text:
    Yvonne Santiago MONTANA v. Patricia Lyons JORDAN.
    No. 2013-CA-1410.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2014.

      Charles E. McHale, Jr., Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Tony Dooley, The Dooley Law Office, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO).
   PAUL A. BONIN, Judge.

I,The trial judge granted Patricia Jordan’s motion for summary judgment, dismissing with prejudice Yvonne Montana’s action to annul the judgment, which confirmed Ms. Jordan’s title to property acquired at tax sale. The trial judge also denied Ms. Montana’s motion for summary judgment and overruled Ms. Jordan’s peremptory exceptions of no cause of action, no right of action, and prescription. Ms. Montana appeals both the final judgment dismissing her claim with prejudice and the interlocutory judgment denying her motion for summary judgment.

Having conducted a de novo review of the cross-motions for summary judgment, we conclude that both parties failed to meet their respective burdens of proof as set forth in La. C.C.P. art. 966. Ms. Jordan did not identify an absence of factual support for an element essential to Ms. Montana’s claim, and Ms. Montana failed to establish that no genuine issue as to any material fact exists. As a result, the trial judge was precluded from granting summary judgment to either party. We therefore reverse the trial judge’s decision to grant Ms. Jordan’s motion for summary judgment, affirm her denial of Ms. Montana’s motion for summary | ¡.judgment, and remand the matter to the trial court for further proceedings. We explain our reasoning in greater detail below.

I

We begin by describing the facts underlying this controversy.

Ms. Irma Santiago, the mother of the appellant, owned residential property located at 3100 Louisa Street in New Orleans. The ad valorem taxes assessed against this property went unpaid for the 2006-2008 tax years; as a result, on January 28, 2010, the City’s Finance Director executed a Tax Sale Deed for an undivided one percent (1%) interest in the property to Ms. Jordan upon her payment of the delinquent taxes, interest, and penalties. See La. R.S. 47:215s. Ms. Jordan later filed a petition to quiet title against Ms. Santiago in Civil District Court under number 12-3842. See La. R.S. 47:2266. On December 18, 2012, the district judge, following, according to the judgment, a contradictory hearing, confirmed Ms. Jordan’s title over the entirety (100%) of the property.

Two days later, Ms. Santiago died in her home in San Antonio, Texas. Ms. Santiago died intestate, and thus Ms. Montana, as her sole heir, became the universal successor of Ms. Santiago as of the time of her death. See La. Civil Code arts. 3506(28), 935.

Neither Ms. Santiago (prior to her death) nor Ms. Montana (after her mother’s death) filed a motion for new trial or an appeal of the judgment | ^confirming tax title. On January 2, 2013, however, Ms. Montana paid all outstanding taxes, interest, and costs due for the 2006-2013 tax years on the property, and the City’s Finance Director issued a Receiving Warrant which verified her payment.

Claiming that the confirmation judgment was obtained by “fraud or ill practices,” Ms. Montana next instituted a nullity action on April 23, 2013 in Civil District Court under number 13-3863. Ms. Montana amended this suit after being recognized as the sole owner of her mother’s estate, which included the property subject to this confirmation judgment, by Judgment of Possession on May 22, 2013. Ms. Montana had opened her mother’s succession in Civil District Court under number 13-4091.

Ms. Montana then filed a motion for summary judgment, and Ms. Jordan responded by filing her own motion for summary judgment in addition to asserting peremptory exceptions of no cause of action, no right of action, and prescription. See La. C.C.P. arts. 966, 927 A(l, 5, 6). The district judge granted Ms. Jordan’s motion for summary judgment, denied Ms. Montana’s motion, and overruled Ms. Jordan’s peremptory exceptions. Ms. Montana timely appealed the final judgment dismissing her claim with prejudice and the interlocutory judgment denying her motion for summary judgment. See La. C.C.P. art. 2123.

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Before we substantively discuss our review of the complained-of rulings, we briefly consider Ms. Montana’s status as the universal successor to Ms. Santiago. Even though Ms. Jordan did not file an answer to Ms. Montana’s appeal, see La. C.C.P. arts. 2133 A, and on that account the trial judge’s decision to overrule Ms. Jordan’s peremptory exception of no right of action was not preserved for our appellate review, we consider it helpful to explain why Ms. Montana is the appropriate party to bring this nullity action following the death of her mother. Ms. Jordan asserted that standing to institute this nullity action was the strictly personal, non-heritable right of Ms. Santiago. Ms. Montana, as Ms. Santiago’s universal successor, however, acquired, upon her mother’s death, all of her mother’s rights which were heritable. See La. Civil Code arts. 3506(28); 1416 cmt. (a). Such rights include ownership over her mother’s remaining undivided interest in the property not conveyed at tax sale and, incidental thereto, the right to timely challenge any judgment affecting that property.

A

The status of universal successor affords to its holder numerous rights and responsibilities. A “universal successor represents the person of the deceased, and succeeds to all [her] rights and charges.” La. Civil Code art. 3506(28). Universal successors acquire ownership of the deceased’s estate immediately upon their death, see La. Civil Code art. 935, and “continue the possession of the decedent | swith all its advantages and defects, and with no alteration in the nature of the possession.” La. Civil Code art. 936.

The immediacy of the acquisition of her ownership allows for Ms. Montana to exercise rights with respect to her interests in a thing of the estate as well as in the estate as a whole prior to the judicial appointment of a succession representative. See La. Civil Code art. 938 A. A universal successor may also, prior to the judicial appointment of a succession representative, represent the decedent with respect to her heritable rights and obligations. See La. Civil Code art. 935.

B

As Ms. Santiago’s universal successor, Ms. Montana has standing to institute this nullity action challenging a confirmation judgment, rendered prior to her mother’s death, which conveyed an additional 99% ownership interest than that reflected in Ms. Jordan’s Tax Sale Deed. Ms. Santiago’s right to protect that ownership interest through a nullity action is heritable. See La. Civil Code arts. 1765,1766.

1

“A civil action is a demand for the enforcement of a right.” La. C.C.P. art. 421. An action to enforce an obligation is the property of the obligee which on his death is transmitted with his estate to his heir. See La. C.C.P. art. 426. This rule also applies to a right to enforce an obligation, when no action thereon was commenced prior to the obligee’s death. See ibid. An obligation and, by |ñinference, a right is “heritable when its performance may be enforced by a successor of the obligee or against a successor of the obligor.” La. Civil Code art. 1765. “Every obligation is deemed heritable as to all parties, except where the contrary results from the terms or from the nature of the contract.” Ibid.

The nearly unqualified heritability of rights to enforce an obligation has one notable exception — strictly personal rights. See La. C.C.P. art. 426 cmt. (b). Actions classified under this exception abate on the death of obligee. See La. C.C.P. art. 428. An obligation and, by inference, a right “is strictly personal when its performance can be enforced only by the obligee, or only against an obligor.” La. Civil Code art. 1766. When performance involves “personal services” or “requires the special skill or qualification of the obligor, the obligation is presumed to be strictly personal.” Ibid. Similarly, an obligation is also strictly personal “[w]hen the performance is intended for the benefit of the obligee exclusively.” Ibid. Except for the foregoing provisions, rights and obligations are presumed to be heritable. See La. Civil Code art. 1765.

2

But for the confirmation judgment, Ms. Montana would have acquired ownership of this property subject to her mother’s right (if any), under La. Const, art. 7, § 25, to redeem the one percent interest conveyed at tax sale. See, e.g., Succession of Caldarera v. Zeno, 09-1397 (La.App. 4 Cir. 7/16/10), 43 So.3d 1080. This would have included full ownership over her mother’s remaining interest (i.e., the undivided 99%) in the property not conveyed at tax sale because a judgment confirming title to property sold at tax sale may not convey a greater ownership interest in a property than that reflected in the relevant Tax Sale Deed. See La. R.S. 47:2266; 47:2121 C(l); 47:2153 B(5) (setting forth the bidding process at tax sale); 47:2154 C (setting forth the method of calculating the price at tax sale). Importantly, and contrary to Ms. Jordan’s argument, La. R.S. 47:2266 A(2) does not grant full ownership over the entirety of the property after the tax sale purchaser confirms her tax sale title in a lesser interest in the property. “Full ownership,” as granted pursuant to confirmation proceedings, changes the nature of the rights held by the tax sale purchaser, not the percentage interest held in indivisión. See La. R.S. 47:2122(22); 47:2266.

Here, Ms. Jordan purchased a one percent, undivided interest in the property as reflected in her Tax Sale Deed, but was awarded full ownership over the entirety of the property by confirmation judgment. Ms. Montana instituted an action to nullify that judgment, which conveyed ownership to Ms. Jordan over her mother’s remaining interest in the immovable property. Ms. Santiago’s right to institute this nullity action is certainly heritable, and, as the universal successor, Ms. Montana undoubtedly has the right to institute this action and a legal interest in the property that forms the basis of this litigation.

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We now turn to examine the trial judge’s decisions, on cross-motions for summary judgment, to grant Ms. Jordan’s motion and deny Ms. Montana’s motion. After our de novo review, we find that the trial judge was precluded from granting summary judgment in favor of either party as neither met their respective burdens of proof as movants under La. C.C.P. art. 966. Ms. Jordan failed to establish an absence of factual support for Ms. Montana’s claim that the confirmation judgment was obtained by fraud or ill practices, and Ms. Montana did not show that there is no genuine issue as to that material fact in this civil action.

A

We first address the legal precepts governing our review of a trial judge’s rulings on cross-motions for summary judgment. ‘We review a grant or denial of a motion for summary judgment de novo.” Marseilles Homeowners Condominium Ass’n, Inc. v. Broadmoor, L.L.C., 12-1233, p. 16 (La.App. 4 Cir. 2/27/13), 111 So.3d 1099, 1110 (citing Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910). Our review utilizes “the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.” Mitchell v. Villien, 08-1470, p. 5 (La.App. 4 Cir. 8/26/09), 19 So.3d 557, 562 (citing Kennedy v. Sheriff of East Baton Rouge Parish, 05-1418, pp. 25-26 (La.7/10/06), 935 So.2d 669, 686). We examine “the facts and evidence in the record before us, inspecting it without regard or deference to the judgment of the trial court or its reasons for judgment. While a trial court’s reasoning for granting a summary judgment may 19well be informative, it is not determinative of the legal issues to be resolved by the appellate court.” Cusimano v. Port Esplanade Condominium Ass’n, Inc., 10-0477, pp. 4-5 (La.App. 4 Cir. 1/12/11), 55 So.3d 931, 934.

“The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966 A(2). In the trial court, a “plaintiff or defendant ... may move for a summary judgment in his favor for all or part of the relief for which he has prayed.” La. C.C.P. art. 966 A(l). In support of these motions, movants may submit supporting documents in conjunction with their motions for summary judgment, including pleadings, depositions, answers to interrogatories, admissions, and supporting affidavits. See La. C.C.P. art. 966 B(2).

As this case involves cross-motions for summary judgment, we must be mindful of the burden of proof imposed on each party. See Gray v. American Nat. Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (citing Duncan v. U.S.A.A. Ins. Co., 06-0363, p. 4 (La.11/29/06), 950 So.2d 544, 547) (internal punctuation omitted). A movant generally carries the burden of showing “that there is no genuine issue as to material fact” and that she is “entitled to judgment as a matter of law.” La. C.C.P. art. 966 B(2). When, however, she does not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, “the movant’s burden on the motion does not require [her] to negate all essential elements of the adverse party’s claim ..., but rather to point out to the court that there is an absence of factual support for one or more elements Inessential to the adverse party’s claim.” La. C.C.P. art. 966 C(2). A determination of whether a genuine issue of material fact exists in a civil action requires a two-part inquiry.

First, in order to determine the materiality of a fact, “a reviewing court must evaluate the substantive law that governs the litigation at issue.” Marseilles Homeowners, 12-1233 at p. 17, 111 So.3d at 1110-1111. “[A] fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Facts are material if they ‘potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.’ ” Id., 12-1233 at p. 17, 111 So.3d at 1110 (quoting Woodland Properties, L.L.C. v. New Orleans Sewerage and Water Bd., 10-0331, p. 3 (La.App. 4 Cir. 9/29/10), 49 So.3d 443, 445). “ ‘Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits.’ ” Id. (quoting Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, p. 11 (La.4/12/05), 907 So.2d 37, 48)(internal quotations omitted).

Second, to determine the genuine nature of an issue, we do not “consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Formal allegations without substance should be closely scrutinized to determine if they do reveal genuine issues of fact.” Id. (citing Windham v. Murray, 06-1275, p. 3 (La. App. 4 Cir. 5/30/07), 960 So.2d 328, 331). “[A] ‘genuine issue’ is a triable issue, that is, an issue on which reasonable persons could disagree.” Id. (citing Jones v. Estate of Santiago, 03-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006). Thus, “[i]f on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is a means on disposing of such meretricious disputes.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751 (internal punctuations and citations omitted).

During our de novo review, should we discover any genuine issues, we must reverse a trial court’s decision to grant a motion for summary judgment in regards to any legal claims to which those issues are material. Summary procedure is no longer appropriate at that point. Those issues will require a credibility determination by the trier of fact at a trial on the merits.

B

We now review the specifics of the cross-motions for summary judgment by setting forth the underlying legal framework for this nullity action. A detailed examination of this cause of action properly limits the scope of our review in regards to the “genuine” nature of disputed issues by screening “immaterial” facts from our consideration. We can then determine whether the remaining material facts are even disputed and whether the issues arising under those material facts are genuine.

I12I

“A final judgment obtained by fraud or ill practices may be annulled” as a relative nullity and tainted by a vice of substance. La. C.C.P. art. 2004. See Cannizzaro ex rel. State v. American Bankers Ins. Co., 12-1455, p. 10 (La.App. 4 Cir. 7/10/13), 120 So.Sd 853, 860. “The purpose of an action for nullity is to prevent injustice which cannot be corrected through new trials and appeals.” Belle Pass Terminal, Inc. v. John, Inc., 01-0149, p. 5 (La.10/16/01), 800 So.2d 762, 766.

To prevail in an action to nullify a judgment obtained by fraud or ill practices, a plaintiff must prove four material facts, the first three of which are not in dispute in these proceedings. First, Ms. Montana is seeking nullification of a previously rendered final judgment. See La. C.C.P. art. 2004 A. A final judgment is one “that determines the merits in whole or in part.” La. C.C.P. art. 1841. See also La. C.C.P. arts.1911-1915. Mr. Montana attached a copy of this signed final judgment to her motion for summary judgment as “Exhibit 3.” Second, the cause of action “must be asserted in a direct action and not raised collaterally.” Mooring Financial Corp. 4.01(E) Profit Sharing Plan v. Mitchell, 08-1250, p. 9 (La.App. 4 Cir. 6/10/09), 15 So.3d 311, 318. Ms. Montana filed her nullity action as a direct action in Civil District Court under number 13-3863. This filing was independent from the action filed by Ms. Jordan seeking confirmation judgment in Civil District Court under number 12-3842. Third, Ms. Montana brought this cause of action within one year of her discovery of the claimed fraud or ill practices. See La. | iaC.C.P. art. 2004 B. This nullity action was brought within five months of the rendering of the challenged judgment. These material elements of a nullity action are undisputed, and, thus, no genuine issue arises as to their proof during summary procedure.

2

The fourth and final material element of this nullity action under La. C.C.P. art.2004, however, is disputed and requires a showing that the challenged final judgment was obtained by fraud or ill practices. “ ‘Fraud and ill practices’ is a term of art, no actual fraud or intentional wrongdoing need be involved.” Guise Sheet Metal Co., Inc. v. La Quinta Dev. Partner, L.P., 02-2515, p. 2 (La.App. 4 Cir. 5/21/03), 848 So.2d 666, 667 (citing Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983)). “[E]ven an innocent mistake that leads to an improper judgment may be grounds for nullity.” Id. Fraud and ill practices, conceptually, “is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure.... ” See Kem Search, 434 So.2d at 1070.

Not every fraud or ill practice, however, provides a ground to annul a judgment. Nullity is only an appropriate remedy when the judgment is “obtained by” fraud or ill practice. As such, a “causal relationship between the fraud or ill practice and the obtaining of the judgment” must be found. Ward v. Pennington, 523 So.2d 1286, 1289 (La.1988). See also Williamson v. Haynes Best Western of Alexandria, Inc., 06-1928 (La.11/3/06), 940 So.2d 648.

Louisiana jurisprudence sets forth a two-pronged analysis to prove that a judgment was obtained by fraud or ill practice: 1) whether the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and 2) whether enforcement of the judgment would be unconscionable or inequitable. See Power Marketing Direct, Inc. v. Foster, 05-2023, p. 12 (La.9/16/06), 938 So.2d 662, 670; LCR-M Ltd. P’ship v. Jim Hotard Props., L.L.C., 13-0483, p. 10 (La.App. 4 Cir. 10/9/13), 126 So.3d 668.

In reviewing this disputed material fact, we must first determine whether the supporting documents in each of these remedially-juxtaposed motions are “sufficient to resolve all material factual issues.” Smith, 93-2512 at p. 28, 639 So.2d at 752. We review the documents attached to each motion for summary judgment in light of each party’s burden of proof set forth in La. C.C.P. art. 966. Ms. Jordan must show an absence of factual support for this essential element, and Ms. Montana must establish that there is no genuine issue as to this material fact and entitlement to judgment under La. C.C.P. art. 2004 B(2). See La. C.C.P. art. 966. These rigorous burdens are set forth as gatekeepers to preclude access to summary process for parties in cases more appropriately determined by the trier of fact.

We begin by reviewing Ms. Jordan’s motion for summary judgment. As previously stated, Ms. Jordan was required to identify an absence of factual | ^support that the confirmation judgment was obtained by fraud or ill practice. See La. C.C.P. art. 966 C(2). Ms. Jordan’s motion for summary judgment is supported by very few documents and contains mostly argument. First, Ms. Jordan asserts that the property in question was blighted prior to its conveyance at tax sale. No document evidencing blight adjudication was attached to this motion, however. See La. R.S. 13:2575. Second, Ms. Jordan contends that no fraud or ill practice occurred at the contradictory hearing on December 17, 2012, claiming that the curator ad hoc presented her findings to the court and did not oppose Ms. Jordan’s confirmation of title. Ms. Jordan also asserts that the conveyance of the additional ownership interest was explained to the district judge and justified by the expenditures that Ms. Jordan made in repairing the property. Ms. Jordan, however, fails to attach a transcript of that hearing or even an affidavit setting forth what occurred at the hearing. Ms. Jordan has failed to point to “an absence of factual support” for Ms. Montana’s claim that the confirmation judgment was obtained by fraud or ill practice. The trial judge incorrectly granted Ms. Jordan’s motion for summary judgment.

We next review Ms. Montana’s motion for summary judgment. Ms. Montana was required to show in her motion for summary judgment and its supporting documents that there are no genuine issues as to whether the confirmation judgment was obtained by fraud or ill practices and that she is entitled to judgment under La. C.C.P. art. 2004. See La. C.C.P. art. 966 B(2). In her attempt to meet this burden, Ms. Montana only attaches a copy of the judgment |1fifrom the confirmation proceedings. This judgment certainly shows that a legal error occurred when the trial court granted full ownership over the entirety of the property rather than simply the one percent undivided interest that Ms. Jordan had acquired at tax sale. The judgment, however, offers little beyond this. Ms. Montana, much like Ms. Jordan, then makes numerous unsupported assertions, claiming that Ms. Jordan misrepresented her percentage interest in the property to the district court, that the Tax Sale Deed was not examined to confirm the extent of Ms. Jordan’s interest in the property, and that no contradictory hearing took place on December 17, 2012. A copy of the judgment alone is insufficient to satisfy Ms. Montana’s burden in this matter as it far from establishes that Ms. Jordan’s conduct was fraudulent or constituted ill practice. The obvious legal error in the judgment, however, does raise a genuine issue as to whether fraud or ill practice occurred in obtaining the confirmation judgment. The trial judge, thus, correctly denied Ms. Montana’s motion for summary judgment.

The only relevant supporting evidence attached to either party’s motion are a copy of the Tax Sale Deed and a copy of the confirmation judgment itself. By decreeing one hundred-percent ownership to Ms. Jordan as opposed to the one-percent interest set forth in the tax-sale deed, the confirmation judgment suffices for a prima facie factual showing that it may have been obtained by an ill practice, but in itself it fails to conclusively establish Ms. Montana’s claim that the judgment was actually obtained by fraud or ill practice or that there is no genuine issue as to that material fact.

|17As a result of neither party meeting their respective burdens of proof, we conclude that, on the basis of the cross-motions filed and the supporting materials, summary judgment was unavailable to either party. A genuine issue of material fact exists as to whether this confirmation judgment was obtained by fraud or ill practices. This matter should be determined by a trier of fact at a trial on the merits.

DECREE

We reverse the trial judge’s decision to grant Ms. Jordan’s motion for summary judgment, affirm the trial judge’s decision to deny Ms. Montana’s • motion for summary judgment, and remand this matter to the trial court for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

BAGNERIS, J., Concurs in the result reached.

      . The proper name for a document evidencing tax sale tide is a “Tax Sale Certificate.” See La. R.S. 47:2155. The document attached as part of this motion for summary judgment, however, is labeled "Tax Sale Deed.” We proceed according to the face of the document.

      . The time for filing a motion for new trial or for an appeal had expired. See La. C.C.P. arts. 1974, 2087, and 2123.

      . “[I]n the context of cross-motions for summary judgment, a party may obtain appellate review of the judgment denying its motion when it appeals the judgment which granted the opposing party relief on the issue.” Bass Partnership v. Gravolet, 12-0024, p. 10 (La. App. 4 Cir. 11/21/12), 105 So.3d 224, 231 (citing Favrot v. Favrot, 10-0986, p. 2 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102 n. 1). See also La. C.C.P. arts. 968, 2083.

      . Ms. Montana briefed extensively regarding the timeliness of her redemption. Because, however, neither Ms. Santiago nor Ms. Montana filed a motion for new trial or appealed the confirmation judgment, this issue was not properly preserved for our review in this appeal.

      . The heritability of this right furthers "the law’s preference that property sold for nonpayment of taxes be redeemed by the tax debtor." Smith v. Brumfield, 13-1171, p. 6 (La.App. 4 Cir. 1/15/14), 133 So.3d 70, 78 (citing Harris v. Guardian Funds, Inc., 425 So.2d 1322, 1326 (La.App. 4th Cir.1983)). See also La. R.S. 47:2242 ("Any person may redeem tax sale title to property, but the redemption shall be in the name of the tax debtor.”).

      . A pertinent example of this is the timeliness of Ms. Montana’s redemption of this property. As discussed in Part II-B-2, ante, review of this issue is not proper under the present nullity action. Thus, we need not consider this extensively briefed discussion in our review of whether the trial court’s ruling on this cross-motion for summary judgment was correct, although the timeliness of the redemption under La. Const, art. 7, § 25 may be relevant should Ms. Montana prevail in her nullity action and then Ms. Jordan re-institute confirmation proceedings. See Brumfield, 13-1171 at pp. 5-8, 133 So.3d at 80.

      . The confirmation judgment was rendered on December 18, 2012, and the nullity action was filed on April 23, 2013.


source: Caselaw Access Project

author: Judge ROLAND L. BELSOME.

license: Public Domain

text:
    STATE of Louisiana v. Erice C. LANEHEART.
    No. 2012-KA-1580.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 26, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/ State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge JOY COSSICH LOBRANO).
   Judge ROLAND L. BELSOME.

|TIn this criminal appeal, the defendant appeals his attempted second degree murder conviction, and one hundred year habitual offender sentence. We affirm.

STATEMENT OF THE CASE

The defendant, Erice C. Laneheart, was charged by bill of information with attempted second degree murder, a violation of La. R.S. 14:27:30.1. He pled not guilty at arraignment. After a hearing, the trial court granted the defendant’s motion to suppress the identification and withheld a probable cause determination. On review, this Court reversed the suppression. Subsequently, the trial court found no probable cause and released defendant from his bond obligation.

After a bench trial, the defendant was found guilty as charged. He was later sentenced to fifty years at hard labor without benefits. At the conclusion of a multiple offender hearing, he was adjudicated a second felony offender. The trial court vacated the previous sentence and sentenced defendant to one hundred years at hard labor without benefits. This appeal followed.

TIMELINESS OF APPEAL

As a preliminary matter, the State submits that the defendant’s appeal is untimely and should not be considered. La. C.Cr.P. art. 914 provides:

A. A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court.

B. The motion for an appeal must be made no later than:
(1) Thirty days after the rendition of the judgment or ruling from which the appeal is taken.
(2) Thirty days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed.

Because no motion to reconsider sentence was filed, the defendant had thirty days from the day after March 7, 2012, to perfect his appeal; however, his motion for appeal was not filed until April 24, 2012, after the delays specified by La.C.Cr.P. art. 914 had expired.

Recently, in State v. Williams, 11-881 (La.App. 5 Cir. 3/27/12), 91 So.Sd 442, the Fifth Circuit considered a similar circumstance. There, the defendant filed an untimely motion for appeal which was granted. Nevertheless, the court concluded that the defendant’s appeal was properly before the court. It noted that the State failed to object to the procedural irregularity. It further reasoned that ordering a dismissal to allow the defendant to properly seek reinstatement of appeal rights would only prolong the proceedings without serving any useful purpose. Id., p. 2, n. 2, 91 So.3d at 443 (citations omitted).

Like in Williams, the defendant failed to timely file a motion; however, the State failed to object to his untimely appeal. As the Williams court stated, dismissing the defendant’s appeal to allow him to properly seek reinstatement | aof his appeal rights would delay the proceedings without reason. Likewise, we find that the defendant’s appeal is properly before this Court.

FACTS

At approximately 10:00 p.m. on October 27, 2010, the defendant shot the twenty-one-year-old victim, Roderick Clanton, who was standing in front of his grandmother’s house at the intersection of Washington Avenue and Danneel Street. A passerby drove the victim to Touro Infirmary, where he was treated for multiple gunshot wounds.

At trial, the victim testified that on the night of the shooting, he was standing on the sidewalk in front of his grandmother’s house with an acquaintance he knew as “Joe.” Though it was late, the victim’s grandmother had her porch light on and there was street lighting in the area. While he was outside, the victim observed a man, whom he knew as “Four,” ride by on a bicycle. He explained that both he and “Four” lived in the same housing development, and that he had known “Four” all of his life.

Shortly thereafter, the victim saw “Four” again on the bicycle, but he had changed his clothes. He was now wearing all black. While the victim was talking to Joe, he heard “Four” utter, “Say.” In response, the victim turned his head to the left; where he observed “Four” begin to shoot at him. He continued to observe “Four” shoot at him, between five and seven times in all, until he fell on the ground. Once the shooting ceased, “Four” rode away on his bike towards Danneel Street; meanwhile, the victim was taken to the hospital.

14After arriving at the hospital, the victim met with Detective Matthew McCleary of the New Orleans Police Department. He informed the detective that a man he knew only as “Four” shot him. He further explained that “Four” could be identified as the person who was shot at the same corner in June of 2009. Using a reference log of shootings kept by the Sixth District of the New Orleans Police Department, Detective McCleary was able to identify the defendant, Erice Laneheart, as the person who was shot on June 25, 2009. While in the hospital, Detective McCleary presented the victim with a single photograph of the defendant, whom he swiftly identified as his shooter.

DISCUSSION

In the defendant’s two assignments of error, he complains of three trial errors: 1) the evidence was insufficient; 2) his sentence was excessive; and 3) counsel was ineffective.

First, the defendant argues that the State failed to prove his identity as the shooter, as it did not negate the reasonable probability of misidentification. Thus, he concludes that the evidence was insufficient to support his conviction.

When reviewing the sufficiency of the evidence to support a conviction, this court is controlled by the standard set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which dictates that to affirm a conviction “the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).

⅞⅛ addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372, 378 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198, 1201 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817, 821 (La.1987).

In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 02-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79 (citation omitted). Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court. State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291, 1293 (citation omitted). “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992) (citation omitted).

A fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Where rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all evidence most favorable to the prosecution must be adopted on review. Only irrational decisions to convict by the trier of fact will be overturned. State v. Winston, 11-1342, p. 8 (La.App. 4 Cir. 9/12/12), 100 So.3d 332, 337 (citations omitted).

When the identity of the defendant as the perpetrator is disputed, the State must negate any reasonable probability of misidentifieation in order to satisfy its burden under Jackson v. Virginia, supra. State v. Galle, 11-0930, p. 31 (La. App. 4 Cir. 2/13/13), 107 So.3d 916, 935; State v. Everett, 11-0714, p. 15 (La.App. 4 Cir. 6/13/12), 96 So.3d 605, 619, writs denied, 12-1593, 12-1610 (La.2/8/13), 108 So.3d 77. The appellate court also reviews the reliability of an identification in accordance with the factors set out in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), which are: 1) the opportunity of the witness to view the assailant at the time of the crime; 2) the witness’s degree of attention; 3) the accuracy of the witness’s prior description of the assailant; 4) the level of certainty demonstrated by the witness; and 5) the length of time between the crime and the confrontation. State v. Stewart, 04-2219, p. 6 (La.App. 4 Cir. 6/29/05), 909 So.2d 636, 639. Further, this Court has upheld one-photograph identifications where the victims have known their assailants. See State v. Weber, 02-0618 (La.App. 4 Cir. 12/4/02), 834 So.2d 540; and State v. Salone, 93-1635 (La.App. 4 Cir. 12/28/94), 648 So.2d 494.

The defendant primarily relies on the Manson factors to establish that the one-photo identification was completely unreliable. We disagree. Our review of the record establishes that the victim had an opportunity to view his assailant before, during, and after the shooting. In addition, the victim’s attention was drawn directly to the shooter when the shooter spoke to him and he turned to the left to face the shooter. He also watched the shooter as he was being shot, before he fell to the ground. Further, the victim led Detective McCleary to the defendant, |7when he informed him that the shooter, whom he had known since childhood as “Four,” was shot at the same intersection in June of 2009. Finally, without hesitation, he positively identified the defendant as the shooter within an hour of the shooting.

To support his misidentifieation defense, the defendant points to four major discrepancies involving: 1) the victim’s physical description of him to the police; 2) the victim’s account of the shooting; 3) the victim’s testimony that he knew him all of his life; and 4) the absence of evidence of establishing that his alias is “Four.”

First, the defendant alleges that the victim’s initial description to the police, which was contained in the application for arrest warrant, was inaccurate. Although the arrest warrant is contained in the appellate record, it was not admitted into evidence in the trial court. Thus, it does not form part of this appeal.

Second, the defendant contends that it was impossible for him to ride a bicycle, as alleged by the victim, because he had a rod in his leg that prevented him from pedaling. While the defendant confirmed this fact at trial, there was no medical evidence presented to substantiate his self-serving testimony. Since there was no physical evidence that contradicted the victim’s account of the events, we cannot disturb the trial court’s reasonable credibility determination on this issue.

Third, the defendant claims that since he spent most of the victim’s childhood in jail, it was impossible for the victim to have known him all of his life. In particular, the victim testified that he saw the defendant consistently throughout his childhood beginning about age five, as the defendant was a family friend. However, when asked to pinpoint exactly when, he responded that he did not recall the exact age or year. He also explained that the defendant went to jail at some | spoint and he did not see him during those years, but he could not recall the exact years. Even though the victim may have been unclear about the frequency of his encounters with the defendant, he was certain that he had seen the defendant often enough to know who he was.

Significantly, the defendant testified that there was approximately eleven months between his jail stints in between 1993 and 1994, where he would have gone back to the housing development to visit his family, although he did not live there. According to his testimony, he was later released again in 2007. In 1994, the victim would have celebrated his fifth birthday. This makes the victim’s account of the events reasonable, and without an irreconcilable conflict, we cannot disturb the trial court’s reasonable credibility determination. Here, the trial court clearly credited the victim’s testimony identifying the defendant as the gunmen, believing he was someone whom he had known since childhood.

Finally, the defendant highlights that there was no record of him ever using the nickname “Four,” until his arrest for the instant crime. As the State points out, this contention is incorrect. In fact, State’s Exhibit 8, a document associated with the defendant’s juvenile detention, established this fact. This further supports the accuracy of the victim’s identification.

Given these circumstances, we find that the identification was reliable. Since there was ample evidence to establish that the victim knew his assailant, we find that the State negated any reasonable likelihood of misidentification. Viewing the evidence in a light favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that the defendant shot the victim, while having the specific intent to kill or inflict great bodily harm upon him. 1^Accordingly, we find there was sufficient evidence to support the defendant’s conviction.

In his remaining assignment, the defendant makes two arguments concerning his sentence: 1) the sentence is excessive; and 2) his counsel was ineffective in not objecting to or filing a motion for reconsideration of sentence.

In addressing his first argument, the defendant concedes that his trial counsel failed to make an oral motion, file a written motion for reconsideration of sentence, or object to the sentence in any way. Therefore, the defendant is precluded from raising the claim of excessive sentence. La. C.C.P. arts. 841 and 881.1; and State v. Tyler, 98-1667, p. 14 (La.App. 4 Cir. 11/24/99), 749 So.2d 767, 775. In Tyler, the defendant failed to file a motion for reconsideration of sentence or to object to the sentence, and this court found that he had failed to preserve his argument for appeal, and he was precluded from arguing that the trial court failed to follow La. C.Cr.P. art. 894.1 in sentencing him.

In reference to his second argument, the defendant contends that if this court’s review of his sentence is precluded due to counsel’s failure to object or file a motion to reconsider the sentence, such lapse on counsel’s part amounts to ineffective assistance of counsel.

As a general rule, claims of ineffective assistance of counsel are more properly raised by application for post-conviction relief in the trial court where a full evidentiary hearing may be conducted if warranted. State v. Howard, 98-0064, p. 15 (La.4/23/99), 751 So.2d 783, 802. However, where the record is sufficient, the claims may be addressed on appeal. State v. Bordes, 98-0086, p. 7 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147. We find the trial judge’s comments during | ^sentencing are adequate; therefore, the record is sufficient and the issue of ineffective assistance of counsel shall be addressed.

For a defendant to be successful in a claim of ineffective assistance of counsel, he must show that counsel’s performance was deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel’s performance is considered ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Id. Likewise, counsel’s deficient performance will have prejudiced the defendant if the errors were so serious as to deprive the defendant of a fair trial. Id. To carry this burden, a defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been differ-

ent.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. This Court has recognized that a defendant must make both showings to establish that counsel was so ineffective as to require reversal. State v. Jenkins, 09-1551, pp. 4-5 (La.App. 4 Cir. 6/30/10), 45 So.3d 173, 176 (citation omitted).

Thus, to prevail on this claim the defendant must show that there is a reasonable probability that, had defense counsel objected to or filed a motion to reconsider sentence and preserved the sentencing issue raised in his first argument, this court would have found merit in that argument. This brings us to a consideration of the defendant’s contention, as expressed in his first argument, that his sentence was excessive.

| nLa. Const. art. I, § 20 explicitly prohibits excessive sentences. State v. Baxley, 94-2982, p. 4 (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Brady, 97-1095, p. 17 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264, 1272, rehearing granted on other grounds, (La.App. 4 Cir. 3/16/99) (quoting State v. Francis, 96-2389, p. 6 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461). However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, 94-2982 at p. 10, 656 So.2d at 979 (citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4th Cir.1987)). Courts must apply these penalties unless they are found to be unconstitutional.

A sentence is constitutionally excessive if it makes no measurable contri-button to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 676; State v. Bonanno, 384 So.2d 355, 357 (La.1980). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 9, 656 So.2d at 979 (quoting State v. Lobato, 603 So.2d 739, 751 (La. 1992)).

A trial judge has broad discretion when imposing a sentence, and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La. 1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 02-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906. As a general matter, appellate review of sentences for excessiveness in Louisiana under the authority of La. Const, art. I, § 20 is a cumulative process which “focuses on a combination of ... factors ... [including] the nature of the offense and the offender ... [and] comparison of the defendant’s punishment with the sentences imposed for similar crimes by the same court and other courts.” State v. Telsee, 425 So.2d 1251, 1253-54 (La.1983) (citations omitted).

In reviewing a claim that a sentence is excessive, an appellate court generally must determine whether the trial judge has adequately complied with statutory guidelines in La.C.Cr.P. art. 894.1, and whether the sentence is warranted under the facts established by the record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99), 744 So.2d 181, 189.

Intertwined with this issue is the defendant’s argument that the trial court erred in failing to consider the factors outlined in La.C.Cr.P. art. 894.1. The trial judge’s failure to comply with La.C.Cr.P. article 894.1 does not automatically render a sentence invalid. The Louisiana Supreme Court has held that although Article 894.1 provides useful guidelines for the determination of the nature and length of a sentence, compliance with its provisions is not an end in itself. State v. Wimberly, 414 So.2d 666, 671-72 (La.1982). Article 894.1 is intended to provide an impartial set of guidelines within which the trial judge’s sentencing discretion may be exercised. State v. Price, 403 So.2d 660, 664 (La. 1981); State v. Douglas, 389 So.2d 1263, 1266 (La.1980). Compliance with Article 894.1 further provides a record which is detailed enough to allow for a reasoned review of allegedly excessive sentences. The articulation of the factual basis for a sentence is the goal 11sof Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, the Louisiana Supreme Court has held that remand is unnecessary, even where there has not been full compliance with Article 894.1. See State v. Boatright, 406 So.2d 163 (La.1981); State v. McDonald, 404 So.2d 889 (La.1981); State v. Martin, 400 So.2d 1063 (La.1981); State v. Douglas, supra.

If the reviewing court finds adequate compliance with Article 894.1, it must then determine whether the sentence the trial court imposed is too severe in light of the particular defendant as well as the circumstances of the case, “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Landry, 03-1671, p. 8 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235, 1239. See also State v. Bonicard, 98-0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184.

The defendant was convicted of attempted second degree murder. He was adjudicated a second felony offender; therefore, the possible sentence ranges from twenty-five to one hundred years. The defendant received the maximum.

In imposing the enhanced sentence, the trial court noted:

This man was in this Court with a murder charge some years ago, and he pled to a[sic] manslaughter, down from a first degree murder, and he is back on attempt [sic] murder at this point. He has not been out of the penitentiary that long.

This demonstrates that the trial court adequately considered the violent and serious nature of the offense, along with the defendant’s criminal history and risk of recidivism, in compliance with Article 894.1.

We acknowledge that maximum sentences are generally reserved for the most serious violations and the worst offenders. Landry, supra. However, a |14review of the jurisprudence establishes that Louisiana courts have affirmed one hundred' year sentences for persons convicted of attempted second degree murder and found to be second felony offenders. See State v. Hills, 98-0507 (La.App. 4 Cir. 1/20/99), 727 So.2d 1215; State v. Hall, 606 So.2d 972 (La.App. 3 Cir.1992). In both cases, the defendants had violent criminal histories. In Hall, the presentence investigation report revealed that defendant was charged with two counts of aggravated battery and one count of attempted second degree murder, while incarcerated for the instant offense.

As in Hall, the defendant, in the instant case, has demonstrated a propensity for violence, and the sentencing judge properly tailored the punishment to fit this particular defendant and this particular crime. The defendant is clearly a danger to society, and the sentence accomplishes the legitimate purpose of protecting society from further victimization by the defendant. Although the defendant received the maximum sentence, we cannot say that the trial court abused its broad sentencing discretion. Accordingly, we do not find that defense counsel’s failure to object to or file a motion to reconsider sentence prejudiced the defendant so as to render his assistance ineffective.

DECREE

The defendant’s conviction for attempted second degree murder and one hundred year enhanced sentence are affirmed.

AFFIRMED.

      . State v. Laneheart, 11-0657 (La.App. 4 Cir. 7/6/11), unpub.

      . Before giving his account of the events, the victim acknowledged that he had prior convictions for possession of various controlled dangerous substances, as well pending charges for unauthorized use and illegal possession of a stolen vehicle.

      . The defendant also makes a cursory assertion that counsel was ineffective for failing to file a motion for new trial, as he had previously indicated in the trial court; however, we find the record inadequate to review such a claim on appeal. See Howard, supra.


author: LANDRIEU, J.

text:
    KINGFISH DEVELOPMENT, L.L.C. v. PRESS IT # 1 NEW ORLEANS, LLC.
    No. 2013-CA-1113.
    Court' of Appeal of Louisiana, Fourth Circuit.
    March 26, 2014.
    Rehearing Denied April 30, 2014.
    M. Claire Durio, Peter S. Thriffiley, Jr., Simon, Peragine, Smith & Redfearn LLP, New Orleans, LA, Counsel for Plaintiff/Ap-pellee.
    Roderick Christopher Patrick, New Orleans, LA, Counsel for Defendant/Appellant.
    Court composed of Chief Judge JAMES F. McKAY, III, Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU, Judge SANDRA C. JENKINS.
   LANDRIEU, J.

_JjThe defendant, Press It # 1 New Orleans, LLC, appeals the trial court’s judgment granting the plaintiffs, Kingfish Development, LLC, petition for eviction and past due rentals. For the following reasons, we reverse the judgment of the trial court.

FACTS AND PROCEEDINGS BELOW

Kingfish Development was the landlord of the premises located at 935 Gravier Street, Suite 100 in New Orleans, Louisiana. In April 2011, Kingfish Development entered into a lease with Press It which allowed Press It to operate a restaurant and bar out of the location. Section 11.A of the lease provided that Kingfish could collect payment from Press It for electrical services “by a separate charge billed directly to Tenant by Landlord and payable by Tenant as Additional Rent within ten (10) days after billing.” Kingfish Development billed Press It for October, November, and December 2012 electrical utilities on January 7, 2013. Press It failed to pay the money owed within ten days of billing.

|2On January 30, 2013, Kingfish Development filed a Petition for Eviction and Past Due Rentals. In the petition, Kingfish Development asked the court to summarily evict Press It from the premises and to award money damages to it for past due rents. Citation and service of the petition and a rule to show cause were made on Press It’s registered agent on January 31, 2013. The hearing on the Rule was set for February 8, 2013.

On the day it was served with the petition and rule to show cause, Press It hand-delivered certified checks in the amounts due for electrical services for November and December to the secretary of Kingfish Development’s attorney. A cover letter included with the certified checks stated that Press It was paying the amount based on advice from its attorney as a “reservation of rights.” The certified checks were not returned to Press It. Later, Press It had another check, this one for February rent, delivered to Kingfish Development. Kingfish Development requested that this check be delivered to its attorney. Press It complied with this request. This check was not returned to Press It.

Press It filed Exceptions of Unauthorized Use of Summary Proceedings, Insufficiency of Service of Process and Insufficiency of Citation, No Right of Action, and No Cause of Action. On February 19, 2013, the exceptions were heard and denied by the trial court. The court then proceeded to trial on the merits. In the judgment rendered in open court on February 20, 2013, the trial court granted Kingfish Development’s petition for eviction of Press It and entered a money | judgment in favor of Kingfish and against Press It for past due rent in the amount of $1,893.95. The judgment required Press It to deliver possession of the leased premises within forty-eight hours of the oral judgment rendered in court. This appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Press It raises three assignments of error, which we consolidate for the purposes of discussion: (1) whether the trial court erred in denying Press It’s exception of improper use of summary proceedings, and (2) whether the trial court erred in evicting Press It because Kingfish Development had accepted rental payments after the filing of its petition for eviction.

DISCUSSION

In its appeal, Press It first argues that the trial court improperly allowed the action to proceed summarily. We agree.

There are three different modes of procedure that may be used in civil matters in Louisiana: ordinary, summary, and execu-tory. La. C.C.P. art. 851. We must first determine whether this matter proceeded summarily or whether the requirements for ordinary process were met.

Ordinary proceedings require a petition, service and citation, and an answer by the defendant. La. C.C.P. arts. 891, 1001, 1201. Summary proceedings are those “conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings.” La. C.C.P. art. 2591. An action to evict a tenant may be tried summarily. La. J4C.C.P. arts. 2592 and 4731. The Code of Civil Procedure states that a summary proceeding “may be commenced by the filing of a contradictory motion or by a rule to show cause, except as otherwise required by law.” La. C.C.P. art. 2593. An answer is not required in a summary proceeding. La. C.C.P. art. 2593.

Although this action was commenced by a “petition” and included citation and service, the record does not contain an answer filed by Press It. As an answer is required in ordinary proceedings, and as this is clearly not an executory proceeding, we conclude that this matter did, in fact, proceed summarily.

We must next consider whether it was proper for the trial court to have awarded monetary damages by summary process. We find that it was not and, therefore, find that the trial court erred in denying Press It’s exception of improper use of summary proceeding.

In denying the exception, the trial court properly cited jurisprudence which allows a landlord to seek both eviction and past due rents. She stated:

Having reviewed the relevant jurisprudence, specifically the holding in U.S. Leasing Corp. v. Keiler, 290 So.2d 427, which is a Fourth Circuit case, which reads in part, “The law is settled that a lessor, upon default of the lessee has the option of either terminating the lease or enforcing its provisions. If he elects to terminate the lease, he may repossess the leased property and enforce payment of the rent which had accrued and had not been paid up to the time the contract was terminated.”
In the case at bar, because the remedy elected by [Kingfish Development] is to seek termination of the lease agreement and for past due rentals, not future rentals, said election comports with the holding in Keiler and does not violate the public policy of this state.

IsWhile this is a correct understanding of Keiler and the related jurisprudence, the trial court erred in applying this jurisprudence to the exception of improper use of summary procedure. Keiler was not a summary proceeding. While the law is clear that a breach of the lease by Press It would entitle Kingfish Development to seek eviction as well as past due rentals, it cannot seek both remedies in a summary proceeding.

Louisiana Code of Civil Procedure article 2592 provides us with the exclusive list of matters that can be heard by summary process. The only enumerated ground applicable to this proceeding is the catch-all provision, “[a]ll other matters in which the law permits summary proceedings to be used.” La. C.C.P. art. 2592(12). An eviction is one of the areas in which the law permits summary proceedings. See La. C.C.P. 4731, el seq. However, nothing in these articles provide that damages can be recovered in a summary eviction proceeding. In Major v. Hall, 262 La. 243, 263 So.2d 22, 24 (1972), the Louisiana Supreme Court held: “Damages are not recoverable on a rule to show cause. C.C.P. art. 2592 does not provide for the recovery of damages in summary proceedings. Damages, in the absence of special provisions, may only be recovered via ordina-ria.”

Had Press It answered the petition, Kingfish Development would have been able to proceed via ordinaria to evict Press It and recover past due rentals in the same proceeding. The Code does not require an eviction to proceed via summary proceedings, but merely provides that one may proceed in that manner. However, since Kingfish Development chose to proceed summarily, it was precluded from seeking a money judgment. The | fitrial court erred in denying the exception of improper use of summary proceeding.

We next turn to Press It’s argument that the trial court erred in granting the eviction because Kingfish Development accepted rentals after the petition for eviction was filed. In its brief, Press It does not argue that it did not breach the lease; rather, it argues that Kingfish Development’s acceptance of the rental payments vitiates Press It’s default. We agree.

It is clear from the record that Press It was in default because it failed to pay the electrical utility payments for October, November, and December 2012 within ten days of billing as required in the lease. However, the issue is whether this default was vitiated by the lessor’s subsequent acceptance of rental payments.

Kingfish Development filed its petition for eviction on January 30, 2012. Press It was served on January 31, 2013. That same day, Press It tendered certified checks to Kingfish Development for the past due utilities which were not returned to Press It. Later, in February, Press It delivered to Kingfish Development payment for February’s rent. This check was not returned to Press It.

Louisiana law is well-settled that the acceptance of rent vitiates default. Courts in this state have consistently held that when rental payments have been accepted after the notice to vacate, the notice is vitiated and the tenant’s possession is maintained. Murphy Oil Corporation v. Gonzales, 316 So.2d 175 (La.App. 4th Cir. 1975); West End Landing, Inc. v. Board of Commissioners, 299 So.2d 418 (La.App. 4th Cir.1974); Arms v. Rodriguez, 232 La. 951, 95 So.2d 616 (1957); Four Seasons, Inc. v. New Orleans Silversmiths, 223 So.2d 686 (La.App. 4th Cir.1969); Canal Realty & Improvement Company v. Pallet, 217 La. 376, 46 So.2d 303 (1950).

The trial court found as a matter of fact that Press It “did not tender payment for outstanding rentals until after plaintiff filed suit for eviction.” Accepting this factual finding, we conclude that the trial court erred in applying the law. The lessee’s default was vitiated by the landlord’s acceptance of rental payments after the notice of eviction was issued. The trial court erred in finding otherwise.

CONCLUSION

For the above reasons, we reverse the trial court’s judgment granting Kingfish Development’s petition for eviction and past due rentals.

REVERSED.

BONIN, J., Dissents With Reasons.

BONIN, J., Dissents With Reasons.

|jl respectfully dissent.

Press It # 1 New Orleans, LLC’s contention that Kingfish Development accepted payment for past due utility rentals as well as for the February base monthly rent (which would be for a period beyond the time the notice indicated the lease would be terminated) after filing its action for eviction and for past due rent, thus vitiating its request for these past due amounts, is an affirmative defense because it will have the effect of defeating on the merits Kingfish Development’s claim for past due utility rentals. See Allvend, Inc. v. Payphone Commissions Co., Inc., 00-0661, pp. 5-6 (La.App. 4 Cir. 5/23/01), 804 So.2d 27, 30. Accordingly, Press It # 1 New Orleans bore the burden of proving its affirmative defense at the hearing. Id., p. 6, 804 So.2d at 30. After reviewing the record, I conclude that the trial judge was not clearly wrong by her implicit factual finding that Press It # 1 New Orleans did not carry its burden to establish that King-fish Development accepted the late-paid utility bills or the February rent. I would affirm the order of eviction.

      . The lease was subsequently amended in January 2012.

      . This hearing was reset to February 19, 2013 due to a court emergency.


author: PETERS, J. COOKS, J.,

text:
    STATE of Louisiana v. Mario SURUS.
    No. 13-903.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.

      Michael Harson, District Attorney, Christine B. Roberts, Assistant District Attorney, Fifteenth Judicial District, Lafayette, LA, for Appellee: State of Louisiana.
    Albert M. Karre, Jr., Karre Law Office, Lafayette, LA, for Defendant/Appellant: Mario Surus.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

_JjThe defendant, Mario Surus, filed an application for post-conviction relief in the trial court seeking to have his conviction for a violation of La.R.S. 40:971(B)(l)(b) set aside. The trial court rejected that application, and the defendant filed an application for supervisory relief in this court. For the following reasons, we deny the application and affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

The underlying facts in this supervisory writ application are not in dispute. The defendant is a citizen of the nation of Israel and a lawful, permanent resident of the United States. On November 4, 2009, the State of Louisiana (state) charged him by bill of information with attempting to obtain possession of hydrocodone by misrepresentation, fraud, forgery, deception, or subterfuge, a violation of La.R.S. 40:971(B)(1)(b). On March 25, 2010, the defendant changed his former not-guilty plea to guilty as charged.

Immediately before entering his guilty plea, the defendant completed a Guilty Plea Form acknowledging his understanding of the rights he was waiving by not proceeding to trial, the maximum and minimum sentences he was facing by pleading guilty, and a proposed plea recommendation by the state in the event he chose to plead guilty. Additionally, the state provided him with a written form containing the conditions of probation applicable in the event the trial court accepted his guilty plea and placed him on probation.

At the plea hearing, the trial court questioned the defendant to determine the free and voluntarily nature of the plea and advised him of the rights he was waiving by pleading guilty. After the state provided the trial court with a factual |2basis for the plea, the trial court accepted the defendant’s plea and sentenced him, pursuant to the terms of the state’s plea recommendation, to serve two years at hard labor, suspended the sentence, and placed him on supervised probation for a period of eighteen months.

On September 26, 2011, the defendant completed his sentence and received his first-offender pardon as provided for in La.R.S. 15:572. Shortly thereafter, upon returning from Israel, the defendant was temporarily detained by airport authorities because of his felony conviction. He claims that nothing came of this detention, but on May 12, 2012, he received a letter from what he described as the “Immigration Court” informing him that the conviction mandated an “automatic” deportation. Thereafter, on July 9, 2012, he received a summons from the immigration court ordering him to appear for a hearing on December 13, 2012. Apparently the December 13, 2012 hearing was continued because, according to the defendant, at the time of the June 7, 2013 hearing giving rise to this supervisory writ application, the immigration proceeding was “ongoing.”

On April 4, 2013, the defendant filed an application for post-conviction relief with the trial court asserting that his Sixth Amendment rights had been violated because his attorney failed to advise him of the consequences his guilty [-¡plea might have on his immigration status. This failure, he argued to the trial court, caused his guilty plea to be involuntary.

The trial court held a hearing on this issue on June 17, 2013, with only the defendant presenting testimony. At the hearing, the defendant testified that after his December 15, 2009 arraignment, he was appointed counsel through the Lafayette Parish Indigent Defender’s Office, and, although he attempted to contact his counsel five or six times, the first time they met was March 25, 2010, the day he entered his plea. After speaking with his appointed counsel for a few minutes, he agreed to plead guilty in exchange for an eighteen-month probation sentence. He testified that his counsel did not question him concerning his citizenship status. The defendant asserts that his appointed counsel’s failure to advise him that his legal status in the United States might be in jeopardy if he chose to plead guilty, i.e., automatic deportation, constitutes ineffective assistance of counsel. He stated that had he known of the possibility of deportation, he would have asked his attorney to negotiate a better deal and, if that were not possible, he would not have entered the plea.

Although the defendant testified extensively at the June 17, 2013 hearing concerning the inadequacy of his discussions with his trial attorney, he failed to express any such concerns at the March 25, 2010 hearing when he entered his plea. In fact, he admitted at the June 17, 2013 hearing that when he entered his plea, the trial court asked him at least three separate times whether he had adequate time to speak with his attorney concerning his case before entering his plea and that he had responded, “[y]es sir” all three times. Additionally, he admitted that he was in fact guilty of the possession charge.

|4When questioned by the trial court concerning what he could expect from a judgment setting aside his conviction given the fact that he was guilty of the offense charged, the defendant said that he hoped to get a new attorney with immigration law experience, who could negotiate a better deal. The following exchange took place between the trial court and the defendant:

TRIAL COURT: Sir, is there some particular evidence that you are aware of that you wanted to communicate to your lawyer so that that lawyer could present in court at your trial that would’ve resulted in a not guilty verdict?
DEFENDANT: Yes, sir.
TRIAL COURT: Share with me what that is.
DEFENDANT: I don’t have them right now, but I’m going to tell you like this. I was not pleading guilty if I know it was going to cost me automatic deportation. All I’m saying is that I want, you know what I’m saying, presentation from a public defender, and he was supposed to tell me, like, about deportation or, you know, something else instead, you know what I’m saying, and go further with the case or go further with the case. I would hire a better lawyer. I would hire immigration lawyer. I would do something, you know what I’m saying, to, you know, talk to the public defender, the judge, to try to get something to not get deportation, you know.
TRIAL COURT: Correct. And the thing to not get deported would be not guilty.
DEFENDANT: I was not — I would plead not guilty and try to fight the case, you know. But at the time I was sitting down, we were in the back for five minutes, he told me “you’re going to plead guilty, you’re going to get only 18 months probation, you’re not going to get jail time,” so the only thing I need to say, okay. I was just trying to get out the court, you know. It was not in my knowledge that I’m going to get deported and it’s going to cost me, you know what I’m saying, like, problems in the future. I understand where you’re coming from, but I was not having knowledge of all that, you know.
TRIAL COURT: Right. As you sit here now, though, assuming you are successful today and I remove your guilty plea and reinstate the not guilty plea, what makes you think there will be a different outcome?
COUNSEL FOR THE DEFENDANT: Different attorney, different attorney.
| ¿DEFENDANT: Maybe different attorney. Like I said in the beginning, like, if I had the knowledge, maybe get a better attorney, maybe find some different evidence in the case or something.
TRIAL COURT: Attorneys don’t manufacture evidence.
DEFENDANT: Yeah, I know.
TRIAL COURT: ... What information do you have now that you think would convince someone that you did not commit this crime?
DEFENDANT: I don’t have no evidence to convince nobody.
TRIAL COURT: You do not have any evidence that would convince anybody that you are not the person who committed this crime?
DEFENDANT: I’m the person who committed this crime, but I was kind of twisting, like, something that happened without my knowledge, okay, and I pled guilty because it was my stupid fault, you know, so I just pled guilty, you know.
TRIAL COURT: Now I’m very confused. You are telling me you are the person who committed the crime but you didn’t know that you were committing the crime when you committed it?
DEFENDANT: Yes sir.

The defendant then testified that when he broke an ankle, his treating physician gave him a prescription for hydrocodone. When he could no longer refill that prescription, he asked a family member for help because he did not have insurance. The family member told the defendant that he knew a doctor who would give him a prescription and, soon thereafter, produced a prescription from the doctor. The defendant never spoke to the family member’s doctor, and the doctor never examined the defendant. When he produced the prescription at the pharmacy, the defendant was taken into custody.

The state called no witnesses at the June 17, 2013 hearing and acknowledged in argument to the trial court that based on Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), the defendant’s trial counsel was ineffective in that he did not Radvise the defendant of the consequences of the guilty plea with regards to his immigration status.

After hearing the arguments of counsel, the trial court rejected the defendant’s post-conviction relief application. In doing so, the trial court concluded that the defendant’s trial counsel provided ineffective assistance of counsel during the pretrial stage of the proceedings, but further concluded that the ineffective assistance of counsel did not prejudice the defendant and did not alter what would otherwise have been the ultimate outcome of the proceedings. Specifically, the trial court noted that the defendant’s only argument was his hope of negotiating a better deal with the prosecutor and that he offered no evidence to show that the state would have further negotiated the charge. With regard to the lack of evidence on this point, the trial court noted:

So that evidence — there was no reason to excuse that lack of presentation of evidence. And so, therefore, there is no reason for me to conclude — I asked several times what outcome could have been different — there was no reason for me to conclude that even if this offender, Mr. Surus, had been represented by the most able criminal defense attorney, the most able immigration attorney, that that attorney would have been able to achieve the result that this — that Mr. Surus asserts he desires.

The defendant then filed this application for supervisory writs.

OPINION

The elements of an ineffective assistance of counsel analysis are well settled:

The defendant’s claim of ineffective assistance of counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). The defendant must show that counsel’s performance was deficient and that he was prejudiced by the deficiency. Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable 17probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra, 466 U.S. at 693, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992).

State v. Griffin, 02-1703, p. 9 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40, writ denied, 03-809 (La.11/7/03), 857 So.2d 515.

With regard to this ineffective assistance of counsel issue, the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 368, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010), stated:

In the instant case, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction. See 8 U.S.C. § 1227(A)(2)(B)® (“Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance ..., other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable”). Padilla’s counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses. Instead, Padilla’s counsel provided him false assurance that his conviction would not result in his removal from this country.

While finding that Padilla’s trial counsel had an obligation to inform him of the consequences of his guilty plea as it related to his immigration status, the Supreme Court did not address the second prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Instead, it remanded the matter to the lower court for the determination of the prejudice issue.

We do not have to reach the question of whether the trial court erred in finding that the second prong of Strickland was not met by the defendant, because we find that the defendant did not timely file his application for post-conviction relief. Louisiana Code of Criminal Procedure Article 930.8(A)(1) provides that:

ls(A) No application for post-convietion relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922, unless any of the following apply:
(1) The application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his attorney.

It is not disputed that more than two years had lapsed after the defendant’s conviction and sentence became final before he filed his motion for post-conviction relief. He claims the La.Code Crim.P. art. 930.8(A)(1) exception based on his assertion that he was not aware of the automatic deportation penalty until May of 2012. However, in response to a question by the state at the June 17, 2013 hearing, the defendant suggested that he was aware of the connection between his criminal record and his immigration status, but that he was not aware of the automatic deportation elements. The defendant made it clear to the trial court that had he known the penalty was automatic deportation, he “might” have tried to obtain a different lawyer, “maybe an immigration lawyer to maybe push the court a little bit.” In other words, the defendant was well aware that his immigration status could be affected by his criminal record at the time he pled guilty, but that he “didn’t know it was going to cost [him] that much problems.”

The defendant’s complaint involves dissatisfaction with what may be the result of his immigration problems and not his lack of knowledge of the relationship between his immigration status and his criminal record at the time of his plea. Thus, he does not fit within the exception provided by La.Code Crim.P. art. 930.8(A)(1), and his application for post-conviction relief is untimely.

Additionally, the defendant was no longer in custody when he filed his application for post-conviction relief. In fact, he had received his first-offender pardon as provided for in La.R.S. 15:572, approximately one and one-half years |9before filling his application. Louisiana Code of Criminal Procedure Article 924(1) provides that “[a]n ‘application for post conviction relief means a petition filed by a person in custody after sentence following conviction for the commission of an offense seeking to have the conviction and sentence set aside.” (Emphasis added.) Furthermore, La.Code Crim.P. art. 924(2) defines custody as “detention or confinement, or probation or parole supervision, after sentence following conviction for the commission of an offense.” Simply stated, a defendant cannot bring an application for post-conviction relief after the sentence is satisfied. State v. Smith, 96-1798 (La.10/21/97), 700 So.2d 493.

DISPOSITION

For the foregoing reasons, we find that the defendant is not entitled to postconviction relief. We deny his application for supervisory writs.

WRIT DENIED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissenting.

|,The majority disposes of Defendant’s writ application by finding it wan not timely filed. The timeliness of the present application for post-conviction relief was discussed at the evidentiary hearing. It was not disputed that the application for post-conviction relief was filed more than two years after Defendant’s conviction and sentence became final. However, the trial court found the application was timely filed pursuant to La.Code Crim.P. art. 930(8)(A)(1), which provides an exception to the two-year time limitation if “[t]he application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his attorney.” The trial court found the exception applicable in this case, and I find no error in that conclusion.

The majority finds the exception does not apply because “defendant’s complaint involves dissatisfaction with what may be the result of his immigration problems and not his lack of knowledge of the relationship between his immigration status and his criminal record at the time of his plea.” I cannot agree with this interpretation and find the record amply supports Defendant’s contention that he was wholly unaware of the effect his guilty plea would have on his immigration status at the time of the plea. There was no error in the trial court’s conclusion that the application for post-conviction relief is timely.

| gDefendant seeks to withdraw his guilty plea because he was never informed by his defense counsel or the State that the plea could result in any consequence to his immigration status. In this case, because of the conviction, he is now subject to automatic deportation. Defendant has a family he lives with in Louisiana.

When Defendant realized he was subject to automatic deportation as a result of his guilty plea, he immediately filed an application for post-conviction relief with the trial court. In it, he asserted that his Sixth Amendment rights had been violated because his attorney failed to advise him that pleading guilty plea would affect his immigration status in the United States. An evidentiary hearing was held.

At the evidentiary hearing, the State and trial court both agreed with Defendant that based on Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), Defendant’s court appointed counsel was ineffective by failing to advise him of the consequences the guilty plea would have on his immigration status. The facts of Padilla are similar to the facts in this case in that the conviction was for unlawful drugs and involved the defendant’s acceptance of a guilty plea which subjected him to automatic deportation. Despite its finding that defense counsel was ineffective, the trial court still rejected Defendant’s post-conviction relief application, finding Defendant failed to meet the second prong of the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) — that he was prejudiced by the ineffective assistance of counsel.

At the evidentiary hearing, Defendant testified that, despite numerous prior attempts to meet with his court appointed attorney, he only met with him once, just for five minutes prior to the guilty plea hearing. He acknowledged the reason he accepted the plea was that it involved no jail time. But he reiterated had he known | she was subject to deportation because of the guilty plea he would have “tr[ied] to get more time from the court and tr[ied] to get me a better lawyer ... Try to go harder with the case.”

Padilla held that a criminal defense attorney is obligated to affirmatively and accurately advise a non-citizen client about the deportation consequences of a plea “when the deportation consequences are truly clear.” Id. at 1483. There seems little doubt in this case that the deportation consequences facing Defendant in this case were “truly clear,” and should have been communicated to Defendant.

Of particular interest is Marroquin v. United States, 480 Fed.Appx. 294 (5th Cir. 2012). In that case, the defendant pled guilty to one count of transporting an illegal alien within the United States for financial gain in violation of federal law. Upon her release, the United States Immigration and Custom’s Enforcement took custody of the defendant for purposes of deportation. The defendant filed a writ alleging Padilla applied retroactively to her petition and her counsel therefore had a constitutional obligation to inform her regarding the potential deportation consequences of a guilty plea, and that her counsel failed to do so, constituting prejudice under Strickland. The district court agreed that Padilla applied retroactively to her case, but concluded she had not met her burden under Strickland. The United States Fifth Circuit Court of Appeal affirmed on the grounds that Padilla does not apply retroactively. The majority opinion did not address whether the defendant met her burden to show prejudice under Strickland. Judge Dennis authored a concurring opinion, agreeing with the majority’s finding that Padilla does not apply retroactively, but expressing his opinion on the prejudice issue. In part, Judge Dennis wrote:

“Defendants have a Sixth Amendment right to counsel, a right that extends to the plea bargaining process. During plea negotiations defendants are ‘entitled to the effective assistance of competent counsel.’ ” Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012) (citations omitted) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)) Inciting Missouri v. Frye, - U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010)); Hill v. Lockhart, 474 U.S. 52, 54, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The right to effective representation during the plea process requires defense counsel to take adequate steps to “ ‘[p]reserv[e] [a non-citizen defendant’s] right to remain in the United States’ ” and “ ‘preserv[e] the possibility of discretionary relief from deportation.” Padilla, 130 S.Ct. at 1483 (quoting INS v. St. Cyr, 533 U.S. 289, 323, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)); see also id. at 1485 (“For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client’s plea.”). The familiar two-pronged ineffective assistance analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to alleged violations of this right. Padilla, 130 S.Ct. at 1482. Strickland’s prejudice prong “ask[s] whether ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id. (quoting Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052).
In a series of decisions culminating in Padilla, Lafler and Frye, the Supreme Court has made clear that “plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process[ ] ... that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.” Frye, 132 S.Ct. at 1407. “Indeed, this Circuit has observed that providing counsel to assist a defendant in deciding whether to plead guilty is ‘[o]ne of the most precious applications of the Sixth Amendment.’ ” United States v. Rivas-Lopez, 678 F.3d 353, 356-57 (5th Cir. 2012) (alteration in original) (quoting United States v. Grammas, 376 F.3d 433, 436 (5th Cir.2004)).

Marroquin, 480 Fed.Appx. at 297-98.

There was no dispute that Defendant in this case received ineffective assistance of counsel during the plea negotiations. The trial court in this matter agreed that counsel’s performance was deficient, but apparently believed Defendant’s plea was still effective because it was voluntarily given. Judge Dennis in his concurrence noted that the violation of a defendant’s right to effective representation by defense counsel during the plea bargaining process cannot “be erased by a trial court’s general and talismanic plea colloquy statement after the bargaining process is complete.” Id. at 298. He notes the United States Supreme Court in Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 1407, 182 L.Ed.2d 379 (2012) held the holding of a fair |5trial cannot “inoculate [a trial counsel’s] errors in the pre-trial process” from collateral attack under Strickland. Id. at 298. Judge Dennis finds that a trial judge’s plea colloquy warnings likewise cannot super-cede errors made by defense counsel during the plea bargaining process. In detail on this issue, Judge Dennis explained:

The Supreme Court has long contrasted the unique and critical obligations of defense counsel during the plea bargaining process with the far more limited role of the trial court to ensure a minimally valid guilty plea. “[CJounsel’s function as assistant to the defendant [gives rise to] the overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions” after “makfing] reasonable investigations.” Strickland, 466 U.S. at 688, 691, 104 S.Ct. 2052. Counsel has “the critical obligation ... to advise the client of ‘the advantages and disadvantages of a plea agreement.’ ” Padilla, 130 S.Ct. at 1484 (quoting Libretti v. United States, 516 U.S. 29, 50-51, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995)). Thus, the Padilla court stressed that “[i]t is quintessentially the obligation of counsel to provide her client with available advice about an issue like deportation.” Id. at 1484 (emphasis added).
Accordingly, the judicial plea colloquy is no remedy for counsel’s deficient performance in fulfilling these obligations. The colloquy merely “assistfs] the district judge in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary.” McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Moreover, because a judge “cannot investigate the facts[ ] ... or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional,” a judge cannot “discharge the obligations of counsel for the accused.” Powell v. Alabama, 287 U.S. 45, 61, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Indeed, Rule 11 mandates that “the court must not participate in [plea] discussions.” Fed. R.Crim.P. 11(c)(1).

Id. at 298-99.

Judge Dennis further notes the conclusion that a trial court’s deportation warnings do not foreclose a showing of prejudice is confirmed by the Padilla Court’s own discussion of such warnings.” Id. at 299. Padilla specifically noted “the severity of deportation — ‘the equivalent of banishment or exile’ — only underscores how critical it is for counsel to inform her non-citizen client that he faces a risk of deportation.” Padilla, 130 S.Ct. at 1486.

IsAs set forth earlier there is nothing in the record to dispute that Defendant was never informed that he faced automatic deportation, or that the trial court informed him of this at the plea colloquy hearing. Defendant testified he would never have accepted the plea were he aware of the automatic deportation that it entailed.

The trial court in the present case focusing on the prejudice issue rests its finding solely on whether Defendant would be able to prove he was innocent of the charges at trial. However, this was not the appropriate inquiry. Whether or not Defendant could establish his innocence (and he candidly admitted he likely could not) is not dispositive of the deportation issue. Defendant in brief points out that “[wjhere drug offenses are concerned, federal immigration law specifically allows discretionary relief for crimes that do not require mandatory deportation.” Defendant maintains he could have had the opportunity to negotiate a plea for lesser and included offense, one which would not have resulted in automatic deportation. Defendant also maintains because he had no prior criminal history he may have been a candidate for pre-trial diversion as well. Judge Dennis noted the United States Supreme Court has repeatedly “recognized that ‘[preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.’ ” Marroquin, 480 Fed.Appx. at 300, (quoting Padilla, 130 S.Ct. at 1483) (quoting INS v. St. Cyr, 533 U.S. 289, 323, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)). This would seem particularly so in the instant case as Defendant has a family here in Louisiana.

In the present case, when Defendant was not advised of the consequences of his felony plea to attempted possession of a controlled dangerous substance, he was deprived of an opportunity to seek discretionary relief from automatic deportation. Defendant unequivocally maintained throughout these proceedings he would not have pled guilty had he known of the mandatory deportation |7consequences. He maintained he would have either sought a different plea bargain, sought the services of an immigration attorney, or proceeded to trial. Thus, I find Defendant met his burden of proving prejudice under Strickland. For these reasons, I respectfully dissent from the majority’s opinion and would grant Defendant’s writ.

      . The state informed the trial court that "on July 6, 2009, Mario Surus attempted to possess a controlled dangerous substance by fraudulent means and that occurred in Lafayette Parish, Louisiana.” The trial court then questioned the defendant, who admitted that the factual situation provided by the state was accurate, admitted that he committed the offense, and asserted that it was his idea to plead guilty to the offense.

      . The only evidence of the “automatic deportation” aspect of this case is the defendant’s testimony as he did not produce this letter at the hearing and, therefore, it did not become a part of the evidentiary record.

      . The defendant did offer and file this notice in the record at the time of the hearing giving rise to this supervisory writ application. However, the notice makes no reference to any "automatic deportation” requirement based on the defendant’s conviction. It mere-Iy informs the defendant of the date of the hearing, his right to an appointed attorney or the attorney of his, and the possible consequences of his failure to appear.

      .There is no evidence to suggest that the defendant ever advised his trial counsel that he was a citizen of another country during their pre-plea discussions.

      . It should be noted the United States Supreme Court did not address the issue of whether the defendant was prejudiced by the defective performance of his counsel. The supreme court remanded to the lower court for a determination of the prejudice issue.