author: HUGHES, J., would grant.

text:
    Milo A. NICKEL, Jr. v. FORD MOTOR COMPANY, et al.
    NO. 2018-C-1035
    Supreme Court of Louisiana.
    October 15, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF CALCASIEU
    Writ denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant and assigns reasons.

The issues in this case are prescription and negligence. Thus, the standard of review is whether or not the trial court was manifestly erroneous or clearly wrong. The facts in this case present two permissible views of the evidence.

The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, such as in this case, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO , 549 So.2d 840 (La.1989). Here, the trial court's findings were reasonable. Thus, in my view, the appellate court impermissibly substituted its judgment for that of the trial court.

Additionally, with regard to the issue of prescription, there were two possible constructions. Generally, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it; thus, of two possible constructions, that which favors maintaining, as opposed to barring an action, should be adopted.

Wells v. Zadeck , 11-1232 (La. 3/30/12) 89 So.3d 1145. That was not done in this case.

For these reasons, I would reverse the court of appeal and reinstate the trial court's judgment.


source: Caselaw Access Project

license: Public Domain

text:
    Ashley Dominic LAWRENCE v. Patricher SCHEXNAYDER and Government Employees Insurance Company
    NO. 2018-CC-1296
    Supreme Court of Louisiana.
    October 15, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
    Writ denied.
    JOHNSON, C.J., would grant and assigns reasons.
    I would grant plaintiff's writ application, finding the court of appeal erred in dismissing Eugenia Chatman's claims as prescribed on the ground the amending petition adding her as a plaintiff did not relate back to plaintiff Ashley Lawrence's original timely-filed petition.
    In Giroir v. S. Louisiana Med. Ctr., Div. of Hosps ., 475 So.2d 1040 (La. 1985), this court held:
    [A]n amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense.
    475 So.2d at 1044. I find Ms. Lawrence's amended petition filed on behalf of her mother, Ms. Chatman, clearly satisfies the four factors set forth in Giroir .
   First, there is no dispute Ms. Chatman's claims arise out of the same occurrence as the accident described in Ms. Lawrence's original petition. Second, defendants have long been aware of Ms. Chatman's existence and involvement in the accident as Ms. Chatman's counsel sent a letter of representation to GEICO shortly after the accident, which included a copy of the accident report identifying all plaintiffs as occupants of the vehicle at the time of the accident. Further, according to Ms. Chatman, GEICO acknowledged her claims and requested updates on medical treatment and costs, and engaged in settlement negotiations. Given the defendants' obvious awareness and familiarity with Ms. Chatman's claims, and considering the district court found the addition of Ms. Chatman as a party would not disturb the case management schedule or the trial date, I find defendants would not be prejudiced in defending Ms. Chatman's claims, thus satisfying the fourth factor of Giroir . The real dispute in this case centers on whether the third Giroir factor is satisfied. In my view, Ms. Chatman, who is Ms. Lawrence's mother, is sufficiently related to Ms. Lawrence such that Ms. Chatman is not a wholly new or unrelated party. For these reasons, I would grant plaintiff's writ application.


text:
    Kayla ARCENEAUX v. LAFAYETTE GENERAL MEDICAL CENTER, et al
    NO. 2018-C-951
    Supreme Court of Louisiana.
    October 15, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF LAFAYETTE
    Writ denied.
    JOHNSON, C.J., would grant and assigns reasons.
   HUGHES, J., would grant.

GENOVESE, J., would grant.

I would grant plaintiff's writ application, finding the lower courts erred in granting defendant's motion for summary judgment.

In medical malpractice cases, this court has long recognized that expert testimony is not required to establish the applicable standard of care and whether or not that standard was breached where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. See Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880, 884 ; Pfiffner v. Correa , 94-0924, 94-0963, 94-0992 (La. 10/17/94), 643 So.2d 1228. In this case, plaintiff asserted that after the delivery of her baby, during which she was administered epidural anesthesia multiple times, she was unable to feel her legs. Despite her protestations, plaintiff asserted the nursing staff at Lafayette General Medical Center forced her out of bed and she fell onto the floor, injuring her neck. In my view, the negligence asserted by the plaintiff is such that a lay person could infer negligence without the need for expert testimony. For this reason, I find defendant's motion for summary judgment should have been denied. Thus, I would grant plaintiff's writ application and reverse the rulings of the lower courts.


author: GUIDRY, J., would grant.

text:
    Allen B. MINIX, et al. v. CITY OF RAYNE, et al.
    No. 2018-C-0722
    Supreme Court of Louisiana.
    October 15, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF ACADIA
    Writ denied.
   GUIDRY, J., would grant.

CLARK, J., would grant.

CRICHTON, J., would grant and assigns reasons.

In this case involving a fall on a sidewalk, for the thorough reasons assigned by Judge Amy's dissent, I would grant the writ application of City of Rayne thereby reinstating the trial court's dismissal of plaintiff's claim.


author: PER CURIAM:

text:
    STATE of Louisiana v. Bobby LEWIS
    No. 2018-KH-1406
    Supreme Court of Louisiana.
    October 15, 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. The application is also 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 of Louisiana v. Ronnie MORAN
    No. 2018-KH-1151
    Supreme Court of Louisiana.
    October 15, 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 his second 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 of Louisiana v. Bruce HALL
    No. 2018-KH-1137
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE TWELFTH JUDICIAL DISTRICT COURT, PARISH OF AVOYELLES
   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 of Louisiana v. Floyd TYLER
    No. 2018-KH-0984
    Supreme Court of Louisiana.
    October 15, 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 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 of Louisiana v. Matthew TRENT
    No. 2018-KH-1358
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY
   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. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his second 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 of Louisiana v. Felton READO, Jr.
    No. 2018-KH-1200
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU
   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.

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 of Louisiana v. Jessie James OFFORD
    No. 2018-KH-1190
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY
   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. The application is also 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.

Genovese, J., recused.


text:
    STATE of Louisiana v. Darnell CROCKHARN a/k/a Darrell Crockhard
    No. 2018-KH-0699
    Supreme Court of Louisiana.
    October 15, 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. In addition, relator's 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 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030. The application is also 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 of Louisiana v. Cory Reginald SHEPHERD
    No. 2018-KH-0652
    Supreme Court of Louisiana.
    October 15, 2018
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU
   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. In addition, relator's 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. The application is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated his second 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.

Genovese, J., recused.


text:
    STATE of Louisiana v. Billy R. MEADOWS, Jr.
    NO. 2018-KO-0259
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Traveyon BLACKLEDGE
    NO. 2018-K-0433
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.
   WEIMER, J., recused.


text:
    PROFESSIONAL FLUID SERVICES, LLC v. NORSK BRONNSERVICE AS, et al.
    NO. 2018-C-0869
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.
   GUIDRY, J., would grant.

GENOVESE, J., would grant for reasons assigned by Judge Conery.


author: GENOVESE, J., recused.

text:
    Angela Marie COSTANZA, et al. v. James D. CALDWELL, et al.
    NO. 2018-C-0899
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.
    CLARK, J., would grant and reinstate the order of the district court.
    CRICHTON, J., would grant and reinstate the order of the district court.
   GENOVESE, J., recused.


text:
    BAYOU CANARD, INC. v. STATE of Louisiana THROUGH the COASTAL PROTECTION AND RESTORATION AUTHORITY
    NO. 2018-C-0965
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


author: WEIMER, J., would grant.

text:
    Gary JEANSONNE v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS YOUTH SERVICES, OFFICE OF JUVENILE JUSTICE and Sedgwick Claims Management Services
    NO. 2018-C-1148
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.
   WEIMER, J., would grant.

CRICHTON, J., would grant for the reasons assigned by Judges Amy and Conery.


text:
    CROSSTEX ENERGY SERVICES, LP, Crosstex Lig, LLC, and Crosstex Processing Services, LLC v. TEXAS BRINE COMPANY, LLC, et al.
    NO. 2018-CC-1159
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    Khristy Goins RISMILLER, Tutrix for Daniel Edwards Goins v. GEMINI INSURANCE COMPANY, et al.
    David Watts v. Mark Gordon, et al.
    Sheila Smith v. Gemini Insurance Company, et al.
    Succession of Richard Stewart, Jr., et al. v. Mark Isiah Gordon, et al.
    NO. 2018-CC-1167
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    STATE of Louisiana v. James R. TOWNLEY, Jr.
    NO. 2018-KH-1181
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    PLAQUEMINES PARISH GOVERNMENT, as the Assignee and Subrogee of All South Consulting Engineers, LLC v. FIRST MERCURY INSURANCE COMPANY and All South Consulting Engineers, LLC
    NO. 2018-CC-1229
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    STATE of Louisiana v. Jontreal FISHER
    NO. 2018-KK-1184
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    Khristy Goins RISMILLER, Tutrix for Daniel Edwards Goins v. GEMINI INSURANCE COMPANY, et al.
    David Watts v. Mark Gordon, et al.
    Sheila Smith v. Gemini Insurance Company, et al.
    Succession of Richard Stewart, Jr., et al. v. Mark Isiah Gordon, et al.
    NO. 2018-CC-1188
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    Carlos MARTINEZ v. RELIABLE SOIL, Anthony James and Houston Specialty Ins.
    NO. 2018-CC-1264
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    STATE of Louisiana v. Jonathan ROBERTSON
    NO. 2018-KK-1206
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    Deborah JOHNSON, et al. v. BANCROFT BAG, INC., et al.
    NO. 2018-CC-1209
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    G. Steven DUPLECHAIN and Kerri Keating v. COX COMMUNICATIONS CENTRAL II, INC., d/b/a Cox Communications
    NO. 2018-CD-1216
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD
    No. 2018-OB-0467
    Supreme Court of Louisiana.
    October 29, 2018
    Reconsideration denied.


text:
    Joey HIGGINBOTHAM v. USAGENCIES CASUALTY INSURANCE COMPANY, INC., et al.
    Joey Higginbotham v. USAgencies Casualty Insurance Company, Inc., et al.
    NO. 2018-C-1217
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.
   WEIMER, J., would grant.


text:
    Dianne WILLIAMS, Cyril Jefferson, Donna Carter, Darlene Colbert Turner, and Gregory Depland, Individually and on Behalf of Their Father, Frederick Depland (D) v. TOURO INFIRMARY, Dr. Charlane Liles, and Dr. Theodore J. Borgman
    Dianne Williams, Cyril Jefferson, Donna Carter, Darlene Colbert Turner and Gregory Depland, Individually and on Behalf of Their Father, Frederick Depland v. Touro Infirmary, Dr. Charlane Liles and Dr. Theodore J. Borgman
    NO. 2018-CC-1265
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Kay HANAGRIFF, Individually, etc., et al. v. PREFERRED PROFESSIONAL INSURANCE COMPANY, et al.
    NO. 2018-C-1221
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


author: CRICHTON, J., would grant.

text:
    Holly FONTENOT, et al. v. SAFEWAY INSURANCE COMPANY OF LOUISIANA
    NO. 2018-C-1223
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.
   CRICHTON, J., would grant.


text:
    Stephen E. WESLEY and Kathy Gunn Wesley v. OUR LADY OF THE LAKE HOSPITAL, INC.
    NO. 2018-CC-1226
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    STATE of Louisiana v. Ebone Shirley WILSON
    NO. 2018-KK-1543
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    RIVER RENTAL REALTY LLC, and River Rental Tools, Inc. v. DEEP SOUTH LEASING, LLC
    NO. 2018-C-1227
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    Jerry BELL v. LAKE PROVIDENCE HOUSING AUTHORITY, Billy Coleman, Lynn Thom, Rosie Larry, Arthur J. Gallagher Risk Management Services, Inc.
    NO. 2018-CC-1249
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Sidney John HANDY
    NO. 2018-KO-1234
    Supreme Court of Louisiana.
    October 29, 2018
    Denied; untimely. See La.S.Ct. Rule X, § 5(a).


author: JOHNSON, C.J., would grant.

text:
    STATE of Louisiana v. Sareel POINDEXTER
    No. 2016-K-1868
    Supreme Court of Louisiana.
    October 29, 2018
    Not considered. See La.S.Ct.R. IX, § 6.
   JOHNSON, C.J., would grant.

WEIMER, J., recused.

HUGHES, J., would grant


text:
    Janice CLABORNE and Sheryl Jones, et al. v. The HOUSING AUTHORITY OF NEW ORLEANS, et al.
    NO. 2018-CC-1250
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    Patricia MEYERS v. BOSSIER CASINO VENTURE, INC., d/b/a Margaritaville Resort Casino and Otis Elevator Company
    NO. 2018-CC-1253
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    Justo E. ROQUE, Jr. v. Douglas CROSS, D.D.S.
    NO. 2018-C-1254
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    STATE of Louisiana v. Courtney ABLES
    No. 2017-KO-0488
    Supreme Court of Louisiana.
    October 29, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


author: GENOVESE, J., would grant in part.

text:
    Gary SHEPARD and Shannon Kidd, Individually and on Behalf of James Shepard (D) v. STATE of Louisiana, THROUGH the LOUISIANA NATIONAL GUARD and Its Capacity as the Youth Challenge Program
    NO. 2018-CC-1260
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.
   GENOVESE, J., would grant in part.


text:
    IN RE: Medical Review Panel Request of Lionel FAVRET, Jr.
    Lionel Favret, Jr. and Lynda Hannie Favret v. Touro Infirmary
    NO. 2018-C-1262
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    Dianne WILLIAMS, Cyril Jefferson, Donna Carter, Darlene Colbert Türner, and Gregory Depland, Individually and on Behalf of Their Father, Frederick, Depland (D) v. TOURO INFIRMARY, Dr. Charlane Liles, and Dr. Theodore J. Borgman
    Dianne Williams, Cyril Jefferson, Donna Carter, Darlene Colbert Turner and Gregory Depland, Individually and on Behalf of Their Father, Frederick Depland v. Touro Infirmary, Dr. Charlane Liles and Dr. Theodore J. Borgman
    NO. 2018-CC-1268
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.
   HUGHES, J., would grant.


text:
    Loretta Louis BICKERSTAFF, et al. v. Richard J. BICKERSTAFF
    NO. 2018-CC-1238
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


text:
    STATE of Louisiana v. Sherman FREDIEU, Jr.
    NO. 2018-KO-1315
    Supreme Court of Louisiana.
    October 29, 2018
    Denied.


author: PICKETT, Judge.

text:
    STATE of Louisiana v. Joshua LEWIS
    18-600
    Court of Appeal of Louisiana, Third Circuit.
    Filed August 31, 2018
    Alexander Hurd, Public Defender's Office - 16th JDC, 215 W. Saint Peter Street, New Iberia, LA 70560, (337) 365-4006, COUNSEL FOR DEFENDANT/APPLICANT: Joshua Lewis
    M. Bofill Duhe, District Attorney, W. Claire Howington, Assitant District Attorney, 300 Iberia St., Suite 200, New Iberia, Lousiana 70560, (337) 369-4420, COUNSEL FOR PLAINTIFF/RESPONDENT: State of Louisiana
    Court composed of Elizabeth A. Pickett, Billy H. Ezell, and Candyce G. Perret, Judges.
   PICKETT, Judge.

Relator, Joshua Lewis, seeks supervisory writs from a May 2, 2018 district court judgment that denied his motion to terminate revocation proceedings due to both the summons and the probation revocation hearing being untimely. For the following reasons, we deny the writ application.

STATEMENT OF THE CASE

On September 29, 2016, the state filed a bill of information charging Mr. Lewis with one count of possessing marijuana with intent to distribute, in violation of La.R.S. 40:966 ; with one count of performing transactions with drug proceeds, in violation of La.R.S. 40:1041 ; and with one count of possessing drug paraphernalia, in violation of La.R.S. 40:1023 and 40:1025. On March 6, 2017, Mr. Lewis entered into a plea agreement with the state. In accordance with the bargain, the state dismissed the drug proceeds charge, and Mr. Lewis pled guilty to the lesser-included offense of simple possession of marijuana and guilty as charged to possession of drug paraphernalia. The sentencing court then imposed penalties in accordance with the plea agreement, six months of jail time for each conviction; the district court further ordered the sentences to run consecutively, suspended the penalties, and placed Mr. Lewis on one year of probation, which was to end on March 6, 2018. Mr. Lewis did not appeal.

On March 6, 2018, Mr. Lewis's probation officer filed a motion and order to revoke Mr. Lewis's probation with the district court. The allegations in the motion were presented via affidavit; they were sworn by Probation Officer Charles Wilson before a notary public. On the same date, the district court signed the attached rule to show cause setting the matter for hearing and ordering a copy of the pleading be served upon all relevant parties. Two days later, on March 8, 2018, the Sixteenth Judicial District Court clerk's office sent notices to the parties.

The district court conducted the probation revocation hearing on May 2, 2018. At the hearing, defense counsel moved to quash the probation revocation proceedings because neither an arrest warrant nor a summons was issued during Mr. Lewis's probationary period. The district court denied the motion and held the relevant date was the date it signed the order attached to the motion and order to revoke probation. The district court then continued the revocation hearing until September 5, 2018. Mr. Lewis now seeks supervisory review of the May 2, 2018 ruling that denied his oral motion to quash the probation revocation proceedings based upon expiration of the probationary term prior to issuance of the summons.

DISCUSSION

In his sole assignment of error, Mr. Lewis contests the district court's finding of what constitutes the relevant date for determining whether probation revocation proceedings were instituted in a timely matter:

The trial court erred in not [grant]ing Appellant's objection and motion to quash the revocation hearing as untimely due to a probationer's term only being suspended upon the issuance of either a summons to appear or a warrant of an arrest; here, a summons to appear was issued two days after Mr. Lewis had already completed his probation term on March 6, 2018.

The issue before this court is whether the detainer or summons to appear "issued" when the judge signed the order or when it was sent out from the clerk's office. According to La.Code Crim.P. art. 899(A) and (D), a probationer's probationary period is suspended upon issuance of an arrest warrant or detainer, and states:

A. At any time during probation and suspension of sentence the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation, or may issue a summons to appear to answer to a charge of violation or threatened violation.
The warrant of arrest may be executed by any peace officer and shall direct that the defendant be returned to the custody of the court or to a designated detention facility. The summons shall be personally served upon the defendant.
....
D. When a warrant for a defendant's arrest or a summons for defendant's appearance is issued under Paragraph A or a detainer is issued under Paragraph B of this Article, the running of the period of probation shall cease as of the time the warrant, summons, or detainer is issued.

Further, La.Code Crim.P. art. 898 provides that "[u]pon completion of the period of suspension of sentence or probation, ... the defendant shall have satisfied the sentence imposed."

We find that when the trial court signed the rule to show cause why Mr.Lewis's probation should not be revoked on March 6, 2018, that act constituted the issuance of a summons to appear pursuant to La.Code Crim.P. art. 899(A). State v. Broussard , 408 So.2d 909 (La.1981). This issuance of a summons, by the terms of Article 899(D), ceased the running of the period of probation.

Mr. Lewis argues that the issuance of the summons did not occur until the notice to appear was served on him on March 8, 2018. But this reading of the statute conflates the issuance of the summons in the first paragraph of section (A) with the service of the summons to appear in the second paragraph of section (A). "Courts should give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided." McLane Southern, Inc. v. Bridges , 11-1141, pp. 6-7 (La. 1/24/12), 84 So.3d 479, 483.

DECREE

We find no error in the trial court's denial of the motion to end revocation proceedings. The application for supervisory writs is denied.

WRIT DENIED.

Perret, J., dissents and assigns written reasons.


author: AMY, Judge.

text:
    STATE of Louisiana v. Jeffery Lynn JONES
    18-81
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018
    J. Phillip Terrell, Jr., District Attorney, Catherine L. Davidson, Assistant District Attorney, Post Office Drawer 1472, Alexandria, LA 71309, (318) 473-6650, COUNSEL FOR APPELLEE: State of Louisiana
    Douglas Lee Harville, Louisiana Appellate Project, Post Office Box 52988, Shreveport, LA 71135, (318) 222-1700, COUNSEL FOR DEFENDANT/APPELLANT: Jeffery Lynn Jones
    Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.
   AMY, Judge.

The defendant's niece alleged that the defendant committed various acts of sexual touching and vaginal intercourse against her while she was six to nine years of age. Although the State charged the defendant with first degree rape, a jury ultimately found the defendant guilty of third degree rape. The trial court thereafter imposed a sentence of twenty years at hard labor, doing so without benefit of probation, parole, or suspension of sentence. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The present matter arose after D.C. (born in 2001) reported in March 2016, that when she was ages six to nine years of age, her uncle, Jeffrey Lynn Jones, repeatedly touched her inappropriately. The record demonstrates that the defendant was born in 1968. After D.C.'s initial report to her older brother and, in turn, her mother, an official complaint was made with the Alexandria Police Department. Following a forensic interview at The Advocacy Center, the defendant was arrested.

By bill of indictment filed on September 29, 2016, the State charged the defendant with one count of first degree rape, a violation of La.R.S. 14:42, and one count of aggravated crime against nature, a violation of La.R.S. 14:89.1. The matter proceeded to a jury trial in October 2017. At the proceedings, and in addition to D.C.'s testimony regarding the alleged offenses, the State presented the testimony of a friend and schoolmate of D.C., who testified that D.C. confided in her that she had been "touched" when she was younger. The friend explained that the conversation occurred when she and D.C. were in the seventh grade. The defendant lodged a hearsay challenge to the friend's testimony which the trial court denied. Further, the State presented the testimony of D.C.'s twenty-eight year old brother, who explained that D.C. informed him of the alleged inappropriate touching a year earlier. The brother testified that D.C. informed her mother of the allegation. As with D.C.'s friend, the defendant challenged D.C.'s brother's statement as hearsay, which the trial court again denied.

Finally, the State presented the testimony of two investigating officers from the Alexandria Police Department, Corporal Matthew Cross and Detective Matthew Harrison. The trial court again overruled hearsay objections to each officer's testimony, which related to their roles in the investigation. Upon resting its case, the State dismissed the charge of aggravated crime against nature.

In his own case, the defendant presented various witnesses, including D.C.'s mother and numerous family members. The latter denied having witnessed the defendant act inappropriately. Additionally, the defendant testified on his own behalf, denying the allegations.

Following deliberations, the jury returned a responsive verdict of guilty of third degree rape. In subsequent proceedings, the trial court denied the defendant's motion for new trial in which the defendant, in part, challenged the trial court's rulings on his hearsay objections. Afterwards, the trial court turned to sentencing and ordered the defendant to serve twenty years imprisonment at hard labor, with credit for time served. The trial court ordered that the sentence be served without benefit of probation, parole, or suspension of sentence. The trial court subsequently denied both the defendant's motion for new trial as well as his motion to reconsider sentence.

The defendant appeals, assigning the following as error: "The Trial Court erred when it allowed, over defense objection, inadmissible hearsay testimony from three witnesses that D.C. had reported to them that Mr. Jones molested her."

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of the record. Louisiana Code of Criminal Procedure Article 920(2) defines such an error as one "that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." Following such review, we find no errors patent.

Hearsay

In his only assignment of error, the defendant observes that the State offered testimony from four witnesses who "related to the jury D.C.'s reporting of allegations of abuse." Reference to the transcript indicates that, in this regard, the defendant lodged hearsay objections to the testimony of D.C's friend, D.C.'s older brother, and Corporal Cross. With regard to Detective Harrison, the defendant lodged a hearsay objection to Detective Harrison's testimony regarding D.C.'s mother's complaint to him, not an objection to D.C.'s relating of details to him. The trial court overruled each of those objections.

Friend's Testimony

Notwithstanding the defendant's assertion at trial that D.C.'s friend's testimony was hearsay, the defendant suggests in his brief to this court that the trial court "was correct when it allowed testimony that D.C. first reported the alleged molestation to [her] best friend." By this now differing construct, the defendant argues that such a report constituted D.C.'s initial complaint of sexually assaultive behavior pursuant to La.Code Evid. art. 801(D)(1)(d). Classifying such an initial complaint as "not hearsay," Article 801(D)(1)(d), provides that:

D. Statements which are not hearsay . A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
....
(d) Consistent with the declarant's testimony and is one of initial complaint of sexually assaultive behavior.

After now arguing that D.C's friend's testimony was not hearsay under this framework, the defendant references La.Code Evid. art. 801(D)(1) cmt. (e) (1988), which provides, in part that: "It is only the initial complaint by the victim, whether made to a family member, policeman, or other person, that is defined as non-hearsay under this provision. Subsequent complaints or reports about the same crime would not be admissible under it." Thus, according to the defendant's argument on appeal, since D.C.'s friend's testimony constituted an initial report of sexually assaultive behavior, the trial court erred in allowing testimony from D.C.'s older brother, Corporal Cross, and Detective Harrison regarding D.C.'s complaints.

However, given that the defendant's argument now differs on appeal, there is no indication in the record that the trial court was presented with the issue of whether D.C.'s friend offered testimony regarding the initial complaint of sexually assaultive behavior. See Uniform Rules-Courts of Appeal, Rule 1-3 (providing, in part, that: "The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise."). Additionally, and to the extent the defendant maintained at trial that the testimony was admitted in error as hearsay, we note the trial court provided a limiting instruction regarding D.C.'s friend's testimony as follows:

I'm go[ing] to give you an instruction that you're to consider that it's not for the truth of the matter that the crime alleged happened. It's only to prove ... that the statement was made to the girls. Okay? Just because she says this happened doesn't mean that it is, it is the truth. I just wanted y'all to hear that so you can judge what relevance you want to give it.

Brother

In contrast, the trial court provided no limiting instruction following the hearsay objection lodged by the defendant in relation to the testimony of D.C.'s older brother. That lack of instruction is consistent with a finding that his statement concerning D.C.'s complaint constituted the initial complaint of sexually assaultive behavior pursuant to La.Code Crim.P. art. 801(D)(1)(d) and was, accordingly, not hearsay. While D.C.'s complaint to her friend was temporally her first complaint, we find that the circumstances support a finding that her report to her adult brother constituted the initial complaint of sexually assaultive behavior for purposes of La.Code Evid. art. 801(D)(1)(d) insofar as she confided to him as a trusted adult. See State v. Ste. Marie , 97-0168, pp. 11-12 (La.App. 3 Cir. 4/18/01), 801 So.2d 424, 433 (wherein a panel of this court determined that, although a juvenile victim first made a complaint of sexual assault to "a little girl in the neighborhood[,]" the victim's subsequent statement to her mother constituted the initial complaint of sexually assaultive behavior for purposes of La.Code Evid. art. 801(D)(1)(d) as it "was the first complaint made to a friendly adult.").

Corporal Cross

Next, we find no error in the trial court's rejection of the defendant's hearsay objection lodged during the testimony of Corporal Cross, who explained that he filed the initial report after being informed that the formal complaint was made. When asked what happened when he arrived at D.C.'s home, he explained that D.C.'s mother "stated that her daughter, [D.C.], wanted to come forward[.]" Following the defendant's subsequent objection, the trial court overruled the objection, instructing the jury as follows:

I am going to ... overrule your objection. Once again ... this is not to be accepted for the truth of the matter. It's only to show why the police did what they did. Okay? He's go[ing] to say what she did, and then he's g[oing to] say what he did based upon that. It's not for the truth of the matter. It's just to show you why he did what he did.

Following that limiting instruction, and upon questioning by the State, Corporal Cross explained:

A. [D.C.'s mother] stated that [D.C.] had come forward to her and, and advised her that when she was about approximately six years of age that her Uncle Jeffrey had sexually assaulted her.
Q. Okay. Um, and did you make contact with [D.C.] at that time?
A. I did. And she confirmed, uh, the statements that her mother was making also to me.
Q. Okay. And what did you do with that information, Officer?
A. Uh, I called my supervisor, Sergeant Wesley Matthews, and notified him of the situation, and I believe he made contact with the Detective on call as well.
Q. Okay. Did you play any other role in the investigation?
A. Uh, I took the initial statement and wrote it down, uh, what she had told us and everything after that was handled by the Detective Division.
Q. Okay. And do you recall exactly what she told you?
A. She told me that she was fifteen at the time when I made contact with her. She told me that at, at approximately six years of age about seven or eight times I believe it was she had been sexually assaulted and forced to have sex with her uncle.
Q. Okay. And at that point, uh, were you relieved of the investigation or was it turned over to another Detective?
A. Yes, sir. Uh, once I took that statement and I made my initial report, it was then turned over to the, the Detectives.
Q. Okay. Did that conclude your role in the investigation?
A. Yes, sir.

As reflected by the trial court's ruling, the supreme court has explained that a police officer's testimony regarding information provided by another individual may not be considered hearsay if it is offered to explain the course of the investigation of the offense. State v. Maise , 00-1158 (La. 1/15/02), 805 So.2d 1141, overruled in part on other grounds by State v. Bernard , 09-1178 (La. 3/16/10), 31 So.3d 1025. We further note that the defendant did not re-lodge his objection upon Corporal Cross's testimony regarding D.C.'s precise statement to him. See La.Code Crim.P. art. 841.

On a final point, we return to the defendant's suggestion that La.Code Evid. art. 801(D)(1) cmt. (e) (1988), cited above, indicates that witnesses offering testimony inclusive of the victim's reporting of sexually assaultive behavior is impermissible following the admission of testimony relating to an initial complaint of the behavior. However, reference to comment (e) indicates that it anticipates that: "Subsequent complaints or reports about the same crime would not be admissible under it." In this case, none of the subject witness testimony, other than that of D.C.'s older brother, was found admissible as "not hearsay" under Article 801(D)(1)(d). Rather, the trial court expressly instructed the jury that it was not to consider Corporal Cross's testimony regarding the statement for the truth of the matter asserted.

Detective Harrison

The final witness challenged by the defendant is Detective Harrison, who, like Corporal Cross, provided testimony regarding the course of his investigation following assignment to the case. Detective Harrison explained that he interviewed D.C.'s mother, but did not interview D.C. When the defendant advanced a hearsay objection after Detective Harrison related a statement provided by D.C.'s mother, the trial court expressed initial reservation as to the perceived inquiry. However, the trial court ultimately overruled the hearsay objection upon being informed that the State sought to inquire only as to what Detective Harrison learned from speaking with D.C.'s mother. Detective Harrison responded that: "I just informed her that we're go[ing to] set her daughter up for an interview." He further explained that: "I wasn't go[ing to] get - - ask her ... to get in depth into the case or anything of that nature. We set them all up for interview, allow them to be interviewed, obtain a taped statement from her, and then we go from there." Thus, we conclude that like the testimony of Corporal Cross, Detective Harrison's statement regarding that initial interview pertained to the course of the investigation. See Maise , 805 So.2d 1141.

As noted, Detective Harrison specifically testified that he did not interview D.C., but that he only viewed D.C.'s interview with the forensic interviewer. To the extent he referenced that interview, the defendant did not raise a question regarding hearsay. The defendant instead objected on grounds of "opinion" and "speculation" when the State inquired whether Detective Harrison believed what D.C. said during the forensic interview. The trial court denied that objection. On review, we do not disturb the trial court's ruling. See La.Code Evid. art. 701(1) (providing that a lay witness may testify about his or her opinion that is "[r]ationally based on the perception of the witness[.]"). See also State v. Carter , 10-0614 (La. 1/24/12), 84 So.3d 499, cert. denied , 568 U.S. 823, 133 S.Ct. 209, 184 L.Ed.2d 40 (2012).

Harmless Error

Finally, we observe here that, even upon a determination that the subject testimony constituted hearsay, the introduction of such hearsay would be viewed as harmless insofar as the jury's verdict was surely unattributable to the error. See State v. Lucky , 96-1687 (La. 4/13/99), 755 So.2d 845, cert. denied , 529 U.S. 1023, 120 S.Ct. 1429, 146 L.Ed.2d 319 (2000). The jury found the defendant guilty of third degree rape, an offense requiring evidence of anal, oral, or vaginal sexual intercourse. See La.R.S. 14:43. In contrast to the complained of witness statements, which pertained generally to allegations of touching or sexual assault, the jury heard D.C.'s pointed testimony regarding allegations of intercourse. See State v. Campbell , 06-0286 (La. 5/21/08), 983 So.2d 810 (wherein the supreme court explained that even if an investigating detective's testimony regarding his investigation was impermissible hearsay, any such error was harmless as the testimony was cumulative of the more detailed testimonies of witnesses who served as the basis for the officer's investigation), cert. denied , 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008). See also State v. Malbrough , 11-1241 (La.App. 3 Cir. 6/20/12), 94 So.3d 933 (wherein a panel of this court explained that any impermissible hearsay elicited from investigating officers regarding statements of the defendant's co-perpetrators was harmless error as the testimony was cumulative of other evidence presented and the co-perpetrators were subject to cross-examination). Significantly, D.C.'s testimony was subject to cross-examination. See Maise , 805 So.2d at 1152 (wherein the supreme court explained that "[h]earsay is excluded because the value of the statement rests on the credibility of the out-of-court asserter, who is not subject to cross-examination and other safeguards of reliability.").

Accordingly, we conclude that this assignment lacks merit.

DECREE

For the foregoing reasons, the conviction and sentence of the defendant, Jeffrey Lynn Jones are affirmed.

AFFIRMED.

      We refer to the subject minor by use of her initials pursuant to La.R.S. 46:1844(W), which provides:
      W. Confidentiality of crime victims who are minors, victims of sex offenses, and victims of human trafficking-related offenses.
      (1)(a) In order to protect the identity and provide for the safety and welfare of crime victims who are minors under the age of eighteen years and of victims of sex offenses or human trafficking-related offenses, notwithstanding any provision of law to the contrary, all public officials and officers and public agencies, including but not limited to all law enforcement agencies, sheriffs, district attorneys, judicial officers, clerks of court, the Crime Victims Reparations Board, and the Department of Children and Family Services or any division thereof, shall not publicly disclose the name, address, or identity of crime victims who at the time of the commission of the offense are minors under eighteen years of age or of victims of sex offenses or human trafficking-related offenses, regardless of the date of commission of the offense. The confidentiality of the identity of the victim who at the time of the commission of the offense is a minor under eighteen years of age or the victim of a sex offense or human trafficking-related offense may be waived by the victim. The public disclosure of the name of the juvenile crime victim by any public official or officer or public agency is not prohibited by this Subsection when the crime resulted in the death of the victim.
      As relevant to this matter, the term "sex offense" includes "the perpetration or attempted perpetration of ... any offense listed in R.S. 15:541(24)." See La.R.S. 46:1844(W)(2)(b). Louisiana Revised Statutes 15:541(24) includes the charged offense of first degree rape, as well as the lesser included offense for which the defendant was convicted, third degree rape.

      The caption and cover of the appellate record in this matter report the defendant's forename as "Jeffery." While we maintain that caption, this opinion references the defendant as "Jeffrey" given its usage in the minutes, indictment, pre-trial instruments, and the trial transcript.

      The transcript indicates that D.C.'s mother informed the Alexandria Police Department, resulting in the underlying investigation.

      The defendant contends in brief that: "D.C. told [her friend] that her paternal uncle touched her one time when she was in the bathroom." Reference to the transcript more fully indicates that the friend testified as to D.C.'s account as follows:
      Q. [D]id she give you any specific details about what she was referring to?
      A. No, she just said that she had been touched by someone when she was younger.
      Q. [D]id she tell you any specific instances about that - - about being touched?
      A. She said that she remembered one time when she was in the bathroom. She said that he came in and she didn't go in to detail about it. She would say like she was watching cartoons one time and it happened.

      Detective Harrison explained that, in the event crime victims are juveniles, "I do not interview them. Uh, we send them over to the ... Child Advocacy Center, and they're interviewed by a forensic interviewer, ... and they're trained to interview juveniles."


author: McCALLUM, J.

text:
    STATE of Louisiana, Appellee v. Lawrence NIXON, Appellant
    No. 52,202-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018 Rehearing Denied November 8, 2018
    LOUISIANA APPELLATE PROJECT By: Douglas Lee Harville, RICK WARREN, Oklahoma City, LAWRENCE KIVIN NIXON, Counsel for Appellant
    DANNY W. NEWELL, District Attorney, TERESA CULPEPPER CARROLL, TAMMY LENN GANTT JUMP, Assistant District Attorneys, Counsel for Appellee
    Before GARRETT, STONE, and McCALLUM, JJ.
   McCALLUM, J.

Lawrence Nixon was convicted by a Jackson Parish jury of one count of distribution of cocaine in violation of La. R.S. 40:967(A), and two counts of distribution of marijuana in violation of La. R.S. 40:966(A). He was sentenced to serve 20 years at hard labor for each conviction, with the sentences running consecutively, and to pay a $15,000 fine. Previously on appeal, this Court affirmed all three convictions but found that the aggregate sentence of 60 years at hard labor was unconstitutionally excessive. State v. Nixon , 51,319 (La. App. 2 Cir. 5/19/17), 222 So.3d 123, writ denied , 2017-0966 (La. 4/27/18), 239 So.3d 836. Nixon's sentences were set aside, and the matter was remanded for resentencing. Nixon was resentenced to 20 years at hard labor on each conviction, with the sentences running concurrently, and with a $15,000 fine on each of the distribution of marijuana convictions. Nixon again appeals his sentences, arguing they are yet excessive. He has also raised several pro se assignments of error relating to his sentence and denials of his motions to recuse and enforce an agreement with the prosecution.

We affirm the trial court in all respects.

FACTS

Lawrence Nixon was charged with one count of distribution of cocaine, La. R.S. 40:967(A)(1), and two counts of distribution of marijuana, La. R.S. 40:966(A)(1). The convictions resulted from his sale of three plastic bags of marijuana to two female confidential informants for $30 on January 20, 2012, and subsequent sale to the same informants of a rock of cocaine and a marijuana joint for $60 on February 23, 2012.

Nixon was convicted as charged by a jury and was sentenced by Judge Jimmy Teat to 20 years at hard labor on each count, to run consecutively, with a two-year restriction of all benefits on the distribution of cocaine conviction. A fine of $15,000 was also imposed.

Nixon appealed his sentences, but did not complain that the individual 20-year hard labor sentences were excessive. Instead, he complained that imposing the sentences to run consecutively, for a total of 60 years, made the aggregate sentence unconstitutionally excessive. Concluding that the 20-year hard labor sentences were not unconstitutionally excessive, this Court stated:

The 20-year sentences imposed for each count are quite severe considering that they involved nonviolent, small drug sale offenses-one for $30 and one for $60. However, given Nixon's history of criminal behavior and his past failures to take advantage of opportunities for rehabilitation, we find that the sentences are not unconstitutionally excessive.

State v. Nixon , 51,319 at p. 11, 222 So.3d at 130. Nevertheless, the trial court's order that the three terms of imprisonment be served consecutively tripled the already severe 20-year sentences imposed for the single course of conduct. This Court concluded that the resulting 60-year sentence was grossly disproportionate to the harm caused by the offenses. Accordingly, the sentences were set aside and the matter was remanded for resentencing.

On November 29, 2017, Nixon appeared pro se before the trial court for resentencing. Nixon insisted that Judge Teat rule on his motion in arrest of judgment relating to a motion to quash that was granted in 2013 on the grounds that Nixon had not been brought before a judge for the appointment of counsel within 72 hours from his time of arrest as required by La. C. Cr. P. art. 230.1. The motion was denied, and Nixon made an oral motion to appeal the ruling.

Judge Teat then proceeded with sentencing, and adopted the transcript of the prior sentencing regarding the recitation of the sentencing guidelines under La. C. Cr. P. art. 894.1, and the articulation of aggravating and mitigating factors. Judge Teat found that there was an undue risk that Nixon, who was 43 years old at the time, would commit another crime if granted probation or parole. He also found that Nixon was in need of correctional treatment in a custodial environment. Additionally, Judge Teat found that any lesser sentence would deprecate the seriousness of Nixon's offenses.

On the first distribution of marijuana conviction, Nixon was sentenced to 20 years at hard labor, and a $15,000 fine was imposed. On the second distribution of marijuana conviction, Nixon was sentenced to 20 years at hard labor, and a $15,000 fine was imposed. Nixon was sentenced to serve 20 years at hard labor on the distribution of cocaine conviction with no fine being imposed. The sentences were ordered to be served concurrently with each other and with any other sentence that Nixon may be serving. Nixon was given credit for time served and advised that he had two years from the date the sentence became final to seek post-conviction relief.

Judge Teat noted Nixon's oral motion to appeal the sentences and the ruling on Nixon's motion in arrest of judgment and told Nixon that if he wanted he could file a written motion for appeal. The trial court signed the order granting an appeal on December 14, 2017.

On December 6, 2017, Nixon filed a pro se motion for reconsideration of sentence in which he argued that he was sentenced without consideration being given to the Louisiana Justice Reinvestment Reform of 2017, which created alternatives to incarceration for nonviolent and nonsexual offenders. Nixon contended that incarceration should be a last resort given the fact his crimes were not violent or sexual offenses, and given the amount of drugs that he possessed or distributed. The motion was denied on December 7, 2017.

On December 20, 2017, Nixon's attorney filed a motion to reconsider sentence in which he argued that the imposed sentences were excessive and punitive and would not achieve any goal of rehabilitating Nixon. The motion was denied on December 21, 2017.

DISCUSSION

Sentence review

Nixon's offenses were committed in 2012. La. R.S. 40:966(B)(3) provided at the time that a person convicted of distribution of marijuana shall be sentenced to hard labor for not less than 5 nor more than 30 years, and pay a fine of not more than $50,000. La. R.S. 40:967(B)(4)(b) provided at the time that a person convicted of distribution of cocaine shall be sentenced to hard labor for not less than 2 nor more than 30 years, with the first 2 years to be served without the benefit of parole, probation, or suspension of sentence, and may, in addition, be sentenced to pay a fine of not more than $50,000.

Nixon's appellate counsel argues that the sentences imposed were unconstitutionally harsh and excessive because they failed to give Nixon the opportunity to be rehabilitated and reenter society. He notes that Nixon has two children and five grandchildren, that Nixon obtained his GED and took some college courses, and that Nixon had an established work history. He emphasizes that Nixon had only two prior felonies, both for the nonviolent offenses of simple burglary and simple burglary of an inhabited dwelling, and that the current offenses were based on two small drug transactions.

The State counters that the 20-year hard labor sentences are midrange given the 5-30 year range for distribution of marijuana and the 2-30 year range for distribution of cocaine, and under the circumstances, the sentences are not unconstitutionally excessive. The State points out that Nixon's criminal history is far more extensive than just the two felonies, as the PSI shows that he has four misdemeanor convictions and over 20 arrests. The State argues that Nixon failed to take advantage of prior opportunities for rehabilitation when his probation was unsatisfactorily terminated and his parole was revoked.

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. A review of the sentencing guidelines does not require a listing of every aggravating or mitigating circumstance; the trial court need only articulate a factual basis for the sentence. State v. Cunningham , 46,664 (La. App. 2 Cir. 11/2/11), 77 So.3d 477. However, the court must state for the record the considerations taken into account and the factual basis for the sentence imposed. La. C. Cr. P. art. 894.1(C). The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), the defendant's criminal record, the seriousness of the offense, and the likelihood of rehabilitation. State v. Boehm , 51,229 (La. App. 2 Cir. 4/5/17), 217 So.3d 596. There is no requirement that specific matters be given any particular weight at sentencing. Id.

Second, a sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Mandigo , 48,801 (La. App. 2 Cir. 2/26/14), 136 So.3d 292, writ denied , 2014-0630 (La. 10/24/14), 151 So.3d 600. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166 ; State v. Hollins , 50,069 (La. App. 2 Cir. 8/12/15), 174 So.3d 710.

A trial court has wide discretion in imposing sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. State v. Mandigo , supra . The reviewing court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Jackson , 48,534 (La. App. 2 Cir. 1/15/14), 130 So.3d 993 ; State v. Esque , 46,515 (La. App. 2 Cir. 9/21/11), 73 So.3d 1021, writ denied , 2011-2347 (La. 3/9/12), 84 So.3d 551.

Although not articulated by the trial court on resentencing, the sentence for distribution of cocaine includes a mandatory restriction of benefits for the first two years. Because the sentences were imposed to run concurrently, Nixon faces a 20-year hard labor sentence, with the first two years to be served without benefit of probation, parole, or suspension of sentence, and a $15,000 fine.

Nixon's criminal record was detailed by this Court in the prior appeal:

The PSI reveals that Nixon's criminal "activity" has spanned 20 years beginning on July 22, 1992, when at age 17, he was charged with illegal possession of stolen things. He was tried, convicted and fined $500. His last criminal charge, felony possession of stolen goods, was committed March 4, 2014, when Nixon was age 38, for which he apparently pled down to misdemeanor possession and received a 6-month sentence. This last charge came after the instant charges were filed against him a year earlier.
Between his first and last criminal arrest, Nixon has 19 other arrests for various crimes charged. The 26 crimes included four battery charges, a rape charge, a charge of manslaughter, seven different burglary charges, three theft charges, and several illegal possession of stolen things charges. Most of these offenses charged were nolle prossed for unknown reasons. Others resulted in fines or misdemeanor convictions. However, two of the charges resulted in felony convictions: a conviction for simple burglary of an inhabited dwelling, and a conviction for simple burglary. Both of these convictions ultimately resulted in prison sentences. In the first, Nixon received a suspended sentence and supervised probation, which was terminated unsatisfactorily, and for the second felony conviction, he received a six-year sentence and was paroled after 2 years, but his parole was revoked due to a drug arrest.
Nixon's only prior drug-related arrest noted on the PSI occurred on January 14, 2005, when he was charged with possession of drug paraphernalia. The case was nolle prossed .

State v. Nixon , 51,319 at p. 7-8, 222 So.3d at 128-129. Summarizing Nixon's criminal history, this Court noted that although most of Nixon's criminal history consisted of arrests with no convictions, he had two prior felony convictions and four misdemeanor convictions.

Our review of this record discloses no abuse of discretion by the trial court in imposing these sentences which were within the statutory limits for both the terms of imprisonment and the fines imposed. The trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1, and considered the aggravating and mitigating circumstances in this case. The trial court noted Nixon's criminal history and found that his offenses warranted incarceration for 20 years at hard labor, as well as a fine of $15,000 on each of the marijuana distribution convictions. Given that the sentences were run concurrently, the sentences imposed here are not out of proportion to the seriousness of the offenses. These sentences, which were tailored to Nixon and his offenses, do not shock the sense of justice.

PRO SE ASSIGNMENTS OF ERROR

Nixon has raised several pro se assignments of error. He complains that the trial court erred in: (1) denying his motion in arrest of judgment; (2) denying his motion to recuse Judge Teat; (3) failing to sentence him according to the 2017 amendments made to La. R.S. 40:966 and La. R.S. 40:967 pursuant to the Louisiana Justice Reinvestment Reform of 2017; and (4) denying his motion to enforce an agreement that he had with the District Attorney Offices of Jackson Parish and Jefferson Davis Parish.

Motion in arrest of judgment

Prior to trial, Nixon filed a motion complaining that he did not receive a timely "72-hour" hearing as required by La. C. Cr. art. 230.1. Judge Glenn Fallin granted this motion and ordered that Nixon be released without bail. Nixon interpreted the court's ruling to mean that he could not be prosecuted and felt that this gave him valid grounds to obtain a motion to quash the bill of information. Nixon asserts that it was error to deny his motion to quash and that the state was "arrested" from proceeding with his prosecution because of Judge Fallin's ruling granting him relief. He further asserts that the trial court was in error and was also "arrested" from allowing the prosecution to proceed. These beliefs are the basis of his motion in arrest of judgment. Nixon raised a similar issue on the prior appeal which was found to be without merit.

The remedy for a violation of La. C. Cr. P. art. 230.1 is pretrial release, and it has no effect whatsoever on the validity of the proceedings thereafter. La. C. Cr. P. art. 230.1(D) ; State v. Manning , 2003-1982 (La. 10/19/04), 885 So.2d 1044, cert. denied , 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005). Moreover, an alleged violation of La. C. Cr. P. art. 230.1 is moot after conviction and sentence. State v. Franklin , 43,173 (La. App. 2 Cir. 9/17/08), 996 So.2d 387, writ denied , 2008-2371 (La. 5/22/09), 9 So.3d 138.

The trial court properly denied this motion.

Motion to recuse

On August 9, 2017, Nixon filed a motion to recuse Judge Teat on the grounds of La. C. Cr. P. art. 671(A)(1) and (4). He asserted that Judge Teat is a witness to the fact that he was illegally convicted, i.e. , that Judge Teat allowed him to be prosecuted even though he prevailed on his 72-hour hearing motion. Nixon also asserted that Judge Teat imposed an illegal sentence, and that he would not receive a fair hearing if resentenced by Judge Teat.

La. C. Cr. P. art. 671 reads, in relevant part:

A. In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
.....
(4) Is a witness in the cause[.]

A trial judge is presumed to be impartial, and the burden is on the defendant to prove otherwise. In order to obtain a recusal based on bias, prejudice, and personal interest, the party seeking the recusal must establish grounds of a substantial nature based on more than conclusory allegations. State v. Brown , 46,669 (La. App. 2 Cir. 2/29/12), 86 So.3d 726, writ denied , 2012-0724 (La. 9/14/12), 97 So.3d 1016.

The recusal motion was heard by Judge Fallin. Nixon argued that he was tried and convicted despite his motion to quash being granted, and that Judge Teat could not give him a fair sentence when resentencing him. Nixon also complained that Judge Teat was biased against him because he had denied Nixon's pro se motions. Judge Fallin told Nixon that bias is not shown simply because a judge rules against a defendant. Noting that Nixon had not subpoenaed Judge Teat to testify at the hearing on his motion, Judge Fallin concluded that Nixon presented only mere allegations and no evidence that the urged grounds for recusal had been met. Accordingly, the motion was denied. As there was no basis to recuse Judge Teat, we find no abuse of the court's discretion in denying the motion to recuse.

Motion to enforce agreement

In October of 2016, Nixon entered into an agreement that was signed by the District Attorney for Jefferson Davis Parish and an Assistant District Attorney for Jackson Parish. The State agreed to dismiss the pending habitual offender bill filed against Nixon if he provided credible information to the Jefferson Davis Parish authorities regarding an unsolved homicide from 10 years earlier.

On December 2, 2016, Nixon filed a motion to enforce the agreement. A hearing on his motion was held a few days later. The State introduced a video of the 2016 interview conducted with Nixon. Chris Myers, an investigator with the Jefferson Davis Parish District Attorney's Office, also testified. Judge Teat took the matter under advisement, and ultimately denied the motion.

Although the agreement was not a plea agreement per se as no plea was involved, the underlying interpretive principles remain the same. Agreements to dismiss prosecution are binding constitutional contracts, and their validity is determined by analogy to our law on contracts. State v. Meredith , 35,026 (La. App. 2 Cir. 9/26/01), 796 So.2d 109.

A plea agreement is a contract between the State and a criminal defendant. State v. Young , 50,072 (La. App. 2 Cir. 8/12/15), 174 So.3d 719 ; State v. Bouwell , 45,635 (La. App. 2 Cir. 9/22/10), 48 So.3d 335 ; State v. Davis , 41,430 (La. App. 2 Cir. 11/1/06), 942 So.2d 652.

In State v. Young , supra , this court explained the principles governing the validity of plea agreements:

In determining the validity of plea agreements, Louisiana courts generally refer to rules of contract law, while recognizing at the same time that a criminal defendant's constitutional right to fairness may be broader than his or her rights under contract law. State v. Givens , 1999-3518 (La. 1/17/01), 776 So.2d 443. The party demanding performance of a contract has the burden of proving its existence. State v. Louis , 94-0761, p. 7 (La. 11/30/94), 645 So.2d 1144 at 1149. In the context of plea bargains, a defendant may demand specific performance of the state's promise if he can show that the parties reached an agreement, that he performed his part of the agreement, and that in doing so, he relinquished a fundamental right. Id. at 1149-50 ; see also , State v. Tanner , 425 So.2d 760, 763 (La. 1983).
Contracts have the effect of law for the parties and must be performed in good faith. La. C.C. art. 1983. A party has an implied obligation to make a good faith effort to fulfill the conditions of a contract. Bloom's Inc. v. Performance Fuels, L.L.C. , 44,259 (La. App. 2 Cir. 7/1/09), 16 So.3d 476, writ denied , 2009-2003 (La. 11/20/09), 25 So.3d 800. When there are reciprocal obligations, the obligor of one may not be put in default unless the obligor of the other has performed or is ready to perform his own obligation. La. C.C. art. 1993. Also, a party to a commutative contract may refuse to perform his obligation if the other has failed to perform. La. C.C. art. 2022.

Id. , 50,072 at pp. 8-9, 174 So.3d at 725.

The Assistant District Attorney argued at the hearing that the Sheriff and District Attorney for Jefferson Davis Parish believed that Nixon did not provide them with information that helped them. Investigator Myers testified that Nixon, who had been questioned 10 years earlier about the murder, provided no new, helpful information. Myers thought that at best, Nixon gave them an inconsistent statement at the more recent interview without providing any additional information.

As shown on the video, the interview lasted approximately 28 minutes. Although not reflected in the written agreement, it was mentioned at the interview that the District Attorney for Jefferson Davis Parish agreed to have Nixon serve a concurrent sentence with his drug sentences if he was convicted for any involvement in the murder. Nixon offered several times during the interview to return to Jefferson Davis Parish to obtain information by eavesdropping. After being reminded of the deal and how it could benefit him, Nixon said he had nothing but there were ways to go on "Main Street" and acquire information. Nixon was told several times during the interview that he would not be allowed to leave the jail in order to gather information. He was also reminded that he needed to provide credible information in order for there to be a deal. Nixon told the interviewing officers that he would let them know if he heard anything. Nixon also told the officers that he thought the suspect in the murder had been deceptive. When asked if the suspect had any weapons, Nixon replied that the suspect had a box cutter.

Nixon's general answers did not provide the Jefferson Davis Parish officers with credible information regarding the homicide. His answers were general in nature, and he was focused on his unrealistic quest to leave the jail in order to obtain information. Based on the evidence presented, we cannot conclude that the trial court abused its discretion in denying Nixon's motion to enforce the agreement.

Louisiana Justice Reinvestment Reform

Nixon complains that Judge Teat erred in failing to sentence him in accordance with the 2017 amendments made to La. R.S. 40:966 and 40:967.

The law in effect at the time of the commission of the offense is determinative of the penalty which is to be imposed upon the convicted accused. State v. Parker , 2003-0924 (La. 04/14/04), 871 So.2d 317 ; State v. Mizell , 50,222 (La. App. 2 Cir. 11/18/15), 182 So.3d 1082. Nixon's offenses were committed in 2012; therefore, the 2017 amendments to the sentencing provisions do not apply to his sentences. See State v. Casaday , 51,947 (La. App. 2 Cir. 4/11/18), 247 So.3d 1057. This argument is without merit.

ERROR PATENT

The trial court failed to specify that the first two years of the sentence on the distribution of cocaine conviction are to be served without benefit of parole, probation, or suspension of sentence, as required by La. R.S. 40:967.

La. R.S. 15:301.1(A) provides:

When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.

When the trial court fails to order that a portion of a sentence be served without benefits as statutorily mandated, the sentence will automatically be served without benefits for the requisite time period. State v. Jones , 48,505 (La. App. 2 Cir. 11/20/13), 128 So.3d 622. Accordingly, there is no need to remand for correction of the sentencing error; however, the trial court minutes and the uniform commitment order are to be amended to reflect the correction.

CONCLUSION

Lawrence Nixon's sentences are affirmed. The minutes and the uniform commitment order are to be amended to reflect that the first two years of the sentence on the distribution of cocaine conviction are imposed without benefit of probation, parole, or suspension of sentence.

AFFIRMED.

APPLICATION FOR REHEARING

Before Felicia Toney Williams, Frances Jones Pitman, Jeanette Giddens Garrett, Shonda D. Stone, and Jay Bowen McCallum - Writing, JJ.

Rehearing denied.

      On August 8, 2017, Nixon filed a pro se motion to recuse Judge Teat. The motion was argued before Judge Glenn Fallin and denied on September 14, 2017. Judge Fallin noted Nixon's request to appeal the ruling. On September 18, 2017, Nixon filed a written pro se motion for appeal. On September 25, 2017, the trial court signed an order granting review of the denial of the motion to recuse, ordering that a transcript of the hearing be sent to Nixon and to this Court, and setting a return date of November 25, 2017. No writ application seeking supervisory review was filed. In his pro se assignments of error, Nixon challenges the denial of the motion to recuse.

      Nixon referred to Senate Bills 139 (Act 280) and 220 (Act 281) of 2017.

      It should be noted that resentencing alone does not restart the time period for applying for post-conviction relief. La. C. Cr. P. art. 930.8 ; State v. Brumfield , 2013-2390 (La. 11/14/14), 152 So.3d 870 ; State ex rel. Rushing v. Whitley , 1993-2722 (La. 11/13/95), 662 So.2d 464. The post-conviction time limitation period in La. C. Cr. P. art. 930.8 does not begin to run anew when the sentence originally imposed is vacated and the respondent is resentenced. Id. La. C. Cr. P. art. 930.3, which sets out the exclusive grounds for granting post-conviction relief, provides "no basis for review of claims of excessiveness or other sentencing error post-conviction." State ex rel. Melinie v. State , 1993-1380 (La. 1/12/96), 665 So.2d 1172 (per curiam).

      Cited as La. R.S. 40:970 in Nixon's pro se brief.