author: BROWN, Chief Judge.

text:
    June FINCH, Plaintiff-Appellant v. HRI LODGING, INC., Defendant-Appellee.
    No. 49,497-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      June Finch, Pro Se, Appellant.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd, and Cromwell, LLP by Joseph S. Woodley, Shreveport, for Appellee.
    Before BROWN, LOLLEY, and GARRETT, JJ. '
   BROWN, Chief Judge.

|; June and Sudhir Finch were guests at the Hilton Hotel in Shreveport, Louisiana. In the early morning hours of March 23, 2012, Sudhir Finch was arrested at the hotel for domestic abuse. June Finch, acting in proper person, filed this action against defendant, HRI Lodging, Inc., alleging that the hotel failed to exercise reasonable care in protecting her from harm. The trial court granted a motion for summary judgment filed by defendant and plaintiff appealed. The issues presented are whether the trial court erred in striking plaintiffs late-filed, opposition memo and affidavit and in granting defendant’s motion for summary judgment. For the reasons set forth below, we affirm.

Facts and Procedural Background

The following facts are undisputed. Plaintiff, June Finch, and her then-husband, Sudhir Finch, were registered guests at the Hilton Hotel located at 104 Market Street in Shreveport, Louisiana on March 22-23, 2012. In the early hours of March 23, a guest in a room adjoining the one occupied by the Finches called the front desk with a noise complaint. John Thomas, a security officer employed by the hotel, went to the Finches’ room. Thomas first spoke with Mr. Finch, who came to the door and identified himself. When Thomas explained to Mr. Finch the reason for his visit, Mr. Finch apologized. Thomas then spoke with Mrs. Finch. According to the security officer, Mrs. Finch had a mark on the side of her nose, and when he asked her about it, she told him that she had injured herself earlier at a local nightclub. According to Mrs. Finch she had blood |2on the side of her face and matted in her hair. Thomas asked Mrs. Finch if she wanted medical attention; she declined. He also asked her if she wanted him to call the police; she declined that offer as well. Before leaving the couple, Thomas told them that he would call the police if any further complaints were received.

Later that morning, after Thomas had left the Finches, the Shreveport Police Department got a telephone call from a friend of the Finches in North Carolina who was worried after having received a hang-up call from Mrs. Finch. An officer was dispatched to the Finch room at the Hilton and Mr. Finch was arrested and charged with domestic abuse, a violation of La. R.S. 14:35.3(L). According to the trial court, Mr. Finch eventually pled guilty to the charge.

On March 22, 2013, plaintiff, June Finch, acting in proper person, filed a petition against defendant, HRI Lodging, Inc., seeking damages for injuries she sustained at the hands of her husband, Sudhir Finch, after the security officer had left the room. Specifically, Mrs. Finch contended that the facial, head and neck injuries she sustained when her husband battered her in the hotel room were proximately caused by defendant’s failure to exercise reasonable care in: training and supervising its employees regarding the handling of domestic disputes; protecting the safety and security of their guests; and, the security officer’s inadequate response to the situation between plaintiff and her husband, which caused her to sustain additional injuries.

IsDefendant filed its answer on April 23, 2013, then filed a motion for summary judgment on September 27, 2013. This motion was set for argument on December 2, 2013. Plaintiff filed a response to the motion for summary judgment, which included an affidavit, sent via fax on November 26, 2013. At the outset of the December 2, 2013, hearing, the trial judge noted that plaintiffs response was untimely. At that point, defense counsel moved to strike plaintiffs opposition and affidavit. The trial judge let plaintiff address the court, but rather than offer an explanation or excuse for the late filing, she argued (actually testified) about the facts as set forth in her affidavit. The trial court asked some questions of plaintiff.

Mrs. Finch told the court, “I don’t deny (that I told the security officer that I was fine) because I was in no position to do anything with my husband standing there ...” The court said, “I think I would call the police in whatever city I’m in.” Mrs. Finch responded by stating that in North Carolina both parties would go to jail, “you know, they can make up anything they want to make up and say you hit them and then you both go down.... ” When the court asked why didn’t she sue Mr. Finch, she responded that he did not have any money.

After defense counsel’s argument on the merits of the motion, the trial court found that plaintiffs opposition documents were not timely filed and therefore would not be considered. In granting defendant’s motion for summary judgment, the court further found that, based upon the information before the court, there was no duty on the part of the hotel to take action and [4in the alternative, if there was such a duty, there was no breach of this duty. It is from this judgment that plaintiff has appealed.

Discussion

Motion to Strike

Plaintiff first asserts that the trial court erred in striking her opposition memo and affidavit as untimely. As a pro se litigant, she contends that she attempted to comply with all of the procedural rules, and when she discovered her inadvertent error (that her response was actually due earlier than she thought), she faxed it to the court and opposing counsel. According to plaintiff, defendant was not prejudiced because it had the opposition filings well before the hearing. Under these circumstances, she argues that the trial court’s remedy, which was to strike plaintiffs memo and affidavit, was unduly harsh.

While pro se litigants should be allowed some latitude as they lack formal training in the law and its rules of procedure, see, Bankston v. Alexandria Neurosurgical Clinic, 94-693 (La.App.3d Cir.12/07/94), 659 So.2d 507, they do assume responsibility for their own inadequacy and lack of knowledge of both procedural and substantive law. Rader v. Dept. of Health and Hospitals, Office of Public Health, Engineering Services, 94-0763 (La.App. 1st Cir.03/03/95), 652 So.2d 644. Her failure to familiarize herself with the applicable procedural and substantive law does not give her any greater rights than a litigant represented by an attorney. Harrison v. McNeese State University, 93-288 (La.App. 3d Cir.03/23/94), 635 So.2d 318, writ denied, 94-1047 (La.06/17/94), 638 So.2d 1099.

| ¿La. C.C.P. art. 966(B)(1) provides that the party opposing a motion for summary judgment may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to La. C.C.P. art. 1313 within the time limits set forth in the Uniform Rules of Louisiana District Courts. District Court Rule 9.9(b) provides in part that a party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing.

The time limitation established by La. C.C.P. art. 966(B)(1) for the serving of affidavits in opposition to a motion for summary judgment is mandatory. Guillory v. Chapman, 10-1370 (La.09/24/10), 44 So.3d 272; Buggage v. Volks Constructors, 06-0175 (La.05/05/06), 928 So.2d 536. Untimely filings can be ruled inadmissible and properly excluded by the trial court. Oubre v. Louisiana Citizens Fair Plan, 11-0097 (La.12/16/11), 79 So.3d 987, cert. denied, — U.S. —, 133 S.Ct. 30, 183 L.Ed.2d 677 (2012); Buggage, supra. The purpose of requiring that the opposition memorandum be served on the mover at least eight days before the hearing is to allow both the court and parties sufficient time to narrow the issues in dispute and prepare for argument at the hearing. Buggage, supra; Mahoney v. East Carroll Parish Police Jury, 47,494 (La.App.2d Cir.09/26/12), 105 So.3d 144, writ denied, 12-2684 (La.02/08/13), 108 So.3d 88; Woodall v. Weaver, 43,050 (La.App.2d Cir.02/13/08), 975 So.2d 750. A trial court’s |fiexclusion of an opposition to a motion for summary judgment will be reviewed by the appellate court for an abuse of discretion. Id.

In the instant case, plaintiffs opposition was filed less than eight calendar days before the hearing, and was untimely under La. C.C.P. art. 966(B)(1) and District Court Rule 9.9(b). We find that the trial court did not abuse its discretion in striking the untimely opposition filings. However, we note that the trial court had read plaintiffs opposition and considered her in court argument/testimony. Plaintiffs affidavit as well as her argument/testimony before the trial court is included in the record. In Hubbard v. North Monroe Medical Center, 42,744 (La.App.2d Cir.12/12/07), 973 So.2d 847, unit denied, 08-0101 (La.03/07/08), 977 So.2d 907, this court allowed an untimely opposition to a motion for summary judgment due to fundamental fairness; however, this court then found that its content did not warrant reversal of the summary judgment ruling.

Summary Judgment

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Huey v. Caldwell Parish School Board, 47,704 (La.App.2d Cir.01/16/13), 109 So.3d 924, writ denied, 13-0395 (La.04/01/13), 110 So.3d 589. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to material fact and that the mov-ant is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(B). When a motion for summary judgment is properly |7made and supported, the adverse party may not rest on the mere allegations or denials of his pleading, but he must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). This requires the plaintiff to make a positive showing of evidence creating a genuine issue as to an essential element of her claim; mere speculation is not sufficient. Babin v. Winn-Dixie Louisiana, Inc., 00-0078 (La.06/30/00), 764 So.2d 37; Lewis v. Pine Belt Multipurpose Community Action Acquisition Agency, Inc., 48,880 (La.App.2d Cir.05/07/14), 139 So.3d 562, units denied, 14-0988, 14-1190 (La.08/25/14), 147 So.3d 1120, 1121. If the adverse party fails to produce the required factual support to show that she will be able to meet her evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is inappropriate. La. C.C.P. art. 966(C)(2); Lewis, supra.

In determining whether to impose liability under La. C.C. art. 2315, Louisiana courts perform a duty-risk analysis to determine whether liability exists under the facts and circumstances of a particular case. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.04/03/02), 816 So.2d 270. Under this analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to an appropriate standard of care; (8) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) actual damages. Id.; Huey, supra; Lowery v. Wal-Mart Stores, Inc., 42,465 (La.App.2d Cir. 09/19/07), 965 So.2d 980. Failure to prove any of the elements of the duty-risk analysis results in a determination of no liability. Huey, supra; Carroll v. State Farm Fire & Casualty Co., 31,652 (La.App.2d Cir.05/05/99), 782 So.2d 1263.

Under the traditional duty-risk analysis, whether a duty is owed is a question of law. Maw Enterprises, L.L.C. v. City of Marksville, 14-0090 (La.09/03/14), 149 So.3d 210; Hardy v. Bowie, 98-2821 (La.09/08/99), 744 So.2d 606. Duty is a threshold issue in any negligence action. Milbert v. Answering Bureau, Inc., 13-0022 (La.06/28/13), 120 So.3d 678; Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La.03/10/06), 923 So.2d 627. The inquiry is whether the plaintiff has any law-statutory, jurisprudential, or arising from general principles of fault-to support her claim. Hardy, supra; Lemann, supra. In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. Id.; Socorro v. City of New Orleans, 579 So.2d 931 (La.1991).

In the instant ease, plaintiff has alleged that defendant breached its duty to exercise reasonable care in the supervision and/or training of its employees, specifically its security officers. Other than this bare allegation, plaintiff has alleged no facts in support of this contention. See, Jackson v. Ferrand, 94-1254 (La.App. 4th Cir.12/28/94), 658 So.2d 691, writ denied, 95-0264 (La.03/24/95), 659 So.2d 496. Plaintiff has also alleged that defendant breached its duty to protect the safety and security of its guests |9from the unreasonable risk of physical harm from another guest which caused her to suffer further injury at the hands of her husband.

An innkeeper does not insure his guests against the risk of injury or property loss resulting from violent crime. Kraaz v. La Quinta Motor Inns, Inc., 410 So.2d 1048 (La.1982); Jackson, supra. Innkeepers have a duty to take reasonable precautions to protect their guests from the criminal activities of third parties on the hotel premises. Id.; Cangiano v. Forte Hotels, Inc., 00-40 (La.App. 5th Cir.10/31/00), 772 So.2d 879, writ denied, 00-3254 (La.01/26/01), 782 So.2d 636; Banks v. Hyatt Corp., 122 F.2d 214 (5th Cir.(La.) 1984).

When, as in the instant case, a business or an innkeeper undertakes the duty to provide security on and in its premises, the duty has been described as follows. In Dye v. Schwegmann Brothers Giant Supermarkets, Inc., 627 So.2d 688, 694-5, writ denied, 93-3111 (La.03/11/94), 634 So.2d 401, the Fourth Circuit observed, “Security cannot protect from every crime, and performance of a duty with due care will not protect from this type of crime (armed robbery and murder in the store parking lot) in every case. Our review of the facts leads us to conclude that Schweg-mann discharged its duty in a reasonable manner calculated to prevent patrons from criminal assault.” In Posecai v. Wal-Mart Stores, 99-1222 (La.11/30/99), 752 So.2d 762, 765, the Louisiana Supreme Court, in determining whether Sam’s Club owed a duty to Mrs. Posecai, who was the victim of an armed robbery in their parking lot, defined the merchant’s duty to provide security as a “duty to protect against the foreseeable criminal acts of third persons.”

| mThis duty does not extend to the unforeseeable or unanticipated criminal acts of third parties. Cangiano, supra; Ballew v. Southland Corp., 482 So.2d 890 (La.App. 2d Cir.1986). Only when the owner, management or employees of a business have or should have knowledge of a third person’s intended injurious conduct that is about to occur and which is within the power of the owner, management or employees to protect against, does the duty arise. Id.; Banks, supra.

In this case, the security officer did not breach the duty he, as an employee of defendant, owed to plaintiff, nor did he have a duty to act further because he neither knew nor should have known that Sudhir Finch, plaintiffs husband, posed a potential danger to plaintiff (i.e., Mr. Finch’s criminal acts against his wife were not foreseeable). Sudhir and June Finch checked into the Hilton together as husband and wife. They occupied one room together. There is no evidence that anyone at the hotel observed any discord or contentious behavior between the spouses prior to the noise complaint made by the guests in the adjoining room. When the security officer went to investigate the complaint, he saw and spoke with both Mr. and Mrs. Finch and, other than the security officer’s opinion that both appeared intoxicated, he did not observe anything that would cause him to think that Mr. Finch would later commit battery upon his wife. The security officer did see a facial injury and, as she admitted, Mrs. Finch told the security officer that she was fine and needed no medical attention. In conclusion, the incident that took place after the security officer’s investigation of the initial noise complaint was not foreseeable and therefore Inthe trial court did not err in granting summary judgment in favor of defendant based upon its conclusion that defendant’s duty did not extend to the protect plaintiff from the criminal conduct of her husband in this case. See, e.g., Millet ex rel. Millet v. Treasure Chest Casino, L.L.C., 02-1096 (La.App. 5th Cir.03/25/03), 844 So.2d 175.

Conclusion

For the reasons set forth above, the judgment of the trial court is AFFIRMED.

      . June has divorced Sudhir and has remarried.

      . Although the pleadings on file show that Mrs. Finch's address is Dayton, Ohio, she gave the trial court a North Carolina address.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Ashlee TIDWELL, Plaintiff-Appellant v. Todd Michael TIDWELL, Defendant-Appellee.
    No. 49,512-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Donald L. Kneipp, Monroe, Counsel for Appellant.
    Laurie Jo Burkett, E. Dion Young, Counsel for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   WILLIAMS, J.

|,The plaintiff, Ashlee Tidwell (“Ashlee”), appeals a judgment granting the defendant a divorce. The trial court found that the defendant had proved by a preponderance of evidence that the plaintiff committed adultery. For the following reasons, we affirm.

FACTS

Ashlee and Todd Tidwell (“Todd”) were married in October 1995, in Ouachita Parish, Louisiana. The parties have two children, who were 17 and 12 years old at the time of trial. In December 2012, Ashlee and Todd met Glenn Northcott (“Glenn”) at a party and they began visiting often with Glenn at his houseboat on the Ouachi-ta River. Ashlee began sending an increasing number of text messages to Glenn. In February 2013, Ashlee remained at Glenn’s houseboat after the other guests left and did not return home until early in the morning. On March 8, 2013, while Todd was at home, Ashlee went out for the evening with Glenn and another couple, Kathy and Karl Porter. Ashlee and Glenn spent the night at the Porters’ home.

On April 16, 2013, Ashlee filed for divorce under LSA-C.C. art. 102 seeking custody, child support, spousal support, and partition of community property. Todd filed an answer and reconventional demand under LSA-C.C. art. 103(2), alleging that Ashlee had committed adultery and was at fault in the breakdown of the marriage. After a hearing officer conference was held, a consent judgment was entered in February 2014, by which the parties resolved the issues of child support, custody and interim periodic spousal support.

|2At the divorce hearing, Ashlee did not appear and her deposition was introduced into evidence. Todd and two private investigators testified about the number of meetings between Ashlee and Glenn at her residence and his houseboat. After hearing the testimony, the trial court issued oral reasons finding that based upon the totality of the circumstances, Todd had proved by a preponderance of evidence that Ashlee had committed adultery. The court rendered judgment in favor of Todd Tidwell, granting a divorce based upon adultery. Ashlee Tidwell appeals the judgment.

DISCUSSION

Ashlee contends the trial court erred in applying the preponderance of evidence burden of proving adultery. Ashlee argues that this court should conduct a de novo review of the record because the trial court committed legal error in applying the incorrect burden of proof.

A divorce shall be granted on the petition of a spouse upon proof that the other spouse has committed adultery. LSA-C.C. art. 103(2). Generally, a petitioner has the burden of proving his claims by a preponderance of the evidence. Bynum v. Bynum, 296 So.2d 382 (La.App. 2d Cir.1974). A spouse may establish the other spouse’s adultery by indirect or circumstantial evidence as well as by direct evidence. If circumstantial evidence alone is relied upon, then the proof must be so convincing as to exclude any other reasonable hypothesis but that of guilt of adultery. Hayes v. Hayes, 225 La. 374, 73 So.2d 179 (1954); Bynum, supra. The facts and circumstances must lead fairly and necessarily to the conclusion that adultery has been committed as alleged in the petition. Marcotte v. Marcotte, 04-293 (La.App. 3rd Cir.11/10/04), 886 So.2d 671.

In the present case, Ashlee’s deposition was admitted into evidence. During her testimony, she admitted to having sex with Northcott a number of times after the date that her petition for divorce was filed. Thus, the situation of this case is not like that of Hayes and Marcotte, in which the complaining spouse relied solely on circumstantial evidence to prove adultery. Consequently, we cannot say the trial court erred in requiring that Todd prove Ashlee’s adultery by a preponderance of the evidence. This assignment of error lacks merit.

Ashlee contends the trial court was clearly wrong in finding sufficient evidence to prove that she committed adultery. She argues that Todd did not prove adultery because the private, investigators’ testimony failed to corroborate her admission of a sexual relationship with Northcott.

On appeal, a trial court’s factual determination regarding the commission of adultery is subject to the manifest error standard of review. Stobart v. State, DOTD, 617 So.2d 880 (La.1993); Poole v. Poole, 08-1325 (La.App. 3rd Cir.4/1/09), 7 So.3d 806. The issue to be resolved by the reviewing court is whether the factfinder’s conclusion was reasonable based on the record as a whole. Poole, supra.

An admission of adultery, without other evidence, is generally insufficient proof upon which to dissolve a marriage. Bonura v. Bonura, 505 So.2d 143 (La.App. 4th Cir.1987); Menge v. Menge, 491 So.2d 700 (La.App. 5th Cir.1986). Absent other evidence, the fact that a man and a woman are alone together does not necessarily justify presuming that the Rencounter is for romantic or sexual reasons. Wynn v. Wynn, 513 So.2d 489 (La.App. 2d Cir.1987). A trial court’s credibility evaluation in an adultery case is entitled to substantial weight on review. Lachney v. Lachney, 579 So.2d 1097 (La.App. 2d Cir.1991); Wynn, supra.

In the present case, Jan Marino testified that she was an investigator hired to conduct surveillance of Ashlee for one week in May 2013. Marino stated that on May 10, 2013, at 9:30 a.m. she saw North-cott’s vehicle parked at Ashlee’s residence. Marino testified that they left the home together at 12:45 p.m. in Ashlee’s vehicle and drove to the Highland Yacht Club, where Northcott’s boat was located. Mari-no stated that she saw Ashlee’s vehicle parked near the boat at 1:45 p.m. Marino testified that she checked the lot each subsequent hour during the day and Ashlee’s vehicle remained in the same parking space until she ended her surveillance at midnight.

Another investigator, Donna Caldwell, testified that she took over for Marino at 12:15 a.m. and saw Ashlee’s vehicle in the parking lot. Caldwell.stated that at 1:30 a.m., she observed Northcott standing beside the vehicle talking with Ashlee, who was in the driver’s seat.

During her deposition, Ashlee was asked about an occasion on April 20, 2013, when she was seen at the boat late at night. She denied having sex with Northcott that night and stated she did not know the date when their sexual relationship began. The deposition continued:

Q: Was it in May?
A: Or June.
Q: Or June. How many times did you have sex with him?
A: Maybe five or six times.
Q: And that occurred where?
A: The boat, and then maybe once at his house.

|fiThe record shows that Ashlee admitted to having sex with Northcott during the marriage and that their sexual relationship could have begun in May 2013. The testimony of the investigators indicated that Ashlee was alone with Northcott in the boat for many hours on May 10, 2013. She acknowledged being on the boat with him that day. Although by itself, evidence that a man and a woman are alone does not necessarily mean that the meeting is for sexual reasons, here Ashlee admitted to having sex with Northcott on his boat, but she did not specify the date. The authority cited by Ashlee in her brief does not support her assertion that the circumstantial evidence can corroborate her admission of adultery only if she specifically admitted to having sex on the same date she was observed going to the boat with Northcott.

After hearing the evidence and weighing the credibility of the witnesses, the trial court found that Todd satisfied his burden of proving that Ashlee committed adultery by a preponderance of the evidence based upon Ashlee’s admission of adultery coupled with the testimony concerning the times and places of her meetings with Northcott. After reviewing the record as a whole, we cannot say the trial court’s factual determination in this close case was clearly wrong. Thus, the assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Ashlee Tidwell.

AFFIRMED.


text:
    Claudine Mason McCoy DELANEY, Plaintiff-Appellant v. Mack Allen McCOY, Sr., Defendant-Appellee.
    No. 49,523-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Sean D. Miller, for Appellant.
    James L. Fortson, Jr., Shreveport, for Appellee.
    Before BROWN, WILLIAMS, and PITMAN, JJ.
   BROWN, Chief Judge.

|,Twenty-eight years after a judgment of marital separation and an entry of community property settlement, and upon defendant Mack Allen McCoy’s retirement, plaintiff, Claudine Mason McCoy Delaney, filed a supplemental petition for partition of community property seeking a pro rata share of defendant’s retirement benefits based on the number of years of marriage. The district court sustained defendant’s exception of res judicata. This court reversed and remanded in Delaney v. McCoy, 46,103 (La.App.2d Cir.04/13/11), 63 So.3d 327, finding that defendant had failed to introduce the community property settlement and other evidence of the prior proceeding. On remand, the district court received the evidence and denied exceptions of no cause or right of action but again sustained the exception of res judi-cata. This court again reversed and remanded for trial. See Delaney v. McCoy, 47,240 (La.App.2d Cir.06/20/12), 93 So.3d 845.

Now, plaintiff appeals from the trial court’s judgment in favor of defendant which found that, in accord with Hare v. Hodgins, 586 So.2d 118 (La.1991), plaintiff was entitled to retirement benefits based upon the rank of driver which defendant, who retired as deputy chief, held with the Shreveport Fire Department at the termination of the community regime in 1979. We affirm in part, reverse in part, and remand for further proceedings.

Facts and Procedural Background

Defendant began working for the Shreveport Fire Department on |?November 17, 1969. Through his employment with the department, defendant accrued retirement benefits. From May 1, 2004, through April 30, 2007, defendant was in a Deferred Retirement Option Plan (“DROP”). He retired from the department on January 1, 2008, having accumulated a total 38.1232 years with the department, of which 35.2321 were creditable service years. The three years in the DROP plan do not count as creditable service, as the employee actually retires and draws his retirement benefits which are paid into a savings account, and he continues to work, drawing his regular salary for up to three years.

The parties were married on November 16, 1973. On June 27, 1979, defendant filed a petition for separation. On July 10, 1979, a judgment of separation was entered terminating the community property regime between the parties. On September 19, 1979, plaintiff filed a petition for settlement of the parties’ community property. During the course of the proceedings, plaintiff propounded interrogatories to defendant regarding the existence of a retirement plan, profit sharing, or stock purchase plan. He answered, “the parties have no vested interest in any retirement plan.”

On December 14, 1979, a judgment was entered ordering that the community property be partitioned. The trial court at that time found that defendant had no retirement benefits which were community property. On January 16, 1980, the parties entered into an extrajudicial agreement partitioning the community property in kind. On January 29, 1980, on joint motion of the parties, the trial court signed a judgment dismissing the case with prejudice.

Is At the time of the termination of the community property regime in 1979, defendant had attained the rank of driver with the fee department. Thereafter, defendant moved up in rank-from captain to district chief to assistant chief to deputy chief. Deputy chief, of which the Shreveport Fire Department has only one, is the second highest rank, and the highest non-appointed rank, in the fire department.

In 2008, after defendant retired from the fire department, plaintiff filed a supplemental petition for partition of community property, alleging that defendant’s retirement benefits which accrued during the marriage had been omitted from the prior community property partition. She alleged that the parties were married for 2,050 days and she requested her proportionate share of defendant’s retirement benefits as well as. her share of his retirement benefits deposited during his participation in the DROP program.

Defendant filed exceptions of res judica-ta and no right and no cause of action. The trial court denied the exceptions. Defendant filed a motion for rehearing in the trial court, alleging the discovery of the prior extrajudicial community property settlement agreement. He claimed that the document contained language of transaction and compromise. While denying the exceptions of no cause and right of action, the trial court granted the exception of res judicata. In reasons for judgment, the trial court stated:

As the record reflects this matter was before the Court in 1979 on a partition suit and the judgment of the trial court in 1979 case [was] that the Court at that time found that Mr. McCoy had no retirement benefits that were accrued during the community. As a matter of fact, the Court in 1979 found that Mr. McCoy had no retirement benefits which were community | 4 property, and as a matter of fact, were not listed in the list of assets recognized as community property in the judgment. Subsequent to the judgment rendered in 1979 the parties entered into a voluntary transaction and compromise, entitled “Community Property Settlement” and in this community property settlement it indicates that there was a settlement of all claims that either party have or may have against the community of acquets and gains ‘formerly existing. The jurisprudence is clear that compromise and transaction has the authority of a thing adjudged and forms the basis of Res Judicata.

Plaintiff appealed the trial court decision granting the exception of res judicata. See Delaney v. McCoy, 46,103 (La.App.2d Cir.04/13/11), 63 So.3d 327. In that opinion, this court noted that the trial court mentioned the record of the prior proceedings in granting the exception of res judi-cata, but the record of the prior lawsuit, the judgment, and the extrajudicial community property settlement were not introduced into evidence. This court denied defendant’s motion to supplement the record with the absent documents because they were not introduced into evidence in the trial court. This court reversed the trial court judgment and remanded for further proceedings.

On remand, a hearing was held and all pertinent suit records regarding the partition were filed into evidence along with the extrajudicial community property settlement. The trial court again granted the exception of res judicata and denied the exceptions of no right and no cause of action. The trial court incorporated the reasons for judgment given for the prior judgment. Plaintiff again appealed. This court reversed and remanded. See Delaney v. McCoy, 47,240 (La.App.2d Cir.06/20/12), 93 So.3d 845.

|fiOn remand, the trial court found that plaintiff was entitled to her pro rata share (5.614 years of a total 35.1232 years of creditable retirement service) of defendant’s retirement benefits, but that her marital portion would be reduced and determined based on the salary defendant earned as a driver for the Shreveport Fire Department as opposed to his final position as deputy chief. The trial court’s holding was based upon its determination that defendant’s post-community effort and achievement caused a substantial increase in the subject retirement benefits. Plaintiff has appealed, urging two assignments of error.

Discussion

The general rules provided by law for partitioning community property are applicable to dividing a community pension right. Hare v. Hodgins, supra. In Sims v. Sims, 358 So.2d 919 (La.1978), the supreme court held that a party has an interest in a former spouse’s pension funds or rights when they become actually payable to or for the former spouse, in the proportion that they are attributable to the former spouse’s employment during the community. The community interest in an unmatured retirement plan is expressed as a fraction (the “fixed percentage”) of which the numerator represents the number of years of creditable service that accrued during the existence of the community and the denominator represents the total years of creditable service. The community fraction is multiplied by one-half to determine the nonemployee spouse’s share of the retirement benefits. Sims, supra.

|fiIn Hare, supra, the supreme court recognized that the rule set forth in Sims would not always be equitable in the instance of a substantial post-community increase to a retirement fund that was due to a singular personal factor such as individual effort, education or achievement which resulted in a merit raise or an extraordinary promotion or series of promotions. Thus, the Hare decision established a three-part test for the partitioning court to apply in determining whether a substantial post-community increase is due purely to personal merit. First, the increment must represent a fairly substantial increase in the employee spouse’s post-community earnings. Second, the increment must not be due to non-personal factors, such as cost of living raises, etc. Third, the increment must be attributable to the employee spouse’s meritorious individual efforts or achievements. Hare, supra; Welker v. Welker, 41,945 (La.App.2d Cir.03/07/07), 954 So.2d 225. The employee spouse has the burden of production of the evidence and persuasion; cases of doubt should be resolved in favor of the community and against the employee spouse’s separate estate or subsequent marital community. Hare, supra; Bullock v. Owens, 35,078 (La.App.2d Cir.09/26/01), 796 So.2d 170.

Plaintiff argues that the trial court erred in finding that defendant presented evidence sufficient to prove a substantial post-community increase, and whether that increase was caused by merit raises or an extraordinary promotion or series of promotions. Plaintiff contends that each promotion defendant received was ultimately based upon seniority and not based upon any proven individual effort, education, or achievement.

|7As it pertains to defendant’s burden of proving that his post-community earnings constituted a substantial increase, the testimony of Perry McDaniel, former district chief with the Shreveport Fire Department and seven-year member of the civil service board, established that with each promotion a fireman is moved into a new pay grade. The record establishes that defendant reached the rank of deputy chief. There is only one deputy chief; this position is the second highest rank in the department and the highest non-appointed rank. During the 38 years that defendant was with the fire department, testimony reveals that approximately eight people attained the rank of deputy chief. Defendant went from the second lowest pay grade to the highest non-appointed pay grade. Clearly, defendant met his burden of proving a substantial post-community increase in earnings.

The testimony of defendant and five fellow firemen, all with at least 30 years with the department, exhibited that to promote from a certified driver to captain one has to apply to take a promotional test, study for that test and, once promoted, go through a one-year working test period with monthly evaluations. After that, a fireman would become certified in that rank. Of those certified, the one senior in years gets the promotion. The same holds true for each promotion thereafter — captain to district chief to assistant chief to deputy chief — except that the promotional test for each subsequent level is cumulative in nature and grows increasingly more difficult. The testimony revealed that each promotional exam required extensive study and/or schooling to pass. Without this personal effort, all firemen testified, one could not achieve certification for the higher rank.

1 sWhile we are cognizant of the fact that seniority was certainly a factor in defendant’s promotions, the record reflects that other factors, such as passage of the promotional tests and successfully completing the one-year working test period, were also requirements to promote to a higher rank. The trial court determined these facts to be sufficient to trigger application of the Hare exception to apportion plaintiffs share of the retirement benefits.

In order to reverse a factual determination by the trier of fact, an appellate court must apply a two-part test: (1) the appellate court must find that a reasonable factual basis does not exist in the record for the finding; and (2) the appellate court must further ■ determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). The manifest error standard of review applies to all factual findings, including a finding relating to the factual (as opposed to legal) sufficiency of evidence to warrant application of a legal theory or doctrine. Hall v. Folger Coffee Co., 03-1734 (La.04/14/08), 874 So.2d 90. This standard of review also applies to mixed questions of law and fact, such as the issue of whether the facts found by the trier of fact trigger application of a particular legal standard. Id.

Considering the aforementioned, we do not find the trial court’s application of the Hare exception to be manifestly erroneous.

Alternatively, plaintiff contends that the trial court erred when it determined that under the normal course of events, defendant’s highest |9income would have been that of driver employed with the fire department in 2004.

Our review of the record finds that there is no evidence presented as to when defendant took the captain’s promotional test. As previously stated, an aspiring captain must first take and pass the promotional test. This personal effort gets him placed on the promotion list. Promotions to higher ranks are based on seniority. If defendant exerted the personal effort of, among other things, studying and passing the captain’s promotional test during the existence of the community, his subsequent promotion, even though post-community, would have been the result of seniority.

Moreover, the trial court’s decision to allocate plaintiffs share of the retirement benefits at the pay grade of a driver with the Shreveport Fire Department at its 2004 pay schedule also raises questions. Do all drivers make the stated pay, or is this the starting pay for a driver? Defendant was with the fire department over 38 years. He testified that every year with the department he received a two percent pay increase. Even more, the 2004 pay schedule states that “Employees in the above classifications begin the 2% longevity pay plan after three years of employment.” As such, we find that there is inadequate proof in the record to determine what defendant’s salary would have been, had he remained a driver at the time of his retirement, after 38 years with the fire department.

| mConsidering that the burden of proof rests with defendant and that cases of doubt should be resolved in favor of the community and against the employee spouse’s separate estate, we find that the trial court’s decision to arbitrarily base plaintiffs benefits on the Shreveport Fire Department’s 2004 pay schedule was clearly wrong. Based on the record before us, we cannot make a determination as to whether the decision to classify defendant as a driver as opposed to a captain was clearly wrong. Therefore, we find it necessary to remand this matter to the trial court for a more thorough and accurate computation of the benefits to which plaintiff is entitled.

We also note that the trial court’s judgment failed to make a determination regarding plaintiffs entitlement to any other retirement benefits, in particular, defendant’s DROP proceeds. Survival benefits and DROP proceeds are subject to community property division to the extent they are attributable to the community. See Smith v. Smith, 36,910 (La.App.2d Cir.03/14/03), 839 So.2d 1255; See also, Bullock, supra. This is a determination to be made on remand.

We further note that the trial court included its judgment in its reasons for judgment. A “judgment” and “reasons for judgment” are two separate and distinct legal documents. La. C.C.P. art. 1918 provides:

A final judgment shall be identified as such by appropriate language. When written reasons for the judgment are assigned, they shall be set out in an opinion separate from the judgment.

|1T Conclusion

For the foregoing reasons, we affirm that part of trial court’s judgment which found that defendant met his burden of proof as set forth in Hare, supra, with regard to any rank attained higher than captain. We reverse that part of the judgment which based plaintiffs benefits on the salary of a driver as set forth on a 2004 pay schedule. And lastly, we remand these proceedings to the trial court for further determination as to whether plaintiff is entitled to a portion of benefits based upon defendant’s salary as a driver or captain; for a more thorough computation as to what salary defendant would have attained at that rank considering his two percent longevity pay increase; and, for a determination of plaintiffs entitlement to any other retirement benefits. Costs of this appeal are assessed evenly among the parties.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . This portion of the opinion comes primarily from the opinion in Delaney v. McCoy, 93 So.3d at 847-8.

      . The record does contain some tax records and W2s from when defendant was a driver, but the quality of the copies makes it impossible for us to make an accurate calculation.


text:
    STATE of Louisiana, Appellee v. Gary Anthony BAILEY, Jr., Appellant.
    No. 49,362-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Douglas L. Harville, for Appellant.
    Gary Anthony Bailey, Jr., Pro Se.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Assistant District Attorney, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   WILLIAMS, J.

_JjThe defendant, Gary Anthony Bailey, Jr., was charged by bill of information with simple burglary, in violation of LSA-R.S. 14:62. He was found guilty as charged and was sentenced to serve 10 years in prison at hard labor with credit for time served. Subsequently, the defendant was adjudicated a fourth-felony offender and was sentenced to serve life in prison without the benefit of parole, probation or suspension of sentence.

For the following reasons, we hereby vacate the 10-year sentence imposed in the underlying conviction. We remand this matter to the trial court with instructions to amend the minutes to correctly reflect that, pursuant to LSA-R.S. 15:529.1(D)(3), the defendant’s 10-year sentence is vacated. As amended, we affirm.

FACTS

On May 22, 2012, a jury found the defendant guilty as charged of simple burglary. Subsequently, the defendant was sentenced to 10 years at hard labor. This Court affirmed the defendant’s conviction and sentence. State v. Bailey, 48,042 (La.App.2d Cir.5/15/13), 115 So.3d 739, writ denied, 2013-1385 (La.12/6/13), 129 So.3d 530.

On June 18, 2013, while the defendant’s writ application was pending in the supreme court, the state filed a habitual offender bill of information, alleging that the defendant had five prior felony convictions: (1) attempted unauthorized entry of a business on August 8, 1990, Docket No. 68,593 in the 26th Judicial District Court; (2) simple burglary of an inhabited dwelling on May 12, 1994, Docket No. 77,692 in the 39th Judicial |2Pistrict Court; (3) simple escape on August 10, 1995, Docket No. 79,888 in the 39th Judicial District Court; and (4)-(5) two counts of molestation of a juvenile on November 15, 2007, Docket No. 37,604 in the Second Judicial District Court.

On July 2, 2013, the defendant was arraigned as a fifth-felony offender and entered a plea of not guilty. On July 10, 2013, the defendant filed a pro se objection to the habitual offender bill of information, asserting the following arguments: (1) he did not qualify as a habitual offender because the prior offenses were not the “same or like” offenses; (2) he had not committed the “same or like” offenses within a 10-year period; (3) the habitual offender bill was “defective and meritless”; and (4) the state had not provided him with the bill of information or responses to discovery prior to the deadline for filing his objections.

On July 11, 2013, the defendant filed a request for discovery of items, including “medical examinations or psychological evaluations of the defendant.” The trial court granted the defendant’s request for discovery, and the state provided the defendant with a copy of the following documents:

Docket No. 77692 — Red River Parish— 39th Judicial District Court, Bill of Information No. 77692 — Simple Burglary Inhabited Dwelling, Transcript of Colloquy of Guilty Plea — May 12,1994
Docket No. 79888 — Red River Parish-39th Judicial District Court, Bill of Information No. 79888 — Simple Escape, Transcript of Colloquy of Guilty Plea-August 10,1995
Docket No. 37604 — Bienville Parish— 2nd Judicial District Court, Indictment-37604 — Molestation of a Juvenile (2 Counts), Indictment 37604 — Sexual Battery, Minutes of Court — 37604, Fingerprints of Gary A. [sBailey
Docket No. 189924 — Bossier Parish— 26th Judicial District Court, Bill of Information No. 189924 — Simple Burglary, Minutes of Court — 189924, Transcript of Sentencing — August 14, 2012

Thereafter, the defendant, through counsel, filed a motion to quash three of the convictions enumerated on the habitual offender bill, arguing that the state had not provided a means to identify the defendant as the same person who pled guilty to the prior offenses. After defense counsel filed the motion to quash, the defendant terminated her services. At an appearance before the trial court on August 6, 2013, the defendant informed the court that he had terminated counsel’s services and had chosen to represent himself. The trial court advised the defendant of his right to be represented by an attorney. In open court, defense counsel provided the defendant with a copy of the motion to quash that had been filed on his behalf.

On August 14, 2013, the defendant filed a pleading entitled “Motion to Dismiss and Accept.” In that document, the defendant requested that the motion to quash, filed by his prior counsel, be withdrawn. He argued that counsel had been “fired” for “intentional deception and betrayal” and that he disagreed with her decision to seek to quash only a portion of the habitual offender bill. Again, the defendant asserted that he was not eligible for an enhanced sentence.

| ¿Thereafter, the defendant filed a myriad of motions, including a motion for a preliminary examination, change of venue and responses to discovery. The court denied the motion for a preliminary examination, finding that the defendant was not entitled to a preliminary exam in a habitual offender proceeding. The court also denied the motion for change of venue, finding that a motion for change of venue was a pre-trial motion, and was not appropriately filed following a conviction. Further, the court denied the defendant’s requests for discovery, in which he had requésted the victims’ contact information, psychiatric reports, medical records, criminal records, police reports and transcripts of all proceedings. The defendant did not assert an argument with regard to the motion to quash, alleging that he was unable to do so because he had not been provided with proper responses to requests for discovery. He also argued that he was not eligible for an enhanced sentence because “[the offense] has to be a same or like offense within those ten years.”

The habitual offender hearing was held on October 29, 2013. Again, the trial court advised the defendant of his right to counsel; however, the defendant expressly waived that right and chose to continue representing himself.

On morning of trial, the defendant requested a continuance, stating that he had not received all necessary responses to his requests for discovery. The state advised that all discovery documents had been forwarded to the public defender’s office. Defendant’s prior counsel was called to testify regarding the motion for continuance. She testified that she|fihad provided the defendant with the entire public defender’s office file on October 1, 2013. The trial court denied the motion to continue and the trial commenced.

Detective Jonathan Jackson, of the Bossier Parish Sheriffs Office, was called to testify as an expert in the field of fingerprint identification and comparison. The defendant stated that he did not have any objections to Detective Jackson’s qualification as an expert in that field. Thereafter, Detective Jackson obtained the defendant’s fingerprints in open court and compared them to the fingerprints contained in the defendant’s records of prior convictions. Before Detective Jackson could respond to questions regarding comparison of the fingerprints, the defendant stated:

I’m not contesting probably any of the convictions. I’m contesting the charges themselves in accordance with R.S. 15:529.1. It has to be a same [or] like offense and it has to be within ten years.

The trial court instructed the district attorney to proceed with questioning Detective Jackson. The detective testified that the fingerprints obtained from the defendant in open court were the same as those in the 2012 conviction for simple burglary. The fingerprint card from the 2012 conviction was introduced into evidence. Also introduced into evidence was the record of the 1989 conviction for attempted unauthorized entry of a business, the record and fingerprints of the defendant’s 1994 conviction for burglary of an inhabited dwelling, and the record of the defendant’s 2004 conviction of molestation of a juvenile. The defendant specifically stated that he did not have any objections to the fingerprint cards and records pertaining to the prior convictions being placed into evidence.

|fiThe trial continued and the defendant did not present any evidence. Rather, he relied on his legal argument, which was based on his own interpretation of LSA-R.S. 15:529.1. The defendant argued that the statute provided that the time spent in jail is not included in the computation of the ten-year period between the expiration of a sentence and the next succeeding offense under LSA-R.S. 15:529.1(C). The district court noted the defendant’s objection misinterpreting the statute and stated:

[The statute] talks about the calculation of probation while you’re incarcerated— and not the fact that you were incarcerated. So, the fact that and — and the conclusion of your sentence doesn’t simply conclude upon your release from jail. If you had additional parole time or anything, all of that time is calculated and that — that period of ten years— there was no one period of ten years where you went without some, being on some type of sentencing be it either-probation or parole or incarceration.

The trial court adjudicated the defendant as a fourth-felony habitual offender based upon the convictions for simple burglary, attempted unauthorized entry of a business, simple burglary of an inhabited dwelling, and molestation of a juvenile. Thereafter, the defendant waived the sentencing delays and was sentenced to life imprisonment at hard labor, without the benefit of parole, probation or suspension of sentence. He did not file a motion to reconsider sentence.

The defendant appeals.

DISCUSSION

The defendant contends the sentence imposed is constitutionally excessive. He argues that a sentence of life imprisonment, without the benefit of parole, probation, or suspension of sentence, for a conviction of 17simple burglary, is grossly disproportionate to the severity of the offense. The defendant asserts that a trial court may reduce a habitual offender punishment if the sentence makes no measurable contribution to the acceptable goals of punishment. State v. Dorthey, 628 So.2d 1276 (La.1993).

As stated above, the defendant did not file a motion to reconsider sentence. When a defendant fails to timely file a motion to reconsider sentence under LSA-C.Cr.P. art. 881.1, the appellate court’s review is limited to a bare claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Boyd, 46,321 (La.App.2d Cir.9/21/11), 72 So.3d 952.

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 needless pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Fatheree, 46,686 (La.App.2d Cir.11/2/11), 77 So.3d 1047. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166. In the instant case, the defendant was adjudicated a fourth-felony habitual offender. LSA-R.S. 15:529.1(A)(4) provides for the sentencing of an offender adjudicated as a fourth-felony offender as follows:

If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by Isimprisonment for any term less than his natural life then:
(b) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Two of the defendant’s felony convictions — simple burglary of an inhabited dwelling and simple burglary — were each punishable by imprisonment for 12 years. One of the other felony convictions, molestation of a juvenile, is a sex offense as defined in LSA-R.S. 15:540 et seq; the victims were “under the age of eighteen at the time of commission of the offense.” Therefore, this defendant’s fourth felony and two of his prior offenses were a combination of crimes specifically delineated in LSA-R.S. 15:529.1(A)(4).

Additionally, during the sentencing hearing for the underlying offense, the trial court reviewed the presentence investigation report, which |8revealed a myriad of arrests and nol prossed charges. The court also noted the trial testimony of the defendant regarding his personal background, familial background and extensive criminal history, which began as soon as the defendant dropped out of high school.

We have reviewed this record, as well as the record in the underlying matter. We find that the defendant’s sentence is not constitutionally excessive. Considering the defendant’s extensive criminal history (particularly his propensity to commit crimes similar to the instant offense), the sentence imposed by the trial court does not shock the sense of justice, nor is it disproportionate to the severity of the offense. Further, based upon the defendant’s criminal history and adjudication as a fourth-felony offender, we find that the imposition of the statutorily mandated life sentence makes a measurable contribution to the acceptable goals of punishment. While the imposition of a life sentence may, in some cases, be disproportionate to a conviction for simple burglary, the record reveals that this defendant is within the class of offenders for which the legislature intended to enhance punishment by enacting the habitual offender law. Accordingly, these assignments are without merit.

| inPro Se Assignments of Error

The defendant contends he was not informed of his right to remain silent and his right against self-incrimination during the habitual offender proceedings. He argues that he admitted to the prior convictions at the hearing without being informed of his right not to do so.

In State v. Harris, 95-0900 (La.5/19/95), 654 So.2d 680, following an adjudication as a multiple offender, the defendant applied for post-conviction relief, arguing that the trial court failed to advise him of his rights before he stipulated to his identity. The Louisiana supreme court stated:

Admissions of identity at a multiple offender hearing implicate a defendant’s Fifth Amendment privilege against self-incrimination. Nevertheless, multiple offender proceedings ‘simply should not be equated (at least for purposes of determining the validity of an admission) to trials of guilt or innocence.’ This Court has therefore declined to adopt as a constitutional prerequisite to a valid admission of identity at a multiple offender proceeding a procedure analogous to the Boykin colloquy which must accompany a valid plea of guilty. In the absence of any allegation or showing that the admission was involuntary, the availability of post-conviction relief turns on whether the proceedings as a whole accorded the petitioner fundamental fairness and due process of law.
A complete review of the transcript reveals that the petitioner was given a fundamentally fair hearing wherein the state proved the prior felony convictions.

Id. (Internal citations omitted).

In the instant case, it is undisputed that the trial court did not advise the defendant of his right to remain silent during the habitual offender proceeding. After the defendant stated that he was not contesting any of his | n prior convictions, the state introduced into the record evidence that established that the defendant was the person who had been convicted of the prior offenses. Consequently, the state did not rely solely upon the defendant’s admission of identity as proof of his habitual offender status. We find that the record herein clearly reflects that the defendant was given a fundamentally fair hearing, during which the state proved the prior felony convictions. Thus, these assignments lack merit.

The defendant also contends various procedural defects in the habitual offender proceedings constitute grounds for vacating his adjudication as a multiple offender. Specifically, he asserts the following arguments: the state knew of his prior felony convictions prior to the trial on the underlying offense, but did not charge him as a habitual offender until after he had been convicted and sentenced; and his prior convictions were not the “same or similar” to the underlying offense; therefore, he was not eligible for an enhanced sentence.

LSA-R.S. 15:529.1(D)(1) provides as follows:

If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, • which, if committed in this state would be a felony, the district attorney of the parish in which the subsequent conviction was had may file an information accusing the person of a previous 112conviction.

In State v. Muhammad, 2003-2991 (La.5/25/04), 875 So.2d 45, the defendant was adjudicated a fourth-felony offender; however, the court of appeal set aside the adjudication and remanded the matter for further proceedings. Thereafter, the state refiled a multiple, offender bill of information charging the defendant as a fourth-felony offender. In the meantime, the defendant had served his prison sentence and had been released from custody. Following another hearing, the defendant was, again, adjudicated a fourth-felony offender and was sentenced to life in prison. The defendant appealed, arguing that he could not -be charged as a multiple offender because he had completed his prison sentence on the underlying charge. The court of appeal determined that the habitual offender proceedings must be instituted before the sentence for the underlying felony is completed. The supreme court granted the state’s writ application to consider whether any particular prescriptive period applied to LSA-R.S. 15:529.1. The court stated:

Review of the statute reveals the absence of a prescriptive time period for completion of the habitual offender proceeding. Wording of the statute indicates the legislature contemplated the multiple offender proceeding couíd be brought against an individual who was not incarcerated.
[W]e find an evaluation of the circumstances surrounding the multiple offender proceedings should be conducted on a case by case basis. In the process, the court can assure that [the] defendant’s due process rights are protected. Any inordinate delays or bad faith on the part of the State to prejudice the defendant in any fashion would be subject to the scrutiny of the court.
Although the statute does not prescribe a time within 113which the bill must be filed, this court has made a determination that the district attorney must file the habitual offender bill ‘within a reasonable time.’ Relying on the language of the statute regarding the filing, as opposed to the completion of a habitual offender proceeding, this court previously held that the statute ‘does not allow an indefinite time in which the district attorney may file the multiple offender bill once the necessary information is available.’
An important factor to consider in determining whether the bill was filed timely requires a determination of when the district attorney acquired the knowledge that defendant is a multiple offender. The determination of whether the hearing is held within a reasonable time hinges on the facts and circumstances of the specific case.

State v. Muhammad, 875 So.2d at 52, 54 (internal citations omitted).

In the instant case, the defendant was convicted of the charge of simple burglary on May 22, 2012, and he was sentenced on August 14, 2012. During the sentencing hearing, the trial court informed the defendant, “Your criminal record classifies you as a sixth felony offender.” The defendant filed an immediate appeal; his sentence and conviction were affirmed by this Court on May 15, 2013. However, the conviction/sentence was not final because, by that time, the defendant had filed a writ application with the supreme court. While the writ application was pending, on June 18, 2013, the state filed the habitual offender bill of information.

We find that, under the facts of this case, the state did not act unreasonably in deciding to wait to file the habitual offender bill after this court affirmed the defendant’s underlying conviction and sentence. The defendant was aware that he had multiple felony convictions, and he had been informed by the trial court that he was a sixth-felony offender. As Instated above, this court affirmed the defendant’s conviction and sentence on May 15, 2013, and the state filed the multiple offender bill of information approximately one month later. We do not find that the delay in filing the bill constituted an “inordinate delay” and there was no indication that the state acted in bad faith.

Moreover, the defendant’s assertion that the prior felony convictions be the “same or similar” offenses as the current offense is based upon a Black’s Law Dictionary definition of “habitual offender.” However, Louisiana’s habitual offender statute does not require that the prior felony convictions be the “same or similar” offenses as the current offense. Pursuant to LSA-R.S. 15:529.1, the defendant must have been convicted of a felony “under the laws of this state, or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, which, if committed in this state would be a felony.”

Herein, the defendant’s prior crimes of conviction were felonies under the laws of the State of Louisiana; therefore, they were eligible for inclusion as predicate felonies under the habitual offender statute. Accordingly, we find that the defendant was eligible for an enhanced sentence under LSA-R.S. 15:529.1. These assignments are without merit.

Further, the defendant contends more than 10 years had elapsed between the commission of the current crime of conviction and the prior felonies. According to the defendant, the time that elapsed during his frequent jail terms and periods of parole and/or probation should not be calculated against him.

hsLSA-R.S. 15:529.1(C) provides that the habitual offender statute is inapplicable in cases where more than 10 years have elapsed since the expiration of a defendant’s maximum sentence for a prior conviction and the commission of the defendant’s last felony. This is known as the “cleansing period” and it begins to run from the date a defendant is actually discharged from state custody and supervision. State v. Anderson, 349 So.2d 311 (La.1977); State v. Harris, 44,402 (La.App.2d Cir.6/24/09), 20 So.3d 1121.

In the instant case, the record reveals that the defendant entered a plea of guilty to two counts of molestation of a juvenile on November 15, 2007, and was sentenced to serve two concurrent five year sentences at hard labor. He was subsequently discharged from state supervision for that ..offense and committed the instant crime of conviction, simple burglary, on September 23, 2011. Less than four years elapsed between the prior conviction, and subsequent release from custody, and the current conviction. Additionally, the record reveals the 2007 conviction of molestation of a juvenile was within ten years of the date of discharge from state supervision for the prior offense, simple burglary of an inhabited dwelling, of which the defendant was convicted on May 12, 1994. Similarly, the 1994 conviction was within ten years of the date of discharge from state supervision for the first offense, which occurred at some time after the guilty plea on August 8,1990.

It is clear from this record that there was not a single period of more than ten years that existed between the expiration of the defendant’s prior sentences and the subsequent offense, which could prevent one of the predicate felonies from being used to enhance the sentence. During the |^hearing the trial court stated:

[T]he conclusion of your sentence doesn’t simply conclude upon your release from jail. If you had additional parole time or anything, all of that time is calculated and that — that period of ten years — there was no one period of ten years where you went without some, being on some type of sentencing either be it probation or parole or incarceration.

We agree. Our review of this defendant’s criminal record reveals that he has never had a period of ten years during which he was not either incarcerated or on probation or parole. This assignment lacks merit.

Next, the defendant urges the following complaints with regard to his prior convictions: (1) he was denied the information and documents that were necessary to challenge his prior convictions (according to the defendant, his court-appointed attorney committed perjury when she testified that she had provided all materials to him on October 1, 2013); (2) the state failed to prove a waiver of rights, the presence of counsel, or proper Boykinization in the prior convictions; and (3) the state’s exhibits were not produced with the record he received; therefore, he was unable to review the evidence in preparation for this appeal.

Our review of the record reveals that the defendant’s assertions are without merit. The record shows that the defendant was made aware of the predicate offenses to be used on numerous occasions. The habitual offender bill of information was read, in the defendant’s presence, in open court on July 2, 2013; the defendant asserted that he understood the charges against him. Thereafter, on July 26, 2013, the state provided the defendant with a list of all evidence to be introduced at the hearing. In response, the | ^defendant’s court-appointed counsel filed a motion to quash the habitual offender bill; the defendant was provided with a copy of counsel’s motion to quash on August 6, 2013. Additionally, as stated above, although the defendant admitted to the prior convictions, the state also produced evidence to prove the prior convictions. The defendant did not object to the state’s exhibits. A complete review of the evidence presented at the hearing reveals that transcripts were admitted into evidence reflecting representation of counsel and waiver of all rights at each of the prior guilty pleas. Further, the defendant was advised that each of the prior convictions could be used in the future to enhance the sentence for a subsequent felony.

With regard to the defendant’s argument that he was unable to review the state’s evidence in preparation for this appeal, it is the general policy of this Court to provide incarcerated defendants with a copy of the record for review; however, exhibits are withheld. Nevertheless, even if the defendant had been provided with the exhibits on appeal, a review of those exhibits does not reveal any meritorious claims. Additionally, the transcripts do not reveal any constitutional issues with any of the prior convictions which could have been presented at the habitual offender hearing. The record shows a waiver of rights, the presence of counsel, and proper Boykini-zation in each of the prior guilty pleas used as convictions in this matter. The trial court properly adjudicated the defendant as a fourth-felony offender. These assignments are without merit.

In other pro se assignments of error, the defendant objects to the proceedings as a whole. Specifically, he contends he was not provided with 118any discovery responses until after the deadline for filing his written objections; he was unable to properly prepare for the hearing because he did not know which prior convictions would be used against him; he was denied his right to call favorable witnesses because the trial court refused to issue subpoenas on his behalf; he was not allowed to procure the testimony of psychiatrists to prove his mental state; he was not provided with a copy of the transcript of the October 1, 2013 hearing; and he never received any materials from his previous counsel.

Discovery is governed by LSA-C.Cr.P. art. 716 et seq. Nondisclosure does not warrant automatic reversal of a conviction; however, where the defendant is lulled into misapprehension of the strength of the state’s case as a result of nondisclosure, the defendant is entitled to reversal. State v. Wilson, 27,889 (La.App.2d Cir.4/8/96), 672 So.2d 448, citing State v. Strickland, 398 So.2d 1062 (La.1981).. The defendant must show prejudice in order for his conviction to be reversed. State v. Stewart, 45,333 (La.App.2d Cir.8/11/10), 46 So.3d 714.

In this case, the defendant has not presented any evidence or argument that he was unaware of the strength of the state’s case against him. At arraignment, the defendant was advised of all prior convictions which the state intended to present as predicate offenses at the habitual offender hearing. On July 26, 2013, the state produced a listing of all evidence to be introduced at the multiple offender hearing. The defendant’s prior court-appointed counsel testified that she had provided to the defendant all materials in the possession of the public defender’s office. The trial court 119found that defense counsel was credible and chose to believe her accounting. The defendant has not presented any evidence to support his allegations of perjury on the part of his prior attorney, and the record does not reveal any indication that the defendant did not receive all discovery materials produced by the state.

Moreover, the defendant has not offered any evidence to support his allegations that he could have successfully challenged any of the prior convictions at the habitual offender hearing, even if the documents were produced. As stated above, a review of the evidence admitted at the habitual offender hearing does not reveal any constitutional claims related to any of the prior convictions. Although the defendant did request to call witnesses, such as psychiatrists, the trial court determined that the information sought would be irrelevant in the habitual offender proceeding. There is no evidence that the court abused its discretion by refusing to subpoena witnesses. These assignments are without merit.

Additionally, the defendant has urged’ two assignments of error regarding claims of prosecutorial misconduct. However, his entire pro se brief contains allegations against the state and the district attorney. According to the defendant, the habitual offender proceedings against him were brought because of the district attorney’s “malice and ill will.” He further alleges that the district attorney intentionally used false information in the bill of information, and was aware that the charges contained in the bill did not conform with the requirements of LSA-R.S. 15:529.1.

This defendant has not presented any evidence to support his claim of | gnprosecutorial misconduct. In fact, each of the prior convictions enumerated in the habitual offender bill of information is a felony under the laws of this state and the ten year cleansing period was not met between any of the prior convictions. The evidence shows that the information contained in the bill of information was correct, the expert witness testified that the felonies were committed by the same person, and the defendant admitted in open court that he was the same person who committed the offenses. Therefore, the defendant’s arguments that the district attorney acted with ill will and malice, and that he intentionally included false information in the bill of information is not supported by the record. Therefore, the argument lacks merit.

The defendant also argues that the trial court improperly denied his motion for change of venue. He argues that a conflict of interest exists in the 26th Judicial District Court, due to a federal lawsuit he had filed against Judge Craig, Pamela Smart, Cynthia Johnston, Mark William Rodgers, Schuyler Marvin, Randy Smith, and Judge Jeff Cox. As examples of the prejudice he has suffered, the defendant alleges that Judge Craig stated that he was guilty prior to hearing the evidence, that a correct copy of the transcript dated October 1, 2013 was never provided, that Sarah Giddens (his prior court-appointed attorney) committed perjury, and that transcripts were withheld from him. According to the defendant, Judge Craig should have recused himself due to the prior lawsuit filed against him. The defendant also maintains that he was denied his right to a fair hearing and his constitutional right to due process.

| ¾1 LSA-C.Cr.P. art. 622 provides that a “change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.” LSA-C.Cr.P. art. 671 provides the grounds upon which a trial judge in a criminal case must be recused, one of which is if the judge is “biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial.” A party must file a written motion to recuse prior to commencement of the trial. “If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge.” LSA-C.Cr.P. art. 674.

The defendant’s motion for change of venue was based upon an argument of prejudice arising from his federal civil suit against the presiding judge and court staff. The argument is more properly a motion for recusal. As noted by the trial court, a motion for change of venue is a pre-trial motion, and is not appropriate following a conviction.

The defendant’s arguments consist mainly of unsupported, conclusory allegations of bias on the part of the trial judge. The record shows that the defendant did not object when the trial judge presided over sentencing on August 14, 2012, nor did he complain about the judge’s failure to self-recuse on his first appeal in this court. Moreover, the civil lawsuit was ^dismissed as frivolous and without merit on October 22, 2012, approximately one year before the habitual offender hearing. The defendant has not presented any evidence of judicial misconduct on the part of the trial judge, nor has he shown any valid grounds upon which the judge was required to self-recuse or refer the motion to recuse. Again, the record reflects that the defendant received a fundamentally fair and impartial hearing. These assignments lack merit.

The defendant further contends the assistance of both trial counsel, Sarah Guldens, and appellate counsel, Douglas Lee Harville, was ineffective. He argues that his trial counsel was ineffective because she was not present at his arraignment, did not deliver the necessary documents to him, did not contest the entire bill of information, and she committed perjury. The defendant maintains that his trial counsel “did not care about truth, honesty, or justice” and she “was obviously working for the District] Attorney’s office, not me!” The defendant argues that appellate counsel was ineffective in the following regards: (1) appellate counsel refused to assist him in requesting documents from the district court; (2) appellate counsel did not ensure all transcripts were included in the record; (3) appellate counsel believed that the defendant was eligible for an enhanced sentence; and (4) appellate counsel briefed and argued only one issue on appeal. According to the defendant, due to the ineffective assistance of both trial and appellate counsels, he was forced to represent himself; therefore, he was denied his right to counsel.

As a general rule, a claim of ineffective assistance of counsel is more Improperly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under LSA-C.Cr.P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 2007-2190 (La.4/4/08), 978 So.2d 325. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.9/27/95), 661 So.2d 673.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A previewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La.App.2d Cir.4/4/07), 954 So.2d 823, unit denied, 2007-1193 (La.12/7/07), 969 So.2d 629; State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991).

Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, ie., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show that the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that, but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.4/5/95), 653 So.2d 174, unit denied, 95-1398 (La.11/3/95), 662 So.2d 9. The failure of counsel to make meritless objections or file futile motions is not ineffective assistance. Johnson v. Cockrell, 306 F.3d 249, 255 (5th Cir.2002).

Our review of this record reveals that the defendant’s court-appointed attorney was not present at his arraignment. However, another attorney from the public defender’s office “stood in” for counsel and entered a plea of “not guilty” on behalf of the defendant. Therefore, the defendant was clearly represented by counsel at his arraignment and was not prejudiced by his appointed-counsel’s absence. Also, the trial court made a factual finding pthat trial counsel had delivered to the defendant all documents; the defendant has not shown that the court’s factual determination was in error. Further, trial counsel filed an appropriate motion to quash three of the predicate offenses identified in the habitual offender bill. The mere fact that trial counsel strategically opted not to file a motion to quash the entire bill does not constitute ineffective assistance. As previously discussed, the habitual offender bill of information was not defective and the defendant was unsuccessful in his own attempt to quash the bill of information.

With regard to the defendant’s claims concerning appellate counsel, we find that it was not the duty of an appellate counsel to assist the defendant with motions before the trial court. Additionally, appellate counsel filed an appellate brief, on behalf of the defendant, which asserted the one assignment of error which, counsel believed, had merit. Counsel’s failure to assert multiple meritless assignments of error did not constitute ineffective assistance of counsel. Further, the defendant has not shown any evidence that he was prejudiced as a result of these alleged deficiencies. The defendant filed a pro se brief, in which he asserted 21 additional assignments of error, which have been reviewed by this court. • For the foregoing reasons, these assignments are without merit.

ERRORS PATENT

Pursuant to LSA-C.Cr.P. art. 920, we have examined this record for errors patent. We find that the trial court failed to vacate the prior sentence, in accordance with LSA-R.S. 15:529.1(D)(8), and failed to advise the defendant of the delays for filing for post-conviction relief, pursuant to JggLSA-C.Cr.P. art. 930.8.

When the court adjudicates a defendant as a habitual felony offender, “the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated.” LSA-R.S. 15:529.1(D)(3). Where it is obvious that the trial court intended to increase the substantive sentence, and correction of the illegal sentence does not involve the exercise of sentencing discretion, the appellate court may amend to correct, without remanding for resentenc-ing. State v. George, 39,959 (La.App.2d Cir.10/26/05), 914 So.2d 588.

In this case, it is clear that the trial court intended to increase the substantive sentence from ten years’ imprisonment to life imprisonment, in accordance with the habitual offender statute. Therefore, we hereby vacate the original 10-year sentence imposed in Docket No. 189924, 26th Judicial District Court, Parish of Bossier, to conform to the requirements set forth in LSA-15:529.1(D)(3), and we amend the defendant’s sentence to reflect the vacation of the defendant’s original 10-year sentence.

Additionally, at the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post-conviction relief either verbally or in writing. LSA-C. ,Cr. P. art. 930.8(C). The record reflects that, at the October 29, 2013 habitual offender hearing, the district court failed to properly advise defendant of the prescriptive period within which he must apply for post-conviction relief. Accordingly, we hereby advise the defendant, pursuant to LSA-C.Cr. P. art. 930.8, that no application for 127post-conviction 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 LSA-C.Cr.P. arts. 914 or 922. See State v. Ramsey, 2010-333 (La.App. 5th Cir.1/25/11), 60 So.3d 36.

CONCLUSION

The defendant’s adjudication as a fourth-felony offender and sentence are affirmed. We hereby vacate the 10-year sentence imposed in the underlying conviction, and we remand this matter to the trial court with instructions to amend the minutes of sentencing to correctly reflect that the defendant’s original 10-year sentence is hereby vacated.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . The defendant argued that the state had not shown that he was the same person who had pled guilty to the following offenses: attempted unauthorized entry of a business on August 8, 1990; simple burglary of a inhabited dwelling on May 12, 1994; and, simple escape on August 10, 1995.

      . LSA-R.S. 14:62(B) provides:
      Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.
      LSA-R.S. 14:62.2(B) provides:
      Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years.

      . In 1986, the defendant pled guilty to simple burglary; his probation was revoked one year later. In 1987, he pled guilty to felony property damage. In 1989, the defendant pled guilty to attempted burglary of a business in Bossier, and in 1993, he pled guilty to simple burglary of an inhabited dwelling in Red River Parish (both of these convictions were used as predicate felonies in this habitual offender proceeding). Further, the defendant was convicted of DWI in 2002, and in 2004, he pled guilty to two counts of molestation of a juvenile (also used as a predicate felony in this habitual offender proceeding). At the time of sentencing on the underlying offense, the defendant had a pending charge for failure to register as a sex offender.

      . The defendant also argues that the bill of information was. defective because it included his conviction of two counts of molestation of a juvenile. According to the defendant, that conviction should have been counted as a single conviction. The defendant correctly noted that the habitual offender bill of information contained a single conviction on two counts of molestation of a juvenile. However, the trial court used that conviction as only one predicate felony conviction. The court expressly noted that the "molestations ... are counted as a single offense[J”

      . The defendant was convicted of simple burglary on May 22, 2012. Approximately one month later, on June 25, 2012, he filed a civil action in the U.S. District Court, Western District of Louisiana, naming Judge Craig and various employees of the 26th Judicial District Court as defendants.