author: McDonald, j.

text:
    DEVON ENERGY PRODUCTION COMPANY, L.P. v. Cynthia BRIDGES, the Secretary of the Louisiana Department of Revenue.
    No. 2012 CA 0809.
    Court of Appeal of Louisiana, First Circuit.
    June 3, 2013.

      Lawrence L. Lewis, III, Lafayette, LA, for Plaintiff/Appellant Devon Energy Production Company, L.P.
    Antonio Charles Ferachi, Miranda Y. Conner, Baton Rouge, LA, for Defendant/Appellee Cynthia Bridges, The Secretary of the Department of Revenue, State of Louisiana.
    Before KUHN, PETTIGREW, and McDonald, jj.
   McDonald, j.

| ^Taxpayer appeals dismissal of his Petition for Refund of Severance Taxes Paid Under Protest. For the following reasons, we affirm.

FACTS

Plaintiff-Appellant, Devon Energy Production Company, LP (Devon), is an oil and gas exploration and production company. This suit was instituted by Devon seeking to recover one million, two hundred fifty thousand, one hundred thirty four dollars and thirty-three cents ($1,250,-134.33) in severance taxes and associated penalties and interest paid by it to the Louisiana Department of Revenue (the Department) arising out of an audit of oil and gas severance tax reports filed by Devon’s predecessor, Ocean Energy, Inc. (Ocean) for January 31, 2003 through August 31, 2003. Devon is the successor by merger to Ocean, the taxpayer that filed the severance tax reports at issue.

Appellee, the Department, conducted an audit of Ocean’s severance tax activities at various production sites during the stated period. The Department maintains that a severance tax deficiency for a number of production sites was revealed. Accordingly, in 2005 and 2006, the Department issued separate Notices of Proposed Assessment in accordance with La. R.S. 47:1562(B). The notices concerned the assessment of severance taxes, interest, and penalties. The taxpayer had thirty (30) days to protest the Department’s assessments in writing in accordance with La. R.S. 47:1563. No protest was filed.

After the expiration of the thirty (30) day protest period, the Department issued Notices of Assessment and Notice of Right to Appeal to the Louisiana Board of Tax Appeals, the Final Assessments. The taxpayer then had sixty (60) additional days to pay the taxes under protest or appeal to the Board of Tax Appeals (the Board). No action was taken. The final assessment notices contained a warning that the assessments would become final sixty (60) calendar days from |3the date of the notice. The notices also advised the taxpayer that to avoid the distraint procedure, it would be necessary to either (1) pay the assessment in full to the Department, (2) pay the assessment under protest, or (3) file a formal petition with the Board. Still no action was taken by the taxpayer. The Department took no action to collect this tax.

According to Devon, in 2009 it became aware that the Department was claiming additional amounts of severance taxes owed by Devon for the account of Ocean. Devon requested information from the Department regarding the amounts owed, which the Department provided. Devon chose not to submit payment because it believed that the amounts were owed by third parties. On November 17, 2009, Devon paid the balance due under protest, notifying the Department that the payment was under protest and that Devon intended to file suit for recovery of the amount paid. The suit for refund was filed on December 7, 2009.

Subsequently, the Department filed Exceptions Raising the Objections of No Cause of Action, No Right of Action, and Lack of Subject Matter Jurisdiction. The district court sustained the Department’s Exception Raising the Objection of No Cause of Action. Having sustained that exception, the district court found that the remaining exceptions were moot. Judgment to that effect was signed on February 28, 2012. This suspensive appeal followed.

Devon alleges that the district court erred in finding that Devon was precluded from proceeding under the payment under protest procedure of La. R.S. 47:1576 once the assessment becomes final.

DISCUSSION

Devon asserts that La. R.S. 47:1576A and La. R.S. 47:1561 are in conflict, and because La. R.S. 47:1576 was amended in 1991, it is the latest expression of legislative will and has the effect of tacitly repealing prior enactments in conflict |4with its provisions. They also maintain that the district court’s ruling is based upon the provisions of La. R.S. 47:1561.

The district court’s Ruling stated that:

This matter came before the court on the defendant’s exceptions of no cause of action and no right of action and the defendant’s exception of lack of subject matter jurisdiction. A hearing on these exceptions was conducted on the 9th day of January 2012.
The court, after review of the exceptions, memoranda, law and oral arguments by counsel sustains the defendant’s exception of no cause of action. Defendant’s two other exceptions are moot.
Specifically, the court finds that LSA 47:1431 and 1565 provides that a taxpayer may appeal to the Board of Tax Appeals for a redetermination of an assessment by filing a petition -with the Board within 60 calendar days from the date of the notice of the assessment. There was no such appeal and therefore the assessment is final. The taxpayer may not proceed under the payment under protest procedure when the assessment has become final as it has in this matter.
Judgment to be signed accordingly.

Contrary to Devon’s assertions, the court’s ruling reveals that the court relied on La. R.S. 47:1431 and La. R.S. 47:1565.

However, regardless of the exact provisions of the tax code on which the court relied, we do not find any error in its judgment. It is axiomatic that “[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. C.C. art. 9. Of equal importance in the case before us is La. Civ.Code art. 13 which provides, “[l]aws on the same subject matter must be interpreted in reference to each other.” Rather than finding a conflict between La. R.S. 47:1576 and La. R.S. 47:1561, we find that they refer to the procedures to be followed in two separate instances.

Louisiana Revised Statutes 47:1561 is found in Part III of the tax code entitled Assessment and Collection Procedures. Specifically, La. R.S. 47:1561 is entitled “Alternative remedies for the collection of taxes”, and provides:

In addition to following any of the special remedies provided in the various chapters of this subtitle, the collector may, in his discretion, proceed to enforce the collection of any taxes due under |fithis subtitle by means of any of the following alternative remedies or procedures:
(1) Assessment and distraint, as provided in R.S. 47:1562 through 47:1573.
(2) Summary court proceeding, as provided in R.S. 47:1574.
(3) Ordinary suit under the provisions of the general laws regulating actions for the enforcement of obligations.
The collector may choose which of these procedures he will pursue in each case, and the counter-remedies and delays to which the taxpayer will be entitled will be only those which are not inconsistent with the proceeding initiated by the collector, provided that in every case the taxpayer shall be entitled to proceed under R.S. 47:1576 except (a) after he has filed a petition with the board of tax appeals for a redetermination of the assessment, or (b) when an assessment for the tax in question has become final or (c) when a suit involving the same tax obligation is pending against him; and provided further, that the fact that the collector has initiated proceedings under the assessment and distraint procedure will not preclude him from thereafter proceeding by summary or ordinary court proceedings for the enforcement of the same tax obligation. [Emphasis provided.]

Louisiana Revised Statutes 47:1576, also in Part III, is entitled “Remittance of tax under protest; suit to recover” and provides:

A. (l)(a) Except as otherwise provided in Subsection B of this Section, any taxpayer protesting the payment of any amount found due by the secretary of the Department of Revenue, or the enforcement of any provision of the tax laws in relation thereto, shall remit to the Department of Revenue the amount due and at that time shall give notice of intention to file suit for the recovery of such tax.
(b) In the case of sales or use taxes that are required to be collected and remitted by a selling dealer as provided for in R.S. 47:304, the purchaser, in order to avail himself of the alternative remedy provided by this Section, shall remit protested sales or use tax to the selling dealer, and shall retain copies of documentation evidencing the amount of the sales or use tax paid to the dealer on the transactions. On or before the twentieth day of the month following the month of the transactions on which the selling dealer charged the tax, the purchaser shall inform the department by certified mail or other reasonable means of the dates and amounts of the protested taxes that were charged by the selling dealer, and shall give notice of the purchaser’s intention to file suit for recovery of the tax.
(2) Upon receipt of this notice, the amount remitted to the Department of Revenue or the amount of protested taxes that have been paid to the selling dealer shall be placed in an escrow account and held by the secretary or his duly authorized representative for a period of thirty |fidays. If suit is filed for recovery of the tax within the thirty-day period, the funds in the escrow account shall be further held pending the outcome of the suit.
(3) If the taxpayer prevails, the secretary shall refund the amount to the claimant, with interest at the rate established pursuant to R.S. 13:4202(B) from the date the funds were received by the Department of Revenue or the due date, determined without regard to extensions, of the tax return, whichever is later, to the date of such refund. Payments of interest authorized by this Section shall be made from funds derived from current collections of the tax to be refunded.
(4) There shall be no penalty for underpayments of estimated tax with regard to amounts paid under protest and such amounts paid under protest are not required to be paid until the due date of the return determined without regard to extensions.
B.For income and corporation franchise tax purposes, in instances where the payment of tax under protest is required to be made before the amount of tax due is determinable, the taxpayer shall have thirty days from the due date of the tax return, or the extended due date of such return if applicable, to file suit for the recovery of such tax. If suit is filed within the thirty-day period and the taxpayer prevails, the secretary shall refund the amount to the claimant, with interest at the rate established pursuant to R.S. 13:4202 computed pursuant to R.S. 47:287.657 or R.S. 47:617 in the case of corporation taxes or R.S. 47:115 in the case of individual income tax.
C. This Section shall afford a legal remedy and right of action in any state court having jurisdiction of the parties and subject matter, for a full and complete adjudication of any and all questions arising in the enforcement of this Subtitle as to the legality of any tax accrued or accruing or the method of enforcement thereof. In such action, service of process upon the secretary shall be sufficient service, and he shall be the sole necessary and proper party defendant in any such suit.
D. This Section shall be construed to provide a legal remedy in the state courts in case such taxes are claimed to be an unlawful burden upon interstate commerce, or the collection thereof, in violation of any Act of Congress or the United States Constitution, or the Constitution of Louisiana.
E. Upon request of a taxpayer and upon proper showing by such taxpayer that the principle of law involved in an additional assessment is already pending before the courts for judicial determination, the taxpayer, upon agreement to abide by the decision of the courts, may remit the additional assessment under protest, but need not file an additional suit. In such cases, the tax so paid under protest shall be placed in an escrow account and held by the secretary until the question of law involved has been determined by the courts and shall then be disposed of as therein provided.

17The provisions of La. R.S. 47:1561 are regarding procedures to be followed by the tax collector to collect taxes. Louisiana Revised Statutes 47:1576 provides instruction to the taxpayer if he chooses to pay under protest. However, clearly, a taxpayer has to have the right to utilize the procedure in order to pay under protest. This right is provided to taxpayers in accordance with, among other provisions of the tax code, La. R.S. 47:1561. And as noted, after an assessment becomes final, as it has in this case, the taxpayer may no longer utilize the payment under protest statutes.

In the matter before us, the tax assessment had become final. Ocean (Devon) did not take action to dispute the tax assessment within the 60 days provided by law in which it could have filed an appeal with the Board for a redetermination of the proposed assessment as provided in La. R.S. 47:1565, as follows:

§ 1565 Notice of assessment and right to appeal
A.Having assessed the amount determined to be due, the secretary shall send a notice by certified mail to the taxpayer against whom the assessment is imposed at the address given in the last report filed by said taxpayer, or to any address obtainable from any private entity which will provide such address free of charge or from any federal, state, or local government entity, including but not limited to the United States Postal Service or from United States Postal Service certified software. If no report has been timely filed, the secretary shall send a notice by certified mail to the taxpayer against whom the assessment is imposed at any address obtainable from any private entity which will provide such address free of charge or from any federal, state, or local government entity, including but not limited to the United States Postal Service or from United States Postal service certified software. This notice shall inform the taxpayer of the assessment and that he has sixty calendar days from the date of the notice to either pay the amount of the assessment or to appeal to the Board of Tax Appeals for a redetermination of the assessment. All such appeals shall be made in accordance with the provisions of Chapter 17, Subtitle II of this Title.
B. If the taxpayer has not filed an appeal with the Board of Tax Appeals within the sixty day period, the assessment shall be final and shall be collectible by distraint and sale as hereinafter provided. If an appeal for a redetermination of the assessment has been filed, the assessment shall not be collectible by distraint and sale |suntil such time as the assessment has been redetermined or affirmed by the Board of Tax Appeals or the court which last reviews the matter.
C. (1) No assessment made by the secretary shall be final if it is determined that the assessment was based on an error of fact or of law. An “error of fact” for this purpose means facts material to the assessment assumed by the secretary at the time of the assessment to be true but which subsequently are determined by the secretary to be false. “Error of law” for this purpose means that in making the assessment the secretary applied the law contrary to the construction followed by the secretary in making other assessments.
(2) The determination of an error of fact or of law under this Subsection shall be solely that of the secretary, and no action against the secretary with respect to the determination shall be brought in any court, nor shall any appeal relating thereto be brought before the board of tax appeals, and no court shall have jurisdiction of any such action nor the board of tax appeals of any such appeal, it being the intent of this Subsection only to permit the secretary to correct manifest errors of fact or in the application of the law made by the secretary in making the assessment; however, all reductions of assessments based on such errors, except estimated assessments made due to the failure of the taxpayer to file a proper tax return, must be approved and signed by the secretary, and the assistant secretary or the deputy assistant secretary of the office of legal affairs of the Department of Revenue, and shall then be approved by the board of tax appeals and signed by the chairman thereof. Estimated assessments made due to the failure of the taxpayer to file a proper tax return may be corrected by the acceptance of the proper tax return and must be approved by the secretary or his designee.
(3) The remedies of a taxpayer aggrieved by any action of the secretary are by appeal to the board of tax appeals or by payment of the disputed tax under protest and suit to recover as provided in this Subtitle. [Emphasis added.]

Reading the applicable provisions of the tax code in reference to each other, as the law requires, we find that Devon’s predecessor received the notice required by law of the assessment and the rights it had to dispute the assessment. No action offered in the tax code to appeal the assessment (payment under protest or appeal to the Board) was taken; and the tax assessments were final, eliminating the right to pay under protest. We note that the original assessments were sent to Devon’s predecessor Ocean, and that after the acquisition of Ocean by merger, Devon’s agent was working with the Department to resolve conflicts. However, we do not 19find any provisions in the tax code that relieve a taxpayer from the obligation to pay final assessments. Devon’s belief that the taxes were owed by third parties does not need to be examined by this court. The action taken by Devon’s agent establishes that Devon recognized the position it held regarding Ocean’s obligations. This court is reviewing the district court’s finding that Devon had no cause of action after the 60 day period after which the proposed assessment became final. We agree.

The Department filed an answer to the appeal in which it asserts, “[t]he District Court’s failure to additionally sustain the Department’s Exceptions of No Right of Action and Lack of Subject Matter Jurisdiction was in error, and the judgment should be revised to additionally sustain the Department’s Exceptions of No Right of Action and Lack of Subject Matter Jurisdiction.” The district court did not review the Department’s Exceptions of No Right of Action and Lack of Subject Matter Jurisdiction, finding them to be moot once it had found that there was no cause of action available to plaintiff. We do not find this to be an error by the court. We decline to act on these other exceptions filed by the Department.

CONCLUSION

Having thoroughly reviewed the law, record, and evidence before us, we find no error in the district court’s judgment. Accordingly, it is affirmed. Costs are assessed against Devon Energy Production Company, L.P.

AFFIRMED.

      . Seizure Black's Law Dictionary, Sixth Edition.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Shelby FIELDS.
    No. 2012-KA-0674.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 19, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defen-danf/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

1?A few days after his sentencing for a felony, Shelby Fields was visited by probation officers at the house he had identified to them as his residence. While inspecting the house, one of the probation officers observed the butt or handle of a firearm between the mattresses of a bed. A less-than-unanimous jury convicted him of being a convicted felon in possession of a firearm, a violation of La. R.S. 14:95.1. He was adjudicated a second felony offender and sentenced to ten years. Mr. Fields assigns five errors.

We first consider his argument that the evidence is insufficient to support a guilty verdict under the well-known Jackson v. Virginia standard. Based upon our review of all of the evidence, we conclude that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find that all the elements of La. R.S. 14:95.1 were proven beyond a reasonable doubt.

We next consider his argument that the trial judge abused his discretion in denying the motion to suppress the evidence. Because we find that the probation officers were authorized to be present in his dwelling, were authorized to |,^investigate whether he had been residing there, and observed the firearm in plain view, the prosecution established a well-recognized exception to the warrant requirement and the seizure of the firearm was lawful.

We then consider Mr. Fields’ argument respecting the hearing on his motion for new trial and the absence of his trial counsel. In order to decide this claim, we need not decide whether a hearing on a motion for new trial is a critical stage of the proceedings against Mr. Fields. The only arguments raised in the motion for new trial were (i) whether the prosecution produced sufficient evidence to prove beyond a reasonable doubt that Mr. Fields had possession of the weapon, and (ii) whether the probation agents had the authority to enter the dwelling and conduct a walkthrough of the residence, including the bedroom where the weapon was found. Because we dispose of both of these assignments in the treatment of the preceding assignments of error, we find that Mr. Fields cannot show any prejudice either in the denial of his motion or in the absence of his trial counsel at the hearing. Thus, no relief can be granted with respect to this assignment of error.

We then consider his argument about the sentence and the ten-year “cleansing period” between his 1998 first conviction and his current conviction as a convicted felon in possession of a firearm. We conclude that, even if we could find that Mr. Fields preserved this issue for appellate review, this assignment requires no relief from us because Mr. Fields received the minimum sentence available whether or not he is adjudicated an habitual offender.

We explain in greater detail our dispositions of these assignments of error in the Parts which follow. But before we begin our explanation, we consider and summarily dispose of Mr. Fields’ final assignment of error, which is that the Sixth Amendment, as incorporated by the Fourteenth Amendment, requires a unanimous _yury verdict, and that as a result La. Const, art. I, § 17 and La.C.Cr.P. art. 782 A, which authorize less-than-unanimous juries in certain cases, are unconstitutional. We reject this contention without further elaboration. See State v. Bertrand, 08-2215, 08-2311 (La.3/17/09), 6 So.3d 738, and its progeny.

Thus, we affirm the conviction and sentence of Mr. Fields.

We now turn to a fuller explanation of those matters we indicated above.

I

Following guilty pleas to felonies involving possession of controlled dangerous substances (heroin and cocaine), Shelby Fields was placed on active or supervised probation as a condition of receiving suspended sentences. Shortly afterwards, he appeared for his first meeting with probation officer Peter Barr. The officer identified the conditions of probation, which was signed by the officer and the defendant. In that meeting Mr. Fields confirmed his current residence to be 8910 Gervais Street and scheduled a subsequent meeting to take place a week later. |sThe subsequent meeting was to be his first appointment with Agent Joseph Spino, the probation officer assigned to him. But Mr. Fields failed to appear for his appointment with Agent Spino.

The following day, Agent Spino and Agent Francisco Dean went to the Gervais Street house to perform a residence check. When the officers arrived at the residence, Agent Spino knocked on the door. A male voice asked, “Who is it?” Agent Spino announced, “Probation.” Thirty to forty seconds went by, and the officer told the man to open the door. Mr. Fields then opened the door, and the officers entered the residence. Agent Spino asked Mr. Fields why he missed his appointment. He replied that he forgot about the appointment. The officer noticed a female, later identified as Mr. Fields’ girlfriend, standing in the hallway at that time. Agent Spino asked Mr. Fields which bedroom was his, and the female stated that they could not go in there. Agent Spino explained that under the conditions of probation, the officers had the right to conduct a monthly residence check to verify a probationer’s residency. At that time, Agent Dean entered the bedroom. Mr. Fields informed Agent Spino that he would not be staying with his girlfriend because they were not getting along. He also advised the officer that he would be moving to another address.

As Agent Dean entered the bedroom, he saw the handle of a pistol in plain view lodged between the mattress and the box spring of the bed. Agent Dean secured the weapon and advised Agent Spino that there was a weapon in the residence. Agent Dean testified that the weapon, a .40 caliber Smith & Wesson semiautomatic pistol, was loaded. The magazine had thirteen live rounds.

Mr. Fields and his girlfriend were advised of their Miranda rights. Mr. Fields stated that he knew to whom the gun belonged, and that he would take the |ficharge. Agent Dean testified that the bedroom appeared to be co-habited by a male and female. There were approximately nine pairs of men’s shoes and several men’s shirts in the bedroom.

II

In this Part we first consider Mr. Fields’ claim of insufficiency of evidence to support a guilty verdict. See State v. Hearold, 603 So.2d 731, 734 (La.1992); State v. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55. We, of course, conduct a sufficiency-review under the well-known Jackson v. Virginia standard. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18 (determine whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt).

The essential elements of the offense of violating La. R.S. 14:95.1 are: 1) the defendant possessed the firearm, 2) the defendant had a prior conviction for an enumerated felony, 3) the defendant possessed the firearm within ten years of the prior conviction, and 4) the defendant had the general intent to commit the offense. See State v. Husband, 437 So.2d 269, 271 (La.1983); State v. Ussin, 08-1577, p. 2 (La.App. 4 Cir. 4/8/09), 10 So.3d 848, 849. Here, Mr. Fields’ objection focuses on the “possession” element, as he concedes sufficient proof of prior convictions within the ten-year cleansing period.

Actual possession of a firearm is not necessary to prove the possession element of La. R.S. 14:95.1; constructive possession is sufficient. See State v. Day, 410 So.2d 741, 743 (La.1982). A person is in constructive possession of a firearm if the firearm is subject to his dominion and control. See State v. Johnson, 03-1228, p. 5 (La.4/14/04), 870 So.2d 995, 998. The “mere presence of a defendant |7in the area of the contraband or other evidence seized alone does not prove that he exercised dominion and control over the evidence and therefore had it in his constructive possession.” Johnson, 03-1228 at p. 6, 870 So.2d at 999. The prosecution must prove that the defendant was aware that a firearm was in his presence and that the defendant had the general intent to possess the weapon. Johnson, 03-1228 at p. 5, 870 So.2d at 998. Guilty knowledge may be inferred from the circumstances and proved by direct or circumstantial evidence. Id. Whether the proof is sufficient to establish possession turns on the facts of each case. State v. Harris, 94-0970, pp. 3-4 (La.12/8/94), 647 So.2d 337, 338-339; State v. Bell, 566 So.2d 959, 959-960 (La.1990).

Constructive possession of a firearm occurs when the firearm is subject to the defendant’s dominion and control. See State v. Mose, 412 So.2d 584, 585 (La.1982) (gun located in defendant’s bedroom sufficient for constructive possession); State v. Frank, 549 So.2d 401, 405 (La.App. 3 Cir.1989) (constructive possession found where gun was in plain view on front seat of a car the defendant was driving but did not own); State v. Lewis, 535 So.2d 943, 950 (La.App. 2 Cir.1988) (presence of firearm in defendant’s home; statement by defendant that gun belonged to his wife; and discovery of shoulder holster in the master bedroom indicated defendant’s awareness, dominion and control over the firearm). A defendant’s dominion and control over a weapon constitutes constructive possession even if it is only temporary and even if the control is shared. State v. Bailey, 511 So.2d 1248 (La.App. 2 Cir.1987); State v. Melbert, 546 So.2d 948 (La.App. 3 Cir.1989).

In the present case, Agent Dean testified that he found the weapon sticking out between the mattress and box spring in Mr. Fields’ bedroom. Importantly, Mr. | ^Fields acknowledged that he knew of the presence of the weapon in the residence. The probation officers testified that men’s clothing, including Mr. Fields’ shoes, were found in the bedroom, and Agent Dean testified that it appeared that the bedroom was co-habited by a man and a woman.

Thus, we conclude that under Jackson v. Virginia a rational trier of fact could find beyond a reasonable doubt that Mr. Fields was knowingly in constructive possession of the firearm. We further conclude that a rational trier of fact could find that all the other elements of the offense of possession of firearm by a convicted felon were proven beyond a reasonable doubt.

Ill

We turn now to a consideration of Mr. Fields’ contention that the search of his residence by the probation officers violated his Fourth Amendment protections and to explain why we find that there is no Fourth Amendment violation which would require suppression of the firearm found in his bedroom.

A

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. U.S. Const. Amend. IV; La. Const. art. I, § 5; State v. Francis, 10-1149, p. 4 (La.App. 4 Cir. 2/16/11), 60 So.3d 703, 708. Thus, when evidence is seized without a warrant as required by the federal and state constitutions, the burden is on the prosecution to show that a search is justified by some established exception to the warrant requirement. La.C.Cr.P. art. 703 D; State v. Anderson, 06-1031, p. 2 (La.App. 4 Cir. 1/17/07), 949 So.2d 544, 546.

Here, the trial court determined that the warrantless seizure was justified. We review a trial court’s findings of fact on a motion to suppress under a clearly 19erroneous standard, and its ultimate determination of Fourth Amendment reasonableness de novo. See State v. Pham, 01-2199, p. 4 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218. On mixed questions of law and fact, we review the underlying facts on an abuse of discretion standard, but review conclusions to be drawn from those facts de novo. Id. Where the facts are not in dispute, the reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts. Id.

B

Probationers have a reduced expectation of privacy. See United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). They are subject to reasonable warrantless searches of their persons and residences by their probation officer, even though less than probable cause may be shown. See State v. Malone, 403 So.2d 1234, 1238 (La.1981). This reduced expectation of privacy is based on a probationer’s conviction and agreement to allow a probation officer to investigate his activities in order to confirm that the probationer is in compliance with the provisions of his probation. State v. Thomas, 96-2006, p. 2 (La.App. 4 Cir. 11/06/96), 683 So.2d 885, 886. A probationer is not, however, subject to the unrestrained power of the authorities. Id. And a search of the probationer may not be a subterfuge for a police investigation. Id. But a probation officer may conduct a warrantless search of a probationer’s property when “the officer believes such a search is necessary in the performance of his duties, and must be reasonable in light of the total atmosphere in which it takes place.” Id. In order to determine reasonableness we must consider “(1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it, and (4) the place in which it was conducted.” Id. at pp. 2-3, 683 So.2d at 886, citing Malone, 403 So.2d at 1239.

ImA probationer is, however, nonetheless obliged to “[p]ermit the probation officer to visit him at his home or elsewhere.” La. C.Cr.P. art. 895 A(4). Unquestionably, a probationer, like Mr. Fields, has a reduced expectation of privacy which allows a probation officer to conduct unannounced visits to verify that the probationer is in compliance with the provisions of his probation. See, e.g., Thomas, supra, 96-2006, p. 2, 683 So.2d 885, 886; Malone, supra, 403 So.2d at 1239; State v. Marino, 00-1131, p. 4 (La.App. 4 Cir. 6/27/01), 804 So.2d 47, 52. A “walk-through” inspection of a probationer’s residence to verify his current residence does not constitute a search. Probation officers are authorized to conduct a walk through inspection of a probationer’s home to verify his residence. See State v. Jones, 12-0438, pp. 12-13 (La.App. 4 Cir. 3/13/13), 119 So.3d 9 clarified on rehearing, (La.App. 4 Cir. 4/24/13), 119 So.3d 9. On rehearing, we reaffirmed that the probation officers were justified in entering the defendant’s bedroom to confirm that the defendant actually resided there. See also United States v. LeBlanc, 490 F.3d 361, 370 (5th Cir.2007).

Here, Mr. Fields gave his girlfriend’s address as his residence at his initial intake appointment. Agent Spino and Agent Dean both testified that Agent Spino Indecided to conduct a residence check because the defendant did not appear at his appointment the day before. Mr. Fields acknowledged that he was living with his girlfriend when Agent Spino and Agent Dean arrived at the apartment. The defendant told Agent Spino that the living arrangements were not working out and that he would be moving. At the time of the visit, however, Mr. Fields was still living in the apartment. Agent Dean went into the bedroom as part of the residence check, to determine if he had been actually living there. The agent saw men’s clothing in the bedroom and observed the handle of the handgun protruding from between the mattress and box spring of the bedroom.

At that point, under the plain view doctrine, the agent had the right to seize the weapon. See Kyllo v. United States, 533 U.S. 27, 31-32, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001); Under the plain view doctrine, if officers are lawfully in a position from which they view an object that has an incriminating nature which is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. See Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); State v. Norals, 10-0293, 4 (La.App. 4 Cir. 7/30/10), 44 So.3d 907, 910. Because the officers were conducting a residence check, Agent Dean had the right to enter the bedroom to determine residency. Upon entering the bedroom, he observed the weapon in plain view and had the authority to seize it.

This is very similar to the circumstances in LeBlanc where the probation agent conducted a “walk-through” inspection of the defendant’s residence to verify his current residence, observed a shotgun in plain view sticking out of the defendant’s bed, and then seized the firearm as evidence of a probation violation. See LeBlanc, 490 F.3d at 363-364. There, too, the weapon was described to be in |12“plain sight”. Leblanc, 490 F.3d at 370. See also State v. Bolden, 09-33 (La.App. 5 Cir. 5/12/09), 13 So.3d 1168 (where a gun in plain view was found at a parolee’s residence during a walk-through).

C

Therefore, we conclude that there was no violation of the Fourth Amendment protections. Because Mr. Fields had no reasonable expectation of privacy vis-a-vis a reasonable residence inspection, and during the probation officer’s inspection the firearm was observed in plain view, the prosecution has established that no warrant was required to effect the lawful seizure of the weapon. We thus reject Mr. Fields’ contention on this point.

IV

In this Part we address Mr. Fields’ dual complaints arising out from the hearing on his motion for new trial. His trial counsel filed a motion for new trial. See La. C.Cr.P. art. 851. But then his counsel was absent from the hearing, and the motion was denied. Mr. Fields argues that the hearing was a critical stage of the proceedings and that the trial judge was in error to rule on the motion without his counsel being present. He alternatively argues that his counsel’s absence resulted in ineffective assistance. We explain why we disagree.

We first look to the grounds for Mr. Fields’ new trial motion. See La.C.Cr.P. art. 852 (“A motion for a new trial shall be in writing, shall state the grounds upon which it is based, and shall be tried contradictorily with the district attorney.”) Here, those grounds were: (1) that the verdict was contrary to the law and to the evidence, under La.C.Cr.P. art. 851(1), and (2) that the ends of justice |13would be served by the granting of a new trial, even though the defendant may not be entitled to a new trial as a matter of strict legal right, under La.C.Cr.P. art. 851(5). The arguments raised in the motion for new trial were (1) whether the prosecution produced sufficient evidence, to prove beyond a reasonable doubt, that the defendant had possession of the weapon, and (2) whether the probation agents had the authority to enter Mr. Fields’ residence and conduct a walk-through of the residence, including the bedroom where the firearm was found. Notably, the motion and memorandum did not cite to any new witnesses or evidence to be introduced at the hearing on the motion for new trial, under La.C.Cr.P. arts. 851(3) and 854.

A contradictory hearing on a motion for new trial is not always necessary, especially when there is nothing to suggest that a defendant intends to call any witnesses or submit any evidence in support of his motion, or that he is prevented from doing so. See State v. Collins, 10-1181, p. 11 (La.App. 4 Cir. 3/23/11), 62 So.3d 268, 275, and State v. Kelly, 10-0853, p. 8 (La.App. 4 Cir. 12/12/10), 54 So.3d 1159, 1164.

We do not mean in this matter to excuse the absence of Mr. Fields’ counsel at the hearing. Our review of decisions indicates that the right to counsel attaches at pre-trial, trial and sentencing proceedings; very few cases discuss the right to counsel at post-trial proceedings, such as a motion for new trial. But, in this case, we do not need to reach the issue whether the post-trial hearing was a critical stage of the proceedings against Mr. Fields. While the Sixth Amendment right to counsel attaches after the commencement of adverse judicial criminal proceedings, not all activity in a criminal case is a “critical stage” of the proceedings requiring the assistance of counsel. See State v. Hattaway, 621 So.2d 796, 808-809 (La.1993), overruled on other grounds, State v. Carter, 94-2859 (La.11/27/95), 694 So.2d 367. The Hattaway court adopted the “functional” test set forth in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) to determine whether an encounter is a “critical stage” of the proceedings. Under this test, we are required “to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” Hattaway, 621 So.2d at 809 (quoting Wade, 388 U.S. at 227-28, 87 S.Ct. 1926). A critical stage has been described as a “critical pretrial [confrontation] ... where the results might well settle the accused’s fate and reduce the trial to a mere formality.” United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). See also State v. Carter, p. 5, 664 So.2d at 372-373. Several federal courts of appeals have established that a motion for a new trial is not a critical stage; the federal Fifth Circuit, however, has not foreclosed that the right to counsel might attach on a motion for new trial. See Mayo v. Cockrell, 287 F.3d 336, 339-340 & n. 3 (5th Cir.2002) (having counsel during the motion for new trial phase may or may not be necessary to preserve the defendant’s rights to a fair trial and effective appeal); Graves v. Cockrell, 351 F.3d 143, 155 (5th Cir.2003).

In any event, however, the outcome of the denial of Mr. Fields’ motion for new trial is inconsequential. We ourselves have reviewed the entire evidentiary record for sufficiency of evidence, the first ground of his motion, and concluded, as we explained in Part II, ante, that the evidence was sufficient to sustain his conviction. Thus, he is not entitled to a new trial on that ground and the absence of 114his counsel was not prejudicial to him. Also, we have reviewed the legal and factual issues regarding the denial of the motion to suppress, which is the second ground of his motion, and concluded, as we explained in Part III, ante, that his Fourth Amendment right to be free from unreasonable searches and seizures was not violated by the probation officers. Thus, he is not entitled to a new trial on that ground. Because we have decided the same issues with the same outcomes, the absence of his counsel at the motion hearing resulted in no prejudice to him.

And because there is no prejudice to him, he cannot succeed on his ineffective assistance of counsel claim, which also arises out of his counsel’s absence at the hearing. In order to succeed on an ineffective assistance of counsel claim, a defendant must establish two criteria: (i) that his trial counsel’s performance was deficient and (ii) that the deficiency prejudiced him. See Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed”); State v. Fuller, 454 So.2d 119 (La.1984). Clearly, in the absence of prejudice to him, his counsel’s absence at the new trial hearing cannot have been ineffective.

V

Mr. Fields’ last assignment error relates to the habitual offender proceedings instituted against him. Mr. Fields committed three prior felonies: auto theft in 1998, possession of heroin in 2006, and possession of cocaine and heroin in 2009. At the trial, the prosecution produced evidence of the convictions resulting from | isthe 2006 and 2009 offenses in order to establish an essential element of the offense of convicted felon in possession of a firearm. Because those underlying felonies were used as an element of the firearm conviction, they may not be used in the multiple bill; otherwise, it would constitute prohibited double enhancement. See State v. Davis, 02-0565, p. 14 (La.App. 4 Cir. 12/11/02), 834 So.2d 1170, 1179. Thus, the only prior felony conviction which may be used to enhance the sentencing penalty under La. R.S. 15:529.1 is the one arising from the 1998 auto theft offense.

The record evidence shows that the felony auto theft was committed on August 11, 1998 and that Mr. Fields entered a plea of guilty as charged on October 7, 1998. At the time of his plea, he was sentenced to two years custody, which was suspended on the condition of satisfactory completion of two years of active probation, credit for time served. During his probationary period, Mr. Fields was arrested and incarcerated for about three months before being released again on probation. On March 15, 2000, Mr. Fields completed payment of his financial obligations and the court noted “this matter is closed.” Later, on May 7. 2001, the trial court granted Mr. Fields’ motion to dismiss and set aside the conviction under La.C.Cr.P. art. 893.

Mr. Fields now argues that the prosecution failed to prove that his conviction from 1998 was eligible for use as a predicate conviction under what is known as the ten-year cleansing period. See La. R.S. 15:529.1 C. The termination date for 11fithe ten-year cleansing period extinguishes its use for multiple billing when it comes before the “date of the commission of the current offense,” which was September 16, 2010. Id. The commencement date is counted from “the expiration of the maximum sentence ... of each preceding conviction ... alleged in the multiple offender bill.” Id.

Mr. Fields here argues that the commencement date may have been the date that the case was closed and that the ten-year cleansing period has elapsed. But Mr. Fields did not file a written response to the multiple offender bill of information complaining about the use of any of the predicate convictions, and he did not object at the hearing that the prosecution had failed to prove that the cleansing period had not elapsed. Ordinarily, when the record does not contain a written response by the defendant to the multiple bill or his oral objection, the issue is not preserved for appellate review. See La.C.Cr.P. art. 841; State v. Taylor, 12-0114 (La.App. 4 Cir. 11/28/12), 104 So.3d 679; State v. Phillips, 10-0582 (La.App. 4 Cir. 2/17/11), 61 So.3d 130; State v. Landfair, 10-1693 (La.App. 4 Cir. 7/20/11), 70 So.3d 1061.

But the transcript here reveals that the trial judge independently but erroneously calculated the ten-year cleansing period. Thus, we are satisfied that the district judge before imposing a sentence under the habitual offender law |18intended to insure that Mr. Fields was eligible for such sentencing despite the absence of a formal objection, either written or oral, by his counsel. Under such circumstances, we might deem it appropriate to remand for re-sentencing to afford the defendant an opportunity to clarify his objection and support it with evidence.

Here, however, there is no need or purpose for a remand. The minimum sentence which the sentencing judge could impose even were he to conclude that Mr. Fields is not eligible for sentencing as an habitual offender is ten years without the benefit of probation, parole, or suspension of sentence. See La. R.S. 14:95.1 B. Ten years is also the minimum sentence that could be imposed under La. R.S. 15:529.1 A(l). Because this is the sentence which the trial judge imposed, and Mr. Fields has not specified any prejudice or harm in being designated as an habitual offender, we discern no sound basis for remanding for re-sentencing and affirm the sentence as modified by operation of law. See n.3, ante, at p. 314.

DECREE

We affirm the conviction and sentence of Shelby Fields.

AFFIRMED

      . Mr. Fields’ appellate counsel assigned five errors and Mr. Fields pro se assigned two. Their respective assignments pertaining to denial of the motion to suppress are treated together as are those pertaining to the absence of defense counsel at the hearing on the motion for new trial.

      . We acknowledge that appellant's counsel assigns this error to preserve the matter in the event that there is a change in the law by the United States Supreme Court.

      . As we always do, we have examined the record for errors patent. See La.C.Cr.P. art. 920(2). We have detected none with respect to Mr. Fields' conviction. We have identified two errors patent respecting the sentence and the granting of the appeal, neither of which require corrective action by us. In the present case, Mr. Fields filed a motion for appeal after trial, but before sentencing, and the district court granted the appeal before sentencing. Although a defendant can take an appeal only from a conviction and sentence, we have held that an appeal taken prior to sentencing will not be dismissed "because '[d]ismissing the appeal would simply result in a delay of the appellate process and hinder defendant’s right to appeal.’ " State v. Warren, 538 So.2d 1036, 1037 (La.App. 4th Cir.1989), quoting from State v. Martin, 483 So.2d 1223, 1225 (La.App. 4th Cir.1986). Also, the trial court sentenced Mr. Fields to an illegally lenient sentence after adjudicating him a second felony offender. The trial court sentenced the defendant to serve ten years at hard labor. La. R.S. 14:95.1 provides that the sentence must be imposed without the benefit of parole, probation, or suspension of sentence. In addition, the trial court adjudicated the defendant to be a second offender. La. R.S. 15:529.1G provides that a sentence as a second offender must be imposed without the benefit of probation or suspension of sentence. The trial court, however, failed to include these prohibitions when imposing the sentence. Nonetheless, pursuant to La. R.S. 15:301.1 A, and State v. Williams, 00-1725, pp. 10-11 (La.11/28/01), 800 So.2d 790, 798-799, the sentence is deemed to have been imposed with these restrictions of benefits even in the absence of the district court delineating them. See State v. Phillips, 03-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675. Thus, there is no need for us to correct this part of the sentence.

      . The LeBlanc court reviewed a probation officer's authority to enter a probationer’s residence,
      [ T]he Louisiana Probation and Parole Officer’s Manual authorizes a probation officer to perform a 'residence verification’ to determine that an offender resides at a claimed residence ... ‘interpersonal contact’ is defined as [fjace to face contact with the offender which can occur in the field or in the office ...
      A probationer is subject to state supervision as part of the "special needs” doctrine, including verification of where he lives, and cannot expect to be free from "interpersonal contact" at his residence. Were we to impose a requirement that a probation officer show reasonable suspicion of criminal activity before visiting a probationer at his home, supervision would become effectively impossible ...

        The Louisiana Supreme Court has noted that in supervising a probationer, a probation officer may have to take actions to accomplish a home visit that would intrude upon the liberty of an ordinary person, but not a probationer.”
      490 F. 3d at 367-370.

      . While the minute entry for the hearing indicates that defense counsel was present, the hearing transcript reveals that counsel was not present.

      . Only three federal courts have held, on particular facts, that the motion for new trial phase is a critical stage of the prosecution. See Mayo v. Cockrell, 287 F.3d 336, 339-340 & n. 3 (5th Cir.2002) (emphasis added).

      . Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief filed initially in the district court where a full evidentiary hearing can be held. See, e.g., State v. Lipscomb, 807 So.2d 218 (La.2002). In the interest of judicial economy, however, an appellate court can consider an ineffective assistance claim if the record on appeal contains sufficient evidence to evaluate the merits of the claim.

      . There were special financial conditions imposed in connection with the probationary period.

      . La. RS. 15:529.1C provides:
      The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions alleged in the multiple offender bill and the date of the commission of the Col-lowing offense or offenses. In computing the intervals of time as provided herein, any period of parole, probation, or incarceration by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.

      .Mr. Fields did object to the identification of him by a fingerprint expert as being the same person convicted of the 1998 offense.


author: MOORE, J. LOLLEY, J.,

text:
    Robert S. NICHOLS, et al., Plaintiff-Appellant v. Ravish PATWARDHAN, M.D., Defendant-Appellee.
    No. 48,170-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.

      Susan Elizabeth Hamm, Shreveport, LA, for Appellants, Robert S. Nichols and Judith Nichols.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, Shreveport, LA, by Lawrence Wayne Pettiette, Jr., Joseph Samuel Woodley, Rendí B. Wiggins, for Appellees Ravish Patwardhan and Comprehensive Neurosurgery Network.
    Watson, Blanche, Wilson & Posner, Baton Rouge, LA, by Thomas H. Wartelle, for Appellee Willis-Knighton, Pierremont Health Center.
    Before DREW, MOORE and LOLLEY, JJ.
   MOORE, J.

| Robert S. Nichols appeals a judgment sustaining an exception of prescription and dismissing his medical malpractice suit against Dr. Ravish Patwardhan and Comprehensive Neurosurgery Network LLC. For the reasons expressed, we affirm.

Factual and Procedural Background

The 67-year-old Nichols was suffering from back and lower left leg pain. On referral from his primary care provider, Dr. Hernandez, Nichols first saw Dr. Pat-wardhan in July 2008. On September 19, 2008, Dr. Patwardhan performed a fusion at L2-3 to alleviate the pain, but the symptoms persisted. On October 9, Dr. Pat-wardhan advised Nichols that post-op X-rays looked good, but he nevertheless referred him to pain management with Dr. Brewer. Dr. Brewer gave Nichols morphine.

On December 9, 2008, Nichols returned to Dr. Patwardhan with unabated pain in the back and lower left leg; Dr. Patwar-dhan ordered an MRI and CT scan. Dr. Patwardhan last saw Nichols on January 14, 2009, on which date he referred him to Dr. Brewer for three steroid injections to alleviate the ongoing pain.

Nichols took two shots, on February 3 and 26, 2009. On March 4, 2009, he was scheduled to see Dr. Patwardhan again, but he phoned to cancel that appointment; he stated that he would reschedule, but this never occurred. Nichols went to Dr. Brewer for the third injection on April 30, but told him that the shots were not working; apparently he never took the final shot.

[ 2On May 8, 2009, Nichols returned to his primary car provider, Dr. Hernandez, for an unrelated problem, and told him that he was still having follow-ups with Drs. Patwardhan and Brewer. Dr. Hernandez found that Nichols had colon cancer, and performed a colon resection in December 2009.

According to Nichols, he did not learn that Dr. Patwardhan had apparently performed the fusion at the wrong level until December 6, 2011, when he saw Dr. Anil Nanda, another neurosurgeon.

On January 20, 2012, Nichols filed the instant medical malpractice claim with the Louisiana Patient’s Compensation Fund, naming as defendants Dr. Patwardhan, his company, Comprehensive Neurosurgery Network LLC, and Willis-Knighton Pier-remont, the hospital where the surgery took place.

Dr. Patwardhan and the LLC filed the instant exception of prescription, arguing that the claim was filed over three years after the final time Dr. Patwardhan saw and treated Nichols, January 14, 2009. They also argued that because Nichols never experienced any relief from Dr. Pat-wardhan’s surgery, he must have known from the outset that something was wrong.

Willis-Knighton also filed an exception of prescription, showing that the hospital’s final interaction with Nichols was the date of his discharge, September 12, 2008.

Nichols responded that he continued to receive treatment “under and at the direction of’ Dr. Patwardhan until April 30, 2009, when he went to 13receive the final injection prescribed by Dr. Patwardhan. At the hearing on the exception in June 2012, he argued that “at the minimum,” Dr. Patwardhan’s treatment continued through the February 26, 2009, injection because it was “at his direction.” He argued that all of Dr. Patwardhan’s post-op care was substandard, but he had no reason to suspect malpractice until December 6, 2011, when Dr. Nanda disclosed the surgical error.

At the hearing, Dr. Patwardhan argued that he did not administer the steroid injections, but only recommended them, and cannot be held to a continued doctor-patient relationship when somebody else is actually rendering the care.

The court found that the last date of treatment was January 14, 2009, and did not extend to “any referral that doctor defendant may have made” into February 2009. The court stated that although Dr. Patwardhan “ordered that certain injections take place as a part of a continuation of the treatment[,]” this “should not be attributed to the defendant.” The court sustained both exceptions, dismissing all defendants. Nichols has appealed the judgment only as to Dr. Patwardhan and his LLC.

The Parties’ Positions

Nichols advances five assignments of error which he has condensed into three issues: (1) A doctor’s treatment of a patient does not end on the last date a doctor physically sees a patient; (2) A patient’s reasonable Lsubjective belief as to the existence of a doctor-patient relationship is enough to establish that the patient would not be in a position to file a malpractice suit; and (3) A doctor’s continuous representation that he is working to make the patient better along with the representation that the treatment was performed correctly tolls the running of prescription. He contends that prescriptive statutes must be strictly construed in favor of the obligation sought to be extinguished. In re Noe, 2005-2275 (La.5/22/07), 958 So.2d 617. Prescription is suspended when there is a continuation of a special relationship in the providing of services or continued reliance on that relationship. In re Med. Review Panel of Moses, 2000-2643 (La.5/25/01), 788 So.2d 1173. This is because the special relationship of trust might hinder a patient’s inclination to sue. Taylor v. Giddens, 618 So.2d 834 (La.1993). Prescription does not begin to run until it was reasonable for the patient to recognize that the condition may be related to the treatment; mere knowledge of a problem is not sufficient. Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502. The medical malpractice prescription statute, La. R.S. -9:5628, fixes prescription at one year after the act of negligence, or one year after the discovery of the negligence, with a three-year limitation from the date of the act. Crucially, he contends that the doctrine of contra non valentem applies to both periods.

Nichols argues that on this record, he continued to receive treatment from Dr. Patwardhan through April 30, 2009: “treatment” is not limited to “physical hands-on contact by the doctor with the patient,” but includes when the doctor “directs treatment, orders tests, interprets tests, etc.” He |saIso argues that the record objectively shows that Dr. Patwardhan was his doctor on March 4, 2009, when he (Nichols) phoned to cancel an appointment and say he would reschedule, and on May 8, 2009, when he told his primary care provider, Dr. Hernandez, that he (Nichols) was still under Dr. Patwardhan’s care. Also, Dr. Patwardhan never discharged him. Nichols argues that this constituted “continuous representation” that Dr. Pat-wardhan was treating him, and he reasonably believed this was so. He concludes that the doctor-patient relationship did not end until May 8, 2009, so the malpractice claim filed on January 12, 2012, was timely.

Dr. Patwardhan responds that the facts are not in dispute; critically, he had “no further contact with this patient since” January 14, 2009, and that is the date on which prescription began to run. He argues that contra non valentem will suspend the three-year limit of R.S. 9:5628 only in cases of fraudulent concealment, fraud, ill practices or misrepresentation, In re Med. Review Panel of Moses, supra, and none of these things are alleged. He cites a recent opinion holding that the three-year limit “cannot be interrupted or suspended other than by the medical review panel process,” Shaw v. Murtagh, 2009-2239 (La.App. 1 Cir. 1/13/11), 2011 WL 199118, writ denied, 2011-0320 (La.4/1/11), 60 So.3d 1255. He contends that the events after January 14, 2009, do not fit the “continuous representation rule” as stated in Carter v. Haygood, 2004-0646 (La.1/19/05), 892 So.2d 1261, in that the treatment after that date was merely perfunctory and not such as would have prevented Nichols from suing. He stresses that after January 14, 2009, he did nothing that would “hinder the patient’s inclination to sue,” Taylor v. Giddens, supra. He concludes that the claim was filed over three years after the last date of treatment rendered to Nichols and is therefore prescribed.

Discussion

The prescription of medical malpractice claims is regulated by La. R.S. 9:5628, which provides in pertinent part:

§ 5628. Actions for medical malpractice
A. No action for damages for injury or death against any physician * * *, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

In Borel v. Young, 2007-0419 (La.7/1/08), 989 So.2d 42 (on rehearing), the supreme court held that both the one-year and three-year periods set forth in the statute are prescriptive. Id. at 2, 989 So.2d at 54. However, the court further held that R.S. 9:5628 “is a prescription statute with a qualification, that is, the contra non valentem type exception to prescription embodied in the discovery rule is expressly made inapplicable after three years from the act, omission, or neglect[.]” Id. at 18, 989 So.2d at 63; Hebert v. Doctors Memorial Hosp., 486 So.2d 717 (La.1986).

In cases not regulated by a special statute, courts have utilized the concept of contra non valentem to suspend or interrupt the running of 17prescription against plaintiffs in four situations:

(1) Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action;
(2) Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and
(4) Where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant (called “the discovery rule”).

Wells v. Zadeck, 2011-1232, pp. 8-9 (La.3/30/12), 89 So.3d 1145, 1150, and citations therein.

By contrast, under R.S. 9:5628, the court in Borel held that the discovery rule does not apply to suspend the three-year limitation on actions. Borel v. Young, supra at 18, 989 So.2d at 63; Hebert v. Doctors Memorial Hosp., supra.

In other cases, the courts have suggested that if the defendant’s conduct rises to fraudulent concealment, misrepresentations or ill practices, then the courts would consider lifting the three-year limit. In re Moses, supra at 23, 788 So.2d at 1187; Braud v. Cenac, 2003-1696 (La.App. 3 Cir. 7/14/04), p. 3, 879 So.2d 896, 900-901, writ denied, 2004-2101 (La.11/15/04), 887 So.2d 484; William E. Crawford, 12 La. Civ. L. Treatise, Tort Law 2 ed. (West 2009), § 15:9. We have closely examined this record and are constrained to |sSnd no allegation that Dr. Patwardhan was guilty of concealment, fraud or ill practices, such as would activate the dictum of In re Moses, supra. The record establishes only that for various reasons Nichols did not discover the exact nature of Dr. Patwar-dhan’s potential malpractice until December 2011, from Dr. Nanda. In the absence of proof of concealment, fraud or ill practices, we must follow Borel v. Young, supra, and hold that the discovery rule of contra non valentem simply does not apply to suspend prescription. Nichols’s third issue lacks merit.

With this conclusion, it is technically unnecessary to address Nichols’s first two issues, which essentially urge that prescription was suspended as long as he subjectively believed that a was in a doctor-patient relationship with Dr. Patwar-dhan, even though he was not actually receiving hands-on treatment. As already noted, unless the doctor’s acts amounted to concealment, fraud or ill practices, they do not suspend the three-year period. In re Moses, supra; Braud v. Cenac, supra.

Nichols correctly shows that the continuous representation rule will prevent the running of the one-year prescriptive period of R.S. 9:5628. In re Moses, supra. The supreme court has also held, however, that the continuous representation rule requires (1) a continuing treatment which is more than perfunctory, during which (2) the physician engaged in conduct which served to prevent the patient from availing himself of his cause of action, such as attempting to rectify the alleged act of malpractice. Carter v. Haygood, supra at 16, 892 So.2d at 1271; Shaw v. Murtagh, supra.

UThis record shows that after an office visit on January 14, 2009, Dr. Patwardhan never saw or even spoke to Nichols again. Whatever treatment he rendered to Nichols after that date cannot possibly be considered “more than perfunctory,” and does not show that he was trying to rectify the alleged malpractice. The district court was not plainly wrong to find that the final date on which Dr. Patwardhan rendered patient care to Nichols was January 14, 2009; that the instant claim, filed on January 20, 2012, was untimely under R.S. 9:5628; and to sustain the exception of prescription. Nichols’s second and third issues lack merit.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the plaintiff, Robert S. Nichols.

AFFIRMED.

LOLLEY, J., dissents with written reasons.

LOLLEY, J.,

dissenting.

hi dissent from the ruling of the majority in this matter concerning prescription and the operative dates involved. I am of the opinion that the medical malpractice claim against defendant Dr. Ravish Pat-wardhan was timely filed.

The majority has ruled that the operative date for the running of prescription is January 14, 2009. This was the date of plaintiffs last personal professional appointment with the doctor who actually performed the surgery. On that date, after examination, the defendant referred Mr. Nichols to Dr. Brewer who administered a series of steroid injections to ease the pain Mr. Nichols was experiencing. These injections, by the referral of defendant continued until the series of shots were completed.

At all times outlined in these proceedings plaintiff was continuing to follow the recommendations, referrals and treatment routines and dates by other doctors made by, and recommended by the doctor who performed the surgery, obviously still trusting his judgment in the continuing quest for relief. However, this did not happen.

During this period of non-relief from the spinal surgery performed by defendant doctor, plaintiff was unfortunately diagnosed with colon cancer. Surgery was performed upon him to hopefully correct this unfortunate situation.

Still realizing no relief from the prescribed shots, and having to have colon cancer surgery in the interim, Mr. Nichols consulted with Dr. Nanda. The date of this consultation was December 6, 2011. After examination Dr. |2Nanda advised him that the source of the continuing pain was that the doctor had performed the surgery at the wrong level of his spine and the only way to remedy the problem was to perform additional surgery to correct the problem. The date of this examination was December 6, 2011. The surgery was performed and apparently corrected the problem and pain being suffered by plaintiff.

I am of the opinion that the prescriptive period was tolled during the period plaintiff was following the advice and orders of the doctor who performed the surgery. It was entirely reasonable for him to do so. For better, but unfortunately sometimes for worse, we all tend to continue to rely upon the advice of our doctors even after things have gone terribly wrong. Based upon the presented oral arguments and review of this record I am of the opinion that the operative date for the running of the prescriptive period was December 6, 2011 when, after following Dr. Patwar-dhan’s advice, referrals and recommendations, he was first advised by Dr. Nanda that the surgery had been performed at the wrong level and the treatment regimen he was following, at the recommendation and advice of the original doctor was not helping in any manner whatsoever. The problem was corrected by receiving competent and correct medical treatment. I am of the opinion that the correct operative date for the prescriptive date(s) to begin running is December 6, 2011, and not the date targeted by the majority. Accordingly, I dissent.

      . The assignments are: (1) The court erred in finding that the last date of treatment was January 14, 2009; (2) The court erred in finding that the doctor-patient relationship ended on January 14, 2009; (3) The court erred in finding that the case had prescribed because it was filed more than three years after the last date of treatment; (4) The court erred in finding that the case had prescribed because it was filed more than three years after the end of the doctor-patient relationship; and (5) The court erred in not applying the date of discovery of the malpractice as the date that triggers the beginning of the prescriptive period.

      . In Nestor v. Louisiana State Univ. Health Sciences Center, 40,378 (La.App. 2 Cir. 12/30/05), 917 So.2d 1273, writ denied, 2006-0221 (La.4/24/06), 926 So.2d 551, this court found that the three-year prescriptive period was suspended or interrupted merely by the plaintiff’s lack of knowledge that the neurosurgeon performed surgery at the wrong level of the back. In light of the subsequent holding of Borel v. Young, supra, we would consider our broad statement in Nestor overruled.