author: PER CURIAM: CRICHTON, J.,

text:
    STATE of Louisiana v. Anthony BELL
    No. 2016-KP-0511
    Supreme Court of Louisiana.
    04/24/2017
   PER CURIAM:

1, Writ denied. In 2008, an East Baton Rouge Parish jury found relator, Anthony Bell, guilty of the first degree murders of his wife Erica Bell, Leonard Howard, Gloria Howard, Doloris McGrew, and Darlene Mills Selvage; and the attempted first-degree murder of his mother-in-law, Claudia Brown. For the following reasons, we find no error in the district court’s denial of post-conviction relief and we attach hereto and make a part hereof the district court’s written ruling.

At trial, the state’s evidence showed that in May of 2006, after arguing with his estranged wife, relator entered the small family church led by Claudia Brown and shot all adults present for church services, except his wife whom he abducted. Four of those victims died as a result of their injuries but Brown survived despite being shot in the back of the head. Relator did not harm any of the five children present and one child was able to locate a cell phone, which Brown used to call 911 as she regained consciousness. Brown reported to the 911 operator that relator was the shooter and described his clothing.

| /Taking his wife and their three children along with him, relator first drove to a relative’s home, where he dropped off the older two children, then to the parking lot of an apartment complex. While in the car with his wife and their infant, relator shot his wife in the back of the head with the same gun that he used in the church, killing her. He then placed the gun in her hand, called 911, and waited at the scene holding their infant, where he was arrested. Relator gave both an unrecorded statement and a recorded statement to police, in which he claimed his wife committed the church shootings and then shot herself because she was distraught over his affairs and the breakup of their marriage.

Relator was initially represented by appointed counsel. On the defense’s request, the trial court appointed a sanity commission to determine whether relator was competent to proceed and appointed experts to determine his I.Q. for purposes of the defense’s motion to quash the death penalty pursuant to Atkins v. Virginia. The court found relator competent to proceed, but declined to resolve the Atkins claim before trial because the parties did not agree to leave the determination to the court pursuant to La.C.Cr.P. 905.5.1.

Frustrated that his court-appointed attorneys were not pursuing his defense that his wife shot the victims and then herself in response to relator’s disclosure that he was having an affair with her mother, and convinced his attorneys were withholding information from him, relator began filing pro-se motions to dismiss one or both of the attorneys and to represent himself. Eventually, on February 28, 2008, the trial court granted relator’s motion to represent himself and his attorneys continued to assist as standby counsel throughout the guilt phase of trial.

The jury found relator guilty as charged on each count. Relator requested that appointed counsel be reinstated for the penalty phase. The court .granted his ^request but denied the 60-day extension for preparation that relator requested, which left defense counsel five days to prepare for sentencing. After the sentencing hearing, jurors rejected relator’s intellectual disability claim and unanimously agreed to impose a sentence of death in light of the aggravating circumstances that relator killed Erica Bell during the commission of a second degree kidnapping; the victims Leonard Howard, Gloria Howard, and Do-loris McGrew were 65 years of age or older; and that relator possessed specific intent to kill multiple persons.

The trial court sentenced relator to death by lethal injection for each of the five counts of first degree murder, and to 50 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for attempted first degree murder. The convictions and sentences were affirmed. State v. Bell, 09-0199 (La. 11/30/10), 53 So.3d 437, reh’g denied, (La. 1/14/11), cert. denied sub nom. Bell v. Louisiana, 564 U.S. 1025, 131 S.Ct. 3035, 180 L.Ed.2d 856 (2011). In 2013, relator filed an application for post-conviction relief, which the district court denied with written reasons.

Relator first contends that an MRI and neuropsychological evaluation conducted in 2013, seven years after the shootings and five years after his trial, reveals that he suffers from a previously undiscovered brain asymmetry and undiagnosed mental illness in the form of bipolar disorder and grandiosity. He claims these conditions render him incompetent in a manner distinct from the previously litigated questions of his competency to stand trial and his intellectual disability and justify the reopening of several claims. However, the issue of his | competence was thoroughly addressed at trial and on direct review. Although he now argues that a previously undiscovered medical basis underlies these previously litigated claims, a competence determination rests on a defendant’s capacity to understand the proceedings or assist in his defense. La.C.Cr.P. art. 641. The jury and trial judge had the opportunity to extensively observe relator’s lucid and capable behavior as he represented himself during the guilt phase, and those firsthand observations were undoubtedly factored into the jury’s determinations at both phases of trial. Relator fails to show that the new evidence about his brain structures and his performance on tests conducted several years later are relevant to the issue of his competency to stand trial or would have affected the verdicts. As evaluating psychologist Dr. Donald Hoppe noted in a letter at the conclusion of relator’s trial:

Mr. Bell has more recently requested, and has been allowed, to serve as his own attorney. I had the opportunity to observe him in the court room during voir dire on April 2, 2008. His behavior at this time was remarkably different from what I had seen earlier. Mr. Bell clearly had no difficulty following what was going on in court. He was | ¡¡observed to be reading and writing with no apparent difficulty. He was articulate, even eloquent in his arguments before the court. Several times he correctly cited Louisiana law and the court ruled in his favor. The questions which he posed to prospective jurors were well-planned and carefully crafted. All of this directly observed behavior strongly weighs against Mr. Bell’s true level of intelligence falling in the 50-53 range.
Based on the highly doubtful IQ test results and direct observation of average to above average conceptual, social, and practical adaptive skills, it is my opinion that Anthony Bell is definitely not mentally retarded.

(emphasis in original). Relator fails to show that the interests of justice require the Court to revisit his intellectual ability or competence. La.C.Cr.P. art. 930.4.

Moreover, as the district court found in its post-conviction ruling, the 2013 neurop-sychological reports do not contain any credible evidence that relator suffers from “severe brain damage” and mental illness as he claims. To the contrary, the initial MRI report identifies several normal brain structures and concludes relator’s “Study [was] within normal limits.” Likewise, the report from Sundeep Mangla, M.D., who performed an independent evaluation of the same MRI, identifies merely that “there may be mild asymmetry of the medial temporal lobes and hippocampal gyri, ... [but that n]o abnormality or asymmetry of signal intensity is observed within these temporal lobe regions,” and that “[t]he remainder of the Brain MRI appears structurally normal without evidence of tumor, stroke, or significant asymmetry in morphology or signal intensity.”

On the other hand, a 2013 neuropsychia-tric exam authored by George Woods, M.D., quotes relator’s MRI report finding that his brain is “within normal limits,” but interprets relator’s partly empty sella (previously identified as a pituitary issue) and structural asymmetries as indicative of abnormality. He refers to yet another interpretation of the same images conducted by Erin Bigler, Ph.D., Rwhom Dr. Woods claims described the asymmetry as roughly 20%. Dr. Woods concludes that relator’s neuropsychological examination and “poor performance” at trial are direct manifestations of relator’s brain asymmetry, and concludes that relator suffers from bipolar disorder, secondary to a general medical condition. In the same vein, a 2013 neurop-sychological report authored by Robert Shaffer, Ph.D., indicates testing showed relator’s intelligence to be in the low average range. After summarizing the various neuropsychological tests performed, the report concludes that relator’s “MRI brain scans and neuropsychological tests demonstrate abnormal structure and impairment of important neuropsychological functions” which show relator “suffers from an organic, brain-based condition causing grandiosity,” potentially causing relator to overestimate his own abilities and demonstrate judgment poorer than expected for someone with low average intelligence. The report also concludes that because of this, although relator was 25 years old at the time of the offenses, he “would have displayed characteristics of youth in their developmental period younger than 18.”

On the whole, relator uses the 2013 neu-ropsychological testing to draw retrospective, speculative, and unprovable conclusions about his mental functioning at the time of the offenses and at trial, based on tests performed years later. Even if the test results relator now offers had been available at trial, they would have had no reasonable likelihood of affecting the outcome. Although the reports opine that relator suffers from poor judgment and poor impulse control, they are in no way inconsistent with the finding at trial that relator is not intellectually disabled nor do they reveal any new information about relator’s “capacity to understand the proceedings against him or to assist in his defense.” See La.C.Cr.P. art. 641. Rather, it appears the expert opinions that relator suffers 17from poor impulse control and poor judgment may have even been detrimental to his defense. In sum, because this new evidence is not so compelling that no reasonable juror could have voted to convict him with knowledge thereof, see State v. Pierre, 13-0873 (La. 10/15/13), 125 So.3d 403, relator has shown no error in the district court’s rejection of it. Moreover, because this new information does nothing to change this Court’s analysis of any related claims that were fully litigated on appeal, relator has not shown that the interest of justice requires this Court to reconsider them now. La.C.Cr.P. art. 930.4(A).

Relator next argues that the prosecution committed misconduct by failing to disclose that between November 2007 and March 2008, the jailhouse law librarian wrote several letters to the prosecution in which he offered information about relator’s trial preparation and requested leniency in his own pending prosecution. Although relator invokes Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and the cases that followed it, the doctrine addressed therein bars the introduction of a defendant’s incriminating statements if the | Sstatements were intentionally elicited by a jailhouse informant acting as a government agent and in the absence of counsel. Because relator does not allege that he made any incriminating statements to the law librarian, that case appears inapposite. Further, relator does not show that the law librarian acted as an agent for the state. Relator surmises that the warden intentionally selected that individual, a police officer charged with theft and fraud in the line of duty, to serve as the law librarian because his “predisposition to dishonesty was obvious” given his pending charges, but his theory that the warden predicted the librarian’s actions is pure conjecture. Nothing indicates that the warden and prosecutors acted in concert, or that the prosecution solicited the letters, encouraged them, obtained any advantage from them, or even responded to them. Rather, the letters merely reflect an aspiring snitch who offered his services in the hopes of leniency, and do not appear to contain any incriminating information or confidences relayed by relator. Notably, communications with jailhouse law librarians, who are typically not attorneys, are not privileged. See e.g,, State v. Myers, 02-1296 (La.App. 3 Cir. 3/5/03), 839 So.2d 1183. Accordingly, though the prosecutor failed to disclose the letters, because there is no indication they were in any way used at trial (much less to prejudicial effect), relator fails to show that the district court erred in rejecting this claim. La.C.Cr.P. art. 930.2.

Relator next argues that his conviction should be reversed because the trial court’s evidentiary rulings and restriction of relator’s case to a single day prevented him from presenting a defense. Specifically, he claims the court 19“pressured” him to call his witnesses within one day, but does not show that any witnesses or evidence were erroneously excluded as a result. Because these are issues of which he had knowledge and raised in the trial court, yet inexcusably failed to pursue on appeal, the district court did not abuse its discretion in rejecting the claims. La.C.Cr.P. art. 930.4(C).

Relator next argues that his absence from various pretrial proceedings, and appointed counsel’s failure to object thereto, denied him due process and violated unspecified Sixth Amendment rights. Relator contends he was absent from 16 of the 41 pretrial conferences and hearings before he assumed his own representation. As an initial matter, relator does not explain how his absence from any of these pretrial proceedings violated his substantial rights. In any event, as indicated by the district court’s ruling dismissing this claim, with the exception of an emergency gag order request by the defense, the proceedings from which relator was absent |1ftconsisted of housekeeping matters. Because he does not show that he was absent from any constitutionally significant proceedings or proceedings at which his attendance was obligatory, see La.C.Cr.P. art. 831, the claim fails.

Relator next alleges he received ineffective assistance pre-trial from court-appointed counsel. He claims counsel erred by failing to investigate his mental health, failing to retain an expert who would have established that he was not competent to represent himself, and failing to prevent his waiver of counsel. He posits that such an expert would have shown that he suffered from mental illness and “brain damage,” and as a result the trial court would not have permitted his “disastrous” self-representation. He also claims pre-waiver counsel failed to investigate, and thereby failed to retain experts to examine the DNA evidence, fingerprint evidence, and gunshot evidence “to create reasonable doubt.”

Relator urges that the district court erred by citing Faretta in finding that he waived any ineffective assistance of counsel claims when he chose to represent himself, because Faretta does not specifically address claims that pre-waiver appointed attorneys were ineffective. Though relator does not point to any law supporting his argument that pre-waiver ineffectiveness claims remain viable after a waiver of counsel, even assuming arguendo that Faretta does not bar such claims, relator’s precise claims were in fact waived because they were all within the purview of his self-representation. Moreover, as set out on appeal, relator’s court-appointed attorneys zealously attempted to prevent his self-representation:

^Additionally, after defendant had been representing himself for over two weeks, his standby counsel filed a Motion to Reconsider Defendant’s Pro Se Motion to Dismiss Counsel, and the motion was heard seven days later. At this hearing, defendant stated, “Your Honor, if I can’t—if I can’t have my attorneys and be—be co-counsel with them, I will represent myself, and I don’t want to entertain their motion.” The court attempted to confirm once again that the defendant knew there is no right to be both represented and represent yourself, he had every right to take the stand regardless of his representation, he is not being withheld discovery that representing himself will allow him to obtain, and he has been provided or allowed to inspect every piece of evidence in the case. Defendant confirmed he understood the above, but objected to the statement that he had received all of the evidence, as there was a dispute about a certain statement and a few other items that were absent from a box the state provided to the defendant. After standby counsel and the state were heard on the motion, the court insisted the defendant articulate why he opposed their motion. The defendant stated, “Because I wouldn’t be able to—I wouldn’t be able to act as co-counsel at my trial. That’s the only reason why I’m objecting to their motion.” The court then asked what he wanted to have the ability to do as co-counsel. The defendant stated, “Talk just like my lawyer would be able to talk to witnesses, question witnesses.” The defendant then reiterated his desire to act as co-counsel if he had that right, but absent that right he stated, “I’m representing myself.” It is clear the defendant in this case desired to represent himself, and was well-apprised of the dangers and pitfalls of his venture.

Bell, 09-0199, pp. 21-22, 53 So.3d at 451.

Relator further argues that counsel, who later re-enrolled for the penalty phase at relator’s request, made numerous errors. First, he argues that penalty phase counsel erred by failing to present mitigation evidence, including evidence of his life history, brain abnormalities, and mental illness.

A defendant at the capital penalty phase is entitled to the assistance of a reasonably competent attorney acting as a diligent, conscientious advocate for his life. State v. Fuller, 454 So.2d 119, 124 (La. 1984). Thus, counsel’s role at capital sentencing resembles his role at the guilt phase in that he must “ensure that the adversarial testing process works to produce a just result.” Burger v. Kemp, 483 U.S. 776, 788-89, 107 S.Ct. 3114, 3122-26, 97 L.Ed.2d 638 (1987). A finding of ineffective assistance of counsel at the penalty phase requires a showing that | ^counsel failed to undertake “a reasonable investigation [which] would have uncovered mitigating evidence,” and that failing to put on the available mitigating evidence “was not a tactical decision but reflects a failure by counsel to advocate for his client’s cause,” which resulted in “actual prejudice.” State v. Hamilton, 92-2639, p. 6 (La. 7/1/97), 699 So.2d 29, 32.

Here, though penalty phase counsel presented an Atkins defense, relator argues that counsel failed to investigate with sufficient zeal to discover his alleged brain abnormalities, which could have served as mitigation evidence. However, as discussed above, relator fails to demonstrate that at the time of the offense he suffered from any brain abnormalities or mental illness which would have caused impaired capacity “to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” See La.C.Cr.P. art. 905.5. Moreover, though relator alleges counsel erred by failing to investigate his potential brain abnormalities, separate and apart from the intellectual disability inquiry, and refers to counsel’s failure to ensure he received an MRI, prison medical records show that an MRI was ordered for relator before trial, not because of his cognitive functioning, but rather to evaluate his pituitary gland for abnormalities because he was suffering from enlarged breast tissue. Because the facility did not have MRI equipment, it conducted a CT scan, which revealed “no acute or significant intracranial abnormality.” Under these circumstances, relator fails to show that there was any reasonable basis to pursue further investigation at that point, or that such investigation would have revealed' anything helpful, given that the first two doctors to examine his subsequent 2013 MRI results noted they were “within |1snormal limits” and showed “no abnormality.” Thus, relator has not shown, as required under Hamilton, that counsel’s penalty phase investigation resulted in the omission of mitigating evidence, and this claim fails. See Hamilton, 92-2639 p. 6, 699 So.2d at 32; see also Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 2538, 156 L.Ed.2d 471 (2003) (“In assessing the reasonableness of an attorney’s investigation ... a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.”).

Relator also shows no prejudice as a result of counsel’s failure to object to the injection of allegedly inapplicable aggravating factors in a case in which the state provided sufficient evidence to support the jury’s findings that he killed his wife during a second degree kidnapping; that he killed three victims who were 65 years of age or older; and that he killed all victims in a shooting spree. See, e.g., State v. Monroe, 397 So.2d 1258, 1276 (La. 1981) (“Where two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance does not so taint the proceedings as to invalidate the other aggravating circumstance found and the sentence of death based thereon.”). This claim fails.

|uFinally, relator fails to show that he received ineffective assistance of appellate counsel because counsel failed to raise the claims discussed above. Relator does not have a right to designate the issues that counsel raises on appeal, see Jones v. Barnes, 463 U.S. 745, 751-53, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983), and would be entitled to relief only if he can show both that (1) counsel erred by “ignoring] issues ... clearly stronger than those presented,” see Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 765, 145 L.Ed.2d 756 (2000) (citation and internal quotation marks omitted), and (2) a “reasonable probability” that he would have prevailed on the claim on appeal. Mayo v. Henderson, 13 F.3d 528, 533-34 (2d Cir. 1994). Because the claims are meritless, appellate counsel did not render ineffective assistance by failing to raise them.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana’s post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P, art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

CRICHTON, J.,

additionally concurs and assigns reasons:

I agree in all respects with denial of this capital defendant’s writ application and write separately to emphasize the brutality of Bell’s murders of five church-goers and what strikes me as an inordinate delay in the State post-conviction process.

Anthony Bell publically asked his recently estranged wife, Erica, to reunite with him before the congregation of the small family church led by Erica’s mother, Pastor Claudia Brown. She rebuffed him. Bell, who had a history of responding violently to rejection, became agitated, walked outside, and came back into the church shooting. He then abducted his wife, killed her, and called 911 to claim she shot the members of the congregation before committing suicide by somehow shooting herself in the back of her head. However, Erica’s mother Claudia survived to identify Bell, despite having been shot in the head. In total, Bell killed five persons.

Bell insisted on representing himself, even in light of his counsel’s vigorous efforts to prevent him from doing so. Bell, however, prevailed in his desire to represent himself and presented a bizarre and inflammatory defense that Pastor Claudia Brown—whose daughter Bell killed and who was herself shot by Bell—was a compulsive liar who had been paying him for sex. Bell claimed the discovery of this relationship with his mother-in-law was the motive for Erica to shoot several members of her family, including her mother, before abducting him and ultimately killing herself. During the culpability phase of trial, the jury witnessed Bell asking his mother-in-law such questions as whether they ever watched pornography together, whether they ever engaged in oral sex, whether Bell ever ejaculated on Pastor Brown, whether Pastor Brown ever seduced Bell, and whether Pastor Brown’s husband was able to perform sexually.

Not surprisingly, Bell was found guilty as charged of five counts of first degree murder and one count of attempted first degree murder. In addition to the statutory aggravating circumstances that were proven beyond a reasonable doubt, the jury had endured the spectacle of Bell’s abusive cross-examination of a woman he not only shot but whose daughter he had killed. Finding no mitigating circumstances, the jury recommended the death penalty. To say that counsel, reappointed to represent Bell during the penalty phase at his request, faced an uphill battle is an understatement. However, despite the extremely negative impression Bell must have made on jurors during the culpability phase, counsel valiantly presented a mitigation case that included defendant’s lower than average IQ, his poor functioning, and a depiction of the defendant as a loving and caring father. “Even if a Petitioner shows that counsel’s performance was deficient, [] he must also show prejudice”; that is, he must show “a reasonable probability that but for counsel’s unprofessional errors, the result ... would have been different.” Williams v. Taylor, 529 U.S. 362, 394, 120 S.Ct. 1495, 1513-14, 146 L.Ed.2d 389 (2000) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)). Bell’s belated claims, of brain abnormalities notwithstanding (which by all indication are minor and within normal limits), he shows neither that counsel erred during the penalty phase nor, for the reasons above, any reasonable probability that the result would have been different.

As I have emphasized before, “the purpose of collateral review is not to second-guess trial counsel’s strategy with benefit of hindsight or provide a second penalty phase many years after the first.” See State v. Cosey, 15-1456, p. 1 (La. 6/17/16), 194 So.3d 602, 603. (Crichton, J., additionally concurring). In my view, collateral review in this case has taken an inordinate amount of time and wasted considerable resources that could have been better spent elsewhere in the important work of indigent defense. Bell committed his horrific crimes in 2006, the trial took place in 2008, the Louisiana Supreme Court affirmed the conviction and sentence in 2010, and the U.S. Supreme Court denied certio-rari in 2011. Six years later, after extensive and protracted post-conviction litigation, it is time that family members of the victims achieve closure and justice.

      . In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that the Eighth Amendment prohibits execution of the intellectually disabled.

      . Relator characterizes the asymmetry as "severe brain damage.” However, his medical reports do not support the use of that phrase as it is conventionally understood, as relator is not alleging that his brain was damaged by any traumatic injury or disease process. Two of the reports on his brain imaging identified his brain as within normal limits. The reports noted, at most, mild asymmetry in some portions of his brain, and none of the reports offer any supposition as to the reasons for the asymmetry.

      . As this Court noted on direct review:
      Before defendant dismissed his appointed counsel, they placed his mental status at issue in, separate but interrelated motions. First, on June 22, 2006, the defense asked the district court to appoint a sanity commission to determine whether the defendant was competent to proceed. Second, on July 5, 2006, the defense asked the district court to appoint experts to determine the defendant's I.Q. in light of the Supreme Court’s determination in [Atkins ], wherein the court held the Eighth Amendment prohibits the execution of mentally retarded offenders. Finally, on October 11, 2007, appointed counsel filed a lengthy Motion to Quash the state’s notice to seek the death penalty, claiming the defendant is mentally retarded. On February 26, 2007, the district court granted the defense’s Motion to Determine Defendant's Competency, and after a hearing on August 30, 2007, the court found he was competent to proceed. The district court also granted the defense’s Motion to Determine Defendant’s I.Q. but declined to resolve the Atkins claim pre-trial, because the parties did not agree to leave this determination up to the court pursuant to La.C.Cr.P. 905.5.1, which states, "The jury shall try the issue of mental retardation of a capital defendant during the capital sentencing hearing unless the state and the defendant agree that the issue is to be tried by the judge.”

        Bell, 09-0199, p. 2, 53 So.3d at 439-40.

      . While Dr. Hoppe’s contemporaneous assessment of relator’s courtroom performance was written in response to relator’s Atkins claim, rather than his current claims of mental illness and brain abnormality, the doctor's description of relator's courtroom performance remains pertinent.

      . The report also notes a "partly empty sella;” the area of the brain in which the pituitary gland is located.

      . Because there is no indication that Dr. Woods observed relator at trial, it is unclear how he formed his opinion that relator's performance was poor.

      . Likewise, relator shows no district court error in its dismissal of his argument that appointed counsel's failure to discover and introduce this information before he waived representation constitutes ineffective assistance, or in its rejection of his claim that, although he was 25 years old when he committed the offenses, Atkins and/or Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) prohibit his execution, because his mental illnesses and brain damage "functionally impair him to the level of a person under 18 years of age.” This Court rejected a similar argument seeking to extend the rationales of Roper and Atkins to adults who display immature developmental characteristics, in State v. Tucker, 13-1631, p. 52 (La. 9/1/15), 181 So.3d 590, and we see no reason to depart from this reasoning in relator’s case,

      . Separately, relator contends these evaluation results should permit him to re-open numerous procedurally-barred claims, including claims related to his decision to waive counsel and decisions made during his self-representation, along with claims that: he was denied access to investigators and experts, the trial court erred by imposing excessive restraints on him during trial without a finding of necessity, he was prevented from seeking assistance from his standby counsel during trial, the trial court erred by denying his motion for a change of venue, and his charging document was defective. These claims were thoroughly addressed on direct review and found meritless.
      In addition, claims that the trial court erroneously permitted the state’s DNA expert to present unreliable testimony in response to an impermissible hypothetical from the state, and that the state exercised its peremptory strikes in a discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) were not preserved by contemporaneous objections at trial. La.C.Cr.P. art. 841; La.C.Cr.P. art. 930.4(B).

      . Relator contends the prosecution used information from the letters to his detriment, citing the state’s renewal of a motion to perpetuate testimony from the only adult surviv- or, Claudia Brown. However, given that Brown was the sole adult eyewitness and relator was on trial for an incident in which he shot Brown in the head, even absent the informant’s letters, the prosecution was clearly aware that relator might pose a threat to Brown's well-being. As such, the prosecution's decision to perpetuate Brown’s testimony is not clearly attributable to the librarian’s letters.

      . In any event, the claims lack merit. Relator asserts the court denied him an opportunity to re-call Claudia Brown the next day, yet the trial transcript shows Brown was available to testify on the day that relator presented his defense, and relator fails to explain why he needed an additional day to re-call an available witness. Relator also argues that "key witness” Joshua Brown would have testified that Erica Bell was "controlling and jealous” and provided information regarding "relator’s state of mind," but was unavailable until the following day. Though relator has offered an unsworn statement from Brown, it does not support relator’s assertion that Brown was prepared to provide beneficial testimony.
      Relator also argues that the trial court's evi-dentiary rulings constituted improper commentary on the evidence, in violation of La. C.Cr.P. art. 772. Specifically, the court sustained the state’s objection to relator’s questions about previous conflicts between relator and his wife because the testimony was inadmissible evidence of the victim’s character. See La.C.E. art. 404 (generally prohibiting admission of character evidence to prove a person acted in conformity with her character on a particular occasion). Relator reasons that the ruling effectively pre-judged the merits of the case by presuming that Bell was, in fact, a victim as the state contended, rather than the perpetrator, in accordance with his defense theory.
      Indulging such a view would produce absurd results. To construe evidentiary rulings as judicial commentary on the merits of either party's theory is to disregard the trial court’s fundamental role as a neutral arbiter. Necessarily encompassed in that role is the discretion to apply the law to govern the proceedings, including the application of the evidentiary rules. Cf. La.C.Cr.P. art. 17 ("[A trial court] has the duty to require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done.”). Here, relator was on trial for Bell’s murder; as such, Bell was a victim for purposes of the evidentiary rulings. The court’s ruling on the objections was therefore not, as relator claims, an improper comment on the evidence, but rather a necessary ruling on the objections. Moreover, because relator has failed to show that the court abused its discretion in ruling, he cannot carry his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

      . See Faretta v. California, 422 U.S. 806, 834-35, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975) (accused who chooses to represent himself may not later complain that his self-representation was inadequate); see also State v. Dupre, 500 So.2d 873, 875 (La. App. 1 Cir. 1986).

      . The errors and prejudice that relator attributes to pre-waiver counsel are, at best, conjecture, because it is impossible to determine what counsel would have done, had relator not insisted on representing himself. Notably, pre-waiver counsel investigated the relevant aspects of relator's competence, requested and obtained competence and intelligence evaluations, and obtained statements from relator’s mother, teachers, and employers, pertaining to his history.

      . In conjunction with the Atkins defense, counsel presented evidence of relator’s educational struggles and work history, and called three of relator's family members to testify that he struggled in school and with following directions but was a good father and husband, and that he had helped family members financially. Counsel also introduced relator’s academic records, which demonstrated his struggles in school, and called Dr. Zimmerman to testify regarding relator's intellectual ability.

      . Although relator argues that penalty phase counsel erred by failing to present additional evidence, counsel appears to have reasonably concluded that no other evidence supported the Atkins defense. Much of what relator now presents shows, contrary to his claims of intellectual disability and "severe brain damage,” that relator earned promotions at work and was generally a capable employee. Thus, he fails to show the omitted evidence would have resulted in a different sentencing outcome, especially in a case in which, because he chose to represent himself during the guilt phase, jurors observed Iris abilities and demeanor firsthand.
      Relator also alleges counsel erred by failing to raise various objections during the penalty phase, regarding underlying issues that were addressed on appeal, including the admission of relator's phone calls from prison, religious references, and victim impact testimony. Relator shows no basis to revisit these issues, La.C.Cr.P. art, 930.4, and he fails to show the district court erred in rejecting those claims.

      , The district court correctly rejected relator’s remaining complaints about penalty phase counsel. Counsel did not err by failing to object to Dr. Hoppe's testimony as an expert witness for the state, on the ground that Dr. Hoppe did not advise relator that the results of his evaluation would not be kept confidential, because Dr. Hoppe evaluated relator pursuant to court order and relator therefore harbored no reasonable expectation of privacy. No provider-patient privilege exists when "the communication was made in the course of an examination ordered by the court in a criminal case to determine the health condition of a patient, provided that a copy of the order was served on the patient prior to the communication.” See State v. Brogdon, 457 So.2d 616, 627-28 (La. 1984) (doctor-patient privilege not intended to apply to information or opinion genuinely relevant to the narrow issue of the defendant's mental health or condition when tendered as an issue either at trial or at the penalty phase).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE EX REL. Elbert RATCLIFF v. STATE of Louisiana
    No. 2016-KH-0005
    Supreme Court of Louisiana.
    04/24/2017
   PER CURIAM:

| T Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated four applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Darlene SIAS v. STATE of Louisiana
    No. 16-KH-0001
    Supreme Court of Louisiana.
    04/24/2017
   PER CURIAM:

h Denied. Relator’s guilty plea waived all non-jurisdictional defects in the proceed-tags leading to her conviction. State v. Crosby, 338 So.2d 584, 586 (La. 1976). Relator also fails to show she received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to her remaining claims, relator fails to satisfy her post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated her application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless she can show that one of the narrow exceptions authorizing the filing of a successive 12application applies, relator has exhausted her right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Nathaniel CULVERSON v. STATE of Louisiana
    No. 15-KH-2343
    Supreme Court of Louisiana.
    04/24/2017
   PER CURIAM:

11 Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr,P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Kevin BESSE v. STATE of Louisiana
    No. 15-KH-2297
    Supreme Court of Louisiana.
    04/24/2017
   PER CURIAM:

1 denied. Construing relator’s pleading as a bona fide motion for new trial, in accordance with its caption, it is untimely and the district court did not err in dismissing it. See La.C.Cr.P. art. 851(B)(3); La.C.Cr.P. art. 853(B). In the alternative, construing the pleading as an application for post-conviction relief, see La.C.Cr.P. art. 924(1) (“An ‘application for post conviction relief means a petition filed by a person in custody after sentence following conviction for the commission of an offense seeking to have the conviction and sentence set aside.”), it was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Moreover, relator previously exhausted his right to state collateral review. See State ex rel. Besse v. State, 14-2636 (La. 2/26/16), 184 So.3d 1272.


text:
    STATE EX REL. Felix A. PRICE v. STATE of Louisiana
    No. 15-KH-2290
    Supreme Court of Louisiana.
    04/24/2017
   PER CURIAM:

| denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated eleven applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: Guidry, J.,

text:
    Pierre A. MCGRAW v. The CITY OF NEW ORLEANS and Hon. Mitchell J. Landrieu, in his capacity as Mayor of New Orleans
    No. 2017-C-0629
    Supreme Court of Louisiana.
    04/21/2017
   Guidry, J.,

would grant and docket, being of the opinion this case presents important legal issues that should be considered by the court following briefing and oral argument.

CRICHTON, J., would grant and order briefing, oral argument, and issue an opinion.


author:
CLARK, J.
      CRICHTON, J.,

text:
    STATE of Louisiana v. Sean HOLLOWAY
    NO. 2015-OK-1233
    Supreme Court of Louisiana.
    October 19, 2016

      Lafayette District Attorney's Office, Hon. Keith A. States, District Attorney, Roger P. Hamilton, Jr.; for Applicant.
    Berry J. Sallinger, APLC, Barry Joseph Sallinger, Allyson Melancon Prejean; for Respondent.
   CLARK, J.

| iDnring the 2012 Regular Session, the sentencing provisions of La. C.Cr.P. art. 890.1, relative to crimes of violence, were replaced with new provisions addressing sentencing. After numerous delays, defendant Sean Holloway was convicted and sentenced in 2014 for an offense committed in 2007. Thus, although the offense occurred in 2007, prior to the legislative changes, the conviction and sentencing occurred following the effective date of those changes. We granted certiorari in this case to determine which version of La.C.Cr.P. art. 890.1 applies to the defendant’s sentence—the version in effect at the time of the offense, or the version in effect at the time of sentencing. State v. Holloway, 15-1238 (La. 6/3/16), 192 So.3d 756. Based upon the language of the replacement article, which plainly states that it applies “upon conviction, in sentencing the offender,” we find that it is the revised version of La. C.Cr.P. art. 890.1, effective May 17, 2012, that applies to defendant’s 2014 conviction and sentence, rather than the former version, in effect at the time of the offense. Therefore, we affirm the decision of the court of appeal which vacated the designation of the defendant’s conviction as a crime of violence.

| ¡.FACTS AND PROCEDURAL HISTORY

On August 10, 2007, Holloway was the driver of a vehicle involved in a collision in which his passenger, Shawn Lancon, was killed. Holloway had a blood alcohol content of 0.051. He was charged by bill of information with vehicular homicide and pleaded guilty on January 30, 2014, over six years after he committed the offense. The district court sentenced him to four years imprisonment at hard labor, three of which were to be served without benefit of parole, probation, or suspension of sentence, and an additional year to be served in home incarceration.

|30n January 23, 2015, over eight months after Holloway was sentenced, the state filed what it captioned as a motion to clarify sentence. As a clarification, the state asked that the district court designate the offense as a crime of violence pursuant to former La.C.Cr.P. art. 890.1 in effect at the time of the offense in 2007 but repealed and replaced with a new version of the article, effective May 17, 2012, which no longer pertained to the designation of crimes of violence. The district court initially noted that, at the time Holloway was originally sentenced, Art. 890.1 did not authorize the court to make that designation, and further opined that whether the offense is treated by the Department of Public Safety & Corrections as a crime of violence is a matter to be determined by the Department. The state, however, argued that Art. 890.1 in effect at the time of the offense must be applied, and further, in light of State v. Oliphant, 12-1176 (La. 3/19/13), 113 So.3d 165, the district court should designate the offense as a crime of violence. The district court ultimately acceded to the state’s request, at least to the extent of clarifying that in the district court’s view, under Oliphant, Holloway committed a crime of violence that would be treated as such as a matter of law without further intervention by the court.

The court of appeal granted writs to vacate the district court’s ruling. The court of appeal agreed with the state that Art. 890.1 in effect at the time Holloway committed the offense applied at his sentencing (when it was no longer in effect). However, the court of appeal also found that, because Oliphant was decided after the offense was committed, there was no legal basis for the district court to designate the offense as a crime of violence. State v. Holloway, 15-0227 (La. App. 3 Cir. 5/28/15) (unpub’d) (“At the time the offense was committed [Art. 890.1] required the trial court to designate whether vehicular homicide was a crime of violence. However, there was no support for such a determination in the law or [Jurisprudence at that time.”). The state filed a writ application seeking a review of the court of appeal’s judgment.

DISCUSSION

We find the court of appeal erred in determining that the version of Art. 890.1 in effect at the time of the offense in 2007 applied at the time of sentencing in 2014 after it had been replaced in 2012. In 2007, Art. 890.1 provided, pertaining to the designation of crimes of violence:

A. When the court imposes a sentence, the court shall designate whether the crime involved is a crime of violence or an attempted crime of violence as defined or enumerated in R.S. 14:2(B).
B. Notwithstanding any provision of law to the contrary, if a person is convicted of or pleads guilty to a crime of violence as defined or enumerated in R.S. 14:2(B) and is sentenced to imprisonment for a stated number of years or months, the sentencing court may deny or place conditions on eligibility for diminution of sentence for good behavior unless diminution of sentence is prohibited by R.S. 15:571.3(0) or (D).

1997 La. Acts 697. By the time Holloway was sentenced in 2014, Art. 890.1 had been replaced with the following article, pertaining to the waiver of minimum mandatory sentences:

A. Notwithstanding any other provision of law to the contrary, if a felony or misdemeanor offense specifies a sentence with a minimum |sterm of confinement or a minimum fíne, or that the sentence shall be served without benefit of parole, probation, or suspension of sentence, the court, upon conviction, in sentencing the offender shall impose the sentence as provided in the penalty provisions for that offense, unless one of the following occurs:
(1) The defendant pled guilty pursuant to a negotiated plea agreement with the prosecution and the court, which specifies that the sentence shall be served ■with benefit of parole, probation, or suspension of sentence or specifies a reduced fine or term of confinement.
(2) In cases resulting in trial, the prosecution, the defendant, and the court entered into a post-conviction agreement, which specifies that the sentence shall be served with benefit of parole, probation, or suspension of sentence or specifies a reduced fine or term of confinement.
B. If such agreements are entered into between the prosecution and the defendant, the court, at sentencing, shall not impose a lesser term of imprisonment, lesser fine, or lesser period of sentence served without benefit of parole, probation,'or suspension of sentence than that expressly provided for under the terms of the plea or post-conviction agreement.
C. No plea or post-conviction agreement shall provide parole eligibility at a time earlier than that provided in R.S. 15:574.4.
D. Nothing in this Article shall apply to a crime of violence as defined in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541.
E. At the time the sentence is imposed pursuant to this Article, the Uniform Commitment Sentencing Order shall specify that the sentence is imposed pursuant to the provisions of this Article.

2012 La. Acts 160 (eff. May 17, 2012). After May 17, 2012, although La.R.S. 14:2(B) still provided a general definition of “crime of violence,” no provision of law directed the district courts to designate offenses as crimes of violence at sentencing.

IfiThis Court has generally held that the law in effect at the time of the offense dictates the penalty a defendant faces at time of his conviction. See, e.g., State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518; State v. Wright, 384 So.2d 399 (La. 1980). Applying the version of the law in effect on the date of the commission of the offense ordinarily avoids violating ex post facto prohibitions in the federal and state constitutions. Both the state and the court of appeal cite Massey v. Louisiana Dept. of Public Safety & Corrections, 13-2789 (La. 10/15/14), 149 So.3d 780, to support the view that the trial court should have applied the version of Art. 890.1 in effect at the time of the offense.

However, Massey differed in a key regard. Namely, it involved a-2006 amendment to La.R.S. 15:571,3 that “significantly narrowed the class of inmates qualified to receive good time credits,” i.e. credits earned from good behavior,J^work, and self-improvement activities which accrued toward an inmate’s early release. Massey, 13-2798, p. 1, 149 So.3d at 781. Massey committed his offenses in 1994. His victims, however, did not report his crimes until 2004, and a jury did not convict him until 2007. In 2011, he was informed by the Department that he had accrued good time credits through an oversight. “Because the rescission of good time eligibility creates a significant risk of prolonging his incarceration and increases the severity of Massey’s sentence by altering the terms and conditions under which he must serve his penalty,” this court found that the “application of the amended law would violate the ex post facto clauses of the United States and Louisiana Constitutions.” Id. Thus, “[alp-plying the law- in effect at the time the offenses were committed,” the court found “Massey is eligible to receive good time credits and is entitled to have his time recomputed under the statute before it was amended.” Id., 18-2789,p. 1, 149 So.3d at 781-82.

Conversely, in this matter, applying Art. 890.1 in effect at the time of sentencing rather than the article in effect at the time of the offense violates no ex post facto prohibitions. A law which “does not punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed” survives an ex post facto analysis. Collins v. Youngblood, 497 U.S. 37, 52, 110 S.Ct. 2715, 2724, 111 L.Ed.2d 30 (1990). This court similarly observed that the linchpin inquiry in determining whether a statute violates the state Ex Post Facto Clause is “whether the change alters the definition of criminal conduct or increases the penalty.” State ex rel. Olivieri v. State, 00-0172, p. 15 (La. 2/21/01), 779 So.2d 735, 744. Not applying the prior version of Art. 890.1 does not make the punishment more burdensome here and therefore the Ex Post Facto Clauses of the |Rstate and federal constitutions are not implicated. Instead, the application of the newer article could potentially result in defendant being eligible for parole earlier, and in that regard the 2012 replacement of Art. 890.1 could be characterized as an ameliorative change to the law.

This Court examined the application of ameliorative statutory amendments in State v. Mayeux, 01-3195 (La. 6/21/02), 820 So.2d 526, where “the amended version of La. R.S. 14:983 ... [retained] the sentencing ranges provided for third and fourth DWI offenders, [but] radically changed the way in which the offender serves the sentence imposed by the court.” Id., 01-3195, pp. 3-4, 820 So.2d at 528. In that case, as is the case here, the statute was amended between the date of the offense and the defendant’s conviction and sentencing. This Court found that the ameliorative change to La.R.S. 14:98 applied at sentencing for three reasons:

First, the statute plainly states that “upon conviction,” and not “upon committing the offense,” the defendant shall be sentenced to a specific term. Thus, the specific language in LSA-R.S. 14:98 provides the time at which the penalty provisions are applicable.
Second, as previously noted, the amended version of the statute contains a specific statement of legislative purpose, as follows:
The legislature hereby finds and declares that conviction of a third or subsequent DWI offense is presumptive evidence of the existence of a substance abuse disorder in the offender posing a serious threat to the health and safety of the public. Further the legislature finds that there are successful treatment methods available for treatment of addictive disorders.
LSA-R.S. 14:98(G). Thus, the legislature has clearly stated its intention to embrace treatment measures in preference to incarceration. Applying the more lenient sentencing requirements of the amended statute to someone convicted after the enactment of the legislation, despite the commission of the offense prior to the enactment, would further this legislatively stated purpose. This clearly stated legislative purpose is one which this court cannot ignore.
Finally, language in the amending legislation grants potential relief to those already convicted by providing that “[n]othing contained in this Act shall be construed to limit the authority of the Department of | ^Public Safety and Corrections in recommending those persons incarcerated on or before August 15, 2001, to participate in home incarceration in accordance with Code of Criminal Procedure Article 894.2.” 2001 La. Acts No. 1163, § 4. It would be incongruous to extend the opportunity for home incarceration, and treatment, to those already convicted but to withhold that opportunity from those who were charged but not convicted prior to August 15, 2001, the effective date of the amendments.

Mayeux, 01-3195, pp. 5-6, 820 So.2d at 529-30.

Similarly, in this case, Art. 890.1 as amended in 2012 expressly applied “upon conviction, in sentencing the offender.” In State v. Kondylis, 14-0196 (La. 10/3/14), 149 So.3d 1210, this court remanded to the district court to determine whether the parties correctly followed the prescriptions of the 2012 version of Art. 890.1 when departing from the mandatory minimum sentence. Kondylis involved an offense (distribution of cocaine) that preceded the 2012 enactment and a conviction and sentencing date after the new Art. 890.1 became effective. Implicit in that order is the finding that the relevant date for purposes of the application of Art. 890.1 as amended in 2012 is the date of conviction rather than the date of the offense.

Although the legislature has not articulated a strong policy statement in the text of the statute, as was the case in Mayeux, there is an indication the legislature did not intend for an offender like Holloway to be treated as having committed a crime of violence. Following the Oliphant decision, and eight days after Holloway was sentenced, the legislature amended the enumerated list of offenses in La.R.S. 14:2(B) to include vehicular homicide, but only when “the operator’s BAC exceeds 0.20 percent by weight based on grams of alcohol per one hundred cubic centimeters of blood.” La.R.S. 14:2(B)(46). As noted above, Holloway registered a BAC of 0.051 percent.

[ mFinally, although the state contends the district court was authorized to designate the offense a crime of violence under former Art. 890.1, it should be emphasized that the district court has now twice declined to do so. The district court did not designate the offense a crime of violence when Holloway was sentenced (see n.2). Furthermore, a fair reading of the transcript of the hearing held in response to the state’s motion to. clarify the sentence indicates that the court still did not make that determination. Instead, the district court simply opined that under Oliphant the offense would automatically be treated as such.

Therefore, while the court of appeal correctly vacated the district court’s ruling insofar as it suggested that the law would automatically treat defendant’s offense as a crime of violence, it erred in doing so on grounds that the version of Art. 890.1 in effect at the time of the offense, rather than the version of Art. 890.1 in effect at the time of sentencing, applied.

DECREE

Accordingly, we find that Art. 890.1, effective May 17, 2012, applies by its plain language “upon conviction, in sentencing the offender” and therefore that version of the article, rather than the former article pertaining to designation of crimes of violence, applied when Holloway was convicted and sentenced in 2014. Therefore, the ultimate judgment of the court of appeal, which vacated the district court’s January 29, 2015 designation of Holloway’s conviction as a crime of violence, is affirmed.

AFFIRMED

JOHNSON, C.J., concurs.

CRICHTON, J.,

additionally concurs and assigns reasons.

|nI agree with the majority that the version of La. C.Cr.P. art. 890.1 in effect at the time of sentencing applies in this case, and the court of appeal erred in finding otherwise. I write separately to address this Court’s opinion in State v. Oliphant, 12-1176 (La. 3/19/13), 113 So.3d 165. Specifically, I agree with the court of appeal insofar as it ruled that Oliphant itself should not be applied retroactively, to the extent that Oliphant’s ruling could be interpreted as re-categorizing vehicular homicide as a “crime of violence,” therefore precluding vehicular homicide offenders from being treated under the less onerous good time and parole provisions of R.S. 15:571.3 or R.S. 15:574.4. To apply this jurisprudential designation retroactively would, in my view, violate the state and federal Ex Post Facto Clauses. See U.S. Const, art. I, § 9-10 and La. Const, art. I, § 2

      . In 2007, La.R.S. 14:32.1 defined vehicular homicide as:
      A. Vehicular homicide is the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exists:
      (1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions ofR.S. 32:662....
      La.R.S. 32:662(A) provided at that time:
      (1) Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of alcoholic beverages the amount of alcohol in the person’s blood at the time alleged as shown by chemical analysis of the person’s blood, urine, breath, or other bodily substance shall give rise to the following presumptions:
      (b) Except as provided in Subparagraph (d), if the person had a blood alcohol concentration at that time in excess of 0.05 percent but less than 0.08 percent by weight, such fact shall not give rise to any presumption that the person was or was not under the influence of alcoholic beverages, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages.
      (d) If the person was under the age of twenty-one years at the time of the test and had a blood alcohol concentration at that time of 0.02 percent or more by weight, it shall be presumed that the person was under the influence of alcoholic beverages....
      Holloway was 19 years old at the time of the offense.

      . We note that the district court did not, at the time of sentencing, find that the offense committed by Holloway constituted a crime of violence. The district court imposed a sentence within the range provided in the penalty provision. The state did not object to or appeal the sentence and did not seek to appeal it. There is no mechanism provided in the Code of Criminal Procedure by which the state can, more than eight months after a sentence that is legal in all respects is imposed and made executoiy, return to the district court to seek what is essentially a modification of the sentence. See La.C.Cr.P. arts. 881, 881.2, 881.5, 882; see also State v. Gedric, 99-1213 (La.App. 1 Cir. 6/3/99), 741 So.2d 849, writ denied, State ex rel. Gedric v. State, 99-1830, 751 So.2d 239. As a result, the state’s motion for clarification, which was in effect a motion to modify a legal sentence, brought after commencement of execution of sentence, should have been denied by the district court. See Smith v. Cajun Insulation, 392 So.2d 398, 402 n.2 (La. 1980) ("[Cjourts should look through the caption of pleadings in order to ascertain their substance and to do substantial justice.”). The court of appeal’s decision to vacate the district court’s ruling was, therefore, ultimately correct. However, the court’s stated reason for vacating that ruling—its finding that the version of La. C.Cr.P, art. 890,1 in effect at the time of the offense applied, rather the, version in effect at the time of sentencing, was the finding which prompted this court’s grant of certiorari, and which necessitated the following discussion and clarification of the applicable law.

      . La.R.S. 14:2(B) defines a crime of violence as "an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon.” That provision also enumerates several crimes of violence, this court previously noted in State v. Allen, 99-2898 (La. 6/16/00), 762 So.2d 615 (per curiam), for those crimes of violence specifically enumerated in R.S. 14:2(B), the Department of Public Safety & Corrections would compute a prisoner’s eligibility for parole or good time release at 85% of the full term date without regard to whether the trial court designated the offense as a crime of violence. With respect to those crimes not enumerated in R.S. 14:2(B) but otherwise falling under the general definition of a crime of violence, however, the Department would defer to the trial court. Thus, “[i]n such a case, the [Department] properly does not make the legal determination of whether the crime-falls'under the statutory definition of crime of violence, because the [Department] is without authority to determine which unenumerated crimes are crimes of violence. The [Department] depends upon the designation that Article 890.1A requires the trial judge to make." Allen, 99-2898 at 2-3, 762 at 616-17. The effect of the 2012 replacement of former Art. 890,1 on this system of enumerated and unen-umerated crimes of violence was unknown, and the issue was never presented to this court for consideration.
      In the recent regular legislative session, the legislature reestablished the requirement that district courts designate crimes of violence, albeit in a substantially altered form. New Article 890.3 authorizes the district courts to designate crimes of violence in the minutes. However, the court may (not shall) do so, upon written recommendation of the district attorney, when the offense is defined or enumerated as a crime of violence in R.S. 14:2(B), and only for the following limited purposes:
      (1) To determine a defendant’s eligibility for suspension or deferral of sentence pursuant to Code of Criminal Procedure Article 893.
      (2) To determine a defendant's eligibility for participation in a drug division probation program pursuant to R.S. 13:5304.
      La.C.Cr.P. art. 890.3(A). In addition, under the new article, the court shall designate certain enumerated offenses as violent crimes. See La.C.Cr.P. art. 890.3(B). However, this violent crime designation, which contains no limitation on purpose, has been unwed from the entire enumerated list of offenses in 14:2(B) and instead now applies to a narrower list of enumerated offenses. At present, this latter directive applies to 27 of the 46 crimes of violence enumerated in La.R.S. 14:2(B).


text:
    STATE EX REL. Dolph FINLEY v. STATE of Louisiana
    No. 17-KH-0588
    Supreme Court of Louisiana.
    April 24, 2017
   PER CURIAM:

JjWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5. Relator has now exhausted his right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Lester R. DYER, III v. STATE of Louisiana
    No. 17-KH-0579
    Supreme Court of Louisiana.
    April 24, 2017
   PER CURIAM:

_JjWRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. John LUTRULL v. STATE of Louisiana
    No. 17-KH-0545
    Supreme Court of Louisiana.
    April 24, 2017
   PER CURIAM:

|,WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the “extraordinary circumstances” that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Marcus T. PERRY v. STATE of Louisiana
    No. 17-KH-0376
    Supreme Court of Louisiana.
    April 24, 2017
   PER CURIAM:

I,WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted his right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Dwayne LEWIS v. STATE of Louisiana
    No. 17-KH-0275
    Supreme Court of Louisiana.
    April 24, 2017
   PER CURIAM:

I, WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5. Relator has now exhausted his right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s l-uling denying relief is now final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    IN RE: Medical Review Panel Claim of Sylvia Veronica SCOTT
    No. 2017-C-0063
    Supreme Court of Louisiana.
    March 24, 2017
   Applying for Reconsideration of this Court’s action dated February 17, 2017; Parish of Orleans, Civil District Court, Div. J, No. 2015-0966; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0145

| ^consideration not considered. See Supreme Court Rule IX, § 6.


text:
    B.T.B. v. V.L.B.
    No. 2017-CJ-0039
    Supreme Court of Louisiana.
    March 24, 2017
   Applying for Reconsideration of this Court’s action dated February 3, 2017; Parish of St. Tammany, 22nd Judicial District Court Div. L, No. 2009-13515; to the Court of Appeal, First Circuit, No. 2016 CU 0918

11 Reconsideration denied. The last day of the thirty-day period was Thursday, December 29, 2016. Relator’s application, filed on January 3, 2017, was untimely. See La. Code Civ. P. art. 5059; Supreme Court Rule X, § 5.

HUGHES, J., recused.


text:
    David HARTER and Jan Harter Pipkin v. Earl M. HARTER, III, and Harter Oil Company
    NO. 2017-C-0225
    Supreme Court of Louisiana.
    March 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 545775; to the Court of Appeal, Second Circuit, No. 50,-942-CA

| denied.

CRICHTON, J., would grant.


text:
    Ebony COLLINS v. STATE of Louisiana
    NO. 2017-00-0205
    Supreme Court of Louisiana.
    March 24, 2017
   Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, Parish of Calcasiueu Juvenile Court, No. 25955

| iDenied. Moot. Judgment terminating parental rights became final on September 6j 2016.


text:
    Barbara WISE, et vir v. Anil NANDA, M.D. Barbara S. Wise, et al. v. Louisiana State University Health Sciences Center, et al.
    NO. 2017-C-0213
    Supreme Court of Louisiana.
    March 24, 2017
   Defendant; Applying for Writ of Certio-rari and/or Review, Parish of Caddo, 1st Judicial District Court, Div. A, No. 521,-363-A C/W 546,760-C; to the Court of Appeal, Second Circuit, No. 50,944-CA C/W 50,945-CA

| iDenied.


text:
    Gustave J. LABARRE, Jr., et al. v. OCCIDENTAL CHEMICAL COMPANY and Texas Brine Company, LLC
    NO. 2017-CC-0199
    Supreme Court of Louisiana.
    March 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. A, No. 33,796; to the Court of Appeal, First Circuit, No. 2016 CW 1439;

| iDenied.


text:
    CROSSTEX ENERGY SERVICES, LP, Crosstex LIG, LLC and Crosstex Processing Services, LLC v. TEXAS BRINE COMPANY, LLC, et al.
    NO. 2017-CC-0200
    Supreme Court of Louisiana.
    March 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. A, No. 34,202; to the Court of Appeal, First Circuit, No. 2016 CW 1261;

11 Denied.


text:
    ENLINK MIDSTREAM OPERATING LP, et al. v. TEXAS BRINE COMPANY, LLC, et al.
    NO. 2017-CC-0201
    Supreme Court of Louisiana.
    March 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Assumption, 23rd Judicial District Court Div. A, No. 34,202; to the Court of Appeal, First Circuit, No. 2016 CW 1437

LDenied.


text:
    SUCCESSION OF Charles B. FANZ, Jr.
    NO. 2017-C-0310
    Supreme Court of Louisiana.
    March 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Bernard, 34th Judicial District Court Div. D, No. 118-442; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0180;

[] Denied.


text:
    STATE of Louisiana v. Arturo GARCIA, III
    NO. 2017-KK-0228
    Supreme Court of Louisiana.
    March 24, 2017
   Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court, Div. B, No. 14-193133; to the Court of Appeal, First Circuit, No. 2016 KW 1650

11 Denied.


text:
    Roberto LLOPIS, D.D.S. v. The STATE of Louisiana, DEPARTMENT OF HEALTH & HOSPITALS/The LOUISIANA STATE BOARD OF DENTISTRY; C. Barry Ogden, Individually and as Executive Director, Louisiana State Board of Dentistry, Peyton “Pete” Burkhalter, Co-Executive Director, Louisiana State Board of Dentistry; Brian M. Begue, Individually and as Counsel for the Louisiana State Board of Dentistry; Dr. Rommel Madison, President; Dr. David Melancon, Vice President, State Board of Dentistry
    NO. 2017-C-0202
    Supreme Court of Louisiana.
    March 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. M, No. 2011-11586; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0041

h Denied.


text:
    STATE EX REL. Lester R. DYER, III v. STATE of Louisiana
    NO. 2017-KH-0294
    Supreme Court of Louisiana.
    March 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 513-048; to the Court of Appeal, Fourth Circuit, No. 2016-K-1208

| iDenied.


text:
    STATE IN the INTEREST OF M.C. & A.C.
    NO. 2017-CJ-0417
    Supreme Court of Louisiana.
    March 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. A, No. 27214;

| denied. Moot. Judgment terminating parental rights became final on September 6, 2016.


text:
    IN RE: K.T., JR., and M.T. Applying for Intrafamily Adoption
    No. 2017-CP-0253
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. J, No. 149421; to the Court of Appeal, First Circuit, No. 2016 CW 1497

_JjNot considered. Not timely filed. See Supreme Court Rule X, § 5.


text:
    Mark W. ST. CYR v. Johnelle B. ST. CYR
    NO. 2017-CJ-0511
    Supreme Court of Louisiana.
    March 31, 2017
   IN RE: Mark W. St. Cyr;—Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. K, No. 113390; to the Court of Appeal, First Circuit, No. 2016 CA 0896.

|! Stay denied. Writ denied.


text:
    STATE EX REL. Calvin MITCHELL v. STATE of Louisiana
    NO. 2015-KH-2103
    Supreme Court of Louisiana.
    March 31, 2017
   IN RE: Calvin Mitchell; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 253-296;

[t Denied. See State v. Thomas, 07-0634 (La. 1/11/08), 972 So.2d 323 (per curiam).


text:
    STATE of Louisiana v. Joshua JORDAN
    NO. 2015-K-2090
    Supreme Court of Louisiana.
    March 31, 2017
   IN RE: Joshua Jordan;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. G, No. 13-CR8-120232; to the Court of Appeal, First Circuit, No. 2014 KA 1732

11 Denied.


text:
    STATE EX REL. Eldridge MCDONNELL v. STATE of Louisiana
    NO. 2015-KH-2167
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. G, No. 13-CR8-124039; to the Court of Appeal, First Circuit, No. 2015 KW 1245;

Denied.


text:
    STATE of Louisiana v. Ferneicia Felicia SIMPSON
    NO. 2016-K-0244
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. I, No, 13-F-001288; to the Court of Appeal, Second Circuit, No. 50,334-KA;

Denied.

WEIMER, J., would grant.

GUIDRY, J., would grant.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Steven WILLIAMS
    NO. 2016-KO-0332
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 491-217; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0866;

Denied.


text:
    STATE of Louisiana v. Jeffery WASHINGTON
    NO. 2016-K-0488
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 519-361; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0819

h Denied.


text:
    STATE of Louisiana v. Johnny THOMPSON, Jr.
    NO. 2016-KO-0535
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. K, No. 13-958F; to the Court of Appeal, Second Circuit, No. 50,-392-KA

| denied.

JOHNSON, C.J., would grant.


text:
    STATE of Louisiana v. Michael D. ELLIS
    NO. 2016-KO-0537
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 304,449; to the Court of Appeal, Second Circuit, No. 49,-078-KA;

Denied.


text:
    STATE of Louisiana v. Charles Douglas CHANDLER, II
    NO. 2016-K-0561
    Supreme Court of Louisiana.
    March 31, 2017
   IN RE: Charles Douglas Chandler, II;—Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. A, No. 2013-190883; to the Court of Appeal, First Circuit, No. 2015 KA1493.

h Denied.


text:
    STATE of Louisiana v. Bobby Ray DANIEL, Jr.
    NO. 2016-KO-0612
    Supreme Court of Louisiana.
    March 31, 2017
   IN RE: Bobby Ray Daniel, Jr. # 612171;. — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. A, No. 12-F-0262; to the Court of Appeal, Second Circuit, No. 50,428-KA;

11 Denied.


text:
    STATE of Louisiana v. Brandon MCELVEEN
    NO. 2017-KK-0116
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. A, No. 520-733; to the Court of Appeal, Fourth Circuit, No. 2016-K-1219 C/W 2016-K-1222

| denied.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Lawrence DAVIS
    NO. 2017-KO-0075
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 13-5376; to the Court of Appeal, Fifth Circuit, No. 16-KA-230

| denied.


text:
    GOOTEE CONSTRUCTION, INC. v. Dale N. ATKINS, et al.
    NO. 2017-C-0138
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 14-11178; to the Court of Appeal, Fourth Circuit, No. 2015-CA-037 6;

| ¶ Denied.

WEIMER, J., would grant.


text:
    Wilbert HARRIS v. CITY OF BATON ROUGE
    NO. 2017-00155
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 611,117; to the Court of Appeal, First Circuit, No. 2016 CA 0163

L Denied.


text:
    Wilbert HARRIS v. CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE
    NO. 2017-C-0159
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 611,117; to the Court of Appeal, First Circuit, No. 2016 CA 0164;

Denied.


text:
    SUCCESSION OF George MATTHEWS
    NO. 2017-C-0230
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 1958 C/W 6222; to the Court of Appeal, First Circuit, No. 2016 CA 0289 C/W 2016 CA 0290;

Denied.

GENOVESE, J., would grant.


text:
    SUCCESSION OF George MATTHEWS
    NO. 2017-00236
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 1958 C/W 6222; to the Court of Appeal, First Circuit, No. 2016 CA 0289 C/W 2016 CA 0290

Denied.

GENOVESE, J., would grant.


text:
    SUCCESSION OF George MATTHEWS
    NO. 2017-C-0243
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 1958 C/W 6222; to the Court of Appeal, First Circuit, No. 2016 CA 0289 C/W 2016 CA 0290

| iDenied.

GENOVESE, J., would grant.


text:
    ENCANA OIL & GAS (USA) INC. and SWEPI, LP v. BRAMMER ENGINEERING, INC., et al.
    NO. 2017-00242
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Desoto, 42nd Judicial District Court Div. B, No. 74881; to the Court of Appeal, Second Circuit, No. 51,-045-CA

1 iDenied.


text:
    Laura Eikert BAILEY, Tracy Eikert O’Quin, and Paul J. Eikert v. Ann EIKERT
    No. 2017-C-0244
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. G, No. 12,533; to the Court of Appeal, Second Circuit, No. 50,-853-CA

| iDenied.


text:
    Helene Benn JONES, Johnny Jones, III, Barbara Been, Evelyn Gastinell and Melanie Williams v. CAPITOL ENTERPRISES, INC., ABC Insurance Company, Sewerage & Water Board of New Orleans and XYZ Insurance Company
    No. 2017-CC-0245
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 02-5963; to the Court of Appeal, Fourth Circuit, No. 2016-C-1200;

| iDenied.


text:
    SUCCESSION OF Kathleen Theresa Joy Martin SALVATORE
    NO. 2017-C-0246
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 709-458; to the Court of Appeal, Fifth Circuit, No. 16-CA-435;

| iDenied.


text:
    STATE of Louisiana v. Sterling PEPE
    NO. 2017-KK-0250
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 525-952; to the Court of Appeal, Fourth Circuit, No. 2016-K-1288

| denied.


text:
    Joe ROGALSKI, Nedina Chaisson, and Melissa Shapcotte v. EDUCATION MANAGEMENT, INC. d/b/a Blue Cliff College
    No. 2017-C-0249
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. C, No. 159016; to the Court of Appeal, First Circuit, No. 2016 CA 0334

| denied.


text:
    STATE of Louisiana v. Cody THIBODEAUX
    NO. 2017-KK-0273
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 14-5296; to the Court of Appeal, Fifth Circuit, No. 16-K-736;

|, Denied.


text:
    STATE of Louisiana v. Eric James BERGEAUX
    NO. 2017-KK-0271
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. A, No. 82833; to the Court of Appeal, Third Circuit, No. KW 16-00889;

11 Denied.


text:
    SATTERFIELD & PONTIKES CONSTRUCTION, INC. v. BREAZEALE SACHSE & WILSON, LLP, Murphy J. Foster, III, individually and Steven B. Loeb, individually
    NO. 2017-C-0268
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish , of E. Baton Rouge, 19th Judicial District Court Div., No. C632391; to the Court of Appeal, First Circuit, No. 2015 CA 1355

h Denied.


text:
    STATE of Louisiana v. Tony Maurice MCDONALD
    NO. 2017-KK-0263
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 152458; to the Court of Appeal, Third Circuit, No. KW 16-00921;

| denied.


text:
    DELTA LAND & INVESTMENTS, LLC v. HUNTER ESTATES, INC., et al.
    NO. 2017-C-0264
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Madison, 6th Judicial District Court Div. A, No. 09-90; to the Court of Appeal, Second Circuit, No. 51,-069-CA

| TPenied.

WEIMER, J., would grant.


text:
    STATE EX REL. Bryin Scott LANDRY v. STATE of Louisiana
    NO. 2015-KH-1858
    Supreme Court of Louisiana.
    March 31, 2017
   Applying for Reconsideration of this Court’s order dated November 29, 2016, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 4555-04; to the Court of Appeal, Third Circuit, No. KH 15-00468

I,Reconsideration not considered. See La. Supreme Court Rule IX, § 6.

Genovese, J., recused.


text:
    STATE of Louisiana v. Marcus WILLIAMS
    NO. 2017-KK-0274
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 527380; to the Court of Appeal, Fourth Circuit, No. 2016-K-1304

| ;Denied.


text:
    STATE of Louisiana v. Milton MARTINEZ
    NO. 2017-KK-0357
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 15-6607; to the Court of Appeal, Fifth Circuit, No. 16-K-495; March 31, 2017

| T Denied.


text:
    Melanie TURNER v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NUMBER 2, Parish of Jefferson, State of Louisiana, d/b/a East Jefferson General Hospital; Dr. Amreesh Mahil; Parish Anesthesia of Jefferson, LLC; Dr. Justin Olinde and MPSI Physicians
    NO. 2017-CC-0277
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 758-404; to the Court of Appeal, Fifth Circuit, No. 16-C—582; March 31, 2017

11 Denied.


text:
    Saskia D. EUBANKS v. Ivan EUBANKS
    No. 2017-CJ-0443
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. H, No. 2016-9473; to the Court of Appeal, Fourth Circuit, No. 2017-C-0098;

| ¶ Denied.


text:
    STATE of Louisiana v. ALLEN W.
    NO. 2017-KK-0276
    Supreme Court of Louisiana.
    March 31, 2017
   Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court, Div. B, No. 526-560; to the Court of Appeal, Fourth Circuit, No. 2016-K-1212

Not considered, not timely filed. See Supreme Court Rule X, § 5.


text:
    STATE EX REL. Steven QUATREVINGT v. STATE of Louisiana
    No. 2015-KH-29
    Supreme Court of Louisiana.
    March 31, 2017
   Applying for Reconsideration of this Court’s action dated September 6, 2016; Parish of Orleans, Criminal District Court Div. D, No. 328-764; to the Court of Appeal, Fourth Circuit, No. 2014-K-1071

1 Reconsideration not considered. See La.S.Ct. Rule IX, § 6.


text:
    RJAM, INC. v. Leon MILETELLO d/b/a L.S.M. Amusement Company, L.S.M. Gaming, Inc. and Logansport Gaming, L.L.C.
    NO. 2017-C-0259
    Supreme Court of Louisiana.
    March 31, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Desoto, 42nd Judicial District Court Div. B, No. 58890; to the Court of Appeal, Second Circuit, No. 50,-983-CA

1 iDenied.


text:
    STATE of Louisiana v. Janero MCBRIDE, et al.
    NO. 2017-KK-0569
    Supreme Court of Louisiana.
    April 4, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 526-096; to the Court of Appeal, Fourth Circuit, No. 2017-K-0311

11 Stay denied. Writ denied.