text:
    METALS USA PLATES & SHAPES SOUTHEAST, INC. v. Kimberly ROBINSON, Secretary, Louisiana Department of Revenue
    NO. 17-CA-421
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, METALS USA PLATES & SHAPES SOUTHEAST, INC., Nicole Gould Frey, David R. Cassidy, Baton Rouge
    COUNSEL FOR DEFENDANT/APPELLEE, LOUISIANA DEPARTMENT OF REVENUE, Aaron Long, Brandea P. Averett, Antonio C. Ferachi, Adrienne Quillen
    Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and Marion F. Edwards, Pro Tempore
   WINDHORST, J.

This matter involves a dispute as to whether the tax exemption in La. R.S. 47:301(10)(x) applies to appellant, Metals USA Plates & Shapes Southeast, Inc.'s ("Metals USA") tax refund request for taxes paid on fuel during the period January 2011 through February 2014. The Louisiana Department of Revenue ("LDR") denied Metals USA's refund request. We affirm.

Facts and Procedural History

Appellant, Metals USA, operates a welding and metals fabrication business. Metals USA filed a tax refund request for certain taxes paid in error during the period January 2011 through February 2014, including one refund request for taxes paid for welding gases exempt under La. R.S. 47:301(10)(x). The relevant published version of La. R.S. 47:301(10)(x) and the version Metals USA relied upon in its refund request reads as follows:

For the purposes of the sale and use tax imposed by the state... the terms 'retail sale' or 'sale at retail' shall not include the following:
(i) The sale or purchase by a person of any fuel or gas, including but not limited to butane and propane.
(ii) Beginning July 1, 2008, the sale or purchase by any person of butane and propane.

LDR denied Metals USA's refund request under La. R.S. 47:301(10)(x), asserting the above-quoted version does not reflect the most recent expression of legislative will relative thereto and thus does not apply as written.

Prior to 2008, La. R.S. 47: 301(10)(x) stated "For purposes of sales and use tax imposed by the state..., the terms 'retail sale' or 'sale at retail' shall not include the sale or purchase by a consumer of any fuel or gas, including but not limited to butane and propane, for residential use by the consumer." During the 2008 Second Extraordinary Session of the Louisiana Legislature, the Legislature passed two acts (HB 1, which became Act No. 1, and SB 7, which became Act No. 9) which revised La. R.S. 47:301(10)(x), but resulted in two different versions of this exemption provision. Act No. 1's revision created a broad tax exemption, while Act No. 9 created a more narrow tax exemption. Pursuant to House Bill 1 (hereafter "HB 1") / Act No. 1, and Senate Bill 7 (hereafter "SB 7") / Act No. 9, La. R.S. 47:301(10)(x) stated, respectively, as follows,

For purposes of sales and use tax imposed by the state..., the terms 'retail sale' or 'sale at retail' shall not include the sale or purchase by a person of any fuel or gas, including but not limited to butane and propane. [Act No. 1]
For the purposes of the sale and use tax imposed by the state... the terms 'retail sale' or 'sale at retail' shall not include the following:
(i) The sale or purchase by a consumer of any fuel or gas, including but not limited to butane and propane for residential use by the consumer.
(ii) Beginning July 1, 2008, the sale or purchase by any person of butane and propane. [Act No. 9.]

The legislative history for the 2008 Extraordinary Session reflects that (1) both Acts Nos. 1 and 9 were pre-filed on March 7, 2008; (2) the House of Representatives voted and passed Act No. 1 on March 12, 2008 and Act No. 9 on March 14, 2008; (3) the Senate voted and passed Act No. 1 on the morning of March 14, 2008 and Act No. 9 on the same afternoon; and (4) the governor signed Acts Nos. 1 and 9 on March 24, 2008. Because the Legislature passed two amendments to La. R.S. 47:301(10)(x), the Louisiana Law Institute attempted to merge the two amendments into La. R.S. 47:301(10)(x) and published this provision with language reflecting a broad tax exemption (see quoted published version on Page 1). The Institute used the term "person" from Act No. 1 instead of "consumer" from Act No. 9. The Institute also entirely deleted the limiting phrase, "for residential use by the consumer," from Act No. 9.

Pursuant to La. R.S. 24:253, the Law Institute publishes all new legislation and may renumber, rearrange sections or parts of sections, insert or change the wording of headnotes and change reference numbers. The Law Institute, however, cannot alter the sense, meaning or effect of any legislative act. Id. When two or more legislative acts conflict, the Law Institute is required to notify the Senate and the House of Representatives. See La. R.S. 24:252.

LDR, in denying Metals USA's request, asserted that the Law Institute had erroneously altered the meaning of La. R.S. 47:301(10)(x) and, that because Act No. 9 was passed after Act No. 1, Act No. 9 was the most recent expression of legislative will and governed. Under the version of this statute as amended by Act No. 9, the tax exemption is limited to purchases for residential use by the consumer. As Metals USA's welding gas purchases were for commercial use, LDR advised Metals USA the exemption did not apply to the butane and/or propane fuel purchases for which it sought a refund.

Metals USA sought review of LDR's denial of the refund requests by the Louisiana Board of Tax Appeals ("Tax Board"). During these proceedings, Metals USA and LDR entered into a Joint Stipulation, stipulating to the amounts of tax refunds granted to Metals USA and the amounts remaining in dispute. According to the Joint Stipulation, the amount remaining in controversy was reduced to $3,423.33 in sales tax paid on fuel. The only issue the Tax Board addressed was whether Metals USA's welding gas purchases were exempt from sales tax under La. R.S. 47:301(10)(x). The Tax Board found that these purchases were not exempt from sales tax and denied Metals USA's refund request. The Tax Board reached this conclusion after first finding that Act No. 1 and Act No. 9 conflict, stating in its Written Reasons for Judgment that the "dichotomy of tax treatment resulting from the separate application of Acts 1 and 9 to the facts of this case ipso facto creates a conflict between these two acts." The Tax Board then concluded that, based on the evidence, Act No. 9 controls because it was the most recent expression of legislative will on La. R.S. 47:301(10)(x) because it was passed after Act No. 1 during the 2008 Second Extraordinary Session of the Louisiana Legislature. It further concluded that because Act No. 9 governs application of the exemption and applies only to consumption for residential use, Metals USA's refund request must be denied.

Assignments of Error

Appellant asserts the Tax Board erred in "judicially repealing" Act No. 1; in finding that Act No. 1 and Act No. 9 conflict; in failing to give effect to all laws passed by the legislature; and in finding that Act No. 9 tacitly repeals Act No. 1 without attempting to harmonize Act No. 1 with Act No. 9.

Law and Analysis

Because this appeal involves the determination of a legal issue, this court must apply the de novo standard of review. TCC Contrs., Inc. v. Hosp. Serv. Dist. No. 3 of Lafourche, 10-685 (La.App. 1 Cir. 12/8/10), 52 So.3d 1103, 1108, citing Kevin Associates, L.L.C. v. Crawford, 3-211 (La. 1/30/04), 865 So.2d 34, 43. On the issue of the interpretation of multiple legislative acts or amendments on the same provision, the Louisiana Supreme Court has set forth the following guidance:

The legislative branch is presumed to intend to achieve a consistent body of law. 1A N. Singer, Sutherland Statutory Construction § 23.09 (Sands 4th ed. 1986). When a legislature enacts a statute without mention of existing statutes on the same subject matter, the later act may, by necessary implication, effect the repeal of the preexisting law. However, there is a presumption against implied repeal, based on the theory that the legislature envisions the whole body of law when it enacts new legislation. Id. at § 23.10. Thus, a court should give harmonious effect to all acts on a subject when reasonably possible. However, when two acts are clearly irreconcilable, are clearly repugnant as to essential matters relating to the acts, and are so inconsistent that the two cannot have concurrent operation, then the presumption against implied repeal falls, and the later statute governs. Id.
Accordingly, when inconsistent amendments to the same statute have been adopted at the same legislative session, the court should attempt to construe the statute so as to give effect to both amendments consistent with legislative intent. Only when it is impossible to give effect to both amendments should the court allow the time of passage of the acts to be the controlling factor. Allowing the later act to control effectively recognizes a repeal by implication of the earlier act, and such recognition of a repeal by implication should occur only when the acts passed in the same session are so repugnant that they cannot stand together. State v. Piazza, 596 So.2d 817, 819 (La. 1992).

Applying the above principles here, we first address whether Act No. 1 and Act No. 9 conflict, or whether the amendments to La. R.S. 47:301(10)(x) in these Acts can be reconciled. If they conflict and cannot be reconciled, the law clearly states that the latest expression of legislative will controls. Id.

LDR effectively argues that the Law Institute reconciled the two Acts by expanding an exemption applicable only to consumption for residential use and expanding it to include commercial use. It asserts that "[i]t cannot be legitimately argued that that the two acts can be reconciled or harmonized when it is necessary to omit an entire portion of Act No. 9 to merge the two." The Tax Board concluded that there was a conflict between the two Acts because the application of the exemption under the two versions separately has two different results.

We agree with the Tax Board's conclusion. Given the apparent difference resulting from the application of La. R. S. 47:301(10)(x) with the inclusion of each legislative act separately, there is a conflict in this case. It is undisputed that with Act No. 1's provisions, the exemption would apply to Metals USA, and that with Act No. 9's limiting provisions, the exemption would not apply. Because one version expands application of the exemption to consumption for commercial use, while the other limits its application to consumption for residential use, we agree that the two acts conflict. As such, we find the Tax Board properly concluded that the two provisions conflict. We also find that the two Acts cannot be reconciled as the exemption must either apply to commercial use or not. Act No. 1 and Act No. 9 cannot be merged and still incorporate the intent of Act No. 9 in the exemption.

The next issue, the determination of which amendment applies, depends on which Act was the most recent expression of legislative will during the 2008 session. State v. Piazza, supra. The record shows that the Legislature passed Act No. 1 on the morning of March 14, 2008, and later passed Act No. 9 on the afternoon of March 14, 2008. This is determined by the both House and Senate Journals of March 14, 2008, which provide a history of every action taken by each chamber of the legislature on a given day of a legislative session. The relevant journal pages are exhibits admitted into evidence and are in the record.

On the morning of March 14, 2008, the Senate passed HB 1 without amendments (Senate Journal, Page 5), and returned it to the House of Representatives where it was accepted without amendments to the bill (House Journal, page 15). Having been passed in identical form by both chambers, it was enrolled and signed by the Speaker of the House and the President of the Senate, and sent to the Governor. Later signed by the Governor, it became Act No. 1 of the 2008 Second Extraordinary Session.

On the same morning, the Senate considered SB 7, which had been previously passed by the House with amendments to the bill, and returned to the Senate. Upon consideration of the amendments proposed by the House, the Senate voted to reject the House amendments (Senate Journal, Page 7, and Record p. 276), and shortly thereafter, the Senate recessed for lunch. The Senate reconvened at 1:45 P.M. (Senate Journal, Page 7, and Record p. 276), and a conference committee comprising three members of each chamber was appointed, which proposed a final version of SB 7. Later that afternoon, the House adopted the Conference Committee Report, i.e. , the proposed final version of SB 7 (vote and content appearing at House Journal, page 13). Later still, the Senate adopted the Conference Committee Report (content and vote appearing at Senate Journal, page 14). It was then signed by the Speaker of the House, the President of the Senate, and later by the Governor, becoming Act No. 9 of the 2008 Second Extraordinary Session.

Because the Senate Journal conclusively shows that final action was taken by the Senate on HB 1 on the morning of March 14, 2008 before the Senate's lunch recess, and further, that all final action on SB 7 was later taken by both the House and Senate after the Senate reconvened at 1:45 P.M., it is certain that SB 7 / Act 9 was the later and more recent expression of legislativ e will, and therefore prevails. Consequently, the broader exemption provided in HB 1 / Act 1 was limited by the legislature later in the same day by the passage of SB 7 / Act 9.

Applying La. R. S. 47:301(10)(x) as written with Act No. 9's amendment, the exemption only applies to relevant fuel purchases for residential use only. Appellant's pertinent fuel purchases were not for residential use and do not fall within the exemption. We therefore affirm the judgment of the Tax Board denying Metals USA's refund claims for welding gas purchases.

Conclusion

For the reasons stated above, we affirm the Tax Board's May 10, 2017 decision.

AFFIRMED

EDWARDS, PRO TEMPORE, J., CONCURS WITHOUT REASONS

      All references to the Journals are for the date of March 14, 2008. Because the relevant Journal pages appear in several exhibits and multiple places in the record, we find it most clear to refer to them by their Journal page numbers, rather than to list them by multiple exhibit and record page numbers which would be confusing, except where necessary. All were admitted into evidence and appear in the Index of Exhibits in the case record.

      The act number is determined by the sequence in which the Governor happens to sign bills, and is irrelevant in determining when a bill was passed by the legislature or takes effect.


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    STATE of Louisiana v. Ernest R. BLACKWELL
    NO. 18-KA-118
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR DEFENDANT/APPELLANT, ERNEST R. BLACKWELL, Prentice L. White
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Stephen J. Windhorst
   WINDHORST, J.

Defendant, Ernest R. Blackwell, seeks review of his conviction and sentence for the misdemeanor offense of home improvement fraud. For the following reasons, we affirm defendant's conviction, amend defendant's sentence and affirm the sentence as amended, and remand with instructions.

Statement of the Case

On November 4, 2013, the District Attorney for St. John the Baptist Parish filed a bill of information charging defendant, Ernest R. Blackwell, with the misdemeanor offense of home improvement fraud in violation of La. R.S. 14:202.1(A)(2). The State also filed a felony bill of information charging defendant with misapplication of payment by a contractor in an amount greater than one thousand dollars and engaging in business without a contractor's license. Defendant pled not guilty to all charges, and defendant's misdemeanor case was referred to the trial court's felony docket.

On January 27, 2015, the State amended the aforementioned felony bill of information to add home improvement fraud as a third count. On September 15, 2015, the State nolle prossed the home improvement fraud count contained in the felony bill of information, concluding that home improvement fraud was in fact a misdemeanor violation under the alleged facts of the case. Given that the charges in both the felony and misdemeanor cases arose from the same relevant facts, the State elected to simultaneously try defendant's felony counts by jury and the instant misdemeanor charge by bench trial. Following the simultaneous jury/bench trial held on September 15, 2015, on December 28, 2015, the trial court issued written reasons finding defendant guilty of the misdemeanor offense of home improvement fraud.

On January 25, 2016, the trial court sentenced defendant on his home improvement fraud conviction to six months imprisonment without probation or suspension of sentence. After a restitution hearing, the trial court ordered defendant to pay $38,900.00 in restitution to the Calmeses.

Facts

Defendant's convictions arise from repair work done for Thomas and Michelle Calmes. Mr. and Mrs. Calmes' home in LaPlace, Louisiana, was badly damaged in 2012 by Hurricane Isaac. In mid-September of 2012, Mr. and Mrs. Calmes hired defendant to perform repair work on their home because of his competitive quote, projected timeline, and "because he portrayed himself as a contractor who would do all the subcontracting" and supervise the work. According to Mrs. Calmes, defendant indicated that he was a licensed contractor able to perform all of her home repairs and that anything he was unable to do he would hire subcontractors to do. At trial, Mrs. Calmes testified that when meeting with defendant, he gave her a flyer indicating that he was with Professional Remodeling Specialists, aka "PRS, LLC" (PRS), which contained a license number (40025) indicating an association with "Dean Walters, Residential/Commerical State Licensed Contractor," as well as two email addresses, namely "eblackwell777@yahoo.com" and "professionalrspecialists@gmail.com." Mrs. Calmes explained that she would have never hired someone who was not a licensed contractor.

Defendant personally presented Mr. and Mrs. Calmes with two contracts for repair work, which they both signed on October 11 and 13, 2012. The first contract pertained to all labor and materials for repairs to their home with a contract price of $82,500.00, and the second was for roof repairs with a contract price of $12,000.00. Mrs. Calmes testified that the company listed on the contract was "Dean Walters, d/b/a Professional Remodeling Specialists, LLC," license number 40025, and was signed on behalf of PRS by Keely Authement. Defendant told the Calmeses that Ms. Authement was a company officer, that she signed all contracts, and that he and Dean Walters were co-owners of PRS. Mr. and Mrs. Calmes never met either Ms. Authement or Mr. Walters.

Work began on the Calmeses' home on October 15, 2012. At trial, Mrs. Calmes explained that the repairs to her home would be financed by insurance money paid directly to her mortgage company, Wells Fargo, who would then release payment to her and her husband. Defendant, as the contractor/owner of PRS, signed a waiver of lien, required by Wells Fargo, related to his work on the project.

Mrs. Calmes testified that she and her husband paid defendant approximately $55,000.00. An October 18, 2012 check from Mrs. Calmes' personal bank account was written out to PRS and was endorsed for deposit by Ms. Authement. An October 25, 2012 check, issued by Wells Fargo, was made out to PRS and the Calmeses. Mrs. Calmes testified that she and her husband, along with defendant and Ms. Authement, endorsed the check. A November 8, 2012 check, also issued by Wells Fargo, was made out to PRS and the Calmeses. The Calmeses and only defendant endorsed this check. The last check, dated December 7, 2012, from Wells Fargo was made out to PRS and the Calmeses. The Calmeses endorsed this check and gave it to defendant.

Mrs. Calmes recalled that once work commenced, there were problems with the sheetrock, paint, the wood flooring, and the kitchen and bathroom tile. She explained that defendant was difficult to contact, and that his subcontractors complained that defendant was not paying them for their work. Mrs. Calmes testified that while the contract stated that the price included labor and materials, the Calmeses spent approximately $8,000.00 of their own money purchasing materials at defendant's request. Defendant told the Calmeses that he would reimburse them for their purchases but he never did.

Mrs. Calmes further testified that she and her husband selected cabinets and countertops from John Sun Kitchen and Bath (John Sun) as part of the repairs to be made to their home and that defendant only paid a portion of the money owed to John Sun, claiming that the cabinets had not been installed correctly. According to Mrs. Calmes, defendant was aware that money was owed for the cabinets and informed the Calmeses that it would be paid off. However, because the bill was not paid, a lien was placed on the Calmeses' home for the outstanding amount.

The Calmeses terminated defendant's services on January 14, 2013, and filed a complaint against him with the state licensing board. They also took out an SBA loan in the amount of $39,000.00 to cover the expenses they incurred by having to hire a new contractor.

Thomas Calmes corroborated his wife's testimony, in pertinent part, confirming that defendant submitted an estimate for their home repairs from his personal email account to his wife's email, that he signed the contract given to him personally by defendant, that defendant represented to him that he was a licensed contractor, that defendant committed to doing their home repairs, and that defendant began work on their home on October 15, 2012. Mr. Calmes also testified that he contacted the licensing board before signing the contract with defendant and confirmed that the license number in the contract (40025) was a valid license. Mr. Calmes testified that they hired a second contractor to finish the repairs.

Todd Duhe, business owner of InspecTile, was qualified as a forensic expert on tile, stone, and flooring. He testified that in January of 2013, Mr. Calmes contacted him about incomplete work performed on his home. Upon inspection of the Calmeses' home, Mr. Duhe reported that the Calmeses were living in one bedroom of the house and were using the hallway bathroom. He noted several areas of concern regarding the workmanship performed on the house in the master bathroom, the hallway bathroom, the kitchen, and the wood flooring, all requiring removal and replacement of the materials used. Mr. Duhe concluded his report finding, "This entire installation reflects improper installation methods. Contractor did not follow minimum guidelines or procedures. Remove and replace all mentioned areas."

After defendant was arrested and advised of his Miranda rights, he admitted that he performed work on the Calmeses' house and confirmed that he had been paid approximately $54,000.00 to $55,000.00 for that work. Defendant stated that he was unaware of any problems regarding his work until the Calmeses terminated him. Defendant said he used Mr. Walter's license number because he had taken "on another party to alleviate some of" his workload and confirmed that Ms. Authement was his ex-girlfriend. Defendant explained that he had not paid the outstanding balance owed to John Sun for the Calmeses' cabinets because he had not been paid enough money. Defendant admitted that the email "eblackwell777@yahoo.com" contained on the flyer provided to the Calmeses was his personal email address and that one of the phone numbers listed on the flyer was for Professional Shoring Elevations, a corporation defendant started in 2011 with Mr. Walters.

The bank records for PRS showed that this company maintained two accounts, one with Regions bank and one with Capital One bank. The account maintained at Regions was listed under the name "PRS, 225 Lee Street, Slidell," with an associated email address of "professionalrspecialists@gmail," which was consistent with the flyer provided by defendant. The signatory listed on the account was Ms. Authement. But, the Regions bank records contained several cancelled checks signed by defendant, including a check signed by defendant for work performed on the Calmeses' house. Prior to the deposits of the Calmeses' checks, the Regions account contained less than $100.00. After the deposits were made, the records showed that Ms. Authement wrote checks to herself for $3,000.00 in October of 2012 and $1,000.00 in November of 2012. The PRS business account further reflected spending charges at clothing retail stores and bar establishments.

As to the Capital One account, bank records reflected defendant was signing checks made out to PRS and was writing checks to Mr. Walters and Ms. Authement. Defendant also had a personal bank account with Capital One in which two checks made out to PRS d/b/a Ernest Blackwell were deposited.

At trial, the John Sun office manager confirmed that in September of 2012 her business provided cabinets for the Calmeses' renovation. The invoice dated December 14, 2012 for $8,824.00 was billed to Professional Shoring via email address "eblackwell777@yahoo.com." John Sun received a check for $6,000.00 from Professional Shoring Elevations and signed by defendant, leaving a remaining balance of $2,824.00. Repeated attempts were made to secure payment of the outstanding balance to no avail, so a lien was placed on the Calmeses' property on March 15, 2013. The outstanding invoice was eventually paid a few months prior to trial on May 13, 2015, by cashier check listing the name of the remitter as "Mr. Walters." The outstanding fees owed for the filing of the lien in the amount of $475.00 were also paid by cashier check the day before the trial commenced, referencing Mr. Walters as the remitter and hand delivered by a woman who identified herself as "Keely."

Brian Blackwell, defendant's brother, testified on behalf of the defense. He stated that he performed work for PRS on the Calmeses' house seven days a week and that defendant acted as supervisor. He asserted that Mr. Walters and Ms. Authement, and on occasion, defendant, paid him for his work.

Lastly, Keely Authement, defendant's ex-girlfriend, testified that she has been in the construction business for many years, and that in September of 2012, she formed PRS with Mr. Walters, whom she met through defendant. She further explained that she and Mr. Walters are the only two owners of PRS and that Mr. Walters is a licensed contractor. Ms. Authement stated that she hired defendant as her foreman to perform work on houses that had been damaged in St. John Parish in 2012 by Hurricane Isaac. Ms. Authement testified that as co-owner of PRS, she signed a contract with the Calmeses containing PRS' license which she authorized defendant to deliver to the Calmeses. Ms. Authement stated that she never received a check for $6,0000 for roof work allegedly performed on the Calmeses' roof. She further testified that she authorized defendant to pick up the Calmeses' cabinets from John Sun and that defendant paid for the cabinets out of his own account and was then reimbursed by PRS. Ms. Authement was unaware that a lien was pending on the Calmeses' home because of outstanding fees owed to John Sun for the cabinets; however, when she became aware, the money owed was paid.

Appellate Jurisdiction

This Court's appellate jurisdiction extends only to cases that are triable by a jury. State v. Chess, 00-164 (La. App. 5 Cir. 6/27/00), 762 So.2d 1286, 1287 (citing La. Const. of 1974, art. 5 § 10 ; La. C.Cr.P. art. 912.1 ). Unless the punishment that may be imposed exceeds six months imprisonment, a misdemeanor is not triable by a jury. Chess, supra (citing La. Const. of 1974, art. 1 § 17 ; La. C.Cr.P. art. 779 ; State v. Robinson, 94-864 (La. App. 5 Cir. 3/15/95), 653 So.2d 669, 670 ).

In the present case, defendant was charged with and convicted of home improvement fraud, in violation of La. R.S. 14:202.1(A)(2), a misdemeanor carrying a possible fine of not more than one thousand dollars and imprisonment for not more than six months. See La. R.S. 14:202.1(D)(2). Defendant's misdemeanor was not triable by a jury, thus, defendant's misdemeanor offense was tried by bench trial simultaneously with defendant's felony offenses, which were filed in a separate bill of information. The proper procedure for seeking review of a misdemeanor conviction is an application for writ of review directed to this Court to exercise its supervisory jurisdiction. See La. C.Cr.P. art. 912.1(C)(1) ; State v. Trepagnier, 07-749 c/w 07-750 (La. App. 5 Cir. 3/11/08), 982 So.2d 185, 188, writ denied, 08-0784 (La. 10/24/08), 992 So.2d 1033.

Nonetheless, this Court has reviewed misdemeanor convictions and sentences on appeal when the misdemeanor and felony convictions are so intertwined that the interest of justice are better served by considering the matters together. In State v. Carroll, 16-599 (La. App. 5 Cir. 2/8/17), 213 So.3d 486, 488, defendant was charged by bill of information with two counts of battery upon a correctional facility employee, in violation of La. R.S. 14:34.5. Defendant eventually pled guilty to the amended charge of battery of a police officer, in violation of La. R.S. 14:34.2 and battery of a correctional facility employee. This Court found that the misdemeanor and felony convictions were so intertwined that considering the matters together better served the interest of justice.

In State v. Jones, 12-640 c/w 12-641 (La. App. 5 Cir. 10/30/13), 128 So.3d 436, 441-43, defendant was charged with resisting an officer, a misdemeanor, in one bill of information and with second offense possession of marijuana, a felony, in a separate bill of information. Defendant pled guilty pursuant to State v. Crosby, 338 So.2d 584 (La. 1976), and reserved the right to appeal the denial of his motion to suppress. Defendant filed a motion for appeal in both cases, which was granted, and asked this Court to consolidate the matters for appeal. At the trial court level, the misdemeanor case was grouped together with the felony case for the motion to suppress hearing and defendant's guilty pleas, and his sentencing in both matters occurred simultaneously. This Court held that because the two convictions appeared intertwined, judicial economy dictated considering the matters together. See also, State v. Christophe, 12-82 (La. App. 5 Cir. 10/16/12), 102 So.3d 935, writ denied, 12-2432 (La. 4/19/13), 111 So.3d 1029.

In this case, defendant's misdemeanor and felony offenses were charged in separate bills of information. Defendant's felony appeal is also currently pending before this Court (18-KA-116), and the facts in both defendant's felony and misdemeanor cases are the same. Thus, judicial economy supports reviewing defendant's felony and misdemeanor convictions at the same time. Accordingly, although no motion to consolidate was filed relative to defendant's felony and misdemeanor appeals, we find defendant's misdemeanor and felony convictions are so intertwined that judicial economy and the interest of justice are better served by considering both together on appeal. We, however, render separate opinions on the misdemeanor conviction and sentence and the felony convictions and sentences.

Assignment of Error One

In his first assignment of error, defendant generally states that he is challenging his misdemeanor conviction and two felony convictions. The substance of defendant's argument, however, focuses solely on the sufficiency of the evidence used to convict him of the felony offenses, engaging in the business of contracting without a license and misapplication of payment by a contractor. Defendant did not brief any alleged error regarding the sufficiency of the evidence used to convict him of the misdemeanor offense of home improvement fraud, which requires proof that he: (1) contracted to perform or subcontracted for the performance of any home improvement; and (2) knowingly used "any deception, false pretense, or false promise to cause any person to enter into a contract for home improvements." La. R.S. 14:202.1(A)(2).

La. U.R.C.A., Rule 2-12.4(B)(4) provides that "[a]ll assignments of error and issues for review must be briefed. The Court may consider as abandoned any assignment of error or issue for review which has not been briefed." See also State v. Tranchant, 10-459 (La. App. 5 Cir. 11/23/10), 54 So.3d 730, writ denied, 10-2821 (La. 4/29/11), 62 So.3d 108. Because defendant has failed to brief or discuss this assigned error, we find that defendant has abandoned this assignment of error and do not address its merits.

Assignment of Error Two

In his second assignment of error, defendant argues his motion for mistrial premised on a witness, Detective Shard's, statement regarding defendant's pending charge for home improvement fraud (the instant misdemeanor offense) was erroneously denied by the trial court. This assignment of error relates to defendant's felony convictions pending before this Court under case number 18-KA-116 and is addressed in the opinion for that case. It is not applicable to defendant's misdemeanor conviction as defendant argues he was prejudiced when a witness referenced the instant home improvement fraud charge before the jury. Thus, we do not address the arguments related to this assignment of error here.

Errors Patent Discussion

We reviewed the record for errors patent and address the following. See La. C.Cr.P. art. 920 ; State v. Oliveaux, 312 So.2d 337 (La. 1975) ; and State v. Weiland, 556 So.2d 175 (La. App. 5th Cir. 1990).

Post-Conviction Advice

Based on the record, defendant received incomplete advice regarding the period for seeking post-conviction relief, as required by La. C.Cr.P. art. 930.8. The law provides that if a defendant receives incomplete advice of the period for seeking post-conviction relief, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief in its opinion. See State v. Perez, 17-119 (La. App. 5 Cir. 8/30/17), 227 So.3d 864. Thus, we hereby inform defendant that under La. C.Cr.P. art. 930.8, a defendant shall have two years after the judgment of conviction and sentence has become final to seek post-conviction relief.

Illegal Sentence

The trial court imposed defendant's misdemeanor sentence without benefit of probation or suspension of sentence. However, La. R.S. 14:202.1 does not require such restrictions. Defendant's sentence is therefore illegal. According to La. C.Cr.P. art. 882(A), "an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review." Thus, we amend defendant's sentence to remove the restriction on probation and suspension of sentence. See State v. Hebert, 04-134 (La. App. 5 Cir. 6/29/04), 877 So.2d 1115, 1123, writ denied, 04-2674 (La. 2/25/05), 894 So.2d 1132.

Restitution

The restitution minute entry from September 12, 2016 reflects that the trial court imposed $38,900.00 in restitution on defendant's felony offense of engaging in business without a contractor's license, when the transcript reflects that the trial court imposed said restitution on the instant misdemeanor conviction for home improvement fraud. The jurisprudence allows this Court to remand a case for correction of the minute entry in its errors patent review. See State v. Lyons, 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, writ denied, 14-0481 (La. 11/7/14), 152 So.3d 170 (citing State v. Long, 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 ). Accordingly, we remand the matter for correction of the minute entry to accurately reflect that the restitution imposed in this case was on defendant's misdemeanor conviction for home improvement fraud.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS

      On September 17, 2015, a unanimous six-person jury found defendant guilty on both felony counts. Defendant's felony convictions are currently pending before this Court on appeal under companion case number 18-KA-116.

      Testimony revealed that Ms. Authement is defendant's ex-girlfriend and is not a licensed contractor.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      The issues related to these arguments are discussed in this Court's opinion for case number 18-KA-116.

      It is further noted that while the State filed a brief in defendant's felony appeal, it did not file one in the instant misdemeanor case, and further did not address the sufficiency of the evidence as it relates to defendant's misdemeanor conviction in its brief filed under docket number 18-KA-116.

      Nevertheless, a review of the record under State v. Raymo, 419 So.2d 858, 861 (La. 1982), reflects that the State presented sufficient evidence to establish the essential statutory elements of home improvement fraud through testimony and by means of the evidence presented at trial as further detailed in the written judgment rendered by the trial court on December 28, 2015.


text:
    STATE of Louisiana v. Rickey OVERSTREET
    NO. 18-KA-380
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Juliet L. Clark
    COUNSEL FOR DEFENDANT/APPELLANT, RICKEY OVERSTREET, Bertha M. Hillman
    DEFENDANT/APPELLANT, RICKEY OVERSTREET, In Proper Person
    Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.
   WINDHORST, J.

Defendant, Rickey Overstreet, through appointed counsel and by pro se brief, appeals his convictions and sentences which resulted from a guilty plea entered under State v. Crosby, 338 So.2d 584 (La. 1976). For the reasons that follow, we affirm defendant's convictions and sentences and remand with instructions.

Procedural History and Facts

On September 21, 2016, the Jefferson Parish District Attorney filed a bill of information charging defendant, Rickey Overstreet, with possession with intent to distribute cocaine in violation of La. R.S. 40:967 A (count one); possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (count two); and possession of Tramadol in violation of La. R.S. 40:969 C (count three). At his arraignment, defendant pled not guilty to the charged offenses. On November 16, 2016, the State amended the bill of information charging defendant with the additional offense of possession with intent to distribute marijuana and/or synthetic cannabinoids in violation of La. R.S. 40:966 A (count four). Defendant was re-arraigned on November 28, 2016, on the amended bill and pled not guilty.

On September 22, 2016, defendant filed motions to suppress evidence and statement. On March 16, 2017, the trial court denied defendant's motions to suppress. On the same date, a hearing was held on the State's "Notice of Intent to Use Other Acts Evidence Pursuant to L.C.E. Article 404 B." The trial court granted the State's motion with respect to defendant's prior arrests, but took the State's 404B motion under advisement regarding the text message evidence sought to be used by the State at trial. On April 5, 2017, the trial court granted the State's 404B motion with respect to the text message evidence.

On May 5, 2017, defendant filed a supervisory writ application with this Court challenging the trial court's March 16, 2017 judgment denying his motions to suppress evidence and statement and the trial court's April 5, 2017 judgment granting the State's 404 B motion. This Court denied defendant's writ application.

On September 11, 2017, defendant withdrew his former pleas of not guilty, and after being advised of his Boykin rights, pled guilty under Crosby, to the amended bill of information. Defendant was sentenced to fifteen years imprisonment at hard labor on counts one, two, and four and to five years imprisonment at hard labor on count three. The trial court ordered defendant's sentences to be served concurrently with one another and any other sentence defendant may be currently serving. The trial court also recommended defendant for any and all self-help programs available through the Department of Corrections, including substance abuse treatment.

On the same date, the State filed a habitual offender bill of information alleging defendant to be a second-felony offender on count one, to which defendant stipulated. The trial court vacated the original sentence on count one and resentenced defendant to fifteen years imprisonment without benefit of probation or suspension of sentence. The trial court ordered defendant's enhanced sentence to be served concurrently with the original sentences imposed on counts two, three, and four.

On April 16, 2018, defendant filed an application for post-conviction relief seeking an out-of-time appeal, which the trial court granted. This appeal followed.

Because defendant entered guilty pleas, the underlying facts were not fully developed at trial. However, during the guilty plea colloquy, the State provided the following factual bases for the guilty pleas:

Yes, Your Honor. If this matter had proceeded to trial, the State would prove beyond a reasonable doubt that the Defendant violated Louisiana Revised Statute 40:967(A) in that he did knowingly or intentionally possess with intent to distribute a controlled dangerous substance, to wit cocaine on or about August 17th of 2016.
For Count 2, the State would prove beyond a reasonable doubt that on or about August 17th of 2016 the Defendant violated Louisiana Revised Statute 14:95.1 in that he did have in his possession a firearm, to wit a Kel-Tec P-11 caliber 9 millimeter Luger handgun having been previously convicted of the crime of possession with intent to distribute marijuana in violation of Louisiana Revised Statute 40:966(A) under Case Number 04-4982 on August 20th, 2007, in Division A of the 24th Judicial District Court, Parish of Jefferson.
For Count 3, the State would prove beyond a reasonable doubt that the Defendant violated Louisiana Revised Statute 40:969(C) in that he did knowingly or intentionally possess a controlled dangerous substance, to wit tramadol on or about August 17th of 2016.
For Count 4, the State would prove beyond a reasonable doubt that on or about August 17th of 2016 the Defendant did violate Louisiana Revised Statute 40:966(A) in that he did knowingly or intentionally possess with intent to distribute a controlled dangerous substance, to wit marijuana.

Discussion

In his counseled assignment of error, defendant argues the trial court erred in denying his motion to suppress evidence. He contends the officers made an illegal, "pretext" stop of his vehicle because they were familiar with him, as it is highly unlikely that Detective Keenan Jackson observed him without a seat belt given the distance, time of day, and window tinting on his vehicle. Even assuming a valid stop, defendant contends the officers had no authority to search or question him or to search his vehicle solely based upon an alleged seat belt violation. He further claims the officers were not authorized to search or detain him for a period of time longer than reasonably necessary to issue a citation for the seat belt violation absent reasonable suspicion of additional criminal activity. Because the officers had no reasonable suspicion of criminal activity, defendant argues the officers' conduct was not reasonably related to the circumstances that justified the stop.

In defendant's pro se assignments of error, defendant additionally argues that Detective Jackson did not have authority to order him from his vehicle once stopped for the alleged seat belt violation. He also contends that the police officers violated La. R.S. 32:295.1 F when they used the seat belt law as a basis for probable cause to stop and search defendant and his vehicle without additional evidence of ongoing criminal activity. Defendant argues that the mere backing up of his vehicle is not a specific articulable fact of ongoing criminal activity; therefore, the property seized was illegally obtained, without his consent, and pursuant to an illegitimate detention in violation of La. C.Cr.P. art. 215.1 D.

The transcript, the waiver of rights form, the sentencing minute entry, and defendant's APCR seeking an out-of-time appeal reflect that defendant's guilty pleas were entered under Crosby. While a plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea, a plea under Crosby allows appellate review if, at the time the plea is entered, the defendant expressly reserves his right to appeal a specific adverse ruling in the case. State v. Turner, 10-995 (La. App. 5 Cir. 9/27/11), 75 So.3d 491, 492, writ denied, 11-2379 (La. 4/27/12), 86 So.3d 625. The record does not reflect the specific ruling defendant desired to preserve for review.

A defendant's failure to specify which pre-trial ruling he desires to reserve for appeal as part of a guilty plea entered under Crosby may limit the scope of appellate review, but does not preclude review altogether. State v. Joseph, 03-315 (La. 5/16/03), 847 So.2d 1196 (per curiam ). Absent a detailed specification of which adverse pre-trial rulings the defendant reserved for appellate review as part of his guilty plea, an appellate court should presume that the Crosby reservation preserves review of those evidentiary rulings which "go to the heart of the prosecution's case," such as the denial of a motion to suppress, and not rulings that may affect the conduct of the trial but do not substantially relate to guilt, such as the denial of a continuance or severance. Joseph, 847 So.2d at 1196-97.

Considering the foregoing, we find that the denial of defendant's motion to suppress evidence is properly before this Court on appeal. State v. Kinard, 12-446 (La. App. 5 Cir. 11/27/12), 105 So.3d 974, writ denied, 12-2745 (La. 10/25/13), 124 So.3d 1090 ; State v. Clement, 11-1150 (La. App. 5 Cir. 9/11/12), 101 So.3d 460, writ denied, 12-2214 (La. 4/1/13), 110 So.3d 139 ; State v. Ramsey, 10-333 (La. App. 5 Cir. 1/25/11), 60 So.3d 36.

At the motion to suppress hearing, Detective Keenan Jackson of the Kenner Police Department testified that on August 17, 2016, he and his partner, Officer John Frumveller, were on proactive patrol when he observed defendant traveling eastbound on Airline Drive without a seat belt. Before the officers were able to effectuate the stop, defendant's vehicle pulled into a gas station parking lot, at which time the officers set up surveillance nearby. Upon running the vehicle's license plate, they discovered the driver of the vehicle to be Rickey Overstreet, defendant, whom Officer Frumveller knew from prior narcotics investigations.

While conducting surveillance, they observed a female passenger exit the vehicle, enter the gas station, and return to the vehicle a few moments later. Detective Jackson testified that they again attempted to conduct their traffic stop for the seat belt violation once defendant started to exit the parking lot by following behind defendant's vehicle, which was about to turn onto Airline Highway. Defendant noticed them and immediately drove in reverse through the parking lot and pulled up to one of the gas station pumps. Detective Jackson testified that when he pulled up behind defendant's vehicle, defendant exited the vehicle as if he was going to flee on foot and he instructed defendant to get back into the vehicle. Detective Jackson then approached the vehicle and observed that defendant was "very nervous, sweating, shaking" and did not make eye contact. As a result, defendant and his passenger, Joy Franklin, were ordered to exit the vehicle.

Detective Jackson further testified that once defendant was out of the vehicle, he was "getting ready" to conduct a pat-down of defendant's person when defendant informed him that he had a "blunt" (marijuana cigar) in his pocket. Detective Jackson recovered the marijuana cigar from defendant's back pocket, placed defendant under arrest, and advised defendant of his Miranda rights. A search of his person incident to arrest further revealed marijuana and pills later identified as Tramadol. Detective Jackson asked defendant whether there was anything in the vehicle he should "be aware of" and defendant stated that there was a handgun inside the vehicle. The weapon was located inside the vehicle where defendant indicated and was secured. Detective Jackson then verbally asked defendant if they could search his vehicle, to which defendant consented.

Pursuant to defendant's consent, Detective Jackson testified that a search of the vehicle was performed and a clear plastic bag containing off-white, rock-like objects was recovered inside a compartment under the steering wheel and defendant's cell phone was seized from the vehicle's dashboard. Defendant was then transported to the Kenner Police Department where he was advised of his Miranda rights for a second time and executed a waiver of rights form. A search warrant was also prepared and executed for the contents of defendant's cell phone.

Defendant's passenger, Ms. Franklin, testified that on the evening of August 17, 2016, defendant was wearing his seat belt. Ms. Franklin further testified that before defendant attempted to turn onto Airline Highway, she noticed that "them people" were following them. Defendant told her to "chill out. Just wait a minute; let's see," at which time defendant reversed his vehicle back into the parking lot to see if "they" were following them. Ms. Franklin denied ownership of the contraband found in defendant's vehicle.

At the conclusion of the hearing, defense counsel argued that it would have been impossible for Detective Jackson to have seen the alleged seat belt violation given his location, the time of day, and the position of defendant's vehicle at the time the violation was observed. Thus, without the seat belt violation to justify the stop, defense counsel argued the motion to suppress should be granted. Defense counsel further contended that there was an alleged temporal issue between the observance of the traffic violation and the actual stop. The trial court denied defendant's motion to suppress evidence and statement.

In a hearing on a motion to suppress evidence seized without a warrant, the State bears the burden of establishing the admissibility of evidence. La. C.Cr.P. art. 703 D. The trial court's denial of a motion to suppress is afforded great weight and its ruling will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Morton, 08-164 (La. App. 5 Cir. 7/29/08), 993 So.2d 651, 655 ; State v. Butler, 01-907 (La. App. 5 Cir. 2/13/02), 812 So.2d 120, 124. The credibility of witnesses at a suppression hearing is within the discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness, and such credibility determinations will not be reweighed on appeal. State v. Calvert, 01-826 (La. App. 5 Cir. 2/26/02), 811 So.2d 1081, 1084.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Leonard, 06-361 (La. App. 5 Cir. 10/31/06), 945 So.2d 764, 766. Warrantless searches and seizures are per se unreasonable unless justified by one of the exceptions to the warrant requirement. Id.

The right of law enforcement officers to stop and interrogate those reasonably suspected of engaging in criminal activity is recognized by La. C.Cr.P. art. 215.1, as well as by state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; State v. Belton, 441 So.2d 1195, 1198 (La. 1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). Generally, the decision to stop a vehicle is reasonable when the police have probable cause to believe a traffic violation has occurred. State v. Waters, 00-356 (La. 3/12/01), 780 So.2d 1053, 1056 (citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996) ). The standard is purely objective and does not take into consideration the subjective beliefs or expectations of the detaining officer. Id."When an officer observes what he objectively believes is a traffic offense, the decision to stop the vehicle is reasonable, regardless of the officer's subjective motivation." State v. Hunt, 09-1589 (La. 12/1/09), 25 So.3d 746, 753.

La. R.S. 32:295.1 requires seat belt use by occupants of vehicles and a driver's failure to wear a seat belt constitutes reasonable cause for a stop.

State v. Jackson, 04-728 (La. App. 5 Cir. 12/14/04), 892 So.2d 71, writ denied, 05-548 (La. 01/9/06), 918 So.2d 1033 ; State v. Landry, 01-0784 (La. App. 4 Cir. 12/12/01), 804 So.2d 791 ; Hunt, supra. Prior to 2000, failure to wear a seatbelt was a "secondary offense," meaning that a police officer could not stop a vehicle for that violation alone, but had to have cause which was an ordinary offense, after which a seatbelt violation could be cited. In 1999, the legislature removed language prohibiting police officers from stopping a vehicle solely on the basis of a seat belt violation, indicating the legislature's intent to allow police to stop vehicles and issue citations for that violation alone. See 1999 La. Act 1344.

Detective Jackson testified that he clearly observed defendant driving his vehicle without wearing a seat belt. We find the initial stop was justified and find no error in the trial court's conclusion that Officer Jackson had a clear and unobstructed view of defendant's seat belt violation. Furthermore, defendant's contention that the police officers made a "pretext" stop based upon their familiarity with defendant and not because of an alleged seat belt violation is lacking in merit as the alleged true intent of the officer is not to be considered. Whren v. U.S., supra ; Hunt, supra. Moreover, the evidence established that defendant was issued a traffic citation for the seat belt violation.

Once an officer has lawfully stopped a vehicle for a traffic violation, he is authorized to order the driver (as well as passengers) out of the vehicle pending completion of the stop. Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997) ; Hunt, 25 So.3d at 753-54 ; State v. Benoit, 01-2712 (La. 5/14/02), 817 So.2d 11, 15 ; State v. Smith, 07-815 (La. App. 5 Cir. 3/11/08), 982 So.2d 821, 825, writ denied, 08-927 (La. 11/14/08), 996 So.2d 1088 ; State v. Jackson, 04-728 (La. App. 5 Cir. 12/14/04), 892 So.2d 71, 75, writ denied, 05-548 (La. 01/9/06), 918 So.2d 1033.

Considering defendant's behavior and demeanor prior to and during the traffic stop in the parking lot, Detective Jackson had authority to order defendant and his passenger to exit the vehicle pending completion of the stop.

After a traffic stop, an officer may conduct a protective frisk of the person if he reasonably suspects he is in danger. La. C.Cr.P. art. 215.1 B; State v. Bellow, 07-824 (La. App. 5 Cir. 3/11/08), 982 So.2d 826, 830 ; State v. Cowart, 03-880 (La. App. 5 Cir. 11/25/03), 862 So.2d 225, 231. It is well known that drug activity creates a dangerous environment and that there is a close association between narcotics and weapons. State v. Haywood, 00-1584 (La. App. 5 Cir. 3/28/01), 783 So.2d 568, 576 ; State v. Fortier, 99-0244 (La. App. 4 Cir. 1/26/00), 756 So.2d 455, 461, writ denied, 00-0631 (La. 9/22/00), 768 So.2d 1285.

Prior to conducting the traffic stop, Detective Jackson and Officer Frumveller had knowledge that defendant was the subject of prior narcotics investigations. Therefore, Detective Jackson testified that he was preparing to conduct a pat-down of defendant's person once he was outside the vehicle, when defendant informed him that he had a marijuana cigar in his pocket.

Even without defendant's spontaneous voluntary admission regarding the marijuana cigar in his pocket, Detective Jackson had reasonable suspicion to conduct a protective frisk of defendant's person. Defendant's behavior of reversing through the parking lot upon seeing the officers, his attempted flight, and his general demeanor upon approach by Detective Jackson, coupled with his known criminal history, warranted Detective Jackson's protective frisk of defendant.

Once the marijuana cigar was recovered, Detective Jackson had probable cause to arrest defendant for possession of marijuana. Defendant was placed under arrest and advised of his Miranda rights. After indicating he understood his rights, defendant informed Detective Jackson that there was a handgun in the vehicle between the driver's seat and the center console. The weapon was located and secured. "If the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person." La. C.Cr.P. art. 215.1 C. Having knowledge of defendant's criminal background, defendant was also arrested for felon in possession of a firearm.

A search of the defendant is legal if there is probable cause for his arrest. State v. Surtain, 09-1835 (La. 3/16/10), 31 So.3d 1037. A search incident to arrest revealed defendant's illegal possession of Tramadol and marijuana, which were validly seized.

Detective Jackson then verbally asked defendant for his consent to search his vehicle, to which defendant agreed. Pursuant to the search of defendant's vehicle, cocaine was recovered. A warrantless search conducted pursuant to a valid consent is permitted by both the United States and Louisiana Constitutions. State v. Strange, 04-273 (La. 5/14/04), 876 So.2d 39 ; State v. Raheem, 464 So.2d 293 (La. 1985) ; State v. Williams, 38,379 (La. App. 2 Cir. 11/25/03), 858 So.2d 878, writ denied, 03-3535 (La. 3/12/04), 869 So.2d 807 ; State v. Crews, 28,153 (La. App. 2 Cir. 5/8/96), 674 So.2d 1082. When the State relies on consent to justify a warrantless search, it has the burden of proving the consent was given freely and voluntarily. State v. Taylor, 04-90 (La. App. 5 Cir. 5/26/04), 875 So.2d 962, 967, writ denied, 04-1649 (La. 11/19/04), 888 So.2d 193. Oral consent is sufficient, and written consent is not required. State v. Ossey, 446 So.2d 280, 287 fn.6 (La. 1984), cert. denied, 469 U.S. 916, 105 S.Ct. 293, 83 L.Ed.2d 228 (1984). The voluntariness of defendant's consent to search his vehicle was not challenged at the hearing on the motion to suppress; moreover, defendant does not contest the voluntariness of his consent to search his vehicle on appeal.

Based on the foregoing, we find no error in the trial court's denial of defendant's motion to suppress the evidence.

Errors Patent Review

The record was reviewed for errors patent, according to the mandates of La. C.Cr.P. art. 920 ; State v. Oliveaux, 312 So.2d 337 (La. 1975) ; and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). The following errors patent requires correction.

The sentencing transcript reflects that after imposition of the sentences on the felony offenses in this case, and the misdemeanor charge not before this Court, the trial court advised defendant that he would be responsible for "the fines and fees set forth on the schedule of fines and fees, including $150 in each case." The trial court then set forth in detail the fines and fees "in each case" as follows:

Clerk of Court, $50; Public Defender fee, $150; transcript fee, $2; DA fee, $20; building fee, $49; Crime Stopper, $2; CMIS, $3; Judicial College, 50 cents. All other fines and fees are waived . Fines and fees are payable in full within 60 days. Immediately upon your release, you need to report to the collections department, okay. (Emphasis added.)

In calculating the fees imposed in this case, it appears that defendant owes a total of $276.50; however, the felony schedule of fines and fees as well as the payment plan set forth in the record indicate a total balance owed of: $1,819.00. Because the amount owed as set forth in the fines and fees form and payment plan do not match the fees actually imposed by the trial court, we remand the matter to the trial court for clarification of the fines and fees owed.

Conclusion

For the reasons stated herein, we affirm defendant's convictions and sentences and remand with instructions consistent with this opinion.

AFFIRMED; REMANDED WITH INSTRUCTIONS

      This Court found the writ application untimely as to defendant's challenge to the trial court's denial of the motions to suppress and as to the trial court's granting of the State's 404B motion, this Court found the text messages were independently relevant to establishing defendant's intent and guilty knowledge and that the probative value of the extraneous evidence outweighed its prejudicial effect.

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

      On the same date, defendant also pled guilty to a misdemeanor seat belt violation under a separate case number which is not before this Court on appeal.

      Due to the overlapping nature of defendant's pro se assignments of error and his counseled assignment of error, these assignments will be addressed simultaneously in a single discussion.

      On appeal, defendant does not argue as to the motion to suppress statement.

      La. R.S. 32:295.1 F provides: "Probable cause for violation of this Section shall be based solely upon a law enforcement officer's clear and unobstructed view of a person not restrained as required by this Section. A law enforcement officer may not search or inspect a motor vehicle, its contents, the driver, or a passenger solely because of a violation of this Section."

      La. C.Cr.P. art. 215.1 D provides: "During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity."

      Detective Jackson testified that he observed the seat belt violation while standing on the north side of Airline Drive facing westbound assisting a fellow officer with a stop, despite the tint on the vehicle's windows.

      Detective Jackson testified that they elected to wait to conduct the traffic stop for the seat belt violation until defendant was no longer in the parking lot of the gas station where there were other people around. Officer Frumveller also confirmed that for officer safety and the safety of the public he does not typically conduct traffic stops in parking lots.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Defendant was issued a traffic citation for the seat belt violation.

      Defendant also executed a consent to search his person at which time a buccal swab was obtained.

      The execution of a waiver form or failure to record a custodial statement is not a requisite under the law for the admissibility of a confession or incriminating statement. State v. Navarre, 302 So.2d 273, 275 (La. 1974).

      It is unclear from the transcript whether the marijuana and Tramadol were found pursuant to the search incident to arrest of defendant for the marijuana cigar or the firearm. Regardless of the timing, the search of defendant's person was conducted after defendant's lawful arrest on one or more charges.

      In his second pro se assignment of error defendant states "once the investigation had concluded concerning the traffic violation, he did not have consent for the ensuring [sic] search." Defendant does not expound upon this vague reference to a lack of consent to search the vehicle. This Court considers this assignment of error or argument as abandoned because it was not briefed. U.R.C.A., Rule 2-12.4 B(4); See also State v. Tranchant, 10-459 (La. App. 5 Cir. 11/23/10), 54 So.3d 730, writ denied, 10-2821 (La. 4/29/11), 62 So.3d 108.

      The sentencing minute entry does not contain any reference to the fees imposed.