author: EDWARDS, JUDGE PRO TEMPORE, J.

text:
    STATE of Louisiana v. Dexter ALLEN
    NO. 17-KA-685
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLANT, DEXTER ALLEN, Prentice L. White
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Marion F. Edwards, Judge Pro Tempore
   EDWARDS, JUDGE PRO TEMPORE, J.

Defendant, Dexter Allen, appeals his convictions and sentences for two counts of second degree murder and 21 counts of simple burglary. For the reasons that follow, defendant's convictions are affirmed, and his life sentences for his second degree murder convictions, without benefit of parole, probation, or suspension of sentence, are affirmed. We remand this matter to the district court for the imposition of determinate sentences for defendant's simple burglary convictions.

PROCEDURAL HISTORY

On July 30, 2015, a Jefferson Parish Grand Jury indicted defendant, Dexter Allen, on two counts of second degree murder (counts one and two), violations of La. R.S. 14:30.1, and 21 counts of simple burglary (counts five through 23), in violation of La. R.S. 14:62. Defendant pled not guilty at his arraignment on September 11, 2015. On October 11, 2016, the matter proceeded to a jury trial, at the conclusion of which on October 17, 2016, defendant was found guilty as charged on all counts. On November 16, 2016, defendant filed a Motion For Funds To Conduct Mitigation Investigation, for the purpose of hiring a juvenile mitigation specialist ahead of defendant's constitutionally mandated sentencing hearing under Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). After a hearing on December 5, 2016, the trial court denied defendant's request for funding. Defendant thereafter requested a continuance of his sentencing, which the trial court granted on March 6, 2017. On March 26, 2017, defendant filed a second motion for funds to hire an expert to "develop evidence in mitigation" in advance of his Miller hearing. On April 5, 2017, the trial court denied defendant's second request for funds, and he filed a writ to this Court seeking supervisory review of that ruling, which was denied. State v. Allen , 17-199 (La. App. 5 Cir. 4/18/17) (unpublished writ), writ denied , 17-0640 (La. 6/29/17), 222 So.3d 48. On April 20, 2017, defendant filed a motion for new trial, which was denied on that same date. Also on that date, defendant's Miller hearing was held, and the trial court continued sentencing.

On April 21, 2017, the trial court sentenced defendant to life in prison without benefit of parole, probation, or suspension of sentence for counts one and two, and two years on each count, five through 23, with each two-year sentence to run concurrently. Defendant's motion for reconsideration of sentence was denied following a hearing on August 22, 2017. This appeal follows.

FACTS

On April 22, 2015, officers from the Jefferson Parish Sheriff's Office were dispatched to 3717 Clifford Drive in Metairie in response to a 9-1-1 call made by Elizabeth Branley Pence reporting that she had found her husband, David Pence, and her son, Nicholas Pence, shot dead in their home. Sergeant David Roddy was the first officer on the scene; he entered the home through the open glass storm door on the side of the house. He described that it was "foggy" inside the house and immediately noticed the smell of gunpowder. He found two deceased victims with apparent gunshot wounds, David Pence seated in a chair and Nicholas Pence on the ground. After he and other officers cleared the house-making sure the suspect was no longer present-he returned to the living room and spoke with Ms. Pence, who was covered in blood as a result of performing C.P.R. on her son. Officers from Jefferson Parish Sheriff's Office Crime Scene spent several hours recovering physical evidence from the scene, notably, four 12-gauge shotgun shells as well as lead-like projectiles; a gun was not recovered.

While on the scene that night, officers canvassed the neighborhood to speak with people to see if anyone heard or saw anything. As a result, they became aware of several car burglaries in the area. Additionally, officers discovered that one of the vehicles at the Pence home, a black Mustang, had also been burglarized. Deputy Christie Babineaux was one such officer canvassing the neighborhood that evening, and while driving on Ridgeway Drive, a neighboring street, she observed an Audi with its trunk open. She spoke with the owner of the vehicle, Shawn Suggs, who indicated that nothing appeared to be missing, but noticed a visible palm print on the driver's side window. Captain Chad Pitfield, who was initially at the crime scene at the Pence home, went to the scene on Ridgeway and was able to successfully lift the print from the Audi. Officers also were able to recover surveillance video from homes in the neighborhood. Detective William Roniger, the lead detective in the homicide case, was informed of the series of vehicle burglaries in the neighborhood surrounding the Pence home and thought the murders and the burglaries were related.

Surveillance video from John Hennessey's home at 3625 Clifford Drive depicts a black male approaching his wife's Porsche Cayenne parked in the driveway, lifting the vehicle's door handle, and then walking away. Later on in the video, a set of feet, that came from the direction of where the subject walked, returned to the view of the camera. At a later point, the video depicts something falling to the ground where the feet were. Later, a purse belonging to one of the victims of the car burglaries was found in that location. The feet come back into camera view later from the direction of the Pence home.

Detective Roniger spoke with Christopher Meyer and Alex Underwood, friends of Nicholas Pence, who were at the Pence house earlier the evening of April 22, 2015. Mr. Meyer and Mr. Underwood were at the Pence home with Nicholas, hanging out in the garage with three other friends after their flag football game; they indicated they left around 11:40 p.m. Mr. Underwood testified that as he was leaving the Pence home, he noticed a white Toyota Highlander coming down the street with no headlights on that "pulled off to the opposite side of the street for a brief moment," then stopped and started traveling back down the street, but then changed directions. Further depicted in the surveillance video was a white Toyota Highlander with no headlights on, driving toward the Pence home around the time of the murders. Other surveillance video from Kathryn Fitzpatrick's home at 4000 Ridgeway Drive depicts the same white Toyota Highlander traveling southbound on Ridgeway Drive toward West Esplanade Avenue, which is near the on-ramp to I-10 East at Bonnabel Boulevard. Detective Roniger testified regarding the likely path of travel from the Pence home to the I-10 East ramp at Bonnabel as the Automated License Plate Recognition System (A.L.P.R.) captured a Toyota Highlander, bearing the license plate YCB-052, getting on I-10 East at 11:56 p.m. After getting this information, he investigated the vehicle and discovered that it had been reported stolen in a carjacking by the owner, Shalacia Leflore, earlier on April 22, 2015. Detective Roniger also discovered that the fingerprints that were taken from the Audi on Ridgeway Avenue belonged to a person named Haraquon DeGruy.

Based on this information, he contacted Detective Pat DiGiovanni to employ the U.S. Marshals Task Force to locate Haraquon DeGruy as well as the Toyota Highlander. Detective DiGiovanni eventually located Ms. DeGruy at an apartment complex in New Orleans East, as well as the Toyota Highlander, which was found parked nearby. Detective DiGiovanni decided to surveil the Highlander as they did not know the number of the apartment in which Ms. DeGruy was located. Ultimately, during the day on April 24, 2015, officers who were monitoring the Highlander observed it on the move. Officers followed the vehicle, which was traveling at an extremely low rate of speed, which indicated to the officers that the person in the Highlander knew he was being followed.

The officers decide to "trap" the Highlander, that is, position their vehicles in front and behind the subject vehicle to prevent it from moving. Officers in the vehicle behind the Highlander activated its lights and sirens, and officers, who were wearing the U.S. Marshal tactical vest, exited the vehicles, announced their presence as police, and approached the Highlander with guns drawn. As they approached the Highlander, the vehicle turned right to escape the trap, nearly striking Detective Harley Smith, who jumped out of its path in order not to be hit. A high-speed chase of the Highlander ensued, which ended up on the I-10 Highrise Bridge, after the Highlander struck another vehicle. The driver of the Highlander, who was later identified as defendant, Dexter Allen, exited the vehicle and began to flee on foot. After an extensive foot chase, officers ultimately found defendant hiding in the Industrial Canal, and he was taken into custody. The passenger of the vehicle, Haraquon DeGruy, was also apprehended.

Defendant, as he was involved in a car crash, was transported to a nearby hospital to be cleared before being transported to prison. Detective David Deroche, the lead investigator of the vehicle burglaries, arrived at the hospital and noticed defendant staring at his badge, which he was wearing on his belt next to his gun. Detective Deroche described that when he first arrived at the hospital, defendant seemed "not concerned, playful, smiling a lot," but when defendant spotted his badge, his demeanor changed to "more serious." Since Detective Deroche did not want to alert defendant he was suspected in the homicides and wanted him to be relaxed, he informed him that he was a "burglary detective from Jefferson Parish...investigating some door pulls" and that defendant had "some more serious things to worry about concerning that car [defendant was] driving." After Detective Deroche said that, he described that defendant looked away and smiled and returned to his previous demeanor.

The Toyota Highlander was later processed by the Jefferson Parish Crime Lab. Items that were stolen from the burglarized vehicles were located in the Toyota Highlander. Latent fingerprints were also taken from the exterior of the Highlander, which matched both defendant and Ms. DeGruy. Detective Thomas Gai, who participated in the processing of the Highlander, explained that relative to the homicide investigation, he was looking for several items he knew were taken from inside of the Pence home, in addition to items that would be pertinent to the burglary investigation. Importantly, a CVS card belonging to David Pence was found inside of the Highlander, which through Ms. Pence, the detectives knew was taken from her purse inside the home at the time of the murders. A search warrant was obtained for defendant's home at 2227 Arts Street in New Orleans. Deputy Gabriel Faucetta assisted in the search of defendant's home. He testified that the home was a "raised shotgun," and as he was looking underneath the home, he located a shotgun on top of one of the floor rafters. Deputy Ryan Singleton, a crime scene technician, retrieved the 12-gauge Mossberg shotgun from underneath the house. He explained that he found one spent shotgun shell and three live rounds still inside the gun. Detective Gai explained that the spent shotgun shell was significant as he knew from ballistics inside the Pence home that there were five shells that were fired at the time of the murders, but only four were recovered from the home. From inside of the home, other items consistent with those that were stolen in the burglaries were recovered, as well as items belonging to the victim of the carjacked Toyota Highlander.

Deputy Singleton also explained he swabbed the shotgun for DNA; analysis showed that the DNA profile from the swab of the shotgun's stock, trigger guard, and grip was a mixture of a major and minor contributor and that defendant's DNA was consistent with the DNA for the major contributor. Ballistics analysis further showed that all the spent shotgun shells recovered from the Pence home, as well as the one that was recovered from inside the shotgun, were fired by the 12-gauge Mossberg shotgun that was recovered from defendant's home.

Detective Gai and Detective Roniger obtained an arrest warrant for defendant for the murders of David and Nicholas Pence and interviewed defendant while he was in custody at Orleans Parish Prison. Detective Gai described that during the beginning of the interview defendant "didn't seem too very worried," but later his demeanor changed, and "he appeared to be more worried and scared regarding specifically questions of the homicide at 3717 Clifford." In his statements, defendant indicated he committed the vehicle burglaries; however, he denied involvement in the murders.

LAW AND ANALYSIS

In his first assignment of error, defendant contends that the trial court violated his Eighth Amendment right against excessive punishment when it failed to authorize the appropriate funding for defense counsel to secure experts who would research and compile all relevant mitigating factors on Allen's behalf in preparation of the Miller hearing.

As noted above, defendant previously sought supervisory review from this Court after the trial court denied defendant's second request for funds to hire an expert in advance of his Miller hearing. In finding no error in the trial court's denial for expert funding at that time, we reasoned:

Defendant was seventeen years old at the time of the offenses. Thus, he is clearly entitled a hearing pursuant to Miller v. Alabama , supra , and La. C.Cr.P. art. 878.1 to determine whether the mandatory life sentence for his second degree murder convictions should be imposed with or without parole eligibility. La. C.Cr.P. art. 878.1(B) sets forth factors to be considered at the sentencing hearing and provides as follows:
At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. Sentences imposed without parole eligibility should normally be reserved for the worst offenders and the worst cases.
In this case, defense counsel is requesting funding, citing to various constitutional articles and State v. Touchet , 93-2839 (La. 9/6/94), 642 So.2d 1213, to conduct a proper Miller hearing and to allow him to employ a mitigation investigator, a fact investigator, a psychologist, an expert in trauma, and a prison adjustment expert.
In State v. Touchet , supra at 1221-1222, the Louisiana Supreme Court discussed expert funding as follows:
At the hearing on expert funding, whether ex parte or contradictory, the defendant must first show a need for the funding. The defendant must show with a reasonable degree of specificity what type of expert is needed and for what purpose. In other words, the indigent defendant requesting governmental funding for the securing of expert assistance must show that it is more likely than not that the expert assistance will be required to answer a serious issue or question raised by the prosecution's or defense's theory of the case. If the defendant meets this burden, then the court is to order that the funds be provided by the state. If the defendant fails to meet this burden, and the proceedings were held ex parte, both the written reasons for denial and the record of the proceedings are to remain under seal during the pendency of the defendant's prosecution, including appellate review.
We first note that relator has not made the required showing under State v. Touchet to support his request for funding. At this point, relator's request is based on speculation as to what, if anything, the experts might find to be a mitigating factor in sentencing. As noted by the trial court at the April 5, 2017 hearing, "it's still a fishing expedition because you don't know if appointment of these experts would be of any benefit at this time." Moreover, the trial court's denial of relator's request for funding does not deny relator a meaningful opportunity to present mitigating evidence at the sentencing hearing. In fact, the trial court informed defense counsel as follows: "I mean, if you want to, you know, in your argument to the Court discuss his background and, you know, his history and bring those issues to light to the Court, that's an adequate opportunity to tell his story and present his claim fairly." In State v. Dove , 15-783 (La. App. 4 Cir. 5/4/16), 194 So.3d 92, 117, the Fourth Circuit, in discussing the evidence considered at the sentencing hearing stated:
We find no mandate that a juvenile must have a comprehensive family interview; a prenatal history investigation; a developmental history documented; a full medical history ascertained; a history of substance abuse documented; a social history obtained; and/or a psychological evaluation completed before sentencing, although some or all of them might in the appropriate case be useful but not dispositive.

State v. Allen , supra .

Under the doctrine of the "law of the case," an appellate court will generally decline to consider its own rulings of law on a subsequent appeal in the same case. State v. Burciaga , 05-357, p. 5 (La. App. 5 Cir. 2/27/06), 924 So.2d 1125, 1128. The principle is applicable to all decisions of an appellate court; not solely those arising from full appeal. State v. Johnson , 06-859, p. 12 (La. App. 5 Cir. 4/11/07), 957 So.2d 833, 840. One reason for imposition of the doctrine is the avoidance of indefinite relitigation of the same issue; but it will not be applied in cases of palpable former error. Id. The prior denial of supervisory writs does not preclude reconsideration of an issue on appeal, nor does it prevent the appellate court from reaching a different conclusion. State v. Castleberry , 98-1388 (La. 4/13/99), 758 So.2d 749, 755, cert. denied , 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999). Reconsideration is warranted when, in light of subsequent trial record, it is apparent that the determination was patently erroneous and produced unjust results. State v. Davis , 03-488, p. 6 (La. App. 5 Cir. 11/12/03), 861 So.2d 638, 641 n.2, writ denied , 03-3401 (La. 4/2/04), 869 So.2d 874.

By this assignment of error, defendant effectively seeks to have this Court reconsider its prior ruling. However, defendant has not presented any new evidence to indicate that the issue is now different, nor is any such difference evident from the record. Defendant was afforded a hearing pursuant to Miller v. Alabama, supra , and La. C.Cr.P. art. 878.1 to determine whether the mandatory life sentence for his second degree murder convictions should be imposed with or without parole eligibility. Defendant was provided a meaningful opportunity to present mitigating evidence at the sentencing hearing. While defendant maintains that he should have been provided funds for a mitigation investigator, a fact investigator, a psychologist, an expert in trauma, and a prison adjustment expert for the purposes of conducting the Miller hearing, defendant's asserted reasons for seeking the assistance of those experts never developed beyond the level of speculation, and therefore never met the showing required under State v. Touchet , supra . Thus, defendant has failed to show that this Court should not follow the law of the case doctrine and decline to exercise its discretion to reconsider its prior ruling on this issue.

Accordingly, this assigned error is without merit.

In his second assignment of error, defendant argues that the trial court erred in not following a mandate in Miller for the "prosecution to carry its burden of showing that the sentence expressly mentioned in the statute is appropriate by showing that the aggravated factors outweigh all of the mitigating factors."

The record shows that on December 5, 2016, defendant filed a Motion to Require the State to Provide Notice of Intent to Seek a Sentence of Life without Parole and to Provide Notice of the Aggravating Factors It Intends to Rely on in Support of this Sentence. In the motion, defendant argued that because the sentencing phase of Miller cases had been analogized to capital penalty phases by the United States Supreme Court, the corresponding capital procedural protections must necessarily be incorporated in the Miller context. Defendant also filed a Motion for Evidence in Aggravation Including Notice of Jackson Evidence and Bernard Evidence, requesting disclosure of evidence of prior convictions or unadjudicated misconduct the prosecution contemplated producing at the penalty phase under Jackson . He also sought disclosure of victim impact evidence under Bernard .

The State filed opposition to these motions, arguing that while Miller and other relevant United States Supreme Court jurisprudence drew analogies between the death penalty for adults and life without parole for juveniles, such analogies did not establish that a Miller hearing is the functional equivalent of a capital sentencing hearing. The State averred that none of the special concerns innate to capital sentencing should be construed as to apply in the context of Miller hearings.

The motions were heard on April 5, 2017, and were denied by the trial court, which found that "in light that this is not a capital case," Bernard and Jackson were "not applicable."

In State v. Brown , 12-0872 (La. 5/7/13), 118 So.3d 332, 335, the Louisiana Supreme Court acknowledged that "the Miller holding permits the imposition of a life sentence without parole but only after an opportunity to consider mitigating circumstances." See also State v. Baker , 14-0222, p. 7 (La. App. 1 Cir. 9/19/14), 154 So.3d 561, 566, writ denied , 14-2132 (La. 5/15/15), 170 So.3d 159 (stating that " Miller's sole holding was to prohibit a 'sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders' without first considering certain attendant and mitigating characteristics"); State v. Brooks , 49,033, pp. 6-7 (La. App. 2 Cir. 5/7/14), 139 So.3d 571, 576, writ denied , 14-1194 (La. 2/13/15), 159 So.3d 459 (finding that Miller does not create a categorical bar against life without benefit of parole for juveniles, "but a sentencing court must first consider an offender's youth and attendant characteristics as mitigating circumstances before determining whether to impose the harshest possible penalty for a juvenile offender"). As noted by the Louisiana Third Circuit in State v. Doise , 15-713 (La. App. 3 Cir. 2/24/16), 185 So.3d 335, 344 :

We find nothing in Miller that requires the trial court to consider certain factors prior to determining whether the juvenile's sentence will be imposed with or without parole. Louisiana Code of Criminal Procedure Article 878.1 likewise gives the sentencer examples of what it may consider when deciding whether a juvenile homicide offender is eligible for parole but also allows the sentencer the freedom to consider any other relevant factors ...

After Miller was decided, the Louisiana legislature enacted La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E), both of which provide procedural guidelines for parole eligibility regarding offenders who commit first or second degree murder when they are under eighteen years of age. Addressing whether a juvenile offender's life sentence should be imposed with or without parole, La. C.Cr.P. art. 878.1 provides, in pertinent part:

C. At the hearing, the prosecution and defense shall be allowed to introduce any aggravating and mitigating evidence that is relevant to the charged offense or the character of the offender, including but not limited to the facts and circumstances of the crime, the criminal history of the offender, the offender's level of family support, social history, and such other factors as the court may deem relevant. The admissibility of expert witness testimony in these matters shall be governed by Chapter 7 of the Code of Evidence.
D. The sole purpose of the hearing is to determine whether the sentence shall be imposed with or without parole eligibility. The court shall state for the record the considerations taken into account and the factual basis for its determination. Sentences imposed without parole eligibility and determinations that an offender is not entitled to parole eligibility should normally be reserved for the worst offenders and the worst cases.

In the instant case, at defendant's Miller hearing, the State first introduced all of the evidence from trial. The State then called as a witness Jefferson Parish Sheriff's Office Homicide Detective Brad Roniger, who was the lead detective on this case. As demonstrated through photographs of the crime scene, Detective Roniger testified that anyone who looked through the glass side door of the Pence residence on the date and around the time of the murders would have seen Mrs. Pence's purse on a kitchen island and Mr. Pence asleep in a recliner. Detective Roniger reiterated the coroner's conclusion that Mr. Pence was shot three times while asleep, because his legs were still crossed when he was discovered. The bullet wounds were to Mr. Pence's head, abdomen and leg. Nicolas Pence was shot while in a kneeling position. Detective Roniger recounted that defendant was not carrying a shotgun during the simple burglaries, but armed himself before entering the Pences' home. The shotgun was found underneath defendant's mother's house. Detective Roniger also identified a U.S. Marshal's ballistic vest, similar to the one worn by Harley Smith on the day that defendant attempted to run him over.

The State summarized the aggravating circumstances of the murders of David and Nicholas Pence as follows:

THE STATE:
...
We're not talking about some sort of crime of passion or some other circumstance that we in this building often see homicides occur from. He [defendant] went in there knowingly armed with a shotgun. He got the purse either before or after. The crux of this Miller hearing is that when he got inside, he saw David Pence sleeping in his chair, went over. He shot him once in the head, and then he shot him two more times. The only reason why somebody, why an individual shoots somebody in the head with a shotgun and then shoots them two more times is because they want to do it, they like to do it, they like the power of it.
Nicholas Pence hears the loud noises, comes around the corner, and then we don't know if he was ordered down or if he voluntarily got down, but then he was executed as well, just like David Pence was. Again, this is not a gun goes off in a drug deal. This is not two guys who have a longstanding beef. This is-the word unnecessary does not do it justice when you enter a person's house presumably to get a purse and then you shoot a sleeping man and then you shoot his son who comes in to see what's going on.
He had what they were there for. They could have easily gone in, got the purse, and left. It would have taken not even a second. But the choice, the unnecessary choice to proceed further into the house to that EasyChair is why the State feels that life without parole is warranted. It was unnecessary to shoot David Pence. It was unnecessary to shoot him three times. It was unnecessary-all he had to do was order Nick Pence down and leave. He didn't. He shot him twice as well.
It was completely unnecessary to try to run over Harley Smith, the U.S. Marshal, who was clearly a law enforcement officer.

During sentencing, the trial court provided reasons why it imposed defendant's life sentence without the possibility of parole:

THE COURT:
...
The Court has been with this case since its inception. The Court has had the opportunity to observe Mr. Allen. At no time has this Court seen Mr. Allen show any emotion other than anger. There has been no remorse. There's been no request to say "I'm sorry" or request for forgiveness from the family.
...
By any definition, the murders of David and Nicholas Pence were heinous. David Pence was shot and killed while he slept, not once, but three times. I still remember the demonstration of the officer showing what physical effort it took to pump that shotgun three times. And then with the house filled with smoke and the smell of burning gunpowder, you pumped two more shots into Nicholas Pence.
The case of Dove says that we have to determine whether or not you are irreparably corrupted. This was not an act of immaturity but an intentional, horrible act. The horror inflicted on this family was evident from the moment that Beth Pence picked up that phone and called 911. I watched you during that phone call as it was being replayed, Mr. Allen. You showed no emotion. How you cannot feel for the mother of Nicholas Pence and the wife of David Pence for the horror that you caused them is cold. They were a family, and you took that away from them.
While I will never know and they will never know why you did that, I can make sure that you never have the opportunity to do it again.

In State v. Smoot , 13-453 (La. App. 5 Cir. 1/15/14), 134 So.3d 1, writ denied , 14-0297 (La. 9/12/14), 147 So.3d 704, this Court found that the trial court complied with the Miller principles at the sentencing hearing and thereafter affirmed the imposition of a life imprisonment without benefit of parole, probation, or suspension of sentence upon a juvenile defendant who shot an elderly, homeless drug addict multiple times. This Court noted that the trial court considered mitigating factors and particularly took defendant's youth into account before imposing the sentence. Here, as in Smoot , it appears that the trial court complied with the sentencing directives set forth in Miller . All Miller requires is "a hearing at which youth-related mitigating factors can be presented to the sentencer and considered in making a determination of whether the life sentence imposed upon a juvenile killer should be with or without parole eligibility." State v. Jones , 15-157 (La. App. 5 Cir. 9/23/15), 176 So.3d 713, 718 (citing State v. Fletcher , 49,303 (La. App. 2 Cir. 10/1/14), 149 So.3d 934, cert. denied , --- U.S. ----, 136 S.Ct. 254, 193 L.Ed.2d 189 (2015) ). As evidenced by the trial court's extensive reasons, the trial court clearly considered defendant's youth at the time of the offenses, as well as all the other mitigating circumstances; however, based on the facts of the case and the violence and brutality of the crimes committed, the trial court believed that the denial of parole was warranted.

Pursuant to a careful review of the record, we find that the sentences imposed are not grossly out of proportion to the seriousness of the offenses so as to shock our sense of justice and therefore conclude that the life sentences without benefits imposed on defendant are not excessive. Accordingly, we find this assignment to be without merit.

In his third assignment of error, citing La. C.Cr.P. art. 905.2 and jurisprudence involving capital punishment, defendant contends that because Christopher Meyer, a friend of Nicholas Pence, gave a statement wherein he discussed how Nicholas' death had impacted him, a non-family member, the statement was improper because it exceeded the scope of La. C.Cr.P. art. 905.2(A). Defendant also argues that Elizabeth Branley Pence's statement exceeded the scope of La. C.Cr.P. art. 905.2(A) because she made a recommendation to the district court of a possible sentence for defendant. Defendant concludes that the district court's acceptance of these two statements, which went beyond the statutory boundaries of La. C.Cr.P. art. 905.2(A), amounts to reversible error and should not be cloaked under the harmless error rule.

On February 24, 2017, defendant filed a Motion to Exclude Victim Impact Statement, arguing to prohibit the admission of irrelevant, inflammatory and overwhelming victim impact evidence in the sentencing phase of defendant's trial. He argued that in the capital context, characterizations of the offense and defendant are prohibited by the Eighth Amendment, and so too should be prohibited in the context of his Miller hearing. Alternatively, he argued that the court should limit the number of victim impact witnesses. The State filed opposition noting that all the cases relied upon by defendant discussed victim impact evidence in the context of capital cases, and that while Miller and other relevant Supreme Court jurisprudence drew analogies between the death penalty for adults and life without parole for juveniles, such analogies do not establish that a Miller hearing is the functional equivalent of a capital sentencing hearing, and as such, defendant's cited case had little to no instructive value. At the hearing on the motion on April 5, 2017, the trial court denied the motion to exclude the victim impact evidence, as it found that "these are allowed under the law" but also "with the understanding that the State is not going to bring in witnesses against Mr. Allen unless the defense makes it an issue and at which time they reserve the right to rebut."

La. R.S. 46:1844 (K)(3)(b) provides, in pertinent part:

At the sentencing hearing, the court shall afford the counsel for the defendant, the attorney for the state, and the victim or designated family member an opportunity to comment upon matters relating to the appropriate sentence.

In the specific context of a Miller hearing, the Louisiana Supreme Court has sanctioned the consideration of victim impact evidence. In State v. Montgomery , 13-1163 (La. 6/28/16), 194 So.3d 606, the Supreme Court provided guidance to the district courts in adjudicating Miller hearings. Taking note that the factors enumerated in La. C.Cr.P. art. 878.1 were not exhaustive, the Louisiana Supreme Court observed that other states have also legislatively implemented Miller and in particular sanctioned the use of the factors enumerated in Florida law, including "[t]he effect of the crime on the victim's family and on the community." Montgomery , 13-1163, 194 So.3d at 609. As such, Louisiana law and jurisprudence sanction victim impact evidence in the context of a Miller hearing.

The record shows that defense counsel lodged several objections at the hearing on April 20, 2017. However, because defendant did not object to the testimony of Nicholas Pence's friend, Christopher Meyer, we find that any challenge to his testimony is waived on appeal. Nevertheless, as per Montgomery, supra, we find the admission of Meyer's impact testimony is consistent with showing the effect of Nicholas Pence's murder on the community where he lived.

While defendant argues that it is impermissible for victim impact statements to include opinions on sentencing, other Louisiana courts have found no error under similar circumstances. In the instant case, the record demonstrates that the trial court placed Beth Pence's statement regarding the murder of her husband and son, in the proper context.

THE COURT:
The Court notes your objection for the record. The Court believes that though she can make that request in her statement, the final decision is left up to the Court, and the Court will give it whatever weight he believes it's entitled to.

Defendant gives no authority to support his contention that a Miller hearing should be considered the functional equivalent of a capital sentencing hearing; he further cites no case applying La. C.Cr.P. art. 905.2(A) to a Miller hearing. As noted by the Second Circuit in State v. Fletcher , 49,303 (La. App. 2 Cir. 10/1/14), 149 So.3d 934, 949 :

Nothing in Miller prohibits the sentencing court from considering the devastating emotional trauma suffered by these relatives who continue to grieve for the murder victims and to fear for their own safety. Furthermore, La. C. Cr. P. art. 878.1 provides that the aggravating and mitigating evidence introduced at a Miller hearing may include "the offender's level of family support" and "such other factors as the court may deem relevant."

Accordingly, we find no trial court error in allowing the victim impact statements in this matter.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920 ; State v. Oliveaux , 312 So.2d 337 (La. 1975) ; and State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990). The following matters are noted.

On counts five through 23, La. R.S. 14:62 provides that the term of imprisonment for simple burglary shall be "with or without hard labor for not more than twelve years." Although the commitment reflects that defendant's sentences on counts five through 23 were imposed at hard labor, the transcript does not reflect that the judge ordered that the sentences would be imposed at hard labor or provided that the sentence would be served with the Department of Corrections. Generally, where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983). Where, as in this case, the applicable sentencing statute allows discretion, the sentencing court's failure to indicate whether the sentence is to be served at hard labor is an impermissible, indeterminate sentence. State v. Joseph , 16-191 (La. App. 5 Cir. 12/7/16), 205 So.3d 1013, writ denied , 17-0299 (La. 11/17/17), 230 So.3d 216 ; State v. Horton , 09-250 (La. App. 5 Cir. 10/27/09), 28 So.3d 370, 376-77. Accordingly, we vacate defendant's sentences on count five through 23 and remand the matter to the trial court for the imposition of a determinate sentence in accordance with La. C.Cr.P. art. 879.

Also, the transcript from the hearing on defendant's motion to reconsider sentence indicates that the trial judge advised defendant that he had "two years after the sentence becomes final to file for post-conviction relief," which is incomplete. It is well-settled that if a trial court provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief. See State v. Neely , 08-707 (La. App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La. 10/30/09), 21 So.3d 272 ; State v. Davenport , 08-463 (La. App. 5 Cir. 11/25/08), 2 So.3d 445, 451, writ denied , 09-0158 (La. 10/16/09), 19 So.3d 473. Accordingly, we advise defendant by way of this opinion 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.

DECREE

For the foregoing reasons, defendant's convictions are affirmed, and his life sentences for his second degree murder convictions, without benefit of parole, probation, or suspension of sentence, are affirmed. We vacate defendant's sentences on counts five through 23 and remand this matter to the district court for the imposition of determinate sentences for defendant's simple burglary convictions.

AFFIRMED IN PART; REVERSED IN PART; REMANDED

      Also charged in the indictment was co-defendant Haraquon Degruy, who was alleged to be a principal in the second degree murders of David Pence and Nicholas Pence, as well as for the 21 remaining counts of simple burglary.

      The record does show that defense counsel requested and was granted several subpoenas duces tecum for defendant's records from school and from other institutions that may have had information pertaining to defendant's early life. However, defendant did not introduce any documentation at the Miller hearing.

      In State v. Jackson , 608 So.2d 949 (La. 1992), the Supreme Court held that the State may introduce evidence of unadjudicated and unrelated criminal conduct in the penalty phase of a capital trial once the trial judge has determined: "(1) the evidence of defendant's connection with commission of the unrelated crimes is clear and convincing, (2) the proffered evidence is otherwise competent and reliable, and (3) the unrelated crimes have relevance and substantial probative value as to the defendant's character and propensities, which is [the] focus of the sentencing hearing under Article 905.2." Jackson , 608 So.2d at 955. Jackson limited the criminal conduct for which the prosecutor may introduce evidence in the case-in-chief in the capital sentencing hearing to that which involves violence against the person of the victim and conduct for which the period of limitation for instituting prosecution had not run at the time of the indictment of the accused for the first degree murder for which he is being tried. Id. , 608 So.2d at 955. The hearing to determine whether other crimes evidence is admissible in the penalty phase is often called a "Jackson" hearing.

      State v. Bernard, 92-0997 (La. 11/12/92), 608 So.2d 966, held that victim impact evidence, which it defined as evidence of the character of the victim, evidence of the emotional, physical, and economic impact of the crime on the family of the murdered victim, excluding evidence of the survivors' opinions of the crime and of the murderer, is admissible at the capital sentencing hearing to show the character and propensities of the defendant and the circumstances of the crime. Bernard , 92-0997, 608 So.2d at 967-68, 972.

      La. C.Cr.P. art. 905.2 provides guidelines for the use of victim impact evidence in a capital case.

      Generally, defendant objected to the Miller hearing going forward while writs were still pending at the Louisiana Supreme Court. During Detective Roniger's testimony, defendant objected to any speculation that defendant could have stolen items from the Pence residence without having to shoot either David or Nicholas Pence. With respect to Tara Pence's testimony, defendant objected to her using the word "brutally" in the sentence, "In three days, it will be the two-year anniversary of the last time I saw my dad and brother, two years since a convicted murderer came into my house and brutally murdered them for a purse and an I-phone." Finally, defendant objected to the portion of Beth Pence's statement about what she wanted the sentence to be.

      See La. C.Cr.P. art. 841, State v. Berroa-Ryes , 12-581 (La. App. 5 Cir. 1/30/13), 109 So.3d 487, 498 ; State v. Richoux , 11-1112 (La. App. 5 Cir. 9/11/12), 101 So.3d 483, 490-491, writ denied , 12-2215 (La. 4/1/13), 110 So.3d 139 ; State v. Alvarez , 10-925 (La. App. 5 Cir. 6/29/11), 71 So.3d 1079, 1085.

      For example, in State v. Reese , 13-1905, 2014 La. App. Unpub. LEXIS 388, 2014 WL 3843859 (La. App. 1 Cir. 6/25/14) (unpublished), defendant, a 16 year old, pled guilty to second degree murder and was sentenced to life without parole. On appeal, the defendant claimed that the trial court erred in allowing improper victim impact statements at his Miller hearing, including from victim's father, who asked for the maximum sentence. Among other considerations, the First Circuit surmised that, even if the victim impact testimony had exceeded permissible boundaries, "surely the trial court regarded the testimony of these victim impact witnesses as normal human reactions to the death of a loved one."


source: Caselaw Access Project

author: LILJEBERG, J.

license: Public Domain

text:
    STATE of Louisiana v. Germaine GUMMS
    NO. 17-KA-564, 17-KA-565
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Darren A. Allemand
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Hans J. Liljeberg
   LILJEBERG, J.

The State of Louisiana appeals the trial court's judgment granting defendant's motion to quash the bills of information filed against him. For the following reasons, we reverse the trial court's judgment, reinstate the bills of information, and remand for further proceedings.

PROCEDURAL HISTORY

On July 21, 2014, the Jefferson Parish District Attorney charged defendant, Germaine Gumms, by two separate bills of information, with possession of methamphetamine, a felony, in violation of La. R.S. 40:967(C), in district court case number 14-3778, and possession of synthetic cannabinoid, a misdemeanor, in violation of La. R.S. 40:966(C), in district court case number 14-3779. Both offenses are alleged to have occurred on March 3, 2014. Defendant pleaded not guilty to both charges.

On August 23, 2017, defendant filed a motion to quash, arguing that the State failed to commence trial of the charged offenses in a timely manner. The State filed a response to defendant's motion to quash, maintaining that the prescriptive period was interrupted, and thus, the prosecution of defendant's alleged crimes had not prescribed.

The following is a timeline of the relevant events leading up to the hearing on the motion to quash.

March 3, 2014 : the charged offenses were allegedly committed; on the same date, defendant obtained a commercial bond for his release and agreed to appear in court on April 17, 2014 at 9:00 a.m.
April 17, 2014 : defendant failed to appear in court as instructed; an attachment for defendant's arrest was issued and a judgment forfeiting defendant's bail bond was signed by the Criminal Commissioner.
May 8, 2014 : certificate of mailing judgment of bond forfeiture was sent to defendant at last known address provided by defendant.
July 21, 2014 : the State filed bills of information against defendant for possession of methamphetamine (case number 14-3778) and possession of synthetic cannabinoid (case number 14-3779).
September 19, 2014 : the commercial surety filed a motion to set aside judgment of forfeiture and petition for nullity of judgment, stating that relief is warranted because "within six months of the mailing of the notice of bond forfeiture to the surety company, defendant was incarcerated in Jefferson County, Texas from June 14, 2014 through June 24, 2014;" attached to the surety's motion was a copy of a "Prisoner Jail Record" from "Jefferson Co[.]" providing a sentence start date of "61414" and a sentence expiration date of "62414."
January 12, 2015 : trial court granted the surety's motion to set aside bond forfeiture; attachment for defendant's arrest remained outstanding.
May 31, 2017 : attachment was satisfied by arrest of defendant, and recall of attachment was issued; defendant was arraigned on the charged offenses and entered pleas of not guilty; defendant was personally served with a subpoena for his appearance in court for a pre-trial hearing on July 14, 2017.
August 23, 2017 : defendant filed a motion to quash the bills of information arguing the prosecution against him had prescribed.

On September 21, 2017, the trial court heard the motion to quash. After listening to the arguments of counsel, the trial court granted defendant's motion to quash, finding "the Court believes that once the State is aware of Mr. Gumms's location that they had a duty to go ahead and to ask Texas to produce him or to serve him in Texas." Thereafter, the State filed motions for appeal in both the felony and misdemeanor cases, and they were granted by the trial court. This Court consolidated defendant's appeals on November 17, 2017.

LAW AND DISCUSSION

On appeal, the State argues the trial court erred in granting defendant's motion to quash. It asserts that defendant failed to appear in court on April 17, 2014, pursuant to actual notice, and an attachment for his arrest was issued, causing an interruption to the prescriptive period. The State maintains the attachment against defendant was not satisfied until May 31, 2017, when he was arrested and appeared before the trial court, and thus, prescription did not commence to run anew until the date of his 2017 court appearance, rendering the prosecution of his misdemeanor and felony offenses timely. The State avers that while defendant claimed that notice of his alleged incarceration in Texas was provided to it by the surety via a motion to set aside judgment of forfeiture filed on September 19, 2014, said "notice" did not satisfy the notification requirements of La. C.Cr.P. art. 579(C).

At the hearing and in his motion to quash, defendant conceded that he was provided with actual notice to appear in court on April 17, 2014, and that when he failed to appear, an attachment was issued for his arrest, interrupting the prescriptive period set forth under La. C.Cr.P. art. 578. Defendant argued that the interruption ceased on September 19, 2014, when the State was informed by the surety who issued his bond that the reason for his lack of appearance was due to his incarceration in Texas. Defendant submitted that once the State was made aware that he had been jailed in Texas, it was incumbent upon the State to take the "appropriate steps" to secure his presence. Although the surety's motion indicated defendant had been released from custody on June 24, 2014, it was defendant's contention that the State should have called the Texas Department of Corrections where it would have then learned that defendant was under parole supervision until October 24, 2014. Accordingly, because he was not brought to court in Louisiana until three years after the bills of information were filed against him, defendant averred the State's misdemeanor and felony charges were prescribed.

La. C.Cr.P. art. 532(7) provides that a motion to quash may be based on the expiration of the time limitation for the institution of prosecution or for the commencement of trial. La. C.Cr.P. art. 578(A) provides:

Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
(1) In capital cases after three years from the date of institution of the prosecution;
(2) In other felony cases after two years from the date of institution of the prosecution; and
(3) In misdemeanor cases after one year from the date of institution of the prosecution.

Defendant was charged by bills of information filed on July 21, 2014, with possession of methamphetamine, a felony, in violation of La. R.S. 40:967(C), and possession of synthetic cannabinoid, a misdemeanor, in violation of La. R.S. 40:966(C). Therefore, pursuant to La. C.Cr.P. art. 578(A)(2) and (A)(3), trial was required to have commenced within two years from the date of institution of the prosecution for the charge of possession of methamphetamine, and one year from the date of institution of the prosecution for the charge of possession of synthetic cannabinoid. It is well-settled that a prosecution is instituted on the date when the indictment is returned or the bill of information is filed. State v. Smith , 07-959 (La. App. 5 Cir. 3/11/08), 982 So.2d 831, 834. Accordingly, since the bills of information were filed on July 21, 2014, the time limitation for bringing defendant to trial would have expired on July 21, 2015, for his misdemeanor offense, and July 21, 2016, for his felony offense.

However, Louisiana law allows for the interruption of this prescriptive period. State v. Romar , 07-2140 (La. 7/1/08), 985 So.2d 722, 725. La. C.Cr.P. art. 579, amended by Acts 2013, No. 6, § 1, effective August 1, 2013, provides:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.
C. If the defendant fails to appear in court pursuant to any provision of this Article and the defendant is subsequently arrested, the periods of limitations established by Article 578 of this Code shall not commence to run anew until the defendant appears in person in open court where the case on the original charge is pending, or the district attorney prosecuting the original charge has notice of the defendant's custodial location. For purposes of this Paragraph, "notice" shall mean either of the following:
(1) Filing in the court record by either the defendant or his counsel advising the court of his incarceration with a copy provided to the district attorney and certification of notice provided to the district attorney.
(2) Following the seventy-two hour hearing provided by Article 230.1 of this Code, actual notice of arrest is provided to the district attorney and filed in the record of the proceeding of which the warrant against the defendant was issued.

In the present case, it is uncontested that defendant's failure to appear for his April 17, 2014 court date interrupted prescription. The record reveals defendant had actual notice of that hearing as evidenced by his signature on the appearance bond. When defendant failed to appear, the court ordered the forfeiture of defendant's bond, and a warrant for defendant's arrest was issued. The question for this Court to resolve is whether the interruption, which commenced on April 17, 2014, ceased on September 19, 2014 (as suggested by defendant) or when defendant was arrested pursuant to the outstanding warrant on May 31, 2017 (as suggested by the State).

La. C.Cr.P. art. 579(A)(3)"does not impose on the state the affirmative duty to search for a defendant who has failed to appear for trial after receiving actual notice." Romar , 985 So.2d at 726. Rather, the limitations period begins to run anew only when the state receives notice of an incarcerated defendant's custodial location. See, e.g., State v. Baptiste , 08-2468 (La. 6/23/10), 38 So.3d 247 (limitations period did not begin to run anew until authorities from the parish in which the defendant was incarcerated contacted authorities where charges were pending and informed them of the defendant's custodial status and location).

In Romar , supra , the defendant failed to appear for trial, for which he received actual notice, and an attachment for his arrest was issued. Eight years passed before the defendant was arrested on the attachment and appeared in court. The Louisiana Supreme Court explained that an arrest warrant "remains in effect until executed" and "does not become 'stale' with the passage of time." Romar , 985 So.2d at 727. The Court further explained that Louisiana law allows an attachment to remain open and serve as a "trip wire against the day when a defendant again comes to the attention of the authorities." Id. It stated that even though the defendant was arguably "locatable" during the eight years, the State did not have an affirmative duty to search for him. The Court concluded that the period of limitation for bringing the defendant to trial was interrupted and did not run anew until the defendant was arrested on the open attachment and appeared in court. Romar , 985 So.2d at 726-27.

In Baptiste , supra , the defendant failed to appear for a pre-trial conference in a matter in Plaquemines Parish. The defendant was incarcerated in St. Charles Parish subsequent to the issuance of the arrest warrant in Plaquemines Parish. The Louisiana Supreme Court found that the State did not bear a duty to monitor the status of an outstanding arrest warrant in another parish. The Court further found the interruption in the time delays for institution of prosecution ended only when the St. Charles Parish authorities contacted officials in Plaquemines Parish to inform them of the defendant's impending release and their discovery of the arrest warrant against him in their parish.

After Romar and Baptiste were decided, in 2013, the Louisiana Legislature enacted subsection C to La. C.Cr.P. art. 579, imposing more specific notice requirements if a defendant fails to appear in court. Specifically, as previously set forth supra , subsection C, which went into effect prior to the commission of the alleged offenses and the commencement of the 2014 prosecutions in this case, provides:

C. If the defendant fails to appear in court pursuant to any provision of this Article and the defendant is subsequently arrested, the periods of limitations established by Article 578 of this Code shall not commence to run anew until the defendant appears in person in open court where the case on the original charge is pending, or the district attorney prosecuting the original charge has notice of the defendant's custodial location . For purposes of this Paragraph, "notice" shall mean either of the following:
(1) Filing in the court record by either the defendant or his counsel advising the court of his incarceration with a copy provided to the district attorney and certification of notice provided to the district attorney.
(2) Following the seventy-two hour hearing provided by Article 230.1 of this Code, actual notice of arrest is provided to the district attorney and filed in the record of the proceeding of which the warrant against the defendant was issued .

(Emphasis added).

In the present case, we find the trial court erred in granting defendant's motion to quash when it found that the State was "aware of [defendant's] location and they had a duty to go ahead and ask Texas to produce him or serve him in Texas[,]" for several reasons. First, after defendant failed to appear on April 17, 2014, none of the mandatory notice requirements set forth under La. C.Cr.P. art. 579(C) to supply the State with defendant's actual custodial location were met. Here, the only documentation filed into the court record was that provided by the surety in September 2014 indicating defendant's release from incarceration in Texas in June 2014. Such documentation does not comply with either subpart C (1) or (2), supra .

The Louisiana Supreme Court's opinion in State v. Stewart , 15-1845 c/w 15-1846 (La. 5/12/17), 219 So.3d 306 (per curiam), also provides guidance in this matter, even though the Court determined in that case that La. C.Cr.P. art. 579(C) was inapplicable, because the alleged offense and commencement of prosecution had begun prior to its effective date, August 1, 2013. In its analysis, the Court noted that in cases in which the State has become aware of an absent defendant's location, "that awareness is sufficient in a case initiated before Subpart C's effective date to trigger the commencement of a new limitations period." (Emphasis added). Stewart , 219 So.3d at 309. This language suggests that mere awareness of an absent defendant's location is insufficient in cases initiated after subpart C's 2013 effective date for purposes of triggering the commencement of a new limitations period. Rather, certain specific documentation as set forth under La. C.Cr.P. art. 579(C)(1) and (2) must be filed into the record of the court to initiate the commencement of a new period of limitations. The Court further reiterated that, "[a]s we explained in Romar , the state has no affirmative duty to locate an absent defendant." Id. at 308.

Second, regardless of the noncompliance with the more specific notice requirements of La. C.Cr.P. art. 579(C), the surety's motion to set aside judgment of forfeiture filed on September 19, 2014, in which it attached evidence of defendant's alleged incarceration, does not provide the State with a general awareness of defendant's location. The surety's documentation does not contain any information on defendant's actual custodial location or of his whereabouts either at the time he failed to appear in court in April of 2014 or at the time of the filing of the September 2014 motion to set aside judgment of bond forfeiture. Specifically, attached to the surety's motion was a "Prisoner Jail Record" from "Jefferson Co[.]" appearing to indicate that defendant was released from incarceration in Texas after having served a sentence at some unidentified location in Texas from June 14-24, 2014. Here, the prison jail record provided by the surety in this case does not constitute sufficient "notice," having only provided that defendant was released from a Texas prison in June of 2014.

Further, we note that defendant argued in his motion to quash that after the State received the surety's "notice" regarding his June 2014 incarceration in Texas, he was "locatable" by means of a "simple phone call" to the Texas Department of Corrections, which would have revealed he was under parole supervision until October 24, 2014. However, this would have required the State to take affirmative steps to determine his location, which, as explained in Romar and reiterated in Baptiste and Stewart , the State is not required to do.

Accordingly, we find the trial court abused its discretion by granting defendant's motion to quash. Pursuant to La. C.Cr.P. art. 579(A)(3), interruption commenced on April 17, 2014, when defendant failed to appear in court and did not commence to run anew until his arrest on May 31, 2017. As such, neither defendant's felony nor his misdemeanor charges have prescribed.

ERRORS PATENT

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). No errors requiring corrective action were noted.

DECREE

For the foregoing reasons, we reverse the trial court's judgment granting defendant's motion to quash, reinstate the bills of information in both cases, and remand for further proceedings.

JUDGMENT REVERSED; BILLS OF INFORMATION REINSTATED; CASE REMANDED.

      Defendant originally filed his motion to quash only in the felony case. He later adopted the motion to quash in the misdemeanor case.

      Defendant attached to his motion to quash a letter dated November 6, 2014, from the Texas Department of Criminal Justice, certifying that defendant was convicted of possession of cocaine in Jefferson County, Texas, and sentenced on October 24, 2012, to two years imprisonment. It indicated that defendant was released to mandatory supervision on September 27, 2013, and was "discharged" from supervision on October 24, 2014. This information was not provided to the State prior to the filing of defendant's 2017 motion to quash. It is further noted that the offenses in this case allegedly occurred on March 3, 2014, while defendant was under the supervision of the State of Texas.

      Defendant has not filed an appellee brief in response to the State's arguments on appeal. Thus, we note only his arguments in trial court.

      It is noted that although La. C.Cr.P. art. 580 provides that the filing of a motion to quash suspends the limitations period only until the court has ruled on the motion, because the parties have pursued review with this Court, the limitations period has been suspended pending finality of review. Stewart , 219 So.3d at 309, citing La. C.Cr.P. art. 922.


text:
    STATE of Louisiana v. Vernon E. FRANCIS, Jr.
    NO. 17-KA-651
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux
    COUNSEL FOR DEFENDANT/APPELLANT, VERNON E. FRANCIS, JR., Jane L. Beebe
    DEFENDANT/APPELLANT, VERNON E. FRANCIS, JR., In Proper Person
    Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and Marion F. Edwards, Judge Pro Tempore
   EDWARDS, JUDGE PRO TEMPORE, J.

On appeal, defendant's appointed appellate counsel has filed an Anders brief on defendant's behalf, asserting there is no basis for a non-frivolous appeal. Further, defendant has filed a pro se supplemental brief assigning three errors. For the following reasons, we affirm defendant's sentence, advise him of the time limitation for seeking post-conviction relief, and grant appellate counsel's motion to withdraw as attorney of record.

FACTS AND PROCEDURAL HISTORY

In 1993, defendant, Vernon Francis, who was tried as an adult at the age of 16 years, was convicted of the second degree murder of Shannon Cooks in violation of LSA-R.S. 14:30.1. He was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Defendant's conviction and sentence were affirmed on appeal. State v. Francis , 93-953 (La. App. 5 Cir. 03/16/94), 635 So.2d 305. In 2013, defendant sought a hearing for parole eligibility, pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 2466, 183 L.Ed.2d 407 (2012), which was held on May 12, 2017. At the conclusion of the hearing, the trial court vacated defendant's life sentence and resentenced him to life imprisonment with parole eligibility upon serving 25 years of his sentence. Defendant was thereafter granted an out-of-time appeal on September 20, 2017.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford , 95-929, pp. 3-4 (La. App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110-11, appointed appellate counsel has filed a brief asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, pursuant to Anders v. California , supra , and State v. Jyles , 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam ), appointed counsel requests permission to withdraw as counsel of record.

In Anders , supra , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by " 'a brief referring to anything in the record that might arguably support the appeal' " so as to provide the reviewing court "with a basis for determining whether appointed counsel have fully performed their duty to support their clients' appeals to the best of their ability" and to assist the reviewing court "in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw." McCoy v. Court of Appeals of Wisconsin, Dist. 1 , 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988) (internal citation omitted).

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 supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford , 95-929, at 4, 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

ANALYSIS

Defendant's appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel indicates that the trial court sentenced defendant to the mandatory minimum and granted him parole eligibility with credit for time served. Counsel further notes that there were no objections made during this sentencing and no new motions were filed that would give rise for additional appeals or claims. Appellate counsel has filed a motion to withdraw as attorney of record and has mailed defendant a copy of his brief.

The State agrees with appellate counsel that there are no non-frivolous issues to be raised on appeal and urges that this Court should grant appellate counsel's motion to withdraw.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal. Because appellate counsel's brief adequately demonstrates by full discussion and analysis that she has 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 sentence and conviction and grant appellate counsel's motion to withdraw as attorney of record.

Defendant raises three pro se assignments of error in his supplemental brief, which are addressed below.

PRO SE ASSIGNMENT OF ERROR NUMBERS ONE AND TWO

In his first pro se assignment of error, defendant asserts that his appellate counsel is ineffective for failing to assign as error that defendant's appointed counsel for sentencing was also ineffective for "not challenging the impermissible retroactive application that would occur if the provision of [ La. C.Cr.P. art.] 878.1 & [La.] R.S. 15:574.4(E) were to be applied to his collateral review sentence". In his second pro se assignment of error, defendant argues that the trial court's retroactive application of La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E) is impermissible and that he should have instead been sentenced to the most serious penalty for the next lesser offense of manslaughter.

We first note that the issue of the retroactive application of Miller has been addressed by the U.S. Supreme Court and the Louisiana Supreme Court. In Miller, supra , the United States Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders. Thereafter, in State v. Tate , 12-2763 (La. 11/5/13), 130 So.3d 829, cert. denied , --- U.S. ----, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014), the Louisiana Supreme Court held that Miller , which set forth a new rule of constitutional procedure for sentencing, was not subject to retroactive application and was to be applied prospectively only. The Tate court further held that La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E)(1), which codified the Miller rule, applied prospectively only. However, in January of 2016, the United States Supreme Court in Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), abrogated the Tate decision and held that Miller retroactively applied to defendants whose convictions and sentences became final prior to the Miller decision. On remand, in State v. Montgomery , 13-1163 (La. 6/28/16), 194 So.3d 606, 607, the Louisiana Supreme Court explained:

To implement Miller's "meaningful opportunity to obtain release" for those juveniles who commit murder but are not found to be irreparably corrupt, the Legislature in 2013 La. Acts 239 enacted La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E). Article 878.1 requires the District Court to conduct a hearing "[i]n any case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense ... to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E)." La. R.S. 15:574.4(E) then provides the conditions under which any person serving a sentence of life imprisonment for first or second degree murder committed under the age of 18 can become parole eligible, provided a judicial determination has been made the person is entitled to parole eligibility pursuant to Article 878.1.

In State v. Jones , 15-157 (La. App. 5 Cir. 9/23/15), 176 So.3d 713, this Court previously considered an argument identical to the one instantly raised by defendant, to wit: because the mandatory sentencing provision under which he was originally sentenced was ruled unconstitutional, his sentence is illegal and he should be resentenced according to the penalties provided for the lesser responsive verdict of manslaughter. In Jones , supra , the defendant was convicted of second degree murder and ultimately afforded a Miller hearing, after which he was sentenced to life imprisonment at hard labor with parole eligibility after 35 years, in accordance with La. R.S. 15:574.4(E). As in the instant case, the defendant argued on appeal that his sentence constituted an ex post facto application of the law because Miller was decided after his conviction and original sentencing. In affirming the defendant's sentence, we held, in pertinent part:

[w]e reject defendant's contention that the appropriate remedy is to resentence him to the next lesser responsive verdict of manslaughter. Rather, the remedy for noncompliance with Miller is to remand the matter for the sentencing court to reconsider defendant's sentence after conducting a hearing to consider defendant's youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles convicted of a homicide offense.

Jones , 176 So.3d at 720, [Citations omitted].

Similarly, in the instant case, defendant has been afforded relief permissible under Miller , pursuant to the trial court's proper application of La. C.Cr.P. art. 878.1 and La. R.S. 15:574.4(E). Accordingly, we find no merit to the defendant's argument. Relatedly, because this substantive issue is without merit, defendant's claim that his appellate counsel is ineffective for failure to assign as error that his counsel at sentencing was ineffective for failing to raise it is also without merit. See State ex rel. Roper v. Cain , 99-2173 (La. App. 1st Cir. 10/26/99), 763 So.2d 1, 5 (per curiam ), writ denied , 00-0975 (La. 11/17/00), 773 So.2d 733.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

In his third pro se assignment of error, defendant appears to argue that the district court judge erred in failing to make a downward departure in his sentence pursuant to State v. Dorthey , 623 So.2d 1276 (La. 1993). The record does not indicate that defendant filed a Dorthey motion prior to his Miller hearing. Nor did defendant object on the date of his sentencing to life imprisonment with parole eligibility upon serving 25 years of his sentence with credit for time served. Defendant also did not file a motion for reconsideration of sentence. Accordingly, we find that defendant is precluded from now raising this issue on appeal. See La. C.Cr.P. art. 881.1.

ERROR PATENT DISCUSSION

Defendant requests an error patent review. However, this Court routinely reviews 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. 5th Cir. 1990) regardless of whether defendant makes such a request. Nevertheless, defendant received an error patent review in his first appeal by this Court. Therefore, this error patent review is limited to the resentencing. See State v. Taylor , 01-452, p. 10 (La. App. 5 Cir. 11/14/01), 802 So.2d 779, 783-84, writ denied , 01-3326 (La. 1/10/03), 834 So.2d 426.

Our review reveals that the trial judge did not advise defendant of the provisions of La. C.Cr.P. art. 930.8. The commitment also does not reflect that the trial judge advised defendant of these provisions. If a trial court fails to advise, or provides an incomplete advisal, pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. See State v. Brooks , 12-226 (La. App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied , 12-2478 (La. 4/19/13), 111 So.3d 1030. Accordingly, we advise defendant by way of this opinion 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.

DECREE

Accordingly, for the reasons provided herein, defendant's sentence is affirmed and appellate counsel's motion to withdraw as attorney of record is hereby granted.

SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED

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

      First, on June 20, 2013, defendant filed a pro se motion to correct illegal sentence. The record does not show that a hearing was held on that motion. Next, on May 8, 2016, defendant filed another pro se motion to correct illegal sentence, again asking for a new sentencing hearing. On December 13, 2016, defendant filed a pro se memorandum regarding sentencing under Miller , supra , that was similar to his previously filed motions.

      In Bradford , supra , this Court adopted the procedures outlined in State v. Benjamin , 573 So.2d 528, 530 (La. App. 4 Cir. 1990), which were sanctioned by the Louisiana Supreme Court in State v. Mouton , 95-0981, pp. 1-2 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam).

      The United States Supreme Court reiterated Anders in Smith v. Robbins , 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      However, the trial court provided lengthy explanations and numerous reasons for his decision. The record reflects that the trial judge considered a number of factors at the Miller hearing, including: the testimony of defendant, the original record, positive letters of character reference from wardens at Angola, and "numerous certificates from the courses that the defendant took for self-improvement, bible studies, G.E.D., anger management, and as a registered tutor to help the other inmates that he was thrown into contact with."


author: JOHNSON, J.

text:
    Marilyn LINCOLN and Donald Lincoln, Jr. v. ACADIAN PLUMBING & DRAIN, LLC, et al.
    NO. 17-CA-684
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, MARILYN LINCOLN AND DONALD LINCOLN, JR., Leo J. Palazzo, Jason J. Markey
    COUNSEL FOR DEFENDANT/APPELLEE, ACADIAN PLUMBING & DRAIN, LLC, ET AL., James J. Kokemor
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson
   JOHNSON, J.

Plaintiffs appeal the granting of summary judgment in favor of Defendants, dismissing their lawsuit with prejudice. For the following reasons, we reverse.

FACTS & PROCEDURAL HISTORY

In 2013, homeowners, Donald and Marilyn Lincoln, hired Defendant, Acadian Plumbing & Drain, LLC ("Acadian"), to perform plumbing work under the slab of their home at 1701 Disney Drive in Metairie. Specifically, Acadian was hired to tunnel beneath the house and replace the drain lines. Midday on September 3, 2013, approximately one to two weeks after Acadian began work, Mrs. Lincoln walked outside her home and fell into the hole that had been dug by Acadian to access the pipes under the house. Mr. Lincoln and his son, Donald Lincoln, Jr. ("Donald"), were inside the home when they heard screaming and rushed outside to find Mrs. Lincoln in the hole. They lifted her out of the hole, and she was taken by ambulance to the hospital with an injury to her left hip or leg, which required surgery.

In August 2014, Mrs. Lincoln and her son, Donald, filed suit for damages against Acadian and its insurer, Liberty Mutual Insurance Company, alleging Acadian was negligent in failing to sufficiently secure or barricade the hole and in failing to warn of the danger. The petition alleged that Mrs. Lincoln fell into a hole that "bordered the walkway leading to the front porch area" and that Acadian "placed a temporary border and/or barricade consisting of tape that did not border the hole in its entirety, specifically the area that bordered the walkway leading to the front porch area." The petition further alleged that Acadian covered the subject hole with "temporary plywood" that was "thin, worn, and/or rotten and did not cover its hole in its entirety" and that, as Mrs. Lincoln walked to the front porch of her residence, "suddenly and without warning, the plywood shifted, gave way, and broke into several pieces, thereby causing Mrs. Lincoln to fall into the hole."

Thereafter, on March 10, 2016, Mrs. Lincoln passed away, and Donald filed a motion to substitute parties-plaintiff seeking to substitute the Estate of Marilyn Lincoln, Mr. Lincoln and Becki Lincoln Zschiedrich (Mr. and Mrs. Lincoln's daughter) in place of decedent. Additionally, Donald filed an amended and supplemental petition alleging that Mrs. Lincoln's death was the result of a stroke, caused by a blood clot that formed as a result of her leg injury sustained from her fall into the hole and the related subsequent surgery. The amended petition further asserted wrongful death claims on behalf of Mrs. Lincoln's surviving spouse and adult children.

On May 2, 2017, Acadian and its insurer filed a motion for summary judgment asserting that Plaintiffs could not prove Acadian breached any duty because the alleged defect was open and obvious to all and, thus, Acadian owed no duty. In support of the motion, Defendants attached the depositions of Mr. Lincoln and Donald in which they both testified that they all, including Mrs. Lincoln, knew the hole was there, that the hole had a piece of plywood over it, and the hole was surrounded, to some extent, by caution tape. In his deposition, Donald testified that Acadian started digging the hole/tunnel at issue about one to two weeks prior to the accident. He stated that Acadian put a "rotten board" over the hole that touched, but did not overlap, the concrete. Donald stated that, after he helped his mother out of the hole, he observed a flimsy and rotten piece of plywood that had fallen into the hole after Mrs. Lincoln's fall. Donald testified that he believes Mrs. Lincoln stepped on the edge of the board, which shifted, causing her and the board to fall into the hole. Donald stated that he kept the piece of plywood and provided it to his attorney in connection with this litigation.

In further support of their motion, Defendants also attached a photograph of the hole showing a piece of plywood partially covering the hole, caution tape around the area, and a safety cone. The record does not establish who took the photograph or when it was taken.

Plaintiffs filed an opposition to the motion for summary judgment, arguing that Acadian placed an unsecured thin, weathered, and rotten piece of plywood over the hole, concealing the danger presented. Plaintiffs further asserted that Acadian's barricade, consisting of cones and caution tape, did not border the hole in its entirety and allowed access to the "rotten" plywood, which overlapped the sidewalk, thereby creating a "booby trap." Plaintiffs maintained that Acadian's failure to use proper materials and barricades created an unreasonable risk of harm that was not open and obvious. In support of its opposition, Plaintiffs attached portions of the depositions of Russell Tapie, the owner of Acadian, and Eric Syrdal, who is presumably an employee of Acadian; an affidavit from Ladd Ehlinger, a licensed architect, in which he states Acadian failed to provide a safe walking surface over the excavation as required by the International Residential Code in effect in Jefferson Parish; and photographs of the area at issue relied upon by Mr. Ehlinger.

After a hearing on the motion for summary judgment, which consisted of argument of counsel and the introduction of the exhibits attached to the memoranda in support of and opposition to the motion, the trial court granted summary judgment in favor of Defendants and dismissed Plaintiffs' petition with prejudice. In its ruling, the trial court stated that the alleged defect was open and obvious to all and that Acadian did not owe a duty to protect against it. Plaintiffs filed this appeal challenging the propriety of summary judgment.

LAW & ANALYSIS

On appeal, Plaintiffs assign as error the trial court's granting of summary judgment, arguing that genuine issues of material fact exist as to whether the plywood used and the barricade erected around the hole dug by Acadian created an unreasonable risk of harm.

Appellate courts review summary judgments de novo using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Stone v. Lakes of Chateau North, LLC , 16-529 (La. App. 5 Cir. 12/14/16), 208 So.3d 1053, 1057, writ denied , 17-87 (La. 2/24/17), 216 So.3d 59. Summary judgment will be granted if the motion, memoranda, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Upton v. Rouse's Enterprise, LLC , 15-484 (La. App. 5 Cir. 2/24/16), 186 So.3d 1195, writ denied , 16-580 (La. 5/13/16), 191 So.3d 1057.

The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point to an absence of factual support for one or more elements essential to the adverse party's claim. La. C.C.P. art. 966(D)(1). The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or to prove that the mover is not entitled to judgment as a matter of law. Stone , supra .

In determining whether a genuine issue of material fact exists, we must consider the substantive law governing the litigation. In this case, Acadian had custody of the work area consisting of the hole it dug for the purpose of accessing the pipes under the house in order to replace/repair them and the area immediately surrounding the hole. Thus, the legal basis for Acadian's liability for injuries sustained by an alleged defect of the work site is premised on La. C.C. arts. 2317 and 2317.1, which provide:

Art. 2317. Acts of others and of things in custody
We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.
Art. 2317.1. Damage caused by ruin, vice, or defect in things
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

In determining whether liability exists under the facts of a particular case, courts apply a duty-risk analysis. Bufkin v. Felipe's La., LLC , 14-288 (La. 10/15/14), 171 So.3d 851, 855. Under this analysis, a plaintiff must prove: (1) the defendant had a duty to conform his conduct to a specific standard of care (duty element); (2) the defendant failed to conform his conduct to the appropriate standard of care (breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries; (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries; and (5) damages. Id.

"The threshold issue in any negligence action is whether the defendant owed the plaintiff a duty, and whether a duty is owed is a question of law." Bufkin , supra at 855. A duty is imposed on "one doing construction work to properly label, mark, or barricade places in the construction site that present an unreasonable risk of harm to persons using the area." Taylor v. Entergy Corp. , 01-805 (La. App. 4 Cir. 4/17/02), 816 So.2d 933, 940 ; See also Dupree v. City of New Orleans , 99-3651 (La. 8/31/00), 765 So.2d 1002, 1013 ("It is the duty of one with custody or garde of a thing presenting an unreasonable risk of harm to properly and adequately label, mark, or barricade places in that site so as to provide adequate and reasonable warning to persons using the area.")

When evaluating the duty owed relative to the condition of a thing in one's custody, the facts and surrounding circumstances of each case control and the test applied requires consideration of whether the thing was maintained in a reasonably safe condition for persons exercising ordinary care and prudence. Bufkin , 171 So.3d at 856. The custodian of a thing is only responsible for those injuries caused by a defect that presents an unreasonable risk of harm. Dupree , supra at 1012.

The question of whether a defect presents an unreasonable risk of harm is a mixed question of law and fact that is to be determined by the trier of fact. The inquiry is " 'a matter wed to the facts' and must be determined in light of facts and circumstance of each particular case." Broussard v. State, through Office of State Bldgs, Div. of Admin., 12-1238 (La. 4/5/13), 113 So.3d 175, 183.

To assist the fact-finder in determining whether the condition of a thing creates an unreasonable risk of harm, the Louisiana Supreme Court has adopted a risk-utility balancing test that weighs four factors: "(1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature." Broussard, supra at 184.

The second factor of the risk-utility test focuses on whether the allegedly dangerous or defective condition was obvious and apparent. Defendants generally have no duty to protect against an open and obvious hazard. Bufkin , 171 So.3d at 856. The obviousness and apparentness of a potentially dangerous condition are relevant factors to be considered under the duty-risk analysis. If the facts of a particular case show that the complained-of condition should be obvious to all who encounter it, then the condition may not be unreasonably dangerous, and the defendants may owe no duty to the plaintiff. Broussard, 113 So.3d at 184.

In this case, Acadian argues the hole was open and obvious and, thus, it had no duty to warn of the unreasonably dangerous condition of the hole. However, the issue is not whether the hole is unreasonably dangerous in and of itself because it is open and obvious, but rather whether the hole, covered with a thin, weathered piece of wood surrounded, in part, by caution tape, abutting the front sidewalk leading to Mrs. Lincoln's front door creates an unreasonable risk of harm to those walking in and out of the home.

Upon de novo review, we find genuine issues of material fact exist as to whether the manner in which Acadian barricaded and warned of the hole created an unreasonable risk of harm. In support of its motion for summary judgment, Acadian relied on the depositions of Mr. Lincoln and Donald and a photograph depicting the work site. Both Mr. Lincoln and Donald testified that they, as well as Mrs. Lincoln, were aware of the hole in the front yard. Additionally, both stated the hole was covered with a piece of plywood when the workers were not working, and that caution tape was tied to a PVC pipe around the hole; however, Donald stated the plywood was rotten and the caution tape did not fully surround the hole, leaving access to the hole.

While the photograph is illustrative in the way it depicts the work site regarding the location of the hole and the existence of caution tape and a piece of wood, it is not dispositive as to the condition of the work site at the time of Mrs. Lincoln's accident because it is unclear who took the photograph or when it was taken. Neither Mr. Lincoln nor Donald recalled the safety cone that is depicted in the photograph. Further, Donald testified he never saw the plywood overlapping the sidewalk as it does in the photo.

In opposition to Acadian's motion for summary judgment, Plaintiffs presented the deposition testimony of Russell Tapie, the owner of Acadian, and Eric Syrdal. Mr. Tapie testified regarding the measures Acadian uses to prevent people from entering a work site. He explained the excavation is covered with plywood and caution tape is used to surround the entire area so "nobody can get in." As previously noted, Donald testified that the caution tape did not fully encircle the hole. Mr. Tapie also noted that barricades are used in some cases, but that a pipe or multiple pipes are used when they are unable to use a barricade. During his testimony, there appeared to be a dispute as whether the piece of plywood retained by Plaintiffs after the accident and purported to be the plywood covering the hole at the time of Mrs. Lincoln's accident was provided or used by Acadian prior to the accident. In particular, Mr. Tapie noted that he never purchased quarter-inch or three-eighths-inch plywood and that Acadian would have used a full 4x8 sheet of wood. Donald testified the piece of wood he recovered immediately after his mother's accident was rotten and very thin.

Mr. Syrdal's deposition testimony addressed how he would have barricaded a work site. He explained caution tape is wrapped around poles to secure a perimeter around the hole and noted there would be about a one-foot buffer zone between the caution tape and the actual hole. He further explained that a whole 4x8 piece of plywood is not always used to cover the excavation, but that the plywood used is generally no smaller than a 4x4 section. Based on Mr. Tapie and Mr. Syrdal's testimony, there is an issue of whether Acadian followed its own policies in securing the work site.

Plaintiffs also presented the affidavit of Ladd Ehlinger, a licensed architect, who attested as to various safety standards for buildings and premises, including walkways. He stated that these standards dictate that coverings for an excavated hole must be capable of supporting at least twice the weight of a person walking over it, must be stable and unable to slip, and should be flush with exterior walkways. Mr. Ehlinger opined that Acadian's work site failed to comply with the required standards thereby creating a hazardous condition.

Based on the evidence presented, we find genuine issues of material fact as to whether the barricade erected or the manner in which the area was secured by Acadian created an unreasonable risk of harm; thus, we find summary judgment is precluded. We find this case distinguishable from Allen v. Lockwood , 14-1724 (La. 2/13/15), 156 So.3d 650, and Helwig v. H.P.B. Inc. , 15-389 (La. App. 5 Cir. 12/23/15), 182 So.3d 1169, which Acadian relies upon to support the granting of summary judgment, in that unlike Allen and Helwig , Plaintiffs in this case presented factual support for their claim that the manner in which the excavated hole was secured presented an unreasonable risk of harm.

In reversing the trial court's granting of summary judgment, we in no way express any opinion regarding the merits of Plaintiffs' claims. We simply conclude that Plaintiffs have presented factual support for their claim that the condition of the work site presented an unreasonable risk of harm so as to create genuine issues of material fact.

DECREE

For the foregoing reasons, we reverse the trial court's granting of summary judgment in favor of Acadian Plumbing & Drain, LLC and dismissing of Plaintiffs' petition, and remand the matter for further proceedings.

REVERSED

      It is noted that Mrs. Lincoln died before her deposition was taken.

      We note that since only portions of Mr. Syrdal's deposition were admitted into evidence, it is unknown who Mr. Syrdal is; however, based on the nature of his testimony, we surmise he is an employee of Acadian.