author: PER CURIAM Hughes, J. concurring.

text:
    STATE of Louisiana v. Reggie Patrick THIBODEAUX
    No. 2017-KK-0705
    Supreme Court of Louisiana.
    December 6, 2017
   PER CURIAM

Defendant, who was charged with several felony and misdemeanor drug offenses as well as with arresting arrest, and who was represented by a public defender, filed a pro-se motion to suppress the evidence. The trial court denied the motion, stamping it, "Motion denied: Defendant herein is represented by counsel." Thereafter, defendant filed additional pro-se motions (i.e., a motion for production of discovery documents and motion for hardship release or for bail reduction), each of which received the same stamped denial by the trial court. Defendant pro-se then applied to the court of appeal seeking review, inter alia, of the denial of his motion to suppress. The court of appeal granted the application in part and directed the trial court to conduct a hearing to afford defense counsel an opportunity to adopt the motion. Citing State v. Melon , 95-2209 (La. 9/22/95), 660 So.2d 466, the court of appeal found that "[l]ower courts are required to accept and consider pro se filings from represented defendants in a preverdict context whenever doing so will not lead to confusion at trial." State v. Thibodeaux , 17-0232 (La. App. 1 Cir. 3/31/17), 2017 WL 1194003 (unpub'd).

In State v. Bodley , 394 So.2d 584, 593 (La. 1981), this Court found that a defendant has no constitutional right to be both represented and representative:

While an indigent defendant has a right to counsel as well as the opposite right to represent himself, he has no constitutional right to be both represented and representative. Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ; United States v. Daniels , 572 F.2d 535 (5th Cir. 1978) ; United States v. Conder , 423 F.2d 904 (6th Cir. 1970), U.S. cert. den. 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267 ; United States v. O'Looney , 544 F.2d 385 (9th Cir. 1976), U.S. cert. den. 429 U.S. 1023, 97 S.Ct. 642, 50 L.Ed.2d 625. With regard to trial tactics, the federal courts have clearly stated that once a person is represented by counsel, he is bound by his attorney's decisions at trial unless the attorney's actions effectively deny the defendant his Sixth Amendment right to assistance of counsel. United States v. Daniels, supra ; see also Estelle v. Williams , 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). While this rule is an interpretation of a federal statute, it sets up the constitutional boundaries of a trial court's discretion. Using the rule, federal courts have stated that a defendant has no right to enter his own personal objections to testimony after he has accepted the pre-trial assistance of counsel, Conder, supra ; no fundamental right to require that a particular witness be called at trial, Daniels, supra ; nor a right to object to his attorney's decision to request a special verdict in a criminal case, O'Looney, supra .

Thereafter, although the court in Bodley largely focused on the importance of avoiding confusion at trial, several circuit courts began to refuse to consider the appellate pro-se filings of represented defendants on direct review. Therefore, this court clarified in State v. Melon , 95-2209 (La. 9/22/95), 660 So.2d 466 (per curiam), that " State v. Bodley , 394 So.2d 584 (La.1981), provides a rule designed to preserve order and consistency at trial and does not purport to apply in a post-verdict context." The Melon court, however, exceeded the scope of the certified question presented and also held that "the lower courts must also accept and consider filings from represented defendants in a preverdict context whenever doing so will not lead to confusion at trial." This terse reference in Melon to "confusion at trial" was not, however, intended to draw a bright line at trial or require trial courts to consider all pro-se pretrial filings by represented defendants. Instead, it was intended to curtail confusing or contradictory motions with the potential to disrupt the trial process or result later in reversible error.

While Melon can be misconstrued and applied too broadly, the trial court here erred in contrast by reflexively rejecting all pro-se filings by represented defendants without reference to their disruptive potential. We find that State v. Alexander , 07-1236 (La. App. 3 Cir. 4/9/08), 980 So.2d 877, strikes a delicate balance. The represented defendant in Alexander filed a pro-se speedy trial motion, which motion can present serious legal ramifications and complex considerations few pro-se litigants are equipped to weigh carefully. To balance Melon , its underlying considerations, Bodley , and its holding, the court of appeal crafted the following procedure:

In order to address and alleviate the problem in this case, Defendant's writ must be granted, made peremptory, and the trial court must first advise Defendant of his constitutional right to counsel, and then the trial court must conduct a contradictory hearing to determine: (1) if Defendant is capable of representing himself; and (2) if so, does Defendant desire to represent himself and forego representation by defense counsel. If the trial court finds that Defendant is not competent or does not have the capacity to represent himself, then he is not allowed to represent himself. If the trial court determines that Defendant knowingly, willingly, and intelligently chooses to represent himself, in effect waiving counsel, then he may do so and will not have the benefit of counsel. At that point, the trial court must advise Defendant of the consequences of foregoing legal representation and the dangers and disadvantages as a result thereby. See State v. Frisella , 03-1213 (La.App. 5 Cir. 2/23/04), 868 So.2d 871. Thereafter, the trial court must relieve counsel of any further representation of Defendant's interest in this matter and then entertain Defendant's pro se motions. This does not in any way restrict Defendant's access to the court to address any conflict or problems with counsel in pre-trial and trial matters.

Alexander , 07-1236, pp. 4-5, 980 So.2d at 880.

We find the procedure crafted by the court of appeal in Alexander best safeguards a defendant's rights to due process, access to the courts, and to the assistance of counsel, while also affording the trial court the opportunity to prevent confusion or disruption of the trial process that is risked by the filing of pro-se motions by a represented defendant. That is not to say, however, that a hearing like that envisioned in Alexander will be necessary every time a represented defendant files a pro-se motion and defendant must in each instance necessarily be asked to choose between continued representation of counsel or having his pro-se motion considered. In many instances, counsel may simply wish to adopt the pro-se filing or the trial court can review the motion and assess its potential for confusion, disruption, or reversible error. Regardless, however, the trial court's use of a stamp to reflexively deny all pro-se filings by a represented defendant is inadequate to safeguard the defendant's rights while ensuring the efficient and orderly administration of criminal justice.

Therefore, we reverse the court of appeal's ruling and remand to the trial court for further proceedings consistent with the views expressed herein. The trial court is directed to determine whether defense counsel wishes to adopt defendant's pro-se motion to suppress and, if counsel does not, evaluate its disruptive potential in light of Melon before determining whether to conduct a hearing consistent with Alexander .

REVERSED AND REMANDED

Hughes, J. concurring.

I write to emphasize this court's guidance that an Alexander hearing is not required in response to every pro se filing. I believe that Bodley and Melon rightly focus on confusion at trial . Forcing a defendant to give up the right to counsel prematurely will not lead to an efficient administration of justice. Any good defense lawyer worth his or her salt will file a motion for bond reduction, motion for preliminary exam, and motion to suppress at the earliest opportunity. 60 days, mentioned at oral argument, is too long. Motions to quash or for a speedy trial may require a little more thought.

When a defendant is forced to file motions because defense counsel has failed to do so promptly, a little common sense and advocacy can go a long way. Read the motion. Talk to the client. Give advice. If the client insists on doing it his or her own way, so be it. The consequences are then on the client. A stamped denial and a public defender litigating against his own client present embarrassing optics, and are not worthy of the duty of court and counsel.

      Retired Judge Burrell Carter assigned as Justice ad hoc, sitting for Weimer, J., recused.

      The court of appeal framed the problem as follows:
      Though we acknowledge the trial court's rationale that allowing pre-trial conflicting motions between defense counsel and Defendant pro se would lead to confusion, Defendant has a constitutional right to have a speedy trial. U.S. Const. amend. VI ; La. Const. art. 1, § 16. At present, Defendant is in limbo.
      This court is well aware of the numerous cases wherein defendants have filed pro se motions which have been denied by the trial court due to said defendants already being represented by court-appointed or retained counsel. When a writ is taken from these cases, the appellate court customarily grants the writ, makes it peremptory, and remands the case to the trial court for consideration and ruling in accordance with Melon , 660 So.2d 466, as was done in this case. However, that does not solve the problem.
      In Melon , our supreme court specifically relied on State v. Bodley , 394 So.2d 584 (La.1981). In Bodley , our supreme court held: "While an indigent defendant has a right to counsel as well as the opposite right to represent himself, he has no constitutional right to be both represented and representative." Id. at 593. In the case at bar, Defendant seeks to do just that. Defendant seeks to be both represented and representative. He has in place legal representation by defense counsel, yet he wants to represent himself, in part, as evidenced by the filing of his pro se motions.
      Alexander , 07-1236, pp. 3-4, 980 So.2d at 880.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Jubbard PRICE
    State of Louisiana v. Jubbard Price
    NO. 2017-K-0520
    Supreme Court of Louisiana.
    February 2, 2018
   Granted. See Order Attached.

Attachment

SUPREME COURT OF LOUISIANA

No. 2017-K-0520

STATE OF LOUISIANA

VERSUS

JUBBARD PRICE

CONSOLIDATED WITH

STATE OF LOUISIANA VERSUS JUBBARD PRICE

On Writ of Certiorari and/or Review

Criminal District Court, Parish of Orleans, No. 511-557, Division A;

Court of Appeal, Fourth Circuit, No. 2015-KA-0364 C/W 2015-K-0082.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit-"It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.

Witness the Honorable Justices of the Supreme Court of the State of Louisiana, on this 2nd day of February, in the year of our Lord, Two Thousand-Seventeen.

John Tarlton Olivier

Clerk of Court

/s/

Deputy Clerk of Court


text:
    STATE of Louisiana v. Catina CURLEY
    NO. 2016-KP-1708
    Supreme Court of Louisiana.
    February 23, 2018
   Granted. See Order Attached.

Attachment

SUPREME COURT OF LOUISIANA

No. 2016-KP-1708

STATE OF LOUISIANA

VERSUS

CATINA CURLEY

On Writ of Certiorari and/or Review, Criminal District Court, Parish of Orleans, No. 491-907, Division K; Court of Appeal, Fourth Circuit, No. 2016-K-0604.

And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit-"It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."

Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.

Witness the Honorable Justices of the Supreme Court of the State of Louisiana, on this 23RD day of February, in the year of our Lord, Two Thousand-Seventeen.

/s/

John Tarlton Olivier

Clerk of Court

/s/

Deputy Clerk of Court


text:
    STATE EX REL. Corei K. GUIDRY a/k/a Corey Guidry v. STATE of Louisiana
    NO. 2016-KH-1777
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    STATE EX REL. Wesley James MONROE v. STATE of Louisiana
    No. 2016-KH-1615
    Supreme Court of Louisiana.
    February 9, 2018
    Not considered. See La.S.Ct.R. IX, § 6.
   HUGHES, J., would grant.


author: WEIMER, J., recused.

text:
    STATE EX REL. Paul DION, Jr. v. STATE of Louisiana
    No. 2016-KH-2250
    Supreme Court of Louisiana.
    February 9, 2018
    Not considered. See La.S.Ct. Rule IX, § 6.
   WEIMER, J., recused.


text:
    STATE EX REL. John H. WILLIAMS, Jr. v. STATE of Louisiana
    NO. 2016-KH-1896
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


text:
    Frank B. ALLAIN, et al. v. EXXON MOBIL CORPORATION, Devon Louisiana Corporation, Samson Resources Company, Foster-Brown Operations, Incorporated, Bridas Energy USA, Inc. and Oleum Operating Company, L.C.
    NO. 2017-CC-2099
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


text:
    Angele Schott THOMPSON, Wife of and Alphonse M. Thompson, Jr. v. FRF PROPERTIES, LLC and Jody Ferchaud
    NO. 2017-C-2115
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 17-PDB-060
    NO. 2017-OB-2063
    Supreme Court of Louisiana.
    February 9, 2018
    Leave to appeal denied.


author: GENOVESE, J., recused.

text:
    STATE EX REL. Brandon S. LAVERGNE v. STATE of Louisiana
    NO. 2016-KH-2043
    Supreme Court of Louisiana.
    February 9, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See, e.g., State ex rel. Lavergne v. State, 16-0469 (La. 4/22/16), 192 So.3d 725.
   GENOVESE, J., recused.


text:
    STATE EX REL. Thomas BEAMON v. STATE of Louisiana
    NO. 2016-KH-1906
    Supreme Court of Louisiana.
    February 9, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Beamon v. State, 15-2026 (La. 2/17/17), 211 So.3d 1158.


text:
    GULF COAST BANK & TRUST COMPANY, INC. v. Gilles J. CASSE, GMD International, Inc. and Damon Baldone
    NO. 2017-C-2109
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Andre FRANCIS, et al.
    NO. 2018-KK-0198
    Supreme Court of Louisiana.
    February 9, 2018
    Stay lifted. Writ denied.


text:
    STATE of Louisiana v. Earnest G. HAMILTON
    NO. 2017-KO-0865
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


text:
    Joe Nathan TUBBS v. STATE of Louisiana
    NO. 2018-KH-0229
    Supreme Court of Louisiana.
    February 9, 2018
    The application is transferred to the district court with instructions to the district judge to act on relator's motion for definitive ruling on claim requesting a nunc pro tunc determination of competency to proceed as relator shows by Inmate's Request for Legal/Indigent Mail receipt that the application was submitted on or about November 20, 2017. The district court is ordered to provide this Court with a copy of its judgment. A copy of the application is attached.


text:
    Cindy WILLIAMS v. Ashli RICHARDSON
    NO. 2017-C-1995
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.
    CLARK, J., would grant for the reasons assigned by Judge Holdridge.
    CRICHTON, J., would grant for the reasons assigned by Judge Holdridge.
    GENOVESE, J., would grant for the reasons assigned by Judge Holdridge.


text:
    LUBA WORKERS' COMPENSATION v. Albert Dennis BABINEAUX
    NO. 2017-C-2076
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


text:
    STATE of Louisiana v. Dontrell ALVIS
    NO. 2016-KP-1315
    Supreme Court of Louisiana.
    February 9, 2018
    Reconsideration denied.
   WEIMER, J., recused.


text:
    Wynona JOHNSON v. Tyrone TUCKER, M.D., and Richland Parish Hospital District #1-A d/b/a Richland Parish Hospital
    NO. 2017-C-2075
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


text:
    Richard RIVERS, et al. v. The STATE of Louisiana, et al.
    NO. 2017-CC-2082
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


author: JOHNSON, C.J., would grant.

text:
    Glenn Allen CHESNEY, et al. v. ENTERGY LOUISIANA, L.L.C., et al.
    NO. 2017-C-2095
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.
   JOHNSON, C.J., would grant.


text:
    Jennifer SCOTT v. GALLERIA OPERATING CO., L.L.C., Feil Organization, L.L.C., Feil Organization Louisiana, L.L.C., Broadwall Management Corporation, Chubb Services Corporation, and US Specialty Insurance Company
    NO. 2017-C-2080
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Terence WILSON
    NO. 2017-KK-2136
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.
   JOHNSON, C.J., would grant.

GENOVESE, J., would grant.


author: CRICHTON, J., would grant.

text:
    STATE of Louisiana v. Janet M. JONES
    NO. 2018-KK-0034
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.
   CRICHTON, J., would grant.


text:
    STATE EX REL. Jerry Anthony BRANDON a/k/a Jerry L. Brandon v. STATE of Louisiana
    NO. 2016-KH-1889
    Supreme Court of Louisiana.
    February 9, 2018
    Denied; moot.


text:
    Charles Henry JACKSON v. Simona D. MORTON
    NO. 2017-C-2094
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


text:
    Erika MANN v. TIM CLARK CONSTRUCTION, LLC, et al.
    NO. 2017-CC-2078
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


text:
    JOHNSON LAW FIRM, LLC, et al. v. Tina Rabalais KNOLL, et al.
    NO. 2017-C-2126
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


text:
    Cindy Celestine DARDAR, Percy M. Dardar, Alvin B. Dardar, and Litle Lake Oyster Co., LLC v. Melia Brunet DARDAR, as Executor of the Sucession of Percy B. Dardar, Sr., et al.
    Alvin B. Dardar, and Little Lake Oyster Co., LLC v. Francis I. Spagnoletti, et al.
    NO. 2017-CC-2083
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.
   HUGHES, J., would grant.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 17-PDB-061
    NO. 2017-OB-2066
    Supreme Court of Louisiana.
    February 9, 2018
    Leave to appeal denied.


text:
    Sheila CLAYTON v. MARCELLO DISTRIBUTORS, LLC and Federated Mutual Insurance Company
    NO. 2017-CC-2086
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


author: GUIDRY, J., recused.

text:
    Miriam BLANDINO and Fausto Mercedes, Individually and on Behalf of their Minor Children, Jared Mercedes and Yeriannis Mercedes v. Kendra PIERRE, John Doe, Geico Indemnity Company, USAgencies Casualty Insurance Company, Inc.- Liability and USAgencies Casualty Insurance Company, Inc.-UM
    NO. 2017-C-2093
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.
   GUIDRY, J., recused.


text:
    Darleen LEVY v. Jack E. TRUITT and The Truitt Law Firm, LLC
    NO. 2017-CC-2116
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


text:
    STATE EX REL. Edward James MCKINNEY v. STATE of Louisiana
    No. 2017-KH-1672
    Supreme Court of Louisiana.
    February 9, 2018
    Reconsideration denied.


text:
    Wynona JOHNSON v. Tyrone TUCKER, M.D., and Richland Parish Hospital District #1-A d/b/a Richland Parish Hospital
    NO. 2017-C-2073
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


text:
    Terry Lacarl JAMES v. ELDORADO CASINO SHREVEPORT JOINT VENTURE, Eldorado Shreveport #1, LLC and Eldorado Shreveport #2, LLC
    NO. 2017-C-2091
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


text:
    Geraldine T. HEDGES, et al. v. PENNSYLVANIA GENERAL INSURANCE COMPANY (Formerly, American Employers Insurance Company), et al.
    NO. 2018-CC-0226
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


text:
    LAKEWOOD PROPERTY OWNER'S ASSOCIATION and Mark Harris Samuels v. Kyle SMITH and Christine Smith
    NO. 2017-C-2131
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


text:
    STATE EX REL. Dennis L. MAGEE v. STATE of Louisiana
    NO. 2016-KH-1616
    Supreme Court of Louisiana.
    February 9, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    STATE of Louisiana v. Aunitar HARRIS
    NO. 2018-KK-0207
    Supreme Court of Louisiana.
    February 9, 2018
    Stay denied. Writ denied on showing made.


text:
    IN RE: AGGRIEVED PRACTITIONER
    NO. 2017-C-2085
    Supreme Court of Louisiana.
    February 9, 2018
    Denied.


author: WICKER, J.

text:
    Richard J. BOUTALL v. CHRISTAKIS, P.M., CO. LLC d/b/a Minerva Cafe
    NO. 17-CA-402
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, RICHARD J. BOUTALL, Eugene J. Hoffman, IV, Richard A. Tonry, Raymond Brinson, Slidell, Brian L. Glorioso, Douglas E. Alongia
    COUNSEL FOR DEFENDANT/APPELLEE, CHRISTAKIS, P.M., CO. LLC D/B/A MINERVA CAFE, Raymond A. Pelleteri, Jr., Claudette L. Bienvenu
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
   WICKER, J.

This appeal arises in a personal injury case from the trial court's judgment granting defendant's, the owner of the premises, Motion for Summary Judgment and dismissing plaintiff's claims with prejudice. Plaintiff argues summary judgment was improper as a genuine issue of material fact exists regarding whether his injuries were caused by vice, ruin or defect of a building. For the following reasons, we affirm.

Factual and Procedural History

On June 13, 2014, Richard J. Boutall filed a petition for damages against Christakis, P.M., Co. LLC D/B/A Minerva Café, alleging that, after finishing lunch with his mother at Minerva Café on June 29, 2013, while using his right shoulder to open the door, his left foot suddenly gave out causing him to fall to the floor. In his petition, Mr. Boutall alleged that his left foot slid or stumbled across a concrete ramp or rise in elevation of approximately two to three inches which was present on the threshold, causing his fall. Mr. Boutall alleged that his fall caused him to suffer serious and significant injuries. According to Mr. Boutall, the incident caused him to break his femur and incur approximately $30,000 in medical bills during a three-week hospital stay at East Jefferson General Hospital, during which he endured multiple operations, including a hip replacement and a procedure to insert a surgical rod in his leg. Mr. Boutall further alleged that, after the hip replacement, his mobility was hindered, allegedly causing him to sustain another fall during which he broke his left toe and right fibula. Mr. Boutall claimed Christakis, P.M. is liable for his injuries under a theory of premises liability pursuant to La. C.C. art. 2322 which pertains to negligent maintenance of a building.

On August 18, 2016, defendant filed a Motion for Summary Judgment, alleging that there are no genuine issues of material fact as 5050 West Esplanade, the building in which Minerva Café is located, is free from structural defects and does not present an unreasonable risk of harm to its patrons and, further that, even if the ramp presented a defect in the premises, there is no evidence that defendant had actual or constructive knowledge of any such defect. To support its motion, defendant attached the affidavit of Fred V. Vanderbrook, a mechanical engineer, who rendered his expert opinion regarding the safety conditions at the entrance to Minerva Café on the date of Mr. Boutall's accident, specifically whether there existed unreasonably dangerous conditions which caused or contributed to Mr. Boutall's accident. Mr. Vanderbrook first opined that the 2.5 inch step down between the restaurant entrance and the exterior sidewalk was within the safety requirements in force at the time the strip mall was constructed, attesting that the safety requirements in force at that time would have permitted a step down of up to eight inches. Mr. Vanderbrook further opined that the ramp located at the restaurant entrance was likely constructed in an attempt to make the restaurant entrance more handicapped accessible and to ease the transition between the step up at the restaurant door and the sidewalk, finding that the red paint on the ramp and entry area drew attention to the offset and made the ramp location conspicuous. Finally, Mr. Vanderbrook opined that the ramp did not provide any unreasonably hazardous conditions to persons entering the restaurant. In his opinion, the ramp was well-maintained and painted with a contrasting color which drew attention to its presence, and it presented no unreasonable risk of harm to others.

Defendant also attached to its motion the affidavit of Petros Christakis. In his affidavit, Mr. Christakis stated that he is a member of M. Christakis Co., LLC, the owner of the property at 5050 W. Esplanade Avenue in which Minerva Café is located, and that the small ramp leading from the sidewalk to the restaurant doorway was in place when Christakis Co. purchased the property in 1998. Mr. Christakis further stated that he had never received any complaint or notice of any problem with the entrance way to Minerva's Café before the day plaintiff fell. Moreover, defendant stated that he had never before that date received any complaint or notice of a fall or accident at that entranceway.

In his original September 22, 2016 Opposition to Defendant's Summary Judgment Motion, plaintiff attached the affidavit of William J. Moran, a registered professional engineer, which included a series of eleven photographs of the restaurant's entrance. Mr. Moran affirmed that while he had not inspected the restaurant entrance itself, he had studied the eleven photographs. Mr. Moran opined that the photographs "show the portal to the restaurant are colored entirely in red, which demonstrate a safety hazard for patrons entering and leaving." In his Supplemental Affidavit to Opposition to Summary Judgment filed on October 4, 2016, plaintiff attached Mr. Moran's second affidavit in which Mr. Moran stated that he had inspected the restaurant's entrance. In his second affidavit, Mr. Moran focused primarily upon the Americans with Disabilities Act ("ADA"), opining that the ramp from the entrance to the sidewalk was not original to the building, thus requiring any alterations to the entrance and sidewalk to comply with the ADA Standards for Accessible Design. Mr. Moran found the ramp to have a 16% slope-exceeding the maximum 8.33% slope allowed by the ADA Standards for Accessible Design. Further, he found there was no space limitation to justify the increased slope; rather, he found the slope "created an unreasonable hazard and/or risk of harm which caused or contributed to the accident/injury." Mr. Moran also reiterated his opinion that the red paint applied to the ramp did not contrast with the adjoining surfaces, because those surfaces were also painted red, obscuring the visibility of the ramp and rendering it an unreasonably hazardous condition.

In his October 5, 2016 Objection and Reply Memorandum, defendant argued that the ADA has no bearing on this matter. Defendant first argued that plaintiff did not allege an ADA violation in his petition, and further, that the ADA is inapplicable to establish proof of a defect of a building. Defendant argued that plaintiff's claim was one regarding structural defects in the premises, and the ADA applies to claims of discrimination due to a disability, not to claims arising from structural defects. On October 14, 2016, defendant filed a motion in limine to exclude plaintiff's expert testimony as irrelevant under La. C.E. art. 702. Thereafter, on October 20, 2016, plaintiff filed a motion to strike defendant's motion in limine as untimely in the face of a November 2, 2016 trial date.

On November 2, 2016, the trial court heard defendant's summary judgment motion. Following oral arguments, during which the defense in support of its motion concentrated on its assertion that plaintiff had presented no evidence that defendant had actual or constructive knowledge of the alleged ramp defect, an essential element to a claim under La. C.C. art. 2322, and plaintiff responded that the uniform red painted color of both the ramp and Minerva Café's entrance, which violated ADA Standards, created an unreasonably dangerous condition, causing plaintiff's injury, the court granted defendant's motion for summary judgment. On November 14, 2016, the trial court issued its judgment granting defendant's motion for summary judgment and dismissing plaintiff's case. On that same date, the court declared defendant's motion in limine moot.

Plaintiff filed a motion for new trial on November 22, 2016, which the trial court denied. This timely appeal follows.

Discussion

On appeal, plaintiff has assigned two errors, complaining first that the trial court erred in granting defendant's Motion for Summary Judgment, arguing that a genuine issue of material fact exists as to whether on the date of the accident a defect existed at Minerva Café's entrance and entryway ramp creating an unreasonable risk of harm. Plaintiff secondarily assigned as error the trial court's denial of his Motion for New Trial from the same summary judgment, based upon the same alleged genuine issue of material fact created by the two competing experts' reports.

Preliminarily, as to plaintiff's complaint regarding the denial of his motion for new trial, plaintiff has failed to brief this assignment of error on appeal. All assignments of error must be briefed and the appellate court may consider as abandoned any assigned error that has not been briefed. Accordingly, we find plaintiff has abandoned this assignment of error, and therefore decline to consider the merits of this assignment. La. U.R.C.A. 2-12.4; Johnson v. Spurlock, 07-949 (La. App. 5 Cir. 5/27/08), 986 So.2d 724, 729, writ denied , 08-1400 (La. 7/25/08), 986 So.2d 670 (citing Silbernagel v. Silbernagel , 06-879 (La. App. 5 Cir. 4/11/07), 958 So.2d 13, 20 ).

Turning to plaintiff's complaint regarding the trial court's judgment granting defendant's Motion for Summary Judgment, the law is well-settled that appellate courts review summary judgment de novo , viewing the record and making all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Newton v. Brenan , 14-423 (La. App. 5 Cir. 12/16/14), 166 So.3d 285, 288 ; Martinez v. Jefferson Parish Sch. , 14-340 (La. App. 5 Cir. 12/16/14), 166 So.3d 273, 276. Under this standard, we use the same criteria as the trial court in determining if summary judgment is appropriate: whether there is a genuine issue as to a material fact and whether the mover is entitled to judgment as a matter of law. Moreno v. Entergy Corp., 17-182 (La. App. 5 Cir. 11/15/17), 2017 WL 5474243, at *4, 2017 La. App. LEXIS 2077, at *5-6 (citing Boutin v. Roman Catholic Church of theDiocese of Baton Rouge , 14-313 (La. App. 5 Cir. 10/29/14), 164 So.3d 243, 246, writ denied , 14-2495 (La. 2/13/15), 159 So.3d 469 ). Summary judgment is a procedural device to secure the just, speedy, and inexpensive resolution of an action. Martinez , 166 So.3d at 276. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, if any, admitted for the purposes of the summary judgment motion reveal that there are no genuine issues of material fact. La. C.C.P. art. 966. The party moving for summary judgment has the burden of establishing the absence of a genuine material fact. Id. Boutin , 164 So.3d at 246-47. If the moving party will not bear the burden of proof at trial, the moving party must only point to an absence of factual support for one or more elements of the adverse party's claim, action or defense. Boutin , 164 So.3d at 246. The non-moving party, then, must produce evidence to show he will be able to meet his burden of proof at trial. Id. If the non-moving party cannot show he will be able to meet his evidentiary burden, there is no issue of material fact, and the moving party is entitled to judgment as a matter of law. Id. (citing La. C.C.P. art. 966(C)(2) ); Babino v. Jefferson Transit , 12-468 (La. App. 5 Cir. 2/21/13), 110 So.3d 1123, 1125.

A fact is material for purposes of summary judgment if its existence or non-existence is essential to the plaintiff's cause of action or theory of recovery. Brown v. Manhattan Life Ins. Co. , 01-0147 (La. 6/29/01), 791 So.2d 74, 78. Additionally, a fact is material if it "is one that potentially insures or prevents recovery, affects a litigant's ultimate success, or determines the outcome of a lawsuit. An issue is genuine if it is such that reasonable persons could disagree. ..." Boutin , 164 So.3d at 245 (citing Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512 (La. 7/5/94), 639 So.2d 730, 751 ; Anny v. Babin , 12-164 (La. App. 5 Cir. 7/31/12), 99 So.3d 702, 705, writ denied , 12-1972 (La. 12/14/12), 104 So.3d 441 ).

Here, plaintiff claims his injuries were caused by a defect in the building due to the unreasonably dangerous condition of the entrance and entry ramp at Minerva Café in violation of La. C.C. art. 2322. Article 2322, which defines the basis for delictual liability for buildings, provides that:

[t]he owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the 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. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

This article was amended by the Louisiana Legislature in 1996, to change the owner's liability for damages resulting from the vice or defect of a building from strict liability to a theory based on personal fault. Celestine v. Union Oil Co. of California , 94-1868 (La. 4/10/95), 652 So.2d 1299 ; Millien v. Jackson , 09-56 (La. App. 5 Cir. 12/29/09), 30 So.3d 167, 173.

Under La. C.C. art. 2322, a plaintiff must prove the following elements to hold the owner of the building liable for injuries caused by the building's vice, ruin or defect: "(1) ownership of the building; (2) the owner knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; and (5) causation." Broussard v. State, through Office of State Bldgs., Div. of Admin. , 12-1238 (La. 4/05/13), 113 So.3d 175, 182-83 ; Tramuta v. Lakeside Plaza, L.L.C. , 14-410 (La. App. 5 Cir. 2/25/15), 168 So.3d 775, 779 ; Breaux v. Fresh Start Props. L.L.C. , 11-262 (La. App. 5 Cir. 11/29/11), 78 So.3d 849, 852. Our jurisprudence requires that the ruinous building or its defective component part create an unreasonable risk of harm. Broussard , 113 So.3d at 175 (citing Entrevia v. Hood , 427 So.2d 1146, 1148-49 (La. 1983) ; Olsen v. Shell Oil Co. , 365 So.2d 1285, 1292 (La. 1978) ). If the plaintiff fails to prove any of these elements, the plaintiff's claim must fail. Millien , 30 So.3d at 174 (citing Dauzat v. Thompson Constr. Co., Inc. 02-989 (La. App. 5 Cir. 1/28/03), 839 So.2d 319 ).

The owner of a building is not responsible for each and every injury resulting from a risk posed by a defect in the building. Rather, the owner is responsible for injuries caused by a building's vice or defect that presents an unreasonable risk of harm. Broussard , 113 So.3d at 183 (citing Entrevia , 427 So.2d at 1149 ); Tramuta , 168 So.3d at 780 ; Boye v. Daiquiris & Creams No. 3 , Inc. 11-118 (La. App. 5 Cir. 11/15/11), 80 So.3d 505, 508, writ denied , 11-2778 (La. 2/17/12), 82 So.3d 290. The Louisiana Supreme Court has described the unreasonable risk of harm inquiry as a "disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or the trier of facts," and as "a matter wed to the facts." Broussard, 113 So.3d at 183. To assist the finder of fact to determine whether a building's vice or defect creates an unreasonable risk of harm, the Supreme Court has adopted a risk-utility balancing test that weighs four factors: "(1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature." Id. at 184 (citing Dauzat v. Curnest Guillot Logging, Inc. , 08-0528 (La. 12/2/08), 995 So.2d 1184, 1186-87 (per curiam); Hutchinson v. Knights of Columbus, Council No. 5747 , 03-1533 (La. 2/20/04), 866 So.2d 228, 235 ; Pitre v. Louisiana Tech Univ. , 95-1466 (La. 5/10/96), 673 So.2d 585, 591-93, cert denied , 519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996) ); see also Breaux , 78 So.3d at 852-53 (citing similar factors to determine unreasonable risk of harm including: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; and (6) the social utility involved.)

In this case, we need not address whether the entrance or entry ramp at Minerva Cafe was unreasonably dangerous as plaintiff presented no evidence that defendant knew or, in the exercise of reasonable care, should have known of the ruin or defect, or put another way, had actual or constructive knowledge of the alleged vice or defect.

A plaintiff alleging damages under La. C.C. art. 2322 must show the owner knew, or in the exercise of reasonable care, should have known of the ruin or defect. Constructive knowledge imposes a reasonable duty on the owner of the building to discover apparent defects under the owner's garde. Boutin , 164 So.3d at 246 (citing Dufrene v. Gautreau Family LLC , 07-467 (La. App. 5 Cir. 2/22/08), 980 So.2d 68, 80, writ denied , 08-0629 (La. 5/9/08), 980 So.2d 694 ); Meaux v. Wendy's Intern., Inc. , 51 So.3d 778, 788 (La.App. 5 Cir. 2010) ; see also Daniel v. Clarion Inn & Suites , 16-0760 (La. App. 4 Cir. 2/22/17), 214 So.3d 38, 41 (citing Tsegaye v. City of New Orleans , 15-0676 (La. App. 4 Cir. 12/18/15), 183 So.3d 705,718writ denied , 16-0119 (La. 3/4/16), 188 So.3d 1064 ). Constructive knowledge of a vice, ruin or defect may exist if the conditions that caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. Boutin , 164 So.3d at 246-47 (citing Casborn v. Jefferson Hosp. Dist. No. 1 , 11-1020 (La. App. 5 Cir. 5/22/12), 96 So.3d 540, 543 ); Meaux , 51 So.3d at 788 (citing Charan v. Bowman , 06-0882 (La. App. 1 Cir. 8/1/07), 965 So.2d 466, writ denied , 07-1773 (La. 11/9/07), 967 So.2d 505 ); see also Daniel , 214 So.3d at 41.

After review of the record, we find that while plaintiff, through its expert's affidavit attached to its opposition to defendant's motion for summary judgment, arguably exposed an issue of material fact as to whether a defect in the building housing Minerva Café's existed at the restaurant's entrance and entry ramp, plaintiff presented no evidence that the premises owner knew or, in the exercise of reasonable care, should have known of the ruin or defect. As discussed above, an essential element to any La. C.C. art. 2322 claim is "the owner knew or, in the exercise of reasonable care, should have known of the ruin or neglect." Plaintiff presented neither lay nor expert evidence of the owner's actual knowledge, through evidence of prior accidents or otherwise, or evidence that the alleged defect was apparent so as to put the premises owner on notice. The premises owner in his affidavit in support of his motion for summary judgment affirmed that he had neither actual nor constructive knowledge of the defect and that there had been no other accidents at the restaurant entrance before plaintiff's accident. Defendant's expert, Mr. Vanderbrook, opined that neither the restaurant entrance nor the ramp presented an unreasonable risk. He further noted that the ramp was painted red to put visitors on notice of its existence, thereby negating any question whether the alleged defect or ruin was so apparent as to place the premise owner on constructive notice. Plaintiff in response presented neither lay nor expert evidence to dispute the premise owner's lack of knowledge. Plaintiff in response submitted only his expert's original and supplementing affidavits. Plaintiff's expert in those affidavits did not address the premise owner's actual or constructive knowledge of the alleged defect. Therefore, plaintiff failed in opposing defendant's motion for summary judgment to expose an issue of material fact as to the premise owner's actual or constructive knowledge of the alleged defect or ruin. Therefore, for the reasons fully discussed herein, we affirm the judgment of the trial court granting defendant's motion for summary judgment and dismissing plaintiff's case with prejudice.

AFFIRMED


author: LILJEBERG, J.

text:
    Morgan PALMISANO v. Jennifer NAUMAN-ANDERSON
    NO. 17-CA-511
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLEE, MORGAN PALMISANO, Mark E. Morice.
    COUNSEL FOR DEFENDANT/APPELLANT, JENNIFER NAUMAN-ANDERSON, Gerald J. Calogero.
    Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg
   LILJEBERG, J.

Defendant, Jennifer Nauman-Anderson ("Ms. Anderson"), seeks review of the trial court's June 1, 2017 judgment denying her Motion to Enforce Settlement Agreement. Finding that we lack appellate jurisdiction to consider this matter, we dismiss the appeal.

On June 22, 2012, plaintiff, Morgan Palmisano, filed a "Petition on Open Account" against Ms. Anderson, seeking repayment of money he allegedly loaned to her pursuant to an oral loan agreement. The parties entered into a Confidential Settlement Agreement ("the agreement") on February 13, 2016. The agreement provided that Ms. Anderson would make three payments, totaling $13,000, to Mr. Palmisano on or before the dates specified in the agreement. The agreement further provided that within 14 days after receiving the final payment, Mr. Palmisano would file a motion to dismiss his lawsuit against Ms. Anderson.

On April 7, 2017, Ms. Anderson filed a "Motion to Enforce Settlement Agreement," alleging that Mr. Palmisano breached the agreement by failing to file a motion to dismiss his lawsuit within 14 days after Ms. Anderson made her final payment. In this motion, Ms. Anderson sought dismissal of the lawsuit, as well as an award of attorney fees and costs. This motion came before the trial court for hearing on May 31, 2017. At the conclusion of the hearing, the trial court took the matter under advisement.

On June 1, 2017, the trial court rendered a judgment denying Ms. Anderson's Motion to Enforce Settlement Agreement. Also on June 1, 2017, the trial judge signed an order dismissing all claims in this matter with prejudice, pursuant to a "Motion to Dismiss with Prejudice" filed by Mr. Palmisano. Ms. Anderson filed a Motion for Devolutive Appeal, seeking review of the judgment denying her Motion to Enforce Settlement. The trial court granted the motion on June 23, 2017.

La. C.C.P. art. 1915B(1) provides that when a judgment is rendered "as to one or more but less than all of the claims, demands, issues, or theories against a party," the judgment shall not constitute a final judgment unless it is designated as such by the trial court. La. C.C.P. art. 1915B(2) provides that in the absence of such a designation, any decision which adjudicates fewer than all of the claims "shall not constitute a final judgment for the purpose of an immediate appeal."

In Johnson v. Kerry Brown, L.L.C. , 06-925 (La. App. 5 Cir. 3/13/07), 956 So.2d 3, 5, this Court found that a judgment denying a motion to enforce a settlement agreement is an interlocutory judgment that is not appealable. Ms. Anderson acknowledges the holding of the Johnson case in her supplemental appellant brief filed with this Court. However, Ms. Anderson asserts that the judgment denying her Motion to Enforce Settlement is appealable at this time, because interlocutory judgments may be reviewed by appeal after a final judgment has been rendered. In support of her argument, Ms. Anderson cites this Court's opinion in In re: Succession of Spitzfaden , 12-895 (La. App. 5 Cir. 2/21/13), 113 So.3d 1103, writ denied , 13-1316 (La. 9/20/13), 123 So.3d 177. Ms. Anderson's interpretation of our holding in Spitzfaden is flawed.

In Spitzfaden , a legatee sought review of the trial court's judgment denying her "Objection to Interim Accounting." However, the judgment did not adjudicate all of the claims or issues in the matter and the trial court did not certify the judgment as final for purposes of an immediate appeal, in accordance with La. C.C.P. art. 1915B. Id. The executor of the succession filed a motion to dismiss the appeal for lack of appellate jurisdiction. This Court granted the motion and dismissed the appeal, finding that the judgment was interlocutory and not appealable. Id. at 1104. This Court noted that interlocutory judgments may be reviewed after a final judgment is rendered, citing

Sporl v. Sporl , 00-1321 (La. App. 5 Cir. 5/30/01), 788 So.2d 682, 684, writ denied , 01-1926 (La. 10/12/01), 799 So.2d 506, wherein this Court stated:

When an unrestricted appeal is taken from a final judgment, the appellant is entitled to a review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the correctness of the final judgment from which the party has taken an appeal.
Spitzfaden , 113 So.2d at 1104.

Thus, pursuant to Spitzfaden and Sporl , when an unrestricted appeal is taken from a final judgment, interlocutory judgments may be reviewed in addition to the final judgment. These cases do not suggest that an interlocutory judgment may be appealed after a final judgment is rendered without seeking review of the final judgment as well.

In the present case, the judgment denying Ms. Anderson's Motion to Enforce Settlement Agreement is an interlocutory judgment that did not dispose of all claims in this matter, and the trial court did not designate this judgment as final. The trial court signed two judgments in this case on June 1, 2017-one denying the Motion to Enforce Settlement Agreement and the other dismissing plaintiff's claims with prejudice. Thereafter, Ms. Anderson filed a Motion for Devolutive Appeal, seeking review of only the judgment denying her Motion to Enforce Settlement Agreement, not the final judgment dismissing the case. The trial court's order granting the appeal specifically provides that Ms. Anderson "is permitted to appeal this court's June 1, 2017 judgment which denied a Motion to Enforce Settlement Agreement, Award Attorneys Fees and Court Costs ."

In her reply brief, Ms. Anderson contends that she is, in fact, seeking review of the June 1, 2017 final judgment dismissing the case, noting that she asserted in her original appellant brief that the motion to dismiss was in an improper form. She argues that the fact that she did not specifically raise this issue in an assignment of error does not mean that the issue was not raised on appeal.

La. C.C.P. art. 2121 provides that "[a]n appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment." According to La. C.C.P. art. 2088, the jurisdiction of the trial court over all matters reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal in the case of a devolutive appeal. An appellate court does not have jurisdiction to review a final judgment if a valid appeal is not perfected. Bamburg v. St. Francis Med. Ctr. , 45,024 (La. App. 2 Cir. 1/27/10), 30 So.3d 1071, 1074, writ denied , 10-458 (La. 4/30/10), 34 So.3d 294. An order of appeal must be obtained for each final judgment the appellant seeks to appeal. Id.

In the present case, even if Ms. Anderson intended to appeal both the interlocutory judgment denying her Motion to Enforce Settlement Agreement and the final judgment dismissing the case with prejudice, she failed to request an appeal from the final judgment dismissing the case, and the order signed by the trial judge did not grant an appeal from that judgment. As such, an appeal of the final judgment dismissing plaintiff's claims with prejudice is not properly before us.

Because the judgment denying Ms. Anderson's Motion to Enforce Settlement Agreement is an interlocutory judgment that is not appealable and Ms. Anderson did not seek an unrestricted appeal from the final judgment in this matter, we are without appellate jurisdiction to consider this appeal. Accordingly, we must dismiss Ms. Anderson's appeal.

DECREE

For the foregoing reasons, we dismiss this appeal.

APPEAL DISMISSED


author: JOHNSON, J.

text:
    STATE of Louisiana v. Reginald LUCKETT
    NO. 17-KA-432
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Juliet L. Clark
    COUNSEL FOR DEFENDANT/APPELLANT, REGINALD LUCKETT, Holli A. Herrle-Castillo
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson
   JOHNSON, J.

In this appeal from Defendant's conviction for possession with intent to distribute cocaine and adjudication as a second felony offender and sentences, Defendant challenges the restriction of parole for the entirety of his enhanced sentence. For the reasons that follow, we amend Defendant's enhanced sentence and affirm as amended.

Defendant, Reginald Luckett, was charged in a bill of information on May 18, 2016 with possession with intent to distribute cocaine in violation of La. R.S. 40:967(A). He initially pled not guilty, but subsequently withdrew his not guilty plea and pled guilty as charged on September 29, 2016. The trial court sentenced Defendant to 15 years imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. On the same date, the State filed a multiple offender bill of information alleging Defendant to be a second felony offender based on a 2013 predicate conviction. After being advised of his rights, Defendant stipulated to the allegations in the multiple bill, and the trial court adjudicated him a second felony offender. The trial court vacated Defendant's original sentence and imposed an enhanced sentence under La. R.S. 15:529.1 of 15 years at hard labor without benefit of parole, probation or suspension of sentence. Defendant was subsequently granted this out-of-time appeal.

In his sole assignment of error, Defendant contends the trial court erred in restricting his entire 15-year sentence from the benefit of parole. In its appellee brief, the State concedes the trial court erred in restricting parole for the entirety of Defendant's sentence.

Defendant was charged and convicted of possession with intent to distribute cocaine, which occurred on or about March 5, 2016, and was sentenced to 15 years without benefit of parole, probation or suspension of sentence, which was subsequently vacated and an enhanced sentence of 15 years without benefits was imposed. At the time of the offense, the sentencing provisions under La. R.S. 40:967(B)(4)(b) only provided for a restriction of benefits for the first two years of the sentence. Additionally, while La. R.S. 15:529.1(G) requires all multiple offender sentences to be imposed without benefit of probation or suspension of sentence, it does not impose a parole restriction. Rather, when a defendant is sentenced as a multiple offender, it is the penalty provision for the underlying offense that imposes a parole restriction. State v. Fletcher , 03-60 (La. App. 5 Cir. 4/29/03); 845 So.2d 1213, 1222. Here, the reference statute, La. R.S. 40:967(B), only restricts two years of the sentence without parole. Thus, the restriction of all benefits for the entirety of Defendant's original 15-year sentence and the restriction of parole for the entirety of his multiple offender sentence were illegal. See State v. Payne , 17-12 (La. App. 5 Cir. 5/17/17); 220 So.3d 882, 888.

Because Defendant's original sentence was vacated and an enhanced sentence was imposed, any errors relating to his original sentence are moot. See State v. Long , 11-313 (La. App. 5 Cir. 12/13/11); 81 So.3d 875, 881, writ denied , 12-251 (La. 8/22/12); 97 So.3d 367. However, we find it necessary to amend Defendant's enhanced sentence. When a sentencing error involves the imposition of restrictions beyond what is authorized in the sentencing statute, appellate courts are instructed to correct the illegal sentence under the authority of La. C.Cr.P. art. 882, as opposed to relying on La. R.S. 15:301.1(A) to correct the error as a matter of law. State v. Sanders , 04-17 (La. 5/14/04); 876 So.2d 42 (per curiam ). Accordingly, we amend Defendant's enhanced sentence to provide that Defendant shall serve a term of 15 years imprisonment at hard labor without benefit of probation or suspension of sentence and without benefit of parole for the first two years of the sentence. We remand the case for the trial court to amend the commitment to correctly reflect the sentence as amended and affirmed herein. Furthermore, the Clerk of Court for the 24th Judicial District Court is ordered to transmit the original of the amended commitment to the officer in charge of the institution to which Defendant has been sentenced and to the Department of Corrections' Legal Department. See State v. Ordonez , 16-619 (La. App. 5 Cir. 3/15/17); 215 So.3d 473, 479.

We have reviewed the record for errors patent pursuant to La. C.Cr.P. art. 920 and find no errors that require corrective action.

DECREE

For the foregoing reasons, Defendant's enhanced sentence is amended and affirmed as amended. The case is remanded for the trial court to amend the commitment to correctly reflect the sentence as amended and affirmed herein.

SENTENCE AFFIRMED AS AMENDED; REMANDED FOR CORRECTION OF COMMITMENT

      Defendant also pled guilty to three other charges, all bearing different case numbers, which are not the subject of this appeal.

      La. R.S. 40:967(B) was amended by Acts 2017, No. 281, § 2, effective August 1, 2017, to change the penalty provisions for offenses related to Schedule II drugs. Under the amendment, the penalty for possession with intent to distribute cocaine is dependent on the aggregate weight of the cocaine involved. These amendments have no effect on this appeal, as it is well-settled that the penalty set forth in a statute at the time the offense is committed applies. State v. Sugasti , 01-3407 (La. 6/21/02); 820 So.2d 518, 520. The Louisiana Supreme Court has explained that "[t]he mere fact that a statute may be subsequently amended, after the commission of the crime, so as to modify or lessen the possible penalty to be imposed, does not extinguish liability for the offense committed under the former statute." Id.


text:
    STATE of Louisiana v. Jamal C. TAYLOR
    NO. 17-KA-396
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, JAMAL C. TAYLOR, Lieu T. Vo Clark
    DEFENDANT/APPELLANT, JAMAL C. TAYLOR, In Proper Person
    Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

Defendant, Jamal C. Taylor, appeals his convictions and sentences for three counts of possession of a firearm by a convicted felon and one count of possession with intent to distribute cocaine. For the following reasons, we affirm defendant's convictions. In addition, we affirm defendant's sentence imposed with respect to his conviction for possession with intent to distribute cocaine. Because we find the district court imposed indeterminate sentences with respect to each of the three counts of possession of a firearm by a convicted felon, we vacate defendant's sentences for these counts and remand for resentencing in a manner consistent with this opinion. Further, we grant appellate counsel's motion to withdraw as counsel of record for defendant.

PROCEDURAL HISTORY

On May 10, 2012, a Jefferson Parish Grand Jury returned a multi-count indictment charging defendant with five counts of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (counts two, three, five, seven, and nine), one count of attempted second degree murder in violation of La. R.S. 14:27 and La. R.S. 14:30.1 (count four), one count of second degree murder in violation of La. R.S. 14:30.1 (count six), and one count of possession with intent to distribute cocaine in violation of La. R.S. 40:967(A) (count ten). Defendant pleaded not guilty at his arraignment on May 11, 2012.

Defendant filed several motions during the pre-trial proceedings. On August 10, 2012, defendant filed omnibus motions to suppress his confession, identification and physical evidence. No hearing was conducted on these omnibus motions. On March 14, 2013, defendant filed motions to sever the trials of the defendants and the offenses filed against him, which the district court denied on May 28, 2013. On April 23, 2013, defendant filed a motion to quash the five counts of possession of a firearm by a convicted felon, arguing that La. R.S. 14:95.1 was unconstitutional. The district court granted the motion to quash and found these counts unconstitutional on May 28, 2013. The State filed an appeal to the Louisiana Supreme Court, which reversed the ruling granting the motion to quash in State v. Eberhardt , 13-2306, 14-209 (La. 7/1/14), 145 So.3d 377.

On September 14, 2015, defendant filed a motion to recuse the prosecutor, which the district court denied on January 14, 2016. On February 23, 2017, the district court denied defendant's reurged motion to sever the defendants and offenses. On March 16, 2017, defendant filed a motion to declare La. C.Cr.P. art. 782(A) unconstitutional because it permits non-unanimous jury verdicts for felony charges, and a motion in limine to exclude autopsy photos. On March 17, 2017, the district court denied the motion contesting the constitutionality of La. C.Cr.P. art. 782(A), but granted in part the motion to exclude certain autopsy photos.

On March 20, 2017, the parties began jury selection. On the following day, defendant agreed to enter into a plea agreement. The State entered a nolle prosequi on the attempted second degree murder charge (count four) and second degree murder charge (count six), as well as two counts of possession of a firearm by a convicted felon (counts five and seven). Defendant withdrew his pleas of not guilty to the remaining counts, and after being advised of his Boykin rights, entered pleas of guilty to three counts of possession of a firearm by a convicted felon (counts two, three, and nine) and one count of possession with intent to distribute cocaine (count ten), pursuant to North Carolina v. Alford and State v.Crosby . In accordance with the plea agreement, the district court sentenced defendant on counts two, three, and nine to 15 years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. As to count ten, the district court sentenced defendant to 20 years imprisonment at hard labor with the first two years to be served without the benefit of probation, parole, or suspension of sentence. The court further ordered the sentences to run concurrent with each other.

On the same date, the State filed a multiple offender bill of information on count ten, alleging defendant to be a second felony offender. Defendant stipulated to the multiple bill after being advised of his rights. The district court vacated defendant's original sentence on count ten, and pursuant to the multiple offender plea agreement, sentenced defendant as a second felony offender under La. R.S. 15:529.1, to 20 years imprisonment at hard labor, with the first two years to be served without benefits. The court further ordered defendant's enhanced sentence to run concurrent with the other sentences imposed in this case, and recommended defendant participate in any self-help programs available to him.

Following sentencing on March 21, 2017, defendant filed a motion for appeal which was granted by the district court on March 22, 2017. Defendant's appeal follows.

FACTS

Because defendant's convictions were the result of guilty pleas, the facts underlying the crimes of conviction are not fully developed in the record. Thus, the facts were gleaned from the factual basis provided by the State at the guilty plea proceeding. The State submitted that with regard to counts two, three, and nine, the evidence would have established that on June 21, 2011 (count two), August 2, 2011 (count three), and January 9, 2012 (count nine), defendant violated La. R.S. 14:95.1 by possessing firearms after he was previously convicted of the crime of possession of cocaine in Case No. 04-383 in the United States District Court Eastern District of Louisiana. With respect to count ten, the State alleged the evidence would establish that on January 9, 2012, defendant violated Louisiana R.S. 40:967(A) in that he knowingly possessed cocaine with the intent to distribute.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel filed a brief asserting that counsel thoroughly reviewed the district 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, 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 counsel finds the case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by "a brief referring to anything in the record that might arguably support the appeal" so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles , 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial 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 , 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 point(s) identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

DISCUSSION

Defendant's appellate counsel asserts that after a detailed review of the record, counsel could find no non-frivolous issues to raise on appeal. Appellate counsel maintains that defendant's decision to change his plea from not guilty to guilty was fully informed as he was advised of the legal consequences of a guilty plea by both his counsel as well as the district court. Counsel avers that the district court informed defendant of the sentencing ranges for the offenses and the sentences the court would impose, including the enhanced sentence, upon the acceptance of defendant's guilty pleas. Accordingly, appellate counsel asserts that defendant is now restricted by law from appealing his sentences. Additionally, appellate counsel notes that while defendant entered his guilty pleas pursuant to State v. Crosby , supra , he did not specify which pre-trial rulings were being preserved for appeal. Thus, because the pre-trial motions filed by defendant do not substantially relate to his guilt, appellate counsel concludes no adverse rulings were preserved for review.

Appellate counsel filed a motion to withdraw as attorney of record indicating counsel notified defendant of the filing of the motion and advised him of his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that his counsel filed an Anders brief and allowed him until September 17, 2017, to file a pro se supplemental brief. On September 12, 2017, this Court granted defendant's request to view the appellate record, as well as an extension until October 12, 2017, to file his brief. On October 10, 2017, defendant filed a pro se supplemental brief raising four assignments of error.

An independent review of the record supports appellate counsel's assertion that no non-frivolous issues for appeal exist. Our review, however, reveals errors patent that require correction.

The bill of indictment properly charged defendant and plainly and concisely stated the essential facts constituting the charged offenses. It also sufficiently identified defendant and the crimes charged. See generally La. C.Cr.P. arts. 464 - 466. As reflected by the minute entries and commitment, defendant appeared at each stage of the proceedings against him, including arraignment, guilty plea proceedings and sentencing.

If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter , 05-697 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Additionally, an unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing. State v. Schaefer , 97-465 (La. App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

Defendant pleaded guilty pursuant to North Carolina v. Alford , supra and State v. Crosby , supra . The State provided a factual basis for defendant's guilty pleas as required under Alford . Moreover, while defendant also entered a Crosby plea, he failed to specify which pre-trial rulings he desired to reserve for appeal. A defendant's failure to specify which pre-trial ruling he desires to reserve for appeal as part of a guilty plea entered pursuant to Crosby may limit the scope of appellate review, but does not preclude review altogether. State v. Joseph , 03-315 (La. 5/16/03), 847 So.2d 1196.

Absent a detailed specification of which adverse pre-trial rulings the defendant reserved for appellate review as part of his guilty plea, an appellate court should presume that the Crosby reservation preserves review of those evidentiary rulings which "go to the heart of the prosecution's case," such as the denial of a motion to suppress, and not rulings that may affect the conduct of the trial but do not substantially relate to guilt, such as the denial of a continuance or severance. Joseph , 847 So.2d at 1196-1197. Here, the record indicates defendant filed standard omnibus pre-trial motions, including motions to suppress, which were not ruled upon prior to the time defendant entered his guilty pleas. When a defendant does not object to the trial court's failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. State v. Corzo , 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102. Thus, there were no rulings on defendant's motions to suppress to preserve for appeal under Crosby, supra.

Moreover, the additional motions filed by defendant, including a motion to recuse the prosecutor, motions to sever defendants and offenses, and a motion to declare La. C.Cr.P. art. 782(A) unconstitutional, which the district court denied, do not substantially relate to guilt and as such, these adverse rulings were not preserved for appellate review. See Joseph , supra .

Next, a review of the record reveals no irregularities in defendant's guilty pleas that would render them invalid. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

The record shows defendant was aware he was pleading guilty to three counts of possession of a firearm by a convicted felon and one count of possession with intent to distribute cocaine. Defendant was properly advised of his Boykin rights by the district court and via the waiver of rights form. During the colloquy, the district court advised defendant of his right to a judge or jury trial, his right to confrontation, and his privilege against self-incrimination. Defendant verbally indicated he understood that by pleading guilty he was waiving these rights and further placed his initials next to the rights he was waiving. His signature at the end of the waiver of rights form indicated he understood he was waiving these rights by pleading guilty.

The district court also informed defendant that his guilty pleas could be used to enhance a penalty for any future conviction. Defendant indicated he understood the possible legal consequences of pleading guilty and confirmed his guilty pleas were entered freely and voluntarily and that no promises or threats had been made to encourage him into entering his guilty pleas. He also stated he was satisfied with the handling of his case by his attorney. Defendant was informed during the colloquy, and by means of the waiver of rights form, of the sentencing ranges for the offenses as well as the sentences the district court would impose upon acceptance of defendant's guilty pleas. Defendant was further advised that the State would file a multiple offender bill of information against him as to count ten. Defendant indicated he had no questions for the court and again professed his desire to plead guilty. After the colloquy, the judge accepted defendant's guilty pleas as knowingly, intelligently, and voluntarily made.

A review of the record also reveals no constitutional infirmity in defendant's stipulation to the multiple bill. Our review of the multiple offender proceedings reveals the district court advised defendant of his multiple offender rights prior to stipulating to the multiple bill. An unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the state failed to produce sufficient proof at the multiple offender hearing. Schaefer , 704 So.2d at 304. La. R.S. 15:529.1(D)(1)(a) provides the court shall inform a defendant of the allegations contained in the bill of information and of his right to be tried as to the truth thereof according to law. Implicit in this directive is the additional requirement that the defendant be advised of his constitutional right to remain silent. State v. Jones , 09-788 (La. App. 5 Cir. 4/13/10), 35 So.3d 1162, 1167, writ denied , 10-1448 (La. 9/2/11), 68 So.3d 534.

The multiple offender waiver of constitutional rights form signed by defendant indicates he was advised of his right to a hearing at which the State would have to prove his multiple offender status and of his right to remain silent throughout the hearing. The district court also informed defendant of these rights at the hearing. Both during the multiple bill plea colloquy and on the form, defendant was also advised of the potential sentencing range of 15 years to 60 years as a second felony offender, and of his actual sentence of 20 years. Defendant also indicated he had not been forced or coerced into stipulating to the multiple bill. After conducting the plea colloquy, the district court accepted his stipulation to the multiple bill as knowingly, intelligently, freely, and voluntarily made by defendant. We find no error in this determination.

Lastly, defendant's sentence as to count ten does not appear to present issues for appeal. His original and enhanced sentences on count ten fall within the sentencing ranges prescribed by La. R.S. 40:967(B)(4)(b) and La. R.S. 15:529.1(A)(1). Further, defendant's original and enhanced sentences on count 10 were imposed pursuant to, and in conformity with, the plea agreement. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Moore , 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46. Likewise, this Court consistently recognizes that La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Robinson , 15-661 (La. App. 5 Cir. 2/24/16), 186 So.3d 1269.

PRO SE ASSIGNMENTS OF ERROR ONE AND THREE

In his first pro se assignment of error, defendant argues that although the district court explained the rights he would be waiving by pleading guilty, it failed to explain that defendant was required to specify which pre-trial rulings he desired to preserve for appeal and that failure to do so would limit the scope of appellate review. He asserts that he pleaded guilty under Alford with the understanding that his right to challenge all pre-trial rulings would be preserved for direct appeal.

In his third pro se assignment of error, defendant argues the district court erroneously denied his motion for severance of the offenses charged, based on the fact that counts four, six, and ten were not of the same or similar character as the other offenses and were not based upon the same act or transaction. He further asserts that the offenses were subject to different degrees of punishment, warranting their severance.

First, with respect to the first assignment of error, La. C.Cr.P. art. 556.1 does not require the district court to advise a defendant that all pre-trial rulings must be specified under Crosby , so as to preserve the rulings for appeal before accepting his guilty pleas.

Furthermore, it is well-established that under both state and federal jurisprudence, an unqualified plea of guilty waives all non-jurisdictional defects occurring prior thereto and precludes review of such defects by appeal. State v. Johnson , 08-449 (La. App. 5 Cir. 12/16/08), 3 So.3d 17, 19, writ denied , 09-0787 (La. 12/18/09), 23 So.3d 932. In the present case, defendant entered an unqualified guilty plea waiving all non-jurisdictional defects. The record reflects that defendant's guilty pleas were knowing, intelligent and entered into free of any coercion, inducement, or force, as fully set forth in the Anders discussion above.

Furthermore, while defendant failed to expressly reserve his right to appeal a specific adverse ruling in the case pursuant to Crosby , the failure to do so does not preclude review altogether. State v. Joseph , supra. In the Anders analysis above, this Court reviewed the pre-trial motions filed by defendant and denied by the district court, and determined that the motions filed by defendant, including his motion to sever offenses, did not substantially relate to his guilt. Thus, defendant waived his right to now seek review of the motion to sever offenses.

Accordingly, these assignments of error are without merit.

PRO SE ASSIGNMENT OF ERROR TWO

In his one-sentence argument regarding his second pro se assignment of error, defendant asserts that his 20-year sentence under the Habitual Offender Law is unreasonably excessive because it makes no measurable contribution to acceptable goals of punishment, is no more than purposeful imposition of pain and suffering, and is grossly disproportionate to the severity of the crime. Defendant's original and enhanced sentences were imposed pursuant to, and in conformity with, the plea agreements. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. Moore , 958 So.2d at 46. We find this assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR FOUR

In his final pro se assignment of error, defendant alleges the trial court erroneously designated counts two, three, and nine (violations of La. R.S. 14:95.1 ), and count ten (a violation of La. R.S. 40:967(A) ), as crimes of violence. The transcript does not reflect that the district judge stated at sentencing that any of defendant's crimes would be designated crimes of violence. However, the commitment provides "this conviction is designated by the court as a crime of violence."

Generally, when there is a discrepancy between the commitment and the transcript, the transcript prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983). To ensure an accurate record, we remand the matter to the district court to correct the commitment and remove that statement indicating that defendant's conviction was designated as a crime of violence by the district court.

ERRORS PATENT DISCUSSION

The record was also reviewed for errors patent, according to 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).

Initially, we noticed from the face of the record that it is unclear from the sentencing transcript whether defendant received separate, individual sentences on counts two, three, and nine, respectively. The trial court stated: "At this time the Court is going to sentence the defendant as follows: In Count 2, 3, 9 the charge of convicted felon in possession of a firearm the sentence is going to be 15 years at hard labor without the benefit of probation, parole or suspension of sentence." The commitment reflects that defendant received "15 years hard labor on counts 2, 3, 9 concurrently," and the Uniform Commitment Order ("UCO") reflects that defendant received 15 years on each of these counts. Furthermore, defendant's guilty plea form indicates he would receive a 15-year sentence on each count. Although it appears that the trial court and parties intended for defendant to receive 15 years on each count, the sentencing transcript is unclear and it is well-established that the transcript prevails. Lynch, supra.

La. C.Cr.P. art. 879 provides that if a defendant is sentenced to imprisonment, the court shall impose a determinate sentence. Therefore, defendant's three convictions for possession of a firearm by a convicted felon require the imposition of three separate sentences. See State v. Anderson , 16-537 (La. App. 5 Cir. 5/17/17), 222 So.3d 935 ; State v. Meadows , 16-553 (La. App. 5 Cir. 4/12/17), 219 So.3d 1200, 1205. Because it is not clear from the sentencing transcript as to whether the district court imposed separate sentences on counts two, three and nine, we find these sentences are indeterminate. Therefore, we vacate the sentences imposed by the trial court in counts two, three and nine and remand for resentencing. On remand, we instruct the district court to impose a separate, individual sentence for each count.

Furthermore, there are several discrepancies between the commitment, the UCO and the transcript:

1) While the commitment indicates defendant pleaded guilty under North Carolina v. Alford , it does not reference the fact that defendant also pleaded guilty under State v. Crosby .
2) The UCO only references one offense date, namely for count two which was committed on June 21, 2011, and fails to reference the offense dates for the remainder of the offenses for which defendant pleaded guilty-specifically, August 2, 2011, for count three, and January 9, 2012, for counts nine and ten.
3) The UCO provides that "defendant is given 20 Year(s) without benefit of parole, probation, or suspension of sentence." However, this is inaccurate. Defendant was given a 15-year sentence on counts two, three, and nine without benefit of parole, probation, or suspension of sentence, and a 20-year enhanced sentence on count ten with the first two years to be served without benefit of parole, probation, or suspension of sentence, and as statutorily mandated under La. R.S. 15:529.1, the remainder of the 20-year sentence is served without benefit of probation or suspension of sentence.
4) On the UCO and in two places on the commitment-once after the imposition of defendant's original sentences, and once after the imposition of his enhanced sentence on count ten-it provides that the "court ordered that the above sentence is to run concurrently with any/all sentence(s) that the Defendant is currently serving." However, the transcript provides that after defendant's original sentencing, the court ordered defendant's "sentences are to run concurrent with each other," and after imposition of his multiple offender sentence, the court ordered his enhanced sentence to "run concurrent with all sentences pursuant to Case No. 12-1225." Case No. 12-1225 is the district court case number for the convictions and sentences imposed in this case.

Where there is a conflict between the transcript and the minute entry, the transcript prevails. Lynch , 441 So.2d at 734. In light of the foregoing, we remand this matter for correction of the commitment and UCO, as identified above, to ensure accuracy of the record and direct the 24th Judicial District Court Clerk of Court to transmit the corrected UCO to the appropriate authorities, in accordance with La. C.Cr.P. art. 892(B)(2), and to the Department of Corrections' legal department. See State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142.

DECREE

For the foregoing reasons, this Court affirms defendant's convictions, as well as his sentence imposed with respect to count ten. We vacate the sentences imposed with respect to the counts two, three and nine as indeterminate and remand for resentencing in accordance with the instructions set forth above. We further remand this matter to correct the commitment to remove the statement indicating that defendant's conviction was designated as a crime of violence by the district court and for the correction of additional errors patent in the commitment and UCO noted above by this Court.

CONVICTIONS AFFIRMED; SENTENCE FOR COUNT TEN AFFIRMED; SENTENCES FOR COUNTS TWO, THREE AND NINE VACATED AND REMANDED FOR RESENTENCING; COMMITMENT REMANDED FOR CORRECTION OF COMMITMENT AND UCO; MOTION TO WITHDRAW GRANTED

      In the same indictment, defendant was charged along with co-defendant Kelin Stevens. On July 12, 2012, the grand jury returned a superseding indictment adding co-defendant, Brandon Smith. The trial court did not arraign defendant on the superseding indictment. However, the failure to arraign a defendant is waived if the defendant enters a guilty plea without objection; the defendant is considered to have pleaded not guilty. See La. C.Cr.P. art. 555 ; State v. McGee , 09-102 (La. App. 5 Cir. 9/29/09), 24 So.3d 235, 241.

      Defendant's case was consolidated with the Eberhardt case for review before the Louisiana Supreme Court as they presented the same issue regarding the constitutionality of La. R.S. 14:95.1.

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

      North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      State v. Crosby , 338 So.2d 584 (La. 1976).

      As discussed more fully below in the errors patent review, it is not clear whether the district court sentenced defendant to 15 years on each count or to a total of 15 years for the three counts.

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

      It is further noted that defendant filed a motion in limine to exclude autopsy photographs, which the district court granted in part in defendant's favor. Furthermore, the district court's ruling, which granted defendant's motion to quash the counts for violation of La. R.S. 14:95.1 as unconstitutional, was reversed by the Louisiana Supreme Court in Eberhardt, supra.

      As discussed below, an error patent exist with respect to defendant's sentences for counts two, three and nine.

      At the time defendant committed the offense, a conviction under La. R.S. 40:967(A) carried a term of imprisonment at hard labor "for not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence."
      Also, the term of imprisonment for a second felony offender "shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction." See La. R.S. 15:529.1(A)(1). Thus, as a second felony offender, defendant was subject to a sentencing range of 15 to 60 years imprisonment.

      Defendant erroneously references Alford , supra, which requires the court to ascertain a factual basis for the pleas, rather than Crosby , supra, which requires a defendant to specify the pre-trial rulings he is preserving for appeal.

      La. C.Cr.P. art. 556.1(A) provides that when accepting a guilty plea, the district court must inform the defendant regarding:
      (1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
      (2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.
      (3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.
      (4) That if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.

      We further note that the trial court agreed to dismiss counts four and six, two of the three counts which defendant claims were not related to the other charged offenses.