text:
    Vince ARCURI, a/k/a Vincent Arcuri, Individually and as Trustee of the 18913 Chaville Road Residential Land Trust, Under Trust Dated April 15, 2008, Appellant, v. HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR SG MORTGAGE SECURITIES TRUST 2006-FREI, Asset Backed Certificates, Series FREI, Appellee.
    Case No. 2D16-4201
    District Court of Appeal of Florida, Second District.
    Opinion filed December 7, 2018
    Nick Fowler and Sami Thalji of Stamatakis + Thalji + Bonanno, Tampa, for Appellant.
    Karusha Y. Sharpe and M. Hope Keating of Greenberg Traurig, P.A. Tallahassee, and Michele L. Stocker of Greenberg Taurig, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

Affirmed.

NORTHCUTT, CASANUEVA, and BLACK, JJ., Concur.

The appellee's motion for rehearing is granted. The opinion of this court issued March 2, 2018, is withdrawn, and the attached disposition is substituted in its place. No further motions for rehearing will be entertained.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Billy GEAR, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2425
    District Court of Appeal of Florida, First District.
    December 10, 2018
    Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Benjamin L. Hoffman and Samuel B. Steinberg, Assistant Attorneys General, Tallahassee, for Appellee.
   Lewis, J.

Appellant, Billy Gear, appeals his convictions and sentences for first-degree murder and kidnapping. He contends that the trial court erred in admitting the dog tracking evidence and in denying his motion for judgment of acquittal on the kidnapping charge. We affirm as to the denial of the motion for judgment of acquittal without discussion, and affirm as to the admission of the dog tracking evidence for the reasons that follow.

BACKGROUND

Appellant and the victim, Melissa Darnell, had custody disputes over their infant son. On December 29, 2015, Sergeant Bryan Hayden of the Taylor County Sheriff's Office served Appellant with a court order to take custody of the infant-with whom Appellant had disappeared during a visit at Melissa's home-and returned the child to Melissa. Hayden informed Appellant, who was upset, that he could contest custody at the court hearing that was scheduled for the following week. After law enforcement reunited Melissa with the child, Appellant told his acquaintances that if he was not granted visitation at the upcoming custody hearing, he was going to kill Melissa.

On January 6, 2016, at the custody hearing, the court granted Melissa custody. According to witness testimony and security footage, she and Appellant left the Taylor County Courthouse together around 2:30 p.m. Jimmy Jordan and his wife saw a man brutally pushing and shoving a woman by the shoulders towards the woods behind the Wal-Mart in Perry and called 911 around 2:49 p.m. Law enforcement officers responded to the 911 dispatch and waited outside the woods. Sergeant Jay Ricketson of the Perry Police Department saw Appellant exiting the woods behind Wal-Mart in a hurried fashion. Appellant appeared nervous and sweaty, was breathing heavily, and had blood on him. During his initial encounter with police, Appellant claimed he had been running and playing in the woods with his male cousin, that the person he was seen pushing into the woods was the cousin, who had long hair, and that Melissa had gone home following the custody hearing. Shortly thereafter, the police found blood and drag marks in the woods and then discovered Melissa's remains covered with debris and surrounded by court documents. Appellant's cousin denied seeing Appellant during the day in question. As the police uncovered further evidence refuting Appellant's version of events, his account continued to change. He eventually admitted to the police that he covered up Melissa's body, but claimed her death was an accident-a contention that was later repudiated by the medical examiner's findings, as well as by Appellant's confession to a jail mate. The medical examiner observed injuries on Melissa consistent with having been dragged and determined that her cause of death was non-accidental crushing neck trauma with another significant attributing condition of a fractured jaw. While in the Taylor County Jail, Appellant told his cellmate that due to custody issues, he assaulted Melissa in the Wal-Mart parking lot, took her to a path in the woods, and beat her to death by crushing her neck and dislocating her jaw. Appellant also told the police that he had been in those woods months prior.

On January 8, 2016, the police contacted Kelly Walker with the First Response Search Team about helping them find missing clothing. Walker testified that she is retired from the sheriff's office, where she worked for thirty-two years; she described her experience as a K-9 handler, in which capacity she has been working since 1992; and she explained that the First Response Search Team, of which she is the president, is a nonprofit organization that assists law enforcement and trains its dogs to work much older trails than the patrol units. Walker conducted a track of the scene with her K-9 about forty-four to forty-eight hours after Jordan's 911 call.

Walker testified that she performed the track with her trailing dog Bella, who is a bloodhound and scent specific, meaning she follows the scent she is presented with. Walker described Bella's training, which began at the age of four months and continued through her retirement at the age of ten years, and believed the track in this case was her last one. Bella's retirement had to do only with her age and the availability of a replacement canine and not with any decrease in her ability to track. Bella did a couple of hundred trails and proved reliable at scent trailing-she was successful "most all of the time." At the time of the track at issue, Bella held a National Association of Search and Rescue certificate and was proficient in tracking scents that were thirty-six to forty-eight hours old. Although Bella had the capacity to track thirty-day-old scents, she was only trained to track scents up to fifty-eight hours old. Bella had in the past successfully done tracks where she recreated someone's steps and had also successfully tracked an over three-day-old missing person's trail for well over a mile and led Walker to a trailer home where it was confirmed the person had been.

In this case, Bella was presented with Appellant's cap in a vacant lot by the Wal-Mart entrance and she began tracking from where Jordan saw the man pushing the woman into the woods, to the area where Melissa's remains were found, and then to the area where Appellant was apprehended by police upon exiting the woods. Walker had not been told about the geography and significant locations related to the case. Bella never lost Appellant's scent, which she continuously tracked, allowing Walker's team to locate several items of evidence.

The evidence of Bella's tracking was admitted over the defense's objection. Appellant argued that the State was using the evidence improperly to recreate a track and that the evidence was unreliable, but the trial court found it met the indicia of reliability. Following the jury's verdict finding Appellant guilty as charged, the trial court adjudicated him guilty on both counts and sentenced him to consecutive terms of life imprisonment. This appeal followed.

ANALYSIS

We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Wilcox v. State , 143 So.3d 359, 373 (Fla. 2014). Dog tracking evidence is admissible if a proper foundation is laid. McCray v. State , 915 So.2d 239, 241 (Fla. 3d DCA 2005) (citing in part Green v. State , 641 So.2d 391 (Fla. 1994) ). The foundation requirement pertains to establishing the reliability of the dog, which may be accomplished by introducing evidence of the dog's breed, training, past performance, and other indicia of reliability. Id. ; see also Toler v. State , 457 So.2d 1115, 1117 (Fla. 1st DCA 1984) (explaining same).

In Toler , we held that the trial court did not err by admitting the dog tracking evidence because "Lieutenant Miller's testimony that Bloodhound Andy had successfully tracked humans on seven prior occasions and his testimony that Andy had been extensively trained to track humans provided a sufficient foundation." 457 So.2d at 1117. In that case, the appellant was tried and convicted for burglary of a dwelling and the dog, with whom Lieutenant Miller had worked on seventeen occasions, traced "a scent" from the ditch where the stolen property was found to the area near the victim's trailer where footprints with a unique grid-like design and tire tracks from a vehicle with at least three different kinds of tires that could have been left by the appellant's boots and truck were found. Id. at 1116-17.

Similarly, in Green v. State , the supreme court rejected the appellant's argument that the trial court should have excluded evidence of a dog's scent tracking because "the character and dependability of the dog were established, the officer who handled the dog was trained, and the evidence was relevant"; "[i]n addition, there were indicia of reliability: the tracking occurred within hours of the crime and the area had been secured shortly after the crime occurred, ... and there was a continuous track to the home of Green's sister." 641 So.2d 391, 393-94 (Fla. 1994) (noting that the trial court found that "although the scent tracking was the only evidence that established Green's identity, corroboration included ... Green's presence at his sister's house earlier that day").

More recently, in McCray , the Third District concluded that the trial court did not abuse its discretion by admitting the dog tracking evidence because there was ample evidence to establish its reliability where the dog's handler testified that he has trained dogs to track for more than thirty-five years and worked with this particular dog for four years; the handler explained that the dog's training included weekly tracking practice and that in the past two years they did twenty tracks, some of which resulted in apprehensions; and, in the case, the crime scene area was secured within minutes, the tracking started within five minutes of the crime and the defendant's flight, the tracking began where the defendant was last seen, the dog picked up the track immediately, the track was continuous, and the dog located the defendant in his hiding place near the crime scene. 915 So.2d at 240-42.

Turning to the case before us, Appellant maintains that the trial court erred by admitting the dog tracking evidence because it was unreliable. We disagree. The dog's reliability was established for a proper foundation through Walker's testimony that Bella is a bloodhound, she started training at the age of four months and continued training until her retirement at the age of ten years, she had done hundreds of tracks and proved reliable, she was successful at trailing "most all of the time," the track at issue was within her proficiency, and she was trained to track scents up to fifty-eight hours old. Moreover, additional indicia of reliability were present in this case given that the crime scene was secured, Bella's handler was not told of the geography or significant locations, and Bella tracked Appellant's scent continuously, without hesitation.

Appellant emphasizes that the tracking took place in an area where he had previously been in suggesting that the dog picked up an old scent. However, the only evidence about when Appellant had last been in the woods was a detective's testimony that Appellant stated during a police interview that he had been in the woods months prior to the crime. Walker testified that although Bella was capable of tracking thirty-day-old scents, she was trained to track scents only up to fifty-eight hours old. In addition to Bella having neither the training nor the capability to track a scent that is months old, the testimony was that Bella's track was continuous and connected the significant areas of the crime scene, indicating that she was following Appellant's scent from the time of the crime.

Appellant further argues that the dog tracking evidence in this case was used in an improper and unprecedented manner because the dog essentially recreated his alleged path instead of tracking with the goal of finding a suspect, corpse, or specific item at the end of the trail. However, that is a distinction without a difference. In either scenario, the dog is tracking the scent a person had left behind and is, thus, recreating/following that person's path, and even when tracking to find a suspect or missing person, there is no guarantee that the person will be at the end of the trail. While finding the target at the end of the trail provides additional indicia of reliability, equivalent indicia of reliability is present here because upon being presented with Appellant's scent, Bella started tracking from the place where Jordan saw a man forcefully pushing a woman into the woods, to the victim's body in the woods (where Appellant eventually admitted to having been at the time of the crime), and then to the back of the Wal-Mart where Appellant was apprehended by the police. Bella's tracking was continuous and she even located missing pieces of evidence along the way. We further note that Walker testified that Bella had successfully tracked people's paths in the past where the person was not found at the end of the trail and gave an example of a three-day-old missing person's trail.

Moreover, the dog tracking evidence admitted in this case is not unique. In fact, we are bound by Toler , where we upheld the admissibility of dog tracking evidence even though a person was not located at the end of the trail; indeed, even less indicia of reliability was present there because the dog was not presented with the appellant's scent, but was used to track "a scent." Likewise, in Green , the supreme court upheld the admissibly of dog tracking evidence where the dog tracked to a place where the appellant was known to have been earlier in the day, not where he was actually found at the end of the trail.

Accordingly, we conclude that the trial court did not abuse its discretion in admitting the dog tracking evidence and affirm Appellant's convictions and sentences.

AFFIRMED .

Ray and M.K. Thomas, JJ., concur.


author: Per Curiam.

text:
    Arnold James ODOM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4201
    District Court of Appeal of Florida, First District.
    December 12, 2018
    Bruce Miller, Public Defender, and Charles E. Russell, Assistant Public Defender, Shalimar, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Lewis, Winokur, and Jay, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Demeshio WARD, Respondent.
    No. 1D18-4230
    District Court of Appeal of Florida, First District.
    December 12, 2018
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Petitioner.
    Charlie Cofer, Public Defender, and Elizabeth Hogan Webb, Assistant Public Defender, Jacksonville, for Respondent.
   Per Curiam.

DISMISSED.

Lewis, Winokur, and Jay, JJ., concur.


author: PER CURIAM.

text:
    Alvaro ELIAS, Appellant, v. The STATE of Florida, Appellee.
    No. 18-2532
    District Court of Appeal of Florida, Third District.
    Opinion filed December 20, 2018
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Gabrielle Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before LOGUE, SCALES and LINDSEY, JJ.
    ON MOTION TO REVIEW ORDER DENYING POST-TRIAL RELEASE
   PER CURIAM.

Alvaro Elias seeks review of the trial court's denial of Elias's Florida Rule of Criminal Procedure 3.691(b) motion for post-trial release pending review of his conviction and sentence. We have jurisdiction. See Fla. R. App. P. 9.140(h)(4). In denying Elias's motion for post-trial release, the trial court was required to enter a written order setting forth the factual basis on which the court reached its decision and the reasons for its denial. See Fla. R. Crim. P. 3.691(b) ; Fla. R. App. P. 9.140(h)(3). The lower court committed reversible error in failing to enter such a written order. See Metayer v. State, 52 So.3d 691, 692 (Fla. 4th DCA 2010) ; Montgomery v. State, 788 So.2d 274, 275 (Fla. 4th DCA 2000) ; Buckhalter v. State, 416 So.2d 862, 862 (Fla. 1st DCA 1982). Accordingly, we grant Elias's motion for review, reverse the denial of Elias's motion for post-trial release, and remand for the lower court to reconsider Elias's motion in accordance with the applicable criminal and appellate rules within three days of the date of this opinion. If the lower court again denies post-trial release, it must make the necessary written findings to support the denial.

Reversed and remanded for further proceedings consistent with this opinion.


text:
    Robin Lawrence JOHNSON, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4737
    District Court of Appeal of Florida, First District.
    December 12, 2018
    Stacy A. Scott, Public Defender, and Logan Doll, Assistant Public Defender, Gainesville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits.

LEWIS, WINOKUR, and JAY, JJ., concur.


text:
    Jaime Lynn DEVEREAUX, Appellant, v. Cory STRICKLAND, Appellee.
    No. 4D18-2777
    District Court of Appeal of Florida, Fourth District.
    December 12, 2018
    Jaime Lynn Devereaux, Boynton Beach pro se.
    Craig A. Boudreau, West Palm Beach, for appellee.
   Per Curiam.

Affirmed . See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150 (Fla. 1979).

Gross, May and Conner, JJ., concur.


text:
    STATE of Louisiana v. Tedrick Jewan RICHARDSON
    NO. 2017-K-0210
    Supreme Court of Louisiana.
    December 3, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF RAPIDES
    Writ denied.
    JOHNSON, C.J., would grant and assigns reasons.
    I would grant and docket defendant's writ application to allow the parties to brief and argue the issue of whether the state presented sufficient evidence of negligent homicide.
    In this case, defendant was found guilty of negligent homicide and two counts of attempted second degree murder based on three drive-by shootings committed on September 28, 2011 in Alexandria. Generally, on that evening, defendant borrowed a car and then he, Quantavious "Taye" Frazier, and Michael Dotson rode around Alexandria in it shortly before and after midnight. The vehicle was used in three drive-by shootings which took place on three different streets: Texas Avenue, Monroe Street, and Ninth Street. The Texas Avenue shooting produced the only fatality. The timeline of events is unclear and the order in which the shootings occurred is disputed. The State asserted the Texas Avenue shooting occurred first. Defendant claimed the Texas Avenue shooting occurred last, and he claimed he was in the backseat when Dotson, who was driving, fired out of the sunroof. According to defendant, he had been smoking marijuana and had his head leaned back on the headrest when Dotson just started shooting.
    Defendant was charged with second degree murder, and the jury found him guilty of negligent homicide. Negligent homicide is defined as "the killing of a human being by criminal negligence." R.S. 14:32. Thus, "criminal negligence" is the requisite mental state that the prosecution must have proven to support defendant's conviction as a principal. For defendant to be guilty as a principal, the state had to meet a two-prong test. It had to prove beyond a reasonable doubt that defendant was: 1) criminally negligent and thereby had the requisite mental state; and 2) "concerned" in the commission of a negligent homicide. See State v. Martin , 539 So.2d 1235, 1238 (La. 1989).
    In my view, it does not appear that the state presented sufficient evidence to satisfy either prong. Criminal negligence is defined in R.S. 14:12 : "Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances." Unlike general or specific criminal intent, criminal negligence is essentially negative. Rather than requiring that the accused intend some consequence of his actions, criminal negligence is found from the accused's gross disregard for the consequences of his actions. Martin , 539 So.2d at 1238. The majority of the panel of the court of appeal found sufficient proof of negligent homicide reasoning "the jury could have found defendant criminally negligent in this instance because 'the evidence supports a finding that the circumstances indicate that the [defendant], in the ordinary course of human experience, must have averted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.' " State v. Richardson , 16-0107 (La. App. 3 Cir. 12/28/16), 210 So.3d 340, 357-58 (internal citation removed). This statement was the majority's only analysis concerning defendant's negligent homicide conviction, and the majority failed to explain how the ordinary course of human experience would indicate that the reasonably certain result of one resting in someone's backseat after smoking marijuana would be someone being shot and killed.
   At the very least, a determination of whether the state presented sufficient evidence of negligent homicide in the Texas Avenue shooting depends on the order of the shootings. The order which the shootings occurred is relevant in evaluating defendant's mens rea . If the Texas Avenue shooting occurred first, it is difficult to agree with the determination of the majority of the panel of the court of appeal that defendant should have known that Dotson would start shooting out of the vehicle while defendant rested his head after smoking marijuana. However, if the Texas Avenue shooting occurred last, after the group rode around and had already shot at two other people, and defendant opted to remain in the car and smoke marijuana, his actions more likely support a negligent homicide conviction. The order of the shootings cannot be determined with any certainty without delving into the record. In my opinion, whether the state presented sufficient evidence of negligent homicide is a very fact-intensive inquiry, which requires a thorough review of the record to answer. Thus, I would grant and docket the defendant's writ to allow for briefing on this issue and oral argument.


text:
    CITY OF MORGAN CITY v. Tager ROSSON
    No. 2017-KP-1260
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE CITY COURT OF MORGAN CITY, PARISH OF ST. MARY
    Writ denied.
    HUGHES, J., additionally concurs and assigns reasons.
    I respectfully concur with the denial of the application as moot given that relator has undoubtedly served his six-month misdemeanor sentence by now.
   However, I find the conduct of the city court judge disturbing.

The city court's sentence appears to have been indeterminate because of its attempt to suspend the execution of sentence by retaining jurisdiction over it until after relator's Assumption Parish proceedings had been completed. Under the language of Article 894(A)(1), the city court did not have the authority to suspend the execution of relator's simple battery sentence without also placing him on probation. Without this grant of probation, the city court sentence likely should have begun to run on the day following its imposition. Therefore, relator appears to have presented a meritorious claim of illegality.

Just as the judge in the 23rd Judicial District cannot tell the city court judge what his sentence is going to be, the city court judge has no authority over the district judge. He cannot "wait and see" in order to modify his sentence if he doesn't like the district court's sentence.

Counsel's objections were well taken. Hopefully this scenario will not come again to the attention of this court.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Joseph Michael MOULTRIE
    NO. 2018-K-0134
    Supreme Court of Louisiana.
    December 3, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF TERREBONNE
    Writ denied.
   WEIMER, J., recused.

CRICHTON, J., would grant and assigns reasons.

GENOVESE, J., would grant and assigns reasons.

This case involves the concept of constructive possession of narcotics to support a conviction at trial. Here, the defendant was inarguably not in physical possession of the narcotics at issue; thus, the state had to prove that the defendant had constructive possession. That is, the state had to prove beyond a reasonable doubt that the defendant exercised "dominion and control" over the narcotics. See State v. Trahan , 425 So.2d 1222, 1226 (La. 1983). The fact that a defendant had physical presence in an area of the contraband is found does not prove he exercised "dominion and control" over that contraband. State v. Toups , 01-1875 (La. 10/15/02), 833 So.2d 910, 913. For the reasons assigned by Judge Holdridge in his dissent, I question whether the evidence in this case establishes constructive possession under these well-established standards, and I would grant the writ to examine whether the evidence was sufficient to support the conviction.

would grant for the reasons assigned by Judge Holdridge and additionally avers: there was no evidence that defendant was in possession of any drugs, drug paraphernalia, any large sum of money, or any evidence associated with drug use or trafficking; there was no proof or connection between defendant and the cocaine found in the BBQ grill; the BBQ grill was not defendant's grill; the grill where the drugs were found was not seized as evidence, nor identified from any photograph at trial; defendant did not live on the property where the grill was located; and, there were no witnesses to this event. At best, this is a circumstantial evidence case. In circumstantial evidence cases, La.R.S. 15:438 requires the State to exclude every reasonable hypothesis of innocence. This, I find, the State failed to do.

      This is not inconsistent with this Court's per curiam in State v. Moultrie , 15-2144 (La. 6/29/17), 224 So.3d 349. At that stage, the Court was examining the validity of a warrantless search, and found there was no reasonable expectation of privacy in the grill at issue. This writ is not concerned with the Fourth Amendment standards for a warrantless search, but rather with whether there was sufficient evidence to support defendant's conviction under Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The standards for the analyses are entirely different.


author: PER CURIAM:

text:
    STATE of Louisiana v. Mark Wayne THIBODEAUX
    No. 2018-KH-1239
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU
   PER CURIAM:

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

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

Genovese, J., recused.


text:
    STATE of Louisiana v. Rufus James HAMPTON, III
    No. 2018-KH-1393
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

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

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

Crichton, J., recused.


text:
    STATE EX REL. Franklin D. CHURCH v. STATE of Louisiana
    No. 2018-KH-0064
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON
   PER CURIAM:

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

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


text:
    STATE EX REL. Jeremy JONES v. STATE of Louisiana
    No. 2018-KH-0046
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
   PER CURIAM:

Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189. The application is also repetitive. La.C.Cr.P. art. 930.4.

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


text:
    STATE EX REL. Robert Lee SCOTT v. STATE of Louisiana
    No. 2017-KH-2111
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF MOREHOUSE
   PER CURIAM:

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

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

Hughes, J., would grant the writ for an evidentiary hearing.


text:
    STATE EX REL. Johnas DURALL v. STATE of Louisiana
    No. 2017-KH-1919
    Supreme Court of Louisiana.
    December 3, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

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

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


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 18-PDB-035
    NO. 2018-OB-1476
    Supreme Court of Louisiana.
    December 3, 2018
    Leave to appeal denied.


text:
    Ronald Anthony PEMBO, III v. Dana Montecino PEMBO
    Dana Montecino Pembo v. Ronald. Anthony Pembo, III
    NO. 2018-C-1390
    Supreme Court of Louisiana.
    December 3, 2018
    Granted and remanded to the court of appeal for briefing, argument, and full opinion on the exception of res judicata.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 18-PDB-017, 18-PDB-018, 18-PDB-022
    NO. 2018-OB-1488
    Supreme Court of Louisiana.
    December 3, 2018
    Leave to appeal denied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO. 18-PDB-040
    NO. 2018-OB-1492
    Supreme Court of Louisiana.
    December 3, 2018
    Leave to appeal denied.


text:
    IN RE: Appeal of the DECISION OF the DISCIPLINARY BOARD NO; 18-PDB-041
    NO. 2018-OB-1493
    Supreme Court of Louisiana.
    December 3, 2018
    Leave to appeal denied.


text:
    STATE EX REL. Lucas RODDY v. STATE of Louisiana
    NO. 2017-KH-1719
    Supreme Court of Louisiana.
    December 3, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Roddy v. State, 15-0017 (La. 10/30/15), 178 So.3d 132.


author: HUGHES, J., would grant.

text:
    STATE EX REL. Deasonte PENNINGTON v. STATE of Louisiana
    NO. 2017-KH-1803
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Kendrick MATTIRE
    NO. 2018-KP-0370
    Supreme Court of Louisiana.
    December 3, 2018
    Denied. Untimely. See La.S.Ct.R. X § 5; see also State v. Crandell, 05-1060 (La. 3/10/06), 924 So.2d 122.


author: GENOVESE, J., recused.

text:
    STATE of Louisiana, et al. v. The LOUISIANA LAND AND EXPLORATION COMPANY, et al.
    NO. 2018-CC-1981
    Supreme Court of Louisiana.
    December 7, 2018
    Denied.
   GENOVESE, J., recused.


text:
    Robert Carter JUSTICE v. Kathryn Talley JUSTICE
    NO. 2018-CJ-1928
    Supreme Court of Louisiana.
    December 5, 2018
    Denied.


text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, k/d/s Promix, L.L.C., and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2018-C-1431
    Supreme Court of Louisiana.
    December 3, 2018
    Denied.


text:
    STATE EX REL. Raymond MOORE v. STATE of Louisiana
    NO. 2017-KH-1418
    Supreme Court of Louisiana.
    December 3, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


text:
    STATE of Louisiana v. Bradley BERRY
    NO. 2017-KO-1146
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. Joseph LAWSON
    NO. 2018-KH-1414
    Supreme Court of Louisiana.
    December 17, 2018
    Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    STATE of Louisiana v. Iley DOTCH
    NO. 2018-KH-1634
    Supreme Court of Louisiana.
    December 17, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


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

text:
    STATE of Louisiana v. Keith TROSCLAIR
    NO. 2018-KK-2007
    Supreme Court of Louisiana.
    December 9, 2018
    Writ granted. Finding no abuse of discretion in the trial court's factual determinations and analysis under the circumstances of this case, the ruling of the court of appeal is reversed and the order of the trial court excluding the defendant's 911 call as inadmissible hearsay is reinstated.
   JOHNSON, C.J., would deny.

HUGHES, J., concurs with the grant of the state's writ application and reinstatement of the ruling of the trial court. Should the defendant testify at trial, however, the subject 911 call will be admissible.


text:
    STATE of Louisiana v. Eric D. PAYNE
    NO. 2018-KK-1641
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    William W. ALDEN, M.D., et al. v. John K. EASON, Esq.
    NO. 2018-CC-1657
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.
   HUGHES, J., would grant.


text:
    J. BOONE DEVELOPMENT, LLC v. MILTON WATER SYSTEM, INC., et al.
    NO. 2018-CC-1675
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Robert Earl SANDERS
    NO. 2018-KO-0342
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. Lionel RICHARDSON
    NO. 2018-KO-0315
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. Roger RICHARDS
    NO. 2018-KH-1716
    Supreme Court of Louisiana.
    December 17, 2018
    WRIT NOT CONSIDERED. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R. X § 5(b).


text:
    Lolita COUSINS v. Dr. Mitchell A. PIERCE, Jr. and Smile Solutions, DMD
    NO. 2018-CC-1593
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    Carolyn Beasley WEBB O/B/A Myesha Cantrell Webb (Deceased) Minor Children Dharius Marquis Hudson, Messiah Lee Hudson and Makhi James Hudson v. STATE of Louisiana, THROUGH The OFFICE OF JUVENILE JUSTICE D/B/A Bridge City Center for Youth
    NO. 2018-CC-1668
    Supreme Court of Louisiana.
    December 17, 2018
    Denied.


text:
    STATE of Louisiana v. Leonard LEWIS
    NO. 2018-KH-1554
    Supreme Court of Louisiana.
    December 17, 2018
    Denied. Untimely filed pursuant to La.S.Ct.R. X § 5.
   GENOVESE, J., recused.


text:
    Earlis WILLIAMS and Kaonta Minor, Individually and on Behalf of her father, Earlis Minor v. PEL HUGHES PRINTING COMPANY
    NO. 2018-CA-0613
    Court of Appeal of Louisiana, Fourth Circuit.
    OCTOBER 24, 2018
    G. Karl Bernard, G. KARL BERNARD & ASSOCIATES, LLC, 1615 Poydras Street, Suite 101, New Orleans, LA 70112, COUNSEL FOR PLAINTIFFS/APPELLANTS
    Laurie L. DeArmond, Patrick D. DeRouen, Matthew J. Hamilton, Adam Boyer, DeROUEN LAW FIRM, 650 Poydras Street, Suite 2005, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods)
    Judge Regina Bartholomew-Woods Appellants, Earlis Williams and Kaonta Minor, appeal the March 29, 2018 judgment of the Orleans Parish Civil District Court denying their "Motion to Reconsider Court's Ruling Granting Defendant's Exception of No Cause of Action." For the reasons that follow, we dismiss the appeal as untimely.
    PROCEDURAL BACKGROUND
    Appellants filed a Petition for Damages on May 20, 2016. Appellees filed an exception of no cause of action and a hearing on the exception was scheduled for November 3, 2017. Counsel for Appellant did not appear at the scheduled hearing, apparently as a result of misreading the scheduling order. The district court signed a judgment granting the exception on November 3, 2017, and the judgment was mailed on November 7, 2017. On November 27, 2017, Appellants filed a "Motion to Reconsider Court's Ruling Granting Defendant's Exception of No Cause of Action." On March 16, 2018, the district court orally denied the motion in open court. The district court signed the judgment on March 29, 2018. On April 17, 2018, Appellants filed a motion to appeal, which the district court granted on April 24, 2018.
    ANALYSIS
    Appellant's motion to reconsider is premised upon the existence of "good ground" therefor, language drawn from La.C.C.P. art. 1973, which provides that "[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law." Specifically, Appellants asserted good ground existed for reconsideration because counsel had inadvertently scheduled the wrong date for the hearing on the exception. Counsel therefore failed to file a timely opposition, and failed to appear for the hearing. The district court, therefore, did not address the merits of the exception, according to Appellants, despite their suggestion that a valid cause of action exists. Indeed, counsel for Appellant even suggested in its brief that it knew "amending would be necessary and proper" at the time the Petition for Damages was filed.
    As noted herein, the district court mailed notice of signing of judgment on November 7, 2017. Though captioned a "motion to reconsider," Appellants' motion is properly considered a motion for new trial. "The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913." La.C.C.P. art. 1974. Since Appellants did not file the "motion to reconsider"
    until well after seven days had elapsed, on November 27, 2017, it is untimely, thereby making the motion for appeal untimely, as well.
    This Court addressed the same issue in Tennebaum v. LeCompte , 2015-0008, pp. 1-2 (La.App. 4 Cir. 8/12/15), 173 So.3d 1185. Appellant in that case untimely filed a motion for new trial, and thereafter relied on the date of the judgment on the motion for new trial for purposes of calculating the delay in which to appeal. However, this Court observed that " '[a]n untimely motion for a new trial does not stop the appellate delays from running.' " Id. , 2015-0008, p. 2, 173 So.3d at 1185 (quoting First Nat. Bank of Commerce v. Boydell , 2003-0613, p. 3 (La.App. 4 Cir. 9/24/03), 857 So.2d 1115, 1117 ). As a result, this Court concluded that " '[a]bsent a timely motion for appeal, the appellate court lacks jurisdiction over the appeal.' " Id. (quoting Falkins v. Jefferson Parish Sch. Bd. , 1997-26, p. 2 (La.App. 5 Cir. 5/9/97), 695 So.2d 1005, 1006 ).
    The same reasoning must be applied here. Accordingly, we dismiss Appellants' appeal for lack of jurisdiction.
    APPEAL DISMISSED

      Appellees contested this point at the hearing on the motion, and a review of the November 3, 2017, transcript indicates the district court did briefly address the merits of the exception.


author: SAVOIE, Judge.

text:
    Linda M. SNAVELY, et al. v. ACE PAIN MANAGEMENT, LLC, et al.
    17-239, 17-237, 17-238
    Court of Appeal of Louisiana, Third Circuit.
    December 13, 2017
    Alan K. Breaud, Timothy W. Basden, Breaud & Meyers, 600 Jefferson Street, Suite 1101, Lafayette, LA 70502, (337) 266-2200, COUNSEL FOR DEFENDANTS/APPELLANTS: Ace Pain Management, LLC, Rice Medical Management, LLC, Margaret Rice, M.D., APMLLC Margaret A. Rice, M.D., Stacey E. Singleton
    Joseph Lomax Jordan, Jr., Max Jordan, Lawyer, 1817 W. University Ave., Lafayette, LA 70506, (337) 233-9984, COUNSEL FOR PLAINTIFF/APPELLEE: Linda M. Snavely
    James H. Gibson, Charles M. Kreamer, Michael O. Adley, Allen & Gooch, 2000 Kaliste Saloom Rd, Ste. 400 (70508), P.O. Drawer 81129, Lafayette, LA 70598-1129, (337) 291-1000, COUNSEL FOR APPELLEE: J. Lomax Jordan, Jr.
    Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.
   SAVOIE, Judge.

For the reasons set forth in Snavely v. Ace Pain Management, LLC . 17-237 (La.App. 3 Cir. __/__/17), 257 So.3d 1264, the exception of prescription filed by Ms. Snavely and J. Lomax Jordan is granted. Defendants' motions seeking attorney fees as sanctions filed in each of the three consolidated matters are dismissed with prejudice. All costs of this appeal are assessed to Defendants.

PRESCRIPTION EXCEPTION GRANTED; DISMISSED WITH PREJUDICE.


author: GRAVOIS, J.

text:
    REGIONS BANK v. Michelle C. KEYS, a/k/a Michelle M. Cooper Keys, Divorced Wife of/and Jeffrey W. Keys
    NO. 18-CA-97
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, REGIONS BANK, Louis G. Arceneaux, Lafayette, Stacy C. Wheat, New Orleans, Fred J. Daigle, Covington
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson
   GRAVOIS, J.

Plaintiff/appellant, Regions Bank ("Regions"), appeals a trial court judgment rendered on September 29, 2017 and amended on June 29, 2018, which granted a Supplemental Exception of No Right and No Cause of Action filed by defendant, Michelle M. Cooper Keys ("Michelle"), in this foreclosure proceeding. Regions also appeals the denial in said judgment, as amended, of its Motion for Summary Judgment against co-defendant, Jeffery W. Keys ("Jeffery"). For the following reasons, we reverse the judgment insofar as it grants Michelle's Supplemental Exception of No Right and No Cause of Action, vacate the judgment insofar as it denies Regions' Motion for Summary Judgment against Jeffery, and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

In October of 2016, Regions filed a Petition for Foreclosure by Ordinary Process against defendants, Michelle M. Cooper Keys, divorced wife of/and Jeffery W. Keys, alleging that defendants were in default on a promissory note to Regions, dated in 2003, which was secured by a Home Equity Mortgage in favor of Regions, also dated in 2003, which was recorded in the mortgage records of St. John the Baptist Parish. The petition prayed for a monetary judgment against defendants for the principal balance remaining due on the promissory note secured by the mortgage, plus accrued interest and accumulated late charges, and other expenses and costs, and reasonable attorney's fees, as well as for the seizure and sale of the subject immovable property encumbered by the mortgage in order to satisfy the debt owed to Regions. Various attachments to the petition included the promissory note, the mortgage, and a Notice of Reinscription of the mortgage which had been filed in the mortgage records of St. John the Baptist Parish in 2013.

Because service could not be made upon defendants, a curator was appointed to represent them. The curator filed answers to the petition on behalf of defendants, generally denying the allegations of the petition. Michelle later retained counsel who filed an Exception of No Right and No Cause of Action and Answer to the Petition, alleging that the debt in question had been discharged in the bankruptcy court for the Eastern District of Louisiana on October 17, 2013. The pleading further claimed that there had been no "re-acclamation" of the loan with Regions and the Home Equity Mortgage.

In response, Regions filed an Opposition to Michelle's Exception, and later filed a Motion for Summary Judgment against co-defendant Jeffery, arguing that there remained no genuine issues as to any material facts concerning its claims against Jeffery, and that it was entitled to judgment against him as a matter of law, given that the pleadings, including the attachments to the original petition, established the essential facts that Jeffery was a maker of the promissory note in favor of Regions, that Jeffery was in default on the note, and that the note was secured by the duly recorded and reinscribed mortgage in favor of Regions.

Before Michelle's Exception and Regions' Motion for Summary Judgment against Jeffery were heard, Michelle filed a Supplemental Exception of No Right and No Cause of Action, arguing that the Notice of Reinscription of the mortgage in 2013, which was attached to Regions' petition, failed to comply with La. C.C. art. 3362, and thus served to defeat Regions' right to enforce the mortgage against her. Regions filed an Opposition to the Supplemental Exception. On August 11, 2017, the trial court conducted a hearing on the Supplemental Exception and on Regions' Motion for Summary Judgment against Jeffery, taking the matters under advisement at the conclusion thereof, after which Regions filed a post-trial brief.

On September 29, 2017, the trial court rendered judgment granting Michelle's Supplemental Exception, finding that the mortgage's reinscription did not comply with La. C.C. art. 3362, and ordering that the mortgage be cancelled from the public records of St. John the Baptist Parish due to lack of reinscription. Correspondingly, for the same reasons, the trial court also denied Regions' Motion for Summary Judgment against Jeffery. This timely suspensive appeal by Regions followed.

A review of the September 29, 2017 judgment by this Court revealed that it lacked the necessary decretal language to invoke this Court's appellate jurisdiction. On June 25, 2018, this Court ordered the trial court to amend its judgment to include the appropriate and necessary decretal language. In an Amended Judgment signed on June 29, 2018, the trial court satisfied this Court's June 25, 2018 Order by dismissing all of Regions' claims against Michelle.

On appeal, Regions argues that the judgment granting the Supplemental Exception of No Right and No Cause of Action should be reversed because Regions' reinscription of the mortgage complied with La. C.C. art. 3362. Regions also argues that because the reinscription was legal and proper, summary judgment should have been granted in its favor and against Jeffery; it thus also seeks this Court's reversal of the trial court's denial of its Motion for Summary Judgment as to Jeffery.

ANALYSIS

In Executone Sys. Co. of La. v. Jefferson Parish Hosp. Serv. Dist. No. 2 for the Parish of Jefferson , 15-569 (La. App. 5 Cir. 2/24/16), 186 So.3d 1210, 1215, writ denied , 16-0569 (La. 5/13/16), 191 So.3d 1059, this Court set forth the guiding legal principles regarding the exception of no cause of action, to-wit:

For the purpose of the peremptory exception of no cause of action, a "cause of action" refers to the operative facts which give rise to the plaintiff's right to judicially assert an action against the defendant. Scheffler v. Adams and Reese, LLP , 06-1774 (La. 2/22/07), 950 So.2d 641, 646 ; Everything on Wheels Subaru, Inc. v. Subaru South, Inc. , 616 So.2d 1234, 1238 (La. 1993). The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the plaintiff's petition by determining whether the law affords a remedy on the facts alleged in the petition. Id. The exception is triable on the face of the pleadings, and for purposes of resolving the issues raised by the exception, the court must presume that all well-pleaded facts in the petition are true. Scheffler , 950 So.2d at 646 ; City of New Orleans v. Board of Commissioners of the Orleans Levee District , 93-0690 (La. 7/5/94), 640 So.2d 237, 253. Because the exception of no cause of action raises a question of law and the lower court's decision is generally based only on the sufficiency of the petition, review of the lower court's ruling on an exception of no cause of action is de novo . Scheffler , 950 So.2d at 647. Generally, no evidence may be introduced to support or controvert the exception of no cause of action. La. C.C.P. art. 931.
(Emphasis by underlining in original.)

In contrast, the exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons with a legal interest in the subject matter of the litigation. La. Capital Assistance Ctr. v. Dinvaut , 16-383 (La. App. 5 Cir. 12/7/16), 207 So.3d 1187, 1192, citing Badeaux v. Southwest Computer Bureau, Inc. , 05-612 c/w 05-719 (La. 3/17/06), 929 So.2d 1211, 1217. An exception of no right of action assumes that the petition states a valid cause of action and questions whether the plaintiff has a legal interest in the subject matter of the litigation. Id. , citing Marks v. Third Dist. Volunteer Fire Dep't , 13-383 (La. App. 5 Cir. 12/30/13), 131 So.3d 1099, 1101, writ denied , 14-88 (La. 3/14/14), 135 So.3d 606. Accordingly, it is clear that the exceptions of no right of action and no cause of action are not interchangeable; they serve completely different functions.

The trial court stated that the basis of its ruling was that the mortgage reinscription failed to comply with La. C.C. art. 3362, which provides:

A person may reinscribe a recorded instrument creating a mortgage or pledge or evidencing a privilege by recording a signed written notice of reinscription. The notice shall state the name of the mortgagor or pledgor, or the name of the obligor of the debt secured by the privilege, as it appears in the recorded instrument, as well as the registry number or other appropriate recordation information of the instrument or of a prior notice of reinscription, and shall declare that the instrument is reinscribed.

The trial court specifically found that the notice of reinscription in question failed to comply with Article 3362 because it failed to include the "mandatory declaration" that "the instrument is reinscribed." It is apparent from the record that the trial court did not distinguish between the two exceptions when it granted judgment in favor of Michelle and Jeffery and against Regions, but rather apparently only ruled on the exception of no cause of action based on its review of the petition and the attachments thereto. In any event, it is apparent from the record that the exception of no right of action was without merit, as the attachments to the petition, as well as the factual allegations pleaded therein, establish that Regions, as the holder of the promissory note secured by the mortgage, had a legal interest in the subject matter of the suit and thus had the legal right to sue Michelle and Jeffery as the makers of the note and the mortgage.

Upon de novo review of the petition and the attachments thereto, particularly the Notice of Reinscription, we find that Regions has indeed stated a cause of action for foreclosure by ordinary process against Michelle and Jeffery. Specifically, as required by Article 3362, the Notice of Reinscription states the names of the mortgagors or pledgors, or obligors of the debt secured by the privilege as they appear in the recorded instrument ("Jeffery W. Keys and Michelle M. Cooper Keys"), as well as the registry number or other appropriate recordation of the instrument ("File No. 241983"), as well as a declaration that the instrument is reinscribed ("This notice given in order to reinscribe Collateral Mortgage dated 12-12-03 ..."). Article 3362 does not require specific words or phraseology. We thus find as a matter of law that the declaration of reinscription found in the Notice of Reinscription sufficiently complies with the requirements of La. C.C. art. 3362. The language used in the Notice of Reinscription clearly conveys the purpose of the Notice in plain language, which was to reinscribe the specific subject mortgage in the public records of St. John the Baptist Parish.

The trial court also found that the Notice of Reinscription was defective because it referenced the original document as a "Collateral Mortgage," rather than the so-named "Home Equity Mortgage" executed by Michelle and Jeffery. However, we find that the plain language of Article 3362 does not contain the requirement that the mortgage described in the notice of reinscription be referred to by exactly the same title found in the original recordation. It only requires that the specific requirements noted above be fulfilled, which the Notice of Reinscription did in this case.

In its judgment, the trial court stated that "Louisiana jurisprudence has determined a mortgage reinscription to be of no effect after failure to comply with the proper and exclusive method of reinscription," citing Bank One Louisiana v. Lacobee , 35,540 (La. App. 2 Cir. 2/27/02), 811 So.2d 164. This statement of law is correct, however, Lacobee itself is not instructive herein. That case concerned a judicial sale and the distribution of the proceeds that were insufficient to satisfy all of the creditors. In Lacobee , Bank One appealed after its mortgage was ranked inferior to the "O'Neal" judgment. The facts showed that after the O'Neal judgment was duly recorded (creating a judicial mortgage), it was incorrectly cancelled by the Clerk of Court. Five years after its mistake, the Clerk of Court attempted to rectify its earlier erroneous cancellation by marking out the cancellation stamp and writing "reinscribed" on the judgment, which method clearly did not comply with Articles 3333-3336. The trial court attempted to resolve the matter equitably by ranking the "reinscribed" judgment ahead of Bank One's mortgage. The court of appeal, however, finding that the O'Neal judgment had not been reinscribed following the exclusive method of reinscription found in Articles 3333-3336, reversed the trial court and declared the "reinscribed" judgment inferior to a privilege held by Bank One.

Thus, we find that the trial court erred in granting the Supplemental Exception of No Right and No Cause of Action. The judgment is accordingly reversed in this regard and the matter is remanded for further proceedings.

Regarding the denial of Regions' Motion for Summary Judgment against Jeffery, the trial court stated that it was denying the motion not on the merits argued by Regions, but only as a result of the supposedly defective reinscription document. It is thus obvious from the record that the trial court pretermitted addressing the merits of Regions' Motion for Summary Judgment against Jeffery. We accordingly vacate the trial court judgment insofar as it denies Regions' Motion for Summary Judgment against Jeffery. On remand, the trial court is instructed to address the merits of Regions' Motion for Summary Judgment against Jeffery.

CONCLUSION

For the foregoing reasons, the trial court's September 27, 2017 judgment, as amended on June 29, 2018, is reversed insofar as it grants Michelle's Supplemental Exception of No Right and No Cause of Action, and is vacated insofar as it denies Regions' Motion for Summary Judgment against Jeffery. The matter is remanded for further proceedings.

REVERSED IN PART; VACATED IN PART; REMANDED WITH INSTRUCTIONS

      Co-defendant's name is spelled interchangeably as "Jeffrey" and "Jeffery" in the record.

      The petition alleged that the original principal amount of the note was $119,000.00, but at the time of default in July of 2013, the principal amount due was close to $51,000.00.

      The record reflects that Jeffery was represented by the curator at the time the motion for summary judgment was filed, but the curator was released from his duties as curator, possibly improvidently, before the motion for summary judgment was heard.

      It does not appear from the record that Michelle's original Exception of No Right and No Cause of Action was ever ruled upon.

      No appellee briefs have been filed in this matter.

      This case interpreted La. C.C. arts. 3333 -3336, which were repealed by Acts 2005, No. 169, effective July 1, 2006, the same act that enacted La. C.C. art. 3362, which is considered herein.


author: MOLAISON, J.

text:
    STATE of Louisiana v. Christopher LUCIA
    NO. 18-KA-37
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna
    COUNSEL FOR DEFENDANT/APPELLANT, CHRISTOPHER LUCIA, Gwendolyn K. Brown, Baton Rouge
    DEFENDANT/APPELLANT, CHRISTOPHER LUCIA, In Proper Person
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and John J. Molaison, Jr.
   MOLAISON, J.

On October 3, 2017, defendant, Christopher Lucia, pled guilty to one count of first degree robbery, a violation of La. R.S. 14:64.1. The trial court sentenced Mr. Lucia to eight years imprisonment at hard labor as per the plea agreement. Mr. Lucia was granted a pro se appeal. Mr. Lucia's appointed appellate counsel has filed an Anders brief on his behalf, asserting there is no basis for a non-frivolous appeal. Further, Mr. Lucia has filed a pro se supplemental brief assigning errors. For the following reasons, we affirm Mr. Lucia's conviction and sentence and, further, grant appellate counsel's motion to withdraw as attorney of record.

FACTS AND PROCEDURAL HISTORY

In this case, Mr. Lucia's conviction resulted from a guilty plea, so the circumstances surrounding the offense were not fully developed at a trial. Here, the record reflects that on or about November 8, 2016, while in Jefferson Parish and armed with a firearm, Mr. Lucia robbed Chang Zou.

On February 10, 2017, the Jefferson Parish District Attorney filed a bill of information charging Mr. Lucia with one count of armed robbery with a firearm in violation of La. R.S. 14:64 and La. R.S. 14:64.3(A), respectively. At his arraignment on February 13, 2017, Mr. Lucia pled not guilty. Thereafter, Mr. Lucia filed omnibus motions seeking suppression of the evidence, statements, and identification, all of which were denied following a hearing on June 23, 2017.

On October 3, 2107, pursuant to a negotiated plea agreement, the State agreed to refrain from filing a multiple offender bill against Mr. Lucia and amended the bill of information to a charge of first degree robbery, a violation of La. R.S. 14:64.1, in exchange for which Mr. Lucia withdrew his former plea of not guilty and entered a plea of guilty to the amended charge. During the plea colloquy, the trial court asked Mr. Lucia to explain what happened on November 8, 2016 that would lead him to plead guilty to first degree robbery. In response, Mr. Lucia stated that on that date, he robbed the Jade Buddha Restaurant while armed with a weapon, or caused the person whom he robbed to believe that he was armed with a weapon. After accepting Mr. Lucia's guilty plea as having been freely and voluntarily made, the trial court sentenced Mr. Lucia to eight years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence in accordance with the plea agreement.

Mr. Lucia timely filed a pro se motion for appeal on October 25, 2017, which was granted on November 8, 2017. The instant appeal followed.

LAW AND DISCUSSION

Anders Brief

Under the procedure adopted by this Court, 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 , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed counsel has filed a motion to withdraw as counsel of record.

In Anders , supra , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his 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." 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) (internal citations omitted).

In State v. Jyles , supra , 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial 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." Id.

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.

Bradford , supra , 676 So.2d at 1110. 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 the legal point(s) identified by the court, or grant the motion and appoint substitute counsel for the appellant. Id.

In her brief, counsel for Mr. Lucia asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Appellate counsel states that prior to withdrawing his plea of not guilty and entering a plea of guilty, Mr. Lucia was fully informed of the legal consequences of changing his plea by both his trial counsel and the trial court.

Appellate counsel provides that an examination of the plea colloquy revealed that prior to accepting his guilty plea, the trial court advised Mr. Lucia of his constitutional rights to a trial by jury, to remain silent, to confront witnesses, and to compel the attendance of witnesses, in order to ensure that Mr. Lucia was knowingly and intelligently waiving those rights. Further, counsel states that Mr. Lucia was advised that, by pleading guilty, he was also waiving his right to object or assert any defect, such as an illegal arrest, illegal confession or illegal line-up. Counsel notes that Mr. Lucia made no reservation to appeal any pre-trial rulings. Counsel further asserts that Mr. Lucia was informed of the sentencing range to which he was exposed for the crime of first degree robbery, and was advised of the sentence to be imposed by the trial court as a result of his guilty plea. Counsel concludes that there are no credible arguments to advance on appeal and, therefore, requests that this Court grant her request to withdraw and conduct an errors patent review.

Appellate counsel has filed a motion to withdraw as attorney of record, which provides that she has notified Mr. Lucia of the filing of this motion and advised him of his right to file a pro se brief. Additionally, this Court sent Mr. Lucia a letter by certified mail informing him that an Anders brief had been filed and that he had until August 13, 2018 to file a pro se supplemental brief. Mr. Lucia timely filed a pro se supplemental brief.

The State responds that appellate counsel's brief shows a conscientious and thorough review of the record, and a complete description of the procedural history and facts of the case. The State requests that this Court affirm Mr. Lucia's conviction and sentence. It notes that the trial court engaged Mr. Lucia in a Boykin colloquy, whereby Mr. Lucia was made aware of the rights he was waiving by pleading guilty, the sentencing range for his conviction, and that his sentence would be eight years at hard labor, without benefits, which sentence was within the statutory limits pursuant to La. R.S. 14:64.1. The State notes that the trial court fully explained to Mr. Lucia the time limitations for appeal and post-conviction relief. Further, the State agrees with appellate counsel that Mr. Lucia did not reserve any rights to appeal any pre-trial rulings of the trial court prior to pleading guilty and, consequently, has waived those rights. The State further agrees with appellate counsel that Mr. Lucia voluntarily and intelligently entered a plea of guilty and that the record does not contain any non-frivolous issues for appellate review. The State notes that appellate counsel has complied with the procedures set forth in Anders and Jyles and should be granted permission to withdraw.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal.

The indictment properly charged Mr. Lucia and plainly and concisely stated the essential facts constituting the offense charged. It also sufficiently identified Mr. Lucia and the crime charged. See generally La. C.Cr.P. arts. 462 - 466. Further, the minute entries reflect that Mr. Lucia and his counsel appeared at all crucial stages of the proceedings against him, including his arraignment, guilty plea, and sentencing. As such, there are no appealable issues surrounding Mr. Lucia's presence.

Further, Mr. Lucia pled guilty in this case. Under both state and federal jurisprudence, it is well-settled that an unqualified guilty plea waives all non-jurisdictional defects occurring prior thereto, and precludes review of such defects either by appeal or post-conviction relief. State v. Turner , 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Here, defendant entered an unqualified guilty plea and, therefore, all non-jurisdictional defects are waived.

Also, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. 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. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

A review of the record in this case reveals no constitutional infirmity in Mr. Lucia's guilty plea. The record shows that he was aware he was charged with and pleading guilty to the crime of first degree robbery. During the plea colloquy, the trial court advised Mr. Lucia of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination as required by Boykin v. Alabama , supra , and Mr. Lucia indicated that he understood those rights. Further, Mr. Lucia signed the waiver of rights form, indicating he understood he was waiving these rights by pleading guilty.

During his guilty plea colloquy and in his waiver of rights form, Mr. Lucia indicated that he had not been forced, coerced, or threatened into entering his guilty plea. Mr. Lucia was informed during the plea colloquy of the minimum and maximum sentence he faced and of the actual sentence that would be imposed if his guilty plea was accepted. After the colloquy with Mr. Lucia, the trial court accepted Mr. Lucia's plea as knowingly, intelligently, and voluntarily made.

With regard to Mr. Lucia's sentence, La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea.

State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Here, Mr. Lucia's sentence was imposed in accordance with the plea agreement set forth in the record at the time of the plea.

Even if Mr. Lucia could seek review of his sentence, we would find no merit. Here, Mr. Lucia pled guilty to first degree robbery, which is a violation of La. R.S. 14:64.1. The trial judge imposed a sentence of eight years imprisonment at hard labor without benefits, which falls within the sentencing range prescribed by the first degree robbery statute. See La. R.S. 14:64.1.

Moreover, Mr. Lucia's plea agreement was greatly beneficial to him. Prior to the plea agreement, Mr. Lucia was facing an armed robbery charge, with a possible sentence of 99 years to life. Pursuant to the plea agreement, Mr. Lucia received an eight-year sentence on the amended charge of first degree robbery, and the State agreed to forgo filing a multiple offender bill against him.

Based on the foregoing, we find that Mr. Lucia's guilty plea and sentence imposed pursuant to a plea agreement do not present any non-frivolous issues on appeal.

Pro Se Assignment of Error

Mr. Lucia filed a pro se supplemental brief assigning as error that his guilty plea is constitutionally infirm because it was involuntarily and unknowingly made. Specifically, Mr. Lucia contends the trial court owed him a duty to be allowed to proceed to trial or to enter an Alford plea. He further argues that he maintained his innocence to the crime of first degree robbery and that a "hypothetical Alford plea would constitute [his] sentence excessive." Additionally, Mr. Lucia contends that his sentence is excessive because the trial judge failed to articulate every aggravating and mitigating circumstance set forth in La. C.Cr.P. art. 894.1, or to consider those guidelines in particularizing the sentence imposed upon him. Specifically, Mr. Lucia argues the trial judge failed to make a determination as to why he was an unlikely candidate for probation or could not be "rehabilitated by means other than imprisonment," such as "addiction based treatment or Divine Intervention through prayer and sacrifice." Lastly, Mr. Lucia maintains that the brief of his appellate counsel failed to provide a full analysis of his felony conviction; consequently, he requests that this Court deny counsel's motion to withdraw as counsel of record.

In support of his contention that he informed the trial court that he wanted to proceed to trial, Mr. Lucia points to the following verbal exchange found in the record:

THE COURT: And knowing what your options are, it's your desire to proceed to trial?
DEFENDANT: (No response.)
THE COURT: Sir, is your desire to proceed to trial?
DEFENDANT: Yes, ma'am.

When considering the record in its entirety, we find Mr. Lucia takes this response indicating that he wished to proceed to trial out of context. The above questioning by the trial court took place during the Frye hearing, which was held on the same date as, and immediately prior to, the guilty plea proceeding. The record reflects that following Mr. Lucia's answer above, the trial court asked defense counsel whether she had any questions for Mr. Lucia, to which defense counsel responded that she did not have any questions related to Mr. Lucia's answer, but that she was "trying to verify the good time for November 1." Thereafter, discussions between the trial court and defense counsel took place regarding the effect of recent legislative changes to "good time" calculations and whether the date of Mr. Lucia's sentencing in this case would render those changes applicable. According to the record, defense counsel requested permission from the court to make a phone call, and when she returned from doing so, she advised the court that Mr. Lucia would plead guilty.

The record reflects that, at that point of the proceedings, Mr. Lucia was sworn in again, after having previously been sworn in at the commencement of the Frye hearing, and the guilty plea colloquy began. As previously stated, throughout the colloquy, as evidenced by his signature affixed to the waiver of rights form, Mr. Lucia expressed his willingness to plead guilty, his understanding of the crime charged, and the rights he was waiving. Further, he denied that anyone had forced, intimidated, coerced, or promised him anything in exchange for his plea. Specifically, in both the waiver of rights form and during the colloquy, Mr. Lucia waived his right to proceed to a jury trial. Moreover, the record shows that, at times prior to the Frye hearing, during the Frye hearing, and during the colloquy, the court indicated that a jury was being held and was waiting. At one point during the colloquy, the trial judge even requested that the jury be brought in. Other than the one instance referred to by Mr. Lucia in his brief, we have found no other reference in the record wherein he indicated that he wanted to proceed to trial. Consequently, we find Mr. Lucia's plea was knowingly and voluntarily made.

Regarding Mr. Lucia's contention that he maintained his innocence and should have been allowed to enter an Alford plea, the record reflects that he entered an unqualified plea of guilty. On that basis, it appears that a factual basis for Mr. Lucia's guilty plea was not required.

Moreover, Mr. Lucia admitted his guilt to the crime, as evidenced by the following exchange:

THE COURT: What occurred on November 8, 2016, that's causing you to plead guilty to first degree robbery[?]
DEFENDANT: On November 8, 2016, the business of Jade Buddha got robbed[.]
THE COURT: Did you rob the restaurant?
DEFENDANT: No.
THE COURT: Okay, All right. Can you please bring the jury in.
DEFENDANT: Do I say I robbed the restaurant?
THE COURT: Have a seat, sir.
DEFENDANT: Did I say I robbed the restaurant? Yes - yes, ma'am, I robbed the Jade Buddha.
THE COURT: Chance, hold up. Sir, it's very simple. Did you rob it or not rob it? If you didn't rob it, I cannot accept your plea of guilty.
DEFENDANT: Yes, ma'am.

Also, during the colloquy, and in conjunction with the waiver of rights form, Mr. Lucia advised that he was admitting that he committed the crime by pleading guilty to it.

Turning to Mr. Lucia's arguments regarding his sentence, as we previously stated, the record supports a finding that his sentence was imposed in accordance with the plea agreement. Consequently, under La. C.Cr.P. art. 881.2(A)(2), Mr. Lucia is precluded from seeking review of his sentence because it was imposed in accordance with the plea agreement, which was set forth in the record at the time of the plea. For the reasons previously discussed, Mr. Lucia's plea agreement was extremely advantageous to him in light of his prior criminal history, and his sentence fell within the sentencing range set forth in the statute. See La. R.S. 14:64.1(B). Moreover, the trial court is not mandated to comply with La. C.Cr.P. art. 894.1 when a defendant pleads guilty and agrees to the sentence imposed, as occurred in the case sub judice . See State v. Nelson , 17-191 (La. App. 5 Cir. 11/29/17), 232 So.3d 1274, 1283 ; State v. Dickerson , 11-236 (La. App. 5 Cir. 11/15/11), 80 So.3d 510, 521. Accordingly, we find Mr. Lucia's pro se assignment of error to be without merit, and that appellate counsel's motion to withdraw as counsel of record should be granted.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; State v. Weiland , 556 So.2d 175 (La. App. 5th Cir. 1990). Our review revealed no errors patent in this case.

DECREE

For the foregoing reasons, we affirm defendant's conviction and sentence for one count of first degree robbery, in violation of La. R.S. 14:64.1, and 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).

      The record reflects that the State had previously amended the bill on October 2, 2017, from the charge of armed robbery with a firearm to armed robbery. The bill was amended a second time on October 3, 2017, from the charge of armed robbery to first degree robbery.

      Also on October 3, 2017, under Twenty-Fourth Judicial District Court, Case Number 17-0611, as a part of the plea agreement, Mr. Lucia pled guilty to theft of goods in violation of La. R.S. 14:67.10(B)(3) and was sentenced to two years at hard labor, and fines of $150 each to the Indigent Defender Board and the Jefferson Parish Sheriff's Office. Mr. Lucia's conviction and sentence in Case Number 17-0611 are not at issue in this appeal. Additionally, Mr. Lucia's plea was entered without a reservation of his right to appeal the trial court's previous denial of his motions to suppress.

      The trial court also ordered Mr. Lucia to pay fines of $150.00 each to the Indigent Defender Board and the Jefferson Parish Sheriff's Office. Further, the trial court ordered that the eight-year sentence imposed in the instant case would run concurrently with the two-year sentence imposed upon Mr. Lucia in connection with his shoplifting conviction in Twenty-Fourth Judicial District Court, Case Number 17-0611.

      In State v. Bradford , 95-929 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4th Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (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).

      The certified letter sent to Mr. Lucia by this Court was originally sent on February 20, 2018. In response, on March 26, 2018, Mr. Lucia filed a request for an extension of time to file his brief. On March 27, 2018, this Court issued an order that a copy of the appellate record be sent to Mr. Lucia and that granted him an additional 30 days, or until April 27, 2018, to file his pro se supplemental brief. On May 23, 2018, the order mailed to Mr. Lucia on March 27, 2018 was returned to this Court as "undelivered." It was later determined that Mr. Lucia had been transferred to another facility. On July 13, 2018, this Court issued a second order that a copy of the record be sent to Mr. Lucia at this facility and that he be given until August 1, 2018 to file his pro se supplemental brief. Thereafter, the record was once again returned to this Court with a notation that Mr. Lucia had been transferred to a third facility. That same day, the record was sent to Mr. Lucia at the current facility. By order dated August 6, 2018, this Court granted Mr. Lucia an extension of time until August 13, 2018 to file his pro se supplemental brief.

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

      North Carolina v. Alford , 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970).

      What is now commonly referred to as a "Frye hearing" arose out of the case of Missouri v. Frye , 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), wherein the Supreme Court expanded the protection of the Sixth Amendment right to effective assistance of counsel beyond formal legal proceedings to include plea negotiations. As a result, attorneys are required to communicate to their clients every formal plea offer proposed by the State which may be favorable to the accused. Frye , 566 U.S. at 145, 132 S.Ct. 1399. Subsequent jurisprudence has interpreted this expansion to include the duties established by the Supreme Court in Strickland and Padilla , which include the duty to advise the defendant as to the advantages and disadvantages of a plea offer after making reasonable investigations thereof. State v. Surus , 13-903 (La. App. 3 Cir. 4/2/14), 135 So.3d 1236, 1245, writ denied , 14-0882 (La. 2/6/15), 157 So.3d 1136 (citing Strickland v. Washington , 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984) ; Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010) ). The purpose of a Frye hearing is to make a record of the fulfillment of defense counsel's obligation to communicate favorable plea offers and to effectively assist the defendant in deciding whether to accept the State's offer or proceed to trial.

      The "best interest," or Alford plea, is one in which the defendant pleads guilty while maintaining his innocence. State v. McCoil , 924 So.2d at 1122-23. According to Alford , a defendant may plead guilty, without foregoing his protestations of innocence, if "the plea represents a voluntary and intelligent choice among the alternative courses of action open to defendant[,] ... especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant's advantage." State v. Jones , 07-512 (La. App. 5 Cir. 12/27/07), 975 So.2d 21, 24-25, writ denied , 08-325 (La. 9/26/08), 992 So.2d 982.

      While most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of a criminal penalty. An individual accused of a crime may voluntarily, knowingly, and with full understanding consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. Alford , 400 U.S. at 26, 91 S.Ct. at 162. However, pleading guilty under Alford requires the establishment of a factual basis for the plea when a defendant protests that he is innocent. State v. Duncan , 16-493 (La. App. 5 Cir. 2/8/17), 213 So.3d 1247, 1254 n. 6, writ denied sub nom. 17-0668 (La. 2/2/18), 233 So.3d 618. When a defendant pleads guilty under Alford , constitutional due process requires that the record contain strong evidence of actual guilt. McCoil , 924 So.2d at 1123-1124.

      La. R.S. 14:64.1(B) provides that "[w]hoever commits the crime of first degree robbery shall be imprisoned at hard labor for not less than three years and for not more than forty years, without benefit of parole, probation or suspension of imposition or execution of sentence." Consequently, Mr. Lucia was not eligible for probation or rehabilitation by means other than imprisonment.


author: LILJEBERG, J.

text:
    IN RE: Judith SMITH, O/B/O Minor Child, Jordan Joseph SMITH
    NO. 18-CA-62
    Court of Appeal of Louisiana, Fifth Circuit.
    October 17, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, JUDITH SMITH, Joseph F. Lahatte, III
    Panel composed of Judges Marc E. Johnson, Hans J. Liljeberg, and John J. Molaison, Jr.
   LILJEBERG, J.

Appellant, Judith Smith, on behalf of the minor child, Jordan Joseph Smith, appeals a ruling by the trial court, which she contends dismissed a petition to establish paternity she filed on behalf of the minor child. For reasons set forth more fully below, we lack appellate jurisdiction due to the absence of a final appealable judgment and must dismiss this appeal without prejudice.

On July 15, 2015, appellant, Judith Smith, filed a Petition to Establish Paternity and/or Filiation on behalf of the minor child, Jordan Joseph Smith. In the petition, appellant seeks to confirm paternity and establish filiation of the minor child to his alleged father, Raymond Francois, Jr., who died on September 14, 2014. The matter was set for hearing on two occasions but then continued without date. On May 12, 2016, appellant filed a Motion and Incorporated Memorandum In Support for Scientific Paternity Testing. In the motion, appellant stated for the first time that the alleged father of the minor child is "Raymond Francois, Sr." and requested entry of an order to obtain biological samples from, Raymond Francois, Jr., the decedent's legitimate child and alleged half-brother of the minor child. The motion for paternity testing was originally set before the hearing officer on June 21, 2016, and continued on two occasions to September 9, 2016, and then March 9, 2017. The record indicates that, on March 9, 2017, the hearing officer denied appellant's motion for paternity testing. Appellant did not file an objection to the hearing officer's denial.

On September 19, 2017, appellant filed a Motion and Incorporated Memorandum In Support To Reset Hearing On Previously Filed Motion For Scientific Paternity Testing And Filing of Objection by Plaintiff. On September 21, 2017, the lower court denied the motion to reset the hearing on the motion for paternity testing previously denied by the hearing officer and further noted that appellant's objection to the hearing officer's denial was untimely.

On November 16, 2017, appellant filed a motion and order for devolutive appeal seeking review of a judgment "signed on September 19, 2017 dismissing the matter." The trial court granted the order of appeal on November 21, 2017. Appellant contends the judgment at issue is a final appealable judgment because it disposed of the entirety of her case. First, we note the district court did not enter a judgment on September 19, 2017, and we further note that the record does not contain a judgment dismissing the Petition to Establish Paternity and/or Filiation originally filed by appellant. This petition is still pending. We can only assume appellant intends to appeal the ruling entered by the lower court on September 21, 2017, denying appellant's request to reset the hearing on her previously filed motion for paternity testing and further denying her attempt to submit an untimely objection to the hearing officer's prior denial of this motion on March 9, 2017.

Before considering the merits in any appeal, appellate courts have the duty to determine sua sponte whether subject matter jurisdiction exists, even when the parties do not raise the issue. Input/Output Marine Sys. v. Wilson Greatbatch Techs., Inc. , 10-477 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 910. This Court cannot determine the merits of an appeal unless our appellate court jurisdiction is properly invoked by a valid final judgment. Id. at 915.

Only final judgments and interlocutory judgments expressly provided by law are appealable. La. C.C.P. art. 2083. A judgment that determines the merits in whole or in part is a final judgment. La. C.C.P. art. 1841. The ruling at issue in this case, which denies a request to reset a motion for paternity testing no longer pending before the district and declines to consider an untimely objection to that ruling, does not determine the merits of the case in whole or in part and is not an interlocutory judgment appealable by law.

DECREE

Based on the foregoing, we find this Court lacks appellate jurisdiction over this matter. We dismiss the appeal filed by appellant without prejudice and remand this matter to the trial court for further proceedings.

APPEAL DISMISSED WITHOUT PREJUDICE AND REMANDED

      In his second motion to reset the hearing on the motion for paternity testing filed on January 26, 2017, appellant added a request for biological samples from Raynard Alexander Francois, also alleged to be the decedent's legitimate child and half-brother of the minor child.