text:
    STATE of Louisiana v. Steven J. DOMINICK.
    No. 2013-KA-0121.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 20, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
    Julie C. Tizzard, Julie C. Tizzard, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

_jjln this criminal appeal, the appellant, Steven J. Dominick, seeks review of the district court’s denial of his motion to withdraw his guilty plea to multiple offenses— forcible rape, second degree kidnapping, stalking, and extortion. Finding no error on the part of the district court, we affirm his convictions and his sentences for stalking and extortion, but remand to the district court for clarification of his sentences for forcible rape and second degree kidnapping. We also grant Mr. Dominick’s motions to seal.

STATEMENT OF THE CASE

On June 10, 2010, the State indicted Mr. Dominick on the following offenses:

1. four counts of forcible rape of C.P. (counts 1-4) (La. R.S. 14:42.1);
2. two counts of stalking and one count of extortion of J.R. (counts 5-7) (La. R.S. 14:40.2; La. R.S. 14:66);
3. two counts of stalking and one count of extortion, forcible rape, and second degree kidnapping of O.C. (counts 8-12) (La. R.S. 14:40.2; La. R.S. 14:66; La. R.S. 14:42.1; La. R.S. 14:44.1);
4. one count of stalking of M.H. (count 13) (La. R.S. 14:40.2); and
|25. one count of stalking and extortion of D.C. (counts 14-15) (La. R.S. 14:40.2; La. R.S. 14:66).

The indictment indicates that the offenses occurred between May 1, 2006 and May 31, 2010. The indictment was filed in Orleans Parish Criminal District Court under case number 497-512. At his June 17, 2010 arraignment, Mr. Dominick pled not guilty.

On November 19, 2010, the State noticed its intent to use evidence that Mr. Dominick committed eighteen similar offenses against women in Orleans Parish and other jurisdictions — the Prieur evidence. On March 25, 2011, the district court denied Mr. Dominick’s motion to suppress and found the Prieur evidence admissible. Both this court and the Louisiana Supreme Court denied Mr. Dominick’s writ seeking review of the district court’s ruling on the admission of the Prieur evidence. State v. Dominick, 11-0620 (La.App. 4 Cir. 6/20/11) (unpub.); and State v. Dominick, 11-1627 (La.10/7/11), 71 So.3d 324. On March 13, 2012, Mr. Dominick pled guilty to all charges. On June 12, 2012, Mr. Dominick’s trial counsel withdrew; and appellate counsel enrolled as counsel of record.

On July 9, 2012, Mr. Dominick filed, and the district court granted, a “Motion for Defense Expert to Download Text Messages from Defendant’s Cell Phone and That Was Entered into Evidence Pursuant to Arrest” and a “Motion to | .-¡Inspect and Photocopy Legal Documents belonging to Defendant and his Previous Attorney Seized Pursuant to a Search Warrant of Defendant’s Home and Subsequently Entered] into Evidence.” On July 30, 2012, Mr. Dominick filed, and the district court granted, a “Motion to Order Cell Phone Currently Located in the District Attorney’s Evidence Locker Be Mailed to Defense Expert, Wes Attaway.”

On August 8, 2012, Mr. Dominick filed a motion to withdraw the guilty plea. He also requested a hearing on the motion to withdraw the guilty plea. Although the district court denied the motion to withdraw the guilty plea and the request for a hearing, it allowed Mr. Dominick to proffer exhibits in support of the motion. On that same date, the district court sentenced Mr. Dominick to twenty years on each of the five counts of forcible rape; fifteen years on each of the three counts of extortion; twenty years on the one count of second degree kidnapping; and five years on each of the six counts of stalking. The district court ordered the sentences to run concurrently. This appeal followed.

MOTIONS TO SEAL

In connection with his appeal, Mr. Dominick filed a “Motion to Seal Motion to Withdraw Guilty Plea” and a “Motion to Seal Proffered Evidence.” In support of his motions to seal, he cites La. R.S. 46:1844(W)(l)(b), which provides for the confidentiality of the identity of all victims of sex offenses. In his motions, he | ¿states that “[t]he Motion to Withdraw provides the victims[’] names in full,” and that “[t]he evidence proffered provides the victims!’] names in full.” Mr. Dominick’s motions to seal are granted.

STATEMENT OF THE FACTS

Because Mr. Dominick pled guilty and no preliminary hearing was held, the only facts concerning the offenses to which he pled guilty were elicited at the March 25, 2011 hearing on Mr. Dominick’s motion to suppress. At the hearing, Detective James O’Hern of the New Orleans Police Department (“NOPD”) testified that he commenced an investigation of Mr. Dominick in response to a complaint by Paul Bello. According to Detective O’Hern, Mr. Bello’s complaint was that a rapist was extorting a victim’s silence by threatening to expose compromising pictures of her. Detective O’Hern testified that he spoke with the victim, O.C., who confirmed that Mr. Dominick had raped her and was extorting her. She told him that Mr. Dominick was threatening that if she reported the crime to the police, he would expose compromising photographs of her.

Detective O’Hern testified that his investigation also revealed that Mr. Dominick had been arrested thirty-eight times, dating back to 1992, for domestic violence or sexual offenses. After speaking to some of Mr. Dominick’s other Lvictims, Detective O’Hern determined that charges could be brought against Mr. Dominick.

On June 11, 2011, Detective O’Hern obtained and executed a search warrant for Mr. Dominick’s residence — 1937-39 Duels Street — and his vehicle — a 2008 Ford Explorer. The search warrant was for pictures and other information Mr. Dominick possessed that would compromise the victims. The search yielded cameras, photographs, video equipment, computers, video and audio tapes, and surveillance equipment. The seized items were catalogued in NOPD’s Central Evidence and Property Room and forwarded for analysis to the high-tech forensic unit at the Attorney General’s Office. On the same day, the NOPD’s Violent Offender Unit and the United States’ Marshal’s Service arrested Mr. Dominick at his residence.

ERRORS PATENT

A review for errors patent reveals the following four sentencing errors:

1. As to the sentences for forcible rape (La. R.S. 14:42.1), the district court failed to articulate that the sentences were to be served at hard labor with at least two years of the sentences to be served without parole.
2. Although the sentences for stalking convictions (La. R.S. 14:40.2) were required to be served without benefits of parole, probation, or suspension of sentence, the district court failed to deny those benefits.
3. Although the sentences for extortion (La. R.S. 14:66) were required to be served at hard labor, the district court failed to so stipulate.
4. Although the sentence for second degree kidnapping (La. R.S. 14:44.1(0) was required to be served at hard labor with at least two years served without benefit of parole, probation, or suspension of sentence, the district court failed to impose hard labor and failed to deny parole for at least two years of the sentence.

Although the district court failed to stipulate that Mr. Dominick’s sentences for forcible rape and extortion were to be served at hard labor, and failed to deny [^benefits of parole, probation, or suspension of sentence as to the stalking sentences, those restrictions automatically are contained in the sentences whether or not imposed by the sentencing court. La. R.S. 15:301.1(A); State v. Wilson, 09-0304 (La.App. 4 Cir. 2/17/10), 68 So.3d 1031; State v. Hall, 02-1098, pp. 7-8 (La.App. 4 Cir. 3/19/03), 843 So.2d 488, 495 (citing State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790). These errors patent thus are self-correcting. Neither the district court’s failure to deny Mr. Dominick parole for “at least” two years of his sentences for forcible rape, nor its failure to deny benefits of parole, probation, or suspension of sentence for “at least” two years on his second degree kidnapping sentence are self-correcting or correctable on appeal. La. R.S. 15:301.1(A). The “at least” aspect of the governing statutes involves the district court’s sentencing discretion. See State v. Tabor, 07-0058, p. 13 (La.App. 1 Cir. 6/8/07), 965 So.2d 427, 434-35. Accordingly, we remand to the district court for clarification of Mr. Dominick’s forcible rape sentences and his second degree kidnapping sentence.

DISCUSSION

Assignment of Error Number One

Mr. Dominick’s first assignment of error is that the district court abused its discretion in denying his motion to withdraw the guilty plea. He maintains the plea was not knowingly, intelligently and voluntarily made because he pled under the false pretense that he was pleading to an open-ended sentence to be determined after a full sentencing hearing. He further contends that the district court abused its discretion by refusing to grant a hearing on the motion “despite the overwhelming evidence proffered prior to sentencing proving [his] actual innocence.”

17Summarizing the statutory law and jurisprudence regarding motions to -withdraw guilty pleas, this court in State v. Joseph, 11-0689, pp. 6-7 (La.App. 4 Cir. 6/13/12), 95 So.3d 1209, 1213, stated:

La.C.Cr.P. art. 559 provides in pertinent part that “[t]he court may permit a plea of guilty to be withdrawn at any time before sentence.” The Louisiana Supreme Court in State v. Lewis, 421 So.2d 224 (La.1982) considered this issue and held that a trial court may permit the withdrawal of a guilty plea after sentencing when the district court finds that the guilty plea was not entered freely and voluntarily or that the Boykin colloquy was inadequate, and, therefore, the plea is constitutionally infirm. The withdrawal of a guilty plea is within the discretion of the district court, and is subject to reversal only if that discretion is abused or arbitrarily exercised. State v. Johnson, 406 So.2d 569 (La.1981).
For a guilty plea to be found valid, there must be a showing that the defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation and right against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). However, the entry of a knowing and intelligent plea of guilty involves more than an understanding and a waiver of the basic triad of rights. In determining whether the defendant’s plea is knowing and voluntary, the court must not only look to the colloquy concerning the waiver of rights, but may also look at other factors which may have a bearing on the decision. State ex rel. LaFleur v. Donnelly, 416 So.2d 82 (La.1982).”

Id. (quoting State v. Causey, 10-1466, pp. 8-9 (La.App. 4 Cir. 6/16/11), 67 So.3d 697, 703-04, and citing State v. Rhea, 04-0091, pp. 3-4 (La.App. 4 Cir. 5/19/04), 876 So.2d 131, 133-34).

A defendant does not have an “absolute right” to withdraw a guilty plea. Joseph, supra (citing State v. Young, 11-0046, p. 7 (La.App. 4 Cir. 8/17/11), 71 So.3d 565, 570 (quoting State v. Pichon, 96-0886, p. 2 (La.App. 4 Cir. 11/20/96), 684 So.2d 501, 502)). A defendant’s “mere change of heart or mind ... whether he made a good bargain will not ordinarily support allowing the withdrawal of a bargained guilty plea.” State v. Kron, 07-1024, p. 6 (La.App. 5 Cir. 3/25/08), 983 So.2d 117, 120 (citing State v. Green, 03-410 (La.App. 5 Cir. 10/28/03), 860 So.2d 237). Rather, “[without fraud, intimidation or incompetence of counsel, a guilty plea is not made less voluntary or informed by the considered advice of counsel.” Id.

In this case, when he pled guilty on March 13, 2012, Mr. Dominick was represented by counsel. The district court asked Mr. Dominick if he understood that by entering the guilty plea he was waiving the following rights: to a trial by judge or by jury, to being presumed innocent until the State could prove him guilty beyond a reasonable doubt, to confront the witnesses testifying against him, to testify or not to testify, to not have his decision to remain silent held against him, and to appeal a guilty verdict. Mr. Dominick answered that he understood the rights he was waiving and that he had no questions. Furthermore, the district court explained the maximum sentences that Mr. Dominick could receive for the offenses. When asked if anyone had forced, threatened, or coerced him into pleading guilty, Mr. Dominick answered negatively. When asked if he was satisfied with his attorney, he answered affirmatively. Moreover, Mr. Dominick admitted to the district court that he entered the pleas because he was guilty of the crimes. Hence, the transcript of the plea hearing establishes that the Boykin requirements were satisfied.

Mr. Dominick’s contention that his guilty pleas were not knowingly and voluntarily entered is belied by the record. The “Waiver of Constitutional Rights/Plea of Guilty Form,” dated March 13, 2012, enumerates the umbrella of rights Mr. Dominick was waiving by pleading guilty. It sets forth the offenses to which Mr. Dominick was pleading guilty and the possible sentences for each offense. The form indicates that Mr. Dominick admitted his plea of guilty was |nvoluntary and that it was entered into because he was guilty of the crimes charged. Mr. Dominick signed and initialed the form in all of the appropriate places. Mr. Dominick’s attorney also signed the form. The district court judge likewise signed the form, indicating the court’s acceptance of the guilty plea as having been knowingly, intelligently, freely, and voluntarily made by Mr. Dominick.

The record further reflects that Mr. Dominick is well-educated; he holds a bachelor’s degree in urban planning. He was employed as a city planner in the Office of Recovery and Development Administration following Hurricane Katrina, and he taught classes on history and city planning.

The record still further reflects that Mr. Dominick knowingly and voluntarily pled guilty without any promises regarding his possible sentence. Moreover, he received additional consideration as a result of the district court’s order that his sentences run concurrently. If the district court had ordered that Mr. Dominick’s sentences run consecutively, his sentences would have exceeded one hundred fifty years.

As noted, Mr. Dominick contends that the district court abused its discretion in denying a hearing on the motion to withdraw in spite of the evidence of his actual innocence. The issue of Mr. Dominick’s actual innocence, however, was foreclosed by his guilty plea. Nonetheless, the district court allowed Mr. Dominick to proffer documentary evidence in support of the motion to withdraw the plea. Among the documents he proffered were affidavits from Mr. Dominick and his sister and copies of emails and messages' from social networking websites between Mr. Dominick and some of the victims.

|inBefore ruling on the motion to withdraw, the district court judge read victim impact statements and letters from interested parties. The district court then called Mr. Dominick to the podium and stated:

BY THE COURT:
And let me just state for the record that some of the parties are asking for sentences that are not in conjunction with the agreement that we made with the victims in this case. And, Mr. Dominick, at this time I am going to enforce the plea agreement, although it was not made in consideration for your testimony in another case, but prior to you going to trial with the attorneys that you had at this time and with the State. With the consideration of the victims and their input, sir, I agreed that if you pled guilty prior to trial, that I would sentence you to twenty years in the Department of Corrections in case number 497-512 ... And, Mr. Dominick, I am going to enforce that agreement that we made. And so, at this time if you are ready for sentencing, [defense counsel]?

Defense counsel answered in the affirmative.

Mr. Dominick waived the right to appeal the merits of his case when he pled guilty. The district court explained the procedural posture of Mr. Dominick’s case when defense counsel moved for the instant appeal:

BY THE COURT:
I don’t [know] what you are appealing, if you’re appealing the sentence, because he’s waived his right to appeal.
DEFENSE COUNSEL:
I’m appealing the denial of the motion to withdraw guilty plea based on newly-discovered evidence and based on ineffective assistance of counsel.
BY THE COURT:
... [L]et me make sure you understand, that this is clear. When he pled guilty, he waived any right to appeal. Now, I understand what you’re saying [defense counsel], but I’ll give you a return date as to your wanting to appeal me denying your motion to withdraw the guilty plea. However, he doesn’t have any appeal on the merits of the case, because he waived the right to an appeal when he pled guilty. So I just want to make sure you’re | n clear. He has post-conviction rights, but he does not have any appellate rights.

Considering the forgoing, we find no abuse of discretion in the district court’s ruling denying Mr. Dominick’s motion to withdraw his guilty plea and his request for a hearing on that motion. This assignment of error lacks merit.

Assignment of Error Number Two

Mr. Dominick’s second assignment of error is that he was denied effective assistance of counsel. Particularly, he contends that his previous counsel was ineffective in failing to investigate the case and in providing misinformation concerning prison programs and sex offender registration.

To succeed on an ineffective assistance of counsel claim, a defendant must establish two criteria: (i) that his trial counsel’s performance was deficient and (ii) that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984); State v. Robinson, 11-0066, pp. 11-12 (La.App. 4 Cir. 12/7/11), 81 So.3d 90, 96-97. A claim of ineffective assistance may be disposed of based upon a finding that either of the two Strickland criteria have not been established. State v. James, 555 So.2d 519, 524 (La.App. 4th Cir.1989); State v. Frazier, 599 So.2d 419, 421 (La.App. 4th Cir.1992). Generally, a claim of ineffective assistance of counsel is “relegated to postconviction proceedings, unless the record permits definitive | ^resolution on appeal.” State v. Mercadel, 12-0685, p. 16 (La.App. 4 Cir. 7/24/13), 120 So.3d 872, 882 (collecting cases). Such is not the case here.

The evidence in the record is insufficient to evaluate and resolve Mr. Dominick’s ineffective assistance claim on appeal. The record contains two affidavits executed by Mr. Dominick. In one affidavit, he attests that his “previous attorneys failed to investigate the January 6, 2010 allegation that C.P. was raped in Steven Dominick’s office at 11 p.m. Counsel never attempted to obtain the security records indicating whether he accessed the building at that time.” In the other affidavit, he attested that counsel failed to consider his desire to withdraw his guilty plea. Neither of Mr. Dominick’s affidavits address his concerns as to prison programs or sex offender registration. Nor is there anything in the record from previous counsel to refute the claims of ineffective assistance.

Accordingly, we find Mr. Dominick’s ineffective assistance of counsel claims must be addressed in an application for post-conviction relief. On an application for post-conviction relief, Mr. Dominick will be afforded the opportunity to develop evidence with regard to his claims of ineffective assistance of counsel. Moreover, the district court will be able to provide him with a full evidentiary hearing, review the facts, and determine the merits of his ineffective assistance claims. For the forgoing reasons, we do not reach Mr. Dominick’s ineffective assistance of counsel claims. We expressly reserve Mr. Dominick’s right to raise these claims on post-conviction relief.

Assignment of Error Number Three

11sMr. Dominick’s final assignment of error is that the State committed a Brady violation. Mr. Dominick’s Brady violation claim is premised on text messages downloaded by a defense expert from Mr. Dominick’s cell phone, which was seized incident to his arrest. Mr. Dominick contends one of the victims, C.P., sent the text messages to him before his arrest and that those messages are a source of important impeachment evidence.

The Brady rule was summarized by this court in State v. Hollins, 11-1435, pp. 23-24 (La.App. 4 Cir. 8/29/13), 123 So.3d 840, 862, 2013 WL 4603938, as follows:

Due process requires the disclosure of evidence that is both favorable to the accused and material either to guilt or punishment. Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1197-97. The Brady rule also requires the disclosure of evidence adversely affecting the credibility of government witnesses. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). When such information is not disclosed and it is material in that its suppression undermines the confidence in the outcome of the trial, then constitutional error occurs and the conviction must be reversed. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. Materiality hinges on “not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). Further, the defendant must show that “ ‘disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable.’” State v. Marshall, 81-3115, 94-0461 (La.9/5/95), 660 So.2d 819, 826 (quoting Kyles, 514 U.S. at 441, 115 S.Ct. at 1569).

Id.

| uUnder the Brady rule, the State is not obligated to furnish a defendant with information he already has or can obtain with reasonable diligence. State v. Harper, 10-0356, p. 11 (La.11/30/10), 53 So.3d 1263, 1271 (citing State v. Kenner, 05-1052, p. 2 (La.12/16/05), 917 So.2d 1081, 1081 (citing United States v. Newman, 849 F.2d 156, 161 (5th Cir.1988))). Stated otherwise, “[t]here is no Brady violation where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source, because in such cases there is really nothing for the government to disclose.” State v. Hobley, 98-2460, p. 25 n. 10 (La.12/15/99), 752 So.2d 771, 786 (citing Coe v. Bell, 161 F.3d 320 (6th Cir.1998)).

In this case, given the text messages were from Mr. Dominick’s cell phone, it can be inferred that he was aware of those text messages before he entered the guilty plea. For this reason, there is no Brady violation. Id. Moreover, in United States v. Ruiz, 536 U.S. 622, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002), the Supreme Court held that a defendant is entitled to information necessary to ensure that his plea is voluntary and that any related waiver of his rights are made “knowing[ly], intelligently], [and] with sufficient awareness of the relevant circumstances and likely consequences.” Id. at 629, 122 S.Ct. at 2455 (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) (alterations in original)). Continuing, the Supreme Court stated:

[I]mpeachment information is special in relation to the fairness of a trial, not in respect to whether a plea is voluntary (“knowing,” “intelligent,” and “sufficient[ly] aware”). Of course, the more information the defendant has, the more aware he is of the likely consequences of a plea, waiver, or decision, and the wiser that decision will likely be. But the Constitution does not require the prosecutor to share all useful information with the defendant. Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (“There is no general constitutional right to discovery in a | ^criminal case”). And the law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the eireumstances-even though the defendant may not know the specific detailed consequences of invoking it. A defendant, for example, may waive his right to remain silent, his right to a jury trial, or his right to counsel even if the defendant does not know the specific questions the authorities intend to ask, who will likely serve on the jury, or the particular lawyer the State might otherwise provide. Cf. Colorado v. Spring, 479 U.S. 564, 573-575, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987) (Fifth Amendment privilege against self-incrimination waived when defendant received standard Miranda warnings regarding the nature of the right but not told the specific interrogation questions to be asked).

Ruiz, 536 U.S. at 629-30, 122 S.Ct. at 2455. Thus, the Supreme Court in Ruiz held that the Brady rule does not dictate that the prosecutor share all useful information with the defendant. The Ruiz case thus buttresses our finding that there is no Brady violation in this case. This assignment of error lacks merit.

DECREE

For the foregoing reasons, we affirm the defendant’s convictions and his sentences for stalking and extortion. We remand to the district court for clarification of the defendant’s sentences for forcible rape and his sentence for second degree kidnapping. We expressly reserve the defendant’s right to seek post-conviction relief on the issue of ineffective assistance of counsel. We grant the defendant’s motions to seal.

AFFIRMED IN PART, REMANDED IN PART, AND MOTIONS TO SEAL GRANTED

      . In this opinion, we use the victims' initials. See La. R.S. 46:1844(W) (barring public disclosure of the names, addresses, or identities of all victims of sex offenses; and authorizing use of initials or abbreviations.).

      . In a companion case (case number 505-411), Mr. Dominick was charged with 139 counts of pornography involving juveniles.

      . State v. Prieur, 277 So.2d 126 (La.1973).

      . Mr. Dominick also pled guilty to 139 counts of pornography involving juveniles in the companion case (case number 505-411), and he received a ten year sentence to be served concurrently with the sentences in this case. His appeal from his sentences in the companion case currently is pending in this court. State v. Dominick, 2013-KA-0270.

      . As the State points out, the scope of this appeal does not include review of the underlying convictions for the offenses to which Mr. Dominick pled guilty.

      . La. R.S. 46:1844(W)(l)(b) provides:
      W. Confidentiality of crime victims who are minors and victims of sex offenses.
      (l)(b) In order to protect the identity and provide for the safety and welfare of crime victims who are minors under the age of eighteen years and of victims of sex offenses, notwithstanding any provision of law to the contrary, an attorney for any party shall be prohibited from publicly disclosing, except during trial, the name, address, or identity of crime victims who at the time of the commission of the offense are under eighteen years of age or are victims of sex offenses, regardless of the date of commission of the offense. An attorney may lawfully utilize initials, abbreviations, or other forms of indefinite descriptions on documents used in the performance of their duties to prevent the public disclosure of the name; address, or identity of such crime victims. If the name, address, or identity of such a crime victim must be disclosed in a motion or pleading, that motion or pleading shall be filed with the court requesting that it be kept under seal. Failure to comply with the provisions of this Subparagraph shall be punishable as contempt of court.

      . Mr. Dominick averred in his motion to withdraw his guilty plea that his previous counsel informed him that he would have to register as a sex offender for a period of fifteen years and could be relieved of his burden by a judge after ten years. However, this information was inaccurate. The sex offender registration period for forcible rape is life. Thus, he contends that he was induced to plea by inaccurate information imparted by his previous attorneys. He further averred that as an. inducement to plea, his previous counsel told him that he was eligible for boot camp, which would greatly reduce his sentence; however, this information likewise was inaccurate. Sex offenders are ineligible for boot camp.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Steven C. LAWSON.
    No. 2013-KA-0812.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 20, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for State of Louisiana/Appellant.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellee.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   PAUL A. BONIN, Judge.

| ]The district attorney appeals the trial judge’s ruling sustaining Steven Lawson’s motion to quash the bill of information because his trial on the charge of unlawful possession of diazepam had not commenced within two years of the filing of the bill of information. See La.C.Cr.P. art. 912 B(l). As there is no question that the trial was not timely commenced within the two-year prescriptive period, the district attorney bore the heavy burden of establishing that the prescriptive period was either interrupted or suspended.

The trial judge found Mr. Lawson was still residing at the location he identified on his bond when the deputy sheriff unsuccessfully attempted to serve him with notice of arraignment. In light of the evidence adduced at the hearing on the motion to quash, we conclude that the trial judge’s finding was reasonable, and that the trial judge did not abuse his discretion in sustaining the motion to quash. Accordingly, we affirm his ruling.

We explain our decision in more detail below.

_ki

The unlawful possession of diazepam is a non-capital felony charge. See La. R.S. 40:964 Schedule IV B(14); La. R.S. 40:969 C(2) (any violator shall be imprisoned with or without hard labor for not more than five years, and may be ordered to pay a fine not to exceed $5,000). As a general rule, a trial for such a non-capital felony charge must commence within two years from the date of the institution of prosecution. See La.C.Cr.P. art. 578 A(2). A prosecution is instituted by the filing of an indictment or, as here, a bill of information. See La.C.Cr.P. art. 382 A. This two-year time period can be interrupted. See La.C.Cr.P. art. 579. If the two-year period is properly interrupted, then the full two-year period begins to run anew from the date such interruption ceases. See La.C.Cr.P. art. 579 C; see also Part II, post.

Here, the prosecution of Mr. Lawson was instituted by the filing of a bill of information on March 19, 2008. Mr. Lawson’s first court appearance regarding this matter was on May 11, 2012; he filed his motion to quash on September 28, 2012. His motion was timely filed. See La. C.Cr.P. art. 535 B. Thus, unless the district attorney showed that this prescriptive period was interrupted, the trial judge correctly sustained the motion to quash Mr. Lawson’s bill of information, and properly dismissed the charges against Mr. Lawson. See La.C.Cr.P. art. 538(3).

II

Our jurisprudence has long emphasized the importance of enforcing the statutory right of an accused to a speedy trial. This right strives “to prevent the Isoppression caused by suspending criminal prosecutions over citizens for indefinite periods of time.” State v. Ramirez, 07-0652, p. 4 (La.App. 4 Cir. 1/9/08), 976 So.2d 204, 207 (citing State v. Walgamotte, 415 So.2d 205, 210 (La.1982)). Once the statutorily-provided period has lapsed, the district attorney bears the burden of showing that an exception to this two-year limitation applies, and that commencement of trial was timely. See State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1286-1287. This burden on the district attorney to show that he is excused from trying the accused within the limitations period is a heavy one. See State v. Estill, 614 So.2d 709, 710 (La.1993).

The district attorney contends that the two-year limitation was interrupted because Mr. Lawson’s presence could not be obtained by legal process. See La.C.Cr.P. art. 579 A(3). The district attorney points to the address furnished by Mr. Lawson in his release-on-recognizance bond — 3934 Louisiana Avenue Parkway, New Orleans, LA 70125. This address is “conclusively presumed to continue for all proceedings on the bond until the party providing the address changes it by filing a written declaration in the proceeding for which the bond was filed.” La.C.Cr.P. art. 322 B. Because Mr. Lawson’s bond did not fix an appearance date, he was entitled to written notice of the date, time, and place that the court ordered him to appear. See La. C.Cr.P. art. 344 B. The written notice to Mr. Lawson could have been given either through delivery by an officer designated by the court at least two days prior to the appearance date or by first class mail at least five days before the appearance date. La.C.Cr.P. art. 344 D. Such notice is to be given at the address listed on the bond in compliance with La.C.Cr.P. art. 322. See La.C.Cr.P. art. 344 D.

|4A deputy sheriff went to that address but was unable to serve anyone at that location. On his return, he noted that the residence was “vacant,” and that the “subject moved.” See La.C.Cr.P. art. 736 A (“When the witness cannot be found, the sheriff must set out in his return every fact that in his opinion justifies the return.”) “The return, when received by the clerk, shall form part of the record and shall be considered prima facie correct.” Id. The deputy testified at the hearing on the motion that he had no personal recollection of the attempted service or the location in question, but did describe his customary practices in determining that a given property is vacant, such as looking in the windows or checking for an electrical meter or other utility service. See La. C.E. art. 406 (evidence of the habit of a person is relevant to prove that the conduct of the person was in conformity with the habit). No other effort to serve Mr. Lawson was undertaken, and the prosecution did not offer any evidence to corroborate the deputy’s testimony.

The district attorney relies upon our decision in State v. Peters, which he characterizes as analogous to this case. See 10-0939 (La.App. 4 Cir. 11/17/10), 52 So.3d 233. There, the defendant had provided an address on his bond, and failed to notify the court that he moved from his residence after Hurricane Katrina. In that case, notice of arraignment was sent to the defendant at the address provided on the bond, but there was no actual notice to him. The defendant predictably failed to appear. We concluded that, because of the defendant’s failure to perform his duty and provide a declaration of his change of address as required by La.C.Cr.P; art. 322, “the state was unable to serve him at the only address he had provided.” Peters, 10-0939 at p. 11, 52 So.3d at 239. We then reversed the district court’s granting of the defendant’s motion to quash. Id. p. 12, 52 So.3d at 240.

IsPeters might be binding on this Court if either the trial judge found that Mr. Lawson had moved, or we found that the trial judge was unreasonable in that finding. Unlike Peters, however, there was conflicting testimony and evidence before the trial judge. The trial judge, in this case, had the benefit of hearing the testimony of Mr. Lawson’s aunt, the owner of the property in question. Her affidavit, and the affidavit of Mr. Lawson’s mother were attached to the motion to quash. They both asserted in their affidavits that Mr. Lawson was exclusively residing at that location, with his aunt’s knowledge and permission, from December 2006 through the summer of 2008. (The deputy’s service was attempted on March 25, 2008.) The aunt’s affidavit stated that, while Mr. Lawson was repairing the storm-damaged property, he resided in the home with running water, electrical power, and other amenities needed to live there. Thus, the district attorney received sufficient notice before the hearing that Mr. Lawson would claim that the residence in question was habitable and that the sheriffs return was actually incorrect.

Mr. Lawson’s aunt testified at the hearing, virtually repeating what she declared in her affidavit. She added that, if one looked through the front door of the property, the property might appear vacant, and one might not realize that there were two sofas in the large room. She also testified that a blanket covered the bedroom window by the porch, completely obstructing anyone’s ability to see into the room. On cross-examination, she responded that Entergy had not disconnected the electricity until August 2008, more than four months after the attempted service at that location.

After hearing from both witnesses, the trial judge found them both to be credible. Additionally, he noted that it was not uncommon for persons to be living 1 fiin hurricane-ravaged houses. He accepted the aunt’s testimony that Mr. Lawson was residing at the address listed on his bond when the deputy sheriff attempted service of the notice of arraignment. He then sustained Mr. Lawson’s motion.

Ill

Because this motion to quash presents both questions of fact and law, we review the district judge’s ruling under an abuse-of-discretion standard. We specifically review the trial court’s granting of this motion to quash on the ground that the time limitation or prescriptive period for commencement of trial had expired under that same standard. See State v. Dillon, 11-0188, p. 4 (La.App. 4 Cir. 8/24/11), 72 So.3d 473, 475-476.

A district court necessarily abuses its discretion when its ruling is based on an erroneous view of the law. See, e.g., Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); United States v. Taylor, 487 U.S. 326, 335-336, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988) (noting that discretionary choices are not left to a court’s inclination, but to its judgment, which is guided by sound legal principles); see also Dillon, 11-1088 at p. 5, 72 So.3d at 476. Thus, if a trial court, in exercising its discretion, bases its ruling upon an erroneous view or application of the law, its ruling is not entitled to our deference. But, in the absence of this, the trial judge’s factual findings are entitled to our deference due to the complementary roles of trial and appellate judges. State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206.

17Here, the trial judge’s finding was based upon the credible testimony of Mr. Lawson’s aunt, the owner of the residence. While the trial judge did not find the deputy sheriffs testimony to be incredible, we infer that the trial judge found the deputy mistaken in his conclusion that the residence was vacant at the time that service was attempted. As we mentioned in Part II, ante, a sheriffs return is considered prima facie correct. See La.C.Cr.P. art. 736. But the presumption is rebutta-ble if the trier of fact is persuaded by a preponderance of the evidence that the return is incorrect. See La. C.E. arts. 306 and 308; Hall v. Folger Coffee Co., 03-1734, p. 6-7 (La.4/14/04), 874 So.2d 90, 96-98 (setting forth a six-step method to determine insufficiency of service of process). Article 736, which is expressly addressed to the subpoenaing of witnesses, has been applied to a defendant’s notice of trial, see State v. Mills, 390 So.2d 874, 877 (La.1980), and to a defendant’s notice of arraignment, see State v. Sorden, 09-1416, pp. 10-11 (La.App. 4 Cir. 8/4/10), 45 So.3d 181,187-188.

As the trial judge suggested, the aunt’s testimony that Mr. Lawson was living in a damaged home is not implausible considering the conditions of the city following Hurricane Katrina. The district attorney introduced no objective evidence that the house was not habitable. In light of the forewarning given to the district attorney about the aunt’s expected testimony and the failure of the district attorney to prepare to challenge her testimony with contradictory objective evidence, we do not find her testimony internally inconsistent, much less impeached. A reasonable fact-finder could credit the aunt’s testimony. Thus, we cannot say that the trial judge’s factual determination that Mr. Lawson, at the time [sof service, was still residing at the address provided on his bond was unreasonable or implausible. See Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

Based upon the reasonable factual finding by the trial judge that Mr. Lawson was still residing on Louisiana Avenue Parkway at the time of the attempted service, we cannot hold that the trial judge abused his discretion in sustaining the motion to quash. The district attorney did not discharge his heavy burden to show that Mr. Lawson had moved from the property.

CONCLUSION

Thus, the two-year limitation period from the institution of prosecution expired without interruption. The district attorney is not authorized to bring Mr. Lawson to trial on the charge of unlawful possession of diazepam.

DECREE

We affirm the ruling which sustained the motion to quash the bill of information, dismissed the charges, and discharged the defendant, Steven Lawson. See La. C.Cr.P. art. 581.

AFFIRMED.

      . The period may also be suspended by the filing of a motion. See La.C.Cr.P. art. 580.

      . His motion also asserted the alternative ground that his right to a speedy trial had been violated.

      . We generally review trial court rulings on motions to quash under an abuse-of-discretion standard. See State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206; State v. Batiste, 05-1571, p. 9 (La.10/17/06), 939 So.2d 1245, 1251. When, however, the issue presented in a motion to quash is exclusively a question of law, we review the ruling de novo. See State v. Hamdan, 12-1986, p. 6 (La.3/19/13), 112 So.3d 812, 816. See also State v. Schmolke, 12-0406, p. 4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 299. Under a de novo standard of review, we do not defer to any factual findings by the trial judge. Id.

      . Hall considered a provision comparable to La.C.Cr.P. art. 736, which is La. C.C.P. art. 1292.


author: DANIEL L. DYSART, Judge.

text:
    Barbara REGUA v. Florence SAUCIER, Fred Saucier and Janet Malone.
    No. 2013-CA-0832.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 20, 2013.
    Alan G. Bouterie, Alan G. Bouterie, Jr., David M. Serio, Bouterie Law Firm, APLC, Chalmette, LA, for Plaintiff/Appel-lee.
    Eric August Bopp, Walter Rimmer Woodruff, Jr., Edward S. Bopp — A Law Corporation, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

| Florence Saucier, Fred Saucier and Janet Malone (collectively “the Sauciers”) seek reversal of a judgment in favor of Barbara Regua. The trial court awarded Regua all of the monies she paid to the Sauciers as a down payment, monthly notes and the ad valorem taxes on a duplex she acquired through a bond for deed agreement. Additionally, the trial court awarded Regua the monies expended by her for renovation of property. For the following reasons, we affirm.

This case involves a duplex flooded and badly damaged in the aftermath of Hurricane Katrina. The property is located in St. Bernard Parish, which was ravaged by flood waters that remained for weeks. In April of 2006, Regua acquired the subject property through a bond for deed agreement. The purchase price was $40,000.00. Regua made a down payment of $5,000.00, and was to pay the balance in ninety-six installments. The property was purchased “as is,” which in this case meant in need of gutting, re-wiring, re-plumbing, new floors, walls, etc. Additionally, Regua was to pay the property taxes due each year.

|2The bond for deed agreement provided that if the purchaser defaulted on the monthly payments, the sellers must give written notice of the default to the purchaser. Purchaser would have forty-five days to pay the amount due. If not paid, the purchaser was to quit and surrender the premises upon demand.

The sellers’ default clause provided that once all payments were made, if the seller did not deliver a clear title, the purchaser could demand the return of all payments made and the fair market value of any material improvements minus the fair market value of rental for the period of time purchaser occupied the premises.

Sometime in 2009, Regua failed to make several monthly payments to the Sauciers. The Sauciers sent written notice of default to Regua, who attempted to pay $1200.00 toward the arrearage of $2,254.29. The Sauciers reportedly rejected the partial payment, and moved forward on the default. On September 29, 2009, more than three and one-half years after the parties entered into the bond for deed contract, the Sauciers recorded an affidavit of cancellation of the bond for deed. The Sauci-ers thereafter changed the locks on the property, preventing Regua from entering and recovering her personal property.

Initially, Regua filed a suit against the Sauciers alleging wrongful eviction, conversion of property, breach of contract, fraud, reimbursement for improvements made to the property, and injunctive relief. The Sauciers answered the lawsuit denying any wrongdoing.

Following a judge trial, the court awarded Regua $86,203.36, which included her original' down payment, the monthly installments paid, the costs | sincurred in the renovation, and the property taxes paid by Regua. The court denied Regua’s claims for conversion and for wrongful eviction based on lack of evidence. The court indicated that the parties could “reopen” the case for a ruling on fair rental value and/or attorney fees, but otherwise deemed the judgment final for purposes of appeal. The record does not indicate that either party sought to litigate the additional issues, thus we will address the assignments of error presented on appeal.

DISCUSSION:

Louisiana Revised Statute 9:2941 defines a bond for deed as a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments, and in which the seller, after payment of a stipulated sum, agrees to deliver title to the buyer.

The only basis for default described in the bond for deed statutes, La. R.S. 9:2941 et seq., is the failure to make the required payments. La. R.S. 9:2945 provides that where there is no mortgage on the property, as in this case, if the buyer fails to make the payments in accordance with the terms and conditions of the bond for deed contract, the seller, at his option, may have the bond for deed cancelled by proper registry in the conveyance records of the parish where the property is located. Further, the seller must serve notiee upon the buyer, and make |,¡known that unless payment is made within forty-five days from the mailing of the notice, the bond for deed shall be cancelled.

The subject bond for deed contract provided, in addition to the language of La. R.S. 9:2945, a provision that if the contract should terminate, the purchaser “shall quit and surrender the premises to Sellers.” Additionally, “[i]f this Contract shall have been so terminated be [sic] Sellers, Sellers may at any time thereafter resume possession of the premises by any lawful means and remove Purchaser or other occupants and their effects.”

There is no dispute that the Sauciers followed both the law and the bond for deed contract when they filed into the conveyance records the affidavit of cancellation of the bond for deed. The Sauciers also admit in them brief that the seller in a bond for deed contract is not entitled to retain all monies paid by the buyer as liquidated damages, even if the contract so provides. The Sauciers argue, however, that the trial court relied too heavily on the holding in Berthelot v. Le Investment, LLC, 02-2054 (La.App. 4 Cir. 1/21/04), 866 So.2d 877.

In Berthelot, a motel owner entered into a lease/purchase agreement, which in addition to the standard bond for deed language, included a provision allowing the seller to cancel the agreement and take possession if the purchaser failed to maintain certain property maintenance requirements. The seller filed suit on the basis that the purchaser had not maintained the property per the agreement. The trial court found in favor of the seller, allowing him to keep the $500,000.00 “nomjrefunda-ble”5 down payment, as well as the monthly payments made until suit was filed, which totaled $30,196.00.

The appellate court initially determined that the lease/purchase agreement was in fact a bond for deed contract. Id., 02-2054, p. 4, 866 So.2d at 880. The Court also determined that it was not against public policy for parties to a bond for deed contract to include other bases for cancellation of the contract besides non-payment. Id., 02-2054, p. 6, 866 So.2d at 881. However, the Court also found that appropriate adjustments must be made in failed bond for deed contracts. The vendor in a bond for deed contract is not entitled to retain all monies paid by the purchaser because such a would be inequitable, unreasonable and an illegal attempt to recover punitive damages. Id. Ultimately, the Court found that the vendor, Berthelot, was only entitled to an allowance for the fair rental value of the property while it was occupied by the purchaser. Id., 02-2054, p. 7, 866 So.2d at 882; also see, Scott v. Apgar, 238 La. 29, 113 So.2d 457 (La.6/25/59); Montz v. Theard, 01-0768 (La.App. 1 Cir. 2/27/02), 818 So.2d 181; Gray v. James, 503 So.2d 598 (La.App. 4 Cir.1987).

The Berthelot court vacated the judgment in favor of the vendor, and because the record did not allow for it to make a determination of fair rental value of the property, remanded the matter to determine same.

In this case, the trial court found, and the record before us supports, that it is unknown whether Regua ever occupied or rented the premises to others. The trial court found that the property was purchased in a damaged, uninhabitable condition, |fiand that nearly forty-one months after Regua took possession of the premises, only one side of the duplex was complete and the other side was ninety-five percent complete.

Although the trial court deemed the judgment to be final for purposes of appeal, it indicated that it would entertain argument on fair rental value and assessment of attorney fees. Neither party moved to do so in the trial court prior to the lodging of this appeal.

Accordingly, we find that based on the facts of this case, the trial court reached the correct result. To not award Regua reimbursement for the down payment, monthly payments, taxes and cost of repairs would be inequitable, unreasonable and an illegal award of punitive damages to the Sauciers.

For the reasons assigned, we affirm the judgment of the trial court.

AFFIRMED.

      . All of the facts reported herein are gleaned from pleadings in the record, appellate briefs, attached exhibits and the trial court's reasons for judgment. No transcript was provided for this Court's review.

      . The record includes receipts for all monies spent to renovate the property. The Sauciers did not argue that the value of their property was not increased by the amount of expenditures incurred in the renovation and improvements.

      . No evidence was introduced to prove that the enhanced value of the property was less than the amount stipulated as Regua’s costs for materials and labor in re-constructing the property.


author: TERRI F. LOVE, Judge.

text:
    Justin FERRIS v. DEPARTMENT OF POLICE.
    No. 2013-CA-0202.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 20, 2013.
    Raymond C. Burkart III, Burkart & Associates, L.L.C., Covington, LA, for Plaintiff/Appellant, Justin Ferris.

      Russell Bénnett Ramsey, Jr., Russell B. Ramsey, L.L.C., New Orleans, LA, for Defendant/Appellee, Department of Police.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO).
   TERRI F. LOVE, Judge.

| ¶ This appeal arises from the termination of a New Orleans police officer based upon charges of untruthfulness following the officer’s involvement in and statements made regarding a fatal high-speed automobile pursuit. The Civil Service Commission upheld the officer’s termination. We find that the record established that the Civil Service Commission’s decision to uphold the officer’s termination was not arbitrary or capricious, and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

New Orleans Police (“NOPD”) Officer Justin Ferris initiated an automobile pursuit after viewing an occupant toss a white powdered substance from the automobile. The pursuit became a high-speed police pursuit down a one-way street and Officer Ferris eventually lost sight of the automobile. However, he regained sight of the suspect automobile after it crashed into another automobile, which was not involved in the high-speed police pursuit. A woman in the uninvolved automobile died as a result of the crash with the suspect automobile.

The NOPD’s Police Integrity Bureau (“PIB”) began an investigation into Officer Ferris’ actions based on four counts of Neglect of Duty. Officer Ferris stated, in his statement taken during the investigation, that he “advised dispatch the vehicle had taken off and the pursuit was terminated.” However, PIB found Officer Ferris’ statement did not correlate with the facts because he did not notify | ¡¡.dispatch or his supervisor that the automobile pursuit was terminated. Thus, Officer Ferris was also charged with one violation of the NOPD’s “Honesty and Truthfulness” policy. Upon completion of the investigation, Officer Ferris received a disciplinary letter, which provided for twenty days of “working day suspension” for each of the four violations of Neglect of Duty and termination from the NOPD based on the charge of untruthfulness.

Officer Ferris then appealed the disciplinary decision to the Civil Service Commission (“CSC”). During the CSC hearing, Officer Ferris “stipulated that he violated internal rules regarding Neglect of Duty, as set forth in the August 31, 2011 disciplinary letter.” As to the charge regarding truthfulness, the CSC found that the “Appointing Authority” did not abuse its discretion in terminating Officer Ferris and denied his appeal. Officer Ferris’ devolutive appeal followed.

Officer Ferris asserts that the CSC’s judgment was legally erroneous, an abuse of discretion, and arbitrary.

STANDARD OF REVIEW

“The decision of the Civil Service Commission is subject to review on any question of law or fact upon appeal to this Court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review.” Cure v. Dep’t of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094. “When there are two permissible views of evidence, the fact finder’s choice cannot be manifestly erroneous.” Barquet v. Dep’t of Welfare, 620 So.2d 501, 505 (La.App. 4th Cir.1998). “A reviewing court should not reverse a commission conclusion as to the existence or absence of cause for dismissal unless the decision is arbitrary, capricious or an abuse of the commission’s discretion.” Walters v. Dep’t of Police, 454 So.2d 106, 113 (La.1984). “A decision by the Civil Service | ¡¡Commission is ‘arbitrary or capricious’ if there is no rational basis for the action taken by the Civil Service Commission.” Cure, 07-0166, p. 2, 964 So.2d at 1095.

The standard of review requires that we examine “two factors: (1) whether the appointing authority had good or lawful cause for taking the disciplinary action, and (2) whether the punishment imposed is commensurate with the offense.” Hills v. New Orleans City Council, 98-1101, p. 6 (La.App. 4 Cir. 12/9/98), 725 So.2d 55, 58. “Moreover, neither the Commission nor the reviewing court may serve as a de facto pardon board.” Chink Nguyen v. Dep’t of Police, 11-0570, p. 8 (La.App. 4 Cir. 8/31/11), 72 So.3d 939, 944. “ ‘[S]ym-pathy is not a legal standard.’ ” Id., quoting Lange v. Orleans Levee Dist., 10-0140, p. 17 (La.11/30/10), 56 So.3d 925, 936.

HONESTY AND TRUTHFULNESS POLICY

Officer Ferris contends that the CSC committed legal error, abused its discretion, and acted arbitrarily in upholding Officer Ferris’ termination from the NOPD for being found guilty of violating the Honesty and Truthfulness policy. Officer Ferris asserts that his intent to deceive was not proven, that the case presented to the CSC was a “tie,” and that termination was unwarranted.

NOPD officers are required “to be honest and truthful at all times, in their spoken, written, or electronic communications.” The Truthfulness policy “shall apply when an employee makes a materially false statement with the intent to deceive.”

Officer Ferris reviewed the video of the automobile pursuit on the same night of the pursuit. However, Officer Ferris contended that he was unaware that he could review the video prior to giving his statement during the PIB investigation. Officer Ferris informed the CSC that if he knew or thought that he [4failed to inform dispatch that he terminated the automobile pursuit, he would not have stated otherwise to PIB. Officer Ferris insisted that he did not lie, had no motivation to do so, and that he “incorrectly spoke” about terminating the pursuit prior to watching the video during “[t]he middle to the end” of giving his statement to PIB.

Officer Ferris testified, at the CSC hearing, that he did not intend to deceive anyone during the PIB investigation in order to mitigate his punishment. Officer Ferris stated to the CSC that he “genuinely believed that the pursuit had been terminated.” Officer Ferris stated that “everything happened so fast.”

During the CSC’s hearing, Sergeant Andre LeBlanc, who participated in the PIB investigation and took Officer Ferris’ PIB statement, testified that the “Incident Recall” sheet did not reflect that Officer Ferris cancelled the automobile pursuit. Further, Sergeant LeBlanc stated that Officer Ferris did not “notify communications or his supervisor that this pursuit was actually terminated” although Officer Ferris stated that he “advised dispatch the vehicle had taken off and the pursuit was terminated.”

Sergeant LeBlanc determined that Officer Ferris violated the Honesty and Truthfulness Policy based upon statements made during the PIB investigation. Specifically, Officer Ferris admitted to driving down a one-way street in the wrong direction and he falsely stated that he terminated the automobile pursuit. Sergeant LeBlanc stated that after Officer Ferris reviewed the video of the pursuit during his statement to PIB, Officer Ferris admitted that he did not inform dispatch or his supervisor that he terminated the pursuit. Sergeant LeBlanc testified that “[b]ased upon the evidence, my belief is that he intended to mislead me with reference to him terminating the pursuit.” Lastly, Sergeant LeBlanc had “no doubt” that 1 ^Officer Ferris was lying about terminating the pursuit.

Following the hearing, the CSC held that:

[b]ased on the facts contained in the disciplinary letter, the Appellant was clearly inaccurate when he stated that he terminated the pursuit and slowly approached the intersection where the collision occurred. In fact, he neither reduced his speed nor took any other steps that would indicate that his pursuit ever ended. However, a span of less than ten seconds is at issue and it is difficult to discern whether or not the Appellant intended to deceive. Reasonable minds could conclude that this part of his statement was intentionally misleading, though we would have preferred that Sgt. LeBlanc have asked a few clarifying questions regarding what actually happened after he “terminated the pursuit” before showing the Appellant the video....
We find that the Appointing Authority has satisfied its burden of proof, which is preponderance of the evidence, though the question is closer than we would prefer. While giving a statement in an internal investigation, the Appellant made material statements which were not true. The conclusion by the Appointing Authority that Appellant’s assertion that he “terminated the pursuit” was intended to deceive is supported by the evidence, notwithstanding the Appellant’s attempt at hearing to explain and mitigate the impact of the misleading parts of his statement. Therefore, we cannot say that the Appointing Authority abused its discretion by terminating the Appellant.

Officer Ferris stated that he informed dispatch that he terminated the automobile pursuit, when he did not. After reviewing the video of the automobile pursuit, Officer Ferris recanted his statement. Although Officer Ferris attempted to minimize his statement about terminating the pursuit, the appointing authority substantiated by a preponderance of the evidence that Officer Ferris made an untrue statement during the PIB investigation. Thus, we do not find that the CSC was arbitrary and capricious, abused its discretion, or committed legal error in upholding the sustained charge and termination of Officer Ferris. Accordingly, we affirm.

| JJECREE

For the above-mentioned reasons, we do not find that the CSC was arbitrary and capricious, abused its discretion, or committed legal error in upholding Officer Ferns’ termination and affirm.

AFFIRMED.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Reginald R. SPURLOCK.
    No. 2013-KA-0068.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 20, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Donald G. Cassels, III, Assistant District Attorney, Donna Andrieu, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge SANDRA CABRINA JENKINS).
   ROLAND L. BELSOME, Judge.

It Reginald Spurlock seeks review of his conviction and sentence. Mr. Spurlock was charged with La. R.S. 14:110(A), simple escape, and sentenced to serve four years at hard labor, consecutive with any other sentence imposed.

STATEMENT OF CASE

The State filed a bill of information charging Mr. Spurlock with one count of simple escape. He pled not guilty and was appointed counsel. At a subsequent hearing the court found probable cause to move forward with the charges against Mr. Spurlock. On February 28, 2012, Mr. Spurlock’s counsel filed a motion waiving his right to jury trial and requesting a judge trial.

After trial, the judge found Mr. Spur-lock guilty as charged. He filed a motion for new trial and a motion for appeal. The district court denied his motion for new trial and granted his motion for appeal.

TERRORS PATENT

A review of the record reveals one error patent that does not require corrective action by this Court. Mr. Spurlock filed a motion for appeal after trial, but before sentencing, and the district court granted the appeal before sentencing. Although a defendant can take an appeal only from a conviction and sentence, we have held that an appeal taken prior to sentencing will not be dismissed “because dismissing the appeal would simply result in a delay of the appellate process and hinder defendant’s right to appeal” State v. Warren, 538 So.2d 1036, 1037 (La.App. 4 Cir.1989), quoting from State v. Martin, 483 So.2d 1223, 1225 (La.App. 4 Cir.1986). Thus, there is no need for us to correct this error in the instant appeal.

FACTS AND DISCUSSION

Mr. Spurlock was arrested for attempted purse snatching. Once in custody, he was brought to the Eighth District Police Station. While in custody, Mr. Spurlock ran out of the precinct and had to be apprehended. At that time, the officer placed him under arrest for simple escape. Following a bench trial, he was sentenced to serve four years at hard labor, consecutive with any other sentence imposed.

On appeal, Mr. Spurlock argues that the record fails to support that he knowingly and intelligently waived a jury trial. He maintains that the minute entry indicating that he elected a judge trial is not enough to prove that his waiver was made with his informed consent.

According to the record, his counsel filed a “Waiver of Jury Trial and Request for Judge Trial” but there is no indication that Mr. Spurlock was informed of what the filing entailed and if he knowingly opted out of a jury trial. Further, Mr. Spurlock contends that there is a conflict between the trial transcript and the | .¡minute entry, and that in accordance with State v. Fortenberry, 11-0022 (La.App. 4 Cir. 7/27/11), 73 So.3d 391, the transcript controls. He seeks remand for an evidentiary hearing to determine if he knowingly and intelligently waived his right to a jury trial. See State v. Richardson, 02-2348 (La.App. 4 Cir. 2/19/03), 841 So.2d 39.

According to the State, the record supports that counsel for Mr. Spurlock filed a waiver, in open court, with Mr. Spurlock present, and Mr. Spurlock did not object to the waiver, indicating that he acquiesced to a judge trial. We disagree.

Mr. Spurlock accurately represents the record; there is no transcript of him specifically acknowledging waiver of a jury trial. In State v. Thompson, 2002-1682 (La.App. 4 Cir. 5/21/03), 848 So.2d 703, this Court discussed the importance of having an acknowledgement by the defendant on the record to support a waiver of a jury. In Thompson, the defendant was charged with three misdemeanors which threatened his ability to maintain his wildlife and fisheries license. This Court found that the only indication of a waiver of a jury trial by the defendant, Thompson, was when his counsel stated that they wanted to proceed with a judge trial, but on record, there was nothing to indicate that he was made aware of the waiver and its meaning. This Court stated:

Where there is no evidence in the record, however, that the defendant specifically waived his right to a jury trial, this court has found that the case must be remanded for an evidentiary hearing to determine whether the defendant knowingly waived this right. That is, every reasonable presumption against waiver of the right to trial by jury must be indulged. In Richardson, the minute entry showed that the trial court informed the defendant of his right to trial by jury; the docket master and minute entry stated that the defendant requested trial by jury. No transcript of a waiver of trial by jury could be found. If the trial court finds that the defendant did not make a valid waiver of his right to a jury trial, the court must set aside his conviction and sentence and grant him a new trial.

4Thompson, 2002-1682, p. 10, 848 So.2d at 709 (citations omitted).

This Court has addressed how the district court can be thorough in confirming that the defendant is knowingly and intelligently apprised of his rights stating: “[i]t is clear that the preferred practice for obtaining a valid waiver of the right to trial by jury is for the trial judge to advise the defendant personally on the record of his right to trial by jury and require the defendant to waive the right personally either in writing or by oral statement in open court on the record.’ ”; State v. Martin, 2010-1356, p. 8 (La.App. 4 Cir. 8/24/11), 72 So.3d 928, 935 (citations omitted). The trial judge is not required to engage the defendant in a Boykin-like colloquy; the briefest of exchanges and acknowledgement by the defendant will suffice. See State v. Bryant, 06-1154 (La.App. 4 Cir. 1/10/07), 950 So.2d 37. However, without a transcript to support the defendant’s knowing and intelligent waiver, we cannot find with certainty that he was made aware of and understood the waiver. For that reason, this Court is remanding the matter for an evidentiary hearing on whether Mr. Spurlock knowingly and intelligently waived his right to a jury trial.

REMANDED WITH INSTRUCTIONS.


author: STEWART J.

text:
    David R. ROMERO, Plaintiff-Appellant v. CADDO PARISH COMMISSION, Defendant-Appellee.
    No. 48,434-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 27, 2013.

      James D. Caldwell, Baton Rouge, for Appellant.
    Charles C. Grubb, Shreveport, Caddo Parish Attorney, Donna Y. Frazier, Tallu-lah, Assistant Parish Attorney, for Appel-lee.
    Before STEWART, CARAWAY and DREW, JJ.
   STEWART J.

| ¶ David R. Romero (the “plaintiff’) is appealing the trial court’s judgment rendered in favor of the Caddo Parish Commission (the “CPC”), dismissing his request for the issuance of a preliminary injunction to enjoin the construction and improvement of a water line (the “Golds-berry Road Water Line Project”). For the reasons discussed below, we find that the trial court did not err in denying the preliminary injunction, and we affirm the trial court’s judgment.

FACTS

Pursuant to Resolution No. 19 of 2012, the CPC approved a Notice of Intention to construct and improve a waterline on certain property located in Caddo Parish as provided by Section 52-150 of the Caddo Parish Code of Ordinances. On June 7, 2012, the CPC adopted Local Assessment Ordinance No. 47 of 2012, ordering the construction and improvement of a waterline within the right-of-way of a portion of Goldsberry Road being located in a portion of Lots 7, 14, 16, 17, and 20, of Shadow Pines Estates, Unit 1; Lots 1, 10, 11 and 12, of Shadow Pines Estates, Unit 2; Lots 1, 2, 3, and 4, of Shadow Pines Estates Unit 5; and Lots 5, 6, 7, 8, 9, 10, 11, 12, of Shadow Pines Estates, Unit 6, said subdivision being located in Section 34, Township 16 North, Range 13 West, Caddo Parish for the year 2012. The plaintiff is the owner of Shadow Pines Estates, Lot 10, Unit 6.

The north side of Goldsberry Road intersects with Harris Lane, while the south side intersects with Goldsberry Circle. The proposed Goldsberry Road Water Line Project consists of an 8-inch water line pipe that runs from |2a “stub-out” reducer off of a 24-inch line, on the north side of Goldsberry Road, and travels south along the eastern side of Goldsberry Road down to its southern end. Properties on the western side of Goldsberry are to be connected by drilling under the street. Fire hydrants and an 8-inch stub-out are to be located at the intersections with Harris and Goldsberry Roads, and every other 500 feet along the remainder of the project.

The plaintiff sought a preliminary injunction, and ultimately a permanent injunction, to prevent the CPC from proceeding with the Goldsberry Road Water Line Project. More specifically, he sought to restrain the CPC from proceeding with the construction and improvement of a water main within a portion of the right-of-way for Goldsberry Road, located in Caddo Parish. The plaintiff asserted that the CPC lacked the statutorily required consent of 60% of owners of affected properties. The plaintiffs petition was filed on July 6, 2012.

The trial was held on July 25, 2012. The trial court issued a judgment in favor of CPC, denying the plaintiffs request for the issuance of a preliminary injunction. This appeal ensued.

LAW AND DISCUSSION

As his sole assignment of error, the plaintiff argues that the trial court erred in excluding from its calculation all of the frontage of a lot (Lot 5, Unit 1), or alternatively all of the frontage of the subdivision, abutting the street or right-of-way along which the proposed water line is to be constructed. He contends that the requirement of the applicable statutory |aauthority was not met. He refers to La. R.S. 33:3822, which states that the governing authority of a parish may construct a water line upon petition of property owners comprising not less than 60% of the frontage of all lots or parcels of real estate abutting the street or right-of-way along which a proposed water line is to be constructed. ■

An injunction proceeding is an ordinary proceeding in which the plaintiff seeks a permanent injunction compelling the defendant to do an act or barring him from acting. It invariably includes summary proceedings-the temporary restraining order (TRO) and the preliminary injunction to compel or bar the disputed act pending a determination on the merits of the ordinary proceeding. Thus, the TRO and the preliminary injunction may only be obtained as adjuncts to a suit for permanent injunction. Injunctive relief may be granted in cases where irreparable injury, loss or damage may otherwise result to the applicant, and in other cases specifically provided by law. La. C.C.P. art. 3601; Frank Maraist, lA La. Civ. L. Treatise, Civil Procedure-Special Proceedings, § 1.2 (2012 ed.).

A preliminary injunction is an interlocutory procedural device designed to preserve the existing status quo pending a full trial on the merits of the case. Longleaf Inv., L.L.C. v. Cypress Black Bayou Recreation Ctr. & Water Conservation Dist., 48,180 (La.App.2d Cir.6/26/13), 118 So.3d 505; State ex rel. Caldwell v. Town of Jonesboro, 47,896 (La.App.2d Cir.12/19/12), 108 So.3d 217, writ denied, 13-0173 (La.1/23/13), 105 So.3d 60. An applicant for a preliminary injunction has the burden of making a prima facie showing that he will prevail on the merits of the case, i.e., that 14he will obtain a permanent injunction based upon proof of irreparable injury. Longleaf, supra, White v. St. Elizabeth B.C. Bd. Of Dir., 45,213 (La.App.2d Cir.6/2/10) 37 So.3d 1139. A showing of irreparable injury is not necessary, however, when the conduct sought to be restrained is unconstitutional or unlawful, i.e., when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law and/or violation of a constitutional right. State ex rel. Caldwell, supra; Jurisich v. Jenkins, 99-0076 (La.10/19/99), 749 So.2d 597. The trial court has great discretion in granting or denying a preliminary injunction. Willis-Knighton Health Sys., Inc. v. Northwest Council of Gov’ts, 48,141 (La.App. 2 Cir. 4/10/13), 116 So.3d 55; Louisiana Granite v. LA Granite Countertops, L.L.C., 45,482 (La.App.2d Cir.8/18/10), 47 So.3d 573, writ denied, 2010-2354 (La.12/10/10), 51 So.3d 733; Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270 (La.App.1st Cir.3/24/05), 906 So.2d 660.

Both parties agree that the applicable statutory authority to construct the water line is La. R.S. 33:3822 et seq. La. R.S. 33:3822 states in pertinent part:

The governing authority of any parish, municipality or waterworks district is hereby vested with full power and authority, after having been petitioned by sixty percent of the resident property owners of any such political subdivision, or by a vote of a majority in number and amount of the resident property taxpayers qualified to vote under the constitution and laws of this state who vote at an election held for that purpose in the manner provided by R.S. 39:501 through 39:518, in the discretion of the governing authority, to establish, acquire, construct, improve, extend and maintain with said political subdivision a waterworks system or systems ... or, if the area which is to be served be an area within a parish, municipality or waterworks district already having water facilities or which may be able to acquire such facilities, within or without such \ ¡(political subdivision, then by the petition of the property owners in such area owning property comprising not less than sixty percent of the frontage of all lots or parcels of real estate to be improved or benefited by the laying of such water lines or the installations of such improvements. (Emphasis added.)

Further, La. R.S. 33:3826 states in part:

If a local or special assessment has been levied the report shall also show the amount of the cost chargeable to each lot or parcel of real estate to be improved or benefited in the proportion that its front footage bears to the total front footage to be assessed, as shall be determined by the governing authority, provided, however, that where any water line is constructed upon more than one side of any lot or parcel of real estate, the total front footage of such lot of parcel of real estate to be assessed shall be determined by taking the total front footage of said lot or parcel of real estate abutting all water lines to be constructed and dividing such total front footage by two. The report shall further describe each lot or parcel of real estate to be assessed with sufficient clearness to identify it. The words “front footage” as used in R.S. 33:3822 through 33:3835 shall mean the footage of each lot or parcel of real estate abutting the street or right of way along which the water line is constructed. (Emphasis added.)

Section 52-150 of the Caddo Parish Code of Ordinances states:

Sec. 52-150. Construction, extension of waterworks systems.
It is hereby declared to be the policy of the Caddo Parish that in all extensions of waterworks systems authorized by Caddo Parish under the authority of La. R.S. 33:3822, the Parish shall assume 10% of the cost of any such improvements and the adjoining property owners shall assume 90% thereof.

The plaintiff and CPC stipulated in open court that if the calculations included the front footage of Lot 5, Unit 1 in its entirety, then the Goldsberry Road Water Line Project would only have been petitioned by 59.36% of the landowners, lacking the required 60% pursuant to La. R.S. 33:3822. Apparently, the owner of the lot at issue had not agreed to this project at the time of the adoption of the ordinance. In the event that the lot Ris not included in the calculations, the parties in this matter stipulated that the project met La. R.S. 33:3822s requirements.

The 60% requirement stated in La. R.S. 33:3822 refers to the “frontage of all lots or parcels of real estate to be improved or benefited by the laying of such water lines or the installations of such improvements.” La. R.S. 33:3826, which discusses levying assessments to each lot or parcel of real estate to be improved or benefited, states that “the words ‘front footage’ as used in R.S. 33:3822 through 33:3835 shall mean the footage of each lot or parcel of real estate abutting the street or right of way along which the water line is constructed.” After reading La. R.S. 33:3826 as a whole, we can easily ascertain that the “front footage” definition is only applicable to those lots that will be improved or benefited.

The plaintiff argues that the CPC erred in including only the portion of Lot 5, Unit 1, that abuts the proposed water line in its calculation, rather than its entirety abutting Goldsberry Road. Further, he argues that Lot 5, Unit 1 in its entirety should have been used to determine “front footage” for determining the sufficiency of the petition. The plaintiff asserts that including the lot iri its entirety is consistent with the assessment procedures pursuant to La. R.S. 33:3826.

After a careful review of the applicable statutes, we disagree with the plaintiffs contentions. La. R.S. 33:3822 et seq., clearly and unambiguously provides that only the lots or units abutting the proposed improvements should be included in the calculation to determine if the petition met the requisite 60% of property owners element. Therefore, the 17portion of Lot 5, Unit 1, not abutting the proposed water line project is irrelevant and should not be included in the calculations to determine the sufficiency of the petition. Further, Lots 5 and 8 of Unit 1 already abut existing water lines that afford them direct access to city water. Therefore, they will not be benefitting from the Goldsberry Road Water Line Project.

The trial court did not err in denying the plaintiffs prayer for injunctive relief. The record is void of any evidence that would support a prima facie showing of irreparable injury to the plaintiff. Further, none of the evidence presented showed that the Goldsberry Road Water Line Project was unlawful or a deprivation of constitutional rights. For these reasons, we find that the plaintiffs assignment of error is without merit.

CONCLUSION

For the reasons discussed above, we affirm the trial court’s judgment. Costs of this appeal are assessed to the plaintiff, David Romero.

AFFIRMED.

      . Kenneth Ward, Caddo Parish Project Manager, confirmed that a "stub-out” is "a place where you can easily hook a new line.”


text:
    Vanessa DAVIS v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY and Jennifer Webb.
    No. 2013-CA-0244.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 27, 2013.

      Robert P. Charbonnet, Jr., James S. Rees, IV, Charbonnet Law Firm, L.L.C., Metairie, LA, James S. Rees, III, Law Firm of James S. Rees III, Covington, LA, for Plaintiff/Appellant/Vanessa Davis.
    Gregory C. Fahrenholt, William P. Con-nick, Michael S. Futrell, Connick and Con-nick, L.L.C., Metairie, LA, for Defendant/Appellee/Old Republic Insurance Company.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge JOY COSSICH LOBRANO).
   TERRI F. LOVE, Judge.

| ]This appeal arises from the trial court’s granting of Old Republic Insurance Company’s (“Old Republic”) motion for summary judgment dismissing it from the suit filed by Vanessa Davis (“Ms. Davis”) seeking damages for injuries sustained as a result of an automobile accident. The trial court concluded that Old Republic presented sufficient proof to establish that Ms. Davis would be unable to show she is entitled to any coverage under the automobile liability insurance policy Old Republic issued to Ms. Davis’ employer, Veolia Transportation Services, Inc. (“Veolia”). On appellate review, we find Old Republic proffered evidence of Veolia’s execution of the waiver form for uninsured and under-insured motorist coverage (“UM coverage”) sufficient to establish that Veolia rejected coverage, and thus, precludes coverage for Ms. Davis. Accordingly, we find that the trial court did not manifestly err in granting Old Republic’s motion for summary judgment and dismissing all of Ms. Davis’ claims against Old Republic.

1 .FACTUAL AND PROCEDURAL BACKGROUND

In November 2010, Ms. Davis, an employee of Veolia, was operating a paratran-sit vehicle in the course and scope of her employment traveling westbound on I — 10 near Morrison Road when her vehicle was struck from the rear by a vehicle owned by Elaine Straham and operated by Jennifer Webb. As a result of the collision, Ms. Davis sustained damages.

Ms. Davis has a pending worker’s compensation claim against her employer Veo-lia, who has paid all medical and indemnity expenses to date resulting from the accident.

Old Republic issued a business auto insurance policy to Veolia with effective dates July 2010 to July 2011 and that was in effect on the date of the accident in November 2010. Additionally, Richard Rabs (“Mr. Rabs”), Veolia’s Vice President of Claim and Risk Management, executed three UM waiver forms in June 2010, rejecting UM coverage for bodily injury to a Veolia employee arising out of an accident during the course and scope of employment.

In March 2011, Ms. Davis filed a claim for damages against Allstate Property and Casualty Insurance Company and Ms. Webb. Subsequently, in December 2011, Ms. Davis added Old Republic as a defendant alleging that Old Republic provided a policy of automobile liability insurance coverage to Veolia as well as provided UM coverage.

Thereafter, both parties filed motions for summary judgment. Ms. Davis alleged in her motion for summary judgment that the UM waiver forms are invalid labe cause the forms were not duly executed and the forms were materially altered. Conversely, in its motion for summary judgment, Old Republic averred that Veolia waived coverage as evidenced by validly executed UM waiver forms. The trial court granted summary judgment in favor of Old Republic and in a written judgment dismissed all claims against Old Republic with prejudice. This appeal follows.

STANDARD OF REVIEW

On appellate review, motions for summary judgment are reviewed de novo. Galatas v. Wallace C. Drennan, Inc., 07-0567, p. 2 (La.App. 4 Cir. 1/23/08), 975 So.2d 660, 661. See also Champagne v. Ward, 03-3211, p. 4 (La.1/19/05), 893 So.2d 773, 776. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This Court in Galatas, 07-0567, p. 2, 975 So.2d at 661, explained:

Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966(A)(2). The mover bears the initial burden of proof to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). If the mover will not bear the burden of proof at trial, he must point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966(C)(2). [A]n adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth |4specific facts establishing that there is a genuine issue of material fact for trial.’ La. C.C.P. art. 967(B).

MOTION FOR SUMMARY JUDGMENT

Ms. Davis claims that the trial court erred in granting Old Republic’s motion for summary judgment because: (1) the Commissioner of Insurance waiver form was materially altered; (2) Old Republic never presented evidence to link any of the three waiver forms to the vehicle Ms. Davis operated; (3) the policy number on the waiver form does not match the policy number on the declaration page; (4) Veo-lia, as a juridical person, was required to have a legal representative sign the waiver form and print the name of the named insured on the waiver form; and, (5) Old Republic failed to offer sufficient evidence to support its motion for summary judgment.

Materially Altered UninsuredlUnderin-sured Motorist Form

La. R.S. 22:1295 establishes the statutory provisions governing uninsured motorist coverage. In particular, La. R.S. 22:1295(l)(a)(ii) sets forth that rejection of uninsured motorist coverage “shall be made only on a form prescribed by the Commissioner of Insurance.” La. R.S. 22:1295(l)(a)(ii). A properly completed and signed waiver form creates a rebutta-ble presumption that the insured knowingly rejected UM coverage. Id.

Because “any exclusion from coverage in an insurance policy must be clear and unmistakable,” the insurer bears the burden of proving that its named insured rejected in writing the UM coverage “equal to bodily injury coverage or selected lower limits.” See Duncan v. U.S.A.A. Ins. Co., 06-0363, p. 4-5 (La.11/29/06), 950 So.2d 544, 547.

|fiIn this case, Old Republic offered three individual UM waiver forms which it claims prove that the Veolia rejected UM

DAVIS v. ALLSTATE PROPERTY & CAS. INS. CO. Cite as 129 So.3d 811 (La.App. 4 Cir. 2013) La. 815 coverage. The Louisiana Commissioner of Insurance published in August 2008 Bulletin No. 08-02, issuing the revised UM form “in response to the myriad of issues that Louisiana courts have recently examined ... including ... what constitutes a properly completed form.” The revised UM form, which was effective at the time Veo-lia executed its UM waiver forms in June 2010, required that the following tasks must be completed by the insured: “(1) his/her signature; (2) his/her printed name to identify his/her signature; (3) the date the form is completed; (4) initials to select/reject uninsured/underinsured motorist bodily injury (UMBI) coverage prior to signing the form.” Each of the three UM forms executed by Mr. Rabs on behalf of Veolia as the Vice President of Claim and Risk Management and legal representative included: (1)Mr. Rabs’ signature; (2) Mr. Rabs’ printed name; (3) the date each form was completed; and (4) Mr. Rabs’ initials in the appropriate space rejecting coverage. Each form also contains both Veolia and Old Republic’s name in the bottom right corner. Additionally, each form references Veolia’s policy number, MWTB 20991. [2]In her first assignment of error, Ms. Davis avers that the waiver form was materially altered when Old Republic identified the vehicle class at the top of the waiver form. The record demonstrates that Old Republic classified UM bodily injury coverage based on the weight of the vehicle, including vehicles weighing between 0-20,000 pounds, vehicles weighing 20,000 to 50,000 pounds, and vehicles weighing 50,000 or more. Ms. Davis contends that “by altering the |ficommissioner form and adding [cjatergories” the form is “ambiguous,” and modifies the Louisiana uninsured motorist coverage scheme. [3] To support this contention, Ms. Davis points to Howell v. Balboa Ins. Co., 564 So.2d 298 (La.6/29/90). In Howell, the Louisiana Supreme Court held that UM coverage follows the insured, not the vehicle. Id. at 301-02. While UM coverage attaches to the person of the insured and not the vehicle, it is evident from the three forms that Veolia Transportation intended to waive all UM coverage regardless of vehicle weight. Therefore, we conclude that the UM forms were not so materially altered that the forms are invalid. Policy Number [4] In her second assignment of error, Ms. Davis avers that the policy number on the UM forms does not match the policy number referenced on the declaration page of the Old Republic policy. On each of the UM forms for the 2010 to 2011 policy period, the policy number is identified as MWTB 20991. The Old Republic policy’s declaration page makes reference to the subject policy number, MWTB 20991 and underneath a second policy number, MWTB 20660, followed by the description “previous policy number.” Additionally, the declaration page for the 2009 to 2010 policy period further proves that Old Republic, as a practice, references the policy number for the new policy period first followed by the policy number for the previous policy period. Under Ms. Davis’ interpretation of the policy documents, the inclusion of the previous policy number on the declaration form creates a valid basis for finding a defect in the UM forms. However, we find the mere reference to the previous policy number, when the current policy number is identified on both the UM form |7and declaration page, is not a defect that warrants granting summary judgment. Thus, we find that this assignment of error lacks merit.

Veolia’s Legal Representative

In Duncan v. U.S.A.A. Ins. Co., the Louisiana Supreme Court interpreted the Louisiana Commissioner of Insurance’s UM form in existence at the time and noted the six tasks the insured must perform: “(1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen (available in options 2 and 4), then filling in the amount of coverage selected for each person and each accident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date.” Duncan, 06-0363, p. 11-12 (La.11/29/06), 950 So.2d 544, 551.

Ms. Davis avers that the UM forms are invalid because although Veolia’s legal representative, Mr. Rabs, may sign for the corporation, Mr. Rabs was required to print Veolia’s name to satisfy the requirements set forth by the Louisiana Supreme Court. In Harper v. Direct General Ins. Co., 08-2874 (La.2/13/09), 2 So.3d 418, the Supreme Court reversed the lower court rulings finding that UM waiver forms were defective where a legal representative had printed the corporate name instead of his own name on the form. The Court in Harper stated:

“our opinion in Duncan reveals that we used the disjunctive “or” with regard to tasks # 3 and # 4: “(3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative.” [emphasis added] Nothing in Duncan links these two separate tasks into a single task, as the district court suggested. To the contranj, as long as the name of the named insured, is printed and the legal representative signs the form, both tasks are satisfied,. Any other interpretation would lead to absurd results, because if the name of the corporate insured is printed as the named insured, it is obvious the corporate insured cannot sign its name, but must act through its legal representative.

08-2874, p. 3 (La.2/13/09), 2 So.3d 418, 419-20. (emphasis added).

The Supreme Court concluded that the legal representative could permissibly print the corporation’s name on the form, but the case does not require that the name of the corporation be printed under the signature of the legal representative.

In support of its motion for summary judgment, Old Republic attached the UM forms as well as the affidavit of Mr. Rabs. In his affidavit, Mr. Rabs attested he was authorized “to act as a legal representative of Veolia in the procurement of commercial auto liability insurance policies and the election of coverage under such policies.” The UM forms waiving coverage show Mr. Rabs signed and printed his name in his capacity as Vice President of Claim and Risk Management and legal representative of Veolia. Moreover, each of the UM forms also include the corporation’s printed name in the bottom right corner. For these reasons, we find this assignment of error is without merit.

Sufficiency of Evidence

In her final assignment of error, Ms. Davis contends that Old Republic failed to provide the trial court with sufficient evidence to support the granting of summary judgment. Namely, Ms. Davis claims that Old Republic did not provide a certified copy of its policy or the UM forms, and Mr. Rabs’ affidavit fails to attest to which of the three UM forms he executed waived UM coverage.

A review of the record demonstrates that Ms. Davis has not previously contested the authenticity of the policy or UM forms in the trial court and does so for the first time on appeal. Because Ms. Davis did not raise the issue at the trial court level, we decline to consider this argument on appeal. See Johnson v. Orleans Parish School Board, 05-1038, p. 6 (La.App. 4 Cir. 5/3/06), 932 So.2d 687, 690-91; Johnson v. State, 02-2382, p. 4 (La.5/20/03), 851 So.2d 918, 921.

Even so, this Court in Grelle v. Youngblood, 96-2210 (La.App. 4 Cir. 3/26/97), 691 So.2d 279 held that uncerti-fied copies of insurance policies and declaration sheets filed into the record are competent evidence. This Court stated:

The same rule applies to uncertified copies of insurance policies and declaration sheets which are filed in the record. This court has previously held in Lala v. Schoen Life Insurance Co., 342 So.2d 1283 (La.App. 4th Cir.1977) as follows: “The fact that the insurance policy specimen is uncertified standing alone is not necessarily fatal to the judgment.” Id. at 1284, citing Nemeroff v. Dolphin Swimming Pool Co., 306 So.2d 94 (La.App. 4th Cir.1974). In the instant case, Mr. Grelle does not contest the authenticity of the St. Paul insurance policy attached to State Farm’s motion for summary judgment, but simply raises a technical objection based on competence of the evidence. Because nothing in the record calls the authenticity of the policy into question, we find that the policy excerpts are competent evidence and therefore were properly considered by the trial court in deciding the motion for summary judgment in State Farm’s favor.

Grelle, 96-2210, p. 4, 691 So.2d at 282.

Similar to Grelle, we find Ms. Davis raises the authenticity issue as a technical objection. As this Court has previously determined uncertified copies of insurance policies and declaration sheets filed in the record are competent evidence, the trial court properly considered the policy, declaration page and UM forms in granting Old Republic’s summary judgment. Accordingly, we find this assignment of error lacks merit.

Additionally, we find no merit to Ms. Davis’ argument that Mr. Rabs’ affidavit fails to attest to which of the three UM forms he executed waived UM coverage. As previously discussed, the record is clear that Veolia, through its legal representative, intended to waive all UM coverage when it properly executed all three UM forms.

| ^DECREE

For the foregoing reasons, we conclude that the motion for summary judgment was properly granted and affirm.

AFFIRMED.

      . The written judgment does not offer the trial court's reasoning for granting Old Republic’s motion for summary judgment.