author: PER CURIAM. WEIMER, J.,

text:
    STATE of Louisiana v. Reginald HARDY.
    No. 2014-KK-1569.
    Supreme Court of Louisiana.
    Nov. 21, 2014.
   PER CURIAM.

1, Granted. The State seeks supervisory relief from the trial court’s ruling that held the defendant’s two prior burglary convictions are not admissible as other crimes evidence under LSA-C.E. art. 404(B). The court of appeal denied writ. Under the given facts, we conclude the defendant’s two prior burglary convictions are admissible under LSA-C.E. art. 404(B). For reasons that follow, we reverse the ruling of the lower courts and remand this case for further proceedings.

Generally, courts may not admit evidence of other crimes, wrongs or acts of a criminal defendant in order to show that the defendant is a person of bad character who has acted in conformity therewith. LSA-C.E. art. 404(B). However,’ the State may introduce evidence of other crimes, wrongs or acts if it establishes an independent and relevant reason for its admissibility, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. LSA-C.E. art. 404(B). The evidence must tend to prove a material fact at issue or to rebut a defendant’s defense. State v. Martin, 377 So.2d 259, 263 (La. 1979).

The State bears the burden of proving that the defendant committed the other | ^crimes, wrongs or acts. State v. Galliano, 2002-2849, p. 2 (La.1/10/03), 839 So.2d 932, 933, per curiam, citing State v. Prieur, 277 So.2d 126, 130 (La.1973). Although a criminal defendant’s prior bad acts may be relevant and otherwise admissible under LSA-C.E. art. 404(B), the court must balance the probative value of the other crimes, against its prejudicial effect before the evidence can be admitted. LSA-C.E. art. 403. The probative value of the evidence must outweigh its prejudicial effect of unfair prejudice. Id.; State v. Galliano, 2002-2849, p. 3, 839 So.2d 932 at 933. Probative evidence of prior misconduct will be excluded only when it is unduly and unfairly prejudicial. State v. Germain, 433 So.2d 110, 118 (La.1983). The term “unfair prejudice,” refers to the capacity of relevant evidence to persuade the factfinder into declaring guilt on a ground different from proof specific to the offense charged. State v. Rose, 2006-0402, p. 13 (La.2/22/07), 949 So.2d 1236, 1244, citing Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997).

The defendant is charged with simple burglary of an uninhabited dwelling. Police discovered blood evidence on a window glass at the scene of the crime from which a DNA profile was constructed. The defendant was identified via a Combined DNA Index System (CODIS) search.

Simple burglary requires proof of specific intent that the perpetrator who made the unauthorized entry did so with the specific intent of committing a theft or other felony once inside. R.S. 14:62; State v. Ortiz, 96-1609, p. 16 (La.10/21/97), 701 So.2d 922, 932 (“The final key element of the crime of burglary is that the accused must have had the intent to commit a felony at the moment of entry.”); State v. Lockhart, 438 So.2d 1089, 1090 (La.1983) (“At the moment of the unauthorized entry, the actor must intend to commit a felony or theft therein”) Ordinarily, the State would have to prove at trial that the defendant entered the uninhabited dwelling lawith the specific intent to commit a theft therein. The evidence of the prior burglaries would show that the defendant did not enter the unoccupied residence for an innocent purpose. Rather, the evidence of the prior burglaries tends to show that the defendant entered the residence with the specific intent to steal.

We find evidence of defendant’s prior burglary convictions probative because they are sufficiently similar to defendant’s simple burglary charge and are substantially relevant to the question of whether he had the specific intent to commit a theft at the moment he allegedly broke the window (depositing his blood and DNA sample in the process) and entered the residence. Cf. State v. Lewis, 288 So.2d 348, 350 (La.1974). All three burglaries occurred within a half mile of each other, the houses were all unoccupied and entry was gained through the rear of the houses. The current offense was committed within eight days of one of the prior burglaries. In the first burglary conviction the defendant entered through a rear window and police found him in a bedroom searching through a dresser drawer. In the second burglary conviction, police found the defendant pushing a water heater • down the street in a shopping cart. Defendant admitted removing a water heater from the residence. The current burglary charge involves the theft of a stainless steel sink, ceiling fans and a shop vacuum.

We find the State has sustained its burden of proving an independent and relevant reason under LSA-C.E. art. 404(B) for the admission of the previous burglary convictions as other crimes evidence, and the admission of this other crimes evidence is not unduly prejudicial to the defendant. We conclude the trial court abused its discretion in finding the defendant’s prior convictions to be inadmissible under LSA-C.E. art. 404(B). Accordingly, the writ is granted. The judgments of the lower courts are reversed. The case is remanded to the trial court for further ^proceedings.

WEIMER, J., dissents and would grant and docket.

CLARK, J., dissents.

WEIMER, J.,

dissents and would grant and docket.

hi respectfully dissent from the per cu-riam insofar as it finds — without benefit of the record, without full briefing, and without oral argument by the parties — that the district court abused its discretion in denying the State’s motion to introduce at the defendant’s upcoming trial for simple burglary evidence of his two prior convictions for the same offense. Rather than summarily reverse, I would grant and docket this case in order to fully explore the issue presented and, in the process, to provide guidance to the lower courts in navigating the difficult arena of other crimes evidence.

The seminal case on the admissibility of other crimes evidence, State v. Prieur, 277 So.2d 126 (La.1973), was decided over forty-one years ago. Its application remains challenging to this day. In the present case, the trial court, the court most familiar with the facts and history of the case, ruled the evidence of defendant’s two prior burglary convictions inadmissible because the State failed to prove sufficient facts to demonstrate the other crimes evidence more probative than prejudicial and sufficiently unique and distinctive to merit introduction in connection with defendant’s current prosecution for simple burglary. The court of appeal, cognizant of the great discretion afforded the trial court in ruling on the admissibility 12of other crimes evidence, denied writs, explaining: “A review of the record, case law, and the State’s writ application, demonstrates that the trial court did not abuse its discretion in denying the admissions of the defendant’s previous convictions at trial.” Apparently, a majority of this court disagrees with the conclusions below, ostensibly because the offense for which defendant is currently being prosecuted, simple burglary, is a specific intent crime and the evidence of the prior burglaries committed by defendant “satisfies the State’s burden of proving specific intent,” notwithstanding that this defendant’s intent to commit the crime is not an element at issue in this case.

Since Prieur, this court has consistently treated the rule respecting the admissibility of other crimes evidence as a rule of exclusion. Under the long-settled and prevailing jurisprudence, evidence of another similar crime or act should be excluded unless the State meets certain criteria, one of which is that the other similar act or crime is relevant to a “real and genuine [matter in issue], and not one which the prosecution conceives to be at issue merely because of the plea of not guilty.” State v. Moore, 278 So.2d 781, 785 (La.1973) (on reh’g). Thus, a defendant’s plea of not guilty does not, contrary to the majority’s apparent ruling here, automatically open the door to admission of evidence relating to other similar acts.

lain this case, the defendant maintains that his defense to the current charge is that a burglary occurred, but not by his hand and, thus, intent is not a “real and genuine” matter in issue. Without addressing defendant’s argument in this regard, the majority peremptorily opines that the defendant’s prior burglary convictions are “sufficiently similar to defendant’s simple burglary charge” and “substantially relevant” to the issue of specific intent for admission because “[a]ll three burglaries occurred within a half mile of each other, the houses were all unoccupied and entry was gained through the rear of the houses.” However, it would seem a rare occasion, indeed, that a burglary would occur in an occupied property and an even rarer one in which the unauthorized entry would occur through the front door. The trial court recognized as much, opining that “neither of these two incidents [the prior burglaries] ... are sufficiently or uniquely similar” or “peculiarly distinctive enough ... to merit introduction.” Moreover, to reiterate, the defendant maintains that intent will not be a contested issue at trial and, thus, the other crimes evidence does not “tend to prove a material fact at issue or ... rebut a defendant’s defense,” which even the majority recognizes as a requirement for admissibility of other crimes evidence. Given these circumstances, I find it difficult to conclude, without the further study and deliberation that briefing, argument .and a considered opinion would provide, that the trial court abused its discretion in excluding the evidence, at least in the state’s case |4in chief. I would, therefore, grant the State’s writ application and docket the matter for briefing, argument, and an opinion.

CLARK, J., dissents.

hi respectfully dissent.

      . State v. Wright, 11-0141, p. 10-11 (La. 12/6/11), 79 So.3d 309, 316.

      . State v. Hardy, 14-0467 (La.App. 4 Cir. 7/21/14) (unpub'd writ denial).

      . State v. Hardy, No. 14-1569, Op. at 539 (La. Nov. 2014).

      . This is in sharp contrast to the federal approach, which deems Federal Rule of Evidence 404(b) "a rule of inclusion,” by which "evidence of a prior crime should be excluded only when its sole relevance goes to the character of the defendant.” United States v. Foster, 344 F.3d 799, 801 (8th Cir.2003) (internal quotation marks and citation omitted). Under the federal approach, a plea of not guilty would open the door to admission of evidence respecting other similar acts relevant to the essential element of specific intent required by the offense being tried. Id.

      . State v. Hardy, No. 14-1569, Op. at 539.

      . Id., at 538, citing State v. Martin, 377 So.2d 259, 263 (La. 1979).

      . If, as the trial unfolds, the defendant places intent at issue in some manner, the admission of other crimes evidence on rebuttal could be justified. See Prieur, 227 So.2d at 129 n. 2 ("If in the utterly unlikely event the defendant had injected such an issue [regarding knowledge and intent in the case of armed robbery], then only could the State conceivably have properly contended that such evidence was admissible in rebuttal to show knowledge or intent."). Otherwise, the state, in its case-in-chief, should be confined to other methods of proving the element of intent.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Gregory S. DUHY.
    No. 2014-B-2052.
    Supreme Court of Louisiana.
    Nov. 21, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|,This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Gregory S. Duhy, an attorney licensed to practice law in Louisiana.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history.

Respondent was admitted to the practice of law in Louisiana in 1982. Between 1990 and 1995, respondent was admonished by the disciplinary board on four occasions for failing to cooperate in disciplinary investigations. In February 1993, respondent consented to be publicly reprimanded by the board for failing to ^appear pursuant to a subpoena or otherwise comply with a lawful demand for information. In March 1993, respondent was admonished for neglecting a legal matter and failing to return a client’s file. In January 2002, respondent was admonished for neglecting a legal matter, making false statements to a client, and failing to timely file a client’s appeal.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the present proceeding.

UNDERLYING FACTS

Between November 2010 and September 2012, the ODC received three complaints against respondent. Respondent failed to submit a written response to the complaints, necessitating the issuance of a subpoena to obtain his sworn statement for each of the matters. Following the taking of the sworn statement in one of the matters, respondent failed to respond to the ODC’s request for additional documentation for an extended period of time.

DISCIPLINARY PROCEEDINGS

In September 2013, the ODC filed formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority) and 8.1(c) (failure to cooperate with the ODC in its investigation). Respondent answered the formal charges, wherein he primarily addressed the substantive issues of the complaints and apologized for his failures to respond to the complaints. The matter then proceeded to a formal hearing on the merits.

| ^Hearing Committee Report

After considering thé testimony ánd evidence presented at the hearing, the hearing committee made factual findings consistent with the underlying facts set forth above. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee further determined respondent knowingly violated a duty owed to the legal profession, causing actual and potential harm to the disciplinary system. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is suspension.

In aggravation, the committee found the following factors: a prior disciplinary record, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law (admitted 1982). In mitigation, the committee found personal or emotional problems and remorse.

After further considering the case law involving similar misconduct, the committee recommended respondent be suspended from the practice of law for one year and one day. The committee further recommended that all but two weeks of the suspension be deferred in light of respondent’s personal issues and remorse, and “the fact that he has indicated he now serves primarily as an assistant professor and is no longer generally in private practice such that similar disciplinary misconduct is not anticipated to occur in the future ...”

The ODC filed an objection to the leniency of the sanction recommended by the hearing committee.

_[4Disciplinary Board Recommendation

After reviewing the record, the disciplinary board adopted the factual findings and legal conclusions of the committee. The board also determined the committee correctly applied the Rules of Professional Conduct.

The board determined respondent knowingly violated a duty owed to the legal profession which resulted in actual injury to the legal profession and, more particularly, the disciplinary system. His failure to respond to lawful demands for information by the ODC necessitated a formal investigation and additional expenses which might not have been incurred had respondent simply cooperated. His conduct is all the more egregious considering that respondent has been admonished on multiple occasions and publicly reprimanded for engaging in similar misconduct. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension. The board adopted the aggravating and mitigating factors found by the committee.

After further considering the case law involving similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day, with all but three months deferred, subject to one. year of unsupervised probation. The board also recommended respondent be assessed with the costs and expenses of this proceeding. Two board members dissented and would recommend harsher discipline.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has |5been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

As a threshold matter, we note that the ODC did not charge respondent with practicing law while ineligible to do so or with any substantive misconduct in connection with the three underlying complaints. The only misconduct before the court is respondent’s failure to cooperate with the ODC in its investigation of the complaints.

The record of this matter supports a finding that respondent failed to cooperate with the ODC in three investigations. This misconduct amounts to a violation of the Rules of Professional Conduct as alleged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

We agree with the hearing committee and the disciplinary board that respondent acted knowingly and violated a duty owed to the legal profession. His conduct resulted in harm to the disciplinary system. We also agree that the | (¡baseline sanction is suspension. The record supports the aggravating and mitigating factors found by the committee and the board.

In the past, we have found that an attorney’s failure to cooperate with the ODC, standing alone, is sufficient to warrant a period of actual suspension. See, e.g., In re: Augustine, 97-1570 (La.9/26/97), 707 So.2d 1 (thirty-day suspension imposed upon an attorney who knowingly failed to cooperate with the ODC in two investigations), and In re: Boudreau, 03-1890 (La.12/3/03), 860 So.2d 1119 (six-month suspension imposed upon an attorney who failed to cooperate with the ODC in its investigation of a complaint filed against him; the attorney had recently been disciplined for similar misconduct, and. his continued failure to cooperate was therefore found to be “particularly egregious”).

The record reflects that respondent has a long history of disregarding his professional responsibilities. In fact, between 1990 and 1995, he was disciplined five times for failing to cooperate with the ODC. Nevertheless, he has continued to ignore his obligation to cooperate with the ODC as it investigates complaints of attorney misconduct. Without question, this pattern of misconduct qualifies as being “particularly egregious.”

Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for one year and one day, with all but three months deferred, followed by a one-year period of unsupervised probation.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Gregory S. Duhy, Louisiana Bar Roll number 1340, be and he hereby is suspended from the practice of law for one year and one day, with all but three months deferred, followed by a one-year period of unsupervised probation. The probationary period |7shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs, and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . In addition to prior discipline, respondent has been declared ineligible to practice law on numerous occasions for failing to comply with his professional obligations:
      June 1, 1992-July 9, 1992 Failure to pay bar dues
      September 30, 1994-November 4, 1994 Failure to pay bar dues
      September 6, 1995-October 4, 1995 Failure to pay bar dues
      October 1, 1996-October 30, 1996 Failure to pay bar dues
      September 2, 1997-October 2, 1997 Failure to pay bar dues
      September 4, 2001-September 10, 2001 Failure to pay bar dues and disciplinary assessment
      September 4, 2003-September 24, 2003 Failure to pay bar dues and disciplinary assessment
      September 11, 2006-September 28, 2006 Failure to pay bar dues and disciplinary assessment
      October 8, 2007-November 5, 2007 Failure to pay bar dues and disciplinary assessment
      September 29, 2007-February 13, 2008 Failure to attend mandatory CLE
      November 30, 2007-February 15, 2008 Failure to file a trust account registration statement
      October 1, 2008-October 13, 2008 Failure to pay bar dues and disciplinary assessment
      September 9, 2009-October 15, 2009 Failure to pay bar dues and disciplinary assessment
      September 10, 2010-September 30, 2010 Failure to file a trust account registration statement
      September 9, 2011-September 27, 2011 Failure to pay bar dues and disciplinary assessment; failure to file a trust account registration statement
      September 19, 2012-September 28, 2012 Failure to file a trust account registration statement
      September 19, 2012-October 1, 2012 Failure to pay bar dues and disciplinary assessment

      . Respondent’s home and office sustained damage as a result of Hurricanes Katrina and Isaac.


text:
    In re David Jack DOWELL.
    No. 2014-B-2038.
    Supreme Court of Louisiana.
    Nov. 21, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| TThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, David Jack Dowell, a disbarred attorney.

FORMAL CHARGES

By way of background, we disbarred respondent in October 2006 for misappropriating client and law firm funds, making misrepresentations to his client and law firm, neglecting a legal matter, and failing to cooperate with the ODC in its investigation. In re: Dowell, 06-1201 (La.10/6/06), 938 So.2d 994 (“Dowell I ”). Following his disbarment, respondent worked at his family’s locksmith business in Gretna, Louisiana, where he displayed a notary sign and provided notarial services. In December 2009, we suspended respondent from the practice of law for one year for continuing to act as a notary following his disbarment, in violation of La. R.S. 35:14, and for failing to cooperate with the ODC in its investigation. In re: Dowell, 09-1419 (La.12/18/09), 24 So.3d 203 (“Dowell II”). The effect of our judgment in Dowell II was to extend by one year the minimum period which must elapse before respondent was eligible to seek readmission to the practice of law.

Despite having already been disciplined for engaging in unlawful notarial work, respondent continued to engage in similar misconduct, as follows:

_|_2Count I

Attorney Gregory Marsiglia drafted a marriage contract for a client and advised the client of the importance of executing the marriage contract before his wedding. The client had respondent notarize the contract in November 2011, and the notarized marriage contract bears respondent’s notarial stamp with his name, address, and notarial commission number.

The next day, the client and his fiancée were married and left for their honeymoon. When the client returned from his honeymoon, he delivered the notarized marriage contract to Mr. Marsiglia so it could be properly recorded. When Mr. Marsiglia noticed that the names of the witnesses were missing, his employee called the Secretary of State’s office for respondent’s telephone number and learned respondent’s notarial commission had been revoked on October 20, 2006 as a result of his disbarment in Dowell I. Consequently, the client’s marriage contract was an absolute nullity.

In December 2011, Mr. Marsiglia filed a disciplinary complaint against respondent. Despite receiving notice of the complaint, respondent failed to respond, necessitating the issuance of a subpoena to obtain his sworn statement. During his May 15, 2012 sworn statement, respondent admitted that the notary sign was still hanging outside of his family’s locksmith business where he works and that no other licensed attorneys or notaries work at that location. He also acknowledged that the notarial signature and notarial stamp on the marriage contract appeared to be his. He claimed, however, that he was unaware he could not act as a notary public.

The ODC alleged that respondent’s conduct in violating La. R.S. 35:14 by continuing to act as a notary public following his disbarment and in failing to cooperate with the ODC’s investigation was a violation of the following provisions of the Rules of Professional Conduct: Rules 8.1(c) (failure to cooperate with the |sODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

Count II

On January 6, 2012, respondent notarized five subcontractor release of lien affidavits, releasing liens totaling $115,197. Attorney Daniel Ranson received the affidavits from his client in connection with a construction project. Knowing that respondent was disbarred, Mr. Ranson filed a disciplinary complaint against him with the ODC. During his May 15, 2012 sworn statement to the ODC regarding the complaint by Mr. Marsiglia, respondent also acknowledged that the notarial signature and notarial stamp on the five subcontractor release of lien affidavits appeared to be his. He again claimed that he was unaware he could not act as a notary public because of his disbarment but confirmed that he now understood he was not permitted to do so. Respondent also stated that he would update his primary registration address with the Louisiana State Bar Association, but he has failed to do so.

The ODC alleged that respondent’s conduct in violating La. R.S. 35:14 by continuing to act as.a notary public following his disbarment was a violation of the following provisions of the Rules of Professional Conduct: Rules 8.4(a) and 8.4(c).

Count III

Attorney Victoria Bartels represented Frank Venturelli in a proceeding against Gina Powell Boudreaux, the curator for Mr. Venturelli’s interdicted sister, involving actions taken by Ms. Boudreaux pursuant to a November 18, 2010 power of attorney. Ms. Bartels discovered that respondent had notarized the power of attorney but that his notarial commission had been revoked because of his 2006 | ¿disbarment. Ms. Boudreaux subsequently admitted that she had Mr. Venturelli’s sister sign the power of attorney at the hospital, had two of her employees witness the document, and took the document to respondent to notarize after-the-fact.

In November 2012, Ms. Bartels filed a disciplinary complaint against respondent. Despite receiving notice of the complaint, respondent failed to respond. On January 30, 2013, the ODC obtained photographic evidence that respondent continued to display a notary sign outside his family’s locksmith business where he works.

The ODC alleged that respondent’s conduct in violating La. R.S. 35:14 by continuing to act as a notary public following his disbarment and in failing to cooperate with the ODC’s investigation was a violation of the following provisions of the Rules of Professional Conduct: Rules 8.1(c), 8.4(a), and 8.4(c).

DISCIPLINARY PROCEEDINGS

In September 2013, the ODC filed formal charges against respondent. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After reviewing the ODC’s deemed admitted submission, the hearing committee found that the factual allegations in the formal charges were deemed admitted and proven by clear and convincing evidence. Based on these facts, the | .¡committee found that respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined respondent violated duties owed to his clients, the public, the legal system, and the legal profession. He acted knowingly and caused actual harm. Based on the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is disbarment.

In aggravation, the committee found a prior disciplinary record, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 1994). The committee did not find any mitigating factors present.

After considering respondent’s conduct in light of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E, as well as this court’s prior jurisprudence addressing similar misconduct, the committee recommended he be permanently disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation.

Disciplinary Board Recommendation

After review, the disciplinary board found that the factual allegations in the formal charges have been deemed admitted and proven. The board also found respondent’s claim that he was unaware he could not act as a notary public following his disbarment was not credible. The board determined the hearing committee correctly applied the Rules of Professional Conduct. Additionally, the board noted that respondent violated La. R.S. 35:14 by continuing to act as a notary public following his disbarment.

The board determined respondent knowingly, if not intentionally, violated duties owed to the public, the legal system, and the legal profession, which caused factual harm. Citing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is disbarment. The board also adopted the aggravating factors found by the committee and agreed that the record does not support any mitigating factors. Additionally, the board indicated that respondent’s failure to cooperate with the ODC’s investigations was an aggravating factor.

Turning to the issue of an appropriate sanction, the board determined that, taken as a whole, respondent’s continued misconduct despite the court’s previous orders in Dowell I and Dowell II, the serious harm caused by the misconduct, and respondent’s continued failure to cooperate with the ODC’s investigations constitute serious attorney misconduct. Guideline 9 of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E, states that permanent disbarment may be warranted for “[i]nstances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime.” Accordingly, the board recommended respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the disciplinary board’s report and recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § |711(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The record in this deemed admitted matter indicates that respondent continued to act as a notary public following his disbarment in Dowell I, in violation of La. R.S. 35:14, and following his suspension in Dowell II. He also failed to cooperate with the ODC in its investigations. As such, he has violated the Rules of Professional Conduct as charged.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

We agree with the disciplinary board’s assessment that respondent knowingly, if not intentionally, violated duties owed to the public, the legal system, and the legal profession, causing actual harm. We also agree respondent is not credible in claiming that he was unaware he could not act as a notary public following his disbarment, especially in light of our order in Dowell II. ^Furthermore, respondent continues to display a notary sign outside his family’s locksmith business despite confirming during his May 15, 2012 sworn statement to the ODC that he now understood he was not permitted to act as a notary public. The baseline sanction for this type of misconduct is disbarment.

In théir respective reports, the hearing committee and the disciplinary board have concluded respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar. We agree. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct that might warrant permanent disbarment. While these guidelines are not intended to bind our decision-making process, they present useful information concerning the types of conduct that may be worthy of permanent disbarment. For purposes of the instant case, Guideline 9 is relevant. That guideline details the following conduct:

GUIDELINE 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

Guideline 9 is applicable, as respondent’s current misconduct, taken as a whole, is serious attorney misconduct and was preceded by his disbarment in Dowell I for prior instances of serious attorney misconduct.

Respondent’s conduct demonstrates an egregious disregard for our prior orders disbarring and suspending him from the practice of law. In order to protect the public and maintain the high standards of the legal profession in this state, we find respondent should not be allowed the opportunity to return to the practice of law in the future.

| ¡Accordingly, we will adopt the board’s recommendation and permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of David Jack Dowell, Louisiana Bar Roll number 23041, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


author: DRAKE, J.

text:
    Curt ALONZO, Arthur Carter, Joseph L. Carter, Anthony Diggs, Kenneth Dilosa, Harold H. Grier, II, Calvin Henderson, Tyson Hollis, Warren Holmes, Stanley Lay, Larry Legania, Joshua Williams, and Willie Williams v. Warden Burl CAIN and The State of Louisiana through the Department of Public Safety and Corrections.
    No. 2014 CA 0172.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2014.
    Edwin M. Shorty, Jr., New Orleans, Louisiana, for Plaintiffs/Appellants Curt Alonzo, Arthur Carter, Joseph L. Carter, Anthony Diggs, Kenneth Dilosa, Harold H. Grier, II, Calvin Henderson, Tyson Hollis, Warren Holmes, Stanley Lay, Larry Lega-nia, Joshua Williams, and Willie Williams.
    Van A. Heard, Assistant Attorney General, Baton Rouge, Louisiana, for Defendants/Appellees Warden Burl Cain and State of Louisiana through the Department of Public Safety and Corrections.
    Before GUIDRY, THERIOT, and DRAKE, JJ.
   DRAKE, J.

|2The plaintiffs, inmates with the Louisiana Department of Public Safety and Corrections (“DPSC”), appeal a judgment of the district court, which sustained a dilatory exception raising the objection of improper cumulation of actions. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The thirteen plaintiffs in this case are currently housed at the Louisiana State Penitentiary in Angola, Louisiana. According to the original petition the plaintiffs filed with the 19th Judicial District Court in East Baton Rouge Parish in May 2011, the plaintiffs, while passengers in a prison-manufactured trailer known as a “hootenanny,” suffered injuries in an accident in which one of the multiple wheels came off the trailer while the plaintiffs were traveling across the grounds at Angola. Following the accident, the plaintiffs initiated the two-step Administrative Remedy Procedure (“ARP”), which is the formal grievance mechanism that all offenders committed to the custody of the Department of Corrections must use before they may proceed with a suit in federal or state court. See LAC 22:I.325(D)(1). In December 2011, the warden denied the plaintiffs’ requests on the first step review. In May 2012, the Secretary of the DPSC denied the plaintiffs’ requests on second step review, stating that neither the penitentiary nor the DPSC were liable for the accident and resulting injuries.

After the plaintiffs’ claims were denied under the ARP, the plaintiffs filed suit in the 19th Judicial District Court in East Baton Rouge Parish in August 2012. The State filed a declinatory exception raising the objection of improper venue and Ra dilatory exception raising the objection of improper cumulation of actions. Following a hearing, the 19th Judicial District Court granted the exception raising improper venue and transferred the case to the 20th Judicial District Court in West Feliciana Parish, but pretermitted ruling on the exception of improper cumulation of actions. Once the matter was docketed with the 20th Judicial District Court, the State filed a dilatory exception raising the objection of improper cumulation of actions. Following a hearing, the district court sustained the exception raising improper cumulation of actions and dismissed all but the first named plaintiff, Curt Alonzo, in a final judgment signed on December 4, 2013. The plaintiffs now appeal.

LAW AND DISCUSSION

The plaintiffs argue that the district court erred when it sustained the defendants’ exception raising improper cumulation of actions. The plaintiffs contend that the non-cumulation provision of the Louisiana Prison Litigation Reform Act (“PLRA”) only applies to the consolidation of claims relating to the “conditions of confinement of prisoners” and does not explicitly forbid consolidation of prisoner tort claims.

Improper Cumulation of Actions; Standard of Review

Cumulation of actions is the joinder of separate actions in the same judicial demand, whether by a single plaintiff against a single defendant, or by one or more plaintiffs against one or more defendants. La. C.C.P. art. 461. Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if there is a community of interest between the parties joined; each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; Land all of the actions cumulated are mutually consistent and employ the same form of procedure. La. C.C.P. art. 463. When the court lacks jurisdiction of, or when the venue is improper as to, one of the actions cumulated, that action shall be dismissed. La. C.C.P. art. 464.

The objection of improper cumulation of actions is raised through the dilatory exception and must be raised prior to answer or judgment by default. La. C.C.P. art. 926. A district court’s granting of a dilatory exception raising the objection of improper cumulation is a final judgment subject to a manifest error standard of review. Dietz v. Superior Oil Co., 13-657 (La.App. 3 Cir. 12/11/13), 129 So.3d 836, 839.

CARP and PLRA

The Louisiana State Legislature enacted the Louisiana Corrections Administrative Remedy Procedure (“CARP”), La. R.S. 1171 et seq., in 1985 in response to the Civil Rights of Institutionalized Persons Act, which provided standards for the voluntary development and implementation by states of a system for resolution of disputes and grievances raised by prisoners. Pope v. State, 99-2559 (La.6/29/01), 792 So.2d 713, 715. Louisiana Revised Statutes 15:1171 authorizes the DPSC or the sheriff to adopt, for the particular correctional institution, an administrative remedy procedure for receiving, hearing, and disposing of complaints and grievances by an “offender,” which arise while the offender is in custody. The administrative remedy procedure is the formal grievance mechanism that all offenders committed to the custody of the DPSC must use before they may proceed with a suit in federal or state court. LAC |522:1.325(D)(1). As originally enacted, La. R.S. 15:1171 encompassed “complaints and grievances,” without any reference to tort actions. Pope v. State, 792 So.2d at 715-16.

In 2002, the Louisiana Legislature amended La. R.S. 15:1177(A) to exclude tort claims from judicial review. See 2002 La. Acts, 1st Ex. Sess., No. 89, § 2. In amending the statute, however, the Legislature created a specific administrative remedy procedure for prisoner tort claims and reserved the right of a prisoner to file a tort suit in district courts for de novo review after he first exhausted the administrative remedy procedure for tort claims set forth in CARP. La. R.S. 15:1172. Thus, the plaintiffs properly sought administrative review of their tort claims, pursuant to the administrative procedure set forth in CARP, prior to filing their actions in district court.

Once an offender exhausts the administrative procedure pursuant to CARP, he may file a civil suit in district court pursuant to the Louisiana Prison Litigation Reform Act (“PLRA”), La. R.S. 15:1181 et seq. Louisiana Revised Statutes 15:1181(2)' defines a “civil action with respect to prison conditions” or a “prisoner suit” as:

Any civil proceeding with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include post conviction relief or habeas corpus proceedings challenging the fact or duration of confinement in prison.

Furthermore, La. R.S. 15:1184(F) states that:

The exclusive venue for delictual actions for injury or damages shall be the parish where the prison is situated to which the prisoner was assigned when the cause of action arose. Upon consent of all parties, the court may transfer the suit to a parish in which venue would otherwise be proper. [Emphasis added].

| (¡Regarding the cumulation of claims by prisoners, La. R.S. 15:1184(G) provides:

The actions of more than one prisoner may not be cumulated and a prisoner suit filed or prosecuted pro se may not assert a class action. If a suit names more than one plaintiff or asserts a pro se class action, the actions of any plaintiff, other than the first named plaintiff, shall be dismissed without prejudice. As to the claims dismissed pursuant to this Subsection, the filing of the suit shall not be considered an interruption of prescription for purposes of Civil Code Article 3468. [Emphasis added].

' The language of the non-cumulation provision contained in Section 1184(G) is clear that offenders may not cumulate actions or assert a class action against the State. This court has previously determined that an inmate may not seek judicial review of more than one ARP in the same petition for judicial review. See Jacobson v. Le-Blanc, 10-0986 (La.App. 1 Cir. 12/22/10), 2010 WL 5465398, at *2, writ denied, 11-0114 (La.1/13/12), 77 So.3d 971; McCoy v. Stalder, 99-1747 (La.App. 1 Cir. 9/22/00), 770 So.2d 447, 452; Lightfoot v. Staider, 97-2626 (La.App. 1 Cir. 12/28/98), 727 So.2d 553, 554-55.

The plaintiffs argue that the PLRA non-cumulation provision of La. R.S. 15:1184(G) does not explicitly forbid cumu-lation of prisoner tort claims, but only applies to claims related to the “conditions of confinement” of prisoners. However, La. R.S. 15:1184(G) must be read within the context of the PLRA. For example, La. R.S. 15:1184(F) specifically governs the venue for “delictual actions,” while Section 1182 governs any “civil action with respect to prison conditions” and Section 1188 refers to any “civil action by a prisoner seeking redress from a governmental entity.” Unlike other sections of the PLRA, the plain language of La. R.S. 15:1184(G) simply uses the term “action.” By broadly employing the term “action,” the Legislature did not limit the application of the non-cumulation provision of Section 1184(G) to any specific type of action or suit. Therefore, the plaintiffs’ argument, that the non-cumulation provision of Section 171184(G) applies only to claims related to the “conditions of confinement” of prisoners, is without merit.

DECREE

Based on the foregoing, the December 4, 2018 judgment of the district court, which sustained the dilatory exception raising the objection of improper cumulation of actions and dismissed all but the first-named plaintiff in this suit, Curt Alonzo, is hereby affirmed. All costs of this appeal are cast to the plaintiffs-appellants.

AFFIRMED.

      .Complaints and grievances for which an offender may seek formal review through the ARP include, but are not limited to: any and all claims seeking monetary, injunctive, declaratory or any other form of relief authorized by law and by way of illustration, includes actions pertaining to conditions of confinement, personal injuries, medical malpractice, time computations, even though urged as a writ of habeas corpus, or challenges to rules, regulations, policies or statutes, including grievances such as offender requests for accommodations under the Americans with Disabilities Act and for complaints of sexual abuse under the Prison Rape Elimination Act. LAC 22:I.325(D)(2).

      . We note that the defendants' exception raising improper cumulation of actions that was filed in the 19th Judicial District Court does not appear in the record, although the ruling on the motion is included in the record.

      . The plaintiffs filed a motion for written reasons for judgment. The district court denied the motion as untimely pursuant to La. C.C.P. art. 1917(A).

      . See 42 U.S.C. §§ 1997-1997j (1980).

      . An "offender” means an adult or juvenile offender who is in the physical or legal custody of the Department of Public Safety and Corrections, a contractor operating a private prison facility, or a sheriff when the basis for the complaint or grievance arises. Any subsequent event, including posttrial judicial action or release from custody, shall not affect status as an "offender” for the purposes of this Part. La. R.S. 15:1174(2).

      . Pursuant to the 2002 amendments to La. R.S. 15:1172 and 1177 (2002 La. Acts, 1st Ex. Sess., No. 89 § 2), the district courts do not function as courts of review (limited to a review of the CARP record), but as courts of original jurisdiction. However, this does not relieve the prisoner from first filing an administrative claim (via CARP) pursuant to La. R.S. 15:1172. See Dickens v. Louisiana Correctional Institute for Women, 11-0176 (La. App. 1 Cir. 9/14/11), 77 So.3d 70, 73 n. 1.


text:
    BOES IRON WORKS, INC. v. M.D. DESCANT, INC., National Fire Insurance Co. Of Hartford, City of Baton Rouge, Parish of East Baton Rouge, and Smith Tipton Bailey Parker, Architects, APAC.
    No. 2014 CA 0270.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2014.

      H. Minor Pipes, III, David A. Becker, New Orleans, Louisiana, Attorneys for Plaintiff/Appellee, Boes Iron Works, Inc.
    Andrew Blanchfield, Stephen R. Wilson, Mary Anne Wolfe, Virginia J. McLin, Baton Rouge, Louisiana, Attorneys for Defendant/Appell'ee, Smith Tipton Bailey Parker, Architects, APAC.
    Russel W. Wray, St. Francisville, Louisiana, Attorney for Defendants/Appellees, M.D. Descant, Inc. and National Fire Insurance Co. of Hartford.
    Richard B. Nevils', Sr. Special Assistant Parish Attorney, Mary Roper, Parish Attorney, Baton Rouge, Louisiana, Attorneys for Defendant/Appellant, City of Baton Rouge, Parish of East Baton Rouge.
    Before GUIDRY, THERIOT, and DRAKE, JJ.
   DRAKE, J.

| ¡jThis case involves a claim for indemnity by the City of Baton Rouge/Parish of East Baton Rouge (“City/Parish”) against architects Smith Tipton Bailey Parker, APAC (“Smith Tipton”) related to a construction project. The original suit was filed by Boes Iron Works (“Boes”), a subcontractor on the project. The City/Parish answered the petition of Boes, wherein the City/Parish stated that it may have a potential indemnity claim against Smith Tipton. Smith Tipton filed a motion for summary judgment and exception of prescription against Boes, which the district court granted and dismissed Smith Tipton from the litigation, with prejudice. The City/Parish later filed a petition for declaratory judgment, seeking to reserve a right for indemnity against Smith Tipton. Smith Tipton filed an exception of peremption, which the trial court granted and dismissed Smith Tipton, with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This matter arose out of the construction of a public project, the Louisiana Arts and Science Center Planetarium and Space Theater in Baton Rouge, Louisiana. The City/Parish engaged Smith Tipton to design the project. The City/Parish then entered into a contract with M.D. Descant, Inc. (“Descant”) to construct the facility. Descant entered into a written subcontract with Boes to provide certain structural steel and metal work.

The instant lawsuit was initiated when Boes filed a petition for concursus and for damages, including the special damages of statutory attorney’s fees, on May 28, 2004. Boes claimed that it was entitled to extra compensation for work performed beyond that included in its bid price because of, among other things, alleged deficiencies in the construction plans prepared by Smith Tipton. On July 28, 2004, the City/Parish answered Boes’s petition and included the following language in paragraph 90 of its answer:

|3[City/Parish] expressly claims that [at] all times it relied on the advice and counsel of its architect, [Smith Tipton] ... In the event and only in the event that there should be any Judgment whatsoever rendered against the [City/Parish] that the said respondent expressly claims indemnity and contribution from the above named architect and contractor.

The City/Parish did not file a cross-claim or any other incidental demand against Smith Tipton regarding any potential indemnity claims.

On June 4, 2012, Smith Tipton filed a peremptory exception of prescription and motion for summary judgment to dismiss Boes’s claims against Smith Tipton. In a judgment signed November 26, 2012, the district court sustained the exception, granted the motion for summary judgment, and dismissed Smith Tipton, with prejudice, from the lawsuit.

On June 28, 2013, the City/Parish filed a petition for declaratory judgment in which it sought to have the district court recognize the right of the City/Parish to bring an indemnity claim against Smith Tipton should liability be found against the City/Parish after the trial of Boes’s claim for damages. The petition for declaratory judgment did not name any defendants, but the City/Parish requested that Boes, Descant, National Fire Insurance Company of Hartford, and Smith Tipton be served.

Although no longer a party to the suit, and not named as a defendant, Smith Tip-ton filed a peremptory exception raising the objection of peremption on July 24, 2013, in response to the City/Parish’s petition for declaratory judgment. Smith Tipton argued that the declaratory judgment filed by the City/Parish was untimely under the five-year peremptive period for architects. Following a hearing, the ^district court sustained the exception of peremption in a judgment signed November 6, 2013. The City/Parish now appeals.

LAW AND DISCUSSION

The City/Parish contends that the district court erred in finding that the indemnity claim of the City/Parish is perempted under La. R.S. 9:5607. The City/Parish argues that Smith Tipton had sufficient notice of the indemnity claim, and as a result, suffered no prejudice. The City/Parish avers that it should be allowed to amend the language of Paragraph 90 of its original answer to conform with the procedural requirements of a cross-claim because the City/Parish is not adding new parties or causes of action to its claim for indemnity. The City/Parish further argues that its amendéd pleading should relate back to its original answer to avoid peremption of the claim.

Smith Tipton counters that the City/Parish’s original answer does not constitute a proper cross-claim because the answer does not meet the mandatory pleading requirements of a cross-claim pursuant to the Louisiana Code of Civil Procedure. See La. C.C.P. arts. 1071-73. Furthermore, any indemnity action against Smith Tipton is now perempted.

Peremption

Peremption is a period of time fixed by law for the existence of a right. The right is extinguished upon the expiration of the peremptive period. La. C.C. art. 3458. When the peremptive period has run, the cause of action itself is extinguished unless timely exercised. State Through Div. of Admin. v. McInnis Bros. Const., 97-0742 (La.10/21/97), 701 So.2d 937, 939. Peremption may not be renounced, interrupted, or suspended. La. C.C. art. 3461.

Peremption is considered a peremptory exception. La. C.C.P. art. 927. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261, 1267. IsPeremption has been likened to prescription; namely, it is prescription that is not subject to interruption or suspension. See Flowers, Inc. v. Rausch, 364 So.2d 928, 931 (La.1978). As such, the following rules governing the burden of proof as to prescription apply to peremption.

If prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Carter, 892 So.2d at 1267. If evidence is introduced at the hearing on the peremptory exception of prescription, the trial court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Id. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Straub v. Richardson, 11-1689 (La. App. 1 Cir. 5/2/12), 92 So.3d 548, 552-53, writ denied, 12-1212 (La.9/21/12), 98 So.3d 341, cert. denied, — U.S. -, 133 S.Ct. 1805, 185 L.Ed.2d 811 (2013).

Louisiana Revised Statutes 9:5607(A) establishes a five year peremptive period for claims against professional architects. The statute provides, in pertinent part:

No action for damages against any professional engineer, surveyor, engineer intern, surveyor intern, or licensee as defined in R.S. 37:682, or any professional architect, landscape architect, architect intern, or agent as defined in R.S. 37:141, or professional interior designer, or licensee as defined in R.S. 37:3171, or other similar licensee licensed under the laws of this state, or real estate developer relative to development plans which have been certified by a professional engineer or professional architect, whether based upon tort, or breach of contract, or otherwise arising out of an engagement to provide any manner of movable or immovable planning, construction, design, or building, which may include but is not limited to consultation, planning, designs, drawings, specifications, investigation, evaluation, measuring, or administration related to any building, construction, demolition, or work, shall be brought unless filed in a court of competent jurisdiction and proper venue at the latest within five years from:
(1) The date of registry in the mortgage office of acceptance of the work by owner; or
|fi(2) The date the owner has occupied or taken possession of the improvement, in whole or in part, if no such acceptance is recorded; or
(3) The date the person furnishing such services has completed the services with regard to actions against that person, if the person performing or furnishing the services, as described herein, does not render the services preparatory to construction, or if the person furnishes such services preparatory to construction but the person furnishing such services does not perform any inspection of the work. (Emphasis added.)

The statute applies to all actions against an architect arising out of its services, which includes the City/Parish’s claim for indemnity. See Ebinger v. Venus Const. Corp., 08-379 (La.App. 3 Cir. 10/1/08), 995 So.2d 1224. In this case, the acceptance of the work was filed into the public record on May 29, 2003. Pursuant to La. R.S. 9:5607(A)(1), the five year per-emptive period began to run on May 29, 2003. Thus, any claim against Smith Tip-ton was perempted in May 2008, five years after the acceptance of the work was recorded in the public record. Here, the City/Parish filed its petition for declaratory judgment on July 1, 2013, seeking to preserve its claims for indemnity against Smith Tipton; however, this is clearly outside of the five year peremptive period set forth in La. R.S. 9:5607.

Cross Claim

The City/Parish argues its original answer to Boes’s petition was sufficient to preserve or give notice of an indemnity claim against Smith Tipton. Smith Tipton counters that the City/Parish’s original answer is not a valid cross-claim and ignores the mandatory pleading rules set forth by the Louisiana Code of Civil Procedure that apply to a cross-claim. Smith Tipton further argues that the City/Parish makes this argument in an attempt to avoid the five year peremptive period set forth by La. R.S. 9:5607.

The procedure for instituting a demand incidental to the principal demand against an adverse party, a co-party, or a third person is set forth in the Louisiana Code of Civil Procedure. Cross-claims are incidental actions. La. C.C.P. art. |71031(B). A cross-claim instituted by a defendant may be commenced by a petition or incorporated in an answer to the principal demand; if brought in the answer, the caption of the answer must indicate the dual character of the combined pleading. La. C.C.P. art. 1032.

Louisiana Code of Civil Procedure article 1071 provides:

A party by petition may assert as a cross-claim a demand against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or a reconventional demand or relating to any property that is the subject matter of the original action. The cross-claim may include a demand that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of the demand asserted in the action against the cross-claimant.

Furthermore, La. C.C.P. art. 1072 provides:

The petition in a cross-claim shall be served on the co-party in the manner prescribed by La. C.C.P. art. 1314.

Louisiana Code .of Civil Procedure article 1314 provides:

A. A pleading which is required to be served, but which may not be served under Article 1313, shall be served by the sheriff by either of the following:
(1) Service on the adverse party in any manner permitted under Articles 1231 through 1266.
(2)(a) Personal service on the counsel of record of the adverse party or delivery of a copy of the pleading to the clerk of court, if there is no counsel of record and the address of the adverse party is not known.
(b) Except as otherwise provided in Article 2293, service may not be made on the counsel of record after a final judgment terminating or disposing of all issues litigated has been rendered, the delays for appeal have lapsed, and no timely appeal has been taken.
B. Personal service on a partner or office associate of a counsel of record, including a secretary, receptionist, legal staff, administrative staff, or paralegal in the employ of the counsel of record, at the office address of record of the counsel of record shall constitute valid service under Paragraph A of this Article.

Based on the Louisiana Code of Civil Procedure, in order for a party’s claim to be viable, a litigant must actually file a cause of action, name a defendant to the cause of action, serve the defendant with the cause of action, and pray for relief. The City/Parish’s answer did not contain a caption identifying a cross-claim; did | snot contain sufficient fact allegations; did not include a prayer for relief against Smith Tipton; and was not served on Smith Tip-ton. The pleading was insufficient to constitute a valid claim against Smith Tipton.

We also note that paragraph 90 of the City/Parish’s original answer to Boes’s petition, which specifically pleads indemnity, is sufficient in form as an affirmative defense. See La. C.C.P. arts. 1003 and 1005. The City/Parish’s attempt to have the court treat this affirmative defense as a cross-claim or. some other incidental demand is not allowed under the Code of Civil Procedure. Comment (f) of the 2008 comments to La. C.C.P. art. 1005 states that an affirmative defense cannot be used in the place of an incidental demand, since it must allege a demand for relief and meet the requirements of La. C.C.P. arts. 891-93,1032,1034-35, and 1314.

The City/Parish contends that Smith Tipton had notice of the potential for an indemnity claim, despite the procedural failures and form of the claim. However, as discussed above, sufficiency of notice and prejudice are not proper inquiries in this circumstance. Furthermore, contrary to the City/Parish’s assertions regarding notice, Smith Tipton has never received any formal or procedural^ proper notice of an actual indemnity claim being made against it. Therefore, the City/Parish’s original answer to Boes’s petition was insufficient to preserve or give notice of an indemnity claim against Smith Tipton.

Amendment; Relation Back

Finally, the City/Parish requested that it be allowed to amend its original answer to Boes’s petition, despite peremp-tive bars, to properly assert a cross claim against Smith Tipton so that the amended answer would relate back to the filing of the original answer, thus, preserving its claim. Smith Tipton argues that an amended pleading cannot relate back to the original pleading to revive a perempted cause of action. Based on well-settled Louisiana law, we agree.

LWhen an action or defense in an amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing of the original pleading. La. C.C.P. art. 1153. However, it is well settled that an amendment cannot relate back when a cause of action is extinguished by peremption. See Naghi v. Brener, 2008-2527 (La.6/26/09), 17 So.3d 919, 924-26. If a cause of action no longer exists after the termination of a peremptive period and any right to assert the claim is destroyed, there is nothing to which an amended or supplemental pleading filed after the peremptive period has expired can relate back.

Therefore, in this case, because the original petition filed by the City/Parish did not include an indemnity claim, and the peremptive period in which to bring an indemnity claim against Smith Tipton has expired, an amended petition filed well after the expiration of the peremptive period cannot relate back to the original, timely filed petition. See Naghi v. Brener, 17 So.3d at 925-26.

DECREE

Considering the foregoing, the November 6, 2013 final judgment of the district court, which sustained Smith Tipton’s peremptory exception raising the . objection of peremption, is affirmed. All costs of this appeal, in the amount of $5,702.00, are assessed to Defendant/Appellant, the City of Baton Rouge/Parish of East Baton Rouge.

AFFIRMED.

      . Smith Tipton also asserted the dilatory exception raising the objection of prematurity and the peremptory exception raising the objections of no cause of action and nonjoinder of a necessary party. See La. C.C.P. arts. 926-927. Another defendant in this suit, Descant, responded to the exceptions filed by Smith Tipton and argued that the district court should allow the City/Parish's procedurally deficient cross-claim and further allow the City/Parish to amend its cross-claim in order to conform with procedural formalities.

      . See La. R.S. 9:5607.


author: WHIPPLE, C.J.

text:
    STATE of Louisiana v. G’Quan BAKER.
    No. 2014 KA 0222.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2014.

      Hillar C. Moore, III, Cristopher J.M. Casler, Baton Rouge, LA, for Appellee, State of Louisiana.
    Margaret Smith Sollars, Thibodaux, LA, for Defendant/Appellant, G’Quan Baker. G’Quan Baker, Angola, LA, pro se.
    Before WHIPPLE, C.J., McCLENDON and HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

| ¡.The defendant, G’Quan Baker, was charged by grand jury indictment with three counts of second degree murder, violations of LSA-R.S. 14:30.1 (counts 1, 3, and 4), and one count of attempted second degree murder, a violation of LSA-R.S. 14:27 and LSA-R.S. 14:30.1 (count 2). After the defendant pled not guilty, a sanity commission was ordered, which found him competent to stand trial. A motion to quash the indictment was filed in light of the United States Supreme Court’s recent ruling in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The trial court, however, denied the motion. Following a jury trial, he was found guilty as charged on all counts. A motion to stay sentencing was filed by the defendant in light of Miller. In a previous writ application, this court ruled that the trial court erred in staying the defendant’s sentencing indefinitely, and the- matter was remanded to conduct a sentencing hearing in accordance with Miller. On remand, for counts 1, 3, and 4, the defendant was sentenced to life imprisonment at hard labor, with eligibility for parole consideration after thirty-five years; and for count 2, he was sentenced to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence. The trial court ordered all sentences to run concurrently with each other, and the defendant was given credit for time served. He now appeals, urging one counseled assignment of error and three pro se assignments of error. For the following reasons, we affirm the defendant’s convictions and sentences on all counts.

\ STATEMENT OF FACTS

On the night of June 29, 2011, Angela Jarvis was driving home to the Elmgrove Garden Apartments in Baton Rouge. Her friend, Ashley London, age 19, was in the front passenger seat. Along the way back to the apartment, Angela noticed an older model SUV traveling in the opposite lane, and the two drivers looked at each other before Angela continued her drive home. As she turned right onto Fairchild Street, Angela looked in her rearview mirror, and noticed the SUV had turned around and was following her. When she pulled into a parking space at the apartment complex, someone from the SUV fired a gunshot into the back window of Angela’s vehicle. Eventually, an individual (later identified as the defendant) exited from the front passenger seat of the SUV, allowing Angela to observe his face through the driver’s-side mirror of her vehicle. In the meantime, Ashley attempted to exit the car, but the defendant approached and shot her. Angela heard the driver of the SUV tell the defendant to “[g]et both of them.” Angela “played dead” and remained as motionless as possible. The defendant ultimately left without shooting her. However, Ashley sustained two gunshot wounds, and eventually died as a result of a perforated left lung and heart.

Angela later spoke with the police at the Violent Crimes Unit. She described the gunman as being younger than the driver and “dark skinned.” In the weeks that followed the murder, Baton Rouge City Police Homicide Detective Chris Rudy presented Angela with three photographic lineups, but each time she was unable to identify the shooter.

On the day after the Elmgrove Garden Apartment shooting, Detective Rudy spoke with Dedrick Watson, a witness to the shooting. Watson informed Detective Rudy that he was sitting on his back balcony, when he noticed a white Jeep pull in behind Angela’s vehicle. Watson informed Rudy that “he came out shooting.” 14Watson stated that during this time, Angela was standing outside of her vehicle, and then ran inside her house when the shooting began. Next, Watson heard the driver of the white vehicle say “[l]et’s go,” the shooter returned to the vehicle, and the two left. However, Watson was unable to provide any details regarding the identity of the shooter.

On the early morning of July 29, 2011, detectives with the Baton Rouge City Police Department responded to a crime scene near the 9100 block of Kingfisher Avenue. Upon their arrival, detectives found a Ford Explorer near the railroad tracks. Inside the vehicle, which was still running, were Jessica Parker, age 25, in the driver seat, and Kevin Bowie, age 32, in the front passenger seat, both dead from multiple gunshot wounds. Each victim was shot multiple times. Jessica was shot six times to her head, neck, and extremities, while Kevin was shot eleven times to his head and neck. At least nine spent casings were found in the Explorer, eight of which were 9mm caliber and one which was a .25 auto caliber.

Detective Elvin Howard of the Baton Rouge City Police Department homicide division was the lead detective at the scene and located a potential witness, Robin Johnson. After speaking with Johnson, the defendant was identified as a suspect in the Kingfisher Avenue murders. Detective Howard later received a tip that the murder weapon was sold to a juvenile named Darion Burkes in Pointe Coupee Parish. Detective Howard was eventually able to retrieve the weapon, a Ruger P85 9mm pistol.

Detective Howard also learned that the defendant was due for a random drug test at the juvenile detention center. The defendant was picked up by two other Baton Rouge City Police Homicide detectives, and was subsequently transferred to the parish prison for booking before being sent to the juvenile detention center. The retrieved 9mm casings were all traced to the Ruger P85 pistol sold to Burkes.

| ¿Robin Johnson was a friend of the defendant and allowed him to stay at her house. On July 28, 2011, Robin was with the defendant and his brother, Preston Nelson. At approximately 10:00 p.m., the two dropped her off at her home and left in a white Ford Explorer. The next time Robin saw the two was the next morning around 3:30 a.m. Robin indicated that when they returned, both the defendant and Nelson had guns and Robin indicated that “G’Quan was smiling.” Specifically, the defendant had a 9mm [handgun], and upon his return to Robin’s house, he “[p]ut [the 9mm handgun and Nelson’s gun] on the table and cleaned them off.” The defendant and Nelson then left, but Robin spoke with the defendant on the following Saturday. The defendant explained to Robin that they gave Kevin Bowie three Xanax bars and that “they got him.” The defendant admitted to Robin that he was riding in the car with Kevin Bowie, who was in the front seat, and that he killed Kevin Bowie. Lastly, Robin identified the Ruger handgun as the one she saw the defendant with on July 29, 2011.

Detective Howard provided Detective Rudy information about the defendant being a possible suspect in the murder of Ashley London. Detective Rudy then presented Angela with a photographic lineup which included the defendant’s picture, and she identified him as the SUV passenger and shooter. Additionally, through another photographic lineup, she was able to identify Preston Nelson as the driver of the SUV. Detective Rudy then arrested both suspects.

COUNSELED ASSIGNMENT OF ERROR NO. 1

In his sole counseled assignment of error, the defendant claims that the trial court erred in denying his motion to quash the indictment. Specifically, he argues that the United States Supreme Court’s ruling in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 2475, 183 L.Ed.2d 407 (2012) declared the mandatory penalty | ^provision found in LSA-R.S. 14:30.1 invalid and, therefore, he, as a juvenile, could not be sentenced to life in prison as an adult without the possibility of parole for second degree murder in district court.

In Miller, the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme which mandates life in prison without possibility of parole for juvenile offenders. Miller does not, however, establish a prohibition against life imprisonment without possibility of parole for juvenile homicide offenders in every case, but rather requires a sentencing court to consider the offender’s youth and attendant characteristics as mitigating circumstances before deciding to impose the harshest possible penalty for juveniles. Miller, — U.S. -, 132 S.Ct. at 2467-69; State v. Graham, 2011-2260 (La.10/12/12), 99 So.3d 28, 29 (per curiam). Citing Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (“A State is not required to guarantee eventual freedom,” but must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”), the Miller Court stated that too great- a risk of disproportionate punishment is created by making youth irrelevant to imposition of the harshest prison sentence. Miller, — U.S. -, 132 S.Ct. at 2469. The Court further indicated that the Graham decision was sufficient to decide the case, and it did not consider the alternative argument that a categorical bar on life without parole for juveniles was required. Miller, — U.S. -, 132 S.Ct. at 2469. The Court further held that although it was not foreclosing the sentencer’s ability to make that determination in homicide cases, it did require the trial court to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. Miller, — U.S. at -, 182 S.Ct. at 2469. Following Miller, the Louisiana legislature enacted LSA-C.Cr.P. art. 878.1 and LSA-R.S. 15:574.4(E), both of which provide procedural guidelines for parole eligibility regarding offenders who commit first or second degree murder when they are under the age of eighteen years.

Statutes are presumed to be valid and the constitutionality of a statute should be upheld whenever possible. State v. Thomas, 2004-0559 (La.1/19/05), 891 So.2d 1288, 1235. In the instant case, the defendant attempts to impermissibly extend Miller’s holding. Contrary to his allegations, Miller does not invalidate LSA-R.S. 14:30.1, nor does it' prohibit prosecution or deprive the district court of its jurisdiction over an offender under the age of eighteen years. Instead, Miller’s sole holding was to prohibit a “sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders” without first considering certain attendant and mitigating characteristics. Miller, — U.S. -, 132 S.Ct. at 2469.

As noted by the Louisiana Supreme Court:

Miller deals exclusively with sentencing and does not pertain to criminal trial procedures leading to conviction. It focuses solely on accuracy in sentencing and does not address or impinge on the accuracy of a juvenile defendant’s conviction for a homicide offense.

State v. Tate, 2012-2763 (La.11/5/13), 130 So.3d 829, 840, cert denied, — U.S. -, 134 S.Ct. 2663,- 189 L.Ed.2d 214 (1014).

Moreover, if Miller invalidated the penalty provision found in LSA-R.S. 14:30.1, our Louisiana Supreme Court has previously held that the invalidation of a penalty provision does not render an entire statute unconstitutional. In State v. Drew, 360 So.2d 500, 507-08 (La.1978), cert denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979), the Louisiana Supreme Court held that, although the death sentence was excessive punishment for aggravated rape in light of the United |sStates Supreme Court’s decision in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), the invalidity of the death penalty provision “does not render invalid the entire statute.” Furthermore, in State v. Burge, 362 So.2d 1371, 1375 (La.1978), the defendant argued that his allegedly unconstitutional aggravated rape and aggravated kidnapping penalties should preclude a juvenile from being tried in district court in light of Coker. The Louisiana Supreme Court denied the defendant’s contention, stating that “we have consistently held that although the death penalty may be unconstitutional, the prosecution for the offense is nonetheless valid.” Burge, 362 So.2d at 1375. While these cases concern the death penalty, their principle and rule of law apply to the instant case. Therefore, even though Miller may have invalidated the penalty provision found in LSA-R.S. 14:30.1, the State continued to have the right to prosecute the instant defendant in district court pursuant to Article 305 of the Louisiana Children’s Code.

With regard to the issue of sentencing, the Miller Court enumerated the individual circumstances of a juvenile defendant which would be pertinent for consideration by a sentencing court: consideration of his chronological age and its hallmark features — among them immaturity, impetuosity, and failure to appreciate risks and consequences; the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional; the circumstances of the offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him; whether he might have been charged and convicted of a lesser offense if not for incompeten-cies associated with youth — for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys; and the possibility of rehabilitation when the circumstances suggest it. See Miller, — U.S. at -, 132 S.Ct. at 2468.

|flOn remand from this court, the trial court, noting its obligation to comply with Millet’s mandates, and after reviewing the previously ordered pre-sentence investigation report, stated:

In essence, the court is required to balance two theoretical measures of sanction and punishment, that of the juvenile standards of sanction, as well as that of an adult standard. In its ascertainment of an appropriate sentence, I have reviewed for this record the following code provisions of Louisiana law: the Louisiana Code of Criminal Procedure Article 879, regarding determinant sentencing factors; the Louisiana Code of Evidence; the Louisiana Code of Criminal Procedure Article 894.1, sentencing guidelines and recommendation; Louisiana Children’s Code Article 901, Dispositive or Disposition Guidelines; and various literature to include a recent publication by writers of Visser and Shook. This is a journal article entitled [“jSupreme Court’s Emerging Jurisprudence on the Punishment of Juveniles: Legal and Policy Implications.!”] I have further reached this conclusion, I have weighed the following evidence presented at this hearing, which was recessed to afford the defendant additional opportunity to put on further mitigating mental health issues before the court. I have considered the following factors: the defendant’s age at the time of the commission of [the] offense; his childhood circumstances; his family circumstances; I have considered the significant history and the weight of the mental health evidence that was presented; I have listened attentively to the victims’ family, each and every one of them; I have listened to the testimony of the Honorable Judge Pam Taylor Johnson of the juvenile court; the medical testimony of the witnesses; and the record that was established before me. All of the evidence that I have heard adduced at this hearing supports that G’Quan Baker came to us as a crack baby. His mother is largely responsible, directly, for his health, and what Judge Johnson concluded amounted to a child who, at the age of 14, had become a ticking time bomb. And the only thing that we can concern [sic] with was that he would, at some point in time, explode, and he did just that. He exploded into the lives of these families with such violent conduct and actions that, in most instances, would warrant the most severe punishment that the law prescribes. Our law has determined that the execution of a person for this age and .conduct is not contemporary with today’s philosophical approach toward American values.

|inOn counts 1, 3, and 4, the trial court sentenced the defendant to life imprisonment at hard labor, and stated, “[t]he defendant is eligible for parole consideration after 35 years.” On count 2, the trial court sentenced the defendant to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence. The court ordered that the sentences run concurrently with each other. The defendant concedes he was sentenced in accordance with , Miller. Further, after a complete review of the record, we find the trial court fully complied with the requirements set forth in Miller, as well as LSA-C.Cr.P. art. 878.1 and LSA-R.S. 15:574.4(E).

For the foregoing reasons, this assignment of error lacks merit.

ORIGINAL AND SUPPLEMENTAL PRO SE ASSIGNMENT OF ERROR NO. 1

In his first pro se assignment of error, the defendant argues that he is being denied a proper judicial review based on a complete record pursuant to Louisiana Constitution Article I, Section 19, because the transcript 'reflecting the jury voir dire proceedings was not included in the record. He references minute entries indicating certain challenges for cause were denied, and complains that the record as constituted presents no reason for those denials.

A criminal defendant has a right of appeal based on a complete record of all evidence upon which the judgment is based. See La. Const. art. I, § 19; see also State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542, 586, cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000). Additionally, in felony cases, the clerk or court stenographer is required to record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel. See LSA-C.Cr.P. art. 843.

In After the filing of the defendant’s first pro se brief, this court ordered that the appellate record be supplemented with the transcript of the jury voir dire conducted on September 10, 2012. Given that supplementation of the record has occurred herein, this assignment of error is now moot.

After the defendant received the supplemental jury voir dire transcript, he was given an extension of time to file a supplement to his pro se brief. In his supplemental brief, he again claims he was denied a proper judicial review because the jury verdict sheets were not made a part of the record. (Supp. Pro Se Brief, p. 2). This argument lacks merit because the jury verdict sheets are included in the record on pages 90-97.

Lastly, the defendant claims he was denied a proper judicial review because the “actual defense voir dire” transcript of one of the potential jurors is missing from the record. (Supp. Pro Se Brief, p. 1). Again, this argument lacks merit, because an extensive colloquy was held between the trial court, defense attorney, prosecutor, and prospective juror, which is contained on pages 779-82 and 791-95 of the supplemental jury voir dire transcript.

For the foregoing reasons, this assignment of error has been rendered moot or otherwise lacks merit.

PRO SE ASSIGNMENT OF ERROR NO. 2

In his second pro se assignment of error, the defendant claims that the trial court did not find him competent to stand trial, and therefore, the court lacked proper jurisdiction.

Louisiana Code of Criminal Procedure article 642 provides, in pertinent part, that “[w]hen the question of the defendant’s mental incapacity to proceed is raised, | T ¡.there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.”

This assignment of error is without basis in the record. The minute entry dated May 7, 2012 reflects that a sanity hearing was held, with both the State and defense counsel stipulating to the doctor’s report. Thereafter, the defendant was found competent to stand trial. Furthermore, we have examined the sanity commission doctor’s report, which concluded that the defendant was competent to proceed to trial. The trial court determined that the defendant was competent to stand trial, and therefore, this assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NO. 3

In his third pro se assignment of error, the defendant argues his appellate counsel was ineffective for preparing an appeal based on an incomplete record and for assigning only one error. Specifically, he alleges that his appellate counsel should have raised his pro se assignments of error numbers 1 and 2 in the counseled brief.

A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal. State v. Miller, 99-0192 (La.9/6/00), 776 So.2d 396, 411, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001). A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish that his attorney was ineffective, the defendant must first show that the attorney’s performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Washington, 104 S.Ct. at 2065. Secondly, the defendant must prove that the deficient performance prejudiced the |isdefense. This element requires a showing that the errors were so serious that the defendant was deprived of a fair trial; the defendant must prove actual prejudice before relief will be granted. Washington, 104 S.Ct. at 2067. It is not sufficient for defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that but for the counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Washington, 104 S.Ct. at 2067-2068. Further, it is unnecessary to address the issues of both counsel’s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 859-60 (La.App. 1st Cir.1992), writ denied, 614 So.2d 1263 (La.1993).

All of the deficiencies alleged by the defendant on appeal address matters of preparation and strategy. Decisions relating to investigation, preparation, and strategy require an evidentiary hearing and, therefore, cannot possibly be reviewed on appeal. State v. Allen, 94-1941 (La.App. 1st Cir.11/9/95), 664 So.2d 1264, 1271, writ denied, 95-2946 (La.3/15/96), 669 So.2d 433. Furthermore, when the substantive issue that an attorney has not raised has no merit, then the claim that the attorney was ineffective for failing to raise the issue also has no merit. State v. Williams, 613 So.2d 252, 256-57 (La.App. 1st Cir.1992).

For these reasons, this assignment of error is without merit or otherwise not subject to appellate review.

REVIEW FOR ERROR

The defendant also requests that this court examine the record for error under LSA-C.Cr.P. art. 920(2). This court routinely reviews the record for such errors, whether or not such a request is made by a defendant. Under LSA-C.Cr.P. |14art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible errors. See State v. Price, 2005-2514 (La.App. 1st Cir.12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 2007-0130 (La.2/22/08), 976 So.2d 1277.

CONCLUSION

For the above and foregoing reasons, the defendant’s convictions and sentences are affirmed on all counts.

CONVICTIONS AND SENTENCES AFFIRMED ON ALL COUNTS.

      . The defendant was sixteen years old at the time of the commission of the crime.

      . The defendant initially filed a motion to waive trial by jury. However, the record is devoid of a signed order or further action taken on the motion. The defendant was subsequently tried by a jury of twelve.

      . State of Louisiana v. G’Quan Baker, 2013-0024 (La.App. 1st Cir.3/25/13) (unpublished writ action).

      . Angela also made an in-court identification of the defendant at trial as the individual who got out of the passenger side of the STJV and shot Ashley.

      . Louisiana Revised Statute 14:30.1(B) provides that "[w]hoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence."

      . Indeed, the voir dire transcript, consisting of 198 pages, is available to the defendant upon request.

      . Moreover, the defendant would have to satisfy the requirements of LSA-C.Cr.P. art. 924 et seq., in order to receive such a hearing.