author:
Per Curiam
     CRICHTON, J.,

text:
    STATE of Louisiana v. Martin G. LEMOINE
    No. 2015-K-1120
    Supreme Court of Louisiana.
    05/03/2017

      LOUISIANA DEPARTMENT OF JUSTICE, Hon. Jeffrey Martin Landry, Attorney General, Colin Andrew Clark; POINTE COUPEE PARISH DISTRICT ATTORNEY’S OFFICE, Hon. Richard J. Ward, Jr., District Attorney, Elizabeth A. Engolio, Antonio Marcell Clayton; for Applicant.
    Mary Olive Pierson; KOCH LAW FIRM, Karl J. Koch; for Respondent.
   Per Curiam

hWe granted writs to examine whether the court of appeal correctly found the evidence insufficient to support the jury’s determination that defendant committed money laundering pursuant to R.S. 14:230(B)(2), in conjunction with his scheme to fraudulently overbill Union Pacific Railroad (hereinafter “Union Pacific”) for diesel fuel. We find that the jury rationally concluded that defendant knowingly gave, transferred, maintained an interest in, and/or otherwise made available things of value which he knew to be for the purpose of committing or furthering the commission of the criminal overbilling scheme. We therefore vacate the First Circuit’s ruling and remand to the court of appeal for consideration of the two remaining grounds in the motion for post-judgment verdict of acquittal.

After the trial in this matter, jurors returned a unanimous verdict finding defendant guilty as charged of money laundering, pursuant to R.S. 14:230(B)(2), in the amount of $20,001. Defendant filed a motion for post-verdict judgment of acquittal, contending the evidence was insufficient to support the verdict because: |2(1) the state failed to prove that any fraudulent invoices were sent to Union Pacific during the 46-day period charged; (2) the state failed to prove that defendant acted for the purpose of committing or furthering the commission of any criminal activity; and (3), in the alternative, the state had only proven misdemeanor grade money laundering because the “things of value” were checks, rather than cash. The trial court granted the motion on all three grounds, after which a divided First Circuit panel affirmed. State v. Lemoine, 14-1158 (La.App. 1 Cir. 5/6/15), 174 So.3d 31 (Welch, J., dissenting with reasons).

A motion for post-verdict judgment of acquittal shall be granted only if the evidence viewed in a light most favorable to the state does not reasonably permit a finding of guilt. La.C.Cr.P. art. 821(B). A comment to Art. 821 clarifies that the test to be applied in ruling on such a motion is “whether a reasonable fact finder must have a reasonable doubt” under the well-settled standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The section of the money laundering statute under which defendant was found guilty, R.S. 14:230(B)(2), makes it unlawful to knowingly: “Give, sell, transfer, trade, invest, conceal, transport, maintain an interest in, or otherwise make available anything of value known to be for the purpose of committing or furthering the commission of any criminal activity.” The issue before us is whether, viewing the evidence in the light most favorable to the prosecution, any rational fact-finder could have found these essential elements proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

|sThe evidence at trial showed that defendant, as president of Morel G. Lemoine Distributors, Inc. (“Morel”), concocted and executed a scheme by which he routinely defrauded Union Pacific by billing the railroad for more fuel than was dispensed to it. Union Pacific’s payments of the inflated invoices came in the form of checks which were deposited into Morel’s business checking account. This scheme flourished during 1995, 1996, and 1997, until Morel’s lead driver, Keith Glaser, who had been a key figure in inflating the fuel sales at defendant’s direction, left employment at Morel. Thereafter, the scheme was adjusted to further obscure the overbilling and, later, to overcome checks and balances Union Pacific put in place; yet continued nonetheless at defendant’s direction and through the efforts of his wife, Veronica Lemoine (who scratched out fuel totals on manifests), and Morel’s truck dispatcher, Rex Averill (who inflated invoices sent to Union Pacific to add “phantom gallons” not dispensed). Though the scheme ultimately ceased by March 6, 1998, when Union Pacific’s own fueling facility became operational, the illegal activity did not come to light until 2002, when Averill was terminated by Morel, hired by Union Pacific, and disclosed the scheme’s existence to its long-standing target.

In affirming the trial court’s post-verdict judgment of acquittal, the First Circuit noted the dearth of jurisprudence interpreting the money laundering statute and, having perceived similarities between R.S. 14:230 and the federal money laundering law, see 18 U.S.C.A. § 1956, the First Circuit majority analogized to federal money laundering jurisprudence before ultimately concluding that the trial court correctly granted an acquittal. See Lemoine, 14-1158, pp. 11, 13-25, 174 So.3d at 38-47.

The First Circuit majority erred to the extent it conflated the federal law and related jurisprudence with the Louisiana statute at issue. The Louisiana legislature has designated money laundering as a crime of “general intent.” In contrast, the federal monéy laundering statute exacts a. higher burden of proof by requiring that a transaction was conducted with specific intent to promote the carrying on of | (¡unlawful activity. In this regard, as Judge Welch’s dissent observed, the majority overstated any similarities between the state and federal provisions. See Lemoine, 14-1158, pp. 4-5, 174 So.3d at 51 (Welch, J., dissenting).

The First Circuit majority further blurred the lines between the state and federal statutes, and their various subsections, when it imported a requirement that the state must prove that the defendant here specifically sought to conceal his ill-gotten gains. Though concealment is among the several prohibited acts listed in Section (B)(2), it is but one way in which this particular method of money laundering may be committed. The act of concealing proceeds of criminal activity is also found within other subsections of the Louisiana statute and is likewise a separate means of establishing money laundering under federal law. See R.S. 14:230(B)(1) and (B)(5); 18 U.S.C. § 1956(a)(1)(B)(i).

We are also unpersuaded by the First Circuit majority’s view that the Louisiana money laundering statute is susceptible to the “merger problem;” a concept according to which a statute is drafted in such a way that the evidence necessary to prove the underlying or primary crime (here, theft from Union Pacific) is.. sufficient to also prove a more serious secondary offense (here, money laundering). Evidence of defendant’s fraudulent billing alone, ie., the thefts for which he was not prosecuted, could not, without more, serve as a basis for a money laundering prosecution. Rather, Section (B)(2) of the money laundering statute applies here because the evidence shows, not only that defendant repeatedly stole from Union Pacific, but that he was depositing those ill-gotten gains into his business account, in which he maintained an interest and from which he routinely transferred money to perpetuate and further his business operations, which | (/functions involved the recurring thefts. Put another way, this is not a “garden variety” theft casé, as defendant asks us to find, but rather, in light of the use of stolen money to finance future thefts, a prototypical money laundering case.

Moreover, related concerns that Section (B)(2) is open-ended, because it applies to “anything of value,” overlook the purpose of the money laundering statute, which is not to enable prosecutors to latch onto most any crime and, on a whim, elevate the charges to the offense of money laundering, but rather as the statute’s title announces, to prohibit “transactions involving proceeds of criminal activity.” See R.S. 14:230. For this reason, defendant was subject to prosecution for and ultimately found guilty of the more serious offense of money laundering. See Lemoine, 14-1158, pp. 7-8, 174 So.3d at 52-53 (Welch, J., dissenting) (“It sets a dangerous precedent to judicially legislate in accordance with federal law and federal jurisprudence without attempting to ascertain the Louisiana legislative intent,... The clear legislative intent was to prohibit transactions involving the proceeds of criminal activity”).

Setting aside issues of interpretation, we turn now to the sufficiency of the evidence and conclude that the First Circuit and trial court erred in finding that the state failed to prove defendant acted for the purpose of committing or furthering the commission of any criminal activity.

17First, the state was not required to prove that any actual tainted or “dirty” dollars were used during the charged period. Defendant contends that “because money is fungible and the checks from the railroad commingled [with] legitimate payments,” the state was required to show that “the ‘dirty’ portion of the money was necessarily used for the criminal purpose.” In defendant’s appreciation, this Court should adopt what he sees as the preferred approach when funds have been commingled in a money laundering case, which is to require proof that the expenditures from the commingled account exceeded the amount of clean money therein. In advocating for this approach, he points to a case from the Federal Fifth Circuit in which that standard was applied. See United States v. Loe, 248 F.3d 449, 466-67 (5th Cir. 2001).

After careful consideration, we find that the Louisiana money laundering law places no such burden on the state to trace dirty money after it has been commingled with clean money. Money launderers often mix the fruit of their crimes with legitimately-acquired assets, assuming detection of the dirty funds will be more difficult as a result. Mindful of this reality, courts have found that commingling can itself be evidence of money laundering and have found that the purpose of money laundering statutes indicates direct tracing is not required. See, e.g., United States v. Ward, 197 F.3d 1076, 1082-83 (11th Cir. 2000) (requiring | sprosecution to “trace the origins of the funds and ascertain ‘exactly which funds were used for what transaction” ’ is unnecessary and contrary to congressional intent). We agree that requiring the state to trace dirty money once it has been commingled would be inconsistent with the legislative intent of the money laundering law and would serve only to incentivize criminals’ efforts to obscure ill-gotten gains. Thus, at least in a money laundering case, the law only requires the state to prove that dirty money constituted a portion of the commingled funds that were maintained or deployed for a criminal purpose. Accordingly, even accepting that the evidence in this case showed the dirty money made up less than six percent of the balance of defendant’s business account, the state carried its burden of proof in this regard.

|9In addition, the state was required to show that defendant took a prohibited action with the account with a known purpose of committing or furthering the commission of criminal activity. The First Circuit majority conceded the illegality of defendant’s actions before the charged period because the evidence showed that defendant paid Keith Glaser to routinely inflate the fuel tickets. But, because the majority could find no evidence that anything illegal was done with money from the account during the charged time-frame, it found the state failed to prove its case. It was material in the First Circuit’s view that while Glaser had been paid extra to manipulate fuel tickets, Averill only received regular wages; and because Averill, but not Glaser, was employed during the charged period, defendant had made no illegitimate use of the money during the critical time.

Wé find this conclusion in error in light of the evidence, which jurors were entitled to credit, that Averill played a pivotal role in the scheme, at defendant’s direction, both before and during the charged period. It is immaterial that Averill’s wages did not include “extra” pay to further the scheme because nothing in Section (B)(2) justifies drawing such a distinction. To the contrary, though Averill was not paid extra to inflate the numbers, testimony showed that during the 46 days at issue he was paid on a weekly basis in exchange for performing the duties of his employment— which included the continued overbilling of Union Pacific. See Lemoine, 14-1158, p. 9, 174 So.3d at 53-54 (Welch, J., dissenting) (“Averill[’s] continued employment required that he continue his participation in the over billing scheme. He was being paid with some portion of the illegally billed money by the corporation in . order to corn tinue the illegal overbilling scheme. No doubt this was true, because when he was fired in 2002, he reported the scheme.”).

. More broadly, defendant’s assertion that the account was used only for legitimate business purposes rings hollow in a case in. which the evidence showed that his business was routinely committing theft and thereby operating as a 110criminal enterprise. It appears plain that when an enterprise engages in crime, its operating expenses may be reasonably be characterized as illegitimate, ie., for the known purpose of furthering the criminal activity.

Loretta Robillard, whom defendant employed as a bookkeeper from 1995-2010, including during the charged period, testified that she deposited checks from Union Pacific into defendant’s checking account at Guaranty Bank, generated invoices based on the sales numbers Averill logged, and that money in the account was used to pay the bills and expenses of running the business. She also testified that she shared invoicing duties with Averill. Averill testified that he worked as a truck dispatcher for Morel from 1995 until he was terminated in 2002. He explained that his duties included a variety of tasks, ranging from managerial to janitorial, and that he did “all the things that [defendant] didn’t wanna do,” to keep operations going. Averill facilitated the scheme by including “phantom gallons” on invoices prepared for Union Pacific and Averill’s testimony verified that defendant knew as much. As part of his work duties, Averill also kept an overage report—/or defendant and with defendant’s knowledge—tracking the number of phantom gallons for which Union Pacific was being fraudulently billed. Defendant came to Averill routinely to see “where [they stood] on the overage report,” that is, to gauge how many gallons they had overbilled. Averill confirmed that the scheme was ongoing during the charged period, at defendant’s direction, and that Averill personally generated and sent inflated invoices during that time, and further, that checks from Union Pacific paying inflated invoices were received during that .time. Averill’s description, of the scheme was corroborated by Union Pacific Special lnAgent Stephen Paddy, who presented examples of inflated .invoices received and paid by Union Pacific.

Jurors were entitled to credit this testimony, and to conclude based thereon that defendant was guilty of laundering money during the charged period. Jurors were similarly justified in finding, based on the bookkeeper’s testimony, that the account into which the Union Pacific, checks were deposited was the same account that defendant used to pay Averill’s wages (and other business operating expenses, including defendant’s own salary), knowing that the business operations would include continued overbilling of Union Pacific during the charged period. See State v. Mussall, 523 So.2d 1305, 1310 (La. 1988) (fact-finder makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the “fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.”). Based on the evidence presented, jurors rationally found that defendant knowingly gave, transferred, maintained an interest in, and/or otherwise made available the value of the checks from Union Pacific with a known purpose of committing or furthering the commission of the overbilling scheme. The crime of money laundering is, for all practical purposes, a process by which ill-gotten gains are commingled with clean funds and used to perpetuate criminal activity. The notion that the circumstances in this case constitute anything other than money laundering is plainly belied by the record.

For the foregoing reasons, jurors rationally found that defendant knowingly gave, transferred, maintained an interest in, and/or otherwise made available things of value which he knew to be for the purpose of committing or furthering the commission of the criminal overbilling scheme. We therefore reverse and vacate the First Circuit’s ruling and remand to that court for consideration of the two remaining grounds in defendant’s motion for post-judgment verdict of acquittal.

I ^REVERSED AND REMANDED.

CRICHTON, J.,

dissents and assigns reasons:

hi respectfully dissent. To be clear, I believe defendant’s conduct was wrong— the evidence at trial appears to prove the crime of theft. Nonetheless, defendant was charged with money laundering under La. R.S. 14:230(B)(2), not theft under La. R.S. 14:67(A). And because I believe La. R.S. 14:230(B)(2) is subject to multiple reasonable interpretations, the rule of construction is to resolve any doubt in favor of lenity. See State v. Freeman, 411 So.2d 1068, 1072 (La. 1982).

As Justice Scalia—writing for a plurality of the United States Supreme Court—instructs:

This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce [the Legislature] to speak more clearly and keeps courts from making criminal law in [the Legislature’s] stead.

United States v. Santos, 553 U.S. 507, 514, 128 S.Ct. 2020, 2025, 170 L.Ed.2d 912 (2008) (applying the rule of lenity to affirm a lower court’s vacating of a money-laundering conviction). Therefore, I would construe La. R.S. 14:230(B)(2) in a manner that favors defendant in this case and affirm the lower courts’ determinations that no reasonable juror could find beyond a reasonable doubt that |athe State proved this defendant committed the crime of money laundering under La. R.S. 14:230(B)(2).

GENOVESE, JUSTICE, dissents for the reasons assigned by Justice Crichton.

       Judge James T. Genovese, assigned as Justice ad hoc, sitting for Knoll, J. for oral argument. He now sits as an elected Justice at the time this opinion is rendered.

      . As the First Circuit framed the scope of its decision: "We agree with the defendant regarding the second issue, The evidence as a matter of law was insufficient to convict because the State failed to prove every element of the offense. Specifically, the State failed to prove the defendant knowingly acted in a way for the purpose of committing or furthering the commission of any criminal activity. Because the foregoing analysis disposes of the sufficiency issue in its entirety, we do not address the other arguments raised by the defendant.” Lemoine, 14-1158, p. 11, 174 So.3d at 38.

      . The Louisiana money laundering law prohibits transactions involving the proceeds of criminal activity. During the 46-day period charged, from January 20, 1998 to March 6, 1998, the definition of “funds” had been construed as not including checks. Because Union Pacific paid defendant for the inflated invoices by issuing checks, the state prosecuted him under Section (B)(2), under the theory that those checks were nonetheless things of value. Notably, in response to the jurisprudence finding checks not “funds” (nor by extension “proceeds”) for purposes of R.S. 14:230, see State v. Odom, 07-0516 (La.App. 1 Cir. 7/31/08), 993 So.2d 663, the legislature expanded the definition of funds to include electronic and written checks, Section (A)(2)(d), and investment securities and negotiable instruments, Section (A)(2)(e). See 2010 La. Acts. 608.

      . The evidence also showed that defendant directed his employees to dispose of excess fuel inventory (that is, the gallons that Union Pacific paid for but never received) by making discounted off-the-books cash sales to farmers.

      . At some point, Morel’s drivers ceased handwriting the gallons of fuel dispensed on their manifests so that it was no longer necessary to scratch out the discrepancies. Morel also ceased using field tickets and instead drivers kept track of gallons dispensed on scrap paper, which were discarded after the inflated invoices were generated.

      , Aside from this case, there are only two appellate decisions addressing R.S. 14:230. The case of State v. Dudley, 06-1087 (La.App. 1 Cir. 9/19/07), 984 So.2d 11 involved laundering by concealment and is therefore inap-posite here; in State v. Odom, supra, the First Circuit considered whether checks amounted to "proceeds” as envisioned in R.S. 14:230 subsections other than (B)(2). Notably, the First Circuit in Odom took the opposite view of the similarities (or lack thereof) between the state and federal money laundering laws, observing in part:
      We reject the argument that the federal statute offers guidance to determine the issue presented.... Our state statute is obviously not as broad as the federal statute. [And because] the federal statute predates the enactment of this state's statute in 1994, [ ] if the legislature had intended to include the more expansive definitions, it could have done so. A criminal statute must be given a genuine construction consistent with the plain meaning of the language in light of its context and with reference to the purpose of the provision. La. R.S. 14:3.

        Odom, 11, 993 So.2d at 671; Thus, in contrast with the First Circuit majority here, the court in Odom adopted a view more compatible with our view and with Judge Welch’s dissent here, emphasizing -the substantial differences between the state and federal laws. Cf. Lemoine, 14-1158, p. 12, 174 So.3d at 55 ("Essentially, the majority reasons that La. R.S. 14:230(B)(2) is similar to 18 USCA 1956 A(a)A(i); therefore, we should look to federal jurisprudence to get the proper [perspective] on Louisiana Law, although it concedes that the statutes differs on the intent element, i.e,, state law requires general intent whereas federal law required specific intent. However, we do not need to resolve this case by resorting to federal jurisprudence, but rather, by evaluating the language of the statute itself and its legislative intent.") (Welch, J., dissenting).

      .In particular, the First Circuit majority equated the requirement of Section (B)(2) that a defendant engage in an enumerated act with something of value “for the purpose of committing or furthering the commission of any criminal act” with the. federal prohibition against using criminal proceeds “with the intent to promote the carrying on of specified unlawful activity,” (see § 1956(a)(1)(A)(i)), which is known as the “promotion" method of money laundering (as opposed to the "concealment” method as provided in § 1956(a)(1)(B)(i))).

      . The Louisiana legislature- has declared that, "in the absence of qualifying provisions, the terms 'intent’ and ’intentional’ have reference to 'general criminal intent.’ ” R.S. 14:11. Because the statute here bears no qualifiers, but rather makes it unlawful to' "knowingly” do any of the enumerated acts, defendant was prosecuted for and found guilty of a general intent crime. Cf. State v. Bernard, 441 So.2d 817, 820 (La. App. 3 Cir. 12/14/83) ("In spite of the words that it shall be unlawful for any person knowingly or intentionally ...' to do the prohibited acts, the statute requires no more than general criminal intent. A distribution offense is a crime requiring only general criminal intent. Such intent is established by mere proof of voluntary distribution.”) (citing R.S. 14:11 and State v. Banks, 307 So.2d 594 (La. 1975), writ denied, 445 So.2d 439 (La. 1984)).

      . See 18 U.S.C. § 1956(a)(1)(A)(i) ("Whoever, knowing that the property involved in a financial transaction represents the proceed^ of somp form of unlawful , activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity with the intent to promote the carrying on of specified unlawful activity [shall be punished for mcjney laundering].’’).

      . Notably, though the title of an act is not a part of tíre statute, it can be used to resolve doubt as to legislative intent as to a specific provision. See, e.g., State v. Williams, 10-1514, p. 7 (La. 3/15/11), 60 So.3d 1189, 1192; Authement v. Shappert Engineering, 02-1631, p. 8 (La. 2003), 840 So.2d 1181, 1186 (title of an act “may be instructive in determining legislative intent”); State v. Madere, 352 So.2d 666, 668 (La. 1977) (same); see also Schimpf v. Thomas, 204 La. 541, 559, 15 So.2d 880, 886 (1943) ("A title is no part of a statute, but it may be considered in determining the legislative intent where doubt exists.”). Here, simply revisiting the statute's title settles any doubt generated by use of the phrase "anything of value” to describe thing(s) being laundered in a Section (B)(2) case. Cf. Williams, 10-1514, p. 8, 60 So.3d at 1193.

      . Under the law at the time of the instant offense, defendant would have faced up to 10 years imprisonment (with or without hard labor) for theft of $500 or more, plus a fine of up to $3,000. Under R.S. 14:230(E)(3), however, based the evidence that he laundered at least $20,000 (but less than $100,000), defendant faced a sentence of between two and 20 years imprisonment at hard labor, plus a fine of up to $20,000.

      . As used in the court below, the ill-gotten or tainted money at issue in a money laundering case is often referred to colloquially as "dirty” money. We use this term here in keeping with legal nomenclature. See Lemoine, 14-1158, p. 23, 174 So.3d at 46 (citing federal law); see also, e.g., United States v. Santos, 553 U.S. 507, 536, 128 S.Ct. 2020, 2038, 170 L.Ed.2d 912 (2008); People v. Gutman, 355 Ill.Dec. 207, 959 N.E.2d 621, 632 (Ill. 2011).

      . As discussed below, see n.14, the case of Loe was not a money laundering case under the same statute the First Circuit majority found'analogous here, 18 U.S.C. § 1956, but rather a prosecution for engaging in illegal transactions brought under the distinct provisions of § 1957, which have been distinguished and treated differently as to the prosecution’s burden of proof.

      . See, e.g., United States v. Phythian, 529 F.3d 807, 813 (8th Cir. 2008) ("Where a defendant commingles illegal proceeds with the identity or the funds of a legitimate and usually preexisting business ... [s]uch commingling effectively conceals the nature, source, ownership, and/or control of the unlawful proceeds”) (citation and quotation marks omitted); United States v. Sutera, 933 F.2d 641, 648 (8th Cir. 1991) (tainted funds "might have been better hidden if [they] had been mixed with [legitimate] receipts”).

      .We note that 18 U.S.C. § 1956 money laundering prosecutions and § 1957 prohibited monetary transaction prosecutions have been treated differently with regard to the government's burden of proof regarding commingling. While there is consensus that § 1956 cases do not require the prosecution to trace dirty funds, there has been disagreement in § 1957 cases. See United States v. Rutgard, 116 F.3d 1270, 1292 (9th Cir. 1997) ("[The fungibility of money destroys the specific identity of any particular dollar and makes commingling an obvious way to hide criminal funds.] If § 1956 required tracing of specific funds, it could be wholly frustrated by commingling.... Neither the same reasoning nor the same language is present in § 1957.”). In any event, a majority of circuits has found that the government is not required to trace criminally-derived funds once they have been put into commingled accounts. For an expanded discussion, see Joseph R. Miller, Federal Money Laundering Crimes—Should Direct Tracing of Funds Be Required?, 90 Ky. L.J. 441, 449 (2002).

      . See United States v. Nickson, 127 Fed.Appx. 770, 773 (6th Cir. 2005) ("[T]he government need not trace funds garnered illegally to their use in a money-laundering scheme on a dollar-for-dollar basis on the theory that money-launderers would be permitted to evade sanctions by commingling illegal assets with legitimate earnings.”); United States v. Huber, 404 F.3d 1047, 1058 (8th Cir. 2005) ("The presence of legitimate funds made the transactions no more lawful because the transactions still involved the illegitimate proceeds.”); United States v. Baker, 227 F.3d 955, 965-66 (7th Cir. 2000) (government’s evidence need not isolate income from prostitution from income from legitímate massage services when money from both was commingled in one account); United States v. Tencer, 107 F.3d 1120, 1131 (5th Cir. 1997) (government must only show that part of the money in the account represented ill-gotten proceeds); United States v. Jackson, 935 F.2d 832, 840 (7th Cir. 1991) (“[W]e cannot believe that Congress intended that participants in unlawful activities could prevent their own convictions under the money’laundering statute simply by commingling funds derived from both "specified unlawful activities” and other activities. Indeed, the commingling in this case is itself suggestive of a design to hide the source of ill-gotten gains.”); United States v. Bencs, 28 F.3d 555, 562 (6th Cir. 1994) (rejecting argument that the government must trace funds to specific drug sales to prove money laundering: "Like the Seventh Circuit, we refuse to read the statute in a manner that would reward the more creative money-launderer by allowing him to escape liability altogether by commingling assets or otherwise disguising the source of his funds.”).

      . Averill also explainéd the means by which defendant directed him to reduce the excess fuel inventories that accumulated as a result of Union Pacific not being given all of the gallons they bought. According to this aspect of the scheme, Averill periodically contacted local farmers and sold them the excess fuel for cash at a rate of just "a penny a gallon, a penny above cost.” The cash proceeds of these sales went to defendant.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    IN RE: Freddie KING, III
    NO. 2017-B-1010
    Supreme Court of Louisiana.
    06/29/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

h The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent mishandled his client trust account. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rule 1.15 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Freddie Kang, III, Louisiana Bar Roll number 33923, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

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


author: PER CURIAM:

text:
    STATE EX REL. Eric M. DENET v. STATE of Louisiana
    No. 2016-KH-0327
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

|! Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4. See also State v. Denet, 01-1334 (La. 3/28/02), 812 So.2d 644.

Moreover, relator has previously exhausted his right to state collateral review. See State ex rel. Denet v. State, 15-0426 (La. 4/4/16), 187 So.3d 997.


text:
    STATE EX REL. Carlos ROMIOUS v. STATE of Louisiana
    No. 2016-KH-0679
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| rWRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Fate Vincent WINSLOW v. STATE of Louisiana
    No. 2016-KH-2157
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

| denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Winslow v. State, 15-0658 (La. 1/25/16), 184 So.3d 15.


text:
    STATE EX REL. Gregory Burnett COLLIER v. STATE of Louisiana
    No. 2016-KH-0671
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE ELEVENTH JUDICIAL DISTRICT COURT, PARISH OF SABINE

PER CURIAM:

|, Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We attach hereto and make a part hereof the district court’s written reasons denying relief.

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

Attachment

ESTATE OF LOUISIANA VERSUS GREGORY BURNETT COLLIER

DOC# 166520

DOCKET NO.: 10-CR-068548

11th JUDICIAL DISTRICT COURT SABINE PARISH, LOUISIANA

ORDER

THIS CAUSE HATH COME BEFORE THIS HONORABLE COURT on an Application for Post-Conviction Relief filed June 4, 2015, by the above named applicant in his pro se capacity.

AFTER DUE AND REVERENT CONSIDERATION OF THE FOREGOING APPLICATION, THIS COURT FINDS neither error nor prejudice to support Applicant’s claim of ineffective assistance of counsel.

DISCUSSION

Applicant asserts that the trial court erred in instructing the jury by occasionally and interchangeably using the word “defendant” for “offender” during parts of the jury instruction, thus depriving him of his right to a fair trial because it undermined the jury’s understanding of his presumption of innocence guaranteed him under the United States Constitution.

The test, for effectiveness of counsel is two-pronged. First, Applicant must show that counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment to the. U.S. Constitution. Second, Applicant must show that the deficient performance prejudiced the defense by establishing that counsel’s errors were so serious as to deprive defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984); State ex rel. Busby v. Butler, 538 So.2d 164 (La. 1988). Only if Applicant shows both error and ^prejudice will his conviction be found unreliable and set aside. Absent a contemporaneous objection, a defendant .may not complain of an erroneous charge to the jury. State v. Belgard, 410 So.2d 720 (La. 1982). There is an exception to this rule in instances of constitutional violations that clearly appear on the record. See, State v. Williamson, 389 So.2d 1328 (La. 1980).

There is no requirement that the applicable law must be recited verbatim in a jury chax’ge but only that it “fairly and reasonably point out the issues and ... provide correct principles of law for the jury to apply to those issues.” Adams v. Rhodia, Inc., 2007-2110, 983 So.2d 798, 804 (La.5/21/08). Trial courts are given broad discretion in formulating jury instructions. Id. at 805. The determinative question in a claim such as Mr. Collier’s is “whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice.” Nicholas v. Allstate Insurance Company, 99-2522, p. 8 (La.8/31/00), 765 So.2d 1017, 1023; see also Brown v. White, 405 So.2d 555, 560 (La. App. 4 Cir. 1981), rev’d on other grounds on reh’g, 430 So.2d 16 (La. 1983); Jones v. Liberty Mutual Insurance Company, 568 So.2d 1091, 1094 (La.App. 5 Cir. 1990), writ denied, 572 So.2d 72 (1991).

Determining whether an erroneous jury instruction has been given requires a comparison of the degree of error with the jury instructions as a whole and the circumstances of the case. See, Belle Pass Terminal, Inc. v. John, Inc., 92-1544 p. 16 (La.App. 1 Cir. 3/11/94); 634 So.2d 466, writ denied, 94-0906 (La. 6/17/94). In Mr. Collier’s case, the occasional and interchangeable use of words “offender,” used in the general, and “defendant,” used in the general, is of no consequence. Mr. Collier believes that these instances somehow led the jury to believe that the |.“defendant” was a reference to Mr. Collier personally, because of his defendant status, thus suggestive that he was guilty diminishing his presumption of innocence. It is unreasonable to believe that no less than ten of his twelve jurors could not cognitively understand the difference between Mr. Collier’s very name and the word “defendant” when used generally in the jury’s instruction of what actions or inactions of'a “defendant” must be found before concluding a particular verdict. Any confusion that may have theoretically existed in the mind of a juror would have been effectively prevented by the thorough instruction given prior to the questioned instruction:

THE COURT: The Defendants are presumed to be innocent until each element of the crime necessary to constitute their guilt is proven beyond a reasonable doubt. The Defendants are not required to prove that they are innocent. Thus, the Defendants begin the trial with a clean slate. The burden is always upon the State to prove the Defendants’ guilt beyond a reasonable doubt. In considering the evidence, you must give the Defendants the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence. If you are not convinced of the guilt of the Defendants beyond a reasonable doubt, you must find them not guilty. The presumption of innocence is another way of saying that a person is not guilty until proven otherwise beyond a reasonable doubt. A legal presumption relieves the person in whose favor it exists from the necessity of any proof whatsoever. Nevertheless, a presumption may be destroyed by evidence to the contrary. In other words, a defendant in this State need not prove his innocence. It is incumbent on the State to prove his guilt beyond a reasonable doubt; and, until so proven, an accused is presumed to be innocent.

Here, the Defendants were referred in the specific (“the Defendants”) purposefully employing the definite article “the” and “Defendants” with a capital D), hence speaking to the presumed innocence due them by the jury, ie., the | ^presumption of innocence to Mr. Collier and to Mr. Thompson, individually and collectively.

Assuming arguendo that the jury could not comprehend the difference between the general and the specific use of the term “defendant,” it did not misinform the jury of the law or reveal a misapplication of it, a hallmark of a Williamson exception. See, State v. Belgard, 410 So.2d at 728 (concurrence, J. Calogero); State v. Latiolais, 453 So.2d 1266 (La.App. 3 Cir. 1984), writ denied, 458 So.2d 125 (La. 1984); State v. Holmes, 620 So.2d 436 (La.App. 3 Cir. 1993), writ denied, 626 So.2d 1166 (La. 1993); State v. Porter, 626 So.2d 476 (La. App. 3 Cir. 1993). As no clear Constitutional violation of the jury instruction occurred under the facts as Applicant describes, there is no error. With no error, there was no ineffective assistance of counsel as there was no need for the Applicant’s attorney to make an objection. Thus, Applicant’s claim must be denied.

Additionally, and of great importance, the jury’s verdict is not unsupported by the evidence admitted at trial: the mask and clothing Collier and his Co-Defendant used in the home invasion was described and identified by the victims and then found near the victims’ home replete with their DNA. Moreover, the former girlfriend of one of the Defendants testified that the Defendants planned the attack. Any perceived prejudice caused by an alleged diminished presumption of the Applicant’s innocence is grossly mooted when compared to the considerable physical and testimonial evidence against him at trial. Under these circumstances, the jury was not misled in reaching its verdict.

JgTHEREFORE, BASED ON THE ABOVE FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS ORDERED, ADJUDGED, AND DECREED that the subject Application be and is hereby respectfully DENIED; and

IT IS FURTHER ORDERED that the Clerk of Court notify the parties below of the signing of this Order.

THUS DONE AND SIGNED in Chambers, in the Town of Many, Parish of Sabine and State of Louisiana, on this, the 12th day of October, 2015.

/s/ HON. STEPHEN B. BEASLEY DISTRICT COURT JUDGE

SERVICE INFORMATION: Mr. Gregory Burnett Collier DOC# 166520

Care of

Louisiana State Penitentiary 17544 Tunica Trace Angola, LA 70712

Applicant

Mr. Burl Cain, Warden Louisiana State Penitentiary 17544 Tunica Trace Angola, LA 70712

Custodian

Office of the District Attorney P. O. Box 1557 Many,'LA 71449-1557


text:
    STATE EX REL. Marty HEBERT v. STATE of Louisiana
    No. 2016-KH-1104
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARY

PER CURIAM:

| denied. State ex rel. Fleury v. State, 93-2898 (La. 10/13/96), 661 So.2d 488.

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

Johnson, C.J. n.s.


text:
    STATE EX REL. Andora Y. HUDSON v. STATE of Louisiana
    No. 2016-KH-0665
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

| t Denied. Relator’s application was not timely filed in the district court, and she fails to carry her burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claims are not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030.

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless she can show that one of the narrow exceptions authorizing the filing of a successive application |2applies, relator has exhausted her right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. HAI A. DUONG v. STATE of Louisiana
    No. 2016-KH-1018
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

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

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

B.J.J. n.s.


text:
    STATE EX REL. Tyrone LARTIGUE, Jr. v. STATE of Louisiana
    No. 2016-KH-0503
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE

PER CURIAM:

| denied. Relator does not identify an illegal term in his sentence, and-therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0266 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not' timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4. See State ex rel. Lartigue v. State, 13-2810 (La. 9/12/14), 147 So.3d 180.

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


text:
    STATE EX REL. Daryl Germaine ROSHELL v. STATE of Louisiana
    No. 2016-KH-0502
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

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

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

Johnson, C.J. n.s.


text:
    STATE EX REL. Leo MITCHELL v. STATE of Louisiana
    No. 2016-KH-0637
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

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

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


text:
    STATE EX REL. Bobby Ray HENDERSON v. STATE of Louisiana
    No. 2016-KH-0615
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE SECOND JUDICIAL DISTRICT COURT, PARISH OF CLAIBORNE

PER CURIAM:

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

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


text:
    IN RE: Andres Humberto AGUILAR
    NO. 2017-B-1320
    Supreme Court of Louisiana.
    8/02/2017
   ORDER

|! Considering the Joint Petition for Interim Suspension filed by respondent, Andres Humberto Aguilar, and the Office of Disciplinary Counsel,

IT IS ORDERED that Andres Humberto Aguilar, Louisiana Bar Roll number 34176, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.


text:
    STATE EX REL. Christopher Brian COPE v. STATE of Louisiana
    No. 2016-KH-0481
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

1 iDenied. Relator’s claims regarding his confession, pretrial publicity, and the survivability defense are repetitive. La. C.Cr.P. art. 930.4(A); see State v. Cope, 48,739 (La. App. 2 Cir. 4/9/14), 137 So.3d 151, writ denied, 14-1008 (La. 12/8/14), 153 So.3d 440. In addition, relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We attach hereto and make a part hereof the district court’s written reasons denying relief.

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

Johnson. C.J. n.s.

Crichton, J. recused

Attachment

I «STATE OF LOUISIANA VERSUS CHRISTOPHER COPE

NUMBER: 291,674-2

FIRST JUDICIAL DISTRICT COURT

CADDO PARISH, LOUISIANA

The subject of this Opinion is Petitioner’s Application for Post-Conviction Relief filed October 12, 2015. For the foregoing reasons, Petitioner’s Application is DENIED.

On or about October 30, 2012, . the Petitioner, present with counsel. Bruce Whit-taker, was found guilty as charged of First Degree Murder and waived sentencing delays. Whereupon, the Petitioner was sentenced to life imprisonment at hard labor and committed to the Louisiana .Department of Corrections, subject to the conditions provided by law. The court ordered said sentence to be served without the benefit of probation, parole or suspension of sentence and with credit for time served. The court informed the Petitioner of his right to appeal and post-conviction relief proceedings as per Boykin v. Alabama. The Petitioner’s conviction and sentence were affirmed on appeal, and the Louisiana Supreme Court denied writs. State v. Cope, 48,739 (La. App. 2d Cir. 4/9/14), 137 So.3d 151, writ denied, 2014-1008 (La. 12/8/14), 153 So.3d 440.

The Petitioner first raises two claims and argues the trial court erred in denying his motions to suppress the confession and motion for change of venue. As stated in the Assistant District Attorney’s Procedural Objection to the Petitioner’s Application for Post-Conviction Relief, “both issues were raised and fully litigated in the Petitioner’s appeal.” State v. Cope, 48,739 (La. App. 2d Cir. 4/9/14), 137 So.3d 151, writ denied, 2014-1008 (La. 12/8/14), 153 So.3d 440.

Secondly, in his application for post-conviction relief, Petitioner alleges ineffective assistance of counsel. To succeed on an ineffective assistance of counsel claim, Petitioner must first satisfy the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner must show that counsel’s performance was deficient, that the deficiency prejudiced him, and that counsel’s error was so serious that it violated Petitioner’s right to effective assistance of counsel as guaranteed by the Sixth Amendment of the U.S. Constitution. Id. at 686, 104 S.Ct. 2052. The Petitioner must prove actual prejudice before relief will be granted. It is not sufficient for the Petitioner to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome would have been different. Id. at 693, 104 S.Ct. 2052. The performance and conduct of the defense attorney must be evaluated from that counsel’s perspective at the time of |4the occurrence. Petitioner has not met his burden under Strickland of showing a different outcome. He merely makes unsupported allegations of ineffective assistance of counsel. Petitioner has not met his burden of proof pursuant to Louisiana Code of Criminal Procedure article 930.2.

Additionally, in accordance with La. Code of Criminal Procedure Article 930.4, where an application for post-conviction relief alleges a claim of which the petitioner had knowledge and inexcusably failed to raise in the proceedings leading to conviction, the court may deny relief. The limitations on prosecution alleged by the Petitioner should have been acknowledged in proceedings leading to conviction. Petitioner should include reasons why this claim was not presented at trial or on appeal.

For the foregoing reasons, Petitioner’s Application for Post-Conviction Relief filed October 12, 2015 is DENIED.

The Clerk of Court is directed to provide Petitioner, his custodian and the District Attorney with a copy of this opinion. OPINION RENDERED, READ AND SIGNED, this 19th day of November, 2015.

M JOHN MOSELY, JR. DISTRICT JUDGE

SERVICE INFORMATION:

Christopher Cope, DOC # 604579 Louisiana State Prison Angola, La. 70712-9999 Caddo Parish District Attorney 501 Texas St., 5th Floor Shreveport, LA 71101


text:
    STATE EX REL. Gabrielle COOPER v. STATE of Louisiana
    No. 2016-KH-0607
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

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

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

Hughes, J., would grant to order an evidentiary hearing.


text:
    STATE EX REL. Terrell HOLMES v. STATE of Louisiana
    No. 2015-KH-2236
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

| iDenied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his claim of prosecutorial misconduct, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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


text:
    STATE EX REL. Calvin James HEGGAR v. STATE of Louisiana
    No. 2016-KH-0281
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE THIRD JUDICIAL DISTRICT COURT, PARISH OF LINCOLN

PER CURIAM:

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

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

Attachment

INSTATE OF LOUISIANA PARISH OF LINCOLN THIRD DISTRICT COURT

STATE OF LOUISIANA Versus CALVIN JAMES HEGGAR

No. 50,784

FILED: OCT 02 2015

Division A

/s/ DEPUTY CLERK OF COURT

RULING

Petitioner, Calvin James Heggar, filed an Application for Post Conviction Relief on January 17, 2014. Petitioner was found guilty of second degree murder on March 26, 2004 and he was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on May 24, 2004. Petitioner’s conviction and sentence was affirmed by the Second Circuit Court of Appeal on August 17, 2005. See State v. Heggar, 39,915 (La. App. 2 Cir. 2005), 908 So.2d 1245, 1250.

In this Application, Petitioner cites Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) in support of the timeliness of his various claims. However, the Court notes that “Martinez is not ‘a new rule of constitutional law’ ” and it does not confer a constitutional right to effective assistance of post-conviction counsel. See In re Sepulvado, 707 F.3d 550, 556-557 (5th Cir. 2013).

Petitioner has previously filed an Application for Post Conviction Relief. Therefore, the Court notes that this Application is successive. Some of Petitioner’s claims are repetitive, as they have been raised on appeal or in prior Applications. Petitioner’s Application is also not timely. Petitioner has not met any of the exceptions to the time limitations that are provided in La. R.S. 930.8. Therefore, Petitioner’s Application is procedurally DENIED, as it is successive, repetitive and not timely.

IT IS ORDERED that the Clerk of Court notify the Office of the District Attorney, the Petitioner and Petitioner’s Custodian by certified copy of this Ruling.

IT IS FURTHER ORDERED that the Clerk of Court provide a copy of Petitioner’s Application to the Office of the District Attorney, if not previously furnished.

THUS DONE and SIGNED this 30 day of September, 2015, in chambers at Ru-sten, Lincoln Parish, Louisiana.

/s/ JUDGE JAY B. MCCALLUM THIRD JUDICIAL DISTRICT COURT

      . The Court has no record of receiving such Application. Petitioner sent correspondence to the Clerk inquiring as to the status of this Application in September of 2015 and the Court became aware of the Application at that time.


text:
    STATE EX REL. Jerry Lee WILLIAMS v. STATE of Louisiana
    No. 2015-KH-2218
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

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

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

Johnson, C.J., n.s.

Attachment

i,STATE OF LOUISIANA VERSUS JERRY LEE WILLIAMS

NUMBER: 246,465; SECTION 4

FIRST JUDICIAL DISTRICT COURT

CADDO PARISH, LOUISIANA

RULING

On March 23, 2007, Petitioner, JERRY LEE WILLIAMS, was found guilty, by a jury, of one count of Second Degree Murder and one count of Attempted Second Degree Murder. Whereupon, on May 15, 2007, the Petitioner was sentenced as to count # 1, Second Degree Murder, life imprisonment at hard labor and committed to the Louisiana Department of Corrections, subject to the conditions provided by law. The Court sentenced the Petitioner as to count # 2, Attempted Second Degree Murder, to be confined at hard labor for a period of thirty-seven (37) years and committed to the Louisiana Department of Corrections, subject to the conditions provided by law. The Court ordered costs paid through the inmate banking system, each sentence to be served without benefit of probation, parole, or suspension of sentence, to be served concurrently with each other, with credit given for time served. The Court informed Petitioner of his right to appeal and of his right to post-conviction relief proceedings.

On appeal, the Petitioner’s sentences and convictions were affirmed by the Second Circuit Court of Appeal and the Louisiana Supreme Court denied writs. State v. Williams, 42,914 (La. App. 2 Cir. 1/9/08), 974 So.2d 157, writ denied, 2008-0465 (La. 9/26/08), 992 So.2d 983.

The subject of this ruling is Petitioner’s “Second and Successive Application for Post-Conviction Relief Review In Interest of Justice Art. 930.4 Actual Innocence— Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)” filed April 10, 2015. Although the motion is file stamped April 10, 2015, this office did not receive notice of the motion until Petitioner subsequently filed a Writ of Mandamus with the Second Circuit Court of Appeal. The District Attorney’s Office filed its “Procedural Objection and Memorandum to Application For Post-Conviction Relief’ on May 5, 2015.

^Petitioner’s current application is untimely. To be considered, an application for post-conviction relief must be filed within two years of the conviction. La. C. Cr. P. Art. 930.8. The conviction in this case has been final since 2008 and Petitioner has not satisfied an exception to the two-year time limitation for seeking post-conviction relief.

For the foregoing reasons, Petitioner’s “Second and Successive Application for Post-Conviction Relief Review In Interest of Justice Art. 930.4 Actual Innocence— Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)” filed April 10, 2015 is DENIED. The Clerk of Court is directed to provide a copy of this Ruling to the Petitioner, his custodian and the District Attorney.

RENDERED, READ AND SIGNED this 21st day of July, 2015, in Shreveport, Caddo Parish, Louisiana.

/s/ RAMONA L. EMANUEL DISTRICT JUDGE

SERVICE INFORMATION:

Jerry L. Williams # 523820 General Delivery Louisiana State Penitentiary Angola, Louisiana, 70712 Caddo Parish District Attorney’s Office


text:
    STATE EX REL. Fate Vincent WINSLOW v. STATE of Louisiana
    No. 2015-KH-2193
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO

PER CURIAM:

|! Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Winslow v. State, 15-0658 (La. 1/25/16), 184 So.3d 15.


text:
    STATE EX REL. John BRASHEARS v. STATE of Louisiana
    No. 2016-KH-0700
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

| denied. Relator did not raise the issue of which he complains in his- original writ application to the court of appeal in 2007, and thus he waived the issue. The decision of the court of appeal became final in 2007 and cannot be revisited now. See Brashears v. Cain, 07-0525 (La. App. 5 Cir. 7/31/07) (unpub’d).

Relator has now fully litigated three applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930,4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Rodney FORTENBERRY v. STATE of Louisiana
    No. 2016-KH-0337
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON

PER CURIAM:

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

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

Johnson, C.J., n.s.


text:
    STATE EX REL. Terry Melvin JACKSON v. STATE of Louisiana
    No. 2016-KH-0536
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

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

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


text:
    STATE EX REL. Earton Lynn SMITH v. STATE of Louisiana
    No. 2016-KH-0184
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF BOSSIER

PER CURIAM:

11 Denied. The district court considered and ruled upon relator’s April 2012 application for post-conviction relief, after which the court of appeal and this Court both denied writs, see State ex rel. Smith v. State, 13-0677 (La. 9/20/13), 123 So.3d 166, relator therefore fails to show that the court of appeal erred when it denied his subsequent motion to enforce.

Moreover, relator has previously exhausted his right to state collateral review. See State ex rel. Smith v. State, 15-1346 (La. 11/7/16), 203 So.3d 1042, reconsideration denied, 15-1346 (La. 1/13/17), 215 So.3d 257.


text:
    STATE EX REL. Rickey LAPRIME v. STATE of Louisiana
    No. 2016-KH-0336
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY

PER CURIAM:

|! Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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


text:
    STATE EX REL., Allen D. WALL v. STATE of Louisiana
    No. 2016-KH-0692
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIFTH JUDICIAL DISTRICT COURT, PARISH OF FRANKLIN

PER CURIAM:

| denied. Relator’s sentencing claim is not cognizable on collateral review. La. C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172. In addition, relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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


text:
    STATE EX REL. Sheldon MANIERI v. STATE of Louisiana
    No. 2016-KH-0531
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON

PER CURIAM:

11 Writ granted. In light of the Supreme Court’s holding in Montgomery v. Louisiana, 577 U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) that Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) announced a substantive rule of constitutional law that applies retroactively, we hereby vacate relator’s sentence and remand to the 24th Judicial District Court for further proceedings consistent with the views expressed in State v. Montgomery, 13-1163 (La. 6/28/16), 194 So.3d 606, and for resentencing pursuant to La.C.Cr.P. Art. 878.1.

After he is resentenced, that judgment of sentence is included by statute among those which a defendant may appeal. See La.C.Cr.P. art. 912(C)(1). Furthermore, although this court originally had exclusive appellate jurisdiction over this pre-1982 felony conviction, see La. Const. art. V, § 5(E), after the resentencing to which relator is now entitled, appellate jurisdiction for purposes of any review of his new sentence will vest in the intermediate court of appeal. See La. Const. art. V, § 10 (eff. July 1, 1982, “[A] court of appeal has appellate jurisdiction of ... all criminal cases triable by a jury,” except when a law has been | ¡.declared unconstitutional or when the death penalty has been imposed); see, e.g., State ex rel. Hudson v. State, 16-1731 (La. 1/9/17), 208 So.3d 882.

Johnson, C.J., n.s.


text:
    STATE EX REL. Wesley RICKS v. STATE of Louisiana
    No. 2016-KH-0229
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF MORE-HOUSE

PER CURIAM:

| denied. Relator fails to state the grounds upon which relief is sought with reasonable particularity, La.C.Cr.P. art. 926(B)(3), and fails to carry his burden of proof post-conviction, La.C.Cr.P. art. 930.2.

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


text:
    STATE of Louisiana v. Troy TAYLOR
    NO. 2017-KP-0684
    Supreme Court of Louisiana.
    July 27, 2017
   Applying for Reconsideration of this Court’s order dated June 16, 2017, Parish of Orleans, 60th Judicial District Court Div. I, No. 503-161; to the Court of Appeal, Fourth Circuit, No. 2016-K-1252;

Reconsideration not considered. See La. S.Ct. Rule X, § 6.


text:
    Adam IRVIN, Carl Irvin and Lonnie Hammond, Jr. v. Howard Anthony BROWN and the Honorable Arthur A. Morrell
    NO. 2017-C-1327
    Supreme Court of Louisiana.
    August 2, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 2017-07039; to the Court of Appeal, Fourth Circuit, No. 2017-CA-0614;

Denied.

WEIMER, J., would grant.

HUGHES, J., would grant.


text:
    Dwayne G. ALEXANDER v. James P. ENGLADE
    NO. 2017-CC-1344
    Supreme Court of Louisiana.
    August 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. E, No. 155905; to the Court of Appeal, First Circuit, No. 2017 CW 1034

| t Stay denied. Writ denied.


text:
    STATE EX REL. Hai A. DUONG v. STATE of Louisiana
    NO. 2016-KH-0073
    Supreme Court of Louisiana.
    August 4, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 12-1285; to the Court of Appeal, Fifth Circuit, No. 15-KH-662.

| denied.


text:
    STATE EX REL. Melvin JOHNSON v. STATE of Louisiana
    NO. 2016-KH-0403
    Supreme Court of Louisiana.
    August 4, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 360731; to the Court of Appeal, Fourth Circuit, No. 2016-K-0046

| denied.


text:
    STATE EX REL. Gregory FORD, Jr. v. STATE of Louisiana
    NO. 2016-KH-0409
    Supreme Court of Louisiana.
    August 4, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 11-721; to the Court of Appeal, Fifth Circuit, No. 16-KH-57;

11 Denied.

G.UIDRY, J., recused.


text:
    STATE EX REL. Mickell CALVERT v. STATE of Louisiana
    NO. 2016-KH-0519
    Supreme Court of Louisiana.
    August 4, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. H, No. 05-CR10-92582; to the Court of Appeal, First Circuit, No. 2015 KW 1688

| denied.


text:
    STATE EX REL. Rondy VERNON, Sr. v. STATE of Louisiana
    NO. 2016-KH-0322
    Supreme Court of Louisiana.
    August 4, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. H, No. 76-160, 79-584, 94-0327, & 9-CR4-67763; to the Court of Appeal, First Circuit, No. 2015 KW 1620;

11Denied.

WEIMER, J., recused.


text:
    STATE of Louisiana v. Isabell BUTLER
    NO. 2017-KK-1357
    Supreme Court of Louisiana.
    August 7, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 521-153; to the Court of Appeal, Fourth . Circuit, No. 2017-K-0636

| (Writ granted. The evidence under La. C. E. article 404(B) may be admitted.

WEIMER, J., would grant and docket.

CRICHTON, J., recused.

GENOVESE, J., would deny.


text:
    Cassandra SMITH and Keion Smith v. Ernest “Freddie” CHARBONNET and Arthur Morrell in His Capactiy as Clerk of Criminal District Court for the Parish of Orleans
    NO. 2017-C-1364
    Supreme Court of Louisiana.
    August 7, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 2017-07090; to the Court of Appeal, Fourth Circuit, No. 2017-CA-0634.

j^Denied.


text:
    J.P. MORGAN CHASE BANK NATIONAL ASSOCIATION v. Sharon Levette WEATHERSPOON
    NO. 2017-CC-1401
    Supreme Court of Louisiana.
    August 16, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 637,454; to the Court of Appeal, First Circuit, No. 2017 CW 0810

|, Stay denied. Writ denied.


text:
    STATE of Louisiana v. Julius HANKTON
    NO. 2017-KD-1415
    Supreme Court of Louisiana.
    August 17, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 529-487; to the Court of Appeal, Fourth Circuit, No. 2017-K-676.

| denied.


author: HIGGINBOTHAM, J.

text:
    STATE of Louisiana v. Terry Joseph DUCOTE
    NO. 2016 KA 1457
    Court of Appeal of Louisiana, First Circuit.
    APRIL 12, 2017

      Frederick H. Kroenke, Jr. Baton Rouge, LA Attorney for Defendant-Appellant, Terry Joseph Ducote
    Warren L. Montgomery District Attor? ney Matthew Caplan Assistant District At torney Covington, LA Attorneys for Ap-pellee, State of Louisiana
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

| ?The defendant, Terry J. Ducote, was charged by bill of information with simple rape, a violation of Louisiana Revised Statutes 14:43 (prior to amendment by 2015 La. Acts, No. 184 § 1 & No. 256 § 1). He entered a plea of not guilty and, following a jury trial, was found guilty as charged. He filed motions for postverdict judgment of acquittal and new trial, both of which were denied. The defendant was sentenced to fourteen years at hard, labor without benefit of parole. He filed a motion to reconsider sentence, which was denied. He now appeals, challenging his sentence as excessive.

FACTS

On June 27, 2015, the victim, AD., who was eighteen years old, went to New Orleans with her mom, sister, stepfather, stepsister, and her stepbrother, the defendant, to visit a park and museum. When they returned home to the defendant’s father’s house, the defendant, the victim, and the victim’s sister walked to a gas Station, and the defendant purchased a bottle of vodka. The three of them then returned home and smoked marijuana in , the defendant’s vehicle. The victim testified that she smoked “one or two joints and two or three pulls from the pipe.” She stated that she felt “[rjeally relaxed and calm.” Afterward, .they went back inside. The victim’s sister went into her bedroom, and the victim and the defendant went into the defendant’s bedroom “to hang out more” and drink alcohol. The victim consumed about five or six shots of vodka, but the defendant did not drink any. The victim testified that the marijuana combined with the vodka “made it to where [her] body started getting so relaxed that [she] wasn’t able, to really move it.” She also testified that she began to feel dizzy. According to the victim, she was Lseated on the defendant’s bed, and the defendant was seated on the floor. She testified that the defendant began touching her thigh, and she told him to stop more than once. Rather than stop, the defendant began to get on top of the victim. At that point, according to the victim, she “wasn’t really able to speak anymore because of the intoxication and being high.”

The defendant began to undress the victim, but she “blacked out, and after that [she] remember[s] laying on the bed with [her] head by the pillows and him being on top of [her].” The victim testified that the defendant had vaginal sexual intercourse with her, and she did not give him permission to do so. The victim further testified that the defendant only stopped because she “was able to sober up” and tell the defendant that “it was hurting[.]” She stated that the defendant checked, and she was bleeding. Afterward, the victim fell asleep on the floor.

The next day, she packed her belongings and walked into the living room. She sent a text message explaining what happened to her sister, who was also in the living room. After receiving the text messages, the victim’s sister contacted them father who came and picked up the victim. The defendant also exchanged text messages with the victim prior to her leaving the house. The victim sent a message to the defendant stating, “I kept telling you no, so why did you keep going? The only reason it happened was because I was too f***ed up. You basically raped me.” The defendant sent a message to the victim stating, “Last night should have never happened. I don’t like being like that. I can’t stand doing anything with anybody, when one of us isn’t sober or at least can’t think straight.” He also sent messages stating, “If I could undo what’s been done, I would[;]” “I couldn’t control myself last night[;]” and “Please don’t hate me. I f***ed up and I know it.”

The victim’s father testified that he received a telephone call from the victim’s sister who was upset and crying. After talking to the victim’s sister, he left work and went to the defendant’s father’s house to pick up the victim. Upon his arrival] 4 the defendant approached him and attempted to apologize and “explain [himself],” but the victim’s father, who saw the victim sitting in the fetal position on the couch, helped her get her belongings and drove her straight to the police Station. The victim was then taken to Slidell Memorial Hospital for a rape examination, where the doctor found a tear on her vaginal wall.

On June 28, 2015, the defendant was interviewed and gave an audio and video-recorded Statement. The defendant also testified at trial. According to his testimony at trial, he performed oral sex on the victim on Friday, June 26, 2015, the day before the alleged rape. On cross-examination, he admitted that he did not mention that alleged sexual encounter during his videotaped interview. The defendant further testified that on Saturday, June 27, 2015, he and the victim smoked marijuana and sat in his car from 11:00 p.m. until 3:00 or 4:00 a.m. The defendant claimed that the victim stumbled “a little bit” but had steady hands and speech. He claimed that afterward, the two talked in his bedroom, and he fell asleep. The defendant testified that the victim drank vodka and drew on a plastic fish aquarium that was in his room. The defendant did not drink the vodka, but claimed that he “consumed a couple of alcoholic beverages” earlier that day at the park as well as when they arrived home from the park. He claimed that he did not mention his alcohol consumption to police officers because he did not “remember it until later.” According to the defendant, when he woke up, the victim was on top of him, kissing him. He testified that he “didn’t think anything out of it anymore” because they “messed around the night before.” He testified that the two engaged in sexual intercourse and that the victim consented.

EXCESSIVE SENTENCE

In his sole assignment of error, the defendant argues that the sentence imposed by the district court is excessive. Specifically, the defendant argues that the district court failed to consider factors surrounding the offense and offender including the | sfact that the defendant was twenty-three years old at the time of offense, did not have a felony record, was intoxicated at the time of the offense, had been successfully employed, and was not “acting in a predatory fashion.”

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate the defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. Further, a sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one’s sense of justice. A district court judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Hurst, 99-2868 (La.App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962.

Louisiana Code of Criminal Procedure Article 894.1 sets forth the factors for the district court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect that the trial court adequately considered the guidelines. See State v. Herrin, 562 So.2d 1, 11 (La. App. 1st Cir.), writ denied, 565 So.2d 942 (La. 1990). The articulation of the factual basis for a sentenée is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). Even when the district court assigns no reasons, the sentence will be set aside on Rappeal and remanded for sentencing only if the record is inadequate or clearly indicates the sentence is excessive. State v. Knight, 2011-0366 (La.App. 1 Cir. 9/14/11), 77 So.3d 302, 304, writ denied, 2011-2240 (La. 2/17/12), 82 So.3d 283. On appellate review of sentence, the relevant question is whether the district court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

Herein, the defendant was sentenced pursuant to La. R.S. 14:43B (prior to amendment by 2015 La. Acts, No. 184 § 1 & No. 256 § 1), which provided:

Whoever commits the crime of simple rape shall be imprisoned, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than twenty-five years.

The defendant was sentenced to fourteen years at hard labor without the benefit of parole. Prior to imposition of sentence, the district court found that the defendant was in need of a custodial environment provided most effectively by commitment to an institution. It also found that a lesser sentence would deprecate the seriousness of the .defendant’s crime. See La. Code Crim. P. art. 894.1A(2) & (3). In ruling on the motion to reconsider sentence, the district court stated that it researched sentences imposed by other courts for the same offense and based on similar facts and circumstances. The district court specifically noted that it considered cases wherein the offenders did not have prior felony records and those in which intoxicating agents were used.

Based on our review of the record, we find that the district court adequately considered the criteria of Article 894.1 and did not abuse its discretion in imposing the sentence. The court noted that.it considered the Article 894.1 sentencing provisions and specifically .stated that it considered the defendant’s intoxicated state at the time of the offense and his lack of a felony record. The court also explicitly stated that to impose a “lesser sentence [would] deprecate the seriousness of the | defendant’s crime.” See La. Code Crim. P. art, 894.1A(3). Additionally, although the defendant argues he was “not acting in a predatory fashion” and there was “no violence involved,” the testimony established that the defendant provided, but did not consume, the vodka which intoxicated the victim, the victim attempted to stop the defendant - from raping her, but was unable to move her body, and that the encounter resulted in a tear to the victim’s vaginal wall. Accordingly, the sentence imposed was not grossly disproportionate to the severity of the offense and, Thus, was not unconstitutionally excessive.

For all of the above reasons, this assignment of error is without merit.-

CONVICTION AND SENTENCE AFFIRMED.

      . We reference the victim herein by initials only. See La. R.S. 46:1844W.

      . The victim’s sister lived with their mother in the defendant’s father’s house. The victim lived with her father and was only visiting her mother for the weekend.