text:
    STATE of Louisiana, Appellee v. Linda Kate Keeney PASSANITI, Appellant.
    No. 49,075-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2014.

      Peggy Sullivan, Monroe, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Dale 6. Cox, Tommy J. Johnson, Laura O. Wingate Fulco, Assistant District Attorneys, for Appellee.
    Before BROWN, CARAWAY, and LOLLEY, JJ.
   BROWN, Chief Judge.

| defendant, Linda Kate Keeney Passan-iti, was indicted as a principal to second degree murder, in violation of La. R.S. 14:24 and 14:30.1 (count one); with conspiracy to commit second degree murder, in violation of La. R.S. 14:26 and 14:30.1 (count two); and with three counts of principal to forgery (forgeries of a financial power of attorney, a health care power of attorney, and a will), in violation of La. 14:24 and 14:72.

A jury returned a verdict of guilty on all charges. Defendant’s motions for post-verdict judgment of acquittal and new trial were denied. She was sentenced to life imprisonment at hard labor without benefits on count one; 30 years at hard labor without benefits on count two; and 10 years at hard labor without benefits on each of counts three, four, and five. The sentences were imposed consecutively. Defendant has appealed. For the following reasons, defendant’s convictions are affirmed, her life sentence without benefit of parole is affirmed and the sentence for counts two, three, four, and five are amended only to the extent that the parole restrictions are deleted.

The Players

Ernest Luttrell, a hay farmer, owned 60 acres of land in Keithville, Louisiana. On July 25, 2010, the 73-year old Luttrell was shot to death in his home by Eric Crain. To avoid the possibility of capital punishment, Crain pled guilty to first degree murder with a sentence of life imprisonment without the benefit of parole and agreed to testify at defendant’s trial.

Tina Vanmoerkerque lived on the Lutt-rell property; she lived with Chris Tope, her boyfriend, in a small camper trailer behind the Luttrells’ 12home. Chris worked as a handyman and Tina worked as a housekeeper and personal assistant to Loretta Luttrell. Initially charged with first degree murder, Tina Vanmoerkerque pled guilty to second degree murder with a sentence of life imprisonment without the benefit of parole and agreed to testify at defendant’s trial.

Co-conspirator, Loretta Bobbie Moore Luttrell (Ernest’s domestic partner — they were not married but lived together for more than 50 years) was arrested and charged with the first degree murder of Ernest. Both Ernest and Loretta had been diagnosed with dementia. After her arrest, Loretta was diagnosed with severe Alzheimer’s disease and declared mentally incompetent. Loretta is now housed in a facility for Alzheimer’s patients. Defendant, Linda Kate Keeney Passaniti, is Loretta’s daughter.

Discussion

Sufficiency of the Evidence

Defendant argues that the evidence was insufficient to convict her. In the opening statement to the jury and in brief before this court, defendant admits guilt on count five, the forgery of Ernest Luttrell’s 2010 testament. Specifically, defendant claims that the only evidence that she “masterminded the scheme .to kill Ernest Luttrell” came from two witnesses, Tina Vanmoerk-erque and Tawanda Daughtry, who she asserts were not credible. Tina’s testimony was that Loretta had her hire Eric Crain to kill Ernest for $1,000; Daughtry was a cellmate of defendant who testified to conversations with defendant wherein she confessed to the crime.

|aThe Agreement to Kill Ernest

Tina testified that sometime during the spring of 2010 she heard the following statements made by defendant and Loretta during phone conversations (the speaker phone was on):

• defendant needed money;
• defendant instructed Loretta that if putting “him” in a nursing home does not work, she was to tell Tina to get the hit man to kill Ernest;
• Loretta said that she agreed;
• Loretta stated that she would speak to Tina about hiring a contract killer;
• defendant instructed Loretta that she needed to put more pressure on Tina to find a hit man;
• Loretta stated that Tina knew a hit man to take care of Ernest.

Loretta told Tina to find someone who would kill Ernest for $1,000 or she would be thrown off the property; she also gave Tina one of Ernest’s handguns.

Ernest’s Murder

On July 24, 2010, Tina ran into Eric Crain, the ex-boyfriend of her daughter, at a convenience store. According to Crain, they talked and made plans to hang out later that evening. The two met at a McDonald’s Restaurant on Mansfield Road and while they were driving around, Tina asked him if he wanted to make some “quick money.” She told Crain that:

• she needed him to kill her employer’s husband;
• Loretta, the intended victim’s wife, would pay him $1,000;
k!» she . (Tina) and her employer’s husband were “having a confrontation.”

Crain agreed when he found out there was money involved, and Tina called Loretta to tell her that she had someone to do “the job” and that she would call her in the morning. Crain testified that his willingness to participate in Ernest’s murder could have been based in part on the large amount of alcohol and drugs he had ingested during the course of that day and into the next one. He and Tina ordered pizza, “one thing led to ánother” and they had sex. They drank together, he took some more pills, and Tina had to go out around 2:00 a.m. to deal with her boyfriend, who was threatening to throw her out of their trailer.

During their time together at the motel, Tina gave him a snub-nosed chrome .44 magnum revolver that she said was hers, along with the following instructions:

• the killing would occur the next day;
• Loretta would be leaving to go to church early;
• Tina would drive him to the Luttrell home and drop him off;
• he was to enter through the side gate of the home;
• Loretta would leave the side door unlocked and turn the house alarm off;
• Ernest would either be asleep or in his recliner watching TV;
• he was supposed to make it look like a robbery;
k* he was supposed to take Ernest’s guns from the gun safe, his keys from a bowl on the kitchen counter, and his truck.

Tina told him to take the truck since she was dropping him off. After he was finished, Crain was to meet Tina at the Wal-mart on Pines Road. Crain testified that Tina told him that this information was from Loretta, but he did not ever speak to Loretta. He also testified that Tina never mentioned defendant’s name or alluded to her identity. The only names he heard regarding Ernest’s murder were Tina’s and Loretta Luttrell’s.

Tina testified that on the morning of Sunday, July 25, 2010, she called Loretta to tell her they were on their way. Loretta told Tina she was about to leave the house to go to church. On the drive to the Luttrell home, Tina and Crain talked through the scenario one more time. Tina dropped Crain off at the mailbox at the driveway to the Luttrell residence. Crain testified that he entered the house, shot and killed Ernest, and stole his keys, four guns and his truck. Dr. James Traylor, an expert in forensic pathology, testified that Ernest died from six gunshot wounds.

Crain was quickly arrested. While in jail, he called his boss and admitted to killing Ernest Luttrell, unaware that a news crew was present at his place of employment and recording his phone call on live air. Tina was arrested shortly thereafter. Both were charged with first degree murder, as was Loretta Luttrell (but as noted previously, because of her advanced dementia, she was declared incompetent to stand trial and remains in a treatment/nursing facility).

| (Mineral Rights Sale

In 2008, Ernest sold the mineral rights to his 60-acre tract for $400,000, purchased a $300,000 annuity in his and Loretta’s name (with the surviving owner listed as the beneficiary of the annuity) and some CDs. He paid off the remaining balance of a loan, and deposited the remainder of the funds into accounts jointly owned with Loretta.

Loretta’s half-sister, Rosie Jones, testified that defendant called her, upset about the sale of the mineral rights. Defendant asked Rosie if she could help defendant talk Ernest and Loretta out of the deal. According to defendant, they could make more money if they would wait. Rosie said that defendant was “really angry, frustrated, very upset” about Ernest’s sale because she wanted Ernest’s home and land; Kimberly Passaniti, defendant’s daughter, was also upset about the sale because she had been told she would be getting Ernest’s land and she wanted it to include the mineral rights. Tina testified that defendant and Kimberly refused to talk to Loretta for a long time because of the sale.

The 2008 Notarial Testaments

On April 24, 2008, Ernest and Loretta prepared notarial testaments. In their wills, each provided that should he or she die first, the surviving partner was to receive everything. Both testaments stated that if Ernest and Loretta were to die at the same time, Rosie Jones would inherit the land and defendant and Kimberly would inherit the money. Ernest also told Rosie and her husband that, should anything happen to him and Loretta, they needed to go to the house as soon as possible and secure the wills. Ernest |7gave them the alarm code to the house as well as the safe combination and the business card of the attorney who had prepared the wills. Ernest did not trust defendant and her husband, Tony, and advised Rosie not to talk to them about anything and not to trust anything either of them said.

Change in Defendant’s Financial Condition

Some time in 2008, defendant quit her job as a professor at a local college in San Antonio and adopted a four-year-old child. She taught chemistry and mathematics at various universities. Her husband later lost his job in 2009. This put them in financial straits. Defendant allegedly has a bachelor’s degree in chemistry, as well as masters’ and doctoral degrees in applied mathematics from Johns Hopkins University. Tony Passaniti received a military retirement and had worked as a physician’s assistant once he retired from the Air Force.

Kimberly Passaniti testified that Ernest, sometime between 2008 and 2010, promised to pay off a $70,000 debt she had accumulated in student loans. However, he refused to honor this commitment. Kimberly testified that she was not mad about it, and she did not remember “anything significant” about her mother’s reaction to the news. On the other hand, Rosie testified that Loretta was aggravated about Ernest’s refusal to pay off Kimberly’s student loans. She told Rosie that Ernest had agreed to pay Kimberly’s tuition, then later said that he wasn’t going to pay it, but would give her $1,000. Rosie also testified that Loretta called her in June of 2010 |sto express concern about Mildred Jackson, Ernest’s sister. Loretta told Rosie that defendant, Loretta, and Kimberly, were mad because they thought that Ernest was going to give “everything” away to Mildred. For that reason, Loretta tried to prevent Ernest from visiting his sister or her son.

Diagnosis of Dementia

In 2009, Ernest and Loretta visited Dr. James May to be tested for dementia. Dr. May, an expert in the field of family medicine and a board certified practitioner, testified that both had mild dementia, but Loretta’s condition was significantly more pronounced. He prescribed Aricept, a medication which slows the rate of dementia, to Ernest. Tina testified that Loretta was responsible for giving Ernest his morning and evening medications. Tina worked for Loretta for approximately five years. During that time, Loretta’s condition deteriorated to the point where she was dependent upon Tina for almost everything.

Phone Conversations

In 2010, not long before Ernest’s murder, defendant learned about the wills Ernest and Loretta had written in 2008. Tina testified that defendant was furious when she found out that Rosie would get the land and she and Kimberly were to get the money. Tina overheard several phone conversations between defendant and Loretta, who often talked with her phone on “speaker” mode:

}⅜* defendant stated that she wanted more and instructed Loretta to change her will;
• defendant stated that she wished that Ernest was dead;
• defendant told Loretta to increase Ernest’s Lortab and take away his Ari-cept to “drive him crazy or kill him;”
• defendant stated that Ernest would “be better off dead.”

During one of these conversations, Loretta told defendant that if Ernest were dead, she could pay off Kimberly’s college expenses. According to Tina, both Loretta and defendant were angry that Ernest had reneged on his promise to pay off Kimberly’s school loans.

Rosie testified that when defendant found out about the 2008 wills executed by Ernest and Loretta, she called her some time during the last week of June 2010 to question Rosie about the details of these wills. Defendant, who was agitated and upset, told Rosie that it was Loretta who told her about the wills. Defendant told Rosie that she was angry that Rosie herself had not told her about the testaments. When Rosie told defendant that she did not want anything from Ernest and Loretta, but would “sign her rights away,” defendant calmed down and her attitude and tone changed. Defendant called her several times, as did Loretta and Kimberly, asking her to sign something renouncing her inheritance (under the 2008 wills). Nothing was done, and then after the murder of Ernest, when Loretta was arrested, defendant called Rosie again asking her if she would sign a document that renounced “her rights” to the Luttrells’ property.

| inThe Health Care and Financial Power of Attorneys

Defendant mailed Tina a power of attorney (“POA”); Tina testified that she, Loretta and defendant forged a health care POA (“HCPOA”) for Ernest. The state entered a copy of this document into evidence; it designates defendant as having POA over the health care of Ernest Lutt-rell, is dated April 14, 2010, and is notarized by Ronald Norman. Tina testified that she signed as a witness, forged her own daughter’s name as the other witness, and saw Loretta sign Ernest’s initials and his name at the end of the document. Tina was adamant that Ernest never signed this or any other document that she signed as a witness for Loretta. Tina testified that she drove Loretta to Norman’s store to have this POA notarized. Norman testified that he notarized the POA documents in the instant case without reading them and without requesting identification. He further stated that when he notarized the April 14, 2010, HCPOA, Loretta was alone when she came into his store; neither Ernest nor any witnesses were present.

Tina testified that while there was more than one HCPOA, she only participated in one forgery. Tina identified Loretta’s handwriting on another HCPOA, and noted that she was familiar with Loretta’s handwriting because she saw it every day.

Tina also identified, written in defendant’s handwriting, Ernest’s initials and name on another HCPOA. She stated that she knew defendant’s handwriting from the letters defendant mailed to Loretta. Norman testified that he “signed” this same document without seeing Ernest or the witnesses sign, but stated that he did not “generate” this form; he also testified that he |nhad never met or seen defendant. This HCPOA document was later discovered during the search of defendant’s San Antonio home.

Tina identified defendant’s handwriting on a financial POA (“FPOA”) which is dated March 10, 2010. Norman testified that he notarized this document on March 10, 2010, in the presence of a man he was told was Ernest Luttrell, Loretta, and two witnesses, but that he only saw the man he thought was Ernest sign the document, not the witnesses (neither of which was defendant). According to Tina, defendant signed Ernest’s name to this document, as well as the names of the two witnesses, who were Tina and Tina’s daughter, Stacey Dew.

Tina identified Ernest’s name in defendant’s handwriting on two other FPOAs. Norman noted that his signature was on a second FPOA, but stated that he neither signed it nor wrote Ernest’s social security number on it. Norman testified that he only notarized one financial document for Ernest and one for Loretta, and was unable to explain the subsequent documents. Norman identified his name on another FPOA, but stated that he did not remember notarizing this document either. He was adamant that he only notarized one FPOA for Ernest Luttrell. According to Tina, defendant also forged a FPOA for Loretta, and she forged Tina’s name on that document because Tina did not sign a FPOA for Loretta. This FPOA was dated March 10, 2010, and was notarized by Ronald Norman.

Kimberly testified that defendant told her that she had power of attorney over Ernest’s financial affairs. Defendant told her she also had power of attorney over Ernest’s health care because he had been diagnosed |12with Alzheimer’s and dementia and was starting to threaten the neighbor and cause problems. Defendant also related to her that she had financial power of attorney over Loretta’s affairs. According to Kimberly, her mother’s reasoning was that both grandparents needed more assistance and care than they were getting.

Ernest’s Commitment

On April 30, 2010, David Ivey, a neighbor with whom Ernest had been arguing over property boundaries, received a call from Loretta, who told him that Ernest had taken one of his guns and gone to the back of their property after telling her that he was going to shoot David Ivey. At that time, Ivey called the sheriffs substation to report the threat as relayed by Loretta. Because Ernest had made a similar comment in the presence of one of the deputies previously, officers responded and took Ernest to LSUHSC-Shreveport and he was admitted to the psychiatric ward.

While Ernest was committed, Tina, Loretta, and defendant visited, among other facilities, Pierremont Nursing Home to check into having Ernest transferred to the facility’s secure Alzheimer’s unit. According to Tina, defendant wanted Ernest “put away” so he couldn’t give his money or property to his sister, Mildred Jackson. On May 5, 2010, a staff member from Pierremont called Ella Bradford, the case manager at LSUHSC, and informed her that Ernest’s wife and daughter wanted him transferred to their facility; Ms. Bradford refused to release any information to the caller because no such release was authorized by the patient. Defendant also Impersonally told Ms. Bradford that she wanted Ernest transferred to Pierre-mont.

On May 7, 2010, defendant called Dr. May and told him that she had HCPOA of Ernest and that she wanted Ernest to be placed in an Alzheimer’s Unit in a nursing home. The staff at LSUHSC, however, found nothing sufficiently wrong with Ernest that warranted his transfer to a nursing home. That same day, Ernest was discharged and released home, unaware of defendant’s or Loretta’s actions.

Rosie testified that during Ernest’s commitment at LSU, Loretta called her about Mildred and expressed concern that Mildred would “get everything” if something happened to Ernest. Mildred told Rosie that LSU would not let Mildred or defendant visit Ernest, and that they would not accept defendant’s HCPOA. Defendant also called her during Ernest’s time at LSU. She told Rosie that she had Ernest’s HCPOA and wanted to put “everything” in Rosie’s name. Rosie testified that she turned defendant down flat, and this subject never came up again.

Ernest’s Accounts

Betty Jones, a manager at Capitol One, testified that defendant and Loretta visited her on May 5, 2010 (which is during the time of Ernest’s commitment at LSUHSC), and that the following transactions occurred:

• defendant presented an FPOA allegedly executed by Ernest Luttrell dated March 10, 2010;
• defendant closed Ernest and Loretta’s joint accounts, withdrew money from a CD, and transferred the money into accounts listing Loretta’s name only, and made defendant’s San Antonio address as the primary address for the account;
|i4* Loretta closed an account and withdrew money from a CD;
• the $300,000 annuity was not disturbed;
• $24,535.69 was transferred from an account under Ernest’s control, which left him with a balance of $397.37.

Ms. Jones described Loretta as being very upset, a little bit weak and fragile, “not getting around as well as she always had,” and defendant as clearly being in control of the situation. Ms. Jones was given the following explanation:

That Mr. Luttrell was in the hospital, that Ms. Luttrell was not allowed to go and see her husband. Her — Mr. Lutt-rell’s sister — that they felt that the sister was trying to get to his money and that by taking his name off of anything, it would prevent the possibility of maybe the sister getting a power of attorney and having access to the funds. So if it was strictly in Loretta’s name, that would prevent that.

Tina testified that she and Loretta made ATM withdrawals of money from Ernest’s account during and after his commitment. Ernest wrote a check on May 12, 2010; the check later bounced. On May 13, 2010, Loretta called Ms. Jones and requested that the former accounts be restored so Ernest would not know what she and defendant had done while he was in the hospital.

After Ernest’s Funeral

Loretta was arrested immediately following Ernest’s funeral. Defendant stated in a television interview that Loretta could not have planned Ernest’s murder because she was in an advanced state of dementia. Rosie testified that defendant began harassing her about giving her the documents and money Loretta and Rosie took from Ernest’s safe | ^immediately after his death. She also made threatening phone calls to Rosie demanding that she sign over her “rights” and stay away from the Luttrell home. Rosie stated that she was afraid of defendant because of her erratic behavior and threats, but because defendant was back in San Antonio and she was in Arkansas, she was unable to get a restraining order against her. Money from Ernest’s account continued to be withdrawn after his death and after Loretta’s arrest and incarceration, sometimes on a daily basis and on some occasions two and three times a day.

Ernest’s 2010 Will

A will purportedly executed by Ernest on July 1, 2010, was filed by an attorney representing defendant into the civil succession proceeding involving Ernest’s estate which had been instituted shortly after Ernest’s death. This filing raised the suspicions of Investigator Don Ashley because the attorney who filed it did so with a disclaimer that he could not vouch for the truthfulness or validity of the will he filed. Inv. Ashley contacted the notary of this will, Penny Penner, who admitted that on October 2, 2010, defendant visited her to notarize three copies of a “Last Will and Testament of Ernest Luttrell” and a “Last Will and Testament of Bobbie Loretta Moore Luttrell,” both of which were dated July 1, 2010, and already signed. Penner admitted that she notarized the documents even though the dates on them were three months prior to the date that defendant brought them to her and without requiring the presence of Loretta or Ernest Luttrell. In fact, she knew that Ernest was dead and that Loretta had been arrested and charged with his murder. During her testimony at trial, Penner stated that defendant 11fitold her she was having these wills notarized “after the fact” because she did not want her mother to lose everything while she was in jail. Penner testified that she thought she was helping Mrs. Loretta. Defendant told her that Ernest and Loretta had actually signed the wills in July, but just had not completed the process before Ernest’s death. This will left everything to Loretta and if she died everything would go to defendant and defendant’s children; in the 2008 wills Ernest and Loretta executed, should they die at the same time, the property would go to Rosie Jones and the money was to go to defendant and her children.

According to Penner, she decided not to lie for defendant anymore because “this was about a murder.” Penner agreed to have her phone conversations with defendant recorded. Recordings of these phone calls were entered into evidence and played for the jury. Penner also turned over to Inv. Ashley an unopened envelope addressed to Penner from defendant, which contained a copy of a handwritten letter in which defendant laid out the scenario of what Penner was to say happened the day the wills were allegedly signed should she be questioned by authorities, as well as photographs of Ernest, Raquel Martinez (defendant’s friend and the other witness to the forged wills), and Jessica (defendant’s adopted daughter) for recognition purposes should the authorities ask her questions about the persons present for the signing of the wills.

After she was indicted by the Caddo Parish grand jury, defendant was arrested at her home in San Antonio, Texas. Defendant’s home was searched twice and the following items were recovered:

|i7* the original letter and original photographs mailed to Penny Penner;
• Ernest’s military flag, which was thrown into a corner in the defendant’s garage;
• a handwritten map of Ernest’s home with information not published to the public (according to Inv. Ashley, this was a diagram of the Luttrell home and items that were marked or identified on it were pertinent to the case or murder scene. Eric Crain during his testimony stated that he never saw a diagram or handwritten map);
• a receipt for $373 from the Caddo Clerk of Court’s Office for an August 2 order for 11 certified copies of a POA and 100 copies of another POA;
• a computer-generated receipt showing that the Passanitis had ordered a POA document from “Legacy Writer” for a POA for Loretta;
• handwritten notes made by defendant;
• a letter from defendant’s husband written to the IRS and dated May 27, 2010, stating that he and defendant were currently unemployed, that he had been looking for work, and that he was sending $100.00 to pay the interest on money they owed (this corroborated information from other sources about defendant and her husband’s unemployment, which apparently began early in 2010 and coincided with defendant’s sudden renewal of a close relationship with her mother Loretta);
• several copies of FPOAs for Ernest Luttrell with different and inconsistent signatures that were clear forgeries were found in defendant’s home;
• several copies of HCPOAs for Ernest Luttrell with different, traced over, or forged signatures were found in defendant’s home.

Tawanda Daughtry, an inmate at the Caddo Correctional Center in the same “pod” as defendant, testified that defendant told her the following information in May 2012:

• she was in jail accused of arranging her stepfather’s murder;
|,s* her stepfather had a lot of land and money from the Haynesville Shale;
• he was dead so “they” could collect the profits;
• she was going to beat the murder charge because she was nowhere near Louisiana when the murder took place and they would never be able to convict her of murder;
• she had made the documents on her computer from a website her husband showed her;
• if she was convicted of anything it probably would be the forgery charges; if so, all they would give her was probation, something that did not worry her;
• she was trying to hide from the DA’s office the fact that she had money;
• she wanted a handwriting expert so she could “switch” her handwriting that even an expert couldn’t tell;
• she initially wanted to slowly poison Ernest but changed her mind because poison could be detected in his blood;
• her mother’s half-sister Rosie came up with the idea to make it look like Ernest was killed during a home invasion;
• they offered $1,000 to have Ernest killed;
• if everybody would have just shut up and not talked then nobody would have been in jail;
• it was her plan to deny everything and put it all on her mom, who was unable to stand trial, and Rosie;
• she was “sunk” if the district attorney was listening to her phone calls;
• she told her “hired help” to shoot Ernest twice in the head to make sure that he was dead;
• she referred to the people who were hired as Tina and the “lawn guy” or Crain, a guy whom Tina was also sleeping with although she already had a boyfriend;
Im» at first they considered involving Chris, Tina’s boyfriend, but he was too scared and wanted nothing to do with “it;”
• she had money problems which was the primary reason behind Ernest’s murder;

Tawanda stated that she has been relocated to several correctional facilities because defendant threatened to kill her for cooperating with authorities and had other inmates make threats as well. She further stated that she was reluctant to testify because she feared for her family’s safety because of all that defendant told her and the threats that were made against her.

Robert Foley, an expert in handwriting analysis, testified that he analyzed FPOA and HCPOA documents and a will dated July 1, 2010, compared them with several documents known to have been signed by Ernest Luttrell, and concluded that Ernest did not sign these documents. Foley noted “voluminous” differences between the known samples and the questionable ones. Foley had an investigator obtain handwriting samples from defendant. He observed that defendant intentionally distorted her own handwriting for her requested sample, and he could not reach a definitive conclusion whether the signatures on the POAs (or will) were made by defendant. However, Foley did testify that defendant’s samples did not appear to be natural at all, but were so distorted that they could not be used for comparison. He felt that defendant’s intentional distortion was made solely to thwart his ability to compare her handwriting with the signatures on the documents at issue.

12pThe standard of appellate review for sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.05/20/03), 851 So.2d 921, cert, denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004). This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 05-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Dorsey, 10-0216 (La.09/07/11), 74 So.3d 603, cert, denied, — U.S.-, 132 S.Ct. 1859,182 L.Ed.2d 658 (2012). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. La. R.S. 14:24. An individual may only be convicted as a principal for those crimes for which he or she personally has the requisite mental state. State v. Mason, 47,642 (La.App. 12i2d Cir.01/16/13), 109 So.3d 429, writs denied, 13-0423 (La.07/31/13), 118 So.3d 1116, 13-0300 (La.09/13/13), 120 So.3d 279.

Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1A(1). Specific intent is that state of mind which exists when the circumstances indicate that the offender .actively desired the proscribed criminal consequences to follow his act or his failure to act. La. R.S. 14:10(1); State v. Scott, 42,871 (La.App.2d Cir.12/19/07), 973 So.2d 927, writ denied, 08-0350 (La.11/10/08), 996 So.2d 1060. To support a conviction as a principal to specific intent second degree murder, the state must show that the defendant had the specific intent to kill or inflict great bodily harm; the mental state of one defendant may not be imputed to another defendant. State v. Scott, supra.

Criminal conspiracy is the agreement or combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination. La. R.S. 14:26. If the intended basic crime has been consummated, the conspirators may be tried for either the conspiracy or the completed offense, and a conviction for one shall not bar prosecution for the other. Specific intent is an essential element of the crime of conspiracy. Louisiana State Bar Association v. Pitard, 462 So.2d 178 (La. p-985) -22 Proof of a conspiracy may be made with direct or circumstantial evidence. State v. Brown, 398 So.2d 1381 (La.1981).

La. R.S. 14:72 provides that:
A. It shall be unlawful to forge, with intent to defraud, any signature to, or any part of, any writing purporting to have legal efficacy.
B. Issuing, transferring, or possessing with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute a violation of the provisions of this Section.

Principal to Second Degree Murder Conviction

The first issue is whether any rational trier of fact could have found the essential elements of the crime of principal to second degree murder proven beyond a reasonable doubt. As noted above, the state presented its case for principal to second degree murder under a theory of specific intent.

Based on the testimony of Tina Vanm-oerkerque and Tawanda Daughtry and corroborating evidence, the jury reasonably found that defendant actively desired the prescribed criminal consequences to follow from her acts. La. R.S. 14:10(1); State v. Scott, supra. In addition, the jury, and not this court, is given the duty of assessing the credibility of witnesses and the weighing the evidence. State v. Dorsey, supra; State v. Gilliam, supra.

In looking at the principal component, evidence of defendant’s control and manipulation of her mother demonstrates that she was concerned in the commission of Ernest’s murder by the direct or indirect counseling or procuring of another to commit the crime. In weighing this evidence, along with evidence about the handwritten map found in | ¡^defendant’s home, the jury could reasonably have concluded based on the evidence that defendant shared with Eric Crain and Tina Vanmoerkerque the specific intent to murder Ernest Luttrell.

In viewing the evidence in the light most favorable to the prosecution, we conclude that any rational trier of fact could have found that the essential elements of the crime of principal to second degree murder were proven beyond a reasonable doubt.

Criminal Conspiracy to Second Degree Murder

Criminal conspiracy requires an agreement or combination of two or more persons for the specific purpose of committing any crime, an act in furtherance of the object of the agreement or combination, and specific intent. La. R.S. 14:26; Louisiana State Bar Ass’n, supra. The jury heard evidence that defendant instructed Loretta to ask Tina to find a hit man to kill Ernest. They also heard evidence of Loretta’s agreement to the plan; Tina’s recruitment of Eric Crain; and, Eric’s fulfillment of the murder pursuant to a detailed set of instructions provided to him by Tina (who herself was given details by Loretta). Defendant and Loretta entered into an agreement together for the specific purpose of killing Ernest, and Loretta’s act of directing Tina to find a hit man serves as an act in furtherance of their agreement. In viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of criminal conspiracy to second degree murder.

^Principal to Forgery of HCPOA and FPOA for Ernest Luttrell

The state presented three HCPOAs designating defendant as having power of attorney for Ernest Luttrell. Tina identified Ernest’s name and initials as being written in defendant’s handwriting on two of the HCPOAs, and testified that she, defendant, and Loretta participated in the forgery of one HCPOA. Rosie testified that defendant told her that she had POA over Ernest, but did not specify the type of POA to which she was referring. Kimberly testified that defendant stated that she had Ernest’s HCPOA. Ella Bradford, the social worker at LSUHSC, testified that defendant told her she had been given HCPOA over Ernest, and that a copy was left at the nurse’s station on the psychiatric unit. Dr. May also testified that defendant stated that she had HCPOA over Ernest.

The state presented three versions of FPOA designating defendant as Ernest’s representative. Tina identified Ernest’s signature written in defendant’s handwriting on all three documents. Kimberly testified that her mother had FPOA over Ernest. Betty Jones at the bank testified that defendant presented her with an FPOA for Ernest; this was one of the-documents that Tina testified was forged by defendant.

Robert Foley, the handwriting expert, testified that he analyzed the HCPOA and FPOA documents; Ernest clearly had not signed these documents, and defendant intentionally distorted her own handwriting to prevent a valid comparison.

In viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the state proved beyond a ^reasonable doubt that defendant forged Ernest Luttrell’s signature on both POA documents with the specific intent to defraud others. State v. Satchfield, 35,631 (La.App.2d Cir.08/14/02), 824 So.2d 537. Although Foley could not definitively state that defendant forged Ernest’s signatures, this conclusion goes to the weight of the evidence. State v. Dorsey, supra. Furthermore, the jury found Tina’s testimony to be credible. State v. Gilliam, supra.

Accordingly, this assignment of error is without merit.

Excessive Sentence

Defendant argues that her sentences should have been ordered to run concurrently because the state presented her actions as being one scheme or transaction. No motion to reconsider sentence was made or filed in the instant case. When a defendant fails to timely file a motion to reconsider sentence under La. C. Cr. P. art. 881.1, the appellate court’s review is limited to the bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Smith, 46,348 (La.App.2d Cir.06/22/11), 71 So.3d 485, unit denied, 11-1646 (La.01/13/12), 77 So.3d 950. Under constitutional review, a sentence can be excessive, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering. State v. Fatheree, 46,686 (La.App.2d Cir.11/02/11), 77 So.3d 1047.

This court reviews “consecutive versus concurrent sentencing” arguments as part of constitutional excessiveness review. State v. Barnett,U 46,303 (La. App.2d Cir.05/18/11), 70 So.3d 1, writ denied, 11-1612 (La.04/13/12), 85 So.3d 1239.

Since defendant only contests the consecutive nature of her sentences and it is within the trial court’s discretion to order sentences to run consecutively rather than concurrently, the focus of the analysis is whether the trial court stated the factors considered and its reasons for the consecutive terms. La. C. Cr. P. art. 883; State v. Smith, supra.

Prior to issuing sentence, the trial court announced several reasons why consecutive sentences were being imposed, including defendant’s desire for Ernest to be killed and her manipulation of her mother, the notaries, and Tina. Jurisprudence does not demand that the trial court consider a certain set of factors, but only suggests some factors to assist in the court’s analysis. In this case, the court’s reasons demonstrate that it considered the gravity or dangerous of the offenses, the viciousness of the crimes, the harm done to the victims, and whether defendant constitutes an unusual risk of danger to the public. State v. Smith, supra.

Based on the circumstances of this case, defendant’s consecutively imposed sentences are not grossly disproportionate to the severity of the crimes she committed such that they shock the sense of justice or serve no purpose other than to inflict pain and suffering. State v. Fatheree, supra.

In conclusion, defendant’s sentence is not unconstitutionally harsh and therefore is not excessive.

\mError Patent Review

The trial court ordered that all of defendant’s sentences were to be served without the benefit of parole.

The “no parole” limitation does not apply to counts two, three, four, and five because La. R.S. 14:26(C) and 14:72(D) do not include any restriction against parole. We therefore delete the “no parole” language from these sentences.

Conclusion

For the foregoing reasons, defendant’s convictions are affirmed, the parole restrictions for counts two, three, four, and five are deleted, and defendant’s sentence is affirmed.

      . Jeff Thomas, a crime scene investigator with the Caddo Parish Sheriff’s Office, testified that an empty Smith & Wesson .44 caliber revolver was later recovered and an Alcohol, Tobacco, and Firearm trace revealed that Ernest Luttrell was the registered owner of this gun.

      . Kimberly has a bachelor's degree in chemistry, a master’s degree in chemical engineering, and was a second year law student at the University of Washington at the time of the trial.

      . Tina stated that Loretta would use the speaker phone during most of her phone conversations. Specifically, she stated, "She (Loretta) did when I was there a lot. In the bedroom, she would move around a lot and, you know, balance checks and stuff. She sat at a desk and she would hit speaker phone.”


source: Caselaw Access Project

author: SAUNDERS, Judge. PETERS, J.

license: Public Domain

text:
    Sandra Jackson DAVIS v. LEMCI, LLC, et al.
    No. 13-1276.
    Court of Appeal of Louisiana, Third Circuit.
    July 9, 2014.

      Steven J. Diebold, Champagne & Brum-baugh, Lafayette, LA, for Plaintiff/Appel-lee, Sandra Jackson Davis.
    Spencer R. Schoonenberg, Mayhall & Blaize, LLC, Baton Rouge, LA, for Defendant/Appellant, LEMCI, LLC, Stefan Koch, Kathryn Koch.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

| ,This appeal arises from the trial court’s finding that the initial owners of a rent house in Breaux Bridge, subsequently sold at a June 12, 2002 tax sale, were never properly served with notice of that tax sale. This finding nullified a line of conveyances stemming from that tax sale that ended with a sale to the current possessors of the rent house. Also at issue in this appeal is the trial court’s finding that the initial owners of the rent house had to reimburse the possessors of the rent house for expenses the possessors incurred to restore the rent house back into a condition fit for commerce.

FACTS

This dispute over a rental property in Breaux Bridge involves the initial owners, Sandra Jackson Davis and her former husband, Melvin Davis; the tax sale purchaser, LEMCI, Inc. (LEMCI); and the possessors, Stefan and Kathryn Koch (the Kochs). Melvin purchased the home in his name only on July 12, 2001. Melvin and Sandra never paid taxes on the property. During the short period they owned the property before divorcing, Melvin was in charge of the property. Sandra visited the property no more than a handful of occasions, most recently seven years before trial. She never lived, worked on, or maintained it. She initialized these proceedings soon after the property’s restoration by the current occupants was completed. Melvin was served with notice of the current proceedings by order of the trial court, but never appeared and was never subpoenaed.

The tax sale purchaser, LEMCI, acquired its claim toward the property via tax sale recorded on June 13, 2002. That entity’s principal owner, Gary Massicot, testified that this property was one of about one thousand properties LEMCI acquired by tax sale over a ten-year period. On February 4, 2010, eight years later, |2for the purpose of quieting title and reducing LEMCI’s liability exposure, Massi-cot conveyed the property to a single asset entity, Zimmerman Street, LLC, for $1,500.00 before selling it to the Kochs for $26,000.00.

The Kochs were shown the property by Mr. Massicot in April 2010. The Kochs thought they and their children could renovate the house on weekends and eventually rent it out to supplement their earnings. They apparently settled on a $66,000.00 price for the property the very first time it was shown. Notwithstanding its long-abandoned condition, the Kochs took on the family project and resurrected the home.

For reasons left unanswered by the record, the Kochs did not actually purchase the property until August 2, 2010, by which time their restoration of the home was virtually complete. Three days later, on August 5, 2010, Sandra filed a petition for declaratory judgment seeking to be proclaimed owner of the property for lack of notice of the 2002 Tax Sale.

Action of the Trial Court

After a brief hearing, the trial court determined that Sandra and Melvin Davis had never been properly served with the 2002 Tax Notice. Therefore, it ruled in Sandra’s favor with respect to ownership. However, the trial court also determined that the Kochs were due the $23,000.00 they put forth in performing the restoration, and until reimbursed that amount, the Kochs could continue to possess the property. The trial court also found that LEMCI and/or the Kochs were owed almost $3,500.00 for property taxes and interest they and their predecessors had paid for property taxes since Sandra and Melvin Davis abandoned it. The trial court’s judgment was silent as to whether the Kochs were entitled to a return of the $26,000.00 purchase price they paid to LEMCI for the property, and as to who was |sentitled to any rent collected from the property should the Kochs continue to possess the property while awaiting reimbursement from Sandra.

Issues Presented on Appeal

This appeal was perfected by LEMCI and the Kochs, represented by same counsel. Both maintain the following issues presented on appeal:

1. Whether Sandra carried her burden of proving that neither she nor Melvin received constitutional notice of the pending June 12, 2002 Tax Sale.
2. Whether ownership acquired by the Kochs through an instrument valid on its face is protected by the “Innocent Third Party Purchaser Doctrine,” notwithstanding any alleged defects in a previous instrument from which their title emanates.
3. Whether granting a motion for involuntary dismissal is appropriate when a plaintiff who has been made a party to a lawsuit fails to answer the suit or appear at trial.
4. Whether necessary and useful expenses include the value of the sweat equity, representing the time and labor a good faith possessor has expended improving the subject immovable property.
5. Whether the Kochs are entitled to the enhanced value of the subject property as a result of renovations performed by them under the equitable principles of enrichment without cause.

Sandra answered the appeal. She suggests that the trial court erred in finding the Kochs had established that they had spent $23,000.00 out of pocket and in awarding LEMCI and/or the Kochs reimbursement for 2003-2012 property taxes, interest, and penalties. Finally, Sandra argues that the trial court erred by failing to award her the rental proceeds that the Kochs received since restoring the property-

ISSUE PRESENTED ON APPEAL NUMBER ONE:

| ¿Both LEMCI and the Kochs contend that the trial court erred in finding that Sandra carried her burden of proving that neither she nor Melvin received constitutional notice of the pending June 12, 2002 Tax Sale. We find no merit to this contention.

A factual finding by a court regarding whether a party received sufficient notice of an impending tax sale of their property that met the due process requirements established by Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), is subject to the manifest error clearly wrong standard of review. Cititax Group, L.L.C. v. Gibert, 12-633, 12-634 (La.App. 4 Cir. 12/19/12), 108 So.3d 229. As such, we will review the trial court’s finding that Sandra and Melvin carried their burden of proof on this matter under this standard.

Sandra testified that she never received notice of the tax sale. Further, it is clear from the record that the April 2002 Notice was sent to United Companies Lending Corporation after the property had already been conveyed to EMC Mortgage Corporation and then conveyed once again to Melvin while he was married to Sandra in July 2001. Finally, when attempting to quiet title after having purchased the property at the tax sale, LEMCI served United Companies Lending Corporation with its petition for judgment declaring it to be the owner of the property.

This evidence renders the finding by the trial court that Sandra and Melvin did not receive notice of the tax sale reasonable. Therefore, we find no manifest error by the trial court in making its finding that Sandra carried her burden to prove that she never received notice of the June 12, 2002 tax sale.

However, the nullity of the June 12, 2002 tax sale does not necessitate that Sandra is entitled to a judgment declaring her owner of the property. Our review of the record clearly indicates that Sandra has brought a petitory action under |sLa.Code Civ.P. art. 3651. It states, “[t]he petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiffs ownership.”

To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:
(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.
When the titles of the parties are traced to a common author, he is presumed to be the previous owner.

La.Code Civ.P. art. 3653.

[T]he first issue that must be determined in a petitory action is the question of current possession. Mt. Everett African Methodist Episcopal Church v. Carter, 96-2591 (La.App. 1st Cir.12/29/97), 705 So.2d 1179, 1181. The defendant’s possession, or lack of it, determines the burden of proof imposed on the plaintiff. Joffrion v. Scioneaux, 506 So.2d 512, 513-14 (La.App. 1st Cir.1986), unit denied, 505 So.2d 1132 (La.1987). The possession required to put the more onerous burden on the plaintiff is the same possession required to initiate the pos-sessory action or to establish acquisitive prescription. Griffin v. Daigle, 99-1942 (La.App. 1st Cir.9/22/00), 769 So.2d 720, 725, unit denied, 00-3406 (La.2/2/01), 784 So.2d 648; see LSA-C.C.P. art. 3660. The defendant is in possession when he and his ancestors in title have had corporeal possession for at least one year or civil possession for the same period of time preceded by corporeal possession. See LSA-C.C.P. arts. 3658 and 3660; LSA-C.C. art. 3476; Id.

George M. Murrell Planting & Mfg. Co. v. Dennis, 06-1341, pp. 3^ (La.App. 1 Cir. 9/21/07), 970 So.2d 1075,1079.

Thus, in order to properly adjudicate Sandra’s petitory action, we must determine her burden of proof. Sandra’s burden is dependent upon whether the Kochs were in possession of the property. Here, it is clear from the record that |fiLEMCI and then the Kochs were in uninterrupted corporeal possession of the property for greater than one year prior to the trial. Thus, the burden that Sandra had to prove was the more onerous of the two under La.Code. Civ.P. art. 3653.

In Pure Oil Co. v. Skinner, 294 So.2d 797 (La.1974), our supreme court held that a plaintiff not in possession versus a defendant who is in possession is required “to show good title against the world without regard to the title of the party in possession.” 294 So.2d at 799. Title is made out when an unbroken chain of valid titles from the sovereign is shown. Whitley v. Texaco, Inc., 434 So.2d 96, 103 (La.App. 5 Cir.1982), unit denied, 435 So.2d 445 (La.1983).
“The case law is clear that ‘title good against the world’ means one must produce an unbroken chain of record title back or show ownership through acquisitive prescription.” Cuny v. Quinn, 03-649, p. 5 (La.App. 5 Cir. 10/28/03), 860 So.2d 232, 237.

Langley v. Billiot, 09^433, p. 6 (La.App. 5 Cir. 11/24/09), 28 So.3d 1154,1157.

Our review of the record is that Sandra • failed to carry her burden of proof. Sandra’s goal when she put forth the evidence in the record was to invalidate the June 12, 2002 tax sale. While that was successful, the invalidation of the tax sale served to only to establish that Sandra did not lose title. Thereafter, Sandra had the burden to produce evidence “to show good title against the world without regard to the title of the party in possession.” Id. The record is devoid of any evidence that Sandra has shown good title against the world. Accordingly, we find that the trial court erred in rendering that Sandra was entitled to a judgment declaring her owner of the property.

ISSUES PRESENTED ON APPEAL NUMBERS TWO THROUGH FIVE AND SANDRA’S ANSWER TO APPEAL:

Our finding that Sandra failed to carry her burden to prove title against the world pretermits the remaining issues in this case.

CONCLUSION:

17LEMCI and Stefan and Kathryn Koch present five issues for review. Sandra Davis answers their appeal and requests that this court reduce the award granted to them by the trial court.

We find no merit in LEMCI and the Kochs’ assertion that the trial court erred in finding that Sandra and Melvin Davis did not receive constitutionally required notice of the impending tax sale of their property, a violation of their due process rights. However, we find that the trial court erred in granting Sandra Davis a judgment declaring her the owner of the property. The record has no evidence that Sandra carried her burden necessary to warrant such a judgment. Accordingly, we reverse the judgment of the trial court that Sandra is the owner of the property. This reversal pretermits the remaining issues presented for review. All costs of these proceedings are assessed to Sandra Davis.

REVERSED.

PETERS, J., concurs in the result and assigns written reasons.

PETERS, J.

concurring.

|,I agree with the majority’s reversal of the trial court’s judgment in favor of Sandra Davis Jackson, but for different reasons than those stated by the majority. I would reverse the judgment on the basis that the trial court erred in determining that Mrs. Davis and her husband were never placed on notice of unpaid taxes. That being the case, Mrs. Davis failed in the burden of proof required to nullify the tax sale.

The exhibits of record are all joint exhibits and include the cash deed from Melvin Davis from EMC; the tax sale deed to LEMCI; the quitclaim deed from LEMCI to Zimmerman; the quitclaim deed from Zimmerman to Mr. and Mrs. Koch; the tax certificates from 2003 to 2012; the judgment of default entered by LEMCI against Melvin Davis; the 2011 and 2013 appraisals of the property; and a copy of a lease by Mr. and Mrs. Koch to a third party.

The majority appears to agree with the trial court’s factual finding that neither Mr. Davis nor Mrs. Davis received the required legal tax notice, but classifies her petition for declaratory relief as a petitory action filed pursuant to La.Code Civ.P. art. 3651. That being the case, the majority concludes that because 12she failed to prove title against the world, she cannot prevail in her claim of ownership of the property. While the claim for relief bears some similarity to a petitory action, I do not classify it as such. It is an action to set aside a tax deed, which I find to be an entirely different cause of action governed by other specific provisions of the law. In fact, neither litigant has couched the issues before us as a petitory action.

Mrs. Davis testified specifically on direct that she never received any notice of the taxes due and she was very careful not to mention her former husband in doing so. Equally important, she was not questioned concerning whether she received any type of correspondence from United Companies or EMC. On cross-examination, she testified that she had absolutely nothing to do with the house, that her former husband purchased the place without her knowledge, and that he handled everything relative to the house without her input. When specifically asked about the taxes on cross-examination, she responded, “[She] was assuming [Mr. Davis] was taking care of all of that.” She further acknowledged on cross-examination that even after the divorce, she did not open mail addressed to Mr. Davis, and she instructed the children to give him the mail that was sent to her address. She specifically stated that had Mr. Davis received a tax notice at their former matrimonial address, she would not have known about it.

The only other evidence provided by Mrs. Davis was that of an appraiser, and this testimony had no bearing on the issue of notice. After she rested, the defendants asked for an involuntary dismissal, which the trial court denied. Thereafter, the first witness for the defendants was' Gary Massicot, the owner of LEMCI. He testified concerning his company’s business of purchasing tax-sale properties, but more importantly, he called the court’s attention to the redemption | ¡¡requirements of a former owner as well as the fact that the 2003 tax notice was also sent to Mr. Davis at his community address. He explained that this notice to the former owner was placed on the annual tax notice for three years after LEMCI purchased the property at the tax sale.

The assessment/collection process for property taxes is found in Chapter 5, of Title 47 of the Louisiana Revised Statutes and that process provides for a situation where title to immovable property changes hands in a particular year. While La.R.S. 47:2126 provides that while the tax roll is to be delivered to the parish tax collector on or before November 15 of the year the taxes are due, it also provides that “[t]he tax roll shall be updated as of January first or later of the year in which the taxes are collectable.” Thus, a transaction involving the transfer of immovable property may not appear on the tax rolls in the name of the vendee until the next year, depending on the cutoff date an individual assessor’s office applies for updating its rolls. In fact, La.R.S. 47:2153(B)(2) provides that “[f]or the purpose of tax sales, it shall be sufficient to advertise all property in the name of the tax debtor at- the time the assessment was made.”

In this case, Mrs. Davis did not establish that the July 16, 2001 transaction was recorded before the St. Martin Parish Assessor’s Office ceased updating its rolls in 2001. This becomes important because had the assessor’s office closed its updating activities for the year, notice would have been proper to the record owner, United Companies. In fact, the transfer deed to Mr. Davis provides for this possibility as it provided that the vendee waived the production of tax research certification. Mrs. Davis did not establish that she and/or her former husband, |4rather than United Companies, were entitled to notice for 2001.

Additionally, La.R.S. 47:2153(C), as it read in 2001, addressed the situation where a sale occurred after the assessor stopped updating the parish tax rolls and provided that within a reasonable time after the tax sale, “the tax collector shall research the records of the recorder of conveyances on all property to which tax sale title was sold to tax sale purchasers for any transfers of the property that occurred after the preparation of the tax roll for the year that the property was sold for taxes.” If the tax collector’s office found such a transaction, it was required to give the new owner notice of the tax sale and of his or her right of redemption. La.R.S. 47:2153(0 (2001) (amended 2012). Thus, while Mrs. Davis argues that she did not receive the original notice, she is silent on this issue. The subsequent notices filed in evidence support the proposition that the tax collector’s office performed its statutory duty because these notices contain a reference to the address of Mr. and Mrs. Davis. Thus, Mrs. Davis failed to prove lack of notice in this respect as well.

I would reverse on Mrs. Davis’ failure to prove lack of notice, but not on the application of La.Code Civ.P. art. 3651.

      . Louisiana Revised Statutes 47:2153 has been significantly amended since 2001, but this portion of the statute remains the same.


author: LAMAR, Justice, for the Court:

text:
    J. Allen DERIVAUX, Jr. v. THE MISSISSIPPI BAR.
    No. 2014-BR-00247-SCT.
    Supreme Court of Mississippi.
    July 17, 2014.

      J. Allen Derívame, Jr., Vicksburg, appellant, pro se.
    Adam B. Kilgore, Jackson, attorney for appellee.
   LAMAR, Justice, for the Court:

¶ 1. John Allen Derívame Jr. brings his Petition for Reinstatement before this Court, but the Mississippi Bar argues that Derivaux’s Petition fails to comply with the requirements of Mississippi Rule of Discipline 12(7), as well as Mississippi- caselaw. We agree with the Bar and dismiss Deri-vamos Petition for Reinstatement.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 18, 2011, a Mississippi Bar Complaint Tribunal disbarred Derí-vame. Miss. Supreme Ct. Cause No. 2010-B-928. After a hearing on Derivaux’s Motion to Reconsider, the Tribunal modified its previous order and suspended Derívame for a period of two years, beginning on November 18, 2011. This Court affirmed Derivaux’s suspension. Miss. Bar v. Deri-vaux, — So.3d-(Miss.2014), 2014 WL 657389 (Feb. 20, 2014). After his two-year suspension, Derívame filed his Petition for Reinstatement. The Bar filed a Motion to Dismiss the Petition, arguing that the Petition was deficient under Mississippi Rule of Discipline 12(7) and Mississippi caselaw.

STANDARD OF REVIEW

¶ 3. This Court “has exclusive and inherent jurisdiction of matters pertaining to attorney discipline, reinstatement, and appointment of receivers for suspended and disbarred attorneys.” In re Morrison, 819 So.2d 1181, 1183 (Miss. 2001). This Court reviews the evidence in disciplinary matters de novo, on a case-by-case basis as triers of fact. Id.

DISCUSSION

Derivaux’s Petition for Reinstatement does not satisfy Rule 12’s requirements.

¶ 4. The reinstatement of suspended attorneys is governed by Mississippi Rule of Discipline 12. Burgin v. Miss. State Bar, 453 So.2d 689, 690 (Miss.1984). Rule 12 provides:

(a) No person disbarred or suspended for a period of six months or longer shall be reinstated to the privilege of practicing law except upon petition to the Court.
(b) Reinstatement to the practice of law following any discipline shall be only upon proof of compliance with any such sanctions.

Miss. R. Disc. 12(a)-(b) (Rev. 2002). In determining whether to grant reinstatement, “[t]he Court’s fundamental inquiry is whether [the attorney] has rehabilitated himself in conduct and character since the suspension was imposed.” In re Steele, 722 So.2d 662, 664 (Miss.1998) (citation omitted). “The burden of proving that he has rehabilitated himself and re-established the requisite moral character sufficient to entitle him to reinstatement is upon the Petitioner.” Burgin, 453 So.2d at 691, (citation omitted). A suspended attorney must demonstrate this by complying with the requirements of Rule 12. In re Benson, 890 So.2d 888, 890 (Miss.2004).

¶ 5. Five requirements apply to Rule 12 reinstatement petitions. Id. The petitioner must: (1) state the cause or causes for suspension or disbarment; (2) give the name and current address of all persons, parties, firms, or legal entities who suffered pecuniary loss due to the improper conduct; (3) make full amends and restitution; (4) show that he has the necessary moral character for the practice of law; and (5) demonstrate the requisite legal education to be reinstated to the privilege of practicing law. Miss. R. Disc. 12(7); In re Benson, 890 So.2d at 890. This Court considers the Bar’s position when determining whether to reinstate a suspended attorney. In re Holleman, 826 So.2d 1243, 1248 (Miss.2002) (citation omitted).

¶ 6. Here, the Bar filed a Motion to Dismiss Derivaux’s Petition, asserting that it failed to address adequately the requirements for reinstatement, as set forth in Benson. Specifically, the Bar argues that Derivaux failed to mention the cause for his suspension and that he failed to give the name or address of any person who had suffered pecuniary loss due to his misconduct. We agree with the Bar’s position and find that Derivaux’s one-and-a-half page Petition is insufficient under Rule 12(7) and Mississippi caselaw.

A. Cause for Suspension

¶ 7. In his Petition, Derivaux listed the Mississippi Rules of Professional Conduct which he violated, but he failed to state in sufficient detail the cause for his suspension. Beyond stating the cause numbers and the rules of professional conduct that he violated, Derivaux did not provide any meaningful information about why he was suspended from the practice of law. As Derivaux merely listed the Mississippi Rules of Professional Conduct which he violated and plainly failed to state the cause or causes for suspension, this Court finds that Derivaux has not satisfied this requirement.

B. Pecuniary Loss

¶ 8. As the Bar argued, Derivaux’s Petition failed to give the name or address of any person “who suffered pecuniary loss due to [his] improper conduct.” Id. Deri-vaux’s Petition was completely silent as to this information and, as such, Derivaux has not satisfied this requirement.

C.Full Amends and Restitution

¶ 9. Derivaux’s Petition simply stated that he made restitution by depositing funds with the Bar. But Derivaux offered no documentation to prove this alleged compliance. The Bar asserts that when Derivaux deposited the funds, it was forced to interplead the funds in a separate action in the Chancery Court of Warren County in order to determine the amounts owed to twenty-nine people, because Derivaux failed to give the name and addresses of those who had suffered pecuniary loss due to his misconduct. It is unclear from the record whether Derivaux has made full restitution.

D. Moral Character

¶ 10. Derivaux points out that he never denied the allegations of misconduct, but that there were factors that led to the misconduct. Derivaux asserts that those factors are no longer present and that, through the Lawyers’ and Judges’ Assistance Program (LJAP), those issues have been resolved. In support of this assertion, Derivaux attaches to his Petition the Disciplinary Referral Contract he entered into with LJAP.

¶ 11. But the Bar points out that Deri-vaux wholly failed to address whether he has the necessary moral character to practice law, and we agree. The scant evidence of a single contract with LJAP is wholly inadequate to satisfy this requirement. Derivaux has failed to offer clear and convincing evidence to satisfy “[t]he burden of proving that he has rehabilitated himself and re-established the requisite moral character sufficient to entitle him to reinstatement.... ” In re Kelly, 987 So.2d 925, 929 (Miss.2008) (quoting Burgin, 453 So.2d at 691).

E. Legal Learning

. [10] ¶ 12. Derivaux’s Petition also fails to demonstrate that he possesses the requisite legal education to be reinstated. There is no indication that Derivaux engaged in any legal education programs or attempted to keep himself apprised of Mississippi law during the two years he was suspended.

CONCLUSION

¶ 13. Derivaux’s Petition does not satisfy the requirements set forth in Rule 12(7) of the Mississippi Rules of Discipline. Derivaux failed to state the cause of his suspension, give the names and current address of all persons who suffered pecuniary loss due to his improper conduct, demonstrate that he has made full restitution, demonstrate that he possesses the sufficient moral character to be reinstated to the practice of law, or state whether or not he has engaged in any type of legal learning during his suspension. For these reasons, we grant the Bar’s Motion to Dismiss and dismiss Derivaux’s petition.

¶ 14. PETITION FOR REINSTATEMENT DISMISSED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.


author: ROBERTS, J., for the Court:

text:
    Ira M. PRUITT, Appellant v. Lena M. Walker PRUITT, Appellee.
    No. 2013-CA-00418-COA.
    Court of Appeals of Mississippi.
    July 29, 2014.

      A.E. (Rusty) Harlow Jr., Sabrina D. Howell, Kathi Crestman Wilson, Grenada, attorneys for appellant.
    Kirkland Caldwell Willingham, Bates-ville, attorney for appellee.
    Before IRVING, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J., for the Court:

¶ 1. This appeal centers on a chancery court’s equitable division of marital property. Ira M. Pruitt claims that the Carroll County Chancery Court erred when it awarded his ex-wife, Lena M. Walker Pruitt, approximately $92,000 as her portion of his accrued retirement benefits through the Mississippi Public Employees’ Retirement System (PERS). According to Ira, the chancellor erred by going beyond the record to calculate the present market value of his PERS retirement account. We agree. Therefore, we reverse the chancellor’s judgment and remand this matter for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Ira and Lena were married during February 1970. In late 2000 or early 2001, they separated after more than thirty years of marriage. Approximately ten years after they separated, Ira filed a complaint for divorce based on irreconcilable differences. Alternatively, Ira claimed that he was entitled to a divorce based on Lena’s adultery or her habitual cruel and inhuman treatment. Lena responded and filed a counterclaim for a divorce based on habitual cruel and inhuman treatment, desertion, adultery, or irreconcilable differences. Ultimately, they consented to a divorce based on irreconcilable differences. They asked the chancellor to divide their marital property and debt.

¶ 3. The parties went to trial on May 14, 2012. Lena testified first. For brevity’s sake, it should suffice to say that the majority of her testimony focused on financial matters. Ira testified after Lena. Like Lena, much of Ira’s testimony centered on his financial status. For purposes of this appeal, his most pertinent testimony involved his retirement. Ira testified that he retired from the Greenwood Public School System in 1996. Ira also retired from the Delta Correctional Facility during 2010. He had two separate retirement accounts. On cross-examination, Lena’s attorney asked Ira whether he knew the balance of his PERS account. Ira did not know his balance, but his attorney stated that Ira would execute a release, so Lena could attempt to obtain the balance of Ira’s PERS account. Ira’s statement under Rule 8.05 of the Uniform Chancery Court Rules indicated that he received approximately $2,300 in retirement benefits each month. When Ira retired from the Delta Correctional Facility during January 2011, he received a lump-sum payment of approximately $17,000 from his 401 (k) retirement account.

¶ 4. After Lena and Ira testified, they stipulated that Lena should receive a divorce based on their irreconcilable differences. The chancellor announced that he would take the remaining issues under advisement and issue a bench opinion at a later date. Approximately one week later, the chancellor wrote a letter to the parties and announced that he needed “more detailed information regarding the parties’ retirement.” Accordingly, the chancellor asked for “the values of both parties’ retirement accounts as of [the date Ira and Lena separated] and as of the date of [the] trial.” Lena’s attorney forwarded a letter to the chancellor from PERS. That letter said that Lena had no retirement benefits. Ira’s attorney attempted to comply with the chancellor’s instructions. In a letter to the chancellor, Ira’s attorney said that he and Ira had “been unable to recover that information.” Ira’s attorney explained that “[i]t appears that once the parties begin to draw funds[,] prior statements are deleted.”

¶ 5. On August 27, 2012, the chancellor entered his opinion. The chancellor’s opinion is appropriately thorough and detailed. We focus on those aspects of the chancellor’s opinion that relate to his division of Ira’s PERS retirement account. The chancellor found that the parties separated on August 5, 2000. The chancellor noted that Ira retired as a public-school teacher during 1996. The chancellor then calculated the present value of Ira’s retirement account based on information that the chancellor obtained from the PERS retiree handbook. The chancellor found the ' PERS retiree handbook from the PERS website. Using the information the chancellor obtained from the PERS handbook, the value of Ira’s monthly retirement checks, and the “thirteenth check” that Ira received from PERS each year, the chancellor attempted to extrapolate the present value of Ira’s PERS account. According to the chancellor, the present market value of Ira’s PERS account was approximately $275,000.

¶ 6. After discussing the factors set forth in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994), the chancellor held that Lena was “entitled to one-third of Ira’s retirement benefits, beginning September ] 2012[,] and continuing as long as Ira receives [such] benefits.” The chancellor noted that he was prohibited from directing the State to pay PERS benefits to a spouse or placing a lien on a spouse’s PERS retirement benefits. Consequently, the chancellor ordered Ira to pay Lena “a monthly payment of $500.00, or one-third (1/3) of his retirement benefit[,] and one-third (1/3) of his [“thirteenth”] check, or cost of living adjustment, each year.” Additionally, the chancellor held that Lena was entitled to approximately $92,500 from Ira’s PERS retirement account. The chancellor awarded Lena a judgment for that figure.

¶ 7. Next, the chancellor awarded Lena a judgment of approximately $2,500-which represented Lena’s portion of Ira’s 401(k) account. The chancellor then held that Ira could satisfy the two judgments against him “either in lump sum or with an additional monthly payment of $500 per month until the whole [judgment of approximately $95,000] is satisfied.” Ira appeals.

STANDARD OF REVIEW

¶ 8. “When this Court reviews domestic relations matters, our scope of review is limited by the substantial evidence/manifest error rule.” Giannaris v. Giannaris, 960 So.2d 462, 467 (¶8) (Miss.2007) (citations omitted). “Therefore, we will ‘not disturb the findings of a chancellor unless the chancellor was manifestly wrong [or] clearly erroneous[,] or [applied] an erroneous legal standard[.]’ ” Id. (quoting R.K. v. J.K., 946 So.2d 764, 772 (IF 17) (Miss. 2007)).

ANALYSIS

¶ 9. Ira’s issue on appeal stems from the fact that after the parties went to trial, the chancellor found information from a PERS handbook and the PERS website and determined a value for Ira’s PERS retirement account. Ira argues that the chancellor erred by considering evidence outside the record. We agree.

¶ 10. In Dunaway v. Dunaway, 749 So.2d 1112, 1121 (¶ 28) (Miss.Ct.App.1999), a chancellor was faced with proof of valuation that was “something less than ideal.” Consequently, the chancellor “made valuation judgments” that had at least some evidentiary support in the record. Id. This Court stated that “[t]o the extent that the evidence on which the chancellor based his opinion was less informative than it could have been, we lay that at the feet of the litigants and not the chancellor.” Id. Accordingly, this Court found that the chancellor had not abused his discretion. Id.

¶ 11. Although a chancellor may value assets based on evidence that is based on something less than ideal, the chancellor’s valuation must be based on at least some evidentiary support in the record. In other words, we must draw a distinction between less-than-ideal evidence presented by parties to the litigation, and information outside of the record that neither party presented. Despite the chancellor’s clear and thorough attempt to resolve the issue in an equitable manner, under the precise circumstances of this case, we must find that it was an abuse of discretion to consider evidence that was outside the record. It follows that we remand this case for further proceedings.

¶ 12. On remand, the chancellor may exercise his considerable discretion when calculating the manner in which Ira’s PERS retirement benefits should impact the equitable distribution of Ira’s and Lena’s marital assets and liabilities. We are aware of no restriction on the chancellor’s right to calculate Ira’s income based on the monthly payments he receives from his PERS annuity — at least to the extent that such income impacts Ira’s ability to pay Lena alimony. But we caution the chancellor to remain mindful that Ira cannot exercise any option to pay Lena a lump-sum figure from his PERS retirement account. Essentially, a lump-sum payment from Ira’s PERS account would operate as a qualified domestic relations order (QDRO). A QDRO is permissible in the context of a retirement account governed by the Employment Retirement Income Security Act (ERISA). See Parker v. Parker, 641 So.2d 1133, 1137 (Miss. 1994). But ERISA does not apply to retirement plans that are “established and maintained for its employees by ... the government of any State....” 29 U.S.C. § 1321(b)(2) (2012). PERS was established “for the purpose of providing retirement allowances and other benefits ... for officers and employees in the state service and their beneficiaries.” Miss.Code Ann. § 25-11-101 (Rev. 2010). Furthermore, accrued PERS benefits are “exempt from levy and sale, garnishment, attachment or any other process whatsoever, and shall be unassignable except as specifically otherwise provided in this article.... ” Miss. Code Ann. § 25-11-129(1) (Rev. 2010). Therefore, a lump-sum payment from an accrued PERS retirement account is not permissible by way of a QDRO. We recognize that the chancellor’s order did not specifically attempt to award Lena any figure by way of a QDRO — at least not in name. When the chancellor denied Ira’s motion for reconsideration, he noted Ira’s claim that the lump-sum judgment was a “masked” QDRO “under another name.” The chancellor found no merit to Ira’s claim, but he did not discuss his reasoning. Notwithstanding the name used to describe the lump-sum judgment, the mechanics involved operate no differently than a QDRO. Most importantly, it is legally impossible for Ira to transfer a lump-sum figure from his PERS account. A legally impossible option is not an option at all.

¶ 13. THE JUDGMENT OF THE CARROLL COUNTY CHANCERY COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Ira and Lena had two children during their marriage. Both of their children were adults at the time that Ira and Lena divorced.


author: BOLIN, Justice.

text:
    Ex parte Joseph Lester Pate. (In re Joseph Lester PATE v. STATE of Alabama).
    1101232.
    Supreme Court of Alabama.
    Feb. 24, 2012.
    Joseph Lester Pate, pro se.
    Luther Strange, atty. gen., and John C. Neiman, Jr., deputy atty. gen., and James B. Prude, asst. atty. gen., for respondent.
   BOLIN, Justice.

We granted certiorari review in order to determine whether the Alabama Court of Criminal Appeals erred in declining to review the circuit court’s refusal to consider Joseph Lester Pate’s motion for sentence modification.

Facts and Procedural History

Following a 1987 conviction for first-degree theft of property and his unsuccessful direct appeal of that conviction, see Pate v. State, 537 So.2d 76 (Ala.Crim.App. 1988) (table), Pate filed a Rule 32, Ala. R. Crim P., petition. The circuit court summarily denied his Rule 32 petition, in which Pate challenged his 1987 conviction and his sentence, as a habitual felony offender, to life imprisonment.

On June 4, 2010, Pate filed a second Rule 32 petition. In the petition, Pate asserted the following claims: 1) that his sentence is illegal because, he says, the trial court improperly used two of his prior controlled-substance convictions for sentence enhancement and the Uniform Controlled Substance Act (§ 20-2-1 et seq., Ala.Code 1975), which he says has its own sentencing scheme, applies to those two convictions, and 2) that the State failed to provide notice that it intended to proceed under the Habitual Felony Offender Act for sentence enhancement. Pate submitted an affidavit with his petition in which he alleged that the attorney who represented him in the underlying criminal proceeding had a conflict of interest because the attorney was subsequently arrested on drug-related charges.

On July 26, 2010, the State filed a motion to dismiss, asserting that the petition is barred by Rule 32.2(a)(3) because those claims could have been, but were not, raised at trial, by Rule 32.2(a)(5) because those claims could have been, but were not, raised on appeal, and by Rule 32.2(b) as a successive petition and asserting that Pate’s claims are without merit. On August 4, 2010, Pate filed a response to the State’s motion to dismiss. On August 23, 2010, Pate filed a motion to amend his Rule 32 petition. On September 20, 2010, Pate filed a motion for sentence modification pursuant to § 13A-5-9.1, Ala.Code 1975.

The circuit judges of the 24th Judicial Circuit recused themselves from this case, and on October 22, 2010, Judge Bradley Almond of Tuscaloosa County was appointed to hear this case. On November 4, 2010, Judge Almond issued an order denying Pate’s Rule 32 petition as procedurally barred by Rule 32.2(a)(3) and (a)(5) and stating the following:

“Additionally, in reviewing the AlaC-ourt electronically scanned case file materials in this case, it is apparent that the instant Rule 32 petition is not the first petition for postconviction relief [Pate] has filed. A previous postconviction petition, filed on July 24,1989, similarly attacked the application of the Habitual Felony Offender Act to him in this case. Therefore, Rule 32.2(b) also operates as a bar to this petition since that section mandates that ‘[t]he court shall not grant relief on a successive petition on the same or similar grounds on behalf of the same petitioner.’

“In addition to the Rule 32 petition, [Pate] has also filed a motion for sentence modification under § 13A-5-9.1, Ala.Code (Act No. 2001-977), which bears the date stamp of September 20, 2010. This Court notes, however, that on June 3, 2010, [Pate] filed the same Kirby [v. State, 899 So.2d 968 (Ala. 2004),] type motion. On June 9, 2010, the Pickens County Circuit Judge ‘denied’ the motion by handwriting that ruling on the face of the motion. That prior filing, and ruling, prevents this Court from considering the motion....”

The Court of Criminal Appeals affirmed the circuit court’s denial of Pate’s Rule 32 petition, without an opinion. Pate v. State (No. CR-10-0227, June 17, 2011), 107 So.3d 233 (Ala.Crim.App.2011) (table). Addressing Pate’s argument regarding his sentence-modification request, the Court of Criminal Appeals stated in its unpublished memorandum:

“To the extent that Pate argues that the circuit court erred in denying his motion for sentence reconsideration, we note that a request for sentence reconsideration is not a claim cognizable in a Rule 32 petition. See, e.g., Kirby v. State, 899 So.2d 968 (Ala.2004); Ferrell v. State, 944 So.2d 162, 163 (Ala.Crim. App.2006). Thus, Pate’s motion for sentence reconsideration should not have been filed as part of his Rule 32 petition. Rather, such a request should have been filed independently of any claims cognizable in a Rule 32 petition. Therefore, this claim is not properly before this Court for review.”

The Court of Criminal Appeals’ legal conclusion, based on the given set of facts, that Pate’s claim was not properly before it is a question of law that is reviewed de novo. Ex parte T.D.M., 117 So.3d 933 (Ala.2011).

Discussion

Pate contends that in not addressing the denial of his motion for sentence reconsideration the Court of Criminal Appeals incorrectly applied the law to the facts of his case. The record indicates that Pate filed his Rule 32 petition on June 4, 2010, and that he amended his Rule 32 petition on August 23, 2010. Pate did not raise the issue of sentence modification in his Rule 32 petition, nor did he raise that issue in the amendment to the petition. Pate filed a separate motion on September 20, 2010, seeking a modification of his sentence. The circuit court addressed both motions in one order. The Court of Criminal Appeals concluded that Pate’s motion for sentence modification was not properly before it for appellate review because a request for sentence modification is not a claim cognizable in a Rule 32 petition. Because the record supports Pate’s claim that his request for sentence modification was made in a separate motion, the Court of Criminal Appeals erred in concluding that the claim was not proper for appellate review. Accordingly, we reverse its judgment to the extent it held that the trial court’s ruling on Pate’s request for sentence reconsideration was not properly before it, and we remand the case for the Court of Criminal Appeals to review the circuit court’s denial of Pate’s motion for sentence modification.

REVERSED AND REMANDED.

MALONE, C.J., and WOODALL, STUART, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.


author: PER CURIAM. WELCH, Judge,

text:
    Joseph Lester PATE v. STATE of Alabama.
    CR-10-0227.
    Court of Criminal Appeals of Alabama.
    Sept. 28, 2012.
    Rehearing Denied Dec. 7, 2012.
    Joseph Lester Pate, pro se.
    Luther Strange, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WINDOM, P.J., and KELLUM, BURKE, and JOINER, JJ., concur.

WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

Joseph Lester Pate appealed from the denial of his latest motion seeking reconsideration of his sentence pursuant to § 13A-5-9.1, Ala.Code 1975. See Kirby v. State, 899 So.2d 968 (Ala.2004). Pate was sentenced to life in prison without the possibility of parole following his conviction for first-degree theft. In the motion, Pate sought to be resentenced.

The circuit court denied Pate’s Kirby motion because the court did not believe it had jurisdiction to consider a successive motion for sentence reconsideration. The majority in its unpublished memorandum affirming the circuit court’s decision correctly determines that, based on the authority of Ex parte Gunn, 99B So.2d 433 (Ala.2007), the circuit court’s belief was in error. “In Gunn, the Alabama Supreme Court overruled Wells v. State, 941 So.2d 1008 (Ala.Crim.App.2005), insofar as Wells purported to impose a jurisdictional limit of one motion for reconsideration of sentence per defendant per case.” Hannon v. State, 16 So.3d 818, 819 (Ala.Crim.App. 2009). Nevertheless, the majority affirms the denial of Pate’s Kirby motion because nothing in the record indicates that the circuit court did not properly consider Pate’s previous motion for sentence reconsideration.

For the reasons I expressed in my dissent in Ashford v. State, 12 So.3d 160 (Ala.Crim.App.2008), I respectfully dissent. I stated in Ashford:

“I agree with the majority that a circuit court may properly deny a motion for sentence reconsideration under § 13A-5-9.1, Ala.Code 1975, on the basis that such motion is successive, so long as at least one of the previous motions was properly considered in compliance with this Court’s opinion in Holt v. State, 960 So.2d 726 (Ala.Crim.App. 2006). However, in this case, the Court erroneously relied on this Court’s opinion in Wells v. State, 941 So.2d 1008 (Ala.Crim.App.2005), in denying Ash-ford’s motion.
“This case does not present a situation in which the circuit court believed it had jurisdiction to consider the motion but refused to do so on the basis that the motion was successive. Rather, the circuit court, based on earlier caselaw, was of the belief that it was precluded from considering the motion because it was without jurisdiction. I do not believe that a previous motion properly considered and denied cures the circuit court’s erroneous reliance on Wells, supra. Because the circuit court erroneously thought it did not have jurisdiction to rule on Ashford’s motion to reconsider, it did not reach the merits, if any, to Ashford’s motion to reconsider. I would reverse the circuit court’s judgment and remand this cause for the circuit court to review the motion and to enter judgment accordingly. Therefore, I respectfully dissent.”

Ashford v. State, 12 So.3d at 163.

Moreover, because the circuit court did not consider the motion, Pate was denied due process. The Alabama Constitution, Art. I, § 6, states that “the accused has a right to be heard.... ” While Pate was not literally entitled to a hearing, he was entitled to have his motion reviewed. “It is generally understood that an opportunity for a hearing before a competent and impartial tribunal upon proper notice is one of the essential elements of due process.” Ex parte Weeks, 611 So.2d 259, 261 (Ala. 1992). Pate’s motion was dismissed without any review of the merits of his claim because the circuit court erroneously believed that it lacked jurisdiction to entertain the motion. Under this circumstance, Pate was not afforded the opportunity for sentence reduction provided by § 13A-5-9.1, Ala.Code 1975, and Kirby. The circuit court had jurisdiction and, by not ruling on the motion, deprived Pate of due process. Additionally, because the circuit court did not enter a ruling, there was nothing for this Court to review on appeal. I do not believe this Court should affirm a decision on the basis that “the circuit court is correct for any reason” when the circuit court did not in fact enter a ruling.

As in Ashford, I would reverse the circuit court’s judgment and remand this cause for the circuit court to review the motion and to enter judgment accordingly. Thus, I must respectfully dissent.