author: CHAISSON, J.

text:
    STATE of Louisiana v. Antonio CUZA
    NO. 18-KA-187
    Court of Appeal of Louisiana, Fifth Circuit.
    November 28, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLANT, ANTONIO CUZA, Katherine M. Franks
    DEFENDANT/APPELLANT, ANTONIO CUZA, In Proper Person
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.
   CHAISSON, J.

Defendant, Antonio Cuza, appeals his conviction and sentence for aggravated battery. For the reasons that follow, we affirm defendant's conviction and sentence.

PROCEDURAL HISTORY

On July 8, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with aggravated battery, in violation of La. R.S. 14:34. At his arraignment, defendant pled not guilty. The matter proceeded to trial before a six-person jury on October 17, 2017. After considering the evidence presented, the jury, on October 18, 2017, found defendant guilty as charged.

On November 8, 2017, defendant filed a motion for new trial, arguing that the verdict was contrary to the law and evidence presented at his trial, and a motion for post-verdict judgment of acquittal, requesting the court to set aside the verdict or enter a verdict of a lesser included offense. On November 9, 2017, the trial judge heard and denied these two motions and thereafter sentenced defendant to ten years imprisonment at hard labor with credit for time served.

Defendant now appeals. His appointed appellate counsel has filed a brief challenging the sufficiency of the evidence used to convict defendant of aggravated battery. In addition, defendant has filed a pro se brief, in which he alleges that the evidence was insufficient to support his conviction and that the trial court erred in denying the defense request to conduct recross examination of one of the State's witnesses. For the reasons that follow, we find no merit to these arguments.

FACTS

On March 15, 2015, Abraham Ezekiel Montenegro-Sanchez allowed an upstairs neighbor access to his apartment and yard for a child's birthday party. When Mr. Montenegro arrived home from work that day at about 5:00 p.m., he joined in the party and began to drink with the other guests. It is undisputed that during the party, an altercation occurred between Mr. Montenegro and defendant, which resulted in the stabbing of Mr. Montenegro. However, Mr. Montenegro and defendant presented different versions of events as to the circumstances leading up to the stabbing.

According to Mr. Montenegro, at one point during the party, he observed defendant pulling Elba Monroy Mojica's hair and hitting her body with his fist. Upon seeing this, Mr. Montenegro and his roommate, Joseluis Castellon, went over and grabbed defendant so he would let her go. Defendant told them to let him go and cursed at them. They released him, and defendant said that he would see them soon. Mr. Montenegro went inside his apartment with some friends and continued drinking, and approximately ten minutes later, defendant returned and was holding two knives. Mr. Montenegro grabbed a plastic bar stool to try to defend himself, but defendant was able to stab Mr. Montenegro on the left side of his back. This version of events was corroborated at trial by Mr. Montenegro's roommate, Mr. Castellon.

The defense, however, presented a different scenario through the testimony of Ms. Mojica, defendant's wife, and Osmel Arencibia-Hernandez, a guest at the party. According to these witnesses, Ms. Mojica and defendant left the party and went to their upstairs apartment for a little while. When she came back down alone, Mr. Montenegro tried to kiss her. Ms. Mojica told Mr. Montenegro "no" and pushed him away; however, he persisted in his attempt. Defendant then proceeded down the stairs, saw what was happening, and told Mr. Montenegro to stop bothering her. During this exchange, Mr. Montenegro hit defendant, and a struggle ensued. Two of Mr. Montenegro's friends joined in the fight, threw defendant on the ground, and kicked him. As this was going on, Mr. Montenegro momentarily left, then returned with a knife, and swung it at defendant, resulting in a cut to defendant's hand. According to Mr. Hernandez, the two men continued to struggle over the knife, falling to the ground at the base of the stairs, and both were covered in blood.

Hugo Galvez, an occupant of the apartment complex who was present at the time of the stabbing, called 9-1-1 and then waited in the parking lot for the police to arrive. When Deputy Richard Wilson of the Jefferson Parish Sheriff's Office arrived, Mr. Galvez relayed that his friend had been stabbed and identified defendant as the perpetrator. Deputy Wilson thereafter detained defendant, who had an open and bleeding cut on his hand. Both defendant and Mr. Montenegro were transported to the hospital for treatment of their injuries.

SUFFICIENCY OF THE EVIDENCE

On appeal, defendant challenges the sufficiency of the evidence used to convict him of aggravated battery. Defendant contends that the evidence presented at trial established that he acted in self-defense, and he further questions the credibility determinations made by the jury.

In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; State v. Neal , 00-674 (La. 6/29/01), 796 So.2d 649, 657, cert. denied , 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002) ; State v. Havies , 16-635 (La. App. 5 Cir. 3/15/17), 215 So.3d 457, 462.

The directive that the evidence be viewed in the light most favorable to the prosecution requires the reviewing court to defer to the actual trier of fact's rational credibility calls, evidence weighing, and inference drawing. This deference to the fact-finder does not permit a reviewing court to decide whether it believes a witness or whether the conviction is contrary to the weight of the evidence.

State v. Caffrey , 08-717 (La. App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied , 09-1305 (La. 2/5/10), 27 So.3d 297. As a result, under the Jackson standard, a review of a criminal conviction record for sufficiency of the evidence does not require the reviewing court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, but whether, upon review of the whole record, any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Jones , 08-20 (La. App. 5 Cir. 4/15/08), 985 So.2d 234, 240.

In making this determination, a reviewing court will not re-evaluate the credibility of witnesses or re-weigh the evidence. State v. Caffrey , supra . Indeed, the resolution of conflicting testimony rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey , 04-85 (La. App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied , 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied , 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). Thus, in the absence of internal contradiction or irreconcilable conflicts with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient to support a conviction. State v. Dixon , 07-915 (La. App. 5 Cir. 3/11/08), 982 So.2d 146, 153, writ denied , 08-987 (La. 1/30/09), 999 So.2d 745.

In the present case, defendant was convicted of aggravated battery, in violation of La. R.S. 14:34. To support a conviction of aggravated battery, the State must prove: 1) the defendant intentionally used force or violence against the victim; 2) the force or violence was inflicted with a dangerous weapon; and 3) the dangerous weapon was used in a manner likely to cause death or great bodily harm. State v. Havies , 215 So.3d at 462. Defendant does not challenge these essential statutory elements, nor does he contest his identification as the perpetrator. Rather, defendant asserts that he established by a preponderance of the evidence that the battery committed upon Mr. Montenegro was in self-defense, and his conviction of aggravated battery should be set aside. He suggests that the force he employed was necessary and reasonable as Mr. Montenegro attempted to slash his face with a knife.

The fact that an offender's conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. La. R.S. 14:18. The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense. La. R.S. 14:19(A). The aggressor or the person who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict. La. R.S. 14:21.

This Court has repeatedly held that when self-defense or the defense of another is claimed by the defendant in a non-homicide case, the defendant has the burden of proof by a preponderance of the evidence that his actions were in self-defense or in defense of others. State v. Howard , 15-473 (La. App. 5 Cir. 12/9/15), 182 So.3d 360, 363 ; State v. Baham , 14-653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558, 567, writ denied , 15-40 (La. 3/24/16), 190 So.3d 1189 ; State v. Bannister , 11-602 (La. App. 5 Cir. 2/14/12), 88 So.3d 628, 635, writ denied , 12-628 (La. 6/15/12), 90 So.3d 1060.

In the present case, the jury was presented with two different versions of events regarding the circumstances of the stabbing. Mr. Montenegro and his roommate, Mr. Castellon, testified that while the birthday party was going on, they observed defendant hitting Ms. Mojica and pulling her hair. Upon seeing this, the two men grabbed defendant to make him stop. According to Mr. Montenegro, defendant told them to let him go, cursed at them, and said he would see them soon. Defendant returned about ten minutes later holding two knives. Mr. Montenegro turned around and grabbed a bar stool to defend himself, but defendant still managed to stab him once in the left side of his back.

Hugo Galvez also testified at trial and corroborated Mr. Montenegro's version of events. Mr. Galvez acknowledged that he was not present during the initial altercation Mr. Montenegro had with defendant; however, he maintained that Mr. Montenegro called him while he was in his apartment and told him that he had just gotten into a fight with defendant and had thrown him on the floor. After Mr. Montenegro relayed to Mr. Galvez that defendant said he was going to get something to kill him, Mr. Galvez proceeded to Mr. Montenegro's apartment. Although defendant was not there, he soon arrived with two knives in his hand and tried to stab Mr. Montenegro. Mr. Galvez provided that Mr. Montenegro tried to defend himself by holding up a stool with both hands, but defendant was able to stab Mr. Montenegro in the back.

In contrast to the testimony presented by the State, defendant presented his version of events indicating that he acted in self-defense against his aggressor, Mr. Montenegro. According to Ms. Mojica and Mr. Hernandez, Mr. Montenegro attempted to kiss Mrs. Mojica on the stairs as she was returning to the party from her apartment. Ms. Mojica told Mr. Montenegro "no" and pushed him away; however, he persisted in his attempt. Defendant then proceeded down the stairs, saw what was happening, and told Mr. Montenegro to stop bothering her. As the two men exchanged words, Mr. Montenegro charged at defendant and hit him, and a struggle ensued. Two of Mr. Montenegro's friends joined in the fight, threw defendant on the ground, and kicked him. As this was going on, Mr. Montenegro momentarily left, returned with a knife, and swung it at defendant, resulting in a cut to defendant's hand. According to Ms. Mojica, defendant's hand was injured when he put his hand out; however, according to Mr. Hernandez, Mr. Montenegro tried to cut defendant's face, and defendant received the cut on his hand when he tried to shield his face. In any event, the two men continued to struggle over the knife, falling to the ground at the base of the stairs, and both were covered in blood. Also, during Ms. Mojica's testimony, she denied that her husband was hitting her or being aggressive with her, and she further denied that Mr. Montenegro was trying to break up a fight.

In their briefs, both defendant and his appointed appellate counsel point out inconsistencies in the State's case and suggest that since defendant's case did not have such discrepancies, the jury should have made credibility determinations in his favor and found him not guilty.

We acknowledge that there were inconsistencies and/or confusion relating to where the stabbing occurred, whether Mr. Galvez was present at the party before the stabbing occurred, and which individuals spoke to Deputy Wilson after the incident. Further, there were inconsistencies between the information given at the time of the incident and the trial testimony. However, the jury was presented with these discrepancies, as well as the language barriers involved with some of the witnesses. In addition, the jurors heard the advantage Mr. Montenegro obtained by the occurrence of this incident. Specifically, at the time of trial, Mr. Montenegro was in the process of obtaining a certain type of visa and admitted that he had no legal status in this country before the incident occurred.

Faced with the conflicting testimony presented by the parties, as well as any inconsistencies in the State's case, the jury found defendant guilty of aggravated battery. By returning the guilty verdict, the jury obviously rejected defendant's account of the events that led to the stabbing of Mr. Montenegro. The law is clear that the credibility of a witness is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. See Bailey , supra . It is not the function of the appellate court to assess credibility or reweigh the evidence. State v. Falcon , 06-798 (La. App. 5 Cir. 3/13/07), 956 So.2d 650, 657.

Viewing the evidence presented at trial in the light most favorable to the prosecution, we find that a rational trier of fact could have determined that the State proved the essential elements of the crime beyond a reasonable doubt and that defendant did not prove by a preponderance of the evidence that the stabbing was done in self-defense. Accordingly, the arguments presented by defendant and his appointed appellate counsel relating to the sufficiency of the evidence are without merit.

DENIAL OF RIGHT TO RECROSS EXAMINATION

In his second pro se assignment of error, defendant contends that the trial court erred in denying defense counsel's request to recross examine Officer Wilson regarding testimony about defendant's position when he stabbed Mr. Montenegro.

On cross-examination, Deputy Wilson testified that when he spoke to Mr. Galvez at the scene of the incident, Mr. Galvez told him that Mr. Montenegro was stabbed from behind. Deputy Wilson further testified that when he spoke to Mr. Montenegro at the hospital, Mr. Montenegro told him that as he was talking to a guest, defendant came up behind him and stabbed him in the upper back area. Deputy Wilson also testified that Mr. Montenegro did not indicate that he was stabbed from the front. Further, when defense counsel asked Deputy Wilson if he thought it was possible that this stabbing came from the front, Deputy Wilson stated, "It was never indicated that the subject stabbed him from the front." Pursuant to further questioning by defense counsel, Deputy Wilson stated, "As they're telling me that side of the story that's what I'm hearing, he stabbed me from the back. Nobody ever said that he was stabbed - the person was standing in front of him and stabbed him in the back."

Thereafter, on redirect by the State, the following exchange occurred:

BY MR. RUSHTON:
Q. Yes. Deputy Wilson, when you spoke with Mr. Galvez, took a statement from him, did you record that statement in any way?
A. No. It was verbal.
Q. And, isn't it true that Mr. Galvez never told you that the victim was stabbed from behind?
A. He never stated that.
Q. And so you didn't reflect that in your report?
A. Write it in the report. Correct.
Q. So Mr. Galvez told you that his friend was stabbed in the back?
A. Correct.
Q. But he did not say from behind, did he?
A. Correct.
Q. And also the victim never stated he was stabbed from behind, is that right?
A. Correct.
Q. He just said he was stabbed in the back?
A. Correct.
Q. He also didn't say he was stabbed from the front?
A. Correct.
Q. You didn't ask him from which direction the defendant stabbed?
A. No, I didn't.

Following the conclusion of redirect, defense counsel approached the bench and the following exchange occurred:

Defense counsel: [The State] just asked the officer if the man said that he was stabbed from behind. The way he asked the question he said, no. The report clearly says, he came up behind him and stabbed him in the back. The report says that. He indicated that he wrote down exactly what the man said. I should be able to question him one more time about that line if that is the truth. If that's correct or not.
The Court: I'm denying your request. It was beyond the scope of cross-examination.
Defense counsel: It wasn't beyond the scope, he mischaracterizes the testimony.
The Court: We can't go back and forth, back and forth.
Defense counsel: But it mischaracterizes the testimony, Judge.
The Court: Well, there was no objection to it while they questioned him.
The State: He had the statement in.
The Court: Request denied.

Defendant now contends that the trial court erred in denying defense counsel's request to recross examine Deputy Wilson, in violation of his constitutional right to confrontation. Defendant specifically wanted to recross Deputy Wilson regarding testimony about defendant's position when he stabbed Mr. Montenegro. He contends that the case hinged upon whether Mr. Montenegro was stabbed from the front or from behind by defendant, and the State's redirect examination of Deputy Wilson elicited a new matter on redirect about which he should have been allowed to question Deputy Wilson.

La. C.E. art. 611(D) provides for recross examination as follows:

Scope of redirect examination; recross examination. A witness who has been cross-examined is subject to redirect examination as to matters covered on cross-examination and, in the discretion of the court, as to other matters in the case. When the court has allowed a party to bring out new matter on redirect, the other parties shall be provided an opportunity to recross on such matters.

Generally, the matter of permitting recross examination is in the sound discretion of the trial judge, and in the absence of some showing of an abuse of that discretion, and resulting prejudice, his ruling will not be disturbed on appeal. State v. Seals , 09-1089 (La. App. 5 Cir. 12/29/11), 83 So.3d 285, 322, writ denied , 12-293 (La. 10/26/12), 99 So.3d 53, cert. denied , 569 U.S. 1031, 133 S.Ct. 2796, 186 L.Ed.2d 863 (2013).

In the present case, we find no abuse of discretion in the trial court's denial of defense counsel's request to recross examine Deputy Wilson regarding defendant's position when he stabbed Mr. Montenegro. The State's redirect examination of Deputy Wilson did not cover a new matter but was only an extension of previous testimony elicited during cross-examination regarding the position of defendant at the time of the stabbing, and further questioning would have only belabored the point. In particular, defense counsel had already elicited testimony from Deputy Wilson regarding Mr. Montenegro being stabbed from behind, and the State, in its redirect examination, was attempting to correct the impression made by Deputy Wilson that Mr. Montenegro was stabbed from behind. Further, defendant has failed to allege or show any prejudice was suffered as a result of being denied the right to recross the witness. Lastly, we note that defendant's constitutional right to confrontation was not violated as he had the opportunity to confront and cross-examine Deputy Wilson. Thus, we find no merit to this assigned error.

ERRORS PATENT REVIEW

We have also reviewed the record for errors patent, according 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. 5th Cir. 1990). Our review reveals no errors that require corrective action.

Accordingly, for the reasons set forth herein, we affirm defendant's conviction and sentence.

AFFIRMED

      The State filed a superseding bill of information additionally charging defendant with two counts of false swearing for purpose of violating public health or safety, in violation of La. R.S. 14:126.1. However, these two counts were not tried with the aggravated battery charge and are not part of the instant appeal.

      It is noted that the State filed a bill of information pursuant to La. R.S. 15:529.1 seeking to have defendant adjudicated a multiple offender. After defendant stipulated to being a second felony offender, the trial court vacated his original sentence of ten years and imposed an enhanced sentence of twenty years imprisonment at hard labor. The habitual offender proceedings are not part of the instant appeal.

      During his testimony, Mr. Montenegro testified that he saw defendant "fighting with the woman." At the time of the incident, Mr. Montenegro did not know the woman's name, but he recognized her face and knew that she lived with defendant in the apartment complex, although he did not know if they were married.


source: Caselaw Access Project

license: Public Domain

text:
    Carlos RUSSELL and DeShannon Russell v. SCOTTSDALE INSURANCE COMPANY, State National Insurance Company, Gulf South Insurance Agency, LLC, Melanie Boudreaux Michael, and ABC Insurance Company
    NO. 18-CA-31
    Court of Appeal of Louisiana, Fifth Circuit.
    November 28, 2018
   COUNSEL FOR PLAINTIFF/APPELLANT, CARLOS RUSSELL AND DESHANNON RUSSELL, Ron A. Austin, Harvey, Catherine H. Hilton, New Orleans, Lillian A. Williams

COUNSEL FOR DEFENDANT/APPELLEE, SCOTTSDALE INSURANCE COMPANY, Pablo Gonzalez, Jennifer R. Kretschmann

COUNSEL FOR DEFENDANT/APPELLEE, STATE NATIONAL INSURANCE COMPANY, Sean P. Mount

COUNSEL FOR DEFENDANT/APPELLEE, GULF INSURANCE AGENCY, LLC AND MELANIE BOUDREAUX MICHAEL, Douglas K. Williams, Alexandra E. Vozzella, Baton Rouge

Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst

WICKER, J.

This appeal, Russell II , is related to a companion case, Russell I , arising out of an alleged July 21, 2012 motor vehicle accident. On July 12, 2013, plaintiffs, Carlos and DeShannon Russell, filed suit against the defendant-driver, Michael Jones, Riley & Carroll Properties (R & C), defendant-driver's employer, and Ernest Riley, the owner of R & C, as well as R & C's alleged liability insurer, State National Insurance Company (SNIC) in the 24th Judicial District Court, docket number 728-857 ("Russell I") . SNIC made payments initially but subsequently denied coverage and defense and filed no responsive pleadings on behalf of Mr. Jones, Mr. Riley, or R & C. At some point in time, counsel for SNIC reported to plaintiffs' counsel that "SNIC had discovered that, at the time of the accident in question, Scottsdale Insurance Company carried general liability insurance coverage for Jones, Riley, and R & C." See Carlos Russell and DeShannon Russell v. Michael G. Jones, et al. , 17-585 (La. App. 5 Cir. 3/12/18), 239 So.3d 1083, 1085. Based on this information, plaintiffs amended their petition to include Scottsdale Insurance Company as a named defendant.

On June 11, 2015, in Russell I , plaintiffs presented evidence and obtained a default judgment against defendants, Mr. Jones, Mr. Riley, and R & C, in the amount of $154,255.72. On May 5, 2016, SNIC filed a motion to set aside the default judgment, contending that the judgment was an absolute nullity because SNIC- who plaintiffs had identified as a responsible insurer, a named defendant, and an adverse party in the litigation-was never served with notice of the hearing on the motion to confirm the default judgment or of the default judgment as it purports is required under La. C.C.P. art. 1913.

Thereafter, on October 28, 2016, plaintiffs filed a second suit against defendants SNIC and Scottsdale, as well as Mr. Riley's insurance broker Gulf South Insurance Agency and its agent Michelle Michael Boudreaux in the 24th Judicial District Court, docket number 766-067 ("Russell II "). In plaintiffs' petition in Russell II , they contended that Mr. Riley previously executed an Assignment of Rights, assigning to plaintiffs all claims, including bad faith claims, against Scottsdale, SNIC, Gulf South Insurance Agency, and Ms. Boudreaux related to the handling of the insurance claim arising from the July 21, 2012 accident.

In response, defendants filed an exception of no right of action, challenging the validity of the Assignment of Rights and asserting that plaintiffs had no right to bring claims against them on behalf of Mr. Riley and/or R & C. On August 30, 2017, following an August 22, 2017 contradictory hearing, the trial judge granted the exception of no right of action, declaring the Assignment of Rights an absolute nullity and dismissing plaintiffs' petition in Russell II with prejudice. The August 30, 2017 judgment is the judgment at issue in this appeal.

Subsequently, on December 5, 2017, in Russell I , the trial judge granted SNIC's motion to set aside the default judgment and vacated the June 11, 2015 default judgment. Plaintiffs appealed that judgment to this Court and this Court dismissed the appeal for lack of appellate jurisdiction. See Russell v. Jones, et al. , 18-160 (La. App. 5 Cir. 11/14/18), --- So.3d ----, 2018 La. App. LEXIS 2294.

Since the dismissal of the appeal in Russell I , plaintiffs have filed in this Court a Motion to Dismiss the Appeal in Russell II , stating that because the underlying default judgment has been set aside, the Assignment of Rights arising out of the default judgment is not valid and the issue before the Court on appeal has become moot. In their motion to dismiss, plaintiffs request that this Court dismiss the pending appeal in Russell II . Accordingly, considering plaintiffs' Motion to Dismiss, we grant plaintiffs' motion and dismiss this appeal.

APPEAL DISMISSED

      Plaintiffs also named their own UM carrier, Progressive Paloverde Insurance Company.

      La. C.C.P. art. 1913 in part provides:
      A. Except as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.
      B. Notice of the signing of a final default judgment against a defendant on whom citation was not served personally, or on whom citation was served through the secretary of state, and who filed no exception, answer, or other pleading, shall be served on the defendant by the sheriff, by either personal or domiciliary service, or in the case of a defendant originally served through the secretary of state, by service on the secretary of state.
      C. Except when the service is required under Paragraph B of this Article, notice of the signing of a final default judgment shall be mailed by the clerk of court to the defendant at the address where personal service was obtained or to the last known address of the defendant.
      D. The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.


author: Judge Terri F. Love

text:
    Louis BAILEY v. Nidtreas Clayton BAILEY
    NO. 2018-CA-0521
    Court of Appeal of Louisiana, Fourth Circuit.
    November 28, 2018
    Leonard K. Fisher III, LAW OFFICE OF LEONARD K. FISHER, III, 500 North Causeway Boulevard, Metairie, LA 70001, COUNSEL FOR PLAINTIFF/APPELLANT, LOUIS BAILEY
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Tiffany G. Chase )
   Judge Terri F. Love

This appeal arises from the trial court's ruling that the parties abandoned their divorce proceeding. The plaintiff contends that the trial court erroneously held that the parties had not taken any action in their divorce proceeding for three years since the preliminary default was granted.

We find that the parties' divorce proceeding was abandoned on its face, as no steps towards the prosecution were taken in over three years. Additionally, no exceptions to abandonment apply. The trial court did not err by finding that the divorce proceeding was abandoned and dismissing the petition. The judgment of the trial court is affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Louis Bailey and Nidtreas Clayton Bailey were married on December 31, 2002. On April 25, 2012, Mr. Bailey filed a Petition for Divorce from Ms. Clayton based on La. C.C. art. 103(1). Mr. Bailey alleged that the couple had been living separate and apart since June 31, 2009. Ms. Clayton signed a Waiver and Acceptance of Service on July 10, 2012, which was filed into the record on August 7, 2012. Mr. Bailey filed a Motion for Entry of Default Judgment. On October 9, 2012, the trial court granted an order of default judgment on the divorce.

No further action was taken in the matter until Ms. Clayton filed a Petition for Partition on May 6, 2016. Ms. Clayton sought to partition the home located at 7610 Inlet Lane in New Orleans. During the proceedings on the Petition for Partition, the trial court noted that a final divorce decree was missing from the record. Thereafter, Mr. Bailey filed a Motion to Acknowledge Divorce Judgment. The trial court found that the Petition for Divorce was abandoned pursuant to La. C.C.P. art. 561, denied the motion, and dismissed Mr. Bailey's divorce action. Mr. Bailey's appeal followed.

STANDARD OF REVIEW

"Whether an action has been abandoned is a question of law; thus the standard of review of the appellate court is simply to determine if the trial court's decision was correct." Heirs of Simoneaux v. B-P Amoco , 13-0760, p. 3 (La. App. 4 Cir. 2/5/14), 131 So.3d 1128, 1130.

ABANDONMENT

Mr. Bailey contends that the trial court erred by finding that his divorce action was abandoned.

Mr. Bailey filed a Petition for Divorce pursuant to La. C.C. art. 103(1). Ms. Clayton then filed a Waiver and Acceptance of Service approximately two months after the Petition for Divorce was filed. Accordingly, Louisiana statutory law provides that "[w]hen a defendant in an action for divorce under Civil Code Article 103(1), ... acknowledges receipt of a certified copy of the petition and waives formal citation, service of process, all legal delays, notice of trial, and appearance at trial, a preliminary default may be entered against the defendant." La. C.C.P. art. 1701(B). Thereafter, Mr. Bailey filed the Motion for Entry of Default Judgment pursuant to La. C.C.P. art. 1701, which was granted. However, the preliminary default granted by the trial court was never confirmed.

"A preliminary default must be confirmed by proof of the demand that is sufficient to establish a prima facie case and that is admitted on the record prior to the entry of a final default judgment." La. C.C.P. art. 1702(A). Following the trial court's October 9, 2012 preliminary default judgment, the record is void of activity until the May 6, 2016 Petition for Partition, except for the January 10, 2014 Notice of Change of Address by Mr. Bailey's counsel. As such, we must determine whether the divorce action was abandoned.

The controlling statutory provision on abandonment, La. C.C.P. art. 561, provides:

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
(a) Which has been opened;
(b) In which an administrator or executor has been appointed; or
(c) In which a testament has been probated.
(2) Terminated by Acts 2007, No. 361, § 1, eff. Aug. 26, 2010.
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
(4) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriff's service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).
(5) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriff's service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk's mailing of the order of denial.
(6) The provisions of Subparagraph (2) of this Paragraph shall become null and void on August 26, 2010.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.
C. An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court.

Regarding interpretation, the Louisiana Supreme Court opined:

[a]rticle 561 has been construed as imposing three requirements on plaintiffs. First, plaintiffs must take some "step" towards prosecution of their lawsuit. In this context, a "step" is defined as taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step.

Clark v. State Farm Mut. Auto. Ins. Co. , 00-3010, pp. 5-6 (La. 5/15/01), 785 So.2d 779, 784. " Article 561 provides that abandonment is self-executing; it occurs automatically upon the passing of three-years without a step being taken by either party, and it is effective without court order." Id. , 00-3010, p. 6, 785 So.2d at 784.

"The jurisprudence has uniformly held that La. C. Civ. Pro. art. 561 is to be liberally construed in favor of maintaining a plaintiff's suit." Id. , 00-3010, p. 8, 785 So.2d at 785. The Louisiana appellate courts and the Supreme Court have declined to rigidly enforce the abandonment provisions based on "technical formalities."

Id. , 00-3010, p. 9, 785 So.2d at 786. "In sum, abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned." Id.

This Court previously found that a divorce action was not abandoned because there was a lack of clear intent. Kambur v. Kambur , 583 So.2d 1213, 1213 (La. App. 4th Cir 1991). We found the following:

The parties have been separated since the time suit was filed in 1977. In addition to living separate and apart for the last 14 years, the community has been partially partitioned. We agree with Mr. Kambur this is not the type of case envisioned by article 561. There was no clear intent to abandon the divorce proceeding in the instant case. Both parties seemed to be working towards dissolving the marriage. Furthermore, the only objective a dismissal of this proceeding could serve would be to give June Kambur a later termination date of the community. Based on law and principle, we find that article 561 was misapplied to these facts.

Id. , 583 So.2d at 1216. Further, the Fifth Circuit found "that a motion to proceed in forma pauperis constitutes a 'step' in the prosecution of the plaintiffs' action, such as would preclude the application of abandonment under LSA-C.C.P. Art. 561." Acosta v. Hepplewhite Home, Inc. , 450 So.2d 770, 772 (La. App. 5th Cir. 1984). Additionally, this Court held that a request to reissue service was a step towards the prosecution if the request appeared in the record. Eweni v. Skate World, Inc. , 12-0338, p. 3 (La. App. 4 Cir. 7/18/12), 100 So.3d 862, 864. Also, this Court found that setting a status conference and a telephone conference call constituted a step in the prosecution. Simoneaux , 13-0760, p. 4, 131 So.3d at 1131. See also Dean v. Delacroix Corp. , 12-0917, p. 8 (La. App. 4 Cir. 12/26/12), 106 So.3d 283, 288 (finding that the date a continuance was granted began the tolling period for La. C.C.P. art. 561 ). "However, ... it is well established that motions to withdraw, enroll or substitute counsel are not considered formal steps in the prosecution as contemplated by La. C.C.P. art. 561." London Livery, Ltd. v. Brinks , 08-0230, p. 2 (La. App. 4 Cir. 12/10/08), 3 So.3d 13, 15. See also Chevron Oil Co. v. Traigle , 436 So.2d 530, 532-33 (La. 1983) ("Such a motion grants to counsel the right to take 'steps' toward prosecution of his client's case, but does not itself constitute such a 'step.' ").

In the present matter, the record is void of activity after October 9, 2012, except for the Notice of Change of Address. We liken the Notice of Change of Address to the filing of a motion to withdraw, enroll, or substitute counsel, which is not considered a step toward the prosecution. Accordingly, as no formal action occurred in this matter from October 9, 2012, to May 6, 2016, the divorce action was abandoned on its face.

Next, we must determine whether an exception to the abandonment rule applies. Juengain v. Tervalon , 17-0155, p. 7 (La. App. 4 Cir. 7/26/17), 223 So.3d 1174, 1180. The exceptions are as follows:

(1) a plaintiff-oriented exception, based on contra non valentem , that applies when failure to prosecute is caused by circumstances beyond the plaintiff's control; and (2) a defense-oriented exception, based on acknowledgment, that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned.

Clark , 00-3010, p. 7, 785 So.2d at 784-85. "These two exceptions reflect the distinction the jurisprudence has drawn between the post-abandonment actions of a plaintiff and a defendant." Juengain , 17-0155, p. 8, 223 So.3d at 1181. A plaintiff's actions taken post-abandonment will not serve to counteract abandonment; while a defendant's actions post-abandonment "may result in a waiver." Id.

Mr. Bailey contends that he was under the assumption that his divorce was finalized. However, nothing in the record indicates that Mr. Bailey was unable to seek a confirmation of the preliminary default judgment. Conversely, post-abandonment, Ms. Clayton filed a Petition for Partition on May 6, 2016. As such, we shall examine whether the second exception of waiver applies.

"The defendant's submission for decision of an already abandoned case precludes him from raising the claim of abandonment." Chevron , 436 So.2d at 534. "By allowing a suit to be submitted for decision, the defendant clearly consents to have the matter resolved upon its merits." Id.

Ms. Clayton's Petition for Partition refers to her as Mr. Bailey's "wife," but also categorizes the community of acquets and gains as that that "formerly" existed. The pleading also referenced the date of the filing of the Petition for Divorce, but no divorce date. Subsequently, Ms. Clayton's Opposition to Motion to Continue Deadline to File Descriptive List stated that she and Mr. Bailey "ended their matrimony regime" and that "several years has passed since the termination of marriage." We find that, after reviewing the pleadings related to the Petition for Partition, it is clear that the parties believed they were divorced. However, in Ms. Clayton's August 25, 2017 Motion for Exclusive Use or in Alternative Rent, she notes that "[t]he Judgment of Divorce was never filed." This pleading was filed a day after the trial court stated, at a hearing on discovery and a previous rental reimbursement filing, that the record did not contain a confirmation of the preliminary default judgment of divorce. Ms. Clayton was present, but unrepresented at the hearing on the Motion to Acknowledge Divorce Judgment. Ms. Clayton filed a Motion to Continue and Reset the hearing in order to obtain counsel. However, the trial court proceeding with the Motion to Acknowledge Divorce Judgment.

We do not see Ms. Clayton's filing of the Petition for Partition as a submission for a decision in an abandoned case. The partition is a separate proceeding wherein she was not requesting that the trial court rule upon the divorce action. While we are directed to balance policy and liberal construction with technicalities, we decline to set a precedent that parties can obtain a preliminary default judgment, take absolutely no action for over three years, and come into court with a viable divorce action. Such a precedent would encourage lackadaisical behavior on the part of attorneys and clients alike. This Court also notes that Ms. Clayton's position on the Motion to Acknowledge Divorce Action is not contained in the record. Accordingly, we find that the trial court did not err by finding that the divorce action was abandoned and affirm.

DECREE

For the above-mentioned reasons, we find Mr. Bailey's divorce action was abandoned on its face, as no steps were taken toward the prosecution in over three years. Further, Ms. Clayton did not waive abandonment by filing the Petition of Partition. As such, we find that the trial court did not err by finding that Mr. Bailey's divorce action was abandoned and dismissing his Petition for Divorce. The judgment of the trial court is affirmed.

AFFIRMED

CHASE, J., DISSENTS

CHASE, J., DISSENTS

I agree with the majority's finding that the divorce action was abandoned on its face, as no formal action occurred from October 9, 2012, the date the trial court granted an order of default judgment on the divorce, to May 6, 2016, the date on which Ms. Clayton filed her petition for partition. However, I dissent from the majority's determination that Ms. Clayton's action, in filing the petition for partition, did not constitute a submission for a decision in the divorce action, as they were two separate proceedings.

I find Ms. Clayton's post-abandonment action in seeking partition waived her right to later assert the divorce action was abandoned, as they are part of the same proceeding. "[A] proceeding to partition the community of acquets and gains arises out of and is essential and [concomitant] to the separation/divorce." Kambur v. Kambur , 583 So.2d 1213, 1214 (La.App. 4 Cir. 1991). Resolution of the divorce action is "inextricably bound" with the partition action. Id. Ms. Clayton has taken actions inconsistent with intent to treat the case as abandoned. Therefore, she waived her right to assert the divorce action is abandoned.

From the record before us, neither party intended to abandon the divorce action, as both parties believed they were already divorced. Dismissing the divorce action would serve no other purpose than to achieve "[a] later termination date of the community." Id. at 1216.

For the foregoing reasons, I would reverse the trial court's judgment dismissing Mr. Bailey's petition for divorce.

      This is the date contained on the Joint Detailed Descriptive List. The Petition for Divorce states that the couple was married on December 31, 2009, which is inaccurate based on Mr. Bailey's representation that the couple was living separate and apart since June 31, 2009.

      The only document contained in the record between the default judgment and the Petition for Partition was a Notice of Change of Address submitted by Mr. Bailey's attorney on January 10, 2014.


author: Judge Dale N. Atkins

text:
    STATE of Louisiana v. Danny NELSON
    NO. 2018-K-0975
    Court of Appeal of Louisiana, Fourth Circuit.
    November 29, 2018
    Leon Cannizzaro, DISTRICT ATTORNEY, Donna Andrieu, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEYS, Parish of Orleans, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR RELATOR/STATE OF LOUISIANA
    Gregory Q. Carter, The G. Carter Law Firm, 1100 Poydras Street, Suite 2990, New Orleans, LA 70163, COUNSEL FOR RESPONDENT/DEFENDANT
    (Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Dale N. Atkins )
   Judge Dale N. Atkins

The State seeks review of the trial court's October 18, 2018 ruling that found no probable cause and granted Defendant, Danny Nelson's ("Defendant") motion to suppress evidence and statement. We grant the writ and reverse the trial court's ruling.

On February 5, 2018, Defendant was charged by bill of information with possession of a firearm by a convicted felon; possession of marijuana, second conviction; and possession of drug paraphernalia, violations of La. R.S. 14:95.1, La. R.S. 40:966(E)(2), and La. R.S. 40:1023, respectively. Defendant appeared for arraignment on February 23, 2018 and entered a plea of not guilty.

Defense counsel filed a number of written pre-trial motions, including a motion to suppress statement, motion to suppress evidence, and a motion for preliminary examination. After a hearing conducted on October 18, 2018, the trial court granted the motion to suppress statement, the motion to suppress evidence, and found insufficient probable cause to substantiate the charges against Defendant. The State objected and noticed its intent in open court to seek a supervisory writ of the trial court's ruling and filed a written Notice of Intent to File Writ. The State's writ was timely filed.

At the October 4, 2018 hearing, the State presented the testimony of Louisiana Division of Probation and Parole Officer, Francisco Dean ("Off. Dean"). Off. Dean reported that he was supervising the probation of Defendant's brother, Quendrick Bailey ("Bailey"). Bailey had been at the scene of a crime after curfew hours and had reported to Off. Dean's office to admit to violating his probation. Bailey also admitted to possessing and smoking marijuana. Based upon the information provided by Bailey, Off. Dean detained Bailey and made the decision to conduct a residence check of Bailey's home pursuant to La. C.Cr.P. art. 895 (A)(13)(a) and relative to the conditions of Bailey's probation. Off. Dean and other officers, all of whom were in uniform, arrived at Bailey's residence with Bailey, and knocked on the door. Defendant answered the door and allowed the officers inside but did not specifically give consent to search the residence. As he entered, Off. Dean smelled a strong odor of burned marijuana in the residence. Defendant was therefore detained. While conducting a protective sweep of the residence for officer safety, marijuana was observed in plain view in Defendant's bedroom on his bed. Defendant told the agents the bedroom was his, admitting he lived in the residence with Bailey. Having learned that Defendant was also on probation, Off. Dean acquired the name of Defendant's probation officer, Kenny Temple, and requested that he come to Defendant's residence. Once Defendant's probation officer was present, a search of Defendant's room was conducted. A gun box with ammunition was found and a marijuana grinder and marijuana were in plain view, all located in Defendant's bedroom. Upon finding a .38 caliber loaded revolver in the bathroom, Off. Dean advised Defendant of his rights and signed a written waiver of rights form. Defendant stated the gun belonged to him and also signed a written statement indicating the gun did not belong to Bailey. Defendant was transported to the Seventh District Station where he was questioned by ATF agents and admitted to finding the firearm near his residence and again stated that the gun belonged to him.

On October 18, 2018, the trial court ruled as follows:

After reviewing the factors, this Court finds that Agent Dean exceeded his authority and acted unreasonably in conducting the search of the defendant's residence. Here the scope and justification of Agent Dean's intrusion was unreasonable. Agent Dean had reasonable suspicion to believe that his probationer, Mr. Bailey, had been engaged in criminal activity, when Mr. Bailey was seen out past his curfew.
Under certain circumstances, and an informer's tip, can provide reasonable suspicion. Generally, there must be some corroboration of that tip. However, Agent Dean confirmed the suspicion when Mr. Bailey, himself, admitted, while at the Probation and Parole office, that he violated his probation by breaking curfew and smoking marijuana on that day.
As a result of Mr. Bailey's confession, Agent Dean detained Mr. Bailey. And he was not free to leave the office. Considering that Mr. Bailey was detained and not free to leave, Agent Dean should have obtained a warrant for Mr. Bailey's residence.
No exigent circumstances existed that Agent Dean relocated and had to relocate to Mr. Bailey's residence without a warrant. There is no evidence that Mr. Bailey was dangerous or that contraband was located in the residence that would have been removed or destroyed that a warrant could be obtained.
Thus, a warrantless search of the residence was unreasonable under the circumstances. And it was an invasion of Mr. Nelson's privacy, under the Fourth Amendment of the Louisiana Constitution. Even if the Court were to find that Agent Dean was permitted to conduct the warrantless search of the residence, based on Mr. Bailey's admitted violation-- which it does not -- Agent Dean exceeded his authority when he entered the defendant's bedroom.

The trial court is afforded great discretion when ruling on a motion to suppress and its ruling will not be disturbed absent an abuse of that discretion. State v. Wilder , 2009-2322, p. 2 (La. 12/18/09), 24 So.3d 197, 198. "[A]ppellate courts review trial court rulings under a deferential standard with regard to factual and other trial determinations, while legal findings are subject to a de novo standard of review." State v. Wells , 2008-2262, p. 4 (La. 7/6/10), 45 So.3d 577, 580.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. U.S. CONST. amend. IV ; LA. CONST. art. 1, § 5 ; State v. Francis , 2010-1149, p. 4 (La. App. 4 Cir. 2/16/11), 60 So.3d 703, 708. Therefore, when evidence is seized without a warrant as required by the federal and state constitutions, the burden is on the state to show that the search was justified by some exception to the warrant requirement. La. C.Cr.P. art. 703(D) ; State v. Anderson , 2006-1031, p. 2 (La. App. 4 Cir. 1/17/07), 949 So.2d 544, 546. "The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.' " United States v. Knights , 534 U.S. 112, 118-19, 122 S.Ct. 587, 591, 151 L.Ed.2d 497 (2001) (citing Wyoming v. Houghton , 52 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) ). "In assessing the governmental interest, it must be remembered that the very assumption of probation is that the probationer is more likely than others to violate the law." Id. at p. 113, 122 S.Ct. at 588 (citing Griffin v. Wisconsin , 483 U.S. 868, 880, 107 S.Ct. 3164, 3172, 97 L.Ed.2d 709 (1987) ). "The State's interest in apprehending criminal law violators, thereby protecting potential victims, may justifiably focus on probationers in a way that it does not on the ordinary citizen." Id. "Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled." Id. (citations omitted). See also Griffin v. Wisconsin , 483 U.S. at 874, 107 S.Ct. at 3169 (holding that probationers do not enjoy "the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrictions."). "Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." Knights , 534 U.S. at 119, 122 S.Ct. at 591.

Acknowledging the great governmental interest involved, the U.S. Supreme Court has recognized that a warrant requirement imposed during supervision of a probationer "would interfere to an appreciable degree with the probation system, setting up a magistrate rather than the probation officer as the judge of how close a supervision the probationer requires." Griffin, 483 U.S. at 876, 107 S. Ct. at 3170. A warrant requirement would prevent probation officials from responding quickly to evidence of misconduct and "reduce the deterrent effect that the possibility of expeditious searches would otherwise create." Id. The Griffin Court thus found a warrantless search of a probationer's residence to be a justifiable departure from the usual warrant and probable cause requirements of the Fourth Amendment when conducted pursuant to the rules and regulations of the relevant state agency which oversees probationers. Id. at 880, 107 S. Ct. at 3172.

A probationer is not, however, subject to the unrestrained power of the authorities, nor may a search of a probationer be a subterfuge for a police investigation. State v. Thomas , 96-2006, p. 2 (La. App. 4 Cir. 11/06/96), 683 So.2d 885, 886. A warrantless search of a probationer's property may be permissible when:

[I]t is conducted when the officer believes such a search is necessary in the performance of his duties, and must be reasonable in light of the total atmosphere in which it takes place. In determining the reasonableness of a warrantless search, [an appellate court] must consider (1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it, and (4) the place in which it was conducted.

Id. at pp. 2-3, 683 So. 2d at 886 (citing State v. Malone , 403 So.2d 1234, 1238 (La.1981) ). Although the State still bears the burden of proof because the search was conducted without a warrant, when the search is conducted for probation violations, the State's burden will be met when it establishes that there was reasonable suspicion that criminal activity was occurring. Id. (emphasis added). See also, State v. Marino , 2000-1131, p. 5 (La. App. 4 Cir. 6/27/01), 804 So.2d 47, 52 (holding that a State's burden of proof when conducting a search without a warrant for probation violations is satisfied when the State establishes that there was a reasonable suspicion that criminal activity was occurring). This reasonable suspicion standard for a warrantless search of a probationer is consistent with La. C.Cr.P. art. 895(A)(13)(a), which provides, as a condition of probation, that a defendant agree to searches by the probation officer assigned to him, without a search warrant, when the officer has reason to believe that the person is involved in criminal activity. Additionally, La. C.Cr.P. art. 895(A)(4) provides, as a condition of probation, that the defendant "[p]ermit the probation officer to visit him at his home or elsewhere."

In the instant case, the officers were within the scope of their duty to visit Bailey's residence. Off. Dean had reliable information provided by Bailey that Bailey was smoking marijuana and had been at the scene of a crime after curfew hours. Given this information, Off. Dean was reasonable in believing Bailey's living quarters would likely contain contraband and in conducting a search of his residence to see whether narcotics were present. Off. Dean thus had the legal authority to enter the residence to conduct a parole search pursuant to Art. 895(A)(13)(a). Once Off. Dean smelled marijuana after Defendant opened the door, he was justified in conducting a protective sweep of the residence to ensure officer safety. Moreover, the search of the residence was lawfully conducted by Defendant's probation officer, who had been called to the scene. Because both Defendant and Bailey were on probation, they each had a diminished right to privacy in their residence and no additional warrant was required. La. C.Cr.P. art. 895(A)(13)(a).

For the foregoing reasons, we grant the State's writ application and we reverse the ruling of the trial court finding no probable cause and granting Defendant's motion to suppress evidence and statement.

WRIT GRANTED; REVERSED

      La. C.Cr. P. art. 895 sets forth the Conditions of Probation. Art. 895(A)(13)(a) provides:
      A. When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following. That the defendant shall:
      (13)(a) 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 or parole officer assigned to him or by any probation or parole officer who is subsequently assigned or directed by the Department of Public Safety and Corrections to supervise the person, whether the assignment or directive is temporary or permanent, 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.

      Bailey had agreed in writing that he understood and would obey the conditions of probation, including agreeing to a search of his person, property, place of residence, vehicle and personal effects, with or without a warrant.


author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Royal STEVENS
    NO. 18-KA-344
    Court of Appeal of Louisiana, Fifth Circuit.
    December 05, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, ROYAL STEVENS, Bertha M. Hillman
    DEFENDANT/APPELLANT, ROYAL STEVENS, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and John J. Molaison, Jr.
   CHEHARDY, C.J.

On appeal, defendant's appointed appellate counsel has filed an Anders brief, asserting that there is no basis for a non-frivolous appeal. Further, defendant filed a pro se supplemental brief. For the following reasons, we affirm defendant's convictions and sentences and grant counsel's motion to withdraw.

Facts and Procedural History

Because defendant pled guilty, the facts of this case were not fully developed at a trial. Nevertheless, the record before this Court reveals that, on or about May 15, 2015, in Jefferson Parish, Royal Stevens, defendant herein, violated La. R.S. 14:64 and La. R.S. 14:64.3(A), in committing four counts of armed robbery by robbing Kelly Waggenspack, Deondria Young, Regina Crabtree, and Michael Harleton while armed with a firearm. During the plea colloquy, the State provided the following factual basis, to which defendant admitted:

If the state would have proceeded to trial in case 15-3263, it would have proven beyond a reasonable doubt that the defendant Royal Stevens, while in Jefferson Parish on May 15th, 2015, did violate Louisiana Revised Statute 14:64 four times in that he committed the armed robbery of Deondria Young, Regina Crabtree, Michael Harleton and Kelly Waggenspack, in violation of Louisiana Revised Statute 14:64.3, in that he was armed with a firearm.

On March 8, 2017, the Jefferson Parish District Attorney filed an amended bill of information charging defendant with four counts of armed robbery, in violation of La. R.S. 14:64 and La. R.S. 14:64.3(A). On March 14, 2017, defendant withdrew his pleas of not guilty and pled guilty as charged to all four counts. In accordance with the plea agreement set forth in the record, the trial court sentenced defendant, for each count of armed robbery, to thirty-five years at hard labor with a consecutive five-year enhancement for use of a firearm, without benefit of parole, probation, or suspension of sentence, to run concurrently.

On March 26, 2018, defendant filed an Application for Post-Conviction Relief ("APCR"), which the trial judge construed as a request for an out-of-time appeal and granted. This appeal follows.

Anders

Under the procedure adopted by this Court in State v. Bradford , appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders , supra , and State v. Jyles , appointed counsel requests permission to withdraw as counsel of record.

In Anders , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by "a brief referring to anything in the record that might arguably support the appeal" so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw."

In Jyles , the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pre-trial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration."

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing legal points identified by the court, or grant the motion and appoint substitute appellate counsel.

Discussion

Defendant's appellate counsel asserts that, after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel avers that, before accepting defendant's guilty plea to four counts of armed robbery with a firearm, the trial court explained to defendant the legal consequences of his pleas and the rights necessary to ensure a knowing and intelligent waiver of rights. She also states that the trial court informed defendant of the actual sentences that would be imposed. Further, defendant was sentenced in conformity with the plea agreement. As such, counsel maintains that defendant is now restricted by law from appealing his sentences.

The State responds that a review of counsel's brief and the record shows that counsel has "cast an advocate's eye" over the record and properly concluded that there are no non-frivolous issues to raise on appeal. It also responds that counsel has properly complied with the procedure set forth in Anders and Jyles and should be granted permission to withdraw.

The State notes that a review of the Boykin colloquy shows that the trial court properly and thoroughly explained to defendant the rights he was waiving by pleading guilty. It further notes that the record indicates that the trial court ensured that defendant understood what his sentences would be should he enter his guilty pleas. The State asserts that the record shows that defendant executed a Boykin form detailing his rights and was represented by counsel during that proceeding. It agrees with counsel that defendant's sentencing was in accordance with the terms of his plea agreement.

Appellate counsel has filed a motion to withdraw as attorney of record which states she has prepared an Anders brief and notified defendant of the filing of the motion and his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until July 31, 2018, to file a pro se supplemental brief. Defendant filed a pro se brief on August 20, 2018, and his assigned errors are reviewed below.

Most importantly, our independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal. First, the amended, superseding bill of information in this case properly charged defendant and plainly, concisely, and definitely states the essential facts constituting the offenses charged. It also sufficiently identifies defendant and the crimes charged. See generally , La. C.Cr.P. arts. 464 -66.

Next, the minute entries and commitment reflect that defendant and his counsel were present at each stage of the proceedings, including his arraignment, his guilty plea proceeding, and his sentencing. As such, there are no appealable issues arising out of defendant's presence, or lack thereof.

Further, defendant pled guilty as charged to the amended superseding bill of information. Where, as here, a defendant enters unqualified guilty pleas, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter , 05-697 (La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664.

Furthermore, defendant did not reserve his right to appellate review of any pre-trial rulings under State v. Crosby , 338 So.2d 584 (La. 1976). Although defendant filed omnibus pre-trial motions, the trial judge did not rule on any of those motions prior to defendant pleading guilty. When a defendant does not object to the trial court's failure to hear or rule on a pre-trial motion prior to pleading guilty, the motion is considered waived. See State v. Corzo , 04-791 (La. App. 5 Cir. 2/15/05), 896 So.2d 1101, 1102.

Further, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain, or what he justifiably believes was a plea bargain, and that bargain is not kept. Id.

Our review reveals no constitutional infirmity in defendant's guilty pleas. During the guilty plea proceeding, defendant was informed in writing through the waiver of rights form and verbally by the trial judge that he was charged with and pleading guilty to four counts of armed robbery with a firearm. Further, on the waiver of constitutional rights form and during the colloquy with the trial judge, defendant was advised of his Boykin rights - his right to a trial, his right to confrontation, and his privilege against self-incrimination. On the waiver of rights form, defendant initialed next to each of these rights and signed the form, indicating that he understood that he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood that he was waiving these rights.

In this case, the waiver of rights form reflects that, at the time of his guilty plea, defendant was 40 years old, had obtained a GED, and could read and write the English language. The waiver of rights form was signed by defendant, his counsel, and the trial judge. Defendant acknowledged on the record that he had gone over the form with his counsel and understood it.

Additionally, during the colloquy and on the waiver of rights form, defendant was advised that, if he was convicted of armed robbery, the maximum sentence he would face was ninety-nine years at hard labor. Further, defendant was advised on the waiver of rights form and by the trial judge of the actual sentence -- thirty-five years with a five year enhancement -- that would be imposed if defendant pled guilty.

Although the trial judge did not inform defendant of the minimum sentences on each count, this is harmless error. La. C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. "Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea." La. C.Cr.P. art. 556.1(E). Violations of La. C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. State v. Craig , 10-854 (La. App. 5 Cir. 5/24/11), 66 So.3d 60. Here, the trial judge's failure to inform defendant of the minimum sentence of not less than ten years did not prejudice defendant because he knew the sentences he would receive, and he received those sentences. The advisement of the agreed upon sentences is sufficient for compliance with La. C.Cr.P. art. 556.1. Id. at 64.

During this proceeding, defendant stated that he had not been forced, coerced, or threatened to enter a guilty plea. Defendant indicated that he was satisfied with the representation of his attorney and understood the nature of the offense. Defendant further indicated that he understood the possible legal consequences of pleading guilty, and wished to plead guilty at that time. After a thorough examination, the trial judge accepted defendant's guilty plea as knowingly, intelligently, freely, and voluntarily tendered.

Furthermore, defendant's sentences were imposed pursuant to the plea agreement set forth in the record. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which is set forth in the record at the time of the plea. State v. Fifi , 12-158 (La. App. 5 Cir. 10/16/12), 102 So.3d 970, 974 ; State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Further, defendant's sentences fall within the statutory sentencing ranges. See La. R.S. 14:64 ; La. R.S. 14:64.3. In addition, defendant's plea agreement was beneficial to him in that the State agreed not to file a multiple bill, which could have increased defendant's sentencing exposure.

Because appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and our independent review of the record supports counsel's assertion, we grant appellate counsel's motion to withdraw.

Pro se Assignments of Error

Defendant argues that his guilty pleas were not knowingly, intelligently, and voluntarily made because they were induced by a multiple bill of information that violated federal and state constitutional prohibitions against double jeopardy. He contends that this is not a case where four separate and distinct armed robberies occurred. Rather, defendant argues that this was the single robbery of a pharmacy where the perpetrators demanded money and narcotics from the pharmacy's cashier. He notes that, in the process, other employees present were ordered to assist the cashier in placing the narcotics inside of cardboard boxes. Defendant states that La. R.S. 14:64 provides that armed robbery is the taking of something of value from another. He maintains that only one count of armed robbery was committed since no separate or distinct items of value were taken from the other three employees.

Further, defendant argues that the evidence used to prove the "thing of value" element (cash and narcotics) cannot be the exact same evidence used to obtain a conviction in the other three counts. He contends that the subsequent three counts of the bill of information charge violations of the same statute. Defendant also contends that elements and facts of each separate count are identical to those in all other counts and that each count recites the same prohibited conduct. He submits that the illegal charging of four separate counts based on a single offense wrongfully exposed him to a penalty three times worse than that which he could have legally received.

Defendant asserts that the double jeopardy violation incorrectly led him to believe that he was minimizing his risk exposure by pleading guilty. He argues that instead of risking the possibility of four consecutive ninety-nine year sentences, he opted to plead guilty and receive four concurrent forty-year sentences. Defendant contends that but for the illegal bill of information, he would not have pled guilty and would have insisted on going to trial.

La. C.Cr.P. art. 591 provides, in pertinent part: "[n]o person shall be twice put in jeopardy of life or liberty for the same offense ...." The Fifth Amendment to the United States Constitution, as well as Article 1, § 15 of the Louisiana Constitution, prohibit placing a person twice in jeopardy for the same offense. State v. Fairman , 15-67 (La. App. 5 Cir. 9/23/15), 173 So.3d 1278, 1289, writ not considered , 15-2067 (La. 3/14/16), 188 So.3d 1069. The concept of double jeopardy, under both the federal and state constitutions, embodies the dual purpose of preventing both multiple punishments and multiple convictions for a single criminal wrong. Id.

Double jeopardy may be raised at any time pursuant to La. C.Cr.P. art. 594. State v. Anderson , 10-779 (La. App. 5 Cir. 3/27/12), 91 So.3d 1080, 1088. A double jeopardy analysis begins with the inquiry as to whether a single offense or several offenses are involved. Fairman , 173 So.3d at 1289. It is well-settled that an accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. State v. Nichols , 337 So.2d 1074, 1078 (La. 1976) ; Anderson , 91 So.3d at 1089.

Louisiana courts previously utilized two tests to analyze double jeopardy claims: (1) the "distinct fact" or Blockburger test, set forth in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ; and (2) the "same evidence" test. Fairman , 173 So.3d at 1289. However, the Louisiana Supreme Court has recently held that Louisiana courts are bound only to apply the standard established by the U.S. Supreme Court in Blockburger, supra , to protect against double jeopardy and can dispense with Louisiana's separate "same evidence" test. State v. Frank , 16-1160 (La. 10/18/17), 234 So.3d 27.

Under the Blockburger test, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger , 284 U.S. at 304, 52 S.Ct. 180 ; State v. Knowles , 392 So.2d 651, 654 (La. 1980).

An unqualified guilty plea does not preclude appellate review of jurisdictional defects, such as violations of the Double Jeopardy Clause. State v. Crosby , supra. A court considering a double jeopardy challenge entered pursuant to unconditional guilty pleas, however, should engage in a limited review of only the charging documents and plea colloquy. State v. Arnold , 01-1399 (La. 4/12/02), 816 So.2d 289 ; State v. Miller , 12-126 (La. App. 5 Cir. 10/16/12), 102 So.3d 956, 961-62, writ denied , 12-2487 (La. 5/31/13), 118 So.3d 388.

In the instant case, we find that no double jeopardy violation occurred. The amended bill of information and the plea colloquy indicate that defendant committed armed robbery against four different victims on the same date. An accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. See Nichols, supra ; State v. Jackson , 99-1256 (La. App. 5 Cir. 7/25/00), 767 So.2d 848, 853 (defendant convicted of multiple counts of armed robbery that occurred during one card game was not subject to double jeopardy since a separate act and separate intent were required as to each victim and different evidence was needed to prove each of the charges.) Further, as previously noted, the record indicates that defendant's guilty pleas were knowingly, intelligently, and voluntarily made. In light of the foregoing, we find that defendant's guilty pleas were valid and that there was no double jeopardy violation.

Errors patent

Finally, we have reviewed the record for errors patent, according 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. 5th Cir. 1990). We have found no errors patent that require correction.

Conclusion

For the foregoing reasons, defendant's convictions and sentences are affirmed. Further, since appellate counsel's brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and our independent review of the record supports counsel's assertion, we grant appellate counsel's motion to withdraw as attorney of record.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      Initially, the Jefferson Parish District Attorney filed a bill of information on July 24, 2015, charging defendant, with four counts of armed robbery with a firearm while inflicting serious bodily injury in violation of La. R.S. 14:64.3. On September 23, 2016, the district attorney's office filed a superseding bill of information charging defendant with four counts of armed robbery with a firearm in violation of La. R.S. 14:64 and La. R.S. 14:64.3(A), and deleting the element of serious bodily injury on each count.

      95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. The Bradford Court adopted its procedure from that of the Fourth Circuit, set forth in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), and sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam ).

      96-2669 (La. 12/12/97), 704 So.2d 241, 242 (per curiam ).

      The United States Supreme Court reiterated Anders in Smith v. Robbins , 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

      704 So.2d at 241.

      Id.

      Bradford , supra at 1110.

      Id.

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

      The assignments are addressed together because they are related.