author: SAVOIE, Judge.

text:
    STATE of Louisiana v. Earnest G. HAMILTON
    16-587
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2017

      Billy Joe Harrington, District Attorney, State of Louisiana, Parish of Natchitoches, 10th Judicial District Court, P.O. Box 838, Natchitoches, LA 71458-0838, (318) 357-2214, COUNSEL FOR PLAINTIFF/AP-PELLEE: State of Louisiana
    Peggy J. Sullivan, Louisiana Appellate Project, P.O. Box 2806, Monroe, LA 71207-2806, (318) 855-6038, COUNSEL FOR DEFENDANT/APPELLANT: Earnest G. Hamilton
    Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.
   SAVOIE, Judge.

| defendant Earnest Hamilton was indicted on December 19, 2013, for aggravated rape, a violation of La.R.S. 14:42. On October 13, 2015, Defendant filed a “Motion to Have Attorney Jason Methvene [sic] Fired.” A hearing was held on October 16, 2015, following which the trial court denied the motion in open court. Trial commenced on January 25, 2016, and on January 26, 2016, the jury found Defendant guilty as charged. Defendant was sentenced on February 25, 2016, to life imprisonment without the benefit of parole, probation, or suspension of sentence.

Defendant has perfected a timely appeal, wherein he alleges two assignments of error: 1) The trial court erred in not conducting a sufficient inquiry into the allegations regarding a clear conflict which existed between Defendant and defense counsel and then replacing him; and 2) The trial court erred in failing to grant challenges for cause made by Defendant.

For the following reasons, the Defendant’s assignments of error are without merit. Defendant’s conviction and sentence are affirmed.

FACTS

Defendant, whose date of birth is October 29, 1977, had sexual intercourse between the dates of July 1, 2013, and July 5, 2013, with B.H, whose date of birth is January 10, 2002. The victim became pregnant and delivered a baby boy on March 20, 2014. At trial, B.H. testified that her uncle, Defendant, had sexual intercourse with her when she was eleven years of age. DNA samples were taken from Defendant, the victim, and the child, and they were submitted for analysis. |PThe results showed that Defendant could not be excluded as the biological father. The paternity index “indicated that Earnest Hamilton was 418 billion times more likely to be the father” of the child than “another randomly selected male.”

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After a review of the record, we find no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

In brief, Defendant asserts that the trial court failed to make a sufficient inquiry into his assertion that defense counsel should have been removed from his case. Defendant filed a pro se motion requesting the trial court have defense counsel, Mr. Methvin, replaced. In his motion to fire defense counsel, he alleged that when defense counsel came to see him in jail, defense counsel told him that his trial date was October 19, 2015; that he would be found guilty of aggravated rape; “[a]nd that the Assistant District Attorney Billy Jo Harrington [h]ad [t]old Mr. Melvine [sic] not to do [a]nything to help the Plaintiff[.]” Defendant asserted that defense counsel did no investigation of the case and filed none of the motions Defendant wanted him to file.

At the hearing, the following conversation ensued between the trial court and Defendant:

THE COURT: Mr. Hamilton, you filed a motion to have Attorney Jason Meth-vin fired?
MR. HAMILTON: Yes ma’am.
THE COURT: On what basis sir?
|aMR. HAMILTON: I mean, ya’ll [sic] should see this here, I mean he ain’t, after two years, almost two years it [sic] coming straight to my trial.
THE COURT: Okay I don’t really, I don’t understand what you just said, how that effects [sic] this at all.
MR. HAMILTON: How it don’t [sic] effect [sic] it?”
THE COURT: Well has Mr. Methvin given you all the discovery that’s [sic] been given to him?
MR. HAMILTON: Yeah, what a week before we go to trial?
THE COURT: Well, when did he receive it? Do you have anything to defend it?
MR. HAMILTON: Ya’ll [sie]do what ya’ll [sic] want to do man.
THE COURT: No, Mr. Hamilton, come back here. Mr. Hamilton, come back here.
MR. HAMILTON: You can’t make me talk to you.
THE COURT: You filed the motion sir.
MR. HAMILTON: Are you [sic] grant it or you not? I’m not going to no trial with no f_Jdng Jason Methvin.
THE COURT: Uh, he is held in contempt. Ten days in lock down. You’re not gonna [sic] cuss in my courtroom.
MR. HAMILTON: Suck my <L_k b_h.

This concluded the hearing on the motion. The trial court denied the motion.

Defendant abandoned any further presentation of evidence on his motion by stating, ‘Ya’ll [sic] do what ya’ll [sic] want to do man.” He was uncooperative, disrespectful and eventually had to be escorted out of the courtroom. Furthermore, Defendant did not meet his burden of proof. He did not enter any evidence into the record to support his claim. In his pro se motion, Defendant did not state what further investigation defense counsel should have conducted or what defense counsel would have found had he investigated further. Nor did Defendant indicate Lwhat motions defense counsel should have filed. In brief to this court, there was no discussion as to what further investigation was necessary or what motions Mr, Methvin should have filed.

In brief, Defendant raises the concern of ineffective assistance of counsel. He states:

In this case, it is clear Earnest and his appointed counsel had a communication problem. Once the attorney-client relationship has been damaged to the extent the client does not trust the attorney, it would be difficult for an attorney to provide effective assistance of counsel. In this case, it is clear Earnest was not going to be able to communicate with Trial Counsel based on his trepidations about the nature of the relationship and level of interest on the part of counsel. Thus, he should have been provided counsel with whom he could effectively communicate in order to ensure his constitutional right to effective counsel.

In State v. Christien, 09-890, p. 7 (La.App. 3 Cir. 2/3/10), 29 So.3d 696, 701, this court stated:

A claim for ineffective assistance of counsel is properly raised in an application for post-conviction relief because this allows the trial court to order a full evidentiary hearing on the matter. State v. Burkhalter, 428 So.2d 449 (La.1983). However, where the record contains sufficient evidence to decide the issue, and the issue is raised by an assignment of error on appeal, it may be considered by the appellate court. State v. Tapp, 08-1262 (La.App. 3 Cir. 4/1/09), 8 So.3d 804; See also State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461.

Defendant filed his motion with the trial court, it was heard and ruled upon, and he then appealed this issue before this court. Therefore, the claim for ineffective assistance of counsel is properly considered on appeal. The record shows that Defendant provided no evidence at the trial court due entirely to Defendant’s actions in the courtroom. The trial court did not err in denying Defendant’s motion. This assignment is without merit.

I .ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the trial court erred when it denied cause challenges for six jurors following voir dire, forcing Defendant to use all twelve peremptory challenges.

In State v. Lewis, 12-1021, pp. 9-11 (La. 3/19/13), 112 So.3d 796, 801-02 (footnote omitted), the supreme court stated:

The peremptory challenge occupies an important role in the jury selection process. By enabling each side to exclude those jurors it perceives as harboring subtle biases with regard to the case which were not elicited on voir dire or which do not establish legal cause for a challenge, peremptory challenges are a means of “‘eliminating] extremes of partiality on both sides,’.. .thereby ‘assuring the selection of a qualified and unbiased jury.’ ” Holland v. Illinois, 493 U.S. 474, 484, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990), quoting Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) and Batson v. Kentucky, 476 U.S. 79, 91, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). While peremptory challenges are one means of assuring the selection of a qualified and unbiased jury, the U.S. Supreme Court has determined that an erroneous ruling denying a peremptory challenge is not, as a matter of federal constitutional law, a structural error requiring automatic reversal of a defendant’s conviction. Rivera v. Illinois, 556 U.S. 148, 160-61, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009). Rather, state law determines the consequences when a peremptory challenge is erroneously denied. Id, at 161-62, 129 S.Ct. 1446. As the Court explained in Rivera, “[i]f a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern .., [but] a matter for the State to address under its own laws.” Id.
In Louisiana, the peremptory challenge is protected by and preserved in the constitution. La. Const, art. I, § 17 (“The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law”). While the exercise of a peremptory challenge is provided through legislation, La.C.Cr.P. arts. 795, 799, and 799.1, it is not merely a statutory right. Thus, this court has long recognized that when a defendant is forced to utilize a peremptory challenge to correct a district court’s error in denying a challenge for cause and thereafter exercises all available peremptory challenges on other prospective jurors, a substantial right of the defendant, guaranteed by the Louisiana constitution, is affected. State v. Monroe, 366 So.2d 1345, |fi1347 (La.1978), In such instances, prejudice is presumed. Id.; State v. Juniors, 2003-2425, p. 8 (La. 6/29/05), 915 So.2d 291, 305.

Louisiana jurisprudence holds that trial courts have wide discretion in determining whether to reject a juror for cause, and those determinations cannot be disturbed absent an abuse of discretion. State v. Jones, 474 So.2d 919 (La.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986). A review of the record indicates that Defendant used all twelve of his peremptory challenges prior to the full complement of the jury. La.Code Crim.P. art. 799.1.

In a third circuit case with a defendant of the same last name, State v. Hamilton, 12-204, pp. 4-5 (La.App. 3 Cir. 11/20/13), 127 So.3d 76, 79-80, writ denied, 13-2925 (La. 5/30/14), 140 So.3d 1173, this court discussed issues of a trial court’s denial of challenges for cause, as follows:

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 entire voir dire reveals the trial judge abused its discretion....
“A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied.” However, a trial court does not abuse its discretion when it refuses to excuse a prospective juror on the ground he is not impartial where, after further inquiry or instruction, the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and evidence. Thus, to establish reversible error warranting reversal of a conviction and sentence, defendant must demonstrate “(1) erroneous denial of a challenge for cause; and (2) the use of all his peremptory challenges.” In the instant case, it is undisputed that defense counsel exhausted his peremptory challenges, and, therefore, need only show that the trial court abused its discretion by denying a challenge for cause.
17State v. Odenbaugh, 10-268, pp. 23-25 (La. 12/6/11), 82 So.3d 215, 236-37, cert. denied, 568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012) (citations omitted).
According to La.Code Crim.P. art. 797, the State or Defendant may challenge a prospective juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4)The juror will not accept the law as given to him by the couit.
In Odenbaugh, 82 So.3d at 238 (citations omitted), the supreme court further stated:
[WJhile cognizant of the broad discretion afforded a district court when ruling on cause challenges, this Court has cautioned that a prospective juror’s responses cannot be considered in isolation and that a challenge should be granted, “even when a prospective juror declares his ability to remain impartial, if the juror’s responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably [inferred].”

In the current case, Defendant argues that the trial court erred when it denied cause challenges for prospective jurors Calab Chesser, Van Wiggins, Kathy Kohls, Lykeisha Marshall, Angela Perot, and Katie Carter.

Calab Chesser:

While the State accepted Mr. Chesser, defense counsel challenged him for cause, stating:

|sUh, not only did he struggle with the presumption of innocence and production, uh, he was one of the ones that also testified about how he ... scratch that. Okay. P[sic] expects for the defendant even after the prosecution, finishes his case to produce and/or testify one way or the other. And I believe that one point, Your Honor, he even stated that it would be... I believe, my fault, and that I did not prove that my client was innocent. Uh, so, I think that he’s having a problem with the presumption of innocence and production, as well as the defendant’s right not to self.. .to not incriminate himself. So, I challenge him for cause.

In brief, Defendant points to a conversation between Mr. Chesser and defense counsel, as follows:

MR. METHVIN: Okay. And you believe that...do you believe that innocent people can be indicted by a grand jury?
MR. METHVIN: Okay. Mr. Chesser?
MR. CHESSER: Yes Sir. I don’t believe it carries any weight. Uh, the reason I’m here is to hear both of /alls [sic] side and go off of that.. .what happened. . .what I hear about other people, it doesn’t have anything to do with (inaudible).
MR. METHVIN: Number 5. When I had asked you previously about grand jury indictment and whatnot, you said something that kind of caught my ear a little bit. And it was that you wouldn’t make a decision until you heard both sides of the story. Right?
MR. CHESSER: Yes Sir.
MR. METHVIN: Could you tell me what you mean by that?
MR. CHESSER: Uh, I’m not going to go just based off of what one side says. Uh, in order to be fair, /all each have to have time to prove facts from both sides. So I’m not going to...
MR. METHVIN: Okay.
MR. CHESSER: ... I mean, right now, he’s not guilty because he haven’t [sic] been proven guilty.
|flMR. METHVIN: Okay. What if I were to tell you the law requires the State to prove the case beyond a reasonable doubt. And that a defendant does not have [to] show you anything?
MR. CHESSER: If the State can prove to me that he did it. And I have a reasonable doubt in my mind that he didn’t do it, then he’s not guilty. But if I.. .if he can prove that he did do it. And that I believe he did. Then (inaudible).

The conversation went on in this vain, with Mr. Chesser stating that he understood Defendant was innocent until proven guilty. He did state, in response to defense counsel’s question if he would be “disappointed” if Defendant did not testify, that he would like to hear both sides, but he would not hold it against Defendant if he did not testify.

The State noted that “[h]e did not appear to me that way.... And when the instruction was read to him, uh, actually what the charge is gonna be to the jury, he understood that. And stated that he would abide by all of that, Your Honor.” The trial court agreed, having specifically addressed Mr. Chesser, asking him, “after all the evidence, you are not convinced beyond a reasonable doubt. The State calls the defendant’s guilt, could you find the defendant not guilty, even if the defendant chose not to testify as evidence?” Mr. Chesser responded, “Yes, Ma’am.” The trial court thereafter stated that “when he rehabilitated as well as when he was asked the specifics, that he understood that the defendant did not have to testify, and he would not hold it against the defendant.”

There was no error in the trial court’s denial of defense counsel’s challenge for cause. There was nothing in Mr. Chesser’s answers which indicated he was biased, prejudiced, or was unable to render a judgment according to law. Mr. Chesser specifically said that Defendant was “not guilty because he haven’t [sic] been proven guilty.”

h ftVan Wiggins:

Defense counsel explained his reason for challenging Mr. Wiggins for cause, as follows:

Uh, he said that he would give weight to the Grand Jury Indictment, Number 1. Number two, he stated, when I asked him about which was worse, the leading [sic] 11 go... 11 guilty go free versus one innocent man. He indicated that it would be worse for letting the 11 guilty go free. Thereby showing at least on two grounds that he has problem [sic] with the presumption of innocence.., uh, given to my client. Uh, and he... that was quite an extensive conversation that he and I had versus the brief replies that he gave to the Court when the Court offered just instructions to him.

The record indicates that Mr. Wiggins was confused about the role of the grand jury. He asked why he was there if Defendant had been found guilty by the grand jury. Mr. Wiggins did not say, as inferred in Defendant’s brief, that persons indicted by a grand jury were guilty.

Defense counsel’s and Mr. Wiggins’ voir dire discussion was thus:

MR. METHVIN: Okay. Mr. Wiggins, right in front of you. What do you... same question to you about allowing... convicting 1 innocent man, and letting 11 go free. What [do] you think is worst [sic]:
MR. WIGGINS: I’d be sick either way. But sending 11 free, I wouldn’t... no way.
MR. METHVIN. Okay.
MR. WIGGINS: And I feel that if I was in the jury. And that one innocent. . .then, you didn’t do your job to proven [sic] guilty.. .prove him innocent.
MR. METHVIN: ... Do I have to prove my client innocent?
MR. WIGGINS: Well, I believe they are innocent until proven guilty, but if 12 have already.. .them [sic] 12 say he was guilty, and then... I don’t know, I feel like you would have to prove him to be innocent.
MR. METHVIN: Okay. So, you would expect me to produce evidence...
|„MR. WIGGINS: That he was innocent.
MR. METHVIN: .. .at the closing [of the] states case?
MR. WIGGINS: Yeah.
MR. METHVIN: Okay. And if I didn’t, you’d hold that against me? My client?
MR. WIGGINS: If [sic] didn’t do it.. .1 mean, he would have to still prove his case, the State.

Following the defense counsel’s questioning, the State addressed Mr. Wiggins and explained the role of the grand jury as opposed to the jury selection Mr. Wiggins was participating in at the time.

MR. HARRINGTON: .. .Uh, going back to the indictment question, now Mr. Wiggins. If I told you that there are two types of juries in Louisiana, one is a grand jury, and that’s an accusatory type (inaudible). They decide whether or not to charge someone with a crime or not. And then there is a patent jury, which is what y’all are here for today, which is fact finding is the time [sic] guilty or not guilty on Melissa [sic] crime. So, two different types of bodies. And, so, does that change in town [sic] on that issue any?
MR. WIGGINS: Uh, yeah (inaudible, away from microphone.)
MR. HARRINGTON: Okay. So, you would not be inclined to give us grand jury indictment, if that’s the only.. .what got us here?
MR. WIGGINS: Yeah.. .yes sir.
MR. HARRINGTON: Okay. And you talked a lot about the defendant not putting on evidence or maybe putting on evidence or...the judge will instruct you that the defendant does not have to put on evidence, and that you can’t hold that against him. Would you follow the law? Or that instruction by the judge?
MR. WIGGINS: Yes sir.

Later, the trial court addressed Mr. Wiggins:

THE COURT: And Mr. Wiggins? I don’t care what your answer is, but I just want to explore the inconsistencies, okay?
MR. WIGGINS: Okay.
li?THE COURT: Between what was said to Mr. Methvin and what was it to Mr. Harrington. So, if the Court instructed you that. The bill of indictment is not evidence, and cannot be considered as evidence. It is simply the vehicle that the law requires to get this matter to court. Would you accept that, Sir?
MR. WIGGINS: I would.
THE COURT: Okay. And previously, you answered yes to the role of the jury is to decide what facts have been proven or not proven. The State must prove the guilt of the accused, beyond a reasonable doubt. The defendant begins, the trial with a clean slate. The mere fact of a charge means nothing in terms of evidence. The defendant is presumed to be innocent, can you accept this as law and hold the State to its burden of proof and give the defendant the presumption of innocence?
MR. WIGGINS: Yes.
THE COURT: So, do you understand, sir? The inconsistencies in the answers that you are giving at this point?
MR. WIGGINS: Yes.

The trial court stated that “Mr. Wiggins was sufficiently rehabilitated. And that he was clearing [sic] his answers that he understood that the indictment was not evidence[.]” We agree with the trial court. The trial court did not err when it denied Defendant’s cause challenge. Mr. Wiggins was of the impression that a grand jury indictment was a statement of guilt and was confused as to what would have been his responsibilities if he was selected to be a juror. As noted above, “[a]n opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence.” La.Code Crim.P. art. 797.

Lykeisha Marshall:

| iaMs. Marshall testified during voir dire that she had a two-month-old child at home. During questioning by defense counsel, Ms. Marshall explained that she was concerned because she had a doctor’s appointment for her infant on the following Wednesday. She also stated that she worked five days a week and that, at the time, she shared a vehicle with her mother, and the vehicle was currently out of commission. Later, the trial court asked Ms. Marshall if she could make further arrangements for transportation if she were selected as a juror and Ms. Marshall answered, “I can try.”

Defense counsel based his challenge for cause on the reason that “she would be unable to concentrate fully upon deliberations given outside concerns and giving [sic] the youth of the child and the fact that she did not have what sounded like contingency plans available for her.” The trial court denied the challenge, stating that “[w]hen asked Ms... when the Court asked Ms. Marshall about her child, she did say that she could make arrangements.” Id. 'While, Ms. Marshall expressed concern about a doctor’s appointment for her child the following week, nothing Ms. Marshall said indicated that she would not be able to deliberate because she would be too concerned about her child. Ms. Marshall’s problem was transportation. Otherwise, Ms. Marshall did not indicate bias, prejudice, or an inability to follow the law.

Cathy Kohlsi

Defense counsel challenged Ms. Kohls for cause because:

For the same reasons, the weight and sufficiency of the evidence that she would give to the grand jury indictment. I believe that she also stated that she expected there to be two sides. I had asked her what I thought, Your Honor, was an easy question, which was, and I think she might have misunderstood it. I don’t know. But I had asked her initially, if she had to vote on the guilt or innocence of him, at least right now that she would not vote.. .she would withhold her vote. 114She stated.. .uh, while she stated she wouldn’t have enough information, she stated that she had expected there to be information from both sides.

The trial court denied the challenge, stating that “[t]he Court believes that she did say that she would listen to all the evidence, and so... and that she did not have enough information at this time to make a determination.” Id.

In brief, Defendant states that “Ms. Kohls asked about possible punishment during voir dire. ... She then went on to say if the State didn’t prove every element of the crime she would abstain from voting. She was fairly insistent on this point, saying she would not vote not guilty.”

Mr. Kohls did ask what the sentence would be if Defendant was found guilty. She was advised by the trial court that sentencing was not a concern during voir dire. She did not mention it again. Later, defense counsel asked of another prospective juror:

[Wjould the age of the alleged victim in this case make you want to.. .for lack of a better word for this state some slack and maybe vote guilty, even though they didn’t [sic] all essential elements crime?

Defense counsel then directed Ms. Kohls’ attention to the same question without restating or rephrasing the question. He asked Ms. Kohls:

MR. METHVIN: Well, what if I tell you that ... let’s just say. They didn’t offer any evidence as to uh ... to the age of the child?
MS. KOHLS: It’s going to say right now. I don’t have any information.
MR. METHVIN: If [sic] were to ask you to uh.. .you’ve heard the charge if we were to ask you would vote right now, guilty or not guilty would you say?
MS. KOHLS: I wouldn’t vote. I’d abstain.
MR. METHVIN: Okay. Why would you abstain?
MS. KOHLS: I... I don’t have any information.
llfiMR. METHVIN: All right. Fair enough. Why wouldn’t you vote not guilty? Just right now, at this instant ... at this moment right now, we’re asking you to give a verdict.
MR. Kohls: No.
MR. METHVIN: Okay.
MS. KOHLS: I ... I wouldn’t. We’re here in the Courtroom being chosen as a jury for a trial. So, I think that there must’ve been a basis for us to appear here, and be selected. Anywhere [sic] at this point, I would think that there are some facts to be heard.
MR. METHVIN: Okay. The (inaudible) been charged by a grand jury indictment, does that mean anything to you, at least at this point, or influence your ability to hear this case?
MS. KOHLS: It sounds very serious.
THE COURT: Do you think that that grand jury indictment, carries weight that you’re going to carry with you throughout the trial?
MS. KOHLS: I would be waiting to hear the facts before I make a decision.

It appears from defense counsel’s questioning that he was trying to get Ms. Kohls to say that Defendant was innocent until found guilty. However, the trial court did not err when it denied the challenge. Ms. Kohls did not say that, unless the State proved its case, she would not vote. Defense counsel demanded a vote of Ms. Kohls that minute—during voir dire; this was what she was objecting to. There was nothing in her response to Mr. Methvin’s questions to indicate that she was biased, prejudiced, or would not follow the law. Ms. Kohls’s subsequent answers indicated she would listen to the evidence before she made a determination of Defendant’s guilt or innocence. The trial court did not err when it denied the challenge for cause.

Angela Perot:

|, (¡Defense counsel challenged Ms. Perot because “[s]he stated there toward the tail end of your questioning. It did not seem like that [sic] she was able to break down the statute to the elements necessary, and therefore would have a hard time applying that [sic] the law and judging beyond a reasonable doubt as to each of the available ... each of the elements.” The trial court disagreed, stating that “Ms. Perot has indicated that she would follow the law as instructed.” Id.

During voir dire, defense counsel asked the group at large:

MR. METHVIN: How many of you ... and if I can get a show of hands. How many of you are expecting to hear both sides of the story so to speak?
(NO RESPONSE RECORED BY EITHER OF THE JURORS)
MR. METHVIN: Kind of everybody. Okay. How many of you would be disappointed if at the close of the State’s case, I come on behalf of Mr. Hamilton [sic] do not present any evidence?
MS. PEROT: Would be disappointed?
MR. METHVIN: Sure.
MS PEROT: (No response recorded).
MR. METHVIN: Okay. Anybody else? All right. Ms. Perot?
MS. PEROT: I would be disappointed.
MR. METHVIN: Okay. Do you think that the defendant has the burden of production to prove his innocence?
MS. PEROT: No.
MR. METHVIN: Okay. When you say disappointed, would you explain it?
MS. PEROT: I would just like to hear, the defendant himself.. .uh, claim his innocence, I guess, or his side of the story.
MR. METHVIN: Okay. Uh, you’re familiar with the right not to incriminate yourself?
MS. PEROT: Sure.
117MR. METHVIN: Do you understand that...
MS. PEROT: And I understand that if he does not put anything on the table, whatever he is charged with, the four things you stated, that’s what I have to make my decision [sic] guilty or innocent.
MR. METHVIN: Right. If he does not produce any evidence or does not testify. Can you vote not guilty based upon just
MS. PEROT: Yes.
MR. METHVIN: ... judging the prosecution’s case in chief?
MS. PEROT: Yes.

Later, the trial court questioned Ms. Perot:

THE COURT: I don’t care what your answers are. I just want to explore some inconsistencies right now. Just to make sure that were [sic] clear, okay? Uh, Mr. Perot ... you ... if after you heard all the evidence you are not convinced beyond a reasonable doubt. The State [sic] from the defendant’s guilt could you find the defendant not guilty. Even if the defendant chose not to testify or present any evidence?
MS. PEROT: There’s a little confusion here for me. Because Mr. Methvin, and Mr. Harrington presented two different ways to find the defendant guilty. Mr. Methvin focused on four different points and what Mr. Harrigton ran, was very concise, I guess. So, what is your question of me that I would be able to evaluate what he is charged with? And then what the State presents? And then what I’ve been [sic] able to find him guilty or innocent?
THE COURT: Would you accept the law as instructed by the Court?
MS. PEROT: Yes.
THE COURT: And if after you have heard all of the evidence, you are not convinced beyond a reasonable doubt. The State proved the defendant’s guilty [sic], could you find the defendant not guilty?
MS. PEROT: Yes.
THE COURT: And that even if the defendant chose not to testify are [sic] present any evidence?
MS. PEROT: Yes.
I,«THE COURT: And ... can you evaluate the credibility of a child or any other witness, just as you would evaluate the credibility of any other witness (sic)? Not giving them more weight than any other witness?
MS. PEROT: Yes.
THE COURT: Thank you, Ma’am. The defendant is presumed to be innocent, can you accept this as law and hold the State to its burden of proof and give the defendant the presumption of innocence?
MS. PEROT: Yes.

Nothing was said during Ms. Perot’s responses to defense counsel that indicated she would have a hard time discerning the elements of the crime and applying the law. Furthermore, Ms. Perot clearly stated that she would like to hear from Defendant, but she appeared to be rehabilitated by the trial court’s instructions regarding the burden of proof and Defendant’s presumption of innocence. Id. We find that Ms. Perot was sufficiently rehabilitated. The trial court’s denial of defense counsel’s cause challenge was without error.

Katie Carter:

Defense counsel asserted that he challenged Ms. Carter because she believed the element of the victim’s age was immaterial and that she stated she would like to hear from both sides. During voir dire, defense counsel asked Ms. Carter a question concerning the age of the victim as an element, as follows:

MR. METHVIN: If the State does not put forth anything is to say m[sie], but they prove the other three elements of the case. As to the charge, how did you vote?
MS. CARTER: Unless they ... they would have to prove a reasonable doubt that the three elements. Uh, age would be a factor. If they proved the elements ... all the other elements without a reasonable doubt, I would have to say guilty.
MR. METHVIN: So, in your mind, the State would in three out of four?
J^MS. CARTER: It shouldn’t... the State... I think the... I think the State would do a better job in all of the elements ... all the elements before [sic] so we can make a fair decision.
MR. METHVIN: So, you and I let them ... you would not require them to prove every element of the crime (inaudible) still vote guilty?
MS. CARTER: I think uh, they would put forth all efforts to prove all elements of the crime. Uh, age ... age should ... it’s more ... should be considered. But if they are proved without a reasonable doubt, the other elements, you know, we still have to vote guilty. If they prove without a reasonable doubt on all the elements, I don’t think the State would not prove all four elements.
MR. METHVIN: Even though ... even though the statute defines ... specifically defines the crime as the one under the age of 13, and they don’t prove anything as for as the child being under the age of 13.
MS. CARTER: But then again we would have to listen to all the evidence come [sic] from the chair and make a fair decision from that. So, honestly, you couldn’t say whether he was guilty or not guilty, you would have to listen to all the evidence.

Mr. Methvin then asked the prospective jurors at large whether they would evaluate the testimony of a child under the age of thirteen, since age was a necessary element of the charge. Ms. Carter responded that she believed she could.

Following defense counsel’s questioning, the State cited the definition of rape and reiterated the elements of aggravated rape, noting specifically that the victim, as in this case, had to be under the age of thirteen. He asked if the prospective jurors understood. Ms. Carter responded that she understood. Finally, the trial court addressed Ms. Carter specifically and asked her if she could follow the court’s instructions as to the law. The trial court asked her that, if the State failed to meet its burden of proof beyond a reasonable doubt, could she find Defendant not guilty. Ms. Carter answered affirmatively to the trial court’s ^questions. She further stated that if Defendant chose not to testify or present evidence, she would not hold it against him.

The State disagreed with defense counsel’s challenge for cause of Ms. Carter, stating that Ms. Carter “was very clear in the end, Your Honor, that she would follow the law.” The trial court agreed. Ms. Carter’s initial responses to defense counsel’s question contained nothing that indicated she was partial, biased, or prejudiced. She acknowledged that age of the victim was a necessary element of aggravated rape in this case.

Regarding all of the six prospective jurors in the current case, even if there was seemingly prejudicial responses, in State v. Mazique, 09-845, p.17 (La.App. 5 Cir. 4/27/10), 40 So.3d 224, 236-37, unit denied, 10-1198 (La. 12/17/10), 51 So.3d 19, (footnotes omitted), the fifth circuit noted:

A prospective juror’s seemingly prejudicial response is not grounds for an automatic challenge for cause, and a district judge’s refusal to excuse him on thfe grounds of impartiality is not an abuse of discretion, if, after further questioning, the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. A challenge for cause should be granted, however, even when a prospective juror declares his 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 law may be reasonably implied.

In State v. Bozeman, 03-897, p. 4 (La. App. 5 Cir. 1/27/04), 866 So.2d 1029, 1032, writ denied, 04-497 (La. 7/2/04), 877 So.2d 141, the fifth circuit cited State v. Anthony, 98-406 (La. 4/11/00), 776 So.2d 376, 392, as stating that “[t]he trial court has great discretion in ruling on cause challenges because ‘it has the benefit of seeing the facial expressions and hearing the vocal intonation of the members of the jury venire as they respond to questioning.’”

121In the present case, of all of the above prospective jurors’ answers, none of the answers indicated definitively or with certainty or even probably that they could not accord Defendant the presumption of innocence. In Bozeman, 866 So.2d 1029, a prospective juror, after asking if the defendant had prior convictions or arrests, was asked by the trial court if he could apply the presumption of innocence, and he replied that he “probably could not do that.” Id. at 1032. The fifth circuit noted:

However, a prospective juror’s declaration of fairness and neutrality does not assure an understanding of the constitutional principle of the presumption of innocence. When the prospective juror clearly asserts that he could not or probably would not apply the presumption of innocence that juror should be struck for cause unless rehabilitated. The failure of the trial judge to grant such a challenge is reversible error. In State v. Oliphant, 220 La. 489, 56 So.2d 846 (1952), the Louisiana Supreme Court held that when a prospective juror was not able to afford the defendant the presumption of innocence mandated in the law, the trial court erred in refusing to sustain defendant’s challenge for cause as to that prospective juror. The Olvphant court held “no matter how strongly the juror asserts that he could render a fair verdict,” where the juror was unable either to afford the defendant the presumption of innocence mandated in the law or where the prospective juror would not permit the presumption of innocence to follow the accused all during the trial, there exists a valid challenge for cause. Oliphant, at 850.
In considering the challenge for cause in this case the trial judge indicated that he believed that Mr. Lacoste only had a problem with the presumption of innocence if the juror knew the defendant had prior convictions. The trial judge in denying the challenge noted in the record that prior convictions “shouldn’t come out.” Whether or not the defendant has or does not have prior convictions does not affect his constitutional right to the presumption of innocence.
The Supreme Court has stated “it is an important part of voir dire examination to discover any prospective juror who may have difficulty understanding his right (the presumption of innocence) as well as to discover a juror who may hold it against a defendant who exercises the right.” State v. Cross, 93-1189 (La. 6/30/95), 658 So.2d [683] at 687; State v. Lee, 559 So.2d 1310, 1316 (La. 1990); cited in State v. Turner, 96-845 (La.App. 3 Cir. 3/5/97), 692 So.2d 612. As stated by our Supreme Court in State v. Hallal, 557 So.2d 1388 (La.1990), a challenge for cause should be granted, even when a prospective juror | ¡adeclares his ability to remain impartial when the juror’s response as a whole reveals facts from which biased, prejudice, or inability to render judgment according to the law may be reasonably implied.
The Louisiana Supreme Court recently addressed challenges for cause in State v. Kang, 2002-2812, (La.10/21/03), 859 So.2d 649, instructing the appellate court to show deference to the trial court’s conclusions in ruling on a challenge for cause. We find the instant case to be distinguishable from Kang. In Kang the trial judge rehabilitated the challenged juror and based on the rehabilitative questions and answers, concluded that the juror could be fair and impartial. In the instant case, when Mr. Lacoste was asked if he was going to be able to apply the presumption of innocence, he responded, “probably not”. There was no rehabilitation by the prosecutor or the trial judge. We find that the denial of the challenge for cause as to Mr. Lacoste was reversible error, hence the defendant’s conviction and sentence should be vacated and the matter remanded for a new trial.

Id. at 1033-34.

We find that the record supports the trial court’s denial of defense counsel’s challenges for cause for the prospective jurors above. Therefore, Defendant’s conviction and sentence are affirmed.

DECREE

Defendant’s convictions and sentence are affirmed.

AFFIRMED.

      . Pursuant to La.R.S. 46:1844(W), the victim’s initials are used to protect her identity.


source: Caselaw Access Project

author: MURPHY, J.

license: Public Domain

text:
    Nancy MOREL v. CHEEMA PROPERTIES, LLC, Cheema Three, LLC and ABC Insurance Company
    NO. 16-CA-666
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, NANCY MOREL, Salvador M. Brocato, III
    COUNSEL FOR DEFENDANT/AP-PELLEE, CHEEMA PROPERTIES, LLC AND CHEEMA THREE, LLC, Andre’ C. Gaudin, Ralph T. Rabalais
    Panel composed of Jude G. Gravois, Robert M. Murphy, and Hans J. Liljeberg
   MURPHY, J.

| plaintiff, Nancy Morel, has appealed the trial court judgment granting summary judgment in favor of defendants. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 25, 2014, plaintiff was injured when she tripped and fell at a Shell gas station in Metairie. Plaintiff filed suit against the gas station owners, Cheema Properties, LLC and Cheema Three, LLC.

In her deposition, plaintiff testified that she was born on April 29, 1930 and has been walking with a cane since having her knee replaced in 2001. She frequently went to this particular gas station for gas and always went inside of the store to pay for her gas before pumping the gas. On the morning that she fell, she noticed two hoses next to the curb where she had to step up to go into the store. She described the hoses as gray in color and two and a half to three inches in diameter. She elaborated that she could not recall if there were two hoses when she went into the store, but stated that there were two hoses when she exited the store. Plaintiff testified that when she came out of the store, the two hoses were “separated,” expounding “[tjhat’s where the problem was.” Plaintiff further testified “I looked to the handicap place to see if I can get out that way and I was blocked that way.. .1 said, well, I have things to do, so I have to go forward with my cane.” After trying unsuccessfully to move the hose with her cane, she tried to use her “cane to step over the hoses” and her right foot “caught the hose” causing her to fall. When questioned as to whether, after seeing the hoses upon exiting the store, she went back into the store to tell the cashier that her path to her car was blocked, plaintiff responded that she “didn’t think it was necessary.”

Relying on plaintiffs deposition testimony, defendants moved for summary judgment arguing that the hoses were open, obvious, and plainly visible to all who Rencountered them, and that they did not pose an unreasonable risk of harm to persons exercising ordinary care for their own safety. Plaintiff opposed the motion for summary judgment arguing: (1) that there are disputed facts surrounding the location of the hoses that moved and separated after plaintiff went into the store which indicate that the hoses did present an unreasonable risk of harm, (2) that defendants failed to preserve the video surveillance after being requested to do so by plaintiffs attorney within 30 days of the accident and there was a genuine issue of fact regarding defendant’s spoliation of the video surveillance, and (3) there is disputed evidence as to the identity of the person who placed the hoses in the parking lot and whether he was adequately supervised.

At the hearing on the motion for summary judgment, the trial court found that the only facts before the court that were material were those regarding the open and obvious nature of the alleged hazard. Noting plaintiffs deposition testimony that she tried to move the hose and then made a decision to go forward, the court found that the hoses were open and obvious and not unreasonably dangerous and granted summary judgment in favor of defendants. This timely appeal followed.

LAW AND DISCUSSION

The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for trial. Schultz v. Guoth, 10-0343 (La. 01/19/11), 57 So.3d 1002, 1005. The procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). The motion shall be granted when the memorandum and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The burden of proof is on the party moving for summary judgment. La. C.C.P. art. 966(D)(1). However, if the mover will not bear the burden of proof at trial on the |sissue that is before the court on the motion for summary judgment, the mover is not required to negate all essential elements of the adverse party’s claim, action or defense, but rather to point out to the court that there is an absence of factual support for one or more such essential elements. Id. The burden then shifts to the adverse party to produce factual support sufficient to establish a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Jones v. Estate of Santiago, 03-1424 (La. 04/14/04), 870 So.2d 1002, 1006.

A de novo standard of review is required when an appellate court considers rulings on summary judgments motions, using the same criteria that governs the district court’s determination of whether summary judgment is appropriate, i.e,, whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Bank of New York Mellon v. Smith, 15-0530 (La. 10/14/15), 180 So.3d 1238, 1243.

In her Petition for Damages, plaintiff alleged that the defendants were negligent in creating a hazard of allowing hoses to be laid across the walkway without notice to its patrons, citing La. C.C. art. 2315. 2317, and 2317.1. La. C.C. art. 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

|4Thus, to prove liability for an unreasonably dangerous defect, a plaintiff has the burden to show that the thing was in the custodian’s custody or control, it had a vice or defect that presented an unreasonable risk of harm, the defendant knew or should have known of the unreasonable risk of harm, and the damage was caused by the defendant. La. C.C. art. 2317.1. Summary judgment is not precluded in cases where the plaintiff is unable to produce factual support for his or her claim that a complained-of condition or thing is unreasonably dangerous. Allen v. Lockwood, 14-1724 (La. 02/13/15), 156 So.3d 650, 652. In the instant case, it is undisputed that plaintiff was injured when she tripped over the hoses and that defendants had custody of the hoses and knew of their presence. Thus, the issue to be determined in this case is whether a material issue of fact exists as to whether the condition complained of, i.e., the hoses, constituted a defect and/or an unreasonably dangerous condition.

To determine whether a condition is unreasonably dangerous, courts are required to consider the following factors in the risk-utility test: (1) the utility of the complained-of condition, (2) the likelihood and magnitude of ham, including the obviousness and apparentness of the condition, (3) the cost to prevent the ham, and (4) the nature of the plaintiffs activities in terns of social utility or whether the activities were dangerous by nature. Bufkin v. Felipe’s La., LLC, 14-288 (La. 10/15/14), 171 So.3d 851, 856.

Regarding factor one, there is no dispute that there is utility in defendants’ keeping the exterior of their building clean. Regarding factor two, the likelihood and magnitude of harm and the obviousness and apparentness of the condition, plaintiffs deposition testimony indicates that she saw the hoses and was aware that they could cause her harm. Plaintiff testified then when she came out of the store after paying for her gas, “there were two” hoses. She went on to state: “They were | ^separated. That’s where the problem was.” Plaintiff further testified that before she started to step over the hoses, she tried to move one hose stating: “Because the hose was separated and I tried to push the hose back with my cane and I couldn’t do it.” Plaintiff elaborated that the handicap ramp was also blocked “[s]o I said, well, I have things to do, so I have to go forward with my cane. So I tried to use my cane to step over the hoses and that’s when I fell.” Plaintiff testified in her deposition that she was not sure of the exact mechanism of her fall; she was sure that it was not her cane that got tangled in the hose, stating “if anything it was my right foot.” When questioned as to whether she went back into the store and told the cashier that her path was blocked when she exited the store and saw the hoses, plaintiff responded: “No. I didn’t think it was necessary.”

Our jurisprudence has recognized that landowners generally have no duty to protect against that which is obvious and apparent. In order for an alleged hazard to be considered obvious and apparent, this Court has consistently stated the hazard should be one that is open and obvious to everyone who may potentially encounter it. Bufkin, supra at 856,; Pryor v. Iberia Par. Sch. Bd„ 10-1683 (La. 03/15/11), 60 So.3d 594, 596.

In Bufkin, the plaintiff was a pedestrian who was struck by a bicyclist when he stepped out from behind a construction dumpster that had been placed on the sidewalk. The plaintiff sued the contractor who placed the dumpster on the sidewalk, claiming the dumpster blocked his vision, creating an unreasonably dangerous condition. In moving for summary judgment, the defendant argued that the dumpster was obvious and apparent and did not create an unreasonable risk of harm because the risk it posed was easily avoidable by the exercise of ordinary care. The Supreme Court found that any vision obstruction caused by the dumpster to a pedestrian crossing the street was obvious and apparent and ^reasonably safe for persons exercising ordinary care and prudence. The Court concluded that the defendant had no duty to warn of the obstruction presented to pedestrians by the dumpster.

Pryor, supra, involved a plaintiff who had been declared “mobility impaired” and walked with a cane. The plaintiff went to a football game and in ascending the bleachers noted that the space between the first and second seat boards was eighteen inches while the space between the other seat boards was eight inches. To ascend the bleaches, the plaintiff lay on her side and swung up one leg at a time to get from the first and second seat board, then stood up and ascended the remaining rows with assistance from her daughter. When the plaintiff went to descend the bleachers, she attempted to step down the eighteen-inch space between the first and second seat boards and fell, sustaining injuries. In reinstating the district court’s judgment finding that the bleachers did not present an unreasonable risk of harm, the Supreme Court found that the evidence established that the plaintiff was aware of the open and obvious risk. The Court found that the plaintiff could have easily avoided any risk by descending the bleachers in the same manner as she ascended the bleachers or by sitting on the other bleachers which had accommodations for persons with physical impairments.

In Roth v. New Hotel Monteleone L.L.C., 07-549 (La.App. 4 Cir. 1/30/08), 978 So.2d 1008, the seventy-five-year-old plaintiff suffered “from ambulatory problems” and walked with the assistance of a walker. During the first two days of his stay at the Monteleone, the plaintiff entered and exited the hotel via the Royal Street entrance, which requires ascending steps in the foyer to enter the hotel lobby, with the assistance of hotel staff. Id. at 1010. On the third day of his stay, the plaintiff fell while attempting to descend the lobby steps with his walker unassisted by anyone. Id. At trial,- the plaintiff testified that he decided to descend [7the steps alone because the hotel staff was busy assisting other guests. Id. When questioned as to how long, he waited for assistance before descending the steps without assistance, the plaintiff responded “I didn’t wait long at all.” Id. at 1011. The trial court found no liability on the part of the Monteleone and dismissed the plaintiffs case. Id. On appeal, the plaintiff argued that there was no signage at the Royal Street entrance regarding a handicap entrance and he was unaware of the Monteleone’s handicap entrance on Bienville Street. Id. In affirming the trial court judgment, the Fourth Circuit found that it was the plaintiffs “impatience, not the lack of signage that caused him to fall.” Id. at 1011.

In the instant case, plaintiff testified that she saw the hoses and was aware that the hoses were a “problem,” yet she chose to “go forward with [her] cane” and fell. Given the specific facts and circumstances in this case, we find, as the Supreme Court did in Pryor, supra, that plaintiff was aware of the open and obvious risk that she could fall while attempting to step over the “separated” hoses and that she could have avoided this risk. Rather than going back into the store and informing the cashier that the path to her car was blocked by the hoses, plaintiff first tried to move the hose with her cane, then decided to attempt to step over the hoses. Plaintiff could have avoided the risk of falling by asking that the hoses be moved and/or by asking for assistance in walking back to her car. As in Roth, supra, it was plaintiffs impatience, not defendant’s failure to warn of an alleged hazard, which caused plaintiff to fall. The most significant undisputed fact in this case is that plaintiff saw the hoses and was aware that the hoses could cause her to fall. Given her physical limitations, a prudent person using ordinary care after seeing the hoses would have exercised whatever caution was necessary under the circumstances to avoid the risk she recognized was created by the alleged hazard.

[ sIn this case, once defendants pointed out that plaintiff would be unable to bear her burden to prove an essential element of her claim, i.e., that a duty was owed by defendants to her due to the alleged unreasonably dangerous condition presented by the hoses, then the burden shifted to plaintiff to demonstrate that she would be able to meet the burden at trial. Plaintiff failed to produce any evidence admissible on a motion for summary judgment to show that defendants did have a duty to warn of the alleged hazard created by the hoses.

Plaintiff’s arguments relative to defendants’ alleged failure to preserve the surveillance video are misplaced. There is no dispute over where and how plaintiff fell. Thus, the surveillance video is not relevant and whether or not it should have been preserved is not a material issue of fact precluding summary judgment. Likewise, the discrepancies over the testimony as to whether the individual performing the pressure washing worked for one day or more than one day, and whether he was adequately supervised, are not material issues of fact in this case.

CONCLUSION

For the foregoing reasons, we affirm the summary judgment dismissing plaintiff Nancy Morel’s claims against defendants Cheema Properties, LLC and Cheema Three, LLC.

AFFIRMED

      , La. C.C. art. 2315 provides in pertinent part: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

      . La. C.C. art. 2317 provides in pertinent part: "We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.”


author: HANS J. LILJEBERG, JUDGE

text:
    Clyde PRICE and his Wife, Mary Price v. CHAIN ELECTRIC COMPANY and Entergy Corporation and/or its Affiliate
    NO. 16-CA-597
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, CLYDE PRICE AND HIS WIFE MARY PRICE, Victor J. Woods, Jr.
    COUNSEL FOR DEFENDANT/AP-PELLEE, ENTERGY CORPORATION Ernest P. Gieger, Jr., Emily E. Eagan
    Panel composed of Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   HANS J. LILJEBERG, JUDGE

| plaintiffs, Clyde and Mary Price, appeal a summary judgment granted in favor of defendant, Entergy Louisiana, L.L.C. (“ELL”), finding that ELL was Mr. Price’s statutory employer and dismissing plaintiffs’ tort claims against ELL. For the following reasons, we reverse the summary judgment and remand this case for further proceedings.

FACTS AND PROCEDURAL HISTORY

On June 9, 2005, Chain Electric Company (“Chain”) and Entergy Services, Inc. (“ESI”) entered into a written agreement, entitled “Entergy Systemwide Multipurpose Maintenance, Modification and Construction General Services Agreement” (“the Agreement”), bearing contract number 10092965. Pursuant to the Agreement, ESI and Chain agreed that any “affiliate” of ESI could issue Contract Orders to Chain requesting Chain’s services. The parties further agreed that any and all Contract Orders issued by an affiliate were deemed to incorporate the provisions of the Agreement. The Agreement provides that an affiliate that issues a Contract Order to Chain is recognized as the statutory employer of Chain’s employees.

On June 1, 2011, Chain and ELL entered into a Contract Order, bearing contract number 10318822 and providing that Chain would perform services for ELL, commencing on June 1, 2011 and ending on May 31, 2013. This Contract Order indicates that it was issued pursuant to the Agreement, number 10092965, between ESI and Chain.

On November 28, 2012, while working as an employee of Chain, Clyde Price was assisting with excavation and trenching work for the purpose of adding additional line capacity for ELL. Mr. Price sustained injuries when an incident or “cave-in” occurred in the trench where he was working. On December 2, 2013, Mr. Price and his wife, Mary Price, filed this lawsuit against Chain, Entergy ^^Corporation, and/or its affiliate, alleging that defendants were negligent by failing to ensure that proper safety procedures were followed. Plaintiffs subsequently amended their petition to name ELL as a defendant, in lieu of Entergy Corporation.

On September 21, 2015, ELL filed a motion for summary judgment, seeking dismissal of plaintiffs’ claims against it, arguing that ELL was Mr. Price’s statutory employer and, thus, ELL is immune from tort claims, with worker’s compensation being plaintiffs’ exclusive remedy. ELL asserted that the clear language of the Agreement, the Contract Order, and La. R.S. 23:1061 establish that ELL was Mr. Price’s statutory employer.

In support of its motion for summary judgment, ELL submitted several exhibits, including the affidavits of Diane Ehlers and Randy Gegenheimer, as well as a copy of the Agreement and the Contract Order at issue. In Ms. Ehlers’ affidavit, she stated that she is employed as a Procurement Specialist, Sr. for ESI, that she has regular access to and is personally familiar with the business records of ESI, and that ELL is a subsidiary and affiliate of ESI and Entergy Corporation. In Mr. Gegen-heimer’s affidavit, he stated that he is a Construction Supervisor for ELL and that ELL is a subsidiary and affiliate of ESI and Entergy Corporation. He stated that the work Chain was to perform pursuant to its agreement with ELL was an integral part of ELL’s business and essential to ELL’s ability to supply electrical power to residences and businesses throughout Louisiana.

On November 20, 2015, plaintiffs filed a memorandum in opposition to ELL’s motion for summary judgment, in which they argued that ELL did not present sufficient proof to establish that it is an affiliate of ESI under the terms of the Agreement. They asserted that the affidavits of Ms. Ehlers and Mr. Gegenheimer contain con-clusory statements that ELL is a subsidiary and affiliate |sof ESI, but they do not address the requirements of the definition of “affiliate” set forth in the Agreement. Plaintiffs further argued that ELL could not have been an affiliate of ESI under the Agreement, because ELL was not in existence when the Agreement was executed. They asserted that because ELL has not shown that it is an affiliate of ESI, it was not the statutory employer of Mr. Price.

In response to plaintiffs opposition memorandum, ELL filed a reply memorandum, arguing that the language of the Agreement clearly shows that it was intended to apply to future entities, such as ELL. ELL submitted an affidavit of Mark Otts, the Assistant General Counsel for Corporate and Securities with ESI. Mr. Otts indicated that he has regular access to and is personally familiar with the business records of Entergy Corporation, and he stated that ELL is a subsidiary and affiliate of Entergy Corporation and an affiliate of ESI. In Ms affidavit, Mr. Otts noted that “affiliate” is defined in clause (b) of the Agreement as;

any corporation, company, partnership or other entity in the United States in which Entergy Corporation now or hereafter owns or controls, directly or indirectly, more than fifty percent (50%) of the ownership interest having the right to vote or appoint its directors or their functional equivalents.

Mr. Otts attached an Organizational Chart for Entergy Corporation to his affidavit. In his affidavit, Mr. Otts explained the orgamzational structure of the corporation and stated that Entergy Corporation owns all of the stock of ESI. He stated that Entergy Corporation also owns all the membership interests in Entergy Louisiana Holdings, L.L.C., and that En-tergy Louisiana Holdings, L.L.C. owns all of the membership interests in ELL.

ELL’s motion for summary judgment came for hearing before the trial court on February 23, 2016. At the conclusion of the hearing, the trial court found that ELL established that it is an affiliate of ESI under the Agreement and thus, ELL |4was the statutory employer of Mr. Price. The trial court granted summary judgment in favor of ELL and dismissed plaintiffs’ claims against it with prejudice. Plaintiffs appeal.

LAW AND DISCUSSION

On appeal, plaintiffs contend that the trial court erred 'by granting ELL’s motion for summary judgment, finding that ELL was the statutory employer of Mr. Price at the time of the accident. They assert that ELL did not prove that it was an affiliate of ESI pursuant to the terms of the Agreement. We agree.

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750; Bourgeois v. Boom-town, LLC of Delaware, 10-553 (La.App. 5 Cir. 2/15/11), 62 So.3d 166, 169. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Mbari-ka v. Bd. of Supervisors, 07-1136 (La.App. 1 Cir. 6/6/08), 992 So.2d 551, 561. A motion for summary judgment shall be granted if the motion, memoranda, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The burden of proof on a motion for summary judgment rests with the mover. La. C.C.P. art. 966(D)(1).

In the present case, as the mover, it was ELL’s burden to show that it was an affiliate pursuant to the Agreement and thus the statutory employer of Mr. Price, which would result in worker’s compensation being plaintiffs’ exclusive remedy. In support of its motion for summary judgment, ELL submitted the Agreement, Contract Order, amended and original petitions, and the affidavits of Ms. Ehlers and Mr. Gegenheimer. In their affidavits, Ms. Ehlers and Mr. Gegenheimer asserted that ELL is an affiliate of ESI and Enter-gy Corporation. However, they Rdid not address the requirements of the definition of “affiliate” as set forth in the Agreement, and they did not provide any specific facts as to how they determined that ELL met the definition of “affiliate” in the Agreement. They did not explain or show that “Entergy Corporation now or hereafter owns or controls, directly or indirectly, more than fifty percent (50%) of the ownership interest having the right to vote or appoint its directors or their functional equivalents,” or that ELL met any of the other provisions defining “affiliate" under the Agreement.

On February 16, 2016, ELL filed a reply memorandum to which it attached Mr. Otts’ affidavit and the. Organizational Chart for Entergy Corporation. However, the trial court should not have considered this evidence in support of ELL’s motion for summary judgment.

At the hearing on the motion Tor summary judgment, ELL’s counsel requested to offer, file, and introduce “Exhibits A through E” into evidence. The trial court replied that the exhibits that were “attached” had already been admitted. However, the documents attached to the reply memorandum- were not already admitted into evidence.

ELL’s motion for summary judgment was filed on September 21, 2015. At that time, La. C.C.P. art. 966(F)(2) provided, in pertinent part:

Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment. ... Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.

This article did not provide that any evidence attached to a reply memorandum was deemed admitted.

IfiWe note that La. C.C.P. art. 966 was amended by Acts 2015, No. 422, § 1, of the Louisiana Legislature, with an effective date of January 1, 2016. Similar to the language of this Article prior to this amendment, La. C.C.P. art. 966(D)(2) now reads, in pertinent part, “[t]he court may consider only those documents filed in support of or in opposition to the motion for summary judgment.” La. C.C.P. art, 966(B)(3) provides that “[n]o additional documents may be filed with the reply memorandum.” Comment (d) of La. C.C.P. art. 966 notes, “[tjhis Article continues the rule that no new documents may be filed with a reply memorandum.” Thus, under the language of La. C.C.P. 966, both before and after the 2015 amendments, only documents attached to the motion for summary judgment and opposition, not a reply memorandum, are deemed admitted.

Accordingly, in the present case, while the exhibits attached to ELL’s motion for summary judgment and plaintiffs’ opposition were deemed admitted pursuant to La. C.C.P. art. 966, the documents attached to the reply memorandum were not deemed admitted. Thus, because Mr. Otts’ affidavit and the Organizational Chart were not attached to the motion for summary judgment or otherwise properly admitted into evidence for consideration by the trial court, the trial court should not have considered them and this Court cannot consider these documents in its de novo review.

Based on our de novo review of the motion for summary judgment, opposition, and the exhibits attached to and properly admitted with the motion and opposition, we find that ELL did not meet its burden of proving that it was an affiliate under the Agreement, that plaintiffs’ exclusive remedy in this matter is worker’s compensation, or that it was entitled to judgment as a matter of law. Although Ms. Ehlers and Mr. Gegenheimer stated in their affidavits that ELL was an affiliate of ESI, without further evidence that ELL meets the definition of “affiliate” set forth in the Agreement, the evidence submitted in support of ELL’s |7motion for summary judgment was insufficient to show that ELL was entitled to summary judgment. Accordingly, we reverse the summary judgment granted by the trial court.

DECREE

For the foregoing reasons, we reverse the summary judgment granted in favor of ELL, and remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED

      . Plaintiffs also alleged that Chain intentionally exposed Mr. Price to a dangerous work-site. However, Chain was dismissed from this lawsuit on an exception of no cause of action based on a finding that plaintiffs' exclusive remedy against Chain was for worker’s compensation.

      . Plaintiffs also filed a cross motion for summary judgment, seeking a determination that Mr. Price was not a statutory employee of ELL.

      . The transcript does not indicate which documents were labeled Exhibits A through E. However, it is noted that the exhibits attached to ELL's motion for summary judgment were labeled A through D, and one additional exhibit, Mr. Otts' affidavit with the Organizational Chart, was attached to and referred to as Exhibit E in ELL’s reply memorandum.


author: WICKER, J.

text:
    STATE of Louisiana v. Ahmad WILEY
    16-KA-645
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2017

      Paul D. Connick, Jr., Terry M. Bou-dreaux, COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA.
    Prentice L. White, COUNSEL FOR DEFENDANT/APPELLANT, AHMAD WILEY.
    Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson
   WICKER, J.

11 Defendant, Ahmad Wiley, appeals his convictions and sentences for manslaughter and obstruction of justice. Defendant’s appointed appellate counsel has filed an appellate brief pursuant to Anders v, California and has further filed a motion to withdraw as counsel of record. For the following reasons, we affirm defendant’s convictions and grant counsel’s motion to withdraw. However, an error patent review reflects that the trial court imposed indeterminate sentences. Accordingly, we vacate defendant’s sentences and remand this matter to the trial court for resentenc-ing.

STATEMENT OF THE CASE

On December 18, 2014, a Jefferson Parish Grand Jury indicted defendant with second degree murder in violation of La. R.S. 14:30.1 (count one) and obstruction of justice in violation of La. R.S. 14:130.1 (count two). On January 8, 2015, defendant was arraigned and pled not guilty to the charges against him. Subsequently, in connection with a plea agreement, the State amended count one of the indictment to charge defendant with manslaughter in violation of La. R.S. 14:31. On June 24, 2016, defendant withdrew his not guilty pleas and pled guilty to the amended manslaughter charge and the obstruction of justice charge. On the same date, the trial court sentenced defendant to twenty-five years imprisonment at hard labor on count one and twenty years imprisonment at hard labor on count two. Defendant filed a timely motion for appeal.

FACTUAL BACKGROUND

Defendant pled guilty without proceeding to trial, but the State provided the following factual basis for each charge during defendant’s guilty plea colloquy:

12If the State would proceed to trial, it would prove beyond a reasonable doubt that the defendant, Ahmad Wiley, on September the 11th, 2014, while in Jefferson Parish, violated La. R.S. 14:31 in that he committed the manslaughter of Alontay Simmons. Furthermore.. .defendant violated La. R.S. 14:130.1 in that he intentionally removed a firearm from the location of that incident having good reason to believe that that firearm would have been the subject of an investigation by state and local law enforcement officers.

ANDERS BRIEF

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4th Cir. 1990), defendant’s appointed appellate counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241, 242 (per curiam), asserting that he has thoroughly reviewed the trial court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds the case to be wholly frivolous after a conscientious examination of it. In State v. Jyles, the Louisiana Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, 704 So.2d at 241.

An appellate court must conduct an independent review of the trial court record to determine whether the appeal is wholly frivolous. “When counsel files an Anders brief, an appellate court reviews several items: a) the Bill of Information to ensure that the charge is proper, b) all minute entries to ensure that defendant was present at all crucial stages of the prosecution, c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a labasis for appeal.” State v. Dufrene, 07-823 (La.App. 5 Cir. 2/19/08), 980 So.2d 31, 33. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In this case, appointed appellate counsel’s brief demonstrates that after a detailed review of the record, counsel could find no non-frivolous issues to raise on appeal. The State agrees and urges this Court to grant defense counsel’s request to withdraw as counsel of record. An independent review of the record supports counsel’s assertion that there are no non-frivolous issues to raise on appeal.

First, the amended indictment filed properly charged defendant with manslaughter in violation of La. R.S. 14:31 and obstruction of justice in violation of La. R.S. 14:130.1. As required, the indictment sufficiently identified defendant and clearly, concisely, and definitely stated the essential facts constituting the crimes charged. See La. C.Cr,P. arts. 464-66. Second, the minute entries reflect that defendant appeared at each stage of the proceedings against him. Defendant and his counsel appeared in open court for defendant’s arraignment, guilty plea proceeding, and sentencing.

Third, defendant pled guilty to the charges against him. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boy-kin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id. In such a case, the |4defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Dixon, 449 So.2d 463, 464 (La. 1984).

The record reflects that defendant was aware he was pleading guilty to the charged offenses, manslaughter and obstruction of justice. The trial court advised defendant of the nature of the offenses to which he pled guilty. Defendant was informed during the colloquy and in the waiver of rights form of the maximum sentence for both crimes and the actual sentences that would be imposed pursuant to the guilty pleas. The trial court advised defendant of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Defendant was advised of these rights by means of the waiver of rights form, which he signed, and during the colloquy with the trial judge. During his guilty plea colloquy and in his waiver of rights form, defendant indicated that he had not been forced or coerced into entering his guilty plea. After the colloquy with defendant, the trial judge was convinced that defendant’s pleas were knowingly, intelligently, and voluntarily made.

Last, defendant’s sentences—imposed pursuant to a plea agreement—do not present any non-frivolous issues on appeal. A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea. La. C.Cr.P. art. 881.2(A)(2). Because defendant’s | ^sentences were imposed in conformity with a plea agreement which was set forth in the record at the time of the plea, defendant cannot seek review of his sentences on appeal. See State v. Smith, 09-10.43 (La.App. 5 Cir. 6/29/10), 43 So.3d 261, 265.

Moreover, defendant’s plea agreement was beneficial to him in that he was originally charged with second degree murder for which, if convicted, he would have received a mandatory life sentence. Pursuant to the plea agreement, the State amended the second-degree murder charge to a manslaughter charge, for which he faced a forty year maximum sentence but received a twenty-five year sentence.

Upon an independent review of the record, we find no non-frivolous issues for appeal. Defendant’s appointed appellate counsel has adequately demonstrated his review and analysis of the record in this case. An independent review of the record supports counsel’s assertions set forth in his Anders brief. Therefore, we find that counsel’s request to withdraw as counsel of record should be granted.

ERRORS PATENT DISCUSSION

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

First, the commitment indicates that the trial judge advised defendant that he had “two (2) years after judgement of conviction and sentence has become final to seek post-conviction relief.” However, the transcript reflects that the trial judge advised defendant that he had “two years after the judgment and sentence becomes |Bfinal in which to seek post-conviction relief.” The failure of the trial judge to advise a defendant that the prescriptive period for seeking post-conviction relief runs from the time his conviction and sentence become final renders the advisal incomplete. State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598. When there is a discrepancy between the minute entry or commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983); State v. Pham, 12-635 (La.App. 5 Cir. 5/16/13), 119 So.3d 202, 227-28.

It is well-settled that if a trial court provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief. See State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, unit denied, 09-0248 (La. 10/30/09), 21 So.3d 272; State v. Davenport, 08-463 (La.App. 5 Cir. 11/25/08), 2 So.3d 445, 451, unit denied, 09-0158 (La. 10/16/09), 19 So.3d 473; State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, unit denied, 11-1753 (La. 2/10/12), 80 So.3d 468; State v. Taylor, 12-25 (La.App. 5 Cir. 6/28/12), 97 So.3d 522, 538; and State v. Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608.

Accordingly, we advise defendant by way of this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

Second, the record reflects an inconsistency between the commitment and the transcript concerning the sentences imposed, rendering defendant’s sentences indeterminate. The transcript reflects that the trial judge ordered defendant’s two sentences to run concurrently with “any other sentence.” The commitment, however, more specifically states that the trial judge ordered the two concurrent 17sentences to run concurrently with “any other sentence defendant may be serving.” The transcript prevails. Lynch, swpra. La. C.Cr.P. art. 879 provides that “[i]f a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.” We find that defendant’s sentences are indeterminate because the trial court did not specify whether the sentences were ordered to run concurrently with specific sentences imposed or simultaneously with any other sentences imposed that defendant may have been serving at the time of his sentencing. Accordingly, we vacate defendant’s sentences and remand this matter to the trial court to clarify defendant’s sentences. See State v. Gardner, 16-13 (La. App. 5 Cir. 9/8/16), 202 So.3d 513, 518.

CONVICTIONS AFFIRMED; SENTENCES VACATED; REMANDED

      . 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Defendant filed omnibus pretrial motions. The record reflects that, following a hearing, the trial judge denied defendant's motion to suppress his confession but that other motions filed were never ruled upon. Defendant did not object to the trial court’s failure to rule on his pre-trial motions prior to pleading guilty and, thus, those motions are considered waived. See State v. Corzo, 04-791 (La.App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

      . The record reflects that the trial judge failed to inform defendant of the minimum sentences on either count. La. C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. Violations of La. C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations, however, are subject to harmless error analysis. See State v. Goff, 13-866 (La. App. 5 Cir. 04/09/14), 140 So.3d 146, 151; State v. Guzman, 99-1528 and 99-1753 (La. 5/16/00), 769 So.2d 1158, 1164-66; State v. Gilliam, 01-748 (La.App. 5 Cir. 1/15/02), 807 So,2d 1024, 1027, writ denied, 02-0512 (La. 11/1/02), 828 So.2d 562. In determining whether a violation of Article 556.1 is harmless, the inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty. Gilliam, 807 So.2d at 1027. Any variance from the procedure required by Article 556.1 that does not affect the substantial rights of the accused shall not invalidate the plea. La. C.Cr.P. art. 556.1(E), We find this error to be harmless under the facts of this case, where defendant was advised of the sentences he would receive and did in fact receive those sentences. Moreover, the record reflects that the plea agreement was beneficial to defendant, resulting in the amended manslaughter charge when defendant faced a possible mandatory life sentence under the second degree murder charge.

      . Nevertheless, a review of the record reflects that defendant’s sentences fall within the sentencing ranges statutorily prescribed. See La. R.S. 14:31 and La. R.S. 14:130.1.

      . The testimony presented at the hearing on defendant’s motion to suppress his confession provided that defendant and the victim, who was defendant’s cousin, were involved in the attempted armed robbery of two Asian males on the date of the charged crimes. The testimony provided that, as the two Asian males fled the scene, both defendant and the victim, Simmons, began shooting at the two Asian males. At some point, Simmons walked into defendant’s line of fire and was fatally shot.

      . This Court has recognized this distinction in sentencing, finding the "open-ended” statement that a sentence be served with "any other sentence” is distinguishable from a sentence ordered to be served concurrently with "any sentence [the defendant] may be serving,” requiring correction. See State v. Jones, 13-367 (La.App. 5 Cir. 12/27/13), 131 So.3d 1065, 1070.


text:
    STATE of Louisiana v. Christopher L. BARR
    NO. 16-KA-715
    Court of Appeal of Louisiana, Fifth Circuit.
    April 12, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gail D. Schlosser, Rhonda J. Goode-Douglas
    COUNSEL FOR DEFENDANT/APPELLANT, CHRISTOPHER L. BARR, Bertha M. Hillman
    Panel composed of Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg
   MURPHY, J.

11 Defendant, Christopher Barr, appeals his convictions for possession of heroin, between 28-200 grams, and possession of Tramadol without a prescription. Defendant also appeals his sentence of 20 years as a second felony offender and his concurrent five year sentence for possession of Tramadol. For the reasons that follow, we affirm both convictions and sentences, remand for the correction of the commitment and uniform commitment order, and we grant appellate counsel’s motion to withdraw as attorney of record.

STATEMENT OF THE CASE

On February 9, 2015, the Jefferson Parish District Attorney’s office (“the State”) filed a bill of information charging defendant with one count of possession of heroin, between 28-200 grams, in violation of La. R.S. 40:966.D. In count two of the bill of information, defendant was charged with one count of possession of Tramadol without a prescription, a violation of La. R.S. 40:1238.1. On February 20, 2015, defendant pled not guilty at arraignment. On January 27, 2016, defendant withdrew his not guilty plea, pled guilty as charged to both counts, and was sentenced to 20 years at hard labor on count one, and five years at hard labor on count two, with both sentences to run concurrently. Also, on that same date, the State filed a multiple bill of information that alleged defendant was a second felony offender, to which defendant stipulated. Pursuant to a plea agreement, the trial court vacated the previously imposed sentence for count one, and resentenced defendant as a multiple offender to 20 years at hard labor without benefit of probation or suspension of sentence, with each of defendant’s sentences to run concurrently. On August 31, 2016, defendant filed a Uniform Application For bPosb-Conviction Relief seeking an out of time appeal, which the trial court granted on September 6, 2016. The instant appeal follows.

FACTS

Because the instant convictions were a result of guilty pleas, the underlying facts were not fully developed at trial. The bill of information in this case alleged that on January 15, 2015, defendant knowing or intentionally possessed heroin, between 28-200 grams, and also knowingly or intelligently possessed Tramadol without a prescription. In addition, an “Arrest Report and Probable Cause Affidavit” in the record indicates that the offenses took place in Jefferson Parish.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), appointed counsel requests permission to withdraw as counsel of record.

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

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Id.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford, 95-929, at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal points) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

ANALYSIS

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel indicates that defendant pled guilty pursuant to a counseled plea agreement, and that the trial |4court’s colloquy was thorough and complete. Appellate counsel has filed a motion to withdraw as attorney of record and has mailed defendant a copy of her brief.

The State asserts that the record shows that prior to defendant’s guilty plea, the district court fully explained to him the rights he was waiving, and defendant affirmed his understanding. The State agrees with counsel that defendant made a knowing and voluntary act of pleading guilty. Further, defendant was informed of his right to appeal. The State concludes, therefore, that defendant’s convictions and sentences should be affirmed and that appellate counsel should be allowed to withdraw.

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

The record shows that defendant was present at the original sentencing and his re-sentencing as a multiple offender, and was represented by counsel. Prior to sentencing and re-sentencing as a multiple offender, the trial court entered into a colloquy with defendant wherein the court advised defendant of his Boykin rights and asked defendant if he understood that he was waiving those rights by pleading guilty. Defendant was advised of the sentences he would receive if he pled guilty. Defendant’s sentences were in the statutory range for violations of La. R.S. 40:966.D and La. R.S. 40:1238.1, and as a second felony offender under La, R.S. 15:529.1. The record shows that defendant’s plea bargain resulted in an agreement from the State to file a multiple offender bill of information alleging defendant to be a second felony offender instead of a fourth felony offender. Furthermore, La. C.Cr.P, art. 881.2(A)(2) provides that a defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the 1 srecord at the time of the plea. Defendant was also properly advised of the time limitations for filing post-conviction relief.

Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, we affirm defendant’s sentences and convictions and grant appellate counsel’s motion to withdraw as attorney of record.

ERRORS PATENT DISCUSSION

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

First, we note that the commitment in this case fails to indicate that defendant’s sentence for count two is to be served at hard labor, which is inconsistent with the trial court’s order during sentencing. Next, while the trial court ordered that defendant be given credit for time served “pursuant to Article 880 of the Code of Criminal Procedure,” the commitment more specifically provides that defendant was “given credit for time served from date of initial arrest until today for each day defendant actually served.” Further, the transcript and the uniform commitment order reflect that the trial judge recommended defendant for any self-help programs. However, the commitment fails to reflect this recommendation. When there is a discrepancy between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983).

LWe also note that the transcript, the commitment, and the uniform commitment order appear inconsistent regarding the concurrent nature of defendant’s original sentences. The commitment provides that “the above sentence is to run concurrently with 14-4182 and 15-766 and with any time already serving.” The uniform commitment order also includes as a sentence condition: “Concurrent with 14-4182 and 15-766 and with any time already serving.” The transcript, however, provides that defendant’s sentences in the instant matter were to run “concurrently with each other and concurrently with [his] sentences in Matter Number 14-4182.” Again, when there is a discrepancy between the transcript and the minute entry, the transcript prevails. Lynch, supra.

Accordingly, to ensure accuracy in the record, we remand the case for correction of the commitment and the uniform commitment order and direct the Clerk of Court to transmit the corrected commitments to the officer in charge of the institution to which defendant has been sentenced as well as to the legal department of the Louisiana Department of Public Safety and Corrections. State v. Long, 12-184 (La.App. 5 Cir. 12/11/12), 106 So.3d 1136.

DECREE

Accordingly, for the reasons provided herein, defendant’s convictions and sentences are affirmed, the matter is remanded for corrections to the commitment ancl uniform commitment order, and appellate counsel’s motion to withdraw as attorney of record is hereby granted.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

      . At the time of his guilty pleas and sentencing in the instant case, defendant had other pending charges against him in case numbers 14-4182, 15-760, and 15-766. While appointed counsel references the sentences for these other charges in her brief, we note that relator’s APCR only sought an out of time appeal in case 15-497. Accordingly, we will only address issues related to case 15-497.

      . The minute entry from January 27, 2016, indicates that defendant's multiple offender sentence was ordered to “run concurrently with anytime [sic] already serving and with 14-4182 and 15-760.”

      . In Bradford, supra, this Court adopted the procedures outlined in State v. Benjamin, 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per cu-riam).

      .The United States Supreme Court reiterated Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until January 22, 2017, to file a pro se supplemental brief. Defendant did not file a pro se brief.

      . Boykin v. Alabama, 393 U.S. 820, 89 S.Ct. 200, 21 L.Ed.2d 93 (1968).