constitutional authority to regulate the practice of law, we adopted amendments to Supreme Court Rule XIX, § 10 and’ § 24 to provide for the sanction of permanent disbarment. In the commentary accompanying the amendment, we explained, “The amendments reflect the judgement of the Court that in some instances lawyer misconduct may be so egregious as to warrant a sanction of permanent disbarment based on the facts of an individual case ...”

Permanent disbarment is reserved for those cases where the attorney’s conduct convincingly demonstrates that he or she does not possess the requisite moral fitness to practice law in this state. In re: Petal, 10-0080 (La.3/26/10), 30 So.3d 728; In re: Muhammad, 08-2769 (La.3/4/09), 3 So.3d 458. We have not hesitated to permanently disbar attorneys who have committed serious crimes reflecting on their honesty and integrity. In re: Bradley, 11-0254 (La.4/25/11), 62 So.3d 52; In re: Edwards, 04-0290 (La.7/2/04), 879 So.2d 718; In re: Kirchberg, 03-0957 (La.9/26/03), 856 So.2d 1162.

The record reveals that respondent orchestrated a complex scheme in which he stole money from a client’s trust, then stole fees from Bank One that would not otherwise have gone to him, and finally avoided paying federal income taxes on |inthe monies so obtained. See United States v. Ohle, 441 Fed.Appx. 798, 800 (2nd Cir.2011). Without a doubt, such conduct reveals a fundamental lack of honesty and integrity in respondent’s character which makes him unfit to hold a license to practice law in this state.

We do not impose permanent disbarment lightly. In re: Morphis, 01-2803 (La.12/4/02), 831 So.2d 934. However, in light of the undisputed facts of this case, we can conceive of no circumstances under which we would ever allow respondent to be readmitted to the practice of law in Louisiana. He must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the briefs filed by the parties, it is ordered that the name of John Brewster Ohle, III, Louisiana Bar Roll number 22510, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . See United States v. Ohle, 678 F.Supp.2d 215 (S.D.N.Y.2010).

      . Following respondent’s conviction, the Government declined to try him on the remaining counts of the Second Superseding Indictment, but argued instead that respondent’s conduct underlying the severed charges constituted "relevant conduct” for purposes of calculating the sentencing guidelines range, because the evidence showed the HOMER tax shelter was itself fraudulent, that respondent knew it, and that he willfully participated in its implementation. Respondent disputed these allegations. After a two-day evidentiary hearing, the federal judge concluded it was "obvious” that the HOMER tax shelter was fraudulent and violated the tax laws, and that respondent not only knew this but "helped make it so.” Accordingly, the judge determined that the HOMER tax shelter fraud and the attendant tax losses constituted "relevant conduct” to be considered at sentencing. The Government subsequently filed a sentencing memorandum indicating that the tax losses attributable to the HOMER tax shelter totaled nearly $100 million.

      . This post-conviction proceeding does not affect the finality of the criminal conviction for purposes of attorney disciplinary proceedings. See Supreme Court Rule XIX, § 19(E); In re: Shepherd, 11-2011 (La.6/22/12), 91 So.3d 283; In re: Dillon, 11-0331 (La.7/1/11), 66 So.3d 434; Louisiana State Bar Ass’n v. Shaheen, 338 So.2d 1347 (La.1976).

      . These documents apparently relate to respondent’s pending § 2255 proceeding. However, the committee noted that even if these documents were available to respondent, they would have been inadmissible at the hearing pursuant to Supreme Court Rule ■ XIX, § 19(E), which provides that a lawyer convicted of a criminal offense may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime of which he was convicted.

      . Respondent participated in the board panel argument by telephone from the federal penitentiary in Pensacola.

      . Respondent also argues he should be entitled to introduce evidence from his pending § 2255 proceeding. We agree with the hearing committee's finding that this evidence is irrelevant to the issues presently before the court.


author: PER CURIAM. KNOLL, J.,

text:
    In re Laura J. JOHNSON.
    No. 2014-B-1942.
    Supreme Court of Louisiana.
    Oct. 24, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

liThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent engaged in conduct constituting a conflict of interest. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Laura J. Johnson, Louisiana Bar Roll number 7312, be and she hereby is publicly reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

KNOLL, J., would reject the consent discipline.

KNOLL, J.,

dissents.

hi would reject the consent discipline.


text:
    In re Roderick T. MORRIS.
    No. 2014-B-1936.
    Supreme Court of Louisiana.
    Oct. 24, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation-into allegations that respondent commingled personal funds with client funds in his trust account and allowed the account to become overdrawn on one occasion. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Roderick T. Morris, Louisiana Bar Roll number 27581, be suspended from the practice of law for a period of six months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of supervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation,, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.