text:
    LCR-M LIMITED PARTNERSHIP v. JIM HOTARD PROPERTIES, L.L.C., Elderly Housing of America, L.L.C. and James S. Hotard, Jr.
    No. 2013-CA-0483.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 2013.

      Francis Randall White, III, Francis R. White III, APLC, Covington, Louisiana, for PlaintiffAppellee.
    Vallerie Lynn Oxner, Metairie, Louisiana, for Defendant/Appellant.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   PAUL A. BONIN, Judge.

11 Elderly Housing of America, Inc., and James S. Hotard, Jr., were cast in judgment for the principal amount of $9,461.20 following a trial on the merits. The judgment was rendered in favor of LCR-M Limited Partnership. Upon receipt of the notice of judgment, the corporation and Mr. Hotard timely filed a motion for new trial claiming that their counsel of record had not been notified of the date of trial. The trial judge, in denying the motion for new trial, observed that her minute clerk had mailed notice of trial. The plaintiff-partnership concedes that there is no documentary support for the trial judge’s observation.

Upon our review of the record, we conclude that not only does the record not support the trial judge’s finding concerning any mailing by her minute clerk, but to the contrary the record establishes that the plaintiff-partnership’s counsel was served with notice of trial and that the defendants’ counsel was not served with the notice of trial. Considering that adequate notice of the date and time of the trial is a right fundamental to procedural due process, we conclude that the trial judge abused her discretion in not granting the defendants’ motion for new trial and | gvacate the judgment rendered in this matter on December 21, 2012. We remand the proceedings for a new trial.

We turn now to explain our decision in greater detail.

I

LCR-M is a plumbing supply firm which does business under the trade name The Plumbing Warehouse and Tammany Supply. It alleged in its petition that Elderly Housing of America and Jim Hotard Properties, L.L.C., entered into a contract with James S. Hotard, Jr., for the renovation of their property located at 2217 Lapeyrouse Street in New Orleans. A portion of the work was subcontracted to National Economy Plumbers, Inc. LCR-M sold $9,461.20 worth of plumbing supplies to National Economy Plumbers. According to the terms of the contract, National Economy was obligated to pay the principal amount, a service charge of 18% per annum on all amounts not paid by the 25th day following the invoices date, and attorney’s fees if the debt is placed with an attorney for collection.

LCR-M was never paid for the supplies, but it alleged that Mr. Hotard was paid personally by the other defendants for his work on the project. Subsequently, LCR-M recorded a Statement of Claim or Privilege which it asserts meets the filing requirements of the Private Works Act, La. R.S. 9:4801 et seq. Later still, LCR-M filed suit against the three defendants requesting that: 1) its privilege in |Rthe defendants’ property be recognized; 2) defendants’ property be seized and sold to satisfy the debt owned; and 3) the trial court render a judgment in its favor in the amount of $9,461.20, plus interest, service charges, costs, and attorney’s fees. All the defendants filed an answer on September 24, 2012.

In October 2012, LCR-M began the process of setting its case for trial. In the section of First City Court to which this case was allotted, parties who desire a trial date must jointly select a number of available trial dates from a list furnished to them via a written form faxed by the minute clerk to the parties’ respective counsel. In this case, counsel jointly advised the court in writing that they were both available for trial on any of the following dates in December 2012: the 10th, 11th, or 12th.

Almost immediately, counsel for LCR-M filed a motion to set for trial on the merits and submitted a proposed order, which did not specify a trial date, but instead left the final trial-date selection for insertion or completion by the trial judge. Notably, however, plaintiffs counsel requested that the motion and order, when completed and signed, be served upon himself and opposing counsel and furnished service directions.

The trial court then assigned this matter for trial on December 12, 2012, and signed the completed order. Apparently, based upon the order setting the trial date, the court’s staff prepared and filed a Notice of Trial, which also contained the trial date. There is no indication in the record (other than the city judge’s written reasons) that the Notice of Trial was mailed to any counsel.

|4The record, however, does include the sheriffs return from St. Tammany Parish, which documents that plaintiffs counsel was served on November 14, 2012 with the Notice of Trial. And, critically, the record includes the unserved return on the Notice of Trial which was directed to the defendants’ counsel. The unserved return states that on December 18, 2012 (six days after the trial) the Notice is being returned because “fees not paid for service, past court date.”

On December 12, 2012, the plaintiff appeared for trial and was represented by counsel; the defendants were absent and not represented. Prior to taking evidence, the trial judge stated on the record that notice of the trial was mailed to the defendants’ counsel on October 30, 2012, and that her staff had made several phone calls to defense counsel earlier that morning of trial but that they had received no response. The plaintiff presented two witnesses — its own general manager, and National Economy Plumbers’ president. At the close of evidence, the trial court ruled in favor of plaintiff and ordered the plaintiff to prepare a judgment. The subsequent judgment, signed on December 21, 2012, rendered judgment in favor of plaintiff and against Elderly Housing of America, L.L.C., and James S. Hotai'd, Jr., jointly, severally, and in solido for the principal amount of $9, 461, 20, plus legal interest, attorney’s fees, and costs. The judgment further recognized plaintiffs privilege over the defendants’ immovable property. Lastly, the December 21, 2012, judgment dismissed Jim Hotard Properties, L.L.C., without prejudice. On that same date, Notice of Judgment was mailed to the parties’ counsel.

|5The defendants filed a motion for new trial wherein they argued that the judgment rendered was clearly contrary to the law and the evidence because neither the defendants nor their counsel were served with notice of the trial. The trial court denied the defendants’ motion on January 3, 2013. In the order denying the defendants’ motion, the trial court observed that her minute clerk mailed a copy of the motion and order to set for trial on the merits to all counsel. The trial court further expressed the view that the law does not mandate that a notice of trial be served on the parties. Thereupon the trial court denied the defendants’ motion for new trial.

II

We turn now to explain why the trial judge’s view, as expressed in her written order denying the motion for new trial, that “the law does not mandate service of the trial date on either party” is mistaken.

A

We have previously expressed that adequate notice of trial prior to the trial is one of the most elementary requirements of procedural due process. See Chef Menteur Land Co., Ltd. v. Sandrock, 11-0497, p. 9 (La.App. 4 Cir. 10/19/11), 78 So.3d 146, 151 (citations omitted). “The trial of a case is unquestionably one of the meaningful occasions at which the parties must be given an opportunity to be heard, and adequate notice thereof is one of the most fundamental requirements of procedural due process.” Id. The precepts outlined in Chef Menteur Land Co. are not of recent vintage. In Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), the Supreme Court was confronted with a petitioner who had lost his parental rights via an adoption proceeding initiated by his ex-wife and her new husband. The adoption proceeding occurred without notice or contradictory hearing. The petitioner sought 1 r,to vacate the order in the trial court and through the appropriate appellate process to no avail. The Supreme Court granted certiorari and, with respect to the notice issue, wrote: “In disposing of the first issue, there is no occasion to linger long. It is clear that failure to give the petitioner notice of the pending adoption proceedings violated the most rudimentary demands of due process of law.” Armstrong, 380 U.S. at 550, 85 S.Ct. 1187. It further observed that while “[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Id.

Accordingly, the Court further recognized that “an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. The Court also recognized that questions frequently arise as to the adequacy of a particular form of notice in a particular case. Nevertheless, “as to the basic requirement of notice itself there can be no doubt, where, as here, the result of the judicial proceeding was permanently to deprive a legitimate parent of all that parenthood implies.” Id. Although defendants in the present matter are confronted with a loss of property, rather than that of a child, the right to receive meaningful notice of trial is no less essential in this case as it was in Armstrong.

Based solely upon the record of these proceedings, we must conclude that the defendants did not receive notice of the December 12, 2012 trial date. During the course of our review of the record, we inquired of the parties to direct us to any 17document or notation which would support the trial judge’s statement that the minute clerk had mailed such notice. LCR-M conceded that there is no record support for the trial judge’s statement. Just as importantly, we cannot ignore that the record establishes service of the notice of trial on the plaintiffs counsel and also establishes that the same notice of trial was not served on the defendants’ counsel. Thus, the record in this matter does not support the trial court’s conclusion that the defendants received notice of the trial date.

LCR-M argues that the defendants’ counsel’s participation in the trial-date selection process constitutes adequate notice. We cannot accept that argument where, as here, multiple dates were jointly selected, and it was obviously understood that at least one of the parties was required to file a motion to set for trial to obtain an actual trial date.

B

The trial judge also found that the defendants’ were not entitled to notice of trial because they had failed to file a request for notice of trial under La. C.C.P. art. 1572. Again, this is mistaken. Article 1572 is not the statutory source that a party or his counsel is entitled to notice of trial. Except where otherwise provided in Book VII of the Louisiana Code of Civil Procedure pertaining to trial courts of limited jurisdiction, such as First City Court, civil proceedings in trial courts of limited jurisdiction “shall be governed as far as practicable by the other provisions of this Code.” La. C.C.P. art. 4831. Thus, because there is no specific provision |sregarding providing notice of trial in Book VII, the general provision applicable to the district courts is applied mutatis mutandis. That provision requires that the court shall provide by rule a procedure for assigning cases for trial which “shall ... require adequate notice of trial to all parties”. La. C.C.P. art. 1571 A(l)(a). Rule 10, Section 4(b) of the Rules of the First City Court of the City of New Orleans (West 2013) acknowledges by implication the requirement of sendee of notice of trial by dispensing with such notice only in cases “where there is agreement by both parties on the trial date and all parties require that no service of notice of trial is needed.” Of course, the parties in this matter had not agreed that service of the notice of trial was unnecessary.

Generally, it is sufficient to supply notice of trial by ordinary mail only. See Coleman E. Adler & Sons, Inc. v. Waggoner, 538 So.2d 1131, 1132 (La.App. 5 Cir.1989). When, however, a party invokes the benefits of Article 1572 by requesting written notice, he is entitled to notice “by certified mail.” La. C.C.P. art. 1572. See comment (a) to La. C.C.P. art. 1571 (“Adequate notice is a minimum requirement for reasons of due process. Except as provided in Art. 1572, infra, no particular type or kind of notice is required, since the matter is to be regulated by the local rules of court.”) Thus, by not filing a request for notice of trial under Article 1572, a party is merely unable to insist upon receiving such notice by certified mail. The fact then that the defendants here did not file a request for notice under Article 1572 is, contrary to the city judge’s view, of no moment to their right to receive adequate notice of trial.

C

We conclude, therefore, that the defendants’ procedural due process rights were violated by the rendition of the money judgment against them on December |912, 2012, because there is no record support for a finding by the trial judge that the defendants were given notice of trial.

Ill

Because their due process rights were violated, the trial court should have granted the defendants’ motion for new trial. “A new trial shall be granted ... [w]hen the verdict or judgment appears clearly contrary to the law and the evidence.” La. C.C.P. art. 1972(1). A new trial should be ordered when “the judgment would result in a miscarriage of justice.” Lamb v. Lamb, 430 So.2d 51, 53 (La.1983). The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion. Joseph v. Broussard Rice Mill, Inc. 00-06328, p. 15 (La.10/30/00), 772 So.2d 94, 104. The abuse of discretion standard is highly deferential, but a court necessarily abuses its discretion if its ruling is based on an erroneous view of the law. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) and Doe v. Louisiana Bd. of Ethics, 12-1169, p. 2 (La.App. 4 Cir. 3/13/13), 112 So.3d 339, 341; see also United States v. Taylor, 487 U.S. 326, 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).

The trial court’s refusal to grant the defendants’ motion for new trial was based on a mistaken understanding of the applicable law. The defendants’ opportunity to be heard is a fundamental right that must be accorded them. The | intrial court could have secured this right to the defendants by granting their motion for new trial and reconsidering the matter.

Additionally, La. C.C.P. art. 2004, provides a basis to nullify a judgment when it was obtained by ill practices. The criteria to determine whether a judgment has been obtained by ill practice are (1) when the circumstances under which the judgment was rendered shows the deprivation of legal rights of the litigant who seeks relief and (2) when the enforcement of the judgment would be unconscionable and inequitable. See Kem Search Inc. v. Sheffield, 434 So.2d 1067 (La.1983). The court stated: “the article is not limited to cases of actual fraud or intentional wrong doing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable.” Id. at 1070. Therefore, fundamental fairness and procedural due process require that this judgment be set aside because the appellant did not receive reasonable written notice of the trial date.

DECREE

We vacate the trial court’s judgment of December 21, 2012 and remand this matter to the trial court for a new trial.

VACATED AND REMANDED.

      . The defendants assigned three other errors: 1) the trial court erred in granting a judgment against the defendants when neither party was identified in the Statement of Claim or Privilege under the Private Works Act that was recorded by the plaintiff; 2) the trial court erred in granting a judgment against the defendants when the lien affidavit recorded by the plaintiff did not itemize the materials supplied or the services rendered by the plaintiff, and 3) the trial court erred in denying the motion for new trial without a contradictory hearing. Having found merit in a single assignment which requires us to vacate the complained-of judgment, we pretermit any consideration of these other assignments.

      . La. C.C.P. art. 1572 reads:
      The clerk shall give written notice of the date of the trial whenever a written request therefor is filed in the record or is made by registered mail by a party or counsel of record. This notice shall be mailed by the clerk, by certified mail, properly stamped and addressed, at least ten days before the date fixed for the trial. The provisions of this article may be waived by all counsel of record at a pre-trial conference.

      . This standard of review is also discussed in La. C.C.P. art. 1971 Official Revision Comment (d) ("Although the trial court has much discretion regarding applications for new trial, in a case of manifest abuse the appellate court will not hesitate to set the trial court’s ruling aside, or grant a new trial when timely applied for.”).

      . As noted by the Second Circuit in Osborne v. McKenzie, 42,359, p. 8 (La.App. 2 Cir. 8/15/07), 962 So.2d 501, 505, "the courts have treated judgments rendered with a lack of notice of trial as nullities under La. C.C.P. art. 2004, and such nullity may be noticed on direct appeal of the judgment without the need for a separate action of nullity.”


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Gerrod ALLEN.
    No. 2012-KA-1757.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellee/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   DANIEL L. DYSART, Judge.

| .STATEMENT OF THE CASE:

Defendant, Gerrod Allen, was charged by bill of information with distribution of cocaine, a violation of La. R.S. 40:967(B)(4)(b). A twelve-person jury found Defendant guilty as charged. Defendant was subsequently sentenced to nineteen years at hard labor with the Department of Corrections, to run concurrently with any other sentence, with credit for time served. The State filed a multiple bill, charging Defendant as a multiple offender for having a prior conviction for possession of marijuana, second offense. Defendant pled guilty to being a multiple offender, and Defendant was resentenced to nineteen years in the Department of Corrections with credit for time served.

This appeal followed. Also, pursuant to Defendant’s pm se request, this Court sent him the record to allow him to file a brief; however, he failed to do so.

DISCUSSION:

The sole assignment of error by Defendant is that the prosecutor’s improper comments and arguments in his closing argument influenced the jury and contributed to the verdict and deprived Defendant of a fair trial. Specifically, | ^Defendant argues that the prosecutor personally attacked Defendant’s counsel, vouched for the State’s witnesses, and attempted to shift the burden of proof to the defense. Defendant contends that this Court should vacate his conviction and sentence and remand the case for a new trial.

“The general rule concerning the scope of closing arguments is that they are confined to ‘evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.’ ” State v. Casey, 99-0023, p. 17 (La.1/26/00), 775 So.2d 1022, 1036 (quoting La.Code Crim. Proc. art. 774).

This Court recently recognized the well-settled rule that prosecutors are allowed wide latitude with regard to strategy and tactics used in closing argument:

Louisiana jurisprudence on prosecutorial misconduct allows prosecutors wide latitude in choosing closing argument tactics. See, e.g. State v. Martin, 539 So.2d 1235, 1240 (La.1989); State v. Copeland, 530 So.2d 526, 545 (La.1988). Even assuming that remarks were inappropriate, a conviction will not be reversed due to an improper remark during closing argument unless the court is thoroughly convinced that the remark influenced the jury and contributed to the verdict. Much credit should be accorded to the good sense and fair-mindedness of jurors who have seen the evidence and heard the arguments, and have been instructed by the trial judge that arguments of counsel are not evidence. State v. Kyles, 513 So.2d 265, 275-76 (La.1987).

State v. Smith, 11-0091, p. 28 (La.App. 4 Cir. 7/11/12), 96 So.3d 678, 694-95, reh’g denied (8/16/12), writ denied, 12-2069 (La.3/15/13), 109 So.3d 375 (emphasis added).

Furthermore, “even when prosecutors have exceeded that latitude, courts have often criticized the improper arguments without finding that they constituted reversible error.” Id. (citing State v. Byrne, 483 So.2d 564, 575 (La.1986)). Likewise, “even if the prosecutor exceeds these bounds, the court will not reverse a conviction unless ‘thoroughly convinced’ that the argument influenced the jury and contributed to the verdict.” State v. Casey, 99-0023, p. 17, 775 So.2d at 1036 (citing State v. Martin, 93-0285, p. 17 (La.10/17/94), 645 So.2d 190, 200; State v. Jarman, 445 So.2d 1184, 1188 (La.1984); State v. Dupre, 408 So.2d 1229, 1234 (La.1982)).

Defendant concedes that in the closing argument for the defense, defense counsel argued that there were discrepancies in the accounts provided by the three police officers who testified at trial. Defense counsel also remarked that the State only called three out of the fifteen officers who participated in the operation. |4Pefense counsel also argued that there were mistakes in the police report, that the video recording of the transactions had no audio, and that the State did not produce the twenty-dollar bill in NOPD funds that was recovered on Defendant’s person.

Defendant asserts that the State in rebuttal argued that defense counsel accused the State of hiding something, and made personal attacks on defense counsel. Specifically, Defendant cites the following remarks made by the prosecutor:

We picked you all as jurors because we trust you and I trust my case. I have been up front and honest with you from the beginning and there is not a single thing I want to hide from any of you.
I would submit to you that someone— there are two individuals ladies and gentlemen who all day have been trying to ... trick you and who have been lying to you and they are sitting at that table. [Counsel for Defendant]:
Objection, personal.
THE COURT:
Sustained.
No personal attacks, sir.

Defendant also cites the following remarks made by the prosecutor:

You know another part of this case that truly bothered me is the comment made by defense counsel. They said, oh, the State should be able to bring you that money. The State should be 1 sable to bring you the cash. We are going to be able to show you that cash. It was just a ploy to mislead you.
And then, I want to call my investigator, Mr. Fitzgerald to simply explain why we can’t provide those dollar bills. And what do I get? Objection! And I’m hiding something? I’m trying to mislead you all? That’s who is hiding something and the reason they are hiding something ladies and gentlemen is because they are sitting next to a guilty man.
[Counsel for Defendant]:
We have no burden!
THE COURT:
They know that, ma’am. You don’t have to tell us that.
[Counsel for the State]:
I didn’t say they had a burden.
Once again, I have the burden in this case. Me and Mr. McAuliffe have the burden in this case to prove the case beyond a reasonable doubt in case there is any confusion about that.

Additionally, Defendant asserts that the prosecutor made the following personal attack on counsel for Defendant:

I am not here to waste peoples [sic] time. I’m here to get a drug dealer off the streets and that is what they are sitting next to. And that’s what they know he is.
[Counsel for Defendant]:
Objection!
THE COURT:
Sustained. Let’s wrap it up, sir.

The Louisiana Supreme Court has recognized that the State should refrain from making personal attacks on defense strategy and counsel. State v. Brumfield, 96-2667, p. 9 (La.10/20/98), 737 So.2d 660, 663; State v. Duplessis, 457 So.2d 604, 609 (La.1984). In State v. Manning, 03-1982, p. 75 (La.10/19/04), 885 So.2d 1044, 1108, the defendant contended that the following rebuttal remarks constituted prosecutorial misconduct:

And let me touch on a few things here, ladies and gentlemen, that Mr. Lawrence brought out in his closing. We’re all familiar with the Wizard of Oz. You remember how Dorothy and the strong man and the lion and all of that were going down the yellow brick road, looking at the almighty Oz, this wonderful man or being; had all powers. And you remember when they finally go there what it was; a little old short round guy with a bald head standing behind a curtain. It was all smoke and mirrors. All smoke and mirrors.

The defendant failed to object, however, and the Louisiana Supreme Court noted that the claim had been waived, but found that in making the above remarks, the prosecutor was simply referring back to arguments set forth by defense counsel:

Again, however, defendant lodged no objection to the guilt phase rebuttal argument and waived any claim based on it. La.Code Crim. Proc. Ann. art. 841. While the State should refrain from making personal attacks on defense strategy and counsel, State v. Brumfield, 96-2667 (La.10/20/98), 737 So.2d 660, 663, cert. denied, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999); see also State v. Duplessis, 457 So.2d 604, 609 (La.1984) (State’s comment that “a bus full of witnesses would not be enough for defense counsel because he was a ‘very skillful lawyer’ ” improper), in this case, it appears the State was neither making complimentary nor disparaging comments about counsel, but rather referring to the merits of arguments set forth on defendant’s behalf.

Id., 03-1982, p. 75, 885 So.2d at 1108.

Similarly, in State v. Fradieu, 02-0077, pp. 14-15 (La.App. 4 Cir. 6/25/03), 851 So.2d 345, 354, the defendant argued that the following prosecutorial remarks in closing argument were improper:

By Ms. Maloney [ADA]:
It is Mr. Wainwriglit’s job to stand before you and mislead you and confuse you and do anything to earn the fee that he was paid, [emphasis added]
By Mr. Wainwright:
Mistrial.
By the Court:
Denied.
By Mr. Wainwright:
This is improper argument. It’s been adjudicated by many appellate courts and I don’t know what she thinks she’s doing at this point, Judge—
By the Court:
Keep to the evidence, Ms. Maloney.

This Court found that, considering the wide latitude allowed during closing argument together with the defendant’s right to an admonition from the trial court, the defendant was not prejudiced by the prosecutor’s remarks, and distinguished the above comments from the factual scenario in State v. Duplessis and other jurisprudence upon which the defendant relied:

The court in Duplessis found reversal was necessary not because of the prosecutor’s personal attack on defense counsel but due to the cumulative nature of errors during closing argument. The trial judge in Duplessis permitted the prosecutor to make inappropriate comments, failed to give an admonition to the jury, and told defense counsel not to interrupt the prosecutor’s closing argument. In the instant case, the trial judge allowed defense counsel to object numerous times during closing argument, admonished the jury when appropriate, and cautioned the prosecutor to confine argument to the evidence.
The defendant also attempts to distinguish more recent cases, in which the prosecutor’s personal attack on defense counsel, albeit |8inappropriate, did not rise to the level of reversible error. In State v. Bridgewater, 2000-1529 (La.1/15/02), 823 So.2d 877, the prosecutor made the following remarks during closing argument:
Well, he hires himself a good lawyer and he gets a lawyer that’s going to be able to take that intent thing and kind of twist it around and hope that he can play the odds — ... he knows that the odds aren’t good that all 12 of you are going to buy this nonsense that he had no intent to kill anybody.
Bridgewater, 2000-1529, fn. 32, 823 So.2d 877, 917. The court in Bridgewa-ter found that while “prosecutors should refrain from personal attacks on defense strategy and counsel, a comment that suggests the state carried its burden despite defense attempts to show otherwise, even if improper, is not reversible error.” Bridgewater, 2000-1529, p. 33, 823 So.2d 877, 903.
The defendant in the instant case argues that the comment in Bridgewater was not as egregious as that in the instant case. While the comment by the prosecutor in the instant case was more direct, the concept was the same: a personal attack on defense strategy and counsel, a comment that the state carried its burden of proof despite defense attempts to show otherwise. In the context of the trial court’s balancing of the prosecutor’s wide latitude during closing and the defendant’s right to an admonition as a result of impermissible argument, the defendant was not prejudiced.

Fradieu, 02-0077, pp. 16-18, 851 So.2d at 355-56 (emphasis added).

As previously noted, in this case, the trial court admonished the prosecutor at the time of the defense’s objection. Additionally, the trial court instructed the jury that the closing arguments were not to be considered as evidence:

This is argument ladies and gentlemen. As I told you before it is not evidence. It’s there [sic] appreciation of what the evidence showed. And I make you a promise, their appreciations aren’t even close to one another which is a promise I made an[d] kept.

Likewise, in response to a defense objection during the State’s rebuttal, the trial court stated:

Ladies and gentlemen, again, in fulfillment of my promise they see things one way. The other side sees it the other way. You know what? Every trial would be a draw without you. That’s why we have |syou. We are going to rely on your memory as to what was said and what wasn’t said.

Although the prosecution’s personal attacks against defense counsel were improper, the trial court admonished the prosecutor and instructed the jurors that arguments of counsel are not evidence. See State v. Smith, 11-0091, p. 28, 96 So.3d at 694-95. The trial court also sustained most of the objections. Furthermore, Defendant did not ask for a mistrial. Thus, it was not error for the trial court not to grant what Defendant did not request. Accordingly, we do not find that Defendant was prejudiced by the remarks or that the remarks influenced the jury and contributed to the verdict.

Defendant also argues that the prosecutor improperly attempted to shift the burden of proof by making the following remarks:

But apparently during closing arguments we learned something else. We learned that Gerrod Allen allegedly knew those people in that house on North Robertson. He knew them all and they were fíne with him being there. A packed house of people on North Robertson Street that can corroborate this mans [sic] innocence. His friends allegedly can corroborate this mans [sic] innocence. How many of them did you hear from?

Defendant contends that defense counsel only argued in closing that the residents consented to the search of the house and that the police found no drugs in the residence. However, a review of the transcript evidences that counsel for Defendant argued that Defendant knew the individuals in the residence and that Defendant was sitting with them watching television when Detective Lainez walked into the residence:

So he says, the detective, [Defendant] walks into the house. When he goes into the house he sits down. So Detective Lainez finds Gerrod Allen sitting down in the house. He said nobody started screaming and carrying on until Detective Lainez got there.
|inSo the people in the house did not feel they were in jeopardy by Gerrod being there. Gerrod Allen knew them. He went down and sat down and was watching TV in these people’s house—

Accordingly, it appears that the State was responding to the defense’s argument that Defendant knew the individuals in the residence. Additionally, counsel for Defendant contemporaneously objected to the prosecutor’s argument that the defense did not call any of the individuals in the residence where Defendant was arrested, stating, “[w]e don’t have to bring them,” and the trial court sustained the objection. As previously noted herein, Defendant did not request a mistrial; thus, the trial court gave Defendant the only relief that he requested. Furthermore, although the trial court did not admonish the prosecutor in this particular instance, the trial court sustained the defense’s objection that Defendant did not have to call the individuals in the residence as witnesses.

Defendant further argues that the prosecutor improperly vouched for the State’s witnesses, implying that the police officers were credible, stating:

I want to know why just out of nowhere they just framed this man? Why? They had a great case. They got Reginald McCoy on video. They got Tamar-cus Barber in the car. Why all of a sudden are they just lying to frame this innocent man? I mean do they have it out for him? They haven’t even seen him before. What is their motive to get here and risk their careers and lie on this man?

Defendant further contends that the prosecutor specifically vouched for Detective Burke by stating, “[h]e brought you all the truth. He was open and honest with you.” Finally, Defendant asserts that the prosecutor vouched for the credibility of all three officers who testified by stating the following:

The bottom line is ladies and gentlemen you believe those individuals are lying, then find him not guilty. Those are three of the most decorated detectives on that force. If you believe they are lying to you then spring him free and do it fast. But I submit to you ladies and gentlemen they are not lying to you. They told you what they saw and brought you the truth.

In State v. Everett, 11-0714, p. 37 (La.App. 4 Cir. 6/13/12), 96 So.3d 605, 631, writ denied, 12-1593 (La.2/8/13), 108 So.3d 77, and writ denied, 12-1610 (La.2/8/13), 108 So.3d 77, this Court recognized that “[c]omment on the credibility of witnesses ... is proper and within the scope of closing argument.” (citing La.Code Crim. Proc. art. 774 and State v. Sayles, 395 So.2d 695 (La.1981)). Likewise, in State v. Riley, 05-1311, pp. 7-8 (La.App. 4 Cir. 9/20/06), 941 So.2d 618, 622-23, this Court noted that if the record contains facts that bear upon a witness’ credibility, commentary regarding credibility of witnesses is not improper:

General comments on the credibility of a witness are not prohibited if the record contains facts which bear on the witness’s credibility. State v. Sayles, 395 So.2d 695 (La.1981). In State v. Smith, 554 So.2d 676, 681 (La.1989), the Court stated:
[I]t has consistently been held to be reversible error for the prosecutor to express his belief in the guilt of the accused, or the credibility of a key witness, where doing so implies that he has additional knowledge or information about the case which has not been disclosed to the jury. State v. Kaufman, [304 So.2d 300 (La.1974) ]; State v. Harrison, 367 So.2d 1 (La.1979); State v. Hamilton, 356 So.2d 1360 (La.1978); State v. May, 339 So.2d 764 (La.1976) (recognizing the stated rule but finding that the prosecutor’s comment did not imply to the jury that he had personal knowledge of facts not presented to them indicating the defendant’s guilt)....

As previously noted herein, the trial court instructed the jury that the closing arguments were not to be considered as evidence. Additionally, a review of the transcript evidences that counsel for Defendant failed to contemporaneously object to any of the three statements cited above. Therefore, Defendant has waived any claim based on prosecutorial misconduct with respect to the three statements cited above. See La.Code Crim. Proc. art. 841; State v. Robinson, 01-1305, p. 14 (La.App. 4 Cir. 4/17/02), 820 So.2d 571, 580. As noted by this court in State v. Taylor, 91-2496, p. 5 (La.App. 4 Cir. 3/29/94), 635 So.2d 416, 420, “[t]he contemporaneous objection rule exists, not only so that a trial judge may correct the error at the time it is made, but it also serves notice in the record that the complained of conduct was so noticeable as to create prejudice in the minds of the jurors.”

Defendant contends that the prosecutor’s comments in this case are similar to remarks made by a prosecutor in U.S. v. Gracia, 522 F.3d 597 (5th Cir.2008), wherein the appellate court found that prosecutorial remarks were improper. The Gracia court found that the improper remarks constituted “witness bolstering,” as the prosecutor “unacceptably placed the government’s weighty stamp of approval on the only evidence” of the defendant’s guilt — the border patrol agents’ testimony. Gracia, 522 F.3d at 604, 606. However, Defendant relies upon Gracia by comparing the prosecutor’s statements in that case to the prosecutor’s remarks in this case regarding the honesty of the testifying officers. As previously noted, Defendant failed to contemporaneously object to the prosecutor’s remarks in that [ 1sregard. Furthermore, the Gracia court used a “plain error” standard, while Louisiana jurisprudence requires a contemporaneous objection to preserve an issue for appeal. This argument lacks merit.

CONCLUSION:

Assuming arguendo that the prosecutor’s remarks were improper, Defendant has not demonstrated that the remarks contributed to the verdict. The remarks made by the prosecutor in this case fall under the wide latitude afforded to parties making closing arguments. Giving credit to the good sense and fair-mindedness of the jurors who heard the arguments and evidence, it is unlikely that any of the objected-to remarks by the State in this case influenced the jury and contributed to the verdict. See State v. Robinson, 01-1305, p. 14, 820 So.2d at 580.

Accordingly, we affirm Defendant’s conviction and sentence. See State v. Casey, 99-0023, p. 17, 775 So.2d at 1036.

AFFIRMED.

      . The violation is erroneously listed on the minute entry as La. R.S. 40:967(B)(1).

      . The Louisiana Supreme Court cited the following Louisiana jurisprudence as an exam-pie of a prosecutor’s wide latitude in employing closing argument tactics:
      Louisiana jurisprudence on prosecutorial misconduct allows prosecutors wide latitude in choosing closing argument tactics.
        See State v. Martin, 539 So.2d 1235, 1240 (La.1989) (holding closing arguments that referred to "smoke screen” tactics and defense as "commie pinkos” inarticulate but not improper); State v. Copeland, 530 So.2d 526, 545 (La.1988) (holding prosecutor’s waving gruesome photo at jury and urging members to look at it if they became "weak kneed” during deliberations as not improper). Further, the trial judge has broad discretion in controlling the scope of closing arguments. State v. Prestridge, 399 So.2d 564, 580 (La.1981)

        State v. Casey, 99-0023, p. 17, 775 So.2d at 1036.

      . Defense counsel argued in part:
      Another issue I want to point out to you all and this is one of the main things that offends me so much about this case. Detective Washington told you all that he did not know who was giving the description over the dispatch. [H]e said he thin[k]s that it was Detective Barnes but he’s not certain. Not only that[,] he doesn't remember the description that was given. What is offensive about that is that they know those officers. They are not hiding. They are not out of the country. They have called three of the 15 officers that played a role in this investigation.
      [Counsel for the State]:
      Judge, we would just object. They have the power to call the other 12 and never—
      [Defense counsel]:
      It's not our burden!
      [Counsel for the State]:
      Absolutely not—
      THE COURT:
      Quit talking to one another. Ya’ll are driving me nuts. I am going to send these people home and I am going to put you all in the back. I have had enough.
      Your objection is sustained.
      Anybody can call anybody.

      . In State v. Brumfield, 96-2667, p. 9, 737 So.2d at 663, the prosecutor argued in closing that "during the course of this trial those very police officers who go about and try to protect us every day have been assailed [on cross-examination by defense counsel], have been defamed through the allegations of this defendant when he is the person who is on trial." The Louisiana Supreme Court found that the prosecutor’s argument was not improper, holding that although the State should refrain from making personal attacks on defense strategy and counsel, "the prosecutor’s statement about defense counsel’s cross-examination of police officers was a fair comment pointing out the frequently used strategy of attempting to shift the focus from the accused to the accuser.” Id.

      . In United States v. Gracia, 522 F.3d 597, 600 (5th Cir.2008), the defendant asserted the following claims:
      Gracia points to four remarks by the prosecutor that bolstered the credibility of the agents who interviewed him. First, the prosecutor expressed his opinion to the jury that the agents were "very, very credible” witnesses ("Statement One”). Second, the prosecutor asked the jurors rhetorically whether they thought that an agent “who has worked as a law enforcement agent for many years, that is his career, that is his chosen life, a man from this area, a man with a family, do you think that he would throw all that away by taking this stand and taking an oath and lying to you to get Mr. Gracia”; and whether the agents "would put their careers and criminal prosecution on the line for committing the offense of aggravated perjury” ("Statement Two”). Third, the prosecutor told the jury: "I’m going to ask you to respect their efforts as law enforcement officials and to believe the testimony that they offered” ("Statement Three”). Fourth, the prosecutor admonished the jurors that, to acquit Gracia, they would have to believe that the agents "got out of bed” on the day they arrested Gracia and decided that this was "the day that [they] were going to start [a] conspiracy to wrongfully convict Mr. Gracia” ("Statement Four”).

      . A review of the record reveals an error patent with respect to sentencing in that the sentence was illegally lenient because the trial court failed to impose the sentence without benefit of probation or suspension of sentence. With regard to illegally lenient sentences, this Court has recognized that the statute is self-correcting. State v. Tillman, 10-1717, p. 3 (La.App. 4 Cir. 9/28/11), 74 So.3d 761, 763 (citing State v. Phillips, 03-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675). Accordingly, this Court need take no action with regard to the trial court’s failure to impose the sentence without benefit of probation or suspension of sentence.


author: PAUL A. BONIN, Judge. LOMBARD, J.,

text:
    Thomas McMASTERS v. DEPARTMENT OF POLICE.
    No. 2013-CA-0348.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 2013.

      Jacques Pierre DeGruy, Peter Michael Thomson, Fowler Rodriguez, New Orleans, LA, for Plaintiff/Appellant.
    Sharonda R. Williams, Chief of Litigation, Shawn Lindsay, Elizabeth Robins, Assistant City Attorneys, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO).
   PAUL A. BONIN, Judge.

|, Thomas McMasters, an employee of New Orleans Police Department who had gained permanent status in the City’s civil service, timely appealed the decision of the New Orleans Civil Service Commission upholding the discipline imposed by Superintendent Roñal Serpas, the appointing authority. Superintendent Serpas dismissed McMasters from the NOPD and suspended him for two ten-day periods after he determined that, on November 8, 2009, Mr. McMasters filed a false police report resulting in the false arrest and false imprisonment of a young woman.

Mr. McMasters assigns seven errors in his brief to this court. One assignment argues that, because the appointing authority’s investigation did not comply with the minimum standards set forth in the Police Officer’s Bill of Rights, codified as La. R.S. 40:2531, all the discipline imposed by the appointing authority is an absolute nullity.

| .¿Because we agree that the investigation did not comply with the minimum time standards, and concluding that our recent decisions are fully dispositive of his appeal, we vacate the decision of the New Orleans Civil Service Commission, and render judgment in Mr.- McMasters’ favor because the discipline imposed is an absolute nullity. We order the reinstatement of Mr. McMasters to his prior position along with restoration of all back pay and emoluments.

We explain our decision in greater detail in the following Parts.

I

In this Part we begin by providing the factual background which gives rise to the disciplinary proceedings against Mr. McMasters, and by detailing the course of the proceedings before the appointing authority and the Commission while specifically noting the dates of important events during the investigation.

On November 23, 2009, Quanetia Davis and Kyana Boykins initiated a complaint alleging criminal misconduct by their arresting officers in the early morning of November 8, 2009. The police initiated the formal DI-1 investigation into the allegation that same day and assigned it PIB Control # 2009-1315.C.

On July 4, 2010, Mr. McMasters received notice that the internal disciplinary investigation had been completed. The notice stated that he would be “notified if a disciplinary hearing is required,” and provided the investigator’s recommended dispositions for the alleged violations. On February 16, 2011, Mr. McMasters received notice of a disciplinary hearing to be held on March 16, 2011.

laOn March 25, 2011, Mr. McMasters received a disciplinary letter stating that the appointing authority had determined that he violated rules relative to (a) moral conduct by committing false imprisonment, (b) performance of duty for failing to properly verify Ms. Boykins’ record in an arrest for prostitution by loitering, and (c) official information for documenting false or inaccurate information on the affidavit for the arrest of Ms. Boykins. For violation of the rules regarding performance of duty and official information, Mr. McMas-ters received a total suspension of 20 days — 10 days for the violation of each rule. For violation of the rule regarding moral conduct, Superintendent Serpas dismissed Mr. McMasters from the New Orleans Police Department.

On March 27, 2011, Mr. McMasters timely appealed his suspensions and dismissal to the Civil Service Commission. The Commission, after considering a hearing examiner’s recommendation to grant Mr. McMasters’ appeal, denied his appeal and upheld the appointing authority’s discipline on December 20, 2012. The Commission decided that the appointing authority established by a preponderance of the evidence that it had disciplined Mr. McMasters for cause.

On January 22, 2013, Mr. McMasters timely filed a notice of appeal, averring that the judgment of the Commission was contrary to law and evidence and was arbitrary, capricious, and clearly erroneous.

Ji.II

We turn now to address the precepts which control our review of Mr. McMas-ters’ appeal of the Commission’s decision to uphold the appointing authority’s disciplinary action.

“No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing.” La. Const, art. X, § 8. New Orleans police officers are included in the protection guaranteed by this provision. See Walters v. Dep’t of Police of New Orleans, 454 So.2d 106, 112 (La.1984). “Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged.” Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir.1990).

In order to show cause for a disciplinary action or dismissal, the appointing authority must often investigate the law enforcement officer’s alleged conduct. When a municipally-employed officer is being investigated, La. R.S. 40:2531 (the Police Officer’s Bill of Rights) sets forth parameters for the investigation.

Thus, when a formal complaint is made against any law enforcement officer, an investigation shall be initiated within 14 days of the date the complaint was made. See La. R.S. 40:2531(B)(7). An investigation is initiated when an “authorized person begins to make inquiry or collect evidence concerning a ^situation with an officer where the end result is with a view to possible disciplinary action, demotion or dismissal.” La. Att’y Gen. Op. No. 07-0073 (2007) (quotations omitted). This is usually documented through the NOPD’s completion of DI-1 investigation form. See Robinson v. Dep’t of Police, 12-1039, p. 6 (La.App. 4 Cir. 1/16/13), 106 So.3d 1272, 1275.

Every investigation of a law enforcement officer shall be completed within 60 days from the date that the investigation is initiated. See La. R.S. 40:2531 B(7). “The investigation shall be considered complete upon notice to the ... law enforcement officer under investigation of a pre-disciplinary hearing or a determination of an unfounded or unsustained complaint.” La. R.S. 40:2531 B(7). “[Njotice that does not timely alert an officer as to whether a disciplinary hearing is definitively required is deficient, dilatory and fails to sufficiently alert an officer of the status of his or her investigation.” Mulvey v. Dep’t of Police, 12-1041, p. 10 (La.App. 4 Cir. 1/30/13), 108 So.3d 891, 897. These investigatory parameters, however, do not limit or impact investigations into alleged criminal activity. See La. R.S. 40:2531 B(7). Because any criminal investigation can be (and ought to be) conducted independently of the administrative or disciplinary investigation, any investigation of criminal activity does not create a tolling period that would alter the beginning or end of the period for administrative investigations. See O’Hern v. Dep’t of Police, 12-0600 (La.App. 4 Cir. 12/19/12) (on rehearing), 111 So.3d 1037, 1052. See also, Robinson, 12-1039, p. 13, 106 So.3d at 1279.

| fiThere shall be no discipline of any sort taken against a law enforcement officer unless the investigation complies with these minimum standards. See La. R.S. 40:2531 C. Any discipline or dismissal “taken against ... a law enforcement officer without complete compliance with the forgoing minimum standards is an absolute nullity.” La. R.S. 40:2531 C (emphasis added)

Mr. McMasters timely exercised his constitutional right to an appeal from the appointing authority’s disciplinary action to the New Orleans Civil Service Commission. See La. Const, art. X, § 12(B). The Commission has “the exclusive power and authority to hear and decide all removal and disciplinary cases.” La. Const, art. X, § 12(B). This “includes the authority to modify (reduce) as well as to reverse or affirm a penalty.” Robinson, 12-1039, p. 6, 106 So.3d at 1275. Although the Commission’s function is to effectuate constitutional safeguards and protections, equally important is “the appointing authority’s duty to undertake disciplinary action against an employee for legal cause that impairs the efficiency of the public service.” Mathieu v. New Orleans Pub. Library, 09-2746, p. 5 (La.10/19/10), 50 So.3d 1259, 1262.

“The Commission has a duty to decide independently from the facts presented whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction.” Walters, 454 So.2d at 113. The Commission’s ruling indicates that the three reviewing Commissioners unanimously concurred in the denial of Mr. McMasters’ appeal.

|7Then, Mr. McMasters timely exercised his constitutional right to an appeal from the Commission’s decision to this Court, the court of appeal wherein the Commission is located. See La. Const, art. X, § 12(B). The Commission’s decision is subject to appellate review on any question of law or fact. See La. Const. Art. X, § 12(B). This Court will determine if its order was arbitrary, capricious, or characterized by an abuse of discretion. Barquet v. Dep’t of Welfare, 620 So.2d 501, 505 (La.App. 4th Cir.1993). See also, Cure v. Dep’t of Police, 07-0166, p. 2 (La.App. 4th Cir. 8/1/07), 964 So.2d 1093, 1095; Walters, 454 So.2d at 114. When there is no rational basis for the Commission’s action, its decision is arbitrary and capricious. Bannister v. Dep’t of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647. See also, Cure, 07-0166, p. 2, 964 So.2d at 1095.

The judicial review function in a matter appealed from the Commission is “multifaceted.” Walters, 454 So.2d at 113. Notably, for our purposes here, we review the Commission’s procedural decisions and interpretations of law de novo. Id. But, because of the constitutional implications arising from the distinct functions of the Commission, we are more circumspect in our review of other aspects of the Commission’s decisions. Id. at 113-114. Thus, in reviewing the Commission’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. Id. at 114.

JaPi

In this Part we examine Mr. McMasters’ contention that the Commission erred in its ruling by not overturning the NOPD’s discipline due to the NOPD’s failure to meet the minimum standards set forth in La. R.S. 40:2531 B(7) regarding the initiation and completion of investigations of a law enforcement officer’s actions within 60 days and explain why its ruling upholding the discipline must be vacated

Mr. McMasters argues that, as a result of the NOPD’s failure, the Commission’s decision should be, reversed and the discipline imposed by the NOPD should be ruled an absolute nullity. In this case, the Commission did not make any specific fact-finding or legal conclusions regarding the timeliness of the investigation by the NOPD and its compliance with La. R.S. 40:2531.

La. .R.S. 40:2531 B(7) requires that an investigation of a law enforcement officer shall be completed within 60 days of its initiation. The NOPD initiated the investigation of Mr. McMasters on November 23, 2009. This date is clear from documents sent to Mr. McMasters by the NOPD. In the notice sent on July 4, 2010, Sergeant Sanders indicates that the internal disciplinary investigation into the allegation made against Mr. McMasters was initiated on November 23, 2009. Additionally, in the “Disciplinary Hearing Notification” sent on February 16, 2011, Deputy Superintendent Defillo indicated that Ms. Davis and Ms. Boykins initiated 18a complaint of alleged criminal misconduct on November 23, 2009, and that this was a DI-1 investigation.

Because the investigation of Mr. McMasters began on November 23, 2009, had to be completed within 60 days or by January 22, 2010. See La. R.S. 40:2531 B(7). But the earliest notification that McMasters received was on July 4, 2010, a full 162 days after the statutory 60-day period expired. This notice, then, was not sufficient to complete an investigation under La. R.S. 40:2531 B(7) because it did not timely alert McMasters as to whether a disciplinary hearing was definitively required. The notice stated, “You will be notified if a disciplinary hearing is required.” This is not sufficient notice to complete an investigation under La. R.S. 40:2531 B(7). This notice is identical to the notice we previously declared deficient in Mulvey, 12-1041, p. 9-10, 108 So.3d at 896-897.

Mr. McMasters did receive a “Disciplinary Hearing Notification” on February 16, 2011 that would have been sufficient to complete the investigation under La. R.S. 40:2531 B(7) because this later notice did inform McMasters of the date of his disciplinary hearing. This later notice, however, was sent over one year after the investigatory period had elapsed.

Thus, the investigation failed to completely comply with the minimum standards of La. R.S. 40:2531 as it was not completed within the statutorily-jrequiredm 60-day investigatory period as set forth in La. R.S. 40:2531 B(7). Consequently, the discipline imposed on McMasters is an absolute nullity. See La. R.S. 40:2531 C.

IY

We now turn in this Part to comment upon two arguments asserted by the NOPD and to explain why we reject them. We address each argument below.

A

First, the NOPD contends that the appointing authority’s investigation complied with La. R.S. 40:2531 because investigations involving criminal activity toll the 60-day period to complete investigations. The NOPD contends it was at the same time also conducting a criminal investigation of Mr. McMasters for a violation of New Orleans Municipal Code of Ordinance Section 54:99, False Imprisonment. The NOPD argues that the last sentence of La. R.S. 40:2531 B(7) provides a tolling of the investigatory period for criminal investigations. This provision states, “Further, nothing in this paragraph shall limit any investigation of alleged criminal activity.” La. R.S. 40:2531 B(7). In support of this contention, the NOPD relies upon Wyatt v. Harahan Mun. Fire and Police Civil Serv. Bd., 06-81 (La.App. 5th Cir. 7/25/06); 935 So.2d 849, and Franklin v. Dep’t of Police, unpub., 10-1581 (La.App. 4th Cir. 4/6/11).

|nWe, in Robinson, however, found the reasoning of Wyatt and Franklin to be unpersuasive. There, we expressed that “[a] common sense reading of the statute means simply that the time limitations do not apply to criminal investigations. In other words, criminal investigations may take as long as necessary.” 12-1039, p. 13, 106 So.3d at 1279. “To read the statute as the NOPD argues would completely eviscerate it; that is, to adhere to the NOPD’s argument would disembowel the Police Officer’s Bill of Rights.” Id.

In both Robinson and O’Hern, we found that the provision in La. R.S. 40:2531 B(7) respecting a criminal investigation of the officer does not create a tolling period affecting the beginning or end of the administrative investigation. 12-1039, p. 13, 106 So.3d at 1279; 12-600 (on rehearing), 111 So.3d at 1052. Thus, the reliance of the NOPD on analyses which we have already rejected is misplaced.

B

Second, the NOPD argues that we should find no merit in McMasters’ assignment of error regarding non-compliance with the minimum time standards set out in La. R.S. 40:2531 B(7) because it was not set forth in his notice of appeal to the Commission pursuant to Uniform Rules, Courts of Appeal, Rule 3-1.1, which requires appellants to state with particularity each separate assignment of error.

The NOPD’s argument is rooted in Uniform Rules, Courts of Appeal, Rule 3-1.1, which requires appellants from a final decision of an administrative body, |12such as the Commission, to state with particularity each separate assignment of error in their notice of appeal (as opposed to in their briefs filed in the court of appeal). To support their argument, the NOPD cites IT Corp. v. Comm’n on Ethics for Pub. Employees, 464 So.2d 284, 292 (La.1985).

Responding to this identical argument, however, we, in Mulvey, recently found that “Rule 3-1.1 [of the Uniform Rules, Courts of Appeal] does not provide a penalty for a violation thereof.” 12-1041, p. 10, 108 So.3d at 897. In Mulvey, we acknowledged the violation of the Rule by the police officer, but “decline [d] to create a penalty for Rule 3.1-1 where the assignment of error does have merit, and the Supreme Court has not held that a violation of Rule 3-1.1 alone requires the assignment of error to be deemed abandoned.” Id. (emphasis omitted). Here again, the NOPD’s reliance on a rejected argument is misplaced.

DECREE

Accordingly, we vacate the New Orleans Civil Service Commission’s denial of the appeal of Thomas McMasters. We declare all discipline imposed, including his dismissal, by Superintendent Roñal Serpas, the appointing authority, an absolute nullity. We order the reinstatement of Mr. McMasters to his prior position along with restoration of all back pay and emoluments. All costs of this appeal are assessed to the appointing authority. See La. C.C.P. art. 2164.

VACATED AND RENDERED.

LOMBARD, J., concurs.

LOMBARD, J.,

concurs.

The in-house investigation into this matter clearly exceeded the sixty day limit mandated by the Police Officer’s Bill of Rights and, as such, cannot serve as the basis for disciplinary action by the police department.

      . A party has thirty calendar days to appeal an adverse decision of the New Orleans Civil Service Commission. See La. Const, art. 10, § 12(B). The appeal in this case was filed after the thirtieth calendar day but on the first day following that was not a holiday. The Louisiana Supreme Court has applied La. C.C.P. art. 5059 to La. Const, art. 10, § 12(A), which governs the delay in appealing from the State Civil Service Commission, when interpreting an identical provision governing the timeliness of appeal. See Guillory v. Dept. of Transp. & Dev., 450 So.2d 1305, 1307-8 (La.1984). Because the provisions cover the same topic and similar subject matter and are identical, we conclude that we should interpret the delay for filing an appeal from the New Orleans Civil Service Commission to our court just as the Supreme Court has determined the timeliness of an appeal from the State Civil Service Commission to the first circuit. See La. Civil Code art. 13. This would ensure "uniformity in the computation of all time periods prescribed by law.” Bec

        nel v. Northrop Grumman Ship Sys., Inc., 09-1318, p. 2 (La.10/9/09), 18 So.3d 1269, 1271.

      . See generally, Cornelius v. Dep't of Police, 09-1459, p. 5-6 (La.App. 4 Cir. 6/9/10), 41 So.3d 617, 620-621 (noting the distinction between DI-1 and DI-3 investigations).

      . Even if the formal investigation did not begin on November 23, 2009, it will not impact the result of this case. As this investigation stemmed from a formal complaint by Boykins and Davis, the investigation would have to be initiated within 14 days after the date that the complaint was made. See La. R.S. 40:2531(B)(7). In this case, the latest permissible date for this investigation to begin would be December 7, 2009. Notice would still have been sent well after the 60 day investigatory period running from December 7th had elapsed.

      . La. R.S. 40:2531 C provides:
      There shall be no discipline, demotion, dismissal, or adverse action of any sort taken against a police officer or law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section. Any discipline, demotion, dismissal, or adverse action of any sort whatsoever taken against a police employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity.

      . At its semi-annual Meeting on October 7, 2013, the Conference of Court of Appeal Judges amended Rule 3-1.1 to delete the requirement of assigning errors in the notice of appeal filed with a commission or agency. The Conference is the rule-making body for the Uniform Rules. The amendment is effective January 1, 2014.


author: ROSEMARY LEDET, Judge. BONIN, J.,

text:
    STATE of Louisiana v. Denzil SIMMONS.
    No. 2013-KA-0312.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 16, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, Donna R. Andrieu, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant/State of Louisiana.
    Katherine Maris Mattes, Clinical Instructor, Criminal Clinic, Tulane Law Clinic, New Orleans, LA, for Defendant/Appel-lee.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

__JjThis is a criminal appeal by the State. The State’s sole assignment of error is that the district court erred when it granted the motion to quash the multiple bill of information filed by the defendant, Denzil Simmons. For the reasons that follow, we affirm.

STATEMENT OF THE CASE

On December 11, 2009, Mr. Simmons was charged by bill of information with attempted armed robbery. Following this charge, several events relevant to this appeal took place. These events are summarized below in chronological order.

December 6,2010 Mr. Simmons was found guilty of attempted armed robbery following a bench trial. During the trial, Mr. Simmons testified that he had been convicted of a felony in the State of Mississippi at the age of sixteen. Mr. Simmons was convicted of armed robbery on February 26,1997.

February 2,2011 The Mississippi Department of Corrections mailed several documents to the Orleans Parish District Attorney’s Office, which established that _Mr. Simmons had a prior felony conviction in the State of Mississippi.

March 30,2011 Despite no indication that the State had filed a multiple billj^against Mr. Simmons, a multiple bill hearing was set for this date.

On this date, Mr. Simmons did not appear in court in response to a State request to the DOC.

The Disti'ict Attorney requested that a multiple offender hearing be on April 11, 2011._

April 11, 2011 Mr. Simmons did not appear with his attorney in court. The hearing _was continued on a defense motion._

Mr. Simmons did not appear with his attorney in court. The hearing was continued on the State’s motion._ April 21, 2011

The hearing was continued by the court. May 12, 20H~

June 2, 2011 The hearing was continued by the court.

June 16, 2011 Mr. Simmons appeared with his attorney in court. The hearing was _continued on the State’s motion._

June 30, 2011 Mr. Simmons did not appear with his attorney in court. The hearing _was continued on the State’s motion._

Mr. Simmons did not appear with his attorney in court. The hearing was continued on the State’s motion._ July 20, 2011

Mr. Simmons did not appear with his attorney in court. The hearing was continued at the request of both parties._ August 25, 2011

Mr. Simmons did not appear with his attorney in court. The hearing was continued on the State’s motion._ November 4, 2011

Mr. Simmons did not appear with his attorney in court. The hearing was reset by the court._ January 19, 2012

The State filed its Multiple Offender Bill of Information against Mr. Simmons. February 9, 2012

jMr. Simmons did not appear with his attorney in court. The hearing was continued on the State’s motion._

Mr. Simmons did not appear in court. The hearing was continued at the request of both parties. February 24, 2012

Mr. Simmons did not appear in court. The hearing was continued on _the State’s motion._ March 5, 2012

April 5, 2012 Mr. Simmons did not appear in court. The hearing was reset by the court.

May 10, 2012 Mr. Simmons did not appear in court. The hearing was reset by the _court due to a trial in progress._

May 11, 2012 Mr. Simmons did not appear in court. The hearing was continued on the State’s motion.

The Orleans Parish Defender’s office was appointed to represent Mr. _Simmons._

May 31, 2012 Mr. Simmons did not appear in court. The hearing was continued on _the State’s motion._

July 15, 2012 Mr. Simmons was released from prison after completing his sentence _for the underlying charge of Attempted Simple Robbery._

August 8, 2012 The State filed another Multiple Offender Bill of Information.

Mr. Simmons appeared with his attorney in court. The district court denied the State’s motion for continuance and dismissed the hearing without prejudice. A multiple offender hearing was scheduled for _October 16, 2012_

October 16,2012 Mr. Simmons appeared without counsel in court. The district court appointed the Tulane Law Clinic to represent Mr. Simmons and _scheduled a status hearing for October 31, 2012._

October 31, 2012 Mr. Simmons appeared with his attorney in court. A motion to quash _the bill of information was set for hearing on November 28, 2012.

November 28, 2012 The Clerk’s Office received Mr. Simmons written motion to pquash the multiple bill and the State’s response. After hearing testimony and reviewing evidence in the case, the district court granted Mr. Simmons’ motion to quash the multiple bill.

The State’s appeal followed.

STANDARD OF REVIEW

This Court in reviewing a trial court’s ruling on a motion to quash involving factual determinations — such as speedy trial violations and nolle prosequi dismissal-reinstitution cases — applies an abuse of discretion standard. State v. Hall, 13-0453, p. — (La.App. 4 Cir. 10/9/13), 127 So.3d 30, 39, 2013 WL 5568736; see State v. M.C., 10-1107, p. 11 (La.App. 4 Cir. 2/18/11), 60 So.3d 1264, 1270-71 (Bonin, J., concurring); see also State v. Tran, 12-1219, p. 2 (La.App. 4 Cir. 4/24/13), 115 So.3d 672, 673 n. 3 (explaining that “[in] reviewing rulings on motions to quash where there are mixed questions of fact as well as law, ... a trial judge’s ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion”); State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206 (“[bjecause the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.”). However, in reviewing a ruling on a motion to quash involving solely a legal issue, this Court applies a de novo standard of review. State v. Guillott, 12-0652, p. 4 (La.App. 4 Cir. 2/20/13), - So.3d -, -, 2013 WL 633093 (citing State v. Schmolke, 12-0406, pp. 2-4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298-99). Since this case involves a factual | ¿determination, we apply an abuse of discretion standard of review to determine whether the district court erred in granting Mr. Simmons’ motion to quash.

DISCUSSION

As noted at the outset, the State’s sole assignment of error is whether the district court erred in granting Mr. Simmons’ motion to quash the State’s bill of information charging him as a multiple felony offender under La. R.S. 15:529.1.

The State first argues that a defendant must show prejudice in order to defeat a habitual offender charge, citing State v. McNeal, 99-1265, p. 9 (La.App. 4 Cir. 6/14/00), 765 So.2d 1113, 1118. In McNeal, this court found no prejudice in a delay of almost two years between the defendant’s conviction and the State’s filing of the multiple bill. Id. The State also cites State v. Buckley, 11-0369, p. 7 (La.App. 4 Cir. 12/27/11), 88 So.3d 482, 487, in which this court found no prejudice when a multiple bill hearing was not commenced until nearly three years after sentence. The State argues that in Buckley “the State had informed [the defendant] at his original sentencing that it would file the multiple bill,” and the trial court found that “the State’s delay did not rise to such a level as to preclude a fair multiple bill hearing.” Id.

The State further cites State v. Grimes, 01-0576, pp. 15-16 (La.App. 4 Cir. 05/02/01), 786 So.2d 876, 885, in which this court denied the defendant’s writ disregarding the denial of his motion to quash the multiple bill of information, despite a sixteen month delay between filing of the multiple bill and the hearing. The State notes that this court opined that the defendant “failed to show that the continuances were not justified; and he ... failed to show that he was prejudiced thereby.” Grimes, 01-0576 at p. 16, 786 So.2d at 885. This court also opined:

In State v. Broussard, 416 So.2d 109, 110 (La.1982), the Louisiana Supreme Court noted that although La. R.S. 15:529.1 does not provide a time limitation, a multiple bill must be filed within a reasonable time after the State learns that a defendant has a prior felony conviction. The Court stated:
The same considerations which underlie the constitutional right to a speedy trial compel a conclusion that upon conviction a defendant is entitled to know the full consequences of the verdict within a reasonable time. Since the enhancement of penalty provision is incidental to the latest conviction, the proceeding to sentence under the provision should not be unduly delayed.

Grimes, 01-0576 at p. 5, 786 So.2d at 879.

The State concedes that the Louisiana Supreme Court, in State v. Broussard, held that a thirteen-month delay was unreasonable under the circumstances; however, it argues that Broussard represents only a single instance in which a delay of thirteen-months was found to be unreasonable. 416 So.2d at 111

The State further cites State v. Toney, 02-0992, p. 7 (La.4/9/03), 842 So.2d 1083, 1087, in which the Louisiana Supreme Court found a seventeen month delay reasonable when the State was not solely responsible for that delay. The Toney court held:

17Thus, the pivotal issue raised by this appeal is whether a 17-month delay between the filing of the multiple bill and the holding of a hearing on the issue demands that the multiple bill be quashed. This court has not previously expressly considered that issue. However, given the fact that the rule adopted in McQueen and Broussard is based on the requirement of La.Code of Crim. Proc. art. 874 that sentences be imposed without unreasonable delay, we find that the hearing on a multiple bill must be held within a reasonable time, under the facts and circumstances of the specific case, after the filing of the bill.

Id., 02-0992 at pp. 4-5, 842 So.2d at 1085-86.

The State contends that the delay which occurred in this case was not unreasonable given that Mr. Simmons was aware of his own previous felony conviction and that he has not been prejudiced by the late filing. It also contends that Mr. Simmons has been given sufficient notice pursuant to La. R.S. 15:529.1(D)(l)(a). Finally, the State contends that because the first multiple bill hearing was initially scheduled for March 30, 2011, not quite four months after Mr. Simmons was found guilty, he was not prejudiced by the State’s delay.

In response, Mr. Simmons argues that the State was negligent in its handling of this matter and that it violated both the letter and spirit of La. |sC.Cr.P. art. 874, which requires that sentences be imposed without unreasonable delay.

Mr. Simmons points out the following significant facts:

1) The State did not file its bill of information until February 9, 2012, more than one year after Mr. Simmons’ admission at trial, and after receiving confirmation of the conviction from the State of Mississippi.

2) The State failed to secure Mr. Simmons’ appearance in court on fifteen different occasions.

3) The State requested ten continuances, nine of which were granted by the trial court.

4) The State made only half-hearted and perfunctory efforts to ascertain Mr. Simmons’ whereabouts, as is made apparent by the fact that it filed the August 8, 2012 bill of information nearly one month after Mr. Simmons had been released from DOC custody.

jnMr. Simmons emphasizes that this matter has been continued fifteen times. He points out that only one of these continuances was requested by him (the April 11, 2011 continuance), and that his counsel joined in only two of the continuances.

Mr. Simmons contends that the timely filing and adjudication of multiple bills is an essential due process requirement. He notes that in determining the “reasonableness” of a delayed multiple bill adjudication, courts consider the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which are: the length of delay, the reason for the delay, an assertion of the right, and prejudice to the defendant. Mr. Simmons argues that the Louisiana Supreme Court has found these factors instructive, but not dispositive. In support, he cites State v. Muhammad, 03-2991, p. 14 (La.5/25/04), 875 So.2d 45, 55, in which the Louisiana Supreme Court held:

The court in McQueen relied on [the] defendant’s constitutional right to a speedy trial [footnote omitted] and the provision of La. C.Cr.P. art. 874 which requires criminal sentences be imposed without unreasonable delay. This court concluded the multiple offender bill must be filed within a reasonable time after the necessary information is available to the appropriate district attorney. McQueen, 308 So.2d 752, 754-55 (La.1975). See also State v. Broussard, 416 So.2d 109, 110 (La.1982). An important factor to consider in determining whether the bill was filed timely requires a determination of when the district attorney acquired the knowledge that defendant is a multiple offender. Id. The determination of whether the hearing is held within a reasonable time hinges on the facts and circumstances of the specific case. See Toney, 02-0992 at p. 5, 842 So.2d at 1086.

Id. Accordingly, Mr. Simmons submits that when the State learned of an offender’s multiple offender status and when the State filed the multiple offender charge are two critical factors to be considered.

As noted, the State’s two arguments are that the delays have not prejudiced Mr. Simmons and that its delay in filing is irrelevant because Mr. Simmons was 1 inaware of his status as a multiple offender. Mr. Simmons suggests that the State’s two arguments regarding delay are without merit. These arguments, he submits, are refuted by the cases the State presents to support them.

Mr. Simmons points out that the State refers to the result in Broussard, but it makes no attempt to distinguish this case factually from Broussard. The facts of this case, he asserts, are actually parallel to the facts in Broussard. In Broussard, the necessary information about the defendant’s prior felony convictions was available to the district attorney at the time of the original sentencing. 416 So.2d at 111. The prior convictions were obtained in the same parish during the district attorney’s tenure in office. Id. Nonetheless, the district attorney waited to file the multiple bill of information until after the defendant had served thirteen months of his original sentence and was anticipating release on parole within a few months. Id. The State offered no justification for its delay. Id. Thus, the Louisiana Supreme Court found a delay of thirteen months to be unreasonable. Id.

Similar to the Broussard case, here the State possessed the information necessary to confirm Mr. Simmons’ prior conviction, yet it failed to file the multiple bill until over twelve months later, thirteen months after sentencing. Mr. Simmons argues that the only reason the State offered for this delay was the continuances due to the State’s inability to secure Mr. Simmons’ presence while he was in the State’s custody. Also similar to Broussard, the State has unjustifiably delayed the proceedings until after Mr. Simmons’ release from custody. However, unlike the defendant in Broussard who was still on parole, Mr. Simmons has completed his sentence in full. Thus, Mr. Simmons argues the facts presented in the instant case are even more egregious than the facts in Broussard.

InMr. Simmons further argues that the State’s contentions — that he has suffered no prejudice by the nearly two-year delay and by being sent back to prison — are without merit. Mr. Simmons has completed his original sentence. He is not on parole, and he has prospects for employment.

Mr. Simmons also contends that the State’s reliance upon McNeal, 99-1265 at pp. 8-9, 765 So.2d at 1117-18, is misplaced. Although in McNeal, the State filed the multiple bill of information almost two years after the defendant’s conviction for armed robbery, Mr. Simmons, unlike the defendant in McNeal, has served his entire sentence and has been released. Id.

Finally, Mr. Simmons argues that notice alone does not remedy the prejudice to him should the district court’s ruling be reversed. He thus contends that the State’s argument that its admittedly untimely multiple bill should be overlooked because he had notice of his prior conviction is without merit. He asserts that under the Louisiana Supreme Court’s holding in McQueen, a multiple bill must be filed within a reasonable time after the State becomes aware of a defendant’s prior felony conviction. 308 So.2d at 755; see also Muhammad, 03-2991 at p. 14, 875 So.2d at 54-55. Moreover, constitutional due process and La. C. Cr. P. art. 874 require the timely filing of a multiple bill of information.

In the Broussard case the Louisiana Supreme Court stated:

In the instant case, the district attorney filed the habitual offender information thirteen months after sentence and about three months prior to the date defendant was eligible for parole. The necessary information with regard to the prior felony convictions was available to the district attorney at the time of the original sentencing on January 29, 1980, in that the convictions were obtained in the same parish during his tenure in office. Nonetheless, the district attorney delayed filing the information not only until after defendant had pled guilty to the offense charged as a result of a plea bargain and had been sentenced in conformity therewith but also after defendant had served thirteen months of his original sentence and was anticipating release 1 iaon parole within a few months. The state offers no justification for its delay in instituting the habitual offender proceedings and we can conceive of none. Once having filed the information, the state apparently attempted to complete the enhancement proceedings by May 27, 1981, two days before the date that defendant was eligible for parole; however, a recess was granted prior to completion of the hearing based on defendant’s contention that the lack of notice of the hearing had prevented him from retaining counsel who could prepare his defense. As a result thereof, the proceedings were not completed before defendant had been released on parole. Under these circumstances, we do not consider that the district attorney acted reasonably in delaying the institution of the habitual offender proceedings. Accordingly, we must reverse the ruling of the trial judge denying the motion to quash.

Broussard, 416 So.2d at 111.

Although the State argues that the Broussard case represents only a single instance where a thirteen-month delay was considered unreasonable, later cases illustrate the importance which the jurisprudence has attached to a fact-based approach. In State v. Carter, 630 So.2d 926, 931 (La.App. 4th Cir.1993), this court, relying on Broussard, found a fifteen month delay reasonable when both the State and the defendant were granted continuances, an investigation was undertaken to determine the validity of the defendant’s claim of a breach of a plea bargain agreement not to multiple bill him, and the case was transferred to a different section of court.

In State v. Langlois, 96-0084, pp. 3-4 (La.App. 4 Cir. 5/21/97), 695 So.2d 540, 543, in which a first multiple offender adjudication had been vacated, the defendant argued that the fifteen to seventeen month delay in holding a second multiple bill hearing was unreasonable. This court found that the delay was justifiable and that the defendant was not prejudiced. Id., 96-0084 at p. 6, 695 So.2d at 544. The defendant was not expecting an early release before the delayed multiple bill hearing. Id. In so finding, this court reasoned that “[t]he application of |1sthe Broussard doctrine is a fact-specific inquiry depending on the particular circumstances of each case.” Id., 96-0084 at p. 4, 695 So.2d at 543.

Two types of delays can be attributable to the State in the instant case-the delayed filing of the multiple bill of information and the delayed scheduling of the multiple bill hearing. The State was put on notice of Mr. Simmons prior felony conviction in Mississippi when Mr. Simmons revealed this information at trial on December 6, 2010. Despite receiving from the State of Mississippi written confirmation of Mr. Simmons’ felony conviction in a letter dated February 2, 2011, the State did not file its first multiple bill of information until February 9, 2012.

As to the scheduling of the multiple bill hearings, the record reveals numerous instances in which the State failed to ensure Mr. Simmons’ appearance in court, requested that the hearing be continued, or both. Mr. Simmons was in the State’s custody, and thus he was accessible had the State chosen to exert itself to secure his presence. In sum, the State requested nine of the fifteen continuances, and it failed to secure Mr. Simmons’ presence fifteen times, despite the fact that he was in State custody. Further, when Mr. Simmons was released from prison on July 15, 2012, the hearing on the multiple bill had still not taken place.

The facts and circumstances in this case roughly parallel those in the Brous-sard, case. The State had all the necessary information to confirm Mr. Simmons’ prior conviction, just as it did in Brous-sard. Yet, in this case, like in Broussard, the State delayed filing the multiple bill of information for over a year. |uThe State offers no justification for its delay, as it also failed to do in Broussard. Further, the hearing for the multiple bill of information had not taken place when Mr. Simmons was released from prison, as was the case in Broussard when the defendant was released on parole. As the Louisiana Supreme Court found in Broussard, we find the State’s delay in filing and adjudicating the multiple bill of information against Mr. Simmons was unreasonable.

Although La. R.S. 15:529.1(D) provides no specific guidance regarding the time limit for filing a multiple bill of information, La.C.Cr.P. art. 874 and the jurisprudence require that the State file the multiple bill of information and conduct the hearing on it in a reasonable time. In this case, the State’s delays in filing the bill, setting the hearing, and assuring Mr. Simmons’ presence, violated the requirement that sentences be imposed without unreasonable delay under La.C.Cr.P. art. 874. Moreover, we find the State’s delay in the multiple bill adjudication of Mr. Simmons was unduly prejudicial. Accordingly, we find no abuse of discretion in the district court’s decision granting Mr. Simmons’ motion to quash.

DECREE

For the forgoing reasons, the judgment of the district court is affirmed.

AFFIRMED.

BONIN, J.,

concurs with reasons.

U respectfully concur. A sentence under the habitual offender law, like a sentence for an underlying offense, must be imposed without unreasonable delay. But unreasonable delay in sentencing on a multiple bill entitles a defendant to quashal of the bill seeking enhancement of the penalty. Because the district attorney has not bothered to explain or justify the extraordinary delays in filing the multiple bill or in proceeding to a timely adjudication once filed despite the relatively short sentence of twenty-one months (with credit for time served) on the underlying conviction, the sentencing judge did not abuse his discretion by granting Mr. Simmons’ motion to quash the multiple offender bill of information. Returning Mr. Simmons to the penitentiary for an additional twenty-one months (forty-two months is the minimum sentence under the multiple bill) would under these circumstances be unreasonable.

      . Mr. Simmons’ birth name is Eric Thompson, which is the name he was convicted under in Mississippi,

      . The record does not reflect who requested the continuance of the hearing on this date.

      . The record reflects that the State agreed to file a Writ of Habeas Corpus to have Mr. Simmons brought to court on July 20, 2011. The record further reflects that the Orleans Parish Criminal Clerk received the State’s motion and order on July 19, 2011. Mr. Simmons' attorney was present on July 20, 2011, but Mr. Simmons was not brought to court.

      . The Clerk's Office received the State's motion and order for Writ of Habeas Corpus Ad Prosequendum on November 29, 2011. The writ was faxed to the prison on December 9, 2011.

      . The State also filed a writ application, No. 2013-K-0047, which was consolidated with this appeal.

      . This Court found no prejudice because the defendant had been convicted of armed robbery, faced a minimum of five years at hard labor, and under even the minimum sentence would still have been incarcerated at the time the State filed the multiple bill. McNeal, 99-1265 at p. 9, 765 So.2d at 1118.

      . Buckley was sentenced to twenty years, making prejudice caused by the delay unlikely. Buckley, 11-0369 at p. 11, 88 So.3d at 489. Further, this court noted that the multiple bill hearing was continued numerous times on the motions of both the State and the defense, as well as by the court itself. Id., 11-0369 at p. 7, 88 So.3d at 487.

      . The full quote from Grimes reads as follows: "[t]he trial court apparently concluded that the defendant had not been prejudiced by the delay, especially in light of the fact that he had already been re-arrested for another burglary and was back in jail. The defendant has failed to show who requested the continuances of which he complains; he has failed to show that the continuances were not justified; and he has failed to show that he was prejudiced thereby.” Grimes, 01-0576 at pp. 15-16, 786 So.2d at 885.

      .La. R.S. § 15:529.1(D)(l)(a) provides:
      If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction. Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true. If he denies the allegation of the information or refuses to answer or remains silent, his plea or the fact of his silence shall be entered on the record and he shall be given fifteen days to file particular objections to the information, as provided in Subparagraph (b) of this Paragraph. The judge shall fix a day to inquire whether the offender has been convicted of a prior felony or felonies as set forth in the information.

      . La.C.Cr.P. art. 874 provides: "Sentence shall be imposed without unreasonable delay. If a defendant claims that the sentence has been unreasonably delayed, he may invoke the supervisory jurisdiction of the appellate court.”

      . See State v. McQueen, 308 So.2d 752, 754-55 (La.1975), in which the Louisiana Supreme Court held:
      'A case must end at some point. Even persons who have been convicted of two or more felonies must be assured, after some passage of time, that the consequences of past criminal acts have abated ... [.’]
      'A defendant has a right to a speedy trial. La. Const. Art. 1, s. 9 (1921) (Art. 1, s. 16 (1974)); Sixth Amendment, U.S. Const. The same considerations which underlie this constitutional mandate compel a conclusion that upon conviction a defendant is entitled to know the full consequences of the verdict within a reasonable time. Since the enhancement-of-penalty provision is incidental to the latest conviction, the proceeding to sentence under that provision should not be unduly delayed. Cf. C.Cr.P. 874....'
      The statute does not allow an indefinite time in which the district attorney may file the multiple offender bill once the necessary information is available. Nor, however, does it impose a specific prescription period in which the district attorney must act upon the receipt of the necessary information.
      An examination of the statute and our prior interpretations of that statute lead us to the conclusion that Article 874 controls.

        Id. (citing State ex rel. Williams v. Henderson, 289 So.2d 74, 77 (La.1974)).

      . In State v. Jenkins, 595 So.2d 780 (La.App. 5 Cir. 1992), the Fifth Circuit found a delay of nearly two years between the filing of the multiple bill and the holding of the hearing was not unreasonable because the defendant had been notified immediately of the intended filing of the multiple bill and was still incarcerated at the time of the hearing. The court noted that the continuances requested by the State and the defendant were roughly equal in number.

      . At the last hearing before Mr. Simmons’ release on May 31, 2012, the State did not secure his presence. The hearing was continued on the State's motion.

      . The remedy for a trial court’s unreasonable delay in sentencing on the underlying offense is the intervention of a supervisory court to compel the sentencing without further delay. See La.C.Cr.P. art. 874.