author: JAMES F. McKAY III, Judge. JONES, J.,

text:
    STATE of Louisiana v. Glenn JOSEPH.
    No. 2009-KA-1169.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2010.

      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Nisha Sandhu, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Appellant.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, Louisiana, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge PAUL A. BONIN).
   JAMES F. McKAY III, Judge.

| )The State of Louisiana appeals the April 4, 2009 district court judgment granting the defendant, Glenn Joseph’s motion to quash count two of the bill of information.

Based on the deficiencies and inconsistencies found in the record before this Court, we vacate the judgment and the defendant’s pleas of guilty and remand the matter to the district court.

STATEMENT OF CASE

Glenn Joseph, the defendant, was charged by bill of information on March 27, 2009 in case number 484-680 with one count each of distribution of cocaine and possession with intent to distribute cocaine. He was arraigned on April 2, 2009, and as per district court rules the matter was transferred on that same day to Section D of the Orleans Parish Criminal Court to follow case number 479-937. On April 7, 2007, the appellee appeared before the district court with counsel. The record before this Court contains a copy of the minute entry generated on April 7, 2009, which indicates that the defendant pled guilty to count one to La. R.S. 40:967(B)(1), as charged. After waiving all delays he was sentenced to serve two years with the Department of Corrections with credit for time served, concurrent with case number 479-937. The defense then filed an oral motion to quash count two only, which the court granted. The state objected and gave oral notice of its intent to seek relief.

12The facts of this case are not germane to this appeal.

DISCUSSION

This Court takes judicial notice that the record before us is seriously defective and deficient. The transcript appears to be incomplete. The Plea of Guilty form dated April 7, 2009, does not accurately reflect the information in the minute entry for the date of April 4, 2009. The April 4, 2009 minute entry states “AS TO COUNT 1, RS 40:967(B)(1) A40D DISTRIBUTION CRACK, GUILTY AS CHARGED.” The WAIVER OF CONSTITUTIONAL RIGHTS PLEA OF GUILTY FORM shows that Glenn Joseph pled guilty to the crime of distribution of cocaine and possession with intent to distribute cocaine. The original bill of information dated March 24, 2009, charged Glenn Joseph with two counts. Count 1 charged that the defendant DID WILLFULLY AND UNLAWFULLY DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE TO WIT: COCAINE. Count 2 charged that the defendant DID WILLFULLY AND UNLAWFULLY POSSESS WITH INTENT TO DISTRIBUTE A CONTROLLED DANGEROUS SUBSTANCE, TO WIT; COCAINE. There is confusion here that is irreparable on appeal.

Furthermore, the minute entry indicates that Glenn Joseph, in case number 484-680, pled guilty and notes what appears to be a Boykin colloquy but on a closer inspection of the transcript no Boykin colloquy was found. There is another minute entry dated April 17, 2009, which indicates that “the court took notice that the minute entry from 04-07-2009 is incorrect” in that it failed to note that the State took notice of intent to seek an appeal on 04-07-2009.

| (¡Further, there is the issue presented by the State in this appeal concerning the district court’s judgment quashing Count 2 of the March 24, 2009 bill of information.

The court ruled as follows:

Based upon the police report and based upon information I have, I feel that in this bill of information charging him with distribution and possession with intent, that it is all within the res gestate of the same crime. So, therefore I think that it is duplicitous, and I think that he can charged with one of these crimes, but it is part and parcel of the elements of the crime. They found the stash he sold. So I am granting the motion to quash. You have a right to take an appeal.

La.C.Cr.P. art. 536 states that a motion to quash “shall be in writing, signed by the defendant or his attorney, and filed in open court or in the office of the clerk of court.” Oral motions to quash are properly not considered. State v. Moore, 93-1632, (La.App. 3rd Cir.5/4/94) 640 So.2d 561; State v. Fryer, 96-2745 (La.App. 4 Cir. 2/19/97), 691 So.2d 712.

In the matter of State v. Mathias, (unpub)99-2735 (La.App. 4 Cir. 11/15/00), 775 So.2d 717, Mathias was charged by bill of information on September 1, 1997, with possession of cocaine, a violation of La. R.S. 40:967(C). After that case was nolle prosequied, the State reinstated the charges on May 18, 1999. On July 12, 1999, the trial court granted the oral motion to quash on condition that the motion be supplemented in writing within seven days. There was no evidence that the record was so supplemented. In its unpublished opinion, this Court ruled:

We find merit in the State’s assignment of error contending that the motion to quash was erroneously granted. La. C.Cr.P. art. 536 provides in pertinent part that “[a] motion to quash shall be in writing, signed by the defendant or his attorney, and filed in open court or in the office of the clerk of court.” La. C.Cr.P. art. 536. Because an oral motion to quash does not comply with |4the provisions of article 536, it cannot be considered by the court. See State v. Francis, 345 So.2d 1120, 1124(La.), cert. denied, 434 U.S. 891, 98 S.Ct. 267, 54 L.Ed.2d 177 (1977); see also State v. Shezbie, 332 So.2d 243, 244 (La.1976) (noting that “the trial court does not abuse its discretion by refusing a motion to quash because it is not in writing”).

Mathias, at p. 1.

The record reveals that no written motion to quash was ever filed. Without a written motion to quash being presented to the district court, based on the above jurisprudence the trial court erred by quashing count two. More than the lack of a written motion to quash, by the very language of the Waiver of Constitutional Rights/Plea of Guilty Form, the defendant appears to have pled guilty as charged to both Count 1 and Count 2 as evidenced by the hand written notation on the form before this Court. If indeed, the appellee pled guilty to both counts, there would have been no need to quash Count 2. Hence, the record presents an inherent inconsistency that serves neither the State nor the defendant.

The record before this Court is replete with inconsistencies and deficiencies. The lack of a full Boykin colloquy and the inconsistency presented by the purported quashing of a count to which the appellee may have pled guilty makes it impossible for this Court to justiciable rule on the matter. Therefore, based on the principals of fundamental fairness and judicial economy, we vacate the defendant’s pleas of guilty. We also vacate the district’s court’s judgment quashing of Count 2 of the bill of information. We remand the matter in its entirety to the district court for further proceedings consistent with this opinion.

JUDGMENT VACATED; REMANDED

JONES, J.,

Concurs.

hi respectfully concur in the opinion of the majority.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Marcus Allen MAZE.
    No. KA09-1299.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.
    Don M. Burkett, Sabine Parish District Attorney, Many, LA, for Appellee, State of Louisiana.
    James Beal, Louisiana Appellate Project, Jonesboro, LA, for Appellant, Marcus Allen Maze.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY and JAMES T. GENOVESE, Judges.
   AMY, Judge.

The Defendant, Marcus Allen Maze, was charged by bill of information, district court docket number 64,387, with simple criminal damage to property over $500.00, a violation of La.R.S. 14:56, and with aggravated criminal damage of property, a violation of La.R.S. 14:55. Pursuant to a plea agreement in district court docket number 64,386, the charges in docket number 64,387 were dismissed.

On September 8, 2009, the Defendant filed a motion in the trial court seeking an appeal of the charges in district court docket number 64,386, as well as the charges that were dismissed in district court docket number 64,387. On March 5, 2010, this court issued a rule to show cause why the appeal in the above-captioned case should not be dismissed, as the charges at issue were dismissed. The Defendant responded, conceding that the charges were dismissed, and thus, the matter is moot.

Accordingly, the appeal in the above-captioned case is hereby dismissed.

APPEAL DISMISSED.

      . On February 25, 1010, the State filed a motion and order to dismiss the charges in docket number 64,387 because they were not dismissed on the record. The order was signed by the trial court that same day.


author: PETERS, J.

text:
    STATE in the Interest of H.M.D. and J.J.W.
    No. 09-0508.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Nick Pizzolatto, Jr., Louisiana Department of Social Services, Office of Community Services, Lake Charles, LA, for Plaintiff/Appellee, Louisiana Department of Social Services.
    Robert J. Lounsberry, Sr., Attorney at Law, Jennings, LA, for Defendant/Appellant, J.D.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   PETERS, J.

This matter is before us on remand from the supreme court. When we previously reviewed it, J.D. had appealed a judgment terminating her parental rights to her two minor children, J.J.W. (born January 24, 2005) and H.M.D. (born November 30, 2005). We reversed the judgment and remanded the matter to the trial court for further proceedings. State in the Interest of H.M.D. and J.J.W., 09-508 (La.App. 3 Cir. 10/7/09), 20 So.3d 564. Relying on the five-day service requirement of La.Ch.Code art. 1021, we found the trial court erred in denying J.D.’s motion for continuance when domiciliary service of notice of the hearing occurred only two days prior to the adjudication hearing.

The supreme court granted a supervisory writ filed by the State of Louisiana through the Department of Social Services, Office of Community Services (referred to hereafter as “the state” or “OCS”), set aside our reversal and remand, and remanded the matter to this court for consideration of the remaining assignments of error. State in the Interest of H.M.D. and J.J.W., 09-2373 (La.1/8/10), 26 So.3d 129. The supreme court found that La.Ch.Code art. 1021 applies only to the initial answer hearing in a juvenile proceeding, and that the trial court did not abuse its discretion in denying the continuance. Pursuant to the supreme court’s instruction, we now address the remaining assignments of error: (1) that the trial court erred in concluding that J.D. had not substantially complied with the requirements of her case management plan, and (2) that the trial court erred in concluding that there was no reasonable expectation of future significant improvement.

^DISCUSSION OF THE RECORD

The record establishes that OCS first became involved with J.D. and her children on April 12, 2006, and that trial on the termination issue occurred on February 12, 2009. At trial, the state introduced two exhibits and called four witnesses to testify. Although her attorney participated in the termination hearing, J.D. did not attend the hearing. Her attorney did, however, introduce three exhibits. Upon completion of the evidence, the trial court rendered judgment terminating J.D.’s parental rights.

Despite OCS’s mid-April 2006 involvement, the judicial system did not become involved until July 20, 2006, when OCS sought and received an instanter oral order from the trial court authorizing OCS to take the two children into custody. The affidavit filed in support of the July 20 order was signed by Kristi Gott, identified only as “an employee” of OCS’s Jefferson Davis Parish office. In her affidavit, Ms. Gott asserted that on July 20, the OCS office had received “a report of dependency and lack of adequate shelter” concerning the two children. The trial court set a continued custody hearing for July 25, 2006.

|SJ.D. appeared at the July 25, 2006 hearing, accompanied by her court-appointed counsel. Without admitting to any specific allegation, she admitted that her children were in need of care and consented to OCS’s continued custody. Based on this assertion, the trial court confirmed its July 20 oral order and continued custody of the children in the state pending further orders of the court.

The next step in the process occurred on August 18, 2006, when J.D. and representatives of OCS met and entered into a case management plan. The plan restated the original reasons for' removal and stated that J.D. desired to be reunited with her children and that OCS was seeking relative placement while “working with [J.D.] in order for her [sic] be able to regain custody of her children.” In another section of the case management plan, OCS identified as its goal “Reunification.”

On September 7, 2006, the state filed a petition to have the children adjudicated in need of care. The trial court set the matter for hearing on September 14, 2006. On that date, J.D. appeared with her attorney and entered an admission that her children were in need of care, again without admitting to any specific allegations. Based on this admission, the trial court adjudicated the children in need of care pursuant to La.Ch.Code art. 606 and approved the August 18 case management plan.

The next meeting to review the case management plan occurred on January 4, 2007. However, the record before us does not contain a copy of the ease management plan generated from this meeting. Instead, it contains a written summary of OCS’s position with regard to future actions. The summary is dated January 17, 2007, and was not prepared by OCS officials, but by the state’s attorney. That report suggests that J.D. “was jumping from shelter to shelter” after the initial order and had resided, not in Jefferson Davis Parish, but in Lafayette Parish, under the supervision of the |4Lafayette Office of OCS, between July 2006 and October 2006. According to the report, in October 2006, J.D. contacted Jessica Frey, her OCS worker in Jefferson Davis Parish, to inform the worker that she was living back in the parish. Based on these assertions, OCS recommended that the children remain in its custody and supervision.

The trial court held a review hearing on January 18, 2007. The minutes of that hearing reflect that J.D. and her attorney were present and voiced no objections to the recommendations of the January 17 report or the request for continued custody. The trial court then ordered that OCS maintain custody of the children, advised J.D. of her obligation to complete all the requirements of the case management plan, and approved the case plan dated January 17, 2007. The trial court also ordered that the next review hearing be held July 19, 2007.

On July 6, 2007, OCS and J.D. met for another administrative review of the case management plan. With regard to J.D.’s progress, the report generated from this meeting states that:

[J.D.] has successfully secured a home for herself with utilities connected and has furnished it. She has kept the agency informed about any changes in her contact information. [J.D.] completed a psychological evaluation on January 25, 2007 as requested. She also participated in a Parenting Wise-ley program consisting of three class periods. [J.D.] has attended most of the visits with her children but she has missed some also.
[J.D.] does not bring the children gifts for holidays or birthdays. [J.D.] does not provide adequate supervision to her children during visitation at all times.

The report further provides that J.D. still wanted her children returned to her, that no relatives had been located for placement, and that “[t]he children were moved into an ^adoptive placement on 5/3/07 due to [J.D.’s] lack of progress in the allotted time.” (Emphasis added.) In its overall assessment, which appears to conflict with the afore-stated progress summary, the report provides:

The agency has been attempting to work with [J.D.] for the last 11 months. She has not made significant progress in the allotted time. The agency has placed the children with an adoptive resource. The children are now establishing a strong and healthy bond with their foster parents. The children are thriving.
The agency continues to work with [J.D.J on the completion of her case plan. The agency enrolled [J.D.] in a Parenting Wisely program and a Life Skills program; however, [J.D.] refused to attend the Life Skills program. The agency monitors [J.D. ’s] progress in securing a safe home for her children removing the risks that prompted the children’s removal.

The trial court held a review hearing on July 19, 2007, as scheduled. J.D. did not attend this hearing although her counsel was present. This hearing generated an order maintaining custody with OCS, approving the July 6 case management plan, and finding that inadequate progress had been made toward reunification. However, the judgment further rejected the move toward adoption and specifically ordered that the plan for permanent placement of the children remain reunification with their mother.

Less than one week later, OCS held its own staff meeting, wherein it appears to have made the decision to ignore the judgment of the trial court. The result of that staffing meeting held July 23, 2007, was OCS’s unilateral decision to pursue termination of J.D.’s parental rights. Through an August 21, 2007 letter, OCS finally | ^notified the trial court of this decision. OCS attached to the letter a report dated the same day, wherein it stated its reasons to be as follows.

The agency feels that [J.D.] has not made significant progress toward her case plan. For many months she did not stay in contact with her worker and failed to visit her children. [J.D.] does not know her children’s dates of birth. Half of the time [J.D.] does not know what month it is. During visitation with her children she does not provide adequate supervision to her children at all times. [J.D.] has a hard time handling the children for the entire two-hour visit. The children scream and cry for most of the visits. The agency feels that it would not be in the best interests of the children to continue to work toward return. The agency is changing the goal to adoption.

(Emphasis added.)

On September 6, 2007, the matter was again before the trial court for consideration of the state’s change of position. Noting that J.D. had not been served with notice of the hearing, the trial court continued the matter until October 4, 2007. J.D. appeared on October 4, as did her attorney. Without comment from any party, the trial court ordered the August 12 report filed into the record and provided the parties with a new case management plan establishing termination of parental rights as the new objective.

It took four additional months for the state to file its petition to terminate J.D.’s parental rights. This occurred on January 7, 2008. However, despite this delay, the proceedings moved forward in the fall of 2007 as if the termination proceeding had already been filed. When filed, the petition to terminate J.D.’s parental rights based OCS’s request for relief on the following assertions:

|71. There has been no significant or timely parental compliance with the case plans for services approved by the court as necessary for the safe return of the children;
2. The children have been in the State’s custody for over one year. They need a stable and permanent home and cannot wait any longer for their mother to rehabilitate;
3. She disappeared from August 24, 2006 until December 6, 2006 and then again disappeared from December 20, 2006 until January 17, 2007;
4. She has failed to timely attend court ordered parenting classes. She chose instead to attend a parenting class not authorized by the AGENCY. She just recently registered for an approved parenting class, however, the class is a several month course and she registered over a year after her children came into custody.
5. She was ordered to attend a psychological evaluation and to submit to any treatment or attend any courses that the evaluator felt was necessary to facilitate the goal of reunification.
On January 25, 2007 she presented for a psychological evaluation with Dr. Ed Bergeron, Ph D, MP. He recommended mental health services, intense individual therapy, anger management and parenting skills training, and also recommended that reunification could not be attempted until the mother complied with all of the recommendations and showed a pattern of stability and improvement. He suggested drug therapy as well.
The mother failed to submit herself for any of the recommended treatment until just recently. After continually refusing to submit to the life skills program, she is now attempting to comply.
6. The mother recently tested positive for Marijuana, so the agency is now faced with this new problem presented by the mother’s actions.
Additionally, the mother recently became very belligerent with a State employee supplying transportation to her.
7. The mother has not supported her children since they came into custody. Therefore, she has abandoned her children pursuant to Ch. C. Art. 1015(4).
8. The mother has made about ⅜ of the visits offered to her. That is not significant contact as contemplated by Ch. C. Art. 1015(4) and therefore she has abandoned her children.

|sThe matter obviously did not go to trial on January 24, 2008. Instead, that hearing was used as an answer hearing for the January 7 filing. J.D. appeared at the hearing and denied all of the allegations. The trial court then set trial of the termination issue for March 13, 2008. Additionally, because OCS and J.D. had participated in another case management plan meeting on January 8, 2008, the trial court adopted the recommendation of OCS arising from that meeting that custody remain in the state pending the outcome of the termination proceedings. The state had provided J.D. and the trial court with a summary of the meeting through correspondence dated January 8, 2008. In that report, OCS stated its position with regard to J.D. as follows:

The agency feels that [J.D.] continues to pose a high risk to her children. [J.D.] has not competed her case plan. However, [J. D] has completed anger management classes and is currently enrolled and attending the Life Skills Program. The agency is awaiting a report regarding her participation and progress. The agency was able to complete two random drug screens on [J.D.] and both were positive for THC. When [J.D.] was questioned she denied drug usage and said that the results were wrong. The case plan will be amended to include completion of a substance abuse program. Since the last court hearing a situation arose where [J.D.] had become verbally abusive to an OCS staff member during transportation. [J.D.] continues to take no initiative for herself; she rarely knows her children’s dates of birth or what day it is. [J.D.] rarely brings food or gifts for the children. [J.D.] recently contacted Senator Donald Cravins regarding her situation and that she was being treated unfairly. Senator Cravins’s office contacted agency and an appointment was set up between all parties involved. [J.D.] failed to show up for the appointment.

The matter did not go to trial on March 13, 2008. By written motion filed March 11, 2008, J.D. sought and obtained a continuance of the trial date until May 8, 2008. On May 6, 2008, OCS sought and received a continuance of that trial date based on its assertion that it could not serve its subpoenas in time to assure witness attendance at the trial. The trial court re-fixed the trial for July 24, 2008. By a written motion filed July 24, 2008, J.D. received a continuance based on the fact that the 19psychological report prepared by the state’s expert had never been made available to her attorney. The trial court refixed the matter for October 9, 2008. The October 9, 2008 trial was also continued, this time on the motion of the state. The minutes of that day stated that the state sought the continuance and the other parties concurred in the grant, although it is unclear why the state sought the continuance. The minutes reflect that the effect of the continuance was the trial court’s order that the case plan be amended as follows:

Court ordered OCS provide assistance in obtaining therapy, psychiatric medical treatment, and medication for the mother in St. Martin Parish within 7 days; the OCS office will provide transportation for the initial signup, but the mother is responsible for all transportation after that time; the mother must show willingness to comply with the treatment recommendations; a preliminary report containing services provided and progress must be presented to counsel within 30 days; after such time a reassessment be conducted on the mother by Ed Ber-geron. Court advised Jessica Frey with the Office of Community Services that the revised case plan needs to be completed with one week. Court further ordered the mother receive an evaluation within 7 days and the amended case plan be presented to her at the end of that time.

Trial on the termination of parental rights was rescheduled for December 3, 2008.

On October 30, 2008, the trial court upset the December 3, 2008 trial date and reset the matter for January 29, 2009. Nothing in the record explains the need for the refixing or which party requested the change. Additionally, the notice of refixing was forwarded only to the attorneys of record and Ms. Frey with OCS. This date lasted only a short time as well. On November 24, 2008, OCS requested a continuance of that date. The trial court granted the request and reset the matter for February 12, 2009. Serving instructions on this motion included service by mail on J.D.’s counsel and personal service on J.D. at a St. Martinville, Louisiana address. However, the notice in the record provides only for service on the attorneys of record and Ms. Frey.

| mThe matter finally went to trial on February 12, 2009, and resulted in a judgment terminating J.D.’s parental rights. The four witnesses called by the state were Kimberly James, J.D.’s OCS case worker since December of 2007; Summer Oyster, the children’s OCS caseworker since December 1, 2008; Jessica Frey, another OCS caseworker who had worked with J.D. and the children off and on from July of 2006 until July 2008; and M. W., the children’s father. As previously stated, J.D. was not present at the trial, but was represented by her court-appointed counsel.

According to Ms. James, J.D. had completed the drug assessment requirements imposed on her by OCS and did not require any drug-related services; J.D. had maintained an apartment for over two years prior to trial; J.D. was disabled and living on a $446.00 monthly disability check; and since Ms. James took over the supervision of the case, someone from OCS had been responsible for transporting J.D. to the family-team conferences; and, at the time of the trial, J.D. was attending a 16-week nurturing parenting course with Extra Mile. In fact, Ms. James testified that J.D. had complied with all of her case management plan except the requirement for mental health services. She did acknowledge, however, that on one occasion J.D. refused to perform a random drug screen, and, on one other occasion in 2007, she tested positive for marijuana; that she had missed many visits with her children (although recently she had attended all of her visits); and that she was often not at home when Ms. James came to visit.

Ms. Oyster testified that she had been the children’s OCS caseworker for only three months. During that time, Ms. Oyster attended all of J.D.’s visits with her children and observed some of J.D.’s parenting classes. According to Ms. Oyster, the children are doing very well in their foster placement, but they have some behavioral problems both before and after visiting with J.D.

| nMs. Frey was J.D.’s initial OCS caseworker. In fact, she had actually worked with J.D. as a family services representative providing help to J.D. before the July 20, 2006 instanter order. However, after the children came into the state’s custody, Ms. Frey’s primary obligation was that of caseworker to the father, although she worked a total of six months as J.D.’s caseworker. Ms. Frey testified that one of the conditions of J.D.’s case plan was to complete a psychological evaluation, which she did by submitting to an evaluation by Dr. Ed Bergeron, a Lafayette, Louisiana medical psychologist. According to Ms. Frey, Dr. Bergeron recommended mental-health services that included intense individual therapy, anger management, and parenting skill training. Ms. Frey testified that while she had the cases J.D. never accepted the mental-health services offered to her and did not participate in intense individual therapy. However, Ms. Frey testified that in making this comment she was relying, not on personal knowledge, but on information in the record provided by J.D.’s case worker.

Dr. Bergeron’s written report is in the record. According to this report, he first saw J.D. on January 25, 2007, when he found her to “be markedly unstable on a psychological level” and concluded that she was suffering from “depression and a severe personality disorder.” Based on this evaluation, he concluded that at that time she was incapable of caring for her children and, therefore, should not be awarded their custody.

Pursuant to the October 9, 2008 trial court order, Dr. Bergeron evaluated J.D. a second time on December 3, 2008. The purpose of that evaluation was to determine what improvement, if any, she had made since his last evaluation. He concluded, after that evaluation, that she was still “extremely psychologically unstable.” In fact, he observed that, by her approach to taking the tests administered, she intentionally 112invalidated the tests results of personality and parenting style “out of sheer defiance.” He concluded that “she was engaging in passive-aggressive behavior,” a behavior “typical of an individual who suffers from Borderline Personality Disorder.” He again recommended that the children not be returned to her, as “there has been no improvement since her last evaluation.” Dr. Bergeron did not testify at the termination hearing.

In its reasons for judgment, the trial court found that more than one year had elapsed since the children had been removed from J.D.’s custody; that J.D. had failed to comply with the terms of the case management plan imposed upon her; and that, despite early intervention, there is no reasonable expectation of significant improvement in the near future. In reaching this conclusion, the trial court placed much emphasis on J.D.’s underlying mental condition as diagnosed by Dr. Bergeron.

The assignments of error that this court did not previously address are J.D.’s assertions that the trial court erred in concluding that she had not substantially complied with the requirements of her case management plan and that the trial court erred in concluding that there was no reasonable expectation of future significant improvement.

OPINION

In State in the Interest of J.A., 99-2905, pp. 7-8 (La.1/12/00), 752 So.2d 806, 810-11, the supreme court stated:

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, Lassiter v. Department of Soc. Servs., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship, State in Interest of Delcuze, 407 So.2d 707 (La.1981). However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. Lehman v. Lycoming County Children’s Serv.’s Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982); see also State in the Interest of S.M., 98-0922 (La.10/20/98), 719 So.2d 445, 452. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. See, e.g., State in the Interest of S.M., 719 So.2d at 452; State in the Interest of A.E., 448 So.2d 183, 186 (La.App. 4 Cir.1984); State in the Interest of Driscoll, 410 So.2d 255, 258 (La.App. 4 Cir.1982).

In balancing the interests of the parent versus the child, the state’s burden in a termination proceeding is first to establish by clear and convincing evidence one of the statutory grounds for involuntary termination of a parent’s rights and then to establish by clear and convincing evidence that termination of parental rights is in the child’s best interest. Id. The trier of fact does not reach the best interest issue unless and until the state establishes a ground for termination. State in the Interest of M.R. v. S.F.H., 09-889 (La.App. 3 Cir. 12/9/09), 25 So.3d 1021, writ denied, 09-2812 (La.1/14/10), 24 So.3d 878. Additionally, we review the trial court’s findings of fact under a manifest error/clearly wrong standard. Id.

The eight reasons listed in the state’s petition for termination of J.D.’s parental rights can all be categorized into one ground under La.Ch.Code art. 1015:

Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

La.Ch.Code art. 1015(5).

While the allegations of the state’s petition are very specific, the evidence presented failed to address some of the eight assertions and conflicted with others. StiIl, the state did establish by uncontra-dicted evidence that J.D. failed to comply with various aspects of the case management plan in that she did not meet the requirement for mental health services; on one occasion she tested positive for marijuana, and on one occasion she refused a random drug test; she missed many scheduled "visits with the children; she failed to complete a psychological evaluation until very late in the sequence of events; and she intentionally invalidated the tests performed by Dr. Bergeron. Given the evidence presented, we cannot say that the trial court committed manifest error in concluding that the state proved by clear and convincing evidence that J.D. failed to substantially comply with the overall case plan for services as originally filed, amended, and approved by the trial court.

Proof of the second prong of the inquiry under La.Ch.Code art. 1015(5)— whether the state established by clear and convincing evidence that there is no reasonable expectation of significant improvement in J.D.’s condition or conduct in the near future, considering the children’s age and their need for a safe, stable, and permanent home — is less clear based on the direct evidence presented.

Sadly, the state’s direct evidence failed to address this point at all. The three witnesses who testified concerning the relationship between OCS and J.D. restricted their testimony to past history, and Dr. Bergeron’s reports failed to directly address this issue.

In his report, Dr. Bergeron did conclude that when he interviewed J.D. on January 25, 2007, “she was not ready to be reunified with her children because she was deemed to be markedly unstable on a psychological level.” (Emphasis added.) It was in the follow-up interview of December 3, 2008, that Dr. Bergeron concluded that J.D. intentionally tried to invalidate the test results. The summary of his findings is as follows:

11sBased on information derived from the current evaluation, this psychologist cannot recommend reunification as there has been no improvement since her last evaluation. Based on her presentation and on the manner in which she responded to formal psychological assessment, treatment motivation is deemed poor.

While it would have been extremely helpful to this court for the state to have asked the direct question concerning reasonable expectation of significant future progress, we do not find that this failure alone warrants reversal. In the matter before us, considering the entire history of J.D.’s actions and inactions from the time her children were removed until trial; the fact that J.J.W. is five years old and H.M.D. is almost five, and that both are now school age; that the children have lived in a stable environment for almost four years; and Dr. Bergeron’s testing results and conclusion concerning J.D.’s treatment motivation, the trial court’s conclusion with regard to the “reasonable expectation” issue is not manifestly erroneous.

Having concluded that the trial court was not clearly wrong in determining that a ground for termination exists, we turn to the “best interest” issue. As the supreme court noted in State in the Interest of J.A., 752 So.2d at 811:

The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all ] ilegal relations with the parents to be terminated. La. Child. Code art. 1001. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven. Nonetheless, courts must proceed with care and caution as the permanent termination of the legal relationship existing between natural parents and the child is one of the most drastic actions the State can take against its citizens. The potential loss to the parent is grievous, perhaps more so than the loss of personal freedom caused by incarceration. State in the Interest of A.E., 448 So.2d [183] at 185 [La.App. 4 Cir.1984],

Balancing J.D.’s rights against those of her children and considering the fundamental purpose, focus, and primary concern of termination proceedings as explained by the supreme court, we conclude that the trial court did not commit manifest error in concluding that the best interests of the children require termination of their mother’s parental rights.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects. We assess all costs of these proceedings to J.D.

AFFIRMED.

      . The initials of the children and their parents are used to protect the identity of the minor children. Uniform Rules — Courts of Appeal, Rules 5-1, 5-2.

      . The children's mother and father were never married. The father, M.W., was also named as a defendant in the termination proceedings, but consented to his parental rights being terminated and has not appealed that determination. Thus, we address only the termination of J.D.’s parental rights.

      . OCS’s first involvement was to investigate an April 5, 2006 report that J.D. was giving H.M.D. homogenized milk and that H.M.D. had not been to the doctor or received any immunizations.

      . The two exhibits were the entire record of these proceedings as well as H.M.D.'s medical records, which indicated the child’s treatment for allergies and asthma.

      . Her attorney's explanation for J.D.’s failure to appear was that she did not have personal notice of the hearing despite the domiciliary service two days before the hearing.

      . The attorney introduced a letter from the City of St. Martinville, Louisiana, indicating that J.D. had maintained an apartment in that city since January of 2007; a certificate reflecting that J.D. had completed an anger management class with Extra Mile Region IV, Inc., on September 25, 2007; and a certificate reflecting that she had completed a healthy parenting program with CDJ Rehabilitation Services, L.L.C., on May 6, 2008.

      .This assertion is in conflict with the fact that J.D. appeared at the August 18 meeting and appeared in open court on September 14, 2006.

      . The record contains no evidence that J.D. participated, or was even invited to participate, in this meeting.

      . It is obvious that these reasons were present when OCS made its recommendations to the trial court at the July 19, 2007 hearing. Furthermore, OCS did not reference the trial court’s judgment of July 19 ordering OCS to continue pursuing reunification.

      . All counsel were present, as was Jessica Frey with OCS.

      . The record contains a notice filed October 23, 2007, that the trial date for the termination proceedings had been continued from January 17, 2008, to January 24, 2008.

      . While we do not conclude that the state's failure to directly address this issue in this case is fatal to its request for termination of J.D.'s parental rights, we do not wish to suggest that this issue is not of critical importance in all termination cases. Our holding is limited to the fact situation before us. We also find disturbing OCS’s unilateral decision to ignore the trial court's order of July 19, 2007, to place the move toward adoption on hold and continue the reunification goal. Still, this is a matter for the trial court to address and does not affect the final outcome of this litigation.


author: DECUIR, Judge. CHATELAIN, Judge Pro Tempore,

text:
    Ellis HARGRAVE v. STATE of Louisiana, Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 09-818.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Michael B. Miller, Attorney at Law, Crowley, LA, for Plaintiff/Appellant, Ellis Hargrave.
    Sylvia M. Fordice, Assistant Attorney General, Louisiana Department of Justice, Lafayette, LA, for Defendant/Appellant, State of Louisiana, through the Department of Transportation and Development.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   DECUIR, Judge.

pin this workers’ compensation dispute, the claimant’s employer appeals the workers’ compensation judge’s calculation of the weekly compensation rate and failure to award a credit for overpayment of temporary total disability (TTD) benefits. The employer also questions the amount of attorney fees awarded. The claimant answered and assigned as error the workers’ compensation judge’s failure to award legal interest.

FACTS

The record indicates that the claimant, Ellis Hargrave (Hargrave), was employed by the State of Louisiana, Department of Transportation and Development (DOTD), as a mobile equipment operator. On June 29, 2005, Hargrave was injured while in the course and scope of his employment. On July 18, 2006, Hargrave filed a disputed claim for compensation in which he claimed that his weekly workers’ compensation benefits did not commence in a timely fashion. DOTD reconvened seeking a credit for overpayment of benefits.

Following a trial on the merits, the workers’ compensation judge found:

a. The weekly compensation rate is $424.28;
b. A demand for mileage was underpaid by $196.72;
c. Indemnity benefits started untimely;
d. The waiting week check was untimely;
e. Unspecified bills to Dr. Gillespie were not paid;
f. Unspecified bills for UMC were not paid;
g. The claimant is due penalties of $8,000.00;
h. The claimant is due attorney fees of $18,900.00; and
i. The claimant is due expenses of $641.31.

[ 2The workers’ compensation judge made no oral finding regarding DOTD’s credit for overpayment.

Written judgment was subsequently entered decreeing that Hargrave was entitled to $424.28 in weekly benefits, $196.72 for underpayment of mileage, penalties of $8,000.00, attorney fees of $18,900.00, and expenses of $641.31. DOTD now appeals, asserting the following assignments of error:

1. The workers’ compensation court committed manifest error in finding the claimant’s weekly compensation rate is $424.28, as the evidence does not support such a finding.

2. The workers’ compensation court committed manifest error in failing to find that DOTD was due a credit for overpayment of TTD benefits.

3. The workers’ compensation court committed manifest error in awarding the claimant $18,900.00 in attorney fees.

Hargrave answered the appeal, alleging the workers’ compensation judge erred in failing to award legal interest and seeking additional attorney fees for work performed on appeal.

CALCULATION OF TTD DISABILITY RATE

DOTD argues that the workers’ compensation judge erroneously considered 196.5 hours in fringe benefits to determine the claimant’s weekly compensation rate. Specifically, DOTD contends that the workers’ compensation judge erroneously applied La. R.S. 23:1021(12)(d), which provides for a twenty-six week average weekly wage calculation period for employees not paid hourly, monthly or annually. In addition, DOTD contends that the workers’ compensation judge misapplied La. R.S. |s23:1021(f) to add 32 hours of sick leave and 164.5 hours of annual leave taken during that period to the average weekly wage calculation as fringe benefits. We agree.

On June 29, 2005, the date of the accident, Hargrave was a civil service employee of DOTD, earning a bi-weekly wage of $1,095.76 for eighty hours of work, or $547.88 for forty hours per week. At the time the claimant’s disability commenced on January 31, 2006, the claimant had experienced a pay increase and was earning $569.80 weekly, or the bi-weekly rate of $1,139.60 divided by 2. The claimant’s normal work schedule was Monday through Friday for a forty-hour week.

An hourly employee’s average weekly wage is calculated for compensation purposes by multiplying his hourly pay rate by the greater of forty hours or the average actual hours worked in the four full weeks preceding the accident. La. R.S. 23:1021(12) (a) (i). In this particular case, there were no specific findings regarding the actual hours worked by claimant or his hourly wage rate. By deduction, however, the claimant’s hourly rate on the date of the accident was $13,697, or $1,095.76 divided by eighty hours. It is clear from the evidence that during the four full weeks preceding the date of the accident, the claimant took eight hours of sick leave and may have taken some annual leave. Kay McRae, Human Resources Manager for DOTD, testified that for the four full weeks preceding the date of the accident, which comprised the time period of May 30, 2005 to June 26, 2005, the claimant was paid for forty hours per week. Ms. McRae also testified that for this claimant, paid sick leave and paid annual leave for hours not worked during the four weeks are included in the eighty hours of bi-weekly pay, if the claimant had adequate accumulated leave balances. Although there was no evidence of any holiday pay during the four full weeks prior to the date of the accident, Ms. McRae also indicated that holiday pay |4would be included in the biweekly eighty hours. The claimant would be paid for the holiday, whether he worked or not. If the claimant worked on the holiday, however, he would be paid overtime hours. Thus, the only way an employee would be paid more than forty hours per week for the fifty-two weeks in the year would be if the employee were paid overtime. The claimant did not work any overtime hours during the four full weeks preceding the date of the accident.

The pay structure employed by DOTD is similar to that of the claimant in Ivory v. Southwest Developmental Center, 07-1201 (La.App. 3 Cir. 3/5/08), 980 So.2d 108. In each case, the claimant was an hourly employee with a basic bi-weekly pay period of eighty hours. In each case, the department employee testifying regarding the composition of the eighty-hour pay period stated that the eighty hours would include all paid leave and holidays. With the exception of overtime hours worked, an employee could not be paid more than forty hours a week for fifty-two weeks during the year. In Ivory, the claimant earned compensatory hours for working on most holidays, while Hargrave would actually be paid overtime for working on a holiday.

Here, as in Ivory, we have determined that the claimant is paid on an hourly basis, and his average weekly wage is calculated using La. R.S. 23:1021(12)(a)(i) and that fringe benefits in the form of annual and sick leave are already included in that calculation. Accordingly, for the reasons assigned in Ivory, we find the workers’ compensation judge erred in adding fringe benefits to the average weekly wage calculation and, consequently, in determining the compensation rate of $424.28. The correct average weekly wage is $547.88, which when multiplied by the TTD rate of sixty-six and two-thirds percent gives a compensation rate of $865.25.

| ^OVERPAYMENT

DOTD contends that because the workers’ compensation judge miscalculated Hargrave’s indemnity rate, it appeared that DOTD’s voluntary overpayment was offset by its underpayment of TTD and, therefore, the judgment was silent as to this issue. We agree.

Louisiana Revised Statutes 28:1206 provides as follows:

Any voluntary payment or unearned wages paid by the employer or insurer either in money or otherwise, to the employee or dependent, and accepted by the employee, which were not due and payable when made, may be deducted from the payments to be made as compensation.

This statute entitles an employer to a credit for previous overpayments from future compensation which may be due. Breaux v. Petro Drive, Inc., 534 So.2d 48 (La.App. 3 Cir.1988). Further, this statute applies even if the overpayment is due to the employer’s error in calculating benefits. Id.

In the instant case, DOTD voluntarily made compensation payments to Har-grave. However, due to a miscalculation by DOTD, Hargrave was overpaid and this overpayment was exacerbated by the workers’ compensation judge’s miscalculation of the indemnity rate. As such, our review of the record reveals that Hargrave was overpaid $1,927.17 as a result of DOTD’s error and an additional $29.24 biweekly as a result of the workers’ compensation judge’s error. Thus, as of August 3, 2009, Hargrave was paid compensation in the amount of $2,703.07, which was not due and payable when made. In accordance with La. R.S. 23:1206, DOTD is entitled to a credit for its overpayment of benefits. Additionally, it has been held that discontinuation of benefits until the overpayment is recouped is permissible and proper under La. R.S. 23:1206. Id. Accordingly, DOTD is entitled to suspend ^payment of benefits until such time as its past payments and any additional overpayments accruing in the interim are recovered.

ATTORNEY FEES

DOTD contends the workers’ compensation judge abused its discretion in awarding $18,900.00 in attorney fees. We disagree.

‘“A WCJ has great discretion in the award of attorney fees and penalties, and a decision concerning the award of attorney fees will not be disturbed absent an abuse of discretion.’ ” Metoyer v. Roy O. Martin, Inc., 03-1540, p. 5 (La.App. 3 Cir. 12/1/04), 895 So.2d 552, 556 (on re hearing), writ denied, 05-1027 (La.6/3/05), 903 So.2d 467, quoting Harvey v. B E & K Const., 33,475, p. 3 (La.App. 2 Cir. 8/23/00), 770 So.2d 819, 822. Counsel for Hargrave submitted records to the workers’ compensation judge documenting the work performed. We find no abuse of discretion in the award of attorney fees.

LEGAL INTEREST

Hargrave argues that the workers’ compensation judge erred in failing to award legal interest on all amounts due. Louisiana Revised Statutes 23:1201.3(A) provides that “[a]ny compensation awarded ... shall bear judicial interest from the date compensation was due;” therefore, imposition of interest is required on compensation. See Cormier v. La. Sw. Scrap & Salvage, 04-321 (La.App. 3 Cir. 12/1/04), 888 So.2d 1117. Accordingly, we amend the judgment to include legal interest beginning on the date compensation was due,

Hargrave also requests legal interest be included on the award of penalties and attorney fees. The Louisiana Supreme Court, in Smith v. Quarles Drilling Co., 04-179 (La.10/29/04), 885 So.2d 562, held that La. R.S. 23:1201.3 does not apply to penalties |7and attorney fees, only to benefits. However, the court in Quarles noted that a party is entitled to legal interest on an award of penalties and attorney fees if the party prayed for interest in his pleadings. Hargrave prayed for interest in the court below and before this court. Therefore, we award him interest on the awards of penalties and attorney fees.

Lastly, Hargrave seeks an award of additional attorney fees for work performed on appeal. Accordingly, we award an additional $1,500.00 in attorney fees.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation awarding weekly indemnity benefits to Hargrave in the amount of $424.28 is reversed. Judgment is rendered to award Hargrave $365.25 per week in indemnity benefits, to grant an offset to DOTD for overpayment of benefits as described herein, to include legal interest beginning on the date compensation was due, including legal interest on the awards of penalties and attorney fees beginning on the date of judgment, and to award Hargrave an additional $1,500.00 in attorney fees for the work necessitated by the present appeal. In all other respects, the judgment of the Office of Workers’ Compensation is affirmed.

AFFIRMED IN PART, AFFIRMED AS AMENDED IN PART, REVERSED AND RENDERED IN PART.

CHATELAIN, J., dissents in part and assigns written reasons.

SAUNDERS, J., dissents to the extent and for the reasons assigned by Judge CHATELAIN.

CHATELAIN, Judge Pro Tempore,

dissents in part.

|,I agree with the majority opinion except for its reversal of the inclusion of fringe benefits by the workers’ compensation judge (WCJ) in its average weekly wage (AWW) calculation and its determination that DOTD overpaid the claimant. For the following reasons, I respectfully dissent from these discrete aspects of the majority opinion.

In finding the WCJ improperly included fringe benefits in its determination of the claimant’s weekly compensation rate, the majority relies on Ivory v. Southwest Developmental Center, 07-1201 (La.App. 3 Cir. 3/5/08), 980 So.2d 108. Even though Ivory reached that conclusion, I find it and the present case are at odds with other appellate opinions of this court. See, e.g., Burns v. St. Frances Cabrini Hosp., 02-518, p. 2 (La.App. 8 Cir. 10/30/02), 830 So.2d 572, 575 (holding that even though vacation time, holiday time, sick leave, and sick pay are already included in the hourly wage, these “fringe benefits ... have been held to be included in the AWW calculations”); accord Trahan v. City of Crowley, 07-266 (La.App. 3 Cir. 10/3/07), 967 So.2d 557, 561, writs denied, 07-2462, 07-2471 (La.2/15/08), 976 So.2d 185, 187 (holding that fringe benefits are to be included in the calculation of AWW); Sterling v. Asplundh Tree Expert Co., 03-266, p. 9 (La.App. 3 Cir. 10/1/03), 856 So.2d 125, 130 (holding that “paid vacation[s] ... are fringe benefits[;] [a]ny fringe benefit that an employer provides is taxable and must be included in the recipient’s pay”).

I also find that Ivory, 980 So.2d 108, and the present case conflict with the opinions of other circuit courts of appeal on this issue. See, e.g., Moses v. Grambling State Univ., 33-185 (La.App. 2 Cir. 5/15/00), 762 So.2d 191, writ denied, 00-1769 (La.9/22/00), 768 So.2d 1285 (holding that because 'annual and sick leave is earned in addition to the worker’s salary, the value of the annual and sick leave should have been included in the determination of the AWW); Transp. Ins. Co. v. Pool, 30,250 (La.App. 2 Cir. 5/13/98), 714 So.2d 153, writ denied, 98-1566, 98-1616 (La.9/25/98), 725 So.2d 486, 488 (holding that the value of fringe benefits should be included in the calculation of AWW); Leson Chevrolet, Inc. v. Tricke, 98-1328 (La.App. 5 Cir. 9/28/99), 742 So.2d 1047.

In my view, when the claimant’s use of sick leave and leave during the four weeks prior to his injury is considered part of his salary and not in addition to that salary, it effectively denies him those fringe benefits. Thus, I would affirm the WCJ’s inclusion of these fringe benefits in the calculation of the claimant’s AWW and deny the defendant’s reconventional demand, seeking a credit for overpayment of TTD.


author: CHATELAIN , Judge.

text:
    AGILUS HEALTH (Albert Atwood, Jr.) v. DRESSER, INC., et al.
    No. 10-317.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 2010.
    Eric J. Waltner, D. Paul Gardner, Jr., Allen & Gooch, Lafayette, Louisiana, Edward R. Wicker, Jr., Barrasso, Usdin, Kupperman, Freeman and Sarver, New Orleans, Louisiana, for Defendants/Appellants, Liberty Mutual Insurance Company Dresser, Inc.
    Edward E. Roberts, III, Neblett, Beard & Arsenault, Alexandria, Louisiana, R. Bray Williams, Joseph Payne Williams, Sr., Williams Family Law Firm, L.L.C., Natchitoches, Louisiana, for Plaintiff/Ap-pellee, Agilus Health.

      Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and DAVID E. CHATELAIN, Judges.
   CHATELAIN , Judge.

| ,The appellee, Agilus Health, Inc., moves to dismiss the suspensive appeal of the appellants, Dresser, Inc. and Liberty-Mutual Insurance Company, and to convert their appeal to a devolutive appeal. The appellee contends that the appellants posted their suspensive appeal bond untimely. Finding that the posting of the bond was timely in accordance with La. R.S. 23.T310.5, we deny the motion to dismiss.

Following trial of this matter, the workers’ compensation judge (WCJ) rendered a money judgment against the appellants, finding that the appellee had been underpaid by the appellants in the sum of $610.60 for health care bills associated with a work-related injury to Albert Atwood, Jr. The WCJ also cast the appellants with a $2,000.00 statutory penalty and with $3,000.00 in attorney fees.

The WCJ signed the written judgment on December 15, 2009. On December 16, 2009, the trial court mailed notice of this judgment to all counsel of record. No motion for new trial was filed. The appellants filed their motion and order for appeal on January 6, 2010, and the order was granted by the WCJ that same date. Appellants also filed on that date a Motion and Order to Set Bond for Suspensive Appeal, which order was signed by the WCJ setting a hearing for February 8, 2010.

The hearing on the bond amount was conducted on February 8, 2010, at which time the WCJ set the bond amount. On February 10, 2010, the WCJ signed an order setting the bond amount at $5,973.00. The appellants posted the sus-pensive appeal bond on March 2, 2010. The record was subsequently lodged in this court.

The appellee filed a motion to convert the appeal from suspensive to devolutive, arguing that the appellants failed to post their suspensive appeal bond |2within thirty days of notice of the final judgment, as provided in La.Code Civ.P. 2123. The appellants filed an opposition memorandum in this court, contending that the suspen-sive appeal bond was timely posted within thirty days of the notice of the setting of the bond’s amount as provided in La. R.S. 23:1310.5(0.

In a case involving substantially similar facts, this court has issued an opinion on this date, finding that the posting of the suspensive appeal bond within thirty days of the notice of the setting of the bond amount was timely. Agilus Health (Kenneth McKeithen) v. Dresser, Inc., 10-313 (La.App. 3 Cir. 4/14/10), 36 So.3d 385. For those same reasons, we hereby deny the motion to dismiss the appellants’ suspen-sive appeal.

MOTION TO DISMISS SUSPENSIVE APPEAL AND CONVERT TO DEVOL-UTIVE APPEAL DENIED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.


author: LOLLEY, J.

text:
    David HOGG, John Hogg, George Hogg, III, Stephen Hogg and Sandra Defreese Hogg, Plaintiffs v. CHEVRON U.S.A. f/k/a Gulf Oil Company, E. Lee Young, E. Lee Young and Company, Inc., William Burt, Jr. and ABC Insurance Company, Defendants.
    No. 45,128-CW.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.
    Barham, Warner & Bellamy, by Richard G. Barham, for Defendant-Applicant, William E. Burt.
    Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, by Leonard L. Kil-gore, III, Richard D. McConnell, Jr., for Defendant-Respondent, Chevron USA.
    Shotwell, Brown & Sperry, by Clarence A. Martin, III, for Defendant-Respondent, Chevron USA.
    Oscar P. Barnes, III, for Defendants-Respondents, Ernest Lee Young, III, E. Lee Young & Co., Inc.
    Nalley & Dew, by Dona Jeanne Dew, George J. Nalley, Jr., for Plaintiffs-Respondents, David Hogg, John Hogg, George Hogg, III, Stephen Hogg, Sandra Defreese Hogg.
    Before BROWN, STEWART and LOLLEY, JJ.
   LOLLEY, J.

_JjThis suit was filed by the Hogg family seeking recovery for damages for contamination and trespass of their family property that occurred as a result of an alleged leak at a filling station in Ruston, Louisiana between the years 1984 through 1997. The defendants include Chevron, USA i/k/a Gulf Station, E. Lee Young individually and E. Lee Young and Company, Inc., together with William T. Burt, Jr., individually (“Burt Jr.”). Burt Jr. and the other defendants brought motions for summary judgment seeking a determination that the Hoggs’ claims had prescribed at the time the suit was filed.

In addition, Burt moved for summary judgment arguing that he was not an owner of the property at issue and therefore had no duty to the Hoggs. The trial court denied all motions for summary judgment and made a factual finding that prescription had not run and there were genuine issues of material fact as to whether Burt Jr. had a duty to the Hoggs. All defendants applied to this court for supervisory review; this court granted Burt Jr.’s application and placed it on the regular docket.

Therefore, the limited issue on appeal is whether the trial court properly denied a motion for summary judgment finding that there are issues of material fact involved as to the existence of William Burt Jr.’s duty to the Hoggs and whether the claim has prescribed.

FACTS

E. Lee Young and his wife initially owned the filling station personally and later transferred ownership to their corporation in the 1970’s. Around the same time, William Burt, Sr., orally leased the station from |aYoung to carry on the business of a gas station and a mechanic shop. Until his death in 1988, the station was operated by William Burt, Sr. After Burt, Sr.’s death, his wife took over operation of the station until January 2000 when Burt Jr. formed an L.L.C., “Burt’s Chevron Service Center” which orally leased the premises from E. Lee Young and Company, Inc. Before taking over the business, however, Burt Jr. helped his parents run the business including working as a mechanic at the station. The plaintiffs’ petition alleges that a substantial amount of gasoline was released “during the period 1984 to 1997” and Burt Jr. was made a defendant. Burt Jr. contends that the trial court erred and this action is prescribed, or in the alternative he owed no duty to the Hoggs and is entitled to a summary judgment. This writ application ensued.

LAW AND DISCUSSION

Burt Jr. contests the trial court’s denial of his motion for summary judgment. We apply a de novo standard of review in considering the trial court’s rulings on a summary judgment motion. Summary judgment should be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. P. art. 966(B). A genuine issue exists where reasonable persons, after considering the evidence, could disagree. Suire v. Lafayette City-Parish Consol. Government, 2004-1459 (La.04/12/05), 907 So.2d 87.

lain determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Id. A fact is “material” if it is one that would matter at trial on the merits. Id. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Id.

Here, the record clearly reflects that Burt Jr. did not have any lease interest in the gas station until 2000. Since Burt Jr. was not the lessee at the time of the incident, he cannot be held responsible for the damages involved. In Price v. Tenneco Oil Company, 2008-441 (La.App. 3d Cir.11/05/08), 996 So.2d 1260, a trawler collided with an unlit, unmarked abandoned well structure. The owner of the trawler sued the state (as owner of the lake bottom), Tenneco (the original constructor of the infrastructure), and all lessees thereafter, including Unocal. The Price court found that Unocal was entitled to summary judgment since it was not the lessee when the accident occurred. The same analysis is applicable here.

In fact, courts have routinely found that lessees are not responsible for the storage tanks unless explicitly noted in a contract. In Abadie v. Markey, 1997-684 (La.App. 5th Cir.03/11/98), 710 So.2d 327, the lessor of property for a gasoline station brought an action against the lessee’s sureties for damages from leaking tanks. There, the written lease agreement provided, in part:

Lessee will at Lessee’s sole expense keep and maintain in good repair the entire leased premises, including without limitation ... all underground gasoline storage tanks and related equipment. ...

l4The Abadie court found that the paragraph “does not contemplate that the lessee would be responsible for leaking tanks that would have to be removed.” Id. at 331. In the instant case, since there was only an oral contract, we cannot find that the lease contemplated this type of responsibility.

The record also reflects that the one time a leak did occur during Burt, Sr.’s lease terms, the Burts called Young to deal with the problem. Burt Jr. and Young stated in their depositions that sometime between 1978 and 1988, there was an underground leak or as Burt Jr. described it, “a little gasoline coming up at the pump island through a divider in the concrete.” Burt Jr. explained that they contacted Young, and that the ground was dug up and a leak discovered in the PVC pipe that connected the underground tanks to the pumps. The leak was repaired by Young. This course of conduct, at the very least, is indicative of who was not responsible for dealing with a “leak.”

We also cannot agree with the plaintiffs’ argument that Burt Jr. inherited his father’s interest. There is clearly no ownership of the land, and the oral lease was not subject to an inheritance, otherwise Burt Jr. would not have negotiated another lease. Undoubtedly, it is hard to reconcile that Burt Jr. “inherited” gasoline that was spilled on land his family never owned. Even if Burt, Sr. “owned” the actual gasoline in accordance with the |fibuy/sell arrangement with Young, Burt Jr. did not have privity with the oral contract between his dad and Young. In addition, given that gasoline is a fungible good, we cannot find that Burt Jr. “inherited” the gasoline.

Nonetheless, plaintiffs seek to impute the years Burt’s father was a lessee onto Burt Jr. based on Burt Jr.’s role at the station; however, the record does not support this. Burt Jr. merely helped his parents run their business. Even if Burt Jr. played a vital role in the day-to-day operations of the gas station, this does not lend itself to the type of responsibility plaintiffs seek to impose on him. There is nothing in the record that establishes Burt Jr.’s role was akin to a lessee, nor does it show that Burt Jr.’s duties included monitoring the tanks.

Plaintiffs argue that ownership of the land is unnecessary according to La. C.C. art. 2317 which states:

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.

Plaintiffs further allege that a proprietor, such as Burt Jr., is liable for the damages caused by the leak and point to La. C.C. art. 667 which states:

Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause 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 Ran appropriate case. Nonetheless, the proprietor is answerable for damages without regard to his knowledge or his exercise of reasonable care, if the damage is caused by an ultrahazardous activity. An ultrahazardous activity as used in this Article is strictly limited to pile driving or blasting with explosives.

While this may be true, plaintiffs failed to show how either article applies to Burt Jr. He did not have “custody” of the filling station during the period of time alleged in the petition nor was he the “proprietor” at the time. As stated earlier, other than helping his parents, Burt Jr. did not have any type of interest in the property or lease agreement. We find that the plaintiffs’ theory of recovery, specifically that Burt Jr. is implicated solely based on the work he did at his father’s station, is unpersuasive. We note that if another unrelated person became a proprietor of the gas station that person would not be subject to this lawsuit. Since the petition does not allege a spill after 1997, and there is no evidence of a spill occurring after Burt Jr. took over, we cannot find that a genuine issue of material fact exists as to Burt Jr.’s duty to the Hoggs.

Burt carried his burden of showing the absence of facts that demonstrate any viable theory of recovery as to him. In other words we believe that reasonable persons, after considering the evidence, would not disagree that Burt Jr., cannot be held responsible for any leaks during the alleged period in plaintiffs’ petition. Therefore, we find the plaintiffs’ arguments without merit.

CONCLUSION

For the foregoing reasons, we grant the writ and make it peremptory. Because no genuine issue of material fact exists with respect to William T. Burt, Jr.’s duty to the Hoggs, we grant William T. Burt, Jr.’s motion for |7summary judgment. In light of our findings, we pretermit any discussion as to the issue of prescription.

WRIT GRANTED AND MADE PEREMPTORY.

      . As an aside, we doubt that Burt, Sr.’s lease would have resulted in liability at the time the alleged leak occurred.

      . The supreme court has granted writs to address the issue of prescription as to the other defendants.


author: MOORE, J.

text:
    SUCCESSION OF James Roy CATCHING.
    No. 45,145-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.
    William G. Kelly, Jr., for Appellant, First United Methodist Church.
    Thomas M. Hayes, III, for Appellee, Estate of James Roy Catching.

      Before WILLIAMS, STEWART and MOORE, JJ.
   MOORE, J.

| ,The appellant, First United Methodist Church of Monroe (“Church”), appeals the judgment below wherein the trial court held that the Succession of James Roy-Catching was not required to satisfy any legacies in the will, including a legacy consisting of a $100,000 Certificate of Deposit to the Church, because the value of the succession was less than the value of the usufructuary debt the decedent owed to his son, the naked owner, who is the executor of his father’s will. For the following reasons, we affirm.

FACTS

The story begins with the death of the mother, Virgie Hicks Catching, on Christmas Eve, 1998. Mrs. Catching died intestate. The community was valued at $953,516.98. According to the laws of intestacy, upon Mrs. Catching’s death, the decedent’s only surviving son, Phillip, became the naked owner of his mother’s undivided one-half interest in the community, and her husband, James, obtained the usufruct of this property whose value was $476,758.49.

Two years after Virgie’s death, James purchased four individual annuities over a one-year period. The annuities were valued at $100,000, $100,000, $99,000 and $99,000, respectively. Phillip Catching was named the beneficiary of each annuity. James also made gifts of cars to his son and grandchildren in a total amount exceeding $100,000.

James executed his last will and testament on June 14, 2004, some three years or more after he purchased the annuities. In the will, he made a |2bequest to the Church of a $100,000 Certificate of Deposit (“CD”) with Capital One Bank. The only other particular legacy in the will was a grandfather clock, which was apparently given to the legatee when the house was sold. James named Phillip his universal legatee, that is, leaving all the remainder of his property to Phillip. He also directed in his will that all administration debts be paid before any legacies were distributed.

James died on September 2, 2007. At that time, Phillip received approximately $398,000 as the beneficiary of the annuities. The succession was opened on January 3, 2008 and Phillip was appointed the Executor. He petitioned to file a “First and Final Tableau of Distribution” in which he sought authorization to pay the debts and charges of the succession. Included among the debts of the succession paid was partial payment of the “usufruc-tuary debt” owed to Phillip, the naked owner of his mother’s estate.

The detailed descriptive list showed that James’ total assets were only $330,306.76. However, the total debts were $482,391.10, including the $476,758.49 usufructuary debt. Because the administration costs (debts and expenses) exceeded the assets, no legacies were satisfied, including the bequest of the CD to the Church.

The Church opposed the tableau of distribution, and, after discovering the existence of the annuities and inter vivos automobile gifts, claimed that the usufruct debt was satisfied by payment of the annuities and gifts. Alternatively, the Church argued that the usufructuary obligation was extinguished by confusion upon the death of James (and termination of the usufruct by operation of law), arguing that, inasmuch as Phillip is the |,.¡universal legatee, he stands in the same position as James.

After an evidentiary hearing, the court held that La. R.S. 22:912(B)(1) exempted the proceeds of the annuities from the succession as a matter of law, upheld the Tableau of Distribution and denied the Church’s claims.

The Church filed this appeal.

DISCUSSION

Because the outcome of this case depends on statutory interpretation, that is, a matter of law, our standard of review is de novo.

The first issue raised by the Church is whether the usufructuary’s obligation to either pay the value of the usu-fruct over the consumables or deliver similar things of the same quality and quantity is considered a succession debt.

The parties agree that all the mother’s property that was subject to the usufruct is classified as “consumables” under the Civil Code because her estate consisted solely of money, bank accounts, CDs, and the like. La. C.C. art. 536. Consumables are called such because, according to the Civil Code, they cannot be used without being expended or consumed. Id.

Also, “if the things subject to the usu-fruct are consumables, the usufructuary becomes the owner of them. He may consume, alienate, or encumber them as he sees fit. At the termination of the usu-fruct, he is bound to pay the naked owner either the value that the things had at the commencement of the usufruct or deliver to him things of the same quantity and quality.” La. C.C. art. 538.

Because James became the usufructuary of the mother’s half of the |4community, which consisted solely (after sale of the house) of consumables, he became the owner of the consumables and was free to dispose of or consume them as he wished. This would have not destroyed, however, his obligation to Phillip to “pay the naked owner either the value of the consumables at the time he began the ususfruct, or deliver things of the same quantity and quality” at the termination of the usufruct. La. C.C. art. 538.

The usufruct terminated upon James’ death and became a debt owed by the succession to the naked owner. In Succession of Majoue, 97-710 (La.App. 5 Cir. 11/25/97), 705 So.2d 225, the court held:

At the termination of a usufruct of consumables, of which money is one, the usufructuary owes to the naked owners the value that the thing had at the commencement of the usufruct, La. C.C. arts. 536 and 538. This obligation is in the nature of a debt owed by the succession to the owners, and must therefore be shown as such on the sworn descriptive list. (Emphasis supplied).

Accordingly, this assignment is without merit.

By his second assignment of error, the Church contends that the proceeds of four annuities purchased by the decedent several years before his death and which he named his son the beneficiary should be applied as satisfaction of the usufructuary debt. The Church insists that because James purchased the annuities during his usufruct and made his son Phillip the beneficiary, this somehow became “delivery of things of the same quantity and quality” in satisfaction of the usufruct. However, the fact that Phillip is the named beneficiary of the annuity is an incidental fact. James could have made anyone the beneficiary, including the Church or even a stranger. Had |she done so, the result would have been the same, and the Church would still be left with the unsatisfied particular legacy of the $100,000 CD at Capital One, and Phillip, as a creditor of the succession, would still have received only partial satisfaction of his father’s usufructuary obligation to him.

The Church contends that since the obligation of the usufructuary is not a debt to pay money in the ordinary sense, but to deliver (pay) the value of the consumables or deliver to him things of the same quantity and quality, by naming Phillip the beneficiary of the annuities, James provided for the delivery of consumables of the same quantity and quality obtained by the usufruct. His obligation of delivery, the Church argues, was discharged by the delivery of the annuities upon his death and other inter vivos gifts during his lifetime. There is no evidence, however, that James Catching, in making automobile gifts and annuity investments, was attempting to renounce his usufruct or pay his obligation under Civil Code Art. 538 to the naked owner by purchasing gifts for his family members or by purchasing annuities for investment purposes which named his son as beneficiary upon his death.

Section (B)(1) La. R.S. 22:912(B)(1) governs the question of whether life insurance policies and annuities are included in the succession for purposes of satisfying the claims of a legatee. The relevant portion of the statute reads:

B. (1) The lawful beneficiary, assign-ee, or payee, including the annuitant’s estate, of an annuity contract, heretofore or hereafter effected, shall be entitled to the proceeds and avails of the contract against the creditors and representatives of the annuitant or the person effecting the contract, or the estate of either, and against the heirs and | (¡legatees of either such person, saving the rights of forced heirs, and such proceeds and avails shall also be exempt from all liability for any debt of such beneficiary, payee, or assignee or estate, existing at the time the proceeds or avails are made available for his own use.

The Church argues, however, that the statute does not exclude the annuities from being included in the Tableau of Distribution, relying chiefly on the case of In re Succession of Halligan, 2003-1168 (La.App. 1 Cir. 9/17/04), 887 So.2d 109, writ denied 2004-2619 (La.12/17/04), 888 So.2d 875. In that case the court held that the death benefit of a non-qualified, tax-deferred, single-premium annuity, which was paid directly to the beneficiary following death of the decedent, fell within the estate of the decedent and was subject to inheritance tax. We observe, however, that the court in Halligan also said that R.S. 22:912 did provide certain exemptions for annuity proceeds that were similar to those provided for life insurance benefits, but that those similarities did not mandate the conclusion that annuity contracts were to be treated the same as life insurance policies for all purposes, and the beneficiary did not establish other provisions that would exempt or exclude annuity proceeds from inheritance tax.

We conclude that the holding of Halligan is limited in its scope to valuing the estate for purposes of inheritance tax.

Accordingly, the usufructuary obligation became a debt of the succession upon James’ death and was not extinguished by fulfillment of the contractual terms of the annuity. The annuities were correctly excluded from the Tableau of Distribution for purposes of satisfaction of the succession debts and legacies.

|7In its final assignment of error, the Church contends that, assuming the decedent’s usufructuary obligation to restore the value of the consumables to the naked owner constituted a succession debt, the debt was extinguished by confusion since the son, as the naked owner and universal legatee, became both creditor and debtor of the decedent’s estate.

Louisiana Civil Code Article 956 provides that “[a] successor may assert a claim that he has as a creditor of the estate whether he accepts or renounces his succession rights.” The 1997 revision comments to this article state:

Except to the extent that rights may be extinguished by confusion, a successor who is a creditor of the estate should have the right to pursue his claims as a creditor. See C.C. art. 1903 (1870). The roles of successor and creditor may be different, and when they are, the successor is not precluded from asserting his right as a creditor. See, e.g., Art. 1616, infra.

Finally, under the section, “Rules for the Interpretation of Legacies,” La. C.C. art. 1616 states that “[a] legacy to a creditor is not applied toward satisfaction of the debt unless the testator clearly so indicates.”

These articles must be read in pan materia, and in doing so it is clear that the intent of these articles is avoid forcing a legatee to renounce his rights as a creditor or vice versa, unless the testator clearly intended that the legacy is to be applied toward satisfaction of the debt. In this instance, Phillip’s role as a creditor to the succession, arising out of his naked ownership of the consumables that were subject to the usufruct, is a different and distinct role from his position as a universal legatee. James Catching did not indicate that his legacy to Phillip was to be applied to satisfaction of his usufructuary debt. Hence, the debt was not extinguished | sby confusion. Moreover, James’s will instructed that all debts of the succession be paid before any legacies are satisfied. Because the debts of the succession exceeded the assets, none of the legacies, including Phillip’s legacy, was satisfied. Accordingly, this assignment is without merit.

Conclusion

For these reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . The couple actually owned a house at the time of Virgie's death, but it was apparently sold shortly after her death, making all the estate property "consumables” for purposes of this case.


author: CARAWAY, J. BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee v. Jefferson MARKRAY, Appellant.
    No. 45,129-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 21, 2010.

      Carey J. Ellis, III, for Appellant.
    J. SChuyler Marvin, District Attorney, John M. Lawrence, Marcus Patillo, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

|2Jefferson Markray pled guilty to unauthorized entry of an inhabited dwelling in violation of La. R.S. 14:62.3 and was sentenced to six years at hard labor to be served consecutively to a sentence he was serving in another case. He now appeals asserting that his plea was not freely intelligently, and voluntarily entered because of a violation of his Boykin rights. For the following reasons, Markray’s guilty plea is vacated and the matter remanded for further proceedings.

Facts

The pertinent facts concern whether Markray was adequately advised of his constitutional right to confrontation prior to pleading guilty. Markray pled guilty pursuant to a plea agreement which included a sentencing cap of 20 years and the state’s agreement not to multiple bill him. Thereafter, the following colloquy occurred:

THE COURT: Allright. Now. Mr. Markray, you understand you do not have to plead guilty. You can maintain your not guilty plea and have a trial before a jury, or if you waive that right a trial before the Judge, do you understand?
MR. MARKRAY Yes, sir.
THE COURT: Do you understand, sir; that the District Attorney would have to prove his case against you beyond a reasonable doubt?
MR. MARKRAY: Yes, sir. I do.
* ⅜ *
THE COURT: Okay. Speak up, and just say “yes” or “no’s” will do. All right. So do you also understand you have the right to remain silent that no one can force you to incriminate yourself today or at the trial, you understand?
MR. MARKRAY: Yes, sir. I do.
|aTHE COURT: All right. Do you understand this Court would subpoena whatever evidence or witnesses you needed in order for you to present a defense? Do you understand?
MR. MARKRAY: Yes, sir. I do.

The court noted that counsel had been present and heard Markray answer the court’s questions. The court then asked counsel, “Do you believe he’s understood and waived these rights?” Counsel responded in the affirmative.

Markray’s counsel addressed the court prior to the guilty plea concerning whether his sentence should run consecutively with his sentence in another case. Counsel stated that Markray pled guilty in February to a drug charge (the instant guilty plea was in March) and that the two charges “apparently arose out of the same, when they came to arrest him for this, unauthorized entry, I believe drugs were found on him. So it arose out of the same event.”

Markray is a fifth felony offender who at the time of sentencing was serving five years on the charge of possession of a controlled dangerous substance; he had previous DWI offenses, previous theft offenses, and other inhabited dwelling offenses.

Discussion

The federal constitutional standards set out in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), require that a guilty plea be recorded showing that defendant was informed of and waived three specific constitutional rights. These rights are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. State v. Guzman, 99-1528 (La.05/16/00), 769 So.2d 1158, 1163, fn. 4, citing State ex rel. Jackson v. Henderson, 255 So.2d 85, 260 La. 90 (1971). The trial court cannot rely on an assumption that defense counsel adequately informed the defendant of his rights. State v. Williams, 384 So.2d 779 (La.1980). See also La. C. Cr. P. art. 556.1(A)(3) requiring that the court not accept a guilty plea in a felony case without addressing the defendant personally in open court and informing him of and determining that he understands he has the right “to confront and cross-examine witnesses against him.... ”

It would be the height of technicality to require that the word “confront” be used when an explanation of rights is otherwise given. State v. Woods, 402 So.2d 680 (La.1981). The use of the phrase, “you waive your right to confront your witnesses and to cross-examine them at trial” adequately complies with the mandates of Boykin. State v. Anderson, 34,491 (La.App.2d Cir.4/4/01), 784 So.2d 749, writs denied, 01-1431 (La.4/12/02), 812 So.2d 666, 01-2429 (La.5/24/02), 816 So.2d 303. Prior guilty pleas cannot be utilized to infer defendant’s knowledge of his rights when pleading guilty in a later case where no evidence exists to demonstrate that a defendant was properly Boykinized at the prior pleas. State v. Lawson, 410 So.2d 1101 (La.1982). In instances where a printed waiver form is signed by defendant or the defendant has been present at numerous pretrial proceedings, where he could not avoid knowledge of the nature of his right of confrontation, the courts have looked beyond the guilty plea colloquy to an expanded record to determine whether a voluntary waiver has occurred. State v. Cusher, 400 So.2d 601 (La.1981); State v. Dunn, 390 So.2d 525 (La.1980).

In State v. Dodson, 07-0057 (La.11/2/07), 967 So.2d 487, the Louisiana Supreme Court upheld a guilty plea when the defendant was informed that he was waiving his right to have his attorney “examine the D.A.’s witnesses during the course of trial.” In so doing, the court explained:

In the present case, while the trial court failed to advise defendant during the guilty plea colloquy that he was waiving his right to cross-examination of the state’s witnesses by entering a guilty plea, the minutes of the court show that defendant was present with counsel for the hearing on his motion to suppress during which counsel cross-examined two police officers. In this context, the trial court’s advice to defendant, who was 45 years old at the time of the plea colloquy and possesses a G.E.D., that he waived his right to examine the witnesses against him at trial by entering a guilty plea adequately informed him of his right of confrontation and cross-examination at trial. [State v.], Mendenhall, 06-1407 at 1, 944 So.2d at 560 (“The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.”) (internal quotation marks and citations omitted).

In this case, there is no evidence to assure the court that Markray was properly Boykinized before entering his prior guilty plea. Nor is there any evidence that Markray signed a printed waiver form or participated in pretrial proceedings where he could not avoid knowledge of the nature of his right of confrontation. When read in its entirety, the guilty plea transcript shows inadequate Boykin compliance. There is no mention of defendant’s right to confront and cross-examine witnesses. Neither the court’s advisement of the state’s burden of proof beyond a reasonable doubt nor Markray’s right to compulsory process states or implies Markray’s right |fito confrontation. Thus, the “main and essential purpose of confrontation” is lacking in the statements of the court to Markray. For these reasons, we vacate Markray’s guilty plea, reverse his conviction and remand for further proceedings.

CONVICTION AND SENTENCE VACATED; REMANDED FOR FURTHER PROCEEDINGS.

BROWN, C.J., dissents with written reasons.

BROWN, Chief Judge,

Dissenting.

|2Pefendant pled guilty to an amended bill of information pursuant to a plea bargain which limited or capped the possible sentence to 20 years and included an agreement that he would not be multi-billed. Further, defendant’s attorney indicated that defendant had also pled guilty the previous month to a felony possession of CDS; the attorney claimed that the sentences should run concurrently because it arose out of the same transaction. Defendant was a 52-year-old fifth felony offender.

In addition to an explanation of defendant’s rights against self-incrimination and to a jury trial, the trial court stated, “You can maintain your not guilty plea and have a trial before a jury, or if you waive that right, a trial before the Judge ... (and) that the District Attorney would have to prove his case against you beyond a reasonable doubt ... (and) this court would subpoena whatever evidence or witness you needed in order for you to present a defense.”

I disagree that the dialogue between the trial court and defendant was insufficient under Boykin. The Supreme Court in Boykin makes it clear that a plea of guilty cannot stand unless the record demonstrates that it was freely and intelligently entered. A silent record will not suffice. Rather, the trial court must actively participate in canvassing the matter with the accused. To insure such a record, Boykin requires the trial court to expressly enumerate three rights which must be waived by the accused prior to accepting a guilty plea. As spelled out by Boykin, these are rights to a jury trial, against self-incrimination, and to confront one’s accusers. The 13rule does not call for a recitation of a formula by rote or the spelling out of every detail by the trial court.

A similar factual situation occurred in State v. Mendenhall, 06-1407 (La.12/08/06), 944 So.2d 560. The supreme court reversed this court’s decision in which I had dissented stating:

The decision of the Second Circuit is reversed.... A majority on the court of appeal panel found that the trial judge’s statement informing defendant that the state would have to prove its case beyond a reasonable doubt and that his attorney would have the opportunity to cross-examine the state’s witnesses at a trial did not suffice as an advisement to defendant of his right to confront his accusers. State v. Mendenhall, 40,986 (La.App.2nd Cir. 5/19/06), 930 So.2d 1196 (Brown, C.J., dissenting). However, this Court has stressed that neither Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), nor the Court’s implementation of Boykin in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), sets out a “magic word formula” which may “serve as a technical trap for conscientious trial judges who conduct a thorough inquiry into the validity of the plea.... ” State v. Bowick, 403 So.2d 673, 675 (La.1981). With respect to the Confrontation Clause of the Sixth Amendment, “[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974)(internal quotation marks and citation omitted; emphasis deleted); see also State v. Anderson, 34,491, p. 3 (La.App.2d Cir.4/4/01), 784 So.2d 749, 751 (“In common usage, the phrases confront and cross-examine always connote adversarial activities.”), writ denied, 01-1431 (La.4/12/02), 812 So.2d 666. In this instance, the language used by the trial judge appears sufficiently tailored to inform a 29-year-old defendant, who was educated through the twelfth grade and employed as a plant assistant manager, that he was waiving his right to confrontation, and that, because he was pleading guilty, there would be no further trial. See State v. Martin, 382 So.2d 933, 935 (La.1980)(purpose underlying the Boykin and Jackson rules “is to ensure the defendant’s receipt of adequate information, so that his decision to plead guilty is truly intelligent and voluntary....” [T]his information may successfully be conveyed in words tailored to a particular individual’s vocabulary and comprehension), overruled in part on other grounds, State v. Williams, 392 So.2d 448 (La.1980). Accordingly, we agree with the dissenting views of Chief Judge Brown that the circumstances in the record reflect a knowing and voluntary waiver of defendant’s rights and compliance with the constitutional requirements for the taking of voluntary guilty pleas in Louisiana.

State v. Mendenhall, 944 So.2d at 560.

The trial court’s discourse with this 52-year-old fifth felony offender, who had, just prior to his guilty plea in this case, pled guilty to another felony, was tailored to sufficiently inform him of his rights. The dialogue between the trial judge and defendant clearly connoted an adversarial or confrontational jury trial where the District Attorney “would have to prove his case against you beyond a reasonable doubt” and “this court would subpoena whatever evidence or witness you needed in order for you to present a defense.” I respectfully disagree with the majority’s narrow view. A common sense consideration of the circumstances encompassing defendant’s guilty plea reflects defendant’s understanding that he was entitled to an adversarial and confrontational trial.