text:
    Paul Thomas OLSEN v. Lynn Cooper OLSEN, Wife of Paul Thomas Olsen.
    No. 12-CA-737.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.

      Wiley J. Beevers, Raylyn R. Beevers, Steven M. Mauterer, Jared M. Newchurch, Attorneys at Law, Gretna, LA, for Plaintiff/Appellee.
    R.A. Osborn, Jr., Attorney at Law, Harvey, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

|2On appeal, Lynn Olsen challenges the trial court’s denial of her exception of res judicata and the grant of her ex-husband’s motion to extinguish periodic spousal support. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Paul Thomas Olsen and Lynn Cooper Olsen were married on December 19, 1969, and were granted a judgment of divorce on November 22, 2005. In that judgment, Paul Olsen and Lynn Olsen consented to various issues involving use of the family home and spousal support. With regard to spousal support, the parties agreed that “Paul Thomas Olsen shall pay periodic spousal support to Lynn Cooper Olsen in the amount of $700.00 monthly, payable in equal semi-monthly installments of $350.00, payable on the first and fifteenth days of each month, the first payment being due on the 1st day of December, 2005.”

Thereafter, on February 22, 2011, Paul Olsen filed a motion to extinguish periodic spousal support on the basis that Lynn Olsen, on June 1, 2010, began | .¡cohabiting with Gary Gregory in the manner of married persons. This motion was first considered by the domestic hearing officer who recommended that Paul Olsen’s motion to extinguish spousal support be granted pursuant to LSA-C.C. art. 115 based on her finding that Lynn Olsen and Gary Gregory were cohabiting in the manner of married persons. On April 20, 2011, the recommendation of the hearing officer was made the interim judgment of the court.

Lynn Olsen thereafter filed an objection to the hearing officer’s recommendation and interim order requesting a de novo review in the district court. She also filed an exception of res judicata arguing that Paul Olsen was precluded from raising the issue of spousal support because the parties had previously entered into a consent judgment regarding spousal support and that judgment has since become final.

On July 26, 2011, the district court conducted a hearing on Lynn Olsen’s exception of res judicata and her objection to the recommendation of the hearing officer. After considering the arguments of counsel and the evidence presented, the trial court denied Lynn Olsen’s exception of res judi-cata and granted Paul Olsen’s motion to extinguish spousal support, finding that the parties were living together “in a manner of married persons.” On August 8, 2011, the trial court signed a written judgment which denied Lynn Olsen’s exception of res judicata and her objection to the hearing officer’s recommendation and interim order. Lynn Olsen thereafter appealed.

On February 28, 2012, this Court dismissed Lynn Olsen’s appeal because the record did not contain a signed judgment on Paul Olsen’s motion to extinguish spousal support. This Court further noted that the judgment overruling the peremptory exception of res judicata is interlocutory and thus not appealable. Olsen v. Olsen, 11-1001 (La.App. 5 Cir. 2/28/12), 88 So.3d 1158. On July 18, |42012, the trial court signed an amended judgment which denied Lynn Olsen’s exception of res judi-cata, affirmed the April 20, 2011 recommendation of the hearing officer, and terminated Paul Olsen’s obligation to pay spousal support, finding that “Lynn Cooper Olsen has cohabited with a person of the opposite sex in the manner of married persons.” Lynn Olsen again appeals.

DISCUSSION

On appeal, Lynn Olsen first argues that the trial court erred in denying her exception of res judicata. She contends that the doctrine of res judicata applies and precludes Paul Olsen from raising the issue of spousal support because the parties had previously entered into a consent judgment regarding spousal support and that judgment has since become final.

In the instant case, the parties agreed, as reflected in the judgment of divorce, to the amount of spousal support as follows: “Paul Thomas Olsen shall pay periodic spousal support to Lynn Cooper Olsen in the amount of $700.00 monthly, payable in equal semi-monthly installments of $850.00, payable on the first and fifteenth days of each month, the first payment being due on the 1st day of December, 2005.”

A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. LSA-C.C. art. 3071. A compromise precludes subsequent litigation based on the matter that was compromised. LSA-C.C. art. 3080. It is well settled that a valid compromise can form the basis of a plea of res | -judicata because a compromise has the legal efficacy of a judgment. Hamsa v. Hamsa, 05-219 (La.App. 5 Cir. 12/27/05), 919 So.2d 776, 778.

The doctrine of res judicata is set forth in LSA-R.S. 13:4231, et seq. The essence of the doctrine is that a valid final judgment is conclusive between the parties, and all causes of action arising out of the transaction or occurrence that is the subject of the suit are extinguished and merged into a judgment in favor of the plaintiff, or are extinguished and merged into a judgment in favor of the defendant as to preclude subsequent action. This bars the subsequent relitigation of any issue that was actually litigated and determined if that determination was essential to the judgment. Riche v. Riche, 09-1354 (La.App. 3 Cir. 4/7/10), 34 So.3d 1004, 1008.

LSA-R.S. 13:4232 sets forth exceptions to the general rule of res judicata. In particular, Paragraph B of that statute addresses res judicata as it applies to actions for divorce and those matters incidental to divorce, including spousal support. It reads as follows:

In an action for divorce under Civil Code Article 102 or 103, in an action for determination of incidental matters under Civil Code Article 105, in an action for contributions to a spouse’s education or training under Civil Code Article 121, and in an action for partition of community property and settlement of claims between spouses under R.S. 9:2801, the judgment has the effect of res judicata only as to causes of action actually adjudicated.

This provision serves to limit the application of the doctrine of res judicata in divorce proceedings and certain matters incidental to divorce, including actions for spousal support. Guillory v. Guillory, 09-988 (La.App. 3 Cir. 2/3/10), 29 So.3d 1288, 1292. Moreover, consent judgments are generally subject to modification or termination by a showing of a change in circumstance of either party, including termination of support pursuant to LSA-C.C. art. 115. Rosenfeld v. Rosenfeld, 11-686 (La.App. 5 Cir. 3/13/12), 90 So.3d 1077, 1080.

LTo support her argument that res judi-cata is applicable to the circumstances herein, Lynn Olsen relies heavily on this Court’s decision in Hamsa v. Hamsa, supra. That case is clearly distinguishable from the instant case. In Hamsa, this Court was faced with the issue of whether the ex-wife’s remarriage nullified the terms of the consent judgment reached between the parties regarding alimony. In the consent judgment, Rudolph Hamsa agreed to pay Cynthia Hamsa the full sum of $47,000 for alimony and spousal support inclusive of all past claims for spousal support, for all future claims, and for all claims for costs and attorney fees. The consent judgment further provided that it represented a compromise of the full claims of all alimony issues either party had against each other. After Cynthia Hamsa remarried, Rudolph Hamsa ceased the payment of the monthly installments. Thereafter, Cynthia Hamsa filed a motion to make all terms of the consent judgment executory, and Rudolph Hamsa filed a motion seeking return of all alimony payments made after his former wife’s remarriage. Based on the previous execution of the consent agreement between the parties, Cynthia Hamsa then filed an exception of res judicata to Rudolph Hamsa’s pleadings.

The trial court granted Cynthia Hamsa’s exception of res judicata, and this Court affirmed that ruling. This Court found that under the circumstances, the provisions of LSA-C.C. art. 115 have no application where a lump sum alimony judgment included a significant past obligation. This Court further found that as the issue of alimony was fully litigated between the parties and resulted in a valid compromise agreement, the principles of res judicata prevented Rudolph Hamsa from relitigat-ing the issue by attempting to terminate the monthly installments established by consent agreement. Hamsa v. Hamsa, 919 So.2d at 779.

Unlike the terms of the consent agreement at issue in Hamsa v. Hamsa, supra, Paul Olsen did not agree to pay Lynn Olsen a lump sum award representing 17a valid compromise of all past, present, or future claims. Further, the consent agreement between Paul Olsen and Lynn Olsen contained no language stating that it was to constitute a compromise of all issues of alimony between the parties. Lastly, the judgment contained no language stating that Paul Olsen agreed to waive his right to have his spousal support obligation terminated pursuant to the provisions of LSA-C.C. art. 115. See Rosenfeld v. Ro-senfeld, supra at 1080-81. Under the circumstances presented herein, we find that the doctrine of res judicata is inapplicable; therefore, we find no error in the trial court’s denial of Lynn Olsen’s exception of res judicata.

On appeal, Lynn Olsen next argues that the trial court erred in terminating the monthly spousal support payments based on its erroneous finding that Lynn Olsen and Gary Gregory were living together in the manner of married persons.

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. On review, an appellate court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided differently. Bonin v. Fer-rellgas, Inc., 03-8024 (La.7/2/04), 877 So.2d 89, 94-95.

The trial court conducted a hearing on Paul Olsen’s motion to extinguish spousal support on July 26, 2011. At the hearing, Lynn Olsen testified that Gary Gregory began living with her after his release from jail in Georgia. She claimed that they had separate rooms, but admitted they had sexual intercourse or attempted sexual intercourse on occasion. Lynn Olsen further testified that Gary Gregory | ^received his mail at the house, that they ate together, that she helped him pay off some land that his family owned, and that she visited him in the hospital. She admitted that they discussed matrimony and that she told Paul Olsen and other people in the community that they were considering matrimony.

Gary Gregory also testified at the hearing. He stated that he has known Lynn Olsen since she was sixteen years old, that they corresponded while he was in jail, and that he moved in with her following his release from prison. He claimed that he had his own bedroom and bath at the house. While he admitted that they occasionally slept in the same bed, he denied that they had sexual intercourse, claiming it was impossible on his part. Further, the two ate and cooked together, he received his mail there, and he told the probation and parole department that this was his residence. Gary Gregory also admitted that they talked about marriage.

Paul Olsen testified that he knew Gary Gregory lived with Lynn Olsen, that she admitted they had sexual intercourse, that she took him to the hospital and checked on him, and that she then moved him back into her house.

Kenny Arcement testified that he has known the Olsens for a long time and that he rented Lynn Olsen some property in Gretna. She originally moved in there with a nephew, but then Gary Gregory moved in with her. Kenny Arcement had been to the house on several occasions and saw that they maintained separate bedrooms and bathrooms. He also claimed that Gary Gregory told him that he had no plans to marry Lynn Olsen.

After listening to this testimony, the trial court determined that “this is more than two (2) friends living together with benefits,” and that these parties were living together “in a manner of married persons.” Based on these findings, the trial court granted Paul Olsen’s motion to extinguish the spousal support pursuant to | ¡¡LSA-C.C. art. 115. That article provides that “the obligation of spousal support is extinguished upon the remarriage of the obligee, the death of either party, or a judicial determination that the obligee has cohabited with another person of either sex in the manner of married persons.”

In Arnold v. Arnold, 02-819 (La.App. 1 Cir. 4/2/03), 843 So.2d 1167, 1171, the appellate court found that the evidence was sufficient to support the trial court’s finding that the former wife “cohabited in the manner of married persons,” as required for the extinguishment of the obligation of spousal support. In Arnold, the wife testified that within one month of moving out of the marital domicile, her boyfriend moved into her apartment with her, and the two were still living together at the time of the hearing on the husband’s motion to terminate support. The former wife also testified that her boyfriend kept his personal belongings in the apartment, such as clothing, shaving cream, and razors. The boyfriend testified about their living arrangements, noting that he and the wife never hid the fact that they were living together. Based on these facts, the appellate court found no error in the trial court’s termination of spousal support pursuant to LSA-C.C. art. 115.

In contrast, in Almon v. Almon, 05-1848 (La.App. 1 Cir. 9/15/06), 943 So.2d 1113, the appellate court found that the record supported the trial court’s finding that the former wife and her male friend were not living together “in the manner of married persons,” as required so as to warrant a termination of the husband’s spousal support obligation. In her appellate brief, Lynn Olsen relies on this case to support her position that the evidence was not sufficient to show that she and Gary Gregory lived in the manner of married persons. We find the Almon case distinguishable from the facts herein.

In Almon, supra, a male friend, Mr. Perine, lived in Ms. Almon’s home when circumstances arose that he had nowhere else to stay. Ms. Almon testified |inthat she felt an obligation to her friend because he helped her by coming to feed her daughter, who suffered from anorexia. In exchange, Mr. Perine helped her financially and repaired things around the house. During the time in question, they did not share a bedroom; he slept downstairs and kept his belongings in the garage in a laundry basket. Ms. Almon also testified that she did not want or allow Mr. Perine to share her bedroom, and, in fact, kept an outside lock on her bedroom door to keep Mr. Perine out of her bedroom. While she admitted that they engaged in sexual relations on occasion at the beginning of his residency, she never committed to having any type of romantic relationship with him, and there was no affection between the two. Ms. Almon testified that she and Mr. Perine did not date, that they did not attend parties or social functions together as a couple, that she did not introduce or consider him her boyfriend, and that they never discussed marriage. Based on these facts, the appellate court affirmed the trial court’s finding that Ms. Almon and Mr. Perine were not cohabiting in the manner of married persons so as to warrant a termination of the husband’s spousal support obligation.

Unlike the facts in Almon, supra, Lynn Olsen and Gary Gregory were clearly living together in a relationship of some permanence. The two ate and cooked together, he received his mail at the house, and he told the probation and parole department that this was his residence. While they claimed to have separate rooms, they sometimes slept in the same bed and had sexual intercourse or attempted sexual intercourse. More importantly, they openly discussed marriage.

Having considered the record in its entirety, we find that the record supports the trial court’s determination that Lynn Olsen and Gary Gregory were cohabiting with one another “in the manner of married persons,” as required to extinguish Paul Olsen’s spousal support obligation. Accordingly, we find no error in the trial Incourt’s factual findings and determinations herein, which are amply supported by the record.

CONCLUSION

Based on the foregoing reasons, we affirm the trial court’s denial of Lynn Olsen’s exception of res judicata and the grant of Paul Olsen’s motion to extinguish spousal support.

AFFIRMED

      . On appeal, counsel for Paul Olsen argues that the denial of an exception of res judicata is an interlocutory judgment and thus not appealable. Although interlocutory judgments are generally not appealable, when an unrestricted appeal is taken from a final judgment, an appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him in addition to the review of the final judgment. Louisiana Local Government Environmental Facilities v. All Taxpayers, 11-0027 (La.App. 1 Cir. 2/2/11), 56 So.3d 1194, 1200, writ denied, 11-0467 (La.4/25/11), 62 So.3d 93; Territo v. Schwegmann Giant Supermarkets, Inc., 95-257 (La.App. 5 Cir. 9/26/95), 662 So.2d 44, 46, writ denied, 95-2584 (La. 12/15/95), 664 So.2d-445. We note that the first time Lynn Olsen appealed the denial of the exception of res judicata, there was not a final signed judgment before this Court for review. We now have a final signed judgment before this Court for appellate review. Therefore, the issue of whether the trial court erred in denying the exception of res judicata is properly before this Court.


source: Caselaw Access Project

author: ROBERT M. MURPHY, Judge.

license: Public Domain

text:
    Andres GARCIA v. HICO, INC., and Louisiana Home Builder’s Association, SIF Insurance Fund.
    No. 12-CA-748.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 18, 2013.

      Daren Sarphie, Attorney at Law, Me-tairie, LA, for Plaintiff/Appellant.
    Alan J. Yacoubian, Rochelle Champagne Fahrig, Attorney at Law, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   ROBERT M. MURPHY, Judge.

| ¿Claimant, Andres Garcia, appeals a judgment rendered by the Office of Workers’ Compensation, District 7, dismissing his claims against his employer, HICO, Inc., and Louisiana Home Builders, SIF for indemnity benefits, penalties and attorney’s fees. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 26, 2010, Andres Garcia fell from a ladder while painting sprinkler pipes within the course and scope of his employment with HICO, Inc. The ladder shifted when he was eight to twelve feet above the ground, causing him to fall onto his feet. Mr. Garcia was transported to the emergency room of West Jefferson Medical Center where he complained of pain in his left ankle and leg and left upper chest. In the emergency room, he saw Dr. Michael Volner who took x-rays, administered morphine and noted abrasions to Garcia’s right inner biceps and left chest wall. The x-rays revealed a left ankle fracture; the CT scan, however, |sshowed no acute injury and degenerative disc disease at C5-6 and C6-7.

Mr. Garcia testified that West Jefferson Medical Center referred him to Dr. Alexis Waguespack of the Bone and Joint Clinic for further treatment. Because Dr. Wag-uespaek no longer worked at the Bone and Joint Clinic, the clinic referred him to another physician at the clinic, Dr. Daniel J. Gallagher. According to the medical records introduced at trial, Mr. Garcia first treated with Dr. Gallagher on March 1, 2010, three days after the accident, complaining of pain in both shoulders, his lower back, and left ankle. Dr. Gallagher diagnosed Mr. Garcia with a left ankle fracture, as well as lumbar and shoulder sprains. During this visit, Dr. Gallagher opined that the lumbar and shoulder sprains should heal without permanent disability.

On March 5, 2010, Dr. Gallagher performed an open reduction and internal fixation of Mr. Garcia’s left ankle. On April 12, 2010, Dr. Gallagher evaluated Mr. Garcia following his surgery. He noted that Mr. Garcia’s ankle was healing well and released him to perform light duty work with minimal standing and walking. On April 26, 2010, Mr. Garcia’s counsel sent a letter to Barbara Gilchrist, the adjuster assigned to Mr. Garcia’s claim, requesting a consultation with a Spanish-speaking orthopedist, Dr. Luis Espinoza. Ms. Gilchrist testified that she did not initially authorize Mr. Garcia’s request to change his physician to Dr. Espinoza because Mr. Garcia had signed a Choice of Physician form on March 8, 2010, selecting Dr. Gallagher as his choice of physician.

Oh May 10, 2010, Dr. Gallagher evaluated Mr. Garcia and issued a report regarding his findings. He concluded that Mr. Garcia’s left ankle fracture had healed and he instructed Mr. Garcia to stop using a cane and to return to light duty work with no climbing ladders or lifting more than 30 pounds. During this visit, Dr. Gallagher noted that Mr. Garcia complained of pain in his left ankle, left knee, |4low back and both shoulders. He ordered an MRI of Mr. Garcia’s shoulders, back and knee and noted that Mr. Garcia would be released at his next visit, if no acute trauma or injury is found in the MRI of his shoulder, back and knee. On July 29, 2010, Dr. Gallagher issued a report confirming that the MRI revealed no acute injury to Mr. Garcia’s shoulders, back or knee. Dr. Gallagher noted degenerative and chronic abnormalities in the MRI results. He again stated that Mr. Garcia was capable of performing light duty work activities, but noted that Mr. Garcia had no restrictions regarding his shoulders, back or knee.

Ms. Gilchrist testified that she authorized an examination with Dr. Espinoza on October 29, 2010, “to move the case forward,” even though she considered Dr. Gallagher to be Mr. Garcia’s choice of physician. Dr. Espinoza examined Mr. Garcia’s left ankle on November 9, 2010, and prepared a report on that same day, indicating that Mr. Garcia could return to moderate duty work as a painter. Specifically, Dr. Espinoza concluded that the ankle fracture had healed, but offered a cortisone injection to assist with Mr. Garcia’s complaints of pain. He also recommended an EMG and nerve conduction study to rule out nerve damage. Dr. Espinoza’s report indicated that he did not perform these procedures because he ended the consultation after Mr. Garcia became agitated when he told him that he had only been approved by the workers’ compensation carrier to evaluate Mr. Garcia’s ankle. Mr. Garcia offered no expert medical testimony at trial to clarify this issue.

In or about February of 2011, HICO retained Elier Diaz of Vocational Solutions, Inc. to formulate for Mr. Garcia a light level modified utility worker position. On February 25, 2011, Mr. Garcia filed a disputed claim for compensation seeking recovery for penalties and attorney’s fees based on the employer’s alleged failure to timely authorize a complete medical evaluation by | ;;Dr. Espinoza. Mr. Garcia further sought indemnity benefits as a result of the subject work-related accident, penalties, attorney’s fees, costs and interest.

On March 14, 2011, Elier Diaz, the vocation rehabilitation counselor, conferred with Dr. Gallagher to review the possibility of Mr. Garcia returning to light duty as a modified utility worker with HICO. Dr. Gallagher opined that Mr. Garcia had reached the maximum medical improvement and could perform the proposed light duty job.

HICO offered Mr. Garcia a light level modified utility worker position on May 24, 2011. On May 30, 2011, Mr. Garcia returned to work at his pre-injury wage and HICO terminated his temporary total disability benefits. At trial, Mr. Garcia’s supervisor, Victor Azocar, testified that Mr. Garcia did not even try to dip his paintbrush in a paint can when he reported to work on May 30, 2011. During cross-examination, Mr. Garcia confirmed Mr. Azocar’s testimony, explaining that in his opinion he was unable to perform the modified work on May 30, 2011, as a baseboard or trim painter due to pain, and he also confirmed that he did not even try to pick up a paintbrush at that time.

Ms. Gilchrist subsequently authorized Mr. Garcia to see another orthopedic surgeon, Dr. Charles Haddad, Jr., on April 17, 2012. Dr. Haddad diagnosed lumbar disease at L4-5 and L5-1, left knee pain, left hip bursitis, left ankle DJD, left ankle post fracture, left foot plantar fasciitis, right shoulder fibrosis and dyskinesia, right shoulder impingement and right shoulder AC joint DJD. He restricted Mr. Garcia to sedentary work duty.

The matter was tried on May 14, 2012. On July 14, 2012, the workers’ compensation judge (“WCJ”) denied Mr. Garcia’s claim for indemnity benefits, penalties and attorney’s fees. The WCJ found that Dr. Gallagher was Mr. Garcia’s original choice of physician; that defendants were not unreasonable in delaying the 1 (¡authorization for Mr. Garcia to change his choice of physician; that defendants did not limit the scope of Dr. Espinoza’s examination; that Mr. Garcia was offered suitable alternative employment within his physical restrictions; and that he did not prove he was unable to perform the position he was offered.

In addition, the WCJ concluded that defendants properly terminated Mr. Garcia’s temporary total disability benefits on May 30, 2011, noting that two of Mr. Garcia’s treating physicians, Drs. Gallagher and Espinoza, released him to light/moderate duty work. The WCJ further concluded that Mr. Garcia did not prove by clear and convincing evidence that he is physically unable to engage in any type of employment or that he was physically unable to performed the offered employment. Mr. Garcia now appeals.

ASSIGNMENTS OF ERROR

On appeal, Mr. Garcia raises four assignments of error: (1) the WCJ erred in finding appellees did not unreasonably delay medical treatment; (2) the WCJ erred in finding that Mr. Garcia is not entitled to supplemental earnings benefits; (3) the WCJ erred in not awarding Mr. Garcia penalties, attorney’s fees and cost reimbursement; and (4) the WCJ court erred in not awarding Mr. Garcia interest on supplemental earnings benefits, penalties, attorney’s fees and cost reimbursement.

STANDARD OF REVIEW

The standard of review in workers’ compensation cases is “manifest error-clearly wrong” standard. Dean v. Southmark Const., 03-1051 (La.7/6/04); 879 So.2d 112, 118. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether or not the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Banks v. Indust. Roofing & Sheet Metal Works, 96-2840 (La.7/1/97), 696 So.2d 551, 556.

^DISCUSSION

In his first assignment of error, Mr. Garcia contends that his employer unreasonably delayed his medical treatment. In his third assignment of error, he contends that the WCJ erred in failing to award him penalties and attorney’s fees pursuant to La. R.S. 23:1201(F), as well as reimbursement costs under La. R.S. 23:1310.9. We will address assignments of error numbers one and three together.

A trial court’s factual findings will not be upset unless they are manifestly erroneous or clearly wrong. Foley v. Entergy Louisiana, Inc., 06-983 (La.11/29/06); 946 So.2d 144, 153 (citing Ferrell v. Fireman’s Fund Insurance Co., 94-1252 (La.2/20/95); 650 So.2d 742, 745). When the findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the findings of fact, for only the fact finder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Johnson v. Lee, 10-439 (La. App. 5 Cir. 11/23/10); 54 So.3d 704, 706.

The Louisiana Workers’ Compensation Act provides that if an employee is treating with any physician “to whom he is not specifically directed by the employer or insurer, that physician shall be regarded as his choice of treating physician.” La. R.S. § 23:1121(B)(2)(a); Snearl v. Kelly’s Indus. Serv., Inc., 06-0218 (La.3/17/06); 924 So.2d 138, 139. In its written reasons for judgment, the WCJ concluded that the testimony and documentary evidence presented at trial established that Dr. Gallagher was Mr. Garcia’s choice of physician/orthopedic surgeon. The court specifically noted that Mr. Garcia admitted that he was referred to Dr. Gallagher by the emergency room staff and not by defendants. Despite Mr. Garcia’s choice of Dr. Gallagher as his physician, the WCJ emphasized that defendants still authorized two additional choices of orthopedic surgeons, Dr. |sEspinoza and Dr. Haddad. The court noted that Mr. Garcia’s first request to see Dr. Espinoza came only days after Dr. Gallagher released Mr. Garcia for light duty work on April 12, 2010.

Dr. Espinoza issued a report on November 9, 2010, concluding that Mr. Garcia was capable of performing moderate duty work with respect to his ankle. Though Dr. Espinoza’s report indicated that he was only approved by the workers’ compensation carrier to evaluate Mr. Garcia’s ankle, Ms. Gilchrist testified that she “wholeheartedly” denied limiting Dr. Espinoza’s treatment of Mr. Garcia. Ms. Gilchrist testified that she authorized a subsequent visit with Dr. Espinoza, but was told by Dr. Espinoza’s office that he “did not do backs, and that he would not see that patient again.”

Notably, the WCJ emphasized that Mr. Garcia did not offer any medical testimony of Dr. Espinoza, or any of other physician, to clarify the issue regarding the scope of Dr. Espinoza’s examination. Because the WCJ found Ms. Gilchrist to be a credible witness at trial, “particularly on the choice of physician issue,” we find no manifest error in the workers’ compensation court’s finding that defendants did not unreasonably delay or limit Mr. .Garcia’s medical treatment. Further, the WCJ held that defendants’ initial denial of Mr. Garcia’s request to change physicians to Dr. Espinoza was not unreasonable because Mr. Garcia made this request only after he had been released to light duty work by his first choice of physician, Dr. Gallagher, on April 12, 2012. Accordingly, we find that Mr. Garcia’s first assignment of error lacks merit.

For the same reasons, the WCJ refused to award penalties or attorney’s fees for unreasonably delaying or limiting the authorization of medical treatment by Dr. Espinoza. In his third assignment of error, Mr. Garcia contends that the WCJ erred in failing to award him penalties and attorney’s fees under La. R.S. 23:1201(F) for ^defendants’ (1) unreasonable delay in authorizing medical treatment; (2) unreasonable discontinuation of indemnity benefits; and (3) failure to reinstate indemnity benefits.

“The determination of whether an employer or insurer should be cast with penalties and attorney’s fees in a workers’ compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of review.” Redler v. Giorlando’s Rest. Corp., 07-658 (La. App. 5 Cir. 2/6/08); 979 So.2d 512, 516, writ denied, 08-0863 (La.6/6/08); 983 So.2d 925. Louisiana Revised Statute 23:1201(F), relative to the assessment of statutory penalties and attorney’s fees, provides that “failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change of physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty....” Section (F)(2) of La. R.S. 23:1201 provides that the penalties and attorney’s fees provisions shall not apply if the claim is “reasonably controverted.” Authement v. Shappert Engineering, 02-1631 (La.2/25/03); 840 So.2d 1181, 1187. In other words, “[t]he crucial inquiry in determining whether to impose penalties and attorney’s fees on an employer is whether the employer had an articu-lable and objective reason to deny benefits at the time it took the action.” Redler, 979 So.2d at 516.

Because we have determined that the WCJ did not err in finding that defendants did not unreasonably delay or limit Mr. Garcia’s medical treatment, we find no manifest error in its refusal to award penalties and attorney’s fees under La. R.S. 23:1201(F) on -that issue. Similarly, we find no manifest error in the WCJ’s refusal to award penalties and attorneys fees under La. R.S. 23:1201(F) for defendants’ termination of and failure to reinstate Mr. Garcia’s temporary total disability benefits. We note that Mr. Garcia’s first two choices of physicians |inreleased him to return to light or moderate duty work. Mr. Garcia returned to work on May 30, 2011 in a modified utility worker position at full pay. The defendants terminated his temporary total disability benefits on that date. Based on this evidence, and because Mr. Garcia did not offer medical evidence supporting his refusal to work, we find no manifest error in the WCJ’s determination that defendants properly terminated his benefits on May 30, 2011.

Mr. Garcia also contends that the WCJ erred in failing to award him reimbursement of costs under La. R.S. 28:1310.9. Louisiana Revised Statute 23:1310.9 provides that if the workers’ compensation judge before which any proceedings for compensation ... have been brought, under the Workers’ Compensation Act, determines ... that the denial of benefits has not been based on a reasonable ground, the workers’ compensation judge shall assess the total cost to the unreasonable party.” Because two of Mr. Garcia’s treating doctors released him for light work duty, we find that defendants had a reasonable basis for denying benefits. After reviewing the record in its entirety, we find no manifest error in the WCJ’s failure to award penalties and attorney’s fees under La. 23:1201(F) and its failure to award reimbursement of costs under La. 23:1310.9.

In his second assignment of error, Mr. Garcia contends he is entitled to supplemental earnings benefits. Under Louisiana Revised Statute 23:1221(3)(a), the injured employee has the initial burden of proving by a preponderance of the evidence that the work-related injury rendered the injured employee unable to earn 90% of the injured employee’s pre-injury wages. Poissenot v. St. Bernard, Parish Sheriff’s Office, 09-2793 (La.1/9/11); 56 So.3d 170, 174; La. R.S. 23:1221(3)(a)(i). Once the employee establishes a prima facie case, the burden shifts to the employer who must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was goffered to the employee, or that the job was available in his or the employer’s geographic region. Banks, 696 So.2d at 556. “Actual job placement is not required.” Id. The burden then shifts back to the injured employee to prove by clear and convincing evidence, unaided by any presumption of disability, that he is unable to perform the employment offered or available solely due to substantial pain. Battle v. Pilgrim’s Pride Corp., 41,056 (La. App. 2 Cir. 6/28/06); 935 So.2d 336, 341, writ denied, 06-1904 (La.10/27/06); 939 So.2d 1288; La. R.S. 23:1221(3)(c)(ii).

The WCJ found that both Mr. Garcia and defendants met their initial burdens, proving that Mr. Garcia was unable to earn 90% of his pre-injury wages and that defendants offered him a job within his physical restrictions, respectively. At this point, the burden shifted to Mr. Garcia to prove by clear and convincing evidence that he could not perform the job offered to him due to substantial pain. Although Mr. Garcia testified that he could not work on May 30, 2011 due to pain, the WCJ found Mr. Garcia’s testimony to be “self-serving at best.” The WCJ made a credibility determination that at trial Mr. Garcia was able to put his hand above his head while testifying without discomfort when he had testified that he could not dip his paintbrush in a paint can. The WCJ also found credible Mr. Azocar’s testimony that Mr. Garcia stated that he preferred to stay home and make less money than perform his job in a light-duty capacity.

We find that the WCJ’s factual findings and credibility determinations regarding Mr. Garcia’s claim for supplemental earnings are not manifestly erroneous. Based upon our review of the evidence, we find that Mr. Garcia did not prove by clear and convincing evidence that he is entitled to supplemental earnings benefits. Accordingly, we find that Mr. Garcia’s second assignment of error is without merit.

|iaIn his fourth assignment of error, Mr. Garcia contends that the WCJ erred in not awarding him interest on supplemental earnings benefits, penalties, attorney’s fees and cost reimbursement. Because we have found that Mr. Garcia is not entitled to supplemental earnings benefits, penalties, attorney's fees or reimbursement costs, Mr. Garcia’s request for an award of interest on those amounts is moot.

In addition, Mr. Garcia contends- he is entitled to a separate award for attorney’s fees for the expenses incurred in bringing the instant appeal, in the event that this Court reverses the judgment of the workers’ compensation court. We affirm the judgment of the workers’ compensation court, therefore an award for penalties, attorney’s fees and costs is now moot.

CONCLUSION

After considering the entire record, we find the WCJ’s findings were reasonable and not clearly wrong. Accordingly, for the reasons stated herein, the judgment granted in favor of HICO, Inc. and Louisiana Homebuilders SIF, and against Andres Garcia is affirmed.

AFFIRMED


author:
ROBERT M. MURPHY, Judge.
      WICKER, J.,

text:
    STATE of Louisiana v. Jose Cesar MENDOZA.
    No. 12-KA-589.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Brandon Kinnet, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellant.
    Joseph A. Marino, Jr., Attorney at Law, Gretna, LA, for Defendarit/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and ROBERT M. MURPHY.
   ROBERT M. MURPHY, Judge.

|2The State of Louisiana appeals the granting of a motion to quash in favor of defendant, Jose Cesar Mendoza, for two prior DWI convictions in the 24th Judicial District Court, Division “C.”

FACTS AND PROCEDURAL HISTORY

On May 4, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jose Cesar Mendoza, with driving while intoxicated (DWI), fifth offense, in violation of La. R.S. 14:98. The bill of information alleged that on November 23, 2010, defendant willfully and unlawfully operated a motor vehicle while intoxicated after having been previously convicted of violating La. R.S. 14:98 on four previous occasions.

Thereafter, on October 4, 2011, defendant filed a “Motion to Quash” the bill of information, asserting that two of his predicate convictions, the 1997 and 1999 convictions, were obtained in violation of his constitutional rights. On January | ⅞12, 2012, defendant filed a memorandum in support of his motion, arguing that the 1997 and 1999 convictions used to charge him as a DWI fifth offender had been previously quashed by Judge Robert A. Pitre, Jr. on July 31, 2001, under case number 01-1468, rendering the doctrine of res judicata applicable to the instant matter.

On February 13, 2012, a hearing was held on the motion to quash and the trial court granted the motion. After the hearing, the State orally moved for an appeal, which was granted on March 29, 2012. The State’s appeal follows.

DISCUSSION

The State argues that the trial court erred in granting defendant’s Motion to Quash, declaring invalid two of the predicate DWI convictions alleged in the bill of information. First, the State submits that the trial court improperly applied the principle of res judicata to this case when it relied on Judge Pitre’s 2001 ruling. The State contends that the trial court erred because the principle of res judicata does not apply to sentence enhancement proceedings. The State further maintains that defendant did not meet his burden of proving an infringement of his rights or a procedural irregularity in the taking of his pleas. Finally, the State asserts that the evidence submitted by the State proves that the predicate pleas were constitutionally obtained.

The defense responds that the trial court properly applied the doctrine of res judicata; alternatively, that when the trial court referenced Judge Pitre’s 2001 rulings, she had independently reviewed the evidence introduced at the earlier hearing and based on that review granted the motion to quash. In his 2011 Motion to Quash, defendant challenged the two predicate DWI guilty pleas on two bases: first that they were obtained without-a lawful, knowing, and intelligent waiver of his rights; and second that in 2001 Judge Pitre granted a motion to quash. In his ^memorandum in support of his motion, defendant argued that these two predicate convictions should be quashed because in 2001, Judge Pitre had previously granted a motion to quash the same two predicate pleas in case number 01-1468, Division “G,” of the 24th Judicial District Court, Parish of Jefferson. Accordingly, defendant argued that the principle of res judi-cata applied.

The first plea was obtained on November 5, 1997, in the 22nd Judicial District Court, Parish of St. Tammany, case number 278468, Division “C.” The second plea was obtained on May 10, 1999, in First Parish Court, Parish of Jefferson, case number F1229145, Division “B.”

Motion to Quash Hearing

At the hearing on defendant’s Motion to Quash, the State introduced five exhibits into evidence. With respect to the 1997 conviction, the exhibits included: the minute entry, bill of information, and transcript from case number 278468. With respect to the 1999 conviction, the exhibits included: the bill of information, minute entry, waiver of rights form, commitment, fingerprints, and transcript from case number F1229145.

The State also introduced Judge Pitre’s 2001 judgment granting defendant’s motion to quash the bill of information based upon the same 1997 and 1999 convictions and defendant’s 2001 memorandum in support of that motion to quash.

Res Judicata

The State submits that the trial court erred in relying on Judge Pitre’s ruling because the principle of res judicata does not apply to sentence enhancement proceedings. The State in effect argues that the trial court must rely on all the evidence- available at the time of the requested enhancement to test the prior pleas.

We agree that the trial judge was not bound by Judge Pitre’s judgment in case number 01-1468 when considering defendant’s Motion'to‘Quash.

In State v. Duplechin, 05-726 (La. App. 5 Cir. 1/31/06), 922 So.2d 655, writ denied, 2006-0475 (La.9/22/06), 937 So.2d 378, this court held that the doctrine of res judicata does not apply to estop the state from using a previously invalidated predicate DWI conviction in a subsequent DWI case. In Duplechin, the defendant' was charged with third offense DWI after a judge had previously declared o.ne of the predicate offenses constitutionally invalid. The trial judge applied res judicata .to exclude the previously quashed predicate offense from use in the current enhancement effort. This Court then reversed, holding that prior DWI convictions do not form any part of the act for which the defendant is being prosecuted. Rather, “the accused is being prosecuted, and may be tried, convicted, and punished, not for the previous offenses, but for the last offense, although the punishment for this last offense is enhanced because of previous convictions.” Id. at 658. The Duple-chin holding applies to the instant facts; res judicata does not apply to exclude previously quashed predicate offenses.

We find, however, that in her ruling that the trial judge did not solely rely upon the principle of res judicata. Rather, she also considered the State’s exhibits in rendering an independent ruling based upon the evidence presented on the motion before her.

The pertinent inquiry shifts to whether the trial court erred in declaring two of defendant’s predicate DWI convictions constitutionally invalid.

Constitutionality of Defendant’s Predicate Pleas

A motion to quash is the proper vehicle to attack the constitutionality of prior convictions used to enhance a DWI charge. State v. Moten, 99-552, p. 2 (La. App. 5 Cir. 11/30/99), 748 So.2d 1210, 1211. The granting of a defendant’s motion to quash the bill of information is a discretionary ruling by the trial court and, absent abuse, the ruling should not be disturbed by the appellate court. State v. | aPayton, 06-1202, pp. 3-4 (La.App. 4 Cir. 2/28/07), 954 So.2d 193, 195 (citing State v. Love, 00-3347, p. 14 (La.5/23/03), 847 So.2d 1198,1208).

A presumption of regularity attaches to prior convictions in multiple offender DWI cases and the burden is on the defendant to show the prior guilty plea is constitutionally deficient. State v. Collins, 04-255, p. 5 (La.App. 5 Cir. 10/12/04), 886 So.2d 1149, 1153, unit denied, 04-2798 (La.3/11/05), 896 So.2d 62. In State v. Balsano, 09-0735, p. 8 (La.6/19/09), 11 So.3d 475, 479 (per curiam), the Louisiana Supreme Court recognized that it has consistently allowed defendants to attack collaterally the validity of guilty pleas used to enhance their sentences, whether in habitual offender proceedings, State v. Shelton, 621 So.2d 769 (La.1993), or in habitual offender DWI prosecutions. R.S. 15:529.1; State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556.' This line of jurisprudence sets forth the respective burdens of proof when a defendant challenges the use of a predicate conviction for enhancement under the recidivist habitual offender and driving while intoxicated statutes.

The Louisiana Supreme Court’s decision in Carlos applied Shelton’s burden shifting rule to the recidivist provisions of the DWI statute. Carlos established a three-step process for determining the validity of prior DWI guilty pleas for use in enhanced DWI proceedings. The State has the initial burden of proving the existence of the prior guilty pleas and that the defendant was represented by counsel when the pleas were taken. Id. (citing Carlos, 98-1366 at 6, 738 So.2d 559). If the State meets this initial burden, “the defendant must produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.” Id. (quoting Carlos, 98-1366 at 6-7, 738 So.2d at 559). If the defendant makes the required showing, the burden reverts to the State to produce a “perfect” Boykin transcript, ie., one “which reflects a voluntary, informed, and articulated waiver of the three specific rights mentioned 17in Boykin.” Id. (quoting Carlos, 98-1366 at 7, 738 So.2d at 559 n. 4 and Shelton, 621 So.2d at 775 n. 12). Anything less than a perfect transcript, “such as a guilty plea form or minute entry, will require the trial judge to weigh evidence submitted by both sides and determine whether the defendant’s Boykin rights were prejudiced.” Id. (quoting Carlos, 98-1366 at 7, 738 So.2d at 559).

In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court emphasized three federal constitutional rights that are waived by a guilty plea; the privilege against self-incrimination, the right to a trial by jury, and the right to confront accusers. Because a plea of guilty waives these fundamental rights of an accused, due process requires that the plea be a voluntary and intelligent waiver of known rights in order to be valid. Id. The record of the plea must show, that the defendant was informed of these three basic rights and then knowingly and voluntarily waived them. State v. Galliano, 396 So.2d 1288, 1290 (La.1981). Under Boykin, the decision to plead guilty will not be considered voluntary unless, at the very least, the defendant has been advised of his privilege against self-incrimination, and his rights to a trial by jury and confrontation. State v. Payton, 04-1024, p. 4 (La.App. 5 Cir. 1/11/05), 894 So.2d 362, 365. The record must also show the defendant freely and voluntarily waived those rights. Id.

In Balsano, the court explained that Carlos spoke more broadly about prejudice to Boykin rights because prior DWI convictions used to enhance sentence in many cases, if not most, are misdemeanors offenses as to which the defendant does not have the right to a jury trial, thereby shrinking the three-right rule to two rights. Id., 09-0735 at 9, 11 So.3d at 479-80.

Additionally, whenever a misdemeanor guilty plea is to be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony, it is incumbent upon the trial judge to inform the defendant that by pleading guilty he waived these the privilege against |sself-incrimination and right to confront accusers. State v. Vu, 02-1243, p. 6 (La.App. 5 Cir. 4/8/03), 846 So.2d 67, 71. The trial judge must also ascertain that the accused understands what the plea connotes and its consequences. “While it is preferable for the trial judge to conduct a colloquy to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support' the plea.” Id.

In this case, the State bore its initial burden by introducing the five exhibits discussed above. With respect to the 1997 conviction, the State introduced a certified copy of the minute entry and transcript reflecting a guilty plea and that defendant was represented by counsel, Mr. James E. Talley. Regarding the 1999 conviction, the State introduced a certified copy of the minute entry, commitment, transcript, and waiver of rights form indicating a guilty plea and that defendant was represented by counsel, Mr. Arturo S. Vallejo. Consequently, the burden of production shifted to defendant to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the predicate pleas. Carlos, supra at 559.

Defendant sought to meet this burden by arguing that the predicate pleas were obtained without a lawful, knowing, and intelligent waiver of his rights. Defendant also argued that his predicate convictions had fatal defects associated with the pleas. In particular, defendant cited the reasons set forth by Judge Pitre in his 2001 reasons for judgment.

Basically, defendant suggests that defendant’s predicate pleas were obtained without a lawful, knowing, and intelligent waiver of rights by the defendant, whose understanding of the English language was supposedly limited. Defendant further argues that he was not informed of the consequences of entering a guilty plea, namely, enhancement penalties and the possibility of deportation.

|flIn his reasons for judgment, Judge Pitre found defendant’s 1997 and 1999 guilty pleas to be constitutionally infirm for various reasons. First, Judge Pitre noted that defendant was born in Nicaragua and spoke very little English. At the time of defendant’s 1997 plea, defendant was represented by a public defender who did not speak Spanish; thus, the public defender relied on defendant’s daughter to interpret for him. Judge Pi-tre concluded that defendant’s daughter’s English was not any better than defendant’s. Additionally, at the time of the plea, 17 defendants were Boykinized at the same time. Accordingly, Judge Pitre held that neither defendant nor his daughter understood the rights that were explained by the court. With respect to defendant’s 1999 plea, Judge Pitre indicated that defendant was represented by a Spanish-speaking attorney; however, he ruled that the record was not clear as to whether his attorney advised defendant of his rights at the time of the guilty plea colloquy and waiver of rights form. Judge Pitre further noted that the defendant testified, through an interpreter, at the- motion to quash hearing, that he pled guilty because “he was advised to by his attorney who did not have much experience with DWI’s,” and that he was never advised about “enhancements or the possibility of being deported.”

In granting defendant’s Motion to Quash, the trial court ruled in this case as follows:

Let the record reflect that Jose — in case 01-1468, was set before Judge Pitre on July 31, 2001, wherein the defendant filed a motion to quash predicate pleas to DWI before said judge — before Judge Pitre. I’m sorry.
It appears at that hearing that testimony was taken regarding Mr. Mendoza’s plea to DWI in the Twenty-Second Judicial District Court in St. Tammany Parish on November 5th, 1997 and his guilty IwPlea in First Parish Court in Jefferson Parish to DWI second offense on May 10th, 1999.
At that hearing Mr. Mendoza testified through an interpreter that he pled guilty because he was advised by his attorney who did not have much experience with DWI’s. Mr. Mendoza also testified at that hearing that he was never advised about enhancements or the possibility of being deported.
Therefore, without anything further from the State, and considering anything further from the State other than the State’s Exhibits 1 through 5, and considering the motion with memorandum in support filed by the defendant, the Court is going to grant the motion to quash Mr. Mendoza’s pleas on May 10th, 1999, and November 5th, 1997.

First, in support of her ruling that the 1997 and 1999 pleas were invalid, the trial judge noted that defendant testified before Judge Pitre that he pled guilty because he was advised by an attorney who “did not have much experience with DWI’s.” We find this alleged deficiency is not a constitutional violation that would render defendant’s predicate pleas unconstitutional for purposes of enhancement. As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the trial court. La.C.Cr.P. art. 930. Moreover, the record lacks the evidence to substantiate such a claim. On the record before the appellate court, the defendant has failed to show that (1) counsel’s performance was deficient and (2) that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Suggs, 11-64 (La.App. 5 Cir. 12/13/11), 81 So.3d 815, 825-26. Additionally, the transcripts from both predicate pleas indicate that defendant was not threatened, coerced, or intimated into entering the guilty pleas.

Second, the trial court reasoned that the predicate pleas were invalid because defendant was not advised of the enhancement possibilities surrounding his guilty pleas. At the time the predicate offenses were committed, La.C.Cr.P. art. 556.1 provided in pertinent part:

InA. In any criminal case, the court shall not accept a plea of guilty or nolo contendere, without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
E. In any case where a subsequent offense carries an enhanced penalty, the court shall inform the defendant of the penalties for subsequent offenses.

The Louisiana Supreme Court, interpreting this article, found that advice regarding penalties for subsequent offenses is not required to be given before a guilty plea is taken, reasoning as follows:

Unlike requirements (l)-(4) contained in La.C.Cr.P. art. 556.1(A) which the judge is directed to give prior to accepting a guilty plea, section (E) simply states that “[i]n any case where a subsequent offense carries an enhanced penalty, the court shall inform the defendant of the penalties for subsequent offenses.” Therefore, advice regarding the penalties for subsequent offenses is not even required to be given before the plea is taken. Thus ..., under the plain language of La.C.Cr.P. art. 556.1, clearly the failure of a trial judge to advise the defendant of the penalties for subsequent offenses under La.C.Cr.P. art. 556.1(E) is not reversible error.

State v. Guzman, 99-1753, pp. 8-9 (La.5/16/00), 769 So.2d 1158, 1163.

In any event, the transcript and minute entry of the 1997 predicate plea from the 22nd Judicial District Court reflects that the trial judge fulfilled this statutory requirement. During the proceeding, the trial judge made the following statements and inquiries pursuant to a group guilty plea colloquy in which defendant participated:

Q: ... One aspect of a plea of guilty in this case is, on you who are charged with D.W.I., a consequence of this plea is if you are charged, convicted or plead guilty to another offense of operating a motor vehicle while intoxicated, anytime within the next ten years, then you could be sentenced to a greater fine and a greater imprisonment. On a |12second offense, you heard me read to Mr. Filby what a second offense entitled. Did you each hear that?
A: [Nod heads affirmatively]
Q: As to a third conviction, it’s a felony and you can get up to five years at hard labor and fine of up to $2,000.00 or both. On a fourth conviction it is a major felony and involves a sentence of between ten years and 30 years and a fine of not more than $5,000.00 or both. So do you understand that as a consequence of this plea if you should mess up and do it again, you could have a greater penalty, a more harsh penalty? Do you understand that?
A: [All defendants indicate affirmatively]
Q: Does anybody not understand that?
A: [No response]

Regarding defendant’s 1999 predicate plea from First Parish Court, the transcript from the proceeding indicates that the trial judge advised defendant of the following:

THE COURT: You also understand that if you are convicted with another DWI within the next ten years, that it would be considered a felony. And he would have to serve from one to five years at hard labor. As him if he knows what hard labor is? Tell him it is Angola State Penitentiary.
THE WITNESS: Yes.
THE COURT: Knowing all of this he still wishes to enter the plea of guilty?
THE WITNESS: Yes.

Also, the waiver of rights form from this plea, which was signed by the trial judge, defendant, and his attorney, contains the following language: “I fully understand that this conviction may be used against me in the future to enhance or increase the sentence or penalties I will receive for any subsequent conviction of the crime of DRIVING WHILE INTOXICATED.” In view of the foregoing, we find that defendant was in fact advised of the enhancement penalties prior to the entering of both guilty pleas.

11sThird, in support of her ruling, the trial judge also reasoned that defendant had not been advised of the possibility of deportation. The State asserts that failing to advise a defendant of the possibility of deportation is not a valid reason for attacking a predicate plea in a DWI proceeding. We agree.

Importantly, we note that defendant’s prior misdemeanor convictions seemingly did not subject him to deportation under 8 U.S.C.A. § 1227(a)(2)(A), because the crimes for which defendant was convicted do not carry a sentence of one year or longer. Defendant, it would seem, is therefore not in jeopardy of being deported for his prior convictions.

Further, in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), after reviewing a state post-conviction proceeding the United States Supreme Court held that defense counsel engaged in deficient performance by failing to advise defendant that his plea of guilty made him subject to automatic deportation. The Padilla Court held that a criminal defense attorney is obligated to affirmatively and accurately advise a non-citizen client about the deportation consequences of a plea “when the deportation consequences are truly clear.” Id. at 1483.

In State v. Rosales, 11-674, p. 18 (La. App. 5 Cir. 4/24/12), 94 So.3d 36, 47-48, this Court was presented with the argument that the defendant was not advised of the possible immigration consequences of his guilty plea, rendering his plea invalid. This Court found that the defendant was attempting to make arguments regarding his predicate proceedings that should have been raised as a post-conviction relief claim, directly in those predicate cases. Id., 11-674 at p. 19, 94 So.3d at 48. This Court further reasoned that defendant should have raised an ineffective assistance of counsel claim in the predicate in which he was represented. Id. This Court also noted that the prescriptive periods for doing so 114with the predicate convictions had expired, and none of the exceptions to prescription under La.C.Cr.P. art. 930.8 were applicable. Id.

In the instant matter, assuming arguen-do that defendant should have been advised of the possibility of deportation, as in Rosales, it appears that defendant should have raised an ineffective assistance of counsel claim in the predicates, and that the prescriptive periods for doing so have lapsed. Accordingly, we find defendant cannot meet his burden of proving an infringement of his rights or a procedural irregularity from this alleged deficiency.

Finally, it appears that the trial court in this case found the predicate pleas invalid based on defendant’s inability to understand his rights and the consequences of waiving them. Each predicate plea will be addressed in turn.

1997 Guilty Plea

On November 5, 1997, in the 22nd Judicial District Court, Parish of St. Tammany, case number 278468, Division “C,” defendant entered a guilty plea to DWI. Defendant was represented by counsel and defendant’s daughter, Marjorie Mendoza, was sworn in as the interpreter during the guilty plea colloquy.

The 1997 guilty plea transcript indicates that after speaking with defendant in English, the trial judge found that an interpreter would only be necessary when defendant did not understand the questions:

EXAMINATION BY THE COURT:
Q: Please state your full name and your date of birth?
A: Jose Mendoza, Jose Cesar Mendoza, Jose Cesar Mendoza, November 29, '49.
Q: What is your educational [sic]?
A: I finished high school in my country.
THE INTERPRETER:
In my country, Nicaragua.
THE COURT:
1,5I think he does pretty well with English.
DEFENSE ATTORNEY:
Your Honor, once he knows what you are asking him he can answer simply, but I think the translator.
THE INTERPRETER:
He can read a lot in English. He can write, too.
EXAMINATION BY THE COURT:
Q: I tell you what, what we will do is when you don’t understand something, I will use your interpreter. If you do understand it, go on ahead and answer it.
A: Okay, sir.
Q: You can read and write the English language?
A: No, no. A little bit, but I talk sometimes really—
Q: Okay. But you understand what is going on today?
A: [No response]
Q: You understand—
A: Yeah. Now I understand.
Q: Okay. And you are not under the influence of alcohol or any drug at this time?
A: No, sir.

The plea colloquy then proceeded as follows:

Q: Now, you are all waiving or giving up certain rights by pleading guilty. I am going to go over those with you. First of all, does he [the defendant] understand what I went over, the statute? Did you understand that?
THE INTERPRETER:
Yeah. About the thing — he can go through all that if he do that and all this stuff? He understands the payments and all that stuff.
Q: He understands the statutes and the penalties?
A: He understands the penalties, yes.
Q: I was addressing that to Mr. Mendoza.
[1f;Q: ... By pleading guilty there will
be no trial. You are giving up or waiving [the right to plead not guilty and the right to go to trial]. Do you understand those rights?
A: [All defendants indicate affirmatively]
Q: Does anybody not understand those rights?
A: [No response]
Q: Do you waive those rights?
A: [All defendants indicate affirmatively]
Q: Anybody not waive those rights?
A: [No response]
Q: Do you understand that you have a right to a trial and witnesses would be called and you would have a right to a trial? The State would have to prove its case beyond a reasonable doubt. Do you understand that?
DEFENDANT: Okay.
THE INTERPRETER:
Yeah. He understands the rights he has and he can come back, you know, to tell about what happened and all this stuff.
Q: But he is waiving that by doing that. He understands that?
THE INTERPRETER:
Yeah.
Q: ... Do you understand that right of confrontation or cross-examination? A: [All defendants indicate affirmatively]
Q: Does anybody not understand that right?
A: [No response]
Q: ... However, by pleading guilty you are giving up or you are waiving [the right to compulsory process]. Do you understand that right?
A: [All defendants indicate affirmatively]
Q: Does anybody not understand that right?
A: [No response]
Q: Do you waive that right?
|17A: [No response]
Q: I need you all to answer.
A: [All defendants indicate affirmatively]
Q: Does anybody not waive that right? A: [No response]
Q: Does he [the defendant] understand that? Do you understand that, Mr. Mendoza?
A: Yes, sir.
Q: You waive that right?
A: [Nods head affirmatively]
Q: ... Do you understand this right against self-incrimination?
A: [All defendants indicate affirmatively]
Q: Do you waive that right?
A: [All defendants indicate affirmatively]
Q: Does anybody not understand that right or not waive it?
A: [No response]
Q: Do you understand that right, Mr. Mendoza?
A: [Nods head affirmatively] Yes, I understand.
Q: Do you waive it?
A: Yes.
. Q: ... By pleading guilty you are waiving or giving up [the right to an appeal and the right to an attorney]. Do you understand these rights?
A: [All defendants indicate affirmative-
■ ly]
hsQ: Does anybody not understand those rights?
A: [No response]
Q: Do you waive that right?
A: [All defendants indicate affirmatively]
Q: Does anybody not waive that right? A: [No response]
Q: Mr. Mendoza, do you understand those rights?
A: Yes, I understand.
Q: Do you waive those rights?
A: Yeah. [Nods head affirmatively]

The trial judge went on to explain the enhanced penalties for a subsequent DWI conviction, and confirmed defendant’s understanding of the possible consequences. The trial judge asked defendant if anyone had made any promises or inducements, threatened, coerced, or intimidated him to plead guilty. Defendant indicated negatively. The trial judge concluded defendant’s plea was offered freely and voluntarily with an understanding of his rights, the statutes involved, the penalties involved, and the consequences of the plea of guilty.

The transcript indicates that neither the defendant, his attorney nor his interpreter ever interrupted the trial court during the advisal of his Boykin rights to inform the court that he did not understand the questions asked. Additionally, the trial court took the time to address the defendant individually to ensure his understanding of the proceedings; and defendant’s answers were responsive to the questions. We find that the trial judge conducting the colloquy in 1997 was in the best position to ascertain defendant’s ability to understand English, his rights, and the consequences of pleading guilty. In view of the foregoing, we see no reason to disturb that judge’s findings. We find that the trial court judge abused her discretion when she found that the defendant’s inability to understand the English language rendered the defendant unable to knowingly and intelligently plead guilty under the circumstances of that plea.

I,s1999 Guilty Plea

With respect to defendant’s second predicate conviction, defendant entered a guilty plea to DWI, second offense, on May 10, 1999, in the First Parish Court for the Parish of Jefferson, case number F1229145. Defendant was represented by Spanish-speaking counsel Mr. Arturo S. Vallejo, and the minute entry indicates that Felix Reyes acted as the Spanish interpreter during the guilty plea colloquy. The colloquy proceeded as follows:

THE COURT:
Mr. Mendoza, it is my understanding that you now wish to enter a plea of guilty to the charge of driving while intoxicated 2nd offense; is that correct? THE WITNESS:
Yes.
THE COURT:
You understand that you do have a right to go to trial, and if you are convicted a right to appeal my decision? THE WITNESS:
Yes.
THE COURT:
You also have a right to face and cross-examine those people who have accused you of this crime?
THE WITNESS:
Yes, sir.
THE COURT:
You also have a privilege against self-incrimination and no one can force you to take the stand and testify against yourself?
THE WITNESS:
Yes.
THE COURT:
You also understand that no one can force you to enter this plea?
THE WITNESS:
Yes, sir.
THE COURT:
Has anyone forced you to enter this plea?
hnTHE WITNESS:
No.
THE COURT:
You’re pleading guilty because you were in fact driving while intoxicated on November 29,1998?
THE INTERPRETER:
He said, he drunk beer, but the policeman said, he wasn’t drunk.
THE COURT:
Okay. Does he admit that he was driving while intoxicated on November 29,1998?
THE WITNESS:
Yes.
THE COURT:
Does he also understand that he has a right to compel the attendance of witnesses to testify in his behalf?
THE WITNESS:
Yes.
THE COURT:
You also understand that if you are charged and convicted with another DWI within the next ten years, that it would be considered a felony. And he would have to serve from one to five years at hard labor. Ask him if he knows what hard labor is? Tell him it is Angola State Penitentiary.
THE WITNESS:
Yes.
THE COURT:
Knowing all of this he still wishes to enter the plea of guilty?
THE WITNESS:
Yes.

Based on this colloquy, the trial judge found defendant’s plea was knowing, intelligent, free, and voluntary. Defendant’s answers were responsive to the questions asked and neither he, his Spanish-speaking attorney, nor his Spanish interpreter interrupted the judge for clarification or to indicate any misunderstanding. The State also produced a Waiver of Constitutional Rights form, signed by defendant, which reflected that defendant had been advised of his frights and that he knowingly and voluntarily waived them. Furthermore, because defendant had previously pled guilty to DWI, we find that he was familiar with such legal proceedings, and thus possessed an understanding in the instant matter. See State v. Green, 94-0887, p. 15 (La.05/22/95), 655 So.2d 272, 283 (finding that the trial court was justified in relying upon the defendant’s familiarity with the criminal justice system because it tended to show that the custodial interrogation was not an experience foreign to Green, and that prior Boykinizations indicated a repeated exposure to Miranda rights and were relevant); Rosales, supra (finding the defendant’s waiver of counsel valid where defendant pleaded to an uncomplicated DWI misdemeanor offense despite a lack of inquiry into the defendant’s education, mental condition or understanding of his waiver of counsel); and State v. Strain, 585 So.2d 540, 544 (La.1991) (finding crimes of driving while intoxicated are non-complex crimes, and are almost self-explanatory, thus requiring less judicial inquiry to determine if defendant understood his waiver of counsel in the case of a guilty plea).

We find that this trial court abused her discretion when she found that the 1999 predicate conviction was not constitutionally obtained.

Under a totality of the circumstances, and after reviewing the transcripts from both predicate convictions, we find that defendant did not meet his burden of proving an infringement of his rights or irregularity in the taking of his pleas. The State has demonstrated a lawful, knowing, and intelligent waiver of defendant’s rights. As such, we find the trial court erred by granting defendant’s motion to quash. Accordingly, the trial court’s granting of the motion to quash is reversed.

ERRORS PATENT REVIEW

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

| ^CONCLUSION

For the reasons assigned herein, the judgment of the trial court granting defendant’s motion to quash is hereby reversed. The case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED

WICKER, J., dissents with reasons.

WICKER, J.,

dissents with reasons.

_|jl agree with the majority’s finding that the trial court did not rely on the res judicata doctrine in determining whether to quash the bill of information filed against defendant, Mr. Mendoza. I respectfully dissent however because I disagree both with the majority’s interpretation and application of the Carlos burden shifting framework, and with the majority’s finding that the evidence was sufficient to find that Mr. Mendoza’s 1997 and 1999 predicate pleas were knowingly and intelligently made and therefore constitutional. I would affirm the judgment of the trial court quashing the 1997 and 1999 predicate convictions.

Addressing first the correct interpretation and application of State v. Carlos, 98-1866 (La.7/7/99), 738 So.2d 556, in enhanced DWI proceedings, Louisiana courts use the three-step Carlos burden shifting framework to determine the validity of prior DWI guilty pleas. I agree with the majority that the State met its initial burden of proving the existence of prior guilty pleas where defendant was represented by counsel. With this initial burden met, the Carlos framework shifts the burden to the defendant to “produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.” Carlos at 559 (emphasis added). |2Here, the majority failed to answer the proper question: did Mr. Mendoza meet his burden of production?

The majority finds, “defendant cannot meet his burden of proving an infringement of his rights or a procedural irregularity from this alleged deficiency.” (emphasis added). The majority then concludes that, “[ujnder a totality of the circumstances ... we find that defendant did not meet his burden of proving an infringement of his rights or irregularity in taking of his pleas.” (emphasis added). With these findings, the majority concluded that Mr. Mendoza did not meet a burden of persuasion.

A burden of proof includes both the burden of production and the burden of persuasion. Black’s Law DictionaRy 209 (8th ed.2004). The “burden of production” is a “party’s duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as a ... directed verdict.” Id. The, “burden of persuasion” is “[a] party’s duty to convince the fact-finder to view the facts in a way that favors that party.” Id. The burden of persuasion is more demanding than a burden of production because the burden of persuasion requires the burdened party to convince a fact-finder of a fact, this is not the case for the burden of production.

The majority erred by making a finding relative to the burden of persuasion rather than a burden of production. Further, the majority never defines the standard by which it demands that Mr. Mendoza prove that he suffered an infringement of his rights or a procedural irregularity. The majority leaves it unclear whether Mr. Mendoza would have to meet his burden by a preponderance of the evidence, beyond a reasonable doubt, or by some other standard. In my opinion the majority erred in this regard. The majority today imposes on Mr. Mendoza an ambiguous burden that is |3new to Louisiana law. Upon review of the record in this case, I would find that Mr. Mendoza met his burden of production.

Upon this finding, I would then look to the third step of the Carlos burden shifting framework which “reverts to the State [the burden] to prove the constitutionality of the plea.” Carlos at 559. The State may meet this burden by producing a “perfect” transcript of the guilty plea colloquy. Id. “A ‘perfect’ transcript reflects ‘a voluntary, informed, and articulated waiver of the three specific rights mentioned in Boykin.'” Id. at n. 12. Anything less than a “perfect” transcript, such as a guilty plea form or minute entry, requires the trial judge to weigh the evidence submitted by both sides and determine whether the defendant’s Boykin rights were prejudiced. Id. at 559. Because in my opinion the trial court did not commit manifest error when she found that the state failed to bear its burden of proving that Mr. Mendoza made a knowing and intelligent waiver of his Boykin rights as to either the 1997 or the 1999 predicate plea, I would affirm the trial court judgment quashing the 1997 and 1999 predicate pleas.

In Boykin v. Alabama, supra, The United States Supreme Court emphasized the three federal constitutional rights which are waived by a guilty plea. Because a guilty plea waives the accused’s fundamental rights, due process requires that the plea be a voluntary and intelligent waiver of known rights in order to be valid. State v. Galliano, 396 So.2d 1288, 1290 (La.1981); State v. Vu, 02-1243, p. 9 (La.App. 5 Cir. 4/8/03), 846 So.2d 67, 72. Clearly, a defendant must understand the language used in his or her proceeding in order to make a voluntary, informed, and articulated waiver of his or her Boykin rights. See State v. Lopes, 01-1383 (La.12/7/01), 805 So.2d 124, 126 (citing United States v. Carrion (1973, C.A.1 Mass.), 488 F.2d 12, cert. denied 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974) (The right to |4an interpreter rests most fundamentally on the notion that no defendant should face the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment.)).

When the question of whether a defendant has sufficient fluency in English arises, the court must first test the defendant’s understanding of English. A hearing to determine the defendant’s ability to understand English need not be elaborate. State v. Neave, 117 Wis.2d 359, 375, 344 N.W.2d 181, 189 (1984) abrogated by State v. Koch, 175 Wis.2d 684, 499 N.W.2d 152 (1993) (citing Chang and Araujo, Interpreters for the Defense: Due Process for the Non-Englishr-Speaking Defendant, 63 Cal. L.Rev. 801, 819 (1975)). Normally the court should be able to decide whether an interpreter is necessary by simply asking a few questions. Id. If the court suspects fraud, other testimony may be necessary to establish the extent of defendant’s ability to speak English. Id. In State v. Lopes, 01-1383 (La.12/7/01), 805 So.2d 124, n. 8, the Louisiana Supreme Court noted that,

Because we “have no jurisprudence on this issue, we find it appropriate to reference other jurisdictions to show some of the considerations that they have taken into account at such hearings: the extent of defendant’s education in the United States; the duration and extent of the defendant’s presence in an English-speaking community; and the extent to which the defendant was able to communicate with police after arrest.

The trial court’s determination of whether a defendant lacks the necessary proficiency in English will not be overturned absent an abuse of [¿¡its discretion. Scior-tino v. Seiortino, 99-3117 (La.App. 4 Cir. 11/8/00), 773 So.2d 240, 246. .

If the trial court finds that the defendant’s understanding of the English language is not adequate to render him capable of understanding the nature of the proceedings and the rights being explained, the defendant has a right to an interpreter. See Kim v. Kim, 563 So.2d 529, 530 (La.App. 5 Cir.1990). This constitutional right to an interpreter was recognized in State v. Lopes, 805 So.2d at 126, where the Louisiana Supreme Court explained, a “defendant’s constitutional right ... to testify in his own behalf may be meaningless if a language barrier causes him to be misunderstood or he misconstrues questions posed to him because he simply does not understand the language.”

In the 1997 proceedings, the issue of Mr. Mendoza’s English fluency clearly arose. In those proceedings, Mr. Mendoza’s attorney indicated that he wished for an interpreter, but admitted to the court that “once [Mr. Mendoza] knows what you are asking him he can answer simply....” Mr. Mendoza’s interpreter then stated, that Mr. Mendoza “can read a lot in English” and that he could “write too.” When the court directly asked Mr. Mendoza whether he could read and write in English however, Mr. Mendoza answered, “No, no. A little bit, but I talk sometimes really.” Wben the trial court directly asked Mr. Mendoza whether he understood “what was going on today,” Mr. Mendoza initially gave no response. Only at further prompting by the court did Mr. Mendoza muster his response, “Yeah. Now I understand'.” Despite this weak showing, the court found Mr. Mendoza | fiCould answer its questions and, it also allowed Mr. Mendoza’s daughter to translate if there was something Mr. Mendoza did not understand.

I would find that Judge Darensburg was not manifestly erroneous in concluding that this plea failed constitutionally because the original trial court did not adequately test Mr. Mendoza’s English fluency. On the 1997 plea, the trial court judge acknowledged Mr. Mendoza’s fluency problem because he instructed Mr. Mendoza’s daughter to interpret as necessary. Because that trial court judge found that an interpreter was necessary, that judge was required to follow the legal requirements as to interpreters.

For a defendant without the required English fluency to validly waive his or her Boykin rights, such defendant must have an interpreter who will both interpret the proceedings into the defendant’s native tongue and make a true translation of each of the defendant’s statements. Id. This interpreter “should be a neutral and detached individual whose abilities are first screened by the court and who is sworn to make a true, literal and complete bilateral translation.” State v. Tamez, 506 So.2d 531, 533 (La.App. 1 Cir.1987).

In Louisiana, an interpreter is an expert whose testimony is governed by the Code of Evidence. “An interpreter is subject to the provisions of [the Louisiana Code of Evidence] relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation.” La. C.E. art. 604. A trial judge must qualify an interpreter as an expert “by knowledge, skill, experience, training, or education.... ” La. C.E. art. 702. The trial court in the 1997 proceeding failed to abide by this mandate of the Code of Evidence. Judge Darensburg may have based her finding that Mr. |7Mendoza did not validly waive his Boykin rights in the 1997 proceeding based on his interpreter’s failure to meet the required standard, and the unreliability which that caused.

In the 1997 proceedings, Mr. Mendoza’s daughter interpreted for him. Although such relationship between a defendant and an interpreter does not per se make an interpretation lacking, such an interpreter is unlikely to be neutral and detached. Further, the record does not show any inquiry by the court into Mr. Mendoza’s daughter’s competency or expertise as an interpreter. This failure left the trial court in this matter, and this Court, without any basis to determine whether Mr. Mendoza’s daughter had the competency required to act as her father’s interpreter. Additionally, the transcript of the 1997 proceedings indicates that Mr. Mendoza’s daughter did not make a true, literal, and complete bilateral translation of the statements made in court and those of Mr. Mendoza. Rather, the transcript reflects that the trial judge decided to question Mr. Mendoza directly and to use his daughter as an interpreter if Mr. Mendoza indicated that he did not understand a particular question. Mr. Mendoza answered the court’s questions with either a “yes” or a “no” or by nodding his head. Multiple times after these answers however, Mr. Mendoza’s daughter also testified on her own behalf. She testified about Mr. Mendoza’s ability to read and write English, what he understood, and what she had interpreted to him. This was an improper colloquy. If the trial judge in the 1997 proceedings found that Mr. Mendoza did not have the English fluency that he needed to validly waive his constitutional rights, the trial judge should have qualified an expert interpreter and ordered that interpreter to both translate word for word |Rto Mr. Mendoza each of the statements made in the court and as translate into English each of Mr. Mendoza’s statements.

In the 1999 proceedings, a single handwritten minute entry indicates that “Felix Reyes” acted as Mr. Mendoza’s interpreter. Again however, there is no evidence that the trial court either screened Mr. Reyes for competency or otherwise qualified him as an expert. Further, the trial court may have also based its finding that Mr. Mendoza’s 1999 plea was constitutionally unreliable and invalid upon the fact that there is no evidence that the court swore Mr. Reyes to make a true, literal, and complete bilateral translation. Nor is there any evidence that Mr. Reyes made such a translation.

The trial court judges in the 1997 and 1999 proceedings failed to abide by our Code of Evidence and failed to determine whether Mr. Mendoza’s interpreters were competent. I would find that Judge Dar-ensburg did not manifestly err when she determined that Mr. Mendoza’s 1997 and 1999 convictions were unconstitutionally obtained in that the transcripts of those proceedings were not “perfect” and that the transcripts were inadequate to prove that Mr. Mendoza’s pleas in 1997 and 1999 were knowingly and intelligently made.

      . The four predicates are: (1) November 5, 1997, docket number 278468, Division "C” of the 22nd Judicial District Court, Parish of St. Tammany; (2) May 10, 1999, docket number F1229145, Division "B” of First Parish Court, Parish of Jefferson; (3) January 25, 2010, docket number F1735795, Division “B” of First Parish Court, Parish of Jefferson; and (4) January 25, 2010, docket number F1825638, Division "B” of First Parish Court, Parish of Jefferson.

      . Exhibits One and Two are certified conviction packets for defendant’s 2010 predicate offenses that have not been challenged on appeal.

      . Defendant made no claim of bias on the part of the interpreter or that the interpreter mistranslated a portion of testimony to merit consideration of this as a procedural irregularity. State v. Davis, 07-0544 (La.App. 5 Cir. 12/27/07), 975 So.2d 60, writ denied, 08-0380 (La.9/19/08), 992 So.2d 952.

      . No prejudice was alleged due to the court’s use of a group plea. A group plea is not in itself invalid. State v. Domino, 10-661 at p. 15 (La.App. 5 Cir. 1/25/11), 60 So.3d 659, 669.

      . In response to this holding, in 2001, the legislature amended La.C.Cr.P. art. 556.1, replacing subsection (E) with a harmless error provision that now provides: "Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.” See Acts 2001, No. 243, § 1. Accordingly, as the law stands today, in Louisiana there is no statutory or jurisprudential requirement that prior to entering a guilty plea a defendant must be informed of the possible enhanced penalties for subsequent offenses. See also State v. Brown, 42,188, pp. 26-29 (La.App. 2 Cir. 9/26/07), 966 So.2d 727, 749-50, writ denied, 07-2199 (La.4/18/08), 978 So.2d 347; State v. Howard, 05-0809, pp. 3-5 (La.App. 4 Cir. 1/18/06), 924 So.2d 1035, 1037-38.

      . Mr. Filby, the only defendant charged as a second DWI offender, was informed of the sentencing range for a DWI second offense.

      . The State bears this initial burden regardless of whether defendant challenges the constitutionality of his predicate guilty plea or pleas. The State must prove beyond a reasonable doubt the existence of prior guilty pleas, while represented by counsel, of the defendant currently before the court.

        . La.C.Cr.P. art. 25.1 states in relevant part, “[i]f a non-English-speaking person who is a principal party in interest or a witness in a proceeding before the court has requested an interpreter, a judge shall appoint, after consultation with the non-English-speaking person or his attorney, a competent interpreter to interpret or to translate the proceedings to him and to interpret or translate his testimony." Although this article was not yet enacted at the time of the events in question in this appeal, this article is instructive because it codifies previous law.

      . State v. Koch did not abrogate the quoted suggestion, Koch simply recognized that the United States Supreme Court in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct 708, 93 L.Ed.2d 649 (1987) had established a different criteria than was used in Neave for determining whether a rule of criminal procedure was retroactive.

      . See, e.g., People v. Lopez, 114 IlI.App.3d 1018, 70 Ill.Dec. 580, 449 N.E.2d 927, 934 (1983); Gonzalez v. Virgin Islands, 109 F.2d 215, 217 (3rd Cir.1940).

      . The court in Seiortino v. Seiortino, 99-3117 (La.App. 4 Cir. 11/8/00), 773 So.2d 240, 246, held that the trial court did not abuse its discretion in denying a civil litigant's request for a translator when that litigant alleged that English was not her first language and that she became confused when she answered questions at trial. The court noted that the Iitigant had: previously testified in a trial without the use of a translator without any problems; worked in the family business; ran a company’s computer department; owned and operated a pet store; worked as a DJ; and held a political office in the Edwards’ administration.

      In this civil case, this Court stated that, "[i]f a litigant cannot fully understand or read and write the English language, he is entitled to an interpreter.”

      . When a party appears to have a limited ability to communicate in English, the court should conduct a brief voir dire to determine the extent of the disability. Such a voir dire should avoid questions that can be appropriately answered with “yes” or "no.” The voir dire should include “wh-questions" (what, where, who, when) and questions that call for describing people, places, events, or a narration. Judge William J. Burris, The Impact of Language Barriers to Access to Justice, April-May 2009, 56 La. BJ. 416.

      . The transcript of the 1997 proceedings indicates the following exchange between the trial court and the interpreter:
      Court: He understands the statutes and the penalties?
      Interpreter: He understands the penalties, yes.
      Court: I was addressing that to Mr. Mendoza.
      Unfortunately, the trial court then moved on to its next question and never received an answer from Mr. Mendoza himself or from Mr. Mendoza’s interpreter translating a Mr. Mendoza's statement. This was improper.