author: GARRETT, J.

text:
    Mary Sue MARIONEAUX, the Lela Mae Johnson Marioneaux Trust F/B/O Mary Sue Marioneaux, Plaintiffs-Appellees v. Lucien Harry MARIONEAUX, Sr., Individually and as Former Trustee of the Lela Mae Johnson Marioneaux Trust, Lucien Harry Marioneaux, Jr., Marioneaux Properties, L.P., Hbm Interests, L.L.C., Eighty Acres, L.L.C. and Wallace Lake Marioneaux, L.L.C., Defendants-Appellants
    No. 52,212-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    COOK, YANCEY, KING & GALLOWAY, By: Bernard S. Johnson, Lisa C. Cronin, Shreveport, Counsel for Appellants, Lucien Harry, Marioneaux, Jr., Marioneaux Properties, L.P., HBM Interests, L.L.C., Eighty Acres, L.L.C., and Wallace Lake Marioneaux, L.L.C.
    WEEMS, SCHIMPF, HAINES, SHEMWELL & MOORE, APLC, By: Carey T. Schimpf, Kenneth P. Haines, Robert H. Shemwell, Jr., Kyle A. Moore, Shreveport, Counsel for Appellees
    McMICHAEL, MEDLIN, D'ANNA, WEDGEWORTH & LAFARGUE, L.L.C., By: James C. McMichael, W. Deryl Medlin, Shreveport, Counsel for Intervenor/ Appellee, The Lela Mae Johnson Trust F/B/O Harry Brewster Marioneaux, III, by and through Marshall Burton, Successor Trustee
    Before GARRETT, STONE, and McCALLUM, JJ.
   GARRETT, J.

The defendants, Lucien Harry Marioneaux, Sr., Lucien Harry Marioneaux, Jr., HBM Interests, LLC, Marioneaux Properties, LP, Eighty Acres, LLC, and Wallace Lake Marioneaux, LLC, appeal from a trial court ruling granting summary judgment in favor of the intervenor, the Lela Mae Johnson Marioneaux Trust for the benefit of Harry Brewster Marioneaux, III, which dismissed the intervenor as a party in this matter. For the following reasons, we reverse and remand the matter to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises from a dispute concerning various complex transactions that occurred following the death of Lela Mae Johnson Marioneaux ("Lela"). Lela was married to Harry Brewster Marioneaux, Sr. ("Harry"). They had three children, Lucien Harry Marioneaux, Sr. ("Lucien"), Mary Sue Marioneaux ("Sue"), and Harry Brewster Marioneaux, Jr. ("Bruce Jr."). The plaintiffs in this matter are Sue and the Lela Mae Johnson Marioneaux Trust for the benefit of Mary Sue Marioneaux ("Sue Trust").

Lela executed a will in 1984, and died on February 3, 1994, survived by her husband and three children. Her estate was valued at $1.7 million. Under her will, Lela gave Harry her interest in the family home, furnishings, and automobiles, and a lifetime usufruct over all residuary property. She left the naked ownership of one-third of her residuary estate to Lucien, individually, and two-thirds to Lucien as the trustee for the Lela Mae Johnson Marioneaux Trust for the benefit of Sue and Bruce Jr. ("LMJM Trust"). The LMJM Trust received the naked ownership of real estate, stocks, bonds, and cash. The real estate included a large amount of immovable property, together with mineral rights, in DeSoto Parish with an additional 81 acres of mineral rights from property expropriated for the building of I-49.

In March 2001, Bruce Jr. died intestate and was survived by one child, Harry Brewster Marioneaux, III ("Bruce III"), who was the successor beneficiary to his father's interest in the LMJM Trust.

After Lela's death, through a series of transactions, Harry donated some of his interest in the DeSoto Parish property, one-third to Lucien, and two-thirds to the LMJM Trust. According to the plaintiffs, in 2004, Lucien executed a mineral lease affecting the property. The plaintiffs claim that, instead of a lease bonus, they received a 5% interest in leases on 3,877.94 mineral acres in DeSoto Parish. In order to divide the lease interests, Lucien formed four LLCs, each of which received a 1.25% interest in the mineral leases. The parties who received a portion of the mineral interest were Harry, Lucien, the LMJM Trust, and Lucien Jr. However, the plaintiffs contend that, because the LMJM Trust owned more than one-half the immovable property, it should have gotten at least one-half of the lease interest, rather than 1.25%.

The plaintiffs claim that Lucien formed Wallace Lake Marioneaux, LLC ("WLM"), and transferred all the 5% lease interest to that entity without paying the LMJM Trust. They further maintain that Lucien then sold the lease interest from WLM to a large oil and gas company for several million dollars, and he and Lucien Jr. kept all the money. They allege that, on July 19, 2004, Lucien gave Lucien Jr. a 9% mineral interest in all 1,196 acres owned in DeSoto Parish.

The transaction largely at issue in the present matter occurred in October 2005. Ostensibly as part of an estate plan for Harry, and to reduce federal estate tax exposure, Lucien began transferring assets owned by the LMJM Trust. Lucien created several entities including HBM Interests, LLC ("HBM Interests"), and HBM CMS, LLC ("HBM CMS"). Lucien and Harry transferred all their interest and all the interest of the LMJM Trust in the DeSoto Parish immovable property to HBM Interests. Lucien contributed the LMJM Trust's interest in Lela's brokerage account to HBM CMS. The plaintiffs contend that this caused a commingling of the trust assets with property owned by Lucien and Harry. The LMJM Trust's interest in these companies was then transferred to Marioneaux Properties, LP ("the Partnership"), a Texas limited partnership created by Lucien and Harry. Lucien and Harry transferred all their interests to the Partnership as well.

According to the plaintiffs, in 2008 and 2009, with the discovery of the Haynesville Shale, large amounts of money began coming into the Partnership and Lucien, Lucien Jr., and Harry began taking large sums of money out of the Partnership to the detriment of the LMJM Trust. They also contend that Lucien sold Trust property to himself and to Eighty Acres, LLC, another company that he managed. The father, Harry, died in 2012.

In February 2014, Bruce III filed a suit against the same defendants involved in this suit seeking, inter alia , to declare null certain conveyances, particularly the October 2005 transfers, and to recover LMJM Trust assets wrongfully withheld or disposed of. According to the plaintiffs in the present suit, on November 17, 2014, after the alleged discrepancies regarding the LMJM Trust were brought to light in the suit filed by Bruce III, Lucien, as the trustee of the LMJM Trust, unilaterally divided that Trust into the LMJM Trust for the benefit of Harry Brewster Marioneaux, III ("Bruce III Trust"), and the Sue Trust. Lucien was initially the trustee of these new Trusts, but eventually he resigned. Sue and attorney Kyle Moore were named co-trustees of the Sue Trust in September 2015. Moore was also named the trustee of the Bruce III Trust. Moore and his law firm also represented Bruce III in the suit filed in February 2014.

In December 2014, Bruce III; the Bruce III Trust, through its trustee, Moore; Lucien; Lucien Jr.; the LMJM Trust; the Sue Trust ; the Harry Brewster Marioneaux Trust; HMB Interests; the Partnership; Eighty Acres, LLC; WLM; HBM Oil and Gas, LLC; and Marioneaux Management signed a settlement agreement in which Bruce III agreed to dismiss the lawsuit in exchange for the Bruce III Trust receiving a specified tract of land - along with mineral rights, cash, and funds in brokerage accounts. The settlement specified that the various entities transferring immovable property and funds to the Bruce III Trust had "full power and authority" to make the transfer. The parties to the settlement agreed to release, acquit, and discharge each other from any other claims. The settlement included a "further instruments" clause in which the parties agreed they would execute and deliver, or cause to be executed and delivered, to the respective party such further instruments as may be necessary to effectively consummate the transactions contemplated by the agreement.

In November 2015, Sue and the Sue Trust, through its trustee, Moore, filed the present suit against Lucien, Lucien Jr., HBM Interests, the Partnership, Eighty Acres, and WLM, for a breach of trust and failure to account for LMJM Trust property, essentially the same issues that were raised in the suit filed by Bruce III. The plaintiffs are represented by the same law firm that represented Bruce III in his suit. The plaintiffs claimed that the transfers of LMJM Trust property and assets in October 2005 were absolute nullities. The suit is captioned "Petition for Preliminary and Permanent Injunction, Trust Accounting, Judgment Declaring Trust Transfers Absolute Nullities and Return of Trust Assets." The complex petition and attachments consist of 80 pages. The demands which seek to have certain transactions declared to be absolute nullities have never been amended or withdrawn.

In response to the suit, the defendants filed numerous exceptions. Germane to the matter before us is the peremptory exception of nonjoinder of a necessary party. The defendants maintained that Kyle Moore, as trustee for the Bruce III Trust, should be added as a party to the action under La. C.C.P. art. 641. The defendants' rationale was that Lucien's purported conveyance of the LMJM Trust's interest in DeSoto Parish property occurred before the settlement with Bruce III and the Bruce III Trust. If the prior transactions were found to be absolute nullities, it would affect title to the property transferred to the Bruce III Trust in the settlement.

The plaintiffs opposed the exception, claiming that, in the settlement agreement, the Sue Trust waived any right to attack the settlement with the Bruce III Trust, the Bruce III Trust was a good faith third party transferee under La. C.C. art. 2035, and any declaration of nullity of the transfers made by Lucien would not affect title to the immovable property now held by the Bruce III Trust. They also claimed that, under the terms of the settlement, if any of Lucien's actions were declared null, the parties would be required by the "further instruments" clause in the settlement agreement to execute documents necessary to consummate the agreement.

On May 16, 2016, the trial court entered a judgment sustaining the exception of nonjoinder of a necessary party. Instead of the plaintiffs naming the Bruce III Trust as a defendant in the present suit, on June 15, 2016, the Bruce III Trust, now represented by different counsel, filed a petition of intervention. The petition outlined the details of the settlement agreement, and requested to be dismissed from the proceedings. Moore was the trustee of the Bruce III Trust. He eventually resigned as trustee in June 2016, and Marshall Burton was named as successor trustee. An amended petition of intervention was filed, reflecting this change.

On December 19, 2016, the intervenor, the Bruce III Trust, filed the motion for summary judgment at issue here, seeking to be dismissed from this suit. Attached to the motion was a copy of the December 2014 settlement agreement described above. The Bruce III Trust claimed that the plaintiffs agreed to abide by the terms of the settlement between the defendants and the Bruce III Trust and noted that the defendants had made no claims against it.

The Bruce III Trust urged that, if any of the conveyances were found to be null, the settlement would stand, because the Bruce III Trust is a good faith third party transferee of the property received in the settlement and entitled to the protection afforded by La. C.C. art. 2035. Therefore, the Bruce III Trust argued that it should be dismissed from this suit.

The defendants opposed the motion for summary judgment, arguing that, if the transfer of the LMJM property to HBM Interests, and ultimately to the Partnership, was a nullity, then the Partnership did not have good title to convey to the Bruce III Trust in the settlement. The defendants argued that the plaintiffs in the main demand were seeking to annul the 2005 transfers of immovable property and other assets on the ground that it was an absolute nullity, and the Bruce III Trust settlement relies upon the validity of those transactions. The defendants contended that the 2005 transfers cannot simultaneously be absolute nullities and the valid basis for the title to property held by the Bruce III Trust.

On July 28, 2017, the defendants filed a supplemental opposition to the motion for summary judgment, attaching an affidavit from a CPA, Elizabeth Killough. The affidavit outlined the effects on the case if the trial court found that the 2005 transfers were absolute nullities. She averred that such a decision would nullify portions of Harry's estate plan, meaning that certain assets would not have passed out of his estate. According to the defendants, because Harry left his estate to Lucien and Sue, his surviving children, and not to Bruce III, his grandson, it would then become necessary to restore to Harry's estate some of the assets received in the settlement by the Bruce III Trust. According to Killough, declaring the 2005 transfers to be absolute nullities would require the Bruce III Trust to return approximately $850,106, as well as immovable property and mineral interests.

Also in July 2017, the defendants filed a reconventional demand and cross-claim against Moore, as trustee of the Sue Trust, and as former trustee of the Bruce III Trust; Sue; Marshall Burton, the current trustee of the Bruce III Trust; and Bruce III. The defendants alleged that, in the settlement agreement with the Bruce III Trust, the plaintiffs admitted the prior transfers of assets by the defendants were valid and were not absolute nullities. The defendants point out that Moore authored the settlement, which recognized the disputed transfers as valid, but, when the present suit was filed on behalf of the Sue Trust, he alleged that the transfers were invalid. If the trial court granted relief to the plaintiffs in this suit and found the 2005 transfers to be invalid, the defendants contend that they would be entitled to rescission of the settlement agreement. They asked for that relief in their pleading.

The motion for summary judgment, along with other matters, was argued before the trial court on August 3, 2017. The Bruce III Trust asserted that any decision by the trial court as to the validity of the various transfers of assets from the LMJM Trust would not undo the settlement with the Bruce III Trust because under La. C.C. art. 2035, the Bruce III Trust and all others who, in good faith, received title to any of the property in the various transactions would not lose their rights to the property. If the transfers were found to be null and the assets could not be returned, the legal remedy would be for the defendants to pay damages. Also, according to the Bruce III Trust, Sue and the Sue Trust had no objection to what the Bruce III Trust received in the settlement.

The defendants argued that, if the trial court finds that the October 2005 transfers are nullities, the title to property held by the Bruce III Trust will be affected. They contended that the transfer cannot be both a nullity and a valid instrument in the chain of title for the Bruce III Trust. The defendants also maintained that, because Bruce III was not a third party transferee in good faith, La. C.C. art. 2035 would not preserve the title of the Bruce III Trust. The defendants also pointed out that the reconventional demand and cross-claim against Moore, as trustee of the Sue Trust, and as former trustee of the Bruce III Trust; Sue; Marshall Burton, the current trustee of the Bruce III Trust; and Bruce III had been filed after the motion for summary judgment, which placed at issue the validity of the settlement agreement.

The trial court ultimately reasoned that, no matter what the decision might be on the merits, under the "further instruments" provisions in the settlement agreement, documents would have to be executed to put the Bruce III Trust in the same position it held after the settlement. The court found that it would be a waste of time and finances to require the Bruce III Trust to participate in this litigation and granted the summary judgment. On August 8, 2017, the trial court signed a judgment granting summary judgment in favor of the Bruce III Trust, dismissing it from the suit, at the defendants' cost. The judgment also dismissed the cross-claim of the defendants against the Bruce III Trust. The defendants appealed.

MOTION FOR SUMMARY JUDGMENT

On appeal, the defendants argue that the trial court erred in granting summary judgment in favor of the Bruce III Trust, releasing it from participation in these proceedings. The defendants urge that, if the October 2005 transfers of assets out of the LMJM Trust are found to be absolutely null, then the conveyance of property to the Bruce III Trust would also be invalid. They contend this creates genuine issues of material fact regarding the effect of declaring absolutely null a conveyance in the chain of title of property given to the Bruce III Trust in the settlement. They also claim that the trial court erred in dismissing their cross-claim against the Bruce III Trust. These arguments have merit.

Legal Principles

We note that, where a litigant has been found to be a necessary party to a suit and intervenes, the use of a motion for summary judgment asking to be released from the lawsuit is rather unusual. However, this is how this case has been handled and presented to us and we will conduct our review using the law applicable to appeals from the grant of a motion for summary judgment.

Appellate courts review motions for summary judgment de novo , using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Peironnet v. Matador Res. Co. , 2012-2292 (La. 6/28/13), 144 So.3d 791 ; Bank of Am., N.A. v. Green , 52,044 (La. App. 2 Cir. 5/23/18), 249 So. 3d 219, 2018 WL 2325024.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth , 2010-0343 (La. 1/19/11), 57 So.3d 1002. Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2).

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. La. C.C.P. art. 966(A)(3).

A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Jackson v. City of New Orleans , 2012-2742 (La. 1/28/14), 144 So.3d 876, cert. denied , --- U.S. ----, 135 S.Ct. 197, 190 L.Ed. 2d 130 (2014). In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Chanler v. Jamestown Ins. Co. , 51,320 (La.App. 2 Cir. 5/17/17), 223 So.3d 614, writ denied , 2017-01251 (La. 10/27/17), 228 So.3d 1230.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

Discussion

In its motion for summary judgment, the Bruce III Trust claimed that any and all claims that could have been asserted against or by the Bruce III Trust have been irrevocably settled or compromised. The only attachment to the motion was the copy of the December 2014 settlement agreement. The Bruce III Trust also argued in its motion that no party had asserted any claims against it.

After the Bruce III Trust filed its motion for summary judgment, the defendants filed a cross-claim and reconventional demand asserting that the claims made in this lawsuit attack the terms of the settlement and constitute a breach of that agreement. According to the defendants, if the 2005 transfers of property are declared to be null, good title was not conveyed to the Bruce III Trust in the settlement agreement. If the 2005 transfers were null, the defendants claim it is as though the transfers never occurred and the parties must be placed in the same positions they occupied before the transfers.

The defendants also argued in their reconventional demand and cross-claim that, in this suit, when the Sue Trust alleged that the 2005 transfers were absolute nullities, it attacked the terms of the settlement agreement in which it had admitted that those transfers were valid. The defendants argue this constitutes a breach of the settlement agreement, entitling them to rescission of the settlement.

At the core of this dispute is whether the 2005 transfers from the LMJM Trust were absolute nullities and, if they were, what effect that would have on the settlement with the Bruce III Trust. The defendants maintain that the October 2005 transfer cannot be both an absolute nullity and the valid basis for the conveyance of property to the Bruce III Trust. The defendants point out that their cross-claim against the Bruce III Trust seeks to rescind the settlement if the 2005 conveyances are found to be null. The defendants urge that there is still a genuine issue of material fact as to whether this relief may be granted. The defendants also contend that, according to the affidavit of their CPA, if the 2005 transfers are found to be null, the Bruce III Trust might be called upon to restore a large sum of money, as well as immovable property and mineral rights.

The plaintiffs and the Bruce III Trust assert that any and all claims that could have been asserted against the Bruce III Trust have been irrevocably settled and compromised in the settlement agreement. They maintain that, even if some claims were not settled, the Bruce III Trust is a third party in good faith and would have clear title to the property received in the settlement by operation of La. C.C. art. 2035. They also maintain that any remedy the plaintiffs would have if the 2005 conveyances were found to be null would be limited to the recovery of damages and not the return of property.

The trial court did not specifically address all of these complex legal issues. Instead, the trial court focused on the "further instruments" clause as the simple device which would somehow cure all the complicated issues presented here. The trial court did not give adequate consideration to the current procedural posture of the case, which changed after the reconventional demand and cross-claim were filed.

Based upon this record, we find that unresolved legal issues and genuine issues of material fact are presented in this extremely complex suit, which preclude the granting of summary judgment. The Bruce III Trust has failed to show conclusively that the Trust's property rights received in the settlement would be completely unaffected if the trial court ruled that the 2005 transfers were absolute nullities.

The Bruce III Trust claims, in the alternative, that it is a third party in good faith, and its title to property received in the settlement is automatically protected by the provisions of La. C.C. art. 2035. However, the Bruce III Trust makes only a bare assertion that this provision applies here. Reasonable persons could disagree as to whether the facts presented show that the Bruce III Trust is a third party in good faith under La. C.C. art. 2035. Accordingly, there is a genuine issue of material fact on this issue.

Although the trial court reasoned that the "further instruments" clause in the settlement would require the parties to execute documents to preserve the settlement, Sue, individually, was not a party to the agreement. There is a genuine issue of material fact as to whether the "further instruments" clause in the settlement agreement would necessarily preserve the Bruce III Trust's title to the property received in the settlement.

The trial court originally determined that the Bruce III Trust was a necessary party to these proceedings. The Bruce III Trust has failed to show that there is no possible scenario in which the settlement and the title to the property received by the Bruce III Trust might be called into question. Therefore, the Bruce III Trust is not entitled to summary judgment.

The trial court erred in granting summary judgment in favor of the Bruce III Trust. The trial court also erred in dismissing the defendants' cross-claim against the Bruce III Trust.

CONCLUSION

For the reasons stated above, the trial court judgment granting summary judgment in favor of the intervenor, the Bruce III Trust, and dismissing the defendants'

cross-claim against the Bruce III Trust, is reversed. The matter is remanded to the trial court for further proceedings. Costs in this court are assessed to the Bruce III Trust.

REVERSED AND REMANDED.

      Lucien Sr. died in July 2016. By consent motion, Lucien Jr., as administrator of his father's succession, was substituted in this case. Lucien Jr. was also named as a defendant in his individual capacity.

      The Marioneauxs apparently owned almost 1,200 acres of land in DeSoto Parish.

      According to the plaintiffs, Lucien claimed this was compensation for legal work to Lucien Jr., who was an associate with a Shreveport law firm.

      Sue was not a party to the settlement agreement. Lucien, in his then-capacity as trustee for the LMJM Trust (which had been divided into two trusts in November 2014) and the "Lela Mae Johnson Marioneaux Trust # 2," executed the settlement agreement. We surmise that the "Lela Mae Johnson Marioneaux Trust # 2" is the Sue Trust, but the settlement document is confusing.

      La. C.C.P. art. 641 provides:
      A person shall be joined as a party in the action when either:
      (1) In his absence complete relief cannot be accorded among those already parties.
      (2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
      (a) As a practical matter, impair or impede his ability to protect that interest.
      (b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

      La. C.C. art. 2035 provides:
      Nullity of a contract does not impair the rights acquired through an onerous contract by a third party in good faith.
      If the contract involves immovable property, the principles of recordation apply to a third person acquiring an interest in the property whether by onerous or gratuitous title.

      The defendants filed a motion to disqualify Moore and his law firm as plaintiffs' counsel, claiming a conflict of interest between his representation of the plaintiffs and his former representation of the Bruce III Trust, noting that Moore is a necessary witness in the case. The motion was denied without prejudice by the trial court on January 19, 2017.

      At the time the motion for summary judgment was filed, there were no claims pending against Bruce III or the Bruce III Trust. However, as explained infra , this soon changed because the defendants filed claims against Moore, as trustee of the Sue Trust, and as former trustee of the Bruce III Trust; Sue; Marshall Burton, the current trustee of the Bruce III Trust; and Bruce III. Therefore, one of the central arguments made in the motion for summary judgment, which was never supplemented, was incorrect by the time the motion for summary judgment was argued.

      After the filing of the intervenor's motion for summary judgment, but before the argument on that issue, numerous exceptions and motions for partial summary judgment were also filed. Some of the rulings on these various issues occurred close in time to the August 3, 2017 ruling on the motion for summary judgment at issue here.
      On May 8, 2017, the defendants filed an exception of res judicata , arguing that the plaintiffs' claims in this suit are foreclosed by the settlement reached with the Bruce III Trust. On August 15, 2017, the trial court sustained the exception as to the claims of the Sue Trust that the October 2005 conveyance of immovable property from the LMJM Trust to HBM Interests was a nullity. The exception was denied as to Sue individually.
      On November 30, 2017, after the ruling on the motion for summary judgment at issue here, the defendants filed another exception of res judicata , noting that the trial court previously held that the transfer of immovable property in October 2005 is not subject to a claim of nullity by the Sue Trust because that Trust participated in the settlement agreement with Bruce III and his Trust in which the transfer was relied upon by the parties to resolve the lawsuit. According to the defendants, the Sue Trust cannot now continue to claim that the October 2005 transfer of cash and securities to HBM CMS was an absolute nullity. This motion apparently has not been ruled on. On February 2, 2018, this court stayed the proceedings in the trial court pending resolution of this appeal.
      On June 30, 2017, the defendants filed a motion for partial summary judgment to declare the October 2005 conveyance by Lucien, as trustee of the LMJM Trust, to HBM Interests to be valid. According to the defendants, the parties agreed that the transfer of immovable property was made to HBM Interests in exchange for a membership interest in that company. The plaintiffs filed a motion for partial summary judgment to have this same transaction declared to be an absolute nullity. On August 28, 2017, shortly after the grant of summary judgment in favor of the intervenor in this case, the trial court denied both the plaintiffs' and the defendants' motions on this issue. Therefore, the validity of the October 2005 transfer is still before the trial court.
      On July 20, 2017, the plaintiffs filed motions for partial summary judgment to have the mineral deed to Lucien Jr. on July 19, 2004, and a transfer of 285 acres of property from the LMJM Trust to Lucien individually, declared absolute nullities. On August 28, 2017, the trial court denied partial summary judgment on the claim that the February 2010 transfer to Lucien was an absolute nullity. The trial court granted the plaintiffs' motion for partial summary judgment finding the July 19, 2004 mineral deed to Lucien Jr. to be an absolute nullity. To say that this matter has progressed in a piecemeal manner would be an understatement.

      We note that the defendants' claims against Bruce III, in his individual capacity, were not included in the motion for summary judgment and have not been dismissed.

      We acknowledge the Trust's contention that it should not have to incur legal expenses to participate in this litigation. However, the defendants did not institute this complex suit which seeks to have transactions declared absolute nullities. The plaintiffs have not amended the suit to delete these nullity claims. We observe that one of the provisions of the settlement agreement provides:
      6.2 Specific Performance and Attorney Fees. Each party to this Agreement shall be entitled to enforce specific performance hereof in addition to any other remedy at law or as provided in this Agreement. In the event of any litigation arising under this Agreement, the prevailing party, in addition to other rights and damages, shall be entitled to reimbursement for reasonable attorney's fees and costs . [Emphasis supplied.]
      Perhaps Bruce III and the Bruce III Trust may have some recourse to recoup legal expenses. We express no opinion on this issue.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Joseph MILLER, Jr., Appellant
    No. 52,211-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    LOUISIANA APPELLATE PROJECT By: Douglas L. Harville, Counsel for Appellant
    JOSEPH MILLER, JR., Pro Se
    JOHN M. LANCASTER, District Attorney, Oak Grove, PENNY W. DOUCIERE, KENNETH D. WHEELER, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, WILLIAMS, and GARRETT, JJ.
   WILLIAMS, J.

The defendant, Joseph Miller, Jr., was charged by bill of information with aggravated second degree battery, in violation of La. R.S. 14:34.7. Pursuant to a plea agreement, the defendant pled guilty as charged in exchange for a 12-year sentencing cap. Thereafter, the trial court sentenced the defendant to 10 years' imprisonment at hard labor. For the following reasons, we affirm.

FACTS

The defendant, Joseph Miller, Jr., and the victim, Linda Young, were involved in a romantic relationship. On October 8, 2014, Young was at her home in Delhi, Louisiana. At approximately 9:00 p.m., Young's aunt came to her home and asked Young to drive her "to town." As the two women exited the house, they observed the defendant sitting under a tree in Young's front yard. As she was leaving with her aunt, Young informed the defendant that a man named Larry Rancher had repaired her washing machine. Thereafter, Young and her aunt left the home in Young's vehicle. As they were riding, her aunt cautioned Young about the defendant's possessive and violent character.

When Young returned home approximately 30 minutes later, she did not see the defendant in the yard. She entered her home and went directly to the bathroom. The defendant approached her from behind and demanded, "How did you pay [Rancher]? Did you f**k him?" Young replied, "No" and told the defendant to "get [his] crazy self out of [her] house." The defendant walked out of the room, then returned and struck Young from behind, knocking her to the floor. Thereafter, using a kitchen knife, the defendant stabbed Young once in the back, along her spine, and once in the upper abdominal area under one of her breasts. The incident was witnessed by Young's nine-year-old son and 13-year-old grandson. Young's grandson ran to a neighbor's house for assistance; Young was transported to the hospital by a family member.

By the time law enforcement officers arrived on the scene, the defendant had fled. A police officer interviewed Young at the hospital and she identified the defendant as her attacker. Young's grandson also informed police officers that the defendant had stabbed Young. The defendant was apprehended the same night.

The defendant was charged by bill of information with aggravated second degree battery, in violation of La. R.S. 14:34.7. Following multiple pretrial motions and hearings, the defendant and the state reached a plea agreement, whereby the defendant pled guilty as charged and the state agreed to a sentencing cap of no more than 12 years' imprisonment at hard labor. Thereafter, the trial court sentenced the defendant to serve 10 years at hard labor. Subsequently, the trial court denied the defendant's motion to reconsider sentence.

The defendant appeals.

DISCUSSION

The defendant contends the trial court erred in finding that his guilty plea was knowingly and voluntarily entered. He argues that the factual basis for the plea was insufficient. According to the defendant, the trial court erred in finding that he had the necessary criminal intent in committing the offense because the state's factual basis for the guilty plea included a statement that defendant was intoxicated at the time of the offense. Further, the defendant maintains that the trial court also noted that intoxication would have impacted his specific intent to commit the offense.

Generally, a valid, unqualified plea of guilty waives a defendant's right to appeal all nonjurisdictional defects in the proceedings prior to the plea. State v. Crosby , 338 So.2d 584 (La. 1976) ; State v. Burks , 47,587 (La. App. 2 Cir. 1/16/13), 108 So.3d 820, writ denied , 2013-0424 (La. 7/31/13), 118 So.3d 1116. A defendant's guilty plea also waives any right to question the merits of the state's case and the factual basis for the plea. State v. Shaw , 49,876 (La. App. 2 Cir. 5/20/15), 166 So.3d 1185, writ denied , 2015-1247 (La. 6/3/16), 192 So.3d 755. Except in the case of an Alford plea, a trial court is not required to ascertain a factual basis for the crime prior to accepting the guilty plea. State v. Mack , 45,552 (La. App. 2 Cir. 8/11/10), 46 So.3d 801 ; State v. Kennedy , 42,850 (La. App. 2 Cir. 1/9/08), 974 So.2d 203. However, doing so provides a method by which the trial court can test whether the plea was voluntarily and intelligently entered. State v. Mack , supra.

In State v. Mack , supra , the defendant pled guilty as charged to two counts of attempted second degree murder. The factual basis presented during the plea colloquy indicated that the defendant was under the influence of Phencyclidine ("PCP") when he shot his mother and his child. On appeal, the defendant argued that the factual basis provided by the state was insufficient to support his convictions. Specifically, the defendant argued that "no court could have concluded that he had the specific intent to kill his victims" because the record reflected that he had used PCP, a hallucinogenic drug, prior to committing the offenses. This Court affirmed the defendant's convictions, stating:

While defendant's claim of voluntary drug use raises the possibility of a defense of lack of specific intent (intoxication)
as to the attempted second degree murder charges, he waived such an affirmative defense by pleading guilty. Further, the assertion by his attorney that defendant was under the influence of an intoxicating substance at the time of the offense does not negate his admission of guilt or create grounds by which to attack the sufficiency of the evidence.
Regardless, the record evinces that defendant's guilty plea was validly entered. Therefore, he is precluded from raising on appeal any issue regarding whether there was sufficient evidence for his conviction.

Id. , at 804 (footnote omitted).

In the instant case, during the Boykin hearing, the state recited a significant factual basis for the offense as follows:

[T]he state contends that Mr. Miller was under the influence of alcohol or drugs or both. He entered the victim's residence and stabbed her multiple times in the back. Stabbed her in the front, her abdomen area.

Prior to entering his guilty plea, the defendant affirmed that he had the opportunity to discuss his "case and any defenses" with his trial counsel and that his counsel had explained the charge and sentencing exposure to him. He also affirmed that he was "completely satisfied" with the services provided by his attorney. Additionally, the defendant's trial counsel affirmed that she had "advised the defendant of the nature of the charge against him and his constitutional rights."

Further, the record contains strong evidence of the defendant's guilt. The defendant admitted to stabbing Young. At his sentencing hearing, the defendant stated that, at the time of the offense, he was "involved with drugs, alcohol, on a daily basis" and expressed remorse for his actions. The defendant's only argument regarding the underlying factual basis for the offense is the "potential" affirmative defense of voluntary intoxication. Although the trial court noted that synthetic marijuana "can make you do crazy things," the court also noted that "it does not alleviate the intent of the crime that was committed."

We find that this record supports the trial court's finding that the plea was knowingly and voluntarily entered. Similar to the defendant in State v. Mack , supra , the defendant waived his right to assert the affirmative defense of intoxication by pleading guilty. The defendant's claim that he was under the influence of drugs and/or alcohol at the time of the offense does not negate his admission of guilt or create grounds by which to attack the sufficiency of the evidence. State v. Mack , supra. Consequently, the defendant is precluded from raising the issue of sufficiency of the evidence for his conviction. This assignment lacks merit.

The defendant also contends the trial court erred in conducting a hearing on his counseled motion to reconsider sentence without his attorney being present. He argues the trial court erred in failing to determine whether he had knowingly and voluntarily waived his right to counsel at the hearing. The defendant maintains that the hearing was a critical stage of the proceedings, and he was entitled to legal representation. According to the defendant, his guilty plea precludes him from appellate review of his sentence; therefore, the motion to reconsider sentence was his only opportunity to have his sentence reviewed. Additionally, the defendant asserts that the judge who heard the motion and the assistant district attorney improperly discussed the merits of the motion while waiting for the defendant's arrival at the hearing.

La. C. Cr. P. art. 881.1(D) provides:

The trial court may deny a motion to reconsider sentence without a hearing, but may not grant a motion to reconsider without a contradictory hearing. If the court denies the motion without a hearing, the party who made or filed the motion may proffer the evidence it would have offered in support of the motion.

Thus, a trial court is not required to conduct a hearing when it denies the defendant's motion to reconsider sentence. State v. Williams , 46,468 (La. App. 2 Cir. 9/21/11), 72 So.3d 966 ; State v. Vance , 45,250 (La. App. 2d Cir. 5/19/10), 36 So.3d 1152.

In State v. Griffin , 41,946 (La. App. 2 Cir. 5/2/07), 956 So.2d 199, the defendant pled guilty to DWI, third offense, and was sentenced in conformity with an agreed-upon sentence. Thereafter, the defendant filed a pro se motion to reconsider sentence. Following a hearing at which the defendant was not represented by counsel, the motion was denied. On appeal, the defendant argued that he was denied his right to counsel at the hearing on his motion. This Court noted that the hearing on the motion to reconsider sentence was not necessary, "given that there was no legitimate support for defendant's motion to reconsider."

In the instant case, defense counsel filed a motion to reconsider sentence on June 10, 2016. The initial hearing was set for August 3, 2016, but was reset several times. Subsequently, a hearing was set for January 4, 2017, but was reset because defense counsel was not present. Thereafter, the defendant made multiple pro se filings, including a writ of habeas corpus , to which he attached the counseled motion to reconsider sentence.

Subsequently, a hearing was held on the motion to reconsider sentence. The transcript of the hearing reveals that prior to the defendant's arrival at the hearing, the trial judge and the assistant district attorney attempted to clarify why Judge McIntyre (the judge who accepted the defendant's guilty plea and imposed the sentence) had scheduled a hearing on the motion to reconsider sentence. The hearing convened after the defendant arrived in the courtroom.

The transcript demonstrates that the defendant informed the trial court that he was representing himself for the proceeding. Further, the defendant expressed remorse for his actions, stating that he did not have "anything personal against" the victim. He also rearticulated his belief that his sentence was excessive, due to his age and health conditions. The defendant also argued that his sentence was excessive because Young, the victim, was not present in court on any of the occasions when the motion to reconsider sentence was set to be heard.

As stated above, it is permissible for a trial court to deny a motion to reconsider sentence without conducting a hearing. Further, the defendant stated that he was representing himself during the proceeding.

Consequently, based on this record, we find no error in the trial court's decision to proceed with the hearing in the absence of counsel. Nor do we find any error in the trial court's denial of the defendant's motion to reconsider sentence. This assignment lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant's conviction and sentence.

AFFIRMED.

      In some portions of the record, Young is referred to as Linda Williams.

      Young suffered severe injuries that required her to be airlifted to the LSU Trauma Center in Shreveport.

      The defendant filed a writ application in this Court regarding the denial of his motion to reconsider sentence. By order dated May 8, 2017, we denied the defendant's writ application. On June 29, 2017, we granted another writ application filed by the defendant and remanded this matter to the trial court for perfection as an appeal.

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

      Judge Ann McIntyre conducted the Boykin and sentencing hearings. The hearing on the motion to reconsider sentence was conducted by Judge Stephen Dean, who replaced Judge McIntyre when she retired from the bench.

      When the defendant pled guilty and was sentenced, he was represented by Amanda Wilkins of the Fifth Judicial District Office of the Public Defender. At some point, Wilkins left the public defender's office. The motion to reconsider sentence was filed by Emily Shields, another attorney in the public defender's office.

      Additionally, earlier in the proceedings (prior to accepting the defendant's guilty plea), the trial court advised the defendant as follows:
      Do you understand that since you've entered into the plea bargain with regard to the sentence that you will not be allowed to appeal or to seek review of the length or severity of the sentence. Nor will I be able to amend, modify, or reduce your sentence after you begin serving your sentence.
      The defendant responded, "Right. Yes."


author: BROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Darrius SMART, Appellant
    No. 52,208-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018.
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III, Counsel for Appellant
    DARRIUS SMART, Pro Se
    GARY V. EVANS, Mansfield, District Attorney, Counsel for Appellee
    KENNETH P. HAINES, Shreveport, HUGO A. HOLLAND, JR., LEA R. HALL, JR., Assistant District Attorneys
    Before BROWN, STONE, and COX, JJ.
   BROWN, C.J.

Defendant, Darrius Smart, was indicted by a grand jury for the second degree murder of Kirby Johnson ("Johnson"). Defendant waived a jury trial and, after a bench trial, was convicted of the lesser responsive verdict of manslaughter. The trial court sentenced Defendant to 40 years at hard labor with credit for time served. On appeal, defense counsel urged insufficiency of the evidence, and Defendant in his pro se brief argued that his sentence is excessive. We affirm the defendant's conviction and sentence.

FACTS

On September 23, 2016, a group of young men were on the playground near the housing project located on Johnson and Jacobs Streets in Mansfield, Louisiana. Defendant, age 19, was one of the young men. In the early evening hours, in the area where the group of young men were gathered, Johnson, age 31, left his female friend Fredreka Green, age 24, to go get a cigarette from the candy lady. When Johnson made it to the mailbox, Ray Scott, age 14, one of these young men, alerted the others to Johnson's presence at the mailbox. These young men had apparently been looking for Johnson to confront him about his shooting a BB gun at them the previous night. When Johnson realized that he was being pursued by the group of young men, he fled from them, heading to his apartment. Defendant raised a gun and shot at Johnson as he was fleeing. Johnson was found unresponsive, lying on a sidewalk near the intersection of Johnson and Jacobs Streets. He was airlifted to University Health in Shreveport, where he died at 3:33 a.m. from a single gunshot wound through the head as confirmed by the testimony of the forensic pathologist, James G. Traylor, Jr., M.D, who performed Johnson's autopsy. Lieutenant Billy Locke of the Mansfield Police Department, also a deputy coroner, testified that there was no blood trail, and that neither a gun nor shell casings were found.

On September 26, 2016, an arrest warrant was issued for Defendant, who turned himself in and has been incarcerated since. As noted above, Defendant was charged by indictment with second degree murder. He waived a jury trial and, after a bench trial on October 16, 2017, he was found guilty of the lesser but responsive crime of manslaughter. On December 7, 2017, Defendant was sentenced to 40 years at hard labor, which is the maximum penalty for manslaughter. No motion for reconsideration of sentence was filed. This appeal ensued.

DISCUSSION

Sufficiency of the Evidence

In this case we must determine whether the evidence presented at trial, when viewed in the light most favorable to the state, reasonably permits a finding of manslaughter. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) ; State v. Howard , 15-1404 (La. 05/03/17), 226 So.3d 419.

Appellate counsel contends that the state failed to prove that Defendant had a gun or that he shot Johnson and that the State's eyewitnesses gave suspicious and conflicting testimonies. Defense counsel points out that Jarius Franklin's testimony was that there was more than one shot, but all of the other witnesses testified that there was only one shot. Franklin, who was 16 years old at the time of the shooting, testified that he heard a shot, then he turned his head and saw Defendant fire the gun. Defendant also notes the discrepancy between Franklin's testimony that Defendant alone fired the gun and Fredreka Green's adamant testimony that Defendant was surrounded by other boys who were urging him to fire the gun. Appellate counsel further asserts that Franklin was coerced into testifying that he saw Defendant shoot Johnson when the investigating officer threatened to treat Franklin as a suspect instead of a witness.

In reviewing the sufficiency of the evidence to support a conviction, the appellate court is controlled by the standard established in Jackson v. Virginia, supra , which is whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proven beyond a reasonable doubt. State v. Hearold , 603 So.2d 731 (La. 1992). The Jackson standard is applicable in cases involving both direct and circumstantial evidence. State v. Owens , 30,903 (La. App. 2d Cir. 09/25/98), 719 So.2d 610, writ denied, 98-2723 (La. 02/05/99), 737 So.2d 747. This standard, now legislatively embodied in La. C.C.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford , 05-0477 (La. 02/22/06), 922 So.2d 517.

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness in whole or in part; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey , 99-0023 (La. 01/26/00), 775 So.2d 1022, cert. denied , 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed. 2d 62 (2000) ; State v. Woodard , 47,286 (La. App. 2d Cir. 10/03/12), 107 So.3d 70, writ denied , 12-2371 (La. 04/26/13), 112 So.3d 837.

At the time of the offense, La. R.S. 14:30.1 provided, in relevant part, that "second degree murder is the killing of a human being ...[w]hen the offender has a specific intent to kill or to inflict great bodily harm." La. R.S. 14:31 provides, in relevant part, that "manslaughter is a homicide committed, without any intent to cause death or great bodily harm ... [w]hen the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person."

Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances and the actions of the defendant. State v. Mickelson , 12-2539 (La. 09/03/14), 149 So.3d 178 ; State v. Walker , 51,217 (La. App. 2d Cir. 05/17/17), 221 So.3d 951. Specific intent can be formed in an instant. State v. Washington , 50,424 (La. App. 2d Cir. 03/16/16), 188 So.3d 350, writ denied , 16-0718 (La. 04/13/17), 218 So.3d 119.

The discharge of a firearm at close range and aimed at a person is indicative of a specific intent to kill or inflict great bodily harm upon that person. State v. Lloyd , 48,914 (La. App. 2d Cir. 01/14/15), 161 So.3d 879, writ denied , 15-0307 (La. 11/30/15), 184 So.3d 33, cert. denied , --- U.S. ----, 137 S. Ct. 227, 196 L.Ed. 2d 175 (2016). Specific intent to kill may also be inferred from the extent and severity of the victim's injuries and the defendant's use of a deadly weapon to produce those injuries, which involved serious risk of death. State v. Washington , supra .

The determination of whether the requisite intent is present is a question for the trier of fact. Id. ; State v. Walker, supra ; State v. Allen , 41,548 (La. App. 2d Cir. 11/15/06), 942 So.2d 1244, writ denied , 07-0530 (La. 12/07/07), 969 So. 2d 619.

In the case sub judice, the evidence presented at trial was more than sufficient to support both the charged offense of second degree murder with specific intent to kill and the responsive verdict of manslaughter. At trial, the State presented the testimony of six lay witnesses, four law enforcement officers, and the forensic pathologist. At least two witnesses, Franklin and Green, placed Defendant at the crime scene and identified him as the shooter.

Green testified that Defendant had a gun, and she heard Kameron Green and other boys daring Defendant to pull the trigger before Johnson could make it to his house. She saw Defendant shoot the gun at Johnson, who was running for his life before making it to the stop sign at the corner of Johnson and Jacobs Streets. Green also testified that it did not appear that Defendant really aimed the gun, and she wondered if Defendant actually fired the gun to get Johnson to stop running.

Green stated that she saw that Johnson initially kept moving forward after being shot, and that he actually made it across the street to the sidewalk in front of his house before he collapsed. All of the boys ran away in separate directions. Green yelled after them and told the boys they should turn themselves in to the police. Green reported to the police that one boy's mother went to the scene to look for a shell casing, and the crime scene was expanded. Green also testified that the victim had been beaten with a metal pipe by a group of boys including Defendant, about three weeks before his death, and the night before his death, he had to threaten a group of young men with a BB gun to get them to stay away from his home.

Jarius Franklin, age 16, identified Defendant in court as "Shrimp Bait." Franklin testified that he saw Defendant earlier the afternoon of the shooting, talking with Claiborne and Scott on the playground. Franklin testified that the shooting occurred just as the sun was going down, as Defendant was standing in a grassy area at the northwest corner of the intersection of Jacob and Johnson Streets. Franklin testified that he saw Defendant shoot Johnson. Under direct examination, Franklin said, "I mean I walked to the middle street. By the time I got there. I just heard, I just heard a shot. I turned around--seen him shoot and turned around and went back to the house." Under cross-examination, when asked, "You actually saw him shoot?" Franklin said, "Yes, sir." On redirect, the trial court asked, "Okay, did you see the bullet strike him?" Franklin answered, "I mean when I seen the shot, turned around and went back to the house."

The testimony of Dr. Traylor, Green, and Franklin confirm that there was some distance between Defendant and Johnson before the latter was shot and collapsed. The testimony of all witnesses and law enforcement officers involved in the investigation confirms that Johnson was shot and found at or near Johnson and Jacobs Streets. There is no internal contradiction or irreconcilable conflict with the witnesses and the physical evidence. Defendant did not present any evidence.

Absent internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for the requisite factual conclusion. State v. Wiltcher , 41,981 (La. App. 2d Cir. 05/09/07), 956 So.2d 769 ; State v. Burd , 40,480 (La. App. 2d Cir. 01/27/06), 921 So.2d 219, writ denied , 06-1083 (La. 11/09/06), 941 So.2d 35.

The evidence was sufficient to prove both that Defendant was guilty of second degree murder with specific intent to kill, in violation of La. R.S. 14:30.1, and manslaughter, committed during the perpetration of an aggravated battery, in violation of La. R.S. 14:31(2)(a). Defendant demonstrated a specific intent to kill when he pointed the gun at Johnson and pulled the trigger. Two eyewitnesses, Green and Franklin, testified that they saw Defendant pull a handgun, point it at Johnson as he was running away, and pull the trigger. Johnson was shot in the back of the head and died. The autopsy clearly established that he died from the gunshot wound.

Defendant's intent to kill was further corroborated by testimony from Johnson's fiancée Comechalla and her mother Jacqueline that Defendant came to their home and pulled a gun on them, Johnson, and Johnson's son, and threatened to kill Johnson two days before his death. Defendant's intent to kill or inflict great bodily harm was corroborated by evidence of prior acts. Specifically on August 18, 2016, when Defendant participated in a group assault and battery on Johnson, wherein Defendant and a group of young men chased Johnson down, just as they did the day Defendant shot Johnson, and then battered him in the face, head, shoulders, and arms with a metal pipe.

A review of the entire record clearly shows that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have reasonably concluded that Defendant was the shooter and shot Johnson with intent to kill. The elements of second degree murder were proved beyond a reasonable doubt and a lesser verdict of manslaughter was responsive to the crime charged. State v. Cooley , 260 La. 768, 257 So.2d 400 (1972).

Excessive Sentence

Defendant's pro se assignment of error is that the 40-year hard labor sentence is excessive and disproportionate to the offense. According to Defendant, the trial court failed to adequately consider the circumstances of the case and Defendant's background. Defendant contends that the death was accidental because he fired a shot in the air on a dare to scare Johnson and that the bullet "miraculously" hit the victim in the head. He states that "[b]ibically, it is uncanny that the randomly-fired bullet was designed to take the life of Kirby Johnson." Defendant adds that "[t]his was God's will that Kirby Johnson would die this day. Mr. Smart was the vassal used to bring this act to a close. Mr. Smart had no intent to harm Kirby Johnson."

Defendant asserts that the 40-year sentence is excessive since he will have to serve at least 85 percent of the sentence before he will be eligible to be considered for parole. He urges that the 40-year sentence be reduced in order to give him the "chance to give something back to our society," because "[d]estroying two lives does not equal justice."

Whether a sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Bonanno , 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Lobato , 603 So.2d 739 (La. 1992) ; State v. Fatherlee , 46,686 (La. App. 2d Cir. 11/02/11), 77 So.3d 1047 ; State v. Livingston, 39,390 (La. App. 2d Cir. 04/06/05), 899 So.2d 733 ; State v. White , 37,815 (La. App. 2d Cir. 12/17/03), 862 So.2d 1123.

Maximum sentences are generally reserved for the worst offenses and offenders. State v. Taylor , 41,898 (La. App. 2d Cir. 04/04/07), 954 So.2d 804. However, in cases where the offense does not adequately describe the conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. State v. Black, 28,100 (La. App. 2d Cir. 02/28/96), 669 So.2d 667, writ denied , 96-0836 (La. 09/20/96), 679 So.2d 430. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained and the offense involves violence upon a victim. Id.

Prior to imposing sentence, the trial court considered Defendant's personal and educational history and his lack of a criminal history as mitigating circumstances. The trial court also carefully articulated the aggravating circumstances.

Johnson's three young children, fiancée, mother, and siblings all suffered emotionally and economically due to his death. Defendant's behavior could have led to a conviction for second degree murder with a life sentence with no benefits, so the imposed sentence of 40 years with benefits was a significant reduction.

Considering the totality of the circumstances, this sentence is not constitutionally excessive. A 40-year sentence for manslaughter, when the evidence presented arguably supported a finding of second degree murder, is neither grossly disproportionate to the severity of the offense nor is it shocking to one's sense of justice.

CONCLUSION

For the foregoing reasons, Defendant's conviction and sentence are affirmed.

AFFIRMED.

      Jarius Franklin is sometimes mistakenly referred to as Jeremy Franklin by Green and as Jarvis Franklin by the prosecution in the record.

      The use of prior acts was not assigned as error. However, under Code of Evidence 404(B), this evidence was admissible.


author: PITMAN, J.

text:
    STATE of Louisiana, Appellee v. Kenneth W. HARPER, Appellant
    No. 52,154-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, SUZANNE M. WILLIAMS, J. AARON CRAWFORD, Assistant District Attorneys, Counsel for Appellee
    Before BROWN, PITMAN, and McCALLUM, JJ.
   PITMAN, J.

A jury convicted Defendant Kenneth W. Harper of attempted second degree murder, and the trial court sentenced him to serve 15 years at hard labor without the benefit of probation, parole or suspension of sentence. Defendant appealed, but his appellate counsel filed a motion to withdraw and a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967). For the following reasons, we grant the motion to withdraw and affirm Defendant's conviction and sentence.

FACTS

On May 9, 2016, the state filed a bill of information charging Defendant with attempted second degree murder, in violation of La. R.S. 14:27 and La. R.S. 14:30.1. The state alleged that on or about April 10, 2016, Defendant attempted to commit the second degree murder of Alicia Woods. Defendant pled not guilty.

A jury trial began on August 22, 2017. Ms. Woods testified that several weeks before the April 2016 incident, she and Defendant had an argument about the amount of gas money she would pay him in exchange for a ride. The following day, Ms. Woods confronted Defendant about how he grabbed her around the neck during the previous day's argument. This conversation escalated into a physical altercation with Ms. Woods using a wooden table leg and Defendant using a tree branch. Ms. Woods struck Defendant in the mouth, and he lost several teeth. Approximately two weeks later, on April 10, 2016, Ms. Woods and her then-girlfriend Teala Smith were sitting in Ms. Smith's car in a parking lot of a park when Defendant arrived in his car and blocked their car. Defendant exited his car, so Ms. Woods exited her car armed with the table leg she had used in their previous altercation. Defendant then removed a shotgun from his car and shot Ms. Woods, striking her in the arm, almost severing it, and in the side of her abdomen.

Ms. Smith testified about the events of April 10, 2016, and corroborated Ms. Woods's testimony. Det. Johnny Elie of the Shreveport Police Department testified about being dispatched to the scene of the crime, Ms. Smith's identification of Defendant in a photographic lineup, his interview of Ms. Woods, Ms. Woods's identification of Defendant in a photographic lineup and the arrest of Defendant. He noted that the shotgun used in this matter has not been recovered. Corp. John Madjerick of the Shreveport Police Department testified about photographs of the crime scene. Dr. Yury Rapoport testified that he was Ms. Woods's discharging physician. He stated that she was hospitalized from April 10 to April 21, 2016, due to gunshot wounds to her right flank and right shoulder and underwent several surgeries during this time.

Defendant elected to testify. He stated that on April 3, 2016, Ms. Woods hit him in the mouth with a table leg and broke his partial dentures. He denied shooting Ms. Woods on April 10, 2016. He stated that he discharged a shotgun once into a dirt pile to scare her, but was not trying to kill her. He noted that Ms. Woods did not say anything or make a gesture that she was injured, and Defendant then left the scene. He opined that her injuries could have been caused by overspray from the shotgun.

Det. Elie testified as a rebuttal witness. A recording of his interview of Defendant was played for the jury. In the interview, Defendant indicated that he had a "gauge" and "shot at" Ms. Woods.

On August 23, 2017, the jury found Defendant guilty as charged of attempted second degree murder.

On September 18, 2017, Defendant filed a "Motion for Post Verdict Judgment of Modification of Verdict" and argued that the evidence presented at trial only supports a conviction for the offense of aggravated battery. The trial court denied the motion.

A sentencing hearing was held on October 24, 2017. The trial court reviewed the La. C. Cr. P. art. 894.1 factors and noted that Defendant had virtually no prior criminal history, that he appeared remorseful, that he used a firearm in the commission of the offense and that the victim suffered a very serious injury. It reviewed Defendant's statement on sentencing and attached letters and determined that a lesser sentence would deprecate the seriousness of the offense. It sentenced Defendant to 15 years at hard labor without the benefit of probation, parole or suspension of sentence. It ordered Defendant not to make contact with Ms. Woods or to possess firearms.

On November 2, 2017, Defendant filed a motion for appeal. The trial court appointed the Louisiana Appellate Project to represent him. This appeal followed. On March 6, 2018, Defendant's appellate counsel filed a motion to withdraw. Counsel also filed an Anders brief in which he advised that he thoroughly reviewed the record and could find no nonfrivolous issues to raise on appeal. See Anders v. California , supra ; State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 ; State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176 ; State v. Benjamin , 573 So.2d 528 (La. App. 4 Cir. 1990).

On April 5, 2017, this court issued an order holding the motion to withdraw in abeyance, rescinding the pro se briefing deadline and notifying Defendant that he could file a request to view the appellate record within 10 days of the date of the order and file a brief in this appeal within 30 days of the date of the order. This court also advised Defendant that if he did not timely file a brief, the appellate record would be reviewed only for error patent. Defendant failed to file a brief in this appeal within the allocated time period.

DISCUSSION

Counsel's brief conforms with the procedures set forth in Anders v. California , supra ; State v. Jyles , supra ; State v. Mouton , supra ; and State v. Benjamin , supra . It outlines the procedural history of the case and the evidence presented at trial. It contains a "reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." State v. Mouton , supra . Counsel states that he will mail copies of the motion to withdraw and his brief to Defendant.

A review of the record discloses no non-frivolous issues and no rulings which arguably support an appeal. The record reflects that there was sufficient evidence to convict Defendant of attempted second degree murder. Ms. Woods and Ms. Smith identified him in open court as the individual who shot Ms. Woods. The jury's unanimous verdict of guilty as charged demonstrates that they found Ms. Woods and Ms. Smith to be more credible witnesses than Defendant. The appellate court does not assess credibility or reweigh the evidence. State v. Smith , 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam , 36,118 (La. App. 2 Cir. 8/30/02), 827 So.2d 508.

Although no presentence investigation report was ordered, the trial court considered the La. C. Cr. P. art. 894.1 factors and imposed a sentence that is lawful and not excessive. Pursuant to La. R.S. 14:27(D)(1)(a), Defendant faced a sentencing range of 10 to 50 years at hard labor without the benefit of probation, parole or suspension of sentence. Therefore, his lower-range sentence of 15 years is not grossly out of proportion to the severity of the crime and does not shock the sense of justice. State v. Bonanno , 384 So.2d 355 (La. 1980).

We have examined the record for error patent and found none. La. C. Cr. P. art. 920.

CONCLUSION

Accordingly, we grant appellate counsel's motion to withdraw and affirm the conviction and sentence of Defendant Kenneth W. Harper.

MOTION TO WITHDRAW GRANTED; CONVICTION AND SENTENCE AFFIRMED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Benjamin Michael FLOYD, Appellant
    No. 52,183-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, TRENEISHA J. HILL, TOMMY J. JOHNSON, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, MOORE, and STONE, JJ.
   MOORE, J.

Benjamin Michael Floyd was convicted of indecent behavior with juveniles, adjudicated a third-felony habitual offender, and sentenced to the mandatory life at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals that sentence as excessive. We affirm.

PROCEDURAL BACKGROUND

After driving a float in a 2013 Mardi Gras parade in Shreveport, Floyd got in the back of his truck with his 12-year old niece, told her she was his "new favorite toy," and began groping her breasts, legs, and buttocks. Another float driver, and his 16-year-old daughter, witnessed this, and the niece reported Floyd's conduct to her mother. Floyd was charged with indecent behavior with juveniles, La. R.S. 14:81, and a jury unanimously found him guilty as charged. This court affirmed his conviction and sentence of 20 years at hard labor without benefits. State v. Floyd , 51,869 (La. App. 2 Cir. 6/27/18), 250 So. 3d 1165.

Meanwhile, the state filed a bill of information charging Floyd as a third-felony habitual offender. The first felony was simple burglary of an inhabited dwelling, to which Floyd pled guilty in March 1997 and received a sentence of two years at hard labor. The second felony was armed robbery, to which he pled guilty in September 1998 and received a sentence of 10 years at hard labor. At a hearing in October 2016, an expert in latent fingerprint analysis testified that the fingerprints on the bills of information in the two prior offenses and in the instant offense, indecent behavior with juveniles, were identical to those of Floyd taken in open court.

The district court adjudicated Floyd a third-felony habitual offender. Reading the pertinent part of La. R.S. 15:529.1 A(3)(b) into the record, the court found that one of Floyd's priors (armed robbery) was a crime of violence, under R.S. 14:2, and the instant offense (indecent behavior with juveniles) was a sex offense, under La. R.S. 15:540, and thus a life sentence without benefits was mandated. The court also recited the sentencing factors of La. C. Cr. P. art. 894.1, noting Floyd's additional convictions for forgery and illegal possession of stolen things and his lack of remorse for his actions with his niece. The court therefore vacated the previously imposed sentence and resentenced Floyd to life at hard labor, without benefit of probation, parole, or suspension of sentence. The court commented that the mandatory sentence was severe, but she had to afford great deference to the legislature's sentencing scheme. The court also found that Floyd had not shown that he was the exceptional, rare defendant for whom downward departure from the mandatory minimum would be justified.

Floyd filed no motion to reconsider sentence. He later sought, and this court granted, an out-of-time appeal.

THE PARTIES' POSITIONS

By one assignment of error, Floyd urges the court erred in imposing an unconstitutionally harsh and excessive sentence. He shows that even a sentence within statutory limits can be reviewed for excessiveness, State v. Sepulvado , 367 So. 2d 762 (La. 1979), and is unconstitutional if it imposes punishment that is grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering, State v. Bonanno , 384 So.2d 355 (La. 1980).

Specifically, he argues that under the version of the habitual offender law that became effective November 1, 2017, he could not have received life because his prior conviction for simple burglary would not qualify under R.S. 15:529.1 A(3)(b). Apparently conceding that his case predated the 2017 amendment, he argues that the amendment nevertheless provides a useful metric for gauging the legislature's view of the mandatory life sentence. In support, he cites Justice Crichton's concurrence in State v. Guidry , 2016-1412 (La. 3/15/17), 221 So.3d 815, which opined that the "current jurisprudence subverts the will of the legislature," the "imposition of life sentences on non-violent offenders at a certain point lacks any meaningful social value and may constitute aberrant cruelty," and such sentences are imposed with "abusive frequency." He also cites Chief Justice Johnson's dissent in the same case, which observed that "78% of habitual offender convictions are for non-violent offenses, though some of those offenders may have had prior violent offenses," the habitual offender law "is used to extract a disproportionately harsh punishment for a less serious offense," and urged that "we must abandon all practices which result in condemnation to a life behind bars for anyone other than the most dangerous among us." He submits that if his sentence is affirmed, he will die in jail "because he was convicted and sentenced before the legislature acknowledged, reacted to, and sought to prevent excessive, abusive, and unconstitutional sentences" such as those recognized by Justice Crichton in Guidry . In light of this legal environment, and the fact that the instant offense was nonviolent, he urges that his sentence be reversed and his case remanded for resentencing.

The state responds that the court correctly applied R.S. 15:529.1 A(3)(b) and imposed a legal sentence. It agrees that in "truly rare" cases, the court may deviate downward from the mandatory minimum sentence, but argues that such action cannot be based solely on the nonviolent nature of the current or prior offenses, and, moreover, Floyd offered no evidence whatsoever to support a downward deviation.

The state also argues that the subsequent change in the law is immaterial, as the version of the habitual offender law in effect at the time of the offense governs. State v. Parker , 2003-0924 (La. 4/14/04), 871 So.2d 317. The state urges affirmance.

APPLICABLE LAW

At the time of Floyd's offense, R.S. 15:529.1 A(3)(b) provided the penalty for a third-felony multiple offender: if the third felony is such that upon first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then:

(b) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

The 2017 amendment removed from this subsection violations of the Controlled Dangerous Substances Law and other crimes punishable by imprisonment for 12 years or more. 2017 La. Acts No. 257, § 1. The same amendment further provided that the change "shall have prospective application only to offenders whose convictions became final on or after November 1, 2017." Id. , § 2. A 2018 amendment further clarified the legislature's intent by adding paragraph 529.1 K(1), which provides that, except for a condition not applicable to this case, "notwithstanding any provision of law to the contrary, the court shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed." 2018 La. Acts No. 542, § 1. Prior jurisprudence held that the habitual offender law in effect at the time the defendant committed the underlying offense is the version that applies; amendments to the habitual offender law apply only to offenses committed after the effective date of the amendments. State v. Parker , 2003-0924 (La. 4/14/04), 871 So.2d 317 ; State v. Casaday , 51,947 (La. App. 2 Cir. 4/11/18), 247 So. 3d 1057 ; State v. Barker , 2017-0469 (La. App. 4 Cir. 5/30/18), --- So. 3d ----.

The minimum sentences mandated by the habitual offender law are presumed to be constitutional. State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672. The sentencing judge must therefore start with the presumption that a mandatory minimum sentence under the habitual offender law is constitutional. State v. Thomas , 50,898 (La. App. 2 Cir. 11/16/16/), 209 So.3d 234. The legislature's determination of an appropriate minimum sentence should be afforded great deference by the judiciary. State v. Johnson , supra ; State v. Capers , 43,743 (La. App. 2 Cir. 12/3/08), 998 So.2d 885, writ denied , 2009-0148 (La. 10/2/09), 18 So.3d 102.

A sentence violates La. Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166 ; State v. Small , 50,388 (La. App. 2 Cir. 2/24/16), 189 So.3d 1129, writ denied , 2016-0533 (La. 3/13/17), 212 So.3d 1158. Courts have the power to declare a sentence excessive under this standard, but this power should be exercised only if the court finds clear and convincing evidence in the particular case before it that would rebut the presumption of constitutionality. State v. Johnson , supra ; State v. Lindsey , 99-3302 (La. 10/17/00), 770 So.2d 339, cert. denied , 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001). Downward departure from a mandatory minimum sentence may occur in rare circumstances if the defendant shows that he is exceptional, namely, that he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case. State v. Thomas , supra . A defendant cannot rely solely on the nonviolent nature of his crimes to rebut the presumption of constitutionality. State v. Johnson , supra ; State v. Fisher , 50,301 (La. App. 2 Cir. 12/30/15), 185 So.3d 842, writ denied , 2016-0228 (La. 2/3/17), 215 So.3d 687.

DISCUSSION

The premise of Floyd's argument is that he should receive some consideration in light of the 2017 amendment to the habitual offender law. Even though the amendment is expressly prospective only, he contends that it nevertheless shows the legislature's recognition that the prior scheme resulted in excessive and abusive sentences for repeat offenders. This court is sensitive to the reality that Floyd will not benefit from the leniency of the 2017 amendment because his offense occurred before it took effect. However, the legislature specified that the amendment would have "prospective application only," and a subsequent amendment further clarified that courts "shall apply the provisions of this Section that were in effect on the date that the defendant's instant offense was committed." In other words, the legislature clearly stated its intent to diminish the penalties for certain habitual offenders, but equally clearly stated its intent not to reopen or relitigate cases that arose before the effective date. The jurisprudence also holds that the version of the habitual offender law in effect at the time of the crime is the version that applies; amended provisions apply only to offenses committed after their effective dates. State v. Parker , supra ; State v. Casaday , supra ; State v. Barker , supra . We therefore cannot adopt Floyd's premise of using the 2017 amendment as a convenient metric to find his sentence excessive.

Floyd also argues that the underlying offense is not a violent offense, and this fact should loom large in gauging the excessiveness of his mandatory life sentence. We agree that indecent behavior with juveniles is not classified as a crime of violence in La. R.S. 14:2 B. However, a defendant cannot rely solely on the nonviolent nature of his crimes to rebut the presumption of constitutionality. State v. Johnson , supra ; State v. Fisher , supra . Instead, he is required to show that he is "exceptional," in that he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case. State v. Thomas , supra . We are constrained to observe - as did the district court - that Floyd presented no evidence in mitigation of the mandatory sentence, giving the court nothing on which to base a finding that he is exceptional. Despite its reservations about imposing the mandatory life sentence, the district court conscientiously reviewed Floyd's criminal history and found that it did not support a downward deviation. On close review, we detect no abuse of discretion.

We also observe that in State v. Guidry , supra , the Supreme Court held that a defendant is not entitled to have the jury informed that, if convicted of the charged offense, he faced the possibility of the mandatory life sentence as a habitual offender. Chief Justice Johnson and Justice Crichton wrote separate opinions voicing their views that the habitual offender law "serves no worthwhile goal" when used to "extract a disproportionately harsh punishment for a less serious offense" and that imposing life sentences on nonviolent offenders "at a certain point lacks any meaningful social value and may constitute aberrant cruelty." While these expressions of clemency did not sway the whole court, they may well have helped influence the legislature to moderate some aspects of the habitual offender law in 2017. This court, of course, will follow the legislative enactment.

Finally, we consider whether the sentence violates La. Const. art. I, § 20, as disproportionate to the seriousness of the offense or a purposeless infliction of pain and suffering. Evidence introduced at trial showed that in 2008, Floyd had performed acts that would classify as sexual battery, and in 2011, performed other indiscreet acts, both with the same niece who was the victim, in 2013, in the underlying felony of indecent behavior with juveniles. In addition to the predicate offenses of simple burglary of an inhabited dwelling, in 1997, and armed robbery, in 1998, the district court cited Floyd's convictions for forgery and illegal possession of stolen things, and his lack of remorse for his treatment of his niece. In the totality of these circumstances, we cannot say that the mandatory life sentence, though harsh, is disproportionate, a purposeless infliction of pain and suffering, or shocking to the sense of justice. The assignment of error lacks merit.

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920 (2).

CONCLUSION

For the reasons expressed, the conviction, multiple offender adjudication, and sentence are affirmed.

AFFIRMED.

      In response to a defense objection that the first felony was "timed out," the district court called a recess, did research, and determined, correctly, that both priors were available for enhancement under R.S. 15:529.1 C, as it then provided: less than 10 years elapsed between the 1997 and 1998 convictions; the 1998 conviction resulted in a 10-year sentence; time spent in a penal institution does not count against the 10-year period of 15:529.1 C; thus, the instant offense, in 2013, would have been within 10 years of his release. State v. Kisack , 2016-0797 (La. 10/18/17), 236 So.3d 1201, cert. denied , --- U.S. ----, 138 S. Ct. 1175, 200 L.Ed.2d 322 (2018). Floyd has not challenged this ruling on appeal.

      This court is aware of an unpublished opinion, State v. Purvis , 2017-1013 (La. App. 3 Cir. 4/18/18), 244 So.3d 496, in which a divided Third Circuit applied the amended version of R.S. 15:529.1 to an offense that occurred in September 2015, over two years before the amendment took effect. This court would decline to follow Purvis , in light of the jurisprudence, but we consider it effectively abrogated by the 2018 enactment of R.S. 15:529.1 K(1).