author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Eric Dale MICKELSON, Appellant
    No. 50,940-KA
    Court of Appeal of Louisiana, Second Circuit.
    December 14, 2016

      LOUISIANA APPELLATE PROJECT, BY: Peggy J. Sullivan, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, WILLIAM J. EDWARDS, TOMMY J. JOHNSON, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   WILLIAMS, J.

hThe defendant, Eric Dale Mickel-son, was charged by a grand jury indictment with first degree murder, a violation of LSA-R.S. 14:30. A jury returned a unanimous verdict of guilty as charged and recommended the death penalty; the trial court formally sentenced the defendant to death. Following a direct appeal to the Louisiana Supreme Court, the defendant’s conviction and sentence were reversed and the matter was remanded to the trial court for a new trial. State v. Mickelson, 2012-2539 (La. 9/3/14), 149 So.3d 178 (“Mickelson I”).

On remand, a second trial by jury was held, and the defendant was found guilty as charged of first degree murder. Following the penalty phase of the trial, the jury recommended life imprisonment; the defendant was formally sentenced to serve life in prison at hard labor, without the benefit of parole, probation or suspension of sentence. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 12, 2007, the victim, 86-year-old Charles Martin, was reported missing. A subsequent investigation led Shreveport police officers to the residence of Susan Glover, a/k/a Beverly Suzanne Arthur (“Arthur”). When officers arrived at the residence owned by Arthur’s mother, they observed the victim’s vehicle in the driveway and the defendant, Eric Dale Mickel-son, standing in the front yard. A search of the defendant’s person revealed that he was in possession of the victim’s wallet and driver’s license. Arthur’s mother granted permission to search the residence. During the search, the officers found some coins that had been taken from the victim’s 12home and a portion of a check bearing the victim’s signature. Arthur and the defendant were transported to the police station.

In a statement to law enforcement officers, Arthur related that the defendant had killed the victim, dismembered his body and disposed of the body parts in more than one location. Arthur was unable to lead the officers to the location(s) of the remains of the victim. However, she stated that she and the defendant had gone to some property owned by the defendant’s family.

In his statement to law enforcement officers, the defendant admitted that he broke into the victim’s home, killed the victim and stole several items from the home to fund his cocaine addiction. Further, the defendant stated that he and Arthur had taken the victim’s body to some property owned by his family, dismembered the body and disposed of the remains in several different locations. The defendant led officers to four separate locations where various parts of the victim’s body were recovered.

A Caddo Parish grand jury returned an indictment charging the defendant with first degree murder. Following a trial, the jury returned a unanimous verdict, finding the defendant guilty as charged of first degree murder. Following the penalty phase of the trial, the jury recommended the death penalty; the trial court formally sentenced the defendant to death. Following a direct appeal, the Supreme Court found that the trial court had committed reversible error in denying the defendant’s challenge for cause with regard to a prospective juror. The Court reversed the defendant’s | ¡¡conviction and sentence, and remanded this matter for a new trial.

Mickelson I, supra.

Following a new trial, the defendant was again found guilty as charged of first degree murder. After the penalty phase of the trial, the jury recommended a life sentence, Consequently, the defendant was sentenced to serve life imprisonment at hard labor, without the benefit of parole, probation or suspension of sentence.

The defendant now appeals.

DISCUSSION

The defendant contends the trial court erred in denying his challenges for cause with regard to ten prospective jurors. He argues that he exhausted all of his peremptory challenges; therefore, prejudice is presumed. More specifically, the defendant argues that the trial court erred in denying his challenges for cause with regard to the following prospective jurors: Tamika Atkins, Dameoyn Woodley, Alexis Sarkozi, Belinda Moentman, Stephen Smith, Tumekia Wilson, Smitty Brown, Louis Guiden and Michelle Wilson. The defendant makes a “reverse-Wi/Aer-spoon” complaint, arguing that because Atkins, Woodley, Sarkozi, Moentmann, Smith, Michelle Wilson and Guiden “indicated an inability to consider mitigation or a life sentence,” the challenge for cause should have been granted. The defendant also argues that Tumekia Wilson and Smitty Brown stated that “dismemberment [was] a reason to impose the death penalty”; therefore, his challenge for cause also should have been granted as to those prospective jurors.

In State v. Dunn, 2001-1635 (La. 11/1/02), 831 So.2d 862, our Supreme Coui’t explained Witherspoon and reverse-Wiffe-erspoon complaints as follows:

The proper standard for determining when a prospective juror may be excluded for cause because of his views on capital punishment is whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ [I]n a ‘reverse-Witherspoon’ context, the basis of the exclusion is that the juror ‘will not consider a life sentence and ... will automatically vote for the death penalty under the factual circumstances of the case before him[,]’ If a prospective juror’s inclination toward the death penalty would substantially impair the performance of the juror’s duties, a challenge for cause is warranted.

Id., at 927 (internal citations omitted).

However, the Court has consistently held that where the jury did not recommend the death penalty, the defendant is insulated from the death penalty, and there is, therefore, no valid Witherspoon complaint. State v. Edwards, 406 So.2d 1331 (La. 1981), cert. denied, 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982); State v. George, 371 So.2d 762 (La. 1979); State v. Turner, 37,162 (La.App. 2 Cir. 10/29/03), 859 So.2d 911, writ denied, 2003-3400 (La. 3/26/04), 871 So.2d 347.

In the instant case, the jury recommended life imprisonment at hard labor, without the benefit of parole, probation or suspension of sentence. Therefore, the defendant has no valid Witherspoon or reverse-Witherspoon complaint. This assignment lacks merit.

The defendant also challenged for cause prospective juror Donna Crane. During her initial voir dire, Crane stated that she would consider all of the mitigating circumstances, however, she “would like to hear [the defendant’s] side” prior to voting to impose a sentence. Thereafter, defense | ^counsel explained that the defendant was not required to present any evidence at either phase of the trial. Crane replied, “I’d think you’d want to present your side of the story[.]” Thereafter, the trial court provided the following instruction to the panel of prospective jurors:

In my initial instructions, I informed you that—and I want to remind you of this, and everyone, the defendant starts this with a clean slate, and the Defense doesn’t have to do anything. They don’t have to call any witnesses, they don’t have to put on any evidence, they have no burden of proof. The entire burden is on the State to prove beyond a reasonable doubt in both phases of a first degree murder trial.

The defendant challenged Crane for cause, stating, “I believe she is shifting the burden [t]o require the Defense to put on evidence, where that’s not required by law.” Crane was called for individual voir dire, and the following exchange occurred: ⅜ ⅜ ⅜

[State]: I think the Court has instructed you that the Defense has no legal duty to put on any evidence anytime.
[Crane]: Right.
[State]: Would you accept that as the law?
[Crane]: Yes, sir.
⅜ ⅜ ⅜ ‡
[Defense Counsel]: [I]f the Defense were to put on no evidence at a penalty phase[,] at that point ... would you impose a death sentence because the Defense presented no mitigating evidence, because you found the person guilty of first degree [murder]?
[Crane]: No, ma’am.
[Defense Counsel]: Would you hold it against the Defense if they didn’t put on mitigation?
[Crane]: No, ma’am.
* ⅜ *

|fiThe defendant continued to challenge Crane for cause, stating, “[T]here was a huge hesitation when she was asked the question. I don’t think it’s clear that she would not shift the burden. I mean, there was probably a ten second, twelve second hesitation when she was asked that question.” The trial court denied the challenge for cause, stating:

I do agree there was hesitation. I didn’t count the number of seconds, but I wrote, would you require the Defense to put on any mitigation evidence, and hesitated, she said, not necessarily.
But in response to your questions, there was no hesitation, and your questions were more pointed. If the Defendant puts on zero evidence, and you did your whole first degree murder, no legal defenses[,] would you impose the death penalty because they put on no mitigation.
She immediately said no. In fact, [she] interrupted you before you were through asking the question. She said, no.
Would you hold it against the Defense if no mitigation evidence was presented?
And she said, no, ma’am. Her hesitation may have something to do with the fact that she’s exhausted because it’s 7:15 p.m., and she’s been here since 1:15. So, I’m not going to grant the challenge for cause for Ms. Crane.
* * *

A trial court is vested with broad discretion in ruling on challenges for cause and its rulings will be reversed only when a review of the voir dire record as a whole reveals an abuse of discretion. State v. Tucker, 2013-1681 (La. 9/1/15), 181 So.3d 590; State v. Odenbaugh, 2010-0268 (La. 12/6/11), 82 So.3d 215. A court’s evaluation of the attributes required to qualify a prospective juror is entitled to great weight. Therefore, the court’s exercise of the wide discretion that determination requires will not be set aside unless it is arbitrary and unreasonable. State v. Webb, 364 So.2d 984 (La. 1978).

|7A prospective juror’s responses during voir dire cannot be considered in isolation. A challenge for cause should be granted, even when a prospective juror has declared his or her ability to remain impartial, if the juror’s responses, as a whole, reveal facts from which bias, prejudice or inability to render a judgment according to the law may be reasonably inferred. Mickelson I, supra; State v. Frost, 97-1771 (La. 12/1/98), 727 So.2d 417; State v. Hallal, 557 So.2d 1388 (La. 1990). Nevertheless, a refusal to disqualify a prospective juror on grounds that he or she is biased will not constitute reversible error or an abuse of discretion if, after further inquiry or instruction (frequently referred to as “rehabilitation”), the prospective juror demonstrates a willingness and ability to decide the case according to the law and the evidence. Mickelson I, supra; State v. Jacobs, 99-1659 (La. 6/29/01), 789 So.2d 1280.

We find no error in the trial court’s denial of the challenge for cause with regard to Crane. The record reveals that, once the relevant law was explained to her, she expressed her understanding that the defendant was not required to present any evidence during either phase of the trial. Thereafter, Crane indicated that she would follow the law and that she would not hold it against the defendant if he did not present evidence during the guilt or penalty phase. Therefore, we find that the defendant failed to prove that Crane was not impartial or that she would not accept the law as given to her by the trial court. This assignment is without merit.

Motion to Change Plea

The defendant contends the trial court erred in denying his request to change his plea from “not guilty” to “not guilty and not guilty by reason of insanity.” He argues that he made a showing of mental illness and changing Rhis plea would not have delayed the proceedings. The defendant also argues that the trial court erred in concluding that the motion to change his plea was merely a delay tactic. Further, the defendant asserts that the trial court “invaded the province of the jury” because the determination of whether a defendant knew right from wrong at the time of the offense lies solely with the jury.

A defendant may withdraw a plea of “not guilty” and enter a plea of “not guilty and not guilty by reason of insanity,” within 10 days after arraignment. LSA-C.Cr.P. art. 561. When the change of plea is sought after the 10-day period, the defendant must show that good cause exists to justify the change in plea and that the motion is not a dilatory tactic to achieve a strategic advantage. State v. Miller, 2005-1826 (La. 6/29/07), 964 So.2d 911; State v. Mercer, 564 So.2d 783 (La. App. 2d Cir. 1990). To demonstrate “good cause,” the defendant must produce some “indicia of insanity,” or some evidentiary basis to warrant the change. State v. Miller, supra; State v. Simmons, 2013-258 (La.App. 5th Cir. 2/26/14), 136 So.3d 358, writ denied, 2014-0674 (La. 10/31/14), 152 So.3d 151.

LSA-C.Cr.P. art. 561 does not require the defendant who moves to change his plea to show that he can prove his insanity defense at trial, as that is a factual question to be determined by the finder of fact at trial. State v. Miller, supra; State v. Mercer, supra. A defendant is permitted to change his plea as long as a non-frivolous insanity defense exists. State v. Miller, supra. Once the 10-day time period expires, the defendant may file a motion to change his plea at any time prior to the commencement of trial. However, the defendant’s burden of showing good cause for a change of plea increases 13each day that his trial date nears. State v. Miller, supra; State v. Mercer, supra.

In the instant case, the defendant waived arraignment and entered a plea of “not guilty” on September 7, 2007. Thereafter, the defendant was tried and convicted, the conviction and sentence were reversed, and the matter was remanded. Following remand and numerous motions and delays—including a number of motions for continuances—the defendant filed the motion to withdraw his plea of “not guilty” and enter a plea of “not guilty and not guilty by reason of insanity” on September 11, 2015 (34 days before the new trial was scheduled to commence). Here, the defendant must show that good cause exists to justify the change in plea and that the motion is not a dilatory tactic to achieve a strategic advantage.

Following a hearing, the trial court denied the defendant’s motion to change his plea, finding that the defendant had failed to establish that he had good cause to change his plea. The court also found that the defendant’s motion to change his plea was a dilatory tactic. The court stated:

In the present case, defense counsel has only provided the Court with medical testimony given at Defendant’s original trial. They have not provided any evidence demonstrating [the defendant] has a history of mental illness or, for that matter, has ever been diagnosed with a particular mental disease. Although defense keeps referring to additional medical evidence regarding [the defendant’s] mental state, they have failed to provide it.
Defendant was arrested in 2007 and convicted in 2011. Defense has had ample time to collect and present new evidence to the Court; however, they have failed to do so. This failure to present new evidence leads to the second distinguishing factor: the defense appears to be using this Motion as a dilatory tactic. ⅜ ⅜ ⅜
[D]efendant is being retried for First Degree Murder. Defense could have brought the Motion to Change Plea in his original |intrial. Defense could have brought the Motion along with the approximately 155 other motions they have filed since Defendant’s conviction was reversed and remanded. This did not occur. Instead, Defendant waited until one month before his second trial, notably after their motion for a continuance was denied, to file this Motion.
The Court concludes that Defendant lacks good cause to change his plea. The evidence provided by defense fails to provide some evidentiary basis for the insanity plea. Namely, defense has failed to provide any evidence to contradict a statement by their own witness, Dr. Ag-harkar, stating that the mental health defense will not work. Finally, based on the conduct of the defense, it appears that this Motion is a dilatory tactic intended to force the State into requesting a continuance after defense’s own motion for a continuance was denied.
* * []

In State v. Taylor, 254 La. 1051, 229 So.2d 95 (1970), the coroner, who was not a psychiatrist, testified that, at the time of the offense, the defendant had schizophrenia, was experiencing a psychotic episode and did not have insight into what was happening at the time of the offense. Additionally, the sheriff testified that the defendant’s former cellmate had reported that the defendant was “having delusions.” The Louisiana Supreme Court found that the trial court erred in denying the defendant’s motion to change his plea to not guilty and not guilty by reason of insanity. The Court reversed the defendant’s conviction and remanded the matter for a new trial.

In State v. Delpit, 341 So.2d 876 (La. 1977), the evidence showed that the defendant functioned at the “lower end of the scale for mental retardation,” had received psychiatric treatment as a child and was currently undergoing psychiatric treatment. The Court held that the supporting 1 ^documentation, in addition to the defendant’s current psychiatric treatment, was sufficient to justify the change in plea.

In State v. Miller, supra, the defendant presented evidence that he had undergone psychiatric treatment from the age of five years old to 14 years-old. Also, the defendant’s mother testified that he had “behavior problems” and that he had attempted suicide on three occasions. Further, months before he committed the quadruple homicide, the defendant had been committed to a mental institution for medical management of a depressive illness and psychosis. Additionally, a psychiatrist testified that after the defendant committed the offenses, he experienced hallucinations. The Supreme Court found that the trial court erred in denying the defendant’s motion to change his plea to not guilty and not guilty by reason of insanity.

In State v. Mercer, supra, the defendant had been diagnosed with manic depressive disorder, for which he was taking medication at the time of the offense, and he had a history of admissions to mental health facilities. This Court found that the trial court erred in denying the defendant’s motion to change his plea to not guilty and not guilty by reason of insanity.

In the case at hand, as the trial court noted, this record is devoid of any evidence that the defendant was ever diagnosed with or received treatment for any mental illness. In support of his motion to change his plea, the defendant presented the prior testimony of Dr. Craig Beaver, a neurop-sychologist, and Dr. Shawn Agharkar, a forensic psychiatrist, both of whom testified during the penalty phase of the defendant’s first trial. Both Dr. Beaver and Dr. Agharkar testified that, prior to the defendant’s first trial, they met with him twice and reviewed his medical records. They testified that the defendant had schizoaf-fective disorder, basing their opinions on 112their observations that, during their interviews, the defendant had severe difficulties with inattention and lack of focus, inhibited impulse control, disorganization of thoughts and illogical thought processes. Additionally, Drs. Beaver and Agharkar testified that the defendant’s cocaine use enhanced his mental health issues, causing poor decision-making and the inability to appreciate consequences. Dr. Beaver testified that he “could not say” that the defendant did not know right from wrong at the time of the offense. However, Dr. Aghar-kar unequivocally testified that the defendant “knew right from wrong at the time of the crime” and stated that he had informed defense counsel that the defendant did not have a viable “mental health defense.”

As stated above, the defendant’s expert witnesses testified in 2011, during the penalty phase of his first trial. Unlike the defendants in the above-cited cases, this record is devoid of any evidence that this defendant had a history of mental illness or any mental health treatment prior to the commission of the offense. Although the defendant has been incarcerated for approximately nine years, and has been evaluated by mental health professionals, there is no evidence that he has ever undergone, or is currently undergoing, any treatment for any mental illness or defect. Dr. Agharkar testified that he had spoken to various members of the defendant’s family. However, none of the family members stated that the defendant had ever been diagnosed with any mental, emotional or behavioral problems or that he had ever experienced difficulty discerning right from wrong, either as a child or as an adult. Most of their statements indicated that the defendant exhibited “strange” or “odd” behaviors and beliefs and that his thought process was “different from most other people.”

| ^Further, in the defendant’s statement to the police officers, he admitted that he had ingested crack cocaine prior to entering the victim’s home and made repeated references to being “high” at the time of the murder. He admitted that he strangled the victim because Arthur asked him to do so. The defendant asserted intoxication as a mitigating circumstance during the penalty phase. However, the defendant did not assert insanity as an affirmative defense and he did not assert that, due to a mental illness or mental defect, he did not know right from wrong at the time ,of the offense.

Our review of the record shows that the defendant presented evidence of intoxication. However, the defendant failed to show “an indicia of insanity” at the time of the offense. In fact, the defendant’s own expert testified that the defendant “knew right from wrong at the time of the crime[J” Absent documented history of mental health treatment—which the courts have historically relied upon in reversing decisions denying motions to change a plea to “not guilty and not guilty by reason of insanity”—we find that the trial court did not abuse its discretion in denying the defendant’s motion to change his plea. This assignment lacks merit.

Motion to Exclude Photographs

The defendant contends the trial court abused its discretion in denying his motion to exclude certain photographs from evidence. He argues that the court allowed the state to introduce into evidence “repetitive, prejudicial and 114gruesome” photographs. He asserts that the probative value of the photographs is significantly outweighed by their prejudicial effect. Specifically, he argues that the autopsy photographs, as a whole, were particularly horrific and that their “gruesomeness” was magnified by the state’s decision to enlarge them. Further, the defendant argues that the introduction of crime scene photographs was unnecessary, in light of the trial testimony and the autopsy photographs.

Photographs are generally admissible if they illustrate any fact, shed any light upon an issue in the case, or are relevant to describe the person, thing or place depicted. State v. Magee, 2011-0574 (La. 9/28/12), 103 So.3d 285; State v. Sepulvado, 93-2692 (La. 4/8/96), 672 So.2d 158. A trial court’s ruling with respect to the admissibility of photographs will not be overturned unless it is clear the prejudicial effect of the evidence outweighs its probative value. LSA-C.E. art. 403; State v. Magee, supra; State v. Maxie, 93-2158 (La. 4/10/95), 653 So.2d 526.

Even when the cause of death is undisputed, the state is entitled to the moral force of its evidence, and post-mor-tem photographs of murder victims are admissible to prove corpus delicti, to corroborate other evidence establishing cause of death, as well as location and placement of wounds and to provide positive identification of the victim. State v. Magee, supra. Photographic evidence will be admitted unless it is so gruesome as to overwhelm jurors’ reason and lead them to convict without sufficient other evidence. Id.

In this case, the defendant filed a pleading entitled “Motion to Exclude Gruesome Photographs and Prohibit State From Displaying Them Enlarged and Projected on the Entire Wall in Front of the Jury.” The 11Bdefendant sought to prohibit the state from introducing into evidence the same photographs—some of which were enlarged and projected onto the wall—that were used at the defendant’s first trial. More specifically, the defendant argued as follows: eight of the photographs showed the victim’s “naked, bloodied torso[,] ragged flesh ... hang[ing] from gaping holes at the arm socket and neck [and] a bloodied head, black with decay”; 29 photographs documented “body parts at autopsy”; four photographs were “close-ups of scrapes on decayed skin”; one photograph “showed tool marks that matched a blade in evidence; and the “decaying torso and head with its mouth gaping open.” In the alternative, the defendant argued that the photographs should only be presented “in black and white to reduce the gruesomeness of the pictures that will overwhelm the jurors[.]”

The record reveals that the state and defense counsel agreed to review the photographs and provide written memoranda to the trial court regarding the motion to exclude the photographs. The photographs were submitted to the trial court for an in camera inspection. Subsequently, the state agreed to exclude 21 photographs and objected to the exclusion of 26 other complained of photographs. The trial court reviewed the memoranda prepared by counsel and performed an in camera inspection of the photographs. Thereafter, the court denied the defendant’s motion to exclude the remaining photographs, stating:

I will state for the record that this is a first degree murder case. I would be hard pressed to say the pictures aren’t gruesome. I don’t know of any murder case where the pictures aren’t gruesome[.]

| tfiThe record reveals that the state received a large number of photographs of the deceased victim from the police department and the coroner’s office. Multiple photographs included various parts of the victim’s dismembered body, some of which were taken from various angles. Twenty-six photographs admitted into evidence reflect the injuries the victim suffered and the condition and location of those injuries on the body. Additionally, in an effort to demonstrate that the victim did not die of natural causes, the state introduced into evidence photographs of the coroner holding various organs belonging to the victim.

We find that the trial court did not abuse its discretion in denying the defendant’s motion to exclude the photographs. The court examined each photograph and concluded that the photographs were admissible. Although the photographs were gruesome, we recognize that the murder and dismemberment of the victim’s body were, in fact, grisly acts. The law is well-settled: the admission of gruesome photographs is not reversible error unless it is clear that their probative value is substantially outweighed by their prejudicial effect. State v. Broaden, 99-2124 (La. 2/21/01), 780 So.2d 349; State v. Martin, 93-0285 (La. 10/17/94), 645 So.2d 190. The state is entitled to the moral force of its evidence, even when the cause of death is undisputed. We find that the defendant failed to show that the prejudicial effect of the photographs substantially outweighed their probative value. This assignment lacks merit.

CONCLUSION

For the reasons set forth herein, the defendant’s conviction and sentence are hereby affirmed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED.

      . On April 29, 2013, Arthur pled guilty to second degree murder. She was sentenced to serve life imprisonment at hard labor, without the benefit of parole, probation or suspension of sentence.

      . Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

      . The defendant sought supervisory review of the trial court's denial of the motion to change his plea, which this Court denied on October 15, 2015.

      . We note that the defendant had filed a "Motion to Preclude the Death Penalty Due to Mental Illness" and a pleading entitled "Motion to Bar the Death Penalty Because of the Unacceptable Risk that Mr. Mickelson’s Severe Mental Illness Will Not Be Reliably Considered If His Case Reaches the Penalty Phase, and That the Jury’s Verdict Will Not Be a Reasoned Moral Response." However, the defendant did not attempt to change his plea to "not guilty and not guilty by reason of insanity" until after the trial court denied his last motion for a continuance during his new trial.

      . Counsel for the defendant conceded that they had not actually viewed the photographs. They stated that they were relying upon the record from the defendant’s first trial to determine what was depicted in each photograph.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Frank Hayes GLADNEY and Margaret Stella Gladney Guidroz v. ANGLO-DUTCH ENERGY, L.L.C. and Anglo-Dutch (Everest) L.L.C.
    16-468
    Court of Appeal of Louisiana, Third Circuit.
    December 21, 2016
    Rehearing Denied January 25, 2017

      Larry C. Hebert, William H. L. Kaufman, G. Quinn Salmon, Michael C. Wynne, Ottinger Hebert, L.L.C., 1313 West Pin-hook, P.O. Drawer 52606, Lafayette, LA 70505-2606, (337) 232-2606, ATTORNEY FOR PLAINTIFF/APPELLANT, Frank Hayes Gladney and Margaret Stella Glad-ney Guidroz
    Stephen D. Baker, Law Office of Stephen D. Baker, 412 West University Avenue, Suite 101, Lafayette, LA 70506, (337) 235-8298, ATTORNEY FOR PLAINTIFF/APPELLANT, Frank Hayes Glad-ney and Margaret Stella Gladney Guidroz
    Samuel E. Masur, Paul B. Simon, Gordon, Arata, McCollum, Duplantis & Eagan, L.L.P., 400 E. Kaliste Saloom Road, Suite 4200, P.O. Box 81829, Lafayette, LA 70598-1829, (337) 237-0132, ATTORNEY FOR DEFENDANT/APPELLEE, Anglo-Dutch Energy, L.L.C. and Anglo-Dutch (Everest), L.L.C.
    Court composed of Sylvia R. Cooks, John D. Saunders, and Shannon J. Gremillion, Judges,
   COOKS, Judge.

Iain this appeal involving a royalty dispute, Defendants, Anglo-Dutch Energy, L.L.C. and Anglo-Dutch (Everest), L.L.C. (hereafter Anglo-Dutch), are oil and gas operators, who had an Oil, Gas and Mineral Lease with Plaintiffs, Frank Hayes Gladney and Margaret Stella Gladney Gui-droz.

On August 28, 2009, Plaintiffs granted a mineral lease over its land to Anglo-Dutch. That lease provided Plaintiffs were entitled to a one-fifth royalty on all oil, gas or other minerals reduced to possession by Anglo-Dutch from Plaintiffs’ land. On February 14, 2012, Anglo-Dutch began a gas well on Plaintiffs’ property which was completed on April 27, 2012. The reservoir and zone from which the well was to be produced were under the property of multiple landowners, not just Plaintiffs’ land. Anglo-Dutch commenced sales of production from the gas well on May 18,2012.

On May 11, 2012, Anglo-Dutch began proceedings to apply for a compulsory drilling and production unit for the well in question by filing a “pre-application notice” with the Louisiana Office of Conservation. A drilling and production unit combines all the land over a reservoir into a single “unit” and allocates all the production from it to the various landowners. The Commissioner of Conservation determines the percentage of production allocated to each landowner. Generally, the percentage corresponds to the proportion of each owner’s land in the unit.

It is required that once proceedings to apply for a drilling and production unit are begun, a “conditional allowable” is issued for the well. A conditional allowable is a measure granted by the Commissioner of Conservation that authorized the operator of the well to extract a specific volume of production from a reservoir prior to the establishment of a unit. The conditional allowable ensures that owners of tracts within the unit receive their equitable share of production Rfrom the sale of minerals extracted. Anglo-Dutch applied for a conditional allowable on May 15, 2012, which set forth:

All monies generated from the date of first production, the disbursement of which is contingent upon the outcome of the current proceedings before the Office of Conservation for the Frio Zone will be disbursed based upon results of those proceedings.

Anglo-Dutch’s application for the conditional allowable was granted on May 17, 2012, and Anglo-Dutch began to. produce the well the following day.

On July 3, 2012, Anglo-Dutch submitted its formal application for the unit. A public hearing was held on October 30, 2012, and Anglo-Dutch completed the required legal publication of notice under the rules of the Commissioner of Conservation. On January 23, 2013, Order No. 124-Y was issued establishing the unit. The Order specifically stated it “shall be effective on and after October 30, 2012.”

In letters dated March 5, 2013 and March 18, 2013, counsel for Plaintiffs made demand on Anglo-Dutch for the alleged non-payment of royalties due. Plaintiffs contended despite the October 30, 2012 effective date of the • Commissioner’s Order, Anglo-Dutch refused to pay Plaintiffs their full one-fifth Lessor’s royalty established by the Mineral Lease between the parties for production prior to October 30, 2012. Plaintiffs reasoned, after the October 30, 2102 effective date, royalties could be paid on the “unit tract” basis, but until that date, they were entitled to their full one-fifth Lessor’s royalty. It was admitted by all parties that as of October 30, 2012 moving forward, each owner within the unit was only entitled to the unit production in proportion to their surface acreage contained within the geographic confines of the Unit, and in Plaintiffs case, that was slightly over 78%.

Anglo-Dutch maintained Plaintiffs were not entitled to the full lease-basis royalty for pre-Unit production because the issuance of the conditional allowable Urequired them to pay only on a unit-basis. It was their position the issuance of the conditional allowable replaced its obligations under the Mineral Lease between the parties to pay full lease-based royalties.

Despite the Plaintiffs’ demands, Anglo-Dutch withheld all payments until April 2013, and at that point, they conditionally tendered “royalty payments” to Plaintiffs on a “unit-basis” for the production extracted from the well. The royalty checks did not contain any notation stating it was in “full payment” or in satisfaction of Plaintiffs’ claims for lease-based royalties; however, Plaintiffs refused to cash these checks unless Anglo-Dutch executed an agreement specifically stating the checks were not in fact full payment. Anglo-Dutch refused.

On January 2, 2014, Plaintiffs filed suit against Anglo-Dutch for breach of contract and requested damages for Anglo-Dutch’s failure to make timely payments of the full lease-based royalties and unconditional payment of the undisputed unit-basis payments owed. On November 3, 2015, Plaintiffs filed a Motion for Summary Judgment contending because the conditional allowable did not abrogate Anglo-Dutch’s obligation under the Mineral Lease between the parties to pay the full lease-based royalties, they were entitled to judgment in their favor. On January 7, 2016, Anglo-Dutch filed a Cross Motion for Summary Judgment, arguing by virtue of its obtaining the conditional allowable, it was required to pay only unit-based royalties to Plaintiffs. On March 8, 2016, a hearing was held on both motions. At the close of the hearing, the trial court granted Anglo-Dutch’s motion, and dismissed all of Plaintiffs’ claims by a judgment rendered on March 28, 2016. The trial court ruled in Anglo-Dutch’s favor, stating the following in its “Reasons for Ruling”:

The Court granted [Anglo-Dutch’s] motion and stated that the “allowable covers the royalty payments” because even though the unit was October 30th, it goes back to the date of production under the allowable. The Court also stated that [Plaintiffs have] not shown any other provision in the lease contract which would require them to be |fipaid more than is allowed by the commissioner under the allowable and the unitization agreement. The date of first production is the effective date. The Court also declined to include in its ruling an order that the plaintiffs be paid the unit basis on unconditional terms.

This appeal followed wherein Plaintiffs contend the trial court erred in holding that the unit’s stated October 30, 2012 effective date was altered to the date of first production by virtue of Anglo-Dutch requesting and obtaining a conditional allowable prior to that date. Plaintiffs also assert the trial court erred in holding they failed to identify any provision in the Mineral Lease between the parties which obligated Anglo-Dutch to render payment of a sum greater than- the unit-basis royalty guaranteed by the conditional allowable.

ANALYSIS '

This case poses a question of law; thus, the appropriate standard of review is de novo. Citgo Petroleum Corp. v. Frantz, 03-88 p. 3-4 (La.App. 3 Cir. 6/4/03), 847 So.2d 734, writ denied, 03-1911 (La. 10/31/03), 857 So.2d 484. Our review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. Id. If the trial court’s decision is based on an erroneous interpretation or application of the law, rather than a valid exercise of discretion, that decision is not entitled to deference by the reviewing court. Further, appellate courts review summary judgments de novo using the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La. 1991).

The dispute in this case only concerns the amount of royalties due Plaintiffs for the time period from May 17, 2012, the date of first production under the conditional allowable, through October 30, 2012, which was the effective date of the unit established by the Commissioner of Conservation’s Order. Following 17October 30, 2012, the parties do not disagree as to the royalty amount Plaintiffs are entitled to under the unitization order.

According to the trial court’s ruling “‘the allowable covers the royalty pay-merits’ because even though [the effective date of] the unit was October 30, 2012, it goes back to the date of production under the allowable.” This ruling essentially makes the unit effective prior to the specified effective date set forth by the Commissioner in the Order creating the unit. Plaintiffs contend this is legal error. We also note the trial court’s reasons for ruling state the Plaintiffs have “not shown any other provision in the lease contract which would require them to be paid more than is allowed by the commissioner under the allowable and the unitization agreement.” We disagree with this statement, as the Mineral Lease between the parties clearly provided Plaintiffs were to get lease-basis royalties on all production from the well and that lease governed the parties’ relationship prior to the unitization order, which was not made effective by the Commissioner until October 30, 2012.

Title 30 of the Louisiana Revised Statutes, provides the statutory authority for the Office of Conservation, and its head, the Commissioner, to conserve and regulate the oil, gas and mineral resources of this state. To this end, the Commissioner’s authority to unitize and issue allowables is an appropriate exercise of the State’s police powers pursuant to La.R.S. 30:4(A), which vests the Commissioner with the “authority over all persons and property necessary to enforce effectively the provisions of this Chapter and all other laws relating to the conservation of oil and gas.

Plaintiffs cite consistent jurisprudence of this state that “the Office of Conservation does not attempt to interpret private mineral leases and other private contracts, as they are beyond its jurisdiction and authority.” Yuma v. Thompson, 98-1399 (La. 3/2/99), 731 So.2d 190, 197. In Arkansas Louisiana Gas Co. v. Southwest Natural Production Co., 221 La. 608, 60 So.2d 9, 11 (La. 1952), the Louisiana Supreme Court explained that the Commissioner of Conservation, when establishing a drilling unit, “did not intend to, and did not, in fact, abrogate the contracts between the several lessors and their respective lessees with respect to the nature or structure of their mineral ownership, or alter in any way the consideration to be paid and the method of payment.” The trial court’s judgment holding that Anglo-Dutch’s royalty obligations under the Mineral Lease were abrogated by the terms of the conditional allowable is in direct contrast to this longstanding rule that the Commissioner nor his office should alter private contractual rights.

Plaintiffs also introduced the affidavit of John R. Aldridge, who was an employee of the Office of Conservation for approximately thirty-five years and regularly presided over unitization hearings as the chief hearing officer. Mr. Aldridge notes he was familiar with the allegations made in the litigation between the parties and attested “[t]he issuance of a conditional allowable is not intended to affect in any manner the private contractual obligations of an operator or lessee on whose land is situated a well which is the subject of a unit application.” He also stated “[t]he Office of Conservation issues a conditional production allowable without consideration of, and without prejudice to, any private contractual rights between the operator and the landowner-lessee on whose lands the well is drilled.”

In support of its argument that the issuance of the conditional allowable altered the effective date of the unit to the date of first production, Anglo-Dutch relied on Exxon v. Thompson, 564 So.2d 387 (La.App. 1 Cir. 1990), writ denied, 568 So.2d 1054 (La. 1990). In that case, the appellate court discussed the Commissioner’s authority to issue conditional allowables. The court in Exxon cited with approval the Commissioner’s explanation of the purpose and effect of a conditional allowable:

19That upon receipt of a pre-application notice, the Commissioner of Conservation does not issue additional permits to drill to the same sand within the proposed unit. Thus, in order to protect the correlative rights of all parties affected by curtailment of their right of capture, and to prevent waste that would result from the drilling of unnecessary wells, the Commissioner of Conservation grants only conditional al-lowables, requiring that all funds be escrowed from the date of the pre-ap-plication notice until an order issues creating the unit(s) and requiring that thereafter the escrowed funds be dispersed (sic) in accordance with the unit order.

Plaintiffs note the above explanation by the then Commissioner of Conservation, does not refer to any altering of the effective date of a unit established by the Commissioner’s order, but only states the issuance of the conditional allowable “re-quir[es] that all funds be escrowed from the date of the pre-application notice until an order issues creating the unit.” Id. at 395. The passage then provides the es-crowed funds must be dispersed based upon the percentage assigned to them by the Commissioner’s unit order.

As Plaintiffs note, the practical effect of the decision in Exxon applied to unleased owners. The operator in Exxon was also the actual landowner where the producing well was located. There was no mineral lease in effect in Exxon. Despite this, the court in Exxon stated the “owner-operator (Exxon) has a choice of shutting the well in until a unit is created or accepting the conditional allowable.” Id. at 396. Clearly in the facts of Exxon, the owner-operator would have no incentive to shut-in the well. As Plaintiffs note, it can be inferred that the court in Exxon “implicitly warns operator lessees of the precarious prospect of having to pay their drillsite lessor contractual royalties over and above those unit-based royalties guaranteed by the conditional allowable.” We agree with Plaintiffs, that if there is no continuing obligation on the part of a lessee-operator to fulfill the terms of their contract with the mineral lessor, the option to shut in the well as articulated by the Exxon court is rendered entirely superfluous.

| ^Plaintiffs also point out the unitization order in the present case specifically provides the unit becomes effective on October 30, 2012, not on the date of first production as was the case in Exxon. We agree this is another material factual distinction between the present case and Exxon. We find Anglo-Dutch’s reliance on Exxon misplaced when examined under the particular facts of this case.

Anglo-Dutch has also argued Plaintiffs’ action in this case is an impermissible collateral attack on the actions of the Commissioner. We disagree. Plaintiffs have consistently maintained they do not challenge the unit order or the conditional allowable, or the Commissioner’s authority to issue same. Rather, Plaintiffs seek recognition of their right, and Anglo-Dutch’s corresponding obligation, to be paid a one-fifth royalty on production before the effective date of the Unit. Plaintiffs have maintained this position from the beginning as can be seen from the following correspondence sent from Plaintiffs’ counsel to Anglo-Dutch in the beginning stages of the litigation:

The lawsuit that I will be preparing will not challenge the authority of the Commissioner to issue a conditional allowable in compliance with the unit yet to be created but will focus on the simple breach of contract by Anglo-Dutch in failing to make lease based royalty payments and unit based royalty payments to the Lessors, Prank Gladney and Margaret Stella G. Guidroz based upon royalty demand made March 18, 2013, ... against Anglo-Dutch Energy, L.L.C.

Plaintiffs cite the Louisiana Supreme Court case of Monsanto Chemical Co. v. Southern Natural Gas Co., 234 La. 939, 102 So.2d 223 (1958). In Monsanto, the plaintiff and defendants separately owned oil and gas leases which together covered a section consisting of 640 acres. The parties entered into pooling agreements integrating their interests in the section by which the plaintiff was to receive 11.15% of the working interest in the section and the defendants 88.85%. Subsequently, the Commissioner issued an order placing 126.4 acres covered by the defendants’ leases into a separate unit upon which production was established. The plaintiff |usued to establish its rights to share 11.15% of the production attributed by virtue of the Commissioner’s unit to the 126.4 acres under lease to the defendants. Defendant contended the agreements on which the plaintiff relied were inconsistent with and therefore superseded by the Commissioner’s order insofar as the underlying 126.4 acres was concerned.

The Supreme Court adopted the position taken by Monsanto and held that the only thing involved was the judicial determination of the rights of the lessees who were joint operators and had no effect whatsoever upon the Commissioner’s order. Pertinent to this appeal, the Monsanto case concluded that contractual rights not contrary to or inconsistent with the Commissioner’s order were properly subject to judicial review in litigation between the contracting parties. It was argued in Monsanto that the plaintiffs suit therein was an impermissible collateral attack because it questioned the Commissioner’s order and was filed prior to the plaintiff exhausting his administrative remedies. The supreme court rejected the contention that the plaintiffs action was an impermissible collateral attack on the Commissioner’s order, holding it was beyond the functions and powers of the Commissioner of Conservation to say whether or not alleged contractual rights under the conventional agreements between the lessees were recast and affected by the order of the Commissioner, and this was a matter “that is clearly a function of the courts.” Id. at 225.

Despite the arguments of Anglo-Dutch to the contrary, the Plaintiffs do not dispute the Commissioner’s authority to issue the Allowable or that it should be applied as written. Instead they seek only that their rights under the lease, negotiated in concert with Anglo-Dutch, be acknowledged and maintained. We find no merit in Anglo-Dutch’s contention that Plaintiffs’ suit is an impermissible collateral attack requiring the Plaintiffs to exhaust all administrative remedies.

|12As to the merits of Plaintiffs’ suit, we find it very persuasive that after granting the Allowable to Anglo-Dutch, the Commissioner’s Order provided that the effective date of the Unit, which would then provide for the sharing of production on a unit-basis, to be October 30, 2012, not the date of first production. Clearly, the Commissioner could have made the effective date of the Unit the date of first production had he so desired. Plaintiffs seek only to enforce the Commissioner’s unitization order as written and enforce the lease obligations the parties entered into.

Anglo-Dutch argues it had no choice but to produce the well in accordance with the allowable, and that it was caught in a “catch-22” situation. It maintains that any decision in this case to produce the well would have required it to pay “double royalties.” We disagree.

After obtaining the allowable, Anglo-Dutch had the option to modify its contractual obligations to Plaintiffs under the mineral lease through a royalty escrow agreement. Plaintiffs note this is a common practice in the oil and gas industry which would have allowed Anglo-Dutch to escrow all royalties due from the pre-unitization production without having to pay what now amounts to “double royalties.” Plaintiffs state they suggested just such an option to Anglo-Dutch. Thus, any argument that Plaintiffs would have not been amenable to executing a royalty escrow agreement and leaving Anglo-Dutch with only the option to shut in the well, rings hollow. Anglo-Dutch did not give Plaintiffs the option of executing a royalty escrow agreement and reached its own conclusion as to what Plaintiffs would have done if presented with that option.

In its apparent desire to immediately produce from the well, Anglo-Dutch chose to forego a royalty escrow agreement and produce under the allowable, and thus incurred an obligation to pay royalties to Plaintiffs as well as the adjoining landowners. The Gommissionei’’s unitization order provided its effective date to [ iabe October 30, 2012, which is the date when payment of royalties on a unit-basis was to begin. Prior to that date, we find the relationship between Anglo-Dutch and Plaintiffs was governed by the mineral lease between the parties. Therefore, Anglo-Dutch incurred concurrent obligations to pay lease-based royalties to Plaintiffs and unit-based royalties to the adjacent landowners. Anglo-Dutch could have modified the lease by entering into a royalty escrow agreement with Plaintiffs, but chose not to of its own volition.

DECREE

For the reasons set forth above, we find the relationship between Anglo-Dutch and Plaintiffs prior to October 30, 2012, is governed by the bargained for lease between the two parties. Anglo-Dutch’s obligation to pay Plaintiffs a one-fifth royalty on all production from the well is modified only upon the Commissioner’s unitization order’s effective date, October 30, 2012. The trial court’s finding to the contrary is erroneous and hereby reversed. All costs below and on appeal are assessed against defendants, Anglo-Dutch Energy, L.L.C. and Anglo-Dutch (Everest), L.L.C.

REVERSED.

      . The Louisiana Commissioner of Conservation is appointed by the Governor and serves a four-year term.