author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Gerald GREEN.
    No. 09-KA-309.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for PlaintifftAppellee, The State of Louisiana.
    Rudy W. Gorrell, Attorney at Law, New Orleans, LA, for Defendant/Appellant, Gerald Green.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MARC E. JOHNSON
   SUSAN M. CHEHARDY, Judge.

12Gerald Green appeals the trial court’s order that he pay restitution to an insurance company for his theft from his former employer. We affirm the sentence in part, vacate it in part, and remand for resen-tencing.

On April 8, 2008, the Jefferson Parish District Attorney filed a bill of information charging Gerald Green with violation of La. R.S. 14:67 by theft of $25,000 in United States currency from Fitness Expo between December 1, 2006 and May 15, 2007. Defendant pleaded not guilty at arraignment.

On June 5, 2008 Defendant withdrew his not guilty plea, waived his rights, and entered a plea of guilty. The State advised the court that the parties were admitting the theft was over $500.00, the theft charge was valued at approximately $25,000, and defense counsel had asked for restitution to be established. The prosecutor stated he would have to check with the victim to determine the exact amount of restitution.

|sIn beginning the plea colloquy, the trial court stated to Defendant, “I understand, sir, you wish to plead guilty to theft in excess of $25,000.” Defendant replied, “Yes, sir.” The court advised Defendant of the sentencing range for the offense, and of the rights he would be waiving by his guilty plea.

The court then told Defendant his sentence would be two years in the Department of Corrections, suspended, and five years of active probation. In addition, the court informed Defendant, “You will also be required to make restitution roughly in the amount of $25,000 and we will have a restitution hearing for you, but if you make restitution and two years have passed I will terminate your probation after two years.” Defendant responded, “Yes, sir.”

After inquiry into Defendant’s understanding of other rights affected by the plea, the court found a factual basis for the plea and accepted the plea as having been “knowingly, intelligently, freely, and voluntarily made.”

Defendant waived all delays and was sentenced to two years in the Department of Corrections, suspended, and five years of active probation. The court directed Defendant to comply with the conditions of probation as outlined on the Conditions of Probation — Felony form Defendant had signed, “which will include but not be limited to a fíne, various fees, and court costs.” The court set a restitution hearing for a subsequent date.

The “Conditions of Probation — Felony” form states in pertinent part, “It is the order of the court that you shall comply with the following conditions of probation: ... 8. Make restitution to the aggrieved party for damage or loss, if any, caused by your offense(s) in an amount determined by the court, as follows: 7/24/08.”

At the restitution hearing, Rod Rice, Sr. of Fitness Expo, Inc. testified he contacted the Jefferson Parish Sheriffs Office to report a theft by one of his |4employees, Gerald Green. Rice testified that his insurer, Zurich American Insurance Company, compensated him for the theft in two payments, one for $27,935.00 and the other for $6,304.51, totaling $34,239.41. He was not compensated for his deductible of $1,000.00, however. The prosecutor asked, “So, your only loss at this time is $1,000.00 attributed to the defendant?” and Rice responded, “That we know of, yes, sir.” Rice acknowledged he had been paid in full by Zurich “on everything that we’ve filed with them.... ”

Rice testified further he assigned all Fitness Expo’s rights to Zurich American Insurance Company in an “Amended Release and Assignment” agreement signed on January 5, 2009.

The State submitted State Exhibit 1, copies of two checks issued to Fitness Expo by Zurich American Insurance Company, in the amounts of $27,935.00 and $6,304.51, identified by Rice; State’s Exhibit 2, the Amended Release and Assignment, signed by Rice and identified by him at the hearing; and State’s Exhibit 3, a copy of the affidavit and arrest warrant, by stipulation with defense counsel. The exhibits were admitted and defense counsel stated, “No objections, Your Honor, and also to the stipulation we agreed to.”

The court ordered Defendant to pay Zurich Insurance Company $26,935.00 and Fitness Expo $1,000.00. The defense objected on the ground that Zurich Insurance Company was not the victim and had not made a claim. The judge overruled the objection by advising defense counsel to “take a writ,” stating, “[W]e have the release in here. The release subrogates Zurich ... for the victim.”

Defendant takes this timely appeal.

\ "ASSIGNMENT OF ERROR NUMBER ONE

On appeal Defendant contends the district court erred in ordering him to pay restitution to Zurich American Insurance Company because the insurance company was not the actual victim of the theft and it did not formally request reimbursement in a separate subrogation action.

Prior to reaching the merits, we address an issue raised by the State. The State asserts the record is insufficient to determine whether the trial court erred, because Defendant failed to designate the guilty plea transcript of June 5, 2008, as part of the appellate record. (Defendant requested that only the transcript of the January 8, 2009 restitution hearing be included in the record on appeal.) The State contends Defendant has failed to demonstrate he is entitled to relief.

After the record was lodged, however, on our own motion this Court ordered the record supplemented with the June 5, 2008 sentencing transcript. Because we ordered the record supplemented and the transcript of the sentencing is now before us for review, the State’s argument does not apply.

As to the merits, Defendant asserts that the trial court erred in ordering him to pay restitution to the insurance company, and in ordering him to pay the victim a $1,000.00 out-of-pocket deductible when the victim had already been paid an amount greater than the amount stated in the bill of information. Defendant argues he should not have to pay Fitness Expo the $1,000 deductible because it would be “double dipping” by the victim, which Defendant says “appears to have reported to their insurance company more than the actual amount of theft.”

The State contends that the category of victims a defendant may be ordered to compensate as a term of his plea agreement was broadened by a 2007 amendment to La. C. Cr. P. art. 883.2, so that the trial court did not err in ordering Defendant to pay Zurich Insurance Company $26,935.00.

|fiThe State further argues the trial court did not err in ordering Defendant to pay Fitness Expo its $1,000 deductible. The State asserts the total amount paid by the insurance company excluded the deductible, so that the $1,000 deductible was an unreimbursed pecuniary loss sustained by Fitness Expo.

“When the court places a defendant on probation ... it may impose any specific conditions reasonably related to his rehabilitation, including ... reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court.” La. C. Cr. P. art. 895(A)(7).

When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in eases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain.

La. C. Cr. P. art. 895.1(A)(1).

La. C. Cr. P. art. 883.2, as amended by Acts 2007, No. 22, § 1, states:

A. In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose.
B. Additionally, if the defendant agrees as a term of a plea agreement, the court shall order the defendant to provide restitution to other victims of the defendant’s criminal conduct, although those persons are not the victim of the criminal charge to which the defendant pleads. Such restitution to other persons may be ordered pursuant to Article 895 or 895.1 or any other provision of law permitting or requiring restitution to victims. [Emphasis added].

Pursuant to the 2007 amendments to La. C. Cr. P. art. 883.2, therefore, a defendant can agree to provide restitution to “other victims,” as part of a plea |7agreement, although the “other victims” are not part of the criminal charge to which the defendant pleaded guilty.

The issue of restitution to other victims has not been presented to this Court since the 2007 amendments to La. C. Cr. P. art. 883.2 were enacted. Other appellate courts have addressed it, however.

In State v. Perez, 06-436, pp. 2-3 (La. App. 3 Cir. 9/27/06), 939 So.2d 733, 735 (hereafter “Perez I”), the defendant pleaded guilty pursuant to State v. Crosby, reserving his right to appeal the issue of payment of restitution to the victims’ insurance companies if that condition were made part of his sentence. On appeal the court noticed that the defendant had agreed to the terms of a plea agreement in which the trial court imposed restitution to victims of offenses to which the defendant had not pleaded guilty. The court of appeal vacated the condition as a patent error.

Because the specific terms of the plea agreement were not clear from the record, the court remanded the case for an eviden-tiary hearing to determine the specific elements of the plea agreement and whether the entire plea agreement was invalidated by the vacation of the restitution to victims of the offenses to which the defendant did not plead guilty. Perez I, 06-4,36 at 3—4, 939 So.2d at 736. The court pretermitted the defendant’s claim that the trial court erred in ordering him to pay restitution to the victims’ insurance companies as part of his plea agreement. Perez I, 06-436 at 4, 939 So.2d at 736.

On appeal following the remand, the defendant claimed the trial court erred in ordering him to pay restitution to the victims’ insurers for damages paid to the victim. State v. Perez, 07-229, p. 1 (La. App. 3 Cir. 10/3/07), 966 So.2d 813, 813-14 (hereafter “Perez II”). The court of appeal noted that the trial court failed to determine whether the entire plea was invalidated. The appellate court pointed out, however, that during the hearing the State indicated it intended that the defendant make full restitution in all cases in which he was the defendant. Perez II, 07-229 at 2, 966 So.2d at 815. In addition, the defendant acknowledged he agreed to pay full restitution to all individuals in the cases that were dismissed as part of the plea agreement. Perez II, 07-229 at 2-3, 966 So.2d at 815.

The appellate court found that, while the plea agreement with the State was predicated on the defendant’s restitution to all victims, requiring restitution to the victims of the dismissed cases was patently erroneous. Therefore, the appellate court again remanded the matter for the trial court to determine whether the invalidation of the restitution order invalidated the plea agreement. Perez II, 07-229 at 3, 966 So.2d at 815. In addition, the appellate court instructed the trial court not to order restitution to the victim’s insurer if it imposed restitution as a condition of probation. Perez II, 07-229 at 5, 966 So.2d at 816.

In State v. Smith, 08-1030 (La.App. 3 Cir. 3/4/09), 6 So.3d 309, the defendant pleaded guilty and agreed to make restitution to one of the victims. The trial court ordered the State to verify the amount of restitution owed to the victim and to ensure that defense counsel was in agreement with the amount. Smith, 08-1030 at 1, 6 So.3d at 310. At sentencing, the defendant was ordered to make restitution of $1,250.00 to the victim and $781.56 to the victim’s insurance company for the amount paid to the victim. Smith, 08-1030 at 1, 6 So.3d at 311. The defendant filed a motion to reconsider sentence, which was denied without reasons. Smith, 08-1030 at 2, 6 So.3d at 311.

On appeal, the defendant claimed the trial court erred in ordering him to pay restitution to the insurance company for the amount it paid to the insured victim. USmith, 08-1030 at 6, 6 So.3d at 313. The appellate court found that no evidence or caselaw was provided to show whether an insurance company is a victim and whether an insurance company can or should be considered a victim of criminal conduct. Smith, 08-1030 at 8, 6 So.3d at 315. The appellate court affirmed the defendant’s sentences for theft over $500.00, but vacated the probationary condition ordering restitution to the insurance company as a special condition of probation. Smith, 08-1030 at 8, 6 So.3d at 315.

In the present case, the defendant agreed to pay restitution of approximately $25,000 to the “aggrieved party” for damage or loss to be determined by the court on a later date. In order for the trial court to order Defendant to provide restitution to “other victims” of the defendant’s criminal conduct pursuant to La. C. Cr. P. art. 883.2(B), Defendant would have had to agree to the term as part of his plea agreement. Nothing in the transcript of the plea colloquy, the documents signed in connection therewith, or the commitment, indicates such an agreement.

Accordingly, we conclude the trial court erred in ordering Defendant to pay restitution to the insurance company. The condition requiring payment to the insurance company must be vacated because the record does not contain a specific agreement by Defendant as a condition of his plea agreement to pay restitution to “other victims of the defendant’s criminal conduct, although those persons are not the victim of the criminal charge to which the defendant” has pleaded. La. C. Cr. P. art. 883.2(B).

Regarding Defendant’s other contention, we find no merit to the claim that restitution to Fitness Expo for its $1,000 deductible would be “double dipping,” because Rice testified Fitness Expo was not compensated by Zurich American Insurance Company for its $1,000 deductible. The $1,000.00 was “an actual pecuniary loss” to the victim and restitution for that amount is appropriate under La. C. Cr. P. art. 883.2(A).

| TERROR PATENT DISCUSSION

Pursuant to our standard procedure, we reviewed the record for patent errors, according to La. C. Cr. P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review disclosed one patent error that requires action. Specifically, the sentence is indeterminate.

La. C. Cr. P. art. 879 states, “If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.” La. C. Cr. P. art. 895.1 provides, “The restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.” This Court has found a trial court’s failure to set a determinate payment schedule for restitution payments is patent error requiring that the sentence be vacated and the ease remanded for resentencing. State v. Echeverria, 03-898 (La.App. 5 Cir. 11/25/03), 862 So.2d 163; State v. Berkeley, 00-1900 (La.App. 5 Cir. 5/30/01), 788 So.2d 647, writ denied, 01-1659 (La.4/26/02), 814 So.2d 549. Accordingly, we remand the case for resentencing relative to La. C. Cr. P. arts. 879 and 895.1.

DECREE

For these reasons, we affirm the sentence as to the award of restitution to Fitness Expo in the amount of $1,000.00. We vacate the sentence in all other respects and remand for resentencing as directed in the Error Patent Discussion, above.

SENTENCE AFFIRMED IN PART AND VACATED IN PART; REMANDED.

      . La. R.S. 14:67 provides, in pertinent part:
      A. Theft is the misappropriation or tak-

        ing of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
      B. (1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of 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.

      C. When there has been a misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount of the misappropriations or taking shall determine the grade of the offense.

      . The restitution hearing originally was set for July 24, 2008 ("7/24/08”), but was continued several times, and finally was held on January 8, 2009.

      . We note a discrepancy between the payor listed on the checks and on the release form. The checks (Exhibit 1) were issued by Zurich American Insurance Company, while the Amended Release and Assignment (Exhibit 2) states that "Fidelity and Deposit Company of Maryland,” as issuer of a Commercial Crime Policy for loss caused by employee theft, made payments to the Insured (Fitness Expo) fer losses in the amounts of $28,935 and $6,304,51, subject to a $1,000 deductible, applied on the initial covered loss of $28,935.00. There is nothing in either the release document or the record to establish any connection between Fidelity and Zurich. As noted, however, the defense did not object to admission of State's Exhibit 2 and raised no issue regarding the name discrepancy.

      . The 2007 amendment added Paragraph B to Article 883.2.

      . Prior to the 2007 amendment, this Court found that the primary focus of restitution pursuant to La. C. Cr. P. art. 895.1 is restitution for "pecuniary losses caused by the criminal activity and not on providing criminal sanctions to enforce collection of civil damages.” State v. Devare, 03-610, p. 5 (La.App. 5 Cir. 10/28/03), 860 So.2d 191, 194, citing State v. Diaz, 615 So.2d 1336, 1337 (La.1993). We also found that case law and La. C. Cr. P. art. 895.1 both indicated that the trial court could only order restitution to compensate the victim, not the victim's insurance company. State v. Devare, 03-610 at 6, 860 So.2d at 195.

      . State v. Crosby, 338 So.2d 584 (La. 1976).

      . The defendant was also ordered to make restitution to six victims totaling $4,925.00 upon his release. State v. Smith, 08-1030 at 1-2, 6 So.3d at 311.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    J. CALDARERA & COMPANY, INC. v. ST. JAMES PARISH HOSPITAL SERVICE DISTRICT and the Board of Commissioners of the St. James Hospital.
    No. 09-CA-166.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.

      John W. Waters, Jr., Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Michael E. Botnick, Tina Crawford White, Phillip J. Antis, Jr., Attorneys at Law, New Orleans, LA, Bruce G. Mohon, Attorney at Law, Luteher, LA, for Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2This appeal arises out of the granting of a Motion for Summary Judgment in favor of Defendant/Appellees, St. James Hospital Service District (“Hospital”), et al, and against Plaintiff/Appellant, J. Cal-darera & Company, Inc. (“Caldarera”). For the following reasons, we affirm the decision of the trial court.

FACTS AND PROCEDURAL HISTORY

According to the pleadings, in March of 2006, the Hospital advertised for a second time for bids to construct a new community hospital in St. James Parish. On April 25, 2006, four general contractors submitted bids, which included bids from Calda-rera and Yates Construction Company, Inc. (“Yates”). Each bid was opened and read aloud at the public bid opening.

All bidders were prohibited from withdrawing, modifying, or canceling their bids for sixty (60) calendar days, which was a requirement imposed by the United States Department of Agriculture (“USDA”). On June 23, 2006, one day before the expiration of that sixty-day time period, and one day before all of the bids 1,-¡would have expired, the Board of Commissioners of the Hospital held a Special Board meeting regarding the project. The meeting was held in order to consider, vote on and announce the winning bid of the contract. The Board of Commissioners determined that Yates was the lowest responsive and responsible bidder, and with a quorum present, voted to award the contract to Yates, pending concurrence of the USDA. The other three bids were determined to suffer defects, which rendered them nonre-sponsive to the requirements of the bid documents.

On the same day of the Special Board meeting, Caldarera filed a Petition for a Temporary Restraining Order (“TRO”) and a Writ of Mandamus to stop the awarding of the contract to Yates. The Hospital filed an Opposition to the petition, and a telephone hearing was held the same day. The trial court denied the TRO and scheduled a summary proceeding for a preliminary injunction and the writ of mandamus for July 19, 2006.

At the July 19, 2006 summary proceeding, the trial court heard the merits of Caldarera’s requests. The trial court entered an Order denying Caldarera’s request for preliminary injunction and Writ of Mandamus. The trial court dismissed those same claims without prejudice in order to protect Caldarera’s right to pursue its remaining claims, consisting of claims for a declaratory judgment, permanent injunction, and damages.

On September 26, 2008, the Hospital filed a Motion for Summary Judgment. The trial court issued its Judgment with Reasons granting the Hospital’s motion. The trial court found that the Caldarera and Yates’ bids were evaluated under the same standards; Caldarera’s bid was non-responsive; and, there was no genuine issue of material fact. From this ruling, Caldarera filed its appeal with this Court.

[.,ASSIGNMENT OF ERRORS

On appeal, Caldarera alleges that the trial court committed the following errors:

1) The trial court erroneously concluded that Caldarera’s bid was nonrespon-sive.
2) The trial court erroneously concluded that there was no genuine issue as to whether all bids were evaluated under the same fair and equal standard.

LAW AND ANALYSIS

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, asking whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. State ex rel. Dept. of Transp. and Development v. Central Gulf Towing, L.L.C., 07-166, 07-167 (La.App. 5 Cir. 10/30/07), 971 So.2d 1163, 1164, writ denied 07-2304 (La.1/25/08) 973 So.2d 761. 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. Id. at 1164 A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is not need for trial on that issue and summary judgment is appropriate. Id. at 1164 citing Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764.

The mover in a motion for summary judgment bears the burden of proof; however, the mover needs only to “point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim ...” Fossier v. Jefferson Parish, 07-926 (La. App. 5 Cir. 4/15/08), 985 So.2d 255, 259 citing La. C.C.P. article 966 C(2). If a defendant moving for summary judgment |shas made a prima facie showing that the motion should be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain. Id. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228, 233.

Responsiveness of Caldarera’s Bid

Louisiana’s Public Bid Law, set forth in La. R.S. 38:2212, et seq., is a prohibitory law founded on public policy. Hamp’s Construction, L.L.C., v. The City of New Orleans, 05-0489 (La.2/22/06), 924 So.2d 104, 107 citing Broadmoor, L.L.C. v. Ernest N. Mortal New Orleans Exhibition Hall Authority, 04-0211 (La.3/18/04), 867 So.2d 651, 656; La. Associated Gen. Contr., Inc. v. Calcasieu Parish School Bd., 586 So.2d 1354 (La.1991). Pursuant to the Public Bid Law, the legislature has specifically prescribed the conditions upon which it will permit public work to be done on its behalf or on behalf of its political subdivisions. Hamp’s Construction, L.L.C. at 107. A political entity has no authority to take any action which is inconsistent with the Public Bid Law. Id.

La. R.S. 38:2212 A(l)(a) provides the following:

All public work exceeding the contract limit as defined in this Section, including labor and materials, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised, and no such public work shall be done except as provided in this Part.

La. R.S. 38:2212 A(l)(b)(i) states, “The provisions and requirements of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived by any entity.”

|fiIn accordance with the express and unambiguous language of La. R.S. 38:2212 A(l)(b), any requirements of the Public Bid Law, any requirements stated in the advertisement for bid, and any requirements required on the bid form shall not be waived by the public entity. Hamp's Construction, L.L.C. at 110, 111. Once the public entity establishes a requirement, that requirement must be uniformly followed by all bidders. Hamp’s Construction, L.L.C. at 111.

Caldarera avers that the trial court erred in concluding that its bid was nonre-sponsive. Caldarera addresses the following three deficiencies made by the Hospital: 1) Caldarera provided an incomplete job description for Bid Form 3 (the bid bond); 2) Caldarera failed to update answers on Bid Form 2 concerning active litigation and listing of completed projects; and, 3) Caldarera failed to provide a financial statement. Deficiencies numbers one (1) and three (3) are pretermitted by this Court due to the responsiveness of the second deficiency.

Bid Form 2 of the “Bidder Responsibility Questionnaire” asked the bidders to answer questions pertaining to background information, construction experience, licenses, incomplete projects, claims or suits, financial information, and references. Caldarera submitted the following answer to questions seven (7) through twelve (12) under the “Construction Experience” section:

We were previously the lowest responsive and responsible bidder on this Project on the first bid. Accordingly, a response to a similar questionnaire was provided by Mr. Bob Wallace and satisfactorily answered per a letter from JCC dated, January 4, 2005. Since that letter was accepted as responsive to this and similar questions, please find that letter attached in response to this question.

Under the “Incomplete Projects, Claims or Suits” section, Caldarera answered, “See Answer No. 7 above” for questions 17 and 18. In the letter from Caldarera dated January 4, 2005, the company provided a general list of projects it had acquired. Some of the projects, but not all, have a listed amount for the project, |7location of the project, awards received for a particular project, and duration of time it took to complete the project.

After review of the particular information requested in the questionnaire and the letter from Caldarera dated January 4, 2005, we find that Caldarera did not fully or satisfactorily provide the information requested. For example, question number eight (8) under the “Construction Experience” section asked for the name, location, owner, date of award of the contract, construction contract amount, and name of the owner’s contact person/reference for each new hospital or health care facility the bidder constructed. The letter submitted by Caldarera as an answer to the question did not provide all of the necessary information requested. The same conclusion can also be deduced for the answers to questions nine (9) through twelve (12).

Because Caldarera failed to fully answer the questionnaire, we find that Caldarera did not comply with the requirements of Bid Form 2 of the “Bidder Responsibility Questionnaire.” This deficiency, by itself, disqualifies Caldarera from qualifying as the lowest responsive and responsible bidder. The Hospital successfully “pointed out” an absence of factual support for one or more elements essential to Caldarera’s claim that it submitted a responsive bid. As a result, the trial court correctly classified Caldarera as a nonresponsive bidder. Therefore, the trial court’s decision to grant the Motion for Summary Judgment in favor of the Hospital is correct.

Evaluation of the Bids

Since we find that Caldarera’s bid was nonresponsive, the issue as to whether Yates’ bid was also nonresponsive is irrelevant to this appeal. Caldarera’s bid was properly disqualified from being the lowest responsive and responsible 18bidder, and the trial court correctly granted the Motion for Summary Judgment in favor of the Hospital. Therefore, this Court will not address the issue.

DECREE

For the foregoing reasons, we affirm the trial court’s decision to grant the Motion for Summary Judgment in favor of Defendants/Appellees. Plaintifi/Appellant is to bear the cost of the appeal.

AFFIRMED.


text:
    Lisa ENCALADE, individually and on behalf of Norbert Encalade's Estate, Jan Villa, Irene Encalade, Norbert Encalade, Jr. and Maria Encalade v. WEST JEFFERSON MEDICAL CENTER AMBULANCE SERVICE, Gerald Carter, City of Lafitte, and Jefferson Parish.
    No. 09-CA-355.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.
    Leo J. Palazzo, David D. Bravo, Gretna, Louisiana, for Appellants, Lisa Encalade, Jan Villa, Irene Encalade, Norbert Enca-lade, Jr. and Maria Encalade
    Peter J. Butler, Jr., Richard G. Passler, Michael C. Luquet, Lydia Habliston Toso, New Orleans, Louisiana, for Appellees, Jefferson Parish Hospital District No. 1 d/b/a West Jefferson Medical Center and Gerald Carter.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

|20n appeal, plaintiffs seek review of the trial court judgment maintaining defendants’ exception of prematurity. For the following reasons, we affirm that judgment.

Facts

Late on the evening of March 4, 2008, Norbert Encalade began having chest pain and difficulty breathing. At 11:28 p.m., his wife called 911 to request emergency medical assistance. In response, the dispatcher sent an ambulance from the West Jefferson Medical Center Ambulance Service to the couple’s home in the Town of Jean Lafitte.

At 11:52 p.m., the ambulance, which was driven by Gerald Carter, arrived at the Encalade’s home. After rendering immediate medical assistance, the emergency medical personnel departed with Mr. En-calade for West Jefferson Medical Center (“WJMC”) at 12:14 a.m. on March 5, 2008.

According to the plaintiffs’ brief, during the trip to the hospital, the ambulance driver traveled at forty-five (45) miles per hour, without using the |aambulance’s emergency lights. The ambulance arrived at WJMC at 12:30 a.m. Shortly after arriving at the hospital, Mr. Encalade died.

On October 28, 2008, Mrs. Encalade, individually, and on behalf of their four children filed suit in the Twenty-Fourth Judicial District Court, against the hospital, the ambulance service, the ambulance driver, the Town of Jean Lafitte and Jefferson Parish alleging that their negligence caused Mr. Encalade’s death. The plaintiffs specifically allege that Gerald Carter was negligent for “failing to timely respond and transport Mr. Encalade to a health care facility” and WJMC was negligent for “failing to train, monitor and supervise its employees.”

On December 23, 2008, defendants, Jefferson Parish Hospital District No. 1 d/b/a WJMC and Gerald Carter excepted that the Encalades’ action was premature because the instant suit was filed before the plaintiffs’ claim was reviewed by a medical review panel as required by La. R.S. 40:1299.41 et seq. On February 11, 2009, the trial judge heard defendants’ exception and took it under advisement.

On March 2, 2009, the district court maintained the exception of prematurity finding that the plaintiffs’ claims fell within the scope of the Louisiana Medical Malpractice Act (“LMMA”). In its written Reasons for Judgment, the trial court wrote:

The Court considered the Louisiana Supreme Court case of Coleman v. Deno, 01-1517, (La.1/25/02), 813 So.2d 303, 315, and finds that the six factors set forth by the Louisiana Supreme Court for determination of whether the conduct of a qualified health care provider constitutes “malpractice” has[sic] been satisfied.
The plaintiffs cited Robinson v. Allen Parish Police Jury, 05-0394 (La.App. 3 Cir. 12/30/05), 918 So.2d 535, 539, and Hidalgo v. Wilson Certified Express, Inc., 94-1322 (La.App. 1 Cir. 5/14/96), 676 So.2d 114, 119, in their opposition memorandum. The court finds that these cases are clearly distinguishable from the case at bar. In Robinson, supra, the plaintiffs alleged that there was a delay in transporting an accident victim to the emergency room because the defendant’s helicopter had mechanical problems. The Robinson court l/ound that a helicopter’s mechanical problems fall outside [of] the scope of the Louisiana Medical Malpractice Act.
In Hidalgo, supra, the plaintiff was riding in the back of an ambulance which was involved in a motor vehicle accident. The ambulance ran into the rear of the car preceding it and caused a four car collision. Upon impact, the patient struck her head and sustained injuries. The Hidalgo court found that the negligence of the ambulance driver in causing a motor vehicle accident did not fall within the ambit of the Louisiana Medical Malpractice Act.
In contrast, the plaintiffs at bar are alleging that Norbert Encalade’s medical condition required urgent action on the part of the emergency medical technicians who assessed him at his home. The plaintiffs contend that Mr. Encalade’s medical condition was of such severity that he should have been transported by ambulance at a speed in excess of 45 miles per hour and with flashing emergency lights. The plaintiffs’ allegations fall within the scope of the Louisiana Medical Malpractice Act because it places squarely at issue the emergency medical technicians’ assessment of the patient’s medical condition and the nature of the response (flashing lights and the speed of emergency transport) required by the applicable standard of care.

On appeal, appellants argue that the trial judge erred as a matter of law because the defendants’ negligent transport of Mr. Encalade is not the kind of emergency medical care or medical duty that the legislature sought to immunize from liability under the LMMA. Appellees respond that this claim falls squarely within the statutory and jurisprudential definition of medical malpractice.

The Louisiana Medical Malpractice Act is found at La. R.S. 40:1299.41, et seq. La. R.S. 40:1299.41(A)(9) defines “health care” as “any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement....” In Louisiana, a “health care provider” is defined as “a ... corporation, facility, or institution licensed or certified by this state to provide health care or professional services as a physician, hospital, ... ambulance service, ... or agent thereof acting in the course and scope of his employment.” La. R.S. 40:1299.41(A)(10).

|flLa. R.S. 40:1299.41(A)(1) defines an “ambulance service” as:

an entity ... which operates either ground or air ambulances, using a minimum of two persons on each ground ambulance, at least one of whom is trained and registered at the level of certified emergency medical technician basic, or at the intermediate or paramedic levels, or one who is a registered nurse, ... or any officer, employee, or agent thereof acting in the course and scope of his employment.

La. R.S. 40:1299.41(A)(13) defines “malpractice,” as:

any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from defects in blood, or blood components, in the training or supervision of health care providers....

La. R.S. 40:1299.47 provides, in pertinent part, that:

(A)(1) All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel....
(B)(l)(a)(i) No action against a health care provider covered by this Part or his insurer, may be commenced in any court before the claimants’ proposed complaint has been presented to a medical review panel established pursuant to this Section.

Although appellants contend that these unintentional torts were not “healthcare” services, our review of the original and amended petition reflects that appellants specifically alleged that the failure of the emergency medical technicians to hurriedly get to Mr. Encalade, promptly stabilize Mr. Encalade for transport, and quickly return Mr. Encalade to WJMC contributed to the rapidity of his death. Further, appellants specifically allege that WJMC was negligent in failing to properly train the emergency medical technicians.

Medical malpractice is statutorily defined, in part, as “failure to render services timely and the handling of a patient, including loading and unloading of a patient, and ... in the training or supervision of health care providers.” The trial |Bcourt reasoned that “plaintiffs’ allegations fall within the scope of the Louisiana Medical Malpractice Act because it places squarely at issue the emergency medical technicians’ assessment of the patient’s medical condition and the nature of the response (flashing lights and the speed of emergency transport) required by the applicable standard of care.” We find no error in that reasoning. Accordingly, we affirm the grant of defendants’ exception of prematurity. Costs for this appeal are assessed equally between the appellants and the appellees.

AFFIRMED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Rev. James SMART, III, Eugene Smart, Janis Boatner Furbush and Justin Smart v. WEST JEFFERSON MEDICAL CENTER, Ebony Dickerson, RN, Deborah Rodrigue, RN, Mary Turner, RN, Eloise Buras, LPN, Brigetta Yancy, M.D. and Billy R. Procell, M.D.
    No. 09-CA-366.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.
    Writ Denied Feb. 12, 2010.

      John D. Rawls, Attorney at Law, Laramie, Wyoming, for Plaintiff/Appellant.
    James D. “Buddy” Caldwell, Attorney General, J. Elliott Baker, Special Assistant Attorney General, Attorney General’s Office, Covington, Louisiana, for Interve-nor/Appellee.
    Carlton I. Jones, III, David A. Wool-ridge, Jr., Attorneys at Law, Baton Rouge, Louisiana, for Intervenor/Appellee.
    Paul M. Batiza, Attorney at Law, Me-tairie, Louisiana, for Defendant/Appellee.
    Peter J. Butler, Richard G. Passler, Michael C. Luquet, Lydia Habliston Toso, Attorneys at Law, Gretna, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

| sIn this medical malpractice case, appellants seek review of a trial court ruling on issues of prescription and constitutionality of the statute. For the reasons stated herein, we affirm the trial court’s judgment.

On October 13, 2006, Henry Walton, acting through power of attorney held by The Rev. James Smart, III, filed a claim for medical malpractice and a request for a medical review panel against seven healthcare providers as a result of alleged malpractice occurring between October 20 and November 8, 2005. By two letters dated November 1 and 13, 2006, the Patient’s Compensation Fund (PCF) acknowledged receipt of the claim and verified the status of the named healthcare providers. This correspondence also contained the following statements:

In accordance with Act No. 961 of the 2003 Regular Session, which amended LA R.S. 40:1299.47 A(l)(c), effective August 15, 2003, a filing fee of $100 per qualified defendant is due within 45 days from the postmarked date of this notice. * * * Failure to comply shall render the request invalid and without effect and the request shall not suspend the time within which suit must be instituted.

14Henry Walton died on November 28, 2006. On January 9, 2007, counsel for Mr. Walton remitted the filing fee for this claim to the Patient’s Compensation Fund. By letter dated January 22, 2007, the Patient’s Compensation Fund notified the attorney for the claimant that the filing fees remitted for this claim were received beyond the time allotted by statute, and the claim was therefore considered to be invalid and without effect.

In the meantime, on January 11, 2007, a separate but identical claim for the alleged malpractice to Henry Walton was filed by appellants herein, Rev. James Smart, III, Janice Furbush, Eugene Smart and Justin Smart, the closest living heirs of the decedent Henry Walton. On January 18, 2007, the Patient’s Compensation Fund acknowledged receipt of this “amended claim” and on April 19, 2007 the PCF notified attorney for the claimants that the amended claim was assigned a separate number. The statutory filing fees for this claim were timely paid as evidenced by letter dated April 19, 2007.

Thereafter, the defendant healthcare providers filed peremptory exceptions of prescription on the basis of La. R.S. 9:5628 which provides for a one-year prescriptive period for medical malpractice actions. Defendants argued that both the first malpractice claim filed on October 13, 2006 and the second claim filed on January 11, 2007 are prescribed and should be dismissed.

Appellants responded with an opposition to the exception of prescription as well as a Motion to Declare the Statute Unconstitutional. Based on the allegations regarding constitutionality of the challenged statute, an intervention into these proceedings was subsequently filed by the State of Louisiana through the Attorney General. Following a hearing, the trial court | ^granted the exception of prescription and denied the motion to declare the statute unconstitutional. This appeal followed.

Medical malpractice claims must be filed within one year of the date of the alleged act of negligence, or within one year of the date of discovery; however, in all events, such claims must be filed within three years of the act of negligence. La. R.S. 9:5628. Further, La. R.S. 40:1299.47(A) provides in pertinent part:

A. (l)(a) All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided for in this Section. The filing of a request for review by a medical review panel as provided for in this Section shall not be reportable by any health care provider, the Louisiana Patient’s Compensation Fund, or any other entity to the Louisiana State Board of Medical Examiners, to any licensing authority, committee, or board of any other state, or to any credentialing or similar agency, committee, or board of any clinic, hospital, health insurer, or managed care company.
⅜ * ⅜
(c) A claimant shall have forty-five days from the mailing date of the confirmation of receipt of the request for review in accordance with Subparagraph (3)(a) of this Subsection to pay to the board a filing fee in the amount of one hundred dollars per named defendant qualified under this Part.
(d) Such filing fee may be waived only upon receipt of one of the following:
(i) An affidavit of a physician holding a valid and unrestricted license to practice his specialty in the state of his residence certifying that adequate medical records have been obtained and reviewed and that the allegations of malpractice against each defendant health care provider named in the claim constitute a claim of a breach of the applicable standard of care as to each named defendant health care provider.
(ii) An in forma pauperis ruling issued in accordance with Louisiana Code of Civil Procedure Article 5181 et seq. by a district court in a venue in |(iwhich the malpractice claim could properly be brought upon the conclusion of the medical review panel process.
(e) Failure to comply with the provisions of Subparagraph (c) or (d) of this Paragraph within the specified forty-five day time frame in Subparagraph (c) of this Paragraph shall render the request for review of a malpractice claim invalid and without effect. Such an invalid request for review of a malpractice claim shall not suspend time within which suit must be instituted in Subparagraph (2)(a) of this Subsection.
(f) All funds generated by such filing fees shall be private monies and shall be applied to the costs of the Patient’s Compensation Fund Oversight Board incurred in the administration of claims.
(g) The filing fee of one hundred dollars per named defendant qualified under this Part shall be applicable in the event that a claimant identifies additional qualified health care providers as defendants. The filing fee applicable to each identified qualified health care provider shall be due forty-five days from the mailing date of the confirmation of receipt of the request for review for the additional named defendants in accordance with R.S. 40:1299.47(A)(3)(a).

In the present case, claimant Henry Walton through The Rev. James Smart, III as power of attorney, filed the original claim for malpractice and submitted a request for a medical review panel by letter dated October 18, 2006. The Patient’s Compensation Fund confirmed receipt of this request by separate letters dated November 1 and 18, 2007. Pursuant to the mandatory provisions of La. R.S. 40:1299.47(A), filing fees in the amount of $100 per defendant were due no later than 45 days from the dates of these letters.

The record indicates that the filing fees were remitted by the attorney for claimant on January 9, 2008, outside of the 45 day period proscribed by the statute. Although the record also shows that claimant died within the 45 day period, there is no provision in the law which allows a longer period 17within which to pay the fees under such circumstance. The law does allow the fees to be waived in certain specified circumstances, none of which were met in this case. As the filing fees required by statute were not timely paid for the original malpractice claim and request for review panel, the request for review of the malpractice claim is invalid and without effect. That is, it has no effect on the running of prescription of the claim. La. R.S. 40:1299.47(A)(1)(e).

With regard to the claim and request for review panel filed on January 11, 2008, the record indicates that the claim is a survival action filed as a result of the alleged malpractice sustained by decedent prior to his death. There is no dispute that the alleged malpractice occurred and was known to claimants no later than November 8, 2006. As the original claim was rendered invalid and without effect for the failure to timely pay fees, this claim did not suspend the running of prescription. La. R.S. 40:1299.47(A)(l)(e). Any action for medical malpractice must have been filed within one year of this date of the alleged malpractice, or by November 8, 2007. La. R.S. 9:5628. As the claim was not asserted within this time period, it has clearly prescribed.

Further, although appellants argue that the claim filed in 2008 relates back to the original claim filed within the prescriptive period, we do not find |Rthis to be the case. As the original claim was not validly filed, it did riot suspend the running of prescription, and prescription continued to run. Accordingly, the second claim is unable to relate back to any invalidly filed claim and the second claim has therefore prescribed. For these reasons, we find no error in the trial court’s ruling granting defendants’ exceptions of prescription.

Appellants also assert that La. R.S. 40:1299.47(A)(l)(c through g) is unconstitutional. These provisions of the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq., require that in order to file a claim under the Act or a request for a medical review panel, a claimant must request that a medical review panel be convened and pay a fee of $100.00 for each named defendant within 45 days of the confirmation of the receipt of the request by the Patient’s Compensation Fund. La. R.S. 40:1299.47(A)(l)(c). The filing of such a request suspends the time within which suit must be instituted as to the named healthcare providers. La. R.S. 40:1299(A)(2)(a). If the fee is not timely paid, however, the claim is rendered invalid and will not suspend time within which suit must be instituted. La. R.S. 40:1299.47(A)(l)(e). The statute also provides for a waiver of the fee in certain specified circumstances. La. R.S. 40:1299.47(A)(l)(d).

All funds generated by these filing fees shall be applied to costs of the administration of the Patient’s Compensation Fund Oversight Board, which administers requests for medical review panels pursuant to the statute. La. R.S. 40:1299.47(A)(l)(f). According to evidence in the record, the fee was enacted to discourage the indiscriminate naming of multiple defendants in requests for medical review panels.

| following the motion in the trial court asserting this constitutional issue, the Attorney General for the State of Louisiana intervened into these proceedings to defend the constitutionality of the statute. The trial court upheld the constitutionality of the statute, citing Everett v. Goldman, 359 So.2d 1256 (La.1978), in which the Louisiana Supreme Court found that the provisions of the Medical Malpractice Act were reasonable, did not unconstitutionally restrict access to the courts and were rationally related to the public interest. Appellants contend this ruling is in error. We do not agree.

In support of their constitutional argument, appellants argue that the filing fees required by this statute unconstitutionally delegate a judicial function to the executive branch in violation of Article II, Section 2 of the Louisiana Constitution, citing Safety Net for Abused Persons v. Segura, 96-1978 (La.4/8/97), 692 So.2d 1038, which found that a statute imposing a filing fee on civil and criminal court filings to fund domestic abuse services to be unconstitutional. Further, appellants argue the statute unconstitutionally imposed a pre-litigation tax on claimants in violation of Article I, Section 22 of the Louisiana Constitution.

However, unlike the facts in the Segura case, the filing fees imposed by this statute do not involve a judicial function and are not required to be paid at the time of the filing of a lawsuit in violation of the right of access to the courts. The fees are not an attempt to raise revenue for the State general fund. Rather, the fees are collected by an administrative agency to contribute to the funds necessary for the administration of the medical review panel requests. According to evidence in the record, the fee pays only a small part of administrative costs, and the remainder of the costs is Imborne by surcharges assessed to qualified healthcare providers under the Act. Under these circumstances, we find no merit in appellants’ argument that this fee constitutes an impermissible delegation of powers or an impermissible tax to raise the State’s general revenue.

In addition, appellants contend that the intended and actual effects of the statute can be read to prove its unconstitutionality. However, evidence in the record indicates that there were two purposes in instituting the filing fee requirement: to offset the escalating costs of processing panel requests and to encourage those filing claims to seriously review the matter before naming a healthcare provider. The record also indicates that these purposes have been met by imposition of the fees. Our review of this matter shows a rational basis for the imposition of the fees and fails to support a finding of unconstitutionality. We also fail to find that the imposition of the fees in this case in any way unconstitutionally bars appellants’ access to the courts. See, Everett v. Goldman, supra, 359 So.2d at 1268-1269.

We likewise find no merit in appellants’ argument that the filing fees are an unconstitutional taking of private property in violation of Article I, Section 4(B)(1) of the Louisiana Constitution. As previously discussed herein, the imposition of fees holds a rational basis, and there has been no unconstitutional taking as described in appellants’ brief.

Accordingly, for the reasons assigned herein, we find no error in the trial court’s judgment denying the motion to declare the statute unconstitutional and in granting defendants’ exceptions of prescription. The judgment of the trial court is therefore affirmed.

AFFIRMED.

      . The filing dates referred to herein are the dates stated on the various letters which were indicated to be sent by certified mail. See, La. R.S. 40:1299.47(A)(2)(b).

      . Although appellants contend that the law must allow a reasonable time period for the payment of the fee following a claimant's death, the record in this case indicates that the original claim was filed through power of attorney by The Rev. James Smart, III, who was also one of the claimants named in the second filing. Rev. Smart had notice of the fee requirement for this claim which was due weeks after the date of death, and we find that claimant had a reasonable opportunity to timely provide payment of the fee after decedent's death.

      . Appellants rely on the case of Golden v. Patient’s Compensation Fund Oversight Bd. 40,801 (La.App. 2 Cir. 3/8/06), 924 So.2d 459, 463, writ denied, 06-837 (La.6/2/06), 929 So.2d 1261, wherein the court held that fees which were filed two days outside of the 45 day window did not invalidate the claim as suggested by the PCF. However, we find this holding to be distinguishable from the present case. In Golden, the prescriptive period had not yet run on the claim and the court correctly determined that the invalidity concept only addresses a late filing's effect on the suspension of prescription. In the present case, the one year prescriptive period had run at the time the fees became due, and the subsequent invalidity of the claim due to the failure to pay fees resulted in the claim being prescribed.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Lyndon B. JOHNSON.
    No. 09-KA-454.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 24, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Lyndon B. Johnson, Cottonport, LA, Defendant/Appellant, In Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and MARC E. JOHNSON.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2The Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Lyndon Johnson, with possession with intent to distribute cocaine in violation of LSA-R.S. 40:967(A), possession of cocaine in violation of LSA-R.S. 40:967(C), and second offense possession of marijuana in violation of LSA-R.S. 40:966(C). Defendant pled not guilty and filed several pre-trial motions, including a motion to suppress the evidence and statement which was denied after a hearing. The State subsequently filed a second superseding bill of information charging defendant with the original three counts and adding a second count of possession with intent to distribute cocaine. Defendant was re-arraigned on the new bill of information and pled not guilty.

Defendant later withdrew his not guilty pleas and, after being advised of his constitutional rights, pled guilty to all four charges under State v. Crosby, 338 So.2d 584 (1976), reserving his right to appeal the trial court’s denial of his motion to suppress. Pursuant to a plea agreement, the trial court sentenced defendant to twenty-five years at hard labor without the benefit of parole, probation, or suspension of sentence on each of the two counts of possession with intent to ^distribute cocaine, and five years at hard labor on each count of possession of cocaine and second offense possession of marijuana. The trial court ordered all sentences to run concurrently with each other.

The State then filed a multiple offender bill of information seeking to enhance count one, possession with intent to distribute cocaine, alleging defendant had a prior 2002 conviction for possession with intent to distribute cocaine. Defendant admitted the allegations contained in the multiple bill. The trial court vacated defendant’s sentence on count one and, in accordance with the plea agreement, imposed an enhanced sentence under LSA-R.S. 15:529.1 of twenty-five years at hard labor without the benefit of probation or suspension of sentence to run concurrently with his other sentences.

Defendant obtained an out-of-time appeal through an application for post-conviction relief.

FACTS

Defendant’s convictions were the result of guilty pleas. As such, the facts and circumstances surrounding the charged offenses are not fully developed in the record. During the plea colloquy, the State simply stated that at trial it would prove defendant knowingly and intentionally possessed cocaine with the intent to distribute it on February 15, 2008 and April 1, 2008, knowingly possessed cocaine, and knowingly possessed marijuana on February 15, 2008, after having a prior conviction for possession of marijuana.

At the hearing on the motion to suppress, the State presented the testimony of two detectives, who both testified they had obtained separate search warrants for defendant’s home based on information each obtained from a confidential informant that defendant was selling narcotics from his home and a subsequent controlled buy in which each detective was involved. The return on the search |4warrants showed that cocaine, marijuana, drug packaging material, and cash, among other things, were seized from defendant’s residence and vehicle.

ANDERS BRIEF

On appeal, defendant’s appellate counsel filed a brief pursuant to the procedure approved by the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. The Anders procedure used in Louisiana was discussed in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), adopted for use by this Court in State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110, and expanded by the Louisiana Supreme Court in State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiam).

According to Anders, 386 U.S. at 744, 87 S.Ct. at 1400, “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” 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 State v. Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme 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.”

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. State v. Bradford, 676 So.2d at 1110.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could not find any non-frivolous issues to raise on appeal. Counsel indicated the record showed defendant’s guilty pleas were knowing and voluntary. She noted defendant was fully advised of his rights and the sentencing ranges he faced prior to pleading guilty. She also noted the facts recited by the State during the plea colloquy were sufficient to meet the elements of the charged offenses. Counsel further pointed out that defendant’s sentences were imposed in accordance with a plea bargain that was set forth in the record at the time of the plea and, thus, he is precluded from appealing his sentence.

Counsel also reviewed the denial of the motion to suppress and stated she found no errors. She explained the evidence was seized pursuant to search warrants obtained after two separate controlled buys that occurred at defendant’s | ,;residence based on information police obtained from a confidential informant. Counsel noted the record showed that the information given by the confidential informant was corroborated by the police and, thus, the evidence was sufficient to support a probable cause finding for the search warrants.

Further, we have conducted our own review of the record and have thoroughly examined the minute entries, the pleadings, the guilty plea and sentencing proceedings, the multiple offender proceedings, and the motion to suppress hearing. Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal.

Along with the appellate brief and a request for an error patent review, defendant’s appellate counsel has filed a motion to withdraw as attorney of record, which states she complied with the requirements of Anders, and that she notified defendant of his right to file a supplemental brief. Defendant has filed a pro se supplemental brief assigning one error which we will now address.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that his trial counsel was ineffective during the motion to suppress proceedings. Specifically, defendant alleges that trial counsel failed to put forth any evidence which discredited or impeached the testimony presented by the State. He also claims that trial counsel failed to raise any legal reason to suppress the evidence, particularly pointing to counsel’s failure to challenge the search warrant on the basis the statute that allows a commissioner to sign a warrant is unconstitutional.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution of 1974. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney’s performance was |7deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Soler, 93-1042 (La.App. 5 Cir. 4/26/94), 636 So.2d 1069, 1075, writ denied, 94-1361 (La.11/4/94), 644 So.2d 1055. The error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Serio, 94-131 (La.App. 5 Cir. 6/30/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388. In order to show prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Soler, 636 So.2d at 1075.

The Sixth Amendment does not guarantee a defendant errorless counsel or counsel judged ineffective by hindsight. Ineffective assistance claims are assessed on the facts of the particular case as seen from the counsel’s perspective at the time. As such, there is a strong presumption that counsel’s conduct will fall within the wide range of reasonable professional assistance. State v. Cambre, 05-888 (La. App. 5 Cir. 7/25/06), 939 So.2d 446, 460, writ denied, 06-2121 (La.4/20/07), 954 So.2d 158.

An ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595.

In the present case, the record is sufficient to address defendant’s claim of ineffective assistance of counsel. We have thoroughly reviewed the motion to |ssuppress proceedings and find, for the reasons which follow, that defendant failed to prove that counsel was ineffective.

In the present case, the evidence was seized pursuant to search warrants. As a general rule, searches and seizures must be conducted pursuant to a validly executed search warrant or arrest warrant. State v. Holmes, 08-719 (La.App. 5 Cir. 3/10/09), 10 So.3d 274, 278. When evidence is seized pursuant to a search warrant, the defendant bears the burden of proof at a hearing on his motion to suppress that evidence. LSA-C.Cr.P. art. 703(D); State v. Johnson, 08-265 (La.App. 5 Cir. 8/19/08), 994 So.2d 595, 599.

A search warrant may be issued only upon probable cause established to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. State v. Johnson, 994 So.2d at 598. Probable cause for the issuance of a search warrant exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Lee, 05-2098 (La.1/16/08), 976 So.2d 109, 122, cert. denied, - U.S. -, 129 S.Ct. 143, 172 L.Ed.2d 39 (2008). An affidavit supporting a search warrant is presumed to be valid, and the defendant has the burden of proving that the representations made in the affidavit are false. State v. Johnson, 994 So.2d at 599.

At the motion to suppress hearing, Detective Shane Klein testified he was the affiant on the search warrant obtained on February 7, 2008, and executed on February 15, 2008. In his affidavit submitted for the search warrant, Detective Klein stated he obtained information from a confidential informant that defendant was distributing large quantities of crack cocaine from his residence. He stated the | conformant gave defendant’s name, exact residence, and described defendant’s vehicle. , Through independent investigation, Detective Klein learned defendant had a criminal history and corroborated information given to him by the confidential informant. Detective Klein also stated the informant participated in a controlled buy in which he was able to purchase crack cocaine from defendant. The affidavit sought to search defendant’s residence and vehicle for controlled dangerous substances and any instrumentalities related to the use, packaging, and distribution of drugs.

Also, Detective Ashton Gibbs testified he was the affiant in the application for a search warrant of defendant’s residence dated March 31, 2008. He explained he applied for a search warrant based on information from a reliable confidential informant that defendant was distributing crack cocaine from his residence. He further stated he conducted a controlled buy in which the informant purchased cocaine from defendant. The affidavit sought to search defendant’s residence. As a result of executing the search warrants, the officers seized cocaine, marijuana, drug packaging material, cash, and various other items.

After considering the evidence presented, the trial judge denied the motion to suppress. Defendant contends that his trial counsel was ineffective for failing to discredit or impeach the testimony presented by the State, and that this insufficient representation by his attorney resulted in the improper denial of his motion to suppress. We recognize that trial counsel did not call any of his own witnesses at the suppression hearing; however, he cross-examined the State witnesses and questioned them about the confidential informants, the controlled buys, and the applications for the search warrants.

[ inDefendant’s trial counsel asked Detective Klein about how he first came into contact with the confidential informant that he used in the controlled buy. Detective Klein stated that another police agency came across this individual during the course of an investigation, and this individual wanted to provide information in return for money on a subject selling crack in the Jefferson Parish area. Trial counsel also brought out, through cross-examination, that the search warrant did not indicate the specific date of the controlled buy; that Detective Klein did not have a view of the residence during the buy; and that Detective Klein did not personally see the person who answered the door.

With regard to Detective Gibbs, trial counsel cross-examined him about the confidential informant; and he testified that the confidential informant that he used for the controlled buy was working off charges. He also stated that the application presented for the issuance of the search warrant did not indicate the specific date of the buy, but merely gave a time frame of “within the last 48 hours.” Trial counsel also questioned Gibbs about the circumstances surrounding the buy. Although defendant’s counsel did not call his own witnesses, we find that through his cross-examination, he effectively tried to discredit the State’s evidence at the suppression hearing.

Defendant further asserts that trial counsel was ineffective because he failed to challenge the search warrants on the basis they were signed by a commissioner as opposed to an elected judge. He maintains his counsel should have argued that LSA-R.S. 13:716(B)(1), which delegates authority to a commissioner to issue search warrants, is unconstitutional.

In State v. Umezulike, 03-1404 (La.2/25/04), 866 So.2d 794, 801-02, the Louisiana Supreme Court found LSA-R.S. 13:716(B)(1) to be constitutional. The | ^supreme court determined that the grant of authority to a commissioner to issue search warrants on probable cause is not unconstitutional noting that there is no requirement that a warrant must be issued by a judge and that a probable cause determination is a quasi-judicial function and is not a function that lies solely with the judiciary. Thus, defendant’s claim that the search warrants were invalid because they were unconstitutionally signed by a commissioner as opposed to a judge is a meritless argument. A trial counsel’s failure to raise a meritless argument cannot be ineffective assistance of counsel. See State v. Richardson, 00-416 (La.App. 4 Cir. 2/7/01), 780 So.2d 1103, 1110, writ denied, 01-998 (La.8/30/02), 823 So.2d 934.

Based on the foregoing reasons, we find that defendant failed to prove that counsel’s performance was deficient or that the deficiency prejudiced him. Accordingly, this assigned error is without merit.

ERROR PATENT DISCUSSION

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals a sentencing error which requires corrective action.

In the present case, the record reflects that defendant received an illegal sentence on counts one and two, possession with intent to distribute cocaine. In particular, defendant received the entire twenty-five year sentences without the benefit of parole, probation, or suspension of sentence when LSA-R.S. 40:967(B)(4)(b) provides that only the first two years of the sentence shall be without benefits. Although the sentence on count one was vacated in favor of an enhanced multiple offender sentence, defendant’s sentence on count two remains illegal and must be corrected.

| igWhen a sentencing error involves the imposition of restrictions beyond what the legislature has authorized in the sentencing statute, the Louisiana Supreme Court has ruled that the appellate courts “should not rely on LSA-R.S. 15:301.1(A) to correct the error as a matter of law but should correct the sentence on its own authority under LSA-C.Cr.P. art. 882 to correct an illegal sentence ‘at any time.’ ” State v. Sanders, 04-17 (La.5/14/04), 876 So.2d 42 (per curiam). Thus, we amend defendant’s sentence on count two to reflect only the first two years of the sentence is to be served without the benefit of parole, probation, or suspension of sentence. See State v. McCray, 07-143 (La. App. 5 Cir. 7/30/07), 966 So.2d 616, 622, writ denied, 07-1826 (La.2/1/08), 976 So.2d 715. In accordance with our amendment of the sentence, we remand the matter to the district court with an instruction to amend the minute entry to reflect that only the first two years of defendant’s twenty-five year sentence on count two be served without the benefit of parole, probation, or suspension of sentence and to transmit the amended minute entry to the officer in charge of the institution to which the defendant has been sentenced. See State ex rel. Roland v. State, 06-0244 (La.9/15/06), 937 So.2d 846 (per curiam).

For the reasons set forth herein, we grant appellate counsel’s motion to withdraw as attorney of record. We affirm defendant’s conviction and sentence, as amended, and remand the matter to the district court with instructions relating to the amended sentence.

CONVICTION AND SENTENCE AFFIRMED AS AMENDED, REMANDED WITH INSTRUCTIONS.

      . We note that we find no error in the trial court’s denial of defendant's motion to suppress because the evidence seized from defendant’s residence was done so through valid search warrants. The record shows that under the totality of the circumstances, the search warrants were issued based on probable cause.

      . See also LSA-R.S. 13:717(D)(2)(h) which specifically pertains to the commissioners for the 24th Judicial District Court.