author: Judge Joy Cossich Lobrano

text:
    STATE of Louisiana v. Carlos ZEPEDA
    NO. 2017-KA-0598
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 13, 2017

      Leon Cannizzaro, DISTRICT ATTORNEY, ORLEANS PARISH, Donna An-drieu, Chief of Appeals, Assistant District Attorney, J. Taylor Gray, Assistant District Attorney, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR AP-PELLEE/STATE OF LOUISIANA
    Sherry Watters, LOUISIANA APPELLATE PROJECT, P.O. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Joy Cossich Lobrano)
   Judge Joy Cossich Lobrano

| ¡.Defendant, Carlos Zepeda (“Defendant”), appeals his November 30, 2016 convictions for aggravated battery, a violation of La. R.S. 14:34, and simple battery, a violation of La. R.S. 14:35. Defendant also appeals his sentence for aggravated battery. Finding no error, we affirm the judgment of the district court.

On the morning of June 18, 2016, three male friends (together, “victims,”) met at a hardware store where they frequently gathered in search of work. After waiting for a period of time at the hardware store without success, the victims relocated to a restaurant where they ordered food and a six-pack of beer to share amongst themselves. While the victims were eating and drinking, Defendant came over to their table and asked for a beer, at which time the first victim gave him one. The group socialized for about half an hour before the victims paid their bill. | ¡¡Rather than paying his own bill, Defendant asked the victims to lend him fifty dollars. None of the victims complied.

At that time, all four men left the restaurant together and transported Defendant to his house. The first victim testified that Defendant went inside of the house to obtain money to pay his bill at the restaurant, but he never returned to the vehicle. The victims left Defendant at his house and drove back to the hardware store.

About twenty-five to thirty minutes later, Defendant arrived at the hardware store. A group of people were outside the store gambling and playing a game of cards. Defendant, did not say a word to anyone, but went to the trunk of his car, closed it, and walked away. The third victim observed Defendant crossing the street towards them,, carrying a machete in his pants. The first victim was distracted by the ¡game of cards and did not see Defendant approach him from behind. Defendant struck the first victim with the machete several times in the back, near the neck, in the torso and ribs, and in the back of the head. The blows caused the first victim to collapse near a tree at the front entrance of the hardware store.

After attacking the first victim, Defendant ran after the second victim with the machete. The second victim took off'his belt to defend himself. However, the belt tore and the second victim ran away from Defendant. Defendant then fled towards the entrance of the hardware store and into the street. A group of about six or seven people, including the second and third victim, immediately chased after Defendant with sticks, bats, and other objects to prevent him from leaving the |4scene. Defendant fled towards a white truck, but before he could drive away, several people pulled him out of the truck and detained him until the police arrived. At one point during the chase, the third victim caught up with Defendant in order to detain him, but Defendant fractured his hand with a paint roller/stick.

Two, Louisiana State Troopers and a New Orleans Police Department (“NOPD”) detective were the first law enforcement officers on the scene. A little while later, Officer Colin Eskine (“Officer Eskine”), of the NOPD, arrived. The NOPD detective gave Officer Eskine a brief summary of what occurred prior to his arrival. A Louisiana State Trooper provided interpretation between the second and third victims and Officer Eskine.

Both the first victim and Defendant were transported’to the hospital, where the first victim received multiple stitches in the back of his head, his left ear, and torso. Defendant was also treated for-a minor injury to his hand. Defendant and the first victim were released- from the hospital shortly thereafter.

On July 25, 2016, the State .of Louisiana charged Defendant by bill of information with one count of attempted second degree murder of the first victim, in violation of La. R.S. 14: (27)30.1, one count of aggravated assault with a dangerous weapon of the second victim, in violation of La. R.S. 14:37, and one count of simple battery on the third victim, in violation of La, R.S. 14:35. On July 27, 2016, Defendant appeared in- court for arraignment and entered a plea of not guilty. On August 19, 2016, Defendant filed numerous pre-trial motions. A hearing Lon Defendant’s motions was held on August 22, 2016, and the district court found probable cause for the charges filed against Defendant.

A three-day jury trial was held from November 28, 2016 through November 30, 2016. On the first day of trial, the State provided defense counsel with medical records indicating that the first victim had an ethanol level of 148.66 on the date of the incident, Counsel for the State indicated that although the medical records were dated July 20, 2016, the State obtained them on November 28, 2016.

On the second day of trial, defense counsel filed a motion for sanctions, alleging a violation of Brady and statutory discovery laws. A hearing outside the presence of the jury was held, during which defense counsel requested three remedies. First, defense counsel requested a mistrial. Next, defense counsel requested that the district court take judicial notice that a 148.66 ethanol level is equivalent to a .14866 blood alcohol level. Lastly, defense counsel requested that- the district court instruct- the jury that defense counsel was unable to incorporate information concerning the victims’ intoxication into opening statements because the State’s failed to disclose it timely. At the conclusion of the hearing, the district court agreed to take judicial notice of the .14866 blood alcohol level and to give the jury instruction. Defense counsel agreed to withdraw the motion and proceed with trial.

At the conclusion of the trial on November 30, 2016, as to count 1, the jury found Defendant guilty of a lesser offense, aggravated battery, a violation of La. R.S. 14:34; as to count 2, the district court found Defendant not guilty; and as to IfiCount 3, the district court found Defendant guilty. On December 8, 2016, Defendant was sentenced. As to count 1, Defendant received ninety-eight months imprisonment at hard labor, the first year to be served without benefit of probation, parole, or suspension of sentence and as to count 3, Defendant received ninety-eight days at Orleans Parish prison, to be served concurrently with the sentence for count 1. Defense counsel filed a motion for appeal and designation of the record on December 12, 2016, which the district court granted on the same date. This appeal timely follows.

ERRORS PATENT

Louisiana Code of Criminal Procedure article 920 directs appellate courts to consider errors discoverable by an'inspection of the pleadings and proceedings. State v. Sims, 2017-0101, p. 3 (La. App. 4 Cir. 11/15/17), 231 So.3d 742, 2017 WL 5477052. A review of the record reveals that at the December 8, 2016 sentencing hearing, the district court informed Defendant that his sentence would be ninety-eight months imprisonment at the Department of Corrections .for the State of Louisiana at hard labor, with the first year of the sentence being served “without the benefit of probation, parole, or suspension of sentence.” Pursuant to La. R.S. 14;34(B), at least one year of the sentence shall be served without benefit of parole, probation, or suspension only if the offender knew or should have known that the victim was |7an'active member of the Armed Forces or is a disabled veteran. Both Defendant and the State agree, that the record is void of any evidence that the first -victim is an active member of the Armed Forces or is a disabled veteran. Accordingly, the case is remanded to the district court to amend the sentence to remove this restriction.

Assignments of Error

In his first assignment of error, Defendant argues that the district court erred by failing to impose sanctions on the State for failure to .produce Brady material. It is well settled that the State has an affirmative duty to disclose exculpatory evidence favorable to a defendant. Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). In order to prove a Brady violation, the defendant must establish, inter alia, that the evidence in question was in fact exculpatory or impeaching. State v. Garrick, 2003-0137, p. 5 (La. 4/14/04), 870 So.2d 990, 993 (per curiam). Disclosure of exculpatory evidence should be made in time to allow a defendant to make effective use of such information in the presentation of his case. State v. Crawford, 2002-2048, p. 13 (La. App. 4 Cir. 2/12/03), 848 So.2d 615, 625. However, even where a disclosure is made during trial, it will be considered timely if the defendant is not prejudiced. See State v. Prudholm, 446 So.2d 729, 738 (La. 1984).

| sIn the instant case, defense counsel filed a written motion for sanctions for Brady violations. On six different occasions during the hearing on the motion, the district court asked defense counsel exactly what remedies she was seeking; specifically asking whether she wanted the district court to declare a mistrial. RRather than maintaining her objection and seeking sanctions and/or a mistrial, defense counsel withdrew her motion, instead asking that the district court take judicial notice that a 148.66 ethanol level is the equivalent of a .148 blood alcohol level and that the district court instruct the jury that defense counsel was unable to incorporate information concerning the victims’ intoxication into opening statements because the State’s failed to disclose it timely. The record makes clear that defense counsel explicitly agreed to withdraw the motion in its entirety and proceed with the trial.

La. C.Cr.P. art. 841(A), known as the contemporaneous objection rule, states that “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence....” See also State v. Hickman, 2015-0817, p. 12 (La. App. 4 Cir. 5/16/16), 194 So.3d 1160, 1168 (finding that where an alleged error was not objected to, review of that error was waived on appeal). The contemporaneous objection rule has two purposes: (1) to require counsel to call 11f)an error to the trial court’s attention at a time when it may correct the error; and (2) to prevent defense counsel from “sitting on” an error and gambling on a favorable verdict, only to later resort to appeal after conviction on an error that might have been corrected at trial. State v. Knott, 2005-2252, p. 2 (La. 5/5/06), 928 So.2d 534, 535; see also State v. Coleman, 2012-1408, p. 20 (La. App. 4 Cir. 1/8/14), 133 So.3d 9, 13. Because defense counsel withdrew its objection, Defendant has not preserved the issue for appellate review.

Furthermore, even if Defendant had preserved the issue for appellate review, Defendant has not demonstrated that he was prejudiced by the State’s disclosure of the victim’s medical records on the first day of trial. In his appellant brief, Defendant argues that if the evidence had been disclosed, his self-defense case “would have been strengthened by showing [the victims] to be drunken marauders out to avenge Defendant’s interferences at the restaurant and with their work.” However, a review of the record reveals that defense counsel was provided with evidence of the first victim’s medical records prior to the three victims’ testimonies and defense counsel did in fact cross-examine those witnesses, questioning them about their alcohol consumption on the date of the incident. Compare State v. Roussel, 381 So.2d 796, 801 (La. 1980) (finding that where a defendant’s late discovery of the alleged exculpatory information did not deprive defendant of an opportunity to effectively present the alleged Brady material to the trier of fact, the defendant was not prejudiced by the late discovery). For these reasons, even if Defendant had preserved this assignment of error for appellate review, he has not |1¶ demonstrated that he was prejudiced by the disclosure of the medical records on the first day of trial. This assignment of error lacks merit.

In his second assignment of error, Defendant argues that the sentence is constitutionally excessive. The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be constitutionally excessive. State v. Hamdalla, 2012-1413, p. 15 (La. App. 4 Cir. 10/2/13), 126 So.3d 619, 627. A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of. the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Moss, 2008-1079, p. 17 (La. App. 4 Cir. 7/22/09), 17 So.3d 441, 451. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Id. at 2008-1079, p. 18, 17 So.3d at 452.

In the case sub judice, Defendant ar: gues that the district court failed to adequately consider the mitigating factors present in his- case, and thus imposed an excessive sentence. First, this Court must determine whether the issue raised by Defendant was preserved for appeal. While Defendant argues that he objected to the sentence at the December 8, 2016 hearing, the record is void of any such objection. Defendant also concedes that he failed to file a motion to reconsider the sentence as required by La. C.Cr.P. art. 881.1.

112La. C.Cr.P. art. 881.1(E) sets limits on appellate review of sentences where, as in the case sub judice, a defendant fails to file a motion to reconsider sentence at the district court. La. C.Cr.P. art. 881.1 provides in pertinent part:

A. (1) In felony eases, within thirty days following the imposition of sentence ... the state or the defendant may make or file a motion to reconsider sentence.
(2) The motion ... shall set forth the specific grounds on which the motion is based...
E. Failure to make or file a motion to reconsider sentence ... shall preclude ... the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

In the absence of such an objection or filing of a written motion for reconsideration of sentence, a defendant is precluded from urging any ground of objection to the sentence. See State v. Hulbert, 2003-1149, p. 3 (La. App. 4 Cir. 8/20/03), 852 So.2d 1245, 1246-47. Defendant’s failure to object to the sentence at sentencing and his failure to file a motion to reconsider sentence bars him .from arguing that the sentence is excessive on appeal.

For the reasons stated above, Defendant’s convictions and sentences are affirmed. This case is remanded with the instruction that the district court amend Defendant’s sentence for aggravated battery as required by this opinion.

AFFIRMED; REMANDED WITH INSTRUCTIONS

      . Two of the victims testified that each of the three victims consumed two beers each, but second victim testified that he drank a single beer.

      . The victims are numbered in accordance with the count on the bill of information listing that individual as the victim.

      .The victims testified that they had met Defendant approximately six to eight months prior to the date of the incident, when Defendant began hanging out in front of the hardware store. However, the victims also testified that they were not friends with Defendant.

      . La. R.S. 14:34(B) provides:
      Whoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both. At least one year of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence if the offender knew or should have known that the victim is an active member of the United States Armed Forces- or is a disabled veteran and the - aggravated battery was committed because of that status.

      . Excerpts from the hearing on the motion for sanctions read (emphasis added):
      Day 2
      (A brief recess was taken)
      Out of presence of the jury
      The Court:
      What do you want me to do?
      [Defense Counsel]:
      It’s Brady, first of all. So I am asking one that there be sanctions. But two that I be able to ask this witness information that is in the medical records even though he did not write them. Because at this point I cannot go get an expert. Ethanol level is not something that we use in common everyday language. We think of blood alcohol level. It is factually the same, but I can't call an expert now—

      The Court:
      So you are getting them in. Now what?
      [Defense Counsel]:
      I am asking that I allow the Court to take judicial notice that ethanol level is the same thing as blood alcohol level. You go over three decimal points and that is what the number is. A 148.66 is the same thing as .14866.

      The Court:
      I knew we were going to get here. You want me to recess this case or do you want a mistrial?
      [Defense Counsel]:
      I can introduce Brady and not put it into evidence. I can confront someone with Brady without introducing it into evidence.

      The Court:
      You want a continuance? You want a mistrial? What do you want?
      [Defense Counsel]:
      I’m fine going forward if we are allowed to take judicial notice that a 148,66 is the same thing as a -14866.

      The Court:
      I am going to take judicial notice of it and I am going to make that announcement, to the jury over the State’s objection.

      The Court:
      I mean that’s the Court’s ruling. You can ask for a mistrial. I am going to grant it, You can take all the writs. You can start all over. You all can do whatever you want. [Defense Counsel]:
      I am okay with it as it stands right now. But depending on how your Honor allows me to question the witness—
      The Court:
      As a wise judge once told me, he said, Mr. Zibilich you can ask me for all the advisory opinions in the world. I ain't giving you none. I can't answer that question until I hear their objection.
      [Defense Counsel]:
      We can go for it as it is now.

      . See also State v. Martin, 97-0319, p. 1 (La. App. 4 Cir. 10/1/97), 700 So.2d 1322, 1323; State v. Green, 93-1432, pp. 5-6 (La. App. 4 Cir. 4/17/96), 673 So.2d 262, 265; State v. Salone, 93-1635, p. 4 (La. App. 4 Cir. 12/28/94), 648 So.2d 494, 495-96.


source: Caselaw Access Project

author: Judge Rolaíid L. Belsome

license: Public Domain

text:
    Charles GARBER, Edward C. Bonin, Rene Fransen, and Rodney Villarreal v. The CITY OF NEW ORLEANS THROUGH The City Council and The CITY PLANNING COMMISSION
    NO. 2016-CA-1298
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 13, 2017
    Rehearing Denied December 27, 2017

      Justin L. Winch, WINCH, LAW FIRM, LLC, 650 Poydras Street; Suite 1407, New Orleans, LA 70130, Lloyd N. Shields, SHIELDS MOTT L.L.P., 650 Poydras Street, Suite 2600, New Orleans, LA 70130, Stuart H. Smith, STUART H. SMITH, LLC, 508 St. Philip'Street, New Orleans, LA 70116, COUNSEL FOR PLAINTIFF/APPELLANT
    Rebecca H. Dietz, CITY ATTORNEY, Adam J. Swensek, CHIEF DEPUTY CITY ATTORNEY, Melissa S. Quigley, ASSISTANT CITY ATTORNEY, 1300 Perdido Street; Suite 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards', Pro Tempore)
   Judge Rolaíid L. Belsome

|! This is a land use case. The owner of vacant commercial property, in the French Quarter sought approval- to remodel the structure and re-subdivide the lots in order to operate a Cuban restaurant: Café Habana. After the submission of several applications, the City of New Orleans, through both the Vieux Carré Commission (VCC) and the City Council, approved the owner’s fourth application to remodel the property. The City of New Orleans-, through the City Planning Commission (CPC), also approved the request for a re-subdivision. The Appellants, several neighbors and neighborhood preservation groups, brought suit for judicial review of the City’s decisions. On appeal, the trial court found that there was nothing to suggest that the City acted unreasonably or inconsistent with its legal mandates; therefore, it denied relief to the Appellants. We agree and affirm.

FACTS AND PROCEDURAL HISTORY

The property owner, Esplanade Nola, LLC, owns two contiguous lots on the outskirts of the French Quarter, at the intersection of Esplanade Avenue and North Rampart Street. The lots house two separate buildings bearing the physical misaddresses 1036-38 Esplanade Avenue and 1040 Esplanade Avenue. The two respective properties, built in the early part of the 1900’s, were previously used as a pharmacy and a gasoline service station before falling into disrepair. Prior to filing the application at issue in this appeal, Esplanade Nola, or its affiliates, had filed three applications, the first in 2012, to develop the property into a standard restaurant. Those applications were either deferred or withdrawn.

On August 12, 2014, Esplanade Nola filed its fourth application for a “change of use” and renovation of its property. On August 26, 2014, after a hearing, including a staff presentation and opportunity for public comment, the Architectural Committee of the VCC elected to “conceptually approve” Esplanade Nola’s project proposal consistent with the staff recommendation. The staff recommended conceptual approval, provided that Esplanade Nola submitted design revisions to include plans for: elevation, capacity, table- arrangements, signage, property line fencing, lighting, cooler condenser and kitchen exhaust placement, re-subdivision application documents and an updated survey. After the Architectural Committee granted conceptual approval, the application was forwarded to the VCC for conceptual review. At the VCC meeting on September 3, 2014, the staff made its presentation and the public was afforded an opportunity for comment. Ultimately, the VCC voted to approve the conceptual design consistent with the staff analysis and recommendation of the Architectural Committee.

|aOn September 23, 2014, the Architectural Committee reviewed updated design plans in detail. The staff again recommended “approval for the evolving design development,” provided additional revisions' were submitted. The' designs were to include revisions to: signage, property line fehcing, lighting, and cooler condenser and kitchen exhaust placement. In light of public comments, particularly noting capacity concerns, the Committee’s discussions focused on the use of two proposed courtyards. After an intensive discussion, the Architectural Committee voted to approve the project within the design development phase on the condition that the drawings were revised to clarify .the use and occupancy of the courtyards. The application went back before the VCC on October 1, 2014. At the conclusion of the customary presentation, public comment session, and discussion, the VCC voted to defer action on the project until the Architectural Committee completed its review of the design development.

After deferral, the project went before the Architectural Committee two more times, on October 14 and December 9, 2014. On October 14, the Committee conceptually . approved ' the project for the third time, requiring more revisions and a preliminary approval of the occupancy load from the State Fire Marshall. Meanwhile, at the direction of the VCC, an application to re-subdivide the two lots into one single lot was filed on November 18, 2014, with the New Orleans City Planning Commission. On December 9, the Architectural Committee unanimously voted to approve the proposal and forwarded the project to the VCC for approval.' '

Finally, on January 7, 2015, after another meeting, the VCC voted to approve the project, provided that the use of umbrellas on the rooftop canopy |4would be strictly prohibited. Additionally, the VCO voted to forward a favorable recommendation to the CPC for approval of-the re-subdivision. After two public hearings, the CPC approved the minor re-subdivision.

The decision of the VCC was appealed to the New Orleans City Council. On March 12, 2015, after a lengthy public bearing, wherein the executive director of the VCC provided a Property Summary report, the City Council voted to deny the relief sought in the appeal. On April 9, 2015, the City Council adopted written reasons for denying the appeal, citing to the VCC staff report in support.

The Appellants appealed the City Council and the CPC’s administrative decision's to the trial court. On appeal, the trial court affirmed’ the City’s decisions and denied the relief requested. This timely appeal followed.

STANDARD OF REVIEW

The general authority for local government to regulate land use is conferred by La. Const. Art. 6, § 17, which provides in part:

Subject to.uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement those regulations; (3) review decisions of any such commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures.

Land use is subject to the police power of various governing bodies, and the courts will not - interfere with the decisions of these bodies unless it is clear that their action is without any relation to the public health, safety, or general,,welfare. See Palermo Land Co., Inc. v. Planning Com’n of Calcasieu Parish, 561 So.2d 482, 491 (La. 1990); Apasra Properties, LLC v. City of New Orleans, 09-0709, p. 8 (La.5 App. 4 Cir. 2/11/10), 31 So.3d 615; 621; and K.G.T. Holdings, LLC v. Par. of Jefferson, 14-872, p. 6 (La. App. 5 Cir. 3/25/15), 169 So.3d 628, 632, writ denied, 15-0810 (La. 6/19/15), 172 So.3d 652.

“In reviewing [land use] decisions of public bodies [the City of New Orleans through the City Council and the City Planning Commission in the instant case], courts will not interfere with the functions of these bodies in the exercise of the discretion vested in them unless such bodies abuse this power by acting capriciously or arbitrarily.” Herman v. City of New Orleans, 14-0891 (La. App. 4 Cir. 1/21/15), 158 So.3d 911, 915 (quoting Lake Terrace Prop. Owners Ass’n v. City of New Orleans, 567 So.2d 69, 74 (La. 1990)); see also, Palermo, 561 So.2d at 492; Tucker v. City Council for City of New Orleans, 343 So.2d 396, 399 (La. App. 4th Cir. 2/15/77), writ denied sub nom., 345 So.2d 56 (La. 1977)(where this Court found that judicial review of action of a local governing body in reversing or modifying a decision of a historic district commission is limited to deciding whether the governing body of the subdivision acted reasonably), and La. R.S. 33:101.1 (stating the same standard of review for a governing authority’s decision regarding a re-subdivision). “Generally, ‘capriciously’ has been defined as a conclusion of a commission when the conclusion is announced with no substantial evidence to support it, or a conclusion contrary to substantiated competent evidence.” Herman, 158 So.3d at 915-16. “The word ‘arbitrary’ implies a disregard of evidence or the proper weight thereof.” Id. at 916.

1 sA challenge to a land use decision in Louisiana is a de novo proceeding on the issue of whether the result of the legislation is arbitrary and capricious, and therefore a taking of property without due process of law. See Mannino’s P & M Texaco Serv. Ctr., Inc. v. City of New Orleans, 15-0109, pp. 3-4 (La. App. 4 Cir. 8/19/15), 173 So.3d 1186, 1189 (citing Palermo, 561 So.2d at 492). Whether an ordinance bears the requisite relationship to the health, safety, and welfare of the public is a factual question which must be determined from the evidence in the record. Id. Legislative acts are presumed valid and the burden rests on the person challenging the act to establish by a preponderance of the evidence that the decision by the governmental body has no substantial relationship to public health, safety, morals, or general welfare of the municipality. Id. (citing Palermo, 561 So.2d at 493).

Appellants assert that the trial court applied the wrong standard of review when applying the arbitrary and capricious standard. Although they assert that there is a higher standard set forth in La. R.S, 25:746, there is nothing in the plain language of La. R.S. '25:746 that provides a standard of review different from the arbitrary and-capricious standard enunciated in the well settled law and jurisprudence. Rather, .the statute sets forth considerations to be made by the trial court to ensure that the governing body’s decision comports with the essential duties and purpose of the commission, which - is to preserve the character of the View Carré, as provided in the Louisiana Constitution.

|7LAW AND ANALYSIS

The Appellants seek review of. two administrative decisions rendered by the City of New Orleans, through. the City Council and the CPC. The Appellants raise numerous assignments of error, which involve three primary issues: 1) whether the City Council acted arbitrarily and capriciously in voting to approve . Esplanade Nola’s application for renovation and “change of use”; 2) whether, the CPC acted arbitrarily and capriciously in approving the re-subdivision of Esplanade Nola’s two lots; and. 3) whether the trial court wrongfully excluded relevant evidence..

CITY COUNCIL DECISION

First, the Appellants challenge the VCC and the City Council’s decision to approve Esplanade Nola’s application for renovation and “change of use.” Appellants raise two arguments regarding this’approval: 1) the VCC’s approval went beyond its authority, and 2) the VCC and the City Council violated its constitutional mandates to protect the Vieux Carré. Accordingly, they submit that .the decision was arbitrary and capricious.

First, the Appellants argue that the VCC lacked authority to approve a change of use from vacant to restaurant, which is under the exclusive purview of the City Council. However, as urged by the City of New Orleans, the properties at issue were zoned Vieux Carré Commercial — 2 (VCC-2), which allows for more intensive commercial uses. As such, the properties at issue were already zoned and approved for use as a “standard restaurant,” pursuant to the New Orleans Comprehensive Zoning Ordinance (CZO). Therefore, it was unnecessary for the City Council to approve a change of use.

^Nevertheless, the record reflects that the VCC’s “change of use” hearing was held in conjunction with the conditions set forth in Rule 8.1 of the CZO, which requires an applicant to obtain a special permit from the VCC to continue or change use, when a change in exterior appearance is also contemplated. Thus, we find that the VCC was within its authority to permit a change of use from vacant to restaurant as it pertains to the architectural safeguards and conditions set forth in Rule 8.1.

Next, the Appellants argue that both the VCC and the City Council violated its constitutional mandates. The Appellants contend that the VCC violated its constitutional duty to protect the quaint and distinctive character of the Vieux Carré by allowing a change of use and detrimental alterations to the property. The Appellants further contend that the City Council did not base its decision on any affirmative evidence; rather it adopted the VCC’s staff report.

This Court, in Apasra Prop., LLC, recognized that the VCC has the constitutional authority and exercises state police power to regulate property within the Vieux Carré for the purpose of historic preservation. Id., 09-0709, p. 8, 31 So.3d at 621. The original VCC was established by City ordinance in 1925 to preserve those Vieux Carré structures of special historic interest whose old, quaint, |fland unusual architectural construction made them objects of special interest. However, initially, the VCC lacked any statutory authority to effectuate preservation of these structures. Recognizing this impediment and the historical and architectural importance of the Vieux Carre, 1921 La. Const. art. XIV, § 22(A) was amended, authorizing the New Orleans City Council to create the current VCC. See City of New Orleans v. Bd. of Dir. of the Louisiana State Museum, 98-1170, p. 2 (La. 3/2/99), 739 So.2d 748, 750.

La. Const, art. XIV, § 22(A), as amended, was divided into six sections entitled: creation and membership, purpose, definition of boundaries, tax exemption for certain buildings, acquisition of buildings, and duties of the commission. The amendment provided in pertinent part:

Section 22(A). Creation; membership. The Commission Council of the City of New Orleans is hereby authorized to create and organize a Commission to be known as the Vieux Carre Commission, to be appointed by the Mayor of said City with the advice and consent of the its Commission Council....
Purpose. The said Commission shall have for its purpose the preservation of such buildings in the Vieux Carre section of the City of New Orleans as, in the opinion of said Commission, shall be deemed to have architectural and historical value, and which buildings should be preserved for the benefit of the people of the City of New Orleans and the State of Louisiana, and to that end the Commission shall be given such powers and duties as the Commission Council of the City of New Orleans shall deem fit and necessary.
Vieux Carre Section defined ....
Buildings; tax exemption; preservation ....
Buildings; acquisition ....
Duties of commission. Hereafter and for the public welfare and in order that the quaint and distinctive character of the Vieux Carre section of the City of New Orleans may not be injuriously affected, and in order that the value to the community of those buildings having architectural and historical worth may not be impaired, and in order that a reasonable degree of control may be exercised over the | inarchitecture of private and semi-public buildings erected on or abutting the public streets of said Vieux Carre section, whenever any application is made for a permit for the erection of any new building or whenever any application is made for a permit for alterations or additions to any existing building, any portion of which is to front on any public street in the Vieux Carre section, the plans therefor, so far as they relate to the appearance, color, texture of materials and architectural design of the exterior thereof shall be submitted, by the owner, to the Vieux Carre Commission and the said Commission shall report promptly to the Commission Council its recommendations, including such changes, if any, as in its judgment are necessary, and the said Commission Council shall take such, action as shall, in its judgment, effect reasonable compliance with such recommendations, or to prevent any violation thereof.

La. Const. art. XIV, § 22(A)(1921) (emphasis added). See also City of Neiv Orleans, supra at pp. 2-3, 739 So.2d at 750-751. The Louisiana Constitution of 1974 retained the authority for the Vieux Carre Commission (VCC) in Art. VI, § 17. Apasta Properties, LLC, 09-0709, p. 8, 31 So.3d at 621. La. R.S. 25:746(B)(7) defines the “quaint and distinctive character of a historic preservation district” to include: “the historic or traditional ambiance of the district, the historic ‘tout ensemble’ of the district, the old-fashioned or traditional neighborhood quality of the district, and the lighting and traditional architectural styles and details of the district.”

Appellants maintain that the VCC’s decision was detrimental to the “tout ensemble” of the French Quarter. However, the issue of whether the character or charm of á neighborhood has been harmed is purely subjective. See Vieux Carre Prop. Owners, Residents & Assocs., Inc. v. Hotel Royal, L.L.C., 09-0641, p. 4 (La. App. 4 Cir. 2/3/10), 55 So.3d 1, 7, on reh’g (1/5/11), writ denied, 11-0258 (La. 4/29/11), 62 So.3d 112. And, neither the Appellants, nor this Court, are permitted Into substitute their own judgment for that of the VCC. See French Quarter Citizens For Preservation of Residential Quality, Inc. v. New Orleans City Planning Comm’n, 99-2154, p. 3 (La. App. 4 Cir. 4/12/00), 763 So.2d 17, 18-19.

•• Contrary to Appellant’s argument, the record reflects that the VCC’s decision was thoroughly considered in contemplation of its purpose and reasonably related to the public health, safety or general welfare: to protect the character, environment, and history of the Vieux Carré. Aside -from the three previous applications, the proposal set forth in Esplanade Nola’s fourth application went before the Architectural Committee of the VCC four times and the VCC three, times, before it received the final design approval of the VCC. During that time, the architectural design, plans for capacity, signage, lighting, and fencing were extensively addressed, re-designed and re-submitted to conform with the design guidelines ahd mandates set forth by the VCC. At each meeting, the staff made a presentation and the public was given an opportunity to express its concerns.

The staff report and meeting minutes provide a detailed history concerning the design elements and various changés made to the design before its final approval. First, the plans reveal that the architectural changes associated with this project are relatively minor and do not change the historical character of the buildings. In addition, the properties were rated brown and yellow, meaning their contribution to the historical character of the neighborhood is low. Despite these facts, the VCC required numerous revisions to the lighting, fencing, signage etc. in order to preserve the original architecture of the buildings and protect the historic character and tout ensemble of the French Quarter.

The members of the public were primarily concerned with topics related to capacity and noise, particularly as it related to the ■ use of two courtyards. Despite I ^acknowledging that the VCC does not address capacity issues, the Architectural Committee required- the applicant to submit revised drawings clarifying the use of the courtyards and mandated preliminary approval of the occupancy load from the state Fire Marshall in response to public concern. The Architectural Committee then forwarded the application to the VCC.'The staff report'and meeting, minutes from the VCC’s final hearing reveal that the VCC thoroughly reviewed the application in light of its constitutional dutiés and Rule 8.1 of the CZO, ultimately approving the application. Specifically, banning umbrellas from the rooftop canopy demonstrates the VCC’s particular attention to preserving the character ahd tout ensemble of the French Quarter.

Though the Appellants allege that the VCC did not comply with its own mandates and design guidelines, they fail to cite to any specific design element or alteration that violated the VCC mandates or guidelines. Interestingly, the only evidence offered in support of the Appellant’s position concerned potential violations of the noise ordinance and occupancy concerns. Notwithstanding that such allegations are purely conjecture, the VCC, which is primarily tasked with architectural and historical preservation, does not provide oversight for violations of noise and occupancy laws. Therefore, such complaints should be made with the. appropriate administrative agency, at the appropriate time. .

Similarly, the Appellants argue that the City Council’s decision was arbitrary and capricious, claiming the decision was made without evidence. This contention- is unsupported by the record. Specifically, the record reflects that Appellants submitted a brief with exhibits and were afforded an opportunity to present public opposition at the Council hearing, The record also demonstrates that the VCC provided its staff report to the City Council, made a presentation, and | ^responded to questions in conjunction with the report at the Council meeting. The City Council relied on the staff recommendation and ultimately adopted the VCC staff report as its reasons for affirming the VCC’s decision.

Not only is Esplanade Nola’s final proposal to conduct minor renovations consistent with the design guidelines and functions of the VCC and Rule 8.1 of the CZO to preserve the quaint and distinctive character of thé Vieux Carré; it serves to restore two abandoned and deteriorating structures that pose a safety threat and present an eyesore at the gateway of the French Quarter. Even when liberally construing the evidence in favor of preserving the quaint and distinctive character of the district, the decision to approve Esplanade Nola’s application is supported by the record. Thus, we cannot say that the VCC acted arbitrarily or capriciously. Likewise, we cannot say that the City Council was arbitrary or capricious in voting to affirm the VCC’s recommendation.

CITY PLANNING COMMISSION DECISION

Second, the Appellants assert that the CPC’s decision to re-subdivide the two lots was arbitrary and capricious because it wás inconsistent with the City’s Master Plan. They further assert that the appeal rules for the Commission violated the State and Federal Constitutions.

• As a preliminary matter, the Appellants maintain that proper public notice of the CPC hearing was not given. However, as the trial court pointed out, the record does not support this contention. Moreover, the Appellants were not prejudiced in any way as they appeared at the meeting and effectively expressed their opposition to the re-subdivision. To that end, Appellants also complain that their opportunity for public comment was limited, despite the fact that the -CPC considered the re-subdivision at two separate meetings and allowed public participation in both | ^meetings, Not only was there an opportunity for comment at both meetings; members of the public were given an additional opportunity to submit written comments to the CPC.

Relative to consistency with the City’s Master Plan, the Appellants argue that th'e re-subdivision is out of character and inconsistent with the tout ensemble of the surrounding historic residential neighborhood. They further argue that the CPC’s decision was unsupported by the evidence.

In terms, of future land use', the. City’s Master Plan allocates - these two lots as “Mixed-Use Historic Core.” The Master Plan sets the following parameters regarding these types of properties:

MIXED-USE HISTORIC CORE
Goal: Increase convenience and walka-bility for neighborhood residents. .and visitors within and along edges of historic core neighborhoods,
Range of Uses: A mixture of residential, neighborhood .business, an visitor-oriented businesses. Uses .may be combined horizontally or„ vertically, and some structures may require. ground floor retail with residence or offices on upper floors. In some areas where current or former industrial use is verified, existing buildings may be appropriate for craft and value added industry.
Development Character: The density, height, and mass of .new development will be consistent with the character and tout ensemble of the surrounding historic neighborhood. Appropriate transitions will be provided to surrounding residential areas.

The record reflects that the lot consolidation was proposed to address issues related to the building code and fire rating. The CPC staff report reveals that the CPC conducted a comprehensive comparison of lot sizes in the area. Contrary to Appellants’ contention, the report noted that lot consolidation within the Vieux Carré was not out of the ordinary and occurred “with some regularity.” It also provided a table of lot consolidations in the Vieux Carré from 2010 — present, which reflected that seven out of eight were approved. Further, the CPC’s research 115revealed that there were approximately thirty lots in the VCC-2 district and around thirteen in the immediately surrounding residential districts that were larger than the lot proposed in this case.

Specifically in response to public comments, the CPC addressed concerns regarding the re-subdivided lots consistency with the Master Plan and concluded:

This proposal to consolidate the two lots into a single lot is consistent with this Mixed-Use Historic Core land use designation. As discussed in this report, the proposed lot’s size and shape is consistent with the established lot pattern in the area. While the proposed use of the site by a restaurant is not the immediate subject of this report, the staff believes it is also consistent with the Mixed-Use Historic Core future land use designation. Restaurants, which would presumably serve a mix of neighborhood residents and visitors, are within the range of uses intended for the Mixed-Use Historic Core designation. The restaurant proposal also adheres to the Mixed-Use Historic Core designation’s development character requirements, as the restaurant is to occupy two existing historic structures and the proposal has been approved by the Vieux Carré Commission.

The CPC considered all aspects of the mixed-use designation set forth in the City’s Master Plan, which included both residential and commercial factors. Such considerations relate to the general welfare of the public and, thus, provided a rational basis for the CPC’s decision to approve the re-subdivision. Accordingly, we do not find the CPC’s decision on the re-subdivision to be arbitrary, capricious, or an abuse of discretion.

Turning to the issue on the CPC’s appellate process, the Appellants claim that the CPC’s regulation that permits only applicants to appeal minor subdivision decisions to the City Council violates the due process and equal protection provisions of the United States and Louisiana Constitutions. La. C.C.P. art. 1880 provides that if a municipal ordinance is alleged to be unconstitutional, “the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.” While the attorney general is not a necessary party that | lfimust be joined in the suit, he must be served in actions seeking a declaration of unconstitutionality. Vallo v. Gayle Oil Co., Inc., 94-1238, p. 6 (La. 11/30/94), 646 So.2d 859, 864; see also Farmco, Inc. v. W. Baton Rouge Par. Governing Council, 06-0073, 2006 WL 3109696, at *3 n. 7 (La. App. 1 Cir. 11/3/06), writ denied, 06-2841 (La. 2/2/07), 948 So.2d 1083.

In this case, the attorney general was not notified and served with a copy of the Appellants’ petition. Since the Appellants did not comply with the correct procedure of notifying the attorney general of his challenge to the constitutionality of the regulation, we find that this issue is not properly before the Court on Appeal.

Nevertheless, the rule does not treat the Appellants’ different from other similarly situated individuals, i.e. neighboring residents. Moreover, there is a rational basis for treating neighboring residents different from an aggrieved applicant, whose property rights are directly impacted. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); see also Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 824 (5th Cir. 2007) (“To establish such a [‘class of one’] claim, the plaintiff must show that (1) he or she was treated differently from others similarly situated and (2) there was no rational basis for the disparate treatment.”) (citation omitted). Further, La. R.S. 33:101.1 affords Appellants judicial review of the CPC’s decision as demonstrated by this appeal.

EXCLUDED EVIDENCE

Finally, the Appellants assert that the trial court wrongfully • excluded relevant evidence that was not contained in the appellate record. On appeal to the trial court, the Appellants attempted to illicit discovery and admit evidence of the prior applications filed by Esplanade Nola. Appellants argue that they were 117entitled to a de novo trial pursuant La. R.S. 25:746. Specifically, they point to La. R.S. 25:746(D)(2), which, they allege, requires the trial court to take proof as in ordinary cases. We find nothing in the plain reading of that statute that provides for a new trial. The trial court pleadings filed by Appellants confirm that Appellants were filing an appeal from two administrative decisions. Consistent with La. R.S. 25:746(D), the trial court took proof as it would in an ordinary appeal of a land use case involving an administrative decision. Therefore, the trial court was confined to the record before the agency. Fritzner v. City of New Orleans, 12-1617, p. 4 (La. App. 4 Cir. 5/22/13), 116 So.3d 945, 947 (in cases involving judicial review of an administrative agency’s decision, the trial court is sitting as an appellate court and not exercising its original jurisdiction; therefore, the trial court’s review is confined to the record before the agency).

Nevertheless, assuming arguendo that the trial court erred in excluding evidence relative to the prior applications, Appellants failed to proffer the evidence. When the trial judge rules evidence is inadmissible, a proffer (offer of proof) can be made. La. C.C.P. art. 1636. The purpose of mandating the trial court to allow the excluded evidence to be proffered is so that “the testimony (whatever its nature) is available for appellate review.” Ohm Lounge, L.L.C. v. Royal St.. Charles Hotel, L.L.C., 10-1303, p. 10 (La. App. 4 Cir. 9/21/11), 75 So.3d 471, 477 (citation omitted). It is incumbent upon the party who contends his evidence was improperly excluded to make a proffer, and if he fails to do so, he cannot contend such exclusion is error. Id.

| iSIn the instant case, Appellants sought to admit a “handful” of documents related to the prior applications. When the trial court refused, Appellants requested to proceed, asking to “proffer them if they ever come up.” The record is devoid of any such proffer from Appellants. Accordingly, they are precluded from raising this issue on appeal. Ohm Lounge, L.L.C., supra.

CONCLUSION

For the foregoing reasons, ,we do not find any error in the trial court’s finding that the City’s decisions, when approving Esplanade Nola’s requests for a re-subdivision and remodel, were not arbitrary or capricious. Accordingly, the trial court’s judgment denying the relief requested is affirmed.

AFFIRMED

. LOBRANO, J., CONCURS IN THE RESULT .

      . The record reflects that the 1040 Esplanade Avenue address is also identified as 1324 North Rampart Street.

      . The property identified as 1036-38 Esplanade Avenue formerly operated as Villere’s Pharmacy. The property identified as 1040 Esplanade Avenue operated as the gasoline service station.

      . The minutes from the August 26, 2014, Architectural Committee meeting appear to re-fleet the incorrect date. However, the recording from the meeting confirms that the meeting occurred on August 26, not August 12, as reflected by the minutes.

      .The minutes from the VCC meeting incorrectly reflect the date of the meeting as occurring on January 7, 2014.

      . Appellants also attempted to appeal the City Planning Commission’s ruling; however, the City Council notified them that only applicants were entitled to appeal rulings on minor re-subdivisions to the Council.

      . La R.S. 33:101.1 states, in pertinent part: Except as otherwise provided in this Sub-part, the act of approving or disapproving a subdivision plat is hereby declared a legislative function involving the exercise of legislative discretion by the planning commission, based upon data presented to it; provided that any subdivision ordinance enacted by the governing authority of a parish or municipality or the acts of the planning commission, or planning administrator shall be subject to judicial review on the grounds of abúse of discretion, unreasonable exercise of police powers, an excessive use of the power herein granted, or denial of the right of due process. ■

      . When reviewing an administrative decision, the district court functions as an appellate court. Since no deference is owed by the appellate court to the district court’s fact fínd-ings or legal conclusions, the appellate court need only review the findings and decision of the administrative agency. Sylvester v. City of New Orleans Through Code Enf't & Hearings Bureau, 17-0283, 228 So.3d 285, 287-88 (La. App. 4 Cir. 10/11/17), reh’g denied, (10/20/2017).

      . It appears that the CZO was subsequently amended. As a result of the amendments, former Rule 8.1 is now Rule 2.10. At the time of the VCC and City Council hearings, Rule 8.1 stated, in pertinent part:
      Where any change in exterior appearance is contemplated, the Vieux Carré Commission shall hold a hearing, and if it approves such change, it shall issue a special permit to continue the same use, or for any other use not otherwise prohibited in this district subject to the following conditions and safeguards:
      1. The historic character of the Vieux Carré shall not be injuriously affected.
      2. Signs which are garish or otherwise out of keeping with the character of the Vieux Carré shall not be permitted.
      3. Building designs shall be in harmony with the traditional architectural character of the Vieux Carré.
      4. The value of the Vieux Carré as a place of unique interest and character shall not be impaired.

      . The, tout ensemble describes the concept that preservation efforts must be directed not only at the antiquity of the buildings of the French and Spanish quarter, but also at the sum total effect of the Vieux Carre, buildings plus environment. See City of New Orleans v. Pergament, 198 La. 852, 5 So.2d 129 (1941).

      . La. R.S. 25:746(D)(2) states,in pertinent part: "A suit filed under Paragraph (1) of this Subsection shall be tried as a summary proceeding. The court shall take proof as in ordinary cases.”

      . Moreover, the legislative materials and discussions provided by the Appellants confirm that La. R.S. 25:746 was simply intended to provide a mechanism for an' appeal since a new suit could always be filed. Particularly, the amendments to the bill reflect that the proposed law initially provided for a de novo trial; however, that language was deleted from the final bill.


author: Judge Regina Bartholomew-Woods

text:
    AUTOMOTIVE EXPERTS, LLC v. JOE JOHNSON, INC. d/b/a Joe Johnson Chevrolet
    NO. 2017-CA-0664
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 13, 2017
    Matthew A. Sherman, Preston L. Hayes, CHEHARDY SHERMAN WILLIAMS MURRAY RECILE STAKELUM & HAYES, L.L.P., One Galleria Boulevard, Suite 1100, Metairie, LA 70001, COUNSEL FOR PLAINTIFF/APPELLEE
    Jeanne Camille Comeaux, Carroll Devil-lier, Jr., Danielle L. Borel, BREAZEALE, SACHSE & WILSON, LLP, P.O. Box 3197, Baton Rouge, LA, 70821, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins,. • Judge Regina Bartholomew-Woods) ■
   Judge Regina Bartholomew-Woods

I ¶ This case comes before this Court on appeal of the district court’s April 20, 2017 judgment granting plaintiff, Automotive Expert, LLC’s, motion for partial summary judgment on the issue of breach of contract. On August 18,2017, Plaintiff filed a “Motion to Dismiss appeal for Lack of Jurisdiction.” Defendant filed an opposition thereto on August 28, 2017.

Plaintiffs motion to dismiss argues that the judgment in question is not a final judgment because it was not designated a final, immediately appealable judgment as required by La.C.C.P. art. 1915(B)(1). Defendant argues the judgment is indeed final pursuant to La.C.C.P. art. 1915(A)(5), as the issue of liability has" been decided and only questions regarding damages remain. Alternatively, Defendant suggests this Court has discretion to certify the judgment as final or appealable, or to convert the appeal into a writ application.

The relevant provision, ■ La.C.C.P. art. 1915 provides, in pertinent párt, as follows:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
I r(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
B.(l) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against á party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or'intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by .the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of. the judgment adjudicating all the claims and the rights and liabilities of all the parties.

There is no dispute that the judgment in question lacks the necessary designation as a “final judgment by the court after an express determination that there is no just reason for delay.”

This Court addressed a similar scenario in Diecidue v. Tittle, 2012-0903, pp. 4-5 (La.App. 4 Cir. 8/14/13), 122 So.3d 1143, 1145-46, which reasoned and held as follows:

Here, the motion for partial summary judgment was granted as to the liability of [defendant] for legal malpractice pursuant to Louisiana Code of Civil Procedure article 966(E), leaving only the issue of damages to be tried. Therefore, by virtue of the literal language of Louisiana Code of Civil Procedure article 1915(A)(3), the judgment is not immediately appealable in the absence of a designation of finality pursuant to art. 1915(B). In Crescent City Physicians, Inc. v. Desse, 2004-1280 (La. 10/1/04), 883 So.2d 963, the 3Louisiana Supreme Court reversed this court and dismissed the appeal of a partial summary judgment on the issue of liability. In his concurrence, Chief Justice Calogero noted that La. C.C.P. art. 1915(A)(5) “is not applicable in this case because the issue of liability was not tried separately by the court Instead, the trial court granted a partial summary judgment on the liability issue pursuant, to ... art. 966(E).” Id. (Calogero, C.J., concurring).
Accordingly, we find that absent a designation of finality pursuant to Louisiana Code of Civil Procedure 1915(B), the partial summary judgment rendered by the trial court on the issue of liability is not appealable. Because we lack jurisdiction, we dismiss the instant appeal.

Based on the foregoing, we likewise find that this Court lacks jurisdiction, and we dismiss the instant appeal without prejudice.

APPEAL DISMISSED

JENKINS, J., CONCURS IN THE RESULT


author: Judge Rosemary Ledet

text:
    STATE of Louisiana v. Monotor M. PETE
    NO. 2017-KA-0442
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 13, 2017

      Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Scott G. Vincent, Assistant District Attorney, ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR AP-PELLEE/THE STATE OF LOUISIANA
    Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, P. O. Box 2333, Marrero, LA 70073, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet)
   Judge Rosemary Ledet

liln this criminal appeal, the defendant, Monotor Pete, seeks review of his conviction and sentence for failure to register as a convicted sex offender. For - the reasons that follow, we affirm.

STATEMENT OF THE CASE AND THE FACTS

Louisiana law requires convicted sex offenders to register with local law enforcement authorities and to notify the communities in which they reside of their presence. See La. R.S. 15:540, et seq. (the, “Sex Offender Statutes”). Mr. Pete’s obligation to register and to notify arises out of his November 7, 2002 conviction for felony carnal knowledge of a juvenile. State v. Pete, 03-0694, p. 1 (La. App. 4 Cir. 9/24/03), 857 So.2d 1107, 1108.

After serving five years of a six-year sentence, Mr. Pete was released on December 25, 2007, and returned to Orleans Parish. As of March 5, 2008, Mr. Pete was substantially compliant with the registration and notification requirements of the Sex Offender Statutes.

| aFive years from the date of his previous notification, Mr; Pete was required under the Sex Offender Statutes to re-riotify. On March 4, 2013, Mr. Pete appeared at the sex-offender-registration office. He was. advised in writing of the five-year re-notification requirement (for which he signed, not with his name, but with the phrase “under duress”) and given until March 27, 2013, to comply. Mr. Pete failed to comply; an arrest warrant issued, and he was arrested on June 20, 2014. The following day, Mr, Pete posted bond and was released from custody.

Subsequently, Mr, Pete was charged under La. R.S. 15:542.1.4(A)(1) with one count of failure to register and to notify. At arraignment, Mr. Pete pled not guilty. On April 22, 2015, Mr. Pete’s bail was increased; and he was remanded to custody. After a two-day trial, the- jury found him guilty as charged. On January 10, 2017, the district court sentenced Mr. Pete to ten years at hard labor without benefit of parole, probation, or suspension of sentence. This appeal followed.,

DISCUSSION

Errors Patent

Having reviewed the record for errors patent, we find none.

Assignment of Error

In his sole assignment of error, Mr. Pete claims that the sentence the district court imposed is excessive in violation of Art. I, § 20 of the Louisiana Constitution Isof 1974. The State points out, citing La. C.Cr.P. art. 881.1(E), that Mr. Pete failed to preserve for , appellate review his exces-siveness claim because he neither objected to the sentence at imposition nor filed a motion to reconsider. Mr. Pete replies that this failure was the result of ineffective assistance of counsel and thus should be excused.

“Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of exeessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” La. C.Cr.P. art. 881.1(E). Strictly construing La. C.Cr.P. art, 881.1(E), this court consistently has held that the failure to object to a sentence at imposition or to file a motion to reconsider sentence will preclude a defendant from raising on appeal even a claim of constitutional exces-siveness. See State v. Robinson, 98-1606, p. 9 (La. App. 4 Cir. 8/11/99), 744 So.2d 119, 125 (noting that “this court has held ... that the failure to object to the sentence as excessive at the time of sentencing or to file a written motion to reconsider sentence precludes appellate review of the claim of excessiveness”).

Nevertheless, when, as in this case, a defendant claims that the failure to preserve an excessiveness claim for appellate review.. was the result of ineffective |4assistance of counsel, this court has reached the merits of the excessiveness claim, albeit indirectly, in addressing the ineffective assistance claim. See State v. Batiste, 06-0875, p. 18 (La. App. 4 Cir. 12/20/06), 947 So.2d 810, 819 (reasoning that “in order to determine if the ineffective assistance of counsel claim has merit, we must look to see if the appellant’s [unpreserved] excessive sentence claim has merit”). Accordingly, we do so here.

A criminal defendant has the right to the effective assistance of counsel at every “critical stage” of the proceedings. See Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 2085, 173 L.Ed.2d 955 (2009). Sentencing is a critical stage. See Lafler v. Cooper, 566 U.S. 156, 165, 132 S.Ct. 1376, 1385-86, 182 L.Ed.2d 398 (2012) (observing that “[t]he precedents also establish that there exists a right | Bto counsel during sentencing in both noncapital .... and capital cases.”) (internal citations omitted). The filing and litigating of a post-trial motion necessary to preserve an issue for appellate review is also a critical stage. See Johnston v. Mizell, 912 F.2d 172, 176 (7th Cir. 1990) (observing that filing and litigating of “a post-trial motion ... is a critical stage in criminal proceedings” when such motion “is necessary to preserve an issue for appellate review”).

“In order to prevail [on an ineffective assistance claim], the defendant must show both that: (1) counsel’s performance was deficient; and (2) he was prejudiced by the deficiency.” State v. Brown, 16-0965, p. 18 (La. App. 4 Cir. 5/3/17), 219 So.3d 518, 531 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Mr. Pete argues that he received ineffective assistance of counsel because, but for counsel’s failure to object to his sentence at imposition or to file a motion to reconsider sentence, this court would have jurisdiction to review his excessiveness claim. For this argument to have merit, Mr. Pete must first establish that his sentence is constitutionally excessive.

A trial court has broad discretion in imposing an appropriate sentence. State v. Trahan, 425 So.2d 1222, 1227 (La. 1983). In reviewing a given sentence, the question for an appellate court is not “whether another sentence might have been more appropriate but whether the trial court abused [that] broad sentencing discretion.” State v. Walker, 00-3200, p. 2 (La. 10/12/01), 799 So.2d 461, 462 (citing State v. Cook, 95-2784, p. 3 (La. 5/31/96), 674 So.2d 957, 959). Thus, the Louisiana Supreme Court “has repeatedly emphasized that sentence review under the Louisiana constitution does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is more appropriate in a given case.” State v. Savoy, 11-1174, p. 5 (La. 7/2/12), 93 So.3d 1279, 1283 (citing State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; State v. Cook, 95-2784, p. 3 (La. 5/31/96), 674 So.2d 957, 959; State v. Humphrey, 445 So.2d 1155, 1165 (La. 1984)). When, as in this case, the sentence imposed is within the statutory limits and the district court has considered the factors set forth in La. C.Cr.P. art. 894.1, the sentence “should not be set aside absent a manifest abuse of that discretion.” State v. Trahan, 425 So.2d 1222, 1227 (La. 1983).

“[I]ntertwined with [a] review of a sentence for excessiveness is [a] review of the record to ensure that the trial court complied adequately with La. C.Cr.P. art. 894.1 and accorded proper weight to all relevant sentencing factors.” State v. Smith, 433 So.2d 688, 698 (La. 1983). Indeed, this court has described the factors set forth in La. C.Cr.P. art. 894.1 as an “integral part of the constitutionally excessive sentence analysis.” State v. Robinson, 98-1606, p. 12 (La. App. 4 Cir. 8/11/99), 744 So.2d 119, 126.

Here, the district court complied with La. C.Cr.P. art. 894.1. In sentencing Mr. Pete, the district court expressly considered the following statutory factors:

• that Mr. Pete is in need of a custodial environment that can be provided most effectively by his commitment to the Department of Corrections, La. C.Cr.P. art. 894.1(A)(2);
• that a lesser sentence would deprecate the seriousness of Mr. Pete’s crime, La. C.Cr.P. art. 894.1(A)(3); and
• that Mr. Pete has a considerable criminal history, La. C.Cr.P. art. 894.1(B)(28).

|7In addition to these statutory factors, the district court considered several other factors that the jurisprudence has recognized as appropriate sentencing considerations.

The district court stated that “overriding the Court’s consideration in this case is the fact that this is a sexual offense involving a relatively young minor while the defendant was at an age that is certainly adult age.” The seriousness of a predicate offense is an appropriate sentencing consideration. The district court also stated that it was “influenced by the jury’s verdict ... [b]ut, more importantly, by what it heard during the trial,” and that “[wjhether Mr. Pete agrees with the law or disagrees with the law, it is the law and it must be upheld and maintained and abided by and Mr. Pete failed to do that,” Taken together, the district court’s statements indicate that it found that Mr. Pete had willfully violated the Sex Offender Statutes and shown no remorse for having done so. A defendant’s intent and lack of remorse are appropriate sentencing considerations.

| sIn addition to the sentencing considerations articulated by the district court, we note an additional consideration that is apparent from the record: Mr. Pete’s willful violation of the Sex Offender Statutes presents “an undue risk that during the period of [registration he] will commit another crime.” La. C.Cr.P. art. 894.1(A)(1). That risk, in this case, is not theoretical; the record reflects that, at the time the district court imposed Mr. Pete’s sentence, Mr. Pete was also being prosecuted — before the same district court judge — for sexual battery of and indecent behavior with a six-year-old child. These offenses are alleged to have been committed during a period of non-compliance with the Sex Offender Statutes and while Mr. Pete was out of custody on bond in this case.

Because the record reflects both that the district court complied with La. C.Cr.P. art. 894.1 and that the sentence imposed is amply supported by the record, we inquire only whether Mr. Pete’s sentence is a manifest abuse of the district court’s sentencing discretion — ie., constitutionally excessive. A sentence is constitutionally excessive only if it “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” State v. Goode, 380 So.2d 1361, 1364 (La. 1980) (citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).

We cannot say that Mr. Pete’s sentence makes no measurable contribution to an acceptable goal of punishment. Mr. Pete’s willful violation of the Sex Offender Statutes demonstrates his belief that he is not bound to comply with the Sex 19Offender Statutes. His belief makes it considerably-more likely that,,if not in custody, he’will continue to violate the Sex Offender Statutes, frustrating the important purposes for which those laws were enacted. That being so, Mr. Pete’s sentence makes a measureable contribution to at least two acceptable goals of punishment — incapacitation and deterrence.

Nor can we say that Mr. Pete’s sentence is grossly out of proportion to the severity of his crime. During a period of non-compliance with the Sex Offender Statutes— and while on bond in this case — Mr. Pete is alleged to have committed a sexual battery'of and indecent behavior with a six-year-old child. These recidivist crimes are the very harm against which the Sex Offender Statutes are meant to protect. While we are mindful that “maximum sentences are ordinarily reserved for the most blameworthy offenders committing the most serious violations of the charged offense,” State v. Savoy, 11-1174, p. 4 (La. 7/2/12), 93 So.3d 1279, 1282, we cannot say that the sentence imposed in this case “shocks the sense of justice,” State v. Lobato, 603 So.2d 739, 751 (La. 1992). On the contrary, the sentence Imimposed in this case appropriately addresses both Mr. Pete’s failure to comply with the Sex Offender Statutes and the manifest risk to public safety that such failure presents.

Accordingly, we find that Mr. -Pete’s sentence is not excessive, that he therefore was not prejudiced by his counsel’s failure to object to his sentence at imposition or to file a motion to reconsider sentence, and that he therefore' did not receive ineffective assistance of counsel. The assignment of eiTor iswithout merit.

DECREE

■ For the forgoing reasons, Mr. Pete’s conviction and sentence are affirmed.

AFFIRMED

      . Pursuant to that conviction, Mr. Pete was required to register as a sex offender for a period of fifteen years after his release. See La. R.S. 15:544(A).

      . See La. R.S. 15:542 (registration requirements); La. R.S. 15:542.1(A)(1)-(2) (notification requirements).

      . See La. R.S. 15:542.1 (A)(2)(b) ("Those persons required to provide community notification pursuant to the provisions of this Section shall provide such community notification every five years from the date of the previous notification.").

      . While the record does not reflect the reason for this increase, we note that, on June 1, 2015, Mr. Pete, was- charged in a new case with sexual battery and indecent behavior— both - crimes allegedly committed against a six-year-old child on March 1-14, 2015, during a period when Mr. Pete was non-compliant with the Sex Offender Statutes and while Mr, Pete was out of custody on bond in this case,

      . Mr. Pete does not argue that his sentence is excessive in violation of -the Eighth Amend-meat to the United States Constitution. We note, however, that "Article I, § 20 affords no less, and in some respects more, prdtection than that available to individuals under the Cruel and Unusual Punishments Clause of the Eighth Amendment at the time of the adoption of our state constitution.” State v. Perry, 610 So.2d 746, 762 (La. 1992).

      .Indeed, this court has held that, even when a motion to reconsider sentence has been filed, a defendant is precluded from raising an excessiveness claim on appeal when the motion was not timely filed. See State v. Wilson, 06-0802, p. 3 (La. App. 4 Cir. 12/13/06), 2006 WL 6913031 (unpub.) (citing State v. Mosley, 03-1947 (La. App. 4 Cir. 4/14/04), 872 So.2d 1220).

      . The rationale underlying this approach was articulated by this court in State v. Paulson, 15-0454 at pp. 9-10 (La. App. 4 Cir. 9/30/15), 177 So.3d 360, 367:
      Generally, ineffective-assistance-of-counsel claims are more properly raised in an application for post-conviction relief where the district court can conduct a full eviden-tiary hearing on the matter, if one is warranted. See State v. Leger, 05-0011, p. 44 (La.7/10/06), 936 So.2d 108, 142; see also State v. Small, 13-1334, p. 13 (La. App. 4 Cir. 8/27/14), 147 So.3d 1274, 1283 .... A claim of ineffective assistance of counsel at sentencing, however, is not cognizable on collateral review, when, as here, the sentence imposed by the trial judge is within the authorized range'of the sentencing statutes. See State v. Thomas, 08-2912 (La. 10/16/09), 19 So.3d 466 ("relator’s claims that the court imposed an excessive sentence and that he received ineffective assistance of counsel at sentencing are not cognizable on collateral review”) (emphasis added). The Louisiana Supreme Court has held that La. C.Cr.P. art. 930.3, which sets forth the grounds upon which post-conviction relief may be granted, “provides no basis for review of claims of excessiveness or other sentencing error post-conviction." State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397, p. 2 (La.10/15/10), 45 So.3d 1030, 1031 (per curiam) (claim that counsel rendered ineffective assistance at habitual offender adjudication is not cognizable on collateral review so long as sentence imposed falls within range of sentencing statute).

      . See also, e.g., State v. Spencer, 14-0003, pp. 14-15 (La. App. 4 Cir. 10/8/14), 151 So.3d 816, 825; State v. Alverez, 13-1652, pp. 18-19 (La. App. 4 Cir. 12/23/14), 158 So.3d 142, 154-55; State v. Laneheart, 12-1580, pp. 9-10 (La. App. 4 Cir. 2/26/14), 135 So.3d 1221, 1228-29; State v. Bertrand, 04-1496, pp. 4-5 (La. App. 4 Cir. 12/15/04), 891 So.2d 752, 755-56; State v. Bunley, 00-0405, pp. 20-21 (La. App. 4 Cir. 12/12/01), 805 So.2d 292, 306-07; State v. Robichaux, 00-1234, pp. 7-8 (La. App. 4 Cir. 3/14/01), 788 So.2d 458, 465; State v. Robinson, 98-1606, pp.10-11 (La. App. 4 Cir. 8/11/99), 744 So.2d 119, 125-26.

      . The list of factors in La. C.Cr.P. art 894.1 is not exhaustive. See State v. Sims, 11-1447, p. 10 (La. App. 4 Cir. 12/12/12), 106 So.3d 709, 714 (citing Gail Dalton Schlosser, La.Crim. Trial Prac. § 26:3 (4th ed. 2005)).

      . A detailed recitation of the facts supporting Mr. Pete's predicate conviction is set forth in State v. Pete, 03-0694, pp. 1-3 (La. App. 4 Cir. 9/24/03), 857 So.2d 1107, 1108-09.

        .See State v. Mueller, 10-0710, p. 13 (La. App. 4 Cir. 12/8/10), 53 So.3d 677, 686 (quoting the sentencing court’s observation that "[b]oth of th[e] convictions [for which the defendant was required to register as a sex offender] involve children”; that ”[o]ne incident was with a known victim, his niece [sic], and her friend”; and that “the other incident occurred when he exposed himself to two children in different department stores”); see also State v. Muth, 13-1003, p. 7 (La. App. 5 Cir. 6/24/14), 145 So.3d 495, 500 (considering that “defendant’s underlying criminal offense involved a felony conviction for the molestation of a juvenile,” the factual basis for which was that “defendant, as a 29-year-old, engaged in sexual conduct with a 14-year-old”).

      . See State v. Bergeron, 12-71, p. 10 (La. App. 3 Cir. 10/3/12), 99 So.3d 90, 96 (quoting the trial court as observing that the defendant was "blatantly in violation of his obligation to register” because the defendant “knowingly violated [the Sex Offender Statutes]”); State v. Ruiz, 94-0541, p. 3 (La. App. 4 Cir. 12/15/94), 647 So.2d 1317, 1320 (finding lack of remorse to be an appropriate sentencing factor).

      . See State v. Burnette, 419 So.2d 835, 837 (La. 1982) (observing that a sentencing court’s discretion “is subject only to the constitutional limitations on excessive sentences and should not be disturbed absent manifest abuse”).

      . See State v. I.C.S., 13-1023, p. 9 (La. 7/1/14), 145 So.3d 350, 355 (observing that "[t]he purpose of the [Sex Offender Statutes] . is unequivocally set forth in La.Rev.Stat, 15:540, stressing the paramount governmental interest in protecting the community, aiding police in their investigation of sex offenders, enabling quick apprehension of sex offenders, and, ultimately, reducing the risk to public safety posed by sex offenders even after release”).

      . See State v. Strother, 09-2357 (La. 10/22/10), 49 So.3d 372, 382 (citing Ewing v. California, 538 U.S. 11, 25, 123 S.Ct. 1179, 1187, 155 L.Ed.2d 108 (2003), for the propo- . sition that "[a] sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation”).

      . See State ex rel. Olivieri v. State, 00-0172, p. 19-20 (La. 2/21/01), 779 So.2d 735, 747 (observing that the Sex Offender Statutes were “founded on the findings of the Legislature that this legislation was of paramount governmental interest because: (1) sex offenders pose a high risk of engaging in sex offenses, (2) sex offenders have a high incidence of recidivism, and (3) unless there was registration and community notification, sex offenders could remain hidden and thereby increase the risk to public safety”).

      .As of November 1, 2017, Mr. Pete is eligible to earn "good time” credit "at the rate of thirteen days for every seven days in custody served on the imposed sentence ...” La. R.S. 15:571.3(B)(1)(a). Assuming his good behavior, Mr. Pete will serve only thirty-five percent — forty-two months — of his sentence in custody. Those forty-two months will be further diminished by the period of time Mr. Pete spent in custody before the imposition of sentence. Ibid. (Citing La. C.Cr.P. art. 880). Although Mr. Pete was initially released on bond, Mr. Pete was remanded to custody (after his bail obligation was increased to $150,000.00) on-April 22, 2015; and Mr; Pete remained in custody through sentencing — a period of approximately twenty months. Thus, although Mr. Pete was sentenced to ten years on January 10, 2017, it is possible that he could be released from custody, as to this conviction, as early as 2018. See State v. Shaikh, 16-0750, p. 3 (La. 10/18/17), 236 So.3d 1206, 1209, 2017 WL 4681359,**5 (considering the portion of the sentence the defendant will serve in custody as relevant to whether a sentence is constitutionally excessive).