author: GRAVOIS, J.

text:
    STATE of Louisiana v. Jermaine JAMISON
    NO. 17-KA-49
    Court of Appeal of Louisiana, Fifth Circuit.
    May 17, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Thomas P. Sanderson
    COUNSEL FOR DEFENDANT/APPELLANT, JERMAINE JAMISON, Bruce G. Whittaker
    DEFENDANT/APPELLANT, Jermaine Jamison, In Proper Person
    Panel composed of Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson
   GRAVOIS, J.

| TDefendant, Jermaine Jamison, appeals his conviction and sentence for one count of possession of heroin in violation of La. R.S. 40:966(C), and his habitual offender adjudication and enhanced sentence. For the following reasons, we: 1) affirm defendant’s conviction; 2) reinstate and affirm defendant’s original sentence; 3) affirm defendant’s habitual offender adjudication; 4) vacate defendant’s habitual offender sentence; 6) remand the matter for resen-tencing and for correction of the Uniform Commitment Order as noted herein; and 6) grant appellate counsel’s motion to withdraw as counsel of record for defendant.

PROCEDURAL HISTORY

On August 24, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant, Jermaine Jami-son, with possession of heroin in violation of La. R.S. 40:966(C). Defendant pled not guilty at his arraignment on September-30, 2015.. On that same day, defendant filed omnibus motions, which were never heard or ruled .upon. On November 17,. 2015, defendant withdrew his not. guilty plea and pled guilty to the offense charged. On that same day, defendant was sentenced to six years in the Department of Corrections, a $500.00 fine, and court costs. Defendant was given credit for “all time served in this particular matter.”

Also on November 17, 2015, the State filed a habitual offender 'bill of information charging defendant as a second felony offender. Defendant stipulated to the habitual offender bill on that same day. The trial court then vacated | ^.defendant’s original sentencé and sentenced him as a second felony offender to six years in the Department of Corrections without the benefit of probation or suspension of sentence, a $500.00 fine, and court costs. The enhanced sentence was ordered to run concurrently with the sentences in district court case number 15-4972, and the trial judge explained that it was his intention that “this sentence be run concurrent with any parole revocation that [defendant] may be facing.” Defendant was given credit for “any time [he] served in connection with this matter.”

Thereafter, defendant sought this Court’s supervisory review of the trial court’s November 30, 2015 denial of his pro se motion for a probable cause hearing. This Court denied defendant’s writ application, finding that as a result of his guilty plea, he was not entitled to relief, as he waived all non-jurisdictional defects in the proceedings leading up to his guilty plea. See State v. Jamison, 15-734 (La. App. 5 Cir. 12/3/15) (unpublished writ disposition).

On April 26, 2016, defendant filed a Uniform Application for Post-Conviction Relief. In response, the trial court ordered the State to file a response or answer to defendant’s application for post-conviction relief. On August 8, 2016, defendant filed a Motion for Summary Disposition, wherein he stated that no ruling, opinion, or judgment was rendered as to his application for post-conviction relief. The court again ordered the State to file a response. On August 31, 2016, defendant filed an additional Motion for Summary Disposition, and on September 6, 2016, the tidal court ordered that an evidentiary hearing be held, as it found that the State had failed to comply with the court’s orders to file a response or an answer. The State filed its response and answer on October 20, 2016. At the conclusion of a hearing conducted on October 24, 2016, the trial court issued an Isorder dismissing defendant’s application for post-conviction relief without prejudice as premature.

Defendant filed a writ application with this Court requesting an out-of-time appeal, which was denied, with this Court ruling that it did not have authority to grant defendant an out-of-time appeal. See State v. Jamison, 16-700 (La. App. 5 Cir. 12/13/16) (unpublished writ disposition). On December 27, 2016, defendant filed a Motion for Out of Time Appeal with the trial court pursuant to State v. Counterman, 475 So.2d 336 (La. 1985). On January 4, 2017, the trial court granted defendant an out-of-time appeal and dismissed his application for post-conviction relief without prejudice. This appeal followed.

FACTS

Because defendant’s conviction was the result of a guilty plea, the facts underlying the crime of conviction were not fully developed in the record. However, the bill of information indicates that on August 6, 2015, defendant “violated La. R.S. 40:966(C) in that he did knowingly or intentionally possess a controlled dangerous substance, to wit: Heroin.”

LAW AND ANALYSIS

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

|4In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by ‘a brief referring to anything in the record that might arguably support the appeal’ ” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

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

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

Defendant’s appellate counsel asserts that, after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Counsel avers that the bill of information appears to be in order, and defendant was present during the critical proceedings against him. Counsel notes that defendant pled guilty pursuant to a plea agreement and did not reserve the right to seek review of any trial court ruling pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). He also notes that defendant was advised that by pleading guilty, he was giving up his rights to an appeal and that defendant’s answers throughout the colloquy were sensible, direct, and articulate. He contends that defendant’s sentence of six years as a second felony offender was imposed in conformity with the plea agreement and was advantageous to defendant. Appellate counsel has filed a motion to withdraw as counsel of record for defendant which states he has made a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal and no ruling of the trial court that can arguably support the appeal. Counsel asserts that he has notified defendant of this filing and has advised defendant of his right to file a pro se supplemental brief in this appeal.

The State has filed a response, agreeing that counsel has conducted a conscientious and thorough review of the trial court record. The State submits that counsel has conformed with the procedures set forth in Anders and Jyles, supra, and that counsel’s motion to withdraw should be granted. The- State further agrees that the record does not contain any non-frivolous issues to be raised on appeal.

An independent review of- the record supports appellate counsel’s assertion that there' are no non-frivolous issues to be raised on appeal.

|fiThe bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the charged offense. It also sufficiently identified defendant and the crime charged. See generally La. C.Cr.P. arts. 464-466.

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

Further, defendant pled guilty as charged to possession of heroin in violation of La. R.S. 40:966(0). He admitted to being a second felony offender as alleged in the habitual offender bill of information. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty, plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. An unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the habitual offender hearing. State v. Schaefer, 97-465 (La.App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

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

Next, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A Lguilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced, to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. In such a case, the defendant has been denied due process of law in that the plea was not given freely and kpowingly. State v. Dixon, 449 So.2d 463, 464 (La. 1984).

The record shows that defendant was aware that he was pleading guilty to possession of heroin in violation of La. R.S. 40:966(C). On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin. Defendant signed the waiver of rights form, indicating therein that he understood that he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood that he was waiving these rights.

During the colloquy, defendant acknowledged that he reviewed the guilty plea form with his attorney,' understood the concepts contained in the form, and did not have any questions. He denied that he was promised, threatened, or forced in any way to plead guilty. He provided his daté' of birth, indicated that the last grade he completed was eighth grade, and answered affirmatively when asked if he could read and write the English language. Defendant was advised of his right to an attorney and his right to appeal upon conviction. The judge explained that by pleading guilty, he was waiving or giving up his rights. Defendant indicated that he understood this.

| ^Defendant specified that he wanted to plead guilty and acknowledged by doing so, he was admitting that he committed the crime to which he was pleading guilty. Defendant indicated that he understood that his guilty plea must be entered knowingly, intelligently, and voluntarily on his part and answered affirmatively when asked if pleading guilty was in his best interest.

The waiver of rights form reflects the entire -sentencing range of four to ten years, that defendant could receive for his conviction. It further reflects that defendant would receive- a sentence of six years in the Department of Corrections, with credit for all time served, plus court costs, fines, and fees, and that the sentence would “run concurrent with any other sentence [defendant was] serving & with parole time.” During the colloquy, the trial court advised defendant that by. pleading guilty, he faced a sentence of not less than four nor more than ten years imprisonment for the offense. Although the waiver of rights form indicated that defendant would receive a six-year sentence in the Department of Corrections, the trial judge did not verbally advise defendant during the colloquy that he would impose a six-year sentence.

La. C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty-plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. “Any variance' from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.” La. C.Cr.P. art. 556.1(E). Violations of La. C.Cr.P. art. 556.1 that do not rise to the level of Boy- kin violations are subject to harmless error analysis. State v. Craig, 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64.

| nHere, the trial judge advised defendant of the mandatory minimum penalty and the maximum possible penalty by his advisal of the sentencing range under the statute in the waiver of rights form and during the colloquy in compliance with La. C.Cr.P. art. 556.1(A)(1). The waiver of rights form also includes a notation indicating that defendant’s sentence would be six years in the Department of Corrections, plus court costs, fines, and fees. The record indicates that the trial court asked defendant whether the signature on the form was his and whether he reviewed the form with his attorney. Defendant responded affirmatively.

Further, the trial court advised defendant that his conviction could be used against him to enhance or increase sentences or penalties in the future. After the colloquy with defendant, the trial judge found that defendant had knowingly, intelligently, freely, and voluntarily entered his plea of guilty and accepted his plea. After sentencing delays were waived, on the possession of heroin charge, the trial court sentenced defendant to six years in the Department of Corrections, a $500.00 fine, plus court costs, with credit for all time served in this particular offense.

With respect to the habitual offender proceeding, defendant executed a waiver of rights form, which reflects that defendant was informed that by “pleadflng] guilty,” he was giving up his right to “plead not guilty,” to have a hearing, and to force the District Attorney to prove that he was the same individual with a prior felony record, that the time period between the completion of the sentence and the date of the crime was less than ten years, and that he was told of his Boykin rights prior to when he entered any prior guilty plea. He was further informed of his right to remain silent at such a hearing and not to have his silence held against him. Defendant placed his initials next to these provisions in the waiver of rights form, including one wherein he was advised that the sentencing range as a habitual offender was five to twenty years and that he would receive a | msentence of six years in the Department of Corrections. Defendant indicated that he was satisfied with his attorney and the court’s efforts to explain the rights and consequences of his “guilty plea” and that he was not in any way forced, coerced, or threatened. The waiver of rights form is dated the same date as defendant’s stipulation to the habitual offender bill of information and was signed by the defense attorney, the trial judge, and defendant. The trial judge indicated on the form that he was accepting the plea as knowingly, intelligently, freely, and voluntarily made by defendant.

La. R.S. 15:529.1 requires the trial court to advise a defendant of the allegations contained in the habitual offender bill of information, his right to a hearing, and his right to remain silent. State v. Oliver, 14-428 (La.App. 5 Cir. 11/25/14), 165 So.3d 970, 976, writ denied, 14-2693 (La. 10/9/15), 178 So.3d 1001. The failure of the trial court to advise a defendant of his right to a trial and to remain silent is harmless error when the habitual offender status is established by competent evidence offered by the State at a hearing, rather than by the admission of the defendant. Id. However, there is reversible error when the defendant stipulates to the habitual offender bill of information without having been informed of his right to a hearing or his right to remain silent. Id.

Louisiana jurisprudence provides that if the record reflects that the defendant was advised of his habitual offender rights by the trial judge and/or his attorney, then the defendant intelligently waived his rights. Oliver, supra.

In the present matter, at the start of the habitual offender bill colloquy, defense counsel stated on the record: “I have gone over the Waiver of Rights Form. At this time Mr. Jamison will admit that he is a Second Felony Offender.” The trial judge then stated:

It is my understanding from your attorney that you wish to plead guilty as a Second Felony Offender. Do you understand you have a | n right to and are entitled to a trial by Judge in that matter and you are not required to plead guilty to that matter? You understand that?

Defendant answered “yes.”

The commitment further indicates that the trial judge advised defendant of his right to a habitual offender bill hearing, yet makes no mention of defendant’s right to remain silent. Review of the colloquy also does not indicate that defendant was advised of his right to remain silent. Later during the colloquy, the trial judge inquired as to whether defendant had any questions about “these forms” defendant signed and whether he understood those rights. The trial judge inquired as to whether defendant reviewed the form with his attorney, to which defendant indicated that he had.

Upon review, we find that although defendant was not completely advised of his habitual offender rights during the colloquy, the waiver of rights form, which was signed by defense counsel, the judge, and defendant, reflects that defendant was advised of his right to a hearing and to remain silent prior to his stipulation as a habitual offender. Further, defense counsel made a specific reference to the waiver of rights form prior to the judge’s acceptance of defendant’s stipulation to the habitual offender bill of information. As such, the record reflects that defendant was advised of his habitual offender rights and executed the waiver of rights form prior to the colloquy and his stipulation to the habitual offender bill. Accordingly, we find that there were no non-frivolous issues for counsel to raise on appeal involving defendant’s stipulation to the habitual offender bill of information.

haFurther, defendant admitted he was the same person convicted of attempted disarming of a police officer in case number 09-6506 in the 24th Judicial District Court. The trial court advised defendant that by “pleading guilty” in the habitual offender proceeding, he would be waiving certain rights, including the right to a trial “by [jjudge or jury” and to appeal, to confrontation, against self-incrimination, to require witnesses to appear and testify on his behalf, and to an attorney. Defendant denied having any questions regarding the waiver of rights form and indicated that he understood those rights and had reviewed the form with his attorney. He also acknowledged that his signature was on the bottom of the form. As to his habitual offender sentence, the trial court advised defendant that by “pleading guilty,” the maximum , sentence the court could impose was not less than-five years nor more than twenty years as a second felony offender:

Defendant again provided his name and date of birth, provided that the last grade that he completed was eighth, and indicated that he could read and write the English language. Defendant acknowledged that his stipulation must be knowingly, intelligently, freely, and voluntarily made, and he denied that he was promised, induced, or threatened in any way to plead guilty. Defendant acknowledged that he was “pleading guilty” because it was in his best interest, and that any subsequent conviction could be used to enhance or increase penalties in the future. Also; it appears that defendant received a substantial benefit for stipulating to the habitual offender bill of information, since there was discussion on the record before defendant stipulated to the habitual offender bill of information that the State believed it was possibly capable of proving defendant was at least a third felony offender and could face a life sentence. The trial court | ^agreed that defendant’s stipulation to the habitual offender bill of information was knowingly, intelligently, freely, and voluntarily made and accepted the stipulation.

By stipulating to the habitual offender bill of information, defendant .waived his right to a hearing and to any possible non-jurisdictional defects. Defendant is accordingly barred from asserting on appeal that the State.failed to produce sufficient proof at the habitual offender bill hearing when he waived the hearing. Schaefer, supra. See also State v. Crawford, 14-364 (La. App. 5 Cir. 12/23/14), 166 So.3d 1009, 1019.

Additionally, defendant’s sentences do not present any issues for appeal, except as noted in our errors patent review, infra. Defendant’s original sentence and his enhanced sentence fall within the sentencing ranges prescribed by statute. See La, R.S. 40:966(C) and La. R.S. 15:529.1. Defendant’s original sentence was vacated following his stipulation as a habitual offender. Further, defendant’s original and enhanced sentences of six years were imposed pursuant to, and in conformity with, the plea agreements. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Moore, 06-875 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 46; State v. Washington, 05-211 (La.App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173.

With respect to defendant’s original sentence, before the colloquy began, there was an exchange among the parties and the trial judge about the plea negotiations. Specifically, the trial judge stated: “I wouldn’t do five. The discussions were six. Quite obviously, it never got down to five.” Similarly, during the habitual offender sentence, the trial judge did not advise defendant that he would be sentenced to six years in the Department of Corrections. However, |14the waiver of rights forms and the discussion before the colloquy clearly indicate that defendant was aware of the six-year term. Therefore, we find that defendant was sentenced in accordance with the plea agreements despite the trial judge’s failure to verbalize the actual sentences during the colloquy before the sentences were imposed.

This Court also has applied La. C.Cr.P. art. 881.2(A)(2) to cases in which a defendant admits to the allegations in a habitual offender bill of information as part of a sentencing agreement. State v. Robinson, 15-661 (La.App. 5 Cir. 2/24/16), 186 So.3d 1269, 1272 (citing State v. Bolton, 02-1034 (La.App. 5 Cir. 3/11/03), 844 So.2d 135, 142, writ denied, 03-1159 (La. 11/14/03), 858 So.2d 417).

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

PRO SE SUPPLEMENTAL BRIEF

Defendant raises three assignments of error in his pro se supplemental brief, which assignments are addressed below.

PRO SE ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In his first and second pro se assignments of error, defendant argues that the trial court “exceeded its jurisdiction” by continuing to pursue a criminal prosecution when the bill of information was filed without a probable cause determination being made within forty-eight hours after his arrest. He contends that a citation or summons should have been issued to him following his arrest for |1Ka bill of information to be filed. Defendant attached the August 6, 2015 Jefferson Parish Arrest Report and Probable Cause Affidavit and the bill of information in case number 15-4972 to his pro se brief.

In Crosby, supra, the Louisiana Supreme Court held that an unqualified plea of guilty does not preclude review of jurisdictional defects. Crosby, 338 So.2d at 588. Jurisdictional defects are those which, even conceding a defendant’s factual guilt, do not permit conviction of the charged offense. Id. In Crosby, the Supreme Court listed the following examples of jurisdictional defects: (1) the lack of jurisdiction of the sentencing court; (2) the conviction represents double jeopardy; (3) the prosecution had prescribed at the time it was instituted; (4) the State lacked constitutional or legal power to try the defendant for the charged offense; (5) the statute under which prosecution is brought is unconstitutional; (6) the charge in the indictment does not constitute a crime; and (7) certain types of patent errors that prevent conviction for the offense. State v. Jefferson, 11-391 (La.App. 5 Cir. 12/28/11), 83 So.3d 1126, 1129-30. As previously discussed, defendant entered an unqualified guilty plea, and accordingly, we find that defendant’s arguments do not raise a jurisdictional defect for this Court’s review. These errors were not preserved for review, and accordingly, will not be addressed.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

In his third and final pro se assignment of error, defendant alleges that his trial counsel was ineffective as she failed to “consult” with him, failed to interview potential witnesses whose names he provided to her, and failed to file a motion for an evidentiary hearing and a motion to suppress evidence. Thus, he argues that his trial counsel failed to present the available defenses to him in violation of | ^“constitutionally required standards.” He also argues that he pled guilty on his trial counsel’s advice “which was based on her misinterpretation of the incident as provided by the District Attorney.” As evidence of her ineffectiveness,' defendant attached a letter between him and his trial counsel, as well as her response to his complaint to the Louisiana State Bar Association and other correspondence.

The Louisiana Supreme Court has held that generally a claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief, rather than on direct appeal, to afford the parties an opportunity to make an adequate record for review. State v. Truitt, 500 So.2d 355, 359 (La. 1987). However, if the record on appeal contains sufficient evidence to decide the issue, and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Armstead, 07-741 (La. App. 5 Cir. 2/6/08), 980 So.2d 20, 24, writ denied, 08-601 (La. 10/3/08), 992 So.2d 1010.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that 1) his attorney’s performance was deficient, and 2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Allen, 06-778 (La.App. 5 Cir. 4/24/07), 955 So.2d 742, 750, writ denied, 08-2432 (La. 1/30/09), 999 So.2d 754. The error is prejudicial if it is so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Allen, supra. In order to show prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the case would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Allen, supra.

|17In order to prevail, the accused must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2066. An alleged error that is within the ambit of trial strategy does not establish ineffective assistance of counsel, because “opinions may differ on the advisability of such a tactic.” State v. Singleton, 05-634 (La.App. 5 Cir. 2/14/06), 923 So.2d 803, 811, writ denied, 06-1208 (La. 11/17/06), 942 So.2d 532.

Decisions relating to failure to investigate certain theories or other trial preparation issues would require an evidentiary hearing, and could not possibly be decided in the appeal. State v. Simmons, 13-258 (La.App. 5 Cir. 2/26/14), 136 So.3d 358, 370, writ denied, 14-674 (La. 1/31/14), 152 So.3d 151. Further, only in an evidentiary hearing in the district court, where the defendant could present evidence beyond that contained in the record on appeal, could the allegations be sufficiently investigated. Id. In the present case, upon review, we find that the limited record on appeal before us is insufficient to consider defendant’s ineffective assistance of counsel claim. Accordingly, we decline to address this assignment of error.

ERRORS PATENT REVIEW

Defendant requests an errors patent review. However, this Court routinely reviews the record for errors patent in accordance with La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990), regardless of whether the defendant makes such a request.

When imposing defendant’s enhanced sentence, the trial judge stated that it was his intention “that this sentence be run concurrent with any parole revocation that [defendant] may be facing. Understand that I don’t control your parole revocation, but it is my intention that this be concurrent with your parole revocation, if your actual parole is revoked.” (Emphasis added.) La. C.Cr.P. art 879 provides that “[i]f a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.” While there is no prohibition against a trial judge ordering a sentence to run concurrently with an existing parole revocation, we find that the instant enhanced sentence is indeterminate, and thus in violation of La. C.Cr.P. art. 879, because defendant’s parole status at the time his enhanced sentence was imposed is unclear from the record. Therefore, we vacate defendant’s habitual offender sentence and remand the matter to the trial court for resentencing of defendant as a habitual offender, including clarification of defendant’s parole status as of the time of re-sentencing. We also accordingly reinstate and affirm defendant’s original sentence.

Additionally, when sentencing defendant as a habitual offender, the trial court vacated the original sentence, imposed the enhanced sentence, and further ordered defendant to pay a fine of $500.00 as was previously imposed on original sentencing. The habitual offender statute, La. R.S. 15:529.1, does not, however, authorize the imposition of a .fíne, but only provides for enhanced sentences relating to the term of imprisonment. State v. Dickerson, 584 So.2d 1140 (La. 1991). Thus, the trial court did not have authority to impose a fine on resentencing under La. R.S. 15:529.1, despite the provision for a fine in the underlying criminal reference statute. However, because we have already vacated defendant’s enhanced sentence and' reftiandéd the matter to the trial court for resentencing, no further action is required at this time concerning this patent error.

Finally, the record contains only one hard labor commitment which reflects both the original and habitual offender proceedings. The hard labor commitment does not reflect that the trial judge ordered defendant’s original sentence,to run concurrently with his sentences in case number 15-4972. The hard labor commitment is accurate as to the habitual offender sentence that the trial judge |19ordered the “above sentence run concurrently with # 15-4972 and any parole revocation, excluding court costs and fees.” Although the original sentence on count one was vacated, we have reinstated and affirmed the original sentence, and accordingly remand the matter for correction of the Uniform Commitment Order to include the concurrent nature of defendant’s original sentence to ensure accuracy in the record. Upon resentencing, we'also direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected Uniform Commitment Order to the officer in charge of the institution to which defendant has been sentenced and the Department of Corrections’ legal department. See State v. Long, 12-184 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 (citing La. C.Cr.P. art. 892(B)(2)).

CONCLUSION

For the foregoing reasons, defendant’s conviction of possession of heroin is affirmed, his original sentence thereon is reinstated and affirmed, his habitual offender adjudication is affirmed, his habitual offender sentence is vacated, and the .matter is remanded for resentencing and for correction, of the Uniform Commitment Order. Further, appellate counsel’s motion to withdraw as counsel of record for defendant is granted.

CONVICTION AFFIRMED; ORIGINAL SENTENCE REINSTATED AND AFFIRMED; HABITUAL OFFENDER ADJUDICATION AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; REMANDED FOR RESENTENCING AND FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER; MOTION TO WITHDRAW GRANTED

      . Defendant also pled guilty to various misdemeanor offenses in case number 15-4972, which is not part of the present appeal.

      . Although the trial court did not say "at hard labor” when sentencing defendant, the court did state that defendant's sentence was to be served "in the Department of Corrections.” This Court has previously held that when the trial judge states that the defendant is sentenced to the "Department of Corrections,” the sentence is necessarily at hard labor; therefore, no corrective action is necessary. See State v. Martin, 10-710 (La.App. 5 Cir. 5/24/11), 70 So.3d 41, writ denied, 11-1367 (La. 2/3/12), 79 So.3d 1023, cert. denied, 568 U.S. 839, 133 S.Ct. 142, 184 L.Ed.2d 69 (2012).

      . When sentencing defendant in district court case number 15-4972, the trial judge articulated that those sentences were to run concurrently with the instant sentence.

      . The court recommended drug treatment and any suitable self-help programs available to defendant.

      . In the habitual offender bill of information, the State alleged a 2011 Jefferson Parish predicate conviction of attempting to disarm a police officer.

      . The court again recommended drug treatment and any suitable self-help programs available to defendant.

      . The trial court ordered that the motion for an out-of-time appeal was granted specifically in district court case number 15-4971.

      . In Bradford, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      . Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed on his behalf and that he had until February 27, 2017 to file a
        pro se supplemental brief. Defendant filed a pro se supplemental brief with this Court on March 6, 2017. Defendant filed an additional pro se supplemental brief with this Court on April 6, 2017, requesting an errors patent review by this Court.

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

      . The waiver of rights form lists the crimes defendant pled guilty to under the instant case number and case number 15-4972. Specifically, the form lists "40:966(C)(1)(B)(11), "40:966(D)(1) ... 32:123(B);” as those crimes to which defendant pled guilty. The form lists the incorrect statutory citation for possession of heroin. The correct statute is La. R.S. 40:966(C)(1). Nevertheless, the colloquy between the trial judge and defendant reveals that defendant was aware that he was pleading guilty to possession of heroin, as evidenced by the court’s reading of the language of the statute and defendant’s acknowledgment that he understood what constituted the crime of possession of heroin.

        . The record does not reflect that this was a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The "best interest” or Alford plea is one in which the defendant pleads guilty while maintaining his innocence. McCoil, 924 So.2d at 1122. Although defendant agreed that the plea was in his best interest, he also admitted his guilt in this matter. Further, there was no mention of Alford in the waiver of rights form or during the colloquy.

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

      . During the colloquy, defendant questioned whether one of his convictions in case number 15-4972 was being used as the predicate conviction for the habitual offender bill of information. The trial judge clarified that defendant was being habitually billed on the conviction of possession of heroin and the predicate conviction of attempted disarming of a police officer. Following the judge’s explanation, defendant indicated that he had no further questions.

      . At .the time the offense was committed, a conviction under La. R.S, 40:966(C)(1) for a Schedule I controlled dangerous substance carried a term of imprisonment at hard labor for “not less than four years nor more than ten years and may, in addition, be required to pay a fine of not more than five thousand dollars.” La. R.S. 15:529.1(1) provided the sentence shall be for a determinate term of "not less than one-half the longest term and not more than twice the longest term” prescribed for the underlying conviction.

      . It is noted that the habitual offender waiver of rights form states that defendant would receive six years in the Department of Corrections. It is silent as to the $500,00 fine and court costs. Nonetheless, the trial court imposed the $500.00 fine and court costs when enhancing defendant’s sentence, A fine is not authorized by La. R.S. 15;529.1. See Errors Patent Discussion, infra. Further, it seems that defendant was aware that he would be subject to court costs on his enhanced sentence, since costs were imposed on his original sentence as well as his sentences for case number 15-4972.

      . Because defendant’s arguments in his pro se assignments numbers one and two overlap, they are addressed together.

      .Defendant attached these items and other correspondence to his pro se brief, An appellate court is precluded from considering evidence which is not part of the record. Exhibits attached to an appellate brief, but not offered into evidence at trial, are not part of the appellate record and are beyond the scope of appellate review. The bill of information in case number 15-4972 and the correspondence attached to defendant’s pro se brief are not a part of the appellate record, and thus, will not be considered. State v. Wilt, 14-823 (La.App. 5 Cir. 4/29/15), 170 So.3d 317, 324 n.8, writ denied, 15-1055 (La. 5/2/16), 206 So.3d 877, The arrest report and probable cause affidavit do appear in the record.

      . See footnote 18, supra.

      . See State v. Ott, 12-111 (La.App. 5 Cir. 10/16/12), 102 So.3d 944, 955.

      . The hard labor commitment and the Uniform Commitment Order reflect that defendant was "given credit for time served from date of initial arrest until today for each day defendant actually served.” The transcript indicates that for his enhanced sentence, defendant was given credit "for any time served in connection with this matter.” Therefore, we find that the commitment and the Uniform Commitment Order differ from the sentencing transcript. See State v. Lynch, 441 So.2d 732, 734 (La. 1983). Nevertheless, credit for time served is self-executing under La. C.Cr.P. art. 880.


source: Caselaw Access Project

author: MURPHY, J.

license: Public Domain

text:
    ROUBION SHORING COMPANY, LLC and Roubion Construction Co., L.L.C. v. CRESCENT SHORING, L.L.C., Christopher Lytle, Alan J. Tucker & Thomas H. O’Neil Roubion Construction Co., L.L.C. v. Catina Curtis and Marvin Curtis, Michelet Paul and Olgath Augustin Paul, Trena M. Lafrance, Yvette Hopkins and Cornelius Hurst, Sabrina Morrison and James L. Pollard, Connie Walker and Gregory Francis Wilson, Sr., Joyce Legaux and Gerald Legaux, Lorraine McElwee and John McElwee, Ella Stanford and Willard Stanford, Latoya Hills and Shane Lagarde, Sr., and Roland Rodney
    NO. 16-CA-540
    16-CA-541
    Court of Appeal of Louisiana, Fifth Circuit.
    May 17, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, ROUBION CONSTRUCTION COMPANY, L.L.C., Andrea V. Timpa, Kyle Schonekas, Thomas M. McEachin, Teva Sempel, Raymond B. Landry
    COUNSEL FOR DEFENDANT/AP-PELLEE, ROLAND RODNEY, Andrea M. Jeanmarie
    Panel composed of Fredericka Homberg Wicker, Robert M. Murphy, and Stephen J. Windhorst
   MURPHY, J.

| plaintiffs, Roubion Shoring Co., LLC and Roubion Construction Co., LLC, (hereinafter “Roubion”), have appealed the trial court’s grant of defendant, Roland Rodney’s exceptions of No Cause of Action, No Right of Action and Prescription. For the reasons that follow, we vacate the judgment granting the exceptions and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

After Hurricanes Katrina and Rita, Mr. Rodney, along with numerous other local residents, obtained a grant from the Louisiana State Hazard Mitigation Program to elevate his home. Crescent Shoring, LLC, (“Crescent”), was one of the contractors performing home elevation for homeowners that received grant money to elevate their homes. On January 30, 2009, Mr. Rodney entered into a contract with Crescent Shoring, LLC, (hereinafter “Crescent”), to elevate his home located at 3125 Keithway Drive, Harvey, Louisiana; On January 26, 2012, Crescent entered into a contract with Roubion as a subcontractor to assist in performing the work under the contract. Roubion performed services under the subcontractor agreement and although Crescent was paid for much of the work performed by Roubion, Crescent did not pay Roubion.

On April 4, 2013, Roubion filed and recorded liens against several homeowners, including Mr. Rodney, for services rendered by Roubion in connection with elevating the homes. On April 3, 2014, Rou-bion filed a Petition to Enforce Liens against these homeowners, including Mr. Rodney, in a suit bearing 24th Judicial District Court number 737-093. On August 4, 2014, Mr. Rodney filed Exceptions of No Right of Action, No Cause of Action, and Prescription, Improper Cumulation of Actions, and Failure to Include Indispensable Parties. Before- all of |¡¡these exceptions could be heard, this matter was transferred to another division of the 24th Judicial District Court, where it was consolidated with, a suit entitled Roubion v. Crescent Shoring, LLC, bearing 24th Judicial District Court number - 729-195. On December 8, 2015, Mr. Rodney filed a second pleading entitled Exceptions of No Right of Action, No Cause of Action, and Prescription, Improper Cumulation of Actions, and Failure to Include Indispensable Parties. Following a hearing on these motions, in a judgment dated March 16, 2016, the trial court sustained the Exceptions of No Cause of Action, No Right of Action and Prescription, denied the Exception of Improper Cumulation of Actions, and found the Exception of Failure to Include Indispensable Parties to be moot. On March 30, 2016, Roubion filed a Motion for New Trial, arguing that the March 16, 2016 judgment was contrary to law and evidence. Following a hearing, by judgment dated May 18, 2016, the trial court denied the Motion for New Trial. On June 17, 2016, Roubion filed a Motion and Order of Appeal of the May 18, 2016 judgment. The motion was granted that same day.

LAW AND DISCUSSION

Motion for Appeal

Roubion appealed only the judgment rendered May 18, 2016, which was the judgment denying its motion for a new trial. The denial of a motion for new trial is not an appealable judgment absent a showing of irreparable harm. Morrison v. Dillard Dep’t Stores, Inc., 99-2060 (La.App. 1 Cir. 9/22/00), 769 So.2d 742, 744, writ denied, 00-3379 (La. 2/2/01), 784 So.2d 646. However, the Supreme Court has directed us to consider an appeal of the denial of a motion for new trial as an ^appeal of the judgment on the merits as well, when it is clear from the appellant’s brief that he intended to appeal the merits of the case. Smith v. Hartford Acci. & Indem. Co., 254 La. 341, 223 So.2d 826, 828-29 (1969); Fruehauf Trailer Co. v. Baillio, 252 La. 181, 210 So.2d 312, 315 (1968). It is obvious from Roubion’s brief that it intended to appeal the March 16, 2016, judgment sustaining the exceptions of no cause of action, no right of action and prescription, and dismissing its claims with prejudice. Thus, we will treat this appeal accordingly.

No Cause of Action

The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993). Evidence may not be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, at the hearing on the motion, the court reviews the petition and any documents attached to the petition, and accepts well-pleaded allegations of fact as true. Girtley v. ACE Am. Ins. Co., 15-397 (La.App. 5 Cir. 12/09/15), 182 So.3d 351, 355. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So.2d 127, 131.

Appellate review of a judgment relating to an exception of no cause of action is de novo because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987 (La. 11/28/01), 801 So.2d 346, 349.

In the Petition to Enforce Liens, Roubion alleges that defendants, including Mr. Rodney, were indebted to Roubion for “labor and services and/or materials related to house raising, pile driving, backfill-ing, plumbing and related services and tasks furnished by Roubion” at each property. The petition alleges that' URoubion was a subcontractor for Crescent and that defendants failed to obtain a bond with surety to secure performance of the contract and payment of all subcontractors. The petition further alleges that Crescent failed to pay Roubion the amounts due for work performed on defendants’ houses. The petition goes on to allege that Roubion has a privilege for payment against the property of each defendant and the defendants are personally liable to Roubion for their respective accounts. Finally, the petition states that defendants received a statement from Roubion and had not paid Roubion. Attached to the Petition to Enforce Liens was the lien recorded on each property, including Mr. Rodney’s property. The lien states that Roubion “performed certain labor and services and/or furnished materials in the construction, repair, and improvement of a building on or otherwise related to the following described property” located at 3125 Keithway, Harvey, Louisiana, The lien states .that an amount of $24,937.50 is owed and an invoice from Roubion to Crescent, describing the work as “slab elevation” is attached.

In his Exception of No Cause of Action, Mr. Rodney argues that the lien filed by Roubion does not comply with the Louisiana Private Works Act. Specifically, Mr, Rodney argues that pursuant to La. R.S. 9:4822C, the claim of the holder of a privilege expires if it is not properly preserved. He contends that his house was raised in December of 2012 and according to La. R.S. 9:4822C, Roubion had sixty days after raising the house to file the lien. Thus, the lien filed on April 4, 2013 was untimely.

As explained above, in ruling on an exception of no cause of action, all allegations in-the petition and any attached documents must be accepted as true. Unlike in a motion for summary judgment, evidence may not be introduced in an exception of no cause of action. Thus, Mr. Rodney could not submit evidence that the lien was not timely filed. Accepting the allegations in the Petition to Enforce RLiens and attached documents as. true, Roubion has stated a cause of actio.n against Mr, Rodney for enforcement of the lien. Thus, the trial court erred in sustaining this exception.

No Right of Action

The purpose of the peremptory exception of no right of action is to determine whether a plaintiff has a real and actual interest in an action or belongs to a particular class to which the law grants a remedy for a particular harm alleged. Dufrene v. Insurance Co. of State of Pennsylvania, 01-47 (La.App. 5 Cir. 5/30/01), 790 So.2d 660, 668. The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Westchester Surplus Lines Ins. Co. v. Pacorini Metals, 13-288 (La.App. 5 Cir. 12/19/13), 131 So.3d 445, 450. The burden of proof of establishing the exception of no right of action is on the exceptor. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La. 3/2/99), 739 So.2d 748, 755. The exception of no right of action tests whether the plaintiff has a “real and actual interest” in the action, but it does not raise questions of the plaintiffs ability to prevail on the merits or whether the defendant may have a valid defense. Lemmon Law Firm, LLC v. Sch. Bd. of St. Charles, 13-376 (La.App. 5 Cir. 12/12/13), 131 So.3d 231, 236. At the hearing on the exception of no right of action, the exception may be submitted on the pleadings, or evidence may be introduced either in support of or to controvert the objection raised when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. An appellate court reviewing a lower court’s ruling on an exception of no right of action should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person. Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 10-2267 (La. 10/25/11), 79 So.3d 246, 256. The determination of whether a plaintiff has a right to bring an action raises a question of law, which requires de novo review. Id.

Given the allegations contained in the Petition to Enforce Liens, Roubion certainly has a real and actual interest in the action and belongs to a particular class to which the law grants a remedy for the particular harm alleged. The burden of proof of establishing that Roubion had no right of action is on Mr. Rodney.

In support of his Exception of No Right of Action, Mr. Rodney repeats the same argument as he raised in his Exception of No Cause of Action, i.e., that according to La. R.S. 9:4822C, Roubion had sixty days after raising his house to file the lien, therefore, the lien filed on April 4, 2013 was untimely because it was filed more than sixty days after Roubion raised his house. Unlike the exception of no cause of action, in an exception of no right of action, evidence may be introduced to support the exception. In his exception, Mr. Rodney argues that the “exhibits filed in this matter support the assertion that the work on Exceptor’s home was concluded on or before December, 2012.” However, the transcript does not indicate that any exhibits were introduced at the hearing on the exception. Thus, none of the documents supporting Mr. Rodney’s claims were properly before the trial court at the hearing on the exceptions. See, Ray Brandt Nissan, Inc. v. Gurvich, 98-634 (La. App. 5 Cir. 01/26/99), 726 So.2d 474, 476. Further, evidence not properly and officially offered and introduced into evidence cannot be considered on appeal, even if it is physically placed in the record. Cao v. Liberty Mut. Ins. Co., 12-954 (La.App. 5 Cir. 05/30/13), 119 So.3d 725, 729. Accordingly, upon de novo review, we find the trial court erred in granting the Exception of No Right of Action.

^Exception of Prescription

When the exception of prescription is raised in the trial court prior to trial of the case, evidence may be introduced to support or controvert the exception. La. C.C.P. art. 931. If evidence is introduced, the trial court’s findings of fact are reviewed according to the manifest error standard; however, when no evidence is introduced, the appellate court simply determines whether the trial court’s finding was legally correct or incorrect. Weber v. Metro. Cmty. Hospice Found., Inc., 13-0182 (La.App. 4 Cir. 12/18/13), 131 So.3d 371, 375. As stated above, the transcript indicates that no exhibits were offered or accepted into evidence at the hearing on Mr. Rodney’s exceptions. Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Mgmt. Servs., 07-2143 (La. 5/21/08), 983 So.2d 84, 88. In the absence of evidence, an objection of prescription must be decided upon facts alleged in the petition with all allegations accepted as true. Cichirillo v. Avondale Indus., Inc., 04-2894 (La. 11/29/05), 917 So.2d 424, 428. Accordingly, in our review of the grant of the exception of prescription, we must determine whether the trial court’s ruling was legally correct or incorrect, accepting all allegations in the petitions as true. The mover on an exception of prescription bears the burden of proof; however, if on the face of the petition it appears that prescription has run, the burden shifts to the plaintiff to prove an interruption or suspension of the prescriptive period. SS v. State, Dept. of Social Services, 02-0831 (La. 12/4/02), 831 So.2d 926, 931.

The Petition to Enforce Liens does not contain any information regarding dates that Roubion performed work on Mr. Rodney’s house, nor does the petition state when the work was completed. Rather, the petition merely states that defendants are indebted to Roubion for “labor and services and/or materials related to house raising, pile driving, backfilling, plumbing and related services and tasks j£urnished by Roubion” at each property, that Roubion had not been paid for the work, that Roubion has a privilege for payment against the property, and that the defendants are personally liable to Rou-bion for their respective accounts. Attached to the Petition to Enforce Liens was the lien recorded on each property, including Mr. Rodney’s property. The lien states that Roubion “performed certain labor and services and/or furnished materials in the construction, repair, and improvement of a building on or otherwise related to the following described property” located at 3125 Keithway, Harvey, Louisiana. The lien states that an amount of $24,937.50 is owed and an invoice dated November 1, 2012 from Roubion to Crescent, describing the work as “slab elevation” is attached.

Since the petition is not prescribed on its face, Mr. Rodney had the burden of proving that the action is prescribed. In his Exception of Prescription, Mr. Rodney stated: “Exceptor, Roland Rodney avers that the lien placed on his property failed to meet the prerequisites and requirements of the Louisiana Private Works Act, Louisiana Revised Statute 9:4801, et. seq., and in failing to do so, plaintiff Roubion has failed to properly preserve a claim or privilege against Ex-ceptor and his property and thus, this action is prescribed.” Although counsel for Mr. Rodney argued at the hearing that the work was performed on his property in December 2012 and Roubion did not file the lien until over sixty days after the completion of the work, the transcript indicates that no evidence was introduced at the hearing- on the exception to support this argument.

The Petition to Enforce Liens is not prescribed on its face. Our review of the designated record and supplements to the record indicate that no evidence was introduced at the hearing on the exceptions to support Mr. Rodney’s argument that the petition is prescribed. Thus, Mr. Rodney did not carry his burden of proving the exception prescribed. Accordingly, the trial court erred in granting the exception of prescription.

^CONCLUSION

For the foregoing reasons, the March 16, 2016 judgment sustaining defendant, Roland Rodney’s Exceptions of No Cause of Action, No Right of Action, and Prescription and. dismissing the claims of plaintiffs Roubion Construction Co., LLC and Roubion Shoring Co., LLC, is vacated. This matter is remanded to the trial court for further proceedings consistent with this opinion.

JUDGMENT VACATED; REMANDED

      . Other nonaffiliated homeowners also entered into contracts with Crescent to elevate their individual homes.

      . The Exception of Failure to Include Indispensable Parties was taken up and granted. The State of Louisiana, as the administrator of the Hazard Mitigation Grant Program, was added to the suit, but later dismissed by the grant of its motion for summary judgment.

      . Although there may be merit to Mr. Rodney’s argument that the Exception of Improper Cumulation of Actions should have been granted, Mr, Rodney has not appealed, nor filed an answer to this appeal. Accordingly, the denial of this motion is not before us on this appeal. We note that the judgment relative to Mr, Rodney's motions is not binding on the other defendants in this lawsuit.


text:
    Carl E. GABRIEL v. DELTA AIR LINES, INC. & Ace American Insurance Company
    NO. 16-CA-680
    Court of Appeal of Louisiana, Fifth Circuit.
    May 17, 2017
    See. also 106 So.3d 1285.

      PLAINTIFF/APPELLANT, CARL E. GABRIEL, In Proper Person
    COUNSEL FOR DEFENDANT/AP-PELLEE, DELTA AIR LINES, INC. & ACE AMERICAN INSURANCE COMPANY, Leslie E. Hodge, Kelly F. Walsh
    Panel composed of Susan M. Chehardy, Robert M. Murphy, and Stephen J. Windhorst
   MURPHY, J.

11 Claimant, Carl Gabriel, appearing in proper person, has appealed the November 2, 2016 judgment of the Workers’ Compensation Court which determined his average weekly wage and corresponding compensation rate. For the reasons that follow, we affirm the judgment of the Workers’ Compensation Court.

FACTS AND PROCEDURAL HISTORY

On August 25, 2008, claimant began working for defendant, Delta Airlines, Inc., as a “Ready Reserve” employee. On October 19, 2008, claimant was injured in the course and scope of his employment. On November 6, 2009, claimant filed a Disputed Claim for Compensation, asserting that defendant failed to properly pay indemnity benefits and authorized medical benefits. On February 23, 2011, claimant filed a First Amended and Supplemental Disputed Claim for Compensation, adding new assertions and claiming that he is entitled to the maximum amount of compensation benefits. On October 31, 2011, the workers’ compensation court rendered a judgment finding claimant’s “average weekly wage shall be calculated using an hourly rate of $10.50 for a 40 hours work week, and it shall include claimant’s bonus and shared rewards from the employer.” Defendant appealed this judgment, arguing that the workers’ compensation court erred in calculating the average weekly wage because claimant was a part-time employee and it was error to apply the 40-hour presumption in La. R.S. 23:1021(12)(a)(i) to increase the average weekly wage. Gabriel v. Delta Air Lines, 12-428 (La.App. 5 Cir. 01/30/13), 106 So.3d 1285, 1292, writ denied, 13-0917 (La. 05/31/13), 118 So.3d 399. Finding no error in the workers’ compensation court’s application of the 40-hour presumption and calculation of claimant’s average weekly wage, this ruling was affirmed. Id.

On January 2, 2014, claimant filed a Disputed Claim for Compensation alleging, among other things, that his “Workers’ Compensation Rate is incorrect.” Claimant alleged that the compensation payments made to him were incorrect because they failed to include his “shared rewards” and bonus. It was agreed that this issue would be submitted to the workers’ compensation judge on briefs. On September 24, 2014, defendant submitted its brief arguing that its calculation of compensation payments was correct and included claimant’s shared rewards. However since claimant did not receive a bonus, a bonus was not included in the calculation. In support of its position, defendant submitted five exhibits: (1) a document given to employees explaining defendant’s shared rewards program, (2) claimant’s paychecks including check stubs dated September 23, 2008, September 30, 2008, October 15, 2008, and October 81, 2008 indicating the amount of hours worked, gross pay and net pay, (3) print outs from an online check inquiry documenting the payments made to claimant on September 23, 2008, September 30, 2008, October 15, 2008 and November 4, 2008, (4) claimant’s deposition taken May 8, 2014, and (5) a notice concerning employment as a ready reserve employee signed by claimant on July 21, 2008. Claimant moved to strike exhibit two arguing that this evidence had not been presented in the trial of his compensation claim and that it was uncertified and unauthenticated. Following a hearing on claimant’s motion to strike, the workers’ compensation judge granted claimant’s motion. Defendant sought supervisory review from this Court. Gabriel v. Delta Airlines, Inc., 15-76 (La. App. 5 Cir. 3/10/15)(unpublished writ disposition). This Court granted defendant’s writ application holding:

... this Court agrees that the issue of how to calculate Mr. Gabriel’s average weekly wage remains unresolved. Specifically, since the record thus far is silent and both parties disagree, the amount of | ¡/shared rewards’ and ‘bonus’ payments Mr. Gabriel received during his employment must be determined by the Workers’ Compensation Court. Before this determination is made, all parties shall be entitled to produce otherwise admissible evidence in support of their calculation of the average weekly wage. Based upon the record before us, we are unable to determine the basis upon which the compensation judge excluded relator’s exhibit. Accordingly, the writ is granted, the ruling of the Workers’ Compensation Court striking Delta’s exhibit is vacated, and the matter is remanded for proceedings consistent herewith.

Id. In response to this Court’s writ disposition, the workers’ compensation court issued an order setting a hearing on the calculation of claimant’s average weekly wage stating “each party shall advise the court of their calculation of Mr. Gabriel’s average weekly wage and shall produce otherwise admissible evidence in support of their calculation of Mr. Gabriel’s average weekly wage.” On July 31, 2014, a hearing was held on calculation of the average weekly wage. At the hearing, the workers’ compensation judge asked claimant to present his evidence. Claimant, appearing in proper person, stated that he received a bonus in the amount of $1,175.01 and asked if he and defendant could stipulate to an average weekly wage. The court allowed the parties to go off of the record in an attempt to reach a stipulation. The parties were unable to reach a stipulation. Claimant agreed that his base weekly salary was $420.00. Claimant argued that he was paid weekly and that September 30,2008 check in the amount of $777.00 represented his base pay of $420.00 plus his shared rewards. Claimant stated that the October 15, 2008 check in the amount of $819.25 represented his base pay of $420.00 plus his shared rewards. Claimant argued that he received a bonus check in the amount of $1,175.04. Claimant explained that dividing the bonus check by four and adding it to the amounts in September 30 and October 15 checks, claimant arrived at $3,611.00, which divided by four gives an average weekly wage of $902.75.

Defendant agreed that claimant’s base weekly wage was $420.00. Defendant argued that claimant was paid bi-weekly based on the dates claimant |4was paid. Regarding shared rewards, defendant referred to exhibit one, which describes the shared rewards program and explained that the program provides for a maximum of $100 per month per individual in shared rewards if the group’s operational goals are met. Defendant also pointed out that at the trial on claimant’s claim for compensation, claimant testified that if they met a certain performance, they would get “an extra hundred dollars or so.” Defendant submitted exhibit number two, claimant’s paychecks and check stubs for the four weeks prior to the accident, and pointed out to the court how these payments were broken down. Defendant explained that for the check dated October 15, 2008, gross earnings in the amount of $819.25, was for 68.5 hours of work plus shared rewards in the amount of $100. Defendant went on to argue that for the purposes of calculating the average weekly wage including the shared reward, applying La. R.S. 1021.12(d), the shared reward must be divided by the number of weeks claimant worked prior to the accident. Since claimant worked a total of 10.28 weeks prior to the accident, the $100 must be divided by 10.28 which results in $9.73. Defendant concluded that $9.73 should be added to the base wage of $420.00 to reach an average weekly wage of $429.73.

With regard to any bonus received by claimant, defendant argued that the October 31, 2011 judgment stated that bonus should be included in calculation of the average weekly wage but did not state that claimant actually received any bonus. Defendant argued that pursuant to exhibit five, the document signed by claimant explaining that as a ready reserve employee, claimant would not receive any bonuses. Defendant further argued that the check dated November 4, 2008 is not a bonus, rather it is a nontaxable stock option which is not included in the calculation of average weekly wage pursuant to La. R.S. 2310.21.13(f). ^Alternatively, defendant argued that this amount was not earned in the four weeks prior to claimant’s accident and as such should not be included in- the average weekly wage.

.Claimant had- no objections to exhibits one, three, four and five.-Claimant reiterated his objection to exhibit two; the workers’ compensation judge overruled the objection and admitted this exhibit.

Claimant then argued that defendant did not comply with the provision of the ready reserve employee program prohibiting ready reserve employees from receiving additional compensation as evidenced' by the fact that he received a raise from $10.50 to $10.82 and shared rewards benefits. Claimant argued that there is no evidence that the November 4, 2008 check in the amount of $1,175.04 was a stock option. Claimant argued that the bonus in the amount of $1,175.04 was earned in the four weeks 'prior to his injury and should be divided by four and added to his base pay and shared rewards to calculate his average weekly wage.

At the conclusion of the hearing, the workers’ compensation judge took the matter under advisement and in response to claimant’s request, allowed the parties to file post-hearing memoranda. The arguments made at the hearing were repeated in the post-hearing memoranda, On October 28, 2015, the workers’ compensation judge issued reasons for judgment finding that claimant’s average weekly wage was $429.73. Claimant appealed this ruling. This Court dismissed the appeal and remanded the matter to the trial court, finding that there was not a valid appealable judgment. Gabriel v. Delta Air Lines, Inc., 16-210 (La.App. 5 Cir. 10/19/16), 202 So.3d 1184. Following remand, the workers’ compensation judge rendered judgment dated November 2, 2016 stating in pertinent part: “the average Weekly wage of Employee, CARL GABRIEL, is $429.73 with a' corresponding compensation rate of $286.50.” Claimant has appealed that judgment.

IflLAW AND DISCUSSION

As discussed supra, in support of its calculation of claimant’s average weekly wage, defendant submitted exhibit two which contained copies of claimant’s paychecks and'stubs for the four wéeks prior to his 'injury’ indicating the amount' of hours worked and the sum paid. Claimant moved to‘ strike 'exhibit two arguing that this evidence had not been presented in the trial of his compensation claim and that it was uncertified and unauthenticated. Following a hearing on claimant’s motion to strike, the workers’ compensation judgment granted claimant’s motion. Defendant sought supervisory review of this ruling from this Court, which granted defendant’s writ application and vacated the judgment granting the motion to strike. In his first assignment of error, claimant argues that this- Court erred when it vacated the worker’s compensation court’s order striking defendant’s exhibit two.

In Pumphrey v. City of New Orleans, 05-979 (La. 4/4/06), 925 So.2d 1202, the Louisiana Supreme Court reiterated the judicial principle of “law of the case” stating:

With regard to an appellate court, the ‘law of the case’ refers to a policy by which the court will not, on a subsequent appeal,' reconsider prior rulings in the same case. This policy applies only against those who were parties to the case when the former appellate decision was rendered and who thus had their day in court. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both parties, of affording a single opportunity for the argument and decision of the matter at issue.
Nevertheless, the law-of-the-case principle is applied merely as a discretionary guide: Argument is barred where there is merely doubt as to the correctness of the former ruling, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice.

Id. at 1207 (quoting Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105, 107 (La. 1972)).

^Claimant’s arguments on appeal to exclude exhibit two because it was “uncertified, unsworn, and unauthenticated” or that it could be stricken pursuant to the "uncalled witness rule” are the same as those raised in his opposition to defendant’s writ application in this Court. Gabriel v. Delta Airlines, Inc., 15-76 (La. App. 5 Cir. 3/10/15)(unpublished writ disposition). Claimant raised these arguments again in his application for rehearing and in denying rehearing, this Court again rejected these arguments. As noted by this Court in the writ disposition, both the October 31, 2011 workers’ compensation court judgment and this Court’s opinion addressing that judgment are silent as to the specific amount of shared reward or bonus to be used when calculating the average weekly wage. When claimant filed a disputed claim disagreeing with defendant’s determination of the amount of shared reward and bonus owed, the workers’ compensation court had to resolve the dispute. This Court’s holding that “all parties shall be entitled to produce otherwise admissible evidence in support of their calculation of the average weekly wage” was correct and did not result in any injustice. Accordingly, based on law-of-the-case claimant’s argument regarding exhibit two will not be revisited.

In his second assignment of error, claimant argues that the workers’- compensation court erred when it failed to apply the doctrine of res judicata to the issue of the inclusion of a bonus into calculation of his average weekly wage. This argument is based on claimant’s contention that the October 31, 2011 judgment made a finding that claimant had received a bonus from defendant during his employment. A review of the record indicates that neither the workers’ compensation court nor this Court made a finding that claimant actually received a bonus. In fact, in its application for rehearing, defendant specifically asked this Court to clarify and quantify claimant’s average weekly wage to determine what amount, if any, should be included regarding the bonus and shared rewards. This |RCourt refused to grant rehearing on this issue. Thus, there had been no prior determination by any court in this case that claimant had actually received a bonus. Accordingly, the workers’ compensation court did not err in refusing to apply the doctrine of res judicata.

In his third assignment of error, claimant argues that the workers’ compensation court erred in finding that he did not carry his burden of proving that he earned a bonus during his employment with defendant.

In support of his contention that he received a .bonus during his employment, claimant relies on an untitled document which is a printout from an “online check data inquiry.” This document indicates that on November 4, 2008, claimant was issued a check in the amount of $1,175.04. He contends that this represents a bonus earned during the four weeks prior to his injury.

Defendant contends that this was not a bonus, rather, it was a nontaxable stock option and as such is not included in the calculation of average weekly wage. In support of this position, defendant points to the document signed by claimant that explains that as a “ready reserve” employee, claimant was not eligible to receive a bonus. Alternatively, defendant argues that this amount was not earned in the four weeks prior to claimant’s injury.

Appellate review of the judgment issued by a workers’ compensation court is subject to the manifest error or clearly wrong standard of review. Marange v. Custom Metal Fabricators, Inc., 11-2678 (La. 07/02/12), 93 So.3d 1253, 1259. Thus, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one based on the entire record. Id.

Defendant’s exhibit five entitled “Notice Concerning Employment as a Ready Reserve Employee” states that as a ready reserve employee, the “sole ^compensation will be a specific hourly pay rate.” The check stubs submitted with exhibit two clearly show that in addition to being paid an hourly rate, claimant was also paid shared rewards in the amount of $100. Defendant does not dispute that claimant was paid shared rewards. Further, defendant does not dispute that claimant was paid $1,175.04 in addition to payments made for the hours he worked. Thus, exhibit five does not support defendant’s contention that as a ready reserve employee, claimant could not have received a bonus.

Defendant contends that the November 4, 2008 check in the amount of $1,175.04 was a nontaxable stock option. Indeed the untitled document, submitted by both parties, which is a printout from an “online check data inquiry,” indicates that no taxes of any kind were withheld from this check. Taxes were withheld from all of the other checks issued to claimant by defendant. Pursuant to La. R.S. 23:1021(13)(f) any payment which is not taxable to an employee for federal income tax purposes shall not be included in the calculation of wages. There is no evidence that the payment of $1,175.04 was subject to federal income tax. Thus, the workers’ compensation court’s determination that the November 4, 2008 check in the amount of $1,175.04 should not be used in the calculation of claimant’s average weekly wage is reasonable in light of the entire record.

In his fourth assignment of error, claimant argues that the workers’ compensation court erred when it determined that the shared rewards should be calculated using La. R.S. 23:1021(13)(d) rather than La. R.S. 23:1021(13)(a)(i). Defendant contends that the court correctly calculated the shared rewards under La. R.S. 23:1021(13)(d).

La. R.S. 23:1021(13)(a)(i) provides:

“Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
(a) Hourly wages.
| m(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater;

La. R.S. 23:1021(13)(d) provides:

(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.

In Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007-08 (La. 1989), the Louisiana Supreme Court explained that: “[i]n determining the amount of pre-injury wages an employee earned, ‘any money paid the employee which can be regarded as remuneration or reward for his services should be included in fixing his compensation, irrespective of whether or not the payment was in the form of wages.’ ” (citing Malone and Johnson, 14 Louisiana Civil Law Treatise, Workers’ Compensation § 324 at 93 (1980)).

As explained in defendant’s exhibit one, the shared rewards program is designed to encourage its employees to strive to reach certain operational goals. The program provides that eligible employees receive a maximum of $100 per month if certain operational goals are met. In order to be rewarded, all eligible employees must meet these goals. When the goals are met each eligible employee receives the same amount of shared rewards. Thus, the shared rewards are rewards given to the employee by the employer as a reward for his services and are not based on the employee’s hourly rate or hourly wages or how many hours the Inemployee worked. Accordingly, the shared rewards fall under “other wages” pursuant to La. R.S. 23:1201(13)(d).

Claimant’s reliance on Allor v. Belden Corporation, 393 So.2d 1233 (La. 1981) is misplaced. In Allor, claimant’s weekly bonus was calculated based on a production percentage of his base hourly rate. Accordingly in Allor, the bonus was directly derived from claimant’s hourly work and hourly wages and the Allor court included the bonus in calculating claimant’s hourly rate. In the instant case, since claimant’s shared rewards bear no relation to his hours worked or hourly wage, it would be illogical to include the shared rewards in the calculation of claimant’s hourly rate. Rather, the appropriate inclusion of the shared rewards is pursuant to La. R.S. 23:1201(13)(d).

CONCLUSION

For the foregoing reasons, the November 2, 2016 judgment of the workers’ compensation court is affirmed.

AFFIRMED

      . The October 31, 2011 judgment adjudicated several other issues which are not pertinent to the instant appeal.

      . Defendant raised and this Court adjudicated other issues not pertinent to the instant appeal.

      . This exhibit also contained an affidavit by an employee of defendant attesting that she has personal knowledge of the defendant’s payroll practices, including payments of shared rewards, and that the payroll checks and stubs were true and accurate.