author: ROBERT M. MURPHY, Judge.

text:
    STATE of Louisiana v. Maxim C. HOPPENS.
    No. 13-KA-948.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 23, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Gretna, Louisiana, Counsel for Plaintiff/Appellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, Louisiana, Counsel for Defendant/Appellant.
    Maxim C. Hoppens, St. Gabriel, LA, Defendant Appellant, In Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

li>,On March 11, 2013, defendant, Maxim C. Hoppens, pled guilty to one count of manslaughter, in violation of La. R.S. 14:31. The trial court sentenced defendant to 40 years of imprisonment at hard labor as per the plea agreement. Defendant was granted an out-of-time appeal. Defendant’s appointed appellate counsel has filed an Anders brief, asserting that there is no basis for a non-frivolous appeal. For the reasons that follow, we affirm defendant’s conviction and sentence and remand the matter to the trial court for correction of an error patent as noted herein.

FACTS AND PROCEDURAL HISTORY

In this case, defendant’s conviction resulted from a guilty plea, so the circumstances surrounding the offense were not fully developed at trial. Here, the | ¡¡record reflects that on or between August 4, 2011 or August 5, 2011, defendant committed the manslaughter of David Goldberg.

On December 8, 2011, a Jefferson Parish Grand Jury indicted defendant for second degree murder in violation of La. R.S. 14:30.1 (count one); forgery in violation of La. R.S. 14:72 (counts two and three); and access device fraud in violation of La. R.S. 14:70.4 (count four). Prior to the indictment, defendant filed a “Motion for Order for Mental Examination and to Convene Lunacy Hearing with Incorporated Memorandum” on November 18, 2011. A sanity hearing was held on January 18, 2012, after which the trial judge found defendant competent to stand trial. On that same date, defendant was arraigned and entered a plea of not guilty.

On June 14, 2012, defendant withdrew his not guilty plea and pled “not guilty and not guilty by reason of insanity.” On January 14, 2013, count one of the indictment was amended from second degree murder to manslaughter in violation of La. R.S. 14:31. On March 11, 2013, defendant amended his plea a second time and pled guilty to manslaughter. In exchange for defendant’s guilty plea, the State dismissed counts two, three, and four. On that same date, the trial judge sentenced defendant to imprisonment at hard labor for forty years. On September 19, 2013, defendant filed an application for post-conviction relief seeking an out-of-time appeal, which the trial court granted.

LAW AND DISCUSSION

Anders Brief

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has |4filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders, supra, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a brief referring to anything in the record that might arguably support the appeal’” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, supra at 241, the Louisiana Supreme Court stated that an An-ders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an An-ders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

|sWhen conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, supra at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal points identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In his brief, defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Appellate counsel states that the only pre-trial rulings centered on defendant’s motion and order for a mental examination. He further States that the motion was apparently granted, but that defense counsel later withdrew the not guilty and not guilty by reason of insanity plea and entered a plea to manslaughter, a lesser included offense. Counsel asserts that he thoroughly reviewed the information relative to the motion and has not found any appealable issues. Counsel states that prior to pleading guilty, defendant was fully informed of the legal consequences of changing his plea by both his trial counsel and the district court. He notes that although the standard discovery motions were filed, the trial court record does not reflect that either the State or the defense lodged any objections or motions that would support a decision by this Court to reject defendant’s guilty plea.

Appellate counsel provides that an examination of the plea colloquy revealed that the trial court was very thorough in explaining the consequences of a guilty plea to defendant, and in making sure defendant understood the constitutional rights he would be waiving by pleading guilty. Appellate counsel Estates that the district court also carefully explained the sentencing range defendant would be exposed to if his guilty plea were accepted. He notes that defendant expressly acknowledged that he wanted to waive his constitutional rights to a trial, and that he made no reservation to appeal any pretrial rulings or his conviction and sentence. Appellate counsel asserts that defendant did not file a motion to reconsider sentence or a motion for appeal before he filed his application for post-conviction relief on September 19, 2013. He concludes that there are no credible arguments to advance on appeal and, therefore, requests that this Court grant his request to withdraw and conduct an error patent review.

Appellate counsel has filed a motion to withdraw as attorney of record which provides that he has notified defendant of the filing of this motion and advised him of his right to file a pro se brief. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until January 23, 2014 to file a pro se supplemental brief. Defendant filed a timely pro se supplemental brief.

The State responds that the brief filed by appellate counsel shows a conscientious and thorough review and recitation of the procedural history of the case. The State requests that this Court affirm defendant’s conviction and sentence. It notes that defendant signed a waiver of rights form that enumerated defendant’s rights, set out the sentencing range, and notified defendant of what his actual sentence would be. The State indicates that after defendant signed the waiver, the trial judge engaged defendant in a Boykin colloquy, whereby defendant was again made aware of his rights, the sentencing range for his conviction, and that his sentence would be forty years at hard labor. The State asserts that defendant articulated to the trial judge that he understood those rights and wished 17to waive them. It further asserts that appellate counsel found that the sentencing was proper and in conformity with the plea agreement and, therefore, under La. C.Cr.P. art. 881.2(A)(2), defendant was precluded from seeking review of his sentence. Lastly, the State indicates that the sentence was proper and did not give rise to non-frivolous issues on appeal.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The indictment properly charged defendant and plainly and concisely stated the essential facts constituting the offense charged. It also sufficiently identified defendant and the crime charged. See, La. C.Cr.P. arts. 462-66. Further, the minute entries reflect that defendant and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment, guilty plea, and sentencing. As such, there are no appealable issues surrounding defendant’s presence.

Further, defendant pled guilty in this case. Under both state and federal jurisprudence, it is well-settled that an unqualified guilty plea waives all non-jurisdictional defects occurring prior thereto, and precludes review of such defects by appeal. State v. Johnson, 08-449 (La.App. 5 Cir. 12/16/08), 3 So.3d 17, 19, writ denied, 09-0787 (La.12/18/09), 28 So.3d 932. Here, defendant entered an unqualified guilty plea and, therefore, it appears that all non-jurisdictional defects are waived.

Additionally, no pre-trial rulings were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584 (La.1976), and the record reflects that defendant’s plea was not made pursuant to Crosby. Further, although defendant filed a motion to suppress statement and a motion to quash, the record does not reflect any rulings on those motions. When a defendant does not object to the trial |scourt’s failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. See State v. Corzo, 04-791 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Here, defendant did not object to the trial court’s failure to hear or rule on his pre-trial motions prior to his guilty plea. Therefore, the motions are considered waived.

Next, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

Our review of the record reveals no constitutional infirmity in defendant’s guilty plea. The record shows that defendant was aware he was charged with and pleading guilty to the amended charge of manslaughter. On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination as required by Boykin v. Alabama^ supra. Defendant signed the waiver of rights form, indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood that he was waiving these rights.

During his guilty plea colloquy, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty plea. Defendant indicated during the guilty plea colloquy that he understood that his guilty plea could be used to enhance penalties for any future convictions. Defendant was informed during the colloquy, and by means of the waiver of rights form, of the maximum sentence he faced and of the actual sentence that would be imposed if his guilty plea was ^accepted. After the colloquy with defendant, the trial court accepted defendant’s plea as knowingly, intelligently, and voluntarily made.

With regard to defendant’s sentence, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Here, defendant’s sentence was imposed in accordance with the terms of the plea agreement set forth in the record at the time of the plea.

Even if defendant could seek review of his sentence, we would find no merit. Here, defendant pled guilty to manslaughter, which is a violation of La. R.S. 14:31. The trial judge imposed a sentence of 40 years imprisonment at hard labor, which falls within the sentencing range prescribed by the manslaughter statute. See La. R.S. 14:31.

Moreover, defendant’s plea agreement was greatly beneficial to him. Prior to the plea agreement, defendant was facing a second degree murder charge, which carries a life sentence; two forgery charges, which carry sentences of up to 10 years on each count; and one charge for access device fraud, which carries a sentence of up to 5 years. Pursuant to the plea agreement, defendant received a 40-year sentence on the amended charge of manslaughter, and the State dismissed the forgery and access device fraud charges.

Based on the foregoing, we find that defendant’s guilty plea and sentence imposed pursuant to a plea agreement do not present any non-frivolous issues on appeal.

|inPro Se Assignments of Error

Defendant filed a pro se supplemental brief asserting five assignments of error.

In his first assignment of error, defendant contends that his guilty plea was not knowingly and intelligently entered. Specifically, defendant asserts that he informed his trial counsel that he panicked and killed the victim in self-defense, believing he was about to be raped by the victim. Defendant contends that because his trial counsel failed to conduct an appropriate investigation into the facts, his counsel was in no position to effectively advise defendant to plead guilty. Defendant further asserts that he would have gone to trial if he had known that his conduct only amounted to manslaughter and that, as a first offender, he would not have received the maximum forty-year sentence.

As set forth in our analysis of appellate counsel’s Anders brief, we have concluded that defendant’s plea was knowingly and intelligently entered. However, defendant’s first assignment of error also alleges that his counsel was ineffective for failing to conduct an appropriate investigation into the facts of his case.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution safeguard a defendant’s right to effective assistance of trial counsel. According to the United States Supreme Court’s opinion in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant asserting an ineffective assistance claim must show: 1) that defense counsel’s performance was deficient; and 2) that the deficiency prejudiced the defendant. The defendant has the burden of showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the ^proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, if necessary, rather than by direct appeal. State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under La.C.Cr.P. arts. 924-930.8. Id.

Because defendant’s conviction in this case resulted from a guilty plea, we find that the record is insufficient to fully explore defendant’s claim that his trial counsel was ineffective for failing to adequately investigate and prepare defendant’s case. Based on the limited record on appeal, we find that defendant’s ineffective assistance of counsel claims would be more appropriately raised in an application for post-conviction relief in the trial court, where a full evidentiary hearing can be conducted, if necessary, and defendant can present evidence to support his allegations. Therefore, we find this assignment of error to be without merit.

In his second assignment of error, defendant contends that the factual basis given by the State at the time of the plea was insufficient to bestow jurisdiction on the trial court to accept the guilty plea. Defendant challenges the sufficiency of the factual basis on several grounds: (1) defendant maintains that he asserted his innocence of the charged crime, therefore, a sufficient factual basis is a | ^jurisdictional requisite to the acceptance of a guilty plea in such instances; (2) defendants contends that the State failed to establish the grade of the homicide, or that the homicide was not perpetrated in self-defense.

As we have set forth above, an unqualified guilty plea waives all non-jurisdictional defects occurring prior thereto and precludes review of such defects by appeal. Johnson, supra. Because we have determined that defendant’s plea of guilty to manslaughter was valid, defendant has waived any right to question the merits of the State’s case, as well as the right to maintain a claim of self-defense. See State v. Bourgeois, 406 So.2d 550, 552 (La.1981). However, because defendant has alleged that the trial court was without jurisdiction to accept his plea because the factual basis was insufficient and he declared his innocence, we will review the merits of these claims.

The due process clause imposes no constitutional duty on state trial judges to ascertain a factual basis prior to accepting a guilty plea. State v. Smith, 09-769 (La.App. 5 Cir. 3/9/10), 38 So.3d 894, 896, n. 1, writ denied, 10-0843 (La.11/5/10), 50 So.3d 812. Louisiana law, unlike federal law, has no statutory provision requiring accompaniment of a guilty plea by the recitation of a factual basis. Id. Rather, due process requires a factual basis for a defendant’s guilty plea only when a defendant proclaims his innocence, or when the trial court is otherwise put on notice that there is a need for an inquiry into the factual basis. Id.

Our review of the record shows that the State provided a lengthy factual basis at defendant’s plea hearing. Although the exact details of the crime itself were unclear, defendant admitted his guilt for the crime after the factual basis was presented. Specifically, the trial judge asked defendant if the factual basis read at the hearing was correct, to which he replied, ‘Tes, ma’am.” The trial judge then asked defendant if he was pleading guilty because he was in fact guilty, and | ^defendant replied, ‘Tes, ma’am.” Because our review of the record shows that defendant did not maintain his innocence at the plea hearing, but rather admitted his guilt for the manslaughter of David Goldberg, we find that the trial court had no constitutional duty to ascertain a factual basis prior to accepting defendant’s guilty plea in this case.

Defendant has also alleged two ineffective assistance of counsel claims in his second assignment of error. Specifically, defendant contends that his trial counsel was ineffective for failing to object to the sufficiency of the factual basis, and for failing to enter an Alford plea. We find that the record contains sufficient evidence to rule on the merits of these ineffective assistance claims. Therefore, we will consider these claims on appeal in the interest of judicial economy.

We find no merit to defendant’s claim that his trial counsel was ineffective for failing to object to the sufficiency of the factual basis provided at the plea hearing. In State v. Allen, 03-2418 (La.6/29/05), 913 So.2d 788, cert. denied, 547 U.S. 1132, 126 S.Ct. 2023, 164 L.Ed.2d 787, the Louisiana Supreme Court stated that the failure to object to a valid error may be the proper subject of a claim of ineffective assistance of counsel. Conversely, the failure to object to invalid errors may not be the proper subject of a claim of ineffective assistance of counsel. As we have found above, defendant is not entitled to relief on the basis of his claims regarding the sufficiency of the factual basis. Accordingly, the failure of his trial counsel to object to the sufficiency of the factual basis did not prejudice defendant, and therefore, does not constitute ineffective assistance of counsel.

Similarly, we find no merit to defendant’s claim that his trial counsel was ineffective for failing to enter an Alford plea on his behalf. Again, defendant 114alleges that he “specifically denied admission of guilt and maintained his innocence.” Because the record establishes that defendant admitted guilt for the manslaughter of the victim at this plea hearing, and did not maintain his innocence, we find that defendant has failed to establish that his counsel’s performance was deficient in this regard, or that the alleged deficiency prejudiced defendant. See Strickland, supra at 687, 104 S.Ct. 2052. Therefore, we find this assignment of error to be without merit.

In defendant’s third and fourth assignments of error, he contends that his guilty plea was not validly entered because the question of his mental capacity had not been resolved by the trial court prior to the entry of his plea, and that his trial counsel was ineffective for failing to object to this error prior to the entry of defendant’s guilty plea.

Once a defendant’s mental incapacity to proceed is raised, there can 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. State v. Dauzat, 08-460 (La.App. 5 Cir. 1/13/09), 8 So.3d 609, 612 (citing La.C.Cr.P. art. 642). The issue of a defendant’s mental capacity to proceed shall be determined by the court in a contradictory hearing. La.C.Cr.P. art. 647. The report of the sanity commission is admissible in evidence at the hearing, and members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney. Id.

In the instant case, defendant filed a “Motion for Order for Mental Examination and to Convene Lunacy Hearing with Incorporated Memorandum” on November 18, 2011. The trial court conducted a sanity hearing on January 18,11R2012, wherein defense counsel stipulated to the report provided by Dr. Rafael F. Salcedo and Dr. Richard W. Richoux, which found defendant competent to proceed. At the conclusion of the hearing, the trial court found defendant competent to proceed. Defendant subsequently pled guilty to manslaughter on March 11, 2013.

Based on the foregoing, we find that the record shows that the issue of defendant’s mental capacity to proceed was determined by the trial court in a contradictory hearing prior to the entry of his guilty plea. Therefore, we find no merit to defendant’s claim that his plea was not validly entered due to the allegedly unresolved issue of his mental capacity. Furthermore, because the question of defendant’s mental capacity was properly raised and resolved by the trial court prior to the entry of the guilty plea, we find that defendant’s trial counsel was not ineffective for failing to object to the trial court’s failure to resolve that issue prior to defendant’s plea.

In his fifth assignment of error, defendant contends that the trial judge committed reversible error by assisting the State in negotiating and securing the guilty plea during the plea bargaining process, and that his trial counsel was ineffective for failing to object to this alleged error. Defendant contends that the trial judge personally communicated with all parties and that the trial judge said she would only allow defendant to plead guilty to forty years, whereas the State had proposed that defendant be sentenced to thirty years.

In State v. Bouie, 00-2934 (La.5/14/02), 817 So.2d 48, the Louisiana Supreme Court discussed the effect of a trial judge’s participation in the proceedings on the free and voluntary nature of a defendant’s plea. In that case, the Louisiana Supreme Court declined to adopt a rule absolutely prohibiting Louisiana trial judges from participating in plea negotiations, such as that provided |1fiin the Federal Rules of Criminal Procedure, Fed. R.Crim. Proc. 11(e)(1), but cautioned that a judge doing so “should take extreme care to avoid the dangers described in the ABA commentary,” which it quoted as follows:

(1) judicial participation in the discussions can create the impression in the mind of the defendant that he would not receive a fair trial were he to go to trial before this judge; (2) judicial participation in the discussions makes it difficult for the judge objectively to determine the voluntariness of the plea when it is offered; (3) judicial participation to the extent of promising a certain sentence is inconsistent with the theory behind the use of the presentence investigation report; and (4) the risk of not going along with the disposition apparently desired by the judge may seem so great to the defendant that he will be induced to plead guilty even if innocent. ABA Standards, Pleas of Guilty § 3.3(a), Commentary 73 (Approved Draft 1968).

Id. at 54.

In the instant case, defendant has failed to present any evidence indicating that the trial judge entered the plea negotiations in this case, and our review of the record fails to reveal any such participation on behalf of the trial judge. Therefore, we find this claim to be without merit. As for defendant’s ineffective assistance of counsel claim, we find that based on the limited record on appeal regarding this issue, this claim would be more appropriately raised in an application for post-conviction relief in the trial court. Therefore, we find this assignment of error to be without merit.

Error Patent Discussion

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals an error in the “State of Louisiana Uniform Commitment Order.” The Uniform Commitment Order reflects the incorrect date, August 9, 2011, as the date of the offense. Accordingly, to ensure an accurate record, we remand this case and order the Uniform Commitment Order to be | ^corrected to reflect the correct date of the offense, on or between August 4, 2011 and August 5, 2011. We further direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ Legal Department. See State v. Long, 12-184 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142, citing La.C.Cr.P. art. 892(B)(2).

CONCLUSION

Accordingly, for the foregoing reasons, we affirm defendant’s conviction and sentence for one count of manslaughter, in violation of La. R.S. 14:31, and grant appellate counsel’s motion to withdraw as attorney of record. The matter is remanded to the trial court for correction of an error patent as noted herein, and the Clerk of Court for the 24th Judicial District Court is ordered to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ Legal Department.

AFFIRMED; MOTION TO WITHDRAW GRANTED; REMANDED FOR CORRECTION OF COMMITMENT.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)

      . In Bradford, supra, this Court adopted the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir. 1990), and sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (percuriam).

      . The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . See La. R.S. 14:31; La. R.S. 14:30.1; La. R.S. 14:72; and La. R.S. 14:70.4.

      . North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      . Under North Carolina v. Alford, supra, an accused may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, or even if his guilty plea contains a protestation of innocence, when he intelligently concludes that his interests require a guilty plea and the record strongly evidences guilt. State v. Mayon, 11-643 (La.App. 5 Cir. 2/28/12), 88 So.3d 1115, 1117.


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge. JOHNSON, J.,

license: Public Domain

text:
    STATE of Louisiana in the Interest of B.D.
    No. 13-KA-760.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 23, 2014.

      Paul D. Connick, Jr., District Attorney, Amanda L. Calogero, Elizabeth B. Curren, Molly Massey, Assistant District Attorneys, Harvey, LA, for Plaintiff/Appellee.
    Katherine M. Franks, Attorney at Law, Springs, LA, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

lijThe juvenile defendant, B.D., was adjudicated delinquent on a charge of unauthorized use of a motor vehicle, and sentenced to one year, suspended and one year active, intensive probation. Defendant now appeals, alleging that his adjudication violates the prohibition against double jeopardy. We affirm defendant’s adjudication and disposition.

PROCEDURAL HISTORY AND FACTS

On September 14, 2011, prior to the adjudication at issue in this appeal, B.D. was adjudicated delinquent on a charge of theft of goods. On October 13, 2011, he was sentenced to OJJ (Office of Juvenile Justice) for a period of six months with active probation for a period of one year, with both general and special conditions. On October 12, 2012, B.D. was adjudicated “FINS (Family in Need of Support): Minor Ungovernable” and placed on active probation for an additional year with both general and special conditions.

On May 18, 2013, B.D.’s mother notified police that her car had been “stolen” and that she believed that B.D. had taken her car without her permission. B.D. returned the car several hours later. He successfully avoided the police, and a warrant was issued for his arrest.

|30n May 21, 2013, B.D.’s probation officer, Pierre Hollis, filed a Rule to Show Cause on Constructive Contempt alleging that B.D. had violated the terms of his probation in several ways, including the unauthorized use of his mother’s car. Two days later, on May 23, 2013, B.D. was arrested on the outstanding warrant. The following day, May 24, 2013, the Jefferson Parish District Attorney filed a delinquency petition in juvenile court, charging B.D. with unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4.

On May 30, 2013, B.D. was arraigned on the delinquency petition and he denied the charges. A hearing on the Rule to Show Cause was held and B.D. was found in constructive contempt for violating the terms of his probation. He was sentenced to 15 days incarceration at a juvenile facility with credit for time served.

Thereafter, B.D. filed a motion to dismiss the delinquency petition, alleging double jeopardy. The motion was denied on June 25, 2013. On June 26, 2013, B.D. was adjudicated a delinquent on the unauthorized use of a motor vehicle charge. B.D. was sentenced on July 25, 2013.

1 ¿DISCUSSION

In his sole assignment of error, B.D. contends that his constitutional right against double jeopardy was violated when he was sentenced to 15 days for various alleged probation violations, which he contends included the theft of D.D.’s car, and was then later prosecuted for the offense of unauthorized use of a motor vehicle.

The Fifth Amendment to the United States Constitution, as well as Article 1, § 15 of the Louisiana Constitution of 1974, prohibit placing a person twice in jeopardy of life or limb for the same offense. State v. Bridgewater, 98-658 (La.App. 5 Cir. 12/16/98), 726 So.2d 987. Double jeopardy provisions protect an accused not only from a second prosecution for the same offense, but also multiple punishments for the same criminal act. State v. Jackson, 96-661 (La.App. 5 Cir. 4/9/97), 694 So.2d 440, 448, writ denied, 97-1050 (La.10/13/97), 703 So.2d 609, writ denied, 97-1255 (La.10/13/97), 703 So.2d 612. La. Ch.C. art. 808 provides that all the rights guaranteed to criminal defendants under the state and federal constitutions, except the right to jury trial, shall be applicable in juvenile court proceedings. See, State ex rel. D.J., 01-2149 (La.05/14/02), 817 So.2d 26.

La. Ch.C. Art. 842 requires the filing of a petition to commence a delinquency proceeding. La. Ch.C. art. 845 provides that the content of the petition shall include the statute or ordinance that the child is alleged to have violated. Next, the Children’s Code requires a formal proceeding during which a juvenile answers the delinquency petition. La. Ch.C. art. 856.

|RLa. Ch.C. art. 811 provides, “When a child enters a denial to the petition, jeopardy begins when the first witness is sworn at the adjudication hearing. When he enters an admission to the petition, jeopardy begins when a valid disposition is made the judgment of the court.”

B.D. first asserts that for the purposes of double jeopardy, this Court should consider his probation officer’s rule to show cause to be a “charging vehicle” which mirrored the alleged facts in the petition filed by the State. B.D. next argues that the contempt hearing, which immediately followed his appearance and answer to the State’s petition, was, in fact, an “adjudication” during which time a witness was sworn and the court considered B.D.’s alleged conduct regarding the stolen vehicle. In his motion to dismiss, B.D. concluded, “The Court found [B.D.] guilty of contempt on May 30, 2013 relying, in part, on the incident in which [B.D.] allegedly used [D.D.’s] car without her permission. The Court then sentenced [B.D.] to incarceration at Rivarde Detention Center for fifteen (15) days.” Relying on La. Ch.C. art. 811, B.D. argues that jeopardy on the charge attached when Pierre Hollis was sworn and recounted the alleged parole violations that B.D. had committed, which included a description of the incident that formed the basis of his unauthorized use of a motor vehicle charge.

The record in this case shows that B.D.’s probation officer, Pierre Hollis, filed a Rule to Show Cause on Constructive Contempt which alleged that B.D. had “repeatedly violated” specific conditions of probation, and set forth the facts of those violations. On May 30, 2013, a hearing was held on the rule for contempt. Prior to its commencement, B.D. entered an appearance and answered the petition on the offense of unauthorized use of a motor vehicle. At that time, the court set a future date for the adjudication hearing of that charge. It was only after B.D.’s denied the allegations of petition, alleging the unauthorized use of a movable, that |fithe hearing on the rule for contempt was held. At the hearing on the rule for contempt, B.D.’s probation officer, Pierre Hollis, recounted almost verbatim the conditions of probation that B.D. had allegedly violated. Hollis did not recount for the court the events of May 20, 2013, although they were detailed in the rule to show cause.

At the conclusion of the hearing, the court found B.D. in contempt and sentenced him to 15 days in a juvenile detention facility with credit for time served. The court did not provide any reasons on the record to support its finding of contempt, nor did it differentiate or specify what alleged acts of probation violation merited time in detention. The court was also informed that B.D. was being held in detention pursuant to a warrant issued for his arrest.

The adjudication hearing on B.D.’s charge of unauthorized use of a motor vehicle took place on June 26, 2013, approximately one month later. At that time the prospective witnesses were sworn. The only witness who testified was B.D.’s mother. At the conclusion of her testimony, the State and defense submitted that matter and the court adjudicated B.D. delinquent on the charge.

Based on the foregoing, the record does not show that an adjudication took place on May 30, 2013. Defendant provides no authority to support the assertion that the Rule to Show Cause on Constructive Contempt, which was based on alleged violations of probation imposed for a crime that defendant had previously been adjudicated delinquent, is the legal equivalent of the delinquency petition that charged defendant with the new offense of unauthorized use of a motor vehicle.

The record shows that the State complied with La. Ch.C. art. 842 in filing a petition that charged B.D. with the offense of unauthorized use of a motor vehicle and, pursuant to La. Ch.C. art. 856, set the adjudication for a future date after B.D. denied the allegations in the petition. The record further shows that the Rule to 17Show Cause on Constructive Contempt was a separate proceeding. Although the events that formed the basis of the unauthorized use of a motor vehicle charge were detailed in the rule that was filed, they were not argued to the Court as a basis for finding B.D. in contempt. Accordingly we find that jeopardy did not attach on May 30, 2013.

The two proceedings notwithstanding, B.D. claims that his 15-day sentence for contempt imposed by the court on May 30, 2013, includes punishment for the unauthorized use of a vehicle charge. To determine whether B.D. was twice sentenced on the same offense, we first consider whether his contempt proceeding for violation of his probation was criminal or civil. If the contempt was civil in nature, his prosecution for the unauthorized use of a motor vehicle would not constitute double jeopardy. State v. Hope, 449 So.2d 633 (La.App. 1 Cir.1984), citing State v. Austin, 374 So.2d 1252 (La.1979).

In civil contempt, the punishment is remedial or coercive; in a criminal contempt case, it is punitive and intended to vindicate the authority of the court. A jail sentence is punitive/criminal if it is limited to imprisonment for a definite period. State v. Desselle, 00-2408 (La.App. 1 Cir. 10/10/01), 809 So.2d 460.

Here, B.D. was held in constructive contempt of court and sentenced to 15 days in Rivarde with credit for time served. It is clear that the 15 days was punishment for violating the probation contract, and that the contempt was criminal, since the incarceration cannot cure the probation violations. However, as | ^stated supra, the act of taking his mother’s car without permission, although listed in the rule to show cause, was not used by the State nor considered by the juvenile court in holding B.D. in contempt of his probation contract. Instead, numerous infractions at school were the basis for the adjudication of contempt of court. We therefore find that B.D. was not sentenced twice for the same criminal conduct.

ERROR PATENT DISCUSSION

We have reviewed the record for errors patent, according to the mandates of La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Although the Louisiana Children’s Code is silent as to whether a juvenile criminal proceeding is entitled to an error patent review, we believe that such a review is mandated by La. Ch.C. art. 104 and La. C.Cr.P. art. 920. See State ex rel. D.J., 2008-345 (La.App. 3 Cir. 8/28/08), 995 So.2d 1; State in Interest of B.J., 617 So.2d 238, 243 (La.App. 5 Cir.1993). We find the following errors which merit attention.

At the conclusion of the disposition hearing, the juvenile judge failed to give B.D. notice of the time limit for filing a post-conviction relief application as required by La.C.Cr.P. art. 930.8. In a juvenile case, such notice should be given. State ex reí D.J., supra. If a trial court fails to advise, or provides an incomplete advisal, pursuant to La.C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief. See State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478 (La.4/19/13), 111 So.3d 1030. Thus, by way of this opinion, defendant is informed that no application for post-conviction relief, including an application for an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La.C.Cr.P. art. 914 or 922.

Inin addition, the record reveals a conflict between the minute entry/commitment and the transcript. The minute entry/commitment indicates that the trial court sentenced B.D. to “the DPSC for a period of 1 year or until 21st birthday whichever is sooner.” However, the transcript reflects that on July 25, 2013, the court ordered the disposition as follows:

THE COURT:

Okay. I will approve the recommendations of the probation department, place him on intensive probation. I’ll sentence him to serve one year. I will suspend that, and place him on active probation. That probation will be intensive according to the contract.

Where there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Therefore, we remand this matter to the trial court with instructions to amend the minute entry/commitment to reflect the sentence pronounced in the transcript.

CONCLUSION

For the above discussed reasons, defendant’s adjudication as delinquent on a charge of unauthorized use of a motor vehicle and his disposition of one year, suspended and one year active, intensive probation is affirmed. We remand this this matter for correction of the commitment in compliance with this opinion. We further order that, in addition to the record copy, a separate copy of this opinion be delivered to the Clerk of Court for the Twenty-Fourth Judicial District Court for the Parish of Jefferson.

ADJUDICATION AND DISPOSITION AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT

JOHNSON, J.,

Concurs with Reasons.

hi concur with the result reached by the majority; specifically, I agree that there was no double jeopardy violation in this case. I disagree with the majority’s statement that double jeopardy never attached because of the nature of the two separate proceedings. Rather, I agree only with the majority’s analysis insofar as they find that Defendant was not punished twice for the same offense because Defendant’s contempt adjudication was not based on any evidence relating to the unauthorized use of a motor vehicle for which he was subsequently adjudicated delinquent.

      . In the Rule to Show Cause, Mr. Hollis alleged that B.D. had "repeatedly violated” probation and the following specific conditions thereof:
      (11) Attend school on a daily basis and participate to the best of your ability; be punctual; do not willfully violate school rules, get suspended or expelled.
      (12) Obey the reasonable and lawful demands of his/her parents/legal guardians. (14) Abide by a 7pm [sic] curfew seven days a week.
      (19) Keep your parents/ guardian informed of your whereabouts at all times.
      (21) Refrain from any verbally and physically aggressive behaviors displayed in the school setting.
      On 4/26/13 it was reported that [B.D.] came running to Ms. Brown’s classroom and another student tried to close the door to keep [B.D.] from entering. [B.D.] pushed his way in and teased the other student calling him a "retarded ass” and then slapped the other student.
      On 5/3/13 it was reported by Mr. Watts that [B.D.] was running around the campus during 4th period. [B.D.] and another student kicked his door, then begin [sic] yelling "Eat-, Open this door you Old F-”. At one point [B.D.] got into into the room and grabbed documents off the Para-professionals [sic] desk and refused to give them to Mr. Watts, until the campus police told him to do so. He then stated that he would “Slap the f— out of me."
      On May 20, 2013 it was reported by [D.D.] that [B.D.] stole her car 5/19/2013 while she was sleeping, she did call the police to report her car stolen, and when the police arrived [B.D.] still hadn’t made it home. [D.D.] stated that [B.D.] did not return home until pass [sic] midnight. When [B.D.] returned home, he left the house again and did not return as of 5/20/2013. [B.D.] has 14 absences and one documented suspension since his last court appearance.

      . La. Ch.C. art. 856. provides, in relevant part:
      A. After the child has been advised pursuant to Article 855, the court shall inquire how the child responds. The child may:
      (1) Deny the allegations of the petition, in which case the court shall set the matter for an adjudication hearing.

      . B.D. argues that the instant case is analogous to State v. Desselle, 00-2408 (La.App. 1 Cir. 10/10/01), 809 So.2d 460. In Desselle, the defendant was charged by bill of information for kidnapping and moved to quash the bill of information on the basis of double jeopardy. After remand, the first circuit found that the defendant could not be prosecuted by the State for kidnapping because multiple contempt hearings had been held by the family court judge regarding the defendant's acts of not returning her children to her ex-husband pursuant to scheduled visitation judgment. In that case, however, the defendant was specifically found in criminal contempt for violating the visitation judgment and 90-day jail terms were imposed prior to the time that she was charged by the State with kidnapping. In contrast, in the instant case B.D. was not found in contempt for the offense of unauthorized use of a motor vehicle, nor was a sentence imposed for that offense prior to his adjudication hearing on June 26, 2013. Accordingly, Desselle, supra is factually distinguishable.


author: JUDE G. GRAVOIS, Judge.

text:
    Nathaniel GOINES, Jr. v. Dianne B. GOINES.
    No. 13-CA-981.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 23, 2014.

      See also 979 So.2d 518.
    Avinell J.M. Faucheux, Attorney at Law, Destrehan, LA, for Plaintiff/Appellee-2nd Appellant.
    Richard J. Brazan, Jr., attorney at Law, Baton Rouge, LA, for Defendant/Appellant-2nd Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   JUDE G. GRAVOIS, Judge.

|?In this community property partition suit, both spouses appeal judgments rendered by the trial court. Appellant, Dianne Goines, appeals the trial court’s ruling dated March 15, 2012, wherein the trial judge declined to disturb its previous ruling of December 6, 2011 that approved Mr. Goines’ Amended Qualified Domestic Relations Order (QDRO) relating to Mr. Goines’ Shell Provident Fund. Second appellant, Nathaniel Goines, appeals two rulings contained in the trial court’s judgment of October 9, 2012, wherein the trial court denied Mr. Goines’ request for reimbursement for termite treatment of the community home and denied Mr. Goines’ request for damages from Mrs. Goines related to funds he paid to retire indebtedness allegedly owed by Mrs. Goines at the termination of the community. For the reasons that follow, we find that the judgments on appeal are interlocutory in nature, and that the parties have not demonstrated irreparable harm necessary to support an appeal at this time. We thus dismiss these appeals and remand the matter to the trial court for further proceedings consistent with this opinion.

| ¡¡FACTS AND PROCEDURAL HISTORY

This community property partition suit has a long, convoluted history. The parties were married in 1986, filed for divorce in 2000, and a judgment of divorce was rendered in 2001. Proceedings to partition the community property commenced shortly thereafter. Previously, the parties had a trial on the merits of the partition suit which resulted in appeals to this Court. Goines v. Goines, 08-42 (La.App. 5 Cir. 6/19/08), 989 So.2d 794, and Goines v. Goines, 09-994 (La.App. 5 Cir. 3/9/11), 62 So.3d 193, writ denied, 11-0721 (La.5/20/11), 63 So.3d 984. In the parties’ 2011 appeal, this Court remanded the matter to the trial court “for disposition of the community house and completion of the partition proceeding” in accordance with La. R.S. 9:2801. Mr. Goines represents in his brief that the partition of the parties’ community property remains incomplete, but in an abundance of caution, he has appealed the rulings at issue, which stem from rules to show cause, rather than from a trial on the merits.

As noted above, in this Court’s previous opinion, the parties were instructed to reach a final judgment in the community property partition proceeding, including disposition of the community home, in accordance with La. R.S. 9:2801. The parties’ failure to accomplish the final partition of the community property has resulted in piecemeal rulings and appeals, including the ones at issue here, which have impeded final resolution of this case. Additionally, it appears that, contrary to this Court’s previous instructions, the community home has not yet been allocated to either of the parties or disposed of, as evidenced by Mr. Goines’ continued rules for reimbursement from Mrs. Goines of his expenses related to maintaining the community home, including the rulings he appeals here.

[4Upon review, we find that the rulings on appeal are interlocutory in nature and are thus not appealable absent a showing of irreparable harm. La. C.C.P. art. 2083; Plauche v. Plauche, 95-979 (La.App. 5 Cir. 3/13/96), 673 So.2d 1053. Regarding the QDRO, the designated record on appeal contains more than one QDRO signed by the trial judge pertaining to the Shell Provident Fund. Though appellant Mrs. Goines refers to one of them in her brief, it is difficult, if not impossible, to ascertain from this designated record which Shell Provident Fund order is actually the one at issue in this appeal. Further, it appears that the QDRO ruling(s) at issue are interlocutory because there is no evidence that any of the order(s) have been granted qualified status by the plan administrator, as required by La. R.S. 9:2801(B), which provides:

Those provisions of a domestic relations order or other judgment which partitions retirement or other deferred work benefits between former spouses shall be considered interlocutory until the domestic relations order has been granted “qualified” status from the plan administrator and/or until the judgment has been approved by the appropriate federal or state authority as being in compliance with applicable laws. Amendments to this interlocutory judgment to conform to the provisions of the plan shall be made with the consent of the parties or following a contradictory hearing by the court which granted the interlocutory judgment. The court issuing the domestic relations order or judgment shall maintain continuing jurisdiction over the subject matter and the parties until final resolution.

Accordingly, the QDRO ruling(s) are not ripe for appeal at this procedural juncture, and the appeal of the QDRO ruling(s) is accordingly dismissed.

We further find that the rulings Mr. Goines complains of are interlocutory as well. La. C.C.P. art. 2083 provides that appeals may be taken from final judgments and from interlocutory judgments that cause irreparable injury. A final judgment is one that determines the merits in whole or in part. La. C.C.P. art. 1841. La. C.C.P. art. 1915 provides, in pertinent part:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the | srelief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1)Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
(4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
(6) Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G).
B.(l) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, re-conventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

The rulings Mr. Goines complains of do not constitute final judgments under the above guidelines. They determine preliminary matters that may be further reviewed as the partition proceeding is finalized. Nor have the parties made the requisite showing of irreparable harm to entertain an immediate appeal of these rulings. The Court in Plauche noted that:

In contrast to a final judgment, an interlocutory judgment is one that determines preliminary matters rather than the merits. La. C.C.P. art. 1841. An interlocutory judgment causes “irreparable injury” and is 1 ^therefore appealable when the ruling cannot, as a practical matter, be corrected on appeal. Herlitz Constr. Co. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981).

The parties to this case were divorced in 2001 and the community property partition proceeding has been pending in the courts since then. Entertaining multiple and piecemeal appeals does not serve the interests of the parties in obtaining resolution of this matter, or promote the policy of judicial economy that lies within La. C.C.P. art. 1915. The parties may, of course, obtain appellate review of all interlocutory judgments, including the ones at issue, once a final community property partition judgment is rendered.

CONCLUSION

For the above-stated reasons, we dismiss this appeal and remand the matter to the trial court for further proceedings consistent with this opinion.

APPEAL DISMISSED; REMANDED.

      . Related matters were also heard in River Parishes Financial Services, L.L.C. v. Goines, 07-641 (La.App. 5 Cir. 2/6/08), 979 So.2d 518.

      . See, for an analogous situation, Tramontin v. Tramontin, 10-0060 (La.App. 1 Cir. 12/22/10), 53 So.3d 707, wherein the appellate court found, in an ex-wife's action to rescind a partition agreement and to nullify a judgment that homologated a community property agreement, that the trial court's interlocutory rulings with regard to ownership of stock and stock options were not final for purposes of immediate appeal. The court found that to permit an appeal of those judgments would encourage multiple appeals and piecemeal litigation, and would prohibit expeditious disposition of this community property case.


author: HANS J. LILJEBERG, Judge.

text:
    SUCCESSION OF Frances Carr SCURLOCK.
    No. 13-CA-960.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 23, 2014.

      Harold E. Molaison, Attorney at Law, Jack E. Morris, Attorney at Law, Metairie, LA, for Defendant/Appellant.

      V.M. Wheeler, III, Attorney at Law, New Orleans, LA, Stephen K. Conroy, Christine W. Marks, Attorneys at Law, Metairie, LA, Daniel A. Ranson, Ryan C. Higgins, Attorneys at Law, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| ¡¡Plaintiff, John T. Scurlock, Jr. (“Tom”), appeals the trial court judgment sustaining defendants’ exceptions of prescription and dismissing his petition to reopen the succession of his mother, Frances Carr Scur-lock. He also appeals the denial of his motion for new trial. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Frances Carr Scurlock (“Frances”) died on September 7, 1990. She was survived by her husband, John T. Scurlock, Sr. (“John”), as well as her four children, Tom, Frank, Jeffrey, and Steven. Frances left a last will and testament, executed on August 21, 1990, in which she bequeathed 25 percent of her interest in some property in Kenner, Louisiana to Tom. The remainder of her estate was bequeathed to John and to her other three children, subject to a usufruct in favor of John.

A “Petition for Probate and for Possession,” naming John, Tom, Frank, Jeffrey, and Steven as petitioners, was filed on December 6, 1991. That same day, the trial court signed a “Judgment of Possession” in accordance with the terms set Lforth in Frances’ last will and testament. The judgment of possession was apparently amended thereafter on two occasions: May 12, 1994, and July 15, 2005.

On July 20, 2012, Tom filed a “Petition to Reopen Succession, for Amended Judgment of Possession and Delivery of Legi-time.” In his petition, Tom asserts that the bequests to him in Frances’ will were less than the forced portion reserved to him under Louisiana law at the time of her death. Tom claims that he suffers from Bipolar Disorder I, which has caused him to be an absentee who has remained missing from his family for most of his life, including when his mother died, when her will was probated, and when the judgments of possession were rendered. He asserts that he was never given notice of the succession proceedings pertaining to Frances’ estate. Tom contends that he did not learn of his potential rights as a forced heir in his mother’s estate until he was contacted in 2011 by the attorney appointed for him in his father’s succession proceedings. In his petition, Tom requests that Frances’ succession be reopened, that the judgment of possession last rendered on July 15, 2005, be amended to recognize his rights as a forced heir entitled to one-eighth of her estate, and that his legitime be delivered.

On December 14, 2012, Patricia Scurlock (“Patricia”), in her capacity as the testamentary executrix of John T. Scurlock, Sr.’s succession, filed exceptions of prescription and no cause of action, seeking dismissal of Tom’s petition to reopen Frances’ succession. Patricia asserts that in Tom’s petition, he is seeking reduction of an excessive donation, which is subject to liberative prescription of five years. She contends that because Tom did not bring his claim until 20 years after Frances’ IfiWill was probated and a judgment of possession was rendered, his claim is clearly prescribed.

Patricia also asserts that Tom has no cause of action, because: 1) he was a petitioner in the original petition for probate and possession filed in Frances’ succession proceeding; and 2) a claim for reduction of an excessive donation cannot be brought by a petition to reopen a succession under LSA-C.C.P. art. 3393. On December 26, 2012, Frank and Jeffrey filed exceptions of prescription and no cause of action raising the same arguments as Patricia raised in her exceptions.

In opposition to the exceptions of prescription and no cause of action filed by Patricia, Frank, and Jeffrey, Tom filed a memorandum asserting that he has set forth proper cause for reopening Frances’ succession, pursuant to LSA-C.C.P. art. 3393. He also contends that defendants’ exceptions are premature and that prescription of Tom’s claims was suspended under the doctrine of contra non valen-tum, because Tom was an absentee, incompetent, and disabled, which prevented him from discovering his rights as a forced heir. He further claims that although he was listed as a petitioner in the pleadings to initiate Frances’ succession proceedings, he, in fact, had no knowledge of these proceedings or his rights as a forced heir.

The exceptions of prescription and no cause of action came for hearing before the trial court on April 30, 2013. At the conclusion of the hearing, the trial court granted the exceptions of prescription filed by defendants, dismissed the petition to reopen Frances’ succession, and found the exceptions of no cause of action to be moot.

On May 9, 2013, Tom filed a motion for new trial, arguing that the trial court incorrectly applied the five-year prescriptive period in LSA-C.C. art. 3497 for reduction of an excessive donation to this case. He asserts that neither | (¡defendants nor the trial court has cited a prescriptive period for reopening a succession, and that he has set forth good and proper cause for reopening the succession in this case. After a hearing on July 2, 2013, the trial court denied Tom’s motion for new trial. Tom appeals.

LAW AND DISCUSSION

On appeal, Tom asserts that the trial court erred in granting defendants’ exceptions of prescription, dismissing Tom’s petition to reopen Frances’ succession, and denying Tom’s motion for new trial, where any applicable prescriptive period had not run or was suspended under the doctrine of contra non valentum. He claims that prescription has not run against his cause of action to nullify the judgment of possession, because his petition was filed on July 20, 2012, which was less than one year after Tom’s discovery of defendants’ fraud or ill practices in obtaining the judgments of possession which impinge on his rights as a forced heir. He further contends that even if the five-year prescriptive period for an action for reduction of an excessive donation applies, prescription was suspended under the doctrine of contra non valentum because Tom was an absentee, incompetent, and defendants filed a petition for probate falsely stating that Tom was a petitioner, which prevented him from asserting his undisputed rights as a forced heir.

LSA-C.C. art. 1503 provides that a donation mortis causa that impinges on the legitime of a forced heir is not null but is merely reducible to the extent necessary to eliminate the impingement. When a testator disposes of her entire estate to the prejudice of a forced heir, the donation mortis causa is subject to an action by the forced heir for reduction of the donation and for recovery of the legitime. Kilpatrick v. Kilpatrick, 625 So.2d 222, 225 (La.App. 2 Cir. 9/22/93), writ denied, 631 So.2d 445 (La.1994). Where the plaintiff makes no attack on the |7validity of the will and seeks only to recover his legitime, such an action can only be construed as one for reduction of an excessive donation. Id.

In the present case, Tom’s petition to reopen Frances’ succession does not contain any language requesting annulment of the judgments of possession. Rather, in his petition, Tom requests that the succession be reopened for amendment of the judgments of possession to recognize his rights as a forced heir and for delivery of his legitime under the law. Because Tom has made no attack on the validity of Frances’ will and seeks only to recover his legitime, this action must be construed as one for reduction of an excessive donation.

The five-year prescriptive period set forth in LSA-C.C. art. 3497 is applicable to claims for reduction of an excessive donation. A cause of action to reduce an excessive donation arises when the will is probated, and the five-year prescriptive period begins to run at that time. West v. Gajdzik, 425 So.2d 263 (La.App. 3 Cir. 12/22/82), writ denied, 428 So.2d 475 (La.1983). If the forced heir fails to bring a claim to reduce the donation and to claim his legitime within the five-year prescriptive period, ownership of the donation by the donee or legatee is maintained. Kilpatrick, 625 So.2d at 226.

In the instant case, Frances’ will was probated in December of 1991. Tom did not file his petition to reopen succession, seeking reduction of an excessive donation, until over 20 years later, in July of 2012. Clearly, the five-year prescriptive period expired. Nevertheless, Tom claims that his claim is not untimely, because prescription was suspended under the doctrine of contra non valentum. He asserts that defendants’ petition for probate and possession in Frances’ succession proceedings contains false statements that he was a petitioner in order to obtain a judgment of possession without notifying him, thereby preventing him from asserting his undisputed rights as a forced heir. He also Isdaims that he was an absentee, disabled, incompetent, not served with any pleadings, and unable to recognize or assert his rights as a forced heir.

Prescription runs against absent persons and incompetents, unless an exception has been established by legislation. LSA-C.C. art. 3468. Louisiana has recognized a limited jurisprudential exception to the running of prescription, known as contra non valentum, where in fact and for good cause, a plaintiff is unable to assert a cause of action when it accrues. In re: Succession of Ferguson, 47,941 (La.App. 2 Cir. 5/29/13), 114 So.3d 1260, 1263.

Contra non valentum is based on the theory that when the claimant is not aware of the facts giving rise to his cause of action against a defendant, the running of prescription is suspended until the plaintiff discovers or should have discovered the facts on which the action is based. Id. It is not necessary to have actual knowledge as long as there is constructive knowledge. Wells v. Zadeck, 11-1232, p. 9 (La.3/30/12), 89 So.3d 1145, 1151; Kilpatrick, 625 So.2d at 227. For purposes of contra non valentum, a plaintiff will be deemed to know what he could have learned with reasonable diligence. Caro v. Bradford White Corp., 96-120, p. 6 (La.App. 5 Cir. 7/30/96), 678 So.2d 615, 618.

The doctrine of contra non valen-tum may apply when: (1) there is some legal cause which prevented the court or its officers from taking cognizance of and acting on the plaintiff’s actions; or (2) where there is some condition coupled with the contract or coupled with the proceedings which prevented the creditor from suing or acting; or (3) where the debtor has done some act effectually to prevent the creditor from availing himself of his cause of action; or (4) where the cause of action is not known or reasonably knowable by the plaintiff even though his ignorance is not induced by the defendant. Kilpatrick, 625 So.2d at 226; West v. Gajdzik, 425 So.2d at 266-267.

| ;)In the present case, Tom admits that he was informed of his mother’s death in 1990. Tom assumed that his mother had left her assets to his father, who was living at the time, so he did not feel it was necessary to contact his father or siblings. While it may be true that Tom had no knowledge of Frances’ succession proceedings and that he was not aware that he was listed as a petitioner in those proceedings, it is undisputed that he did not contact any family members or make any efforts to obtain information pertaining to his mother’s succession or estate.

In 2012, Tom was evaluated by Dr. Brian Jordan, a clinical psychologist, who opined that due to Tom’s bipolar disorder, he has generally been incapable in his lifetime of having passively acquiesced in the legal proceedings concerning the estates of his parents. However, Dr. Jordan also notes in his report that Tom has obtained two colleges degrees, including one in computer science. It is noted that while Tom’s illness may have caused negative consequences in his life, he has never been interdicted, and the record does not establish that he was unable to obtain the necessary information to assert his claims of forced heirship in his mother’s succession. Based on our review of the record before us, we find that the doctrine of contra non valentum does not apply in this case.

Tom failed to file his action seeking reduction of excessive donation within five years of the probate of his mother’s will, and no exception to the running of prescription has been shown by the facts of this case. Accordingly, we find no error in the trial court’s judgment granting the exceptions of prescription filed by defendants.

On appeal, Tom also argues that the trial court erred in dismissing Tom’s petition to reopen Frances’ succession, because there is proper cause to reopen the succession, pursuant to LSA-C.C.P. art. 3393. However, considering our finding that 110Tom’s claims for reduction of excessive donation, which is the relief sought in the petition, have prescribed, we pretermit discussion of this assignment of error.

Finally, Tom argues that the trial court erred in excluding Tom’s proffered testimony on his petition to reopen the succession. He claims that his proffered testimony is “highly relevant” to the issue of whether there is proper cause to reopen the succession.

At the hearing on defendants’ exceptions, counsel for Tom stated that testimony needed to be taken from Tom regarding his knowledge of events and other matters, and he asked to be allowed to submit an affidavit from Tom. Counsel for defendants objected, noting that he did not know what the' affidavit would say and that he did not believe there was a basis to submit an affidavit. The trial court sustained defendants’ objection, noting that the record was clear that from the time of Frances’ death to the present, Tom was never interdicted, imprisoned, or barred physically or mentally from inquiring into the succession proceedings of his mother. However, the trial court allowed Tom to submit an affidavit as a proffer.

LSA-C.E. art. 103(A) provides that error may not be predicated on a ruling which excludes evidence unless a substantial right of the party is affected. The question to determine whether a party was prejudiced by a court’s alleged erroneous ruling is whether the error, when compared to the entire record, had a substantial effect on the outcome of the case. Jennings v. Ryan’s Family Steak House, 07-0372, p. 10 (La.App. 1 Cir. 11/2/07), 984 So.2d 31, 39. The party alleging error has the burden of showing that the error was prejudicial to his case. Cash v. K.C.I. Const., Inc., 95-1083, p. 9 (La.App. 5 Cir. 5/15/96), 675 So.2d 297, 301, writ denied, 96-1811 (La.10/25/96), 681 So.2d 369.

|nIn the instant case, we find no error in the trial court’s exclusion of Tom’s testimony or affidavit, as the pertinent facts concerning the exceptions of prescription were generally undisputed. Nevertheless, even if we were to consider Tom’s affidavit, which was proffered, it would not affect our determination that the trial court did not err by granting defendants’ exceptions of prescription.

Patricia, Frank, and Jeffrey Scurlock filed answers to the appeal, in which they asked this Court to consider and grant their exceptions of no cause of action, in the event that this Court reverses the judgment granting their exceptions of prescription. Considering our decision to affirm the trial court’s judgment sustaining the exceptions of prescription, there is no need to address the exceptions of no cause of action.

DECREE

For the foregoing reasons, we affirm the trial court judgment sustaining the exceptions of prescription filed by defendants and dismissing Tom’s petition to reopen Frances’ succession. We also affirm the denial of Tom’s motion for new trial.

AFFIRMED.

      . The amended judgments of possession are not contained in the designated appellate record. However, the parties do not contend that these amendments were substantial or pertinent to the issues on appeal.

      . The record reflects that John T. Scurlock, Sr. died on September 27, 2008.


author: ROBERT A. CHAISSON, Judge.

text:
    Joan W. POWELL v. GRAMERCY INSURANCE COMPANY, Akeisha N. Dorsey, Joseph T. Robinson and RaceTrac Petroleum, Inc.
    No. 13-CA-928.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 23, 2014.

      James B. Guest, Attorney at Law, Ken-ner, Louisiana, Counsel for Plaintiff/Appellant.
    Quentin F. Urquhart, Jr., Douglas J. Moore, Stephen G.A. Myers, Elizabeth R. Richard, Attorneys at Law, New Orleans, Louisiana, Counsel for Defendant/Appel-lee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   ROBERT A. CHAISSON, Judge.

[¡Joan W. Powell appeals from a summary judgment dismissing with prejudice her suit against RaceTrac Petroleum, Inc. (“RaceTrac”) for injuries she sustained in its parking area when struck by a vehicle being driven by a RaceTrac employee. For the following reasons, we affirm that judgment.

FACTS AND PROCEDURAL HISTORY

The basic facts are not in dispute. Akei-sha Dorsey was employed by RaceTrac at its convenience store on Almedia Road in St. Rose, Louisiana. On October 10, 2010, the day of the accident, she reported to work a little after 2:00 p.m., but left for a doctor’s appointment at 3:45 p.m., and returned to the store at about 6:00 p.m. Ms. Powell was at the store to purchase a propane tank. She had parked in the handicap zone in front of the store and was standing next to her vehicle as Ms. Dorsey drove into the parking lot. Ms. Dorsey was approaching from the opposite side from where Ms. Powell was standing, and did not see Ms. Powell until she turned into the parking space. By the time Ms. Dorsey saw |sMs. Powell standing in the parking space, she was unable to avoid striking Ms. Powell with her vehicle.

Ms. Powell filed suit against Ms. Dorsey, RaceTrac, and various insurers. She advanced several theories as to RaceTrac’s liability. The first was vicarious liability of the store owner for the negligent acts of its employee. She also asserted that the employer was liable for negligent training and supervision of the employee, and lastly, that there was a defect in the premises. On March 27, 2012, the trial judge entered summary judgment in RaceTrac’s favor on Ms. Powell’s vicarious liability claim on grounds that Ms. Dorsey was not in the course and scope of her employment at the time of the accident. Ms. Powell appealed that judgment, but the appeal was dismissed by this court on grounds that it was a non-appealable judgment pursuant to La. C.C.P. arts. 966(E) and 1915(A)(3). On July 11, 2012, a second summary judgment was entered, this time dismissing the negligent training and supervision claim and the premises defect claim. As to the negligent training issue, the trial judge ruled that there was no duty on the part of the employer to train and supervise an employee as to safe driving while not engaged in employment related activities. As to the premises defect claim, the judge noted that there was no evidence to even suggest such a defect. Ms. Powell appeals both judgments.

DISCUSSION

Summary judgments are reviewed de novo; that is, the appellate courts review the record to determine if there are indeed no issues as to material facts, and whether the movant is entitled to judgment as a matter of law. Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc. 06-1827 (La.5/22/07), 958 So.2d 634. La. C.C.P. art. 966(C)(2) provides that when the movant will not bear the burden |4of proof at trial, it is sufficient to show that there is an absence of factual support for one or more elements essential to the opposing party’s claim.

In regard to the vicarious liability of the employer for acts of its employees, an essential element of the claim is that the employee was acting in the course and scope of her employment. In Orgeron v. McDonald, 639 So.2d 224 (La.1994), the court discussed in detail the application of the “course and scope” concept and initially pointed out that an employer is answerable for the damage occasioned by his servant in the exercise of the functions in which the servant is employed. Id. at 226. It went on to explain that:

An employer is responsible for the negligent acts of its employee when the conduct is so closely connected in time, place, and causation to the employment duties of the employee that it constitutes a risk of harm attributable to the employer’s business. In determining whether the employee’s conduct is employment-rooted, the court assesses several factors, including the payment of wages by the employer, the employer’s power of control, the employee’s duty to perform the particular act, the time place and purpose of the act in relation to the service of the employer, the relationship between the employee’s act and the employer’s business, the benefits received by the employer from the act, the motivation of the employee for performing the act, and the reasonable expectation of the employer that the employee would perform the act. (Citations omitted) Id. at 227.

The Orgeron court then turned to a discussion of the situation where an employee is either going to, or coming from the workplace, and stated that “[t]he going and coming rule applies nicely when the employee has a fixed place of work, so that his traveling back and forth between home and his fixed place of work is almost never in the course of employment.” Id. In Davis v. Green, 44,033 (La.App. 2 Cir. 2/25/09), 5 So.3d 291, an employee leaving work to pick up her child at day care had collided with another car in her employer’s parking lot. The court, citing Orgeron, ruled that th'e “going and coming” rule precluded recovery against the employer. The court noted the list of factors set forth in Orgeron and concluded that the employee had clocked out, was on a personal errand, and that |fithe actions had nothing to do with the employer’s business and did not benefit the employer’s business in any way. Id. at 296-97.

In the present case, it is undisputed that the employee had left work to see a doctor and was returning to her job when the accident occurred. It is also undisputed that her work duties did not involve driving to and from the work place. She was not being paid for the time she was away and the employer had no control over her actions. Ms. Dorsey’s action of leaving work for the purpose of attending a personal appointment was not in furtherance of the employer’s business interests. Likewise, her action of returning to work after attending to a personal errand, even though the purpose of her return was so that she could resume her work duties, was not an act in furtherance of the employer’s business interests. To find otherwise would run contrary to the general rule that an employee’s commute to work is not in the course and scope of employment. Considering all of these factors, it is evident that there were no facts in dispute which could lead to the imposition of vicarious liability on the part of RaceTrac. Therefore, the summary judgment in its favor as to Ms. Powell’s vicarious liability claim was proper.

Ms. Powell also urges that it was error for the trial judge to enter summary judgment on her claim of improper training and supervision, and on her claim of premises liability, because discovery was not yet complete. As noted in Johnson v. Littleton, 45,323 (La.App. 2 Cir. 5/19/10), 37 So.3d 542, a motion for summary judgment may be made at any stage of the proceedings and a trial judge does not abuse his discretion in rendering summary judgment so long as no probable injustice results. Ms. Powell argues that she should have been allowed to discover the employer’s handbook for employees to determine whether Ms. Dorsey was properly apprised of the rules and whether she violated them. However, these issues are irrelevant to the question of RaceTrae’s liability for negligent training | fibecause the trial judge had already determined that Ms. Dorsey was not in the course and scope of her employment at the time of the incident. RaceTrac has no duty to train its employees regarding acts that are outside the course and scope of their employment. Thus, there was no abuse of the trial judge’s discretion in ruling on the summary judgment motion without allowing further discovery because there was no possible injustice that might have resulted.

Although Ms. Powell mentions premises liability in brief, it was admitted at the hearing on the second summary judgment that none of the evidence or testimony of record indicated that there were any defects in the parking area of the RaceTrac store. In this circumstance, summary judgment on this issue was also appropriate.

CONCLUSION

For the foregoing reasons, the two summary judgments entered by the district court dismissing with prejudice this suit against RaceTrac Petroleum, Inc! are hereby affirmed.

AFFIRMED.

      . See Powell v. Gramercy Insurance Company, 12-CA-564 (La.App. 5 Cir. 3/13/13), 113 So.3d 343.


text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES in the Interest of L.P. v. F.P.
    No. 13-CA-894.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 23, 2014.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for the State of Louisiana/Appellant.
    Amanda L. Calogero, Ashley E. Amato, Assistant District Attorneys, Harvey, LA, for the State of Louisiana/Appellant.
    Panel composed of Judges ROBERT M. MURPHY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| j/The State of Louisiana, through the Department of Children and Family Services (“the State”), appeals the juvenile court judge’s order requiring the State to return to defendant, Frank Payne, his driver’s license, which was suspended for failure to pay child support. For the following reasons, we reverse the trial court’s ruling.

FACTS AND PROCEDURAL HISTORY

L.P., born on July 22, 2004, is the minor child of defendant, Frank Payne, and Shannon Crowley. In 2009, Ms. Crowley was receiving services from the State of Louisiana, Department of Children and Family Services, and on November 20, 2009, the State filed a Petition for Child Support against Mr. Payne, seeking support for L.P., with Ms. Crowley designated as the recipient.

|sOn January 27, 2010, the parties appeared before the hearing officer, who recommended that Mr. Payne be ordered to pay $505.05 per month for L.P.’s support and court costs, retroactive to the date of filing. Mr. Payne did not agree with the recommended support order, so he requested a disagreement hearing. At the hearing on March 1, 2010, the juvenile court judge upheld the hearing officer’s recommendation. On this date, the juvenile court judge also ordered that the arrears, in the amount of $1,924.00, be made executory.

The record shows that after the initial order of child support, Mr. Payne repeatedly failed to comply with the court’s orders by failing to pay the amount of child support ordered, resulting in the State having to file Motions for Contempt. Due to Mr. Payne’s failure to comply with the order of child support, the amount of arrears exceeded $5,000.00 by February of 2011. Mr. Payne also did not appear for court on numerous occasions, causing additional inconvenience for the parties and the court.

On March 19, 2013, the hearing officer recommended that Mr. Payne be held in contempt for violating the court’s order of support, finding that Mr. Payne had the ability to comply with the support order but refused to do so. Mr. Payne disagreed with the hearing officer’s recommendation and requested a disagreement hearing. At the disagreement hearing on April 1, 2013, the juvenile court made the arrears executory in the amount of $6,731.36. During the hearing, Mr. Payne indicated that there was a “hold” on his driver’s license and he asked if he could have it back. The State replied that he could not have his license back until his arrears were under $2,500.00. Mr. Payne stated that he would not be able to keep his job without a driver’s license, and the juvenile court judge stated, “I will give him his license back” and “I’m going to release the hold on the license.” | ¿Thereafter, the juvenile court judge signed a written judgment, ordering that the State return Mr. Payne’s driver’s license to him.

On April 3, 2013, the State filed a Motion for New Trial, arguing that the juvenile court judge erred by ordering the State to return Mr. Payne’s license and noting that license suspension is an effective administrative enforcement device used by the State. The State also noted that Mr. Payne’s arrears were $6,731.36 at that time. After a hearing on July 8, 2013, the juvenile court judge denied the Motion for New Trial. The State appeals.

LAW AND DISCUSSION

On appeal, the State argues that the juvenile court judge erred by removing the “hold” on Mr. Payne’s driver’s license. It asserts that the legislature has given the State the authority to suspend licenses for nonpayment of child support, and that this administrative function cannot be modified by the juvenile court without first exhausting the administrative remedies provided by law.

The Louisiana Revised Statutes authorize the suspension of a child support obli-gor’s driver’s license, either judicially or administratively, for nonpayment of support. The provisions and procedures for judicial suspension of a driver’s license are set forth in LSA-R.S. 9:315.30 et seq. The provisions and procedures for administrative suspension of a driver’s license are set forth in LSA-R.S. 9:315.40 et seq. While the record does not contain documentation pertaining to the nature of the suspension of Mr. Payne’s driver’s license, it is undisputed that Mr. Payne’s driver’s license was administratively suspended.

A brief review of the applicable and pertinent revised statutes is necessary to understand the procedure set forth by the legislature for administrative suspension of a child support obligor’s driver’s license. First, LSA-R.S. 9:315.41 provides Rthat the Department of Children and Family Services may send a notice of child support delinquency to an obligor who is not in compliance with a child support order informing him of the department’s intention to submit his name to the licensing authority for suspension of his license. Pursuant to LSA-R.S. 9:315.42(A), within 20 days after receipt of the notice of child support delinquency, the obligor may file a written objection requesting an administrative hearing to determine whether he is in compliance with an order of support. LSA-R.S. 9:315.42(B) states that if the obligor does not timely file a written objection or enter into an agreement with the department for periodic payments on a support arrearage, the department shall certify the obligor’s noncompliance to the licensing authority for license suspension. Pursuant to LSA-R.S. 9:315.43, upon receipt of a timely objection, the department shall conduct an administrative hearing in accordance with the Administrative Procedures Act. LSA-R.S. 9:315.45 provides that within 30 days after receipt of certification of noncompliance from the department, the licensing authority shall suspend the license of the licensee and notify him that his license has been suspended for noncompliance with an order of support. Finally, LSA-R.S. 9:315.47 sets forth that the licensing authority shall issue, reissue, or renew the obligor’s license upon receipt of a certified copy of a compliance or partial compliance release from the department.

As a general rule, a person aggrieved by the action of a state agency must exhaust all administrative remedies before being entitled to judicial review. Liberty Mut. Ins. Co. v. Louisiana Ins. Rating Commission, 97-1043, p. 7 (La.App. 1 Cir. 6/29/98), 713 So.2d 1250, 1254, writ denied, 98-2072 (La.11/6/98), 728 So.2d 396; Polk v. State, through Dept. of Transp. and Development, 538 So.2d 239, 250 (La.1989). The rationale of this requirement is that disputes pertaining to matters of agency regulation should ordinarily be addressed by the | ^administrative tribunals which the legislature created to decide such issues. Kenner Firefighters Association Local No. 1427 v. City of Kenner, 96-361, p. 6 (La.App. 5 Cir. 11/14/96), 685 So.2d 265, 268. The purpose of the exhaustion doctrine is to allow the agency whose decision is under attack the opportunity to review, supplement, and/or correct its decision, if necessary. Id.; Haygood v. Dies, 47,765, p. 12 (La.App. 2 Cir. 5/15/13), 114 So.3d 1206, 1214.

The legislature specifically gave the Department of Children and Family Services the authority to suspend an obligor’s driver’s license for noncompliance with a support order, and the procedure for administrative suspension of the obligor’s license is clearly set forth in detail in LSA-R.S. 9:315.40 et seq. In the present case, the parties agree that Mr. Payne’s license was administratively suspended by the department. The record does not show that Mr. Payne timely objected to the suspension of his license, requested an administrative hearing, or otherwise availed himself of the administrative remedies for return of his driver’s license. Rather, Mr. Payne simply asked for his license back at a hearing before the juvenile court judge, without filing any motion or providing notice of his request to the State, and the juvenile court judge granted his request.

The record shows that Mr. Payne has repeatedly failed to comply with the court’s child support orders. Thus, the Department of Children and Family Services was authorized to suspend his driver’s license for noncompliance with an order of support. Mr. Payne did not file an objection to the suspension of his license or request an administrative hearing, as required by LSA-R.S. 9:315.42 and LSA-R.S. 9:315.43. We are unaware of any provision in the law allowing a | juvenile court judge to overrule or rescind the administrative suspension of an obligor’s driver’s license without requiring compliance with the specific procedures set forth in LSA-9:315.40 et seq. Accordingly, we find that the juvenile court judge erred by ordering the State to return Mr. Payne’s driver’s license to him, and we reverse that ruling.

DECREE

For the foregoing reasons, we reverse the ruling of the juvenile court judge, releasing the “hold” on Mr. Payne’s driver’s license and ordering the State to return Mr. Payne’s license to him.

REVERSED.

      . Pursuant to LSA-R.S. 46:236.1.1 et seq., the State of Louisiana, Department of Children and Family Services, may take direct civil action against the biological parent of a child and obtain an order, judgment, or agreement of support for the child. See State Dept. of Children and Family Services ex rel. J.C. v. Charles, 13-527 (La.App. 5 Cir. 12/27/13), 131 So.3d 1054.

      . Mr. Payne has not filed an appellee brief with this Court in opposition to the State’s appeal.

      . At the hearing on the State's Motion for New Trial, the juvenile court judge stated that “perhaps if he had his driver's license back, he could then get another job, and make ever [sic] more payments." However, we note that the record provides no evidence to suggest that Mr. Payne would get another job if he had his license returned, considering that he consistently failed to make complete and timely child support payments before his license was suspended. Mr. Payne also admitted in court that he was getting a ride to work, and there is no evidence that he would lose his job without a driver’s license.