author: WEIMER, Justice

text:
    JAZZ CASINO COMPANY, L.L.C. v. Cynthia BRIDGES, Secretary, Louisiana Department of Revenue
    No. 2016-C-1663
    Supreme Court of Louisiana.
    05/03/2017
    See also 2017 WL 496266.

      JONES WALKER LLP, Jesse R. Adams, III, Andre Brian Burvant, Justin Buford Stone; for Applicant.
    LOUISIANA DEPARTMENT OF REVENUE, Debra Dauzat Morris, Bran-dea Powell Averett, Brian C. DeJean, Miranda Yvette Connor, Antonio Charles Ferachi; for Respondent.
   WEIMER, Justice

_JjThe taxpayer in this matter seeks to compel the tax collector to perform statutory duties in connection with a judgment in a proceeding under La. R.S. 47:1621, et seq., that ordered a refund of hotel occupancy taxes overpaid by the taxpayer in several tax years. Finding that these statutory duties are ministerial, the district court issued a writ of mandamus to the tax collector to compel payment of the tax refund judgment. The court of appeal reversed and recalled the writ due to the lack of evidence needed to obtain a writ of mandamus. Based on the ministerial nature of the constitutional and statutory duties owed by the tax collector in connection with the taxpayer’s refund judgment, the decision of the appellate court is reversed, and the district court’s judgment is reinstated.

| .FACTUAL AND PROCEDURAL BACKGROUND

In connection with its operation of a land-based casino in New Orleans, Jazz Casino Company, L.L.C. (Jazz) entered into contracts with various hotels for rooms made available to casino patrons on a complimentary or discounted basis. Jazz was required to pay for a specific number of rooms for the duration of the contract even if the rooms were not used by Jazz patrons. As a result of these hotel room rentals, hotel occupancy taxes were remitted to the Louisiana Department.of Revenue (Department). The taxes consisted of. state general sales taxes and sales tax collected on behalf of the following three entities: Louisiana Tourism Promotion District (Tourism District), the Louisiana Stadium and Exposition District (Stadium District), and the New Orleans Exhibition Hall Authority (Hall Authority).

In August 2004, Jazz filed three claims for refund with the Department, alleging that Jazz overpaid hotel occupancy taxes for various hotel room rentals between October 1, 1999, and June 30, 2004. Following the denial of its claims by the Department, Jazz filed suit with the Louisiana Board of Tax Appeals (Board), seeking a determination of overpaid taxes in accordance with La. R.S. 47:1621. Under the terms of Jazz’s contracts with the local hotels, the rental of the hotel rooms by Jazz was not found'to be as a “transient guest.” As a consequence of that finding, Jazz was exempt from the tax at issue. Subsequently, the parties jointly stipulated that Jazz’s tax overpayments totaled $1,983,315.27 for the periods in question. Of these overpayments, two percent was state general sales taxes. The remaining 98 percent was collected by the Department on behalf the Tourism District, Stadium District, and Hall Authority.

|HOn October 8, 2014, Jazz obtained judgment from the Board, which provided:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that [Jazz] overpaid hotel occupancy taxes during the Taxable Period in the total amount, exclusive of interest, of $1,983,315.27;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Department shall refund to [Jazz] $1,983,315.27, together with applicable statutory interest, pursuant to LSA-R.S. 47:1621(D)(1)[.]

This refund judgment was not appealed and is now final. See La. R.S. 47:1434 and 1438.

Subsequently, the Department remittéd the portions of the judgment related to state general sales taxes and the taxes collected on behalf of the Tourism District. Therefore, only the taxes collected on behalf of'the Stadium District and Hall Authority remain at issue.

When the Department failed to timely refund the amounts overpaid to the Stadium and Hall Authority in accordance with La. R.S. 47:1621, et seq., Jazz filed a petition for a writ of mandamus with the district court to compel satisfaction of the refund judgment. In' its petition, Jazz alleged that the refund of the overpaid taxes is a statutorily-mandated duty enforceable by the judiciary (citing La: R.S. 47:1437(B) and 47:1621(D)(3)). Agreeing, the district court granted Jazz’s request by judgment dated September 24, 2015, which provides:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Alternative Writ of Mandamus issued by the Court on August 31, 2015 is made peremptory and permanent directing ... Secretary of the Department of Revenue, State of Louisiana to comply with the Judgment issued by the Louisiana Board of Tax Appeals on October 8, 2014 and remit all remaining amounts that have not yet | refunded, $1,613,851.85, along with applicable statutory interest, within thirty-five days of entry of this Judgment.

On appeal, the mandamus judgment was reversed and the writ of mandamus was recalled, based on a finding that Jazz had failed to prove it was unable to obtain relief by ordinary means or that the delay in obtaining such relief would cause injustice as required by La. C.C.P. art. 3862. In the absence of such proof, the appellate court found that Jazz failed to show it was entitled to mandamus relief, even if the duty of the Department’s Secretary (Secretary) to refund overpaid taxes is a non-discretionary, ministerial duty. Jazz Casino Co. v. Bridges, L.L.C., 15-1721 (La. App. 1 Cir. 6/6/16), 2016 WL 3145015 (unpublished).

Jazz’s writ application to this court was granted to determine whether Jazz is entitled to mandamus relief under the facts of this case. Jazz Casino Co. v. Bridges, L.L.C., 16-1663 (La. 1/9/17), 214 So.3d 859, 2017 WL 345167.

DISCUSSION

The state constitution divides governmental power among separate legislative, executive, and judicial branches and provides that no one branch shall exercise powers belonging to the others. Hoag v. State, 04-0857, p. 4 (La. 12/1/04), 889 So.2d 1019, 1022 (citing La. Const., art. II, §§ 1 and 2). “This trichotomous branching of authority furnishes the basis for the existence of an inherent judicial-power that the legislative and executive branches cannot abridge?’ Id. “Likewise, the judicial branch is prohibited from infringing upon the inherent powers of the legislative and executive branches.” Id. Thus, when litigants seek to invoke the power of the judiciary to compel another branch of government to perform or act, care must be taken in examining whether the action is within the confines of the, judiciary’s constitutional authority. Id.

LHere, Jazz sought the issuance of a writ of mandamus by the judiciary to compel the Secretary, who is within the executive branch of government, to refund the amounts Jazz had overpaid in hotel occupancy taxes to the Stadium District and Hall Authority as ordered in the refund judgment. “Mandamus is a writ directing a public officer ... to perform” “a ministerial duty required by law.” La. C.C.P. arts. 3861 and 3863. In general terms, a writ of mandamus is an extraordinary remedy and “may be issued in all cases where the law provides no relief by ordinary means or where delay in obtaining ordinary relief may cause injustice.” La. C.C.P. art. 3862. A “ministerial duty” is one “in which no elément of discretion is left to the public officer,” in other words, “a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.” Hoag, 04-0857 at 7, 889 So.2d at 1024. If a public officer is vested with any element of discretion, mandamus will not lie. See, e.g., Landry v. City of Erath, 628 So.2d 1178, 1180 (La.App. 3 Cir. 1993).

The legislature, has statutorily provided for the payment and collection of taxes pursuant to its constitutional authority., While having the power to tax, the legislature must “provide a complete and adequate remedy for the prompt recovery of an illegal tax paid, by a taxpayer.” See La. Const, art. VII, § 3(A). In connection with this constitutional obligation,' the legislature created the Board of Tax Appeals to “act as an appeal board to hear and decide ... disputes ... between a taxpayer and the collector of revenue.” La. R.S. 47:1401.

| ¡/Utilizing its authority under La. Const, art. XII, § 10(C) to “provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment,” the legislature has afforded taxpayers the following three remedies to fulfill its obligation under La. Const, art. VII, § 3(A): (1) the “Claims Against the State” procedure, (2) the “Payment Under Protest” procedure; and (3) the “Overpayment Refund” procedure. St. Martin v. State, 09-0935, p. 4 (La. 12/1/09), 25 So.3d 736, 738. The procedures for these three remedies are set forth in La. R.S. 47:1481, et seq.; La. R.S. 47:1576, et seq.; and La. R.S. 47:1621, et seq., respectively. St. Martin, 09-0935 at p. 4, 25 So.3d at 738. Only the provisions related to the first of these remedies, that is, the claims against the state procedure, expressly requires an appropriation of funds by the legislature. See La. R.S. 47:1483 and 47:1484. Relative to the second and third remedies, the legislature enacted 17procedures to authorize the return of overpaid taxes without requiring a legislative appropriation.

When a taxpayer utilizes the payment under protest procedure (the second remedy), the contested amount is to be escrowed “pending the outcome of the suit, the petition, or an appeal therefrom.” See La. R.S. 47:1576(A)(2). In that type of proceeding, payment to a prevailing taxpayer is governed by La. R.S. 47:1576(A)(3), in which the legislature mandates that the refund of the taxpayer’s money being held by the Secretary be made from the escrowed funds and “from funds derived from current collections' of the tax to be refunded.”

Relative to the third remedy related to overpayment of refunds, as occurred in this matter, La. R.S. 47:1621, et seq., set forth the procedure for refunding overpaid taxes. Overpayment is defined as a “payment of tax ... when none was due, [or] the excess of the amount of tax ... paid over the amount due.” La. R.S. 47:1621(A). Unlike payments made under protest, these overpaid amounts are generally no longer in the possession or reach of the Secretary when the action for refund is filed. | ¡/Therefore, the legislature devised a method for satisfying the Secretary’s obligation to refund overpaid taxes.

Where there has been a determination that an overpayment has been made, La. R.S. 47:1621(D)(1) directs that the refund of overpaid taxes “shall be made out of any current collections of the particular tax which was overpaid.” The refund of over-payments that occurred in multiple years may be refunded “incrementally” by the Secretary; however, “[t]he number of increments shall not exceed the total number of years the tax was overpaid.” La. R.S. 47:1621(D)(2). Within 45 days of the finality of a refund judgment in a Section 1621 proceeding, “the secretary shall make the refund.” See La. R.S. 47:1621(D)(3). For incremental refunds, “[t]he first payment owed ... shall be made within” 45 days of the judgment becoming final. La. R.S. 47:1621(D)(8) and(4).

By enacting legislation to provide for “a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer,” the legislature has expressly provided for the procedures in suits against the state, a state agency, and a political subdivision and the effects of a judgment against them in the three types of tax proceedings identified above. To be valid, such legislation must comport with due process, equal protection, and the other constitutional guarantees. See Chamberlain v. State, Dept. of Transp. and Development, 624 So.2d 874, 883 (La. 1993) (citing Lee Hargrave, “Statutory” and “Hortatory” Provisions of the Louisiana Constitution of 1974, 43 La. L. Rev. 647, 655-56 (1983)).

LThis case proceeded as a claim for refund of overpaid taxes under La. R.S. 47:1621. As previously indicated, the refund judgment in this case is final. Accordingly, the Secretary is statutorily required to “promptly ... make the refund” of Jazz’s overpayments. See La. R.S. 47:1437(B). Such refund by the Secretary shall take place or commence within 45 days of the judgment becoming final. See La. R.S. 47:1621(D)(3) & (4). The Secretary’s duties under these statutes are ministerial, as the Secretary is not afforded any discretion relative to the return of taxes (determined to have been overpaid) to a taxpayer in the overpayment refund process. See Hoag, 04-0857 at 7, 889 So.2d at 1024.

Tax laws enacted by the legislature to satisfy the requirements of La. Const, art. VII, § 3(A) make the refund of overpaid taxes under La. R.S. 47:1621 mandatory. See Tin, Inc. v. Washington Parish Sheriff’s Office, 12-2056, pp. 17-18 (La. 3/19/13), 112 So.3d 197, 209 (citing La. R.S. 47:1621(A)) (“The applicable statutes set out the circumstances under which the tax collector must refund the taxpayer for the overpayment of taxes.”). In this respect, this statutory scheme is similar to the laws governing the expropriation of private property for public purposes. “The power of expropriation or eminent domain is the right of the State or its subdivisions to appropriate private property for public purposes, and is inherent in police power of | instate.” Parish of St. Charles v. R.H. Creager, Inc., 10-180, p. 10 (La.App. 5 Cir. 12/14/10), 55 So.3d 884, 891. The constitutional provisions that afford a public body the right “to exercise its police power compels the public body to pay just and fair compensation and to afford constitutional due process rights to citizens affected.” Id. (citing, inter alia, La. Const. art. I, §§ 2 and 4(B)).

As urged by the Department, La. Const, art. XII, § 10(C) and La. R.S. 13:5109(B)(2) require an appropriation of funds by the legislature or the political subdivision against which a judgment was rendered to make a judgment “exigible” or “payable.” Accordingly, in the context of tort or contract-based claims, courts have held that a judgment creditor of the state, a state agency, or . a political subdivision can only collect on a judgment by obtaining an appropriation of funds by the legislature. See Hoag, 04-0857 at 5, 889 So.2d at 1023. However, the mandatory-nature of the overpayment refund, like the compensation that is required in Inexpropriation cases, distinguishes an overpayment refund proceeding under La. R.S. 47:1621, et seq., from cases requiring a legislative appropriation for payment of a judgment, ie., matters arising out of contract or tort. In exercising the legislative authority to “determine when and how ⅛0 pay” a judgment against the state, a state agency, or political subdivision and to provide “a complete and adequate remedy for the prompt recovery of an-illegal tax paid by a taxpayer,” the legislature made the refund of tax overpayments mandatory. Accordingly, the legislature afforded the judiciary authority to issue a mandamus in a proceeding under La. .R.S. 47:1621, et seq., to compel enforcement of a final refund judgment., In La. R.S. 47:1437(0), |12the legislature expressly authorizes the use'of mandamus relief to compel the Secretary to “promptly ,.. make the refund.” When a writ of mandamus is specifically provided as a remedy by statute, the general rules for a mandamus action do not apply; therefore, the petitioner is not required to show that relief is not available by ordinary means or that the delay involved in obtaining ordinary relief may cause injustice, as required by La. C.C.P. art. 3862. See Wallace C. Drennan, Inc. v. St. Charles Parish, 14-89, pp. 5-6 (La.App. 5 Cir. 8/28/14), 164 So.3d 186, 190; Quality Design and Const., Inc. v. City of Gonzales, 13-0752, pp. 6-7 (La.App. 1 Cir. 3/11/14), 146 So.3d 567, 572. Accordingly, mandamus is an appropriate remedy to compel the Secretary to the perform duties owed under La. R.S. 47:1621.

Because a claim for a refund of overpaid taxes involves the return of money belonging to the taxpayer that is being held by the Department, a proceeding under La. R.S. 47:1621, like an expropriation proceeding, implicates constitutional concerns involving the deprivation of property. Even assuming that the “current collections of the particular tax which was overpaid” actually used in the refund process are public funds, the issuance of a writ of mandamus ordering the Secretary to use those funds does not violate the constitutional prohibition of seizing public funds. The state legislature has specifically authorized the procedure in La. R.S. 47:1621(D) to provide for the satisfaction of a final judgment against the Secretary to effect the return of |13money belonging to the taxpayer. Hence, the constitutional mandates applicable in this ease would be satisfied even if the “current collections” are public funds. To hold otherwise would allow the Secretary to disregard mandatory obligations under La. Const. art. VII, § 3(A) and La. R.S. 47:1621, under the guise that a court-issued mandamus ordering such refund violates the separation of powers doctrine. Such a result would render meaningless the constitutional guarantee under La. Const. art. VII, § 3(A) of “a complete and adequate remedy for the prompt recover of an illegal tax paid by a taxpayer,” as well as the statutory scheme authorizing the recovery of overpaid taxes rightfully belonging to the taxpayer and the legislatively mandated mechanism for enforcing a final judgment that authorizing the refund of overpaid taxes.

CONCLUSION

Jazz is not attempting to enforce a judgment against a public body that arose in tort or contract. Ultimately, at the heart of this dispute is whether the legislature must appropriate funds to satisfy Jazz’s tax refund judgment. A distinguishing characteristic of the funds sought by Jazz is that these funds belong to Jazz; whereas, with a judgment in a tort or contract matter, the judgment creditor is attempting to collect funds the public body legally collected which have become public funds. Although collected from Jazz by the Secretary and held by the Stadium District and Hall Authority according to the Board’s now-final judgment, the Secretary and these entities were without legal authority to collect these taxes. To fulfill its constitutional duty, the legislature provided a statutory scheme authorizing a refund to the taxpayer of what are in effect the taxpayer’s funds.

114Jazz’s refund judgment arose from an overpayment of $1,983,315.27 in hotel occupancy taxes over several tax years, which is expressly governed by La. Const, art. VII, § 3; La. R.S. 47:1621; and La. R.S. 47:1437(B) and (C), in addition to La. Const, art. XII, § 10. Section 1621 mandates the use of current collections of the hotel occupancy taxes for the Stadium District and Hall Authority to satisfy of Jazz’s refund judgment. The Secretary’s duty under La. R.S. 47:1621 to refund overpaid taxes is ministerial. The legislature has expressly authorized the use of a writ of mandamus to compel the Secretary to fulfill the duties imposed by La. R.S. 47:1437(B) and 47:1621. See La. R.S. 47:1437(C). Therefore, the district court was within its constitutional and statutory authority to issue a writ of mandamus to the Secretary to compel compliance with the refund judgment.

DECREE

For the foregoing reasons, the decision of the appellate court is reversed, and the judgment of the district court is reinstated to the extent that it compels the Secretary of the Louisiana Department of Revenue to refund the amounts that Jazz overpaid in hotel occupancy taxes to the Louisiana Stadium and Exposition District and the New Orleans Exhibition Hall Authority, together , with applicable interest, pursuant to La. R.S. 47:1621(D) and in accordance with this opinion.

REVERSED; TRIAL COURT JUDGMENT REINSTATED.

JOHNSON, Chief Justice, concurs in the result.

      . See La. C.C.P. art. 3862 (which requires proof that "the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice”).

      . Shortly after, the Department filed a motion with the Board to annul the refund judgment, contending the Board was without subject matter jurisdiction to order a refund of taxes the Department collected on behalf of the Stadium District and Hall Authority. The Board denied the Department’s jurisdictional challenge, and the Board’s judgment denying the Department's motion to annul was affirmed on appeal. See Jazz Casino Co. v. Louisiana Department of Revenue, 16-0180 (La.App. 1 Cir. 2/7/17), 2017 WL 496266 (unpublished). The Department’s writ application is currently pending before this court, Docket Number 17-C-0423.

      . See La. Const. art. VII, § 1.

      .In pertinent part, La. Const, art. XII, § 10(C) provides:
      - [The legislature] shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims.

      . Concerning payment of approved claims utilizing the claims against the state procedure, La. R.S. 47:1483 provides:
      If the claim is approved and it should be an amount not exceeding one thousand dollars, - the chairman of the Board of Tax Appeals shall issue a warrant upon the State Treasurer, for the amount for which the same is approved, stating in said warrant the amount, purposes, and reasons for which the same is drawn. If said claim shall amount to more than one thousand dollars, and is approved by said Board of Tax Appeals, the chairman, giving all the facts and circumstances ' in connection therewith, shall report the same to the next session of the legislature for its consideration. Provided that where such claim accrues to more than one person, as for example, the heirs or legatees of another, and the Claim is determined by the board to be properly due and owing, payment thereof to the party or parties asserting the same before the board shall not be denied because of the failure or refusal of others to join in and assert such claim, but in such event only the portion due such claimant or claimants shall be paid and then only if the amount to be paid to each such claimant does not exceed one thousand dollars. [Emphasis added.]

      .Concerning satisfaction of claims rendered in a claims against the state proceeding, La. R.S. 47:1484(A) provides:
      At each regular session of the legislature, an amount shall be appropriated, ... for the purpose of paying any and all claims that might be approved in accordance with the provisions of this Part, and which may be drawn against for the purpose of paying claims that might be duly approved by the Board of Tax Appeals. [Emphasis added.]

      .La. R.S. 47:1576(A)(3) provides:
      If the' taxpayer prevails, the secretary shall refund the amount to the claimant, with interest at the rate established pursuant to R.S. 13:4202(B) from the date the funds were received by the Department of Revenue or the due date, determined without regard to extensions, of the tax return, whichever is later, to tire date of such refund, Payments of interest authorized by this Section shall be made from funds derived from current collections of the tax to be refunded.
      To the extent that the taxpayer’s total recovery exceeds the escrowed amount, for example, when interest is owed to the claimant, the legislature mandates that payment "be made from funds derived from current collections of the tax to be refunded.” Id. This mandate is not tethered to a legislative appropriation.

      . See La. Const. art. VII, § 3(A).

      . See La. Const. art. XII, § 10(C) (quoted supra n.4).

      . Although the statutory scheme for overpayment refunds provides for the potential for the Secretary to ascribe a credit against the taxpayer’s other tax liabilities, the parties have not raised or argued this issues and, instead, focus on the refund provisions in La. R.S. 47:1621. See La. R.S. 47:1622(A) ("Before refunding any overpayment, the secretary may first determine whether the taxpayer who made the overpayment owes any other liability under any law administered by him. If such be the case, the secretary may credit the overpayment against such liability and notify the taxpayer of the action taken.”).

      . Furthermore, the legislature has retained the power to oversee the refund process by requiring "[t]he secretary [to] report quarterly to the Joint Legislative Committee on the Budget the total amount of refunds made each quarter and [to] specifically note when any refunds were not paid within the time period provided for in Paragraph (D)(3) of this Section and the reason therefor.” La. R.S. 47:1621(H). The enactment of such a reporting requirement supports a finding that the legislature did not intend that the refund of taxes erroneously paid to the Department be conditioned on a legislative appropriation. There would be no need for such a reporting requirement if a legislative appropriation is required.

      . "No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered.” La. Const, art. XII, § 10(C).
      Pursuant to La. Const, art. XII, § 10(C), the legislature passed La. R.S. 13:5109(B)(2), which provides:
      Any judgment rendered in any suit filed against the state, a state agency, or a political subdivision, or any compromise reached in favor of the plaintiff or plaintiffs in any such suit shall be exigible, payable, and paid only out of funds appropriated for that purpose by the legislature, if the suit was filed against the state or a state agency, or out of funds appropriated for that purpose by the named political subdivision, if the suit was filed against a political subdivision. [Emphasis added.]

      .Suits against the state are governed by La. Const, art. XII, § 10, which waives state immunity from suit in contract and tort. See La. Const. art. XII, § 10(A). This constitutional provision also empowers the legislature to waive immunity in other instances by “authorizing] other suits against the state, a state agency, or a political subdivision.” La. Const. art. XII, § 10(B).

      . See Vogt v. Board of Com’rs of Orleans Levee Dist., 01-0089, p, 8 (La.App. 4 Cir. 3/27/02), 814 So.2d 648, 654 (citing Baudoin v. Acadia Parish Police Jury, 96-1288, pp. 5-6 (La.App, 3 Cir. 9/17/97), 702 So.2d 715, 718, and Foreman v. Vermilion Parish Police Jury, 336 So.2d 986 (La.App. 3 Cir. 1976).

      . See Parish of St. Charles, 10-180 at 11, 55 So.3d at 891.

      . The appropriation of funds by a public body is discretionary and not ministerial. Vogt, 01-0089 at 8, 814 So.2d at 654 (citing De Laureal Engineers, Inc. v. St. Charles Parish Police Jury, 406 So.2d 770 (La.App. 4 Cir, 1981)). Because appropriation is discretionary, mandamus will not lie to compel payment of a judgment by a state, a state ■ agency, or political subdivision. See id.

      . See Chamberlain, 624 So.2d at 882 (citing Hargrave, 43 La. L. Rev. at 654).

      . See La. Const. art. VII, § 3(A).

      . See Parish of St. Charles, 10-180 at 13, 55 So.3d at 892 ("the judiciary has the constitutional authority to issue a mandamus in [an expropriation] matter" [to compel payment of a final judgment] if warranted.”). For another example in which mandamus was authorized, see Felix v. St. Paul Fire and Marine Ins. Co., 477 So.2d 676, 678-82 (La. 1985) (a medical malpractice action in which this court found that a writ of mandamus was appropriate to compel the insurance commissioner to perform duties imposed by a statute that requires submission of a claim to the state treasurer on receipt of a certified copy of final judgment in excess of $100,000 for purposed of enforcement against the Patient’s Compensation , Fund. The commissioner’s statutoiy duties were found to be "purely ministerial.”).

      .This decision neither modifies nor erodes in any way the prior decisions of this court that require a legislative appropriation to fund a judgment in matters related to tort or •contract,

      -.. La. R.S. 47:1437(C) provides:
      In addition to the remedies provided for in this Section, or in any other applicable law, a final decision or judgment of die boarfi may also .be enforced in any manner provided by law for a final judgment of a district court. A writ of mandamus may also be issued, to enforce provisions of Subsection B of this Section relating to final judgments. [Emphasis added.]
      La. R.S, 47:1437(C) was recentiy added by the legislature to clarify the enforcement remedies in an overpayment refund proceeding. See 2016 La, Act 335, §§ 1 & 3, effective June 12, 2014. In pertinent part, Section 3 of Act 335 provides:
      The provisions of this Act amending R.S.... [47:]1437 are procedural and interpretative and shall be effective on the effective date of Act No, 640 of the 2014 Regular Session of the Legislature [eff. June 12, 2014][.]

      . See La. R.S. 47:1621(D)(1).

      . See La. Const. art. XII, § 10(C) ("no public property or public funds shall be subject to seizure”). Section 10(C) “is aimed at protecting the public fisc and seeks to avoid governmental priorities being upset by the payment of substantial money judgments.” Chamberlain, 624 So.2d at 883 (quoting Hargrave, 43 La. L. Rev. at 655).

      .See La. Const, art. VII, § 3(A).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE EX REL. Everett Charles WILLS, Jr. v. STATE of Louisiana
    No. 2016-KH-0812
    Supreme Court of Louisiana.
    05/26/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

| denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, the application is repetitive. La. C.Cr.P. art. 930.4.

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


text:
    STATE EX REL. Everett Charles WILLS, Jr. v. STATE of Louisiana
    No. 2016-KH-0041
    Supreme Court of Louisiana.
    05/26/2017
   PER CURIAM:

^Denied. Relator fails to a particularized need for the records that he seeks. State ex rel. Bernard v. Cr.D.C., 94-2247, p 1 (La. 4/28/95), 653 So.2d 1174, 1175.


text:
    STATE EX REL. Josie Y. MORGAN v. STATE of Louisiana
    No. 2016-KH-0035
    Supreme Court of Louisiana.
    8/04/2017
   PER CURIAM:

| denied. Relator fails to show she received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Her remaining claims are repetitive. La.C.Cr.P. art. 930.4.

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


text:
    STATE EX REL., Joe MILLER v. STATE of Louisiana
    No. 2016-KH-0477
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

|, Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694, As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court,, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claim is not cognizable on collateral review. See La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. We attach hereto and make a part hereof the court of appeal’s written reasons denying writs.

Relator has now fully litigated four applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts | ⅞251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Attachment


text:
    STATE EX REL. Rogers V. ATKINS v. STATE of Louisiana
    No. 2015-KH-2294
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF MOREHOUSE

PER CURIAM:

| t Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 980.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189; see also State ex rel. Fleury v. State, 93-2898 (La. 10/13/95), 661 So.2d 488. The application is also repetitive. La.C.Cr.P. art. 930.4.

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


text:
    STATE EX REL. Willie REED v. STATE of Louisiana
    No. 2016-KH-0470
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

11 Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art, 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator fails to show he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Wash ington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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


text:
    STATE EX REL. Jody D. HAMILTON v. STATE of Louisiana
    No. 2016-KH-0445
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TENTH JUDICIAL DISTRICT COURT, PARISH OF NATCHITOCHES

PER CURIAM:

| iDenied. Relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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


text:
    STATE EX REL. Ira MARSHALL v. STATE of Louisiana
    No. 2015-KH-2293
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

11 Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. We attach hereto and make a part hereof the district court’s written reasons denying relief.

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

Attachment


text:
    STATE EX REL. Benson CROON v. STATE of Louisiana
    No. 2016-KH-0606
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE

PER CURIAM:

| denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/6/95), 660 So.2d 1189.

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


text:
    STATE EX REL. Todd GROSSIE v. STATE of Louisiana
    No. 2016-KH-0439
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OP ST. MARTIN

PER CURIAM:

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

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


text:
    STATE EX REL. Hassan A. ABDUL, IV v. STATE of Louisiana
    No. 2016-KH-0323
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| denied. Relator’s claims regarding the sufficiency of the evidence and those related to his waiver of counsel are repetitive. La.C.Cr.P. art. 930.4. See also State v. Abdul, 11-0863 (La. App. 5 Cir. 4/24/12), 94 So.3d 801, writ denied sub nom. State ex rel Abdul v. State, 12-1224 (La. 10/12/12), 99 So.3d 41, and State ex rel. Abdul v. State, 12-1226 (La. 10/12/12), 99 So.3d 41. As to the remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2. In addition, many of the claims are not preserved for review by contemporaneous objection and relator cannot complain his self-representation was inadequate. Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2541, n.46, 45 L.Ed.2d 562 (1975); see also State v. Dupre, 500 So.2d 873, 878 (La. App. 1 Cir. 1986). We attach hereto and make a part hereof the district court’s written reasons denying relief.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P, art. 930.4 and within |2the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Attachment

After lengthy review of the díte reganWngiepresentaticm mide on appeal, the Court of Appeal finmd no oner by tte trial court, noting: Additionally, wo find that Ok »!iljudge did not abato fcn-clfjcreíton bytl- ■ lowing defendant to represent himtelf with the assurance ofoounael.-Dur-ing the Fartuta hearing, the trial Judge ascertained teat defendant knew the notare of the charges and the maximum penalties for th* ohnrgeo. The trial judge also advised defendant of the dangers and disadvantages of self-representation, and defendant indi catad that he understood them, [tradd!tion, the trial judge determined that defendant had a twelfth grade education, Ho responded uStaiwtivrfy when of hod if ha ws* positive tiiai ho wanted to represent MmselE ⅛ light of the foregoing, it appears olear that defendant?* waiver bf right to counsel was knowingly, intelligently, and voluntarily made, and tost toe assertion of the right to represent bhnself was olear and unequivocal. This assignment of error is without merit. Stats v, Abdul, 94 SoJd Sid. This court, Sitting in post-conviction review, finds that the petitioner has failed to meet his hurden of pioofi He his failed to prove deficient performance by counsel or that tpe rerosta would have been different, absent «tor* of counsel, The petitioner's Fourth Claim is denied. Claim Five to this claim, the petitioner contends that the trial judge erred in telling to declare a mistrial due to remarks made by a juror during hi* trial that vero dearly Usted and prejudicial. He specifically points to a juror disclosing a distant connection with & witness, Notably, the juror was questioned and Indicated under oaft that she oould be Impar-tía!. (⅜ p, 8(5). The state urges this court to find ⅛⅛ claim barred by application of post-conviction procedural rules. By statute, ifthe application alleges a claim ofwtrfeft toe petitioner had knowledge and inexcusably tested to ratee In toe proceedings leading to conviction, fee eourt shall deny relief. LSA-C,Cr,P. art. 930.4(0). The record clearly establishes that the Juror made her remarks in the bearing of the petitioner. The petitioner personally informed the trial Judge tot he was "okay" with the juror. (Tr., p. 91). The petitioner cannot now oonfcad he I» entitled to relief on a procedure he personally agreed to follow. He did not present tills Issue to the trial court in proceedings leading to conviction. Por ⅛⅛ reason, this claim I» barred by application of ÉSA-dCrí. art 930.4(B). Claim Six The next complaint raised is that the 911 tapes should have been excluded because itstoment violate* confientation clause, hearsay provisión*, and evidentiary rules prohibiting evidence of other crimes. The atare notos teat the petitioner felled to object to the atotesioa at these tapes during trial. Therefore, thrice the petitioner had knowledge of this claim, his failure to tais» It in th# proceeding» leading to conviction, warrants denial under LSA-C.CrJ?, art. 930.4(B). Th# court finds tot (Ms claim Is barred by application of iM-C.Cr,p. art 930.4(B). Claim Seven Vis petitioner next contends tot during prosecutor's closing and rebuttal argument, toe state argued frets not in evidence, improperly vouched tor an expert witness, Improperly inerted prosecutor's opinion, «nd ¡mpropody attacked the petitioner's character.


text:
    STATE EX REL. Bobby KIMBLE v. STATE of Louisiana
    No. 2016-KH-0433
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE

PER CURIAM:

h Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/6/95), 660 So.2d 1189.

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


text:
    STATE EX REL. Shannon SHINE v. STATE of Louisiana
    No. 2016-KH-0605
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF WEBSTER

PER CURIAM:

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

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second o.r successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930,4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Binika HANKTON v. STATE of Louisiana
    No. 2015-KH-2265
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

h Denied. Relator fails to show she received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relator’s remaining claims are repetitive. La.C.Cr.P. art. 930.4. We attach hereto and make part hereof the district court’s written reasons denying relief.

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

Attachment


text:
    STATE EX REL. Anthony RICHARDSON v. STATE of Louisiana
    No. 2016-KH-0830
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

| t Denied. Relator does not identify an illegal term in his sentence, and therefore his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. Relator’s sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. The application is also repetitive. La.C.Cr.P. art. 930.4. See State v. Richardson, 14-0754 (11/26/14), 155 So.3d 87, writ denied, 15-0105 (La. 11/6/15), 180 So.3d 306.

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


text:
    STATE EX REL. Melvin Lynn JOHNSON, Jr. v. STATE of Louisiana
    No. 2016-KH-0321
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

| ¶ Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. We attach hereto and make a part hereof the district court’s written reasons denying relief.

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

Attachment

I ¡.STATE OF LOUISIANA VERSUS MELVIN L. JOHNSON, JR.

NUMBER: 226,004

FIRST JUDICIAL DISTRICT COURT SADDO PARISH, LOUISIANA

OPINION

The Court has for consideration the Petitioner’s Uniform Application for Post-Conviction Relief filed on September 18, 2014. For the reasons stated below the Petitioner’s motion is DENIED.

On August 20, 2003, Petitioner, present with counsel, was found guilty by jury of Armed Robbery. Whereupon, Petitioner was adjudicated a third felony habitual offender and sentenced to life imprisonment at hard labor and committed to the Louisiana Department of Corrections, subject to the conditions provided by law. The Court ordered said sentence served without benefit of probation, parole, or suspension of sentence with credit for time served.

On appeal, the Court of Appeal, Second Circuit affirmed Petitioner’s conviction, but set aside the habitual offender adjudication and remanded to give the State an opportunity to demonstrate the voluntariness of the guilty plea in a predicate offense. State v. Johnson, 38,927 (La.App. 2d Cir. 11/23/04), 887 So.2d 751. On remand, the State abandoned the Petitioner’s Texas robbery plea as a predicate offense. The District Court adjudicated Petitioner a second felony offender on the basis of evidence produced at the original habitual offender hearing and imposed a sentence on February 2, 2005. Petitioner pled guilty to being a second felony habitual offender and was resentenced to be confined at hard labor for a period of seventy (70) years and committed to the Louisiana Department of Corrections, subject to the conditions provided by law. The Court ordered said sentence served without benefit of probation, parole, or suspension of sentence with credit for time served. Further, the Court ordered court costs paid or in default thereof, to serve one (1) day in the parish jail to run concurrently with any other sentence.

Petitioner is now before this Court with a Uniform Application for Post-Conviction Relief. In said application, Petitioner asserts one claim for relief.

According to La. C.Cr.P. Art. 930.8, “no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two (2) years after the judgment of conviction and sentence has become final”, unless certain circumstances exist. None of the considered circumstances exist in the case at bar. In the present case, Petitioner’s sentence and conviction became final on February 2, 2005. The current Motion |awas not filed until September 18, 2014, slightly over nine (9) years later. Due to Petitioner failing to set forth any of the circumstances that would exempt him from the two (2) year time limitation pursuant to Art. 930.8, his Application for Post-Conviction Relief is DENIED.

Louisiana Code of Criminal Procedure article 930.4 D provides, “a successive application may be dismissed if it fails to raise a new or different claim.” The Petitioner claims a Brady violation with regard to the credibility of the evidence presented at trial. However, the Petitioner does not advance such information qualifying as an exception to the two-year time limitation for seeking post-conviction relief. In such, this claim has been addressed and is DENIED due to its repetitive nature.

Therefore, the Petitioner’s Uniform Application for Post-Conviction Relief filed on September 18, 2014 is DENIED.

The Clerk of Court is directed to provide a copy of this Opinion to the Petitioner, his custodian, and the District Attorney.

OPINION RENDERED, READ, AND SIGNED this 6 day of August, 2015.

l§¿ JOHN MOSELY, JR. DISTRICT JUDGE

SERVICE INFORMATION:

Melvin Lynn Johnson, Jr. # 130744

Camp J. Gator 3-Right-10

Louisiana State Prison

General Mail

Angola, Louisiana 70712

Caddo Parish District Attorney’s Office


author: PER CURIAM;

text:
    STATE EX REL. Thomas ALLEN, III v. STATE of Louisiana
    No. 2016-KH-0428
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROÜGE

PER CURIAM;

| denied. Relator fails to show he was denied the effective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition, relator’s sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172.

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


text:
    STATE EX REL. Jonathan HAMPTON v. STATE of Louisiana
    No. 2016-KH-0827
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE THIRTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF ST. BERNARD

PER CURIAM:

11 Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4. See State ex rel. Hampton v. State, 11-1398 (La. 3/30/12), 85 So.3d 107.

Relator has now fully litigated at least two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out' in La. C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to. make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral |2review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Tyrone MITCHELL v. STATE of Louisiana
    No. 2015-KH-2263
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF VERMILION

PER CURIAM:

h Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Relator’s remaining claims are repetitive. La.C.Cr.P. art. 930.4.

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


text:
    STATE EX REL. Nathan PETTUS v. STATE of Louisiana
    No. 2016-KH-0604
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

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

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art, 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral |2review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Levar E. DAVENPORT v. STATE of Louisiana
    No. 2016-KH-0814
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

| denied. Relator does not identify an illegal term in his sentence, and therefore his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694, Relator’s sentencing claims and his claim of ineffective assistance of counsel at sentencing are not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030; State v. Thomas, 08-2912 (La. 10/16/09), 19 So.3d 466.

Relator has now fully litigated an application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that |2one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL., DeMarcus W. LAW v. STATE of Louisiana
    No. 2016-KH-0427
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TENTH JUDICIAL DISTRICT COURT, PARISH OF NATCHITOCHES

PER CURIAM:

1 jDenied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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


text:
    STATE EX REL. Gregory REAUX v. STATE of Louisiana
    No. 2015-KH-2243
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY

PER CURIAM:

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


text:
    Herbert C. COWART v. AMERADA HESS CORPORATION, et al.
    NO. 2017-CC-1110
    Supreme Court of Louisiana.
    July 4, 2017
   h Stay denied. Writ denied.

GENOVESE, J., would grant the application and order the district court to continue the hearing on plaintiffs motion for summary judgment in order to give relator an opportunity to conduct adequate discovery. See La. Code Civ. P. art. 966(A)(3).


author: HIGGINBOTHAM, J.

text:
    Ricky CARTHAN v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2016 CA 1378
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 2, 2017

      Ricky Carthan, Angola, LA, Plaintiff-Appellant, In Proper Person
    Terri L. Cannon, Angola, LA, Attorney for Defendant-Appellee, Louisiana Department of Public Safety and Corrections
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ. '
   HIGGINBOTHAM, J.

laThis appeal challenges whether the district court properly dismissed an inmate’s petition for judicial review of a disciplinary action for lack of subject matter jurisdiction because the inmate failed to exhaust his administrative remedies prior to filing suit.

BACKGROUND

The plaintiff, Ricky Carthan, is an inmate in the custody of the Louisiana Department of Public Safety and Corrections (“DPSC”), and is incarcerated in the Louisiana State Penitentiary (“LSP”) at Angola. In a July 29, 2014 disciplinary report, the DPSC charged Carthan with theft, a violation of Rule 22 of the DPSC Disciplinary Rules and Procedures for Adult Offenders (“Disciplinary Rules”), for allegedly admitting to possessing ten pounds of uncooked sausage that had been found within Carthan’s work area and within his immediate control. At a hearing before the Disciplinary Board on July 31, 2014, Car-than pled not guilty and denied both the credibility of the accusing officer and the contents of the disciplinary report. Additionally, the Disciplinary Board denied several of Carthan’s motions where he sought copies of LSP’s kitchen inventory and “pull-sheet,” as well as a picture of the purported stolen sausage. The Disciplinary Board found Carthan guilty of theft and imposed a sentence that included a change in custody from minimum to medium security and restitution in the amount of $10.80 for the stolen sausage.

Carthan timely appealed the Disciplinary Board decision to the LSP Warden, which was accepted and assigned for review on August 25, 2014. In his appeal to the Warden, Carthan argued that he was' denied his right to present available evidence on his behalf and as a result, his due process rights had been violated at the Disciplinary Board hearing. On September 24, 2014, Carthan was notified that a response to his appeal would be delayed beyond the thirty-day period required by the Disciplinary Rules. However, before the Warden issued a decision on Carthan’s [3appeal, Carthan filed a petition for judicial review in the Nineteenth Judicial District Court (19th JDC) on January 29, 2015. In his petition, Carthan sought ex-pungement of the theft charge from his disciplinary record, a reinstatement of his privileges, and a refund of the restitution amount, alleging that he was entitled to that relief because the Warden had failed to issue a timely decision regarding his pending appeal as mandated by the Disciplinary Rules.

On April 7, 2015, the Warden issued a written decision denying Carthan’s appeal, finding no merit to Carthan’s arguments and concluding that Carthan had failed to refute the theft charge. Carthan acknowledged receipt of the Warden’s appeal decision on April 15, 2015, but the appellate record before us does not clearly reveal whether Carthan appealed the decision of the Warden to the DPSC Secretary, as required by the Disciplinary Rules. The record contains two copies of the Warden’s decision, with one copy devoid of any indication that Carthan was dissatisfied with the result, and a second copy signed and checked by Carthan on April 15, 2015, indicating that he desired an appeal to the Secretary. However, the record does not contain any ruling or action, pending or otherwise, taken by the Secretary.

Four months after the Warden’s decision was issued, Carthan filed a motion in the district court, requesting that the DPSC show cause why his petition for judicial review should not be granted. The Commissioner of the 19th JDC issued a mandamus service order on September 4, 2015, ordering that a copy of Carthan’s petition be served on the DPSC. The DPSC responded by filing a motion to dismiss Carthan’s petition for judicial review due to Carthan’s acknowledged failure to exhaust administrative remedies. Carthan filed an objection to the DPSC’s motion to dismiss, arguing that the DPSC had not notified him of any need of an extension for the Warden’s thirty-day appeal response period.

^Approximately five months later, Car-than requested a status conference in the district court. At that point, the Commissioner for the 19th JDC issued a screening report on April 21, 2016, recommending that the DPSC’s motion to dismiss be granted, and Carthan’s petition be dismissed without prejudice for lack of subject matter jurisdiction, based on Car-than’s failure to exhaust administrative remedies. Carthan filed a traversal, but the district court rendered judgment on May 31, 2016, adopting the Commissioner’s recommendation and dismissing Car-than’s petition in accordance with La. R.S. 15:1172(C). Carthan appeals, arguing that the district court erred in deciding that it did not have subject matter jurisdiction in this case, because the Warden did not respond to his administrative appeal within the delays allowed by the DPSC’s procedural rules and thus, he should be considered to have exhausted his administrative remedies.

DISCUSSION

The DPSC has promulgated rules for the handling of prisoner disciplinary matters entitled Disciplinary Rules and Procedures for Adult Offenders, found in Title 22, Part 1, Sections 341 et seq,, of the Louisiana Administrative Code (“LAC”). The Disciplinary Rules provide certain procedural requirements for appeals of decisions issued by the Disciplinary Board, which is also referred to as the “high court.” See LAC 22:1.341(H). The Disciplinary Rules mandate that “[a]ll appeal requests on high court cases shall be to the [Wjarden” and the Warden “will decide all appeals within 30 calendar days of the date of receipt of the appeal and the offender will be promptly notified in writing of the results (unless circumstances warrant an extension of that time period and the offender is notified accordingly).” | SLAC 22:1.341(H)(l)(b)(i) and (iv). Further, when an inmate is dissatisfied with the Warden’s appeal decision, another administrative step is necessary by “appeal [of] the decision of the [W]arden to the [Secretary and [the inmate] must indicate that he is ‘not satisfied’ in the appropriate box on the appeal decision form.” LAC 22:1.341 (H)(1)(c)®. In addition, “appeals regarding restitution assessments may be submitted to the [Secretary ... [and] [t]he appeal of such assessments must be submitted in accordance with established policy and procedures.” LAC 22:1.341(H)(l)(c)(viii).

The record reveals that Carthan timely submitted an appeal of the Disciplinary Board decision to the Warden, which was accepted on August 25, 2014. On September 24, 2014, Lieutenant L. Roblin, of the “Disciplinary Appeals” section of the “Legal Programs” at LSP sent a letter to Carthan, stating:

Please be advised that the above referenced [Warden] appeal has been received. However, the response in the captioned appeal has been delayed beyond the thir[t]y day period. The appeal will be rev[ie]wed and you will receive a response as soon as possible. I regret the delay. Be assured that this office is doing everything possible to expedite the response.
This notice is being provided to you in accordance with page 13 of the DISCIPLINARY RULES AND PROCEDURES FOR ADULT OFFENDERS, AUGUST 2013.

[Emphasis added.]

Carthan does not actually dispute receipt of the delay notice, but he mistakenly identifies the date of the notice as September 24, 2015. Carthan contends that because he did not receive the Warden’s response within the thirty-day time period contained in the Disciplinary Rules, he should be considered as having exhausted his administrative remedies, thus entitling him to judicial review.

The record clearly reflects, however, that Carthan was timely notified of the delay on September 24, 20U, not 2015. Therefore, when Carthan filed his petition for judicial review on January 29, 2015, before the Warden issued a decision on | April 7, 2015, he had obviously not exhausted his administrative remedies. Furthermore, this court recognized in Moreau v. Louisiana Dept. of Public Safety and Corrections, 2007-1430 (La.App. 1 Cir. 2/8/08), 2008 WL 426477, *2 (unpublished), that the Disciplinary Rules do not allow provision for an inmate to automatically move on to judicial review at the expiration of any particular time limit where a disciplinary action has been initiated by prison officials, rather than a grievance process that is instituted by an inmate. See also Simmons v. Louisiana Dept. of Public Safety and Corrections, 2015-0676 (La.App. 1 Cir. 11/6/15), 2015 WL 6872489, *3 (unpublished).

Additionally, the Louisiana Legislature has unambiguously decreed that “[i]f at the time the petition [for judicial review] is filed the administrative remedy process is ongoing but has not yet been completed, the suit shall be dismissed without prejudice.” [Emphasis added.] La. R.S. 15:1172(C). Carthan failed to complete the administrative remedy appeal process provided to him within the DPSC’s Disciplinary Rules and the Corrections Administrative Remedy Procedure, La. R.S. 15:1171 et seq., prior to filing his petition for judicial review. Therefore, the district court correctly dismissed his petition.

CONCLUSION

For the stated reasons, the district court’s May 31, 2016 judgment is hereby affirmed. Costs of this appeal are assessed against appellant, Ricky Carthan. .

AFFIRMED.

      . The office of Commissioner of the 19th JDC was created, in part, to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. See La. R.S. 13:713(A).

      . The Disciplinary Rules were amended in December 2013 and May 2014, and were re-promulgated in June 2014. Because Carthan's alleged offense and the disciplinary proceedings at issue took place in July 2014, we cite the version of the rules as they existed at that time.

      . An administrative remedy procedure is the exclusive remedy for disposing of complaints by inmates against the DPSC that arise while the inmate is within the custody or under the supervision of the DPSC. See La. R.S. 15:1172. See also Hull v. Stalder, 2000-2730 (La.App. 1 Cir. 2/15/02), 808 So.2d 829, 831-32.


text:
    STATE of Louisiana v. Keith JOSEPH
    NO. 2016 KA 1541
    Court of Appeal of Louisiana, First Circuit.
    JUNE 2, 2017
    Richard Ward, District Attorney, Dana Larpenteur, Assistant District Attorney, Plaquemine, LA, Attorneys for State. of Louisiana
    Jane Beebe, New Orleans, LA, Attorney for Defendant-Appellant, Keith Joseph
    Keith Joseph, Farmerville, LA, In Proper Person
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

|2The defendant, Keith Joseph, was charged by bill of information with three counts óf attempted second degree murder (counts 1-3), violations of La. R.S. 14:27 and 14:30.1; illegal possession of stolen firearms (count 4), a violation of La. R.S. 14:69.1(A); and possession of a firearm by a convicted felon (count 5), a violation of La. R.S. 14:95.1. He pled not guilty to all counts. Prior to trial, the defendant withdrew his not guilty pleas and, at a Boy-kin hearing, entered an Alford plea to aggravated battery on count 1, a violation of La. R.S. 14:34; and an Alford plea to second degree battery on count 2, a violation of La. R.S. 14:34.1.' The State dismissed counts 3, 4, and 5. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The defendant’s pleas were also entered pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). For the aggravated battery conviction, the defendant was sentenced to four years- imprisonment at hard labor. For the second degree battery conviction, the defendant was sentenced to five years imprisonment at hard labor; the five-year sentence was suspended and the defendant .was placed on'five years of supervised probation. The defendant now appeals, asserting one pro se assignment of error.

FACTS

The following facts were provided by the prosecutor at the Boykin hearing:

On or about June 18, 2012, in Iberville Parish Mr. Keith Joseph did participate with a one, Gabriel King,, in. the discharge of a firearm striking a Calvin Trice resulting in Count 1 the aggravated battery on Calvin Trice.
Second count, the State would intend to prove that Keith Joseph did participate with a one, Gabriel King, in the firing of a weapon that did strike, a Ron Alexander resulting in the charge of seer ond degree battery.
Mr. Keith Joseph’s cases both have been amended to be as principal to those actions.

' | ffISSUES PRESENTED

Defense counsel has filed a motion to -withdraw from the case. In accordance with the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam); and State v. Benjamin, 573 So 2d 528 (La. App. 4th Cir. 1990), defense counsel has filed a supporting brief to the motion to withdraw arguing that, after a conscientious and thorough review of the record, she has found no non-frivolous issues for appeal and no ruling of the trial court that arguably supports an appeal.

Defense counsel has notified the defendant of the filing of this motion and informed him of his right to file a pro se supplemental brief on his own behalf. The defendant has filed a pro se “motion” with this court.

In his sole pro se assignment of error, the defendant argues appellate ineffective assistance of counsel, The defendant suggests appellate counsel’s filing of the instant Anders brief constitutes ineffective assistance of counsel. According to the defendant, appellate counsel “did not get any pertinent documents to go along with the appeal.” The defendant contends that everything needed for this appeal are those documents under a writ previously filed by him, namely State v. Joseph, 2016-0661 (La. App 1st Cir. 6/27/16) (unpublished writ), wherein this court granted the writ and remanded to the district court to enter an order of appeal. The defendant suggests these documents clearly support his claim of the State’s failure to timely commence trial within two years of the filing of the bill of information. See La. Code Crim. P. art. 578. Accordingly, the defendant in this pro se “motion” asks for “an attorney who will really make a conscientious and thorough review of the record.”

I ¿Under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Washington, 491 So.2d 1337 (La. 1986), a conviction must be reversed if the petitioner proves (1) that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. State v. Legrand, 2002-1462 (La. 12/3/03), 864 So.2d 89, cert. denied, 544 U.S. 947, 125 S.Ct. 1692, 161 L.Ed.2d 523 (2005). To be successful in arguing ineffective assistance of counsel, a post-conviction petitioner must prove deficient performance to the point that counsel is not functioning as counsel within the meaning of the Sixth Amendment. A petitioner must also prove actual prejudice to the point that the results of the trial cannot be trusted. It is absolutely essential that both prongs of the Strickland test must be established before relief will be granted by a reviewing court. State ex rel. Sparkman v. State, 2015-1726 (La. 10/17/16), 202 So.3d 488, 491 (per curiam).

In reviewing claims of ineffective assistance of counsel on direct appeal, the Supreme Court of the United States has expressly observed that appellate counsel need not advance every argument, regardless of merit, urged by the defendant. Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). The Court gives great deference to professional appellate strategy and applauds counsel for winnowing out weaker arguments on appeal and focusing on one central issue if possible, and at most a few key issues. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed,2d 987 (1983). This is true even where the weaker arguments have merit. Id., 463 U.S. at 751-52, 103 S.Ct. at 3313. See Sparkman, 202 So.3d at 491.

When the claim of ineffective assistance of appellate counsel is based on failure to raise the issue on appeal, the prejudice prong of the Strickland test requires the petitioner to establish that the appellate court would have granted relief, had the | ¿issue been raised. United States v. Phillips, 210 F.3d 345, 350 (5th Cir. 2000). See Sparkman, 202 So.3d at 491.

The defendant was charged by bill of information with one count of attempted first degree murder of two people on August 15, 2012. In a superseding bill of information filed on April 4, 2014, the defendant was charged with three counts of attempted second degree murder, illegal possession of stolen firearms, and possession of a firearm by a convicted felon. Each victim in the single count in the first bill of information was separated out into the first two counts in -the new bill of information. A new third victim was added in count three of attempted second degree murder in the new bill of information.

At the Boykin hearing on January 4, 2016, in exchange for defendant’s guilty pleas, the State, agreed to dismiss several charges, nol-prossed counts 3, 4, and 5. The State also agreed to reduce counts 1 and 2 to aggravated battery and second degree battery, respectively. Before pleading guilty, both under Alford and Crosby, the defendant sought to have his pro se motion to quash the bill of information (on the grounds that the time limitations for commencement of trial had expired) addressed by the court. The trial court agreed and conducted a hearing on the motion to quash. The trial court found that since the new bill of information was filed April 4, 2014, the State had two years from that date, or until April 4, 2016, to bring the matter to trial. Accordingly, the trial court denied the motion to quash.

The trial court’s ruling on the defendant’s pro se motion to quash was correct. Under La. Code Crim. P. art. 578(2), no trial shall be commenced in (non-capital) felony cases after two years from the date of institution of the prosecution. While the original bill of information (docket no. 635-12A) was filed on August 15, 2012, a superseding bill of information with a new docket number (291-14A) was filed on April 4, 2014. See State v. Love, 2000-3347 (La. 5/23/03), 847 So.2d 1198, 1202-07; State v. Freeman, 37,312 (La. App. 2nd Cir. 7/16/03), 850 So.2d 1088, writ denied, 2003-2466 (La. 2/6/04), 865 So.2d 740. At a pretrial hearing on September 18, 2014—the date the defendant was re-arraigned and pled not guilty to the new charges in the new bill of information—the prosecutor specifically noted to the trial court that it was entering “a nolle pros in docket number in 635-12AD.” The trial court affirmed this, “The old one and substituted the new one.” The prosecutor responded, “Correct,” and defense counsel responded, “We acknowledge that. Thank you.”

Moreover, even if the newly filed bill of information was not considered a superseding bill, commencement of trial (had there been a trial) would still have been timely under La. Code Crim. P. art. 578. When the second bill of information was filed on April 4, 2014, the State had over four months to commence trial (since the first bill was filed on August 15, 2012), or until August 15, 2014. The minutes of the record indicate that on the following dates, on motion of defense counsel, the trial court ordered the matter to be continued: June 5, 2014; September 30, 2014; April 30, 2015; and July 14,2015.

La. Code Crim. P. art. 580(A) provides: When a defendant files a motion, to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.

For purposes of La. Code Crim. P. art. 580, a preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial. These pleadings include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. Joint motions for a continuance fall under the same rule. State v. Brooks, 2002-0792 (La. 2/14/03), 838 So.2d 778, 782 (per curiam). Accordingly, each time the trial court in the instant matter ruled on defense counsel’s motion for continuance, the State had either the remainder of the time limitations under La. Code Crim. P. art. 578 or a Uminimum period of one year from the date of the ruling in which to commence trial, whichever time was longer. See State v. Lathan, 41,855 (La. App. 2nd Cir. 2/28/07), 953 So.2d 890, 894, writ denied, 2007-0805 (La. 3/28/08), 978 So.2d 297. See also State v. Cranmer, 306 So.2d 698, 700 (La. 1975); La. Code Crim. P. art. 580, Official Revision, comment (a).

Here, the initial prosecution, instituted on August 15, 2012, would have prescribed on August 15, 2014, had there been no suspension of the prescriptive period. However, the trial court granted several motions for continuance, the last of which was granted on motion of defense counsel on July 14, 2015. Thus, at this point, the State had until July 14, 2016 to commence trial. The defendant forwent a trial however, and chose to plead guilty to reduced-charges on January-14, 2016. Accordingly, his trial would have been timely commenced. See State v. Marshall, 99-2884 (La.App. 1st Cir. 11/8/00), 808 So.2d 376, 378-80; State v. Simpson, 506 So.2d 837, 838-39 (La. App. 1st Cir.), writ denied, 512 So.2d 433 (La. 1987).

The trial court properly denied the defendant’s pro se motion to quash. The trial, had there been one, would have commenced well within a year of the trial court’s last ruling on a defense motion. See Simpson, 506 So.2d at 838-39. Accordingly, because there was no violation of the defendant’s statutory or constitutional right to a speedy trial, see Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972), the filing of the instant Anders brief by appellate counsel, Jane L. Beebe, did not constitute ineffective assistance of counsel. This pro se assignment of error is without merit.

This court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appeal record. The der fendant was properly charged by bill of information with three counts of attempted second degree murder (counts 1—3), violations of La. R.S. 14:27 and 14:30.1; illegal possession of stolen firearms (count 4), a violation of La. R.S. 14:69.1(A); and [^possession of a firearm by a convicted felon (count 5), a violation of La. R.S. 14:95.1. The bill of information was signed by the Assistant District Attorney. The defendant was present and represented by counsel at arraignment, the guilty plea hearing, and sentencing. The sentences imposed are legal in all respects. See Benjamin, 573 So.2d at 531.

The only issue presented by defense counsel is whether the record reveals patent error under La. Code Crim. P. art. 920(2). This court routinely reviews the record for such errors, whether or not such a request is made by a defendant or defense counsel. Under La. Code Crim. P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible errors. See State v. Price, 2005-2514 (La.App. 1st Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.

Our independent review reveals no non-frivolous issues which, arguably support this appeal. Accordingly, the defendant’s convictions and. sentences are affirmed. Defense counsel’s motion to withdraw is hereby granted.

CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED.

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

      . In State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam), the Louisiana Supreme Court sanctioned the procedures outlined in Benjamin for use by the appellate courts of Louisiana. See Jyles, 704 So.2d at 241,