text:
    In re INTERDICTION OF Rita Venturelli POWELL.
    No. 14-CA-78.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 24, 2014.

      F. Evans Schmidt, Caitlin Morgenstern, Attorneys at Law, Koch & Schmidt, LLC, New Orleans, LA, for Appellees.
    Lawrence J. McGrath, II, Attorney at Law, New Orleans, LA, for Appellants.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

| j)This appeal arises out of the trial court’s judgment granting a petition to sell the property of the interdict, Rita Ventu-relli Powell, which was filed by the curator, Gina Powell Boudreaux, and the undercu-rator, Lori Powell Stines. Appellants, Francisco Venturelli, Linda Calise, Cynthia Powell Friend and Michelle Freder-icks, filed the instant appeal seeking to reverse the trial court’s judgment granting the curator and undercurator’s petition to sell the property of the interdict. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Rita Venturelli Powell (“the Interdict”) owned the property at issue with her now deceased husband, Jimmy Clarence Powell. Rita and her husband had five daughters, Gina Powell Boudreaux, Lori Powell Stines, Cynthia Powell Friend, Michelle Fredericks and Jaime Powell. On December 6, 2011, Gina Powell Boudreaux and Lori Powell Stines, appellees, filed a petition for the permanent interdiction of their mother, alleging that their mother had lost the ability to properly care for her person, property and financial assets due to her history of |Ranoxic brain injury, subdural hemorrhage, seizure disorder, and significant neurocognitive deficits. At the time the petition for interdiction was filed, Rita was 68 years old and resided in Riverbend Nursing & Rehab Center in Belle Chasse, Louisiana.

On April 24, 2012, the trial court appointed an attorney to represent Rita in connection with the petition for interdiction. After the trial court conducted a hearing on the petition for interdiction, the trial court issued a judgment on June 14, 2012, granting the permanent interdiction of Rita, and appointing Gina Powell Bou-dreaux and Lori Powell Stines as curator and undercurator, respectively.

On July 24, 2012, the brother and sister of the Interdict, Francisco Venturelli and Linda Calise, appellants, filed a motion to remove the curator and undercurator. In their motion, Mr. Venturelli and Mrs. Calise made several allegations, including claims that both the curator and the un-dercurator refused to share the Interdict’s medical information with family members, that they prohibited family members from removing the Interdict from the nursing home for any reason, and that they refused to allow the Interdict to be evaluated to determine whether hyperbaric treatment would be an appropriate treatment for her condition. At the conclusion of the hearing of the motion to remove the curator and undercurator, the trial court denied the motion, finding that Mr. Venturel-li and Mrs. Calise failed to show good cause for their removal.

On June 19, 2013, appellees filed a petition to sell the Interdict’s home, asserting that the proposed sale was in the best interest of the Interdict because she no longer lived in the home, and the home’s required upkeep and maintenance resulted in an unnecessary expense on the Interdict. Due to the Interdict’s limited income, appellees asserted that the proceeds of the sale would be used for her maintenance and support. The petition further alleged that appellees desired to sell |4the property to specific purchasers through a private sale for $155,000. Appellees attached a copy of the proposed residential sale agreement to the petition.

On August 9, 2013, the trial court held a hearing on the petition to sell the property of the Interdict. At the hearing, appellees presented the trial court with an appraisal of the home for $150,000, explaining that the home had extensive termite damage. The court-appointed attorney for the Interdict was also present at the hearing and stated that he had no objection to the petition. Two of the Interdict’s other daughters, Michelle Fredericks and Cynthia Powell Friend, appellants herein, also made an appearance at the hearing. The trial court allowed Mrs. Fredericks and Mrs. Friend to present evidence of a “drive-by” appraisal of the home for $240,000, that they had obtained through their own appraiser. Mrs. Fredericks also argued that she opposed the sale of her mother’s home because her mother allegedly told her that she did not want her home sold. Mrs. Fredericks also complained that she and other family members were prohibited from removing the Interdict from the nursing home. The trial court informed Mrs. Fredericks that those issues were not before the court, but ordered appellees to obtain another appraisal of the home, in order to ensure that the property would be sold for its fair market value. In addition, the trial court discharged the Interdict’s court-appointed attorney, finding that his involvement was no longer necessary once the curator and un-dercurator had been appointed to represent the interests of the Interdict.

On September 23, 2013, the trial court held another hearing on the petition to sell the Interdict’s property, wherein appellees submitted a new appraisal of the home for $175,000. Appellees explained that because the proposed sale of the home for $155,000 would occur through a private sale, as opposed to occurring through a real estate agent, the Interdict would receive the benefit of not having to pay between four and six percent of the sale price in commission to a real estate Uagent. Appellees again argued that the sale of the home was in the best interest of the Interdict. Specifically, appellees noted that the Interdict’s only source of income was Social Security, and that the balance of her expenses is paid by Medicaid, after her Social Security is expended. Appel-lees asserted that the entire proceeds of the sale would be held in reserve to pay for the Interdict’s maintenance and care, as opposed to having those expenses paid by Medicaid. Once the sale proceeds are expended, appellees informed the trial court that the Interdict would rejoin the Medicaid program for purposes of her maintenance and care.

The Interdict’s niece appeared at the hearing and requested permission to play a video for the trial court, wherein the Interdict allegedly stated that she did not want her home to be sold. The trial court refused to consider the video tape, stating that to do so would be improper under the Louisiana Rules of Evidence due to the fact that Rita had been interdicted, and therefore, was not competent to testify. After considering the totality of the circumstances, the trial court held that the proposed sale was fair and reasonable and granted the petition to sell the Interdict’s property. The trial court issued a judgment authorizing appellees to sell the Interdict’s home on October 8, 2013.

Appellants, Francisco Venturelli, Linda Calise, Cynthia Powell Friend and Michelle Fredericks, initially filed a motion for a suspensive appeal on November 18, 2013, which was granted by the trial court on November 20, 2013. However, after appellants failed to furnish the required bond within the time provided by law, this Court converted the appeal to a devolutive appeal on February 24, 2014.

Appellees request that this Court award sanctions against appellants under La. C.C.P. art. 2164 for filing a frivolous appeal.

|fiLAW AND ANALYSIS

On appeal, appellants allege that the trial court committed several errors in granting appellees’ petition to sell the property of the Interdict. However, as an initial matter, we find that appellants’ appeal of the trial court’s judgment at issue is not properly before this Court. An appeal taken in connection with an interdiction is governed by La. C.C.P. art. 4555, which provides that an appeal from (1) a judgment of interdiction, (2) an order or judgment appointing or removing a curator or undercurator, or (3) a judgment modifying or terminating interdiction shall be taken within thirty days from the applicable date provided by Article 2087.

In this case, the trial court issued a judgment on June 14, 2012, ordering the permanent interdiction of Rita and appointing Gina Powell Boudreaux and Lori Powell Stines as curator and undercurator, respectively. Under La. C.C.P. art. 4555, appellants were entitled to appeal that judgment, asserting any arguments they may have had regarding the Interdict’s capacity or the propriety of the curator and undercurator.

However, appellants failed to file any such appeal of that judgment within the delays provided in La. C.C.P. art. 4555. Instead, appellants have taken an appeal of the judgment granting the curator and undercurator’s petition to sell the Interdict’s property, wherein they have raised issues regarding the Interdict’s capacity to consent to the sale of the property, as well as issues regarding the Interdict’s current medical condition. First, we emphasize that these issues were simply not before the trial court when it ruled upon the petition to sell the Interdict’s property, and therefore, they are not properly assigned as errors on appeal. More importantly, La. C.C.P. art. 4555 does not provide appellants with the right to appeal a judgment granting a petition to sell property of an interdict. |7Because appellants have failed to appeal a judgment prescribed in La. C.C.P. art. 4555, we find that this appeal is not properly before this Court.

Nevertheless, we have reviewed appellants’ assignments of error and find them to be without merit.

Assignment of Error Number One:

In their first assignment of error, appellants contend that the trial court erred by depriving the Interdict of her property without due process of law because the Interdict was never provided with notice of the hearing of the petition to sell her property, thereby denying her of an opportunity to be heard. Appellants further allege the trial court erred by discharging the Interdict’s court-appointed attorney without appointing new counsel to represent her at the second hearing, which occurred on September 23, 2013.

A full interdict lacks capacity to make juridical acts. La. C.C. art. 395. Following an order of full interdiction, the court is required to appoint a curator to represent the interdict in juridical acts and to care for the person or affairs of the interdict, as well as an undercurator to discharge the duties prescribed for him by law. La. C.C. arts. 392 and 393. The relationship between interdict and curator is the same as that between minor and tutor, and therefore, the following procedural rules that are applicable to tutorship are applicable to curatorship: La. C.C.P. arts. 4261-4269, 4270-4274, 4301^342, and 4371. See La. C.C.P. art. 4566(A).

A curator may sell any interest of an interdict in property, for any purpose, when authorized by the court as provided in La. C.C.P. art. 4271. See La. C.C.P. art. 4301. In order to sell the property of the interdict, La C.C.P. art. 4271 provides, in pertinent part, as follows:

The [curator] shall file a petition setting forth the subject matter to be determined affecting the [interdict’s] interest, with his recommendations and the reasons therefore, and with a written ^concurrence of the [undercurator]. If the court approves the recommendations, it shall render a judgment of ho-mologation. The court may require evidence prior to approving the recommendations.

In Interdiction of Smith, 467 So.2d 105, 106-07 (La.App. 3 Cir.1985), the Third Circuit set forth additional steps to take when a curator seeks to sell an interdict’s property at a private sale, which are enumerated in La. C.C.P. art. 4341. La. C.C.P. art 4341 provides as follows:

In addition to the requirements of Article 4271, a petition for authority to sell property of [an interdict] at private sale shall set forth a description of the property, the price and conditions of the proposed sale, and the reasons which make it advantageous to the [interdict] to sell at private sale.

Our review of the record fails to show any due process violations in connection with the trial court’s grant of the petition to sell the Interdict’s property. We find that appellees have fully complied with the applicable law in petitioning the trial court for approval of their request to sell the Interdict’s property. Without citing any authority, appellants contend that the trial court deprived the Interdict of due process of law because she was not served with notice of the hearing, and therefore, was denied an opportunity to be heard. We disagree. The applicable law clearly provides that the curator is appointed to represent the interdict’s interests once a full interdiction has been ordered, and a full interdict lacks legal capacity to sell property. See La. C.C. arts. 392 and 395. Therefore, we find no error in granting the petition to sell the Interdict’s property, even though the Interdict was not served with notice of hearing, or given an opportunity to be heard.

Moreover, while we note that under La. C.C.P. art. 4544, the trial court is required to appoint an attorney to represent an interdict in connection with a petition for interdiction, there is no requirement that the court-appointed attorney continue to represent the interdict once the trial court renders a judgment of | (¡interdiction and appoints a curator and undercurator. Here, the Interdict’s court-appointed attorney appeared at the first hearing of the petition to sell the Interdict’s property. However, the trial court discharged the court-appointed attorney at that hearing, finding that because the curator and the undercurator had been appointed to represent the Interdict following the interdiction proceeding, the Interdict’s attorney was no longer necessary. We find no error in the trial court’s dismissal of the Interdict’s court-appointed attorney. Therefore, we find this assignment of error to be without merit.

Assignment of Error Number Two:

In their second assignment of error, appellants contend that the trial court erred in granting the petition to sell the Interdict’s property because the curator failed to file a personal report regarding the Interdict’s condition as required by La. C.C.P. art. 4569. Appellants further allege that the trial court erred by failing to admit into evidence the video tape of the Interdict allegedly contesting the sale, and by failing to make any evaluation of the Interdict’s medical condition as it related to the sale.

As set forth above, we have found that appellees complied with the applicable law in petitioning the trial court for approval to sell the Interdict’s property. Contrary to appellants’ assertion, La. C.C.P. art. 4569 does not require the curator to file a personal report as to the Interdict’s condition in connection with a petition to sell the Interdict’s property. Rather, Article 4569 requires that the curator file such a report “annually, upon the termination of his responsibilities, and at any other time ordered by the court.” La. C.C.P. art. 4569. There is no indication in the record that the trial court ordered such a report in connection with the petition to sell the Interdict’s property, or that the trial court should have ordered such a report under the circumstances.

| inThe Interdict’s medical condition was simply not an issue before the trial court •with respect to the petition to sell the Interdict’s property. If appellants seek to change the status of the trial court’s judgment of full interdiction, based upon an alleged change or improvement in the Interdict’s current medical condition, their only remedy is to file a motion to modify or terminate the Interdict’s full interdiction under La. C.C.P. art. 4554. Because the judgment at issue only involves the curator and undercurator’s request to sell the property of the Interdict, any issues involving the Interdict’s condition, or her legal capacity, were not before the trial court. Therefore, we find this assignment of error to be without merit.

Assignment of Error Number Three:

Lastly, appellants contend that the trial court erred in granting the petition to sell, where no evidence was presented indicating that the sale was in the best interest of the Interdict. On the contrary, we find that the record clearly shows that appellees established that the sale was in the Interdict’s best interest. Specifically, appellees explained that the sale of the home was in the best interest of the Interdict because she no longer lived in the home, and the home’s required upkeep and maintenance created an unnecessary financial burden on the Interdict’s limited income. Specifically, the inspection report revealed an active Formosan termite infestation within the home. Appellees noted that the Interdict’s only source of income was Social Security, and that the balance of her expenses is paid by Medicaid. Ap-pellees asserted that the entire proceeds of the sale would be held in reserve to pay for the Interdict’s maintenance and care, as opposed to having those expenses paid by Medicaid.

Furthermore, even though it was under no requirement to do so, the trial court allowed appellants to present argument at the hearing, after which, the court l1Tordered the curator to obtain another appraisal in an effort to ensure that the property was sold for fair market value. After considering the totality of the circumstances, the trial court determined that the sale was in the best interest of the Interdict, and granted the petition to sell the property at issue. Our review fails to show any error in the trial court’s ruling. Accordingly, this assignment of error is without merit.

Sanctions for Frivolous Appeal:

Appellees seek sanctions against appellants under La. C.C.P. art. 2164 for a frivolous appeal. The imposition of damages for a frivolous appeal is regulated by La. C.C.P. art 2164. Courts have been very reluctant to grant damages under this article as it is penal in nature and must be strictly construed. Lee v. Alton Ochsner Med. Found., 01-650 (La.App. 5 Cir. 10/17/01); 798 So.2d 1225, 1229, unit denied, 01-3094 (La.2/1/02); 807 So.2d 853, citing Guarantee Systems Const. & Restoration, Inc. v. Anthony, 97-1877 (La.App. 1 Cir. 9/25/98); 728 So.2d 398, 405, writ denied, 98-2701 (La.12/18/98); 734 So.2d 636. “In order to assess damages for a frivolous appeal, it must appear that the appeal was taken solely for delay or that appealing counsel does not sincerely believe in the view of law he advocates.” Id. While we find that appellants’ arguments are without merit, we cannot say that their arguments were presented in bad faith solely for purposes of harassment or delay. Therefore, we find that damages for a frivolous appeal are not warranted in this case.

| ^CONCLUSION

Accordingly, for the reasons stated herein, we affirm the trial court’s judgment granting appellees’ petition to sell the property of the Interdict. Additionally, we deny appellees’ request for damages for a frivolous appeal. All costs of this appeal are assessed against appellants.

AFFIRMED.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    In re ADOPTION OF B.C.F.
    No. 14-CA-108.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 24, 2014.

      Danyelle M. Taylor, Attorney at Law, Westwego, Louisiana, for Plaintiff/Appel-lee.
    Maria I. O’Byrne Stephenson, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   MARC E. JOHNSON, Judge.

12Defendant/Appellant, R.F., seeks review of the granting of an intrafamily adoption from the Juvenile Court, Parish of Jefferson, Division “B”. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

R.F. gave birth to B.C.F. on July 3, 2010. R.F. was unmarried at the time of B.C.F.’s birth. Two months after the birth of B.C.F., the paternity of her biological father, D.G., was confirmed by DNA testing. Thereafter, D.G. and R.F. developed a visitation agreement. D.G. was allowed supervised visitation; however, visitation and custody between D.G. and R.F. became contentious. The presence of a police officer was needed during the custody exchanges to maintain the peace between the parties.

On December 13, 2010, the 24th Judicial District Court confirmed D.G.’s paternity and awarded him sole provisional custody of B.C.F. R.F. was only allowed visitation at D.G.’s discretion. R.F. filed a Motion to Reconsider the custody judgment. In a consent judgment signed on January 10, 2011, D.G. and |SR.F. agreed to joint, shared custody of B.C.F. with alternating physical custody schedules. D.G. and R.F. were ordered to exchange information regarding B.C.F. in writing, specifically by email, except in emergency circumstances when they were able to communicate by telephone. R.F. was ordered to attend therapy.

D.G. filed a Rule for Contempt and a Rule to Modify Custody. A rule to show cause hearing was held on October 20, 2011. In a ruling rendered on October 21, 2011, the custody order was modified to include, among other things, that R.F. submit to random drug and/or alcohol testing. Dr. Daphne Glindmeyer was appointed as the court’s expert to conduct a custody evaluation. Additionally, it was ordered that only the biological father and biological mother could be referred to as “daddy” or “mommy,” respectively.

On November 21, 2011, D.G. filed an Ex Parte Emergency Sole Custody Motion and Motion to Modify Custody. The motions alleged R.F. was abusing alcohol and drugs and she had attempted suicide. The motions also alleged that on November 18, 2011, R.F. demanded that a police report be written to state that she was being denied visitation with B.C.F.; however, after speaking with the police officer, she realized she had the wrong visitation day. Later that day, it was alleged that R.F. was arrested for D.W.I. The matters were heard on December 14, 2011. The emergency motion was continued. In a judgment rendered on the same date, D.G. was awarded sole custody of B.C.F., pending the receipt of the court-appointed evaluator’s report and final adjudication of custody. R.F. was awarded supervised visitation at Harmony House on Wednesdays and Sundays. All of the other provisions of the October 21st judgment remained in force. A few months after D.G. was awarded sole custody, D.G. married T.G. on April 21, 2012.

On December 13, 2012, the emergency motion filed by D.G. was heard. In a consent judgment rendered on March 5, 2013, D.G. was awarded sole, domiciliary |4custody of B.C.F. R.F. was allowed regular, supervised visitation for two hours per week. R.F. was ordered to be evaluated for both inpatient and outpatient alcohol and substance abuse treatment and to attend a program specializing in the treatment of addictive disorders and comorbid psychiatric conditions. R.F. was also ordered to show evidence of continued sobriety, abstinence of narcotics, and ongoing substance abuse treatment for a period of 90 days before she would be allowed to participate in weekly visitations with B.C.F.

On September 17, 2013, T.G. filed a Petition for Intrafamily Adoption, seeking to adopt B.C.F. with the consent of D.G. The petition alleged R.F. failed to visit, communicate, or attempt to communicate with B.C.F. without just cause for a period of at least six months. The petition also alleged that the last time R.F. requested visitation with B.C.F. was on March 14, 2013, despite the fact that she had not complied or demonstrated any of the requirements, in particular the 90 days of sobriety and treatment requirement, of the March 5, 2013 judgment that would entitled her to recommence visitation. R.F. filed an Answer on October 2, 2018, denying all of the allegations set forth in the petition.

The hearing on the petition and opposition was held on November 12, 2013. At the conclusion of the hearing, the trial court granted the adoption, found the consent of R.F. to be unnecessary, and made a specific finding that the adoption by T.G. was in the best interest of the child. In a written judgment rendered on November 12, 2013, the trial court declared, for all legal purposes, B.C.F. to be the child of D.G. and T.G., ordered that B.C.F.’s named be changed to B.M.G., and order the clerk of court to comply with the requirements of La. Ch.C. art. 1182(B). The instant appeal followed that judgment.

I ^ASSIGNMENTS OF ERROR

On appeal, R.F. alleges the trial court erred in finding 1) she did not attempt to contact B.C.F. at least once during a six-month period without just cause under the provisions of La. Ch.C. art. 1245, and 2) the adoption of B.C.F. was in the child’s best interest.

LAW AND ANALYSIS

Lack of Contact

R.F. alleges the trial court erred in finding she did not attempt to contact B.C.F. at least once during a six-month period without just cause under the provisions of La. Ch.C. art. 1245. R.F. also alleges the trial court applied the La. Ch.C. art. 1245 too technically. R.F. argues that she attempted to contact B.C.F. by phone while receiving treatment, she attempted to contact B.C.F. on different occasions outside of her substance abuse treatment, and there were regular visits with B.C.F. through her family members during her treatment. R.F. avers that she simply does not meet the traditional criteria as someone uninterested in her child. R.F. contends that her past substance abuse problems should not be held against her as a reason to go forward with an adoption of B.C.F. to which she objects.

T.G. argues the trial court was correct in its finding that R.F. had not attempted to contact B.C.F. for a period of, at least, six months. T.G. avers that R.F. had not visited B.C.F. for more than a year at the time of the hearing. T.G. further avers that R.F. made no requests for visitation during the six-month period from March 14, 2013 until the filing of the Petition for Adoption on September 17, 2013; and, R.F. failed to attempt contact with B.C.F., even after she had become 90 days sober during that time frame.

Unless the parental rights have been terminated in accordance with law, consent to an adoption of a child or relinquishment of parental rights shall be | (¡required of the mother of the child. La. Ch.C. art. 1193(1). The required consent of a parent to an intrafamily adoption may be dispensed with upon proof by clear and convincing evidence of certain required elements at the hearing on the petition for and opposition to the adoption. La. Ch.C. art. 1245(A). When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction and the other parent has refused or failed to visit, communicate, or attempt to communicate with the child with the child without just cause for a period of at least six months, the consent of the other parent may be dispensed of in an intrafamily adoption. La. Ch.C. art. 1245(C)(2). To find “just cause,” a parent’s failure to visit or communicate with his/her child must be due to factors beyond his/her control. In re Morris, 39,523 (La.App. 2 Cir. 1/26/05); 892 So.2d 739, 743.

“The petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence.” La. Ch.C. art. 1035(A). “To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable; that is much more probable than its nonexistence.” In re Intra Family Adoption of A.G.T., 06-805 (La.App. 5 Cir. 3/13/07); 956 So.2d 641, 648, writ denied, 07-0783 (La.5/4/07); 956 So.2d 611, citing In re Bourgeois, 04-1466 (La.App. 5 Cir. 4/26/05); 902 So.2d 1104, 1108. The court is to hear and take into consideration information from all sources concerning the intrafamily adoption. In re C.E.M., III, 09-787 (La.App. 5 Cir. 1/26/10); 31 So.3d 1138, 1143-44. When factual findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard of review demands great deference to the trier of fact’s findings, because only the trier of fact can be aware of the variations in demeanor 17and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. In re Intra Family Adoption of A.G.T., supra.

At the hearing in the instant matter, D.G. testified that R.F. appeared to be under the influence during the custody exchanges because she was irate in some ways and was slurring her words. D.G. stated R.F. had missed visits on appointed days at the designated location, Harmony House, and had the police attempt to enforce a visitation on the wrong day. D.G. explained that R.F.’s attorney would email requests to meet at Harmony House, but there would be no appointment reserved for the visitation. After R.F.’s attorney sent an email notifying his attorney that R.F. was cancelling the scheduled visitations at Harmony House until further notice, he did not receive any further notice that R.F. had re-enrolled for visitation services at Harmony House. He testified that the last time R.F. requested to see or have contact with B.C.F. was on March 13 or 14, 2013. D.G. acknowledged that his attorney asked him to bring B.C.F. to Grace House, R.F.’s drug rehabilitation center, for a supervised visit in March 2013, but he declined to do so because it was not in conformity with R.F.’s 90-day sobriety and treatment requirement of the March 5, 2013 judgment. D.G. further testified that B.C.F. was in a final, stable home with him and T.G. as a family, and they provided everything for B.C.F. D.G. stated that he would like for B.C.F. to know her biological mother and grandparents and would encourage a relationship between them, in the event the adoption would be granted.

T.G. testified that she did everything for B.C.F. that a mother would do, e.g., bathe her, feed her, brush her teeth, and take her to school and to the doctor. T.G. stated that she became a stay-at-home mom for her son and B.C.F. after D.G. was awarded sole custody of B.C.F. T.G. said B.C.F. started to call her “mommy” on her own and without any influence from either T.G. or D.G. T.G. testified that RB.C.F. was being raised in a stable home. T.G. stated R.F. requested visitation with B.C.F. on March 14, 2013 but did not request visitation again until after the Petition for Intrafamily Adoption had been filed. T.G. averred B.C.F. had not spent a night with R.F. since October 2011. T.G. attested that she would definitely preserve the relationship between B.C.F. and R.F.

R.F. testified that she enrolled herself in a drug rehabilitation program and was admitted to the Grace House on October 5, 2012. She relapsed in December 2012 and January 2013. R.F. stated that she re-enrolled in Grace House and had been sober since February 18, 2013. R.F. explained that she did not complete the last phase of her treatment at Grace House, which was against medical advice, because she decided to obtain her own housing versus going to one of the transitional houses offered. R.F. testified as to the successful progress of her sobriety through enrollment in substance abuse programs and appointments with psychiatrists.

R.F. asserted that she did not have direct contact with B.C.F. from October 2012 through the time of the hearing because the judgment did not allow her to call, email, or have any other contact with T.G., D.G., B.C.F., or anyone else in their family. R.F. admitted she was arrested for DWI and child desertion in November 2012, but the child desertion charge was dismissed. R.F. stated that as part of her recovery, she accepted responsibility for her past mistakes and was working to do “the next right thing” to rebuild the broken relationships in her life. R.F. expressed her wishes to positively contribute to B.C.F.’s life. In addition to her testimony, R.F. presented the testimonies of L.W., a program counselor, and K.K., her sponsor, to attest to her successful sobriety.

In the Reasons for Judgment, the trial court found that B.C.F. had not seen her natural mother in over a year, and R.F. failed to take the necessary steps to |3commence visitation with her daughter for over six months. The trial court reasoned that the March 5, 2013 consent judgment was clear that R.F. had to demonstrate continued sobriety for ninety (90) days before she would be allowed to commence visitation again with B.C.F., which was one of the terms put in place to protect B.C.F. The trial court stated that R.F. requested one visit on March 14, 2013, in violation of the consent judgment, and then did not request another visit until more than six months later. The trial court noted that no evidence was provided to show proof that R.F. requested to D.G. or T.G. to have any phone conversations with B.C.F. The trial court held that pursuant to La. Ch.C. art. 1245, R.F. failed to visit, communicate, or attempt to communicate with B.C.F. for six months without just cause.

After review of the evidence admitted, we find T.G. proved by clear and convincing evidence that R.F. refused or failed to visit, communicate, or attempt to communicate with B.C.F. without just cause for a period of, at least, six months. Both T.G. and D.G. testified that the last time R.F. attempted to schedule visitation with B.C.F. was on or about March 14, 2013. The email exchanges between the parties’ attorneys show there was a request from R.F. to visit with B.C.F. at Grace House, but D.G. refused the visit because R.F. had not complied with the consent judgment. The next email from R.F. requesting visitation was not sent until September 26, 2013, after the petition had been filed. Although it was argued by R.F. that she requested phone communication with B.C.F., there was no evidence of that attempt presented to the trial court. R.F. failed to present evidence that her failure to communicate with B.C.F. was beyond her control.

Therefore, due to the clear and convincing evidence presented by T.G., we do not find the trial court erred in finding R.F. refused or failed to visit, 110communicate, or attempt to communicate with B.C.F. without just cause for a period of, at least, six months.

Best Interest of Child

R.F. alleges the trial court erred in finding her consent was not required and the adoption of B.C.F. was in the child’s best interest. R.F. argues that the best interest of B.C.F. is to have her natural parent-child relationship intact. R.F. maintains that she wishes to have a relationship with B.C.F. in the future and severance of that relationship is not in B.C.F.’s best interest.

T.G. argues the trial court acted in the best interest of B.C.F. by granting the adoption, and its ruling is supported by ample evidence and testimony in the record. T.G. contends that R.F. had not had an overnight visit with B.C.F. since November 2011, when B.C.F. was only one year old, and had frequently missed exercised supervised visitation until she eventually terminated her weekly supervised visitation at Harmony House without any explanation. Since B.C.F. had lived with T.G. and D.G. for most of her life, T.G. further contends that she, as a stepmother, was the person to love, feed, clothe, play with and teach B.C.F. T.G. claims that B.C.F. has no recollection of any mother other than her; and by following social cues, B.C.F. started to call her “momma.” T.G. asserts that, under the facts of this case, it has been proven that 1) no natural parent-child relationship existed between R.F. and B.C.F., 2) R.F. was indifferent about B.C.F.’s well-being, and 3) R.F.’s visits with B.C.F. had been sporadic and inconsistent.

As mentioned earlier, T.G. proved by clear and convincing evidence that R.F. had no contact with B.C.F. for, at least, six months. Consequently, because the evidence presented showed that R.F. failed or refused to visit, communicate, or attempt to communicate with B.C.F. without just cause from March 14, 2013 to ^September 26, 2013, we find that R.F.’s consent to the intrafamily adoption was properly dispensed of by the trial court pursuant to La. Ch.C. art. 1245(C)(2).

Even upon a finding that a parent has lost his/her right to consent to the adoption, the adoption should only be granted when it is also found to be in the best interest of the child. In re Intrafamily Adoption of L.M.C., 09-885 (La.App. 5 Cir. 3/23/10); 39 So.3d 643, 647. The court is to hear and take into consideration information from all sources concerning the intrafamily adoption. In re C.E.M., III, supra. When the court has granted custody to the child’s parent married to the stepparent petitioner, there shall be a re-buttable presumption that the adoption is in the best interest of the child. La. Ch.C. art. 1225(B); In re Intra Family Adoption of A. G.T., 956 So.2d at 647. The determination of whether an adoption is in the best interest of the child must be decided in each case on its own facts and is subject to the vast discretion of the trial judge. In re Intrafamily Adoption of L.M.C., supra. The trial court’s discretion is not absolute, and a determination of best interest is subject to reversal if the record reveals manifest error in the determination. In re Intra Family Adoption of A.G.T., 956 So.2d at 648.

In the case at bar, the trial court in this matter found that it was clearly in the best interest of B.C.F. that T.G. adopt her. The trial court stated that B.C.F. was three years old, and she had not seen her mother in over a year or for a third of her life; therefore, the trial court could not say that B.C.F. would even recognize her biological mother. The trial court also noted that it was troubled by the fact that R.F. had not sought treatment for her borderline personality disorder, which was in violation of the March 5, 2013 consent judgment. The trial court cited the custody evaluator’s notes that “R.F.’s diagnosis of borderline personality disorder appears to be the predominate mental health issue undermining her ability to maintain adequate stability in every day functioning,” and her “psychiatric and emotional | tissues appear to significantly limit her insight and judgment [and] as such, her parenting ability is significantly compromised by limited insight and judgment, as well as erratic, unstable and impulsive behavior.” The trial court found the testimonies of T.G. and D.G. to be of importance because they attested they would support and foster a relationship between R.F. and B.C.F. The trial court also found that T.G. had been a wonderful mother to B.C.F., and T.G. and D.G. had provided a loving, stable and nurturing home for B.C.F.

After review of the record, we find R.F. failed to rebut the presumption that the adoption by T.G. of B.C.F. was in B.C.F.’s best interests. The evidence presented to the trial court indicated T.G. had been a more prominent and positive parental figure in B.C.F.’s life than R.F. had been. Therefore, we cannot find the trial court was manifestly erroneous in its determination that the adoption was in the best interest of B.C.F., and subsequently, granting the intrafamily adoption.

DECREE

For the foregoing reasons, we affirm the intrafamily adoption of B.C.F.

AFFIRMED.

      . In accordance with Uniform Rules — Courts of Appeal, Rules 5-1 and 5-2, we will use initials throughout the opinion to identify the parties to ensure the privacy of the minor child in this adoption case.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana v. Donte RILEY.
    No. 14-KA-98.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 24, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Shannon K. Swaim, Assistant District Attorneys, Gretna, Louisiana, for Ap-pellee, The State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Appellant, Donte Riley.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   SUSAN M. CHEHARDY, Chief Judge.

| ^Defendant pled guilty to attempted second degree murder and argues on appeal that his guilty plea is constitutionally infirm on account of the trial court’s failure to advise him that his guilty plea would result in a sentence of imprisonment at hard labor. For the reasons that follow, we affirm defendant’s conviction and sentence.

Facts and Procedural History

Because defendant pled guilty and did not proceed to trial, the facts were gathered from the bill of information, wherein the State alleged that on or about May 12, 2012, defendant attempted to commit second degree murder of a known juvenile (D.O.B. 2/23/1996).

On June 8, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant, Donte Riley, with attempted second degree murder in violation of La. R.S. 14:30.1 and La. R.S. 14:27. After initially pleading not guilty to the charge, defendant withdrew this plea and pled guilty as charged. Defendant was sentenced to imprisonment at hard labor for thirty years without ^benefit of parole, probation, or suspension of sentence. On December 4, 2013, the trial court granted defendant’s motion for an out-of-time appeal.

Discussion

In defendant’s sole assignment of error, he argues that his guilty plea is constitutionally infirm on account of the trial court’s failure to advise him that his guilty plea would result in a sentence of imprisonment at hard labor. He contends that the trial court’s advice that his sentence would be for a term of years “in jail” misled him to believe he would serve his sentence in the Jefferson Parish Correctional Center, and not the Dixon Correctional Institute, where he is currently incarcerated. Defendant argues this violated his rights to due process and the statutory requirements of La.C.Cr.P. art. 556.1. For this reason, defendant requests his guilty plea be set aside and his sentence vacated.

A guilty plea normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects by either appeal or post-conviction relief. State v. Howard, 11-1155 (La.App. 5 Cir. 5/22/12), 91 So.3d 564, 569, writ denied, 12-1826 (La.3/1/13), 108 So.3d 787. Additionally, once a defendant has been sentenced, only those guilty pleas which are constitutionally infirm may be withdrawn by appeal or post-conviction relief. Id. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id.

A guilty plea will not be considered free and voluntary unless, at the very least, the defendant was advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. State v. Nuccio, 454 So.2d 93, 104 (La.1984). There also must be an express and knowing waiver of these rights, and the waiver must be on the record, which must unequivocally show that the waiver was free and voluntary. Id. While a colloquy between the judge and defendant is the preferred method of proof of a free and voluntary waiver, the colloquy is not indispensable when the record contains some other affirmative showing of proper waiver. Id.

Furthermore, Boykin only requires that a defendant be informed of the three rights enumerated above. Id. Boy-kin’s scope has not been expanded to include advice with respect to sentencing. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158, 1164. Consequently, when the record establishes that an accused was informed of and waived his rights to trial by jury, to confront his accusers, and against self-incrimination, the burden shifts to the accused to prove that despite this record his guilty plea was involuntary. State v. Harrell, 09-364 (La.App. 5 Cir. 5/11/10), 40 So.3d 311, 321, writ denied, 10-1377 (La.2/10/12), 80 So.3d 473.

In addition to advising a defendant of his three Boykin rights, La.C.Cr.P. art. 556.1(A)(1) mandates that a court cannot accept a felony guilty plea “without first addressing the defendant personally in open court and informing him of, and determining that he understands ... [t]he nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.”

The failure to fully comply with Article 556.1 is a statutory breach, rather than a constitutional breach, and thus, the defendant is required to show prejudice as a result of the error. State v. Ott, 12-111 (La.App. 5 Cir. 10/16/12), 102 So.3d 944, 952. Therefore, violations of La.C.Cr.P. art. 556.1 that do not rise to the level of a constitutional Boykin violation are subject to harmless error analysis. Howard, supra at 570. To determine whether a violation of La.C.Cr.P. art. 556.1 |5is harmless, the proper inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty. Id.

In the instant case, the record reflects that defendant completed a waiver of rights form with the assistance of his attorney, in which he indicated that he understood by entering a guilty plea he was waiving his rights against self-incrimination, to a trial by jury, and to confront his accusers. Defendant also indicated in this form that he understood his sentence would be thirty years “with the Dept, of Corrections.”

At the plea colloquy, the trial judge personally addressed defendant in open court and ascertained that he had reviewed the waiver of rights form with his attorney. The trial judge then reviewed the form with defendant to ensure his understanding of his guilty plea. The judge advised defendant of his rights against self-incrimination, to a trial by jury, and to confront his accusers. He advised defendant of the nature of the crime to which he was pleading guilty, i.e., attempted second degree murder. The judge further advised defendant that the minimum sentence was ten years “in jail” and the maximum was fifty years “in jail.” Defendant replied that he understood this.

Defendant indicated that no one had used force, coercion, intimidation, or promises of reward to obtain his guilty plea. He admitted that on May 12, 2012, he had attempted to commit second degree murder of a known juvenile (D.O.B. 2/23/96) and that he was pleading guilty because he was in fact guilty. The trial judge accepted defendant’s guilty plea, finding that defendant was aware of the nature of the crime, that he understood the consequences of his guilty plea, and that |fihis plea was knowing, free, and voluntary. After a victim impact statement, the trial coui't, taking into consideration defendant’s age of seventeen and the seriousness of the offense, sentenced defendant to thirty years “with the Department of Corrections” without benefit or parole, probation, or suspension of sentence. After denying defendant’s request for leniency, the court reiterated the sentence of thirty years “at hard labor” without benefits. At no time did defendant raise an objection to the hard labor aspect of his sentence.

Under similar circumstances, this Court has rejected challenges to guilty pleas on the basis of inadequate advice regarding sentencing matters. For instance, in State v. Shelton, 09-713 (La.App. 5 Cir. 3/9/10), 39 So.3d 601, 605, unit denied, 10-839 (La.11/5/10), 50 So.3d 812, the defendant argued that she should be allowed to withdraw her guilty plea because she was unaware prior to entering her plea that the law required that the first two years of her sentence be served without benefit of parole, probation, or suspension of sentence. This Court found that the defendant’s plea was knowing and voluntary and that there were no constitutional grounds upon which to allow a withdrawal of her guilty plea. Id. at 606. In reaching this conclusion, this Court relied on several factors.

First, although the waiver of rights form did not specifically state that the seven-year sentence to which the defendant agreed would be without statutory benefits as to the first two years, the form did state that the restrictions were part of the thirty-year maximum sentence allowed under the applicable statute. Id. at 605. Second, the defendant received a favorable plea bargain: she received a substantially shorter sentence than the maximum allowed and the State agreed not to file a habitual offender bill. Id. And third, the record showed that the defendant had been thoroughly advised of her Boykin rights by both the court and her attorney. Id. at 605-06.

17Likewise, in State v. Harrell, 09-364 (La.App. 5 Cir. 5/11/10), 40 So.3d 311, writ denied, 10-1377 (La.2/10/12), 80 So.3d 473, the defendant argued his guilty plea was not knowing and voluntary because the trial court failed to advise him that the first five years of his sentence was to be without benefits. This Court rejected this argument, noting that the trial court had advised the defendant of his Boykin rights, the defendant had indicated his willingness to plead guilty throughout the plea colloquy, the defendant acknowledged that he had discussed the guilty plea with his attorney, and that he received a substantial benefit for pleading guilty. Harrell, 40 So.3d at 324.

In the instant case, the record reflects that defendant was advised of his Boykin rights by both his attorney and the trial court. Defendant indicated he understood these rights and that he waived them by pleading guilty. He expressed a willingness to plead guilty throughout the plea colloquy and received a favorable plea bargain with less than the maximum sentence.

Additionally, defendant was advised in his waiver of rights form and by the trial judge in open court that he was pleading guilty to a felony, which is defined as an offense punishable by death or imprisonment at hard labor. See La. R.S. 14:2(A)(4); La.C.Cr.P. art. 933(3). Defendant also indicated in his waiver of rights form that he understood his sentence would be thirty years “with the Dept, of Corrections,” a sentence which La. R.S. 15:824(0(1) reserves only for those “individuals actually sentenced to death or confinement at hard labor.”

Under these circumstances, we cannot find that defendant unknowingly and involuntarily pled guilty to the offense of attempted second degree murder. Additionally, we have reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920. Our review reveals no errors that require corrective action.

18For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . It is noted that defendant’s date of birth is September 17, 1995. He was sixteen years old at the time of the offense.

      . Defendant pled guilty to attempted second degree murder which is punishable by imprisonment at hard labor for not less than ten nor more than fifty years without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:30.1(B); La. R.S. 14:27(D)(l)(a).


text:
    STATE of Louisiana v. Charles GROSS.
    No. 14-KA-110.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 24, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet L. Clark, Assistant District Attorneys, Gretna, Louisiana, for Appellee, The State of Louisiana.
    Margaret S. Sollars, Attorney at Law, Thibodaux, Louisiana, for Appellant, Charles Gross.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   SUSAN M. CHEHARDY, Chief Judge.

|20n appeal, defendant challenges his conviction for possession with intent to distribute marijuana. For the following reasons, we affirm defendant’s conviction and sentence.

Procedural history

On May 13, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant, Charles Gross, with possession with intent to distribute marijuana, in violation of La. R.S. 40:966A. On May 28, 2013, defendant was arraigned and pled not guilty. Defendant filed pretrial motions to suppress evidence and his statement, which were heard and denied on October 24, 2013.

Trial before a twelve-person jury commenced on October 30, 2013. On October 31, 2013, the jury found defendant guilty as charged.

On November 12, 2013, the trial judge denied defendant’s Motion for New Trial and Motion for Post-Verdict Judgment of Acquittal. That same day, the trial court sentenced defendant to “fifteen years with the Department of Corrections.”

Immediately thereafter, the State filed a multiple offender bill of information, alleging that defendant was a second felony offender. Defendant | astipulated to the multiple bill, which the trial judge accepted. Thereafter, the trial court vacated defendant’s original sentence and, pursuant to La. R.S. 15:529.1, imposed an enhanced sentence of “fifteen years in the Department of Corrections.” After his re-sentencing, defendant filed a Motion for Appeal, which was granted by the trial court. The instant appeal follows.

Facts

Detective Randy Picarella of the Jefferson Parish Sheriffs Office Narcotics Division testified that he had received two complaints concerning illegal narcotics sales from a specific apartment in the complex located at 4700 Jefferson Highway. During his shift on the evening of April 10, 2013, Detective Picarella parked across the street in his unmarked police vehicle and conducted surveillance of the apartment complex.

During his surveillance, he observed a grey sedan pull into the complex’s parking lot followed by a second vehicle, which parked next to the first vehicle. The driver of the grey sedan exited his vehicle, approached the passenger side of the second vehicle, and engaged in a brief conversation with an occupant of the second vehicle. Next, the driver of the grey sedan went into the “lobby” of the apartment complex and up a flight of stairs to the second floor.

After about one minute, the driver of the grey sedan exited the door to the complex, approached the passenger side of the second vehicle, and reached his right hand into the second vehicle. Almost immediately, the driver of the grey sedan returned to his vehicle and both drivers quickly left the apartment complex.

Detective Picarella, who was “close enough to see with the naked eye” and had an unobstructed view of the vehicles, testified that, although he could not see inside the vehicles, he suspected that the man in question was conducting a hand-to-hand drug transaction with an occupant of the second vehicle.

|4Based on his suspicion, Detective Pi-carella followed the driver of the grey sedan for a short period of time while running a computer check of the vehicle’s license plate. As a result of the computer search, Detective Picarella learned that the vehicle was registered to Charles Gross.

After a short period of time, Detective Picarella stopped the grey sedan by activating the lights and sirens on his unmarked police vehicle. Detective Picarel-la, who was dressed in plain clothes with his badge and weapon displayed, approached the vehicle, explained that he was conducting a narcotics investigation, and asked the driver to exit his vehicle.

As Detective Picarella spoke with the driver about his route and destination that evening, Detective Picarella found that defendant was not truthful about his actions earlier that evening. When confronted with the inconsistencies of his account, the driver became visibly nervous, which prompted Detective Picarella to pat him down. Detective Picarella did not discover any weapons on the driver. Eventually, the driver admitted that he had been at the apartment complex located at 4700 Jefferson Highway to meet a “girlfriend.” By this time, Detective William Meetze had arrived at the location where the driver was stopped.

When Detective Picarella asked the driver for consent to search his vehicle, he agreed, stating, “Sure, go ahead, I don’t have anything in there.” Detective Meetze searched the backseat of the vehicle and found a large, clear, plastic bag holding fourteen smaller, clear, plastic bags that each contained a leafy, green, vegetable matter. The substance field-tested positive for marijuana. Further, the marijuana and its packaging weighed twenty-seven grams, which is slightly less than one ounce.

At that point, Detective Picarella advised defendant he was under arrest, placed him in handcuffs, and read him his constitutional rights pursuant to Is Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Almost immediately thereafter, defendant explained that he was having trouble finding employment, so he was selling marijuana to make money. He further admitted that he was at the apartment complex located at 4700 Jefferson Highway to sell a bag of marijuana to a man named “Steve.”

Sergeant Elvin Módica of the Jefferson Parish Sheriffs Office Narcotics Division, who was qualified as an expert in the manufacturing, packaging, and distribution of street-level narcotics, testified that the manner in which this marijuana was packaged — one large bag containing fourteen smaller plastic bags — is consistent with “someone who possessed it with the intent to distribute it.” He explained that, although an ounce of marijuana could be for personal use, carrying fourteen individual plastic bags is not consistent with personal use.

Sergeant Módica further stated that people that possess marijuana for personal use would typically have some paraphernalia, i.e., a pipe or papers, to enable them to ingest the marijuana. Finally, Sergeant Módica stated that the street price for one ounce, or 28 grams, of marijuana is between $30.00 and $50.00. He noted, however, that if the ounce is broken down into fourteen two-gram bags, and sold for $10.00, the seller could realize a profit of $90.00 to $110.00.

After hearing the testimony and evidence, the jury, by a vote of 10-2, found defendant guilty as charged of possession with intent to distribute marijuana.

Law and Argument

On appeal, defendant raised two assignments of error: first, the trial court erred by not granting the defense motions to suppress the statement and evidence after the illegal arrest of Mr. Gross, and second, the trial court erred by not granting a mistrial after an expert witness was allowed to testify as to the ultimate issue of guilt.

|fiIn his first assignment of error, defendant argues that the trial court erred in denying his motion to suppress his statement and the evidence. He contends that Detective Picarella lacked reasonable suspicion to stop and detain him. He maintains that his actions at the apartment complex, without any further corroboration of criminal activity specific to him, did not justify the alleged investigatory stop. The State responds that Detective Picarella had reasonable suspicion to initiate an investigatory stop because he had corroborated the information from two anonymous tips and had observed activity by the subject analogous to a hand-to-hand drug transaction.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. As a general rale, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. State v. Payne, 10-46 (La.App. 5 Cir. 1/25/11), 59 So.3d 1287, 1295, writ denied, 11-0387 (La.9/16/11), 69 So.3d 1141. A search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. Warren, 05-2248 (La.2/22/07), 949 So.2d 1215, 1226.

At a suppression hearing, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. La.C.Cr.P. art. 703(D). The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside, unless there is an abuse of discretion. State v. Hunt, 09-1589 (La.12/01/09), 25 So.3d 746, 752. In reviewing the trial court’s ruling on a motion to suppress, the appellate court may consider the evidence at the motion hearing and at trial. State v. Imbraguglio, 08-64 (La.App. 5 Cir. 5/27/08), 987 So.2d 257, 264.

17Louisiana and federal law clearly allow a police officer to conduct a brief investigatory stop when the officer has a reasonable articulable suspicion of criminal activity. La.C.Cr.P. art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Under the Terry standard, as codified in La.C.Cr.P. art. 215.1, police officers may stop a person in a public place who they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions. State v. Sam, 08-220 (La.App. 5 Cir. 6/19/08), 988 So.2d 765, 769.

An investigatory stop requires reasonable suspicion of criminal activity. State v. Boss, 04-457 (La.App. 5 Cir. 10/26/04), 887 So.2d 581, 585. “Reasonable suspicion” is something less than probable cause to arrest and requires that police officers have sufficient knowledge of facts and circumstances to justify an infringement of the individual’s right to be free from government interference. State v. Chauvin, 06-362 (La.App. 5 Cir. 10/31/06), 945 So.2d 752, 757-58. Absent reasonable suspicion, an investigatory stop is illegal and the evidence seized as a result is suppressible. State v. Boss, supra.

The determination of reasonable grounds for an investigatory stop does not rest upon the officer’s subjective beliefs or attitudes, but is dependent on an objective evaluation of all the circumstances known to the officer at the time of his challenged action. State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879, 880 (per curiam). In considering whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences that he is entitled to draw from the facts in light of his experience. State v. Sam, supra.

|rA reviewing court must take into account the totality of the circumstances, giving deference to the inferences and deductions of a trained police officer that might elude an untrained person. An officer’s experience, his knowledge of recent criminal patterns, and his knowledge of an area’s frequent incidence of crimes are factors that may support reasonable suspicion for an investigatory stop. State v. Sam, 988 So.2d at 769-70.

Tips provided to police by confidential informants can supply sufficient reasonable suspicion to conduct an investigatory stop under certain circumstances. An informant’s past record for accuracy and reliability is a factor taken into account when determining the reliability of the tip in question. State v. Austin, 04-993 (La.App. 5 Cir. 3/1/05), 900 So.2d 867, 879, writ denied, 05-830 (La.11/28/05), 916 So.2d 143.

An informant’s tip must also be corroborated by the police. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). If an informant’s tip accurately predicts the offender’s future behavior, it gains an additional modicum of reliability. Id. Predictive ability is not always necessary; a non-predictive tip coupled with police corroboration or independent police observation of suspicious activity can provide the police with the requisite reasonable suspicion to detain a suspect. State v. Francois, 04-1147 (La.App. 5 Cir. 3/29/05), 900 So.2d 1005, 1010.

The relevant inquiry is whether Detective Picarella had reasonable suspicion or “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant[ed]” the stop of defendant. See Terry, 392 U.S. at 21, 88 S.Ct. at 1880.

In State v. Fearheiley, 08-307 (La.4/18/08), 979 So.2d 487 (per curiam), the Louisiana Supreme Court found that a police officer’s observation of an apparent |abrief hand-to-hand transaction inside a vehicle gave rise to reasonable suspicion for an investigatory stop because the officer was not “required to turn a blind eye to the circumstances and ignore what two years of experience in narcotics investigations ... had taught him, that in the narcotics trade ‘when it’s done outside, it’s done very fast and from one hand to the next.’ ”

This Court has also found that a police officer had reasonable suspicion to justify an investigatory stop when that officer observed a defendant engage in a perceived hand-to-hand transaction. See, State v. Johnson, 10-209 (La.App. 5 Cir. 10/12/10), 52 So.3d 110, 117-20, unit denied, 10-2546 (La.4/1/11), 60 So.3d 1248; State v. Sam, supra; State v. Flagg, 99-1004 (La.App. 5 Cir. 4/25/00), 760 So.2d 522, 527, writ denied, 00-1510 (La.3/9/01), 786 So.2d 117; State v. White, 98-91 (La.App. 5 Cir. 6/30/98), 715 So.2d 714, 716, unit denied, 98-2043 (La.11/25/98), 729 So.2d 577.

In the instant case, Detective Picarella was conducting surveillance for narcotics trafficking on an apartment complex that defendant visited when Detective Picarella observed defendant conduct what appeared to be a hand-to-hand drug transaction then exit the area quickly. Considering the totality of the circumstances, we find no error in the trial judge’s finding of reasonable suspicion sufficient for an investigatory stop.

Next, we turn to whether the evidence seized and statement obtained subsequent to the stop were lawfully attained. It is well-settled in federal and state jurisprudence that police officers may seize contraband detected during the lawful execution of an investigatory stop. State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 71, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118. One such tool of detection is a search pursuant to consent. Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Oral consent is | insufficient. State v. Ossey, 446 So.2d 280, 287 n. 6 (La.1984), cert. denied, 469 U.S. 916,105 S.Ct. 293, 83 L.Ed.2d 228 (1984).

Consent to search is an exception to the warrant requirement when it is freely and voluntarily given by a person who possesses authority or other sufficient relationship to the premises or other effects sought to be inspected. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Edwards, 97-1797 (La.7/2/99), 750 So.2d 893, 901, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999); State v. Gomez, 01-717 (La.App. 5 Cir. 11/27/01), 802 So.2d 914, 918. The Louisiana Supreme Court (quoting Florida v. Jimeno, 500 U.S. 248, 250-51, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991)) has commented, “ ‘[W]e have long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so.’ ” State v. Huynh, 08-1628 (La.11/10/08), 993 So.2d 1198 (per curiam).

When the State relies on consent to justify a warrantless search, it has the burden of proving the consent was given freely and voluntarily. State v. Gibson, 97-1203 (La.App. 5 Cir. 3/25/98), 708 So.2d 1276, 1280. Voluntariness is a question of fact to be determined by the trial judge under the totality of the circumstances. Edwards, supra; Gibson, at 1281.

Here, Detective Picarella testified that defendant consented, when asked, to the search of his vehicle. Detective Meetze stated that he heard defendant consent to the search of his vehicle. Pursuant to the search, Detective Meetze discovered marijuana and defendant was placed under arrest. Following his arrest, defendant waived his rights, agreed to speak with Detective Picarella, and made an inculpa-tory statement.

Although defendant testified at the suppression hearing that he did not give consent to search his vehicle and that he was not read his Miranda rights, the trial _[i¡court in its reasons for denying defendant’s motions to suppress stated “this Court is left with making a credibility call between the defendant who has some six prior felony convictions and two Jefferson [Parish] Sheriffs deputies. The Court finds the deputies[’] testimony to be more credible.”

When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference and may not overturn those findings unless there is no evidence to support those findings. State v. Lewis, 12-902 (La.App. 5 Cir. 6/27/13), 121 So.3d 128, 134, writ denied, 13-1296 (La.4/17/14), 138 So.3d 618. We find that there is sufficient evidence to support the trial court’s finding.

In view of the foregoing, we find no error in the trial court’s ruling denying defendant’s motion to suppress evidence and statement. This assignment of error lacks merit.

In his second assignment of error, defendant argues that he was denied a fair trial when his motions for mistrial were denied and Sergeant Módica was permitted to testify to the facts in this case and express his opinion as to the ultimate issue of guilt, in violation of La. C.E. art. 704.

La. C.E. art. 704 provides that “... in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.” This prohibition applies even if the opinion is solicited through the presentation of a hypothetical situation. State v. Deal, 00-0434 (La.11/28/01), 802 So.2d 1254, 1261, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002).

When a witness makes an irrelevant remark that might prejudice the defendant, La.C.Cr.P. art. 771 gives the trial court the option to either admonish the jury or, if an admonition does not appear to be sufficient, to declare a mistrial. Instate v. Ducre, 01-2778 (La.9/13/02), 827 So.2d 1120 (per curiam). Mistrial is a drastic remedy, which should be used only upon a clear showing of prejudice by the defendant; a mere possibility of prejudice is not sufficient. Id. A trial judge has broad discretion in determining whether conduct is so prejudicial as to deprive an accused of a fair trial. Id.

At trial, Sergeant Módica was accepted as an expert in the field of manufacturing, packaging, and distribution of street level narcotics. During Sergeant Modica’s testimony, the prosecutor showed him the plastic bag of marijuana seized from defendant’s vehicle and asked Sergeant Módica if he had ever seen marijuana packaged in the same manner. Sergeant Módica responded that marijuana packaged in that manner “would be indicative of someone who possessed it with the intent to distribute it.” Defense counsel objected unsuccessfully on the basis that Sergeant Módi-ca was rendering an “ultimate conclusion.”

Sergeant Módica went on to explain that generally, marijuana is broken down into small amounts and packaged in separate bags because “they plan to resell it.” The State continued:

PROSECUTOR: Would it be consistent with an individual user to be found in a vehicle with 14 individually wrapped bags, in your opinion?
SGT. MODICA: In my opinion, if he was — if these bags were for personal use, you’d only need one or two, whatever you planned on consuming at that point you left your home or wherever you went, however much you planned on consuming. You wouldn’t bring everything you had with you—
DEFENSE: Objection, again, Your Honor, speaking to the ultimate issue.
THE COURT: Overruled.
PROSECUTOR: You can continue.
| irSGT. MODICA: Someone traveling in a vehicle like that, it’s just not common to see them take everything they have with them to travel with, unless, it’s a case of you’re bringing it with you, someone who possesses with the intent gets a phone call or something happens that somebody wants to purchase something, well, they have it ■with them. It’s readily available ...

Sergeant Módica then testified that those who possess marijuana for personal use only are commonly found in possession of “some sort of smoking devices to consume it,” to which the State responded:

PROSECUTOR: Are you familiar with the fact that on April 10th, of 2013, Mr. Gross was found with this marijuana. He was not found with anything like that, any pipes, papers, bongs, cans—

Defense counsel objected and moved for a mistrial on the basis that the State was not posing the questions in the form of a hypothetical, and Sergeant Módica was drawing conclusions that were reserved for the jury relative to defendant’s guilt or innocence. The trial court denied the motion for mistrial and the State continued:

PROSECUTOR: Sergeant Módica, if I were to tell you that Mr. Gross was not found with anything that you just described, any papers, bongs or even aluminum cans, would that be consistent or inconsistent with an individual user?
SGT. MODICA: That would be inconsistent with an individual user.
DEFENSE: Please note my standing objection to this testimony, Judge.

The State then presented Sergeant Mó-dica with a photograph of the apartment complex where defendant was seen prior to his arrest and proceeded to pose a “hypothetical” that tracked the specific facts of this case that was previously adduced from the arresting officers’ trial testimony. Specifically, the State relayed the exact information gained by Detective Pi-carella during his surveillance of the apartment complex and asked Sergeant Módica whether those facts were | u significant based on his experience in street level narcotics distribution. Sergeant Módica testified that based on the facts presented, he would suspect that “maybe a street level drug transaction went down.”

Prior to cross-examination, defense counsel again moved for a mistrial under “State v. Gibson, State v. Evans, and State v. Hollins,” arguing that an expert is limited to formulating an opinion based on hypotheticals and is not permitted to make “ultimate conclusions” based on the specific facts of the case. The trial court again denied the motion for mistrial.

On cross-examination, in response to defense counsel’s question regarding the possibility that less than an ounce of marijuana found in individual bags could be for personal use, Sergeant Módica testified, “When I see this many bags, it’s indicative of a possession with intent case.” Following cross-examination, the following transpired during the State’s redirect:

PROSECUTOR: You said before to one of Ms. Bourg’s questions that 14 baggies like that borderline possession versus possession with intent to distribute, is that based only on looking at those baggies themselves, or is it also based on the other sort of factors?
SGT. MODICA: No, sir, that would be strictly if, like I said, we were in a vacuum and there was no other factors to go with anything, one may be able to argue that it was a possession. But in that vacuum, if I had to make a decision what this was, this would be a possession with intent to distribute case because not only these bags alone would tell me that somebody took the time and the effort to take a larger amount and make it into a smaller amount, which I don’t need any other factors to tell me that that happened. I know that happened some kind of way. But in that vacuum if only we had that, someone might be able to argue that it was just strictly a possession, if you had nothing else to base it on.
PROSECUTOR: Um-hum.
SGT. MODICA: I mean definitely not because of the way it’s packaged or the amount, I’m just saying someone might be able to argue if you have no other factors to support something.

| i,r,(Emphasis added.)

On appeal, defendant contends that this testimony was equivalent to a direct statement by Sergeant Módica that defendant distributed drugs and such testimony is tantamount to an opinion on the ultimate issue regarding his guilt for the charged offense.

In support of this argument, defendant cites State v. Wheeler, 416 So.2d 78 (La.1982), in which the prosecutor posed a “hypothetical” to his expert in narcotics transactions, which consisted of a summary of his evidence. After he related the facts to the witness, he asked “In your expert opinion what is the likelihood of this individual being involved in the distribution of marijuana?” Over the defense counsel’s objection, the expert answered, “In my opinion the person would be involved in the distribution of marijuana.... ” The supreme court found that his testimony amounted to an opinion that the defendant was involved in the distribution of marijuana and reversed the defendant’s conviction on this ground.

In State v. Johnson, supra, this Court found that the prosecutor’s hypothetical, which tracked the specific facts of the case, including the activity observed during the surveillance, down to the number of pieces of crack recovered from the defendant and the weight of the large piece of crack recovered from the defendant’s apartment, caused the expert witness to come “too close to commenting on the ultimate issue.” Johnson, 52 So.3d at 125.

This Court held, however, that the trial court did not abuse its discretion in refusing to grant a mistrial because it was unclear how the expert witness’s testimony prejudiced the defendant. This Court considered the fact that prior to deliberations, the trial judge instructed the jury on the law regarding expert 1 ,r,witnesses and the jurors role as the “sole judges of the law and the facts on the question of guilt or innocence,” finding the trial judge’s instructions were sufficient to counteract any influence caused by the officer’s testimony. Further, despite the officer’s testimony, this Court found that the corroborated tip, the amount of cocaine found on the defendant and at his home, and the manner in which it was packaged, provided substantial evidence of the defendant’s guilt. Thus, this Court concluded that the officer’s comments were not so prejudicial as to warrant a mistrial.

In the case at bar, we again find that the prosecutor’s questions mirrored the specific facts of the case, which again caused the expert witness to come too close to commenting on the ultimate issue of guilt, which is the sole purview of the trier of fact.

Finding that the testimony was improper under La.C.Cr.P. art. 704, we must determine whether the trial court committed reversible error in denying defendant’s motions for mistrial. In this case, although the trial court did not admonish the jurors at the time of the objected-to testimony, the trial court did instruct the jurors before they retired to deliberate as follows:

Although you are the sole judges of the facts on the question of guilty or innocent, you have the duty to accept and apply the law as given to you by the Court. You must decide the facts from the testimony and other evidence, and apply the law to those facts in reaching your verdict.

Further, both prior to Sergeant Modica’s testimony and at the conclusion of trial, the trial court also instructed the jury on the law with respect to expert witnesses. Accordingly, as in Johnson, supra, we find that the trial court’s instructions to the jury were sufficient to counteract any influence caused by Sergeant Modica’s testimony.

| ^Moreover, based on our review of the record, we cannot say that Sergeant Mo-dica’s comments were so prejudicial as to warrant a mistrial. The record reflects that Detective Picarella observed what he suspected was hand-to-hand drug transaction by defendant at the apartment complex under surveillance for narcotics activity. Further, defendant was found in possession of fourteen plastic bags of marijuana and defendant confessed to selling marijuana because he was unable to find employment. Under the facts set forth in evidence at trial, defendant fails to show how the expert witness’s testimony prejudiced him based on the substantial evidence of his guilt presented at trial. Thus, we find the trial court did not abuse its discretion in refusing to grant a mistrial. This assignment of error lacks merit.

Errors patent

Pursuant to La.C.Cr.P. art. 920, we have reviewed the record for errors patent and note the following that require corrective action.

First, although the commitment reflects that defendant was given a proper advisal of the time period for seeking post conviction relief as required by La.C.Cr.P. art. 930.8, the transcript indicates that the trial court failed to provide the requisite advisal. When there is a discrepancy between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

If a trial court fails to advise, or provides an incomplete advisal, pursuant to La.C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post conviction relief by means of its opinion. See State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478 (La.4/19/13), 111 So.3d 1030; State v. Taylor, 12-25 (La.App. 5 Cir. 6/28/12), 97 So.3d 522, 538; State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, — U.S. —, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012); State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La.10/30/09), 21 So.3d 272; State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied, 09-0158 (La.10/16/09), 19 So.3d 473.

Accordingly, by this opinion, we advise defendant that no application for post 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 La.C.Cr.P. arts. 914 or 922.

Conclusion

For the foregoing reasons, we affirm defendant’s conviction, multiple offender adjudication, and enhanced sentence.

AFFIRMED.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Talandis O. COTTON.
    No. 14-KA-419.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 24, 2014.

      Thomas F. Daley, District Attorney, Or-enthal Jasmin, Assistant District Attorney, LaPlace, LA, for Plaintiff/Appellee.
    Gwendolyn Brown, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   JUDE G. GRAVOIS, Judge.

| .¿Defendant, Talandis Cotton, appeals his conviction for first offense domestic abuse battery, in violation of La. R.S. 14:35.3. For the following reasons, we find that defendant’s appeal is not properly before this Court, and accordingly dismiss this appeal.

PROCEDURAL HISTORY

On January 7, 2013, defendant was found guilty by a judge of domestic abuse battery in violation of La. R.S. 14:35.3, and was sentenced to imprisonment for sixty days, was placed on probation for six months, and was ordered to attend a domestic abuse battery prevention program. Defendant orally noticed his intent to appeal his conviction.

With no return date set by the trial court, defendant, on January 6, 2014, filed a writ application with this Court, seeking a writ of mandamus to have the |strial court ordered to rule on his notice of appeal. On February 4, 2014, this Court granted the mandamus and instructed the trial court to rule on defendant’s notice of appeal. State v. Cotton, 14-15 (La.App. 5 Cir. 2/4/14) (unpublished writ disposition).

With still no ruling from the trial court, on March 11, 2014, defendant filed another writ application with this Court stating that he had not received a ruling from the trial court setting a return date. On March 25, 2014, this Court issued an Order directing the trial court to provide a per curiam explaining why it failed to comply with this Court’s previous mandamus Order of February 4, 2014. On March 28, 2014, the trial court issued its per curiam with an explanation and set a return date of April 28, 2014. Thereafter, on April 7, 2014, this Court denied defendant’s writ application as moot, acknowledging a return date had been set for April 28, 2014. State v. Cotton, 14-173 (La.App. 5 Cir. 4/7/14) (unpublished writ disposition).

On April 21, 2014, defendant filed a “Petition for Supervisory Writ and for Writ of Mandamus” with this Court, seeking supervisory review of his domestic abuse battery conviction. In this writ application, defendant raised four assignments of error. In the first, defendant contended that his right against, double jeopardy was violated. In the second, he contended that the evidence was insufficient to support his conviction. In the third, he contended that his sentence was excessive. And lastly, he requested an errors patent review. This Court thereupon reviewed defendant’s assignments of error related to double jeopardy, insufficiency of the evidence, and excessive sentence and found that they were without merit. In regards to defendant’s fourth assignment of error, i. e., a request for an errors patent review, this Court found that defendant was not entitled to an errors patent review. On May 15, 2014, this Court denied defendant’s writ |4application. State v. Cotton, 14-286 (La.App. 5 Cir. 5/15/14) (unpublished writ disposition).

FACTS

On January 4, 2012, Melissa Cotton, defendant’s estranged wife, had just returned home and was proceeding throughout her house collecting garbage that needed to be taken out when she entered a darkened spare bedroom. Because Ms. Cotton had been surprised by defendant’s unannounced presence in her home before, she held a knife in her hand. As she entered the room, defendant jumped from behind a wall and wrestled her to the floor. Ms. Cotton testified that she had not given defendant permission to touch her. Pinning her to the floor, defendant told Ms. Cotton that she hurt him, that he loves her, and that she loves him. In an effort to free herself from defendant’s grasp, Ms. Cotton told him what she thought he wanted to hear, telling him that she loves him and asking him for a kiss. Defendant released Ms. Cotton and they continued talking, at which point her friend arrived at the house, knocking on the front door. Defendant stood behind Ms. Cotton as she opened the door. When her friend saw defendant, “she was scared.” Ms. Cotton gave her friend a hug, as it was her birthday, and told her to call 9-1-1, which she did. The police arrived on the scene soon thereafter.

Deputy Jay LeBlanc of the St. John the Baptist Parish Sheriffs Office was one of the officers who responded to the 9-1-1 call. When he arrived on the scene, he encountered defendant and Ms. Cotton arguing in the front yard. The officers spoke with both parties, at which point Ms. Cotton informed the officers that she had a restraining order against defendant. She also told the officers that defendant had broken into her house. Defendant disputed this, informing the officers that he had a key to the house. However, the key defendant provided to Deputy LeBlanc did not operate the lock. At this point, the officers detained defendant, conducted a | apat-down search for officer safety, and found on his person a flathead screwdriver, zip ties, and duct tape. Deputy LeBlanc noticed on the door fresh tool marks matching the screwdriver recovered from defendant’s person.

DISCUSSION OF JURISDICTIONAL ISSUE

Appellate jurisdiction extends only to cases that are triable by a jury. State v. Lyons, 13-180,13-181,13-182,13-183,13-184, 13-185,13-186 (La.App. 5 Cir. 10/9/13), 128 So.3d 407, 411 (citing La. Const. Art. 5, § 10; La.C.Cr. P. art. 912.1). “Unless the punishment that may be imposed exceeds six months imprisonment, a misdemeanor is not triable by a jury.” Id. (citing La. Const. Art. 1 § 17; La.C.Cr.P. art. 779).

La. R.S. 14:35.3(0 provides, in pertinent part:

On a first conviction, notwithstanding any other provision of law to the contrary, the offender shall be fined not less than three hundred dollars nor more than one thousand dollars and shall be imprisoned for not less than thirty days nor more than six months. At least forty-eight hours of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

(Emphasis added.)

In the present case, as noted above, the trial judge sentenced defendant to sixty days in jail, and ordered that defendant be placed on probation for six months and attend a court approved domestic abuse battery prevention program.

In Lyons, supra, the defendant appealed his conviction for several offenses, including a conviction for domestic abuse battery, in violation of La. R.S. 14:35.3, for which he was sentenced to six months in parish prison. Id., 128 So.3d at 41CM11. This Court found that the defendant’s misdemeanor conviction for domestic abuse battery, as well as the misdemeanor conviction for one count of simple possession of marijuana, was not triable by a jury because the maximum penalty the defendant could have received for the offense was limited to six months | nimprisonment, a fine of one thousand dollars, or both. Id., 128 So.3d at 412. This Court noted that the proper procedure for seeking review of a misdemeanor conviction is an application for a writ of review directed to this Court, in order for it to exercise its supervisory jurisdiction, and not an appeal. Id. (citing La.C.Cr.P. 912.1(C)(1)). In that case, however, this Court considered the defendant’s misdemeanor and felony convictions on appeal, after finding that they were intertwined to the point that the interest of justice would be better served by considering the matters together. Id.

In the present case, based on the above, we find that this Court does not have appellate jurisdiction because the maximum term of imprisonment defendant faced was six months for the only charged offense, a misdemeanor first offense domestic abuse battery, and therefore was not triable by a jury. See Lyons, supra. Further, we find that there is no necessity for us to allow defendant time to file a writ application seeking supervisory review of his misdemeanor conviction in this case because, as noted above, this Court has already reviewed defendant’s misdemeanor conviction in this case under its supervisory jurisdiction. Accordingly, we are compelled to dismiss this appeal.

CONCLUSION

For the foregoing reasons, this appeal is hereby dismissed.

APPEAL DISMISSED

      . In accordance with La.C.Cr.P. art. 779, this misdemeanor offense was required to be tried by the court without a jury.

      . La. R.S. 14:35.3 defines domestic abuse battery as "the intentional use of force or violence by one household member upon the person of another household member.”