author: LILJEBERG, J.

text:
    STATE of Louisiana v. Theodore MATHIS
    NO. 18-KA-678
    Court of Appeal of Louisiana, Fifth Circuit.
    April 3, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLANT, THEODORE MATHIS, Bruce G. Whittaker
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg
   LILJEBERG, J.

Defendant appeals his 99-year sentence as a fourth felony offender, which was imposed when he was resentenced pursuant to the ruling in State ex rel. Esteen v. State , 16-949 (La. 1/30/18), 239 So.3d 233. For the following reasons, we affirm defendant's sentence, as amended, and we remand for correction of the uniform commitment order.

STATEMENT OF THE CASE

In March of 1998, defendant was convicted by a jury on two counts of armed robbery in violation of La. R.S. 14:64. He was sentenced on each count to imprisonment at hard labor for 99 years without the benefit of parole, probation, or suspension of sentence, to run concurrently. After the State filed a multiple bill and the trial court found defendant to be a fourth-felony offender, the trial court vacated defendant's sentence on count one and resentenced him under the multiple bill statute to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant filed an appeal.

In June of 1999, this Court affirmed defendant's convictions and sentences. The Louisiana Supreme Court thereafter denied writs. See State v. Mathis , 99-137 (La. App. 5 Cir. 6/1/99), 739 So.2d 1029 (unpublished opinion), writ denied , 99-2056 (La. 1/7/00), 752 So.2d 176. In the years that followed, defendant filed numerous post-conviction relief applications and motions to correct illegal sentence that were denied by the trial court and by this Court.

On April 24, 2018, defendant filed another pro se motion to correct illegal sentence. In this motion, defendant asserted that under Esteen , supra , he was entitled to be resentenced under the more lenient penalty provisions enacted by 2001 La. Acts 403, which reduced the sentencing range for a fourth-felony offender under certain circumstances from a life sentence to "a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life."

The State filed a response to the motion, in which it conceded that defendant was entitled to be resentenced under the ameliorative changes to the law enacted in Act No. 403 of 2001, but it argued that he was not entitled to be resentenced under any newer changes to the law. The State argued that the minimum sentence to which defendant could be resentenced was 99 years.

On August 30, 2018, at the hearing on the motion to correct illegal sentence, defense counsel argued that under Esteen , supra , defendant was entitled to be resentenced. She also argued that under State v. Dorthey , 623 So.2d 1276 (La. 1993), the trial court should deviate from the mandatory minimum 99-year enhanced sentence and resentence defendant to a lesser sentence. She noted that defendant had obtained several certificates and completed numerous programs while incarcerated. Defense counsel also pointed out that defendant's family had residency and employment plans in place for defendant should he be released. She stated that a 99-year sentence would be unconstitutionally excessive, given that defendant had made a complete transformation while incarcerated.

After counsel's argument, defendant addressed the court, stating that he had been "foolish" and had hurt a lot of people but that he was a changed man. Defendant asserted that he was 61 years old and had lost many family members while incarcerated. He further asserted that his life had changed, that he wanted to give back to society, and that he wanted to become a productive person.

Following defendant's statement, the trial court granted the motion to correct illegal sentence, vacated its "earlier" sentence, and resentenced him to imprisonment at hard labor for 99 years without the benefit of parole, probation, or suspension of sentence. The trial judge also commended defendant for the work and service he had done at Angola.

Defense counsel then argued that defendant was entitled to parole eligibility under La. R.S. 15:529.1. The State replied that defendant's sentence should be without the benefit of parole because any sentence on the multiple bill must have the same restrictions as the underlying offense, which in the instant case was armed robbery. After hearing the arguments of counsel, the trial judge found that defendant was entitled to parole eligibility under the multiple offender statute, and he ordered the enhanced sentence to be served without the benefit of probation or suspension of sentence. For clarification, the trial court then stated that it was vacating the life sentence on count one and resentencing defendant as a fourth-felony offender to 99 years imprisonment at hard labor without the benefit of probation or suspension of sentence, to run concurrently with his sentence on the other count in this matter. Defense counsel made an oral motion to reconsider sentence that was denied. The State objected to the sentence, arguing that it should be without the benefit of parole. Defendant appeals his sentence.

LAW AND DISCUSSION

On appeal, defendant argues that his 99-year sentence is unconstitutionally excessive. He claims that it is grossly out of proportion to the seriousness of the offense and nothing more than a purposeless and needless infliction of pain and suffering. Defendant maintains that while he has been incarcerated at Angola since 1998, he has obtained his G.E.D., completed the "New Hope Group of Alcoholics Anonymous" program, completed the "Living in Balance: Life of Addiction to a Life of Recovery" program, been baptized, completed the "LSP Anger Management Program," completed the "Transactional Analysis Substance Abuse" program, completed the one hundred-hour, pre-release program, worked for 20 years in the main prison kitchen, and is a Class "A" trustee at Angola. Based on his achievements and behavior while incarcerated, defendant contends that the trial court should have imposed a sentence that was a downward departure from the mandatory minimum sentence, pursuant to Dorthey , supra .

The State responds that on resentencing pursuant to Esteen , supra , defendant received the mandatory minimum sentence of 99 years for armed robbery as a fourth-felony offender. It asserts that mandatory minimum sentences are presumed to be constitutional, and that defendant has not met his burden of showing by clear and convincing evidence under Dorthey , supra , that the mandatory minimum sentence is nevertheless excessive as applied to him. The State also argues that the trial court erred by failing to order defendant's sentence to be served without the benefit of parole.

In Esteen , supra , the defendant was charged with drug and racketeering offenses committed in 1998 and 1999. He was ultimately found guilty of two counts of possession of cocaine over 400 grams, conspiracy to possess cocaine over 400 grams, and attempted possession of cocaine over 400 grams. The trial court sentenced him to consecutive terms of imprisonment at hard labor totaling 150 years, and his convictions and sentences were affirmed on appeal. In 2016, the defendant filed a motion to correct illegal sentences seeking the benefit of the more lenient penalty provisions that were enacted by the legislature in 2001 La. Acts 403, which the legislature later declared in La. R.S. 15:308(B)"shall apply to the class of persons who committed crimes, who were convicted, or who were sentenced" in accordance with enumerated provisions, including those pursuant to which the defendant was sentenced on three counts. The trial court denied the motion and the appellate court denied writs, relying on State v. Dick , 06-2223 (La. 1/26/07), 951 So.2d 124. Esteen , 239 So.3d at 235.

On review, the Louisiana Supreme Court in Esteen found that it erred in Dick to the extent that it found that the only avenue to gain the benefit of the more lenient penalty provisions retroactively was by application to the Louisiana Risk Review Panel at that time (subsequently amended to authorize application to the committee on parole). Esteen, 239 So.3d at 236. The Court asserted that the legislature, "[i]n the interest of fairness in sentencing," declared in La. R.S. 15:308(B) its intention that the more lenient penalty provisions be applied retroactively to those persons "who were sentenced according to [listed provisions] prior to June 15, 2001, provided that such application ameliorates the person's circumstances." Id. at 237. The Court found that because three of the defendant's sentences were for terms of imprisonment that were no longer authorized by law, and a more lenient penalty provision applied retroactively in accordance with La. R.S. 15:308(B), the defendant's remedy was by resentencing in the trial court pursuant to his motion to correct illegal sentences. The Court reversed the trial court's denial of the defendant's motion and remanded for resentencing on those three counts "pursuant to the more lenient penalty provisions that were enacted by the legislature in 2001 La. Acts 403, which the legislature later declared in La. R.S. 15:308(B) apply retroactively under the circumstances enumerated in that section." Esteen, 239 So.3d at 237-38.

La. R.S. 15:308(B) provides:

In the interest of fairness in sentencing, the legislature hereby further declares that the more lenient penalty provisions provided for in Act No. 403 of the 2001 Regular Session of the Legislature and Act No. 45 of the 2002 First Extraordinary Session of the Legislature shall apply to the class of persons who committed crimes, who were convicted, or who were sentenced according to the following provisions: ... R.S. 15:529.1(A)(1)(c)(ii)... prior to June 15, 2001, provided that such application ameliorates the person's circumstances.

In the instant case, defendant was convicted of two counts of armed robbery in violation of La. R.S. 14:64. The State filed a multiple bill alleging defendant to be a fourth-felony offender. The predicates for the multiple bill were as follows: 1) defendant pleaded guilty on October 18, 1990, to possession of cocaine in violation of La. R.S. 40:967(C) in case number 90-2174 in the 24th Judicial District Court; 2) defendant pleaded guilty on July 16, 1986, to simple robbery in violation of La. R.S. 14:65 in case number 86-1201 in the 24th Judicial District Court; and 3) defendant pleaded guilty on September 20, 1982, to theft over $ 500 in violation of La. R.S. 14:67. The trial court subsequently found defendant to be a fourth-felony offender, vacated the original sentence on count one, and resentenced him to life imprisonment.

Defendant committed the underlying crime of armed robbery in count one on July 22, 1997. At that time, La. R.S. 15:529.1(A)(1) provided in pertinent part:

c) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life; or
(ii) If the fourth or subsequent felony or any of the prior felonies is a felony defined as a crime of violence under R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years or of any other crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

In 2001, Act No. 403 reduced the penalties for many crimes, including certain sentences under La. R.S. 15:529.1. In 2001, La. R.S. 15:529.1(A)(1) was amended to provide as follows in pertinent part:

(c) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life; or
(ii) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Under La. R.S. 15:529.1(A)(1)(c)(ii) in 1997, defendant was properly sentenced to life imprisonment as a fourth-felony offender; however, in 2001, after the amendment, defendant's underlying and predicate crimes no longer subjected him to a life sentence. Under La. R.S. 15:529.1(A)(1)(c)(i) in 1997 and in 2001, defendant's sentence as a fourth-felony offender with his predicate convictions would have been for a determinate term not less than the longest prescribed for a first conviction, which would have been 99 years, the maximum sentence for armed robbery. See La. R.S. 14:64. Although defendant's sentence is within the applicable statutory range, defendant argues that this sentence is unconstitutionally excessive as applied to him and that he deserves to be sentenced to a lesser sentence based on Dorthey , supra .

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith , 01-2574 (La. 1/14/03), 839 So.2d 1, 4. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson , 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson , 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Id. at 656.

In Dorthey , 623 So.2d at 1280-81, the Louisiana Supreme Court recognized that a mandatory minimum sentence under the Habitual Offender Law may still be reviewed for constitutional excessiveness. In State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, 676, the Louisiana Supreme Court re-examined Dorthey and outlined the criteria a defendant must meet in order to show that a mandatory minimum sentence under the Habitual Offender Law is constitutionally excessive. In order to rebut the presumption that a mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is "exceptional, which ... means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case." Johnson , 709 So.2d at 676. A sentencing court should exercise its authority to declare excessive a mandatory minimum sentence only under rare circumstances. State v. Lindsey , 99-3256 (La. 10/17/00), 770 So.2d 339, 345, cert. denied , 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001).

In the instant case, pursuant to Esteen , supra , defendant was entitled to resentencing under the more lenient penalty provisions that were enacted by the legislature in 2001 La. Acts 403, which the legislature later declared in La. R.S. 15:308(B) apply retroactively. He was resentenced accordingly to a sentence within the applicable statutory range. We are not aware of any authority for allowing a defendant at an Esteen resentencing hearing to receive a sentence that is a downward departure from the more lenient provisions enacted in 2001, based on rehabilitation efforts and achievements while incarcerated.

Nevertheless, even if a downward departure under Dorthey is permissible at an Esteen resentencing hearing, defendant fails to show by clear and convincing evidence that his particular circumstances are an exception to the constitutional application of the mandatory sentence. Although defense counsel attached certificates to the motion to show that defendant had completed numerous programs while incarcerated, and defendant testified that he was a changed man, defendant did not show by clear and convincing evidence that a downward departure from the mandatory minimum 99-year sentence was justified.

Accordingly, we find that defendant's 99-year sentence as a fourth felony offender is not unconstitutionally excessive and will not be disturbed.

ERRORS PATENT

Because this is defendant's second appeal, this error patent review is limited to resentencing. The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). The following errors requiring corrective action were noted.

The transcript reflects that the trial judge ordered defendant's enhanced sentence to be served without the benefit of probation or suspension of sentence pursuant to La. R.S. 15:529.1(G) ; however, he did not order that the enhanced sentence be served without the benefit of parole as required by the underlying statute, La. R.S. 14:64. The State noted this error at the hearing. Because the underlying offense carried a disability against parole, the habitual offender sentence is likewise to be imposed without parole.

State v. Thomas , 15-592 (La. App. 5 Cir. 4/27/16), 190 So.3d 1258, n. 3, writ denied , 16-1054 (La. 5/12/17), 220 So.3d 747 ; State v. Tate , 99-1483 (La. 11/24/99), 747 So.2d 519, 520. Accordingly, we amend defendant's enhanced sentence to reflect that it is to be served without the benefit of parole.

Next, the resentencing transcript reveals that the trial court did not advise defendant of the time period to seek post-conviction relief under La. C.Cr.P. art. 930.8. It is well-settled law that if the trial court does not advise a defendant of the time period to seek post-conviction relief pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing defendant of the prescriptive period for post-conviction relief. See State v. Ducksworth , 17-35 (La. App. 5 Cir. 12/13/17), 234 So.3d 225, 237. Accordingly, we hereby advise defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Wiley , 16-645 (La. App. 5 Cir. 4/12/17), 216 So.3d 393.

Finally, the uniform commitment order (UCO) reflects that the original sentence was vacated on August 3, 2018; however, the transcript reflects that it was vacated on August 30, 2018. The transcript prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983). Thus, to maintain the accuracy and completeness of the record, we remand the matter for correction of the date in the UCO and further direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and the Department of Corrections' legal department. See State v. Payne , 17-12 (La. App. 5 Cir. 5/17/17), 220 So.3d 882, 888-889.

DECREE

For the foregoing reasons, we affirm defendant's habitual offender sentence of 99 years imprisonment, as amended, to be served without the benefit of probation, parole, or suspension of sentence. We also remand for correction of the uniform commitment order.

AFFIRMED, AS AMENDED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER

      In Dick , 951 So.2d at 132-133, the Louisiana Supreme Court held that La. R.S. 15:308 only created a remedy through the Louisiana Risk Review Panel, not through the courts. It stated that allowing a court to reduce an already-final sentence would be a usurpation of the executive's power of commutation and would therefore violate the constitutional separation of powers. Id.


source: Caselaw Access Project

author: GRAVOIS, J.

license: Public Domain

text:
    AMERICAN MULTI-CINEMA, INC. a/k/a AMC Theaters v. Newell NORMAND, Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson
    NO. 18-CA-488
    Court of Appeal of Louisiana, Fifth Circuit.
    April 03, 2019 Rehearing Denied April 22, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, AMERICAN MULTI-CINEMA, INC. A/K/A AMC THEATERS, Jaye A. Calhoun, New Orleans, Linda S. Akchin, William J. Kolarik, II, Baton Rouge
    COUNSEL FOR DEFENDANT/APPELLEE, NEWELL NORMAND SHERIFF AND EX-OFFICIO TAX COLLECTOR, JEFFERSON PARISH AND JEFFERSON PARISH BUREAU OF REVENUE AND TAXATION, Kenneth C. Fonte, Metairie
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.
   GRAVOIS, J.

Appellant, American Multi-Cinema, Inc., a/k/a AMC Theaters, appeals a judgment of a Louisiana Board of Tax Appeals judge which granted a motion for summary judgment filed by Newell Normand, Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson, and denied AMC's motion for summary judgment, thereby denying AMC's request for a refund of parish sales taxes for the taxing periods of June 1, 2011 through December 31, 2013 and January 1, 2014 through September 30, 2014 that AMC claims it overpaid to the Sheriff as the taxing authority. AMC claimed that its point-of-sale software mistakenly treated virtual rewards issued to members of its loyalty program, the "Stubs Rewards Program," as "taxable cash receipts," rather than as cash discounts or retailer-issued coupons, resulting in AMC allegedly remitting an overpayment of sales taxes to the Parish. Neither the Sheriff nor the Board of Tax Appeals judge agreed with AMC's position, both denying AMC's request for a refund, though each for different reasons. Upon de novo review, for the following reasons, we affirm the judgment of the Board of Tax Appeals judge granting the Sheriff's motion for summary judgment and denying AMC's motion for summary judgment, finding no error, omission, or mistake of fact in AMC's calculation, collection, and remittance of the sales taxes in question to the Sheriff, or in the Sheriff's determination of AMC's tax liability on its Stubs Rewards Program, for the taxing periods in question.

FACTS AND PROCEDURAL HISTORY

AMC Theaters is a business headquartered in Leawood, Kansas, operating movie theaters nationwide, with three locations in Jefferson Parish. Sales of goods and services (concessions and movie tickets) are subject to parish sales and use taxes pursuant to La. R.S. 47:301. Pertinent to this case, on April 1, 2011, AMC introduced a loyalty rewards program to its patrons called the "Stubs Rewards Program," which allowed those patrons who purchased a Stubs Rewards membership for $ 12 per year to accrue "virtual rewards" on the purchases of goods and services at AMC's theaters. For every $ 100 Stubs Rewards members spent on goods and services at AMC, they accrued a virtual reward of $ 10 that they could use towards the future purchase of goods and services at the theaters. During the taxing periods in question, the $ 10 virtual reward could be redeemed in any amount of the patron's choosing, with the unused portion of the reward, if any, staying in the member's virtual account to be used towards a future purchase.

For the taxing periods at issue, AMC used a "tax inclusive" pricing structure, in which the ticket or concession was sold for a posted or fixed sales price that included all applicable state and local sales taxes, as opposed to a "tax exclusive" pricing structure, in which the ticket or concession is sold for a posted or fixed sales price upon which the sales tax is then computed as an additional charge to be paid by the purchaser. This tax inclusive pricing structure was used for all transactions during the taxing periods at issue, whether or not the patron was a Stubs Rewards member. In a tax inclusive pricing structure, the sales tax to be remitted to the taxing authority is calculated by dividing the sales price by 1 plus the tax rate, and then subtracting that result from the sales price.

In 2011, not long after the introduction of its Stubs Rewards Program, AMC determined that its point-of-sale software system was treating the redeemed Stubs Rewards as taxable cash receipts, rather than as cash discounts or retailer issued coupons. In a transaction involving cash receipts, sales taxes are computed on the total amount of the sale prior to deducting the cash receipt (unadjusted sales price), and the customer pays the sales taxes computed on the unadjusted sales price. In a transaction involving a discount or retailer issued coupon, the discount or coupon amount is deducted from the sales price (adjusted sales price) and sales taxes are then computed and remitted on the adjusted sales price, in accordance with La. R.S. 47:301(13)(b) and the Louisiana Administrative Code, Title 61, Part I, § 4301(C) - Sales Price - (a)(viii)(b), infra , n. 14.

In its review, AMC determined that its treatment of the Stubs rewards was a "mistake or error" in its own software system, as per the sales tax "refund" statute, La. R.S. 47:337.77(B)(3). AMC claimed that its point-of-sale system had computed the sales taxes on the unadjusted sales prices, yet from its Stubs Rewards members it had collected only the sales taxes computed on the adjusted sales prices, which caused AMC to remit to the Parish, allegedly from its own funds, the excess sales taxes which were the difference between the taxes on the unadjusted sales prices and the taxes on the adjusted sales prices. Following this determination, on May 2, 2012, AMC engaged the accounting firm of Ernst & Young, LLP to audit its accounting and sales records to determine the amount of sales taxes it had allegedly erroneously remitted to the Sheriff. In May, 2015, based upon reports generated by Ernst & Young, AMC applied to Jefferson Parish for a refund of sales taxes in the total amount of $ 106,290.38 for the aforementioned taxing periods for AMC's Jefferson Parish locations.

On June 29, 2015, the Sheriff commenced an audit of AMC's three Jefferson Parish locations for sales/use taxes, for the audit period of June 1, 2011 through May 31, 2015. In audit reports dated November 2, 2015, the auditors disallowed AMC's tax refund claims, finding that AMC had properly treated the Stubs Rewards as taxable cash receipts, and recommended that the Sheriff deny the refund requests. The Sheriff denied the refund requests by letters to AMC dated December 23, 2015.

Thereafter, AMC timely filed an "Appeal of Disallowance of Tax Refunds" with the Louisiana Board of Tax Appeals. Following motion practice and discovery, the parties filed cross-motions for summary judgment. After a hearing on the cross-motions for summary judgment, the Board of Tax Appeals judge rendered a judgment on March 18, 2018 that granted the Sheriff's motion for summary judgment, denied AMC's motion for summary judgment, and denied AMC's Petition for Refund, thereby denying AMC's requested refunds. In undated written reasons for judgment, the judge provided that AMC's requests for refunds were denied on the basis that the evidence showed that AMC's patrons, not AMC, had paid the disputed amount of excess sales taxes, and thus no tax refunds were due to AMC. The judge's written reasons did not explicitly address the Sheriff's audit finding that the Stubs Rewards were taxable cash receipts. This timely appeal followed.

On appeal, AMC argues that there is no genuine issue of material fact, and as a matter of law, AMC's Stubs Rewards are cash discounts that reduce the taxable sales price and that the judge erred in concluding that AMC had not met its burden of proof that it was entitled to the tax refunds requested. AMC further argues that the Board of Tax Appeals judge erred in concluding that AMC's tax inclusive pricing model caused AMC's customers, rather than AMC, to make the erroneous overpayment of taxes. In this regard, AMC argues that: a) under a tax inclusive pricing model, the vendor (not the customer) accrues and pays the tax; and b) AMC's overpayments are not taxes paid by customers, but rather, are AMC's own funds. Finally, AMC argues that the judge erred in applying the tax principles incorrectly, or in applying the tax principles that have no application to a tax inclusive pricing model.

The Sheriff, in brief, argues that the evidence is clear that AMC's Stubs virtual reward is a taxable cash receipt, based upon AMC's actual treatment of the reward, both in its point-of-sale software and in its patrons' individual reward accounts, as well as in statements AMC made in its Stubs Rewards Program terms and conditions disseminated to members. The Sheriff further cites to evidence of actual transactions from the refund periods that its auditor considered, furnished to the Sheriff by AMC during discovery, that show the sales taxes were properly computed and that AMC's Stubs Rewards members rather than AMC paid the sales taxes AMC now claims should be refunded.

LAW AND ANALYSIS

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. King v. Illinois Nat. Ins. Co. , 08-1491 (La. 4/3/09), 9 So.3d 780, 784.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

Appellate courts review summary judgments de novo using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Pizani v. Progressive Ins. Co. , 98-225 (La. App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. A de novo review or an appeal de novo is an appeal in which the appellate court uses the trial court's record, but reviews the evidence and law without deference to the trial court's rulings. Wooley v. Lucksinger , 06-1140 (La. App. 1 Cir. 12/30/08), 14 So.3d 311, 352 ; Sarasino v. State through Department of Public Safety and Corrections , 16-408 (La. App. 5 Cir. 3/15/17), 215 So.3d 923, 927. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Muller v. Carrier Corp. , 07-770 (La. App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

Both parties agree that the substance of a transaction, not its form, controls for the purpose of classifying a transaction as taxable or not. J & B Pub. Co. of La., Inc. v. Secretary, La. Dept. Rev. & Taxation , 34,105 (La. App. 2 Cir. 12/15/00), 775 So.2d 1148.

On appeal, AMC first argues that there is no genuine issue of material fact, and as a matter of law, AMC's Stubs Rewards are cash discounts that reduce the taxable sales price and that the judge erred in concluding that AMC had not met its burden of proof that it was entitled to the tax refunds requested.

Upon review of the briefs and the record, we find that the germane issue in this case is whether the Sheriff properly categorized the Stubs virtual reward as a "taxable cash receipt," instead of a cash discount or retailer issued coupon, as per La. R.S. 47:301(13)(b) as claimed by AMC. If the Stubs virtual reward is a taxable cash receipt, then AMC is due no refund of sales taxes if sales taxes were properly computed and remitted upon the total purchase price.

La. R.S. 47:301(13)(a) defines the "sales price" that is subject to state and local sales taxes as "the total amount for which tangible personal property is sold ... provided that cash discounts allowed and taken on sales shall not be included." Louisiana Administrative Code, Title 61, Part I, § 4301(C) - Sales Price -(a)(viii) provides that "[i]n cases where all or a part of the purchase price of tangible personal property is paid to the selling dealer by the presentation of a coupon, the determination of the taxable sales price will depend on the type of coupon that is presented." La. R.S. 47:301(13) and the Louisiana Administrative Code distinguish between "manufacturer's coupons," which do not reduce the taxable purchase price, and the "retailer's own coupons," which do. Taxable cash receipts, however, are not specifically defined in Title 47, the Administrative Code, or case law. It is clear, however, that sales taxes are due to the taxing authorities on both tax inclusive and tax exclusive transactions, as the sales tax statute does not mention the different pricing structures. The difference between the two pricing structures is the mathematical formula used to determine the amount of taxes to be remitted.

The Sheriff, in denying AMC's request for the tax refunds, found in its November 2, 2015 audit reports that the Stubs virtual reward did not function as a discount or a retailer issued coupon, because the Stubs member could use the reward in any increment it wished, to-wit:

On April 1, 2011, AMC released a new rewards program to its customers, AMC Stubs. Customers pay a fee to join the AMC Stubs program for an entire year. For that initial fee, each AMC Stubs member receives a $ 10 AMC Stubs Reward for every $ 100 spent. These rewards credits can be used like cash to purchase tickets and concessions in the theater. A customer has the ability to redeem any amount of the reward.
Prior to October 2014, the taxpayer utilized fixed pricing with a tax inclusive system for the sales of admissions and concessions.
During the refund period, AMC customers paid the sales tax on the total, unadjusted purchase price of a ticket before the stubs credit was deducted. Because the reward could be used in any increment chosen by the member, the stubs credit is not the same as a discount .
(Emphasis added).

Jeanine Theriot, the audit manager with the Sheriff's Bureau of Revenue and Taxation who performed the audits of AMC's sales tax records for the Sheriff in 2015, examined transactions that AMC submitted to the Sheriff pursuant to the audits. Ms. Theriot's affidavit, submitted with the Sheriff's motion for summary judgment, explained the audit procedure and described the evidence she examined and which formed the basis for her recommendation that AMC's refund requests be denied. Ms. Theriot concluded that AMC's position that it had paid the disputed taxes was not supported by the published AMC Stubs Programs Terms and Conditions, which failed to use terms such as "coupon" or "discount."

Ms. Theriot also found that AMC's position that the Stubs virtual reward was a coupon or discount was inconsistent with its treatment of the Stubs virtual reward, as it allowed customers to apply the reward to a transaction in any amount they chose, and retain unused rewards for future use. These practices, she attested, were inconsistent with a typical coupon which was either for a fixed amount or percentage, and which also typically did not allow a customer to retain an unused balance thereof for future use.

Ms. Theriot also noted that the AMC Stubs Program Terms and Conditions provided that "Rewards and other benefits of the Program may be taxable to the Member where required by law," a provision she opined made sense only if a member was using his rewards as a form of payment rather than a discount or coupon, which reduces the tax base of the purchase price.

Ms. Theriot also explained in her affidavit that she examined actual Stubs rewards transactions submitted by AMC to the auditor from the taxing periods in question. In particular, her affidavit noted that she examined several Stubs transactions from July 14, 2014, involving both movie tickets and concessions. Upon examination of these transactions, she found that AMC did not apply virtual Rewards account credits to purchase transactions in a manner consistent with the proper use of discounts or retailer issued coupons. Ms. Theriot noted that AMC allowed Stubs Rewards members to use their virtual rewards to pay the entire tax inclusive purchase price, which would not have been allowed under state law if the rewards were discounts or retailer issued coupons. Ms. Theriot described three such actual sample transactions in her affidavit, finding that in each instance, AMC allowed a Stubs virtual reward to be redeemed in an amount that covered all or part of the portion of the purchase price attributable to the tax on the transaction, which was consistent with the treatment of the Stubs virtual reward as a form of payment that did not operate as a discount or retailer issued coupon.

AMC argues, however, that the Stubs program meets "accepted criteria" to qualify as a cash discount, citing in brief to a table it created from information apparently contained in tax publications from the states of Minnesota, Missouri, New York, and Washington. AMC also included this table in its summary judgment submission to the judge. While the information in these publications from other states might be related to the subject matter in dispute, they are not binding on the Sheriff, the Parish taxing authorities, or the courts of this State.

Accordingly, we find that the evidence submitted with the Sheriff's motion for summary judgment and the applicable law support the conclusion that the Stubs rewards were in fact, during the refund periods in question, applied correctly as a taxable cash receipt that did not reduce the sales price upon which sales tax was to be calculated and remitted.

AMC also argues that the Board of Tax Appeals judge erred in concluding that AMC's tax inclusive pricing model caused AMC's customers, rather than AMC, to make the erroneous overpayment of taxes. AMC argues that under a tax inclusive pricing model, the vendor (not the customer) accrues and pays the taxes, the vendor bearing the risk that its profit margin will be impacted by increases in either the tax rate or the vendor's cost of an item. Accordingly, AMC argues, AMC's "overpayments" are not taxes paid by customers, but rather, are AMC's own funds.

AMC's argument in brief on this issue contains no reference to any actual Stubs Rewards transaction occurring during the taxing periods, or one that was examined by the auditor (Ms. Theriot) from the taxing periods. This argument is also premised upon AMC's position that the Stubs virtual rewards was a discount or coupon, rather than a taxable cash receipt, as we have found above. Therefore, having found no error in the treatment of the Stubs virtual rewards, and therefore no overpayment in the amount of taxes calculated and remitted by AMC, we find that AMC is not entitled to relief in this regard.

Finally, AMC also argues that the Board of Tax Appeals judge erred in applying tax principles incorrectly, or in applying tax principles that have no application to a tax inclusive pricing model. AMC argues that the judge based his erroneous application of tax principles on a mistaken reliance on two cases involving tax exclusive pricing regimes or otherwise non-analogous principles, "plucking" these statements of law from those cases.

The statements AMC refers to are contained in the judge's written reasons for judgment. A judgment and reasons for judgment are two separate and distinct legal documents and appeals are taken from the judgment, not the written reasons for judgment. La. C.C.P. art. 1918. Ziegel v. S. Cent. Bell , 93-547 (La. App. 5 Cir. 3/16/94), 635 So.2d 314, 316. On appeal, the court of appeal reviews judgments and, where the court of appeal believes that the trial court reached the proper result, the judgment will be affirmed. Id. This Court is not bound to regard or apply principles that a lower court enunciates in written reasons for judgment, and thus, the judge's written reasons for judgment in this matter do not provide a basis for finding reversible error. Upon review, we find that the judge's result, the denial of AMC's refund claim, was correct because we find that the Stubs rewards were properly treated by both AMC's point-of-sale software and the Sheriff as a taxable cash receipt, and that sales taxes were properly remitted.

For the foregoing reasons, we find that AMC's arguments on appeal are without merit, and accordingly, affirm the judgment under review.

CONCLUSION

Finding upon de novo review that no genuine issues of material fact remain and that the Sheriff is entitled to judgment as a matter of law, we affirm the judgment of the Board of Tax Appeals judge granting the Sheriff's motion for summary judgment and denying AMC's motion for summary judgment, finding no error, omission, or mistake of fact in AMC's calculation, collection, and remittance of the sales taxes in question to the Sheriff, or in the Sheriff's determination of AMC's tax liability on its Stubs Rewards Program, for the taxing periods in question.

AFFIRMED

      At the hearing of this matter before the Board of Tax Appeals judge, the parties noted that Mr. Normand was no longer Sheriff, having been succeeded by Joseph Lopinto. However, the record fails to show that a formal substitution of parties was made.

      These locations are in Elmwood, Clearview Mall, and on the Westbank.

      Goods and services include movie tickets and concessions.

      Other benefits of Stubs Rewards membership include "upgrades" of certain concessions and the waiver of certain online ticketing fees. The Stubs virtual rewards expired 90 days from the date of issuance. Other restrictions of the Stubs Rewards Program are not pertinent to the issues in this case.

      AMC changed to a tax exclusive pricing structure on October 1, 2014, after the taxing periods at issue in this appeal.

      By way of example, assuming a $ 10 sales price with 8% tax, in a tax inclusive transaction, the sales tax to be remitted by AMC (divided between state and local taxing authorities) would be 74 cents ($ 10 - 10/1+.08 = 0.74 or 74 cents). The customer pays $ 10.00, with AMC retaining $ 9.26. In a tax exclusive transaction, 8% tax is collected on top of the $ 10 purchase price, resulting in a customer paying $ 10.80, with AMC retaining $ 10.00 and remitting sales taxes of 80 cents.

      La. R.S. 47:301(13)(b) provides:
      The term "sales price" shall not include any amount designated as a cash discount or a rebate by the vendor or manufacturer of any new vehicle subject to the motor vehicle license tax. For purposes of this Paragraph "rebate" means any amount offered by a vendor or manufacturer as a deduction from the listed retail price of the vehicle.

      La. R.S. 47:337.77(B)(3) provides:
      B. The collector shall make a refund of each overpayment where it is determined that:
      * * *
      (3) The overpayment was the result of an error, omission, or a mistake of fact of consequence to the determination of the tax liability, whether on the part of the taxpayer or the collector.

      Despite its claim that since 2011 it had believed it was mistakenly remitting too much sales taxes to the Parish, AMC did not pay the disputed taxes under protest as per La. R.S. 47:337.77 for either of the taxing periods at issue in this case.

      Occupational license tax and chain store tax were also included in this audit.

      The record contains three audit reports, one for each theater location in the Parish, as well as three refund denial letters.

      La. R.S. 47:1435 provides that the courts of appeal shall have exclusive jurisdiction to review the decisions or judgments of the Board of Tax Appeals.

      Louisiana Administrative Code, Title 61, Part I, § 4301(C) - Sales Price - (a)(viii)(a) provides:
      Manufacturer's coupons that the selling dealer accepts from the customer and can be redeemed through a manufacturer or coupon agent are not allowed as a reduction of the sales price. Because the retailer's total compensation includes the amount paid by the customer after presenting the coupon and the amount reimbursed by the manufacturer for the coupon's face value, the tax is based on the actual selling price of the item before the discount for the coupon.

      Louisiana Administrative Code, Title 61, Part I, § 4301(C) - Sales Price - (a)(viii)(b) provides:
      The retailer's own coupons, which the selling dealer is unable to redeem through another party, provides a cash discount that can be excluded from the sales price. The sales tax on a sale involving this type of coupon will be computed on the price paid after an allowance for the selling dealer's coupon discount.

      The audit reports, referenced in Ms. Theriot's affidavit and also submitted with the Sheriff's motion for summary judgment, noted that due to the volume of concession and admission sales during the refund periods, the parties agreed that the auditors would review four months of concession and admission sales to verify that the correct tax was collected and remitted to the Sheriff, and AMC's sales invoices for the months of August 2011, February 2012, May 2013, December 2014, and April 2015.

      AMC, in brief, objects to these transactions as inadmissible hearsay. However, the Sheriff points out that AMC provided these transactions to the Parish pursuant to the audits.

      It does not appear that AMC submitted into evidence to the judge the other states' publications themselves, but rather submitted only tabulated material AMC claimed was contained therein.

      However, the three audit reports (not Ms. Theriot's affidavit) stated that the auditors visited each of the three theaters in July and August of 2015, buying movie tickets and concessions with Ms. Theriot's Stubs Rewards membership. These transactions were not, however, from the refund period and were after AMC changed to a tax exclusive pricing structure. As such, we find that these "example transactions" noted in the audits were not relevant evidence upon which to determine the merits of this dispute.

      AMC claims in brief that the undisputed summary judgment evidence established that it never collected taxes from its customer. This is incorrect, however. Even in a tax inclusive pricing structure, AMC collected sales taxes from its customers: the amount charged by AMC and paid by the customer included sales taxes, which are then calculated according to the formula noted above and remitted by AMC to the Sheriff.


author: MOLAISON, J.

text:
    STATE of Louisiana v. Roy A. GARLAND
    NO. 18-KA-584
    Court of Appeal of Louisiana, Fifth Circuit.
    April 03, 2019 Rehearing Denied April 22, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA: Paul D. Connick, Jr., Terry M. Boudreaux, Andrea F. Long.
    COUNSEL FOR DEFENDANT/APPELLANT, ROY A. GARLAND: Gwendolyn K. Brown.
    Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and John J. Molaison, Jr.
   MOLAISON, J.

Defendant, Roy Garland, has appealed his conviction and judgment on one count of manslaughter and one count of possession of a firearm by a convicted felon following a guilty plea to both charges on June 23, 2014. We dismiss defendant's appeal upon finding that the motion for appeal was untimely filed.

Louisiana Code of Criminal Procedure Article 914, provides:

A. A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court.
B. The motion for an appeal must be made no later than:
(1) Thirty days after the rendition of the judgment or ruling from which the appeal is taken.
(2) Thirty days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed.

When a defendant fails to make a motion for appeal within the time provided in Article 914, he loses his right to obtain an appeal. State v. Martin , 12-74 (La. App. 5 Cir. 9/25/12), 101 So.3d 1004, 1005 (citing State v. Gray , 04-1272 (La. App. 5 Cir. 4/26/05), 902 So.2d 1060, 1061 ). Upon expiration of the thirty-day period, the conviction and sentence are final. State v. Frank , 2005-232 La. App. 3 Cir. 3/9/05, 898 So.2d 614, 615, 05-0232 (La. App. 3 Cir. 3/09/05). Here, defendant failed to file a motion for appeal by July 23, 2014-thirty days from the date of his convictions and sentences. Thus, defendant's only recourse was to seek reinstatement of his right to appeal in the trial court. State v. Counterman , 475 So.2d 336 (La. 1985). The appropriate procedural vehicle for a defendant to seek the exercise of his right to appeal, after the delay provided in La. C.Cr.P. art. 914 has expired, is a timely-filed application for post-conviction relief. Gray , 902 So.2d at 1061 (citation omitted).

However, La. C.Cr.P. art. 930.8 provides that an application for post-conviction relief, including a request for out-of-time appeal, must be filed within two years from the date a defendant's conviction and sentence become final, which in this case would have been on or before July 23, 2016. Here, defendant failed to file such an APCR, thus, his convictions and sentences became final on July 23, 2016. See State v. Lewis , 17-663 (La. App. 5 Cir. 4/11/18), 244 So.3d 845, 847 (citing State v. Williams , 16-32 (La. App. 5 Cir. 8/24/16), 199 So.3d 1205, 1209 ). Thus, this Court lacks jurisdiction to review any alleged errors now raised on appeal regarding defendant's underlying convictions and sentences imposed on June 23, 2014. See Lewis , supra .

Jurisdiction regarding defendant's alleged "re-sentencing" on September 7, 2017

On July 27, 2017, approximately one year after defendant's convictions and sentences became final, defendant filed a pro se motion to rectify illegal sentence, correctly asserting that the trial court improperly restricted parole as to his forty-year sentence on his manslaughter conviction. See La. R.S. 14:31(B). Thus, in open court at a hearing held on September 7, 2017, the trial court corrected defendant's sentence on count one only by deleting the benefit restrictions previously imposed at the time of his guilty plea and sentencing on June 23, 2014.

On June 26, 2018, defendant filed an APCR claiming the trial court erred in failing to appoint counsel to represent him at his "re-sentencing" held on September 7, 2017, and asserted that the trial court further failed to vacate his original sentence prior to imposing his "new sentence." On July 25, 2018, the trial court granted defendant an out-of-time appeal, noting in the procedural recitation of the court's order that on September 7, 2017, it had granted defendant's pro se motion to rectify illegal sentence, correcting defendant's illegal sentence "as it pertained to parole benefits on the manslaughter charge."

If a sentence is illegal, then the illegality can be corrected by any court at any time under La. C.Cr.P. art. 882. Here, defendant asserts that he was "re-sentenced" on September 7, 2017; however, the ministerial correction that occurred in this case to delete the restriction of benefits on count one does not rise to the level to warrant a description as a "re-sentencing." This correction of defendant's sentence

did not involve the exercise of any discretion by the trial court, and thus there is no need for appeal or other review of a decision favorable to defendant by the trial court. Defendant had no right to counsel, and even his presence in court when the correction was made was unnecessary. The same correction could have been made merely on the pleadings.

State v. Littleton , 43,609 (La. App. 2 Cir. 5/7/08), 982 So.2d 978, 980. See also , State v. Brumfield , 13-2390 (La. 11/14/14), 152 So.3d 870, reh'g denied , 13-2390 (La. 4/2/15), 162 So.3d 393.

In the instant matter, the trial court cured a non-discretionary, ministerial error on a determinate sentence. Therefore, the trial court's correction of defendant's manslaughter sentence to delete the restriction of benefits is not considered a resentencing that is accompanied by the right to appeal. Accordingly, defendant has no right to his present appeal from the ministerial correction of his sentence which occurred on September 7, 2017.

Decree

Based on the foregoing, this appeal is dismissed.

APPEAL DISMISSED.


author: CHEHARDY, C.J.

text:
    STATE of Louisiana v. Terry ENGLAND
    NO. 18-KA-623
    Court of Appeal of Louisiana, Fifth Circuit.
    April 03, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Thomas J. Butler, Joshua K. Vanderhooft
    COUNSEL FOR DEFENDANT/APPELLANT, TERRY ENGLAND, Terry England, Katherine M. Franks
    Panel composed of Judges Susan M. Chehardy, Hans J. Liljeberg, and John J. Molaison, Jr.
   CHEHARDY, C.J.

In this appeal appointed counsel for defendant challenges the trial court's acceptance of defendant's guilty pleas without further inquiry following defendant's initial reservation to pleading guilty to the charges filed against him. Further, defendant has filed a pro se supplemental brief arguing the ineffectiveness of his trial counsel resulting in his being forced to plead guilty. For the following reasons, we affirm defendant's convictions and sentences, and remand the matter for correction of the Uniform Commitment Orders.

Factual Background and Procedural History

In this case, defendant's convictions resulted from guilty pleas so the facts surrounding the offenses were gleaned from the bill of information. Here, the record reflects that, on or about July 19, 2017, defendant knowingly or intentionally possessed heroin with the intent to distribute in violation of La. R.S. 40:966(A), and knowingly or intentionally possessed fentanyl with the intent to distribute in violation of La. R.S. 40:967(A).

On August 29, 2017, the Jefferson Parish District Attorney filed a bill of information charging defendant, Terry England, with one count of possession with intent to distribute heroin in violation of La. R.S. 40:966(A) (count 1), and one count of possession with the intent to distribute fentanyl in violation of La. R.S. 40:967(A) (count 2). At his arraignment held on September 1, 2017, defendant pled not guilty.

Omnibus motions, which included motions to suppress evidence and a confession, were filed by defendant. The trial court heard and denied the motions to suppress on November 9, 2017.

On December 5, 2017, defendant withdrew his not guilty pleas and, after executing a waiver of constitutional rights form, which was signed by defendant, defense counsel, and the trial judge, entered pleas of guilty as charged on both counts. After the trial court accepted the pleas, defendant was sentenced in accordance with the plea agreement. Specifically, the trial court sentenced defendant to fifteen years imprisonment at hard labor on count 1, with the first ten years to be served without benefit of probation, parole, or suspension of sentence. As to count 2, defendant was sentenced to ten years imprisonment at hard labor. The trial court also ordered the sentences to run concurrently with each other with defendant receiving credit for time served. The trial court assessed fees for defendant to pay to the Indigent Defender Board, the Jefferson Parish Sheriff's Office, and the Jefferson Parish Sheriff's Office crime lab. Additionally, the trial court recommended defendant for participation in any and all self-help programs available to him during his incarceration.

On May 3, 2018, defendant filed an application for post-conviction relief, asserting ineffective assistance of his trial counsel. On May 7, 2018, the trial court dismissed defendant's application without prejudice and granted him an out-of-time appeal. This appeal follows.

Law and Argument

On appeal, defendant assigns one counseled assignment of error and one pro se assignment of error. In his counseled assignment of error, defendant argues the trial court erred in accepting his guilty pleas without further inquiry after he professed his innocence during the plea colloquy. Additionally, defendant argues the record does not demonstrate that his guilty pleas were knowingly and voluntary entered based on assertions he made "in his application for post-conviction relief and in subsequent correspondence that his guilty plea was not a voluntary one." Defendant contends the trial court should have inquired further into the voluntariness of his pleas and, at the very least, asked defendant whether his "decision to plead guilty was in recognition that it was in his best interest to do so considering the evidence against him" in accordance with North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Defendant does not move to have this Court set aside his guilty pleas; instead, defendant requests that the matter be remanded for "further inquiry."

The State argues that although defendant initially denied possession of the narcotics during the plea colloquy, defendant subsequently acknowledged his guilt and voluntarily continued with the guilty plea proceeding. Moreover, the State argues that since defendant acknowledged to the court that he had, in fact, committed the crimes to which he was pleading guilty, there was no need for the trial court to inquire further as to the voluntariness of defendant's guilty pleas. We agree.

Under both state and federal jurisprudence, it is well settled that an unqualified plea of guilty waives all non-jurisdictional defects in the proceedings leading up to the guilty plea. State v. Crosby , 338 So.2d 584, 588 (La. 1976) ; State v. Gumms , 17-566 (La. App. 5 Cir. 3/14/18), 243 So.3d 725, 730. Moreover, such a plea waives any right a defendant had to question the merits of the State's case and the factual basis underlying the conviction. State v. Hayes , 15-141 (La. App. 5 Cir. 8/25/15), 173 So.3d 1222, 1224, writ denied , 15-1789 (La. 9/23/16), 200 So.3d 364. A guilty plea is not considered valid unless it is freely and voluntarily made. State v. Payton , 04-1024 (La. App. 5 Cir. 1/11/05), 894 So.2d 362, 365. Under Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the decision to plead guilty will not be considered voluntary unless, at the very least, the defendant has been advised of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. State v. Shelton , 09-713 (La. App. 5 Cir. 3/9/10), 39 So.3d 601, 602, writ denied , 10-839 (La. 11/5/10), 50 So.3d 812. The defendant's waiver of these rights must be expressly and knowingly made. State v. Williams , 384 So.2d 779, 780 (La. 1980). Moreover, this waiver must be on the record, and the record must unequivocally show that the defendant's waiver was free and voluntary. State v. Ursin , 98-435 (La. App. 5 Cir. 10/28/98), 720 So.2d 1248, 1249. The Louisiana Supreme Court has consistently stated that the knowing and intelligent nature of a defendant's waiver of rights " 'depends upon the circumstances of each case.' " State v. Filer , 00-0073 (La. 6/30/00), 762 So.2d 1080 (per curiam), quoting State v. Strain , 585 So.2d 540, 544 n. 7 (La. 1991).

Also, once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

Here, the record reveals that at the commencement of the guilty plea colloquy, trial counsel advised the court that defendant wished to withdraw his pleas of not guilty and plead guilty as charged in the bill of information. Trial counsel further advised that he had reviewed the waiver of rights form with defendant, and that defendant had initialed and signed the form.

On the waiver of rights form and during the colloquy with the trial judge, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. Defendant signed the waiver of rights form, indicating that he understood he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood that he was waiving these rights. Defendant advised that he was forty-five years old and had completed the tenth grade in school. Further, defendant expressed his understanding that he was pleading guilty to possession with intent to distribute heroin and to possession with intent to distribute fentanyl, and he was advised of the statutory definitions of those offenses.

Following a discussion during the colloquy regarding the minimum and maximum penalties for the charged offenses, defendant was asked by the trial judge to explain what occurred on July 19, 2017 that was causing him to plead guilty to possession with intent to distribute heroin and possession with intent to distribute fentanyl. At this juncture, defendant claimed that a "certain person ... hid some stuff in [his] truck ..." and attested that he "didn't have these drugs." In response to these assertions, the trial judge stated that if "[defendant] can't admit to a factual basis ...," she could not accept his guilty pleas and the matter would proceed to trial:

BY THE COURT:
Q. I am asking you what happened. I read to you the statute. You have to knowingly, intentionally possess with the intent to distribute heroin. Did you knowingly and intentionally possess heroin with the intent to distribute it?
A. No, ma'am.
THE COURT:
Then we have to go to trial.
THE WITNESS:
Yes, ma'am.
THE COURT:
I cannot accept the plea.

After reminding the trial court that defendant had previously given a video-taped statement confessing to his involvement in selling the drugs, and that defendant was acting "against [his] advice, the facts and law," defense counsel requested a recess to consult with defendant, his client. Following a brief interruption in the proceedings, defendant and his counsel returned to the courtroom at which time the following exchange took place:

MR. REGAN:
Your Honor, I'm back here in the Court's presence with Mr. Terry England. I've had a chance to answer some additional questions from Mr. England at this point and the defendant wishes to plead guilty, take responsibility for the drugs that were in the car and take responsibility for the fact that he confessed to it on video tape when he was taken down to Maple Street, and would like the Court please [sic] to take his guilty plea pursuant to the plea agreement.
BY THE COURT:
Q. Mr. England, remember you are still under oath.
A. Yes, ma'am.
Q. And I guess I'm going to go about this a different way. Mr. England, did you confess to possessing heroin and fentanyl with the intent to distribute it when you were taken into custody at the Detective Bureau?
A. Yes, ma'am.

Thereafter, the guilty plea colloquy resumed:

Q. Mr. England, do you understand as to the heroin, the maximum sentence I can impose is fifty years at hard labor in the Department of Corrections with the first ten being without benefit of probation, parole or suspension of sentence?
A. Yes, ma'am.
Q. You understand that as to Count 2, the possession with intent to distribute fentanyl, the maximum sentence the Court can impose is ten years at hard labor in the Department of Corrections?
A. Yes, ma'am.
Q. You understand the minimum sentence the Court can impose as to Count 1 is ten years without benefit of probation, parole or suspension of sentence?
A. Yes, ma'am.
Q. You understand the plea of guilty is your decision and no one can force you to so plead? You understand that to plead guilty is your voluntary act and must be free from any vice or defect which would render your ability to plead guilty inadequate. Has anyone used any force, intimidation, coercion or promise of reward to either you or any member of your family for the purpose of making or forcing you to plead guilty?
A. No, ma'am.
Q. Have you been advised by counsel that in the event I accept the plea of guilty that you would be sentenced as follows: The Court would sentence you to fifteen years at hard labor in the Department of Corrections on Count 1 and the first ten years would be served without benefit of probation, parole or suspension of sentence. As to Count 2, you would be sentenced to ten years in the Department of Corrections. Both Count 1 and Count 2 would run concurrent with each other and you would receive credit for time served and you would be responsible for paying certain fees; do you understand that, sir?
A. Yes, ma'am?
Q. Sir, you have a right to a trial by jury which jury may find you guilty as charged, guilty of a lesser crime or not guilty. You have the right to hire an attorney of your choice to defend you at trial. If you cannot afford an attorney, one would be appointed for you which would not cost you anything. By entering the plea of guilty you are waiving or giving up these rights. Do you understand that?
A. Yes, ma'am.
Q. At any jury trial you have the right to confront your accusers and cross-examine the witnesses against you and compel testimony on your behalf from your witnesses. By entering the plea of guilty you are waiving or giving up these rights; do you understand that?
A. Yes, ma'am.
Q. If you were to go on trial, in the event of a conviction, if a jury would find you guilty, you would have a right to an appeal. In the event of an appeal if you could not afford an attorney one would be appointed for you which would not cost you anything. By entering the plea of guilty you are waiving or giving up these rights; do you understand that?
A. Yes, ma'am.
Q. If you plead guilty and the Court accepts your plea, you do not have the right to assert any allegation or defects such as an illegal arrest, illegal search and seizure, illegal confession, illegal line-up or the fact that the State might not be able to prove said charge or that a jury would find you not guilty. Do you understand that by pleading guilty you are waiving or giving up these rights?
A. Yes, ma'am.
Q. You understand you have a right to waive a trial by jury and be tried by the court alone; do you understand by pleading guilty you are waiving or giving up these rights?
A. Yes, ma'am.
Q. You understand that by pleading guilty you are telling the Court that you have in fact committed the crime to which you are pleading guilty; is that correct?
A. Yes, ma'am.
THE COURT:
Mr. Regan, as the attorney for the defendant you were present during the foregoing colloquy between the defendant and the trial judge at the time of the defendant's plea of guilty. You've informed the defendant of his rights, particularly the nature of the crime to which he is pleading guilty the maximum sentence the court can impose under the law and the fact that the defendant by entering the plea of guilty is waiving his right to a trial by jury or by the court alone, his right to confront his accusers and cross-examine the witnesses against him, his right against self-incrimination and lastly his only appeal is for a review of jurisdictional defects, and you are entirely satisfied the defendant knowingly, willingly, intelligently and voluntarily entered the plea of guilty knowing all of the consequences; is that correct, Mr. Regan?
MR. REGAN:
It is, Your Honor.
THE COURT:
Is that evidenced by your signature at the top of the page?
MR. REGAN:
Yes, Your Honor.
BY THE COURT:
Q. Mr. England, as the defendant in this case you acknowledge that the foregoing has been read to you, that your attorney and the trial judge have explained the nature of the crime to which you are pleading guilty, all of your rights to you and what rights you are waiving or giving up, and you've been given every opportunity by the trial judge to ask questions in open court about anything you do not understand and about all the consequences regarding your plea of guilty. You are completely satisfied with the explanation of your attorney and the judge. You further acknowledge that your act of pleading guilty is a knowing, intelligent, free and voluntary act on your part and that no one can force you to plead guilty. You know that by pleading guilty it's more than a confession, it's also a conviction. Nothing remains except for the judge to give judgment for sentencing and acknowledging that you are now ready for sentencing; is that correct, Mr. England?
A. Yes, ma'am.
Q. Is that evidenced by your signature in the middle of the page?
A. Yes, ma'am.
BY THE COURT:
I as the trial judge have entered the foregoing colloquy with the defendant; I'm entirely satisfied the defendant was aware of the nature of the crime to which he has pleaded guilty, the defendant did in fact commit said crime and understands the consequences of a plea of guilty, and has made a knowing, intelligent, free and voluntary act of pleading to the above-mentioned crime and there is a factual basis for the acceptance of the plea.
I therefore accept defendant's plea of guilty.
[Emphasis supplied.]

A review of the record reveals no constitutional infirmity in defendant's guilty pleas. The record reflects that defendant acknowledged reviewing the waiver of rights form with his attorney. The record also shows that defendant was aware he was charged with and pleading guilty to two drug charges. Further, in the waiver of rights form and by the trial judge during the colloquy, defendant was advised of his right to a jury trial, right to confrontation, and his privilege against self-incrimination as required by Boykin v. Alabama, supra. Defendant signed the waiver of rights form, indicating that he understood that he was waiving these rights by pleading guilty. During the colloquy with the trial judge, defendant also indicated that he understood those rights.

During his guilty plea colloquy and in his waiver of rights form, defendant indicated that he had not been forced, coerced, or threatened into entering into guilty pleas. Defendant was informed during the colloquy of the minimum and maximum sentences and of the sentences that would be imposed on each count if his guilty pleas were accepted. After the lengthy colloquy with defendant, the trial court accepted his guilty pleas as knowingly, intelligently, freely, and voluntarily made.

Our review of the record, particularly the transcript of the guilty plea colloquy as set forth in full above, convinces us that, despite defendant's initial reservations to pleading guilty to the charged offenses, based upon his responses to further questioning by the trial court and without referencing his prior profession of innocence, defendant acknowledged that he did, in fact, commit the offenses for which he was charged. Further, we find that defendant knowingly, intelligently and voluntarily entered unqualified guilty pleas-nowhere in the transcript is it specified that defendant was making a qualified plea under Alford . Consequently, no further inquiry by the trial court was necessary.

We find no error in the trial court's acceptance of defendant's guilty pleas that would warrant remand for further inquiry into defendant's voluntariness in entering those pleas. This assignment of error lacks merit.

Pro Se Assignment of Error

In his pro se assignment of error, defendant contends his counsel was ineffective for failing to call a key witness to testify at the suppression hearing and for failing to present exculpatory evidence to the court, which testimony and evidence would have shown that someone other than defendant was responsible for placing the drugs in defendant's vehicle without defendant's knowledge. Defendant argues that his counsel's ineffectiveness prejudiced defendant's defense and forced defendant to plead guilty to a crime he did not commit in order to avoid the risk of an unfair trial. Specifically, defendant claims that because of his counsel's failure to call the key witness to testify, for his advising the key witness to leave court on the day of the suppression hearing, and for his failure to present the alleged exculpatory evidence (i.e. , an affidavit and deposition by the key witness), he feared that he was being "rail-roaded" by his counsel's incompetence and, thus, he pled guilty in order to avoid facing sixty years imprisonment. Additionally, defendant avers that despite his professed innocence, the trial court nonetheless accepted his guilty pleas. For these reasons, defendant seeks to have his convictions set aside.

The Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution safeguard a defendant's right to effective assistance of counsel. According to the United States Supreme Court's opinion in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant asserting an ineffective assistance claim must show: (1) that defense counsel's performance was deficient; and (2) that the deficiency prejudiced the defendant. The defendant has the burden of showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.

Generally, an ineffective assistance of counsel claim is most appropriately addressed through an application for post-conviction relief filed in the district court, where a full evidentiary hearing can be conducted, if necessary, rather than by direct appeal. State v. Taylor , 04-346 (La. App. 5 Cir. 10/26/04), 887 So.2d 589, 595. If, however, the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised in 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 La. C.C.P. arts. 924 -930.8. Id.

In the present case, although the record contains defendant's application for post-conviction relief, we cannot say that the record before us is sufficient to fully explore defendant's claim for ineffective assistance of counsel. For example, to support his claim defendant relies on certain evidence not currently in the record that could be presented at an evidentiary hearing. See State v. Hartshorn , 09-47 (La. App. 5 Cir. 11/10/09), 25 So.3d 172, writ denied , 09-2654 (La. 6/4/10), 38 So.3d 298. Based upon the limited record before us, we find that defendant's ineffective assistance of counsel claim would be more appropriately raised in an application for post-conviction relief in the trial court, where a full evidentiary hearing can be conducted, if necessary. State v. Thornton , 17-470 (La. App. 5 Cir. 3/14/18), 242 So.3d 799, 805.

Errors Patent

As is our routine practice, we have reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990), and found errors requiring correction.

First, the trial court improperly restricted the benefit of parole for defendant's conviction of possession with intent to distribute heroin. On the date of the offense, July 19, 2017, La. R.S. 40:966(B)(4)(a) provided that first offense with intent to distribute heroin was punishable by a term of imprisonment at hard labor for not less than ten nor more than fifty years, at least ten years of which should be served without benefit of probation or suspension of sentence, and may, in addition, be required to pay a fine of not more than fifty thousand dollars. Thus, at the time of the committed offense, the applicable statute only provided for a restriction of probation and suspension of sentence for at least ten years.

In cases in which a sentencing error by the trial court does not involve the omission of a restrictive term specified by the legislature as part of the sentence, but the imposition of limits beyond what the legislature has authorized in the sentencing statute, this Court will correct the sentence on its own authority under La. C.Cr.P. art. 882 to correct an illegal sentence "at any time." State v. Gayden , 14-813 (La. App. 5 Cir. 2/11/15), 168 So.3d 766, 768. Accordingly, we amend defendant's sentence on count 1 to delete the prohibition of parole eligibility and remand the matter for the trial court to correct the Uniform Commitment Order ("UCO") to reflect that defendant's sentence has no restriction on the benefit of parole. Further, we direct the Clerk of Court for the 24th Judicial District Court to transmit the corrected UCO to the appropriate authorities and the Department of Corrections' ("DOC") legal department. See State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 (citing La. C.Cr.P. art. 892(B)(2) ).

Second, according to the transcript, after sentencing, the trial judge recommended that defendant be allowed to participate in any and all available self-help programs offered at the Department of Corrections' facility in which he was incarcerated; however, the UCO merely reflects that defendant was recommended for substance abuse disorder treatment screening. According to State v. Lynch , 441 So.2d 732, 734 (La. 1983), if "there is a discrepancy between the minutes and the transcript, the transcript must prevail." This Court has previously remanded a case for correction of UCOs in an errors patent review. See State v. Lyons , 13-564 (La. App. 5 Cir. 1/31/14), 134 So.3d 36, writ denied , 14-0481 (La. 11/7/14), 152 So.3d 170. Accordingly, we remand this matter to the trial court with instructions to correct the UCO to reflect that defendant was more generally recommended for participation in any and all self-help programs available to him in the facility in which he is incarcerated. We also direct the Clerk of Court for the 24th Judicial District Court to transmit the corrected UCO to the appropriate authorities in charge of the facility in which defendant has been incarcerated and the DOC's legal department.

DECREE

For the foregoing reasons, we affirm defendant's convictions and sentences. Further, we remand for correction of the UCO as set forth above.

AFFIRMED; REMANDED FOR CORRECTION OF THE UNIFORM COMMITMENT ORDER

      Although defendant filed several omnibus motions that were not ruled upon, the motions are considered waived when a defendant does not object to the trial court's failure to hear or rule on a pre-trial motion prior to pleading guilty. See State v. Kelly , 17-221 (La. App. 5 Cir. 12/29/17), 237 So.3d 1226, 1232, writ denied , 18-0153 (La. 11/5/18), 255 So.3d 1051. Further, as there were no rulings, none were preserved for appeal under the holding in State v. Crosby , 338 So.2d 584 (La. 1976).

      In North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the United States Supreme Court determined that the fact that a defendant "would not have pleaded except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice, especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant's advantage." Id. , 400 U.S. at 31, 91 S.Ct. 160. Thereafter, for a "best interests" or Alford plea, "[d]ue process requires a judicial finding of a significant factual basis for a defendant's guilty plea." Id. See State v. Autin , 09-995 (La. App. 5 Cir. 4/27/10), 40 So.3d 193, 196-197, writ denied , 10-1154 (La. 12/10/10), 51 So.3d 725.

      The video-taped statement was later admitted into evidence without objection and is a part of the record on appeal.

      At the time defendant committed the offense, La. R.S. 40:967(B)(5) did not provide a minimum penalty for a conviction of possession with intent to distribute fentanyl.

      Defendant will have to satisfy the requirements of La. C.Cr.P. art. 924, et seq ., to receive a hearing.

      The legislature amended La. R.S. 40:966 twice in 2017. La. Acts 2017, No. 319, § 1, effective June 22, 2017, added subsection 1 regarding immunity from prosecution. La. Acts 2017, No. 281, §§ 2, 3, effective August 1, 2017 (subsequent to the date defendant committed the offense), amended the penalty for possession with intent to distribute heroin to hard labor for not less than five years nor more than forty years with a possible fine of not more than fifty thousand dollars.