author: Judge Tiffany G. Chase

text:
    SUCCESSION OF Mary-Louise SCHELFHAUDT
    NO. 2019-CA-0129
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 8, 2019
    Betsy A. Fischer, Betsy A. Fischer LLC, 3636 South I-10 Service Road West, Suite 216, Metairie, LA 70001, COUNSEL FOR PLAINTIFF/APPELLEE
    Aaron D. Beyt, Beyt & Beyt, PLC, 700 East University Avenue, Lafayette, LA 70503, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

Appellants, Marie P. Schelfhaudt, Renée M. Means, and Amy E. Meunier (collectively the "Schelfhaudt Heirs"), appeal the trial court's October 15, 2018 judgment assigning sole liability of a home mortgage debt to the decedent's estate. For the reasons that follow, the judgment of the trial court is affirmed.

FACTUAL AND PROCEDURAL HISTORY

The facts of this case are not in dispute. Mary-Louise Schelfhaudt (hereinafter "Ms. Schelfhaudt") died intestate on June 9, 2017. Relevant to this appeal is the primary asset of Ms. Schelfhaudt's succession, a house on Royal Street in the Bywater neighborhood of New Orleans (hereinafter "the House"). Ms. Schelfhaudt purchased the House on July 30, 1999, and lived there together with appellee, David Stephens (hereinafter "Mr. Stephens"), whom she was in a relationship with for thirty years before her death. An authentic act was executed on October 23, 2001, whereby Ms. Schelfhaudt donated a one-half interest in the House to Mr. Stephens subject to a mortgage in favor of Countrywide Home Loans, Inc.

On December 11, 2014, the home was refinanced by USAA Federal Savings Bank (hereinafter "USAA"). Ms. Schelfhaudt executed a note in favor of USAA promising to repay the sum of $ 143,000 over a period of thirty years at a rate of 3.750% interest per annum (hereinafter "the Note"). Mr. Stephens did not sign the Note. Contemporaneously, a mortgage was executed with USAA encumbering the House (hereinafter "the Mortgage"). Both Ms. Schelfhaudt and Mr. Stephens are listed as "Borrowers" in the Mortgage, and both signed the Mortgage. The Mortgage enumerates a series of covenants wherein the Borrowers agree to various provisions specified in individual sections. Section 35 of the Mortgage, in relevant part, provides:

Each Borrower covenants and agrees that Borrower's obligations and liabilities under this Security Instrument and under the Note shall be joint, several and solidary with all other Borrowers and with each guarantor of the Note (if applicable).

It is the contention of the Schelfhaudt Heirs that this language included in the Mortgage makes Mr. Stephens liable to pay the obligation on the Note.

After Ms. Schelfhaudt's death, Mr. Stephens filed a petition appointing himself independent administrator of her succession. The order appointing Mr. Stephens as administrator was signed by the trial court on November 6, 2017. On December 1, 2017, the Schelfhaudt Heirs filed a motion to remove Mr. Stephens as independent administrator, as they did not consent to his initial appointment. The Schelfhaudt Heirs also requested Mr. Stephens provide an accounting of his activities as administrator. The matter was scheduled for a contradictory hearing on March 9, 2018, wherein the trial court granted the motion, removing Mr. Stephens as administrator and further ordering him to provide the requested accounting. As Mr. Stephens did not timely file his accounting, the Schelfhaudt Heirs filed motions for contempt and to compel discovery.

On May 7, 2018, Mr. Stephens filed his final accounting and requested it be homologated. The accounting listed, among other assets, Ms. Schelfhaudt's undivided one-half interest in the House. It also listed the full amount of the remaining $ 131,885.64 owed on the Note as a debt of the decedent. The Schelfhaudt Heirs filed an opposition contesting the allocation of this debt.

A hearing on the collective issues before the trial court was held on September 18, 2018. Ruling from the bench, and pertinent to this appeal, the trial court held the Mortgage did not obligate Mr. Stephens to pay the debt on the Note and that Ms. Schelfhaudt's succession was solely liable for the total amount owed. The judgment was reduced to writing and signed on October 15, 2018. From this judgment, the Schelfhaudt Heirs appeal.

STANDARD OF REVIEW

The interpretation of a contract is a question of law subject to a de novo standard of review. ETI, Inc. v. Buck Steel, Inc. , 2016-0602, p. 4 (La.App. 4 Cir. 2/1/17), 211 So.3d 439, 442. When appellate review is based upon an examination of a contract on its face, the question is whether the trial court was legally correct or legally incorrect. New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey , 2009-1433, p. 9 (La.App. 4 Cir. 5/26/10), 40 So.3d 394, 401 (citing Clinkscales v. Columns Rehabilitation and Retirement Center , 2008-1312, p. 3 (La.App. 3 Cir. 4/1/09), 6 So.3d 1033, 1035-36 ).

DISCUSSION

The issue on appeal is whether the debt on the Note secured by the Mortgage should be assigned solely to the Schelfhaudt Heirs.

A mortgage is a nonpossessory right created over property to secure the performance of an obligation. La. C.C. art. 3278. It is an accessory obligation that creates a real right to cause the encumbered property to be seized and sold and to have the proceeds applied toward the satisfaction of the primary obligation. La. C.C. arts. 3279 and 3282. In order for the House to serve as security for the Note, Mr. Stephens, as owner of an undivided one-half interest, was required to sign the Mortgage. See La. C.C. arts. 805, 3290, and 3295. Mr. Stephens, relying on La. R.S. 10:3-401, argues that because he did not sign the Note, he did not undertake the obligation to pay it. He contends that his signature on the Mortgage only represents his agreement to provide the House as security for the debt on the Note. The Schelfhaudt Heirs counter that language contained within Section 35 of the Mortgage operates to hold Mr. Stephens solidarily liable on the Note.

An obligation is solidary when each obligor is liable for the whole performance. La. C.C. art. 1794. Solidarity of obligation shall not be presumed and only arises from a clear expression from the intent of the parties. La. C.C. art. 1796. Security devices, such as the Mortgage, should be strictly construed. Ocwen Loan Servicing, LLC v. Porter , 2018-0187, p. 5 (La.App. 4 Cir. 5/23/18), 248 So.3d 491, 496 (citing Durham v. First Guar. Bank of Hammond , 331 So.2d 563, 565 (La.App. 1 Cir. 1976) (citing Thrift Funds Canal, Inc. v. Foy , 242 So.2d 253, 256 (La.App. 4th Cir. 1970) )). A mortgage is an accessory contract made to provide security for the performance of a principal contract. La. C.C. art. 1913. Interpretation of the language in the Mortgage requires us to determine the intent of the parties. See La. C.C. art. 2045. The individual provisions of the Mortgage must be interpreted in light of each other such that each is given meaning as suggested by the document as a whole. La. C.C. art. 2050. Under the foregoing legal and factual framework, we examine the language of Section 35 of the Mortgage.

Contrary to the contention of the Heirs, it is unclear that Section 35 obligates Mr. Stephens to pay the debt on the Note. The relevant language in Section 35 dictates that Mr. Stephens (defined as a "Borrower" in the Mortgage) agrees that his "obligations and liabilities under [the Mortgage] and under the Note shall be joint, several, and solidary with all other Borrowers and with each guarantor of the Note." The Mortgage defines a "Borrower" as "the mortgagor under this Security Instrument." It further defines the Note as "the promissory note signed by Borrower and dated December 11, 2014." Consequently, in defining the "Loan" as "the debt evidenced by the Note," the Mortgage requires that one must look to the Note to determine who is liable for the debt. Mr. Stephens has no obligations or liabilities under the Note. He did not sign the Note and his name does not appear anywhere on that document. Considering the Mortgage in the context of an accessory contract, the absence of Mr. Stephens' signature on the principal contract of the Note indicates he was not intended to be personally bound to Ms. Schelfhaudt's debt.

An examination of Section 35 as a whole suggests it is intended to address the intricacies of Louisiana law regarding solidary obligations - in the event multiple persons signed the Note - and related issues of community property. We do not interpret it to hold Mr. Stephens liable for the principal debt owed by Ms. Schelfhaudt. The Schelfhaudt Heirs acknowledge, but discount as inoperable, Section 13 of the Mortgage that is "modified" by Section 35. Section 13 provides in relevant part:

Borrower covenants and agrees that Borrower's obligations and liability shall be joint and several. However, any Borrower who co-signs this Security Instrument but does not execute the Note (a "co-signer"): (a) is co-signing this Security Instrument only to mortgage, grant and convey the co-signer's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument...

Section 35 does not specify that Section 13 is repealed or replaced in its entirety. Further, Section 34 provides the "Borrower" warrants they have full ownership of the property being mortgaged. Thus, pursuant to La. C.C. art. 805, Mr. Stephens was required to sign the Mortgage as co-owner of the House. Similarly, Section 35 refers to the requirement of a spouse to do the same in the event the property is community-owned. These Sections, read in pari materia , reinforce the principal cause of a mortgage - to pledge one's ownership interest in real property to secure a separate obligation.

We find that Section 35 of the Mortgage, when viewed in context of the document as a whole, does not create an additional obligation that makes Mr. Stephens liable for the debt on the Note. Doubtful provisions must be interpreted in light of the nature of the contract. La. C.C. art. 2053. In signing the Mortgage, Mr. Stephens did nothing more than what is traditionally understood to be the intended purpose of a mortgage: agree to provide his ownership interest in the House as security in the event Ms. Schelfhaudt did not pay her debt on the Note.

DECREE

For the foregoing reasons we affirm the October 15, 2018 judgment of the trial court decreeing that Ms. Schelfhaudt's succession is solely liable for the debt on the Note.

AFFIRMED

      Renée Means is party to this suit both individually and in her capacity as independent administratrix of Ms. Schelfhaudt's succession.

      The Countrywide mortgage was executed on the same day as the donation. Mr. Stephens was not a signatory to the 2001 note or mortgage.

      The sections are divided into two groups. Sections 1 through 21 are termed "universal covenants." Sections 22 through 36 are termed "non-universal covenants" and focus specifically on the laws of Louisiana.

      The remainder of Section 35 discusses the applicability of the Note and Mortgage with regard to community property. It provides:
      However, to the extent that the Property is community-owned immovable (real) property, and Borrower's spouse co-signs this Security Instrument, but does not co-sign the Note, Borrower's spouse is co-signing this Security Instrument for purpose of: (a) concurring with the granting of this Security Instrument on the community-owned Property (to the extent required under Civil Code Article 2347 ), without obligating the separate property of Borrower's spouse; and (b) waiving any homestead rights to which Borrower's spouse may be entitled under Applicable Law. Notwithstanding the fact that Borrower's spouse did not co-sign the Note, and further notwithstanding the language of Section 13 of this Security Instrument, Borrower's spouse is obligated for payment of the Note and all other sums secured by this Security Instrument to the extent of the spouse's community property interest, and to the extent that the Note is a community obligation.

      In the same judgment, the trial court also denied the Schelfhaudt's Heirs' motion for contempt, found the discovery requests to be fully satisfied rendering the motion to compel moot, and granted Mr. Stephens' request to homologate the final accounting.

      Section 8 of the Note is entitled "Obligations of Persons under this Note." It provides:
      If more than one person signs this Note, each is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things.


source: Caselaw Access Project

author: JUDGE SANDRA CABRINA JENKINS

license: Public Domain

text:
    STATE of Louisiana v. Dwayne SPARKS
    NO. 2018-KA-1013
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 8, 2019
    Leon Cannizzaro, District Attorney, Donna Andrieu, Assistant District Attorney, Irena Zajickova, Assistant District Attorney, Scott G. Vincent, Assistant District Attorney, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA
    Jack Muse, ORLEANS PUBLIC DEFENDERS, 2601 Tulane Avenue, Suite 700, New Orleans, LA 70119, COUNSEL FOR APPELLANT/DEFENDANT
    (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown )
   JUDGE SANDRA CABRINA JENKINS

Pursuant to State v. Crosby , 338 So.2d 584 (La. 1976), defendant, Dwayne Sparks, pled guilty to possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1, while reserving his right to appeal the trial court's denial of his motion to quash the bill of information. In this appeal, defendant argues that the trial court erred in denying his motion to quash the bill of information because he was not convicted of the predicate felony alleged in the bill of information, which is an essential element of the charged offense. Thus, defendant argues the bill of information fails to charge an offense punishable under a valid statute and, accordingly, must be quashed.

Upon review of the record and in light of applicable law, we agree. We find that defendant's prior guilty plea, entered pursuant to Georgia's First Offender Act, does not constitute a conviction for purposes of establishing a violation of La. R.S. 14:95.1, as charged in the bill of information in the instant case. Thus, we find the trial court erred as a matter of law in denying defendant's motion to quash the bill of information. For the reasons set forth in further detail below, we reverse the trial court's ruling, grant defendant's motion to quash the bill of information, and vacate and set aside his conviction.

STATEMENT OF THE CASE

On March 27, 2017, defendant entered a guilty plea to simple robbery in Case Number 14-CR-3008, in Superior Court of Dekalb County, Georgia, under the provisions of Georgia's First Offender Act, Ga. Code Ann. § 42-8-60. In accordance with the First Offender Act, the trial court withheld an adjudication of guilt and sentenced defendant to three years on probation. Subsequently, defendant's probation was transferred to the State of Louisiana.

On July 26, 2018, the State filed a bill of information charging defendant with possession of a firearm by a felon, a violation of La. R.S. 14:95.1, "having been previously convicted of a felony, namely simple robbery in Case Number 14-CR-3008 in Dekalb County, GA, Superior Court." On that same date, defendant filed a motion to quash the bill of information. Subsequently, defendant appeared for arraignment and entered a plea of not guilty.

On August 2, 2018, the trial court denied defendant's motion to quash, and, at that time, defendant changed his plea to guilty while reserving his right to appellate review of the trial court's ruling on his motion to quash, pursuant to Crosby , supra. Defendant waived sentencing delays, and the trial court sentenced defendant to five years at hard labor.

Defendant initially filed an application for supervisory writs to this Court, seeking review of the trial court's denial of his motion to quash. However, finding that defendant's guilty plea under Crosby was an appealable judgment, this Court denied defendant's writ. State v. Sparks , unpub., 18-0772 (La. App. 4 Cir. 9/26/18). Defendant then filed a motion for an out-of-time appeal, which the trial court granted. This appeal followed.

DISCUSSION

In his sole assignment of error, defendant argues that the trial court erred in denying his motion to quash the bill of information because it fails to charge an offense punishable under a valid statute. See La. C.Cr.P. art. 532(1). Defendant asserts that he was not convicted of the predicate felony alleged in the bill of information, which is essential to establish a violation of the charged offense, La. R.S. 14:95.1, possession of a firearm by a convicted felon.

When a defendant urges a motion to quash the bill of information on the grounds that it fails to charge an offense punishable under a valid statute, the trial court must accept as true the facts contained in the bill of information, and determine as a matter of law and from the face of the pleadings whether a crime has been charged. State v. Landry , 13-1030, p. 4 (La. App. 4 Cir. 5/7/14), 144 So.3d 1078, 1081 (quoting State v. Byrd , 96-2302, p. 18 (La. 3/13/98), 708 So.2d 401, 411 ). If the bill of information fails to charge an offense punishable under a valid statute, then it is defective and may be declared invalid by the trial court's ruling on the motion to quash. Landry , 13-1030, p. 4, 144 So.3d at 1081. In ruling on a motion to quash the bill of information, "the trial court is not authorized to make any factual determinations;" the trial court's determination is solely a question of law. Id. at p. 5, 144 So.3d at 1082. Thus, we review the trial court's ruling under the de novo standard of review. Id.

In the instant case, the bill of information charged defendant with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1, which provided in pertinent part as follows:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) ... or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.

The essential elements to establish a violation of La. R.S. 14:95.1 are as follows: (1) defendant possessed a firearm; (2) defendant has been convicted previously of a crime of violence or other enumerated felony; (3) defendant possessed the firearm within ten years of the prior conviction; and (4) defendant had the general intent to commit the offense. State v. Contreras , 17-0735, p. 9 (La. App. 4 Cir. 5/30/18), 247 So.3d 858, 867 (citing State v. Fields , 12-0674, p. 6 (La. App. 4 Cir. 6/19/13), 120 So.3d 309, 315 ).

The bill of information charging defendant with La. R.S. 14:95.1, alleges that he was previously convicted of simple robbery in Case No. 14-CR-3008, in Superior Court of Dekalb County, Georgia. Defendant admits that he was arrested and charged in that case; and he does not dispute that a conviction for that robbery offense would qualify as "a crime of violence as defined in La. R.S. 14:2(B) which is a felony." Defendant asserts, however, that he entered a guilty plea in that case under the provisions of Georgia's First Offender Act, Ga. Code Ann. § 42-8-60, which withholds an adjudication of guilt during the period of probation; and, because his probation was not revoked and an adjudication of guilt was not entered, defendant asserts that he does not have a prior felony conviction for simple robbery in Case No. 14-CR-3008. Defendant therefore argues that his guilty plea from Georgia may not be used as a prior felony conviction for purposes of charging La. R.S. 14:95.1, and that, consequently, the bill of information fails to charge an offense punishable under a valid statute.

As the plain language of La. R.S. 14:95.1 indicates, the proscription against possession of a firearm applies to any person who has been "convicted" of certain felonies. As defined in La. C.Cr.P. art. 934(3), " 'convicted' means adjudicated guilty after a plea or after trial on the merits." Thus, for the bill of information to charge the offense under La. R.S. 14:95.1, defendant must have been adjudicated guilty, and thus convicted, of the alleged predicate felony, under the laws of the state in which the predicate felony was allegedly committed. See State v. Jones , 45,476, p. 14 (La. App. 2 Cir. 9/22/10), 47 So.3d 1096, 1104-05 ("Because the defendant was not 'convicted' of possession of cocaine [an enumerated qualifying felony under La. R.S. 14:95.1 ] under Florida law, that charge may not be used as a predicate offense for the charge of possession of a firearm by a convicted felon in Louisiana.").

The disposition in Case No. 14-CR-3008 in the Superior Court of Dekalb County, Georgia, reflects that defendant pled guilty to simple robbery under the provisions of Ga. Code Ann. § 42-8-60, and was "sentenced under First Offender/Conditional Discharge" to three years on probation.

Ga. Code Ann. § 42-8-60(a) (emphasis added), Georgia's First Offender Act provides in pertinent part:

When a defendant has not been previously convicted of a felony, the court may, upon a guilty verdict or plea of guilty or nolo contendere and before an adjudication of guilt , without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and:
(1) Place the defendant on probation; or
(2) Sentence the defendant to a term of confinement.

Thus, when a Georgia court sentences a defendant under the provisions of Ga. Code Ann. § 42-8-60(a), an adjudication of guilt is deferred during the probation or sentence. See Cook v. State , 338 Ga.App. 489, 790 S.E.2d 283, 290 (2016) ("[T]he case has, in effect, been suspended during the period of probation ...") (quoting Davis v. State , 273 Ga. 14, 537 S.E.2d 663, 665 (2000) (internal quotations marks omitted). The Act then provides:

The court may enter an adjudication of guilt and proceed to sentence the defendant as otherwise provided by law when the:
(1) Defendant violates the terms of his or her first offender probation;
(2) Defendant is convicted for another crime during the period of his or her first offender sentence; or
(3) Court determines that the defendant is or was not eligible for first offender sentencing under this article.

Ga. Code Ann. § 42-8-60(c). (emphasis added). The Act further provides that a defendant sentenced to probation pursuant to the statute shall be "discharged as a matter of law" as soon as the defendant completes the terms of probation. Ga. Code Ann. § 42-8-60(e)(1). Most notably, the Act specifically states that any individual who is sentenced pursuant to § 42-8-60(a) "shall not be deemed to have been convicted during such sentence." Ga. Code Ann. § 42-8-65(c)(1).

In Davis , the Georgia Supreme Court examined the statutory scheme of Georgia's First Offender Act to determine whether a defendant on first offender probation who had not been discharged or revoked could be sentenced as a recidivist after a subsequent conviction for a violent felony. 273 Ga. 14, 537 S.E.2d 663. In that case, Davis had been sentenced under the First Offender Act to ten years on probation for armed robbery and possession of a firearm. During the period of his first offender probation, Davis was charged and convicted on separate charges of armed robbery and possession of a firearm. Based upon his prior first offender guilty plea, the trial court sentenced Davis to life without parole under the provisions of Ga. Code Ann. § 17-10-7(b)(2), which provided in pertinent part:

[A]ny person who has been convicted of a serious violent felony in this state ... and who after such first conviction subsequently commits and is convicted of a serious violent felony for which such person is not sentenced to death shall be sentenced to imprisonment for life without parole.

On appeal, Davis argued that his first offender guilty plea could not serve as a basis for sentencing him as a recidivist under Ga. Code Ann. § 17-10-7(b)(2) because he did not stand "convicted" on those prior charges. The Georgia Supreme Court agreed, explaining as follows:

A first offender's guilty plea does not constitute a "conviction" as that term is defined in the Criminal Code of Georgia. ... Under the first offender statute, until an adjudication of guilt is entered, there is no conviction.
...
The statutory scheme grants first offender probation status and eventually the probation is either revoked or it is discharged; unless it is revoked, there is no conviction. Revocation of the first offender probation status is necessary to constitute a 'conviction' under [Ga. Code Ann.] § 17-10-7(b)(2), and that did not occur here. The subsequent conviction does not necessarily result in a revocation of Davis's probation status. Upon a violation of a first offender's terms of probation, the trial court "may" enter an adjudication of guilt; it is not obliged to do so. In fact, despite the later conviction, failure of the State to initiate any revocation proceedings against Davis, and failure of the court to revoke the probation, would result in Davis's completion of the probationary period, and his discharge from probation.

Davis , 537 S.E.2d at 665 (internal citations omitted) (emphasis added). Finding his first offender probation had not been revoked, the Georgia Supreme Court held that Davis had not been convicted of the prior charges and that the trial court erred in sentencing defendant as a recidivist under the provisions of Ga. Code Ann. § 17-10-7(b)(2). Id.

As explained in Davis , under Georgia law, a defendant who pleads guilty and is sentenced under the provisions of Georgia's First Offender Act is not convicted of that offense unless and until the court that imposed the sentence revokes defendant's first offender status and enters an adjudication of guilt. 537 S.E.2d at 665, n. 1 ("Only a court that imposed first offender probation has authority to revoke that status; it is the only legal authority that can formally adjudicate the offender.") (quoting McKinney v. State , 240 Ga.App. 812, 525 S.E.2d 395, 397 (1999) ); see also Cook v. State , 338 Ga.App. 489, 790 S.E.2d 283, 290-91 (2016) (holding that defendant could not be sentenced as a recidivist because his first offender status had not yet been revoked and he was not a convicted felon at the time he committed the subsequent felony); Gunter v. State , 182 Ga.App. 548, 356 S.E.2d 276, 277 (1987) (holding that defendant was not "convicted" as there was no adjudication of guilt following his first offender plea and thus defendant was not precluded from possessing a firearm by statute prohibiting such possession by convicted felons).

Pursuant to Georgia law, defendant was not convicted of simple robbery in Case No. 14-CR-3008, because defendant's first offender probation status was not revoked and no adjudication of guilt was entered by the Superior Court of Dekalb County, Georgia. Thus, defendant had not been convicted of the enumerated felony alleged in the bill of information charging him with possession of a firearm by a convicted felon.

As stated earlier in this opinion, to establish a violation of La. R.S. 14:95.1, the State must allege and prove that defendant has been convicted of a crime which, if committed in this state, would be one of the predicate felony offenses enumerated in La. R.S. 14:95.1. Based upon our de novo review of the record and applicable law, we find that the bill of information in this case fails to charge a violation of La. R.S. 14:95.1, because defendant was not convicted of the alleged predicate felony under Georgia law. Therefore, we find that the trial court erred as a matter of law in denying defendant's motion to quash the bill of information.

CONCLUSION

For the foregoing reasons, we reverse the trial court's ruling and grant defendant's motion to quash the bill of information. Accordingly, defendant's guilty plea, entered pursuant to Crosby , is hereby vacated and set aside.

JUDGMENT REVERSED; CONVICTION VACATED AND SET ASIDE

LEDET, J., CONCURS IN PART

LEDET, J., CONCURS IN PART

I concur in the majority's decision to vacate Mr. Sparks' conviction and to reverse the district court's judgment granting the motion to quash. Instead of granting Mr. Sparks' motion to quash, I would remand the case to the district court for further proceedings in light of our opinion.

In all other respects, I join the majority opinion.

      The signed plea/disposition explains the "First Offender/Conditional Discharge", stating as follows:
      The Defendant consenting hereto, it is the judgment of the Court that no judgment of guilt be imposed at this time but that further proceedings are deferred and the Defendant is hereby sentenced ...[.] Upon violation of the terms of probation, upon conviction for another crime during the period of probation, or upon the Court's determination that the Defendant is or was not eligible for sentencing under the First Offender Act or for Conditional Discharge, the Court may enter an adjudication of guilt and proceed to sentence the defendant to the maximum sentence as provided by law. Upon fulfillment of the terms of this sentence, or upon release of the Defendant by the Court prior to the termination of this sentence, the Defendant shall stand discharged of said offense without court adjudication of guilt and shall be completely exonerated of guilt of said offense charged.

      The facts underlying the charge against defendant are not pertinent to this appeal.

      Our review for errors patent reveals that the trial court imposed an illegally lenient sentence by omitting the requirements that defendant's sentence be served without benefit of parole, probation, or suspension of sentence, as required by La. R.S. 14:95.1. However, this sentencing error is moot in light of our decision vacating and setting aside defendant's conviction.

      La. R.S. 14:95.1 was subsequently amended and reenacted by La. Acts 2018, No. 532, § 3, effective August 1, 2018. The amended language in subsection A, which includes persons "found not guilty by reason of insanity" of one of the enumerated crimes, does not affect the outcome of this case.

      The essential elements constituting the offense of robbery in Georgia, pursuant to Ga. Code Ann. § 16-8-40, constitute the offense of simple robbery in Louisiana, pursuant to La. R.S. 14:65, which qualifies as a crime of violence under La. R.S. 14:2(B)(23).

      Ga. Code Ann. § 16-1-3(4) defines "conviction" as "a final judgment of conviction entered upon a verdict or finding of guilty of a crime or upon a plea of guilty."

      La. R.S. 14:95.1 requires an allegation of defendant's prior felony conviction in the charging instrument. See State v. Ball , 99-0428, p. 9 (La. 11/30/99), 756 So.2d 275, 280 ; see also La. C.Cr.P. art. 483.


author: GUIDRY, J.

text:
    Diane Y. DEGREE, Individually and as Wife of Jerome L. Degree, Individually and as Husband of Diane Y. Degree v. GALLIANO TRUCK PLAZA, LLP, et al.
    NUMBER 2018 CA 0663
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: January 10, 2019
    Richard A. Thalheim, Jr., Thibodaux, LA, Counsel for Plaintiffs/Appellants Diane Y. Degree and Jerome L. Degree
    George P. Hebbler, Jr., Frank A. Romeu, Jr., Devin J. Barnett, Metairie, LA, Counsel for Defendants/Apppellees Galliano Truck Plaza and Casino, LLP; Admiral Insurance Company; DBCJK, LLC; and DBCJK2, LLC
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   GUIDRY, J.

Plaintiffs, Diane Degree and Jerome Degree, appeal from a judgment of the trial court granting summary judgment in favor of defendants, Galliano Truck Plaza and Casino, LLP (Galliano), DBCJK, LLC (DBCJK), DBCJK2, LLC (DBCJK2), and Admiral Insurance Company (Admiral), and dismissing their claims against these defendants with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Galliano operates a truck stop casino in Cut Off, Louisiana. On December 6, 2014, Diane Degree was a customer/patron at the casino when an altercation occurred among three other patrons. While moving out of the way of the altercation, the heel of Degree's shoe got caught on a vinyl transition strip between the tile and carpet flooring in the casino, causing her to trip and fall.

Thereafter, Degree and her husband filed a petition for damages, naming Galliano, its members, DBCJK and DBCJK2, Admiral, and the three individuals involved in the altercation at the casino as defendants. Plaintiffs asserted that the presence of an uneven or inconsistent floor or floor surface and inadequate lighting at the casino presented an unreasonably dangerous condition, which caused her to fall and sustain injuries. Additionally, they asserted that the casino was an unsafe environment with insufficient security to restrain, prevent, or control an altercation at the casino prior to her fall.

Galliano, DBCJK, DBCJK2, and Admiral subsequently filed a motion for summary judgment, asserting that plaintiffs cannot meet their burden of establishing that the flooring and lighting at the casino were unreasonably dangerous or that the security was deficient. Particularly, defendants asserted that plaintiffs cannot establish how long the allegedly defective condition was present prior to Degree's fall, that the transition strip constituted a hazardous condition on the date Degree fell, that the transition strip was not open and obvious, and that security at the casino was inadequate.

Following a hearing on defendants' motion, the trial court signed a judgment granting the motion and dismissing plaintiffs' claims with prejudice. Plaintiffs now appeal from the trial court's judgment, asserting that the trial court erred in granting summary judgment in favor of the defendants because genuine issues of material fact exist as to whether the premises were dimly lit on the night of the accident and whether the transition strip presented an unreasonable risk of harm and was open and obvious.

DISCUSSION

Summary Judgment

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. M/V Resources LLC v. Louisiana Hardwood Products LLC, 16-0758, p. 8 (La. App. 1st Cir. 7/26/17), 225 So.3d 1104, 1109, writ denied, 17-1748 (La. 12/5/17), 231 So.3d 624. A motion for summary judgment is properly granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, and all doubt must be resolved in the opponent's favor. Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050 (per curiam).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. M/V Resources LLC, 16-0758 at p. 9, 225 So.3d at 1109. A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. C.C.P. art. 966(F).

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

In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to determine the truth of the matter but instead to determine whether there is a genuine issue of triable fact. Clark v. J-H-J Inc., 13-0432, pp. 3-4 (La. App. 1st Cir. 11/1/13), 136 So.3d 815, 817, writ denied, 13-2780 (La. 2/14/14), 132 So.3d 964. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Nash v. Rouse's Enterprises, LLC, 15-1101, p. 3 (La. App. 1st Cir. 2/26/16), 191 So.3d 599, 600-601.

Merchant Liability

Louisiana Revised Statutes 9:2800.6 sets forth the burden of proof for a plaintiff in a claim against a merchant for damages due to a fall on the premises and provides, in pertinent part:

B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

A hazardous condition is one that creates an unreasonable risk of harm to customers under the circumstances. Pena v. Delchamps, Inc., 06-0364, p. 4 (La. App. 1st Cir. 3/28/07), 960 So.2d 988, 991, writ denied, 07-0875 (La. 6/22/07), 959 So.2d 498. Merchants are not insurers of their patrons' safety, and a customer is under a duty to use ordinary care to avoid injury. Cusimano v. Wal-Mart Stores, Inc., 04-0248, p. 7 (La. App. 1st Cir. 2/11/05), 906 So.2d 484, 488. A merchant is not absolutely liable every time an accident happens. Leonard v. Wal-Mart Stores, Inc., 97-2154, p. 4 (La. App. 1st Cir. 11/6/98), 721 So.2d 1059, 1061.

In determining whether a condition is unreasonably dangerous, courts have adopted a four-part risk-utility balancing test. This test requires consideration of:

(1) the utility of the complained-of condition;
(2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition;
(3) the cost of preventing the harm; and
(4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature.

Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, pp. 9-10 (La. 2/20/04), 866 So.2d 228, 235. Simply put, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others. Reed v. Wal-Mart Stores, Inc., 97-1174, p. 4 (La. 3/4/98), 708 So.2d 362, 365.

The second prong of the risk-utility balancing test focuses on whether the defective condition is obvious and apparent, or as it has come to be commonly known, "open and obvious." Generally, a defendant does not have a duty to protect against an open and obvious hazard.

Broussard v. State ex rel. Office of State Buildings, 12-1238, p. 10 (La. 4/5/13), 113 So.3d 175, 184. In order for a defect to be open and obvious, the danger created by that defect must be apparent to all, i.e., everyone who may potentially encounter it. Broussard, 12-1238 at p. 10, 113 So.3d at 184.

In the instant case, the defendants asserted and the trial court found that the transition strip between the tile and carpet floor on which Degree tripped was open and obvious. In support of their motion, defendants submitted the deposition testimony of Degree, wherein she stated that she had been going to the casino since it opened in 2011 and considered herself a regular. Degree stated that she had never tripped on the transition strip before December 6, 2014. Furthermore, Degree acknowledged that the transition strip ran throughout the whole casino and that she did not see anything wrong with the strip, carpet, or tile floor prior to her fall. Degree also stated that while the lighting was dim inside the casino, she was able to see her feet at the time of her fall.

Defendants also submitted affidavits of Gina Broussard and Krystal Badeaux, employees of Galliano. Broussard stated that she was the general manager of the casino since 2011, and between 2011 and the summer of 2016, the flooring had not been changed. Broussard stated that Degree was the only person who reported tripping and falling at the casino between 2011 and 2016. Badeaux, who was a hostess at the casino, confirmed that Degree was the only person to have fallen at the casino. Badeaux stated that as a hostess, she walks continually throughout the casino and has never stumbled, tripped, or fallen over the transition strip, has never seen any defects or dents in the strip, and no patron or employee has ever complained about the transition strip.

Finally, defendants submitted the affidavit of Fred Vanderbrook, a professional engineer, as well as still photos from the surveillance video on the night of Degree's fall. Vanderbrook stated that he visited the site in 2016. According to Vanderbrook, the transition strip was dark in color and was adjacent to white tile and gold or patterned carpet. Vanderbrook stated that the carpet had no irregularities or seams which may have presented a tripping hazard, and there were no defects in the tile or carpet floor that would present a risk of harm to patrons. According to Vanderbrook, due to the difference in color and composition, the transition strip is open and obvious to anyone who encounters it, and the minimal height and tapered edge on each side did not present a tripping hazard.

In opposing defendants' motion, plaintiffs offered Degree's deposition testimony, wherein she admitted that she had never had problems walking over the transition strip prior to December 6, 2014, and did not know of anyone having any problems traversing that strip prior to her accident. Furthermore, Degree acknowledged that the strip was dark colored.

Additionally, Degree submitted the affidavit and report of Edward Angelloz, Jr. a licensed professional architect, who stated that the rigid vinyl transition strip and non-beveled edge created a tripping hazard. Angelloz also stated that the floor surface configuration was unreasonably dangerous for its particular application in a casino where alcohol was served and attentiveness of patrons is anticipated to be inhibited by alcohol consumption.

From our de novo review of the record, we find that the evidence offered by the defendants establishes that the transition strip in question was open and obvious. The transition strip is solid, dark material and is adjacent to light colored carpet and tile. The area where Degree fell is open, and the stark contrast in color between the transition strip and adjacent flooring is clearly obvious from the photographs. Furthermore, the evidence demonstrates that there had been no other instances of a patron tripping and falling in the casino in the five years that the casino had been in operation other than Degree's, and Degree acknowledged that she was familiar with the area, having frequented the area on a regular basis since its opening, and had not had a problem traversing the area prior to her fall. Plaintiffs failed to produce evidence creating a genuine issue that the transition strip was not open and obvious under the facts present in the instant case, and therefore, the trial court properly granted summary judgment in favor of the defendants as to plaintiffs' claim based on the unreasonably dangerous condition of the transition strip.

Furthermore, we find no error in the trial court's finding that defendants are entitled to summary judgment on plaintiffs' claim that the casino had inadequate lighting. Defendants submitted the affidavit testimony of Vanderbrook, who stated that light readings were measured throughout the casino during both daytime and nighttime hours, and these readings were within range of three to four foot candles minimum. Vanderbrook further stated that the lighting in the casino was adequate for normal movement and exceeded the Life Safety Code requirement of one foot candle applicable to exit areas during day or night conditions.

The only evidence offered by the plaintiffs to rebut that offered by defendants consisted of Degree's subjective and unquantifiable opinion that the lighting was "dim" or "poor." However, the surveillance video from the night in question demonstrates that the area was well lit, and that Degree did not have a problem maneuvering around the casino or seeing and reacting to the events in the casino on the night in question. Accordingly, we find that plaintiffs have failed to present evidence creating a genuine issue that the lighting inside the casino was insufficient, and the trial court properly granted summary judgment in favor of defendants as to this claim.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to plaintiffs, Diane Degree and Jerome Degree.

AFFIRMED.

      We note that plaintiffs have not appealed the trial courts granting of summary judgment as to their claim based on insufficient security. Accordingly, we do not address this issue on appeal.


author: MOLAISON, J.

text:
    STATE of Louisiana v. Bennie R. SPRIGGS
    NO. 18-KA-651
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Anne M. Wallis, Gretna, Jennifer C. Voss
    COUNSEL FOR DEFENDANT/APPELLANT, BENNIE R. SPRIGGS, Bruce G. Whittaker
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.
   MOLAISON, J.

Defendant, Bennie Spriggs, appeals the denial of his motion to suppress evidence following his guilty plea to drug offenses, possession of a firearm by a convicted felon and obstruction of justice with a reservation of his right to appeal the trial court's ruling on the suppression motion, pursuant to State v. Crosby , 338 So.2d 584 (La. 1976). Defendant contends the evidence was obtained unlawfully because the warrantless entry into and initial search of his residence was made by parole officers other than the officer assigned to him, contrary to law, and their visit, ostensibly to determine whether he was in compliance with the conditions of his parole, was a subterfuge for a criminal investigation.

We affirm the trial court's denial of defendant's motion to suppress, affirm his convictions and sentences, and remand the matter to the trial court to correct a discrepancy between the court minutes and the transcript as to the payment of restitution, which we noted in our review of the record for errors patent.

At the time of the parole officers' entry into defendant's apartment in June 2017, the law did not require that visits to a parolee's residence, or searches of the residence, be conducted by the parole officer assigned to the parolee. La. R.S. 15:574.4.2(A)(2)(i) ; State v. Warren , 17-1169 (La. App. 3 Cir. 2/28/18), 239 So.3d 960, 971, citing State v. Sinegal , 17-527 (La. App. 3 Cir. 12/13/17), 2017 WL 6350261 at *8, writ denied , 18-451 (La. 1/8/19), 259 So.3d 1026.

The record supports the trial court's finding that the visit to defendant's residence was a legitimate compliance check and was not a subterfuge for a criminal investigation. The evidence seized pursuant to the plain view exception to the warrant requirement, and on the basis of a search warrant issued thereafter, was lawfully obtained.

FACTUAL AND PROCEDURAL BACKGROUND

The search of defendant's apartment occurred on June 28, 2017, and resulted in defendant being charged by bill of information with possession with intent to distribute heroin (count one), possession of a firearm by a convicted felon (count two), possession with intent to distribute marijuana (count three), possession of Buprenorphine (Suboxone ) (count four), possession of Tramadol (count five), and obstruction of justice (count six), in violation of La. R.S. 40:966(A), 14:95.1, 40:966(A), 40:968(C), 40:969(C) and 14:130.1, respectively.

The hearing on the motion to suppress was held in July 2018. After the motion was denied, defendant withdrew his not guilty pleas and entered a Crosby plea of guilty as charged on all counts, reserving his right to appeal the denial of his motion to suppress.

The trial court sentenced defendant to imprisonment at hard labor for fifteen years each on counts one, two and three and imprisonment at hard labor for five years each on counts four, five and six, with the sentences on all counts to run concurrently with each other and with any other sentence he is currently serving.

Defendant was on parole at the time of these offenses, having been convicted of possession with intent to distribute marijuana, possession with intent to distribute cocaine and attempted possession of a firearm by a convicted felon in 2004. His parole supervision was transferred from East Baton Rouge Parish to Jefferson Parish in February 2017, a few months before the events in question. His assigned parole officer in Jefferson Parish, Agent Steven Becnel, had been to his apartment two or three times, during routine visits to monitor his compliance with the conditions of his parole, but Agent Becnel did not participate in the June 28 visit because he was scheduled for office duty that day. He testified that it was normal for other agents to assist an agent who is on office duty.

Parolees are required by law to refrain from engaging in criminal conduct. La. R.S. 15:574.4.2(A)(1). As a condition of parole, they agree to submit to unannounced visits from their parole officer at their residence or place of employment and to searches of their person, property, residence or vehicle when reasonable suspicion exists that they have engaged in criminal activity while on parole. § 574.4.2(A)(2)(i); State v. Bolden , 09-33 (La. App. 5 Cir. 5/12/09), 13 So.3d 1168, 1172, writ denied , 09-1317 (La. 2/5/10), 27 So.3d 297 ; State v. Wesley , 28,941 (La. App. 2 Cir. 12/13/96), 685 So.2d 1169, 1174 writ denied , 97-0279 (La. 10/10/97), 703 So.2d 603.

BURDEN OF PROOF AND STANDARD OF REVIEW

In a hearing on a motion to suppress, the defendant has the burden of proving that evidence obtained with a warrant should be suppressed, and the State has the burden of proving the admissibility of evidence seized without a warrant. La. C.Cr.P. art. 703(D) ; State v. Parnell , 07-37 (La. App. 5 Cir. 5/15/07), 960 So.2d 1091, 1097, writ denied , 07-1417 (La. 1/7/08), 973 So.2d 733.

The trial court's denial of a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Lewis , 12-902 (La. App. 5 Cir. 6/27/13), 121 So.3d 128, 134, writ denied , 13-1926 (La. 4/17/14), 138 So.3d 618.

EVIDENCE AT SUPPRESSION HEARING

On June 28, 2017, three agents with the Louisiana Department of Probation and Parole and a narcotics detective with the Jefferson Parish Sheriff's Office went to defendant's apartment in Harvey, Louisiana. This occurred within a short time after one of the Probation and Parole officers, Agent Douglas Black, was contacted by a sergeant with the New Orleans Police Department's Fourth District Task Force and advised that the Task Force had been conducting surveillance of a residence in Algiers and had observed defendant engaging in what appeared to be illegal narcotics activity there, including selling narcotics in hand-to-hand transactions. Algiers is part of Agent Black's area of supervision, and he testified that he is the person who is generally contacted when the police learn that someone who may be engaged in criminal conduct in Algiers is on probation or parole.

Agent Black and other Probation and Parole agents attempted to contact defendant at the residence in Algiers, but he did not appear there. His address of record with the Probation and Parole office was in Harvey, in an area supervised by Probation and Parole Agent Jacob Rieux.

Agent Black testified that on June 28, 2017, he, Agent Rieux, and Agent Stephen Favorite went to defendant's apartment in Harvey to determine whether he was in compliance with the conditions of his parole. Agent Rieux arranged to have Jefferson Parish Sheriff's Detective John Wiebelt and other narcotics officers accompany them on the compliance check. Detective Wiebelt testified that the defendant was not under investigation by the Sheriff's Office and said he had no prior knowledge of the defendant.

The three parole agents approached the apartment first, while Detective Wiebelt and his officers remained nearby. Agent Rieux knocked on the door and defendant answered. Agent Rieux identified himself and asked the defendant to step outside so they could speak with him. Defendant complied. One of the agents told defendant that they were there for a compliance check. Defendant and the agents then entered the apartment and the agents detained the defendant, for their safety and his. Detective Wiebelt also entered the apartment. Agent Black initially testified that the New Orleans Police Department had issued a warrant for defendant's arrest, but the parties later stipulated that there was no warrant for his arrest in June 2017.

While clearing an area for defendant to sit on a sofa in the front room, Agent Black observed a small plastic bag sticking out from between the sofa cushions. The agents retrieved the bag, which contained eighteen smaller bags of what appeared to be heroin. The contents were field tested and tested positive for heroin. Detective Wiebelt then obtained a search warrant to search the residence. Other illegal drugs and a gun were confiscated in the search.

In the search warrant affidavit and in his report of defendant's arrest, Detective Wiebelt stated that he had accompanied agents with the Department of Probation and Parole as they conducted a compliance check at Spriggs' residence. He did not say anything about the criminal investigation being conducted by the New Orleans Police Department (NOPD). Detective Wiebelt testified that he intentionally omitted any reference to that because it was a different jurisdiction's investigation, it may have still been ongoing, and it was irrelevant to the search warrant request and the arrest report. He testified that no one from the NOPD was present during the search of defendant's apartment and that he did not speak with the NOPD about their investigation.

As noted above, defendant's assigned parole officer, Agent Becnel, did not go with the other parole officers to defendant's apartment on June 28 because he was assigned to office duty that day. Agent Becnel testified that Agent Black had told him the Fourth District Task Force was looking into Mr. Spriggs in connection with some illegal activity that was going on in Algiers.

TRIAL COURT RULING

In ruling on the motion to suppress, the trial court stated, "I find no subterfuge here. This is a compliance check on a parolee, and a search warrant was ultimately obtained. The motion to suppress is denied." The court implicitly rejected defendant's contention that the initial entry into his residence by parole officers was unlawful because it was conducted by parole officers other than his assigned officer.

ASSIGNMENT OF ERROR

Defendant contends the trial court erred in denying his motion to suppress because the State failed to carry its burden of proof sufficient to justify the warrantless entry and search of his residence. He maintains that the unlawfulness of the initial entry tainted the seizure of the heroin without a warrant and the seizure of the other evidence with a warrant.

Defendant's argument is twofold. First, he asserts that La. C.Cr.P. art. 895(A)(13)(a) requires that the initial entry into and warrantless search of a parolee's residence be conducted by the parole officer assigned to the parolee. Additionally, he contends the officers here had no reason to believe he was in violation of the conditions of his parole when they decided to conduct a "compliance check," making their visit to his apartment a subterfuge to help another police agency that desired to conduct a search but lacked probable cause.

ANALYSIS

Assigned Parole Officer

The law cited by defendant in support of his assertion that only a parolee's assigned parole officer may enter and search the parolee's residence without a warrant- La. C.Cr.P. art. 895(A)(13)(a) -applies only to probationers, not to parolees. State v. Warren , 239 So.3d at 971.

The law applicable to parolees appears in La. R.S. 15:574.4.2(A)(1) and (A)(2)(i), which state:

A. (1) The committee on parole may make rules for the conduct of persons heretofore or hereafter granted parole. When a prisoner is released on parole, the committee shall require as a condition of his parole that he refrain from engaging in criminal conduct.
(2) The committee may also require, either at the time of his release on parole or at any time while he remains on parole, that he conform to any of the following conditions of parole which are deemed appropriate to the circumstances of the particular case:
.....
(i) Agree to visits at residence or place of employment by the probation and parole officer at any time.
Further agrees to searches of person, property, residence, or vehicle, when reasonable suspicion exists that criminal activity has been engaged in while on parole. (Emphasis added.)

At the time of the visit in this case in June 2017, this law, unlike the law applicable to probationers, did not require that visits to a parolee's residence be conducted by the parole officer assigned to him. State v. Warren , 239 So.3d at 971 ; State v. Sinegal , 2017 WL 6350261 at *8. That requirement did appear in the law applicable to parolees before August 1, 2012, as noted in State v. Bolden , 13 So.3d at 1172 & n. 1. See also State v. Wesley , 685 So.2d at 1174. The legislature removed that requirement by Acts 2012, No. 241, effective August 1, 2012. The law as amended in 2012 was in effect on June 28, 2017.

In 2018, the legislature enacted Subsection I of La. R.S. 15:574.4.2, which states:

For purposes of this Section, "probation and parole officer" means:

(1) The probation and parole officer originally assigned to the parolee.
(2) Any probation and parole officer who is subsequently assigned or directed by the Department of Public Safety and Corrections to supervise the parolee, whether the assignment to the parolee is temporary or permanent.

Acts 2018, No. 351.

This amendment took effect on August 1, 2018. It was not in effect on June 28, 2017, when the parole officers visited defendant's residence. In 2017, La. R.S. 15:574.4.2 did not define the term "probation or parole officer" or limit the authority for visits to a parolee's residence to the parolee's assigned parole officer. State v. Warren , 239 So.3d at 971 ; State v. Sinegal , 2017 WL 6350261 at *8.

Purpose of Visit

The jurisprudence has recognized that a parolee agrees to submit to unannounced visits from his parole officer (or a parole officer, under the wording of the law in effect from 2012 until 2018) as a condition of parole, and that it is an appropriate function of a parole officer to conduct unannounced, random checks on parolees. State v. Bolden , 13 So.3d at 1172 ; State v. Wesley , 685 So.2d at 1174 ; State v. Robertson , 06-167 (La. App. 3 Cir. 7/16/08), 988 So.2d 294, 303, writ denied , 08-2301 (La. 9/4/09), 17 So.3d 950.

As a result of his conviction of a crime and his agreement to allow a probation or parole officer to investigate his activities in order to confirm that he is abiding by the conditions of his release from custody, an individual on probation or parole has a reduced expectation of privacy and freedom from governmental intrusion into his affairs. State v. Malone , 403 So.2d 1234, 1238 (La. 1981) ; State v. Bolden , 13 So.3d at 1171. This reduced expectation of privacy allows for warrantless searches of his person and residence by a probation or parole officer who has reasonable suspicion to believe the person is engaging in criminal activity, with "reasonable suspicion" meaning more than a hunch, but less than probable cause. State v. Malone , 403 So.2d at 1239 ;

State v. Bolden , 13 So.3d at 1171. "Reasonable suspicion" requires no more than that the parole officer be able to point to specific and articulable facts that, taken together with rational inferences form those facts, reasonably warrant a belief in the conclusion that a condition of parole has been or is being violated. U.S. v. Scott , 678 F.2d 32, 35 (5th Cir. 1982).

A probation or parole officer may not use his authority as a subterfuge to help another police agency that desires to conduct a search in connection with a criminal investigation, but lacks probable cause. State v. Malone , 403 So.2d at 1238 ; State v. Bolden , 13 So.3d at 1171.

Parolees must refrain from engaging in criminal activity while on parole. La. R.S. 15:574.4.2(1). The same is true for probationers. La. C.Cr.P. art. 895(A). A probation or parole officer who receives information that a person under supervision may be engaging in criminal activity, and thus violating a condition of probation or parole, has a duty to investigate and determine whether or not the person is in compliance with the conditions of his release from custody. State v. Vailes , 564 So.2d 778, 781 (La. App. 2 Cir. 1990) ; State v. Epperson , 576 So.2d 96, 100 (La. App. 2 Cir. 1991), writ denied , 580 So.2d 920 (La. 1991).

In this case, Probation and Parole Agent Black received information from a sergeant with the New Orleans Fourth District Task Force that the defendant had been observed engaging in the sale of illegal narcotics, including hand-to-hand transactions, at a residence in Algiers. This information, which Agent Black shared with other parole officers, provided them with a reasonable suspicion that defendant was engaging in criminal activity while on parole for past drug crimes. The parole officers had a duty to investigate and determine whether that information was accurate and were entitled to do so through a random unannounced visit to defendant's apartment. In such circumstances, the fact that they were accompanied by sheriff's officers does not negate that the purpose of their visit was to determine whether the defendant was in compliance with the conditions of his parole. See and compare State v. Wesley , 685 So.2d at 1175 ; State v. Odom , 34,054 (La. App. 2 Cir. 11/1/00), 772 So.2d 281, 286-287. The sheriff's office was not investigating the defendant, and no one from the investigating agency in New Orleans participated in the visit or the search that followed. This case is factually distinguishable from cases in which a purported compliance check was found to be a subterfuge for a criminal investigation, such as State v. Saulsby , 04-880 (La. App. 5 Cir. 12/28/04), 892 So.2d 655.

CONCLUSION

Based on the evidence in the record, we conclude that the State carried its burden of proof sufficient to justify the warrantless entry into and search of defendant's residence. At the time of these offenses, parole officers other than the officer assigned to a defendant could lawfully conduct compliance checks. The record clearly supports the trial court's finding that the visit to defendant's apartment was a legitimate compliance check and was not a subterfuge for a criminal investigation.

The officers were lawfully inside the apartment when they observed a bag of what appeared to be heroin that was sticking out from between the sofa cushions. The heroin was seized under the plain view exception to the warrant requirement, which allows seizure of evidence in plain view when there is prior justification for an intrusion into the protected area and it is immediately apparent, without close inspection, that the items seized are evidence or contraband. State v. Marks , 09-260 (La. App. 5 Cir. 10/27/09), 28 So.3d 342, 352-353, writ denied , 09-2568 (La. 5/7/10), 34 So.3d 860. The other evidence was seized on the basis of a search warrant obtained after the heroin was found in the apartment.

We find no error in the trial court's denial of the motion to suppress.

ERROR PATENT REVIEW

We have reviewed the record for errors patent, pursuant to La. C.Cr.P. art. 920, State v. Oliveaux , 312 So.2d 337 (La. 1975) and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). We note that the minute entry of defendant's sentencing reflects that the trial court ordered defendant to pay $ 500 in restitution to James Harold. However, there is no mention of restitution in the transcript of defendant's guilty plea and sentencing or in the schedule of fines and fees in the record. When there is a conflict between the minutes and the transcript, the transcript prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983). We remand the matter to the trial court with instructions to conform the minutes to the transcript, as noted below.

DECREE

We affirm the trial court's denial of defendant's motion to suppress and affirm defendant's convictions.

With respect to sentencing, we remand the matter to the trial court for the limited purpose of correcting the court minutes concerning sentencing to conform to the transcript as to the payment of restitution. Further, we direct the Clerk of Court for the 24th Judicial District Court to transmit the corrected minute entry to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' legal department. See State v. Garcie , 17-609 (La. App. 5 Cir. 4/11/18), 242 So.3d 1279, 1290. In all other respects, we affirm defendant's sentences.

CONVICTIONS AND SENTENCES AFFIRMED. REMANDED WITH INSTRUCTIONS.

      As noted in our analysis of this issue below, the law has varied over the years on the issue of whether such visits must be conducted by the parolee's assigned parole officer. Defendant contends the law in effect in June 2017 contained such a requirement.

      Before August 1, 2012, the law required that such visits be conducted by the parolee's assigned parole officer. That requirement was removed in 2012. See discussion of the legislative history in the Analysis/Assigned Parole Officer section below.

      At the time of these offenses in 2017, La. C.Cr.P. art. 895(A)(13)(a) stated: "When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct ... and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following. That the defendant shall:
      .....
      Agree to searches of his person, his property, his place of residence, his vehicle, or his personal effects, or any or all of them, at any time, by the probation officer or the parole officer assigned to him , with or without a warrant of arrest or with or without a search warrant, when the probation officer or the parole officer has reasonable suspicion to believe that the person who is on probation is engaged in or has been engaged in criminal activity." (Emphasis added.)
      Article 895(A)(13)(a) was amended in 2018 to expand the definition of the term "probation and parole officer." See footnote 4 below.

      This legislation also amended La. C.Cr.P. art. 895(A)(13)(a) to incorporate the second part of the definition of "probation and parole officer" into the law applicable to probationers, for the express purpose of legislatively overruling the Louisiana Supreme Court's decision in State v. Brignac , 17-448 (La. 10/18/17), 234 So.3d 46, "to the extent that the court held that a warrantless search of a probationer's residence violates the provisions of Code of Criminal Procedure Article 895(A)(13)(a) when the search is not conducted by the probation officer assigned to the probationer by the Department of Public Safety and Corrections." Acts 2018, No. 351, Section 3.