author:
WEIMER, Justice
     GUIDRY, Justice, Clark, Justice,

text:
    RADCLIFFE 10, L.L.C. v. Ronald G. BURGER and Lynda O. Burger
    No. 2016-C-0768
    Supreme Court of Louisiana.
    01/25/2017

      DEUTSCH KERRIGAN, LLP, Raymond Lewis, Joseph L. McReynolds; RO-DEL, PARSONS & KOCH, Ross Anthony Dooley, for Applicant.
    TALLEY, ANTHONY, HUGHES & KNIGHT, LLC, Craig Joseph Robichaux, for Respondent.
   WEIMER, Justice

11 This action for nullity was brought by a judgment creditor against a judgment debtor and his wife. At issue is whether the spouses’ failure to file a codally-re-quired joint petition to commence the termination of their community property regime, pursuant to La. C.C. art. 2329, results in an absolute nullity or a relative nullity. Because the failure to file a joint petition results in a relative nullity as defined by La. C.C. art. -2031, the trial court judgment is reversed, and judgment is rendered in favor of Ronald and Lynda Burger.

FACTS AND PROCEDURAL HISTORY

A judgment creditor, Radcliffe 10, L.L.C., filed a revocatory action pursuant to La. C.C. art. 2036 against a judgment debtor, Ronald Burger, and his wife, Lynda Burger, seeking to have the spouses’ post-marital matrimonial agreement and/or the related judgment declared null. The Burgers’ matrimonial agreement, which | gterminated their legal property regime and established a separate property regime, received court approval in an action pursuant to La. C.C. art. 2329. In this agreement, the Burgers also “settle[d] all claims, rights, and obligation[s] resulting from their community property regime” and partitioned their property. The matrimonial agreement and the judgment approving the matrimonial agreement were entered into and signed after Radcliffe’s judgment, which exceeded $3.4 million, was rendered against Mr. Burger, but before Radcliffe’s judgment was signed by the court. • ' ■

In a motion for summary judgment filed in its revocatory action, Radcliffe urged that the Burgers’ “matrimonial agreement approved by the court’s Termination Judgment is void” for failure to comply with the form requirements of Article 2329, in that the Burgers’ Article 2329 action was not commenced by the required joint petition. The trial court found “that the joint petition basis upon which counsel relies does not warrant the granting of a summary judgment” and denied Radcliffe’s motion for summary judgment. The instant matter then proceeded to trial.

With a successor judge presiding, Radcliffe re-urged the issue determined in its prior motion for summary judgment, that is, the Burgers’ “judgment [in the Article 2329 action] is a nullity and the matrimonial agreement is void ab initio” for failure to strictly comply with the requirements of Article 2329. The case was submitted to the trial court on written briefs “in lieu of live testimony.”

IsQontrary to the prior ruling on Radcliffe’s motion for summary judgment, the successor judge revoked the judgment terminating the Burgers’ community regime “ab initio for failure to follow the procedural requirements” of Article 2329, finding that the “judgment was null and void and of no legal effect at any time.” Radcliffe was given “the right to have any recordation of [the Burgers’ termination of their community property regime] judgment Y cancelled.” • -

On appeal, an en banc panel of ten judges was unable to reach a majority decision in this matter; therefore, the trial court’s judgment was upheld. The appellate court judges split on the -issue of whether the Burgers’ failure to file a joint petition as required by La. C.C. art. 2329 resulted in an absolutely null or a relatively null matrimonial agreement and judgment approving the matrimonial agreement. See Radcliffe 10, L.L.C. v. Burger, 14-0347 (La.App. 1 Cir. 3/28/16), 191 So.3d 79. The Burgers’ subsequent writ application was granted by this court for determination of whether the spouses’ failure to file a joint petition in the Article 2329 action resulted in an absolutely null or a relatively null matrimonial agreement and/or judgment in the Article 2329 action. See Radcliffe 10, L.L.C. v. Burger, 16-0768 (La. 9/6/16), 204 So.3d 998.

DISCUSSION

The Burgers had a legal regime, and were free during their marriage to modify or terminate their legal regime. See La. C.C. art. 2328 (“A 'matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime.”). As contracts, matrimonial agreements are governed by the general rules of conventional obligations, La. C.C. arts. 1906, et seq. See La. C.C. art. 1915. Because matrimonial agreements are “given a special designation” in the Lcivil code, they are nominate contracts, subject also to the special rules in the title on matrimonial regimes, La. C.C. arts. 2325, et seq. See La. C.C. arts. 1914 & 1916.

Acting under the authority afforded by La. C.C. art. 2328, the Burgers (during their marriage) entered into a matrimonial agreement to terminate their legal regime, create a separate property regime, and partition their property. The Burgers’ matrimonial agreement was made by authentic act in accordance with the form requirements of Article 2331. However, also relevant to the Burgers’ termination of their legal regime is La. C.C. art. 2329, which in relevant part provides:

Spouses may enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy.
Spouses may enter into a matrimonial agreement that modifies' or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests, and that they understand the governing principles and rules. They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval.

The words of Article 2329 are clear and unambiguous. “[T]he spouse’s ability to implement” a matrimonial agreement during the marriage is subject to the procedural limitations imposed by Article 2329. This article clearly requires a joint petition by the spouses to. terminate a matrimonial regime. Compliance with Article 2329 in this regard bears on the validity’ and enforceability of the matrimonial agreement.

| fiThe. petition that commenced the Burgers’ Article 2329 proceeding named Mrs. Burger as a defendant rather than a joint petitioner. Thus, the Burgers’ Article 2329 action was indisputably not commenced by joint petition as codally required for the implementation of their matrimonial agreement. For this reason, the trial court revoked the Burgers’ judgment in the Article 2329 action ab initio and declared that judgment to.b.e “null.and void and of no legal effect at any time.” Five members of the en banc panel of ten hearing this matter on appeal agreed.

Although Article 2329 requires the filing of a joint petition, this codal provision does not provide an express remedy for a proceeding to terminate a matrimonial regime that is flawed because it was not commenced by a joint petition, Therefore, other codal provisions must be examined to determine the legal effect of a failure to file a joint petition.

“A contract is null when the requirements for its formation have not been met.” La. C.C. art. 2029. Because the “requirements [set forth in Article 2329] for [the] formation” and implementation of the Burgers’ matrimonial agreement were not satisfied, the matrimonial agreement is null, giving rise to the issue of what type of nullity applies. The two types of nullities provided for in the civil code are absolute nullities, governed by La. C.C. art. 2030, and relative nullities, governed by La. C.C. art. 2031. Therefore, at issue here is whether the Burgers’ failure to file a joint petition to commence the Article 2329 action renders their matrimonial agreement absolutely null or relatively null as defined in the following codal provisions.

| [Article 2030 provides:

A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed.
Absolute nullity may be invoked by any person or may be declared by the court on its own initiative.

Article 2031 provides:

A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made. A contract that is only relatively null may be confirmed.
Relative nullity may be invoked only by those persons for whose interest the ground for nullity was established, and may not be declared by the court on its own initiative.

Accordingly, classification of the nullity involved here depends on whether Article 2329 provides a “rule of public order” intended to protect a large class of persons or whether it simply provides a rule “intended for the protection of private parties.” See La. C.C. arts. 2030 & 2031. Resolution of this threshold issue determines whether Radcliffe has a right to invoke the nullity of the Burgers’ matrimonial agreement for failure to file a joint petition. See id.

The record is devoid of an express determination by the trial court of this issue; however, the trial court’s judgment implies that the failure to file a joint petition to commence an Article 2329 action results in an absolute nullity. As previously indicated, the appellate court judges evenly split on the nullity classification issue. Whether Article 2329 provides “a rule of public order” or “a rule intended for the protection of private parties” has not been expressly addressed by this court or any appellate court in prior cases.

LHowever, the court in Matter of Boyer recognized that “[t]he probable goal of the [procedural] limitations [in Article 2329] appears to be the legislature’s attempt to protect the less worldly spouse and to prevent that spouse from entering into disadvantageous agreements that the spouse did not fully understand.” Id., 616 So.2d 730, 732 (La.App. 1 Cir. 1993), writ denied, 620 So.2d 882 (La. 1993) (citing Katherine S. Spaht and Cynthia Samuel, Equal Management Revisited: 1979 Legislative Modifications of the 1978 Matrimonial Regimes Law, 40 La. L. Rev. 83, 91 (1979) (“the concern in allowing spouses to enter into matrimonial agreements was solely for the welfare of the spouse whose contributions to the marriage were largely non-economic, and not for the interest of creditors or forced heirs.”)). Stated differently, Article 2329 seeks “to prevent a spouse Y from using undue influence or otherwise overreaching to force the other Y to agree to a contract that is detrimental to the latter’s interests.” 16 Andrea Carroll & Richard D. Moreno, Louisiana Civil Law Treatise: Matrimonial Regimes § 8:6, p. 848 (4th ed. 2013) (citing Pascal, Louisiana’s 1978 Matrimonial Regimes Legislation, 63 Tul. L. Rev. 105 (1978)).

The parties do not dispute that the matrimonial agreement entered into by the Burgers, which terminated their legal regime, created a separate property regime and partitioned their property, was permissible under the law. The Burgers’ matrimonial agreement does not include terms that are prohibited as against public policy by La. C.C. arts. 2330 (governing the marital portion, order of succession, and management of community property), 2337 (governing the disposition of undivided interests), or R2369.8 (governing the right to partition). Furthermore, Radcliffe has not alleged that “the object of [the Burgers’ matrimonial agreement] is illicit or immoral” as contemplated by Article 2030.

As has been suggested by jurisprudence, we now find Article 2329 serves to protect a less worldly, economically vulnerable spouse from an overreaching spouse. See Matter of Boyer, 616 So.2d at 732; see also Benedetto v. Benedetto, 15-373, p. 7 (La.App. 5 Cir. 12/9/15), 182 So.3d 344, 349 (citing Matter of Boyer, 616 So.2d at 732); Poirier v. Poirier, 626 So.2d 868, 870 (La.App. 3 Cir. 1993), writ denied, 94-0161 (La. 3/11/94), 634 So.2d 389. In this respect, Article 2329 is designed to address the “capacity” and “free consent” - of the parties at the time the matrimonial agreement was made as contemplated by Article 2031. Accordingly, we conclude that Article 2329 establishes a “rule intended for the protection of private parties,” not a “rule of public order” that is intended for the protection of a large class of persons. Therefore, the Burgers’ failure to file a joint petition as required by Article 2329 results in a matrimonial agreement that is relatively null. See La. C.C. art. 2031.

Classification as a relative nullity is supported by the fact that Article 2329 makes court approval dependent on the best interest of the spouses. See Spaht and Samuel, Equal Management Revisited, 40 La. L. Rev. at 97. Furthermore, while the provisions of a matrimonial agreement may not prejudice third persons, “the adverse financial effect of the proposed agreement” on others, such as forced heirs or creditors, is not a factor before the court in an Article 2329 proceeding, in the absence |9of an intervention pursuant to La. C.C. art. 2376. See id. at 97-98. The rights of forced heirs and creditors are provided for elsewhere in the law. See id.

Concerning the remedies available to creditors, commentators have stated:

Available to the creditors aré the same remedies they have-against any contract of the debtor, in particular, the revocato-,ry action, the action in declaration. of simulation, and the oblique action. Thus, for example, if a husband transferred property gratuitously to his wife by means of a matrimonial agreement, and in so doing, rendered himself insolvent or increased his insolvency, a creditor whose debt had accrued prior to the matrimonial agreement could invoke the revocatory action and avoid the transfer upon showing that the transfer was in actual or constructive fraud of his rights. [Footnotes omitted.]

See id. at'98. Although “[t]he creditors of a spouse” are authorized by Article 2376 to intervene in a proceeding for judicial approval of a modification of a matrimonial regime, Article 2376 does not afford creditors any greater remedies relative to nullifying a matrimonial agreement than those provided for elsewhere in the law.” In fact, this court in Pan American Import Co., Inc. v. Buck, 452 So.2d 1167 (La. 1984) recognized that “[t]he right of a creditor under article 2376 to object to a separation of property is akin to a revocá-tory action[] because the .creditor in both | ^actions is avoiding a. transaction or proceeding made in fraud of his rights.” Id., 452 So.2d at 1169.

To the extent that the Burgers’ matrimonial agreement is relatively null under the facts of thi¡3 case, the nullity of such contract “may be invoked only by those persons for whose interest the ground for nullity was established,” here the non-offending spouse, Mrs., Burger. See La. C.C. art. 2031. Therefore, the relative nullity of the Burgers’ matrimonial agreement based on their failure to file a j.oint petition as required by Article 2329 cannot be invoked by Radeliffe.

Radcliffe’s right to attack the validity of the Burgers’ matrimonial agreement is instead grounded in La. C.C. art. 2036, et seq., governing revocatory actions. Although Radeliffe asserted a revocatory action in its petition to annul, Radeliffe made a strategic decision during the trial of this matter to limit its argument to Article 2329. Concerning its request for relief under Article 2036, Radeliffe (in its trial brief) only stated:

Finally, it is clear that the Termination Judgment is one-sided and provides no values. As such it cannot be said to provide a level of solvency to support paying the creditors’ claims.

The matter was submitted on written briefs for final adjudication in lieu of a trial on the merits, and the record is devoid of any evidence to'prove Radcliffe’s revocato-ry action, that is, that the Burgers’ matrimonial agreement “cause[d] or increased Mr. | „Burger’s] insolvency.” See La. C.C. art. 2036. Therefore, Radcliffe’s revocatory action is denied for lack of proof.

CONCLUSION

Bas,ed on the facts of this matter, the failure to file' a joint petition in an action pursuant to La. C.C. art. 2329 renders a matrimonial agreement that terminates the legal regime and creates a separate property regime a relative nullity. The relative nullity of the matrimonial agreement in this regard cannot be invoked by a creditor. See La. C.C. art. 2031 (such a nullity “may be invoked only by those persons for whose interest the ground for nullity was established,” the non-consenting spouse).

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. Radcliffe 10, L.L.C.’s action is dismissed with prejudice, with all costs of these proceedings, trial and appeal, assessed against Radcliffe 10, L.L.C.

REVERSED AND RENDERED,

GUIDRY, Justice, dissents and assigns reasons.

CLARK, Justice, dissents and assigns reasons.

GUIDRY, Justice,

dissents and assigns reasons.

hi respectfully dissent from the majority’s reversal of the trial court’s ruling. I would instead affirm the ruling of the trial court. In my view, the failure of the defendants to file a joint petition as required by the dictates of La. C.C. art. 2329 results in an absolute nullity as defined by La. C.C. art. 2030.

It is undisputed that “[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. C.C. art. 9. Further, it is presumed that every word, sentence, or provision in a law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were employed. Sultana Corp. v. Jewelers Mutual Ins. Co., 03-0360, p. 9 (La. 12/3/03), 860 So.2d 1112, 1119. “As a result, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause or word as meaningless and surplusage if a construction giving force to, and preserving, all words can legitimately be found.” Watkins v. Exxon Mobil Corp., 13-1545 (La. 5/7/14), 145 So.3d 237, 243 (citing St. Martin Parish Police Jury v. Iberville Parish Police Jury, 212 La. 886, 33 So.2d 671, 676 (1947)).

At issue, La. C.C. art. 2329 provides that spouses may enter into a matrimonial agreement during marriage, but “only upon joint petition and a finding by the court |2that this serves [the parties] best interests and that they understand the governing principles and rules.” (Emphasis added.) The majority concedes the words of this provision are “clear and unambiguous” insofar as it requires the filing of a joint petition by the spouses to terminate the matrimonial regime. However, because every word or phrase of a stature must be afforded its full meaning, the majority, in my view, goes astray in its analysis by effectively eliminating the mandatory element of the filing of a “joint” petition in reaching a result that I find was not intended by the legislature.

The rules of statutory construction are designed to ascertain and enforce the intent of the legislature. Stogner v. Stogner, 98-3044, p. 5 (La. 7/7/99), 739 So.2d 762, 766. The meaning and intent of a law are determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law. SWAT 24 Shreveport Bossier, 00-1695, p. 11, 808 So.2d 294, 302 (La. 6/29/01). Applying these precepts and guidelines to the instant case, I conclude the legislature intended for a strict application of La. C.C. art, 2329. The dictates of the codal provision are not mere policy concerns, but rather a protective mandate made part of a statutory enactment that restricts the establishment of a separation of property regime confected during the marriage. Muller v. Muller, 10-540 (La. App. 5 Cir. 6/29/11), 72 So.3d 364, 368. The codal requirement that any party entering into an agreement that modifies or terminates the matrimonial regime after marriage must do so by joint petition is without exception. The given facts, or those of any other case, cannot serve to vitiate the requirements of La. C.C. art. 2329.

Because I believe the dictates of La. C.C. art. 2329 to be clear and dispositive, U further disagree with the majority’s conclusion that the failure to file a joint petition rendered the matrimonial agreement a relative nullity under La. C.C. art. 2013 because it is “a rule intended for the protection of private parties,” namely, the defendants. Indisputably, the dictates of La. C.C, art. 2329 are for the protection of the married couple. Nevertheless, the consequences of entering into a contract that terminates an existing matrimonial regime cannot be viewed in a vacuum, because termination of an existing matrimonial regime clearly may have a rippling effect upon a larger class of persons and institutions by virtue of the laws of, including but not limited to, ownership, heritable rights, and obligations. Thus, I would find that the defendants’ failure to comply with the mandatory requirements of La. C.C. art. 2329 rendered the act absolutely null because “it violate[d] a rule of public order” as contemplated by La. C.C. art. 2030. Such a finding is best exemplified under the given facts. By their own admission, the defendants sought to terminate the ■community regime so as to avoid a multimillion dollar judgment rendered against Mr. Burger in favor of the plaintiff.

Finally, without conceding my position that the ruling of the trial court should be affirmed, the case should be remanded to the trial court for consideration of the merits of the plaintiff’s revocatory action in light of the majority’s position that the defendants’ failure to file a joint petition resulted in a relative nullity. The plaintiff timely filed its action in accordance with La. C.C. art. 2376, which affords a creditor the opportunity to assert the nullity of a judgment to the extent it has been prejudiced. The tenor of the litigation in the trial court shifted from the merits of the revocatory action to consideration of the issues concerning the validity of the marital agreement. A remand to the trial court would afford the plaintiff the opportunity to litigate fully its claims of fraud under La. C.C. art. 2376.

Clark, Justice,

dissenting.

hi respectfully dissent from the majority opinion for the reasons that follow. “[T]he paramount consideration in statutory construction is ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law.” M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371, p. 13 (La. 7/1/08), 998 So.2d 16, 27, citing State v. Johnson, 2003-2993, p. 12 (La. 10/19/04), 884 So.2d 668, 675. It is well established that “[t]he starting point for the interpretation of any statute is the language of the statute itself.” Dejoie v. Medley, 2008-2223 (La. 6/5/09), 9 So.3d 826, 829. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the provision is applied as written with no further interpretation made in search of the legislature’s intent. Id.’, La. Civ.Codé art. 9; La. R.S. 1:4.

At issue, La. C.C. art. 2329 clearly states, in no ambiguous terms:'

Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marnage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules. They may, however, subject themselves to the legal ’ regime by a matrimonial agreement at any time without court approval.

[Emphasis added]. A clear reading'of the code article sets forth two requirements before spouses can terminate a matrimonial regime during the marriage: (1) a lajoint petition by the spouses and (2) a finding by the court that the parties understand the consequences of their action and that such action serves their best interests. The legislature’s use of the word “only” and the conjunction “and” leave but one conclusion that both requirements must be satisfied .for the matrimonial agreement to have any legal effect.

The legislature expressly mandated the necessary, steps for spouses to take to terminate the community property regime. The majority is correct in' noting that the Civil Code does not provide an express remedy for the occasion when one of the steps is not met. However, I disagree with the conclusion my colleagues reach as to what type of nullity applies.

As governed by La.C.C. Art.- 2030, absolute nullities apply to contracts that violate “a rule of public order.” Conversely, a contract is relatively null when it violates a rule “intended for the protection of private parties.” See La. C.C. art. 2031. Here, I believe the majority erred in finding that Article 2329. is a rule intended only for the protection of private parties. While a primary intention of the article may be to safeguard the interest of an unsuspecting spouse, it does not preclude the existence of other intentions, namely, to protect the rights of the public at large. The legal regime of a couple, whether separate or community, affects the rights of far more people, classes, and institutions than just the parties themselves. Creditors, heirs, ■and legatees are affected, to name a few, as are the overarching systems of .property ownership, successions, inheritance, and obligations. For these reasons, I find the failure to strictly comply with the mandates of Article 2329: renders the matrimonial agreement absolutely null. I would affirm the judgment of the trial court.

      . Judge James T. Genovese, assigned as Justice ad hoc, sitting for Knoll, J., for oral argument. He now sits as an elected Justice at the time this opinion is rendered.
      Retired Judge Marion Edwards assigned as Justice ad hoc, sitting for Hughes, J., recused.

      . Because the factual and procedural background for the various actions that preceded this matter is set forth in exquisite detail in the appellate court's decision in this case, further elaboration is unnecessary to resolve this issue. See Radcliffe 10, L.L.C. v. Burger, 14-0347 (La.App. 1 Cir. 3/28/16), 191 So.3d 79.

      .The approval judgment stated: "the matrimonial agreement Y between Ronald G. Burger and Lynda O. Burger, terminating the legal community of acquets and gains and establishing a separation of property regime is approved in accordance with Civil Code article 2329.”

      . After ruling on Radcliffe’s motion for summary judgment, the original trial judge in this matter was elected to the court of appeal.

      . Two members of this twelve-member court did not participate in the decision.

      . "A matrimonial agreement is governed by the general rules of conventional obligations unless otherwise provided in [the] Title” of matrimonial regimes. La. C.C. art. 2328, 1979 Revision Comment (b),

      . "A matrimonial agreement may be executed by the spouses before or during marriage. It shall be made by authentic act or by an act under private signature duly acknowledged by . the spouses.” La. C.C. art. 2331.

      . See Matter of Boyer, 616 So.2d 730, 732 (La.App. 1 Cir. 1993), writ denied, 620 So.2d 882 (La. 1993); see also Katherine S. Spaht and Cynthia Samuel, Equal Management Revisited: 1979 Legislative Modifications of the 1978 Matrimonial Regimes Law, 40 La. L. Rev. 83, 90 (1979).

      . See 16 Andrea Carroll & Richard D. Moreno, Louisiana Civil Law Treatise: Matrimonial Regimes § 8:6, p. 855 (4th ed. 2013).

      . Codal provisions in other areas of the law expressly provide for a remedy. See La. C.C. art. 230, 2015 Revision Comment (a) and La. C.C.P. art. 4501 (addressing management of minor child’s property); La. C.C. arts. 1541 and 1573 (establishing form requirements for donations inter vivos and testaments); La. C.C. art. 2369.8 (affording the spouses the right to partition former community property); see also La. C.C. arts. 2330, 2337 (which restrict spouses’ ability to contract).

      . See La. C.C. art. 2374 (governing judgments of separation of property and providing "[wjhen the interest of a spouse in a community property regime is threatened to be diminished by the fraud, fault, neglect, or incompetence of the other spouse, or by the disorder of the affairs of the other spouse, he may obtain a judgment decreeing separation of property.”).

      . Such a finding is in accord with La. C.C. art. 2353, governing the unauthorized alienation of community property by a spouse without the concurrence of the other spouse.

      . See La. C.C. art. 2328, 1979 Revision Comment (b) (“The provisions of a matrimonial agreement may not prejudice third persons. See C.C. arts. 1502 (1870) and 2036 (Rev. 1984).”).

      . "The creditors of a spouse, by intervention in the proceeding, may object to the separation of property or modification of their matrimonial regime as being in fraud of their rights.” La. C.C. art. 2376.

      . Notably, Article 2376 limits the time for bringing an action for nullity of a judgment of separation of property, and it also limits the extent to which a creditor may seek to have a judgment that has been executed annulled.

      . Revocatory actions are provided for in La. C.C. art. 2036, contained in the general provisions on conventional obligations, as follows:
      An obligee has a right to annul an act of the obligor, or the result of a failure to act of the obligor, made or effected after the right of the obligee arose, that causes or increases the obligor's insolvency.

      . See La. C.C. art. 2376, 1979 Revision Comment ("A creditor may sue to annul a contract of separation of property as in fraud of his rights under C.C. Arts. 2036-2044 (Rev. 1984),” that is, under the laws governing re-vocatory actions.); see also La. C.C. art. 2329, 1979 Revision Comment (e) ("A matrimonial agreement in fraud of creditors may be set aside by the .revocatory action. A creditor may sue to annul a matrimonial agreement as in fraud of his rights under Articles 2036-2044 of the Civil Code as revised by Acts 1984, No. 331. Cf. C.C. Arts. 11 and 3183 (1870); Art. 2376, infra.”); La. C.C. art. 2328, 1979 Revisions Comment (b), quoted supra, n.13.

      .In light of this holding, discussion of the following issues are pretermitted: (1) whether the initial pleading in the Article 2329 action by Mr. Burger was amended as provided for in La. C.C.P. aft. 1154, (2) whether deficiencies in the initial petition" were waived or cured by the Burgers’ consent, or (3) whether the Burgers voluntarily acquiesced in the Article 2329 judgment, see La. C.C.P. arts. 2003 & 2085.

      . Because this case does not'involve one of the vices of form enumerated in La, C.C.P. art. 2002 (governing absolutely null judgments), Radcliffe’s challenge of the Article 2329 judgment involves' a vice of substance ' governed by La. C.C.P. art. 2004 (governing relatively null judgments). See La. C.C.P. art. 2002, 1960 Official Revision Comments (e & f); Adair Asset Mgmt., LLC/US Bank v. Honey Bear Lodge, Inc., 12-1690 (La.App. 1 Cir. 2/13/14), 138 So.3d 6, 11; see also Bernard v. Fireside Commercial Life Ins. Co., 633 So.2d 177, 184 (La.App. 1 Cir. 1993), writ denied, 93-3170 (La. 3/11/94), 634 So.2d 839. Louisiana C.C.P. art. 2004 requires a showing that the Article 2329 judgment was "obtained by fraud or ill practices.” Relative to Radcliffe, the Burgers’ failure to file a joint petition in the Article 2329 action did not constitute "improper. practice or procedure” amounting to "fraud or ill .practices” as contemplated by the decision in Kem Search, Inc. v. Sheffield, 434 So.2d l067, 1070 (La. 1983).
      Radcliffe’s challenge is also governed by La. C.C. art. 2376, which addresses a creditor’s rights relative to a judgment of separation of property. Consistent with La. C.C.P. art. 2004, Article 2376 affords the creditors of a spouse the right to sue to annul a judgment of separation of property “as being in fraud of their rights.” However, ”[a]fter execution of the judgment, [the creditors of a spouse] may assert nullity [of the judgment] only to the extent that they have been prejudiced.” La. C.C- art. 3376.
      Based on the manner in which this case was submitted for decision to the trial court, the record is devoid of any evidence to satisfy Radcliffe’s burden of proof under La. C.C. art. 2376 or La. C.C.P. art. 2004.


source: Caselaw Access Project

author: PER CURIAM: Hughes, J.,

license: Public Domain

text:
    STATE of Louisiana v. Chaka STEWART
    No. 2015-K-1845, No. 2015-K-1846
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM:

| ,We granted writs to examine the timeliness of a prosecution following defendant’s failure to appear in court after receiving actual notice and whether the court of appeal erroneously reversed the trial court’s ruling. The trial court granted defendant’s motion to quash, finding the prosecution untimely. For the following reasons, we affirm the court of appeal’s ruling, which reversed the quashal and found the state has no affirmative duty to locate an absent defendant, and remand these eases to the trial court for further proceedings.

PROCEDURAL BACKGROUND

On June . 29, 2011, defendant was charged by bill of information with one count of possession of marijuana, second offense; one count of possession with intent to distribute heroin; and one count of possession with intpnt to distribute cocaine. On August 3, 2011, he was charged by a separate bill of information with one count of drag racing resulting in serious bodily. injury. The trial' court ultimately transferred the drag racing case so as to track the previously filed narcotics case.

Following his appearances for status hearings and pre-trial matters, ^defendant received notice—proof of which is in the record—to appear on May 17, 2012. At some point before this date, however, defendant was arrested on federal charges, and thus did not appear as scheduled on May 17, 2012. On that date,-a minute entry reflects that defense counsel did appear and announce that defendant was detained in federal custody. The matter was continued, and the minute entry also shows that the state indicated its intent to secure defendant’s presence for the next scheduled court date.

On July 23,2012, the state filed a motion and order for writ of habeas corpus ad prosequendum directed to the United States Marshal Service for the Eastern District of Louisiana, which the trial court granted. No further action was taken on the writ, however, and thus defendant again failed to appear. The matters were continued several times over the course of the following year, with each minute entry indicating again that defendant was in federal custody and that the state was to file a writ to secure his presence.

On. July 23, 2013, one year after its first motion, the state filed a second motion and order for writ of habeas corpus ad prose-quendum—this time directed to the specific penitentiary in Arkansas where defendant was serving a federal sentence. Still, defendant’s absence from court persisted. After several more continuances, the trial court issued an alias capias for defendant in February 2014; and at a bond forfeiture hearing on April 30, 2014, counsel for the surety appeared and advised that defendant was in federal custody, in Arkansas, and provided a certificate of incarceration. The matter was continued, and on July 25, 2014, defendant filed a motion to quash all charges on speedy trial grounds, which the trial court granted.

The court of appeal reversed the quashal, because even though the state knew that defendant was in federal custody, the two-year limitations period within 13which it had to bring him to trial was interrupted by defendant’s initial failure to appear and did not begin to run anew until the surety filed the certificate of defendant’s incarceration in Arkansas on April 30, 2014. Thus, the court of appeal found that the state had two years from that date, ie., until April 30, 2016, to bring defendant to trial. State v. Stewart, 15-0135 (La.App. 4 Cir. 9/9/15), 176 So.3d 465; State v. Stewart, 15-0136 (La.App. 4 Cir. 9/16/15), 2015 WL 5511563.

ANALYSIS

After careful review, we find that the court of appeal reached the correct result. We agree that when defendant failed to appear on May 17, 2012, despite having actual notice that he was required to, the two-year period within which the state was required to bring defendant to trial was interrupted. See La.C.Cr.P. art. 578(A)(2). We also agree that in the event of such an interruption, La.C.Cr.P. art. 579(A)(3) does not require the state to search for a defendant who has failed to appear. State v. Romar, 07-2140 (La. 7/1/08), 985 So.2d 722. Rather, the limitations period begins to run anew only when the state receives notice of an incarcerated defendant’s custodial location. See, e.g., State v. Baptiste, 08-2468 (La. 6/23/10), 38 So.3d 247 (limitations period did not begin to run anew until authorities from parish in which defendant was incarcerated contacted authorities where charges were pending and informed them of defendant’s custodial status and location).

|4Here, the record indicates that the state had notice of defendant’s custodial location by July 23, 2013—when it filed its motion and order for writ of habeas corpus ad prosequendum directed to the specific penitentiary in Arkansas where defendant was in federal custody. Before this date, though the record suggests the state had some indication of defendant’s general whereabouts, ie., according to defense counsel’s advisement, he was “in federal custody,” the state would have had to take affirmative steps to discern defendant’s specific location.

As we explained in Romar, the state has no affirmative duty to locate an absent defendant. Rather, it was incumbent upon defendant to provide the state with notice of his location to trigger commencement of a new limitations period under La.C.Cr.P. art. 578. See Romar, 07-2140, pp. 7-8, 985 So.2d at 727 (“The burden ... falls not on the state to show that defendant had placed himself outside of its control .., but on defendant and his sureties to avoid the consequences of his failure to appear ... [0]ne of those consequences, since 1984, is the interruption of the time limits placed on trial.”). Because the record does not show that the state had notice of defendant’s custodial location before July 23, 2013, when it filed a writ specifically directed to the Arkansas penitentiary, the trial court erred in granting the motions to quash filed on July 25, 2014.

Unlike the court of appeal, we find it immaterial whether the more specific notice requirements of La.C.Cr.P. art. 579(C) were met, because Subpart C did not go into effect until August 1, 2013, after commencement of the prosecution in this case. Given that Subpart C imposes new substantive obligations on a defendant, and because those obligations impact a defendant’s constitutional right to a speedy trial, it does not apply retroactively. This is consistent with the Court’s prior decision that La.C.Cr.P. art. 579(A)(3) could not be retroactively applied. See State v. Groth, 85-1528 (La. 1986), 483 So.2d 596, 599; see also State v. Kraft, 86-0155 (La. App. 5 Cir. 1987), 501 So.2d 313, 315 (“Moreover, since [La.C.Cr.P. art. 579(A)(3) ] provides for an additional method for interruption of the prescriptive period, it bears upon a defendant’s right to a speedy trial. Thus, [it] should not be given retroactive application in light of the constitutional safeguard of the right to a speedy trial.”). Though we maintain that the state has no duty to take affirmative steps to locate an absent defendant, we also note that in circumstances such as these, in which the state has become aware (whether by its own efforts or otherwise) of an absent defendant’s location, that awareness is sufficient in a case initiated before Subpart C’s effective date to trigger the commencement of a new limitations period. Thus, because the record supports a finding that the state was aware of defendant’s custodial location by July 23, 2013, the limitations period of La.C.Cr.P. art. 578 began to run anew on that date.

Moreover, we note that the limitations period has been suspended during the pen-dency of this, litigation following the trial court’s rulings on the motions to quash. Though La.C.Cr.P. art. 580 provides that the filing of a motion to quash suspends the limitations period only until the court has ruled on the motion, because the parties have pursued review in the court of appeal and here, the limitations period has been suspended pending finality of this review. La.C.Cr.P. art. 922; see, e.g., State v. Fish, 05-1929, p. 4 (La. 4/17/06), 926 So.2d 493, 495 (“[Cjounsel’s motion to quash the prosecution on grounds of prescription then suspended that date and continues to suspend it while the appellate courts review the merits of the prescription issue.”); State v. Brocato, 99-1620 (La. App. 4 Cir. 9/15/99), 744 So.2d 178, 180 (“When the trial court granted relator’s first motion to quash, the State could not try relator; and it remained unable to do so until the reversal of the trial court’s ruling became final.”), writ denied, 99-2943 (La. 12/17/99), 751 So.2d 883. Once this ruling becomes final, the law affords the state |fione year to commence trial on the charges. See La.C.Cr.P. art. 580 (though the balance of the new two-year period that commenced July 23, 2013 would have been the 363 days that remained after defendant filed the motions to quash, Art. 580 endows the state with a minimum of one year to commence trial after a suspension of the limitations period).

Because we agree that the motions to quash were granted in error, we remand to the trial court for further proceedings consistent with this opinion.

AFFIRMED AND REMANDED.

JOHNSON, C.J., dissents.

Hughes, J.,

dissenting.

| Respectfully, this case must be distinguished from State v. Romar and is much closer to State v. Baptiste.

A distinction should be drawn between the situation where a properly noticed defendant voluntarily fails to appear in court (Romar) and the current situation where it was physically impossible for the defendant to appear because he was in federal custody. This fact -was known to all and appears in the minutes of court. The defendant even provided his attorney with án affidavit stating same so that his attorney could continue to represent him in his absence. This is not a situation where the state has no duty to locate a truly “absent” defendant pursuant to Romar.

      . The court of appeal further found that La. C.Cr.P. art. 579(C), which went into effect on August 1, 2013, retroactively applied. Article 579(C) provides that when a defendant fails to appear and is subsequently incarcerated, he must either appear in open court where the charges are pending, or provide the state with one of two specific forms of notice of his custodial location in order for the limitations period to begin running anew. The court found defendant failed to meet those specific notice requirements until April 30, 2014, upon the surety’s filing of the certificate of incarceration.
      Because it found that the trial court erred in granting the motions to quash, the court of appeal pretermitted the issue of whether the trial court also erred in conducting the hearing on the motion without defendant’s presence in court. Stewart, 15-0135, p. 5, 176 So.3d at 468.


author: CRICHTON, J.,

text:
    STATE of Louisiana IN the INTEREST OF M.J.
    NO. 2017-CK-0730
    Supreme Court of Louisiana.
    05/12/2017
   CRICHTON, J.,

additionally concurs and assigns reasons:

_JjM. J. and his attorney appeared in juvenile court for a hearing when M.J. allegedly attacked two court officers and resisted another. The State charged M.J. with two counts of battery of a police officer and one count of resisting a police officer. M.J.’s attorney continued to represent M.J as to both charges. The State, by its Motion to Issue Subpoena, sought to subpoena MJ.’s attorney to testify. The trial court granted this motion, and the court of appeal reversed. I agree with this Court’s writ denial but write separately to address issues that.could arise under the Rules of Professional Conduct.

M.J.’s attorney witnessed the incident, and this fact could make it challenging for her to represent M.J. in the newest charge and communicate with candor toward the tribunal. See Rules of Prof. Conduct. R. 3.3(a)(1) (providing that a lawyer shall not knowingly “make a false statement of fact or law to a tribunal....”). Even more, a lawyer who represents a client in an adjudicative proceeding and knows that a person “has engaged in criminal or fraudulent conduct related to the proceeding” may have to disclose that to the tribunal. See id. at 3.3(b). Finally, M.J.’s attorney is also now unable to provide nonprivileged testimony that could be beneficial to M.J. See id. at 3.7(a) (“A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless....”).

Based on the information provided in this writ application, I am unable to determine whether this representation violates the Rules of Professional Conduct. |?But that could be known to MJ.’s - attorney. And the potential issues that emanate from this writ application should act as a reminder to members of the bar to be steadfast in their compliance with the Rules of Professional Conduct. See id. at 8.4(a) (stating it is professional misconduct to “[vjiolate or attempt to violate” the Rules of Professional Conduct.): ■

GENOVESE, J., would grant.


author: PER CURIAM

text:
    IN RE: Johnny S. ANZALONE
    NO. 2017-B-0387
    Supreme Court of Louisiana.
    05/12/2017
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

| ¾ This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Johnny S. Anzalone, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Anzalone, 14-0812 (La. 5/16/14), 139 So.3d 991.

UNDERLYING FACTS

15-DB-004

In January 2013, respondent was arraigned in Tangipahoa Parish on charges of first offense DWI and exceeding the speed limit. During the course of the criminal proceedings, respondent underwent a drug screening which indicated positive results for cocaine and methadone. On March 17, 2014, following a bench trial, respondent was found guilty of the DWI charge. In December 2014, a bench warrant was issued based upon respondent’s failure to appear in court for monitoring.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects | ^adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

15-DB-053

On March 14, 2014, respondent was arrested in Rapides Parish for second offense DWI, improper lane usage, and driving under suspension. At the time of his arrest, respondent admitted to the arresting officer that he was under the influence of “meth.” Respondent pleaded nolo con-tendere to a charge of first offense DWI, and the State agreed to nolle prosequi the remaining charges.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) and 8.4(b).

DISCIPLINARY PROCEEDINGS

In February 2015, the ODC filed formal charges against respondent in 15-DB-004. Respondent answered the formal charges and acknowledged that he was found guilty of first offense DWI. He further acknowledged that his drug screen was positive for methadone and for cocaine, but he noted that the methadone was prescribed for him by a licensed medical doctor. Respondent denied that he used or voluntarily ingested any cocaine.

In October 2015, the ODC filed formal charges against respondent in 15-DB-053. Respondent answered the formal charges, denying any misconduct. The two sets of formal charges were consolidated before proceeding to a formal hearing on the merits.

Formal Hearing

The hearing committee conducted the formal hearing on January 6, 2016. The ODC introduced documentary evidence but called no witnesses to testify | ¡(before the committee. Respondent did not introduce documentary evidence. However, he did testify on his own behalf and on cross-examination by the ODC.

In his testimony before the committee, respondent indicated that he was conditionally admitted to the practice of law, subject to a two-year period of probation during which he was required to enter into a recovery agreement with the Judges and Lawyers Assistance Program (“JLAP”). He later entered into a five-year recovery agreement with JLAP and successfully completed the program. Respondent admitted that he takes methadone every day to control his pain and is under the care of a doctor, but indicated that attempts are being made to get him into other pain management plans with other doctors. Respondent testified that he has been classified as totally disabled and is covered under Medicaid, which paid for his recent surgery, described as a five-level laminec-tomy.

Hearing Committee Report

After considering the evidence and testimony presented at the hearing, the hearing committee summarized respondent’s testimony as follows:

Respondent offered that he was involved in a serious automobile accident in 1986 that resulted in permanent back and neck pain. He experienced difficulties obtaining prescription medications, and in lieu thereof, receives methadone treatment from Choices of Louisiana, Inc. According to respondent, he was “dosed” with cocaine, which resulted in the positive test for that substance. Respondent indicated, and the evidence demonstrates, that he was subject to drug abuse counseling as a result of his nolo contendere plea in Rapides Parish. Respondent noted that his drug abuse counselor found that he was not in need of drug abuse treatment.

| ¿Based on this testimony and the other evidence in the record, the hearing committee made factual findings consistent with the underlying facts set forth above. Based these findings, the committee determined respondent violated Rules 8.4(a) and 8.4(b). The committee did not find a violation of Rule 8.4(d).

The committee found that respondent violated duties owed to the public and the legal profession. The violation of these duties was at least negligent and could have led to grave injury to other motorists or pedestrians. However, there was no actual harm in either of respondent’s incidents.

In aggravation, the committee found a selfish motive and substantial experience in the practice of law (admitted 1994). While there was no dishonest motive, the act of driving a motor vehicle under the influence of a narcotic represents an inherently selfish motive in that it placed respondent’s convenience above the safety of others. In mitigation, the committee found the absence of a prior disciplinary record and “no indication that respondent failed to cooperate in the disciplinary process.” In the committee’s opinion, respondent suffers from a physical condition that has led to a chemical dependency, if not outright addiction.

After further considering this court’s prior jurisprudence addressing similar misconduct, the committee recommended that respondent be suspended from the practice of law for one year and one day.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee’s findings of fact are supported by the testimony and documentary evidence and do not appear to be manifestly erroneous. The board also determined that the committee correctly applied the Rules of Professional Conduct. Accordingly, the board adopted the committee’s findings of fact and law.

|RThe board determined respondent violated duties owed to the public and the legal profession by failing to maintain the high standards of personal integrity upon which the public relies. Although his offenses did not result in actual injury to anyone, the potential for injury was great. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction is suspension.

In aggravation, the board found substantial experience in the practice of law and selfish motive. In mitigation, the board found.the absence of a prior disciplinary record. The board declined to adopt the mitigating factor of physical or mental disability or dependency, noting that the record does not contain the necessary evidence to support such a finding. Indeed, respondent failed to offer any admissible evidence or testimony to support a claim of chemical dependency. Rather, he hás argued that he is not in need of treatment.

■After further-considering this court’s prior jurisprudence addressing similar misconduct, the board recommended respondent be suspended from the practice of law for one year and one day, retroactive to the date of his interim suspension. The board further recommended respondent be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

J^DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. .V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error' standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La. 11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La. 3/11/94), 633 So.2d 150.

The record of this matter supports a finding that respondent was twice convicted of DWI and tested positive for cocaine. This misconduct amounts to a violation of Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La. 1984).

Respondent violated duties owed to the public and the legal profession, causing the potential for serious harm. Fortunately, no actual harm resulted. Respondent’s misconduct was at least grossly negligent, if not knowing. The baseline sanction for this type of misconduct is suspension. The record supports the aggravating and mitigating factors found by the disciplinary board.

17Turning to the issue of an appropriate sanction, we find guidance from the cases of In re: Baer, 09-1795 (La. 11/20/09), 21 So.3d 941, In re: Guidry, 11-1208 (La. 9/23/11), 71 So.3d 256, and In re: James, 12-2701 (La. 3/1/13), 108 So.3d 747. Each of these cases involved attorneys who were arrested for and/or convicted of DWI on two separate occasions. The attorneys were not participating in JLAP or otherwise able to prove their substance abuse problems were resolved, and, thus, the court suspended each of them for one year and one day, with no time deferred. Given such a sanction, the attorneys had to show compliance with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E) before being reinstated to the practice of law.

Like the attorneys in these aforementioned cases, respondent’s abuse of alcohol and/or other substances 'was a causative factor in his misconduct. In light of his history of substance dependence, we agree that it is reasonable to require respondent to apply for reinstatement and show his compliance with the reinstatement criteria set forth in Supreme Court Rule XIX-, § 24(E) before being reinstated to the practice of law. Particularly relevant to his situation is Rule XIX, §' 24(E)(3), whieh states:

If the. lawyer was suffering under a physical or mental disability or infirmity -.at the time of suspension or disbarment, including alcohol or other drug abuse, the disability or infirmity has been removed. Where alcohol or other drug abuse was a causative factor in the lawyer’s misconduct, the lawyer shall not be reinstated or readmitted unless:
(a) the lawyer has pursued appropriate rehabilitative treatment;
(b) the lawyer has abstained from the use of alcohol or other drugs for at least one year; and
(c).the lawyer is likely to continue to abstain from alcohol or other drugs.

A suspension for one year and one day, with no time deferred, would accomplish .this.' Accordingly, we will ad'opt the board’s recommendation and suspend |srespondent from the practice of law for one yéar and one day, retroactive to May 16, 2014, the date of his interim suspension. '

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Johnny S. Anza-lone, Louisiana Bar Roll number.22723, be and he hereby is suspended from the practice of law for one year and one day, retroactive tp May 16, 2014, the date of his interim suspension. All costs and expenses in the matter are assessed, against respondent in accordance with Supreme Court Rule XIX, § 10.1, with , legal interest to commence thirty days from the date of finality of this court’s judgment, until paid.

• JOHNSON, C.J., concurs.

      . Approximately one month after the hearing, respondent submitted a document purporting to be a certification relative to his completion of a DWI education session. The ODC objected to the admission of the document as hearsay. The committee chair sustained the objection but allowed the submission of the document as a proffer.

      . In order to prove the mitigating factor of chemical dependency, ABA Standard'9.32(i) provides the lawyer must prove the following four factors by clear and convincing evidence: (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability; '(2) the chemical dependency or mental disability caused the misconduct; (3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely. See In re: Stoller, 04-2758 (La. 5/24/05), 902 So.2d 981.


text:
    IN RE: Dwight D. POIRRIER
    NO. 2017-B-0370
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent was twice arrested for driving under the influence of alcohol. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Dwight D. Poirrier, Louisiana Bar Roll number 20570, be suspended from the practice of law for a period of one year and one day. It is further ordered that this suspension shall be deferred in its entirety and that respondent shall be placed on unsupervised probation for a period of two years. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


author: PER CURIAM: JOHNSON, C.J., WEIMER, J.,

text:
    STATE of Louisiana v. Alfred HARRISON
    No. 2016-KO-0178
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM:

| defendant was indicted for six counts of aggravated rape the state alleged he committed when he was between 13 and 16 years old. Children’s Code article 305(A)(1)(a) automatically divests the juvenile court of jurisdiction when a child is 15 years of age or older at the time of the commission of aggravated rape and an indictment charging that, offense is returned. After the indictment was returned,- the case was transferred from the juvenile court to the district court. The district court then quashed the indictment because, among other reasons, defendant allegedly committed two of the offenses when he was between 13 and 15 years old, and therefore he was potentially younger than 15 years old at the time. The state then filed an amended bill of information in the district court charging defendant with six counts of forcible rape committed over the same three-year span. Defendant entered a dual plea of not guilty and not guilty by reason of insanity and proceeded to a bench trial.

The parties stipulated at trial that defendant committed the acts constituting forcible rape as alleged by the state. Thus, the only contested fact at trial was defendant’s sanity at the time of the offenses. The state also attempted to orally |2amend the bill of information mid-trial to allege that all six offenses were committed when defendant was at least 15 years old. After trial, the district court found defendant guilty as charged on all counts and sentenced him to serve six concurrent terms of 40 years imprisonment at hard labor with the first two years of each to be served without benefit of parole, probation, or suspension of sentence. The court of appeal affirmed defendant’s convictions and sentences. State v. Harrison, 15-1044 (La.App. 1 Cir. 12/23/15), 2015 WL 9466872 (unpub’d). In affirming, the court of appeal rejected defendant’s claim that the district court lacked jurisdiction. The court of appeal erred to the extent that it affirmed the convictions and sentences for counts one and two, which the state originally alleged in the grand jury indictment defendant committed when he was between 13 and 15 years old.

Because of the evidentiary focus at trial on the question of sanity, the record is not well-developed with regard to the timing of the offenses. However, it is clear that the state originally alleged defendant committed two forcible rapes when he was between 13 and 15 years old (and therefore potentially 13 or 14 years old at the time), and committed the remaining four when he was 15 or 16 years old. For juveniles who are 14 years old, Children’s Code article 857(A) authorizes transfer from the juvenile court to the district court for certain offenses after the juvenile court conducts a hearing to determine if transfer is appropriate. No such hearing was held here. For juveniles who are 13 years old, no provision of the Children’s Code authorizes transfer from the juvenile court to the district court. Because the state failed to establish definitively before the grand jury that two of the offenses were committed when defendant was at least 15 years old, the automatic transfer provision of Article 305(A) could not confer jurisdiction on the district court over those offenses. Because the timeframe alleged by the state left it possible that defendant committed two offenses when he was either 13 or 14 years old, jurisdiction was either not transferra-ble to the district court or not correctly ^transferred to the- district court by the grand jury indictment, notwithstanding the state’s mid-trial efforts to cure the lack of jurisdiction by orally amending the subsequently filed bill of information.

It has long been .established that lack of jurisdiction is a defect fatal to a criminal prosecution:

And, so far as nullity resulting from absence of jurisdiction is concerned, why that is a matter which in the words of this court in the case of Decuir v. Decuir, 105 La. [481,] 485, 29 So. [932,] 934 [ (1901) ], “may be invoked by any one at any time and anywhere.”

State v. Nicolosi, 128 La. 836, 846, 55 So. 475, 478 (1911) (on rehearing). Because jurisdiction was not correctly transferred from the juvenile court to the district court for- two. counts, the convictions and sentences for those two offenses are nullities. Therefore, we grant defendant’s application in part to vacate his conviction and sentences for counts one and-two. The application is otherwise denied and defendant’s remaining convictions and sentences for four counts of forcible rape are not affected by this ruling..

AFFIRMED IN PART, REVERSED IN PART, CONVICTIONS AND SENTENCES ON COUNTS'ONE AND TWO VACATED

JOHNSON, C.J.,

dissents in part and assigns reasons.

|J respectfully dissent' from that portion of the majority’s' opinion denying defendant’s application relative to the remaining convictions and sentences for four counts of forcible rape. In my view, defendant has asserted a valid argument for ineffective assistance of counsel relative to the stipulation of guilt entered by his counsel at trial.

At trial, the State offered a stipulation that the defendant committed the acts as alleged in the bill of information, introducing videotaped interviews of the victims as a factual basis in support of the stipulation. Noting his review of the videotapes, defense counsel informed the trial court that he would enter into the stipulation based on his understanding that, if called at' trial, the witnesses would testify in accordance with their statements. Thus, under these factual circumstances, it is clear the stipulation was in actuality- a plea of guilt, entitling defendant to the constitutional protections provided in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). I find it noteworthy that defense counsel’s stipulation went beyond simply stipulating to the witnesses’ testimony. Defense counsel actually conceded defendant committed the acts. Compare State v. Hall, 47,564 (La.App. 2 Cir. 12/12/12), 108 So.3d 188, 195-96 and State v. Harris, 470 So.2d 601, 603 (La. App. 1st Cir. 1985), unit denied, 477 So.2d 1123 (La. 1985).

Before a plea of guilty can be accepted, the trial court must determine that the accused has a full understanding of what the plea connotes and its consequences, specifically that the defendant understands the nature of the charges, his right to .a jury trial, the acts sufficient to constitute the offense for which he is charged and the range of possible sentences. Boykin, supra; State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). As the Supreme Court noted in Boykin, “a plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” 395 U.S. at 242, 89 S.Ct. 1709.

The record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set out a two-pronged test for proof of ineffective assistance of counsel: the defendant must show that his attorney’s performance was deficient and that the deficiency, prejudiced him so that the outcome would have been different absent counsel’s ineffectiveness. An error -is considered prejudicial if it was so serious as to deprive the defendant of a fair trial .or “a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Evaluated under these standards, I would find the actions of defense counsel in entering the stipulation of guilt, without ensuring defendant received the constitutional protections to which he was entitled under Boykin, were deficient and the defendant was prejudiced by his actions. Thus, I would vacate defendant’s remaining four convictions.

WEIMER, J.,

additionally concurring.

|,I write to point out that while the defendant’s writ application is granted and his conviction for two of the six counts is vacated, the defendant’s ultimate term of imprisonment is unaffected by this court’s ruling. For each count, the district court imposed a 40-year sentence, to run concurrently with the sentence for every other count. Therefore, this .court’s action of vacating two of those counts ■ because of a lack of jurisdiction still leaves untouched four -, concurrent sentences of 40 years. If one recalls that the defendant stipulated at trial to committing the acts of forcible rape on each victim, any perception that the defendant has scored a victory from this court’s review of a jurisdictional defect should be tempered by the reality that such victory is hollow. The total sentence of 40 years at hard labor is unchanged.


author: PER CURIAM: ■

text:
    STATE of Louisiana v. Carl LABAT
    No. 2016-KP-0549
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM: ■

I,Denied. Relator fails to show appellate counsel provided ineffective assistance by failing to present claims that were clearly stronger than those presented and that there was a reasonable probability those claims would have prevailed on appeal. See Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 765, 145 L.Ed.2d 756 (2000); see also Mayo v. Henderson, 13 F.3d 528, 533-34 (2d Cir. 1994). In addition, relator fails to show appellate counsel provided ineffective assistance by failing to pursue discretionary review after the conviction and sentence were affirmed on appeal. See generally Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301, 71 L.Ed.2d 475 (1982).

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 baccord 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: PER CURIAM:

text:
    STATE EX REL. Derrick FORD v. STATE of Louisiana
    No. 2016-KH-0126
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM:

h 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 at least 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 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. Darnell LEWIS v. STATE of Louisiana
    No. 2016-KH-0125
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM:

| iDenied. 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 at least 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 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. Joe BROWN v. STATE of Louisiana
    No. 2016-KH-0100
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM:

| denied. Relator fails to show he 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). Relator is also not entitled to an evidentiary hearing on his remaining claims. See La.C.Cr.P. art. 929(A); State ex rel. Tassin v. Whitley, 602 So.2d 721 (La.1992).

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 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 relator 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. Joseph SMITH v. STATE of Louisiana
    No. 2016-KH-0070
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM:

h 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. Moreover, relator’s sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. The application is also repetitive. La.C.Cr.P. art. 930.4. .

Relator has now fully litigated two 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 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 |2applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this p,er curiam.


text:
    STATE EX REL. Kenya J. WATSON v. STATE of Louisiana
    No. 16-KH-0069
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM:

Denied. The application is repetitive and successive. La.C.Cr.P. art. 930.4. 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 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. John R. THOMAS v. STATE of Louisiana
    No. 16-KH-0068
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM:

11Denied. Relator’s claim about the.admission of the victims’ recorded interviews is repetitive. La.C.Cr.P. art. 930.4(A). Relator also fails to show that he 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). See also State v. Lee, 14-2374, pp. 8-9 (La. 9/18/15), 181 So.3d 631, 638 (attempt “to re-litigate a claim that has been previously disposed of, by couching it ás a post-conviction ineffective assistance of counsel claim, [should be] generally unavailing.”). Finally, relator shows no abuse of discretion in the district court’s denial of his requests to supplement his application and for a free copy of the trial transcript. See State ex rel. Duhon v. Whitley, 92-1740 (La. 9/2/94), 642 So.2d 1273(district court has discretion.to decide whether to allow a post-conviction petitioner to amend or supplement a timely-filed application); see also State ex rel. Bernard v. Cr.D.C., 94-2247 (La. 4/28/95), 653 So.2d 1174.

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. Arthur “Butch” GAINES v. STATE of Louisiana
    No. 2016-KH-0066
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM:

| tDenied. Relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated two 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 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. Jeremy PEROT v. STATE of Louisiana
    No. 2016-KH-0059
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM:

[ t Denied. Relator’s actual innocence claim does not warrant relief. See State v. Pierre, 13-0873 (La. 10/15/13), 125 So.3d 403; State v. Conway, 01-2808 (La. 4/12/02), 816 So.2d 290.

Relator has now fully litigated two 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. Tracy HARRIS, Sr. v. STATE of Louisiana
    No. 2016-KH-0052
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM:

| denied. Relator fails to show a particularized need for the records that he seeks. State ex rel. Bernard v. Cr.D.C., 94-2247, p. 1 (La. 4/28/95), 653 So.2d 1174, 1175.

GENOVESE, J., recused.


text:
    STATE EX REL. Kenneth Dewayne PALMER v. STATE of Louisiana
    No. 2016-KH-0040
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM:

| iDenied. 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.

Moreover, relator has previously exhausted his right to state collateral review. See State ex rel. Palmer v. State, 15-1029 (La. 3/4/16), 186 So.3d 1150.


text:
    STATE EX REL. David HAMILTON v. STATE of Louisiana
    No. 2016-KH-0038
    Supreme Court of Louisiana.
    05/12/2017
   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 three 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 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. Mark Q. TAYLOR, Jr. v. STATE of Louisiana
    No. 2016-KH-0033
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM:

| í Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he 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 at least 14 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 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, 12unless 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. John E. SPELLMAN v. STATE of Louisiana
    No. 16-KH-0098
    Supreme Court of Louisiana.
    05/12/2017
   PER CURIAM:

| ^Denied. Relator’s sentencing claim is not cognizable oh collateral review/ La. C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. Moreover, relator has previously exhausted his right to state collateral review. See, e.g., State ex rel. Spellman v. State, 15-1255 (La. 1/15/16), 182 So.3d 963; State ex rel. Spellman v. State, 15-1613 (La. 1/15/16), 182 So.3d 963.


text:
    STATE EX REL. Kevin ALEXANDER v. STATE of Louisiana
    No. 2016-KH-0053
    Supreme Court of Louisiana.
    05/12/2017
   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. Moreover, relator’s sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030.

Relator has now fully litigated three 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 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 aménded 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 preview. The district court is ordered to record a minute entry consistent with this per curiam.

HUGHES, J., would grant the writ,


text:
    Philip SHELTON v. Nancy PAVON
    NO. 2017-CC-0482
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. L, No. 2013-11140; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0758

| ¶ Granted.


text:
    STATE of Louisiana v. Christopher H. JOSEPH
    NO. 2016-KO-0857
    Supreme Court of Louisiana.
    Supreme Court of Louisiana April 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. B, No. 22090-08; to the Court of Appeal, Third Circuit, No. 15-957;

11 Denied.


text:
    STATE EX REL. James M. LAWRENCE v. STATE of Louisiana
    NO. 2015-KH-1616
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St, Tammany, 22nd Judicial District Court Div. H, No. 542222-1; to the Court of Appeal, First Circuit, No. 2015 KW 0865;

| TPenied.


text:
    Ron Kirk THOMPSON v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2017-CI-0542
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish, of E. Baton Rouge, 19th Judicial District Court Div. F, No. C640, 945; to the Court of Appeal, First Circuit, No. 2016 CW 0215;

11 Writ not considered. Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    STATE EX REL. Dennis R. WIGGINS v. STATE of Louisiana
    NO. 2017-KH-0566
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 319-077; to the Court of Appeal, Fourth Circuit, No. 2016-K-0783

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


text:
    STATE of Louisiana v. Jacorroyn Lavell WILSON
    NO. 2017-KO-0217
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Desoto, 42nd Judicial District Court Div. B, No. 15-CR-26410; to the Court of Appeal, Second Circuit, No. 50,865-KA;

hNot considered. See Louisiana Supreme Court Rule X, § 4.


text:
    STATE EX REL. Stephen Michael MCGILL v. STATE of Louisiana
    NO. 2017-KH-0455
    Supreme Court of Louisiana.
    April 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 321903; to the Court of Appeal, Second Circuit, No. 50,-994-KA

11 WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct. Rule X § 5.


text:
    C.C. v. OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER; et al.
    NO. 2017-OC-0597
    Supreme Court of Louisiana.
    May 1, 2017
   Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court, Div. I, No. 644213; to the Court of Appeal, First Circuit, No. 2016 CA 1299

11 Stay denied. Writ denied.


text:
    Shunquita MORGAN, Individually and obo, Her Minor Child, Demondre Morgan v. EAST BATON ROUGE PARISH SCHOOL BOARD
    No. 2017-C-0457
    Supreme Court of Louisiana.
    May 1, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 619,633; to the Court of Appeal, First Circuit, No. 2016 CA 1065

11 Denied.


text:
    STATE of Louisiana v. Warren Cornelius WILLIAMS
    NO. 2016-KO-1035
    Supreme Court of Louisiana.
    May 1, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 547362; to the Court of Appeal, First Circuit, No. 2015 KA 0699;

| TPenied.


text:
    STATE of Louisiana v. Rodney Joe LEWIS
    NO. 2016-KO-1052
    Supreme Court of Louisiana.
    May 1, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Desoto, 42nd Judicial District Court Div. B, No. 14-CR-25768; to the Court of Appeal, Second Circuit, No. 50,546-KA,

11 Denied.


text:
    STATE of Louisiana v. Gerard K. ACHELLES
    NO. 2017-KO-0227
    Supreme Court of Louisiana.
    May 1, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 14-269; to the Court of Appeal, Fifth Circuit, No. 16-KA-170

| Denied.


text:
    Lisa MIDDLEBROOKS O/B/O Mark A. MIDDLEBROOKS v. CITY OF BASTROP
    NO. 2017-C-0286
    Supreme Court of Louisiana.
    May 1, 2017
   Applying , for Writ of Certiorari and/or Review Office of Workers’ Compensation, District 1E, No. 15-01789; to the Court of Appeal, Second Circuit, No. 51,073-WCA

| Denied.

WEIMER, J., would grant.


text:
    Michael Louis MORGAN, Sr. v. Diana D. MORGAN
    NO. 2017-C-0454
    Supreme Court of Louisiana.
    May 1, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. K, No. 99-12661; to the Court of Appeal, First Circuit, No. 2016 CA 0964;

| Denied.


text:
    STATE of Louisiana v. Peter SIMMONS
    NO. 2016-KO-0991
    Supreme Court of Louisiana.
    May 1, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, Ño. 14-316; to the Court of Appeal, Fifth Circuit, No. 15-KA-791

| t Denied.


text:
    Derrick DAVIS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2016-CI-0029
    Supreme Court of Louisiana.
    May 1, 2017
   Applying For Writ, of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. C634,-849; to the Court of Appeal, First Circuit, No. 2015 CA 0377;

h Demed-


text:
    STATE of Louisiana v. Andrew DEBERRY
    NO. 2016-KO-0959
    Supreme Court of Louisiana.
    May 1, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. C, No. 89669; to the Court of Appeal, Second Circuit, No. 50,-501-KA;

| Remed-


text:
    STATE of Louisiana v. Keith C. KISACK
    NO. 2016-K-0797
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. B, No. 510-800; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0083;

h Granted.


text:
    STATE of Louisiana v. Jason Wesley HOLCOMBE
    NO. 2016-KO-1043
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. B, No. 30,973; to the Court of Appeal, First Circuit, No. 2015 KA 1615

| denied.


text:
    STATE of Louisiana v. Bobby Christopher ISIDORE
    NO. 2016-K-0930
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 540658-4; to the Court of Appeal, First Circuit, No. 2015 KA1565;

11 Denied.


text:
    STATE of Louisiana v. Latrell COLEMAN
    NO. 2017-KP-0558
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. L, No. 503-077; to the Court of Appeal, Fourth Circuit, No* 2016-K-1281

11 Granted. The ruling of the court of appeal is reversed and set aside; trial court judgment is reinstated.

WEIMER, J., would deny the writ application.

HUGHES, J., would deny the writ application.

GENOVESE,J., would deny the writ application.


text:
    Tina LEONARD, individually and on behalf of her deceased husband, John Benjamin Campbell v. Beauregard TORRES, III, Pointe Coupee Parish Sheriff, and Captain Michael Hebert, individually and in his capacity as Warden of the Pointe Coupee Detention Center
    NO. 2017-CC-0269
    Supreme Court of Louisiana.
    May 12, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Pointe Coupee, 18th Judicial District Court Div. A, No. 45414; to the Court of Appeal, First Circuit, No. 2016 CW 1484;

h Granted. Remanded to the Court of Appeal, First Circuit, for briefing, argument, and full opinion.


text:
    William DAWSON, individually, and as surviving Father of Willis Batiste v. Aswald FALGOUT, Ryan Singelton, Harry Lee, in his capacity as Sheriff of Jefferson Parish, and ABC Insurance Company Phyllis Batiste, individually and as the Natural Tutor of her minor children, Jasmine Sears and Bryant Sears, Jr. and William Batiste v. Harry Lee in his official capacity as Sheriff of Jefferson Parish; Aswald Falgout, individually, and in his capacity as Jefferson Parish Deputy Sheriff Ryan Singleton, individually, and in his official capacity as a Jefferson Parish Deputy Sheriff; Hospital Service District No. 1, Jefferson Parish d/b/a West Jefferson Medical Center; and Boyd Edwards
    No. 2017-C-0290
    Supreme Court of Louisiana.
    May 12, 2017
   Applying for Reconsideration of this Court’s action dated April 7, 2017; Parish of Jefferson, 24th District Court Div. I, No. 578-049 C/W 578-061; to the Court of Appeal, Fifth Circuit, No. 16-CA-373 C/W 16-CA-374

hNot considered. See La.S.Ct. Rule IX, § 6.


text:
    STATE IN the INTEREST OF C.T.
    NO. 2016-CK-0939
    Supreme Court of Louisiana.
    May 19, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, Juvenile Court—East Baton Rouge, No. JU108365; to the Court of Appeal, First Circuit, No. 2015 KJ 1864;

h Granted.


text:
    John J. JASMIN, Sr. v. HUNTINGTON INGALLS, INC., et al.
    NO. 2017-CC-0715
    Supreme Court of Louisiana.
    May 19, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial District Court Div. D, No. 37877; to the Court of Appeal, Fifth Circuit, No. 17-C-144;

| granted. Pursuant to La. Code Civ. P. art. 1573, the trial court is ordered to schedule the trial at the earliest possible date and in no event later than early 2018.


text:
    STATE of Louisiana v. Brandon D. WINSTEAD
    NO. 2016-OK-1380
    Supreme Court of Louisiana.
    May 19, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, Jefferson Parish First City Court, No. F1946640; to the Court of Appeal, Fifth Circuit, No. 16-KP-217;

| ,Writ not considered. Untimely. See Louisiana Supreme Court Rule X, § 5.


text:
    STATE of Louisiana v. Jason L. THOMAS a/k/a “Jay”
    NO. 2016-KO-1085
    Supreme Court of Louisiana.
    May 19, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 14-269; to the Court of Appeal, Fifth Circuit, No. 15-KA-759;

| iDenied.


text:
    STATE of Louisiana v. Sade HICKMAN
    NO. 2016-K-1136
    Supreme Court of Louisiana.
    May 19, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. H, No. 515-676; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0817

| denied.


text:
    STATE of Louisiana v. Daron LUNDY
    NO. 2016-KO-1198
    Supreme Court of Louisiana.
    May 19, 2017
   Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court, Div. F, No. 520-423; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0776

h Denied.