author: McClendon, j.

text:
    Kenneth W. TANANA v. Bettie Ramsey TANANA.
    No. 2012 CA 1013.
    Court of Appeal of Louisiana, First Circuit.
    May 31, 2013.

      Zara Zeringue, Covington, LA, for Plaintiff/Appellee, Kenneth W. Tanana.
    Clint L. Pierson, Jr., Candice L. Jenkins, Covington, LA, for Defendant/Appellant, Bettie Ramsey.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   McClendon, j.

[2An ex-spouse appeals the judgment of the trial court that ordered the public sale of the parties’ former matrimonial domicile. Because the trial court failed to follow the mandatory procedure set forth by law for partitioning community property, we vacate the judgment and remand for further proceedings in accordance with law.

FACTUAL AND PROCEDURAL HISTORY

On December 6, 2005, Kenneth Tanana filed for divorce from Bettie Ramsey Tana-na in the 22nd Judicial District Court in St. Tammany Parish. A judgment of divorce was granted on September 14, 2006, in Docket No. 2005-15121, Division A. The parties entered into several agreements and consent judgments regarding child support, child custody, and partition of the community property, including a consent judgment signed by the trial court on January 16, 2007 (the Consent Judgment). Made part of the Consent Judgment was a previous agreement, dated November 20, 2005 (the 2005 Agreement), and entitled “Voluntary Settlement/Stipulation of Community Property, Liabilities, Related Marital and Support Issues with Hold Harmless Agreement.” The Consent Judgment provided that the 2005 Agreement was “made the judgment of this court and the parties are held by its terms and conditions.” In the 2005 agreement, the parties agreed, inter alia, to voluntarily partition their community property in accordance with the agreement. The parties also agreed to place their former matrimonial domicile, located in Bush, Louisiana, “on the open market to be liquidated as soon as possible, and listed for a sales price agreeable to both parties.” The home remained on and off the market for five years. The parties only received one offer on the house during that period, which was rejected outright by Mr. Tanana.

Also during this time, on January 1, 2009, a Family Court Division was ^established in the 22nd Judicial District Court. The Tananas’ divorce proceeding was then assigned to Division L of Family-Court. In June 2009, Mr. Tanana filed a Petition to Partition in the divorce proceeding, pursuant to LSA-R.S. 9:2801.

Thereafter, on July 28, 2010, Mr. Tana-na filed a second Petition for Partition, as a new proceeding, in Docket No. 2010-14826, allotted to Division I, which is the matter currently before us. Mr. Tanana asserted in said petition that he and Ms. Tanana were “unable to agree upon the terms and manner of a nonjudicial partition” of the former family home and that, pursuant to the Consent Judgment, he and Ms. Tanana were co-owners of the property in question. Subsequent to the filing of the new suit, Mr. Tanana filed an ex parte motion to dismiss the petition for partition in the family court division, which was granted on October 4, 2010. In his motion, Mr. Tanana asserted:

That the parties had previously entered into a Voluntary Community Settlement/Stipulation of Community Property, which was made executory by Consent Judgment dated January 16, 2007. This Judgment was again recognized as a partition of the assets and debts of the parties, in a Hearing Officer’s Conference held on June 15, 2010. Therefore, the R.S. 9:2801 partition filings by plaintiff, are redundant, and unnecessary.

In response to the new suit, Ms. Tanana filed several exceptions, including the peremptory exceptions raising the objections of res judicata^ no right of paction, and no cause of action. Ms. Tanana argued that because the house was former community property, the sole remedy for partition was pursuant to LSA-R.S 9:2801, and Mr. Ta-nana was not entitled to a partition by licitation. Following a hearing on January 18, 2011, the trial court concluded that LSA-R.S. 9:2801 did not apply, “because the parties, by their consent judgment, exempted themselves from that statute.” A judgment overruling the exceptions was signed by the trial court on February 7, 2011.

A trial on the merits was held on June 22, 2011, and the matter was held open for thirty days for post-trial memoranda and to allow Ms. Tanana to submit a market analysis of the property. On October 28, 2011, the trial court issued its judgment and written reasons for judgment. In its written reasons, the court again stated that the parties were co-owners in indivi-sión of the property in question and, as such, the court could not use LSA-R.S. 9:2801A(4)(e) to order a private sale. The trial court further held because the Consent Judgment provided for no time by which the property must be sold, it was unenforceable as to the family home. Therefore, because there was no valid agreement to sell the property, the trial court found that the only course available to it was to order a sheriffs sale. The trial court determined that the fair market value for the home was $750,000.00. “In order to protect the interest of both parties as much as possible,” the trial court ordered that the property be listed for public lósale at the next sheriffs auction with a minimum bid of $600,000.00, which reflected a 20% reduction in the market value of the home.

Ms. Tanana appealed the judgment, initially as a suspensive appeal. However, Ms. Tanana failed to timely post bond, and the appeal was converted to a devolutive appeal. On February 1/2012, the property was sold at the sheriffs sale, at which time Mr. Tanana bought the property for $611,000.00.

In this appeal, Ms. Tanana raises three assignments of error:

1.The trial court erred in denying Ms. Tanana’s various exceptions to these instant proceedings, as this case should have proceeded under its previous docket number, in accordance with the local court rules for the 22nd Judicial District Court, where a Consent Judgment had already been entered partitioning the property;
2. The trial court erred in proceeding without properly partitioning the property at issue and failing to proceed under LSA-R.S. 9:2801;
3. The trial court erred in ordering partition by licitation forcing the family home to be sold at sheriffs sale below market value, prejudicing Ms. Tanana as Mr. Tanana bought the home at sheriffs sale.

LAW AND DISCUSSION

It is well-settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735. However, if a legal error interdicts the fact-finding process, the manifest error standard is no longer applicable. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 747. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Chambers v. Village of Moreauville, 11-898 (La.1/24/12), 85 So.3d 593, 597. Legal errors are prejudicial when they materially affect the outcome and deprive a party of | ^substantial rights. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Chambers, 85 So.3d at 597.

In her appeal, Ms. Tanana maintains that LSA-R.S. 9:2801 is the sole provision to govern a partition of community property when the spouses cannot agree on a partition of all or part of their assets. However, Mr. Tanana contends that the Consent Judgment represented a judicial partition of all community property between the parties, including the subject property, and, therefore, the provisions of LSA-R.S. 9:2801 are inapplicable in this matter. Thus, we must first determine whether LSA-R.S. 9:2801 is applicable to the facts before us.

The starting point for the interpretation of any statute is the language of the statute itself. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d 294, 302; Cat’s Meow, Inc. v. City of New Orleans, Through Dept. of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186, 1198. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the statute is applied as written, and no further interpretation may be made in search of legislative intent. See LSA-C.C. art. 9; LSA-R.S. 1:4. Further, because this issue involves statutory interpretation, which is a question of law, our review is de novo. See Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 06-0582 (La.11/29/06), 943 So.2d 1037, 1045.

Louisiana Revised Statutes 9:2801A provides, in pertinent part:

A. When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding,_ (Emphasis added.)

17Thus, the provisions of LSA-R.S. 9:2801 set forth the procedure by which community property is partitioned when the spouses are unable to agree on a partition of community property or on the settlement of the claims between them. LSA-R.S. 9:2801; see also Bible v. Bible, 03-2793 (La.App. 1 Cir. 9/17/04), 895 So.2d 547, 550, writ denied, 05-1081 (La.6/17/05), 904 So.2d 700. The provisions of LSA-R.S. 9:2801 are mandatory. Bible, 895 So.2d at 550.

It is undisputed that the parties have been unable to agree on a settlement of the claims arising from the co-ownership of the family home. More specifically, the parties cannot agree on how to proceed following the home’s failure to sell after being on and off the market for five years. In this regard, Ms. Tanana wanted to continue to try to sell the home by private sale, whereas Mr. Tanana sought a partition by licitation. Also, Mr. Tanana admitted in his petition herein that he and Ms. Tanana were unable to agree upon the terms and manner of a non-judicial partition of the family home. Clearly, this dispute involves a disagreement between the spouses arising from the co-ownership of former community property following the termination of their matrimonial regime. Therefore, in accordance with the clear wording of the statute, we conclude that the trial court legally erred in failing to apply the provisions of LSA-R.S. 9:2801 regarding the disposition of the former home.

Because the trial court did not apply LSA-R.S. 9:2801, we find it necessary to vacate the judgment of the trial court and to remand the matter for completion of the partition proceedings in accordance with LSA-R.S. 9:2801 and |sfor transfer to the appropriate Family Court division of the 22nd Judicial District Court, in accordance with Rule 23A of the local rules.

CONCLUSION

For the above and foregoing reasons, the October 28, 2011 judgment of the trial court is hereby vacated, and we remand this matter for further proceedings consistent with the views expressed herein. All costs of this appeal are assessed against Mr. Tanana.

REVERSED AND REMANDED.

HIGGINBOTHAM, J., concurs.

      .Although the parties had been separate in property by virtue of a prenuptial agreement, they rescinded and cancelled all prenuptial agreements in accordance with the 2005 Agreement.

      . The parties' former domicile is a large 5,964-square-foot home situated on ten acres in a rural area.

      . Rule 23A of the Local Rules of Court, 22nd Judicial District Court, provides:

        There shall be a Family Court Docket in the 22nd Judicial District and that docket shall be allotted to Divisions K and L. Matters heard on the Family Docket shall include:
      1. Annulment of marriage, divorce and separation and related proceedings and incidental matters, including those listed in La. C.C. Art. 105.
      2. Property partitions and related proceedings and incidental matters that are associated with the dissolution of marriages.
      3. Child-related issues including, but not limited to, issues related to the paternity of children; adoption; filiation; custody, visitation, and support in non-marital cases; name changes for minor children and emancipations.
      4. Domestic violence protective orders.
      5. Separation of community property regimes.
      6. Enforcement of any orders issued in connection with the matters listed in sections (l)-(5) above, including proceedings for contempt of court.
      7.Such other matters as may be designated by en banc order of the 22nd judicial District Court Judges.

      . Ms. Tanana had also filed exceptions raising the objections of lis pendens and lack of subject matter jurisdiction on September 16, , 2010. However, she voluntarily dismissed these declinatory exceptions in November 2010, after Mr. Tanana’s original petition to partition, pending in family court, was dismissed.

      . Louisiana Revised Statutes 9:2801A provides, in pertinent part:
      A. When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding. ...

      . The parties also stipulated at trial that they were co-owners in indivisión. Further, it is undisputed that the home was former community property.

      . Additionally, LSA-C.C. art. 2369.8 provides that if spouses are unable to agree on the partition of former community property, "either spouse may demand judicial partition which shall be conducted in accordance with R.S. 9:2801.” (Emphasis added.)

      . The evidence presented at trial indicated that there was a downward trend of the real estate market at the time, and the house was listed at a high price, was in a rural area, and was unfinished.

      . We also note that on September 11, 2012, after this matter was appealed, Rule 27.2 of the Local Rules of Court, 22nd Judicial District, was adopted, effective October 1, 2012. Said rule provides, in pertinent part:
      A. Community Property Cases
      1. Commencement of Proceedings
      All partition actions shall be commenced by petition, supplemental petition or reconven-tional demand and shall include a description of the claims the party seeks to have decided by the court, and shall comply in all other respects with La. R.S 9:2801. All partitions shall be filed in the same suit number of the divorce and/or separation of property action between the same parties. This does not preclude a motion to homolo-gate an extra-judicial partition.


source: Caselaw Access Project

author:
JOY COSSICH LOBRANO, Judge.
      McKAY, C.J.,

license: Public Domain

text:
    Jeffrey WINN v. DEPARTMENT OF POLICE.
    No. 2013-CA-0199.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 21, 2014.
    Rehearing Denied March 12, 2014.

      Erie J. Hessler, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Elizabeth Robins, Assistant City Attorney, Shawn Lindsay, Assistant City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| Jeffrey Winn (‘Winn”), a police captain with permanent status with the New Orleans Police Department (“NOPD”), timely appealed the decision of the New Orleans Civil Service Commission (“CSC”), upholding his termination and suspension by NOPD Superintendent Roñal Serpas (“Supt. Serpas”), the appointing authority. For the reasons that follow, we affirm.

In the aftermath of Hurricane Katrina, the NOPD Special Weapons and Tactical Unit (swat team) was using the Paul Ha-bans Elementary School in Algiers as its base of operations and living quarters. Winn was both the commanding officer of the swat team and the ranking officer posted at Habans Elementary School.

On the morning of September 2, 2005, an automobile carrying a dead body was brought into the school’s enclosed parking lot. The body was later determined to be that of Henry Glover. After determining that Glover was dead, Winn instructed his subordinates to move the automobile and body to the river side of the levee located behind the NOPD’s Fourth District Police Station because the ^Coroner’s Office and morgue were not in operation at the time. Officer Greg McRae (“McRae”) drove the vehicle to the levee and then on his own initiative proceeded to set the vehicle on fire. At the time, Winn did not know that Glover had been shot by a police officer, nor was he aware that the vehicle and body had been burned.

In November of 2005, NOPD Captain Tami Brisset (“Brisset”) was stationed at the Royal Sonesta Hotel in the French Quarter to handle administrative duties. While stationed there, she received a complaint from a citizen indicating there was a burned body in a burned vehicle on the river side of the levee located behind the Fourth District Police Station. Brisset contacted Captain Donald Curóle (“Cu-role”), the commander of criminal investigations with the NOPD’s Public Integrity Bureau (“PIB”) because the PIB was operational and no other investigative structure was in place at the time. Shortly thereafter, Brisset spoke to Winn regarding the complaint because she knew he was working in the Fourth District. Winn deduced that the burned vehicle and burned body were the same vehicle and body he had previously ordered taken to that location. Winn told Brisset that he would contact Curóle and tell him what he knew regarding the complaint. Thereafter, Winn contacted Curóle and told him what he knew about the incident.

In December of 2008, an article appeared in the press concerning police misconduct in the death of Glover. Approximately the same time, the federal government through the FBI, U.S. Attorney’s Office and Department of Justice | ¡¡Civil Rights Division began looking into the circumstances of Glover’s death. After learning of the federal investigation, Winn feared he might be subject to prosecution in the matter despite the fact that he had no involvement in the death or burning of Glover’s body. Therefore, Winn retained attorney Eric Hessler (“Hessler”) to represent him regarding the matter.

In May of 2009, Winn had a conversation with Lt. Dwayne Scheuermann (“Scheuermann”), another NOPD officer who was present at Habans Elementary School at the time of the Glover incident. During this conversation, Scheuermann indicated that he thought Winn knew that McRae had burned Glover’s body. Thereafter, Winn met with Hessler to seek legal advice. Hessler advised his client to invoke his Fifth Amendment privilege against self-incrimination and not to report the conversation. Winn followed the advice of his attorney.

In December of 2010, Winn was subpoenaed to testify as a witness in the federal prosecution of certain NOPD officers involved in the death of Glover and the events immediately thereafter. Following his testimony in this matter, PIB investigator Capt. John Thomas compelled a statement from Winn. On May 25, 2011, following a disciplinary hearing, the NOPD terminated Winn for violation of internal rules regarding neglect of duty (two counts) . Winn was also suspended pfor ten (10) days for violating the internal rules regarding professionalism. Winn appealed his termination and suspension to the CSC.

Following a hearing before the CSC hearing examiner, the hearing examiner recommended that Winn’s appeal be granted as to all charges. However, the CSC disagreed. On November 6, 2012, the CSC rendered a decision holding that the appointing authority had legal cause to terminate Winn for neglect of duty because he failed to timely report the misconduct of a subordinate officer (McRae) whom he knew had burned Glover’s body. The CSC also concluded the ten days suspension was warranted for Winn’s violation of the internal rule regarding professionalism given his neglect of duty. It is from this judgment that Winn appeals to this Court.

On appeal, Winn argues that CSC erred in determining that he committed neglect of duty by not timely reporting misconduct by a subordinate officer. Winn contends in light of the then ongoing federal investigation, he followed the advice of his attorney who had advised him to exercise his Fifth Amendment right against self-incrimination and not report McRae’s misconduct based on the United States Supreme Court decisions in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) and Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968). Given the unique circumstances of his case, Winn contends the CSC’s decision to uphold his termination was arbitrary, capricious, and an abuse of its discretion.

The CSC has authority to “hear and decide” disciplinary cases, which includes the authority to modify (reduce) as well as to reverse or affirm a penalty. La. Const. Art. X, § 12; Pope v. New Orleans Police Dept., 2004-1888, p. 5 (La.App. 4 Cir. 4/20/05), 903 So.2d 1, 4. The appointing authority is charged with the operation of its department, and it is within its discretion to discipline an employee for sufficient cause. Id. at 6, 903 So.2d at 4. “Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged.” Id. at 6, 903 So.2d at 5. The CSC is not charged with such discipline. “[T]he authority to reduce a penalty can only be exercised if there is insufficient cause for imposing the greater penalty.” Id. at 5-6, 903 So.2d at 4.

“The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority.” Cure v. Dept. of Police, 2007-0166, p.2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 2006-0459, p.10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. “The protection of civil service employees is only against firing (or other discipline) without cause.” Cornelius v. Dept. of Police, 2007-1257, 2007-1258, p.7 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724, citing Fihlman v. New Orleans Police Dept., 2000-2360, p. 5 (La.App. 4 Cir. 10/31/01), 797 So.2d 783, 787.

The decision of the CSC “is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review.” Cure, 2007-0166, p. 2, 964 So.2d at 1094, citing La. Const. Art. X, § 12. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this Court should not modify the CSC order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. at 2, 964 So.2d at 1094-95. A decision of the CSC is “arbitrary and capricious” if there is no rational basis for the action taken by the CSC. Id. at 2, 964 So.2d at 1095.

The issue in this appeal is whether the appointing authority had legal cause to discipline Winn for neglect of duty and unprofessional conduct.

The record in this case indicates that Winn knew as early as November 2005 that the vehicle containing Glover’s body was burned and the incident was reported to the PIB. Winn testified at the CSC hearing that Brisset called him in November 2005, informing him that she received a citizen complaint about a body burned inside a burned vehicle behind the Fourth District Police Station. Brisset further advised Winn that she called PIB to report the complaint. Winn responded that he would also notify PIB. Winn admitted that during his conversation with |7Brisset he immediately made the connection between the burned vehicle and body behind the station and the vehicle and body he had ordered relocated in September.

The record further disclosed that in May of 2009, Scheuermann told Winn that McRae burned the vehicle and the body that Winn had ordered relocated to the river side of the levee behind the Fourth District Police Station. Scheuermann also indicated he thought Winn knew McRae had burned Glover’s body. Winn testified that Scheuermann’s version of the events concerned him because it suggested he was part of a cover up. Winn then met with Hessler who advised him to invoke his Fifth Amendment privilege against self-incrimination and not report the conversation. Winn followed the advice and withheld the information from his superiors and the PIB.

Supt. Serpas testified that Winn, a captain, held a supervisory position and was held to a higher standard than a lower rank officer. He explained that the NOPD internal rules impose a continuing duty on a supervisor to report to his superiors and the PIB any misconduct by officers under his command. According to Supt. Serpas, Winn’s failure to report McRae’s misconduct when he learned of it was a violation of Rule 4, Neglect of Duty, and impaired the efficient operation of the NOPD by denying it an opportunity to investigate a possible crime involving one or more police officers. He also explained that Winn’s violation of Rule 3 on Professionalism was predicated on his neglect of duty violation.

The Rules of the Civil Service Commission for the City of New Orleans provide that when a classified employee has committed an act to the prejudice of |8the service or otherwise has been subjected to corrective action, the appointing authority shall take action as warranted by the circumstances to maintain the standards of effective service. See Rule IX, § 1.1. This action may include removal from the classified service, see Rule IX, § 1.1(a), and suspension without pay not exceeding one hundred twenty (120) calendar days, see Rule IX, § 1.1(e).

Given Winn’s admission that he knowingly withheld the information regarding McRae’s misconduct from both his superiors and the PIB, and the testimony of Supt. Serpas that Winn violated NOPD internal rules by neglecting his duties, to the detriment of the department, we find the appointing authority had cause to discipline Winn. The imposed termination and suspension are based on the evidence and commensurate with the dereliction. Thus, we do not find the CSC was arbitrary and capricious or abused its discretion by denying Winn’s appeal and upholding his termination and suspension.

Furthermore, we find Winn’s Fifth Amendment privilege against self-incrimination did not excuse him of his ongoing duty to report the misconduct of other police officers. The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himselfi.]” See U.S. Const, amend. V. At the point in May 2009, when Scheuermann told Winn that he thought Winn knew McRae had burned the vehicle containing Glover’s body, Winn had not been not compelled in any criminal case to be a witness against himself or to report misconduct of his own. Rather, Winn was obligated to report |9in a timely manner any misconduct of other NOPD officers, including those under his command.

Lastly, we find the Garrity, supra, and Gardner, supra, cases are distinguishable from the present matter. In Garrity, a police officer during an Attorney General investigation was told that any statement he made might be used against him in a criminal proceeding and that he had the privilege to refuse to answer, but that such refusal would subject him to forfeiture of office. He answered, and his answers were used over objection in a subsequent prosecution. The Court excluded the evidence, holding that a state cannot use the threat of discharge to secure incriminating statements from an employee, even a policeman. In that case, Justice Douglas stated that “policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.” 385 U.S. at 500, 87 S.Ct. at 620.

In Gardner, a policeman was discharged because he refused in a grand jury investigation to waive immunity from prosecution based on his answers, after being told that he would be discharged if he did not sign the waiver. Observing that the officer was presented with a choice between surrendering his constitutional rights or his job, the Court held that a state cannot discharge an employee for refusing to waive a constitutionally guaranteed right. The Court noted, however, that a policeman owes his entire loyalty to the state and that the privilege would not bar his dismissal for refusal to answer questions relating specifically, directly and narrowly to his official duties, if he were not required to waive immunity with | inrespect to use of the answers or the fruits thereof in a subsequent criminal prosecution. 392 U.S. at 277-78, 88 S.Ct. at 1916.

Here, Winn was not the subject of a criminal investigation or a part of a criminal prosecution when he failed to report the information he had in May 2009 about the McRae’s misconduct. Additionally, there was no demand or threat made of Winn to waive the protections afforded him under Garrity, Gardner, and La. R.S. 40:2531(B)(5). Thus, unlike in Garrity and Gardner, there was no risk of self-incrimination in this case.

Accordingly, for the reasons set forth herein, we affirm the decision of the CSC to deny Winn’s appeal and uphold his termination and suspension by the appointing authority.

AFFIRMED.

McKAY, C.J., Dissents With Reasons.

McKAY, C.J.,

Dissents With Reasons.

|-i The appointing authority has the burden of proving, by a preponderance of the evidence, that the complained of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Cure v. Dept. of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dept. of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767. The burden of proof on appeal to the Civil Service Commission is on the appointing authority. Cure, 07-0166, p. 2, 964 So.2d at 1094. The decision of the Civil Service Commission is subject to review on any question of law or fact upon appeal to this Court, and this Court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const, art. X, § 12(B); Cure, 07-0166, p. 2, 964 So.2d at 1094. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this Court should not modify the Civil Service Commission determination unless it is arbitrary, capricious, or | ¡.characterized by an abuse of discretion. Id. A decision by the Civil Service Commission is “arbitrary and capricious” if there is no rational basis for the action taken by the Civil Service Commission. Id. Although the Commission’s factual findings may not be modified absent manifest error, the review of procedural decisions and questions of law falls within this Court’s traditional plenary function. As such, we are not limited to abuse of discretion or arbitrary and capricious standards of review in these instances. Perkins v. Sewerage and Water Bd., 95-1031 (La.App. 4 Cir. 2/29/96), 669 So.2d 726, 727.

In the instant case, Capt. Brisset testified that she received a citizen complaint about a burned car and body behind the levee. She further testified that it was a general complaint without any indication from the complainant that the incident involved police misconduct. She contacted Capt. Curóle because she knew that the PIB was operational and there was no other investigative structure in place to investigate the matter. She further testified that she told the appellant she had contacted Capt. Curóle regarding the complaint because the appellant was working in the area where the incident occurred. Capt. Brisset testified that the appellant then volunteered to contact Capt. Curóle with information regarding the incident. The appellant testified that he relayed the information he received from Capt. Brisset to Capt. Curóle and also informed Capt. Curóle that he had previously ordered the body moved to the other side of the levee. Capt. Curóle did not testify; the appointing authority offered Capt. Curole’s statement, wherein he acknowledged that the appellant contacted him and informed him of a complaint of |sa dead body behind the levee and that the appellant also related to him what had occurred at the Habans School. Capt. Curole’s statement further indicated that he did not recall being informed that the body had been burned, nor did he recall speaking to Capt. Brisset.

The appellant testified that Capt. Curóle had already been advised of the body behind the levee by Capt. Brisset. This testimony was supported by the testimony of Capt. Brisset. When the appellant contacted Capt. Curóle to provide additional information regarding how the body came to be located on the other side of the levee, he did not know that the body had been burned by Officer McRae and he believed that all relevant facts (including that the body had been burned) had already been conveyed to Capt. Curóle by Capt. Brisset. He only became aware of those facts some three and a half years later.

Based on its investigation, the appointing authority determined that the appellant neglected his duty by failing to report police misconduct in timely fashion and he was terminated. When the appellant appealed his termination to the Civil Service Commission, it was incumbent on the Commission to determine whether his actions constituted violations of the appointing authority’s internal rules and, if so, whether the appellant provided sufficient explanation to justify, excuse, or mitigate his conduct. From my review of the record, it is not clear that the Commission made such a determination.

In Garrity v. New Jersey, 385 U.S. 498, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), a police officer during an Attorney General investigation was told that any ^statement he made might be used against him in a criminal proceeding and that he had the privilege to refuse to answer, but that such refusal would subject him to forfeiture of office. He answered, and his answers were used over objection in a subsequent prosecution. The Court excluded the evidence, holding that a state cannot use the threat of discharge to secure incriminating statements from an employee, even a policeman. In that case, Justice Douglas states that “policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.” Id.

In Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), a policeman was discharged because he refused in a grand jury investigation to waive immunity from prosecution based on his answers, after being told that he would .be discharged if he did not sign the waiver. Observing that the officer was presented with a choice between surrendering his constitutional rights or his job, the Court held that a state cannot discharge an employee for refusing to waive a constitutionally guaranteed right. The Court noted, however, that a policeman owes his entire loyalty to the state and that the privilege would not bar his dismissal for refusal to answer questions relating specifically, directly and narrowly to his official duties, if he were not required to waive immunity with respect to use of the answers or the fruits thereof in a subsequent criminal prosecution.

In the instant case, the appellant contacted his attorney, Mr. Hessler, after Lt. Scheuermann told him that Officer McRae had burned Mr. Glover’s body; Lt. | r,Scheuermann also told the appellant that he thought that the appellant was aware of this fact. Mr. Hessler advised his client to remain silent unless compelled to give an administrative statement or until immunity could be obtained. From May of 2009 until the day of the appellant’s testimony in federal court in December of 2010, no compelled statements were requested by the NOPD. It was only after the appellant’s testimony in the Warren case that the NOPD began an administrative investigation and compelled a statement from the appellant. Thereafter, the NOPD alleged the appellant had violated department policy regarding neglect of duty and professionalism. The appellant was terminated as a result. After his termination, the appellant appealed to the Civil Service Commission. During the pendency of this appeal, the hearing examiner’s report found that the appellant “reasonably relied upon the advice of counsel” and that the “facts and circumstances” of this situation “were such that one could not reasonably have expected him to disregard advice of counsel based on his experience as a police officer.” However, the Commission disagreed and it denied the appellant’s appeal.

The appellant reasonably feared that Lt. Scheuermann’s assertion that he informed the appellant immediately after the event happened could mistakenly implicate him in a conspiracy, cover up or other crime. The appellant’s attorney advised his client that it would be prudent to remain silent and not provide potentially incriminating information against himself. This advice was based on his attorney’s experience with these types of investigations and the large net that was cast by the federal government regarding the events surrounding the death of Mr. Glover. His attorney feared that like in the Garrity case, any statement the appellant made would likely be used against him in a criminal prosecution.

The appellant was not aware that Officer McRae had burned Mr. Glover’s body until May of 2009 when Lt. Scheuermann informed the appellant that Officer McRae had burned the body and told the appellant that he thought the appellant was aware of that fact. However, when he was first questioned about the body in the car behind the Fourth District Station by Capt. Brisset, the appellant volunteered to contact Capt. Curóle and tell him what he knew. It was only in May of 2009 that the appellant became aware of police officer misconduct regarding the events surrounding the death of |aMr. Glover and upon the advice of his attorney chose to remain silent. There is no indication that the appellant had any knowledge of these events before May of 2009 or that he engaged in any police misconduct himself. In any event, the NOPD was already aware that Officer McRae had allegedly burned Mr. Glover’s body before the appellant ever learned these details from Lt. Scheuermann.

The appellant’s attorney advised his client to invoke his Fifth Amendment privilege against self-incrimination and not to report the conversation. In Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), the Supreme Court held that a state cannot discharge an employee for refusing to waive a constitutionally guaranteed right. However, that is exactly what happened in the instant case. The appellant was never directly asked about his knowledge regarding the burning of Mr. Glover’s body until after he testified in the Warren |7case. Furthermore, the appointing authority failed to establish that its termination of the appellant was based on good cause or that the punishment was commensurate with the alleged infraction. Accordingly, the Civil Service Commission’s denial of the appellant’s appeal was manifestly erroneous and arbitrary and capricious. I would reverse the Commission’s judgment and order that the appellant be reinstated at his former rank, with entitlement to back pay and all other emoluments of employment from the date of his termination.

        See United States v. David Warren, et al., Crim. Action No. 10-154(E.D. La.).

      . NOPD Operations Manual, Rule ^Performance of Duty, paragraph 4(a), provides:
      4. Neglect of Duty
      a. Each employee, because of his grade and assignment, is required to perform certain duties and assume certain responsibilities. An employee’s failure to properly function in either or both of these areas constitutes a neglect of duty.

      . NOPD Operations Manual, Rule 3: Professional Conduct, paragraph 1, provides:
      1. Professional

        Employees shall conduct themselves in a professional manner with the utmost concern for the dignity of the individual with whom they are interacting. Employees shall not unnecessarily inconvenience or demean any individual or otherwise act in a manner which brings discredit to the employee or the Police Department.

      . La. R.S. 40:2531(B)(5) provides: “No statement made by the police employee or law enforcement officer during the course of administrative investigation shall be admissible in a criminal proceeding.” See also Evans v. DeRidder Municipal Fire and Police Civil Service Board, 2001-2466 (La.4/3/02), 815 So.2d 61.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. John E. SPELLMAN.
    No. 13-KA-908.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 9, 2014.
    Order on Rehearing May 29, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Blair C. Constant, Vincent J. Paciera, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    John E. Spellman, Cottonport, Louisiana, Defendant In Proper Person.
    Margaret S. Sollars, Attorney at Law, Thibodaux, Louisiana, for Defendani/Ap-pellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

|gDefendant, John E. Spellman, appeals his convictions and sentences after pleading guilty to violating La. R.S. 14:108.1(C) by committing an aggravated flight from an officer (count one), and to violating La. R.S. 14:62 by committing a simple burglary (count two). Defendant’s appellate counsel filed a brief asserting that there are no non-frivolous issues on appeal, and moved to withdraw from this matter. Defendant has filed a pro se appellate brief setting forth several assignments of error. For the following reasons, we find defendant’s pro se assignments of error to be without merit, grant defendant’s counsel’s motion to withdraw, and affirm defendant’s convictions and sentences.

PROCEDURAL HISTORY

On March 6, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant with one count of aggravated flight from an officer |s(eount one), in violation of La. R.S. 14:108.1(C), and one count of simple burglary (count two), in violation of La. R.S. 14:62. Defendant pled not guilty to these charges at arraignment. Defendant filed several pro se pre-trial motions, including a motion to suppress evidence, motion to quash the bill of information, and motion to sever the charges. Defendant later withdrew these motions.

On June 26, 2013, Defendant withdrew his not guilty pleas and, after being advised of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), pled guilty as charged. In accordance with a plea agreement, the trial judge sentenced defendant to two years imprisonment at hard labor on count one and six years imprisonment at hard labor on count two, to run concurrently with the sentence imposed in count one, and with credit for time served. On the same day, the state filed a multiple offender bill of information on count two, alleging defendant to be a second time felony offender. After being advised of his rights, defendant stipulated to the multiple offender bill. The trial judge accepted defendant’s guilty plea to the multiple offender bill. The trial judge then vacated defendant’s original sentence on count two and, pursuant to the plea agreement, sentenced defendant to six years imprisonment at hard labor, to run concurrently with the sentence imposed in count one, without the benefit of probation or suspension of sentence, and with credit for time served.

On July 12, 2013, defendant filed a pro se motion for reconsideration of sentence, which was denied by the trial judge on August 5, 2013. On July 18, 2013, defendant filed a motion for appeal, which the trial judge granted on August 5, 2013. This instant appeal follows.

I .DISCUSSION

In this appeal, defendant has filed a pro se brief assigning three errors of the trial court and requesting a review for errors patent. Additionally, the attorney appointed to represent defendant for this appeal has filed a brief asserting that there are no non-frivolous issues that defendant may appeal and has moved to withdraw from her representation of defendant. For the following reasons, we find defendant’s pro se assignments of error to be without merit and grant defendant’s attorney’s motion to withdraw.

Pro Se Assignment of Error One

In his first assignment of error, defendant argues that the trial judge imposed his sentence as a second time felony offender prior to the state timely filing the bill of information alleging the same. Specifically, defendant contends that the multiple bill does not indicate the exact time it was officially stamped and filed with the clerk of court. Defendant argues that without this stamp, the state cannot show that the multiple bill was filed prior to the trial court’s acceptance of his stipulation to the multiple bill.

By stipulating to the multiple bill, defendant waived his right to a hearing and any possible non-jurisdietional defects. An unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the state failed to produce sufficient proof at the multiple offender hearing. See State v. Crosby, 338 So.2d 584 (La.1976); State v. Lavigne, 95-0204 (La.App. 4 Cir. 5/22/96), 675 So.2d 771, writs denied, 96-1738 (La.1/10/97), 685 So.2d 140; State v. Perret, 628 So.2d 92 (La.App. 5 Cir.1993). Therefore, defendant cannot now challenge this alleged defect after he had stipulated to the multiple bill. However, even assuming arguments, we would find defendant’s claim to be without merit.

RLa.C.Cr.P. art. 874 states that a sentence shall be imposed without unreasonable delay. State v. Jones, 08-466 (La. App. 5 Cir. 10/28/08), 998 So.2d 178, 181. Under La. R.S. 15:529.1(D)(l)(a), a habitual offender bill may be filed against a defendant who has been convicted of a felony “at any time, either after conviction or sentence.” See Jones, supra at 181. Our review of the June 26, 2013 transcript reveals that the state filed its multiple offender bill against defendant, in open court, immediately after defendant was convicted and sentenced on counts one and two. Despite defendant’s argument to the contrary, this was a timely filing of the multiple offender bill of information against defendant by the state. Accordingly, we find defendant’s first pro se assignment of error to be without merit.

Pro Se Assignment of Error Two

In his second assignment of error, defendant argues the trial court erred by imposing an enhanced sentence under La. R.S. 15:529.1, where subsection (C) of that statute prohibited that enhanced sentence. Specifically, defendant argues that the state failed to prove that the ten year cleansing period for the underlying offense used to charge defendant as a second felony offender had not elapsed. After considering the record in this case, we again find that defendant is procedurally barred from review of this assignment of error.

Prior to accepting defendant’s guilty plea, the trial judge advised defendant of his constitutional rights and told him what his enhanced sentence would be. The record indicates that defendant stipulated to the multiple bill and acknowledged that by doing so, he was giving up his right to have a hearing and to force the state to prove that not more than ten years had elapsed between the date of the commission of his current offense and the expiration of the maximum sentence of his previous conviction.

IiAs explained above, by stipulating to the multiple bill, defendant waived his right to a hearing and any possible non-jurisdictional defects. An unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the state failed to produce sufficient proof at the multiple offender hearing. See State v. Crosby, supra; State v. Lavigne, supra; and State v. Perret, supra. Accordingly, we find defendant has waived any challenge that the state failed to prove the applicable cleansing period; therefore, this assignment of error is also without merit.

Pro Se Assignment of Error Three

In his third assignment of error, defendant argues the trial court erred in finding him guilty of committing a “simple burglary” in violation of La. R.S. 14:62, when the bill of information filed against him fails to properly charge defendant with all of the elements of the offense of La. R.S. 14:62. Specifically, defendant complains that the bill of information does not charge the essential simple burglary element of the “unauthorized entering of any dwelling or structure.” Defendant contends that the bill of information states that defendant committed simple burglary of “Kid Creole,” which he believes is the name of a person, not a dwelling or structure. Because a simple burglary cannot be committed on a person, defendant maintains that the bill of information is defective on its face.

Defendant’s argument is misplaced. The “Kid Creole” which the bill of information indicates is located at 1919 Airline Drive, is in fact a structure, and not a person. This fact is ascertainable from the probable cause affidavit of Deputy | ^Anthony Buttone, of the Jefferson Parish Sheriffs Office. In it, Deputy Buttone attested that on February 23, 2013, he responded to a burglary alarm at 1919 Airline. Upon arrival at the business, Deputy Buttone observed that the glass front door had been shattered. Defendant was seen leaving the premises in his vehicle. A high speed chase ensued before defendant’s vehicle came to a crashing halt. Defendant was eventually arrested, and found to be in possession of cigarettes that were identified as having been stolen from the gas station located at 1919 Airline. Furthermore, the transcript from the hearing at which defendant pled guilty reveals that defendant knew that he was being convicted for burglarizing a structure. During this hearing, defendant stated that he was pleading guilty because he “broke into the gas station.” For these reasons, we find this assignment of error to be without merit.

Anders Brief

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4th Cir.1990), defendant’s appointed appellate counsel has filed a brief 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, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting she has thoroughly reviewed the trial court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests 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. In Jyles, 704 So.2d 241, the Louisiana Supreme Court explained that an An-ders brief must demonstrate by |sfull 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.”

An appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly frivolous. “When counsel files an Anders brief, an appellate court reviews several items: a) the Bill of Information to ensure that the charge is proper, b) all minute entries to ensure that defendant was present at all crucial stages of the prosecution, c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a basis for appeal.” State v. Defrene, 07-823 (La. App. 5 Cir. 2/19/08), 980 So.2d 31, 33. 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 point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

In this case, appointed appellate counsel’s brief demonstrates that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. The state agrees and urges this Court to grant defense counsel’s request to withdraw as counsel of record. After conducting our own independent review of the record, we agree with the assertion of defendant’s appellate counsel that there are no non-frivolous issues to raise on appeal.

First, the filed bill of information properly charged defendant with aggravated flight from an officer and simple burglary in violation of La. R.S. 14:108.1(0 and La. R.S. 14:62, respectively. As required, the bill of information |9clearly, concisely, and definitely states the essential facts constituting the offense charged and sufficiently identifies defendant and the crime charged. See La.C.Cr.P. arts. 464-466. Second, the minute entries and commitment reflect that defendant appeared at each crucial stage of the proceedings against him. Defendant appeared at his arraignment on March 7, 2013, and pled not guilty. Defendant also physically appeared in open court on June 26, 2013, for his guilty plea, his original sentencing, his multiple offender hearing, and his multiple offender sentencing. Third, defendant’s guilty pleas — on his underlying bill and his multiple offender bill — are proper. The trial judge informed defendant in open court of the sentencing range and the sentence that would be imposed in the event that he pled guilty in each instance. The trial judge also advised defendant that the state would file a bill of information alleging that he was a second time felony offender on his simply burglary conviction. The trial judge informed defendant that if he then stipulated to this multiple bill that he would be sentenced to six years at hard labor, to be served concurrently with his sentence on count one and with credit for time served, but without the benefit of probation or suspension of sentence. The trial judge then advised defendant of his rights under Boykin, supra, Defendant testified that he understood that he was waiving his rights and what his sentence would be. The trial judge then accepted defendant’s guilty plea.

Thereafter, the state filed its multiple offender bill of information, and the trial judge again advised defendant of his rights. After accepting defendant’s waiver of his rights and stipulation to the multiple bill, the trial judge resentenced defendant in conformity with the plea agreement.

hnAfter reviewing the transcript of defendant’s pleas, we find that defendant was informed of his underlying and enhanced sentences prior to each plea. Lastly, defendant’s original and enhanced sentences are well within statutory guidelines. See La. R.S. 14:108.1; 14:62; and 15:529.1. Further, because defendant was sentenced in conformity with his guilty plea, defendant is precluded from challenging his sentence on appeal. State v. Hill, 09-89 (La. App. 5 Cir. 5/26/09), 15 So.3d 1042, 1044.

Upon an independent review of the record, we find no non-frivolous issues for appeal. Defendant’s appointed appellate counsel has adequately demonstrated her review and analysis of the record in this case. Our independent review of the record supports counsel’s assertions set forth in her Anders brief. Therefore, we find that counsel’s request to withdraw as counsel of record should be granted.

Errors Patent

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 812 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), regardless of whether defendant makes such a request. Our review of the record reveals no errors patent which require correction.

Conclusion

Accordingly, defendant’s convictions, multiple offender adjudication, and sentences are affirmed. Defendant’s appointed appellate counsel’s motion to withdraw is hereby granted.

AFFIRMED.

ORDER ON REHEARING

This Court granted rehearing on a pro se assignment of error claiming that Applicant was denied his right to the effective assistance of counsel. The original judgment dated April 9, 2014 did not address this error. Ineffective assistance of counsel, however, is most appropriately addressed through an application for post-conviction relief filed in the trial court, where a full evidentiary hearing can be conducted, rather than on direct appeal. Only when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by assignment of error on appeal, may it be addressed in the interest of judicial economy.

We do not find that the instant record contains sufficient evidence to rule on the merits of his claim. If the Applicant seeks to pursue the allegation of ineffective assistance of counsel, he should do so properly through an application for post-conviction relief filed in the trial court.

Accordingly, this request for relief is denied.

      . A fine of one hundred and fifty dollars to the Jefferson Parish Sheriff's Office, and forty-five dollars to the Indigent Defender Board was also imposed.

      . Even were we to address this claim on its merits, we would again find it to be without merit. The official record reveals that in Twenty Fourth Judicial District Court case number 05-0290 — the predicate case cited in the multiple offender bill of information against defendant in this matter — defendant was sentenced on June 22, 2007. Minute entries reveal that, on that date, defendant was sentenced to two four-year terms of imprisonment on two counts of theft in violation of La. R.S. 14:67. These sentences were to be served concurrently, with credit for time served, at hard labor with the Department of Corrections.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . Specifically, the trial court advised defendant that he would be sentenced to two years of imprisonment on his first count of aggravated flight from an officer and six years of imprisonment on his second count of simple burglary. Both of these sentences were to be served at hard labor in the Department of Corrections.