author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Ronald STANFIELD.
    No. 2013-KA-1193.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 26, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Donald G. Cassels, III, Assistant District Attorney, Donna Andrieu, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

_jjThe Appellant, defendant Ronald Stan-field, seeks a review of the record for errors patent and reversal of his adjudication as a multiple offender and sentence of eight years at hard labor. For the reasons that follow, we affirm his adjudication and sentence. Furthermore, we grant appellate counsel’s motion to withdraw.

FACTS AND PROCEDURAL HISTORY

The defendant was convicted of simple burglary, a violation of La.Rev.Stat. 14:62 and was sentenced to ten years at hard labor, with credit for time served. Stan-field later filed a motion for post-verdict judgment of acquittal and a motion to reconsider sentence, both of which were denied. Stanfield appealed and this Court affirmed his conviction and sentence on appeal. State v. Stanfield, 10-0854 (La.App. 4 Cir. 1/19/11), 56 So.3d 428. He applied for writ of certiorari in the Supreme Court, which denied the writ. State v. Stanfield, 11-0266 (La.6/3/11), 63 So.3d 1007. The defendant also filed a pro se post-conviction motion to quash and application for post-conviction relief, which were denied by the trial court.

Pursuant to La.Rev.Stat. 15:529.2, the State charged the defendant as a multiple offender based upon a 2007 felony conviction for forgery. The trial court found him to be a multiple offender and, at a May 21, 2013 hearing, vacated his ten li>year sentence and sentenced him to eight years at hard labor with credit for time served. The Louisiana Appellate Project, on behalf of Stanfield, filed a motion for appeal and, subsequently, an appellate brief seeking this Court’s review of the case for errors patent. Stanfield later timely filed a supplemental pro se brief asserting five (5) assignments of error:

(1) the trial court abused its discretion by allowing inadmissible evidence to be used to convict defendant at multiple offender proceedings;
(2) the trial court erred where it denied defendant’s motion to quash multiple offender bill of information where the State untimely filed the information (3) years after original sentence and (120) days before parole release;
(3) the trial court erred in finding the State proved defendant was one in the same convicted of prior felony;
(4) the trial court erred in failing to properly warn defendant of the relinquishment of his Sixth amendment right to self-representation and failed to administer to defendant a Faretta hearing; and
(5) the trial court erred in finding that the State proved defendant is a Habitual Offender.

ERRORS PATENT

The Louisiana Appellate Project, on behalf of Stanfield, seeks this Court’s review of the record for errors patent on the multiple offender adjudication and sentence only. Additionally, the Louisiana Appellant Project seeks the right to withdraw as counsel of record.

|SA sole error patent was revealed upon our review of the record regarding Stan-field’s multiple offender sentence. At the sentencing hearing on May 21, 2013, the trial court vacated the Stanfield’s prior sentence and imposed a sentence of “eight years in the Department of Corrections as a double offender”. The trial court, however, failed to state that the sentence was to be without probation or suspension of sentence as per La.Rev.Stat. 15.529.1(G). Nevertheless, pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with the restriction of benefits, even in the absence of the trial court minute entry showing the restrictions. Thus, there is no need for our Court to correct the sentence.

Moreover, considering that the brief filed by the Louisiana Appellate Project is procedurally complete and compliant with the procedures outlined by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, we grant the motion to withdraw.

ASSIGNMENT OF ERROR ONE

In his first pro se assignment of error, Stanfield argues that the trial court erred in allowing inadmissible evidence, his fingerprints, to be used to convict him as a multiple offender over his objection. He maintains that at the multiple bill hearing he was compelled by the trial court to submit his fingerprints against his will in violation of his Fifth Amendment rights. He further relies on La.Rev.Stat. 15:29.1(F) in support of his argument that he . has a right to refuse fingerprinting.

Lin support of his argument that the trial court violated his Fifth Amendment rights, Stanfield relies upon Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In Davis, the defendant, John Davis, was convicted of rape and sentenced to life imprisonment. His conviction and sentence were affirmed on appeal. On writs of certiorari, the Supreme Court reversed the appellate ruling, finding that fingerprints taken from Davis at the time of his first detention were illegally obtained. As in Davis, Stanfield argues that the fingerprints taken at his multiple bill hearing should have been excluded from evidence because they were illegally obtained. He further argues that pursuant to Mapp, his fingerprints are inadmissible because the Supreme Court reasoned that all evidence obtained by searches and seizures in violation of the Constitution are inadmissible.

Stanfield maintains that because of the illegally obtained fingerprints, the trial court erred in denying his motion to reconsider sentence and also failed to take into account his time served, his rehabilitation, and other “mitigating factors”.

The record reflects that Stanfield’s fingerprints were taken by New Orleans Police Department Officer Jay Jacquet on the date of the multiple bill hearing and Officer Jacquet testified at the hearing. Stanfield objected to his fingerprints being |,.¡taken at the hearing arguing it was a violation of his rights under the 4th, 5th and 14th Amendments.

Nevertheless, it has been long determined by the Louisiana Supreme Court that it .is not a violation of one’s Fifth Amendment privilege against self-incrimination to take the accused’s fingerprints in court. State v. Woodard, 387 So.2d 1066, 1070 (La.1980) citing, State v. House, 320 So.2d 181 (La.1975). Furthermore, La. Rev.Stat. 15:39.1(F) does not support Stan-field’s fingerprinting argument. Thus, we find that the trial court did not err in obtaining Stanfield’s fingerprints at court for use in the multiple bill hearing. This assignment of error is without merit.

ASSIGNMENT OF ERROR TWO

In his second assignment of error, Stanfield argues that the trial court erred in denying his motion to quash the multiple offender bill when the State erroneously filed the bill of information three years after the original sentence and one hundred twenty days prior to his parole release.

According to Stanfield, the State was aware of his 2007 conviction, and it waited an unreasonable amount of time to file the multiple bill. Specifically, Stanfield argues that he was sentenced on March 4, 2010; however, the bill of information was accepted on January 10, 2013. He argues that the State unreasonably delayed the sentencing. He asserts that the court must consider:

1. the length of the delay, which Stan-field contends was three years after the original sentencing;
|fi2. the reason for the delay, which Stanfield claims the State failed to provide;
3. his right to a speedy trial, which Stanfield claims he requested;
4. the prejudice to Stanfield, who maintains that he anticipated being released after serving forty percent of his time; and
5. what party requested the delay, which Stanfield argues was the State, who sought twenty-six continuances.

Stanfield relies on La.Rev.Stat. 15:529.1(D)(l)(a) to support his argument that his motion to quash should have been granted. In State v. Grimes,, 01-0576, p. 5 (La.App. 4 Cir. 5/2/01), 786 So.2d 876, 879-80, we explained the intent of said statute, also referred to as the multiple offender statute:

The multiple offender statute, La. R.S. 15:529.1, does not provide a time period in which a multiple bill should be filed and the matter adjudicated except to note that a defendant may be charged as a multiple offender if “at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted” of another felony. State v. Walker, 98-1410 (La.App. 4 Cir. 5/12/99), 735 So.2d 837. In State v. Broussard, 416 So.2d 109, 110 (La.1982), the Louisiana Supreme Court noted that although La. R.S. 15:529.1 [7does not provide a time limitation, a multiple bill must be filed within a reasonable time after the State learns that a defendant has a prior felony conviction. The Court stated:
The same considerations which underlie the constitutional right to a speedy trial compel a conclusion that upon conviction a defendant is entitled to know the full consequences of the verdict within a reasonable time. Since the enhancement of penalty provision is incidental to the latest conviction, the proceeding to sentence under the provision should not be unduly delayed. Citations omitted.

The record reveals that Stanfield was convicted on February 1, 2010, and sentenced on March 4, 2010. While Stanfield appealed his conviction and sentence to this Court, the State filed a multiple bill on April 30, 2010, less than thirty days post sentencing. The record also reflects that the hearing on the multiple bill was not until April 19, 2013. Stanfield could have been charged as a multiple offender any time after his conviction and sentence within a reasonable time. The record further reveals that between February 2010 and April 2013, Stanfield failed to be transported to court over five times causing the multiple bill hearing to be continued, a delay that neither party can be responsible for. Although there was a delay in the hearing, the State was timely in filing the multiple bill, and the district court did not unreasonably delay the hearing. Therefore, we find that the multiple bill was filed within a reasonable time following Stan-field’s March 4, 2010 sentence. This assignment of error is without merit.

ASSIGNMENT OF ERROR 3

In his third assignment of error, Stanfield argues that the trial court erred in finding that the State proved he was the same person convicted of the 2007 felony, in Case Number 456-066, stemming from a crime committed in 2004.

IsStanfield maintains that the State was allowed to rely on expert testimony at the multiple bill hearing to testify in regards to fingerprints. According to Stanfield, the expert, Officer Jacquet, was unable to match the fingerprints taken at trial with those on the back of the bill of information from the 2004 crime. Moreover, the State’s evidence only proved that Stanfield was arrested for the alleged offense, not convicted.

Stanfield argues that there is no prima facie proof that he committed the 2004 crime. He relies upon State v. Nguyen, 04-321 (La.App. 5 Cir. 9/28/04), 888 So.2d 900, wherein the Fifth Circuit vacated the defendant’s conviction as a multiple offender where the record did not reflect that: 1.) the trial court held a multiple offender hearing; 2.) the State did not offer any evidence to prove the allegations in the bill of information; and 3.) the defendant did not admit to the allegations contained in the bill of information. Id. at pp. 19-20, 888 So.2d at 912. However, Stanfield’s reliance on Nguyen is misplaced because, unlike Nguyen, Stanfield had a multiple bill hearing.

To obtain a habitual offender conviction, the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. State v. Payton, 00-2899, p. 6 (La.3/15/02), 810 So.2d 1127, 1130, citing State v. Neville, 96-0137 (La.App. 4 Cir. 5/21/97), 695 So.2d 534, 538-39. The court in Payton explained that in attempting to establish identity, the State may present:

(1) testimony from witnesses; (2) expert opinion regarding the fingerprints of the defendant when compared with those in the prior record; (3) photographs in the duly authenticated record; or (4) evidence of identical drivers license number, sex, race and date of birth. [Emphasis added.]

|c)M at p. 6, 810 So.2d at 1130-31. Thus, matching the fingerprints on the bill of information from the initial crime is not required for the State to prove that a defendant charged as a habitual offender is the same person previously convicted. Fingerprints are not absolutely required to prove identity, if other requirements under Payton can be met.

The record reflects that at the multiple bill hearing on April 19, 2013, Officer Jac-quet testified that he is a latent print examiner, and the trial court accepted him as an expert in the area of fingerprinting, analysis and identification. He testified that he had taken Stanfield’s fingerprints that day in court in an attempt to match the fingerprint card with the fingerprints contained in a 2004 arrest folder, which contained a photo of Stanfield. Officer Jacquet explained that the fingerprints in the 2004 arrest folder were too dark to compare with the fingerprints taken in court that day; however, he was able to match up other information and conclude that Stanfield was the same person in the arrest folder from 2004.

The State introduced various documents relative to Stanfield through the testimony Officer Jacquet. The State offered into evidence two sets of fingerprints: one set from the 2004 arrest folder and the set taken from Stanfield that day in court. The State also offered a Cert Packet from Stanfield’s 2007 conviction. Officer Jac-quet confirmed that the Cert Packet contained a certified a bill of information, a Boykin form, a case number, an arrest register, a folder number. He further testified that he compared the folder numbers and State Identification Numbers (SIN) from the 2004 crime to those of the 2007 conviction and the respective numbers matched from those two exhibits.

_LmThe State established that the evidence linked Stanfield to the 2004 arrest despite Officer Jacquet’s inability to match the fingerprints. Viewing all of the evidence in a light most favorable to the prosecution, we find that the State proved Stanfield was the same person who committed the 2004 crime and was subsequently convicted. Thus, the trial court properly found Stanfield was a second-felony habitual offender, and this assignment of error is without merit.

ASSIGNMENT OF ERROR 4

In his fourth assignment of error, Stanfield argues that the district court violated his Sixth Amendment right to self-representation by failing to administer a Faretta hearing thereby informing him that he was relinquishing his right to counsel and if he understood the consequences of relinquishment.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), “the Supreme Court recognized a defendant’s Sixth Amendment right to conduct his own defense by making a knowing and voluntary waiver of his right to counsel and thereby asserting his right to represent himself.” State v. Mathieu, 10-2421, p. 6 (La.7/1/11), 68 So.3d 1015,1018.

The Louisiana Supreme Court held that while there is substantial authority that supports that a trial court must conduct an adequate Faretta colloquy when a defendant “elects hybrid representation” there is contrary authority that supports the position that a formal colloquy and an express waiver is not required where a defendant understands the action he or she is taking. Mathieu at pp. 9-10, 68 So.3d at 1020. Moreover, the Supreme Court further noted, pursuant to People v. Jones, 53 Cal.3d 1115, 282 Cal.Rptr. 465, 811 P.2d 757, 773 (1991), that where a defendant chooses a limited role as co-counsel, the defendant has not waived the right to counsel:

Inlf ... a defendant chooses to be represented by counsel and the trial court allows the defendant a limited role as cocounsel, the defendant has not waived the right to counsel. The defense attorney retains control over the case and can prevent the defendant from taking actions that may seriously- harm the defense. In that situation, the trial court may, but need not, warn the defendant of the problems of being cocounsel [sic].

Mathieu at pp. 9-10 (La.7/1/11), 68 So.3d 1015,1020.

“Generally, a defendant represented by counsel is bound by the motions and strategic decisions filed by counsel.” State v. Carter, 10-0614, p. 23 (La.1/24/12), 84 So.3d 499, 519 [citations omitted]. However, “[w]hile an indigent defendant has a right to counsel as well as the opposite right to represent himself, he has no constitutional right to be both represented and representative.” Id. at p. 24, 68 So.3d at 1019, citing State v. Brown, 03-0897, pp. 28-31 (La.4/12/05), 907 So.2d 1, 21-24 (quoting State v. Bodley, 394 So.2d 584, 593 (La.1981)). Nevertheless, a trial court has the discretion to allow a defendant to act as his own co-counsel. Mathieu at p. 7, 68 So.3d at 1019.

To the extent that hybrid representation in which defendant and counsel “act, in effect, as co-counsel, with each speaking for the defense during different phases of the trial,” results partially in pro se representation, “allowing it without a proper Faretta inquiry can create constitutional difficulties.” Carter, 10-0614, p. 25 (La.1/24/12), 84 So.3d 499, 520, citing Mathieu at p. 8, 68 So.3d at 1020 (quoting 3 LaFave, Criminal Procedure, § 11.5(g), pp. 765-67).

The Supreme Court has further explained what trial courts must consider when a defendant asserts the right to self-representation:

Should a defendant wish to waive counsel and represent himself, “[t]he determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances | ^surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) ... Further, a defendant must be made aware of the dangers and disadvantages of self-representation so that the record demonstrates that “ ‘he knows what he is doing and his choice is made with his eyes open.’” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)). A defendant, in other words, must know the consequences of his action. City of Monroe v. Wyrick, 393 So.2d 1273, 1275 (La.1981). The assertion of the right must also be clear and unequivocal. See Faretta, 422 U.S. at 835, 95 S.Ct. at 2541;. see also State v. Hegwood, 345 So.2d 1179, 1181-82 (La.1977).

Carter, 10-0614, p. 25 (La.1/24/12), 84 So.3d 499, 520.

The record in the instant matter reflects that Stanfield asserted his right of self-representation for the first time at the March 1, 2013 hearing on his motion to quash. At the April 19, 2013 multiple offender hearing, the trial court noted that Stanfield was “proceeding pro se ” but had “appointed counsel for the purposes of assistance as needed.” The record further reflects that both Stanfield was an active participant in his defense with his co-counsel, Joyce Salah, through to his sentencing as a multiple offender. Indeed, Ms. Salah, was present at the March 1, 2013 hearing where the trial court denied Stanfield’s motion to quash, and she advised the court then that “Mr. Stanfield is representing himself. I am Co-Counsel.” However, the transcripts reflect that Stanfield elected a hybrid form representation where Ms. Salah substantially participated in Stan-field’s defense.

Nothing in the record reflects that the trial court ever conducted a Faretta colloquy to advise Stanfield of the “dangers and disadvantages of hybrid representation” nor does the record reflect that Stanfield “personally and expressly” waived “his right to full representation.” Mathieu at p. 10, 68 So.3d at |1S1019. Nevertheless, Stanfield has not established that the trial court abused its discretion in allowing him to represent himself. Based upon the facts and circumstances of this case, the trial court could have determined that based upon Stanfield’s background, experience, and conduct, that he intelligently waived his right to counsel. Nothing in the record evidences that the defendant was not exercising his informed free will. Moreover, the record reflects that he, in fact, elected a hybrid form of representation and had counsel actively participating in his defense at his multiple bill hearing and sentencing. Therefore, we find that this assignment of error is without merit.

ASSIGNMENT OF ERROR FIVE

In his fifth pro se assignment of error, Stanfield argues that the trial court erred in finding that the State proved that he is a habitual offender. He argues that the State introduced into evidence a “packet” containing forms that do not reveal that he knowingly, intelligently and voluntarily waived his constitutional rights and that the State should not have been allowed to introduce a transcript wherein he pleaded guilty to another crime.

To prove that a defendant is a multiple offender, the State must establish by competent evidence that there is a prior felony and that the defendant is the same person who was convicted of the prior felony. State v. Chaney, 423 So.2d 1092 (La.1982). Where the prior conviction resulted from a plea of guilty, the state must show that the defendant was advised of his constitutional rights and that he knowingly waived those rights prior to this plea of guilty, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

_Jj40ur Court has noted that Louisiana Supreme Court adopted a scheme for burdens of proof in habitual offender proceedings in State v. Shelton, 621 So.2d 769 (La.1993):

If the defendant denies the multiple offender allegations then the burden is on the State to prove (1) the existence of a prior guilty plea, and (2) that defendant was represented by counsel when the plea was taken. Once the State proves those two things, the burden then shifts to the defendant to produce affirmative evidence showing (1) an infringement of his rights, or (2) a procedural irregularity in the taking of the plea. Only if the defendant meets that burden of proof does the burden shift back to the State to prove the constitutionality of the guilty plea. In doing so, the State must produce either a ‘perfect’ transcript of the Boykin colloquy between the defendant and the judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an ‘imperfect’ transcript. If anything less than a ‘perfect’ transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant’s prior guilty plea was informed and voluntary.

State v. Causey, 10-1466, p. 4 (La.App. 4 Cir. 6/16/11), 67 So.3d 697, 700-01, citing State v. Conrad, 94-232, pp. 3-4 (La.App. 5 Cir. 11/16/94), 646 So.2d 1062, 1064.

At the March 1, 2013 hearing on Stan-field’s motion to quash the Stanfield was given copies of the Cert Packet. At the April 19, 2013 multiple bill hearing, the State offered as exhibit three a Cert Packet, which contained: the bill of information, a Boykin form, an arrest register, a folder number, and a State ID. number. The Boykin form, which Stanfield initialed and signed, reflects that Stanfield was represented by counsel when he entered his guilty plea. It further evidences that he was advised of his rights, chose to waive his rights and pleaded guilty. Additionally, Officer Jacquet qualified as an expert and concluded that there was enough evidence to find that Stanfield was a multiple offender. Based |1fiupon the record, we find that the State met its burden of proof and Stanfield failed to rebut the evidence. This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the multiple offender adjudication and sentence of Ronald Stanfield. Additionally, the Louisiana Appellate Project is allowed to withdraw as counsel of record.

AFFIRMED; MOTION GRANTED.

      . Stanfield pleaded guilty to the forgery charge.

      . We initially addressed errors patent as to Stanfield’s conviction and original sentence in Stanfield, supra.

      . La.Rev.Stat. 15:529.1(F) provides:
      The certificates of the warden or other chief officer of any state prison, or of the superintendent or other chief officer of any penitentiary of this state or any other state of the United States, or of any foreign country, or of any chief officer of any parish or county jail in this state or any other state of the United States, or of the clerk of court of the place of conviction in the state of Louisiana, under the seal of his office, if he has a seal, containing the name of the person imprisoned, the photograph, and the fingerprints of the person as they appear in the records of his office, a statement of the court in which a conviction was had, the date and time of sentence, length of time imprisoned, and date of discharge from prison or penitentiary, shall be prima facie evidence of the imprisonment and of the discharge of the person, either by a pardon or expiration of his sentence as the case may be under the conviction stated and set forth in the certificate.

      . See also La. Prac. Crim. Trial Prac. § 20:42 (4th ed.), "[a]n accused may be required to submit to fingerprinting in court before the jury, without that being violative of his Fifth Amendment privilege against self-incrimination (the exposure of his physical characteristics is considered nontestimonial).”

      . La.Rev.Stat. 15:529.1(D)(1)(a) states:
      If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction. Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true. If he denies the allegation of the information or refuses to answer or remains silent, his plea or the fact of his silence shall be entered on the record and he shall be given fifteen days to file particular objections to the information, as provided in Subparagraph (b) of this Paragraph. The judge shall fix a day to inquire whether the offender has been convicted of a prior felony or felonies as set forth in the information.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest OF K.W.
    No. 2014-C-0299.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 28, 2014.

      Tenee Felix, Louisiana Center for Children’s Rights, New Orleans, LA, for Relator/Defendant.
    Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Respondent/State of Louisiana.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| jK.W., a child, was taken into custody without an order or warrant and held for longer than forty-eight hours without a judicial determination on whether probable cause existed to justify his continued detention. K.W. was finally brought before a juvenile-court judge six days after being taken into custody. At that time, K.W.’s counsel orally moved for his immediate release under La. Ch.C. art. 814 D. The judge denied that motion and proceeded to conduct a hearing to determine whether probable cause existed; at the conclusion of that hearing, the judge found probable cause.

K.W. applied for supervisory review on an emergency basis. We now peremptorily grant the application and, finding that the juvenile-court judge’s ruling was based on an erroneous view of controlling law, hold that she abused her discretion in denying KW.’s motion. Accordingly, we reverse her ruling and order the immediate release of K.W. to the care of his parents or guardian.

We explain our decision in more detail below.

I

We begin by describing the constitutional protection guaranteed by the Fourth Amendment against being taken into custody without an order or warrant Land being detained beyond — at the outside limit — forty-eight hours in the absence of bona fide emergency or other extraordinary circumstance without a determination of probable cause by a neutral magistrate. See State v. Wallace, 09-1621, p. 4 (La.11/6/09), 25 So.3d 720 723. Because “custody” in delinquency proceedings is the functional equivalent of an “arrest” in adult criminal proceedings, the police officer’s seizure of K.W. should be examined for constitutional purposes as a warrant-less arrest. See La. Ch.C. art. 812 A (“A child may be taken into custody ... pursuant to the laws governing arrest.”); La. Ch.C. art. 812 B (“The taking of a child into custody is not an arrest, except for the purpose of determining its validity under the Constitution of the United States or the Constitution of Louisiana.”).

The Fourth Amendment protects the “right of the people to be secure in their persons ... against unreasonable ... seizures.” U.S. Const, amend. IV. See also La. Const, art. I, § 5. The Fourth Amendment guards against warrantless arrests and subsequent prolonged detention without a determination by a neutral magistrate of whether probable cause existed to justify that seizure. The foundation of this mandate is grounded in our society’s abhorrence of “extended incarceration based on mere accusation.” Wallace, 09-1621, p. 10, 25 So.3d at 727 (Weimer, J., concurring).

To comply with the requirements of the Fourth Amendment, states must “provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.” Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). This “promptness” standard emerged from the Supreme Court’s efforts to find a balance between the district attorney’s “strong interest in | ^protecting public safety by taking into custody those persons who are reasonably suspected of having engaged in criminal activity, even when there has been no opportunity for a prior determination of probable cause” and the harms of “prolonged detention based on incorrect or unfounded suspicion.” County of Riverside v. McLaughlin, 500 U.S. 44, 52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991).

The Supreme Court, in Riverside, later found “promptness” as a standard to be too vague and lacking in sufficient guidance for proper practices. Id. at 56, 111 S.Ct. 1661. In clarifying, the Court held that “a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.” Id. “Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes, [and] the arrested individual does not bear the burden of proving unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.” Id. at 56-57, 111 S.Ct. 1661.

The bedrock constitutional protections contained in the Riverside decision also apply to juveniles in delinquency proceedings. See Application of Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (“[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.”). See also La. Ch.C. art. 808 (“All rights guaranteed to criminal defendants by the Constitution of the United States or the Constitution of Louisiana, except the right to jury trial, shall be applicable in juvenile court proceedings.”).

“In response to [Riverside], states quickly codified the 48-hour probable cause determination rule.” Wallace, 09-1621, p. 6, 25 So.3d at 724. Louisiana, in |4the year following the opinion, statutorily complied with the holding in Riverside with regards to both adults and juveniles accused of crimes. See La.C.Cr.P. art. 230.2; La. Ch.C. art. 814 D.

II

' In this Part we address the juvenile-court judge’s two justifications for denying KW.’s motion for release from custody as expressed in her per curiam provided to us at our request. Both of her justifications, however, are based on erroneous views of controlling law. A trial judge necessarily abuses her discretion in denying a motion to quash if her ruling is based on an erroneous view of the law. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); see also State v. Hayes, 10-1538, p. 11 (La.App. 4 Cir. 9/1/11), 75 So.3d 8, 15; United States v. Taylor, 487 U.S. 326, 336, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988) (noting that “discretionary choices are not left to a court’s inclination, but to its judgment,” which is guided by sound legal principles). If a trial judge in exercising her discretion “bases [her] ruling upon an erroneous view or application of the law, [her] ruling is not entitled to our deference.” State v. Dillon, 11-0188, p. 4 (La.App. 4 Cir. 8/24/11), 72 So.3d 473, 476.

A

One justification offered by the juvenile-court judge is that the Gerstein-Riverside-required probable cause determination can' be aggregated with other proceedings, such as the bail determination and appointment of counsel, and, more importantly for our purposes, that the 48-hour limit is exclusive of weekends and |holidays. While it is true that the constitution allows for some additional delay in a magistrate’s finding of probable cause in order to permit states to aggregate proceedings, under no circumstance, however, does that constitute a basis for extending detention without a finding of probable cause beyond the 48-hour limit. See Riverside, 500 U.S. at 57, 111 S.Ct. 1661 (“A jurisdiction that chooses to offer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest.”). And just as critical is that the 48-hour period is, contrary to the juvenile-court judge’s view, inclusive of and not exclusive of weekends and holidays. Id. (“The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends.”)(emphasis added). See also La. Ch. C. art. 814 D (“Within forty-eight hours after the child has been taken into custody, including legal holidays within the time computation, the court shall review the affidavit, and if it determines that probable cause exists, the child shall be held for a continued custody hearing pursuant to Article 819.”) (emphasis added).

Thus, when K.W. was taken into custody without a court order or judicial warrant at 1.2:32 P.M. on February 12, 2014, the constitution demands that by the latest at 12:32 P.M. on February 14, 2014, either a judicial officer will have made a finding of probable cause for his continued custody or that he is to be immediately released from custody.

B

The other justification offered by the juvenile-court judge is that KW.’s custody was by virtue of a judicial warrant and therefore Gersteinr-Riverside does not apply. As we understand the juvenile-court’s explanation, there was a warrant |fiwhich issued. We have neither the warrant, nor the application submitted in support of the warrant. But it seems, based upon our reading of her per curiam, that the warrant named four persons, but not K.W., and that the application must have described a fifth person as one of the perpetrators of the felony-grade delinquent act (armed robbery). From the information developed at the probable cause hearing held beyond the 48-hour limit, the trial judge concluded that the fifth person described in the application but unnamed in the warrant was K.W. From this, she concludes that KW.’s custody was not warrantless. We disagree.

“[I]ndiscriminate searches and seizures conducted under the authority of general warrants’ were the immediate evils that motivated the framing and adoption of the Fourth Amendment.” Payton v. New York, 445 U.S. 573, 583, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). “The Fourth Amendment’s requirement that a warrant particularly describe the place to be searched, and the people to be seized,’ repudiated these general warrants and makes general searches impossible and prevents the seizure of one thing under a warrant describing another.’ ” Berger v. New York, 388 U.S. 41, 58, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) (internal punctuation omitted). Here, there was no determination by a neutral magistrate as to whether probable cause existed to take K.W. into custody prior to his seizure. The arrest warrant was in effect a “general warrant” to seize an unidentified assailant. Probable cause must be found as to a particular person prior to seizure in order to circumvent the requirements of Gerstein-Riverside.

17Thus, because we necessarily conclude that a warrant which does not particularly describe the person to be seized is no warrant at all, we again find that this justification offered by the juvenile-court is based upon an erroneous view of the law and to the extent that she based her denial of his immediate release on such a view, she abused her discretion in denying K.W.’s immediate release.

Ill

We now turn to examine the district attorney’s opposition to KW.s application. At the outset we note that the district attorney’s opposition is not based upon either justification proffered by the trial judge. The district attorney concedes that there was no probable cause determination within the 48-hour limit but argues that the relief of immediate release should not be afforded to K.W. for two reasons. First, La. Ch.C. art. 814 D does not provide a remedy for its violation. Second, a subsequent finding of probable cause justified KW.’s continued custody and, as we understand the argument, cures the theretofore illegal continued detention.

A

We first consider the district attorney’s more general point which is that Article 814 D, unlike La.C.Cr.P. art. 230.2, does not explicitly supply immediate release as the remedy for the violation of the 48-hour limit. And thus the district attorney understands the holding of State v. Wallace to be restricted only to adults who were subjected to a warrantless arrest. We disagree.

La.C.Cr.P. art. 230.2 was enacted in 1992 — one year after Riverside was handed down. Article 230.2 A states, “Persons continued or remaining in custody pursuant to an arrest made without a warrant shall be entitled to a determination of probable cause within forty-eight hours of arrest.” The article also explicitly | ^provides a remedy for a violation of that provision. “If a probable cause determination is not timely made in accordance with the provisions of Paragraph A of this Article, the arrested person shall be released on his own recognizance.” La.C.Cr.P. art. 230.2 B(l). The Louisiana Supreme Court, in Wallace, found La.C.Cr.P. art. 230.2, as applied to adults, is “particularly straightforward in mandating the release of a person arrested without a warrant for whom a probable cause determination has not been made within 48 hours of ... that person’s arrest.” Wallace, 09-1621, p. 6, 25 So.3d at 724.

La. Ch.C. art. 814 was enacted in 1991— shortly after Riverside was decided. Article 814 D states, “Within forty-eight hours after the child has been taken into custody, including legal holidays within the time computation, the court shall review the affidavit, and if it determines that probable cause exists, the child shall be held for a continued custody hearing pursuant to Article 819. If the court determines that probable cause does not exist, the child shall be released from custody.” Article 814 provides no explicit remedy, it is true, in the event that the police officer fails to submit an affidavit or the juvenile-court judge fails to review it within forty-eight hours to determine whether probable cause exists to continue the child’s detention. Because Article 814 was adopted to effectuate the Gerstein-Riverside protection, it would be anomalous that in such event of dereliction of duty by either the police officer or the judge a child would be continued in custody.

Thus both articles were enacted after the Riverside was decided; they are grounded in and undoubtedly have their geneses in Riverside. See Wallace, 09-1621, at p. 5, 25 So.3d at 724-725 n. 5. Consequently, we read the Louisiana Supreme Court’s ruling in Wallace not as primarily a case of statutory interpretation but one of constitutional application. And we can see no reason, if |swe find in our review that a child’s right to a timely probable cause determination was violated, that we would not hold that the child, just as much as an adult, is “entitled to immediate release” from continued custody (albeit not on his own recognizance but instead into the care of his parents or guardian). Wallace, 09-1621, p. 1, 25 So.3d at 721; also see La. Ch.C. art. 808 (all rights, except jury trial, guaranteed to adult defendants are guaranteed to children). This remedy, moreover, comports with the underlying policy set forth in La. Ch.C. art. 801 (“purpose of this Title is to accord due process to each child who is accused of having committed a delinquent act”).

Thus, we search for the remedy for the constitutional violation and not necessarily the remedy, expressed or unexpressed, for a state-specific procedural rule. We find that Gerstein requires a fair and reliable determination of probable cause either before or promptly after arrest “as a condition for any significant pretrial restraint”. 420 U.S. at 125, 95 S.Ct. 854 (emphasis added). Thus, if the condition is not fulfilled, the pretrial restraint must be terminated or, stated another way, the detainee released. And Riverside delimited the phrase “promptly after arrest” to ordinarily not exceed 48 hours. 500 U.S. at 56, 111 S.Ct. 1661. Therefore, when the 48-hour limit is exceeded, pretrial restraint must be terminated and the detainee released from custody.

Moreover, we cannot overlook that such prolonged detention for an adult can, by way of illustration, “impair his family relationships.” Gerstein, 420 U.S. at |10114, 95 S.Ct. 854. A fortiori can such prolonged detention negatively influence a child who is more “vulnerable” than an adult. Roper v. Simmons, 543 U.S. 551, 569, 125 S.Ct. 1183,161 L.Ed.2d 1 (2005).

B

The district attorney’s alternative argument is that, because of the subsequent finding of probable cause albeit outside of the 48-hour limit, the violation of K.W.’s right to a probable cause determination is cured. The essence of this argument is that, because K.W. either delayed in seeking his immediate release upon the expiration of the 48-hour limit or was unable to secure his immediate release before the commencement of the untimely probable cause hearing on account of an erroneous ruling by the trial judge, then the relief of immediate release which he now seeks is mooted by the untimely probable cause finding. This is an attractive argument, but we are compelled to reject it.

In support of this notion, the district attorney cites State in the Interest of C.R., 07-0233 (La.App. 4 Cir. 1/16/08), 976 So.2d 243, 246, which held that once probable cause has been found by a court, the issue of release from custody pursuant to La. Ch.C. art. 814 D becomes moot. We, however, distinguish C.R. on two bases. First, in that case, the child waited until after the finding of probable cause to object to the timeliness of the probable cause hearing; here, K.W.S counsel objected prior to the late finding of probable cause by the juvenile-court judge. Second, C.R. was decided before Wallace, and its continued viability is necessarily undermined. See Wallace, 09-1621, p. 10, 25 So.Bd at 726 (“Finally, a finding of probable cause made at a ‘first appearance’ or 72-hour hearing does not [n‘cure’ the magistrates failure to make a probable cause determination within 48 hours.”).

IV

Having rejected the district attorney’s argument, we turn now to clearly express that the remedy in delinquency proceedings for a child taken into custody without an order or warrant is immediate release from continued custody notwithstanding any later held proceedings resulting in a finding of probable cause. From the moment of the expiration of the 48-hour limit, if applicable, until a child’s adjudication as a delinquent, he may not be continued in custody if a judicial officer did not make a timely finding of probable cause. Moreover, the child’s failure to immediately assert that right upon the expiration of the 48-hour limit does not constitute a waiver of his right to be released from continued custody at any point until adjudication as a delinquent.

Before closing, we note that compliance with the 48-hour outside limit is hardly onerous. All that is required is for the arresting officer to furnish an affidavit to the judge from which the judge may make a finding of probable cause for taking the child into custody.

Also, we express concern about whether the Orleans Parish Juvenile Court is in compliance with the requirements of the Constitutions of the United States and Louisiana and Article 814. Unlike the Supreme Court, however, we do not have general supervisory over inferior courts; we only have supervisory jurisdiction over cases which arise in our circuit. See La. Const, art. 5, § 5(A) and 10(A). But we suggest that it should take note of the Supreme Court’s instructions to the | ^Criminal District Court in the Conclusion and Decree in Wallace. 09-1621, p. 10, 25 So.3d at 727.

And finally, returning to the case in which we are exercising our supervisory jurisdiction, it is important to cure the illegal detention of K.W. because in the absence of a timely probable cause determination his continued custody is illegal. See Wallace, 09-1621, p. 1, 25 So.3d at 721.

DECREE

Accordingly, we peremptorily grant K.W.’s application for supervisory relief, reverse the juvenile-court judge’s ruling denying his immediate release, and order KW.’s custodian to immediately release him into the care of his parents or guardian.

WRIT PEREMPTORILY GRANTED; RULING REVERSED; IMMEDIATE RELEASE ORDERED.

      . This extends "to juveniles rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.” La. Ch.C. art. 808 cmt.

      . We note in passing that neither the juvenile-court judge nor the district attorney attempted to justify the continued custody of K.W. beyond the 48-hour limit by claiming that a bona fide emergency or other extraordinary circumstance existed.

      . During that same post-48-hour probable cause hearing, the investigating officer, Detective Thomas Perez of the New Orleans Police Department, who took K.W. into custody stated that he did not have a warrant for K.W.'s custody. Detective Perez testified that K.W. was not listed on the initial arrest warrant which named four other perpetrators. Eventually K.W. was identified from a picture released to the media. Detective Perez admitted that the police did not seek an arrest warrant at that point. Detective Perez explained that a warrant was never issued to take custody of K.W., and thus there was no judicial determination made as to whether probable cause existed prior to his seizure.

      . It is important to note that an illegal arrest "does not void a subsequent conviction.... 'Thus, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on th[at] ground.’ ” State v. Wallace, 09-1621, p. 4 (La.11/6/09), 25 So.3d 720, 723 (quoting Gerstein, 420 U.S. at 119, 95 S.Ct. 854).

      . "[T]he the idea that a violation of the 48-hour rule can be cured by a probable cause determination made after the 48 hours has expired ignores the clear language of the statute.” Wallace, 09-1621, p. 10, 25 So.3d at 727.


author: GARRETT, J.

text:
    STATE of Louisiana in the Interest of L.M.
    No. 49,098-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.
    Samuel D. Goodwin, for Appellant, Debbie Muskelly — Mother.
    Pamela R. Moser, Assistant District Attorney, for Appellee, State of Louisiana.
    Allen Haynes, for Appellee, Floyd McDuffy — Father.
    Nancy Cooper, for L.M. — Child.
    Before WILLIAMS, LOLLEY and GARRETT, JJ.
   GARRETT, J.

LDM appeals from the juvenile court’s order that she be allowed only supervised visitation with the child, LM. For the following reasons, we affirm the trial court judgment.

FACTS

The facts and issues in this case are intertwined with those in State in Int. of H.M. and Q.M., 49,097 (La.App.2d Cir.3/26/14), 134 So.3d 678. DM is the mother of eight children: SM, KM, BM, YM, RM, HM, QM and LM. DM’s oldest daughter, SM, is now 20 years old, but was in foster care in Virginia from the ages of 12 to 15. DM was convicted of fraud and embezzlement in Virginia. She claimed she was sentenced to serve five years and ordered to make restitution. According to DM, she picked up SM from foster care and was on the run with her family for years, moving from state to state.

In the present proceedings, DM mentioned that she “caught the charge” in Louisiana in 2009. The record is not clear, but it appears this involved a new criminal charge in Louisiana for which DM was initially given a suspended sentence, had her probation revoked, and was required to serve her sentence. According to DM, she began doing prison time in Louisiana in January 2012. She was placed in Caddo Correctional Center (“CCC”) and transferred to Louisiana Transitional Center for Women (“LTCW”) in Tallulah. She was eventually sent to Virginia to serve her sentence in that state.

LM’s father is FM, who lives in Shreveport. LM’s date of birth is June 15, 2011. After DM’s incarceration in Louisiana, LM went to live with her father.

|2The father of HM, QM, and RM is JG, who now lives in New Orleans. DM gave SM a power of attorney and provisional custody of HM, QM and RM, with instructions to take care of the younger siblings and stay in touch with her mother. SM did not stay in touch with her mother and DM claimed that she became concerned about the children. While at CCC and LTCW, DM became friends with another inmate, TW, who was released in October 2012. DM gave TW provisional custody of HM, QM, and RM.

Tragically, on June 17, 2013, three-year-old RM was taken to Louisiana State University Health Sciences Center (“LSUHSC”) in Shreveport with severe injuries from which she died. TW allegedly beat the child with an extension cord, which caused the fatal injuries. The State of Louisiana, Department of Children and Family Services (“DCFS”) took QM and HM into custody at this point.

Due to the death of RM, authorities in Virginia granted DM an early release from incarceration and she returned to Shreveport to attend the funeral. DM and SM, who now had a two-week-old infant, checked into the Plantation Inn motel. KT, the father of SM’s child, stayed in the room with them.

FM determined that DM should spend some time with LM, who was then two years old. He took the child to the motel and stayed with the group for several days, but left occasionally to work. On June 30, 2013, the DCFS received a report that smoking and drinking were going on in the motel room and that LM was not adequately supervised. It was also reported that KT 1¡¡was a child molester. By the time the DCFS located DM, she had moved to a different motel with SM and SM’s baby. FM had returned to his fian-cée’s residence along with LM. The DCFS took custody of LM from her father.

On July 2, 2013, an instanter order and rule to show cause were issued by the juvenile court finding reasonable grounds to believe that LM was a child in need of care due to lack of supervision. LM was placed in the temporary custody of the DCFS, put in a foster home, and a continued custody hearing was scheduled for July 8, 2013.

At the continued custody hearing, DM and FM were drug tested and both tested positive for marijuana. FM stated that he last smoked marijuana on July 4. DM said that she last smoked marijuana on the day she got back to Shreveport after her release from prison in Virginia. DM denied that she smoked marijuana or drank in front of the children. DM had obtained employment and was making arrangements to rent a house so that three of her children from Virginia could come to live with her. DM stated that after she regained custody of her children, she wanted to return to Virginia where her family lives.

FM testified that he lived with his fian-cée, who had helped him care for LM since the child was six months old. He worked in the kitchen at LSUHSC until December 2012, when he lost his job. He currently performs lawn work, but hoped to soon begin regular employment working with |/‘tractor trucks.” FM promised that if LM was returned to his custody, he would stop smoking marijuana.

FM’s fiancée, LJ, testified that she had been in a relationship with FM off and on for more than seven years and helped care for LM. She was employed and claimed that she does not smoke, drink, or use drugs.

At the conclusion of the continued custody hearing, the court placed temporary custody of LM with her father and allowed DM supervised visitation with the child. The court expressed serious concerns that DM would take the child and flee to Virginia. The court stated, “I don’t want to have to send the FBI out after her.” The court emphasized to FM the importance of supervised visitation and told FM, “Sir, if she flees with the child, and I become convinced it’s because of your lack of supervision of the visitation, you’ll be in contempt of court, six months in jail.”

The child in need of care adjudication for LM was held on August 29, 2013. DM stipulated that LM was a child in need of care, but denied the allegations of lack of adequate supervision of the two-year-old child. The juvenile court accepted the stipulation.

The disposition hearing was held on September 26, 2013. For purposes of disposition, LM’s case was consolidated with the case involving HM and QM. No objection was lodged by any of the parties to the matters being heard at the same time. Because all of the children were in the custody of their respective fathers, the juvenile court found that permanent placement of the children had been achieved. The court rejected DM’s implicit argument that she was not responsible for what happened to RM when she placed the child with a stranger she met in prison. Due to her lack | Bof judgment, the court refused to trust her with the exclusive unsupervised care of the children. Finding that HM and QM continued to be children in need of care, the court allowed them to remain in their father’s custody in New Orleans with only supervised visits with their mother.

As to LM, the court made a similar finding. The court found that placement of custody of LM with her father was the least restrictive disposition. Although FM was comfortable with DM having unsupervised visitation with LM, the DCFS requested supervised visits. The court continued its order for supervised visitation because it feared that DM was still a flight risk. The court also found that DM did not exercise the type of judgment the court would be satisfied with to trust the child to her unsupervised care. The judge reiterated to FM that he would be held in contempt of court if he failed to supervise DM’s visits. The juvenile court retained jurisdiction in these cases. Judgment in conformity with this ruling was signed on October 1, 2013.

DISPOSITION

DM appeals the disposition. While admitting that the adjudication of LM as a child in need of care followed a valid stipulation, she argues that the disposition allowing her only supervised visitation with LM is unduly harsh and relies heavily upon the adjudication of HM and QM. She contends that if the adjudication of HM and QM is reversed, the disposition in LM’s case should likewise be overturned. In that event, DM asserts, the disposition in the instant case would only rest upon DM’s “minimal marijuana use” and the disposition should be modified to joint custody with |6a protective order directing both parents to abstain from using illegal drugs. These arguments are without merit.

Legal Principles

DM stipulated that LM was a child in need of care in accordance with La. Ch. C. art. 647. La. Ch. C. art. 681 provides in pertinent part:

A. In a case in which a child has been adjudicated to be in need of care, the child’s health and safety shall be the paramount concern, and the court may do any of the following:
(1) Place the child in the custody of a parent or such other suitable person on such terms and conditions as deemed in the best interest of the child including but not limited to the issuance of a protective order pursuant to Article 618.

According to La. Ch. C. art. 683, the court shall impose the least restrictive disposition of the alternatives enumerated in Article 681 which the court finds is consistent with the circumstances of the case, the health and safety of the child, and the best interest of society.

It is well settled that an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. In re A.J.F., 2000-0948 (La.6/30/00), 764 So.2d 47; State in Int. of L.M., W.M., O.M., M.M. and M.M., 46,078 (La.App.2d Cir.1/26/11), 57 So.3d 518; In terest of C.C. v. E.C.C., 2001-1364 (La. App.3d Cir.3/20/02), 813 So.2d 576. In a manifest error review, it is important that the appellate court not substitute its own opinion when it is the juvenile court that is in the unique position to see and hear the witnesses as they testify. Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inference of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the juvenile court. State in Int. of L.M., W.M., O.M., M.M. andM.M., supra.

The juvenile court’s determination concerning the placement of a child in need of care is entitled to great weight and will not be reversed on appeal absent an abuse of discretion. State in Int. of L.M., W.M., O.M., M.M. and M.M., supra; State in Int. of W.T., 35,289 (La.App.2d Cir.8/14/01), 795 So.2d 414, writ denied, 2001-2738 (La.10/26/01), 799 So.2d 1157. See also State in Int. of C.N. v. Hawkinberry, 42,085 (La.App.2d Cir.2/28/07), 953 So.2d 870.

Discussion

At the disposition hearing, FM stated that he did not object to DM having unsupervised visitation with LM. He had been supervising visitation and in his view the visits had gone well. DM was visiting LM three days a week. He believed that if he were not present, DM and LM could better develop a bond. FM did not have any concerns that DM would try to leave Louisiana with the child if she were granted unsupervised visitation. However, we note that in his testimony FM stated “I think the Judge made 18that clear when he told her he would send a marshal out.” He acknowledged that if she did flee, he would have to notify the DCFS and see what steps would need to be taken.

DM admitted at the disposition hearing that she wanted to return to Virginia, but said she would stay in Louisiana “until she got her children back.”

After listening to argument and questioning the parties, the juvenile court found that placing custody with FM was the least restrictive, most appropriate disposition. Despite FM’s lack of opposition to DM having unsupervised visitation with LM, the juvenile court ruled that DM’s visitation must continue to be supervised. The juvenile court noted DM’s lack of judgment and candor and stated its belief that DM was a flight risk. This belief was shared by the DCFS, which had argued in favor of supervised visitation. The court instructed FM to supervise visitation “in such a way that you will protect your child.” The juvenile court again warned FM that if it received a report that he had ignored the court’s order that visitation be supervised, he would be in contempt of court.

Based upon this record, the juvenile court was not manifestly erroneous or clearly wrong and did not abuse its discretion in ordering that DM’s visitation with LM be supervised. DM has a proven propensity to flee from justice. In the past, after being convicted of a crime in Virginia, DM fled, taking at least one of her children with her, without court authorization. She acknowledged that she and her family lived on the run for several years. DM expressed a desire to return to Virginia. Also, the court considered DM’s extremely poor judgment in entrusting three of her children to a 19virtual stranger who is now charged with cruelly abusing and killing one of the children. The juvenile court’s order of supervised visitation is completely justified and supported by the record. Further, as noted by the trial court, the order is always subject to review and modification in the future.

CONCLUSION

For the reasons stated above, the juvenile court disposition ordering that DM have only supervised visitation with LM is affirmed. All costs in this court are assessed to DM.

AFFIRMED.

      . At the time of these juvenile proceedings, DM stated that KM, BM and YM were in Virginia. The record contains no information regarding who is caring for these children.

      . KT was contacted and denied being a child molester. He acknowledged that when he was 17 years old, he was involved with a 15-year-old girl and was charged with indecent behavior with a juvenile.

      . La. Ch. C. art. 647 provides:
      With the approval of the petitioner and the department, if a child is in the custody of the department, a parent whose child is the subject of pending proceedings may, with or without admitting the allegations of the petition, stipulate that the child is in need of care according to Article 606, provided that:
      (1) A prehearing conference has been convened in accordance with Article 646.1.

        ti) The parent personally appears before the court.
      (3) The court fully informs the parent of his rights as required by Article 625.
      (4) The court fully informs the parent of the consequences of such a stipulation, including the parent’s responsibility to comply with the case plan and correct the conditions requiring the child to be in care.
      (5) The parent knowingly and voluntarily consents to the judgment.


author: PITMAN, J. BROWN, Chief Judge,

text:
    TOWN OF HOMER, Plaintiff-Appellant v. ENTERGY LOUISIANA, INC., Defendant-Appellee.
    No. 48,924-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      Kean Miller LLP, Baton Rouge, By Katherine W. King, Pamela R. Mascari, Shannan Sweeney Rieger, for Appellant.
    Breithaupt, Dunn, Dubos, Shafto & Wolleson, L.L.C. By Michael L. DuBos, Monroe, K. Mamar Walters, III, Marcus Brown, Cory R. Cahn, T.A., for Appellee.
    Before BROWN, STEWART & PITMAN, JJ.
   PITMAN, J.

11 Appellant Town of Homer (“Homer”) appeals the trial court’s denial of its motion for summary judgment and granting of appellee Entergy Louisiana, Inc.’s (“En-tergy”) motion for summary judgment. For the following reasons, we affirm the judgment of the trial court.

FACTS

Homer was incorporated by Act No. Ill of 1850. By Ordinance No. 60, approved on September 16, 1901, the Town of Homer Charter (the “Charter”) was amended to add Section 16, Numbers 2-20, which grant powers concerning utilities to the mayor and selectmen of Homer. Number 5 states:

To grant the right for the construction of telegraph, electric light, or telephone poles, posts and wires, along and upon any of the streets, alleys or ways of the municipality, and change, modify and regulate the same. But such privilege shall not be exclusive.

Number 6 states:

To grant to any person or corporation the use of the streets, alleys and public grounds for the purpose of laying gas, water, sewer or stream pipes or conduits for electric lights to be used in furnishing or supplying the municipality and inhabitants or any person or corporation with gas, water, sewerage, steam or hot air for heating purposes or light, but a franchise, right-of-way, or privilege of character whatever shall not be granted for a longer period than twenty-five (25) years, and such privilege shall not be exclusive.

On August 31, 1977, Louisiana Power & Light (the predecessor of Entergy) presented Homer with an offer to operate and potentially gain ownership of its electric plant and system and to enter into a 60-year franchise to operate the plant and system. On December 7,1977, the Homer Board of Selectmen adopted Ordinance No. 658 (the “Ordinance”), which granted Entergy a 60-year franchise to supply electric power and energy to RHomer.

On March 15, 1978, Homer and Entergy entered into an agreement (the “Operating Agreement”) for “the operation and possible ultimate transfer of ownership of the electric system” of Homer. Section 14 of the Operating Agreement states, in part, that:

Section 14. Throughout the time that this Operating Agreement remains in effect, the Town shall not:
(a) grant or issue to anyone other than the Company ... any franchise or permit for the generation, transmission, distribution and/or sale of electric power or energy within the corporate limits of the Town[-]

On April 4, 2008, Homer filed a petition requesting that the trial court render a judgment declaring that the Operating Agreement is voidable and terminable at the election of Homer as it is a violation of the Charter. Homer alleged that the Charter prohibits it from granting a franchise that exceeds 25 | -¡years and that the agreement with Entergy is for 60 years.

On February 4, 2013, Homer filed a motion for summary judgment, arguing that it is entitled to a judgment declaring the Operating Agreement null, void and without effect. Homer contended that the Ordinance and the Operating Agreement violate the Charter, which limits franchises to 25 years and prohibits exclusive franchises, because the Ordinance grants En-tergy a franchise for the term of 60 years and the Operating Agreement grants En-tergy an exclusive franchise.

On March 12, 2013, Entergy filed a motion for summary judgment and requested that the court dismiss with prejudice any and all claims by Homer. Entergy argued that the Charter was amended by La. R.S. 33:4341, which allows municipalities to sell electric systems and to grant 60-year franchises; and, therefore, the Operating Agreement is valid, effective and should be enforced.

On May 9, 2018, at the hearing to argue the motions for summary judgment, Homer conceded that the facts are not in dispute, but argued that the parties disagree on whether the Charter was amended by La. R.S. 33:4341 to extend the maximum term for franchises to 60 years. Entergy argued that La. R.S. 33:4341 did amend the Charter because it is a local law, as opposed to a general law. Enter-gy contended that the statute is a local law because it does not apply to the entire State of Louisiana. The trial court stated that there were no material facts in dispute and that the only issue was whether La. R.S. 33:4341 is a local or general law. The trial court found that La. R.S. 33:4341 is a local or special statute and granted judgment in favor of Entergy.

|4On May 30, 2013, the trial court filed a written judgment reflecting its determination that there were no genuine issues of material fact and that Entergy is entitled to judgment as a matter of law. The trial court denied Homer’s motion for summary judgment, granted Entergy’s motion for summary judgment and dismissed Homer’s requests for declaratory relief.

Homer now appeals the judgment of the trial court.

DISCUSSION

An appellate court reviews a trial court’s granting of summary judgment de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Louisiana High Sell. Athletics Ass’n, Inc. v. State, 12-1471 (La.1/29/13), 107 So.3d 583.

The parties agree that the resolution of this case turns on whether La. R.S. 33:4341 is considered to be a local law or a general law.

Article VI, § 2, of the Louisiana Constitution states, in pertinent. part, that “a special legislative charter existing on the effective date of this constitution may be amended, modified, or repealed by local or special law.” Homer’s Charter is a special legislative charter as contemplated by La. Const. Art. VI, § 2. Therefore, if La. R.S. 33:4341 is a local law, as argued by Enter-gy, the Charter was amended to allow for 60-year franchises. Conversely, if La. R.S. 33:4341 is a general law, as argued by Homer, the Charter was not amended by the statute, and the Operating Agreement and Ordinance violate the Charter.

As noted by the Louisiana Supreme Court in Kimball v. Allstate Ins. |5 Co., 97-2885 (La.4/14/98), 712 So.2d 46, “the constitution does not give us much guidance as to the meaning of the terms ‘local’ and ‘special.’ ” Thus, the courts have looked to jurisprudence and legal commentary to define local, special and general laws. Id.; Polk v. Edwards, 626 So.2d 1128 (La.1993).

The ultimate distinction between general laws and local laws is that general laws affect the community as a whole and local laws affect private persons, private property or private or local interests. Deer Enterprises, LLC v. Parish Council of Washington Parish, 10-0671 (La.1/19/11), 56 So.3d 936; Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm’n, 94-2015 (La.11/30/94), 646 So.2d 885; Polk, supra; State v. Dalon, 35 La.Ann. 1141 (1883).

A statute is generally considered to be local if it operates only in a particular locality or localities without the possibility of extending its coverage to other areas should the requisite criteria exist or come to exist there. Deer Enterprises, supra; Kimball, supra; State v. Slay, 370 So.2d 508 (La.1979); State v. Labauve, 359 So.2d 181 (La.1978). When the operation of a law is limited to certain parishes, it is suspect as a local law. Deer Enterprises, supra; Kimball, supra; Labauve, supra. The mere fact, however, that a statute’s immediate application is limited to a particular locality does not alone render the statute a local law. Polk, supra; Slay, supra; Labauve, supra. Furthermore, a law is not local, even though its | ^enforcement may be restricted to a particular locality or localities, when the conditions under which it operates simply do not prevail in other localities. Deer Enterprises, supra; Kimball, supra; City of New Orleans v. Treen, 431 So.2d 390 (La.1983); Slay, supra; Labauve, supra. . Additionally, a law whose application and immediate effect is restricted to a particular locality is not considered local where persons throughout the state are affected by it or it operates on a subject in which the people at large are interested. Kimball, supra; Livingston Downs Racing Ass’n, Inc. v. State, 96-2890 (La.12/2/97), 705 So.2d 149; Louisiana Paddlewheels, supra; Polk, supra.

A statute that operates over the whole territory of the state, instead of just a particular locality, is a general statute. Deer Enterprises, supra; Kimball, supra; Polk, supra; Slay, supra. A general law operates equally and uniformly upon all persons brought within the relations and circumstances for which it provides or operates equally upon all of a designated class which has been founded upon a reasonable classification. Kimball, supra; Polk, supra; Treen, supra; Slay, supra; Labauve, supra. Thus, a law may be a general law, even though limited to one locality, if it is general in its terms and its coverage can extend to other areas should the requisite criteria exist there or if its operation is limited to a locality through the effect of a reasonable classification such as population, size or physical characteristics and not solely through the specific designation of a certain parish or parishes: Treen, supra; Labauve, supra.

La. R.S. 33:4341 states, in pertinent part, that:

|7A. Any municipality, the city of New Orleans excepted, or any parish or any other political subdivision or taxing district authorized to issue bonds under Article VI, Section 37, of the Constitution of Louisiana, all of which are hereinafter in this Subpart referred to as “municipality” or “parish”, may sell or lease any revenue-producing properties owned by it, including all proper franchises to operate the properties for a term not to exceed sixty years, provided the governing authorities have been first authorized to do so by a vote of a majority of the qualified electors, voting at an election held for that purpose as herein directed.

Applying the above principles, we conclude that La. R.S. 33:4341 operates as a local law rather than a general law and, therefore, amended Homer’s Charter pursuant to La. Const. Art. VI, § 2. The text of the statute itself states that the statute does not apply to the whole territory of the state, but is limited to certain localities. The statute specifically excludes the city of New Orleans, and La. Const. Art. VI, § 37, specifically excludes school boards as political subdivisions authorized to issue bonds. This limited application suggests that La. R.S. 33:4341 is a local law. The exception that a law is not local when the conditions under which it operates simply do not prevail in other localities does not apply to this case because other localities do own revenue-producing properties. Deer Enterprises, supra; Kimball, supra; Treen, supra; Slay, supra; Labauve, supra. The exception that a law is not local where persons throughout the state are affected by it or it operates on a subject in which the people at large are interested does not apply in this case because persons throughout the state are not affected by its application. Kimball, supra; Livingston Downs Racing Ass’n, Inc., supra; Louisiana Paddlewheels, supra; Polk, supra. Furthermore, La. R.S. 33:4341 affects private and local interests, not statewide interests. Deer Enterprises, supra; Louisiana Paddlewheels, supra; Polk, supra; Dalon, | ¡¡supra.

Additionally, the actions of both parties suggest that they operated under the assumption that La. R.S. 33:4341 amended the Charter. La. R.S. 33:4341 was enacted years before Homer and Entergy entered into the Operating Agreement. The Ordinance limits the term of the franchise to 60 years, which is the maximum term set forth in La. R.S. 33:4341. Although Homer argues that the franchise term should have been limited to 25 years, Homer did not file suit until the Operating Agreement had been in place for 30 years.

Accordingly, we find that the trial court did not err in denying Homer’s motion for summary judgment, granting Entergy’s motion for summary judgment and dismissing Homer’s claims. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court in favor of Entergy Louisiana, Inc., granting its motion for summary judgment, and against Town of Homer, denying its motion for summary judgment and dismissing its claims. Costs of appeal in the amount of $2,099 are assessed to Town of Homer.

AFFIRMED.

BROWN, C.J., dissents with written reasons.

BROWN, Chief Judge,

dissent.

| Louisiana Const. Art. 6, § 2 provides: The legislature shall provide by general law for the incorporation, consolidation, merger, and government of municipalities. No local or special law shall create a municipal corporation or amend, modify, or repeal a municipal charter. However, a special legislative charter existing on the effective | ¿date of this constitution may be amended, modified, or repealed by local or special law. (Emphasis added).

The town of Homer is a special legislative charter municipality created in 1850. Its Charter was amended in 1901 authorizing the town to grant a franchise, right-of-way or privilege to provide electric power to the town. The charter provided that the franchise could not be exclusive or for a term greater than 25 years. Contrary to the Charter, in 1977, the town granted an exclusive franchise to (Entergy) for a term of 60 years.

If La. R.S. 33:4341 is a local or special law, then it would have amended the Charter to allow an exclusive 60 year franchise. The plain language of the statute clearly shows that it is a general and not a local law. La. R.S. 33:4341 provides in part:

A. Any municipality, the city of New Orleans excepted, or any parish or any other political subdivision or taxing district authorized to issue bonds under Article VI, Section 37, of the Constitution of Louisiana, all of which are hereinafter in this Subpart referred to as “municipality” or “parish”, may sell or lease any revenue-producing properties owned by it, including all proper franchises to operate the properties for a term not to exceed sixty years, provided the governing authorities have been first authorized to do so by a vote of a majority of the qualified electors, voting at an election held for that purpose as herein directed. (Emphasis added).

In Kimball v. Allstate Ins. Co., 712 So.2d 46, 51 (La.1998), the supreme court stated that a local law:

Generally, a statute is considered to be local if it operates only in a particular locality or localities without the possibility of extending its coverage to other areas should the requisite criteria exist or come to exist there. (Emphasis added).

Further, the supreme court stated that a law “may be a general law even though limited to one locality if it is general in its terms and its Coverage can extend to other areas should the requisite criteria exist there as well or if its operation is limited to a locality through the effect of a reasonable classification such as population, size or physical characteristics and not solely through the specific designation of a certain parish or parishes.” Id.

In Deer Enterprises, LLC v. Parish Council of Washington Parish, 10-0671 (La.01/19/11), 56 So.3d 936, the Louisiana Supreme Court upheld an amendment to La. R.S. 26:583 that excepted from certain of its provisions “any parish with a population between forty thousand and forty-five thousand ...” Only five Louisiana parishes were within that exception. Plaintiff claimed that the amendment created a prohibited local or special law in regulation of trade, and the trial court agreed. Discussing Kimball and other cases, the supreme court reversed the trial court and concluded that the amendment created neither a “local” nor “special” law because its coverage could extent to other localities or areas. The court stated, 56 So.3d at 945:

Deer Enterprises argues § 583(C)(2) contains elements of both local and special laws, apparently contending the special interests involved are the affected localities. But this argument conflates the very different aims of the constitutional prohibition. Local laws are prohibited because they benefit certain localities; special laws are prohibited because they benefit special interests. The two are not equivalent. Although we do not reject the possibility that a sort of hybrid local and special law might exist, § 583(C)(2) is not that legislative anomaly. Although it operates “only in a particular locality or localities,” its effects are triggered by population shifts. Although it ostensibly confers a kind of privilege on portions of those localities, it does not benefit spe-. cial interests. In short, it is not an unconstitutional abuse of legislative power.

In Deer, the supreme court further stated that the amendment ^classified parishes, not individuals, according to population and the protections under La. Const. Art. I therefore did not apply. The court concluded, 56 So.3d at 946:

Because La. R.S. 26:583(0(2) applies to several, dissimilar parishes based on the changeable characteristic of the parishes’ populations, with the possibility of extending its coverage to other parishes, it is not a local law. Because it does not benefit special interests, it is not a special law.

The court also commented on the legislature’s intent as follows:

We recognize, of course, that a population classification may be used to mask an intent to target one locality. However, we do not concern ourselves with this legislative subterfuge when the purportedly local statute’s effects are general. The trial court in this matter found from the legislative history of § 583(C)(2) that it was “intentionally meant to be a local law for ... west Webster Parish,” and therefore determined it was a local law despite the fact that it also applies to Washington Parish. In so finding, the trial court apparently dismissed the law’s effects on other localities as incidental or unintended. However, a law that has general effects is not necessarily made local because it was drafted with one locality in mind. The fact that Washington Parish is the defendant in this matter, seeking to avail itself of the amendment’s exemption and preserve the wishes of Ward 3 to remain “dry,” obviously implicates interests beyond the locality that was the statute’s purported beneficiary. As we have explained, the amendment applies to five parishes presently but may extend its coverage in the future. Because the statute’s operation has general effects, we need not inquire into its legislative history to ascertain any underlying intent. 56 So.3d at 943. (Emphasis added).

The majority opinion held that the statute specifically excludes the city of New Orleans and, thus, does not apply to the whole territory of the state, but is limited to certain localities. Because of this limited application, the majority concludes that La. R.S. 33:4341 is a local law. This conclusion is simply wrong.

The statute’s operation has general effects, that is any municipality or | Bany parish or any other political subdivision or taxing district is authorized to issue bonds. It clearly has the possibility of extending its coverage to other areas. It is not a local or special law and does not amend the Town’s Charter.

The majority opinion makes a brief reference to estoppel. The 60-year franchise was not authorized and in fact was prohibited by the Charter. Estoppel may not be raised against a city based on the unauthorized or ultra vires acts of its agents.

      . Section 2 of Ordinance No. 653 states:
      Be it further ordained, etc., that the Town of Homer, Louisiana, grants and there is hereby granted to Louisiana Power & Light Company, its successors and assigns, hereinafter called "Company”, in addition to the rights and privileges presently enjoyed by the Company, a franchise, right, and privilege, for a period of sixty (60) years from the date of the adoption hereof, to supply electric power and energy throughout the Town of Homer, Louisiana, to the inhabitants therefore, or to any person, firm, or corporation, in such manner and from such sources as the said Company deems best, the right to acquire, construct, operate, and maintain such plants, structures, transmission lines, distribution systems, and equipment as may be useful or necessary for the generation, production, transportation, distribution, and/or sale of electric power and energy throughout the Town of Homer, Louisiana, and the right to erect, operate, and maintain poles, masts, supports, wires, cables, transmission lines, conduits, conductors, substations, distribution systems, and any and all other appliances useful or necessary for the transportation and/or distribution and/or sale of electric power and energy on, over, under, along, upon, and across all of the present and/or future streets, roads, highways, alleys, and public places of the Town of Homer, Louisiana, and the right to repair, replace, or remove same, or any portion thereof, and the right to connect any such transmission line or distribution system to any other transmission line or distribution system for the purpose of transporting electric power and energy into, through, or beyond the boundaries of the Town of Homer, Louisiana.

      . Because the parties in the case sub judice argue that La. R.S. 33:4341 is either a local law or a general law, and neither argues that the statute is a special law, we will not examine the jurisprudence on special laws.