author: CLARK, Justice. JOHNSON, C.J. Hughes, J.,

text:
    STATE of Louisiana v. Thayer GREEN
    No. 2016-K-0107
    Supreme Court of Louisiana.
    06/29/2017

      O’BRYON & SCHNABEL, APLC, Sherry Watters, for Appellant.
    EAST BATON ROUGE PARISH DISTRICT ATTORNEY’S OFFICE,- Hon. Hillar Clement Moore III, District -Attorney, Cristopher- John Martin Casler, for Respondent.
   CLARK, Justice.

| defendant, Thayer Green, was adjudicated a third felony offender and sentenced under the Habitual Offender Law to a term of life in prison without the benefit of parole, probation or suspension of sentence, for a home invasion committed as a juvenile. We granted certiorari to consider whether the United States Supreme Court’s decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which held the Eighth Amendment prohibits juvenile offenders convicted of non-homicide offenses from being sentenced to life without parole, applies to an enhanced single sentence of life in prison without parole under the habitual offender statute. For the reasons that.follow, we hold Graham is, indeed, applicable to a defendant who is adjudicated and sentenced as a habitual offender .to life without parole for an offense committed as a juvenile. Therefore, we amend defendant’s life sentence under the Habitual Offender Law to delete the restriction on parole eligibility and direct the Departs ment of Corrections to revise defendant’s prison masters according to the criteria in La. R.S. 15:574.4(D) to reflect an eligibility dáte for consideration by the Board of Parole. Furthermore, we remand the matter to the trial court for further proceedings consistent -with this opinion.

REACTS AND PROCEDURAL HISTORY

The record indicates that the 17-year-old victim, K.L., and the 17-year-old defendant, who had dated previously and had a child together, had been communicating by text messages in the days preceding the offense on July 10, 2012. Early that morning, K.L. was sitting with a male friend in his car, which was parked at the apartment complex where she was staying with her cousin, Jessica Williams. Ms. Williams’s younger sister, R.W., was also staying at the apartment.

While in her friend’s car, K.L. saw the defendant circle the parking lot in his mother’s Toyota Camry. To avoid a confrontation, she exited the car and ran to her cousin’s second-floor apartment. Defendant stopped, left his vehicle running, and pursued her.

Once inside, K.L. tried to shut the door but defendant pushed in, knocking her to the floor. He then grabbed KL. by the hair and punched her. K.L. screamed and told R.W., who had been sleeping on the couch, to call police. Defendant continued to punch, kick and choke K.L., and then grabbed a metal candlestick and struck her about the face and head. Ms. Williams, who had been asleep in her bedroom, was awakened by screams and hid in a closet to call 911. When she emerged from her room and told the defendant that she had called 911, he grabbed R.W.’s cell phone from her hand and fled. The police apprehended defendant shortly thereafter.

Defendant was charged with three counts: (1) home invasion, La. R.S. 14:62.8; (2) armed robbery, La. R.S. 14:64; and (3) aggravated battery, La. R.S. 14:34. On the second day of trial, the state disclosed that it had downloaded approximately 635 pages of text messages, which were extracted from the defendant’s cell phone and contained numerous text messages exchanged between Rhim and K.L. from April 12, 2012, through July 10, 2012, the date of the offenses. The trial court delayed the start of trial to give defense counsel time to review the messages, but denied defendant’s motion for mistrial based on the late disclosure.

Following trial, the jury found defendant guilty as charged of home invasion, and returned the responsive verdicts of guilty of simple robbery and guilty of second degree battery. The trial court denied defendant’s motions for post-verdict judgment of acquittal and new trial, revoked his probation for two prior felony convictions, and sentenced him to ten years imprisonment at hard labor as to the home invasion count, and to four years imprisonment at hard labor each for the simple robbery and second degree battery convictions. The trial court ordered the sentences to run consecutively.

The state sought to enhance the sentence for the home invasion conviction by filing a habitual offender bill of information. Defendant filed a written denial and moved to quash the multiple bill, arguing the two predicate convictions were entered on the same date in 2012. Following a hearing, the trial court adjudicated defendant a third felony offender and re-sentenced him on count one to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The trial court subsequently denied the defendant’s motion to reconsider sentence on excessiveness grounds.

Defendant appealed. The court of appeal, in an unpublished opinion, affirmed defendant’s convictions, habitual offender adjudication, and sentences. State v. Green, 15-0308 (La. App. 1 Cir. 12/17/15), 2015 WL 9260586 (McClendon, J., dissents in part with reasons). Judge McClendon dissented from the majority’s refusal to address |4whether the life sentence without parole under the habitual offender statute violates Graham.

The defendant applied for a writ of cer-tiorari seeking a review of his convictions and sentences.

DISCUSSION

Defendant raises two assignments of error, encompassing three specific issues: (1) disclosure of exculpatory evidenee/Bro-dy violation; (2) illegal sentences; and (3) excessive sentences. We will consider each issue separately.

Disclosure of exculpatory evidence/ Brady violation

The defense and the state dispute the significance and impact of the state’s late disclosure, during voir dire, of the text messages exchanged between defendant and K.L. that the state obtained from defendant’s cell phone. Defendant unsuccessfully moved for a mistrial, and later for a new trial, based on the late disclosure. Specifically, he claimed the messages should have been disclosed as exculpatory and/or impeachment material because some would have shown the victim had lied to the police when she said she had texted defendant before he arrived to tell him not to come over.

The state’s suppression of evidence favorable to the accused violates due process if the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. The Brady materiality inquiry is not “whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its ^absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). Pertinent here, the late disclosure of such evidence may also require a reversal if the timing significantly impacted the defendant’s opportunity to effectively utilize the material. State v. Kemp, 00-2228, pp. 7-9 (La. 10/15/02), 828 So.2d 540, 545-46. However, a defendant shows no entitlement to relief if the information was available to him through other means by the exercise of reasonable diligence. See generally United States v. Neuman, 849 F.2d 156, 161 (5th Cir. 1988) (government not obligated to furnish defendant with information he already has or can obtain with reasonable diligence), see also State v. Hobley, 98-2460, p. 25 n.10 (La. 12/15/99), 752 So.2d 771, 786 (“There is no Brady violation where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source, because in such cases there is really nothing for the government to disclose.”) (quoting Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998)).

The record indicates that defendant filed a motion for new trial on the ground that the trial court committed prejudicial error when it refused to grant a mistrial based on the late disclosure, Defense counsel learned of the state’s possession of the text messages just before trial, on June 23, 2013, when counsel was informed by the defendant’s family that the cell phone may contain helpful messages but had been seized by the prosecution from among the defendant’s possessions at the jail. In response to counsel’s inquiry about the phone’s whereabouts, the state made all 635 pages available, and the trial court granted the defense a half-day -recess to review them. The trial court then excluded the actual text messages from trial on the ground that their admission would have the effect | fiof permitting defendant to tes.tify without having to take the stand, but permitted defense counsel to read selected passages of the victim’s messages to defendant during the pertinent time (without defendant’s responses). The motion for new trial asserted the- late disclosure constituted prejudicial error because the excluded messages were exculpatory on the home invasion count in that the “overall message from the victim on the. night of the alleged incident was for [defendant] to come over to the victim’s house,” though she told police that she had ultimately asked him not to come over.

In his brief to this court, defendant maintains the late disclosure caused undue prejudice because, without adequate time to review áll the messages, his 'trial counsel was unable to- use them to “present a more thorough defense” to the home invasion count by showing that the victim had “demand[ed] that he come [over],” and lied to police when' she denied having asked him to visit. D. Br., p. 8; see also R., Vol. 1, p. 83. Defendant claims the omitted messages would have undermined KL.’s credibility by showing she was manipulative and had “authorized” him to enter the apartment.

The state counters that the lower courts correctly rejected this claim because: the messages were made available to the defense, and the record contains nothing to indicate that defendant himself could not have obtained them earlier by exercising reasonable diligence; thus, there was no suppression. Further, defendant can show no prejudice because defense counsel effectively utilized information from the text messages at trial. Finally, the state asserts the court of appeal correctly found all of the text messages unreviewable because neither party introduced them at trial.

[ 7While we agree with the state that 'the court of appeal' did not err in finding that all 635 pages were not subject to review because they were not introduced into evidence, we find the court erred in declining to entertain the arguments and evidence offered in the trial court in litigating the defendant’s motions for mistrial and new trial. Of. La.C.Cr.P. art. 841. Nevertheless, we conclude both lower courts reached the correct result in rejecting this claim. ■

Though a late disclosure of favorable evidence may give rise to a meritorious Brady claim; defendant shows no entitlement to relief on this basis. The defense filed a motion , for discovery and inspection of evidence, pursuant to La. C.Cr.P. art. 716, et seq., on August 21, 2012. The state responded on October 30, 2012, by providing copies of the police report and photographic evidence and asserting that “[a]ny other evidence may. be viewed by appointment” with the district attorney’s office. The record also indicates the state gained possession of the text messages from defendant’s phone thereafter, on November 8,2012, over six months before trial.

Defendant cannot show that the trial court abused its discretion in rejecting this Brady claim, given the messages were available to the defense through the exercise of reasonable diligence. Defendant’s belief that his own phone contained, helpful messages was certainly known to him at the time of his arrest, and the defense fails to explain why they waited until the eve of trial to attempt, for the first time, to; retrieve and examine the messages. Reasonable diligence would have entailed defense counsel specifying that the. text messages were an intended target of discovery and, after receiving the state’s response with the open invitation to view any other evidence by appointment, counsel making an appointment to review the messages. Notwithstanding the state’s failure to inform the defense 18when it obtained the phone’s contents, defendant could have sought to obtain the messages of which he was aware and of which he claims would have materially bolstered his defense. Instead, he asserts he had an absolute right to discovery of-his own conversations, whether or not the state intended to use them at trial, and fails to justify his failure to exercise that right sooner.

Further, setting aside the fact that not all 635 pages were admitted, we note that the messages within those voluminous pages were arranged chronologically from April 12, 2012, through the date of the offenses, July 10, 2012. See R., Vol. 1, p. 89. Among those several pages, just 250 text messages were sent or received oh the relevant dates (July 9th and 10th) between defendant and the victim. Id. Thus, anyone with knowledge of the defendant’s communications, i.e., the defendant himself or his attorney, would have been capable of identifying and assessing the relevant messages within the limited time afforded the defense at the start of trial. Under these circumstances, we agree with the lower courts that nothing was improperly withheld. Cf. Newman, 849 F.2d at 161, supra (government not obligated to furnish information defense can obtain with reasonable diligence).

Defendant also admits that he has since had ample time to review all the messages. Yet he fails to specify any unused messages, let alone show how they would have affected jurors’ evaluation of'the evidence. Rather, he merely offers a vague assertion that some unused messages would have shown “he had no intent to enter the house or harm anyone” and that the victim concocted her accusations. Because he fails to show that any omitted messages were anything other’ than cumulative of what defense counsel was permitted to read and argue to jurors, and elicit in cross-examination of the victim, he cannot show that he was denied Rverdicts worthy of confidence in their.absence. Kyles, 514 U.S. at 434, 115 S.Ct. at 1566.

Illegal sentences

Next the parties dispute the legality of defendant’s sentences. At issue is the legality of the habitual offender life sentence for defendant, who Was 17 years old at the time of the offenses.. Defendant was adjudged and punished as a third-felony offender pursuant to La. - R!S. 15:529.1(A)(3)(b),'which calls for mandatory life imprisonment.

In Graham, the Supreme Court held that the Eighth Amendment prohibits a sentence of life without parole for a juvenile offender who has not committed a homicide and requires the government to ensure that such offenders have a meaningful opportunity for release based on demonstrated rehabilitation and maturation. We find two prior decisions from this court, applying Graham, partially instructive, though neither dealt with a habitual offender life sentence as in the instant case. In State ex rel. Morgan v. State, 15-0100 (La. 10/19/16), 217 So.3d 266, this court found Morgan’s 99-year sentence for one count of armed robbery an effective life sentence which violated Graham. Prior to Morgan, this court held in State v. Brown, 12-0872 (La. 5/7/13), 118 So.3d 332, that Graham did not preclude imposition of cumulative sentences which in the aggregate match or exceed life expectancy for a juvenile convicted of multiple non-homicide offenses.

In Brown, a 16-year-old defendant was convicted of aggravated kidnapping and four counts of armed robbery, all stemming from the same episode, and sentenced to consecutive terms of life without parole and four 10-year terms (also without parole), respectively. Id., 12-0872, p. 3, 118 So.3d at 333-34. The trial court in Brown found the life sentence squarely within Graham’s purview and therefore deleted the parole prohibition for that term; it also deleted the parole prohibitions for Brown’s four remaining 10-year terms so as to effectuate Graham’s holding. On review, this court left Brown’s actual life sentence with parole eligibility intact, as amended, but reversed the trial court with respect to its amendment of the four 10-year terms and reinstated the parole prohibitions, having concluded that Graham does not affect term-of-year sentences imposed for multiple offenses (even if in the aggregate they match or exceed life expectancy). Id., 12-0872, p.15, 118 So.3d at 341. The court found that Brown’s consecutive sentences created a “complication” which eliminated any meaningful possibility of parole. Id., 12-0872, p. 14, 118 So.3d at 341. Thus, the Louisiana jurisprudence interpreting Graham thus far concludes that Graham provides parole eligibility for defendants with: (1) actual life sentences, see Brown and see also State v. Shaffer, 11-1756 (La. 11/23/11), 77 So.3d 939 (appropriate remedy for sentences of life without parole under Graham is to delete parole eligibility restriction); and (2) a single term-of-years sentence which, standing alone, constitutes an “effective” life In sentence. See Morgan. Until now, there has been no Louisiana case addressing whether an actual life sentence imposed pursuant to the Habitual Offender Law is distinguishable from other life sentences under Graham.

Defendant argues no reason exists—either within Graham or this court’s decisions—to view his life sentence under the Habitual Offender Law as beyond Graham ⅛ reach. He characterizes the instant offenses as a prime example of the transient traits of youth (impulsivity, immaturity, overreacting) which underpin Graham ⅛ categorical ban. Defendant also argues that nothing in Graham indicates a sentence of life without parole is permissible even for a juvenile non-homicide offender being punished as a recidivist. Rather, defendant maintains his sentence must afford a meaningful opportunity for release, and contends the trial court abused its discretion by ordering his sentences to run consecutively because his offenses arose from one episode.

In response, the state compares the habitual offender life sentence here to the multiple term-of-years sentences meted out in Braum, because in both cases the punishments are attributable to the respective defendant’s commission of numerous offenses. Citing federal jurisprudence, the state asserts that courts have found Graham does not “question the constitutionality of using prior juvenile convictions to enhance the sentence for a crime committed as an adult.” Noting the dearth of Louisiana jurisprudence applying Gmham to habitual offender sentences, the state concedes that the Department of Corrections may treat the defendant’s life sentence as parole-eligible in accordance with La. R.S. 15:574.4, which was enacted in response to the Graham decision.

li2The court of appeal majority found the Graham issue was not properly before it. It construed defendant’s argument as a challenge to the constitutionality of the Habitual Offender Law sentencing provision, and not as a challenge to the legality of the sentence pursuant to Graham. See Green, 15-0308, p. 13. As Judge McClen-don expressed in her dissent, however, this claim is better construed as a Graham illegal sentence claim which may be reviewed any time under La. C.Cr.P. art. 882. Green, 15-0308, p. 1 (McClendon, J., dissenting).

A review of Graham ⅛ underlying rationale reveals no basis upon which to treat a habitual offender life sentence any differently than the sentences in Shaffer, Brown, and Morgan, supra, where this court found Graham applies. The Supreme Court’s decision in Graham was founded on the- notion that juvenile non-homicide offenders, because of their youth and greater capacity for reform, are significantly less culpable than adults who have committed the same or worse offenses, and therefore deserve different treatment at sentencing. Graham, 560 U.S. at 68-69, 130 S.Ct. at 2026-27. In finding life without parole an unconstitutional punishment for a juvenile non-homicide offender, the Court held that states must give such an offender a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” and must not make any judgment at the outset that he will never be fit to rejoin society. Id., 560 U.S. at 74, 130 S.Ct. at 2030.

With these concepts in mind, we find the state fails to distinguish defendant’s habitual offender life sentence from an unen-hanced life sentence or an effective life sentence. In addition, we find the state erroneously relies on federal jurisprudence holding Graham does not foreclose the use of prior convictions for offenses committed by a juvenile to enhance the punishment for a subsequent offense committed as an adult (see n.8 infra). Here, defendant’s single enhanced [ ialife sentence as a habitual offender was imposed for an offense committed as a juvenile. Thus, we conclude Graham is applicable to defendant’s life sentence imposed pursuant to the Habitual Offender Law. Therefore, we hold defendant’s enhanced sentence as a third felony offender to life imprisonment without parole for the home invasion committed as a juvenile is illegal under Graham and can be corrected at any time pursuant to La. C.Cr.P. art. 882.

Defendant also claims , the trial court erred in imposing consecutive terms for his two remaining four-year terms because the three instant offenses occurred during the same episode. ■

Regarding the imposition of consecutive sentences, La. C.Cr.P. art. 883 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of -a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively, Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

As explained in State v. Walker, 00-3200, p. 1 (La. 10/12/01), 799 So.2d 461, 461-62:

Although La.C.Cr.P. art. 883 favors imposition of concurrent sentences for crimes committed as part of the sanie transaction or series of transactions, a trial court retains the discretion to impose consecutive penalties in cases in which the offender’s past criminality or other circumstances in his background or in the commission of the |14crimes .justify treating him as a grave risk to the safety of the community.

Here, defendant’s conduct transpired within a .very short period at one location. Thus, we find the presumption in favor of concurrent sentences applies, and the issue is whether the trial court abused its discretion by imposing consecutive terms. Absent well-articulated reasons from the sentencing court, we decline to say whether.it was an abuse of discretion to impose consecutive terms. Thus, we will remand the matter to the trial court to consider whether defendant indeed poses a grave risk to public safety and,., at a minimum, to articulate reasons for the consecutive terms.

Excessive Sentences

Finally, defendant and the state dispute whether a life sentence, even with parole eligibility under Graham, is excessive in this case. After being sentenced as a third offender, defendant filed a motion for reconsideration of sentence on excessiveness grounds, which the trial court denied without reasons.

In exceptional circumstances, the statutory minimum or mandatory sentence has been found to violate the constitutional protection. against excessive punishment. State v. Johnson, 97-1906, p. 8 (La. 3/4/98), 709 So.2d 672, 677; State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993). Under Louisiana jurisprudence, a habitual offender sentence is excessive -when it imposes a hfiPunishment grossly disproportionate to the severity of the offense or constitutes nothing more than a needless infliction of pain and suffering. See Dorthey, 623 So.2d at 1280-81 (sentence review is within the judiciary’s province and if "the punishment mandated by [La.] R.S. 15:529.1 makes no ‘measurable contribution to acceptable goals of punishment’ or [] the sentence amount[s] to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime[, the trial judge] has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive.”) (footnote omitted); see also State v. Bonanno, 384 So.2d 355, 357 (La. 1980). But a trial judge may depart downward from the mandatory minimum only if it finds clear and convincing evidence to rebut the presumed constitutionality of the mandatory minimum. State v. Lindsey, 99-3256, p. 5 (La. 10/17/00), 770 So.2d 339, 343. In applying this- jurisprudence, a reviewing court has the duty to carry out its mandate under La. Const, art. I, § 20 by remanding if the defendant has presented “a substantial possibility that his complaints of an excessive sentence [have] merit.” State v. Wimberly, 414 So.2d 666, 672 (La. 1982).

Defendant contends that imposition of the statutorily-mandated life sentence serves no worthy legislative goal and that a downward departure is, necessary to align the circumstances with the punishment. To rebut the presumption of the constitutionality of the sentence and demonstrate his exceptional nature, defendant asks this court to consider his background, including his youth, family ties, health,- employment history, and criminal record, along with the circumstances of the crimes. According to defendant, the record indicates that he had been working the night of the incident; the victim’s injuries were superficial; he and the victim have a young son together; he had been on probation for just a few months for the two h ¿prior offenses; and he had never served any jail time nor received rehabilitative services before being sentenced here. Defendant asserts that, in the event we hold Graham applies to his case, and we do, the lengthy sentence he will be required to serve before becoming parole-eligible is grossly disproportionate to the severity of his offenses. The state counters that defendant failed to show he is an exceptional offender for whom the lengthy sentence is excessive.

As previously mentioned, the evidence shows defendant and K.L. possessed the immature brains that Graham and its progeny found so different from' adult brains with respect to the critical considerations of culpability and personal control. We find defendant’s youth only amplifies the other apparent mitigating factors.

In addition, penalties in other domestic abuse cases contrast significantly with the outcome here. For example, in State v. Clanton, 06-0008 (La. App. 1 Cir. 7/10/06) (unpub’d), writ granted in part, 06-1993 (La. 6/15/07), 958 So.2d 1179 (remanding for sentence clarification), the defendant was convicted of, inter alia, two counts of domestic abuse battery and sentenced to just six months in parish jail for each, with the sentences to run concurrently, in a case in which the victim testified that during an altercation in which he bit and bruised her, defendant also grabbed and threw their four-year-old son in the apartment they shared. Similarly, in State v. Vesey, 07-1029 (La. App. 3 Cir. 9/11/07) (unpub’d), writ denied, 07-2017 (La. 6/6/08), 983 So.2d 916, the defendant was found guilty of, inter alia, domestic abuse battery and sentenced to a suspended term of six months in parish jail with 24 months of supervised probation, where the evidence showed that he had kicked and punched his wife in the stomach. The juvenile defendant here was sentenced to life imprisonment, albeit as a recidivist, for circumstances involving substantially the same or similar conduct by the adult offenders in Clanton and Vesey.

Considering the totality of the circumstances, including defendant’s youth, and the relative harshness of defendant’s sentences as compared to other defendants convicted of harming their romantic partners in domestic disputes, we conclude defendant has presented “a substantial possibility that his complaints of an excessive sentence [have] merit,” see Wimberly, 414 So.2d at 672, and thereby | ^triggered this court’s duty under La. Const, art. I, § 20 to remand for a hearing at which defendant will be permitted to present mitigating evidence to show that his life sentence is excessive and for re-sentencing in accord with the prohibition against excessive punishment. See Bonanno, 384 So.2d at 357; cf. State v. Mosby, 14-2704 (La. 11/20/15), 180 So.3d 1274 (30-year habitual offender sentence for 72-year-old, non-violent offender deemed “grossly out of proportion to the severity” of the offense and therefore unconstitutionally excessive).

DECREE

For the reasons expressed herein, we hold Graham is applicable to a defendant who is adjudicated and sentenced under the Habitual Offender Law to life without parole for a non-homicide offense committed as a juvenile. Accordingly, we affirm defendant’s convictions and amend his life sentence under the Habitual Offender Law to delete the restriction on parole eligibility and direct the Department of Corrections to revise defendant’s prison masters according to the criteria in La. R.S. 15:574.4(D) to reflect an eligibility date for consideration by the Board of Parole. Further, we remand the matter to the trial court to reconsider the corrected sentence after first conducting an evidentiary hearing to allow defendant the opportunity to establish mitigating circumstances under State v. Dorthey, 623 So.2d 1276 (1993), and State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, and to articulate reasons if consecutive terms are imposed.

CONVICTIONS AFFIRMED; SENTENCE AMENDED; AND REMANDED.

JOHNSON, Chief Justice, dissents in part and assigns reasons.

HUGHES, Justice, dissents for the reasons given by Johnson, C.J.

JOHNSON, C.J.

dissents in part and assigns reasons.

hi respectfully dissent from the majority’s rejection of defendant’s Brady claim.

The underlying story of this case involves two impetuous teenagers, the defendant and K.L., who had a previous romantic relationship and shared a child together. The two were immature teens, and their relationship was apparently up and down and ponsisted of frequent arguing and manipulation. On the night of July 10, 2012, defendant drove to K.L.’s residence only to find her with another male in the parking lot. Defendant entered KL.’s apartment where a struggle ensued and defendant left the apartment taking a cell phone. Defendant was eventually charged with home invasion, armed robbery and aggravated battery.

On the second day of defendant’s trial, the state disclosed for the first time that it had seized defendant’s cell phone months earlier and had downloaded all of the text messages. The state then disclosed to the defendant 635 pages of text messages which had been extracted from defendant’s cell phone. Defendant unsuccessfully moved for a mistrial (and later a new trial) based on the late disclosure of the text messages. The jury eventually found defendant guilty on the home invasion charge, and returned responsive verdicts of simply robbery and second degree battery.

In my view, the state’s late disclosure of the text messages constitutes a clear Brady violation. The state’s suppression of evidence favorable to the accused 12violates due process if the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The late disclosure of such evidence may also require a reversal if the timing significantly impacted the defendant’s opportunity to effectively utilize the material. State v. Kemp, 00-2228 (La. 10/15/02), 828 So.2d 540, 545-46. There is no doubt the text messages contained exculpatory evidence, specifically related to defendant’s guilt as to the home invasion charge, and thus were required to be disclosed to the defendant pursuant to Brady. Moreover, because these messages were not disclosed until the second day of trial, defendant was not able to effectively use this evidence in his defense, requiring a reversal of his conviction.

The narrative of what happened on July 10, 2012, is told through the text messages between defendant and KL. The text messages suggest KL. orchestrated the events of that night by toying with defendant and inviting him to her residence when she was there with another boyfriend, KL. told police that she advised defendant she did not want him to come over or to see him, but the text messages sent by KL. show otherwise. The texts establish KL.’s pattern of manipulation of the defendant,' wherein she repeatedly enticed defendant to come over to her residence. KL.’s credibility was called into question when she testified that despite what was said in the text messages, she did not really want the defendant to come over, that she was just being sarcastic and joking with him, and she was playing with his mind to see what he was going to do.

These text messages were exculpatory on the home invasion charge because they demonstrate KL. wanted and invited defendant to come to her residence on the night of July 10, 2012. The messages were central to the defense that there was no “unauthorized” home invasion because K.L. invited defendant to her residence.

|sThe state’s failure to timely disclose the exculpatory evidence impacted the fundamental fairness of the prosecution as it denied defendant his right to a fair trial and due process of law. The defendant did not have access to the texts while conducting voir dire, an essential element of trial, and was further prevented from adequately preparing his defense, particularly as- to the home invasion count. The texts confirm the defendant was invited to KL.’s residence and support the physical evidence that there was no forced entry. Had the defendant been given sufficient time to prepare his defense based on the texts obtained by the state, he could have fully impeached KL.’s testimony, which was critical to the state’s case.

Further, I disagree with the majority’s finding, that the district court did not abuse its discretion in rejecting the Brady claim because the text messages were available to the defense through the exercise of reasonable-diligence. In this case, defendant specifically requested impeachment and exculpatory evidence from the State on August 21, 2012, but was never informed when the texts were obtained. Additionally, the defendant was actively looking for his phone, knowing that it held crucial evidence for his defense. The defense was never told that the state had possession of defendant’s phone or that a search warrant had been secured for the phone and access to the information on the phone.

The text messages contained concrete exculpatory evidence, specifically relating to the home invasion charge. The late disclosure of the text messages significantly impacted the defendant’s opportunity to utilize the material and led directly to defendant’s conviction. For these reasons, I would vacate defendant’s conviction and remand the matter for a new trial. See Brady and Kemp, swpra.

Hughes, J.,

dissents.

hi respectfully dissent for the reasons given by Johnson, C.J.

      . La. R.S. 15:529.1.1

      . State v. Thayer Green, 2016-0107 (La. 2/24/17), 216 So.3d 55

      . In charging defendant as a third felony offender, the state relied upon his April 18, 2012 guilty plea to simple burglary in the 19th JDC, for an offense committed on August 15, 2011, and his April 18, 2012 guilty plea to simple robbery in the 19th JDC, for an offense committed on December 2, 2011.

      . In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that the suppression by the prosecution of evidence favorable to the accused after receiving a request for it violates a defendant’s due process rights where the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution. Id., 373 U.S. at 87, 83 S.Ct. at 1196-97.

      . The defendant compares his case with State v. Bright, pp. 7-8, 02-2793 (La. 5/25/04), 875 So.2d 37, 42-43, in which the defendant was entitled to relief as a result of the suppression of evidence impeaching the sole eyewitness linking the defendant to the crime, and argues he is similarly entitled to relief because, as in Bright, nothing but eyewitness accusations established his guilt. In Bright the state suppressed the star witness’s rap sheet and jurors therefore did not learn that he had a simple burglary conviction and was on parole at the time of the offense and when he identified Bright from a photo lineup. Unlike in Bright, however, because defendant here has failed to show that anything in the text messages omitted from trial would have materially undermined the victim, he shows no grounds to disturb his convictions.

      . La. R.S. 15:529.1(A)(3)(b) provides:
      If the third felony and two prior felonies are defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of [18] at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

      . See generally United States v. Orona, 724 F.3d 1297, 1308 (10th Cir. 2013)(citing United States v. Banks, 679 F.3d 505 (6th Cir. 2012) and United States v. Scott, 610 F.3d 1009, 1018 (8th Cir. 2010)).

      . Although an illegal sentence “is primarily restricted to those instances in which the term of the prisoner’s sentence is not authorized by the statute or statutes which govern the penalty,” State v. Mead, 2014-1051, p.3 (La. App. 4 Cir. 4/22/15), 165 So.3d 1044, 1047, in Montgomery v. Louisiana, 577 U.S.-, 136 S.Ct 718, 193 L.Ed.2d.599 (2016), the United States Supreme Court reiterated that a substantive rule of constitutional law, such as that introduced in Graham, isreview-able at any time.

      . See generally State v. Baham, 14-0653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558 (if trial court elects to impose consecutive sentences for single course of conduct, it must articulate its reasons), writ denied, 15-0040 (La. 3/24/16), 190 So.3d 1189; see also State v. Brown, 15-0096 (La. App, 5 Cir. 9/15/15), 173 So.3d 1262 (same); State v. Harris, 11-0626 (La. App. 5 Cir. 11/27/12), 105 So.3d 914 (same); State v. Blanchard, 03-0612 (La. App. 5 Cir. 11/12/03), 861 So.2d 657 (same); cf. State v. Cornejo-Garcia, 11-0619 (La. App. 5 Cir. 1/24/12), 90 So.3d 458 (if trial court elects to impose consecutive sentences for single course of conduct, it must articulate its reasons', though failure does not require remand if the record provides an adequate factual basis to support the consecutive sentences). Because the record does not contain an adequate basis for the trial court’s decision here, a remand for articulation of reasons, is necessary, ...

      . Defendant asserts it is relevant to the excessive sentencing inquiry whether he.previously served prison time and/or made a concerted effort at rehabilitation, citing State v. Ross, 2015-1113 (La. App. 4 Cir. 12/21/16), 207 So.3d 511. Defendant received probation in April 2012 for the two prior felonies used as predicate offenses for the purpose of the multiple bill and claims he was "barely enrolled in the probation system at the time of this incident,” in early July 2012, D. Br. 26. , He further argues that "[w]here there has been no graduated sentencing and no shock of real incarceration previously, imposing a life sentence plus [eight] years, even with parole [after 38 years], as a juvenile’s first incarceration is particularly traumatic, excessive, and not within the goals of the multiple bill statute!].” Id.

      . Although not in evidence, defendant submitted, in the appendix of his writ application, an affidavit obtained from K.L. while his appeal was pending in the First Circuit Court of Appeal, Briefly, the sworn statement indicates K.L., a juvenile at the time, felt pressure to embellish her account of the incident and harbors regret for her own personal conduct and the harsh outcome of the case. Despite the strong suspicion courts generally have about recantations, see State v. Clayton, 427 So.2d 827, 833 (La. 1982), in this matter, we find the statements within the affidavit from K.L., if properly admitted into evidence and found to be truthful, may be probative regarding sentencing because these statements could be consistent with some of her behavior during trial. For example, Angela Green, the defendant’s mother, testified that K.L. told her via text that she "got to play the game” but assured her that she had changed and embellished her story so much that "[t]hey ain’t going to be able to put them together,” suggesting K.L. believed the jury would not be able to return guilty verdicts. Ultimately, because the affidavit is not in evidence, we express no opinion regarding its probative value.

      . Notwithstanding the verdicts here (home invasion, simple robbery, second degree battery), the state did not dispute defendant’s use of the term "domestic abuse” to describe the evidence, and we find no reasonable basis to dispute that the circumstances in fact closely resemble domestic abuse, given defendant and K.L. were romantically involved, had a child together, and the impetus for defendant's outrage was his adolescent jealously over K.L.’s involvement with another young man.
      Moreover, though defendant was punished as a third offender and sentenced to life for home invasion, we find no reason to view that count and its sentence as meaningfully isolated from what transpired after he pushed his way into the apartment. Compare La. R.S. 14:35.3 (domestic abuse battery is "the intentional use of force or violence committed by one household member upon the person of another household member without the consent of the victim,” which is punishable as a misdemeanor for a first offense by between 30 days and six months in jail with at least 48 hours without parole) with La. R.S. 14:34.1 (second degree battery is a battery committed when the defendant intentionally inflicts serious bodily injury; punishable as a felony with a sentence of up to eight years at hard labor).


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF A.C.
    No. 2017-CK-0182
    Supreme Court of Louisiana.
    6/29/2017
    WASHINGTON PARISH DISTRICT ATTORNEY’S OFFICE, Hon. Warren Montgomery, District Attorney, Matthew Caplan, for Applicant.
    Brian Anthony Dragon, for Respondent.
   PER CURIAM

hOn March 7, 2016, the state filed a petition alleging A.C., at the age of 14 years, committed the felony-grade delinquent acts of aggravated rape of a victim under the age of 13 years, La.R,S. 14:42, and indecent behavior with a juvenile, La. R.S. 14:81. That same day, A.C. appeared to answer the petition and denied the allegations. Pursuant to La.Ch.C. art. 877(B), the state had 90 days to commence the adjudication hearing, which was until Monday, June 6, 2016. The juvenile court set the adjudication hearing for Friday, June 3, 2016.

On that date, the state made a motion to continue the hearing alleging that the prosecutor and the family of the victims had been out of town and witnesses had not been subpoenaed. Counsel for A.C. objected and indicated that, as soon as the 90-day limit passed, counsel would file a motion to dismiss the delinquency petition. The juvenile court found there was not good cause to extend the 90-day period and additionally dismissed the delinquency petition at that time. The state objected and gave notice of its intent to seek supervisory review in the court of appeal.

The court of appeal granted the state’s writ application and reversed the ruling of the juvenile court, finding: “The district court prematurely dismissed the [state’s] petition. See La.Ch.Code. art. 877.” State in the Interest of A.C., 16-1052 (La. App. 1 Cir. 10/7/16) (unpub’d). A.C. did not apply for rehearing in the first circuit or seek supervisory review in this court.

|2On October 13, 2016, A.C. moved again to dismiss the delinquency petition, contending that the 90-day time limit had run, and argued in the alternative that the time was not suspended when the state sought supervisory review or, if the time was suspended, it began to run again after the court of appeal’s ruling on October 7, 2016, and had now run out. After the juvenile court denied A.C.’s motion to dismiss, A.C. gave notice of his intent to seek supervisory review from the court of appeal.

The court of appeal granted A.C.’s writ application and dismissed the delinquency petition for failure to timely commence the adjudication hearing. The court of appeal found:

When a “child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.” La.Ch. Code art. 877(B). The mandatory time limitations provided in La. Ch. Code art. 877 were set forth to ensure expedited adjudication of children. See State v. Roberson, 2014-1996 (La. 10/14/15), 179 So.3d 573, 576. Through no fault of the juvenile, the mandatory time limitation for the commencement of the adjudication hearing has exceeded the ninety-day requirement by six months. Accordingly, the district court’s ruling denying the juvenile’s motion to dismiss is reversed, and this matter is remanded to the district court for further proceedings in accordance with this decision.

State in the Interest of A.C., 16-1492 (La. App. 1 Cir. 12/28/16), 2016 WL 7488850 (unpub’d). One member of the appellate panel dissented:

I find the district court did not err in denying the juvenile’s motion to dismiss, filed on October 13, 2016. This Court’s decision in State of Louisiana in the Interest of A.C., 2016-1052 (La. App. 1st Cir. 10/7/16) (unpublished writ action) became final on October 21, 2016 in accordance with La. Code Crim. P. art. 922(B). The motion to dismiss the juvenile’s petition, filed on October 13, 2016, was filed prematurely.

Id. (Pettigrew, J., dissenting). Implicit in the dissent’s view is a determination that the 90-day time limit was suspended while the state sought supervisory review. For the following reasons, we find the dissent’s view is correct.

Children’s Code article 877 provides:

|sA. When the child is charged with a crime of violence as defined in R.S. 14:2(B) and the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall com-menee within sixty days of the appear-anee to answer the petition. In all other cases, if the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.

In State of Louisiana in the Interest of J.M., 13-2573, p. 5 (La. 12/9/14), 156 So.3d 1161, 1163, this court reiterated that “[t]he time limits in Article 877 are mandatory and may not be extended absent a showing of good cause.” Moreover, “it is incumbent upon the state to make a showing of good cause and obtain an extension before the period has run.” Id. (quoting State in the Interest of R.D.C., Jr., 93-1865 (La. 2/28/94), 632 So.2d 745, 749) (emphasis in original). The state asserted that there was good cause here on day 88 before the 90-day period ran out and the court of appeal previously found the juvenile court acted prematurely in dismissing the petition. We need not now determine whether there was good cause to extend the time limit because the juvenile court’s dismissal was premature.

A question remains as to the effect of supervisory review on the time limit. In State in the Interest of R.D.C, Jr., this court noted that “given the importance of the good cause determination, the judge should allow the state latitude to seek expedited appellate review of an adverse ruling. Id., 93-1865, 632 So.2d at 749. In State in the Interest of J.M., this court provided guidance as to the procedure to seek review of a denial of a motion to continue a delinquency adjudication hearing, stating: “The proper procedural remedy for a denial of the motion to continue |4would [be] to argue that the time limit was suspended, object to the denial for a continuance, notice intent to seek supervisory writs, and request a stay.” State in the Interest of J.M., 13-2573, p. 4, 156 So.3d at 1164 (citing State in the Interest of R.D.C., Jr., 93-1865, 632 So.2d at 749). While the state’s decision to seek review of a ruling is clearly within its control, the adverse ruling that prompts that decision is beyond the state’s control. Cf. State of Louisiana in the Interest of A.D., 12-0258, p. 3 (La. App. 4 Cir. 8/15/12), 98 So.3d 950, 952 (“Waiting on appellate review is a delay beyond the [s]tate’s control which impinged on its ability to prepare for and commence the adjudication hearing.”). Here, because the juvenile court dismissed the petition, the state could not commence the adjudication without first seeking review and ultimately receiving a favorable ruling. While it would have been a better practice for the state to seek a stay from the juvenile court, or obtaining none from that court, seek a stay from the court of appeal, we find the state’s failure to obtain a stay is not fatal under the circumstances. To find the 90-day time limit unsuspended by appellate review would render the appellate review process futile and the court of appeal’s initial ruling here purely academic.

Under La.C.Cr.P. art. 922(B), “A judgment rendered by the supreme court or other appellate court becomes final when the delay for applying for a rehearing has expired and no application therefor has been made.” While the Children’s Code contains a provision authorizing supervisory review, La.Ch,C. art. 338, it contains no provision comparable La.C.Cr.P. art. 922(B) regarding finality. Given the fundamental necessity for rules determining finality of judgments, we proceed, as authorized by La.Ch.C. art. 104(1), in accordance with La.C.Cr.P, art. 922(B). As pointed out by Judge Pettigrew in dissent, the court of appeal’s ruling, issued on October 7, 2016, did not become final until October 21, 2016. Therefore, as Judge Pet-tigrew found, A.C.’s motion to dismiss filed on. October 13 was premature. ■

^Accordingly, we reverse the ruling of the court of appeal and remand for further proceedings in the juvenile' court-'consistent with the views expressed here. We further note that the state, through no fault of its own, has been unable to commence the delinquency adjudication hearing while review of this matter was pending,' and our ruling also must become final in accordance with La.C.Cr.P. art. 922(B), before the state can proceed. Therefore, the 90-day time limit has not expired yet and the state has a window, albeit a small one, in which to commencé the adjudication hearing.

REVERSED AND REMANDED

Genovese, J., dissents.


text:
    IN RE: Catherine L. STAGG
    NO. 2017-B-1087
    Supreme Court of Louisiana.
    09/06/2017
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

11 Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which respondent acknowledges that she negligently violated the following provisions of the Rules of Professional Conduct: Rules 1.2 (scope of the representation), 1.4 (failure to communicate with a client), and 5,3 (responsibilities regarding nonlawyer assistance). Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Catherine L. Stagg, Louisiana, Bar Roll number 12379, be and she hereby is publicly reprimanded.

IT IS FURTHER ORDERED that respondent shall be placed on unsupervised probation for á period of two years, subject to the conditions set forth in the Petition for Consent Discipline.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme - Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid. . .


author: PER CURIAM:

text:
    STATE EX REL. Albert SCOTT a/k/a Albert Jonathan Scott v. STATE of Louisiana
    No. 2017-KH-0859
    Supreme Court of Louisiana.
    09/06/2017
   ON SUPERVISORY WRITS TO THE THIRTEENTH JUDICIAL DISTRICT COURT, PARISH OF EVANGELINE

PER CURIAM:

JjWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE EX REL. Joshua HOGAN v. STATE of Louisiana
    No. 2017-KH-0742
    Supreme Court of Louisiana.
    09/06/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

hWRIT NOT CONSIDERED, Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per cu-riam.


text:
    STATE EX REL. Donea Lavoy JACKSON v. STATE of Louisiana
    No. 2017-KH-0727
    Supreme Court of Louisiana.
    09/06/2017
   ON SUPERVISORY WRITS TO THE SECOND JUDICIAL DISTRICT COURT, PARISH OF BIENVILLE

PER CURIAM:

11WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Troy A. GRANT v. STATE of Louisiana
    No. 2017-KH-0721
    Supreme Court of Louisiana.
    09/06/2017
   ON SUPERVISORY WRITS TO THE EIGHTEENTH JUDICIAL DISTRICT COURT, PARISH OF WEST BATON ROUGE

PER CURIAM:

|,WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per cu-riam.


text:
    Gustave J. LABARRE, Jr., et al., v. OCCIDENTAL CHEMICAL COMPANY, et al.
    NO. 2017-CC-0551
    Supreme Court of Louisiana.
    9/6/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF ASSUMPTION

[Rehearing denied.

11 CRICHTON, J., would grant rehearing and docket for thorough consideration and opinion.


author: GENOVESE, J.,

text:
    STATE of Louisiana v. Marvin JOHNSON
    NO. 2016-OK-1520
    Supreme Court of Louisiana.
    09/06/2017
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF ASSUMPTION

Writ denied.

GENOVESE, J.,

would grant and assigns reasons:

h Defendant was tried and convicted by a six-person jury for a felony punishable at hard labor. The Louisiana Constitution states: “A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.” La.Const. art. 1, § 17(A). Additionally, this constitutional mandate is codified in La.Code Crim.P. art. 782(A) which states: “Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.”

Thus, it is crystal clear that a felony punishable at hard labor shall be tried by a twelve-person jury, not a six-person jury. The word “shall” is mandatory. This error is structural. A constitutional and legislative mandate cannot be sluffed off as harmless error. I would grant this writ to correct the structural error.


text:
    STATE EX REL. Kenneth MODIQUE v. STATE of Louisiana
    No. 2016-KH-0854
    Supreme Court of Louisiana.
    09/06/2017
   ON SUPERVISORY WRITS TO THE THIRTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF CALDWELL

PER CURIAM:

| denied. Relator’s pleading is not a bona fide motion for new trial, despite its caption, because it was filed untimely in the district court. See La.C.Cr.P. art. 851(B)(1) and (5); La.C.Cr.P. art. 853; see also Smith v. Cajun Insulation, 392 So.2d 398, 402 n.2 (La. 1980) (“courts should look through the caption of pleadings in order to ascertain their substance and to do substantial justice”). Rather, the pleading, in which he complains about the state’s evidence and an alleged conflict of interest, is properly construed as an application for post-conviction relief. See La.C.Cr.P. art. 924(1) (“An ‘application for post conviction relief means a petition filed by a person in custody after sentence following conviction for the commission of an offense seeking to have the conviction and sentence set aside.”). Relator fails to carry his burden of proving any entitlement to post-conviction relief. See La.C.Cr.P. arts. 930.2; La. C.Cr.P. art. 930.3.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within b.the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Larry EVERETT v. STATE of Louisiana
    No. 2016-KH-0808
    Supreme Court of Louisiana.
    09/06/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

| TPenied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. The claim is also repetitive. La.C.Cr.P. art. 930.4(A).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as. set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive ^application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. William C. SCHULTZ v. STATE of Louisiana
    No. 2016-KH-0792
    Supreme Court of Louisiana.
    09/06/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY

PER CURIAM:

11 Denied. Relator fails to show that the district court abused its discretion when it dismissed his claims as repetitive and/or successive. See La.C.Cr.P. art. 930.4; cf. State ex rel Rice v. State, 99-0496 (La. 11/12/99), 749 So.2d 650.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P, art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Angelo D. GOLATT v. STATE of Louisiana
    No. 2016-KH-0702
    Supreme Court of Louisiana.
    9/6/2017
   ON SUPERVISORY WRITS TO THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES

PER CURIAM:

| denied. Relator fails to show he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his related involuntary guilty plea claim, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art, 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his [¿right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant the writ.


text:
    STATE EX REL. Louis CLARK v. STATE of Louisiana
    No. 2016-KH-0285
    Supreme Court of Louisiana.
    09/06/2017
   ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE

PER CURIAM:

| /WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. James BUNCH v. STATE of Louisiana
    No. 2016-KH-0168
    Supreme Court of Louisiana.
    09/06/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

| ¶ Writ not considered. Petitioner has not shown that he filed in the district court before filing in this Court. Cf. Segura v. Frank, 93-1271 (La. 1/14/94), 630 So.2d 714, 725 (“[Ajppellate courts will not consider issues raised for the first time” in appellate court).


text:
    IN RE: Elbert Lee GUILLORY
    NO. 2017-B-1128
    Supreme Court of Louisiana.
    09/06/2017
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM

| Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which respondent acknowledges that he neglected his client’s legal matter. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Elbert Lee Guillory, Louisiana Bar Roll number 17622, be and he hereby is publicly reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    IN RE: Alvin A. JOHNSON, Jr.
    NO. 2017-B-1011
    Supreme Court of Louisiana.
    09/06/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Avin A. Johnson, Jr., an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed two sets of formal charges against respondent under disciplinary board docket numbers 15-DB-032 and 16-DB-061. Respondent did not answer the first set of formal charges, and the factual allegations containéd therein were deemed admitted.- Thereafter, rer-spondent admitted- to the allegations of misconduct in a written submission to the disciplinary board. Respondent' answered the second set of formal charges, admitting to the allegation of misconduct. The matters were considered by separate hearing committees before being consolidated by order of the disciplinary board. The board then filed in this court a single recommendation of discipline encompassing both sets of formal charges.

15-PB-032

By way of background, Deveallion Dean was incarcerated on November 5, 2011 when his father passed away. Mr. Dean was a beneficiary of at least one of his father’s insurance policies. Mr. Dean’s sister, Denise Jackson, received a $2,004 disbursement from the policy made payable to Mr. Dean.

lain June 2012, Ms. Jackson hired respondent at the rate of $200 per hour to ensure that Mr. Dean received the funds designated for him. At that time, she paid respondent $200. Respondent visited Mr. Dean in prison, and they agreed on the $200 per hour fee. They also agreed that respondent would investigate any other insurance policies and/or retirement funds •held by his father where he might have been named as a beneficiary. Mr. Dean endorsed the $2,004 check, and respondent deposited $300 into Mr. Dean’s commissary account, Respondent agreed to make regular $300 deposits into the commissary account until he had disbursed the total amount due to Mr, Dean.

Respondent identified other insurance policies and investigated Mr. Déan’s interest in them. By respondent’s calculation, he worked six hours on Mr. Dean’s matter and collected a total of $1,104. Respondent also claimed to have’ deposited a total of $900 into Mr. Dean’s commissary account, However, a review of the commissary account indicated that respondent made three deposits totaling only $594. Respondent failed to respond to the ODC’s request that he account for the balance of the funds due to Mr. Dean, He also failed to produce bank' records indicating the funds were deposited into his client trust account.

Respondent made restitution to Mr. Dean in the amount of $1,410 via a cashier’s check dated February 19,2016.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a) (safekeeping property of clients or third persons), 1.15(d) (failure to timely remit funds to a client or third person), 1.16(d) (obligations upon termination of the representation), and 8.4(a) (violation of the Rules of Professional Conduct).

Is As previously noted, respondent failed to answer the formal charges in 15-DB-032. Accordingly, the factual allegations contained theréin were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. In response, respondent admitted to the misconduct and filed three exhibits for the committee’s consideration.

Hearing Committee Report

Acknowledging' that the factual allegations of the formal charges were deemed admitted and that respondent admitted engaging in misconduct as alleged, the hearing committee made these additional factual findings: Respondent received client trust funds of at least $3,308. Only $594 was deposited into Mr. Dean’s commissary account. Respondent misrepresented the amount he sent to Mr, Dean, claiming to have sent $900 when the record reflects he only sent $594. Respondent acknowledged that he only worked six hours at $200 an hour. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee then determined that respondent intentionally violated duties owed to his client, the legal system, and the legal profession. Respondent caused actual harm, which is' still ongoing. The committee determined that the baseline sanction is a suspension for one year or less based on the ABA’s Standards for Imposing Lawyer Sanctions and relevant case law.

In aggravation, the committee found bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability ■ of the victim, and indifference to making | ¿restitution. The committee did not address 'whether any mitigating factors were present.

In light of the above, the committee recommended respondent be suspended from the practice of law for one year, with all but six mónths deferred, contingent on respondent paying Mr, Dean restitution in the amount of $2,7Í4. The committee additionally recommended that respondent be required to attend two credit hours of continuing legal education on managing a client trust account.

Respondent objected to the committee’s recommended sanction, arguing that a more lenient sanction is appropriate.

16-DB-0061

On July 24, 2015, the ODC received notice that respondent’s client trust account was overdrawn. At the time a $1,684 check was presented for payment against the account, the balance in the account was only $1,539, and the check was returned due to insufficient funds in the account. Respondent explained that the overdraft occurred because he deposited $12,000 into the account and made withdrawals before the funds were credited to the account. Respondent also admitted, and his account bank statements indicated, that he made multiple cash withdrawals from his client trust account between April 1, 2015 and July 31, 2015.

The ODC alleged respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15(a)(b)(f) (safekeeping property of clients and third persons) and 8.4(a).

As previously noted, respondent answered the formal charges, admitting to the misconduct.

| kFormal Hearing

The matter proceeded to a formal hearing, which was conducted by the hearing committee in November 2016. The ODC introduced documentary evidence, and respondent was the only witness to testify before the committee.

Hearing Committee Report

After considering the testimony and evidence presented at the hearing, the hearing committee found that respondent made a $12,000 deposit, related to a client’s lawsuit, into his client trust account on July 15, 2015. That same day, respondent disbursed funds to the client and the client’s medical provider. He also disbursed $2,580 to himself in cash as his attorney’s fees. The overdraft occurred because the funds from the $12,000 deposit were not credited to the account until the next day. Between April 27, 2015 and July 8, 2015, respondent withdrew cash from the account to pay his attorney’s fees related to three other client settlements. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges. Additionally, the committee determined respondent violated Rules 1.15(d) and 1.16(d) of the Rules of Professional Conduct.

The committee further determined that respondent did not willfully intend to violate the Rules of Professional Conduct. Instead, respondent’s actions resulted from inexperience in law office management and negligence. His clients suffered little if any harm. Furthermore, respondent took corrective action immediately upon being notified of the issue. Therefore, no restitution is necessary.

Under these circumstances, the committee recommended respondent be suspended from the practice of law for three months, fully deferred, subject to him undergoing formal training with a Louisiana State Bar Association (“LSBA”) [ (¡program or class for law office management and for client trust accounting. The committee further recommended that respondent enlist the aid of a mentor, in the form of an experienced practitioner in the areas of criminal law and personal injury law, for a period of at least one year.

Neither respondent nor the ODC filed an objection to the hearing committee’s report and recommendation.

15-DB-032 c/w 16-DB-061

Disciplinary Board Recommendation

After reviewing these consolidated matters, the disciplinary board acknowledged that the factual allegations of the formal charges in 15-DB-032 were deemed admitted and proven. The board also determined that the hearing committee’s additional findings in 15-DB-032 are supported by the record with one exception. The board was unsure how the committee came to the conclusion that respondent received $3,308 in funds on Mr. Dean’s behalf because there .is no evidence in the record or allegation that respondent received any funds other than the $2,004 on Mr. Dean’s behalf. The evidence shows Mr. Dean was entitled to an additional $1,250 from a separate life insurance policy, but there is no evidence or allegation that respondent received those funds on Mr. Dean’s behalf. Therefore, because respondent issued a cashier’s check to Mr. Dean in the amount of $1,410, which is the balance of the $2,004, restitution has been paid. Furthermore, because of this restitution payment, respondent has foregone his attorney’s fees earned from his representation of Mr. Dean. The board then determined that the committee’s findings in 16-DB-061 do not appear to be manifestly erroneous and are supported by the record.

Based on these findings, the board determined that, in 15-DB-032, the committee’s legal conclusions are supported by the factual allegations asserted in |7the formal charges and/or by the evidence submitted in support of the allegations. In 16-DB-061, the board determined that the ODC did not charge respondent with violating Rules 1.15(d) and 1.16(d); thus, the board disregarded the committee’s conclusions regarding those two rule violations because respondent did not have notice to defend against those violations. With respect to the remaining rules, the board determined that the record supports the committee’s conclusion that respondent violated those rules.

The board then determined that, in 15-DB-032, respondent violated a duty owed to his client and that Mr. Dean suffered actual harm. However, the board also noted that respondent has since paid Mr. Dean all of the money he was owed and then some since respondent did not take out any attorney’s fees despite the fact that there was no dispute over his fee. In 16-DB-061, the board determined respondent violated a duty owed to his clients by mismanaging his client trust account. While there was no clear harm caused by respondent’s conduct, his mismanagement created the potential for harm to multiple clients and third parties. In both matters, the board determined respondent acted negligently. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the baseline sanction is suspension.

In aggravation, the board found only the vulnerability of Mr. Dean. In mitigation, the board found the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, inexperience in the (private) practice of law, and remorse.

Turning to the issue of an appropriate sanction, the board took guidance from three cases: In re: Wilson, 12-0579 (La. 6/15/12), 90 So.3d 1018; In re: Spears, 11-1135 (9/2/11), 72 So.3d 819; and In re: Alex, 02-1289 (La. 1/14/03), 835 So.2d 455. In Wilson, an attorney grossly mismanaged her client trust account by failing |sto deposit advanced costs and other client funds into the account, by commingling her funds with client funds by regularly leaving her attorney’s fees in the account, by allowing the balance of the account to drop below the amount she was holding for clients and third parties, and by failing to promptly deliver to a third party funds withheld from her clients’ settlements for medical treatment. For this misconduct, the court suspended the attorney from the practice of law for one year and one day, fully deferred, subject to two years of supervised probation with conditions. In Spears, an attorney failed to maintain adequate records of his client trust account for several months, commingled his funds with those of his clients by leaving his attorney’s fees in his client trust account for extended periods of time and by transferring funds to the account from his personal.and operating accounts, and converted client and/or third-party funds when he allowed his client trust account to become overdrawn. For this misconduct, the court suspended the attorney from the practice of law for one year and one day, fully deferred, subject to two years of supervised probation with conditions. Finally, in Alex, an attorney failed to timely provide payment to two health care providers and commingled and converted client and third-party funds over a. period of almost three and a half years through her gross mismanagement of her financial affairs relative to her law practice. 'For this misconduct, the court suspended the attorney from the practice of law for thirteen months, fully deferred, subject to two years of supervised probation with conditions.

After noting that respondent’s misconduct appears to stem from his inexperience in the private practice of law and after considering the above jurisprudence addressing similar misconduct, the-board recommended respondent be suspended from the practice of law for one year and one day, fully deferred, subject to two years of supervised probation with the following conditions: (1) Respondent shall attend the LSBA Trust Accounting School and Law Practice Management ^School, and (2) respondent shall have a CPA review his trust account on a quarterly basis and file a report with the ODC.

One board member dissented and would recommend a more lenient sanction with various educational requirements.

Neither respondent nor the ODC filed an objection to the disciplinary board’s report and recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5,(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether, the alleged misconduct has been proven- by clear and convincing evidence. In re: Banks, 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way ‘by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La. 11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La. 3/11/94), 633 So.2d 150.

The evidence in the record of this matter supports a finding that respondent failed to timely remit funds owed to a client, failed to account for funds belonging to a client, allowed his client trust account to become overdrawn, and took cash withdrawals from his client trust account. This conduct amounts to a violation of the Rules of Professional Conduct as charged in both sets''of formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed,to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La. 1984).

The record also supports a finding that respondent negligently violated duties owed to his clients, causing potential and actual harm. The aggravating and mitigating factors found by the disciplinary board are supported by the record. The baseline sanction for this type of misconduct is suspension.

In recommending a sanction, the board cited three cases addressing misconduct similar to the misconduct engaged in by respondent. We agree that those cases, In re: Wilson, 12-0579 (La. 6/15/12), 90 So.3d 1018; In re: Spears, 11-1135 (9/2/11), 72 So.3d 819; and In re: Alex, 02-1289 (La. 1/14/03), 835 So.2d 455, provide guidance here, and they indicate that the appropriate sanction is a fully deferred suspension with a period of probation.

Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for one year and one day, fully deferred, subject to two years of supervised probation with the following conditions: (1) Respondent shall attend the LSBA Trust Accounting School and Law Practice Management School, and (2) respondent shall have a CPA review his trust account on a quarterly basis and file a report with the ODC.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that Alvin Johnson, Jr., Louisiana Bar Roll number 30265, be and he hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that this suspension shall be deferred in its entirety and that respondent shall be placed on ^supervised probation for a period of two years, subject to the conditions recommended by the disciplinary board. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Apparently, $300 was the daily limit on deposits tp the account.

      . As noted above, respondent has already paid Mr. Dean $1,410 in restitution.


author: Hughes, J.,

text:
    ROVER GROUP, INC. v. Dr. Gary CLARK, Jarvis Antwine, Terry Bonnie, Ernest Leblanc, Jr., Kashi Sherman, Harry Johnson, Individually and as Members, Directors or Officers of “New Community Association for the Welfare of School Children, Inc.”, and G. Thomas Arbour, W.T. Winfield, Aarolyn Wheeler, and the Community Association for the Welfare of School Children
    2017-CC-1336
    Supreme Court of Louisiana.
    09/06/2017
   ON SUPERVISORY WRITS TO THE 19th JUDICIAL. DISTRICT COURT, PARISH OF EAST BATON ROUGE

Stay denied. Writ denied.

Hughes, J.,

additionally concurs with reasons.

_JjI concur in the writ denial. Applicant does not provide a copy of Rover’s petition which would show by what authority it is alleged the lease was signed on behalf of Community. The proper procedural vehicle to resolve the evidentiary issues involved is a motion for summary judgment.


text:
    STATE EX REL. Robert L. WHITAKER v. STATE of Louisiana
    No. 2016-KH-0790
    Supreme Court of Louisiana.
    09/06/2017
   ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE

PER CURIAM:

| denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated three applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Barton S. BERTHELOT v. STATE of Louisiana
    No. 2016-KH-0731
    Supreme Court of Louisiana.
    09/06/2017
   ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ASCENSION

PER CURIAM:

| denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive and/or successive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas .relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Jerome GIBSON v. STATE of Louisiana
    No. 2016-KH-0712
    Supreme Court of Louisiana.
    09/06/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

11 Denied. Construing relator’s pleading as a bona fide motion to correct an illegal sentence, in accordance with its caption, the district court did not err in denying it because relator identifies no illegal term in his sentence. Cf. La.C.Cr.P. art. 882.

In the alternative, construing the pleading as an application for post-conviction relief, see La.C.Cr.P. art. 924(1) (“An ‘application for post conviction relief means a petition filed by a person in custody after sentence following conviction for the commission of an offense seeking to have the conviction and sentence set aside.”), it was correctly denied. Relator’s sentencing claims are not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. The application is also repetitive. La.C.Cr.P. art. 930.4.

Moreover, relator has previously exhausted his right to state collateral review. See State ex rel. Gibson v. State, 15-1857 (La. 11/29/16), 207 So.3d 396.


author: PER CURIAM;

text:
    STATE EX REL. Gregory J. REAUX v. STATE of Louisiana
    No. 2016-KH-0701
    Supreme Court of Louisiana.
    09/06/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY

PER CURIAM;

Denied. Relator has previously exhausted his right to state collateral review. See State v. Reaux, 15-1292 (La. 9/6/16), 204 So.3d 200.


text:
    IN RE: CONFIDENTIAL PARTY
    NO. 2017-B-0701
    Supreme Court of Louisiana.
    09/06/2017
   ORDER

Considering the Joint Petition for Consent Discipline filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that the Joint Petition for Consent Discipline be and hereby is rejected pursuant to Supreme Court Rule XIX, § 20.

IT IS FURTHER ORDERED that this matter be remanded for consideration of the previously filed formal charges.

Hughes, J., would accept the joint petition for consent discipline. '