author: PITMAN, J.

text:
    William Alan PESNELL and Christopher Holder, Plaintiffs-Appellants v. Jill SESSIONS, Clerk of Court, Jennifer Bolden, Certified Digital Reporter, and the Judges of the 26th Judicial District Court: Michael O. Craig, Jeff R. Thompson, Jeff Cox, E. Charles Jacobs, Michael Nerren and Parker O. Self, Defendants-Appellees
    No. 52,646-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 22, 2019.
    THE PESNELL LAW FIRM, A.P.L.C., By: Billy R. Pesnell, J. Whitney Pesnell, W. Alan Pesnell, Counsel for Appellants, In Proper Person & Christopher Hatch
    JEFF LANDRY, Attorney General, Counsel for Appellees, Judges of the 26th Judicial District Court
    DAVID G. SANDERS, Assistant Attorney General, PATRICK R. JACKSON, Counsel for Appellee Jennifer Bolden, Certified Digital Reporter
    LANGLEY, PARKS & MAXWELL LLC, By: Glenn L. Langley, Julianna Petchak Parks, JAMES D. SOUTHERLAND, Counsel for Appellee Jill Sessions, Clerk of Court
    Before PITMAN, STONE, and BLEICH (Ad Hoc), JJ.
   PITMAN, J.

Plaintiffs-Appellants William Alan Pesnell and Christopher Holder appeal the trial court's judgment sustaining the exceptions of no cause of action filed by Defendants-Appellees Jill Sessions, Clerk of Court; Jennifer Bolden, certified digital reporter; and the judges of the 26th Judicial District Court: Michael O. Craig, Jeff R. Thompson, Jeff Cox, E. Charles Jacobs, Michael Nerren and Parker O. Self ("the Judges"). Sessions has filed a motion to dismiss for lack of jurisdiction and an exception of res judicata. For the following reasons, we grant Sessions's motion to dismiss and affirm the judgment of the trial court as to Bolden and the Judges.

FACTS

Holder was convicted of the second degree murder of his mother. On appeal, this court affirmed his conviction and sentence. State v. Holder , 50,171 (La. App. 2 Cir. 12/9/15), 181 So.3d 918, writs denied , 16-0092 (La. 12/16/16), 211 So.3d 1166, and 16-0056 (La. 12/16/16), 212 So.3d 1176. Holder's uncle opened the intestate succession of Holder's mother and asked that Holder be declared unworthy to inherit from his mother. The trial court granted a motion for summary judgment, finding Holder was convicted of the intentional killing of his mother. This court affirmed the judgment of the trial court. In re Succession of Holder , 50,824 (La. App. 2 Cir. 8/10/16), 200 So.3d 878, writ denied , 16-1694 (La. 12/16/16), 212 So.3d 1169.

On September 22, 2016, Pesnell and Holder filed against Defendants a petition to declare provision of public records law unconstitutional in substance and as applied, and to compel production of public record for inspection and testing. They claimed that persons who were present at Holder's criminal trial did not believe that the transcript of the trial was correct. They stated that an objection was missing from the transcript and language attributed to the prosecutor was not correct and that these substantive issues could alter the outcomes of the criminal and succession proceedings. They argued that they had a right to listen to, review and test the data file recording of the criminal trial ("the recording").

The petition detailed Pesnell's efforts to acquire the recording. He sent a letter to Sessions as the clerk of court and was advised to make the request to the court reporter. He requested the recording from Bolden, the court reporter, and received a response from Melissa Fox, the court administrator and senior staff attorney for the 26th Judicial District Court. Fox advised him that the request was not covered by the Public Records Law, citing La. R.S. 44:4(47) and the Listening to Recordings Policy of the 26th Judicial District Court ("the court's policy"). Pesnell then requested to listen to the recording pursuant to the court's policy, and Fox responded that Judge Nerren denied his request, informing him that any questions as to the content and form of the recording should be presented to the court of appeal.

Plaintiffs argued that La. R.S. 44:4(47) does not provide an applicable exception to the Public Records Law in this case and that the recording is a public record subject to public review. They contended that if La. R.S. 44:4(47) provides an exception in this case, then the statute is unconstitutional because it denies due process to litigants and denies public access to records of public events. Plaintiffs also found fault with the court's policy. They argued that Defendants should be ordered to turn over a copy of the recording or, in the alternative, that they should be allowed to review the recording for comparison to the transcript.

On October 17, 2016, the Judges filed an exception of no cause of action. They argued that because the Public Records Law does not apply to the recording sought, Plaintiffs have no right of access to it. They stated that Plaintiffs had no right to access the recording pursuant to the court's policy because the court denied permission. They contended that the recourse available to Plaintiffs is to obtain an order from the appellate court, not to sue the Judges. The Judges noted Plaintiffs' attempt to have La. R.S. 44:4(47) declared unconstitutional and responded that they have no interest in, or enforcement powers with respect to, the Public Records Law.

On November 2, 2016, Sessions filed an exception of no cause of action. She stated that, as clerk of court, she is the keeper of the written records of the trial, but not the keeper of, and does not have access to, the electronic recordings of the trial.

On November 18, 2016, Bolden filed an exception of no cause of action. She stated that she is not the custodian of the recording, that she has no discretion to secure the recording and that all of her duties are ministerial.

On November 28, 2016, Plaintiffs filed an opposition to the exceptions of no cause of action.

On December 13, 2016, the trial court filed a judgment maintaining the exception of no cause of action filed by Sessions and dismissing Plaintiffs' proceedings against Sessions.

On December 23, 2016, the trial court signed a judgment. It stated that Bolden is not a proper party defendant and dismissed Plaintiffs' claims against her. It found that the Judges are the custodians of the records sought but that pursuant to La. R.S. 44:4(47) and the court's policy, Plaintiffs have no right to the recording. Therefore, it found that no cause of action had been stated and dismissed Plaintiffs' claims under the Public Records Law. The trial court reserved for a later date the claims that La. R.S. 44:4(47) and the court's policy are unconstitutional.

On January 11, 2017, Plaintiffs filed a motion for new trial or rehearing as to the December 23, 2016 judgment and argued that the judgment was erroneous.

On March 3, 2017, Plaintiffs filed a motion to appeal the December 23, 2016 judgment.

On appeal, this court reversed the exceptions of no cause of action filed by Sessions, Bolden and the Judges and remanded the matter for further proceedings, i.e., a ruling on the constitutionality of La. R.S. 44:4(47) and for further relief if necessary. Pesnell v. Sessions , 51,871 (La. App. 2 Cir. 2/28/18), 246 So.3d 686.

On remand, a hearing was held on July 6, 2018, as to the constitutionality of La. R.S. 44:4(47). On August 18, 2018, the trial court signed a ruling and judgment sustaining the exceptions of no cause of action to the extent that they are based on La. R.S. 44:4(47). It found that Plaintiffs failed to prove that La. R.S. 44:4(47) is unconstitutional as applied to them and that their petition failed to state a cause of action. It noted that Plaintiffs emphasized their need for the recording based on due process and other constitutional rights. It found that a records custodian is prohibited from inquiring as to a person's reason for requesting public records under the Public Records Law and, therefore, applied La. R.S. 44:4(47) to Plaintiffs' request as it would be applied to any other member of the public's request. The trial court found that La. R.S. 44:4(47) validly serves to protect the constitutional privacy rights of all litigants. It explained that if an audio recording could be disclosed to any person requesting it, every comment picked up by the recording device, including whispered conversations between a defendant and his counsel or a sidebar conference with the judge, would become a public record. It assumed that this is why the official record of a court proceeding is a certified transcript, not an unedited, uncensored recording. It also found that La. R.S. 44:4(47) is not overly broad and that it conforms to the intent and purpose of the statute.

Plaintiffs appeal the August 18, 2018 judgment.

SESSIONS'S MOTION TO DISMISS

On February 22, 2019, Sessions filed, with this court, a motion to dismiss for lack of jurisdiction and an exception of res judicata. She noted that Plaintiffs did not timely file a motion to appeal the December 13, 2016 judgment in which the trial court granted her exception of no cause of action and dismissed Plaintiffs' proceedings against her. She stated that although this court did not have jurisdiction as to the December 13, 2016 judgment, it reversed the judgment in Pesnell v. Sessions , supra . She filed an application for rehearing; and, in response, Plaintiffs admitted that the judgment dismissing her from the action was final prior to the appeal of the other judgments, that she should not have been a party to the appeal and that her motion for rehearing should be granted. This court denied Sessions's motion for rehearing. She argued that as the December 13, 2016 judgment was not appealed within the appeal delays and is a final judgment, the decision is res judicata. Therefore, she contended that she should be dismissed from the instant appeal. On March 19, 2019, this court filed an order referring these matters to the merits of the appeal.

Plaintiffs did not file a motion to appeal the December 13, 2016 judgment within the time delays provided in La. C.C.P. arts. 2087 and 2123. Therefore, the December 13, 2016 judgment, which dismissed Plaintiffs' proceedings against Sessions, is a final judgment and conclusive between the parties. La. R.S. 13:4231.

Accordingly, we grant Sessions's motion to dismiss.

PLAINTIFFS' ASSIGNMENTS OF ERROR

Statutory Construction

In their first assignment of error, Plaintiffs argue that the trial court erred in dismissing the claims related to the statutory construction of La. R.S. 44:4(47). They contend that the recording is a public record. They state that the Public Records Law and provisions of the Louisiana Constitution that require a review and complete record of any criminal trial are to be construed liberally in favor of public access and that exceptions must be narrowly construed in favor of disclosure. Plaintiffs contend that the portion of La. R.S. 44:4(47)(a) that states that the exclusion applies to any such media used "to report the proceedings or for the purpose of transcribing into typewriting those portions of the proceedings required by law or by the court to be transcribed" means that the recording is excluded from disclosure until it is transcribed or reported. Plaintiffs argue that once the proceeding is transcribed or reported, there is no reason to limit access, as the contents are transcribed and certified. They state that this court should limit the exception to Plaintiffs' reading of the statute and order production of the recording.

The Judges argue that La. R.S. 44:4(47) is constitutional and that the recording sought by Plaintiffs is expressly excepted from being a public record. They contend that the legislature had rational reasons for enacting La. R.S. 44:4(47), i.e., to protect the physical medium of recording, to prevent the alteration of the recording and subsequent release to the public and the need to protect conversations picked up by the recording device, including those between attorney and client.

Bolden argues that La. R.S. 44:4(47) should not be construed to apply only until the recording has been transcribed but, instead, should not be time-limited.

La. R.S. 44:1(A)(2)(a) defines "public records" as the term is used in the Public Records Law as follows:

All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are "public records", except as otherwise provided in this Chapter or the Constitution of Louisiana.
(Emphasis added.)

La. R.S. 44:4(47)(a) provides an exception to La. R.S. 44(1)(A)(2) and states that the Public Records Law shall not apply:

To the physical medium or contents of any electronic storage device including any compact disc, digital video disc, jump drive, audio or video cassette tape, or any other type of electronic storage device, or to any shorthand or longhand notes or writings or stenotype paper tapes in the custody or under the control of a judge, clerk of court, official court reporter, deputy official court reporter, or certified electronic reporter and which are produced, made, or used by an official court reporter, deputy official court reporter, free lance reporter, or certified electronic reporter in any court of record of the state during any proceedings before that court to report the proceedings or for the purpose of transcribing into typewriting those portions of the proceedings required by law or by the court to be transcribed.

A review of La. R.S. 44:4(47) supports Defendants' argument that the recording is not a public record pursuant to the Public Records Law. This exception to the Public Records Law is not limited to the time before the recording is transcribed, as argued by Plaintiffs. To the contrary, the statute provides no time limitation to the exception to the Public Records Law. Although Plaintiffs contend that there is no reason to limit access to the recording once it has been transcribed, the trial court disagreed and noted that the exception in La. R.S. 44:4(47) protects the privacy of all litigants. We find that the trial court did not err in its interpretation of La. R.S. 44:4(47).

Accordingly, this assignment of error lacks merit.

Amendment by Statute

In their second assignment of error, Plaintiffs argue that the trial court erred in holding that the rights under La. Const. art. XII, § 3, may be freely amended by statute. They state that the trial court improperly relied on the notion that the legislature may amend the constitution at will and without regard for the purposes and meaning of that constitutional provision.

The Judges argue that the right of public access to public records is not a right classified as fundamental in constitutional law. Therefore, the legislature is empowered, by the constitution itself, to fashion exceptions to the general right of public access to government records.

La. Const. art. XII, § 3, states: "No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law ." (Emphasis added.)

The text of La. Const. art. XII, § 3, clearly authorizes the legislature to establish laws that provide exceptions to the right to observe the deliberations of public bodies and examine public documents. La. R.S. 44:4(47) provides such an exception.

Accordingly, this assignment of error lacks merit.

Constitutionality and Burden of Proof

In their third assignment of error, Plaintiffs argue that the trial court erred in failing to shift the burden of proof to Defendants as to the constitutionality of La. R.S. 44:4(47). In their fourth assignment of error, Plaintiffs argue that the trial court erred in dismissing their petition in light of the overlap of constitutional considerations under U.S. Const. Amend. I, V, VI and XIV and La. Const. art. I §§ 2, 7, 16 and 19. In their fifth assignment of error, Plaintiffs argue that the trial court erred in finding that they had failed to carry their burden of proof on the constitutionality of La. R.S. 44:4(47) and dismissing their claims.

The Judges argue that the burden of proof remained at all times on Plaintiffs, that it was Plaintiffs' burden to overcome the presumption of constitutionality and that La. R.S. 44:4(47) is constitutional.

Unless the fundamental rights, privileges and immunities of a person are involved, there is a strong presumption that the legislature in adopting a statute has acted within its constitutional powers. Bd. of Directors of Louisiana Recovery Dist. v. All Taxpayers, Prop. Owners, & Citizens of State of La. , 529 So.2d 384 (La. 1988). Therefore, the party challenging the statute bears the burden of proving it is unconstitutional. Krielow v. Louisiana Dep't of Agric. & Forestry , 13-1106 (La. 10/15/13), 125 So.3d 384 ; In re S.D. , 52,238 (La. App. 2 Cir. 5/23/18), 250 So.3d 1097. The burden of proof requires the attacking party to point out a specific constitutional provision that clearly prohibits the legislature from enacting the statute at issue. Rhone v. Ward , 39,701 (La. App. 2 Cir. 5/11/05), 902 So.2d 1258, writ granted, cause remanded , 05-1651 (La. 1/13/06), 920 So.2d 217, citing Pope v. State , 99-2559 (La. 6/29/01), 792 So.2d 713.

In Pesnell v. Sessions , supra , this court stated that, on remand, it was incumbent upon Plaintiffs to prove to the trial court that La. R.S. 44:4(47) is unconstitutional as applied to them. As the party challenging the constitutionality of La. R.S. 44:4(47), Plaintiffs bore the burden of proving its unconstitutionality, but they failed to overcome the presumption of constitutionality. As discussed above, the constitutional provision at issue, i.e., La. Const. art. XII, § 3, clearly allows the legislature to enact the statute at issue, i.e., La. R.S. 44:4(47). Therefore, the trial court did not err when it did not shift the burden of proof to Defendants. Further, it did not err in determining that Plaintiffs failed to meet their burden of proof as to the alleged unconstitutionality of La. R.S. 44:4(47).

Although Plaintiffs argue on appeal that La. R.S. 44:4(47) should be declared unconstitutional on its face, this court declines to make such a declaration. The trial court sustained the exceptions of no cause of action based on Plaintiffs' failure to prove that La. R.S. 44:4(47) is unconstitutional. Any opinion from this court regarding the constitutionality of La. R.S. 44:4(47) would constitute an advisory opinion, and appellate courts will not render advisory opinions from which no practical results can follow. See McChesney v. Penn , 29,776 (La. App. 2 Cir. 8/20/97), 698 So.2d 705.

Accordingly, these assignments of error lack merit.

The Court's Policy

In their sixth assignment of error, Plaintiffs argue that the trial court erred when it ignored the court's policy and, in effect, upheld the policy. They note that if La. R.S. 44:4(47) is constitutional, then there is no need for the court's policy.

The Judges argue that as La. R.S. 44:4(47) is constitutional and excludes the information requested by Plaintiffs as not being a public record, Plaintiffs have no legal enforceable right to review, listen or obtain a copy of the recording. They contend that the court's policy is a reflection of the court's inherent authority over court records.

In Pesnell v. Sessions , supra , this court remanded this matter for a ruling on the constitutionality of La. R.S. 44:4(47). In its August 18, 2018 ruling and judgment, the trial court did not address the court's policy and, instead, sustained Defendants' exceptions of no cause of action to the extent that they were based on La. R.S. 44:4(47). Any opinion from this court regarding the issue of the court's policy would constitute an advisory opinion, and appellate courts will not render advisory opinions from which no practical results can follow. See McChesney v. Penn , supra .

Accordingly, this assignment of error is not properly before this court for review.

CONCLUSION

For the foregoing reasons, we grant the motion to dismiss filed by Defendant-Appellee Jill Session, and we affirm the trial court's judgment sustaining the exceptions of no cause of action filed by Defendants-Appellees Jennifer Bolden and the Judges of the 26th Judicial District Court: Michael O. Craig, Jeff R. Thompson, Jeff Cox, E. Charles Jacobs, Michael Nerren and Parker O. Self. Costs of this appeal are assessed to Plaintiffs-Appellants William Alan Pesnell and Christopher Holder.

MOTION TO DISMISS GRANTED; JUDGMENT OF TRIAL COURT AFFIRMED AS TO BOLDEN AND THE JUDGES .

      Plaintiffs amended their petition to add the State of Louisiana as a defendant. The State filed an exception of lack of subject matter jurisdiction and no cause of action. The trial court granted the State's exceptions, and on appeal, this court affirmed the trial court's sustaining of these exceptions. Pesnell v. Sessions , 51,871 (La. App. 2 Cir. 2/28/18), 246 So.3d 686.

      The court's policy states:
      It is the position of the 26th Judicial District Court that no party, attorney or witness, or any other interested person, be allowed to listen to the playback of any recording of any court proceeding. Under extraordinary circumstances, with permission from the Court, exceptions can be made to hear excerpts of proceedings. If permission is granted, the court reporter should listen to the recording first to ensure that there is no audible conversation between attorney and client. Due to the sensitivity of the digital recording, conversations between counsel and client can potentially be audible on the recording, which playback of said conversation could potentially breach attorney/client privilege. This policy excludes judges and court staff that have to rely on the recording for preparation of documents, transcripts or subsequent court proceedings. However, the information gleaned from listening of recorded proceedings is to remain confidential.

      Sessions and Bolden both submitted briefs, but did not respond specifically to each of Plaintiffs' assignments of error.


source: Caselaw Access Project

author: CHEHARDY, C.J.

license: Public Domain

text:
    The STATE of Louisiana v. Nicolva A. HARMON
    NO. 19-KP-55
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2019
    COUNSEL FOR PLAINTIFF/RESPONDENT, THE STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Gretna, Joshua K. Vanderhooft
    COUNSEL FOR DEFENDANT/RELATOR, NICOLVA A. HARMON, Leloashia Taylor
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
   CHEHARDY, C.J.

Defendant, Nicolva Harmon, appeals her conviction and sentence for issuing a worthless check, in violation of La. R.S. 14:71. Upon supervisory review, we reverse defendant's conviction, vacate defendant's sentence, and remand.

Factual and Procedural History

According to the testimony elicited at trial, Harmon purchased an automobile from Ray Brandt Nissan in Harvey, Louisiana on January 27, 2017. However, on or about March 3, 2017, Harmon asked the employees of Ray Brandt Nissan to help her change her vehicle registration from Mississippi to Louisiana. Because the taxes and fees are higher to title a vehicle in Louisiana, Harmon agreed to pay the extra cost and signed check no. 1068 to Ray Brandt Nissan for $ 1,317.22 on March 3, 2017.

At trial, Craig Pesses, the Finance Director for Ray Brandt Nissan, testified that his company's records reflect that check no. 1068 was received on March 22, 2017. Pesses testified that the delay of over two weeks was purposeful, likely because the customer had asked the dealership to "hold" her March 3, 2017 check until a later date. After the check was presented to Harmon's bank, it was returned unpaid to Ray Brandt Nissan on March 28, 2017 for lack of sufficient funds in Harmon's checking account.

Thereafter, the dealership attempted to collect the debt by sending multiple demand letters via certified mail to no avail. On May 31, 2017, the dealership turned the matter over to the Jefferson Parish District Attorney's Office, which notified Harmon, through at least two certified mailings, of the worthless check and demanded payment of the debt on behalf of Ray Brandt Nissan. Harmon did not contact the Jefferson Parish District Attorney to pay the debt.

On August 24, 2017, the Jefferson Parish District Attorney filed a bill of information charging Nicolva Harmon, defendant-herein, with issuing a worthless check on March 3, 2017 to Ray Brandt Nissan in the amount of $ 1,317.22, in violation of La. R.S. 14:71. On November 2, 2018, the District Attorney's office amended the bill of information to charge defendant with issuing a worthless check in an amount less than $ 1,000.00.

On December 17, 2018, a bench trial commenced. After considering the testimonial and documentary evidence, the trial court rendered a verdict of guilty as charged. On January 14, 2019, the trial court sentenced defendant to imprisonment in parish prison for six months, suspended that sentence, and placed defendant on "in house probation" for twelve months but delayed execution of sentence until April 11, 2019. The trial judge ordered restitution of $ 999.00 and forty hours of community service. Defendant filed this application for supervisory review.

Law and Analysis

In her writ application, defendant raises five assignments of error, which we pretermit as our review reveals a defect in the prosecution that requires reversal. In one of her assignments of error, defendant argues that the trial court erred in holding a bench trial when a jury trial is required by law. Defendant is correct.

In this matter, defendant was originally charged with issuing a worthless check in the amount of $ 1,317.22, which, based on the penalty, would be a felony offense. However, on November 2, 2018, the State amended the bill of information to reduce the charge to issuing a worthless check in an amount less than $ 1,000.00, presumably to reduce the matter to a misdemeanor offense.

However, the law in effect at the time of the commission of the offense determines the penalty. State v. Sugasti , 01-3407(La. 6/21/02), 820 So.2d 518, 521-522 (footnotes omitted); State v. Harris , 02-873 (La. App. 5 Cir. 1/28/03), 839 So.2d 291, 292-94, writ denied , 03-0846 (La. 10/31/03), 857 So.2d 474. On the date of the commission of this offense, March 3, 2017, La. R.S. 14:71 read, in pertinent part:

A. (1)(a) Issuing worthless checks is the issuing, in exchange for anything of value, whether the exchange is contemporaneous or not, with intent to defraud, of any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has not sufficient credit with the bank, or other depository for the payment of such check, draft, or order in full upon its presentation.
* * *
(c) This provision shall apply to a check, draft, or order for the payment of money given for a motor vehicle when such payment is conditioned upon delivery of documents necessary for transfer of a valid title to the purchaser.
* * *
(f) For purposes of this Section, any check, draft, or order tendered for payment of any tax, fee, fine, penalty, or other obligation to the state or any of its political subdivisions shall be considered issuing a check, draft, or order in exchange for anything of value.
C. Whoever commits the crime of issuing worthless checks, when the amount of the check or checks is one thousand five hundred dollars or more, shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
D. When the amount of the check or checks is five hundred dollars or more, but less than one thousand five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than five years or may be fined not more than two thousand dollars, or both.
E. When the amount of the check or checks is less than five hundred dollars, the offender shall be imprisoned for not more than six months or may be fined not more than five hundred dollars, or both. If the offender in such cases has been convicted of issuing worthless checks two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years or be fined not more than one thousand dollars, or both. (Emphasis added).

The right to trial by jury in felony and certain misdemeanor cases is protected by both the federal and state constitutions. See U.S. Const. amend. VI ; La. Const. art. I, §§ 16, 17. Article 1, § 17 of the Louisiana Constitution provides, in pertinent part, that:

A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict.... Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable.

Hence, at the time of the offense, the law in effect provided that the charge of issuing worthless checks of an amount up to $ 1,000.00 was punishable "with or without hard labor, for not more than five years or [a fine of] not more than two thousand dollars, or both." Here, the State attempted to reduce the charge to a misdemeanor by reducing the amount of the check to "less than $ 1,000.00," but the amended bill of information still charged defendant with a felony offense under the law in effect on the date of the commission of the offense.

Here, because the State presumed that the charge was a misdemeanor, the matter proceeded to a bench trial. Thus, the defendant was not advised of her right to a jury trial and, could not have knowingly and intelligently waived that right.

Consequently, we find that defendant has been denied her fundamental right to a trial by jury or, at least, her right to waive that jury. Accordingly, we reverse defendant's conviction, vacate the sentence, and remand the matter for further proceedings.

CONVICTION REVERSED; SENTENCE VACATED; REMANDED .

      Defendant's assignments of error are: first, the trial court erred in denying defendant-applicant's motion to quash the bill of information upon finding that the amount of a check is not a necessary element to establish a violation of La. R.S. 14:71 ; second, the trial court erred in denying defendant-applicant's motion to quash the bill of information when the bill of particulars, together with the bill of information showed that defendant-applicant did not commit the offense charged; third, the trial court erred in holding a bench trial when a jury trial is required by law; fourth, the trial court erred in finding defendant-applicant guilty of issuing a worthless check in an amount less than $ 1,000.00 when the evidence reflected the check totaled $ 1,317.22; and, finally, there was not sufficient evidence to find that defendant-applicant issued a worthless check in violation of La. Rev. Stat. 14:71.

      The statute was amended, effective August 1, 2017, and currently states in pertinent part:
      C. (3) When the amount of the check or checks is more than one thousand dollars, but less than five thousand dollars , the offender shall be imprisoned, with or without hard labor, for not more than five years, or may be fined not more than three thousand dollars, or both.
      (4) When the amount of the check or checks is less than one thousand dollars , the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both . (Emphasis added).

      Pursuant to La. C.Cr.P. art. 780, a jury trial waiver "shall be by written motion filed in the district court" no later than 45 days prior to the trial date, although the 45-day time requirement may be waived by the State. Waiver of the right to a jury trial is never presumed. State v. McCarroll , 337 So.2d 475, 480 (La. 1976) ; State v. Herrera , 98-677 (La. App. 5 Cir. 2/10/99), 729 So.2d 75, 80.


author: WICKER, J.

text:
    Darrin GUIDRY v. Rhonda Sutton GUIDRY
    NO. 18-CA-639
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, DARRIN GUIDRY, Henri P. Dufresne
    COUNSEL FOR DEFENDANT/APPELLANT, RHONDA SUTTON GUIDRY, Nghana L. Gauff
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst
   WICKER, J.

Appellant, Rhonda Sutton Guidry, seeks review of a considered custody decree that granted joint custody of the minor child to the parents but provided that appellant's visitation period with the child be supervised. For the following reasons, we find that, under the facts of this case, the trial judge did not abuse his discretion in entering the custody judgment at issue.

FACTUAL AND PROCEDURAL BACKGROUND

The parties in this matter, Darrin Guidry and Rhonda Guidry, divorced on July 13, 2016. This litigation concerns the physical custody of the parties' one minor child, C.G. During the pendency of the divorce proceedings, on November 2, 2015, the parties entered into a stipulated consent judgment providing, in addition to other matters, that the parties would share joint custody of C.G., with Rhonda designated as domiciliary parent and with Darrin granted visitation every Wednesday evening and every other weekend from 6:00 p.m. on Friday through 5:00 p.m. on Sunday.

On November 16, 2017, Darrin filed a "Rule for Ex Parte Order, Rule to Change Custody, and Modify Child Support," contending a material change of circumstances occurred and that sole custody in his favor would be in C.G.'s best interest. In his rule, Darrin alleged that Rhonda's live-in boyfriend, Cody Kinler, was a known drug dealer recently arrested for drug possession. He also alleged his belief that Rhonda may be using illicit drugs and that she had been recently fired from her job for failing a drug screening test. The rule further alleged that C.G. was struggling in school and had been recently suspended.

On November 21, 2017, Darrin filed a petition for protection from abuse on behalf of C.G., alleging that a police search of Rhonda's residence revealed drug paraphernalia in the home and resulted in the involvement of child services. He further asserted that he feared Rhonda was under the influence of drugs while in C.G.'s presence. He stated that he did not want his son exposed to police activity and did not think Rhonda could handle C.G. while under the influence of drugs. The trial court denied the TRO and set the matter for hearing for December 4, 2017.

On November 27, 2017, Darrin filed a second rule for ex parte temporary sole custody alleging that Rhonda recently bailed her boyfriend, Cody Kinler, out of jail following his arrest on drug-related charges and allowed him to move back into the residence with C.G. Darrin further alleged that Rhonda abuses pills while in C.G.'s presence and associates with friends who are drug abusers and dealers while in the child's presence. Attached to his second rule for ex parte temporary sole custody, Darrin also attached the affidavit of Brad Alexander.

Mr. Alexander attested that he dated Rhonda for 2.5 years and has been living with Rhonda "on and off" for 1.5 years. He attested that he attended Thanksgiving dinner at Rhonda's home on November 23, 2017, and observed Rhonda take multiple Oxycodone pills throughout the day and observed Rhonda's sister and her boyfriend "snorting drugs" while C.G. was present in the home. Mr. Alexander further attested that Rhonda has allowed her sister and her sister's boyfriend, who are known drug users, to live in the home and that C.G. has been "kicked out" of his room and forced to sleep on the couch since June, 2017.

Mr. Alexander further attested that he has observed Rhonda buy and use oxycodone, Xanax, xanbar, seboxone, and use methamphetamines in the home. He further asserted that Rhonda has sold C.G.'s prescribed ADHD medication, rather than administering it to him, and that "crystal meth and heroin" have been sold out of the home. He further alleged that Rhonda does not make the minor child bathe or brush his teeth regularly and has made threats of physical violence against Darrin and his wife if they were to interfere with her custody of C.G.

The trial court again denied the ex parte order but set the matter for hearing for December 4, 2017. On that date, the parties and court executed a stipulated consent form, wherein the parties agreed to share joint custody of C.G., with Darrin designated as the domiciliary parent and with Rhonda exercising visitation every other weekend. The stipulation stated it was without prejudice to either party pending a hearing on Darrin's rule to modify custody.

On March 21, 2018, the parties entered into a Consent Judgment. The Consent Judgment awarded the parties joint custody of the minor child with Darrin designated as the domiciliary parent and with Rhonda exercising visitation every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. It further provided that Rhonda would submit to a 9-panel hair follicle test and a urine screening test by the 5th day of each month for six consecutive months and that she would provide a copy of the drug testing results to Darrin through his counsel.

Subsequently, Rhonda and Darrin each filed motions to modify custody. In his motion, Darrin sought sole custody of C.G. Darrin contended that Rhonda still abused drugs and failed to prove that she was not dependent on drugs through negative drug screening reports, as required in the parties' March 21, 2018 Consent Judgment. In her rule to modify custody, Rhonda alleged that she was no longer drug dependent and sought additional physical custody of C.G.

The matter proceeded to trial on August 9, 2018. Amy Laiche, the assistant principal of Lutcher High School where C.G. attends high school and the former assistant principal at Paulina Elementary School, where C.G. attended Elementary School, testified at trial. Ms. Laiche has known C.G. in some capacity since pre-kindergarten and interacts with him daily.

Ms. Laiche testified that C.G. is in need of a 504 plan, has had a 504 plan for approximately two years, and absolutely needs structure in his life. Although Ms. Laiche testified concerning C.G.'s 504 plan and academic and behavioral needs, she did not discuss the medical or behavioral reason for C.G.'s 504 plan nor his medical diagnosis. She stated that when she has a concern regarding C.G.'s academics or behavior, Darrin is the parent who comes to the school to meet with her to discuss the child's 504 plan. She testified to one occasion when she invited Rhonda to attend a meeting, but that she has not seen Rhonda at a meeting during the current school year. She specifically testified to one occasion when she left messages for Rhonda and sent a letter home through C.G. and could not reach Rhonda. Ms. Laiche acknowledged there is a notation in the school's records that in mid-December 2017, shortly after he began spending significantly less time with his mother, C.G. was hospitalized because he threatened to harm or kill himself. However, Ms. Laiche ultimately concluded that during the period of time in which Darrin had more frequent physical custody of C.G., she noticed a positive change and a "huge difference in both his behavior and his academics."

Sergeant Troy Johnson, Dean of Students at Lutcher High School, testified that he has known C.G. for approximately one year. Sgt. Johnson testified that C.G. needs tough leadership and discipline, stating that "[i]f you give him too much rope, he's a follower...he's not a bad kid, but he needs strong leadership." Sgt. Johnson admitted that the school's policy with male students is to call the father first, stating "I never really called mom....that's what we do a lot of the times with the boys. We call the father because you seem to get that result and so that's what I did." Sgt. Johnson described Darrin as "a stern man. So I know that's tough sometimes on young men." Sgt. Johnson testified that he noticed an improvement behaviorally after Darrin became more involved and had more physical custody of C.G. Sgt. Johnson acknowledged that C.G. "cares deeply" for his mother but that he overall saw improvement in C.G.'s behavioral and academic performance when in his father's custody.

Denise Ryland, Rhonda's second cousin, testified at trial that she lives blocks away from Rhonda and has also known Darrin for 25-30 years. She testified that she has cared for C.G. in some capacity since he was 5 years old when she watched him over an entire summer. Ms. Ryland testified that C.G. has been diagnosed with Asperger's and can be a difficult child who does not like change and struggles in social situations. She testified that after his parent's divorce, C.G. became very angry and would visit with her at her house to vent about the divorce and to play with Ms. Ryland's daughter who is close in age to C.G. She testified that she is close with C.G. and she is there to act as an independent third-party for C.G. to communicate with about all aspects of his life.

Ms. Ryland came to Rhonda's house when Child Protective Services was called to the home following the drug activity in November 2017. She has talked with C.G. about it and more recently about his current living and custody situation. She testified that C.G. does not want to stay at his father's house because he is frightened of his father. Ms. Ryland explained that because of C.G.'s Asperger's diagnosis, he needs to be handled a little differently than other children and he is frightened of his father's loud voice and discipline. C.G. has recently expressed to her his desire to spend more time with his mother.

Ms. Ryland testified that in the six months prior to trial, she has been to Rhonda's house three or four times each month. She allows her child to go to Rhonda's home and has never felt like her child was in danger or unsafe when at Rhonda's home. She testified that she knows about the prior drug activity but that "it would be a surprise" if Rhonda tested positive for drugs since the November incident.

Darrin testified that when he and Rhonda initially separated in the summer of 2016, he had physical custody of C.G. every other weekend. He testified that he learned that sometime in 2016, Rhonda withdrew C.G. from his elementary school without his knowledge and enrolled C.G. in a virtual academy, where all work is done from home on a laptop. He further testified that he later learned that Rhonda was doing C.G.'s homework and/or hiring her niece, Lexi, to do the work for C.G. The summer after 6th grade, after Darrin learned that C.G. was in danger of failing 6th grade, Darrin asked for more time with C.G. to work on his discipline issues, which he believed would then lead to improved academics as well. During that summer of 2017, the parties switched to a week to week custody arrangement without court interference or involvement.

Darrin admitted that he does not communicate well with Rhonda, including not providing her with information pertaining to doctors' appointments or school activities. He further admitted that he did not initially inform Rhonda when C.G. was brought to the emergency room for psychiatric evaluation on one occasion and committed to River Oaks Hospital for psychiatric care. Darrin agreed that prior to Rhonda's drug issue, the parties did co-parent fairly well, but that he will not tolerate any drug use. He further acknowledged that, close in time to trial, Rhonda asked to spend more time with C.G., which he denied.

Darrin testified that he had no idea Rhonda was involved in any kind of drug activity until November 15, 2017. He first learned from neighbors and his church community that Rhonda was hanging out with "trash" and involved in drugs. He testified that he has driven by her home and can see the "unreputable" traffic and people coming in and out of her home. Darrin testified that he does not sleep well when his son is with his mother during every other weekend visitation because he is concerned for his safety and well-being. Darrin testified that as long as Rhonda is hanging out with the same "unreputable" people who are known drug users, she "has the potential of, at any time, falling off of that edge and getting right back where she was." Darrin asked the court to order that any time C.G. spends with Rhonda at this time should be supervised.

Since Darrin has had more physical custody of C.G., he is involved in extracurricular activities: fishing, hunting, and "livestock" shows, where he is "showing three pigs this year." Darrin bought C.G. a lawnmower at age 13 and has allowed him to cut family members' lawns for money. Darrin testified that he has set up a bank account for C.G. and he holds a percentage of the money C.G. makes cutting grass and doing other chores to save in an account for C.G.

Rhonda testified that her divorce from Darrin was very difficult for C.G. and that he has been in therapy since the parties separated in 2015. She testified that C.G. has Asperger's and is a highly intelligent child. She further testified that she lives by herself with her 3 dogs but that her 14-year-old niece stays at her home on occasion. When questioned concerning male visitors, Rhonda testified that a man named Cody Kindler slept at her home twice when her son was not present and that Brad Alexander, with whom she was in a relationship, slept at her house every other weekend for approximately 2 years when her son was not in the home.

Rhonda testified that she relocated C.G. from Paulina Elementary to the virtual academy in 2016, after recommendation from Paulina Elementary. She indicated the virtual academy had smaller class sizes and more one on one attention for her child. She acknowledged that she did not tell Darrin that she moved the child from school until after it was done. She testified that Darrin does not inform her of anything going on in C.G.'s life and that Lutcher High School has refused to give her any information because she is not listed as an emergency contact on C.G.'s school paperwork. Rhonda further denied that anyone from Lutcher High, including Ms. Laiche, ever contacted her in the most recent school year or left a message to inform her of any meetings for any academic or behavioral issues.

Concerning drug use, Rhonda admitted that she experimented with meth in 2017. She testified that she used drugs with Cody Kindler in her home but that since December 2017, she has been in both outpatient and inpatient treatment centers and receives psychiatric care every 6 weeks. She contended that she has taken only one oxycodone without a prescription and regularly takes Xanax, which she is prescribed. She testified that she has not ingested methampetamines or oxycodone since November 15, 2017.

At trial, Rhonda introduced into evidence the hair follicle and urine drug screening test results for three different dates. A December 5, 2017 report reflects that Rhonda tested positive for various substances, including Amphetamines, Methamphetamines, Oxycodone and Barbiturates. The April 17, 2018 hair follicle drug screening report reflects that Rhonda tested positive for Amphetamines, Methamphetamines, Barbituates, and Butalbital. One negative drug screening report, dated June 25, 2018, was also introduced into evidence. Rhonda claims that she also took urine tests in the months of April and May, which she testified were both negative, but those reports were not introduced into evidence nor presented to opposing counsel prior to trial.

On September 17, 2018, the trial court issued a judgment granting the parties joint custody, with Darrin as the designated domiciliary parent and with Rhonda executing visitation every other weekend from 9:00 a.m. on Saturday to 5:00 p.m. on Sunday. The trial judge ordered that Rhonda's visitation every other weekend be supervised by Denise Ryland. The trial court further ordered the matter "set for review" for a hearing on November 5, 2018.

DISCUSSION

On appeal, Rhonda contends that the trial court erred in modifying the consent judgment between the parties and in granting her only supervised visitation with C.G.

It is well settled that the paramount consideration in any determination of child custody is the best interest of the child. E. R. v. T. S. , 18-286 (La. App. 5 Cir. 10/11/18), 256 So.3d 551, 557, writ denied , 18-1843 (La. 2/18/19), 264 So.3d 451 ; see also Tracie F. v. Francisco D. , 15-1812 (La. 3/15/16), 188 So.3d 231, 238-39. This applies not only in actions setting custody initially, but also in actions to change custody. Tracie F. , 188 So.3d at 239.

Where a prior custody decree is a stipulated judgment, the party seeking to modify the existing custody arrangement must prove: 1) there has been a material change in circumstances affecting the welfare of the child since the original custody decree was entered; and 2) that the proposed modification is in the best interest of the child. Theriot v. Theriot , 15-311 (La. App. 5 Cir. 10/14/15), 177 So.3d 759, 762 (quotations omitted); Evans v. Lungrin, 97-541 (La. 2/6/98), 708 So.2d 731, 738 ; Shaffer v. Shaffer, 00-1251 (La. App. 1 Cir. 9/13/00), 808 So.2d 354, 357, writ denied, 00-2838 (La. 11/13/00), 774 So.2d 151. The trial court has vast discretion in custody determinations. When considering the safety and best interest of the child, ordering supervised visitation is within the trial court's vast discretion. Coleman v. Coleman , 47,080 (La. App. 2 Cir. 2/29/12), 87 So.3d 246, 254.

In the present case, the prior custody decree was a stipulated judgment, wherein the parties consented to the custodial arrangement. Thus, in order to modify the prior custody arrangement, Darrin was required to show a material change in circumstances affecting C.G.'s well-being and that modification of the custody arrangement was in C.G.'s best interest.

Under the unique circumstances of this case-where Rhonda suffered with substance abuse issues and failed to comply with a consent judgment requiring her to undergo six, consecutive months of drug screenings, and where school administration testified that C.G. had greatly improved under Darrin's care and structure-we find the trial court did not manifestly err in its determination that Darrin met his burden to prove a material change in circumstances. Further, given the positive evidence of prior drug abuse and Rhonda's failure to show consecutive months of negative drug screening reports, we find that the trial judge did not abuse his discretion in modifying Rhonda's visitation time with C.G. or in ordering that her visitation be supervised at this time and set for review. We further find that-because the ultimate goal of joint custody is "frequent and continuing contact" with each parent-there is nothing to prevent Rhonda from seeking to modify the custody arrangement or to lift the supervision restriction as she progresses through her rehabilitation and treatment and has shown consistent rehabilitation over a period of time. See La. R.S. 9:335.

Accordingly, for the reasons provided herein, the trial court judgment is affirmed.

AFFIRMED

      The December 4, 2017 stipulation also provided that the parties would undergo hair follicle drug testing.

      The March 21, 2018 consent judgment also terminated any prior child support judgment previously in effect and provided that no third parties could be present during the child's visitation with Rhonda.

      The school records reflect that C.G. has an autism spectrum disorder. It is concerning to this Court that neither Darrin nor any of the school personnel who testified discussed C.G.'s medical diagnosis or what care and extra measures are taken, under Darrin's care, to ensure that C.G. is receiving the professional help he may need to thrive in light of his diagnosis.

      Ms. Laiche testified that in December 2017, C.G.'s records indicated that Rhonda was no longer authorized to pick him up from school.

      Ms. Laiche testified that C.J.'s academic grades improved during this period of time: from Quarter 1 to Quarter 4 of the school year, the child went from a 60F to an 86B in social studies; a 60F to an 88B in Science; a 60F to a 72D in Math; and a 63F to a 68D in English.

      He testified that a parent meeting with the psychiatrist was scheduled at some point and that he notified Rhonda of that meeting, but that she did not attend. He acknowledged that Rhonda did attend two subsequent appointments during that hospital stay.

      A recorded cell phone video taken during the time period C.J. was enrolled in the virtual academy was introduced into evidence. Darrin alleges the video shows Rhonda doing C.J.'s homework for him, thereby supporting or enabling the child's lazy habits. Rhonda testified that the video shows that she was learning C.G.'s assignments or class material to be able to help her son with homework. She also testified that she asked her 14-year-old niece to help C.G. with homework.

      Rhonda also tested positive for Alprazolam, which she testified is Xanax, a prescribed medicine.

      The June 25, 2018 report did reflect a positive result for Alprazolam, which Rhonda testified reflects her prescription for Xanax.