author: ROSEMARY LEDET, Judge.

text:
    Sue SPILSBURY and Lynn DiVincent v. CITY OF NEW ORLEANS, its Department of Safety and Permits, and Board of Zoning Adjustments.
    No. 2013-CA-1258.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2014.
    Sue Spilsbury, Edward R. Washington, III, The Washington Law Group, LLC, Deborah M. Henson, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.

      Christy C. Harowski, Deputy City Attorney, Sharonda R. Williams, City Attorney, City of New Orleans, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

| ,This is a zoning dispute. Sue Spils-bury and Lynn DiVincent (the “Plaintiffs”) appeal the trial court’s judgment denying the Plaintiffs’ rule to show cause why the decision of the Board of Zoning Adjustments (“BZA”) should not be overruled and reversed. For the reasons that follow, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The Plaintiffs co-own a two-family dwelling on 6027/6029 Memphis Street in the Lakeview area of Orleans Parish (the “Duplex”). In 1998, the Plaintiffs inherited the Duplex from their mother. At all pertinent times, they have used the structure as a double. The Duplex is located in the zoning district LRS 1 — Lakeview Single-Family Residential District (“LRS-1”). As a result of the impact of Hurricane Katrina, which made landfall on August 29, 2005, the Duplex flooded.

In 2007, LRS-1 was converted by city ordinance from a two-family dwelling zoning district with a moratorium on new doubles (and duplexes) to a single-family zoning district with a waiver for existing doubles. Cupit v. City of New Orleans ex rel. Bd. of Zoning Adjustments, 12-1708, p. 2 (La.App. 4 Cir. 7/17/13), 120 So.3d 862, 863; See CZO 9A.1.3. After LRS-1 was re-zoned, the Duplex’s use as a two-family dwelling became a non-conforming use.

In August 2006, the Plaintiffs obtained an “emergency” permit to repair their Duplex. Sometime thereafter, the Plaintiffs applied for a Road Home Disaster forgivable grant through the Small Rental Property Program (“SRPP”). The Plaintiffs were approved for a grant called the “incentive option,” under which they were to contract and finance all repairs, and after inspection and approval, they could petition the State for reimbursement. However, in September 2009, the Plaintiffs applied for a grant called the “initiative option,” in which a contractor would be assigned by the State to undertake all repairs. If the Plaintiffs met a rental ceiling guideline for ten years, the grant would be forgiven. In December 2009, the Plaintiffs were approved for the initiative grant.

During early summer of 2010, the Road Home Program notified the Plaintiffs that their contractor assignment could be imminent. Thus, on July 1, 2010, the Plaintiffs applied for and received a new building permit for “renovation.” However, the Road Home Program did not make a final contractor | ¡¡assignment for the Plaintiffs until over a year later, in November 2011. Further, the Road Home Program did not schedule the Plaintiffs’ loan closing until November 13, 2012, a year from the contractor assignment.

On the morning of the closing, the Plaintiffs and their SRPP contractor went to the Department of Safety and Permits (“DSP”) to obtain a building permit to repair their Duplex. However, they were denied a new permit. The DSP told the Plaintiffs that the Director of the DSP interpreted LRS-1 to halt the restoration of existing doubles in the Lakeview area effective August 16, 2011.

On August 16, 2011, in an inter-office memorandum the former Director of the DSP, Paul May, stated: “Following a review of Art. 9A, Section 9A.1.3.2A of the comprehensive zoning ordinance, the Department of Safety and Permits has determined that the language of the ordinance relative to the renovation of two-family dwellings in the LRS-1 District is unclear.” Thus, Mr. May stated that effective immediately, no permits would be issued for the renovation of an existing two-family dwelling in the LRS-1 District where the intended occupancy is anything other than a single-family dwelling. However, Mr. May stated that permits may be issued for the renovation, expansion, or alteration of occupied two-family dwellings.

After being denied a new permit, the Plaintiffs called the DSP and requested an extension of their 2010 permit, pursuant to ongoing work they performed on the Duplex. On November 20, 2012, the senior building inspector for the DSP, Jerry McRaney, inspected the Duplex. Mr. McRaney determined that no ongoing repairs or renovations were taking place. Mr. McRaney further determined that the Duplex was uninhabitable. Thus, the DSP denied the Plaintiffs’ application for an extension of their 2010 permit.

I/The DSP instructed the Plaintiffs that they had the following two options: (1) make their house a single, and get a permit to repair a single-family dwelling; or (2) appeal the denial to the BZA. Thereafter, the following procedural events occurred:

• On November 30, 2012, the Plaintiffs filed an appeal to the BZA.
• On January 14, 2013, during a hearing before the BZA, the BZA upheld the city’s denial of the Plaintiffs’ permit application to repair their Duplex.
• On February 14, 2013, the Plaintiffs timely filed their petition for a TRO, preliminary and thereafter permanent injunction, for writ of certiorari and judicial review, and for writ of mandamus and appeal in Civil District Court for the Parish of Orleans.
• On May 31, 2013, the Plaintiffs filed a rule to show cause why the decision of the BZA should not be overruled and reversed, and that the DSP be ordered to issue the Plaintiffs a permit to repair their Duplex.
• On June 13, 2013, the City filed its opposition to the Plaintiffs’ rule to show cause.
• On June 21, 2013, the rule was heard and on July 12, 2013, the trial court entered its judgment affirming the BZA’s decision to deny the Plaintiffs a permit to repair their Duplex.

This appeal followed.

DISCUSSION

| ¡¡This court recently summarized the standard for reviewing decisions of the BZA in Ellsworth v. City of New Orleans, 13-0084, p. 6-7 (La.App. 4 Cir. 7/31/13), 120 So.3d 897, 902:

The jurisprudence has recognized that “the decisions of the BZA, while subject to judicial review under La. R.S. 33:4727(e), are subject to a presumption of validity and are subject to judicial review only as to whether they are arbitrary, capricious or an abuse of discretion.” French Quarter Citizens For Preservation of Residential Quality, Inc. v. New Orleans City Planning Comm’n, 99-2154, p. 3 (La.App. 4 Cir. 4/12/00), 763 So.2d 17, 18-19 (citing Curran v. Board of Zoning Adjustments, 90-1441 (La.App. 4 Cir. 04/16/91), 580 So.2d 417, 418; Lake Forest Inc. v. Board of Zoning Adjustments of City of New Orleans, 487 So.2d 133, 135 (La.App. 4th Cir.1986); Cross v. City of New Orleans, 446 So.2d 1253, 1255 (La.App. 4 Cir.1984)). The jurisprudence has further recognized that “[t]he reviewing court may not simply substitute its own judgment for that of the BZA.” Id. The jurisprudence has still further recognized that it “ ‘is not within the province of the appellate court to second guess a zoning decision that appears to have been based on appropriate and well-founded concerns for the public.’ ” Toups v. City of Shreveport, 10-1559, pp. 5-6 (La.3/15/11), 60 So.3d 1215, 1218 (quoting TSC, Inc. v. Bossier Parish Police Jury, 38,717 (La.App. 2 Cir. 7/14/04), 878 So.2d 880).

On appeal, the Plaintiffs contend that the trial court committed legal error by denying their rule to show cause why the BZA’s decision should not be overruled and reversed. In support, the Plaintiffs present two main arguments. First, they contend that they should have been granted a new (called “supplemental” by the DSP) permit to renovate their Duplex pursuant to the language of LRS-1. Second, they contend that they should have been granted an extension of their 2010 building permit for renovation pursuant to the work they performed on the Duplex. We address each of Plaintiffs’ arguments separately.

(i) New, “Supplemental” Permit

As noted above, the Plaintiffs contend that they should have been granted a new permit pursuant to LRS-1, which provides as follows:

| fiSection 9A.1. LRS-1 Lakeview Single-Family Residential District
9A.1.1. Purpose of the District
The purpose of the district is to provide for and encourage low density, single-family residential development of a relatively spacious character, together with churches, recreational facilities, and accessory uses as may be necessary or normal for residential surroundings, in such a manner as to preserve the distinctive character of the Lakeview area. The district also is intended to provide for the maintenance of existing residential densities, as well as opportunities for compatible residential growth, by allowing for existing two-family dwellings and the re-establishment of those two-family dwellings that have lost their legal nonconforming status as the immediate previous legal use of the structures.
9A.1.3. Permitted Uses
The following uses of land are authorized as permitted uses in the LRS-1 Lakeview Single-Family Residential District. Timeshare buildings and transient vacation rentals are prohibited:
2A. Two-Family Residential Dwellings as described below:
a. Two-family dwellings, where the two-family residential use is the immediate previous use of the structure, shall be permitted to be re-established, structurally altered, and additional floor area may be added to the structure, provided that no additional dwelling units shall be permitted.
b. Two-family residential structures described above may be demolished and rebuilt, provided that they obtain a building permit for construction within one (1) year of issuance of a demolition permit and complete construction and obtain a Certificate of Occupancy from the Department of Safety and Permits within (1) year of the issuance of the building permits.
c. With regard to the standard time limitations in subsection (b) above regarding demolition and building permits, properties that were established as legal two-family dwellings as of August 29, 2005 (the date of Hurricane Katrina) shall retain two-family dwelling status for three years following demolition or until August 29, 2010, whichever is earlier. These Katrina damaged two-family dwellings that have not obtained a building permit by August 29, 2010 will lose two-family status and revert to the underlying single-family status.

|7The Plaintiffs contend that LRS-1 does not set forth any time limitation for owners applying for permits to renovate their two-family dwellings in Lakeview. They point out that subsection (c) of 9A.1.3.2A, which imposes a five-year-deadline on owners of two-family dwellings applying for permits, refers to subsection (b) regarding demolition only. Thus, the Plaintiffs contend that because the Duplex was never demolished, subsection (b) and (c) do not apply. Rather, they contend that subsection (a) is the only applicable provision. Subsection (a) unequivocally provides, under permitted uses, that “[t]wo-family dwellings, where the two-family residential use is the immediate previous use of the structure, shall be permitted to be reestablished.” Thus, the Plaintiffs contend that when they applied to the DSP in 2012 they should have been granted a new permit to renovate their Duplex.

The City counters that, as interpreted by Mr. May, the five-year period in CZO 9A.1.3.2A(e) applies to both owners of two-family dwellings applying for permits regarding demolition and owners of two-family dwellings applying for permits regarding renovation or repairs. Thus, the City contends that the Plaintiffs were correctly denied a permit in 2012, as it was two years after the five-year grace period expired; hence, their two-family dwelling no longer enjoyed legal nonconforming use status. We disagree.

As noted, in his inter-office memorandum, Mr. May acknowledged that LRS-1 was unclear. Mr. May, thus, interpreted the meaning of the ordinance. See Esplanade Ridge Civic Ass’n v. City of New Orleans, 13-1062 (La.App. 4 Cir. 2/12/14), 136 So.3d 166, 2014 WL 700546. However, under Article IV, Section 4-702 of the New Orleans Home Rule Charter, Mr. May’s duties as the DSP’s | ^Director are only to “[ajdminister and enforce” the zoning ordinances. The DSP’s Director is not entitled to create law; that is the legislative body’s function. Further, the DSP’s Director is not entitled to interpret the law; that is the judiciary’s function. This court, not the DSP’s Director (Mr. May), is charged with the responsibility of interpreting the meaning of an ordinance. See Williams v. Parish of St. Bernard, 10-0397, p. 3 (La.App. 4 Cir. 10/13/10), 49 So.3d 520, 523. The proper interpretation of a statute or an ordinance is a question of law, and is, thus, reviewed by this court under a de novo standard of review. Id., 10-0397 at p. 3, 49 So.3d at 523.

This court has held that [t]he statutory and jurisprudential rules for statutory construction and interpretation apply equally well to ordinances, rules and | regulations. State v. Bell, 05-0808, p. 6 (La.App. 4 Cir. 12/6/06), 947 So.2d 774, 778. Regarding interpreting the meaning of an ordinance, this court has stated:

Legislation is the solemn expression of legislative will, and therefore, the interpretation of a law involves primarily the search for the legislature’s intent. The interpretation of a statute starts with the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature.

Williams, 10-0397 at p. 7, 49 So.3d at 525-26. Regarding the interpretation of an ordinance that is unclear, the jurisprudence has provided:

When the expressions of a law are “dubious”, the most effectual way of discovering the true meaning of the law is to consider the reason and spirit of it, or the cause which induced the lawmaker to enact it. La.C.C. art. 18; Nash v. Whitten, 326 So.2d 856 (La.1976); Groves v. Board of Trustees of Teachers’ Retirement System of Louisiana, 324 So.2d 587 (La.App. 1st Cir.1975), writs denied, 326 So.2d 378, 380 (La.1976). When a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is to be preferred over one which renders part thereof ridiculous or nugatory. Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980); Freechou v. Thomas W. Hooley, Inc., 383 So.2d 337 (La.1980).

Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360-61 (La.App. 1st Cir.1984).

Discussing the interpretation of zoning ordinances in particular, this court has noted the following:

A legal nonconforming use is “designed to protect those uses which were established before the enactment of a restrictive zoning regulation.” Weisler v. Board of Zoning Adjustments, 98-3007 (La.App. 4 Cir. 11/17/99), 745 So.2d 1259, 1261; Humphrey v. Robertson, 97-1742, p. 8 (La.App. 4 Cir. 3/11/98), 709 So.2d 333, 337. Since a nonconforming use is inconsistent with the purpose of zoning ordinances, decisions regarding such status should be viewed narrowly with all doubt resolved against continuation or expansion of the nonconforming use. Weisler, supra, 745 So.2d at 1261. However, this principle should [not] be confused with the principle that a zoning ordinance, being in derogation of the rights of private ownership, must be construed, when subject to more than one reasonable interpretation,^J^according to the interpretation which allows the least restricted use of the property. Id.

Cordes v. Board of Zoning Adjustments, 09-0976, p. 10 (La.App. 4 Cir. 1/20/10), 31 So.3d 504, 510-11.

Given the plain language of LRS-1, we find merit to the Plaintiffs’ argument that the five-year time period in which to apply for a permit applies only to owners of two-family dwellings who desire to demolish and rebuild the dwelling from Hurricane Katrina damage. Indeed, at oral argument before this court, the City argued that the City Council likely enacted this statute when they were under the impression that every home in Lakeview would have to be demolished.

Because the meaning of LRS-1 is unclear, we must look to the legislative intent. In the purpose section of the ordinance, the importance of maintaining the neighborhood’s two-family dwellings post storm and post re-zoning is emphasized. As noted at the outset, the ordinance provides:

9A.1.1. Purpose of the District
... The district also is intended to provide for the maintenance of existing residential densities, as well as opportunities for compatible residential growth, by allowing for existing two-family dwellings and the re-establishment of those two-family dwellings that have lost their legal nonconforming status as the immediate previous legal use of the structures.

The City Council’s purpose in enacting this ordinance was to protect existing two-family dwellings. With this intent in mind, and because owners of two-family dwellings were not put on notice of a clear deadline to apply for renovation permits, we find that the Plaintiffs should have been granted a new permit in 2012.

(ii) Extension of the Plaintiffs’ 2010 Permit

The Plaintiffs also argue that, at a minimum, they are entitled to an extension of the permit that they were issued in 2010. We agree.

lnPermits issued by the DSP normally expire within six months. However, permits issued to complete repairs resulting from an “act of God,” such as Hurricane Katrina, have a lifespan of one year. The New Orleans city zoning ordinances provide for permits to be extended beyond their normal time period for good cause.

The Plaintiffs contend that they completed work pursuant to their permit, such as painting and structural work. The Plaintiffs further contend that the administrative process of the Road Home Program delayed their renovation of the Duplex. The Plaintiffs still further contend that they were not allowed to begin work until a contractor was assigned and a closing took place, which did not happen until 2012.

The City counters that the Plaintiffs did not provide any compelling circumstances that would force the DSP to make an exception to the general rule and grant them an extension to their permit. The City contends that their inspector went to the Duplex and found that no work had been performed pursuant to the | ^permit. The City further contends that the Plaintiffs were required to apply for an extension of their permit before their other permit expired, but they failed to do so.

The BZA’s decision to deny the Plaintiffs either a new permit or an extension of their prior permit was arbitrary and capricious. As noted above, Hurricane Katrina was a unique situation that resulted in extreme delays. The Plaintiffs applied for a permit in 2010 and continued to take the necessary steps to complete their application with the Road Home Program. The Plaintiffs established that they made efforts towards repairing the Duplex and getting it back on the market. Given these circumstances, we find that the Plaintiffs are an exception to the general rule and should have been granted a permit to renovate their Duplex.

Accordingly, we find that the trial court erred in affirming the BZA’s decision and denying the Plaintiffs’ rule to show cause why the BZA’s decision should not be overruled and reversed.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. The BZA is hereby ordered to issue a permit to the Plaintiffs to allow for the renovation of their Duplex.

REVERSED.

      . The Louisiana Supreme Court has described a non-conforming use of property as "[a] use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance although it does not comply with the use restrictions applicable to the area in which it is situated.” Redfearn v. Creppel, 455 So.2d 1356, 1358 (La.1984); see also Joubert v. City of New Orleans, Office of Safety & Permits, 09-0601, p. 3 (La.App. 4 Cir. 1/13/10), 30 So.3d 186, 188-89.

      . CZO Article 13 Nonconforming Uses, Section 13.3. Destruction of a Nonconforming Use, 13.3.2. Procedures provides:
      Application for a restoration permit shall be made within one year of the destruction in whole or in part by fire, storms or other acts of God or the public enemy. Restoration shall be completed within one year from the date of the issuance of the restoration permit unless extensions are approved by the Board of Zoning Adjustments.

      . The permit stated that the work to be performed included: "Electrical, Hvac, Plumbing, Sheetrocking, Painting and others to make habitable.”

      . During the hearing, the BZA heard evidence and testimony from the Plaintiffs, several of Plaintiffs’ neighbors (both in support and in opposition to the Plaintiffs), and the DSP personnel. The record from the hearing also includes several photographs of the Duplex depicting the work that the Plaintiffs performed on the Duplex since Hurricane Katrina.

      . Although the video transcript from the BZA hearing was lost, all physical evidence presented at the hearing, including the photographs and the Plaintiffs’ letter, are included in the record on appeal.

      . The Plaintiffs filed their petition timely, pursuant to CZO 14.11, within thirty days after the filing of the BZA’s decision in the office of the Board on January 17, 2013.

      . The Louisiana Supreme Court recently delineated the powers of the Legislature in Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732, p. 14 (La.1/19/05), 903 So.2d 392, 403, stating:
      In Louisiana, legislation is the superior source of law which custom cannot abrogate. La. Civ.Code Ann. art. 1, comments (a) and (c). As authorized in La. Const. Ann. art. Ill, § 1, the legislative power of the state is vested in the Legislature. In the exercise of legislative power, the Legislature may enact any legislation that the state constitution does not prohibit. Board of Com'rs of Orleans Levee Dist. v. Dept. of Natural Resources, 496 So.2d 281, 286 (La.1986).

      . The Louisiana Supreme Court also delineated the powers of the judiciary in Unwired Telecom Corp., 03-0732 at p. 16-18, 903 So.2d at 404-05, stating:
      La. Const. Ann. art. V, § 1 vests the judicial power in a supreme court, courts of appeal, district courts, and other courts authorized by Article V. The function of statutory interpretation and the construction given to legislative acts rests with the judicial branch of government.... Under our system of government, "[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). The interpretation of the law belongs to the judiciary, not the Legislature.

      .The City contends that in order to administer and enforce ordinances, the DSP’s Director can interpret the ordinances according to their intent. In support, the City cites New Orleans v. Rasmussen, 542 So.2d 13, 16 (La.App. 4th Cir.1989) (owner's video arcade was not a specified permitted use under the zoning ordinance). In Rasmussen, however, the DSP’s Director did not make up new law or interpret the law; rather, the Director applied the facts to the ordinance and enforced the ordinance.

      . CZO 17.2.7.(1) Expiration provides:
      Except for prior permits provided for in Section 17.2.5, a building permit issued pursuant to this section shall expire within six (6) months after its issuance if construction has not commenced and if no request for extension has been filed prior to such date.

      . CZO 13.3.2. Procedures provides:
      Application for a restoration permit shall be made within one year of the destruction in whole or in part by fire, storms or other acts of God or the public enemy. Restoration shall be completed within one year from the date of the issuance of the restoration permit unless extensions are approved by the Board of Zoning Adjustments.

      .This rule is set forth in CZO 17.2.7(2), which provides: "[t]he Director of Safety and Permits, upon written application filed prior to expiration of the building permit, may authorize for good cause an extension not to exceed six (6) months of such permit.”


source: Caselaw Access Project

author: JAMES F. McKAY III, Chief Judge. TOBIAS, J.,

license: Public Domain

text:
    John KRECEK v. Karen DICK, et al.
    No. 2013-CA-0804.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2014.

      Michael D. Conroy, Amanda D. Hogue, Conroy Law Firm, Covington, Louisiana, for Plaintiff/Appellee.
    Robert D. Schromm, Mark Andrew Moeller, Schromm Law Firm, LLC, Me-tairie, Louisiana, for Defendant/Appellant, Karen Dick.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, Jr., Judge MADELEINE M. LANDRIEU).
   JAMES F. McKAY III, Chief Judge.

LThis appeal arises out of an eviction proceeding from the First City Court for the City of New Orleans. Karen Ann Krecek Dick (“Mrs. Dick”) appeals the April 25, 2013 judgment denying her exceptions of lis pendens and lack of subject matter jurisdiction and granting a rule for possession of premises in favor of plaintiff, John Krecek (“Mr. Krecek”). We affirm.

Pursuant to a judgment of possession rendered September 15, 2006, in the succession of Violet DeMunnick Krecek, Mr. Krecek, the surviving spouse, was awarded an undivided one-half ownership interest in the community property and a lifetime usufruct over the separate and community property belonging to the estate of the decedent. Mr. Krecek was further granted the right to sell, mortgage, lease or otherwise dispose of all assets subject to the usufruct. His children, Mrs. Dick, David J. Krecek and Carol Ann Krecek O’Donahue, were recognized as naked owners subject to Mr. Krecek’s lifetime usufruct. Included in the decedent’s estate is a duplex located at 6348-50 Colbert Street in New Orleans. Mrs. Dick, along |2with her husband, Robert Dick, III, and her son, Shane Dick, resided at 6348 Colbert Street, while Mr. Krecek occupied the other half of the duplex.

On April 16, 2013, Mr. Krecek filed a rule for possession seeking to evict Mrs. Dick and her family due to non-payment of rent. The matter proceeded to trial on April 25, 2013. On the day of trial, Mrs. Dick filed declinatory exceptions of lis pendens and lack of subject matter jurisdiction.

The exception of lis pend&ns was asserted based on a petition for injunctive relief previously filed by Mr. Krecek in the Civil District Court for the Parish of Orleans on March 12, 2013. See John Krecek v. Karen K. Dick, Shane Dick and Robert Dick, III, Case No. 13-2436, Division “N-8”. In that action, Mr. Krecek sought to enjoin Mrs. Dick and the co-defendants from abusing, threatening and harassing him and from coming within one hundred feet of his home.

Regarding the exception of lack of subject matter jurisdiction, Mrs. Dick submits that her responsive pleading filed in the First City Court, captioned “Declinatory Exceptions of Lis Pendens and Lack of Subject Matter Jurisdiction”, constitutes a compulsory reconventional demand, which exceeds the jurisdictional amount set forth in La. C.C.P. art. 4843(E). More specifically, Mrs. Dick avers that said “reconven-tional demand” seeks the termination of Mr. Krecek’s usufruct due to his neglect in failing to make over $30,000.00 in repairs to the property.

|sAt trial on the eviction, Mr. Krecek introduced the judgment of possession from his late wife’s succession and a letter dated January 11, 2013, wherein he instructed Mrs. Dick to begin paying $300.00 per month in rent beginning February 15, 2013. No rent was paid as of the date of trial. Following oral argument, the introduction of evidence, and statements made by Mrs. Dick and her husband (that they were unable to pay the rent), the trial court denied the exceptions and granted Mr. Krecek’s rule for possession. Mrs. Dick’s timely appeal followed.

On appeal, Mrs. Dick asserts that the trial court erred in denying the exception of lis pendens in light of Mr. Krecek’s previously filed petition for preliminary injunction, which concerns the same transaction or occurrence, and is between the same parties in the same capacities. She also asserts that the trial court erred in denying the exception of lack of subject matter jurisdiction based on the reconven-tional demand for damages in excess of the First City Court’s jurisdictional amount. Mrs. Dick submits that as a result of its failure to deny the exceptions, the trial court erred in granting the eviction. For the reasons that follow, we find no merit in these assignments of error.

Lis Pendens

The district court’s ruling on an exception of lis pendens is a question of law, and the standard of review of the appellate court in reviewing a question of law is whether the court’s interpretive decision is legally correct. 727 Toulouse, L.L.C. v. Bistro at the Maison De Ville, L.L.C., 2012-1014, p. 7 (La.App. 4 Cir. 8/21/13), 122 So.3d 1152, 1157. If the decision of the district court is based upon pan erroneous application of the law rather than on a valid exercise of discretion, then the decision is not due deference by the reviewing court. Id. at p. 8, 122 So.3d at 1157-1158.

Under the provisions of La. C.C.P. art. 531, “[w]hen two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto.... ” The test for lis pendens is to determine whether a final judgment in the first suit would be res judicata in the second suit. Robert L. Manard III PLC v. Falcon Law Firm PLC, 2012-0147, p. 5 (La.App. 4 Cir. 11/16/12), 119 So.3d 1, 4 (citing Glass v. Alton Ochsner Medical Foundation, 2002-0412, p. 4 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 406).

The first requirement for granting an exception of lis pendens is that there are two or more suits pending. Revel v. Charamie, 2005-0976, p. 4 (La.App. 4 Cir. 2/15/06), 926 So.2d 582, 584, (citing Glass v. Alton Ochsner Medical Foundation, supra). Here, there are two suits pending. Thus, the requirement that there exist two or more pending cases has been met.

The second requirement for granting an exception of lis pendens is that the suits involve the same transaction or occurrence. Revel, supra (citing Hy-Octane Investments, Ltd. v. G & B Oil Products, Inc., 97-28, p. 5 (La.App. 3 Cir. 10/29/97), 702 So.2d 1057, 1060). What constitutes the transaction or occurrence is to be determined on a case-by-case basis. In re Succession of Bernat, 2013-277, p. 8 (La.App. 3 Cir. 10/9/13), 123 So.3d 1277, 1284.

The meaning of the phrase “transaction or occurrence” was extensively addressed in Hy-Octane Investments, Ltd., supra, pp. 5-6, 702 So.2d at 1060, as follows:

|sThe term “transaction or occurrence” is used in seven articles of the Code of Civil Procedure. In addition to its use in Article 1061, it is found in Article 425, which deals with preclusion by judgment; it is used in Articles 531 and 532, both dealing with lis pendens; in Article 891, the term enumerates one of the required formalities of a petition; in Article 1071 it defines the parameters of a cross-claim; and in Article 4845, the term helps define the jurisdictional limits of city and parish courts. Another provision, Article 1153, uses the slightly different expression “conduct, transaction, or occurrence” as part of the formula for when an amendment to a pleading relates back for prescription purposes.
Although none of these articles specifically define the expression “transaction or occurrence,” they variously equate the term with “the subject matter of the litigation” (Articles 425 & 891), “the subject matter of the principal action” or “principal demand” (Article 1061 & 4845), and “the subject matter either of the original action or a reconventional demand or relating to any property that is the subject matter of the original action” (Article 1071). What the transaction or occurrence is that is the subject matter of the litigation, or the principal demand or action, or the original action, has been determined on a case-by-case basis, according to the annotations under these articles.
Some definitions are available, however. Black’s Law Dictionary defines “transaction” as, inter alia, “a broader term than ‘contract,’ ” and “a group of facts so connected together as to be referred to by a single legal name; as a crime, a contract, a wrong.” Among the definitions of “transaction or occurrence” found in 42 Words and Phrases, Supp. p. 201 (1997), is “whether pertinent facts of different claims are so logically related that issues of judicial economy and fairness mandate that all issues be tried in one suit.” The federal courts have given the words “transaction or occurrence” a broad and liberal interpretation in order to avoid a multiplicity of suits. All logically related events entitling a person to institute legal action against another generally are regarded as comprising a “transaction or occurrence.” Lasa Per L’Industria Del Marmo Soc. Per Azioni v. Alexander, 414 F.2d 143 (6th Cir.1969).

In the present case, we find that the two lawsuits in question do not arise out of the same transaction or occurrence. The first action filed in the Civil District Court is a petition for preliminary and permanent injunction, wherein Mr. Krecek sought to enjoin Mrs. Dick and her family from verbally abusing, harassing, and threatening him. The second action is a summary eviction proceeding based on non-payment of rent pursuant to a lease agreement. Clearly, these actions involve | fiseparate and distinct occurrences, and a judgment in either suit would not constitute res judicata in the other. Thus, the second requirement necessary for granting lis pendens has not been met.

The third requirement for granting lis pendens is that the suits involve the same parties in the same capacities. Revel, supra, p. 5, 926 So.2d at 585. The “identity of parties” prerequisite for res judicata does not mean that the parties must be the same physical or material parties, so long as they appear in the same quality or capacity. Berrigan v. Deutsch, Kerrigan & Stiles, L.L.P., 2001-0612, p. 6 (La.App. 4 Cir. 1/2/02), 806 So.2d 163, 167. The only requirement is that the parties be the same “in the legal sense of the word.” Id.

In the case sub judice, the petition for injunction was filed by Mr. Krecek in his individual and personal capacity. On the other hand, the eviction proceeding was brought by Mr. Krecek in his capacity as lessor of the property in question. Thus, the parties do not appear in the same capacity. On the facts presented, we find that the “identity of parties” requirement has not been met.

In sum, we find that the last two requirements for Us pendens have not been met. Accordingly, the trial court did not err in denying the exception of lis pen-dens.

Lack of Subject Matter Jurisdiction

Mrs. Dick argues that the responsive pleading filed with the First City Court, i.e., the exceptions of lis pendens and lack of subject matter jurisdiction, constitutes a compulsory reconventional demand, which triggers the application of La. C.C.P. art. 4845 (B). Pursuant to article 4845 (B), “[w]hen a compulsory re-conventional demand exceeds the jurisdiction of a parish or city court, ... the court shall transfer the entire action to a court of proper jurisdiction.” Mrs. Dick 17submits that although the exceptions are not titled as a reconventional demand, they should be construed as such because they contain substantive allegations of fact against Mr. Krecek.

The question before us is whether the exceptions filed by Mrs. Dick constitute a compulsory reconventional demand. A re-conventional demand is “compulsory” if it “arises out of the transaction or occurrence that is the subject matter of the principal action.” La. C.C.P. art. 1061(B).

A review of the record reveals that the allegations set forth in the exceptions do not arise out of the same transaction or occurrence that is the subject of the eviction proceeding. In the exceptions, Mrs. Dick seeks the termination of Mr. Krecek’s usufruct due to his alleged waste and neglect in failing to make repairs to the property. Mrs. Dick does not assert that she has made repairs to the property for which a reimbursement or setoff is due. Clearly, the allegations made regarding Mr. Krecek’s duties as usufructuary have no bearing on the issue of delinquent rent pursuant to the lease. Based on the foregoing, we find that the pleading at issue does not constitute a compulsory reconven-tional demand, which would trigger the application of La. C.C.P. art. 4845 (B).

For the foregoing reasons, we find no error in the trial court’s denial of Mrs. Dick’s exceptions of lis pendens and lack of subject matter jurisdiction. We further find no error in the granting of the rule for possession in favor of Mr. Krecek. Accordingly, we affirm.

AFFIRMED.

TOBIAS, J., Concurs.

LANDRIEU, J., Concurs for the Reasons Assigned by TOBIAS, J.

TOBIAS, J.,

Concurs.

|tI concur in the decision of the majority. I write separately to address one matter not addressed by the majority.

The 25 April 2013 pleading filed by the defendants/appellants is captioned “Decli-natory Exceptions of Lis Pendens and Lack of Subject Matter Jurisdiction with Incorporated Memorandum.” That pleading is verified by Mr. and Mrs. Dick. As I read the pleading, it does not appear to be an answer to Mr. Krecek’s rule for eviction. The defendants/appellants filed a motion for suspensive appeal on 26 April 2018, the day following the judgment of eviction, which the trial court granted.

La. C.C.P. art. 4735 states:

An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal. [Emphasis supplied.]

I do not find that exceptions of the defendants/appellants assert an “affirmative defense.” As I understand an answer with an affirmative defense, |2such must positively show that the appellant is entitled to relief on the merits of the issue in the rule for eviction.

Since the plaintiff/appellee asserted that rent had not been paid, I find nothing in the defendants/appellants’ pleading that addresses the merits of the appellee’s suit against them. Therefore, no suspensive appeal is before us; the appeal, by operation of law, was converted into a devolutive appeal that is properly before us. Thus, the result reached by us is not affected.

      . The exceptions and the appeal are filed only on behalf of Mrs. Dick.

      . Pursuant to La. C.C.P. art. 4843(E), "In ... a city court in New Orleans ..., the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed twenty-five thousand dollars.”


author: JAMES F. McKAY III, Chief Judge. LOMBARD, J.,

text:
    STATE of Louisiana v. Corey QUINN.
    No. 2013-KA-0726.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2014.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, J. Bryant Clark, Jr., Assistant District Attorney of Orleans Parish, New Orleans, LA, for Appel-lanl/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD, Judge ROSEMARY LEDET).
   JAMES F. McKAY III, Chief Judge.

liThe State appeals the trial court’s judgment granting Corey Quinn’s motion to quash the bill of information. Based on the record before us, we find that the trial court abused its discretion and reverse its judgment.

STATEMENT OF CASE

Essentially, this appeal addresses the State’s ability to dismiss and reinstitute charges in the context of a defendant’s right to a speedy trial. In September of 2009. the defendant was arrested for the attempted murder of Damian Jackson. On November 17, 2010, in case number 492-310 “C”, the defendant, Corey Quinn, was formally charged with attempted second degree murder of Damian Jackson, in violation of La. R.S. 14:(27)30.1. On November 19, 2009, he was arraigned and pled not guilty. On January, 22, 2010, a motion hearing was continued by joint motion and the matter was re-set to March 2, 2010. At the March 2, 2010 hearing trial was set for May 4, 2010. On April 29, 2010, the defendant filed a motion to continue trial; trial was continued to July 13, 2010, and again to August 24, 2010. By joint motion, trial was again continued to November 9, 2010. On that date the State filed a motion to continue, which was granted and trial was re-set for December 9, 2010. On that date, prior to the beginning of trial, the trial court ^denied the State’s request for a continuance based upon the unavailability of a witness, the victim, Damian Jackson; the State entered a nolle prose-qui.

On December 10, 2010, the State reinsti-tuted prosecution under case number 502-583 “C”. Trial was re-set for March 23, 2011. Upon joint motion, the trial was again re-set until May 19, 2011. On May 19, 2011, trial was continued upon defendant’s motion. On July, 18, 2011, the State entered its second nolle prosequi, based upon the unavailability of a witness/ victim and reinstituted charges under case number 507-507 “C”. On August 24, 2011, the defendant filed a motion to quash the bill of information, which is the basis for this appeal. On September 2, 2011, the trial court granted the defendant’s motion to quash.

STATEMENT OF FACT

This is a pre-trial appeal, and the record contains no evidence of the underlying alleged crime. All relevant facts are stated in the statement of the case above and the discussion below.

DISCUSSION

In its sole assignment of error, the State asserts the trial court abused its discretion when it granted the defendant’s motion to quash the bill of information on September 2, 2011, relying upon a violation of the defendant’s constitutional right to a speedy trial under the due process clause of the U.S. Const. Amend. XIV and La. Const, art. 1 § 16.

We generally review a trial court’s ruling on a motion to quash under an abuse of discretion standard. See State v. Love, 2000-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206; State v. Batiste, 2005-1571, p. 9 (La.10/17/06), 939 So.2d 1245, 1251.

La.C.Cr.P. art. 691 grants Louisiana district attorneys the authority and discretion to dismiss criminal charges. Dismissal does not bar subsequent prosecution, except when 1) the defendant does not consent to the dismissal and the first witness has been sworn in at a trial on the merits, and 2) a city court conviction has been appealed to the district court for de novo review. La.C.Cr.P. art. 693. Also, La. C.Cr.P. art. 576 prohibits dismissal and reinstitution of charges in order to circumvent that time limitations upon prosecution found in La.C.Cr.P. art. 578. Batiste, 2005-1571, p. 5, 939 So.2d at 1249.

Louisiana jurisprudence has recognized that the State’s authority to dismiss and reinstitute charges may be overborne under the circumstances of any given case by a defendant’s constitutional right to a speedy trial. State v. Bias, 2006-1153, p. 3 (La.App. 4 Cir. 12/20/06), 947 So.2d 797, 799; See also State v. Larce, 2001-1992 (La.App. 4 Cir. 1/23/02), 807 So.2d 1080 (Recognizing the State’s right to nolle pro-sequi and reinstitute charges after being denied a continuance, where there was no shown attempt to circumvent statutory time limits and no speedy trial violation).

The sole basis of the motion to quash was the constitutional right to a speedy trial. The standard for analyzing a defendant’s claim that his constitutional right to a speedy trial has been violated is the four factor test enunciated in Barker v. Wingo, 407 U.S. 514, 530, 531-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972), which is as follows: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. The circumstances of each individual case will | determine the weight to be ascribed to the length of and the reason for the delay. Id. (citing State v. Reaves, 376 So.2d 136, 138 (La.1979)) (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192). “[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a -serious, complex conspiracy charge.” Reaves, supra at 138. In Barker, the court noted that the length of delay is a triggering mechanism, and the other three factors need not be addressed unless the court finds the length of delay to be presumptively oppressive given the circumstance of the case. State v. DeRouen, 96-0725, p. 3 (La.App. 4 Cir. 6/26/96), 678 So.2d 39, 40. In cases where the district attorney dismisses and reinstitutes charges, the Louisiana Supreme Court has repeatedly stated:

In those cases where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.

Batiste, 2005-1571, p. 5, 939 So.2d at 1249 (quoting Love, 2000-3347, p. 14, 847 So.2d at 1209). In cases where charges are reinstituted within the statutory periods of limitation, in order to merit relief the defendant must make a showing of specific prejudice to his defense. State v. Lee, 2011-0892, p. 2 (La.App. 4 Cir. 1/18/12), 80 So.3d 1292, 1293 (citing State v. King, 2010-2638 pp. 7-8 (La.5/6/11), 60 So.3d 615, 619-620).

Under Barker, the peculiar circumstances of each case determine the weight to be ascribed to the length of delay and the reason for delay. Love, 2000-3347, p. 16, 847 So.2d at 1210. These circumstances include the complexity of the case, the manner of proof, and the gravity of the alleged crime. Id. In this case, there is no question about statutory time limitations limiting further prosecution. The first | shill of information charging the defendant with attempted second degree murder was filed on November 17, 2009. The motion to quash was granted September 2, 2011, just under two years later. In State v. Payton, 2006-1202 (La.App. 4 Cir. 2/28/07), 954 So.2d 193, this Court found a seventeen month lapse between the filing of a bill of information charging possession of cocaine, a violation of La. R.S. 40:967, and the filing and granting of a motion to quash was not prejudicial. In Lee, this Court did not perform a complete Barker v. Wingo analysis, focusing instead on Lee’s failure to show specific prejudice. Lee, 2011-0892, pp. 2-3, 80 So.3d at 1293 (citing King, 2010-2638, 60 So.3d 615). Lee was originally charged with aggravated battery but the State dismissed that charge and recharged him with second degree murder. In Love, the Court found a twenty-two month delay in a possession with intent to distribute cocaine to be presumptively prejudicial. Love, 2000-3347, pp. 17-18, 847 So.2d at 1211. The Louisiana Supreme Court recently found a fifteen and a half month delay in prosecution of possession with intent to distribute marijuana was not presumptively prejudicial. State v. Mathews, 2013-0525 (La.11/15/13), 129 So.3d 1217.

Whether the length of the delay in this case invoked presumptive prejudice or not, analysis of the remaining factors shows that the record contains no evidence of said prejudice.

First, the reason for the delay was the absence of a key witness, who in the instant matter is also the victim. In Batiste, the Court determined that entering a nolle prossequi “because the victim was not present for trial and was wavering in her commitment to going forward with the case” was a legitimate reason and did not indicate the district attorney was flaunting his authority at the expense of the defendant. Batiste, 2005-1571, p. 6, 939 So.2d at 1249. Under these | ^circumstances, the Court found no violation of the right to a speedy trial. Id., 2005-1571, p. 8, 939 So.2d at 1251. The State had a legitimate reason for delay in this case.

Moreover, the record is void of any indication that the defendant moved for a speedy trial prior to filing his motion to quash. This failure inures against a finding that the defendant’s right to a speedy trial was violated. See Love, 2000-3347, p. 19, 847 So.2d at 1211-12 (trial court should weigh the frequency and force of the objections as opposed to attach significant weight to a purely pro forma objection).

Finally, and most importantly, the defendant showed no prejudice to his defense. As discussed above, in Lee, this Court forwent a complete Barker analysis because Lee failed to show specific prejudice. Lee, 2011-0892, pp. 2-8, 80 So.3d at 1293 (citing King, 2010-2638, 60 So.3d 615).

The first factor in Barker has been satisfied in this matter, and no further analysis under Barker is necessary. See DeRouen, 96-0725, at p. 3, 678 So.2d at 40. Nevertheless, considering the facts of this case and recent jurisprudence, we conclude that not only is the length of the delay within the spectrum of acceptability but there is no showing that the State was flaunting its authority at the expense of the defendant. Nor does the record reflect that the defendant asserted his right a speedy trial. Finally, the defendant has clearly failed to demonstrate any grounds to support the premise that that his defense of the charge against him has he has been prejudiced.

CONCLUSION

Based upon the record before this Court and the analysis above, we find that the trial court’s September 2, 2011 ruling granting the defendant’s motion to quash |7the bill of information, based upon a violation of the defendant’s constitutional right to a speedy trial under the due process clause of the U.S. Const. Amend. XIV and La. Const, art. 1 § 16, is reversed.

REVERSED.

LOMBARD, J., Dissents.

LOMBARD, J.,

Dissents.

| ,The issue before the court is whether the trial judge abused his discretion in granting the defendant’s motion to quash under the specific circumstances of this case. See State v. Love, 00-3347, pp. 14-15 (La.5/23/03), 847 So.2d 1198, 1209-10 (the right to a speedy trial is relatively vague and difficult to determine with precision and, therefore, must be analyzed in the particular context of the case).

The specific, relevant facts are as follows. After numerous continuances (during which time the defendant remained incarcerated), the State moved for yet another continuance on December 9.2010, after prospective jurors had already been sworn in. Outside the presence of the jury, the following colloquy took place:

STATE: Judge, at this time, the State would request a continuance on case number 492-310.
COURT: ... I believe this is at least the second time, minimal, that you requested a continuance. And I believe it was based on the fact that the Court was informed that the victim in this case indicated he wouldn’t be here and has not come and it’s even been discussed the possibility of issuing a material witness bond, which you haven’t requested as of yet. But there would have to be a showing that the victim in this case is truly unavailable. Just because he says he’s not coming, does not qualify, I wouldn’t think....
STATE: We would only put on the Record that I talked to the victim. He did indicate he was coming forward. And at this point, the jury’s up, and we don’t have a victim present.
COURT: Last time I believe we continued the case specifically for the victim to come forward.
INSTATE: We also have subpoenaed the victim. We had sent the investigator over yesterday to subpoena the victim at his residence on Spain Street. He was notified prior to today that we have a trial set, and he did indicate that he was not coming five minutes ago when I talked to him on the phone.
COURT: All right.
STATE: And we also indicated to him that we would issue an attachment for his arrest. He indicated he would pay the fine to get out of jail. I told him how much that it would be. He indicated that it was $250 to get out of jail. I told him that it was going to be much more than that. And at that point, he indicated he would just go to jail rather than come to court.
COURT: So basically, you’ve got someone who also turned victim in this case, someone who is down right defiant of your request?
STATE: Yes, sir.
COURT: Was he subpoenaed?
STATE: He was subpoenaed yesterday and we sent the investigator over there until we realized that he lied about his place of employment—
COURT: Last time, if I’m not mistaken, didn’t we continue because he was stuck at work or something?
DEFENSE COUNSEL: That’s correct.
STATE: He told me he couldn’t take off work. He told me yesterday of where he worked and the number. And I called and I spoke to his supervisor and he indicated he hadn’t worked there in two weeks.
DEFENSE COUNSEL: He’s been in jail for over seven months, Judge.
COURT: On this charge?
DEFENSE COUNSEL: Yes, Judge.
COURT: Has the victim ever shown?
DEFENSE COUNSEL: Never, Judge.
STATE: No, sir.
COURT: It’s the State’s position that they don’t get him in for motions, but that’s a respectable position. But let me say this to you, Gentlemen and Ladies: It’s no secret that in a case whenever a victim |sand defendant know each other, it kind of sort of spells a problem. So based on what you’ve told me [ADA], I can’t grant you a continuance.
STATE: Yes, Sir. At this time, the State would enter a nolle prosqui [sic] as to 492-310, and we reserve the right to re-institute it.

The following day, before the defendant was released, the State reinstituted prosecution under case number 502-583 “C.” The defendant was again arraigned and trial was set for March 23, 2011, but on that date (March 23, 2011), the trial was continued by joint motion until May 19, 2011. Once again, on May 19, 2011, it was continued by defense motion until July 18, 2011. On that date, according to the docket masters, the defendant appeared for trial but the State entered its second nolle prosequi based on unavailability of the witness, and reinstituted charges under Case No. 507-507 “C.” Accordingly, in August 2011, after being incarcerated for over twenty-three months, the defendant filed the motion to quash at issue in this appeal. The State maintained that its actions were statutorily and constitutionally valid, insisting that this court determined in Larce, that neither “the defendant’s statutory nor his constitutional rights were violated based on the State’s dismissal and re-institution on the same exact issue, was an issue of whether or not the State was using the nol-pros [sic] and reinstitution as a continuance.” The following colloquy then took place:

COURT: So let me ask you this question: Was the person in continuous custody in the case that you’re holding in your hand?
STATE: State versus Larce, Judge?
COURT: Was the person in continuous custody?
STATE: I don’t have that information.
|4COURT: You don’t think that’s a relevant fact?

The trial judge then observed (in response to the State’s assertion that neither the continued absence of a witness nor the defendant’s continued custody was a consideration sanctioned by this court or the Louisiana Supreme Court), “[s]omewhere in that case law, they have to take into consideration whether a person is in custody continuously and a person who was out of bond.”

Finally, the trial judge then ruled on the motion to quash in the following context:

STATE: And given the fact that [defense counsel] is the individual who brought the motion to quash, we argue that [defense counsel] to [sic] supply the Court with some law stating that if a person is in continuous custody — As I stated previously, there’s other remedies for [defense counsel], if his client has been continuously in custody on [sic] the time. There’s several things that defense counsel could’ve done in that situation other than try to argue the merits of something that’s gone to the Fourth Circuit and the Supreme Court many times and they rule consistently the same way.
COURT: All right. We’re going to give them another chance to rule. Motion to quash granted.

Thus, it is clear from the hearing transcripts that the issue before the trial court (and, thus, this court on appeal) is not simply whether the State has the generic right to dismiss and re-institute charges. Rather, the trial judge was concerned with two issues: (1) whether the State, although acting within statutory parameters, was misusing its authority to nolle prose-qui and reinstitute proceedings to create its own continuance where it was unable to go forward with the prosecution because the victim adamantly refused to appear as a witness; and (2) ^whether the defendant’s continued custody should be considered a factor in determining whether or not to grant a motion to quash.

According to the U.S. Supreme Court, the purpose of the federal constitutional right to a speedy trial is “to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved charges.” U.S. v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982) [emphasis added]. Therefore, when the motion to quash is based upon the district attorney entering a nolle prosequi and later reinstituting charges and it is evident that the district attorney is “flaunting his authority” at the expense of the defendant, the motion should be granted. State v. Batiste, 2005-1571, p. 5 (La.10/17/06), 939 So.2d 1245, 1249.

As pointed out by the majority, one of the factors for consideration in determining whether a defendant’s right to a speedy trial has been violated is the prejudice to the accused resulting from the delay. Barker v. Wingo, 407 U.S. 514, 531-532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Louisiana, this “[prejudice to the defendant should be analyzed in light of the following three interests that the right to speedy trial was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired.” State v. Love, 00-3347 at 19-20, 847 So.2d at 1212 [emphasis added]. Further, because the determination of whether to grant or deny a motion to quash and the duty to make reasonable rulings that protect the rights of defendants without placing unnecessary limits on the State’s ability to prosecute cases is within the trial court’s discretionary authority, absent an abuse of | ^discretion the trial judge’s decision should’ not be disturbed on appeal. See State v. Love, 00-3347, p. 11, 847 So.2d at 1207.

The majority asserts, however, that this defendant is not prejudiced because in Batiste, the Louisiana Supreme Court found held that the absence of a victim is a legitimate reason for the State to nolle prosequi. The Court, however, reversed the judgment granting the motion to quash under the “specific facts presented” and those facts are easily distinguishable from the ones in the instant appeal: (1) the defendant was not incarcerated during the twenty month delay; (2) the motion to quash was granted in Batiste after the State entered a nolle prosequi and reinsti-tuted charges once, not twice as in this case; and (3) the State entered a nolle prosequi “because the victim was not present for trial and was unsure whether she wanted to go forward with her testimony.” Batiste, 2005-1571, p. 8, 939 So.2d at 1251. Notably, although the victim in Batiste may have been reluctant, she had not (as has Mr. Jackson in this case) adamantly refused to come to court for previous trial settings or informed the State that she would go to jail rather than appear as a witness.

Therefore, under the specific circumstances of this case — where there appears to be no reasonable or foreseeable possibility of a trial actually taking place — the State’s decision to repeatedly re-institute proceedings merely to maintain the defendant’s incarceration status denies the defendant not only a fair trial but any trial at all. Such action surely constitutes a “flaunting” of the prosecutor’s authority, particularly in light of the fact that the statutory period has not expired and the trial judge’s decision to quash at this juncture in the proceedings is not prejudicial to the State. Clearly, if and when the complaining witness decides to comply with the State subpoena and to appear as a witness or |7the State ascertains it can go to trial without the witness, the State can re-institute the case and go forward with its prosecution of this defendant. The pretrial incarceration of the defendant without any trial foreseeable is clearly punitive and, because the defendant has not yet been convicted of a crime, oppressive. Thus, the trial judge did not abuse his discretion in granting the motion to quash.

Accordingly, I respectfully dissent.

      . We note that the defendant remained incarcerated throughout the above trial court proceedings until September 2, 2011, when the trial court granted his motion to quash. Furthermore, the State's sole witness/victim, Damian Jackson has consistently failed to appear for any of the above court proceedings.

      . Because defense counsel never filed a speedy trial motion, the state speedy trial statute is not at issue. It was determined at the motion hearing on September 2, 2011, that the defendant had been in continual custody for more than twenty-three months and a trial date had been set nine times.

      . The issue in State v. Larce, 2001-1992 (La.App. 4 Cir. 1/23/02), 807 So.2d 1080 was whether the State was within its authority to nolle prosequi a case, reserving the right to reinstate charges, when its motion for a continuance was denied and the court explicitly confined its holding to cases where the defendant’s statutory or constitutional rights to a speedy trial were not at issue. Thus, Larce was inapplicable to the situation before the trial court.

      . This appears to be a correct assumption. As noted by the Louisiana Supreme Court recently in State v. Mathews, 2013-0525, p. 2 (La.11/15/2013), 129 So.3d 1217, the U.S. Supreme Court stated in U.S. v. Loud Hawk, 474 U.S. 302, 312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) "[Ujnder the rule of MacDonald, when defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause.” Thus, it follows that when the converse is true — the defendant is incarcerated — such incarceration is appropriately considered within the context of a constitutional speedy trial claim.

      . Upon defense counsel's request that the dismissal be with prejudice, the trial judge inferred he did not have the authority to dismiss with prejudice. Although such a remedy is drastic and rarely appropriate, the trial court does have such authority. State v. King, 2010-2638, p. 6 (La.5/6/11), 60 So.3d 615, 618.

      . Inexplicably, although acknowledging that a twenty-two month delay was found presumptively prejudicial in State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, the majority cites two cases wherein shorter time periods were found not to be presumptively prejudicial and concludes that the record shows no evidence of "said prejudice.”


author: MADELEINE M. LANDRIEU, Judge. BONIN, J.,

text:
    STATE of Louisiana v. Darryl ANDERSON.
    No. 2013-KA-1196.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 25, 2014.
    Leon A. Cannizzaro, Jr., District Attorney Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Gary W. Bizal, L.L.C., New Orleans, LA, for Defendant/Appellant.
    Court composed of Chief Judge JAMES F. McKAY, III, Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU.
   MADELEINE M. LANDRIEU, Judge.

Darryl Anderson appeals the trial court’s denial of his motion to suppress a taped conversation between himself and Jermaine L. Lea, a co-defendant, which was recorded while he and Mr. Lea were detained in the back of a police car. For the reasons that follow, we affirm the ruling of the trial court.

STATEMENT OF THE CASE

Mr. Anderson was charged by bill of information on August 7, 2012 with conspiracy to obstruct justice by tampering with evidence. On September 4, 2012, Mr. Anderson filed a motion to suppress the recorded conversation between himself and Mr. Lea. The trial court denied the motion to suppress, providing oral reasons for his ruling on March 1, 2013. On May 21, 2013, Mr. Anderson entered a guilty plea and preserved his right [under State v. Crosby, 338 So.2d 584 (La.1976) ] to appeal the adverse ruling on the motion to suppress. The trial court sentenced Mr. Anderson to two years imprisonment, suspended, and two years active probation. Mr. Anderson appeals the trial court’s denial of his motion to suppress the evidence.

| .FACTS

On June 15, 2012, New Orleans Police Department Detective Kyle Hinrichs obtained a search warrant for 2103 Baronne Street, Apartment 1, in New Orleans, Louisiana. Det. Hinrichs testified that prior to obtaining the search warrant, he had worked with a confidential informant and had arranged a controlled drug transaction between Mr. Lea and the informant.

Det. Hinrichs planned to execute the search warrant on the evening of June 20, 2012. In connection with that effort, Detective Evan Cox began surveillance of the Baronne Street location in order to detain Mr. Lea outside of the apartment prior to the execution of the warrant. Roughly twenty minutes into the surveillance, Sergeant Manuel Castellón observed Mr. Lea driving downtown on Oretha Castle Haley Boulevard. Sgt. Castellón began following Mr. Lea and notified the other officers. Det. Hinrichs and the other officers then left the Baronne Street location to assist Sgt. Castellón.

While stopped next to Mr. Lea at a red light at the intersection of Oretha Castle Haley Boulevard and Calliope Street, Sgt. Castellón observed Mr. Lea look in his direction and then make a phone call. When the light turned green, Sgt. Castel-lón activated his lights and siren signaling Mr. Lea to stop. Det. Hinrichs testified that the officers suspected Mr. Lea was calling to notify someone of the search warrant. Mr. Lea was detained in the back of Sgt. Castellon’s police unit and driven to the Baronne Street location.

|3On the way to Baronne Street, Det. Hinrichs was notified by Det. Cox that an unknown individual, later identified as Mr. Anderson, had arrived at the apartment complex that was the subject of their surveillance and had gone inside hurriedly. Det. Hinrichs then entered the apartment to execute the warrant. Inside the apartment Det. Hinrichs found Mr. Anderson, a woman, and two children. Mr. Anderson was coming from the direction of the bathroom. The toilet in that bathroom was running as if it had just been flushed. Det. Hinrichs placed Mr. Anderson in handcuffs and advised him of his Miranda rights. He then frisked Mr. Anderson, which resulted in the discovery of $2,000 in cash. Mr. Anderson stated to one of the detectives that the woman in the house, Ms. Felicia Lampton, had given him the money. Mr. Anderson was then placed in the back of the same police car in which Mr. Lea was being detained.

While in the back of a police car, Mr. Lea and Mr. Anderson engaged in a conversation, which was recorded. The recording revealed that Ms. Lampton had retrieved the crack cocaine from a soap box and, at Mr. Lea’s direction, had given it to Mr. Anderson to flush down the toilet. Mr. Anderson and Mr. Lea were the only ones in the police car at the time of their conversation. There is no evidence in the record that police officers purposefully placed the men in the car together to surreptitiously record any conversation they might have. Mr. Anderson, Mr. Lea, and Ms. Lampton were arrested for obstruction of justice.

ERRORS PATENT

A review of the record reveals no errors patent.

14ASSIGNMENT OF ERROR

In his sole assignment of error, Mr. Anderson asserts that the trial court abused its discretion in denying his motion to suppress the taped conversation and/or statements of Mr. Lea recorded while the he and Mr. Anderson were detained in the police car.

STANDARD OF REVIEW

The trial court has great discretion when ruling on a motion to suppress, and its ruling will not be disturbed absent an abuse of that discretion. State v. Anderson, 2006-1031, p. 2 (La.App. 4 Cir. 1/17/07), 949 So.2d 544, 546. Where the facts are not in dispute, the reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts. Id.

DISCUSSION

Mr. Anderson argues that Mr. Lea was unlawfully detained, and that, therefore, the recorded conversation between himself and Mr. Lea should have been suppressed as a fruit of the illegal detention. He suggests that the justification for Mr. Lea’s detention as incident to the execution of the search warrant is not valid given the circumstances presented here. In support of his argument, Mr. Anderson relies upon Bailey v. United States, in which the Supreme Court held:

Detentions incident to the execution of a search warrant are reasonable under the Fourth Amendment because the limited intrusion on personal liberty is outweighed by the special law enforcement interests at stake. Once an individual has left the immediate vicinity of the premises to be searched, however, detentions must be justified by 15some other rationale.

586 U.S.-, 138 S.Ct. 1031, 1042-43, 185 L.Ed.2d 19 (2013).

In Bailey, the police obtained a warrant to search an apartment for a handgun that had been observed by a confidential informant while the informant was at the apartment to purchase drugs. The police conducted surveillance at the location and observed Mr. Bailey and another person leave the apartment and drive away in a car. Detectives followed and stopped them approximately one mile from the target location. Mr. Bailey was arrested and charged under federal law with possession of cocaine with intent to distribute, possession of a firearm by a felon, and possession of a firearm in furtherance of a drug-trafficking offense.

The federal district court denied Mr. Bailey’s motion to suppress the apartment key seized from him pursuant to his arrest. After a jury trial, Mr. Bailey was found guilty on all three counts. The Second Circuit Court of Appeal affirmed Mr. Bailey’s conviction. The United States Supreme Court reversed the conviction after finding that the detention of an individual incident to the execution of a search warrant is lawful when the individual is in the immediate vicinity of the premises to be searched, which Mr. Bailey was not.

Mr. Anderson argues that his case is analogous to Bailey because Mr. Lea was arrested ten blocks from the target location and subsequently detained in a police car without probable cause. We disagree. In Bailey, unlike in the present case, there was no independent probable cause to arrest Mr. Bailey. The officers in Bailey had knowledge of a gun in an apartment based on information from a | ficonfidentiaI informant. They had not previously observed Mr. Bailey in possession of the firearm and had not previously observed Mr. Bailey engage in any unlawful conduct. In the instant case, officers had independent probable cause to arrest Mr. Lea because they had reliable information that he had engaged in a drug transaction with a confidential informant. We find, considering the facts of his ease, that the detention of Mr. Lea was lawful because the officers had probable cause to arrest based on the previous controlled purchase conducted by Det. Hinrichs.

“Probable cause exists when the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonable and trustworthy information, are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense.” Gibson v. State, 1999-1730, p. 7 (La.4/11/00), 758 So.2d 782, 788. Det. Hinrichs testified at the hearing on the motion to suppress that the search warrant was obtained after he conducted a controlled substance purchase between a confidential informant and Mr. Lea at 2103 Baronne Street. Det. Hinrichs said that although Mr. Lea did not violate any law while he was driving his vehicle, he was stopped because he was recognized as the target of the search warrant. Det. Hin-richs had probable cause to believe that Mr. Lea distributed narcotics based on a prior drug exchange and investigation into Mr. Lea. Accordingly, Mr. Lea’s detention was justified. Thus, the statements 17made in the taped conversation between Mr. Anderson and Mr. Lea in the back of the police vehicle were not obtained as a result of an illegal seizure. The motion to suppress was properly denied.

Irrespective of the lawfulness of Mr. Lea’s detention, Mr. Anderson’s argument would fail because Mr. Anderson did not have a reasonable expectation of privacy in the police car. In State v. Davis, this Court ruled that a recorded conversation between the defendant and a co-defendant while detained in a police car was admissible, explaining “[Defendant] had less of an expectation of privacy. He was not just a passenger in a police car, but had been placed under arrest and given his Miranda rights. Once arrested, the police car became [defendant's temporary jail in which he had no reasonable expectation of privacy.” 96-1659, p. 3 (La.App. 4 Cir. 11/27/96), 684 So.2d 540, 540. Here, Mr. Anderson, after being arrested, Miran-dized, and placed in the police car, had a voluntary conversation with Mr. Lea. There was no error by the trial court in denying the motion to suppress.

CONCLUSION

For the reasons stated above, we affirm the ruling of the trial court.

AFFIRMED.

BONIN, J., Concurs with Additional Reasons.

BONIN, J.,

Concurs with Additional Reasons.

|TI concur.

Mr. Anderson’s argument is rooted in the proposition that the seizure of Mr. Lea was unlawful. The police, however, had probable cause to arrest Mr. Lea and, thus, effectuated a lawful seizure. Therefore, Mr. Anderson’s argument regarding the exclusion of statements made by Mr. Lea as fruit of the poisonous tree growing from this claimed unlawful seizure is groundless.

About five days prior to Mr. Lea’s arrest by Sergeant Castellón, Detective Hinrichs observed an informant perform a controlled purchase of illegal narcotics from Mr. Lea. This formed the basis for the issuance of a search warrant for Mr. Lea’s home. It was in preparation for the execution of this search warrant that Sergeant Castellón arrested Mr. Lea while he was driving blocks away from his home. This arrest was simply too attenuated from the execution of the search warrant to have occurred as “incident thereto.” As a result, we must determine whether independent probable cause existed to arrest Mr. Lea. See Bailey v. United States, — U.S. -, 133 S.Ct. 1031, 1043, 185 L.Ed.2d 19 (2013) (maintaining the important line visa-vis execution of search warrants and detentions incident thereto, but explicitly recognizing that arrests (or detentions) may still be justified, necessarily, under other well-recognized exceptions to the warrant requirement).

12In our de novo determination that probable cause existed to arrest Mr. Lea, we note the following. First, Detective Hinrich’s subjective belief that he was arresting Mr. Lea in connection with the execution of the search warrant is irrelevant to our review of whether the police had probable cause to arrest. See Whren v. U.S., 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Waters, 00-0356, p. 4 (La.3/12/01), 780 So.2d 1053, 1056 (stating that our review of whether probable cause existed to arrest “is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer”).

Second, the fact that the police waited five days after they had probable cause to arrest Mr. Lea is also inconsequential as the “[pjolice are not required to arrest an individual at the point at which probable cause for arrest arises.” State v. Kirk, 00-0190, p. 5 (La.App. 4 Cir. 11/13/02), 833 So.2d 418, 423. See also State v. Coleman, 412 So.2d 532, 536 (La.1982); U.S. v. Watson, 423 U.S. 411, 451-452, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (discussing timeliness in the execution of search and arrest warrants after the formation of probable cause).

Third, our review of whether probable cause existed at the time of this arrest is “based on an assessment of the collective knowledge possessed by all of the police involved in the investigation.” State v. Pratt, 08-1819, pp. 1-2 (La.9/4/09), 16 So.3d 1163, 1164-1165; State v. Surtain, 09-1835, p. 11 (La.3/16/10), 31 So.3d 1037, 1046. Here, Detective Hinrich’s knowledge of Mr. Lea’s prior illicit activity formed the basis of the probable cause justifying Sergeant Castellon’s arrest of Mr. Lea.

      . The search warrant was introduced as evidence in the motion hearing, but is absent from this record. At the motion hearing, the trial judge did not allow questions into the details of the prior investigation of Mr. Lea. There is little in the record, besides the controlled purchase, detailing Mr. Lea’s prior drug-related activities.


author: BROWN, Chief Judge. CARAWAY, J.,

text:
    STATE of Louisiana, Appellee v. Deangilo L. WHITE, Appellant.
    No. 48,788-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2014.
    Brent A. Hawkins, Louisiana Appellate Project, for Appellant.
    Charles R. Scott, II, District Attorney, Dale G. Cox, Jr., Sarah S. Midboe, Suzanne M. Owen, Assistant District Attorneys, for Appellee.
    Before BROWN, WILLIAMS, and CARAWAY, JJ.
   BROWN, Chief Judge.

| ] Defend ant, Deangilo L. White, was charged with second degree murder. Following a jury trial, he was convicted of the responsive verdict of manslaughter. He was sentenced to 40 years at hard labor, the maximum for manslaughter. He appeals this sentence as being excessive. We affirm.

Facts

At approximately 8:00 p.m. on June 11, 2009, Arnita Lewis returned to her Cedar Grove home after picking up her 25-year-old daughter, Awaii Lewis, from work. Shortly after their arrival, the women saw the 19-year-old defendant and his two brothers standing in the street engaged in a fistfight with Kevin Powell. Apparently Powell got the best of the three White brothers. When the brawl ended, Powell withdrew to the carport of neighbor Jackie Bright’s house. The White brothers then grabbed a golf club and plastic chair and re-initiated the fight. Again Powell bested the brothers. When the fighting ceased for the second time, the White brothers began to leave and an exhausted Powell walked into the carport. Moments later, defendant obtained a handgun and fired at least two rounds that struck Powell. Arni-ta and Awaii Lewis testified that defendant fired five shots; however, the police only found two shell casings. They explained that it was dark and these casings were small and others could have been lost in the grass. The White brothers fled the scene, and Awaii stayed with Powell until the paramedics arrived. Powell, who was 22 years old, was taken to the hospital, where he died. Two days later, Arnita spoke with defendant on the phone. Arni-ta claimed that Deangilo “was upset and crying, and his words to me [Arnita] was he didn’t mean to do it.... He didn’t meant to shoot Kevin Powell.”

1 ¡¿Following a jury trial, Deangilo White was convicted of the responsive verdict of manslaughter. At sentencing, Miranda Powell, sister of the victim, Kevin Powell, spoke on behalf of the family. Miranda testified that Powell left behind a mother, four sisters, a wife, and two children, who were two years old and two months old at the time of his death. Powell worked two jobs and was the sole financial provider for his immediate family; he also contributed to support his mother and sisters.

The defense did not present any witnesses, but asked the trial court to note that defendant was a first felony offender and that he received Social Security benefits for a learning disability.

The trial court stated that it reviewed the sentencing guidelines and found “the relevant factors under 894.1 to be applicable under three, nine, 10, 18, 19, as well as a few others.” The court then provided a brief summary of the case. Specifically, the court noted that defendant and his two brothers fought the victim, hitting him with a chair and a golf club. When the fighting ceased, defendant armed himself with a gun and fired “five rounds” at the victim. The court believed that the facts supported a second degree murder conviction. The trial court sentenced defendant to 40 years at hard labor with credit for time served.

The defense filed a motion to reconsider sentence, which was denied, and this appeal ensued.

Discussion

| ..¡According to the defense, the trial court failed to give consideration to numerous mitigating factors prior to imposing the maximum sentence. Particularly, the defense claims that defendant had no criminal history and would respond positively to a shorter period of incarceration. Further, the defense asserts that the responsive verdict of manslaughter indicates that the jury found that defendant acted under strong emotional provocation. The defense contends that the maximum sentence was predicated on the trial court’s belief that defendant should have been found guilty of second degree murder. The defense believes that the maximum sentence for this offender shocks the sense of justice and is constitutionally excessive.

La. Const. Art. 1, § 20 prohibits cruel, excessive, and unusual punishment. This proscription not only prohibits barbaric punishment but also sentences that are disproportionate to the offense committed. An excessive sentence is one that is grossly disproportionate to the offense committed. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.

A court’s proportionality analysis should be guided by the gravity of the offense and culpability of the offender. In the case sub judice, an innocent 22-year-old man was shot to death. The victim worked and | ¿supported his wife, two children, mother and sisters. The victim’s family has been severely impacted by his death.

In considering the nature of the offense, both the trial court and the reviewing court may assess whether the crime for which defendant has been convicted adequately describes his conduct when the conviction is for a lesser included responsive offense to the crime charged. The fact that the evidence might have supported a verdict of second degree murder is an appropriate sentencing consideration in a case such as this one in which the defendant has been convicted of the lesser offense of manslaughter. State v. Harris, 11-626 (La.App. 5th Cir. 11/27/12), 105 So.3d 914.

An examination of the facts in this case demonstrates that this was a second degree murder case in which defendant ben-efitted greatly from the lesser verdict of manslaughter. Three brothers fought a lone man and used as weapons a golf club and a chair. When the fight ended, Powell who was wearing only basketball shorts walked away, but defendant got a pistol and shot Powell. Intentionally pointing and firing a gun at close range supports a specific intent by defendant to kill the unarmed and defenseless victim.

As to the mitigating factors, it is noted that the defense presented no evidence or testimony on behalf of defendant. Instead, defense counsel merely asked the trial court to recognize that defendant was a first felony offender and had a learning disability. The trial court acknowledged this, as well as defendant’s age at the time of the crime. The trial court articulated a factual basis for the sentence imposed and sufficiently complied with La. C. Cr. P. art. 894.1.

| ¡/Therefore, based upon the record and the totality of the circumstances of this case, as well as the fact that defendant greatly benefitted from the jury’s conviction on the responsive verdict of manslaughter, the sentence imposed is neither grossly disproportionate to the severity of the offense of conviction, nor is it shocking to the sense of justice.

Conclusion

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

| ¡The jury concluded that the facts of this crime presented a case of manslaughter. An ongoing antagonistic relationship existed between the defendant, his brothers and the victim. In the short time before the shooting, the parties’ fight had provoked the defendant. In fact, by the time of the offense, two rounds of mutual fist-fighting had ensued between the men. White was not a bystander. He actively engaged in the brawl only a short time before he obtained a weapon and shot toward the victim from the driveway, outside the carport. The physical evidence showed that only two shots were fired. Two shell casings were located in the driveway. Bullet impacts were found at the back of the carport and on a side mirror of a car parked under the carport. Blood stains were found in front of the car, at the back of the carport. The wounds inflicted on the victim suggest a random type of shooting which was not at close range.

This overall view of the evidence coupled with the defendant’s initial confession of the crime to a neighbor could be weighed by the jury and determined to amount to the crime of manslaughter. A reasonable measure of the criminal intent could determine a reckless unintended homicide by a humiliated youthful combatant sufficiently provoked in the heat of passion. Therefore, by the definition of the crime of manslaughter, the culpability of this offender as determined by the jury is not of the same magnitude of a murderer.

Discarding this unanimous verdict of the jury, the trial court expressed its belief that the jury reached a compromise verdict and that the crime committed was second degree murder. The maximum manslaughter | ¡.sentence for this youthful first offender was then imposed. The majority now agrees with the trial court that the facts do not allow for the jury’s manslaughter verdict which is only permissible as a compromise verdict.

The proper perspective from which to approach sentence review accords paramount importance to the nature of the conduct proved at trial. With Louisiana’s responsive verdict scheme, the jury is provided the discretion to return verdicts for lesser included offenses against the weight of the evidence present at trial. The trial court in sentencing and the reviewing court may assess whether the crime for which defendant has been convicted adequately describes his conduct when the conviction is for a lesser included responsive offense of the crime charged. State v. Lewis, 09-1404 (La.10/22/10), 48 So.3d 1073, 1077-1078.

When I follow these dictates of the Louisiana Supreme Court, I cannot say that the jury’s manslaughter verdict was against the weight of all evidence presented at trial, making it a compromise verdict for what was clearly a second degree murder. The choice between the competing views of the evidence was the jury’s. Therefore, the conclusion of manslaughter adequately describes the defendant’s conduct in this case, and the sentence must be assessed for that crime.

A sentence at or near the maximum should ordinarily apply only to the most blameworthy offenders committing serious violations of the described offense. State v. LeBlanc, 09-1355 (La.7/6/10), 41 So.3d 1168. While this manslaughter was committed with a gun and is deserving of an upper range sentence, the trial court’s imposition of the maximum sentence on this youthful first offender was an abuse of discretion.

      . Jackie Bright also witnessed the shooting and testified before the grand jury. Prior to trial she suffered two strokes. She did testify at trial but her memory had to be refreshed with her Grand Jury testimony.