author: WICKER, J.

text:
    STATE of Louisiana v. Kevin M. PARNELL, Jr.
    NO. 17-KA-550
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, KEVIN M. PARNELL, JR., Lieu T. Vo Clark
    DEFENDANT/APPELLANT, KEVIN M. PARNELL, JR., In Proper Person
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   WICKER, J.

Defendant, Kevin Parnell, Jr., appeals his convictions and sentences for one count of armed robbery with a firearm in violation of La. R.S. 14:64.3(A), one count of aggravated second degree battery in violation of La. R.S. 14:34.7, one count of possession with the intent to distribute marijuana in violation of La. R.S. 40:966(A), two counts of felon in possession of a firearm in violation of La. R.S. 14:95.1 and one count of possession of cocaine in violation of La. R.S. 40:967(C). Defendant's appointed counsel has filed an appellate brief pursuant to Anders v. California and has also filed a motion to withdraw as counsel of record. Defendant has submitted a pro se brief, asserting that his guilty plea is constitutionally infirm and that his sentence was unconstitutionally disproportionate and unreasonable in comparison with the crime. For the following reasons, we affirm defendant's convictions; affirm his sentences on counts two through six; vacate his sentence as to his armed robbery with a firearm conviction; remand to the district court for resentencing on count one, with instructions to clarify defendant's sentence for his armed robbery with a firearm conviction; and grant appellate counsel's motion to withdraw.

Statement of the Case

On March 27, 2017, the Jefferson Parish District Attorney filed a bill of information charging defendant and five co-defendants with multiple offenses. Defendant was charged with armed robbery with a firearm in violation of La. R.S. 14:64.3(A) (count one); aggravated second degree battery with a dangerous weapon, by intentionally inflicting serious bodily injury in violation of La. R.S. 14:34.7 (count two); possession with the intent to distribute marijuana in violation of La. R.S. 40:966(A) (count three); two counts of felon in possession of a firearm in violation of La. R.S. 14.95.1(C) (counts four and six); and possession of cocaine in violation of La. R.S. 40:967(C) (count five). Defendant was arraigned on March 28, 2017, was assigned a public defender and entered a plea of not guilty.

On August 2, 2017, pursuant to a negotiated plea agreement, defendant withdrew his not-guilty plea, and pled guilty to all counts in the bill of information. In accordance with the plea agreement, the district court sentenced defendant to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence on count one; ten years at hard labor on count two; five years at hard labor on count three; ten years at hard labor without benefit of parole, probation, or suspension of sentence on counts four and six; and five years at hard labor on count five. The district court further ordered defendant's sentences to run concurrent with each other with the exception of count five-possession of cocaine-which was ordered to run consecutive to the other counts.

Factual Background

On August 2, 2017, defendant pled guilty without proceeding to trial. The factual basis provided by the State during the guilty plea alleges that on or about February 4, 2017 defendant "committed armed robbery with a firearm in violation of La. R.S. 14.64.3(A) of Carl Holloway of approximately ninety-two thousand dollars in cash, as well as other personal items, while in the Oasis Motel in Gretna." Further as to count two, in violation of La. R.S. 14:34.7, the State alleged that defendant committed aggravated second degree battery when after the victim failed to comply with defendant's demands, defendant hit the victim "over the head with a lamp causing a laceration to his head." Further as to count three, the State announced it would prove "defendant violated Louisiana Revised Statute 40:966(A) in that he did knowingly or intentionally possess, with the intent to distribute, a controlled dangerous substance, to wit, marijuana." As to counts four and six, the "State would further prove that the defendant violated Louisiana Revised Statute 14:95.1, two counts, in that he did have in his possession, two different firearms, having been previously convicted on May 19, 2016, of the crime of possession of cocaine in violation of Louisiana Revised Statute 40:967(C) under Case Number 16-2006, Division "F" in the Twenty Fourth Judicial District Court for the Parish of Jefferson." As to count five, "the State would further prove the defendant also violated Louisiana Revised Statute 40:967(C) in that he did knowingly or intentionally possess a controlled dangerous substance, to wit, cocaine."

Anders Brief

Under the procedure set in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4 Cir. 1990), defendant's appointed appellate counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and could find no non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record. Defendant has also filed a pro se supplemental brief, raising two assigned errors. First, defendant contends that his guilty plea is constitutionally infirm because he did not waive his right against self-incrimination. Second, defendant claims that his sentence is disproportionate and unreasonable.

In Anders , the United States Supreme Court stated that appointed counsel may request to withdraw from representation if counsel finds the case to be wholly frivolous after a conscientious examination of it. In Jyles , the Louisiana 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." Jyles , 704 So.2d at 241.

An appellate court conducts an independent review of the record to determine whether the appeal is wholly frivolous. "When counsel files an Anders brief, an appellate court reviews several items: a) the Bill of Information to ensure that the charge is proper, b) all minute entries to ensure that defendant was present at all crucial states of the prosecution, c) all pleadings in the record, and d) all transcripts to determine whether any ruling of the trial court provides a basis for appeal." State v. Dufrene , 07-823 (La. App. 5 Cir. 2/19/08), 980 So.2d 31, 33. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, the court may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds a legal point arguable on the merits, it may either deny the motion and order the court-appointed counsel to file a brief arguing the legal point identified by the court, or grant the motion and appoint substitute appellate counsel. Id.

In this case, appointed counsel's brief demonstrates that after a thorough review of the record, counsel could not find any non-frivolous issues to raise on appeal. The State agrees, and in its brief urges this Court to grant appointed counsel's motion to withdraw as counsel of record. This court's independent review confirms appointed counsel's assertion that there are no non-frivolous issues to raise on appeal.

First, the bill of information properly charged defendant and clearly, concisely and definitely stated the essential facts constituting the offenses charged and sufficiently identified defendant and the crimes charged. The bill charges defendant with one count of armed robbery with a firearm in violation of La. R.S. 14:64.3(A) (count one); one count of aggravated second degree battery in violation of La. R.S. 14:34.7 (count two); one count of possession with the intent to distribute marijuana in violation of La. R.S. 40:966(A) (count three); two counts of a felon in possession of a firearm in violation of La. R.S. 14:95.1 (count four and count six) and one count of possession of cocaine in violation of La. R.S. 40:967(C) (count five). See La. C.Cr.P. arts. 464 - 466. Second, the minute entries in the record reflect that defendant appeared at each stage of the prosecution against him. Defendant appeared at his arraignment, guilty plea proceeding, and his sentencing.

Third, defendant entered a guilty plea to all charges filed against him. Once a defendant is sentenced, only guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate or when defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. Id. In such a case, the defendant has been denied due process of law in that the plea was not given freely and knowingly. State v. Goff , 13-866 (La. App. 5 Cir. 4/9/14), 140 So.3d 146, 150-51 ; State v. Dixon , 449 So.2d 463, 464 (La. 1984).

A review of the record in this case reflects that defendant was aware he was pleading guilty to the crimes charged: armed robbery with a firearm, aggravated second degree battery, possession with the intent to distribute marijuana, two counts of possession of a firearm by a convicted felon, and possession of cocaine. Defendant was advised of his right to a trial by judge or jury, his right to confrontation, and the privilege against self-incrimination as required by Boykin v.Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Defendant was advised of the waiver of these rights in his Waiver of Constitutional Rights/Plea of Guilty Form, which was signed and initialed by defendant on August 2, 2017, and during the plea colloquy by the district court judge at his sentencing.

During defendant's guilty plea colloquy, defendant acknowledged he had not been coerced or threatened into entering his guilty pleas. The district court judge informed defendant during the plea colloquy and on the Waiver of Constitutional Rights Form of the sentencing ranges for armed robbery with a firearm; aggravated second degree battery; felon in possession of a firearm (two counts); and knowing or intentional possession with the intent to distribute marijuana; and knowing and intentional possession of cocaine. Additionally, the district court judge informed defendant of the actual sentences that would be rendered if the judge accepted his pleas.

After a thorough colloquy with defendant, during which the district court judge informed defendant of the nature of the charges against him by reading the relevant portions of the applicable statutes for each crime, the district court judge accepted defendant's pleas as knowingly, intelligently, freely and voluntarily made. In this case, defendant's sentences were imposed in conformity with the terms of a plea agreement, and defendant's sentences fall within the sentencing ranges set forth in the statutes. See La. R.S. 14:64.3(A) ; La. R.S. 14:34.7 ; La. R.S. 40.966(A); La. R.S. 14:95.1 ; La. R.S. 40:967(C). Louisiana Code of Criminal Procedure Article 881.2 sets forth the procedure for the review of criminal sentences. La. C.Cr.P. art. 881.2 (A)(2) provides: "[t]he defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea." See also State v. Augustine , 14-747 (La. App. 5 Cir. 5/14/15), 170 So.3d 1123.

Upon a review of the record, we find no non-frivolous issues for appeal. Defendant's appointed counsel has adequately shown review and analysis of the record in this case. Our independent review of the record confirms counsel's assertions set forth in the Anders brief. Accordingly, counsel's request to withdraw as counsel is granted.

Pro Se Assignment of Error One

Defendant argues his guilty pleas are constitutionally infirm as he did not waive his privilege against self-incrimination in his signed waiver of rights form nor during the guilty plea colloquy. Defendant asserts that, pursuant to Boykin , he must be adequately informed that he is waiving his right to trial by jury, his right to confront his accusers, and his privilege against self-incrimination. He claims a mere recitation of the rights by the district court, does not, alone, insure a voluntary and intelligent waiver of these rights.

To the extent defendant argues that his guilty pleas should be withdrawn, in order to prevail the defendant must show that his pleas are constitutionally infirm. A plea of guilty is constitutionally infirm if it is not entered by the defendant freely and voluntarily, if the Boykin colloquy is inadequate or when the defendant is induced to enter a plea under a plea bargain or what he believes to be a plea bargain, and the agreement is not kept. McCoil , 924 So.2d at 1124.

A review of the record does not support defendant's argument that he was not informed of his privilege against self-incrimination during his Boykin colloquy or in his waiver of rights form. At defendant's August 2, 2017 sentencing, defendant's counsel informed the court that he had reviewed the Waiver of Constitutional Rights/Plea of Guilty Form with his client. Defendant acknowledged that he understood the terms and conditions on the form, and that he signed the document with his initials. Further, the district court judge advised defendant:

"make certain you understand that you're waiving and giving up the following rights by pleading guilty to your charge: You're waiving your rights to trial by a judge or jury; your right to be presumed innocent until the D.A. proves you guilty beyond a reasonable doubt; your right to require the D.A. to call witnesses to testify against you in open court, under oath, and have an attorney present to question and cross-examine those witnesses on your behalf; your right to testify on your own behalf, if you decide to do so; if you decide to remain silent, your silence would not be held against you, nor be considered evidence of guilt; your right to call witnesses to testify on your behalf at trial and to present other favorable and helpful evidence; and your right to appeal any verdict of guilty that might be returned against you at trial."

Further, the district court judge notified defendant of the sentencing range, and the terms of his plea deal, which defendant acknowledged was in his best interest.

The Waiver of Constitutional Rights/Plea of Guilty Form signed by defendant on August 2, 2017, reflects that defendant made a voluntarily waiver of his rights as required by Boykin . The form indicates defendant waived: the right to trial by judge or jury, the right to be presumed innocent until the District Attorney proves guilt beyond a reasonable doubt, the right to require the District Attorney to call witnesses who would be subject to cross-examination, the right to choose not to testify and not have his silence held against him, the right to present witnesses who would present favorable evidence at trial, and the right to appeal any verdict of guilty that might be returned against defendant at trial. Further, defendant indicates on the form that he is not suffering from any mental or physical impairments, is able to read and write, has not been forced or coerced to enter a guilty plea, and is satisfied with the performance of his attorney. This assignment of error lacks merit.

Pro Se Assignment of Error Two

Defendant argues his twenty-year sentence is constitutionally excessive as it is grossly disproportionate to the seriousness of the offenses and is a needless infliction of pain and suffering. In accordance with the plea agreement, defendant was sentenced on count one to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence; on count two, ten years at hard labor; on count three, five years at hard labor; on each of counts four and six, ten years at hard labor without benefit of parole, probation, or suspension of sentence; and on count five, five years at hard labor. The trial court further ordered defendant's sentences to run concurrent with each other with the exception of count five-possession of cocaine-which was ordered to run consecutive to the other counts. Defendant argues the district court did not consider mitigating guidelines in La. C.Cr.P. art. 894.1(B). Thus, defendant argues his sentence is constitutionally excessive.

As previously stated, the Louisiana Code of Criminal Procedure article 881.2 sets forth the procedure for review of criminal sentences. La. C.Cr.P. art. 881.2(A)(2) provides "[t]he defendant cannot seek appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea." Therefore, defendant is precluded from seeking review of his sentence on appeal, and this assignment of error has no merit. State v. Morin , 16-64 (La. App. 5 Cir. 10/26/16), 203 So.3d 1109, 1111-12 ; State v. Doming , 15-510 (La. App. 5 Cir. 7/27/16), 197 So.3d 812, 817 ; State v. Robinson , 15-661 (La. App. 5 Cir. 2/24/16), 186 So.3d 1269, 1272.

Errors Patent

Defendant requests an error patent review of his convictions and sentences.

This court routinely reviews an appellate record for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990) regardless of whether a defendant requests an errors patent review. The record reflects the following errors:

Crimes of Violence

A review of the transcript reveals that defendant's State of Louisiana Uniform Commitment Order ("UCO") designates defendant's crimes as crimes of violence. At sentencing, the district court did not, however, state that defendant was convicted of a crime of violence.

As a general matter, when there is a discrepancy between the minute entries and the transcript, the transcript must prevail. State v. Collins , 07-0310 (La. 10/12/07), 966 So.2d 534, 535 (citing State v. Lynch , 441 So.2d 732, 734 (La. 1983) ). However, the Louisiana Code of Criminal Procedure designates that certain crimes will always be designated in the minutes as crimes of violence. Among the crimes that "shall always be designated by the court in the minutes as crimes of violence are: "(14) armed robbery...(18) aggravated second degree battery... [and] (20) armed robbery; use of firearm; additional penalty." La. C.Cr.P. art. 890.3(C). Therefore, some of defendant's convictions must be designated as crimes of violence in the district court minutes. See State v. Holloway , 15-1233 (La. 10/19/16), 217 So.3d 343, 346 n.3. However, the minute entry does not reflect which convictions were designated as crimes of violence, therefore, we remand the matter for correction of the commitment to designate specifically which convictions are for crimes of violence.

Indeterminate sentence

With respect to defendant's sentence on count one, armed robbery with a firearm, defendant's sentence appears indeterminate. The March 27, 2017 bill of information charges defendant with armed robbery while armed with a dangerous weapon, a firearm, pursuant to La. R.S. 14:64 and La. R.S. 14:64.3. La. R.S. 14:64 provides that a defendant "shall be imprisoned at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence," and La. R.S. 14:64.3 provides that "[w]hen the dangerous weapon used in the commission of the crime of attempted armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence. The additional penalty imposed pursuant to this subsection shall be served consecutively to the sentence imposed under the provisions of R.S. 14:27 and 64."

Here, defendant was sentenced on count one to fifteen years at hard labor without benefits, and the district court judge did not reference the additional mandatory five-year period of imprisonment when an armed robbery is committed with a firearm pursuant to La. R.S. 14:64.3. The sentence on count one is indeterminate because the trial court did not indicate whether the fifteen-year sentence included the five-year firearm enhancement. Therefore, we vacate defendant's sentence on count one, remand this matter to the district court, and order the district court to resentence defendant on count one. See State v. Ott , 12-111 (La. App. 5 Cir. 10/16/12), 102 So.3d 944.

Illegally Lenient Sentence

Finally, defendant received an illegally lenient sentence on his two felon in possession of a firearm convictions (count four and count six), and on his conviction for possession with intent to distribute marijuana (count three). La. R.S. 14:95.1(B) requires a mandatory fine for a conviction as a felon in possession of a firearm of no less than one thousand nor more than five thousand dollars. La. R.S. 40:966(B)(3) requires a mandatory fine of not more than fifty thousand dollars for a conviction of possession of marijuana with the intent to distribute. Here, neither the minute entries nor the sentencing transcript reflects that a fine was issued to defendant.

This court has found the failure to impose a mandatory fine under a statute to be error, however, the court has occasionally declined to amend a defendant's sentence as a matter of discretion. State v. Kerlec , 06-838 (La. App. 5 Cir. 4/11/07), 957 So.2d 810, 815. La. C.Cr.P. art. 882 gives the appellate court the permissive authority to correct an illegally lenient sentence.

Defendant in this case is indigent and is represented by the Louisiana Appellate Project in this appeal. Further, neither party raised this issue on appeal. Under the circumstances, we decline to exercise our authority to amend the illegally lenient sentences. See State v. Kinard , 12-446 (La. App. 5 Cir. 11/27/12), 105 So.3d 974, 980.

CONVICTIONS AFFIRMED; SENTENCES ON COUNTS TWO THROUGH SIX AFFIRMED; SENTENCE ON COUNT ONE VACATED; REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED.

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

      Defendant's sentences were further ordered to run concurrently with the sentences imposed for defendant's misdemeanor convictions. Defendant's misdemeanor convictions are not subject of the instant appeal.


source: Caselaw Access Project

author: CHEHARDY, C.J.

license: Public Domain

text:
    DOUBLE NRJ TRUCKING, INC. and Ramesh Ramsarup v. Michael G. JOHNSON
    NO. 17-CA-667
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, DOUBLE NRJ TRUCKING, INC. AND RAMESH RAMSARUP, Corey E. Dunbar, Belle Chasse
    COUNSEL FOR DEFENDANT/APPELLEE, MICHAEL G. JOHNSON, Marc R. Michaud, New Orleans
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson
   CHEHARDY, C.J.

Plaintiffs, Double NRJ Trucking, Inc. and Ramesh Ramsarup, appeal the district court's June 20, 2017 judgment denying with prejudice plaintiffs' petition for cancellation of lease and return of vehicle. After our de novo review, we affirm this judgment.

FACTUAL AND PROCEDURAL HISTORY

On April 28, 2017, plaintiffs filed a "Petition for Cancellation of Lease and Return of Vehicle," in which they asserted that because defendant, Michael G. Johnson, failed to make timely payments in accordance with the parties' agreement, they elected to dissolve the lease pursuant to La. C.C. art. 2704 and demand return of the vehicle. The court issued a rule to show cause order that was set for hearing on May 25, 2017. Having not been served with plaintiffs' petition or the show cause order, on May 9, 2017, defendant filed a petition for a declaratory judgment in another division of 24th Judicial District Court. Once defendant was served with plaintiffs' petition and the show cause order, on May 19, 2017, he pled the dilatory exception of unauthorized use of a summary proceeding, arguing that summary procedure was not proper for resolution of the instant dispute pursuant to La. C.C.P. art. 2592. At the show cause hearing on May 25, 2017, the district court overruled this exception and the matter proceeded to a bench trial.

Introduced into evidence was an agreement signed by Mr. Johnson, as "BUYER," and Mr. Ramsarup, as "OWNER," in the presence of two witnesses and a notary. It appears to be dated May 9, 2015 and provided:

This agreement is between Hemwatie and Ramesh Ramsarup and Michael G. Johnson[.] Michael G. Johnson agree[s] to lease to own this 2006 PTRB VIN# 2NPLLZOX16M891894 from Hemwatie and Ramesh Ramsarup[.] Michael G. Johnson agree[s] to pay $1056.00 a week includ[ing] ins[urance] for 192 weeks[.] Michael G. Johnson also agree[s] to fully maintain the truck until all payment is made in full.

Also introduced into evidence was a payment agreement signed by Mr. Johnson, as "BUYER," and Mr. Ramsarup, as "OWNER," in the presence of one witness that provided: "This payment agreement is between Hemwatie and Ramesh Ramsarup and Michael G. Johnson[.] Starting on April 6, 2015 $1056.00 is due on every Monday of the week for 192 weeks until all payment is made in full."

Mr. Johnson, and his wife, Michelle McFarland, both testified that at the time of the agreement they believed Mr. Johnson was buying the truck from Mr. Ramsarup for $70,000, for which he would make 92 weekly payments with a 20% interest rate. Mr. Johnson explained he believed he would obtain the title when the $70,000 had been paid. Mr. Johnson further added that when he signed the agreement, he pointed out to Mr. Ramsarup the inclusion of 192 weeks, instead of the 92 weeks he believed was their agreement. According to Mr. Johnson, Mr. Ramsarup assured him that once the $70,000 had been paid, he would turn over the title.

Ms. McFarland, who handled the financial side of her husband's trucking business, testified that they had initially agreed upon the weekly payment of $1,056, but that shortly thereafter, Mr. Ramsarup tacked on an additional $100 to cover insurance, for a total of $1,156 per week. Ms. McFarland added that she understood $829.08 was for the principal and interest, and $326.92 was for insurance.

Ms. McFarland additionally testified that in her and her husband's efforts to procure more affordable insurance, she obtained a "bill of sale" from plaintiffs on March 28, 2016. This document, which was introduced into evidence, provided: "Michael Johnson is leasing to own this 2006 PTRB VIN# 2NPLLZOX16M891894[.] Sale price is $70,000 and he have 192 payment[s] of $829.08 weekly[.] For the 2015 year he made payment of $33,992.28 and insurance payment of $326.92 weekly." Thereafter, on or about May 23, 2016, Mr. Johnson obtained his own insurance policy on the truck, and continued making weekly payments of $829.08 to plaintiffs.

Mr. Johnson added that some time after the agreement had been signed, Mr. Ramsarup contacted him and imposed a 20% annual interest rate on their agreement. To cover this increased cost, Mr. Johnson and Ms. McFarland both explained that they made 105 payments. They introduced into evidence a log of 105 payments Mr. Johnson made to Mr. Ramsarup via Chase QuickPay, each in the amount of $829.08, from April 7, 2015 until April 10, 2017.

Mr. Ramsarup offered differing testimony. He testified that he believed the agreement was for Mr. Johnson to pay $829.08 for 192 weeks. He further stated that upon completion of these payments, he would sign the title over to Mr. Johnson.

Mr. Johnson explained he made his last payment, his 105th, on April 10, 2017. With no payment forthcoming on April 17, 2017, Mr. Ramsarup cancelled the license plate on the truck, rendering it practically inoperable. Thereafter, in a letter dated April 20, 2017, counsel for plaintiffs notified Mr. Johnson that because of his failure to make the weekly payment due on April 17, 2017, "the lease of above-referenced vehicle is terminated and the vehicle should be returned[.]" When Mr. Johnson failed to return the truck, plaintiffs filed their petition to cancel the lease on April 28, 2017.

At the conclusion of the trial on May 25, 2017, the court ruled from the bench: "The Court is going to find genuine issues of material fact regarding the terms of the contract. The contract had been altered apparently orally at some point in time and not reduced to writing. The Court is going to deny the petition for cancellation of lease and return of the lease vehicle."

In its written judgment that followed on June 20, 2017, the court, again noting that "issues of fact exist as to the agreement between the parties," denied plaintiffs' petition with prejudice. Thereafter, pursuant to a request from plaintiffs, the court issued reasons for its judgment on August 16, 2017. The court explained that it found Mr. Ramsarup agreed to sell the vehicle to Mr. Johnson for $70,000 and the parties executed a "lease to own" agreement, wherein the $1,056 weekly payments represented principal and interest in the amount of $829.08, plus insurance. The court found more credible Mr. Johnson's testimony that the parties agreed to 92 payments; and the court determined "[t]he documents prepared by Mr. Ramsarup either fraudulently or erroneously reflected 192 weekly payments." The court also noted: "[T]he Court believes it is substantially likely that Mr. Ramsarup entered into this 'lease to own' agreement with the intent to defraud Mr. Johnson." "At the very least, the inclusion of '192' week term was an error that the parties later acknowledged and agreed to modify. The Court therefore denied the plaintiffs' petition."

Plaintiffs moved for a new trial, which was denied on September 19, 2017, and thereafter devolutively appealed.

ISSUES ON APPEAL

In their brief to this Court, plaintiffs assign the following errors:

(1) The district court erred in finding material issues of fact after a bench trial on the merits.
(2) The district court erred in dismissing the matter with prejudice after finding material issues of fact after a bench trial on the merits.
(3) The district court erred in examining extrinsic evidence to interpret an authentic act.
(4) The district court erred in failing to determine that the parties did not agree to 192 payments, where both plaintiffs' and defendant's exhibits at trial all indicate 192 payments.
(5) The district court erred in finding in its written reasons for judgment that the parties agreed to 92 payments, where defendant already made 105 payments and testified that he intended to make more payments.
(6) The district court erred in citing fraud by the plaintiff in its written reasons for judgment where fraud was never alleged, nor was it ever mentioned at trial.
(7) The district court erred in citing the value of the vehicle at issue in its written reasons for judgment, where no evidence, testimony, or discussion of the value of the vehicle.
(8) The district court erred in denying plaintiffs' motion for new trial, or alternatively, motion to amend judgment, where the judgment was contrary to the law and evidence.

DISCUSSION

We opt not to address plaintiffs' assignments of error seriatim because our following analysis disposes of all the assignments, either on their merits or renders them moot.

We begin with our determination that the May 9, 2015 agreement is void for defect of form. "An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed." La. C.C. Art. 1833. "A material deviation from the manner of execution prescribed by the codal article governing authentic acts will be fatal to the act which purports on its face to be authentic." Eschete v. Eschete , 12-2059 (La. App. 1 Cir. 2/27/14), 142 So.3d 985, 987 ; Hardin v. Williams , 468 So.2d 1302, 1304 (La. App. 1 Cir. 1985), aff'd , 478 So.2d 1214 (La. 1985). Nevertheless, "[a]n act that fails to be authentic because of the lack of competence or capacity of the notary public, or because of a defect of form, may still be valid as an act under private signature." La. C.C. Art. 1834. "An act under private signature need not be written by the parties, but must be signed by them." La. C.C. Art. 1837.

The first sentence of the May 9, 2015 agreement states: "This agreement is between Hemwatie and Ramesh Ramsarup and Michael G. Johnson." The agreement is not signed by Hemwatie Ramsarup. With the omission of a party's signature, this is neither an authentic act nor an act under private signature.

Another notable omission from this agreement is any reference to Double NRJ Trucking, Inc., a plaintiff in this case. Double NRJ was not a party to the agreement. Thus, Double NRJ has no right of action to enforce this agreement. See Gauthier v. Harmony Constr., LLC , 13-269 (La. App. 5 Cir. 10/9/13), 128 So.3d 314, 320 ("Parties to a valid contract have a right of action to enforce that contract."). Accordingly, upon notice of our own motion, we sustain the peremptory exception of no right of action, and dismiss with prejudice the action of Double NRJ Trucking, Inc. against Mr. Johnson.

Although the district court did not find the purported authentic act to be void, it considered the evidence and testimony offered at trial to aid in interpreting the parties' agreement. It is these findings of fact that we now review.

It is well-settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of manifest error or unless it is clearly wrong. Evans v. Lungrin , 97-0541 (La. 2/6/98), 708 So.2d 731, 735. However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Id. When such a prejudicial error of law skews the trial court's finding of a material issue of fact, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo . Id.

Here, we find the district court committed two legal errors that interdicted the fact-finding process. First, the district court's judgment of June 20, 2017 includes the peculiar assertion that, following a full trial, the court found "issues of fact exist as to the agreement between the parties." Since "[t]he very purpose of a trial...is to decide the facts of a case," Selser v. Revol , 152 La. 447, 93 So. 675, 677 (1922), there should be no outstanding issues of fact following a full trial.

This peculiarity has also drawn our attention to the court's reasons for judgment. We recognize the well-settled rule that a trial court's oral or written reasons for judgment form no part of the judgment, and that appellate courts review judgments, not reasons for judgment. Wooley v. Lucksinger , 09-571 (La. 4/1/11), 61 So.3d 507, 572. Nevertheless, a court of appeal may review the lower court's reasons "to gain insight" into the court's judgment. Id.

Our review of the district court's reasons reflect that its findings of fact were unduly influenced by suspicions of fraud. This was the court's second legal error. Fraud must be specially pled. See Blanchard v. Rental Serv. Corp., U.S.A. , 05-460 (La. App. 5 Cir. 1/17/06), 920 So.2d 911, 916 ("Fraud is an affirmative defense under La. C.C.P. art. 1005 and must be specially pled."). And fraud must be proven by a preponderance of the evidence. La. C.C. art. 1957 ; Lomont v. Myer-Bennett , 16-436 (La. App. 5 Cir. 12/14/16), 210 So.3d 435, 445, writ denied , 17-88 (La. 2/24/17), 216 So.3d 59. Absent any pleadings of fraud, we find the district court erred in considering fraud and permitting it to influence its factual findings.

Because we find the fact-finding process was interdicted by two legal errors, we should, if possible, conduct a de novo review and render judgment on the record. See Evans , supra . We find the record before us is apt for our de novo review.

Although no valid written agreement exists between the parties, the evidence and testimony in the record demonstrates that the parties intended to enter into an agreement. And that agreement, regardless of whether the parties intended it to be a sale or a lease of the vehicle, may be made orally. See La. C.C. art. 2681 ("A lease may be made orally or in writing"); 24 Dian Tooley-Knoblett & David Gruning, Louisiana Civil Law Treatise , Sales, § 6:3, at 302-03 (2012) ("[A]n oral sale of a registered movable is valid between the parties[.]").

An oral agreement in excess of five hundred dollars must be established "by at least one witness and other corroborating circumstances." La. C.C. art. 1846. The plaintiff himself may serve as the witness to establish the existence of the oral contract. Suire v. Lafayette City-Parish Consol. Gov't , 04-1459 (La. 4/12/05), 907 So.2d 37, 58. The other corroborating circumstances, however, must come from a source other than the plaintiff. Regel L. Bisso, L.L.C. v. Stortz , 11-25 (La. App. 5 Cir. 10/25/11), 77 So.3d 1033, 1036. These corroborating circumstances need only be general in nature, such that independent proof of every detail of the agreement is not required. See Suire , supra .

In the present case, though there was conflicting testimony on some of the agreement's terms, the record reflects that the parties agreed on others. Mr. Johnson and Ms. McFarland both testified they believed Mr. Johnson was buying the truck from Mr. Ramsarup for $70,000, for which he would make 92 weekly payments of $829.08 at a 20% interest rate. The bill of sale prepared by plaintiffs similarly reflects a price of $70,000 and weekly payments of $829.08. Mr. Ramsarup also testified that the weekly payment amount was $829.08. Insofar as the evidence reflects agreement on the price and weekly payment amount, we find the price is $70,000 and the weekly payment amount is $829.08.

It is on the annual interest rate and the number of payments where the record reflects disagreement. Mr. Ramsarup maintains the agreement was 192 payments, while Mr. Johnson and Ms. McFarland claim it was 92. Mr. Johnson and Ms. McFarland testified the annual interest rate was 20%, whereas plaintiffs offered no testimony or evidence on the interest rate. Yet, under Mr. Ramsarup's figures of 192 weekly payments of $829.08 at a price of $70,000, in an amortization schedule, the annual interest rate would be more than 51%. There is no evidence in the record supporting such an exorbitant rate. On the other hand, under Mr. Johnson's figures of 92 weekly payments of $829.08 at a price of $70,000 with an annual interest rate of 20%, a balance of more than $10,000 would remain outstanding at the time of the 92nd payment. This explains Mr. Johnson's additional thirteen payments, as reflected in his payment log. Because the figures offered by Mr. Johnson are corroborated by other evidence in the record, we find the parties agreed to 92 weekly payments and an annual interest rate of 20%.

We now consider whether the agreement was a sale or lease. Mr. Ramsarup contends the agreement was a lease to own, while Mr. Johnson contends it was a sale. "A contract by which a party binds himself to pay in installments a certain sum for the use of a thing, with the privilege of becoming owner thereof upon paying a further sum, for which he has not bound himself absolutely, is simply a lease with an option to purchase, and is not a sale." Bamma Leasing Co. v. Sec'y of Dep't of Revenue & Taxation , 93-881 (La. App. 5 Cir. 9/14/94), 646 So.2d 917, 920, writ denied , 94-2505 (La. 12/9/94), 648 So.2d 380. "An alleged lease, in which at the end of the term the lessee is to become owner of the thing leased, in consideration of the rent to be paid, is in fact a sale translative of the property from its very inception." Id.

Here, there is no suggestion in the record that Mr. Johnson was required to pay a further sum after completion of the installment payments to become owner of the vehicle. In fact, Mr. Ramsarup himself testified that upon completion of the payments, he would sign the title over to Mr. Johnson. This was a sale.

Accordingly, based upon our de novo review of the record, we conclude that Mr. Ramsarup agreed to sell to Mr. Johnson the vehicle (VIN# 2NPLLZOX16M891894) for a price of $70,000, for which Mr. Johnson would make 92 weekly payments of $829.08 at an annual interest rate of 20%. Mr. Johnson has satisfied his obligations under this agreement. Thus, although the district court's findings of fact were interdicted with legal errors, upon our de novo review, we conclude that the court did not err in denying with prejudice plaintiffs' petition for cancellation of lease and return of vehicle.

DECREE

For the foregoing reasons, we affirm the district court's June 20, 2017 judgment denying with prejudice plaintiffs' petition for cancellation of lease and return of vehicle. In addition, we sustain the peremptory exception of no right of action and dismiss with prejudice the action of Double NRJ Trucking, Inc. against Michael Johnson.

AFFIRMED; PEREMPTORY EXCEPTION SUSTAINED

      24th JDC Docket No. 771-946, Div. H. On June 16, 2017, Mr. and Mrs. Ramsarup removed this case to the U.S. District Court for the Eastern District of Louisiana, No. 17-5792, where the proceedings are presently stayed.

      The agreement was signed in 2015, but the handwritten month is illegible. Both the parties and the district court operate under the assumption that it was May 9, 2015. This date seems incongruent with the terms of the payment agreement that require the payments to commence on April 6, 2015, and with Mr. Johnson's first payment on April 7, 2015. However, given the degree of oral communication between the parties suggested by the record, it seems probable this written agreement was signed after an oral agreement had been confected and payments had started.

      The peremptory exception of no right of action may be raised by the defendant or noticed by the court on its own motion, in either the trial or appellate court. La. C.C.P. art. 927(B) ; Howard v. Adm'rs of the Tulane Educ. Fund , 07-2224 (La. 7/1/08), 986 So.2d 47, 59.

      Because we find the written agreement is void, we pretermit discussion of the district court's consideration of extrinsic evidence in interpreting the written agreement. See La. C.C. art. 1848 ; La. C.C. art. 2046.


text:
    Charles W. GETTYS, Jr. and Tammy Abide v. William G. GETTYS, Floellen Sanchez-Rickard, Victoria Foght Virga and Michael Virga
    NO. 2017-CA-0859
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 2018
    Mark Michael Dennis, ATTORNEY AT LAW, 70325 Highway 1077, Suite 300, Covington, LA 70433, Paul A. Tabary, III, TABARY AND BORNE, LLC, Three Courthouse Square, Chalmette, LA 70043, COUNSEL FOR PLAINTIFFS/APPELLEES
    Joyce D. Young, Michael C. Ginart, Jr., Nicholas N.S. Cusimano, LAW OFFICE MICHAEL C. GINART, JR. & ASSOCIATES, 2114 Paris Road, Chalmette, LA 70043, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Regina Bartholomew-Woods)
    Judge Regina Bartholomew-Woods This civil appeal involves the co-ownership, partition by licitation, and reimbursement for renovation of 216 Coney Drive, an immovable property located in Arabi, Louisiana, in St. Bernard Parish. For the reasons that follow, we affirm the trial court's February 9, 2017 judgment.
    FACTUAL AND PROCEDURAL HISTORY
    On December 15, 2004, the trial court signed a judgment of possession in the Succession of Florence Schmit Gettys Sanchez, which awarded Plaintiffs-Appellees, Charles W. Gettys, Jr. ("Charles") and Tammy Abide ("Tammy") (collectively "Plaintiffs-Appellees") and Defendants-Appellants, William G. Gettys ("William"), Floellen Sanchez-Rickard ("Floellen"), Victoria Foght Virga, and Michael Virga (collectively "Defendants-Appellants"), each an undivided one-fifth (1/5) interest in 216 Coney Drive ("property"), a residence in St. Bernard Parish ("parish"); all parties are owners in indivision or co-owners of the property.
    On June 18, 2014, Plaintiffs-Appellees filed a petition for partition of jointly owned property by licitation and rule to show cause against Defendants-Appellants. On November 10, 2014, William filed an answer in reconventional demand and alleged that after Hurricane Katrina, Charles, Tammy, and Floellen expressed that they no longer "wanted an interest in the property," did not want to "put any money into the property," and did not want to be responsible for the costs of repair and any liens or fines from the parish. William asserted that after Hurricane Katrina, he completely renovated the property and began residing there. William further asserted that prior to Hurricane Katrina, he and Charles agreed to renovate, then sell the property, and ultimately share the proceeds. William stated that the cost of renovations totaled $46,000.00. According to William, he and Charles agreed to share equally in the costs of the renovation; however, Charles had not made any payments toward the cost of the pre-Hurricane Katrina renovation. Therefore, through the partition of the property proceedings, William sought reimbursement from Charles in the amount of $23,000.00, one-half of the cost of the pre-Hurricane Katrina renovation. Ultimately, William sought reimbursement for the renovations that he made to the property both before and after Hurricane Katrina.
    The trial in this matter began on October 17, 2016, and the trial court rendered a final judgment on February 9, 2017. The trial court ordered that the property be partitioned by licitation and ruled that the property be seized and sold at auction with a minimum bid of $50,000.00 and the $48,476.18 of the net proceeds to be paid to William as reimbursement for the renovations to the property after Hurricane Katrina. The trial court's final judgment permitted co-owners to avoid the sale of the property at auction by agreeing to sell the property privately before April 1, 2017. It is from this judgment that William appeals.
    DISCUSSION
    On appeal, William raises the following assignments of error:
    1. Whether the trial court erred in failing to reimburse William for renovations made to the property before Hurricane Katrina.
    2. Whether the trial court erred in failing to reimburse William for workmanship of renovations made to the property after Hurricane Katrina.
   3. Whether the trial court's award of one-fifth (1/5) of the proceeds of the sale to each owner in indivision subject to a credit of $48,476.18 to William is contrary to law.

Standard of Review

This Court, in Slimp v. Sartisky , outlined the appropriate standard of review as follows:

A trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between co-owners. However, the allocation or assigning of assets and liabilities in the partition of property is reviewed under the abuse of discretion standard. Legaux-Barrow v. Barrow, [20] 08-530, p. 5 (La. App. 5 Cir. 1/27/09), 8 So.3d 87, 90, writ not considered, [20]09-0447 (La. 4/13/09), 5 So.3d 152. It is further settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and "where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Slimp v. Sartisky , 2011-1677, p. 21-22 (La. App. 4 Cir. 9/17/12), 100 So.3d 901, 916.

According to La. C.C. art. 797, ownership of the same thing by two (2) or more persons is "ownership in indivision," and all shares are presumed equal. Louisiana Civil Code article 807 provides, in pertinent part, that "[a]ny co-owner has a right to demand partition of a thing held in indivision." Here, the parties, as owners in indivision or co-owners of the property had the right to seek partition. Pursuant to La. C.C. art. 811 , because the property, a residential house, does not lend itself to partition in kind, it was subject to partition by licitation with proceeds distributed in proportion to shares.

Pre-Hurricane Katrina Renovation

Before Hurricane Katrina, the co-owners agreed to sell the property. But first, the co-owners agreed to renovate the property in an attempt to yield a higher profit. The co-owners also agreed that, prior to the renovation, the property was worth $67,000.00; Charles and William would be financially responsible for the renovations; and, upon the sale of the property, each co-owner would receive one-fifth (1/5) share of $67,000.00 and Charles and William would share, equally, any proceeds that exceeded $67,000.00. About this time, Charles was terminated from his job and was unable to financially contribute his one-half of the cost of renovations. William asserts that he and Charles agreed that William would pay all the costs of the renovations and that Charles would reimburse him from Charles' share of the proceeds after the sale of the property. William asserted that he paid $46,000.00 for these renovations. After the renovations were completed, but before the property was sold, Hurricane Katrina caused significant damage to the property, which was not insured. At trial and on appeal, William seeks reimbursement in the amount of $23,000.00 representi ng one-half of the costs of the pre-Hurricane Katrina renovation.

Post-Hurricane Katrina Renovation

William asserts that after Hurricane Katrina, he was the only co-owner interested in renovating the property. In his appellate brief, William asserts that if the property had been sold without renovating, the property would have sold for $5,000.00; each co-owner would have received a one-fifth share of that amount. According to William, Charles, as the executor, received notice from the parish that the property would be demolished if it was not repaired. In response, William began renovating the property with the knowledge and consent of the other co-owners; the other co-owners did not contribute financially to the post-Hurricane Katrina renovation. In July 2007, after the completion of the renovation, William and his wife began residing in the property.

Analysis

Louisiana Code of Civil Procedure article 804 provides that "[s]ubstantial alterations or substantial improvements to the thing held in indivision may be undertaken only with the consent of all the co-owners." Upon review of the appellate record, it appears that all owners in indivision consented to William and Charles renovating the property, both before and after Hurricane Katrina. As such, La. C.C. art. 496 provides that "[w]hen constructions, plantings, or works are made by a possessor in good faith, the owner of the immovable may not demand their demolition and removal. He is bound to keep them and at his option to pay to the possessor either the cost of the materials and of the workmanship, or their current value, or the enhanced value of the immovable." In Franklin v. Franklin , the court makes it clear that "[t]he choice of the method of compensation is at the option of the other co-owner." Franklin , 415 So.2d 426, 428 (La. App. 1st Cir. 1982). Here, in its reasons for judgment, the trial court reasoned that "[a]lthough the other parties have not explicitly selected a particular valuation, it greatly behooves them to select the lowest one, so the [c]ourt will proceed as if they had made that choice." It was reasonable for the trial court to determine that the parties would select the lowest reimbursement option.

At trial, William was unable to prove the cost of his pre-Hurricane Katrina renovation because his receipts were lost in the flood. However, both William and his expert witness, Roy Gross, III ("Gross"), estimated the cost of the pre-Hurricane Katrina renovation at $46,000.00. William admitted at trial and in his appellate brief that he only presented receipts for some of the costs of the post-Hurricane Katrina renovations. However, Gross testified that the value of the material and workmanship totaled $91,150.00.

After weighing the evidence and the witness testimony presented at trial, the trial court found the evidence insufficient to prove that William was entitled to reimbursement from Charles for one-half of the costs of the pre-Hurricane Katrina renovations and that "the loss should remain where it fell." The trial court held that William was entitled to reimbursement in the amount of $48,476.18 for the "cost of the materials and labor he paid to renovate the property." After weighing the evidence and the witness testimony presented at trial, the trial court found the evidence insufficient to prove that William was entitled to additional reimbursement for the post-Hurricane Katrina renovation to the property. The Louisiana Supreme Court has stated:

[w]hen there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.

Canter v. Koehring Co. , 283 So.2d 716, 724 (La.1973)

Accordingly, this Court will not disturb the trial court's factual findings because we do not find that the trial court abused its discretion.

DECREE

For the foregoing reasons, we find that the trial court did not abuse its discretion; therefore, we affirm the trial court's February 9, 2017 judgment.

AFFIRMED

      As provided in La. C.C. art. 810, partition in kind is the "division into as many lots of nearly equal value as there are shares and the aggregate value of all lots is not significantly lower than the value of the property in the state of indivision."

      At trial, the parties stipulated that immediately after Hurricane Katrina, the property was valued at $22,500.00, and the property is presently valued at $110,000.00.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Reginald Anthony SAULSBERRY, Appellant
    No. 52,031-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    PEGGY J. SULLIVAN Counsel for Appellant
    JOHN F.K. BELTON, District Attorney, LEWIS ALLEN JONES TRACY W. HOUCK, Assistant District Attorneys Counsel for Appellee
    Before MOORE, GARRETT, and STONE, JJ.
   MOORE, J.

The defendant, Reginald Anthony Saulsberry, agreed to plead guilty to a charge of simple burglary and as a second felony offender in exchange for a 13-year sentence with credit for time served. Saulsberry also reserved his right to appeal the trial court's denial of his motion to dismiss his counsel and motion for a continuance in order to obtain new counsel. This appeal arises from these rulings. After review, we find no error in the trial court's rulings, and, therefore, we affirm Saulsberry's conviction and sentence.

FACTS

Saulsberry was charged by bill of information with the simple burglary of Fuqua Paper Supply Company ("Fuqua") in Ruston, Louisiana. Fuqua is a distributor of paper, plastics and food service disposables as well as janitorial supplies and cleaning equipment. Saulsberry was a former warehouse employee of Fuqua discharged several weeks prior to the burglary. Police found his fingerprints on a box that had been removed from a pallet of 10 vacuum cleaners and then left on the floor by the burglar; at least three vacuum cleaners in boxes were missing from the pallet. Since the vacuum cleaners were received at the warehouse after Saulsberry was fired, his fingerprints should not have been on the box. This evidence led to Saulsberry's arrest for burglary.

On May 29, 2015, Saulsberry was charged by bill of information, and attorney James Wilkerson from the Indigent Defender Board was appointed to represent him.

On Monday, September 28, 2016, the morning that trial was to begin, Saulsberry made a request or motion to the trial judge to remove and replace his court-appointed counsel. When the court asked the defendant why he did not bring the matter up the previous Friday when he was present in the courtroom, Saulsberry said that Wilkerson stopped him short of the podium and told him that "I was third for trial, I wouldn't go to trial until next year." However, a few minutes later, a bailiff informed him that he needed to "dress out for Monday." Saulsberry told the court that "all they been doing is lying to me ever since I had it."

The trial court swore in the attorney, Wilkerson, for questioning. Wilkerson testified that, during his representation in this matter, he had met with Saulsberry between 10 and 20 times; however, those visits were mostly unproductive because Saulsberry usually became angry and left the meetings. He further said that Saulsberry accused him of being dishonest and "in with John Belton [the district attorney] and Lewis Jones [the ADA prosecuting his case] to drive up their conviction rates." Wilkerson could not recall the details or specifics of Saulsberry's several accusations of wrongdoing. He said that Saulsberry did file a complaint with disciplinary counsel of the bar association. That complaint, he said, was dismissed.

Additionally, Wilkerson told the court that Saulsberry had previously complained to the court regarding his refusal to adopt two pro se motions-motion to suppress and motion for a bill of particulars. The trial judge did not recall any specific complaints by Saulsberry, but he remembered that he dismissed the motions. Wilkerson also said that Saulsberry was concerned that he (Wilkerson) did not directly ask the victim, Fuqua, for some paperwork; instead, he made this request to the ADA, Lewis Jones. He said he told Saulsberry that it was better that way, explaining to him that if the state withheld exculpatory evidence it would result in the case having to be retried. He said that the defendant then "blew up" over the matter.

Finally, Wilkerson recounted an incident to the court that occurred on the day before trial regarding whether he would obtain a subpoena for a witness named Channing Rushing. According to Wilkerson, Rushing had evaded being located and had avoided talking to him ever since the burglary occurred. However, he was finally able to speak with Rushing by telephone the day before trial. After a lengthy telephone conversation with Rushing, he concluded that Rushing's testimony would not benefit the defendant. He discussed the matter with Saulsberry, and it was his understanding that Saulsberry agreed it would not help to subpoena Rushing, which account Saulsberry now denied. Wilkerson said that Saulsberry may have said that there was no point in his obtaining a subpoena because he (Wilkerson) would not be representing him.

The court questioned Saulsberry, who said that Wilkerson met with him "ten times maybe." He characterized the meetings as "unproductive" because Wilkerson "was constantly lying to me." When asked for specifics, Saulsberry noted the incident on the previous Friday when Wilkerson told him that his trial was third on the court's docket. The court confirmed that the case was third on the docket, but Saulsberry charged that Wilkerson lied when he said he would not go to trial until next year.

Saulsberry also stated that he became angry and cut the meetings short because Wilkerson did not do anything for him: he failed to request documents directly from Fuqua, and instead requested them from the DA's office; he asked Saulsberry's girlfriend to stop attempting to obtain evidence from Fuqua Paper; and he asked the wrong questions to Channing Rushing, a witness that Saulsberry wanted to call in his defense.

Wilkerson stated that he had completed discovery and was prepared to proceed to trial. Saulsberry requested a continuance to allow him the opportunity to retain new counsel, stating that he had never trusted Wilkerson as his trial counsel. The state argued that Saulsberry's request for a continuance to find new counsel was untimely, as it was raised only on the morning of trial.

The trial court denied the motion to continue the trial. The court noted that attorney Wilkerson had been diligent in his duties, had extensive criminal trial experience, having tried more than 10 criminal jury trials, and that Saulsberry waited until the last moment to voice his concerns, despite ample opportunity to do so earlier. The trial court also noted that Saulberry's complaint against Wilkerson, filed with the Office of Disciplinary Counsel, had been dismissed.

Saulsberry then agreed to plead guilty to simple burglary and as a second-felony habitual offender, with an agreed-upon sentence of 13 years at hard labor. The state also agreed to dismiss two additional separate charges of simple burglary. Under the terms of the plea agreement, Saulsberry reserved his right to appeal the denials of his motion to terminate counsel and motion to continue. After Saulsberry pled guilty to the charge of simple burglary, the state filed a habitual offender bill of information charging Saulsberry as a second-felony habitual offender. Saulsberry pled guilty as charged and was sentenced to 13 years' imprisonment at hard labor. This appeal followed.

DISCUSSION

Both assignments of error are essentially intertwined and will be treated together. By his first assignment of error, Saulsberry alleges that the trial court erred in failing to either appoint different counsel or allow him additional time to hire counsel, when it was clear that attorney Wilkerson could not be effective given the communication issues and distrust exhibited by him. In his second assignment, Saulsberry alleges that the trial court erred in failing to grant the continuance he requested in order to facilitate the opportunity to retain counsel of his choice.

Saulsberry maintains that his lack of confidence in his court-appointed trial counsel deprived him of his constitutional right to effective counsel. He argues that he did not bring his concerns to the trial court's attention prior to the morning of September 28, 2016, because he did not believe that he would be proceeding to trial on that date, as he relied on statements by Wilkerson regarding his resignation from the Public Defender's Office to conclude that he would be assigned a different attorney prior to trial. Saulsberry argues that Wilkerson lied to him about the trial setting, failed to request documents from the victim, and failed to subpoena a witness, in support of his claim that the trial court should have continued the trial so he could retain different counsel with whom he could effectively communicate.

The state argues that Saulsberry has not shown that his trial counsel was ineffective in his representation or that the trial court should have granted a continuance. Saulsberry had ample opportunity, nearly 16 months, to retain his own attorney prior to trial, but he failed to do so or request that new counsel be appointed until the morning of trial. The state argues that this request was untimely and that Saulsberry has made no showing of specific prejudice as a result of the trial court's denial of his request.

Upon a written motion at any time and after a contradictory hearing, the trial court may grant a continuance, but only upon a showing that such a motion is in the interest of justice. La. C. Cr. P. art. 707 ; State v. Thomas , 51,346 (La. App. 2 Cir. 6/21/17), 223 So.3d 759 ; State v. Harris , 44,402 (La. App. 2 Cir. 6/24/09), 20 So.3d 1121, writ denied , 09-2303 (La. 4/23/10), 34 So.3d 271. Additionally, the court has discretion to grant a timely filed motion for a continuance "in any case if there is good ground therefor." La. C. Cr. P. art. 712. Because the decision to grant or deny a motion for continuance rests within the sound discretion of the trial court, a reviewing court will not disturb the trial court's determination absent a clear abuse of discretion. State v. Thomas, supra ; State v. Free , 48,260 (La. App. 2 Cir. 11/20/13), 127 So.3d 956, writ denied , 13-2978 (La. 5/30/14), 140 So.3d 1174. Generally, a reviewing court will not reverse a conviction even on a showing of an improper denial of a motion for a continuance, absent a showing of specific prejudice. State v. Free, supra .

The Sixth Amendment to the U.S. Constitution, as well as La. Const. art. I, § 13, guarantee the accused in a criminal proceeding the right to assistance of counsel for his defense. Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ; State v. Carpenter , 390 So.2d 1296 (La. 1980) ; State v. Shumaker , 40,275 (La. App. 2 Cir. 10/28/05), 914 So.2d 1156.

Generally speaking, a person accused in a criminal trial has the right to counsel of his choice. La. Const. art. I, § 13 ; State v. Leggett , 363 So.2d 434 (La. 1978) ; State v. Anthony , 347 So.2d 483 (La. 1977). The defendant in a criminal trial may not, however, by a last-minute change of counsel, force a postponement. State v. Moore , 40,311 (La. App. 2 Cir. 1/13/06), 920 So.2d 334, writ denied , 06-2267 (La. 6/1/07), 957 So.2d 167 ; State v. Leggett, supra ; State v. Anthony, supra . The Louisiana Supreme Court has frequently upheld the trial court's denial of motions for continuances or withdrawal of counsel made on the day of trial when the defendant is dissatisfied with his present attorney, but had ample opportunity to retain private counsel. State v. Moore, supra ; State v. Leggett, supra ; State v. Anthony, supra .

We conclude that Saulsberry failed to exercise his right to retain counsel of his choice at a reasonable time prior to trial. While a defendant is entitled to the counsel of his choice, he may not force a continuance of trial by a last-minute change of counsel. In this instance, the matter was set for jury trial on September 26, 2016, and was called for trial two days later. His appointed counsel clearly stated that he was present and prepared to proceed with trial on September 28, 2016. Only then did Saulsberry request that the trial court remove court-appointed counsel. At no time prior to that did Saulsberry request a new attorney or voice his concerns to the trial court, despite having almost 16 months to do so.

Saulsberry asserts that he was unable to effectively communicate with Wilkerson "based on his trepidations about the nature of the relationship." However, the record reflects that the communication issues stemmed from Saulsberry's unwillingness to take the advice of counsel. Wilkerson visited with Saulsberry between 10 and 20 times to prepare a case. Saulsberry was displeased that he chose to obtain evidence from the state through discovery, rather than directly from Fuqua, and that he chose not to subpoena a witness whose testimony would have been detrimental to Saulsberry's defense. These actions were entirely appropriate. Furthermore, Saulsberry's assertion that Wilkerson continually lied to him is unsupported by any evidence.

The Louisiana Supreme Court has frequently upheld the trial court's denial of motions for continuances or withdrawal of counsel made on the day of trial when the defendant is dissatisfied with his present attorney, but had ample opportunity to retain private counsel. The trial court did not abuse its discretion in denying Saulsberry's request for a continuance so that he could retain new counsel.

Accordingly, these assignments of error lack merit.

CONCLUSION

Having found no abuse of discretion by the trial court in denying the defendant's motions to remove counsel and continue trial until the defendant could obtain new counsel, we affirm the judgment of the trial court and the defendant's conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.


author: STEPHENS, J.

text:
    STATE of Louisiana, Appellee v. Dumauriea Leon MCGEE, Appellant
    No. 51,977-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 23, 2018
    LOUISIANA APPELLATE PROJECT By: Edward Kelly Bauman, Lake Charles, Counsel for Appellant
    JEFFREY M. LANDRY, Attorney General, BROOKE A. HARRIS, Assistant Attorney General, Counsel for Appellee
    Before BROWN, WILLIAMS and STEPHENS, JJ.
   STEPHENS, J.

This criminal appeal arises from the Third Judicial District Court, Parish of Lincoln, State of Louisiana. The defendant, Dumauriea Leon McGee, was charged by grand jury indictment with second degree murder, in violation of La. R.S. 14:30.1. After a jury trial, McGee was found guilty as charged and sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence. No motion to reconsider sentence was filed. On appeal, among other assignments of error, McGee argues he received ineffective assistance of counsel at trial. For the following reasons, we remand this matter to the trial court with instructions for an evidentiary hearing on the issue of ineffective assistance of counsel.

FACTS

DeAnthony Mardis was shot and killed on May 30, 2013, in Ruston, Louisiana, while trying to purchase marijuana from McGee, who immediately fled the scene. McGee was arrested in Tallahassee, Florida by officers with the Tallahassee Police Department and was interviewed by Detective Craig Isom on June 3, 2013. United States Marshals transported McGee to Louisiana, where he was taken into custody by the Ruston Police Department on June 13, 2013. McGee was charged by grand jury indictment with the second degree murder of Mardis, and at arraignment McGee pled not guilty. McGee's trial commenced on January 9, 2017, at which he was represented by a court-appointed attorney. The jury was presented with the following testimony and evidence.

Officer Lloyd Anthony Pollard, who was employed by the Ruston Police Department on May 30, 2013, testified that he was dispatched to a house at 1307 Benton Street in Ruston shortly after 9:00 p.m. in response to a shooting. Upon arriving, Ofc. Pollard observed Mardis lying partially underneath a blue truck parked in the front yard of the residence. Emergency medical services ("EMS") and other officers were already at the scene and informed Ofc. Pollard that Mardis was still alive but had a weak pulse. In an effort to preserve the scene, Ofc. Pollard took photographs prior to EMS taking Mardis to the hospital. He also testified that he believed Mardis crawled under the vehicle in an attempt to hide from his shooter. Mardis was transported to a hospital where he later died.

Officer Gerald Jenkins of the Ruston Police Department was also dispatched to 1307 Benton Street and sketched the scene, documenting where the following evidence was recovered: a cigarette lighter, a cigarette butt, a digital scale, $11.00 in cash, three .38 caliber cartridges, a shoe impression, a machete, two Corona beer cartons (one of which contained marijuana), and two spent .38 caliber shell casings.

Officer Jenkins specifically noted that the digital scale was discovered in the ditch by Benton Street. The three live .38 caliber bullets were located near the truck, two on the opposite side of the truck from where Mardis's body was found and one near the rear of the truck. The two spent shell casings were located in the paved parking lot of the Royal Crest Apartment complex where McGee lived, which is next to the house at 1307 Benton Street. While examining the scene, Ofc. Jenkins noted that although there was a large bloodstain near the truck, it was unclear where Mardis began bleeding. Further, there were several shoe prints discovered on the truck's driver's side but none indicated there was a struggle. A machete was discovered in the bushes, but Ofc. Jenkins stated his opinion that it did not appear connected to the crime. The machete was not fingerprinted, nor did defense counsel request it be fingerprinted. A map of the crime scene entered into evidence at the trial indicates the machete was located separately from the marijuana found at the scene.

Patina Goldsmith testified that she was visiting her sister at 1307 Benton Street on the night of the shooting. Goldsmith heard gunshots around 9:00 p.m., went outside with her sister's boyfriend, Roderick Doss, and discovered Mardis lying underneath her sister's truck. Doss also testified and corroborated Goldsmith's version of events, adding that after the shooting, Doss looked out the window before going outside and observed McGee, whom Doss knew as "Cali," running toward the apartment complex. Doss did not see anything in McGee's hands. Doss identified McGee in open court as the man he saw running on the night of the shooting.

Robert Womack testified he discovered bullets and a rusty black gun several months after the shooting while visiting a friend who lives at 1305 Benton Street. The loaded gun was in some underbrush. Womack contacted the police, and Officer Harriet Sykes collected the gun, which was loaded. She brought the gun to the Ruston Police Department. Both Womack and Ofc. Sykes identified the gun in open court.

Mary Catherine Zoll, a chemist with the North Louisiana Crime Lab ("NLCL"), was accepted as an expert in forensic chemistry and testified that she performed a chemical analysis on the suspected marijuana (State's Exhibit Nos. 9 and 10) collected from the scene. Zoll confirmed at trial that the substance recovered was marijuana. Other expert testimony established that it is common for drug dealers to hide their merchandise, in packages similar to the Corona six-pack carton containing marijuana recovered from the crime scene.

Dr. Frank Peretti, an accepted expert in medicine with a specialty in forensic pathology, performed the autopsy on Mardis and testified that he was killed by two gunshot wounds, one in his upper left chest and the other in his mid-back. The first wound was a "through and through" and no bullet was recovered; however, Dr. Peretti was able to retrieve a bullet from the second wound. Both wounds appeared to be "distant gunshot wounds," which are injuries inflicted when the gun is two or more feet away from the target when fired. Mardis also had two abrasions on his upper left back and sand on his face and back. Mardis had marijuana, hydrocodone, and THC (tetrahydrocannabinol) in his system at the time of his death.

Troy Kendall Stracener, another analyst with the NLCL and accepted expert in forensic firearm identification, testified that the .38 caliber revolver found by Womack had its serial number filed off, and Stracener used chemicals to recover the number. Due to the rust inside the barrel of the revolver, which altered the unique grooves within the revolver's barrel, Stracener was not able to determine whether the bullet recovered from Mardis's body was fired from that particular revolver; however, Stracener noted that the bullet possessed the same class of characteristics as the referenced bullets fired during analysis. The two spent shell casings recovered from the scene were fired from the revolver. Finally, the bullets and shell casings recovered from the scene, including the one removed from Mardis's body, were all the same caliber, brand, size, and shape.

Nicholas Moore was a witness at the scene, and he testified to meeting with Mardis, Lamarro Moore, and Patrick Pringle at Lamarro's house on the night of the shooting at approximately 9:00 p.m. Pringle drove the four men to Benton Street and parked near the bushes located between the Royal Crest Apartments and the house at 1307 Benton Street. Mardis exited the vehicle. Nicholas saw Mardis meet with a person wearing a hood, whom Nicholas did not recognize. Mardis eventually returned to the vehicle, and Pringle drove them back to Lamarro's house. Nicholas did not exit the vehicle and could not recall whether anyone else did; however, Pringle drove the men back to Benton Street, where Mardis got out of the vehicle and met with the person a second time. Nicholas, Lamarro, and Pringle remained in the vehicle, while Mardis spoke with the person. Nicholas noted that Mardis and the person were out of his line of vision, but he suddenly heard what sounded like a fight. Mardis and the person appeared in the yard of 1307 Benton Street, where Nicholas saw the two men "swinging" at each other. Nicholas heard a gunshot. Mardis fell, and Nicholas heard a second gunshot-the shots were "seconds" apart-a very short time, Nicholas described. Nicholas fled the scene on foot and hid behind nearby houses.

Ultimately, Nicholas gave a statement to Ofc. Jenkins on June 3, 2013. Following the shooting but prior to giving his statement, Nicholas saw a television news report on the shooting, which identified McGee as a suspect. While giving his statement, Nicholas told Ofc. Jenkins that the man he saw in the news report, McGee, looked like the man who shot Mardis. Nicholas also stated that Mardis was unarmed when he exited Pringle's vehicle and did not have anything in his hands when he was shot.

Lamarro Moore was also in the vehicle when the crime occurred and testified that on the night of the shooting Pringle picked him up prior to 9:00 p.m. The pair drove to Mardis's house and collected Mardis. While driving back to Lamarro's house, Mardis stated that he wanted to buy some marijuana. Lamarro suggested a dealer, later identified as McGee, he had met through a friend and seen a few days before at an EZ Mart, where Lamarro got his cell phone number. Lamarro texted McGee, who instructed Lamarro, Pringle, and Mardis to meet him at Benton Street, behind the Royal Crest Apartments. Prior to meeting McGee, Nicholas joined them and the four drove to Benton Street. Arriving at the meeting place, Lamarro heard McGee and Mardis state that they did not have a scale to weigh the marijuana. Mardis got back into Pringle's vehicle, and he, Pringle, Lamarro, and Nicholas returned to Lamarro's house to get a scale.

Lamarro recounted that upon returning to Benton Street, Mardis got out of Pringle's vehicle while the others remained in the vehicle. Lamarro was seated in the front passenger's seat, the side closest to where Mardis and McGee were conducting their deal, when the shooting occurred-he had an unobstructed view. However, Lamarro also testified that he fell asleep for a few seconds, "because he was full of pills." He woke to the sound of an argument, and Lamarro heard Mardis ask, "[w]here the marijuana at?" Lamarro was about to get out of the vehicle to break up the fight when he claimed McGee shot Mardis. Like Nicholas, Lamarro stated that Mardis was unarmed when he left the vehicle and when he was shot. After Mardis was shot, Lamarro described how the victim attempted to crawl underneath the truck parked in the front yard of 1307 Benton Street, but McGee shot him a second time. Pringle called the police, and Lamarro exited the vehicle and fled the scene on foot. While fleeing, Lamarro saw McGee run toward the EZ Mart. Lamarro called the police and informed Ofc. Jennifer Windsor with the Ruston Police Department where McGee had fled. Lamarro later identified McGee as the shooter in the police station with a photographic lineup and again at trial.

Captain Eric Hanna led the investigation into Mardis's death and testified that he developed McGee as a suspect after Lamarro identified McGee as the shooter in a photographic lineup. Captain Hanna obtained an arrest warrant for McGee, but McGee fled Lincoln Parish before the warrant could be executed. He noted McGee was eventually apprehended in Florida on June 3, 2013, by the Tallahassee Police Department and transported back to Louisiana by United States Marshals. According to Cpt. Hanna, McGee was booked at the Lincoln Parish Detention Center on June 13, 2013, where he was fingerprinted. Captain Hanna executed a search warrant on McGee's apartment at the Royal Crest Apartments on June 11, 2013, which produced a digital scale used for weighing drugs and an empty Corona carton in the refrigerator. Captain Hanna also stated that he discovered a usable fingerprint on one of the beer bottles recovered from the crime scene, which was later identified by Lieutenant Owen McDonnell, an expert in latent fingerprint identification, as being McGee's fingerprint.

Following Lt. McDonnell's testimony, the state rested. The defense rested without calling any witnesses or admitting any evidence. After deliberation, the jury returned a verdict of guilty as charged for second degree murder, a violation of La. R.S. 14:30.1. McGee filed a motion for a new trial and for a post-verdict judgment of acquittal, both of which were denied. A presentence investigation report was ordered, and on March 9, 2017, McGee was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. No motion to reconsider sentence was filed, and this appeal ensued.

DISCUSSION

On appeal, McGee brings three assignments of error. In his third assignment, McGee argues his trial counsel was ineffective and sets forth three specific instances in which trial counsel was deficient and those deficiencies prejudiced him. He submits his trial counsel failed: (1) to admit or proffer statements he made to Captain Eric Hanna and Detective Craig Isom; (2) to subpoena Detective Isom for trial; and, (3) to request that the machete (i.e., exculpatory evidence) found on the scene be fingerprinted.

Both the Louisiana and federal constitutions guarantee a criminal defendant's right to the assistance of counsel. Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ; State v. Brooks , 452 So.2d 149 (La.1984). Typically, a defendant must show that his attorney's performance was deficient and that he was prejudiced by the deficiency. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In some cases, however, a defendant is entitled to relief absent a showing of deficiency or prejudice. Those cases are limited to instances where a defendant is denied counsel at a critical stage of the proceedings, when counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, and when the circumstances surrounding a trial prevent the defendant's attorney from rendering effective assistance of counsel. Bell v. Cone , 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) ; United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

We note that generally a claim of ineffective assistance of counsel is properly raised in an application for post-conviction relief ("PCR") in the trial court. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. Nonetheless, when the record is sufficient, the claim may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff , 416 So.2d 528 (La. 1982) ; State v. Brown , 48,257 (La. App. 2d Cir. 9/25/13), 135 So.3d 718, 722, writ denied , 2013-2550 (La. 4/4/14), 135 So.3d 640. See State v. Revish , 2015-0470 (La. App. 1st Cir. 11/9/15), 185 So.3d 8, writ denied , 2015-2247 (La. 5/20/16), 191 So.3d 1066, where the appeal court addressed the merits of an ineffective assistance of counsel claim and concluded that the defendant's trial counsel's error in failing to object to an erroneous jury charge resulted in actual prejudice to the defendant and may have contributed to his convictions; thus it vacated the convictions and sentences and remanded for a new trial.

However, in instances where the record has been deemed insufficient to resolve the claim, the matter may be remanded to the district court for a full evidentiary hearing on the issue and a determination as to whether a defendant was entitled to a new trial. See State v. Addison , 1994-2745 (La. 6/23/95), 657 So.2d 974, 975 ("a showing by defendant at a subsequent hearing that his new attorney was totally unprepared may entitle him to a new trial"); State v. Mansfield , 50,426 (La. App. 2d Cir. 2/24/16), 190 So.3d 322, 333 ("[a]t the hearing, evidence pertaining to trial counsel's judgment, tactical decisions, and trial strategy will, of course, need to be considered"); State v. Taylor , 44,367 (La. App. 2d Cir. 9/23/09), 20 So.3d 1157, 1162 ("the record alone is inadequate to fairly resolve this issue"); State v. Lemon , 29,587 (La. App. 2d Cir. 8/20/97), 698 So.2d 1057, 1064 ("we remand the matter to the trial court for an evidentiary hearing on the issue of ineffectiveness of counsel"); State v. King , 2017-0126 (La. App. 4th Cir. 10/27/17), 231 So.3d 110, 123 ("resolution of this [ineffective assistance of counsel] dispute requires a more comprehensive record to evaluate the reasons and propriety of defense counsel's failure to lodge an objection to inadmissible hearsay statements").

At trial, although defense counsel asserted a claim of self-defense by McGee in his opening and closing statements, no mention was made of the State's possession of possibly exculpatory evidence gathered from the scene and in custody (i.e., a machete). Additionally, defense counsel failed to admit or proffer statements made to police which contained both exculpatory and/or inculpatory statements of McGee (i.e., regarding a machete). In light of the content of those statements, together with relevant evidence possessed by the State which had a direct connection to his claim of self-defense, we cannot possibly see, at least on this appeal record, how trial counsel's tactical decisions and/or trial strategy were such to further McGee's case. Resolution of this issue requires a more comprehensive record to evaluate the reasons and the propriety of defense counsel's failure to strenuously advance McGee's self-defense claims.

Here, we do not find the record is sufficient to resolve McGee's claim of ineffective counsel. As to his claim of ineffective assistance of counsel, we remand with instructions for the trial court to conduct a full evidentiary hearing, with benefit of counsel for McGee, and to render a ruling on the validity of the defendant's claim. In the event the trial court does find merit to this error, it should set aside the conviction and grant McGee a new trial. Also, because the issues in his remaining assignments of error are directly affected by the specific claims regarding the ineffective assistance of counsel, we pretermit those remaining assignments of error. Should the trial court not find ineffective assistance of counsel, McGee's right to seek a new appeal of that ruling is reserved as are the pretermitted assignments of error from this appeal.

REMANDED WITH INSTRUCTIONS.