source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    STATE of Louisiana v. S.R.
    18-966
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019
    Edward Moses, Jr., Moses Law Firm, L.L.C., P.O. Box 83232, Baton Rouge, LA 70884, (225) 295-5632, COUNSEL FOR DEFENDANT-APPELLANT: S.R.
    Shane E. Romero, Jr., 110 E. Pershing St., New Iberia, LA 70560, (337) 321-6945, COUNSEL FOR APPELLEE: C.R.
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.
   PICKETT, Judge.

S.R. appeals the judgment of the trial court, agreed to by consent of the parties, releasing insurance settlement proceeds due to S.R. and her attorney and, from those settlement proceeds, ordering payment of past due child support arrearages to the Department of Children and Family Services and C.R., the father of S.R.'s children.

PROCEDURAL ISSUES

At the outset, we note some procedural irregularities with this case. When this record was lodged with this court, it included only the following documents:

1. A Minute Entry dated June 26, 2018 referencing a hearing on a Motion for Reduction of Costs.
2. A Motion and Order for Appeal filed on July 26, 2017, which seeks appeal from the trial court's amended judgment of March 14, 2017. The Order granting the appeal was signed by the trial court on August 4, 2017.
3. An Order dated October 29, 2018, setting the appeal costs at $ 1,500.00 pursuant to a motion to reduce appeal costs. This order also contains the following language:
IT IS ORDERED, ADJUDGED, and DECREED that the 3rd Circuit Court of Appeal did grant S[.] R[.] use of her non-support record, docket number 09 N 749, lodged in her adoption appeal docket number 1582 without duplication.
IT IS ORDERED, ADJUDGED, and DECREED that the Iberia Parish Clerk shall only prepare the designated portions of S[.] R[.] non-support record.
IT IS ORDERED, ADJUDGED, and DECREED that S[.] R[.] did designate as her record for appeal a copy of the Chronological Index itemization of the original non-support record that is lodged in her aforementioned adoption proceeding.
4. The Chronological Index in the non-support case, dating from August 21, 2009 through September 26, 2018.

Although the trial court's judgment states that S.R. designated the appellate record, the record sent to this court lacks any motion to so designate. Such designations are required to be in writing. La.Code Civ.P. art. 2128. Further, La.Code Civ.P. art. 2129 requires, in pertinent part, "Where the appellant designates only portions of the record as the record on appeal, he must serve with his designation a concise statement of the points on which he intends to rely, and the appeal shall be limited to those points." Also absent from the record provided to this court was a copy of the judgment from which S.R. is appealing.

Given the incomplete nature of the record as presented to us, on March 19, 2019, after this appeal had been assigned to a panel of this court for review, this court ordered the district court clerk to return the record in this non-support case, which had formed a part of the record by order of this court in In re: ALR and BAR , 17-916 (La.App. 3 Cir. 3/14/18), 240 So.3d 273, writ denied , 18-954 (La. 8/31/18), 251 So.3d 413 :

In In Re: ALR and BAR , bearing this court's docket number 17-916 and the district court's docket number 15-82, a prior order was issued by this court dated December 7, 2017, through which this court ordered the record in the instant case, the non-support case bearing the district court's docket number 09-749, be prepared and transmitted to this court for lodging as an exhibit in that appeal since the record in the non-support case had been admitted into evidence in In Re: ALR and BAR , 17-916. In another order from this court issued January 9, 2018, issued in this court's docket number 17-916, this court ordered that S[.] R[.] be permitted to use this exhibit in the then unlodged appeal from the judgment in the non-support case, bearing the district court's docket number 09-749.
Upon the lodging of the record in the instant appeal in this non-support case, bearing the district court's docket number 09-749, this court noted the absence of the previously sent record in these proceedings. Although the exhibit record in these proceedings was returned to the district court upon the completion of the appeal in this court's docket number 17-916, the district court failed to return this exhibit record when the record in the district court's docket number 09-749 was transmitted to this court.
THEREFORE, IT IS HEREBY ORDERED that the Clerk of the Sixteenth Judicial District Court, Iberia Parish, forward to this court, by no later than March 29, 2019, the previously prepared record that was transmitted to this court as an exhibit in the appeal in this court's docket number 17-916. In the event this record is no longer in the possession of the district court, the Clerk of the Sixteenth Judicial District Court, Iberia Parish, is hereby ordered to duplicate this record again and transmit it to this court no later than March 29, 2019. If the Clerk of the Sixteenth Judicial District Court, Iberia Parish, cannot provide this record to this court, the Clerk is hereby ordered to respond to this order, in writing, by no later than March 29, 2019, to provide an explanation as to why compliance with the instant order cannot be accomplished.

When the Clerk of the Sixteenth Judicial District Court, Iberia Parish, complied with this order, we noted that the judgments from which S.R. has appealed were not made a part of the record. The last entry in that record is an exhibit list from the March 13, 2017 hearing and a minute entry from the same date which concludes with the following statements:

The Court after hearing testimony presented will take this matter under advisement and render written reason in thirty (30) days.
The parties can send briefs to the Court for consideration.
Mr. Moses asked for a brief moment to speak to Mr. Romero outside of the Court room.
The parties returned and spoke to the court on there [sic] discussion and agreed to the following stipulation.
Mr. Romero stated that Mr. Moses with his client has agreed to pay $ 50,000.00 on these proceedings contemplating that the amount that is owed to Department of Family Services is $ 20,874.01.
The Court ordered the $ 50,000.00 is to be sent to the Department of Family Services.
They will take the amount owed to them and will submit the balance accordingly.
Mr. Romero stated that this issued [sic] settles the contempt proceedings against [S.R.] and Mr. Moses.
Mr. Moses will dismiss there [sic] respective actions.
Judgment to be submitted at a later date.

This court then issued a second order to the clerk of court:

Pursuant to the authority granted to this court by La.Code Civ.P. art. 2132 and finding that the record in this appeal omits material parts thereto, this court hereby orders a supplemental record be prepared by the district court, in duplicate, containing the two written judgments of the trial court dated of March 14, 2017, and any motion and order for designation of the record of the appeal in this matter. This record is to be transmitted to this court by no later than April 16, 2019.

We received a supplemental record which included two judgments dated March 14, 2017. The first was signed by the trial court at 8:55 a.m. but vacated by the trial court at 9:35 a.m. That judgment releases a $ 300,000.00 settlement payable by Valley Forge Insurance Company to S.R. and her attorney, Mr. Moses. The judgment orders $ 45,500.00 to be paid to the Department of Children and Family Services (DCFS) and the remaining $ 254,500.00 to be paid to S.R. and her attorney, Mr. Moses. The judgment further orders the release of $ 4,500.00 paid by Mr. Moses and S.R. to DCFS to purge a contempt charge against them. The judgment orders DCFS to tender $ 48,791.72 to C.R. and to retain $ 1,208.28 as the administrative fee on the $ 25,374.01 payable in accrued past due child support. The second judgment, signed by the trial court at 9:45 a.m. on March 14, 2017, contains substantially similar terms, but orders Valley Forge to pay DCFS the accrued past due child support and the excess $ 24,625.99 directly to C.R. We note that both judgments contain the following paragraph before the terms of the settlement are set forth:

After a trial and submission of the case to the Court, and before the Court rendered a judgment, the parties entered into a stipulation on the record to settle all matters and consent to the entering of this judgment to avoid further litigation, to-wit[.]

The only evidence of the designation of the record provided to this court was a copy of the October 29, 2018 order from the trial court setting court costs quoted above. Both parties attached additional documents to their briefs in support of their claims, including an email exchange regarding the judgments at issue, a portion of the transcript from the March 13, 2017 hearing, and a motion for a new trial and the transcript from the hearing for a new trial. We will not consider that information, as it has not been made a part of the record before us. "Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence." Denoux v. Vessel Management Services, Inc. , 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88 (citing La.Code Civ.P. art. 2164).

FACTS

These parties have appeared before this court previously, litigating similar issues in In re: ALR and BAR , 17-916 (La.App. 3 Cir. 3/14/18), 240 So.3d 273, writ denied , 18-954 (La. 8/31/18), 251 So.3d 413. S.R. was ordered to pay child support in the amount of $ 305.00 per month. She consistently failed to pay any child support. C.R. re-married in April 2007. In 2012, C.R. and his new wife filed a petition for intrafamily adoption on the basis that S.R. failed to pay child support for six months and failed to communicate with the children without just cause for six months. The trial court granted the petition for intrafamily adoption, then annulled the judgment on the basis that service was improper and information was withheld from the curator appointed to represent S.R. C.R. and his wife re-urged their petition, which was granted on the basis that S.R. failed to pay child support for a period of six months and that adoption by their father's new wife was in the best interests of the child. This court affirmed the judgment of the trial court. In the intrafamily adoption appeal, S.R. sought to consolidate the appeal in this support enforcement case, which this court denied, finding "judicial efficiency is not served with this consolidation." Id. at 276.

Based on the limited record before us, we can glean that S.R. secured a $ 300,000.00 insurance settlement. Because S.R. had failed to pay court ordered child support to C.R., the trial court issued a restraining order preventing the insurance company from disbursing funds to S.R. After a day-long trial, S.R. and her attorney then entered into a stipulation with DCFS and C.R. whereby the temporary restraining order could be released in return for a portion of the settlement funds being paid to DCFS and C.R. to satisfy her past due child support obligation. S.R. now appeals that consent judgment.

ASSIGNMENTS OF ERROR

On appeal, S.R. asserts two assignments of error:

1. The Iberia Parish court erred in granting C[.R.'s] motion to set child support and medical support because it did not have subject matter jurisdiction over the suit that arose in Lafayette Parish.
2. The Iberia Parish trial court erred in granting C[.R.'s] amended child support judgment because it changed the substance of the previous final judgment with respect to who payments were to be made.

DISCUSSION

In her first assignment of error, S.R. argues that the Iberia Parish District Court did not have subject matter jurisdiction over the child support enforcement proceeding. S.R. asserts that the proper venue for the support enforcement proceeding filed by the district attorney on behalf of DCFS was Lafayette Parish, because that is where the divorce proceeding was initiated. We find the Iberia Parish court had subject matter jurisdiction because at the time the instant action was filed, the children were residents of Iberia Parish. There is no evidence in the record before us that a support order was ever issued in Lafayette Parish, so we do not find La.Code Civ.P. art. 2786 applicable, which requires a support order issued in one parish be registered in another parish. We also note that S.R. submitted to the jurisdiction of the court in Iberia Parish since 2009, never once complaining of the venue of the action until this appeal. We find this assignment of error lacks merit.

In the second assignment of error, S.R. complains that the second judgment signed by the trial court is a nullity because it improperly amended the judgment signed earlier in the day. We likewise find no merit in this assignment of error. The second judgment is a consent judgment. The differences are immaterial to S.R. - as a result of both judgments she receives $ 254,500.00 from the insurance company, her child support obligations are extinguished, and all other claims against her are dismissed. She has no interest in whom the insurance company writes checks to, as she agreed that she would pay $ 50,000.00 to satisfy her child support obligation in open court, according to the minute entry in the record.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to S.R.

AFFIRMED.

      In order to preserve the privacy of the children involved in the related adoption proceedings, we will use initials to identify the parties throughout this opinion.

      Mr. Moses is S.R.'s attorney and Mr. Romero is C.R.'s attorney.


author: Judge Edwin A. Lombard

text:
    INDEPENDENT REAL ESTATE INVESTMENT GROUP, LLC v. Bronwyn ALFANO
    NO. 2019-CA-0118
    Court of Appeal of Louisiana, Fourth Circuit.
    May 8, 2019
    Miles Gregory Trapolin, TRAPOLIN LAW FIRM, 4603 S. Carrollton Avenue, Suite F, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    Darnay Kastl, 847 Swan Neck Lane, Raleigh, NC 27615, Shandy Arguelles, Lindesey S. Olsen, DE ST. GERMAIN LAW OFFICE, LLC, 118 West Hall Avenue, Slidell, LA 70460, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Edwin A. Lombard

The plaintiff, Independent Real Estate Investment Group, LLC, appeals the district court judgment of November 7, 2018, wherein the district court (1) granted the declaratory exception of insufficiency of service of process filed on behalf of Darnay Kastl, the heir to the Succession of Bronwyn Alfano, the named defendant in this matter; (2) granted the peremptory exception of no cause of action filed on behalf of Mr. Kastl; (3) dismissed the plaintiff's petition for declaratory and miscellaneous relief; and (4) denied Mr. Kastl's motion to cancel recordation of statement of lien and privilege that was included within his pleading of exceptions. After review of the record in light of the applicable law and arguments of the parties, the district court judgment is affirmed in part and vacated in part.

Relevant Facts and Procedural History

On April 30, 2015, Ms. Alfano entered into a Bond for Deed with the plaintiff wherein Ms. Alfano's immovable property located at 315 North Bernadotte Street was sold to the plaintiff for the sum of $ 139,500.00 of which a portion was paid immediately and the balance was to be paid by installments as set forth in the Bond for Deed. See La. Rev. Stat. 9:2941. In January 2016, Debra Francis Dretar (plaintiff's sole manager-member) died. Shortly thereafter (in March 2016), the plaintiff's office was moved from the deceased Ms. Dretar's address at 3349 Ridglake Drive, Metairie, Louisiana to 5497 Canal Boulevard, New Orleans, Louisiana, the home of Kenneth Dretar, Ms. Dretar's Succession Administrator and plaintiff member.

Alleging that the plaintiff failed to make any of the required monthly payments after August 1, 2015, and subsequently failed to respond to the 45 day default notice mailed to the plaintiff on May 24, 2016, Ms. Alfano filed a "Cancellation for Bond for Deed" on October 5, 2016. No response was received from the plaintiff by Ms. Alfano. However, on November 3, 2016, the plaintiff filed and recorded a Statement of Lien and Privilege against the North Bernadotte property. Thereafter, Ms. Alfano died.

On February 3, 2017, the plaintiff (now under control of Mr. Dretar) filed a petition for a declaratory judgment and miscellaneous relief against Ms. Alfano seeking a declaratory judgment to void the Cancellation for Bond of Deed and to re-establish the plaintiff as the "rightful purchaser" pursuant to the Bond for Deed. The plaintiff asserted that the "Cancellation for Bond for Deed" was void because mailing the notice of default to the deceased Ms. Dretar's address in Metairie and did not constitute legal notice. Ironically, the plaintiff attempted to serve its petition on the deceased Ms. Alfano.

On August 30, 2018, in response to the plaintiff's petition for a declaratory judgment, exceptions of insufficiency of service of process and no cause of action were filed on behalf of Mr. Kastl. A motion to cancel the plaintiff's Statement of Lien and Privilege filed on the property at 315 North Bernadotte Street was improperly included in the filed pleading of exceptions.

After a hearing, the district court issued a judgment on November 7, 2018, granting the exceptions of insufficiency of service and no cause of action, dismissing the plaintiff's petition for declaratory judgment, canceling the Lis Pendens that resulted from the filing of the petition, and denying Mr. Kastl's motion to cancel the recordation of the statement of lien and privilege on the North Bernadotte Street property.

The plaintiff filed this timely appeal.

Applicable Law

When the grounds of the objections pleaded to in either a declinatory or peremptory exception can be removed by amendment of the petition or other action of the plaintiff, the judgment sustaining the exception shall order such an amendment within the time allowed by the court. La. Civ. Code Proc. arts. 932 and 934.

Discussion

On appeal, the plaintiff argues that by filing a motion in conjunction with the exceptions, Mr. Kastl submitted to the jurisdiction of the court and thereby cured the defects of the petition and service. This argument is meritless.

The motion to cancel the plaintiff's Statement of Lien and Privilege in this proceeding was undisputedly improperly filed and the district court correctly denied the motion. Because Ms. Alfano was deceased when the plaintiff's petition was filed naming her as defendant and service of the petition was attempted, there was no cause of action and service was insufficient. Accordingly, the district court judgment is affirmed with respect to sustaining the exceptions and denying the defendant's motion.

However, pursuant to La. Code Civ. Proc. arts. 932 and 934, the plaintiff must be allowed the opportunity to amend its petition to name a proper defendant and effect service. Accordingly, the district court judgment dismissing the plaintiff's petition for a declaratory judgment is vacated and the matter is remanded to the district court.

Conclusion

The district court judgment is affirmed in part; vacated in part; and the matter is remanded for further proceedings.

AFFIRMED IN PART; VACATED IN PART; REMANDED.

LEDET, J., CONCURS WITH REASONS

I disagree with the majority's finding that the appellee, Darnay Kastl, did not make a general appearance, waiving his declinatory exception of improper service. Filing of a pleading constitutes a general appearance. See Dazet Mortgage Sols. LLC v. Faia , 12-486, p. 5 (La. App. 5 Cir. 4/10/13), 116 So.3d 711, 715-16 (observing that a party can waive an objection to the jurisdiction of the court by an appearance of record, which includes "filing a pleading, appearing at a hearing, or formally enrolling as counsel of record"). A motion is a pleading. See La. C.C.P. art. 852 (providing that "[t]he pleadings allowed in civil actions ... shall consist of petitions, exceptions, written motions, and answers").

Here, Mr. Kastl simultaneously filed both two exceptions-a declinatory exception of insufficiency of service and a peremptory exception of no cause of action-and a motion on the merits to remove the lien. By filing the motion, he made a general appearance.

Accordingly, I concur.


author: KYZAR, Judge.

text:
    STATE of Louisiana v. McKartney YOUNG
    18-858
    Court of Appeal of Louisiana, Third Circuit.
    May 15, 2019 Rehearing Denied June 14, 2019
    John F. DeRosier, District Attorney, Brett Gaspard, Elizabeth B. Hollins, Assistant District Attorneys, Fourteenth Judicial District, P.O. Box 3206, Lake Charles, LA 70602-3206, (337) 437-3400, COUNSEL FOR APPELLANT: State of Louisiana
    Todd S. Clemons, Todd Clemons & Associates, 1740 Ryan Street, Lake Charles, LA 70601, (337) 477-0000, COUNSEL FOR DEFENDANT/APPELLEE: McKartney Young
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.
   KYZAR, Judge.

The State of Louisiana appeals the sentence imposed on the defendant, McKartney Young, who was adjudicated a fourth habitual offender pursuant to La.R.S. 15:529.1 and sentenced to five years imprisonment for the offense of possession of codeine with the intent to distribute, in violation of La.R.S. 40:970, with the sentence to run concurrently with a previous five-year sentence wherein Defendant's probation had been revoked. The State contends that the sentence is illegally lenient. For the following reasons, we vacate Defendant's sentence and remand the matter to the trial court for resentencing in accordance with this opinion.

DISCUSSION OF THE RECORD

This matter is before us again for the third time. In State v. Young , 17-1108 (La.App. 3 Cir. 5/9/18), 246 So.3d 597, the State appealed the sentence of five years imposed by the trial court in a habitual offender proceeding for possession with the intent to distribute both codeine and for possession with the intent to distribute cocaine, with the sentences to run concurrently to Defendant's sentence in another matter. Therein, this court discussed the procedural history of this case as follows:

Defendant was indicted by a Calcasieu Parish grand jury with Possession of a Controlled Dangerous Substance-Schedule II (cocaine) with intent to distribute, a violation of La.R.S. 40:967, and Possession of a Controlled Dangerous Substance-Schedule V (codeine) with intent to distribute, a violation of La.R.S. 40:970. Plea negotiations ensued Defendant's entry of a plea of not guilty. Despite the fact that he had not reached an agreement with the State on the recommended sentences, Defendant entered a guilty plea and was sentenced to five years imprisonment on each charge. These sentences were to run concurrently with each other and with a probation violation he was serving at the time.
The State then charged Defendant with being a fourth habitual offender pursuant to La.R.S. 15:529.1. Defendant denied the charge. At the hearing on the habitual offender charge, the trial court adjudicated Defendant a habitual offender, vacated the sentences imposed at Defendant's entry of the guilty pleas, and sentenced Defendant to twenty years imprisonment without benefit o[f] probation, parole, or suspension of sentence.
Defendant filed a motion for new trial and reconsideration of sentence, which the trial court granted. At the new trial on the habitual offender bill, the State introduced evidence to prove that Defendant had been convicted in 2005 of simple burglary and possession of a Controlled Dangerous Substance-Schedule IV, in 2011 of possession of a Controlled Dangerous Substance-Schedule II, and of the 2015 guilty pleas referenced above. According to the testimony of Defendant's attorney at the time of his plea, while the State regularly threatened defendants with being charged as habitual offenders if they rejected a plea offer, Defendant's case was the first and only time he had actually seen the State carry through with such a threat following the entry of a guilty plea. Testimony was also adduced that Defendant had been charged with involvement in a homicide, but the State had dismissed the charges for lack of evidence. That attorney also testified that the State's offer of recommending a sentence of twenty years before the pleas were taken was so high because the State felt that Defendant "had beat a murder charge." Defendant also pointed out to the trial court that the relevant statute, La.R.S. 15:529.1, had been amended in 2017 to lessen the minimum sentence for a fourth and subsequent nonviolent offender from thirty years to twenty years. See 2017 La. Acts No. [2]82.

Id. at 598-99 (footnotes omitted).

This court vacated the sentence and remanded the matter to the trial court for resentencing with the following directive:

The trial court is instructed to articulate with specificity the findings of fact supporting any downward departure from the statutory minimum sentence imposed pursuant to La.R.S. 15:529.1, as it provided at the time of sentencing, in accordance with this opinion. The trial court is also instructed to state which sentence is being enhanced pursuant to La.R.S. 15:529.1.

Id. at 603.

On June 12, 2018, at the conclusion of the resentencing hearing, the trial court took the matter under advisement. Thereafter, on June 15, 2018, the trial court filed a written ruling, wherein it again sentenced Defendant to five years as a fourth felony offender. Although there were two underlying charges in the habitual offender proceedings before it, the trial court stated, "the Court sentences the Defendant to five (5) years for his conviction of fourth habitual offender. This time is to run concurrent to any other time he is serving, with credit for time served." It further stated, "To the extent this Court has discretion to determine which offense to use for sentencing, the Court opts to use the codeine-based conviction." On June 29, 2018, the State moved for and was later granted an appeal in this matter. At a subsequent hearing on July 25, 2018, the trial court, without orally reading the sentence into the record, stated, "My sentence is what I have written on the ruling that's been provided to all counsel and is filed of record, I presume." The State objected to the sentence during the hearing.

On appeal, the State asserts that the trial court erred in imposing a lenient sentence outside the minimum limits of the habitual offender statute.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there is an error patent, which we will address to avoid the error being repeated on remand. First, as discussed above, Defendant's sentence was originally vacated, and the matter was remanded for resentencing with the trial court "instructed to articulate with specificity the findings of fact supporting any downward departure from the statutory minimum sentence." Id. at 603.

The court minutes from June 12, 2018, show that the matter was taken under advisement. On June 15, 2018, the trial court issued a written ruling maintaining its prior five-year hard labor sentence. The court minutes from July 25, 2018, and the transcript from the hearing show that the trial court ordered that its previously filed written ruling be made the sentence of the court. However, the trial court did not orally state for the record, in Defendant's presence, its reasons for the sentence nor the actual sentence. Louisiana Code of Criminal Procedure Article 871 requires sentences to be pronounced orally in open court and recorded in the minutes of court.

In State v. Jones , 517 So.2d 402, 406 (La.App. 5 Cir. 1987), writ denied , 522 So.2d 560 (La.1988), overruled on other grounds by State v. Monk , 532 So.2d 1143 (La.1988), the court explained, "The purpose of requiring the defendant's presence at sentencing and of pronouncing the sentence in open court is to insure the defendant is apprised of the punishment imposed. See C.Cr.P. arts. 835, 871 and comments thereunder." See also State v. Kinchen , 11-9 (La.App. 3 Cir. 6/8/11), 71 So.3d 344. Here, the trial court did not pronounce Defendant's sentence in open court; rather, it merely referred to the written sentencing document. We find that this was insufficient to comply with our law. Accordingly, we vacate Defendant's sentence, and on remand, the trial court is instructed that Defendant's sentence must be pronounced orally in open court and recorded in the court minutes as required by La.Code Crim.P. art. 871.

In its sole assignment of error, the State contends that the trial court erred in imposing an illegally lenient sentence after finding that Defendant was an exceptional case as well as prosecutorial vindictiveness on the part of the State. Within this assignment of error, the State asserts several claims. First, it contends that there was no evidence showing that Defendant was exceptional and, thus, entitled to a downward sentencing departure under State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, and State v. Dorthey , 623 So.2d 1276 (La.1993). Second, the State asserts that the trial court found that Defendant was a fourth habitual offender despite the case being presented as a third felony offender case. Third, the trial court improperly applied the habitual offender statute to the lesser of Defendant's two convictions when the State had the right to select the offense to be enhanced. Fourth, the trial court failed to sentence Defendant as a habitual offender on both charges that were subject to enhancement. Fifth, there was insufficient evidence presented to find prosecutorial vindictiveness. Sixth, the trial court's conclusion that the delay in filing the habitual offender action demonstrated an abuse of the State's authority was not supported by the record. Finally, the State, noting the trial court's conclusion that the change in cleansing period from five to ten years would have eliminated one of Defendant's prior convictions, asserts that Defendant would still be subject to a minimum sentence of fifteen years even if the new law was applicable.

The trial court stated the following in its written ruling pronouncing the sentence:

After a review of the law and the prior transcripts in this case, the Court sentences the Defendant to five (5) years for his conviction of fourth habitual offender. This time is to run concurrent to any other time he is serving, with credit for time served.
The Defendant's convictions are as follows:
2005 - simple burglary and possession of CDS IV
2011 - possession of CDS II
2015 - possession of CDS II (cocaine) with intent to distribute and possession of CDS V (codeine) with intent to distribute - both of these relate to a traffic stop on February 4, 2014 in which the Defendant was found with 9 rocks of crack cocaine and a bottle of codeine.
The evidence submitted at the hearing on May 24, 2017 persuades the Court that five years is the longest sentence which is not constitutionally excessive considering the factors discussed below.
The prior convictions are non-violent, drug offenses. The Defendant admitted he struggles with substance abuse. Imposing a 20 year sentence, which is the statutory minimum, would make no measurable contribution to the goal of punishment and is grossly out of proportion to the severity of the crimes. It is noteworthy that the last two charges of possession with intent to distribute arise out of acts on the same date and time, yet the State seeks to use both convictions for sentencing and enhancement purposes. To the extent this Court has discretion to determine which offense to use for sentencing, the Court opts to use the codeine-based conviction. It is also noteworthy that the charges arise from a traffic stop, rather than, for example, a typical sting-type operation directed at drug trafficking. In other words, the Defendant was not the focus of drug enforcement officials. Instead, the traffic stop had the unfortunate consequence (to the Defendant) of leading to his arrest on the drug charges. Also, while the Defendant pled guilty to possession with intent, the amount of drugs on [sic] his possession at the time of his arrest were arguably on the borderline of amounts to justify possession with intent.
A more troubling aspect of this case is the allegation of prosecutorial vindictiveness related to the 2003 charge of second degree murder. This charge was dismissed in 2005 but was resurrected by an indictment on January 26, 2017.
At the Habitual Offender hearing of May 24, 2017, the attorney for Mr. Young testified that the State made an offer of 20 years DOC to resolve the habitual offender charge. He was told this high offer was made because the State felt like Young "had beat a murder charge." Also, counsel testified that the offer had been directed by the "higher ups" at the District Attorney's office (transcript p. 20-21). This testimony was uncontroverted. Indeed, the undersigned has heard references from the State throughout these proceedings alluding to Mr. Young's prior murder charge. As a result, and because this Court finds that the Defendant has proven prosecutorial vindictiveness, the Court is compelled to deviate from the mandatory minimum. The customs and procedures employed on a daily basis in the 14th Judicial District Court in similar cases would not result in a 20 year offer, or even the filing of an Habitual Offender bill.
In addition to the above, the Court has been impressed by the remorse displayed by the Defendant at various hearings and the support he receives from family members at these hearings. His prior convictions are remote in time and provide further argument that habitualizing him at this late date represents an abuse of the prosecutor's authority.
The defense makes the compelling point that new "cleaning period" [sic] for these charges have been reduced from 10 to 5 years, meaning Mr. Young could not have been adjudicated a fourth offender because the 2005 convictions would be too old. While Mr. Young does not have the benefit of the change in the law, the purpose behind the law should be considered along with the other factors presented in this case.

After reviewing the record, we find that the trial court committed multiple errors in sentencing Defendant, resulting in an illegally lenient sentence as set forth below.

Offender Classification

In its ruling, the trial court stated that Defendant was a fourth felony offender while sentencing him to a total of five years imprisonment. The State asserts that Defendant was a third felony offender and should have been sentenced as such. We agree.

This court, it its opinion remanding the matter for resentencing, declared that Defendant was a third felony offender. Young , 246 So.3d 597. Further, in State v. Young , 17-1107, p. 1 (La.App. 3 Cir. 3/14/18), 2018 WL 1313413 (unpublished opinion), in which we dismissed the appeal lodged in the trial court docket number for Defendant's underlying convictions, this court stated, "Although the record of a May 24, 2017 hearing does not clearly indicate the trial judge adjudicated Defendant a third felony offender, minutes and the transcript of a September 12, 2017 hearing indicate the parties considered that adjudication to have been made." At a June 12, 2018 hearing regarding resentencing, the State informed the trial court: "I believe the Court found him to be a third habitual offender." The State further informed the trial court about multiple convictions occurring on the same date, stating: "[A]ll of those can be enhanced and he can be found a third habitual offender on all of those convictions that he has; however, they would be run concurrent." In its June 15, 2018 ruling setting forth Defendant's sentence, the trial court stated that Defendant was a fourth offender.

When the current appeal was lodged, an appeal was also lodged bearing the lower court docket number for Defendant's underlying convictions. In State v. Young , 18-859 (La.App. 3 Cir. 2/6/19), 2019 WL 459905 (unpublished opinion), this court, in dismissing that appeal, noted: "Comments of the parties at the September 12, 2017 hearing indicate that all [of] the parties agreed that the judge found Defendant to be a third habitual offender at the hearing held on May 24, 2017." Id. at p. 1 n.2.

In light of the State's assertion regarding Defendant's classification and this court's findings in Young , 246 So.3d 597, Young , 17-1107, and Young , 18-859, the trial court erred in imposing sentence as a fourth felony offender, irrespective of the deviation from the statutory sentences required thereunder. Therefore, Defendant's sentence is vacated for this reason.

Sentences Subject to Enhancement

The State asserts that the trial court erred when failing to sentence Defendant as a habitual offender on both offenses listed in the habitual offender bill of information. These included possession of cocaine with intent to distribute, a violation of La.R.S. 40:967, and possession of codeine with intent to distribute, a violation of La.R.S. 40:970. The trial court, in its written ruling stated, "To the extent this Court has discretion to determine which offense to use for sentencing, the Court opts to use the codeine-based conviction." The trial court then proceeded to impose a single five-year sentence, to run concurrently with any other sentence the Defendant was serving. The State argues that it was error for the trial court to select which sentence was to be enhanced when enhancement was sought for both of Defendant's convictions. We agree.

The Habitual Offender Statute, La.R.S. 15:529.1(A)(1) (emphasis added), provides in relevant part as follows:

Any person who, after having been convicted within this state of a felony ... thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows [.]

In State v. Shaw , 06-2467 (La. 11/27/07), 969 So.2d 1233, the supreme court overruled its decision in State ex rel. Porter v. Butler , 573 So.2d 1106 (La.1991), which prohibited habitual offender enhancement of more than one conviction obtained on the same date arising out of a single criminal act or episode. In Shaw , the supreme court held that the trial court did not err in its enhancement of each of five convictions occurring on the same date in adjudicating the defendant a third felony offender, stating "we find that the lower courts correctly concluded that all multiple sentences imposed after a single course of criminal conduct can be enhanced under the Habitual Offender Law." Shaw , 969 So.2d at 1235. The court detailed its holding as follows:

We therefore hold that the language of LSA-R.S. 15:529.1 contains no prohibition against enhancing multiple sentences obtained on the same date arising out of a single criminal act or episode. Unlike the Porter court, we find no legislative purpose or policy that is contradicted by failing to read such a prohibition into the statute's language. Nor does a plain reading of the statute generate absurd or unjust results. In clear and unambiguous terms, the statute exposes a person who has previously been convicted of a felony to enhanced penalties for any felony committed after the date of the prior felony conviction. There is no statutory bar to applying the habitual offender law in sentencing for more than one conviction obtained on the same date, whether the convictions result from separate felonies committed at separate times or arise out of a single criminal act or episode. To the extent that the opinions in [State ex rel. ] Porter [v. Butler , 573 So.2d 1106 (La.1991),] and [ State v. ] Sherer [, 411 So.2d 1050 (La.1982),] are inconsistent with this conclusion, they are overruled.

Id. at 1245.

Accordingly, there is no prohibition against imposing enhanced sentences for both of Defendant's convictions of possession with intent to distribute, and the trial court erred in not sentencing Defendant as a third felony offender on each conviction. Further, La.Code Crim.P. art. 61 states, "Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute." In reversing a trial court judgment that declared the provisions of La.R.S. 15:529.1 unconstitutional, the supreme court, in Dorthey , 623 So.2d at 1280, recognized the district attorney's authority to determine when enhancement of a sentence should be sought pursuant to the statutory scheme:

In essence, based on our understanding of the traditional role of the district attorney in criminal prosecution and the power of the Legislature to vest him with discretionary functions pertaining to criminal prosecution at the initial and subsequent stages of prosecution, we conclude that the provisions of 15:529.1 do not violate Louisiana's constitutional separation of powers. By imposing certain habitual offender statuses and corresponding penalties, the Legislature has merely established a procedure which enables a district attorney to seek and the courts to exact more severe sentences on defendants who repeatedly violate the criminal laws. The Legislature has acted within its constitutional authority which allows it to determine and define a crime and provide its penalty. It has not delegated any of its duties to the judicial or executive branches, nor has it usurped the judiciary's discretion in sentencing a defendant. Accordingly, no separation of powers violation exists.

In State v. Brisco , 04-3039 (La. 7/6/06), 933 So.2d 754, the supreme court was called on to determine who had the authority to determine the applicable sentencing provision when a general criminal provision differed from that established in a special provision. The court addressed the issue, stating:

The district attorney has broad discretion in both the institution and handling of criminal prosecutions. LSA-Const. art. V, § 26 (B); LSA-R.S. 16:1(B) ; State v. Walker , 2000-0334, p. 4 (La.App. 1 Cir. 12/22/00), 775 So.2d 663, 666, writ denied , 01-0235 (La. 12/07/01), 803 So.2d 23. When conduct is made criminal under a section of the revised statutes and is also criminal according to some special statute, prosecution may proceed under either provision, at the discretion of the district attorney. LSA-R.S. 14:4(2). Even when the penalty under a general criminal provision differs from that established in a special provision, the district attorney has the discretion to proceed under either provision. See State v. Juluke , 374 So.2d 1259, 1260 (La.1979) ; State v. Smith , 597 So.2d 1151 (La.App. 1 Cir.), writ denied 599 So.2d 311 (La.1992).
A district attorney has great discretionary power to file a habitual offender bill under LSA-R.S. 15:529.1(D), just as he has the initial power to prosecute "whom, when, and how" he chooses.
State v. Dorthey , 623 So.2d at 1279. For example, the use of the habitual offender laws by the district attorney simply provides an ancillary sentencing factor designed to serve important and legitimate societal purposes. State v. Orange , 02-0711 (La.App. 1 Cir. 4/11/03), 845 So.2d 570, writs denied , 03-1352 (La. 5/21/04), 874 So.2d 161, 03-2195 (La. 7/2/04), 877 So.2d 137. Just as the discretion to charge a defendant under the habitual offender law lies with the district attorney, so does the discretion lie to invoke the firearm sentencing provisions under LSA-C.Cr.P. art. 893.1, et seq. The legislature granted that broad discretion to the district attorney. Once the district attorney exercises the discretion to utilize LSA-C.Cr.P. art. 893.1, et seq. , the sentencing discretion afforded the trial court under LSA-R.S. 14:37.1 is no longer available. The trial court must sentence according to the mandatory minimum penalties for possession, use, discharge, or use or discharge causing bodily injury when a firearm is involved in the commission of felonies and certain specified misdemeanors, provided the relevant conditions are met and proper procedures are followed.
....
We hold that the State may invoke the firearm sentencing provisions set out in LSA-C.Cr.P. art. 893.1, et seq. , although an element of assault by drive-by shooting also forms the basis for limiting the discretion of the trial court in sentencing. These provisions can be reconciled to afford the district attorney discretion to invoke the firearm sentencing provisions depending upon how the firearm was deployed in the criminal activity. The district attorney is entitled to exercise that discretion after evaluating the degree of culpability of the offender based upon how the firearm was used and whether bodily injury was inflicted.

Id. at 762-63 (footnote omitted).

While the supreme court's holding specifically dealt with the sentencing enhancement for the use of a firearm in the perpetration of the underlying offense, it specifically highlighted that the same rationale applies to habitual offender sentencing enhancement cases. Simply stated, once the State selects the charges for which the sentence enhancements apply, the trial court has no discretion to ignore that selection if the defendant is, in fact, determined to be a habitual offender.

As previously noted, Defendant pled guilty to possession with intent to distribute cocaine and possession with intent to distribute codeine, and the habitual offender bill of information listed both convictions as subject to sentence enhancement. Based on the cases cited and the power of the district attorney, as set forth in La.Code Crim.P. art. 61, it was error for the trial court to refuse the State's request to enhance both sentences after Defendant was found to be a habitual offender under La.R.S. 15:529.1. Without question, the trial court had the authority to deviate from the minimum sentence set forth under the habitual offender statute, on a specific finding that such would be constitutionally excessive as applied to Defendant. Dorthey , 623 So.2d 1276. However, the trial court cannot simply ignore the provisions of this law by picking and choosing which sentence to enhance. By doing so here, the trial court erred.

Illegally Lenient Sentence

The State next contends that the trial court erred in imposing an illegally lenient sentence outside the minimum limits of the habitual offender statute. The State makes several claims within this argument. First, it contends there was no evidence to show that Defendant was exceptional and entitled to a downward departure under State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, and Dorthey , 623 So.2d 1276. Next, it asserts that there was insufficient evidence presented to find prosecutorial vindictiveness or that the delay in filing the habitual offender action demonstrated an abuse of the State's authority. Finally, the State asserts that even if the new cleansing law applied to Defendant, he would still be subject to a minimum sentence of fifteen years as a second felony offender for the underlying conviction of possession of cocaine with the intent to distribute.

We have already concluded that the trial court erred in failing to sentence Defendant as a habitual offender for the offense of possession of cocaine with the intent to distribute, in violation of La.R.S. 40:967(A). Both of the offenses that Defendant was charged with were committed on February 4, 2014. At the time of the offense, Defendant was subject to a penalty of two to thirty years at hard labor and a fine of up to $ 50,000.00, with the first two years to be served without benefit of parole, probation, or suspension of sentence on the offense of possession with the intent to distribute cocaine. La.R.S. 40:967(B)(4)(b). After being adjudicated a third felony offender, Defendant was subject to a minimum sentence of twenty years at hard labor and a maximum sentence of not more than sixty years at hard labor as per the provisions of La.R.S. 15:529.1 in effect at the time of the underlying conviction. He was sentenced to five years total on both offenses, and thus, the sentence is illegally lenient on its face.

La.R.S. 40:970(B), at the time of the offense, provided for a sentence of not more than five years and a fine of not more than $ 5,000.00 for the offense of possession of codeine with the intent to distribute. Under La.R.S. 15:529.1(A)(4)(a) as then in effect, a third offender would be subject to a minimum sentence of three and one-third years (three years and four months), while the maximum sentence possible was ten years in prison. Defendant was sentenced to serve five years total on both underlying offenses. Thus, the sentence imposed, if imposed solely for this offense, would not be illegally lenient on its face.

The balance between the role of the legislative branch in setting minimum and maximum sentences, such as those set forth in the habitual offender statute, and the judiciary's role in sentencing, was discussed in Johnson , 709 So.2d at 675-76 :

It is important to understand the roles both the Legislature and the judiciary have in sentencing persons for their criminal activity. The Legislature has sole authority under the Louisiana Constitution to define conduct as criminal and provide penalties for such conduct. La. Const. art. III, § I ; State v. Dorthey , supra at 1280 ; State v. Taylor , 479 So.2d 339, 341 (La.1985). Acting pursuant to this authority, the Legislature passed the Habitual Offender Law. This Court, on numerous occasions, has held this statute to be constitutional. See, e.g., State v. Dorthey , supra ; State v. Badon , 338 So.2d 665, 670 (La.1976). Since the Habitual Offender Law in its entirety is constitutional, the minimum sentences it imposes upon multiple offenders are also presumed to be constitutional. Dorthey , supra at 1281 (Marcus, J., concurring); State v. Young , 94-1636 (La.App. 4th Cir. 10/26/95), 663 So.2d 525.
Given the above, it is apparent that the Legislature's determination of an appropriate minimum sentence should be afforded great deference by the judiciary. This does not mean, however, that the judiciary is without authority to pronounce a constitutional sentence if it determines that a mandatory minimum sentence is excessive in a particular case. Instead, we have held that courts have the power to declare a sentence excessive under Article I, Section 20 of the Louisiana Constitution, although it falls within the statutory limits provided by the Legislature. State v. Sepulvado , 367 So.2d 762, 767 (La.1979). In State v. Dorthey , supra , this Court recognized that this power extends to the minimum sentences mandated by the Habitual Offender Law. Id. at 1280-81. However, this power should be exercised only when the court is clearly and firmly convinced that the minimum sentence is excessive.
What exists, then, is a delicate balance between the Legislature and the judiciary. On one hand, the Legislature has the constitutional authority to determine the appropriate penalty for a crime. On the other hand, the judiciary has the authority, in the rare case, to declare a sentence within these statutory limits excessive under the facts of a particular case. The issue for this Court is to determine under what rare circumstances a sentencing court should exercise its authority to declare excessive a minimum sentence mandated by the Habitual Offender Law.

A court is only permitted to depart from a minimum sentence if it finds that the defendant has proven, by clear and convincing evidence, that the mandatory minimum sentence is so excessive in his case that it violates our constitution, rebutting the presumption of constitutionality. Further, a "trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality[ ]" as "this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders." Id. at 676.

We find that the trial court erred in finding that Defendant proved by clear and convincing evidence that his case is exceptional such as to warrant the substantial deviation from the habitual offender minimum sentences set out in La.R.S. 15:529.1. First, the trial court improperly considered the "non-violent" nature of Defendant's past and present offenses during sentencing, when, as reflected herein, such is already accounted for in the provisions of the habitual offender law.

Second, there was no clear and convincing proof of prosecutorial vindictiveness, as used by the trial court as a reason for the downward departure. The colloquy from the May 24, 2017 sentencing hearing, wherein the issue of prosecutorial vindictiveness was introduced as a motivation for the habitual offender proceeding, reflects no evidence of actual vindictiveness, but rather Defendant's perception, as recounted by his then attorney, Mr. Brown, as follows:

Q. Okay. And did you reject that offer initially?
A. I did.
Q. Did you convey it to the client?
A. I did.
Q. And did he offer you a guide -- or an explanation as to why the offer was so high?
A. Yeah. What he informed me was that he had -- it was because they felt -- the State felt as if he had beat a murder charge.
Q. And did you know anything about a previous murder charge?
A. I did not at the time.
Q. Okay. And that was from '03?
A. That was from 2003, yes.
Q. And he told you that the State was being extra tough on him because they felt like he had gotten off of a murder charge? (Quote)
A. Exactly.

The only evidence in the record to support this accusation is that which was leveled by a defendant, who after having been convicted of three prior felonies, faces sentencing on two serious drug charges. The State's original sentencing offer to Defendant, prior to his original pleas of guilty to the underlying offenses, was twenty years. This, alone, was well within the sentencing range for the offense of possession with the intent to distribute a Schedule II controlled dangerous substance (cocaine), notwithstanding the other charge to which Defendant pled guilty and that he was subject to exposure as a habitual offender. Thus, the State's filing of the habitual offender bill, when Defendant was sentenced to a total of five years on both counts of possession with the intent to distribute, can hardly be described as an act of vindictiveness related to the unrelated murder charge. Indeed, the State advised the trial court and Defendant, at the time of his original pleas to the underlying charges, that it fully intended to file the habitual offender bill before his sentence was imposed.

The evidence further reflects that the murder charge referred to in relation to Defendant was reviewed by a grand jury, which pretermitted an indictment at that time. This does not reflect that Defendant "beat a murder charge." It simply reflects that the grand jury took no action at that time. Indeed, another grand jury indicted Defendant on the same murder charge as reflected in the trial court's sentencing ruling. There is no statute of limitations for the institution of murder charges. La.Code Crim.P. art. 571. Moreover, there was no other evidence of vindictiveness by the State, which was acting within its broad discretion in seeking enhanced sentences pursuant to La.R.S. 15:529.1.

The State's attempt to resolve the underlying charges, without resorting to habitual offender proceedings, by offering Defendant a twenty-year sentence can hardly be found extraordinary when Defendant faced the same sentence, by itself, on the charge of possession with the intent to distribute cocaine. Thus, based on the evidence presented at the hearing, the trial court erred when it based a downward departure of the mandatory minimum sentence, in part, on a finding of prosecutorial vindictiveness.

In addition, we find that the trial court's rationale for finding that Defendant was an exceptional case, thus, requiring a deviation from the minimum sentence provided by La.R.S. 15:529.1(3)(a), is misplaced. The trial court found as mitigating factors the fact that "Defendant was not the focus of drug enforcement officials" but that the "traffic stop had the unfortunate consequence (to the Defendant) of leading to his arrest on the drug charges." However, it was the choice of Defendant, himself, that led to his arrest and conviction for possessing illegal drugs with the intent to distribute those drugs. Further, the trial court stated that the "amount of drugs [in] his possession at the time of his arrest were arguably on the borderline of amounts to justify possession with intent" as a justification for the downward departure. This belies the fact that Defendant was arrested for possession with the intent to distribute of each of the two controlled dangerous substances and that he pled guilty to each offense as charged. This certainly does not qualify Defendant as the exceptional case such as to warrant a finding that the sentencing provisions of La.R.S. 15:529.1 are unconstitutional as applied to him, nor does the recognition of the Defendant's show of remorse.

Next, the State argues that trial court's conclusion, that the delay in the habitual offender proceeding demonstrated an abuse of the State's authority, was not supported by the record. In its written ruling, the trial court stated, "His prior convictions are remote in time and provide further argument that habitualizing him at this late date represents an abuse of the prosecutor's authority." We find that the trial court erred in finding that such a delay was caused by the State or that any such delay was grounds for finding La.R.S. 15:529.1 unconstitutional as applied to Defendant.

The record establishes that Defendant originally pled not guilty to the underlying offenses on July 25, 2014. At a preliminary examination on July 30, 2014, Defendant acknowledged that the hearing was rendered moot as he had been indicted by a grand jury. At a hearing on October 30, 2014, the case was set for trial on February 2, 2015. On February 2, 2015, Defendant pled guilty as charged to both offenses, the trial court sentenced defendant to serve five years on each offense, and the State then announced that it intended to file a habitual offender bill of information prior to the sentencing. On February 13, 2015, the State filed the habitual offender bill of information. Defendant appeared in court on April 20, 2015, and entered a not guilty plea to the habitual offender charge. The first habitual offender trial was held September 11, 2015, at the conclusion of which the trial court held that Defendant was a habitual offender and sentenced him to twenty years at hard labor, without the benefit of probation, parole, or suspension of sentence.

On October 28, 2015, at a hearing on Defendant's motion for a new trial, the matter was reset for December 2, 2015, on motion of the State. On December 2, 2015, the trial court granted the motion for new trial on the habitual offender status and set the trial for February 19, 2016. On February 19, 2016, the trial court granted Defendant's motion to continue the hearing to April 5, 2016. On April 5, 2016, the trial court granted Defendant's motion to continue the hearing to June 8. 2016. On June 8, 2016, the trial court granted Defendant's motion to continue the hearing to September 28, 2016. On September 28, 2016, the trial court granted Defendant's motion to continue the hearing to November 11, 2016. On November 11, 2016, the trial court granted Defendant's motion to continue the hearing to May 24, 2017.

On May 24, 2017, the hearing was held and then recessed to June 12, 2017. On that date, the matter was continued to September 12, 2017, when Defendant appeared in court without counsel. On September 12, 2017, the trial court sentenced Defendant to five years as a habitual offender, which resulted in the State's appeal and the opinion of this court in Young , 246 So.3d 597, vacating Defendant's sentence and remanding the matter for resentencing. On May 15, 2018, the trial court set the resentencing for June 12, 2018. Following the resentencing hearing, the trial court took the matter under advisement, and thereafter, rendered the written ruling on June 15, 2018, which was filed and made the sentence of the trial court on July 25, 2018, resulting in the current appeal.

As the lengthy record of this case reflects, there was no delay by the State in initiating the habitual offender proceedings, and any delays in the case have been the result of the many continuance requests made by Defendant, as well as the hearings on motions, retrials, appeals, and hearings on remand following the appeal. There has been no prejudice to the accused resulting from any delay, regardless of the cause. State v. Anderson , 10-256 (La.App. 3 Cir. 10/6/10), 48 So.3d 1202, writ denied , 10-2472 (La. 3/4/11), 58 So.3d 473. Certainly, this does not provide any cause to consider Defendant's case exceptional, such as to support a finding that the minimum sentence provided by La.R.S. 15:529.1 is unconstitutional as to him. Thus, we find that the trial court erred in so concluding.

Finally, the State argues that the trial court improperly applied the benefits of La.R.S. 15:529.1, as amended in 2017, in finding that Defendant's case warranted a downward departure from the mandatory minimum sentence. The law is clear that the provisions of the statute, in effect at the time of the commission of the offense, apply to the sentence to be imposed. State v. Parker , 03-924 (La. 4/14/04), 871 So.2d 317. Thus, the trial court erred in considering this factor to find that Defendant was an exceptional case so as to deviate his sentence below that provided by La.R.S. 15:529.1.

For these reasons, we find that the trial court erred in sentencing Defendant to an illegally lenient sentence. Accordingly, this matter is remanded to the trial court with instructions to sentence Defendant, orally in open court, as a third felony offender for possession with intent to distribute cocaine, violations of La.R.S. 40:967 and La.R.S. 15:529.1, with the sentence to be imposed without benefit probation or suspension of sentence. Further, the trial court is instructed to sentence Defendant, orally in open court, as a third felony offender for possession with the intent to distribute codeine, violations of La.R.S. 40:970 and La.R.S. 15:529.1, with the sentence to be imposed without benefit of probation or suspension of sentence.

DECREE

Defendant's sentence is vacated, and the matter is remanded for resentencing Defendant as a third felony habitual offender. The trial court is instructed to sentence Defendant, orally in open court, as a third felony offender for possession with intent to distribute cocaine, violations of La.R.S. 40:967 and La.R.S. 15:529.1, with the sentence to be imposed without benefit probation or suspension of sentence. Further, the trial court is instructed to sentence Defendant, orally in open court, as a third felony offender for possession with the intent to distribute codeine, violations of La.R.S. 40:970 and La.R.S. 15:529.1, with the sentence to be imposed without benefit of probation or suspension of sentence. The trial court is further instructed that Defendant's sentence must be imposed orally in open court and recorded in the minutes of court as required by La.Code Crim.P. art. 871.

SENTENCE VACATED AND REMANDED FOR RESENTENCING, WITH INSTRUCTIONS.

      The change in cleansing period was the result of 2017 La. Acts No. 257, § 1 and 2017 La. Acts No. 282, § 1. These amendments also altered some of the sentencing ranges set forth in La.R.S. 15:529.1. However, the punishment to be imposed on a habitual offender is that provided by La.R.S. 15:529.1 as it existed on the date the underlying offense was committed. See State v. Parker , 03-924 (La. 4/14/04), 871 So.2d 317. Parker 's pronouncement was incorporated into La.R.S. 15:529.1 by 2018 La. Acts No. 542, § 1, which became effective on August 1, 2018.
      The minimum sentence of fifteen years would apply to a third habitual offender sentenced for possession with intent to distribute cocaine under the amendments set out in Acts 257 and 282.

      2017 La. Acts No. 281, § 2 amended the penalty effective August 1, 2017, to not less than one year nor more than ten years and, in addition, a fine of not more than fifty thousand dollars, for an aggregate weight of less than twenty-eight grams with greater penalties for greater quantities.

      2017 La. Acts No. 257, § 1 and 2017 La. Acts No. 282 § 1 altered the sentencing ranges set forth in La.R.S. 15:529.1.

      2017 La. Acts No. 281, § 2 and 2018 La. Acts No. 206, § 4 amended the penalty for possession of a Schedule V controlled dangerous substance to not less than one year nor more than five years and a fine of not more than $ 5,000.00.


author: MAXWELL, JUSTICE, FOR THE COURT:

text:
    Jason Cunningham MCGRATH a/k/a Jason McGrath v. STATE of Mississippi
    NO. 2017-KA-01184-SCT
    Supreme Court of Mississippi.
    April 18, 2019
    ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY, Jackson
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON, Jackson
    BEFORE RANDOLPH, C.J., MAXWELL AND BEAM, JJ.
   MAXWELL, JUSTICE, FOR THE COURT:

¶1. A jury found Jason McGrath guilty of four counts of sexual battery by a person in a position of trust and one count of touching a child for lustful purposes. The charges stemmed from McGrath's sexual assault and molestation of his stepdaughter, M.M. He was sentenced to what amounts to forty years' imprisonment. On appeal, McGrath argues the trial judge wrongly admitted Rule 404(b) evidence of McGrath's previous sexual assaults and molestations of a different stepdaughter and his adopted daughter. We disagree.

¶2. After hearing from both previous victims and the parties, the judge found McGrath's earlier sexual assaults and molestations were relevant to show McGrath's intent, motive, opportunity, knowledge, and absence of mistake. The judge admitted this evidence under Rule 404(b), having deemed it more probative than prejudicial under Rule 403. We find there were several legitimate purposes supporting these admissions, and we see no abuse of discretion in these rulings. We affirm.

Background Facts and Procedural History

I. Rape and Sexual Assault

¶3. On the morning of June 23, 2014, thirteen-year-old M.M. awoke after receiving a text message from her stepfather, McGrath. The message asked her to come to the living room. M.M. walked to the living room and sat on the couch next to McGrath. When she did, McGrath reached over and began touching M.M.'s vagina with his hand. He eventually put his finger inside M.M.'s vagina. M.M. got up from the couch and went into the kitchen. McGrath followed her. Once there, he mixed some vodka with cranberry juice, handed the drink to her, and told her she was "better when [she's] drunk."

¶4. M.M. ate some food, drank some of the cocktail McGrath had made, and returned to her bedroom. Soon after, McGrath entered M.M.'s room. He removed her clothes and performed oral sex on her. He then climbed on top of M.M. and had sexual intercourse with her. Afterwards, McGrath apologized. And before leaving M.M.'s room, he suggested they act like it never happened. But just a few hours later, when both McGrath and M.M. were back in the living room, McGrath asked M.M. if she had ever performed oral sex. She said she had not. McGrath then grabbed M.M. by her shoulders, pushed her to the floor, and forced her to perform oral sex on him.

¶5. The next day, M.M. gave her mother a brief description of what McGrath had done. This prompted M.M.'s mother to take M.M. to the hospital, where the young girl gave a nurse a written statement detailing McGrath's sexual abuse.

II. Indictment and Trial

¶6. McGrath was indicted on April 10, 2015. He was charged with four counts of sexual battery by a person in a position of trust and one count of touching a child for lustful purposes. McGrath was also under indictment in another sexual-abuse case. In that case, he was charged with sexually assaulting his former stepdaughter, A.D., between 2010 and 2011. And several months before trial in the present case, the State filed a motion-under Mississippi Rule of Evidence 404(b) -seeking to admit testimony from A.D. about her past sexual abuse by McGrath.

¶7. At a February 16, 2017 hearing, the State proffered A.D.'s testimony and heard argument from the State and McGrath. Afterwards, the judge ruled that evidence McGrath had forced then-nine-year-old A.D. to perform oral sex on him was more probative than prejudicial under Rule 403.

So he admitted it in this case under Rule 404(b) as proof of McGrath's motive, opportunity, intent, knowledge, and absence of mistake.

¶8. Shortly after the February hearing, the State sought admission of additional Rule 404(b) evidence. The evidence came from another of McGrath's alleged then-minor victims-this time, his adopted daughter, J.M. The State argued J.M.'s accounts of abuse bore "substantial similarities to the abuse of M.M." On the first day of trial, before jury selection, the State proffered J.M.'s testimony. According to J.M., when she was between twelve and fourteen years old, McGrath, on several occasions, slid his hand in her underwear and played with her "pubic hair." As she put it, he would "twist it in his fingers." On one occasion, McGrath pulled her on his lap while they were swimming and she could feel "his penis in his swim trunks." After arguments from both sides, the trial court found J.M.'s testimony about McGrath's fondling her pubic hair and the swimming episode were more probative than prejudicial. So he admitted the evidence under Rule 404(b) to show McGrath's intent and opportunity. But the judge excluded evidence that McGrath was verbally and physically abusive and frequently walked around the house wearing only his underwear.

¶9. At trial, the State called nine witnesses, including McGrath's three victims-M.M., A.D., and J.M. McGrath did not testify. After deliberating, the jury found McGrath guilty on all counts. The judge denied his motion for a new trial, and he now appeals to this Court.

Discussion

¶10. McGrath argues the trial judge erred in admitting A.D.'s and J.M.'s testimony. He also suggests the State made an impermissible closing argument and claims his attorney was constitutionally deficient. We disagree. The record shows the trial judge properly evaluated the prior-bad-acts evidence-after filtering it through Mississippi Rule of Evidence 403 -and admitted it for permissible purposes. So we see no error in the handling of the Rule 404(b) evidence. As to McGrath's attack on the State's closing, McGrath failed to object during the State's closing arguments. Thus, he waived any respective challenge. Waiver aside, his challenges lack merit. Further, the record is insufficient to address McGrath's ineffective-assistance-of-counsel claim.

I. A.D.'s and J.M.'s Testimony

¶11. McGrath's primary argument concerns the trial judge's admission of evidence that he sexually abused his former stepdaughter, A.D., and fondled his adopted daughter, J.M. Because McGrath challenges an evidentiary ruling, we apply an abuse-of-discretion standard. See Hargett v. State , 62 So.3d 950, 952 (Miss. 2011).

A. Rules 404(b) and 403

¶12. Mississippi's evidentiary rules do not generally permit evidence of other crimes, wrongs, or acts to prove a person's character to show he or she acted in conformity therewith. Miss. R. Evid. 404(a). And for many years, evidence of a defendant's sexual abuse of children-other than the one he or she was on trial for abusing-was not admissible. But this prohibition was abolished in Derouen v. State , 994 So.2d 748 (Miss. 2008). The Court recognized that "[s]ex crimes against children are furtive, secret events usually lacking evidence other than the conflicting testimony of the defendant and the victim." Id. at 754. Thus, in many child sexual abuse cases, "[t]he only viable proof of motive, intent, plan, knowledge, identity or absence of mistake or accident may be the pattern of abuse suffered by others at the hands of the defendant." Id. at 754-55. Now, under our controlling law, if evidence of other sexual abuse is "properly admitted under Rule 404(b), filtered through Rule 403, and accompanied by an appropriately-drafted limiting or cautionary instruction to the jury," it may be admitted. Id. at 756.

¶13. Here, the trial judge heard extensive argument and testimony before admitting A.D.'s and J.M.'s testimony. He considered Rules 404(b) and 403 and made the required findings. He found A.D.'s testimony of her past sexual abuse was relevant to prove "motive, opportunity, intent, knowledge, [and] absence of mistake under 404(b)." He then filtered the evidence through Rule 403, and made an on-the-record finding that it was not "substantially outweighed by undue prejudice." By comparison, the judge excluded some of J.M.'s proposed testimony about McGrath's physical and verbal abuse. But he found J.M.'s testimony about McGrath's fondling her and the swimming pool episode were probative of McGrath's "intent and opportunity" and "not outweighed by the prejudicial effect." Thus, he admitted those portions.

B. McGrath's Rule 404(b) Arguments

¶14. McGrath recognizes that there is no longer a per se ban of Rule 404(b) evidence when defendants are charged with sexually abusing minors. He also concedes the judge cited the list of permissible Rule 404(b) exceptions in admitting evidence of his abuse and molestations of A.D. What he hinges his argument on are claimed dissimilarities between his alleged sexual abuse of A.D.-which occurred about six years earlier when she was only three or four years old-and his charged sexual battery of thirteen-year-old M.M. He also complains that because he did not build his defense around his lack of sexual intent or mistake, Rule 404(b) evidence should not have been admitted for those purposes. We find no merit to these assertions.

C. McGrath's abuse of A.D. and the present charges

¶15. The State pointed out the similarities between McGrath's abuse of A.D. and his more recent deviant sexual behavior with M.M. McGrath forced both young girls to perform oral sex on him. And similar opportunities to abuse the girls occurred when they were alone with McGrath at home. He also occupied the same position of authority over both children-he was their stepfather. This authority position formed the basis for each of the four "Sexual Battery by a Person in a Position of Trust" charges.

¶16. In Green v. State , this Court held that, when the sexual acts bear "overwhelming similarities" to the conduct at issue, they are "undeniably" admissible under Rule 404(b) as both motive and as evidence of a "common plan, scheme, or system." Green v. State , 89 So.3d 543, 550, n.19 (Miss. 2012) (alteration omitted) (quoting People v. Sabin , 463 Mich. 43, 614 N.W.2d 888, 899 (2000) ). The familial relationship and position McGrath held as a stepfather is particularly relevant, not only for the substantive charges, but also for Rule 404(b) purposes. Sexual acts which demonstrate "a common plan, scheme, or system ... utilized ... repeatedly to perpetrate separate but very similar crimes," such that the defendant "had a system that involved taking advantage of the parent-child relationship" are admissible. Young v. State , 106 So.3d 775, 779 (Miss. 2012) (quoting Green , 89 So.3d at 550 n.19 ). The same can be said for McGrath's substantially similar abuse opportunities.

¶17. The only support McGrath offers for exclusion of his prior abuse allegations is a recent Mississippi Court of Appeals opinion, White v. State , 228 So.3d 893 (Miss. Ct. App. 2017). In that case, the sharply divided appellate court held the trial judge wrongly admitted Rule 404(b) evidence about a defendant's alleged extramarital affair with a fifteen-to-seventeen-year-old girl, nine years later when he faced criminal charges for forcefully raping his eleven-year-old niece. Id. at 901-02. We find White completely unpersuasive and factually dissimilar. The Court of Appeals limited its holding to White 's particular facts. And there was no similar position of trust weaved through both episodes. Nor was there a later forced rape of a child. Id. So White has no bearing here.

¶18. What is relevant, however, is this Court's emphasis that any evidence that tends to show a "seemingly uncontrollable desire to partake in pedophilic sexual activities with young and developing female juveniles, is probative regarding motive ." Young , 106 So.3d at 779 (internal quotation marks omitted) (quoting Green , 89 So.3d at 550 n.19 ). And a jury may hear evidence of a " 'defendant's means of accomplishing these activities' " if they " 'bear substantial resemblance to each other and with the present offense.' " Id. (quoting Gore v. State , 37 So.3d 1178, 1186 (Miss. 2010) ). McGrath's motives and opportunity were similar-he used his position of trust, while alone with his stepchildren, to sexually abuse them. That there were differences in severity of some of the assaults and molestations and that one of his stepchildren was three or four and the other thirteen did not negate his substantially similar opportunities and pedophilic motives.

D. Purposes of Rule 404(b) Evidence

¶19. McGrath also argues the judge reversibly erred by admitting Rule 404(b) evidence for two purposes he claims were not at issue-absence of mistake and his underlying intent.

(1) Absence of Mistake

¶20. Upon review, as discussed, there were legitimate, alternative evidentiary purposes for admission of McGrath's prior sexual abuse. Thus, there was no harm in the judge's also admitting it for what ended up being an ancillary irrelevant purpose-showing absence of mistake. See Cole v. State , 126 So.3d 880, 885-86 (Miss. 2013).

(2) Intent

¶21. As to McGrath's intent argument, Count V charged him with touching a child for lustful purposes-a specific intent crime. One of the elements the State had to prove in Count V was that McGrath touched M.M. for purposes of gratifying his lust or indulging his licentious sexual desires. Miss. Code Ann. § 97-5-23(2) (Supp. 2018). A deep-rooted premise of Mississippi law is that a mere "plea of not guilty ... puts upon the State the burden of establishing every fact necessary to constitute guilt." Cunningham v. State , 56 Miss. 269, 274 (1879). That McGrath did not testify or mount an intent-based defense did not diminish the necessity that the State prove his lustful intent. Rather, by merely pleading not guilty to this specific-intent crime, McGrath put his intent squarely in issue. The judge weighed the evidence and arguments and found Rule 404(b) evidence of McGrath's prior fondlings of J.M.'s pubic hair relevant to prove McGrath's lustful intent and opportunity. And after review of J.M.'s testimony and the judge's findings, we see no abuse of discretion in the judge's deeming the probative value of this evidence was not outweighed by the danger of unfair prejudice.

II. Prosecutorial Misconduct

¶22. McGrath next suggests the State made an impermissible closing argument. He argues the prosecutor "attempted to cloak [a] constitutional violation" when "direct[ing] the jury's attention" to his right to remain silent. He also insists the State "vilif[ied]" him by using the words "pain," "painful," and "uncomfortable" when discussing the victims' embarrassment suffered by disclosing his sexual assaults. McGrath also takes issue with the prosecutor's pointing at him and asking the jury to hold him accountable for his actions with a guilty verdict.

¶23. First, McGrath did not object at trial, so he has waived any potential errors during closing arguments. See Terrell v. State , 237 So.3d 717, 734 (Miss. 2018). Even so, none of the prosecutor's remarks were objectionable.

A. McGrath's Right to Not Testify

¶24. A prosecutor is not allowed to comment on a defendant's Fifth Amendment right not to testify. See Moffett v. State , 156 So.3d 835, 853 (Miss. 2014). But what McGrath argues is error here is in no way violative of this Fifth Amendment protection. McGrath is upset that the State summarized and discussed the testimony of its own witnesses. He claims the State's recitation of its witnesses improperly highlighted the fact that he did not testify. Simply put, this practice is completely permissible and routinely done in most criminal cases. It is by no means a comment on McGrath's election not to testify.

B. Prejudicial, Inflammatory Statements

¶25. Lawyers are allowed wide latitude in closing arguments and may reasonably draw deductions or conclusions from the evidence. See Franklin v. State , 136 So.3d 1021, 1031 (Miss. 2014) ; see also Wells v. State , 698 So.2d 497, 506 (Miss. 1997). The prosecutor used the words "pain," "painful," or "uncomfortable" when describing how McGrath's sexual assault victims must have felt when reporting the embarrassing offenses and testifying about these certainly traumatic experiences in front of strangers in court. Although this issue is waived, we find the State's mentioning the feelings these girls experienced when disclosing and testifying about being sexually abused and molested by McGrath was not objectionable, much less so inflammatory or prejudicial to constitute a due process violation and warrant reversal. See Greer v. Miller , 483 U.S. 756, 765, 107 S.Ct. 3102, 3108-09, 97 L.Ed.2d 618 (1987).

C. "Hold Him Accountable" Statement

¶26. McGrath next claims the State committed misconduct by pointing at McGrath and asking the jury to hold McGrath accountable for his actions with a guilty verdict. McGrath provides no relevant authority or explanation for why the prosecutor's pointing at him, or the related argument, is reversible misconduct. He simply says it is prejudicial and unfair. In O'Connor v. State , this Court addressed a "send-a-message" argument by a prosecutor. O'Connor v. State , 120 So.3d 390, 398-99 (Miss. 2013). We explained that when confronted by such an argument, we first determine if the defendant's claimed error is procedurally barred. Id. If the claim is not barred, this Court must decide if the prosecutor's statement was so inflammatory that reversal is required. Id. As mentioned, McGrath did not object at trial, so the argument is waived. But even if he had, the State did not ask the jury to "send a message" to the community or anyone else. Instead, the prosecutor argued, "[t]his defendant is sitting in that chair right now because of the actions that he took on June 23, 2014, and I ask you to hold him accountable for those actions, and find him guilty of the charges that he's alleged to have committed, because he committed them." Here, the judge properly instructed the jury on the elements of the offenses. And "[t]he members of the jury were charged with the duty to make a finding of guilt based on the testimony and evidence presented at trial." Long v. State , 52 So.3d 1188, 1194 (Miss. 2011). What the State argued was nothing more than "simply reiterating the jury's duty set forth in the jury instructions." Id. Not only is this issue procedurally waived, but again there is no error.

III. Ineffective Assistance of Counsel

¶27. McGrath's final argument is that his trial counsel was ineffective for not objecting to the State's motion under Mississippi Rule of Evidence 412 to exclude alleged abuse by M.M.'s brother. We decline to address the issue at this time. There is no filed Rule 412 motion in the record. And the only reference in the transcript is a brief discussion between the trial judge, the State, and the defense that seems to confirm earlier discussions that any evidence of the alleged abuse was inadmissible under Rule 412. This alone is insufficient to establish a Strickland claim. See Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). And the State does not stipulate the record is adequate to address his claim. Read v. State , 430 So.2d 832, 841 (Miss. 1983).

¶28. We therefore deny relief but preserve McGrath's right to bring a Strickland claim in a post-conviction-relief petition, if he so chooses. See Lofton v. State , 248 So.3d 798, 808-09 (Miss. 2018) ; Archer v. State , 986 So.2d 951, 955 (Miss. 2008).

Conclusion

¶29. Evidence of prior bad acts is admissible when the trial judge properly analyzes the evidence under Rules 404(b) and 403. Here, the trial court did exactly that. The alleged victims testified McGrath sexually abused and molested them while they were minors in his care as a parent-similar acts that would tend to prove intent, motive, and opportunity in the present case against McGrath. The judge weighed the evidence and found it relevant and more probative than prejudicial. There is no abuse in that discretionary call. As to the State's alleged misconduct during closing argument, McGrath failed to object. So those issues are waived and upon review lack merit. Finally, since there is an insufficient record to address McGrath's Strickland claim, this Court dismisses it without prejudice for McGrath to raise it in a post-conviction-relief petition.

¶30. AFFIRMED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      McGrath was sentenced to thirty years on Count III, twenty years on Count I, fifteen years on Count V, twenty years on Count IV, all concurrent with the sentence in Count III. On Count II, McGrath was sentenced to twenty years, with ten to serve and ten years of post-release supervision.

      It is arguable that the swimsuit matter's probative value may be outweighed by its possible prejudicial effect, but considering the overall weight of the evidence against McGrath, its admission, even if error, was at most harmless.