text:
    STATE of Louisiana v. John ESTEEN, III
    NO. 18-KA-392
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLANT, JOHN ESTEEN, III, Bertha M. Hillman
    DEFENDANT/APPELLANT, JOHN ESTEEN, III, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and John J. Molaison, Jr.
   MOLAISON, J.

Defendant appeals his sentences, which were imposed by the trial court following remand from the Louisiana Supreme Court. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

This case comes before us for the second time on appeal.

Defendant, John Esteen, was convicted by a jury in the Twenty-Fourth Judicial District Court on October 27, 2000, of two counts of possession of cocaine over 400 grams (Counts 2 and 5), conspiracy to possess cocaine over 400 grams (Count 8), and attempted possession of cocaine over 400 grams (Count 10). On November 3, 2000, the trial judge sentenced defendant to 50 years imprisonment at hard labor on Count 2, 50 years on Count 5, 25 years on Count 8, and 25 years on Count 10. All sentences were ordered to run consecutively, for a total of 150 years of imprisonment at hard labor. On November 9, 2000, the State filed a habitual offender bill of information, alleging that defendant had pled guilty on April 15, 1992, to possession of cocaine over 400 grams in violation of La. R.S. 40:979 and 40:967(F) in case number 92-083, Division "K," of the United States District Court for the Eastern District of Louisiana. After the hearing on December 11, 2000, the trial judge found defendant to be a habitual offender, vacated the Count 8 sentence of 25 years and sentenced the Defendant to 25 years of imprisonment at hard labor. On appeal, this Court affirmed defendant's convictions and sentences and we remanded the matter to the trial court with an order to send written notice of the prescriptive period for filing an application for post-conviction relief. State v. Esteen , 01-879 (La. App. 5 Cir. 5/15/02), 821 So.2d 60, writ denied , 02-1540 (La. 12/13/02), 831 So.2d 983.

Defendant filed a motion to correct illegal sentences in 2016, in which he argued that he was entitled to be sentenced under the more lenient penalty provisions that were enacted by the legislature in 2001 La. Acts 403, which the legislature later declared in La. R.S. 15:308(B)"shall apply to the class of persons who committed crimes, who were convicted, or who were sentenced" in accordance with enumerated provisions, including those pursuant to which relator was sentenced on three counts. The trial court denied defendant's motion on February 2, 2016, and this Court subsequently denied writs. Esteen v. State , 16-158 (La. App. 5 Cir. 4/05/16) (unpublished writ). Thereafter, in State ex rel. Esteen v. State , 16-0949 (La. 1/30/18), 239 So.3d 233, (per curiam), the Louisiana Supreme Court held that because three of defendant's sentences were for terms of imprisonment no longer authorized by law, and the more lenient penalty provision of La. R.S. 15:308(B) applied retroactively, defendant's "remedy is by resentencing in the district court pursuant to his motion to correct illegal sentences." Id. at 238.

Following remand, the trial court resentenced defendant on March 22, 2018. For Counts 2 and 5, defendant was sentenced to 30 years at hard labor for each count, with the sentences to run consecutively. He was given credit for time served pursuant to La. C.Cr.P. 880 from the date of arrest. On Count 10, the trial court sentenced defendant to a 15-year consecutive sentence at hard labor with credit for time served. The 25-year sentence for Count 8, previously imposed for defendant's status as a multiple offender, was further ordered to run consecutively to the sentences for Counts 2, 5 and 10. Defendant objected to the sentences.

On April 18, 2018, defendant filed a motion for reconsideration of sentence. However, defendant also filed a motion for appeal, which was granted on May 2, 2018. At the June 21, 2018 hearing on defendant's motion for reconsideration, the trial court declined to rule on defendant's motion upon finding that it no longer had jurisdiction, in light of defendant's pending appeal. Thereafter, on July 18, 2018, this Court ordered the trial court to rule on defendant's motion for reconsideration of sentence, which was then set for a hearing on August 1, 2018. The trial court denied defendant's motion without reasons on August 1, 2018, and defense counsel noted his objection.

ASSIGNMENTS OF ERROR

Defendant's sole counseled assignment of error on appeal is that his newly imposed sentences are constitutionally excessive. In his two pro se assignments of error, defendant argues that his new sentence fails to comply with "Act. 403" and that the trial court erred in failing to make the findings required by La. C.Cr.P. art. 883 to run his sentences consecutively.

LAW AND ANALYSIS

The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Nguyen , 06-969 (La. App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied , 07-1161 (La. 12/7/07), 969 So.2d 628. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. Nguyen , 958 So.2d at 64. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the sense of justice. State v. Taylor , 06-839 (La. App. 5 Cir. 3/13/07), 956 So.2d 25, 27, writ denied , 06-0859 (La. 6/15/07), 958 So.2d 1179 (citing State v. Lobato , 603 So.2d 739, 751 (La. 1992) ; State v. Pearson , 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 655-56 ).

In defendant's original appeal, we detailed the facts of his underlying convictions. The evidence at trial showed, in summary, that defendant was first identified as a drug trafficker in the local area by the FBI drug squad task force for New Orleans. Through continuing surveillance of defendant, it was learned that he sold large volumes of cocaine, with up to two kilos involved in a single transaction. Defendant also traveled to Houston, Texas for the purpose of purchasing cocaine to distribute. Upon arrest, defendant admitted his role as a cocaine distributor. During defendant's original sentencing, the trial court stated:

Stand up, Mr. Esteen. Mr. Esteen, I remember this trial vividly because it was so short a time ago.
You destroyed your own life and you destroyed many other individuals' lives in the course of what came out in this trial. God knows how many more lives you would have destroyed if you were on the street yet.
I don't see any redeeming factors concerning your involvement in [the] sale of the quantity of drugs I've seen. I've seen four kilos of hard cocaine in this court which is a quantity you don't see very often. I can't have any sympathy for the sentence I am going to impose on you or plight.

Esteen , 821 So.2d at 77. In defendant's first appeal, this Court reiterated the trial court's findings upon affirming defendant's sentences that "the Defendant is a serious drug dealer and failed to present any mitigating circumstances to warrant lesser sentences." Id.

According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. In reviewing a sentence for excessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court's sense of justice, while recognizing the trial court's wide discretion. Nguyen , 958 So.2d at 64. In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen , 03-1205 (La. App. 5 Cir. 2/23/04), 868 So.2d 877, 880. However, there is no requirement that specific matters be given any particular weight at sentencing. State v. Tracy , 02-0227 (La. App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied , 02-2900 (La. 4/4/03), 840 So.2d 1213.

For its part, the trial court in this case expressed an understanding of the Louisiana Supreme Court's directive on remand:

THE COURT:
I have been given clear instructions from the Supreme Court that I am ordered to sentence him within the terms of the sentencing range by 15:308B.
...
The Court will note that I was not here for the trial. I am simply performing the task that the Supreme Court has ordered me to do and have chosen to follow the manner in which the previous judge has seen fit to sentence the defendant.

Thereafter, the trial court complied with the Supreme Court's order by imposing sentences that were in accord with the legislature's interest of fairness in sentencing, as declared in La. R.S. 15:308(B), and which also had the effect of ameliorating defendant's circumstances, resulting in a shorter term of incarceration overall.

In the instant appeal, defendant does not argue that his newly imposed sentences are outside of the applicable statutory range. Nor does defendant contest the consecutive nature of his sentences, which were properly imposed in this case pursuant to La. C.Cr.P. art. 883 because the underlying offenses occurred on different dates and at different locations. See, State v. Young , 05-795 (La. App. 5 Cir. 3/14/06), 926 So.2d 652. The focus of defendant's argument regarding the alleged excessiveness of his sentence is on the rehabilitative measures defendant has achieved since being incarcerated, and his assertion that the trial court did not comply with La. C.Cr.P. art. 894.1 when it failed to take into account his achievements in prison while resentencing him.

While the record reflects that defendant orally objected to his sentences and filed a written Motion for Reconsideration of Sentence, he did not specifically raise the issue of a lack of compliance with La. C.Cr.P. art. 894.1. A motion to reconsider sentence must set forth specific grounds upon which the motion is based. La. C.Cr.P. art. 881.1. The failure to state the specific grounds upon which a motion to reconsider is based precludes a defendant from raising issues relating to statutory errors or deficiencies, such as compliance with C.Cr.P. art. 894.1 and limits a defendant to review of the sentence for constitutional excessiveness only. State v. Hunter , 11-787 (La. App. 5 Cir. 4/24/12), 94 So.3d 797, 800.

Here, defendant received the maximum sentence for each count. In similar cases, both this Court and other Louisiana appellate courts have affirmed maximum sentences. For example, in State v. Furgerson , 34,344 (La. App. 2 Cir. 3/2/01), 781 So.2d 1268, writ denied , 01-1102 (La. 3/22/02), 811 So.2d 921, the defendant was convicted of possession of cocaine in violation of La. R.S. 40:967(F)(1)(b) (in excess of 200 but less than 400 grams) and received the maximum sentence at that time of thirty years at hard labor. The appellate court found no abuse of the trial court's sentencing discretion in light of the defendant's history, felonious past, crime of conviction, and the harm done to society. Likewise, in State v. James , 13-666 (La. App. 5 Cir. 2/12/14), 136 So.3d 113, the defendant was convicted of possession of cocaine in an amount in excess of 200 grams but less than 400 grams and was sentenced to the maximum sentence at that time of thirty years at hard labor. This Court, citing Furgerson , found that the trial court did not err in sentencing the defendant, noting that the defendant had prior drug convictions, that he did not abide by home incarceration rules, and that the State did not file a multiple bill.

In the instant case, as noted above, the evidence admitted at trial indicates that defendant was a major drug dealer. The offenses involved large amounts of cocaine being distributed during separate incidents between two states involving various individuals. At the original sentencing hearing, the trial judge spoke of how defendant had destroyed the lives of numerous individuals and that the large amount of cocaine involved was not something he commonly saw. The multiple bill reflects that defendant had a prior federal drug conviction in 1992. Past records of drug offenses weigh heavily in the decision to uphold the imposition of maximum sentences. State v. Jones , 33,111 (La. App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied , 00-1467 (La. 2/2/01), 783 So.2d 385.

In light of the foregoing, we cannot say that defendant's sentences are constitutionally excessive. The record shows that the trial court complied with the Louisiana Supreme Court's order and imposed sentences that were within the statutory sentencing ranges in accordance with the more lenient penalty provision of La. R.S. 15:308(B). This assignment is without merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). We found no errors which require correction.

DECREE

Accordingly, for the foregoing reasons, defendant's sentences are affirmed.

AFFIRMED

      The official record was supplemented with the August 1, 2018 transcript and minute entry.

      The assignments are discussed together because they are related.

      In his concurrence in State ex rel. Esteen v. State , 239 So.3d at 243, Justice Crichton recognized "the logistical challenges this opinion may pose." To that point, in cases where re-sentencing is an issue, it is inevitable that situations will arise where the judge who imposed the original sentence will not be the same judge who re-sentences a defendant. In that circumstance, the resentencing judge may find himself or herself in a position where the only information before it on remand is a cold record. However, in similar circumstances, Louisiana courts have found it permissible for the re-sentencing judge to adopt the reasons set forth by the original trial court. For example, in State v. Neville , 572 So.2d 1161 (La.App. 1 Cir.1990), writ denied , 576 So.2d 46 (La.1991), after a federal habeas court found that the defendant's state court convictions for both armed robbery and attempted first-degree murder violated double jeopardy, the State dismissed the robbery count and the defendant was re-sentenced by a trial judge who "was not the original sentencing judge and that he had never seen defendant before." Id. at 1165. The trial court increased defendant's sentence from the original sentence of 20 years to a new sentence of 34 years and, on appeal, the defendant claimed the new trial judge was acting vindictively. In affirming the newly imposed sentence and finding no vindictiveness on the part of the resentencing judge, the First Circuit took into the re-sentencing judge's statement on the record that "it was his intent to impose a sentence which would be consistent with the original sentencing judge's intent." Id.

      At the resentencing hearing, defense counsel introduced Exhibit 1, which was referred to as "mitigation" material about defendant for the court to consider. The exhibit contains information about defendant's previous military service, letters of recommendation, certificates of achievement, and landscaping and horticulture licensure.


source: Caselaw Access Project

author: GRAVOIS, J.

license: Public Domain

text:
    STATE of Louisiana v. Henry L. MARK
    NO. 18-KA-469
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, HENRY L. MARK, Prentice L. White
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst
   GRAVOIS, J.

Defendant, Henry L. Mark, appeals his conviction and sentence resulting from a guilty plea to simple robbery. His appointed appellate counsel has filed a brief in conformity with the procedure outlined in State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curium ), appointed appellate counsel requests permission to withdraw as counsel of record for defendant. After thorough review of the record, we agree with counsel's assessment of the case and accordingly affirm defendant's conviction and sentence and grant the motion to withdraw.

PROCEDURAL HISTORY

On August 12, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant, Henry L. Mark, with armed robbery with a firearm in violation of La. R.S. 14:64 and La. R.S. 14:64.3(A) (count one), and with aggravated second degree battery in violation of La. R.S. 14:34.7 (count two). That same date, defendant was arraigned and pled not guilty.

Pursuant to a negotiated plea agreement, on May 15, 2017, the State amended count one in the bill of information to simple robbery in violation of La. R.S. 14:65 and dismissed count two. Defendant withdrew his plea of not guilty and tendered a plea of guilty to the amended charge of simple robbery, and the trial court conducted a colloquy with him. After accepting his guilty plea, the trial court sentenced defendant in accordance with the plea agreement to seven years imprisonment at hard labor.

On May 21, 2018, defendant filed a Uniform Application for Post-Conviction Relief seeking an out-of-time appeal. On May 23, 2018, the trial court dismissed defendant's application without prejudice and granted him an out-of-time appeal.

FACTS

Defendant pled guilty. Therefore, the facts of this case were not fully developed at a trial. The amended bill of information provides that on or about May 28, 2016, in Jefferson Parish, defendant violated La. R.S. 14:65 by robbing Trey Gisclair. The State also provided the following factual basis for the charge during the colloquy: if it were to proceed to trial, the State would prove beyond a reasonable doubt that on or about May 28, 2016, defendant violated La. R.S. 14:65 by robbing Trey Gisclair.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford , supra , appointed appellate counsel has filed a brief asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , supra , and State v. Jyles , supra , appointed counsel requests permission to withdraw as counsel of record for defendant.

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." McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In Jyles , 704 So.2d at 241, 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. The Court explained that 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 significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.

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. Bradford , 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant appellate 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. Id.

ANALYSIS

Defendant's appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Counsel avers that defendant was advised of his constitutional rights, and he freely and voluntarily waived those rights by amending his plea to guilty. Counsel states that defendant signed the waiver of rights form, verifying that he was advised of these rights, and he verbally declared his understanding of the waiver of his rights. He notes that defendant was also questioned about his mental competence and his ability to understand the sentence to be imposed. Counsel provides that defendant was sentenced based on the terms and conditions of the plea agreement.

Appellate counsel has filed a motion to withdraw as counsel of record for defendant which states that he has made a conscientious and thorough review of the record and can find no non-frivolous issues to raise on appeal and no rulings to support an appeal. Additionally, this Court notified defendant by certified mail that an Anders brief had been filed and that he had until October 10, 2018 to file a pro se supplemental brief. As of the date of the case's submission for decision, defendant had not filed a brief with this Court.

The State filed a response to defendant's appeal, agreeing with appellate counsel's assertion that there are no non-frivolous issues for appellate review and that defendant voluntarily and intelligently entered his guilty plea. It asserts that counsel's motion to withdraw should be granted as he has "cast an advocate's eye" over the record.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal. The amended bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the charged offense. It also sufficiently identified defendant and the crime charged. See generally La. C.Cr.P. arts. 464 - 466. As reflected by the transcripts and the minute entries, defendant appeared at each stage of the proceedings against him. As such, defendant's presence does not support any claims on appeal.

Defendant pled guilty to simple robbery in violation of La. R.S. 14:65. When a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Turner , 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Here, defendant entered an unqualified guilty plea, and therefore, all non-jurisdictional defects have been waived. No rulings were preserved for appeal under State v. Crosby , 338 So.2d 584 (La. 1976).

A review of the record reveals no irregularities in defendant's guilty plea. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. 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. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

The record shows defendant was aware he was pleading guilty to one count of simple robbery, a violation of La. R.S. 14:65. Defendant was properly advised of his Boykin rights. On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. On the waiver of rights form, defendant made an affirmative notation next to each of these rights, indicating that he understood he was waiving these rights by pleading guilty. Defendant acknowledged that he had reviewed the waiver of rights form with his attorney. Defendant also verbally indicated his understanding that he was waiving these rights during the colloquy with the trial court.

Defendant further indicated, both during his guilty plea colloquy and in his executed waiver of rights form, that he had not been forced, coerced, or threatened into entering his plea. He denied suffering from any physical or mental impairment that would affect his competency to enter the plea and acknowledged that he was capable of reading, writing, and understanding English. He also indicated that he was satisfied with his attorney and the manner in which the trial court handled his case. Defendant was advised that he was waiving his right to appeal any verdict of guilty returned at a trial.

During the colloquy, defendant was correctly informed that the sentencing range for simple robbery was zero to seven years imprisonment punishable with or without hard labor. Defendant was informed via the waiver of rights form and during the colloquy of the actual sentence of seven years imprisonment at hard labor that would be imposed upon acceptance of his plea. Also, he was advised that his plea could be used to enhance a penalty for any future conviction. The trial court then accepted defendant's plea as knowingly, intelligently, freely, and voluntarily made.

Further, defendant's sentence does not present issues for appeal. Defendant's sentence was imposed in accordance with the plea agreement. This Court has consistently recognized that La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Moore , 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46, writ denied , 09-2046 (La. 8/18/10), 42 So.3d 394 ; State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Here, defendant's seven-year sentence at hard labor is within the sentencing range set forth in the statute. See La. R.S. 14:65. Although he received the maximum term of imprisonment carried by La. R.S. 14:65, defendant's plea agreement was beneficial to him in that the State reduced count one from armed robbery with a firearm and dismissed count two in its entirety. Additionally, the State chose not to file a habitual offender bill of information against defendant as part of the plea agreement.

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel's assertion, appellate counsel's motion to withdraw as attorney of record for defendant is hereby granted.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920, State v. Oliveaux , 312 So.2d 337 (La. 1975), and State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990). No errors patent were discovered.

CONCLUSION

For the foregoing reasons, defendant's conviction and sentence are affirmed. Appellate counsel's motion to withdraw as counsel of record for defendant is granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED

      On July 7, 2016, defendant filed a motion for a preliminary hearing, which was set for hearing but continued without date. On August 2, 2016, defendant filed a Motion for Release without Bail Pending Trial, which was denied at his arraignment.

      Defendant was also ordered to pay fines, fees, and costs.

      Defendant also filed a motion for a preliminary hearing, which was not ruled upon prior to defendant's guilty plea. Nevertheless, defendant waived any argument regarding these outstanding motions by pleading guilty without raising the issue. See State v. Corzo , 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

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

      During the colloquy, defendant, as well as his trial counsel, indicated that the plea was in defendant's "best interest." The "best interest" or Alford plea is one in which a defendant pleads guilty while maintaining his innocence. McCoil , 924 So.2d at 1122. However, the record does not reflect that this was a plea pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Defendant admitted he was guilty of the crime.

      See La. R.S. 14:65(B) ("Whoever commits the crime of simple robbery shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both.). Defendant was not informed that La. R.S. 14:65 carried a possible fine of not more than $3,000.00. La. C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. "Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea." La. C.Cr.P. art. 556.1(E). Violations of La. C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are subject to a harmless error analysis. State v. Craig , 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60, 64. Under the circumstances, we find the trial court's failure to advise defendant of a possible fine is harmless. See State v. Reed , 99-1296 (La. App. 5 Cir. 5/17/00), 762 So.2d 218, writ denied , 00-1682 (La. 4/12/01), 788 So.2d 1201.

      The advisement of the agreed-upon sentences is sufficient for compliance with La. C.Cr.P. art. 556.1. Craig , 66 So.3d at 64 ; State v. Broadway , 40,569 (La. App. 2 Cir. 1/25/06), 920 So.2d 960.


author: JOHNSON, J.

text:
    STATE of Louisiana v. Ronald J. BOWMAN
    NO. 18-KA-517
    Court of Appeal of Louisiana, Fifth Circuit.
    December 19, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Anne M. Wallis
    COUNSEL FOR DEFENDANT/APPELLANT, RONALD J. BOWMAN, Prentice L. White
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson
   JOHNSON, J.

Defendant appeals his conviction and sentence for aggravated burglary on the basis his guilty plea was constitutionally infirm given the absence of a factual basis for his plea and his proclamation of innocence. For the reasons that follow, we affirm.

On December 1, 2015, Defendant, Ronald Bowman, and two co-defendants were charged in a bill of information with aggravated burglary. Defendant initially pled not guilty and filed several pre-trial motions, including motions to suppress evidence, statement and identification. On August 10, 2016, Defendant withdrew his not guilty plea and pled guilty as charged. In accordance with the plea agreement, the trial court sentenced Defendant to 15 years imprisonment at hard labor to run concurrently with any other sentence he was currently serving, and the State agreed not to file a multiple offender bill of information against Defendant.

Defendant subsequently filed an application for post-conviction relief, which was dismissed in favor of an out-of-time appeal. In his sole assignment of error on appeal, Defendant argues that his guilty plea is constitutionally infirm and should be set aside on the basis that the record is void of a factual basis upon which his plea was based. He maintains that the only reference to the facts of this case are from the victim impact statement given by the victim's son prior to the imposition of his sentence. Defendant points out that during the son's statement, he interjected and proclaimed that he "did not do it," which he contends put the trial court on notice that he was coerced into pleading guilty. As such, he seeks to withdraw his guilty plea and have the matter remanded for a jury trial.

A defendant does not have an absolute right to withdraw a guilty plea. State v. Williams , 18-71 (La. App. 5 Cir. 7/31/18), 251 So.3d 1250, 1256. Under La. C.Cr.P. art. 559(A), the trial court may permit a defendant to withdraw his guilty plea at any time before he is sentenced. However, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. Williams, supra . 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. Id.

A guilty plea normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects by either appeal or post-conviction relief. State v. Dadney , 14-511 (La. App. 5 Cir. 12/16/14), 167 So.3d 55, 59, writ denied , 15-90 (La. 10/30/15), 179 So.3d 614. Such a plea waives any right a defendant might have had to question the merits of the State's case and the factual basis underlying the conviction. State v. Hayes , 15-141 (La. App. 5 Cir. 8/25/15), 173 So.3d 1222, 1224, writ denied , 15-1789 (La. 9/23/16), 200 So.3d 364.

Louisiana law does not require that a guilty plea be accompanied by a recitation of the factual basis for the crime. State v. Autin , 09-995 (La. App. 5 Cir. 4/27/10), 40 So.3d 193, 196, writ denied , 10-1154 (La. 12/10/10), 51 So.3d 725. "[T]he due process clause imposes no constitutional duty on state trial judges to ascertain a factual basis prior to accepting a guilty plea....Louisiana law, unlike [federal law] has no statutory provision requiring accompaniment of a guilty plea by the recitation of a factual basis." State v. Wynne , 40,921 (La. App. 2 Cir. 4/12/06), 926 So.2d 789, 796 (internal citations omitted). Due process requires a finding of a significant factual basis for a defendant's guilty plea only when a defendant proclaims his innocence or when the trial court is otherwise put on notice that there is a need for an inquiry into the factual basis. Autin , supra at 196-97 ; State v. Brooks , 38,963 (La. App. 2 Cir. 9/22/04), 882 So.2d 724, 730, writ denied , 04-2634 (La. 2/18/05), 896 So.2d 30.

A plea accompanied by a claim of innocence is an Alford plea and puts the trial court on notice that it must ascertain a factual basis to support the plea. State v. Orman , 97-2089 (La. 1/9/98), 704 So.2d 245 (per curiam ). In a case involving a bona fide Alford plea, the record must contain "strong evidence of actual guilt." Alford , 400 U.S. at 38, 91 S.Ct. at 167. This Court has recognized that where there is an Alford plea, "constitutional due process requires that the record contain 'strong evidence of actual guilt.' " State v. Nelson , 17-650 (La. App. 5 Cir. 5/23/18), 248 So.3d 683, 686 n.7 ; State v. Bailey , 94-76 (La. App. 5 Cir. 6/28/94), 639 So.2d 860, 864.

Here, Defendant did not enter an Alford plea, but rather entered an unqualified guilty plea. Specifically, at no time during the plea colloquy did Defendant assert his innocence or specify that he was making a qualified plea under Alford . Thus, the trial court was not put on notice that there was a need for a factual basis before accepting Defendant's guilty plea.

A review of the record demonstrates that Defendant was aware he was pleading guilty to aggravated burglary. During the plea colloquy with the trial judge, and in the waiver of rights form, Defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination and that he was waiving those rights by pleading guilty. Defendant verbally acknowledged his understanding of these rights and his waiver of them during the plea colloquy. Additionally, Defendant initialed each right on the waiver of rights form, indicating he understood that he was waiving these rights by pleading guilty.

Further, in the waiver of rights form and during the plea colloquy, Defendant denied that he was forced, coerced, or threatened into entering his guilty plea and indicated that he was satisfied with his legal representation. He denied having any physical or mental impairment that would affect his ability to enter his plea and acknowledged that he was able to read, write, and understand English.

Defendant was also informed in the waiver of rights form and during the colloquy of the sentencing range of one to 30 years carried by a violation of La. R.S. 14:60 and of the actual sentence of 15 years that he would receive if the trial court accepted his guilty plea. After the plea colloquy, the trial court accepted Defendant's guilty plea as knowingly, intelligently, freely, and voluntarily made. Our review of the record reveals no defect in this guilty plea colloquy that would warrant reversal.

Defendant argues that because he stated that he did not commit the offense during the sentencing hearing, the trial court should have recessed the hearing to allow Defendant to speak to his attorney about his willingness to maintain his guilty plea and to determine his state of mind. We find no merit to this argument.

After the trial court accepted Defendant's guilty plea, Defendant waived delays. The victim's son then proceeded to give a victim impact statement. During this statement, the trial court interrupted and the following exchange occurred:

THE COURT:
Mr. Bowman, I'm going to advise you of this one last time, this first time and not again that while this gentleman is talking to you, do not speak back, and if I'm understanding what I'm hearing you say as you're sitting over there is "I didn't do it." Well, if that's the case, this Court's [sic] not going to be able to accept your guilty plea. If you didn't do it, then we're going to have to re-discuss your guilty plea and we'll set the matter for trial. Is that what you're saying to the Court that you want to do?
THE DEFENDANT:
(No verbal response).
THE COURT:
All right. I'm going to advise you, Mr. Bowman, and again I'm going to advise you of this this last time. Do not interrupt this gentleman as he's speaking to you. Do you understand?
[DEFENSE COUNSEL]:
Can I have one moment, Your Honor?
THE DEFENDANT:
I apologize, sir.
( [Defense counsel] confers with the defendant)

After the victim impact statement, the trial court asked Defendant if he was prepared for sentencing, at which time defense counsel asked if Defendant could speak. The trial court assented and Defendant apologized to the victim, stating, "I truly want to apologize to the nice lady. I'm so sorry. I truly am sorry....I wish I would have did [sic] something, anything - -." Thereafter, Defendant asked the trial court to proceed, and the trial court sentenced him to 15 years.

First, we find that Defendant's comment - "I didn't do it" - overheard by the trial court was not necessarily a proclamation of innocence regarding the offense of aggravated battery. Defendant's comment followed the victim's son's statement, in which he stated:

What you did was wrong, heartless and without any natural affection whatsoever. I don't know where your heart was to go into an elderly woman's house, force your way in, punch her repeatedly, knock her to the ground. Yes, you and your buddy. When she fell to the ground, y'all kicked her repeatedly. If you would have seen her after she got out of the hospital: a broken tooth, lacerations, bruises.

It is not clear which of the actions Defendant was denying, especially considering the fact that three perpetrators were charged in the offense.

Second, and more importantly, we find that any assertion of innocence by Defendant was made after he entered his guilty plea and after the trial court accepted his plea. Again, at no time prior to accepting Defendant's plea was the trial court put on notice of the need for a factual basis. We note that once the trial court construed Defendant's comment as a possible claim of innocence, after accepting his guilty plea and prior to sentencing, the trial court offered Defendant an opportunity to withdraw his guilty plea and proceed to trial. However, despite this opportunity, Defendant did not do so. We further note that Defendant's claim that he "didn't do it" seemed contradicted by his subsequent apology to the victim, thereby casting doubt on whether his comment, considered in context, was a true proclamation of his innocence or was simply a denial of the facts as recounted by the victim's son.

Based on these circumstances, we do not find a factual basis was required at the time Defendant entered his guilty plea. We further find no constitutional defects in Defendant's guilty plea that warrant reversal of his conviction and sentence. Accordingly, Defendant's conviction and sentence for aggravated burglary are affirmed.

We have reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920 and find no such errors.

CONVICTION AND SENTENCE AFFIRMED

      The record does not show that these motions were ever ruled upon. However, Defendant did not object to the trial court's failure to rule on his pre-trial motions prior to pleading guilty and, therefore, said motions were waived. See State v. Corzo , 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

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

      North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).


author: Judge Tiffany G. Chase

text:
    PLAQUEMINES PARISH GOVERNMENT v. Byron WILLIAMS, et al.
    NO. 2018-CA-0675
    Court of Appeal of Louisiana, Fourth Circuit.
    December 19, 2018
    Peter A. Barbee, William S. Culver, Jr., PARISH ATTORNEY' OFFICE, 333 F. Edward Herbert Blvd., Bldg. 100, Belle Chasse, LA 70037, COUNSEL FOR PLAINTIFF/APPELLANT
    Michael Lawrence Mullin, Betty Finley Mullin, LAW OFFICES OF MICHAEL L. MULLIN, 401 Whitney Avenue, Suite 205, Gretna, LA 70056, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

Plaquemines Parish Government (hereinafter "PPG"), seeks review of the trial court's June 18, 2018 judgment granting the motion for summary judgment filed by Byron Williams, Jr., Vernon Williams, Byron Williams, Sr., Vernon Williams Trucking Service, LLC and Byron and Vernon Enterprises, LLC (hereinafter "the defendants"). After consideration of the record before this Court, and the applicable law, we convert PPG's appeal to a writ; grant the writ; deny relief and affirm the judgment of the trial court.

Facts and Procedural History

PPG filed suit seeking damages, losses and return of public funds on October 25, 2016, and a supplemental and amending petition on November 3, 2016, naming Byron Williams, Jr., Vernon Williams, Byron Williams, Sr., Vernon Williams Trucking Service, LLC and Byron and Vernon Enterprises, LLC as defendants. PPG alleged that Byron Williams, Jr., in his position as public works director, violated the Governmental Employee Code of Ethics by directing parish work to Vernon Williams Trucking, LLC and Byron and Vernon Enterprises, LLC, companies affiliated with the Williams family. As this matter involves an alleged violation of state nepotism laws, a brief recitation of the entities and parties involved is germane. Vernon Williams was the owner of Vernon Williams Trucking, LLC , co-owner of Byron and Vernon Enterprises, LLC and uncle of Byron Williams, Jr. Byron Williams, Sr. was the co-owner of Byron and Vernon Enterprises, LLC and father of Byron Williams, Jr.

PPG argued that Byron Williams, Jr. improperly received parish funds through Byron and Vernon Enterprises, LLC and that he was improperly employed by Vernon Williams Trucking, LLC while still in his position as public works director. In support of its contentions, PPG attached a September 15, 2008 invoice from Byron and Vernon Enterprises, LLC, directed to PPG. It also attached the Louisiana Board of Ethics Disclosure schedule of employment information submitted by Bryon Williams, Jr. during his run for parish president in 2014. The petitions provided that Vernon Williams Trucking Service, LLC and Byron and Vernon Enterprises, LLC were improperly conducting business with PPG from 2007 until 2014, during the tenure of Byron Williams, Jr.

PPG alleged that all the defendants committed fraud by authorizing and receiving payments in violation of the Plaquemines Parish Charter, Section 7.06(A) , La. R.S. 42:1111 and 42:1112. PPG further alleged that Byron Williams, Jr. committed certain acts that perpetuated misuse of public funds for personal gain and that he, along with Vernon Williams Trucking, LLC and Byron and Vernon Enterprises, LLC, improperly received money, goods, material, labor and services from PPG. It also maintained that Byron Williams, Jr. participated in the process to select and approve vendors for PPG, authorized payment to his family businesses, and was improperly employed by Vernon Williams Trucking, LLC during his tenure as public works director.

On March 6, 2018, defendants filed a motion for summary judgment asserting that Byron Williams, Jr. did not violate the Code of Ethics of Government Employees and that the remaining defendants did not improperly receive government funds because they were not prohibited from doing business with PPG.

In support of its motion for summary judgment, defendants submitted affidavits from Bryon Williams, Jr., Byron Williams, Sr. and Vernon Williams. The affidavit from Byron Williams, Jr. attested that he became employed with Vernon Williams Trucking, LLC after his tenure as public works director. His affidavit also stated that the signature on the September 15, 2008 invoice was not his signature and that he had no knowledge of the transaction described in the invoice. Byron Williams, Sr.'s affidavit provided that he was co-owner of Byron and Vernon Enterprises, LLC, with his brother Vernon Williams. His affidavit also attested that the September 15, 2008 invoice was sent to PPG in error and that Byron and Vernon Enterprises, LLC never did business with or received payment from PPG. Vernon Williams's affidavit explained that he was the sole owner of Vernon Williams Trucking, LLC and co-owner of Byron and Vernon Enterprises, LLC. The affidavit provided that Byron and Vernon Enterprises, LLC never did business with PPG, that the September 15, 2008 invoice was sent to PPG in error, was never paid and that only his signature appears on the invoice. Additionally, the defendants submitted the deposition of Thomas Serpas, chief financial officer of PPG, and the deposition transcript of Brenda Stanifer, director of purchasing for PPG.

PPG's opposition memorandum and supplemental opposition memorandum to the motion for summary judgment maintained its position outlined in the petition for damages. It submitted various documents in opposition to the motion for summary judgment. Specifically, PPG submitted filing documents from the Louisiana Secretary of State for Vernon Williams Trucking, LLC and Byron and Vernon Enterprises, LLC.; the September 15, 2008 invoice to PPG from Byron and Vernon Enterprises, LLC; the 2014 Louisiana Board of Ethics Disclosure schedule of employment information submitted by Bryon Williams, Jr.; and the administration of operating and capital budgets in the charter for local self-government of Plaquemines Parish. Additionally, PPG provided the affidavit of Jurea LaFrance, former employee of PPG, who attested that she witnessed Byron and Vernon Trucking, LLC trucks working on a levee project while Byron Williams, Jr. was employed with PPG. It also submitted the affidavit of Edward Theriot, former president of PPG, who attested that Byron Williams, Jr. was responsible for reviewing and approving invoices during his time as public works director for PPG.

The defendants' motion for summary judgment was heard on June 7, 2018. A judgment was issued on June 18, 2018, granting the defendants' motion for summary judgment and dismissing PPG's claim with prejudice. The trial court found that based on the exhibits attached, there was no genuine issue of material fact and defendants were entitled to summary judgment as a matter of law. This appeal followed.

Appellate Jurisdiction

An appellate court has an independent duty to consider whether it has subject matter jurisdiction over the matter, even when the issue is not raised by litigants. See Urquhart v. Spencer , 2015-1354, p. 3 (La.App. 4 Cir. 12/1/16), 204 So.3d 1074, 1077 (quoting Moon v. City of New Orleans , 2015-1092, 2015-1093, p. 5 (La.App. 4 Cir. 3/16/16), 190 So.3d 422, 425 ). A final, appealable judgment must contain the proper decretal language. The judgment must name the party against whom and the party in favor of whom the ruling is ordered, as well as the relief denied or granted. Id. (quoting Bd. of Supervisors of Louisiana State Univ. v. Mid City Holdings, L.L.C. , 2014-0506, p. 3 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910 ).

The June 18, 2018 judgment does not indicate whether the judgment granting the motion for summary judgment is applicable to all or some of the defendants. Thus, we find the judgment fails to provide the requisite decretal language and, therefore, is not a final appealable judgment. However, this Court may exercise its supervisory jurisdiction and convert the appeal to an application for supervisory review when the appeal is filed within the thirty-day period allowed for an application for supervisory writ. Mid City Holdings, L.L.C. , 2014-0506, p. 4, 151 So.3d at 911. The motion for appeal in this case was filed within the thirty-day period. As such, we exercise our discretion and convert PPG's appeal to an application for supervisory writ.

Standard of Review

An appellate court reviews a trial court's decision to grant a motion for summary judgment de novo . In Chatelain v. Fluor Daniel Const. Co. , 2014-1312, p. 3 (La.App. 4 Cir. 11/10/15), 179 So.3d 791, 793, this Court set forth the applicable standard of review as follows:

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.

Discussion

PPG argues that the trial court erred in granting the defendants' motion for summary judgment by improperly weighing evidence and making credibility determinations. La. C.C.P. art. 966(A)(3) provides that "[a]fter an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law."

The applicable statutory authority provides that the initial burden of proof lies with the party moving for summary judgment. La. C.C.P. art. 966(D)(1). However, the burden to produce factual support sufficient to establish the existence of a genuine issue of material fact rests with the adverse party. Id. It is well settled that affidavits can be used to support or oppose a motion for summary judgment. La. C.C.P. art. 967(A) provides that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein...." In light of the evidentiary documentation submitted, we must determine if PPG provided sufficient evidence to demonstrate genuine issues of material fact exist regarding claims that defendants improperly received money for parish related work.

The central issue before this Court is whether Byron Williams, Jr. violated the Code of Ethics of Government Employees. Although PPG asserts separate claims against the remaining defendants, PPG's claims are primarily rooted in the nepotism statutes. Its claims against Byron Williams, Jr. are based on his capacity as public works director and the claims against the remaining defendants are based on their affiliation with Byron Williams, Jr. during his tenure. In its petitions, PPG submits that Byron Williams, Jr. violated La. R.S. 42:1111 and La. R.S. 42:1112 and that the remaining defendants violated La. R.S. 42:1112. As such, we will address the claims separately.

Claims against Byron Williams, Jr.

At the onset, PPG argues that Byron Williams, Jr. violated La. R.S. 42:1111. The statute addresses payments to public servants. It provides that "no public servant shall receive anything of economic value, other than compensation and benefits from the governmental entity to which he is duly entitled, for the performance of the duties and responsibilities of his office or position." La. R.S. 42:1111(A).

PPG argues that Byron Williams Jr. violated La. R.S. 42:1111(A) by receiving money, while he was serving as public works director, as a result of the invoices paid to his family owned companies. However, PPG has failed to provide evidentiary support regarding its contention. It has not provided evidence of what economic benefit Byron Williams, Jr. improperly received during his tenure as public works director. Thomas Serpas, chief financial officer of PPG, and Brenda Stanifer, chief purchasing officer of PPG, testified in their depositions that the only checks made payable to Byron Williams, Jr. were related to his employment with PPG. Also, both individuals testified that a search of the records did not reveal any payments made to Byron and Vernon Enterprises, LLC. Additionally, Byron Williams, Jr. attested that he was not employed with Vernon Williams Trucking, LLC until after he left office. The defendants provided pay checks, made payable to Byron Williams, Jr. from Vernon Trucking, LLC, demonstrating that his employment with the company occurred after his employment with PPG concluded. Based on the record before this Court, Byron Williams, Jr. was not affiliated with Vernon Williams Trucking, LLC or Byron and Vernon Enterprises, LLC during his tenure as public works director and did not receive economic benefits from the companies while he was in office.

PPG also argues that Byron Williams, Jr. violated La. R.S. 42:1112, which provides that:

A. No public servant, except as provided in R.S. 42:1120, shall participate in a transaction in which he has a personal substantial economic interest of which he may be reasonably expected to know involving the governmental entity.
B. No public servant, except as provided in R.S. 42:1120, shall participate in a transaction involving the governmental entity in which, to his actual knowledge, any of the following persons has a substantial economic interest:
(1) Any member of his immediate family....

La. R.S. 42:1102(13) defines a public servant's " 'immediate family'... [as] his children, the spouses of his children, his brothers and their spouses, his sisters and their spouses, his parents, his spouse and the parents of his spouse." PPG argues that Byron Williams, Jr. violated the applicable statute by approving invoices submitted, for parish work, by his family owned companies of which he holds an economic interest.

As discussed infra , only Byron Williams, Jr.'s conduct with regards to Byron and Vernon Enterprises, LLC could be a violation of the statute. The defendants produced evidence that Byron Williams, Jr. did not have knowledge of the submission of the September 15, 2008 invoice and that the invoice was intended to be submitted from Vernon Williams Trucking, LLC, not Byron and Vernon Enterprises. Furthermore, Vernon Williams attested that his signature appeared on the invoice, he notified PPG of the error, the September 15, 2008 invoice was returned to him and that invoice was never paid. As previously noted, Thomas Serpas and Brenda Stanifer testified that a search of the records did not reveal any payments made to Byron and Vernon Enterprises, LLC from PPG.

The record does not reflect that the September 8, 2015 invoice was actually paid. Additionally, during the hearing on the motion for summary judgment PPG acknowledged that a check, made payable to Byron and Vernon Enterprises, LLC, associated with the September 15, 2008 invoice, could not be located. PPG has failed to demonstrate what economic benefit Byron Williams, Jr. received. Additionally, it has not established that Byron Williams, Jr. improperly participated in a transaction with Byron and Vernon Enterprises, LLC. As such, we find no genuine issue of material fact as to a violation of La. R.S. 42:1111 and La. R.S. 42:1112 by Bryon Williams, Jr.

Claims against the remaining defendants

As to the remaining defendants, PPG maintains that they received economic benefits during the tenure of Byron Williams, Jr. because he approved invoices for parish work submitted from Vernon Williams Trucking, LLC and Byron and Vernon Enterprises, LLC. PPG argues that the remaining defendants participated in this conduct violates La. R.S. 42:1112. It maintains that it is entitled to reimbursement of public funds paid to the defendants as a result of the invoices submitted for work performed for the parish. We find this argument unpersuasive. La. R.S. 42:1112 prohibits certain conduct for a "public servant." In the case sub judice , the obligation to refrain from engaging in prohibited conduct under the statute lies with Byron Williams, Jr. The remaining defendants did not owe a duty to PPG under La. R.S. 42:1112.

Additionally, the September 15, 2008 invoice was signed by Vernon Williams, the uncle of Byron Williams, Jr. The other invoices in the record were submitted from Vernon Williams Trucking, LLC. As PPG concedes, since uncles are not included in the definition of "immediate family" as defined in La. R.S. 42:1102(13), no violation of the statute occurred with regards to Vernon Williams. Therefore, it was not unlawful for Vernon Williams Trucking, LLC to be paid for work performed for the parish while Byron Williams, Jr. was public works director.

Further, in order for there to be a violation of La. R.S. 42:1112, Byron Williams, Sr., Byron and Vernon Enterprises, LLC, or both, would have had to receive money from PPG while Bryon Williams, Jr. was public works director. PPG maintains that because Byron Williams, Sr., was listed as a registered agent for Byron and Vernon Enterprises, LLC, the defendants still violated the applicable statutes. As discussed supra , the defendants provided evidence that the invoice was submitted in error and never paid. Additionally, a search of the records produced only one check made payable to Byron Williams, Sr., which was for jury duty service. Therefore, Byron Williams, Sr. and Byron and Vernon Enterprises, LLC never received any compensation for work performed for the parish while Byron Williams, Jr. was public works director. Moreover, because the September 15, 2008 invoice was never paid to Byron and Vernon Enterprises, LLC, PPG failed to demonstrate that it suffered any harm. As such, we find that there was no violation of La. R.S. 42:1112 by the remaining defendants.

Conclusion

The trial court considered the evidence presented and determined that summary judgment was warranted. This conclusion was not in error. Based on the record before this Court, the September 15, 2008 invoice was never paid. The defendants submitted evidence, in the form of affidavits, establishing that the invoice was submitted in error and never paid. Further, PPG provided no evidence to show that the invoice was paid. We find PPG did not provide sufficient evidence to refute the defendants' motion for summary judgment. Thus, there is no genuine issue of material fact and summary judgment was appropriately granted. Accordingly, the appeal is converted to a writ. The writ is granted and the judgment of the trial court is affirmed.

APPEAL CONVERTED TO WRIT; WRIT GRANTED; RELIEF DENIED; JUDGMENT AFFIRMED

      Vernon Williams Trucking, LLC was registered with the Secretary of State on February 4, 2004.

      Byron and Vernon Enterprises, LLC was registered with the Secretary of State on January 17, 2006.

      As of the date of the filing of the petitions, Vernon Williams Trucking, LLC and Byron and Vernon Enterprises, LLC were no longer valid companies. Thus, PPG sought to sue the owners in their individual capacity.

      Plaquemines Parish Charter, Section 7.06: Administration of Operating and Capital Budgets, provides, in pertinent part, that:
      (A)Any authorization of payment or incurring of obligation in violation of the provisions of this Charter shall be void and payment so made illegal; such action shall be cause for removal of any official, officer or employee who knowingly authorized or made such a payment or incurred such obligation or caused such payment...; such person shall also be personally liable for reimbursement, with interest, to the Parish government of any amount paid.

      As explained below, the signature on the September 15, 2008 invoice was that of Vernon Williams.

      The defendants also submitted correspondence to the attorney of record for PPG regarding the petition incorrectly listing Vernon Williams as the father of Byron Williams, Jr., an invoice from the defendants' attorney and PPG's responses to discovery.