author: GRAVOIS, J.

text:
    STATE of Louisiana v. Howard JACKSON
    NO. 18-KA-319
    Court of Appeal of Louisiana, Fifth Circuit.
    November 07, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Terry M. Boudreaux, Gretna, Paul D. Connick, Jr.
    COUNSEL FOR DEFENDANT/APPELLANT, Lieu T. Vo Clark, Baton Rouge, HOWARD JACKSON
    DEFENDANT/APPELLANT, HOWARD JACKSON, In Proper Person
    Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.
   GRAVOIS, J.

Defendant, Howard Jackson, appeals his conviction and sentence for sexual battery, a violation of La. R.S. 14:43.1. For the reasons that follow, we affirm defendant's conviction and sentence, grant appellate counsel's motion to withdraw as counsel of record for defendant, and remand the matter for correction of the habitual offender Uniform Commitment Order as noted herein.

PROCEDURAL HISTORY

On December 11, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, Howard Jackson, with one count of indecent behavior with a juvenile under thirteen years of age, in violation of La. R.S. 14:81. Defendant pled not guilty at his arraignment on December 14, 2015.

On March 22, 2017, the State amended the bill of information to charge defendant with one count of sexual battery, in violation of La. R.S. 14:43.1. Immediately following the amendment, defendant withdrew his plea of not guilty, and after being advised of his Boykin rights, pled guilty to the amended charge. In accordance with the plea agreement, defendant was sentenced to ten years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court further advised defendant of his sex offender registration requirements, including his obligation to register as a sex offender for the remainder of his life.

On that same day, the State filed a habitual offender bill of information alleging that defendant was a second felony offender. Defendant stipulated to the habitual offender bill after being advised of his rights. The trial court then vacated defendant's original sentence, and pursuant to the habitual offender bill stipulation, resentenced defendant as a second felony offender under La. R.S. 15:529.1 to twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.

On January 19, 2018, defendant filed a motion to reconsider sentence which was denied by the trial court on January 25, 2018. On March 23, 2018, defendant filed a Uniform Application for Post-Conviction Relief (APCR), which the trial court construed as a request for an out-of-time appeal, which was granted on April 4, 2018. Defendant's appointed appellate counsel has now filed an appellate brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and has further filed a motion to withdraw as counsel of record for defendant. Additionally, defendant has filed a pro se supplemental brief challenging the charge brought against him, the voluntariness of his guilty plea, and the alleged ineffectiveness of his counsel.

FACTS

Because defendant's conviction was the result of a guilty plea, the facts underlying the crime of conviction are not fully developed in the record. Thus, the facts were gleaned from the factual basis provided by the State at the guilty plea proceeding where the State alleged that:

If the State proceeded to trial it would show beyond a reasonable doubt that on or between September 14th, 2015 and September 15, in the Year of Our Lord, Two Thousand and Fifteen, Mr. Jackson, while within the confines of Jefferson Parish did violate Louisiana Revised Statute 14:81, in that he, being over the age of seventeen and there being an age difference of greater than two years between the two, did commit a lewd and lascivious act upon or in the presence of a known juvenile, date of birth December 6, 2005, where the victim is under the age of thirteen, by fondling on the victim's breasts and/or pubic area with the intention of arousing or gratifying the sexual desires of either person.
However, Judge, as I've already put on the record, we did, pursuant to a plea negotiation, amend the bill to 14:4[3].1, sexual battery.

ANDERS BRIEF

Under the procedure adopted by this Court in State v. Bradford , 95-929 (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 , 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 for defendant.

In Anders , supra , the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her 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).

In Jyles , supra , 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel "has cast an advocate's eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration." Id.

When conducting a review for compliance with Anders , an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Bradford , supra , 676 So.2d at 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel's motion to withdraw and affirm the defendant's conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellate 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. Appellate counsel submits that defendant entered an unqualified guilty plea to the amended charge of sexual battery after being advised of his constitutional rights to a jury trial, to confront witnesses, and against self-incrimination. She indicates that defendant understood his rights and knowingly, intelligently, freely, and voluntarily waived them. She further maintains the trial court advised defendant of the sentencing range for the offense, as well as the sentence that would be imposed. Appellate counsel avers that defendant was sentenced pursuant to the plea agreement, precluding him from challenging his sentence on appeal.

Appellate counsel has filed a motion to withdraw as counsel of record for defendant which states she has made a conscientious and thorough review of the trial court record and can find no non-frivolous issues to raise on appeal and no rulings of the trial court which would arguably support the appeal. She further indicates that defendant has been notified regarding the filing of her motion to withdraw, as well as his right to file a pro se brief in this appeal. Additionally, this Court sent defendant a letter by certified mail informing him that an Anders brief had been filed and that he had until August 9, 2018 to file a pro se supplemental brief. Defendant filed a pro se supplemental brief signed on August 8, 2018 raising three assignments of error.

The State agrees with appellate counsel that, as shown by the record, the trial court conducted a Boykin colloquy with defendant during which the rights he waived were thoroughly explained. The State asserts that defendant was fully advised of the sentence that would be imposed and that defendant's sentence was within the statutory limits. Finally, the State agrees with appellate counsel that defendant voluntarily and intelligently entered a plea of guilty and that there are no non-frivolous issues to be raised on appeal.

An independent review of the record supports appellate counsel's assertion that there are no non-frivolous issues to be raised on appeal. The amended bill of information properly charged defendant and plainly and concisely stated the essential facts constituting the charged offense. It also sufficiently identified defendant and the crime charged. See generally La. C.Cr.P. arts. 464 - 466. As reflected by the minute entries, defendant appeared at each stage of the proceedings against him. As such, defendant's presence does not appear to present any issues that would support an appeal.

Further, defendant pled guilty as charged to the amended bill of information; he also stipulated to being a second felony offender as alleged in the habitual offender bill. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Turner , 09-1079 (La. App. 5 Cir. 7/27/10), 47 So.3d 455, 459. Additionally, an unconditional plea, willingly and knowingly made, waives any and all non-jurisdictional defects and bars a defendant from later asserting on appeal that the State failed to produce sufficient proof at the habitual offender hearing. State v. Schaefer , 97-465 (La. App. 5 Cir. 11/25/97), 704 So.2d 300, 304. No rulings were preserved for appeal under the holding in State v. Crosby , 338 So.2d 584 (La. 1976).

Additionally, a review of the record reveals no irregularities in defendant's guilty plea that would render it invalid. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. A guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. McCoil , 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

The record shows that defendant was aware that he was pleading guilty to one count of sexual battery in violation of La. R.S. 14:43.1. Defendant was also properly advised of his Boykin rights. On the waiver of rights form and during the guilty plea colloquy, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. Defendant placed his signature at the end of the waiver of rights form indicating that he understood he was waiving these rights and further affirmatively stated to the trial court during the colloquy that he understood that by pleading guilty he was waiving these rights.

Defendant was also informed that his guilty plea could be used to enhance a penalty for any future conviction. Defendant indicated that he understood the possible legal consequences of pleading guilty and confirmed that he had not been forced, coerced, or intimidated into entering his guilty plea. Further, defendant was informed during the colloquy of the sentencing range for the offense, as well as the actual penalty that would be imposed upon acceptance of his guilty plea. He was also advised by the trial court and on the waiver of rights form that he must comply with all sex offender registration requirements provided by law. Moreover, a factual basis was given by the State for the charged offense, after which defendant confirmed that the factual basis provided was true and correct and was the reason for his guilty plea. After his colloquy with defendant, the trial judge accepted defendant's guilty plea as knowingly, intelligently, and voluntarily made.

Further, a review of the habitual offender proceeding reveals that defendant was sufficiently advised of his habitual offender rights. The waiver of rights form, in conjunction with the colloquy between the trial judge and defendant, indicate that defendant understood that by stipulating to the allegations in the habitual offender bill, he was giving up his right to a hearing and his right to remain silent throughout the hearing. Defendant was also advised of the potential sentencing range as a second felony offender, as well as the actual sentence that would be imposed. Defendant indicated that he was satisfied with the way his attorney and the court had handled his case and that he had not been forced, coerced, or threatened into "pleading guilty." Defendant further indicated that he understood the possible legal consequences of "pleading guilty" and wished to "plead guilty." His stipulation was accepted by the judge as knowingly, intelligently, freely, and voluntarily made. By stipulating to the habitual offender bill, defendant waived his right to a hearing and to any possible non-jurisdictional defects. Defendant is barred from asserting on appeal that the State failed to produce sufficient proof at the habitual offender hearing when he waived the hearing. Schaefer , supra .

Finally, defendant's original sentence and enhanced sentence are within the sentencing ranges prescribed by the statutes. See La. R.S. 14:43.1 ; La. R.S. 15:529.1. Further, defendant's original and enhanced sentences were imposed pursuant to and in conformity with the plea agreements. La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea. State v. Moore , 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46 ; State v. Washington , 05-211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. Likewise, this Court has consistently recognized that La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Robinson , 15-661 (La. App. 5 Cir. 2/24/16), 186 So.3d 1269, 1272 (citing State v. Bolton , 02-1034 (La. App. 5 Cir. 3/11/03), 844 So.2d 135, 142, writ denied , 03-1159 (La. 11/14/03), 858 So.2d 417 ); State v. Dickerson , 11-236 (La. App. 5 Cir. 11/15/11), 80 So.3d 510, 521.

The transcript reflects that the trial judge advised defendant, during the colloquy, that if she accepted defendant's guilty plea on the underlying offense, the State would file a habitual offender bill alleging him to be a second felony offender and that the court would vacate his original sentence, and pursuant to La. R.S. 15:529.1, would resentence him to "twenty years at hard labor in the Department of Corrections without benefit of probation, parole or suspension of sentence." Later, after defendant's guilty plea was accepted by the trial court and defendant's original sentence was imposed, during the stipulation to the habitual offender bill, the trial court informed defendant that if his stipulation was accepted, he would be sentenced to "twenty years without benefit of probation or suspension of sentence"-neglecting to state the requisite parole restriction previously advised with respect to the enhanced sentence. The transcript further reflects that after accepting defendant's stipulation to the habitual offender bill, the trial court vacated defendant's original sentence and resentenced him to twenty years at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant did not object to the restriction of parole when the trial judge sentenced him as a habitual offender. Moreover, the habitual offender waiver of rights form additionally provides, "the sentence I will receive is 20 years without benefit of probation or suspension of sentence."

Because defendant was advised at least once regarding the parole restriction required by law on his enhanced sentence, which was then ultimately imposed by the trial court, we find the trial court's failure to advise him a second time of the parole restriction that would be imposed on his enhanced sentence does not affect the voluntariness of his stipulation. Moreover, this Court, in conducting its Anders review, has consistently held that the failure of the trial court to advise a defendant that their sentence would be required to be served without benefits does not affect the voluntariness of the guilty plea or habitual offender stipulation. State v. Reynard , 17-375 (La. App. 5 Cir. 12/13/17), 234 So.3d 238 ; State v. Davis , 17-81 (La. App. 5 Cir. 6/29/17), 224 So.3d 1211 ;

State v. Shelby , 16-634 (La. App. 5 Cir. 3/15/17), 215 So.3d 944 ; State v. Byers , 16-627 (La. App. 5 Cir. 2/8/17), 213 So.3d 491, writ denied , 17-0592 (La. 11/28/17), 229 So.3d 936.

However, the waiver of rights form associated with defendant's underlying conviction for sexual battery indicated in a handwritten notation that defendant would be multiple billed and would receive "20 yr DOC w/benefits." This notation is in direct contradiction to the advisal provided by the trial court during the colloquy.

La. C.Cr.P. art. 556.1(A)(1) provides that, prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty and the maximum possible penalty. Violations of La. C.Cr.P. art. 556.1 that do not rise to the level of Boykin violations are subject to harmless error analysis. State v. Guzman , 99-1528 and 99-1753 (La. 5/16/00), 769 So.2d 1158, 1164-66 ; State v. Gilliam , 01-748 (La. App. 5 Cir. 1/15/02), 807 So.2d 1024, 1027, writ denied , 02-0512 (La. 11/1/02), 828 So.2d 562. The Louisiana Supreme Court has clearly held that the core Boykin constitutional requirements have never been extended to include advice with respect to sentencing. Guzman , supra , 769 So.2d at 1164. In determining whether a violation of Article 556.1 is harmless, the inquiry is whether the defendant's knowledge and comprehension of the full and correct information would have likely affected his willingness to plead guilty. Gilliam , supra , 807 So.2d at 1027.

In State v. Burford , 39,610 (La. App. 2 Cir. 5/11/05), 902 So.2d 1190, writ denied , 05-1573 (La. 1/27/06), 922 So.2d 545, the appellate court, in addressing the defendant's assignments of error regarding her sentencing, noted that some facts asserted in the defendant's appellate brief for purposes of the excessive sentence claim were, in reality, issues regarding the validity of the plea agreement. The court cited La. C.Cr.P. art. 556(B)(1), noting that while the court properly advised the defendant of the sentencing range, it incorrectly indicated that the sentence would be subject to the benefit of probation, parole, or suspension of sentence, which was an incorrect statement of the law. The defendant was convicted of attempted armed robbery, which must be served without the benefit of parole, probation, or suspension of sentence. The appellate court cited State ex rel. LaFleur v. Donnelly , 416 So.2d 82 (La. 1982), where the Supreme Court held that although the defendant's guilty plea was made voluntarily, it was not knowingly and intelligently entered due to his mistaken understanding of when he would be eligible for parole; thus, his convictions and sentences were reversed and set aside.

However, the Burford court noted that in State v. Phayarath , 03-0838 (La. App. 3 Cir. 2/4/04), 866 So.2d 332, writ denied , 04-0718 (La. 6/18/04), 876 So.2d 804, the defendant, who raised the question of the validity of his guilty plea for the first time on appeal on grounds that he thought his sentence would be with the benefit of parole, failed to produce evidence in the record that showed he was misinformed as to parole eligibility. The Burford court then stated that nevertheless, inasmuch as these issues were not presented in the appeal in the posture of an infirm guilty plea, but rather in terms of thwarted expectations regarding her sentence, the issue of the validity of the defendant's guilty plea was not currently before the court. The court found that the issue was one that should be addressed in a petition for post-conviction relief because an APCR creates the opportunity for a full evidentiary hearing.

In State v. Woodard , 09-1029 (La. App. 3 Cir. 4/7/10), 30 So.3d 1187 (unpublished opinion), the Third Circuit, on an Anders review, found that the plea of guilty and waiver of rights form found in the record set forth an incorrect range for sentencing. However, the court went on to also note that the defendant was advised at the plea hearing of the correct sentencing range by the court and was actually sentenced to the minimum penalty under the statute. Thus, the court held defendant received a legal sentence and was not prejudiced by the error.

Here, as previously discussed, the record reflects that the trial court advised defendant of his Boykin rights as well as his habitual offender rights and that defendant indicated his willingness to plead guilty and stipulate to the habitual offender bill throughout the colloquy. Based on the record as a whole, there was no inducement regarding the restrictions of benefits in this case on the enhanced sentence, nor were there any assurances regarding the restrictions of benefits that were crucial to defendant's stipulation. Also, unlike Burford and LaFleur , defendant was informed by the trial court during the colloquy that his enhanced sentence would be without benefits and the sentence imposed was in conformity with the trial court's advisal, which did not draw an objection by defendant at the plea hearing or in a motion to withdraw guilty plea. Under these circumstances, we find that defendant's rights were not affected with respect to the noted discrepancy contained in the waiver of rights form.

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, appellate counsel's motion to withdraw as counsel of record for defendant is hereby granted.

PRO SE ASSIGNMENT OF ERROR NUMBER ONE

Improper charging of offense by the State

In his first pro se assignment of error, defendant avers that the State improperly charged him. He claims that he should have been charged with violating his "registration order for being around juveniles" and then later should have been charged with sexual battery. He maintains that it was impermissible for the State to charge him with sexual battery without first charging him with "breaking the law for being around juveniles at his home."

First, as previously noted, defendant pled guilty as charged to the amended bill of information which properly charged him. No motions to quash were lodged by defendant. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. Turner , supra . Accordingly, we find defendant has waived any challenge to his guilty plea based upon the alleged improper charge of sexual battery brought against him that he now raises on appeal.

Additionally, even if preserved, defendant's allegation lacks merit. La. C.Cr.P. art. 61 provides, in pertinent part: "[T]he district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute." Thus, under La. C.Cr.P. art. 61, the State has the discretion to decide the cases to prosecute. Accordingly, there is no support for defendant's contention that the State should have charged him with a violation of his "registration order" prior to instituting prosecution for the amended offense of sexual battery. This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

Involuntary guilty plea

In his second pro se assignment of error, defendant argues that his guilty plea was involuntarily obtained without an understanding that he could have entered an Alford plea which would have preserved his "constitutional rights."

First, the record reflects that defendant's guilty plea was knowingly, intelligently, and voluntarily entered into free of any coercion, inducement, or force, as was more fully previously discussed.

Second, defendant's statement that his plea was involuntary because he was unaware his "constitutional rights" would have been preserved had he pled guilty pursuant to Alford is misplaced. An individual accused of a crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. Alford , 400 U.S. at 37, 91 S.Ct. 160. There is no material difference between a guilty plea that refuses to admit commission of a criminal act and a plea containing a protestation of innocence when a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt. Id.

Here, the State provided a factual basis at defendant's plea hearing and defendant admitted his guilt after the factual basis was presented. Thus, we find there is nothing in the record to suggest that defendant's guilty plea was involuntarily entered. Accordingly, this assignment of error is without.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

Ineffective assistance of counsel

In his final pro se assignment of error, defendant maintains that his counsel was ineffective for failing to inform him that an Alford plea could have been entered on his behalf, preserving his constitutional rights, and for failing to call credible witnesses (i.e. , his brother Charles Jackson, and his sisters Charlene Jackson and Mattie Oliney) who would have supported his case.

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

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

Here, the record contains sufficient evidence to rule on the merits of defendant's claims and they should be addressed in the interest of judicial economy.

First, as previously set forth in our review of defendant's second pro se assignment of error, under Alford , an accused may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, or even if his guilty plea contains a protestation of innocence, when he intelligently concludes that his interests require a guilty plea and the record strongly evidences guilt. Here, the record establishes that defendant admitted his guilt at his plea hearing and did not maintain his innocence. Thus, we find defendant has failed to show how his counsel's performance was deficient in failing to inform him that an Alford plea could have been entered, or that the alleged deficiency prejudiced him. See State v. Hoppens , 13-948 (La. App. 5 Cir. 4/23/14), 140 So.3d 293, 302, writ denied , 14-1856 (La. 9/11/15), 176 So.3d 414.

Next, while this Court often refuses to review a defendant's ineffective assistance claim on appeal when related to whether their counsel has adequately investigated their case because of the limited record on appeal, defendant here has failed to sufficiently detail facts in support of his allegation to warrant relegation of his claim to post-conviction proceedings.

In State v. Kron , 07-1024 (La. App. 5 Cir. 3/25/08), 983 So.2d 117, writ denied , 08-813 (La. 10/24/08), 992 So.2d 1039, the defendant filed a pro se brief in which he argued his attorneys were ineffective because they failed to investigate his case or formulate a defense to prove his innocence. The defendant's brief detailed facts and witnesses the defendant claimed could have discredited the version of events presented by the police. The defendant complained that his attorneys failed to file any pretrial motions or to request any evidentiary hearings. He specifically alleged his attorneys should have filed a motion to suppress because his arrest and the officers' subsequent discovery of evidence were the result of an illegal investigatory stop. This Court determined the record was insufficient to address the defendant's claims, since the only transcript contained in the record was that of the plea hearing. This Court relegated the defendant's claims to post-conviction proceedings. See also Hoppens , supra ; State v. Mitchell , 08-629 (La. App. 5 Cir. 1/13/09), 7 So.3d 744, 750, writ denied , 09-0254 (La. 10/30/09), 21 So.3d 270 ; State v. Stewart , 03-976 (La. App. 5 Cir. 12/30/03), 862 So.2d 1271, 1277-78.

In the present case, while defendant lists three family members he claims have "very important information that could support" his case, he provides no detail as to the "very important information" they allegedly possess. Without such specificity, we find defendant's ineffective assistance of counsel claim in this regard lacks merit. Thus, this assignment of error is without merit.

ERRORS PATENT REVIEW

Defendant requests an errors 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. Upon review, we find only one matter that requires corrective action.

There is a discrepancy between the habitual offender Uniform Commitment Order and the transcript. Specifically, the habitual offender Uniform Commitment Order incorrectly reflects the offense date as September 14, 2015. However, the record reflects that the offense occurred on or between September 14, 2015 and September 15, 2015. Accordingly, we remand the matter for correction of the habitual offender Uniform Commitment Order to accurately reflect the noted discrepancy. We also direct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected habitual offender Uniform Commitment Order to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2) and to the Department of Corrections' legal department. See State v. Doucet , 17-200 (La. App. 5 Cir. 12/27/17), 237 So.3d 598.

CONCLUSION

For the foregoing reasons, defendant's conviction and sentence are affirmed. Appellate counsel's motion to withdraw as counsel of record for defendant is granted. The matter is remanded to the trial court for correction of the habitual offender Uniform Commitment Order as described above.

AFFIRMED; MOTION TO WITHDRAW GRANTED; REMANDED FOR CORRECTION OF HABITUAL OFFENDER UNIFORM COMMITMENT ORDER

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

      Defendant was also ordered to pay $150.00 in fees to both the Indigent Defender Board and the Jefferson Parish Sheriff's Office.

      During the guilty plea colloquy, the trial judge failed to specifically refer to defendant's privilege against self-incrimination. However, the trial court at the commencement of the colloquy asked defendant whether his attorney had advised him of his right against self-incrimination and whether he understood that he was waiving this right by pleading guilty. Additionally, at the conclusion of the colloquy, the trial court confirmed with defense counsel that he had in fact advised defendant of his rights, including his right against self-incrimination, and whether he was satisfied that defendant entered his plea of guilty knowing all of the consequences. Finally, the waiver of rights form signed by defendant, his attorney, and the trial court, reflects an express and knowing waiver of defendant's privilege against self-incrimination.
      While it is preferable for the trial judge to conduct a colloquy with the defendant to ascertain the validity of the plea, such a colloquy may not be indispensable, as long as the record contains some other affirmative showing to support the plea. State v. Halsell , 403 So.2d 688, 690 (La. 1981). A written form containing a waiver of rights is a part of the record and can be examined to determine the free and knowing nature of the plea. State v. Dunn , 390 So.2d 525 (La. 1980). In Dunn , the Louisiana Supreme Court noted that, during the guilty plea colloquy, the trial judge failed to specifically refer to the defendant's privilege against self-incrimination. The Supreme Court noted that a written waiver of rights form may be considered in determining whether the defendant was adequately "informed" of his rights. Id. at 527. The Dunn court considered the waiver of rights form that was initialed and signed by the defendant a "sufficient affirmative showing in the record of an express and knowing waiver of defendant's privilege against self-incrimination." Id. This Court held similarly in State v. Hebert , 02-884 (La. App. 5 Cir. 12/30/02), 838 So.2d 30, 31-34 (transcript of the plea colloquy and the well-executed waiver of rights form constituted sufficient affirmative showing on the record that the defendant knowingly waived his privilege against self-incrimination without specific advisal of right against self-incrimination from the trial judge), and State v. Cole , 04-615 (La. App. 5 Cir. 3/1/05), 900 So.2d 15, 23-24 (explanation by defense counsel and a well-executed waiver of rights form were sufficient to support a knowing and voluntary guilty plea even without specific advisal of the right against self-incrimination from the trial judge).
      Accordingly, although the trial court did not specifically advise defendant of his right against self-incrimination during the colloquy, we find that this issue does not present a non-frivolous issue for appeal because defendant's plea colloquy, along with the well-executed waiver of rights form, constitutes a sufficient affirmative showing on the record that defendant knowingly waived his privilege against self-incrimination.

      Written notification of the sex offender registration requirements was also provided to defendant.

      After providing the factual basis for the charged offense, the State noted that the bill was amended pursuant to a negotiated plea to sexual battery.

      At the time the offense was committed, a conviction under La. R.S. 14:43.1 carried a term of imprisonment, with or without hard labor, without the benefit of parole, probation, or suspension of sentence, for not more than ten years, for which defendant received a ten-year sentence at hard labor without benefits. Also, the applicable term of imprisonment for a second felony offender at the time of defendant's enhanced sentence was "for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction."See La. R.S. 15:529.1(A)(1). Thus, as a second felony offender, defendant was subject to a sentencing range of five to twenty years imprisonment for his enhanced sentence on his underlying conviction for sexual battery, for which he was sentenced by the trial court to twenty years imprisonment at hard labor without benefits.

      The restrictions on parole eligibility imposed on habitual offender sentences under La. R.S. 15:529.1"are those called for in the reference statute." State v. Esteen , 01-879 (La. App. 5 Cir. 5/15/02), 821 So.2d 60, 79, n. 24, writ denied , 02-1540 (La. 12/13/02), 831 So.2d 983. When the underlying offense carries a parole restriction, as it does in the present case, the habitual offender sentence is to likewise be imposed without parole. See State v. Smith , 09-100 (La. App. 5 Cir. 8/25/09), 20 So.3d 501, 509, writ denied , 09-2102 (La. 4/5/10), 31 So.3d 357.

      The Burford court stated that "[t]he court is required under La. C.Cr.P. art. 556(B)(1) to discuss the nature of the charge to which the plea is entered and the mandatory minimum and maximum sentence."

      In LaFleur , the defendant's attorney testified that he advised the defendant at the time of his guilty plea that he would be eligible for parole after two years on a six-year sentence. The transcript of the sentencing hearing contained no reference to the ineligibility for parole, probation, or suspension of sentence on his firearm charge. The Supreme Court noted that a detailed account of the possible sentencing exposure by the trial court could have prevented any misunderstanding with regard to parole eligibility on the firearm charge. LaFleur , 416 So.2d at 84.

      Research of this issue has revealed a lack of jurisprudence on the exact factual scenario presented in the instant matter, i.e. , where the waiver of rights form provides incorrect information regarding the restriction of benefits, and the transcript provides the correct information. This may be premised on the fact that courts may look beyond the guilty plea colloquy to an expanded record to determine whether a voluntary waiver of rights occurred. See State v. Dickerson , 10-672 (La. App. 5 Cir. 4/26/11), 65 So.3d 172, 180. Here, because the plea colloquy establishes a voluntary waiver of rights, it is not necessary to turn to the expanded record.

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


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    Adrian WILLIAMS v. SUPERVALU, INC.
    NO. 18-CA-143
    Court of Appeal of Louisiana, Fifth Circuit.
    November 07, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, ADRIAN WILLIAMS, DaShawn P. Hayes
    COUNSEL FOR DEFENDANT/APPELLEE, SUPERVALU, INC. AND MORAN FOODS, LLC D/B/A SAVE-A-LOT, LTD, John T. Roethele, Megan P. Foreman
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   WICKER, J.

In this slip and fall case, plaintiff-patron appeals the judgment in favor of merchant-defendant rendered following a bench trial. For the following reasons, we affirm the trial court judgment.

Factual and Procedural Background

On September 14, 2016, plaintiff, Adrian Williams, filed suit in the Twenty-Fourth Judicial District Court for the Parish of Jefferson against Supervalu, Inc. and Moran Foods, LLC d/b/a Save-A-Lot (hereinafter "Save-A-Lot"), for personal injuries allegedly arising from a September 26, 2015 slip and fall accident at the Airline Drive Save-A-Lot store location. The matter proceeded to trial on October 10, 2017, before the Honorable Ellen Kovach.

At trial, plaintiff testified that she was grocery shopping in the produce department of the Airline Drive Save-A-Lot store on September 26, 2015. As she walked through the produce section, she spoke briefly with a store employee, later identified as George Gibbs, stocking grapes onto the produce shelves. After speaking with Mr. Gibbs, as she walked away, she slipped on a purple grape on the floor and fell to the ground. Plaintiff testified that she hit her shoulder and busted her lip on the metal railing of the produce shelving, hit both knees onto the floor, and lost consciousness immediately after the fall. Plaintiff testified that she has no knowledge of how the grape fell onto the floor or for how long the grape was on the floor prior to her fall.

Plaintiff testified that she sustained head, neck, back, shoulder, and knee pain from the accident. She treated with Southshore Physicians Group for her soft tissue injuries until she was referred for orthopedic care for her shoulder and knee pain. However, plaintiff testified that although she still suffered from pain at the time of trial, she could not afford to treat with an orthopedic specialist. She testified that she has not sought medical treatment for accident-related pain since February of 2016.

Scott Hammonds, the Save-A-Lot store manager, testified at trial that he was present on the date of plaintiff's fall and he responded to the produce department after the accident. Mr. Hammonds testified that he spoke with plaintiff, reviewed the surveillance videos from the time plaintiff entered the store through the time of her fall, and asked plaintiff to complete an incident report. Mr. Hammonds stated that when he reviewed the surveillance video, he observed Mr. Gibbs walk through the produce department to stock grapes onto the shelves. He stated he did not observe Mr. Gibbs drop any grapes on the floor while carrying the tray of grapes to restock. Furthermore, he testified that he observed another female customer pushing a cart in the produce section, who was putting a bag of grapes in her cart before the accident. He saw the same female customer taking the grapes out of her bag and snacking on the grapes approximately one minute before the accident. The video surveillance was introduced into evidence and played at trial. Mr. Hammonds pointed out to the court that, immediately after the other female customer pushed her cart to leave the produce section, a reddish grape appears on the floor. Immediately thereafter, another customer is seen walking towards the produce shelving and steps on the grape that is on the floor. Seconds later, plaintiff slips on the same grape. Mr. Hammonds testified, and the surveillance video reflects, that the grape was on the floor approximately 25 seconds before plaintiff's fall.

After the accident, Mr. Hammonds completed a video incident report, in which he concluded, "Customer slipped on grape. Camera shot shows grape on floor 30 seconds prior [to] incident. Grape fell from cart. Customer, white female, red shirt." He concluded based upon the video surveillance that the grape plaintiff stepped on fell out of another customer's cart soon before plaintiff's fall. The incident report further reported that plaintiff complained of a busted lip and left knee pain.

Mr. George Gibbs, the store's produce manager at the time of the accident, also testified at trial. He testified that he arrived to the store at 7:00 a.m. on the morning of the accident and began restocking produce. Concerning the grapes, he testified that he retrieved in total four crates of grapes from the warehouse. He explained that each crate contains cardboard trays of grapes from various manufacturers, which are each wrapped in cellophane packaging, and are to be restocked onto the produce shelves. The surveillance video reflects that Mr. Gibbs was restocking grapes at the time of plaintiff's fall.

Dr. Theodore Irra with Southshore Physicians Group testified that he treated plaintiff for soft tissue injuries, including knee pain, from October 2, 2015, through December 14, 2015. Plaintiff reported that she slipped and fell in a grocery store and that she suffered from retrograde amnesia after the fall. Dr. Irra testified that his records reflect that plaintiff reported "waking up with her face pressed against the freezer. Patient had knot on her bottom lip and a small cut." Although plaintiff's other soft-tissue injury complaints resolved, plaintiff continued to complain of right shoulder and knee pain, which caused Dr. Irra to order an MRI of plaintiff's right knee and right shoulder. Dr. Irra testified that plaintiff's right knee MRI reflected a likely sprain of the anterior meniscus and a tear in the lateral meniscus. The right shoulder MRI reflected a probable nerve impingement. Dr. Irra discharged plaintiff on February 16, 2016, and referred her to an orthopedist for her continuing shoulder and right knee pain. Dr. Irra testified that it is more likely than not that plaintiff's right shoulder and knee injuries were caused by the accident at issue.

At the conclusion of trial, the trial judge ruled in favor of defendant and dismissed plaintiff's suit with prejudice. The trial judge found that plaintiff's fall was caused by a grape that fell from the cart of another customer and, thus, the dangerous condition was not created by defendant. Further, she found that defendant did not have constructive notice of the unreasonable condition because the grape remained on the floor for only 25 seconds prior to plaintiff's fall. Thus, the trial judge determined that plaintiff failed to meet her burden to prove defendant's liability under La. R.S. 9:2800.6.

Discussion

On appeal, plaintiff assigns as error the trial court's judgment in favor of defendant, claiming that plaintiff proved that defendant created or had constructive notice of the dangerous condition-the grape on the floor. Plaintiff further contends that the trial judge erred in finding that plaintiff failed to prove that her alleged personal injury damages were causally related to the accident at issue.

In a slip or fall case against a merchant, a plaintiff must prove the essential elements of a standard negligence claim in addition to the requirements under La. R.S. 9:2800.6. Sheffie v. Wal-Mart Louisiana LLC , 13-792 (La. App. 5 Cir. 2/26/14), 134 So.3d 80, 83-84, writ denied , 14-0881 (La. 6/20/14), 141 So.3d 813 ; Melancon v. Popeye's Famous Fried Chicken , 10-1109 (La. App. 3 Cir. 3/16/11), 59 So.3d 513, 515.

La. R.S. 9:2800.6, in pertinent part, provides:

(B) In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury,
death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage. Lousteau v. K-Mart Corp. , 03-1182 (La. App. 5 Cir. 3/30/04), 871 So.2d 618, 623, writ denied , 04-1027 (La. 6/25/04), 876 So.2d 835. Although the owner of a commercial establishment has an affirmative duty to keep the premises in a safe condition, he is not the insurer of the safety of his patrons. Trench, supra.

Under La. R.S. 9:2800.6, a plaintiff has the burden of proving that the condition presented an unreasonable risk of harm, that the risk of harm was reasonably foreseeable, and that the merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence. Id. Because a plaintiff must prove each element under La. R.S. 9:2800.6, the failure to prove any element is fatal to the plaintiff's cause of action. Trench, supra ; Flowers v. Wal-Mart Stores, Inc. , 12-140 (La. App. 5 Cir. 7/31/12), 99 So.3d 696, 699.

"Constructive notice" means that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. Trench, supra . To carry her burden of proving this temporal element required under La. R.S. 9:2800.6(B)(2), a plaintiff must present "positive evidence" of the existence of the condition prior to the accident. Sheffie , 134 So.3d at 84 ; Barrios v. Wal-Mart Stores, Inc. , 00-2138 (La. App. 1 Cir. 12/28/01), 804 So.2d 905, 907, writ denied , 02-0285 (La. 3/28/02), 812 So.2d 636. Though there is no bright-line time period, a plaintiff must show that " 'the condition existed for such a period of time' " and that the defendant-merchant should have noticed the defect in exercising reasonable care. Sheffie , 134 So.3d at 84, citing White v. Wal-Mart Stores, Inc. , 97-0393 (La. 9/9/97), 699 So.2d 1081, 1084 ; Burns v. Sedgwick Claims Mgmt. Servs. , 14-421 (La. App. 5 Cir. 11/25/14), 165 So.3d 147, 153.

The testimony and evidence introduced at trial, including the store surveillance video, supports the trial judge's factual findings that another customer, the female in the red shirt, caused the grape to fall onto the floor approximately 25 seconds before plaintiff's fall. Therefore, we find no error in the trial court's factual finding that defendant-merchant did not create nor have constructive notice of the unreasonably dangerous condition. Consequently, we find no error in the trial court's determination that plaintiff failed to meet her burden under La. R.S. 9:2800.6. Accordingly, the trial court judgment is affirmed.

AFFIRMED

      Plaintiff testified that she suffered prior injuries related to complications during a 2011 surgery, which left her in a coma for two months and resulted in nerve damage to her right side. She sees a neurologist for her nerve damage resulting from the surgery. She also testified that her Save-A-Lot fall at issue was not the result of her vertigo or nerve damage.

      Additionally, plaintiff seeks review of the denial of plaintiff's motion in limine to restrict the deposition testimony of Dr. Theodore Broussard, introduced into evidence at trial, concerning the causation and extent of plaintiff's personal injury damages. Because we find the trial judge did not err in finding defendant owed no liability to plaintiff for her damages, we pretermit discussion of this assignment of error.


author: MOLAISON, J.

text:
    ASI FEDERAL CREDIT UNION v. CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON SYNDICATE 1414 SUBSCRIBING TO POLICY FINFR1503374
    NO. 18-CA-164 18-CA-306
    Court of Appeal of Louisiana, Fifth Circuit.
    November 07, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, ASI FEDERAL CREDIT UNION, Philip D. Nizialek, Jacqueline M. Brettner, Sarah E. Stogner, New Orleans
    COUNSEL FOR DEFENDANT/APPELLANT, CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON SYNDICATE 1414 SUBSCRIBING TO POLICY FINFR1503374, Gary A. Hemphill, Arthur R. Kraatz, Justin C. Warner, New Orleans
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and John J. Molaison, Jr.
   MOLAISON, J.

In this declaratory judgment action involving an insurance coverage dispute under an Armored Car Cargo Liability Policy, defendants, Certain Underwriters at Lloyd's London Subscribing to Policy FINFR1503374 ("Underwriters"), appeal the trial court's December 14, 2017 judgment granting a motion for partial summary judgment filed by plaintiff, ASI Federal Credit Union ("ASI"), and denying a motion for summary judgment filed by Underwriters. For the reasons that follow, finding the admissible evidence insufficient to resolve all genuine issues of material fact regarding whether Underwriters' policy provides or precludes coverage to ASI, we reverse the trial court's judgment in part, affirm in part, and remand the matter for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On July 18, 2016, ASI filed suit against Underwriters seeking to have the court declare that the Armored Car Cargo Liability Policy issued by Underwriters to its insured, LeoTran Armored Security, LLC ("LeoTran"), affords coverage for a loss sustained by ASI as a result of LeoTran's tortious acts. According to ASI's petition, ASI is a not-for-profit local credit union headquartered in Jefferson Parish, and uses automated teller machines ("ATMs"), both at its branch offices and at several of its freestanding locations. In 2012, ASI outsourced the servicing of its ATMs to a third party contractor, Bank Equipment Solutions/ATM Worldwide, LLC ("ATMWW"), purportedly pursuant to a Brand ATM Agreement. In turn, ATMWW contracted with armored car carriers to service ASI's ATMs by transporting cash to and from ASI's ATMs. ATMWW entered into such a service agreement with LeoTran in August of 2013 to service ASI's ATMs, which LeoTran did until December 2015. Though no contractual privity existed between ASI and LeoTran, relying on La. C.C. arts. 1978 and 1982, ASI alleged that, pursuant to ASI's contract with ATMWW and ATMWW's contract with LeoTran, ASI was LeoTran's customer, and a third party beneficiary to the contract between ATMWW and LeoTran.

LeoTran, a Louisiana limited liability company that provides, among other things, armored car security services, is owned by its founder and principal, Leonard Tolleson. According to ASI, Mr. Tolleson-on behalf of the company, and in accordance with the licensing requirements for armored car carriers set forth in La. R.S. 37:3276(E), in addition to the obligations LeoTran assumed under its service agreement with ATMWW-purchased an Armored Car Cargo Liability Policy from Underwriters with an effective policy period of April 15, 2015 to April 15, 2016 (the "Policy"). ASI avers that Mr. Tolleson purchased the Policy to cover LeoTran's liability associated with servicing ATMs and other enumerated risks associated with its business operations.

In its petition, ASI alleges that in December 2015, employees of LeoTran picked up $100,000 of ASI cash from the Federal Reserve for which there has never been an accounting. Additionally, ASI avers that LeoTran employees removed approximately $593,380 in cash from several ASI ATMs it serviced, and absconded with an additional $688,820 in case reserves that LeoTran was holding in trust for future cash delivery to the ASI ATMs it serviced. In total, ASI contends that $1,382,200 of its money disappeared while in the care, custody, and control of LeoTran. ASI reported the missing funds to the Jefferson Parish Sheriff's Office after which an investigation ensued. To date, ASI claims that $34,200 has been recovered and returned to ASI, but $1,348,000 remains missing.

On December 22, 2015, ATMWW submitted a claim to Underwriters on behalf of ASI under the Policy seeking recovery of any and all monies that were missing while in LeoTran's care. In response to ASI's claim under the Policy, Underwriters stated that "there is no relief that [Underwriters] can provide [to ASI] at this stage." When Underwriters refused to make payment to ASI under the Policy, ASI filed the instant action seeking a declaratory judgment that Underwriters has an obligation to provide insurance coverage to ASI under the Policy for the loss of $1,348,000 of ASI's money that purportedly went missing while in LeoTran's care that has not been recovered or returned to ASI.

On August 23, 2016, Underwriters filed an answer to ASI's petition denying coverage and asserting various coverage defenses. Before discovery had commenced, ASI moved for partial summary judgment seeking a declaration that Underwriters' policy provided coverage for its claims against LeoTran. In response, Underwriters filed a cross-motion for summary judgment, seeking dismissal of ASI's claim. The parties' competing motions came for hearing on October 19, 2017, after which the matter was taken under advisement. Thereafter, on December 14, 2017, the trial court issued judgment granting ASI's motion for partial summary judgment finding the Policy provided coverage for ASI's claim against Leotran; Underwriters'

cross-motion was denied. Incorporated in the December 14, 2017 judgment, without accompanying written reasons, the trial court stated:

[T]he Court finds that property of ASI Federal Credit Union was lost or damaged while in the care, custody, and control of LeoTran, and that ASI Federal Credit Union was a customer of LeoTran. Further, the Court finds that the Directors and Officers Exclusion Clause is inapplicable to this matter.

Underwriters now appeals the trial court's granting of ASI's motion for partial summary judgment and denying its motion for summary judgment. In particular, Underwriters argues that the trial court erred by improperly admitting the affidavits submitted by ASI to support its partial motion for summary judgment when those affidavits were not based on the affiants' personal knowledge; that the trial court erred in finding that ASI met its threshold burden of establishing that LeoTran is liable to it; and, that the trial court erred in denying Underwriter's motion for summary judgment and finding the Policy provides coverage for ASI's alleged loss. For the following reasons, finding the admissible summary judgment evidence insufficient to resolve all genuine issues of material fact regarding whether the Policy either provides or precludes coverage to ASI for its alleged loss, we reverse the trial court's granting of ASI's motion for partial summary judgment, affirm the trial court's denial of Underwriters' motion for summary judgment, and remand the matter for further proceedings.

STANDARD OF REVIEW

Appellate courts review the granting of summary judgment de novo using the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Hogg v. Chevron USA, Inc. , 09-2632 (La. 7/6/10), 45 So.3d 991, 996.

LAW AND DISCUSSION

Applicable Law

A motion for summary judgment is a procedural device used to avoid a full-scale trial where there is no genuine issue of material fact. Bell v. Parry , 10-369 (La. App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The motion "shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). "The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection has been made. " [Emphasis supplied.] La. C.C.P. art. 966(D)(2).

The affidavits submitted by the mover must be scrutinized closely. Myers v. Omni Hotel, Inc. , 94-2004 (La. App. 4 Cir. 4/13/95), 654 So.2d 771, 774. Moreover, supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein and the basis of affiant's knowledge. La. C.C.P. art. 967(A). It is not sufficient for an affiant to merely declare that he has personal knowledge of a fact. South Central Bell Tel. Co. v. Rouse Co. of Louisiana , 590 So.2d 801, 803 (La. App. 4th Cir. 1991).

The party moving for summary judgment bears the burden of proof. La. C.C.P. art. 966(D)(1). However, if the movant will not bear the burden of proof at trial, the movant's burden on a motion for summary judgment does not require him to negate all essential elements of the adverse party's claim, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Id. ; Patrick v. Iberia Bank , 05-783 (La. App. 5 Cir. 3/14/06), 926 So.2d 632, 634. If the adverse party fails to produce factual support sufficient to establish a genuine issue of material fact, summary judgment should be granted. La. C.C.P. art. 966(D)(1).

The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Robinson v. Rockhill Ins. Co. , 13-860 (La. App. 5 Cir. 4/23/14), 139 So.3d 1031, 1032-1033. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage should be afforded. Id. , 139 So.3d at 1033. An insurer seeking to avoid coverage through summary judgment bears the burden of proving that some provision or exclusion applies to preclude coverage. Id.

La. C.C.P. arts. 966 and 967 do not permit a party to utilize unsworn and unverified documents as summary judgment evidence. Thus, a document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, is not of sufficient evidentiary quality to be given weight in determining whether there are remaining genuine issues or material fact. Marino v. Parish of St. Charles , 09-197 (La. App. 5 Cir. 10/27/09), 27 So.3d 926, 930 ; Input/Output, Inc. v. Wilson Greatbatch, Inc. , 07-570 (La. App. 5 Cir. 1/22/08), 977 So.2d 109, 115-116, writ denied , 08-0397 (La. 4/18/08), 978 So.2d 350. Therefore, in meeting the burden of proof, unsworn or unverified documents, such as letters, emails, or reports, annexed to motions for summary judgment are not self-proving and will not be considered; attaching such documents to a motion for summary judgment or to a pleading does not transform such documents into competent summary judgment evidence. See Marino , 27 So.3d at 930-931. Put simply, if the supporting affidavits and documents presented by the moving party are insufficient to resolve all material issues of fact, summary judgment is not appropriate. South Central Bell Tel. Co. , 590 So.2d at 803-804.

ASI's Motion for Partial Summary Judgment

A. Underwriters' Armored Car Cargo Liability Policy

In support of its contention that Underwriters' policy insuring LeoTran affords coverage to ASI for its alleged loss, ASI, who is not a named insured, relies on the following provisions, in pertinent part:

1. This policy covers the liability of the insured, assumed by the contract or otherwise, for loss or damage to property, as defined in clause 2, within the Continental United States, excluding Alaska, arising from any cause whatsoever, in transit or otherwise, including any act or omission of the insured or any of its employees, or anyone acting in its service ....
2. Wherever used in this policy "property" shall be deemed to mean: ...Money (currency and coin)....
3. Loss if any, payable to the insured and/or its customers as their respective interest may appear ....
4. Cover[age] hereunder is to attach from the time property is delivered into the insured's care and their responsibility commences and is to continue until delivered to the consignee or his duly authorized agent, as the case may be, or in the event of non-delivery, until returned to the consignor or customer.
* * *
13. In consideration of the premium charged, it is specifically understood and agreed that when the insured make contracts providing that they will call at an [ATM] owned by the customer for the purpose of providing service, this policy shall cover the liability of the assured for loss resulting from the unauthorised [sic] entry into the ATM or any safe, strong box or money chest used in conjunction with said ATM. Coverage under this policy shall include losses resulting from unauthorized use of a master key, dial rim key, combination, electronic or computerized entry systems for the unlawful abstraction of money and checks.

Thus, under the pertinent Policy provisions, in order to determine whether ASI is entitled to summary judgment that the Policy provides coverage, we must first determine that the supporting affidavits and documents presented by ASI are sufficient to resolve all material issues of fact regarding whether ASI-who is not a named insured under the Policy-qualifies as a "customer" of LeoTran or a third party beneficiary of the ATMWW/LeoTran contract, and whether ASI's alleged "loss or damage to property" occurred while in LeoTran's care prior to its delivery or return to ASI. If the affidavits and documents are not sufficient, summary judgment is not appropriate. South Central Bell Telephone Company , 590 So.2d at 803. Even though summary judgments are now favored, any doubt as to a dispute regarding a genuine issue of material fact must be resolved against summary judgment and in favor of trial on the merits. Semco, LLC v. Grant Ltd. , 16-342 (La. App. 5 Cir. 5/31/17), 221 So.3d 1004, 1032, writ denied , 17-1291 (La. 11/6/17), 229 So.3d 475.

B. ASI's Summary Judgment Evidence

In connection with its motion and supporting memorandum, ASI submitted eleven exhibits, which included a copy of the Policy, and the affidavits of Brian Menard, the vice president of operations of ASI, and Fabian Blache, III, the executive secretary and chief administrative officer of the Louisiana State Board of Private Security Examiners ("LSBPSE"). Over the objection of Underwriters, the trial court admitted the affidavits of Mr. Menard and Mr. Blache. The remaining eight exhibits, which consisted of various records, reports, letters, emails, and video evidence, were attached to Mr. Menard's affidavit. These eight exhibits, objected to by Underwriters, were excluded. Consequently, the trial court did not consider these documents in ruling on ASI's motion, and they will, likewise, not be considered by this Court upon our de novo review.

Underwriters argue that the trial court erred in admitting the affidavits of Mr. Menard and Mr. Blache in support of ASI's motion because the affidavits were not made on the affiants' personal knowledge. The requirement of La. C.C.P. art. 967 that "affidavits shall be made on personal knowledge" has been strictly enforced; it is insufficient for an affiant to merely declare that he has "personal knowledge" of a certain fact. The affidavit must affirmatively establish that the affiant is competent to testify to the matters stated by a factual averment showing how he came by such knowledge. Midland Funding, LLC v. Trahan, 12-562 (La. App. 5 Cir. 2/21/13), 110 So.3d 1154, 1157 ; THH Props., Ltd. P'ship v. Hill , 41,038 (La. App. 2 Cir. 6/2/06), 930 So.2d 1214, 1219. "Personal knowledge" means something the witness actually saw or heard, as distinguished from what he leaned from some other source. Hibernia Nat'l Bank v. Rivera , 07-962 (La. App. 5 Cir. 9/30/08), 996 So.2d 534, 539. The purpose of the "personal knowledge" requirement is to limit the affidavit to facts which the affiant saw, heard, or perceived with his own senses. Id. Portions of affidavits not based on personal knowledge of the affiant should not be considered by the trial court in deciding a motion for summary judgment. Id.

Where in the affidavit the affiant is merely identifying business records sought to be introduced into evidence, and the affiant is qualified to identify those records, this Court has held that the personal knowledge requirements of La. C.C.P. art. 967 are satisfied. Whitney Nat. Bank v. Reliable Mailing , 96-968 (La. App. 5 Cir. 4/9/97), 694 So.2d 479, 481. In such a case, the affiant is not required to show that he personally prepared the business records, or that he had direct, independent, first-hand knowledge of the contents thereof; the affiant's attested familiarity with the records by virtue of his position is sufficient. Id. ; Rivera , 996 So.2d at 540.

In the case sub judice , with respect to Mr. Menard's affidavit, Underwriters contend that rather than being based on personal knowledge as required by La. C.C.P. art. 967, the information contained in Mr. Menard's affidavit was based on his inspection of unidentified "documentation, received or generated by ASI in the regular course of business" and, as such, should have been excluded. To the contrary, relying on this Court's decision in Rivera , supra , ASI argues that the affidavit of Mr. Menard satisfied the personal knowledge requirement. Specifically ASI avers that Mr. Menard, as vice president of operations and the corporate representative of ASI, was attesting as to the business records attached thereto and, consequently, was "not required to show that he personally prepared the business records, or that he had direct, independent, first-hand knowledge of the contents thereof."

Our review of Mr. Menard's affidavit, however, shows that it was not submitted by ASI solely for purposes of certifying that the records attached thereto were documents kept in the regular course of ASI's business so as to establish their admissibility under the code of evidence. The affidavit contained factual statements-whose proof is necessary in order to establish coverage for ASI's alleged loss under the Policy-which Mr. Menard attempted to substantiate with the "business records" he attached, in lieu of his personal knowledge as to those facts. Moreover, assuming the records attached to Mr. Menard's affidavit are the same records "received or generated by ASI in the regular course of business" that he inspected and relied upon in preparing his affidavit, each one of those "business records" were excluded by the trial court as inadmissible summary judgment evidence. Consequently, each factual statement to which Mr. Menard attested based solely on his inspection of "business records" that were excluded, must be disregarded. Absent those portions of Mr. Menard's affidavit, the remaining factual statements (that were not specifically based on an attached document that was excluded), include:

5. ASI leases automated teller machines ("ATMs"), which are branded with ASI's logo, throughout southeast Louisiana ("ASI branded ATMs").
6. LeoTran is an armored car company that transported and stored cash for ASI - servicing ASI branded ATMs - from September 2013 until December 2015.
7. ASI considers itself LeoTran's customer.
8. Underwriters issued an Armored Car Cargo Liability Policy to LeoTran Armored Security. A copy of the Armored Car Policy received by ASI is attached as Exhibit 1 to ASI's motion for summary judgment.
18. After January 2016, ASI was not contacted again by Tom Brownfield, McLarens, Marshall & Sterling Insurance, or any other representative of Underwriters to investigate the loss.
19. ASI did not receive any requests for information from Underwriters or its representative before litigation commenced.
20. ASI has not received a reservation of rights letter from Underwriters.
21. ASI has not received an acceptance or denial of its claim from Underwriters.

As to these remaining factual statements attested to by Mr. Menard, we find they fail to resolve all genuine issues of material fact regarding whether ASI was a "customer" of LeoTran under the Policy or a third party beneficiary of the service agreement between ATMWW and LeoTran, or whether the alleged loss of ASI's property occurred while it was in LeoTran's care. First, the self-serving statement that "ASI consider[ed] itself Leotran's customer" does not mean that ASI was, in fact, LeoTran's customer. Whether ASI was a customer of Leotran is an issue of material fact, and it is to be weighed by the trier of fact to determine whether coverage of ASI's loss is triggered under the Policy.

Similarly, we find that the factual statements contained in Mr. Menard's affidavit that are admissible do not establish or resolve the issue of whether ASI was a third party beneficiary to the ATMWW/LeoTran service agreement. Though copies of the Brand Service Agreement between ASI and ATMWW, and the service agreement between ATMWW and LeoTran, are on file in the record-which agreements may have assisted in establishing the relationships between the various parties-neither agreement was certified and/or attached to an affidavit and, as such, had no evidentiary value as to ASI's motion for partial summary judgment. See La. C.C.P. art. 966(A)(4), art. 966(D)(2), or art. 967(A). Documents that are not certified and not attached to an affidavit are not of sufficient evidentiary quality to be given weight in determining whether there exists a genuine issue of material fact. Harris v. Dunn , 45,619 (La. App. 2 Cir. 9/22/10), 48 So.3d 367, 371.

We further find that the admissible factual statements in Mr. Menard's affidavit do not establish or resolve all genuine issues of material fact as to whether ASI sustained a "loss or damage to property" that occurred while the property was in LeoTran's care, custody, and control, which finding is necessary in order to trigger coverage for ASI's loss under the Policy. Underwriters dispute this fact, and the factual statements contained in Mr. Menard's affidavit that are admissible do not address this issue.

We also find that the affidavit of Mr. Blache does not resolve these factual issues that remain in dispute. Even if we were to assume that the facts contained in Mr. Blache's affidavit are based on his own personal knowledge-an issue we need not consider-none of the facts set forth in his affidavit address, much less prove, that "property of ASI ... was lost or damaged while in the care, custody, and control of LeoTran ... and that ASI ... was a customer of LeoTran," facts which ASI must prove in order for ASI to prevail on its motion for partial summary judgment. ASI has failed to do this through admissible summary judgment evidence.

Without the appropriate supporting documentation, ASI is not entitled to summary judgment under La. C.C.P. art. 966(A)(3). See Input/Output, Inc. v. Wilson Greatbatch, Inc. , supra . Whether ASI was a customer of LeoTran or a third party beneficiary to the service agreement between ATMWW and LeoTran, and whether ASI's purported loss occurred while in LeoTran's care triggering coverage under the Policy are still in dispute. Thus, we find that partial summary judgment in favor of ASI was improper and the trial court erred in granting it.

Underwriters' Motion for Summary Judgment

Underwriters filed a motion for summary judgment on the basis that, even if ASI could establish LeoTran's liability for the loss or damage to its property, the Policy does not provide coverage for ASI's alleged loss. Specifically, Underwriters argues that the Policy's "Directors & Officers Exclusion Clause" clearly and unambiguously excludes coverage for ASI's claim, i.e. , the alleged theft of ASI's cash by the owner of LeoTran. The particular policy exclusion provides:

This policy does not cover loss directly resulting from any act(s), or error(s) or omissions(s) of Directors or Officers of the Assured except when such Director or Officer is performing acts coming within the scope of the usual duties of an employee of the Assured.

Though interpretation of an insurance policy is usually a legal question that can properly be resolved by summary judgment, summary judgment declaring a lack of coverage under the policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed facts shown by the evidence supporting the motion, under which coverage could be afforded. Smith v. Reliance Insurance Company , 01-888 (La. App. 5 Cir. 1/15/02), 807 So.2d 1010, 1014 ; Mangerchine v. Reaves , 10-1052 (La. App. 1 Cir. 3/25/11), 63 So.3d 1049, 1053. Keeping in mind the principle that insurance policies should be interpreted to effect, not deny, coverage ( Yount v. Maisano , 627 So.2d 148, 151 (La. 1993) ), because we cannot say on the record before us that there is no reasonable interpretation of the Policy under which coverage would be triggered and afforded to ASI, we find the trial court's denial of Underwriters' motion for summary judgment was proper.

Moreover, an insurer seeking to avoid coverage through summary judgment must show that some exclusion applies that unambiguously excludes coverage. Smith , supra . Though Underwriters contend that the clear language of the Policy's "Directors & Officers" exclusion "unambiguously" precludes coverage to ASI for its loss, we disagree. Under the facts as alleged by ASI-that ASI's cash went missing while in the care of LeoTran and has not yet been recovered or returned to ASI-absent evidence of collusion between ASI and LeoTran, it is not "unambiguously" clear that the Policy's directors and officers exclusion bars recovery thereunder to ASI-an innocent third party-though it may preclude coverage to LeoTran under the same set of facts. For these reasons, Underwriters is not entitled to summary judgment.

CONCLUSION

Accordingly, finding that genuine issues of material fact remain as to whether the armored car cargo liability policy issued by Underwriters to LeoTran provides or precludes coverage for ASI's alleged loss, we reverse that portion of the trial court's judgment granting ASI's motion for summary judgment, affirm that portion of the judgment that denies Underwriters' motion for summary judgment, and remand the matter for further proceedings.

REVERSED IN PART, AFFIRMED IN PART, REMANDED.

      The denial of a motion for summary judgment is an interlocutory judgment and is appealable only when expressly provided by law. However, where, as here, there are cross-motions for summary judgment raising the same issues, this Court will review the denial of a summary judgment in addressing the appeal of the granting of the cross-motion for summary judgment. Waterworks Dist. No. 1 of DeSoto Parish v. La. Dep't. of Pub. Safety & Corr. , 16-0744 (La. App. 1 Cir. 2/17/17), 214 So.3d 1, 3 n. 1, writ denied , 17-0470 (La. 5/12/17), 219 So.3d 1103 ; Marseilles Homeowners Condo Ass'n v. Broadmoor, LLC. , 12-1233 (La. App. 4 Cir. 2/27/13), 111 So.3d 1099, 1103 n. 2. See also Ferguson v. Bocskov , 07-924 (La. App. 5 Cir. 3/25/08), 983 So.2d 162, 164, wherein this Court reviewed the denial of the defendant's cross-motion for summary judgment in the context of the appeal from the grant of the plaintiff's cross-motion on the same issue.

      Neither a copy of the Brand ATM Agreement between ASI and ATMWW, nor a copy of the service agreement between ATMWW and LeoTran were submitted by ASI in support of its motion for partial summary judgment.

      Underwriters' original devolutive appeal of the December 14, 2017 judgment, on the basis that the judgment was final and appealable pursuant to La. C.C.P. art. 1915(A)(5), was docketed as 18-CA-164. Out of an abundance of caution, Underwriters moved the trial court to certify the judgment as final and appealable under La. C.C.P. art. 1915(B), and then filed a second devolutive appeal, which was docketed as 18-CA-306. The briefing deadlines were set in the 18-CA-164 appeal. Thereafter, as a matter of procedure, the 18-CA-306 appeal was consolidated with the 18-CA-164 appeal. Accordingly, there is only one substantive appeal for review before this Court.

      The Policy does not expressly define "customer."

      Except for the Policy, Underwriters objected to all of ASI's exhibits, including the affidavits of Mr. Menard and Mr. Blache.

      In its appellee brief, ASI avers this Court should consider the evidence the trial court erred in excluding below. However, because ASI did not answer Underwriters' appeal or separately appeal the trial court's ruling excluding this evidence, ASI is now precluded from challenging the ruling here. "[A]n appellee who desires to have the judgment modified, revised, or reversed in part must file an answer to the appeal." Badalamenti v. Jefferson Guar. Bank , 99-1371 (La. App. 5 Cir. 4/25/00), 759 So.2d 274, 277.

      Underwriters did not object to the admissibility of the Policy.

      Underwriters, in its answer to ASI's petition, admitted that "there was at all relevant times a written contract in place between ATMWW and Leo[T]ran, which contract is the best evidence of its terms and conditions." We find this statement insufficient to qualify as an admission or stipulation by Underwriters (which would obviate the certification requirement) as to the specific ATMWW/LeoTran contract to which ASI claims it was a third party beneficiary.