author: JUDE G. GRAVOIS, Judge.

text:
    Antonio D. STEWART v. BOH BROS. CONSTRUCTION CO., L.L.C., ABC Insurance Company, and John Doe/Bob Doe.
    No. 13-CA-193.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.

      John W. Redmann, Edward L. Moreno, Patrick B. Sanders, Attorneys at Law, Me-tairie, LA, for Plaintiff/Appellant.
    Richard S. Vale, Eric E. Pope, Pamela Noya Molnar, Attorneys at Law, Metairie, LA, for David T. Butler, Jr., Attorney At Law, Baton Rouge, LA, Defendant/Appel-lee.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   JUDE G. GRAVOIS, Judge.

|sPIaintiff, Antonio Stewart, appeals a trial court judgment that found defendant, Boh Bros. Construction Company, L.L.C. (“Boh Bros.”), to be his statutory employer, thus limiting his remedy against Boh Bros, to workers’ compensation benefits, rather than potential tort recovery. Inter-venor, Lemic Insurance Company (“Lemic”), the workers’ compensation carrier of plaintiffs direct employer, Cabal Industries (“Cabal”), answered the appeal, also praying for reversal of the judgment and reinstatement of its intervention claim against Boh Bros.

On appeal, plaintiff argues that a contract that Boh Bros, entered into with Cabal, purporting to make Boh Bros, a statutory employer of Cabal’s direct employees, is unenforceable because Boh Bros, did not unconditionally accept, implicitly or explicitly, the obligations of a statutory employer, and therefore cannot obtain the benefit of tort immunity granted to a statutory employer. Plaintiff also argues that the contract purporting to make Boh Bros, plaintiffs statutory employer is unenforceable because the indemnity provision contained |4therein attempts to shield Boh Bros, from both tort liability and workers’ compensation liability, which is not only prohibited by La. R.S. 23:1033, but is also contrary to public policy. Lastly, plaintiff argues that he was not “performing any work or providing any services under [the Boh Bros./Cabal] agreement” at the time he was injured, which plaintiff alleges is required under the Boh Bros./Cabal contract at issue, and thus, Boh Bros, is not entitled to tort immunity.

For the following reasons, we find plaintiffs assignments of error to be without merit and accordingly affirm the judgment of the trial court finding Boh Bros, to be plaintiffs statutory employer. Correspondingly, Lemic’s answer to this appeal is also denied.

FACTS AND PROCEDURAL HISTORY

On March 25, 2005, the date of his injury, plaintiff was employed as a cement finisher with Cabal, a contractor who had entered into a subcontract with Boh Bros., the general contractor, to furnish labor for a federal project involving the refurbishing of runways at New Orleans International Airport. Plaintiff was injured while he was riding in the bed of a Cabal pickup truck while being transported from one Boh Bros, work location at the airport to another. While proceeding from one section of the runway to another, the pickup truck plaintiff was riding in was struck by another vehicle owned by Boh Bros, and being driven by a Boh Bros, employee. Immediately prior to getting in the bed of the truck, plaintiff had finished eating lunch and had been directed by one of his supervisors to load equipment into the bed of the pickup truck for later use by him and his co-workers at a Boh Bros, work location on the runway. As the Cabal pickup truck was proceeding to the Boh Bros, work location, it was struck on the front corner by the Boh Bros, vehicle.

[^Plaintiff filed suit against Boh Bros, in 2006, alleging therein that he sustained injuries in the accident for which he received medical treatment over an extended period of time. Prior to filing suit against Boh Bros., plaintiff made a workers’ compensation claim against Cabal, stipulating therein that he was in the course and scope of his employment at the time of his injury. Plaintiff collected indemnity and medical benefits pursuant to his workers’ compensation claim.

The matter proceeded to a bench trial on May 14, 2012. In lieu of closing arguments, the trial court accepted post-trial memoranda from the parties. On July 11, 2012, the trial court issued its ruling, finding that plaintiff was injured in the course and scope of his employment, and that Boh Bros, was his statutory employer and was thus immune from tort liability. This appeal followed.

FIRST AND THIRD ASSIGNMENTS OF ERROR

Interpretation of pertinent provisions of the contract between Boh Bros, and Cabal

Plaintiff argues that the contract between Boh Bros, and Cabal, purporting to make Boh Bros, the statutory employer of all of Cabal’s direct employees, is unenforceable because Boh Bros, did not unconditionally accept, implicitly or explicitly, the obligations of a statutory employer, and therefore cannot obtain the corresponding benefit of tort immunity as a statutory employer. Plaintiff also argues that the contract is unenforceable because the indemnity provision contained in the contract attempts to shield Boh Bros, from both tort liability and workers’ compensation liability, which is both prohibited by La. R.S. 23:1033 and contrary to public policy. Plaintiff cites the case of Prejean v. Maintenance \ Enterprises, Inc., 06-0364 (La.App. 4 Cir. 3/25/09), 8 So.3d 766, in support of its argument. In Prejean, the court interpreted language in the contract between the direct employer and the purported statutory employer and found that the contract impermissibly restricted the injured worker’s ability to seek workers’ compensation benefits directly from the statutory employer.

Under the Louisiana Workers’ Compensation Act (“the Act”), an employer is liable for compensation benefits to an employee who is injured as a result of an accident arising out of and in the course of his employment. La. R.S. 23:1031. Generally, the Act provides for the employee’s exclusive rights and remedies against the employer for such injury. La. R.S. 23:1032. The Act applies both to a direct employer/employee relationship, as well as to a statutory employer/employee relationship. Mitchell v. So. Scrap Recycling, L.L.C., 11-2201 (La.App. 1 Cir. 6/8/12), 93 So.3d 754, 757, writ denied, 12-1502 (La.10/12/12), 99 So.3d 47. The ultimate determination of whether a principal is a statutory employer entitled to immunity is a question of law for the court to decide. Id.

The Legislature has effectively determined that the liability of the principal, who is a statutory employer, and the direct employer is solidary as to the injured worker. La. C.C. arts. 1786 and 1790, and La. R.S. 23:1061; Bowens v. General Motors Corp., 608 So.2d 999, 1003 (La.1992). The injured worker is the obli-gee to whom the obligation of benefits is immediately and unconditionally owed by either or both. Neither a direct employer nor a statutory employer may, as to the injured worker, contract away its solidary obligation: “No contract, rule, regulation, or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided.” La. R.S. 23:1033. However, the statutory employer and the direct employer are not prohibited from contracting as between themselves rights of contribution or | ./indemnification. See, e.g., La. R.S. 23:1031(B) and 1063(A). Prejean, supra; Mitchell v. So. Scrap Recycling, L.L.C., supra.

Plaintiff claims that the contract between Boh Bros, and Cabal contains provisions that, like the contract in Preje-an, conditioned the payment of workers’ compensation benefits on a suspensive condition or otherwise shields Boh Bros, directly from workers’ compensation liability to injured workers. The trial court found, however, that the provision in question contained in the Boh Bros./Cabal contract was a permissible allocation of rights of contribution and indemnity as between Boh Bros, and Cabal, not the impermissible conditioning of payment of benefits to injured workers as was found in Prejean.

The complained-of language in the Pre-jean contract reads as follows:

5.5 Statutory Employer
This contract recognizes that Company [Murphy Oil] shall be considered the statutory employer of Contractor’s [Maintenance Enterprises’] employees and its subcontractors who provide work or services under this Contract in accordance with Louisiana R.5. [sic] 23:1031 or R.5. [sic] 23;1061 [sic]. Thus Company is to be granted the exclusive remedy protection of Louisiana R.S. 23:1032 and it shall be liable to pay compensation benefits if the immediate employer, Contractor or its subcontractors as applicable, is unable to meet their financial obligation under the Louisiana Workers’ Compensation Statute for work or service that is performed under this Agreement. The parties agree that the recognition of the Statutory Employer status is made pursuant to R.S. 23:1061 of the Louisiana Workers’ Compensation statute and that Company is not the actual employer of any of the employees of Contractor or any of its subcontractor [sic]. Further, that the company has no control or involvement in the hiring, firing, or direct supervision or direction of any such employees. The work to be performed under this Contract is an integral part of or essential to the ability of Company to generate its good, products or services. (Emphasis added.)

The Prejean court found that the highlighted language inserted an impermissible and unlawful condition to relieve Murphy-Oil, the purported statutory employer, of its direct obligation to the injured worker because the contract did not confer the | Rbenefit to the worker of the unconditional right to immediately prosecute a claim against either the statutory employer or the direct employer. The court found that this language required the injured worker to prove that his direct employer was unable to pay him benefits before proceeding directly against Murphy Oil, the statutory employer. The court found that this language placed an onerous burden upon the injured worker to discover and prove the financial and/or other reasons a direct employer was “unable” to pay compensation benefits before proceeding against the statutory employer, a condition which disrupted the statutory scheme and would lead to lengthy litigation and the possible deprivation of medical care and weekly benefits to the employee. The Prejean court recognized, however, that contractual language that only modifies the obligations or regulates the rights and responsibilities among the obligors (the statutory and direct employers) as between themselves, but not towards the obligee, the injured worker, is permissible.

The contractual language at issue in the present case reads as follows:

ll.(a) Subcontractors shall protect, defend, indemnify and hold harmless Contractor ... against any and all claims, demands, losses, liabilities, costs, judgments, obligations and causes of action of every kind and character whatsoever related to or on account of bodily injury, death, property damage, or loss by whomever made, without limit and without regard to the cause or causes thereof of the negligence of any party or parties (including, but not limited to, the sole negligence or strict liability of contractor) incident to or in connection with this subcontract, whether arising out of performance of work or services hereunder or otherwise.

There is nothing in this quoted contractual language that attempts to condition or otherwise limit the ability of an injured worker employed directly by the subcontractor (Cabal) to pursue a workers’ compensation remedy directly against the general contractor (Boh Bros.). The quoted language merely provides that Boh Bros, has a right of indemnification against Cabal in the event claims are made | flagainst Boh Bros., and thus is distinguishable from the language contained in the contract in Prejean. The quoted language comprises a regulation of the rights and obligations as between Cabal and Boh Bros, only, which case law, including Prejean, recognizes as permissible.

In his third assignment of error, which also concerns interpretation of the contract between Cabal and Boh Bros., plaintiff argues that the contract language quoted below purports to free Boh Bros, from any and all liability in any situation:

25. For the purposes of this Agreement, Contractor and Subcontractor jointly agree stipulate and recognize that the contractor shall be the statutory employer of any and all Subcontractor’s employees and/or all employees of any subcontractors ... while any of the above described persons are performing any work or providing any services under this agreement. Contractor and Subcontractor further stipulate, agree and recognize that all work performed under the Agreement between Contractor and Subcontractor further shall be considered part of the Contractor’s trade business or occupation and shall be specifically considered an integral part of or essential to the ability of the contractor to generate its goods, products or services. Contractor and Subcontractor further stipulate, agree and recognize that the services or work provided by any employee or subcontractor ... shall be deemed to be performing work or providing services which are an integral part of essential to the ability of Contractor to generate its goods, products and services.

Plaintiff cites the case of Smith v. Brown and Turner Industries Group, LLC, 01-1749 (La.App. 1 Cir. 8/15/12), 97 So.3d 1186, in support of his position, arguing that the court in Smith disapproved of similar contractual language. Plaintiffs reliance on Smith is misplaced. In Smith, the claimant, an employee of Formosa, received workers’ compensation benefits from his direct employer, Formosa, after being injured in a workplace accident at Formosa caused in part by the actions of Brown, the employee of a contract labor provider, Harmony. Smith sued Brown and Harmony in tort; Formosa and its workers’ compensation carrier intervened in the suit to recover, under the indemnity provision in the contract |inbetween Formosa and Turner relied upon by plaintiff here, all workers’ compensation benefits Formosa paid to Smith, Formosa’s own direct employee. Smith later voluntarily dismissed his claims against Brown and Harmony’s successor, Turner, with prejudice, leaving only the intervention claim outstanding. On Brown and Turner’s motion for summary judgment, the court granted the motion, dismissing Formosa’s intervention, finding the indemnity provision in the contract between Formosa and Turner against public policy, because if enforced under these facts, it shielded Formosa, the employer, from liability for workers’ compensation benefits to its own direct employee. Such is not the factual scenario before this Court in this case, nor is the contractual language at issue the same. In this case, plaintiff himself seeks a tort recovery against Boh Bros, by attempting to invalidate certain contractual provisions in the contract between his direct employer (Cabal) and Boh Bros., as noted above.

For the reasons stated above, we find no merit to plaintiffs first and third assignments of error.

SECOND ASSIGNMENT OF ERROR

Was plaintiff in the course and scope of his employment at the time of the accident in question?

Plaintiff next argues that specific language contained in the subject contract between Boh Bros, and Cabal restricted Boh Bros.’ immunity as a statutory employer to only those times while any of “the above described persons are performing any work or providing any services under this agreement.” Plaintiff argues that at the time of the vehicular accident in which he was injured, he was not actually engaged in specifically performing the duties of a cement finisher or ^performing any services under the agreement, and therefore Boh Bros, is not entitled to tort immunity under the contract.

Plaintiff essentially is making the argument that he was not in the course and scope of his employment at the time of his injury. As the court stated in Posey v. NOMAC Drilling Corp., 44,428 (La.App. 2 Cir. 8/12/09), 16 So.3d 1211, 1214:

An employee is entitled to compensation benefits if he receives a personal injury by accident arising out of and in the course of his employment. LSA-R.S. 23:1031(A); McLin v. Industrial Specialty Contractors, Inc., 02-1539 (La.7/2/03), 851 So.2d 1135. The requirement that an employee’s injury occur “in the course of’ employment focuses on the time and place relationship between the injury and the employment. McLin, supra; Weber v. State, 93-0062 (La.4/11/94), 635 So.2d 188. An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of his duties during work hours, either on the employers’ premises or at other places where employment activities take the employee. McLin, supra; Mundy v. Dept. of Health and Human Resources, 593 So.2d 346 (La.1992). The requirement that an employee’s injury “arise out of’ the employment relates to the character or origin of the injury suffered by the employee and whether this injury was incidental to the employment. McLin, supra; Williams v. Regional Transit Authority, 546 So.2d 150 (La.1989).

In brief, plaintiff argues that the following factors show that he was not “performing work” as per the contract: (1) he was on a lunch break (or coming back from a lunch break); (2) he was not at a job site, but was instead in the back of a pickup truck returning from a lunch break; (3) he was not engaged in his work activity, i.e., digging ditches with a shovel in his hand; and (4) neither Cabal nor Boh Bros, was able to produce any documentation time-sheets indicating plaintiff was being paid at the time of the collision or even how many hours he was paid that day.

Plaintiff testified that on the day of the accident, he was working as a cement finisher. His crew was working on different sections of a particular runway at the airport. At some point, plaintiffs crew was called off to assist a Boh Bros, crew, but when they arrived at that particular location, the Boh Bros, crew was not ready 112for the Cabal crew. Accordingly, the Cabal crew, including plaintiff, took a lunch break on the airport premises.

Anthony Vicari, a supervisor with Cabal at the time of plaintiffs accident, testified that he supervised plaintiffs particular work crew and other Cabal crews on this project. Because the project had tight deadlines, Cabal personnel “badged-in” in the mornings and were paid for the full day, even for lunch breaks, until they “badged-out.” He described how some employees would eat while working, while at other times it would be possible for crews to take a small break; however while on the airport premises, the employees did not “badge-out” until the end of the work day.

At the time of plaintiffs accident, Mr. Vicari testified that plaintiff was “badged-in” and “on the clock.” According to plaintiff, he had finished his lunch, and then his supervisor directed the crew, including plaintiff, to load equipment into the truck so that they could use it to work at another section of the runway. Both plaintiff and other witnesses from Cabal and Boh Bros, testified that their cement finishing work required them to work the length of the runway, and that because the runways were long, rather than walk, the employees often rode in pickup trucks when required to move from one section of the runway to another.

Plaintiff claims that the factual circumstances of his case are similar to the facts in Templet v. Intracoastal Track Line, Inc., 255 La. 193, 230 So.2d 74 (1969). In Templet, the claimant was trying to show entitlement to workers’ compensation benefits, unlike in the present case. The claimant in Templet, while driving a company vehicle, was struck as he was making a left turn into his employer’s premises to report for work. The Supreme Court on writs held that Mr. Templet was not in the course and scope of his employment because there was no “unusual”, “peculiar” or “greater” hazard to the employees of the defendant | lscompany than that faced by any motorist using public streets. Plaintiff argues that similarly, he faced the same hazards while riding in the back of the pick-up truck that a regular person would face while riding in a vehicle on the public streets.

Plaintiff misconstrues both the holding of Templet and the “arising out of’ component of workers’ compensation coverage. The focus of the “arising out of’ component is on the time and place relationship between the injury and the employment, not merely the cause of the injury, which in both Templet and this case was a vehicular accident. In this case, unlike in Tem-plet, plaintiff was not injured on a public street, but rather was “badged-in” at his workplace, the airport construction zone, was present at his worksite, the runway, an area that was not open to the public. Testimony from plaintiff and his supervisors clearly established that due to the large area of the runway worksite, the employees regularly rode in pickup trucks to get from one section of the runway to another in order to perform their particular tasks. Plaintiffs injury was clearly strongly related to his time and place of his employment.

Plaintiff next argues that he was not in the course and scope of his employment at the time of the accident. He argues that he was on his lunch break. The testimony clearly indicates otherwise. After they had eaten their lunches, plaintiff and his co-workers were told by the supervisor to load equipment into their truck, which they did, and to transport themselves and their equipment to another section of the runway in order to continue their work on the airport project, which they were in the process of doing when they were struck by the Boh Bros, vehicle. Thus, although plaintiff was not actually finishing cement at the time of the accident, he was performing services, ie., following the instructions of his supervisor, that were part of his employment duties. Thus, there is no merit to plaintiffs arguments in this regard.

| ^Further, plaintiffs arguments that Boh Bros, is not entitled to tort immunity because neither Cabal nor Boh Bros, introduced any documentation or timesheets indicating that plaintiff was being paid at the time of the collision, or even how many hours he was paid that day, are also without merit. Representatives of both Cabal and Boh Bros, testified without contradiction that plaintiff was “badged-in” at the time of the accident, had not “badged-out” at anytime prior to the accident, and was paid for his services the entire time he was “badged-in,” including at the time the accident in question occurred.

For the reasons stated above, we find no merit to plaintiffs second assignment of error.

CONCLUSION

For the reasons stated above, we find no merit to plaintiffs assignments of errors and affirm the judgment of the trial court finding that Boh Bros, was plaintiffs statutory employer. Correspondingly, Lemic’s answer to this appeal is also denied.

AFFIRMED.

      . The record reflects that this accident occurred in Jefferson Parish.

      . The issue of whether plaintiff was in the course and scope of his employment at the time of his injury, relative to his tort claim against Boh Bros., was the subject of two motions for summary judgment filed by Boh Bros, at various times in the proceedings pri- or to trial on the merits. Both times, the trial court denied the motions, finding that there remained genuine issues of material fact in dispute. Both times, panels of this Court denied Boh Bros, writ applications seeking reversal of the trial court's judgments on said motions. Stewart v. Boh Bros. Construction Co., LLC, 09-768 (La.App. 5 Cir. 12/23/09), and 11-1016 (La.App. 5 Cir. 12/28/11) (unpublished writ dispositions).

      . Prejean, 8 So.3d at 774-75.

      . Section 12 of the contract requires Cabal to secure workers’ compensation insurance coverage for its direct employees.

      . Cabral/Boh Bros. Contract, Section 25, quoted in full supra.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Chance LYONS.
    Nos. 13-KA-180, 13-KA-181, 13-KA-182, 13-KA-183, 13-KA-184, 13-KA-185, 13-KA-186.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Vincent J. Paciera, Jr., Blair C. Constant, Michael Smith, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON and ROBERT M. MURPHY.
   MARC E. JOHNSON, Judge.

^Defendant, Chance Lyons, seeks error patent review of seven convictions from the 24th Judicial District Court, Division “H”. For the following reasons, we affirm Defendant’s convictions and sentences and deny the writ applications. Additionally, we grant appellate counsel’s Motion to Withdraw.

FACTS AND PROCEDURAL HISTORY

Defendant was charged by seven separate bills of information for various crimes ranging from felony to misdemeanor offenses. The seven cases, some arising on different days and out of different sets of facts, were ultimately all resolved by plea bargains on September 20, 2012. Defendant was sentenced on all seven matters to concurrent sentences pursuant to the plea agreements. The following facts are pertinent to the seven offenses.

13-KA-180 and 13-KA-181

On April 20, 2010, in district court case number 10-2026, the Jefferson Parish District Attorney filed a bill of information charging Defendant with possession with intent to distribute heroin, in violation of La. R.S. 40:966A. That |3same day, in district court case number 10-2028, the Jefferson Parish District Attorney filed a separate bill of information charging Defendant with four misdemeanor counts: resisting an officer, in violation of La. R.S. 14:108A; battery of a police officer, in violation of La. R.S. 14:34.2; possession of drug paraphernalia, in violation of La. R.S. 40:1023; and possession of marijuana, in violation of La. R.S. 40:966C. The felony and misdemeanor charges arose out of the same set of facts alleged to have occurred on April 5, 2010. Defendant pleaded not guilty to these charges on May 20, 2010. A motion to suppress statement and evidence in case number 10-2026 was heard and denied on September 8, 2010. 13-KA-182

On June 2, 2010, in district court case number 10-2795, the Jefferson Parish District Attorney filed a bill of information charging Defendant with possession of heroin, which was alleged to have occurred on May 10, 2010, in violation of La. R.S. 40:966C. Defendant was arraigned and pleaded not guilty on July 2, 2010. A motion to suppress evidence was heard and denied on September 8, 2010.

13-KA-183

On May 20, 2011, in district court case number 11-2480, the Jefferson Parish District Attorney filed a bill of information charging Defendant with possession with the intent to distribute heroin, which was alleged to have occurred on May 2, 2011, in violation of La. R.S. 40:966A. Defendant was arraigned and pleaded not guilty on June 16, 2011.

13-KA-m & 13-KA-185

On August 8, 2011, in district court case number 11-3903, the Jefferson Parish District Attorney filed a bill of information charging Defendant with misdemeanor possession of marijuana, in violation of La. R.S. 40:966C. The next day, in district court case number 11-3938, the Jefferson Parish District Attorney Lfiled a separate bill of information charging Defendant with possession with intent to distribute heroin, in violation of La. R.S. 40:966A. The felony and misdemeanor charges arose out of the same set of facts alleged to have occurred on July 14, 2011. Defendant pleaded not guilty to these charges on August 10, 2011. A motion to suppress statement and evidence in case number 11-3938 was heard and denied on August 23, 2012.

13-KA-186

On October 18,' 2011, in district court case number 11-5170, the Jefferson Parish District Attorney filed a bill of information charging Defendant with domestic abuse battery, in violation of La. R.S. 14:35.3. Defendant was arraigned and pleaded not guilty on October 19, 2011.

Competency and Sentencing on all Cases

A competency hearing was conducted in these seven cases on March 21, 2012 and May 30, 2012, after which the trial court found Defendant competent to stand trial. On September 20, 2012, Defendant withdrew his former pleas of not guilty and entered a plea of guilty as charged to all counts, in all seven cases, pursuant to Alford. Pursuant to the plea agreements, Defendant was sentenced as follows: 25 years imprisonment at hard labor, with the first five years to be served without benefit of probation, parole, or suspension of sentence for possession with intent to distribute heroin in case number 10-2026; six months in parish prison on each of the four misdemeanor counts in case number 10-2028; ten years imprisonment at hard labor for possession of heroin in case number 10-2795; 25 years imprisonment at hard labor, with the first five years to be served without benefit of probation, parole, or suspension of sentence for possession with intent to distribute heroin in case number 11-2480; six months in parish prison for | ^possession of marijuana in case number 11-3903; 25 years imprisonment at hard labor, with the first five years to be served without benefit of probation, parole, or suspension of sentence for possession with intent to distribute heroin in case number 11-3938; and six months in parish prison for domestic battery in case number 11-5170. All sentences were ordered to be served concurrently.

On October 3, 2012, the trial court granted Defendant’s Motion for Appeal in the seven cases. On March 28, 2013, this Court granted defense counsel’s motion that the seven cases be consolidated for appeal. Appointed appellant counsel has now filed an Anders brief addressing each of these seven consolidated cases pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97); 704 So.2d 241 (per curiam).

ASSIGNMENTS OF ERROR

In his Anders brief, Defendant requests that this Court perform an error patent review of the record and reverse his convictions.

LAW AND ANALYSIS

Jurisdictional Posture

This Court’s appellate jurisdiction extends only to cases that are triable by a jury. State v. Chess, 00-164 (La.App. 5 Cir. 6/27/00); 762 So.2d 1286, 1287 (citing La. Const, of 1974, art. 5 § 10; La.C.Cr.P. art. 912.1). Unless the punishment that may be imposed exceeds six months imprisonment, a misdemeanor is not triable by a jury. Chess, 762 So.2d at 1287 (citing La. Const, of 1974, art. 1 § 17; La.C.Cr.P. art. 779; State v. Robinson, 94-864 (La.App. 5 Cir. 3/15/95); 653 So.2d 669, 670).

IfiWhen misdemeanor offenses are charged by separate bills of information and the aggregate penalty of the offenses exceeds six months imprisonment or a fine of $1,000.00, the defendant is entitled to a jury trial. State v. Armant, 02-907, (La.App. 5 Cir. 1/28/03); 839 So.2d 271, 279 (citing State v. Homung, 620 So.2d 816, 817 (La.1993) (per curiam)).

However, when the State charges a defendant with two or more misdemeanors in a single bill of information or indictment, La. C.Cr.P. art. 498.1 limits the maximum aggregate penalty that may be imposed for all of the misdemeanors to six months of imprisonment or a fine of one thousand dollars, or both. Chess, 762 So.2d at 1287. As such, when two or more misdemeanors are joined in a single bill of information, the case is not triable by a jury. Chess, 762 So.2d at 1287-88 (citing Homung, supra).

Here, three of the seven cases are comprised of misdemeanor offenses. On April 20, 2010, Defendant was charged in a single bill of information with four misdemeanors in case number 10-2028, for crimes alleged to have occurred on April 5, 2010. Because these three misdemeanors were joined in a single bill of information, the maximum aggregate penalty was limited to six months imprisonment or a fíne of one thousand dollars, or both.

Also, on August 8, 2011, Defendant was charged in a single bill of information with one count of simple possession of marijuana alleged to have occurred on July 14, 2011, in case number 11-3903. On October 18, 2011, Defendant was charged in a single bill of information with one count of domestic battery alleged to have occurred on April 19, 2011, in case number 11-5170. The maximum penalty Defendant could have received for each of these two offenses |7was also limited to six months imprisonment or a fíne of one thousand dollars, or both, meaning Defendant’s misdemeanor charges were not triable by a jury.

The proper procedure for seeking review of a misdemeanor conviction is an application for writ of review directed to this Court to exercise its supervisory jurisdiction, and not an appeal. See La. C.Cr.P. art. 912.1(C)(1). This Court’s most recent policy is to avoid converting matters that are improperly filed as appeals to writ applications. See State v. Fleming, 01-1370 (La.App. 5 Cir. 5/29/02); 820 So.2d 1112, 1113; Chess, supra; State v. Suthon, 99-661 (La.App. 5 Cir. 10/29/99); 746 So.2d 240; State v. Robinson, 97-686 (La.App. 5 Cir. 1/14/98); 707 So.2d 81. However, this Court typically makes an exception if the interests of justice would be better served by converting the filing to a writ application. See State v. Tate, 09-619 (La.App. 5 Cir. 2/9/10); 33 So.3d 292, 295-96. Conversion of appeals to writ applications should be the exception, not the rule, “as it contradicts the authority granted to appellate courts by the supreme law for this state.” State v. Flowers, 11-376 (La.App. 5 Cir. 12/13/11); 81 So.3d 910, 910 n. 3.

In this case, the facts of the misdemeanor and felony convictions in case numbers 10-2026 and 10-2028, and 11-3903 and 11-3938 are intertwined to the point that the interest of justice would be better served by considering the matters together. Additionally, although Defendant’s domestic battery conviction in case number 11-5170 is unrelated to any of Defendant’s other convictions, all seven cases were ultimately grouped together in the trial court where Defendant’s guilty plea hearing and sentencing occurred simultaneously. Since this Court will be reviewing the same issues (with the exception of sentencing) in Defendant’s felony appeals, judicial economy dictates us to consider these matters together.

| ^Accordingly, we convert the appeals listed as 13-KA-0181, 13-KA-184 and 13-KA-186 to writ applications. These writ applications will be reviewed along with the remaining consolidated appeals before us.

Anders Brief

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

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, supra.

InWhen conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96); 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In his brief, Defendant’s appellate counsel provides a thorough procedural history of the seven consolidated cases. He also provides an extensive discussion of the pre-trial rulings made in this case. Counsel specifically asserts that the hearings on the motions to suppress statement and evidence conducted in case numbers 10-2026, 10-2028, 10-2795, 11-3903, and 11-3938 established that in each case, the officers had reasonable suspicion and/or the probable cause necessary to approach, detain, and ultimately conduct the searches at issue. Thus, in each case, counsel contends that the trial court did not abuse its discretion when it denied Defendant’s motions to suppress. Counsel also concludes that the trial court properly found Defendant competent to stand trial based on the recommendation of Drs. Richard Richoux and Raphael Salcedo, where Defendant presented no countervailing evidence. Counsel further explains that the evidence alleged appears to have been sufficient to support verdicts of guilty as charged had the matters been taken to trial. Thus, after a detailed review of the record, including the bills of information, minute entries, plea forms and accompanying colloquies, and the sentences, he concludes that there are no non-frivolous issues to raise on appeal.

hnAlong with his brief, appellate counsel has filed a motion to withdraw as attorney of record which states that he is of the opinion that an appeal would be wholly frivolous for the reasons stated in his brief, and that Defendant has been provided with a copy of his Anders brief and a pro se briefing notice. Additionally, this Court sent Defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until April 28, 2013, to file a pro se supplemental brief. Defendant has not filed a supplemental pro se brief.

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

The bills of information in these cases properly charged Defendant and present no non-frivolous issues supporting an appeal. As required, they plainly, concisely, and definitely state the essential facts constituting the offenses charged. They also sufficiently identify Defendant and the crimes charged. See generally La.C.Cr.P. arts. 464-66.

As reflected by the minute entries and commitments, Defendant appeared at each stage of the proceedings against him. He attended his arraignments, his guilty pleas, and his sentencing. As such, Defendant’s presence does not present any issue that would support an appeal.

Further, Defendant pleaded guilty as charged to three charges of possession with intent to distribute heroin, two charges of simple possession of marijuana, possession of heroin, resisting an officer, battery of a police officer, possession of drug paraphernalia, and domestic abuse battery. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea proceedings and precludes review of such defects either by appeal or post-conviction relief. State v. WingeHer, 05-697 (La.App. 5 Cir. 3/14/06); 926 So.2d 662, 664. Defendant filed several pre-trial motions, including motions to |n suppress statement and evidence. Although the trial court denied Defendant’s motions to suppress statement and evidence, Defendant did not preserve these rulings, or any other rulings, for appellate review under the holding in State v. Crosby, 338 So.2d 584 (La.1976).

Defendant pleaded guilty pursuant to North Carolina v. Alford, supra, which requires the establishment of a factual basis for the plea when a defendant protests that he is innocent. When a defendant pleads guilty under Alford, constitutional due process requires that the record contain strong evidence of actual guilt.

State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06); 924 So.2d 1120,1123.

Here, the prosecutor offered a factual basis for the pleas, to which defense counsel stipulated. Moreover, the record in this matter, which includes the suppression hearing transcripts in case numbers 10-2026 and 10-2028, 10-2795, and 11-3938, contains strong evidence of Defendant’s actual guilt. Accordingly, there is a sufficient factual basis for the Alford pleas; and therefore, this does not present an issue that should have been raised on appeal.

We also note that the record contains a ruling by the trial judge finding Defendant competent to stand trial. At the competency hearing held on March 21, 2012, Dr. Richoux, an expert in forensic psychiatry, testified that he and Dr. Salcedo performed a competency evaluation of Defendant. Pursuant to their examination, he and Dr. Salcedo issued a joint report in which they agreed that Defendant met the Bennett criteria. Dr. Richoux testified that they were of the opinion that Defendant appeared to fully comprehend his circumstances and did l12not appear to be suffering from any mental disease or defect which prevented him in any way from understanding the proceedings or from being able to assist counsel. Thus, based on their examination, it was their recommendation to the court that Defendant be found competent to stand trial.

After cross-examining Dr. Richoux, defense counsel requested that the matter remain open for the purpose of calling a defense expert on the issue of Defendant’s competency. The matter was continued to March 30, 2012, at which time defense counsel stated that he had no additional witnesses or psychiatric/psychological reports that he could tender in support of his position that Defendant was incompetent to stand trial. Given the lack of countervailing evidence, the trial court accepted the recommendation of Drs. Richoux and Salcedo and found Defendant competent to stand trial.

As previously noted, Defendant did not reserve his right to appeal his convictions pursuant to Crosby, supra. Thus, Defendant’s guilty plea waived his right to challenge the merits of the State’s case, including his competency to stand trial.

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. McCoil, 924 So.2d at 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. McCoil, supra. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La.1984).

|iSOn September 20, 2012, the trial court conducted two Boykin colloquies with Defendant. The record reveals Defendant was aware during these examinations that he was pleading guilty to three charges of possession with intent to distribute heroin, two charges of simple possession of marijuana, possession of heroin, resisting an officer, battery of a police officer, possession of drug paraphernalia, and domestic abuse battery pursuant to North Carolina v. Alford, supra. He was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Defendant was advised of these rights during the two colloquies with the trial judge and by means of the waiver of rights forms. Defendant indicated that he understood that he was waiving these rights. The trial judge indicated that he was accepting Defendant’s pleas as knowingly, intelligently, freely, and voluntarily made.

Defendant stated that he had not been forced, coerced, or threatened to enter his guilty pleas. He was also informed that his convictions could be used to enhance a penalty for any future felony conviction should he be convicted of another felony in the future. Defendant further indicated that he understood that the State agreed not to file a habitual offender bill of information in any of the cases.

Defendant was also advised during the colloquy and by means of the waiver of rights form that he faced a possible penalty of five to fifty years imprisonment at hard labor with the first five years being without the benefit of probation, parole, or suspension of sentence for the charges of possession with intent to distribute | ^heroin; zero to six months in parish prison for the misdemeanor charges, which included his two charges for simple possession of marijuana, resisting arrest, battery of a police officer, possession of drug paraphernalia, and domestic abuse battery; and four to ten years imprisonment at hard labor for the charge of possession of heroin. Also by means of the form and during the colloquy, Defendant was informed of what his sentences would be if his guilty pleas were accepted by the court. The waiver of rights forms also suggest that Defendant understood the possible consequences of pleading guilty and wished to plead guilty. The waiver of rights forms were signed and initialed by Defendant and were also signed by his counsel and the judge.

Defendant’s sentences do not present issues for appeal. Defendant’s sentences fall within the sentencing ranges prescribed by statute. See La. R.S. 40:966A; 14:108A; 14:34.2; 40:1023; 40:966C; 14:35.3. Further, Defendant’s sentences were imposed pursuant to the plea agreements. Defendant knew what his sentences would be if he chose to plead guilty. Defendant received sentences in conformity with the agreements. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05); 916 So.2d 1171, 1173.

Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, we affirm Defendant’s convictions and sentences and deny the writ applications. Additionally, appellate counsel’s motion to withdraw as attorney of record is granted.

| nError Patent Discussion

Defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990), regardless of whether a defendant makes such a request.

After review of the record, we do not find any error patents that require corrective action by this Court.

DECREE

For the foregoing reasons, Chance Lyons’s convictions and sentences are affirmed, and the writ applications are denied. Additionally, appellate counsel’s Motion to Withdraw is granted.

AFFIRMED; WRITS DENIED; MOTION TO WITHDRAW GRANTED

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

      . La.C.Cr.P. art. 779(A) provides: "A defendant charged with a misdemeanor in which the punishment, as set forth in the statute defining the offense, may be a fine in excess of one thousand dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict.”

      . According to La.C.Cr.P. art. 493.1, ”[w]hen-ever two or more misdemeanors are joined in accordance with Article 493 in the same indictment or information, the maximum aggregate penalty that may be imposed for the misdemeanors shall not exceed imprisonment for more than six months or a fine of more than one thousand dollars, or both.”

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

      . Motions to suppress statement and evidence were denied in case numbers 10-2026 and 10-2028, 10-2795, and 11-3938.

      . Defendant also filed several omnibus motions in each of the seven cases. Although the record does not reflect rulings on all of these pre-trial motions, when a defendant does not object to the trial court’s failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. See State v. Corzo, 04-791 (La.App. 5 Cir. 2/15/05); 896 So.2d 1101, 1102.

        .See also State v. Jones, 07-512 (La.App. 5 Cir. 12/27/07); 975 So.2d 21, 26-27, writ denied, 08-0325 (La.9/26/08); 992 So.2d 982, where this Court found that the evidence presented at the hearing on the motion to suppress identification demonstrated strong evidence of the defendant's actual guilt and, therefore, supported his Alford plea.

      . State v. Bennett, 345 So.2d 1129 (La.1977).

      . The first Boykin colloquy encompassed case numbers 11-3903 and 11-3938. The second Boykin colloquy encompassed the remainder of the cases.

      . Whenever a misdemeanor guilty plea will be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor offense to a felony, it is incumbent upon the trial judge to inform the defendant that by pleading guilty he waives the three Boykin rights. State v. Casse, 00-235 (La.App. 5 Cir. 10/18/00); 772 So.2d 801, 803.


text:
    STATE of Louisiana v. Charles John GATES.
    No. 13-KA-206.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 9, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Myles D. Ranier, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, Louisiana, for PlaintiffAppellee.
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   JUDE G. GRAVOIS, Judge.

|2Pefendant, Charles John Gates, appeals his conviction of one count of operating a motor vehicle while intoxicated, fourth offense, a violation of La. R.S. 14:98(A)(E). Defendant pleaded not guilty at his arraignment. However, after this Court denied defendant’s writ application on the trial court’s denial of his Motion to Suppress Chemical/Breath Test Results, defendant pleaded guilty as charged pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the denial of his motion to suppress. Defendant was then sentenced to twenty years imprisonment at hard labor, with credit for time served, with the first two years of his sentence to be served without the benefit of probation or parole. The trial judge suspended ten years of defendant’s sentence and placed him on active probation for five years following his release from jail.

|sOn appeal, defendant argues that the results of the breathalyzer test administered to him by the Jefferson Parish Sheriffs deputy following his arrest should be suppressed because the test was illegally administered since he was not operating a motor vehicle on a public highway prior to his arrest, citing State v. Zachary, 601 So.2d 27 (La.App. 1 Cir.1992). For the following reasons, we find no merit to defendant’s assignment of error and accordingly affirm his conviction and sentence.

FACTS

Because this matter did not proceed to trial, the following facts involving the offense were developed at the hearing conducted on defendant’s motion to suppress. Deputy Jeff Navo of the Jefferson Parish Sheriffs Office testified that he arrested defendant on September 3, 2011 for driving while intoxicated. Deputy Navo explained that he had been called to the scene of a traffic accident that had occurred in the parking lot of a motel on Jefferson Highway in Jefferson Parish. Upon arriving at the scene, Deputy Navo observed a white van parked in a parking space, and another vehicle parked in the parking lot. The driver of the other vehicle told Deputy Navo that the white van had backed into his vehicle while both were in the motel parking lot. Deputy Navo approached defendant, whom he felt exhibited signs of being under the influence of alcohol, specifically, slurred speech. Defendant, when asked by Deputy Navo, declined to say whether or not he had consumed any alcohol. Deputy Navo administered a field sobriety test to defendant, who in the opinion of Deputy Navo performed poorly.

At that point, Deputy Navo arrested defendant for driving while intoxicated. He transported defendant to the Sheriffs Department’s lockup, where he filled out an Arrestee’s Rights Form with defendant that included a review of his 1 constitutional rights. Defendant signed the form, indicating that he understood his rights. Deputy Navo then conducted the 16-question interview with defendant that is part of the “State Police DUI Form,” after which defendant consensually agreed to take a breathalyzer test. At the hearing on the motion to suppress, counsel for defendant specifically acknowledged that defendant did in fact consent to taking the breathalyzer test. The results of the test showed that defendant had a .207 grams percent blood alcohol level as of that time.

On cross-examination, Deputy Navo testified that defendant told him that he had not consumed alcohol on the day of his arrest. Deputy Navo acknowledged that he had not made a traffic stop of defendant and had not observed defendant operating or driving his vehicle. He admitted that he did not know what time defendant had arrived at the parking lot, nor when defendant may have consumed alcohol prior to his arrest.

ASSIGNMENT OF ERROR — Denial of Motion to Suppress

In his sole assignment of error, defendant asserts that the district court erred in failing to grant his motion to suppress, claiming that the breathalyzer test was illegally administered. On appeal, defendant argues that the implied consent enumerated in La. R.S. 32:661 did not apply to his case because no evidence whatsoever was presented at the suppression hearing that he operated his vehicle on a public highway of this state in an intoxicated condition prior to his arrest for the subject charge. In response, the State argues that Louisiana law does not limit the prohibition of drunk driving to public highways. The State further contends that the results of the breathalyzer test were properly admissible because defendant voluntarily consented to the test.

As noted above, defendant pleaded guilty as charged pursuant to State v. Crosby, supra. In general, a guilty plea waives all non-jurisdictional defects in the | ¡^proceedings prior to the plea and precludes review of such defects either by appeal or on post-conviction relief. Id. A defendant may reserve his right to appellate review if, at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. Id. at 590-92.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703(D). The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Smith, 07-815 (La.App. 5 Cir. 3/11/08), 982 So.2d 821, 824, writ denied, 08-0927 (La.11/14/08), 996 So.2d 1088.

Defendant was charged with one count of unlawfully operating a motor vehicle while intoxicated, fourth offense or greater, in violation of La. R.S. 14:98(A)(E). As the trial court correctly noted, the enforcement of La. R.S. 14:98 is not limited to public thoroughfares. On at least two separate occasions, this Court has held that where a vehicle is driven while the driver is under the influence is not an element of the offenses enumerated in La. R.S. 14:98. In State v. Cowden, 04-707 (La.App. 5 Cir. 11/30/04), 889 So.2d 1075, 1087-88, writ denied, 04-3201 (La.4/8/05), 899 So.2d 2, this Court acknowledged:

LSA-R.S. 14:98 does not include as an element of the crime that the offense must have occurred on public property, roads, or highways. Further, in State v. Landeche, 447 So.2d 1201 (La.App. 5 Cir.1984), this Court held that a person could be charged and convicted under LSA-R.S. 14:98, even if the operation of a motor vehicle was not on a public street or highway. Also, in State v. Smith, 93-1490 (La.App. 1 Cir. 6/24/94), 638 So.2d 1212, 1215, the appellate court stated that, “[t]he DWI statute does not limit the prohibition of driving while intoxicated to driving on state highways, and evidence of operating a [¿vehicle while intoxicated, even in the ditch, constitutes evidence of the offense.”

Further, as cited by this Court in Landeche, supra, the Louisiana Supreme Court in State v. Layssard, 310 So.2d 107, 110 (La.1975), stated:

“The statute (R.S. 14:98) does not limit the prohibition of drunk driving to highways, and evidence of driving while intoxicated, even in the neighbor’s yard, would constitute some evidence of the offense.” (Underlining provided.)

Landeche, supra, at 1202. [Emphasis as in the original.]

The case upon which defendant relies, State v. Zachary, supra, is factually distinguishable from the instant ease. La. R.S. 32:661(A)(2) authorizes the administration of breathalyzer tests when a person is driving on a public highway of the state in an intoxicated condition. Zachary held that the implied consent to the breathalyzer test found in La. R.S. 32:661 includes and applies to persons operating motor vehicles upon city streets. The Zachary court upheld the grant of the defendant’s motion to suppress the results of the breathalyzer test because there was no evidence presented that the defendant was driving his vehicle on a public highway. However, in this case, the trial court found that defendant gave his actual consent to the breathalyzer test. Deputy Navo testified as such, and defendant’s counsel specifically acknowledged at the suppression hearing that defendant had given his consent to the test. Thus, the issue of the applicability of La. R.S. 32:661 is not germane to this case. We accordingly find no abuse of discretion in the trial court’s denial of defendant’s motion to suppress.

In brief, defendant appears to also argue that there was insufficient evidence to show that he was the person operating the white van. However, in the trial court, defendant’s sole basis regarding the motion to suppress was the applicability of La. R.S. 32:661. Louisiana courts have long held that a defendant may not raise new grounds for suppressing evidence on appeal that he did not raise at the trial |7court in a motion to suppress. State v. Montejo, 06-1807 (La.5/11/10), 40 So.3d 952, 967, cert. denied, Montejo v. Louisiana, — U.S. -, 131 S.Ct. 656, 178 L.Ed.2d 513 (2010). Further, sufficiency of the evidence is not grounds for a motion to suppress evidence, wherein the State bears the burden of proving the admissibility of evidence seized without a warrant. La.C.Cr.P. art. 703(D); State v. Smith, supra at 824. Finally, a plea of guilty by its nature admits factual guilt and relieves the State of the necessity of proving it by a contested trial. State v. Crosby, supra. Therefore, because defendant pled guilty, he cannot challenge the sufficiency of the evidence on appeal. State v. Smith, supra at 824.

ERRORS PATENT REVIEW

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). Our review reveals no errors patent in this case.

CONCLUSION

For the reasons expressed above, defendant’s conviction and sentence are affirmed.

AFFIRMED

      . In State of Louisiana v. Charles J. Gates, 12-243 (La.App. 5 Cir. 3/14/12) (unpublished writ disposition), this Court declined to exercise its supervisory jurisdiction on defendant's writ application following the trial court's denial of his motion to suppress, noting that defendant had an adequate remedy on appeal in the event of a conviction.

      . Deputy Navo testified that he had twenty-one years of experience in law enforcement, with eleven of those years in traffic enforcement, where he had previously made several arrests for driving while intoxicated.

      . In Crosby, the Louisiana Supreme Court defined jurisdictional defects as those which, even conceding a defendant's factual guilt, do not permit conviction of the charged offense. The Supreme Court listed the following as examples of jurisdictional defects: (1) the lack of jurisdiction of the sentencing court, (2) the conviction represents double jeopardy, (3) the prosecution had prescribed at the time it was instituted, (4) the State lacked constitutional or legal power to try the defendant for the charged offense, (5) the statute under which prosecution is brought is unconstitutional, (6) the charge in the indictment does not constitute a crime, and (7) certain types of patent errors that prevent conviction for the offense. Id. at 588.