author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Coby Quinton CEASAR aka Coby Quinton Ceaser
    16-824
    Court of Appeal of Louisiana, Third Circuit.
    July 12, 2017

      John F. DeRosier, 14th Judicial District Court, District Attorney, P. 0. Box 3206, Lake Charles, LA 70602-3206, (337) 437-3400, COUNSEL FOR PLAINTIFF/RESPONDENT: State of Louisiana

      Coby Quinton Ceasar, Louisiana State Penitentiary, 613641, Oak-1, Angola, LA 70712, PRO SE: Coby Quinton Ceasar
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   SAUNDERS, Judge.

|T Relator, Coby Quinton Ceasar, was convicted of second degree murder in the July 28, 2010 shooting death of his stepfather, Patrick Myles, Sr. This court affirmed Relator’s conviction finding the state presented sufficient evidence to meet its burden of showing Relator did not act in self-defense. State v. Ceasar, 14-141 (La. App. 3 Cir. 10/1/14), 149 So.3d 301, writ denied, 14-2228 (La. 8/28/15), 175 So.3d 961. Relator filed an application for post-conviction relief in the trial court which the trial court denied on September 19, 2016. Relator contends the trial court erred in its treatment of the issues raised therein.

ASSIGNMENT OF ERROR NO. 1:

Relator contends that the trial court erred in failing to address his claim regarding prosecutorial misconduct because it was outside the purview of La. Code Crim.P. art. 930.3 which sets forth the grounds for post-conviction relief. Relator raises numerous examples of what he alleges was prosecutorial misconduct at his trial. First, Relator claims that during his opening statement, the prosecutor told the jury that the victim was a good man and that his vouching for the victim’s character prejudiced Relator. Additionally, Relator contends the prosecutor misrepresented the facts of the case to the jury in his opening statement. Next, Relator claims the prosecutor failed to correct false testimony of a witness, testimony known by the prosecutor to be false. Relator also claims the trial court erred in allowing the prosecutor to question Relator’s mother as a hostile witness. Essentially, Relator claims the prosecutor misrepresented facts at trial to present a false-positive image of the victim and a negative image of Relator to the jury in order to incite their prejudice against Relator.

IgThe trial court denied Relator’s claims of prosecutorial misconduct as not falling within the purview of La.Code Crim.P. art. 930.3. Louisiana Code of Criminal Procedure Article 930.3 provides, in pertinent part:

If the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds:
(1) The conviction was obtained in violation of the constitution of the United States or the state of Louisiana!/]

In State v. Ortiz, 11-2799, p. 7 (La. 1/29/13), 110 So.3d 1029, 1034, cert. denied, — U.S. —, 134 S.Ct. 174, 187 L.Ed.2d 42 (2013), the supreme court stated:

Grounds for post-conviction relief in Louisiana are primarily restricted to constitutional or jurisdictional violations, La.C.Cr.P. art. 930.3, and “the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor ... the aim of due process ‘is not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused.’ ” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963)).

Likewise, this court has stated, “the ... assignment, involving prosecutorial misconduct, should properly be raised in an application for post-conviction relief.” State v. Kendrick,, 96-1636, p. 18 (La.App. 3 Cir. 6/25/97), 699 So.2d 424, 434, writ denied, 98-2159 (La. 12/18/98), 731 So.2d 280.

Thus, we find that the trial court erred in failing to consider Relator’s claims regarding prosecutorial misconduct raised in his application for post-conviction relief. As such, Relator’s writ application as to this claim is granted, and the case is remanded to the trial court for consideration and ruling thereon.

ASSIGNMENT OF ERROR NO. 2:

Relator claims the trial court erred in denying his claim of ineffective assistance of counsel that resulted when his attorney prevented him from testifying at trial after hearing the prosecutor’s threat to introduce investigative reports about sexual abuse allegations against Relator. Relator claims his attorney made the Indecision that Relator would not testify, a decision that Relator alone had the authority to make.

In support of his claim, Relator points to a transcript excerpt from an objection raised at trial during the testimony of the victim’s estranged wife, Linda Myles. When defense counsel asked Ms. Myles whether she knew of the victim’s criminal record, the prosecutor objected. During the course of the ensuing colloquy about the victim’s prior bad acts/crimes, defense counsel mentioned his desire to present evidence of a child protection investigation stemming from the victim hitting Relator in the face with a belt. The prosecutor responded that the State could then present information that Relator sexually abused people living in the house with him and that it could provide reports, opening up the “whole can of worms.” To this, defense counsel responded, “Not if my client doesn’t testify.”

The trial court found that counsel’s suggestion that Relator not testify falls within the scope of trial strategy. Further, the trial court found that Relator did not show that his counsel’s actions were unreasonable or that he was prejudiced by thereby. Accordingly, the trial court found that Relator failed to meet the burden of proof set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The defendant’s claim of ineffective assistance of counsel is to be assessed by the two part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). The defendant must show that counsel’s performance was deficient and that he was prejudiced by the deficiency. Counsel’s performance is ineffective when it can be shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed to the defendant by the Sixth Amendment. Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but | ¿for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra, 466 U.S. at 693, 104 S.Ct. at 2068. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992).
This Court has recognized that if an alleged error falls “within the ambit of trial strategy” it does not “establish ineffective assistance of counsel.” State v. Bienemy, 483 So.2d 1105 (La. App. 4 Cir.1986). Moreover, as “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” State v. Brooks, 505 So.2d 714, 724 (La.1987).
State v. Griffin, 02-1703, pp. 8-10 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40, writ denied, 03-809 (La. 11/7/03), 857 So.2d 515.

State v. Anderson, 13-42, pp. 9-10 (La.App. 3 Cir. 7/3/13), 116 So.3d 1045, 1052, writ denied, 13-1806 (La. 5/16/14), 139 So.3d 1019.

We find that the excerpt from the trial transcript relied upon by.Relator fails to prove that his attorney prevented him from testifying at trial. Further, Relator fails to allege how he was prejudiced by his failure to testify at trial. Thus, this claim has no merit and was properly denied by the trial court.

ASSIGNMENT OF ERROR NO. 3:

Relator asserts the trial court erred in concluding he was not denied the assistance of counsel at his arraignment. Relator claims that although he waived his attorney’s presence at his November 22, 2010 arraignment, he did not do so voluntarily, knowingly, or intelligently which was required because arraignment is a critical stage of the proceedings.

The trial court denied Relator’s claim on the grounds that he failed to state a claim upon which relief could be granted, noting that Relator’s claim was factually | [¡incorrect. The trial court noted that the court minutes of November 22, 2010, show Relator waived counsel’s presence for arraignment.

The court minutes dated October 25, 2010, reflect that Relator appeared without counsel. The prosecutor advised the trial court that Relator was represented by Charles St. Dizier. Relator requested the presence of counsel for arraignment; thus, arraignment was refixed for November 22, 2010. On that date, November 22, 2010, Relator appeared via audio-visual transmission. Again, the prosecutor informed the court that Relator was represented by Mr. St. Dizier. After questioning by the court, Relator waived his attorney’s presence for purposes of arraignment only, tendered a plea of not guilty, and requested a trial by jury. Court minutes dated March 7, 2012, reflect that the court appointed the Public Defender’s Office to represent Relator. On March 19, 2012, the court relieved Mr. St. Dizier of his appointment and appointed the Public Defender’s Office to represent Relator. Relator was subsequently represented at trial and sentencing by attorney Michael McHale.

In State v. Tarver, 02-973 (La.App. 3 Cir. 3/12/03), 846 So.2d 851, writ denied, 03-1157 (La. 11/14/03), 858 So.2d 416, the defendant was present for arraignment without counsel and entered pleas of not guilty. At the end of the proceeding, the court indicated that the defendant had previously been appointed counsel. There was no indication that the defendant waived counsel’s presence at the arraignment. Before this court was the issue of whether the defendant’s arraignment was a critical stage requiring the presence of counsel. In concluding that it was not, this court stated:

Arraignment under Louisiana law is limited in function. In State v. Obey, 193 La. 1075, 192 So. 722 (1939), the defendant raised a similar issue and complained the record failed to show the defendant’s counsel was present at the arraignment or that his presence was waived by the defendant. The supreme court stated:
[ (lUnder the provisions 'Of Article 256 of the Code of Criminal Procedure if a defendant voluntarily enters on the trial without arraignment it shall be considered as if he had pleaded not guilty. There is nothing in the record to show the defendant objected to going to trial. State v. Harper, 172 La. 1067, 136 So. 54.
Id. at 724.
La.Code Crim.P. art. 555 stems from former La.Code Crim.P. art. 256 and provides:
Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.
La.Code Crim.P. art. 516 provides:
When a defendant has pleaded at the. arraignment without counsel, counsel subsequently appointed or procured before trial shall be 'given a reasonable time within which to withdraw any motion, plea, or waiver made by the defendant, and to enter any other motion or plea.
The comments of La.Code Crim.P. art. 516 indicate this article codified the jurisprudential rule set forth in State v. Lyons, 180 La. 158, 156 So. 207 (1934). In Lyons, the defendant asserted the trial court failed to appoint counsel to defend him before he was arraigned. Counsel argued article 143 of the Code of Criminal Procedure provided that in capital cases, the accused was entitled to the assistance of counsel before arraignment and at every stage of the prosecution. The supreme court affirmed the trial court’s ruling which denied reversal of the defendant’s conviction on this basis. The supreme court, quoting the trial court, stated in pertinent part:
’The accused was ably defended, received a fair and impartial trial, and the mere failure of the court to have appointed counsel prior to his arraignment, when no application had been made therefor by him, and more particularly when learned counsel was appointed immediately following arraignment, and afforded more than a ■reasonable.time to prepare their defense, constitutes no error which in my judgment is sufficient in law to arrest the judgment in this case.
Id. at 210.
In State v. Rose, 271 So.2d 863 (La. 1973), the defendant complained counsel was not present at arraignment. The supreme court conceded that the minutes were.silent as to whether counsel was present at the defendant’s arraignment, but found no error because the defendant entered a plea .of not guilty, and, pursuant to La.Code Crim.P. art. 516, counsel could have withdrawn his plea and'entered any other motion or plea at a later time..
In Louisiana, there is no confrontation of witnesses or presentment of evidence at arraignment. Additionally, available defenses are not lost if not pled at arraignment. For example, La.Code Crim.P. art. 561 provides that a “defendant may withdraw a plea of ‘not guilty and enter a plea of ‘not .guilty and not guilty by reason of insanity,’.within ten days after arraignment. Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of the trial?’ (Emphasis added). La.Code Crim.P. art. 726 which permits a defendant, who intends to introduce testimony relating t.o a mental disease, defect, or other condition bearing upon the issue of his mental state required for the offense charged, to notify the district attorney of, such intention no later than ten days prior to trial or such reasonable time as the court may permit. Moreover, motions to quash are required to be filed after arraignment. See La.Code Crim.P. arts. 521 and 535. Therefore, the present case is distinguishable from Hamilton [v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) ].
Further, the present case is distinguishable from [State v.] Fraychineaud [620 So.2d 338 (La.App. 5 Cir.1993) ]. Fraychineaud was not represented by an attorney at arraignment or at trial and the court found reversible error. The court did not distinguish whether it would have reached the same result if the attorney had not been present at arraignment but had been present at the trial. In this case, the Defendant had appointed counsel at the time of arraignment. The record indicates that on August 29, 2001, the trial court ordered no bond be set and referred the case to the Indigent Defender Board. The day after arraignment, November 6, 2001, the Defendant’s appointed counsel filed a Motion for Discovery and Inspection and Motion for Bill of Particulars. On January 2, 2002, the Defendant’s counsel requested discovery and a fifteen day extension to file any motions. Moreover, he also participated in all phases of the trial and sentencing.
Consequently, arraignment was not a critical stage requiring the presence of counsel.

Tarver, 846 So.2d at 856-58 (footnote omitted).

IsSimilarly, in the present case, arraignment was not a critical stage of the proceedings. Tarver, 846 So.2d 851. As in Tarver, Relator entered a plea of not guilty, and he was subsequently represented by counsel at trial and sentencing. Accordingly, this claim has no merit.

We note that in Relator’s trial court application, he asked for a copy of the colloquy (transcript) of the arraignment, so he could supplement his claims if necessary. As Relator notes in his application to this court, this request was not addressed by the trial court. It is not necessary to grant Relator’s request for the transcript at this point, as we find that the arraignment was not a critical stage of the proceeding in this case.

ASSIGNMENT OF ERROR NO. 4:

In this assignment of error, Relator contends the trial court erred in again finding that he failed to set forth a valid claim under La.Code Crim.P. art. 930.3. This assignment of error is based on the trial judge’s refusal to allow defense counsel to introduce evidence of the victim’s dangerous character which Relator claims resulted in him being deprived of a fair trial. The trial court’s ruling on this issue was that “[t]he decision of the court to allow or deny evidence to be introduced does not fall under any of the grounds set forth in [La.Code Crim. P. art. 930.3].” Accordingly, it found that Relator failed to state a claim upon which relief can be granted.

Rulings regarding the admissibility/inadmissibility of evidence concern a defendant’s right to a fair trial, a right guaranteed by La. Const. Art. 1 § 16. Accordingly, we find that Relator’s claim regarding the trial court’s refusal to allow defense counsel to introduce evidence of the victim’s dangerous character falls within La.Code Crim.P. art. 930.3 (1). See State ex rel. Barnes v. State, 14-1016 (La. 10/28/16), 203 So.3d 222. Accordingly, this claim is remanded to the trial court for consideration and ruling thereon.

ASSIGNMENT OF ERROR NO. 5:

Relator claims his appellate counsel's performance was deficient even though he raised a claim of insufficiency of the evidence. Relator claims that had his appellate attorney followed jurisprudence, he would have briefed the errors currently raised in Relator’s application for post-conviction relief. In ruling on this claim (and the other ineffective assistance of counsel claim), the trial court stated that Relator could not show that his attorney’s actions were unreasonable or that he was prejudiced. Additionally, the trial court noted that the claims did not rise to the level of denying Relator a fair trial. Accordingly, it found Relator failed to meet the Strickland burden.

Recently, the supreme court stated the following regarding a claim of ineffective assistance of appellate counsel:

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, 105 S.Ct. 830 [835,], 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 [746], 103 S.Ct. 3308 [3310], 77 L.Ed.2d 987 (1983). This is true even where the weaker arguments have merit. Id. at 751-2, 103 S.Ct. 3308.
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 (5 Cir. 2000).

State ex rel. Sparkman v. State, 15-1726, p. 3 (La. 10/17/16), 202 So.3d 488, 491.

In State v. Joseph, 16-191, pp. 11-12 (La.App. 5 Cir. 12/7/16), 205 So.3d 1013, 1023, the fifth circuit addressed a similar claim as follows:

Defendant also contends that his appellate counsel was ineffective for failing to raise any issues on appeal. However, this claim is moot, as defendant has in fact raised alleged errors himself in his pro se supplemental brief. State v. Kent, 15-323 (La.App. 5 Cir. 10/28/15), 178 So.3d 219, 232 (citing State v. Roberson, 94-1570 (La.App. 3 Cir. 11/2/95), 664 So.2d 687, 692). Further, defendant’s pro se assignments of error have been reviewed herein and have been found to be without merit. “In the appellate context, the [Strickland] prejudice prong first requires a showing that we would have afforded relief on appeal.” Roberson, supra (citing United States v. Phillips, 210 F.3d 345, 350 (5th Cir. 2000)). Thus, because there do not appear to be any non-frivolous errors that would afford relief on appeal, and defendant’s pro se assignments of error have not been shown to have merit, defendant cannot establish prejudice. See Roberson, supra. In light of the foregoing, we decline to find that defendant’s appellate counsel was ineffective for filing an Anders brief. This assignment of error is without merit.

Likewise, in the present case, Relator has raised the claims that he alleges counsel should have raised on appeal, and they have been reviewed via the post-conviction relief process. Thus, for the claims herein reviewed- by this court and found to be meritless, we find that Relator has failed to establish prejudice. As for the two' claims that must be remanded for consideration and ruling, we-find that Relator’s claim of ineffective appellate counsel is not foreclosed.

WRIT GRANTED AND MADE PEREMPTORY, IN PART; WRIT DENIED, IN -PART: Relator’s claims regarding prosecutorial misconduct and the trial court’s exclusion at trial of evidence regarding the victim’s character are properly raised in an application for post-conviction relief. La.Code Crim.P. art. 930.3(1); State v. Kendrick, 96-1636 (La.App. 3 Cir. 6/25/97), 699 So.2d 424, writ denied, 98-2159 (La. 12/18/98), 731 So.2d 280. Thus, the trial court erred in finding these two claims failed to state a ground on which relief could be granted. Accordingly, we remand these claims to the trial court for consideration and ruling hithereon. Relator’s claims of ineffective assistance of trial counsel and the denial of his right to counsel at arraignment have no merit and are denied. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Tarver, 02-973 (La.App. 3 Cir. 3/12/03), 846 So.2d 851, writ denied, 03-1157 (La. 11/14/03), 858 So.2d 416. Relator’s claim of ineffective assistance of appellate counsel as it concerns the two claims being remanded is not foreclosed. Otherwise, Relator’s claim of ineffective assistance of appellate counsel for failing to raise the claims he now raises is denied.

      . A copy of Relator's writ application was forwarded to the State at its request. The state reserved its right to file a response, but a response was never received.

      . The Barnes, Id. at 223, court stated:
      Relator’s claims concerning the sufficiency of the state's proof, erroneous jury charges and the admissibility of other crimes evidence are repetitive. La.C.Cr.P. art. 930.4. As to the remaining claims, relator fails to satisfy his post-conviction burden of proof and/or state cognizable grounds for relief on collateral review. La.C.Cr.P. art. 930.2; La.C.Cr.P. art. 930.3.

      . The above quoted material from Sparkman appears in the district court's written reasons denying the relator’s application which the supreme court attached to and make part of its per curiam opinion


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    Arthur B. TREGRE, Jr. v. Greg CHAMPAGNE in his Official Capacity as Sheriff for St. Charles Parish, et al Lynsey P. Watson, et al v. Dallas J. Veillon, et al Frank Clavelle, et al v. St. Charles Parish Sheriff's Office, et al Dallas J. Veillon v. Greg Champagne in his Official Capacity as Sheriff for St. Charles Parish, et al Auto Club Family Insurance, et al v. Greg Champagne, et al
    NO. 16-CA-681
    16-CA-682
    16-CA-683
    16-CA-684
    16-CA-685
    Court of Appeal of Louisiana, Fifth Circuit.
    July 26, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE-3RD APPELLANT, ARTHUR B. TREGRE, JR. Philip J. Boudousque
    COUNSEL FOR PLAINTIFF/APPELLANT, LINSEY P. WATSON, INDIVIDUALLY AND ON BEHALF OF HER DECEASED HUSBAND, JEFF G. WATSON George B. Recile
    COUNSEL FOR INTERVENOR/AP-PELLEE, COVINGTON SPECIALTY INSURANCE COMPANY Sidney W. De-gan, III, Travis L. Bourgeois, Karl H. Schmid, Catherine N. Thigpen
    COUNSEL FOR DEFENDANT/AP-PELLEE-2ND APPELLANT, GREG CHAMPAGNE, SHERIFF FOR THE PARISH OF ST. CHARLES, AND ATLANTIC SPECIALTY INSURANCE COMPANY Edmund W. Golden
    COUNSEL FOR DEFENDANT/AP-PELLEE, BOOGIE’S LOUNGE, LLC AND DERREL A. RANATZA Ryan M. Malone, Linda A. Hewlett
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst
   WINDHORST, J.

| ]In this consolidated action, plaintiffs Arthur B. Tregre, Jr. and Lynsey P. Watson, as well as defendant Greg Champagne, in his official capacity as Sheriff for St. Charles Parish (Sheriff), appeal from a decision of the trial court granting summary judgment in favor of defendants, Boogie’s Lounge, LLC (Boogie’s) and Darrel A. Ranatza, and defendant/plaintiff-in-reconvention, Covington Specialty Insurance Company (Covington), and dismissing any and all claims against Boogie’s, Mr. Ranatza, and Covington with prejudice. We affirm the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

This action arises out of an automobile accident. The facts, for the purposes of this appeal, are as follows:

On August 4, 2013, Mr. Tregre was proceeding in his vehicle southbound on La. Highway 52, in St. Charles Parish, Louisiana. He- was following a vehicle driven by Dallas Veillon. While Mr. Veillon was attempting to make a left turn, a police cruiser traveling northbound on La. Highway 52, driven by Deputy Jeff Watson, struck Mr. Veillon’s left-turning vehicle. The police cruiser then entered the southbound lane and struck Mr. Tregre’s vehicle head-on. Deputy Watson was killed in the accident and Mr. Tregre suffered serious injury.

Deputy Watson was employed by the St. Charles Parish Sheriffs Office and was in the course and scope of his employment at the time of the accident. A short time prior to the accident, Mr. Veillon had been drinking at Boogie’s, and was ejected from that establishment. Mr. Veillon was allegedly driving while intoxicated at the time of the accident. Mr. Ranatza was a member of the limited liability corporation that owned Boogie’s.

On October 10, 2013, Mr. Tregre filed his petition for damages incurred as a result of the accident. In his petition, he named as defendant the Sheriff and his I insurer, Atlantic Specialty Insurance Company. Mr. Tregre also named as defendants Mr. Veillon and his insurer, State Farm Insurance. On August 4, 2014, Mr. Tregre filed a supplemental and amending petition, naming as defendants Mr. Ranat-za, Boogie’s, and its insurer, Covington. In his petition, Mr. Tregre alleged that Mr. Veillon became intoxicated while drinking at Boogie’s and that he was ejected from Boogie’s while intoxicated. Mr. Tregre contended that Boogie’s employees ejected Mr. Veillon from the bar, which is located next to a busy highway, with the knowledge that he was intoxicated and was going to drive on that highway. Mr. Tregre further asserted a “spoliation of evidence” claim against Mr. Ranatza, by alleging that Boogie’s had a fully functional and operational video surveillance camera system that recorded the acts of its employees inside the bar, and that Mr. Ranatza, either personally or through one of his employees, caused the system to be removed with the intent to purposefully destroy the evidence therein. Boogie’s and Mr. Ranat-za filed an answer raising several affirmative defenses, including that Mr. Tregre’s damages were not proximately caused by their alleged actions.

Thereafter, on March 25, 2015, Coving-ton, the liability insurer of Boogie’s, filed a petition for intervention in the suit filed by Mr. Tregre, seeking a declaratory judgment that, under the terms of its policy issued to Boogie’s, it owed no duty of defense or indemnity to Boogie’s and/or Mr. Ranatza.

On July 8, 2014, Lynsey P. Watson, Deputy Watson’s wife, filed her petition for damages, naming as defendant Mr. Veillon and his insurer, State Farm, and also Atlantic Specialty Insurance Company, the Sheriffs insurer, seeking relief under its uninsured/underinsured motorist coverage. On September 1, 2015, Mrs. Watson filed a supplemental and amending petition, adding Boogie’s and Mr. Ranatza as defendants.

On September 6, 2015, Covington filed a motion for summary judgment, seeking a declaration that it had no duty to defend or to indemnify defendants | ..¿Boogie’s or Mr. Ranatza. Covington was the issuer of a Commercial General Liability Coverage policy providing coverage to Boogie’s, for “‘bodily injury’ and ‘property damage’ [that] is caused by an ‘occurrence’ that takes place in the ‘covered territory[.]’ ” Covington argued that the injuries and damages occurred on the highway and not in “covered territory.” Covington further argued that there was no coverage for the spoliation claim, because the policy specifically excluded coverage for electronic data. Finally, Covington argued that the policy had an absolute exclusion for “bodily injury” or “damages” for actions “causing or contributing] to the intoxication of any person.” Covington asserted that it was entitled to summary judgment because there was no coverage for any and all acts alleged by the parties.

On December 6,- 2015, defendants Mr. Ranatza and Boogie’s also filed a motion for summary judgment. In the motion for summary judgment, defendants argued that the actions of Boogie’s and/or Mr. Ranatza were not the proximate or legal cause of the accident or resultant injuries, thus there is no liability on the part of defendants for .either the injuries or for any spoliation claim. Furthermore, they asserted that the security system was not recording on the night of the accident, and therefore there is no evidence to support a spoliation claim against Mr. Ranatza.

On May 13, 2016, the trial court granted the motions for summary judgment and dismissed any and all claims against Cov-ington, Mr., Ranatza, and Boogie’s with prejudice. Plaintiffs, Mr. Tregre and Mrs. Watson, as well as defendant, Sheriff, filed motions for appeal. In addition, Covington filed an answer to the appeal.

DISCUSSION

Appellate courts review the granting of a suminary judgment de novo using the same criteria governing .the trial court’s consideration of whether summary I ¿judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544, 547; Thomas v. Hunting Ingalls, Inc., 16-474 (La. App. 5 Cir. 12/21/16), 210 So.3d 454, 457. A motion for summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion' for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966B(2). The party moving for summary judgment bears the burden of proof. La. C.C.P. art. 966C(2). However, if the movant will not bear the burden of proof at trial, the movant’s burden on a motion for summary judgment does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the claim. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment should be granted. Id.

Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Bourgeois v. Boomtown, LLC, 10-553 (La.App. 5 Cir. 02/15/11), 62 So.3d 166, 169.

Appellants argue that material issues of fact remain and therefore the trial court erred in granting summary judgment. The motions for summary judgment in this matter are predicated on Louisiana’s Anti-Dram Shop Act, La. R.S. 9:2800.1, which provides in pertinent part:

Is A. The legislature finds and declares that the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person.
B. Notwithstanding any other rlaw to the contrary, no person holding a permit under either Chapter 1 or Chapter 2 of Title 26 of the Louisiana Revised Statutes of 1950, nor any agent, servant, or employee of such a person, who sells or serves intoxicating beverages of either high or low alcoholic content to a person over the age for the lawful purchase thereof, shall be liable to such person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises, including wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served.
* *' *
D. The insurer of the intoxicated person shall be primarily liable with respect to injuries suffered by third persons.
E. The limitation of liability provided by this Section shall not apply to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that a beverage contains no alcohol.

La. R.S. 9:2800.1 was enacted “with the express purpose of placing the responsibility for consequences of intoxication on the intoxicated person* rather than the server of the alcohol.” Aucoin v. Rochel, 08-1180 (La. App. 1 Cir. 12.23/08), 5 So.3d 197, 201. Thus, La. R.S. 9:2800.1 provides immunity for bar owners and their agents, servants or employees if certain requirements are met, namely that the bar owner holds a permit to sell alcoholic beverages, the bar owner or its personnel served alcoholic beverages to a person over the lawful drinking age, the purchaser suffered and/or caused another to suffer an injury off the bar’s premises, and the injury was caused by the purchaser’s intoxication. Id.

Appellants do not argue that the statute does not apply. Instead, they argue that defendants Boogie’s and/or Mr. Ranatza had a duty to avoid committing affirmative acts, which they allege caused or contributed to the accident at issue. In their brief, the alleged affirmative acts are not discussed. However, the petitions filed by Mr. Tregre and by Mrs. Watson both allege that immediately prior to the 1 (¡accident, employees of Boogie’s forcibly ejected Mr. Veillon from the bar, which is next to a busy highway, with the knowledge that he was intoxicated and was going, to drive on the roadways in an inebriated condition. They further alleged that the bartender working at the time did not have a valid license to serve alcohol. Finally, they asserted, a claim for spoliation of evidence, alleging that Mr. Ranatza destroyed evidence, namely the surveillance cameras, which showed affirmative acts by the employees of Boogie’s.

In this argument, appellants contend that Boogie’s had a duty to Mr. Veillon,anci to the public in general, to avoid performing affirmative acts with the knowledge that these acts would increase the likelihood that Mr. Veillon, -as an intoxicated driver, would travel the roadways, and that by ejecting Mr. Veillon from the bar, Boogie’s breached that duty.

However,- by enacting La. R.S. 9:2800.1, the legislature has found that the consuming of alcohol is the proximate cause of injury inflicted by an intoxicated person. The statutorily provided exceptions to this limitation of liability apply only'to any person who causes or contributes to the consumption of alcoholic beverages by force or by falsely representing that the beverage has no alcohol, or when alcoholic beverages are provided or sold to a minor.

17Appellants also argue that the statutory immunity does not apply here because there is an issue of fact as to whether the bartender was licensed when serving Mr. Veillon. For the immunity provisions of La. R.S. 9:2800.1 to apply, the following requirements must be met: 1) the bar owner must hold a permit under Title 26 of the Louisiana Revised Statutes; 2) the bar owner, its agents and servants or employees sell or serve intoxicating beverages to a person over the age for lawful purchase thereof; 3) the purchaser thereof suffers an injury off the premises; and 4) this injury or accident was caused by the intoxication of the person to whom the intoxicating beverages were sold or served. Zapata, supra at 607. That these requirements were met is not disputed in this case.

There is no requirement under this statute that the bartender be licensed. Because there is no dispute that the provisions of La. R.S. 9:2800.1 have been met, Boogie’s is immune from tort liability. In Bourgeois, supra, the issue was whether the serving of alcohol by Boomtown Casino to an intoxicated person, a violation of La. R.S. 26:90A(2), rendered the immunity provision of La. R.S. 9:2800.1 inapplicable. In that case, it was argued that Boomtown served alcohol to Mr. Bourgeois, despite the fact that he was intoxicated. Mr. Bourgeois left the casino and was killed in a one-car accident shortly after he left. Autopsy records revealed that Mr. Bourgeois’ blood alcohol level was .290% at the time of the accident. Thereafter, plaintiffs filed suit against Boomtown for wrongful death. Pursuant to a motion for summary judgment, this Court found that Boomtown was immune from liability under la. R.S. 9:2800.1, stating that “Since the legislature has for public policy reasons eliminated legal or ‘proximate cause’ in a case of this type, Boomtown’s act of serving alcohol is not the proximate cause of decedents death 18and absent this essential legal element, plaintiffs case falls as a matter of law.” Bourgeois, 62 So.3d at 171.

The same rationale applies in this case. Although appellants argue that the bartender may not have had a valid license, her act of serving alcohol without a license is not a proximate cause of accident in this case, and therefore does not create an issue of fact sufficient to defeat summary judgment.

We find that the trial court did not err in concluding that the immunity provision set forth La. R.S. 9:2800.1 is applicable in this case.

Closely related to appellants’ argument that the trial court erred in granting the motions for summary judgment based on the immunity provisions of La. R.S. 9:2800.1, is appellants’ claim that the trial court erred in dismissing their spoliation of evidence claim, in which it is alleged that Mr. Ranatza destroyed, or caused to be destroyed, video surveillance evidence that showed the commission of the alleged affirmative acts.

The theory of “spoliation of evidence” refers to an intentional destruction of evidence for the purpose of depriving opposing parties of its use. Desselle v. Jefferson Parish Hosp. Dist. No. 2, 04-455 (La. App. 5 Cir. 10/12/04), 887 So.2d 524, 534; Pham v. Contico Intern. Inc., 99-945 (La. App. 5th Cir. 03/22/00), 759 So.2d 880.

A plaintiff asserting a state law tort claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence. Allegations of negligent conduct are insufficient. Desselle, 887 So.2d at 534. The tort of spoliation of evidence has its roots in the evidentiary doctrine of “adverse presumption,” which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence unless such destruction is adequately explained. Desselle, 887 So.2d at 534; Pham, 759 So.2d at 882.

lain this case, because there is statutory immunity from liability for any injuries caused by an intoxicated person, there is no merit to any claim that the immune party intentionally destroyed evidence detrimental to that party.

Covington filed an answer in this court, contending that the trial court erred in failing to find that its policy issued to Boogie’s excluded coverage for the claims against Boogie’s and/or Mr. Ranatza. Cov-ington seeks, in its answer, a modification of the trial court’s reasons for judgment, and not the judgment itself. Since Coving-ton has been dismissed from this suit, and since we affirm the judgment dismissing Covington, we decline to discuss these issues.

CONCLUSION

Considering the foregoing, we find no error in the trial court’s judgment dismissing all claims filed against Covington Specialty Insurance Company, Derrell A. Ra-natza and Boogie’s Lounge, LLC with prejudice. Accordingly, the judgment qf the trial court is affirmed. Costs are assessed against the appellants.

AFFIRMED

      . No motions for appeal were-filed on behalf of Mr. Veillon, Frank Clavelle, or Auto Club Family Insurance,

      . This motion for summary judgment was filed in .December 2015, heard on April 25, 2016, and judgment rendered on May 13, 2016, A new summary judgment provision went into effect on January 1, 2016. According to the provisions of 2015 La. Acts, No. 422, § 2, the amendment of La. C.C.P. art. 966, "shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date.” Because this matter was pending adjudication on January 1, 2016, the effective date of the act, we apply the prior version.

      . Sheriff filed a brief assigning errors and presenting arguments in support of the appeal. Appellants, Mr, Tregre and Mrs. Watson, filed briefs adopting in total the issues and .arguments presented in Sheriff’s brief.

      . Appellants argue that the Louisiana Supreme Court, in Berg v. Zummo, 00-1699 (La. 04/25/01), 786 So.2d 708, 713-14, FN3, recognized that there was a "potential non-application of LSA-R.S. 9:2800.1 based on affirmative acts independent of the mere sale of alcohol." As noted by the court in Aucoin, supra, this footnote "is not only dicta, but it merely leaves open the possibility of the issue being raised, and specifically indicates no opinion either way. Additionally, the statutory language [of La. R.S. 9:2800.1] is clear and unambiguous, leaving no room for interpretation beyond the ordinary meaning of the words employed.” Aucoin, 5 So.3d at 203. Moreover, under the alleged facts of this case, we need not consider whether a jurisprudential exception may apply under certain circumstances.
      The trial court in this case recognized that there was no "affirmative action” to defeat the immunity provision of La. R.S. 9:2800.1, stating in its reasons for judgment that:
      [T]hose opposing the Motions for Summaiy Judgment herein are asking this Court to jurisprudentially create an exception (or exceptions) to the immunity statute by creating causes of action for ‘affirmative acts’ that are derivative of the serving of liquor. This the Court declines to do. The legislature writes the laws. The legislature has made it clear that "the consumption of intoxicating beverages, rather that the sale or serving of furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person.” The legislature wrote the law which applies in this case, and this Court has no recourse but to follow same.

      . La. R.S. 26:90A(2) provides:
      A, No person holding a retail dealer's permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises:
      (2) Sell or serve alcoholic beverages to any intoxicated person.


author: WILLIAMS, J.

text:
    Stephanie Lynn TRIPPANY, Plaintiff-Appellant v. BOSSIER PARISH COMMUNITY COLLEGE and the State of Louisiana through the Board of Supervisors of Community & Technical Colleges, as the Supervising and Managing Board of Bossier Parish Community College, Defendant-Appellee
    No. 51,471-CA
    Court of Appeal of Louisiana, Second Circuit.
    August 2, 2017
    SIMMONS, MORRIS & CARROLL, L.L.C., By: G. Adam Savoie, Brandon T. Morris, Counsel for Appellant
    JEFF LANDRY, Attorney General, RONALD F. LATTIER, Special Assistant Attorney General, Counsel for Appellee
    Before WILLIAMS, PITMAN, and BLEICH (Pro Tempore), JJ.
   WILLIAMS, J.

hThe plaintiff, Stephanie Trippany, appeals a judgment in favor of the defendants, Bossier Parish Community College and the State of Louisiana, Board of Supervisors of Community and Technical Colleges.. The jury found that the defendants, did not breach a duty of care owed to the plaintiff. For the , following reasons, we affirm,

. FACTS

On July 19, 2011, the weather was sunny at 3 p.m., when- Stephanie Trippany, a student at Bossier Parish Community College (“BPCC”), arrived at the school. After entering Building F, Trippany walked approximately ten steps in the hallway, then slipped and fell in an area near the stairway. A short time earlier, BPCC employees and students had been carrying the-atre equipment from outside to the second floor of Building F when a brief rain shower occurred. Some pieces of equipment were placed next to the stairway to get them out of the rain before being taken upstairs. A BPCC custodian, Miranda Wallace, had assisted with bringing in the theatre equipment and was returning to the front entry area when she heard a scream. Wallace noticed a small puddle of water next to the stairs'and saw. Trippany sitting on the floor several feet away. Wallace contacted a security officer, Steve Porter, who responded to the accident scene. Porter wrote in his report that he observed a small puddle of water on the floor next to the stairs and spoke with Trippany, who said she had injured her left knee after slipping in water ,and falling. She later sought medical treatment for her left knee. Porter also spoke with Wallace and wrote that the equipment brought in from the rain was the source of the water he had seen on the floor. At the time of the accident, BPCC’s safety policy required employees to guard |2against water that drips onto the floor from wet items brought in after a rain shower. .

Subsequently, the plaintiff, Stephanie Trippany,' filed a petition for damages against the defendants, BPCC and the State of Louisiana, Board of Supervisors of Community and Technical Colleges (collectively, “BPCC”). The parties filed summary judgment motions, which were denied by the district court. After a trial, the jury found that BPCC had not breached the duty of care owed to plaintiff. The trial court rendered judgment in favor of BPCC in accordance with the jury verdict. Plaintiff appeals the judgment.

DISCUSSION

In two assignments of error, the plaintiff contends, the jury erred in making a determination that is contrary to the evidence presented. Plaintiff argues that BPCC employees breached the duty owed to her because they failed to remove the water from the floor contrary to defendant’s safety policy.

An individual is responsible for the damage caused by things in his custody. La. C.C. art. 2317. The owner of a thing is answerable for damage caused by its defect only upon a showing that he knew or, in the exercise of reasonable care, should have taiown of the defect which caused the damage, that the damage could have been prevented by the use of reasonable care and that he failed to exercise such care. La. C.C. art. 2317.1. No person shall have a cause of action based upon the liability imposed under Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular defect which caused the damage prior to the occurrence, and lathe public entity has had a reasonable opportunity to remedy the defect and failed to do so. La. R.S. 9:2800(C).

.Under the duty-risk analysis, a plaintiff must prove that the defendant owed a duty to conform his conduct to a specific standard of care, (duty element); defendant failed to conform his conduct to the appropriate standard, of care (breach of duty element); defendant’s substandard conduct was a -cause of plaintiffs injuries; and damages. Daigle v. City of Shreveport, 46,429 (La. App. 2 Cir. 10/5/11), 78 So.3d 753; Pamplin v. Bossier Parish Community College, 38,533 (La. App. 2 Cir. 7/14/04), 878 So.2d 889. Factual determinations by a trier of fact will not be disturbed on review in the absence of manifest error based upon the record as a whole. Rosell v. ESCO, 549 So.2d 840 (La. 1989).

In the present case, Steve Porter testified that in 2011, he was a security officer at BPCC and he responded to Building F to investigate plaintiffs fall. Porter stated that he spoke with plaintiff, who was sitting in a chair at the time, and with Wallace. Porter testified that he had prepared a report in which he wrote that he “observed a small puddle of water on the floor next to the stairs” and that the plaintiff had “slipped on water that was on the floor next to the stairway and fell down,” injuring her left knee. Porter also wrote that he had been “told that people involved with the theater had just brought in equipment from outside just after a slight rain shower. This was how the water got on the floor.” In his testimony, Porter described the water on the floor as “small droplets of water” covering an area approximately two inches wide and six inches in length. Porter acknowledged the report did not specify that plaintiff had slipped in the water that apparently had dripped from the equipment.

[ 4Keith Bruce, an employee of BPCC, testified that in 2011, he was working as a theatre technician. Bruce stated that on the day of the accident, he had been working with a group of approximately six students bringing stage scenery into Building F and up to the second floor. Bruce testified the weather was sunny when they began carrying in the flat scenery boards, which were thin and lightweight. He stated the rain began while they were carrying in the larger 4-by-8-feet platforms, so the last two platforms were placed next to the stairway to get them out of the rain while the other equipment was taken upstairs. Bruce testified that he went directly from the front door up the stairs and did not look at the floor next to the stairway where the equipment had been placed. Bruce stated that he did not see any water on the stairs or on the floor between the door and the stairway. Bruce testified that if the boards became wet they would have needed to be repainted, but he did not need to repaint the boards that day.

David Jones, an administrator at BPCC, testified that the BPCC safety policy requires employees “to guard against water that can drip onto the floor from wet items brought in after a rain shower.” Jones agreed that if a custodian brought in wet equipment and placed it on the floor, then the person should make sure there was no water left on the floor after the equipment was moved.

Miranda Wallace, a custodian at BPCC, testified that she was working in Building F in July 2011. Wallace explained that her job duties included sweeping, emptying trash and walking the building every 30 minutes to check the floors for liquids and clean up any that were found. Wallace stated that on the date of the accident it began lightly raining at approximately 3 p.m., while some individuals from the the-atre department | ¿were bringing equipment into the building. Wallace testified that she helped bring in some scenery boards and placed them on a table while others set down some pieces of equipment on the floor, leaning against the stairs. She stated that it wasn’t raining very hard and the equipment “wasn’t soaking wet.” Wallace testified that she did not see any water on the floor when the equipment was being brought inside. Wallace stated that after helping to carry the equipment upstairs, she was returning to the front area when she heard someone scream and she walked toward plaintiffs location. Wallace testified that she then saw water on the floor next to the staircase that was approximately 2-4 feet away from where plaintiff was sitting on the floor. Wallace stated that the water was “against the staircase” where the equipment had been placed, but the floor was dry where the plaintiff was located. Wallace testified that the boards she placed on the table were not wet and that she did not touch the equipment next to the stairs. Wallace stated the water apparently dripped onto the floor between the equipment and the stairs so that the small amount of water was not visible until the equipment was moved. Wallace testified that she was not told there was water on the floor prior to plaintiffs fall and afterward she mopped up the water after seeing the puddle. Wallace stated she did not know of any witness who saw plaintiff slip in the water alongside the stairway.

Stephanie Trippany testified that on the day of the accident she intended to go to the bookstore located in Building F. Trip-pany stated that she entered the building and had walked approximately 10 steps when her foot “slipped in a puddle of water” and she fell on her left knee. Trip-pany testified that she had been looking straight ahead while walking and did not see any water on the floor before slipping. Trippany stated that after falling,J^she looked around and saw water on the floor that she described as a larger puddle and two smaller puddles. Trippany testified that she did not see a sign warning of a wet floor or any BPCC employees nearby. Trippany stated that she spoke with a security officer, Porter, and told him that as she “walked to the right of the stairs my foot hit, I guess, the water that was on the floor” and she fell. Trippany testified that it was not raining when she walked from the parking lot to Building F, the pavement was not wet and she did not see any water on the floor as she entered the building. Trippany stated that she did not see any type of equipment placed next to the stairs.

The plaintiff argues in her brief that the jury was clearly wrong in finding that BPCC did not breach its duty to her because the college’s employees allowed water to drip on the floor. At trial, the jury heard the testimony of Wallace and her supervisor, Larris Clark, who testified that if Wallace had brought in wet equipment that dripped water on the floor and left water on the floor when moving the equipment then she would have violated BPCC’s safety policy. However, Wallace testified that she had placed equipment on a table, not next to the stairway, and that the equipment next to the stairs was moved by others while she was on the second floor. Based upon this testimony, the jury reasonably could have determined that Wallace did not breach the duty of care because she had not placed any equipment against the stairway or moved the equipment leaving water on the floor. The jury also could have determined that Wallace did not have a reasonable opportunity to remedy the condition created by the water since the testimony indicated that plaintiff entered the building only minutes after Wallace helped bring equipment upstairs and fell before the custodian could return to the area.

]7In addition, although the testimony suggests that there was water on the floor in the area where some equipment had been placed against the stairs, there is also evidence that plaintiff did not slip in the small amount of water located alongside the stairway. We note that plaintiff testified she saw water on the floor after she fell, but did not specify where the water was located in relation to her position on the floor. Nor did plaintiff say that any part of her leg, knee, dress or flip-flop sandals were wet from the water in which she said she slipped. Wallace testified that she did not see any water in the location where plaintiff had fallen. Wallace further testified in her deposition, which was admitted into evidence, that in order for plaintiff to have stepped in the water that was alongside the base of the stairway, her shoulder would have been brushing against the stairs and she would have fallen right beside the stairway, but plaintiff fell in an area approximately four feet away from the stairs.

The jury heard the testimony, weighed the credibility of the witnesses and considered the circumstances’ of the accident. The evidence presented supports a finding that plaintiff failed to satisfy her burden of establishing that BPCC breached its duty of care by creating a hazard which caused plaintiff to slip and fall. Based upon this record, we cannot say the trial court erred in determining that the defendants are not liable for plaintiffs'injury,-Thus, the assignments of error lack merit.

CONCLUSION

For the - foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Stephanie Trippany.

AFFIRMED.


author: PER CURIAM

text:
    BOARD OF ETHICS, IN the MATTER OF Clarence SAVOIE, II, et al
    2017 CW 0077
    Court of Appeal of Louisiana, First Circuit.
    August 7, 2017

      R. Gray Séxton, Jennifer L. Jackson, Baton Rouge, Louisiana, and Samuel J. Accardo, Jr., LaPlace, Louisiana, Counsel for Plaintiffs/Relators C.J. Savoie’ Consulting Engineers, Inc. and Clarence Savoie, II •
    Vivian Haley Williams, Kathleen M. Allen, Baton Rouge, Louisiana, Counsel lor Defendant/Respondent Louisiana Board of Ethics
    BEFORE: PETTIGREW, MCDONALD, and PENZATO, JJ.
   PER CURIAM

|2The relators, an engineer and his engineering firm, seek supervisory review .of the denial of their motion for summary judgment filed with the Louisiana Ethics Adjudicatory Board. Concluding that the relators’ remedy is not a supervisory writ, but an appeal as directed in La. R.S. 42:1142, we grant the writ for the limited purpose of remanding this matter to the Louisiana Ethics Adjudicatory Board with instruction to grant relators an ■ appeal.

PERTINENT FACTS AND PROCEDURAL HISTORY

In November 2015 the Louisiana Board of Ethics (Ethics. Board) voted to file charges against the relators, C.J. Savoie Consulting Engineers, Inc. and Clarence Savoie, II (sometimes collectively, Savoie Engineers), with the Louisiana Ethics Adjudicatory Board (EAB), the administrative body charged with conducting a hearing on the charges. The Ethics Board charged that .Savoie Engineers violated conflict of interest laws while serving as Parish Engineer for St. John the Baptist Parish (sometimes, St. John .Parish). Particularly, the Ethics Board charged that Savoie Engineers, violated La. R.S. 42:1112(A) and La. R.S. 42:1113(A)(l)(a) in that Savoie was a “public employee” as defined in La. R.S. 42:1102(18).

Un June 2016 Savoie Engineers filed a “Motion and Memorandum in Support of a Summary Judgment” as allowed under Louisiana Administrative Code (LAC) § 52:1.1102 as a prehearing motion in the proceeding begun by the Ethics Board. Primarily, Savoie Engineers alleged that they are not public employees and that they were an independent contractor working under contracts for professional services. The Ethics Board opposed the motion.

The motion for summary judgment came for hearing before the EAB on August 4, 2016. The EAB took the motion under advisement, and in November 2016, the EAB rendered and transmitted a written “Order Denying Motion for Summary Judgment.”

On November 29, Savoie Engineers timely filed a notice of intent to file supervisory writs. The EAB set a return date of January 20, 2017. Savoie REngineers timely filed their writ application in which they raise three assignments of error:

1.The EAB erred as a matter of law when it held that the [Ethics Board’s] conclusory evidence contradicted Sa-voie’s affidavit evidence that certain services provided by Savoie to St. John Parish are not “governmental functions” that St. John Parish is required by law to provide for the benefit of the public.
2. The EAB erred as a matter of law when it held that the [Ethics Board’s] conclusory evidence contradicted Sa-voie’s affidavit evidence that Savoie did not provide professional engineering services under the “supervision or authority” of elected officials or other employees of St. John Parish.
3. The EAB erred as a matter of law when it held that the [Ethics Board’s] conclusory evidence contradicted Sa-voie’s affidavit evidence that Savoie did not perform “governmental functions” that the Public Bid Law requires St. John Parish to perform for the benefit of the public.

DISCUSSION

Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. McGehee v. City/Parish of East Baton Rouge, 00-1058 (La. App. 1 Cir. 9/12/01), 809 So.2d 258, 260. Here, both parties argue that the Louisiana Code of Civil Procedure governs the review of the motion for summary judgment at issue. EAB decisions are reviewed in accordance with the Louisiana Administrative Procedure Act (LAPA). “The LAPA was not intended to supersede the more specific provisions of other administrative acts[.]” Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Bd., 01-0185 (La. 10/16/01), 797 So.2d 656, 662; Corbello v. Sutton, 446 So.2d 301, 303 (La. 1984). “Rather, it was intended to create procedures in those instances where none exist.” Metro Riverboat, 797 So.2d at 662.

However, Part III of Chapter 15 of Title 42 of the Louisiana general statutes, La. R.S. 42:1132 et seq., the Code of Governmental Ethics, set out the specific provisions that govern the Ethics Board and the EAB. Particularly, La. R.S. 42:1142, entitled “Appeals,” governs review of actions taken by the EAB. This | (¡statute was amended by Acts 2012, No. 607, § 1, eff. June 7, 2012, to provide, in pertinent part, as follows:

A. (1) Whenever action is taken against any public servant or person by order of the Board of Ethics, or panel thereof, or by a final decision of the Ethics Adjudicatory Board, or by an agency head by order of the Board of Ethics, or panel thereof, or by a final decision of the Ethics Adjudicatory Board, or whenever any public servant or person is aggrieved by any action taken by the Board of Ethics, or panel thereof, or the Ethics Adjudicatory Board, he may appeal to the Court of Appeal, First Circuit. (Emphasis added.)

While this statute does not specifically address preliminary, procedural, or intermediate actions, the version of the statute immediately preceding did. Acts 2008, 1st Ex. Sess. No. 24, § 1, eff. March 14, 2008, which is no longer in effect, provided, in pertinent part, as follows:

A. Whenever action is taken against any public servant or person by the board or panel or by an agency head by order of the board or panel, or whenever any public servant or person is aggrieved by any action taken by the board or panel, he may appeal therefrom to the Court of Appeal, First Circuit, if application to the board is made within thirty days after the decision of the board becomes final. Any refusal by the board or panel to issue a declaratory opinion or any preliminary, procedural, or intermediate action or ruling by the board or panel is subject to the supervisory jurisdiction of the appellate court as provided by Article V, Section 10 of the Constitution of Louisiana. The Court of Appeal, First Circuit, shall promulgate rules of procedure to be followed in taking and lodging such appeals. (Emphasis added.)

The language of this prior version appears to conflate appellate and supervisory jurisdiction. Even so, it arguably afforded supervisory review of preliminary or intermediate actions, which would normally include a ruling that denies a motion for summary judgment.

In any event, the present version of La. R.S. 42:1142 provides that when any person is aggrieved by any action, he may appeal to this court. “The legislature is presumed to have enacted an article or statute in light of the preceding law involving the same subject matter and court decisions construing those articles or statutes, and where the new article or statute is worded differently from the preceding law, the legislature is presumed to have intended to change the law.” La. RR.S. 24:177(C). Here, the current version of La. R.S. 42:1142 removes all reference to supervisory review of preliminary’, procedural, or intermediate actions by the EAB and has expanded the right of appeal. ■

As to which Ethics Board or EAB “actions” are appealable under the current version of La. R.S. 42:1142(A), the Code of Governmental Ethics at La.' R.S. 42:1102(l)(a) provides a pertinent definition for an “Action of a governmental entity,” as follows:

Action of a governmental- entity’ means any action on the part of a governmental entity or agency thereof including, but not limited to:
(a) Any decision, determination, finding, ruling, or order, including the judgment or verdict of a court or a quasi-judicial board, in which the governmental entity or any of - its agencies has an interest, except in such matters involving criminal prosecutions.

The ■ EAB’s decision at issue here that denied Savoie Engineers’ motion for summary judgment ■ clearly falls -within this definition.

Even so, Savoie Engineers cite La. R.S. 42:1143 as authority, for this- court- to employ the procedures of the LAPA. This statute provides as follows: “Except as jjotherwise provided in this- Chapter, all-proceedings conducted by the board or panel shall be subject to and in accordance with the Administrative Procedure Act.” (Emphasis added.) Savoie Engineers then point to 'judicial review as afforded- under La. R.S. 49:964.

We note, however, that the statute immediately preceding La. R.S. 42:1143, La. R.S.. 42:1142, provides otherwise. As set out above, any person aggrieved by any action by- the EAB or Ethics Board- may appeal the decision.

Also, while the LAPA, particularly La. R.S. 49:964, entitled “Judicial review of adjudication,” allows for immediate judicial review of a “preliminary, procedural, or intermediate agency action or ruling ... if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury,” such filings are commenced and heard in the district court. This statute provides no direct recourse to the court of appeal. Further, La. R.S. 49:964(G)(6) requires the district court to “make its own determination and conclusions of fact by . a preponderance of evidence[.]” Such standard is inapposite to the requirement on summary judgment that there be “no genuine issue as to material fact” before such judgment can be rendered. See La. C.C.P. art. 966(A)(3).

Accordingly, Savoie Engineers is not entitled to supervisory review; but the Legislature has given them a right to appellate review of the denial of" a motion for summary judgment by the EAB. In this regard, we note that there are instances where the law affords’ appellate review of interlocutory rulings. For instance, appeals can be taken in connection with rulings on preliminary injunctions. La. C.C.P. art. 3612. Also, La. R.S. 51:134 and 135 allow an appeal of rulings on exceptions and interlocutory judgments in antitrust and monopoly cases.

J^DECREE

Because the relators, C.J. Savoie Consulting Engineers, Inc. and Clarence Sa-voie, II, are aggrieved'by an action of the Louisiana Ethics Adjudicatory Board by its denial of their motion for summary judgment, they are entitled to an appeal. La. R.S. 42:1142. The writ is granted for the limited purpose of remanding this matter to the Louisiana Ethics Adjudicatory Board with instruction to grant relators an appeal pursuant to their Notice of Intent to Apply for Writs of Certiorari, which was filed on November 29, 2016. See In Re Howard, 541 So.2d 195, 197 (La. 1989) (per curiam). Additionally, a copy of this court’s opinion is to be included in the appellate record.

WRIT GRANTED WITH ORDER

      . Louisiana Revised Statutes 42:1112(A) provides, as follows:
      No public.servant, except as provided in R.S. 42:1120, shall participate in a transaction in which he has a personal substantial economic interest of which he may be reasonably expected to know involving the governmental entity.
      Louisiana Revised Statutes 42: i'l 13(A)(1)(a) provides, as follows:
      No public servant, excluding any legislator and any appointed member of any board or commission and any member of a governing authority of a parish with a population of ten thousand or less, or member of such a public servant’s immediate family, or legal entity in which he has a controlling interest shall bid on or enter into any contract, subcontract, or other transaction that is under the supervision or jurisdiction of the agency of such public servant.

      . Louisiana Revised Statutes 42:1102(18) provides, as follows:
      (a) "Public employee” means anyone, whether compensated or not, who is:
      (i) An administrative officer or official of a governmental entity who is not filling an elective office,
      (ii) Appointed by any elected official when acting in an official capacity, and the appointment is to a post or position wherein the. appointee is to serve the governmental entity or an agency thereof, either as a member of an agency, or as an employee thereof.
      (iii) Engaged in the performance of a governmental function.
      (iv) Under the supervision or authority of an elected official or another employee of the governmental entity.

        (b) However, "public employee” shall not mean a person whose public service is limited to the following:
      (i) Periodic duty in the National Guard pursuant to 32 U.S.C. 502.
      (ii) A contract to provide attest services as a certified public accountant.
      (c) A public employee shall be in such status on days on which he performs no services as well as days on which he performs services. The termination of any particular term of employment of a public employee shall take effect on the day the termination is clearly evidenced.

      . Louisiana Admin. Code, Tit. 52, pt. I, § 1102, entitled “Motions and Exceptions,” provides, as follows:
      A. Motions and exceptions may be made before, during, or after a public hearing.
      B. Motions and exceptions made before or after the public hearing shall be filed with the appropriate panel of the Ethics Adjudicatory Board. Contradictory motions and exceptions shall be accompanied by a memorandum which shall set forth a concise statement of the grounds upon which the relief sought is based and the legal authority therefore.
      C.A motion for summary judgment may be filed by either the respondent or the trial attorney(s)[.]
      Louisiana Admin. Code. Tit. 52, pt. I, § 1102, was promulgated pursuant to the Code of Governmental Ethics, particularly La. R.S. 42:1134. La. R.S. 42:1134(A) provides, in pertinent part:
      (1) The Board of Ethics may adopt, amend, repeal, and enforce rules and regulations in the manner provided by the Administrative Procedure Act to carry out the provisions and purposes of this Chapter and any other law within its jurisdiction.

      . The full definition of “Action of a governmental entity” in La. R.S. 42:1102 is as follows:
      Unless the context clearly indicates otherwise, the following words and terms, when used in this Chapter, shall have the following meanings:
      (1) "Action of a governmental entity”means any action on the part of a governmental entity or agency thereof including, but not limited to:
      (a) Any decision, determination, finding, ruling, or order, including the judgment or verdict of a court or a quasi-judicial board, in which the gpvernmental entity or any of its agencies has an interest, except in such matters involving criminal prosecutions,
      (b) Any grant, payment, award, license, contract, transaction, decision, sanction, or approval, or the denial thereof, or the failure to act with respect thereto; and in which the governmental entity or any of its -agencies has an interest, except in matters involving criminal prosecutions.
      (c) As the term relates to a public servant of the state, any disposition of any matter by the legislature or any committee thereof; and as the term relates to ¿ public servant of a political subdivision, any disposition of any matter by the governing authority or any committee thereof.

      . In Metro Riverboat the supreme court observed that a statute granting appeals from any decision made by a board, at any point, in any proceeding would produce absurd results and raise constitutional separation of powers, issues. Metro Riverboat, 797 So.2d at 661. The supreme court held, however, that since the Louisiana Gaming Control Law was applied and enforced through the LAPA, the LAPA governed which decisions were appeal-able. The supreme .court concluded that only "a final decision or order of the board in an adjudication proceeding" was appealable under the LAPA; therefore, only adjudicated final decisions of the Gaming Control Boárd , were appealable. Metro Riverboat, 797 So.2d at 662.
      Here, hearings before the EAB are governed under the Code of Governmental Ethics, La. R.S. 42:1141 et seq. which unlike the , LAPA, does not limit appeals to final decisions of the Ethics Board or the EAB. The actions that are appealable under the Code of Governmental Ethics are defined in La. R.S. 42:1102, The EAB decision under review is the result of an adjudication- proceeding. We do not here establish the parameters for which Ethics Board and EAB actions are ap-pealable since this issue has not been raised by any party, We observe, however, that the EAB decision under review here is appealable following the rationale of Metro Riverboat.

      . La. R.S, 49:964(A)(1).

        . La. R.S. 49:964(B).


author: JESS H. DICKINSON, PRESIDING JUSTICE

text:
    Richard Gerald JORDAN v. STATE of Mississippi
    No. 2016-DR-00960-SCT
    Supreme Court of Mississippi.
    SO ORDERED, this the 13th day of June, 2017.
    Rehearing Denied September 14, 2017
   JESS H. DICKINSON, PRESIDING JUSTICE

FOR THE COURT

This matter comes before the En Banc Court on Richard Gerald Jordan’s Successive Petition for Post-Conviction Relief. Jordan claims the State’s intent to use midazolam in its lethal injection protocol violates Mississippi Code Section 99-19-51. He also claims executing an inmate more than forty years after he was first sentenced to death would violate the United States and Mississippi Constitutions.

Claim I

When Jordan filed his petition, Mississippi Code Section 99-19-51(1) provided that “[t]he manner of inflicting the punishment of death shall be by continuous intravenous administration of a lethal quantity of an ultra short-acting barbiturate or other similar drug in combination with a chemical paralytic agent .... ” Jordan claimed the State could not use mi-dazolam because it was not an “ultra short-acting barbiturate or other similar drag.” But on April 5, 2017, Mississippi Code Section 99-19-51(1) was amended to state “[t]he manner of inflicting the punishment of death shall be by the sequential intravenous administration of a lethal quantity of the following combination of substances: (a) an appropriate anesthetic or sedative; (b) a chemical paralytic agent; and (c) potassium chloride, or other similarly effective substance. ...”

Ordinarily, this Court will not dispose of a case on grounds which the parties have not been afforded an opportunity to brief. Here we do so because Jordan claims that the use of midazolam violates a provision of Section 99-19-51 that now has been amended. Because we find Jordan’s claim to be moot, we decline to address whether midazolam is or is not a permissible drug under the-current statute.

Claim II

Jordan also argues that both the United States and Mississippi Constitutions prohibit the State from executing an inmate more than forty years after he was originally sentenced to death. Jordan has been on death row for over forty years— longer than any other Mississippi inmate. He argues that after this length of time, execution will amount to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, and cruel or unusual punishment under Article 3, Section 28 of the Mississippi Constitution.

Courts regularly have rejected similar claims. The United States Supreme Court recently rejected a petition for certiorari review of “whether execution of a condemned individual more than three-and-one-half decades after the imposition of a death sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment.” We are provided no compelling argument to depart from these holdings, so we must conclude that Jordan’s Eighth Amendment claim lacks merit.

Jordan also lodges his claim under Article 3, Section 28 of the Mississippi Constitution, which prohibits cruel or unusual. Jordan argues that the forty-year delay has resulted from his sentence being reversed three times due to the State’s inappropriate conduct at trial, and that even if not cruel, the extensive delay renders his punishment unusual because no Mississippi prisoner has waited so long for the imposition of a death sentence.

While we agree that the circumstances surrounding Jordan’s pre-execution incarceration are unusual, the Mississippi Constitution prohibits unusual punishment, and the punishment Jordan asks this Court to vacate—his death sentence—is not itself unusual. Regardless of the delay, Jordan will be subjected to the same punishment as every other inmate who has been executed. So we find no merit to Jordan’s claim that his punishment violates Article 3, Section 28 of the Mississippi Constitution.

For the foregoing reasons we dismiss Jordan’s petition as moot as to claim one and deny Jordan’s petition as to claim two.

SO ORDERED, this the 13th day of June, 2017.

TO AGREE: DICKINSON AND RANDOLPH, P.JJ., COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ.

KITCHENS, J., OBJECTS WITH SEPARATE WRITTEN STATEMENT JOINED BY WALLER, C. J., AND KING, J.

KITCHENS, JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶1. In view of the statutory change, I would order supplemental briefing to allow the parties the opportunity to present arguments under the new statute. I also would order supplemental briefing to allow the parties to address whether executing an inmate more than forty years after he was sentenced to death violates the prohibition on “[ejruel or unusual punishment” found in Article 3, Section 28, of the- Mississippi Constitution. Miss. Const, art. 3, § 28 (emphasis added).

WALLER, C.J., AND KING, J., JOIN THIS SEPARATE WRITTEN STATEMENT.

      . See Reed v. Quarterman, 504 F.3d 465, 488 (5th Cir. 2007) (quoting White v. Johnson, 79 F.3d 432, 436-40 (5th Cir. 1996)) (" '[n]o other circuit hás found that inordinate delay in carrying out an execution violates the condemned prisoner’s eighth amendment rights.’ ”).

      . Petition for Writ of Certiorari, Moore v. Texas, — U.S. —, 137 S.Ct. 1039, 197 L.Ed.2d 416 (2017) (No. 15-797).


author: GREENLEE, J.,

text:
    Marlon K. JACKSON a/k/a Marlon Jackson a/k/a Marlon Kevin Jackson Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00381-COA
    Court of Appeals of Mississippi.
    08/01/2017

      HANCOCK COUNTY CIRCUIT COURT, CHRISTOPHER LOUIS SCHMIDT, J.
    ATTORNEY ■ FOR ' < APPELLANT: MARLON K. JACKSON (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ. ‘
   GREENLEE, J.,

FOR THE COURT:

¶ 1. This is an appeal from Hancock County Circuit Court where Marlon Jackson moved for post-conviction relief from his present as well as prior convictions, which was denied.' Finding ho error, we affirm.

BACKGROUND

¶2. On June 9, 2014, Jackson pleaded guilty to possession of more than one precursor chemical in violation of Mississippi Code Annotated section 41-29-313 (Rev. 2013). On June 16, 2014, he was sentenced as a habitual offender per Mississippi Code Annotated section 99-19-81 (Rev. 2015) to seven years’ imprisonment without the possibility for early release. Jackson has six prior convictions, five for burglary of a dwelling and one for sexual battery. He received sentences of one year or more for more than one of his prior convictions. On January 15, 2016, Jackson moved for post-conviction relief from his possession-of- ' precursor-chemicals conviction and sentence as well as from his prior sexual-battery conviction and sex-offender-registration requirement, which the trial court denied on February 23, 2016. On March 14, 2016, Jackson appealed to this Court.

DISCUSSION

¶ 3. We review the denial of PCR for clear error and abuse- of discretion. Ryals v. State, 51 So.3d 974, 975 (¶ 4) (Miss. Ct. App. 2010); Castro v. State, 159 So.3d 1217, 1219 (¶ 6) (Miss. Ct. App. 2015).

¶ 4. On appeal, Jackson asserts the following: (1) that the assistance of his counsel was ineffective; (2) that his habitual-offender sentence should be vacated; (3) that his sentence for his sexual-battery conviction was illegal; (4) that the indictment for his sexual-battery conviction was illegal; (5) that sexual battery is not a lesser-included offense of capital rape; (6) that the trial court did not have jurisdiction over him for his sexual-battery conviction; (7) that his sexual-battery conviction and sentence should be expunged; and (8) that he should not have to register as a sexual offender for his sexual-battery conviction.

I. Effectiveness of Jackson’s Counsel

¶ 5. To prevail on an ineffective-assistance-of-counsel claim, one must show that (1) his counsel’s performance was deficient and (2) prejudice resulted. Jackson v. State, 178 So.3d 807, 812 (¶ 19) (Miss. Ct. App. 2014) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “It is presumed that counsel’s representation falls within the range of reasonable professional assistance.” Id. at (¶ 20) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). In order to overcome the presumption, one must show that there is a reasonable probability that, but for counsel’s ineffectiveness, the result of the proceeding would have been different. Id.

¶ 6. Jackson asserts that his counsel was ineffective for his 2014 conviction because his counsel did not inform him of coming changes to the law and, had Jackson known of those changes, he would have delayed his proceedings to obtain sentencing under the amended, less-harsh sentencing statute.

¶7. In the 2014 regular session, the Mississippi Legislature amended Mississippi Code Annotated section 41-29-313, changing the maximum sentence for possession of precursor chemicals from thirty years to eight years. 2014 Miss. Laws ch. 457, § 38 (H.B. 585). The Legislature did not provide that the changed maximum sentence should apply retroactively. See 2014 Miss. Laws ch. 457 (H.B. 585).

¶ 8. The sentencing statute in effect at the time of sentencing controls. Wilson v. State, 198 So.3d 408, 415 (¶ 26) (Miss. Ct. App. 2016); Barnett-Phillips v. State, 195 So.3d 226, 229 (¶ 8) (Miss. Ct. App. 2016). When a sentencing statute is amended providing a lesser penalty and is effective prior to sentencing, the trial court must sentence according to the statute as amended. Wilson, 198 So.3d at 415 (¶ 27); Barnett-Phillips, 195 So.3d at 229 (¶ 8). Here, Jackson was sentenced to seven years. Jackson’s sentence was within the statutory requirements at the time of sentencing, as it was for less than thirty years. Had Jackson’s sentence been made under the amended sentencing structure, Jackson still would have been sentenced to less than the maximum allowable term. We fail to see that the result would have been any different had Jackson’s counsel told Jackson of the impending sentencing changes. Thus, we find this issue is without merit.

II. Jackson’s Habitual-Offender Sentence Enhancement

¶ 9. Jackson asserts that his enhanced sentence as a habitual offender should be vacated. Section 99-19-81 states that a person previously convicted of at least two prior felony or federal crimes and sentenced to one year or more for each shall be sentenced to the maximum allowable term upon conviction of a subsequent felony. Here, Jackson has five prior felony convictions for burglary of a dwelling and one prior felony conviction for sexual battery. Jackson was sentenced to a year or more for each of his prior convictions. The only prior conviction Jackson takes issue with on appeal is his sexual-battery conviction. Notwithstanding his prior sexual-battery conviction, Jackson has more than one other prior felony conviction for which he received a sentence of at least one year. Thus, we find no merit to Jackson’s arguments concerning his status and sentence as a habitual offender under section 99-19-81.

III. Jackson’s Sexual-Battery Conviction and Sex-Offender Registration

¶ 10. In 1993, Jackson was indicted for “being thirteen years of age or over, but under eighteen years of age, [and] feloniously, unlawfully and carnally knowing] [his victim], a child under the age of fourteen years at the time in question[.]” Ultimately, he pleaded guilty to sexual battery in violation of Mississippi Code Annotated section 97-3-95 (Supp. 1985). He was sentenced to twenty years’ imprisonment, which was suspended, and placed on five years’ probation. It appears Jackson was also required to register as a sexual offender after Mississippi first adopted a sex-offender-registration law in 1994. See Miss. Code Ann. §§ 45-33-1 to - 19 (repealed by 2000 Miss. Laws ch. 499, § 20, eff. July 1, 2000); Miss Code Ann. §§ 45-33-21 to -61 (Supp. 2000) (added by 2000 Miss. Laws ch. 499, § 3, eff. July 1, 2000).

¶ 11. Jackson’s motion for PCR concerns his conviction for possession of precursor chemicals. Jackson’s inclusion of other issues, his sexual-battery conviction and sex-offender registration, is contrary to the requirement that a motion for PCR be limited to one judgment. See Miss. Code Ann. § 99-39-9(2) (Rev. 2015); Brandon v. State, 108 So.3d 999, 1003-04 (¶ 10) (Miss. Ct. App. 2013). Furthermore, these other issues stem from offenses different from the one for which Jackson is presently incarcerated. Motions for PCR are limited to the conviction for which a movant is presently incarcerated. See Wilson v. State, 76 So.3d 733, 736 (¶ 11) (Miss. Ct. App. 2011); Elliott v. State, 858 So.2d 154, 155 (¶¶ 5-6) (Miss. Ct. App. 2003); Miss. Code Ann. § 99-39-5(1) (Rev. 2015).

¶ 12. Notwithstanding Jackson’s attempt to address more than one conviction in his single motion for PCR and issues stemming from convictions other than the one for which he is presently incarcerated, section 99-39-5(2) provides that a prisoner has three years after the entry of a judgment of conviction in which to move for post-conviction relief. Jackson argues that he should be excepted from the time-bar because his sentence was illegal, thus violating his fundamental right to freedom from an illegal sentence.

¶ 13. “[E]rrors affecting fundamental rights are exempt from procedural bars that would otherwise prohibit their consideration.” Elliott, 858 So.2d at 155 (¶ 4). The PCR statutes are an avenue for persons “in custody under sentence of a court of record” to seek relief from the conviction or sentence. Miss. Code Ann. § 99-39-5(1). Here, we see no indication from the record that Jackson is still serving his sentence for his sexual-battery conviction. When a PCR movant is no longer serving the sentence for which he seeks PCR, the Court is unable to address his complaint as he has no standing. Elliott, 858 So.2d at 155 (¶ 6); Wilson, 76 So.3d at 736 (¶ 11).

¶ 14. And with regard to Jackson’s sex-offender-registration requirement, sex-offender registration is not part of Jackson’s punishment or sentence, as the registration statute “establishes a civil, non-' punitive regulatory scheme." Garrison v. State, 950 So.2d 990, 993 (¶ 4) (Miss. 2006); see also Williams v. State, 161 So.3d 1124, 1126 (¶ 13) (Miss. Ct. App. 2015). Thus, because we see no indication Jackson is still serving the sentence from which he seeks relief, because post-conviction relief is only available to those presently serving the sentence of which they complain, and because sex-offender registration is not .a part of Jackson’s punishment or sentence, we find these issues are without merit.

CONCLUSION

¶ 15. The judgment of the circuit court denying Jackson’s request for post-conviction relief is affirmed.

¶ 16. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON AND WESTBROOKS, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Section 99-19-81 dictates, and the State recommended, sentencing to the maximum allowable term, which would have been twelve years’ imprisonment. However, because Jackson made an open plea, the trial judge ordered that the State’s recommendation would not be followed and sentenced Jackson to seven years’ imprisonment pursuant to Clowers v. State, 522 So.2d 762 (Miss. 1988), and Ashley v. State, 538 So.2d 1181 (Miss. 1989).


author: FAIR, J„

text:
    Leesa Crim MCCHAREN, Appellant v. Judson Moore ALLRED, III, Appellee
    NO. 2016-CA-00909-COA
    Court of Appeals of Mississippi.
    08/01/2017
    PAUL E. ROGERS, JACKSON, ATTORNEY FOR APPELLANT

      ROBERT S. MURPHREE, JACKSON, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., FAIR, WILSON AND WESTBROOKS, JJ.
   FAIR, J„

FOR THE COURT:

¶ 1. Leesa McCharen brought a claim against her ex-husband, Judson Allred III, for child support arrearages, among other claims. After almost two years of inactivity in the case, the clerk filed a motion to dismiss for want of prosecution under Mississippi Rule of Civil Procedure ' 41(d). Leesa filed a motion to reinstate the case, and a hearing was held without Judson or his attorney present. After Leesa’s motion was granted by the 'court, Judson filed a motion to set aside the order reinstating the case. The court granted Judson’s motion under Mississippi Rule of Civil Procedure 60(b), finding that there was no compelling reason for Leesa’s delay in prosecution. Leesa appeals. Finding the judge acted well within his discretion, we affirm.

FACTS

¶2. Judson and Leesa, both former attorneys, divorced in 1994. They had two daughters—one born in 1985 and the other born in 1988. The court granted Leesa physical and legal custody of the minor children, subject to Judson’s visitation rights. Unfortunately, we are not privy to the details of the divorce decree, as it was not included in the record.

¶ 3, On March 5, 2012, Leesa filed a petition for citation of contempt and motion to modify former orders of the court. She claimed Judson owed more than the $46,000 in arrearages, plus interest. Leesa also claimed that he was in willful contempt for failing to obtain medical insur-anee for the minor children and for failing to pay the insurance premiums in the amount of $51,500.08. She made various other claims, allegedly stemming from Judson’s failure to adhere to the original divorce decree. Leesa also included private school tuition and private college tuition. All in all, her claims totaled over $537,000. At the time of Leesa’s petition, their daughters were twenty-four and twenty-seven years old.

¶4. After a year of heated litigation, Leesa’s claims dwindled down to almost $136,000. Leesa’s last filing was on August 12, 2013. On October 1, 2013, Judson filed a motion to dismiss based on Leesa’s failure to add their daughters as necessary parties. The court held a hearing on the motion on October 9. No order resulting from the hearing appears in the record, but a later hearing transcript mentions that the chancellor ordered Leesa to join her daughters as parties. After that hearing, Leesa took no action whatsoever in the case. On June 1, 2015, the clerk moved that the case be dismissed under Rule 41(d). Leesa> still did nothing. The court dismissed the case without prejudice on July 9, 2015. On August 7, 2015, Leesa filed a motion to reinstate the case. Lee-sa’s attorney, Paul Rogers, asked Judson’s attorney, Robert Murphree, if he would sign an agreed order to reinstate' the case. Murphree said no. In December 2015, Rogers contacted Murphree about possible hearing dates, and he agreed to several dates. According to Murphree, that was the last he heard about the case.

¶ 5. The court held a hearing on February 25, 2016. Neither Murphree nor Judson appeared. Leesa claimed she was unaware of the clerk’s motion to dismiss because the motion listed the parties as “Allred Judson Moore” and “Allred Leesa Crim” instead of “Judson Moore Allred” and “Leesa Crim Allred.” The court ultimately granted Leesa’s motion. Murphree said it was not until April 28, 2016, that he discovered there had been a hearing, when he received some discovery from Rogers. At Murphree’s request, Rogers sent him a copy of the motion to reinstate the case.

¶ 6. Murphree filed a motion to set aside the order on May 2, 2016. A few days before the motion’s hearing, Murphree submitted an affidavit detailing his version of the events between August 2015 and the February 2016 hearing. Murphree said he never received notice of the hearing. He also included copies of his notes from conversations with the court administrator, who, on February 11, reportedly told him the case was closed.

¶ 7. On May 17, 2016, the court held a hearing on what the chancellor called a Rule 60 motion. The court found no good cause shown for Leesa’s delay and dismissed the case without prejudice. Leesa appealed.

STANDARD OF REVIEW

¶ 8. The trial court has the inherent authority to dismiss an action for lack of prosecution. Wallace v. Jones, 572 So.2d 371, 375 (Miss. 1990). We apply a substantial evidence/manifest error standard of review to the trial court’s grant or denial of a motion to dismiss pursuant to Rule 41 of the Mississippi Rules of Civil Procedure. Ill. Cent. R.R. v. Moore, 994 So.2d 723, 733 (¶ 30) (Miss. 2008). Also, we will not reverse the trial court’s denial of relief from judgment pursuant to Rule 60 of the Mississippi Rules of Civil Procedure unless the trial court has abused its discretion. Harrison v. McMillan, 828 So.2d 756, 773 (¶ 51) (Miss. 2002).

DISCUSSION

¶ 9. Mississippi Rule of Civil Procedure 41(d)(1) states that the “case will be dismissed by the court for want of prosecution unless within thirty days following said mailing [notifying the attorneys the case will be dismissed], action of record is taken or an application in writing is made to the court and good cause shown why it should be continued as a pending case.” Leesa left her case dormant for almost two years. As a result, the clerk filed a motion to dismiss on June 1, 2015. Leesa did nothing. Rule 41(d)(1) also states that “[i]f action of record is not taken or good cause is not shown, the court shall dismiss each such case without prejudice.” M.R.C.P. 41(d)(1) (emphasis added). So on July 9, 2015, the court entered an order to that effect. Twenty-nine days later, Leesa filed a motion to reinstate the case.

¶ 10. The court originally granted Lee-sa’s motion, presumably because neither Judson , nor his counsel was present at the February 2016 hearing. But after listening to Judson’s argument at the May 2016 hearing, the chancellor found no good cause had been shown and dismissed the case without prejudice under Rule 60(b)(6). In doing so, he addressed Leesa’s claim that she did not recognize the motion to dismiss, styled “Moore v. Crim”:

[Leesa’s argument that the clerk failed] to properly docket [the case] is a red herring. It’s pretty much clearly docketed as this case .... (T)he clerk may have reversed the order of the names, but, goodness gracious, the last name “Allred” leads in both reference to plaintiff and defendant, so I don’t think you can possibly make that argument with a straight face.

¶ 11. On appeal, Leesa abandons her sole argument from the trial court and instead argues that: (1) prior to dismissal, the statute of limitations of Leesa’s claim had expired; and (2) Judson delayed litigation with frivolous motions. It is well established that this Court -will not consider issues raised for the first time on appeal. Fowler v. White, 85 So.3d 287, 293 (¶ 21) (Miss. 2012). Thus, we decline to address Leesa’s current arguments.

¶ 12. Rule 60(b)(6) allows a judge the opportunity to relieve a party from a final judgment for any justifiable reason. M.R.C.P. 60(b)(6). After careful review of the record, we find the chancellor acted within his discretion in finding that Leesa failed to show any compelling reason for her delay in prosecution. Accordingly, we affirm the chancellor’s order setting aside the order reinstating the case.

¶ 13. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . Judson’s attorney claimed that the court administrator told him no hearing was set on the docket.