author: DANIEL L. DYSART, Judge.

text:
    STATE of Louisiana v. Cardell D. ANDERSON.
    No. 2013-KA-0978.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 30, 2014.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant/State of Louisiana.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellee.

      (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU).
   DANIEL L. DYSART, Judge.

| /rhe State of Louisiana appeals a judgment of the trial court wherein a Motion to Quash the bill of information was granted in favor of defendant, Cardell D. Anderson. For the reasons set forth below, we reverse the ruling of the trial court and remand the matter for further proceedings.

PROCEDURAL HISTORY:

The defendant, Cardell Anderson, was arrested on July 25, 2008 and charged with possession of a stolen vehicle and flight from an officer. On July 80, 2008, a bond instrument was executed in the name of Cardell Anderson, but was signed by “Kevin Hicks.” The defendant was charged by bill of information, filed on September 23, 2008, with unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4, to which he plead not guilty at his arraignment on September 26, 2008. A hearing on motions was set for December 16, 2008. Defense counsel appeared without the defendant, who was not served; the hearing was reset for ^February 18, 2009. On that date, the defendant failed to appear, and an alias capias issued. A bond forfeiture hearing was set for March 5, 2009, and the defendant did not appear. The trial court granted the bond forfeiture, and another alias capias issued. On June 12, 2009, the defendant was arrested, and the arrest on the capias was filed on June 15, 2009. On June 16, 2009, the defendant appeared with appointed counsel. The trial court recalled the alias capi-as and issued a release. On July 24, 2009, the defendant appeared with counsel for the hearing on the previously filed motions. The court found probable cause and denied the motion to suppress evidence. The court ordered the defendant to hire private counsel; however, on July 31, 2009 the court appointed the Orleans Public Defender’s office (OPD) to represent him. On August 6, 2009, the defendant appeared with counsel, and the trial court ordered the OPD conflict panel to remain on the case. Trial was set for August 18, 2009. On that date, the defendant appeared with counsel for trial, which was continued on a defense motion to October 14, 2009. On that date, the defendant failed to appear for trial. The defendant’s bond was forfeited and an alias capias was issued for his arrest.

Over three years later, on November 26, 2012, the defendant filed a pro se motion to quash the bill of information for failure to timely prosecute. The motion listed the defendant’s name as Kevin Hicks and stated that he was currently incarcerated at Jackson Parish Correctional Center. Although the motion is stamped and dated, there is no indication in the record that the motion was filed, or that the State was served with the motion. The record also indicates that a Motion and Order for Writ of Habeas Corpus Ad Prosequendum was filed by the State and signed by the court on January 24, 2018, for defendant, Cardell Anderson, a/k/a Kevin Hicks, to be transported for a hearing on February 6, 2013, from the Jackson Parish Jail. A handwritten notation on the writ indicates that the signed order was sent by facsimile to the Department of Corrections on January 24, 2013.

On February 6, 2013, the defendant failed to appear for a status hearing; he also did not appear on March 5, 2013 for a status hearing. On March 22, 2013, defense counsel appeared without the defendant and filed a counseled “motion to quash based on running of prescriptive period.” On that date, the trial court, without written reasons, granted the motion to quash the bill of information. The court recalled the alias capias and issued a release. This appeal followed.

DISCUSSION:

In its sole assignment of error, the State argues that the trial court abused its discretion by granting the defendant’s motion to quash as prescription was interrupted when the defendant was given actual notice of the October 14, 2009 trial date but never appeared in court thereafter. The State argues that the earliest date that it could have known about the defendant’s incarceration was the date that he filed his pro se motion to quash on November 26, 2012. However, that date is problematic in that the defendant filed it under the name of Kevin Hicks, an alias unknown to the State, and there was nothing to indicate that the State had been served with the motion. The State points out that the counseled motion to quash filed on March 22, 2013 made several factual assertions about the defendant’s incarceration, but no documentation was submitted to support those assertions, and no exhibits were filed at the hearing. The State maintains that the defendant’s right to a speedy trial has not been violated because the delay was attributable to his |4failure to appear for trial after being given actual notice in open court of the October 14, 2009 trial date.

The defendant argues that his motion to quash was based on La.Code Crim. Proc. art. 532(A)(7), which provides that a bill of information shall be quashed if the time limitation for the institution of the prosecution or for the commencement of trial has expired. The defendant contends that none of the exceptions to La. Code Crim. Proc. art. 578 listed in La. Code Crim. Proc. art. 579 apply in this case, and that Article 579 A(l) does not apply because the defendant did not intentionally get arrested in Jefferson Parish to avoid prosecution in Orleans Parish. The defendant argues that the State took no measures to obtain the defendant’s presence in court despite the fact that he was incarcerated in neighboring Jefferson Parish. The Defendant concedes that he had actual notice of trial, but was unable to appear due to his incarceration in another parish. The defendant claims that he was arrested on September 17, 2009 in Jefferson Parish; therefore, the running of prescription began on that date and the two-year prescriptive period would have tolled on September 17, 2011. Alternatively, the defendant contends that the date that the prescriptive period should have started anew was the date that he plead guilty to attempted second degree murder in Jefferson Parish and was given a four-year sentence, January 18, 2011, with the prescriptive period thereby expiring on January 18, 2013. Again, no evidence of any of these alleged facts were entered into the record of these proceedings.

|sAt the March 22, 2013 hearing, the trial court examined the record and set forth the following timeline:

The defendant was in court on September 26, 2008 for his arraignment; he pleaded not guilty;
On October 7, 2008 the defendant appeared without counsel;
On December 16, 2008 counsel appeared without the defendant, and the hearing on the motions was reset to February 18, 2009;
On February 18, 2009 the defendant failed to appear;
On March 5, 2009 the defendant failed to appear, and the trial court issued a capi-as;
On June 12, 2009 he was arrested, and he appeared in court on June 16, 2009; the court recalled the capias on that date;
On July 24, 2009 the defendant appeared with counsel for the hearing on the motions;
On July 28, 2009 the court found probable cause and denied the motion to suppress the evidence; the court ordered that the defendant could not be represented by OPD because he had made bail;
On July 31, 2009 he appeared without counsel for a hearing to determine counsel, and an attorney stood in; the court appointed OPD, and trial was set for August 18, 2009;
On August 4, 2009 a hearing was set for August 6, 2009;
On August 18, 2009 the defendant appeared with counsel for trial, which was continued on a defense motion to October 14, 2009;
On October 14, 2009 the defendant failed to appear.

The defendant claims that he was arrested in Jefferson Parish on September 17, 2009, and had been incarcerated there since that date. The defendant claimed that he plead guilty to attempted second degree murder in Jefferson Parish in 2011 and was given a four-year sentence. After reviewing the record and discussing the matter “off the record” with counsel, the court declared that the last date the defendant appeared in Criminal District Court for Orleans Parish, August 18, 2009, was the “magic date,” and granted the motion to quash.

| STANDARD OF REVIEW:

A trial court’s ruling on a motion to quash is reviewed under an abuse of discretion standard. State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206; State v. Jordan, 12-0930, p. 3 (La.App. 4 Cir. 6/5/13), 118 So.3d 1235, 1237.

The right to a speedy trial is guaranteed by both the United States and the Louisiana constitutions. U.S. Const. Amendment 6; La. Const. Art. I, § 16. In addition to the statutory right to a speedy trial recognized by La.Code Crim. Proc. art. 701A, a defendant also has a fundamental constitutional right to a speedy trial. See State v. Scott, 04-1142, p. 11 (La.App. 4 Cir. 7/27/05), 913 So.2d 843, 850. The standard for analyzing such a claim has been set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and the cases interpreting it:

The Supreme Court has set forth the following four factors for courts to consider in determining whether a defendant’s right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) the accused’s assertion of his right to speedy trial; and (4) the prejudice to the accused resulting from the delay. Id. at 531-532, 92 S.Ct. at 2192-93; see also State v. Reaves, 376 So.2d 136 (La.1979) (adopting Barker factors). The specific circumstances of a case will determine the weight to be ascribed to the length of and reason for the delay because “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” [State v.] Reaves, 376 So.2d at 138 (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192).

State v. Gaines, 08-0967, p. 2 (La.App. 4 Cir. 2/11/09), 5 So.3d 915, 916-17, (quoting State v. Batiste, 05-1571, pp. 6-7 (La.10/17/06), 939 So.2d 1245, 1250). See also State v. Kitchens, 09-0834, 09-0836, p. 4 (La.App. 4 Cir. 3/24/10), 35 So.3d 404, 406.

The State bears a heavy burden to demonstrate that an interruption or suspension of the prescriptive period has occurred where a defendant has a 17meritorious motion to quash the bill of information. State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1286.

In this case, the bill of information was filed on September 28, 2008, and the defendant’s pro se motion to quash was filed on November 26, 2012. The counseled motion to quash was filed on March 22, 2013. As to the reason for the delay, the State argues that the defendant did not appear for trial after he had actual notice of the October 14, 2009 trial date. He did not appear in court until 2013. Further, the defendant did not file a motion asserting his right to a speedy trial, and makes only generalized allegations that the delay has prejudiced his ability to defend against the unauthorized use of a motor vehicle charge. Although the length of the delay may be presumptively prejudicial, after a consideration of the other Barker v. Wingo factors, we find that the ruling of the trial court quashing of the bill of information was not warranted.

As to the defendant’s claim that he had a statutory right to a speedy trial, La.Code Crim. Proc. art. 578 provides in pertinent part:

A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
(2) In other felony cases after two years from the date of institution of the prosecution. ...

La.Code Crim. Proc. art. 579 provides:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal | ^process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

La.Code Crim. Proc. art. 580 provides:

A. When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.
B. The periods of limitation established by Article 578 shall also be suspended if the court grants a continuance in accordance with the provisions of Paragraph B of Article 709.

Once the original two-year period from institution of prosecution lapsed and the defendant moved to quash the charges against him due to a violation of La.Code Crim. Proc. art. 578 A(2), the State bore a heavy burden of justifying any delay. State v. Odom, 06-0975 (La.11/3/06), 941 So.2d 24, 26; State v. Causey, 02-1848, p. 5 (La.App. 4 Cir. 4/9/03), 844 So.2d 1076, 1079. See also State v. Peters, 10-0939, p. 10 (La.App. 4 Cir. 11/17/10), 52 So.3d 233, 239. The State had to demonstrate either an interruption or a suspension of the time limit to prove that prescription did not toll.

“An interruption of prescription occurs when the state is unable, through no fault of its own, to try a defendant within the period specified by statute.” State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1286-87.

In State v. Romar, 07-2140, p. 6 (La.7/1/08), 985 So.2d 722, 725 the Louisiana Supreme Court held that La.Code Crim. Proc. art. 579 A(3) does not impose on the State the affirmative duty to search for a defendant who has failed to appear for trial after receiving actual notice. Once the cause of interruption ceases, the prescriptive period runs anew. La.Code Crim. Proc. art. 579 B.

The defendant in Romar was charged with a third offense DWI in 1997 and appeared for arraignment in January 1998. He appeared again for a pretrial motion hearing, which was then reset for April 1998. After failing to appear in April and again in June 1998, the court forfeited the defendant’s bond and issued an attachment for his arrest. The defendant was not arrested until 2006, eight years later. He subsequently sought to quash the prosecution on the grounds that the state had failed to exercise due diligence to execute the outstanding warrant in the years following his non-appearance in court. He presented evidence to show that he had renewed his driver’s license in 2003 and also presented utility bills to show that he had lived at the same address for many years. He admitted that he never notified the court or his bondsman of his change of address, testifying that his attorney told him that he would take care of it. The trial court quashed the charge, and the appellate court affirmed. The Supreme Court reversed, stating:

In the present case, the period of limitation did not begin to run anew until the cause of the interruption no longer existed, i.e., until defendant was finally arrested on the | mopen attachment and appeared in court to dispose of the criminal contempt proceeding. The burden under La.C.Cr.P. art. 579(A)(3) thus falls not on the state to show that defendant had placed himself outside of its control to secure his presence at trial but on defendant and his sureties to avoid the consequences of his failure to appear in court after receiving notice, and one of those consequence [sic], since 1984, is the interruption of the time limits placed on trial.

Romar, 07-2140, pp. 7-8, 985 So.2d at 727. Thus, the Court found the fact that the defendant was theoretically “locatable” to be of no significance once it was established that the defendant had received actual notice.

In State v. Baptiste, 08-2468 (La.6/23/10), 38 So.3d 247, the Louisiana Supreme Court found that the state did not bear a duty to monitor the status of the outstanding arrest warrant issued for the defendant, who failed to appear in Plaquemines Parish after receiving actual notice of the hearing date. The defendant was incarcerated in St. Charles Parish approximately six months after the arrest warrant was issued by Plaquemines Parish. The Louisiana Supreme Court found that prescription was interrupted when the defendant failed to appear in court, and that the interruption of prescription ended when the St. Charles Parish authorities contacted officials in Plaquemines Parish and notified them of defendant’s impending release, after they discovered the outstanding warrant.

In State v. McQuirter, 12-0486 (La.App. 4 Cir. 1/23/13), 108 So.3d 370, the defendant argued a violation of her constitutional and statutory right to a speedy trial, as there had been a delay of nearly nine years in bringing her to trial. This Court concluded:

The record before this Court shows that the appellee received notice in open court on June 24, 2003 to appear on July 14, 2003, and that she failed to do so. Because we find that the State has carried its burden of proving that the ap-pellee received adequate service, there In was no basis to quash the bill on statutory grounds. Further, we do not find that the State had an obligation to bring the appellee to trial while she was incarcerated in Jefferson Parish once the prescription period was interrupted when appellee failed to appear in court. See State v. Williams, 2011-1231, pp. 6-7 (La.App. 4 Cir. 5/23/12), 95 So.3d 554, 558, (whereby this Court held that the State is under no obligation to locate a defendant who was subsequently incarcerated in another parish once the prescriptive period has been interrupted by record proof of actual notice.)

McQuirter, 12-0486, pp. 9-10, 108 So.3d at 375-76.

The defendant was given actual notice of the October 14, 2009 trial date in court on August 18, 2009 when he appeared with counsel for trial, and his motion to continue was granted. The defendant concedes that he was given actual notice of the trial date of October 14, 2009. Pursuant to the aforementioned jurisprudence, the running of the two-year time limit was interrupted on that date, and the interruption did not end until, at the earliest, January 24, 2013 (when the State moved to have the defendant transferred from the Jefferson Parish jail and brought to court). Assuming the time period began to run anew on that date, prescription would have been suspended by the filing of the defendant’s counseled motion to quash on March 22, 2013. Therefore, we find that the defendant’s statutory right to a speedy trial has not been violated and that the delay was occasioned by his failure to appear for trial after being given actual notice in open court.

CONCLUSION:

Accordingly, we find that the trial court abused its discretion when it granted | ^the defendant’s motion to quash. We reverse the ruling of the trial court which granted the defendant’s motion to quash and remand for further proceedings.

REVERSED AND REMANDED.

      . After a review of the Orleans Parish Sheriff's Office docket masters and the computer link to criminal district court's computer system, we have determined that Cardell Anderson has an alias, Kevin Hicks. Both Cardell Anderson and Kevin Hicks were bom on January 16, 1989, and both have the same social security number. Kevin Hicks was charged in another case (470-572 H7M2) with carrying a concealed weapon, but that charge was nolle prosequied on October 28, 2008. Defendant used the alias, Kevin Hicks, a/k/a Cardell Anderson, when he filed his pro se motion to quash in this case. Defense counsel concedes that Cardell Anderson is an alias for Kevin Hicks.

      . Appellate counsel concedes in her brief that the defendant had actual notice of the October 14, 2009 trial date.

      . This Court takes judicial notice that the address provided by the defendant in his pro

        se motion to quash is correct for the Jackson Parish Correctional Center.

      . There is no subsection (A) in the article. La.Code Crim. Proc. art. 532 provides in part:
      "A motion to quash may be based on one or more of the following grounds: (7) The time limitation for the institution of prosecution or for the commencement of trial has expired.”

      . 2013 La. Acts, No. 6, § 1 added Subsection C. which currently provides:

        C. If the defendant fails to appear in court pursuant to any provision of this Article and the defendant is subsequently arrested, the periods of limitations established by Article 578 of this Code shall not commence to run anew until the defendant appears in person in open court where the case on the original charge is pending, or the district attorney prosecuting the original charge has notice of the defendant's custodial location. For purposes of this Paragraph, "notice” shall mean either of the following:
      (1) Filing in the court record by either the defendant or his counsel advising the court of his incarceration with a copy provided to the district attorney and certification of notice provided to the district attorney.
      (2) Following the seventy-two hour hearing provided by Article 230.1 of this Code, actual notice of arrest is provided to the district attorney and filed in the record of the proceeding of which the warrant against the defendant was issued.

      . The defendant also admitted that he used an alias in the criminal district court case, and the use of the alias would have suspended the prescriptive period.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    Nancy BLANCHARD and Park Plantation, L.L.C. v. LINDER OIL COMPANY, a Partnership; Tortuga Operating Co.; and Blanchard 1986 Ltd., a Limited Partnership.
    No. 13-CA-737.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 12, 2014.
    Rehearing Denied March 28, 2014.
    R. David Brown, Attorney at Law, Baton Rouge, Louisiana, for Intervenor/Ap-pellant.
    Walter P. Maestri, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Joe B. Norman, Cheryl M. Kornick, Dana M. Douglas, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and Jude G. GRAVOIS.
   FREDERICKA HOMBERG WICKER, Judge.

12Appellant, Paul Maclean, appeals the trial court’s dismissal of his Petition for Intervention. Because we find that the trial court properly dismissed Maclean’s petition for intervention pursuant to La. C.C.P. art. 934, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL HISTORY

On April 19, 2004, Nancy Blanchard and Park Plantation, LLC (hereinafter “plaintiffs”) filed suit against various defendants for damages arising out of mineral leases granted to defendants by plaintiffs’ predecessor-in-interest, Betty Blanchard, on plaintiffs’ property, referred to as “Park Plantation.” On March 25, 2011, Paul Maclean, appellant herein, filed a Petition for Intervention, asserting a “legal interest in the minerals and production of the disputed property and thereby, the outcome of this litigation.” Maclean, naming various defendants-in-intervention (“defendants”), alleged in his petition that the current litigation is the | ..¡third of four lawsuits connected to a 1942 mineral lease on Park Plantation; that he was named Betty Blanchard’s agent to handle the leases and litigation related to the Park Plantation property; and that he was a party-plaintiff in a 1986 lawsuit concerning the property, which resulted in a 1996 settlement agreement with certain defendants. He further alleged that the 1996 settlement contract is contrary to public policy because it aided in concealing environmental hazards on the property and is therefore null and void ab initio, Finally, he alleged that, in return for his services, Betty Blanchard granted unto him a mineral lease interest on Park Plantation property and that he is entitled to damages for environmental hazards created and concealed by certain defendants.

In response to Maclean’s Petition for Intervention, defendants filed dilatory exceptions of vagueness, ambiguity, lack of procedural capacity, and nonconformity of the petition, and peremptory exceptions of no right of action and no cause of action. All defendants, with the exception of Lin-der Oil Company and Linder Energy Company, also filed the peremptory exception of non-joinder of an indispensable party under La. C.C.P. arts. 641 and 642, asserting that Maclean failed to name plaintiffs, Nancy Blanchard and Park Plantation, L.L.C. as indispensable parties and defendants-in-intervention. After a September 30, 2011 hearing, the trial judge informed the parties that he would be taking the matter under advisement. The trial judge allowed the parties to file post-hearing memoranda within one week prior to taking the matter under advisement. The trial judge indicated that he would not render a decision quickly, recognizing the ^voluminous record and history of the case, stating that, “[i]t [the judgment] won’t be finished like that. There is a lot here.”

On June 11, 2012, the trial judge rendered a judgment on defendants’ exceptions. The judgment denied defendants’ exceptions of lack of procedural capacity and no right of action, finding that, based on the allegations in the petition for intervention, Maclean is an affected party with an interest in the outcome of the litigation. The judgment granted the remaining exceptions, including defendants’ peremptory exceptions of no cause of action and non-joinder of indispensable parties, finding that Maclean failed to properly state any cause of action against any defendant and failed to join plaintiffs, Nancy Blanchard and Park Plantation, L.L.C. as defendants-in-intervention. Although the judgment granted certain exceptions, the judgment further granted Maclean fifteen days to amend his petition to cure the objections raised by the exceptions. Maclean failed to amend his petition within the fifteen-day time period.

On August 8, 2012, defendants filed a joint motion to dismiss Maclean’s petition for intervention, asserting that Maclean’s petition should be dismissed with prejudice for failure to comply with the trial court’s order permitting amendment, |sciting La. C.C.P. art. 934. On August 16, 2012, the trial judge signed a Rule to Show Cause setting defendants’ motion to dismiss for a contradictory hearing on November 2, 2012. Maclean did not file an opposition to the joint motion to dismiss. Maclean did not attend or make an appearance at the November 2, 2012 hearing on defendants’ motion to dismiss. After brief oral argument, the trial judge granted defendants’ joint motion to dismiss and dismissed Maclean’s petition for intervention with prejudice. Maclean now appeals.

DISCUSSION

The June 11, 2012 judgment granted certain dilatory and peremptory exceptions but further granted Maclean fifteen days to amend his petition to remove the objections raised by the exceptions. Maclean failed to amend within the fifteen days granted by the trial judge. We find that La. C.C.P. arts. 932 and 934 mandate dismissal under the facts of this case. Regarding the granting of peremptory exceptions, La. C.C.P. art. 934 provides:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

(emphasis added).

|fiWe find that the mandatory “shall” language provided in La. C.C.P. art. 934 required the trial judge to dismiss Mac-lean’s petition for intervention in this case. Maclean asserts that his petition should not be dismissed because he did not receive notice of the June 12, 2012 judgment on defendants’ exceptions. The record reflects that notice was issued to Maclean’s counsel. The record further indicates that Maclean’s counsel moved law offices and failed to inform the Court of his change of address prior to the court issuing the judgment. Most importantly, the record reflects, and Maclean concedes, that he did receive notice of the November 2, 2012 hearing on defendants’ “Joint Motion to Dismiss the Intervention of Paul Maclean With Prejudice” and the record further is clear that Maclean failed to oppose the motion or appear for the contradictory hearing set. Therefore, we find the trial judge did not err in dismissing Maclean’s petition for intervention. Further, because the judgment at issue granted various peremptory exceptions, which are intended to preclude an action, we find the trial judge did not err in dismissing Mac-lean’s petition for intervention with prejudice.

Maclean further complains that the trial judge did not render his judgment until June 11, 2012, several months after the September 30, 2011 hearing. 17Maclean asserts that the trial judge, in failing to render his judgment within thirty days, violated La. R.S. 1S:4207. However, the trial judge’s compliance with La. R.S. 13:4207 is irrelevant to the analysis at issue. This Court has held that “although La. R.S. 13:4207 requires a trial judge to render a judgment in a case taken under advisement within 30 days of submission of the case, it does not provide that a judgment rendered later than that is invalid.” Farrell v. Pierre, 02-1136 (La.App. 5 Cir. 4/8/03), 846 So.2d 49, 52. Rather, this Court has found that the penalty for violating La. R.S. 13:4207 “ ‘is solely a penalty to the judge and not invalidity of the judgment.’ ” Id. (citing Dragon v. Schultz, 97-664 (La.App. 5 Cir. 1/14/98), 707 So.2d 1274, 1276). Therefore, we do not consider whether the trial judge violated La. R.S. 13:4207, as it is inapplicable to our analysis or review of the appealed judgment in this case.

Accordingly, for the reasons provided herein, the judgment of the trial court is affirmed.

AFFIRMED.

      . Named defendants in plaintiffs’ original petition are Linder Oil Company, Tortuga Operating Company, and Blanchard 1986, Ltd.

      . In plaintiffs’ original petition for damages, plaintiffs allege that Linder Oil Company and Tortuga Operating Company created and concealed environmental hazards discovered on Park Plantation; created subsurface damages; and have failed to explore for oil and thus failed to pay sufficient royalties.

      . Named defendants-in-intervention are BP Corporation of North America, Inc., successor in title to Atlantic Richfield Company (ARCO), Texaco Exploration and Production, Chevron USA, Inc., Chevron USA Holding, Inc., Marathon Oil Company, Tortuga Interest, Inc., Tortuga Operating Company, Linder Energy Company, Blanchard 1986, John E. Hiñe, and Peter L. Turbett.

      . Betty Blanchard is now deceased.

      . This case has a complex procedural history. The 1996 settlement agreement in this case has been previously challenged in a separate federal lawsuit. See Blanchard 1986, Ltd. v. Park Plantation, LLC, 553 F.3d 405, 409 (5th Cir.2008).

      . Defendant-in-intervention Texaco also filed an exception of res judicata.

      . The record reflects that the clerk of court issued notice on June 21, 2012 and mailed notice to all parties on June 22, 2012.

      . The June 21, 2012 judgment granted defendants' dilatory exceptions of vagueness, ambiguity, and nonconformity with the petition; denied the exceptions of lack of procedural capacity and no right of action; denied in part and granted, in part, Texaco's exception of res judicata — granted only as to those claims arising prior to the 1996 settlement in the previous litigation; and granted the peremptory exceptions of no cause of action and non-joinder of party under La. C.C.P. art. 641 and 642. The judgment granted Maclean fifteen days to amend his petition to cure the objections raised by the various exceptions.

      . On August 3, 2012, forty-two days after the clerk issued notice of the June 21, 2012 judgment, Maclean filed a motion for extension of time to file his amended petition, asserting that "for indeterminate reasons” he did not receive the trial court’s June 11, 2012 judgment until July 26, 2012. On August 8, 2012, the trial court denied Maclean’s motion for extension of time, finding that Maclean had failed to inform the court of a new address and telephone number and that notice was issued to counsel's address provided to the court. Despite the trial court's judgment, Maclean filed an amended petition on August 10, 2012. On September 7, 2012, Maclean fax-filed a motion for appeal and/or notice of intent to apply for supervisory writ from the trial court’s denial of his motion for extension of time. However, Maclean failed to properly file his motion for appeal and/or notice of intent to apply for supervisory writ. La. R.S. 13:850 requires that, when a party files a pleading through facsimile, the filing party "shall" submit the original signed document, applicable filing fee, and a $5.00 transmission fee, to the clerk of court within seven days, exclusive of legal holidays, after the clerk of court has received the transmission. The provisions of La. R.S. 13:580 are mandatory in order for a facsimile filing to have force and effect. See Yates v. State Farm Mut. Auto. Ins. Co., 04-1028 (La.App. 5 Cir. 1/25/05), 894 So.2d 1157, 1159. The record reflects that Maclean’s motion was fax-filed but there is no evidence indicating that Maclean complied with the mandatory provisions of La. R.S. 13:580. Accordingly, the September 7, 2012 motion was never properly filed, thus having no effect, and the trial court properly denied the motion.

      .La. C.C.P. art. 934 provides:
      When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

      . The record indicates that service was issued to Maclean, through his counsel of record, at the new address provided to the court. Maclean does not allege in his briefs to this Court that he did not receive notice of the November 2, 2012 hearing on defendants’ motion to dismiss. Rather, counsel indicates that he elected not to attend the hearing and chose to await the trial court's decision on the improperly filed motion for appeal.

      . Further, at the hearing on the motion to dismiss, defense counsel represented to the court that Maclean was in fact served with notice of the November 2, 2012 hearing on August 24, 2012 and that no opposition had been filed.

      . As to the granting of the dilatory exceptions, the petition was dismissed without prejudice and as to the peremptory exceptions, the petition was dismissed with prejudice.

      . La. C.C.P. art. 932, in pertinent part, provides:
      If the grounds of the objection cannot be so removed, or if the plaintiff fails to comply with an order requiring such removal, the action, claim, demand, issue, or theory subject to the exception shall be dismissed.

      . In this appeal, Maclean also assigns as error the trial judge’s June 11, 2012 judgment on defendants’ exceptions. We find the designated record before us is insufficient to determine whether Macleans’ petition for intervention is procedurally proper. The designated record does not include plaintiffs’ supplemental petitions in this matter, referenced by the trial judge in its June 11, 2012 judgment. It is well settled that an intervenor takes the proceedings as he finds them and cannot substitute himself for one of the parties and urge matters that enlarge the issues or modify the basic procedural nature of the principal demand by way of intervention. Mike M. Marcello, Inc. v. Louisiana Gaming Control Bd., 04-0488 (La.App. 1 Cir. 5/6/05), 903 So.2d 545, 548. Further, this Court has held that La. C.C.P. art. 1091 does not allow an interve-nor to add new parties to the suit by way of the intervention. Wallace v. Nathan, 96-119 (La.App. 5 Cir. 7/30/96), 678 So.2d 595, 598. The reason why the intervenor's rights are so limited is because he always has his own remedy by a separate action to inject new issues. IberiaBank v. Live Oak Circle Dev., L.L.C., 12-1636 (La.App. 1 Cir. 5/13/13), 118 So.2d 27, 32.
      Plaintiffs’ original petition, provided in this designated record, names only three defendants and does not seek the same relief sought by Maclean in his petition for intervention, i.e., to have the alleged 1996 settlement agreement declared void. Considering only the designated record on appeal, Maclean’s petition for intervention appears to add several new parties-defendants and raises new claims based on facts not originally pled by plaintiffs in their original petition in this record. Accordingly, considering only the designated record before us, we cannot determine if Maclean’s petition for intervention was procedurally proper.

      . See also Downs v. R.T.S. Sec., Inc., 95-835 (La.App. 3 Cir. 1/31/96), 670 So.2d 434, 439, writ denied, 96-1325 (La.9/13/96), 679 So.2d 104, citing Ubosi v. Sowela Technical Institute, 584 So.2d 340 (La.App. 3 Cir.), writ denied, 589 So.2d 1075 (La.1991) (which found that "[wjhile Article 934 does not explicitly say 'with prejudice,’ the peremptory exceptions are designed to preclude a right of action.”)

      . La. R.S. 13:4207 provides:
      If oral reasons for judgment are not rendered in open court and the matter taken under advisement, the district judges and judges of the city courts shall render a written judgment within thirty days from the time the cases are submitted for their decision. All motions or applications for a new trial and all orders of appeal shall be passed upon by judges of the city court within three days from the time such motions or applications for new trial or orders of appeal are submitted to them for their decision and by district court judges within seven days from the time such motions or applications for a new trial or orders of appeal are submitted to them for their decision; but by the written consent of the attorneys representing both sides, filed in the records or spread upon the minutes, the time herein granted may be extended for a further period of ten days, but no longer.

      . Maclean also complains that he is an indispensable party in this litigation. On the designated record before us, which does not include plaintiffs’ amended petitions, we are unable to determine if Maclean is in fact an indispensable party to the underlying action. The failure to join a party to an action may be pleaded in the peremptory exception, or may be noticed by the trial or appellate court on its own motion. La. C.C.P. art. 641; see also Frey v. American Quarter Horse Ass’n, 95-157 (La.App. 5 Cir. 7/25/95), 659 So.2d 849. Therefore, the parties, or the trial judge on his own motion, may raise this issue in the trial court. On the designated record before us, however, we are unable to make this determination.


author: COOKS, Judge.

text:
    Jacintiea DEVILLE v. Donald ROBINSON, Sr., St. Landry Community Action, Donald Robinson, Sr., in His Personal Capacity.
    No. 13-832.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 26, 2014.

      Harold D. Register, Jr., Lafayette, LA, for Plaintiff/Appellant, Jacintiea Deville.
    Earl B. Taylor, St. Landry Parish D.A., David Lance Pitre, Eunice, LA, for Defendant/Appellee, St. Landry Parish Community Agency.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

li>On February 13, 2009, Plaintiff, Jacin-tiea Deville, filed a Petition for Damages alleging she suffered cruel and unjust treatment at the hands of Mr. Donald Robinson, Sr., who was the Executive Director of the St. Landry Parish Community Action Agency (hereafter CAA). Plaintiff alleged entitlement to relief for mental anguish and emotional distress suffered.

On November 15, 2010, Plaintiff amended her petition alleging Mr. Robinson committed an intentional tort against her and that, under La.Civ.Code art. 2520, CAA is ■vicariously liable for any damages Plaintiff suffered at the hands of Mr. Robinson.

Plaintiff was hired by CAA on July 22, 2003. She was appointed to the position of Assistant EAP/Housing Manager on October 30, 2003. On May 24, 2004, Plaintiff was promoted to the position of EAP/Housing Programs Manager. Plaintiffs job duties with CAA included being in charge of certain programs that received grants from the federal government. In accordance with that, Plaintiff was in charge of submitting grant applications. The record established on April 21, 2008, Plaintiff failed to timely apply for a USDA Grant Application as per her job description. It was testified that the missed application cost CAA anywhere from $70,000 to $150,000 in grant money.

On April 28, 2008, the CAA’s Advisory Board adopted a motion to create a new position of Housing Services Specialist, reduce the responsibilities and compensation of the current Energy/Housing Programs Manager (Plaintiffs position). The Advisory Board in effect abolished Plaintiffs position, and transferred all duties of the position to other departments. The following day, Mr. Robinson issued a written “Administrative Directives” form to Plaintiff setting forth that her “EAP/Housing Programs Manager’s position had been eliminated | ^immediately, and your salary will be reduced, based upon reduced responsibilities.”

Pursuant to that, Plaintiffs position was abolished and she was placed as a housing worker at a pay rate of $8.00 per hour with the opportunity to apply for a new position as Housing Services Specialist. Plaintiff continued working for CAA through June 1, 2008. Although she was not terminated, and Plaintiff maintains she did not quit or resign, that was the last date she worked for CAA.

Plaintiff initially filed a Workers’ Compensation claim on October 15, 2008, which was subsequently dismissed. She then filed the present matter seeking damages on February 13, 2009. A bench trial was held beginning on April 9, 2013.

Plaintiff presented her case over a three-day period. She testified after informing Mr. Robinson of the missed deadline, his attitude toward her changed and the cruel treatment ensued. She testified Mr. Robinson had an open door policy toward her which changed after the missed grant deadline and he became unapproachable. This, Plaintiff alleged, resulted in her inability to do her work and led to several anxiety attacks. She also maintained she was assigned to another program as punishment for the missed grant application.

Plaintiff further testified she understood there would be repercussions due to the missed grant application. She testified the repercussions she suffered were as follows: (1) She was demoted without being given notice, but was instructed to train Shelly Arnaud in some of the duties she was performing; (2) She was to report to Ms. Margaret James and turn in a time sheet to Ms. James; (3) She was no longer invited to the managers’ meetings; (4) On May 1, 2008, files were removed from her office and a note was posted on her office door that the door was to remain open at all times; (5) On June 1, 2008, her computer was disconnected; and (6) The last paycheck she received was for pay at an hourly rate of $8.00 rather |4than her previous hourly rate of $12.00. In some of her testimony (and in her brief to this Court), Plaintiff attributes these actions solely to Mr. Robinson. However, Plaintiff acknowledged on cross-examination that she could not say who placed the note on her door and disconnected her computer, but presumed it was Mr. Robinson.

As to Plaintiffs allegations that she was not given notice of her job demotion, the evidence established Plaintiff received notice of her job position being abolished on April 29, 2008, the day after a meeting of CAA’s Advisory Board, when Mr. Robinson issued to her an Administrative Directives form setting forth the Advisory board’s action. Likewise, it was stated that Plaintiffs hourly rate was reduced because her position was abolished and she was transferred to another position.

Concerning the files being removed from Plaintiffs office, there was testimony that there was an audit of these files that led to the discovery that many of the files were incomplete and others had original documents in them, such as social security cards, and should not have been retained.

Ms. James testified she was solely responsible for posting the note requesting Plaintiff keep her office door open. Ms. James stated she did this because Plaintiff was now under her supervision and she wanted the door to remain open. All other employees under her supervision were in an open area and Ms. James stated she wanted Plaintiff to be in a similar situation as other co-employees.

As to the computer being disconnected, it was testified this was done on June 1, 2008. This was the last date Plaintiff worked in that position. As she testified, she left on that date and did not return. Testimony was given that the computer was removed and two new computers were placed in that department and in that office shortly thereafter.

| .^Following the presentation of Plaintiffs case, Defendants moved for a Motion for Involuntary Dismissal pursuant to La. Code Civ.P. art. 1672(B). Defendants contended that upon the facts and law presented, Plaintiff had shown no right to relief. After a recess, the trial court granted the Involuntary Dismissal, setting forth oral reasons for judgment and concluding “the evidence presented does not afford the plaintiff, under the law, a right to the relief she seeks.” Plaintiff has appealed the judgment, contending “the trial court erred in granting the defendant’s motion for involuntary dismissal.”

ANALYSIS

Louisiana Code of Civil Procedure article 1672(B) provides for a motion for involuntary dismissal. That article states:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

A trial court is afforded much discretion in deciding a motion for involuntary dismissal. Koonce v. Dousay, 06-1498 (La.App. 3 Cir. 3/7/07), 952 So.2d 893. This vast discretion in granting a motion for involuntary dismissal is reviewed under the manifest error standard. Guidry v. City of Rayne Police Dep’t, 09-664 (La.App. 3 Cir. 12/9/09), 26 So.3d 900.

In order to recover for intentional infliction of emotional distress, a plaintiff must establish “(1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.” White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991). The court reviewed the | (¡elements of intentional infliction of emotional distress, explaining: “The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Id at 1209. Conduct that is simply tortious or illegal does not rise to the level of extreme and outrageous. Nicholas v. Allstate Ins. Co., 99-2522 (La.8/31/00), 765 So.2d 1017. Accordingly, a defendant cannot be held liable for “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” White, 585 So.2d at 1209. Rather, “[t]he distress suffered must be such that no reasonable person could be expected to endure it.” Id. at 1210.

Louisiana’s jurisprudence has limited the cause of action for intentional infliction of emotional distress in a workplace setting to cases which involve a pattern of deliberate, repeated harassment over a period of time. Nicholas, 765 So.2d 1017. Moreover, the employer’s conduct must be intended or calculated to cause severe emotional distress, not just some lesser degree of fright, humiliation, embarrassment or worry. Id.

As to whether the conduct of Mr. Robinson was “extreme and outrageous,” the trial court specifically found: “the evidence establishes that any actions taken by Mr. Robinson did not rise to the level of being extreme and outrageous. Furthermore, this Court is not of the opinion that the distress suffered by [Plaintiff] is such that no reasonable person could be expected to endure it.” The trial court noted there was testimony by the Plaintiff herself that she “had other anxiety attacks through the years. I think the testimony was even at the level of two or three a month due to the pressure of her job, and this was from 2004 on and not necessarily subsequent to April 22, 2008.”

In brief, Plaintiff contends Mr. Robinson himself was responsible for reducing her pay, abolishing her position without prior notice, submitting negative employee performance evaluations, disconnecting her office computer and |7removing files from her office. The trial court addressed these allegations and noted many of the repercussions Plaintiff claimed to endure were not attributable to the actions of Mr. Robinson. Ms. James testified she was responsible for the posting of the note of Plaintiffs office door. The abolishment of Plaintiffs job was made by CAA’s Advisory Board, notice of which Plaintiff did receive, and which resulted in Plaintiffs pay cut. Moreover, the trial court noted in its oral reasons for judgment that Plaintiffs job evaluations had been on a steady decline for years. In 2003, Plaintiff received an overall “Good” rating on her “Employee Performance Evaluation.” In 2006, Plaintiff was given an overall “Fair” rating on her evaluation, but in both 2007 and 2008 received an “Unsatisfactory” rating. Thus, the decline in her evaluations began occurring years prior to the missed grant deadline.

The trial court also found Mr. Robinson did not have specific intent to cause Plaintiff severe emotional distress or that it was substantially certain to result from his conduct. The trial court determined there was no direct evidence that Mr. Robinson intended to cause Plaintiff emotional distress, stating: “[E]ven if Mr. Robinson intended to place [Plaintiff] under added pressure to perform duties because of the issue with the deadline, that the desire to place one under added pressure for failing to perform as expected in the workplace, is not the same as specifically intending to cause [Plaintiff] severe emotional distress.”

After a review of the record, we cannot say the trial court manifestly erred in concluding upon the facts and law presented by Plaintiff, she did not show any right to relief. The law is clear in order to recover on a claim for intentional infliction of emotional distress, the conduct complained of “must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized | scommunity.” White, at 1209. The trial court found Plaintiff did not meet this burden and we find no error in that finding.

Lastly, we note Plaintiff, in her brief, alleges Mr. Robinson created a “hostile work environment” to ensure she would quit her employment with CAA. This issue was never raised by Plaintiff below. As a general rule, appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129 (citing Segura v. Frank, 93-1271 (La.1/14/94), 630 So.2d 714, cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994)). Accordingly, we will not consider this issue on appeal.

DECREE

For the foregoing reasons, the judgment of the trial court granting Defendants’ Motion for Involuntary Dismissal. Costs of this appeal are assessed against Plaintiff-Appellant, Jacintiea Deville.

AFFIRMED.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Tracy L. COMMON.
    No. 13-KA-488.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.
    Rehearing Denied March 27, 2014.
    Rehearing Denied April 15, 2014.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Matthew Caplan, Seth W. Shute, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Frank G. Desalvo, Brigid E. Collins, Attorneys at Law, New Orleans, Louisiana, For DefendanfyAppellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERTA. CHAISSON, and ROBERT M. MURPHY.
   MARC E. JOHNSON, Judge.

12This is Defendant, Tracy Common’s, second appeal. In his first appeal, Defendant challenged his underlying conviction for possession of MDMA and his multiple offender adjudication. We affirmed his conviction for possession of MDMA, but vacated his multiple offender adjudication and enhanced sentence. We also vacated Defendant’s original sentence and remanded the matter for resentencing. State v. Common, 10-996 (La.App. 5 Cir. 11/15/11); 78 So.3d 237, writ denied, 11-2779 (La.9/28/12); 98 So.3d 825.

On remand, Defendant was resentenced to seven years imprisonment at hard labor. Additionally, on December 15, 2011, the State filed a new multiple offender bill of information alleging Defendant to be a third felony offender. The State dismissed the multiple bill on February 15, 2013, but filed a new one on the same date alleging Defendant to be a second felony offender. Defendant stipulated to the allegations in the multiple bill and was adjudicated a second felony offender. 13The trial court vacated Defendant’s original seven-year sentence and imposed an enhanced sentence of ten years imprisonment at hard labor.

In this second appeal, Defendant challenges his multiple offender adjudication. He first argues that the State improperly used a prior conviction for an offense that is now a misdemeanor as the predicate offense for the multiple bill.

The multiple bill was based on Defendant’s prior conviction for theft between $100.00 and $500.00, a violation of La. R.S. 14:67, in case number 96-1247 in the 24th Judicial District Court. At the time Defendant committed the theft in October 1995, La. R.S. 14:67(B)(2) provided that if a misappropriation or taking amounted to a value of $100.00 or more, but less than a value of $500.00, the offender was to be imprisoned, with or without hard labor, for not more than two years and/or fined not more than $2,000.00. Thus, it was a felony.

In 1999, the Louisiana Legislature amended La. R.S. 14:67(B) and made theft of anything valued under $300 a misdemeanor. In 2010, the legislature again amended La. R.S. 14:67(B) and made theft of anything valued under $500 a misdemeanor, unless the offender had two previous theft convictions in which case the offense was a felony. Thus, at the time Defendant was multiple billed, his predicate conviction had been reclassified as a misdemeanor.

The Louisiana Supreme Court has consistently held that “for multiple offender purposes, an offense which is subsequently reduced to a misdemeanor retains its felony status as of the time of commission[,]” and has rejected the argument that a felony which has been reduced to a misdemeanor cannot serve to enhance a sentence. State v. Blackwell, 377 So.2d 110, 112 (La.1979); See also, State v. Jones, 11-649 (La.App. 4 Cir. 10/19/11); 76 So.3d 608, 615, writ denied, 11-2545 (La.3/30/12); 85 So.3d 116. Thus, we find no merit to Defendant’s argument.

Defendant next contends that he was not properly advised of his rights under La. R.S. 15:529.1. While he admits that he was advised of some of his rights, he specifically claims that he was not advised that he had 15 days to file objections to the multiple bill and was not given the opportunity to avail himself of the 15 days. The State responds that Defendant did not need to be advised of the 15 days under La. R.S. 15:529.1(D)(l)(a) because he admitted to the allegations in the multiple bill. We agree.

Louisiana Revised Statute 15:529.1(D)(l)(a) provides in part:

Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true. If he denies the allegation of the information or refuses to answer or remains silent, his plea or the fact of his silence shall be entered on the record and he shall be given fifteen days to file particular objections to the information, as provided in Subparagraph (b) of this Paragraph.

(Emphasis added.)

On the same date that the multiple bill was filed, Defendant admitted the allegations of the multiple bill, which alleged that he was a second felony offender. Defendant never denied the allegations, refused to answer, or remained silent in regards to the multiple bill. As such, the 15-day time period to file objections to the multiple bill was inapplicable, and the trial court was not required to advise Defendant of the 15 days.

Under La. R.S. 15:529.1, a defendant must be advised of the specific allegations contained in the multiple bill and the right to a formal hearing. Implicit in this requirement is that the defendant be advised of his constitutional right to remain silent. State v. Walker, 01-348 (La.App. 5 Cir. 8/28/01); 795 So.2d 459, 462-63, writ denied, 01-2788 (La.10/4/02); 826 So.2d 1115. Because the record shows that Defendant was advised of the allegations contained in the multiple bill, his right to a hearing and his right to remain silent, we find Defendant was properly advised of his rights under La. R.S. 15:529.1.

In Defendant’s first appeal, we conducted an error patent review of the record in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990). Accordingly, in this second appeal, we have limited our error patent review to those proceedings on remand. State v. Lobo, 12-271 (La.App. 5 Cir. 12/18/12); 106 So.3d 1187, 1194, writ denied, 13-151 (La.6/21/13); 118 So.3d 409.

We note that while the transcript reflects that the trial court vacated Defendant’s original sentence prior to imposing the enhanced sentence as required by La. R.S. 15:529.1(D)(3), the multiple bill commitment does not so reflect. Accordingly, we remand the matter for correction of the multiple bill commitment to accurately reflect that Defendant’s original sentence was vacated. After correction, the Clerk of Court is ordered to transmit the original of the multiple bill commitment to the officer in charge of the institution to which Defendant has been sentenced and the Department of 1 Correction’s Legal Department. See La.C.Cr.P. art. 892(B)(2); State ex rel. Roland v. State, 06-244 (La.9/15/06); 937 So.2d 846 (per curiam).

DECREE

For the foregoing reasons, Defendant’s multiple offender adjudication and enhanced sentence are affirmed. This case is remanded for correction of the multiple bill commitment.

MULTIPLE OFFENDER ADJUDICATION AND ENHANCED SENTENCE AFFIRMED; COMMITMENT REMANDED FOR CORRECTION

      . The law in effect at the time of the commission of the offense is determinative of the applicable penalty. State v. Sugasti, 01-3407 (La.6/21/02); 820 So.2d 518, 520.

      . A felony is any crime for which an offender may be sentenced to death or imprisonment at hard labor. Any crime other than a felony is a misdemeanor. La. R.S. 14:2(A)(4).

      . See also La. R.S. 24:171, which provides, “[t]he repeal of any law shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability, civil or criminal, incurred under such law unless the repealing act expressly so provides, and such law shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.”

      . Generally, the transcript prevails where there is an inconsistency between the minute entry and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983).


author: MURPHY, Judge.

text:
    STATE of Louisiana v. Erlich Joel ROSALES.
    No. 13-KA-731.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 26, 2014.
    Rehearing Denied March 27, 2014.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Matthew Caplan, Emily E. Booth, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Robert J. Pastor, Brittany L. Lee, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   MURPHY, Judge.

| gDefendant Erlich Joel Rosales appeals his conviction for driving while intoxicated (DWI), third offense, pursuant to a Crosby guilty plea, which preserved his right to contest the trial court’s denial of his motion to quash his first predicate DWI conviction. For the reasons that follow, we affirm his conviction and sentence as amended for third offense DWI and remand the matter to the trial court for correction of an error patent as noted herein.

FACTS AND PROCEDURAL HISTORY

On June 17, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Erlich Joel Rosales, with DWI, third offense, in violation of La. R.S. 14:98(E). The bill of information in 24th JDC Case No. 10-8034 alleges that defendant had two prior convictions for DWI. The first predicate conviction alleged was on June 12, 2003, in case number F1436651 in First Parish Court, Division “B,” in Jefferson Parish. The second predicate conviction alleged was on March 3, 2009, in case number 539311 in the 29th Judicial District Court, Division “E,” in St. Charles Parish. Although defendant did not appear at the arraignment on June 30, 2010, a plea in absentia of not guilty was entered on his behalf.

Thereafter, on September 24, 2010, defendant filed a “Motion to Quash Predicates with Memorandum.” In that motion, defendant argued that he was a “non-national” with a limited understanding of the English language. He further argued that he did not have a translator present in either predicate proceeding and that he was not notified in either case “of the immigration consequences that the predicates would initialize.”

On September 29, 2010, a hearing was held on the motion to quash. On December 1, 2010, defendant’s motion to quash was granted, and the State orally moved for an appeal. On December 8, 2010, the State filed a 'written motion for appeal, which was granted on the same date. State v. Rosales, 11-674 at p. 3 (La.App. 5 Cir. 4/24/12), 94 So.3d 36, 39. On appeal, the State asserted that the trial judge erroneously granted the motion to quash. This Court reversed the trial judge’s granting of the motion to quash, finding that the two predicate convictions were not constitutionally infirm and both could be used for enhancement purposes. Rosales, 11-674 at 21, 94 So.3d at 49.

On February 13, 2013, defendant filed another motion to quash predicate number one raising an additional ground. The State subsequently filed an opposition to the motion to quash. On March 25, 2013, defendant filed a reply to the State’s opposition. On April 1, 2013, the trial judge denied the motion to quash after a hearing. Defendant filed a writ application with this Court on April 16, 2013, challenging the trial judge’s ruling. On May 8, 2013, this Court denied the writ application. State v. Rosales, 13-K-321 (La.App. 5 Cir. 5/8/13) (unpublished writ disposition).

On May 29, 2013, defendant entered a plea of no contest under State v. Crosby, to third offense DWI and was sentenced to imprisonment at hard labor for five years, with one year of the sentence to be served without benefit of parole, probation, or suspension of sentence. The trial judge ordered four years of the sentence to be suspended, and he placed defendant on active probation for five years. He also ordered that defendant pay a fine of $2,000.00.

On June 11, 2013, defendant filed a timely motion for appeal that was granted.

LAW AND DISCUSSION

In related assignments of error one and two, defendant contends that the trial court erred in denying defendant’s motion to quash predicate number one where, defendant, a non-native speaker, was denied his fundamental right to a sworn-in interpreter, resulting in a violation of his Boy-kin rights; and that the trial court erred in denying defendant’s motion to quash predicate number one where defendant was denied his fundamental right to an interpreter because the interpreter did not communicate to him the contents of the Boykin colloquy. As an additional ground, he argues that his lack of counsel prejudiced his rights.

The State responds that this Court has already considered and denied defendant’s arguments regarding the absence of a sworn-in interpreter and the interpreter’s failure to communicate to him the Boykin colloquy in case number 13-K-321, and that his conviction, therefore, should be affirmed based on the “law of the case” doctrine. The State notes that defendant has not presented any new | ¡-.evidence to indicate that this Court’s previous ruling was patently erroneous or produced unjust results. Additionally, the State asserts that defendant’s new arguments regarding his lack of counsel in predicate number one were not raised in the court below and are therefore waived. Alternatively, the State submits that defendant has failed to demonstrate that the trial judge’s ruling was erroneous.

In his reply brief, defendant responds that the “law of the case” doctrine is inapplicable to this appeal and that his arguments should be subject to de novo review. He contends that although he did not proceed to trial, his situation has been greatly altered since the denial of his writ application in that he has now been convicted of third offense DWI. Defendant further contends that in light of his no contest plea, this Court’s prior ruling produced an unjust result. Additionally, defendant asserts that he raised the issue regarding his lack of counsel in his reply to the State’s opposition to his motion to quash.

The record reflects that on February 13, 2013, defendant filed his second motion to quash entitled, “Motion to Quash Predicate # 1,” wherein he raised the same two issues that he now raises on appeal. On April 1, 2013, the trial judge denied the motion after a hearing. Defendant filed a writ application with this Court on April 16, 2013, challenging the trial judge’s ruling. On May 8, 2013, this Court denied the writ application, stating in pertinent part:

After reviewing the writ application, exhibits, and the applicable law, we find that defendant has failed to show any prejudice resulting from the failure to swear in the interpreter. Defendant does not challenge the accuracy of the translations by identifying potentially material mistakes or irregularities in the interpretation, nor does he claim that the interpreter engaged in unlawful conduct; rather, defendant merely alleges that the interpreter was not sworn in. This Court has already found that after reviewing the transcripts of the predicate proceedings, there was no indication that defendant did not understand the proceedings, and the transcripts did not reflect any demonstration of difficulty in understanding English or any of the proceedings. Rosales, 11-674 at 19, 94 So.3d at 48. (Emphasis added).
| ^Defendant also argues in this writ application that the first predicate conviction must be quashed because the record does not demonstrate that the interpreter communicated his Boykin rights to him. He contends that there was nothing to indicate Mr. Reyes actually functioned as a translator for him as required under La.C.Cr.P. art. 25.1(A).
Defendant has not attached a transcript or any other exhibits to his writ application which support his contention that the record does not demonstrate that the interpreter communicated his Boykin rights to him. Further, this Court has previously found that defendant was informed of his Boykin rights and waived them, that the transcripts did not show any difficulty in understanding English or any of the proceedings, and that the two predicate convictions were not constitutionally infirm and could be used for enhancement purposes. Rosales, 11-674 at 14, 21, 94 So.3d at 45, 49.
In light of the foregoing, we find that the trial judge did not err by denying the motion to quash. Accordingly, this writ application is denied.

State v. Rosales, 13-K-321 (La.App. 5 Cir. 5/8/13) (unpublished writ disposition).

The prior denial of supervisory writs does not preclude reconsideration of an issue on appeal, nor does it prevent the appellate court from reaching a different conclusion. State v. Castleberry, 98-1388, p. 5 (La.4/13/99), 758 So.2d 749, 755, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999). The “law of the case” doctrine as applied to writs and appeals is discretionary and in this case need not even be reached.

A trial court’s qualification of an interpreter will not be overturned absent manifest error. Thongsavanh v. Schexnayder, 09-1462 (La.App. 1 Cir. 5/7/10), 40 So.3d 989, writ denied, 10-1295 (La.9/24/10), 45 So.3d 1074.

The Louisiana Code of Evidence subjects interpreters to the provisions of the evidence code relating to experts. La. C.E. art. 604. The Code further requires that expert testimony assist the trier of fact. La. C.E. art. 702. A defendant, who can understand and express himself in English, renders an interpreter gratuitous as the interpreter cannot assist the judge in understanding the evidence or to 17determine a fact at issue. One of the goals of the evidentiary articles is to secure efficiency in administration of the law. La. C.E. art. 102. An interpreter for an English-speaking defendant would be the height of inefficiency.

This practical element of necessity is found in the plain language of related statutes. For instance, La. R.S. 15:270, last amended in 1989, relating to interpreters for deaf or severely hearing-impaired persons, begins thusly: (B)(1) “In any case where an interpreter is required to be appointed by the court under this Section .... ” (Emphasis added). A parallel civil provision, last amended in 1995, contains similar language: “[i]n any case in which an interpreter is required....” La. C.C.P. art. 192.1 (Emphasis added).

In the ruling at issue, defendant contends that the trial court erred in failing to quash predicate number one entered into in the absence of a sworn interpreter in violation of his fundamental rights. A review of the transcript of the first predicate conviction indicates that defendant was answering questions in English and was therefore proficient in the English language. Simply put, an interpreter here was not necessary to defendant’s understanding of the proceeding. Whether the unnecessary interpreter took an oath is moot as to defendant’s understanding, and defendant is therefore unable to show any infringement of his rights. Whether the | ^interpreter was sworn or unsworn, the trial court did not abuse its discretion in accepting defendant’s plea in predicate conviction number one.

It is noted that in this second appeal, defendant makes an additional argument, namely, that his lack of counsel in predicate number one prejudiced his rights. The State contends that this is a newly-presented issue that should not be considered on appeal. However, defendant alludes to this issue in his reply to the State’s opposition to his motion to quash, wherein he argued that his waiver of counsel was meaningless absent proper translation. The issue of whether defendant’s waiver of counsel was valid, although not raised previously, was addressed by this Court in the State’s first appeal. After an extensive discussion, this Court found that the State met its burden of showing the knowing, intelligent, and voluntary nature of the waiver of counsel under the totality of the circumstances. State v. Rosales, 11-674 at 16, 94 So.3d at 46.

On review of defendant’s first predicate conviction, and not relying on the law of the case doctrine, we find that defendant was informed of his Boykin rights and waived them. The State met its burden of showing the knowing, intentional, and voluntary waiver of counsel under the totality of circumstances. Based on the foregoing discussion of defendant’s understanding and his English language proficiency, we find that defendant has failed to produce evidence showing infringement of his rights in taking the predicate plea.

In light of the foregoing, we find the trial court did not err in denying defendant’s motion to quash predicate number one. Accordingly, we affirm defendant’s conviction.

\ .ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals one error patent that requires correction.

The trial judge sentenced defendant to five years imprisonment at hard labor, with all but the first year suspended and with that first year to be served without benefit of parole, probation, or suspension of sentence. The trial judge also ordered that upon his release, defendant would be placed on five years probation, with special conditions. However, the sentencing provision for third offense DWI states that if any portion of a defendant’s sentence is suspended, he shall be placed on supervised probation for a period of time equal to the remainder of the sentence of imprisonment, which probation shall commence on the day after the offender’s release from custody. See La. R.S. 14:98(D)(l)(a). Therefore, the imposed five-year probation term after defendant’s release from custody exceeds the statutory authority by one year.

An appellate court is authorized to correct an illegal sentence pursuant to La. C.Cr.P. art. 882(A), when the sentence does not involve the exercise of sentencing discretion by the trial court. See State v. Haynes, 04-1893 (La.12/10/04), 889 So.2d 224 (per curiam). The correction of this error does not involve sentencing discretion, as defendant’s term of probation is mandatory based upon the term of his suspended sentence. We therefore amend defendant’s sentence to reflect that his term of probation is four years after his release from custody, with the same special conditions imposed by the trial court. See State v. Carpenter, 12-1977, 2013 WL 2484672 at *4 (La.App. 1 Cir. 6/7/13) (unpublished opinion). The matter is remanded to the trial court for correction of an error patent as noted herein, and the Clerk of Court for 24th Judicial District Court is ordered to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and to the Department of Corrections’ Legal Department.

DECREE

For the reasons assigned herein, we affirm defendant’s conviction and sentenced as amended for third offense DWI and remand the matter for correction of the commitment consistent with the amendment of sentence.

CONVICTION AND SENTENCE AFFIRMED AS AMENDED; REMANDED FOR CORRECTION OF COMMITMENT.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . The limited facts were set forth in defendant’s first appeal. State v. Rosales, 11-674 (La.App. 5 Cir. 4/24/2012), 94 So.3d 36.

      . Without objecting to his lack of presence and proceeding, defendant waived any irregularity. See State v. Duplechin, 05-726 (La.App. 5 Cir. 1/31/06), 922 So.2d 655, writ denied, 06-475 (La.9/22/06), 937 So.2d 378.

      . Snpranotel.

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

      . After the 2003 hearing at issue, the Legislature enacted La.C.Cr.P. art. 25.1, pertaining to the appointment of an interpreter for non-English-speaking persons. The article provides in pertinent part:
      (A). If a non-English-speaking person who is a principal party in interest or a witness in a proceeding before the court has requested an interpreter, a judge shall appoint, after consultation with the non-English-speaking person or his attorney, a competent interpreter to interpret or to translate the proceedings to him and to interpret or translate his testimony.
      Acts 2008, No. 882, § 2. This article requires the appointment of an interpreter upon request, but it also requires that the requesting party not be an English speaker. This later article mirrors the standard already in place at the time of defendant’s first predicate conviction in 2003.

      . Although mooted by his understanding of English, defendant additionally did not contemporaneously object to his lack of a sworn interpreter. State v. Nguyen, 10-483 (La.App. 3 Cir. 2/2/11), 55 So.3d 976, writ denied, 11-285 (La.6/17/11), 63 So.3d 1038 (based on contemporaneous objection rule, La. C.E. art. 103(A), a party failing to object to appointment of interpreter at trial may not challenge appointment on appeal).

      . It is noted that this case is published on the First Circuit’s website and, therefore, may be cited as authority despite the fact it is not designated for publication. See State in the Interest of S.L., 11-883, p. 2 (La.App. 5 Cir. 4/24/12), 94 So.3d 822, 827 n. 2; La. C.C.P. art. 2168.


author: AMY, Judge.

text:
    Trent HARVEY v. Kelly (Singleton) HARVEY.
    No. 13-81.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2013.

      Donald W. Martin, Kingswood, TX, E. Grey Burnes Talley, Alexandria, LA, for Defendant/Appellant, Kelly (Singleton) Harvey.
    Scott Westerchil, Leesville, LA, for Plaintiff/Appellee, Trent Harvey.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

| fin this custody dispute, the father alleged a change in circumstances and sought to change custody from shared custody with both parents having co-domiciliary status. After a trial, the trial court found that there was a change in circumstances that warranted a change in custody and ordered that the parents have joint custody with the father having domiciliary parent status. The mother appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Trent Harvey, and the defendant, Kelly Grady, have one child together, Terryn Harvey. Mr. Harvey and Mrs. Grady separated in 2007, soon after Terryn’s birth. Mrs. Grady took Terryn with her to Texas. As germane to this appeal, the parties eventually entered into a stipulated custody agreement that provided for joint custody with Mrs. Grady having domiciliary custody and provided a visitation schedule. Mr. Harvey sought a change in custody in 2009, which Mrs. Grady opposed. After a hearing, the trial court found that both Mr. Harvey and Mrs. Grady were good parents who have good homes, love their child, and pose no danger to her. However, the trial court found that the “whole factual scenario of this case is replete with a lack of communication by both parties” and changed custody to shared custody with co-domiciliary status and ordered that each parent have physical custody of Terryn on a two-week/ two-week basis. Mrs. Grady appealed, and in Harvey v. Harvey, 10-1338 (La.App. 3 Cir. 3/9/11), 56 So.3d 467, writ denied, 11-719 (La.4/29/11), 62 So.3d 117, a panel of this court affirmed the custody determination but vacated the trial court’s finding of contempt against Mrs. Grady.

laIn 2011, Mr. Harvey filed another rule to modify custody. Therein, Mr. Harvey requested that the trial court grant him sole custody of Terryn with Mrs. Grady having visitation or, in the alternative, joint custody with Mr. Harvey being designated as the domiciliary parent. After a trial, the trial court found that, because Terryn was approaching school-age, there was a material change in circumstances. Further, although the trial court noted that it was more probable that Mrs. Grady’s home was “perhaps the most stable considering the family unit and Terryn’s sister,” that Mrs. Grady’s conduct in responding to events since the modification of custody has continued to create problems, rather than facilitate a close and continuing relationship between Mr. Harvey and Terryn. Therefore, the trial court found that it was in Terryn’s best interest that the parties have joint custody, with Mr. Harvey being designated as the domiciliary parent and Mrs. Grady having “liberal physical custody.”

Mrs. Grady appeals, asserting as error that:

1) It was error for the Trial Court to make Trent Harvey the domiciliary parent when it found Kelly Grady’s home to be the most stable environment.
2) It was error for the Trial Court to use an award of custody to punish the domiciliary parent by changing the domiciliary parent, rather than to place the child based solely on the best interest of the child.

Discussion

Change of Custody

In reviewing custody determinations, the trial court’s decision is to be afforded great deference on appeal and will not be disturbed absent an abuse of ^discretion. Martin v. Martin, 11-1496 (La.App. 3 Cir. 5/16/12), 89 So.3d 526. Louisiana Civil Code Article 131 directs that “[i]n a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.” In this vein, custody cases are to be decided upon their own particular facts and circumstances, keeping in mind that the paramount goal is to do what is in the best interest of the minor child. Newcomb v. Newcomb, 01-1530 (La.App. 3 Cir. 3/6/02), 810 So.2d 1269 (quoting Hebert v. Blanchard, 97-550 (La.App. 3 Cir. 10/29/97), 702 So.2d 1102).

In cases where the trial court has previously entered a considered decree of permanent custody, “the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.” Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

A review of the record indicates that the trial court had previously awarded the parties shared custody with co-domiciliary status, with each parent enjoying two weeks of physical custody. There was testimony that the distance between the parties’ respective residences is several hours. The record further indicates that Terryn is approaching school age and that, because of the distance between the parties, this physical custody schedule is no longer feasible. Mr. Harvey testified that he had investigated a private school in Leesville and that he was informed that Terryn could not attend based on his current physical custody schedule. The trial court found that, based on these circumstances, the determination of custody must be revisited. Neither party contests this issue, and we find that these circumstances |4meet the heightened standard for review of a considered custody decree delineated in Bergeron. See Silbernagel v. Silbenagel, 10-267 (La.App. 5 Cir. 5/10/11), 65 So.3d 724.

Application of Best Interest Factors

Having found that the Bergeron standard was met, the trial court then had to determine what was in Terryn’s best interest. See Merriman v. Merriman, 05-1435 (La.App. 3 Cir. 5/3/06), 930 So.2d 235. In so doing, “[t]he court shall consider all relevant factors in determining the best interest of the child,” including:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
|s(12) The responsibility for the care and rearing of the child previously exercised by each party.

La.Civ.Code art. 134.

In its reasons for judgment, the trial court opined that:

The Court, in considering the 12 factors of Article 134 of the Civil Code, finds that both these parents are good parents who genuinely love their child and the child loves them. The Court concludes that it is more probable that the family home with Kelly is perhaps the most stable environment considering the family unit and Terryn’s sister. That is not to say, however, that a single parent cannot provide a stable home for a child. On the contrary, that is exceedingly common in our present day society.
The underlying principle of joint custody is that the child should enjoy the maximum contact with each parent which is possible under the circumstances. When this case started, Kelly [Grady] was the primary domiciliary parent with visitation to the father, Trent [Harvey], but things didn’t go very well. After this, in February 2011, the Court modified custody to co-domiciliary parents and a shared custody plan hoping things would get better. The Court concludes that Kelly’s conduct in responding to events since the modification of custody continues to create problems between her and Trent which tends to frustrate, rather than facilitate a close and continuing relationship between Terryn and her father. The Court, therefore, finds that it is in the best interest of Terryn that there be joint custody with the father, Trent Harvey, as the primary domiciliary parent, subject to liberal visitation with the mother, Kelly Grady.

One of Mrs. Grady’s assignments of error concerns the trial court’s judgment in light of its determination that Mrs. Grady’s home was “perhaps the most stable environment.” She complains that the trial court erred in determining that Mr. Harvey should be the domiciliary parent because of this finding.

We find no merit to Mrs. Grady’s contention in this regard. First, we note that:

The court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. The court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Moreover, the | ¿factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court.

Cooper v. Cooper, 43,244, p. 6 (La.App. 2 Cir. 3/12/08), 978 So.2d 1156, 1160 (citations omitted).

Our review of the record indicates that, although the trial court found that Mrs. Grady’s home was “perhaps the most stable environment,” it did not make a finding that Mr. Harvey’s home was an unstable environment. Of particular import, at the time of trial, both parents had had equal physical custody, as well as co-domiciliary status, for more than two years. The trial court heard evidence concerning Mr. Harvey and Mrs. Grady’s respective living situations, financial situation, and work obligations. There was testimony about the family members involved in Terryn’s life at both Mr. Harvey and Mrs. Grady’s houses, including grandparents, stepparents and half-sisters. The record supports a conclusion that Terryn has a positive relationship with her extended family. Further, the trial court heard evidence concerning Terryn’s daycare and educational situation in the parties’ respective care.

Additionally, the parties testified at length about their ability to communicate about Terryn’s needs and to mutually resolve issues concerning Terryn’s health and well-being. Much of the testimony revolved around Mr. Harvey’s efforts to have tubes placed in Terryn’s ears in order to alleviate her ongoing chronic ear infection problems. Other testimony concerned statements 17that Terryn made concerning the actions of her parents.

Based on our review of the record, we find no abuse of discretion in the trial court’s determination that Mr. Harvey-should be the domiciliary parent. The trial court was “not bound to give more weight to one factor over another[.]” Cooper, 978 So.2d at 1160. The record contains sufficient evidence to support a conclusion that both Mr. Harvey and Mrs. Grady’s homes and family environment would be appropriate for Terryn, and that Mr. Harvey and Mrs. Grady are both good parents to Terryn. Given these circumstances, the trial court chose to place more weight on the parties’ respective abilities to foster a close and continuing relationship with the other parent. We find no error in the trial court’s conclusion that Mrs. Grady’s actions in responding to issues has tended to create problems, rather than facilitate a close and continuing relationship between Terryn and Mr. Harvey.

Mrs. Grady’s assignment of error in this regard is without merit.

Change of Custody as a “Punishment”

Mrs. Grady also contends that the trial court erred in appointing Mr. Harvey as the domiciliary parent in order to “punish” her. In support of this argument, Mrs. Grady cites Fulco v. Fulco, 259 La. 1122, 254 So.2d 603, 606 (1971), for the proposition that “[t]he purpose of a custody determination is not to punish a parent for any [p]ast misconduct, it is rather to serve the best interests of the children of the marriage.”

|sWe find no merit to this contention. Although a custody decree may not be used as a tool to regulate human behavior, see Cleeton v. Cleeton, 383 So.2d 1231 (La.1979), our review of the record indicates that the trial court did not do so. Mrs. Grady points to the trial court’s determination that her reaction to events which occurred since the trial court changed the custody arrangement in 2010 tended to create problems rather than resolve them in support of her contention that the trial court appointed Mr. Harvey as the domiciliary parent in order to punish her or regulate her behavior. After carefully reviewing the record, we do not reach that conclusion. As previously discussed, the trial court considered the best interest factors delineated in La.Civ.Code art. 134, and determined that appointing Mr. Harvey as the domiciliary parent was in Ter-ryn’s best interest. Part of this determination was that Mrs. Grady’s responses to issues did not facilitate a close and continuing relationship between Terryn and Mr. Harvey. This is an appropriate determination to make under La.Civ.Code art. 134 and the trial court was entitled to make such a determination.

Mrs. Grady’s assignment of error in this regard is without merit.

DECREE

For the foregoing reasons, we affirm in all respects the judgment of the trial court signed on July 2, 2012, granting the parties, Trent Harvey and Kelly Grady, joint custody of Terryn Harvey, and designating Mr. Harvey as domiciliary parent. Costs of this appeal are assessed to the appellant, Kelly Grady.

AFFIRMED.

      . Kelly (Singleton) Harvey has remarried and is now known as Kelly Grady.

      . According to the record, Terryn has two younger half-siblings-Mr. Harvey's daughter, Tinsley, and Mrs. Grady’s daughter, Carly. We note that “Carly" is also spelled “Carlie” in the record.

      . Notes in Terryn’s medical records indicate several references, from both Terryn's Texas pediatrician as well as her Louisiana doctors, to the possibility of ear tubes starting in the late summer/early fall of 2009. According to the record, Mr. Harvey eventually obtained a referral and took Terryn to an ENT in Louisiana in August of 2010 and attempted to impress upon Mrs. Grady that the ENT felt that the surgery should be done "as soon as possible.” The record also indicates that Mrs. Grady attempted to obtain Terryn’s Louisiana medical records in late August and early September of 2010 so that Terryn’s Texas doctors could review them. The record indicates that tubes were placed in Terryn’s ears in May of 2011, more than six months after Terryn’s initial visit to the ENT.

      . According to Mrs. Grady, Teriyn stated that Mr. Harvey told her that he was going to shoot Mrs. Grady. According to Mr. Harvey, Terryn told him that a policeman came and put “bracelets” on Mrs. Grady and took her away. A psychologist retained by Mrs. Grady, Dr. Sally Thigpen, noted that when she was observing Terryn, Terryn told her a story about putting her finger in a possum’s mouth and that the possum was "nice.” Dr. Thig-pen opined that "Terryn has a very lively imagination and that she can create stories and that she is that — of that age.” Based in part on Dr. Thigpen’s observation, the trial court found that there was no danger.