author: PITMAN, J.

text:
    Derrick DEVEREUX, Plaintiff-Appellee v. Sheena ATKINS, Defendant-Appellant
    No. 51,473-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 21, 2017

      NEWMAN, OLIVEAUX & MAGEE, LLP, By: Trey N. Magee, Counsel for Appellant.
    NANCI S. SUMMERSGILL, Counsel for Appellee.
    Before DREW, PITMAN, and GARRETT, JJ.
   PITMAN, J.

hSheena Atkins appeals the ruling of the trial court which denied her motion to dismiss the father’s, Derrick Devereux’s, objection to the hearing officer’s recommendation regarding custody of their child. For the following reasons, we affirm.

FACTS

Derrick Devereux and Sheena Atkins were never married, but had a daughter together in April 2010. The couple lived with their child at Devereux’s mother’s house in Swartz, Louisiana, in Ouachita Parish. In January 2015, Atkins began staying in West Monroe, Louisiana, with her grandmother, who needed medical assistance. In March 2015, Atkins told Dev-ereux that she had a boyfriend who lived near her grandmother.

Because there had never been a judicially determined or court-ordered custody arrangement prior to June 2015, Devereux filed a petition seeking to establish custody and domiciliary status. He alleged that it would be in the child’s best interest that he be named domiciliary parent. Between the period the suit was filed and when it was heard, Atkins married her boyfriend, “Red” Vogt.

On August 18, 2015, Atkins filed an answer and reconventional demand stating she was in a better position to care for the child and to provide her with a structured and stable environment. At the hearing on September 14, 2015, the hearing officer recommended that the parties share joint custody of the minor child, with Atkins being designated as the domiciliary parent and Devereux having visitation every other weekend and splitting holidays and summer vacation.

laOn September 17, 2015, Devereux filed an “Objection to Hearing Officer Conference Report,” objecting to the recommendation of the hearing officer..The basis of the objection was that the recommendation was allegedly made “taking into consideration the twelve factors set forth in Louisiana Civil Code Article 134,” but those considerations were not''discussed or taken into consideration during the conference. Devereux objected to the findings by the hearing officer and claimed that there was no consideration of the twelve factors, and, further, that, had the hearing officer considered those factors, he (Devereux) would have been considered the more appropriate parent to be granted domiciliary custody of the child. He claimed that this would be proven at the trial and asked that the matter “proceed to hearing as currently scheduled, on all issues” to which he had objected.

On September 24, 2015, the written conference report was filed into the record, and a temporary order adopting and implementing the hearing officer’s recommendations was signed by the trial judge on September 21, 2015. That temporary order contains a paragraph which notes that there is no trial or hearing date currently scheduled and that'it is the responsibility of the objecting party' or parties to file an appropriate pleading requesting' a trial or hekring date no later than 90 days after the filing of the objections or the continuance of the case without date, “or the objections will be deemed abandoned and will be dismissed without prejudice and the report and recommendations of the hearing officer will be adopted as the judgment of the court.”

On December 23, 2015, Devereux filed a motion to set a trial date on the objection he had filed on September 17, 2015, but which was not filed in lathe record until September 24, 2015. The trial court set the matter for trial on the merits for April 12, 2016 which was a date available to both parties’ attorneys. Atkins’s attorney 'did not object to the setting of the court date at that time.

On March 30, 2016, Atkins’s attorney filed an “Ex Parte Motion to Dismiss Objection For Failure to Comply with Local Rule Appendix 35,5” and stated that the hearing date had to be scheduled not later than 90 days after filing of the objection or it would be deemed abandoned and dismissed without- prejudice and the hearing officer’s recommendation would be adopted as the judgment of the court. Atkins claimed that she was entitled to dismissal of Devereux’s objection to the hearing officer’s recommendation because his request for trial was filed later than December 17, 2015, which was over 90 days after the objection was made. The trial court set the motion for hearing on the same date as the trial on the merits-—April 12, 2016.

A trial was held on April 12, 2016, and the motion to dismiss the objection to the hearing officer’s recommendation was the first item to be heard. Both sides presented arguments, and the trial court ruled that the motion, to dismiss would be denied. In so ruling, it stated that, although it found that the motion to set the matter for trial was filed more than 90 days after the objection was filed in the record, there were custody issues which the court needed to review. Further, it stated that the local rules are discretionary and do not provide a “hard and fast” deadline that the court had to follow. For those reasons, the mótion to dismiss was denied.

Thereafter, the merits of the child custody dispute were heard, and the matter was continued until May 24, 2016. On that date, more evidence was | ¿taken, and the trial court gave a ruling in open court, which recited the twelve factors found in La. C.C, art. 134 and compared the facts of the case to those factors. It awarded joint custody to the parties, designating domiciliary custody of the child to Devereux, with Atkins to-have substantial visitation rights.

On June 10, 2016, Atkins filed a “Request for Written Reasons for Judgment,” which mistakenly stated that the parties “had trial on March 9, 2016 and March 24, 2016” and requested in writing the court’s finding of fact and reasons for judgment. In its June 16, 2016 response to Atkins’s request, the trial court granted her request and handwrote the following on its order:

[t]he court’s oral reasons for judgment are hereby adopted as its written reasons for judgment (see below).
This Court orders that its’ [sic'] previously given oral reasons for judgment that were stated at length in open court on the date of this hearing be and are hereby Adopted as its’ [sic ] written reasons for judgment. As these oral reasons previously given were very detailed, either party may'request and pay the appropriate fee of the court reporter to have the court’s oral ruling transcribed and thereby obtain the court’s written reasons.

On July 27, 2016, the trial court issued a judgment which, once again, recited the incorrect dates of the hearings as March 9 and March 24, 2016, and stated that, according to the oral reasons for judgment, a decree was renderéd awarding joint custody of the child to both Devereux and Atkins and designating Devereux as the primary custodial parent (domiciliary parent), subject to Atkins’s visitation as set forth in the plan of joint custody. UThe judgment states that it was rendered in court the 24th day of March, 2016, and that the judgment was signed on July 28, 2016.

On October 4, 2016, Atkins filed an untimely motion for appeal; and, on January 19, 2017, this court issued an order for her to show cause why her appeal should not be dismissed. Her attorney responded with reasons for the delay, which were accepted by this court; and, on February 23, 2017, this court rescinded the rule to show cause and the clerk of this court was directed to reissue briefing deadlines. This appeal by Atkins, which raises a limited issue pertaining to the trial court’s failure to dismiss for untimeliness the objection to the hearing officer’s recommendation, followed.

DISCUSSION

Atkins argues that the trial court committed manifest error by denying her motion to dismiss the objection to the hearing officer’s recommendation and claims that she was entitled to dismissal based upon Local Rule of Court fotind at Appendix 35.5(G). She also argues that the local rule required Devereux to set the matter for trial within 90 days of the date of the objection. She contends the objection should be deemed abandoned and dismissed without prejudice and the report and recommendations of the hearing officer adopted as the judgment of the court.

Devereux argues that .the trial court correctly denied the motion .to dismiss his objection to the hearing officer’s report since it found there were matters that needed to be heard pertaining to custody and the best interest of the child. He notes that Local Rule 35.5 sets forth the procedure to be followed in cases involving.a hearing officer’s report, but contends that a dismissal for a slightly late request for a hearing is not mandatory. In fact, he argues, the judge is not bound by the recommendation of the hearing] fi officer and may accept, reject or modify it in whole or in part. He asserts that, if the trial court in its discretion determines that additional information is needed, it may receive evidence at the hearing or remand the proceeding to the hearing officer.

Devereux further argues that the trial court had discretion to consider other matters pertinent to this case that it believed were in the best interest of the child, and the trial court did not abuse its discretion in denying the ex parte motion to dismiss. He contends it clearly believed the need to examine the La. C.C. art. 134 factors considered in custody matters and, therefore, refused to dismiss his objection to the hearing officer’s report.

The Appendix to Local Rule 35.5(G) states as follows:

G. Abandonment of Hearing Officer Conference Objections
1. Upon the filing of any objections, if no trial or hearing date is pending, or the case is thereafter continued without date, it shall be the responsibility of the objecting party or parties to file an appropriate pleading requesting a trial or hearing date with the assigned judge no later than 90 days after filing of the objections or the continuance of the case without date, or the objections will be deemed abandoned and will be dismissed without prejudice (Cf. L.C.C.P. Art. 561) [sic ] and the report and recommendations of the hearing officer will be adopted as the judgment of the court.

Rule 35.7 concerns Trial After Objections Filed and states:

If any party files a timely objection to the recommendations of the hearing officer, then the matter shall be set before the judge for hearing. See Appendix 35.7 for court-specific rules for setting hearing dates. The judge shall not be bound by the recommendation of the hearing officer. Further, the judge may review the hearing officer’s conference report, and shall accept, reject, or modify in whole or in part the findings of the hearing officer and give them such weight as deemed appropriate based on the evidence adduced at the hearing.

|7In Rodgers v. Rodgers, 50,044 (La. App. 2 Cir. 6/10/15), 170 So.3d 382, this court stated that procedural rules exist for the sake of substantive law and to implement substantive rights, not as an end in and of themselves. Citing, La. C.C.P. art. 5051; Unwired Telecom Corp. v. Par. of Calcasieu, 03-0732 (La. 1/19/05), 903 So.2d 392; B.A. Kelly Land Co. v. Questar Expl. & Prod. Co., 47,509 (La. App. 2 Cir. 11/14/12), 106 So.3d 181, writ denied, 13-0331 (La. 4/19/13), 112 So.3d 223. A court may adopt local rules for the conduct of judicial business before it, including those governing matters of practice and procedure which are not contrary to the rules provided by law. La. C.C.P. art. 193.

Local rales of court cannot conflict with legislation. Rodrigue v. Rodrigue, 591 So.2d 1171 (La. 1992); Clark v. Dep’t of Police, 12-1274 (La. App. 4 Cir. 2/20/13), 155 So.3d 531, writ denied, 13-0642 (La. 4/26/13), 112 So.3d 846. Legislation contemplates that the court must consider the best interest of the child in awarding custody; and, in awarding child support, it must consider the needs of the child and the ability of the parents to provide support. La. C.C. arts. 131, 141. Rodgers, supra.

The procedural rule invoked by Atkins is only that, a procedural rule. It exists for the sake of substantive law and to implement substantive rights, not as an end in itself. The local rule, which stated that the objection could be dismissed and the hearing officer’s recommendation accepted by the trial court if the hearing on the objection was not requested within 90 days of the filing of the objection, must be subordinated to the substantive law regarding the custody and the best interest of the child. The procedural rule is not intended to deprive litigants of their day in court, especially in fact-intensive custody cases.

IsFor the foregoing reasons, the judgment of the trial court is affirmed.

CONCLUSION

The judgment of the trial court in favor of Derrick Devereux and against Sheena Atkins, denying the motion to dismiss the objection to the hearing officer’s recommendation, is hereby affirmed. Costs of appeal are assessed to Sheena Atkins.

AFFIRMED.

      . As stated earlier, the hearing on the motion to dismiss the objection as untimely and the hearing on the merits of the custody case were held on April 12 and May 24, 2016. There is nothing in the record which indicates that anything happened on the dates mentioned in the request for written reasons for judgment.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    Wanda GREEN, Plaintiff-Appellee v. ABC RENTALS (Jane Surratt), Defendants-Appellants
    No. 51,461-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 21, 2017

      STEPHEN ADAM NORTH, Counsel for Appellants
    WANDA GREEN, In Proper Person
    Before WILLIAMS, DREW, and STONE, JJ.
   STONE, J.

|! Appellant, Jan Surratt, doing business as ABC Rentals, appeals the trial court’s judgment in favor of Appellee, Wanda Green, awarding Green $18,500 in damages. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On August 1, 2014, Wanda Green (“Green”) entered into a contract with Jan Surratt, doing business as ABC Rentals (“Surratt”), to lease a residential property at 1202 S. 5th Street in Monroe, Louisiana (“the property”). The lease required Green to pay monthly rent of $500. A week after Green executed the lease, she and her four children moved into the property. During the time she occupied the property, Green made numerous complaints regarding the property’s condition, including roach infestation, a leaking roof, clogged drains, and rotted floors.

On November 12, 2015, Green filed a petition against Surratt in Monroe City Court seeking $5,000 in damages. In the petition, Green asserted “[sjince beginning my lease with Mrs. Surratt we have not been able to live comfortably in what we are renting. Nothing has worked properly and the roof has leaked consistently for over a year causing damages and pain and suffering.” According to Green, Surratt only “patched things up,” and never fixed the underlying issues with the ‘property, and as a result, she and her children were forced to live in an uninhabitable property.

|aOn December 5, 2015, less than a month after Green filed her petition, Sur-ratt sent Green notice to vacate the property. Green and her children moved out of the property two days later.

On January 25, 2016, Surratt, represented by attorney Stephen A. North (“North”), filed an answer denying the allegations in Green’s petition. On May 31, 2016, North received notice by. certified mail that a trial on the matter was set for July 12,2016 (“notice of trial”).

On July 12, 2016, neither North nor Surratt was present for trial, and the trial court proceeded in their absence. After hearing the evidence presented by Green, the trial court rendered judgment in favor of Green. The trial court awarded Green $10,000 in general damages, and $8,500 in rental payments. On August 4, 2016, the trial court signed a final judgment in the matter and notice of judgment was served on North. ' , .

On August 11, 2016, North, on behalf of Surratt, filed a motion for new trial arguing the judgment is contrary to the law and evidence. In the motion, North asserted Surratt was not at fault for their failure to appear for trial. North acknowledged he received notice of trial, but claimed, through “error and inadvertence,” the trial date was not calendared. After a hearing, the trial court denied the motion. Surratt now appeals.

DISCUSSION

Denial of Motion for New Trial

Since her attorney failed to appear for trial or notify her of the trial date, Surratt argues she was denied her right to present a defense. Surratt |acontends her absence -at trial was not her fault, and thus, the trial court abused its discretion in denying her motion for new trial. La. C.C.P. art. 1972 provides:

A new trial shall b¿ granted, upon contradictory motion, of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

A motion for new trial may also be granted in any case if there is good ground therefor, except as otherwise provided by law. La. C.C.P. art. 1973. When the trial court is convinced by an examination of the facts that the judgment would result in a miscarriage of justice, a new trial should be ordered pursuant to La. C.C.P. art. 1973. Pitts v. Louisiana Med. Mut. Ins. Co., 2016-1232 (La. 03/15/17), 218 So.3d 58, 2017 WL 1041228.

When reviewing the denial of a motion for new trial, unless an abuse of discretion can be exhibited, the trial court’s decision will not be reversed. Williams v. Super Trucks, Inc., 36,993 (La. App. 2 Cir. 04/09/03), 842 So.2d 1210, 1220, writ denied, 2003-1303 (La. 09/05/03), 852 So.2d 1042.

La. C.C.P. art. 1672 mandates the dismissal of an action “when the plaintiff fails to appear on the day set for trial.” That article also grants the trial court discretion to dismiss an action “when all the parties thereto fail to appear on the day set for trial[.]”

The Louisiana Code of Civil Procedure does not specifically provide for situations in which a defendant in a civil matter fails to appear for trial. However, appellate courts have upheld judgments against defendants who failed to appear for trial. In Northshore Ins. Agency, Inc. v. Farris, 634 So.2d 867, 872 (La. App. 1 Cir. 1993), the defendants’ counsel received notice of the trial date. However, days later, counsel filed a motion to withdraw, which was signed by the trial court. The defendants did not appear for trial, and the trial court allowed the plaintiff to present its case. Thereafter, a judgment was signed in favor of the plaintiff. The defendants, through newly retained counsel, filed a motion for new trial, arguing that their failure to appear for trial was a result of “a misunderstanding.” The trial court denied the motion and the first circuit affirmed, finding all parties were served with valid notice of the trial date. See also Joseph v. Hendrix, 536 So.2d 448, 450 (La. App. 1 Cir. 1988) (“The only excuse offered by defendant for his failure to appear for trial was that he had written the wrong date on his calendar.”); and Mayo v. Simon, 94-590 (La. App. 3 Cir. 11/02/94), 646 So.2d 973, 976 (The attorney for the defendants “blamed his absence on his secretary because she did not call the court to advise of a scheduling conflict.”).

| (After a review of the record, we find the evidence presented at trial was sufficient to prove by a preponderance of the evidence that Surratt failed to make the necessary repairs to maintain the property in a condition suitable for the purpose for which it was leased. La. C.C. art. 2691. While it is unfortunate that neither Surratt nor her counsel was present for trial, North’s failure to calendar the trial date does not merit the granting of a new trial. Northshore, supra; Joseph, supra; Mayo, supra. Accordingly, the trial court did not abuse its discretion in denying Surratt’s motion for new trial.

Damage Awards

Since Surratt failed to make the necessary repairs to maintain the property in a suitable condition for the purpose for which the property was leased, she is liable for damages caused by her failure. La. C.C. arts. 1994, 2691, and 2696. The trial court awarded Green $10,000 in general damages and $8,500 in rental payments. Surratt argues the trial court erred in awarding Green general damages in excess of the $5,000 she claimed, and, additionally, the return of all her rental payments.

First, we address whether the trial court’s general damage award was in error. General damages involve mental or physical pain and suffering, inconvenience, and loss of intellectual or physical enjoyment. Harper v. State Farm Mut. Auto. Ins. Co., 50,728 (La. App. 2 Cir. 06/22/16), 198 So.3d 168, 176. A lessee is entitled to damages for an uninhabitable premises, and these damages may include mental anguish. Graci v. Gasper John Palazzo, Jr., L.L.C., 12-853 (La. App. 5 Cir. 05/30/13), 119 So.3d 741, 750, writ denied, 2013-1547 (La. 10/04/13), 122 So.3d 1024; Gennings v. Newton, 567 So.2d 637, 642 (La. App. 4 Cir. 1990). A trial court’s award of general damages should not be overturned by a reviewing court absent an |fiabuse of discretion. Kennedy v. Thomas, 34,530 (La. App. 2 Cir. 04/04/01), 784 So.2d 692, 699.

While Green’s petition only demanded $5,000 in damages, the trial court was allowed to grant Green any relief she was entitled, pursuant to La. C.C.P. art. 862. At trial, Green testified that she suffered damages to her personal property due to the leaking roof, including damage to her living room furniture and baby beds. She stated she was constantly cleaning up the leaks and moving furniture to prevent further damage to the floors and her property. This aggravated Green’s prior back issues, and led to a third back surgery in September 2015. According to Green, the rotted floors were so bad that her feet would go through the floor. Green testified, on one occasion, her two-year-old daughter was running throughout the property when she slipped and her foot went through the wall after sliding into to it. Based on the above facts, we find no issue with the trial court’s $10,000 general damage award.

As for the trial court’s award of $8,500 in rental payments, when a party to the lease fails to perform her obligations under the lease, the other party may obtain dissolution of the lease pursuant to the provisions of the Title of “Conventional Obligations or Contracts.” La. C.C. art. 2719. Upon dissolution of a contract, the parties shall be restored to the situation that existed before the contract was made. La. C.C. art. 2018. Since Surratt failed to perform her obligations under the lease, Green had a right to judicial dissolution of the lease. Green presented evidence that the property was uninhabitable, and Surratt should not have been renting it. Therefore, the trial court was within its discretion in dissolving the lease, and awarding Green $8,500 in unentitled rent paid to Surratt.

CONCLUSION

For the foregoing reasons, the trial court’s judgment awarding Wanda Green $18,500 in damages is affirmed. Costs of this appeal are assessed to Jan Surratt, doing business as ABC Rentals.

AFFIRMED.

      . In Green’s appellate brief, she stated the defendant’s correct name is “Jan Surratt” and not "Jane Surratt.”

      . In general, a judgment denying a motion for new trial is an interlocutory order, and not a final appealable judgment. Hayes v. Hayes, 607 So.2d 3, 5 (La. App. 2 Cir. 1992). However, courts consider the appeal of a denial of a motion for new trial as an appeal of the judgment on the merits, when it is clear from the appellant’s brief that the intent was to appeal the merits of the case. Harter v. Harter, 50,942 (La. App. 2 Cir. 11/10/16), 208 So.3d 971, 979. Despite the language in Surratt’s appellate brief stating that she is appealing the trial court’s denial of her motion for new trial, we And this matter appropriate for decision. An examination of Surratt’s appellate brief indicates she is not only appealing the denial of her motion for new trial, but, additionally, the amount of damages the trial court awarded Green. Since Surratt has shown a clear intention to appeal the merits of the case, she is also entitled to seek review of the denial of her motion for new trial. See Barnett v. Barnett, 45,721 (La. App. 2 Cir, 12/22/10), 56 So.3d 1044, 1051 (As a general rule, an "appellant is entitled to seek review of all adverse interlocutoiy judgments prejudicial to him in addition to the review of the final judgment.”).

      . La. C.C.P. art. 862 provides:
      Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.

      . La. C.C. art. 2013 provides in pertinent part: "When the obligor fails to perform, the obligee has a right to the judicial dissolution of the contract or, according to the circumstances, to regard the contract as dissolved. In either case, the obligee may recover damages."


author: BLEICH, J. (Pro Tempore)

text:
    Roger BURCHFIELD and Carol Burchfield, Plaintiffs-Appellants v. Forrest H. WRIGHT, M.D., Thomas Renda, M.D., and Willis Knighton Medical Center, Defendants-Appellees
    No. 51,459-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 28, 2017
    Rehearing Denied August 3, 2017

      THOMAS, SOILEAU, JACKSON, BAKER & COLE, By: Steven E. Soileau, Counsel for Appellants
    MCNEW, KING & LANDRY, By: Brady D. King, II, Counsel for Appellees
    Before STONE, COX, and BLEICH (Pro Tempore), JJ.
   BLEICH, J. (Pro Tempore)

11 Carol and Roger Burchfield appeal a judgment by the First-Judicial District Court, Parish of Caddo, State of Louisiana, in their favor and against the Patient’s Compensation Fund in the amount of $ 400,000.00. The Patient’s Compensation Fund (“PCF”) answers the appeal, seeking a reduction in the judgment’s award. For the following reasons, we affirm the judgment of the trial court, as amended, and render judgment in favor of Carol and Roger Burchfield.

Facts

On August 14, 2013, after referral by his gastroenterologist, Roger Burchfield was admitted to Willis-Knighton Medical Center (“Willis-Knighton”) for gallbladder surgery to be performed by Forrest Wright, M.D. Pursuant to Dr. Wright’s pre-operative orders, Roger arrived at the hospital and underwent a chest X-ray and EKG the morning of the surgery. Roger’s EKG was not read by Dr. Wright prior to surgery. The previously ordered EKG indicated: 1) possible left atrial enlargement; 2) nonspecific intraventricular block; 3) possible septal infarct; and 4) inferior infarct. The chest x-ray, which, again, was not read by Dr. Wright, the anesthesiologist, or hospital nursing staff prior to Roger’s surgery, showed congestive heart failure. Roger was unaware of any of these conditions.

With the EKG and chest X-ray having gone unread by Dr. Wright, and despite the findings from the tests, Roger was placed under general anesthesia, and the surgery proceeded. There were no apparent immediate complications, and he was discharged later that day.

After almost 32 hours (on August 16), Roger presented at an emergency room near his residence with shortness of breath and significant ^swelling. He was determined to be in critical condition and was transported via ambulance to Willis-Knighton where he was admitted to the intensive care unit. Later, it was concluded that Roger had suffered an acute myocardial infarction (i.e., a heart attack) and respiratory failure, as well as worsening of pulmonary edema, congestive heart failure, and bilateral pleural effusions. Roger was intubated and placed in a medically induced coma. A heart catheterization was performed, by which an intra-aortic balloon pump was inserted to assist the pumping of his heart. Roger was also placed on a ventilator to assist his breathing.

Apparently, because the damage to Roger’s heart was too great, the medical team determined Roger was not a candidate for heart bypass surgery, and he had to be transported to Baylor Medical Center in Dallas, Texas, on August 22, 2013. There, he was evaluated for a left ventricular assist device and/or a heart transplant. On September 3, 2013, Roger received a new heart.

It appears from the record that Roger has had a generally satisfactory recovery from the transplant (however “satisfactory” a recovery can be with a transplanted organ). Nonetheless, he is disabled from his previous lifelong profession as a heavy equipment mechanic, and as a heart transplant patient, he is now laboring under strict medical treatment for the remainder of his life. The life expectancy for heart transplant patients is 13 years; thus Roger, who was 58 years old at the time of this incident, is expected to have, statistically, a much shortened lifespan.

The Burchfields’ case was brought before the Medical Review Panel (“MRP”), which concluded that Dr. Wright had breached the standard of care by failing to review the pre-op tests he had ordered. According to the |sMRP’s opinion, Roger’s gallbladder surgery was not an emergency. Further, the MRP opined the chest X-ray report “warranted postponing the surgery until a cardiology consult could be obtained ... the failure to review the chest x-ray report and request a cardiology consult was a factor of the resultant damages.” (Emphasis added).

The Burchfields filed a medical malpractice claim against the health care providers involved vsith Roger’s surgery. Two of the defendants ultimately were dismissed, and the claim against Dr. Wright eventually was settled for $ 100,000.00. After a three-day jury trial against the PCF, the jury determined there were no damages caused by the breach of the standard of care, but concluded that Dr. Wright’s breach of the standard of care caused Roger a lost chance of a better outcome. The jury awarded Roger a lump sum of $ 680,000.00 in damages for his lost chance, but it did not indicate if those damages were general or special.

The trial court, recognizing the medical malpractice statutory cap of $ 500,000.00, reduced the jury verdict from $ 680,000.00 to $ 400,000.00 and rendered its judgment. The Burchfields filed a motion for judgment notwithstanding the verdict, which was denied. This appeal by the Burchfields ensued, and the PCF answered the appeal seeking a further reduction in the award.

Discussion

On appeal, the Burchfields raise several assignments of error, but they primarily take issue with the jury verdict form and interrogatories contained |4therein. Most problematic in this case is the reduction in the jury award by the trial judge, which is addressed in the last of the Burchfield’s assignments. "Whereas we agree with the jury’s ultimate finding that Roger did indeed suffer a lost chance of a better outcome as a result of Dr. Wright’s breach of the standard of care, we believe the jury’s responses to the interrogatories are internally inconsistent, contributing to the troublesome reduction by the trial judge of the jury’s award.

The Burchfields argue that the trial court erred in concluding that a lost chance of a better outcome could consist only of general damages, thereby reducing the jury verdict from $ 680,000.00 to $ 400,000.00. We agree, primarily because we find the answers to interrogatory numbers one and six on the jury verdict form to be patently inconsistent, leading to an inability of the jury to consider all of the damages suffered by the Burchfields as a result of Roger’s heart transplant. The verdict form is attached as Exhibit “A.”

"When faced with a legal error that has tainted a jury verdict, the general rule is that where the record is “otherwise complete, the appellate court should make its own independent de novo review of the record to determine a preponderance of the evidence.” Evans v. Lungrin, 1997-0541 (La. 02/06/98), 708 So.2d 731, 735; see also, Lam v. State Farm Mut. Auto. Ins. Co., 2005-1139 (La. 11/29/06), 946 So.2d 133, 135. The trial court’s submission to the jury of “a verdict sheet which either confuses or misleads the jury” constitutes reversible legal error that triggers de novo review. Oddo v. Asbestos Corp. Ltd., 2014-0004 (La. App. 4 Cir. 08/20/15), 173 So.3d 1192, 1205, writ denied, 2015-1712 (La. 11/06/15), 180 So.3d 308.

In the case before us, because we have a complete record on appeal, and due to the jury’s reaching clearly inconsistent answers in its verdict form, we find de novo review to be the appropriate remedy. Applying de novo review, the appellate court independently views the record, without granting any deference to the trial court’s findings, to determine the preponderance of the evidence. Banks v. Children’s Hosp., 2013-1481 (La. App. 4 Cir. 12/17/14), 156 So.3d 1263, 1272. Where, however, the legal error does not affect all the jury’s findings, the appellate court should confine its de novo review to only those findings that have been interdicted by the error. Id. at 1272.

Here, the dialogue at the bench reflects the difficulties encountered during trial when considering the proposed jury charge and verdict form, and it is unclear if there was sufficient objection to, or argument for, any proposed jury interrogatory. Nor is the trial court’s ruling sufficiently precise, as we note from a portion of the following bench conference, which pertained to the jury interrogatories regarding the damages: ■ ■

MR. SOILEAU: So [the jury] could award some damages, not all, and award some lost chance damages or they could award all damages and no lost chance.
MR. KING: Nobody, said you can do that. It’s your claim the damages are what- the damages are. But it’s per claim, not- per damage aspect that the Court.said you can go back and forth. Too much jury confusion there, or possibility for it. ...
THE COURT: I see both arguments on that. And it’s interesting, I haven’t seen anything on that ....
I mean, a lot of it overlaps, and that’s the problem ....
IfiLook, this is a tough one for the jury. It’s not a cut and dry deal. It’s a tough one for the jury to figure out .... Here’s my problem. I can only lead a horse to water, man, you know. I would think—and'- we got 12 people, and they’re reading this and they’re figuring it out, they can do it. I’m sure as heck hoping. If not, we got problems.

Trial transcript, Record pp. 826-9. (Emphasis added).

Whether the interrogatories were correctly used, either from a substantive or procedural standpoint, is, however, of no moment in light of our precise finding. The only justifiable conclusion that this court can render is patently clear, especially since the jury’s error was left insufficiently corrected via post trial motion. This fact remains—the answers to jury interrogatory numbers one and six, the only interrogatories answered, are conflicting and cannot form the basis for any proper result.

Notably, in this case, the legal error in the verdict form did not affect all .of the jury’s findings, i.e., the jury’s determination whether Roger suffered a lost chance of a betteroutcome—the record clearly supports that. ■

The problem lies with the.determination of the monetary amount of damages for that lost chance—the jury was not given adequate instructions on the verdict form (or instructions in the jury charge) on how to quantify the damages caused by the breach. At the argument on the Burch-fields’ motion for JNOV, the trial judge acknowledged not knowing precisely what the jury’s intént was regarding the amount of damages. Considering the record and all of the evidence before the jury, the uncertainty is understandable. Was the jury’s award of $ 680,000.00 an attempt to compensate the Burchfields for Roger’s past medicals, which he incurred |7because Dr. Wright’s actions caused his lost chance of a better outcome? Was any portion of the award to compensate Roger for his lost wages or the emotional distress caused by the heart transplant? Or, was any portion of the “lump sum” intended to compensate Carol for her loss of consortium claim? In this particular case, there is no way of knowing the precise answers to these questions based on the record before us; thus we conclude that the verdict form was flawed as a matter of law, leading to the confusing lump sum awarded by the jury and eventually modified by the trial judge.

In calculating damages for a lost chance claim, the factfinder is to focus on the chance lost on account of the malpractice as a distinct compensable injury and to value the lost chance as a lump sum award on all the evidence in the record, as is done for any other item of general damages. Hargroder v. Unkel, 39,009 (La. App. 2 Cir. 10/29/04), 888 So.2d 953, 957, writ denied, 2004-2908, 2004-2909 (La. 02/04/05), 893 So.2d 874, citing Smith v. State, Dept. of Health & Hosps., 1995-0038 (La. 06/25/96), 676 So.2d 543. In order to value the claim of loss of a chance of a better outcome, the factfinder should make a subjective determination of the value of that loss, fixing the amount of money that would adequately compensate the claimant for that particular cognizable loss. Smith v. Department of Health & Hosps., supra at 548 (emphasis added).

The parties concede that there is no jurisprudence precisely on the point at issue in this case; however, in calculating an award for lost chance of a better outcome, a jury may consider what otherwise would be elements of special damages (for instance, lost wages and past, present, and future 18medical expenses). See, Bianchi v. Kufoy, 2010-607 (La. App. 3 Cir. 12/08/10), 53 So.3d 530. Moreover, an award for lost chance encompasses a “lump” of damages—a “lump” connoting a number of items taken together—that otherwise would have been delineated in damages for malpractice. Thus, logically, it follows if that is the case (i.e., damages for lost chance are a “lump”), then such an award may include special damages to adequately compensate a patient, and that “lump sum” damages should not be limited to the cap for general damages established by the : Medical Malpractice Act.

In Bianchi, supra, the trial court had determined the physician had breached the standard of care, but concluded Bianchi failed to prove causation. On appeal, the Third Circuit concluded that Bianchi had proved the physician’s breach caused Bian-chi a lost chance of a better outcome. Of significance to the case sub judice was the Third Circuit’s award to Bianchi and his wife to “adequately compensate the plaintiffs for their general and special damages.” Id. at 536 (Emphasis added).

Here, in reducing the jury’s verdict award, the trial court reasoned that the lost chance damages were simply general in nature and subject to the medical malpractice cap ($ 400,000.00 after deducting the settlement amount), thus precluding the Burchfields from awards for -Roger’s past medical bills, his future medical care, and lost wages. This determination was in error. But for Dr. Wright’s breach of the standard of care, Roger would not have experienced the damage he did—a resultant heart transplant. Excluding the sole expert retained by the PCF, all of the medical expert evidence was clear and consistent: more probably than not, Roger would Rhave received a heart bypass instead of a heart transplant had Dr. Wright not failed to review the very pre-operative tests he ordered.

The jury’s factual finding on Roger’s lost chance was supported by the testimony of Dr. Dean Griffen, a member of the MRP and a surgeon. At trial, he reiterated the panel’s finding that Dr. Wright had caused the damage to Roger, and Roger would have most probably been a candidate for bypass surgery. Notably, Roger’s stable condition prior to the gallbladder surgery made him a stronger candidate for the bypass surgery. Dr. Griffin characterized Dr. Wright’s omission and the surgery as “the straw that broke the camel’s back.”

Dr. Shelley Hall also agreed that Roger suffered a lost chance of a better outcome. Dr. Hall was chief of Baylor’s cardiac transplant team that worked on Roger. She believed Roger would have been a candidate for bypass surgery had the pre-op tests been reviewed, and Dr. Hall specifically stated she believed his blockages could have been bypassed. Notably, as a transplant doctor, Dr. Hall testified to Roger’s prognosis as a transplant patient, explaining that heart transplant patients have an average survival rate of 13 years and suffer complications and risks as a result of the required immunosuppressant medications prescribed. According to Dr. Hall, such patients are subject to higher risk for other diseases, such as skin cancer, kidney disease, and diabetes—necessitating even further medical attention.

Other physicians who treated Roger, Dr. Richard Morrison (a pulmonologist) and Dr. Ray Smith (a cardiologist), agreed that had Dr. Wright reviewed the pre-op tests and postponed the gallbladder surgery, Roger would have had a better outcome. Finally, Dr. Brijesh Patel, a cardiologist (but not one of Roger’s treating physicians), reviewed Roger’s [10record and opined that Roger would have been a candidate for heart bypass, which would have been a better outcome than a heart transplant.

This record is replete with evidence regarding the damages caused to Roger and Carol as a direct result of Dr. Wright’s breach of the standard of care which contributed to Roger’s lost chance. It is completely illogical to conclude that the Burch-fields were indeed damaged by Dr. Wright’s actions, but then not completely compensate them for their damages proved at trial directly attributable to the lost chance.

The jury was presented testimony regarding Roger’s past medical bills that were a result of his heart transplant, which totaled $ 692,850.64. This was uncontested. The jury also heard Roger’s testimony regarding the medications he is required to take as a result of his transplant— $ 1,718.78 in monthly expenses. Of those medications, the ones directly related to his transplant (anti-rejection medication) total $ 1,202.77 a month. In addition to the distinct monetary expense of Roger’s medications, the jury also had evidence of the substantive future medical protocol necessary for heart transplant recipients—Roger will be subject to medical treatment and resulting expenses for the rest of his life as a result of the lesser outcome. See La. R.S. 40:1231.3.

The jury also heard testimony regarding Roger’s future wages. In 2012, the year prior to the transplant, Roger had reported wages from International Paper of $ 82,170.00, as evidenced by his 2012 federal income tax return. Roger testified he was unable to return to his same job due to its strenuous nature, and he also explained his plan to retire in the year 2020. Using his reported wages from 2012 along with his testimony regarding his hi plan to continue working through 2019, we determine Roger had lost wages from 2014 through 2019, for a total of $ 493,020.00.

Finally, we affirm that portion of the trial court’s judgment that awarded “general damages” in the amount of $ 400,-000.00 to Roger and Carol. The amounts obtainable and awarded subject to the cap for the past and future physical and emotional damages of the parties are profound. Even on the “cold record,” it is evident that Roger was traumatized, physically and emotionally, over this incident. Roger went to the hospital for a fairly routine procedure, trusting that the physician would adhere to even the minimal standard of care. However, within hours, his life was changed forever. Roger entered the hospital as a vital, music-loving, motorcycle-riding, hard-working man—immensely proud of his work history. He left Baylor’s heart unit a heart transplant recipient with a permanent cloud of future medical treatment forever to follow him. Roger and Carol had a planned date of earned retirement, a reward for years of hard work and wise financial stewardship. But this date was accelerated due to another’s mistake. Roger’s way of life, as he had known it, and his anticipated future life has been taken away. Further, the loss of consortium sustained by both is virtually indescribable.

In this case, the breach of the standard of care cost Roger his heart, and certainly he was not granted any favors by Dr. Wright’s malpractice.112Instead, the malpractice was the direct cause of his lost chance of a better outcome, and, therefore, he deserves just compensation in the form of general and special damages.

Conclusion

For the foregoing reasons, we affirm the trial court’s judgment in favor of Carol and Roger Burchfield, as it pertains to the determination that Dr. Forrest Wright’s breach of the standard of care caused Roger Burchfield the loss of a better outcome. We amend the amount of damages awarded by the trial judge to award $ 400,000.00 in general damages, including past and future pain and suffering, as well as Carol’s loss of consortium. Further, we award special damages for the following: $ 692,-850.64 in past medical bills; future medicals to be-awarded pursuant to La. R.S. 40:1231.3; and, lost wages in the amount of $ 493,020.00, all of which have been indisputably proven. All costs of this appeal are to be paid by the Patient’s Compensation Fund.

AFFIRMED, AS AMENDED, AND RENDERED.

Exhibit “A”

APPLICATION FOR REHEARING

Before WILLIAMS, MOORE, STONE, COX and BLEICH, JJ.

Rehearing denied.

MOORE, J., would grant rehearing.

      . The amount reflected the $ 100,000.00 settlement paid by Dr. Wright.

      . In their first assignment of error, the Burch-fields argue the trial court erred in not using the Louisiana Supreme Court’s suggested jury charges. We take notice of that claim, and without determining the trial court’s action was in error, we believe the action was harmless in this case.

      . Cf. the amount awarded herein, infra, in the amount of $ 692,850.64.

      . Although there was argument by the PCF that Roger could potentially perform some other form of work, there was no direct evidence of such work or the amount he would earn to mitigate his total lost wages.

      . Notably, this court vehemently disagrees that Dr. Wright's malpractice somehow amounted to a favor to Roger. Dr. Wright certainly did not save Roger’s life by failing to read the very pre-operative reports he ordered, a breach of the standard of care directly causing Roger’s lost chance of a better outcome.

      . The assignment of error raised by the PCF in its answer to appeal is pretermitted in light of our conclusion herein.


author: WICKER, J.

text:
    STATE of Louisiana v. Matthew C. CARROLL
    NO. 17-KA-17
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Andrea F. Long, Seth W. Shute
    COUNSEL FOR DEFENDANT/APPELLANT, MATTHEW C. CARROLL, Gwendolyn K. Brown

      Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
   WICKER, J.

|! After filing an application for post-conviction relief, defendant, Matthew C. Carroll, received leave to file this out-of-time appeal arising from his guilty plea to one count of obscenity in violation of La. R.S. 14:106 and his stipulation to his status as a second felony offender pursuant to La. R.S. 15:529.1. Defendant’s appointed counsel has filed an appellate brief pursuant to Anders v. California and has further filed a motion to withdraw as counsel of record. Defendant has not submitted a pro se supplemental brief. For the following reasons, we grant defense counsel’s motion to withdraw and affirm defendant’s conviction and sentence.

STATEMENT OF THE CASE

On July 18, 2014, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant with one count of obscenity in violation of La. R.S. 14:106. On July 21, 2014, the district court arraigned defendant, and defendant pled not guilty.

On October 22, 2014, defendant withdrew his plea of not guilty and pled guilty as charged. Prior to entering his guilty plea, defendant indicated that his attorney had advised him of his right to a trial by jury or by the Court alone, his right to confront his accusers and cross-examine witnesses, and his right against self-incrimination, as required by Boykin v. Alabama. Both in open court and by signing the “Acknowledgment of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty” form, defendant acknowledged that he understood these rights and that, by entering a plea of guilty, he was waiving these rights.

Defendant’s trial counsel, both in open court and by his signature on the waiver of rights form, also affirmed that he informed defendant of these rights and that he was satisfied that defendant was entering his plea of guilty knowingly, | ¿willingly, intelligently, and voluntarily, knowing all of the consequences. Thereafter, the district court accepted defendant’s plea as knowing, intelligent, free, and voluntary. After setting forth the plea agreement in the record, the district court sentenced defendant in accordance with the plea agreement to three years imprisonment at hard labor and to pay fees of $150 to the Indigent Defender Board and $150 to the Jefferson Parish Sheriffs Office.

On the same date, pursuant to its plea agreement with defendant, the State filed a multiple offender bill of information alleging defendant was a second felony offender. After the district court reviewed with defendant.the rights he would waive by pleading guilty to the .multiple offender bill, defendant pled guilty to the multiple offender bill, and the district court accepted his guilty plea as knowingly, intelligently, freely, and voluntarily made. In accordance with the plea agreement, the district court vacated defendant’s original sentence for his violation of La. R.S. 14:106, resen-tenced defendant as a second felony offender to five years imprisonment at hard labor without benefit of probation or suspension of sentence, and re-imposed the fees of $150 to the Indigent Defendant Board and $150 to the Jefferson Parish Sheriffs Office.

On September 14, 2016, defendant filed a Uniform Application for Post-Conviction Relief, seeking an out-of-time appeal. On September 19, 2016, the | ^district court issued an order granting defendant an out-of-time appeal. The instant appeal followed.

FACTS

Because defendant’s conviction was the result of a guilty plea, the facts underlying the crime of conviction were not fully, developed in the record. According to the probable cause affidavit, on June 19, 2014, defendant “was observed by a female jogger at Lafreniere Park masturbating alongside the jogging trail.” When defendant entered his guilty plea on October 22, 2014, defendant admitted that, On June 19, 2014, he was in a public place masturbating.

ANDERS BRIEF

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

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

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

DISCUSSION

Defendant’s appellate counsel asserts that, after a detailed review of the record, she can find no non-frivolous issues to raise on appeal. She submits that prior to entering his guilty plea, defendant was fully informed, by both his trial counsel and the trial court, of the legal consequences of pleading guilty. She notes that although the trial court did not directly advise defendant that he had the right to remain silent at trial, the court did confirm with defendant’s trial counsel that he had reviewed defendant’s rights with him, including his right against self-incrimination. She also asserts that defendant acknowledged that he had signed the waiver of rights form, informing him that by pleading guilty his right against self-incrimination would be waived. Appellate counsel avers the trial court explained the sentence that it would impose if defendant’s plea was accepted, and that pursuant to the plea agreement, the agreed upon sentence was imposed. She further maintains defendant was properly advised of his multiple offender rights prior to his stipulation to the multiple bill and of the specific enhanced sentence he | swould receive as a result of his stipulation. Appellate counsel notes that defendant was resentenced in accordance with the plea agreement and that defendant failed to object to his sentences, barring him from challenging them on appeal. Because defendant’s appellate counsel can find no non-frivolous issue for appeal, counsel requests that this Court grant her motion to withdraw.

The State agrees and highlights that, although defendant filed pre-trial motions before pleading guilty, the record does not reflect that any rulings could form the basis of an issue on appeal and defendant specifically acknowledged when he entered his guilty plea that he was waiving his rights to allege an illegal arrest, illegal search and seizure, illegal confession, and illegal lineup. Accordingly, the State urges this Court to grant defense counsel’s request to withdraw as counsel of record.

This Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until March 1, 2017 to file a pro se supplemental brief. Nevertheless, defendant did not timely file a pro se brief with this Court.

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

As reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him. He attended his arraignment, his guilty plea proceeding, his sentencing, and his multiple bill proceeding, including his stipulation and his enhanced sentencing. As such, defendant’s presence does not present any issues that would support an appeal.

Further, defendant pled guilty as charged to obscenity and also admitted to being a second felony offender as alleged in the multiple bill. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading |»up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 926 So.2d at 664. Additionally, an unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing. State v. Schaefer, 97-465 (La. App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

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

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm when it is not entered freely and voluntarily, when the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that plea bargain is not kept. Id. A guilty plea will not be considered valid unless the plea was a free and voluntary choice on the part of the defendant. State v. Nuccio, 454 So.2d 93, 104 (La. 1984). Under Boykin, the decision to plead guilty will not be considered free and voluntary unless, at the very least, the defendant was advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. Id. The waiver of those rights must be on the record, unequivocal, express and knowing, and free and voluntary. Id.; see State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85, 89-90 (1971).

|7Our review of the record reveals no irregularities in defendant’s guilty plea that would render it constitutionally infirm. First, the record shows that defendant was aware he was pleading guilty to obscenity, a violation of La. R.S. 14:106. Defendant also acknowledged that he was entering this plea because he was in fact guilty of this crime and that no one had used any’force, intimidation, coercion, or promise of reward in order to induce him to plead guilty. Concerning defendant’s Boykin rights, the district court personally advised defendant of his right to a judge or jury trial and his right to confrontation, but the court did not directly advise defendant of his right against self-incrimination. While it is preferable for the trial judge to conduct a colloquy with the defendant to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea. State v. Halsell, 403 So.2d 688, 690 (La. 1981). Whether a plea is knowing and voluntary is determined by the entire record and not just by certain magic words used by the trial judge. State v. Hinson, 01-1548 (La. 9/14/01), 797 So.2d 32, 32-33 (per curiam). Further, a written form containing a waiver of rights is a part of the record, and it can be examined to determine the free and knowing nature of the plea. State v. Dunn, 390 So.2d 525, 526-27 (La. 1980). Defendant’s plea colloquy along with a well-executed waiver of rights form may constitute a sufficient affirmative showing on the record that defendant knowingly waived his rights. State v. Hebert, 02-884 (La. App. 5 Cir. 12/30/02), 838 So.2d 30, 31-34.

Although the district court did not directly advise defendant of his right against self-incrimination, the transcript of the plea colloquy reflects that the district court confirmed with defendant’s trial counsel that he had advised defendant of his right to trial by judge or jury, his right •to confrontation, and his right against self-incrimination. Defendant’s trial counsel, both in open court and by his signature on the waiver of rights form, affirmed that he informed defendant |sof his right to trial by judge or jury, his right to confrontation, and his right against self-incrimination and that he was satisfied that defendant was entering his plea of guilty knowingly, willingly, intelligently, and voluntarily, knowing all of the consequences. Both in open court and by signing the waiver of rights form, defendant acknowledged that he understood these rights and' that, by entering a plea of guilty, he was waiving these rights, In open court, defendant also acknowledged his signature on the waiver of rights form and conceded that the district .court had given him every opportunity to ask questions about the consequences regarding his plea of guilty and that he was completely satisfied with the explanations of his attorney and the trial judge. After review of the entire record, we find that the plea colloquy along with the well-executed waiver of rights form constitute a sufficient affirmative showing on the record that defendant was advised of his rights, that he understood them, and that he made a knowing and intelligent waiver of them. See State v. Nelson, 10-760 (La. App. 5 Cir. 3/29/11), 63 So.3d 280, 283-84; State v. Cole, 04-615 (La. App. 5 Cir. 3/1/05), 900 So.2d 15, 23-24.

Defendant was also informed during the colloquy and by means of the waiver of rights form of the sentencing range for the offense as well as the actual penalty that would be imposed upon acceptance of his guilty plea. Moreover,' he was informed that his guilty plea could be used to enhance a penalty for any future conviction. After his colloquy with defendant, the trial ■judge accepted defendant’s guilty plea as knowingly, intelligently, freely, and voluntarily made. Based on our | preview of the-entire record, we find that defendant’s guilty plea was'made knowingly and voluntarily, and we detect no non-frivolous issues for appeal.

Moreover, a review of the multiple offender proceeding reveals that defendant was sufficiently advised of his- multiple offender- rights. The multiple bill waiver of rights form, in conjunction with the colloquy between the trial judge and defendant, indicates that defendant understood that by stipulating -to the allegations in the multiple offender bill he was giving up his right to “plead not guilty,” his right to a hearing and to force the State to prove the elements of La. R.S. 15:529.1, and his right to remain silent throughout the hearing. The record contains the “Waiver of Rights—Plea of Guilty Multiple Offender—La. R.S. 15:529.1” form. The form reflects the signatures of defendant, defendant’s counsel, and the district court judge. During the multiple bill proceeding, defendant’s trial counsel represented to the court that he had reviewed with defendant both the State’s multiple offender bill of information and the waiver of rights form for the multiple offender bill. Moreover, the transcript reflects that defendant affirmed that he was satisfied with his attorney’s and the court’s efforts to explain the rights he was waiving and consequences of his plea.

Defendant was also advised that the sentencing range for his enhanced sentence on his conviction for obscenity was between three and six years imprisonment at hard labor. However, the waiver of rights form and the district court incorrectly advised defendant of the minimum sentence he could receive as a second felony offender for his obscenity conviction. La. R.S. 15:529.1(A)(1) provides that:

If the second felony is such that upon.a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.

| mDefendant’s conviction for obscenity was punishable by imprisonment “with or without hard labor, for not less than six months nor more than three years.” La. R.S. 14:106(G)(1). Accordingly, the correct minimum sentence on defendant’s enhanced sentence for obscenity was actually one and one-half years and not three years, as advised by the trial court. Nevertheless, although defendant was, incorrectly advised regarding the minimum sentence he could face, defendant was correctly advised as to the five-year sentence that would be imposed, and defendant agreed to the enhanced sentence. Thus, this error does not present a non-frivolous issue for appeal. See State v. Breaux, 15-79 (La. App. 5 Cir. 6/30/15), 171 So.3d 1234, 1241.

Additionally, defendant indicated that he understood all the possible legal consequences of stipulating to the multiple bill and wished to stipulate to being a second felony offender. He indicated that he was satisfied with the way his attorney and the court had handled his case and that he had not been forced, coerced, or threatened into stipulating to -the múltiple bill. His stipulation was accepted by the trial judge as knowingly, intelligently, freely, and voluntarily made. By stipulating to the multiple bill, defendant waived his right to a hearing and any possible non-jurisdictional defects were also waived. Thus, defendant is barred from asserting on appeal that the State failed to produce sufficient proof at the multiple bill hearing when he waived the hearing. Schaefer, 704 So.2d at 304.

Lastly, defendant’s sentences do not present issues for appeal. His original sentence and his enhanced sentence fall within the sentencing ranges prescribed by statute. See La. R.S. 14:106(G)(1); La. R.S. 15:529.1(A)(1). Further, defendant’s original and enhanced sentences were imposed pursuant to, and in conformity with, the plea agreements. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Moore, 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46; State v. Washington, 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Likewise, this Court has consistently recognized that La. C.Cr.P, art. 881.2(A)(2) precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Robinson, 15-661 (La. App. 5 Cir. 2/24/16), 186 So.3d 1269, 1272 (citing State v. Bolton, 02-1034 (La. App. 5 Cir. 3/11/03), 844 So.2d 135, 142, writ denied, 03-1159 (La. 11/14/03), 858 So.2d 417); State v. Dickerson, 11-236 (La. App. 5 Cir. 11/15/11), 80 So.3d 510, 520-21.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis' that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counseFs assertion, we grant defendant’s appellate counsel’s motion to withdraw as attorney of record.

ERRORS PATENT

Defendant requests errors patent review. This Court routinely reviews the record for errors patent regardless of whether the defendant makes such a request. La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La. App. 5 Cir.1990). Our review in this case reveals no errors patent.

CONCLUSION

In accordance with Anders and Jyles, we have performed a thorough review of the record and have confirmed the statements by counsel. Our review of the record reveals no non-frivolous issues defendant could raise on appeal. Accordingly, we affirm defendant’s conviction and sentence, and we grant appellate counsel’s motion to withdraw.

AFFIRMED

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

      . Prior to filing this application for post-conviction relief, defendant filed a motion for production of documents on December 9, 2014, which the district court denied in part on December 19, 2014, ordering that defendant be provided with the transcript of his Boykin colloquy and sentencing, On May 29, 2015, defendant filed a "Petition for Writ of Habeas Corpus Ad Subjiciendum,” alleging ineffective assistance of counsel and attacking his multiple offender conviction, as uninformed and constitutionally defective, On June 3, 2015, the district court issued an order again directing that defendant be provided with a copy of his Boykin colloquy and sentencing transcripts, On September .14, 2015, defendant filed a "Uniform Application for Post-Conviction Relief,” alleging ineffective assistance of counsel. On September 23, 2015, the district court denied this application as premature and directed defendant to seek an out-of-time appeal. After defendant sought this Court’s supervisory review of this order, this Court denied writs on March 30, 2016, finding the district court did not err in denying defendant post-conviction relief as premature. State v. Carroll, 16-148 (La. App. 5 Cir. 3/30/16). Thereafter, on September 14, 2016, defendant filed the instant "Uniform Application for Post-Conviction Relief,” seeking an out-of-time appeal.

      . The record contains the waiver of rights form entitled "Defendant’s Acknowledgment of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty.” Defendant did not place his initials next to any of the rights listed on the form. Nevertheless, the form was signed at the bottom by defendant, defendant’s counsel, and the trial judge. There has never been a requirement that á defendant initial each line in a plea form. State v. Woods, 09-399 (La. App. 5 Cir. 3/9/10), 38 So.3d 391, 405.


author: GRAVOIS, J.

text:
    STATE of Louisiana v. Arturio RODRIGUEZ
    NO. 17-KA-36
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, James W. Myers
    COUNSEL FOR DEFENDANT/APPELLANT, ARTURIO RODRIGUEZ, Bertha M. Hillman
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois
   GRAVOIS, J.

| defendant, Arturio Rodriguez, appeals his conviction and sentence resulting from a guilty plea to carnal knowledge of a juvenile. His appointed appellate counsel has filed a brief in conformity with the procedure outlined in State v. Bradford, 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed appellate counsel requests permission to withdraw as counsel of record for defendant. After thorough review of the record, we agree with counsel’s assessment of the case and accordingly grant the motion to withdraw. We also affirm defendant’s conviction and sentence.

PROCEDURAL HISTORY

On April 27, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant, Arturio Rodriguez, with carnal knowledge of a juvenile in violation of La. R.S. 14:80. Defendant pled not guilty at his arraignment on May 5, 2011. On June 3, 2011, defendant filed omnibus motions that were set for a hearing, but were never heard. On August 12, 2014, defendant withdrew his not guilty plea and pled guilty as charged. That same date, the trial court sentenced defendant to ten years imprisonment at hard labor, to run concurrently with any other sentence defendant might be serving. Defendant was bordered to register as a sex offender for fifteen years and to comply with the requirements of registration and notification pursuant to La. R.S. 15:541.

On June 27, 2016, defendant filed a uniform application for post-conviction relief and requested an out-of-time appeal in district court case number 12-1863, arguing that he was denied a direct appeal. On June 29, 2016, the trial court granted defendant an out-of-time appeal in district court case number 12-1863. Thereafter, on November 10, 2016, upon motion of appellate counsel and after review of the record in 16-KA-606, this Court discovered that defendant’s petition requesting an out-of-time appeal in district court case number 12-1863 also included his instant conviction for carnal knowledge of a juvenile. Accordingly, this Court construed defendant’s petition filed in district court case number 12-1863 to be a timely request for an out-of-time appeal in the instant matter and ordered that the trial court consider and rule, within twenty days of its order, on defendant’s request for an out-of-time appeal on the carnal knowledge of a juvenile conviction. On November 15, 2016, the trial court granted defendant’s motion for an out-of-time appeal. Defendant’s appeal follows.

FACTS

Because defendant pled guilty, the underlying facts were not fully developed at trial. Nevertheless, the State alleged in the bill of information that on or between May 1, 2010 and October 1, 2010, defendant violated La. R.S. 14:80 in that he did commit carnal knowledge of a known juvenile (D.O.B. 9-18-1994), by having consensual vaginal/penile intercourse with the juvenile, who was thirteen years of age or older but less than seventeen years of age, with defendant being nineteen years of age or older, when the victim was not defendant’s spouse. Additionally, during the colloquy, defendant stated that he had sex with a juvenile ex-girlfriend when he was twenty years old in Jefferson Parish. He estimated that the victim was fifteen or sixteen years old. The State provided that it would have proved at | ¡¡trial that defendant was twenty years old and that the victim was fifteen years old, having a date of birth of September 18, 1994.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford, supra, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, supra, and State v. Jyles, supra, appointed counsel requests permission to withdraw as counsel of record for defendant.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by ⅛ brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every mer-itless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the |4trial record and considered whether any ruling made' by the trial court, subject to the contemporaneous objection rule, had a significant, ádverse impact on shaping the evidence presented to the jury for its consideration.” Id.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant appellate counsel’s motion to withdraw and affirm the defendant’s Conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

ANALYSIS

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel provides that the trial court fully informed defendant of the legal consequences of changing his plea to ■guilty and explained to defendant each of the rights necessary to ensure a knowing and intelligent waiver of those rights. Counsel avers that the trial court advised defendant that he could receive a fine of not more than $5,000.00 and a sentence of ten years at hard labor to run concurrently with any other sentence he was serving. Counsel contends that defendant’was sentenced pursuant to the plea agreement and received ten years at hard labor. Counsel provides that defendant was advised his conviction could not be set aside under La. C.Cr.P. art. 893, and defendant is now restricted by law from appealing his sentence.

Appellate counsel has filed a motion to withdraw as counsel of record for defendant which states that she has made a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal. | ^Counsel asserts that she has notified defendant of the filing of this motion and has advised defendant of his right to file a pro se brief in this appeal. Additionally, this Court notified defendant by certified mail that an Anders brief had been filed and that he had until March 8, 2017 to file a pro se supplemental brief. As of the date of the case’s submission for decision, defendant had not filed a brief with this Court.

The State filed a response to defendant’s appeal, agreeing that counsel has provided a diligent and complete procedural history of the case and found no non-frivolous issues to be raised on appeal. It submits that counsel has conformed with the procedures set forth in. Anders and Jyles. It contends that counsel’s motion to withdraw should be granted, and it believes that there are no discoverable patent errors on the face of the record.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the offense charged. It also sufficiency identified defendant and the crime charged. See La. C.Cr.P. arts. 464-466. As reflected by the minute entries and the commitment, defendant appeared at each stage of the proceedings against him. As such, defendant’s presence does not present any issues supporting an appeal.

Further, defendant pled guilty as charged to felony carnal knowledge of a juvenile in violation of La. R.S. 14:80. When a defendant .pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Defendant entered an unqualified guilty plea, and therefore, all non-1 ¿jurisdictional defects are waived. No rulings were preserved for appeal under State v. Crosby, 338 So.2d 584 (La. 1976).

A review of the record reveals no irregularities in defendant’s guilty plea. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

The record shows that defendant was aware he was pleading guilty to carnal knowledge of a juvenile in violation of La. R.S. 14:80. Defendant was properly advised of his Boykin rights. In the waiver of rights form, defendant placed his initials next to a provision indicating that his attorney had advised him of his right to a trial by jury, to confront his accusers, and his privilege against self-incrimination, indicating that he understood he was waiving these rights. During the colloquy with the trial judge, defendant was again informed of these rights. During the colloquy, defendant indicated that he understood that he was waiving these rights.

Defendant stated that he had discussed the matters fully with his attorney and was satisfied with her representation of him. He denied being under the influence of alcohol or any drugs and reported that he was twenty-four years old. He stated that he had completed eleventh grade and knew how to read and write. Defendant acknowledged that he had reviewed and read the waiver of rights form |7with his attorney, understood what he had read, and that his signature appeared on the bottom of the form. He was advised of his right to an attorney, and his right to appeal upon conviction or to appeal his sentence if it was not imposed pursuant to the plea agreement. The trial judge explained that if defendant pled guilty, he was waiving his right to assert any allegation of defect. Defendant suggested that he understood this.

Defendant specified that he wanted to plead guilty and acknowledged that by doing so, he was admitting that he committed the crime to which he was pleading guilty. Defendant indicated that he believed the plea was in his best interest. Defense counsel stated that she believed that the plea was knowingly, intelligently, freely, and voluntarily entered by defendant and was in his best interest.

Defendant indicated that he understood the nature of the charges against him and the possible penalties and confirmed that neither he nor his family had been forced, intimidated, coerced, threatened, or promised anything for entering his guilty plea. The waiver of rights form reflects that the maximum sentence which the court could impose was ten years with or without hard labor and a $5,000.00 fine. During the colloquy, defendant was informed of the penalty carried by a conviction of carnal knowledge of a juvenile. Specifically, he was informed that felony carnal knowledge of a juvenile was punishable by a fine of not more than $5,000.00, or imprisonment, with or without hard labor, for not more than ten years, or both, and that his conviction would not be set aside or his prosecution dismissed in accordance with La. C.Cr.P. art. 893. Therefore, defendant was advised of the maximum penalty.

|sThe waiver of rights form reflects that defendant would receive “10 yrs concurrent w/ 12-1863 w/ CTS” if the court accepted his plea of guilty. Thus, the waiver of rights form appears silent as to whether defendant’s sentence would be served at hard labor. However, defendant was advised regarding the actual penalty that would be imposed upon acceptance of his guilty plea. During the colloquy, the trial judge advised defendant that if the court accepted his plea of guilty, he would be sentenced to serve ten years at hard labor with the Sentence to run concurrently with any other sentence defendant was serving. The trial judge stated that he was convinced that defendant understood the nature of the charge against him and the possible penalty, found a basis for the plea, and accepted defendant’s plea as knowingly, intelligently, freely, and voluntarily entered, in compliance with La. C.Cr.P. art. 556.1(A)(1).

Defendant’s sentence does not present issues for appeal. His sentence falls within the sentencing range prescribed by the statute. See La. R.S. 14:80. Further, defendant’s sentence was imposed pursuant to and in conformity with the plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Moore, 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46; State v. Washington, 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. As stated, in the waiver of rights form, defendant was advised that his sentence would be “10 yrs concurrent w/ 12-1863 w/ CTS.” Prior to accepting defendant’s guilty plea, the trial court informed defendant that he would receive a ten-year sentence at hard labor concurrent with any other sentence he was serving. The trial judge subsequently imposed the sentence as advised. The trial judge failed to specifically order the instant sentence to run concurrently, as specified in the waiver of rights form, with the sentence in district court case number 12-1863 when imposing the sentence. Nonetheless, the trial judge stated Iflthat defendant’s sentence was to be served -concurrently with any' other sentence défendant would be serving. There-' fore, we find that defendánt was sentenced in accordance with the plea agreement.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings- and cannot identify: any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion, appellate counsel’s motion to withdraw as attorney of record for defendant is hereby granted.

ERRORS'PATENT REVIEW '

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). No errors patent were discovered.

CONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are affirmed. Appellate counsel’s motion to withdraw as counsel for defendant is granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      . The bill of information alleged that the offense occurred on or between May 1, 2010 and October 1, 2010, and defendant pled guilty as charged. During this period, La. R.S. 14:80 was amended to include provisions regarding the sale of personal property used in the commission of the offense. See La. R.S. 14:80(D)(2)(a) and (b); La. Acts. 2010, No, 763, § 1, effective August 15, 2010. These provisions are inapplicable to the instant matter. Moreover, the waiver of rights form indicates that the offense occurred on May 1, 2010, which was before the effective date of the amendment. Additionally, the trial court's colloquy with defendant reflects the date of the offense was on or about May 1, 2010.

      . Also on August 12, 2014, defendant entered guilty pleas and was sentenced in district court case number 12-1863 to two counts of forcible rape and two counts of aggravated burglary. Defendant has also appealed those convictions, which have been docketed in this Court as case number 16-KA-606.

      . When informing defendant of the provisions of the carnal knowledge of a juvenile statute, the trial judge stated that the offense occurred on or about May 1, 2010. The waiver of rights form reflects that the offense occurred on May 1, 2010.

      .The record indicates that defendant filed several omnibus motions, which do not appear to have been ruled upon prior to the time defendant entered his guilty plea. Nevertheless, defendant waived any argument regarding these outstanding motions by pleading guilty without raising the issue. See State v. Corzo, 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

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

      . During the colloquy, defendant also indicated that he reviewed the Notification of Sex Offender document with his attorney, discussed the requirement that he register as a sex offender for fifteen years for his conviction of carnal knowledge of a juvenile, and signed the document.

      . In North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the Court held that "[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” Although defendant agreed that the plea was in his best interest, he also admitted his guilt in this matter. This is therefore clearly not a guilty plea made pursuant to Alford.