author: MURPHY, J.

text:
    GREEN TREE SERVICING, LLC v. Carolyn EDWARDS, Brenda Edwards Mays, August Edwards, Kenneth Edwards, Sharon Edwards Wright, Ralph Edwards, Wayne Edwards, Elton Edwards, Terry Edwards Jackson, Emile Edwards, Timothy Edwards, and the United States of America
    NO. 17-CA-214
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, DITECH FINANCIAL, LLC FKA GREEN TREE SERVICING, LLC, Rad-er Jackson, Cris R. Jackson, Tabitha Man-gano
    COUNSEL FOR DEFENDANT/APPELLANT, CAROLYN EDWARDS, Anthony Sartorio
    Panel composed of Judges Jude G. Gravois, Robert M. Murphy, and Stephen J. Windhorst
   MURPHY, J.

|,Defendant, Carolyn Edwards (“Carolyn”), has brought this appeal seeking reversal of a default judgment rendered against her and in favor of plaintiff, Ditech Financial LLC formerly known as Green Tree Servicing LLC (hereinafter “Green Tree”), in Green Tree’s “Suit on Promissory Note and to Enforce Mortgage and for Declaratory Judgment.” Carolyn also seeks reversal of an In Rem Judgment and Declaratory Judgment entered against the property located at 1311 Cook Street, Gretna, Louisiana on summary judgment. For the following reasons, we dismiss the appeal, in part, and affirm, in part.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

By cash sale deed, dated June 6, 1957, and recorded in the conveyance records of Jefferson Parish at Instrument Number 101872, Conveyance Book 426, Page 128, Rosabell Sullivan Edwards and her husband, August Edwards, acquired the following described immovable property located at 1311 Cook Street, Gretna, Louisiana (hereinafter “the-Property’):

TWO A CERTAIN PIECE QF PORTION OF GROUND, TOGETHER WITH ALL THE BUIDLINGS AND IMPROVEMENTS THEREON, AND ALL OF THE RIGHTS, WAYS, PRIVILEGES, SERVITUDES, APPURTENANCES AND ADVANTAGES THEREUNTO BELONGING OR IN ANYWISE . APPERTAINING, SITUATED IN THE PARISH OF JEFFERSON, STATE OF LOUISIANA, IN THAT PART THEREOF KNOWN AS SURBURBAN PARK SUBDIVISION, SAID LOTS ARE DESIGNATED BY THE NO, FIFTEEN AND LETTER “B” OF SQUARE THIRTY-FOUR (34), WHICH SQUARE IS BOUNDED BY COOK, THEARD, BAINBRIDGE AND LEBOEUF STREETS. SAID LOTS 15 AND B ADJOIN EACH OTHER. LOT NO. 15 MEASURES TWENTY-FIVE (25’) FEET FRONT ON COOK STREET, THE SAME IN WIDTH IN THE REAR, BY A DEPTH OF ONE HUNDRED TWENTY-FIVE (125’) FEET. LOT “B” MEASURES SIXTEEN AND 60/100 (16.60’) FRONT ON COOK STREET, BY A DEPTH OF ONE HUNDRED TWENTY-FIVE (125’) ALONG THE LINE OF LOT NO. 15 AND A DEPTH OF ONE HUNDRED J¿rWENTY-FIVE AND 03/100 (125.08’) FEET; ALL IN ACCORDANCE WITH A PLAN MADE BY J.T.W. STEPHENS, SURVEYOR, ON JUNE 21,1917, ON FILE IN THE OFFICE OF BLYTHE & COMPANY, INC,, AGENT FOR O’CONNER REALTY CO., INC., NEW ORLEANS, BUILDING, NEW ORLEANS, LOUISIANA IMPROVEMENTS BEAR THE MUNICIPAL NO. 1311 COOK STREET, GRETNA, LA 70056.

Following the death of August Edwards, his succession was opened and a judgment of possession was rendered on May 2, 2002, placing Rosabell Sullivan Edwards, as surviving spouse in the community of the decedent," in possession of an undivided one-half (1/2) ■ interest in and to all the property belonging to the community which existed betwéen them, and granting her a usufruct over the other undivided one-half (1/2) interest belonging to the estate of the decedent,. August Edwards. Brenda Mays Edwards, August Edwards, Kenneth Edwards, Sharon Edwards Wright, Ralph Edwards, Wayne Edwards, Elton Edwards, Terry Edwards Jackson, Emile Edwards, Carolyn Edwards and Timothy Edwards, as sole heirs of the decedent (hereinafter “the Heirs”), were placed into possession of the naked ownership of the other undivided one-half (1/2) interest, representing the decedent’s share of the community, in undivided equal portions subject to the lifetime usufruct of their mother, Rosabell Sullivan Edwards (“Rosabell”).

On January 28, 2004, Rosabell executed a promissory note for the principal sum of $40,000.00 together with 6.375% annual interest, payable in monthly installments of $249.55, beginning on March 1, 2004. The promissory note was made payable to the order of Countrywide Home Loans, Inc. and endorsed in blank. The promissory note was secured by an act of mortgage on the above described Property executed by Rosabell on the same date and in the same amount, |awhich was recorded in the mortgage records of Jefferson Parish as Instrument No. 1439009, MOB 4193, Page 430. Rosabell was the sole obligor on both the promissory note and mortgage with which the note was secured; the Heirs did not intervene or execute the note or mortgage.

Rosabell .died intestate on May 7, 2008. At the. time of her death, Rosabell was domiciled and resided at the Property. On December 16, 2010, in accordance with La. C.C.P. art. 3432, Carolyn and Elton Edwards executed an affidavit of small succession providing that the Heirs each .inherited an undivided 1/11 interest in the Property. The affidavit of small succession was recorded on December 16, 2010 in the official records of Jefferson Parish as Instrument No. 11053017, Conveyance Book 3273, Page 382. The affidavit of small succession signed by Carolyn contains the following language, in pertinent part:

(9) Affiant understands and affirms under penalty of perjury that if Affiant is an heir, Affiant accepts the succession of the Decedents [sic], including the Decedents’ [sic] debts. Affiant further 'acknowledges and affirms under penalty of perjury that Affiant executes this document after having read the document line-by-line, that Affiant understands the legal significance of this document, that the information contained in this Affidavit is true, correct and complete to the best of Affiant’s knowledge, information, and belief, and that-Affiant executes this document knowingly, freely and voluntarily and without any coercion or reservation whatsoever.

On August 26, 2014, each of the Heirs, other than Carolyn, executed identical quitclaim deeds conveying ownership of their respective 1/11 undivided interests in the Property to Carolyn. Each of the quitclaim deeds, following a description of the Property, contains the following language, in pertinent part: '

Vendee [Carolyn] understands that this property may be subject to outstanding mortgages and vendee does'understand that these mortgages may outrank [her] privilege and attach to the above-described property.

14As of August 24, 2014, Carolyn became the sole owner of the entirety of the Property.

On September 24, 2014, prior to the recordation of the ten quitclaim deeds, Green Tree filed a “Suit on Promissory Note and to Enforce Mortgage and For Declaratory Judgment” in an ordinary proceeding naming each of the Heirs as a defendant. In its petition, Green Tree alleged that it was the holder of the promissory note secured by the mortgage on the Property executed by Rosabell on January 28, 2004, and that the note was delinquent and in default as the installment due for November 1,. 2008, and all subsequent installments, remained unpaid. In support of its petition. Green Tree submitted the original promissory note and a certified copy of the act of mortgage. As the holder of the promissory note, and pursuant to acceleration clauses contained in the note and mortgage, Green Tree declared the entire indebtedness immediately due and filed suit to enforce the note and the mortgage seeking payment of the “unpaid balance of $37,063.19 principal together with 6.375% per annum interest from October 1, 2008 until paid,” and all allowable charges, costs, expenses, and reasonable attorney’s fees permitted by the pote and mortgage. Green Tree also prayed for judgment declaring and recognizing that the Heirs either concurred or consented to the mortgage prior to its execution, that the mortgage encumbered the entirety of the Property, and that the heirs inherited the Property subject to the mortgage. Green Tree also requested | ¿that a curator ad hoc be appointed to represent the absentee Heirs that were not domiciled in Louisiana.

Carolyn was personally served with citation and a certified copy of the petition filed by Green Tree on December 11, 2014. Once served with a. copy of the citation and petition, Carolyn did not file an answer, exception, any other responsive pleading, or otherwise make an appearance in the case. Consequently, Green Tree filed a motion for preliminary default against Carolyn and the other Heirs who had been properly served and not responded, which was granted on April 7, 2015. On December 18, 2015, Green Tree filed a motion for summary judgment against the remaining , absentee defendants, in rem only.

' Also on December 18, 2015, Green moved to confirm the preliminary default previously granted on April'7, 2015 against Carolyn (and Wayne, Terry, Ralph and Emile Edwards). The record reflects that, at that time,' counsel for Green Tree put into evidence an affidavit of account and status as note holder executed by. Krista-Leonard on behalf of Ditech Financial LLC .showing the default and evidencing the amount owed. Additionally, counsel, for Green Tree presented a certification, which certified service of citation and the petition, that a preliminary default had been entered, and that no answer or other responsive pleading had been filed by any of the five defendants.

On January 4, 2016, considering Green Tree’s motion to confirm the preliminary default, the affidavit of account and status as a note holder,- counsel’s certification, and the exhibits attached to the petition, a default judgment was Rsigned and rendered in favor of Green Tree and against the defendants, Carolyn, Wayne, Terry, Ralph and Emile Edwards, casting them in judgment “jointly and in solido” to,pay Green Tree the sum of “$37,063.19 principal[,] together with 6.375% per annum interest from October 1, 2008 until paid,” and all allowable charges, fees and costs allowable under the note and mortgage. Additionally, the default judgment declared that Carolyn, Wayne, Terry, Ralph and Emile Edwards had “ratified, authorized and confirmed” the mortgage on the Property, and that the mortgage encumbered the entirety of the property, including any and all interest each of them had in the Property.

Notice of the default judgment was sent to Carolyn on January 5, 2016. Thereafter, Carolyn did not file (nor did any of the other defendants cast in judgment) a motion for new trial or seek to annul the default judgment.

Eight months later, in September 2016, Green Tree’s motion for summary judgment against the remaining defendant Heirs, represented by a curator, came for hearing. Certified copies of the ten quitclaim deeds, executed individually by the Heirs transferring each of their respective interests in the Property to Carolyn, were introduced into evidence. Though not made a party to the motion for summary judgment — as Green Tree’s rights against her had already been adjudicated in the prior default judgment — nor having filed a responsive pleading thereto, Carolyn, in proper person, appeared at the hearing on the motion for summary judgment. She stated the following in open court on the record:

Yes. They’re trying to foreclose on the property that Pve been trying to talk to Country Wide when Country Wide had it. I have all kinds of information that— and then by the time I got to be the executive [sic] of the estate, Bank America took over, and since then Bank America has sent me checks for foreclosure, defaults and all. I have checks and all that they sent me... By the time I started talking to Bank America, BAC started on it, and I was 17just collecting information and steady trying to pay the mortgage... Bank America, they told me that I wasn’t eligible for a loan modification because I wasn’t residing in the house, and, thereafter, I sent them utility bills that they requested for me to say that I was residing in the house...

At the close of the hearing, summary judgment was granted in favor of Green Tree and an in rem judgment was entered dated September 8, 2016 recognizing that the ten recorded quitclaim deeds were “subject to and burdened by” the mortgage on the Property, and recognizing that,'by virtue of the quitclaim deeds, Carolyn was the sole owner of the Property “subject to the mortgage.” The in rem judgment further ordered that Carolyn remain the sole defendant in the matter and that the remaining defendant Hems be dismissed from the proceedings.

It is from these two judgments — the January 4, 2016 default judgment and the September 8, 2016 in rem judgment — that Carolyn brings the instant appeal.

ISSUES PRESENTED FOR REVIEW

In her first and second assignments of error, Carolyn attacks the lower court’s default judgment against her and the in rem judgment against the Property alleging that both judgments were erroneously granted because they were “based on a relatively null and invalid mortgage, entered by only one co-owner' [Rosabell], without evidence the non-signing co-owners [the Heirs] accepted the obligation,” or otherwise ratified, authorized or confirmed it, and that it was error for the trial court to declare that the entirety of the Property was subject to the relatively null and -invalid mortgage. In her third assignment of error, Carolyn argues that it was error for the trial court to render judgments for the full sum of the alleged past due amount when, on the face of Green Tree’s petition, a portion of the alleged delinquency had prescribed. In her fourth and fifth assignments of error, Carolyn avers the trial court erred in appointing a curator to represent the interests of the |sfour nonresident defendants when long arm service had not been attempted, and in granting a judgment subordinating an IRS lien without proper service.

For the reasons that follow, because we find the January 4, 2016 default judgment was a final judgment from which an appeal of the decretal elements determined therein no longer lies, we dismiss that portion of Carolyn’s appeal that seeks reversal of the default judgment rendered against her. Further, based on the validity of the mortgage (any alleged relative nullity therein having been cured) and recognition that the mortgage encumbers the entirety. of the Property, both factors having been previously determined pursuant to the de-cretal language contained in the default judgment that is no longer :appealable arid now definitive, we affirm the in rem judgment recognizing Carolyn as the sole owner of the Property subject to the mortgage and dismissing the remaining defendant Heirs. -

STANDARD OF REVIEW

The issues presented in the case sub judice involve questions of law. An appellate court reviews questions of law utilizing the de novo standard of review without deference to the legal conclusions of the court below. Durio v. Horace Mann Ins. Co., 11-0084, p. 14 (La. 10/25/11), 74 So.3d 1159, 1168. “The proper standard of appellate review of questions of law is simply whether the court’s interpretive decision is legally correct.” Franklin Southland Printing Co. v. New Orleans Aviation Bd., 99-60, p. 8 (La. App. 5 Cir. 7/27/99), 739 So.2d 977, 981. When the law is erroneously applied by the trial court, the de novo standard of review is also used. Kevin Associates, L.L.C. v. Crawford, 03-0211, p. 15 (La. 1/30/04), 865 So.2d 34,43.

LAW AND DISCUSSION

I. The January 4, 2016 Default Judgment

The first assignment of error raised by Carolyn pertains to the trial court’s granting of the default judgment in favor of Green Tree, which judgment [’¡recognized that all of the Heirs, including Carolyn, had “ratified, authorized and confirmed” the mortgage, and recognized that the mortgage encumbers the entirety of the Property,; “including any and all interest” Carolyn has in the Property. By her third assignment of error, Carolyn avers the default judgment contains an inflated amount awarded to Green Tree because, on the face of its petition, a portion of the alleged delinquency had prescribed. Before we can address the merits of this assignments of error, we must first determine whether the default judgment rendered against Carolyn on January 4, 2Ó16 was a final judgment, such that the delays for filing an appeal of that judgment would have expired on or about March 14, 2016, making the instant appeal filed eight months later on November 14, 2016, untimely.

In support of her argument that the current appeal is timely, Carolyn contends that the default judgment was a partial .judgment as it did not dispose-of all of the claims of plaintiff and was not certified as a final and appealable judgment in accordance with La. C.C.P. art. 1915. According to-Carolyn, the .default judgment did not become a final, appealable judgment until September 8, 2016, when the court entered, summary judgment dismissing the remaining Heirs and granting all of the relief as requested by Green Tree in its petition. Accordingly, she claims the filing of the instant appeal to seek reversal of the default judgment was timely. We disagree.

Generally speaking, a judgment is the determination of the rights of the parties in an action and can be either interlocutory or final. La. C.C.P. art. 1841. InvA judgment that does not determine the merits but only preliminary matters in the course of an action is an interlocutory judgment; whereas a judgment that determines the merits, in whole or in part, is a final judgment. Id, The jurisdiction of appellate court extends to “final” judgments. La. C.C.P, art. 2083. A “final judgment” is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation. La. C.C.P. art. 2083(A).' A judgment of default against one defendant, not appealed from, is held to be final. Mooring Fin. Corp. 401(K) Profit Sharing Plan v. Mitchell, 08-1250, p. 20 (La. App. 4 Cir. 6/10/09), 15 So.3d 311, 320. While a default judgment may be attacked for procedural defects and vices of form, or ill practices, a defendant who fails to properly make an appearance of record, once properly served with the citation and petition, has received adequate-notice that a legal process has been initiated against him that may affect his legal rights. Mitchell, 08-1250, p. 20, 15 So.3d at 320. If that defendant fails to take any action, ie., by filing a responsive pleading, then a plaintiff may proceed with obtaining á preliminary default, and then after the appropriate legal delays, a judgment of default may be properly confirmed against the defendant. Id.

In the instant matter, the record reflects that Carolyn was personally served with a citation and a certified copy of Green Tree’s petition to enforce the promissory note and mortgage on December 11, 2014. Attached to Green Tree’s petition was the original promissory note executed by Rosabell, a certified copy of the act of mortgage securing the note, and a certified copy of the assignment of the mortgage to Green Tree. Also attached to the petition were a copy of the cash' sale deed evidehcing August and Rosabell Ed-' wards’ original purchase of the Property, a copy of the judgment of possession rendered in the succession of August Edwards, and the affidavit of small succession executed by Carolyn evidencing her acceptance of Rosabell’s succession, including Rosabell’s debts. Green Tree’s |npetition prayed for judgment against Carolyn and the Heirs for the full amount of the outstanding indebtedness on the note, plus interest, costs and expenses permitted by the note. Green Tree’s petition also prayed for judgment declaring that the Heirs had concurred in the mortgage, that the mortgage encumbered the entirety of the Property, and that the Heirs had inherited the Property subject to Green Tree’s mortgage. Having been personally served with citation and petition, Carolyn had received adequate notice that Green Tree had initiated a legal process against her, the subject and nature of the claims being made, and the relief sought against her that could affect her rights.

Despite adequate notice, Carolyn took no action. The record reflects that she failed to file an answer or other responsive pleading to Green Tree’s petition. After the delays for filing responsive pleadings had passed, Green Tree proceeded with .obtaining a preliminary default against Carolyn on April 7, 2015. After the passage of more than eight months, with Carolyn (and the other Heirs that were properly served), having failed to make an appearance of record or to file a responsive pleading to the allegations and claims made in Green Tree’s petition, on December 18, 2015, Green Tree moved to confirm the preliminary default. See La. C.C.P. art. 1701. In addition to the exhibits previously attached to its petition, Green Tree introduced into the record an affidavit of account and status as a note holder and the requisite counsel’s certification in accordance with La. C.C.P. arts. 1702, 1702.1. Considering the petition, exhibits and entry of a preliminary default, on January 4, 2016, the trial court signed the default judgment rendered in favor of Ditech Financial LLC formerly Green Tree and against Carolyn (and the other four Heirs that were served).

The record evidences that notice of the default judgment was sent to Carolyn on January 5, 2016' in accordance with La. C.C.P. art. 1913(C). Thereafter, our review of the record on appeal confirms that Carolyn did not file (nor did any of |12the other defendants cast in judgment) a motion for new trial or seek to annul, revise, modify, vacate,' or otherwise réverse the default judgment or any of the matters decreed therein. We quote the decretal language of the default judgment in its entirety:

IT IS ORDERED that judgment is rendered in favor of Ditech Financial LLC formerly known as Green Tree Servicing LLC and against the defendants Carolyn Edwards (XXX-XX-XXXX), Wayne Edwards'(XXX-XX-XXXX), Terry Edwards Jackson (XXX-XX-XXXX), Ralph Edwards (XXX-XX-XXXX), and Emile Edwards (XXX-XX-XXXX) jointly and solido, in the full and true sum of $37,063.19 principal together with 6.375% per annum interest from October 1, 2008 until paid, and all allowable late charges, escrow disbursements, protection charges and reasonable attorney’s fees on both principal and interest and for all court costs.
IT IS ORDERED FURTHER that judgment be and is hereby rendered declaring that defendants, Carolyn Edwards, Wayne Edwards, Terry Edwards Jackson, Ralph Edwards and Emile Edwards ratified, authorized and confirmed the Mortgage dated January 28, 2004 and registered in Jefferson Parish, Louisiana as Instrument No. 10439009 MOB 4193 PAGE 430.
IT IS FURTHER ORDERED that the Act of Mortgage dated January 28, 2004 and registered in Jefferson Parish, Louisiana as Instrument No. 10439009 MOB 4193 PAGE 430, securing the amount on the following described property be specially recognized and maintained as encumbering the entirety of the property, including any and all interest in the property of defendants, Carolyn Edwards, Wayne Edwards, Terry Edwards Jackson, Ralph Edwards and Emile Edwards[.]

A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as a pleading or reasons for judgment. Input/Output Marine Sys., Inc. v. Wilson Greatbatch Techs., Inc., 10-477, p. 12 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 915-916. The default judgment rendered against Carolyn Edwards contains all of the necessary decretal language to meet the requirements of a final judgment.

In this case, the judgment of default against Carolyn did not decide “less than all of the claims” of Green Tree against Carolyn, nor did it decide only “preliminary matters.” As to Carolyn, the default judgment rendered against her wholly disposed of Carolyn’s involvement in the suit. As to her, it was a final judgment. At that point, Carolyn’s options were to file a motion for new trial, a petition to annul the judgment, or a motion for appeal. She did nothing.

When the delays for appealing the default judgment elapsed, the judgment, and all decretal elements determined therein, became definitive against Carolyn; she may not now appeal it. She offers no substantive objection to the default judgment, but only a conclusory assertion, unsupported by the record, that the default judgment was granted without sufficient proof to establish a prima facie case. Specifically, she argues Green Tree failed to establish a prima facie case that: (1) she (and/or the other Heirs) confirmed or ratified the mortgage such that the mortgage was a relative nullity, (2) the relatively null mortgage encumbered the entirety of the Property, and (3) the amount awarded was inflated due to a portion of the amounts owed having previously prescribed. Because the claim of | ^failure of proof can only be raised by a timely filed motion for new trial or a timely filed appeal — neither of which were filed in this case — we cannot consider Carolyn’s failure-of-proof claim now as it comes too late.

Moreover, there are no allegations that Green Tree procured the default judgment against Carolyn by fraud or ill practices and the record does not support such a conclusion. There is no allegation that Carolyn was deprived of any legal right; she had ample opportunity to appear and assert any defense to the claims that she desired, either in the trial court or by a timely appeal. She could have contested the amount of indebtedness owed on the note or whether or not a portion owed had prescribed, the validity of the alleged relatively-null mortgage, and/or .whether or not the mortgage encumbered the entirety of the Property, as she seeks to do now. She availed herself of none of these options.

In the matter sub judice, we have no remedy to offer Carolyn because her failure to make any timely appearances resulted in a properly obtained judgment of default against her. Though she argues the trial court erred in confirming the default judgment without sufficient competent evidence to prove a prima facie case, a contention we note is not supported by the record, her arguments come too late. “It is not unconscionable or inequitable to enforce a default judgment even though a defendant had a valid defense but failed to timely assert it.” Design Associates, Inc. v. Charpentier, 537 So.2d 1233, 1237 (La. App. 4 Cir. 1989); Johnson v. Jones-Journet, 320 So.2d 533 (La. 1975). Accordingly, Carolyn stands cast in judgment “jointly and in solido” for the full sum of the outstanding indebtedness on the promissory note, $37,063.19, plus interest, charges, fees and costs as provided by the note and mortgage. She is deemed to have “ratified, authorized and confirmed” the mortgage, thereby curing any relative nullity assuming one ever existed. The mortgage securing the noté is further recognized |1fias encumbering the entirety of Carolyn’s interest in the Property as of the date of the judgment, which the record reflects is 100%.

There being no doubt that the January 4, 2016 default judgment was a final judgment, no longer appealable, that portion of this appeal seeking to reverse the default judgment must be dismissed. In summary, Carolyn’s first and third assignments of error are without merit.

2. The September 8, 2016 In Rem and Declaratory Judgment

a. Validity of the Mortgage

In her second assignment of error, Carolyn avers the trial court committed legal error when it granted an in rem and declaratory judgment “that [Green Tree] had a mortgage over the property, without addressing the fact that only a single co-owner had authorized the mortgage.” Carolyn’s second assignment of error is also without merit.

The motion for summary judgment was filed by Green Tree against the nonresident, absentee Heirs.' When suit was.originally filed, a curator ad hoc was appointed by the court to represent the interests of the four nonresident, absentee Heirs, Brenda Edwards Mays, Kenneth Edwards, Sharon Edwards Wright and |inTimothy Edwards, in these proceedings. Once served with citation and petition, the curator appeared and filed an answer on their behalf. Subsequently, when service upon the two remaining Heirs, Elton Edwards and August Edwards, III, could not be accomplished, on motion of Green Tree, a curator was appointed to represent their interests. Following service, the curator appeared' and filed an answer on their behalf. After obtaining the default judgment against Carolyn, Wayne Edwards, Terry Edwards Jackson, Ralph Edwards and Emile Edwards, and issue having been joined as to the nonresident, absentee Heirs by virtue of the answers filed on their behalf, Green Tree moved for summary judgment against the nonresident, absentee Heirs. Carolyn was not named a defendant in the motion for summary judgment.

At some point after Green Tree’s motion for summary judgment had been filed, Green Tree became aware of the quitclaim deeds executed by all of the Heirs other than Carolyn, conveying all of their respective interests in the Property subject to the mortgage to Carolyn, rendering Carolyn the sole owner of the Property subject to thé mortgage. Certified copies of the quitclaim deeds were introduced into the record. At that- point, since Green Tree already had a valid judgment against Carolyn, Green Tree asked the court to issue an in rem judgment only recognizing the ten quitclaim deeds as being subject to and burdened by the mortgage and as having transferred all of the interest in the Property to Carolyn, and recognizing Carolyn as the sole owner of the Property, subject to the mortgage.. Green Tree also requested an '.order dismissing the remaining Heirs and ordering that Carolyn-remain as the sole defendant in the matter. ■ -

Green Tree’s sole purpose for going forward with the summary judgment was to dismiss the remaining defendants that did not have a judgment, against them, but who no longer had any interests in the Property, and to recognize that the |,,7quitclaim deeds to Carolyn were made subject to the mortgage. As noted by Green Tree’s counsel on the record at the hearing:

The only reason I’m requesting a formal judgment is so that if we proceed with a foreclosure and sheriffs sale, the sheriffs office — it will be clear in the record as to why we’re only going forward serving one party [as opposed to everyone else],

Carolyn does not contest the in rem judgment insofar as it recognizes her as the sole owner of the Property; this is a point she concedes. Her attack on the judgment is that it recognizes that the Property she solely owns is “subject to the mortgage.” In essence, by timely appealing the summary judgment, Carolyn attempts to revive her attack regarding the validity of. Green Tree’s mortgage, a matter. that has already been definitively determined in the default judgment rendered against her, which she failed to timely appeal. Consequently, as stated previously, Carolyn is bound by the decretal elements of the January 4, 2016 default judgment that determined the mortgage to be a valid mortgage and one that encumbers the entirety of the Property she now solely owns.

Based on our de novo review of the record, we find no error in the trial court’s in rem judgment recognizing that the ten quitclaim deeds to Carolyn'were subject to the mortgage, that Carolyn is the sole owner of the Property subject to the mortgage, and dismissing the remainder of the Heirs and the United States, leaving Carolyn as the sole remaining defendant in this case. This assignment of error is without merit.

b. Appointment of a Curator for the Nonresident Defendants

By her fourth assignment of error, Carolyn contends the trial court erred in failing to consider the controlling statutes on service of process regarding nonresident, i.e., La. R.S. 13:3201 and La. R.S. 13:3204. She contends that counsel for Green Tree made no attempt to serve the nonresident Heirs by | ^registered or certified mail and requested the appointment of a curator without first attempting to serve them despite having knowledge of their mailing addresses.

Green Tree avers that it was not required to first attempt long arm service on the nonresident Heirs prior to seeking the appointment of the curator ad hoc to represent their interests as the nonresident Heirs were absentees. Pursuant to La. C.C.P. art. 5091(A)(1)(a), the court, shall appoint an attorney to represent the unrepresented defendant on the petition or ex parte written motion of the plaintiff when: (1) the court has jurisdiction over the persons or property of the- defendant, (2) the defendant is a nonresident or absentee who has not been served with process, either personally, or through an agent for service of process, and (3) who has not waived objection- to jurisdiction, An “absentee” is defined in La. C.G.P. art. 5251(1) as “a person who is either a nonresident of this state ... and who has not appointed an agent for service of process in this state in the manner directed by law.”

The nonresident Heirs clearly qualify'as “absentees” according' to the definition set forth in La. C.C.P. art. 5251(1). They are nonresidents of the State of Louisiana as a result of having moved out of the state, and nothing in the record suggests that any one of them has appointed an agent for- service of process in the State of Louisiana. Whether their whereabouts were known is irrelevant since they fall squarely with the applicable definition of absentees under the Code of Civil Procedure. Accordingly, we find that counsel for Green Tree acted in accordance with La. C.C.P. art. 2674 when she requested that the trial court appoint a curator ad hoc to represent the interests of the absentee Heirs in these proceedings. Moreover, service upon the curator was made, therefore; such act constituted proper service of these absentee defendants. Accordingly, we find no error in the trial court in allowing the summary judgment to proceed against the absentee Heirs through a curator, especially in light of the fact that the in rem judgment dismissed | t9all of these defendants from the proceedings. This assignment is also without merit.

c. The IRS Lien

In her final assignment of error, Carolyn contends the trial court erred as a matter of law in granting an in rem judgment that purports to subordinate an IRS lien without obtaining proper service on the United States. First, we note that the in rem judgment is stent as to the IRS lien. Second, according to Green Tree, it did not request subordination of the IRS lien in its motion-for summary judgment nor did it mention the lien at the hearing. The United States of America was named as a defendant in Green Tree’s suit, because at the time suit was filed, an IRS lien was attached to the Property. According to the record, Green Tree has dismissed the United States as a defendant and no longer seeks to pursue a claim against it. This assignment of error also lacks merit.

For the foregoing reasons, we dismiss the appeal, in part, insofar as it seeks a reversal of the January 4, 2016 default judgment. The in rem judgment rendered by the trial court on September 8, 2016 is affirmed.

APPEAL DISMISSED, IN PART; AFFIRMED, IN PART

      . In the original act of mortgage, the mortgage was assigned to Mortgage Electronic Registration Systems, Inc. ("MERS”), as nominee for Countrywide Home Loans, Inc. and its successors and assigns. On March 14, 2013, MERS assigned the mortgage to Green Tree Servicing LLC, now known as Ditech Financial LLC. A certified copy of the assignment was attached to Green Tree's petition.

      . Though the quitclaim deeds were executed on August 26, 2014, they were not recorded in the conveyance records of Jefferson Parish until October 30, 2014.

      . Green Tree also named the United States of America as a defendant in order to "determine rank and priority” on the basis of an IRS lien attached to the Property at issue against Elton and Jennifer Edwards. The record reflects that the United States was dismissed from the lawsuit.

      .In further support of its petition, Green Tree submitted: (1) a copy of the cash sale deed evidencing the purchase of the Property by August and Rosabell Edwards on June 6, 1957: (2) a copy of the judgment of possession rendered on May 2, 2002 in August Edwards' succession evidencing Rosabell's ownership of an undivided one-hálf (1/2) interest in the Property and her usufruct over the other undivided one-half (1/2) interest, the naked ownership having been placed in the possession of the eleven major children in equal shares; and, (3) a copy of the affidavit of small succession signed by Carolyn and Elton Edwards on December 16, 2010 evidencing that each Heir inherited from Rosa-bell an equal share in her undivided one-half (1/2) interest in the Property and evidencing an acceptance (at least by Carolyn and Elton) of Rosabell's succession, including Rosabell’s debts.

      . Personal service was also made on Terry Edwards on October 13, 2014. Domiciliary service was made on Wayne Edwards on October 14, 2014, on Ralph Edwards on October 11, 2014, and on Emile Edwards on November 3, 2014. Neither Terry, Wayne, Ralph, nor Emile filed an answer or any other pleading in response to Green Tree’s petition. A Curator Ad Hoc was appointed for the nonresident Heirs, Brenda Mays Edwards, Kenneth Edwards, .Sharon Wright Edwards, and Timothy Edwards, and an answer was filed on their behalf on' December 10, 2014. Additionally, due to the inability to perfect service upon August Edwards .and Elton Edwards, a Curator Ad Hoc was appointed to represent their interests. The Curator for these defendants was served and an answer was filed on their behalf on March 24, 2015.

      . The record reflects that on January 6, 2016, the day following the entry of default, Carolyn filed, in proper person, a motion for extension of tíme to file an answer, which was denied by the trial court as moot given the previously entered default judgment agaipst her.

      . The default judgment was entered on January 4, 2016, and the record reflects that notice of the signing of the default judgment was-mailed to Carolyn the following day on January 5, 2016. Pursuant to La, C.C.P. art. 1974, the delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed the notice of judgment as required by Article 1913(C), which pertains to notice of the signing of a default judgment against a defendant such as Carolyn on whom citation was served personally. Id. In accordance with La. C.C.P. art. 2087, because she did not make an application for new trial, Carolyn would have had sixty days from the expiration of the delay for applying for a new trial to file a devolutive appeal.

      . A full legal description of the Property identical to that contained in the cash sale deed previously described hereinabove was included in the default judgment.

      . For sake of thoroughness, we note that while a final judgment may, as between the parties, have the substantive effect of acquiring the matter of the thing adjudged, it may nevertheless be subject procedurally to an attack on the ground of its nullity, which Carolyn alludes to in her brief. La. C.C.P. art. 2001. Under Article 2002(A)(2) of the Code of Civil Procedure, a final judgment shall be annulled if it is rendered against a defendant against whom a valid judgment by default has not been taken. Moreover, such an action to annul may be brought at any time. La. C.C.P. art. 2002(b). However, an action to annul a judgment must be brought in the trial court. La. C.C.P. art. 2006. There is no evidence in the record that Carolyn has instituted a direct action or a collateral attack to annul the default judgment in the trial court. We also note that La. C.C.P. art. 2002(A)(2) applies only to technical defects of the form of the judgment or procedure. National Income Realty Trust v. Paddie, 98-2063 (La. 7/2/99), 737 So.2d 1270. The failure to establish the prima facie case required by La. C.C.P. art. 1702 does not constitute a vice of form. Id. Rather, a failure of proof must be raised in a timely filed motion for new trial or timely filed appeal; it may not be raised by an action for nullity. Id.

      .Our review of the record indicates that adequate supporting proof was in fact presented to the trial court by Green Tree, as documented in the record.

      . Carolyn accepted the succession of her mother, Rosabell, as evidenced by the affidavit of small succession signed by Carolyn on , December 10, 2010, attached as an exhibit to Green Tree's petition. Acceptance of a succession obligates the successors to pay the debts of the estate. La. C.C. 961. Estate debts are charged against the property of the estate. La. C.C. art. 1421. The mortgage executed by Rosabell to secure the promissory note held by Green Tree was a debt of Rosabell’s estate that Carolyn (and the other Heirs) became obligated to pay upon acceptance of Rosa-bell's succession. A mortgage "is an indivisible real right that burdens the entirety of the mortgaged property and that follows the property into whatever hands the property may pass.” La. C.C. art. 3280. A person’s actions evidencing an intent to be bound by the obligation constitute an express ratification of it. La. C.C. art. 1843. To the extent the mortgage was a relative nullity as posited by Carolyn, a relatively null contract may be confirmed or ratified. La. C.C. art. 2031. Confirmation or ratification cures the relative nullity of an obligation, which may be either express or tacit. La. C.C. arts. 1842, 1843. Acceptance of Rosabell's succession, including the debts, was a confirmation and ratification of the mortgage encumbering the entirety of the Property. Moreover, the quitclaim deeds included in the record, executed by each of the Heirs conveying to Carolyn their respective ownership interests in the Property subject to the mortgage, evidenced an acceptance of prior ownership of the Property, including debts.


source: Caselaw Access Project

author: CHEHARDY, C.J.

license: Public Domain

text:
    STATE of Louisiana v. Melvin R. BILLIOT
    NO. 17-KA-197
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Bou-dreaux, Gretna.
    COUNSEL FOR DEFENDANT/APPELLANT, MELVIN R. BILLIOT, Prentice L. White
    DEFENDANT/APPELLANT, MELVIN R. BILLIOT, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
   CHEHARDY, C.J.

11 Defendant, Melvin R. Billiot, appeals his convictions and sentences for manslaughter and obstruction of justice. 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, assérting that he 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, appointed appellate counsel requests permission to withdraw as counsel of record for defendant. After a thorough review,of the record, we agree with counsel’s assessment of the case, affirm defendant’s convictions and sentences, and grant counsel’s motion to withdraw.-

PROCEDURAL HISTORY

On October 13, 2011, the Jefferson Parish District Attorney filed a bill of information charging defendant with manslaughter, a violation of La. R.S. 14:31' (count one), and obstruction of justice, a violation of La. R.S. 14:130.1 (count two). Defendant was arraigned the next day and pled not guilty to both counts. After several years of pre-trial motions and continuances, • de-fóndant withdrew his pleas of not guilty and pled guilty as charged to both comits on July 13, 2016. The court sentenced him to twenty years imprisonment at hard labor on each count, to be served concurrently. On January 6, 2017, defendant filed an application for post-conviction relief which was construed as a request for an out-of-time appeal and was granted.

FACTS

Because defendant pled guilty, the underlying facts were not developed at a trial. Nevertheless, the State alleged in the bill of information that on or about July |¾19, 2011, in Jefferson Parish, defendant violated La. R.S. 14:31 in that he unlawfully killed Richard Barrios, and that on July 19, 2011, defendant violated La. R.S. 14:130:1 in that he obstructed justice by tampering with evidence. Also,’ during his: plea colloquy, defendant indicated that by entering his guilty pleas, he was telling the court that he did, in fact, commit the crimes to which he was pleading guilty.With regard to the crime of manslaughter, defendant wrote on the plea form, “I stabbed Richard, but I didn’t mean to kill-him.” And the State offered the following factual basis for the obstruction of justice charge:

Your Honor, if the State had gone to trial in this, matter, the State would have proven that on July 19th, in the. year 2011, the Defendant, Melvin Billiot, did violate Louisiana. Revised Statute. 14:130.1 in that he did obstruct justice by tampering with evidence, to wit, the removal of a weapon, as well as blood evidence.

ANDERS BRIEF

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

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “ ‘a 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, supra, the Louisiana Supreme Court stated that an Anders brief-need not tediously catalog every meritless pre-trial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The 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.” 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, supra 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, he could find no non-frivolous issues to raise on appeal. Counsel states that motions for a preliminary examination and suppression hearing were filed during the discovery process, but there was no information to suggest that the district court erred in finding probable cause or in denying the motion to suppress. He further states that the district court advised defendant of his constitutional rights ^relative to criminal proceedings and that defendant willingly agreed to waive those rights before the district court accepted his guilty pleas. Counsel also asserts that the district court did not err in accepting defendant’s pleas. He affirms that with defendant admitting to the allegations in the bill of information, it was not manifestly erroneous for the district court to accept defendant’s admission and sentence him to twenty years imprisonment. Counsel also notes that defendant was sentenced in accordance with his plea agreement.

The State responds that appellate counsel correctly notes that there are no non-frivolous issues for appellate review. It further responds that the brief filed by appellate counsel shows' a conscientious and thorough review of the procedural history of the case with references tp the record for the convenience of this Court. The State notes that appellate counsel has “cast an advocate’s eye” over the record and determined there .were no non-frivolous issues to raise on appeal. As such, it maintains that appellate counsel has conformed with and followed the procedures set forth in Anders and Jyles, and should be granted permission to withdraw.

The State agrees with appellate counsel that, as shown by the record, the trial court conducted a Boykin colloquy" with defendant and explained the rights he was waiving by pleading guilty. The record reflects that defendant acknowledged the pleas were in his best interest. The State points out that the trial court fully explained to defendant the time limitations for appeal and post-conviction relief as well as the sentences to be imposed. The State notes that the sentences imposed on defendant were within the statutory limits and that defendant was advised that by pleading guilty, he was giving up his right to appeal. The State also notes that defendant did not reserve any rights to appeal any pre-trial rulings prior to pleading guilty, and therefore, any claims relating to’ such rulings are now waived. The State also agrees with appellate counsel that defendant voluntarily and intelligently 15entered guilty pleas and that there are no non-frivolous issues to be raised on appeal. As such, the State requests that appellate counsel’s motion to withdraw be granted.

Our 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 offenses charged. It also sufficiently identified defendant and the crimes charged. See La. C.Cr.P. arts. 462-466. Further, as reflected in the minute entries, defendant and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment, guilty pleas, and sentencing. Accordingly, we find that there are no appealable issues regarding defendant’s presence.

Further, defendant pleaded guilty in this case. Generally, 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. Turner, 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Here, defendant entered unqualified guilty pleas and preserved no rulings for appeal under State v. Crosby, 338 So.2d 584 (La. 1976). Therefore, all non-jurisdictional defects were waived. Although defendant filed several pre-trial motions that do not appear to have been ruled upon, he did not object to the district court’s failure to hear or rule on these pretrial motions prior to his guilty pleas. When a defendant does not object to the trial court’s failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. See State v. Corzo, 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Therefore, defendant’s pre-trial motions are waived.

Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. Instate v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. 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. Id.

A review of the record reveals no constitutional infirmity in defendant’s guilty pleas. The record reflects that defendant was aware he was pleading guilty to the crimes of manslaughter and obstruction of justice. In his waiver of rights form and during his plea colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin. Defendant advised the court that he understood these rights and that he had reviewed the waiver of rights form with his attorneys and signed it, indicating that he understood he was waiving these rights by pleading guilty. He was also advised of and indicated he understood the 'sentencing ranges and the actual sentences that would be imposed if his guilty pleas were accepted. Furthermore, during the colloquy and on his waiver of rights form, defendant indicated that he had not been forced, coerced, or threatened into entering his guilty pleas. At the conclusion of the colloquy with defendant, the district court accepted defendant’s guilty pleas as knowing, intelligent, free, and voluntary.

With regard to defendant’s sentences, 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. Wash ington, 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. In the instant case, defendant’s sentences were imposed in accordance with the terms of the plea agreement set forth in the record at the time of his pleas. Moreover, 17defendant’s sentences are within the sentencing ranges set forth in the respective statutes. See La. R.S. 14:31; La. R.S. 14:130.1.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that he 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 is hereby granted.

In conjunction with appellate counsel’s Anders brief and his motion to withdraw as counsel of record, defendant was advised of his right to file a pro se brief in his appeal. Defendant filed three pro se briefs, which we now consider.

PRO SE ASSIGNMENTS OF ERROR

In his three pro se briefs, defendant raises arguments relating to the denial of his motion to quash the bill of information based on the State’s failure to commence trial within the two-year time limitation set forth in La. C.Cr.P. art. 578(2). And in his third pro se brief, defendant raises an additional argument relating to the admissibility of evidence.

As noted above, defendant entered unqualified guilty pleas, thereby waiving any pre-plea non-jurisdictional defects, including rulings on a motion to quash or relating to the admissibility of evidence. See Crosby, supra. Accordingly, we decline to consider these arguments as these issues have not been preserved for our review.

ERRORS PATENT

Defendant requests an errors patent review. This Court routinely reviews the record for errors patent in accordance with 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) regardless of whether defendant makes such a request. Our review reveals no errors patent in this case.

JgDECREE

For the foregoing reasons, defendant’s convictions and sentences are affirmed. Appellate counsel’s motion to withdraw as counsel of record for defendant is granted.

■CONVICTIONS AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED

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


text:
    STATE of Louisiana v. Derrick GUMMS
    NO. 17-KA-222
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, DERRICK GUMMS, Prentice L. White
    DEFENDANT/APPELLANT, DERRICK GUMMS, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson .
   CHEHARDY, C.J.

liOn appeal, defendant challenges his adjudication as a second felony offender. For the following reasons, we affirm defendant’s underlying convictions and sentences as well as defendant’s multiple offender adjudication and enhanced sentence.

Facts and Procedural History

Because defendant pled guilty, the facts were not fully developed at a trial. However, during the guilty plea colloquy, the State provided the following factual basis for the guilty pleas:

Derrick Gumms engaged in conduct that furthered the aims of an Enterprise by engaging in a pattern of racketeering activity and conspired with members of that Enterprise to distribute controlled dangerous substances, including cocaine, heroin, and marijuana.
■ This conduct, which occurred between 2006 and 2015, included participating in the operation of a narcotics distribution network on the West Bank of Jefferson Parish wherein a violent street gang, named by its. members the “Harvey Hustlers,” obtained controlled dangerous substances from associates and Enterprise members who transported the drugs into the metropolitan New Orleans area.
The ranking members of the Harvey Hustlers then directed the conversion of these drugs into a saleable form, such as converting powder cocaine to crack cocaine, and provided the drugs to rank and file Harvey Hustlers who sold the drug product on the street for the profit of Enterprise members.
Members of the Enterprise who engaged in this activity on a daily basis, other than when one or more of them were in jail, included Mr. Gumms, multiple individuals named in the indictment, and others not included in the indictment.
This activity included all of them working on the streets of Scotsdale, in sight of each other, selling cocaine, heroin or marijuana.

On February 26, 2015, the Jefferson Parish grand jury indicted Derrick Gumms, defendant herein, and twenty other co-defendants on thirty criminal counts for various acts of racketeering committed in furtherance of a narcotics distribution network in Jefferson Parish, operated by a street gang known as the “Harvey Hustlers.” Specifically, defendant was charged with three counts: [¿racketeering, in violation of La. R.S. 15:1352; conspiracy to distribute cocaine, in violation of La. R.S. 40:979 and La. R.S. 40:967(A); and conspiracy to distribute heroin and marijuana, in violation of La. R.S. 40:979 and La. R.S. 40:966(A). At his arraignment on March 9, 2015, defendant pled not guilty to the charged offenses.

On January 28, 2016, defendant withdrew his prior pleas of not guilty and pled guilty as charged. In accordance with the plea agreement, the court sentenced defendant as follows: for racketeering, twenty years imprisonment at hard labor; for conspiracy to distribute cocaine, fifteen years imprisonment at hard labor; and for conspiracy to distribute heroin, twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The court further ordered that all of defendant’s sentences be served concurrently.

Also on January 28, 2016, the State filed a multiple offender bill of information on the conspiracy to distribute cocaine count alleging defendant to be a second felony offender, to which defendant stipulated. The trial court vacated defendant’s sentence for conspiracy to distribute cocaine, and resentenced defendant as a second felony offender under La. R.S. 15:529.1, to twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence to ran concurrently with his other sentences.

On April 5, 2017, defendant filed an application for post-conviction relief requesting an out-of-time appeal, which was granted by the trial court on April 10, 2017. This appeal follows.

jaDiscussion

On appeal, defendant raises one counseled and two pro se assignments of error: first, in his counseled assignment, defendant alleges that, during the multiple bill hearing, the district court failed to advise defendant of his right to remain silent before advising him of the allegations of' the multiple bill, which invalidated his adjudication as a second felony offender; in his first pro se assignment, defendant argues that the State improperly enhanced a juvenile conviction in his multiple offender bill of information; and finally, in his second pro se assignment, defendant alleges that he received ineffective assistance of counsel at the multiple offender hearing.

In his sole counseled assignment of error, defendant argues the trial court erred in failing to advise him of his right to, remain silent before questioning him about the substance of the allegations in the multiple bill, thus, invalidating his adjudication as a second felony offender.

In response, the State concedes that, during the multiple offender proceeding, the trial court did not inform defendant of his right to remain silent prior to questioning defendant about the allegations of the multiple bill. The State asserts that defendant signed a waiver of rights form prior to the commencement of the trial court’s' questioning, which informed him of his privilege against self-incrimination and satisfied the requirement that he be advised of his constitutional rights.

La. R.S. 15:529.1(D)(l)(a) requires that, when the State seeks enhanced sentencing for a multiple offender, the defendant must be advised of the specific allegations contained in the multiple offender bill of information and his right to a formal hearing at which the State must prove its case. Implicit in this requirement is the additional requirement that the defendant must be advised of his constitutional right to remain silent. State v. Johnson, 432 So.2d 815, 817 (La. 41983); State v. Walker, 01-348 (La. App. 5 Cir. 8/28/01), 795 So.2d 459, 463, writ denied, 01-2788 (La. 10/4/02), 826 So.2d 1115.

At the multiple offender hearing, the defendant may admit or deny the allegations of the multiple bill “after being duly cautioned as to his rights.... ” La. R.S. 15:529.1(D)(3); State v. Johnson, supra (a trial court should, prior to a defendant’s admission, advise defendant “of his right to a formal hearing, to have the [prosecution] prove its case under the multiple offender statute, [and] of his right to remain silent”).

Generally, the failure of the trial court to advise the defendant of his right to a hearing and his right to remain silent is not considered reversible error where the defendant’s multiple offender status is established by competent evidence offered by the State at a hearing rather than by admission of the defendant. State v. Knight, 01-881 (La. App. 5 Cir. 2/13/02), 811 So.2d 947, 949. However, when the guilt of the defendant is proven by his own stipulation to the multiple offender bill of information without having been informed of his right to a hearing or his right to remain silent, by either the trial court or his attorney, there may be reversible error. Id.

Louisiana jurisprudence further provides that if the record reflects that the defendant was advised of his multiple offender rights by the trial judge and/or his attorney, then the defendant intelligently waived his rights. State v. Hart, 10-905 (La. App. 5 Cir. 5/10/11), 66 So.3d 44, 48, writ denied, 11-1178 (La. 11/18/11), 75 So.3d 448. Importantly, the requirements of La. R.S. 15:529.1(D)(l)(a) that the court inform a defendant of the allegations in a multiple offender bill of information, and of his right “to be tried as to the truth thereof according to law,” should not serve as technical traps for an unwary but otherwise conscientious judge. State v. Cook, 11-2223 (La. 3/23/12), 82 So.3d 1239, 1240.

|fiIn State v. Williams, 05-582 (La. App. 5 Cir. 2/14/06), 924 So.2d 327, 332-33, this Court recognized on error patent review that the record reflected that the trial judge failed to advise the defendant of his multiple offender rights prior to his stipulation to the multiple bill. This Court found that, although the judge did not advise the defendant in court of his multiple offender rights, the colloquy indicated that defense counsel had advised the defendant of those rights and the record contained a waiver of rights form that listed the multiple offender rights. This Court also noted that the form was dated on the same date that the defendant stipulated to the multiple bill, which was signed by the defendant, his counsel, and the judge. After considering the exchange that took place among the parties and the waiver of rights form, this Court found that the defendant was adequately advised of his rights before he stipulated to the multiple bill and that he knowingly and intelligently waived those rights.

In this case, before the multiple offender proceeding commenced, the trial court called' a recess to allow defense counsel to confer with defendant about the multiple offender waiver of rights form. Once the proceeding commenced, defense counsel informed the court that he had reviewed the multiple bill and multiple offender waiver of rights form with defendant, who had read the form and executed it, agreeing to “plead guilty” to being a second felony offender. Defense counsel then provided the fully-executed multiple offender waiver of rights form, which was signed by defendant, his attorney, and the trial judge, to the trial judge, who asked defendant if he had reviewed the form in its entirety with his ■ attorney. Defendant agreed that he had reviewed the waiver of rights form and acknowledged his signature on the document.

hThe waiver of rights, form in question indicated that, by stipulating to the allegations in the. multiple offendqr bill,, defendant was giving up his right to “plead not guilty” and to have a hearing on the multi-pie bill. The form further explained the State’s burden at a multiple ML hearing. The form also indicated that defendant understood he had the right to remain silent throughout the hearing but was waiving ''this right. Defendant indicated that he was satisfied with the way his attorney and the court had explained his rights and the consequences of his stipulation. He indicated that he was not forced, coerced, or threatened into stipulating to the multiple bill.

After receiving defendant’s waiver of rights form, the court advised defendant of his right to an attorney. The court then asked defendant whether he was the same person who pled guilty to the predicate offense as charged in the multiple bill. Defendant answered affirmatively. The trial court went on to advise defendant of his multiple offender rights, including his right to “plead not guilty,” his right to a hearing, and his right to remain silent at the hearing. Defendant indicated that he understood his rights-and that by stipulating to the multiple bill he would be waiving them. Defendant indicated that he was satisfied with the representation of his attorney and the court’s explanation of his rights, and reiterated that he had not been forced, coerced, or threatened into “pleading guilty.” Defendant further indicated that he understood the possible legal consequences of “pleading guilty” and wished to “plead guilty.” The court accepted der fendant’s “guilty plea” as a second felony offender as knowingly, intelligently, freely, and voluntarily made.

In the present case, the trial judge did not verbally advise defendant of his. right to remain silent on the record until after defendant had admitted to his prior felony Conviction. However, the- well-executed waiver of rights form reflects that defendant was advised in writing of his right to remain silent, and defense counsel I ^attests that he advised defendant of his rights according to the waiver of rights form before the multiple offender proceeding began.

Noting that the requirements of La. R.S. 15:529.1 “should not serve as technical traps for an unwary but otherwise conscientious judge,” State v. Cook, supra, we find that the well-executed waiver of rights form completed before the proceeding constituted a proper rights advisal in advance of defendant’s stipulation to the allegations of the multiple bill. Accordingly, we find no violation of defendant’s constitutional rights and no error in his adjudication. This assignment of error lacks merit.

In his first pro se assignment of error, defendant challenges the validity of the multiple offender bill of information used to charge him as a second felony offender. Specifically, defendant claims that the multiple bill seeks to enhance his underlying conviction for conspiracy to distribute cocaine, which he contends he committed as a juvenile. He further contends that he should not have been multiple billed using a 2009 predicate conviction, which occurred after his underlying 2005 offense.

First, by stipulating to the multiple bill, defendant waived his right to a hearing and any possible non-jurisdictional defects. 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. Accordingly, defendant waived any challenges to the multiple bill.

Even if this challenge had been preserved, it would lack merit. In this case, the multiple offender bill of information alleged defendant was a second felony offender based on defendant’s December 15, 2009 predicate conviction for distribution of marijuana within one thousand feet of a church, in violation of La. RR.S. 40:981.3. The State sought to enhancé defendant’s underlying conviction of conspiracy to distribute cocaine, which is based on offenses that occurred between 2006 and 2015. Defendant admitted that he committed a series of offenses during this time frame.

Defendant reported his birth date as January 9, 1989, making him a juvenile up until his eighteenth birthday on January 9, 2007. Thus, any offenses that occurred after 2007 occurred after defendant had attained majority.

Further, based on the date range of the underlying offense extending until 2015, defendant’s argument that a 2009 conviction could not be used as a predicate in the multiple bill lacks merit because the underlying offense could have been committed at any time between 2009 and 2015, and still fall within the relevant time frame. In sum, this assignment lacks merit.

In his second pro se assignment of error, defendant contends that his counsel was ineffective for failing to investigate his prior. criminal history, and, as a result, neglected to object to the underlying conviction being enhanced in the multiple offender bill of information., He further asserts that his counsel was ineffective because he permitted defendant to plead guilty to a crime that allegedly occurred on August 29, 2005, during a mandatory hurricane evacuation when' defendant was only sixteen years old.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution safeguard a defendant’s right to effective assistance of trial counsel. According to the United States Supreme Court’s opinion in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant asserting an ineffective assistance claim must show: 1) that defense counsel’s performance was deficient; and 2) that the deficiency prejudiced the defendant. The defendant has the burden of showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the | ¡¡proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, if necessary, rather than by direct appeal. State v. Taylor, 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised in an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under La. C.Cr.P. arts. 924-930.8. Id.

We find that the record contains sufficient evidence to rule on the merits of defendant’s claim and, thus, elect to address it in the interest of judicial economy. Defendant’s contention that his counsel was ineffective for failing to investigate is unsupported by the record. As previously noted in our discussion of defendant’s first pro se assignment of error, the record reflects that defendant’s underlying conviction, which was enhanced in the multiple bill, was for offenses committed between August 29, 2005 and Fébruary 26, 2015, a time frame during which defendant attained majority.

Because our review reveals that this claim is meritless, we find that trial counsel did not render ineffective assistance by “failing to investigate.” Accordingly, we find that defendant is not entitled to relief. This assignment lacks merit.

Errors Patent

According to our routine practice, 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). We have found none that require correction.

Conclusion

In conclusion, we affirm defendant’s underlying convictions and sentences as well as defendant’s multiple offender adjudication and enhanced sentence.

AFFIRMED.

      . While defendant was charged with one count of conspiracy to distribute heroin and marijuana (along with seventeen other co-defendants) and pled guilty as charged, the trial judge informed him during the colloquy that the Schedule I narcotic drug defendant was pleading guilty to was heroin; thus he was advised of the sentencing range for conspiracy to distribute heroin and he was later sentenced on conspiracy to distribute heroin only.

      . See also State v. Oliver, 14-428, p. 11 (La. App. 5 Cir. 11/25/14), 165 So.3d 970, 976, writ denied, 14-2693 (La. 10/9/15), 178 So.3d 1001, where this Court found that although the trial judge did not advise the defendant of his right to remain silent at the multiple bill proceedings, based on the context of the record, the waiver of rights form was executed prior to the multiple bill stipulation, and the form contained a proper advisal.


author: JOHNSON, J.

text:
    STATE of Louisiana v. Thomas K. AMMONS
    NO. 17-KA-255
    Court of Appeal of Louisiana, Fifth Circuit.
    November 15, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, THOMAS K. AMMONS, Bruce G. Whittaker
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson
   JOHNSON, J.

| j Defendant, Thomas Ammons, appeals his convictions and sentences for purse snatching, access device fraud valued at over $500, and attempted access device fraud. For the reasons that follow, we affirm.

On October 14, 2016, Defendant was charged with one count of purse snatching in violation of La. R.S. 14:65.1 (count one), one count of access device fraud valued at over $500 in violation of-La. R.S. 14:70.4 (count two), and two counts of attempted access device fraud in violation of La. R.S. 14:27 and 14:70.4 (counts three and four). Defendant initially pled not guilty but later withdrew his not guilty pleas, after being advised of his Boykin rights, and pled guilty as charged to all four counts. In accordance with a plea agreement, the trial court sentenced Defendant to seven and one-half years' at hard labor on count one, and two and one-half years at hard labor on each of counts two, three, and four. His sentences were ordered to run concurrently with each other. ■

Immediately thereafter, the State filed a multiple offender bill of information alleging Defendant to be a second felony offender. Ás part of the plea bargain, Defendant stipulated to his status as a second felony offender, and the trial court resen-tenced him under La. R.S. 15:529.1 on count two, after vacating his original sentence on count two, to two and one-half years at hard labor without benefit of probation or suspension of sentence. His enhanced sentence was ordered to run concurrently with his sentences on counts one, three, and four.

Appellate counsel’s brief contains no assignments of error and sets forth that it is filed in accordance with 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 1 zcuriam), which set forth the procedure appellate counsel should follow when, upon conscientious review of a case, counsel finds an appeal would be wholly frivolous.

In the instant case, appellate counsel reviewed the procedural history of the case in his brief. He set forth that, after a review of the record, he has failed to find any non-frivolous issues to present on appeal. Appellate counsel noted that Defendant entered an unqualified guilty plea, which waived all non-jurisdictional defects and precludes review of any such defects on appeal. Counsel also noted that Defendant was not forced, coerced or threatened into entering his guilty pleas, and that he understood his rights, the charges against him, and the sentences he would receive in exchange for his pleas; thus, his pleas were knowing and voluntary. Counsel further indicated Defendant’s plea bargain appealed to be advantageous to Defendant and that he was sentenced in accordance with the plea agreement, precluding him from challenging his sentences on appeal. Counsel reviewed the legality of the multi: pie bill, which was predicated upon a 2013 North Carolina conviction, and concluded the multiple bill was valid and'Defendant’s enhanced sentence was therefore legal.

Appellate counsel requests to withdraw from further representation of Defendant. He advised this Court that he notified Defendant of his right to file a pro se brief in this appeal, and we note that this Court sent Defendant a letter by certified mail informing him that an Anders brief had been, filed and that he had a right to file a pro se supplemental brief. Defendant chose not to file a pro se brief.

This Court has performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in 'the appellate record. Our independent review reveals no non-frivolous issues or trial court rulings that arguably support an appeal.

We note a minor discrepancy between the sentencing transcript and the commitment. The commitment reflects that Defendant’s enhanced sentence ■onlacount two is to “run concurrently with counts 2, 3 and 4,” while the transcript reflects that Defendant’s enhanced sentence on count two was ordered to run concurrently with Defendant’s original sentences on counts “1, 3, and 4,” (Emphasis added.) Generally, when there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Thus, the trial court is ordered to correct the referenced discrepancy in the commitment, and the Clerk of Court for the 24th Judicial District court is directed to transmit the corrected commitment to the officer in charge of the institution to which Defendant has been sentenced as well as to the legal 'department of the Louisiana Department of Public Safety and Corrections. See State v. Long, 12-184 (La. App. 5 Cir. 12/11/12); 106 So.3d 1136, 1142.

For the foregoing reasons, Defendant’s convictions and sentences are affirmed. Appellate counsel’s motion to withdraw, which has been held in abeyance pending disposition of this matter, is granted.

CONVICTIONS AND SENTENCES AFFIRMED; MATTER REMANDED FOR CORRECTION OF COMMITMENT; MOTION TO WITHDRAW GRANTED

      . This memorandum opinion is issued in compliance wi& Louisiana Uniform Rules— Courts of Appeal, Rule 2-16.1(B).

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