author: AMY, Judge. THIBODEAUX, Chief Judge,

text:
    James SHAY v. CREATIVE POOLSCAPES AND GARDENS, LLC.
    No. 09-256.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2009.
    Rehearing Denied Jan. 13, 2010.

      Charles Schrumpf, Law Offices of Oliver and Charles Schrumpf, APLC, Sulphur, LA, for Defendant/Appellee, Creative Poolscapes and Gardens, LLC.
    Claude P. Devall, Devall Law Firm, Lake Charles, LA, for Plaintiff/Appellant, James Shay.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

_JjThe plaintiff sued his former employer for unpaid wages. The employer answered the suit with a reconventional demand requesting money allegedly owed for the purchase of a truck and other damages. The trial court dismissed both claims. The plaintiff appealed and the defendant answered the appeal. For the following reasons, we affirm.

Factual and Procedural Background

James Shay, the plaintiff and appellee, was employed by Creative Poolscapes and Gardens, LLC (Creative), the defendant and appellant. The plaintiff was hired at a rate of $10 per hour of work for a 40 hour work week. The parties agreed that the plaintiff would be paid $100 dollars in cash at the end of the week, with the remaining $300 dollars owed placed in savings by the defendant to be used at the plaintiffs direction. As admitted by both parties, the arrangement was created in order to allow the plaintiff to continue receiving disability benefits.

Shortly after the plaintiff began employment, the defendant purchased a used Ford truck. The defendant asserts that the truck was actually purchased by the plaintiff, from the money he was saving; however, the defendant maintained title to the truck. The defendant also asserts that insurance and gas for this truck was paid from the plaintiffs savings. The plaintiff used the company credit card to purchase gas, and denies any agreement that insurance and gas were to be paid out of his savings. The used Ford truck was sold to a third party. The defendant asserts that the plaintiff was given a credit in his savings for the purchase price of the truck.

The defendant again purchased another truck, a new Dodge. The truck, whose purchase price was nearly $50,000 dollars, was financed by agreement with the defendant and the dealership to pay a monthly note of $818.49 for five years. The |2defendant asserts that these monthly payments were to be paid out of the plaintiffs savings. The plaintiff contends that this truck was purchased by the defendant for use in the defendant’s business, although the plaintiff maintained sole possession of the truck. The record evidences that the parties had a discussion about what would happen with the truck at the end of the five-year financing period; however, their accounts of that discussion differ. The plaintiff alleges that he agreed with the defendant that at the end of five years, he would have the option to purchase the truck. The defendant, on the other hand, claims that the plaintiff always owned the truck, and that the defendant agreed to transfer the title to him if he was still employed by the defendant at the end of five years. The record also reveals that after the purchase of this second truck, there was not an understanding about which party was responsible for this truck’s insurance and gas payments.

The plaintiffs employment with the defendant ended on October 27, 2006. The parties dispute how long the plaintiff maintained possession of the truck after ending his employment. It is not disputed that at the time of the present suit the defendant had possession of the truck.

The plaintiff filed suit on September 10, 2007, for unpaid wages. The plaintiff claimed that the defendant refused to pay him the wages accumulated in savings for his benefit, specifically, the accumulation of $300 dollars saved from his period of employment between January 2, 2006 and October 26, 2006. The defendant responded to the plaintiffs suit with an answer and reconventional demand. The defendant denied it owed the plaintiff any unpaid wages, and instead, demanded the plaintiff pay the purchase price of the truck or damages to the truck and diminution in its value.

|sAfter a bench trial, the trial court found that an employment relationship existed between the parties, in addition to finding, “that some type of agreement” existed between the parties as to “obtaining the vehicle in the future, the terms of which were not clear.” Accordingly, the trial court dismissed both of the parties claims, stating:

Although the defendant failed to meet its burden of proof that a current purchase agreement exists between the parties, the court finds that some type of agreement between the parties did exist and that the defendant was reasonable in withholding plaintiffs wages. For this reason, the court finds that no wages are owed to the plaintiff. In lieu of wages owed, the court believes that the plaintiff is entitled to a share of the proceeds received from any future sale of the vehicle proportionate to his wages used in payment of the vehicle.
Furthermore, the Court dismissed the Defendant's reconventional demand for payment of expenses associated with the vehicle. The defendant failed to meet its burden of proof that such funds were owed by the employee!.]

The plaintiff now appeals, again seeking unpaid wages, penalties, and attorney fees. The defendant answered the appeal, seeking reimbursement of payment on the truck and attorney fees. However, the defendant’s brief did not assign any errors and pursuant to the Uniform Rules— Courts of Appeal, Rule 2-12.4, the defendant has abandoned issues regarding its reconventional demand denied by the trial court.

Discussion

The plaintiff asserts that the trial court erred in finding that he failed to prove a right to unpaid wages, penalties, and attorney fees. Specifically, the plaintiff argues that the trial court committed legal error in finding that unpaid wages existed and in finding that he was not entitled to those wages. He argues further that because he made a well-founded claim for wages that he is entitled to penalty wages. I,,The plaintiff also argues he is entitled penalties because the defendant was in bad faith when it withheld wages. We find no merit in this assertion.

The parties in this case intentionally created this unusual employment relationship in order to maintain the plaintiffs disability status. Only after this arrangement failed did the parties turn to the law seeking assistance and expecting that they would be able to establish their respective burdens of proof. In the end, the trial court correctly determined that neither was due additional recovery.

Louisiana Revised Statutes 23:631 and 23:632 require that an employer pay an employee wages “due under the terms of employment[.]” The trial court’s ruling demonstrates that the plaintiff simply failed to demonstrate what the terms of the oral contract were relating to the expenses associated with the purchase and maintenance of the truck. Similarly, the defendant failed to prove that it was owed additional reimbursement related to the expenses of the truck. In the end, the parties’ conflicting evidence puts into question whether there was a meeting of the minds and deserves the equitable remedy arrived at by the trial court, i.e., neither party should prevail on its respective claim.

We affirm the trial court’s judgment.

Decree

For the foregoing reasons, we affirm the judgment of the trial court. The costs of this appeal are assessed to the appellant, James Shay.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

11 The “equitable” remedy structured by the trial court and sanctioned by the majority is erroneous. Equity is invoked “[w]hen no rule for a particular situation can be derived from legislation or custom.” La.Civ.Code art. 4. Here, even the majority concedes that “the parties’ conflicting evidence puts into question whether there was a meeting of the minds.” If we are to accept this premise, then equity is inappropriate. Positive, written law governs a lack of bilateral consent. What happened in this case is exactly that: the parties never formed a contract.

Our decision today lends judicial imprimatur to a judgment and the trial court’s reasons for judgment that are incomprehensible.

The trial court found that an employment relationship existed between Shay and Creative whereby Shay received $100 per week out of his $400 per week wages. The trial judge stated that “some type of agreement did exist between the employee and employer as to the employee obtaining the vehicle in the future, the terms of which were not clear.” The trial court also found that Creative did not prove that there was a sale of the Dodge to Shay, but because there was some type of an agreement involving the Dodge, Creative was reasonable in withholding Shay’s wages. Although the trial judge stated that “no wages are owed to the plaintiff,” the |2court decided that Shay was entitled to a share of the proceeds received from any future sale of the Dodge “[i]n lieu of wages owed.”

After the trial, the court stated that a written agreement must exist for one to have a proprietary interest in a thing, and in this dispute there was no writing. The court went on to state that Shay was entitled to his salary in the amount of $300 per week for 41 weeks that was collected for the purchase of the vehicle. Yet, the court concluded that Shay’s entitlement to this money was “for another court at another time.”

In an effort to fashion an equitable solution to this dispute, the trial court committed several legal errors that tainted the trial court’s findings of fact. First, no written contract is required for one to acquire an ownership interest in a motor vehicle. Biggs v. Prewitt, 95-315 (La.App. 1 Cir. 10/6/95), 669 So.2d 441, writ denied, 96-1035 (La.5/31/96), 674 So.2d 264. Assertions of the trial court to the contrary are erroneous as a matter of law. Second, the trial court’s judgment is internally inconsistent and confusing. For example, the court stated that no wages were owed to Shay; yet, at the same time, it stated that “in lieu of wages owed,” Shay was entitled to a share of the proceeds from any future sale of the Dodge. (Emphasis added). Moreover, an entitlement to a share of the proceeds from a future sale of the Dodge implies an ownership interest the trial court held Shay did not have because of an absence of a written instrument. Finally, the trial court’s pronouncement that Shay was entitled to his salary of $300 per week for 41 weeks, but this matter was for another court at another time is puzzling. How could this matter be for another court at another time if Shay filed this suit to get precisely that, $300 per week for 41 weeks?

| sAll of these circumstances leads me to conclude that the trial court committed several legal errors that tainted its findings of fact. Moreover, the trial court’s judgment is internally inconsistent, warranting a de novo review.

Did the Parties Form a Contract Regarding the Employee’s Wages and the Employer’s Vehicle

To form an enforceable contract, there must be consent of the parties. La.Civ. Code art. 1927. “Consent may be vitiated by error, fraud, or duress.” La.Civ.Code art. 1948. Thus, an error as to the nature of the contract makes the contract void. See La.Civ.Code art. 1950; Becker & Assocs., Inc. v. Lou-Ark Equip. Rentals Co., Inc., 331 So.2d 474 (La.1976).

“Error is the greatest defect that can occur in a contract, for agreements can only be formed by the consent of the parties, and there can be no consent when the parties are in an error respecting the object of their agreement.
“There if a person intends to sell me anything, and I intend to receive it by way of loan or gift, there is neither sale, no [sic] loan, nor gift. If a person intends to sell me a thing, and I intend to buy or receive a donation of another, there is neither sale nor donation.”

Becker & Assocs., Inc., 331 So.2d at 477 (quoting Pothier, 1 Obligations, pt. 1, art. III, § 1, n. 17).

A court does not stop its inquiry once it rules that a contract never formed because of an error as to its nature. Instead, the court must decide whether one of the parties was unjustly enriched. Becker & Assocs., Inc., 331 So.2d 474. For example, where one party mistakenly believed that it was entering into a rental agreement with an option to purchase some equipment, and the other understood the transaction to be a mere lease, the court held the contract void. Id. Nonetheless, the court held that “the principle of unjust enrichment embodied in our Civil Code art. |fl965 [presently, La.Civ.Code art. 1878] requires” that the lessor “be compensated in the amount of the fair rental value of the equipment for the period it was in” lessee’s possession. Becker & Assocs., Inc., 331 So.2d at 477-78.

Throughout this litigation, Creative, through its witnesses, attempted to prove that the Dodge belonged to Shay. I presume, therefore, that Creative intended a sale of the Dodge to Shay. On the other hand, it appears from Shay’s testimony that he believed the transaction involved either a sort of lease arrangement or that he simply was allowed to use the vehicle and had an option to buy it after five years, subject to the condition of his continued employment at Creative.

The objective evidence of the parties’ intent, i.e., their actions, is similarly not helpful in resolving the question as to whether there was a meeting of the minds with respect to the nature of the transaction, i.e., whether it was a sale, a lease, or a rent-to-own-type of an arrangement. For example, although Creative asserted that the Dodge belonged to Shay, Creative acted as an owner of the vehicle while it was in Shay’s possession. Apart from retaining the title to the truck, Creative installed its large business signs on the Dodge, it depreciated the vehicle on its books, covered the truck under its own insurance policy, and insisted on the use of the vehicle in its business.

Shay’s actions are equally ambiguous. For example, although he claims that this was a company vehicle and he used it extensively in Creative’s business, he also had possession of it twenty four hours a day and, in fact, used it in his personal affairs. He was present at the dealership at the time Creative bought the vehicle and actively participated in the vehicle selection process. He also had a satellite radio and installed running boards, mud flaps, and a hitch on the vehicle (though he asserts that these were for the benefit of Creative).

Is While it is tempting to conclude, based on the actions of the parties, that there was a sort of lease agreement subject to Shay’s continued employment at Creative, whereby Shay would pay $300 per week in exchange for the use of the vehicle, with Creative paying for the insurance and other expenses, there are several problems. First, States claimed that this money, i.e., $300 per week, included the note on the Dodge, the cost of insurance, the money she lent to Shay for gas, and other expenses Shay requested her to pay. Creative’s brief states that “Shay agreed with Stutes to withhold sums, which she did, and pay items he wanted paid.” Nowhere in its brief does Creative claim that it would collect $300 per week in lease installments. I also note that it would be truly unusual for an employee to agree to pay this much money for a vehicle’s lease and also agree to use this vehicle quite extensively in the business of another without any reimbursement.

Second, there was an arrangement with the old Ford truck. Yet, at that time Creative also collected $300 per week, making even more dubious the conclusion that there was a lease at $300 per week for the Dodge. Creative claims that this payment included the insurance cost and repayment of the principal on this Ford. Yet, how the payment of $300 per week was divided between the principal and the insurance is unknown. Thus, there is no way to determine how many installments of $300 per week would Shay have had to make before he acquired ownership of the Ford. Therefore, even if I were inclined to find that there was a meeting of the minds and some type of a contract was, in fact, formed, for the reasons stated above, it would be impossible to determine what were the terms of that agreement.

Based on the considerations above, I conclude that there was an error as to the nature of the contract and that error vitiated consent. Because there was no |ficontract, Creative owes Shay wages of $300 per week for 41 weeks minus a loan Creative repaid to Colleen Foreman on Shay’s behalf in the amount of $240. Creative is not entitled to any money for insurance or gas because these were expenses that benefitted its business in the first place and because Creative failed to submit any evidence of these expenses. I would remand this case to the trial court for the limited purpose of ascertaining the fair use value of the Dodge while it was in Shay’s possession. The trial court would then have to determine what percentage of time Shay used the truck in Creative’s business. Creative is entitled to that percentage of the fair use value that the truck was not used for the benefit of Creative.

Attorney Fees

An award of reasonable attorney fees is mandatory if the employee files a “well-founded” claim for unpaid wages. La. R.S. 23:632; Carriere v. Pee Wee’s Equip. Co., 364 So.2d 555 (La.1978). No equitable defenses “based upon a good faith dispute by the employer, arising from reasonable and non-arbitrary belief, that he did not owe the wages” are permitted. Id. at 556. If an employee brings a successful suit and recovers unpaid wages, the claim is a well-founded one. Winkle v. Advance Prods. & Sys., Inc., 98-694 (La.App. 3 Cir. 10/28/98), 721 So.2d 983. Thus, because Shay brought a well-founded claim for unpaid wages, he is entitled to a fee.

Penalty Wages

Penalty wages will be assessed against the employer if the employee shows that: “(1) wages were due and owing; (2) demand for payment thereof was made where the employee was customarily paid; and, (3) the employer did not pay upon demand.” Hebert v. Ins. Ctr., Inc., 97-298 p. 9 (La.App. 3 Cir. 1/7/98), 706 So.2d 1007, 1013, writ denied, 98-353 (La.3/27/98), 716 So.2d 888. Yet, unlike a claim for attorney fees, a claim for penalty wages is subject to equitable defenses. Id. This is because the portion of La. R.S. 23:632 that authorizes penalty wages is considered penal in nature, and, therefore, must be strictly construed. Hebert, 706 So.2d 1007. Thus, if there is a bona fide dispute over the amount of wages the employer owes, the employer’s refusal to pay is generally not arbitrary, and penalty wages are improper. Id.

Here, Creative was under a bona fide impression that it had some type of contract with Shay regarding the Dodge. My conclusion that there was no meeting of the minds does not vitiate Creative’s good faith belief that it rightly retained Shay’s wages. This, in turn, created a bona fide dispute over the amount, if any, Creative owed Shay in unpaid wages. Therefore, I would not find that penalty wages are due.

For the foregoing reasons, I respectfully dissent.

      . Creative's claim of entitlement to the gas and the insurance payments are rather dubious because the gas and the insurance was for Creative's benefit as the vehicle was used in its business.

      . For example, if the trial court determines that Shay used the Dodge for the benefit of Creative sixty percent of the time, then Creative would be entitled to forty percent of the fair use value of the Dodge while it was in Shay's possession. These numbers are for clarification purposes only and should not be used by the trial court as any guideline for its determination.

      . That statute reads as follows:
      Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee's demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.


source: Caselaw Access Project

license: Public Domain

text:
    Tommie Mack GRANGER v. Stephanie W. GRANGER.
    No. 09-272.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2009.
    Writ Denied Dec. 18, 2009.

      Richard E. Lee, Pineville, LA, for Plaintiff/Appellee, Tommie Mack Granger.
    Henry H. Lemoine, Jr., Lemoine & Wampler, Pineville, LA, for Defendant/Appellant, Stephanie W. Granger.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

hThe parties were awarded joint custody of their minor child by a considered decree. The mother was named as the domiciliary parent. Thereafter, the father requested a change in the physical custody schedule as, he contended, the physical custody schedule was unworkable. The trial court found in favor of the father, modifying a portion of the physical custody-schedule. The mother appeals. For the following reason, we affirm.

Factual and Procedural Background

The parties, Dr. Tommie Granger and Dr. Stephanie Barnes, were awarded joint custody of their minor daughter, Savannah, by an August 2000 considered decree. The decree named Dr. Barnes as the domiciliary parent. At that time, Dr. Barnes resided in Little Rock, Arkansas with Savannah, while Dr. Granger resided in Alexandria, Louisiana.

The plan implementing the joint custody provided that Dr. Granger would have physical custody of the minor child every other weekend from Wednesday to Sunday. It prohibited Dr. Granger from removing Savannah from Little Rock until after school on Fridays. During the summer, Dr. Granger had physical custody from the beginning of the summer school break until ten days before the start of school. Dr. Barnes had physical custody every other weekend from Wednesday to Sunday.

By 2002, Dr. Granger began seeking a modification of the considered decree and a reduction in child support. By that time, Dr. Barnes and Savannah had relocated to Shreveport, Louisiana. After a number of continuances and after attempts at mediation, a hearing on the modification of the physical custody decree was eventually held in December 2008 and, thereafter, the trial court rendered a new decree. The decree maintained the parties’ joint custody status and, again, designated |2Pr. Barnes as the domiciliary parent. However, it shortened Dr. Granger’s period of physical custody during the school year to Friday after school until Sunday at 6:00 p.m. It lengthened Dr. Granger’s periods of summer physical custody from the end of the school term until five days prior to the beginning of the fall semester. As for the summer, Dr. Barnes was given physical custody every other weekend from 5:00 p.m. on Friday until Sunday at 6:00 p.m.

The trial court also reduced Dr. Gran-ger’s child support obligation by fifty percent during the summer when he was exercising physical custody.

Dr. Barnes appeals, assigning the following as error:

1. The trial court erred in modifying the visitation schedule of the minor child.
2. The trial court erred in failing to address visitation during the beginning and end of the summer time.
3. The trial court erred in setting the time for transfer of custody at 6:00 p.m.
4. The trial court erred in reducing the child support obligation.

Discussion

Modification

Dr. Barnes first questions the trial court’s modification of the existing physical custody arrangement. It is important to note that, throughout this proceeding, the parties have referred to the matter submitted to the court as a request for change in visitation. In fact, in her brief to this court, Dr. Barnes states that, since Dr. Granger “is attempting to modify visitation alone, the applicable standard is the best interest of the child.”

Yet, the parties shared joint custody in this case and, therefore, visitation is not at issue. See La.Civ.Code art. 136, which provides for visitation only in the event a |sparent does not have custody or joint custody. Instead, Dr. Granger sought a modification of the schedule of joint physical custody instituted pursuant to La. R.S. 9:335. Therefore, this case must be considered as a modification of custody. See Jackson v. Harris, 05-604 (La.App. 3 Cir. 12/30/05), 918 So.2d 1163; Cedotal v. Cedotal, 05-1524 (La.App. 1 Cir. 11/4/05), 927 So.2d 433; DeSoto v. DeSoto, 04-1248 (La. App. 3 Cir. 2/2/05), 893 So.2d 175; Francois v. Leon, 02-460 (La.App. 3 Cir. 11/27/02), 834 So.2d 1109; Lee v. Lee, 34,025 (La.App. 2 Cir. 8/25/00), 766 So.2d 723, writ denied, 00-2680 (La.11/13/00), 774 So.2d 150 (citing Davenport v. Manning, 95-2349 (La.App. 4 Cir. 6/5/96), 675 So.2d 1230).

The best interest of the child is the paramount consideration in a custody matter. See La.Civ.Code art. 131. However, because Dr. Granger sought a modification of a considered decree, he was required to satisfy the further jurisprudential standard of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). Bergeron requires the party seeking a change in custody to prove that the |4continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Id. See also La.Civ.Code art. 131, comment (d). A trial court’s determination in child custody matters is entitled to great weight, and will not be disturbed on review in the absence of a clear showing of abuse of discretion. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756.

As the trial court did not render written or verbal reasons for its ruling, it is unclear what standard it applied in its determination to modify the physical custody schedule. However, our review of the record indicates that the trial court’s ruling is not an abuse of its discretion as the evidence supports a modification of the original, considered decree under the Bergeron standard. In particular, the record contains clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

The Bergeron requirements must be considered in light of the circumstances of this case and the minimal changes requested by Dr. Granger. First, it is clear that certain aspects of the original custody decree were no longer working for the parties and that, although they had been living under the original decree, they were only Isdoing so with a great deal of stress and a certain degree of flexibility. That flexibility, or perceived lack thereof at certain times, caused friction between the parties. Further, the parties were aware of the need to reach a mutually agreeable schedule as they previously appeared in court and worked in mediation. However, they had been unable to do so. The trial court recognized this, stating that “nothing has worked, and that’s why we’re here today.” Finally, the modifications of the original decree requested by Dr. Granger, and imposed by the trial court, were limited in the scheme of the entire custody arrangement, i.e., the father was granted lengthier periods of physical custody in the summer, but was granted fewer days of custody during the school year. Although the trial court rendered a new order, the remaining custody terms were essentially unchanged.

In light of the geographical distance between the parties at the time of the original custody decree, the original decree gave Dr. Granger physical custody on the weekends from Wednesday through Sunday. Presently, however, since Savannah is now a teenager attending school in Shreveport, and Dr. Granger lives in Alexandria, Dr. Granger explained that he does not currently exercise the weekday portion of this period of custody during the school year. Instead, he only has Savannah on the weekends during that time. Accordingly, the trial court eliminated the Wednesday and Thursday portion of physical custody during the school year and provided a greater period during the summer. While Dr. Barnes does not complain about that portion of the trial court’s order which now provides her with greater custody during the school year, these two components of the new physical custody schedule cannot be viewed in isolation.

|fiThe trial court’s remarks during the hearing indicate that it considered the change in order to provide Dr. Granger with a better opportunity to exercise physical custody and, hopefully, better his relationship with Savannah. Much of Dr. Barnes’s argument focuses on her assertion that the original custody arrangement offers greater flexibility for the parties. In fact, Savannah testified about her desire for greater flexibility in her summer schedule so that she could participate in activities as desired. However, there is no abuse of discretion in determining that Savannah’s preference of moving between parents depending on her activities schedule, and notwithstanding the court’s custody decree, was secondary to the obligation to provide the parents with a reasonable opportunity in which they could supervise and direct the child as they saw fit. Furthermore, Savannah testified that she wanted a better relationship with her father. In fact, the trial court previously ordered that both Savannah and Dr. Gran-ger undergo counseling to deal their relationship issues. It was not an abuse of discretion for the trial court to conclude that the modified plan would permit Dr. Granger to better exercise his periods of physical custody and improve his ability to parent Savannah. Accordingly, the record contains clear and convincing evidence that any harm from the modified schedule is substantially outweighed by its advantages.

This assignment lacks merit.

Schedule

Neither do we find merit in Dr. Barnes’s assertion that the trial court abused its discretion in setting the time for the transfer of custody at 6:00 p.m. instead of her preferred time of 4:00 p.m. Although she contends that this time period causes difficulty, there is no evidence indicating that this transfer time is so inconvenient to 17either party that it was an abuse of discretion. Finally, Dr. Barnes’s request that the trial court alter certain aspects of the summer schedule in the original custody decree is rendered moot by the above affirmation of the modified custody schedule.

Child Support

We do, however, find merit in Dr. Barnes’s contention that the trial court erroneously reduced Dr. Granger’s child support by fifty percent during the summer months when he has physical custody. Review of the record indicates that this matter was not before the court on the date of the hearing. Rather, Dr. Gran-ger’s attorney and the trial court each clarified at the hearing that child support was not at issue on that date. Neither was evidence taken nor argument heard on the support issue on the date of the hearing. Accordingly, we reverse that portion of the trial court’s judgment addressing child support and remand for further proceedings on this issue.

Decree

For the foregoing reasons, the judgment of the trial court is affirmed insofar as it establishes the shared physical custody schedule between the parties. The judgment is reversed, however, insofar as it reduced the child support owed by Tommie Mack Granger during the summer period when he had physical custody of the minor child. Costs of this proceeding are assessed equally between the appellant, Stephanie W. Granger Barnes, and the appellee, Tommie Mack Granger. This matter is remanded for further proceedings.

AFFIRMED IN PART. REVERSED IN PART AND REMANDED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting in part.

hi agree with the majority’s reversal of the judgment addressing child support. I disagree with the remainder of the majority’s opinion.

The majority’s analytical approach is flawed. Treating this case as one involving custody and not visitation is incorrect. Visitation is the issue, not custody. All parties agree to this. Parental fitness to which Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), applies is not an issue between Dr. Barnes and Dr. Granger, and neither is attempting to modify the previous joint custody implementation order with respect to physical custody.

It is correct that La.Civ.Code art. 136 refers to visitation where a parent does not have custody or joint custody. Article 136, however, is meant to address entitlement to visitation. One’s entitlement to visitation does not necessarily foreclose any consideration of visitation pursuant to La. R.S. 9:335 which may encompass the extent of visitation where joint custody exists, as here. Visitation is a component of a joint custody implementation order under La. R.S. 9:335. If the majority’s rationale is followed, then every conceivable deviation would result in a renewed custody determination implicating different standards of review, depending upon whether the initial custody decree was a considered decree or a stipulated | judgment. For example, a change in a weekend visitation schedule or even a one hour visitation schedule would be regarded as a custody issue. Thus, in my view, La. R.S. 9:335 applies to a change in a visitation schedule where the issue of fitness is irrelevant to its determination.

Granger testified that the schedule that had been in place since August 2000 “has a lot of gray areas, and it’s caused a lot of confusion and problems.” He wants the visitation to be changed to conform with what he understands to be the generally prevailing schedule in Louisiana since Barnes had moved back to the state. Granger argued that Savannah had many activities she was involved in during the summer in Alexandria and the new schedule would be more convenient for Savannah.

Barnes contends that the present schedule has been in place since August of 2000 and the best interest of Savannah would be to maintain that schedule. Both parents testified that they are flexible with the visitation schedule. Savannah’s testimony clearly articulated that she wanted the schedule to remain the same because of its “flexibility.”

Flexibility would be lost, according to Savannah, if the summer visitation schedule was modified. Savannah stated that if there are activities being held in Alexandria, then her mother would forfeit her visitation and allow Savannah to remain with her father. Conversely, when Savannah wanted to remain for an extended time with Barnes during Granger’s time of visitation she would not be allowed. She testified that Granger’s “time is going to be his time” and her father would not permit her to stay in Shreveport any longer than she is entitled to, even if Savannah may have certain scheduled activities.

Savannah’s testimony, though not determinative, is impressive. When deciding how much weight is to be given to a minor child’s testimony, this court has |Robserved that “competency and maturity, not age, are the true determining factors.” Bandy v. Bandy, 07-849, p. 14 (La.App. 3 Cir. 12/5/07), 971 So.2d 456, 465. Savannah’s level of maturity and competency are well-reflected in the record. Journal entries written by Savannah about her relationship with Granger and the articulate nature of her testimony manifest that maturity. Although a child’s testimony is usually not given a lot of emphasis, I feel that under these circumstances and with the court’s observation of Savannah as an “excellent student,” the appropriate level of maturity and competency was reached.

A trial court’s findings will be given deference as long as the record suggests that its conclusions were reasonable. The record did not support the trial judge’s findings that Granger proved by a preponderance of the evidence that a change in the summer visitation schedule was in the best interest of the child. I would reverse this change in the summer visitation schedule.

Change in Transfer Time

The second issue focuses on the change of transfer time to 6:00 p.m. To determine the correctness of the trial court’s judgment, this court has to decide whether the trial judge abused his discretion in setting this transfer time.

Barnes argues that although she moved back to Louisiana, she still resides in Shreveport which has a two-hour travel time to Alexandria where Granger resides. According to Barnes, the appropriate time for transfer of Savannah should be 4:00 p.m. to allow travel time between Alexandria and Shreveport. Moreover, Barnes argues that each party typically has other minor children in their home, and the 6:00 p.m. transfer time does not allow them to coordinate their respective children’s schedules.

| /The trial court should have taken into consideration the geographical distance between the two parties’ homes when setting the new transfer time. If this time was followed, Savannah and the traveling parent would not arrive home until 8:00 p.m. at the earliest. The trial court abused its discretion and I would reverse this portion of the judgment.

For the foregoing reasons, I respectfully dissent.

      . Louisiana Civil Code Article 136 provides:
      A. A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.

      . Louisiana Revised Statutes 9:335 provides:
      A. (1) In a proceeding in which joint custody is decree, the court shall render a joint custody implementation order except for good cause shown.
      (2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
      da To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.
      (3) The implementation order shall allocate the legal authority and responsibility of the parents.

      . Article 131 provides that: “In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child."

      . With regard to Article 131, comment (d) indicates that:
      This Article should be followed in actions to change custody as well as in those to initially set it. An additional, jurisprudential requirement is imposed in actions to change custody decisions rendered in considered decrees, however. In such actions the proponent of change must show that a change of circumstances has occurred such that "the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or ... that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.” Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986). Accord: Smith v. Smith, 559 So.2d 48 (La.App. 4th Cir. 1990). This burden of proof is imposed by the jurisprudence as a means of implementing the best interest standard in light of the special considerations present in change of custody cases.


author: DECUIR, Judge. PAINTER, J.,

text:
    Deronza Thomas FOBBS v. Larry Marvell FOBBS.
    No. 09-219.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2009.

      Elvin C. Fontenot, Jr., Attorney at Law, Leesville, LA, for Plaintiff/Appellee Deron-za Thomas Fobbs.
    Andrew L. Randall, Jr., Attorney at Law, Shreveport, LA, for Defendant/Appellant Larry Marvell Fobbs.
    Larry Marvell Fobbs, Shreveport, LA, In Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

11 Deronza T. Fobbs and Larry M. Fobbs were married in 1989 and divorced in 2000. The couple had two children, both of whom have now reached the age of majority. After the youngest child reached age eighteen, Larry, in proper person, filed a motion to terminate child support payments. In response, Deronza filed a rule for contempt. At the contempt hearing in which Larry represented himself, the trial court found him in contempt and ordered him to pay to Deronza the sum of $12,350.90, plus all costs and $750.00 in attorney fees. Larry has appealed, and for the following reasons, we reverse the judgment rendered against him.

In June of 1999, Larry was ordered to make monthly child support payments in the amount of $903.00 retroactive to February 1, 1999. He was also required to maintain medical and dental insurance on the children during their minority and pay 50% of all medical and dental expenses not covered by such policies. Prior to Larry obtaining employment with the U.S. Post Office, a judgment of arrearage was rendered against him in December of 1999. Subsequent thereto, Larry’s paychecks were subject to an income assignment, and he purchased insurance coverage for his children through the Post Office.

The Fobbs’ older daughter reached the age of majority in September of 2004. One year later, Larry obtained a judgment reducing his child support obligation to $540.00 per month. On August 6, 2007, the Fobbs’ younger daughter turned eighteen. In February 2008, Larry filed a rule to terminate his support obligation, but he continued paying support until November 2008. In the meantime, Deronza responded to the February rule to terminate support by filing a rule for contempt in which she alleged that Larry failed to provide medical and dental insurance for the children for an unspecified period of time after the divorce and failed to reimburse 50% of her out-of-pocket medical expenses from 2001 through 2008. Deronza’s |2contempt pleadings, however, did not allege a total amount of arrearages and did not include an itemization of any past due payments.

The child support termination and contempt proceedings were heard at separate hearings in which Larry represented himself. At the contempt hearing, Deronza testified that Larry had not provided insurance on the children for perhaps two or two and a half years, offering no documentation of her claim that she incurred the insurance expense for some period of time. She also vaguely remembered that the children’s portion of the premiums she paid was probably about $140.00 per month; again, no verification was offered. Deronza also testified that Larry had never paid a judgment of arrearage which had been rendered against him in 1999, an issue which had not been raised in her rule for contempt or at any time between 1999 and 2008.

The documentary evidence submitted in support of Deronza’s claim for unreim-bursed medical expenses was likewise unreliable. It consisted of uncertified medical bills. One of the bills had handwritten additions, while others indicated insurance payments were pending and nothing was owed by the insured. A number of the bills listed services for Deronza rather than the children. Several of the invoices were clearly duplicitous. Bills for emergency transport, ER visits, and other services are dated after both children reached the age of majority. Some bills for dental services failed to show the name of the office or provider, and one in particular, showing an amount in excess of $6,000.00, appeared to be merely an estimate of proposed dental work. Most telling of all, no document submitted showed definitively that any amount had actually been paid by Deronza.

Representing himself, Larry attempted to cross-examine Deronza. His attempt failed, as the trial court granted opposing counsel’s objections as to the relevancy of most of his questions. Larry testified on his own behalf, admitting that he failed to laprovide insurance for the children for a ten-month period. He also agreed that he had not reimbursed Deronza for out-of-pocket medical expenses, explaining that he had never received any medical bills for the children and had never been sent a request for payment by Deronza, a fact which she admitted in her testimony. Nevertheless, Larry’s testimony indicated that because he realized he had not paid Deronza all that he owed her since their divorce, he chose to continue making child support payments after his youngest child turned eighteen. He asked the court to give him a credit for those payments against any amount he would be found responsible for at the contempt hearing.

The trial court considered Larry’s testimony to be an admission of his knowledge of unpaid medical expenses and insurance premiums. Therefore, the court held Larry in contempt and ordered the continuation of the $540.00 per month payments to Deronza until all amounts claimed by Der-onza were paid.

An action to recover past due child support in a contempt of court proceeding “requires the trial judge to determine that a party’s disobedience of the court’s support order constitutes the parent’s willful or deliberate refusal to perform an act which was within the power of the parent to perform.” Fink v. Bryant, 01-0987, p. 7 (La.11/28/01), 801 So.2d 346, 350. Alleging arrearages and unreim-bursecl medical expenses in her rule for contempt, Deronza had the burden of proving her claims by a preponderance of the evidence. “ ‘Proof by a preponderance of the evidence means that the evidence, taken as a whole, shows that the fact or cause sought to be proven is more probable than not.’ Crowell v. City of Alexandria, 558 So.2d 216, 217 (La.1990).” Rathborne v. Rathborne, 06-1518, 07-0870, p. 9 (La.App. 4 Cir. 12/3/08), 999 So.2d 816, 822. In determining whether Deronza met her burden of proof, we |4are compelled to review the trial court’s credibility determinations and factual findings under the standard of manifest error.

Given the numerous deficiencies in the evidence submitted by Deronza, we find manifest error in the trial court’s decision. First, the amount in arrears from the 1999 judgment was not properly prayed for and was not proven with specificity. In fact, Deronza ultimately testified, “I would have to calculate it and see if he has paid that in full.” Second, the unreimbursed medical expenses were not proven, as the evidence submitted in support thereof was unreliable and inconclusive, and no expenses were presented to Larry for payment. Third, regarding the cost of insurance premiums allegedly incurred by Deronza, we again find the evidence inconclusive. While Larry admitted that he failed to provide insurance for a ten-month period, Deronza only vaguely remembered paying for insurance for more than two years. Her claim was easily verifiable had she presented the appropriate records as evidence.

Finally, we find the trial court erred in failing to give Larry a credit for overpaid child support. Louisiana law allows a parent to unilaterally cease paying support when “the youngest child for whose benefit the award was made attains the age of majority or is emancipated relieving the child of the disabilities attached to minority. La. R.S. 9:315.22(B).” Chambers v. Saucier, 06-1290, p. 5 (La. App. 3 Cir. 2/7/07), 949 So.2d 662, 666. In this case, Larry’s youngest child reached the age of majority on August 7, 2007. Unrefuted evidence in the record shows that Larry continued to make monthly payments in the amount of $540.00 through November 2008. “When child support arrearages are alleged by a spouse, the burden of proving a credit against the obligation is upon the spouse alleging the credit.” Bourgeois v. Bourgeois, 09-106 (La.App. 5 Cir. 6/23/09), p. 5, 16 So.3d 431, 437. Larry met his burden of proof.

|fiIn summary, the evidence in the record before us does not support the contempt ruling against Larry. The trial court erred in finding Larry in contempt, in continuing child support payments, in denying Larry a credit for payments made in excess of his obligation, and in ordering Larry to pay attorney fees and all costs of the proceedings below.

Accordingly, the judgment appealed from is reversed in all respects. Costs of this appeal are assessed to Deronza T. Fobbs.

REVERSED.

PAINTER, J., dissents and assigns written reasons.

PAINTER, J.,

dissenting.

hi respectfully dissent from the decision of the majority herein.

The majority finds that the evidence submitted by Deronza was insufficient to support the contempt ruling against Larry. Specifically, it finds that she did not prove the amount of arrears from the 1999 support judgment with specificity, that she did not show either the amount of time that Larry failed to have insurance coverage on the children or the amount she spent on either insurance or their medical expenses. It further finds that the trial court erred in failing to give Larry credit for payments made after the children reached the age of majority.

I disagree and would defer to the trial court’s credibility based findings of fact.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-elearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted).

The trial court found that although Der-onza did not show the period of time for which Larry failed to provide insurance for the children, Larry admitted that he did |2not have insurance for a period of ten months. Since Larry did not contest Der-onza’s testimony that it cost her $140.00 per month to add the children to her health insurance coverage, I would find that the trial court did not err in awarding her an amount representing ten months of premiums at $140.00 per month. Further with regard to the medical expenses claimed, Larry had the opportunity at the hearing to question Deronza about those bills. He did not object to the bills or question Deronza about them. He admitted that he knew that he owed Deronza for medical bills.

Larry further admitted that he had not made any payments on the 1999 contempt judgment because he felt he did not owe it.

Additionally, Larry failed to introduce copies of the checks made after the second child reached the age of majority. Therefore, it is impossible to know to know whether checks were actually sent, to whom they were made out, how many such checks were sent, and whether there was any notation on the checks of the purpose for which they were sent. Larry had the burden of proving these payments, and, the trial court continued a prior hearing in order to give him time to obtain records, but he failed to do so. Under the circumstances, this court cannot while giving the trial court’s findings the deference required by the manifest error standard of review, say that the trial court erred in finding that Larry failed to carry his burden of showing payments.

Accordingly, I would affirm the judgment of the trial court.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Gregory L. HARTSHORN.
    No. 09-KA-47.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 10, 2009.
    Rehearing Denied Jan. 11, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Twenty-Fourth Judicial District, Palish of Jefferson, State of Louisiana, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Gregory L. Hartshorn, St. Gabriel, Louisiana, In Proper Person.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Judge.

12Pefendant/appellant, Gregory L. Hartshorn (a/k/a Roy Desilva) (“Harts-horn”), was charged in a bill of information by the Jefferson Parish District Attorney with carjacking in violation of La. R.S. 14:64.2. The State alleged that, on February 28, 2007, Hartshorn intentionally took a motor vehicle that belonged to John Romano (“Mr.Romano”) without Mr. Romano’s consent. The vehicle was in Mr. Romano’s lawful possession, and Harts-horn used force and/or intimidation to take the vehicle.

Hartshorn pled not guilty at arraignment. However, he later withdrew the not guilty plea and entered a plea of guilty as charged. Hartshorn was sentenced to ten years of imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence.

The State filed a multiple offender bill of information, charging that Hartshorn was a second felony offender. Hartshorn admitted the allegations of the |smultiple bill. The trial court vacated his original sentence and sentenced him as a second felony offender to ten years of imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence.

The trial court granted Hartshorn an out-of-time appeal, which is now before us for consideration.

Appointed appellate counsel filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Counsel has also filed a motion to withdraw as counsel of record. This brief is in accordance with Anders v. California.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by a brief referring to anything in the record that might arguably support the appeal so as to provide the reviewing court with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability and to assist the reviewing court in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.

The Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. However, an Anders brief must demonstrate by full discussion and analysis that appellate counsel has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a |4significant, adverse impact on shaping the evidence presented to the jury for its consideration.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate counsel.

Appellate counsel filed a prior brief in this matter asserting that he could not find any non-frivolous issues to raise on appeal. However, this Court found the brief that was submitted was not in conformance with the procedures outlined in Anders and Jyles. Accordingly, by Order of this Court rendered on April 22, 2009, counsel’s request to withdraw as counsel was denied, and he was ordered to submit a brief in compliance with Anders and Jyles. By that Order, we required counsel to include a discussion of the validity of Hartshorn’s guilty plea, his admission to being a second felony offender, and a discussion of the issues raised in his pro se briefs. This Court also ordered that, if after examination of the record, counsel concluded there were non-frivolous issues on which to base his appeal, he was to file a brief specifying the alleged errors.

In the second brief, appellate counsel asserts that, after a detailed review of the record, he still finds no non-frivolous issue upon which to base an appeal. He |Balso notes that there were no hearings or rulings on any motions or objections by trial counsel. He asserts that the facts were straightforward and sufficient. He points out that the ten-year sentence Hartshorn received was in line with the plea agreement and was the mandatory minimum sentence for a second felony offender. Finally, counsel concludes that the sentence did not seem excessive under the circumstances.

Appellate counsel does note that the trial court failed to advise Hartshorn of the mandatory minimum two-year sentence at hard labor he faced for the carjacking offense but believed the error to be frivolous. He contends that Hartshorn was told the maximum sentence he faced and that he would be sentenced to ten years without benefits pursuant to the multiple bill. Counsel concludes it would be unreasonable to believe that, had Hartshorn been told the minimum sentence he could receive for the crime charged, that such information would have influenced his plea bargain decision.

Appellate counsel also noted that, when Hartshorn pled guilty, he was advised of his right to a jury trial, his right to confront his accusers, and his privilege against self-incrimination. He concludes that Hartshorn’s guilty plea and admission to being a habitual offender were valid and without error. However, he recognizes that a line on the multiple offender plea form regarding being forced, coerced, or threatened to enter a guilty plea was not initialed, but he discounts this by noting that, if this is an error, it is harmless, because in the plea colloquy Hartshorn was asked in open court if anyone used force, intimidation, coercion, or promise of reward to force the guilty plea, and he responded negatively.

Further, appellate counsel notes that the bill of information appears to be in order, that the minutes indicate Hartshorn was present for all the court proceedings, | fiand that he had the presence of an attorney at every step of the proceedings. Finally, he requests an error patent review.

In a May 11, 2009 letter, the State informed this Court that, after reviewing the record, including the original and supplemental briefs filed by counsel and the original and supplemental pro se briefs filed by Hartshorn, it did not intend to file a response brief.

We have conducted a through review of the record and find that appellate counsel’s representations are correct. Further, we note that Hartshorn pled guilty as charged to carjacking and then admitted to being a second felony offender as alleged in the multiple bill. When a defendant pleads guilty, he normally waives all non-jurisdietional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. Additionally, an unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the multiple offender hearing.

Because we find that appellate counsel has fully complied with the order of this Court, and for other reasons that follow, we hereby grant the motion to withdraw as counsel.

PRO SE BRIEF ASSIGNMENTS OF ERROR

Hartshorn has filed three pro se briefs in this matter. However, the third brief is untimely in accordance with Uniform Rules, Courts of Appeal, Rule 2-13. Therefore, this opinion will only address the errors assigned in the first two briefs.

|7In both briefs, Hartshorn asserts that he was denied due process because his guilty plea was not voluntary or knowing. He states that he did not know the nature of the charges against him or the consequences of the guilty pleas.

Hartshorn also challenges his sentence, arguing that the trial court imposed an illegal sentence on both the initial charge and the enhanced multiple bill.

In his final assignment, Hartshorn requests a review of the record for errors patent.

VALIDITY OF GUILTY PLEA

In his argument regarding the validity of the guilty plea, Hartshorn’s allegations include that he was not informed of the mandatory minimum sentence in the carjacking charge, that the court failed to allow him to plead to the multiple bill allegations, and that he did not have an understanding of the consequences of his guilty sentence. He also argues the State was not forced to prove the allegations of the multiple offender bill of information. We find no merit in these arguments for the following reasons:

Once a defendant is sentenced, only those guilty pleas which are constitutionally infirm may be withdrawn by appeal or post-conviction relief. In Hartshorn’s second supplemental pro se brief, he does request that he be allowed to withdraw his guilty plea and invoke his right to a jury trial.

A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept.

| /f he record shows that Hartshorn was advised of his right to a jury trial, his right of confrontation, and his privilege against self-incrimination. Hartshorn acknowledged that his counsel had advised him of these rights, and he indicated that he understood these rights. The trial judge explained that he wanted Hartshorn to convince him that Hartshorn understood what he was doing by pleading guilty and, therefore, would explain the nature of the crime to which he was pleading, as well as the consequences of the guilty plea. The trial judge told Hartshorn to speak up if he had any questions or did not understand something. The trial judge stated he would answer any questions Hartshorn may have. The judge ascertained that Hartshorn was thirty-seven years old and had a tenth-grade education.

The judge then advised Hartshorn that he was pleading guilty to a carjacking, which occurred on February 28, 2007. Hartshorn indicated that he understood the guilty plea was his decision and that no one could force him to plead guilty. He denied that anyone used any force, intimidation, coercion, or promise of reward against him or a member of his family to force him to plead guilty.

The judge informed Hartshorn that, if his guilty plea was accepted, he would be sentenced to ten years at hard labor without benefit of parole, probation, or suspension of sentence. The judge then clarified that the maximum sentence that could be imposed was twenty years at hard labor and by law the sentence had to be served without benefit of parole, probation, or suspension of sentence. Hartshorn indicated that he understood this. The judge also informed Hartshorn that the State was filing a multiple bill, charging him as a second felony offender. The judge advised him of the penalty he faced as a second felony offender. The judge stated |9that the minimum would be ten years, and the maximum would be forty years of imprisonment. He advised as follows:

I’m going to give you the same ten years. Okay. I’m going to technically have to say, “I vacate the sentence given on this one,” and then re-sentence you under the multiple bill, and I’m going to give you the same ten years. I’m not going to up it. I’m not going to change it to twenty or thirty or forty. I’m going to keep it at ten.

Hartshorn indicated that he understood this.

The trial judge then explained the Boy-kin rights to Hartshorn as required by law, and that he would be waiving rights by pleading guilty. Hartshorn acknowledged, after the discussion of each right, that he understood both the nature of the right and the fact that, by pleading guilty, he was waiving the right.

Hartshorn indicated that he understood that, by pleading guilty, he was telling the court he did commit the crime for which he was pleading guilty. The State then provided a factual basis for the plea. Thereafter, defense counsel and Hartshorn both indicated that they read and signed the waiver of rights form. Hartshorn agreed that he initialed all of the paragraphs of the form. The trial judge accepted the guilty plea, stating the following:

I am entirely satisfied the defendant was aware of the nature of the crime to which he has pled guilty, the defendant did, in fact, commit said crime, understands the consequences of said plea of guilty, has made a knowing, intelligent, free, and voluntary act of pleading guilty to the above mentioned crime. There is a factual basis for the acceptance of this plea. I, therefore, accept the defendant’s plea of guilty.

The trial judge then sentenced Hartshorn to ten years of imprisonment at hard labor ■without benefit of parole, probation, or suspension of sentence.

Thereafter, Hartshorn entered an admission to the allegations in the multiple offender bill of information. The State used the carjacking charge as the | munderlying conviction and a prior conviction for possession of hydrocodone in violation of La. R.S. 40:967(C).

After a complete review of the record, we find the trial judge properly advised Hartshorn of his right to a habitual offender hearing and his right to remain silent. Hartshorn stated he understood those rights and wished to waive them.

The trial judge explained that, as a second felony offender, he faced a sentencing range of ten to forty years and that he would be sentenced to ten years. Harts-horn indicated that he understood this. The trial judge confirmed that Hartshorn and his counsel had gone over and signed the form and accepted the guilty plea as being knowingly, intelligently, freely, and voluntarily made. The judge found that Hartshorn was a second felony offender, vacated the previous sentence, and sentenced Hartshorn as a second felony offender to ten years at hard labor without benefit of parole, probation, or suspension of sentence.

Because he stipulated to the allegations in the multiple bill, Hartshorn is barred from asserting on appeal that the State failed to produce sufficient proof at the multiple bill hearing. The record shows that Hartshorn was fully aware that he was entering a plea of guilty to a charge of carjacking. The facts were presented by the State and the elements of this crime are straightforward. We find no merit in this argument.

The completed multiple bill waiver of rights form signed by Hartshorn contained the penalty range to which he was exposed and the sentence he would receive. The form reflects Hartshorn admitted to being a second felony offender and was advised of his rights to a hearing and to remain silent.

|uIn this case, it is clear that the trial judge carefully explained all rights to Hartshorn and made certain that Harts-horn understood those rights and the consequences of a guilty plea before accepting both the plea on the carjacking charge and the plea on the multiple offender bill as being knowingly and voluntarily made.

Further, the trial judge also explained Hartshorn’s right to an appeal if he chose to go to trial. Hartshorn agreed that he understood that, by pleading guilty, he could not assert allegations of defects.

After consideration of the record in this matter, we find nothing to support Harts-horn’s argument that his plea in either the carjacking charge or the multiple offender charge was unknowing and/or non-voluntary.

SENTENCE

Hartshorn argues that the sentence imposed was not as agreed upon in the plea agreement. We disagree.

Specifically, Hartshorn argues that he was not informed of the mandatory minimum sentence and that he was not informed he was pleading to a “crime of violence” when he pled guilty to the carjacking charge. He also argues that he pled guilty with the understanding that he would receive a ten-year sentence, with eligibility for parole and good time credit. Hartshorn asserts that his counsel told him the double bill would expose him to greater punishment in the future if he committed another crime.

Hartshorn is precluded from seeking review of his sentence imposed in conformity with a plea agreement. This Court has consistently recognized that La. |12C.Cr.P. art. 881.2 A(2) precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed.

There is nothing in the record to support Hartshorn’s allegations that he was promised parole eligibility and good time credit in his enhanced sentence.

As previously discussed, the record is clear that Hartshorn was informed, and indicated he understood, that the sentencing range for a second felony offender on the multiple bill is ten to forty years. He was also informed that he would receive ten years. We note that Hartshorn was not specifically told that the ten-year sentence on the multiple offender charge would be served without benefit, and the trial judge did not specify that it would be at hard labor. However, Hartshorn was informed that the original sentence on the carjacking charge was to be served at hard labor without benefits. Further, when sentencing was imposed on the multiple offender plea, the trial judge informed Hartshorn that the enhanced sentence would be “the same ten years.”

Although the trial judge did not specifically tell Hartshorn that the minimum sentence on the carjacking charge was two years, the prosecutor read the sentencing provisions aloud in court during the procedure in answer to specific questions Hartshorn had about the sentence and the plea agreement.

The record does not show that Hartshorn was promised “good time” eligibility as part of his plea agreement or that the State has violated the terms of the plea agreement. The waiver of rights form, the commitment, and the guilty plea transcript show the trial judge instructed Hartshorn that, if he pled guilty to the carjacking charge, he would be sentenced to ten years of imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Hartshorn was told he would receive credit for time served. He indicated he understood and |13accepted those terms. Further, the trial court was not required to inform Hartshorn of minimum sentences relating to good time or parole as affected by the classification of the crime as a crime of violence.

Hartshorn does not cite to anything in the record that indicates “good time” eligibility was part of the plea agreement, nor is there any mention of “good time” in the guilty plea documents or the Boykin colloquy.

In any case, it appears the promise of “good time” would not constitute a “lawful cause” under contract law, since the trial court did not possess the authority to authorize “good time” eligibility for Hartshorn. The trial court, with certain exceptions, has no role in determining eligibility for diminution of sentence. The statute governing such credit is directed exclusively to the Department of Corrections.

To the extent that Hartshorn argues he counsel’s incorrect advice and inducements forced him to plead guilty and constituted ineffective assistance of counsel, we find that claim cannot be properly considered by this Court in the context of this appeal. Generally, a claim of ineffective assistance of counsel is most appropriately addressed through a post-conviction relief application, rather than on appeal, so as to afford the parties an adequate record for review.

Consequently, we find the sentence was imposed in accordance with the plea agreement. Accordingly, we find no merit in this argument.

ERRORS PATENT REVIEW

We have reviewed the record for errors patent and found none that require corrective action by the Court.

| , ¿Accordingly, we affirm Hartshorn’s convictions and sentence. Further we grant defense counsel’s motion to withdraw as counsel.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). See also, State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam).

      . McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 438-39, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

      . State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam).

      . State v. Bradford, 95-929, 95-930 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . Id.

      . State v. Jyles, supra.

      . State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

      . State v. Schaefer, 97-465 (La.App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

      . State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Id.

      . The commitment also reflects Hartshorn was advised of his Boykin rights.

      . La. R.S. 15:529.1(D)(1)(a) requires that the defendant be advised of the specific allegations contained in the habitual offender bill of information and his right to a formal hearing at which the State must prove its case. Implicit in this requirement is the additional requirement that the defendant be advised of his constitutional right to remain silent. State v. Johnson, 432 So.2d 815, 817 (La.1983); State v. Bell, 03-217 (La.App. 5 Cir. 5/28/03), 848 So.2d 87, 90.

      . State v. Washington, 05-211 (La.App. 5 Cir. 10/06/05), 916 So.2d 1171, 1173.

      . State v. Moore, 06-875 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 46.

      . See, La. R.S. 15:574.4(B); State v. Roe, 05-116 (La.App. 3 Cir. 6/01/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

      . State v. Mitchell, 08-629 (La.App. 5 Cir. 1/13/09), 7 So.3d 744, 752

      . Id.

      . State v. Burbank, 07-125 (La.App. 5 Cir. 10/30/07), 971 So.2d 1173, 1180, writ denied, 07-2287 (La.4/25/08), 978 So.2d 364.


author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana In The Interest of B.D.
    No. 2009-CA-0432.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2009.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Alyson Graugnard, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Appellant.
    Pascale Belizaire Watson, Juvenile Regional Services, Inc., New Orleans, Louisiana, for Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR.).
   JAMES F. McKAY III, Judge.

hOn February, 12, 2009, the defendant, B.G., while a student at Carver High School, was charged by petition in Orleans Parish Juvenile Court with allegations of delinquency by violating one count of simple battery, relative to La. R.S. 14:35, and one count of disturbing the peace, relative to La. R.S. 14:103. On March 9, 2009, a pre-trial hearing was held wherein the trial coui*t dismissed the charges against B.G. pursuant to La. Ch.C. art. 876.

There are no other facts in the record nor have any pertinent facts concerning the underlying scenario been placed in the record for this Court to review.

As its sole basis for dismissal of the charges against the defendant the trial court stated in its reasons for judgment the following:

Take as many appeals as you want. I’m going to dismiss every school based offense that does not involve a major act of violence. This is a school based offense. It should be resolved in schools and not on the Court’s docket. The Recovery School District, The Orleans Parish School Board, N.O.P.D., State Board of Elementary Secondary Education, and The Orleans Parish Juvenile Court, last year, created and the BESE Boai'd adopt a uniform student rights and responsibility hand book that spelled out what would happen with school based offenses. That policy has not been followed in this incidence and therefore, the Court dismisses this matter. Note the State’s objection.

[2The State argues that the trial court abused its discretion in dismissing the charges against the defendant pursuant to La. Ch.C. art. 876. We agree.

Art. 876. Dismissal of petition

For good cause, the court may dismiss a petition on its own motion, on the motion of the child, or on motion of the petitioner. The court shall dismiss a petition on the motion of the district attorney.

“Good cause” is determined on a case-by-case basis and must be fully supported in the record. State ex rel. R.G., 2006-1625 (La.App. 4 Cir. 7/18/07), 963 So.2d 475, 476-477; State In Interest of M.B., 97-0524, p. 2 (La.App. 4 Cir. 11/19/97), 703 So.2d 146, 147. The Juvenile Court is vested with broad discretion in determining whether a case should be dismissed for good cause. State ex rel. T.N., 2000-1593 (La.App. 4 Cir. 5/23/01), 789 So.2d 73.

In the case sub judice the trial court’s reason for dismissing the petition was based upon “the uniform student rights and responsibility hand book”. Based on the record presented to this Court there is no acknowledgement that there was any action taken by the school. Neither was this Court, by way of a court record, provided with any authority to determine what the actual procedure is or what procedure would or should be used to implement a policy based on “the uniform student rights and responsibility hand book”. A simplistic dismissal using the handbook as the authority has no legal basis and does not meet the threshold requirement of “good cause” to dismiss the charges against the defendant.

We find based on the applicable law and jurisprudence that the trial court has failed to provide a legally sufficient reason for the dismissal of the petition and as such has abused its discretion. Accordingly, we reverse the judgment, vacate the dismissal of the petition and remand the matter for further proceedings consistent with this opinion.

REVERSED, VACATED AND REMANDED.


author: PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Kelly P. REGIS.
    No. 2009-KA-0806.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana/Appellee.
    John Harvey Craft, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   PATRICIA RIVET MURRAY, Judge.

_JjIn this criminal case, the defendant, Kelly Regis, seeks review of his conviction and sentence for attempted possession of cocaine with intent to distribute. On appeal, Mr. Regis raises two issues: (1) whether the trial court erred in denying his motion to disclose the confidential informant’s identity; and (2) whether the jury instruction under La.C.Cr.P. art. 782, which in a non-capital case allows a non-unanimous jury (ten of twelve) to convict, resulted in an unconstitutional jury verdict. We find the trial court did not abuse its discretion in denying Mr. Regis’ motion to compel disclosure of the informant’s identity. We further find the jury instruction under Article 782 did not result in an unconstitutional jury verdict. Nonetheless, the record contains one patent sentencing error. We thus affirm Mr. Regis’ conviction, amend his sentence, and affirm the amended sentence.

STATEMENT OF THE CASE

In October 2007, Mr. Regis was charged by bill of information with possession of cocaine with intent to distribute, a violation of La. LR.S. 40:967(A)(1). In November 2007, he was arraigned and entered a plea of not guilty. In March 2008, the district court denied Mr. Regis’ motion to suppress evidence and found probable cause to hold him for trial. Also in March 2008, Mr. Regis filed a motion to compel disclosure of a confidential informant’s identity. The district court denied the motion. In April 2008, the district court granted Mr. Regis’ motion to sever his case from that of his co-defendant, Shatoney Hales. In April 2009, a twelve-person jury found Mr. Re-gis guilty of the lesser included offense of attempted possession of cocaine -with intent to distribute. The district court sentenced him to eight years at hard labor, but without benefit of parole, probation, or suspension of sentence for the first two years. This appeal followed.

STATEMENT OF THE FACTS

In August 2007, Detective Christian Varnado, Lieutenant Mark Mornay, and other New Orleans Police Department (“NOPD”) officers participated in the execution of a search warrant for an apartment located at 1561 Iberville Street. The warrant was obtained based on numerous citizen complaints and information received from a confidential informant regarding narcotics trafficking occurring at that apartment. According to the affidavit to secure the warrant, the informant made two controlled drug buys from Mr. Regis while under continuous surveillance of the investigating officers. The informant was familiar with Mr. Regis and Ms. Hales because he had made drug purchases from them in the past. The informant had been used thirty times in the past to investigate drug activity.

| sWhen the officers arrived to execute the warrant, the targets of the investigation — Mr. Regis and Ms. Hales — were standing on the front porch. During the search, the takedown team detained Mr. Regis and Ms. Hales outside of the apartment. As a result of the items found in the search, Mr. Regis and Ms. Hales were arrested.

Detective Varnado, who was a member of the N.O.P.D. Major Case Narcotics Unit and a part of the entry team, testified that he systematically searched the apartment, which had three upstairs bedrooms. In the third upstairs bedroom, he found an unidentified woman and her infant; the woman explained that she was temporarily residing in the apartment with her infant. In the first upstairs bedroom, Detective Varnado found clothing and shoes matching the physical characteristics of individuals Mr. Regis’ and Ms. Hales’ sizes. On this basis, he identified that room as Mr. Regis’ and Ms. Hales’ shared bedroom. In that room, he found on top of a dresser a medicine bottle containing 114 Xanax pills; two Louisiana identification cards, one belonging to Ms. Hales and the other belonging to Mr. Regis; an envelope with Mr. Regis’s name on it; and Mr. Regis’ photograph. The identification card and the envelope belonging to Mr. Regis reflected a different address than the searched premises. No utility bills in Mr. Regis’ name were found in the apartment.

Inside an otherwise empty kitchen cabinet, Detective Varnado found a box of Good Sense sandwich bags. Inside the box were not only plastic baggies, but also a B.30 gram rock of cocaine wrapped in plastic. According to Detective 14Varnado, the rock “was larger than what is typically found on a street level user.” Next to the box, he found a piece of plastic the same size as the piece of plastic that was wrapped around the rock of cocaine. In the cabinet he also found six .357 magnum bullets.

Detective Varnado testified that based on his personal experience he believed the cocaine found in the apartment was not intended for personal use, but rather was intended for distribution. He provided three reasons for his belief. First, a $10 rock, which is the lowest form usually bought by users, is “point one” gram; thus, the 3.30 rock of cocaine found in the box could be broken down and possibly cut into thirty-three pieces. Second, plastic sandwich bags, such as those found in the cabinet, are typically used to house crack cocaine in different states: larger states and smaller states to be distributed. (The plastic bags are tied off tight at the end and cut.) Third, the piece of plastic that was found next to the box was the same size and shape as the plastic that housed the 3.30 gram rock of cocaine found in the box.

None of the evidence seized was submitted for fingerprint identification. Detective Varnado explained that no fingerprint tests were conducted on the sandwich bag box or plastic baggies because, in his experience, fingerprint tests on these surfaces are never successful.

Shortly after the warrant was executed, Lieutenant Mornay, the supervisor of both the takedown and entry teams, arrived on the scene. Detective Varnado informed him that cocaine had been located in a kitchen cabinet and that a woman |sand her infant had been located in an upstairs bedroom. As a result of the outcome of the search, Lieutenant Mornay ordered the arrest of Mr. Regis and Ms. Hales for possession of cocaine with intent to distribute. Before Mr. Regis and Ms. Hales were arrested, Lieutenant Mornay informed them of their Miranda rights. The officers found in Mr. Regis’ front pants pocket a set of keys to the searched apartment and currency in the amount of $115.00. The currency was in small denominations: four $20 bills, one $10 bill, and five $5 bills. No drugs were found on either Mr. Regis or Ms. Hales. A black cell phone was seized from one of them. The apartment was leased to Ms. Hales. No weapons, razor blades, or baking soda were found in the apartment.

According to Lieutenant Mornay, Mr. Regis was asked if he would cooperate; and Mr. Regis initially indicated that he would. Mr. Regis admitted that he had been living in the searched apartment for six months. As noted, the keys to the apartment were found in his pocket. Mr. Regis told Lieutenant Mornay that he did not know anything about the cocaine or who owned it. Mr. Regis stated that they rented the apartment and thus anyone could have put the cocaine in the cabinet.

The parties stipulated to the criminalist’s expertise and that the criminalist would testify that the white rock seized from the searched apartment tested positive for cocaine.

\ «DISCUSSION

Errors Patent

A review of the record for errors patent reveals an error in Mr. Regis’ sentence. The district court sentenced him to a term of imprisonment at hard labor for eight years without benefit of parole, probation, or suspension of sentence for the first two years. La. R.S. 40:967(A)(l)(B)(4)(b) provides that a person convicted of possession of cocaine with intent to distribute shall be sentenced to serve a term of imprisonment at hard labor of not less than two years nor more than thirty years, with the first two years of said sentence being without benefit of parole, probation, or suspension of sentence; and may, in addition, be sentenced to pay a fine of not less than $50,000.00. Mr. Regis was convicted of the lesser included offense of attempted possession of cocaine with intent to distribute pursuant to La. R.S. 40:979(A), which provides:

[A]ny person who attempts or conspires to commit any offense denounced and/or made unlawful by the provisions of this Part shall, upon conviction, be fined or imprisoned in the same manner as for the offense planned or attempted, but such fine or imprisonment shall not exceed one-half of the longest term of imprisonment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

“There is no express statutory minimum sentence for being convicted of an attempt, and principles of lenity require that the statute be strictly construed.” State v. Callahan, 95-1331, p. 1 (La.3/29/96), 671 So.2d 903; see also State v. Brown, 00-2120 (La.App. 4 Cir. 12/19/01), 804 So.2d 863. Accordingly, Mr. Regis’ sentence must be amended to delete the prohibition denying him benefit of parole, probation, or suspension of sentence for the first two years.

17Disclosure of Confidential Informant’s Identity

By his first assignment of error, Mr. Regis contends that the district court’s denial of his motion to disclose the confidential informant’s identity violated his Sixth Amendment right to confrontation at the motion to suppress hearing and at trial.

As a general rule, the state has a privilege to withhold the identity of a confidential informant absent exceptional circumstances. State v. Broadway, 96-2659, p. 19 (La.10/19/99), 753 So.2d 801, 815. The privilege, however, is not an absolute one. The courts employ a balancing test to determine when the confidential informant’s identity must be disclosed to the defense. Id. (citing Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). “Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstance of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Roviaro, supra. Pursuant to this test, the public interest in protecting the flow of information must be balanced against the individual’s right to prepare his or her defense. Broadway, 96-2659 at p. 19, 753 So.2d at 815. The informant’s identity must be revealed when the accused establishes that disclosure is essential to his or her defense. Id. The accused, however, has the burden of “setting forth concrete reasons why identity of the informant is crucial to the defense.” Broadway, 96-2659 at pp. 19-20, 753 So.2d at 815. The district court has great discretion in deciding whether disclosure is warranted. Id.

The informant privilege is codified in La. C.E. art. 514. This article enumerates several exceptions to the general rule of privilege including when “[t]he party seeking to overcome the privilege clearly demonstrates that the interest |sof the government in preventing disclosure is substantially outweighed by exceptional circumstances such that the informer’s testimony is essential to the preparation of the defense or to a fair determination on the issue of guilt or innocence.” La. C.E. art. 514 C(3). When the state’s case shows the informer participated in the crime, the jurisprudence has implied that this factor is sufficient to establish “exceptional circumstances,” and the informer’s identity should be disclosed. In such cases, the informer does more than furnish a tip that enables the police to make an arrest. While working with the police, he takes part in the illegal transaction itself. See State v. Dotson, 260 La. 471, 505-506, 256 So.2d 594, 606 (La.1971); State v. Wolfe, 630 So.2d 872, 876-877 (La. App. 4th Cir.1993).

In this case, the district court denied Mr. Regis’ motion to compel disclosure of the informant’s identity. In its reasons for judgment, the district court relied on State v. Degruy, 96-1463 (La. App. 4th Cir.5/14/97), 696 So.2d 580, which held that the key to deciding this issue is the informant’s participation in the alleged criminal activity. If the informant did not participate in the crime with which the defendant stands charged, then the defense cannot compel disclosure. Id. Applying these principles, the district court reasoned that the state was not required to disclose the informant’s identity because the informant did not participate in the crime with which Mr. Regis was charged. The district court stated:

[T]he confidential informant’s involvement ends before the search warrant was executed. The informant has no involvement with the silver dollar sized rock of crack cocaine found within the home occupied by both defendants at the time the search warrant was executed. Apparently, the State’s case depends on the circumstances concerning the size of the rock found in a box in the pantry with baggies and no other food typically found in the pantry, as well as the cash and other evidence seized.

|flMr. Regis contends that the district court erred in finding that he was charged with distribution of a specific piece of cocaine — the rock of cocaine found in the apartment. In support, he points out that at trial the state offered the currency found on him — $115 in small denomination — as evidence of his intent to sell cocaine. Although the informant was not mentioned by either of the state’s two witnesses at trial (Detective Varnado and Lieutenant Mornay), Mr. Regis contends that the state’s witness, Lieutenant Mor-nay, implicitly referred to the sales to the informant by testifying that the currency found on Mr. Regis was “the proceeds from narcotic sales.” This argument, however, is not supported by the record. Lieutenant Mornay’s testimony regarding the currency was in response to a question regarding why the .police generally seize currency. Lieutenant Mornay’s testimony was that “[t]he money is proceeds from narcotics sales, small amounts of crack cocaine, is what we believed based on experience.” Lieutenant Mornay was not referring to any particular past sales by Mr. Regis; rather, he was explaining that the finding of currency in small denominations is an indicator of drug trafficking.

The record reflects that Mr. Regis was arrested and charged with possession of cocaine with intent to distribute based on the rock of cocaine and other evidence indicating narcotic trafficking — plastic baggies, piece of plastic, and currency in small denominations — found in executing the warrant for the apartment at which Mr. Regis resided. The informant in this case, albeit pivotal to obtaining a search |10warrant for the apartment, was not a participant in the crime for which Mr. Regis was charged. Under these circumstances, the defense is not entitled to compel disclosure. See Degruy, supra; State v. Thomas, 553 So.2d 980, 982 (La.App. 4th Cir.1989)(noting that a confidential informant’s “furnishing of information to police, which is used by them to obtain a search warrant, is not in itself an exceptional circumstance requiring disclosure”); State v. Badie, 510 So.2d 120 (La.App. 4th Cir. 1987).

Mr. Regis also contends that the informant’s identity was necessary to his defense because the informant’s testimony might have contradicted that of the officers. Merely alleging that contradictory testimony may be possible does not constitute “exceptional circumstances” or a “concrete reason” to disclose the identity of the confidential informant. No basis exists in this case to conclude that Mr. Regis’ rights were prejudiced by non-disclosure of the confidential informant’s identity. We thus find the trial court did not abuse its discretion in denying the motion to compel disclosure of the informant’s identity.

Non-unanimous jury verdict

Mr. Regis’ second assignment of error is that the jury instruction informing the jury that it did not have to reach a unanimous verdict to convict him was unconstitutional. We find this assignment of error unpersuasive for three reasons. First, a review of the record reflects that no contemporary objection was made to this jury instruction; thus, Mr. Regis arguably waived review of this claim on appeal. La. C. Cr. P. art. 841. Second, there is no indication in the record that the Injury's verdict in this case was less than unanimous. Third, the appellate courts that have addressed this issue, including this court, have rejected it. State v. Tillman, 08-0408, p. 25 (La.App. 4 Cir. 3/04/09), 7 So.3d 65, 78; State v. Smith, 09-100 (La.App. 5 Cir. 8/25/09), 20 So.3d 501 (collecting cases from all the circuits).

DECREE

The defendant’s conviction is affirmed. The defendant’s sentence is amended to delete that portion which denies the benefits of probation, parole, and suspension of sentence for the first two years; and, as amended, the defendant’s sentence is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED, AND AFFIRMED AS AMENDED.

      . Although Lieutenant Mornay acknowledged that the woman had full access to the apartment kitchen, the woman was cleared of any involvement in the drug sales and released.

      . Cocaine is a schedule II drug. Schedule 11(A)(4) of La. R.S. 40:964.

      . None of the other exceptions enumerated in La. C.E. art. 514 is relevant to the circumstances presented in this case.

      . Although the officers found an identification card and mail in Mr. Regis' name with a different address, Mr. Regis admitted to the officers that he had resided in the apartment for six months.