text:
    STATE of Louisiana v. Clarence E. DIXON
    NO. 17-KA-422
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Andrea F. Long, Andrew Decoste, Douglas E. Rushton
    COUNSEL FOR DEFENDANT/APPELLANT, CLARENCE E. DIXON, Sherry A. Watters
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Marion F. Edwards, Judge Pro Tempore
   EDWARDS, JUDGE PRO TEMPORE, J.

Defendant appeals his convictions and sentences for possession with the intent to distribute heroin and attempted possession of cocaine on the basis other crimes evidence was improperly admitted, expert testimony was allowed on the packing, sales and trafficking of drugs without any showing of the accepted standards for the expert opinion, and his sentences are unconstitutionally excessive. For following reasons, we affirm Defendant's convictions, amend Defendant's sentence for count one, and affirm as amended. We vacate Defendant's sentence on count two and remand to the trial court for resentencing.

Defendant, Clarence Dixon, was charged in a bill of information on February 6, 2015 with possession with intent to distribute heroin in violation of La. R.S. 40:966(A) (count one) and possession of cocaine in violation of La. R.S. 40:967(C) (count two). The State subsequently amended count two of the bill to charge Defendant with possession with intent to distribute cocaine in violation of La. R.S. 40:967(A). Defendant proceeded to trial on September 13, 2016 before a 12-person jury, which found him guilty as charged as to count one and guilty of the lesser included offense of attempted possession of cocaine on count two.

On October 14, 2016, after denying Defendant's motions for post-verdict judgment of acquittal and new trial and after delays were waived, the trial court sentenced Defendant to 50 years imprisonment at hard labor with the first 10 years without benefit of parole, probation or suspension of sentence on count one and to two and one-half years imprisonment on count two to run concurrently with each other.

FACTS

At approximately 9:15 p.m. on January 23, 2015, Deputy Salvador Provenzano with the Jefferson Parish Sheriff's Office (JPSO) Reserve Task Force and his partner were patrolling in the 6500 block of Airline Highway in a marked police unit when he noticed a Nissan SUV that had a license plate with an expired registration. He initiated a traffic stop and approached the SUV's driver's side while his partner approached the passenger side. Deputy Provenzano observed two individuals, the driver and a passenger, identified as Defendant, inside the vehicle and noted the two were engaged in furtive activity within the vehicle.

He spoke with the driver, Jenny Montecino, who provided her driver's license and indicated that she did not have registration or insurance for the vehicle. Deputy Provenzano learned that Ms. Montecino's driver's license was suspended and that she had several outstanding warrants. Deputy Provenzano's female partner then performed a pat-down search on Ms. Montecino. The deputy subsequently advised Deputy Provenzano that Ms. Montecino indicated she had narcotics in her underwear.

Meanwhile, Deputy Provenzano went to the passenger side of the vehicle where he encountered Defendant, who had a stack of money in his hands that he was trying to hide. Deputy Provenzano explained that Defendant had no identification on him, was not truthful in providing his name and Social Security number, and was acting like he wanted to run or get away, so Deputy Provenzano placed Defendant in handcuffs for safety purposes and advised him of his Miranda rights.

Deputy Nicholas Buttone with the JPSO's Narcotics Division subsequently arrived on the scene to assist with the narcotics investigation. Upon his arrival, he learned that heroin and crack cocaine were recovered from Ms. Montecino's person. Deputy Buttone spoke with Ms. Montecino who advised that additional narcotics, specifically heroin, were located in a motel room at the Knights Inn Motel where she and Defendant were living. A search of the motel room pursuant to a search warrant yielded a bag of heroin containing 43 grams, two bottles of room deodorizer, a digital scale, and Defendant's driver's license.

At trial, Ms. Montecino testified that she had known Defendant for approximately nine years and that he was the father of two of her sons. She recalled that on the morning of January 23, 2015, she took her son to school and returned to the motel room where she and Defendant had been staying for several months. At some point late in the morning after Defendant's customers had been calling his cell phone, the two prepared to leave the room so Defendant could "meet his clients for the sales." Ms. Montecino explained that Defendant sold heroin and crack.

She recounted the traffic stop that morning, explaining that when the police activated their lights to pull them over, Defendant told her to "stuff" the drugs in her pants. She explained that when the officers spoke with her, she willingly turned over the drugs because she was scared and the drugs were not hers. She also told the officers about a red box containing heroin that was in the motel room, as well as a scale and room deodorizer Defendant used to cut the drugs.

Sergeant Joshua Collins with the JPSO testified as an expert in the field of narcotics investigations, distribution, and pricing and packaging. He reviewed the evidence and noted factors-the large amount of money ($2,568) seized from the vehicle and the fact it was mostly in $20 increments, the digital scale, and room deodorizer -that indicated the narcotics in this case, both the heroin and cocaine, were intended for distribution. He also pointed to the amount of heroin, 43 grams, as another factor that was consistent with the intent to distribute. He further opined that although the actual amount of cocaine was small, less than one gram, the totality of the circumstances indicated it was being distributed.

DISCUSSION

Other Crimes Evidence

Defendant first argues there were no valid grounds for the admission of his 2010 convictions for possession of heroin and cocaine, as none of the exceptions listed in La. C.E. art. 404(B)(1) applied. He specifically maintains there was no genuine issue of intent because there was expert testimony that the evidence in the present case was indicative of sales. He claims the State impermissibly used his prior convictions solely to impugn his character and to show his alleged predisposition to commit such acts. Defendant further avers that the 2010 convictions were cumulative evidence and that their probative value did not outweigh the prejudicial effects. He also asserts that the trial court erred in denying his request for a contemporaneous, limiting jury instruction.

Evidence of other crimes or bad acts committed by a criminal defendant is generally not admissible at trial. La. C.E. art. 404(B)(1) ; State v. Prieur , 277 So.2d 126, 128 (La. 1973). However, when such evidence tends to prove a material issue and has independent relevance other than showing that the defendant is of bad character, it may be admitted by certain statutory and jurisprudential exceptions to the exclusionary rule.

State v. Joseph , 16-349 (La. App. 5 Cir. 12/14/16), 208 So.3d 1036, 1047, writ denied , 17-77 (La. 4/7/17), 218 So.3d 109. Under La. C.E. art. 404(B)(1), evidence of other crimes is allowed to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In order for other crimes evidence to be admitted under La. C.E. art. 404(B)(1), one of the above enumerated factors in the article must be at issue, have some independent relevance or be an element of the crime charged. Joseph , supra. Additionally, the probative value of the extraneous evidence must outweigh its prejudicial effect. Id. , citing La. C.E. art. 403. The defendant bears the burden to show that he was prejudiced by the admission of the other crimes evidence. Absent an abuse of discretion, a trial court's ruling on the admissibility of evidence under Article 404(B)(1) will not be disturbed. Joseph , 208 So.3d at 1047.

In its notice of intent to introduce other crimes evidence, the State indicated its intent to introduce evidence of a prior act where Defendant possessed heroin and cocaine with the intent to distribute them. The State asserted the evidence was relevant to prove Defendant had specific intent to distribute the drugs found in his possession in the present case. At the contradictory hearing, the State relayed that in connection with the prior act, Defendant had pled guilty to possession of heroin and cocaine after having been charged with possession with intent to distribute both drugs. After argument of counsel, the trial court ruled that the other crimes evidence was admissible as it was relevant to show intent and knowledge. The trial court specifically found the probative value of the evidence outweighed any prejudicial effects.

At trial, the State presented the other crimes evidence through the testimony of Sergeant Mark Layrosson. Sergeant Layrosson testified that he participated in the execution of a search warrant in 2009, and that the search yielded 4.7 grams of crack cocaine, some of which was wrapped in clear plastic bags, and .8 grams of heroin and aluminum foil inside a clear plastic bag with rice. During the execution of the search warrant, Defendant was found inside the residence, holding a razor blade and sitting at a table with narcotics and plastic bags with the corners cut off. A certified conviction packet introduced into evidence showed that Defendant had been charged with possession with intent to distribute heroin and cocaine in connection with the incident and subsequently pled guilty to the amended charges of possession of heroin and cocaine.

In this case, Defendant was charged with possession with intent to distribute heroin and cocaine, which requires proof that he knowingly and intentionally possessed the drug and that he did so with the specific intent to distribute it. La. R.S. 40:966(A) ; La. R.S. 40:967(A) ; State v. Bell , 15-354 (La. App. 5 Cir. 10/28/15), 178 So.3d 234, 240. As such, intent is an essential element of the crime of possession with intent to distribute. Evidence of prior acts of distribution or previous attempts to distribute may be considered in establishing intent. State v. Hill , 11-2585 (La. 3/9/12), 82 So.3d 267 (per curiam ). See also Bell, supra (where this Court found that a prior conviction of possession of cocaine was relevant to establish intent in a subsequent charge of possession of cocaine with intent to distribute).

Sergeant Layrosson testified that Defendant gave a statement in connection with the 2009 incident wherein he admitted the drugs found in the residence belonged to him. Sergeant Layrosson also testified that Defendant was found in possession of a razor blade, which is used to cut narcotics into different sizes. He further testified that the narcotics and plastic baggies with the corners cut were found on the table. He explained that it is common for drug dealers to cut drugs into different sizes, place them in plastic baggies, and tie them up to prepare them for street level sales. We find that this evidence had an independent relevance to show Defendant's intent to distribute heroin and cocaine in the current offenses and, therefore, was admissible for this purpose under La. C.E. art. 404(B)(1).

Additionally, we find no abuse of the trial court's discretion in finding that the probative value of the other crimes evidence outweighed its prejudicial effect. The trial court gave a limiting instruction to the jury before its deliberation specifically instructing the jury that it may not find Defendant guilty of the charged offenses merely because he may have committed another offense. The jury was further instructed that the sole purpose for which the evidence that Defendant was involved in the commission of another offense could be considered was whether it tended to show his intent to distribute the drugs.

Defendant argues the trial court erred in denying his request for a limiting instruction at the time the evidence was introduced despite his written and oral requests that a limiting instruction be given both at the time the State sought to introduce the evidence and again at the time the jury was charged. Under Prieur , 277 So.2d at 130, at the request of the defendant, the court shall give a limiting instruction to the jury as to the limited purpose of the other crimes evidence before such evidence is introduced. This instruction is distinguishable and separate from the required limiting instruction to be given to the jury before deliberation. Id.

The Louisiana Supreme Court has found that the failure to provide a limiting instruction at the time the evidence is introduced is subject to a harmless error analysis. State v. Maise , 00-1158 (La. 1/15/02), 805 So.2d 1141, 1152, overruled in part on other grounds by State v. Bernard , 09-1178 (La. 3/16/10), 31 So.3d 1025, 1030. In Maise , the supreme court found that the trial judge's failure to give a limiting instruction at the time the evidence was introduced was harmless where the trial judge charged the jury with the limiting instruction at the conclusion of the trial. The supreme court noted that there was no indication the trial error had any influence on the defendant's conviction. Similarly, in Bell , 178 So.3d at 242, this Court found that the limiting instruction before deliberations cured the procedural error of the trial court in not giving a limiting instruction at the time the State's evidence was introduced. Likewise, in the present case, we find the limiting instruction before jury deliberations cured the procedural error of the trial court in not giving a limiting instruction at the time the other crimes evidence was introduced.

Based on the foregoing, we find no error in the trial court's ruling allowing other crimes evidence to be admitted at trial.

Expert Testimony

Defendant next argues the trial court erred in accepting Sergeant Joshua Collins as an expert where his alleged expertise was based upon his experience in work that was not outside the jury's understanding and was not based upon a scientific method. He also contends that Sergeant Collins' qualifications were so lacking the trial court abused its discretion in accepting him as an expert. He further asserts that Sergeant Collins was impermissibly allowed to express opinion on decisions that were only within the province of the jury.

As pointed out by the State in its appellee brief, Defendant failed to object to Sergeant Collins' qualification as an expert either before trial or at trial. The record shows that several months before trial, the State filed a notice of expert witness, notifying Defendant of its intent to introduce the testimony of Sergeant Collins as an expert in the field of illicit narcotics, packaging, quantity, and pricing. Defendant did not file an opposition to this motion. Additionally, Defendant did not object to the tender of Sergeant Collins as an expert at trial. In fact, after defense counsel's traversal and the State's tender of Sergeant Collins as an expert in the field of narcotics investigations, distribution, and pricing and packaging, defense counsel expressly stated that he had no objection, after which the trial court qualified Sergeant Collins as an expert in the specified field. Further, we note that while Defendant generally argued that Sergeant Collins' testimony should be disregarded in his motion for post-verdict judgment of acquittal, he never asserted that the trial court erred in accepting Sergeant Collins as an expert or that he lacked the necessary qualifications.

In order to preserve the right to seek appellate review of an alleged trial court error, the party alleging the error must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. La. C.Cr.P. art. 841 ; State v. Gaal , 01-376 (La. App. 5 Cir. 10/17/01), 800 So.2d 938, 949, writ denied , 02-2335 (La. 10/03/03), 855 So.2d 294. The purpose of the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity, allowing him the opportunity to make the proper ruling and correct any claimed prejudice to the defendant, procedural irregularity, or evidentiary mistake. Id. Further, a defendant is limited to the grounds for objection that he articulated in the trial court, and a new basis for the objection may not be raised for the first time on appeal. State v. Taylor , 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 594.

In the present case, Defendant never objected to the qualifications of Sergeant Collins as an expert or the reliability or admissibility of expert testimony relating to narcotics investigation, distribution, and pricing and packaging. As such, he waived any such objection and the issue is not properly considered on appeal. See State v. Tillery , 14-429 (La. App. 5 Cir. 12/16/14), 167 So.3d 15, 24, writ denied , 15-106 (La. 11/6/15), 180 So.3d 306.

Excessiveness of Sentences

In his final argument, Defendant asserts that both his sentences are unconstitutionally excessive. Defendant first argues that his two and one-half year sentence for attempted possession of cocaine (count two) exceeds the sentence allowed under the statute, and thus is excessive on its face. He next contends that his 50-year maximum sentence for possession with intent to distribute heroin (count one) is excessive considering there were no weapons involved and no record of violence. He contends that the maximum sentence is reserved for the most egregious violations of which this is not. He further asserts that the trial court's failure to consider mitigating factors requires the sentence be vacated and the case remanded for resentencing.

First, we pretermit a discussion of the excessiveness of Defendant's two and one-half year sentence on count two because we must vacate it as discussed infra under our errors patent discussion. However, we note that contrary to Defendant's claim that the sentence is excessive on its face because it exceeds the statutory range, or essentially is an illegal sentence, the sentence is within the statutory range of La. R.S. 40:967 and 40:979 in effect at the time of Defendant's offense.

Second, insofar as Defendant contends his sentences must be vacated and the matter be remanded for resentencing because the trial court failed to consider mitigating factors, we note that Defendant did not raise this ground at the trial court in his motion to reconsider sentence; rather, his motion merely alleged that his sentence on count one was excessive. A motion for reconsideration of sentence must set forth specific grounds upon which the motion is based. La. C.Cr.P. art. 881.1. The failure to state the specific grounds upon which a motion to reconsider is based precludes a defendant from raising issues relating to statutory errors or deficiencies, such as compliance with La. C.Cr.P. art. 894.1, and limits a defendant to a review of the sentence for constitutional excessiveness only. State v. Hunter , 11-787 (La. App. 5 Cir. 4/24/12), 94 So.3d 797, 800. Thus, we will review Defendant's sentence on count one solely for constitutional excessiveness.

Defendant received the maximum 50-year sentence for his possession with intent to distribute heroin conviction, for which the sentencing range is 10-50 years. La. R.S. 40:966(B)(4)(a).

The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. Article I, § 20 of the Louisiana Constitution also prohibits cruel and unusual punishment, but further explicitly prohibits excessive punishment. A sentence is constitutionally excessive "if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime." State v. Davis , 449 So.2d 452, 453 (La. 1984). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson , 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622, writ denied , 05-244 (La. 12/9/05), 916 So.2d 1048.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion not whether another sentence might have been more appropriate. State v. Dorsey , 07-67, p. 5 (La. App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130, writ denied , 08-1649 (La. 4/17/09), 6 So.3d 786. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson , 07-332, p. 15 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Id. , 07-332 at 15-16, 975 So.2d at 656. Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. Badeaux , 01-406 (La. App. 5 Cir. 9/25/01), 798 So.2d 234, 239, writ denied, 01-2965 (La. 10/14/02), 827 So.2d 414.

In State v. Collins , 09-283 (La. App. 5 Cir. 12/8/09), 30 So.3d 72, writ denied, 10-0034 (La. 9/3/10), 44 So.3d 696, this Court found the trial court did not abuse its discretion in sentencing the defendant to thirty-five years at hard labor for possession of heroin with intent to distribute it from a hotel room. In Collins , this Court noted that prior to the amendment to of La. R.S. 40:966(B) in 2001, the penalty was mandatory life imprisonment, and found no cases since the amendment that were comparable to the facts and sentence. But noted, however, that prior to the amendment of the statute, this Court upheld a mandatory life sentence for a conviction of possession with intent to distribute heroin even though the crime is not a violent offense, and the defendant was only twenty-one years old. (Citing State v. Jackson , 99-1368, p. 8 (La. App. 5 Cir. 5/17/00), 762 So.2d 253, 258, writ denied , 00-1948 (La. 9/21/01), 797 So.2d 60 ). The Collins court further noted defendant's prior felony convictions, which would have subjected him to a sentencing range of 20 years to life, and that the State did not file a habitual offender bill in finding that the trial judge did not abuse his discretion in sentencing the defendant.

In the instant case, the record shows that, when imposing Defendant's sentences, the trial court noted that it had considered the testimony of the witnesses at trial and took into consideration the sentencing guidelines. The trial court also noted Defendant's previous conviction involving narcotics. Considering the amount of heroin seized, Defendant's criminal history, as well as the fact that the State could have filed a habitual bill in this case, we cannot say that Defendant's sentence for count is either unconstitutionally excessive or an abuse of the trial court's discretion.

ERRORS PATENT

Pursuant to La. C.Cr.P. art. 920, we reviewed the record for errors patent and found two errors that require corrective action.

First, the record reflects that the trial judge restricted parole on count one; however, at the time of the offense, La. R.S. 40:966(B)(4)(a) did not provide any restriction on parole. See State v. Gayden , 14-813 (La. App. 5 Cir. 2/11/15), 168 So.3d 766, 768. In cases in which a sentencing error by the trial court does not involve the omission of a restrictive term specified by the legislature as part of the sentence but the imposition of limits beyond what the legislature has authorized in the sentencing statute, this Court has corrected the sentence on its own authority under La. C.Cr.P. art. 882 to correct an illegal sentence "at any time." Gayden, supra (citing State v. Sanders , 04-17 (La. 5/14/04), 876 So.2d 42 (per curiam) ). Accordingly, we amend the sentence to delete the restriction on parole. We further remand this matter to order the trial court to transmit the original of the corrected uniform commitment order to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections' legal department. See State v. Long , 12-184, pp. 10-11 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 (citing La. C.Cr.P. art. 892(B)(2) ).

Second, the trial court imposed an indeterminate sentence on count two because it failed to indicate whether the two and one-half year sentence is to be served at hard labor. Defendant was convicted of attempted possession of cocaine. Under La. R.S. 40:979, he is to be imprisoned in the same manner as for the offense attempted. At the time of his offense, imprisonment for possession of cocaine was to be with or without hard labor. La. R.S. 40:967(C). When, as in this case, the applicable sentencing statute allows discretion, the sentencing court's failure to indicate whether the sentence is to be served at hard labor is an impermissible, indeterminate sentence. State v. Joseph , 16-191 (La. App. 5 Cir. 12/7/16), 205 So.3d 1013, writ denied , 17-299 (La. 11/17/17), 230 So.3d 216. Thus, we are forced to vacate Defendant's sentence on count two and remand the matter to the trial court for the imposition of a determinate sentence in accordance with La. C.Cr.P. art. 879.

DECREE

For the foregoing reasons, we affirm Defendant's convictions for possession with intent to distribute heroin and attempted possession of cocaine. We amend Defendant's sentence for count one, and affirm as amended. We vacate Defendant's sentence on count two and remand to the trial court for resentencing.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, VACATED IN PART; REMANDED FOR RESENTENCING

JOHNSON, J., CONCURS IN PART, DISSENTS IN PART WITH REASONS

I concur with the majority in affirming Defendant's convictions and in vacating Defendant's sentence on count two for attempted possession of cocaine as indeterminate. However, I find Defendant's maximum 50-year sentence on count one for possession with intent to distribute heroin to be excessive and, therefore, dissent from the majority on this issue.

As noted by the majority, the Louisiana Constitution explicitly prohibits excessive punishment. The deliberate inclusion by the redactors of the Louisiana Constitution of a prohibition against "excessive" punishment in addition to cruel and unusual punishment prohibited by the Eighth Amendment of the United States Constitution broadened the duty of courts to review the sentencing aspects of criminal statutes. State v. Baxley , 94-2982 (La. 5/22/95), 656 So.2d 973, 977. This constitutional protection against excessive sentence allows courts to review a sentence within the statutorily prescribed range to determine whether the sentence of the particular offender is excessive. Id.

While a trial judge is given wide discretion in the imposition of sentences within statutory sentencing ranges, a sentencing judge does not possess unbridled discretion to impose a sentence within statutory limits. State v. Sepulvado , 367 So.2d 762, 769-70 (La. 1979). "In providing a wide range of criminal sanctions for violations of a statute, the legislature obviously intends that the judge shall exercise his sentencing discretion to impose sentences gradated according to the individualized circumstances of the offense and the offender." Id. at 766. The "interactivity between the range of permissible statutory criminal sanctions and the individualized facts of each case creates a sliding, fact-variant spectrum for a trial judge's discretion under each criminal statute for each particular criminal defendant." State v. Hamdalla , 12-1413 (La. App. 4 Cir. 10/2/13), 126 So.3d 619, 627, writ denied , 13-2587 (La. 4/25/14), 138 So.3d 642.

Although the majority recognizes that maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender, the majority fails to explain how Defendant's offense constitutes the most serious violation or that Defendant is the worst type of offender. The majority simply cites a case, State v. Collins , 09-283 (La. App. 5 Cir. 12/8/09), 30 So.3d 72, writ denied , 10-34 (La. 9/3/10), 44 So.3d 696, wherein the defendant received 35 years for the same charge with similar circumstances, and inexplicably concludes Defendant's maximum 50-year sentence is not unconstitutionally excessive. Collins did not involve a maximum sentence, but rather a mid-range sentence, and thus is not instructive, nor does it lend guidance, on the issue.

In my opinion, the majority simply regurgitates the applicable law without engaging in meaningful review and concludes Defendant's maximum sentence is not excessive. It is clear that the majority fails to apply the three factors to be considered when determining whether a trial court abused its sentencing discretion-the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes by the same court and other courts. State v. Bruce, 11-991 (La. App. 5 Cir. 10/30/12), 102 So.3d 1029, 1035, writ denied , 12-2568 (La. 4/26/13), 112 So.3d 839.

When considering these three factors, it is apparent the trial court abused its sentencing discretion and Defendant's sentence is excessive. Considering the first factor, the nature of the crime, the heroin, 43 grams or 1 ½ ounces, was found in a box in a motel room where Defendant was staying, as testified to by his co-defendant and as evidenced by his driver's license being found in the room, after Defendant and his co-defendant were pulled over for a traffic violation and Defendant's co-defendant divulged the location of the heroin.

Regarding the second factor, the nature and background of the offender, Defendant has prior convictions for possession of heroin and cocaine, both of which are non-violent like the present offense. The Louisiana Supreme Court has stated that "the classification of a defendant's instant or prior offenses as non-violent should not be discounted" and that a court may consider the violent or non-violent nature of the defendant's prior crimes when reviewing a sentence for excessiveness. State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, 676.

Most telling is the third factor-sentences imposed for similar crimes in this and other courts. The jurisprudence fails to reveal the imposition of a maximum 50-year sentence in a similar situation. Rather, the jurisprudence shows that the sentences imposed for similar offenses for which Defendant was convicted range from 20 to 40 years. See State v. St. Amant , 14-607 (La. App. 5 Cir. 3/11/15), 169 So.3d 535 (where the defendant, who had prior convictions for possession of cocaine, was sentenced to 20 years on each of three counts of distribution of heroin and then resentenced as a second felony offender on one of the three counts to 30 years; the case involved undercover drug buys, and the facts demonstrated that the defendant persistently sold drugs through the use of several middlemen;); State v. Collins , 09-283 (La. App. 5 Cir. 12/8/09), 30 So.3d 72, writ denied , 10-34 (La. 9/3/10), 44 So.3d 696, cited by the majority (where the defendant, who had four prior felony convictions, was sentenced to 35 years for his possession with intent to distribute heroin conviction; the case involved an investigation of persons selling narcotics from a hotel room and a search of the hotel room pursuant to a warrant yielded a clear plastic bag containing four small packages of heroin on the dresser, a clear plastic bag containing marijuana under the mattress, a digital scale, sandwich bags on a table, a razor blade, and $1,145 in currency);

State v. Dee , 09-712 (La. App. 5 Cir. 2/23/10), 34 So.3d 892, writ denied , 10-705 (La. 10/29/10), 48 So.3d 1097 (where the defendant received a 40-year sentence for his possession with intent to distribute heroin conviction; the defendant had a significant criminal history including convictions for manslaughter and attempted possession of cocaine and arrests for aggravated battery, aggravated assault, armed robbery, and possession of a firearm by a convicted felon; the case involved an undercover drug buy from a motel, and a search of the motel room pursuant to a warrant yielded scales, a cutting agent, aluminum foil, and heroin all which indicated the defendant had an ongoing business involving the sale of heroin); State v. Jackson , 05-1281 (La. App. 4 Cir. 11/29/06), 947 So.2d 115, writ denied , 07-24 (La. 9/14/07), 963 So.2d 996 (where the defendant received a 20-year sentence for his conviction of possession with intent to distribute heroin; the case involved the discovery of a clear plastic bag containing rice and 11 tinfoil packets of heroin found in plain view during a traffic stop where there was a three-year-old child in the car). See also State v. Adams , 39,792 (La. App. 2 Cir. 6/29/05), 907 So.2d 844, writ denied , 06-259 (La. 8/18/06), 935 So.2d 136 (where the defendant's maximum 30-year sentences on four counts of distribution of narcotics was found to be excessive in a case involving undercover drug buys).

In really considering these factors and after a thorough review of this record, I do not find that the evidence supports a finding that this case involved the most serious violation of the offense and the worst type of offender.

Furthermore, I note that had Defendant committed the offense 18 months later, he would have been subject to a maximum sentence of only 40 years. Recently, in Acts 2017, No. 281, effective August 1, 2017, the Legislature amended the sentencing range for possession with intent to distribute heroin by reducing it to a range of five to 40 years. While the amendments to La. R.S. 40:966 were not given retroactive effect, that does not mean this Court cannot consider the expression of legislative will at the time the amendment reducing the applicable penalties was passed. See State v. Jarreau , 05-355 (La. App. 4 Cir. 12/14/05), 921 So.2d 155, 162-63, writ denied , 06-131 (La. 6/14/06), 929 So.2d 1267.

While I am cognizant of the destructive impact that controlled dangerous substances have on society, a sentence must be particularized to the offender and the offense. See State v. Riley , 587 So.2d 130 (La. App. 2d Cir. 1991) (where the court found the sentencing judge's concern over the severe social problems involving narcotics improperly outweighed his consideration of the individual offense and offender and, as a result, vacated the defendant's 25-year sentence for possession of more than 400 grams of cocaine as excessive).

For the reasons discussed, I find Defendant's maximum 50-year sentence for possession with intent to distribute heroin is disproportionate to the harm done and shocks one's sense of justice. The 50-year sentence is far more than necessary to protect society's interest and to punish and rehabilitate this offender. As such, I find his sentence is unconstitutionally cruel for this type of defendant, and I would vacate his sentence and remand the matter for resentencing.

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

      Ms. Montecino testified that her son did not stay with her and Defendant in the motel room but rather was staying with her parents.

      Sergeant Collins explained that the room deodorizer found in this case is commonly used as a cutting agent for heroin as it is a similar color and texture. He explained it is mixed with the heroin to increase its weight and, hence, profit.

      Defendant asserts in his appellate brief that these convictions occurred in 2009. However, the record shows that while the offenses occurred in 2009, Defendant pled guilty in 2010.

      Although we pretermit Defendant's argument that his two and one-half-year sentence for attempted possession for cocaine is excessive because it exceeds the statutory range, I feel compelled to note that Defendant appears to rely on the wrong statutory provision. It appears Defendant's argument is based on the recently amended version of La. R.S. 40:967(C), which changed the penalty provisions for offenses related to Schedule II drugs effective August 1, 2017. Under the 2017 amendments, the penalty for possession of cocaine is dependent on the aggregate weight of the cocaine involved. These amendments have no effect on this appeal, as it is well-settled that the penalty set forth in the statute in effect at the time the offense is committed applies. State v. Sugasti , 01-3407 (La. 6/21/02), 820 So.2d 518, 520.


source: Caselaw Access Project

author: JOHNSON, J.

license: Public Domain

text:
    STATE of Louisiana v. David BRIGNAC
    NO. 17-KA-455
    Court of Appeal of Louisiana, Fifth Circuit.
    March 14, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, Andrew Decoste
    COUNSEL FOR DEFENDANT/APPELLANT, DAVID BRIGNAC, Bruce G. Whittaker
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Marion F. Edwards, Judge Pro Tempore
   JOHNSON, J.

Defendant appeals his convictions and sentences for possession of a firearm by a convicted felon and illegal use of weapons. For the reasons that follow, we affirm Defendant's conviction and sentence for felon in possession of a firearm and his conviction for illegal use of weapons. However, we vacate his sentence on his illegal use of weapons conviction and remand the matter for resentencing.

Defendant was initially charged on December 5, 2014 with two counts of illegal use of weapons in violation of La. R.S. 14:94 and pled not guilty. The State subsequently filed a superseding bill of information on May 5, 2016, charging Defendant with one count of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count one) and one count of illegal use of weapons by discharging a firearm (count three). After a Faretta colloquy, Defendant was allowed to represent himself with the assistance of appointed counsel. The matter proceeded to a bench trial on September 15, 2016, and the trial court found Defendant guilty as charged on both counts.

Prior to sentencing, defense counsel moved for the appointment of a sanity commission to consider Defendant's mental capacity to proceed as well as his competency at the time of his trial. The sanity commission conducted an evaluation of Defendant and recommended that Defendant be found incompetent to proceed to sentencing. It deferred its opinion as to Defendant's competency status at the time of trial until it had an opportunity to review the trial transcripts and other related documentation. Despite the sanity commission's recommendation, the trial court found Defendant competent to proceed. Defendant sought a supervisory writ from this ruling, which this Court denied. State v. Brignac , 16-694 (La. App. 5 Cir. 12/9/16) (unpublished writ disposition).

Thereafter, on February 2, 2017, after denying Defendant's motions for post-verdict judgment of acquittal and new trial, the trial court sentenced Defendant to 12 years imprisonment at hard labor without benefit of parole, probation or suspension of sentence on his felon in possession of a firearm conviction, and two years on his illegal use of weapons conviction, to run concurrently with each other.

FACTS

In October 2014, Deputy Brent Baldassaro with the Jefferson Parish Sheriff's Office was dispatched to a wooded area near Destrehan Avenue close to the Harvey Canal in response to a report of someone shooting in the area. He turned down a dirt road heading toward the canal when he encountered a red Chevy Cobalt. Deputy Baldassaro testified that live ammunition indicative of an assault rifle was found around the vehicle. He stated that an assault rifle and magazine associated with the rifle were found separately in the nearby woods. He further testified that two individuals, one of whom was Defendant, were subsequently found hiding in the woods.

A witness, Chris Carr, later interviewed by the police, indicated that he had been in an automobile with Defendant, who he identified in a photographic lineup, and another individual, and that there was a firearm located in the vehicle. Although Mr. Carr testified at trial that he did not see Defendant discharge a firearm on that day, the deputy who interviewed Mr. Carr contradicted his claim, stating that Mr. Carr indicated during his interview that he had personally witnessed Defendant discharge the firearm.

The State also presented the testimony of Sergeant Joel O'Lear, a latent print examiner with the Jefferson Parish Sheriff's Office Crime Laboratory, who examined Defendant's fingerprints taken the morning of trial and opined that Defendant was the same person who had been convicted in 2006 for distribution of cocaine as evidenced by the fingerprints contained in the 2006 certified conviction packet that was introduced into evidence.

ISSUES

Defendant raises two issues on appeal. First, he asserts the trial court abused its discretion in declaring him competent to proceed to trial. Second, he contends the trial court erred in failing to obtain a valid jury trial waiver before proceeding with a judge trial.

DISCUSSION

Competency

Defendant first argues that the trial court abused its discretion in rejecting the sanity commission's unanimous recommendation that he was incompetent to proceed to trial. Defendant acknowledges that this issue was previously addressed by this Court in a writ disposition, but requests that this Court reconsider the issue. The State responds that Defendant's claim should be denied under the "law of the case" doctrine since this Court previously denied relief on this issue in Defendant's writ application, 16-KH-694.

Under the "law of the case" doctrine, an appellate court will generally refuse to reconsider its own rulings of law on a subsequent appeal in the same case. State v. Earls , 12-448 (La. App. 5 Cir. 12/11/12), 106 So.3d 1149, 1159, writ denied , 13-132 (La. 9/20/13), 122 So.3d 1012. Application of the "law of the case" doctrine is discretionary and the prior denial of a supervisory writ does not bar reconsideration of an issue on appeal, nor does it prevent the appellate panel from reaching a different conclusion on the issue. State v. Voltolina , 10-1090 (La. App. 5 Cir. 10/25/11), 77 So.3d 1027, 1031. Reconsideration is warranted when, in light of a subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. Earls, supra .

In this Court's previous ruling on Defendant's writ application, the writ panel thoroughly and carefully considered the merits of Defendant's claim that the trial court erred in finding him competent to proceed to sentencing despite the sanity commission's contrary recommendation. The panel concluded that on the showing made, which consisted of the transcript of the competency hearing during which Dr. Rafael Salcedo testified, the trial court did not abuse its discretion. The panel noted that the trial judge based his ruling on his year and a half of interaction with Defendant during which he explicitly found Defendant understood the proceedings as demonstrated by his self-representation, his various conversations with the trial judge, and the questions he asked and arguments he made during trial. State v. Brignac , 16-694 (La. App. 5 Cir. 12/9/16) (unpublished writ disposition). In reviewing the full and complete record on appeal, which consists of the trial transcript as well as various motion hearing transcripts, we find no reason to disturb the writ panel's previous ruling on this issue. Defendant has failed to cite any new facts or additional jurisprudence indicating that this Court's prior disposition was patently erroneous and produced an unjust result, nor does the full record reveal any new evidence indicating such.

Jury Trial Waiver

Defendant next argues that he was entitled to a jury trial but proceeded to a judge trial without a valid waiver. He notes the waiver of a jury trial cannot be presumed, but must be knowingly and voluntarily waived. He contends the record is silent on the issue of a jury trial waiver as there is no colloquy on the issue in any of the transcripts or any reference to a jury trial waiver in the minutes; thus, because there is no evidence of a valid jury trial waiver, he maintains his convictions and sentences should be set aside and the matter remanded for a new trial.

The State responded by filing a motion to supplement the record with a transcript of Defendant's jury trial waiver, which was granted by this Court. The supplement shows that on August 29, 2016, Defendant, appearing in proper person after having been granted the right to self-representation, the prosecutor and the trial judge were discussing the scheduling of trial in open court. The trial judge informed Defendant that trial would be set for August 31, 2016, to which Defendant assented. Defendant then stated, "Excuse me, Your Honor; for the record, I would like to do a Judge Trial." Defendant was sworn in and the following colloquy took place:

THE COURT:
Okay. Mr. Brignac, what you need to know is, you have the right to do that. You have the right to request a Judge Trial.
But what I want you to know is, is that for nineteen years of my life, I was an Assistant D.A., just like Mr. DeCoste over there. Okay?
I tried a lot of cases. Okay. Against Mr. Somoza, and other people that are in this building.
Alright? I want you to understand that, that I've seen and pretty much heard just about everything.
I'll be fair, I'll listen to all the evidence and go where it directs me, but I think it's important for you to understand what I did for a living before I became a Judge. Alright?
Knowing all of that, you still wish to proceed as a Judge Trial?
[DEFENDANT]:
Yes, sir.
THE COURT:
Okay. Alright. We'll do that. It will be a Judge Trial on Wednesday the 31st.

While this supplementation of the record controverts Defendant's claim that the record is silent on the issue of a jury trial waiver, we are still faced with the issue of whether this jury trial waiver was valid.

Both the Sixth Amendment to the United States Constitution and La. Const. Art. I, § 17 (A) guarantee an accused the right to a trial by jury in felony and certain misdemeanor cases. Except in capital cases, a defendant may knowingly and intelligently waive his right to trial by jury and elect to be tried by the judge. La. Const. Art. I, § 17 ; La. C.Cr.P. art. 780(A) ; La. C.Cr.P. art. 782(B). "[A] criminal defendant's jury waiver is deemed knowing and intelligent when he understands 'that the choice confronting him is, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge.' " State v. Bazile , 12-2243 (La. 5/7/13), 144 So.3d 719, 733. "Greater proof of knowing and intelligent waiver has been neither constitutionally nor jurisprudentially required." Id.

While the trial judge must determine whether a defendant's jury trial waiver is knowing and intelligent, that determination does not require a " Boykin -like" colloquy with the defendant, and the trial court is not obligated to conduct a personal colloquy inquiring into the defendant's educational background, literacy and work history. State v. Cummings , 10-891 (La. App. 5 Cir. 10/25/11), 79 So.3d 386, 400, writ denied , 11-2607 (La. 4/9/12), 85 So.3d 693. The defendant's prior criminal history may be considered in determining whether the defendant knowingly and intelligently waived his right to a jury trial. State v. Spurlock , 15-1173 (La. 9/25/15), 175 So.3d 955 (per curiam ).

Whether there is "an intelligent, competent, self-protecting waiver of jury trial by an accused" depends on the unique circumstances of each case. Bazile , supra .

Pursuant to La. C.Cr.P. art. 780, a jury trial waiver "shall be by written motion filed in the district court" no later than 45 days prior to the trial date, although the 45-day time requirement may be waived by the State. In this case, there is no written jury trial waiver as required by La. C.Cr.P. art. 780 ; however, the absence of a written jury trial waiver is subject to a harmless error analysis. See State v. Brundy , 16-263 (La. App. 4 Cir. 8/24/16), 198 So.3d 1247, 1265, writ denied , 16-1748 (La. 6/16/17), 220 So.3d 755 ; State v. Bell , 13-1443 (La. App. 3 Cir. 6/4/14), 140 So.3d 830, 832 ; State v. McKnight , 16-310 (La. App. 1 Cir. 9/16/16), 2016 WL 4942398, 2016 La.App. Unpub. LEXIS 335, writ denied , 16-1769 (La. 6/16/17), 219 So.3d 340.

As noted by the Fourth Circuit, the failure to comply with the statutory requirement to make a written jury trial waiver does not deprive a defendant of a constitutional right where the record shows a knowing and intelligent oral waiver of the right to a jury trial. Brundy , 198 So.3d at 1262. In conducting a harmless error analysis where there is no written jury trial waiver as required by La. C.Cr.P. art. 780, the Fourth Circuit has looked to the jurisprudence regarding the validity of oral waivers before the 2013 amendment to La. C.Cr.P. art. 780 that required a written waiver. See State v. Mahogany , 17-377 (La. App. 4 Cir. 7/26/17), 225 So.3d 489, 506. In so doing, it has concluded that where the record shows a defendant knowingly and voluntarily waived his right to a jury, the lack of a written jury trial waiver is harmless. Id.

Prior to the requirement under La. C.Cr.P. art. 780 that a jury trial waiver be in writing, the preferred practice for obtaining a valid waiver of the right to trial by jury was for the trial court to advise the defendant in open court of his right to a jury trial and for the defendant to personally waive the right, even though this practice was not statutorily required. State v. Pierre , 02-2665 (La. 3/28/03), 842 So.2d 321, 322 (per curiam ).

In a case very similar to the present one, State v. Bass , 06-2424 (La. App. 1 Cir. 3/26/08), 978 So.2d 1256, writ denied , 08-842 (La. 10/31/08), 994 So.2d 533, the appellate court found a valid jury trial waiver where the defendant, who was self-represented, advised the court that he wished to waive his right to a jury trial. The appellate court noted that this occurred during a status conference. Near the end of the conference, as the court attempted to assign a trial date, the following colloquy occurred:

[THE DEFENDANT]: Can I ask you one question? You're setting it for a bench trial with the judge?
THE COURT: That's what you wanted; right?
[THE DEFENDANT]: Yes, sir.
THE COURT: That's right.
[THE DEFENDANT]: Thank you, your Honor.

The appellate court concluded that this clearly reflected the defendant waived his right to a jury trial in open court. The court further noted that on the day of the defendant's bench trial, prior to its commencement, the trial court expressly announced, in the defendant's presence, that the right to a jury trial had been waived and the defendant did not object or express any disagreement. Noting that a determination of the knowing and intelligent nature of a jury trial waiver does not require a Boykin -like colloquy, the court found the record showed a valid waiver of the defendant's right to a jury trial.

We find that the record shows Defendant validly waived his right to trial by jury. At a hearing several months prior to his jury trial waiver, the trial court advised Defendant on the record of his right to either a jury or bench trial, noting "[a] trial, if you choose to go Judge Trial, would be me. But if you choose to go Jury would be twelve other prospective jurors who would hear all of this to make a determination." Thereafter, on August 29, 2016, Defendant independently raised the issue and explicitly stated that he wanted a judge trial. After the State waived the 45-day time period under La. C.Cr.P. art. 780, the trial court personally addressed Defendant, informed him of his right to choose a bench trial, and confirmed that it was Defendant's desire to be tried by the judge. Defendant personally and expressly agreed that he wished to proceed to a judge trial.

Additionally, the record reflects that Defendant had prior experience as an accused in a criminal prosecution. Although Defendant pled guilty in one of his prior criminal experiences and did not proceed to trial, he executed a waiver of rights form that advised him of his right to a trial by jury and he was further advised by the court of his right a trial by judge or jury.

Under these circumstances, we find Defendant knowingly and voluntarily waived his right to a jury trial. As such, the absence of a written waiver required by La. C.Cr.P. art. 780 was harmless. See State v. Young , 16-358 (La. App. 4 Cir. 10/5/16), 203 So.3d 351, 359, writ denied , 16-1961 (La. 9/6/17), 224 So.3d 988 (where the court found that the defendant's oral waiver of his right to trial by jury was knowingly and voluntarily made, thus making the absence of a written waiver harmless).

ERRORS PATENT

In accordance with La. C.Cr.P. art. 920, we reviewed the record for errors patent and note one error that requires us to vacate Defendant's sentence on count three, illegal use of weapons. La. R.S. 14:94 provides that the term of imprisonment for illegal use of weapons shall be "with or without hard labor for not more than two years." Although the commitment reflects Defendant's sentence was imposed at hard labor, the sentencing transcript does not reflect the trial court ordered the sentence to be at hard labor or be served with the Department of Corrections. Where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983).

Where the applicable sentencing statute allows discretion, the sentencing court's failure to indicate whether the sentence is to be served with or without hard labor is an impermissible, indeterminate sentence. State v. Joseph , 16-191 (La. App. 5 Cir. 12/7/16), 205 So.3d 1013, writ denied , 17-299 (La. 11/17/17), 230 So.3d 216. Therefore, we are forced to vacate Defendant's sentence on count three for illegal use of weapons and remand the matter to the trial court for the imposition of a determinate sentence in accordance with La. C.Cr.P. art. 879.

DECREE

For these reasons, Defendant's conviction and sentence for his felon in possession of a firearm conviction (count one) are affirmed. His conviction for illegal use of weapons (count three) is also affirmed; however, his sentence on this conviction is vacated and the matter is remanded to the trial court for the imposition of a determinate sentence as discussed above.

CONVICTIONS AFFIRMED; SENTENCE ON COUNT ONE AFFIRMED; SENTENCE ON COUNT THREE VACATED; REMANDED FOR RESENTENCING

MARION F. EDWARDS, JUDGE PRO TEMPORE, J., DISSENTS WITH REASONS

I respectfully dissent from the majority opinion on the issue raised by defendant's second assignment of error relating to whether there was a valid waiver of the right to a jury trial in this matter. La. C.Cr.P. art. 780 clearly requires a written waiver, which does not exist in this record. The majority opinion acknowledges that, but finds the error to be harmless. I disagree. Considering the report and recommendation of the sanity commission, and the fact that this defendant was self-represented, I do not consider the oral waiver to be knowing and voluntary to the extent that it would render the failure to comply with the mandate of La. C.Cr.P. art 780 harmless error. Consequently, I would reverse the convictions and sentences.

      Co-defendant, Devan Smith, was charged in count two of the bill of information with felon in possession of a firearm.

      Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). See State v. Victor , 13-888 (La. App. 5 Cir. 12/23/14), 167 So.3d 118, 125, where this Court explained a defendant may represent himself only if he makes an unequivocal request to represent himself and knowingly and intelligently waives his right to counsel.

      A subsequent search of the car pursuant to a warrant revealed a box of ammunition consistent with what is used in an assault rifle.

      While the videotaped interview of Mr. Carr was played during trial, it was never introduced into evidence and is not a part of the appellate record.

      Although Defendant asserts in his brief that the trial court erred in finding him competent to proceed "to trial," the record clearly shows the trial court simply found Defendant competent to proceed to sentencing. While Defendant's post-conviction motion to appoint a sanity commission requested an assessment of both his current mental state and his mental state as it existed at the time of trial, Dr. Salcedo testified at the competency hearing that he was not offering an opinion regarding Defendant's competency during trial since there was no pre-trial evaluation. He explained that he needed additional information, such as the trial transcript, before making a determination of Defendant's competency during trial. Dr. Salcedo clearly stated that his opinion was limited solely to Defendant's ability to move forward in the proceedings, specifically with sentencing.

      We note the unusual posture of this case in that Defendant's writ application was taken after trial. The only proceeding that occurred after the writ disposition was the actual sentencing hearing, during which no new facts were developed regarding Defendant's competency.

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

      In this case, the State waived the 45-day time period.


text:
    HEALTH EDUCATION AUTHORITY OF LOUISIANA v. APCOA LASALLE PARKING COMPANY, LLC
    NO. 2017-C-1061
    Court of Appeal of Louisiana, Fourth Circuit.
    March 22, 2018
   Harry Rosenberg, Christopher K. Ralston, Lindsay Calhoun, PHELPS DUNBAR LLP, Canal Place/365 Canal Street, Suite 2000, New Orleans, LA 70130-6534, COUNSEL FOR DEFENDANT/APPELLANT COUNSEL FOR DEFENDANT/RELATOR

Henry W. Kinney, Michael L. DeShazo, Aaron M. Maples, KINNEY, ELLINGHAUSEN, RICHARD & DESHAZO, 1250 Poydras Street, Suite 2450, New Orleans, LA 70113-1806, COUNSEL FOR PLAINTIFF/RESPONDENT

Richard Leibowitz, BREAZEALE, SACHSE & WILSON, LLP, 23rd Floor, One American Place, Post Office Box 3197, Baton Rouge, LA 70821-3197, ATTORNEYS FOR AMICUS CURIAE, POLICE JURY ASSOCIATION OF LOUISIANA

Bradley C. Meyers, Shannan Sweeney Rieger, KEAN MILLER LLP, Post Office Box 3513, Baton Rouge, LA 70821-3513, ATTORNEYS FOR AMICUS CURIAE, LOUISIANA MUNICIPAL ASSOCIATION

(Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Rosemary Ledet )

Judge Rosemary Ledet The Relator, APCOA LaSalle Parking Company, LLC ("ALPC"), seeks review of the trial court's November 29, 2017, judgment, denying its peremptory exception of peremption. For the reasons that follow, we grant ALPC's writ application, reverse the trial court's judgment, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of ALPC's leasing and operating a parking garage owned by the Respondent, the Health Education Authority of Louisiana ("HEAL"). The parking garage is located at 300 LaSalle Street in New Orleans, Louisiana. It was originally built in the early 1970s and expanded in the late 1990s (the "Garage").

In December 1998, ALPC and HEAL entered into a lease-operating agreement to expand the Garage and to operate the expanded Garage (the "1998 Lease"). HEAL financed the expansion by adopting a resolution authorizing the issuance of taxable parking revenue bonds for which the 1998 Lease served as security. In September 1998, the bond resolution was published in the Times-Picayune . Section 7 of the bond resolution stated as follow:

This resolution shall be published one time in the Times-Picayune , a daily newspaper published in and of general circulation in the City of New Orleans, Louisiana, and that, as provided by the Act, for a period of thirty (30) days from the date of such publication, any person or persons in interest may contest the legality of this resolution and legality of the Bonds for any cause, after which time no one shall have any cause or right of action to contest the legality of this resolution or of the Bonds authorized hereby for any cause whatsoever. If no suit, action or proceedings are begun contesting the validity of the Bonds within the thirty days herein prescribed, the authority to issue the Bonds and to provide for the payment thereof, the legality thereof and of all of the provisions of this resolution authorizing the issuance of the Bonds shall be conclusively presumed, and no court shall have authority to inquire into such matters....

As no one timely contested the legality of the resolution or the bonds, the bonds were issued. Thereafter, the addition to the Garage was constructed; and ALPC managed the expanded Garage.

In 2013, HEAL filed suit against ALPC in federal district court, seeking a declaratory judgment and damages for ALPC's alleged breaches of the 1998 Lease. Health Educ. Auth. of Louisiana v. APCOA LaSalle Parking Co., LLC , 991 F.Supp.2d 762 (E.D. La. 2013) (" HEAL I "). The federal court dismissed the suit on ALPC's motion for lack of subject matter jurisdiction. Id.

In 2015, HEAL filed a similar suit in Civil District Court for the Parish of Orleans. In 2016, HEAL amended the suit to seek a declaratory judgment that the 1998 Lease was null and void (the "First Amended Petition"). The trial court granted a motion for partial summary judgment in HEAL's favor after finding the 1998 Lease to be an absolute nullity for failure to comply with the Public Lease Law. The trial court certified that judgment as final for purposes of appeal, and ALPC appealed.

During the pendency of the appeal, ALPC filed a peremptory exception of peremption in this court. ALPC argued (as it argues in the instant writ application) that HEAL's claims in the First Amended Petition were perempted pursuant to La. Const. art. VI, § 35 (B) and La. R.S. 17:3056(G). This court reversed the trial court's grant of partial summary judgment in HEAL's favor and remanded for a trial on the exception of peremption. Health Education Authority of Louisiana v. APCOA LaSalle Parking Co., LLC , 17-0259 (La. App. 4 Cir. 9/13/17), --- So.3d ----, 2017 WL 4052073.

Following a hearing, the trial court denied APLC's exception of peremption. The instant writ application followed.

DISCUSSION

The issue presented by this writ application is whether the thirty-day period set forth in La. Const. art. VI, § 35 (B) applies to bar the claims raised by HEAL regarding the validity of the 1998 Lease. Given that the parties do not dispute any of the facts pertaining to the issue of peremption, the issue of whether La. Const. art. VI, § 35 (B) applies presents a question of law, which this court reviews de novo . See Jones v. Sewerage & Water Bd. of New Orleans , 16-0691, pp. 2-3 (La. App. 4 Cir. 3/8/17), 213 So.3d 497, 499 (holding that "[w]here there is no dispute regarding material facts, only the determination of a legal issue, the reviewing court must apply the de novo standard of review").

In denying APLC's exception of peremption, the trial court, agreeing with HEAL, found the thirty-day peremptive period in La. Const. art. VI, § 35 (B) inapplicable for the following three reasons: (i) HEAL is not a "political subdivision" as defined in La. Const. art. VI, § 44 (2) ; (ii) HEAL is not challenging the bond; and (iii) an absolute nullity does not prescribe under La. C.C. art. 2032. We separately address each of these findings.

Political subdivision

By its express terms, La. Const. art. VI, § 35 (B) applies to bonds issued by a political subdivision. Finding that HEAL was not a political subdivision as defined by La. Const. art. VI, § 44 (2), the trial court relied upon the federal district court's determination in HEAL I that HEAL was an "alter ego of the state." 991 F.Supp.2d at 768. ALPC contends that the federal court's determination in HEAL I is not dispositive given it was for the purposes of establishing the lack of subject matter jurisdiction, not for the instant purpose of determining the applicability of La. Const. art. VI, § 35 (B). We agree.

Nor is the Legislature's characterization of HEAL in its enabling legislation, La. R.S. 17:3053 -an "instrumentality of the state of Louisiana"-dispositive. See Slowinski v. England Econ. & Indus. Dev. Dist. , 02-0189, p. 5, n. 3 (La. 10/15/02), 828 So.2d 520, 524 (noting that the Legislature's characterization of the public body as "a 'political subdivision of the state' is not determinative of whether it is an 'instrumentality of the state.' ").

Addressing the meaning of the term "political subdivision of the state" in the Louisiana Constitution, one commentator has observed as follows:

The reference to a political subdivision of the state is essentially a straightforward reference to local governments. As defined in Article VI (Local Government), the narrower term "[l]ocal governmental subdivision" means a parish or a municipality, but "political subdivision" is a broader term including a parish or municipality, but also "any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions." Virtually all special districts established by cities and municipalities are thus covered. The definition can also encompass, surprisingly, some special districts with statewide application. The supreme court allowed the legislature to establish under Article VI, Section 19 the statewide Recovery District with the power to impose a statewide sales tax and use the proceeds to pay off bonds that were sold to finance a state deficit. In Board of Directors of the Louisiana Recovery District v. All Taxpayers , [ 529 So.2d 384 (La. 1988) ] the court stated that such a district "is a valid political subdivision and that it may be granted the power to tax." [ Id. at 388.] A power generating authority providing services in many parts of the state was found to be a political subdivision and its property was not subject to ad valorem taxation. [ Slay v. La. Energy & Power Authority , 473 So.2d 51 (La. 1985).]

Lee Hargrave, Limits on Borrowing and Donations in the Louisiana Constitution of 1975 , 62 LA. L. REV. 137, 177 (2001).

Applying these principles here, we find HEAL is a unit of local government authorized "to perform governmental functions" and thus a political subdivision under La. Const. art. VI, § 44. Hence, HEAL falls within the broad definition of a political subdivision under the Louisiana Constitution.

Challenge to the bond

The second issue is whether HEAL is challenging the bond. The answer to this question is simple. The scope of La. Const. art. VI, § 35 (B) is broader than a challenge to the bond; it covers challenges regarding "the bonds, the security for the bonds, and any provision of the bond resolution." Denham Springs Econ. Dev. Dist. v. All Taxpayers, Prop. Owners & Citizens of Denham Springs Econ. Dev. Dist. , 05-2274, p. 32 (La. 10/17/06), 945 So.2d 665, 686. HEAL, as APLC points out, is challenging an agreement-the 1998 Lease-that is identified as security for the bond in the bond resolution. HEAL's claims thus fall squarely within the scope of La. Const. art. VI, § 35 (B).

Absolute nullity

HEAL is seeking a declaratory judgment that the 1998 Lease is an absolute nullity. The trial court, agreeing with HEAL, found that an absolute nullity cannot prescribe under La. C.C. art. 2032. We find this argument unpersuasive. The Louisiana Constitution sets forth a thirty-day peremptive period. After the thirty-day period has expired, "the right to contest is extinguished or perempted, and it is conclusively presumed all legal requirements for the issuance of the bonds have been satisfied and that the bonds, the legal documents providing for the bonds, and all security for the bonds are legal." Denham Springs , 05-2274 at p. 32, 945 So.2d at 686. Thus, "no court has authority to consider any challenge after the thirty-day peremptive period." Id. Accordingly, we find the thirty-day peremptive period in La. Const. art. VI, § 35 (B) applies to all claims, including absolute nullity claims.

Accordingly, we find the trial court's judgment overruling the peremptory exception of peremption is legally erroneous and grant the exception. Nonetheless, because the record before us on APLC's writ application is unclear as to whether all of HEAL's claims in the First Amended Petition are challenges to the validity of the 1998 Lease and thus perempted, we remand for consideration of all remaining claims.

DECREE

For the foregoing reasons, we grant the Relator's writ application. We reverse the trial court's November 29, 2017, judgment; grant the Relator's peremptory exception of peremption; and remand for consideration of all remaining claims.

WRIT GRANTED; JUDGMENT REVERSED; AND REMANDED

      HEAL is a public body that was created by the Legislature in 1968. See La. R.S.17:3051 -17:3060.2 (recently amended by Acts 2016, No. 577, § 1, eff. Aug. 1, 2016). The four purposes for which HEAL was created are enumerated in its enabling legislation as follows:
      • Assisting "public and private institutions and organizations that are dedicated to exemplary patient care, health science education and biomedical research, as well as organizations providing facilities ... or services deemed appropriate by the authority";
      • Aiding "in the development of health care and education programs by the primary and participating institutions and to assist in the coordination of planning and in implementing the attainment of the objectives of such institutions";
      • Acquiring or assisting in the acquisition of land and "the planning, acquisition, construction, reconstruction, rehabilitation, improvement and development of facilities in the ...primary service area for the use of the primary and participating institutions, and the development, acquisition, construction, reconstruction, rehabilitation, improvement and operation of jointly usable facilities for such institutions"; and
      • Assisting in or providing for "the financing of any of the above and foregoing activities or facilities in the manner hereinafter authorized."
      La. R.S. 17:3051 (before and after the 2016 amendment).

      In March 1973, HEAL entered into a lease-operating Agreement with ITT Consumer Services Corporation ("ITT") to construct and to operate the parking garage (the "1973 Lease"). In 1976, ITT assigned all of its rights, title, and interest in the 1973 Lease to APCOA/Standard Parking, Inc. ("APCOA"). In December 1998, APCOA assigned all of its rights, title, and interest in the 1973 Lease to ALPC.

      Virtually identical language is contained in La. Const. art. VI, § 35 (B) regarding the time limit for contesting any ordinance or resolution authorizing the issuance of bonds by a political subdivision of the state.

      In the First Amended Petition, HEAL indicated that it "desire[d] to replace the original Petition for Declaratory Judgment and Damages in its entirety with this First Amended Petition."

      Although the 1973 Lease was publically bid and awarded to ITT as the lowest bidder, the parties amended the 1973 Lease on December 31, 1997, and July 1, 1998, without public bid to allow the parties to finalize the Garage expansion plans and to extend the term of the lease, on both occasions. Likewise, the parties, in entering into the 1998 Lease that provided for an expiration date of December 31, 2030, failed to follow the advertisement and public bid requirements. The 1998 Lease also included a provision that transferred ownership of the Garage addition to ALPC for the duration of the 1998 Lease, which HEAL argued was a violation of La. Const. art. VII, § 14.

      La. Const., art. VI, § 35 (B) provides as follows:
      Every ordinance or resolution authorizing the issuance of bonds or other debt obligation by a political subdivision shall be published at least once in the official journal of the political subdivision or, if there is none, in a newspaper having general circulation therein. For thirty days after the date of publication, any person in interest may contest the legality of the ordinance or resolution and of any provision therein made for the security and payment of the bonds. After that time, no one shall have any cause of action to test the regularity, formality, legality, or effectiveness of the ordinance or resolution, and provisions thereof for any cause whatever. Thereafter, it shall be conclusively presumed that every legal requirement for the issuance of the bonds or other debt obligation, including all things pertaining to the election, if any, at which the bonds or other debt obligation were authorized, has been complied with. No court shall have authority to inquire into any of these matters after the thirty days.

      La. R.S. 17:3056(G) provides as follows:
      For a period of thirty days from the date of publication of the resolution authorizing the issuance of any bonds hereunder, which publication shall be made in a newspaper of general circulation in the city of New Orleans, Louisiana, or in the city of Baton Rouge, Louisiana, any person or persons in interest shall have the right to contest the legality of the resolution and the legality of the bond issue for any cause, after which time no one shall have any cause or right of action to contest the legality of said resolution or of the bonds authorized thereby for any cause whatsoever. If no suit, action or proceedings are begun contesting the validity of the bonds within the thirty days herein prescribed, the authority to issue the bonds and to provide for the payment thereof, the legality thereof and of all of the provisions of the resolution authorizing the issuance of the bonds shall be conclusively presumed, and no court shall have authority to inquire into such matters. Such bonds shall have all the qualities of negotiable instruments under the law merchant and the Negotiable Instruments Law of the State of Louisiana.

      This court granted requests by the Louisiana Municipal Association and the Police Jury Association of Louisiana to file amicus curiae briefs in support of Relator's position. The gist of their contentions is that the trial court's ruling jeopardizes the marketability of municipal bonds.

      APLC also contends that the thirty-day preemptive period in La. R.S. 17:3056(G) applies here. HEAL counters that La. R.S. 17:3056(G) does not apply because the peremptive period in the statute does not apply to challenges of security pledged for repayment of the bonds, as the statute does not use "security" in its language. Given our finding that La. Const. art. VI, § 35 (B) applies here, we pretermit addressing the issue of whether the statutory provision applies.

      La. Const. art. VI, § 44 (2) defines the term "political subdivision" as "a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions."

      La. C.C. art. 2032 provides that an "[a]ction for annulment of an absolutely null contract does not prescribe."

      Because the issue of whether the peremptive period of La. Const. art. VI, § 35 (B) applies to absolute nullities has not been addressed by this court, HEAL submits that the issue is analogous to Louisiana jurisprudence holding that if a tax sale is an absolute nullity due to lack of proper notice, the peremptive period of La. Const. art. VII, § 25 (C) cannot be relied upon to validate the tax sale. HEAL's reliance on tax sale jurisprudence is misplaced. In the tax sale cases, the lack of constitutional due process is the basis for the court's finding that the preemptive period cannot operate in contravention of federal due process requirements. See Lacoste Builders, L.C. v. Strain , 03-0511 (E.D. La. 10/29/03) (unpub. ), 2003 WL 22466233 at *5 (finding tax sale an absolute nullity "[b]ecuse there is no evidence of any attempt to notify Lacoste Builders through mail or personal service, Lacoste Builders did not receive the due process to which they were entitled under the Fourteenth Amendment and Mennonite "). Here, in contrast, there is no due process violation at issue. See Denham Springs , 05-2274 at pp. 28-29, 945 So.2d at 684 (noting that "[b]ecause no constitutionally protected property interest is involved in this case, the State is free to limit and restrict the right to assert any challenge without violating due process requirements" and that "[t]he notification procedure set forth in our constitution and statutory law was appropriately followed by the publication of the Bonds Resolution in the Livingston Parish").

      See Babin v. Parish of West Feliciana , 15-0489 (La. App. 1 Cir. 2/17/16), 189 So.3d 446 ; Town of Sterlington v. Ouachita Parish Police Jury , 49,406 (La. App. 2 Cir. 10/1/14), 150 So.3d 944 ; Sabine River Authority v. All Taxpayers , 11-1139 (La. App. 3 Cir. 10/5/11), 74 So.3d 278 ; Jones v. Livingston Parish Law Enforcement Dist., 07-0628 (La. App. 1 Cir. 9/14/07), 970 So.2d 996