text:
    Paul Matthew CALZETTA, Petitioner, v. STATE of Florida and Bryan R. Holt, Chief of Corrections, Osceola County, Florida. Respondents.
    Case No. 5D19-1065
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 22, 2019
    Anton J. Nace, of Law Office of Anton J. Nace, P.A., Orlando, for Petitioner.
    Ashley Moody, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Respondents.
   PER CURIAM.

Petitioner, Paul Matthew Calzetta, seeks a writ of habeas corpus directing the lower court to hold a hearing for the purposes of setting a new bond and reasonable conditions for pretrial release. We grant the petition, quash the order denying the motion to set bond after recommitment, and remand to the lower court for a hearing.

The State charged Petitioner with Trafficking in 200 Grams or More of Methamphetamine and Possession of a Controlled Substance with Intent to Sell or Deliver, which are felony offenses. Petitioner bonded out of custody, but later violated a condition of his pretrial release by failing to complete a drug test. The State filed a motion to revoke Petitioner's pretrial release, which the lower court granted. The court then set Petitioner's bond at zero. Subsequently, Petitioner filed a motion to set a new bond, which was denied without a hearing.

As required by both statute and rule, "[a]n application for modification of bail on any felony charge must be heard by a court in person, at a hearing with the defendant present, and with at least three hours' notice to the state attorney." § 903.035(2), Fla. Stat. (2017) ; cf. Fla. R. Crim. P. 3.131(d)(2). Thus, Petitioner's motion to set a new bond was improperly denied without a hearing. See Moore v. State, 247 So.3d 672, 673 (Fla. 5th DCA 2018).

Accordingly, we grant the petition, quash the order under review, and remand this matter to the lower court for a proper hearing.

PETITION GRANTED; ORDER QUASHED; and CAUSE REMANDED.

EVANDER, C.J., HARRIS and GROSSHANS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, a foreign corporation, Petitioner, v. Robyn L. REY, Respondent.
    Case No. 2D18-4661
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    Jenna C. Worden, Daniel A. Martinez, and Weslee L. Ferron of Martinez Denbo, L.L.C., St. Petersburg, for Petitioner.
    George A. Vaka of Vaka Law Group, Tampa, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is dismissed without prejudice to United Services Automobile Association to seek review in this court of any ruling on the motion to abate that is pending in the circuit court or on any discovery order that is entered in regard to the bad faith claim prior to the finality of the final judgment on which the bad faith claim is based.

Dismissed.

SILBERMAN, LUCAS, and SALARIO, JJ., Concur.


text:
    Christopher Curtis MANLEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2272
    District Court of Appeal of Florida, Second District.
    Opinion filed May 1, 2019
    Howard L. Dimmig, II, Public Defender, and James Dickson Crock, Special Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

In 2014, the State charged Christopher Curtis Manley with one count of second-degree murder with a firearm and two counts of aggravated battery with a firearm. Manley unsuccessfully moved to dismiss the information, claiming immunity from prosecution under Florida's Stand Your Ground law, section 776.032, Florida Statutes (2013). He was tried before a jury in 2016 and found guilty of all three charges. Manley has appealed the resulting judgment and sentences, arguing among other things that the 2017 amendment to section 776.032, see ch. 2017-72, § 1, Laws of Fla., applies retroactively to pending cases and that therefore the trial court should reconsider his immunity claim in light of that amendment.

In Martin v. State, 43 Fla. L. Weekly D1016, D1017, --- So.3d ----, ----, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018), review pending, No. SC18-789, this court held that the 2017 amendment to section 776.032 applies retroactively to pending cases. See also Drossos v. State, 43 Fla. L. Weekly D2764, --- So.3d ---- (Fla. 2d DCA Dec.14, 2018), review pending, No. SC19-83. As we did in Martin, here we reverse Manley's judgment and sentences and remand for a new immunity hearing under the 2017 statute. If, following the hearing, the trial court determines that Manley is entitled to statutory immunity, it shall enter an order to that effect and dismiss the information with prejudice. See Martin, --- So.3d at ----, 43 Fla. L. Weekly at D1018. If the court determines that Manley is not entitled to immunity, it shall enter an order so reflecting and reinstate Manley's conviction and sentences. See id. We find no merit to the other issues raised in Manley's appeal.

The Third and Fourth District Courts of Appeal have held that section 776.032, as amended, does not apply retroactively to pending cases. Accordingly, we certify that this decision is in direct conflict with Hight v. State, 253 So.3d 1137 (Fla. 4th DCA 2018), review pending, No. SC18-1653, and Love v. State, 247 So.3d 609 (Fla. 3d DCA 2018), review granted, No. SC18-747, 2018 WL 3147946 (Fla. June 26, 2018).

Reversed and remanded with instructions; conflict certified.

NORTHCUTT, SLEET, and ATKINSON, JJ., Concur.


text:
    Jasmine CRANDALL, DOC #T94085, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2721
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the revocation of Ms. Crandall's probation and the resultant sentence without comment. Because the written sentence contains a single designation of credit ("Credit for Time Served: 72 Days (INCLUDING PRIOR PRISON CREDIT)") without delineating the jail credit to which she is entitled from the prison credit that the trial court also awarded, we remand only for the limited purpose of the entry of a new written sentence distinguishing between the jail and prison credit awards and clarifying that the calculation of the prison credit is to be calculated by the Department of Corrections. See Rowan v. State, 779 So.2d 417, 418 (Fla. 2d DCA 2000) ("This appears to be a scrivener's error that combines jail and prison credit.... The trial court need not calculate prison credit so long as the trial court checks the standard box allowing all appropriate prior prison credit.").

Affirmed; remanded.

SILBERMAN, LUCAS, and SALARIO, JJ., Concur.


author: Per Curiam.

text:
    Daniel Antoine ISRAEL, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-596
    District Court of Appeal of Florida, First District.
    May 2, 2019
    Andy Thomas, Public Defender, and Greg Caracci, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Daniel Antoine Israel, Sr., appeals his judgment and sentence for resisting an officer with violence, arguing that trial counsel was ineffective in failing to request a jury instruction on the lesser included offense of resisting an officer without violence. "Claims of ineffective assistance of counsel are rarely addressed on direct appeal because they normally turn on questions of fact and both sides are entitled to present relevant evidence at an evidentiary hearing." Barnett v. State , 181 So.3d 534, 536 (Fla. 1st DCA 2015). In order to prevail on an ineffectiveness claim on direct appeal, an appellant must demonstrate " 'ineffectiveness on the face of the record, indisputable prejudice, and an inconceivable tactical explanation for the conduct.' " Id. (citation omitted).

Appellant has failed to establish any of the necessary elements to prevail on his claim. Given the evidence presented at trial of the violence Appellant used in resisting the officers who were attempting to take him into custody, ineffectiveness has not been shown on the face of the record. Nor has indisputable prejudice been established. See Sanders v. State , 946 So.2d 953, 960 (Fla. 2006) (holding that "the possibility of a jury pardon cannot form the basis for a finding of prejudice" under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that "a claim alleging ineffective assistance of counsel for failure to request an instruction on a lesser-included offense may be summarily denied); see also Johnson v. State , 247 So.3d 689, 697 (Fla. 1st DCA 2018) (citing Sanders for the proposition that as a matter of law, the possibility of a jury pardon cannot form the basis for a finding of prejudice under Strickland ). Appellant has also failed to show an inconceivable tactical explanation for why trial counsel did not request the instruction at issue. Instead, Appellant acknowledged in his reply brief that it was plausible that trial counsel hoped for a full exoneration given the fact that Appellant was a wounded veteran.

Accordingly, we affirm Appellant's judgment and sentence.

AFFIRMED .

B.L. THOMAS, C.J., and LEWIS and ROBERTS, JJ., concur.


text:
    Molly A. BRUNSON, Appellant, v. Adrienne ASHLEY, individually and Cathy Ashley Lane, her parent and natural guardian during her minority, Appellee.
    Nos. 1D16-4972 1D17-3532
    District Court of Appeal of Florida, First District.
    May 2, 2019
    Rhonda B. Boggess of Taylor, Day, Grimm & Boyd, Jacksonville, and James A. McGhee of Kirkland McGhee & Gann, P.A., Pensacola, for Appellant.
    Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola, and David A. Simpson and Jonathan D. Simpson of Simpson Law Firm, Fort Walton Beach, for Appellees.
   Per Curiam.

The trial court ordered that defendant Molly Brunson was not entitled to attorney's fees and costs because her proposals for settlement were invalid as they failed to address punitive damages, even though punitive damages were not pled by the plaintiffs, Ashley and Lane. This was error under Aguado v. Miller , 219 So.3d 216, 217-18 (Fla. 1st DCA 2017) (finding that failure to include a statement that the proposal for settlement did not include punitive damages did not make the proposal invalid where the plaintiff did not seek punitive damages in the complaint). We, therefore, reverse the trial court's order denying Brunson's motion to tax attorney's fees and costs and remand for a determination of the proper award. We also reverse the trial court's final judgment in favor of Ashley and Lane, and remand to the trial court for determination of recoverable taxable costs in favor of Brunson. As to the cross-appeal, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

B.L. Thomas, C.J., and Makar and Winsor, JJ., concur.


text:
    Timothy Carlos COFFEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-1299
    District Court of Appeal of Florida, First District.
    May 2, 2019
    Andy Thomas, Public Defender; Joanna Aurica Mauer and Glen P. Gifford, Assistant Public Defenders, Tallahassee, for Appellant.
    Ashley Moody, Attorney General; Matthew Pavese and Michael L. Schaub, Assistant Attorneys General, Tallahassee, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

The appellant, Timothy Coffey, was charged by amended information with one count of using a computer to facilitate or solicit a parent to consent to the sexual conduct of a child, in violation of section 847.0135(3)(b), Florida Statutes (2013) (Count 1); one count of unlawful use of a two-way communications device, a cellular phone, to facilitate the commission of a felony, traveling to engage in sexual conduct with a minor, in violation of section 934.215, Florida Statutes (2013) (Count 2); and one count of traveling to meet a minor to engage in sexual conduct with consent by a parent, in violation of section 847.0135(4)(b), Florida Statutes (2013) (Count 3). Each crime was alleged to have been committed "on or about November 15, 2013." He was convicted on all counts.

The appellant raised four issues on appeal. In Issue I, he argued his dual convictions in Counts 1 and 3 violated double jeopardy. In Issue II, he argued his dual convictions in Counts 2 and 3 violated double jeopardy. In Issue III, he challenged the denial of a pre-trial motion to dismiss based on subjective and objective entrapment. In Issue IV, he argued the trial court erred by excluding certain trial testimony. This Court accepted the State's concession of error in Issue II and vacated the appellant's conviction in Count 2. We affirmed all other issues on appeal.

In Issue I, we affirmed his dual convictions in Counts 1 and 3 under Lee v. State , 223 So.3d 342 (Fla. 1st DCA 2017). In 2018, the Supreme Court quashed our opinion in Lee and held that the reviewing court should only consider the charging document to determine whether multiple convictions for solicitation, unlawful use of a two-way communications device, and traveling were based upon the same conduct for purposes of double jeopardy. Lee v. State , 258 So.3d 1297 (Fla. 2018) ( Lee II ). Applying Lee II to Issue I in this case, we must also vacate the appellant's conviction in Count 1 as that count is subsumed within Count 3. Accordingly, the appellant's convictions in Counts 1 and 2 are VACATED . The appellant's conviction in Count 3 is AFFIRMED .

Lewis, Roberts, and Ray, JJ., concur.


text:
    Danny PASICOLAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-2634
    District Court of Appeal of Florida, First District.
    May 2, 2019
    Andy Thomas, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley Moody, Attorney General; Lauren Gonzalez and Michael L. Schaub, Assistant Attorneys General, Tallahassee, for Appellee.
    ON REMAND FROM THE FLORIDA SUPREME COURT
   Per Curiam.

Following a jury trial, the appellant, Danny Pasicolan, was convicted of one count of traveling to meet a minor to do unlawful acts after using a computer online service, contrary to section 847.0135(4)(a), Florida Statutes (2013) (Count I); one count of unlawful use of a two-way communications device, contrary to section 934.215, Florida Statutes (2013) (Count II); one count of transmission of material harmful to minors, contrary to section 847.0138(2), Florida Statutes (2013) (Count III); and one count of unlawful use of computer services to solicit a child to engage in sexual conduct, contrary to section 847.0135(3)(a), Florida Statutes (2013) (Count IV). The information alleged that each of these offenses occurred on October 10, 2013. After trial, the appellant timely appealed his convictions and raised three issues on appeal. We affirm the first two issues without further comment.

In his third issue, the appellant argued that two of his convictions violated his constitutional right against double jeopardy. Specifically, he argued that use of computer services to solicit a minor (Count IV) was subsumed by traveling to meet a minor (Count I) and that unlawful use of a two-way communications device (Count II) was subsumed by the other three counts. We affirmed these convictions under our decision in Lee v. State , 223 So.3d 342 (Fla. 1st DCA 2017). In 2018, the Supreme Court quashed our opinion in Lee and held that a reviewing court should only consider the charging document to determine whether multiple convictions for solicitation, unlawful use of a two-way communications device, and traveling were based upon the same conduct for purposes of double jeopardy.

Lee v. State , 258 So.3d 1297 (Fla. 2018) ( Lee II ). Applying Lee II to this case, the appellant's convictions in Counts II and IV are VACATED . The appellant's convictions in Counts I and III are AFFIRMED .

Roberts, Ray, and Kelsey, JJ., concur.


text:
    Alain BARUCHEL, Appellant, v. John Richard DALTON, Appellee.
    Case No. 5D18-3880
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 10, 2019 Rehearing Denied April 24, 2019
    Alain Baruchel, Montreal, Quebec, Canada, pro se.
    John Richard Dalton, Daytona Beach, pro se.
   PER CURIAM.

We issued a Spencer show cause order directing Appellant to demonstrate why he should not be barred from any future pro se filings in this Court and why he should not be prohibited from any telephonic and/or in-person communications with Court Staff. Having carefully considered Appellant's response, we conclude that he is abusing the judicial process and Court Staff and should be barred from further pro se filings.

Therefore, in order to conserve judicial resources and to protect Court Staff, we prohibit Appellant from filing with this Court any further pro se pleadings concerning Volusia County Seventh Judicial Circuit case number 2018-33323-FMCI. The Clerk of this Court is directed not to accept any further pro se filings concerning this case and not to accept any telephone or in-person communications. Any further pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing with The Florida Bar. See Isley v. State, 652 So. 2d 409, 411 (Fla. 5th DCA 1995) ("Enough is enough.").

FURTHER PRO SE FILINGS PROHIBITED.

WALLIS, EDWARDS, and HARRIS, JJ., concur.

      State v. Spencer, 751 So. 2d 47 (Fla. 1999).


text:
    Michael Anthony PADGETT, Former Husband, Appellant, v. Retha Ann PADGETT, Former Wife, Appellee.
    No. 1D17-2217
    District Court of Appeal of Florida, First District.
    May 2, 2019
    Joseph L. Mannikko of Mannikko & Baris, Macclenny, for Appellant.
    No appearance for Appellee.
   Per Curiam.

Michael Padgett (the former husband) appeals the trial court's denial of his petition to modify his alimony obligation to Retha Padgett (the former wife), arguing that the evidence does not support the trial court's finding that he was capable of earning additional income. We cannot determine whether the trial court's finding was supported by the evidence due to the lack of transcript in the record on appeal, and must affirm. See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150, 1152 (Fla. 1979) ("Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory.").

AFFIRMED .

B.L. Thomas, C.J., and Kelsey and Winokur, JJ., concur.


author: PER CURIAM

text:
    IN RE: Julie A. FUSILIER
    NO. 2019-OB-0375
    Supreme Court of Louisiana.
    April 29, 2019
    ON APPLICATION FOR REINSTATEMENT
   PER CURIAM

This proceeding arises out of an application for readmission to the practice of law filed by petitioner, Julie A. Fusilier, a suspended attorney.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On May 27, 2016, we suspended petitioner from the practice of law for eighteen months. In re: Fusilier , 16-0016 (La. 5/27/16), 193 So.3d 1150. The suspension stemmed from petitioner's arrest in 2014, after she broke into her ex-husband's home and stole a man's diamond ring (valued at approximately $ 13,000) and a woman's Rolex watch (valued at approximately $ 6,000). Petitioner then sold the ring and the watch to Diamond Distributors Inc. for approximately $ 2,700 and used the money to gamble. She was subsequently charged with felony theft and burglary of an inhabited dwelling.

In January 2018, petitioner filed an application for reinstatement with the disciplinary board, alleging she has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel ("ODC") took no position regarding the application for reinstatement. Accordingly, the matter was referred for a formal hearing before a hearing committee.

Following the hearing, the hearing committee recommended that petitioner be reinstated to the practice of law, subject to the condition that she continue to comply with her Judges and Lawyers Assistance Program ("JLAP") recovery agreement. Among other findings, the committee noted that petitioner successfully completed a gambling addiction treatment program, actively participates in Alcoholics Anonymous and Gamblers Anonymous, and is fully compliant with her JLAP agreement.

Neither petitioner nor the ODC objected to the hearing committee's recommendation.

DISCUSSION

After considering the record in its entirety, we find petitioner has met her burden of proving that she is entitled to be reinstated to the practice of law on a conditional basis. Accordingly, we will order that petitioner be reinstated to the practice of law, subject to the condition that she comply with her JLAP recovery agreement.

DECREE

Upon review of the recommendation of the hearing committee, and considering the record, it is ordered that Julie A. Fusilier, Louisiana Bar Roll number 19583, be immediately reinstated to the practice of law in Louisiana, subject to the condition that she comply with her JLAP recovery agreement. Should petitioner fail to comply with this condition of reinstatement, her conditional right to practice may be terminated immediately, or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate. All costs of these proceedings are assessed against petitioner.

      In her petition for reinstatement, petitioner indicates that the criminal charges were dismissed after she made restitution to her ex-husband in late 2016 or early 2017.


author: HUGHES, J., would grant.

text:
    Richard PALMER v. UV INSURANCE RISK RETENTION GROUP, INC., UV Logistics, LLC, and Michael Lewis Smith
    Jeannie Breaux v. UV Insurance Risk Retention Group, Inc., UV Logistics, LLC, and Michael Lewis Smith
    No. 19-C-0107
    Supreme Court of Louisiana.
    April 29, 2019
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF ST. JAMES
    Writ denied.
   HUGHES, J., would grant.

CRICHTON, J., would grant and docket and assigns reasons.

GENOVESE, J., would grant and assigns reasons.

Crichton, J., would grant and docket and assigns reasons:

I would grant the plaintiff's writ and docket this matter to determine whether the trial court abused its discretion in denying his challenges for cause of certain jurors ultimately seated in this case. Several of the jurors demonstrated a particular opposition to personal injury lawsuits and/or acknowledged that they could not properly apply the preponderance of the evidence standard. Thus, I would grant this application to examine whether the voir dire "as a whole" indicates an abuse of discretion by the trial judge. See Riddle v. Bickford , 00-2408 (La. 5/15/01), 785 So.2d 795, 801.

GENOVESE, J., would grant this writ and assigns reasons

The issue presented in this case is whether the trial court abused its discretion in denying plaintiff's challenge for cause involving four prospective jurors. It is undisputed that upon the questioning of these four prospective jurors in this case, all four indicated that they were opposed to lawsuits for personal injuries; three of them indicated that they would not be able to apply the preponderance of the evidence standard to the facts of this case; and, two of them acknowledged that they would have difficulty being fair. Though there was a general attempt by the trial judge at rehabilitation of these four jurors, the transcript reveals that theses jurors were fairly well-entrenched and opinioned in their views. A general inquiry by the trial court to these prospective jurors as to whether he or she could follow the law, with no indication by the prospective jurors that he or she could not do so, does not purge potential bias and partiality.

With all due respect for the mindset of these four prospective jurors, I nevertheless conclude that plaintiff would not and could not obtain a fair trial with one or all of them on the jury panel. Thus, I find the trial court abused its discretion in not granting plaintiff's challenge for cause of these four prospective jurors.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-517749
    NO. 2019-BA-0502
    Supreme Court of Louisiana.
    April 24, 2019
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is immediately eligible to be conditionally admitted to the practice of law in Louisiana, subject to the following conditions:

1. Petitioner shall continue to comply with the terms of the recovery agreement he signed with the Judges and Lawyers Assistance Program ("JLAP") on February 26, 2019.
2. The period of this conditional admission shall coincide with the period of petitioner's JLAP agreement. However, petitioner's conditional admission status shall not be terminated until this court so orders.
3. Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel ("ODC").
4. Upon the expiration of the term of petitioner's JLAP agreement, the Executive Director of JLAP shall forward to the ODC (a) a final report of petitioner's progress and participation in JLAP, and (b) a recommendation regarding the need for petitioner's continued participation in JLAP.
5. Following receipt of the report from JLAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.
6. Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


author: PER CURIAM:

text:
    STATE of Louisiana v. Reginald W. WILLIAMS
    No. 19-KH-0103
    Supreme Court of Louisiana.
    April 29, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Applicant 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. Applicant'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. His sentencing claim is also non-cognizable. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172.

Applicant has now fully litigated his fourth 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. Applicant'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, applicant has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    IN RE: Cherie Elizabeth TEAMER
    NO. 2019-B-0353
    Supreme Court of Louisiana.
    April 29, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

The Office of Disciplinary Counsel ("ODC") commenced an investigation into allegations that respondent notarized signatures to a quitclaim deed, which signatures were made outside of her witness, and then filed the deed, which contained false information, into a succession proceeding. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that her conduct violated Rules 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Cherie Elizabeth Teamer, Louisiana Bar Roll number 36286, be suspended from the practice of law for a period of one year. This suspension shall be deferred in its entirety, subject to respondent's successful completion of a one-year period of supervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent, the probation monitor, and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN-869839
    NO. 2019-BA-0404
    Supreme Court of Louisiana.
    April 24, 2019
    BAR ADMISSIONS PROCEEDING
   PER CURIAM

After reviewing the evidence and considering the law, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana.

ADMISSION GRANTED.


text:
    IN RE: Warner H. ANTHONY, Jr.
    NO. 2019-B-0186
    Supreme Court of Louisiana.
    April 29, 2019
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

Pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel ("ODC") has filed a petition seeking the imposition of reciprocal discipline against respondent, Warner H. Anthony, Jr., an attorney licensed to practice law in Louisiana and the District of Columbia, based upon discipline imposed by the D.C. Court of Appeals.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On December 13, 2018, the D.C. Court of Appeals suspended respondent from the practice of law for a period of one year for misconduct related to his representation of two clients and for his failure to respond to the charges brought by the Office of Disciplinary Counsel for the District of Columbia ("ODC-DC"). The court's order also provides that respondent's reinstatement be conditioned upon a showing of fitness.

The misconduct at issue encompasses respondent's failure to competently and diligently represent his clients in a federal tax matter, which occurred when he failed to provide them with a written retainer agreement and then, after filing three petitions in the U.S. Tax Court on their behalf, failed to comply with court rules or respond to court orders, resulting in dismissal of the petitions. The dismissal of these petitions foreclosed any further challenge to the contested tax assessments. Respondent also failed to respond to his clients' requests for information and misrepresented the status of the dismissed petitions. Thereafter, when his clients obtained new counsel, respondent failed to respond to counsel's request for their files. As noted above, he also failed to cooperate with the ODC-DC in its investigation of these matters.

After receiving notice of the D.C. order of discipline, the ODC filed a motion to initiate reciprocal discipline proceedings in Louisiana, pursuant to Supreme Court Rule XIX, § 21. A copy of the Final Judgment and Order issued by D.C. Court of Appeals was attached to the motion. On February 5, 2019, we rendered an order giving respondent thirty days to demonstrate why the imposition of identical discipline in this state would be unwarranted. Respondent failed to file any response in this court.

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D). That rule provides:

Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline ... unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or
(4) The misconduct established warrants substantially different discipline in this state; ...
If this court determines that any of those elements exists, this court shall enter such other order as it deems appropriate. The burden is on the party seeking different discipline in this jurisdiction to demonstrate that the imposition of the same discipline is not appropriate.

In the instant case, respondent has made no showing of infirmities in the D.C. proceeding, nor do we discern any from our review of the record. Furthermore, we feel there is no reason to deviate from the sanction imposed in D.C. as only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction. In re: Aulston , 05-1546 (La. 1/13/06), 918 So.2d 461. See also In re Zdravkovich , 831 A.2d 964, 968-69 (D.C. 2003) ("there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority").

Under these circumstances, we find it is appropriate to defer to the D.C. judgment imposing discipline upon respondent. Accordingly, we will impose reciprocal discipline in the form of a one-year suspension from the practice of law.

DECREE

Considering the Petition to Initiate Reciprocal Discipline Proceedings filed by the Office of Disciplinary Counsel, respondent's response thereto, and the record filed herein, it is ordered that respondent, Warner H. Anthony, Jr., Louisiana Bar Roll number 2510, be and he hereby is suspended from the practice of law in Louisiana for a period of one year.


text:
    STATE of Louisiana v. Rudy FRANCIS
    No. 2019-K-0227
    Supreme Court of Louisiana.
    April 29, 2019
    ON WRIT OF CERTIOARI TO FOURTH CIRCUIT, PARISH OF ORLEANS
   PER CURIAM:

Writ granted in part. Defendant was found guilty of manslaughter in response to the charge of second degree murder. The district court sentenced him to 25 years imprisonment at hard labor without observing the 24-hour sentencing delay required by La.C.Cr.P. art. 873. The district court erred. Defendant did not waive the delay, and the error in failing to observe the delay is not harmless because defendant challenged his sentence. See State v. Augustine , 555 So.2d 1331 (La. 1990). Accordingly, we grant the application in part, vacate the sentence, and remand to the district court for resentencing. Defendant's application is otherwise denied.


text:
    STATE of Louisiana v. Durrell JOHNSON
    No. 2018-KH-1461
    Supreme Court of Louisiana.
    April 29, 2019
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. East Baton Rouge Parish is the proper venue for applicant's parole claims. R.S. 15:571.15. To the extent applicant seeks to withdraw his guilty plea and sentences, his application seeks post-conviction relief. La.C.Cr.P. art. 924. As such, the 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. In addition, his sentencing claims are not cognizable on collateral review. La.C.Cr.P. art. 930.3 ; State ex rel. Melinie v. State , 93-1380 (La. 1/12/96), 665 So.2d 1172 ; see also State v. Cotton , 09-2397 (La. 10/15/10), 45 So.3d 1030.

Applicant 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. Applicant'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, applicant 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. Delance SMALL
    No. 2018-KH-1418
    Supreme Court of Louisiana.
    April 29, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

Applicant 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. Applicant'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, applicant 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. Tommy Lee WILSON
    No. 2018-KH-1351
    Supreme Court of Louisiana.
    April 29, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

Applicant 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. Applicant'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, applicant 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. Corey SMITH
    No. 2018-KH-1061
    Supreme Court of Louisiana.
    April 29, 2019
    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 applicant 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.

Applicant 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. Applicant'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, applicant 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. James Daniel JOHNSON
    NO. 2019-KK-0114
    Supreme Court of Louisiana.
    April 29, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Granted. The district court erred in denying defendant's motion to suppress despite finding that the officers failed to articulate probable cause in their search warrant application to subpoena defendant's medical records. A search warrant application must contain within its four corners the facts establishing the existence of probable cause. State v. Duncan , 420 So.2d 1105 (La.1982). Louisiana Code of Evidence article 510 is not an exception to the warrant requirement; rather, it is an exception to the admissibility protections of that evidence after lawful seizure. The evidence in this matter was not lawfully seized; thus, Article 510 does not apply.

The trial court's ruling on defendant's motion to suppress is therefore vacated, defendant's motion to suppress is granted, and this case is remanded to the district court for further proceedings consistent with the views expressed herein.

GUIDRY, J., would deny.

CLARK, J., would deny.

CRICHTON, J., would deny and assigns reasons.

Crichton, J., dissents and would deny the writ.

I would deny the defendant's writ. In my view, the good faith exception is clearly applicable and the trial court did not abuse his "great discretion" in ruling on this motion to suppress. See State v. Coleman , 14-0402, p.18 (La. 2/26/16), 188 So.3d 174, 192.


author: GENOVESE, J., recused.

text:
    STATE of Louisiana v. Aaron Orlando RICHARDS
    NO. 2018-KO-1036
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   GENOVESE, J., recused.


text:
    STATE of Louisiana v. Dirk Douglas THOMAS aka Dirk Thomas
    NO. 2018-KO-1757
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Roosevelt D. JONES
    NO. 2018-K-1993
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Allen Odell WOODS
    NO. 2019-KO-0216
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Brittany D. MONK
    NO. 2018-K-1997
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Dwayne WILLIAMS
    NO. 2018-KO-2038
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Deonta WARE
    NO. 2019-KO-0257
    Supreme Court of Louisiana.
    April 22, 2019
    Not considered. Not timely filed. See La.S.Ct-R- X, § 5.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Douglas Matthew FORD
    NO. 2017-KO-1901
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Jamal BARTLEY
    NO. 2017-KO-1924
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Tyrone FOLSE
    NO. 2018-K-1740
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Matthew R. DOTSON
    NO. 2018-KO-1821
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


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

text:
    In the MATTER OF BCL INVESTMENTS, L.L.C.
    NO. 2019-C-0276
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    BROWN BUILDERS, INC. v. LEBLANC AND YOUNG ARCHITECTS, INC., a Professional Architectural Corporation, Fenner Consulting, L.L.C., and RLI Insurance Company
    NO. 2019-CC-0345
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    PREFERRED ELECTRIC, INC. v. PARISH OF JEFFERSON
    NO. 2019-CC-0358
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    Melissa TARDO, Danielle Tardo, Christopher Tardo and Joseph Tardo v. ALFORD SAFETY SERVICES, LLC and John Spears
    NO. 2019-CC-0142
    Supreme Court of Louisiana.
    April 22, 2019
    Granted with a remand to the court of appeal for briefing and consideration of oral argument in accordance with La.C.C.P. art. 966(H).


text:
    STATE of Louisiana v. Dirk Douglas THOMAS aka Dirk Thomas
    NO. 2018-KO-1841
    Supreme Court of Louisiana.
    April 22, 2019
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the courts below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. John T. FITCH, Sr.
    NO. 2018-KH-0307
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Burt Howard VOGEL
    NO. 2018-K-1754
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Jeffery Dwayne DUCOTE, Sr. a/k/a Jeffery Dwayne Ducote
    NO. 2018-KO-2026
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Kevias C. HICKS
    NO. 2018-KO-1954
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Christopher WESTON
    NO. 2018-KO-2066
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Marlon Romaine CARTER
    NO. 2019-KO-0246
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   JOHNSON, C.J., would grant.


text:
    Spencer BERNARD v. GLENN LEGE CONSTRUCTION CO., INC., et al.
    NO. 2019-CC-0342
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


author: GUIDRY, J., recused.

text:
    STATE of Louisiana v. John ESTEEN, III
    NO. 2019-KO-0214
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   GUIDRY, J., recused.


text:
    Johnny Ray LUNA v. Darrel VANNOY, Warden
    NO. 2018-KH-0859
    Supreme Court of Louisiana.
    April 22, 2019
    Denied. Applicant has previously exhausted his right to state collateral review. See State ex rel. Luna v. State, 16-1893 (La. 2/2/18), 234 So.3d 878.


text:
    STATE of Louisiana v. Ladray BIAS, Jr.
    NO. 2019-KO-0416
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Tyrone FOLSE
    NO. 2018-K-1743
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Keith DEJEAN
    NO. 2019-KK-0440
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Floyd M. FLUGENCE
    NO. 2018-KH-0973
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Mitchell LARTIGUE
    NO. 2018-KK-2108
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


author: GENOVESE, J., would grant.

text:
    STATE of Louisiana v. Darville ALLEN
    NO. 2019-KK-0347
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   GENOVESE, J., would grant.


text:
    Raymond KING v. STATE of Louisiana
    NO. 2018-KH-0982
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Anthony Paul DESHOTEL
    NO. 2018-KH-1022
    Supreme Court of Louisiana.
    April 22, 2019
    Denied. Applicant has previously exhausted his right to state collateral review. See State ex rel. Deshotel, 15-0838 (La. 2/19/16), 184 So.3d 679.


author: WEIMER, J., would grant.

text:
    STATE of Louisiana v. John H. CARTWRIGHT
    NO. 2018-K-1531
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   WEIMER, J., would grant.


text:
    SUCCESSION OF Fannie Canale CANNATA
    Succession of Vincent Cannata c/w Cannata's Super Market, Inc. v. Guy Thomas Cannata, Independent Executor of the Succession of Vincent Cannata
    NO. 2019-OC-0348
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   WEIMER, J., would grant.


text:
    STATE of Louisiana v. Dirk Douglas THOMAS aka Dirk Thomas
    NO. 2018-K-1662
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Marlon Romaine CARTER
    NO. 2019-K-0105
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   JOHNSON, C.J., would grant.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. William Payton CORKERN
    NO. 2019-KO-0194
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    SPANISH LAKE RESTORATION, L.L.C. v. SHELL OIL COMPANY, et al.
    NO. 2018-CD-1830
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Tommie C. MOLETTE, a.k.a. Tucker Molette
    NO. 2018-KO-1955
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Kenneth JACKSON
    NO. 2018-KO-1969
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Gerald PARKER
    NO. 2019-KK-0351
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   HUGHES, J., would grant.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Tyrek MARTIN
    NO. 2019-KK-0355
    Supreme Court of Louisiana.
    April 24, 2019
    Denied.


text:
    Kelvin WELLS, et al. v. EAST BATON ROUGE SCHOOL BOARD
    NO. 2019-000352
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


text:
    STATE of Louisiana v. Tyrone FOLSE
    NO. 2018-K-173 9
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Keith DEJEAN
    NO. 2019-KK-C453
    Supreme Court of Louisiana.
    April 22, 2019
    Denied.


author: McCLENDON, J.

text:
    STATE of Louisiana v. Cal Wade BROUSSARD
    2018 KA 0616
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2018
    Warren L. Montgomery, District Attorney, Matthew Caplan, Assistant District Attorney, Covington, Louisiana, Counsel for Appellee, State of Louisiana
    Russell S. Stegeman, Covington, Louisiana, Counsel for Defendant/Appellant, Cal Wade Broussard
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   McCLENDON, J.

Defendant, Cal Broussard, was charged by bill of Information with unlawful use of a social network website, a violation of LSA-R.S. 14:91.5 (count 1), and with failure to register as a sex offender, a violation of LSA-R.S. 15:542C(1) (count 2). He entered a plea of not guilty as to both counts. Defense counsel filed motions to quash each charge, challenging the constitutionality of both statutes. Thereafter, the State dismissed count one, thereby making the motion to quash as to count one moot. The trial court denied the motion to quash as to count two. After being advised of his rights, defendant then entered a plea of guilty as to the second count, reserving his right to appeal his claim as to the unconstitutionality of the statute pursuant to State v. Crosby, 338 So.2d 584, 586 (La. 1976). The trial court imposed a term of two years imprisonment at hard labor, to be served without the benefit of probation, parole, or suspension of sentence. Defendant now appeals, designating a single assignment of error. For the following reasons, we vacate the conviction and sentence, and remand the case to the trial court to provide the Attorney General the opportunity to participate in the proceedings.

STATEMENT OF FACTS

On March 20, 2015, defendant entered a plea of guilty in Ascension Parish to indecent behavior with a juvenile, a violation of LSA-R.S. 14:81. He was sentenced to five years imprisonment at hard labor without parole, probation, or suspension of sentence for the first two years. Thereafter, defendant was to serve three years on active probation.

Following his move to St. Tammany Parish, after his release from incarceration, defendant registered as a sex offender with the St. Tammany Sheriff's Office. During a surprise inspection by his probation officer on June 6, 2017, a laptop computer open to a social networking site was found on defendant's bed. Investigation revealed an email address defendant was using that was not reported to the Sheriff during defendant's registration.

ASSIGNMENT OF ERROR

In his sole assignment of error, defendant contends the trial court erred when it denied his Motion to Quash the bill of information due to the fact the statute with which he was charged, LSA-R.S. 15:542C, is unconstitutional. In support of his claim, defendant cites the case of Doe v. Harris, 772 F.3d 563 (9th Cir. 2014). In Harris, the Ninth Circuit held that the plaintiffs, challenging a newly-applicable California sex offender registration statute, were entitled to injunctive relief. The court reasoned the statute was likely unconstitutional because it was not narrowly tailored to serve an important governmental interest and unduly restricted the speech of sex offenders no longer on probation. However, due to the procedural posture of the case, the court did not rule on the merits of the plaintiffs' claims. Harris, 772 F.3d at 583. In this matter, defendant argues the mandatory provision that sex offenders register all email addresses to the State is a similar speaker-based restriction that improperly curtails his freedom of anonymous online speech. As a result, defendant argues, the statute is unconstitutionally overbroad, chilling on speech, and is therefore unenforceable. Defendant concedes that the Harris plaintiffs were under no governmental supervision, in contrast to him remaining on probation. However, defendant also argues his case is best resolved through the probation revocation/modification process through his still-pending Ascension Parish case.

The State argues that no notice was given to the Attorney General's Office, and consequently, the appeal is not yet properly before this court. The State contends the conviction and sentence should be vacated and the case remanded to provide the Attorney General an opportunity to be heard. The State's brief does not address the merits of defendant's claim. In turn, defendant makes no argument regarding the necessity of including the Attorney General in the proceedings.

Statutes are presumed to be valid, and the constitutionality of a statute should be upheld whenever possible. State v. Hart, 96-0599 (La. 1/14/97), 687 So.2d 94, 95. A constitutional challenge may not be considered by an appellate court unless it was properly pled and raised in the trial court below. State v. Hatton, 07-2377 (La. 7/1/08), 985 So.2d 709, 718 ; State v. Green, 16-0057, p. 6 (La.App. 1 Cir. 6/1/18), 2018 WL 2453456 (unpublished), writ denied, 18-1060 (La. 11/14/18), 256 So.3d 281. More specifically, a constitutional challenge to a state law must be pled or litigated in the trial court in order for the issue to be considered on appeal. Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94), 646 So.2d 859, 864-65 (constitutionality of statute must first be questioned in trial court; plea of unconstitutionality must be specifically pled to be considered by trial court); cf. Basco v. Dorthy R. Racine Trucking, Inc., 97-2740 (La.App. 1 Cir. 12/28/98), 725 So.2d 606, 609-10, writ denied, 99-0263 (La. 3/19/99), 740 So.2d 119.

In the case of a declaratory judgment action, where a statute is alleged to be unconstitutional, the state attorney general must be served with a copy of the proceeding and given the opportunity to be heard. LSA-C.C.P. art. 1880 ; LSA-R.S. 49:257C ("Notwithstanding any other law to the contrary, the attorney general, at his discretion, shall represent or supervise the representation of the interests of the state in any action or proceeding in which the constitutionality of a state statute or of a resolution of the legislature is challenged or assailed."); Vallo, 646 So.2d at 864 ; see also Williams v. Monroe City Sch. Bd., 13-2602 (La. 1/10/14), 131 So.3d 833, 834 (per curiam) (The purpose of the service requirement in LSA-C.C.P. art. 1880 is to ensure that the attorney general is "afforded the necessary opportunity to be heard as the codal article requires.") (citing Burmaster v. Plaquemines Parish Gov't, 07-2432 (La. 5/21/08), 982 So.2d 795, 801 n.6 ); State v. White, 18-0702 (La.App. 1 Cir. 8/7/18), 2018 WL 3752118 (unpublished). While the "attorney general is not an indispensable party" in a declaratory judgment proceeding under LSA-C.C.P. art. 1880, he is still to be served a copy of the "pleading which contests the constitutionality of a statute." Cf. State v. Schoening, 00-0903 (La. 10/17/00), 770 So.2d 762, 765-66 n.9 (citing Vallo, 646 So.2d at 864 ).

In all other actions challenging the constitutionality of a statute, the Louisiana Supreme Court has held the Attorney General should be served a copy of the pleadings. Vallo, 646 So.2d at 864. Additionally, LSA-R.S. 13:4448 requires the courts of appeal and the Louisiana Supreme Court to notify the Attorney General and afford him an opportunity to be heard prior to adjudicating the constitutionality of a state statute. State v. V.L.G., 11-0634, p. 16 (La.App. 3 Cir. 12/7/11), 2011 WL 6077831 (unpublished). Following that service, the Attorney General then has the discretion to represent the State's interests at any subsequent proceedings. State v. Rogers, 14-1435, n.3 (La.App. 1 Cir. 6/5/15), 2015 WL 3547116 (unpublished) (Attorney General should have been served notice of constitutional challenge below and, at his discretion, been allowed to be heard and represent or supervise the State's representation).

In this matter, although defendant clearly raised his. constitutionality claim in the trial court, and the trial court explicitly found the statute constitutional, there is nothing in the record indicating that the Attorney General was given any notice of defendant's constitutional challenge. Neither the motion to quash nor the memorandum in support of the motion to quash show a certificate of service indicating notice to the Attorney General. Although defendant subsequently filed a motion to reset the motion to quash, requesting "additional time ... to give proper notice to the Attorney General's Office as provided by law," nothing in the record indicates that such notice was given. On October 1, 2018, this court submitted notice to the Attorney General of the pending constitutional claim in accordance with LSA-R.S. 13:4448. On October 15, 2018, the Attorney General submitted a brief, arguing that it had not been permitted to participate in defending the constitutionality of the statute at the trial court level, and, alternatively, that the underlying claim was meritless. The Attorney General argues the State has a compelling interest in protecting minors from sexual abuse, and the statute is narrowly tailored to accomplish that end.

The procedural facts reveal that the Attorney General was not afforded a meaningful opportunity to participate in the proceedings. Because the Attorney General was not served with defendant's constitutional challenge at the trial court level, we must vacate the judgment of the trial court and remand the case for a new trial, at which time the Attorney General shall be afforded a full opportunity to be heard and participate in these proceedings. See Williams v. Monroe City Sch. Bd., 13-2602 (La. 1/10/14), 131 So.3d 833, 834 (per curiam).

CONCLUSION

For the foregoing reasons, defendant's conviction and sentence are vacated, and the case is remanded to the trial court for further proceedings consistent with this opinion.

CONVICTION AND SENTENCE VACATED; REMANDED.

      Because the conviction is the result of a guilty plea, the underlying facts are not fully developed.

      Louisiana Revised Statutes 15:542 provides, in relevant part:
      A. The following persons shall be required to register and provide notification as a sex offender or child predator in accordance with the provisions of this Chapter:
      (1) Any adult residing in this state who has pled guilty to, has been convicted of, or where adjudication has been deferred or withheld for the perpetration or attempted perpetration of, or any conspiracy to commit either of the following:
      (a) A sex offense as defined in R.S. 15:541,
      * * *
      B. (1) The persons listed in Subsection A of this Section shall register in person with the sheriff of the parish of the person's residence, or residences, if there is more than one, and with the chief of police if the address of any of the person's residences is located in an incorporated area which has a police department. If the offender resides in a municipality with a population in excess of three hundred thousand persons, he shall register in person with the police department of his municipality of residence.
      * * *
      C. (1) The offender shall register and provide all of the following information to the appropriate law enforcement agencies listed in Subsection B of this Section in accordance with the time periods provided for in this Subsection:
      * * *
      (m) Every e-mail address, online screen name, or other online identifiers used by the offender to communicate on the internet. If the offender uses a static internet protocol address, that address shall also be provided to the appropriate law enforcement agency. Required notice must be given before any online identifier or static internet protocol address is used to communicate on the internet. For purposes of this Subparagraph, "static internet protocol address" is a numerical label assigned to a computer by an internet service provider to be the computer's permanent address on the internet.


author: HIGGINBOTHAM, J.

text:
    STATE of Louisiana in the INTEREST OF J.S.
    NO. 2018 KJ 1245
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2018
    Hillar C. Moore, III, District Attorney, Otha Curtis Nelson, Jr., Dylan C. Alge Baton Rouge, LA Attorneys for Appellee, State of Louisiana
    Katherine M. Franks, Louisiana Appellate Project, Madisonville, LA, Attorney for Defendant-Appellant, J.S.
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

J.S. was charged by petition in juvenile court with accessory after the fact in the commission of attempted first degree murder, a violation of La. R.S. 14:30, La. R.S. 14:27, and La. R.S. 14:25 (count 1), and illegal possession of a firearm by a juvenile, a violation of La. R.S. 14:95.8 (count 2). J.S. denied the allegations. J.S. filed motions to suppress and quash, which the juvenile court ultimately dismissed as moot. At an adjudication hearing, following the presentation of evidence, the juvenile court adjudicated J.S. delinquent as charged on both counts, and ordered a pre-disposition report. At the disposition hearing, the juvenile court sentenced J.S. to five years in the custody of the Department of Public Safety and Corrections, and ordered that J.S. be placed in a facility to address his needs. The juvenile court denied J.S.'s post-verdict motion to vacate the adjudication hearing. Although the minute extract indicated that J.S. was sentenced to serve five years on count one, as well as five years on count two to be served concurrently, on the signed "Judgment/Commitment Order," the juvenile court listed J.S.'s sentences to be five years on count 1 and six months on count 2 to be served concurrently. J.S. now appeals, designating three assignments of error. We affirm the adjudications and judgment of dispositions.

FACTS

Testimony was adduced at an adjudication hearing indicating that during the evening of March 14, 2018, J.S. and some of his friends approached another group of boys near a store in south Baton Rouge. The victim M.R., testified that J.S.'s group went by the name "BB-for-L," whereas he and his friends went by the name of "FAN." M.R. first testified that he saw one member from each group about to fight, but then clarified that he was supposed to fight one of the boys from "BB-for-L." Both M.R. and one of his friends saw N.D., a member of "BB-for-L," pull out a gun, and his friend alerted the rest of their group that N.D. had a gun. M.R.'s group began running away, and as M.R. was running, he realized that he had been shot in the shoulder from behind. M.R. testified that he heard four shots. M.R. identified J.S. in open court as one of the people present that evening, and testified that J.S. was standing behind the shooter. M.R. also noted that no one in his group had a gun, and that everyone was in relatively close proximity to each other when the shooting started, though he ran in a different direction.

One of M.R.'s friends, D.B., also testified about that night. D.B. was familiar with J.S. and N.D. He confirmed M.R.'s version of the events, where some of the boys from "BB-for-L" sought to fight two members of "FAN." As they were about to fight, D.B. saw N.D. fire a gun, identifying it by the "sparks." D.B. testified that at that point, he fled because he did not want to get shot. D.B. also heard four gunshots as he ran away. D.B. explained that no one in their group had a gun. D.B. identified J.S. as one of the members of "BB-for-L" that was at the scene.

S.B., younger brother of D.B., also testified. His recollection was not as clear as that of M.R. or D.B., but he did recall seeing a firearm, running away, and hearing four shots. S.B. said he saw N.D. hold the gun and pull the trigger.

Baton Rouge Police Department Detective Joshua Brogan testified for the State. Det. Brogan investigated the crime scene and recovered four spent shell casings found in a line on the street. Det. Brogan testified that in his experience, that configuration indicated the shooter was moving either towards or away from an intended target. Upon his arrival, uniformed officers had already detained four victims at the scene, with one more being transported to the hospital. While Det. Brogan initially focused his investigation on N.D. as the perpetrator, he later developed J.S. as a suspect and interviewed him in the presence of J.S.'s mother. J.S. indicated he understood his Miranda rights, and waived them by signing a waiver form. The juvenile court found J.S. knowingly and voluntarily waived his rights, and without objection admitted his statement into evidence.

In the interview video, recorded on Det. Brogan's body camera and played for the court, J.S. admitted that he stole the gun from his sister's boyfriend, who lived in the same home. J.S. said he stole the gun in anticipation of the fight and that no one told him to bring one. The same firearm was subsequently located in J.S.'s home pursuant to a search warrant, and J.S. admitted it was the firearm used by N.D. in the shooting. J.S. also admitted to running away after the first two shots, but then stopping and waiting for N.D. to catch up. After they met back up, N.D. gave the gun back to J.S. to return it to the location from which he stole it. J.S. testified that he moved it because he felt the police would be looking for the gun soon. Det. Brogan testified that J.S. did not contact the police to report an attempted murder, but was instead only found after the detective interviewed N.D.

ASSIGNMENTS OF ERROR # 1, # 2: INSUFFICIENT EVIDENCE

In J.S.'s first two assignments of error, he contends that the State presented insufficient evidence to find him delinquent beyond a reasonable doubt of either charged offense. With regards to the accessory after the fact charge, J.S. posits that the State did not affirmatively establish that he assisted N.D. evade arrest or conviction after N.D. shot the gun four times at the fleeing boys. Moreover, J.S. argues that the State did not establish beyond a reasonable doubt that N.D. committed attempted first degree murder. As for the possession of a firearm charge, J.S. asserts that there was no independent evidence to support his conviction. Specifically, and relative to both charges, J.S. claims nothing was presented to the juvenile court in support of a delinquency adjudication outside of his own uncorroborated statement to Det. Brogan. Without more, J.S. concludes, finding him delinquent on solely his own statements contradicts established Louisiana jurisprudence on corpus delicti. In response, the State argues that the evidence, viewed in a light most favorable to the prosecution, supports the delinquency adjudication of both offenses.

In a juvenile adjudication proceeding, the State must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. La. Ch. Code art. 883. The burden of proof, beyond a reasonable doubt, is no less severe than the burden of proof required in an adult proceeding. State in Interest of S.T., 95-2187 (La. App. 1st Cir. 6/28/96), 677 So.2d 1071, 1074. Accordingly, on appeal the standard of review for the sufficiency of evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the State proved the essential elements of the crime beyond a reasonable doubt, is applicable to delinquency cases. See La. Code Crim. P. art. 821. Further, because a review of the law and facts in a juvenile delinquency proceeding is constitutionally mandated, an appellate court must review the record to determine if the juvenile court was clearly wrong in its factual findings. See State in Interest of D.M., 97-0628 (La. App. 1st Cir. 11/7/97), 704 So.2d 786, 789-90.

Uncorroborated Statement

First, we will address J.S.'s corpus delicti claim underlying the challenge to both adjudications. The Louisiana Supreme Court has noted that "[t]he overwhelming weight of authority is to the effect that there cannot be a lawful conviction of a crime unless the corpus delicti is established; that is to say, unless it is shown that a crime has been committed by some one." State v. Morgan , 157 La. 2, 963, 103 So. 278, 279 (1925) ; see also State v. Hayden, 171 La. 495, 503, 131 So. 575, 578 (1930) ("[C]orpus deliciti ... must be established in every prosecution and ... does not pertain to the guilt or innocence of the particular accused ...."). Thus, "it is well established that an accused party cannot be legally convicted on his own uncorroborated confession without proof that a crime has been committed by someone; in other words, without proof of the corpus delicti." State v. Freetime, 334 So.2d 207, 210 (La. 1976). Moreover, "[p]roof that defendant was the person who engaged in this unlawful conduct is of course necessary for a conviction, but it is not an element of the corpus delicti." Freetime, 334 So.2d at 210. The corpus delicti must be proven by evidence which the jury may reasonably accept as establishing that fact beyond a reasonable doubt. State v. Willie, 410 So.2d 1019, 1029 (La. 1982), appeal after remand, 436 So.2d 553 (La. 1983), cert, denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 723 (1984) ; State v. Trahan, 2010-0554, p. 6 (La. App. 1st Cir. 10/29/10), 2010 WL 4272859 (unpublished), writ denied, 2010-2631 (La. 9/2/11), 68 So.3d 523. Additionally, "independent proof need not go to every element of the offense; and, it may be direct or circumstantial in nature." State v. Fisher, 2013-1152, p. 3 (La. App. 1st Cir. 6/6/14), 2014 WL 3765945 (unpublished). Once corpus delicti is independently established, however, a confession alone may be used to identify the defendant as the perpetrator of the crime.

State v. Celestine, 452 So.2d 676, 678 (La. 1984) ; State v. Carter, 521 So.2d 553, 555 (La. App. 1st Cir. 1988).

Here, it is uncontroverted that the act underlying the instant prosecutions took place; namely N.D. fired a gun that he obtained from "someone" at the fleeing boys. N.D. was evidently found unarmed when found by responding officers, and the officers presumptively learned of J.S.'s involvement from him. Therefore, the crime of both the gun getting into the hands of N.D. to be fired at several people, and its subsequent secreting, was committed by "someone." See State v. Jordan, 2014- 32, p. 4 (La. App. 1st Cir. 10/13/15), 2015 WL 5968258 (unpublished), writ denied, 2015-2090 (La. 3/31/17), 217 So.3d 357 (where deceased victim was in possession of controlled substances prescribed to someone else, namely defendant, "the commission of a crime by someone relative to the receipt of the controlled dangerous substance was established."); State v. Duperon, 2012-0810, p. 4 (La. App. 1st Cir. 12/21/12), 2012 WL 6681847 (unpublished) (uncontroverted testimony that fire was intentionally set with a lighter was itself sufficient to allow jury to conclude fire occurred as a result of someone's criminal act). Evidence of this was established by the testimony of M.R., D.B., and S.B., prior to Det. Brogan taking the witness stand. State v. Carson, 336 So.2d 844, 847-48 (La. 1976) (before accused's confession may be introduced into evidence, State must first prove that a crime had been committed, by evidence which jury may reasonably accept as establishing that fact beyond reasonable doubt); see also State v. Olivier, 2006-2041, p. 2 (La. App. 1st Cir. 5/4/07), 2007 WL 1300818 (unpublished), writ denied, 2007-1550 (La. 5/2/08), 979 So.2d 1278 (the source of the testimony is irrelevant to the establishment of the corpus delicti, so long as the statements are not those of the accused). It is also a misstatement to claim that there was no independent corroborating information. Following the confession, the uncontested lawful search warrant executed on the home of J.S. revealed a firearm matching the one used in the shooting, and J.S. admitted to its use therein. State v. Connolly, 96-1680 (La. 7/1/97), 700 So.2d 810, 820 (purpose of the corroboration rule is to test the reliability of a confession and thereby prevent an erroneous conviction based solely on an untrue confession).

In sum, regarding J.S.'s argument as to a lack of corpus delicti, an offense was committed by "someone" in the process of arming N.D., and then another when "someone" hid the firearm after the shooting occurred. J.S.'s statement was a lawfully obtained confession, which was corroborated by evidence obtained in Det. Brogan's investigation and search warrant execution. The firearm was found in the house J.S. said he took it from, and there was nothing to indicate that N.D. had obtained it through any manner other than J.S. handing it to him. Regarding whether a crime had been committed by someone, even without J.S.'s inculpatory statement, the State satisfied its burden that a crime occurred. State v. Thibodeaux, 98-1673 (La. 9/8/99), 750 So.2d 916, 927, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146 L.Ed.2d 800 (2000) (independent proof need not go to every element of the offense, and it may be either direct or circumstantial in nature). Once the corpus delicti was established, J.S.'s statement to police could be used as further evidence of his culpability. See Celestine, 452 So.2d at 678.

Accessory After the Fact

To prove a violation of La. R.S. 14:30(A)(3), the State must show the offender has a specific intent to kill or to inflict great bodily harm upon more than one person. Specific criminal intent is that "state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act." La. R.S. 14:10(1). Specific criminal intent does not have to be proven as fact, but may be inferred from the circumstances and actions of the defendant. State v. Boyer, 406 So.2d 143, 150 (La. 1981). Pointing and firing a gun at someone while at close range supports a finding of specific intent to kill. La. R.S. 14:10 ; State v. Tassin, 536 So.2d 402, 411 (La. 1988), cert, denied, 493 U.S. 874, 110 S.Ct. 205, 107 L.Ed.2d 159 (1989) ; State v. Neslo, 433 So.2d 73, 87 (La. 1983) ; State v. Noble, 425 So.2d 734, 736 (La. 1983) ; State v. Williams, 383 So.2d 369, 373 (La. 1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 828 (1981) (firing a gun at close range will support a finding of specific intent to kill under any standard of review); State v. Procell, 365 So.2d 484, 492 (La. 1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2164, 60 L.Ed.2d 1046 (1979) (specific intent may be inferred from the act of pointing a gun at someone and firing at close range). Similarly, to prove attempted first degree murder, the State must show that the defendant committed an act with the specific intent to kill multiple victims, but did not ultimately succeed in killing them. La. R.S. 14:30 ; La. R.S. 14:27 ; cf. State v. Bishop, 2001-2548 (La. 1/14/03), 835 So.2d 434, 437 (attempted second degree murder requires specific intent to kill).

An accessory after the fact is any person, who, after the commission of a felony, harbors, conceals, or aids the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment. La. R.S. 14:25 ; State v. Chism, 436 So.2d 464, 467 (La. 1983). Moreover, it is "necessary to prove the guilt of the principal beyond a reasonable doubt..." Chism, 436 So.2d at 467 ; State v. Hopkins, 39,730 (La. App. 2d Cir. 8/17/05), 908 So.2d 1265, 1271, writ denied, 2005-2253 (La. 3/17/06), 925 So.2d 541 (to convict of accessory after the fact, the State must prove beyond a reasonable doubt that a felony was committed before the defendant rendered assistance to the felon, the defendant knew or had reasonable grounds to know that the felony was committed, and the defendant gave aid to the felon personally under circumstances indicating either he actively desired that the felon avoid or escape arrest, trial, conviction, or punishment or that he believed one of these consequences was substantially certain to result from his assistance); State v. Hall, 2003-0906 (La. App. 5th Cir. 5/26/04), 875 So.2d 996, 1003, writ denied sub nom., State v. Barnes, 2004-1875 (La. 12/10/04), 888 So.2d 834 (the statute requires only the general intent of the offender that the person who committed the felony will escape arrest, trial, conviction or punishment, and intent may be inferred or proven by circumstantial evidence). Finally, the failure to report a crime to law enforcement does not render one an accessory after the fact. State v. Jackson, 344 So.2d 961, 963 (La. 1977).

Here, it is uncontested that N.D. repeatedly fired the gun in the direction of M.R. and the others as they were standing in very close proximity. J.S. contends on appeal that the State failed to establish that N.D. was attempting to murder more than one person. As evidence, J.S. points to the "single line" of shell casings observed by Det. Brogan during his initial investigation. Notwithstanding this, the mere fact that N.D. fired in the direction of several fleeing victims who started at close range was sufficient for the State to establish beyond a reasonable doubt an attempted first degree murder had been committed. See State v. Wilson, 93-0617 (La. App. 5th Cir. 1/25/94), 631 So.2d 1213, 1220 writ denied, 94-0476 (La. 11/4/94), 644 So.2d 1046 (statute defining first degree murder as killing of human being when defendant has specific intent to kill or to inflict great bodily harm upon more than one person does not require proof that defendant actually killed or inflicted great bodily harm upon second victim, only that he had specific intent to do so); see also State v. Tyler, 342 So.2d 574, 582 (La. 1977), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977) (fact only one shot fired by defendant did not require acquittal of charge of first degree murder based on La. R.S. 14:30(A)(3), on ground shooting into a crowd indiscriminately with intent to kill someone is considered an assault with intent to kill each of them); State v. Allen, 40,972 (La. App. 2d Cir. 5/17/06), 930 So.2d 1122, 1129, writ denied sub nom., State ex rel. Allen v. State, 2008-0507 (La. 11/26/08), 997 So.2d 543 (defendant's action in firing a sequence of gunshots into confined space where the owner and employee were standing implied that the defendant either intended to kill both women, or he intended to inflict great bodily harm). Moreover, it stands to reason that even assuming arguendo N.D. had only committed an attempted second degree murder, the felony requirement of La. R.S. 14:25 would still have been satisfied. Cf. State v. Rodrigue, 441 So.2d 1274, 1278 (La. App. 1st Cir. 1983), writ denied, 445 So.2d 436 (La. 1984) ( La. Code Crim. P. art. 821(E) permits appellate court to modify verdict and render conviction of responsive offense where court finds evidence supports conviction of responsive offense).

Additionally, the State alleged J.S. intended to aid N.D. by taking the firearm and hiding it after N.D. fired upon the rival boys. In the State's view, the act of taking the gun and hiding it was intended to aid N.D. avoid prosecution following his shooting of M.R. This is clearly the case here, where J.S. witnessed N.D. firing the gun at the boys, a felony, and immediately thereafter took the gun to return it to where it had originally been hidden. That J.S. did not tell law enforcement of the crime is not in itself dispositive of guilt, however, when coupled with the act of hiding the gun, it is evidence J.S. intended to conceal evidence of the crime from the authorities. See e.g. State v. Franks, 377 So.2d 1231, 1232 (La. 1979) (by loading truck with stolen goods and driving burglars in getaway vehicle from scene of burglary, defendant committed an overt act from which trier of fact could reasonably infer that defendant acted with specific intent to aid burglars and prevent their arrest).

Illegal Possession of a Firearm by a Juvenile

As an initial matter, La. R.S. 14:95.8(A) provides:

It is unlawful for any person who has not attained the age of seventeen years knowingly to possess any handgun on his person. Any person possessing any handgun in violation of this Section commits the offense of illegal possession of a handgun by a juvenile.

An adjudication of J.S. as delinquent for illegal possession of a handgun requires a finding that J.S. had actual, not merely constructive, possession of the gun. State in Interest of R.D. , 2012-0619 (La. App. 4th Cir. 10/3/12), 126 So.3d 504, 506, writ denied, 2012-2495 (La. 4/19/13), 111 So.3d 1030 ; State in Interest of D.V. , 2013-1283 (La. App. 4th Cir. 5/7/14), 144 So.3d 1097, 1101, writ denied, 2014-1105 (La. 6/11/14), 141 So.3d 268. Given J.S.'s statement to law enforcement, as well as the corroborating evidence of the gun used in the shooting being found in the residence where J.S. said he took it, the State established beyond a reasonable doubt that J.S., not yet seventeen at the time of the offense, actually possessed the gun both before and after N.D. fired it at the retreating boys.

The trier of fact, in this case, the juvenile court, is charged with making credibility determinations. Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the fact finder. State ex rel. T.C., 2009-1669 (La. App. 4th Cir. 2/16/11), 60 So.3d 1260, 1263. Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. Id.S ee Tibbs v. Florida, 457 U.S. 31, 46, 102 S.Ct. 2211, 2220-21, 72 L.Ed.2d 652 (1982). Such a determination rests solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witness. T.C., 60 So.3d at 1263. A trier of fact's determination as to the credibility of a witness is a question of fact entitled to great weight, and its determination will not be disturbed unless it is clearly contrary to the evidence. Id.See State v. Vessell, 450 So.2d 938, 943 (La. 1984). Given the admissible evidence corroborating J.S.'s statement properly presented by the State, in a light most favorable to the prosecution, the State proved J.S. delinquent of both offenses beyond a reasonable doubt.

ASSIGNMENT OF ERROR # 3: EXCESSIVE SENTENCE

In his final assignment of error, J.S. claims he was sentenced excessively by the juvenile court. Though La. R.S. 14:95.8(B)(1), illegal possession of a firearm by a juvenile, provides that on a first conviction, an offender shall be fined not more than $100.00 and imprisoned not less than ninety days nor more than six months, the minute extracts indicated that J.S. was to serve five years on count 2, to run concurrently with his sentence on count 1, for accessory after the fact in the commission of attempted first degree murder. That said, on the signed judgment of disposition, the juvenile court corrected the term on count 2 to six months. In the transcript, the juvenile court stated that "The Court commits [J.S.] to the Department of Public Safety and Corrections and the Office of Juvenile Justice for a period of five years" without specifying individual sentences for each offense. The State argues there is no need for correction where the judgment of disposition is correct, and the transcript only shows the juvenile court ordering a commitment of five years on the other charge.

If there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So.2d 732, 734 (La. 1983) ; State in Interest of N.H., 2008-2464 (La. App. 1st Cir. 3/27/09), 11 So.3d 27, 29, n.2. In this case, the minutes reflect an illegal sentence on count 2, the transcript reflects no sentence on count 2, and the judgment/commitment order reflects a legal sentence on count 2. Accordingly, there is no express conflict between the written disposition and the transcript that would warrant a reversal or a remand for clarification. See State in Interest of A.D., 2016-0439, p. 12 (La. App. 4th Cir. 9/28/16), 2016 WL 5416351 (unpublished).

ADJUDICATIONS AND DISPOSITIONS AFFIRMED.

      Pursuant to Rules 5-1(a) and 5 -2 of the Uniform Rules-Courts of Appeal, the initials of the juveniles involved in this matter will be used instead of their names.

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

      In the absence of specific procedures provided by the Louisiana Children's Code, the court shall proceed in accordance with the Louisiana Code of Criminal Procedure. See La. Ch. Code art. 803.