text:
    STATE of Louisiana v. Earl HORTON.
    No. 09-KA-250.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea Long, Shannon D. Swaim, Jarred Brandon Kinnett, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Earl Horton, in Proper Person, Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| .¡Defendant, Earl Horton, was charged by bill of information with one count of aggravated flight from an officer in violation of LSA-R.S. 14:108.1 (count one), three counts of felon in possession of a firearm in violation of LSA-R.S. 14:95.1 (counts two, four, and five), one count of possession of stolen property, a Cadillac valued over $500, in violation of LSA-R.S. 14:69 (count three), and two counts of possession of a stolen firearm in violation of LSA-R.S. 14:69.1 (counts six and seven). Defendant proceeded to trial on August 5, 2008. After a two-day trial, a jury found him guilty as charged on all seven counts. The trial court sentenced defendant to two years at hard labor on count one, aggravated flight from an officer; ten years at hard labor on count two, felon in possession of a firearm; ten years at hard labor on count three, possession of stolen property; ten years on each count for counts four and five, felon in possession of a firearm; and five years on |4each count for counts six and seven, illegal possession of a stolen firearm. The trial court ordered the three counts of felon in possession of a firearm to be served without the benefit of parole, probation or suspension of sentence. It also ordered all the sentences to run concurrently with each other.

The State subsequently filed a multiple offender bill of information against defendant. However, the multiple offender proceedings are the subject of another appeal, State v. Earl Horton, # 09-KA-251, 2009 WL 3447857, 28 So.3d 381.

FACTS

At approximately 3:15 a.m. on June 1, 2007, Sergeant Joseph Ragas was on patrol when he observed an SUV and a Cadillac following each other at a high rate of speed on Gretna Blvd. He explained that the section of Gretna Blvd. on which the vehicles were traveling had become a corridor to a drug infested area of the Scottsdale subdivision. Sgt. Ragas followed the cars as they turned into the Scottsdale subdivision and saw both cars run a stop sign. He was behind the second vehicle, which was the Cadillac, and activated his lights and siren to initiate a traffic stop. The driver of the Cadillac refused to stop and sped off. Sgt. Ragas followed the Cadillac through the neighborhood at speeds of 40-45 mph until the Cadillac eventually crashed into a light pole on Otis St. During the chase, Sgt. Ragas confirmed that the Cadillac was a stolen vehicle.

The driver, who was the sole occupant, exited the vehicle, grabbed at his waistband, and turned to run, at which time a handgun dropped to the ground. The driver, later identified as defendant, then ran into the backyard of a nearby residence and climbed over the fence into the adjacent parking lot of Mothe’s |r,Funeral Home. Sgt. Ragas pursued defendant as he went over the fence into the parking lot of the funeral home. As Sgt. Ragas came over the fence, he saw defendant running in the parking lot along the fence line toward a State building on the Westbank Expressway. He also saw two other deputies in the parking lot of the funeral home who were close to defendant and who he thought were about to catch defendant, so he returned to secure the Cadillac. He observed a second weapon on the floorboard of the passenger side and advised over the radio that defendant was armed. He then instructed officers to set up a perimeter around the State building, which was fenced in.

Meanwhile, Deputy Carl Cade, one of the two deputies in the funeral home’s parking lot, saw defendant running through the funeral home parking lot and watched him climb over the chain link fence and enter the parking lot of the State building. He saw defendant jog toward the back of the State building and disappear between some FEMA trailers.

As the perimeter was set up, Deputy Curtis Roy responded to the scene with his K-9, Taaka. He went through the State building, which was unlocked by a cleaning crew that was cleaning the building, into the fenced-in back parking lot area and released Taaka on a 30 ft. lead. Taaka alerted to the FEMA trailers. Deputy Roy gave a warning but there was no response. Deputy Roy then saw defendant make a break for the back fence that ran along the residences. He released Taaka, who seized defendant by biting him on the arm. Defendant proceeded to punch the dog until he was knocked to the ground and handcuffed. Deputy Roy explained that defendant had been hiding underneath the insulation under one of the trailers.

Later the same day, an Otis St. resident, Angelo Deleo, discovered a revolver in his backyard, which was behind the State building. It was determined |fithat the revolver had been previously stolen. Additionally, it was discovered that the handgun discarded by defendant outside the Cadillac had been stolen from an NOPD Lieutenant’s car in April 2007.

LAW AND DISCUSSION

In his first counseled assignment of error, defendant argues that the evidence was insufficient to support the verdict, because the State failed to prove his identity as the perpetrator of the charged offenses. He contends there was no physical evidence linking him to the Cadillac or to any of the firearms allegedly discarded by him or found in the car. He further maintains that there was an irreconcilable conflict between the description of the suspect and his appearance, because he did not match the description given by Sgt. Ragas to dispatch. Thus, defendant argues that the State did not exclude the reasonable hypothesis that he was innocently ensnared in a trap set for another.

The State responds that the evidence sufficiently proved defendant’s identity as the perpetrator, because it showed that the police maintained an almost constant view of defendant from the time of the traffic violation until he entered the secured perimeter. The State contends there were no other subjects in the area at the early hour of 3:30 a.m., defendant was the only one being pursued, and he was found hiding in the secured area. Additionally, the State asserts that defendant’s name and address were found on a piece of paper on the floor of the stolen vehicle.

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A reviewing court is required to consider the whole record and determine whether a rational trier of fact Lcould have found defendant guilty beyond a reasonable doubt. State v. Price, 00-1883 (La.App. 5 Cir. 7/30/01), 792 So.2d 180, 184.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove defendant’s identity as the perpetrator. State v. Ingram, 04-551, p. 6 (La.App. 5 Cir. 10/26/04), 888 So.2d 923, 926. When the key issue is identification, the State is required to negate any reasonable probabili ty of misidentification in order to carry its burden of proof. Id. Positive identification by only one witness is sufficient to support a conviction. State v. Weaver, 05-169, p. 11 (La.App. 5 Cir. 11/29/05), 917 So.2d 600, 608, writ denied, 06-695 (La.12/15/06), 944 So.2d 1277.

Defendant does not argue that the State failed to establish any of the essential statutory elements of his convictions but rather contends that the State failed to prove beyond a reasonable doubt his identity as the offender. To prove identity, the State offered the testimony of several witnesses. Sgt. Ragas testified that he saw defendant exit the driver’s side of the Cadillac, drop a handgun, and run into the backyard of a residence. Sgt. Ragas followed defendant and saw him climb over the fence into the parking lot of Mothe’s Funeral Home. He climbed the fence and saw defendant run toward the State building. Sgt. Ragas identified defendant in court and explained that he and defendant were in close proximity when defendant exited the car and he was sure defendant was the person he saw exit the car.

Deputy James Carrigan testified that he responded to the parking area of the funeral home after hearing the dispatch of the vehicle chase, crash, and flight of defendant. He stated Sgt. Ragas had just indicated defendant was “getting ready to go over the back fence” when he saw defendant come across the fence. According lato Deputy Carrigan, defendant saw the officers and ran straight to the State building and jumped the fence.

Deputy Carl Cade also testified that he responded to the funeral home parking lot shortly after the call came out. When he arrived, he saw defendant running through the parking lot and saw him climb over the chain-link fence, which had barbed wire on top, into the State building parking lot. Deputy Cade stated he watched defendant jog toward the back of the State building and disappear between trailers that were on the property. Deputy Cade identified defendant in court as the person he saw climb over the fence into the State building parking lot.

Shortly thereafter, defendant was apprehended in the back portion of the State building parking lot near the trailers. According to the dispatch log, the initial call came in at 3:16 a.m. At 3:18 a.m., it was reported that defendant was last seen jumping the fence by the funeral home. The K-9 unit arrived at the State building at 3:22 a.m. and alerted to defendant’s presence at 3:32 a.m. in the area of the trailers, where defendant was last seen.

Defendant contends that there was an irreconcilable conflict between Sgt. Ragas’s description of the subject to dispatch and defendant’s appearance. Sgt. Ragas described the subject to dispatch as having “a lot of hair, like long braids.” He also described the subject’s clothing as a black shirt and dark jeans. When defendant was arrested, he had a closely shaved head and was wearing a black shirt, which was torn or shredded, and jeans. The torn or shredded shirt was consistent with testimony indicating that he was seen climbing over a barbed wire fence into the parking lot of the State building. When asked to explain the discrepancy between the description of the suspect’s hair style and defendant’s hair at the time of his arrest, Sgt. Ragas stated that he was obviously wrong when | ¡¡describing the suspect’s hair style. Sgt. Ragas pointed out that the first description he gave was that of the suspect’s clothing and that the hair style description was not given until later.

As the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. State v. Williams, 04-1016, p. 8 (La.App. 5 Cir. 3/29/05), 901 So.2d 527, 531-32, writ denied, 05-1080 (La.12/9/05), 916 So.2d 1056. Any conflicting testimony as to factual matters, the resolution of which depends on a determination of the credibility of the witnesses, goes to the weight of the evidence and not its sufficiency. Id. at 8, 901 So.2d at 532. It is not the function of an appellate court to assess credibility or reweigh the evidence. Id.

Despite the discrepancy between Sgt. Ragas’ description of the suspect’s hair style and defendant’s appearance, the jury apparently believed certain aspects of Sgt. Ragas’ testimony that linked defendant to the incident and rejected defendant’s theory of mistaken identity. Furthermore, defendant’s identity was established by several other witnesses. From the time defendant exited the vehicle, he was in almost constant view of the police until he disappeared in between the trailers in the parking lot behind the State building. Shortly thereafter, defendant was apprehended in the secured area after he was seen running from the trailer area to the back fence.

Viewing the evidence in a light most favorable to the State, we find that the State negated all reasonable likelihood of misidentification and sufficiently proved defendant’s identity as the perpetrator of the offenses. Accordingly, this assignment of error is without merit.

In his second counseled assignment of error, defendant asks this Court to review the record for all errors patent. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), regardless of whether defendant makes such a request.

As noted by the State in its appel-lee brief, the trial court failed to impose a mandatory fine for counts two, four, and five, felon in possession of a firearm, as required by LSA-R.S. 14:95.1, and thus, imposed an illegally lenient sentence on those counts. LSA-R.S. 14:95.1(B) requires a fine of “not less than one thousand dollars nor more than five thousand dollars.”

This Court has the authority to correct an illegally lenient sentence. LSA-C.Cr.P. art. 882. However, this authority is permissive rather than mandatory. Recently, in State v. Campbell, 08-1226, (La.App. 5 Cir. 5/26/09), 15 So.3d 1076, this Court noted defendant’s indigent status and declined to correct an illegally lenient sentence where the district court failed to impose a mandatory fine. In the present case, it is noted that defendant is indigent, since he is represented by the Louisiana Appellate Project, which provides appellate services for indigent criminal defendants in non-capital felony cases. Due to defendant’s indigent status, we decline to remand this matter for imposition of the mandatory fine.

It is also noted that at sentencing, the trial court failed to indicate whether or not the sentences on counts four and five, felon in possession of a firearm, and counts six and seven, illegal possession of a stolen firearm, were to be served at hard labor. The commitment reflects the term of each sentence, but it does not indicate that any of the sentences on counts four through seven were to be served at hard labor. In a separate paragraph, the commitment states that defendant was sentenced to imprisonment at hard labor for a term of 10 years. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

InLSA-C.Cr.P. art. 879 requires a court to impose a determinate sentence. If the applicable sentencing statute allows discretion, the failure to indicate whether the sentence is to be served at “hard labor” is an impermissible indeterminate sentence. State v. Norman, 05-794, p. 8 (La.App. 5 Cir. 3/14/06), 926 So.2d 657, 661, writ denied, 06-1366 (La.1/12/07), 948 So.2d 145.

Defendant was sentenced on counts four and five, felon in possession of a firearm, pursuant to LSA-R.S. 14:95.1(B), which mandates the sentence be at hard labor. Because the statute mandates hard labor and there is no discretion allowed, the trial judge’s failure to state that these sentences were to be at hard labor is harmless error and no corrective action is required for counts four and five.

Conversely, LSA-R.S. 14:69.1, under which defendant was sentenced for counts six and seven, allows discretion on the part of the trial judge and states the sentence shall be served with or without hard labor. Thus, the trial court’s failure to specify whether defendant’s sentences on counts six and seven were to be served with or without hard labor renders them indeterminate sentences. As such, we must vacate defendant’s sentences on counts six and seven and remand the matter to the trial court for the imposition of determinate sentences in accordance with LSA-C.Cr.P. art. 879.

No other patent errors requiring corrective action were noted.

In defendant’s first pro se assignment of error, he argues that he received ineffective assistance of counsel because his trial counsel (1) allowed the State to use Brady material that was subsequently destroyed, (2) allowed two officers to testify even though they were not on the State’s witness list, (3) failed to impeach officers at trial with contradicting statements, (4) allowed the State to put officers on the stand outside discovery, and (5) failed to support his pro se motions for production of the police manual and for expert funds. The State responds that | l2these claims should be deferred to post-conviction relief proceedings because defendant references several documents that are not part of the record and, thus, cannot be considered in support of his claim on appeal.

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. State v. Taylor, 04-346, p. 10 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595. When the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. Where the record does not contain sufficient evidence to fully explore a claim of ineffective assistance of counsel, the claim should be relegated to post-conviction proceedings under LSA-C.Cr.P. arts. 924-930.8.

In the present ease, the record does not contain sufficient evidence to address all of defendant’s claims of ineffective assistance of counsel. One of defendant’s claims for ineffective assistance of counsel relates to witnesses outside the State’s witness list. Although defendant attaches the State’s witness list to his pro se appellant brief, the witness list is not included in the appellate record. It is well-settled that an appellate court is precluded from considering evidence which is not part of the record. State v. Smith, 03-786, pp. 15-16 (La.App. 5 Cir. 12/30/03), 864 So.2d 811, 823, writs denied, 04-380 and 04-419 (La.6/25/04), 876 So.2d 830.

When the record contains insufficient evidence to consider all of the allegations of ineffectiveness of counsel, this Court has declined to address any of the claims stating that the entirety of the claims are more properly addressed on post-conviction relief at an evidentiary hearing. State v. Allen, 06-778, pp. 11-12 (La.App. 5 Cir. 4/24/07), 955 So.2d 742, 752, writ denied, 08-2432 (La.1/30/09), 999 So.2d 754. Thus, in the present case, we will not address defendant’s claims | ,3of ineffective assistance of counsel in this appeal, because they would be more properly addressed in their entirety by the trial court on post-conviction relief at an evidentiary hearing.

In his second pro se assignment of error, defendant argues that he was denied the right to a fair trial because the State suppressed Brady evidence through its mishandling and ultimate destruction of exculpatory evidence. Specifically, defendant maintains he was denied the ability to test the evidence, namely the car and a letter found within the car, for DNA and fingerprint evidence, which would have led to the true perpetrator and exonerated him. The State contends that defendant has failed to show the State suppressed any exculpatory or impeachment evidence and, therefore, Brady is not implicated. The State further asserts the record does not show the alleged evidence was destroyed. The State notes that defendant fails to acknowledge he was seen exiting the car and that fingerprint analysis was unnecessary because defendant was apprehended at the scene.

Due process requires that the State provide a defendant with any exculpatory evidence in its possession which is material to defendant’s guilt or punishment, regardless of the good faith or bad faith of the prosecutor. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). Where a defendant claims that his due process rights have been violated due to the State’s failure to preserve potentially useful evidence, the defendant has the burden of showing that the State acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). In California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984), the United States Supreme Court explained:

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this | ^standard of constitutional materiality, ... evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

In State v. Schexnayder, 96-98, p. 11 (La.App. 5 Cir. 11/26/96), 685 So.2d 357, 365, writ denied, 97-67 (La.5/16/97), 693 So.2d 796, cert. denied, 522 U.S. 839, 118 S.Ct. 115, 139 L.Ed.2d 67 (1997), defendant claimed that the State destroyed his car, which deprived him access to important exculpatory evidence. At trial, the officers testified that an inventory search of the car was conducted and no evidence was seized from the car and no photographs were taken. The car was later destroyed. Defendant argued that he was deprived of the opportunity to impeach State witnesses without the car or photographs of the car as evidence. This Court determined that defendant did not offer sufficient proof that the State acted in bad faith in destroying the car. Specifically, this Court explained that defendant failed to show that the car had exculpatory value that was apparent prior to its destruction. Id. at 11-13, 685 So.2d at 365-66.

Also, in State v. Harris, 01-2730, p. 21 (La.1/19/05), 892 So.2d 1238, 1253, n. 31, cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005), the Louisiana Supreme Court found no merit in defendant’s argument that his due process rights were violated when DNA evidence was destroyed and he was prevented from testing it. The Court noted that defendant did not allege bad faith by the State in the evidence’s destruction and that the destruction of the DNA samples “allowed defense counsel to criticize the police’s investigation of the crime and cast doubt on the police’s handling of the entire case.”

In the present case, defendant seems to suggest that if he had access to the car, he could have had it tested for fingerprints. He also suggests that a letter found in the car had blood smeared on it and if he had access to the letter, he could | lfihave had it analyzed for DNA evidence. However, defendant does not allege bad faith on the part of the State in the alleged destruction of evidence. Furthermore, defendant fails to show that the car or the letter had apparent exculpatory value. Considering the facts along with the applicable law, we find that defendant has not shown that his due process rights were violated or that he was denied the right to a fair trial. This assignment of error is without merit.

In his third pro se assignment of error, defendant argues that he was denied the right to compulsory process to obtain expert witnesses because of the loss or destruction of potentially exculpatory evidence by the State. He asserts the lost or destroyed evidence could have been analyzed by expei'ts who could have testified for the defense.

A criminal defendant is constitutionally guaranteed the right to compulsory process and to present a defense. United States Constitution, Sixth Amendment; Louisiana Constitution, Article I, § 16. A defendant’s right to compulsory process is the right to demand subpoenas for witnesses and the right to have those subpoenas served. State v. Arabie, 07-806, p. 8 (La.App. 5 Cir. 3/11/08), 982 So.2d 136, 141, unit denied, 08-928 (La. 11/21/08), 996 So.2d 1104. A defendant’s inability to obtain service of a requested subpoena is not an automatic ground for reversal. He must show prejudicial error, demonstrating that the witness’ testimony would be favorable to the defense and the results of the trial would possibly be different if the witness were to testify. Id.

Defendant essentially claims that but for the loss or destruction of evidence, he could have obtained expert witnesses to examine the evidence and to testify as to his innocence. However, defendant’s claim does not constitute the denial of his constitutional right to compulsory process. Defendant does not identify the witnesses he wished to call, the substance of their testimony, or indicate that he |j (¡requested subpoenas that were not served. Accordingly, this assignment of error is without merit.

In defendant’s fourth pro se assignment of error, he contends that he was denied access to the courts when the trial court erred in proceeding to trial without hearing all of his motions, especially his pro se motion for the production of the police manual and for expert funds.

As pointed out by the State in its appellee brief, a trial court is not required to entertain pro se motions when a defendant is represented by counsel and entertaining the motions will lead to confusion at trial. State v. Holmes, 06-2988, p. 80 (La.12/2/08), 5 So.3d 42, 94. The Louisiana Supreme Court has explained that although an indigent defendant has a right to counsel as well as the opposite right to represent himself, he has no constitutional right to be both represented and representative. Id. at 80-81, 5 So.3d at 94. Furthermore, a defendant waives all pending motions, including pro se motions, by proceeding to trial without objecting to the lack of a ruling on the motions. See State v. Watson, 08-214, pp. 10-11 (La.App. 5 Cir. 8/19/08), 993 So.2d 779, 786.

The record shows that defendant filed numerous pro se pre-trial motions, some that were ruled upon prior to trial and some that were not. Defendant proceeded to trial without objecting to the trial court’s failure to rule on his pro se pretrial motions. Thus, defendant waived all pending pre-trial motions for purposes of appellate review. Considering the applicable law on this issue, this assignment of error is without merit.

In his fifth pro se assignment of error, defendant contends that his due process rights were violated, because the State used perjured testimony. He specifically maintains that the police testified falsely and points to discrepancies in the testimony of the officers. The State responds that defendant failed to object to 117the testimony as perjured and, thus, waived any error on appeal. The State nonetheless maintains that the discrepancies appear attributable to the lack of specific recall of each officer, rather than perjury, and contends that the inconsistencies in the testimony were immaterial.

In State v. Singleton, 05-634, p. 9-10 (La.App. 5 Cir. 2/14/06), 923 So.2d 803, 809-10, writ denied, 06-1208 (La.11/17/06), 942 So.2d 532, this Court determined that the defendant waived his right to assert his claim on appeal that the State presented perjured testimony, because he did not object to the testimony as perjury at trial. Likewise, in State v. Ayo, 08-468, pp. 18-19 (La.App. 5 Cir. 3/24/09), 7 So.3d 85, 97-98, this Court found the defendant was precluded from raising the issue of perjured testimony on appeal because he failed to object to the testimony at trial, thereby denying the trial court an opportunity to rule on his perjury claim. In Ayo, the defendant relied on internal contradictions in the testimony to support his claim of perjury, and the Court noted that the defendant based his claims of perjury on the trial record rather than newly discovered external sources. Thus, the Court concluded that the substance of the claim and its factual underpinnings were known to the defendant at the time of trial and he failed to object to the testimony.

In the present case, defendant failed to object to the officers’ testimony on the basis of perjury. He points to discrepancies in the record and does not base his perjury claim on newly discovered external sources. Thus, the claims were known to him at the time of trial and he did not object. As such, he is precluded from raising the issue of perjured testimony for the first time on appeal.

DECREE

11sFor the foregoing reasons, we affirm defendant’s convictions and his sentences on counts one through five. We vacate defendant’s sentences on counts six and seven and remand this case to the trial court for the imposition of determinate sentences on counts six and seven.

CONVICTIONS AFFIRMED; SENTENCES ON COUNTS SIX AND SEVEN 'VACATED; REMANDED FOR RE-SENTENCING.

      . Defendant’s motion for appeal in the present appeal was premature when it was filed after his conviction and imposition of the original sentence but before the multiple offender adjudication and sentence. However, the defendant's subsequent resentencing after his multiple offender adjudication, as shown rn appeal record #09-KA-251, cured this procedural defect. See State v. Davis, 07-544, p. 3 (La.App. 5 Cir. 12/27/07), 975 So.2d 60, 63, n. 1, writ denied, 08-380 (La.9/19/08), 992 So.2d 952. Defendant also filed a subsequent motion for appeal after his multiple offender sentence was imposed.

      . We note that defendant's perjury claim appears to be based on inconsistencies between the officers' testimony, which goes to the weight of the evidence and does not establish perjury. See State v. Jefferson, 04-1960, pp. 30-32 (La.App. 4 Cir. 12/21/05), 922 So.2d 577, 599-600, writ denied, 06-940 (La. 10/27/06), 939 So.2d 1276.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Earl HORTON.
    No. 09-KA-251.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.
    See also 28 So.3d 370, 2009 WL 3448207.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea Long, Shannon K. Swaim, Jarred Brandon Kinnett, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Earl Horton, Ferriday, LA, In Proper Person.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| oThe Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Earl Horton, with one count of aggravated flight from an officer in violation of LSA-R.S. 14:108.1 (count one), three counts of felon in possession of a firearm in violation of LSA-R.S. 14:95.1 (counts two, four and five), one count of possession of stolen property, a Cadillac valued over $500, in violation of LSA-R.S. 14:69 (count three), and two counts of possession of a stolen firearm in violation of LSA-R.S. 14:69.1 (counts six and seven). Defendant was convicted on August 6, 2008 of all seven counts and sentenced to two years at hard labor on count one, aggravated flight from an officer; ten years at hard labor on count two, felon in possession of a firearm; ten years at hard labor on count three, possession of stolen property; ten years on each count for counts four and five, felon in possession of a firearm; and five years on each count for counts six and |4seven, illegal possession of a stolen firearm. The trial court ordered the three counts of felon in possession of a firearm to be served without the benefit of parole, probation or suspension of sentence. It also ordered all the sentences to run concurrently with each other.

The State subsequently filed a multiple offender bill of information seeking to enhance defendant’s sentence on count three, possession of stolen property, based on a prior conviction for possession of cocaine. On January 30, 2009, defendant stipulated to the allegations contained in the multiple bill after being advised of his rights. The trial court vacated defendant’s original 10-year sentence on count three and imposed an enhanced sentence, under LSA-R.S. 15:529.1, of 20 years at hard labor without benefit of probation or suspension of sentence, to run concurrent with the other sentences he was serving.

Defendant’s convictions and sentences on the seven counts against him are the subject of another appeal before this Court, # 09-KA-250. In this appeal, defendant seeks review of his multiple offender sentence.

FACTS

At approximately 3:15 a.m. on June 1, 2007, Sergeant Joseph Ragas was on patrol when he observed an SUV and a Cadillac following each other at a high rate of speed on Gretna Blvd. He explained that the section of Gretna Blvd. on which the vehicles were traveling had become a corridor to a drug infested area of the Scottsdale subdivision. Sgt. Ragas followed the cars as they turned into the Scottsdale subdivision and saw both cars run a stop sign. He was behind the second vehicle, which was the Cadillac, and activated his lights and siren to initiate a traffic stop. The driver of the Cadillac refused to stop and sped off. Sgt. Ragas |sfollowed the Cadillac through the neighborhood at speeds of 40-45 mph until the Cadillac eventually crashed into a light pole on Otis St. During the chase, Sgt. Ragas confirmed that the Cadillac was a stolen vehicle.

The driver, who was the sole occupant, exited the vehicle, grabbed at his waistband, and turned to run, at which time a handgun dropped to the ground. The driver, later identified as defendant, then ran into the backyard of a nearby residence and climbed over the fence into the adjacent parking lot of Mothe’s Funeral Home. Sgt. Ragas pursued defendant as he went over the fence into the parking lot of the funeral home. As Sgt. Ragas came over the fence, he saw defendant running in the parking lot along the fence line toward a State building on the Westbank Expressway. He also saw two other deputies in the parking lot of the funeral home who were close to defendant and who he thought were about to catch defendant, so he returned to secure the Cadillac. He observed a second weapon on the floorboard of the passenger side and advised over the radio that defendant was armed. He then instructed officers to set up a perimeter around the State building, which was fenced in.

Meanwhile, Deputy Carl Cade, one of the two deputies in the funeral home’s parking lot, saw defendant running through the funeral home parking lot and watched him climb over the chain link fence and enter the parking lot of the State building. He saw defendant jog toward the back of the State building and disappear between some FEMA trailers.

As the perimeter was set up, Deputy Curtis Roy responded to the scene with his K-9, Taaka. He went through the State building, which was unlocked by a cleaning crew that was cleaning the building, into the fenced-in back parking lot area and released Taaka on a 30 ft. lead. Taaka alerted to the FEMA trailers. Deputy Roy gave a warning but there was no response. Deputy Roy then saw | (-.defendant make a break for the back fence that ran along the residences. He released Taaka, who seized defendant by biting him on the arm. Defendant proceeded to punch the dog until he was knocked to the ground and handcuffed. Deputy Roy explained that defendant had been hiding underneath the insulation under one of the trailers.

Later the same day, an Otis St. resident, Angelo Deleo, discovered a revolver in his backyard, which was behind the State building. It was determined that the revolver had been previously stolen. Additionally, it was discovered that the handgun discarded by defendant outside the Cadillac had been stolen from an NOPD Lieutenant’s car in April 2007.

LAW AND DISCUSSION

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellant counsel has filed an Anders 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, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds the defendant’s 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 [7their 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).

In State v. Jyles, 96-2669 at 2, 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 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. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 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 identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

In the present case, defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Appellate counsel notes that defendant stipulated to his status as a second felony |Roffender while represented by an experienced attorney. He observed that the trial court addressed defendant and ascertained that defendant knowingly and intelligently entered his stipulation. Appellate counsel further notes that defendant was sentenced in accordance with the multiple bill sentencing agreement and that the sentence was within the statutory limits. As such, counsel asserts there is no basis to appeal defendant’s multiple bill sentence.

Appellate counsel has filed a motion to withdraw as attorney of record which states that he complied with the requirements of Anders, and that he notified defendant of his right to file a pro se brief. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until June 3, 2009 to file a pro se brief. Defendant timely filed a pro se brief assigning five assignments of error. However, his assignments of error relate solely to his underlying convictions and have been addressed in his first appeal, #09-KA-250. Accordingly, they will not be readdressed in the present appeal.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The record shows that defendant was alleged to be a second felony offender based on a prior possession of cocaine conviction and his underlying conviction on count three for possession of stolen property. Defendant admitted his status as a second felony offender and executed a waiver of rights form. He was advised of his right to a multiple bill hearing, his right to an attorney during the hearing, and his right to remain silent. He admitted he could read and write and that he was satisfied with his attorney. Defendant further stated he was not forced or coerced into stipulating to the multiple bill.

| ciFurthermore, defendant received the sentence for which he bargained. He was advised the sentencing range as a multiple offender was five to 20 years and that he would not receive more than 20 years. The trial court subsequently sentenced him to 20 years. Although defendant received the maximum sentence, the record shows he had several felony convictions involving drugs and weapons. Thus, defendant’s sentence is not unconstitutionally excessive.

Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that he reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, we affirm defendant’s multiple offender sentence. We also grant appellate counsel’s motion to withdraw as attorney of record in the present case.

We have conducted an error patent review of the record of the multiple offender proceedings in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors patent in these proceedings.

DECREE

For the foregoing reasons, we affirm defendant’s multiple offender sentence. We also grant appellate counsel’s motion to withdraw as attorney of record in this case.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . The original multiple offender bill of information sought to enhance one of the counts of felon in possession of a firearm. However, the multiple bill was later amended to change the underlying offense to count three, possession of stolen property.

      . The facts set forth in this appeal are identical to those set forth in # 09-KA-250.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by die Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . Defendant filed the exact same pro se brief in # 09-KA-250 as he did in the present case.

      . Defendant is limited to an errors patent review of his multiple offender proceedings because an errors patent review of the original record in this case was conducted in defendant's first appeal, # 09-KA-250. See State v. Yrle, 05-202, p. 5 (La.App. 5 Cir. 10/6/05), 916 So.2d 1197, 1200.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Edward WILLIAMS, Jr.
    No. 09-KA-365.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long — Appellate Counsel, William C. Credo, III — Trial Counsel, Assistant District Attorneys, Gretna, Louisiana, for Appellee, State of Louisiana.
    Mary E. Roper, Louisiana Appellate Project, Baton Rouge, LA, for Appellant, Edward Williams, Jr.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

| ¡This is defendant’s second appeal. In this appeal, defendant argues that; on remand, the trial judge failed to resentence him on both counts and instead imposed only one sentence. We agree and remand for resentencing.

Procedural History

On April 17, 2003, defendant was indicted for sexual crimes against two minor females. For acts committed against A.L., defendant was charged with one count of aggravated rape of a juvenile, in violation of La. R.S. 14:42 (Count 1) and one count of molestation of a juvenile, in violation of La. R.S. 14:81.2 (Count 2). Likewise, for acts committed against B.B., defendant was charged with one count of aggravated rape of a juvenile, in violation of La. R.S. 14:42 (Count 3) and one count of molestation of a juvenile, in violation of La. R.S. 14:81.2 (Count 4). Defendant was arraigned and pled not guilty.

13Pefendant moved to sever the rape charges from two molestation charges, which the trial court granted. On October 12, 2004, trial of the two rape charges commenced. On October 13, 2004, the twelve-person jury found defendant guilty, on Count One, of aggravated rape on A.L., and guilty, on Count Two, of sexual battery of B.B. Defendant filed a motion for new trial on October 27, 2004. The trial court did not rule upon the motion.

On November 15, 2004, the trial court sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on the rape conviction, and imprisonment at hard labor for ten years on the sexual battery conviction, with the sentences to run eon-secutively. Defendant filed a motion for appeal, which was granted.

On appeal, defendant argued that the trial court erred by failing to suppress his statements, by denying his motion to sever the rape counts, and by imposing consecutive sentences. On November 29, 2005, this Court, noting the lack of a ruling on defendant’s motion for new trial, conditionally affirmed the convictions and remanded for a ruling on the motion for new trial.

On February 12, 2009, on remand from this Court, the district court judge held a hearing on the motion for new trial and took the matter under advisement. On March 16, 2009, the trial judge subsequently denied the motion and provided well-written reasons for judgment. On March 24, 2009, the district court judge sentenced defendant to “life without probation, parole, or suspension of sentence ... at hard labor.” That day, defendant filed a timely motion for appeal, which was granted.

\ALaw and Argument

On appeal, defendant argues that the trial court erred by failing to impose a sentence for both convictions. The State agrees and responds that the matter should be remanded for resentencing. We agree and remand for resentencing.

Our review of the transcript of the re-sentencing hearing on March 24, 2009 reveals that the district court judge pronounced only one sentence: “life without probation, parole, or suspension of sentence ... at hard labor.” The trial judge did not specify to which count, of the two counts tried, the sentenced corresponded.

With few exceptions, the sentencing judge must impose a separate sentence for each separate count on which the defendant was convicted. La. C. Cr. P. art. 879; State v. Cambre, 04-1317 (La.App. 5 Cir. 4/26/05), 902 So.2d 473, 485, writ denied, 05-1325 (La.1/9/06), 918 So.2d 1039.

In the instant case, defendant was convicted of aggravated rape and sexual battery, but received only one sentence on remand. As in Cambre, the two convictions in the instant case were for distinctly different crimes perpetrated on different victims that provided diverse sentences. Therefore, we agree that defendant must receive a separate sentence for each offense. Accordingly, we vacate the imposed sentence and remand for resentenc-ing on each conviction.

\fJError Patent Discussion

The record was reviewed for errors patent, according to La. C. Cr. P. art. 920. We have already vacated the sentence and remanded for resentencing and, thus, discussion of errors patent is for record purposes only.

First, the record does not reflect that defendant was notified of the sex offender registration requirements. Both of defendant’s convictions are defined as sex offenses by La. R.S. 15:541. See La. R.S. 15:541(24); La. R.S. 15:541(25)(a). Those defendants convicted of enumerated sex offenses must be notified in writing of the statutory registration requirements. La. R.S. 15:548. At resentencing, the trial judge must notify defendant of both the general sex offender registration requirements and the child predator registration provisions, and file written proof, in the record, of said notice to defendant.

Second, the trial court did not adequately advise defendant of the two-year prescriptive period for applying for post conviction relief under La. C. Cr. P.art. 930.8. At resentencing, the trial judge must advise defendant of the two-year prescriptive period in conformity with La. C. Cr. P. art. 930.8, by sending written notice to defendant within ten days after the rendition of this opinion, and file written proof, in the record, of said notice to defendant. State v. Thompkins, 04-1062, p. 9 (La.App. 5 Cir. 2/15/05), 896 So.2d 1165, 1170.

Based on the foregoing, we affirm defendant’s convictions, vacate the imposed sentence, and remand for imposition of sentence for each conviction.

CONVICTIONS AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

      .We have excerpted the procedural history from our opinion in defendant’s first appeal. State v. Williams, 05-317 (La.App. 5 Cir. 11/29/05), 918 So.2d 466, writ denied, 06-0638 (La. 10/6/06), 938 So.2d 64. Further, the facts of this case are available in State v. Williams, supra.

      . Id. at 468.

      . On November 15, 2004, the State nolle prossed the two molestation counts.

      . State v. Williams, 918 So.2d at 468.

      . Id. at 468-69.

      . Id. at 472-78. In our opinion in defendant's first appeal, this Court pretermitted discussion of defendant's consecutive sentences. Id. at 478.

      . Id. at 469, 479.

      . There is an exception to the general rule where the offenses are based on a common scheme or plan. See La. C. Cr. P. art. 883; State v. Collins, 04-751 (La.App. 5 Cir. 11/30/04), 890 So.2d 616, 620.

      . When the offenses were committed, an aggravated rape conviction carried a penalty of either death or life imprisonment at hard labor, whereas a sexual battery conviction carried a penalty of imprisonment, with or without hard labor, for not more than ten years. In 2008, the United State Supreme Court held that the death penalty as punishment for aggravated rape was unconstitutional. Kennedy v. Louisiana, - U.S. -, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008).

      . Here, we pretermit discussion of consecutive sentences because only one sentence was imposed on remand.

      . State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990).


author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Shawn MURPHY a/k/a Don Murphy.
    No. 09-KA-139.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 27, 2009.

      Paul D. Conniek, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Vincent Paciera, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellee.
    Panel composed of Judges, MARION F. EDWARDS, CLARENCE E. McMANUS and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

|2Pefendant, Shawn Murphy, a/k/a Don Murphy, pled guilty to possession of cocaine in violation of LSA-R.S. 40:967(C), reserving his right to appeal pursuant to State v. Crosby . He was sentenced as a second felony offender, to ten years imprisonment at hard labor, concurrent with his sentence imposed in case number 08-4532, and concurrent with a sentence for contempt of court for failure to appear. This timely appeal follows.

Defendant pled guilty and did not proceed to trial. As such, the facts were taken from the bill of information, which provides that on or about January 4, 2008, defendant and co-defendant Jodylynn Fus-sell “knowingly and intentionally possessed] a controlled dangerous substance, to wit: Cocaine.”

In this appeal, the defendant alleges that the trial court erred by not hearing any pre-trial motions prior to accepting his Crosby plea and without first ascertaining that a legal, factual basis existed to support the pleas.

IsOn February 19, 2008, defense counsel filed omnibus motions on defendant’s behalf including motions for discovery, motions for preliminary hearing and bond reduction, and motions to suppress evidence, inculpatory statements, and identifications.

By order of the court on March 12, 2008, the trial judge granted the motion for discovery and set the remaining motions for hearing on April 8, 2008. In the order, the trial court cautioned that failure to appear might result in dismissal or waiver of motions, and the court also further directed counsel to amend the motions to suppress to allege facts that would require the granting of relief, and cautioned that failure to do so could result in dismissal.

Defendant failed to appear for court on April 8, 2008, although his counsel did appear. The trial judge granted the State’s oral motion for bond forfeiture, and an attachment was issued for defendant’s arrest. The trial court also dismissed defendant’s pending motions, including the motions to suppress and the motion for preliminary examination. According to the minute entry, defense counsel objections were noted.

On August 14, 2008, defendant appeared for an adjudication for contempt of court for his failure to appear on April 8th. He was found to be in contempt and sentenced to serve six months “flat time” in parish prison. At that time, the trial court also granted counsel’s motion to withdraw.

After defense counsel was allowed to withdraw, on August 28, 2008, new counsel from the Public Defender Office filed what he referred to as “standard IDB” omnibus motions, which included motions to suppress statements, evidence, and identification, and motions for discovery and for preliminary examination. On September 11, 2008, the trial judge ruled that the discovery motion was moot because it had been previously satisfied. The court further denied the motion for | ¿preliminary examination and motions to suppress as untimely and without good cause under LSA-C.Cr.P. art. 521, and also noted that the same motions had been denied on April 8, 2008, and that the current motions to suppress did not allege facts specific to the case. The court provided that defendant’s motion for an evidentiary hearing was denied until the facts requiring relief were alleged in the motion to suppress.

On October 21, 2008, defendant entered a Crosby plea, but did not specify the particular ruling he was reserving for review. Instead, defendant pled guilty to possession of cocaine under Crosby, reserving the right to appeal “any denial of his motions.”

In this appeal, defendant alleges that the trial court erred in dismissing his motion for preliminary examination, and his suppression motions, without first conducting a hearing. He requests withdrawal of his pleas and that the State be required to prove the legality of the investigatory stop. He also alleges that the trial court erred in accepting his guilty plea without engaging him in any colloquy regarding the factual basis for the pleas.

A guilty plea normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects. However, upon entering a plea of guilty, a defendant may be allowed appellate review if he expressly reserves his right to appeal a specific adverse ruling. State v. Landry, 02-1242, p. 6 (La.App. 5 Cir. 4/29/03), 845 So.2d 1233, 1236, writ denied, 03-1684 (La.12/19/03), 861 So.2d 556.

In this case, the defendant pled guilty, reserving his rights with regard to the dismissal/denial of his suppression motions. Defense counsel stated that defendant had pled guilty in two separate proceedings (this one and one other), and that his IfiPlea in the other proceeding should also be subject to this appeal. The State agreed, stating that

... it is the State’s position and agreement that if the Court takes the Crosby plea that’s fine but we also then reserve our right to go forward — effectively withdraw his plea in 08-4532 if for any reason he would be successful in 08-632 [the current case]. In other words, if the Court of Appeal says that his evidence should have been suppressed in the older case [the current case] then the defendant’s plea is negated in OS-4532, and we start from scratch in that case.

Thereafter, the State introduced the police report and the transcript of co-defendant’s motion to suppress into evidence, because as the assistant district attorney stated “... just so that a review in (sic) court would have facts to look at.”

From the above discussion, it appears that defendant entered his guilty plea in the present case reserving his right to appeal the issue of whether the evidence against him was lawfully seized, and whether is would be admissible at trial, in addition to the issue of whether the court erred in dismissing his motions without a hearing. Because the trial court dismissed defendant’s motions to suppress, it did not rule on the admissibility of the evidence.

The issue of admissibility was raised in appellant’s brief, where he contends that the trial court erred in failing to make the State prove the admissibility of evidence thereby depriving him of his constitutional due process rights, and appellee’s brief, where the state contends that any error in the trial court’s procedural rulings is harmless because (the State contends) the officers had reasonable suspicion to believe that the defendant had engaged in illegal drug activity and based on this, the stop and subsequent arrest was legal, and the trial court’s failure to grant the motion to suppress was harmless. However, despite the State’s exhibits at trial, this Court cannot rule on the admissibility of the evidence as a matter of first impression.

| fiThe Louisiana Supreme Court, in State v. Floyd, 07-0216 (La.10/5/07), 965 So.2d 865, set forth the procedure to follow where a reviewing court cannot consider the merits of a defendant’s suppression claim because there was no ruling by the trial court on the admissibility. In that case, the appellate court had vacated defendant’s guilty plea where the trial court failed to complete the hearing and rule on defendant’s motion to suppress evidence. After reversing the ruling of the appellate court, the Supreme Court remanded the matter, stating that:

This case is remanded to the district court for purposes of completing the hearing on the motion to suppress and for a ruling on the merits of the search issue. If the court rules favorably to the defendant on the motions, it shall provide him with the opportunity of withdrawing his guilty plea and pleading anew. In the event of an adverse ruling on his motion the trial court shall maintain the guilty plead defendant may again appeal his conviction and sentence to the court of appeal on the basis of his original Crosby reservation.

At page 865. See also State v. Walton, 06-2553 (La.6/10/07), 957 So.2d 133, State v. Guillory, 06-2544 (La.6/1/07), 957 So.2d 132.

For the above discussed reasons, this matter is remanded for further proceedings consistent with this opinion.

REMANDED WITH INSTRUCTIONS.

      . State v. Crosby, 338 So.2d 584 (La.1976).


text:
    CREIGHTON, RICHARDS & HIGDON, L.L.C. v. Richards Clearview, L.L.C. and CPDC Properties, L.P. c/w Creighton, Richards & Higdon, L.L.C. v. RICHARDS CLEARVIEW, L.L.C. and CPDC Properties, L.P.
    Nos. 09-CA-247, 09-CA-685.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 29, 2009.

      Elizabeth H. Ryan Lemle & Kelleher, Attorney at Law New Orleans, Louisiana, for Defendant/Appellee.
    Michael H. Rubin, Jamie D. Seymore, Juston Michael O’Brien, McGlinchey Stafford, Attorneys at Law, Baton Rouge, Louisiana, and Andrew D. Weinstock Jennifer M. Morris Duplass, Zwain, Bourgeois, Pfister & Weinstock, Attorneys at Law, Metairie, Louisiana, for Plaintiffs/Appellants.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

12Creighton, Richards, & Higdon, LLC (CRH) filed this concursus proceeding against Richards Clearview, LLC (Clear-view) and CPDC Properties, LP (CPDC). In the petition it alleges that on April 17, 2006, Clearview and CPDC entered into a purchase agreement to transfer the controlling interest in the Clearview Mall from Richards to CPDC. CPDC delivered deposits of $450,000 to CRH, escrow agents. The closing for the transaction was scheduled for June 15, 2007; however, the sale was not completed. On July 3, 2007, CRH placed the deposits in the registry of the court and instituted this action.

CPDC filed an answer in this concursus proceeding in which it alleged that it was entitled to return of its deposit because Clearview as seller did not comply with the terms of the sale, in that it did not provide clear title, amend its articles of organization as required or provide adequate documentation.

Clearview also filed an answer in which it alleged that is was entitled to the deposit because the closing did not take place due to CPDC’s failure to meet its contractual obligations, and to attend the closing, and therefore it was entitled to liquidated damages equal to the agreed-upon full purchase price. Clearview also asserted claims for liquidated damages for breach of contract, and additional |sdamages for CPDC’s alleged breach of its duty of strict confidentiality owed to Clearview by making financial information and documents available to third parties without Clear-view’s consent.

Clearview filed a motion for partial summary judgment on the issue of entitlement to the funds deposited in the registry of the court. In its motion, it expressly reserved the issues of liquidated damages and beach of confidentiality. CPDC filed a cross-motion for summary judgment, also on the issue of entitlement to the funds deposited in the registry of the court. After the hearing was held, the trial court rendered judgment in favor of Clearview, and against CPDC, find that Clearview was entitled to the amount deposited in the registry of the court. CPDC filed a motion for appeal from that judgment.

Thereafter, Clearview filed a motion to designate the judgment as final, and to tax costs and interests. The trial court rendered judgment in favor of Clearview, awarding costs of $1,438.00. The court further granted the motion insofar as is sought to have the partial summary judgment designated as final. CPDC appealed from that judgment as well.

After the two appeals were lodged in this court, they were consolidated for consideration.

There are several issues raised in the trial court by the parties, including the disbursement of the funds on deposit in the registry of the court, whether Clear-view is entitled to liquidated damages for breach of contract and whether Clearview is entitled to damages for breach of the duty of confidentiality. Only one of these issues, the disbursement of funds on deposit, is currently before this court. In addition, Clearview has obtained a judgment granting costs, which is also before this court. As both judgments on appeal are partial judgments, we first consider whether these judgments are properly before the court. This court cannot ^determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. LSA-C.C.P. art. 2083; Phoenix Associates v. E.H. Mitchell & Co., 07-0108 (La.App. 1 Cir. 9/14/07), 970 So.2d 605, 610.

LSA-C.C.P. art. 1915 provides, in pertinent part,

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or in-tervenors.
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

In Succession of Jones, 08-1088 (La. App. 3 Cir. 10/29/08), 999 So.2d 3, 6, the court summarized the holding in R.J. Messinger v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113, as follows:

In Messinger, 894 So.2d 1113, the supreme court found that a trial court should give express reasons why there is no just reason for delay of an appeal of a partial final judgment. However, should the trial court fail to certify a partial final judgment, the Messinger court found that an appellate court cannot summarily dismiss the appeal. Instead, when the trial court fails to give reasons for designating a partial summary judgment as appealable, the Messinger court held that the appellate court should make a de novo determination by looking to the record for the existence of any justification for maintaining the appeal. The Messinger court additionally found that the appellate court could alternatively issue a rule to show cause why the appeal should not be dismissed.

See also Cavazzo v. Gray Ins. Co., 08-1407 (La.App. 3 Cir. 3/11/09), 8 So.3d 129, 131.

In Fakir v. State, Bd. of Supervisors, 08-111 (La.App. 3 Cir. 5/28/08), 983 So.2d 1024, 1029, the court recited the non-exclusive factors for use by the trial court when determining the certification of a judgment and for use by appellate courts when conducting a de novo review when no reasons are given by the trial court for its designation. These factors were set forth by the Louisiana Supreme Court in Messinger, supra at 1122, adopted from Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360 (3rd Cir.1975), as follows:

1) The relationship between the adjudicated and unadjudicated claims;
2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and
4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Considering these factors, we find that the trial court erred in determining that the partial summary judgment at issue was immediately appealable. The partial judgment does not terminate the litigation. The issues of entitlement to the funds or deposit in the registry of the court and the issue of liquidated damages both involve the actions of both parties in the events leading up to the date of closing, and therefore these claims are closely related. Judicial resources would be wasted by the appellate review of the partial summary judgment at this time, considering the probability of a later appeal involving the adjudication of the remaining claims. Set-liff v. Slayter, 08-1337 (La.App. 3 Cir. 1/7/09), 1 So.3d 799, 801. The trial court, pursuant to LSA-C.C.P. art. 1915(B)(2), could revise its ruling on the motion for partial summary judgment at any time prior to final judgment, rendering the need for this appeal moot. Id. In addition, judicial administration has been negatively affected if the remainder of the case has been | r,delayed pending the outcome of this appeal. Alternatively, if the matter has gone to judgment on the remaining issues, and we were to reverse the judgment before us and remand these issues for trial, the result would be piecemeal litigation. Fakier, supra at 1030; Berman v. De Chazal, 98-81 (La.App. 5 Cir. 5/27/98), 717 So.2d 658, 661. Accordingly, we find that this matter is not ripe for immediate appeal.

The trial court did not certify the judgment assessing costs as final. We likewise conclude that the judgment assessing costs is not a final judgment, and therefore not immediately appealable.

For the above discussed reasons, this appeal is dismissed.

APPEAL DISMISSED.