author: Judge Marion F. Edwards, Pro Tempore

text:
    Pierre A. MCGRAW v. The CITY OF NEW ORLEANS and Hon. Mitchell J. Landrieu, in his capacity as Mayor of New Orleans
    NO. 2016-CA-0446
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 29, 2017
    See also 157 F.Supp.3d 573.

      Franklin H. Jones, III, McALPINE & COZAD, 365 Canal Street, Suite 2730, New Orleans, LA 70130, -AND- Vallerie Oxner, 3500 North Hullen Street, Suite 17-A, Metairie, LA 70002, -AND- James R. Logan, IV, LOGAN LAW OFFICES, LLC, 1010 Common Street, Suite 2910, New Orleans, LA 70112, -AND- John B. Dunlap, III, DUNLAP FIORE, LLC, 301 Main Street, Suite 1100, Baton Rouge, LA 70801, COUNSEL FOR PLAINTIFFS/APPELLANTS—PIERRE A. McGRAW
    Adam J. Swensek, Chief Deputy City Attorney, Cherrell R. Simms, Sr. Chief Deputy City Attorney, Rebecca H. Dietz, City Attorney, City of New Orleans, 1300 Perdido Street, Suite 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE—THE CITY OF NEW ORLEANS AND MAYOR MITCHELL J. LANDRIEU
    (Court composed of Judge Terri F. Love, Judge Sandra Cabrina Jenkins, Judge Marion F. Edwards, Pro Tempore)
   Judge Marion F. Edwards, Pro Tempore

|, On December 18, 2015, the Honorable Mitchell J. Landrieu, the Mayor of New Orleans, signed into law an ordinance enacted by the New Orleans City Council that provided for the removal from publicly owned property of three monuments depicting General P.G.T. Beauregard, Jefferson Davis, and General Robert E. Lee, in their roles as former leaders of the Confederate States of America. The enactment of the ordinance capped a six-month process of intense public debate and contentious governmental hearings concerning the fate of the three monuments. In enacting the monument removal ordinance, the City Council acted in accordance with City Code section 146-611. This ordinance provides that “[m]onuments, statues, plaques, or other structures, erections, or works of art commemorating an event or individual shall be removed from outdoor display on public property” after a finding by the City Council that such an item “constitutes a nuisance” in that:

|a(l) The thing honors, praises, or fosters ideologies which are in conflict with the requirements of equal protection for citizens as provided by the constitution and laws of the United States, the state, or the laws of the city and gives honor or praise to those who participated in the killing of public employees of the city or the state or suggests the supremacy of one ethnic, religious, or racial group over any other, or gives honor or praise to any violent actions taken wrongfully against citizens of the city to promote ethnic, religious, or racial supremacy of any group over another;
(2) Has been or may become the site of violent demonstrations or other activities that may threaten life or property; and
(3) Constitutes an expense for maintenance or the provision of security on a recurring basis that is unjustified when weighed against the historical or architectural significance, if any, of the thing and/or the merits of or reasons for outdoor display of the thing.

Shortly after the removal ordinance’s passage, the Monumental Task Committee, Inc., the Louisiana Landmarks Society, and Beauregard Camp No. 130, Inc., brought suit in federal district court against the City and several federal agencies in an attempt to halt the removal of the statues. In the context of this suit, the federal plaintiffs sought a temporary restraining order and preliminary injunction. Their petition asserted twelve causes of action encompassing claims that the defendants’ actions violated: 1) federal statues enacted for the protection of historic landmarks; 2) 42 U.S.C. § 1983 and the First, Fifth, and Fourteenth Amendments of the United States Constitution; and 3) Article XII, Section 4 of the Louisiana Constitution; and 4) City Code section 146-611. The federal district court judge denied these plaintiffs’ request for injunctive relief on January 26, 2016. See Monumental Task Committee, Inc., et al. v. Foxx, et al., 157 F.Supp.3d 573 (E.D. La. 2016), affirmed sub nom. Monumental Task Committee, Inc., et al. v. Chao, et al., 678 Fed.Appx. 250, 2017 WL 892492 (5th Cir. 2017).

|aOn January 27, 2016, Pierre A. McGraw, who is the founder and president of the Monumental Task Committee, filed the present suit for declaratory and injunc-tive relief in Civil District Court for the Parish of New Orleans against the City and Mayor Landrieu in a further attempt to halt the removal of the statues. Although he argues fewer causes of action than the federal plaintiffs, Mr. McGraw’s bases for injunctive relief largely mirror those claims set out by the Monumental Task Committee in its federal petition. Like the Monumental Task Committee, Mr. McGraw argues that unless the City is enjoined from removing the monuments: 1) his substantive due process rights under both the U.S. and Louisiana constitutions will be violated; 2) his procedural due process rights will be violated because the monument removal ordinance did not comply with City Code section 146-611; and, 3) his rights under Article XII, Section 4 of the Louisiana Constitution will be violated. Unlike the Monumental Task Committee, however, Mr. McGraw argues that injunc-tive relief is also warranted because City Code section 146-611 unreasonably restricts his property rights, thus causing an unreasonable exercise of police power, in violation of Article I, Section 4 of the Louisiana Constitution.

[4The City opposed Mr. McGraw’s request. The district judge denied Mr. McGraw’s request for a temporary restraining order and directed that a hearing be held on his request for a preliminary injunction. At the close of the February 5, 2016 hearing, the district judge denied Mr. McGraw’s request for a preliminary injunction:

The Court having heard argument of counsel, having received evidence and I mean I appreciate the passion and interest on both sides and I do not find that the City breached its responsibility under the Ordinance. .., Again, my personal thoughts aside, the law presented, the evidence presented, the Court would deny the injunction that’s been prayed for finding that there is no violation of the Louisiana Constitution that the City followed the strict mandates of its own Ordinance and that there are no property rights specifically that have been inserted and or due process rights which would necessitate the granting of injunction or the finding that plaintiffs have the ability at some point to win on the merits relative to this case.

The district judge memorialized her oral ruling in a judgment signed on February 5, 2016.

Mr. McGraw then sought a devolutive appeal of the February 5, 2016 denial of his request for injunctive relief. On appeal, Mr. McGraw argues that the district judge erred in denying his request for injunctive relief. He specifically argues that the district judge erred in refusing to conclude that he had acquired vested property rights in the monuments by operation of the civilian doctrine of negotiorum gestio because he has invested his own time and money in their maintenance and upkeep. |sHe, likewise, argues that the monuments are external symbols of his own distinctive culture, and thus protected by Article XII, Section 4, of the Louisiana Constitution. Because he had acquired such property rights, he contends, the district judge thus erred in refusing to find that damage to the monuments occasioned by their removal and transportation would likewise cause irreparable harm to his rights in the monuments in the absence of injunctive relief. Such irreparable harm, he argues, violates his state and federal substantive and procedural due process rights. He also asserts that the City’s actions contravene Article I, Section 4 of the Louisiana Constitution, which guarantees his rights as a property owner to hold this property free of unreasonable statutory restrictions and exercises of police power. And, he argues that the district judge erred in refusing to conclude that the City’s removal of the monuments violates the protections afforded by Article XII, Section 4 of the Louisiana Constitution.

Having reviewed the record and the applicable law, we affirm the February 5, 2016 judgment. Our purpose here is not to sit in judgment upon the propriety, vel non., of the City’s political resolutions. The issue before us is not whether the monuments should be removed or left to stand. Rather, we are called upon to decide whether the district judge erred in denying Mr. McGraw’s request for a preliminary injunction. In this case, Mr. McGraw has failed to establish that he has |fiacquired any type of property rights in the monuments at issue, all of which are public things owned by the City in its public capacity. The district judge, accordingly, did not err in concluding that Mr. McGraw could not establish that he would suffer irreparable harm in the event the monuments are removed by the City. We now explain our rationale in more detail.

I

Before we address Mr. McGraw’s assignments of error, we first discuss the ordinance employed by the City to remove the monuments at issue. We then set out the evidence introduced at the preliminary injunction hearing concerning the monuments. We then examine the various affidavits introduced by the parties in support of, and in opposition to, Mr. McGraw’s request for injunctive relief.

A

In voting to remove the three monuments at issue, the City Council relied upon City Code section 146-611, which is situated within the Article VII of Chapter 146 of the City’s codified ordinances. Article VII governs public monuments, while Chapter 146 sets out the City’s regulations concerning streets, sidewalks, and other public places. The section itself is entitled “Removal from public property,” and provides in general that “[m]onuments, statues, plaques, or other structures, erections, or works of art commemorating an event or individual shall be removed from outdoor display on public property when required by and in accordance with the provisions of this section.” City Code section 146-611(a). Subsection (b) specifically empowers the City Council “[o]n its own motion orjjupon presentation of a request of an elector of the city ... [to] conduct a hearing to determine whether or not any monument, statue, or similar thing honoring or commemorating any person or event that is located on property owned or controlled by the city should be removed from public outdoor display.” City Code section 146—611(b). Subsection (b) further provides that the “council may, by ordinance, cause the removal of the monument, statue, or other thing located outdoors on city property covered by the provisions of this section upon a finding that the thing constitutes a nuisance” in that the monument or statue:

(1) ... honors, praises, or fosters ideologies which are in conflict with the requirements of equal protection for citizens as provided by the constitution and laws of the United States, the state, or the laws of the city and gives honor or praise to those who participated in the killing of public employees of the city or the state or suggests the supremacy of one ethnic, religious, or racial group over any other, or gives honor or praise to any violent actions taken wrongfully against citizens of the city to promote ethnic, religious, or racial supremacy of any group over another;
(2) Has been or may become the site of violent demonstrations or other activities that may threaten life or property; and
(3) Constitutes an expense for maintenance or the provision of security on a recurring basis that is unjustified when weighed against the historical or architectural significance, if any, of the thing and/or the merits of or reasons for outdoor display of the thing.
City Code section 146-611(b).

Subsection (c) directs the City Council, when conducting a hearing in accordance with this section, to “solicit the recommendations of the city planning commission when required by the City Charter and comments and recommendations of the historic district landmarks commission, the Vieux Carré Commission (if applicable), other government or private historical offices or | ^societies, the chief administrative officer, the city attorney, the superintendent of police, and the director of the department of property management.” City Code section 146-611(c). This subsection further indicates that the council “shall also provide for the submission of comments and testimony by the public ... [and] request that public hearings be conducted by and recommendations obtained from the human relations commission or other appropriate agencies.” Id.

In the aftermath of such hearings, “the council may by ordinance declare the monument, statue, or other thing covered by the provisions of this section a nuisance and may provide for the removal of the thing from outdoor public display.” City Code section 146-611(d). Subsection (d), nevertheless provides that the removed monument “may then be displayed indoors at an appropriate facility, such as a museum or stored, donated (if it has no monetary value) or otherwise disposed of in accordance with provisions of law.” Id.

B

We next examine the three monuments at issue.

The Beauregard monument honors Pierre Gustave Toutant Beauregard, a Confederate general who was born in St. Bernard Parish. It depicts him in ^Confederate military uniform sitting astride a horse. The monument is situated on public property at the entrance of City Park within a traffic circle at the intersection of Esplanade Avenue, North Carroll-ton Avenue, and Wisner Boulevard. Although it was paid for by funds raised and donated by a private association, the monument was donated to the City in 1907 and publicly dedicated in 1915. Since its dedication, the monument has been maintained through private and public funds and was placed on the National Register of Historic Places in 1999.

The Jefferson Davis monument memorializes the first, and only, president of the Confederate States of America. The process leading to the construction of this monument began in 1910 when the City enacted Ordinance 6737, N.C.S. This ordinance changed the name of what was then known as Hagan Avenue to Jefferson Davis Parkway, and dedicated a section of the thoroughfare’s neutral ground near its intersection with Canal Street for the erection of a statue in Davis’ honor by the Jefferson Davis Monument Association. The ordinance obligated the Association to care for and maintain the site during the monument’s construction. The Davis Monument was publicly dedicated in 1911.

The Robert E. Lee monument is situated atop a monolith, which in turn is placed in the middle of a circular park that was formerly known as Tivoli Place. The statue depicts Lee in Confederate uniform. The record, in addition to longstanding jurisprudence, establishes that the park is public property owned by the City. See Sarpy v. Municipality No. 2, 9 La.Ann. 597, 600 (La. 1854). The monument was commissioned and constructed by the Robert E. Lee Monumental | ^Association of New Orleans, which was founded in 1870. The monument itself was authorized in 1877 by City Ordinance No. 4602, A.S., which granted the use of Tivoli Circle to the Monumental Association for the purpose of erecting the monument. The Ordinance granted the Monumental Association a five-year right to enclose and restrict access to the site for purposes of the monument’s construction. After completion, the monument was donated to the City by the Monumental Association, and publicly dedicated to the memory of General Lee, in 1884. In 1991, the monument was placed on the National Register of Historic Places. Evidence in the record indicates that at least $200,000 in private and public funds have been spent on repairs and maintenance of the monument.

C

In support of his case, Mr. McGraw introduced three affidavits from: 1) himself; 2) Lawrence J. Robichaux; and, 3) Thomas Bruno.

Mr. McGraw, in his affidavit, avers that he is a resident of New Orleans, Louisiana. In 1989, after learning that the City did not provide funding to the Department of Property Management for the maintenance of its monuments, he began to invest his own time, money, and labor in the upkeep of the City’s monuments. He avers that he has worked hundreds of hours, and spent thousands of his own dollars, in the maintenance and upkeep of the City’s monuments, including the three that are the subject of this matter. His actions were motivated out of sense of civic concern, historic preservation, and filial duty, given that In several of his ancestors served under both Generals Beauregard and Lee. He, also, avers that he has participated in Civil War reenactments, living history projects, and commemorative events which took place at the three monuments at issue. This affidavit, Mr. McGraw thus asserts, establishes that he has acquired rights in the monuments by operation of the doctrine of negotiorum gestio and Article XII, Section 4 of the Louisiana Constitution.

Mr. Robichaux avers that he is an expert in rigging and crane operations. In his opinion, it would be very difficult to remove, transport, and store the monuments at issue. Because the statues are not symmetrical, Mr. Robichaux avers that it will be difficult to determine the midpoint of each monument. He, therefore, concludes that removal and transportation of the monuments will require “a high degree of experience and expertise in both rigging and crane operations.” Mr. Robichaux accordingly concludes that “unless the riggers and crane operators engaged to move and transport these ... monuments are trained and experienced in complex and complicated lifts, there is a significant chance one or more of the monuments will be damaged.”

Mr. Bruno is a sculptor and owner of the Thomas Bruno Gallery and Studio. In his affidavit, Mr. Bruno opines on the potential harm to the Lee and Beauregard monuments in the event the City attempts to move them. He avers that antique bronze statues are not easily moved because they are fragile and difficult to repair. On the other hand, he notes that any efforts to heat or weld the monuments would result in irreparable damage due to the fact that the bronze would become molten |1gand deformed. He asserts, however, that any further attempts to repair the monuments would be complicated by the fact that the bronze plates are most likely attached to an iron infrastructure that has rusted and weakened over the years. Mr. Bruno, therefore, concludes that any damage to the Lee and Beauregard monuments would be irreparable.

The City, in opposition to Mr. McGraw’s request for injunctive relief, introduced various documents and affidavits outlining the legislative history of the removal ordinance as well as various affidavits and memoranda considered by the City Council prior to voting on the removal ordinance in order to show that it acted in accordance with City Code section 146-611 in enacting the removal ordinance at issue. Specifically, the City introduced letters, affidavits and memoranda from: 1) Mayor Landrieu; 2) Eleanor Burke, Deputy Director of the Historic District Landmarks Commission for the City; 3) Larry Bagneris, Chair of the City’s Human Relations Commission; 4) Larry Hesdorffer, Director of the Vieux Carré Commission; 5) George A. Patterson, the City’s Director of Property Management; 6) Michael S. Harrison, the City’s Superintendent of the Department of Police; 7) Rebecca H. Dietz, City Attorney; 8) Andrew D. Kopplin, First Deputy Mayor and Chief Administrative Officer; and, 9) Vincent A. Smith, Director of Capital Projects for the City.

In his letter of June 26, 2015, Mayor Landrieu formally called upon the City Council to initiate legal process under City Code section 146-611. The ordinance, he observed, mandates that the Council hold a hearing and solicit comments and | ^recommendations from the Historic District Landmarks Commission, the Chief Administrative Officer, the City Attorney, the Superintendent of Police, and the Director of Property Management. Mayor Landrieu further noted that prior to the Council’s public hearing, an additional public hearing must be conducted by and recommendations obtained from, the City’s Human Relations Commission.

With her affidavit, Ms. Burke, the Director of the Historic District Landmarks Commission, avers that after a public meeting held on August 13, 2015, the HDLC voted to recommend the removal of the three monuments at issue. In support, Ms. Burke attached her letter to the City Council informing it of the Commission’s decision, as well as the minutes from the August 13, 2015 meeting. The minutes reflect that the Commission found that the monuments reflect the beliefs and attitudes held by many Southerners during the late nineteenth and early twentieth centuries popularly characterized as “the Cult of the Lost Cause.” The commission further found that the monument sites have been the focus of protests against their removal, and that hundreds of thousands of dollars have been spent in public and private funds for their upkeep.

In his affidavit, Mr. Bagneris averred that on August 13, 2015, the Human Relations Committee held a public hearing in response to the Council’s request for comment concerning the removal of the monuments. In an attached letter, he explains that at its August 12, 2015, meeting the Commission considered the Council’s request for removal of the monuments in accordance with City Code section 146-611. He wrote that the Commission unanimously voted to recommend | ^removal of the monuments after concluding that they conflict with the requirements of equal protection for the City’s citizens.

In his affidavit, Mr. Patterson, the City’s Director of Property Management, attached a letter directed to the City Council in which he stated that the City has spent thousands of dollars for the maintenance of the monuments and that their continued upkeep “constitutes an expense that outweighs the historic importance and/or basis for display on public property.” He, thus, recommended the monuments’ removal. With his affidavit Superintendent of Police Harrison attached a letter addressed to the Council in which he stated that the monuments had been the location of protests, some violent, over the years and likewise recommended their removal.

In her affidavit, Ms. Dietz attaches a legal memorandum that she, as City Attorney, authored for the benefit of the City Council in which she explained why the monuments constitute a nuisance under City Code section 146-611. She first concludes, after discussing applicable federal and state equal protection jurisprudence, that “race classifications generally are unacceptable, and any monument fostering ideologies in conflict with the concept of racial equality may constitute a nuisance under Section 146-611.” She then examines each of the monuments at issue. She notes that each monument depicts the subject in the context of their service to the Confederate States of America, an entity she concludes that was dedicated to the promotion “of a system that defied the Constitutional principle of equal protection of the law.” She also observes that | TSeach of the monuments has been the subject of either vandalism, protests, or both, and that public funds have been spent to repair the monuments and provide security when protests have occurred. Ms. Dietz, accordingly, concluded that each of the three monuments constitutes a nuisance in accordance with City Code section 146-611.

With his affidavit, Mr. Kopplin attaches a letter he authored and directed to the City Council in which he concluded that the monuments should be removed in accordance with City Code section 146-611. His letter notes that the cost associated with the monuments’ removal has been estimated at approximately $126,000 by the City’s Capitol Projects Division. Lastly, Mr. Vincent averred in his affidavit that the City, after passage of the removal ordinance, engaged a contractor to provide a proposal for the removal, transportation, and storage of the monuments. He averred, however, that the contractor withdrew from the bid process after its staff, its owner, and the owner’s family had received death threats in connection with the contractor’s involvement with the project.

II

On appeal, Mr. McGraw argues that the February 5, 2016 judgment should be reversed because the district judge erred in failing to: 1) recognize that he has vested property rights in the monuments, acquired by virtue of the civilian doctrine of negotiorum gestio; 2) hold that these rights in the monuments are protected by 11fistate and federal substantive and procedural due process provisions; 3) find that removal of the monuments would damage his right to the preservation, fostering, and promotion of his historical and cultural origins under Louisiana Constitution Article XII, Section 4; 4) conclude that City Code section 146-611 violates Article I, Section 4, of the Louisiana Constitution, which protects private property rights from unreasonable restrictions and exercises of police power; and, 4) rule that irreparable harm would result from the City’s violations of his rights in the monuments should the monuments be removed.

Having reviewed the record and the applicable law in light of Mr. McGraw’s arguments we find that the district judge did not err when she denied his request for a preliminary injunction. Mr. McGraw did not acquire any type of vested property rights in the monuments by operation of either the civilian doctrine of negotiorum gestio, or Article XII, Section 4, of the Louisiana Constitution. Simply put, neither the doctrine of negotiorum gestio, nor the provisions of Article XII, Section 4, operate to vest persons with ownership rights in things. Moreover, even if rights in things could be acquired by operation of negotiorum gestio and Louisiana Constitution Article XII, Section 4, the monuments at issue are public things held by the City in its public capacity. Therefore, Mr. McGraw cannot acquire rights in the monuments. Mr. McGraw, accordingly, has failed to establish that he has acquired vested property rights in the monuments such that their removal would trigger any type of due process analysis, or violate the protections 117afforded by Section 4, Article I, and Section 4, Article III of the Louisiana Constitution. Absent such a vested property right, therefore, Mr. McGraw cannot establish that the monuments’ removal would cause irreparable harm to him. Although Mr. McGraw offered some evidence that the monuments might be damaged as a result of their removal, transportation, and storage, he has failed to establish that he would suffer irreparable harm in the event such injuries were to befall the monuments.

A

“A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties, pending trial on the merits.” Smith v. Brumfield, 13-1171, p. 5 (La.App. 4 Cir. 1/15/14), 133 So.3d 70, 74. Injunctive relief is an equitable remedy, which is ordinarily only available when a party has no adequate legal remedy. Cf. West v. Town of Winnsboro, 252 La. 605, 211 So.2d 665, 670 (La. 1967) (on rehearing) (“By adequate remedy at law is meant one which is as speedy, efficient, and complete as the remedy in equity.”). See also C. Napco, Inc. v. City of New Orleans, 06-0603, p. 6 (La.App. 4 Cir. 3/7/07), 955 So.2d 155, 160 (“An injunction is a harsh, drastic remedy that should only issue where the petitioner is threatened with irreparable harm and has no adequate remedy at law.”).

A “court may hear an application for a preliminary injunction ... upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases.” La. C.C.P. art. 3609. “A preliminary injunction shall not issue unless notice is 11 ¡¡given to the adverse party and an opportunity had for a hearing.” La. C.C.P. art. 3602. Ordinarily, to prevail in the district court on a petition for preliminary injunction, the petitioner is required to establish by p?ima facie evidence that: 1) he will suffer irreparable injury, loss, or damage if the motion for preliminary injunction is not granted; and 2) he is entitled to a preliminary injunction through at least a showing that he will likely prevail on the merits of the case. See Historic Restoration, Inc. v. RSUI Indem. Co., 06-1178, p. 11 (La.App. 4 Cir. 3/21/07), 955 So.2d 200, 208; La. C.C.P. art. 3601. The prima facie standard of proof to obtain a preliminary injunction is less than that required for a permanent injunction. See Smith, 13-1171 at p. 6, 133 So.3d at 74.

“A trial court has broad discretion in the granting or denial of a preliminary injunction, and will not be disturbed on review absent a clear abuse of that discretion.” Yokum v. Pat O’Briens Bar, Inc., 12-217 p. 6 (La.App. 4 Cir. 8/15/12), 99 So.3d 74, 80 (citing Smith v. West Virginia Oil & Gas Co., 373 So.2d 488, 493 (La. 1979)) (internal quotations omitted). This “broad standard is, of course, based upon a conclusion that the trial court committed no error of law and was not manifestly erroneous or clearly wrong in making a factual finding that was necessary to the proper exercise of its discretion.” Yokum, 12-0217 at p. 7, 99 So.3d at 80 (citing South East Auto Dealers Rental Ass’n, Inc. v. EZ Rent to Own, Inc., 07-0599, pp. 4-5 (La.App. 4 Cir. 2/27/08), 980 So.2d 89, 93). Absent a clear abuse of discretion, the denial of a preliminary injunction will not be overturned on | ^appeal. See Oestreicher v. Hackett, 94-2573, p. 3 (La.App. 4 Cir. 5/16/95), 660 So.2d 29, 31.

B

We now explain why Mr. McGraw has failed to establish that he will suffer irreparable harm. In order to prove that irreparable harm will befall a party from the non-issuance of a preliminary injunction, the petitioning party must show that “money damages cannot adequately compensate for the injuries suffered and that the injuries ‘cannot be measured by pecuniary standards.’ ” Historic Restoration, 06-1178 at p. 11, 955 So.2d at 208 (quoting Saunders v. Stafford, 05-0205, p. 6 (La.App. 4 Cir. 1/11/06), 923 So.2d 751, 754). “[M]ere inconvenience is not enough to show irreparable injury needed for the issuance of a preliminary injunction.” Hobbs v. Gorman, 595 So.2d 1264, 1266 (La. App. 4th Cir. 1992).

Here Mr. McGraw’s arguments are premised upon the assertion that he has acquired vested property rights in the monuments in question and that any damage occasioned by their removal, transportation, and storage will cause irreparable harm to these rights. In so doing, he relies upon the civilian doctrine of negotiomm gestio, and Article XII, Section 4 of the Louisiana Constitution. Mr. McGraw, however, can rely on neither civilian doctrine nor constitutional provision to support his claims. The monuments in question, moreover, are public things held by the City in its public capacity. They are, therefore, insusceptible to ownership by natural or juridical persons. And while Mr. McGraw has offered some evidence that the monuments might possibly be damaged as a result of their 1 ^removal or transportation, he has not shown that such damage would harm him irreparably.

1

The rules governing the doctrine of negotiomm gestio are located in Title V of Book III of the Civil Code, which governs obligations without agreement, or quasi-contracts. Article 2292 defines negotiomm gestio accordingly: “There is a management of affairs when a person, the manager, acts without authority to protect the interests of another, the owner, in the reasonable belief that the owner would approve of the action if made aware of the circumstances.” Thus, the doctrine applies when the manager acts for the benefit of the owner, instead of in furtherance of his own interests. See La. C.C. art. 2292, cmt. (d), Kirkpatrick v. Young, 456 So.2d 622, 624-625 (La. 1984). Article 2294 sets out the duties of the manager, who “is bound, when the circumstances so warrant, to give notice to the owner that he has undertaken the management and to wait for the directions of the owner, unless there is immediate danger.” Similarly, Article 2295 provides that the “manager must exercise the care of a prudent administrator and is answerable for any loss that results from his failure to do so.” As for the owner whose affairs have been managed, Article 2297 indicates that he “is bound to fulfill the obligations that the manager has undertaken as a prudent administrator and to reimburse the manager for all necessary and useful expenses.” Such reimbursements, however, may be reduced in the event it is established that the manager failed to act as a prudent administrator. See La. C.C. art. 2295.

[2) Article 477 of the Louisiana Civil Code defines ownership as “the right that confers on a person direct, immediate, exclusive authority over a thing.” La.C.C. art. 477. Thus, the “owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.” Id. The provisions of the Civil Code indicate clearly that the doctrine of negoti-omm gestio confers no ownership rights upon the manager who undertakes without authority the administration of another’s affairs. At most, the manager who acts as a prudent administrator acquires a right of reimbursement against the owner. See La. C.C. art. 2297. Indeed, our research into the matter has revealed nothing which even suggests that such a right of reimbursement gives the manager an ownership interest in the thing managed. Mr. McGraw, therefore, cannot rely upon the principle of negotiomm gestio to establish vested rights in the monuments.

2

Mr. McGraw, likewise, cannot rely upon Section 4, of Article XII, of the Louisiana Constitution, to establish a vested property right in the monuments. This provision recognizes “the right of the people to preserve, foster, and promote their historic linguistic and cultural origins.” Significantly, the only reported decision interpreting this provision arises out of the Monumental Task Committee’s attempt to secure injunctive relief in federal court. In rejecting this claim, Judge Barbier observed:

The driving force behind the provision was preservation of the French language and culture. Lee Hargrave, “Statutory” and Hortatory” Provisions of the Louisiana Constitution of 1974, 43 La. L. Rev. 647, 682 (1983). The law was supported primarily by French-speaking |22delegates who were concerned with the protection of the Acadian French culture. Id. No court has ever invalidated a law using this provision.
Professor Lee Hargrave suggested that the development and intent of article XII, section 4 support a narrow construction of the law. For example, the principal drafter’s stated intent was “to encourage bilingualism rather than make a drastic innovation.” Id. at 684.
Considering the legislative history, Har-grave argued that “[a]t best, this provision might be seen as a particularization of those principles protecting the rights of association that have been grafted onto the first amendment, encompassing a right to unite and associate for promotion of certain values and causes.” Id. However, “as with its first amendment cousin, it is unlikely that the section would be invoked to protect all cultural origins.” Id. For example, it would not permit a citizen who immigrated to Louisiana “to foster his origins by committing ritualistic robbery and murder.” Id. Thus, the rights covered by article XII, section 4 are “vague ones that can be balanced against other interests.” Id.
Monumental Task ' Comm., 157 F.Supp.3d at 600.

Judge Barbier rejected the federal plaintiffs’ contention that removal of the monuments will infringe upon their right to preserve, foster, and promote their historic, linguistic, and cultural origins, after concluding that the plaintiffs had no right to “compel the City to promote their culture.” Monumental Task Comm., 157 F.Supp.3d at 600, citing Hargrave, supra, at 684 (wherein he explains that Article XII, Section 4 does not establish a right to have public schools teach particular historic, linguistic, and cultural origins). Having reviewed Judge Barbier’s analysis of Article XII, Section 4, and Mr. McGraw’s arguments in the present proceeding, we see no reason to depart from the learned judge’s conclusion. Mr. McGraw, therefore, has failed to establish that he has acquired vested property | ^rights in the monuments at issue by operation of Article XII,' Section 4 of the Louisiana Constitution.

3

Mr. McGraw’s arguments also ignore the fact that the evidence in the record establishes that each of these three monuments are public things that have been dedicated to public use. Article 448 of the Louisiana Civil Code provides that things are divided into common, public, and private things. Article 450 specifically states that, “Public things are owned by the state or its political subdivisions in their capacity as public persons.” “The very definition of a '‘public thing’ prohibits a private person from owning a public thing.” Band v. Audubon Park Comm’n, 05-0937, p. 5 (La.App. 4 Cir. 7/12/06), 936 So.2d 841, 845. The Jurisprudence has interpreted Article 450,., which specifically provides examples of public things which may be owned by a political subdivision “[s]uch as streets and public squares,” to also include public parks owned by a political subdivision in its public capacity. See Id. We do not hesitate to conclude that the monuments at issue are public things given that the undisputed evidence establishes clearly that they were erected on public property, owned by the City in its public capacity, and subsequently dedicated to the public use.

Equally clear is the fact that the City is a “political subdivision” of the State. As such the City may own streets, public squares, and public parks in its public capacity. See Band, 05-0937, p. 6, 986 So.2d at 845. Public things, being | ^insusceptible of private ownership, are inalienable, imprescriptible and exempt from seizure. See 2 La. Civ. L. Treatise, Property, sections 3:5, 3:8-3:11 (5th ed.). As the Supreme Court observed in City of New Orleans v. Carrollton Land Co., 131 La. 1092, 1094-1095, 60 So. 695, 696 (1913): “Such property is out of commerce. It is dedicated to public use, and held as a public trust, for public uses. It is inalienable by [municipal] corporations. If the position of the city in this suit be sustained, to the effect that the property in question is a public square, defendant cannot have acquired title thereto by prescription or otherwise.” The inalienability of all public things, whether belonging to the State or its political subdivisions, is guaranteed by the Civil Code. See La. C.C. art. 450; Band, 05-0937, p. 6, 936 So.2d at 845. While it is possible to acquire things which are owned by a political subdivision in its private capacity, it is not possible for persons to acquire those things which are owned by a political subdivision in its public capacity. See Band, 05-0937, pp. 6-7, 936 So.2d at 845. The monuments at suit, therefore, are public things owned by the City in its capacity as a public person. See La. C.C. art. 450. And, as we have previously concluded, “the location, the manner and design” of the City’s monuments are “within the sound discretion of the governing ^authorities.” State ex rel. Singelmann v. Morrison, 57 So.2d 238, 244 (La.App. Orl. Cir. 1952) (holding that the City of New Orleans had the right to permit erection on public property of a privately-funded memorial to the memory of Mother Cabrini).

CONCLUSION

Therefore, regardless of the theory advanced by Mr. McGraw, he has failed to establish that he acquired any type of vested property right in the monuments at suit. This being the case, he cannot establish that he would incur any irreparable harm in violation of federal and state constitutional provisions should the monuments be damaged by their removal, transportation, or storage. And we observe that although he introduced some evidence which shows that the monuments might suffer damage upon their removal, transportation, or storage, he has failed to establish that such damage to the monuments will result in damage to him. We necessarily conclude, then, that Mr. McGraw is not entitled to the issuance of a preliminary injunction because he has failed to show that he will suffer irreparable harm as a result of the City’s past or present actions.

DECREE

We affirm the district court’s judgment of February 5, 2016, which denied Pierre A. McGraw’s request for a preliminary injunction against the City of New 1 ar,Orleans, and the Honorable Mitchell J. Landrieu in his capacity as Mayor of New Orleans.

AFFIRMED

      . See City Ordinance 026750 Mayor Council Series. The ordinance also authorized the removal of the Liberty Place Monument, which commemorates an 1874 battle between the White League and the City’s first integrated police force. Mr. McGraw’s petition, however, does not seek to enjoin the removal of this monument,

      . For purposes of brevity, we hereafter refer to the City and Mayor Landrieu collectively as "the City.”

      .On February 14, 2016, Mr. McGraw amended his suit to add as party-plaintiff, the Lafayette Square Association, a Louisiana nonprofit corporation concerned with historic preservation respecting the Lafayette Square neighborhood and the Lafayette Square Historic District. The amending petition was filed after service of the original petition on the defendants. See La. C.C.P. art. 1151. However, it does not appear from the record that either Mr. McGraw or the Association obtained leave of court to either amend the petition or intervene in the case. In any event, the Association did not file a motion for appeal or seek supervisory review of the subsequent denial of injunctive relief.

      . Mr, McGraw subsequently filed an application for supervisory writs concerning the district judge’s denial of his request for a temporary restraining order. We denied the writ application on January 28, 2016. See McGraw v. City of New Orleans, et al., unpub., 16-0098 (La. App. 4 Cir. 1/28/16), writ denied, 16-0208 (La. 2/3/16), 186 So.3d 1155.

      . See La. C.C. art. 2292, et seq. Article 2292 provides: "There is a management of affairs when a person, the manager, acts without authority to protect the interests of another, the owner, in the reasonable belief that the owner would approve of the action if made aware of the circumstances.”

      .Article XII, Section 4 provides: “The right of the people to preserve, foster, and promote their respective historic linguistic and cultural origins is recognized.”

      . See U.S. Const. Amend. XIV, Section I; La. Const. Art. I, Section 2,

      . See La. Const. Art. I, Section 4 (A), which provides: “Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.”

      . City Code section 146-611(e) further provides:
      Whenever in the opinion of the city attorney removal of a thing is required by an ordinance of the council but such removal would apparently violate or conflict with the provisions of applicable federal or state law or a judgment or order entered by a federal or state court, the city attorney shall notify the city council and file an appropriate action or proceeding in an agency or court of competent jurisdiction seeking a decision, declaration or order compelling or permitting such removal. The obligation of removal imposed by the ordinance shall be suspended until a favorable definitive judgment is obtained.
      The present matter, however, does not implicate this subsection.

      . The affidavits from Messrs. Bruno and Ro-bichaux were also introduced by the Monumental Task Committee in support of its federal district court action.

      . Mr. Hesdorffer’s affidavit and attachments were directed solely to the removal of the Liberty Place Monument, and thus, are not relevant to the present discussion. We note, nevertheless, that the Vieux Carré Commission held a public hearing, considered the Council’s request for input, and voted to recommend removal or relocation of the Liberty Place Monument.

      . See U.S. Const. Amend. XIV, Section 1; La. Const. Art. I, Section 2.

      . Article 450's enumerations are illustrative rather than exclusive. See Comment (d) to La. C.C. art. 450.

      . Given the thoroughly public nature of the monuments in question, it is clear that the removal ordinance does not run afoul of Article I, Section 4, of the Louisiana Constitution. This provision ensures that just compensation be paid to those whose private property has been taken or infringed upon by unreasonable statutory restrictions or exercises of police power. See State Through Dep't of Transp. & Dev. v. Chambers Inv. Co., Inc., 595 So.2d 598, 602 (La. 1992). It, accordingly, has no application to public things held by the City in its public capacity. Even if this provision were applicable, its guaranty of just compensation to an injured property owner would serve to defeat injunctive relief, which is applicable only when an applicant “cannot be adequately compensated in money damages for his injury or suffers injuries, which cannot be measured by pecuniary standards.” See Harvey v. State, 14-0156, p. 27 (La.App. 4 Cir. 12/16/15), 183 So.3d 684, 703.

      . Given the fact that he has failed to establish any type of vested property right in the monuments at issue, we need not' address Mr. McGraw’s arguments that City Code section 146-611 is impermissibly vague or that the City Council failed to follow its dictates when passing the monument removal ordinance at issue.


source: Caselaw Access Project

author: Judge Joy Cossich Lobrano

license: Public Domain

text:
    STATE of Louisiana v. Devin GARRISON State of Louisiana v. Devin Garrison
    NO. 2016-KA-0257, NO. 2016-K-0362
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 29, 2017

      Leon A, Cannizzaro, Jr., DISTRICT ATTORNEY, ORLEANS PARISH, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY, ORLEANS PARISH, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/APPELLEE
    Sherry Watters, Louisiana Appellate Project, P.O. Box 58769, New Orleans, LA 70158—8769, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Marion F. Edwards, Pro Tempore)
   Judge Joy Cossich Lobrano

|! Devin Garrison (“Defendant”) appeals his August 26, 2015 convictions for distribution of marijuana and possession of a legend drug. Further, Defendant appeals his sentence of twenty years at hard labor as a second-felony offender under the Louisiana Habitual Offender Law for distribution of marijuana. Consolidated with Defendant’s appeal is the State of Louisiana’s (the “State”) application for supervisory writs requesting review of the district court’s January 15, 2016, ruling adjudicating Defendant to be a second-felony offender rather than a third-felony offender. Finding that this Court should not reconsider its prior reversal of the district court’s grant of Defendant’s motion to suppress, we affirm Defendant’s convictions. Further, finding that the district court erred in ^adjudicating Defendant a second-felony offender instead of a third-felony offender, we grant the State’s writ application, reverse the district court’s finding that Defendant is a second-felony offender rather than a third-felony offender, vacate Defendant’s sentence of twenty years as a second-felony offender, and remand this case for Defendant to be resen-tenced as a third-felony offender.

Factual Background

On June 10, 2014, Detective Dave Biondillio (“Det. Biondillio”) observed Susan Mizell (“Mizell”) at Brothers Gas Station (“Brothers”). On that day, Det. Biondillio, who was working with a DEA task force, was conducting surveillance in the area of Brothers at Bullard Road and the North I—10 Service Road, which he described as an area of New Orleans East known for “a lot of narcotics trafficking.” Det. Biondillio observed Mizell parked in a red PT cruiser. During the approximately ten minutes that passed while Det. Biondillio observed her, Mizell did not exit her car or purchase gas. Instead, Det. Biondillio observed Mi-zell have a conversation on a cell phone, after which a blue BMW driven by Defendant drove up to Brothers. Mizell began to follow Defendant.

Det. Biondillio then radioed another officer with the task force, Sergeant Dennis Bush (“Sgt. Bush”), to inform him of Mizell’s conduct. Sgt. Bush Rsurveilled Defendant and Mizell to a nearby apartment complex. Defendant and Mizell entered an apartment with a key. The two were inside for five to ten minutes before Mizell returned to the PT cruiser. Mizell then drove away. Sgt. Bush radioed Det. Biondillio as Mizell drove away, but stayed in his surveillance position and continued to observe the apartment. About ten minutes after Mizell left, Sgt. Bush observed Defendant leave the apartment.

Det. Biondillio stopped Mizell after she left Defendant’s apartment, advised her of her rights, and informed her of the ongoing investigation. Det. Biondillio obtained a picture of Defendant based on the license plate number of the blue BMW and showed it to Mizell. She verified that she had purchased marijuana from Defendant, who she knew as “Magnolia.” She surrendered a bag of green vegetable matter, which she indicated was located in her bra, and was arrested via summons for simple possession of marijuana. Det. Biondillio then returned to the apartment and maintained surveillance while typing a search warrant.

Defendant left the apartment before the search warrant was completed. Upon leaving, Defendant was arrested for distribution of marijuana by Sergeant Scott Zemlick (“Sgt. Zemlick”), who was supervising Det. Biondillio and Sgt. Bush during their work with the DEA task force. One bag of green vegetable matter was seized from Defendant’s person. Sgt. Zemlik then obtained the key to Defendant’s apartment, entered the premises with other officers and secured the area. Officers waited at the apartment while Det. Biondillio conferred with the magistrate and obtained a signature on the search warrant. After the warrant was signed, officers searched Defendant’s apartment and seized one clear bag containing 27.5 pills scored with the Mercedes-Benz emblem, one clear bag containing nine pills scored 1 ¿with the number “627,” one digital scale, and a razor blade from a jewelry box in the master bedroom.

Brian Schulz (“Schulz”), a forensic drug analyst, testified that his job requires him to examine evidence collected from a crime scene and to determine whether controlled dangerous substances are present. At trial, Schulz identified State’s Exhibit 1 as the August 15, 2014, report he authored documenting his test results on the evidence recovered in this case. He tested vegetative matter, one pressed red tablet, six green pressed tablets marked with a Mercedes Benz symbol, twenty-one blue pressed tablets also bearing Mercedes-Benz symbols, and nine white round tablets marked AN627. The specimens proved to be marijuana, methamphetamine, and Tramadol.

Following the jury trial on August 26, 2015, Defendant was convicted of distribution of marijuana and possession of a legend drug. On September 15, 2015, the district court denied Defendant’s motions for new trial and for post-verdict judgment of acquittal. On that same date, Defendant waived all delays and the district court sentenced Defendant to concurrent sentences of fifteen years for distribution of marijuana and three years for possession of a legend drug.

The State then filed a multiple offender bill charging Defendant as a third-felony offender based on a prior conviction for attempted armed robbery and a 1 ¿prior conviction for unauthorized use of a vehicle. Following a multiple bill hearing on January 15, 2016, the district court adjudicated Defendant a second-felony offender, vacated his original fifteen year sentence, and resentenced him to twenty years at hard labor. The State timely filed notice of intent to seek supervisory review of the district court’s ruling adjudicating Defendant a second, but not a third, felony offender.

On April 11, 2016, this Court issued an order consolidating the State’s supervisory writ application with Defendant’s appeal. We now address both Defendant’s appeal and the State’s application for supervisory writs.

Pro Se Assignments of Error

Defendant assigns two errors in his pro se brief. First, he asserts that the statements, identification, and evidence were obtained as a result of an illegal stop of Mizell and, consequently, should have been excluded as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). This issue previously came before this Court in an application for supervisory writs. See State v. Garrison, unpub., 2015-0425 (La.App. 4 Cir. 7/13/15). The State successfully obtained review of that ruling, and this Court found that the district court abused its discretion in granting Defendant’s motion to suppress. A review of that writ application reflects that the State provided this Court with a copy of the motion hearing transcript, including the district court’s ruling, and a copy of Defendant’s memorandum in support of his motion to suppress, thus supplying this Court with Defendant’s position on the motion.

| /‘The ‘law of the case’ doctrine applies to all prior rulings or decisions of an appellate court or the Supreme Court in the same case, not merely those arising from the full appeal process. This policy applies to parties who were parties to the case when the former decision was rendered and who thus had their day in court.” State v. McElveen, 2010-0172, p. 13, fn. 8 (La.App. 4 Cir. 9/28/11), 73 So.3d 1033, 1054 (citations omitted). The law of the case doctrine requires that, as a general rule, appellate courts refuse to reconsider their own rulings on a subsequent appeal of the same case. State v. Robertson, 2013-1403, p. 4 (La.App. 4 Cir. 4/9/14), 136 So.3d 1010, 1012 (citations omitted). “Under the law-of-the-case doctrine, an appellate court will not reverse its pretrial determinations unless the defendant presents new evidence tending to show that the decision was patently erroneous and produced an unjust result.” Id. (quoting State v. Golden, 2011-0735, p. 13 (La.App. 4 Cir. 5/23/12), 95 So.3d 522, 531). This exception to the general rule of law of the case is construed narrowly, and all three parts of this burden must be met in order to garner reconsideration. See, e.g. State v. Cox, 2011-0670 (La.App. 4 Cir. 2/22/12), 85 So.3d 252, 256 (stating that this Court was “barred” from reconsidering a ruling on a supervisory writ which reversed a grant of a motion to suppress where the defendant presented no new evidence). In the case sub judice, because Defendant has adduced no new evidence tending to show that the prior [ 7ruling was patently erroneous and produced an unjust result, this Court is barred from reconsidering its pri- or decision. This assignment of error lacks merit.

In his second pro se assignment of error, Defendant asserts that he “believes that the jury came back with a verdict of possession of marijuana” instead of distribution of marijuana and that the district court “upgraded” the charge to distribution. In response to these serious allegations, this Court ordered that the verdict forms be filed by the district court as an exhibit to this appeal. A review of the verdict forms indicates, notwithstanding Defendant’s accusations, that this assignment of error lacks merit. Defendant was properly convicted of distribution of marijuana and the record contains no evidence that the district court tampered with the jury’s verdict.

Application for Supervisory Writs No. 2016-K-362

In this consolidated application for supervisory writs, the State seeks review of the district court’s adjudication of Defendant as a second-felony offender rather than a third-felony offender. The State argues that the district court abused its discretion by finding the State had not proven beyond a reasonable doubt that Defendant was convicted on May 15, 2008, of unauthorized use of a vehicle in Texas. Finding that the district court did abuse its discretion, we grant the writ, vacate Defendant’s sentence, and remand for Defendant to be sentenced as a third-felony offender.

At the multiple bill hearing on January 15, 2016, Officer George Jackson (“Officer Jackson”) was qualified by stipulation as an expert in latent fingerprint | ^analysis. He testified he took Defendant’s fingerprints on the morning of the hearing, and he identified State’s Exhibit 1 as the card bearing those fingerprints. Officer Jackson then identified State’s Exhibit 2 as a bill of information containing a plea of guilty form, docket master, minute entry and arrest register from a Louisiana conviction for attempted armed robbery bearing Case No. 481-258. State’s Exhibit 2 contained fingerprint impressions but they were too dark, and thus not suitable for comparison purposes. However, Officer Jackson said he was successful in obtaining a fingerprint card associated with the arrest register contained in State’s Exhibit 2, which he identified as State’s Exhibit 3, Officer Jackson testified the arrest register in State’s Exhibit 2 bore the same folder number (2142045) as the folder number listed on State’s Exhibit 3, as well as the identical name, date of birth, address, charge, and FBI number. Officer Jackson compared the right thumbprint from State’s Exhibit 3 to the right thumbprint contained on State’s Exhibit 1 and concluded the right thumbprints on State’s Exhibits 1 and 3 were identical and belonged to Defendant.

Continuing, Officer Jackson said he reviewed State’s Exhibit 4, which was a certified conviction packet from the State of Texas, containing two bills of information detailing separate charges against Defendant—one for unauthorized use of a vehicle (Case No. 1111206), and another for evading arrest or detention using a vehicle (Case No. 1111279). The Texas certified conviction packet contained a guilty plea as to each charge, two Waivers of Jury Trial forms and judgments of conviction as to the Texas charges. The waivers and judgments Iscontained fingerprints. Officer Jackson was able to compare the thumbprint from the conviction for evading arrest or detention using a vehicle (Case No. 1111279), to the fingerprints on State’s Exhibit 1. That thumbprint matched the thumbprint contained on State’s Exhibit 1. Officer Jackson indicated the thumbprint from the unauthorized use of a vehicle (Case No. 1111206) was not suitable for comparison, but both of the judgments of conviction bore identical information as to Defendant’s name, date of birth, race, sex and CID number. Concluding, Officer Jackson testified comparison of the thumbprint in State’s Exhibits 3 and 4 with the corresponding digit on State’s Exhibit 1 produced a conclusive match to Defendant.

At the multiple bill hearing, the State indicated it was not using the Texas conviction for evading arrest or detention using a vehicle to enhance Defendant’s sentence because that offense was only a misdemeanor. Instead, the State elected to use the Louisiana conviction for attempted armed robbery and the Texas conviction for unauthorized use of a vehicle to enhance Defendant’s conviction. Defendant argued that the bill of information for the Texas conviction is defective for purposes of the multiple bill because it listed a vehicle value range “[of] $1,500.00 or more but less than $20,000.00,” as to the offense of unauthorized use of a vehicle, while the Texas statutory definition of that offense, Section 31.07 of the Texas Penal Code, does not specify a value amount. In support of this argument, Defendant cited State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, for the proposition that both the Texas and the Louisiana “statutes |1(lmust translate properly.” Additionally, the defense claimed an absence of proof that Defendant was properly Boykinized at the time he entered his guilty plea in Texas renders that conviction insufficient for purposes of the multiple bill. The district court reasoned:

The court is concerned about the Texas conviction. The Court has multiple concerns. There is no transcript. There is no actual Boykin as we are familiar with it. There is something where the clerk has checked off some boxes. I have nothing to convince me other than a box being checked off that counsel was actually sitting there with the defendant going through Boykinization.
Further, the Court is somewhat troubled by the fact that the statutory scheme in Texas itself does not have an amount albeit that the Bill of Information included an amount that would comport or might logically comport with Louisiana Revised Statute 14:68.
The Court is also concerned about the fingerprint as to that specific count being not readable. When the Court considers all of those things together with the case cited by defense, State v. Ken-nerson, 695 So.2d 1367, albeit that that is a Third Circuit case in Louisiana.
The Court is going to because of the comments just made ... adjudicate the defendant a double offender.

In State v. Stanfield, 2013-1193 (La.App. 4 Cir. 3/26/14), 137 So.3d 788, 794, this Court noted:

To obtain a habitual offender conviction, the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. State v. Payton, 2000-2899, p. 6 (La. 3/15/02), 810 So.2d 1127, 1130, citing State v. Neville, 96-0137 (La. App. 4 Cir. 5/21/97), 695 So.2d 534, 538-39. The court in Payton explained that in attempting to establish identity, the State may present: (1) testimony from witnesses; (2) expert opinion regarding the fingerprints of the defendant when compared with those in the prior record; (3) photographs in the duly authenticated record; or (4) evidence of identical driver’s license number, sex, race and date of birth.

Id. at p. 6, 810 So.2d at 1130-31. In the case at bar, the Texas certified pack of court documents from case number 1111206 included a document entitled “Judgment Certificate of Thumbprint.” This document contained what was labeled as an inked right thumb. Officer Jackson testified at the habitual offender hearing |nthat he took a set of Defendant’s prints that day in court and said he was unable to compare the right thumbprint he took in court to the right thumbprint contained on the “Judgment Certificate of Thumbprint” because the latter print was not suitable for comparison. However, he said both Texas judgments of conviction (unauthorized use of a vehicle and evading arrest or detention using a vehicle) bore identical information as to Defendant’s name, date of birth, race, sex and CID number. Moreover, Officer Jackson testified that the right thumbprint for Defendant’s conviction for evading arrest or detention using a vehicle was a match to the right thumbprint he took in court prior to the start of the habitual offender hearing.

The Texas certified conviction packet pertaining to Defendant’s conviction for unauthorized use of a vehicle also contains a document entitled “Judgment of Conviction by Court—Waiver of Jury Trial.” The judgment of convietion/waiver of jury trial form reflects that a judgment of conviction by plea of guilty was rendered on May 15, 2008. It lists the names of the presiding judge, the attorney for the state, the attorney for Defendant, and the criminal charge (unauthorized use of a vehicle, a violation of Texas Penal Code § 31.07). At the bottom of the judgment of conviction/waiver of jury trial form are two check-off boxes, the first signifying that Defendant appeared in person with his counsel, the second indicating that Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court and pled guilty. The first box is checked off in Defendant’s case, evidencing that he appeared with counsel to plead guilty. The second box is not checked. In addition, the judgment of conviction/waiver of jury trial form contains a paragraph printed underneath the two check-off boxes. That portion of the form reads:

ha Counsel/Waiver of Counsel (select one)
[x] Defendant appeared in person with Counsel.
□ Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court.
Both parties announced ready for trial. Defendant waived the right of trial by jury and entered the plea indicated above. The Court then admonished Defendant as required by law. It appeared to the Court that Defendant was mentally competent to stand trial, made the plea freely and voluntarily, and was aware of the consequences of this plea. The Court received the plea and entered it of record. Having heard the evidence submitted, the Court found Defendant guilty of the offense indicated above. In the presence of Defendant, the Court pronounced sentence against Defendant.

According to State v. Shelton, 621 So.2d 769, 779-780 (La.1993):

If the defendant denies the allegations of the [habitual offender] bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than the “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that the defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. [Footnotes omitted.]

In State v. Watkins, 2013-1248 (La.App. 4 Cir. 8/6/14), 146 So.3d 294, 309, this Court considered the same claim made by Defendant in this case, that the State failed to prove he made a knowing and intelligent waiver of his rights prior to entering a plea of guilty to the Texas conviction for unauthorized use of a vehicle, __[iSrelying on identical Texas state court/conviction documents quoted herein. This Court concluded that the State had presented requisite proof, stating:

... the paragraph underneath the two check-off boxes is a new paragraph. It is not a continuation of the one full sentence next to the waiver-of-counsel check-off box. The paragraph reciting that the defendant waived the right of trial by jury and entered the plea indicated above freely and voluntarily logically applies to the plea taken, regardless whether or not he was represented by counsel at the taking of the plea. All the first check-off box states is: “Defendant appeared in person with Counsel.” The only language in the judgment of conviction/waiver of jury trial form that recites that the defendant actually waived his right to a jmy trial and that the court accepted the plea of guilty and entered it of record is the language contained in the one full paragraph. Even though defendant in the instant case was represented by counsel at that Texas proceeding, he still had to waive his right to trial by jury, and the trial court still had to accept the plea.
It is obvious from the face of the Texas judgment of conviction/waiver of jury trial form that the sole purpose of the two one sentence check-off boxes at the bottom of the form is to evidence that the defendant either was represented by counsel at the taking of the plea, or that he knowing, intelligently, and voluntarily waived the right to representation by counsel at the taking of the plea. The separate, full paragraph obviously is intended to reflect what is supposed to occur in the actual taking of the plea, to-wit, whether the defendant is represented by counsel or whether he has knowingly, intelligently, and voluntarily waived his right to counsel.
More importantly, the full paragraph in the counsel/waiver of counsel part of the form below the counsel/waiver of counsel checkoff boxes recites, in part: “The Court then admonished Defendant as required by law.” This is a reference to Texas Code of Criminal Procedure art. 26.13, which expressly requires that prior to accepting a plea of guilty the trial court “shall admonish the defendant of.... ”1 uBoth the defendant and the state equate the admonishment referenced in the judgment of conviction/waiver of jury trial form in the instant case to the trial court advising defendant of his three Boykin rights. However, that is not necessarily the case, as “whether a trial court has complied with Article 26.13 and whether it has complied with Boykin are two separate issues.” Gardner v. State, 164 S.W.3d 393, 398 (Tex.Crim.App.2005).
Tex.C.Cr.P. Art. 26.13 mandates such admonishment by the trial court before it accepts a guilty plea evidences that the paragraph on the judgment of conviction/waiver of jury trial form detailing that the court admonished the defendant, that it appeared to the court that the defendant made the plea freely and voluntarily and was aware of the consequences of the plea, et cetera, applies not just to when the defendant waives his right to counsel, but also to when he is represented by counsel. Thus, we find no merit to Mr. Watkins’ suggestion that the face of the judgment of convic-tionAvaiver of jury trial form evidences that the trial court did not advise him of his rights in connection with the guilty plea.

Id., 2013-1248 pp. 27-33, 146 So.3d 294, 312-14

In this ease, as in Watkins, supra, the Texas certified pack contains the previously discussed judgment of conviction/waiver-of jury trial form, affirmatively stating that Defendant waived the right to trial by jury and entered the plea of guilty to the listed offense; that the court “then” “admonished” Defendant |1Bas required by law; that it appeared to the court that Defendant was mentally competent to stand trial, made the plea voluntarily, and was aware of the consequences of the plea; that the district court received the plea and entered it of record; and that it found Defendant guilty and pronounced sentence. The sentence as reflected by the judgment of conviction/waiver of jury trial was fifteen days in “county jail.”

Based upon the analysis performed by this Court in Watkins, supra, in the case sub judice, the State met its burden to prove the existence of the prior guilty plea and that Defendant was represented by counsel when it was taken. Consequently, the burden of proof shifted to Defendant to show that his Texas guilty plea was not voluntary. Defendant made no such showing. Nothing in the Texas certified conviction packet establishes that Defendant’s plea of guilty did not represent a knowing and voluntary decision. Accordingly, Defendant failed to meet his burden of proof, and the burden did not shift back to the State to show that the plea represented a knowing and voluntary choice. Therefore, the district court abused its discretion in finding that the 2008 Texas conviction could not be used to adjudicate Defendant a third-felony offender.

For the forgoing reasons, Defendant’s convictions are affirmed. The district court’s ruling that Defendant is a second-felony offender rather than a third-felony offender is reversed, and Defendant’s twenty years at hard labor sentence as a double offender for distribution of marijuana is vacated. The case is remanded, and the district court is instructed to resen-tence Defendant as a third-felony offender as to his distribution of marijuana conviction.

CONVICTION AFFIRMED; WRIT GRANTED; SENTENCE VACATED; REMANDED WITH INSTRUCTIONS

JENKINS, J., DISSENTS; REASONS TO FOLLOW

      . La. R.S. 40:966(A)(1).

      . At the time of the offense, possession of Tramadol was made illegal by La. R.S. 40:1238.1, which prohibited possession of legend drugs without prescriptions. Two relevant changes have taken place since that time. First, La. R.S. 40:1238.1 was redesignated, although its contents did not change, as La. R.S. 40:1060.13 by H.C.R. No. 84 of the 2015 Regular Legislative session. Thus, any reference to La. R.S. 40:1238.1 in this opinion refers to the version of the statute in place on June 10, 2014. Secondly, Tramadol has been reclassified. Tramadol, at the time of this opinion, is classified as a Schedule IV controlled dangerous substance. See La. R.S. 40:964 Schedule IV(A)(3). Thus, any reference to Tramadol as a legend drug is a reference to its classification at the time of the offense.

      . La. R.S. 15:529.1 et seq,

      . Because we find that Defendant was not sentenced under the proper section of the Louisiana Habitual Offender statute and must be resentenced, we pretermit Defendant's sole counseled assignment of error, which asserts that his sentence is excessive. Further, we note that Defendant's conviction and sentence of three years for possession of a legend drug is unchanged by this opinion.

      . Det. Biondillio was the sole witness to testify at the motion to suppress hearing on January 30, 2015.

      . Mizell testified that she did purchase gas and a soft drink from Brothers.

      . Defendant's counseled brief emphasizes the fact that Schulz refers to this substance sometimes as MDMA and sometimes as methamphetamine. MDMA is a common acronym for the chemical methylenedioxymethampheta-mine. See National Institute on Drug Abuse, "What is MDMA?” available at https://www. drugabuse.gov/publications/drugfacts/mdma-ecstasymolly. See also La. C.E. Art. 201 (allowing for the discretionary taking of judicial notice of a fact capable "of accurate and ready determination by resources whose accuracy cannot reasonably be questioned”). Further, Defendant was not convicted of any charge related to this particular substance.

      . In addition, the district court found Defendant guilty of the misdemeanor charge of possession of marijuana and sentenced him to ninety days.

      . Our review of the record for errors patent reveals one. In sentencing Defendant as a second-felony offender, the district court failed to restrict Defendant's sentence in conformity with La. R.S. 15:529.1(G), requiring all sentences be served without benefit of probation or suspension of sentence. However, in light of this Court's finding that Defendant is a third-felony offender and must be resen-tenced; this patent error is rendered moot.

      .In Golden, this Court denied writs when the defendant challenged the district court's denial of his motion to exclude the testimony of a criminalist. Golden, 2011-07365 at 12, 95 So.3d at 531. In that case, despite the fact that this Court did not exercise its jurisdiction over that particular evidentiary ruling, this Court found that the law of the case doctrine barred reconsideration of the issue “unless the defendant presents new evidence tending to show that the decision was patently erroneous and produced an unjust result.” Id.

      . It should be noted that Defendant requested to see the verdict forms at a hearing following his conviction. Although his attorney stated at that time that she would file a motion for the verdict forms, no such motion appears in the record.

      . La. R.S. 14:(27)64.

      . This conviction for attempted armed robbery was the basis of the district court's ruling that Defendant is a second-felony offender.

      . Texas Penal Code § 31.07 provides:
      Unauthorized use of a vehicle
      (a) A person commits an offense if he intentionally or knowingly operates another’s boat, airplane or motor-propelled vehicle without the effective consent of the owner.
      (b) An offense under this section is a state jail felony.

      . Texas Code of Criminal Procedure art. 26.13 states:
      (a)Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
      (1) the range of the punishment attached to the offense;
      (2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of a plea bargain agreement between the state and the defendant and, if an agreement exists, the court shall inform the defendant whether it will follow or reject the agreement in open court and before any finding on the plea. Should the court reject the agreement, the defendant shall be permitted to withdraw the defendant’s plea of guilty or nolo contendere;
      (3) the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and the defendant’s attorney, the trial court must give its permission to the defendant before the defendant may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial;
      (4) the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law; and
      (5)the fact that the defendant will be required to meet the registration requirements of Chapter 62, if the defendant is convicted of or placed on deferred adjudication for an offense for which a person is subject to registration under that chapter.
      (b) No plea of guilty or plea of nolo conten-dere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary,
      (c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.
      (d) The court may make the admonitions required by this article either orally or in writing. If the court makes the admonitions in writing, it must receive a statement signed by the defendant and the defendant’s attorney that he understands the admonitions and is aware of the consequences of his plea. If the defendant is unable or refuses to sign the statement, the court shall make the admonitions orally.
      (e) Before accepting a plea of guilty or a plea of nolo contendere, the court shall, as applicable in the case:
      (1) inquire as to whether a victim impact statement has been returned to the attorney representing the state and ask for a copy of the statement if one has been returned; and
      (2) inquire as to whether the attorney representing the state has given notice of the existence and terms of any plea bargain agreement to the victim, guardian of a victim, or close relative of a deceased victim, as those terms are defined by Article 56.01.
      (f) The court must substantially comply with Subsection (e) of this article. The failure of the court to comply with Subsection (e) of this article is not grounds for the defendant to set aside the conviction, sentence, or plea.
      (g) Before accepting a plea of guilty or a plea of nolo contendere and on the request of a victim of the offense, the court may assist the victim and the defendant in participating in a victim-offender mediation program.
      (h) The court must substantially comply with Subsection (a)(5). The failure of the court to comply with Subsection (a)(5) is not a ground for the defendant to set aside the conviction, sentence, or plea.
      (i) Notwithstanding this article, a court shall not order the state or any of its prosecuting attorneys to participate in mediation, dispute resolution, arbitration, or other similar procedures in relation to a criminal prosecution unless upon written consent of the state.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. Christopher M. WESLEY, Appellant.
    No. 49,439-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 26, 2015.
    Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Jerry L. Jones, District Attorney, Michael J. Fontenot, George M. Campbell, Jr., Assistant District Attorneys, for Ap-pellee.
    Before BROWN, STEWART, and LOLLEY, JJ.
   BROWN, Chief Judge.

|, Defendant, Christopher Wesley, pled guilty to second degree battery and received an agreed-upon sentence of two years to run consecutive with any other sentence and the state’s agreement not to file an habitual offender bill. Defendant appealed. The Louisiana Appellate Project was appointed to represent defendant on appeal. Defendant’s appellate counsel filed a motion to withdraw, together with an Anders brief. This Court rescinded the previously fixed pro se briefing deadline and notified defendant that he may file a brief and request to view the appellate record. Defendant did not make a pro se filing with this Court within the briefing delay. For the reasons stated herein, the motion to withdraw is granted, and defendant’s conviction and sentence are affirmed.

Discussion

Defendant was charged by bill of information with aggravated second degree battery, which was amended to second degree battery. The factual basis for the charge was stated by the prosecutor at the time of the guilty plea. The state indicated that on March 26, 2012, defendant was incarcerated at Ouachita Correctional Center when he attacked another inmate after that inmate had made certain remarks about defendant earlier in the day. Defendant struck the victim in the face, causing injuries that required stitches. Defendant agreed with the recitation of facts, pled guilty and was sentenced to the agreed-upon term.

Appellate counsel’s brief outlines the procedural history of the case and the action of the trial court. The brief also contains a detailed and 12reviewable assessment for both defendant and the appellate court of whether the appeal was worth pursuing. State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Defense counsel further verifies that he mailed copies of the motion to withdraw and his brief to defendant, in accordance with Anders, supra, and Jyles, supra.

A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2. Defendant was specifically advised during the guilty plea and sentencing colloquy that he would not be allowed to appeal the length or severity of the sentence, and defendant expressed that he knew he was giving up that right.

A review of the record leads us to concur with appellate counsel and the state that there exist no nonfrivolous issues to appeal. Accordingly, the motion to withdraw will be granted, and the conviction and sentence are affirmed.

We have also reviewed the record for error patent and have found none.

Conclusion

For the foregoing reasons, the motion to withdraw is granted. The conviction and sentence of defendant, Christopher M. Wesley, are affirmed.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.

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


author: STONE, J.

text:
    STATE of Louisiana, Respondent v. David Carey SHOUPE, Applicant.
    No. 50,068-KH.
    Court of Appeal of Louisiana, Second Circuit.
    July 20, 2016.

      David Carey Shoupe, pro se.
    James Edward Stewart, Sr., District Attorney, Jessica Diane Cassidy, Tommy Jan Johnson, Assistant District Attorneys, for Respondent.
    Before WILLIAMS, LOLLEY, and STONE, JJ.
   STONE, J.

Lin this post-conviction relief proceeding, pro se applicant, David Shoupe (“Shoupe”), seeks this court’s supervisory review of the trial court’s denial of his claim that he was entitled to a 12-person jury, rather than the 6-person jury which found him guilty as charged of driving while intoxicated (“DWI”), fourth offense. Since Shoupe’s punishment mandated hard labor, his conviction by the 6-person jury rather than a 12-person jury was improper. Accordingly, we grant Shoupe’s writ application, vacate his conviction and sentence, and remand the matter for a new trial.

FACTS

Following his arrest for driving while intoxicated on July 3, 2008, the state filed a bill of information charging Shoupe with DWI, fourth offense, in violation of La. R.S. 14:98. The state then twice amended the bill to charge Shoupe with “Driving "While Intoxicated—Subsequent Fourth Offense” in violation of La. R.S. 14:98. The predicate offenses included convictions for DWI, third offense, on October 4, 2000, Docket No. 208,796 in the 1st JDC; on August 14, 2003, Docket No. 216,027, in the 1st JDC; on August 14, 2003, Docket No. 225,967, in the 1st JDC; and on November 19, 2003, Docket No. 115,766, in the 26th JDC.

The present matter was tried before a 6-person jury, which returned a unanimous verdict of guilty as charged on May 13, 2010. Thereafter, Shoupe was adjudicated a second-felony offender based on a prior |2conviction for aggravated burglary and sentenced to 20 years at hard labor without benefit of parole, probation, or suspension of sentence. The trial court denied Shoupe’s motions for judgment of acquittal, a new trial, to quash the habitual offender bill, and for reconsideration of sentence. Shoupe then appealed on the grounds of insufficiency of the evidence, the denial of exculpatory evidence, the denial of his motion to quash, and excessive sentence. In State v. Shoupe, 46,395 (La.App.2d Cir.06/22/11), 71 So.3d 508, this court affirmed Shoupe’s conviction and amended his sentence to provide, in accordance with La. R.S. 14:98(E), that only the first 60 days of the sentence be served without benefit of parole.

In an application for post-conviction relief filed on January 15, 2013, Shoupe claimed, inter alia, that his trial by a jury of 6 persons, instead of 12 persons, was in violation of La. Const. Art. I, § 17 and La. C. Or. P. art. 782(A) because his potential sentence included mandatory confinement at hard labor under the provisions of La. R.S. 14:98(E)(4)(a). The trial court denied Shoupe’s claim of improper jury composition. The trial court found that Shoupe had inexcusably failed to timely raise an objection on appeal.

Shoupe filed for supervisory review of the trial court’s denial of his application for post-conviction relief. Shoupe argued that he had been required to participate in substance abuse treatment and home incarceration as a special condition of probation imposed for his predicate DWI third-offense convictions. Therefore, he argued that he faced a mandatory hard Llabor sentence under La. R.S. 14:98(E)(4)(a) for his DWI fourth-offense conviction and that he should have been tried by a 12-person jury.

On June 12, 2014, this court granted Shoupe’s writ application in part to remand for an evidentiary hearing and reconsideration of the jury composition claim in light of La. Const. Art. I, § 17; La. C. Cr. P. arts. 782 and 930.3; State v. Brown, 2011-1044 (La.03/13/12), 85 So.3d 52; and State v. Jones, 2005-0226 (La.02/22/06), 922 So.2d 508.

At the evidentiary hearing on August 18, 2014, no evidence was presented. Counsel appointed for Shoupe argued that because Shoupe had previously been required to participate in substance abuse treatment and home incarceration as part of his sentences for his predicate DWI third-offense convictions, he was subject to a mandatory hard labor sentence and should have been tried by a 12-person jury. Counsel asserted that trial by a 6-person jury, when a 12-person jury is required, is a structural defect that nullifies the conviction and sentence. The state countered that Shoupe had not produced any evidence to show that he received substance abuse treatment as ordered by the court as part of the sentences imposed for his prior convictions. The state asserted that the condition of inpatient treatment had been waived by the trial court and that Shoupe’s probation officer reported that Shoupe had not completed that condition of probation. Based on Shoupe’s inability to prove that he met the requirements of substance abuse treatment and home incarceration, the trial court denied Shoupe’s claim.

Seeking supervisory review, Shoupe argues that he did not have to show that he actually completed substance abuse treatment. Under La. R.S. 14:98(E)(4)(a), Shoupe contends that imprisonment at hard labor was [.¡mandated if he had previously been required to participate in substance abuse treatment and home incarceration. Thus, Shoupe claims his conviction by the 6-person jury rather than a 12-person jury constituted a nonwaivable structural defect that requires automatic reversal.

In contrast, the state argues that Shoupe did not prove he was subject to mandatory hard labor. According to the state, the trial court granted Shoupe a postponement of his substance abuse treatment and the record does not indicate that Shoupe participated in substance abuse treatment prior to the expiration of his probationary period for his DWI third-offense convictions,

This court ordered Shoupe’s writ granted to docket for our review, and stayed the matter pending the Louisiana Supreme Court’s decision in State v. Dahlem, 2013-0577 (La.App. 1st Cir.06/18/14), 148 So.3d 591, unit granted, 2014-1555 (La.03/27/15), 161 So.3d 646, which raised a similar jury composition issue. The stay was lifted following the Louisiana Supreme Court’s ruling in State v. Dahlem, 2014-1555 (La.03/15/16), 197 So.3d 676, and we now address the merits of Shoupe’s writ application.

DISCUSSION

The state’s bill of information charged Shoupe with “Driving While Intoxicated—Subsequent Fourth Offense” in violation of La. R.S. 14:98, and made no reference to any specific sentencing provision in the statute. At the time Shoupe committed the instant offense, La. R.S. 14:98 included two | ¡¡penalty provisions for a DWI fourth-offense conviction based upon the defendant’s prior sentencing history. Pursuant to La. R.S. 14:98(E)(1)(a), the unenhanced provision, a DWI fourth-offense conviction mandated the defendant “shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years,” with sixty days of the sentence imposed without benefit of probation, parole, or suspension of sentence. However, if the defendant had previously been required to participate in substance abuse treatment and home incarceration for a DWI third-offense conviction, La. R.S. 14:98(E)(4)(a) mandated the defendant “shall be imprisoned at hard labor for not less than ten nor more than thirty years,” with at least three years of the sentence imposed without benefit of probation, parole, or suspension of sentence. (Emphasis added.)

During Shoupe’s 6-person jury trial, the state introduced documentary evidence (State’s Exhibit No. S-8) that established Shoupe was sentenced to substance abuse treatment and home incarceration for his DWI third-offense convictions. Shoupe was found guilty of DWI fourth-offense, and pursuant to La. R.S. 15:529.1, subsequently adjudicated a second-felony offender and sentenced to 20 years at hard labor without benefit of parole, probation, or suspension of sentence. In our review of the record, we could not determine whether the trial court considered evidence from Shoupe’s predicate DWI third-offense convictions in sentencing him. However, before this court amended Shoupe’s sentence, it was consistent with the enhanced language in | La. R.S. 14:98(E)(4)(a) and not the unenhanced language in La. R.S. 14:98(E)(1)(a).

Notwithstanding the equivocal bill of information and the uncertainty as to what provision of La. R.S. 14:98(E) the trial court sentenced Shoupe under, both the Louisiana Constitution and Code of Criminal Procedure mandate a defendant charged with an offense “in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons.” La. Const. Art. I, § 17; See also La. C. Cr. P. art. 782(A) (emphasis added). Once evidence was introduced at trial that Shoupe was required to participate in substance abuse treatment and home incarceration for his DWI third-offense convictions, sentencing under La. R.S. 14:98 E(l) was unavailable, State v. Wiltcher, 41,981 (La.App.2d Cir.05/9/07), 956 So.2d 769, 777, and his trial required a 12-person jury. As acknowledged by Justice Weimer in his dissent in State v. Dahlem, 2014-1555 (La.03/15/16), 197 So.3d 676:

Once the district court was alerted by the state’s evidence of the defendant’s prior sentence of substance abuse treatment and home incarceration, just as much as the district court was stripped of any discretion to sentence the defendant to incarceration without hard labor, so, too, was the court stripped of the ability to proceed with a six-person jury.

Thus, Shoupe’s trial by a 6-person jury was improper. See State v. Johnson, 2010-196 (La.App. 3d Cir.11/24/10), 52 So.3d 273; State v. Johnson, 2015-0472 (La.App. 1st Cir.06/2/16), — So.3d-, 2016 WL 3134588 (Welch, J., dissenting).

In State v. Jones, 2005-0226 (La.02/22/06), 922 So.2d 508, the Louisiana Supreme Court modified longstanding jurisprudence that an incorrect number of seated jurors, either more than or less than required, ^renders the verdict and sentence null. Instead, the court held that a conviction by a jury composed of a greater number of persons than constitutionally required is no longer a nonwaivable jurisdictional defect subject to automatic nullity, but rather it is an error subject to harmless error analysis that requires reversal only if the defendant can demonstrate that he was prejudiced. See also State v. Brown, 2011-1044 (La.03/13/12), 85 So.3d 52.

Finding no structural error, the Louisiana Supreme Court concluded that receiving six more factfinders than constitutionally required did not prejudice the defendants in Jones and Brown, because they were afforded greater protections than the law required. The court in Jones and Brown, however, did not address the situation where a defendant is tried by a jury composed of a fewer number of persons than constitutionally required. In such a case, as in the case sub judiee, six of the constitutionally mandated factfinders are absent from the defendant’s jury trial.

Furnishing a defendant with fewer factfinders than constitutionally required cannot be considered a harmless error because the defendant is failing to receive the minimum procedural safeguards provided by law. It is the function of the jury to determine whether or not the state proved all the essential elements of the crime charged beyond a reasonable doubt. State v. Lacoste, 256 La. 697, 237 So.2d 871, 874 (1970). However, six of the jurors to which Shoupe was constitutionally entitled were not present to participate in the decision. As a result, Shoupe was denied a fair trial and due process under the law, and he must be retried by a 12-person jury.

CONCLUSION

IsBased on the foregoing and in accordance with La. Const. art. I, § 17 and La. C. Cr. P. Art. 782(A), David Shoupe’s writ application is granted. Shoupe’s conviction and sentence is vacated, and the matter is remanded for a new trial.

CONVICTION VACATED, REMANDED FOR NEW TRIAL.

      . La. R.S. 14:98 has been amended and reenacted by Acts 2014, No. 385, § 1, effective January 1, 2015.

      . Notably, the record shows that Shoupe had actually pled guilty to DWI six times. This matter was his seventh DWI conviction.

      . Shoupe’s original sentence was consistent with La. R.S. 14:98(E)(4)(a), the enhanced sentencing provision for DWI fourth-offenders previously sentenced to substance abuse treatment and home incarceration for a predicate DWI-third conviction.

      . Docket Nos. 216,027 and 225,957.

      . La. C. Cr, P. art. 898 provides that: Upon completion of the period of suspension of sentence or probation, or an earlier discharge of the defendant pursuant to Article 897, the defendant shall have satisfied the sentence imposed. Where part of a sentence is suspended, this provision shall not apply until the unsuspended part has been satisfied.

      . In reference to the state’s argument, La. R.S. 14:98(E)(4)(a) does not require the offender actually participate in substance abuse treatment, but only requires the offender have "been required to participate in substance abuse treatment” for a DWI third-offense conviction. Even though the trial court postponed Shoupe’s substance abuse treatment, he was still required to participate in substance abuse treatment after his recovery from a medical condition. Accordingly, Shoupe was eligible for the enhanced sentencing provision in La. R.S. 14:98(E)(4)(a).