author: PER CURIAM Hughes, J., dissenting.

text:
    IN RE: Lionel Lon BURNS
    NO. 2017-B-2153
    Supreme Court of Louisiana.
    May 1, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Lionel Lon Burns, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

In July 2013, respondent began representing the defendants in a civil case captioned Ultimate Entertainment LLC v. Marcel Morton and Down South Entertainment LLC , pending before Judge Michael Mentz in the 24th Judicial District Court for the Parish of Jefferson. Judge Mentz scheduled a pre-trial conference for September 4, 2013. Respondent was unable to attend the pre-trial conference and sent his paralegal, Randy Tucker, to the conference instead. Mr. Tucker never advised court personnel or opposing counsel that he was not an attorney. Instead, Mr. Tucker participated in the conference and later engaged in settlement discussions with opposing counsel in the presence of Judge Mentz' law clerk.

At a subsequent October 8, 2013 contempt hearing, respondent insisted that Mr. Tucker had identified himself as a non-lawyer to court personnel. Respondent's statement was contradicted by court personnel and opposing counsel, and respondent did not call Mr. Tucker to testify in rebuttal even though Mr. Tucker was present for the contempt hearing. Following the contempt hearing, Judge Mentz found respondent in direct contempt of court for sending a non-lawyer to a lawyers-only pre-trial conference with the apparent intention of negotiating a settlement. Judge Mentz also fined respondent $100.

After Judge Mentz filed a disciplinary complaint against respondent, respondent provided the ODC with a sworn statement regarding the matter. During the sworn statement, respondent indicated that his sole purpose in sending Mr. Tucker to the pre-trial conference was to obtain a continuance. Respondent also indicated that he sent Mr. Tucker to the conference with a motion to continue bearing respondent's signature to present to Judge Mentz. However, Mr. Tucker denied that respondent provided him with such a motion, and court personnel indicated that no such motion was ever presented for filing.

The ODC alleged that respondent's conduct violated Rules 5.5(a) (a lawyer shall not practice law in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so) and 8.4(a) (violation of the Rules of Professional Conduct) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS

In August 2016, the ODC filed formal charges against respondent. Respondent answered the formal charges, denying any misconduct. The matter then proceeded to a formal hearing on the merits.

Formal Hearing

The hearing committee conducted the formal hearing in December 2016. Both the ODC and respondent introduced documentary evidence and called several witnesses to testify before the committee. Respondent also testified on his own behalf and on cross-examination by the ODC.

Hearing Committee Report

Following the formal hearing in this matter, the hearing committee summarized the relevant testimony as follows:

Judge Mentz testified that he did not know respondent or Mr. Tucker prior to presiding over the Ultimate Entertain ment case. He also testified that, in addition to Mr. Tucker, attorney Adam Lambert and attorney Chelsea Dazet, both of whom were counsel for the plaintiff, attended the September 4, 2013 pre-trial conference. Judge Mentz' law clerk, Jean Tiemann, was also present. Judge Mentz recalled that Mr. Tucker and Mr. Lambert engaged in settlement discussions and discussed trial exhibits during the pre-trial conference. Furthermore, during the pre-trial conference and a subsequent telephone conference, Judge Mentz believed Mr. Tucker was an attorney with respondent's office. He only learned Mr. Tucker was not an attorney after Mr. Lambert later informed his office of this fact. Judge Mentz then searched the Louisiana State Bar Association member list for Mr. Tucker's name. He also questioned his entire staff and found no evidence that Mr. Tucker had given any of them a business card or personally identified himself as a paralegal during the pre-trial conference. After confirming that Mr. Tucker was not an attorney, Judge Mentz scheduled a contempt hearing against respondent. When respondent offered no evidence that Mr. Tucker had identified himself as a paralegal, Judge Mentz fined respondent. Finally, Judge Mentz indicated that he would have rescheduled the pre-trial conference if he had known that Mr. Tucker was a paralegal.

Ms. Tiemann, Judge Mentz' law clerk, confirmed that she was present during the September 4, 2013 pre-trial conference, which lasted ten to fifteen minutes. She testified that she brought Mr. Tucker into the conference room and that settlement of the case was discussed during the pre-trial conference. Ms. Tiemann had never met Mr. Tucker prior to the pre-trial conference and was certain that he did not give her a business card or indicate he was not an attorney when he appeared for the pre-trial conference. Instead, Mr. Tucker told Ms. Tiemann that he was representing the defendant and that he was there for respondent because someone was ill. She also indicated that Mr. Tucker participated in a subsequent telephone conference with Judge Mentz, during which pretrial matters were discussed. She learned that Mr. Tucker was not an attorney when Mr. Lambert later called to inform her, and she passed the information on to Judge Mentz. Finally, Ms. Tiemann testified that Judge Mentz would not have conducted the pre-trial or telephone conferences had he known Mr. Tucker was not an attorney.

Mr. Lambert, who represented the plaintiff in the Ultimate Entertainment case, testified that he could not recall speaking with or meeting respondent prior to September 24, 2013. Up until then, Mr. Lambert had communicated multiple times with Mr. Tucker, whom he mistakenly believed was respondent's associate. He also could not recall meeting Mr. Tucker prior to the Ultimate Entertainment case. Regarding the September 4, 2013 pre-trial conference, Mr. Lambert indicated that Mr. Tucker said respondent was ill and he was there in respondent's place. Mr. Lambert also recalled that the pre-trial conference lasted fifteen to twenty minutes and the merits and settlement of the case were discussed in Judge Mentz' presence. Mr. Lambert further indicated that Mr. Tucker participated in a subsequent telephone conference with him and Judge Mentz on September 20, 2013. Mr. Lambert did not learn Mr. Tucker was a paralegal until he received a fax cover sheet attached to a motion to continue prepared by respondent. He then contacted Judge Mentz' office to inform them Mr. Tucker was not an attorney. Finally, Mr. Lambert indicated that he believed Mr. Tucker was an attorney because Mr. Tucker negotiated settlement of the case, discussed evidence, witnesses, and the trial, and referred to the defendants as his clients.

Ms. Dazet, who is Mr. Lambert's co-counsel in the Ultimate Entertainment case, testified that Mr. Tucker introduced himself to her at the September 4, 2013 pre-trial conference. Mr. Tucker told her he was at the conference on respondent's behalf and then participated in the conference. Ms. Dazet believed Mr. Tucker was an attorney because of his appearance, introduction, and active participation in the pre-trial conference. Ms. Dazet did not learn Mr. Tucker was a paralegal until Mr. Lambert forwarded her respondent's fax cover sheet on September 21, 2013.

Deidre Peterson, an attorney and respondent's former co-worker, testified that she introduced Mr. Tucker, who worked for her as a paralegal until 2005, to Mr. Lambert on many occasions prior to 2005 while Mr. Lambert was a law clerk for Judge K. K. Norman. The committee noted, however, that Mr. Lambert did not corroborate Ms. Peterson's testimony.

Mr. Tucker testified that he has been respondent's paralegal since 2008. He indicated that respondent expects him to always identify himself as a paralegal. He also indicated that he hands out business cards identifying himself as a paralegal to new acquaintances and the courts, as respondent requires him to do. Furthermore, he stated that respondent does not allow him to engage in settlement negotiations. Regarding the September 4, 2013 pre-trial conference, Mr. Tucker recalled that respondent called him that morning and instructed him to go to Judge Mentz' courtroom and inform the judge respondent could not attend the conference because of illness. Respondent did not tell Mr. Tucker to handle the conference himself or discuss the case with opposing counsel. When he went to Judge Mentz' office, he identified himself as respondent's paralegal and presented his business card to a clerk wearing eyeglasses and asked her to inform Judge Mentz that respondent was ill. He was then led to the conference room where he informed Mr. Lambert and Ms. Dazet of respondent's illness. According to Mr. Tucker, when Judge Mentz entered the conference room, Mr. Lambert informed him of respondent's illness, which Mr. Tucker then confirmed, and Judge Mentz said, "ain't nothing we can do," got up, and ended the conference. He also testified that he identified himself as a paralegal to Judge Mentz and that the conference lasted two minutes. Mr. Tucker did not recall Ms. Tiemann being present for the conference and did not recall participating in an actual pre-trial conference or settlement discussions.

Lynn Newby, Judge Mentz' civil clerk, testified that she was present in Judge Mentz' office on September 4, 2013 and that Mr. Tucker did not give or hand her anything on that day. In contrast to Mr. Tucker's testimony that he gave his business card to a uniformed female in Judge Mentz' office, Ms. Newby also testified that the criminal clerk with whom she shares an office is male and that the other female members of Judge Mentz' staff do not wear uniforms.

Respondent testified that he met Mr. Tucker through attorney Deidre Peterson, Mr. Tucker's former employer, and has employed Mr. Tucker as a paralegal since 2006 or 2007. Respondent stated that he instructed Mr. Tucker not to participate in pre-trial conferences in his absence and that, on September 4, 2013, he specifically instructed Mr. Tucker to "go down, inform the Court I am sick, get the next date, and give me a call." Several times during his testimony, respondent stated he was sick and unable to attend the September 4, 2013 pre-trial conference before Judge Mentz. However, the ODC offered as impeachment evidence the September 4, 2013 docket master printouts and transcripts of two criminal matters in Orleans Parish Criminal Court that indicate respondent made appearances on that day before Judge Robin Pittman on behalf of defendants Melvin Terrance and Ronald Marshall. At first, respondent denied making these two appearances. Then he testified that he had no idea he had made court appearances in Orleans Parish Criminal Court on September 4, 2013 until the ODC provided him evidence of same. He later explained that his previous inconsistent statements and testimony resulted from confusion and forgetfulness and that he was able to get up, pull himself together, appear on these cases, and go back home.

Iain Dover, an assistant district attorney in the Orleans Parish District Attorney's office, testified that he was the attorney for the state in State of Louisiana v. Melvin Terrance . Mr. Dover indicated he spoke to respondent on the telephone about the case on September 3, 2013, and respondent never indicated he was ill or unable to appear for the trial scheduled for the next day. Mr. Dover then testified that respondent appeared in court on September 4, 2013 to represent Mr. Terrance at the trial. That day, respondent never told Mr. Dover he was having health issues that might cause him problems with moving forward with the case. Respondent also showed no signs of having a cold, flu or other health problems.

After considering this testimony and the other evidence presented at the hearing, the committee found that Mr. Tucker appeared on respondent's behalf and participated in the September 4, 2013 pre-trial conference before Judge Mentz without identifying himself as a paralegal. The committee also found that respondent facilitated and assisted Mr. Tucker in the unauthorized practice of law. Additionally, the committee found that respondent was not ill or unable to attend the September 4, 2013 pre-trial conference and that he attended a criminal trial in State of Louisiana v. Melvin Terrance on the same day in Orleans Parish Criminal Court. Finally, the committee found that respondent knowingly misrepresented material facts with the intent to deceive.

Based on these findings, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined the baseline sanction is suspension. In aggravation, the committee found the following: a dishonest or selfish motive, submission of false evidence, false statements, or other deceptive practices during the disciplinary process, refusal to acknowledge the wrongful nature of the conduct, and substantial experience in the practice of law (admitted 1998). In mitigation, the committee recognized two factors: the absence of a prior disciplinary record and the imposition of other penalties or sanctions.

After also considering this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for two years, with 364 days deferred, followed by two years of supervised probation with the conditions that he attend Ethics School and refrain from violating the Rules of Professional Conduct during the probationary period, in default of which the deferred portion of the suspension will be made immediately executory.

Respondent filed an objection to the hearing committee's report.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the hearing committee's factual findings were supported by the record; however, the board clarified that the criminal trial in State of Louisiana v. Melvin Terrance attended by respondent on September 4, 2013 was continued at the request of the State. Based on these facts, the board determined respondent violated Rules 5.5(a) and 8.4(a).

The board determined respondent knowingly violated a duty owed to the legal profession by assisting his paralegal in the unauthorized practice of law. This conduct caused actual harm in that Judge Mentz had to expend additional time conducting the contempt hearing.

Turning to the issue of an appropriate sanction, the board felt that respondent's violation of Rule 5.5(a) was less significant than his deceptive and dishonest testimony. The board agreed with the committee that respondent was not ill on September 4, 2013 when he was scheduled to attend the pre-trial conference before Judge Mentz. Instead, his obligations in other client matters prevented him from attending the pre-trial conference. The board noted that respondent initially testified he was sick and at home the entire day on September 4, 2013, but his testimony changed when the ODC confronted him with docket master sheets in two criminal matters indicating he appeared in Orleans Parish Criminal Court on September 4, 2013. The committee found this to be a knowing misrepresentation by respondent, which the board determined is supported by the record.

In aggravation, the board found the following factors: a prior disciplinary record (an admonition in 2006 and 2007), a dishonest or selfish motive (with respect to the misrepresentation discussed above), submission of false evidence, false statements, or other deceptive practices during the disciplinary process, and substantial experience in the practice of law. In mitigation, the board found the imposition of other penalties or sanctions and the remoteness of prior offenses.

After further considering this court's prior jurisprudence addressing similar misconduct and in light of respondent's false statements during the disciplinary proceedings, the board recommended respondent be suspended from the practice of law for one year and one day. One board member dissented and would recommend a one-year suspension, arguing that to require respondent to apply for reinstatement would be "unnecessary and unduly onerous given the unique facts of this matter."

Both respondent and the ODC filed an objection to the disciplinary board's recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield , 96-1401 (La. 11/25/96), 683 So.2d 714 ; In re: Pardue , 93-2865 (La. 3/11/94), 633 So.2d 150.

After hearing the evidence, the hearing committee made a factual finding that respondent's paralegal, Mr. Tucker, appeared on respondent's behalf and participated in the September 4, 2013 pre-trial conference before Judge Mentz without identifying himself as a paralegal. The committee also found that respondent facilitated and assisted Mr. Tucker in the unauthorized practice of law. Additionally, the committee found that respondent was not ill or unable to attend the September 4, 2013 pre-trial conference and that he attended a criminal trial on the same day in Orleans Parish Criminal Court.

The disciplinary board found the record supports the committee's findings. Based on our review, we agree these findings are not clearly wrong. Accordingly, there is clear and convincing evidence that respondent violated Rules 5.5(a) and 8.4(a) of the Rules of Professional Conduct.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So.2d 520 (La. 1984).

We find that respondent acted knowingly. He violated duties owed to the legal profession, causing actual harm. The baseline sanction for this type of misconduct is suspension. The aggravating and mitigating factors found by the board are supported by the record.

Considering all the circumstances of this case, we find the appropriate sanction in this matter is a one-year suspension from the practice of law. We will further order that respondent attend and successfully complete the next available session of Ethics School.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Lionel Lon Burns, Jr., Louisiana Bar Roll number 25352, be and he hereby is suspended from the practice of law for a period of one year. It is further ordered that respondent attend and successfully complete the next available session of the Louisiana State Bar Association's Ethics School. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

Hughes, J., dissenting.

Respectfully, I would impose only a six month suspension.

GENOVESE, J., dissents and would order a suspension from the practice of law for one year and a day with one year probation and ethics school.

      The formal charges against respondent originally consisted of two counts of misconduct. The ODC informed the court at oral argument that it has abandoned Count II of the formal charges. Considering the ODC's representation, we will not discuss this count further.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE EX REL. Zzeundre Babbinbenell JACOBS v. STATE of Louisiana
    No. 2017-KH-0681
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES
   PER CURIAM:

Writ granted in part; otherwise denied. As the custodian of court records, the district court is ordered to provide relator with an estimate of the costs of reproducing public records relator has requested and to which he is entitled. La. Const. art. XII, § 3 ; R.S. 44:31 ; R.S. 44:31.1 ; State ex rel. Leonard v. State , 96-1889 (La. 6/13/97), 695 So.2d 1325 ; see also State ex rel. Level v. State , 99-2266 (La. 12/17/99), 751 So.2d 869 ; cf. Range v. Moreau , 96-1607 (La. 9/3/96), 678 So.2d 537.


text:
    STATE EX REL. Larry Richard BROWN v. STATE of Louisiana
    No. 2017-JH-0676
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE SIXTH JUDICIAL DISTRICT COURT, PARISH OF EAST CARROLL
   PER CURIAM:

Writ granted in part; otherwise denied. The district attorney is ordered to provide relator with an estimate of the costs of reproducing public records relator has requested and to which relator is entitled. La. Const. art. XII § 3 ; R.S. 44:31 ; R.S. 44:31.1 ; State ex rel. Leonard v. State , 96-1889 (La. 6/13/97), 695 So.2d 1325 ; see also State ex rel. Level v. State , 99-2266 (La. 12/17/99), 751 So.2d 869 ; cf. Range v. Moreau , 96-1607 (La. 9/3/96), 678 So.2d 537. In all other respects, the writ is denied.


text:
    STATE EX REL. Kevin ROMERO v. STATE of Louisiana
    No. 2017-KH-0674
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Garreth J. GREEN, Jr. v. STATE of Louisiana
    No. 2017-KH-0680
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition, his sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172. As to his remaining claim, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Wilfred GUY v. STATE of Louisiana
    No. 2017-KH-0663
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated several applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Carl PAYNE v. STATE of Louisiana
    No. 2017-KH-0612
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated two applications for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Henry Rondell BULLARD v. STATE of Louisiana
    No. 2017-KH-0535
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition, relator fails to show that the state withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). As to his remaining claim, relator fails to satisfy his burden of proof. La.C.Cr.P. art. 930.2

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.

CRICHTON, J., recused.


text:
    STATE EX REL. Christopher ARNOLD v. STATE of Louisiana
    No. 2017-KH-0315
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   PER CURIAM:

Denied. Relator fails to show that the state withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In addition, relator further fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

WEIMER, J., recused.


text:
    STATE EX REL. Carter Vincent ANDERSON v. STATE of Louisiana
    No. 2016-KH-2137
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Terry A. JONES v. STATE of Louisiana
    No. 2017-KH-0362
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY
   PER CURIAM:

Denied in part; granted in part. With respect to the portion of the application related to 22nd JDC No. 460533, relator's unconditional guilty plea knowingly and voluntarily waived all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. See State v. McKinney , 406 So.2d 160, 161 (La. 1981) ; State v. Crosby , 338 So.2d 584, 586 (La. 1976). Therefore, this portion of his application is denied.

With respect to the portion of the application seeking mandamus related to 22nd JDC No. 455616, relator's application is granted in part for the sole purpose of transferring the matter to the Court of Appeal, First Circuit, for filing and consideration.


text:
    STATE EX REL. Travis Montrell GRIFFIN v. STATE of Louisiana
    No. 2017-KH-0313
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Clyde E. SMITH v. STATE of Louisiana
    No. 2017-KH-0682
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

WEIMER, J., recused.


text:
    STATE EX REL. Jonathan YORK v. STATE of Louisiana
    No. 2017-KH-0389
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Donald J. STELLY v. STATE of Louisiana
    No. 17-KH-2123
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE THIRTEENTH JUDICIAL DISTRICT COURT, PARISH OF EVANGELINE
   PER CURIAM:

Writ granted in part; otherwise denied. The district court is ordered to provide relator with an estimate of the costs of reproducing public records relator has requested and to which relator is entitled. La. Const. art. XII, § 3 ; R.S. 44:31 ; R.S. 44:31.1 ; State ex rel. Leonard v. State , 96-1889 (La. 6/13/97), 695 So.2d 1325 ; State ex rel. Level v. State , 99-2266 (La. 12/17/99), 751 So.2d 869 ;

Range v. Moreau , 96-1607 (La. 9/3/96), 678 So.2d 537. In all other respects, the application is denied.


text:
    STATE EX REL. Siwel PORTER a/k/a Larron Lewis v. STATE of Louisiana
    No. 17-KH-0578
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.


text:
    STATE EX REL. Glendell CASTON v. STATE of Louisiana
    No. 17-KH-0364
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. Relator's sentencing claims are not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 2009-2397 (La. 10/15/10), 45 So.3d 1030. In addition, relator filed his time computation claim in the incorrect venue. R.S. 15:571.15. As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Curtis A. KEIL v. STATE of Louisiana
    No. 17-KH-0312
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF WASHINGTON
   PER CURIAM:

Denied. Relator fails to show that he received ineffective assistance of counsel under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to carry his post-conviction burden of proof. La.C.Cr.P. art. 930.2. Additionally, the remaining claims are repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Darrell JAMES v. STATE of Louisiana
    No. 2017-KH-0140
    Supreme Court of Louisiana.
    August 3, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. Relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


author: GUIDRY, J., recused.

text:
    Billy Joseph NORTH v. Melinda DOUCET and Jon Gegenheimer, in His Official Capacity as Clerk of Court for the Parish of Jefferson, State of Louisiana
    NO. 2018-C-1294
    Supreme Court of Louisiana.
    August 3, 2018
    Denied.
   GUIDRY, J., recused.


text:
    Preston G. DEMOUCHETTE, Jr. v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
    NO. 2017-CI-0616
    Supreme Court of Louisiana.
    August 3, 2018
    Denied.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Derrick Lenner CALDWELL
    NO. 2018-KH-0599
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).
   CRICHTON, J., recused.


text:
    STATE EX REL. Alan LANCASTER v. STATE of Louisiana
    NO. 2017-KH-0586
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Ronald Earl WILLIAMS v. STATE of Louisiana
    NO. 2017-KH-0686
    Supreme Court of Louisiana.
    August 3, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Williams v. State, 15-1187 (La. 5/20/16), 191 So.3d 1016.
   CRICHTON, J., recused.


text:
    Wilfred Joseph GOODIE v. STATE of Louisiana
    NO. 2018-KH-0596
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Carlton TAYLOR, Jr. v. STATE of Louisiana
    NO. 2017-KH-0687
    Supreme Court of Louisiana.
    August 3, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Taylor v. State, 15-0399 (La. 11/30/15), 182 So.3d 42.


text:
    STATE EX REL. Lorenzo TAYLOR v. STATE of Louisiana
    NO. 2017-KH-0608
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. See La.S.Ct.R. X § 4; La.S.Ct.R. X § 5(a).


text:
    STATE of Louisiana v. Richard Nathaniel MILLER
    NO. 2018-KH-0623
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Walter REED v. STATE of Louisiana
    NO. 2017-KH-0947
    Supreme Court of Louisiana.
    August 3, 2018
    Denied; moot. See R.S. 15:574.4(H).


text:
    STATE of Louisiana v. Chester BARBER
    NO. 2018-KH-0526
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Steven Ray KILLINGSWORTH
    NO. 2018-KH-0571
    Supreme Court of Louisiana.
    August 3, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE EX REL. Dale Henry NACHTIGAL v. STATE of Louisiana
    NO. 2017-KH-0903
    Supreme Court of Louisiana.
    August 3, 2018
    Denied.
    HUGHES, J., would grant to remand to the district court for a specific ruling.


author: HUGHES, J., recused.

text:
    STATE EX REL. Joseph GRAY v. STATE of Louisiana
    NO. 2017-KH-0717
    Supreme Court of Louisiana.
    August 3, 2018
    Denied. Relator has previously exhausted his right to state collateral review. State ex rel. Gray v. State, 14-2659 (La. 10/23/15), 177 So.3d 333.
   HUGHES, J., recused.


text:
    STATE EX. REL. Nivaldo M. BUENO v. STATE of Louisiana
    NO. 2017-KH-0774
    Supreme Court of Louisiana.
    August 3, 2018
    Denied.


author: THERIOT, J.

text:
    STATE of Louisiana v. Brady T. FLYNN
    NO. 2017 CA 1327
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 11, 2018 Rehearing Denied July 11, 2018
    Jerry Fontenot, Covington, Louisiana, Counsel for Appellant, Brady T. Flynn
    Warren L. Montgomery, District Attorney, Matthew Caplan, Assistant District Attorney, Covington, Louisiana, Counsel for Appellee, State of Louisiana
    Adrienne E. Aucoin, Baton Rouge, Louisiana, Counsel for Appellee, State of Louisiana, through the Department of Public Safety and Corrections, Public Safety Services, Office of State Police
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   THERIOT, J.

The appellant, Brady T. Flynn, appeals the judgment of the Twenty-Second Judicial District Court denying his motion to expunge his criminal record. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The facts of the instant case are not in dispute. Mr. Flynn was arrested and pled guilty to possession with intent to distribute marijuana. Upon pleading guilty on September 10, 2012, Mr. Flynn was sentenced to five (5) years at hard labor with the Louisiana Department of Public Safety and Corrections (LDPSC). The sentence was suspended and the trial court placed Mr. Flynn on probation for five (5) years under the supervision of LDPSC. On July 5, 2016, the sentence was imposed pursuant to La. C.Cr.P. art. 881.1. Mr. Flynn filed a motion to terminate his probation and amend his sentence to add the benefits of La. C.Cr.P. art. 893. On July 28, 2016, the trial court granted the motion, terminated Mr. Flynn's probation as satisfied, and his sentence was amended to add the "benefits" of La. C.Cr.P. art. 893.

On August 16, 2016, Mr. Flynn filed a motion for expungement, and a motion to set aside the conviction and dismiss the prosecution on August 18, 2016. The state filed an opposition to the motion to set aside the conviction and dismiss the prosecution on August 24, 2016. Both the St. Tammany Parish District Attorney's Office and LDPSC, through the Office of State Police, filed affidavits in response to the opposition, both requesting a contradictory hearing. On September 29, 2016, after a bench discussion with the parties, the trial court granted the motion to set aside the conviction and dismiss the prosecution, subject to La. C.Cr.P. art. 893.

An objection to the motion to expunge was filed December 5, 2016 by LDPSC. Following a hearing, the trial court denied the motion to expunge, stating in open court:

I do not believe that I'm legally authorized, in my reading of [ article] 893 and [a]rticle 978 of the [Louisiana] Code of Criminal Procedure, to grant the expungement. The [c]ourt notes that both [LPDSC] and the DA offices have opposed.

Mr. Flynn filed for a supervisory writ application with this Court on April 4, 2017. We denied the writ because it did not contain a copy of a signed written judgment reflecting the trial court's ruling. We further stated that the judgment would be final and appealable once the judgment was reduced to writing and signed. A final judgment denying the motion to expunge was signed on July 6, 2017. Mr. Flynn has appropriately appealed this judgment, the sole assignment of error being that the trial court erred in denying his motion to expunge.

DISCUSSION

Only certain specified criminal arrest and conviction records may be expunged. Criminal records that do not meet the particular circumstances described under the applicable law are not eligible for expungement. Therefore, we must determine whether Mr. Flynn's conviction of a felony offense, which was dismissed under the authority of La. C.Cr.P. art. 893, meets any of the criteria for expungement. See State v. Gerchow, 2009-1055 (La. App. 1 Cir. 3/11/10), 36 So.3d 304, 305-306.

Louisiana Code of Criminal Procedure article 893 provides guidelines for both suspension and deferment of sentences. Generally, only deferment of sentence allows the possibility of a subsequent expungement of a criminal record. Paragraph (E) of La. C.Cr.P. art. 893 states:

(1)(a) When it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the imposition of the sentence and place the defendant on probation under the supervision of the division of probation and parole.
(b) The court shall not defer a sentence under this provision for an offense or an attempted offense that is designated in the court minutes as a crime of violence ... or that is defined as a sex offense ... involving a child under the age of seventeen years or for a violation of the Uniform Controlled Dangerous Substances Law that is punishable by a term of imprisonment of more than five years or for a violation of R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A).
(2) Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Paragraph shall occur only once with respect to any person.

Unlike the provisions of La.C.Cr.P. art. 893(A) through (D) addressing suspension of sentence, Paragraph (E) allows a sentencing court to defer the imposition of sentence and expressly permit later dismissal of the prosecution, which has "the same effect of acquittal."

State v. Taylor , 2011-0373 (La. App. 1 Cir. 3/23/12), 91 So.3d 1065, 1069. Paragraphs (A) through (D) of La. C.Cr.P. art. 893 contain no language that describes the conditions under which a suspended sentence may serve as a motion to dismiss the prosecution. See State v. Taylor , 2011-0375 (La. App. 1 Cir. 3/19/12), 2012 WL 938968 at p. 3 (unpublished opinion); See also State v. Comardelle, 2006-0251 (La. App. 5 Cir. 9/26/06), 942 So.2d 1126, 1129. Where the trial court has the authority to dismiss the prosecution after a deferral of prosecution, the trial court lacks that authority after a suspension of the sentence. Therefore, expungement is not available in the case of a suspended sentence. See Taylor (unpublished opinion), p. 3; See also State v. Oliver , 38,520 (La. App. 2 Cir. 5/12/04), 874 So.2d 365, 367-68.

Mr. Flynn pled guilty to possession with intent to distribute marijuana, a violation of La. R.S. 40:966(A). Louisiana Code of Criminal Procedure article 893(E)(1)(b) specifically prohibits deferment of sentence for a conviction under La. R.S. 40:966(A) ; nevertheless, the trial court amended Mr. Flynn's sentence to grant him the benefits of La. C.Cr.P. art. 893. Although the trial court suspended the sentence, the motion to set aside the conviction and dismiss the prosecution should not have been granted since the sentence was suspended and not deferred. See State v. Williams, 2011-0708 (La. App. 3 Cir. 2/1/12), 82 So.3d 1290, 1292. However, that motion has not been appealed. We only have the motion to expunge before us. As stated, since expungement is not available in the case of a suspended sentence, the trial court correctly denied Mr. Flynn's motion to expunge.

DECREE

The order of the Twenty-Second Judicial District Court's judgment denying the expungement of the criminal record of Brady T. Flynn is affirmed. All costs of this appeal are assessed to the appellee, Brady T. Flynn.

AFFIRMED.

McClendon, J. dissents and assigns reasons

McClendon, J., dissents.

I respectfully dissent given that the facts material to the issues before us on appeal are indistinguishable from State v. A.R.W., 17-1162 (La.App. 1 Cir. 2/16/18), 2018 WL 913688 (unpublished). Because A.R.W. has not been overruled, we are bound to follow same.

      Louisiana Code of Criminal Procedure art. 881.1 codifies the motion to reconsider sentence. The trial court imposed sentence pursuant to this article and left the court minutes "open." Mr. Flynn, however, did not file a motion to reconsider sentence once his probation was completed. Instead, he filed a motion to terminate probation and amend his sentence to add the benefits of La. C.Cr.P. art. 893. Mr. Flynn's motion makes no mention of La. C.Cr.P. art. 881.1. The trial court therefore amended its previous sentence to add the benefits of La. C.Cr. P. art. 893, but did not resentence Mr. Flynn or change the sentence from suspended to deferred. This makes the instant case distinguishable from our recent decision in State v. A.R.W., 2017-1162 (La. App. 1 Cir. 2/16/18), 242 So.3d 648, where the defendant pled guilty to possession with intent to distribute synthetic marijuana, pursuant to the provisions of La. C.Cr.P. art. 881.1. The trial court also left the court minutes open, as in the instant case. However, unlike the instant case, after the defendant had proven she had successfully completed her probation, she filed a "La. C.Cr.P. article 881.1 motion for resentencing pursuant to La. C.Cr.P. art. 893." This motion has the effective equivalence to a motion to reconsider sentence. The trial court granted the motion and resentenced the defendant pursuant to La. C.Cr.P. art. 893(E). The defendant's conviction was subsequently expunged, and this court affirmed the expungement. As stated, Mr. Flynn filed a motion to have his sentence amended, and at that time, the trial court did not amend the sentence from suspended to deferred. Since this motion is not on appeal, we decline to consider whether filing a motion to reconsider sentence would have been more appropriate.

      The pleadings in the record do not give any detail as to what specific "benefits" of La. C.Cr.P. art. 893 Mr. Flynn prayed for. However, since Mr. Flynn filed a motion for expungement pursuant to La. C.Cr.P. art. 978, he clearly desired the benefit of expunging his record, which La. C.Cr.P. art. 978 provides for when the conviction is set aside and the prosecution dismissed pursuant to La. C.Cr.P. art. 893(E).

      State of Louisiana v. Brady Flynn, 2017-0485 (unpublished writ action ), (La. App. 1 Cir. 6/16/17).

      Subparagraphs (3) and (4) of La. C.Cr.P. art. 893(E) allow for the conviction to be set aside and the prosecution dismissed, whether the sentence was deferred or suspended, when the defendant successfully completes a drug court treatment program as discussed in subparagraph (3), or the intensive incarceration program as discussed in subparagraph (4). Neither of those circumstances are applicable in the instant case.


author: HOLDRIDGE, J.

text:
    STATE of Louisiana v. Matthew MALARCHER
    2017 KA 1497
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered APRIL 13, 2018
    Hillar C. Moore, III, District Attorney, Monisa L. Thompson, Assistant District Attorney, Baton Rouge, LA, Attorneys for Appellee, State of Louisiana
    John P. Calmes, Jr., Baton Rouge, LA, Attorney for Defendant/Appellant, Matthew Malarcher
    BEFORE: HIGGINBOTHAM, HOLDRIDGE AND PENZATO, JJ.
   HOLDRIDGE, J.

The defendant, Matthew J. Malarcher, was charged by bill of information with operating a vehicle while intoxicated, fourth offense, a violation of La. R.S. 14:98.4, and pled not guilty. See also La. R.S. 14:98. After a trial by jury, the defendant was found guilty as charged. The trial court denied the defendant's motion for new trial. The trial court sentenced the defendant to eleven years imprisonment at hard labor, to be served without the benefit of probation, parole, or suspension of sentence and consecutive to any remaining balance of any sentence on a prior conviction, and a fine of five thousand dollars. See La. R.S. 14:98.4(C). The defendant now appeals, assigning error to the sufficiency of the evidence and the denial of his motion for new trial. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On March 27, 2015, at approximately 12:42 a.m., Sergeant Duke Staples and Officer Louis Perry of the Baton Rouge City Police Department (BRPD) came into contact with the defendant. While on patrol for the DWI task force, the officers travelled northbound on St. Louis Street, as the defendant was travelling westbound on Government Street. The officers made a traffic stop after observing the defendant make an illegal left turn from Government Street on to St. Louis Street, southbound. A no-left-turn sign was posted at the intersection. The defendant pulled over at a restaurant parking lot, and the officers exited their units and approached the defendant's vehicle. Sergeant Staples identified himself and informed the defendant of the reason for the traffic stop. He further advised the defendant of his Miranda rights, including the right to remain silent, that anything he stated can and will be used against him in a court of law, and of his right to an attorney and to discontinue questioning. The defendant confirmed that he understood his rights. Sergeant Staples asked the defendant for his identification, at which point he noticed a bulge in the defendant's front right pocket and what appeared to be a bottle protruding from his pocket. Sergeant Staples retrieved the bottle, a half empty pint-size bottle of Crown Royal whiskey, and gave it to Officer Perry as he continued to question the defendant. After making contact with the passenger of the vehicle, Officer Perry observed the defendant as he walked back towards his vehicle with Sergeant Staples. Sergeant Staples noted that the defendant was swaying, had an odor of an alcoholic beverage as if he had consumed alcohol, and had glassy eyes (consistent with consuming alcohol or smoking marijuana). Based on their observations, the officers decided to administer a standardized field sobriety test.

As Sergeant Staples began administering the horizontal gaze nystagmus test, he instructed Officer Perry to step behind him to observe the maximum deviation of nystagmus. The defendant was then given the instructions for the one-leg stand test. Finally, the defendant was instructed to perform a walk-and-turn test. Based on the defendant's performance on the field sobriety testing, the officers concluded that the defendant was under the influence of an alcoholic beverage, placed him under arrest, and transported him to the site of headquarters and a DWI bus. After being advised of his rights by BRPD Lieutenant Byron Fontenot, the defendant refused breathalyzer and urine sample testing.

SUFFICIENCY OF THE EVIDENCE

In a combined argument, the defendant contends that the jury erred in finding that the State proved beyond a reasonable doubt that he was under the influence of alcohol at the time of his arrest. He further contends that the trial court erred in denying his motion for new trial. Quoting State v. Hightower, 238 La. 876, 885-86, 116 So.2d 699, 703 (1959), the defendant argues that there was not a sufficient amount of circumstantial evidence to prove that he was "incapable of operating an automobile in a manner in which an ordinarily prudent and cautious man in full possession of his faculties, using reasonable care, would operate a motor vehicle under the conditions." He argues that he was driving in a safe, cautious, and prudent manner, claiming that the illegal turn was made in a safe manner and that he was not driving erratically. The defendant contends that the police officers followed him for three or four blocks after the illegal turn and did not observe any additional violations. He contends that he exited his vehicle as instructed, walked without swaying or stumbling, and spoke clearly with intact thought processing. The defendant argues that the results of the field sobriety test are invalid and should be disregarded. He contends that it was cold and windy at the time of the field sobriety test, that he was wearing short sleeves, that it was dark outside, and that Sergeant Staples' police unit spotlight was shining directly into his face. He further contends that the evidence failed to show that Sergeant Staples was properly trained or that the field sobriety test was properly administered. The defendant finally argues that Officer Fontenot's testimony that the defendant had a green tongue, implying that he had smoked marijuana, has no probative value. In that regard, he contends that Officer Fontenot had no training or qualification to render such an opinion. The defendant is not challenging his prior DWI convictions.

The defendant contends that the trial court erred in denying his motion for new trial based on arguments that the verdict is contrary to the law and the evidence, and that the ends of justice would be served by granting a new trial. La. Code Crim. P. art. 851(B)(1) & (5). However, the grant or denial of a new trial on either basis is not subject to appellate review. State v. Bartley, 329 So.2d 431, 433 (La. 1976) ; State v. Williams, 2002-0065 (La. App. 1st Cir. 6/21/02), 822 So.2d 764, 770, writ denied, 2003-0926 (La. 4/8/04), 870 So.2d 263. We note that the defendant, in essence, only challenges the sufficiency of the evidence to support his conviction. The proper procedural vehicle for raising the sufficiency of the evidence is by filing a motion for post-verdict judgment of acquittal before the trial court. See La. Code Crim. P. art. 821. Nevertheless, despite the defendant's failure to file such a motion, we will consider his claim of insufficiency of the evidence which has been briefed pursuant to a formal assignment of error. See State v. Williams, 613 So.2d 252, 255 (La. App. 1st Cir. 1992).

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV ; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La. Code Crim. P. art. 821(B) ;

State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that, in order to convict, the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987).

In order to convict a defendant of driving while intoxicated, the prosecution must prove that the defendant was operating a vehicle and that he was under the influence of alcohol or drugs. La. R.S. 14:98. In State v. Hightower, the court stated that "a person is intoxicated within the provisions of the statute when he does not have the normal use of his physical and mental faculties by reason of the use of alcoholic beverages (or narcotics), thus rendering such person incapable of operating an automobile in a manner in which an ordinarily prudent and cautious man in full possession of his faculties, using reasonable care, would operate a motor vehicle under like conditions." Hightower, 116 So.2d at 703.

It has been widely recognized that intoxication, with its attendant behavioral manifestations, is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330, 1334 (La. 1983). Some behavioral manifestations, independent of any scientific tests, are sufficient to support a charge of driving while intoxicated. State v. Pitre, 532 So.2d 424, 428 (La. App. 1st Cir. 1988), writ denied, 538 So.2d 590 (La. 1989). Behavioral manifestations, sufficient to support a charge of DWI, in the absence of a scientific test, are determined on a case-by-case basis. State v. Anderson, 2000-1737 (La. App. 1st Cir. 3/28/01), 784 So.2d 666, 676, writ denied, 2001-1558 (La. 4/19/02), 813 So.2d 421. An officer's subjective opinion that a subject failed a field sobriety test may constitute sufficient evidence of intoxication to support a DWI conviction. State v. Graves, 95-0578 (La. App. 1st Cir. 5/10/96), 675 So.2d 1141, 1146. We note that because the defendant refused to take a breath test, the legal presumption of intoxication contained in La. R.S. 14:98(A)(1)(b) is inapplicable herein.

Sergeant Staples had been working as a uniform patrol officer for twenty years and for the DWI task force for nearly three years at the time of the trial. He testified that he conducted an average of sixty to eighty DWI arrests annually. He completed academy DWI training, consisting of a forty-hour intoxilyzer course, thirty-two hours of training in standardized field sobriety testing, and in-service refresher courses. He further indicated that he had current certifications for the use of intoxilyzer machines. At the time of the offense, Officer Perry had been on the force for nine months as a BRPD uniform patrol officer and was "riding along" with Sergeant Staples, who was primarily responsible for conducting the stop. Officer Perry's training consisted of forty hours of DWI training (class room and practical) at the academy and approximately three weeks of field training before he began independently conducting DWI investigations. At the time of the offense, he had completed his training at the academy, and riding along with other more experienced officers was part of his recommended field training. As a result of his training he was certified to perform field sobriety tests and for the use of intoxilyzer machines.

In defining the horizontal gaze nystagmus test, Sergeant Staples noted that nystagmus is an involuntary jerking of the eyes and that an impaired individual may exhibit exaggerated effects. Therefore, the nystagmus test involves the use of a stimulus like a penlight to test for nystagmus, detected by the involuntary jerking of the eyes. As further described by the officers, the testing includes a check for the onset of nystagmus prior to forty-five degrees. This involves slowly moving the stimulus from the center of the subject's eye at his face to approximately forty-five degrees which is usually even with the subject's shoulder. Officer Perry observed that the defendant was unable to follow his pen during the maximum deviation. Further regarding the nystagmus test, Sergeant Staples noted that the defendant had a lack of smooth pursuit. He detected clues on both eyes during the maximum deviation and detected a total of four clues for the entire horizontal gaze nystagmus test. He noted that those four clues, the minimum required for a horizontal gaze nystagmus test, would be sufficient to make a determination of impairment.

A minimum of two additional clues were observed during the one-leg stand test. For the one-leg stand test, the defendant was instructed to stand with his feet together, place his hands by his sides, and to look down at his feet. Sergeant Staples observed the defendant for any physical disabilities or injuries and none were noted. The defendant was further instructed to lift one foot approximately six inches off of the ground and count out loud for thirty seconds while looking down. The subject is allowed to pick their foot back up and resume counting if their foot is placed down. The observable clues include swaying, using arms for balance, putting a foot down, and hopping. During this test, the defendant put his foot down twice, once at ten to twelve seconds, brought his left arm out for balance, and put his foot down again at approximately eighteen seconds, losing his balance at that point and swaying.

For the walk-and-turn test, the defendant was instructed (as also demonstrated by Sergeant Staples) to place his hands to his sides, his feet together, to lift his left foot and place it on the line in front of him, to repeat the same with his right foot, and to continue with a series of nine heel-to-toe steps. He was further instructed to turn and take small steps, to pivot to his left and come back around, and to continue with nine additional heel-to-toe steps. The defendant was informed that he could ask questions or for further demonstrations if necessary. During this test, the defendant lost his balance from the onset, turned the wrong way, and stepped out of line, using his arms for balance. Thus, another four clues were detected, well over the required two clues for the walk-and-turn test.

The officers confirmed that it was windy or breezy at the time of the incident, that Sergeant Staples was wearing a coat, and that the defendant was wearing a short sleeve shirt and jeans. However, the defendant did not make any statements of concern about the wind or indicate that it was impeding his ability to perform the tests. Sergeant Staples further confirmed that his spotlight on his unit was being used to illuminate the area. He noted that there was enough light for adequate visibility. The defendant did not make any complaints about the light or indicate that it was too bright.

After the defendant was transported to the DWI bus, Lieutenant Fontenot, the commander of the BRPD DWI task force at the time, observed him for the requisite fifteen-minute period while advising him of his rights and the consequences of refusal to submit to chemical testing. The defendant refused to take the intoxilyzer breath test, and, after initially indicating that he would submit to a urine screen, refused to provide a urine sample. However, after having been advised of his Miranda rights, the defendant answered questions posed to him by Lieutenant Fontenot. During the questioning, the defendant denied consuming alcohol, and stated that he was refusing testing because the attorney who represented him on previous DWI offenses advised him not to submit to chemical testing. Lieutenant Fontenot asked the defendant to stick his tongue out and observed that the back of the defendant's tongue was green with pronounced taste buds, which he testified indicated to him that the defendant had smoked marijuana. The defendant initially denied smoking marijuana, but then confirmed that he smoked a half a blunt of marijuana at a friend's house, and that the stop took place after he left his friend's house. The defendant did not testify at trial.

A law officer may testify as to matters within his personal knowledge acquired through experience without first being qualified as an expert. See La. Code Evid. art. 701 ; State v. Moses, 367 So.2d 800, 805 (La. 1979). The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Richardson, 459 So.2d 31, 38 (La. App. 1st Cir. 1984). The fact that the record contains evidence which conflicts with the testimony accepted by a trier of fact does not render the evidence accepted by the trier of fact insufficient. State v. Quinn, 479 So.2d 592, 596 (La. App. 1st Cir. 1985). Unless there is internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139 (La. 11/29/06), 943 So.2d 362, 369, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007). Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. Richardson, 459 So.2d at 38. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932.

After a careful review of the record, including the testimony of Officer Perry and Sergeant Staples and the dash cam video footage, we find that the evidence supports the jury's determination of guilt. The testimony of the officers supports a finding that the defendant was impaired while driving. Additionally, the defendant refused to provide breathalyzer testing and/or a urine sample. While not presumptive evidence, refusal to take a chemical test is relevant evidence in a prosecution for DWI. See La. R.S. 32:666(A)(2)(c) ; State v. Kestle, 2007-1573 (La. 12/2/08), 996 So.2d 275, 281. In reviewing the evidence, we cannot say that the trial court's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the trier of fact. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). A court of appeal impinges on a fact finder's discretion beyond the extent necessary to guarantee the fundamental protection of due process of law in accepting a hypothesis of innocence that was not unreasonably rejected by the fact finder. See State v. Mire, 2014-2295, *4 (La. 1/27/16), --- So.3d ----, ----, 2016 WL 314814 (per curiam). Viewing the evidence in the light most favorable to the prosecution, we are convinced that a rational trier of fact could have concluded that the State proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of the instant DWI offense. Due to the foregoing, the assignments of error lack merit.

CONCLUSION

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

CONVICTION AND SENTENCE AFFIRMED.

      The defendant's status as a fourth or subsequent offender was based on the following predicate convictions: a DWI (first offense) guilty plea on July 7, 2005, a DWI (third offense) guilty plea on August 2, 2011, and a DWI (fourth offense) guilty plea on August 9, 2013.

      While it was indicated in the bill of information and questioning by the State at trial that the offense occurred on March 26, 2015, according to the State's exhibits, the police encountered and stopped the defendant after midnight on March 27, 2015.

      Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

      Sergeant Staples' unit was equipped with a dash camera and the traffic stop and field sobriety testing was captured by the camera and played during the trial. While the defendant's eyes were not visible due to the camera range and lighting, and the officers briefly stood between the defendant and the camera, we find that the captured footage is consistent with the trial testimony.

      While the defendant does not appear to be challenging the admissibility of Lieutenant Fontenot's testimony regarding his observance of the defendant's tongue and/or the implication of marijuana use, out of an abundance of caution we note that the defendant did not object to the testimony at trial. Alleged irregularities or errors cannot be availed of on appeal if they are not objected to at the time of the occurrence. See La. Code Crim. P. art. 841 ; State v. Walker, 94-0587 (La. App. 1st Cir. 4/7/95), 654 So.2d 451, 453, writs denied, 95-1124 & 951125 (La. 9/22/95), 660 So.2d 470. We further note that Lieutenant Fontenot was cross-examined as to his qualifications on assessing signs of marijuana use. Moreover, as noted hereafter, the defendant did not object when Lieutenant Fontenot subsequently testified that the defendant admitted to smoking marijuana that night.