author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Lawrence JONES v. DEPARTMENT OF POLICE
    NO. 2016-CA-1154
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 28, 2017
    DONOVAN ANTHONY LIVACCARI, LIVACCARI VILLARRUBIA LEM-MON, LLC, 101 West Robert E. Lee Boulevard, Suite 402, New Orleans, Louisiana 70124, Counsel for Plaintiff/Appellant

      REBECCA H. DIETZ, CITY ATTORNEY OF NEW ORLEANS, ELIZABETH ROBINS, ASSISTANT CITY ATTORNEY, ADAM J. SWENSEK, ASSISTANT CITY ATTORNEY, MATTHEW D. FRASER, ASSISTANT CITY ATTORNEY, 1300 Perdido Street, 5E03, New Orleans, Louisiana 70112, Counsel for Defendant/Appellee
    (Court composed of Chief Judge James F. McKay III, Judge Roland R. Belsome, Judge Regina Bartholomew Woods)
   JAMES F. MCKAY III, CHIEF JUDGE

1, Officer Lawrence Jones, seeks review of the decision of the Civil Service Commission (“CSC”) denying his appeal and upholding the New Orleans Police Department’s disciplinary action under Rule IX § 1, paragraph 1.1 of the Civil Service Commission for the City of New. Orleans, and ordering that the Letter of Reprimand issued by the New. Orleans Police Department (“NOPD”) be amended to remove any reference to a violation of NOPD Policy 1020.5.1 For the reasons set forth below we reverse.

FACTS AND PROCEDURAL BACKGROUND

At the time of the action that is the basis for the complaint, Officer Lawrence Jones was employed by the NOPD as a police officer with permanent status. On February 2, 2015, Officer Lawrence Jones (“Officer Jones”) and Officer Michael Smith (“Officer Smith”), while on patrol in the First District, were dispatched to a ^disturbance at 3340 Canal Street. Upon their arrival at the location, the officers were informed that Ms. Dana Earles (“Ms. Earles”), an intoxicated patron, had engaged in a confrontation with another patron. During the confrontation, Ms. Earles broke the other patron’s sunglasses. The officers determined sufficient probable cause to arrest Ms. Earles for public intoxication and simple criminal damage to property. After the arrest, the officers placed Ms, Earles in the rear of the police vehicle for transport to New Orleans Central Lockup for booking. While in the rear of the police vehicle, Ms. Earles made numerous threatening statements to the arresting police officers. She also made allegations that she had been raped on an unknown date by an unknown police officer. In compliance with NOPD Procedure 1020.5.1, the officers notified their supervisor, Sergeant Henry Burke (“Sergeant Burke”), that they had an arrest that required his signature on the arrest affidavit. Sergeant Burke was informed that Ms. Earles had made allegations that she had been raped on an unknown date by an unknown police office.

In the instant matter, an initial investigation allegedly began with Officer Jones receiving a DI-1 FORM (Initiation of a Formal Disciplinary Investigation), informing Office Jones of the formal and written complaints against him. This resulted in the NOPD Public Integrity Bureau (“PIB”) launching an investigation against Officer Jones for allegedly violating Rule 4, Performance of Duty, Paragraph 4, Neglect of Duty to wit, NOPD Procedure 1020,5.1, Initial Employee | n(non-supervisory) Responsibilities. This pre-disciplinary investigation was conducted by Sergeant Kimberly Hunt (“Sergeant Hunt”). On October 8, 2015, a disciplinary hearing was conducted by Commander Otha Sandifer (“Commander Sandifer”). After reviewing the administrative investigative report, Commander Sandifer determined that Officer Jones was in violation of the NOPD Operations Manual, specifically, Rule 4: Performance of Duty; Paragraph 4: Neglect of Duty, to wit NOPD Procedure 1020.5.1, (( Initial Employee (Non-Supervisory) Responsibilities)) and Rule IX, § 1., paragraph 1.1 of the Rules of Civil Service Commission for the City of New Orleans. Commander Sandifer recommended that a Letter of Reprimand be issued to Officer Jones as a penalty for the violations. This disposition and penalty was sustained and signed by the Superintendent of Police Michael Harrison, thereby finalizing the disciplinary action. On November 30, 2015, a disciplinary letter reflecting the same was issued to Officer Jones. Officer Jones timely filed for an administrative appeal from this disciplinary action.

On March 15, 2016, an appeal hearing was held before Hearing Officer Victor Papai, who after reviewing Officer Jones’s appeal request, wrote a report recommending that Officer Jones’s appeal be granted and the discipline be reversed because Officer Jones did what he was required to do under the NOPD Rules. Pursuant to the recommendation, Officer Jones was essentially exonerated as the NOPD failed to meet their burden of proof to establish legal cause for disciplinary action.

| ¿Thereafter, on August 18, 2016, the CSC did not follow the recommendation of the hearing officer and issued a final decision denying Officer Jones’s appeal. In that decision the CSC found that the NOPD (Appointing Authority) had failed to meet its burden of proof with regard to the alleged violation of NOPD Procedure 1020,5.1. Despite this finding the CSC ordered the NOPD to remove all references to Rule 4, Paragraph 4, to wit, NOPD Procedure 1020 5.1, and reissue a letter of reprimand to Officer Jones, pursuant to CSC Rule IX § paragraph 1.1, finding that “[Officer Jones] failed to perform a function it was his duty to perform. Namely, reporting any sexual assault directly to the sex crimes/sexual assault unit.” The CSC found that: (1) that the violation had an adverse impact on the efficient operation of the NOPD, and (2) that the discipline (Letter of Reprimand) was commensurate with the offense, which is the basis of this appeal.

ASSIGNMENTS OF ERROR

Based upon the CSC’s ruling, the appellant raises three assignments of error: The appellant asserts that the CSC erred by ordering the NOPD to take disciplinary action against Officer Jones for a new alleged violation after finding the NOPD failed to meet its burden of proof regarding the alleged violation described in the disciplinary letter issued to Officer Jones; by ordering the NOPD to take disciplinary action against Officer Jones without proper notice and due process; and, by ordering the NOPD to take disciplinary action against Officer Jones which is not authorized by Civil Service Rules.

^STANDARD OF REVIEW

In Honore’ v. Dept. of Public Works, 14-0986, (La. App. 4 Cir. 10/29/15), 178 So.3d 1120, this Court summarized the standard of review applicable to decisions of the CSC as follows:

The Louisiana Constitution Article 10, § 8 provides in pertinent part, “No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing.” See Walters v. Department of Police of City of New Orleans, 454 So.2d 106 (La. 1984). A civil service employee subjected to disciplinary action by his or her appointing authority has the right of appeal to the Civil Service Commission. La. Const. Art. 10, §§ 8, 12; See, e.g., Adams v. Dept. of Police, 08-0468, p. 2 (La. App. 4 Cir. 2/12/09), 7 So.3d 763, 765. On appeal to the Commission, the Appointing Authority must prove by a preponderance of the evidence good or lawful cause for taking disciplinary action. See, e.g., Cure v. Dept. of Police, 07-0166, p. 2 (La. App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094. Good or lawful cause for disciplinary action exists if the employee’s conduct impairs the efficient operation of the public service in which the employee is engaged. Bell v. Dept. of Police, 13-1529, p. 5 (La. App. 4 Cir. 5/21/14), 141 So.3d 871, 874 (quoting Pope v. New Orleans Police Dep’t., 04-1888, p. 6 (La. App. 4 Cir. 4/20/05), 903 So.2d 1, 5). Thus, the Appointing Authority has the burden to prove, by a preponderance of evidence, that the act or infraction occurred and that such act or infraction bore a real and substantial relationship to the operation of the public service. Cure, 07-0166, p. 2, 964 So.2d at 1094.
The Commission must then determine independently from the facts presented whether the legal cause for disciplinary action has been established and, if so, whether that disciplinary action is commensurate with the employee’s detrimental conduct. See Bell, 13-1529, p. 5, 141 So.3d at 874-75. The Commission has the duty and authority to affirm, reverse, or modify the action taken by the Appointing Authority. Clark v. Dept. of Police, 12-1274, p. 4 (La. App. 4 Cir. 2/20/13), 155 So.3d 531, 534.
The final decision of the Commission is subject to review on any question of law or fact upon appeal to the court of appeal. La. Const. Art. 10, § 12; Cure, 07-0166, p. 2, 964 So.2d at 1094. The appellate court reviews the Commission’s findings of fact under a clearly wrong or manifest error standard of review. Cure, 07-0166, p. 2, 964 So.2d at 1094. In reviewing the Commission’s determinations of whether legal cause existed and whether the discipline is commensurate with the infraction, the appellate court should not modify or reverse the Commission’s decision unless it is arbitrary, capricious, or characterized by an abuse of discretion. Clark, 12-1274, p. 5, 155 So.3d at 535; Ellis v. Dept. of Police, 10-0048, p. 6 (La. App. 4 Cir. 5/12/10), 38 So.3d 1148, 1152; Bannister v. Dept. of Streets, 95-0404, p. 8 (La. 1/16/96), 666 So.2d 641, 647. A decision is arbitrary and capricious if there is no rational basis for the action taken. Clark, 12-1274, p. 5, 155 So.3d at 535 (citing Cure, 07-0166, p. 2, 964 So.2d at 1095). Applying this standard, the appellate court must review two parts of the Commission’s decision: (1) whether the Appointing Authority established good, legal cause for taking disciplinary action; and, if so, (2) whether the punishment imposed is commensurate with the offense. Hills v. New Orleans City Council, 98-1101, p. 6 (La. App. 4 Cir. 12/9/98), 725 So.2d 55, 58.

Honore’, 14-0986, pp. 8-9, 178 So.3d at 1126-1127.

LAW AND ANALYSIS

In the instant case, Officer Jones asserts that the CSC was without the authority to order the NOPD to rescind the NOPD’s letter of reprimand to Officer Jones and instead ordered that a new letter reprimand be issued to Officer Jones under a CSC rule to wit, CSC Rule IX § 1.1. Officer Jones argues that this new reprimand was arbitrary and capricious and deprived him of his constitutional due process as he was never provided with any written notice to facilitate his defense for this new disciplinary action.

The specific NOPD rule that Officer Jones’ November 30, 2015 disciplinary letter was based upon is NOPD Rule 4, Performance of Duty, Paragraph 4, Neglect of duty, to wit, NOPD Policy 1020.5.1. This rule required that Officer Jones report the allegation of misconduct by a fellow NOPD officer to his supervisor, Sergeant Burke or directly to the Public Integrity Bureau for further review and ^investigation. On its face, this clearly removes the duty of a non-supervisory NOPD officer the responsibility of reporting the alleged misconduct to anyone but his or her supervisor. It is then duty of the supervisor to notify the PIB. Once Officer Jones reported the allegations against a fellow police officer to Sergeant Burke, the responsibility for further investigation of the alleged misconduct shifted to Sergeant Burke. Officer Jones successfully met the requirement to report pursuant to NOPD policy 1020. 5.1. We further note that NOPD Policy 1020.5.2 (f) states that a supervisor must “notify PIB immediately, before taking any other action, if the nature of the misconduct involves criminal activity.” Inexplicably, the NOPD asserts that there is nothing in the rule that precluded Office Jones from reporting the allegation to the sex crimes unit.

During an exchange between Officer Jones’ attorney and the PIB investigator Sergeant Kimberly Hunt, it was proven that Officer Jones was in compliance with NOPD Policy, specifically Policy Rule 1020.5.1.

Question: So your investigation found that the only person [Officer Jones] reported [the allegation of Officer Misconduct] to was Sergeant Burke when they met?

Answer: That’s correct.

The NOPD basically argued that had Officer Jones reported the alleged incident to the PIB, a specialized unit from the sexual assault unit that specializes in such investigations, the sexual assault unit could have become involved and made a determination if there was in fact a sexual assault by an NOPD officer. The CSC determined that Officer’s Jones’ failure to notify the PIB/sex crimes unit |8of the allegation of an alleged sex crime impacted the effectiveness and efficiency of this specialized unit. The CSC concluded that the fact that Officer Jones notified his supervisor did not excuse him from performing his duty.

Astonishingly, in their decision, the CSC found that the NOPD failed to meet its burden of proof sufficient to establish that Officer Jones had violated his duty as a police officer pursuant to Rule 4, Performance of Duty, Paragraph 4, Neglect of Duty to wit, NOPD Policy 1020.5.1., (Initial Employee (non-supervisory) Responsibilities), by ordering that any reference to it be removed from the letter of reprimand, yet, simultaneously ordered a issuance of a new written reprimand with a more appropriate correctional action pursuant to CSC Rule IX § 1. paragraph 1.1.

The CSC in its conclusion said:

As a result of the above findings of fact and law, the Commission hereby DENIES the Appellant’s appeal. However, NOPD shall rescind the written reprimand in evidence as Hearing Examiner Exhibit 1 and reissue a reprimand consistent with this Order and without any reference to an allegation that the Appellant failed to adhere to RULE 4, Paragraph 4 of the NOPD’s Operations Manual.

-.At this point, after concluding that the NOPD, failed to meet their burden of proof against Office Jones pursuant to NOPD Policy 1020.5.1, Officer Jones essentially won his appeal against the NOPD disciplinary action. By finding that the NOPD had failed in its burden of proof they ostensibly found that the NOPD could not establish legal cause for the disciplinary action. This finding warranted a simple granting of Office Jones’ appeal. Nevertheless, the CSC proceeded to enforce another disciplinary action against Officer Jones’ via Civil Servicé Rule IX, § 1, paragraph 1.1.

19These two CSC decisions are fundamentally adverse. First the CSC found that the NOPD failed'to meet its burden of proof pursuant to NOPD Policy 1020.5.1, which should have ended the appeal. Then they misinterpret the rulé as written. Nowhere, in NOPD Policy 1020.5.1 does it require or place onus upon Officer Jones to go any further with his reporting the allegation of rape by an unknown police officer to his supervisor, Sergeant Burke; which he did. Commander Sandifer reviewed the rule and agreed that it did not require that PIB crimes unit to be notified but that Officer Jones should have notified PIB and/or followed up on the investigation. Commander Sandifer’s opinion or interpretation of the rule is of no moment and in fact just an opinion without legal basis.

In Pope v. New Orleans Police Department, 2004-1888, pp. 5-6, (La. App. 4 Cir. 4/20/05), 903 So.2d 1, 4, this Court found that:

The Commission has the authority to “hear and decide” disciplinary cases, which include the authority to modify (reduce) as well as reverse or affirm a penalty. La. Const. art X § 12; Brani-ghan v. Department of Police, 362 So.2d 1221 (La. App. 4 Cir. 1978). However, the authority to reduce a penalty can only be exercised if there is sufficient cause for imposing the greater penalty. Branighan, 362 So.2d at 1222. Thus, in the instant case unless the Commission determined that there was insufficient cause for the appointing authority to impose the discipline, the penalty must stand.

Pope, 2004-1888, at pp.5-6, 903 So.2d at 4

The CSC found that pursuant to CSC Rule IX, § 1.1, the NOPD did prove that Officer Jones’ failure to report the alleged sexual assault to the PIB was a failure to perform a function that was his duty to perform and consequently had an adverse impact on the efficient operation of the appointing authority. Clearly, based on Pope, the CSC’s decision to order the NOPD to reissue a hew letter of discipline to Office Jones with CSC Rule IX, § 1, paragraph 1.1,, as the justification to enforce some sort of disciplinary action against Officer Jones, was a usurpation Imof the authority of the Appointing Authority (NOPD) to discipline its own members.

The purpose of the initial disciplinary letter is “to inform the employee of the charges against him in detail, and restrict the commission hearing those charges”. While we do not have in evidence the initial DI-I letter we do have a copy of the transcript of the appeal hearing. At' the hearing in this matter, it was proven that Officer Jones' was in full compliance with the regulations cited’in the NOPD’s disciplinary' letter. At both the appeal hearing and in the CSC decision, Officer Jones was found to bé compliant. This is demonstrated by the fact that .the hearing officer, Victor Papai, and the CSC both found that the NOPD failed to meet their burden of proof with regard to Rule 4, Performance of Duty, Paragraph 4, Neglect of Duty to wit, NOPD Policy 1020.5.1., ((Initial Employee (non-supervisory) Responsibilities.

The CSC relied on Commander Sandi-fer’s opinion and his interpretation of Rule 1020 .5.1., instead of the recommendation of Hearing Officer Victor Papai, and the actual rule as written. There is no rational basis for CSC’s decision to order a new letter of reprimand removing any reference that Officer Jones failed to adhere to Rule 4, Paragraph 4 of the NOPD’s Operational Manual. The CSC decision and order leaves Officer Jones without an explanation for his alleged dereliction or legal cause for the discipline. This was a clear abuse of discretion and exceeded the CSC’s authority.

CONCLUSION

Based on the above and foregoing, we find the CSC was arbitrary and capricious in denying Officer Jones’ appeal and instructing that a new letter of reprimand be issued. Accordingly, we reverse the decision of the CSC and order |nthat all letters of reprimand issued in case be removed from Officer Jones’ record.

REVERSED

      . Civil Service Rule IX§ 1, paragraphl.l states in pertinent part that, ”[w]hen an employee is in the classified service.... has omitted to perform any act it was his/her duty to perform, ... the authority shall take action warranted by the circumstances to maintain the standards of effective service,”

      . NOPD Policy 1020.5,1., states in pertinent part that: "[a]ny Department employee who observes or becomes aware of any act of misconduct by another employee must report the incident to a supervisor or directly to PIB for review and investigation," ...”

      .The DI-I FORM is not in the record before us. Therefore, any issues on appeal concerning notification will not be addressed in this opinion.


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    Christopher GILLEY, Plaintiff-Appellant v. GILLEY ENTERPRISES, INC. and Liberty Mutual Insurance Company, Defendants-Appellees
    No. 51,328-WCA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 2, 2017.
    Rehearing Denied June 15, 2017

      CHRISTOPHER GILLEY, In Proper Person
    THOMAS, SOILEAU, JACKSON, BAKER & COLE, L.L.P., By: Patrick F. Cole, Kim P. Thomas, Counsel for Appel-lees
    Before LOLLEY, GARRETT, and STONE, JJ.
   GARRETT, J.

hThe plaintiff, Christopher Gilley, appeals from a decision by the workers’ compensation judge (“WCJ”) denying his motion for new trial, which objected to the grant of summary judgment in favor of the defendant, Gilley Enterprises, Inc. (“Gilley Enterprises”), and its insurer, Liberty Mutual Insurance Company (“Liberty Mutual”). For the following reasons, we affirm.

FACTS

Gilley was employed with Gilley Enterprises, a business which operates McDonald’s restaurants and is ovimed by his uncle. On July 22, 2012, Gilley was installing a'camera system in a restaurant that was being rebuilt in El Dorado, Arkansas. He alleged that he came into contact with a live electrical wire hanging from the ceiling. The wire was to be used for a ceiling light. Gilley claimed the wire touched his neck and back, sending an electrical shock through his body. He was standing on a safe at the time, and stated that he stepped backward off the safe. He sought medical attention, complaining of pain in his neck, back, and ankle. He performed his regular job duties through September or October, 2013. Thereafter, he worked irregularly, doing consulting work for the company. Gilley was paid by Gilley Enterprises through April 30, 2014.

On September 10, 2014, Gilley filed a disputed claim for compensation, asserting that he was injured while working and was entitled to temporary total disability (“TTD”) benefits or, in the alternative, to supplemental earnings benefits (“SEBs”) from May 1, 2014, to present, along with penalties and attorney fees.

1 aGilley Enterprises, represented by Liberty Mutual, answered and asserted that if Gilley was injured, he had recovered, and any disability was the result of degenerative processes. The company claimed that Gilley was capable of working.

On December 3, 2014, Gilley’s attorney withdrew. On January 5, 2015, Gilley, representing himself, filed an amended claim asking for medical benefits, as well as indemnity benefits. Gilley Enterprises filed an amended answer asserting the affirmative defense of fraud, claiming that Gilley was not injured and that he gave false testimony to obtain benefits.

On March 6, 2015, Gilley Enterprises filed a motion for summary judgment noting that Gilley alleged that he was injured by contact with a live electrical wire. However, the company provided proof that there was no electricity supplying power to the wire at the time of the alleged accident. It submitted the affidavit of Jerry Edwards, the electrician who supervised the electrical work at the restaurant. He was aware that Gilley claimed to have been injured by contact with a live electrical wire; however, there was no electricity connected to the building until July 31, 2012. According to Edwards, there was a temporary power source, but it was a closed circuit power supply that was completely isolated from the building’s electrical system. Edwards concluded that it was impossible for Gilley to have been injured as he claimed. The company also provided an affidavit from Steve H. Morgan, engineering associate and distribution lead for the southwest region at Entergy, the electrical utility company serving the area. Morgan! ¾ stated that the electric power had been removed from the site and was reconnected on July 31, 2012.

Gilley Enterprises also submitted proof that Gilley did not sustain any injury. Medical records showed that Gilley saw Dr. Ronald Woods at Glenwood Family Practice on July 24, 2012, complaining of neck, ear, and low back pain. He said he had been shocked by an electrical wire the day before. Dr. Woods found no traumatic injuries. An MRI of Gilley’s cervical spine was normal. An MRI of his lumbar spine showed only degenerative disease with no acute injury. Records from Bienville Medical Center on August 7, 2012, found that there was no injury, swelling, or burn marks on Gilley. In October 2014, Dr. Gordon Mead was unable to substantiate any of Gilley’s complaints.

At the hearing on the motion held on May 11, 2015, Gilley did not appear. The WCJ determined from the record that on March 25, 2015, Gilley was notified to appear for the hearing. After hearing arguments presented by the employer’s counsel and reviewing the evidence submitted in support of the motion, the WCJ granted the summary judgment in open court. On May 13, 2015, the WCJ signed a judgment in favor of Gilley Enterprises and Liberty Mutual, dismissing Gilley’s claims with prejudice.

On May 22, 2015, Gilley delivered a two-page typewritten letter to the WCJ asking for a new hearing. The long, rambling letter included an apology for being “late and absent” from the hearing on the motion for summary judgment due to health problems. Gilley disputed the claim that there was no electricity connected to the wiring in the building at the time 0⅛4 his alleged injury. The WCJ construed the letter as a motion for new trial and set the motion for a hearing.

Gilley Enterprises filed a motion to dismiss the motion for new trial as untimely. A hearing was held in June 2015, and Gilley appeared, unrepresented by counsel. He stated that he had not been able to find a lawyer to take his ease. The WCJ- dismissed the motion for new trial as untimely, noting that, according to La. C.C.P. art. 1974, the delay for applying for a motion for new trial is seven days, exclusive of legal holidays, and begins to run the day after the mailing of notice of judgment. The WCJ erroneously reasoned that Saturdays and Sundays are not legal holidays. Gilley appealed; this court reversed, finding that the motion for new trial was timely, and remanded the matter for consideration of the merits. See Gilley v. Gilley Enters., Inc., 50,562 (La.App. 2 Cir. 4/13/16), 195 So.3d 20.

A hearing on remand was scheduled for May 16, 2016. Gilley appeared and stated that he wanted a lawyer to represent him and asked for time to find one. The WCJ granted his request.

lBOn July 25, 2016, the hearing was held on the motion for new trial. Gilley appeared, unrepresented by counsel, and stated that he decided it was best that he represent himself. He argued that there was temporary power to the building, but claimed that Ernest Edwards, the electrician who actually worked on the job, would not give him an affidavit because he was afraid he would get into trouble. Gilley attacked the credibility of Jerry Edwards, the electrician who gave an affidavit in favor of Gilley Enterprises, claiming he was “on probation for not meeting—the right credentials at his work.” He offered no proof of this allegation. Gilley stated he had bills from Entergy for approximately $100 for each month that temporary power was used at the job site.

Gilley presented an affidavit from Joe Poland, someone he claimed was familiar with the McDonald’s work site. Poland said that he saw exposed electrical wires in the restaurant. The WCJ read a portion of the affidavit into the record which stated, “There were extension cords, strips and wired [sic] into lights in the ceiling of McDonalds with no type of tape or wire-net.” The WCJ observed that Poland “doesn’t say that he was a witness to the fact that there was electricity there.”

Gilley urged that he had extensive proof that he had a serious injury. He claimed that, for two years after the alleged injury, he was not treated properly because he did not know that the electric shock caused his symptoms. He stated that his dentist told him he had nerve damage from the alleged injury. Gilley claimed he had a letter from a doctor he had seen at Johns Hopkins Hospital (“Johns Hopkins”) who dealt with electrical shock injuries. Gilley maintained that another doctor at Johns Hopkins did testing and determined that he had “sear tissue from the injury.” Gilley asserted^ that he had seen a neurologist who told him he had “neurological and nerve damage” and diagnosed him with post-traumatic stress disorder. He stated that he had undergone a functional capacity examination and a mental evaluation.

Gilley Enterprises argued that the medical reports, electric bills, affidavit, and other information supplied by Gilley were all generated well before the hearing on the motion for summary judgment in May 2015. The company urged that everything being put forth by Gilley in support of his motion for new trial was known to all the parties for several years.

The WCJ questioned Gilley about Poland’s affidavit. Gilley stated that he had known Poland for a long time and had no reasonable explanation as to why he could not have offered the affidavit at the hearing on the motion for summary judgment.

The WCJ determined that Poland’s affidavit did not refute the affidavits of Edwards and Morgan submitted by Gilley Enterprises. The WCJ found that the affidavits previously submitted by Gilley Enterprises supported the granting of summary judgment, and particularly noted that Morgan’s affidavit stated that electric power was not restored to the restaurant until July 31, 2012, several days after Gil-ley alleged he was injured.

The WCJ determined that the evidence Gilley attempted to rely on was discoverable prior to the hearing date for the motion for summary judgment. The WCJ found that the prior grant of summary judgment, in favor of Gilley Enterprises, was proper. On August 2, 2016, the WCJ signed a judgment denying the motion for new trial with prejudice.

17Gilley appeals again and is representing himself. Due to his lack of finances, Gilley was granted a waiver of payment of advance costs by the WCJ. He filed a brief which listed several assignments of error. Essentially, Gilley contends that he was denied due process when the WCJ held a hearing on the motion for summary judgment when he was not present or represented by counsel; that the WCJ erred in granting summary judgment in favor of Gilley Enterprises, denying his claim for indemnity and medical benefits; and that the WCJ erred in denying his claim for a new trial. Gilley did not include any argument on those issues and simply stated that he requested that the decision of the WCJ be reversed and a new trial be granted to “allow constitutional rights for his due process to plea [sic] his case.”

OBJECTIONS TO GILLEY’S BRIEF

Gilley Enterprises raises several objections to Gilley’s brief, claiming it does not comply with URCA 2-12.4. The company urges that Gilley’s |8brief failed to reference specific page numbers in the brief. Further, because Gilley failed to brief any of his listed assignments of error, the assignments have been abandoned and should not be considered on appeal.

Even though it is clear that Gilley’s brief does not comply with the requirements of URCA Rule 2-12.4, when a workers’ compensation claimant is proceeding without counsel, courts will consider the brief, attempt to divine the substance of the arguments, and treat them as properly raised, despite the improper form of the appellate brief. See Cheatham v. Luberski, Inc., 43,603 (La.App. 2 Cir. 9/17/08), 996 So.2d 373; Sheridan v. Pride & Hope Ministry Family Support Servs., 2013-1666 (La.App. 1 Cir. 5/2/14), 147 So.3d 717; Franklin v. Slidell Police Dep’t, 2012-0539 (La.App. 1 Cir. 12/31/12), 112 So.3d 257, writ denied, 2013-0471 (La. 4/5/13), 110 So.3d 592; Richardson v. North Oaks Hosp., 2011-1258 (La.App. 1 Cir. 2/13/12), 91 So.3d 361; Hunter v. Rapides Par. Sch. Bd., 2014-490 (La.App. 3 Cir. 11/5/14), 150 So.3d 638; Carsice v. Empire Janitorial, 2008-0741 (La.App. 4 Cir. 12/17/08), 2 So.3d 553, writ denied, 2009-0097 (La. 3/13/09), 5 So.3d 123; Machado v. Baker Concrete Const., 13-273 (La.App. 5 Cir. 10/30/13), 128 So.3d 477. Therefore, we decline to consider Gilley’s arguments to be abandoned.

DUE PROCESS CLAIMS

IflGilley essentially urges that he was denied due process when the WCJ held a hearing on the motion for summary judgment when he was not present' or represented by counsel. These arguments are without merit.

Legal Principles

Under La. C.C.P. art. 966, dealing with motions for summary judgment, any judgment rendered in accordance therewith must be based on proof by the mover that he is entitled to judgment pursuant to substantive law. However, courts have consistently found that the mover must also show that he has secured the judgment in accordance with the procedural law in order to have the summary judgment upheld on appeal. Macaluso v. Macaluso, 1999-0935 (La.App. 1 Cir. 5/12/00), 762 So.2d 180; Hornage v. Cleco Power, L.L.C., 2004-1492 (La.App. 3 Cir. 4/6/05), 899 So.2d 153.

At .the time Gilley Enterprises filed its motion for summary judgment, La. C.C.P. art. 966 provided, in pertinent part:

B. (1) The motion for summary judgment, memorandum in support thereof, afi'd supporting affidavits shall be served within the timelimits provided in District Court Rule 9,9, For good cause, the court shall give the adverse party additional. time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any 'memorandum in support. thereof shall be served pursuant tojin Article 1313 within the time limits provided in District Court Rule 9.9.
Also at that time, La. Dist. Ct. R. 9.9 specified, in pertinent part:
(b) When a party files an exception or motion, that party shall concurrently furnish the trial judge and serve on all other parties a supporting memorandum that cites both the relevant facts and applicable law. The memorandum shall be served on all other parties so that it is received by the other parties at least fifteen calendar- days before the hearing, unless the court sets a shorter time.
(c) A party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing. The opposition memorandum shall be served on all other parties so that it is received by the other parties at least eight calendar days before the hearing, unless the court sets a shorter time.

The requirement of La. C.C.P. art. 966 that the motion for summary judgment be served a specified length of time before the hearing is designed to give fair notice of the evidentiary and legal bases for the motion. The adverse party then has time to respond with evidentiary documentation of his own, either in the form of affidavits or discovery devices and to be prepared to meet the legal argument of the moving party. See Anderson v. Allstate Ins. Co., 642 So.2d 208 (La. App. 1 Cir. 1994), writ denied, 1994-2400 (La. 11/29/94), 646 So.2d 404; Stewart v. Carter, 33,203 (La.App. 2 Cir. 5/10/00), 759 So.2d 297; Jackson v. General Motors Truck Plant, 36,479 (La. App. 2 Cir. 10/23/02), 830 So.2d 426.

Procedural due process requires an opportunity to be heard, in addition to notice of the pendency of an action, and in conjunction therewith, Inadequate notice of the hearing is fundamental. Lassere v. State, Dep’t of Health & Hosps., Office of Pub. Health, 2000-0306 (La.App. 1 Cir. 3/28/01), 808 So.2d 513; Macaluso v. Macaluso, supra. It is a basic principle of our legal system that a final judgment cannot be rendered against a party who has not been provided with proper notice. Macaluso v. Macaluso, supra.

The Louisiana workers’ compensation statutes dictate that each party to an OWC proceeding shall have the right to be present at any hearing or to appear through an attorney. La. R.S. 23:1317; Davis v. Dunn & Bush Const., 2001-2472 (La.App. 1 Cir. 8/20/03), 859 So.2d 155.

Discussion

Gilley has failed to demonstrate that he was denied due process. The motion for summary judgment was filed March 6, 2015. The record shows that Gilley was properly served and notified of the hearing date, as required by La. C.C.P. art. 966. The original hearing date was upset and the motion was reset for May 11, 2015. Gilley was properly notified of the new hearing date. Gilley failed to appear when the matter was called. Before proceeding with the hearing, the WCJ checked the record and determined that Gilley had received proper notice. The letter later sent by Gilley to the WCJ acknowledges that he was fully aware of the May 11, 2015 court date.

At the original hearing on the motion for new trial, Gilley’s failure to appear at the hearing on the motion for summary judgment was discussed. The WCJ again noted for the record that Gilley had official notice of the hearing on,, the motion for summary judgment. The WCJ also noted that the dispute resolution officer with the Office of Workers’ Compensation had spoken to Gilley the day before the hearing to remind him to be present. 112Gilley claimed he called the OWC on the morning of the hearing and informed someone that he was “running late.” He contended that, by the time he arrived, his case had already been called.

Gilley’s assertions were self-serving and not corroborated by any personnel at the OWC.'There is no showing that Gilley asked for a continuance of the hearing. Further, his letter, sent to the court after the grant of summary judgment and which was construed as a motion for new trial, did not say that he asked for a delay or continuance or that he was told that the matter would be taken up later that day on the court’s docket. There is no showing that, in connection with that hearing, Gilley made any request for additional time to seek counsel. Here, the litigant simply failed to appear for a hearing, after receiving proper notice, and failed to offer a credible excuse for his failure. Further, there is no showing that Gilley’s right to be represented by counsel was infringed in any way. When the motion for new trial came before the WCJ following the remand order by this court, the WCJ granted Gilley additional time to secure counsel. He did not do so and elected to proceed without counsel. Under all these circumstances, Gilley’s contention that his due process rights were violated is without merit.

MOTION FOR SUMMARY JUDGMENT

Gilley essentially argues that the WCJ erred in granting the motion for summary judgment and in failing to award him wages and medical benefits. These arguments are without merit.

11sLegal Principles

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Gauthier v. Dollar Tree Stores, Inc., 50,936 (La.App. 2 Cir. 10/21/16), 208 So.3d 503, writ denied, 2016-2047 (La. 1/9/17). A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880; Sonnier v. Gordon, 50,513 (La.App. 2 Cir. 4/13/16), 194 So.3d 47.

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

The moving party bears the burden of proof. However, if the movant will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, the movant is not required to negate all essential elements of the adverse party’s claim, action, or defense. He need only point out an absence of factual support for one or more essential elements of the adverse party’s claim, action or defense. If the adverse party then fails to produce factual support sufficient to establish that he will beju able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is appropriate. La. C.C.P. art. 966.

An adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or other appropriate summary judgment evidence, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967; Samaha v. Rau, supra.

This provision initially places the burden of producing evidence at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Samaha v. Rau, supra. At that point, the party who bears the burden of persuasion at trial must come forth with evidence which demonstrates he or she will be able to meet the burden at trial. Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Samaha v. Rau, supra; Sonnier v. Gordon, supra.

Discussion

Gilley Enterprises showed that there was no genuine issue of material fact and the company was entitled to judgment as a matter of law. Gilley claimed that he was injured through contact with a live electrical wire. The company provided the affidavits of Edwards and Morgan that the electrical supply to the building was removed completely and not restored until July 31, 2012. The alleged accident occurred on July 22, 2012, several days before electrical power was connected to the building. In the affidavit given by Edwards, he stated that the workers’ tools were powered by a closed] ^circuit power supply that was not connected to the electrical wiring in the building. Gilley Enterprises also submitted medical records showing that Gilley was not injured.

Gilley did not file any opposition to the motion for summary judgment. Although he argued that Edwards was not credible, he offered nothing to show that the affidavit testimony should not be believed. Gilley failed to demonstrate that there was a genuine issue of material fact as to whether the wire he claimed caused his alleged injury was electrified. Further, he offered no proof that he sustained an injury. Under these circumstances, Gilley has not shown that he would be able to satisfy his evidentiary burden of proof. Like the WCJ, we find that granting summary judgment in favor of Gilley Enterprises was proper.

MOTION FOR NEW TRIAL

Gilley essentially asserts that the WCJ erred in denying his claim for a new trial. This argument is also without merit.

Legal Principles

Generally, new trials are granted in the interest of justice and are largely left to the discretion of the trial judge. Trial courts are vested with the power to grant new trials on either discretionary or peremptory grounds. Smith v. Alliance Compressors, 2005-855 (La.App. 3 Cir. 2/1/06), 922 So.2d 674.

11fiRegarding motions for new trial, La. C.C.P. art. 1971 states:

A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.
La. C.C.P. art. 1972, dealing with peremptory grounds for a new trial, provides in part:
A new trial shall be granted, upon contradictory motion of any party, in-the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.

To justify a new trial under La. C.C.P. art. 1972, the newly discovered evidence must not only relate to the cause of the case, it must also be important enough to potentially affect the outcome. Washington v. Landry’s Seafood House New Orleans, Inc., 2014-0128 (La.App. 4 Cir. 11/19/14), 154 So.3d 677. This article requires a party" seeking its benefit to demonstrate that it has done all that is reasonable to lead to timely discovery of the evidence. McGhee v. Wallace Drennan, Inc., 2004-0950 (La.App. 4 Cir. 4/20/05), 904 So.2d 3.

In order to meet his or her burden of proof on a motion for hew trial on the basis of newly discovered evidence, the moving party must prove: ' (1) that the evidence was discovered after the trial; (2) that the new evidence is not cumulative; (3)that the new evidence would tend to change the result of the case; and (4) that the new evidence could not have been discovered with due diligence before the trial was completed. State in Interest of G.M.A., 2016-405 (La.App. 3 Cir. 9/28/16), 201 So.3d 1014, writ denied, 2016-1945 (La. 11/18/16), 210 So.3d 290. See also Winford Co., Inc. v. Webster Gravel & Asphalt, Inc., 571 So.2d 802 (La. App. 2 Cir. 1990); Furlough v. Union Pac. R.R. Co., 33,658 (La.App. 2 Cir. 8/31/00), 766 So.2d 751, writ denied, 2000-2929 (La. 1/12/01), 781 So.2d 556.

La. C.C.P. art. 1973 provides for discretionary grounds for new trial and states that' a new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law. This has been interpreted to mean that, when the trial judge is convinced by his examination of the facts that- the judgment would result in a miscarriage of justice, a new trial should be ordered. Smith v. Alliance Compressors, supra.

Appellate review of the grant or denial of a motion for new trial under La. C.C.P. arts. 1972 and 1973. is governed by the abuse of discretion standard, which prohibits this court from reversing the actions of a trial court unless an abuse of discretion can be demonstrated. Smith v. Alliance Compressors, supra.

Discussion

Gilley has failed to show that he was entitled .to a new trial under the peremptory grounds of La. C.C.P. art. 1972 or the discretionary grounds of La. C.C.P. art. 1973. In support of his request for a new trial, Gilley argued that he could not get an affidavit from Ernest Edwards and made unfounded attacks on the credibility •of Jerry Edwards, Gilley offered the affidavit of Joe Poland, but that affidavit did not state that any temporary power supply .or other power sourcé was connected to the wiring in the building. Gilley also sought to submit electric bills for the supplemental power used during construction.

| isln support of his claim that he was injured in the alleged accident, Gilley offered hearsay from his dentist, and claimed that he had letters, not affidavits, from various doctors at Johns Hopkins. He also claimed he had been evaluated by a neurologist and a psychologist. None of these items were filed into evidence or proffered; therefore, they are not in the record for review.

The WCJ found that all these items failed to qualify as newly discovered evidence because they were known by Gilley prior to the hearing on the motion for summary judgment. We ñnd no abuse of discretion in that decision. Further, Gilley has failed to show that any other good grounds exist for the granting of a new trial. Gilley received notice of the summary judgment proceedings and had ample and unimpeded opportunity to present his case at that time. He simply failed to take advantage of that opportunity and is not now entitled to a new trial.

CONCLUSION

For the reasons stated above, we affirm the decision of the WCJ granting summary judgment in favor of the defendant, Gilley Enterprises, and its insurer, Liberty Mutual, dismissing with prejudice the claims of thej ip plaintiff, Christopher Gilley, and denying the motion for new trial filed by him. All costs in this court are assessed to Christopher Gilley.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, MOORE, LOLLEY, GARRETT and STONE, JJ.

Rehearing denied.

      . The motion and order by the attorney to withdraw stated that Gilley refused to follow his advice and contacted opposing counsel when he had been told not to do so.

      . The beginning portion of the letter reads as follows:
      I, Christopher M Gilley, would like to ask you for a new hearing please. On May 11,1 truly apologize on being late and absent for the previous hearing. Not being a person for giving excuses because it's not things people like hearing when you are required to be on time, especially for one of the most important moments in one's life! That Monday morning I was having stomach pains then started regurgitating in return, triggering my entire body to be in excruciating pain. The next day pouring milk for cereal, it looked really bad (not able to smell well anymore), then I noticed an expiration date February 25th. Not often I have pity for myself, but that was sad.

      . La. C.C.P. art. 1974 provides:
      The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the. notice of judgment as required by Article 1913.

      . Normally, a judgment denying a motion for new trial is an interlocutory ruling and not an appealable judgment. However, courts consider the appeal of a denial of a motion for new trial as an appeal of the judgment on the merits when it is clear that the intent was to appeal the merits of the case. Harter v. Harter, 50,942 (La.App. 2 Cir. 11/10/16), 208 So.3d 971; 9029 Jefferson Highway, L.L.C. v. S & D Roofing, L.L.C., 15-686 (La. App. 5 Cir. 2/24/160), 187 So.3d 522.

      . Louisiana URCA 2-12.4 provides in part:
      A. The brief of the appellant shall contain, under appropriate headings and in the order indicated;

      (5) assignments of alleged errors;
      (6) a listing of issues presented for review;
      (7) a statement of facts relevant to the assignments of error and issues for review, with references to the specific page numbers of the record;
      (8) a short summary of the argument, i.e., a succinct, clear and accurate statement of the arguments made in the body of the brief;
      (9) the argument, which shall contain:
      (a) appellant’s contentions, with reference to the specific page numbers of the record and citations to the authorities on which the appellant relies

      B. (3) The court may disregard the argument on an assignment of error or issue for review if suitable reference to the specific page numbers of the record is not made. (4) All assignments of error and issues for review must be briefed. The court may consider as abandoned any assignment of error or issue for review which has not been briefed.

      . Gilley’s assignments of error one, two, and five, purporting to complain of lack of due process, read as follows:
      (1) The trial court held a hearing without Christopher Gilley or an attorney in his presence.
      (2) The trial court did not postpone or delay hearing for Christopher Gilley, or temporary [sic] delay after a request. Was told his case would be put behind another case, but the trial for Christopher Gilley was taken first,
      (5) The trial court did not proceed with due process in allowing claimant to plea [sic] his case in a trial hearing.

      . We note that La. C.C.P. art. 966 was amended by La. Acts 2015, No. 422. The Act states that its provisions shall not apply to any motion for summary judgment pending adjudication or on appeal on the effective date of Act, January 1, 2016.

      . La. Dist. Ct. R. 9.9 was also amended, effective January 1, 2016.

      . Gilley’s assignments of error three and four read as follows:
      (3) The trial court did not order the employer to pay for Christopher Gilley’s wages and medical treatments.
      (4) The trial court held a hearing for motion summary judgment [sic] when the motion was taken on false affidavit given by Jerry Edwards Electric.

      . Gilley’s assignment of error six reads as follows:
      (6) The trial court denied a new trial request by Christopher Gilley, Evidence of medical reports or Entergy bills were not allowed when a hearing trial was given when Mr. Gilley requested a new trial in place of where his original hearing took place without him present,

      . On April 24, 2017, Gilley filed what appears to be a reply brief and attached documents he seeks to have recognized as evidence in this case. The documents were not presented to the WCJ and were not filed into evidence below. URCA 2-12,7 provides, in part, that the reply brief of an appellant shall be filed not later than 10 calendar days after the appellee’s brief is filed. Gilley Enterprises timely filed its brief on February 16, 2017. This matter was submitted for decision by this court on the April 2017 docket, which was heard April 3-5, 2017, Gilley did not file a motion for leave of court to be allowed to submit an untimely reply brief. Gilley's untimely brief and the attachments are not properly before this court for review and have not been considered in the decision of this case.


author: BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Willie C. PLATER, Appellant
    No. 51,338-KA
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2017

      LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant
    WILLIE C. PLATER, Pro Se

      JEFFREY M. LANDRY, Attorney General, COLIN CLARK, Deputy Solicitor General, JAMES E. STEWART, SR., District Attorney, TOMMY J. JOHNSON, LAURA O. FULCO, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, DREW, and MOORE, JJ.
   BROWN, C.J.

hOn September 20, 1992, Steven Potter sustained a fatal gunshot wound to the back of his head as he unloaded trash from his vehicle parked near a dumpster. Potter’s vehicle was stolen. Willie Plater, along with two other individuals, was arrested. Although Plater was indicted on a charge of first degree murder, a unanimous jury ultimately convicted him of second degree murder. Plater, who was 17 years old when the crime was committed, received the mandatory sentence of life imprisonment at hard labor to be served without the benefit of parole, probation, or suspension of sentence. Plater appealed. This Court affirmed Plater’s conviction and sentence. State v. Plater, 26,252 (La. App. 2 Cir. 09/21/94), 643 So.2d 313, writ denied, 94-2608 (La. 02/03/95), 649 So.2d 402.

In Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders. The Miller court did not establish a categorical prohibition against life without parole for juvenile homicide offenders; instead, the case required the sentencing court to consider certain factors, including the offender’s youth, before deciding whether to impose life with or without parole.

In 2016, the United States Supreme Court, in Montgomery v. Louisiana, 577 U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), held that Miller applied retroactively. On April 29, 2016, Plater filed a motion and memorandum in support of his resentencing pursuant to La. C. Cr. P. art. 882.

laThe resentencing hearing was held on June 20, 2016. The state waived its right to present evidence that Plater is irreparably corrupt, and defense counsel did not present any evidence. The trial court vacated Plater’s original sentence and resentenced him to life imprisonment with the benefit of parole eligibility under La. R.S. 15:574.4(E).

Defense counsel filed a motion to reconsider sentence, arguing that if Plater would have had the opportunity to present evidence at the hearing, he would have been resentenced to manslaughter. Plater also filed a pro se motion to reconsider sentence. The trial court denied both motions. This appeal followed.

DISCUSSION

The defense argues that because the mandatory sentence of life imprisonment without the benefit of parole for second degree murder is unconstitutional, Plater should have been resentenced to the next lesser included offense of manslaughter in effect at the time of the commission of the offense, citing State v. Craig, 340 So.2d 191 (La. 1976). The maximum sentence for a manslaughter conviction in 1992 was 21 years. In the alternative, the defense contends that the trial court should have reviewed Plater’s record and used its authority to deviate downward from the mandatory minimum sentence to impose a sentence that was not constitutionally excessive.

In-response to Miller, the Louisiana legislature enacted La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E), which became effective on August 1, 2013.

La. C. Cr. P. art. 878.1 requires a trial court to conduct a hearing prior to imposing a life without parole sentence on- a juvenile murder defendant:

A. In any case where an offender is to be sentenced to. life imprisonment for a conviction of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1) where the offender was under the age of eighteen' years at the time of the commission of the offense, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
B. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the .offender, the offender’s level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.

In the event that the trial court imposes a life sentence with parole eligibility, La. R.S. 15:574.4(E) provides the conditions, which include serving 35 years of the sentence imposed, before the defendant can apply to the parole board for parole consideration.

In Montgomery v. Louisiana, 577 at U.S. -, 136 S.Ct. at 736, the United States Supremé Court, in addressing concerns .that the retroactive application of Miller would place an undue hardship on states, stated the following:

Giving Miller retroactive effect, moreover, does not require States to reliti-gate sentences, let alone convictions, in every, case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing . those offenders to be considered for parole ensures that juveniles whose crimes reflected . only transient immaturity— and. who have since matured—will not be. forced to serve a disproportionate |¿sentence-in violation of the Eighth , Amendment. (Emphasis added.) .

On- remand, the - Louisiana Supreme Court in State v. Montgomery held that absent new legislation to the contrary, courts should utilize La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) when conducting resentencing hearings for juvenile homicide defendants sentenced prior to Miller. State v. Montgomery, 13-1163 (La. 06/28/16), 194 So.3d 606.

In State v. Fletcher, 49,303 (La.App. 2 Cir. 10/01/14), 149 So.3d 934, 942, writ denied, 14-2205 (La. 06/05/15), 171 So.3d 945, cert. denied, - U.S. -, 136 S.Ct. 254, 193 L.Ed.2d 189 (2015), this Court rejected claims that La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) are unconstitutional. In discussing the effects of Miller, we explained the following:

We find no error in the trial court’s denial of the defense motion to declare the statutes unconstitutional, Like the trial court, we observe that the Miller court was presented with an opportunity to categorically declare that no juvenile murderer shall be imprisoned, without benefit of parole, but it specifically refused to do so. The Supreme Court plainly recognized that the circumstances of some murders and the characters of some juvenile killers would warrant the imposition of the “harshest possible penalty,” and it gave the sen-tencer latitude to respond appropriately to those situations.

See also State v. Doise, 15-713 (La.App. 3 Cir. 02/24/16), 185 So.3d 335, writ denied, 16-0546 (La. 03/13/17), 216 So.3d 808, 2017 WL 1075529.

In State v. Craig, 340 So.2d 191, 193-94 (La. 1976), the Louisiana Supreme Court held that the mandatory death sentence for aggravated rape was unconstitutional and that the appropriate remedy to correct an illegal sentence was to remand the case for resentencing of the defendant to the most serious penalty for the next lesser included offense.

However, in State v. Shaffer, 11-1756 (La. 11/23/11), 77 So.3d 939, the Louisiana Supreme Court took a different approach. There, in consolidated writ applications, three defendants sought relief from their life sentences following their convictions for aggravated rape committed while juveniles after the United States Supreme Court held that the Eighth Amendment precludes sentencing a juvenile to life imprisonment without the possibility of parole for a non-homicide offense in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The Louisiana Supreme .Court rejected the. defendants’ argument that they should be sentenced under the lesser included offense of attempted aggravated rape as was done in State v. Craig, supra. Instead of remanding the cases for resentencing, the supreme court amended the defendants’ life.sentences to delete the restriction on parole eligibility. See also State v. Leason, 11-1757 (La. 11/23/11), 77 So.3d 933.

Further, this Court, along with several other circuits, has rejected the claim that juvenile homicide defendants. should be sentenced under the manslaughter statute. See State v. Williams, 50,060 (La.App. 2 Cir. 09/30/15), 178 So.3d 1069, writ denied, 15-2048 (La. 11/15/16), 209 So.3d 790; State v. Williams, 15-0866 (La.App. 4 Cir. 01/20/16), 186 So.3d 242, writ denied, 16-0332 (La. 03/31/17), 217 So.3d 358, 2017 WL 1315822; State v. Jones, 15-157 (La. App. 5 Cir. 09/23/15), 176 So.3d 713; State v. Graham, 14-1769 (La.App. 1 Cir. 04/24/15), 171 So.3d 272, writ denied, 15-1028 (La. 04/08/16), 191 So.3d 583.

IfiThe holding of Miller was that sentencing schemes which require mandatory life without parole sentences for juvenile homicide defendants violate the Eight Amendment’s prohibition against cruel and unusual punishment. The Supreme Court expressly refused to invalidate sentencing schemes which allowed for a life without parole sentence for juvenile homicide defendants, recognizing that some juvenile homicide defendants, namely, those whose crime demonstrates “irreparable corruption,” may well deserve a life without parole sentence. However, the Supreme Court made clear that before imposing such a sentence, a sentencer is “require[d] ... to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 567 U.S. at 480, 132 S.Ct. at 2469.

The legislature complied with Miller and Montgomery by enacting La. C. Cr. P. art. 878.1, which requires courts to consider the Miller factors prior to determining whether or not a juvenile homicide defendant should be eligible for parole. As implicitly approved by the Supreme Court, see Montgomery, 577 U.S. at -, 136 S.Ct. at 736, Louisiana also enacted La. R.S. 15:574.4(E), which permits a juvenile homicide defendant who has been sentenced to life with parole eligibility, an opportunity to seek parole after serving at least 35 years of his sentence, among other requirements.

As to Plater’s argument that he should have been sentenced under the manslaughter statute, such an argument has been rejected by the Louisiana Supreme Court under similar resentencing conditions, State v. Shaffer, supra, and by this Court and other circuits when affirming Miller defendants’ life with parole sentences. See State v. Williams, supra; State v. Jones, supra; State v. Graham, supra. The trial court properly utilized La. R.S. 14:30.1 and La. C. Cr. P. art. 878.1 when resen-tencing Plater, who is not entitled to be resentenced to the next lesser included offense of manslaughter.

In State ex rel. Morgan v. State, 15-0100 (La. 10/19/16), 217 So.3d 266, 2016 WL 6125428, the Louisiana Supreme Court held that La. C. Cr. P. art. 930.3 provides no basis for post-conviction claims of trial court sentencing error. Thus, we also find that the defense’s argument that Plater’s sentence of life imprisonment with parole eligibility is excessive is procedurally barred.

In a pro se brief, Plater presents several other assignments of error.

Plater first argues that the trial court’s retroactive application of La. R.S. 15:574.4(E) in resentencing him violated his right to fair notice and the prohibition against ex post facto laws.

The law in effect at the time of the commission of the offense is determinative of the penalty that the convicted accused must suffer. State v. Sugasti, 01-3407 (La. 06/21/02), 820 So.2d 518.

Art. I, § 10 of the United States Constitution and La. Const. art. I, § 23 prohibit ex post facto application of the criminal law by the state. The focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790; State ex rel. Olivieri v. State, 00-0172 (La. 02/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001).

In response to Miller, the Louisiana legislature enacted La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E), which became effective on August 1, 2013. In State v. Montgomery, supra, the Louisiana Supreme Court held Rthat courts should utilize La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) when conducting resentencing hearings for juvenile homicide defendants sentenced prior to Miller, as in the instant ease. Since Plater’s original life sentence was imposed without the benefit of parole, his penalty was lessened by application of La. R.S. 15:574.4(E), which allows him to be considered for release on parole after serving 35 years of his sentence. La. R.S. 15:574,4(E) did not redefine criminal conduct or increase the penalty which Plater faced. Therefore, the trial court did not violate Plater’s right to fair notice or the prohibition against ex post facto laws when it subjected Plater to the parole consideration guidelines in La. R.S. 15:574.4(E).

Moreover, to the extent Plater argues that he should have been resentenced under the manslaughter statute, this claim is without merit, as discussed above. These assignments of error are without merit.

Plater argues that his sentence is illegal because the legislature has not amended the second degree murder statute to provide for sentencing of juveniles. He claims that he did not receive an individualized sentence as required by Miller because the trial court simply granted him parole eligibility. He argues that the 35-year mandatory minimum parole consideration provision of La. R.S. 15:574.4(E) vitiates the sentencing court’s ability to craft a lesser sentence that it deems appropriate after consideration of the factors set forth in La. C. Cr. P. art. 878.1. Plater claims that because he has no right to parole under La. R.S. 15:574.4(E), and because of the onerous conditions placed on his parole eligibility, Louisiana has failed to satisfy the requirements of Miller.

As this Court noted in State v. Fletcher, supra, the legislature was not required to amend the second degree murder statute to provide for |9sentencing of juvenile homicide defendants. The legislature designed an adequate solution to Miller by creating statutes relating to parole eligibility for juvenile homicide defendants which are to be read in conjunction with the murder statutes. To the extent Plater argues that he was entitled to a hearing and the imposition of an individualized sentence, Miller did not impose such a requirement in cases where parole eligibility was permitted. In Miller, the Supreme Court explained that the Eighth Amendment does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, nor does it require the court to consider the mitigating factors of youth before imposing such a sentence. Instead, a sentencing court’s obligation to consider youth-related mitigating factors is limited to cases in which the court imposes a sentence of life, or its equivalent, without parole. See Miller, 567 U.S. at 469-78, 132 S.Ct. at 2463-69.

CONCLUSION

For the foregoing reasons, defendant’s sentence is affirmed.

AFFIRMED.

      . In his motion to reconsider sentence, Plater raised the same arguments as he does in his pro se assignments of error before this Court.

        . State v. Shaffer has been superseded in part by amendments and enactments to La. R.S. 15:574.4.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Field CALHOUN, Appellant
    No. 51,337-KA
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2017

      LOUISIANA APPELLATE PROJECT, By: Carey J. Ellis, III, FIELD CALHOUN, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, SUZANNE MORELOCK WILLIAMS, LAURA OWEN WINGATE FULCO, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, DREW, and COX, JJ.
   DREW, J.

| tAfter his 1989 conviction for first degree murder, Field Calhoun was sentenced to life at hard labor without benefit of probation, parole, or suspension of sentence. We affirmed his conviction and sentence in State v. Calhoun, 554 So.2d 127 (La. App. 2 Cir. 1989), writ denied, 558 So.2d 601 (La. 1990). The defendant was 17 when he committed this gruesome crime.

Because of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana, 577 U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the trial court in 2016 amended the sentence to allow him the benefit of parole eligibility.

The defendant now appeals. His appellate counsel has filed a motion to withdraw, together with a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that there are no nonfrivolous issues upon which to base an appeal. We agree with counsel.

The defendant filed a pro se brief, assigning four errors. None have merit.

We affirm the defendant’s life sentence with parole eligibility. We also grant counsel’s request to withdraw from this case.

FACTS

On August 9, 2012, the defendant filed a pro se motion to correct an illegal sentence, arguing that mandatory life without parole was unconstitutional under Miller v. Alabama, supra, because he was 17 years old when he killed the victim.

After Montgomery held that Miller was to be applied retroactively to cases on collateral review, defense counsel filed a motion to vacate this ^sentence, arguing that he should be sentenced to the next lesser included offense of manslaughter.

At the 2016 sentencing hearing, no witnesses were called. The trial court:

• rejected defendant’s arguments regarding the ex post facto application of La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E);
• declined to resentence under the manslaughter statute; and
• granted to the defendant the possibility of parole consideration.

The trial court denied defendant’s pro se motion to reconsider sentence.

DISCUSSION

The defendant’s appellate counsel has filed a motion to withdraw, alleging that he could find no nonfrivolous issues to appeal, as per Anders, supra; State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241; State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La. App. 4 Cir. 1990). The state agrees that no nonfrivolous issues exist on appeal.

This Court issued an order, pending this appeal, to hold defense counsel’s motion to withdraw in abeyance; and rescind the previous deadline for filing a pro se brief.

Defendant’s Four Pro Se Assignments of Error:

1. The sentence violates the Fifth Amendment protection of “fair notice.”
2. This sentence under La. R.S. 15:574.4 (E) is an ex post facto violation.
3. The assessed sentence was not allowed at the time of conviction;
4. This sentence is not individualized.

laThe defendant argues:

• the trial court’s retroactive application of La. R.S. 15:574.4(E) violated his right to fair notice and the prohibition against ex post facto laws;
• at the time of the offense, in 1986, Louisiana’s jurisprudence provided that if a sentence was found to be unconstitutional, the defendant would be resentenced to the penalty provision for the next lesser included offense;
• because his sentence of life imprisonment without parole is unconstitutional, he should have been resen-tenced under the 1986 manslaughter statute;
• in that year, manslaughter carried a maximum of 21 years;
• the application of La. R.S. 15:574.4(E), providing for parole consideration only after 35 years, results in a longer period of incarceration than he would have received for a conviction of manslaughter as it read in 1986;
• his sentence is illegal because the legislature has not amended the first degree murder statute to provide for sentencing of juveniles;
• he did not receive an individualized sentence as required by Miller, supra, because the trial court simply granted him parole eligibility;
• the 35 years before parole consideration in La. R.S. 15:574.4(E) vitiates the sentencing court’s ability to craft a lesser sentence that it deems appropriate after consideration of the factors set forth in La. C. Cr. P. art. 878.1; and
• because he has no realistic right to parole, his sentence violates Miller.

Applicable Law

For those offenders convicted of first degree murder in Louisiana, La. R.S. 14:30 provides for a sentence of death or life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. However, in Miller, supra, the United States Supreme Court held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” The Miller court did not establish a categorical prohibition against life imprisonment without | ¿parole for juvenile homicide offenders; instead, the case requires the sentencing court to consider an offender’s youth and attendant characteristies as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles convicted of a homicide offense. State v. Williams, 12-1766 (La. 3/8/13), 108 So.3d 1169; Montgomery v. Louisiana, supra. Miller drew a line between children whose crimes reflect transient immaturity and those few whose crimes reflect irreparable corruption. Life without parole is the correct sentence for the latter group. In response to Miller, our legislature enacted La. C. Cr. P. art. 878.1.

If the trial court imposes a life sentence with parole eligibility, La. R.S. 15:574.4(E) was added to require many conditions, such as serving 35 years of the sentence before making application to the parole board.

In Montgomery, supra, retroactivity was added to the holding in Miller, supra. The court alleviated concerns that the retroactive application of Miller would place an undue hardship on states.

|fiOn remand, the Louisiana Supreme Court in Montgomery, supra, held that courts should utilize La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) when reviewing sentences for juvenile homicide defendants sentenced before Miller.

Constitutionality of La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E)

This Court and the Louisiana Third Circuit Court of Appeal have addressed and rejected claims that La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) are unconstitutional in light of the requirements of Miller.

As the Louisiana Supreme Court held in State v. Shaffer, 11-1756 (La. 11/23/11), 77 So.3d 939, the mere access to the Board of Parole’s consideration satisfies the mandates of Miller, as opposed to any requirement for resentencing for a lesser offense. Further, resentencing under the manslaughter statute has been rejected soundly in our state appellate courts.

\rJEx Post Facto Laws

The law in effect at the time of the crime determines the penalty to be suffered by the criminal. State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518. Article I § 10 of the United States Constitution and La. Const, art. I, § 23 prohibit ex post facto application of the criminal law by the state. The focus of the ex post facto inquiry is whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790; State ex rel. Olivieri v. State, 00-0172 (La. 2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001). Clearly, the instant situation does neither. The trial court scrupulously awarded this defendant all to which he was entitled in parole consideration under the guidelines in La. R.S. 15:574.4(E).

This sentence is not illegal. He received the mandatory minimum sentence available under Miller, La. R.S. 14:30, and La. C. Cr. P. art. 878.1. As this Court noted in Fletcher, supra, the legislature was not required to amend the murder statutes to provide for sentencing of juvenile homicide defendants. The legislature designed an adequate solution to Miller by creating statutes relating to parole eligibility for juvenile homicide defendants which are to be read in conjunction with the murder statutes. He has a chance at parole, but he will have to earn it. This scheme is reasonable and satisfies Miller, supra.

To the extent the defendant argues that he was entitled to a hearing and the imposition of an individualized sentence, Miller imposed no such requirement in cases where parole eligibility was permitted. In Miller, the Supreme Court explained that the Eighth Amendment does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, nor does it require the court to consider the mitigating factors of youth before imposing such a sentence. Instead, a sentencing court’s obligation to consider youth-related mitigating factors is limited to cases in which the court imposes a sentence of life, or its equivalent, without parole. See Miller, supra, 132 S.Ct. at 2463-69. The sole question to be answered in a Miller hearing is whether the defendant should have a chance for parole. The trial court granted defendant all to which he was entitled. The rest is up to him.

DECREE

We affirm the sentence allowing the defendant potential parole eligibility. Counsel’s motion to withdraw is granted.

SENTENCE AFFIRMED; COUNSEL’S MOTION TO WITHDRAW GRANTED.

      . Art. 878.1. Sentencing hearing for juvenile offenders
      A. In any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30,1) where the offender was under the age of eighteen years at the time of the commission of the offense, a hearing shall be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E).
      B. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender’s level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.

      . "Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. § 6—10—301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity— and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment, Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.” 577 U.S. at -, 136 S.Ct. at 736.

      . See State v. Fletcher, 49,303 (La.App. 2 Cir. 10/1/14), 149 So.3d 934, writ denied, 14-2205 (La. 6/5/15), 171 So.3d 945, cert. denied, - U.S. -, 136 S.Ct. 254, 193 L.Ed.2d 189 (2015); and State v. Doise, 15-713 (La.App. 3 Cir. 2/24/16), 185 So.3d 335, writ denied, 2016-0546 (La. 3/13/17), 216 So.3d 808, 2017 WL 1075529.

      . See State v. Williams, 50,060 (La.App. 2 Cir. 9/30/15), 178 So.3d 1069, writ denied, 15-2048 (La. 11/15/16), 209 So.3d 790; State v. Graham, 14-1769 (La.App. 1 Cir. 4/24/15), 171 So.3d 272, writ denied, 15-1028 (La. 4/8/16), 191 So.3d 583; State v. Jones, 15-157 (La. App. 5 Cir. 9/23/15), 176 So.3d 713; State v. Williams, 15-0866 (La.App. 4 Cir. 1/20/16), 186 So.3d 242, writ denied, 2016-0332 (La. 3/31/17), 217 So.3d 358, 2017 WL 1315822.