text:
    STATE EX REL. Leroy JOHNSON v. STATE of Louisiana
    No. 2017-KH-1879
    Supreme Court of Louisiana.
    September 14, 2018
   PER CURIAM:

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

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


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE EX REL. Shannon ALEXANDER v. STATE of Louisiana
    No. 2017-KH-1446
    Supreme Court of Louisiana.
    September 14, 2018
   PER CURIAM:

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

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


author: PER CURIAM

text:
    IN RE: Paul E. BROWN
    NO. 2017-B-1930
    Supreme Court of Louisiana.
    September 18, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Paul E. Brown, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In 2012, respondent was involved in an automobile accident that caused injuries to the driver of the other vehicle. Respondent was under the influence of a prescription drug, butalbital with codeine, at the time of the accident. Respondent was arrested and charged with second offense DWI, careless operation of a motor vehicle, obstruction of justice, and vehicular negligent injuring.

In August 2013, respondent pleaded no contest to DWI, careless operation, and vehicular negligent injuring. For each count, he was sentenced to serve six months in the parish jail, with credit for time served; the sentence was suspended and respondent was placed on unsupervised probation for six months with conditions, including payment of a fine plus costs and completion of community service.

Following his conviction, the ODC referred respondent to the Judges and Lawyers Assistance Program ("JLAP") for an evaluation. In February 2014, respondent was evaluated by a clinical psychologist, Alexandra Casalino, Psy.D. Dr. Casalino expressed concern about respondent's long history of prescribed opioid usage beginning in 1996 for chronic headaches, TMJ, and neck pain, and his use of psychotropic medications (Prozac ) for sleep disturbances and depressive experiences. Respondent denied abusing prescription drugs and indicated to Dr. Casalino that he did not believe he had a problem. Based on the information gathered by Dr. Casalino, she concluded that a definitive diagnosis of substance abuse or dependence could not be made, and she recommended that respondent undergo an inpatient professional assessment at a JLAP-approved facility.

In April 2015, respondent was admitted to Palmetto Addiction Recovery Center for a three-day inpatient evaluation. According to the April 30, 2015 discharge report, respondent "easily met criteria" of the DSM-IV for diagnoses of sedative/hypnotic use disorder, moderate to severe, and opiate use disorder, moderate to severe. He used larger amounts of opiates and sedative/hypnotics over a longer time than intended, and was unable to cut down or stop using over the past several years. He described social and occupational dysfunction related to his drug usage and used while engaged in physically hazardous activities (driving). He also used opiates and sedative/hypnotics with a concurrent diagnosis of hypertension and while on medication for hypertension. Finally, the report indicated that respondent had developed a tolerance and experienced mild withdrawal symptoms from his substance use. Accordingly, Palmetto recommended that respondent complete a long-term inpatient treatment program followed by the execution of a five-year JLAP recovery agreement. Palmetto also recommended that respondent taper off all controlled medications under medical supervision and that he complete inpatient treatment "before consideration for return to the practice of law." Respondent declined to comply with Palmetto's recommendations.

DISCIPLINARY PROCEEDINGS

In September 2014, the ODC filed formal charges against respondent, alleging that his conduct violated Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer) of the Rules of Professional Conduct. Respondent answered the formal charges and essentially admitted his misconduct, but requested a hearing in mitigation.

Mitigation Hearing

The hearing committee conducted the mitigation hearing over the course of two days in August and November 2016. Respondent introduced documentary evidence at the hearing, including: (1) two letters, dated June 13, 2014 and August 3, 2016, written by Todd Arcement, D.C., a chiropractor who treated respondent for twenty years; (2) two letters, dated May 10, 2014 and August 1, 2016, written by Michael Marcello, M.D., respondent's primary physician who treated him for more than thirty years; (3) the report prepared by Dr. Casalino following her evaluation of respondent in February 2014; and (4) the report prepared by Jay Weiss, M.D., the medical director of Palmetto, following respondent's inpatient evaluation in April 2015.

Respondent testified that he has had a long-standing issue with chronic pain. He has had headaches since he was a child, and in law school he developed TMJ. In 1996 he suffered a serious neck injury after being hit by a drunk driver who had run a stop sign. As a result, respondent had problems with headaches and neck pain.

Respondent testified that ten years prior to that accident, he was rear-ended in another automobile accident, but noted that it "wasn't much of anything." Then, in 2008, respondent was hit by a car while stopped at a red light. Finally, in 2015, respondent was rear-ended while sitting in traffic. According to respondent, these accidents aggravated his condition.

Respondent testified that Dr. Marcello and Dr. Arcement worked together to manage his pain. Along with physical therapy and chiropractic care, respondent tried "just about every kind of medication" to alleviate his problems. Then, in 2012, he was given butalbital with codeine to help relax his muscles and help with the pain. Respondent indicated that he took his medication as prescribed. Respondent testified that the last time he took this medication was the night before the August 2012 accident; however, he also had been experiencing vertigo and high blood pressure, which he felt were more likely causes of the accident than the medication. Respondent testified that he has since discontinued the medication and has received several epidural steroid injections. Respondent testified that since receiving the injections in May, June, and July 2016, he has not taken any pain medication, muscle relaxers, or anything else. Respondent testified that he "got relief from the very first shot and then it got better the second shot and then the third." Due to the success of these shots, respondent testified that he now only takes blood pressure medicine.

Respondent denied that he has a drug problem warranting substance abuse treatment or the requirement that he execute a JLAP agreement. Respondent emphasized that in the past he has taken only pain medication prescribed to him by "a doctor that knew my history for 30 years. And I took the medication as prescribed." Moreover, he reiterated that as of 2016, he is no longer taking any pain medication. Respondent testified that he is sober at this time and does not need any help in staying sober, as recommended by the professionals at Palmetto.

Hearing Committee Report

Following the hearing, the hearing committee determined that for an extended period of time, respondent has been dependent upon, if not addicted to, opiates and sedatives, for which he had developed a high tolerance. His addiction was such that he had developed withdrawal from the medications. While recognizing that respondent has recently made vast improvements in limiting his prescription drug usage, the committee nonetheless recommended that respondent execute a five-year JLAP recovery agreement as a condition of a fully deferred one year and one day suspension.

Respondent filed an objection to the sanction and conditions recommended by the hearing committee.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee erred in finding that respondent had experienced withdrawal symptoms. Additionally, the board noted that respondent stopped using pain medication several months prior to the hearing and has had success with alternative treatments to manage his pain.

Therefore, the board recommended that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to a two-year period of probation. Given the change in circumstances since respondent's last evaluation at Palmetto in 2015, the board also recommended that he undergo an updated substance abuse evaluation at a JLAP-approved facility and comply with whatever conditions are recommended pursuant to that evaluation.

The ODC filed an objection to the board's recommendation, and accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b). The ODC noted that the board had failed to set forth a time period within which respondent was required to undergo the updated evaluation, and that the recommended two-year probationary term failed to allow for an increased term of supervision should such be required following the evaluation. In his brief to this court, respondent also objected to the board's recommendation insofar as it requires him to undergo another substance abuse evaluation. He claimed that since the first evaluation at Palmetto in 2015, he has pursued alternative treatments for his chronic pain and is free of using opiates.

Interim Order of the Court

Following oral argument, we issued an interim order on May 14, 2018 which provided, in pertinent part:

IT IS ORDERED that within thirty days of the date of this order, respondent shall submit to an updated substance abuse evaluation at a facility approved by the Judges and Lawyers Assistance Program. Following the evaluation, the parties shall cause a copy of the report of the evaluation to be filed in this court as soon as practicable.
IT IS FURTHER ORDERED that the record of this matter shall be held open pending the filing of the report of the evaluation. The parties may file supplemental briefs addressing the report within ten days of the filing thereof.

On June 11, 2018, respondent submitted to a three-day evaluation at the Professionals' Wellness Evaluation Center ("PWEC") in Alexandria, a facility approved by JLAP. On June 20, 2018, PWEC released its report, indicating that respondent's hair test was positive for opiates, despite his claim that he was no longer taking opioid pain medication, and that respondent has an untreated substance use disorder which will require long-term inpatient treatment at a JLAP-approved facility.

On June 29, 2018, the ODC forwarded the PWEC report to this court. By order dated July 5, 2018, we formally received the report into evidence. Thereafter, both parties filed responses to the PWEC report.

In its response, the ODC suggests that respondent has not been truthful concerning his continuing use of prescription drugs and that a fully deferred suspension is no longer appropriate in light of his untreated substance abuse issues. Rather, the ODC urges the court to impose a one year and one day suspension, with no portion thereof deferred.

In his response, respondent states that he suffered severe pain after falling in his kitchen in January 2018, causing injuries to his head, neck, and back. To relieve the pain, he took the remains of an old prescription for hydrocodone that he had in his medicine cabinet. However, respondent represents that he did not disclose his use of hydrocodone when he was evaluated at PWEC in June 2018 because he did not recall this accident; instead, his memory of the accident was only triggered when he received the results of his hair test, which was positive for recent use of hydrocodone. Respondent concludes that he is willing to undergo regular "stand alone" monitoring for drug and alcohol use, but that he is not in need of inpatient substance abuse treatment.

DISCUSSION

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

The record of this matter supports a finding that respondent pleaded no contest to first offense DWI, careless operation of a motor vehicle, and vehicular negligent injuring. This conduct is a violation of the Rules of Professional Conduct as charged.

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

Respondent negligently violated duties owed to the public and the legal profession, causing potential and actual harm. The baseline sanction for this type of misconduct is suspension.

There are several mitigating factors supported by the record, including the absence of a prior disciplinary record, absence of a dishonest or selfish motive, personal or emotional problems, character and reputation, remorse, and the imposition of other penalties or sanctions. Moreover, there is no evidence to indicate that any client was adversely impacted by respondent's conduct. In aggravation, respondent has substantial experience in the practice of law (admitted 1983) and has engaged in illegal conduct.

In In re: Baer , 09-1795 (La. 11/20/09), 21 So.3d 941, we stated the following with respect to appropriate sanctions for DWI offenses:

We have imposed sanctions ranging from actual periods of suspension to fully deferred suspensions in prior cases involving attorneys who drive while under the influence of alcohol. However, as a general rule, we tend to impose an actual suspension in those instances in which multiple DWI offenses are at issue, as well as in cases in which the DWI stems from a substance abuse problem that appears to remain unresolved. [Emphasis added.]

In this case, respondent, like a growing number of people in our country, developed an addiction to medications that were validly prescribed by his physician to relieve severe and chronic pain. As shown by the PWEC evaluation, he clearly requires long-term inpatient treatment to successfully address this unfortunate disease, but thus far he has been reluctant to agree to participate in such treatment. In order to fulfill our role of ensuring the public is protected, we conclude it is necessary to fashion a suspension which is responsive to respondent's current misconduct and provides him with an adequate opportunity to address his substance abuse issues so he may safely practice law in the future.

Accordingly, we will suspend respondent from the practice of law for one year and one day. In view of the mitigating factors, we will defer all but ninety days of this suspension, subject to a two-year probationary period and with the condition that during the active period of his suspension, respondent shall enter into long-term inpatient treatment at a JLAP-approved facility, as recommended by PWEC. Thereafter, he shall comply with any and all recommendations made by the treatment facility and JLAP, including, but not limited to, entering into a JLAP recovery agreement. Should respondent fail to comply with any of these conditions or commit any misconduct during the probationary period, the ODC shall have the right to file a summary petition in this court requesting that the deferred portion of respondent's suspension be made immediately executory, or requesting other relief as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Paul Eugene Brown, Louisiana Bar Roll number 1736, be and he hereby is suspended from the practice of law for a period of one year and one day. It is further ordered that all but ninety days of this suspension shall be deferred, subject to a two-year period of probation and the other conditions set forth in this opinion. Any failure to comply with these conditions or other misconduct during the probationary period may be grounds for making the deferred portion of the suspension executory or imposing other discipline as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

WEIMER, J., dissents for reasons assigned by Justice Crichton.

Hughes, J., dissents for the reasons assigned by Crichton, J.

CRICHTON, J., dissents and assigns reasons:

I dissent in what I believe is a premature disposition of respondent's case. The majority's per curiam ignores respondent's prayer for an opportunity to be heard as to the January 2018 incident and the June 2018 PWEC report. Specifically, in my view, respondent should be allowed the opportunity to confront and cross-examine the methodology and results of the test as well as an opportunity to provide an explanation under oath as to these issues. Anything less offends fundamental due process, which we must extend to all parties, including lawyers. Accordingly, in lieu of immediately implementing sanctions, I would instead remand the matter for an evidentiary hearing.

      Respondent was first arrested for DWI in 2003. He was placed on probation in connection with that offense. In 2004, the Terrebonne Parish District Attorney's Office nolle prosequied the charges. The ODC was not aware of this arrest.


text:
    STATE EX REL. Carl J. DAVIS, Jr. v. STATE of Louisiana
    No. 2017-KH-1092
    Supreme Court of Louisiana.
    September 14, 2018
   PER CURIAM:

Denied. Relator fails to show that the state withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As to his remaining claim, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

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


text:
    Lydia DEGUEYTER v. FIRST AMERICAN TITLE COMPANY
    No. 2017-C-2163
    Supreme Court of Louisiana.
    September 18, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF ST. MARTIN
   PER CURIAM

Having considered the record, oral argument and briefs of the parties, we find the court of appeal correctly reversed the district court's judgment granting summary judgment in favor of First American Title Co. However, we find the court of appeal erred in granting summary judgment in favor of plaintiff. See Penalber v. Blount , 550 So.2d 577 (La. 1989) (explaining that summary judgment "is rarely appropriate for a determination based on subjective facts such as intent, motive, malice, knowledge or good faith."). Accordingly, the judgment of the court of appeal is affirmed in part and reversed in part. The motions for summary judgment filed by both parties are hereby denied, and the case is remanded to the district court for further proceedings.

GENOVESE, J., dissenting in part.

I agree with the majority that the court of appeal erred in granting summary judgment in favor of Linda Degueyter. However, I disagree with the majority that the court of appeal correctly reversed the trial court's grant of summary judgment in favor of First American Title Company (First American).

Resolution of First American's motion for summary judgment requires an interpretation and application of its owner's title insurance policy. First American's motion for summary judgment does not , as the majority concludes, require a determination of "subjective facts such as intent, motive, malice, knowledge or good faith." Penalber v. Blount , 550 So.2d 577, 583 (La.1989). Rather, summary judgment in favor of First American is appropriate because there are no genuine issues of material fact as to the lack of coverage in favor of Degueyter under the title insurance policy, and the insurer is entitled to judgment as a matter of law. La.Code Civ.P. art. 966. For these reasons, I find the court of appeal erred in reversing the trial court's grant of summary judgment in favor of First American.

Accordingly, I respectfully dissent in part.


author: PER CURIAM: Weimer, J., dissenting. CLARK, J., dissenting.

text:
    STATE EX REL. Lee Roy JENKINS v. STATE of Louisiana
    No. 2017-KH-0302
    Supreme Court of Louisiana.
    August 31, 2018
    ON SUPERVISORY WRITS TO THE TWENTIETH JUDICIAL DISTRICT COURT, PARISH OF EAST FELICIANA
   PER CURIAM:

Writ granted. Relator pleaded guilty to murder in 1972 and was sentenced to imprisonment at hard labor for the balance of his natural life. At that time, the crime of murder was not differentiated into degrees. In Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders, finding instead that the sentencing court must first hold a hearing to consider mitigating factors, such as a defendant's youth and attendant characteristics, before imposing this severe penalty. In Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the United States Supreme Court further stated,

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.

Montgomery , 577 U.S. at ----, 136 S.Ct. at 736. Relator here seeks a Miller hearing. However, none is necessary because a provision of law exists remedying any Miller violation by providing for relator's parole eligibility.

Louisiana Revised Statute 15:574.4(D)(1) provides:

Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment who was under the age of eighteen years at the time of the commission of the offense, except for a person serving a life sentence for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ), shall be eligible for parole consideration pursuant to the provisions of this Subsection if all of the following conditions have been met ....

Relator is a person serving a sentence of life imprisonment who was under the age of eighteen years at the time of the commission of the offense. Therefore, he shall be eligible for parole consideration pursuant to the provisions of the subsection (when all of the conditions enumerated in that subsection are met). The exception for a person convicted of first or second degree murder does not apply to him because he pleaded guilty to murder before the legislature in 1973 divided the crime of murder in Louisiana into separate offenses of first and second degree murder.

Therefore, we grant relator's writ application to direct the Department of Corrections to revise relator's prison master record to reflect that his sentence is not without benefit of parole. Further, the Department is directed to revise relator's prison master record according to the criteria in La.R.S. 15:574.4(D)(1) to reflect an eligibility date for consideration by the committee on parole pursuant to La.R.S. 15:574.4(D)(2), (3).

WEIMER, J., would remand to the district court for a hearing.

CLARK, J., would deny.

Weimer, J., dissenting.

I would remand to the district court for a hearing.

CLARK, J., dissenting.

I would deny the writ.


text:
    STATE of Louisiana v. Melvin R. BILLIOT
    NO. 2017-KO-2144
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    Tanya MADERE v. Louise Gautreaux COLLINS, M.D. and Ochsner Medical Center-Kenner, LLC
    NO. 2018-C-0678
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.
   HUGHES, J., would grant.


author: GUIDRY, J., would grant.

text:
    Ryan Lee STRODER, Individually, etc. v. HILCORP ENERGY COMPANY, et al.
    NO. 2018-C-0714
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.
   GUIDRY, J., would grant.


text:
    The ESTATE OF Jesse Clarence BROWN, Sr. v. NEW YORK LIFE INSURANCE
    NO. 2018-OC-0719
    Supreme Court of Louisiana.
    September 14, 2018
    Denied. In the absence of an order of remand, this court lacks jurisdiction over a case removed to federal court. See 28 U.S.C. § 1446.


text:
    HEALTH EDUCATION AUTHORITY OF LOUISIANA v. AFCOA LASALLE PARKING COMPANY, LLC
    NO. 2018-CC-0632
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    SUCCESSION OF Nettie Lois DEAN
    NO. 2018-00679
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    INTERDICTION OF America Jean Morris METZLER
    NO. 2018-C-0720
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    Ryan Lee STRODER, Individually, etc. v. HILCORP ENERGY COMPANY, et al.
    NO. 2018-C-0723
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.
   GUIDRY, J., would grant.


author: HUGHES, J., would grant in part.

text:
    STATE of Louisiana v. Rogelio Lucater GONZALES
    NO. 2017-KO-2128
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.
   HUGHES, J., would grant in part.


text:
    STATE of Louisiana v. Kenyon FIELDS
    NO. 2018-KH-0289
    Supreme Court of Louisiana.
    September 14, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Fields v. State, 11-0891 (La. 3/14/16), 186 So.3d 646.


text:
    LOUISIANA SAFETY ASSOCIATION OF TIMBERMEN- SELF INSURERS FUND v. WILL TRANSPORT, L.L.C.
    NO. 2018-C-0734
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


author: WEIMER, J., recused.

text:
    STATE EX REL. Michael RAVY v. STATE of Louisiana
    NO. 2017-KH-1539
    Supreme Court of Louisiana.
    September 14, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Ravy v. State, 15-1682 (La. 10/10/16), 201 So.3d 882.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Alcus A. SMITH
    NO. 2017-KO-1643
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.
   HUGHES, J., would grant in part.


text:
    STATE of Louisiana v. Thaddeus A. WILLIAMSON
    NO. 2018-KH-0424
    Supreme Court of Louisiana.
    September 14, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Williamson v. State , 17-1957 (La. 1/29/18), 234 So.3d 70.


text:
    Carlos RUSSELL and Deshannon Russell v. Michael G. JONES, Riley & Carroll Properties, Inc. and State National Insurance Company, Inc.
    NO. 2018-C-0712
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    STATE EX REL. Willie THOMAS v. STATE of Louisiana
    NO. 2017-KH-1653
    Supreme Court of Louisiana.
    September 14, 2018
    Denied; moot. R.S. 15:574.4(H).


text:
    STATE of Louisiana v. Alcus A. SMITH
    NO. 2017-K-1660
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


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

text:
    J. C. MILES and Willie L. Miles Individually and on Behalf of their Mother Mattie Parker Myles (Deceased) v. HOSPITAL SERVICE DISTRICT NO. 1 OF TANGIPAHOA PARISH, d/b/a North Oaks Health System
    NO. 2018-C-0703
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., recused.


text:
    STATE of Louisiana v. Robert C. WILLIAMS
    NO. 2017-K-1663
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    LAKEVIEW HOME CARE, L.L.C., William Cloughley, Michael Cassidy and Christopher Vince v. Jeremy Michael PALMER, and Jeremy Palmer, CPA, L.L.C.
    NO. 2018-CC-0721
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.
   HUGHES, J., would grant.


text:
    John PALIR, III v. GUIDEONE INSURANCE COMPANY, et al.
    NO. 2018-C-0733
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


author: WEIMER, J., would grant.

text:
    Charles J. BALLAY in His Official Capacity as the District Attorney of the Twenty-fifth Judicial District v. PLAQUEMINES PARISH PRESIDENT AMOS CORMIER, III and Plaquemines Parish Government
    NO. 2018-CC-0740
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.
   WEIMER, J., would grant.


text:
    STATE EX REL. Rian TATE v. STATE of Louisiana
    NO. 2017-KH-1685
    Supreme Court of Louisiana.
    September 14, 2018
    Denied. Relator has previously exhausted his right to state collateral review. State ex rel. Tate v. State , 16-0003 (La. 4/13/17), 215 So.3d 667.


text:
    STATE of Louisiana v. Deonta WARE
    NO. 2017-KO-1853
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.
   HUGHES, J., would grant.


text:
    SEVENHILLS HEALTHCARE, LLC and Apollo Management Consultants, LLC v. ST. JAMES BEHAVIORAL HEALTH HOSPITAL INC., Lance E. Bullock, M.D., Rama Kongara, M.D. and Wendell B. Smith
    SevenHills Healthcare, LLC, Apollo Management Consultants, LLC and Gopinath Gopalam v. Wendell B. Smith
    NO. 2018-C-0704
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    STATE of Louisiana v. Chadrick CARTER
    NO. 2017-KP-1866
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.
   JOHNSON, C.J., would grant.


text:
    LOUISIANA SAFETY ASSOCIATION OF TIMBERMEN-SELF INSURERS FUND v. WILL TRANSPORT, L.L.C.
    NO. 2018-C-0731
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    Wilson BROWN and Carolyn Brown v. TRINITY UNITED METHODIST CHURCH
    NO. 2018-C-0743
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE EX REL. Bernard GRANT v. STATE of Louisiana
    NO. 2017-KH-1942
    Supreme Court of Louisiana.
    September 14, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Grant v. State , 15-1461 (La. 9/16/16), 201 So.3d 251.


text:
    STATE of Louisiana v. Sade HICKMAN
    NO. 2017-K-2035
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY v. Ruby S. COX, et al.
    NO. 2018-CC-0747
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    STATE of Louisiana v. Leroy P. JOHNSON
    NO. 2018-KH-0763
    Supreme Court of Louisiana.
    September 14, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Johnson v. State, 17-1879 (La.), --- So.3d ----.


text:
    STATE of Louisiana v. Shavez WILEY
    NO. 2017-KO-2114
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    ELEMENT PICTURES, L.L.C. v. LIFT (LOUISIANA INSTITUTE OF FILM TECHNOLOGY), L.L.C.
    NO. 2018-CC-0724
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    STATE of Louisiana v. Mark LEFEVRE
    NO. 2018-KK-0727
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    STATE of Louisiana v. Terry James GOODEAUX -aka- Terry Goodeaux
    NO. 2017-KO-2143
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    Mozine JOHNSON v. STATE of Louisiana
    NO. 2018-KH-0933
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    STATE of Louisiana v. Mario DEFELL
    NO. 2018-KK-1142
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.
    HUGHES, J., would grant and would reinstate ruling of trial court.


author: CRICHTON, J., would grant.

text:
    Beatriz PEREZ v. HAI NGUYEN
    NO. 2018-CJ-1274
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.
   CRICHTON, J., would grant.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Timothy V. LINCOLN
    NO. 2017-K-2030
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    Succession of Keffer Thomas DELINO, II v. The JAKE DELINO TRUST, et al.
    NO. 2018-C-0730
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    Deborah LAYMON v. MAGNUSON GRAND HOTEL AND CONFERENCE CENTER Formerly Quality Inn and Conference Center, Monmouth Holding, Inc. and ABC Insurance Company
    NO. 2018-CC-0746
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    DeSoto Parish Sheriff Jayson RICHARDSON v. Louisiana Legislative Auditor Daryl G. PURPERA
    NO. 2018-CC-1326
    Supreme Court of Louisiana.
    September 14, 2018
    Denied.


text:
    STATE of Louisiana IN the INTEREST OF A.L.D. and L.S.D.
    No. 2018-CJ-1271
    Supreme Court of Louisiana.
    September 21, 2018
    On Writ of Certiorari and/or Review Juvenile Court, Parish of Caddo, No. 157740; Court of Appeal, Second Circuit, No. 52,239-JAC.
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit-"It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send, up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.


author: GUIDRY, J., recused.

text:
    STATE of Louisiana v. Teddy CHESTER
    NO. 2018-KK-1527
    Supreme Court of Louisiana.
    September 18, 2018
    Denied.
   GUIDRY, J., recused.

CLARK, J., would grant and reinstate the trial court's ruling.

CRICHTON, J., recused.


text:
    STATE of Louisiana v. Teddy CHESTER
    NO. 2018-KK-1528
    Supreme Court of Louisiana.
    September 18, 2018
    Denied.
   GUIDRY, J., recused.

CLARK, J., would grant and reinstate the trial court's ruling.

CRICHTON, J., recused.


text:
    Kerry SIMMONS v. CORNERSTONE INVESTMENTS, LLC, et al.
    NO. 2018-CC-0735
    Supreme Court of Louisiana.
    September 21, 2018
   Granted. See Order Attached.

Attachment

SUPREME COURT OF LOUISIANA

No. 2018-CC-0735

KERRY SIMMONS

VERSUS

CORNERSTONE INVESTMENTS, LLC, ET AL.

On Supervisory and/or Remedial Writs

Ninth Judicial District Court, Parish of Rapides, No. 246,084, Division G;

Court of Appeal, Third Circuit, No. CW 17-01077.

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

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

Witness the Honorable Justices of the Supreme Court of the State of Louisiana, on this 21st day of September, in the year of our Lord, Two Thousand-Eighteen.

_______________

John Tarlton Olivier

Clerk of Court

/s/

Deputy Clerk of Court


text:
    STATE of Louisiana v. Shaun WATERS
    NO. 2018-KH-0969
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Brandon BELL-BRAYBOZ
    NO. 2018-KH-1010
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that petitioner sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R- X § 5(b).


text:
    STATE of Louisiana v. Steven Ray KILLINGSWORTH
    NO. 2018-KH-1011
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that petitioner sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Jamel PICKKEY v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, et al.
    NO. 2018-CT-1065
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that petitioner sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Zachary D. MOSLEY
    NO. 2018-KH-1013
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that petitioner sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Jorge Lopez BENAVIDES
    NO. 2018-KH-1029
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that petitioner sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Anthony J. MONTECINO v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2018-CI-1039
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    Freddie Ray LEWIS v. RICHLAND PARISH, et al.
    NO. 2017-CI-0852
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Sheryl MARTIN
    NO. 2018-KH-1014
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that petitioner sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Terrance Lamont JOHNSON aka - Terrance L. Johnson
    NO. 2018-KH-1016
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Ryan POREE
    NO. 2017-KP-2127
    Supreme Court of Louisiana.
    September 21, 2018
    Denied.


text:
    STATE of Louisiana v. Terrance Lamont JOHNSON aka - Terrance L. Johnson
    NO. 2018-KH-1021
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Wesley RICKS
    NO. 2018-KH-1027
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that petitioner sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Joshua CUMBERLAND
    NO. 2018-KH-1073
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.


text:
    STATE of Louisiana v. Eric Dominic NABORS
    NO. 2018-K-1477
    Supreme Court of Louisiana.
    September 21, 2018
    Denied.


text:
    STATE of Louisiana v. Demarcus Devonte KIMBLE
    NO. 2018-KH-0925
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that petitioner sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Kenneth WHITMORE
    NO. 2017-KP-1434
    Supreme Court of Louisiana.
    September 21, 2018
    Denied.


text:
    Brandon FORVENDEL v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    NO. 2017-02032
    Supreme Court of Louisiana.
    September 21, 2018
    Denied.


text:
    STATE of Louisiana v. Corey Lee ROBINSON
    NO. 2017-KO-2134
    Supreme Court of Louisiana.
    September 21, 2018
    Denied.


text:
    STATE of Louisiana v. Demarcus S. PAYTON
    NO. 2017-KO-2171
    Supreme Court of Louisiana.
    September 21, 2018
    Denied.


text:
    STATE of Louisiana v. Brian K. ALLEN, Jr.
    NO. 2018-KO-0191
    Supreme Court of Louisiana.
    September 21, 2018
    Denied.


text:
    Simone B. GUILLORY, et al. v. Samuel S. BROUSSARD, Jr., et al.
    NO. 2018-C-0631
    Supreme Court of Louisiana.
    September 21, 2018
    Denied.
   GUIDRY, J., would grant.

CLARK, J., would grant.

GENOVESE, J., recused.


text:
    STATE of Louisiana v. Louis SMITH
    NO. 2018-KH-0927
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that petitioner sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Timothy Mark GEMELLI
    NO. 2018-KH-1071
    Supreme Court of Louisiana.
    September 21, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that petitioner sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Robert CEASAR v. Darryl VANNOY, Warden Louisiana State Penitentiary
    NO. 2018-KH-0574
    Supreme Court of Louisiana.
    September 21, 2018
    Denied.


text:
    STATE of Louisiana v. Charles MAYS, Jr.
    NO. 2017-KO-2168
    Supreme Court of Louisiana.
    September 21, 2018
    Denied.


text:
    STATE of Louisiana v. George WRIGHT
    NO. 2017-KO-2175
    Supreme Court of Louisiana.
    September 21, 2018
    Denied.


text:
    STATE EX REL. Joseph GRAY v. STATE of Louisiana
    NO. 2018-KH-0125
    Supreme Court of Louisiana.
    September 21, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Gray v. State, 14-2659 (La. 10/23/15), 177 So.3d 333.


text:
    Simone B. GUILLORY, et al. v. Samuel S. BROUSSARD, Jr., et al.
    NO. 2018-C-0628
    Supreme Court of Louisiana.
    September 21, 2018
    Denied.
   GUIDRY, J., would grant.

CLARK, J., would grant.

GENOVESE, J., recused.


author: HOLDRIDGE, J.

text:
    Randall D. SMITH v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, LICENSE CONTROL AND DRIVER IMPROVEMENT DIVISION
    2017 CA 0325
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: JUNE 04, 2018
    Glynn J. Delatte, Jr., Stephen R. Edwards, Jr., Baton Rouge, LA, Attorney for Plaintiff/Appellant, Randall D. Smith
    Jennifer Del Murray, Baton Rouge, LA, Attorney for Defendant/Appellee, State of Louisiana, Department of Public Safety, License Control and Driver Improvement Division
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE, J.

Randall D. Smith appeals the trial court's judgment that affirmed the suspension of his driver's license and required him to have an interlock ignition device placed in his vehicle as a condition of reinstatement of his driving privileges. For the reasons that follow, the judgment of the trial court is vacated and remanded for further proceedings.

DISCUSSION

In June 2010, Randall Smith was arrested and charged with driving while intoxicated (DWI). On July 25, 2014, Mr. Smith was arrested a second time for DWI at the Jack In The Box restaurant in Walker, Louisiana. Mr. Smith submitted to a chemical test for intoxication resulting in a B.A.C. of 0.158g%. Thereafter, the Department of Public Safety, Office of Motor Vehicles (OMV) suspended Mr. Smith's license for three hundred and sixty-five days pursuant to La. R.S. 32:667. Subsequently, Mr. Smith requested, and was granted, an administrative hearing to contest his license suspension. The Administrative Law Judge affirmed the suspension on October 31, 2014. On December 3, 2014, Mr. Smith fax-filed a Petition for Judicial Review in the Twenty-First Judicial District Court (21st JDC) to challenge the suspension. On December 9, 2014, a temporary stay order was issued preventing enforcement of the suspension until the hearing.

The 21st JDC signed a judgment on December 8, 2016, stating that "through stipulations of facts and written arguments as agreed upon by counsel, on Petitioner's Petition for Judicial Review ... in accordance with the provisions of La. R.S. 32:667et al ... Mr. Smith is required to have an interlock ignition device placed in his vehicle as a condition of the reinstatement of his driving privileges for a period of three hundred sixty-five (365) days." From that judgment, Mr. Smith appeals. On April 28, 2017, Mr. Smith filed a "Motion and Order To Supplement the Record of Appeal" stating that prior to the 21 JDC's decision, the parties "agreed and signed a stipulation of facts, as well as only hearing the case on memorandums." The 21st JDC granted Mr. Smith's Motion to Supplement the Record on May 8, 2017, and Mr. Smith's memorandum in support and stipulation of facts were admitted in the record.

After reviewing the record as a whole, we have determined that the 21st JDC erred in rendering a judgment based on purported stipulations between the parties, because the record did not contain the written stipulation of facts when the 21st JDC rendered its decision. The 21st JDC signed its judgment on December 8, 2016, and the written stipulation of facts were introduced into evidence on April 24, 2017. Absent such evidence, it was inappropriate for the 21st JDC to rule on the matter and consider the stipulation of facts, and it is likewise inappropriate for an appellate court to consider the matter. Thus, we have no authority to consider on appeal facts referred to in brief which were not made part of the record before the 21st JDC. See Cozzy Spot, LLC v. City of New Orleans, 2016-0529 (La. App. 4 Cir. 1/11/17), 209 So.3d 224, 227 (trial court should not have ruled on matter where judgment stated that it was based on stipulations of fact which were not included in record); Franklin v. City of Baton Rouge, 525 So.2d 674, 675 (La. App. 1 Cir. 1988) (same). Accordingly, the judgment of the trial court is vacated. We remand this matter for further proceedings consistent with this opinion. Costs are to await final disposition.

VACATED AND REMANDED.

Higginbotham, J. concurs.

Penzato J. concurs


author: CRAIN, J.

text:
    STATE of Louisiana v. Roy H. MAUGHAN Jr. and Randy Anny
    NO. 2018 KA 0121
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 04, 2018
    Ricky L. Babin, District Attorney, Lindsey D. Manda, Robin C. O'Bannon, Charles S. Long, Assistant District Attorneys, Gonzales, Louisiana, Attorneys for Plaintiff/Appellant, State of Louisiana
    L.J. Hymel, Michael Reese, Davis Tim P. Hartdegen, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, Roy H. Maughan Jr.
    Vincent J. Sotile Jr., Prairieville, Louisiana, Attorney for Defendant/Appellee, Randy Anny
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

Roy H. Maughan Jr. and Randy Anny were charged, in relevant part, with forgery under Louisiana Revised Statute 14:72B (counts one, two, and three), and theft of $77,500.00, a violation of Louisiana Revised Statute 14:67A (count four). The trial court, finding a double jeopardy violation, ordered the state to dismiss either count three or four. We vacate the order and remand for further proceedings.

FACTS

Because the matters before us were decided on a motion to dismiss filed before trial, the facts were not fully developed at trial. In counts one through three of the indictment, the state alleges Maughan and Anny submitted forged bids in the names of three companies to secure sewer work from the town of Sorrento. In count four, the state accuses the defendants of theft of $77,500.00. The defendants filed a motion to dismiss either count three or four alleging double jeopardy. The trial court granted the motion, finding the same facts would be necessary to prove all elements of count three and one element of count four. The state contends the ruling is premature. We agree.

DISCUSSION

The Fifth Amendment to the United States Constitution and Article 1, § 15 of the Louisiana Constitution guarantee no person shall be twice placed in jeopardy for the same offense. See also La. Code Crim. P. art. 591. The double jeopardy clause prohibits (1) a second prosecution for the same offense after an acquittal or conviction, and (2) absent legislative expression otherwise, multiple sentences for the same offense. See State v. Frank , 16-1160 (La. 10/18/17), 234 So.3d 27, 30 ; State v. Smith, 95-0061 (La. 7/2/96), 676 So.2d 1068, 1069. Because the defendants have not been previously acquitted or convicted of the charged offenses, their claim of double jeopardy relies on the prohibition against multiple punishments for the same offense. That claim, the state argues, cannot be decided in advance of trial.

The subject case involves a single prosecution of multiple counts arising out of the same operative facts. The supreme court addressed a claim of double jeopardy in State v. Hall , 12-0601 (La. 6/29/12), 91 So.3d 302, 303 (per curiam ), where, like the present case, a defendant was charged with multiple crimes in a single prosecution. Before trial, the trial court granted a motion to quash alleging double jeopardy. Finding the ruling premature, the supreme court reversed, explaining:

A defendant may raise a claim of double jeopardy before trial by way of a motion to quash, as well as after trial by way of a motion in arrest of judgment. However, when a double jeopardy claim arises in the context of multiple offenses allegedly committed in a single criminal episode involving a single evidentiary nexus and charged in the same bill of information or indictment, and the state has thus made no effort to prosecute the charges seriatim, and a question arises as to whether the same evidence required to convict a defendant of one offense is also the same evidence required to convict him of the other crime, the court should defer ruling on a motion to quash until trial has fully developed the factual context of a claim that [the] prosecution has implicated the double jeopardy prohibition of multiple punishments for the same offense. In the event that the evidence at trial supports a claim that defendant has been punished in a single proceeding twice for the same offense, the court may then take appropriate action by granting the motion to quash and vacating the conviction on the less seriously punishable offense.

Hall, 91 So.3d at 303 (citations omitted).

The defendants contend Hall is no longer applicable, because its holding is purportedly based on the "same evidence" test previously used by our courts to determine whether two crimes constitute the "same offense" for purposes of double jeopardy. See State v. Magee, 12-1084 (La. 8/25/14), 146 So.3d 193, 195 (per curiam ). That test was recently rejected by our supreme court in Frank, which recognized the " Blockburger " test as the only standard for determining whether multiple crimes are the same offense. See Frank , 234 So.3d at 33-34 ; Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Thus, the argument continues, by rejecting the same evidence test, Frank implicitly overruled Hall. We neither construe Hall so narrowly, nor Frank so broadly.

The holding in Hall is based on the premise that the double jeopardy clause prohibits cumulative punishments for the same offense, a risk that arises only if the defendant is convicted of more than one crime. See Hall, 91 So.3d at 303 ; see also State v. Staden, 14-0459 (La. App. 1 Cir. 9/24/14), 154 So.3d 579, 582, writ denied, 14-2254 (La. 6/5/15), 171 So.3d 945 ; State v. Ancalade, 14-0739 (La. App. 4 Cir. 1/14/15), 158 So.3d 891, 898, writ denied, 15-0375 (La. 1/8/16), 184 So.3d 691. Absent multiple convictions, the double jeopardy clause is not implicated. A determination that depends on the defendant's guilt or innocence of the charged offenses cannot be made prior to trial.

This rationale is not confined to the "same evidence" test, as indicated by the numerous Supreme Court cases cited in Hall that utilized the Blockburger test. See Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) ;

Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) ; Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). In one of those cases, Ohio v. Johnson, the Supreme Court recognized:

[B]efore respondent can ever be punished for the offenses of murder and aggravated robbery he will first have to be found guilty of those offenses. The trial court's dismissal of these more serious charges did more than simply prevent the imposition of cumulative punishments; it halted completely the proceedings that ultimately would have led to a verdict of guilt or innocence on these more serious charges. Presumably the trial court, in the event of a guilty verdict on the more serious offenses, will have to confront the question of cumulative punishments as a matter of state law, but because of that court's ruling preventing even the trial of the more serious offenses, that stage of the prosecution was never reached. While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting respondent for such multiple offenses in a single prosecution.

Ohio v. Johnson, 467 U.S. at 499-500, 104 S.Ct. at 2541. See also State v. Staden, 154 So.3d at 582 ("While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, it does not prohibit the state from prosecuting a defendant for such multiple offenses in a single prosecution.").

In Frank, consistent with the dictates of Hall, the double jeopardy analysis was made after the defendant was convicted of multiple crimes. See Frank, 234 So.3d at 29. The opinion does not cite Hall, much less suggest any modification or limitation to its holding.

We recognize Louisiana Code of Criminal Procedure article 594 provides double jeopardy "may be raised at any time." That language permits a motion before trial when a defendant has previously been tried, and the state institutes a second prosecution for the same offense. However, as Hall explained, when the state charges a defendant with crimes not previously prosecuted, a determination of double jeopardy cannot be made prior to trial. In that circumstance, there is no risk of double jeopardy until the defendant is convicted of more than one crime. In such cases a claim of double jeopardy must await resolution of the trial. See Hall, 91 So.3d at 303 ; State v. Brooks, 13-0540 (La. App. 4 Cir. 9/18/13), 124 So.3d 1129, 1140. The trial court erred in granting the motion. We vacate the trial court's ruling and remand for further proceedings.

VACATED AND REMANDED.

GUIDRY, J. concurs in the result

PETTIGREW, J. concurs

      A motion to quash is the proper mechanism for raising pretrial pleas that do not go to the merits of the charge. See State v. Byrd, 96-2302 (La. 3/13/98), 708 So.2d 401, 411, cert. denied, Peltier v. Louisiana, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998) ; see also La. Code Crim. Pro. art. 532(6). Although the defendants captioned their pleading as a motion to dismiss, we will treat it as a motion to quash.

      We note Louisiana Code of Criminal Procedure article 495.1 permits the trial court to order separate trials, grant a severance of offenses, or provide whatever other relief justice requires if it appears a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information. Although the defendants cited Article 495.1, they have not raised the issue of misjoinder or sought to sever the counts, nor was relief granted on that basis. Therefore, we limit our review to the claim of double jeopardy.


author: HIGGINBOTHAM, J.

text:
    STATE of Louisiana IN the INTEREST OF H.H.
    NO. 2018 KJ 0136
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 04, 2018
    Hillar C. Moore, III, District Attorney, Otha Curtis Nelson, Jr., Assistant District Attorney, Baton Rouge, LA, Attorneys for Plaintiff-Appellant, State of Louisiana
    Joseph K. Scott, III, Baton Rouge, LA, Attorney for Defendant-Appellee, H.H.
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

The sixteen-year-old juvenile, H. H., was alleged to be delinquent according to a petition filed by the State on October 16, 2015, pursuant to the Louisiana Children's Code. The petition was based upon the alleged commission of two counts of first degree rape (victims under the age of thirteen years), violations of Louisiana Revised Statutes 14:42A(4) (counts one and two); and two counts of indecent behavior with a juvenile, violations of Louisiana Revised Statutes 14:81A(1) (counts three and four). All four counts were alleged to have occurred on or about January 1, 2015, through August 19, 2015. The juvenile entered a denial to the allegations. Following an adjudication hearing, the juvenile was adjudicated delinquent on count three, indecent behavior with a juvenile, and the juvenile court dismissed counts one, two, and four. At the disposition hearing, the juvenile judge reprimanded and warned the juvenile. The State filed a motion to reconsider disposition, which the juvenile court denied. On appeal, the State raises two assignments of error.

FACTS

The adjudication hearing was not made part of the record on appeal. According to the predisposition report and petition, on August 19, 2015, the Zachary Police Department received a complaint that the juvenile had sexually abused two of his younger step-siblings on or about January 1, 2015, through August 19, 2015.

DISPOSITION

In two related assignments of error, the State argues that the juvenile court abused its discretion in rendering the disposition and that the disposition is illegally lenient. Specifically, the State contends that the disposition entered fails to take into consideration the circumstances of the case, the needs of the child, and the best interest of society.

A juvenile court judge is given wide discretion in the imposition of dispositions within statutory limits. See State in the Interest of S.D., 2014-439 (La. App. 3d Cir. 10/1/14), 149 So.3d 917, 921, writ denied, 2016-1953 (La. 11/15/16), 205 So.3d 907. After adjudicating a child to be delinquent, a court is required to impose the "least restrictive disposition" authorized by Articles 897 through 900 of the Louisiana Children's Code, "which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society." See La. Ch. Code art. 901B. Under Louisiana Children's Code article 897A(1), after adjudication of any felony-grade delinquent act other than those described in Article 897.1, the juvenile court may "[r]eprimand and warn the child and release him into the custody of his parents either unconditionally or subject to such terms and conditions as deemed in the best interests of the child and the public."

Pursuant to Louisiana Revised Statutes 14:81H(1), "[w]hoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both[.]"

At the disposition hearing, a predisposition report, psychosexual evaluation, and an addendum to the predisposition report were filed into evidence. According to the predisposition report, the juvenile participated in and successfully completed individual sex offender treatment provided by Dr. Romano and Associates. A letter dated June 13, 2016, from Dr. Romano stating that the juvenile consistently and promptly attended his sessions was attached to the predisposition report. Although he maintained his innocence, the juvenile remained actively engaged in treatment and was receptive to feedback. According to the letter, the juvenile's overall level of progress was acceptable, and he reached maximum therapeutic benefit. In explaining the juvenile's discharge, Dr. Romano specifically stated:

If an individual denies the offense, never committed the offense, or is not adjudicated for the offense, the therapist can only provide the necessary resources and tools to hopefully prevent recidivism or even a first time offense; the therapist is somewhat limited in what can be provided without one or more of these conditions being met. In summation, a therapist cannot retain a client indefinitely in treatment because he denies the offense.

The predisposition report noted that the juvenile's risk of reoffending was low, as was his risk for violence. The psychosexual evaluation concluded that because the juvenile cooperated and participated in treatment with Dr. Romano, additional treatment was not recommended. The recommendation of the juvenile's probation officer was that he be reprimanded, warned, and released to the custody of his father, who testified at the hearing and maintained that the juvenile was innocent.

In support of her recommendation, the probation officer explained that the juvenile completed treatment with Dr. Romano, tested negative for drugs since she began supervising him in September 2015, graduated from high school, and had not committed any subsequent delinquent acts. She further noted that the juvenile had not been suspended or expelled from school and that he was employed. In considering whether there was a need for correctional treatment, the probation officer stated that there was not. She also testified, "as far as we were concerned, [the juvenile] completed treatment and [there] was nothing else to supervise him with."

The victims' father testified that "slapping the [juvenile's] wrist" should not be an appropriate disposition because of what his children, the two victims, have "gone through." He asked for counseling for the juvenile "at the very least."

The juvenile court noted that it had been dealing with this "situation" since 2015 and that rehabilitation efforts began in 2016 and included sixteen sessions with Dr. Romano. The court noted that Dr. Romano discharged the juvenile and that the maximum level of benefits had been reached. Further, the evidence admitted at the disposition hearing indicated that the juvenile was at a low risk of violence or reoffending. The juvenile court concluded that there was not a need for continued supervision and accepted the recommendation of the Department of Juvenile Services. The juvenile court then reprimanded, warned, and released the juvenile. The State entered an objection to the disposition and subsequently filed a motion to reconsider the disposition.

The juvenile court was authorized to reprimand and warn the juvenile in the instant matter. See La. Ch. Code art. 897A(1). Based on our review of the record, we cannot say that the juvenile court abused its discretion in doing so or in denying the State's motion to reconsider the disposition. The juvenile spent approximately two years under the active supervision of the Department of Juvenile Services during which he engaged in sex offender treatment, received favorable psychosexual evaluations, completed high school, consistently tested negative for drugs, and obtained employment. Accordingly, the State's assignments of error are without merit.

ADJUDICATION AND DISPOSITION AFFIRMED.