author: WICKER, J.

text:
    STATE of Louisiana v. Benjamin ANDERSON
    NO. 16-KA-537
    Court of Appeal of Louisiana, Fifth Circuit.
    May 17, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux

      COUNSEL FOR DEFENDANT/APPELLANT, BENJAMIN ANDERSON, Lieu T. Vo Clark
    Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
   WICKER, J.

11After filing an application for post-conviction relief, defendant, Benjamin Anderson, received leave to file this out-of-time appeal after pleading guilty to eight counts of monetary instrument abuse in violation of La. R.S. 14:72.2, to six counts of theft of U.S. currency valued over $750 and under $5,000 in violation of La. R.S. 14:67, and to seven counts of bank fraud in violation of La. R.S. 14:71.1. Defendant’s appointed counsel has filed an appellate brief pursuant to Anders v. California and has further filed a motion to withdraw as counsel of record. Defendant has not submitted a pro se supplemental brief. For the following reasons, we grant defense counsel’s motion to withdraw and affirm -defendant’s convictions. Because we find the district court imposed an indeterminate sentence, we vacate defendant’s sentences and remand for resentencing in a manner consistent with this opinion.

STATEMENT OF THE CASE

On November 4, 2015, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant with eight counts of monetary instrument abuse in violation of La. R.S. 14:72.2 (counts one, two, seven, nine, ten, nineteen, twenty, and twenty-two), with seven counts of theft of U.S. currency “valued at over $750 under $1,500” in violation of La. R.S. 14:67 (counts three, four, thirteen, fourteen, seventeen, eighteen, and twenty-one), and with seven counts of bank fraud in violation of La. R.S. 14:71.1 (counts five, six, eight, eleven, twelve, fifteen, and sixteen). The bill alleged (1) that counts one through six occurred on July 23, 2015, (2) that counts seven and eight occurred on August 25, 2015, (3) that counts nine through fourteen occurred on August 15, 2015, (4) that counts fifteen through twenty occurred September 28, 2015, and (5) that counts twenty-one and, twenty-two occurred on June 3, 2015. On January 13, 2016, defendant appeared for his arraignment and pled not guilty to these charges.

On March 1, 2016, the State amended the bill of information in open court, reducing count three to a misdemeanor charge of theft óf U.S. currency valued under $750 and correcting a typographical error with respect to counts four, thirteen, fourteen, seventeen, eighteen, and twenty-one such that these counts properly reflected the offense set forth in La. R.S. 14:67(3), involving theft of a value $750 or more, but less than the value of $5,000'. During this March 1, 2016 hearing, defendant withdrew his pleas of not guilty and pled guilty to all offenses charged in the amended bill of information. The record reflects that defendant’s guilty pleas were pursuant to a plea agreement. According to defendant’s Acknowledgment and Waiver of Constitutional Rights form which was signed by the defendant, the State, and the district court, defendant indicated that he understood his sentence would be as follows:

5 years and to be eligible for any and all self-help programs. And to be given credit for all time served. All sentences are to be run concurrent. Pay restitution in the amount of $8,045.77.

At this same hearing, the district court sentenced defendant, as follows:

Having waived all legal delays regarding sentencing, at this time, Mr. Anderson with regard to counts 1, 2, 4, 5, 6, 7, 8, 9, 10,11,12,13,14, 15, 16,17,18, 19; 20,"21 and 22 that’s every charge except for the misdemeanor. With regard to -all those counts, sir, the Court sentences you to five years in Department of Corrections and a $500 fine, plus court costs, as well as, restitution.. .in the amount of $8,045.77....
With regard to Count 3, that is the misdemeanor charge the Court sentences you to six months parish prison and a $250 fíne, plus court costs with regard to that charge or I should say with regard to each count they shall run concurrent with one another, including the misdemeanor charge. The restitution shall also be concurrent on each count.

|aThe. district court also gave defendant credit for time served. Immediately thereafter, the State filed a multiple bill of information, alleging defendant to be a second time offender who previously pled guilty to one felony count of tampering with a governmental record with the intent to defraud or harm in, violation of Texas Penal Code § 37.10 on September 23, 2013. Defendant pled guilty to the multiple bill, and the district court sentenced defendant, as follows:

Having waived all legal delays regarding sentencing at this time, Mr. Anderson, the Court will vacate its sentence previously issued to you on Case No. 15-6338 as to Count 1 only and resentence you as a second felony offender pursuant to Louisiana Revised Statute 15:529.1 to five years in Department of Corrections without the benefit of probation or suspension of sentence, a $500 fine, plus .court costs and restitution in the amount of $8,045.77. That sentence as a second offender on Count 1 is to run concurrent with the sentence I previously gave you oh the remaining counts of Case No. 15-6388.

The district court once again gave defendant credit for time served.

According to the district court, defendant filed an application for post-conviction relief on August 2, 2016. Therein, defendant argued that his multiple bill sentence was excessive and that he was denied the effective assistance of counsel because his attorney did not inform him that this sentence was excessive. On August 8, 2016, the district court granted defendant leave to file an out-of-time appeal and dismissed his application for post-conviction relief without prejudice.

FACTS

. Defendant pled guilty without proceeding to a full trial, and the underlying facts are not fully developed in the record. According to the probable cause affidavit,

The-above suspect went to the business of Southern Coins & Precious Metals 4513 Zenith Street Metairie La. 70001 and attempted to sell a gold chain for scrap. The employee’s [sic] of the business recognized him as a suspect who came in on July 24, 2015 and sold a gold chain for $23.52[. H]e was issued a check from their bank account to the name of the ID he provided on that date, Chester Brown, A short while later he came back to the store and returned the check and asked Lfor his chain back and .returned the check he was issued. The checking account was later compromised with counterfeit checks [sic] one was cashed by Chester Brown.in the amount of $223.52 at 7124 Veterans Blvd. in Metairie. Another check for $876,48 at 701 Metairie Rd..was made payable to Volain Ricky [sic] the suspect made a statement to Sergeant Stanley Brown that he also cashed that check but the ID card he used was taken by [sic]. The suspect was found -to be in possession of a Ohio Driver’s License bearing the name Nathan Reese and the above suspects [sic] photograph. Investigators also obtained a photo copy of a driver’s license used at the business of Causeway Coin and it was the same copy that Southern Coins & Precious Metals had from the July 24th incident in the name of Chester Brown. Investigators are aware of numerous other cases at other local businesses in which the suspect committed the crime using the same mo-dus operandi. Investigators are waiting for additional information on those cases so that an arrest can be made.

ANDERS BRIEF

Under the procedure this Court adopted in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, defendant’s appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

In Anders, the United States Supreme Court determined that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after, a conscientious examination of it. In Jyles, the Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” 704 So.2d at 241.

When counsel files an Anders brief, an appellate court reviews (1) the bill of information, to insure that the defendant was properly charged, (2) all minute | sentries, to insure that the defendant was present at all crucial stages, (3) all pleadings in the record, and (4) all transcripts, to determine whether any ruling provides an arguable basis for appeal. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly frivolous. Bradford, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

Defendant’s appellate counsel asserts that, after a detailed review of the record, she can find no non-frivolous issues to raise on appeal. Appellate counsel asserts that before defendant changed his plea from not guilty to guilty, he was fully informed of the legal consequences of doing so both by his trial counsel and by the district court. While appellate counsel notes that standard motions were filed, she also notes the record does not reflect that either the State or defendant .posed any objections that would, support, a decision from this Court to reject defendant’s guilty plea. Further, appellate counsel asserts that in addition to the extensive waiver and plea form filled out by defendant and his trial attorney, an examination of the plea colloquy reveals that the district court was thorough in explaining and making sure defendant understood the rights he was waiving by pleading guilty. Appellate counsel states that the district court informed defendant of the sentencing ranges for the offenses for which he was charged. Further, appellate counsel states that the district court conducted another colloquy regarding the multiple offender bill waiver of rights form, informing him of his right to a | ^hearing and the sentencing range under the multiple offender bill. Because defendant’s appellate counsel can find no non-frivolous issue for appeal, counsel requests that this Court grant her motion to withdraw.

The State agrees and urges this Court to grant defense counsel’s request to withdraw as counsel of record.

This Court sent defendant a letter by certified mail informing him that appellate counsel had filed an Anders brief in this case and that he had until November 11, 2016, to file a pro se supplemental brief. Because of confusion as to whether or not defendant had received the record in sufficient time to prepare his pro se supplemental brief, this Court granted defendant several extensions of time to file his brief. Nevertheless, defendant failed to file a pro se supplemental brief in this case.

An independent review of the record supports defense counsel’s assertion that there are no non-frivolous issues concerning defendant’s convictions.

First, the bill of information properly charged defendant, plainly and concisely stated the essential facts constituting the offenses charged, and sufficiently identified defendant and the crimes charged. See La. C.Cr.P. arts. 463-466.

Further, the minute entries reflect that defendant and his counsel appeared at all crucial stages of the proceedings against him. The record reflects defendant was present at his arraignment and at the March 1, 2016 hearing at which the district court received defendant’s guilty pleas, conducted the multiple offender proceeding, including his stipulation and enhanced sentencing, and sentenced defendant on all counts. Accordingly, we find no appealable issues surrounding defendant’s presence.

Additionally, defendant pled guilty in this case and stipulated to being a second felony offender as alleged in the multiple bill. Generally when a defendant 17pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, which precludes review of such defects either by appeal or post-conviction relief. State v. Turner, 09-1079 (La.App. 5 Cir. 7/27/10), 47 So.3d 465, 459. Further, an unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing. State v. Schaefer, 97-465 (La.App. 5 Cir. 11/25/97), 704 So.2d 300, 304. Here, defendant entered an unqualified guilty plea, and therefore, it appears that all non-jurisdictional defects were waived. No rulings were preserved for appeal under the holding in State v. Crosby, 338 So.2d 584, 588 (La. 1976).

Our review of the record indicates that defendant filed pre-trial motions, including motions to suppress identification, evidence, and confession, and it does not appear the district court ruled on these motions prior to the time defendant entered his guilty plea. Because defendant did not object to the district court’s failure to hear or rule on his pre-trial motions prior to the entry of his guilty plea, we find defendant waived the motions. See State v. Corzo, 04-791 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm when it is not entered freely and voluntarily, when the Boykin colloquy is inadequate, or when á defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that plea bargain is not kept. Id.

IsA review of the record reveals no constitutional infirmity in defendant’s guilty pleas to the underlying charges. First, despite an error made by the district court when reciting the charges during the plea colloquy, we find, defendant’s guilty pleas were entered freely and voluntarily. In conducting the plea colloquy with defendant, the district court misspoke when describing the number of counts with which defendant was charged and to which defendant would plead guilty. The amended bill of information charged defendant with eight counts of monetary instrument abuse in violation of La. R.S. 14:72.2, with six counts of theft of a value over $750 and under $5,000 in violation of La. R.S. 14:67, and with seven counts of bank fraud in violation of La. R.S. 14:71.1. At the hearing, however, -the district court asked defendant whether he understood that he was pleading guilty to six counts of monetary instrument abuse, seven counts of theft, and seven counts of bank fraud. Defendant answered affirmatively that he understood. Nevertheless, we find that defendant knowingly and voluntarily pled guilty to the counts charged in the amended bill of information.' Prior to the plea colloquy, defendant executed an Acknowledgment and Waiver of Constitutional Rights form—signed by defendant, defense counsel, and the district court—on which defendant wrote by hand that he was pleading guilty to the following crimes: “14:72.2 monetary instrument abuse (x8), 14:67 theft (x6), and 14:71.1 bank fraud (x7).” At the plea colloquy, the district court refer--enced this Acknowledgment and Waiver of Constitutional Rights form, questioning defendant as to whether he understood the concepts contained in the form and had signed the form at the bottom. Defendant responded affirmatively to both questions. We find that this constitutes a sufficient affirmative showing that, prior to the plea colloquy, defendant understood the nature and number of counts to which he intended to plead. See State v. Dunn, 390 So.2d 525, 527 (La. 1980). Thus, the district court’s technical error in miscounting the number of offenses during the plea colloquy did not affect defendant’s ^substantial rights because, as to entering his plea, defendant acknowledged both the number and nature of the charged offenses on the waiver of rights form. See State v. Ursin, 98-435 (La.App. 5 Cir. 10/28/98), 720 So.2d 1248, 1250. This error was harmless.

Further,.we find that the district court properly advised defendant of his rights under Boykin and defendant knowingly and voluntarily waived those rights. A valid guilty plea under Boykin requires only that a defendant be informed of his constitutional rights against' self-incrimination, to a trial by jury, and to confront his accusers. State v. Cummings, 10-891 (La.App. 5 Cir. 10/25/11), 79 So.3d 386, 402 (citing State v. Nuccio, 454 So.2d 93, 104 (La. 1984)). An examination of the hearing transcript reflects the district court properly informed defendant of these rights as well as his right to representation at every stage of the proceedings. Defendant indicated to the court that he understood that he had these rights and that he was waiving them by pleading guilty. Moreover, the Acknowledgment and Waiver of Rights form defendant signed also reflects that defendant was advised of these rights and that he understood them. During his guilty plea colloquy and in his Acknowledgment and Waiver of Rights form, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty pleas. Defendant also acknowledged both in open court and in the waiver of rights form that his guilty pleas could be used to enhance a penalty for any future conviction. Defendant was also informed during the colloquy, and in the waiver of rights form, of the maximum sentences and of the actual sentences that would be imposed if his guilty pleas were accepted. After the colloquy with defendant, the trial court accepted defendant’s pleas as knowingly, intelligently, freely, and voluntarily made.

La. C.Cr.P. art. 556.1(A)(1) requires that the district court “shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally | min open court and informing him of, and determining that he understands. . .[t]he- nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” Although the district court informed defendant of the maximum sentences he faced, the district court did not inform defendant of the mandatory minimum penalty he faced under La. R.S. 14:72.2. Moreover, the district court also did not expressly disclose the plea agreement in open court as required by La. C.Cr.P. art. 556.1(C). However, a violation of La. C.Cr.P. art. 556.1, which does not rise to the level of a Boykin violation, is subject to “harmless error” analysis. State v. Williams, 12-299 (La.App. 5 Cir. 12/11/12), 106 So.3d 1068, 1074. Here, we do not find issues sufficient to support an appeal. See State v. Otkins, 11-563 (La. App. 5 Cir. 12/13/11), 81 So.3d 150, 154. The Louisiana Supreme Court has clearly held that the core Boykin constitutional requirements have never been extended to include advice with respect to sentencing. Id. Moreover, in determining whether a violation of Article 556.1 is harmless, the inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty. Id. In thé present case, the record shows defendant conferred with his attorney before entering his guilty pleas and was cleaWy advised of the actual sentences he would receive by pleading guilty. Nothing in the record suggests that defendant would have changed his plea based on the mandatory minimum sentence he faced for his violations of La. R.S. 14:72.2. Accordingly, we find these technical violations of La. C.Cr.P. art. 556.1 to be harmless.

As previously mentioned, the district court did not expressly disclose defendant’s plea agreement in open court. The record reflects defendant fully understood the consequences of pleading guilty and the sentences the State agreed lnhe would receive. However, during the- plea colloquy and prior to pleading guilty* defendant indicated that he had executed the Acknowledgment and Waiver of Constitutional Rights form and the Felony Conditions of Probation form. These forms—with each term of .defendant’s proposed sentences initialed by defendant—together indicate that defendant understood the actual sentences to which he and the State agreed, and they constitute a sufficient affirmative showing of defendant’s express and knowing waiver. See Dunn, 390 So.2d at 527. At this juncture, we cannot discern any constitutional infirmity with defendant’s guilty pleas.

Our review of the record reflects that the district court failed to recite a factual basis in the record for defendant’s guilty pleas. “[T]he due process clause imposes no constitutional duty on state trial judges to ascertain a factual basis prior to accepting a guilty plea. Louisiana law, unlike [federal law] has no statutory provision requiring accompaniment of a guilty plea by the recitation of a factual basis.” State v. Smith, 09-769 (La.App. 5 Cir. 3/9/10), 38 So.3d 894, 896 n.1, writ denied, 10-843 (La. 11/5/10), 50 So.3d 812. Due process requires a factual basis for a defendant’s guilty plea only when a defendant proclaimed his innocence or when the trial court was otherwise put on notice that there was a need for an inquiry into the factual basis. Id. Here, defendant has not proclaimed his innocence, and the trial court was not put on notice that there was a need for a factual basis. Accordingly, we find no reversible error.

|12A review of the record also reveals no constitutional infirmity in defendant’s stipulation to the multiple bill. An unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the state failed to produce sufficient proof at the multiple offender hearing. See State v. Schaefer, 97-465 (La.App. 5 Cir. 11/25/97), 704 So.2d 300, 304. The Multiple Offender Waiver of Constitutional Rights form, which defendant executed in conjunction with the multiple bill plea colloquy, indicates that defendant was advised of his right to a hearing at which the State would have to prove his multiple offender status and of his right to remain silent throughout the hearing. The district court also informed defendant of these rights at the hearing. Both during the multiple bill plea colloquy and on the Multiple Offender Waiver of Constitutional Rights form, defendant was also advised of the potential sentencing range of “not less than five years, no more than 20 years in the Department of Corrections” as a second felony offender. On the Multiple Offender Waiver of Constitutional Rights form, defendant indicated that the actual sentence that would be imposed was “five years without benefits to run concurrent.” The Multiple Offender Waiver of Constitutional Rights form also indicates that defendant was satisfied with his attorney and the trial judge’s efforts to explain the rights he was waiving and the consequences of the guilty pleas and that he had not been forced, threatened, or coerced into stipulating to the multiple bill. After conducting the plea colloquy, the district court accepted his stipulation to the multiple bill as knowingly, intelligently, freely, and voluntarily made by defendant. We find no error in this determination.

Defendant’s appellate counsel submits that defendant’s sentences are not subject to review on appeal. La. C.Cr.P. art. 881.2(A)(2) provides that “[t]he defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” | ^However, as we will discuss below, there are errors patent concerning the legality of defendant’s sentence. See State v. Gottke, 14-769 (La.App. 3 Cir. 12/17/14), 154 So.3d 1250, 1255; State v. Cabanas, 552 So.2d 1040, 1046 (La. App. 1 Cir. 1989) (“Notwithstanding that defendant’s sentence may have been negotiated pursuant to a plea bargain, in imposing sentence ..., the trial court imposed an illegal, indeterminate sentence.... Regardless of whether or not the sentence was negotiated pursuant to a plea bargain, this matter must be remanded to the trial court for resentencing to correct the illegal sentence .... ”).

ERRORS PATENT

Although defense counsel’s brief requests an errors patent review, this Court routinely reviews the record for errors patent in accordance with La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990), regardless of whether defendant makes such a request.

Our independent review of the record has revealed an error with respect to defendant’s sentences. After examining the commitment and the transcript of defendant’s sentencing, we find that defendant’s sentences on counts one, two, and four through twenty-two are indeterminate in violation of La. C.Cr.P. art. 879. At defendant’s sentencing hearing, the district court summarily sentenced defendant on eight counts of monetary instrument abuse in violation of La. R.S. 14:72.2 (counts one, two, seven, nine, ten, nineteen, twenty, and twenty-two), on six counts of theft in violation of La. R.S. 14:67 (counts four, thirteen, fourteen, seventeen, eighteen, and twenty-one), and on seven counts of bank fraud in violation of La. R.S. 14:71.1 (counts five, six, eight, eleven, twelve, fifteen, and sixteen) to “five years in Department of Corrections and a $500 fine, plus court costs, as well as restitution.” The court then specified that the total amount of restitution “to all the litigants” was $8,045.77. In sentencing defendant on count three, a misdemeanor charge, the district court sought to clarify defendant’s sentences: “I should say with 114regard to each count they shall run concurrent with one another, including the misdemeanor charge. The restitution shall also be concurrent on each count.” The commitment reflects that the district court imposed a single $500 fine and restitution in the amount of $8,045.77 but it does not specify the count or counts with which the fine and restitution are associated. Thereafter, during the multiple bill colloquy, after accepting defendant’s stipulation that he was a multiple offender, the district court vacated its sentence on count one and resentenced defendant on this count as a second felony offender pursuant to La. R.S. 15:529.1 to “five years in Department of Corrections without benefit of probation or suspension of sentence, a $500 fíne, plus court costs and restitution in the amount of $8,045.77.” The court indicated that this sentence “as a second offender on Count 1 is to run concurrent with the sentence I previously gave you on the remaining counts of Case No. 15-6388.”

The sentences the district court imposed are indeterminate and violate La. C.Cr.P. art. 879 for three reasons. First, with respect to counts two and four through twenty-two, it is not clear whether the district court imposed one sentence for each separate count or only one sentence for all twenty-one counts. A sentencing court must impose a separate sentence for each separate count on which a defendant is convicted. State v. Cambre, 04-1317 (La. App. 5 Cir. 4/26/05), 902 So.2d 473, 485. Next, the offenses to which defendant pled guilty and pursuant to which defendant was sentenced authorize fines in differing amounts. While La. R.S. 14:71.1 provides that the court may impose a fíne of “not more than one hundred thousand dollars” and La. R.S. 14:67 permits the court to impose a fine of “not more than three thousand dollars,” La. R.S. 14:72.2 affords the district court the discretion to impose a fine “not more than one million dollars but not less than 11Bfive thousand dollars.” However, La. R.S. 15:529.1, the multiple offender statute, does not authorize the imposition of a fine but only provides for enhanced sentences relating to the term of imprisonment. State v. Dickerson, 91-1120 (La. 9/6/91), 584 So.2d 1140. From the transcript and from the commitment, it is clear that the district court intended to impose a $500 fine in resentencing defendant on count one as a second felony offender. It is also clear that the district court did not have the power to impose a fine under the multiple offender statute. However, with respect to counts two and four through twenty-two, it is not clear either from the transcript or from the commitment with which of the other count or counts the district court wished to associate a $500 fine. See State v. Gardner, 16-13 (La.App. 5 Cir. 9/8/16), 202 So.3d 513, 517-18 (vacating defendant’s sentences and remanding for clarification because the district court did not specify whether the fine was imposed with respect to count one or count two). Finally, the Louisiana Supreme Court has held that a sentence of restitution is indeterminate if the sentencing court fails to specify the amount of restitution and the count or counts on which restitution is imposed. State v. Fussell, 06-2595 (La. 1/16/08), 974 So.2d 1223, 1239; State v. Williamson, 04-1440 (La. App. 3 Cir. 3/2/05), 896 So.2d 302, 303-05 (finding an order of restitution indeterminate where the court ordered defendant to pay a total amount but where the restitution order did not specify the count or counts on which the restitution was imposed or the amount owed to each of the three victims). Here, the district court failed to specify the count or counts on which restitution was imposed, the amount of restitution imposed on each count, and the amount owed to each victim. Because we find defendant’s sentences on counts one, two, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, and twenty-two to be indeterminate, we vacate these sentences and remand for resentencing on these counts. On remand, we instruct the district court to impose a | ¶ r,separate, individual sentence for each count. See State v. Gibson, 12-350 (La.App. 5 Cir. 10/30/12), 103 So.3d 641, 651-52.

CONCLUSION AND DECREE

In accordance with Anders and Jyles, we have performed a thorough review of the record and have confirmed the statements by counsel. As discussed above, defendant’s sentences are vacated due to the presence of an error patent. Other than this error patent, our review of the record reveals no non-frivolous issues defendant could raise on appeal. Accordingly,- we grant appellate counsel’s motion to withdraw.

For the foregoing reasons, we affirm defendant’s convictions, vacate his sentences, and remand to the district court for resentencing.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED FOR RESENTENCING; MOTION TO WITHDRAW GRANTED.

      . Defendant also entered a guilty plea for one count of misdemeanor theft of U.S. currency valued under $750 in violation of La. R.S. 14:72.2. The proper procedure for seeking review of a misdemeanor is an application for writ of review directed to this Court to exercise its supervisory jurisdiction. La. C.Cr.P. art. 912.1(C); State v. Jones, 12-640 c/w 12-641 (La. App. 5 Cir. 10/30/13), 128 So.3d 436, 441-42. Defendant did not seek review of this misdemeanor conviction. Therefore, this conviction is not before us.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . La. R.S. 14:67 and La. R.S. 14:71.1 do not set forth mandatory minimum penalties.

      . Because we find the district court erred in imposing indeterminate sentences on all counts, we vacate defendant's sentences and remand for resentencing. Generally, our inquiry into whether or not defendant knowingly and voluntarily pled guilty involves an examination of whether defendant was "induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept.” McCoil, 924 So.2d at 1124; State v. Holmes, 475 So.2d 1057, 1059 (La. 1985) ("When the state promises a fixed punishment for certain criminal conduct, and defendant relies on that promise in pleading guilty, the state must fulfill its bargain.”). Because the district court must resentence defendant, it is not clear yet how defendant’s plea agreements will correspond to the sentence he will receive. Accordingly, we reserve for defendant his right to file a motion to withdraw his guilty pleas if he can show constitutional infirmity following resentencing.

      . According to Black's Law Dictionary (10th ed, 2009), the words "concurrent sentences” refer to "[t]wo or more sentences of jail time to be served simultaneously.” The district court's use of the word "concurrent” in the sentencing context with respect to its imposition of fines and restitution adds to the confusion already present,

      . We grant the motion to withdraw despite the remand for resentencing because this defendant' is represented by different counsel at the trial (Indigent Defender's Board) and the appellate (Louisiana Appellate Project) levels, Thus, the district court will appoinit/reappoint counsel for defendant at the resentencing hearing.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    STATE of Louisiana v. Willie B. RIMMER, Jr.
    NO. 16-KA-649
    Court of Appeal of Louisiana, Fifth Circuit.
    May 17, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, WILLIE B. RIMMER, JR., Prentice L. White
    DEFENDANT/APPELLANT, Willie Rimmer, In Proper Person
    Panel composed of Jude G, Gravois, Marc E. Johnson, and Robert A. Chaisson
   CHAISSON, J.

| defendant, Willie B. Rimmer, Jr., appeals his conviction and sentence for driving while intoxicated, third offense. For the reasons that follow, we affirm defendant’s conviction, vacate the sentence, and remand the matter with instructions. We also grant appellate counsel’s motion to withdraw as attorney of record for defendant.

PROCEDURAL HISTORY

On October 9,2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with driving while intoxicated, third offense, in violation of La. R.S. 14:98(A) and 14:98.3(A). At the December 11, 2015 arraignment, defendant pled not guilty. Defendant thereafter filed pre-trial motions, including motions to suppress evidence and statement. On July 1, 2016, the trial court heard and denied defendant’s motions to suppress. The matter proceeded to trial before a six-person jury on July 26, 2016. After considering the evidence presented, the jury found defendant guilty as charged.

Subsequently, on July 29, 2016, the trial court sentenced defendant to five years imprisonment, with four years to be served at hard labor and with one year of the sentence suspended. The trial court placed defendant on active probation for one year upon his release from prison. As conditions of probation, the trial court ordered defendant to complete two hundred forty hours of community service, complete a driver improvement program, obtain employment, and participate in either an evaluation in an inpatient/outpatient substance abuse treatment program or in a court-approved substance abuse program. Defendant was further placed on home incarceration for the term of his probation. In addition, the trial court |2ordered defendant to pay a fine of two thousand dollars. Defendant thereafter filed a motion to reconsider sentence, which was denied. This timely appeal followed.

FACTS

During the early morning hours of July 19, 2015, Sergeant Donald Clogher, a patrol officer with the Jefferson Parish Sheriff s Office, was positioned in a parking lot in the 400 block of Ames Boulevard. As he was attempting to exit the parking lot, he observed a truck traveling at night without its headlights on. Sergeant Clogher waited in the parking lot to give the motorist the opportunity to turn on the headlights; however, he did not. The officer additionally observed that the truck was traveling without its taillights illuminated. At that point, Deputy Clogher exited the parking lot, pulled behind the truck, and initiated a traffic stop.

Sergeant Clogher approached the vehicle and advised the driver, subsequently identified as defendant, that he did not have the headlights illuminated. Defendant debated this fact, exited his truck, and walked to the front of his vehicle to confirm that he did have the lights on. During his interaction with defendant, Sergeant Clogher “noticed that he had some alcohol on his breath” and was “unsteady on his feet.” Based on these observations, Deputy Clogher believed that defendant was intoxicated and asked for his driver’s license. As defendant was retrieving his license, Trooper Jason Bourgeois of the Louisiana State Police pulled up to assist and took over the investigation, as he had more experience and training with handling driving while intoxicated investigations.

As Trooper Bourgeois approached defendant, he smelled “the odor of alcohol coming off of him” and also observed that defendant was “unsteady on his feet” and had slurred speech. Believing that defendant may be impaired, Trooper Bourgeois conducted standardized field sobriety testing. Trooper Bourgeois first administered the horizontal gaze nystagmus test, which defendant “failed with both |seyes.” Specifically, Trooper Bourgeois noted the lack of smooth pursuit in both of defendant’s eyes and the presence of all six indicators of intoxication. Trooper Bourgeois then instructed defendant as to the walk-and-turn test; however, during the instructions, defendant advised the trooper that he did not want to do any more of the tests and to just arrest him. At that point, Trooper Bourgeois advised defendant of his Miranda rights and that he was under arrest for driving while intoxicated.

Trooper Bourgeois transported defendant to the Jefferson Parish Correctional Center, at which time he advised defendant of his rights relating to chemical testing for intoxication. According to Trooper Bourgeois, defendant appeared to understand his rights and thereafter submitted to the Intoxilyzer test. The results of that test registered defendant’s blood alcohol concentration at .221. Trooper Bourgeois then conducted an interview with defendant, in which defendant stated that he was operating a motor vehicle, that he was coming from “the club,” and that he had been drinking.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110, appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed appellate counsel requests permission to withdraw as attorney of record for defendant.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record -to determine whether the appeal |4is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. State v. Bradford, 676 So.2d at 1110.

In this case, defendant’s appellate counsel has complied with the procedures for filing an Anders brief. He detailed the procedural history of the case and set forth the facts as brought put at trial. Further, appellate counsel reviewed the record of the proceedings, including the bill of information, the trial court’s rulings on defendant’s pre-trial motions to suppress, and the sufficiency of the evidence presented at trial. Based on his review of the entire record, appellate counsel concluded that he has found no issues that would support an appeal of defendant’s conviction and sentence.

Along with his brief, defendant’s appellate counsel has filed a motion to withdraw as attorney of record which states that he has prepared an appellate brief in compliance with Anders and that he has notified defendant of the filing of the motion to withdraw as attorney of record and of his right to file a pro sé brief in this matter. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until January 20, 2017, to file a supplemental brief, which deadline was extended to April 6, 2017. Defendant has filed a pro se brief, in which he raises issues relating to the suppression hearing and the sufficiency of the evidence used to convict him.

This Court has performed' an independent review of the appellate record, including the pleadings, minute entries, bill of information, and transcripts. Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the offense charged. It also 1 ^sufficiently identified defendant and the crime charged. See La. C.Cr.P. arts. 463-466. Further, as reflected' by the minute entries, defendant appeared at all crucial stages of the proceedings against him.

With regard to pre-trial motions, our review of the record supports appellate counsels.assessment that the trial court’s rulings on defendant’s motions to suppress evidence and statement do not present any issues for appellate review. At the suppression hearing, defendant argued that the initial stop was illegal; therefore, all resulting evidence, including the Intoxilyzer results should be suppressed. Defendant also argued that he was not properly advised of his rights; thus, any statements he made should be suppressed. After considering the evidence presented at the suppression hearing and the arguments of counsel, the trial court denied defendant’s motions to suppress, finding that there, was probable cause for the traffic stop and that defendant was advised of his Miranda rights. The record supports this determination.

Generally, the decision to stop a vehicle is reasonable when the police have probable cause to believe a traffic violation has occurred. The standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer. Although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants. State v. Harrell, 13-662 (La.App. 5 Cir. 3/26/14), 138 So.3d 721, 726.

With regard to the stop of defendant’s vehicle, the evidence at the suppression hearing reflected that defendant was driving his vehicle at night without the headlights or taillights illuminated. Specifically, Sergeant Clogher testified that he initiated a traffic stop of the truck being driven by defendant because it was traveling at night without headlights or taillights. La. R.S. 32:3031 flrequires headlamps on motor vehicles, and La. R.S. 32:304 requires tail lamps on motor vehicles. La. R.S. 32:301 governs the operation of lights on vehicles and requires that every vehicle upon a highway within this ' state shall display lighted lamps and illuminating devices at any time between sunset and sunrise.

Therefore, defendant’s driving the truck at night without illuminated lights provided the officer with an objective basis, or probable cause, to effect the stop of the vehicle. See State v. Walker, 03-188 (La.App. 5 Cir. 7/29/03), 853 So.2d 61, writ denied, 03-2343 (La. 2/6/04), 865 So.2d 738 (where this Court found that the police clearly had reasonable cause to stop the. defendant’s vehicle because it was being operated without headlights as required by statute) and State v. Harrell, 138 So.3d at 726 (where this Court concluded that an unilluminated headlight gave the deputy an objective basis, or probable cause, to stop the vehicle).

In challenging the validity of the stop at the suppression hearing, defendant focused on the fact that there was no proof, such as a photograph or video, that his lights were not illuminated. However, the lack of this form of evidence is of no consequence; the State presented evidence through the undisputed testimony of Sergeant Clogher that defendant was operating his vehicle at night without the headlights or taillights illuminated. See State v. Gomez, 06-417 (La.App. 5 Cir. 11/28/06), 947 So.2d 81(where this Court found that the initial stop of the defendant was legal based on the officer’s observations of traffic violations, namely that the defendant was driving at night without illumination of his vehicle’s taillights and that defendant was not wearing a seat-belt).

At the suppression hearing, defendant also argued that his statements should be suppressed because he was not advised of his Miranda rights. Defendant particularly focused on the fact that his signature was not on the rights form that was executed prior to the administration of the Intoxilyzer test. The evidence | presented at the suppression hearing does not support defendant’s argument. Trooper Bourgeois testified that as he was giving defendant the instructions for the walk-and-turn test, defendant kept “falling over” and then indicated that he did not wish to continue with the tests. At that point, Trooper Bourgeois arrested defendant and verbally advised him of his Miranda rights. Trooper Bourgeois also testified that defendant acknowledged that he understood his rights. Defendant was again advised of his rights once he was transported to the Jefferson Parish Correctional Center. Trooper Bourgeois testified that prior to administering the Intoxi-lyzer test, he went over the rights form with defendant and advised him of his rights relating to the chemical test. Trooper Bourgeois explained that although he was able to sign the form, because his signature is in the computer system, defendant was unable to sign the electronic form because the pen pad at the correctional center was not working. However, Trooper Bourgeois maintained that defendant verbally advised him that he understood his rights.

Based on the foregoing, we agree with appellate counsel’s assertion that the trial court’s rulings on defendant’s motions to suppress evidence and statement do not present any issues for appellate review.

With regard to the jury trial, the record reflects that both the jury composition and the jury verdict were proper. Additionally, as acknowledged by appellate counsel, the evidence presented at trial was sufficient to support defendant’s conviction for driving while intoxicated, third offense.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a ^reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Reeder, 15-68 (La.App. 5 Cir. 8/25/15), 189 So.3d 401, 406.

Defendant was convicted of driving while intoxicated, third offense. In order to convict an accused of driving while intoxicated, the State must prove that the defendant was operating a vehicle and was under the influence of alcohol or drugs. State v. Cowden, 04-707 (La.App. 5 Cir. 11/30/04), 889 So.2d 1075, 1082, writ denied, 04-3201 (La. 4/8/05), 899 So.2d 2. To convict a defendant of a third offense of driving while intoxicated, the State must also show that the defendant had two other valid convictions for driving while intoxicated. State v. Reeder, 189 So.3d at 407.

In the present case, the evidence presented at trial was clearly sufficient to support defendant’s conviction. Sergeant Clogher testified that on July 19, 2015, he observed a truck traveling at night without the lights illuminated. The officer thereafter pulled the truck over for a traffic violation and determined that the truck was being driven by defendant. During the course of the traffic stop, Sergeant Clo-gher smelled alcohol on defendant’s breath and noticed that he was “unsteady on his feet.” Trooper Bourgeois, who took over the stop upon his arrival at the scene, also smelled alcohol on defendant and observed that defendant was “unsteady on his feet” and had slurred speech.

Based on his observations, Trooper Bourgeois commenced standardized field sobriety testing. Trooper Bourgeois first administered the horizontal gaze nystag-mus test, which defendant “failed with both eyes.” Thereafter, as Trooper Bourgeois instructed defendant on the walk- and-turn test, defendant advised the | ¡itrooper that he did not want to do any more of the tests. Defendant was arrested and brought to the Jefferson Parish Correctional Center, at which time an Intoxi-lyzer test was administered to him. The results of that test showed that defendant had a blood alcohol concentration of .221, a level above the statutory legal limit.

Further, the State presented evidence that defendant had two other valid driving while intoxicated convictions. At trial, the State introduced two certified conviction packets that showed that defendant was convicted on July 25, 2006, of driving while intoxicated, second offense, and on August 3, 2012, of driving while intoxicated, third offense. In addition, Joel O’Lear, a latent fingerprint examiner with the Jefferson Parish Sheriffs Office, testified at trial that he compared defendant’s fingerprints with the fingerprints contained in the two certified conviction packets and concluded that defendant’s fingerprints and the ones contained in the conviction packets were “created by one and the same individual.”

In light of the foregoing, we find that the evidence was sufficient under the Jackson standard to support defendant’s conviction of driving while intoxicated, third offense. Having found no non-frivolous issues for appeal regarding defendant’s conviction based on our review of the record, we now turn our attention to the issues raised by defendant in his supplemental brief.

PRO SE ASSIGNMENTS OF ERROR

In his first assigned error, defendant seeks to renew his motion to suppress “on the ground that it was unconstitutionally obtained.” Defendant alleges that he was not advised of his rights, pointing to Sergeant Clogher’s testimony that he did not read defendant his rights. He further asserts that there is “no proof of the Miranda rights in the discovery.” This argument has no merit. As previously discussed, the evidence reflects that Trooper Bourgeois advised defendant of his I! plights at the time of his arrest and also advised him of his rights relating to chemical testing once defendant was transported to the correctional center.

Defendant’s remaining assignments of error seemingly challenge the sufficiency of the evidence used to convict him. Without much elaboration, defendant asserts that there is no 9-1-1 call, no video or pictures of the traffic stop, and no exact time of the stop. Defendant appears to suggest that without this evidence, there is no corroboration for Sergeant Clogher’s testimony regarding the traffic stop and his encounter with defendant. First, the factors pointed out by defendant are not relevant to a determination of the sufficiency of the evidence used to convict him of driving while intoxicated. Moreover, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon, 07-915 (La.App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied, 08-987 (La. 1/30/09), 999 So.2d 745. To the extent that defendant attacks the credibility of the witnesses at trial, it is well settled that the credibility of the witnesses is within the sound discretion of the trier of fact, and the credibility of the witnesses will not be reweighed on appeal. State v. Martin, 11-160 (La.App. 5 Cir. 12/28/11), 83 So.3d 230, 236.

As stated previously, the evidence presented at trial clearly established the elements of the offense beyond a reasonable doubt. Accordingly, we find no merit to the issues raised in defendant’s pro se supplemental brief.

ERRORS PATENT REVIEW

In his -Anders brief, defendant’s appellate counsel requests an errors patent review. This Court routinely reviews the record for errors patent regardless of whether defendant makes- such a request. La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Wetland, 556 So.2d 175 (La. App. 5th Cir. 1990).

InA review of the record reveals several errors with regard to defendant’s sentence. First, the record reflects that the trial court failed to impose all the conditions of home incarceration. Specifically, the trial court failed to make any mention of electronic monitoring, curfew restrictions, limitation of activities outside the home, or home visitation. See La. R.S, 14:98.3, La. R.S. 14:98.5(B)(3), and La. C.Cr.P. art. 894.2. Also, the record does not reflect that defendant was given a certificate of conditions of home incarceration, as required by La, R.S. 14:98.5(B)(3)(f) and La. C.Cr.P. art. 894.2(D).

This Court has previously found that such deficiencies render a sentence illegally lenient and has thereafter vacated the sentence and remanded the matter for re-sentencing in compliance with the applicable statutes. See State v. Mitchell, 15-524 (La.App. 5 Cir. 12/9/15), 182 So.3d 365, 377; State v. Hunter, 13-82 (La.App. 5 Cir. 7/30/13), 121 So.3d 782, 787; and State v. Delanueville, 11-379 (La.App. 5 Cir. 2/14/12), 90 So.3d 15, 28-30, writ denied, 12-630 (La. 9/21/12), 98 So.3d 325.

In addition, the record fails to reflect that defendant was ordered to install an interlock device on his vehicle, pursuant to La. R.S. 14:98.3(3)(d). Further, we note that the trial court did not impose the restriction that at least one year of the imposed sentence, be served without the bénefit of probation, parole, or suspension of sentence, in accordance with La. R.S. 14:98.3(A)(1),

In light of these deficiencies, we vacate defendant’s sentence and remand the matter for resentencing in accordance with the appropriate statutes.

Lastly, although the minute entry states that defendant was informed of the time restrictions for seeking post-conviction relief, the transcript' contains no advice of rights concerning the time limits for seeking post-conviction relief. Upon remand and at resentencing, the trial court is instructed to properly advise defendant of the prescriptive period under La. C.Cr.P. art. 930.8.

JjijDE CRE E

For the foregoing reasons, defendant’s conviction for driving while intoxicated, third offense, is affirmed. Defendant’s sentence is hereby vacated, and the matter is remanded for resentencing in accordance with this opinion. Further, we grant appellate counsel’s motion to withdraw as attorney of record for defendant. :

CONVICTION AFFIRMED; SENTENCE VACATED; MATTER REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

      . In addition to the sentence for the felony offense, the trial court also sentenced defendant to thirty days for the misdemeanor offense of driving without taillights illuminated. The trial court ordered that defendant's sentences be served concurrently.

      . Trooper Bourgeois testified that he is certified in standardized field sobriety tests and certified to use the Intoxilyzer.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      .In Bradford, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App, 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      . The record reflects that defendant was issued a citation for a violation of La. R.S. 32:304.

      . The rights form indicates, by a check mark at the bottom, that defendant was "unable” to sign the form.

      . La, R.S, 14:98(A) provides in pertinent part: (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle ... when any of the following conditions exist:
      (a) The operator is under the influence of alcoholic beverages.
      (b) The operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood.


text:
    STATE of Louisiana v. Gerald J. DOMINICK
    NO. 16-KA-733
    Court of Appeal of Louisiana, Fifth Circuit.
    May 17, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Anne M. Wallis, Joshua K. Vanderhooft, Douglas E. Rushton
    COUNSEL FOR DEFENDANT/APPELLANT, GERALD J. DOMINICK, Jane L. Beebe
    Panel composed of Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson
   CHAISSON, J.

11 Defendant, Gerald Dominick, appeals his conviction and sentence for failure to comply with sex offender registration requirements. For the reasons set forth herein, we affirm defendant’s conviction and sentence and remand the matter for the correction of errors patent as noted herein.

PROCEDURAL HISTORY

On April 29, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with a violation of La. R.S. 15:542, “in that he did fail to comply with mandates of his registration as a convicted sex offender, by failing to appear for his initial registration with the sheriffs office.” At the April 30, 2015 arraignment, defendant pled not guilty.

A sanity commission was thereafter appointed to determine defendant’s competency to proceed to trial. Following a hearing on September 2, 2015, the trial court found defendant incompetent to proceed to trial and remanded him to a state mental health hospital. On March 9, 2016, the trial court conducted another competency hearing, at which time defendant was found competent to proceed to trial. Defendant thereafter withdrew his former plea of not guilty and entered a plea of not guilty and not guilty by reason of insanity.

On April 21, 2016, the State amended the bill of information to charge defendant with failure to comply with the sex offender registration requirements, second offense, in violation of La. R.S. 15:542. Defendant thereafter entered a plea of not guilty and not guilty by reason of insanity to the amended bill. The matter proceeded to trial before a twelve-person jury on June 21 and 22, 2016. After considering the evidence presented, the jury found defendant guilty as charged.

|2On July 22, 2016, defense counsel filed a motion for post-verdict judgment of acquittal and a motion for new trial, in which he raised claims relating to the sufficiency of the evidence. On July 25, 2016, the trial court denied these motions and thereafter sentenced defendant to five years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant now appeals.

FACTS

On June 25, 1984, defendant pled guilty to forcible, rape and was sentenced to seventeen years imprisonment at hard labor. Upon his release from prison for this offense, defendant failed to maintain his registration as a sex offender and was subsequently charged with a violation of La. R.S. 15:542. On April 5, 2011, defendant pled guilty to failing to register as a sex offender and was sentenced to two years imprisonment at hard labor. On January 4, 2013, defendant completed his sentence and was released, from confinement at the Madison Parish Detention Center in Tallu-lah, Louisiana.

On the date of his release, Robert Clements, a supervisor with the Louisiana Division of Probation and Parole, met with defendant at the correctional center, provided him with a certificate of release, and informed him of the registration and notification requirements for a convicted sex offender. During his trial testimony, Mr. Clements recalled explaining the laws regarding sex offender registration and notification requirements to defendant. He provided a form to defendant entitled “Louisiana Sex Offender Registration and Notification Requirements” reflecting these laws and read out loud the requirements to defendant, as he does for every sex offender being released. He described defendant as cooperative and compliant. | aWhile going over the forms with Mr. Clements, defendant initialed the provisions, thereby recognizing that the requirements of initial registration and initial notification were read and explained to him, including the condition that he had to report in person to the appropriate law enforcement agency within three days of his release and that failure to comply with the above requirements would result in a charge under La. R.S. 15:542.1.4. At the end of the requirements form, Mr. Clements printed defendant’s name, his address as Marrero, LA 70072, and the date. Defendant then signed his name, acknowledging that all applicable requirements of sex offender registration and notification had been explained to him and further acknowledging receipt of the form.

Despite this notification of the registration requirements by Mr. Clements, defendant did not report to the sheriffs office to register. At trial, Lieutenant Luis Mung-uia, who is in charge of Jefferson Parish sex offender registration, testified that he became aware of defendant’s non-compliance through an anonymous tip. After investigating the matter and verifying that defendant had failed to register as a sex offender, Lieutenant Munguia obtained a warrant for his arrest. On March 5, 2015, pursuant to the warrant, Detective Harley Smith of the Jefferson Parish Sheriffs Office arrested defendant at the Discount Zone on the Westbank Expressway, where defendant was working. As a result of this arrest, Detective Smith seized defendant’s identification card, which was issued on July 7, 2014, and which failed to denote his status as a sex offender.

Dr. Richard Richoux, an expert in the field of forensic psychiatry and a member of the sanity commission appointed to evaluate defendant, testified at trial regarding defendant’s competency to proceed to trial and his mental condition at the time of the offense. Dr. Richoux first evaluated defendant in August of 2015 to determine his competency to proceed to trial. With regard to this evaluation, Dr. 4Richoux reported that defendant manifested behavioral disinhibition, that he was unable to maintain logical and rational conversations, and that he showed evidence of perseveration. Based on his findings, Dr. Richoux recommended that defendant be found incompetent to proceed to trial. The trial court adopted the recommendation of the sanity commission, found defendant incompetent to proceed to trial, and remanded him to a state mental health hospital for treatment. After defendant was released from the hospital in late January or early February of 2016, Dr, Richoux evaluated him again, and at this point recommended that defendant be found competent to proceed to trial.

Dr. Richoux subsequently evaluated defendant again to determine his sanity at the time of the commission of the offense. After discussing the concept of legal sanity, Dr. Richoux indicated that the crime of failing to register as a sex offender is a crime of omission, and thus, it is “a little bit more difficult in some respects” to evaluate sanity at the time of the offense since it requires evaluation of the mental state of a person when he fails to do something rather than when he takes an active measure. Nonetheless, Dr. Richoux determined that defendant was legally sane at the time of the offense. In discussing his finding, Dr. Richoux noted that defendant was never diagnosed with a psychotic disorder but rather with a mood disorder. According to Dr. Richoux, a person may have active mental health issues that are cause for concern but that nonetheless do not rise to the level of severity necessary to prevent a person from being able to distinguish between right and wrong. In addition, Dr. Richoux remarked that defendant’s reasons for failing to register, that he did not have a permanent address nor a state-issued identification card, factored into his conclusion that defendant was legally sane at the time of the offense.

[^SUFFICIENCY OF THE EVIDENCE

In his sole assignment of -error, defendant challenges the sufficiency of the evidence used to convict him of failure to register as a sex offender, second offense.

On July 22, 2016, defense counsel filed a motion for post-verdict judgment of acquittal, asserting that the guilty verdict was not supported by the evidence presented at trial. In particular, defendant argued that “the jury failed to properly weigh the defendant’s history of mental illness or take into account the added burden his condition as a homeless person had on his inability to understand and meet the state’s registry requirements.” On the same date, defense counsel also filed a motion for a new trial, arguing in part that the verdict was contrary to the law and evidence and did not support a finding of guilt. Specifically, defendant alleged that “the evidence presented at trial tends to show the defendant had a long history of mental illness which obscured his ability to understand the requirements of registry and otherwise affected his ability to comply with the law.” The trial court denied both motions. On appeal, defendant challenges the denial of these motions, arguing that the State failed to prove beyond a reasonable doubt any criminal intent on the part of defendant.

In reviewing the sufficiency of evidence, an appellate court must determine if the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Rather, a reviewing court is required to consider the whole record and determine whether any rational trier of | ñfact would have found guilt beyond a reasonable doubt. State v. Jones, 08-20 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

In this matter, defendant was charged with and convicted of failure to register as a sex offender, second offense, in violation of La. R.S. 15:542. In order to support a conviction of La. R.S. 15:542, the State must prove that defendant was convicted of a sex offense as defined in La. R.S. 15:541, that he resided in Louisiana for the period during which he was required to register, and that he failed to register within the requisite time allotted for registration. State v. Flores, 14-642 (La.App. 5 Cir. 12/23/14), 167 So.3d 801, 806; State v. Watts, 09-912 (La.App. 4 Cir. 6/16/10), 41 So.3d 625, 641, writ denied, 10-1685 (La. 1/28/11), 56 So.3d 966. Additionally, since defendant was charged with failure to register, second offense, the State was required to prove that defendant was previously convicted of the crime of failure to register as a sex offender.

On appeal, defendant does not contest his prior conviction of forcible rape, for which he was required to register as a sex offender. Additionally, he does not contest that he resided in Louisiana, that he failed to register as required by La. R.S. 15:542, or that he was previously convicted of failure to register as a sex offender. Undoubtedly, the evidence presented at trial showed that defendant was previously convicted of forcible rape and was sentenced to seventeen years imprisonment at hard labor. Upon his release from incarceration, defendant failed to comply with the registration requirements and was charged with failure to register as a sex offender. He pled guilty to that offense and was sentenced to two years imprisonment at hard labor. Upon his release from confinement, defendant was advised of the registration and notification requirements for a convicted sex offender. However, defendant, who was residing in Marrero, failed to register with the sheriffs office in Jefferson Parish or anywhere else from the time he was released from custody in January of 2013 until his arrest in March of 2015.

17These facts are not disputed. Rather, defendant argues that the State failed to show criminal intent. In his appellate brief, defendant maintains that his only “crime” was that he was “mentally ill, poor, and homeless.” Defendant generally maintains that he thought he could not register due to the fact that he was homeless and had no address. To support his argument about intent, defendant further points out that he was previously found incompetent to proceed to trial in 2015 and was rehabilitated at a state hospital for several months, that he did not flee or resist when the police came to arrest him at work, and that none of the paperwork he signed upon his release from incarceration told him that he still had .to register even if he was homeless.

In the present case, defendant’s arguments fail as intent is not an element of the offense of failure to register as a sex offender. In State v. Watts, 41 So.3d at 639, the Fourth Circuit stated:

La. R.S. 14:8 plainly recognizes that certain conduct is criminal even in the absence of criminal intent. Additionally, La. R.S. 14:11 provides that in some crimes “no intent is required.” While offenses that dispose of a scienter requirement are not favored, the United States Supreme Court has noted that the legislatures’ authority to define a criminal offense includes the power to “exclude elements of knowledge and diligence from its definition.” Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1958). See also Powell v. Texas, 392 U.S. 514, 545, 88 S.Ct. 2145, 2160, 20 L.Ed.2d 1254 (1968) (Black, J. concurring) (“[L]egislatures have always been allowed wide freedom to determine the extent to which moral culpability should be a prerequisite to conviction of a crime.”). The Louisiana Legislature has determined that specific or general intent is not a necessary element of every crime. La. R.S. 14:8. Therefore, proof of whether the defendant’s failure to register as a sex offender was intentional plays no part in determining the defendant’s guilt of the instant offense.

Additionally, this Court, in State v. Flores, 167 So.3d at 807, discussed the elements of the offense of failure to register as a sex offender. This Court addressed the defendant’s arguments that in order to sustain a conviction under La. |sR.S. 15:542, the State must prove that: 1) a defendant must understand what is required of him in order to register; and 2) a defendant must have the financial ability to comply with the cost of registration. In finding no merit to the defendant’s arguments, this Court stated: “Defendant’s appreciation of La. R.S. 15:542 is misplaced. Neither asserted requirement is an ‘element’ of the charged offense.” Flores, supra. With regard to the defendant’s argument relating to the inability to pay the cost of registration, this Court explained:

The Louisiana Supreme Court addressed the issue of costs associated with sex offender registration in State ex rel. Olivieri v. State, 00-0172 (La. 2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001). In Olivieri, the defendants asserted that the sex offender registration requirement violated ex post facto prohibitions of the federal and state constitutions and that the cost of compliance with the requirement was unduly burdensome. While acknowledging that such costs could be “weighty,” the Court also recognized that such expenses are a “necessary part of the regulatory scheme,” and “that the economically harsh results of [the] well justified system of public notification is not the result of governmental action, but as a consequence of the sex offenders’ crimes.” Id. at 749.

Id.

Given this jurisprudence, we find no merit to defendant’s argument that the State failed to prove intent. Clearly, intent is not an element of the crime, and the fact that defendant was poor and homeless is not relevant to a determination of the sufficiency of the evidence to support his conviction. We note that as part of his argument, defendant references the fact that the paperwork he received upon his release from confinement did not provide instructions as to what to do or whether to report to the sheriffs office even if he did not have a permanent residence. As noted by the Third Circuit in State v. Ball, 16-653 (La.App. 3 Cir. 12/7/16), 209 So.3d 793, “... Defendant’s knowledge about the nuts and bolts of sex offender registration and notification is not relevant to a determination of the sufficiency of the evidence to support his convictions.”

19With regard to defendant’s mental illness, the jury, in the present case, heard the testimony of Dr. Richoux discussing defendant’s mental health issues and obviously found that defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense. Defendant does not argue on appeal that he met this burden of proof, but rather points to his mental illness as a factor that hampered his ability to understand what was required of him insofar as the registration requirements for a convicted sex offender and that prevented him from forming the criminal intent to actively fail to register. Louisiana does not recognize the defense of diminished capacity. A mental disease or defect short of insanity cannot serve to negate an element of the crime. State v. Wise, 13-247 (La.App. 5 Cir. 11/19/13), 128 So.3d 1220, 1225, writ denied, 14-253 (La. 9/12/14), 147 So.3d 703.

While we are sympathetic to defendant’s circumstances, intent is not an element of the offense of failure to comply with the sex offender registration requirements. Therefore, his arguments that his homelessness, poverty, and mental illness prevented him from forming criminal intent and hampered his ability to understand what was required of him are without merit.

Considering the foregoing, we find that the evidence was sufficient for any rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of failure to register as a sex offender, second offense. As such, we find that the trial court did not err in denying defendant’s motions for post-verdict judgment of acquittal and new trial.

ERRORS PATENT REVIEW

We have also reviewed the record for errors patent, in accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990). Our review reveals several errors. First, our review of the record indicates that the April 22, 2016 minute entry incorrectly 11flreflects that defendant entered a plea of not guilty to the amended bill of information. The record is clear that defendant actually entered a plea of not guilty and not guilty by reason of insanity. To ensure accuracy in the record, we remand this matter for correction of the April 22, 2016 minute entry to reflect defendant’s plea of not guilty and not guilty by reason of insanity.

We further note that defendant’s sentence is illegally lenient in that it was imposed without the mandatory fine of three thousand dollars, as provided in La. R.S. 15:542.1.4(A)(2). The appellate court has the authority to correct an illegally lenient sentence at any time. This Court has used that authority under La, C.Cr.P. art. 882 to correct an illegally lenient sentence or to remand the matter to the trial court for imposition of a mandatory fine.

However, often in cases involving indigent defendants, this Court has decided not to use this authority. See State v. Robinson, 15-610 (La.App. 5 Cir. 1/27/16), 185 So.3d 212, 215 (where this Court declined to remand for imposition of a mandatory fine due to the defendant’s indigent status). In the present case, defendant is apparently indigent, as reflected by his representation in this matter by the Louisiana Appellate Project. As such, despite the State’s request that we correct this illegally lenient sentence, we decline to do so.

Lastly, we note that the State of Louisiana Uniform Commitment Order incorrectly reflects the date of adjudication as July 25, 2016. Rather, the actual date of adjudication was June 22, 2016. To ensure accuracy in the record, we remand the matter to the district court for correction of the Uniform Commitment Order to reflect the correct date of adjudication. We further direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and to legal department of the Louisiana Department hof Public Safety and Corrections. See State v. Lyons, 13-564 (La.App. 5 Cir. 1/31/14), 134 So.3d 36, writ denied, 14-481 (La. 11/7/14), 152 So.3d 170.

Accordingly, for the reasons set forth herein, we affirm defendant’s conviction and sentence for failure to register as a sex offender, second offense, and remand the matter for the correction of errors patent as noted herein,

AFFIRMED; REMANDED WITH INSTRUCTIONS

      . A sanity commission was appointed to determine defendant's mental condition at the time of the offense.

      . It is noted that defendant filed a pro se “Motion for Appeal and New Trial” prior to sentencing. The trial court denied defendant’s motion for new trial. With regard to defendant’s motion for appeal, the transcript from July 25, 2016, indicates that the trial court advised defendant as follows: "you’re entitled to appeal as a matter of right, so I will grant your motion for appeal. Mr. Duffy will take care of that—so that’s premature at this point.” Subsequent to sentencing on July 25, 2016, Mr. Duffy, defendant's attorney, filed a written motion for appeal, which was granted on July 26, 2016.

      .The penalty provisions for the crime of failure to register as a sex offender are set forth in La. R.S. 15:542.1.4.

      . At the time of his release, defendant informed Mr. Clements that he would be residing in Marrero, but he did not specify the street address or place he would be living.

      . Dr. Richoux testified that behavioral disin-hibition is a "fancy way of saying he was impulsive.”

      . Dr. Richoux explained perseveration as going "back to the same thing over and over and over again even though we’re trying to discuss a different issue with him.”

      . It is noted that in the jury charges, the trial court specifically advised the jury that "La. R.S. 15:542 does not require intent as an element of the crime of failure to register as a sex offender.”


author: SAUNDERS, Judge.

text:
    John A. BILLIOT, Jr. v. Kendall WILTZ
    16-1047
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2017

      Charlotte C. McDaniel MeGehee, Attorney at Law, 16851 Jefferson Highway, Suite 6-B, Baton Rouge, LA 70817, ’(225) 389-6711, COUNSEL FOR PLAINTIFF/APPELLEE: John A. Billiot, Jr.
    Kendall Wiltz, In Proper Person, 215 South Sterling Street, Lafayette, LA 70501, (310) 435-0702, COUNSEL FOR DEFENDANT/APPELLANT: Kendall Wiltz

      Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Marc T. Amy, Judges.
   SAUNDERS, Judge.

1 jThis case involves a writ of quo war-ranto filed for by an individual who was appointed to a board. The individual’s appointment was not placed on the meeting agenda of the board and was not considered by the president of the board despite the CEO and president of the board having knowledge of the individual’s appointment with ample time to place the item on the agenda.

The board president’s term ended three months prior to the meeting as the individual seeking to be sat on the board had been appointed in the president’s place by a newly elected official. The trial court granted the individual’s writ and awarded the individual damages under La.R.S. 42:82 in the form of costs and attorney’s fees.

FACTS AND PROCEDURAL HISTORY:

On March 18, 2016, John A. Billiot, Jr. (Billiot) was appointed by Mayor-President, Joel Robideaux, as the representative of the Mayor-President to the St. Martin-Iberia-Lafayette Community Action Agency (SMILE) Board. SMILE is a corporation organized under the law of the State of Louisiana, domiciled and doing business in the Parishes of St. Marin, Iberia, and Lafayette. Billiot’s appointment to the SMILE Board was memorialized in a letter written that day..

Later that same day, Billiot met with Royal Hill, the CEO of SMILE. According to Billiot, Hill informed him that his appointment to the SMILE Board would not be accepted because that board membership was currently being held by Kendall Wiltz, the current President of the SMILE Board.

On Monday, March 28, 2016, there was a meeting of the SMILE Board wherein Bil-liot’s appointment to the SMILE Board was not addressed. According to Wiltz, it was not addressed because it was not placed on the agenda by Hill, and Wiltz failed to obtain unanimous consent to amend the agenda to include Billiot’s |2appointment. Wiltz was still acting as President of the SMILE Board despite his term ending the preceding January.

On April 6, 2016, Billiot filed a petition for writ of quo warranto against Wiltz, individually, and acting as president of the SMILE Board. Billiot’s petition contended that the SMILE Board met on March 28, 2016. According to Billiot, Wiltz retained physical possession of the office of SMILE Board President and refused to surrender it or the books and papers associated with the position into Billiot’s custody despite Wiltz’s term on the board ending in January 2016. Further, Billiot averred that Wiltz continued to usurp the prerogatives of the office illegally and without authority.

A trial was held on the merits of Billiot’s writ for quo warranto. The trial court ruled in favor of Billiot and found that he was entitled to attorney’s fees and costs from Wiltz as the damages he suffered under La.R.S. 42:82. Wiltz appeals and assigns four errors.

ASSIGNMENTS OF ERROR:

1. The trial court erred in assessing attorney’s fees and costs against appellant.

2. The trial court erred in assessing attorney’s fees and costs against appellant personally as he was acting in his official duties as the SMILE Board President when this action commenced.

3. The trial court erred in assessing attorney’s fees and costs against appellant as a result of John Billiot, Jr. not being seated on the SMILE Board on March 28, 2016, as the Louisiana Open Meetings Law was followed.

4. The trial court erred in assessing attorney’s fees and costs against appellant because at the time of the hearing John Billiot, Jr. wás seated on the SMILE board, making the entire proceedings moot.

DISCUSSION OF THE MERITS:

IrAII of the assigned errors above address the propriety of the trial court assessing attorney’s fees and costs against Wiltz. As such, we will address them under one heading.

A writ of quo warranto directs an individual to show cause by what authority he claims or holds office. La. C.C.P. art. 3901. A writ of quo warranto serves the narrow function of preventing the usurpation of office or of powers. [State ex rel Palfrey v. Simms, 152 So. 395 (La.App.1934)]. Unlike a mandamus, a writ of quo warranto is not an order directing the defendant to perform (or to cease performing) a certain act; rather, it is an order directing the defendant to show by what authority he or she is acting. La. C.C.P. art. 3901, Official Comment (e).
In a quo warranto action, the defendant has the burden of showing by what authority he or she claims to hold office. In re Interdiction of Vicknair, 2001-0902, p. 4 (La.App. 1 Cir. 6/21/02), 822 So.2d 46, 50. If the court finds that burden is not met (i.e., that the 'defendant is claiming or holding office without authority), it is required to render judgment forbidding him or her from doing so. La. C.C.P. art. 3902. The court may also render judgment declaring who is entitled to office and, when necessary, directing an election be held. Id.
Because the issues presented in this quo warranto action are all legal ones, the standard of review is de novo. See Vanderhoff v. Beary, 2003-0912, p. 2 (La. App. 4 Cir. 8/20/03), 853 So.2d 752, 754, writ denied, 2003-2895 (La. 1/9/04), 862 So.2d 987 (citing Cleco Evangeline, LLC v. Louisiana Tax Com,’n, 2001-2162, p. 3 (La. 4/3/02), 813 So.2d 351, 353).

Crutcher v. Tufts, 04-653, pp. 6-7 (La.App. 4 Cir. 2/16/05), 898 So.2d 529, 533.

Wiltz’s first argument as to why the trial court erred in assessing attorney’s fees and costs against him personally is that he was acting, in his official duties as the SMILE Board President when this action commenced. We find no merit to this argument.

Louisiana Revised Statutes 23:64.1, in pertinent part, states (emphasis added):

[ (A) ](1) One-third of the members 'of the board shall be elected public officials currently holding- office in the geographical area to be served by the community action agency. If the number of elected public officials available and willing to serve is less than the one-third | ¿requirement, appointed public officials may be used to meet this requirement. Duly appointed members may designate an individual to represent them on the board by properly notifying the local community action agency of such desig- . nation.
(C) The terms of board members selected in Paragraph (1) of Subsection A of this Section shall coincide with the term of their elected office.

Here, Wiltz was appointed to the SMILE board by former Mayor-President of Lafayétte, Joey Durel. Wiltz’s term on the SMILE board ended when former Mayor-President Durel’s term ended on Monday, January 4, 2016, the date that Durel’s successor, Mayor-President Joel Robidéaux, was officially sworn in to office. Accordingly, Wiltz was not acting within his official duties as the SMILE Board President when the action commenced.

Wiltz argues that the trial court erred in assessing attorney’s fees and costs against him insofar as he was following Louisiana Open Meetings Law in failing to seat Billiot at the March 28, 2016 meeting. We find no merit to this argument.

Louisiana Revised Statutes 42:19 states, in pertinent part, the following:

A. (l)(a) All public bodies, except the legislature and its committees and subcommittees, shall give written public notice of their regular meetings, if established by law, resolution, or ordinance, at the beginning of each calendar year. Such notice shall include the dates, times, and places of such meetings.
(b)(i) All public bodies, except the legislature and its committees and subcommittees, shall give written public notice of any regular, special, or rescheduled meeting no later than twenty-four hours, exclusive of Saturdays, Sundays, and legal holidays, before the meeting.
(ii)(aa) ’Such notice shall include the agenda, date, time, and place of the meeting. The agenda shall not be changed less than twenty-four hours, exclusive of Saturdays, Sundays, and legal holidays, prior to the scheduled time of the meeting.
(bb) Each item on the agenda shall be listed separately and described with reasonable specificity. Before the public body may take any action on an item, the presiding officer or his designee shall | fii-ead aloud the description of the item except as otherwise provided in Subitem (dd) of this Item.
(cc) Upon unanimous approval of the members present at a meeting of a public body, the public body may take, up a matter not on the agenda. Any such matter shall be identified in the motion to take up the matter not on the agenda with reasonable specificity, including the purpose for the addition to the agenda, and entered into the minutes of the meeting. Prior to any vote on the motion to take up a matter not on the agenda by the public body, there shall be an opportunity for public comment on any such motion in accordance with R.S. 42:14 or 15, The public body shall not use its authority to take up a matter not on the agenda as a subterfuge to defeat the purposes of this Chapter.

Wiltz’s argument is that Billiot’s appointment was not placed on the agenda for the March 28, 2016 meeting. As such, according to Wiltz, he could not have placed Billiot on the board at that time without unanimous approval of the members present under La.R;S. 42:19. Wiltz testified that unanimous approval was not obtained at the meeting to consider Billi-ot’s appointment.

Billiot’s testimony was that he showed the March 18, 2016 letter to the CEO of SMILE, Royal Hill, that Wiltz was aware of the letter with more than ample time to have put Billiot’s seating on the agenda, and that Wiltz illegally chose not to do so. According to Billiot’s testimony, Wiltz knew that his term had ended, but refused to relinquish his seat to, Billiot.

The trial court made a finding of fact that Wiltz’s continued interference with the appointment of Billiot caused Billiot damages. This finding is subject to the manifest error standard of review. The record is such that the testimony of Billiot supports the trial court’s findings of fact. As such, we cannot say the trial court was manifestly erroneous in its judgment.

Moreover, regardless of whether SMILE Board meetings were subject to La.R.S. 42:19 notice of meetings requirements, the well supported; finding of fact remains that Wiltz continued to serve on the SMILE Board after his term ended, 1 fiand he did so despite Billiot being appointed to the board by the proper elected official.

Finally, Wiltz argues that the trial court erred in assessing attorney’s fees and costs against him because Billiot was seated on the SMILE Board at the time of the trial, making the entire proceedings moot. We disagree.

When an action is brought against a person for usurping or intruding into or unlawfully holding or attempting to retain possession of a public office, the person who brings the action must set forth in the complaint the name of the person rightfully entitled to the office, with a statement of his right thereto.
In this case or in case the suit is brought by a claimant to the office on proof that the defendant is in bad faith holding or attempting to retain possession of a public office and in such bad faith has received fees or emoluments belonging to the office, the court may in its decree require the defendant to refund them and render judgment against him for the amount thereof as in other civil suits.

La.R.S. 42:80. “If the judgment is in favor of the person alleged to be entitled to the office, he may recover the damages he sustained by reason of the usurpation by the defendant.” La.R.S. 42:82.

Louisiana Revised Statutes 42:82 authorizes the trial court to use its discretion in awarding a successful writ of quo war-ranto plaintiff damages he sustained by reason of the usurpation by the defendant. Here, the trial court found that Wiltz’s actions both before and during the March 28, 2016 meeting, once he had knowledge of the March 18, 2016 letter appointing Billiot to the SMILE Board, forced Billiot to file suit in order to be seated on the board. As such, the trial court chose to award Billiot for his damages incurred in the form of payment of attorney’s fees and costs in order to get Wiltz to be removed from the board and to have his seat recognized. We find no abuse of the discretion afforded the trial court in this matter.

ANCILLARY MATTER:

[7Billiot asked that this court award him additional attorney’s fees from Wiltz related to this appeal. A party that does not answer an appeal is not entitled to attorney’s fees at the appellate level. Dugas v. Aaron Rents, Inc., 02-1276 (La.App. 3 Cir. 3/5/03), 839 So.2d 1205. As such, we deny this request.

DISPOSITION:

Kendall Wiltz assigned four errors in this case which are better characterized as four arguments for one assigned error. We find no merit to any of the arguments or the alleged error. As such, we affirm the trial court’s judgment.

John Billiot, Jr. requested additional attorney’s fees related to this appeal. We deny this request. All costs of these proceedings are assessed to Kendall Wiltz.

AFFIRMED.