text:
    STATE of Louisiana v. Henri Pierre LYLES
    NO. 18-KA-283
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Bridget A. Dinvaut, Justin B. LaCour
    COUNSEL FOR DEFENDANT/APPELLANT, HENRI PIERRE LYLES, Bertha M. Hillman
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and John J. Molaison, Jr.
   GRAVOIS, J.

Defendant, Henri Pierre Lyles, was convicted of aggravated battery. He was adjudicated a third felony offender and was sentenced to life imprisonment without the benefit of parole, probation, or suspension of sentence. He now appeals his sentence, arguing that he should have been sentenced as a second felony offender under the 2017 changes to La. R.S. 15:529.1, and, in the alternative, that his sentence is excessive. For the reasons that follow, we affirm defendant's habitual offender sentence and remand the matter for correction of the sentencing minute entry and the Uniform Commitment Order as set forth herein.

PROCEDURAL HISTORY

On March 13, 2015, the St. John the Baptist Parish District Attorney filed a bill of information charging defendant, Henri Pierre Lyles, with aggravated battery in violation of La. R.S. 14:34. After a jury trial on November 15-16, 2016, defendant was convicted of aggravated battery. See State v. Lyles , 17-405 (La. App. 5 Cir. 2/21/18), 239 So.3d 1055, 1056. On November 18, 2016, the State filed a habitual offender bill of information against defendant, alleging that he was a third felony offender with a 1991 predicate conviction of distribution of cocaine and a 2004 predicate conviction of manslaughter. The hearing on defendant's habitual offender bill was held on February 13, 2017. During the course of this hearing, the trial court sentenced defendant for the aggravated battery conviction to eight years imprisonment with the Department of Corrections and imposed a $1,000 fine. Id. After an evidentiary hearing on the habitual offender bill, the trial court found defendant to be a third felony offender and sentenced him to life imprisonment without the benefit of parole, probation or suspension of sentence in accordance with La. R.S. 15:529.1(A)(3)(b). Defendant filed a motion to reconsider his sentence, which the trial court denied. Defendant's original appeal followed. Id.

On original appeal, this Court found that the trial court failed to vacate defendant's original sentence for aggravated battery before imposing defendant's habitual offender sentence. As a result, it vacated defendant's habitual offender sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence as a third felony offender and remanded the matter for resentencing. See State v. Lyles , 239 So.3d at 1057.

According to this Court's directive, a resentencing hearing was held on March 12, 2018. Prior to the imposition of defendant's habitual offender sentence, defense counsel argued that defendant should be sentenced under the "new" habitual offender statute, which would reduce his sentencing range as a third felony offender. Defense counsel argued that current law was applicable since defendant's previous habitual offender sentence was vacated. The State responded that the Louisiana Supreme Court has held that the habitual offender law in effect at the time of the commission of the charged offense is applicable to a habitual offender. The trial court agreed with the State's position and stated that it would note the defense's objection. The trial court then vacated defendant's original sentence of eight years in the Department of Corrections, recognizing that the State had met its burden of proof during the habitual offender proceeding, and sentenced defendant to life imprisonment without the benefit of parole, probation, or suspension of sentence. On March 28, 2018, defendant filed a timely motion for appeal, which was granted on March 29, 2018.

FACTS

The facts set forth in this Court's published opinion are as follows:

Defendant and Imani Wilson met in 1992 and were involved in a relationship off and on for several years. In 2014, Ms. Wilson agreed to allow defendant to stay with her for a limited period of time. In January 2015, Ms. Wilson asked defendant to leave and offered to help him find work and a new residence. On February 1, 2015, defendant, Ms. Wilson, and her two (2) children from another relationship were at Ms. Wilson's home, and defendant informed Ms. Wilson that he would move out that week. That same day, while Ms. Wilson was in the kitchen cooking, defendant began staring at her and continued to do so for an extended period. Eventually, Ms. Wilson asked defendant why he was staring at her, and he did not respond. Because defendant continued to stare at her, she became nervous and warned her children who were home that they should call 9-1-1 if they heard anything.
After some time had passed, defendant began to approach Ms. Wilson and grabbed her by the throat with his left hand while simultaneously reaching for a knife with his other hand. Ms. Wilson pried defendant's fingers from her throat and ran from him. She fell and defendant held her down and grabbed her around the throat again. Defendant attempted to stab Ms. Wilson, and she tried to block the knife. She eventually blacked out and could not remember additional details. One of Ms. Wilson's children heard the commotion and called 9-1-1. The police arrived at the house before defendant was able to get away and arrested him for aggravated battery.

State v. Lyles , 239 So.3d at 1056.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant contends that the trial court erred in sentencing him as a third felony offender. Defendant argues that he should have been sentenced as a second felony offender under the 2017 legislative changes to La. R.S. 15:529.1, the habitual offender statute. According to defendant, the language of 2017 La. Acts No. 282, effective November 1, 2017, applies to him since his conviction did not become final until February 21, 2018, the date this Court rendered its decision in his first appeal. Defendant suggests that under these new provisions, he is a second felony offender since more than five years elapsed between the expiration of correctional supervision of his 1991 predicate conviction of distribution of cocaine and the commission of the underlying offense of aggravated battery. He asserts that the ameliorative provisions of Act 282 applied to his case, and as such, his mandatory sentence of life imprisonment would drastically be reduced as he would thus face a sentencing range of 3.3 to 20 years imprisonment.

The State responds that despite the language of Act 282, the legislature has recently clarified that the courts should apply the version of the habitual offender statute in effect at the time of the commission of the underlying offense. The State relies on the 2018 amendment to the habitual offender statute, subsection K, in support of this contention and argues that subsection K removes the prior confusion over the applicability of the 2017 amendments to those offenders whose cases were still on direct review.

In 2017, the habitual offender statute, La. R.S. 15:529.1, was amended by 2017 La. Acts No. 257, § 1 and 2017 La. Acts No. 282, § 1. Acts 257 and 282 both explicitly provide that their provisions "shall become effective November 1, 2017, and shall have prospective application only to offenders whose convictions became final on or after November 1, 2017." 2017 La. Acts 257, § 2; 2017 La. Acts 282, § 2. The relevant 2017 amendments to La. R.S. 15:529.1(A)(3)(b) removed persons with a current or prior felony that was a violation of the Uniform Controlled Dangerous Substance Law punishable for ten or more years from the group of persons subject to a life sentence as a third felony offender.

Defendant asserts that the 2017 version of the Habitual Offender Law should apply to his case. Defendant's underlying felony and one of his prior felonies, aggravated battery and manslaughter, respectively, are both crimes of violence. His 1991 predicate conviction of distribution of cocaine is a violation of the Uniform Controlled Dangerous Substance Law punishable by ten or more years. See La. R.S. 40:967(B). Under the prior version of La. R.S. 15:529.1(A)(3)(b), defendant was subject to a mandatory sentence of life imprisonment without benefits. Defendant argues, however, that with the application of 2017 amendments, including the amended cleansing periods set forth in La. R.S. 15:529.1(C)(1), he should have been adjudicated as a second felony offender rather than a third felony offender. If adjudicated as a second felony offender, defendant would have faced a sentencing range of 3.3 to 20 years imprisonment under La. R.S. 15:529.1(A)(1).

In the present matter, defendant was convicted of aggravated battery in violation of La. R.S. 14:34, and the State proved at trial that the crime occurred on February 1, 2015. See State v. Lyles , 239 So.3d at 1056. On November 18, 2016, the State filed the habitual offender bill alleging that defendant was a third felony offender. On February 13, 2017, defendant was adjudicated as a third felony offender and was sentenced to life imprisonment without benefits. Also on that date, defendant filed a motion for an appeal, stating no particular grounds, which was granted on February 16, 2017. On appeal, defendant did not challenge his conviction: he only assigned one error-that his habitual offender sentence was constitutionally excessive. This Court rendered its decision on February 21, 2018, finding that the trial court failed to vacate defendant's original sentence and remanded the matter for resentencing. See State v. Lyles , supra . Defendant did not file a writ application with the Louisiana Supreme Court. Thus, defendant's underlying conviction became final under La. C.Cr.P. art. 922 fourteen days after February 21, 2018, when the delay for applying for a rehearing expired.

While La. R.S. 15:529.1 was revised in 2017 by Acts 257 and 282, it is well settled law that habitual offender proceedings do not charge a separate crime, but merely constitute ancillary sentencing proceedings such that the punishment for a new conviction is enhanced, and jurisprudence, including that of this Court, has held that the sentence to be imposed is that in effect at the time of the commission of the offense. See State v. Parker , 03-924 (La. 4/14/04), 871 So.2d 317, 327 ("the punishment to be imposed on defendant, a habitual offender, is that provided by La. R.S. 15:529.1 as it existed on the date he committed the underlying offense."); State v. Sugasti , 01-3407 (La. 6/21/02), 820 So.2d 518, 522 ("Everyone is presumed to know the law, including the penalty provisions that apply. As such, those who engage in criminal activity must face the consequences of their actions, including the penalty provisions that apply as of the date of the offense."); State v. Williams , 03-571 (La. App. 5 Cir. 11/12/03), 862 So.2d 108, 119, writ denied , 04-0051 (La. 5/21/04), 874 So.2d 171 ("[T]his Court has consistently held that the date of the commission of the offense controls the penalty to be applied in multiple offender sentencing. From our earliest decisions on the subject until our more recent pronouncement, we have been unwavering on this issue.").

Additionally, on August 1, 2018, La. R.S. 15:529.1 was again amended and now includes subsection K. La. R.S. 15:529.1(K)(1) provides that, except for a condition not applicable to this case, "notwithstanding any provision of law to the contrary, the court shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed." 2018 La. Acts No. 542, § 1. Subsection (K)(2) provides:

The provisions of Subsection C of this Section as amended by Act Nos. 257 and 282 of the 2017 Regular Session of the Legislature, which provides for the amount of time that must elapse between the current and prior offense for the provisions of this Section to apply, shall apply to any bill of information filed pursuant to the provisions of this Section on or after November 1, 2017, accusing the person of a previous conviction.

In State v. Floyd , 52,183 (La. App. 2 Cir. 8/15/18), 254 So.3d 38, the defendant separately appealed his third felony habitual offender mandatory life sentence at hard labor without benefits and argued his enhanced sentence was excessive. On original appeal, the Second Circuit affirmed his underlying conviction on June 27, 2018. See State v. Floyd , 51,869 (La. App. 2 Cir. 6/27/18), 250 So.3d 1165. There, the defendant conceded that his offense occurred before the 2017 amendment, but he nonetheless urged the Second Circuit to lower his sentence. The court upheld the defendant's sentencing, stating:

This court is sensitive to the reality that Floyd will not benefit from the leniency of the 2017 amendment because his offense occurred before it took effect . However, the legislature specified that the amendment would have "prospective application only," and a subsequent amendment further clarified that courts "shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed." In other words, the legislature clearly stated its intent to diminish the penalties for certain habitual offenders, but equally clearly stated its intent not to reopen or relitigate cases that arose before the effective date. The jurisprudence also holds that the version of the Habitual Offender Law in effect at the time of the crime is the version that applies; amended provisions apply only to offenses committed after their effective dates . State v. Parker , supra ; State v. Casaday , supra [51,947 (La. App. 2 Cir. 4/11/18), 247 So. 3d 1057] ; State v. Barker , supra . We therefore cannot adopt Floyd's premise of using the 2017 amendment as a convenient metric to find his sentence excessive.

Id. at 43 (emphasis added).

Moreover, in Floyd , the court also stated that:

This court is aware of an unpublished opinion, State v. Purvis , 2017-1013 (La. App. 3 Cir. 4/18/18), 244 So.3d 496, [2018 WL 1834007], in which a divided Third Circuit applied the amended version of R.S. 15:529.1 to an offense that occurred in September 2015, over two years before the amendment took effect. This court would decline to follow Purvis , in light of the jurisprudence, but we consider it effectively abrogated by the 2018 enactment of R.S. 15:529.1(K)(1).

Id. at 43 n. 2.

In State v. Barker , 17-0469, --- So.3d ----, ----, 2018 WL 2426455, at *32-33, 2018 La. App. LEXIS 1098, at *87-89 (La. App. 4 Cir. 5/30/18), the Fourth Circuit held that the version of the Habitual Offender Law in effect at the time of the underlying offense was the correct law applicable to the defendant. In Barker , which was decided following the effective date of the 2017 amendments, the defendant asserted that the court erred in sentencing him under the habitual offender statute that was in effect at the time the fourth felony was committed and instead should have sentenced him under the 2017 version of the statute, which was over two years after the underlying offense occurred and four months after the defendant's habitual offender adjudication.

The Fourth Circuit disagreed with the defendant's assertion, finding that a defendant should be sentenced in accordance with the version of La. R.S. 15:529.1 in effect at the time of the commission of the charged offense. It referenced Parker , supra , where the Louisiana Supreme Court discussed the public policy behind applying ameliorative changes to the Habitual Offender Law:

[I]f we were to find a defendant's status as a second offender was fixed as of any date other than the commission of the offense, "it would be within the power of the district attorneys and the Attorney General, by delaying the filing of the charges and prosecution of the case, to fix the accused's status as a second offender at practically any time he desired." [ State v. ] Dreaux ] [, 205 La. 387] at 392, 17 So.2d [559] at 560 [ (1944) ]. Thus, we also found public policy dictated that defendant's habitual offender status be fixed as of the date of the commission of the crime since this allows defendant's own act to establish his status rather than leaving the matter in the discretion of government attorneys.

Id. at *32-33, 2018 La. App. LEXIS 1098, at *88. Thus, the Court found that the trial court correctly sentenced the defendant based on the time he committed the offenses in 2015 and applied the sentencing provision in effect at the time of the commission of the offenses. Id. at *33, 2018 La. App. LEXIS 1098, at *89.

Upon review, we rely on the well settled jurisprudence that the law in effect at the time of the offense is determinative of a defendant's punishment, including for habitual offender proceedings. See Parker , supra ; Sugasti , supra ; Williams , supra , 862 So.2d 108. Further, we find that by enacting subsection K, the legislature clarified its original intent that the date of commission of the underlying offense be used to determine the sentencing provision applicable to a habitual offender, except as otherwise explicitly provided in the statute. Therefore, after review, we find that the Habitual Offender Law in effect at the time of the commission of defendant's underlying offense of aggravated battery should be applied in determining defendant's habitual offender sentence, and the trial court did so correctly when imposing defendant's enhanced sentence of life imprisonment without benefits.

At the time of the instant offense on February 1, 2015, La. R.S. 14:34(B) provided, in pertinent part, that an offender who commits aggravated battery shall be punished by a fine of not more than five thousand dollars, imprisonment with or without hard labor for not more than ten years, or both.

Also at that time, La. R.S. 15:529.1(A)(3)(b) provided:

If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Accordingly, we find that the 2015 version of La. R.S. 15:529.1(A)(3)(b) is the sentencing provision applicable to defendant herein because his third felony (the aggravated battery conviction) and his predicate conviction of manslaughter are crimes of violence under La. R.S. 14:2(B)(5) and La. R.S. 14:2(B)(4), respectively. Additionally, defendant's 1991 conviction for distribution of cocaine in violation of La. R.S. 40:967(A) was a violation of the Uniform Controlled Dangerous Substance Law punishable by ten years of imprisonment or more. La. R.S. 40:967(B)(4). Under the habitual offender statute as it existed at the time of the commission of the underlying offense of aggravated battery, defendant was subject to an enhanced mandatory sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence. See La. R.S. 15:529.1(A)(3)(b). For the foregoing reasons, we find that the trial court correctly applied the Habitual Offender Law in effect in 2015 in sentencing defendant. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, defendant argues in the alternative that his sentence of life imprisonment is unconstitutionally excessive under State v. Dorthey , 623 So.2d 1276 (La. 1993), due to its gross disproportionality to the severity of the crime and because it results in a needless infliction of pain and suffering. He suggests that this case is an example of one of the primary reasons behind the escalating growth of Louisiana's industrial prison complex, and the weightiest penalties are not reserved for the most serious crimes or the most dangerous offenders. He contends that he showed remorse for the victim's injuries, and a downward departure is warranted under the facts of this case.

The State responds that defendant has not shown that his case is exceptional, warranting a downward departure from the mandatory minimum sentence under the Habitual Offender Law. It notes that defendant has a history of violent offenses, including the underlying offense of aggravated battery, and requests that this Court affirm defendant's enhanced sentence.

The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for unconstitutional excessiveness. State v. Francois , 17-471 (La. App. 5 Cir. 3/14/18), 242 So.3d 806, 819. The record reflects that although defendant orally objected to the sentence at the hearing on March 12, 2018, he failed to file a motion to reconsider sentence. On appeal, he now contends, despite the imposition of a mandatory life sentence, that the trial court should have considered the circumstances of his case to determine whether a downward departure was warranted based on his "exceptional" circumstances. By failing to raise these arguments in a motion to reconsider sentence, we find that defendant is limited to a bare review of his sentence for unconstitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it may be reviewed for unconstitutional excessiveness. State v. Harris , 17-303 (La. App. 5 Cir. 12/20/17), 235 So.3d 1354, 1376, writ denied , 18-0160 (La. 6/15/18), 257 So.3d 675, 2018 WL 6566972, 2018 La. LEXIS 1608. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson , 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622. The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. Id.

The Louisiana Supreme Court has recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for unconstitutional excessiveness. State v. Taylor , 06-839 (La. App. 5 Cir. 3/13/07), 956 So.2d 25, 27, writ denied , 06-0859 (La. 6/15/07), 958 So.2d 1179. When a trial court determines that the minimum sentence mandated by La. R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment," or that the sentence amounts to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime," the trial judge must reduce the sentence to one that would not be unconstitutionally excessive. Taylor , 956 So.2d at 27-28 ; State v. Douglas , 03-1266 (La. App. 5 Cir. 2/23/04), 868 So.2d 896, 900, writ denied , 04-0955 (La. 10/1/04), 883 So.2d 1006.

However, it is presumed that the mandatory minimum sentence under the Habitual Offender Law is constitutional. Francois , 242 So.3d at 820 ; Taylor , 956 So.2d at 28. In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is "exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case." Id.

Downward departures from the minimum sentence mandated by La. R.S. 15:529.1 should only occur in rare situations. When evaluating whether the defendant has met his burden, the trial court must be mindful of the goals of the Habitual Offender Law, which are to deter and punish recidivism. Taylor , 956 So.2d at 28. Compliance with sentencing guidelines pursuant to La. C.Cr.P. art. 894.1 is not required when the sentence imposed is statutorily prescribed under the Habitual Offender Law. Harris , 235 So.3d at 1377 ; State v. Jenkins , 07-586 (La. App. 5 Cir. 1/22/08), 977 So.2d 142, 148.

In the present matter, defendant was sentenced as a third felony offender under La. R.S. 15:529.1(A)(3)(b). As previously discussed, upon defendant's adjudication as a third felony offender, with the instant and one predicate conviction being crimes of violence, and one predicate conviction of violating the Uniform Controlled Dangerous Substance Law punishable by ten years imprisonment or more, defendant was subject to a mandatory life sentence without the benefit of parole, probation, or suspension of sentence. Defendant was sentenced accordingly.

Upon review, we find that defendant has failed to meet his burden of rebutting the presumption of constitutionality. Defendant here knew the victim for several decades, and the victim had allowed defendant to stay with her temporarily. Defendant became angry when the victim asked him to leave, after she offered to help the victim find another place to live and a job, and he grabbed the victim by her throat and choked her more than once as she tried to get away from him. Defendant attempted to stab the victim with a knife while her children were in the home, the victim blacked out, and one of her children eventually called 9-1-1 after hearing what was going on. The facts of this case fail to show that defendant showed any remorse, but rather, that the police arrived before defendant was able to get away from the house. Additionally, this Court has found that if the trial judge who imposed the sentence on a defendant's underlying conviction is the same judge who imposes the enhanced sentence in a habitual offender adjudication, that judge is deemed to have been aware of the nature of the crime for the underlying conviction. Harris , 235 So.3d 1354, 1377-78. Here, the same trial judge who presided over defendant's conviction and sentencing on the underlying offense was the same judge who presided over his adjudication and sentencing as a habitual offender, and who was thus aware that defendant committed aggravated battery upon the victim and of defendant's criminal history.

Further, defendant has a prior conviction of a crime of violence, manslaughter. Therefore, we find that the record fails to indicate that defendant is the type of offender contemplated by the Louisiana Supreme Court in Dorthey , supra , warranting a downward deviation from the mandatory sentence. Defendant has not demonstrated that a reduction from the mandatory sentence was warranted in this case. As such, we find that defendant's mandatory sentence of life imprisonment without the benefit of parole, probation, or suspension of sentence as a third felony offender was not excessive, and the trial court did not err in imposing the sentence. Accordingly, we affirm defendant's enhanced sentence. This assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990).

When defendant received an errors patent review upon his original appeal, a sentencing error was found and addressed by this Court, after which this Court remanded the case to the trial court for habitual offender resentencing. While defendant is not entitled to a second errors patent review of his underlying conviction and sentence, the record on appeal regarding defendant's habitual offender resentencing was reviewed. See State v. Wise , 14-378 (La. App. 5 Cir. 10/15/14), 182 So.3d 63, 79, writ denied , 14-2406 (La. 9/18/15), 178 So.3d 143 ; State v. Taylor , 01-452 (La. App. 5 Cir. 11/14/01), 802 So.2d 779, 783-784, writ denied , 01-3326 (La. 1/10/03), 834 So.2d 426.

The sentencing transcript indicates that the trial judge imposed a sentence on defendant of life imprisonment without the benefit of parole, probation, or suspension of sentence. The sentencing minute entry reflects that defendant received a sentence of "life." Therefore, the sentencing transcript and the minute entry fail to reflect that defendant's life sentence of imprisonment as a third felony offender was to be served at hard labor.

La. C.Cr.P. art. 879 requires a court to impose a determinate sentence. If the applicable sentencing statute allows discretion, the failure to indicate whether the sentence is to be served at hard labor is an impermissible indeterminate sentence. State v. Thomas , 15-759 (La. App. 5 Cir. 5/12/16), 192 So.3d 291, 309, writ denied , 16-1085 (La. 5/19/17), 219 So.3d 335. However, when the underlying statute requires the sentence to be served at hard labor, allowing no discretion to the trial judge, the error is harmless. State v. Stewart , 10-389 (La. App. 5 Cir. 5/10/11), 65 So.3d 771, 783-84, writ denied , 11-1245 (La. 1/20/12), 78 So.3d 140. Here, defendant was sentenced as a third felony offender, a sentence required to be served at hard labor. La. R.S. 15:529.1(G). Thus, because La. R.S. 15:529.1 affords the trial judge no discretion, the error was harmless, the sentence is not an impermissible indeterminate sentence, and no corrective action is necessary.

Next, we find that the Uniform Commitment Order (UCO) and the sentencing minute entry contain some inconsistencies with the transcript. First, the UCO incorrectly provides the district court number as "22015-CR-42", when the district court docket number actually is "2015-CR-42." Further, the UCO fails to indicate in the "Adjudication/Sentence" portion that defendant's sentence was a habitual offender sentence or that his life sentence was to be served without the benefit of parole, probation, or suspension of sentence. The sentencing minute entry merely reflects that defendant received a sentence of "life" and is silent as to the restrictions of benefits. Accordingly, we remand the matter for correction of the sentencing minute entry and the UCO in these aspects and further direct the Clerk of Court for the 40th Judicial District Court to transmit the original of the corrected commitment and UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections' legal department. See State v. Lyons , 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, writ denied , 14-481 (La. 11/7/14), 152 So.3d 170.

Finally, it is noted that following defendant's resentencing, the trial judge stated: "I'm going to give you those typical delays of two years to file a petition for post conviction relief post-sentencing." The sentencing minute entry provides that the trial court "acknowledge[d] defendant has a two (2) year prescriptive in which to file for post-conviction relief, that period to commence after judgment of conviction and sentence have become final." Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983).

It is well settled that if a trial court provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief. See State v. Neely , 08-707 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied , 09-0248 (La. 10/30/09), 21 So.3d 272. Accordingly, we advise defendant by way of this opinion that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.

CONCLUSION

For the foregoing reasons, defendant's habitual offender sentence is affirmed. The matter is remanded for correction of the sentencing minute entry and the Uniform Commitment Order as set forth herein.

AFFIRMED; REMANDED FOR CORRECTION OF SENTENCING MINUTE ENTRY AND UNIFORM COMMITMENT ORDER

      In its published opinion, this Court stated that defendant had a 1990 predicate conviction of distribution of cocaine. However, review of the habitual offender exhibits indicate that defendant pled guilty to distribution of cocaine on May 31, 1991 and that the offense occurred in October of 1990.

      According to the original habitual offender hearing, defendant received a sentence of five years of probation for his 1991 conviction for distribution of cocaine, which ended on May 21, 1996. Defendant committed the crime of manslaughter on September 30, 2003. Thus, applying the reduced cleansing period of five years, defendant's conviction of distribution of cocaine could not be used as a predicate offense for his habitual offender adjudication.

      La. C.Cr.P. art. 922(B) provides: "A judgment rendered by the supreme court or other appellate court becomes final when the delay for applying for a rehearing has expired and no application therefor has been made."

      In defendant's first appeal, this Court did not consider the merits of his assignment of error; its opinion decreed as follows: "HABITUAL OFFENDER SENTENCE VACATED; REMANDED FOR RESENTENCING." State v. Lyles , 239 So.3d at 1057. This Court has affirmed underlying convictions even when the defendants have only challenged their habitual offender proceedings on appeal and not their underlying convictions. See , e.g. , State v. Davis , 01-123 (La. App. 5 Cir. 7/30/01), 792 So.2d 126, 129-32 ; State v. Windham , 98-100 (La. App. 5 Cir. 5/27/98), 712 So.2d 1057, 1058-60, writ denied , 99-1110 (La. 6/4/99), 744 So.2d 627 ; State v. Balser , 96-443 (La. App. 5 Cir. 11/14/96), 694 So.2d 351, 352, 354. See also State v. Bell , 471 So.2d 1190, 1191, 1194 (La. App. 3rd Cir. 1985), writ denied , 85-1556 (La. 1985), 477 So.2d 97.

      The April 25, 2018 video of the House Committee on Administration of Criminal Justice where the proposed legislation of H.B. 253, eventually subsection K, was presented sheds light on the legislative intent of the 2018 amendment to La. R.S. 15:529.1. Representative Marino, who handled H.B. 253 on behalf of Representative Connick, indicated that it was brought on behalf of the Louisiana District Attorneys Association ("LDAA") to provide clarification to the 2017 changes of the Habitual Offender Law as the prior version did not specifically state when old or new Habitual Offender Law applied as to sentencing or calculation of the cleansing periods. Representative Marino clarified that the intended effect of the 2017 amendment was for the reduced cleansing periods to apply to any habitual offender bills filed on or after November 1, 2017, and habitual offender bills used prior to that date would use the previous cleansing periods. Jerry Fortunato spoke and indicated that this was the intention of the Justice Reinvestment Initiative ("JRI") legislation that the LDAA had participated in creating the previous year, and this was the original intention of the 2017 amendment. See Video of Hearing on H.B. 253 Before the H. Comm. on Administration of Justice, 2018 Reg. Sess., at 3:19 to 3:29 (La. April 25, 2018).

      In State v. Purvis , 17-1013 (La. App. 3 Cir. 4/18/18), 244 So.3d 496, a majority of the Third Circuit found that the 2017 version of the Habitual Offender Law applied to the defendant, who committed the underlying offense in 2015 and who was sentenced prior to November 1, 2017, because his underlying aggravated arson conviction would not become final until after November 1, 2017, due to his filing of a timely writ application in the Supreme Court.

      Floyd , supra , does not mention the Louisiana Supreme Court's decision in State v. Williams , 17-1753 (La. 6/15/18), 245 So.3d 1042 (per curiam ), where the Court granted the defendant's application to vacate his enhanced sentence for armed robbery and remanded for resentencing under 2017 La. Acts 282 after finding that the defendant's appeal was pending when the legislature amended the Habitual Offender Law with 2017 La. Acts 282. Significantly, it noted that the State conceded that the defendant was entitled to be resentenced in accordance with the legislative changes because his conviction did not become final until after November 1, 2017.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    Jared GUIDRY and Leigha Woods v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Ronald Chambers
    NO. 18-CA-275
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, JARED GUIDRY AND LEIGHA WOODS, Linda Gonzales
    COUNSEL FOR DEFENDANT/APPELLEE, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Adam P. Massey, Matthew D. Fraser, New Orleans, LA
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson
   CHAISSON, J.

In this case involving a rear-end automobile collision, Jared Guidry and Leigha Woods appeal the trial court's February 28, 2018 judgment sustaining an exception of no cause of action and dismissing State Farm Mutual Automobile Insurance Company ("State Farm") from this case. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On February 7, 2017, Mr. Guidry and Ms. Woods filed a petition for damages against Ronald Chambers and State Farm alleging that they are liable, jointly and/or in solido , for an August 26, 2016 automobile accident caused by Mr. Chambers colliding with the rear-end of a vehicle driven by Ms. Woods. As regarding State Farm, plaintiffs alleged:

Petitioner further shows that, at all times mentioned hereinabove, there was in full force and effect a policy of UM insurance issued by the Defendant, State Farm Mutual Automobile Insurance Company, under the terms and conditions of which said insurer agreed to provide uninsured/underinsured motorist coverage to the Plaintiff; that the evidence in this case will reflect that there is no primary insurance in favor of Defendant sufficient to satisfy the amount of damages sued on herein; therefore, Defendant is an uninsured/underinsured motorist pursuant to the terms of the policy of insurance issued by Defendant and pursuant to the Law of Louisiana; and, therefore, State Farm Mutual Automobile Insurance Company is a proper party Defendant herein.
Plaintiffs made no other allegations against State Farm.

In response to the petition, State Farm filed exceptions of prematurity and no cause of action in which it argued that plaintiffs had failed to present State Farm with a claim as required by the insurance agreement and that plaintiffs' petition failed to set forth any grievance against State Farm sounding in either tort or breach of contract. On June 20, 2017, following a hearing on the exceptions, the trial court rendered judgment denying the exception of prematurity, sustaining the exception of no cause of action, and ordering plaintiffs to amend their petition as allowed pursuant to La. C.C.P. art. 934 to allege the nature of their grievance with State Farm and to allege the particulars of their performance of their obligations under the insurance contract.

Plaintiffs amended their petition for damages with the addition of one sentence to the allegations against State Farm, as follows:

That on or about September 1, 2016, Plaintiffs notified State Farm Mutual Automobile Insurance Company of their injuries and UM claim, and have communicated verbally, through counsel, with representatives of State Farm Mutual Automobile Insurance Company regarding the facts of the accident and their injuries.

State Farm re-urged its exception of no cause of action arguing again that plaintiffs' amended petition fails to set forth a cognizable claim against State Farm. On February 28, 2018, following a hearing on the exception, the trial court sustained State Farm's exception of no cause of action and dismissed plaintiffs' suit with prejudice. It is from this judgment that plaintiffs now appeal.

DISCUSSION

The exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Khoobehi Props., LLC v. Baronne Dev. No. 2, L.L.C. , 16-506 (La. App. 5 Cir. 3/29/17), 216 So.3d 287, 297. The appellate court reviews a trial court's ruling sustaining an exception of no cause of action de novo because the exception raises a question of law and the court's decision is based solely on the sufficiency of the petition. Id. The peremptory exception of no cause of action is triable on the face of the pleadings, and, for purposes of resolving issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Id. Because Louisiana uses a system of fact pleading, a plaintiff is not required to plead a theory of recovery in his petition; however, mere conclusions of the plaintiff unsupported by facts will not set forth a cause of action. Id.

On appeal, plaintiffs argue that the trial court committed legal error by sustaining State Farm's exception of no cause of action because their amended petition alleged the required elements to establish a UM cause of action and there is no requirement for them to plead facts pertaining to their cooperation with State Farm to maintain a cause of action against them. In support of their argument, the plaintiffs point to La. R.S. 22:1295(1)(a)(i) and the Louisiana Supreme Court's holding in Benoit v. Allstate Insurance Co. , 773 So.2d 702, 705 (La. 2000).

La. R.S. 22:1295(1)(a)(i) states in pertinent part:

No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (1)(a)(ii) of this Section.

This statute mandates that all policies of automobile insurance contain UM coverage unless specifically waived by the insured. Contrary to plaintiffs' assertion, it does not create a private, statutory right of action against the insurance company.

In effect, plaintiffs argue that they may sue the UM insurer as one would sue a tortfeasor's insurer under the Louisiana Direct Action Statute, La. R.S. 22:1269, which expressly grants an injured person a right of direct action against an insurer (alone or jointly with the insured tortfeasor). However, the Louisiana Supreme Court has long held that the actions under the Uninsured Motorist Statute and the Direct Action Statute are not the same. In Booth v. Fireman's Fund Ins. Co. , 253 La. 521, 527-8, 218 So.2d 580 (1968), the Court stated:

[T]he intent of our uninsured motorist statute and the policy endorsement issued thereunder is to afford protection to the insured when they become the innocent victims of the negligence of uninsured motorists. The uninsured motorist provision closely resembles the policies of insurance which reimburse an insured for medical expenses or property damage resulting from an automobile accident. This action cannot be compared to that arising under our direct action statute by which suit may be brought directly against the insurer (indemnifier) of the tort feasor [sic] without making the tort feasor [sic] a defendant. The uninsured motorist provision is not insurance or indemnification for the uninsured motorist, and the insurer does not stand in the shoes of the uninsured motorist who is the tort feasor [sic]. (Emphasis added.)

The UM insurer's obligation arises solely from the insuring agreement. Youngs v. Champagne , 348 So.2d 126 (La. App. 4 Cir. 1977), ("The liability of an uninsured motorist carrier is based solely on the contract of insurance between the carrier and its insured, and the insured is the only party possessing the right to make a claim under his uninsured motorist provision. To hold otherwise would have the effect of converting the uninsured motorist provision into liability insurance covering the uninsured motorist.") Accordingly, plaintiffs' action against the UM insurer must be based upon a breach of the insuring agreement.

Plaintiffs also rely on the Louisiana Supreme Court's holding in Benoit v. Allstate Ins. Co. , supra , in support of their cause of action against State Farm. In Benoit , the Court considered a suit brought by an injured plaintiff against his UM insurer after the plaintiff had already executed a settlement releasing his claims against the tortfeasor and the tortfeasor's insurer. However, the language in Benoit supports the finding that plaintiffs' cause of action against their UM insurer is based in contract: "we note that the plaintiff's cause of action against Allstate was based not only on the accident that gave rise to the plaintiff's claim against the tortfeasor and his liability insurer, but also on the essential additional fact that Allstate issued UM coverage to plaintiff and agreed to pay damages when the tortfeasor was uninsured or underinsured. " 773 So.2d at 708. (Emphasis added.)

Plaintiffs also argue that they may maintain the same cause of action against State Farm as their cause of action against Mr. Chambers because the UM insurer and tortfeasor are solidary obligors. See Bollinger v. Allstate Ins. Co. , 433 So.2d 411 (La. App. 4 Cir. 1983). However, the idea that the tortfeasor and UM insurer may be solidary obligors is not inconsistent with the understanding that an insured's cause of action against her UM carrier is based in breach of contract. As the Louisiana Supreme Court has stated, "[b]y the effect of law and the delivery or issuance for delivery of automobile liability insurance, both the uninsured motorist carrier and the tortfeasor are obliged to the same thing. The fact that the uninsured motorist carrier is bound by the combined effect of the tortfeasor's wrongful act, the uninsured motorist statute, and the carrier's delivery or issuance for delivery of automobile liability insurance, while the tortfeasor is obliged merely because of his delict, does not prevent them from being obliged to the same thing. An obligation may be in solido , requiring that obligors be obliged to the same thing, even though the obligations of the obligors arise from separate acts or by different reasons." Johnson v. Fireman's Fund Ins. Co. , 425 So.2d 224, 227-8 (La. 1982) (citing Hoefly v. Gov't Emps. Ins. Co. , 418 So.2d 575 (La. 1982) ).

Plaintiffs are correct in stating that there is no statutory requirement that an insured under a UM policy must first present a claim to his carrier before filing suit against that carrier. This is because an insured's rights against his UM carrier arise from the insurance policy. An insurance policy is a contract and, as with all other contracts, it constitutes the law between the parties. S. Cent. Bell Tel. Co. v. Ka-Jon Food Stores , 93-2926 (La. 5/24/94), 644 So.2d 357, 360 ; Le Blanc v. Davis , 254 La. 439, 444, 223 So.2d 862 (1969). Therefore, in order to state a cause of action against his UM carrier, an insured must allege in his petition that his UM carrier has somehow breached the insuring agreement.

In this case, plaintiffs did not allege in their petition that State Farm has denied their claims or has in any other way failed to fulfill its obligations under the insuring agreement. Consequently, upon our de novo review, after examining the petition, we find that plaintiffs have failed to allege facts sufficient to state a cause of action against State Farm for breach of their UM insuring agreement. Accordingly, and with the understanding that plaintiffs have already been provided with an opportunity to amend their petition as required under La. C.C.P. art. 934, we affirm the judgment of the trial court sustaining State Farm's exception of no cause of action.

CONCLUSION

Having found that plaintiffs have failed to allege facts sufficient to state a cause of action against State Farm, the judgment of the trial court is affirmed.

AFFIRMED

JOHNSON, J., DISSENTS WITH REASONS

I respectfully dissent. As recognized by the majority, Louisiana is a fact pleading state. "[A]n exception of no cause of action must be overruled unless the allegations in the petition exclude every reasonable hypothesis other than the premise on which the defense is based, i.e., unless the plaintiff has no cause of action under any evidence admissible under the pleadings." [Emphasis in original.] Villareal v. 6494 Homes, LLC , 48,302 (La. App. 2 Cir. 8/7/13), 121 So.3d 1246, 1250. An exception of no cause of action should be sustained only when it appears beyond doubt that the plaintiff cannot prove any set of facts in support of any claim which would entitle him to relief. Id.

Here, Plaintiffs alleged they were injured as the result of an automobile accident. They alleged there was a UM policy in effect at the time of the accident wherein State Farm, as the UM insurer, agreed to provide UM coverage to Plaintiff. Plaintiffs further alleged that Defendant, Ronald Chambers, is an uninsured motorist and, therefore, there is no primary insurance available to satisfy the damages sued upon. Under the facts alleged in the petition, there was an accident, there were damages, the tortfeasor was uninsured, and the tort victim had UM coverage. In my opinion, under these facts, a cause of action has been stated - there is a remedy under the law for recovery of damages by an insured with UM coverage who has been injured in an accident with an uninsured tortfeasor.

I find that the arguments of State Farm in support of its exception of no cause of action - namely that Plaintiffs have failed to comply with their contractual obligations under the terms of the policy and, thus, the provisions for coverage under the UM policy have not been triggered - are only defenses to the suit and do not demonstrate the failure of Plaintiffs to state a cause of action. See Wonycott v. Wonycott , 579 So.2d 506, 508 (La. App. 4th Cir. 1991) ("Contrary factual assertions are considered defenses which must be tried on the merits."). Critical to State Farm's arguments is the reference to the contract providing UM coverage which sets forth each party's obligations - an issue which necessarily go to the merits of whether Plaintiffs are owed any damages under the terms of the UM policy.

Courts should construe pleadings so as to achieve substantial justice in order to reach the truth and should avoid the application of harsh, technical rules of pleading. Gereighty v. Domingue , 17-339 (La. App. 5 Cir. 5/30/18), 249 So.3d 1016, 1032. In my opinion, Plaintiffs have stated a cause of action. The petition alleges that a contract provides coverage for damages caused by an underlying tort. Reasons why State Farm as the UM carrier may not be liable go directly to its defenses to the lawsuit and not to whether a cause of action has been stated. Therefore, I would reverse the ruling of the trial court and overrule State Farm's exception of no cause of action.

      According to the petition, Mr. Guidry was a passenger in the car being driven by Ms. Woods at the time of the accident.

      The petition fails to state to whom the State Farm insurance policy was issued.

      This was done by filing a Memorandum in Support of Exception of No Cause of Action and a Motion to Set the Exception of No Cause of Action, rather than refiling the exception.

      While the judgment purports to dismiss the suit with prejudice, we note that the plaintiffs' tort claims against Mr. Chambers, which were not included in State Farm's exception of no cause of action, are still outstanding. The February 28, 2018 judgment is a partial final judgment appealable under La. C.C.P. art. 1915(A)(1).

      La. R.S. 22:1269(B)(1) states, "[t]he injured person ... shall have a right of direct action against the insurer within the terms and limits of the policy; and, such an action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido ..."

      See also Kellis v. Farber , 523 So.2d 843, 848 (La. 1988), ("[A]n action by an insured based on his own uninsured motorist policy cannot be compared to that arising under the direct action statute which gives the victim of tortious conduct of an insured the right to proceed directly against the insurer of the tortfeasor").

      As previously noted, it is unclear from the face of the petition to whom State Farm issued the insurance policy. If Mr. Guidry, the car's passenger, is not an insured party as defined by the policy, it is possible that he has no right of action against State Farm. Further analysis of this is pretermitted by our discussion below.

      Because of the procedural posture of the case, which did not involve an exception of no cause of action, but rather a matter of statutory interpretation, the precise allegations of the plaintiff's petition against Allstate are unclear.

      As pointed out by the majority, it is unclear to whom the UM policy was allegedly issued - Ms. Woods or Mr. Guidry.


author: GRAVOIS, J.

text:
    Todd M. VILLARRUBIA v. Heather G. VILLARRUBIA
    NO. 18-CA-430
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, TODD M. VILLARRUBIA, Robert C. Lowe, Suzette M. Smith, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, HEATHER G. VILLARRUBIA, Steven J. Lane, John S. Creevy, Alexandra E. Faia, New Orleans
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson
   GRAVOIS, J.

In this community property partition suit between former spouses Heather Grace Villarrubia and Todd Villarrubia, Todd suspensively appeals a trial court judgment rendered on April 10, 2018 and amended on June 13, 2018, finding that the contested "BP fees" were community property and awarding Heather $782,766.83 as her one-half interest in the "BP fees." For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2001, prior to the parties' marriage in 2002, Todd, an attorney, formed a professional law corporation, Todd M. Villarrubia, PLC d/b/a Wealth Planning Law Group ("the PLC"), a Subchapter S corporation, for his law practice, of which he was 100 per cent owner, the sole member, and where he was employed throughout the marriage and after his filing of the petition for divorce. Following the BP Deepwater Horizon oil spill, the PLC entered into contingency fee contracts for the adjustment of BP claims of many of the PLC's clients. Todd performed work on the BP files both before and after the filing of the petition for divorce for which settlement proceeds were mostly received after the petition for divorce was filed. In the community property partition proceeding, a dispute arose concerning the amount of Todd's compensation for the work he performed on the BP contracts during the time of the marriage, which Heather claimed was community property and for which she sought her statutory share of the BP settlement proceeds held by the PLC. Heather also claimed that the value of the PLC was enhanced, during the marriage, by the uncompensated or undercompensated labor of Todd, which could form the basis of a reimbursement claim in her favor pursuant to La. C.C. art. 2368. Todd claimed that he was compensated during the community by a salary and that all fees received from the contingency fee contracts were the property of the PLC, a juridical entity separate from him which is also his separate property.

On December 8, 2014, the PLC intervened in the community property partition proceeding, claiming that intervention was necessary to protect the PLC's rights and property, noting that discovery had been propounded by Heather to Todd individually, seeking records and information from the PLC regarding the BP contracts, as well as other contingency fee contracts, and information relative to Todd's income and compensation during the marriage. The PLC claimed ownership of all of the BP fees being held in its IOLTA account. All other matters in the partition suit were resolved by a consent judgment dated March, 29, 2016. In that judgment, however, the claims regarding "the valuation, enhancement and/or reimbursement claims affecting or relating to the Professional Law Corporation, including but not limited to any BP or Deepwater Horizon claims" were expressly reserved.

Following ongoing discovery, on November 17, 2017, Heather reurged exceptions of no right of action and no cause of action to the PLC's intervention. Her exceptions were granted on January 22, 2018, and ultimately the PLC was dismissed from the suit. The partition trial on the BP claims occurred on January 29, 2018, with the trial court issuing a written judgment on April 10, 2018, finding the "BP fees" to be community property, and awarding Heather $782,766.83 as her one-half interest in the "BP fees."

Todd filed a motion for a new trial, arguing that the trial court erred in not taking into account the PLC's overhead and taxes, and attaching documentary evidence generated from the PLC's business records regarding those claimed offsets. In a judgment issued on June 13, 2018, the trial court denied the motion for a new trial except to amend the April 10, 2018 judgment to order that Todd personally pay Heather within five business days of the amended judgment. Todd timely filed a suspensive appeal.

On appeal, Todd assigns two errors of the trial court. First, he argues that the trial court legally erred in determining that the BP fees paid exclusively to a separately owned entity, the PLC, after the community terminated, for work performed on contingency fee contracts solely owned by the PLC, are community property. Second, he argues that the trial court legally erred in awarding Heather $782,766.83 as her one-half interest in the BP fees earned by Todd during the existence of the community without consideration of income taxes and the overhead incurred to produce those fees.

ANALYSIS

The trial court has broad discretion in adjudicating issues raised by partition of the community and is afforded great latitude in arriving at an equitable distribution of assets between spouses. McLaughlin v. McLaughlin , 17-645 (La. App. 5 Cir. 5/16/18), 247 So.3d 1105, 1111, citing Vedros v. Vedros , 16-735 (La. App. 5 Cir. 10/25/17), 229 So.3d 677, 680. The allocation or assignment of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Id. Factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. McLaughlin v. McLaughlin , 247 So.3d at 1111. The trial court's findings based on determinations regarding the credibility of witnesses are undoubtedly entitled to great deference. Rosell v. ESCO , 549 So.2d 840, 844-45 (La. 1989).

ASSIGNMENT OF ERROR NO. ONE

In his first assignment of error, Todd argues that the trial court erred in determining that the BP fees were community property. He argues that because all of the BP contracts were between the PLC and its clients, they are property of the PLC; therefore, the fees received by the PLC in settlement of those claims also belong to the PLC and cannot be considered assets of the former community. He argues that all of the BP fees received by the PLC prior to termination of the community were distributed before the community property regime terminated, but in the event there had been any undistributed BP fees, those fees would remain property of the PLC until such time as they were distributed and would not be considered property of Todd until that time. He also argues that the trial court's reliance on Due v. Due , 342 So.2d 161 (La. 1977), which the court cited in its reasons for judgment, was error.

To the extent that a right to receive proceeds derives from a spouse's labor and industry during the existence of the community, that right is a community asset, even if the proceeds are received after dissolution of the community. La. C.C. arts. 2338 and 2369.2 ; Delahaye v. Delahaye , 04-0310 (La. App. 1 Cir. 12/30/04), 936 So.2d 822, 824.

At the trial of this matter, Heather presented evidence of the firm's receipt of BP fees through the testimony of Antonio Cino. Mr. Cino testified that he was an accountant and was hired by Todd to be the PLC's comptroller in 2012. As comptroller, he was responsible for managing the PLC's staff, human resources, employee benefits, preparation of the PLC's financial statements, all billing processes of the firm, receipts and accounts payable, preparing monthly closing reports and year-end reports, and coordination of the firm's tax returns with the firm's CPA. Mr. Cino testified that he was responsible for accounting and settlement when fees came into the firm, including the BP fees, and that he would prepare the settlement statements given to clients to show how the firm arrived at the clients' net payouts.

The evidence introduced at trial showed that the BP contracts were entered into during the marriage and that Todd performed work on the BP contracts both during the marriage and after he filed for divorce. The evidence also showed that the PLC received almost all of the BP settlement proceeds after Todd filed for divorce.

Working off of figures that the parties stipulated to in a joint pre-trial order, Mr. Cino testified that the PLC received the net sum of $2,921,270.76 for work on the BP files. This amount represented legal fees due to the firm, not gross settlement amounts, Mr. Cino testified, as this figure was calculated after all clients had been paid their settlements. Mr. Cino testified that none of the paralegals at the PLC who worked on BP files had a right to share in the BP fees, as they were paid by salary, nor was there anyone working for the PLC on any contingency basis entitled to a percentage of the BP fees. He testified that all staff salaries had already been paid, as well as any co-counsel fees due to other lawyers.

Mr. Cino testified that the total number of hours Todd worked on the BP files prior to the filing of the petition for divorce was 374.6 hours, and the number of hours Todd worked on the BP files after the petition for divorce was filed was 324.4 hours, for a total of 53.590844 per cent of Todd's time having been worked on the BP cases prior to the end of the community. This figure was generated from the PLC's operating and accounting software program. Applying that percentage to the $2,921,270.76 received in BP fees yielded the figure of $1,565,533.66. Dividing that figure in half, as per La. C.C. art. 2369.2, Heather claimed that her portion of the BP fees amounted to $782,766.83, which is the amount ultimately awarded to her in the trial court judgment under review.

In response, Todd argues that Heather did not carry her burden of proof that the PLC increased in value during the existence of the community as a result of his uncompensated labor or industry, and thus she did not prove her entitlement for reimbursement under La. C.C. art. 2368. However, we find that the issue adjudicated by the trial court at the January 29, 2018 trial was the community's share of Todd's compensation for his work on the BP files during the marriage, not an Article 2368 reimbursement claim for the PLC's increased value.

Todd also argues in brief that the trial court's judgment was in error because the BP contracts were the property of the PLC as they were entered into between the PLC and its clients. He argues that the trial court erred in relying on Due v. Due , supra , in its reasons for judgment. Due concerned a discovery dispute in a community property partition proceeding between a wife and her husband, an attorney. It held that "whatever the theoretical nature of the right a contingent fee contract creates in the husband a patrimonial asset, i.e. (in ordinary language) 'property', which is acquired by him during the marriage, Article 2334, and which (to the extent that his labor and industry contribute during the marriage, Article 2402) is an asset of the community existing between his wife and himself at the time of its dissolution, Article 2405." Due v. Due , 342 So.2d at 163-64. It appears, however, that the Due contracts were directly between Mr. Due and his clients, unlike the contracts in this case between the PLC and its clients.

Heather did not dispute, however, that the contracts themselves were the property of the PLC, and that the PLC was Todd's separate property. The issue before the trial court was Todd's compensation for his work performed on the BP contracts prior to termination of the community relative to the net amount of BP fees the PLC received. Todd conflates, in brief, the ownership of the contracts and the fees that they generated. He claims that because the contracts were assets of the PLC, Due requires the conclusion the fees that they generated were also assets of the PLC, and not his own property. This conclusion, though, is not supported by Due . The Court in Due suggested that in due course of the partition proceedings, the amount due to Mr. Due on each contingency fee contract attributable to work he performed prior to the termination of the community could be determined without undue difficulty, upon conclusion or settlement of each case. Due v. Due , 342 So.2d at 167, n 5.

The Due court went on to consider the implications for the valuation of Mr. Due's law partnership: "As to an ancillary point, we should note that the court of appeal correctly held that any contingent fee contracts which are the property of the defendant's law partnership cannot be considered as assets of the community. The partnership is a separate entity. However, the husband's interest in the partnership is, to the extent acquired during the marriage, a community asset the value of which should be included in the inventory." Due v. Due , 342 So.2d at 166. Pertinent to our application of Due to this case, inherent in a partnership is the presence of other partners who also have ownership interests in the partnership assets and the revenue. In the instant case, though there is a separate juridical entity, there is no partnership; Todd is the sole owner of the PLC. No other owners or members existed to assert rights to the assets or their revenue.

Mr. Cino testified that after a client's settlement was disbursed, an IOLTA check would be cut to the PLC for its portion of the fees. Mr. Cino agreed that Todd, as the only member of the PLC and its 100 per cent owner, had sole decision-making authority on what to do with that money. As noted above, Mr. Cino testified that no one else at the PLC, nor any outside counsel, had any right to receive a portion of the BP fees. Evidence at trial showed that Todd had used the operating account of the PLC on occasion to pay personal expenses, and also had Mr. Cino distribute dividends to him from the operating account, at times of Todd's choosing. The evidence also showed that the PLC did not normally retain large amounts of money in its accounts. Thus, the evidence showed that as the sole member and 100 per cent owner of the PLC, no one else had a right to the remainder of the BP fees other than Todd. Accordingly, the trial court correctly concluded that the net BP fees were in fact compensation to Todd for his work performed on the BP files.

Finally, we consider Todd's contention that the trial court erred, in its reasons for judgment, by declaring that he and his PLC were "one and the same." We agree with appellant that the evidence was clear that the PLC was a distinct legal entity from Todd, and that the record is equally clear that Heather did not contest this fact. The trial court also affirmed this fact repeatedly throughout the litigation. It appears to this Court that the trial court's statement in its reasons for judgment was merely a poorly-worded recognition that at the end of the day, as sole member and 100 per cent owner of the PLC, a subchapter S corporation, Todd had sole right to all of the net BP fees to use and distribute as he chose, as evidence showed he had done in the past with other revenue.

Accordingly, the evidence at trial supported the trial court's conclusion that the net BP fees were in fact compensation to Todd for work he performed on those files, and thus were partly community property subject to partition. We find no manifest error in the trial court's conclusion that the portion of the BP fees attributable to the work Todd performed on the BP files before he filed for divorce was community property subject to partition. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. TWO

In his second assignment of error, Todd argues alternatively that the trial court erred in finding that Heather was owed the particular amount of $782,766.83, when the court did not consider the PLC's overhead costs of producing those fees or the tax implications that could potentially reduce the amount of his income from the BP cases.

Heather responds in brief that at trial, Todd failed to present any evidence whatsoever of overhead, taxes, or any other evidence tending to show that this amount should be reduced in any way. She also notes that at trial, Todd did not present the trial court with any alternative formula to calculate the community property portion of the fees, despite objecting to her attorney's calculation during the testimony of Mr. Cino.

Todd did not, in fact, introduce any evidence at the trial regarding offset for taxes and overhead, which are defenses to Heather's monetary claims, that he now raises on appeal. In his motion for a new trial, Todd attached evidence of the firm's overheard costs and other deductions he claimed should have been made to the $782,766.83 figure. Heather filed a motion to strike exhibits one through seven attached to Todd's motion for a new trial, arguing that the attachments were improper as this evidence could have been, but was not introduced at trial. The trial court granted the motion to strike regarding exhibits one through seven, and also granted a motion to strike any arguments relying on those exhibits. The trial court then denied the motion for a new trial, finding that Todd had not been prevented from putting on his defenses at trial and had not been prohibited from introducing any evidence, including much of the evidence he then attached to his motion for a new trial, nor had he proffered any evidence at trial.

Once Heather established an amount she claimed was her community property share of the BP fees, Todd had the burden of proof to present evidence to rebut that figure if he disagreed. He failed to present any evidence at trial rebutting that figure, except for his uncorroborated testimony estimating that the PLC's "overhead" expenses historically amounted to around 61-68 per cent of gross revenue, and that his taxes were effectively 50-60 per cent of net profit. The trial court, however, declined to credit his testimony in this regard. The trial court found that Todd's credibility was lacking regarding other business practices of the PLC. Specifically, evidence at trial revealed obvious inaccuracies and misrepresentations in the PLC's internal business records and tax returns. For instance, the PLC listed Heather as an employee from 2002 to 2013, which Todd admitted was untrue. Other business records of the PLC showed that the PLC listed Heather employed as an administrative marketing assistant, and that she had worked 2,080 hours for the firm, neither of which were true, he admitted at trial.

Accordingly, we find that the trial court did not err in awarding Heather $782,766.83 as her one-half interest in the BP fees earned by Todd during the existence of the community without deducting income taxes and/or overhead allegedly incurred to produce those fees. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment under review on appeal is affirmed. All costs of this appeal are taxed to appellant.

AFFIRMED

      Heather does not dispute that the PLC is Todd's separate property.

      IOLTA stands for "Interest on Lawyers' Trust Accounts."

      The PLC appealed that judgment. The appeal, Villarrubia v. Villarrubia , 13-CA-320, was considered by this Court on the same docket as the instant case. In a separate opinion rendered this day, this Court affirmed the judgment granting Heather's exceptions of no cause of action and no right of action and dismissing the intervention of the PLC.

      Mr. Cino held that full-time position until 2014, when he became the firm's virtual comptroller, a part-time position. He left the firm briefly in 2015, but returned in November 2015 to the same comptroller duties.

      The BP fees received during the marriage were distributed prior to termination of the community and are not at issue herein.

      The particular numbers were established in the joint pre-trial order filed on January 26, 2018. The record shows that these fees were received over the course of several years, beginning after the termination of the community in 2014. In their Joint Pre-Trial Order, the parties stipulated, among other things, that the PLC received at least $21,031.28 in BP fees in 2015, at least $2,681,898.98 in BP fees in 2016, and at least $218,340.50 in BP fees in 2017.

      Appeals are taken from judgments, not reasons for judgment. Wooley v. Lucksinger , 09-0571 (La. 4/1/11), 61 So.3d 507, 572. A trial court's reasons for judgment, while elucidating the trial court's thought process, are not legally binding on higher courts, who may affirm a judgment for different reasons.

      This Court does not agree with the trial court's interpretation of Due to hold that a contingency fee contract cannot be between a juridical entity and a client. However, the record contains no support for appellant's contention that the trial court's misapplication of Due in this regard interdicted the "fact finding" process.

      Todd testified that the BP fees remained in the IOLTA account, instead of being transferred to operating accounts, per the advice of the PLC's attorney because of this pending litigation.

      See , 2 La. Prac. Divorce § 9:37, which states that "as of now, undistributed income of a pass-through entity that is separate is separate unless the income is actually made available to the owner spouse so that it can be withdrawn at any time for any purpose." (Citations omitted.)

      At the hearing on the motion for a new trial, the trial judge noted that much of the evidence Todd attached to the motion in an attempt to rebut Heather's figures was known to Todd prior to trial as it was produced from the PLC's business records from years preceding the 2018 trial. She further noted that Todd had not attempted to introduce such evidence at the trial, nor had it been produced in discovery or listed on pretrial orders.

      Though Todd's trial testimony regarding overhead and taxes was uncontroverted, it was also uncorroborated by any documentary evidence at trial.

      At the hearing on Todd's motion for a new trial, the judge specifically found Todd's trial testimony to have lacked credibility.

      Todd testified that Heather was listed as an employee of the PLC upon the advice of his CPA, and that he was advised that such was a common practice.

      Todd and Mr. Cino testified that certain financial advantages (tax and retirement) accrued to the PLC and the Villarrubias by claiming Heather was an employee.


text:
    STATE of Louisiana v. Tory N. CLARK
    NO. 18-KA-519
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Thomas J. Butler
    COUNSEL FOR DEFENDANT/APPELLANT, TORY N. CLARK, Bruce G. Whittaker
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson
   GRAVOIS, J.

This is defendant Tory N. Clark's second appeal. On original appeal, this Court vacated defendant's sentence and remanded the matter for the trial court to rule on defendant's post-trial motions, and if denied, to resentence defendant. For the following reasons, we find that defendant's request for an out-of-time appeal was untimely. Accordingly, defendant's appeal is dismissed as untimely.

PROCEDURAL HISTORY

On September 30, 2010, a Jefferson Parish Grand Jury indicted defendant, Tory N. Clark, with the second degree murder of Terrance Augustine in violation of La. R.S. 14:30.1. Defendant was arraigned on October 4, 2010 and pled not guilty. On July 17, 2012, defendant's motions to suppress statement, identification, and evidence were denied after a hearing. On January 27-30, 2015, the case was tried before a twelve-person jury that unanimously found defendant guilty as charged.

On February 11, 2015, defendant filed a timely motion for post-verdict judgment of acquittal. On that same date, he also filed a timely motion for appeal that was granted the next day. On April 2, 2015, defendant filed a motion for a new trial. On that same date, defendant's motion for post-verdict judgment of acquittal and motion for a new trial were denied. Also on April 2, 2015, a sentencing hearing was held pursuant to La. C.Cr.P. art. 878.1, after which the trial judge took the matter under advisement. On that same date, defense counsel filed a "Motion to Withdraw as Counsel and Appoint the Louisiana Appellate Project" that was granted that day. On April 14, 2015, the trial judge sentenced defendant to life imprisonment with eligibility for parole after thirty-five years.

In his first appeal, this Court pretermitted discussion of defendant's assignments of error after finding that after the trial court granted defendant's motion for appeal on February 12, 2015, the trial court was divested of jurisdiction to sentence defendant or to rule on defendant's post-trial motions. In accordance with State v. Johnson , 13-75 (La. App. 5 Cir. 10/9/13), 128 So.3d 325, and the reasoning set forth therein, this Court vacated defendant's sentence and remanded the matter to the trial court so that it could rule on defendant's post-trial motions, and if denied, to resentence defendant. Further, this Court found that once defendant had been resentenced, he had "the right to appeal his conviction and sentence." State v. Clark , 15-357 (La. App. 5 Cir. 11/19/15), 180 So.3d 602.

On February 29, 2016, on remand, the trial court denied the motion for post-verdict judgment of acquittal and the motion for a new trial after a hearing. Afterwards, on that same date, defendant waived sentencing delays, and the trial court sentenced defendant to life imprisonment and informed him that he would be eligible for parole after the first thirty-five years of the sentence.

On June 12, 2018, defendant filed a Motion for Out of Time Appeal that was granted on June 14, 2018.

TIMELINESS OF THE APPEAL

Defendant's appeal is untimely. The delays for moving for an appeal of criminal convictions and sentences are found in La. C.Cr.P. art. 914, which provides that a motion for an appeal in a criminal matter must be made no later than "[t]hirty days after the rendition of the judgment or ruling from which the appeal is taken," or "[t]hirty days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed." When a defendant fails to file a timely motion for an appeal, his conviction and sentence are final. State v. Jupiter , 05-869 (La. App. 5 Cir. 2/3/06), 922 So.2d 1245, 1246-47.

In the instant case, on February 29, 2016, the trial court denied defendant's post-trial motions and resentenced him. Defendant did not file a motion to reconsider sentence. Also, defendant did not file a timely written motion for appeal within thirty days after February 29, 2016, pursuant to La. C.Cr.P. art. 914. Further, defendant did not orally move for an appeal. Therefore, defendant's sole vehicle for obtaining an appeal challenging his conviction and sentence was to seek reinstatement of his appeal rights in the trial court. See State v. Counterman , 475 So.2d 336, 340 (La. 1985).

The appropriate procedural remedy for a defendant seeking to exercise his right to appeal after his conviction and sentence become final is a timely-filed application for post-conviction relief seeking an out-of-time appeal. State v. Gray , 04-1272 (La. App. 5 Cir. 4/26/05), 902 So.2d 1060, 1061. La. C.Cr.P. art. 930.8 provides that applications for post-conviction relief, including requests for out-of-time appeals, must be filed within two years from the date that a defendant's conviction and sentence become final, unless certain specific exceptions apply. Subpart A(1) of the Article creates an exception where "the applicant alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his attorney." The trial court does not have jurisdiction to grant an untimely application for post-conviction relief seeking an out-of-time appeal absent the showing of an exception to the time limitation as provided for by Article 930.8. State v. Daigle , 593 So.2d 676 (La. App. 3rd Cir. 1991), writ denied , 604 So.2d 980 (La. 1992) ; See also State v. Theard , 04-1212 (La. 6/17/05), 904 So.2d 681. This Court may address the untimeliness of an application for post-conviction relief on its own motion. See State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189, 1201-02.

In the instant case, on June 12, 2018, defendant filed a Motion for Out of Time Appeal that was granted on June 14, 2018. Defendant's Motion for Out of Time Appeal was untimely under Article 930.8 as it was filed more than two years after the judgment of conviction and sentence became final on February 29, 2016. Moreover, the exception in subpart A(1) of that Article does not apply to defendant's motion because he failed to allege that his untimeliness was due to recently discovered facts. Also, the other exceptions listed in Article 930.8(A) do not apply.

Because the time delays in La. C.Cr.P. art. 930.8 are jurisdictional, the trial court did not have authority to grant defendant's untimely request for an out-of-time appeal. Accordingly, the appeal is untimely and is hereby dismissed. See State v. Brown , 16-141 (La. App. 5 Cir. 9/22/16), 202 So.3d 585 ; State v. Russell , 14-841 (La. App. 5 Cir. 1/28/15), 167 So.3d 917.

CONCLUSION

For the foregoing reasons, defendant's appeal is dismissed.

APPEAL DISMISSED

      In the same indictment, Charles B. Lathers was also indicted with the second degree murder of Terrance Augustine.

      Even though defense counsel's motion to withdraw as counsel was granted on April 2, 2015, the minute entry dated April 14, 2015 reflects that defense counsel was present for sentencing.

      At the sentencing hearing on February 29, 2016, the trial court advised defendant that he had thirty days to appeal and two years after the sentence became final to file for post-conviction relief.

      La. C.Cr.P. art. 930.8 provides, in pertinent part:
      A. No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922, unless any of the following apply:
      (1) The application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his prior attorneys. Further, the petitioner shall prove that he exercised diligence in attempting to discover any post-conviction claims that may exist. "Diligence" for the purposes of this Article is a subjective inquiry that must take into account the circumstances of the petitioner. Those circumstances shall include but are not limited to the educational background of the petitioner, the petitioner's access to formally trained inmate counsel, the financial resources of the petitioner, the age of the petitioner, the mental abilities of the petitioner, or whether the interests of justice will be served by the consideration of new evidence. New facts discovered pursuant to this exception shall be submitted to the court within two years of discovery.
      (2) The claim asserted in the petition is based upon a final ruling of an appellate court establishing a theretofore unknown interpretation of constitutional law and petitioner establishes that this interpretation is retroactively applicable to his case, and the petition is filed within one year of the finality of such ruling.
      (3) The application would already be barred by the provisions of this Article, but the application is filed on or before October 1, 2001, and the date on which the application was filed is within three years after the judgment of conviction and sentence has become final.
      (4) The person asserting the claim has been sentenced to death.