author: EDWARDS, J.

text:
    Amanda CONNELLY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2226
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 16, 2018
    William R. Ponall, of Ponall Law, Maitland, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   EDWARDS, J.

Amanda Connelly appeals the summary denial of her Florida Rule of Criminal Procedure 3.850 Motion for Postconviction Relief in which she claimed her counsel was ineffective because he failed to properly object and move for mistrial in response to certain comments the State made. Connelly asserts in Claim A that some of the State's comments in cross-examination and closing argument were an attempt to shift the burden of proof, some were statements of the prosecutor's personal opinions, and others were misstatements of the law. Although the postconviction court found that the State's questions and comments were permissible because they properly challenged Appellant's testimony and her counsel's arguments, the documents attached to the order of summary denial do not conclusively refute her claim. Therefore, we reverse and remand for further proceedings regarding Claim A.

Appellant was tried and convicted of first-degree murder with a firearm and robbery with a firearm. Melissa Holmes, referred to as Appellant's aunt, testified that Appellant told her details of the murder and robbery. Although Appellant apparently testified that Holmes was motivated to lie about Appellant's involvement in the crimes, the transcript pages containing that testimony were not attached to the order being appealed. The attached pages did contain that portion of her testimony on cross-examination, when the prosecutor asked Appellant for her explanation of why Holmes would falsely accuse her of murder.

In its initial closing argument, the State repeatedly argued that Appellant failed to explain why Holmes would have given false testimony, and added the personal comment that the State's attorney could not think of any explanation either. In its rebuttal argument, the State then commented that it had expected Appellant's counsel to offer a reason why Holmes would falsely accuse Appellant, but Appellant's counsel did not offer any such reason. Appellant contends that this argument amounted to improperly shifting the burden of proof from the State to Appellant.

Finally, the State also commented on what the jury would have to believe in order to find Appellant "innocent," including such statements as, in order to find Appellant innocent, the jury would have to believe that Appellant was the unluckiest person ever and that Holmes was a lying monster. Appellant contends the State's argument was a misstatement of the law and improper burden shifting. According to the postconviction court, although the State repeatedly used the phrase "find her innocent," the State did argue that it carried its burden of proving Appellant guilty beyond a reasonable doubt. However, the attached transcript pages do not contain that portion of closing argument.

Appellant's trial counsel objected twice to the State's comments during the initial closing, and the trial court overruled the objections. Defense counsel did not object to the complained-of comments during the rebuttal portion of the State's closing. While the postconviction court may be correct that further objections during the initial closing would have been futile, that reasoning would not necessarily apply to the State's comments in the rebuttal phase because the comments were slightly different and removed in time.

The record attached to the postconviction court's order does not provide sufficient context for this Court to analyze and evaluate whether the postconviction court's conclusions are correct. We note that the documents attached do not contain much of Appellant's direct testimony regarding Holmes, the other comments to which the State may have been responding, or some of the State's comments relied upon by the postconviction court. Thus, we reverse the order of summary denial and remand this matter for the postconviction court either to attach records that conclusively refute Appellant's Claim A or to conduct an evidentiary hearing on Claim A.

REVERSED AND REMANDED.

PALMER and TORPY, JJ., concur.

      Connelly, through counsel, asserted an additional claim of ineffective assistance of counsel below, but has affirmatively chosen to only seek review of the court's ruling on Claim A.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Antonio GIBBONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5747
    District Court of Appeal of Florida, First District.
    March 22, 2018
    Candice K. Brower, Regional Counsel, and Melissa J. Ford, Assistant Conflict Counsel, for the Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Antonio Gibbons, contends the trial court erred in denying his motion for judgment of acquittal as to the count of possession of a firearm by a convicted felon. He has not challenged his remaining convictions. Appellant asserts the State failed, due to insufficient evidence of his prior convictions, to satisfy its burden of presenting a prima facie case on the felon-in-possession count. Upon consideration of the State's confession of error, we reverse and remand. The trial court is instructed to vacate the judgment and sentence on the conviction for possession of a firearm by a convicted felon, and to resentence consistent with a new scoresheet.

REVERSED , and REMANDED with instructions.

Jay, Winsor, and M.K. Thomas, JJ., concur.


author: PER CURIAM.

text:
    Judith Ann HAGNER, Appellant, v. Susan E. DIETRICH, Linda Brown, Elizabeth Ramon and Rita Settle, Appellees.
    Case No. 5D18-0317
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 20, 2018
    Judith Ann Hagner, Orlando, pro se.
    Richard S. Wright, of The Wright Firm, P.A., Maitland, for Appellees.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a).

EVANDER, LAMBERT, and EDWARDS, J.J., concur.


text:
    PREMIER MOTORCAR GALLERY, INC., Petitioner, v. Onazina WASHINGTON, Respondent.
    No. 1D17-5299
    District Court of Appeal of Florida, First District.
    March 29, 2018
    David P. Healy of Dudley, Sellers, Healy & Heath, PL, Tallahassee, for Petitioner.
    David H. Abrams, Tallahassee, for Respondent.
   Per Curiam.

Premier Motorcar Gallery, Inc., filed a petition for prohibition, asking us to prohibit the circuit court from exercising jurisdiction in the underlying matter. Later, while this original action remained pending, Premier Motorcar removed the underlying action to federal court, thus depriving the trial court of jurisdiction to proceed. See Maseda v. Honda Motor Co. , 861 F.2d 1248, 1254-55 (11th Cir.1988) ("[A]fter removal, the jurisdiction of the state court absolutely ceases and the state court has a duty not to proceed any further in the case."); see also 28 U.S.C. § 1446(d) ("[T]he State court shall proceed no further unless and until the case is remanded.").

Premier Motorcar now asks us to stay or abate this proceeding, waiting and starting again "only in the event the action is later remanded" back to state court. But because Premier Motorcar acknowledges that its removal to federal court has already achieved what it asked us to do-deprive the circuit court of jurisdiction to proceed-we dismiss the petition as moot. If the case later returns to state court, and if the trial court later acts in excess of its jurisdiction, Premier Motorcar can later file another prohibition petition. See Scott v. Francati , 214 So.3d 742, 749 (Fla. 1st DCA 2017) (prohibition is appropriate when circuit court attempts to act without jurisdiction).

DISMISSED .

Wolf, Osterhaus, and Winsor, JJ., concur.


text:
    Tyrone PASTURES, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0011
    District Court of Appeal of Florida, First District.
    March 27, 2018
    Regina L. Wright of The Regina Wright Law Firm, PA, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is denied.

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.


text:
    Ralph Carol RHODABACK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0390
    District Court of Appeal of Florida, First District.
    March 22, 2018
    Ralph Carol Rhodaback, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

Roberts, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Louis KLAPPER, Appellant, v. Pam STEWART, as Commissioner of Education, Appellee.
    No. 1D17-2426
    District Court of Appeal of Florida, First District.
    March 29, 2018
    Melissa C. Mihok of CPLS, P.A., Orlando, for Appellant.
    Ronnie Herman Weaver, Ocala; Matthew H. Mears, General Counsel, and Bonnie Wilmot, Deputy General Counsel, Florida Department of Education, Tallahassee, for Appellee.
   Per Curiam.

Pursuant to Appellee's Unopposed Motion for the Court to Set Aside Final Order and Remand, which the Court treats as a confession of error, the Final Order is reversed, and the cause is remanded to the lower tribunal for further proceedings.

Wolf, Lewis, and Jay, JJ., concur.


author: Hughes, J., would deny the writ.

text:
    Tonette PORTER v. The LOUISIANA SELF-INSURANCE FUND, Louisiana Office of Risk Management, LSU Health Science Institute of Professional Education d/b/a LSU Medical Center, and Derek Picot
    2018-CC-220
    Supreme Court of Louisiana.
    March 23, 2018
    ON SUPERVISORY WRITS TO THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
    Granted. The judgment of the district court striking Dr. Terrence Welch as an expert witness is reversed. See La. Code Civ. P. art. 1425 (C).
   Hughes, J., would deny the writ.


author: HUGHES, J., would grant.

text:
    STATE v. Kyanta Deon MAGEE
    No. 2017-KK-2038
    Supreme Court of Louisiana.
    March 23, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT, PARISH OF CADDO
    Writ denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant and assigns reasons.

GENOVESE, J., would grant and remand for an evidentiary hearing in accordance with Birchfield v. North Dakota, 579 U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d. 560 (2016).


author: PER CURIAM

text:
    IN RE: Louise Anne KLAILA
    NO. 2018-B-0093
    Supreme Court of Louisiana.
    March 23, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Louise Anne Klaila, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

FORMAL CHARGES

The ODC filed two sets of formal charges against respondent under disciplinary board docket numbers 15-DB-030 and 16-DB-089. Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committees written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration in either matter. The formal charges were considered by separate hearing committees, and then consolidated by order of the disciplinary board in June 2017. The board filed in this court a single recommendation of discipline encompassing both sets of formal charges.

15-DB-030

In January 2014, the ODC received notice from Chase Bank that a check in the amount of $225 drawn on respondent's client trust account had been returned unpaid for insufficient funds in the account. The ODC then sent respondent a letter requesting an explanation for the returned check as well as copies of six months of bank records for the account; however, the correspondence was returned to the ODC unclaimed. As a result, a formal complaint was opened.

Notification of the formal complaint was mailed to respondent in March 2014, again requesting the previously sought information. By letter dated April 7, 2014, respondent provided the requested financial records. She also provided a formal response to the complaint wherein she acknowledged that she deposited personal funds into her client trust account and left earned fees in the account to pay operating expenses.

In September 2014, the ODC requested that respondent explain certain online transfers from her client trust account into a Chase Bank checking account. The ODC requested that this information be furnished within fifteen calendar days of the date of the correspondence. Respondent failed to respond to the request for supplemental information, necessitating the issuance of a subpoena on October 29, 2014. On November 4, 2014, respondent submitted the supplemental information.

In December 2014, the ODC conducted an audit of respondent's client trust account. The audit revealed that respondent misused her trust account and engaged in commingling and conversion of client funds. Respondent deposited money into her trust account to cover office-related expenses on November 5, 2013 and on December 11, 2013. Respondent paid her office rent twice during the audit period, once on November 13, 2013 and again on December 27, 2013. Both checks were written in the amount of $225.

On November 7, 2013, respondent made a $200 deposit into her trust account for the benefit of Sabrina Walker. During the audit period, the balance of the account fell below the amount held on Ms. Walker's behalf. On December 26, 2013, respondent electronically transferred $100 to her operating account to cover expenses; however, only $35.75 in attorney funds was available at this time. On January 7, 2014, respondent made a $1,000 deposit into her trust account for the benefit of Lucinda Weed. Electronic transfers for attorney's fees were subsequently processed totaling $800, leaving $200 held in the account on Ms. Weed's behalf. As of February 28, 2014, the balance of respondent's client trust account was $238.32, which is below the total of $400 respondent was holding on behalf of Ms. Walker and Ms. Weed.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.15 (safekeeping property of clients or third persons) and 8.1(c) (failure to cooperate with the ODC in its investigation).

Hearing Committee Report

After considering the ODC's deemed admitted submission in 15-DB-030, the hearing committee determined that the factual allegations in the formal charges were deemed admitted and proven by clear and convincing evidence. Specifically, the committee found that respondent improperly used her trust account to pay law office operating expenses, including rent and utilities, which constitutes a commingling of her personal funds with her clients' funds. In addition, on at least one occasion respondent transferred $100 from her trust account to her operating account when only $35.75 in attorney funds was available in the account. This constitutes a conversion of her clients' funds.

With regard to the charge that respondent failed to cooperate with the ODC, the committee acknowledged that on both occasions when respondent's replies to the ODC's requests for information were delayed, she offered an explanation for the delay, apologized, and denied any intention not to cooperate with the ODC. The committee stated that these explanations may be persuasive, but ultimately they are of no avail because the formal charges alleging a failure to cooperate were deemed admitted and proven by clear and convincing evidence.

Based on these facts, the committee determined respondent violated Rules 1.15 and 8.1(c) of the Rules of Professional Conduct as alleged in the formal charges.

The committee determined that respondent's violation of Rule 1.15 was negligent. There was no actual harm caused to her clients or third parties, however, the potential for harm was present. The committee determined that the applicable baseline sanction is suspension.

The committee found no aggravating factors. In mitigation, the committee found the following: absence of a prior disciplinary record and absence of a dishonest or selfish motive. The committee also recognized in mitigation that (1) although respondent has been a lawyer for over thirty years, she worked in the public sector for a majority of her legal career and did not operate or manage a client trust account until two years before the incident that triggered these proceedings; (2) the returned check that caused the ODC to open an investigation was inadvertent and immediate steps were taken to correct it; and (3) respondent has taken measures to avoid commingling personal funds with client funds.

After also considering this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for one year, with all but one month deferred. The committee also recommended that respondent be required to attend an additional continuing legal education course in managing client trust accounts. Finally, the committee recommended respondent be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the hearing committee's report.

16-DB-089

Sherry Rigaud retained respondent to represent her in a child custody matter that was remanded to the Orleans Parish Civil District Court from the Fourth Circuit Court of Appeal. Ms. Rigaud paid respondent a $1,000 retainer fee in connection with the representation. On July 16, 2014, respondent filed a motion for extension of time to file a Motion to Amend or Set Aside a Consent Judgment. Respondent was granted seven days to file the amended pleading. On July 23, 2014, respondent timely filed the Amended Motion to Amend or Set Aside a Consent Judgment, but she did not attach an order to the Motion. Respondent took no further action to cure the deficiency of the filing or to move the matter forward, and she failed to respond to Ms. Rigaud's repeated requests for information concerning the status of her case. Respondent also failed to refund any part of the fee she received from Ms. Rigaud.

In September 2015, Ms. Rigaud filed a complaint against respondent with the ODC. Respondent failed to reply to the complaint.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (fee arrangements), 3.2 (failure to expedite litigation), 8.1(c), and 8.4(a) (violation of the Rules of Professional Conduct).

Hearing Committee Report

After considering the ODC's deemed admitted submission in 16-DB-089, the hearing committee determined that the factual allegations in the formal charges were deemed admitted and proven by clear and convincing evidence, and that respondent violated the Rules of Professional Conduct as charged.

The committee found that respondent knowingly violated duties owed to her client. She charged an excessive fee for the legal work done, then failed to return any part of the fee, despite Ms. Rigaud's request for same. The only pleadings filed by respondent on Ms. Rigaud's behalf were a motion for extension of time and a motion to amend or set aside a consent judgment. However, respondent failed to file an order with the motion to amend. The case involved back child support issues, and the matter had already been heard by the trial court and reviewed by the Fourth Circuit Court of Appeal. Thus, the delays caused by respondent's inaction only further delayed resolution of the case.

As to the amount of harm suffered by Ms. Rigaud, the committee noted that the record does not reflect whether the child support case has been resolved. Thus, the committee could not make a finding as to the extent of the harm caused by respondent's misconduct. However, there is no doubt that harm existed as the case was delayed to a significant degree. Additionally, Ms. Rigaud's unearned fee was not returned to her. The committee determined that the applicable baseline sanction in this matter is suspension.

The committee found no mitigating factors present. The committee found that respondent has a prior disciplinary record, based upon the pending formal charges in 15-DB-030.

Under these circumstances, the committee recommended respondent be suspended from the practice of law for one year, with all but three months deferred, followed by a six-month period of supervised probation. The committee also recommended that within one year, respondent should be required to attend fifteen hours of additional continuing legal education courses in the areas of ethics, law office management, and trust accounts. Finally, the committee recommended respondent be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the hearing committee's report.

Disciplinary Board Recommendation

15-DB-030 and 16-DB-089

After review, the disciplinary board determined that the factual allegations in the formal charges were deemed admitted and proven. The board also determined that the legal conclusions of the committees are supported by the factual allegations asserted in the formal charges and/or by the evidence submitted in support of the factual allegations. Based on these findings, the board concluded that the committees correctly applied the Rules of Professional Conduct.

The board determined that in commingling and converting client funds, respondent negligently violated a duty owed to clients. While her conversion did not cause any actual harm, the potential for harm existed. By neglecting her client's legal matter, failing to communicate with her client, failing to return unearned fees, and failing to advance her client's legal matter, respondent knowingly violated duties owed to her clients. In both sets of formal charges, respondent also violated a duty owed to the profession by knowingly, if not intentionally, failing to timely respond and cooperate with the ODC in its investigations. This conduct caused the ODC to expend additional resources in the investigation of the matters and in the bringing of the formal charges. The board agreed with the committees that the baseline sanction is suspension.

The board found no mitigating factors are present. In aggravation, the board found the following factors: a prior disciplinary record, a pattern of misconduct, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, and indifference to making restitution (as to 16-DB-089).

After further considering this court's prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day. The board further recommended respondent be required to provide an accounting and make restitution of any unearned fees to Ms. Rigaud. Finally, the board recommended she be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted.

However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan , 01-3058 (La. 1/10/03), 838 So.2d 715.

The evidence in the record of this deemed admitted matter supports a finding that respondent commingled and converted client funds, neglected her client's legal matter, failed to communicate with her client, and failed to return an unearned fee. She also failed to cooperate with the ODC in the investigation of two disciplinary complaints against her. As such, she has violated Rules 1.3, 1.4, 1.5, 3.2, 1.15, 8.1(c), and 8.4(a) of the Rules of Professional Conduct.

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

Respondent acted negligently in commingling and converting client funds. She acted knowingly in neglecting Ms. Rigaud's legal matter, failing to communicate with Ms. Rigaud, and failing to return the unearned portion of the fee Ms. Rigaud paid. She acted knowingly, if not intentionally, in failing to cooperate with the ODC in its investigations. This conduct violated duties owed to respondent's clients and the profession. Respondent caused actual harm to Ms.

Rigaud by delaying the resolution of her legal matter and by not promptly refunding her legal fee. Respondent caused potential harm by mishandling her client trust account. Under the ABA's Standards for Imposing Lawyer Sanctions , the applicable baseline sanction is suspension. The aggravating factors found by the disciplinary board are supported by the record, and we agree that the record does not support any mitigating factors.

Under these circumstances, we agree with the board that a one year and one day suspension is appropriate. This sanction will require respondent to apply for reinstatement and demonstrate to our satisfaction that she has remedied the problems that caused her misconduct. Accordingly, we will adopt the disciplinary board's recommendation and suspend respondent from the practice of law for one year and one day. We will also order respondent to provide an accounting and make restitution of any unearned fees to Ms. Rigaud.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that Louise A. Klaila, Louisiana Bar Roll number 31408, be and she hereby is suspended from the practice of law for one year and one day. It is further ordered that respondent shall provide an accounting and a refund of unearned fees to Sherry Rigaud. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

CRICHTON, J., additionally concurs and assigns reasons.

CRICHTON, J., additionally concurs and assigns reasons:

I agree with the Court's imposition of a one year and one day suspension for respondent in this matter. However, I write separately to point out the troublesome manner in which respondent has blatantly ignored the serious and proven allegations against her. Despite numerous attempts by the Office of Disciplinary Counsel to reach respondent during the course of its investigation, respondent maintained her indifference and consistent refusal to cooperate. In my view, respondent's disdain for the disciplinary process, her negligence in maintaining her client trust account, and her disregard for the Rules of Professional Conduct absolutely warrant the suspension imposed.

      Respondent was admitted to the practice of law in Louisiana in 2007. On September 11, 2017, she was declared ineligible to practice law in this state for failing to pay her bar dues and the disciplinary assessment. Respondent is also admitted to the bars of New Mexico (admitted 1985) and Maine (admitted 1990).

      The public member concurred in part and dissented in part. She largely agreed with the majority's report, but felt that the additional CLE should have to be completed within one year of the final judgment in this matter or else "the Respondent would have no incentive to complete the training in a timely manner."

      See Board of Overseers of the Bar v. Klaila , No. GCF 10-129 (Maine 5/24/11). After being administratively suspended in 2009 for CLE deficiencies and failure to pay required fees, a complaint was brought against respondent in Maine. Respondent never filed an answer. The Grievance Commission issued a public reprimand as a result of the misconduct.


text:
    IN RE: Gregory SWAFFORD
    NO. 2017-B-2154
    Supreme Court of Louisiana.
    March 23, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Gregory Swafford, an attorney licensed to practice law in Louisiana, but currently ineligible to practice.

UNDERLYING FACTS

Marie Smith retained respondent to complete a succession. According to Ms. Smith, respondent's fee for handling the matter was initially $5,000. Respondent then expressed an interest in purchasing part of the succession property, specifically a house located on Farragut Street in New Orleans. Thereafter, Ms. Smith and respondent agreed on a purchase price of $30,000 for the Farragut Street property, minus the $5,000 fee. Respondent failed to reduce the terms of the agreement to writing.

In July 2014, Ms. Smith filed a complaint against respondent with the ODC. In his response to the complaint, respondent claimed that he never represented Ms. Smith, nor did he purport to represent her. Respondent claimed that he was interested in purchasing the Farragut Street property in the event that title was cleared and all necessary parties were available and agreeable, but that another attorney would handle the succession work.

In contrast to these claims, Ms. Smith submitted copies of e-mail exchanges between herself and respondent that occurred in March 2014. Ms. Smith forwarded to respondent information pertaining to the heirs and decedents, including their contact information. Respondent instructed Ms. Smith to get death certificates for all of the decedents so that he could "start drafting the petitions."

On March 20, 2014, ten death certificates were hand-delivered to respondent. In a text to Ms. Smith dated June 6, 2014, respondent advised that he would have the succession documents prepared by June 13, 2014. However, respondent failed to provide proof of any action taken regarding the matter. Ultimately, Ms. Smith had another attorney complete the successions and sold the Farragut Street property in 2015.

DISCIPLINARY PROCEEDINGS

In September 2016, the ODC filed formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.5 (the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation), 1.16(d) (obligations upon termination of the representation), and 8.4(a) (violation of the Rules of Professional Conduct).

Respondent answered the formal charges and denied any misconduct. The matter then proceeded to a formal hearing before the hearing committee.

Ms. Smith testified at the hearing that respondent presented himself as being able to "rehab, purchase, and complete" the successions for $30,000. She testified that respondent indicated that he would purchase her family's interest in the Farragut

Street property for $30,000, charge her $5,000 for legal fees to perform the successions to clear title, and provide the remaining $25,000 to the family for disbursement. Pursuant to his instructions, which are contained in e-mail communications with her, Ms. Smith acquired death certificates and delivered them to respondent, believing that he would file the successions necessary to transfer title. Based upon his representations, she believed respondent was providing legal services to her. She did not recall him mentioning that a third party would handle the successions to clear title. Ms. Smith testified that she customarily followed up her phone communications with respondent in an e-mail reflecting the conversation. There was no written purchase agreement regarding the Farragut Street property or any legal representation by respondent as a succession attorney, but there were e-mails between Ms. Smith and respondent where document collection and pleading drafting were discussed. Ms. Smith suffered a lot of duress, fearing that respondent would use the information she provided to take her property.

Respondent testified that he made the $30,000 offer for the Farragut Street property and would allocate $5,000 for the succession work. Respondent stated that the sale was conditioned upon whether the title could be cleared since there were several successions to be opened and relatives to be located. Respondent testified that attorney John Davidson, the owner of Alliance Title, was going to do the succession work. Respondent thought Ms. Smith understood that he would not be doing the succession work. When questioned about his drafting of pleadings and his requesting of documents in e-mail communications with Ms. Smith, respondent testified that he was merely the "facilitator [in] having the petitions drafted" by Mr. Davidson's office. Respondent admitted that he should have communicated better. There was no written agreement between respondent and Ms. Smith for purchase of the property or for legal services. Respondent testified that although he had performed work in succession matters, it was his policy not to personally be the succession attorney on any deal where he is the purchaser.

Hearing Committee Report

After considering the testimony presented at the hearing, as well as the other evidence in the record, the hearing committee made the following factual findings:

Respondent negligently created an attorney-client relationship with Ms. Smith by offering legal services to clear title to the Farragut Street property in association with motives to purchase the same. He negligently failed to act with reasonable diligence and promptness in representing Ms. Smith and negligently failed to take steps reasonably practicable to protect her interests by failing to give her reasonable notice of the termination of his representation.

Despite contradictory testimony on these issues, Ms. Smith had a reasonable belief that she engaged respondent as an attorney to complete the necessary successions to sell the Farragut Street property to him. Respondent directed Ms. Smith to gather and deliver papers to prepare and file succession pleadings. His representations indicate that he intended to perform attorney services in this matter. Upon concluding that he could not handle or "facilitate" the completion of the successions, respondent negligently failed to inform Ms. Smith of his termination of the representation. He should have informed Ms. Smith that he would be unable to complete the successions and go through with the conditional sale of the property. As respondent admitted, his actions fostered and facilitated a great misunderstanding and he should have been clearer.

Based on its factual findings, the committee determined respondent violated Rules 1.3, 1.16(d), and 8.4(a) of the Rules of Professional Conduct. Ms. Smith had a reasonable expectation and belief that respondent would perform the legal work necessary to clear title to the property. Although respondent contended that he acted merely as a real estate investor, his representations, instructions, and communications implied an intention to act in a lawyer capacity.

The committee did not find a violation of Rules 1.4 or 1.5. The interaction between respondent and Ms. Smith was of relatively short duration (five months). During this time, there were reasonably frequent communications between them except as to respondent's terminating the representation. There was no confusion regarding the scope of the representation or rate of the fee, and no written fee agreement was required.

The committee determined that respondent negligently violated a duty owed to his client. Although he caused no appreciable harm to her, his misconduct caused the potential for harm. Ms. Smith ultimately retained an attorney who completed the successions after a couple of months and sold the Farragut Street property. Respondent collected no funds from Ms. Smith and harmed no third party. After reviewing the ABA's Standards for Imposing Lawyer Sanctions , the committee determined that the applicable baseline sanction is suspension.

In aggravation, the committee found substantial experience in the practice of law (admitted 1993). In mitigation, the committee found the absence of a prior disciplinary record, absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and character or reputation.

Based upon these findings, the committee recommended that respondent be suspended from the practice of law for thirty days, fully deferred. The committee further recommended that respondent be required to attend the Louisiana State Bar Association's ("LSBA") Ethics School.

Neither respondent nor the ODC filed an objection to the hearing committee's report.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee's factual findings are supported by the record and are not manifestly erroneous. Accordingly, the board adopted the committee's factual findings and legal conclusions.

The board determined that respondent violated a duty to his client. His conduct was more knowing than negligent and caused no long-term harm, although the potential for harm existed. Ms. Smith was able to have her legal work concluded by another attorney, but she was clearly frustrated by her inability to obtain information from respondent and by the delay caused by his failure to respond to her several attempts to obtain information from him as to his progress on her legal matter and/or his continued representation. After reviewing the ABA's Standards for Imposing Lawyer Sanctions , the board determined that the baseline sanction is suspension. The board adopted the aggravating and mitigating factors found by the committee.

Considering these circumstances, and the court's prior jurisprudence addressing similar misconduct, the board recommended that respondent be suspended from the practice of law for six months, with three months deferred, subject to a one-year period of probation. The board further recommended that respondent be required to attend the LSBA's Ethics School.

Neither respondent nor the ODC filed an objection in this court to the disciplinary board's recommendation.

DISCUSSION

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

The record supports the hearing committee's finding that based upon Ms. Smith's reasonable belief that respondent was her attorney, an attorney-client relationship indeed formed between them. The record also supports a finding that respondent failed to complete the succession work for Ms. Smith, failed to respond to her several requests for information, and failed to timely inform her that he would not complete the representation. Based on these facts, respondent has violated Rules 1.3, 1.4, 1.16(d), and 8.4(a) of the Rules of Professional Conduct.

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

Respondent knowingly violated a duty owed to his client. While the actual harm to her was minimal, a potential for harm existed. The applicable baseline sanction is suspension. The aggravating and mitigating factors as found by the hearing committee and adopted by the disciplinary board are supported by the record.

Turning to the issue of an appropriate sanction, the board cited the cases of In re: Jackson , 02-2764 (La. 4/9/03), 842 So.2d 359, and In re: Parker-Davis , 99-2953 (La. 1/7/00), 763 So.2d 569. Like the instant case, the misconduct in these cases hinged on whether an attorney-client relationship had been formed. After finding that such a relationship had indeed formed, we considered the remaining misconduct. The attorney in Jackson neglected a legal matter, which caused the claim to prescribe. The attorney in Parker-Davis failed to communicate with her client and allowed the client's case to prescribe. Both attorneys received a six-month suspension, with three months deferred, and one year of probation with conditions.

In Jackson and Parker-Davis , the misconduct caused serious actual harm in that the client's cause of action had prescribed as a result of the lawyer's misconduct. Although Ms. Smith did not suffer the identical harm that was suffered by the clients in those cases, she apparently suffered extreme duress as a result of respondent's inaction. Based on the content of respondent's e-mails to her, Ms. Smith justifiably believed that respondent was her attorney and that, as her attorney, he would perform the necessary successions. When he failed to do as she expected, she had to retain another attorney. The sanction recommended by the board is therefore warranted.

Accordingly, we will suspend respondent from the practice of law for six months, with three months deferred, subject to a one-year period of probation and Ethics School.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Gregory Swafford, Louisiana Bar Roll number 22165, be and he hereby is suspended from the practice of law for a period of six months. It is further ordered that three months of the suspension shall be deferred. Following the active portion of the suspension, respondent shall be placed on probation for a period of one year. As a condition of probation, respondent is ordered to attend and successfully complete the Louisiana State Bar Association's Ethics School. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

      On June 1, 2017, respondent was declared ineligible to practice law for failure to comply with mandatory continuing legal education requirements.

      In Louisiana State Bar Ass'n v. Bosworth , 481 So.2d 567, 571 (La. 1986), we held that the existence of an attorney-client relationship "turns largely on the client's subjective belief that it exists." In the instant case, copies of the communications between respondent and Ms. Smith which are contained in the record establish that she had a reasonable belief that respondent was her attorney.


text:
    CROSSTEX ENERGY SERVICES, LP, Crosstex Lig, LLC, and Crosstex Processing Services, LC v. TEXAS BRINE COMPANY, LLC, et al.
    No. 2018-C-0144
    Supreme Court of Louisiana.
    March 23, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF ASSUMPTION
    Writ denied.
    Crichton, J., would grant and assigns reasons.
    Crichton, J., would grant and assigns reasons.
   I would grant this writ application to review whether the court of appeal correctly affirmed the trial court's decision to grant summary judgment in favor of the insurer in this matter. In particular, I would investigate whether the allegations in the petition, when liberally interpreted, see Yount v. Maisano , 627 So.2d 148 (La. 1993), raise even the possibility of liability during the coverage period.


text:
    CROSSTEX ENERGY SERVICES, LP, Crosstex Lig, LLC, and Crosstex Processing Services, LC v. TEXAS BRINE COMPANY, LLC, et al.
    No. 2018-C-0145
    Supreme Court of Louisiana.
    March 23, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF ASSUMPTION
    Writ denied.
    Crichton, J., would grant and assigns reasons.
    Crichton, J., would grant and assigns reasons.
   I would grant this writ application to review whether the court of appeal correctly affirmed the trial court's decision to grant summary judgment in favor of the insurer in this matter. In particular, I would investigate whether the allegations in the petition, when liberally interpreted, see Yount v. Maisano , 627 So.2d 148 (La. 1993), raise even the possibility of liability during the coverage period.


text:
    IN RE: David L. BELL
    NO. 2018-B-0392
    Supreme Court of Louisiana.
    March 16, 2018
    ORDER
   Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that respondent, David L. Bell, Louisiana Bar Roll number 24020, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent's clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

IT IS FURTHER ORDERED that the Motion to Seal Exhibit 5 (in globo) filed by the Office of Disciplinary Counsel be and hereby is granted.

NEW ORLEANS, LOUISIANA, this _____ day of ___________________, 2018.

FOR THE COURT:

/s/

JUSTICE, SUPREME COURT OF LOUISIANA


author: PER CURIAM:

text:
    STATE EX REL. Jose Lima CASTRO v. STATE of Louisiana
    No. 2016-KH-2208
    Supreme Court of Louisiana.
    March 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

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


text:
    STATE EX REL. Richard RAY v. STATE of Louisiana
    No. 2016-KH-1887
    Supreme Court of Louisiana.
    March 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

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


text:
    IN RE: Christa Hayes FORRESTER
    NO. 2018-B-0287
    Supreme Court of Louisiana.
    March 23, 2018
    ATTORNEY DISCIPLINARY PROCEEDINGS
   PER CURIAM

Respondent and the Office of Disciplinary Counsel ("ODC") submitted a joint petition for consent discipline, in which respondent acknowledges that she neglected a legal matter and failed to communicate with a client. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Christa Hayes Forrester, Louisiana Bar Roll number 33133, be suspended from the practice of law for a period of six months. This suspension shall be deferred in its entirety, subject to respondent's successful completion of a one-year period of unsupervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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


text:
    STATE of Louisiana v. Jamie HAGER
    No. 2016-KP-2249
    Supreme Court of Louisiana.
    March 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

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

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

Attachment

STATE OF LOUISIANA NUMBER: 278194 22ND JUDICIAL DISTRICT COURT VERSUS PARISH OF ST. TAMMANY JAMIE HAGER STATE OF LOUISIANA FILED: September 1, 2016 DEPUTY CLERK

ORDER

Petitioner filed an application for Post Conviction Relief on July 11, 2016, alleging four claims for relief.

On September 9, 1999, petitioner was convicted of forcible rape. His conviction and sentence were affirmed on appeal. On October 15, 2003, petitioner filed an application for post-conviction relief, which was denied on December 4, 2003. The Louisiana First Circuit Court of Appeal denied petitioner's writ application on July 23, 2004. The Louisiana Supreme Court denied petitioner's application for supervisory writs on January 14, 2005, and denied his application for reconsideration on March 24, 2005. Thereafter, petitioner filed a petition for federal habeas corpus relief, which was dismissed without prejudice for failure to exhaust state court remedies on November 17, 2005.

The pending application was not filed within the time prescribed by Code of Criminal Procedure Article 930.8, and petitioner has failed to establish the applicability of an exception to such time limitation.

Accordingly, petitioner's application for post-conviction relief shall not be considered.

IT IS ORDERED that the Clerk of Court of the Parish of St. Tammany give notice of this Order to petitioner, the District Attorney for the Parish of St. Tammany, and the petitioner's custodian.

Covington, Louisiana, this 1 day of September, 2016.

HONORABLE ALLISON H. PENZATO


text:
    STATE EX REL. Darien P. HINKLE v. STATE of Louisiana
    No. 2016-KH-2194
    Supreme Court of Louisiana.
    March 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, his claim is non-cognizable and repetitive. La.C.Cr.P. arts. 930.3 and 930.4 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030.

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


text:
    STATE EX REL. Gary JUENGAIN v. STATE of Louisiana
    No. 2016-KH-2175
    Supreme Court of Louisiana.
    March 23, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator's sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his third application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in

2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Scott Anthony LAURENT v. STATE of Louisiana
    No. 2016-KH-2174
    Supreme Court of Louisiana.
    March 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

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

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


text:
    STATE EX REL. Gene Ellis WILLIAMS v. STATE of Louisiana
    No. 2016-KH-2130
    Supreme Court of Louisiana.
    March 23, 2018
    ON SUPERVISORY WRITS TO THE SECOND JUDICIAL DISTRICT COURT, PARISH OF CLAIBORNE
   PER CURIAM:

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

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


text:
    STATE EX REL. James K. DAVIS v. STATE of Louisiana
    No. 2016-KH-2128
    Supreme Court of Louisiana.
    March 23, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

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

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


text:
    STATE EX REL. Michael Dane NYBERG v. STATE of Louisiana
    No. 2016-KH-1667
    Supreme Court of Louisiana.
    March 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ASSUMPTION
   PER CURIAM:

Denied. Relator does not identify any illegal term in his sentence, and therefore, his filling is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

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


text:
    IN RE: W. Glenn SOILEAU
    NO. 2018-B-0394
    Supreme Court of Louisiana.
    March 23, 2018
    ORDER
   Considering the Petition for Interim Suspension, or in the alternative, for Transfer to Disability Inactive Status, filed by the Office of Disciplinary Counsel, and the correspondence from respondent replying thereto,

IT IS ORDERED that W. Glenn Soileau, Louisiana Bar Roll number 12249, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that the Office of Disciplinary Counsel may seek the appointment of a trustee(s) to protect the interests of respondent's clients pursuant to the provisions of Supreme Court Rule XIX, § 27, if appropriate.

NEW ORLEANS, LOUISIANA, this _____ day of ____________________, 2018.

FOR THE COURT:

/s/

JUSTICE, SUPREME COURT OF LOUISIANA


text:
    STATE EX REL. Sammie ROBINSON v. STATE of Louisiana
    No. 2017-KH-0061
    Supreme Court of Louisiana.
    March 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTIETH JUDICIAL DISTRICT COURT, PARISH OF WEST FELICIANA
   PER CURIAM:

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

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

The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Kevin WISE v. STATE of Louisiana
    No. 2016-KH-1879
    Supreme Court of Louisiana.
    March 23, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Relator's remaining claims were fully litigated on direct review and/or are not cognizable post-conviction. La.C.Cr.P. art. 930.3 ; La.C.Cr.P. art. 930.4 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030 ; State v. Thomas , 08-2912 (La. 10/16/09), 19 So.3d 466.

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


text:
    STATE of Louisiana v. Kerry PARKER
    No. 2018-KK-0290
    Supreme Court of Louisiana.
    March 23, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted. The district court's ruling that granted defendant's motion to suppress cocaine, methamphetamine, and drug paraphernalia found in defendant's possession is reversed and the matter is remanded for further proceedings. The officers observed defendant in apparent violation of Section 54-401(a) of the Municipal Code. While the officers may have had no actual subjective intent to arrest defendant for obstructing the sidewalk in violation of the city ordinance, the officers were entitled to search defendant after observing him commit a misdemeanor offense in their presence and then arrest him, albeit not for the offense for which they initially had probable cause. See State v. Butler , 12-2359 (La. 5/17/13), 117 So.3d 87.

REVERSED AND REMANDED

JOHNSON, C.J., would deny.

CRICHTON, J., would deny and assigns reasons

GENOVESE, J., would deny for the reasons assigned by Justice Crichton

CRICHTON, J., would deny and assigns reasons:

I disagree with the majority and would deny this writ application. Defendant sat on a stoop in the French Quarter with his legs extended onto the sidewalk, but pedestrians were nonetheless able to use the sidewalk and pass by him. Under a broad reading of State v. Butler , 12-2359 (La. 5/17/13), 117 So.3d 87, this Court finds that trivial conduct rendered the defendant in this instance vulnerable to being stopped and searched by police. The Orleans Municipal Code provides a plethora of similar minor misdeeds that, under a broad interpretation of Butler , could cause any citizen subject to being apprehended by police and searched. In my view, today's ruling skirts the line of what is reasonable under the Fourth Amendment.


text:
    William L. NORWOOD, M.D. and Jennifer B. Norwood, Husband and Wife, and Norwood Minerals, LLC v. MOBLEY VALVE SERVICES, INC., D. Mark Mobley and Kimberly B. Mobley.
    No. 2014-C-1882.
    Supreme Court of Louisiana.
    Jan. 16, 2015. Rehearing Denied March 6, 2015.
   PER CURIAM.

The writ is granted in part. The court of appeal specifically held that plaintiffs did not prove sufficient grounds to pierce the corporate veil. The judgment is therefore corrected to cast the defendant, Mobley Valve Services, Inc., only, in judgment. In all other respects, the writ is denied.

WRIT GRANTED IN PART AND DENIED IN PART.


text:
    STATE ex rel. Jonathan J. LEBLANC v. STATE of Louisiana.
    No. 15-KH-0275.
    Supreme Court of Louisiana.
    Nov. 20, 2015.
   PER CURIAM.

Denied. Relator fails to show he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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

HUGHES, J., dissents and would grant the writ.


text:
    In re Donna Unkel GRODNER.
    No. 2015-B-1093.
    Supreme Court of Louisiana.
    June 30, 2015.
   PER CURIAM.

Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline in which respondent acknowledges that she made affirmative misrepresentations to a federal court while serving as counsel in a civil action, in violation of Rules 3.3, 3.4, 4.1, and 8.4(c) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Donna Unkel Grodner, Louisiana Bar Roll number 20840, be suspended from the practice of law for a period of sixty days, subject to the conditions set forth in the petition for consent discipline.

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


text:
    STATE of Louisiana v. Travis BOYS
    NO. 2018-KK-0404
    Supreme Court of Louisiana.
    March 13, 2018
    Denied.
    GUIDRY, J., would grant a stay and docket for full briefing, argument and opinion.
    CRICHTON, J., would grant a stay and docket for full briefing, argument and opinion.
    GENOVESE, J., would grant a stay and docket for full briefing, argument and opinion.


text:
    STATE of Louisiana v. Idalecio ANDRADE
    NO. 2016-KP-1427
    Supreme Court of Louisiana.
    March 13, 2018
    Not considered. See La.S.Ct. Rule IX, § 6.


text:
    STATE of Louisiana v. Tommie SMITH
    NO. 2018-KK-0393
    Supreme Court of Louisiana.
    March 12, 2018
    GRANTED. Considering the totality of circumstances, including the fact that the witnesses are located outside of the United States, the trial court abused its discretion in denying the State's motion for a continuance. The ruling of the trial court is therefore reversed and the State's motion to continue is granted.


text:
    Ben GUILLORY v. CITY OF NEW ORLEANS, et al
    NO. 2018-C-0151
    Supreme Court of Louisiana.
    March 23, 2018
    Not considered. Not timely filed. See La.S.Ct. Rule X, § 5.


text:
    STATE of Louisiana v. Travis BOYS
    NO. 2018-KK-0429
    Supreme Court of Louisiana.
    March 17, 2018
    Denied.


text:
    STATE of Louisiana v. Alonzo GONZALES and Brent Braneon, Jr.
    NO. 2018-KK-0420
    Supreme Court of Louisiana.
    March 16, 2018
    Denied.


text:
    STATE of Louisiana v. Tarik MCMASTERS
    NO. 2018-KK-0334
    Supreme Court of Louisiana.
    March 15, 2018
    Denied.


text:
    STATE of Louisiana v. Sherrod BRUMFIELD
    NO. 2016-KP-2116
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


text:
    STATE EX REL. James K. DAVIS v. STATE of Louisiana
    NO. 2016-KH-2265
    Supreme Court of Louisiana.
    March 23, 2018
    Denied. Moot. See also State v. Davis, 16-2128 (La. __/__/18), --- So.3d ----.


text:
    STATE EX REL. Michael JOHNSON v. STATE of Louisiana
    NO. 2017-KH-0133
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


text:
    Mary T. "Terry" BAKER, in her official capacity as Assessor for Union Parish v. TENNESSEE GAS PIPELINE COMPANY
    NO. 2017-C-2072
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE EX REL. Marlon CARTER v. STATE of Louisiana
    NO. 2017-KH-1358
    Supreme Court of Louisiana.
    March 23, 2018
    Denied,


text:
    Robert HARVEY, Darleen Jacobs Levy and Susan and William Laurendine v. The BOARD OF COMMISSIONERS FOR the ORLEANS LEVEE DISTRICT, PARISH OF ORLEANS
    NO. 2018-C-0148
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Joyle PERTUIT v. The LOUISIANA SCHOOL EMPLOYEES RETIREMENT SYSTEM and the Jefferson Parish School Board
    NO. 2018-C-0163
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


text:
    STATE of Louisiana v. Tyrance CHANCELLOR
    NO. 2018-KK-0242
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


text:
    STATE of Louisiana v. Darryl ROBERTSON
    NO. 2017-KP-0113
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


text:
    Sarah BARBER, et al. v. LOUISIANA MUNICIPAL RISK MANAGEMENT AGENCY GROUP SELF-INSURED FUND, et al.
    NO. 2018-C-0180
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


text:
    97 RENTALS, L.L.C. v. MARLIN SERVICES, INC.
    NO. 2018-CC-0197
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.


author: WEIMER, J., would grant.

text:
    STATE of Louisiana v. McKartney YOUNG
    NO. 2018-KK-0303
    Supreme Court of Louisiana.
    March 23, 2018
    Denied.
   WEIMER, J., would grant.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 13-PDB-122
    NO. 2018-OB-0007
    Supreme Court of Louisiana.
    March 23, 2018
    Leave to appeal denied.