author: Judge Joy Cossich Lobrano

text:
    STATE of Louisiana IN the INTEREST OF M.B.
    NO. 2016-CA-0819
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 19, 2017

      Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, ORLEANS PARISH, Scott Vincent, ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPEL-LEE/STATE OF LOUISIANA
    Katherine M. Franks, LOUISIANA APPELLATE PROJECT, P.O. Box 1677, Abita Springs, LA 70420—1677, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew Woods)
   Judge Joy Cossich Lobrano

|,In this juvenile delinquency case, M.B., appeals his May 17, 2016 delinquency adjudication on charges of attempted carjacking and attempted purse snatching. Finding that there is sufficient evidence to support the delinquency adjudication, and that no error in the proceedings below merits reversal, we affirm the judgment of the juvenile court.

M.B. was arrested on January 11, 2016, following an incident at the Mardi Gras Museum. On that day, V.E. and her child K.E. attended a tour at the museum, after which they returned to their vehicle. Upon entering the vehicle, a voice from the back seat, later identified as M.B., ordered V.E. and K.E. out of the car. They did not comply, and instead ordered M.B. out of their vehicle.

M.B. left the back seat and attempted to drag V.E. from the car. K.E. grabbed V.E., keeping her inside the car. After a struggle, M.B. ceased trying to remove V.E. from the car and instead attempted to grab V.E.’s purse, which was sitting on the center console. This attempt was unsuccessful, and M.B. fled.

liW-E. drove out of the area quickly, and flagged down NOPD Officer Jermell Taylor (“Officer Taylor”). V.E.' described her assailant to Officer Taylor, who broadcast a description of the suspect. Officer Taylor began searching for an individual who met the description V.E. had provided. Officer Taylor saw M.B., who ran from the police car. M.B. was apprehended and returned by officers to the area near the Mardi Gras Museum where V.E. had flagged down Officer Taylor. There, V.E. and KE. both identified M.B. as the person who attempted to carjack V.E.’s car and snatch her purse.

When V.E. and KE. identified him, M.B. was handcuffed beside a police car about twenty feet from where V.E. and KE. were parked in their vehicle. Officer Taylor approached V.E. and KE., and said “we caught the subject.” V.E. then indicated to Officer Taylor that M.B. was the individual who attempted to carjack her and snatch her purse. KE. also identified M.B.

On January 14,2016, the State of Louisiana (“State”) filed a delinquency petition charging M.B. with attempted carjacking and attempted purse snatching. On January 29, 2016, as part of pretrial discovery, the prosecutor transmitted the thirteen body camera videos associated with this incident’s NOPD item number to defense counsel.

|3M.B.’s adjudication hearing began on April 11, 2016. The State called V.E. and KE. to testify, after which the juvenile court called for a recess for the weekend. The adjudication hearing resumed on April 14, 2016. When the adjudication hearing resumed, the State called Officer Taylor and NOPD Sergeant Travis Brooks (“Sgt. Brooks”) to testify. Near the beginning of his direct examination, Sgt. Brooks revealed that in addition to reviewing his own body camera footage in preparation for the hearing, he had also reviewed Officer Taylor’s body camera footage. Upon hearing that testimony, M.B. moved for a mistrial on the grounds that M.B. had not been provided with Officer Taylor’s body camera footage. The State countered that M.B. was provided all body camera footage associated with the relevant item number through Evidence.com. The juvenile court reserved ruling on the motion until the conclusion of Sgt. Brooks’ testimony. After Sgt. Brooks finished testifying, the State rested.

A brief bench conference took place following Sgt. Brooks’ testimony, and the prosecutor accessed Evidence.com. She then discovered that two additional body camera videos were present under the relevant item number. These files were not present when the body camera footage was sent on January 29, 2016. The prosecutor then sent the defense the fifteen files associated with the relevant item number through Evidence.com. The defense noted that she received the additional videos, and the juvenile court recessed for the weekend.

14On April 18, 2016, the adjudication hearing resumed. At that time, the defense re-addressed the mistrial motion, stating that the material was “Brady and that she wished to re-cross examine Officer Taylor, V.E., and K.E. in light of the contents of the two additional videos. After hearing these arguments, the juvenile court declared a mistrial. The defense attorney then attempted to withdraw the motion for a mistrial, after the juvenile court had already ruled, stating “I’d ask the State to agree that we would just bring everyone back for the purposes of the Defense specifically being crossed on the information....” The juvenile court refused to reconsider its ruling.

On May 17, 2016, the second adjudication hearing took place. M.B. was found delinquent for attempted carjacking and attempted purse snatching. He was sentenced to three years in the custody of Office of Juvenile Justice, with one year suspended.

This appeal timely follows.

Admission of the Identifications and Sufficiency of the Evidence

First, M.B. argues that his delinquency adjudication should be reversed because the juvenile court should have granted his motions to suppress both the out-of-court and in-court identifications. Alternatively, M.B. argues that because | Hthe identification was unreliable, the evidence was insufficient to support the adjudication, and thus, the adjudication should be reversed.

“A trial court’s determination of the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion.” State v. Kimble, 2010-1559, p. 12 (La.App. 1 Cir. 3/25/11), 62 So.3d 782, 790. When determining whether an out of court identification should be admitted, courts focus on whether police used an “impermissibly suggestive procedure” to obtain the identification. Manson v. Brathwaite, 432 U.S. 98, 107, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140 (1977). In so deciding, courts must determine if the procedure gave rise to a substantial likelihood of misidentification under a totality of the circumstances. Id. Factors to consider when making this determination include the victim’s opportunity to view the defendant, their level of attention, the accuracy of the prior description, their level of certainty, and the time between the crime and the identification. Id. “Even a suggestive out-of-court identification will be admissible if it is found reliable under the totality of the circumstances.” State v. Guy, 95-0899, pp. 9-10 (La.App. 4 Cir. 1/31/96), 669 So.2d 517, 523. This analysis applies in juvenile cases as well as criminal cases. See State ex rel. C.J., 2010-1350, p. 5 (La. App. 4 Cir. 2/9/11), 60 So.3d 46, 50.

One-on-one identification procedures, like the one used in the case sub judice, are not favored, but are permissible when they are justified by the overall circumstances. State v. Nogess, 98-0670, p. 3 (La.App. 4 Cir. 3/3/99), 729 So.2d 132, 134 (citations omitted); see also State ex rel. W.H., 2010-1418, p. 7-8 (La.App. 4 Cir. 4/6/11), 62 So.3d 839, 845 (applying this principle when reviewing a show-up identification that was admitted in a juvenile delinquency adjudication). One-on-one identifications are considered particularly justified when the accused is apprehended within a relatively short period of time after the crime has been committed and has been returned to the crime scene. Id. This Court has rejected the idea that one-on-one identifications are per se suggestive. See, e.g., State v. Green, 2010-0791, p. 8 (La.App. 4 Cir. 9/28/11), 84 So.3d 573, 580 (citations omitted); State v. Briley, 2013-1421, p. 16 (La.App. 4 Cir. 10/1/14), 151 So.3d 633, 644 (citations omitted).

In Nogess, this Court held that a one-on-one identification procedure was not unduly suggestive when the victim overheard on police radio that the police had apprehended suspects fitting the description by the victim. 98-0670, pp. 5-6, 729 So.2d at 135. Similarly, in the case sub judice, M.B. argues that because Officer Taylor said “we caught the subject” to V.E., the identification procedure was unduly suggestive. The Nogess Court found that it was obvious that anyone the police apprehended would be a suspect who fit the description given by the victim, and thus the radio call did not suggest that the Nogess victim should identify the defendant. Id. at 98-0670, p. 6, 729 So.2d at 135.

In finding such, the Nogess court relied on State v. Valentine, 570 So.2d 533 (La. App. 4 Cir. 1990). In Valentine, the victims were present when an officer was radioed and informed that a suspect was apprehended. Id. at 537. After the call, the officer said to the victims, “[w]e have someone we want you to see, to see if this is, in fact, the person who robbed you.” Id. (internal quotations omitted). The 17'Valentine court found that because the officer pointed out that the suspect may not be the perpetrator, the victim was not predisposed to identify the defendant. Id.

Like the statements at issue in Nogess and Valentine, Officer Taylor’s statement to the victims fails to render the identification unduly suggestive such that, under the totality of the circumstances, a substantial likelihood of misidentification resulted. Officer Taylor’s statement, whether it was “we caught the suspect” or “we caught the subject”, did not imply that anyone was in custody other than someone meeting V.E. and K,E.’s description. Further, V.E. testified that during one point in the altercation, she was inches away from the perpetrator’s face, and that she was absolutely certain M.B. was the same person when she identified him, from only approximately twenty feet away, on a clear day. K.E. testified that she knew immediately upon seeing M.B. that he was the person responsible for the crime committed against them. Thus, even if the identification could be considered suggestive based on Officer Taylor’s statement, considering the Brathwaite factors, the identification was independently reliable and not so suggestive that a substantial likelihood of misidentification arose. The juvenile court did not abuse its discretion in admitting the out-of-court identification. Further, because the in-court identification was based on the out-of-court identification, the juvenile court did not abuse its discretion in admitting the in-court identification.

This assignment of error lacks merit.

As to M.B.’s sufficiency of the evidence challenge, the applicable standard of review is both the, “rational fact-finder” standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 660 (1979) and the “clearly wrong/manifest error” standard of Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). State in the Interest of T.S., 2014-0403, p. 1 (La.App. 4 Cir. 9/3/14), 150 So.3d 18, 20. See also La. Const.art. 5, § 10, 18 and 19; State in the Interest of Batiste, 367 So.2d 784, 789 (La.1979). Under Jackson, viewing the evidence in the light most favorable to the prosecution, courts analyze whether any rational trier of fact could have found that the State proved its case beyond a reasonable doubt. State ex rel. C.N., 2011-0074, pp. 4-5 (La.App. 4 Cir. 6/29/11), 69 So.3d 711, 714.

The manifestly erroneous-clearly wrong standard has been interpreted as broader than the minimum standard mandated by the federal constitution and memorialized in Jackson v. Virginia. State ex rel. W.H., 2010-1418, p. 2 (La.App. 4 Cir. 4/6/11), 62 So.3d 839, 842. Under the manifestly erroneous-clearly wrong standard, courts do not disturb a fact-finder’s findings if, after a review of the entire |flrecord, the court concludes that the findings are reasonable and not clearly wrong. State ex rel. W.H., 2010-1418, pp. 2-3 (La. App. 4 Cir. 4/6/11), 62 So.3d 839, 843 (citations omitted). Further, great deference is given to the fact-finder on matters of credibility. Id., 2010-1418 at p. 3, 62 So.3d at 843.

An attempt occurs when a person who has the specific intent to commit a crime does or omits an act “for the purpose of or tending directly toward the accomplishing of his object....” La. R.S. 14:27. Carjacking is: (1) intentionally taking; (2) a motor vehicle as defined in La. R.S. 32:1(40); (3) belonging to another person; (4) in the presence of that person, a passenger, or someone else lawfully possessing the car; (5) by the use of force or intimidation. La. R.S. 14:64,2. Purse snatching is: (1) the theft; (2) of anything of value; (3) contained in a purse or wallet at the time of the theft; (4) from the person of another or the immediate control of another; (5) by use of force, intimidation, or snatching; (6) while not armed with a dangerous weapon. La. R.S. 14:65.1. M.B. does not argue that the State failed to present evidence of each element of both crimes. Rather, M.B. argues that because the evidence against him, namely the testimony of V.E. and K.E., was based on an unreliable identification, the evidence is insufficient to adjudicate him delinquent.

As noted supra, the identification meets the Brathwaite factor test for reliability. V.E. and K.E. testified that M.B. entered V.E.’s vehicle and tried to force, them out of it, and, failing that, reached for V.E.’s purse while it was sitting next to her. The juvenile court did not manifestly err in finding that the reliable | ^identification made by each of the two witnesses credibly established that M.B, was in fact the person who committed the attempted carjacking and attempted purse snatching. This assignment of error lacks merit.

Mistrial and Motion to Quash

Next, M.B. argues that the juvenile court erred in granting a mistrial, and thus subjected him to double jeopardy when he was re-adjudicated. In the alternative, M.B. argues that the district court erred by denying his motion to quash based on double jeopardy.

La. Ch.C. art. 808 provides that all the rights guaranteed to criminal defendants under the state and federal constitutions, except the right to jury trial, shall be applicable in juvenile court proceedings. See State ex rel. D.J., 2001-2149, p. 3 (La. 05/14/02), 817 So.2d 26, 28. The Fifth Amendment to the United States Constitution, as well as Article 1, § 15 of the Louisiana Constitution of 1974, prohibit placing a person twice in jeopardy of life or limb for the same offense. State v. Bridgewater, 98-658, p. 8 (La.App. 5 Cir. 12/16/98), 726 So.2d 987, 991. Double jeopardy provisions protect an accused not only from a second prosecution for the same offense, but also from multiple punishments for the same criminal act. State v. Jackson, 96-661, p. 13 (La.App. 5 Cir. 4/9/97), 694 So.2d 440, 448 (citations omitted). “When a child enters a denial to the petition, jeopardy begins when the first witness is sworn at the adjudication hearing.” La. Ch.C. art. 811.

The Louisiana Children’s Code does not specifically provide for the remedy of a mistrial. However, La. Ch.C. art. 104. provides that when the Children’s InCode is silent, a juvenile court should follow the Code of Criminal Procedure. A mistrial is warranted if substantial prejudice results which would deprive the defendant of a fair trial. State v. R.W., 98-366, p. 10 (La.App. 5 Cir. 10/14/98), 721 So.2d 943, 948 (citations omitted). La. C.Cr.P. art. 591 provides:

No person shall be twice put in jeopardy of life or liberty for, the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.

Thus, when jeopardy has attached, a mistrial is proper only when the defendant consents or a mistrial is properly ordered under La. C.Cr.P. art. 775.

In the case sub judies, jeopardy attached upon the swearing in of the first witness at the first adjudication hearing. However, the juvenile court properly ordered a mistrial under both La. C.Cr.P. art. 775(1), which allows for a mistrial when a defendant consents, and La. C.Cr.P. art. 775(3), which allows for a mistrial when there is a legal defect in the proceedings which would render a judgment reversible as a matter of law. As noted supra, M.B. originally moved for the mistrial on the grounds that he had not received Officer Taylor’s body camera footage, which his counsel repeatedly asserted contained potentially exculpatory Brady material. After the weekend recess, the juvenile judge addressed the motion. M.B., without withdrawing the motion, proposed several suggestions on how to continue the adjudication without the need for a mistrial. The juvenile judge then pointed out that if there was exculpatory evidence on the body camera footage, the only way to remedy the discovery violation, as all of the witnesses had been cross-examined and the State had rested, would be to grant the mistrial. The juvenile judge granted the mistrial motion at this point.

|12M.B. then objected and attempted to withdraw his previously granted motion for a mistrial. Despite the attempted withdrawal, M.B.’s attorney repeatedly asked that the witnesses be “brought back” for cross-examination and maintained the position that the body camera footage contained potentially exculpatory materials. Under these circumstances, it cannot be fairly said that M.B. did not consent to the mistrial. The mistrial was declared on M.B.’s own motion; prior to M.B.’s withdrawal of that motion. Because the defense did not withdraw its motion for a mistrial until after it was granted, the mistrial was properly ordered under La. C.Cr.P. art. 775(1).

Even if one were to interpret M.B.’s late withdrawal of the mistrial motion as failure to consent to the mistrial, the juvenile court still properly ordered the mistrial under La. C.Cr.P. art. 775(3). The fact that possible Brady material is discovered late does not always rise to the level of a legal defect such that a verdict would be reversible as a matter of law and a mistrial is required. See, e.g., State v. Verret, 2006-1337, pp. 23-24 (La.App. 1 Cir. 3/23/07), 960 So.2d 208, 223(wherein the First Circuit Court of Appeal affirmed a district court’s refusal to grant a defendant’s mistrial motion when Brady evidence was discovered mid-trial because, pursuant to an agreement with the State, the district court instructed the jury as to the late discovered evidence). “Failure to comply with discovery merits mistrial only when the state’s conduct substantially affects the defendant’s right to prepare a defense, State v. Mitchell, 412 So.2d 1042 (La.1982); State v. DeMoss, 582 So.2d 964 (La.App. 2d Cir.1991), or when it rises to the level of a legal defect.” State v. Black, 34,688, p. 13 (La.App. 2 Cir. 5/9/01), 786 So.2d 289, 298.

In the case sub judice, M.B. was prevented from being able to cross-examine witnesses on potentially exculpatory evidence—body camera footage of the identification of M.B. This is especially relevant when we consider that throughout the record below and the briefs before this Court, M.B’s entire defense has rested upon his assertion that he was misidentified. Further, as the Louisiana Supreme Court has stated regarding Brady violations “Evidence is material [and reversal warranted] only if it is reasonably probable that the result of the proceeding would have been different had the evidence been disclosed to the defense. A reasonable probability is one which is sufficient to undermine confidence in the outcome.” State v. Marshall, 1981-3115, p. 16 (La. 9/5/95), 660 So.2d 819, 826. Given the fact that the body camera footage in question contained the very identification M.B’s defense centered upon, a verdict rendered where M.B. had not had access to this particular potential Brady evidence would have been reversible as a matter of law. See Jones v. Cain, 2014-0226, p. 84 (La.App. 4 Cir. 10/8/14), 151 So.3d 781, 801 (wherein this Court found that when an identification was the only evidence tying a defendant to a crime, a Brady violation undermined confidence in the jury’s verdict, resulting in the grant of a post-conviction application). Lastly, as the mistrial was properly granted and M.B. was not subjected to double jeopardy, the juvenile court did not err in denying the motion to quash.

This assignment of error lacks merit.

JjjMotion to Recuse

Lastly, M.B. argues that the juvenile court erred in summarily denying his motion to recuse. La. C.Cr.P. art. 671 states:

A. In a criminal case a judge of any court, trial or appellate, shall be recused when he: (1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial; (2) Is the spouse of the accused, of the party injured, of an attorney employed in the cause, or of the district attorney; or is related to the accused or the party injured, or to the spouse of the accused or party injured, within the fourth degree; or is related to an attorney employed in the cause or to the district attorney, or to the spouse of either, within the second degree; (3) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause; (4) Is a witness in the cause; (5) Has performed a judicial act in the case in another court; or (6) Would be unable, for any other reason, to conduct a fair and impartial trial. B. In any cause in which the state, or a political subdivision thereof, or a religious body is interested, the fact that the judge is a citizen of the state or a resident of the political subdivision, or pays taxes thereto, or is a member of the religious body is not of itself a ground for recusation.

See also State in the Interest of M.J., 2014-0622, p. 24 (La.App. 4 Cir. 2/4/15), 160 So.3d 1040, 1054, 2015-0487 (La. 1/15/16), 184 So.3d 704 (applying La. C.Cr.P. art. 671 to recusals in juvenile cases). If a motion sets forth factual allegations supporting a valid ground for recusal, the judge shall either recuse or refer the motion for hearing by another judge. Id.

In the case sub judice, the juvenile court ruled on the motion to recuse rather than referring the motion to another judge. Therefore, this Court must analyze whether the motion set forth factual allegations supporting a valid ground for recusal. The grounds set forth in M.B.’s motion for recusal were the juvenile judge’s previous adverse rulings, including the grant of the mistrial motion and the denial of a previous motion for release. Because adverse rulings alone are not a Invalid ground for recusal, David v. David, 2014-999, p. 5 (La.App. 3 Cir. 2/4/15), 157 So.3d 1164, 1168; Earles v. Ahlstedt, 591 So.2d 741, 746 (La.App. 1 Cir.1991), the juvenile judge did not err in ruling summarily. This assignment of error lacks merit.

Decree

For the forgoing reasons, the judgment of the juvenile court is affirmed.

AFFIRMED

BELSOME, J., CONCURS IN THE RESULT

BARTHOLOMEW-WOODS, J., RESPECTFULLY DISSENTS.

      . In order to protect the confidentiality of the juvenile and the victims, their names are not used within this opinion.

      , NOPD is an abbreviation for New Orleans Police Department. .

      . The record indicates that there is debate as to whether Officer Taylor said “suspect” instead of "subject.” The body camera footage that memorialized the identification was used to refresh the recollection of several witnesses, but was not admitted into evidence.

      . These body camera videos were transmitted through Evidence.com, the NOPD's official website for storing body camera video. At the time that she sent them to defense counsel, the prosecutor downloaded the same thirteen videos to her hard drive. Although, as discussed infra, there was a problem with later discovered body camera footage, the record indicates that the defense acknowledged receipt of this body camera footage.

      . We note that, throughout the record, the juvenile court emphasized that it did not believe that the prosecutor was aware that the two videos were missing from the original transmission of body camera footage.

      . This is a reference to the seminal case on a prosecutor’s duty to disclose exculpatoiy evidence, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 1195, 10 L.Ed.2d 215 (1963).

      . V.E. and K.E. were released from their subpoenas after their testimony on April 14, 2016. V.E. and K.E., who do not live in Louisiana, had returned to their home several states away upon their release.

      . This portion of the record is discussed in greater detail infra.

      . The juvenile court also recommended non-secured care, and offered several options for M.B. to reduce the period of incarceration.

      . A one-on-one identification procedure, often called a "show-up” identification, is a procedure that takes place shortly after a crime is committed, usually at the scene of the crime or the apprehension of a suspect, where victims are asked whether they recognize a person suspected to be the perpetrator of the crime. State v. Harold, 2003-0649, p. 5 n. 2 (La.App. 4 Cir. 11/12/03), 861 So.2d 262, 265.This type of identification differs from identification through a photo line-up or a physical line-up because only one individual is presented to the victim for identification. Id.

      . See n. 4 supra.

      . Some opinions issued by this Court apply the Jackson v. Virginia standard when analyzing sufficiency of the evidence in juvenile cases without mentioning the manifest error requirement. See, e.g., State in Interest of T.B., 2016-0438, p. 1 (La.App. 4 Cir. 9/14/16), 200 So.3d 814, 815. These opinions are correct in noting that the Jackson standard applies to juvenile cases insofar as one must view the evidence in the light most favorable to the prosecution and determine whether the State proved each element of the offense beyond a reasonable doubt. We note that, in juvenile cases, a slightly different version of the Jackson standard is applied. Though delinquency proceedings can resemble criminal proceedings, they are civil in nature. In re C.B., 97-2783, p. 17 (La. 3/4/98), 708 So.2d 391, 400 ("The hallmark of special juvenile procedures is their non-criminal nature,"). Because delinquency proceedings are civil in nature, the scope of review in Louisiana extends to both law and facts. La. Const. art. V, § 10(B) provides in pertinent part:
      Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction' of a court of appeal extends' to law and facts ... In criminal cases its appellate jurisdiction extends only to questions of law.
      As a result of juvenile delinquency determinations being civil in nature, both the Jackson standard and the manifest-error standard work together to provide juveniles with constitutionally adequate appellate review. Thus, we apply the manifest-error/clearly wrong standard to determine whether sufficient evidence exists to satisfy the Jackson burden of whether any rational fact finder could have found guilt beyond a reasonable doubt. See, e.g., State in Interest of R.D., 2014-0851 (La.App. 4 Cir. 1/28/15), 158 So.3d 936, 937.

      . The record indicates that V.E.’s car was not swabbed for DNA or fingerprints. Further, as noted in footnote six of this opinion, the body camera evidence was not admitted into evidence. Thus, the record on review consists solely of several still photographs of body camera footage that were admitted and the testimony of V.E., K.E., Officer Taylor, and Sgt. Brooks,

      . La. Ch.C. art. 887 provides for vacating an adjudication of delinquency, but only applies when the juvenile has already been adjudicated delinquent.

      . Further, based on our review of the record, it appears that after realizing that two of the witnesses had returned to their out-of-state home over the weekend, the defense believed that refusing to consent to a mistrial would allow M.B.’s adjudication to be finished more quickly. However, the defense attorney maintained the position that the body camera videos contained potential Brady evidence that she had not possessed when preparing M.B.’s defense. It appears disingenuous for an attorney to take a position that alerts the court to a legal defect and refuse to consent to the court correcting that legal defect. Under these particular circumstances, it is improper to allow the defense to benefit from its late withdrawal.


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge. JENKINS, J.,

license: Public Domain

text:
    DURR HEAVY CONSTRUCTION, LLC v. CITY OF NEW ORLEANS.
    No. 2015-CA-0915.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 2016.

      L. Etienne Balart, Jarred G. Trauth, Lauren C. Mastio, Jones, Walker, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Sarah C. Wellman, Derek M. Mercadal, Assistant City Attorney, Adam J. Swen-sek, Deputy City Attorney, Sharonda R. Williams, City Attorney, City of New Orleans, New Orleans, LA, for Defendant/Appellee.
    Scott J. Hedlund, Deutsch, Kerrigan, L.L.P., New Orleans, LA, for Interve-nor/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   JOY COSSICH LOBRANO, Judge.

Iiln this public bid case, appellant Durr Heavy Construction (“Durr”) appeals the portion of the district court’s judgment of July 30, 2015 denying Durr’s petition for injunctive relief to enjoin the awarding of a public work contract. For the reasons which follow, the district court’s order denying injunctive relief is reversed, and this matter is remanded to district court for proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

On March 24, 2015, the City of New Orleans (“City”) issued an Invitation to Bid on a public work for the paving of streets in Lakeview pursuant to the Louisiana Public Bid Law, La. R.S. 38:2211, et seq. (“Public Bid Law”). On page one of the Invitation to Bid, the City identified the public work with Proposal Number 500C-01811 and with the Project Name as “Lakeview Quad 2 Pavement-2012FEMA-1C-2A.” On the same page, the City instructed that bids should be | ¡¡submitted either online or in sealed envelopes bearing the Proposal Number and a Louisiana State Contractor’s License Number.

On May 15, 2015, the sealed bids for the public work were submitted to the City and opened. The City’s bid tabulation reflected that TKTMJ, Inc. (“TKTMJ”) submitted the lowest numerical bid, Roubion Roads & Streets, L.L.C. (“Roubion”) submitted the second-lowest numerical bid, and Appellant Durr was the third-lowest numerical bidder. Neither TKTMJ’s nor Roubion’s bids contained the Proposal Number on the envelope. Rather, both TKTMJ and Roubion had marked their envelopes with the Project Name and with PW 17124. Durr marked its envelope with the Proposal Number as well as with the Project Name and PW 17124.

Durr filed a protest with the City, arguing that the two lower bids were non-responsive, because they did not include the Proposal Number on the front of their submission envelopes as required by the Invitation to Bid. The City denied Durr’s protest, and Durr sought injunctive and other relief in district court which was denied. Durr appeals, arguing that the district court committed legal error by allowing the City to waive a non-waivable provision of the bidding documents, and requesting that we reverse the district court’s denial of the preliminary injunction, and remand this matter to district court. In its appeal, Durr identifies two assignments of error/issues for review: (1) whether the district court erred in | concluding that a requirement stated in the bidding documents was waivable; and (2) whether under the Public Bid Law, the City has any discretion to waive a stated requirement for “good reason.”

DISCUSSION

When a petitioner seeks to enjoin conduct in direct violation of a prohibitory law, it must demonstrate the following: “first, that the conduct violates a prohibitory law (ordinance or statute) or the constitution; second, that the injunction seeks to restrain conduct, not order it; and third, that the plaintiff has met the low burden of making a prima facie showing that he is entitled to the relief sought.” Yokum v. Pat O’Brien’s Bar, Inc., 2012-0217, pp. 8-9 (La.App. 4 Cir. 8/15/12), 99 So.3d 74, 81. Generally, “[i]n reviewing the denial of a preliminary or permanent injunction, an appellate court uses the abuse of discretion standard of review.” Smith v. Tsatsoulis, 2014-0742, p. 5 (La.App. 4 Cir. 1/14/15), 158 So.3d 887, 890. This deferential standard is “based upon the conclusion that the trial court committed no error of law....” Smith v. Brumfield, 2013-1171, p. 7 (La.App. 4 Cir. 1/15/14), 133 So.3d 70, 75.

This appeal calls for us to interpret Louisiana’s Public Bid Law, La. R.S. 38:2211 et seq. As it is a matter of statutory interpretation, our standard of review of the district court’s legal conclusion is de novo. Dynamic Constructors, L.L.C. v. Plaquemines Par. Gov’t, 2015-0271, p. 4 (La.App. 4 Cir. 8/26/15), 173 So.3d 1239, 1243.

^Louisiana’s Public Bid Law governs the manner by which all contracts for public works are to be awarded. Id. at pp. 5-6, 173 So.3d at 1243-44. It was enacted in the interest of the taxpaying citizens, to protect against favoritism in contracting by public officials resulting in exorbitant and extortionate prices. Id., citing Haughton Elevator Div. v. State Div. of Admin., 367 So.2d 1161, 1164 (La.1979); Concrete Busters of Louisiana, Inc. v. Board of Comm’rs of the Port of New Orleans, 10-1172, p. 4 (La.App. 4 Cir. 2/2/11), 69 So.3d 484, 486. As such, it is “a prohibitory law founded on public policy,” and must be strictly construed. Id., quoting Broadmoor, L.L.C. v. Ernest N. Mortal New Orleans Exhibition Hall Auth. 04-0211, 04-0212, pp. 6, 8-9 (La.3/18/04), 867 So.2d 651, 656-57.

Relevant to the case at bar is La. R.S. 38:2212, which provides:

A. (1) All public work exceeding the contract limit as defined in this Section, including labor and materials, to be done by a public entity shall be advertised and let by contract to the lowest responsible and responsive bidder who had bid according to the bidding documents as advertised, and no such public work shall be done except as provided in this Part.
(2) The term “bidding documents” is defined in R.S. 38:2211(A).
B. (1) The provisions and requirements of this Section and those stated in the bidding documents shall not be waived by any entity.

La. R.S. 38:2212 (emphasis added).

“ ‘Bidding documents’ means the bid notice, plans and specifications, bid form, bidding instructions, addenda, special provisions, and all other written instruments prepared by or on behalf of a public entity for use by prospective bidders on a public contract.” La. R.S. 38:2211(A)(2).

IfiThus, according to the plain language of the statute, the provisions and requirements stated in the City’s Invitation to Bid are not waivable.

Notwithstanding these provisions, the City maintains that in choosing to disregard the provision in the Invitation to Bid directing bidders to include the Proposal Number on the front of the bid envelope, it did not waive a requirement, but rather made a reasonable, good-faith interpretation of an unclear term in its bidding documents.

We disagree. Applying the plain language of the Public Bid Law, we find that the City did not have the discretion to waive the provision in its Invitation to Bid which directed bidders to include the Proposal Number on the front of the bid envelope. We also find that the identification of the Proposal Number and the instruction to include the Proposal Number were unambiguous. The Invitation to Bid clearly identified the Proposal Number at the top of the document, the same page which contained the instruction that it must be included on bid envelopes. For this reason, we find the City’s reliance on Clement v. St. Charles Par., 524 So.2d 86 (La.App. 2 Cir.1988), unavailing. In that case, the Second Circuit held that an agency’s “reasonable, good faith interpretation of its own specifications should not be disturbed by a court whose views might be different.” Id. at 89. Clement is distinguishable because in that case the agency was called upon to interpret an 17ambiguous instruction. The same cannot be said in this case, where the instruction to include the Proposal Number, on the same page and six inches below the number identified as the Proposal Number, was very clear and unambiguous.

We have also considered TKTMJ’s argument that the Proposal Number is waiva-ble because it is not a “requirement” of the bidding documents as set forth in La. R.S. 38:2212(B). That statute provides in part:

(2) Any public entity advertising for public work shall use only the Louisiana Uniform Bid Form as promulgated in accordance with the Administrative Procedure Act by the division of administration, office of facility planning and control. The bidding documents shall require only the following information and documentation to be submitted by a bidder at the time designated in the advertisement for bid opening: Bid Security or Bid Bond, Acknowledgment of Addenda, Base Bid, Alternates, Signature of Bidder, Name, Title, and Address of Bidder, Name of Firm or Joint Venture, Corporate Resolution or written evidence of the authority of the person signing the bid, and Louisiana Contractors License Number, and on public works projects where unit prices are utilized,, a section on the bid form where the unit price utilized in the bid shall be set forth including a description for each unit; however, unit prices shall not be utilized for the construction of building projects, unless the unit prices and them extensions are incorporated into the base bid or alternates. (Emphasis added.)

TKTMJ contends that the foregoing suggests that the non-waivable require-, ments of the bidding documents are limited to the exclusive list of items set forth in the above provision, and a public entity may impose no further non-waivable requirements upon bidders.

However, we note that the broad, mandatory non-waiver language of La. R.S. 38:2212(B)(1) is not limited to the statutory requirements of 38:2212(B)(2). Rather, it states that “[t]he provisions and requirements of this Section and those stated in the bidding documents shall not be waived by any entity.”' La‘. R.S. 38|2212(B)(1) (emphasis added). Thus, even if we were to adopt the view that the non-waivable requirements of the bidding documents are limited to those specifically listed in 38:2212(B)(2), that does not negate the fact that under La. R.S. 38:2212(B)(1), any other provisions stated in the bidding documents are also non-waivable. In the case sub judice, the Invitation to Bid clearly provided that the bid envelope must contain the Proposal Number. TKTMJ’s and Roubion’s did not. Construing the Public Bid Law strictly (as we must), TKTMJ’s and Roubion’s bids are non-responsive.

We acknowledge that this analysis results in the lowest bidders being rejected on a technicality, with the unfortunate consequence that the City may have to incur additional expense to complete this public work. However, we are constrained by the statute as written, and we recognize that the trend of the numerous revisions to the Public Bid Law and to case law interpreting it has been to limit the discretion of public entities reviewing bids in order to ensure a fair and level playing field for all bidders. As the Louisiana Supreme Court has stated, “[t]he language of .., 38:2212(A)(l)(b) is clear and unambiguous: when a public entity elects to place certain requirements in its advertisements for bids and on its bid forms, that entity is bound by those requirements and may not choose to waive them at a later date.” Hamp’s Const., L.L.C. v. City of New Orleans, 2005-0489, p. 7 (La.2/22/06), 924 So.2d 104, 109, quoting Broadmoor, L.L.C. v. Ernest N. Mortal New Orleans Exhibition Hall Auth., 04-0211 (La.3/18/04), 867 So.2d 651, 657. “The public entity does not have the discretion to determine, after bids have been submitted, whether a requirement is substantive or non-substantive, waivable or non-waivable. Once the public entity establishes a. requirement, that requirement must be uniformly followed by all bidders.” Id. at pp. 10-11, 924 So.2d at 111.

We are aware 'that it has been suggested that the 2008 amendments to the Public Bid Law legislatively overruled the broad non-waiver rule of Hemp’s and cases following it. See Phylway Constr., LLC v. Terrebonne Par. Consol. Gov’t, 13-1589 (La.App. 1 Cir. 9/5/14), 153 So.3d 516, 523-24, writ denied, 14-2677 (La.3/13/15), 161 So.3d 462 (Kuhn, J., dissenting). While we recognize the appeal of this argument, the fact is that limiting the substantive requirements of the bidding documents to an exclusive list does not necessarily negate the rule that additional provisions cannot be waived. While there is some tension, they are not strictly mutually exclusive, and we again go back to the unequivocal language of La. R.S. 38:2212(B)(1), modified in the 2014 revisions and' explicitly approved in its current form, that the “provisions ... stated in the bidding documents [including the Invitation to Bid] shall not be waived.” In addition, we note that this Circuit, in a post-2008 amendment decision, has previously concluded that a public entity may supplement the La. R.S. 38:2212 requirements for the public bidding process with bidding instructions, which are then non-waivable. See Concrete Busters of La., Inc. v. Bd. of Comm’rs of the Port of New Orleans, 10-1172, pp. 9-10 (La.App. 4 Cir. 2/2/11), 69 So.3d 484, 489-90.

While under the present facts the result may well be that the City incurs additional expense to complete this public work, adopting a scheme in which a public entity can waive the provisions of its bidding documents at its discretion would create an opening for public entities to create and then waive provisions at whim in order to select a favored contractor, undermining the policy behind the Public Bid Law. We also note that this is not the first, instance of a bid being rejected because of an issue with the labeling of the bid envelope. See Barriere Constr. Co., LLC v. Terrebonne Par. Consol’d Gov’t, 99-2271 (La.App. 1 Cir. 2/18/00) 754 So.2d 1123 (affirming district court’s holding rejecting a bid which did not include the project name and number on the outside of the envelope, as required by the bid documents, stating that the public bid law had been changed to remove the discretion previously given to public to waive formal irregularities).

Accordingly, we find merit in Durr’s assignments of error, and conclude that the City’s waiver of a provision of its bidding documents is in violation of the Public Bid Law, and that all other requirements for the injunctive relief sought have been met. The district court therefore abused its discretion in denying injunctive relief, and thus the portion of the judgment of the district court denying injunctive relief enjoining and restraining the City of New Orleans from awarding the contract for the public work to TKTMJ or Roubion is hereby REVERSED, and the City is enjoined from awarding the contract for the public work to TKTMJ or |nRoubion. We remand this matter to the district court for proceedings consistent with this opinion.

REVERSED IN PART AND REMANDED.

JENKINS, J.,

dissents with reasons.

|i Because I find that TKTMJ was a responsive bidder, I respectfully dissent. The non-waiver provisions of Louisiana’s Public Bid Law, which are set forth in La. R.S. 38:2212(B)(1), are not applicable to this case.

It is well settled that the provisions and requirements of the Public Bid Law, as well as those provisions and requirements stated in the bid documents, shall not be waived by any public entity. La. R.S. 38:2212(B)(1); Dynamic Constr., L.L.C. v. Plaquemines Parish Gov’t, 2015-0271, p. 6 (La.App. 4 Cir. 8/26/15); 173 So.3d 1239, 1243-44, writ denied, 2015-1782 (La.10/30/05); 178 So.3d 562 (citing Hamp’s Constr., L.L.C. v. City of New Orleans, 2005-0489, pp. 1-2 (La.2/22/06); 924 So.2d 104, 105).

This appears to be an issue of first impression regarding the statutory interpretation of the “provisions” language in R.S. 38:2212(B)(1), in that Louisiana decisions have addressed the “requirement” language.

The term “bid documents” is defined in La. R.S. 38:2211(A)(2) as: (1) bid notice; (2) plans and specifications; (3) bid form; (4) bidding instructions; (5) addenda; (6) special provisions; and (7) all other written instruments prepared by or on behalf of a public entity for use by prospective bidders on a public contract.

The bid instructions in the City’s Invitation to Bid state as follows: [¡/‘Submission Package: EITHER: SEALED ENVELOPE bearing the Proposal Number & Louisiana State Contractor’s License Number OR ONLINE AT http://http:// purchasing.nola.gov/bsoAogin.jsp” AND “Failure to satisfy bid instructions may render bids non-responsive and remove them from the competition” (emphasis added).

The majority opinion asserts that the City cannot waive the first provision in its Invitation to Bid that directs the bidders to include the proposal number on the face of the sealed envelope. This provision, however, cannot be read in isolation. It is limited by the second provision in the Invitation to Bid. Read in conjunction with each other, the non-waivable provisions in the Invitation to Bid that relate to the inclusion of the proposal number are: (1) the proposal number be included on the face of the envelope; and (2) the failure to include the proposal number does not automatically render the bid non-responsive.

By awarding the project to TKTMJ, the City did not deviate from these provisions governing the inclusion of the proposal number in the bids. To the contrary, because the bid instructions do not make the inclusion of the proposal number mandatory, the non-waiver provisions of La. R.S. 38:2212(B)(1) do not apply.

The majority opinion states that the Invitation to Bid clearly requires that the bid envelope contain the proposal number. Its reliance on Barriere Constr. Co. v. Terrebonne Parish Consol. Gov’t., 1999-2271 (La.App. 1 Cir. 2/18/00); 754 So.2d 1123, is misplaced. In Barriere, the First Circuit held that the bidder’s failure to note the proposal number on the bid envelope, which was an express requirement under the “General Bidding Requirements” and the “Standard Specifications,” rendered the bid non-responsive.

Is Unlike Barriere, there is no express requirement in any of the City’s bid documents that the bidder’s sealed envelope bear the proposal number. In the City’s Invitation to Bid, the only required content for a bid is that it: (1) be typed or printed: (2) contain a copy of a corporate resolution if someone other than an officer signs for the bidder; (3) include the bidder’s license number on the face of the sealed envelope ; and (4) contain a bid bond.

In the City’s Plans and Specifications for the bid, the project is identified only as “Project No. 2012-FEMA-1C-2A” and “PW 17124.” The Plans and Specifications do not identify the proposal number and do not require that the sealed envelope bear the proposal number. Moreover, the Plans and Specifications state that bids containing omissions or irregularities of any kind “may be rejected.” Again, because the Plans and Specifications do not require the rejection of bids that omit the proposal number as non-responsive, the non-waiver provisions of La. R.S. 38:2212(B)(1) do not apply

The City’s Bid Form for this project also identifies the project only as “Project No. 2012-FEMA-1C-2A” and “PW 17124.” The Bid Form has no requirement that the sealed envelope bear the proposal number. Once more, the statute’s non-waiver provisions do not apply.

Because the inclusion of the proposal number is not expressly required under the provisions of the bid documents, the non-waiver provisions of La. R.S. 38:2212(B)(1) do not apply.

Durr argued that Attorney General Opinion No. 0351 supports its position. As with Barriere, that Opinion is distinguishable because in that case an addendum to the plans and specifications expressly required that the presumptive low bidder |4note on the outside of the bid envelope that it had received the addendum and that its bid reflected these changes.

Here, Durr does not specify any addenda, special provisions, or written instruments prepared by the City that require the identification of the proposal number on the sealed envelope. Hence, there are no bid documents that require the inclusion of the proposal number on the face of the sealed envelope containing TKTMJ’s bid package. Thus, there are no non-waivable defects in the bid that would preclude the City from approving TKTMJ as the lowest responsive bidder.

The Louisiana Supreme Court’s opinion in Harwp’s does not require a different conclusion. In Ham/p’s, the Supreme Court properly concluded that, because the City’s bid documents unambiguously required attachment of the Invitation to Bid to the submitted bid, a bidder’s failure to satisfy that requirement could not be waived. Ham/p’s, 05-0489, pp. 9-10; 924 So.2d at 110-11. Here, nothing in the bid documents expressly mandated the inclusion of the proposal number on the face of the bid envelope. As recognized by Judge Knoll in her concurring opinion in Hamp’s, this is not a waiver case because the bid documents and the law did not require that the bid envelope bear the proposal number. Hamp’s, 05-0489, p. 10; 924 So.2d at 111-12 (Knoll, J., concurring with extra reasons).

The City’s conclusion that TKTMJ was the lowest responsive bidder also fully comports with the policy considerations behind the non-waiver provision of the Public Bid Law.

When a public entity elects to place certain requirements in its bid documents, that entity is bound by those requirements and may not choose to waive them at a later date. Hamp’s, 2005-0489, p. 9; 924 So.2d at 110. This prohibition on waiver furthers the public interest because it prevents a public entity from employing favoritism by specifying certain requirements in its bid documents Land later changing those requirements to accept alternate or substitute proposals. Id.

These public policy concerns are not undermined here because the City did not unambiguously require a bidder to include the proposal number on the sealed envelope, and then waive that requirement. Giving effect to all relevant provisions in the Bid Invitation, this was not a requirement at all. Accordingly, there were no requirements to be waived for TKTMJ to be deemed a responsive bidder.

The majority opinion agrees that the Public Bid Law seeks to advance “the interest of the taxpaying citizens” by protecting against the award of contracts “involving exorbitant and extortionate prices.” Dynamic Constructors, 2015-0271, p. 4; 173 So.3d at 1243. The majority opinion’s statutory interpretation of the term “provision” in La. R.S. 38:2212(B)(1) undermines that policy consideration because it disqualifies the low bidder, TKTMJ, based on the faulty conclusion that the Bid Invitation required the inclusion of the proposal number on the bid envelope, which could not be waived by the City. This interpretation leads to an absurd result, in that it enjoins the City from awarding the contract to the lowest responsive bidder, thereby forcing the City to incur significant additional costs and requiring its citizens to endure an unnecessary delay in completion of an important public works project. La. State Bd. Of Med. Exam’rs v. Bertucci, 593 So.2d 798, 801 (La.App. 4th Cir.1992). The only reasonable interpretation is that the City properly awarded the contract to the lowest responsive bidder, TKTMJ.

For these reasons, I would find that the City properly decided that TKTMJ was the lowest responsive bidder under the Louisiana Public Bid Law, and affirm the trial court’s July 30, 2015 judgment denying Durr’s request for a preliminary injunction.

      . Also, on the Invitation to Bid document, the City notified bidders that "[f]ailure to satisfy instructions may render bids non-responsive and remove them from the competition.” Further, the Specifications attached to the Invitation to Bid stated that the "[fjailure to submit all requested information will make a bid irregular and subject to rejection.”

      . We also note that the case relied upon by the City for its contention that it has the discretion to interpret its bid documents in a way that effectively waives a requirement of its instructions, Haughton Elev. Div. v. State of La., through Div. of Admin., 367 So.2d 1161 (La. 1979), pre-dates the series of revisions to the Public Bid Law beginning in 1984 which explicitly codify the lack of discretion to waive bidding provisions and requirements, even formal ones.

      . Currently recodified at La. R.S. 38:2212(B)(1).

      . La. Acts 2008, No. 727.

      . La. Acts 2014, No. 759,

      . If the legislature intended to alter this broad rule, we invite it to clarify.

      .As acknowledged by Durr in its brief, the City has not yet reviewed Durr’s bid, nor received required post-bid documents, Accordingly, a reversal of the district court’s denial of a writ of mandamus ordering it to award the contract to Durr would be premature.

      . Although the word "shall” is mandatory, the word "may” is permissive. La.Code Civ. P. art. 5053. The provision regarding the proposal number, therefore, is not mandatory.

      . TKTMJ satisfied this requirement by including its contractor’s license number on its bid envelope.

      . The majority opinion erroneously states that failure to submit all requested information "will” make a bid irregular and subject to rejection.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Frank Frigge MCDONALD, Appellant
    No. 51,247-KA
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 2017
    CAREY J. ELLIS, III, Louisiana Appellate Project, Counsel for Appellant
    J. SCHUYLER MARVIN, District Attorney, ROBERT LANE PITTARD, Assistant District Attorney, Counsel for Ap-pellee
    Before BROWN, DREW, and LOLLEY, JJ.
   LOLLEY, J.

| /This criminal appeal arises from the 26th Judicial District Court, Parish of Bossier Parish, State of Louisiana. The defendant, Frank Frigge McDonald, pled guilty to attempted distribution of methamphetamine, and received an agreed-upon sentence of three years at hard labor. McDonald 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. For the following reasons, we grant the motion to withdraw and affirm McDonald’s conviction and sentence.

Facts

McDonald was charged by bill of information with distribution of methamphetamine, a Schedule II CDS, in violation of La. R.S. 40:967(A)(1). However, on April 18, 2016, pursuant to a plea agreement, McDonald appeared and pled guilty to the reduced charge of attempted distribution of methamphetamine. In exchange for the guilty plea, the state agreed to a sentence of three years at hard labor. The state also agreed to dismiss a separate charge in a different docket number and not to file a habitual offender bill against McDonald. The trial court informed him of his constitutional rights pursuant to Boykin v. Alabama, 396 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and McDonald stated that he understood and wished to waive his rights.

As a factual basis for the plea, the state noted that on July 22, 2014, McDonald sold methamphetamine to a confidential informant. The informant was wearing a camera which recorded the sale. McDonald agreed that these facts were substantially correct. After McDonald waived 1 ^sentencing delays, the trial court sentenced him to three years at hard labor, to be served consecutively to any other sentence, in accordance with the plea agreement.

Thereafter, the trial court granted McDonald’s pro se motion for appeal and the Louisiana Appellate Project was appointed to represent him. McDonald’s appellate counsel has now filed a motion to withdraw, together with an Anders brief, which alleges that he could find no nonfrivolous issues to raise on appeal. See Anders v. California, supra; State v. Jyles, 1996-2669 (La. 12/12/97), 704 So.2d 241; State v. Mouton, 1995-0981 (La. 4/28/96), 653 So.2d 1176; and, State v. Benjamin, 573 So.2d 528 (La. App. 4th Cir. 1990). The brief outlines the procedural history of the case and the agreement under which McDonald’s guilty plea was entered. The brief also contains “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, supra. In addition, the state filed a letter with this Court agreeing that there are no nonfrivolous issues to raise on appeal.

Appellate counsel also verified mailing copies of the motion to withdraw and the brief to McDonald, in accordance with An-ders, Jyles, Mouton, and Benjamin, supra. McDonald did not request the appellate record or file a pro se brief.

Discussion

A review of this record discloses no non-frivolous issues and no rulings which arguably support an appeal. The record shows that prior to entering his guilty plea, McDonald was properly advised of his Boykin rights, understood the plea agreement, and voluntarily pled guilty. Further, McDonald is precluded from seeking review of his sentence, because it was ^imposed in conformity with a plea agreement set forth in the record at the time of the plea. See La. C. Cr. P. art. 881.2; State v. Young, 1996-0195 (La. 10/15/96), 680 So.2d 1171. In addition, the record was reviewed for error patent, and no error patent was found.

Conclusion

For the foregoing reasons, we grant appellate defense counsel’s motion to withdraw and affirm the conviction and sentence of Frank Frigge McDonald.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Corenza Kendell KELLY, Jr., Appellant
    No. 51,246-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 5, 2017

      LOUISIANA APPELLATE PROJECT, By: Paula C. Marx, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, LAURA FULCO, REBECCA A. EDWARDS, Assistant District Attorneys, Counsel for Appellee
    Before DREW, MOORE, and STONE, JJ.
   MOORE, J.

_JjThe trial court granted the defendant’s pro se motion to correct an illegal sentence in accordance with Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and set aside the defendant’s life sentence without the benefit of parole, probation or suspension of sentence. Then, in the same proceeding, resentenced the defendant to life imprisonment without the benefit of probation or suspension of sentence. The defendant was not represented by counsel during this proceeding, and he now appeals. For the following reasons, we vacate the sentence imposed and remand to the trial court for further proceedings.

FACTS

On January 22, 2007, the defendant, age 15, went into Goody’s Beauty Supply in Shreveport armed with an RG .22 caliber revolver with intent to commit an armed robbery. While his two juvenile friends remained outside, he attempted to rob the cashier' who was too panicked to comply with his demands. The owner of the store, Ms. Maeung Ram Ellis, emerged from the back of the store. When she began pushing the defendant towards the door, the defendant shot Ms. Ellis in the head point blank. She died as a result of the gunshot wound.

The defendant confessed to police that he had shot Ms. Ellis. He was charged as an adult with second degree murder. Following a jury trial, he was convicted as charged and sentenced to life imprisonment without the benefit of parole, probation or suspension of sentence. He appealed the conviction and sentence, arguing that the evidence was insufficient to sustain his conviction and that his sentence was excessive. We affirmed both the 12conviction and sentence. State v. Kelly, 45,562 (La.App. 2 Cir. 8/11/10), 46 So.3d 229, writ denied, 10-2114 (La. 2/11/11), 56 So.3d 1001.

On September 7, 2012, the defendant filed a pro se motion to amend his sentence, citing La. C. Or, P. arts. 881 and 882 and Miller, supra. After the scheduled hearing was passed, the record indicates that on December 20, 2012, the defendant appeared without counsel and the court appointed counsel to represent him. The court minutes of March 25, 2013, indicate that the trial court granted the defendant’s motion to correct illegal sentence, and the state gave oral notice of its intention to file writs. However, the record contains no transcript or documentation indicating that the state filed a writ application with this court.

On April 1, 2013, the defendant, through counsel, filed a memorandum in support of his motion and order to correct illegal sentence, and the state filed an opposition on March 19, 2013.

On June 28, 2013, the defendant filed another pro se motion to correct illegal sentence citing Miller and requesting appointment of counsel. The motion was set for a hearing on November 20, 2013. However, the record does not indicate that a hearing was held on that date.

On September 19, 2014, the defendant filed a motion to stay resolution of his motion to correct illegal sentence pending a U.S. Supreme Court’s decision on whether Miller applies retroactively.

On May 4, 2016, the defendant filed another pro se motion to correct illegal sentence arguing that his sentence was illegal under Miller which, he argued, applied retroactively to his case by Montgomery v. Louisiana, 577 U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). He requested that hejjbe appointed counsel to assist him during resentencing and that he be provided funding for the cost of mitigation experts.

On June 20, 2016, the defendant appeared, without counsel, for a hearing on his motion. The state, without submitting evidence, suggested that the defendant be resentenced to life imprisonment, imposed without the benefit of probation or suspension of sentence, thus permitting parole eligibility. The trial court agreed, set aside the defendant’s original sentence and re-sentenced him to life imprisonment without the benefit of probation or suspension of sentence.

Following his resentencing, the defendant complained that he was entitled to counsel at the sentencing hearing. The trial court denied his request.

The defendant now appeals his newly imposed sentence.

DISCUSSION

By his first assignment of error, the defendant alleges that, contrary to the holding in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), he was sentenced to serve life in prison at hard labor without a sentencing hearing or consideration of the factors unique to juveniles in general and to him specifically as a 15-year-old offender. The defendant attacks the statutory scheme enacted by this state’s legislature in response to the Supreme Court decision in Miller. He argues that La. C. Cr. P. art. 878.1 fails to comply Lwith the requirements of Miller because it merely allows a youthful offender parole eligibility and not the right to parole. He argues that Art. 878.1 practically does nothing to alleviate the problem addressed in Miller because “Louisiana does not often, if ever, release people convicted of homicide on pardon or parole.” Mere access to the Parole Board for consideration of early release does not satisfy Miller, he claims, especially considering the strict parole requirements set forth in La. R.S. 15:774.4, including the requirement that a juvenile homicide defendant must serve at least 35 years of his sentence before he is eligible for parole.

The defendant also complains that the sentencing court failed to comply with Miller because it did not hold a hearing to consider mitigating factors unique to youthful offenders: Citing Garnett v. Wetzel, No. CV 13-3439, slip op., 2016 WL 4379244, (E.D. Pa. Aug. 17, 2016), the defendant notes that the court said that a sentencing court must consider the Miller factors when determining whether or not parole is suitable for an offender who committed homicide as a juvenile.

In opposition, the state contends that, following remand from the U.S. Supreme Court, the Louisiana Supreme Court in State v. Montgomery, 13-1163 (La. 6/28/16), 194 So.3d 606, directed that La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E) should be used to conduct re-sentencing hearings to determine whether prisoners who were sentenced prior to Miller should be granted or denied parole eligibility. The state points out that La. C. Cr. P. art. 878.1 does not give a resentenc-ing court the discretion to give a ^defendant entitled to resentencing under Miller any lesser sentence than life with parole eligibility, As such, the state argues that the defendant received the minimum sentence and any deficiencies in the defendant’s hearing should be considered harmless under La. C. Cr. P. art. 921.

In Miller, 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.” Miller, 132 S.Ct. at 2469. The Miller court relied heavily oh its recent opinions in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (invalidating the death penalty for all juvenile offenders under the age of 18), and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (life without parole sentences for non-homicide juvenile offenders violated the Eight Amendment’s ban on cruel and unusual punishment). Those cases “establish that children are constitutionally different from adults for purposes of sentencing” because “juveniles have diminished culpability and greater prospects for reform” and are thus “less deserving of the most severe punishments.” Graham, 560 U.S. at 68, 130 S.Ct. at 2026. Children have a “lack of maturity and an underdeveloped sense of responsibility,” leading to recklessness, impulsivity, and heedless risk-taking. Roper, 543 U.S. at 569, 125 S.Ct. 1183. They “are more vulnerable ... to negative influences and outside pressures,” including from their family and peers; they have limited “control] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. Ibid. Finally, it said that a child’s character is not as “well formed” as an adult’s; his traits are “less fixed” and his actions less I «likely to be “evidence of irretriev-abl[e] depravfity].” Id., at 570, 125 S.Ct. 1183.

The Miller court thus concluded:

We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Cf. Graham, 560 U.S. at 74, 130 S.Ct. at 2030 (“A State is not required to guarantee eventual freedom,” but must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation”). By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Because that holding is sufficient to decide these cases, we do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Roper, 543 U.S. at 573, 125 S.Ct. 1183; Graham, 560 U.S. at 67-68, 130 S.Ct. at 2026-2027. Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.

Miller, at 2462-2469.

Following Miller, the Louisiana legislature enacted La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4(E).

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 |7the 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.

If a juvenile murder defendant is granted parole eligibility, the following conditions, set forth in La. R.S. 15:574.4(E), must be met before a defendant is eligible for parole:

E. (1) Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment for a conviction of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1) who was under the age of eighteen years at the time of the commission of the offense shall be eligible for parole consideration pursuant to the provisions of this Subsection if a judicial determination haá been made that the person is entitled to parole eligibility pursuant to Code of Criminal Procedure Article 878.1 and all of the following conditions have been met:
(a) The offender has served thirty-five years of the sentence imposed.
(b) The offender has not committed any major disciplinary offenses in the twelve consecutive months prior to the parole hearing date. A major disciplinary offense is an offense identified as a Schedule B offense by the Department of Public Safety and Corrections in the Disciplinary Rules and Procedures for Adult Offenders.
(c) The offender has completed the mandatory minimum of one hundred hours' of prerelease programming in accordance with R.S. 15:827.1.
(d) The offender has completed substance abuse treatment as applicable.
(e) The offender has obtained a GED certification, unless the offender has previously obtained a high school diploma or is deemed by a certified educator as being incapable of obtaining a GED certification due to a learning disability. If the offender is deemed incapable of Isobtaining a GED certification, the offender shall complete at least one of the following:
(i) A literacy program.
(ii) An adult basic education program.
(iii) A job skills training program.
(f) The offender has obtained a low-risk level designation determined by a validated risk assessment instrument approved by the secretary of the Department of Public Safety and Corrections.
(g) The offender has completed a reentry program to be determined by the Department of Public Safety and Corrections.
(2) For each offender eligible for parole consideration pursuant to the provisions of this Subsection, the board shall meet in a three-member panel, and each member of the panel shall be provided with and shall consider a written evaluation of the offender by a person who has expertise in adolescent brain development and behavior and any other relevant evidence pertaining to the offender.
(3) The panel shall render specific findings of fact in support of its decision.

In Montgomery, 136 S.Ct. at 736, the Supreme Court held that Miller announced a substantive change in the law, and thus states were required to apply its holding retroactively in state collateral proceedings. Noting concerns that retroactive application of Miller would place an undue hardship on states, it said:

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.)
| 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.

On remand, the Louisiana Supreme Court in 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 re-sentencing hearings for juvenile homicide defendants sentenced prior to Miller. State v. Montgomery, 13-1168 (La. 6/28/16), 194 So.3d 606.

Both this court and the Third Circuit Court of Appeal have 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. In State v. Fletcher, 49,303 (La.App. 2 Cir. 10/1/14), 149 So.3d 934, 942, 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), we found no error in the trial court’s denial of the defense motion to declare the statutes unconstitutional. Miller could have categorically declared that no juvenile murderer shall be imprisoned without benefit of parole, but it specifically refused to do so. In so doing it recognized that the circumstances of some murders and the characters of some juvenile killers warrant imposition of the harshest possible penalty. Hence, following Miller’s directive against mandatory life-without-parole sentences for juvenile killers, our legislature devised a sentencing procedure which would require that a trial court sentencing a youthful offender review all pertinent factors before determining whether parole eligibility was warranted. By its very application to only murderers under the age of 18, | mthe provisions of La. C. Cr. P. art. 878.1 mandating a sentencing hearing where the defense has an opportunity to present mitigating factors—including the defendant’s age as an important part of his social history—satisfy Miller’s requirement that mitigating factors favoring a juvenile killer be heard in a proceeding held for that purpose.

In State v. Dense, 15-713 (La.App. 3 Cir. 2/24/16), 185 So.3d 335, writ denied, 2016-0546 (La. 3/13/17), 185 So. 3d 335, the defendant, a juvenile at the time he murdered his foster mother, pled guilty to second degree murder and was sentenced by agreement of the parties to life imprisonment with parole eligibility after the defendant served 35 years of his sentence. On appeal, the defendant alleged that La. C. Cr. P. art. 878.1 was unconstitutional in light of Miller because Art. 878.1 still provides for an automatic sentence without parole, probation or suspension of sentence, with parole eligibility only occurring after a defendant serves 35 years of his sentence. The defendant further asserted, as in the case sub judice, that because “Louisiana does not often, if ever, release people convicted of homicide on pardon or parole” that mere access to the Parole Board for consideration of parole failed to comply with Miller, The defendant also complained that he should have been granted a sentencing hearing to‘|nconsider the factors set forth in Miller and that the failure to conduct such a hearing was unconstitutional.

The court found no merit to the defendant’s claims. The court noted that in Fletcher, supra, this court upheld the constitutionality of La. C. Gr. P. art. 878.1 and La. R.S. 15:574.4(E). In response to the defendant’s argument that the mere possibility of parole was inadequate to satisfy Miller, the court explained:

The Attorney General also argues that the argument raised by Defendant—the mere possibility of parole is not sufficient to satisfy Miller—has already been rejected in principle by the Louisiana Supreme Court. In State v. Shaffer, 11-1756 (La. 11/23/11), 77 So.3d 939, the supreme court addressed the United States Supreme Court case of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), in which the Supreme Court held that a juvenile who commits a non-homicide offense cannot be sentenced to life without parole. After the Graham decision, Louisiana defendants who had been convicted of aggravated rapes committed when they were under the age of eighteen sought to have their life sentences set aside and to be resentenced. Shaffer, 77 So.3d 939. Rather than remand for resentencing, the Louisiana. Supreme Court simply amended the life sentences to delete the restriction on parole eligibility. Id. The Supreme Court clarified its holding as follows:
We reiterate that this court is not ordering relators released on parole. The determination of whether relators may be released on parole falls within the exclusive purview of the Board of Parole, charged with the duty of ordering parole “only for the best interest of society, not as an award of clemency.” La. R.S. 15:574.4.1(B). Access to the Board’s consideration will satisfy the mandate of Graham.

Id. at 943.

liaWe find that Garnett v. Wetzel, supra, cited by the defendant in support of his claim that the trial court was required to hold a resentencing hearing and consider the factors set forth in Miller, is distinguishable from the instant case and unpersuasive. In Garnett, the defendant filed a federal habeas petition requesting a resen-tencing hearing in light of Montgomery and Miller, and the federal district court remanded the case to state court to conduct a Miller hearing. The federal court also noted that in Pennsylvania, a sentencing judge is required to set both the minimum and maximum sentences to which a defendant may have to serve. However, the sentencing statute in effect at the time the defendant was originally sentenced had been declared unconstitutional, and the legislature had failed to enact a new sentencing statute for juvenile homicide defendants who committed their crimes prior to 2012. Thus, the state faced a dilemma as to how to resentence the defendant and similarly situated offenders. The court also appeared to criticize the decision of some sentencing courts to set a maximum sentence of life imprisonment, but leave to the Parole Board the task of determining whether a defendant should be granted parole pursuant to Miller.

The defendant’s claims that Louisiana’s sentencing scheme for juvenile homicide defendants fails to comply with Miller run counter to the [ 1splain language of Miller. As noted above, the holding of Miller was that sentencing schemes which require mandatory life without parole sentences for juvenile homicide defendants violate the Eighth 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, supra at 2469.

Louisiana promptly and sufficiently addressed Miller (and subsequently, Montgomery) by passing 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, supra at 736, Louisiana also enacted La. R.S. 16:574.4(E), which permits a juvenile homicide defendant who has been sentenced to life with parole eligibility, the opportunity to seek parole after serving at least 35 years of his or her sentence, among other requirements. Additionally, as explained in Doise, supra, mere access to the Parole Board for consideration of parole meets the requirements of Miller.

As for the defendant’s argument that the trial court erred by failing to allow him to present mitigating evidence, Miller did not impose such a requirement in eases where parole eligibility was permitted. In Miller, the |i4Supreme 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. See Miller, supra, 132 S.Ct. at 2463-69. 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. Id., at 2469. Notwithstanding this fact, La. C. Cr. P. art. 787.1 provides that “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.” Nonetheless, despite the fact the defendant was not given the opportunity to present mitigating evidence per La. C. Cr. P. art. 787.1, he received the minimum sentence available. Accordingly, the error is harmless.

We therefore conclude that this assignment of error lacks merit.

By his second assignment of error, the defendant alleges that the trial court erred in denying him assistance of counsel at sentencing in violation of the United States and Louisiana Constitutions. He maintains that his sentence must be vacated, and he must be resentenced because he was unrepresented by counsel during his resentencing in violation of the Sixth Amendment of the United States Constitution and Article I, § 13 of the Louisiana Constitution.

The state concedes that the defendant was not represented by counsel at his sentencing hearing on June 20, 2016, but should have had the benefit of counsel. However, it maintains that the defendant received the minimum sentence available, and that vacating his sentence and remanding for |,¿resentencing, subjects the defendant to receiving the original, and harsher, sentence of life without parole. The state, citing State v. Dahlem, 14-1655 (La. 3/15/16), 197 So.3d 676, 680, reh’g denied (5/2/16), argues that the absence of counsel at the defendant’s resentencing hearing was not a “complete denial of counsel” so as to amount to a structural error, and, because the defendant received the minimum sentence, he cannot show prejudice.

The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defense.” Similarly, La. Const, art. I, § 13 states that “[a]t each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment.” Pursuant to the Sixth Amendment, a defendant has a right to counsel at every critical stage of criminal proceedings, including a resentencing hearing. State v. Joseph, 14-1188 (La.App. 3 Cir. 5/6/15), 164 So.3d 389, 391. Unless a defendant has made a knowing and intelligent waiver of his right to counsel, any sentence imposed in the absence of counsel is invalid and must be vacated. State v. Collinsworth, 452 So.2d 285 (La. App. 2 Cir. 1984) (citing State v. Williams, 374 So.2d 1215 (La. 1979), and State v. White, 325 So.2d 584 (La. 1976)).

The U.S. Supreme Court has stated that the complete denial of counsel (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)) and adjudication by a biased judge (Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927)) constitute structural defects in a trial which cannot be evaluated as harmless error. Other errors which occur during the | ^course of the trial are considered “trial errors” and are subject to a harmless error analysis. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

There can be no doubt that the resen-tencing of a defendant, especially in a case such as this where a sentencing court is tasked with determining whether or not a juvenile homicide defendant should spend the remainder of his life in prison without any possibility for parole, constitutes a “critical stage of the criminal proceedings.” As such, the defendant should have been represented by counsel. This right is not vitiated by the fact the defendant received the best sentence possible. Such a structural error is not subject to harmless exror analysis.

Accordingly, the defendant’s sentence is vacated and the matter remanded to the trial court for resentencing.

By his third assignment of error, the defendant maintains that a life sentence is excessive for this 15-year-old offender, and in his final assignment of error, he contends that he should have been resen-tenced to the lesser responsive verdict of manslaughter because the mandatory sentencing scheme under which he was originally sentenced was found to be unconstitutional in Miller. Because we are vacating the defendant’s sentence and remanding to the trial court for resentencing, these two assignments are pretermitted.

CONCLUSION

For the reasons stated above, the defendant’s sentence is vacated and the matter remanded to the trial court for further proceedings in accordance with this opinion.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . 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 die 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.

      . The court concluded that, contrary to the defendant’s claim, the legislature did not have to amend the second degree murder statute itself for sentencing of juvenile killers. Life without parole is still a constitutionally acceptable sentence for adult killers and it is not a prohibited sentence for all juvenile killers. By adding a new statute pertaining to parole eligibility for juvenile killers which is to be read in conjunction with the first and second degree murder statutes, the legislature provided a statutory solution to the Miller requirements. If the trial court imposes a life sentence with parole eligibility, La. R.S. 15:574.4(E) provides conditions which must be satisfied before the defendant can apply to the parole board for parole consideration. Id.

      . The Doise court further stated:
      In his brief, the Attorney General argues that he fails to see how life with the possibility of parole is a permissible alternative for juveniles who have committed non-homicide offenses but is not a permissible alternative for juveniles who have committed homicide offenses. We agree. Under Graham, a juvenile who commits a non-homicide offense punishable by life imprisonment must be eligible for parole. Graham, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825. However, as the Louisiana Supreme Court held in Shaffer, the juvenile may not be released on parole unless the Board of Parole decides to release him. Shaffer, 77 So.3d 939. Thus, in reality, a juvenile who commits a non-homicide offense punishable by life in Louisiana is only promised the possibility of being released on parole. It stands to reason that a juvenile who commits a homicide offense punishable by life imprisonment should be granted no greater relief. As the Attorney General points out, if the mere possibility of being released on parole is sufficient to satisfy the mandatory parole eligibility established in Graham for juvenile non-homicide offenders, the mere possibility of being released on parole is more than sufficient to satisfy the chance of parole eligibility after a hearing established in Miller for juvenile homicide offenders. As the Louisiana Supreme Court held in Shaffer regarding Graham, the mere access to the Board of Parole's consideration satisfies the mandates of Miller. Doise, supra at 342.