author: HANS J. LILJEBERG, Judge.

text:
    STATE of Louisiana v. Eric HILL.
    No. 13-KA-447.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andre F. Long, Myles D. Ranier, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and HANS J, LILJEBERG.
   HANS J. LILJEBERG, Judge.

^Defendant appeals his conviction and sentence, which resulted from a guilty plea entered under the provisions of State v. Crosby, 338 So.2d 584 (La.1976). For the following reasons, we vacate defendant’s conviction and sentence, and we remand this case for further proceedings.

STATEMENT OF THE CASE

On September 14, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Eric Hill, with possession of “[c]ocaine in excess of 28 to 200 grams,” in violation of LSA-R.S. 40:967(F). He pled not guilty at arraignment. Thereafter, defendant filed various pre-trial motions, including motions to suppress the evidence and statement. A suppression hearing was held on February 1, 2012, and the trial court denied defendant’s motions to suppress the evidence and statement.

On February 19, 2013, defendant withdrew his not guilty plea and entered a guilty plea pursuant to the provisions of State v. Crosby, supra, which allows a defendant to plead guilty while reserving the right to appeal a pre-trial ruling. Defendant was sentenced to 15 years imprisonment at hard labor with the first five years of the sentence to be served without benefit of probation, parole or | ¡¡suspension of sentence. On this same date, the State filed a multiple offender bill of information alleging that defendant was a second felony offender. After defendant stipulated to the allegations in the multiple bill, his original sentence was vacated, and he was resentenced as a second felony offender to the same sentence of 15 years imprisonment at hard labor, with the first five years of the sentence to be served without benefit of probation, parole or suspension of sentence.

Defendant now appeals. On appeal, he claims that his conviction cannot stand, because the trial court erred in failing to grant his motion to suppress the evidence. However, because we must vacate and set aside defendant’s conviction on other grounds, we cannot address the merits of defendant’s appeal at this stage of the proceedings.

DISCUSSION

Defendant was charged by bill of information with possession of “[cjocaine in excess of 28 to 200 grams,” in violation of LSA-R.S. 40:967(F). However, the record reflects that he pled guilty to “possession with intent to distribute cocaine between twenty-eight and two hundred grams,” which is not a recognized crime under Louisiana law.

The waiver of rights form indicates that defendant was pleading guilty to “pos. w/intent to dist. cocaine 28-200 gms.” Also, during the plea colloquy, the trial court informed defendant that he was pleading guilty to “possession with the intent to distribute cocaine between twenty-eight and two hundred grams.” Additionally, in his recitation of the factual basis for the plea, the prosecutor indicated that the State would have proven that on August 15, 2011, defendant “knowingly and intentionally possessed with the intent to distribute between twenty-eight and two hundred grams of cocaine.” Finally, the commitment reflects 14that defendant pled guilty to possession with intent to distribute cocaine in excess of 28 to 200 grams.

We note that the waiver of rights form does reference LSA-R.S. 40:967(F), which is the subsection of the statute for the offense charged, possession of 28 to 200 grams of cocaine. However, the transcript of the guilty plea colloquy does not reflect that defendant pled guilty “as charged” and there was no mention of the specific statute to which he was pleading guilty during the colloquy.

The jurisprudence provides that the trial court has jurisdiction to accept a knowing and voluntary guilty plea, even when the crime to which the defendant pled guilty is not responsive to the crime for which he was charged and the bill of information has not been amended to conform to the plea. See State v. Jackson, 04-2863 (La.11/29/05), 916 So.2d 1015. However, in the case before us, defendant did not plead guilty to a nonresponsive crime; rather, he pled guilty to a crime that does not exist under Louisiana law.

It appears that “possession with intent to distribute cocaine between twenty-eight and two hundred grams” is a combination of two offenses — possession with intent to distribute cocaine under LSA-R.S. 40:967(A)(1) and possession of 28 grams or more but less than 200 grams of cocaine under LSA-R.S. 40:967(F)(1)(a). See State v. Lewis, 46,344 (La.App. 2 Cir. 5/18/11), 69 So.3d 604, 611, writ denied, 11-2282 (La.6/1/12), 90 So.3d 426. There is no such crime as “possession with intent to distribute cocaine between 20 and 200 grams.” The trial court cannot accept a guilty plea to a nonexistent crime. See State v. Williams, 47,242 (La.App. 2 Cir. 7/18/12), 103 So.3d 412; and State v. Smith, 04-338 (La.App. 3 Cir. 9/29/04), 883 So.2d 505.

Although the reference to LSA-R.S. 40:967(F) in the waiver of rights form suggests that defendant may have intended to plead guilty as charged, the | ..¡numerous references in the record to “possession with intent to distribute cocaine between 28 and 200 grams” make it unclear that defendant intended to plead guilty to possession of 28 to 200 grams of cocaine, as opposed to possession with intent to distribute cocaine. We must ensure that a defendant understands the crime to which he is pleading guilty and that his plea is knowing and voluntary. Accordingly, we are compelled to set aside defendant’s guilty plea, vacate his conviction and sentence, and remand for further proceedings.

DECREE

For the foregoing reasons, we set aside defendant’s guilty plea, vacate his conviction and sentence, and remand this matter to the trial court for further proceedings.

CONVICTION AND SENTENCE VACATED; REMANDED.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Albert D. COX.
    No. 13-KA-494.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne M. Wallis, J. Brandon Kinnett, Thomas Sanderson, Assistant District Attorneys, Gretna, LA, for Appellee State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Appellant Albert Cox.

      Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and STEPHEN J. WINDHORST.
   SUSAN M. CHEHARDY, Chief Judge.

|2On appeal, defendant challenges his underlying conviction for possession of cocaine. For the following reasons, we affirm defendant’s underlying conviction and enhanced sentence.

Procedural history

On September 7, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant, Albert D. Cox, with possession of cocaine, in violation of La. R.S. 40:967(C). On March 5, 2013, after a bench trial, the trial court found defendant guilty as charged. On March 21, 2013, the trial court sentenced defendant to imprisonment at hard labor for a term of two years, with credit for time served.

Also, on March 21, 2013, the State filed a multiple offender bill of information against defendant, alleging that defendant was a third felony offender. That day, defendant stipulated to the allegations of the multiple offender bill. The trial court immediately vacated defendant’s underlying two-year sentence and resentenced defendant under La. R.S. 15:529.1 to “serve 40 months in the | ^Department of Corrections with credit for time served,” to run concurrently with any other sentence defendant was serving.

On March 25, 2013, defendant’s Motion for Appeal was granted. This appeal follows.

Facts

Officer Jamón Green, of the Kenner Police Department, testified that, in the early morning hours on May 12, 2012, he and two other officers responded to a call at 2636 Tupelo Street regarding a complaint that “there was someone in the backyard of the residence pulling on doors and pulling on windows.” As the three officers approached the residence with flashlights shining, an unknown man fled from the backyard of the residence. The man, identified at trial as defendant herein, was quickly apprehended by the officers and patted down for weapons by Officer Green. Thereafter, defendant was arrested for criminal trespass, handcuffed, and prepared for transport to the Kenner jail.

Officer Green explained that, before he placed defendant into the backseat of his unit, Officer Green lifted up the vehicle’s backseat and shined his flashlight into the area under the seat to demonstrate to defendant that there was nothing in the cavity underneath the seat. According to Officer Green, defendant agreed that there was nothing underneath the seat and Officer Green placed defendant into the backseat of his unit to transport him to the City of Kenner jail. After Officer Green transported defendant to jail, Officer Green checked underneath the backseat |4of his police unit and discovered a clear plastic bag containing white powder-like substance, which field-tested positive for contraband.

At trial, Marcelle Folse, the Supervisor of Forensic Chemistry at the Jefferson Parish Sheriffs Office Crime Laboratory, was qualified as an expert in the identification and analysis of controlled dangerous substances, and testified that the “off-white powder substance” in this case tested positive for cocaine.

After the evidence was presented, the trial judge found defendant guilty as charged of possession of cocaine. Defendant appeals that conviction.

Discussion

In his sole assignment of error, defendant argues that the evidence was insufficient to support his conviction for possession of cocaine. He alleges that the State failed to establish that defendant exercised dominion and control over the cocaine because Officer Green’s testimony was not credible. Specifically, defendant submits that Officer Green’s testimony regarding his protocol of searching underneath the backseat of his police unit before and after transporting a suspect is “preposterous.” The State contends that Officer Green’s uncontradicted, credible testimony provided the trier-of-fact with sufficient evidence to convict defendant.

The standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). According to Jackson, supra, the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

The fact-finder’s decision to accept or reject the testimony of a witness in whole or in part is afforded great deference. State v. Reyes, 98-424 (La.App. 5 Cir. 12/29/98), 726 So.2d 84, 88, writ denied, 99-1474 (La.10/8/99), 750 So.2d 967. In applying the Jackson standard, the reviewing court does not assess the credibility of the witnesses, nor reweigh evidence. State v. Bradley, 03-384 (La.App. 5 Cir. 9/16/03), 858 So.2d 80, 84, writ denied, 03-2745 (La.2/13/04), 867 So.2d 688.

“Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.” State v. Jones, 04-1258 (La.App. 5 Cir. 4/26/05), 902 So.2d 426, 430. When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 provides that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Wooten, 99-181 (La.App. 5 Cir. 6/1/99), 738 So.2d 672, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208.

To support a conviction for possession of cocaine, the State is required to prove that defendant was in possession of the drug and that he knowingly or intentionally possessed it. La. R.S. 40:967(C); State v. Robinson, 04-964 (La.App. 5 Cir. 2/15/05), 896 So.2d 1115.

The element of possession may be established by showing defendant exercised either actual or constructive possession of the substance. State v. Lewis, 04-1074 (La.App. 5 Cir. 10/6/05), 916 So.2d 294, writ denied, 05-2382 (La.3/31/06), 925 So.2d 1257. A person not in physical possession of the drug is considered to be in constructive possession of the drug, even though the drug is not in his physical custody, when it is under that person’s dominion and control. Id.

| ñ“Mere presence in an area where drugs are found or mere association with the person in actual possession does not constitute constructive possession.” State v. Jones, 902 So.2d at 431. However, “[p]roximity to the drug, or association with the possessor, may establish a prima facie case of possession when colored by other evidence.” Id.

In State v. Robinson, supra, which is factually similar to this case, this Court found that the evidence was sufficient to convict the defendant of possession of cocaine. In Robinson, the defendant was stopped for a traffic infraction, placed under arrest, handcuffed, patted-down for weapons then placed into the police patrol car. After transporting the defendant, the arresting officer checked underneath the backseat of his police unit and discovered a bag containing cocaine.

On appeal, Robinson argued that there was insufficient evidence to support her conviction because the only evidence was implausible testimony from the arresting officer that he searched his patrol car after transporting his last suspect and before arresting defendant. The arresting officer explained that he conducted a weapons pat-down of the defendant prior to placing her in his patrol unit but did not search her pockets. He also testified that defendant squirmed in the back of the patrol car on the way to the jail, and that he found the bag of cocaine directly underneath the area where the defendant had been sitting. Based on the officer’s testimony, the jury found the defendant guilty of possession of cocaine.

In the case at bar, we find that the evidence presented by the State was sufficient for the trier-of-fact to reasonably conclude that defendant was guilty of possession of cocaine. Officer Green testified that he looked in the area under the backseat of his police unit before transporting defendant and observed nothing in that area before putting defendant into the rear passenger compartment. Officer Green testified that, after removing defendant from his patrol car, he again |7searched under the backseat where defendant had been seated and found the bag of cocaine.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to convict. State v. Addison, 00-1730 (La.App. 5. Cir. 5/16/01), 788 So.2d 608, 613, writ denied, 01-1660 (La.4/26/02), 814 So.2d 549. The trial court obviously chose to believe the uncontradicted testimony of Officer Green, which was not internally contradictory or in conflict with the physical evidence. We do not assess the credibility of the witnesses or reweigh evidence on appeal. State v. Bradley, supra.

After our review of the evidence in the light most favorable to the prosecution, we find that any rational trier of fact could find that the State proved possession beyond a reasonable doubt. Accordingly, the trial court did not err in finding defendant guilty as charged of possession of cocaine.

Errors patent

Pursuant to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990), we have reviewed the record for errors patent and found none that require correction.

Decree

Accordingly, defendant’s underlying conviction and enhanced sentence are affirmed.

AFFIRMED.

      . Only those individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Corrections. La. R.S. 15:824(C); State v. Vance, 06-452 (La.App. 5 Cir. 11/28/06), 947 So.2d 105, 109 n. 3, writ denied, 07-0152 (La.9/28/07), 964 So.2d 351.

      . Officer Green testified that he is the only person that uses his police unit, which is permanently assigned to him.

      . Officer Green testified that, unlike a civilian vehicle, the backseat of his police unit can be easily lifted or removed to check for contraband. Officer Green testified that his training from the Kenner Police Department taught him to "always check someone before you put them in a unit,” and that he goes "even further” by checking the backseat of his unit both before and after placing an arrestee there.

      . Officer Green testified that he maintained a "trip sheet” detailing his activity during his shift, including the calls he receives and the places he visits.


text:
    Frank John BENOIT, Sr. v. Cynthia Marie Zenon BENOIT.
    No. 13-CA-397.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.
    Rudy W. Gorrell, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, John D. Fitzmorris, Jr., Assistant District Attorney, Harvey, Louisiana, for Plaintiff/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

1¡¿Plaintiff, Frank J. Benoit, Sr., appeals the 24th Judicial District Court judgment dismissing his Petition to Vacate/Annul Hearing Order. For the following reasons, we vacate the judgment of the district court and remand the matter for further proceedings.

Procedural History

From the designated record before this Court, the procedural and factual posture of this case is as follows:

On July 11, 2005, Mr. Benoit filed a Rule to Recalculate and Reduce Child Support (hereinafter “Rule ”) in Division “K” of the 24th Judicial District Court. The district court set the Rule for a hearing on August 24, 2005. The minute entry of August 24, 2005, reflects that only Mr. Benoit was present on that date and the matter was continued. Several days later, Hurricane Katrina struck the Gulf Coast and the court was closed for an extended period of time. Due to this closure and Mr. Benoit’s inability to serve Ms. Benoit, the matter was subsequently continued. Mr. Benoit filed motions to reset his Rule on November 14, 2005, and February 1, 2006. On August 16, 2006, with Mr. Benoit’s counsel present in open court, the hearing on the Rule was continued without date.

| -¡Thereafter, on September 20, 2006, following a hearing on Ms. Benoit’s Motion for Contempt and to Make Delinquent Child Support Executory, the domestic hearing officer recommended that Mr. Be-noit’s Rule be dismissed due to his failure to appear.

On April 29, 2009, the matter of support was transferred to juvenile court for consolidation due to the Louisiana Department of Children and Family Services’ action against Mr. Benoit for failure to pay child support. On September 15, 2009, Mr. Benoit again filed a motion in juvenile court to reset the July 11, 2005 Rule. On May 13, 2010, the juvenile court judge ruled that Mr. Benoit’s Rule was abandoned prior to the matter being transferred to juvenile court under La. C.C.P. art. 561.

On July 26, 2012, Mr. Benoit returned to the 24th Judicial District Court, wherein he filed a Petition to Vacate!Annul Hearing Order, praying that the district court vacate and annul the September 20, 2006 recommendation of the domestic hearing officer dismissing his Rule. Mr. Benoit asserted that the dismissal of his Rule was a nullity because he was not served or given notice of the September 20, 2006 hearing. On October 26, 2012, the district court conducted a hearing and dismissed Mr. Benoit’s petition. This appeal follows.

Discussion

In his sole assignment of error, Mr. Benoit asserts that the district court erred in dismissing his Petition to Vacate/Annul the September 20, 2006 domestic hearing officer recommendation dismissing his Rule. In dismissing Mr. Benoit’s petition, the district court found that the Rule was abandoned and no basis existed to annul or vacate the Rule based upon fraud or ill practice.

[4In the designated record before us, an August 24, 2005 order reflects that the Honorable Martha Sassone ordered that Mr. Benoit’s child support obligation be decreased from $985.00 per month to $674.00 per month to be made effective immediately. In brief to this Court, neither party references the order and it is apparent from the transcript that the district court did not consider the order in ruling on Mr. Benoit’s petition. While the August 24, 2005 minute entry reflects that the matter was continued, the signed order of the district court prevails. See Dalby v. U.S. Fidelity & Guaranty Co., 365 So.2d 568, 571 (La.App. 1 Cir.1978); Martin v. Metropolitan Life Ins. Co., 516 So.2d 1227, 1231 (La.App. 2 Cir.1987).

We find that the district judge erred in failing to consider the August 24, 2005 order, decreasing Mr. Benoit’s child support obligation and the effects of such order, whatever they may be, on the instant proceedings.

Decree

Considering the foregoing, we vacate the judgment of the district court dismissing Mr. Benoit’s Petition to Vacate/Annul Hearing Order and remand the matter to the district court for further proceedings consistent with this opinion.

VACATED & REMANDED.

      . From the designated record, it does not appear that Mr. Benoit received notice to appear on that date, nor does it appear that Mr. Benoit’s Rule was set for that date.

      . The judgment of the juvenile court is not before this Court on appeal.

      . The designated record before us does not reflect that either party was served with notice of the district court’s August 24, 2005 order decreasing Mr. Benoit’s support obligation. See La. C.C.P. art. 1913; Potter v. Patterson, 96-1172 (La.App. 4 Cir. 3/19/97), 690 So.2d 1118. As such, time delays for taking an appeal of the judgment have not yet run under La. C.C.P. arts. 2087 and 2123.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Miguel N. BARNES v. Lashaunda JACOB.
    No. 13-CA-596.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.
    Justin Caine Harrell, Attorney at Law, New Orleans, Louisiana, Counsel for Plaintiff/Appellant.
    Richard J. Richthofen, Jr., Attorney at Law, New Orleans, Louisiana, Counsel for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and ROBERT M. MURPHY.
   FREDERICKA HOMBERG WICKER, Judge.

12Appellant, Miguel Barnes, appeals the trial court’s denial of his motion for change of custody. Because we find the mental health evaluator’s report was never introduced into evidence for consideration by the trial court, we vacate the appealed judgment and remand this matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Barnes and Ms. Jacob share joint custody of their two minor children. On June 3, 2010, the parties entered into a Consent Judgment, providing that they would share joint custody of the minor children and further stipulating that Ms. Jacob would be named the domiciliary parent. Mr. Barnes subsequently filed a Motion for Change of Custody, seeking to be named the domiciliary parent of the minor children. The parties appeared before a hearing officer, who recommended that Mr. Barnes’ motion for change of custody be denied and further recommended the appointment of a Parenting Coordinator to facilitate communication between the parties.

[ 3Mr. Barnes objected to the hearing officer’s recommendation and, on July 17, 2012, the trial court conducted a hearing. On that date, the trial judge indicated that he.would not entertain a motion for modification of custody unless the parties underwent a full custody evaluation by a mental health expert, to which the parties agreed. Following the evaluation, Mr. Barnes filed a “Motion to Reset Custody Hearing,” and on May 28, 2013, the trial court conducted a hearing on Mr. Barnes’ motion. On that date, Mr. Barnes argued that the custody evaluation report recommended modification to the current custody arrangement and further recommended that Mr. Barnes be designated the domiciliary parent. Counsel for Ms. Jacob challenged the evaluator’s report, asserting that the evaluator relied on events that occurred prior to the parties’ consent judgment and that no material change in circumstances existed to warrant a modification of custody. The trial judge found that Mr. Barnes failed to prove a material change in circumstances and denied his motion for change of custody. Mr. Barnes appeals.

DISCUSSION

Upon review of the record in this matter, we find that the mental health expert’s custody evaluation report was not formally introduced into evidence at the May 28, 2013 hearing. The transcript reflects that consideration of the evaluator’s report, ordered by the trial judge, was critical to a determination of whether a change in custody was warranted in this case.

The Louisiana Supreme Court has instructed that “[ejvidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record.” Denoux v. Vessel Mgmt. Services, Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88-89. Further, “[ajppellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.” Id.; La. C.C.P. art. 2164. Because the appealed judgment clearly required the trial judge to consider the mental health evaluator’s report, which was not formally introduced into evidence, we vacate the trial court’s judgment and remand for further proceedings. See Sheffie v. Wal-Mart Louisiana, LLC, 11-1038 (La.App. 5 Cir. 5/31/12), 92 So.3d 625, 630; Rudolph v. D.R.D. Towing Co., LLC, 10-629 (La.App. 5 Cir. 1/11/11), 59 So.3d 1274, 1278; Brielle’s Florist & Gifts, Inc. v. Trans Tech, Inc., 11-260 (La.App. 3 Cir. 10/5/11), 74 So.3d 833, 836.

The trial court’s May 28, 2013 judgment is hereby vacated and this matter is remanded for further proceedings.

VACATED AND REMANDED.

      . Mr. Barnes also filed a motion for contempt against Ms. Jacob, which the trial court denied, alleging that she failed to comply with the consent judgment between the parties. Mr. Barnes has not appealed that judgment and that issue is not before this Court.

      . The trial judge signed an Interim Judgment adopting the hearing officer’s recommendations. On May 11, 2012, the court issued an Interim Judgment and Stipulated Judgment, whereby the trial judge denied Mr. Barnes' motion for change of custody and wherein the parties stipulated to the appointment of a Parenting Coordinator and that no other individuals, other than Mr. Barnes and Ms. Jacob, would be allowed to physically discipline the children.

      . At the May 28, 2013 hearing, Mr. Barnes appeared in proper person.

      . The record contains a June 3, 2010 consent judgment between the parties. In briefs to this Court, the parties also reference a second consent judgment dated March 25, 2011. However, the March 25, 2011 consent judgment referenced by the parties is not included in the record provided to this Court.


author: ROBERT M. MURPHY, Judge.

text:
    STATE of Louisiana v. Hassan A. ABDUL.
    No. 13-KA-566.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.

      Paul D. Conniek, Jr., District Attorney, Twenty-Fourth Judicial District Parish Of Jefferson, Terry M. Boudreaux, Gail D. Schlosser, J. Brandon Kinnett, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, Louisiana, for Defen-danl/Appellant.
    Panel composed of Judges ROBERT A. CHAISSON, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT M. MURPHY, Judge.

|2In this second appeal, defendant, Has-san A. Abdul, appeals his March 6, 2013 adjudication and sentencing as a second felony offender. The underlying facts are set forth in this Court’s previous opinion in State v. Abdul, 11-863 (La.App. 5 Cir. 4/24/12), 94 So.3d 801, writs denied, 12-1224 (La.10/12/12), 99 So.3d 41, and 12-1226 (La.10/12/12), 99 So.3d 41, and are not relevant to the calculations of the multiple bill cleansing period presented here. For the following reasons, we affirm defendant’s second felony offender status and sentencing.

PROCEDURAL HISTORY

On August 19, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, Hassan A. Abdul, with attempted second degree murder in violation of La. R.S. 14:27 and 14:30.1 (Count 1), and possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1 (Count 2). The trial judge granted defendant’s motion to sever the two counts on May 2, 2011. On May 3 and 4, 2011, the matter proceeded to trial on the attempted second degree Rmurder charge only, and a 12-person jury unanimously found defendant guilty as charged. Abdul, 11-863, at 3-4, 94 So.3d at 807.

On May 16, 2011, defendant filed a motion for a new trial, which was denied that same day. The trial judge then sentenced defendant to imprisonment at hard labor for 25 years. The State subsequently filed a multiple bill alleging defendant to be a second felony offender, and defendant denied those allegations. After a hearing on May 16, 2011, the trial judge found defendant to be a second felony offender. The trial judge then vacated defendant’s original sentence and resentenced him under the multiple bill statute to imprisonment at hard labor for 25 years without the benefit of parole, probation, or suspension of sentence. Abdul, 11-863 at 3-4, 94 So.3d at 807.

Also on May 16, 2011, defendant withdrew his not guilty plea as to Count 2 and pled guilty as charged. The trial judge then sentenced defendant to 10 years imprisonment at hard labor on Count 2 without the benefit of parole, probation, or suspension of sentence, to run concurrently with the sentence on Count 1 and any other sentence being served by defendant. On May 18, 2011, defendant filed a timely motion for appeal that was granted. Abdul, 11-863 at 3-4, 94 So.3d at 807.

On April 24, 2012, this Court affirmed defendant’s conviction of attempted second degree murder; however, it vacated defendant’s adjudication as a multiple offender and the enhanced sentence imposed in connection therewith, reinstated and affirmed the sentence originally imposed on defendant as a result of his conviction of attempted second degree murder, and remanded for further proceedings. Abdul, 11-863 at 30-31, 94 So.3d at 822.

On January 23, 2013, the State filed another multiple bill alleging defendant to be a second felony offender, and defendant denied those allegations. Defendant subsequently filed two pleadings which were State’s both entitled “Objection to | introduction of Documents and/or Evidence of Prior Conviction” that were denied. On March 6, 2013, he filed a motion to quash the multiple bill that was also denied. On that same date, a multiple bill hearing was held, after which the trial judge found defendant to be a second felony offender. The trial judge vacated the sentence on Count 1 and resentenced defendant under the multiple bill statute to imprisonment at hard labor for 25 years without benefit of parole, probation, or suspension of sentence to run concurrently with the sentence on Count 2 and any other sentence that defendant was serving. On March 21, 2013, defendant filed a notice of intent to seek supervisory writs that was construed as a timely motion for appeal and was granted.

In his single assignment of error, defendant contends that the evidence at the hearing on the multiple bill was insufficient to support the adjudication as it failed to prove that the date of actual discharge from State supervision was within the ten-year cleansing period.

DISCUSSION

Defendant contends that the State failed to prove that the ten-year cleansing period had not run since actual discharge from State supervision. Defendant asserts that his testimony established that his probation officer released him from supervision in December of 1998, more than ten years before he committed the instant offense on May 24, 2009. Also, defendant asserts that his testimony was corroborated by an April 15, 1998 minute entry which shows his case was closed on that date.

The State responds that the trial court properly adjudicated defendant to be a second felony offender. The State contends that the testimony of Agent James Seymour established that defendant’s probation terminated on July 16, 2000, well 15within ten years of the date defendant committed the instant offense on May 24, 2009.

In his first appeal, defendant argued that the trial judge erred by finding him to be a second felony offender. This Court agreed, finding that the evidence was insufficient to prove that defendant was a second felony offender. In its opinion, this Court noted that on February 27, 1997, defendant pled guilty to second degree battery, and on July 16, 1997, the trial judge sentenced defendant to imprisonment at hard labor for three years, suspended, and three years active probation. This Court further noted that the underlying offense was committed on May 24, 2009; thus, more than the ten-year cleansing period had elapsed between defendant’s conviction on the 1997 predicate felony and his commission of the subsequent offense. As such, this Court asserted that the State was required to prove that the subsequent offense was committed within ten years of defendant’s release from state custody; however, there was nothing in the record to show the date of discharge from state custody. Therefore, this Court vacated the multiple offender adjudication and enhanced sentence and determined that the State could “retry” defendant as a multiple offender since double jeopardy principles were inapplicable to sentence enhancement proceedings. Abdul, 11-863 at 29, 94 So.3d at 821.

The State filed another multiple bill alleging defendant to be a second felony offender. At the multiple bill hearing, Sergeant Joel O’Lear, an expert latent fingerprint examiner, testified that he took defendant’s fingerprints in court and compared them to the fingerprints on a bill of information contained in a certified conviction packet from Orleans Parish, after which he concluded that the fingerprints matched.

| fiJames Seymour, a probation and parole agent with the Department of Public Safety and Corrections, testified that he brought a copy of defendant’s probation file with him to court. He explained that the original file was destroyed during Hurricane Katrina and that the current file had been recreated from court documents and a database known as “CAJUN.” Agent Seymour further testified that the documents in the file indicated defendant completed probation with their office on July 16, 2000. The file was admitted into evidence as State’s Exhibit 4. On cross-examination, Agent Seymour asserted that the start date on defendant’s sentence was July 16, 1997, and that he was given a three-year sentence. Agent Seymour also asserted that he was not defendant’s probation officer in 1997 or 2000, and that he was not privy to any conversations between defendant’s probation officer and defendant.

Defendant testified that he was initially ordered to be on probation for three years, but that his probation officer, Clifford Provost, vacated his probation in December of 1998. Defendant claimed that his probation officer changed his probation from active to inactive because he went to Virginia to work at the Newport Shipyard and because he did well on his probation and stayed out of trouble. Defendant asserted that his probation officer gave him a printout of his early dismissal but that it was destroyed. On cross-examination, defendant admitted that on February 27, 1997, he pled guilty to second degree battery in Orleans Parish in case number 384-810. He further admitted that he did not go to court to have his probation terminated, and that a court did not terminate or modify his probation.

Following defendant’s testimony, the State argued that it had established that defendant was the same person who was convicted of the predicate felony and that the ten-year cleansing period had not yet run between the predicate felony 17conviction and the instant conviction. Defense counsel responded that the probation officer had discretion to release defendant early from probation. The trial judge disagreed and took judicial notice that a probation officer did not have the right to terminate someone’s probation early. Defense counsel argued that the State did not prove beyond a reasonable doubt that defendant’s probation did not end early as defendant testified.

After considering the testimony and the arguments of counsel, the trial judge found defendant to be a second felony offender. The trial judge said that once a hard labor sentence started, a court did not have the authority to amend that sentence. She also said that the Department of Probation and Parole did not have the authority to amend a sentence without court approval. Next, the trial judge stated that according to the probation record, defendant’s probation ran from 1997 through July 16, 2000. She noted that although defendant might not have had contact with his probation officer for the past year and a half, he was still on probation even if he was on inactive status. After reviewing defendant’s file, the trial judge found that the time period between the end of defendant’s probation and the arrest on the current charge was less than ten years and, therefore, the State had proven that defendant was a second felony offender.

The State bears the burden of proving that the predicate convictions fall within the “cleansing period” prescribed by La. R.S. 15:529.1(C). State v. Hollins, 99-278, p. 21 (La.App. 5 Cir. 8/31/99), 742 So.2d 671, 685, writ denied, 99-2853 (La.1/5/01), 778 So.2d 587. This ten-year “cleansing period” begins to run from the date that a defendant is actually discharged from state custody and supervision. State v. Anderson, 349 So.2d 311, 314 (La.1977); State v. Thomas, 04-1341, 04-1342, p. 15 (La.App. 5 Cir. 5/31/05), 904 So.2d 896, 906, writ denied, 05-2002 (La.2/17/06), 924 So.2d 1013. Thus, the commencement of the “cleansing period” |8is from the date of discharge from state supervision because the discharge can take place earlier than the theoretical date on which the sentence would have terminated due to pardon, commutation or good time credit, or it could take place later because of parole revocation. State v. Humphrey, 96-838, p. 13 (La.App. 5 Cir. 4/29/97), 694 So.2d 1082, 1088, writ denied, 97-1461 (La.11/7/97), 703 So.2d 35. However, if less than the “cleansing period” has elapsed between a defendant’s conviction on a predicate felony and his commission of a subsequent predicate felony, the State need not prove the date of discharge on the earlier sentence in the habitual offender proceedings. State v. Brooks, 01-864, p. 12 (La.App. 5 Cir. 1/29/02), 807 So.2d 1090, 1101.

In the instant ease, the record shows that defendant pled guilty to second degree battery on February 27, 1997, and that he received a three-year suspended sentence and three years of active probation on July 16, 1997. The underlying offense was committed on May 24, 2009. Agent Seymour testified that defendant’s probation terminated on July 16, 2000, and information contained in defendant’s probation file corroborates the agent’s testimony. Even though defendant testified that his probation officer terminated his probation early, the trial judge took judicial notice that a probation officer did not have the right to do so. Also, the record does not reflect that a court terminated defendant’s probation early pursuant to La.C.Cr.P. art. 897. Additionally, although defendant asserts that his testimony was corroborated by an April 15, 1998 minute entry which shows his case was closed on that date, the docket master in State’s Exhibit 3 shows that on April 20, 1998, the entry read, “Disregard the minute entry of 4/15/98.”

|9In light of the foregoing, we find that the trial judge did not err in finding that the State proved that the time period between defendant’s discharge from state supervision and the commission of the subsequent offense was less than ten years and, therefore, the evidence was sufficient to prove that defendant was a second felony offender.

This assignment of error lacks merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent.

AFFIRMED.

      . La.C.Cr.P. art. 897 provides that "[i]n a felony case the court may terminate the defendant’s probation and discharge him at any time after the expiration of one year of probation." (Emphasis added).

      . It is noted that this is defendant’s second appeal. Defendant received an error patent review upon his original appeal; therefore, he is not entitled to a second error patent review of his underlying conviction and sentence. However, the record on appeal regarding defendant’s habitual offender proceedings and sentencing was reviewed. See State v. Smith, 12-580, p. 9 (La.App. 5 Cir. 12/27/12), 106 So.3d 1265, 1270 n. 3, writ denied, 13-333 (La.9/13/13), 120 So.3d 280. But see State v. Moore, 12-102 (La.5/25/12), 90 So.3d 384, writ denied, 11-2476 (La.6/22/12), 90 So.3d 455, finding that a habitual offender hearing should not be considered part of the record for purposes of error patent review and that a defendant must assign as error any perceived defect in the proceedings to preserve appellate review of the claimed error.


author: MARC E. JOHNSON, Judge.

text:
    Judy A. COPPING v. WAUSAU BUSINESS INSURANCE COMPANY, Great Southern Wood Preserving, Inc., Gary E. Gibbs, AIG Insurance company and Gary P. Copping.
    No. 2013-CA-342.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.
    D. Russel Holwadel, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT M. MURPHY and STEPHEN J. WINDHORST.
   MARC E. JOHNSON, Judge.

| ¡Appellants, Employers Insurance of Wausau, Great Southern Wood Preserving, Inc. and Gary E. Gibbs, filed this appeal seeking review of a judgment that found them liable in a three-vehicle accident from the 24th Judicial District Court, Division “N”. For the following reasons, we dismiss the appeal with prejudice.

On the morning of May 23, 2004, Gary Copping and his wife, Judy Copping, were traveling westbound in the right lane of Interstate-10 between the Clearview Parkway and Veterans Memorial Boulevard exits in their 1997 Mitsubishi Galant. They were heading toward Mr. Copping’s place of employment located on Veterans Memorial Boulevard. As they were proceeding toward the Veterans Memorial Boulevard exit, Mr. Copping’s vehicle was struck on the driver’s side by a 1997 Freightliner 80000 tractor trailer operated by Gary Gibbs. Subsequently, as it was spinning counter clockwise, Mr. Copping’s vehicle was struck again on the rear' passenger side by a 2002 Chevrolet Corvette traveling in the far left lane. All of the vehicles involved in the accident were driven to the side of the interstate to clear traffic prior to the arrival of the investigating officer. Mrs. Copping was the only person involved in the accident who was transported to the hospital by an ambulance.

Mrs. Copping filed a Petition for Personal Injuries on February 17, 2004 against Appellants, her husband, and her husband’s car insurance company, AIG | ^Insurance Company. In her petition, Mrs. Copping alleged that while Mr. Copping was driving in a prudent manner in the right lane of traffic, Mr. Gibbs hit the rear of the car, causing it to spin around. After being hit in the rear, Mrs. Copping alleged the vehicle was struck a second time by Mr. Gibbs, which caused the vehicle to be hit a third time in the left lane. In a cross-claim filed on April 8, 2004, Mr. Copping sued Appellants and his insurance company. Mr. Copping raised the same allegations in his claim of how the accident occurred that Mrs. Copping raised in her petition.

The parties agreed to bifurcate the issues of liability and damages. The trial on liability on Mr. Copping’s cross-claim was held on October 9, 2012. In a judgment rendered on October 15, 2012, the trial court found in favor of Mr. Copping on his cross-claim for liability against Appellants. On October 22, 2012, Appellants filed a Motion for New Trial, alleging the trial court’s judgment was erroneous because it could not be supported by the factual evidence found on Mr. Gibbs’ truck on the date of the accident. The motion was heard on November 27, 2012 and was denied by the trial court on December 27, 2012. The instant appeal followed.

On October 31, 2013, subsequent to the submission of the case to this Court, the parties to this matter filed a Joint Motion to Dismiss Appeal. The parties asserted the matter has been completely settled, and the matter is no longer in need of consideration. Pursuant to La. C.C.P. art. 2162, an appeal can be dismissed at any time by consent of all parties. Therefore, we grant the Joint Motion to Dismiss Appeal and dismiss the appeal with prejudice.

APPEAL DISMISSED.

      . The matter was considered as submitted to this Court on October 1, 2013 for the rendering of an opinion.


author: MADELEINE M. LANDRIEU, Judge.

text:
    Chinita WEBER, Individually and o/b/o her Deceased Aunt, Mary London, and on Behalf of All Others Similarly Situated v. METROPOLITAN COMMUNITY HOSPICE FOUNDATION, INC., and Metropolitan Hospice, Inc.
    No. 2013-CA-0182.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 2013.

      Mark Edward Morice, Morice Law Firm, APLLC, Gretna, LA, for Plain-tiffAppellant.
    Timothy Gregory Schafer, Rachel L. Flarity, Schafer & Schafer, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

hThe plaintiff, Chinita Weber, appeals the trial court’s judgment that dismissed her petition upon the granting of exceptions of no right of action and prescription filed by the defendant, Metropolitan Hospice, Inc. (“Metropolitan”). For the reasons that follow, we reverse the trial court’s judgment in part and remand the matter to that court.

FACTS AND PROCEEDINGS BELOW

On August 4, 2006, Ms. Weber filed suit alleging wrongful death and survival claims on behalf of her aunt, Mary London, one of eight people who died at Metropolitan Hospice during the week following Hurricane Katrina’s landfall on August 29, 2005. Ms. Weber alleged that Metropolitan was negligent in failing to evacuate the residents of its facility and in failing to provide an adequate source of backup electrical power, thus exposing those in the facility to extreme heat and unsanitary conditions, which ultimately caused her aunt’s death. Ms. Weber’s suit, originally pled as a class action, was consolidated in the trial court with | ¡.similar actions filed against Metropolitan by families of the other deceased individuals.

Metropolitan raised an exception of no right of action asserting that Ms. Weber was not the proper party to file an action on behalf of her aunt. The exception was based upon the Louisiana Civil Code articles that specify which parties have the right to bring a wrongful death action and a survival action, respectively, on behalf of a deceased person. According to Article 2315.2, the right to bring a wrongful death action inures successively to: 1) the deceased’s surviving spouse and/or children; 2) the deceased’s surviving father and/or mother; 3) the deceased’s surviving brothers and/or sisters; and 4) the deceased’s surviving grandfather and/or grandmother. Article 2315.1 provides that the right to recover damages for injury to the deceased person or his property (the survival action) is granted to the same classes of beneficiaries listed above in the same successive order, and that in the absence of any of these classes, the right to bring the action is granted to the deceased’s succession representative.

The trial court granted the exception of no right of action and dismissed the case. Ms. Weber filed a motion for new trial asking that she be afforded time to amend her petition to state a right of action. The trial court gave her thirty days to amend. On February 24, 2011 Ms. Weber filed an amending petition in her new capacity as the representative of her aunt’s succession. [.¡Metropolitan then filed an exception of no right of action as to the wrongful death claim asserted by Ms. Weber and an exception of prescription as to the survival claim. The trial court granted both exceptions from the bench without an evidentia-ry hearing and signed a written judgment to this effect on July 15, 2011. Ms. Weber filed a motion for new trial and a request for written reasons for judgment in early August, 2011. The trial court denied the motion without a hearing on August 11, 2011. On August 30, 2011, the trial court issued written Reasons for Judgment that addressed only the court’s basis for denying the new trial, not its reasons for the underlying judgment granting the exceptions. Ms. Weber now appeals the July 15, 2011 judgment dismissing her action upon the granting of Metropolitan’s exceptions.

ISSUES

In her appellant brief Ms. Weber states that she has listed “multiple possible Errors and corresponding Issues for review due to a lack of knowledge of any reason(s) that the district court granted the exceptions ....” In our view, the issues that warrant discussion are as follows:

(1) Whether the trial court erred by granting the exception of no right of action as to the survival claim;
(2) Whether the trial court erred by finding that Ms. Weber’s amended petition, filed in her capacity as succession representative, does not “relate back” to Cher timely filed original petition, and that, therefore, her survival action is prescribed.

DISCUSSION

I. Exception of No Right of Action

The exception of no right of action tests whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927(5); Indus. Companies, Inc. v. Durbin, 2002-0665, p. 11 (La.1/28/03), 837 So.2d 1207, 1216. The function of the exception is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the lawsuit. Id. (citing Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015, p. 5 (La.11/30/94), 646 So.2d 885, 888). The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Id., p. 12, 837 So.2d at 1216. Evidence is admissible on the trial of an exception of no right of action to “support or controvert any of the objections pleaded, when the grounds therefor do not appear from the petition.” La.Code Civ. Proc. art. 931. Id.

Whether a party has a right of action is a question of law. Brednich v. Bourbon Nite-Life, LLC, 2012-1209, p. 3 (La.App. 4 Cir. 12/19/12), 108 So.3d 235, 238, writ denied, 2013-0168 (La.3/1/13), 108 So.3d 1182 (citing Acorn Community Land Ass’n of Louisiana, Inc. v. Zeno, 05-1489, p. 3 (La.App. 4 Cir. 6/21/06), 936 So.2d 836, 838). An appellate court reviews questions of law by 15making a determination as to whether the trial court was legally correct or legally incorrect. Id., p. 4, 108 So.3d at 238.

On appeal, Ms. Weber does not challenge the dismissal of her wrongful death claim, only the dismissal of her claim for the damages suffered by her aunt while she remained alive in the Metropolitan facility (the survival action). Because the trial court correctly dismissed the wrongful death claim on the basis that Ms. Weber does not have a right of action under Louisiana Civil Code article 2315.2, we affirm the judgment insofar as it dismissed that claim.

The trial court erred, however, by granting the exception of no right of action with regard to the survival claim. As noted previously, Louisiana Civil Code article 2315.1 provides that in the absence of a surviving spouse, child, sibling or grandparent of the deceased, a claim alleging injury to the deceased or his property may be urged by the deceased’s succession representative. Because Ms. London died without a surviving relative in any of the categories listed in article 2315.1, only her succession representative would have a right of action. Because Ms. Weber’s amended petition was filed in her capacity as Ms. London’s succession representative, the exception of no right of action was wrongly granted as to the survival claim. We therefore reverse the judgment in that respect.

II. Exception of Prescription

Prescription is a peremptory exception. La. C.C.P. art. 927. When the exception of prescription is raised in the trial court prior to trial of the case, evidence may be introduced to support or controvert it. La. C.C. P. art. 931. If evidence is introduced, the trial court’s findings of fact are reviewed according to |fithe manifest error standard. London Towne Condo. Homeowner’s Ass’n v. London Towne Co., 2006-401, p. 4 (La.10/17/06), 939 So.2d 1227, 1231. However, when, as here, no evidence is introduced, the appellate court simply determines whether the trial court’s finding was legally correct or incorrect. Dugas v. Bayou Teche Water Works, 2010-1211, pp. 4-5 (La.App. 3 Cir. 4/6/11), 61 So.3d 826, 830. In applying this standard, the law requires that we strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. Coston v. Seo, 2012-0216, p. 8 (La.App. 4 Cir. 8/15/12), 99 So.3d 83, 88.

Louisiana Civil Code article 2315.1 provides that an action for injury to the deceased or his property “shall survive for a period of one year from the death of the deceased....” Although Ms. Weber’s original petition was filed on August 4, 2006, and therefore within one year of her aunt’s death, Ms. Weber’s amended petition in her capacity as succession representative was not filed until February 24, 2011. Therefore, we must determine whether the amended petition “relates back” to the original, timely-filed petition for purposes of defeating prescription.

Louisiana Code of Civil Procedure article 1153 states:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

In Giroir v. South Louisiana Medical Center, Division of Hospitals, 475 So.2d 1040, 1041 (La.1985), the Louisiana Supreme Court set forth the four factors that must be considered in determining whether an amended petition adding or substituting a plaintiff relates back to a timely-filed original petition for purposes of defeating prescription. The Court stated:

17[A]n amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense.

Id. at 1044.

In Giroir, the Court held that an amended petition filed by a husband in his individual capacity asserting a survival claim on behalf of his deceased wife related back to the original petition filed by the husband in his capacity as administrator of his wife’s succession. In so holding, the Court reasoned:

The problem of relation back of amendments involving a change in the capacity of the parties is less difficult. Where a plaintiff only seeks to change the capacity in which the action is brought, or in which defendant is sued, because there is no change in the parties, and because all parties are on notice of the facts out of which the claim arose, an amendment will relate back to the date of the original pleading absent prejudice due to the delay in filing.
Applying these precepts, we conclude that the actions asserted in the Giroirs’ amended petition all relate back to the date of filing of the original petition. With respect to Mr. Giroir, the amendment only sought to change the capacity in which he brought the survival action. Because Mr. Giroir was already before the court in a different capacity ... and because the defendants already were on notice of the facts out of which his claim arose, there was no prejudice to the defendant and the amendment clearly related back.

Id., 475 So.2d at 1044-45 (Citations omitted).

|RThe case before us is factually analogous to Giroir. Ms. Weber’s amended petition arises out of the same occurrence (her aunt’s death) as the original petition; the defendants were put on notice of the essential facts of the claim and of Ms. Weber’s involvement at the time the original petition was filed; and the defendants have failed to demonstrate that they would be unduly prejudiced by the delay in filing.

In opposition to Ms. Weber’s appeal, the defendants rely upon Estate of Robinson v. Continental Cas. Co., 44,952 (La.App. 2 Cir. 3/3/10), 31 So.3d 1194. In that case, the Second Circuit held that an amended survival petition naming the adult children of the decedent as plaintiffs did not relate back to the original petition filed by one of the children in her capacity as the succession representative. The petition alleged that the decedent’s attorney had committed legal malpractice by failing to timely file her personal injury lawsuit, and that this failure had caused the decedent to commit suicide. The case before us is not analogous to Estate of Robinson because that case did not involve a prescriptive period, but rather the statutory peremptive period applicable to legal malpractice claims. Unlike prescription, the running of a peremptive period cannot be renounced, suspended or interrupted. Jenkins v. Starns, 2011-1170, p. 26 (La.1/24/12), 85 So.3d 612, 627.

Accordingly, based on Giroir, Ms. Weber’s amended petition relates back to the filing of her original petition for purposes of defeating prescription. To the extent that the trial court found otherwise, it erred.

As the trial court failed to give reasons for its granting of the exception of prescription, Ms. Weber alternatively argues, and the defendants refute, that the |9trial court erred by finding that the amended petition could not relate back because the cause of action asserted is one of medical malpractice. The Louisiana Supreme Court has held that medical malpractice actions are not subject to the general Code of Civil Procedure articles allowing “relation back,” but rather to the specific time limits set forth in La. R.S. 9:5628 as applicable to actions filed pursuant to the Louisiana Medical Malpractice Act (“LMMA”). Warren v. Louisiana Medical Mut. Ins. Co., 2007-0492 (La.12/2/08), 21 So.3d 186. On rehearing in Warren, the Supreme Court held:

Because medical malpractice actions are governed by the specific provisions of the Act regarding prescription and suspension of prescription, under Borel, we find that any general codal article which conflicts with these provisions may not be applied to such actions in the absence of specific legislative authorization in the Act. The Act has no rules allowing relation back of pleadings for medical malpractice claims. The application of Article 1158 would permit the adding of an plaintiff subsequent to the expiration of the three-year period provided for in La. R.S. 9:5628, and would read out of the statute the prescription and suspension period provisions by La. R.S. 9:5628 and La. R.S. 40:1299.47; therefore, La. C.C.P. art. 1153 may not be applied to the medical malpractice action.
Id., 2007-0492, p. 9, 21 So.3d at 207-08 (Footnote added).

According to La. R.S. 9:5628, an action that “arises out of patient care” must be filed at the latest within three years of the alleged act, omission or neglect. Therefore, if Ms. Weber’s amended petition alleged medical malpractice, it would be prescribed because it was filed more than three years after her aunt’s death.

Ms. Weber’s original petition alleged that Metropolitan, as the owners/operators of the hospice facility, were negligent in: (1) failing to evacuate its residents prior to Hurricane Katrina and/or safely transport them afterward; (2) failing to have an evacuation plan; (3) failure to have or maintain adequate backup |inpower prior, during and after the hurricane’s landfall; (4) failing to prevent or warn the residents of unreasonably dangerous conditions on the premises; and (5) failing to provide adequate hospice, “medical, nursing,” and/or other care.

Despite the conclusory allegation that the defendant failed to provide “medical” or “nursing” care, plaintiff fails to state a cause of action in medical malpractice under the LMMA. The plaintiff alleges no facts that would support such a cause of action. The only facts alleged are that Metropolitan failed to evacuate its residents and failed to have adequate backup power, thereby exposing the residents to extreme heat and unsanitary conditions. In LaCoste v. Pendleton Methodist Hosp., L.L.C., the Louisiana Supreme Court emphasized that the LMMA must be strictly construed:

Today we reiterate that the limitations on the legal liability of qualified health care providers in Louisiana, as set forth in the Louisiana Medical Malpractice Act (LMMA), are to be applied only and strictly to cases of medical malpractice as defined in the LMMA, because the LMMA’s limitations on such liability were created by special legislation in derogation of the general rights of Louisiana tort victims.

Id., 2007-0008, p. 1 (La.9/5/07), 966 So.2d 519, 521.

In LaCoste, the plaintiffs mother, who was confined to a hospital and dependent on a ventilator, died in the aftermath of Hurricane Katrina when the hospital flooded and the electrical/ backup power necessary to maintain life support systems, such as the ventilators, failed. The Court found that the failure to have an evacuation plan, to evacuate the patients, and/or to provide sufficient backup power did not fall within the ambit of the LMMA, and therefore the action did not sound in medical malpractice. Id.

|nSince LaCoste, this court has decided at least two “Katrina abandonment” cases in which the factual allegations are similar, if not identical, to those of the case before us. See: Montalbano v. Buffman Inc., 2011-0753 (La.App. 4 Cir. 3/21/12), 90 So.3d 503, writ denied, 90 So.3d 443 and 444 (La.6/1/12); and Burandt v. Pendleton Memorial Methodist Hospital, 2013-0049 (La.App. 4 Cir. 8/7/13), 123 So.3d 236. In both those cases, this court, relying on the provisions of the LMMA and citing La-Coste, held that the wrongs alleged by the plaintiffs did not amount to a cause of action in medical malpractice, but rather in general tort or premises liability. There are no material distinctions between Ms. Weber’s factual allegations and those asserted by the plaintiffs in LaCoste, Mon-talbano, and Burandt. For the same reasons set forth in those cases, we conclude that the action asserted by Ms. Weber does not sound in medical malpractice.

Therefore, to the extent that the trial court based its judgment upon a finding that Ms. Weber’s action sounds in medical malpractice (and that, therefore, the “relation back” principle is not applicable), the trial court erred.

For the aforementioned reasons, we find that the trial court erred by granting the exception of prescription as to Ms. Weber’s survival claim.

DECREE

Accordingly, we affirm the trial court’s judgment insofar as it granted the exception of no right of action as to Ms. Weber’s wrongful death claim; we reverse the trial court’s judgment insofar as it granted the exceptions of no right of action and prescription as to Ms. Weber’s survival claim; and we remand the matter to that court for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . One of the original defendants, Metropolitan Community Hospice Foundation, Inc., was dismissed by the plaintiffs in August of 2007.

      . La. C.C.P. art. 934 states, in pertinent part: 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.

      . The record indicates that Ms. Weber became the succession representative during the time the trial court granted to her to amend her petition.

      . As noted previously, the trial court never issued substantive reasons for judgment regarding its granting of the exceptions despite the plaintiff’s request for same.

      . The Giroir Court also held that the addition of Ms. Giroir's children as plaintiffs asserting survival and wrongful death claims in the amended petition related back to the timely filed original petition, reversing the appellate court on this issue. Id.

      . See La. R.S. 9:5605.

      . Borel v. Young, 2007-0419 (La.7/1/08), 989 So.2d 42.


author: JOY COSSICH LOBRANO, Judge.

text:
    Nikia ADAMS v. DEPARTMENT OF POLICE.
    No. 2013-CA-0200.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 2013.

      Claude A. Schlesinger, C. Theodore Al-paugh, III, Kristie D. Holm, Guste, Barnett, Schlesinger, Henderson & Alpaugh, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Sharonda R. Williams, Chief of Litigation, Elizabeth S. Robins, Assistant City Attorney, Shawn Lindsay, Assistant City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| Niki a Adams (“Adams”), an employee of the New Orleans Police Department (“NOPD”) classified as a Police Officer IV, timely appealed the decision of the New Orleans Civil Service Commission (“CSC”), upholding her termination by Superintendent Roñal Serpas (“Supt. Serpas”), the appointing authority. Supt. Serpas terminated Adams for violating NOPD internal rules regarding adherence to state law after she pled nolo contendere to two misdemeanor counts of simple cruelty to animals in the 40th Judicial District Court for St. John the Baptist Parish. For the following reasons, we affirm the decision of the CSC.

|2The facts leading up to Adams’ termination are as follows. In October 2009, Adams and her boyfriend resided in a house in LaPlace, Louisiana, along with his two dogs, “Tyson” and “Dusty.” At some point, her boyfriend had to leave their home for an extended period of time, leaving the dogs in Adams’ care. In early January of 2010, Adams noticed the dogs were rapidly losing weight despite their daily feedings. She called her boyfriend, who recommended that she increase the food portions. He also told her that he would bring the dogs to a veterinarian within two weeks if they continued to lose weight.

Shortly thereafter, Dusty, a pit bull, died. Adams, who was four months pregnant and concerned the dogs might have contracted a disease, called the St. John the Baptist Parish Animal Control Unit. Initially, the Animal Control Unit said they could not assist Adams, but when she explained that the other dog in her care appeared to be sick, they agreed to help. The Animal Control Unit officers went to the home, interviewed Adams, observed the area where the dogs were kept, and then left with the remains of the deceased dog.

The following day, on January 21, 2010, Adams was arrested pursuant to a warrant issued by the St. John the Baptist Parish Sheriffs Office, relative to one count of aggravated animal cruelty and one count of simple animal cruelty. On that same date, upon learning of Adams’ arrest, Captain John Thomas of the NOPD Public Integrity Bureau (“PIB”) sent Sergeant Janerio Sanders (“Sgt. Sanders”) to St. John the Baptist Parish jail to investigate the matter. Sgt. Sanders |3spoke to Adams at that time and informed her that she was under investigation by the PIB.

Subsequently, a necropsy report from the Louisiana Animal Disease Diagnostic Laboratory established that Dusty had died as a result of severe heart worms. Notably, the report indicated the dog had been well fed.

The St. John the Baptist Parish District Attorney’s Office filed a bill of information on March 5, 2010, charging Adams with two counts of simple cruelty to animals for failing to provide veterinary care. On September 16, 2010, Adams entered a nolo contendere plea to both counts, and was sentenced to ninety (90) days suspended and ordered to perform eighty (80) hours of community service and to pay court costs and a fine. On October 21, 2010, Sgt. Sanders sent Adams written notice pursuant to La. R.S. 40:2531(B)(7), outlining the sustained charges of misconduct and notifying her that the administrative investigation was complete. October 27, 2010, Adams had the opportunity to present facts in mitigation and to explain her conduct at a hearing before NOPD Assistant Superintendent Marlon Defillo (“Asst. Supt. Defillo”). Later that same day, Supt. Serpas issued Adams a disciplinary letter, terminating her employment.

Adams appealed this decision, asserting unlawful termination for lack of cause. A hearing was held before the CSC Hearing Examiner on July 6, 2011. On October 26, 2012, the CSC denied Adams’ appeal, finding the NOPD established |4by a preponderance of evidence that it had disciplined Adams for cause and that it had not abused its discretion by terminating her based on her admission to two misdemeanors, even though they were unrelated to her job.

Adams timely appealed, raising four assignments of error.

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

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

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

In the first assignment of error, Adams argues the CSC erred in upholding her termination because the appointing authority failed to prove by a preponderance of the evidence that her actions impaired the efficient operation of the public service. Adams concedes that pursuant to the NOPD Operations Manual the appointing authority has the power to discipline a police officer for pleading nolo contendere to a misdemeanor. However, she claims the misdemeanor must have impaired the efficient operation of the department. She contends that Supt. Serpas failed to testify how her pleading nolo contendere to two counts of simple cruelty to animals, based on neglect, impaired the efficient operation of the NOPD. Adams points out that the underlying violations occurred in St. John the Baptist Parish while she was off duty and were unrelated to her duties as a police officer.

In Regis v. Department of Police, 2013-1124 (La.6/28/13), 121 So.3d 665, the NOPD issued a letter of reprimand to an officer who admitted violating La. R.S. 32:361.1 while off duty by driving her personal vehicle with tinted windows without a mandated security exemption from the Louisiana State Police. The officer appealed her discipline to the CSC; the appeal was denied. The officer then appealed the CSC’s decision to this Court, arguing the NOPD failed to offer any testimony or other evidence to prove that her actions impaired the efficient operation of the police department. This Court agreed and reversed the CSC, concluding that a violation of a public safety statute, alone, was not sufficient to prove the officer’s dereliction had impaired the efficient operation of the NOPD. On a writ application from the NOPD, the Louisiana Supreme reversed and reinstated the CSC judgment, upholding .the discipline. Id., p. 3, 121 So.2d at 666. The Court stated:

In the instant case, the record contains sufficient evidence to support the letter of reprimand. The NOPD proved the occurrence of the complained of activity as Regis acknowledged her window tint was in violation of [La. R.S. 32:361.1(B)] and that she had not received an exemption sticker from the Louisiana State Police.
Additionally, Regis’s conduct “impaired the efficiency” of the NOPD and “bears a real and substantial relationship to [its] efficient operation.” Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990). Police officers are charged with enforcing the motor vehicle and traffic laws; “a police officer’s failure to comply with the laws thus gravely impairs the efficiency of the department.” Davis v. Dep’t of Police, 590 So.2d 850, 852 (La.App. 4 Cir.1991) (affirming discipline for an officer who caused a traffic accident). When an officer violates the law, “it casts doubt upon the credibility of the [police department] to ably conduct one of its principal functions.” Berry v. Dep’t of Pub. Safety & Corr., 01-2186, p. 13 (La.App. 1 Cir. 9/27/02); 835 So.2d 606, 615 (affirming discipline for a state trooper for failing to report earnings from off-duty details in violation of federal tax law); see Thornabar v. Dep’t of Police, 08-0464, p. 4 (La.App. 4 Cir. 10/15/08); 997 So.2d 75, 78 (officer’s failure to hon- or a court’s subpoena impaired the efficiency of the NOPD as it had “the appearance of a constructive contempt of court.”); Cittadino, 558 So.2d at 1316 (officer, by offering to sell illegal poker machines, impaired the efficient operation of the NOPD). Moreover, since the public puts its trust in the police department as a guardian of its safety, it is essential the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. See Newman, 425 So.2d at 756. Accordingly, the [CSC’s] decision was not “arbitrary or capricious,” and the [CSC] properly denied Regis’s appeal.

Id., pp. 2-3, 121 So.3d at 665-66.

The record in the present case contains sufficient evidence to support Adams’ termination. The NOPD presented Adams’ nolo contendere plea to two misdemeanor counts of simple cruelty to animals from St. John the Baptist Parish. The plea established that Adams violated La. R.S. 14:102.1A(l)(c) and NOPD Rule 2; Moral Conduct, Paragraph 1-Adherence to Law. Sgt. Sanders testified at the CSC hearing that Adams admitted in her administrative statement that she had custody of the dogs and did not seek veterinary care despite observing their rapid weight loss. Also, Supt. Serpas confirmed that Adams’ commission of the misdemeanors violated the NOPD’s internal rules. Considering Adams violated both state law and NOPD internal rules, the appointing authority had cause to discipline Adams because her conduct impaired the efficient operation of the department. Thus, we do not find the CSC’s decision to uphold the Adams’ termination was arbitrary and capricious.

|sIn the second assignment of error, Adams argues the CSC erred in upholding her termination because the punishment is excessive and not commensurate with her offense.

In determining whether an appointing authority properly imposed disciplinary action against a classified employee, the reviewing court must consider whether the punishment is commensurate with the offense. Staehle v. Department of Police, 98-0216, p. 5 (La.App. 4 Cir. 11/18/98), 723 So.2d 1031, 1034. The evidence in the record must establish a rational basis for the imposed discipline. Id., p. 6, 723 So.2d at 1034.

Rule IX, § 1.1 of the Rules of the Civil Service Commission for the City of New Orleans provides that when a classified employee has committed an act to the prejudice of the service or otherwise has been subjected to corrective action, the appointing authority shall take action as warranted by the circumstances to maintain the standards of effective service. This action may include removal from the service. See Rule IX, § 1.1(a).

Based on a review of the evidence, we conclude the termination imposed in this case is both rationally based and commensurate with the dereliction. Supt. Ser-pas testified that he considered each disciplinary action on a case-by-case basis. In Adams’ case, he considered the disciplinary guidelines, her history with the NOPD, and the fact that she violated a state criminal statute on two counts and the NOPD internal regulations. Moreover, in the disciplinary letter to Adams, Supt. Serpas emphasized that she “offered nothing which would tend to mitigate, justify |9or explain [her] behavior” when she had the opportunity to do so at the hearing before Asst. Supt. Defillo.

Regarding the third assignment of error, Adams contends that the appointing authority’s investigation did not comply with the sixty-day time limit set forth in La. R.S. 40:2531(B)(7) and, thus, the imposed discipline is an absolute nullity under La. R.S. 40:2531(C).

For purposes of La. R.S. 40:2531(B)(7), Adams contends the complaint was initiated on January 21, 2010, when Capt. Thomas sent Sgt. Sanders to the St. John the Baptist Parish jail to interview and inform her that she was under investigation by the PIB for allegedly violating animal cruelty laws. Adams claims that the investigation ended on October 22, 2010, when she received the written notice from the NOPD outlining the sustained charges of misconduct and informing her that the administrative investigation was complete. Because more than sixty days elapsed between the initial complaint and the completion of the investigation, Adams argues the NOPD failed to comply with sixty-day limitation under the statute, rendering the imposed discipline an absolute nullity. The NOPD, on the other hand, contends that the administrative investigation and sixty-day period commenced September 16, 2010, upon Adams’ entering the nolo contendere plea to the misdemeanors.

In support of her argument, Adams cites this Court’s decisions in O’Hern v. Department of Police, 2012-0600 (La.App. 4 Cir. 12/19/12), 111 So.3d 1037, on rehearing (La.App. 4 Cir. 4/25/13), 111 So.3d 1037 and Robinson v. Department of Police, 2012-1039 (La.App. 4 Cir. 1/16/13), 106 So.3d 1272, writ denied, 2013-0528 (La.4/12/13), 110 So.3d 1081. However, the Louisiana Supreme Court recently granted writs and reversed the O’Hern decision in O’Hern v. Department of Police, 2013-1416 (La.11/8/13), 131 So.3d 29, 2013 WL 5951809, specifically holding that this Court erred in relying on its writ denial in Robinson, noting “a denial of a writ has no precedential value.” Id., p. 3, 131 So.3d. at 32. (citations omitted).

Referring to La. R.S. 40:2531, the Court in O’Hern stated:

The language found in La. R.S. 40:2531 provides that an investigation shall be initiated within fourteen days of a formal complaint and, unless involving allegations of criminal activity, must be completed within sixty days. Specifically, the statute provides: “[ejxcept as otherwise provided in this Paragraph, each investigation of a police employee or law enforcement officer which is conducted under the provisions of this Chapter shall be completed within sixty days ...” However, the statute further states, “... nothing in this Paragraph shall limit any investigation of alleged criminal activity.”

O’Hern, 2013-1416 at p. 2, 131 So.3d. at 31 (emphasis in original).

In O’Hem, O’Hern left his assigned duty on December 12, 2009, went to his private vehicle, drove to the top floor of a downtown parking garage, consumed a bottle of whiskey and ingested several pills. He then tasered himself and discharged his firearm multiple times. Responding officers found O’Hern incapacitated and took him to a medical facility where he informed personnel that he had attempted to commit suicide. His blood alcohol content exceeded the legal limit. O’Hern, 2013-1416 at p. 1, 131 So.3d. at 30.

On the same day, Sgt. Jones of the PIB began an investigation, issuing O’Hern a Form DI-1: “Initiation of a Formal Disciplinary Investigation,” which placed O’Hern on notice that his actions gave rise to a possible violation of “Rule 2: Moral Conduct; Paragraph 1: Adherence to Law,” relative to the illegal use of weapons. Pursuant to this notice, the NOPD began a criminal investigation of In O’Hern’s actions. On December 16, 2009, Sgt. Jones requested that O’Hern submit a criminal statement, which O’Hern refused. O’Hern was later arrested and pled nolo contendere to a violation of La. R.S. 14:94, relative to the illegal use of weapons and dangerous instrumentalities. O’Hern, 2013-1416 at p. 1, 131 So.3d at 30.

On March 5, 2010, the NOPD began its administrative investigation and sent notice to O’Hern compelling an administrative statement, which took place on March 11, 2010. On April 27, 2010, Sgt. Jones sent O’Hern written notice pursuant to La. R.S. 40:2531(B)(7), outlining the sustained charges of misconduct and notifying him that the investigation was complete. O’Hern was subsequently terminated. O’Hern, 2013-1416 at p. 1, 131 So.3d at 30.

O’Hern appealed his termination, asserting a violation of La. R.S. 40:2531(B)(7), on the basis that the investigation was not completed within sixty days. Following a hearing, the CSC denied the appeal. O’Hern then appealed the CSC’s decision to this Court, which originally affirmed the decision. On rehearing, however, this Court reversed its decision and that of the CSC, finding the formal investigation exceeded the sixty-day time limit. O’Hern, 2013-1416 at p. 2, 131 So.3d at 30.

On a writ application from the NOPD, the Supreme Court reversed, finding no violation of the sixty-day time limit set forth in La. R.S. 40:2531(B)(7), because the investigation involved allegations of criminal activity. The Supreme Court noted that “[t]he plain language of the statute suggests a criminal investigation is distinct from a civil administrative investigation.” O’Hern, 2013-1416 at p. 2, 131 So.3d at 31. The Court reiterated that “a criminal investigation tolls the time limit for the administrative investigation.” O’Hern, 2013-1416 at p. 3, 131 So.3d at 31, citing Franklin v. Department of Police, 2010-1581 (La.App. 4 Cir. 4/6/11), (unpub’d) writ denied, 69 So.3d 1157 (La.9/23/11) and Wyatt v. Harahan Municipal Fire and Police Civil Service Board, 2006-81 (La.App. 5 Cir. 7/25/06), 935 So.2d 849. Given the facts, the Court determined that the preliminary investigation was a criminal investigation because Sgt. Jones initially requested a criminal statement and O’Hern was ultimately charged with a criminal violation. The Court concluded the sixty-day period within which to complete an investigation did not begin until the start of the administrative investigation on March 5, 2010, and was completed within sixty days. O’Hern, 2013-1416 at p. 4, 131 So.3d at 31.

Applying the reasoning of the O’Hem decision to this case, we find that Sgt. Sanders was conducting a preliminary inquiry into alleged criminal activity when he interviewed Adams at the St. John the Baptist Parish jail on January 21, 2010, the day of her arrest. As testified to by Sgt. Sanders, that inquiry became an administrative investigation once Adams entered her nolo contendere plea on September 16, 2010. The administrative investigation ended on October 22, 2010, when Adams received notice, outlining the sustained charges of misconduct and informing her that the administrative investigation was complete. Because the administrative investigation began and ended within the required sixty-day period, we conclude the appointing authority did not violate La. R.S. 40:2531(B)(7).

113In the final assignment of error, Adams argues that the CSC Hearing Examiner erred by not allowing her to introduce testimony and documentary evidence of the NOPD’s disciplinary action against other officers with misdemeanor convictions. Specifically, Adams sought to introduce evidence of three NOPD officers who were employed despite DWI convictions. She contends the evidence demonstrates that her termination is extreme and disproportionate to the discipline imposed upon similarly situated officers. Adams also contends that NOPD’s hiring policy does not automatically disqualify an applicant with a misdemeanor conviction from being considered as a police recruit or classified officer, provided the misdemean- or is not a crime against a person or sexual offense.

Rule II, § 4.11(b) of the Rules of the Civil Service Commission for the City of New Orleans, states, “[t]he hearing examiner is empowered to administer oaths, rule on the admissibility of testimony and evidence and supplement the record with pertinent questions.” The record indicates that the hearing examiner excluded the evidence as irrelevant to the case and then allowed Adams to proffer it. After considering the evidence, we find the hearing examiner did not abuse his discretion in ruling it inadmissible. Furthermore, the proffered evidence does not negate the fact that Supt. Serpas had cause to terminate Adams given her nolo contendere plea to the two misdemeanors and prior disciplinary infractions.

Accordingly, for the above reasons, the decision of the CSC denying Adams’ appeal is affirmed.

AFFIRMED.

      . NOPD Operations Manual Rule 2: Moral Conduct, Paragraph 1 — "Adherence to Law,” provides:
      Employees shall act in accordance with the constitutions, statutes, ordinances, administrative regulations, and the official interpretations thereof, of the United States, the State of Louisiana, and the City of New Orleans, but when in another jurisdiction shall obey the applicable laws. Neither ignorance of the law, its interpretations, nor failure to be physically arrested and charged, shall be regarded as a valid defense against the requirements of this rule.

      . See La. R.S. 14:102.1A(l)(c).

      . The record contains no evidence of a Form DI-1: "Initiation of a Formal Disciplinary Investigation,” the document utilized by the NOPD to initiate a formal disciplinary investigation.

      . The record contains no evidence of the written notice; however, Adams acknowledged at the hearing and in her appeal brief that she had received it.

      . Regis v. Department of Police, 2012-1692 (La.App. 4 Cir. 4/17/13), 115 So.3d 638 (Love, J., dissenting).

      . Adams received a one-day suspension in July, 2007, for failing to timely sign a log book at the end of her shift. The imposed discipline was upheld in Adams v. Department of Police, 2008-0468 (La.App. 4 Cir. 2/12/09), 7 So.3d 763 (Bonin, J. dissenting).

      . O’Hern, supra, 2012-0600 (La.App. 4 Cir. 12/19/12), 111 So.3d 1037, on rehearing (La. App. 4 Cir. 4/25/13), 111 So.3d 1037.

      . Sgt. Sanders testified that his initial inquiry into Adams' arrest was a criminal investigation that became an administrative investigation on September 16, 2010, when Adams pleaded nolo contendere in St. John the Baptist Parish district court. Although Adams claims the administrative investigation began on January 21, 2010, the record contains no evidence that contradicts Sgt. Sanders' testimony.