author: PERRY, Judge.

text:
    STATE of Louisiana v. Elijah James LATIQUE
    KA 18-622
    Court of Appeal of Louisiana, Third Circuit.
    February 20, 2019
    Elijah James Latique, Thru Annette Roach, Louisiana Appellate Project, P. O. Box 1747, Lake Charles, LA 70602, Pro Se Appellant: Elijah James Latique
    Annette Roach, Louisiana Appellate Project, P. O. Box 1747, Lake Charles, LA 70602, Counsel for Appellant: Elijah James Latique
    Kenneth Hebert, Assistant District Attorney and Keith Stutes, District Attorney, P. O. Box 3306, Lafayette, LA 70502, Attorneys for Appellee: State of Louisiana
    Court composed of Billy Howard Ezell, Van H. Kyzar, and Jonathan W. Perry, Judges.
   PERRY, Judge.

Defendant Elijah James Latique ("Defendant") appeals his jury convictions for possession of a firearm by a convicted felon, aggravated burglary, and attempted manslaughter, and the sentences the trial court imposed. We affirm Defendant's convictions and sentences, but we remand this matter to the trial court to more fully inform Defendant of the provisions of La.Code Crim.P. art. 930.8.

FACTS

On the night of April 11, 2016, Robert Short ("Short") was working at his business, Busy Bee Towing, in Scott, Louisiana. While outside with a tow truck driver, he saw five men pass, then double back and pass again. Shortly thereafter, he saw Defendant pass on a bicycle, followed by another man. Later, he saw the pair returning.

After the tow truck driver left, Short went into his office, locked the door, and worked at his desk. The office door had a large translucent oval-shaped window and Short was able to see that Defendant and another man were trying to look through the door window. Short then armed himself with a handgun he kept in the office and called emergency services. With guns visible, the Defendant and the other man kicked open the front door, leaving foot prints on the door, and initially fled when they saw Short armed inside. However, as Short rushed toward the open door, Defendant ran back toward the office door and pointed his handgun at Short. Short shot Defendant just outside the office door, and both the offenders fled. When law enforcement responded, they found Defendant moaning and bleeding in the tow yard, Short had security cameras and was able to provide officers with surveillance footage of the confrontation.

PROCEDURE AND TRIAL

On June 15, 2016, the State filed a bill of information charging Defendant with aggravated burglary, possession of a firearm by a convicted felon, and aggravated assault with a firearm. On July 27, 2016, the State filed an amended bill charging him with attempted first degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30, and reiterated the other two charges. Later on June 12, 2017, the State filed yet another amended bill of information, ultimately charging Defendant with three counts: Count 1, attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1 ; Count 2, possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1 ; and Count 3, aggravated burglary, a violation of La.R.S. 14:60.

On September 26, 2017, the parties selected a jury, and the case continued to trial. After hearing evidence on September 26 and 27, 2017, the jury deliberated and found Defendant guilty of a lesser-included offense, attempted manslaughter, on the first count, and guilty as charged on the other two counts.

On March 22, 2018, the trial court sentenced Defendant to fifteen years for attempted manslaughter, ten years and a $ 1,000 fine for possession of a firearm by a convicted felon, and twenty-five years at hard labor for aggravated burglary. The trial court imposed the sentences concurrent to each other, except for five years for Defendant's possession of a firearm as a prior convicted felon which was imposed consecutive to the other sentences.

Defendant, represented by appellate counsel, now seeks review by this court, assigning four errors: (1) The evidence introduced at the trial of this case, when viewed under the Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard, was insufficient to prove beyond a reasonable doubt that Defendant committed the completed crime of aggravated burglary; (2) The evidence introduced at the trial of this case, when viewed under the Jackson standard, was insufficient to prove beyond a reasonable doubt that Defendant committed either attempted manslaughter or attempted second degree murder; (3) The trial court erred in returning the jury for further deliberation as to count one after the jury returned a verdict form which complied with the court's instructions and was lawful; and (4) The sentences imposed by the trial court violate the Eighth Amendment of the Constitution of the United States and La.Const. art. 1, § 20, as they are nothing more than cruel and unusual punishment and, thus, excessive.

In addition, Defendant has urged three additional pro se assignments of error: (1) All of the State's witnesses were present during voir dire examination; (2) Defendant's right to testify was erroneously forfeited; and (3) Defendant's right to testify was unknowingly, unintelligently, and involuntary waived.

ERRORS PATENT REVIEW

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After carefully reviewing the record, we find one error patent.

The record shows the trial court advised Defendant at sentencing that he has "two years to file any post-conviction relief petitions that he may be entitled to."

Louisiana Code of Criminal Procedure Article 930.8 provides the defendant has two years after the conviction and sentence become final to seek post-conviction relief. Considering the specific provisions of La.Code Crim.P. art. 930.8, we find the trial court's advisement was insufficient because it failed to alert the Defendant that the two years commenced with the rendition of our opinion in this court. Therefore, we direct the trial court to inform the Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending written notice to the Defendant within ten days of the rendition of this opinion and to file written proof in the record that the Defendant received the notice. State v. Roe , 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied , 05-1762 (La. 2/10/06), 924 So.2d 163.

SUFFICIENCY OF EVIDENCE

In his first two assignments of error, Defendant argues the State's evidence was insufficient to support his convictions for aggravated burglary and attempted manslaughter. With regard to the aggravated burglary conviction, Defendant contends the State failed to prove he entered Short's office. As to the attempted manslaughter conviction, Defendant further contends the State failed to prove he had specific intent to kill Short, an essential element of the crime charged.

In State v. Kennerson , 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371, we articulated the well-established analysis for such claims:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied , 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) ; State ex rel. Graffagnino v. King , 436 So.2d 559 (La.1983) ; State v. Duncan , 420 So.2d 1105 (La.1982) ; State v. Moody , 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino , 436 So.2d 559 (citing State v. Richardson , 425 So.2d 1228 (La.1983) ). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

Aggravated Burglary

As applicable in the present case, the elements of aggravated burglary are found in La.R.S. 14:60(A)(1) : "Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, under any of the following circumstances: (1) If the offender is armed with a dangerous weapon." Defendant argues the State failed to prove any part of his body passed the line of the threshold into Short's office.

In State v. Bryant , 12-233, pp. 5-6 (La. 10/16/12), 101 So.3d 429, 432-433, the supreme court addressed the meaning of "entry" as contemplated in La.R.S. 14:60(A)(1) :

"Entry" is not statutorily defined in Louisiana. While this Court has never directly addressed the issue, our appellate courts have found "entry" for purposes of the crime of burglary whenever any part of the defendant's body passes the line of the threshold. See , State v. Abrams , 527 So.2d 1057, 1059 (La.App. 1st Cir.1988) ("it is sufficient if any part of the actor's person intrudes, even momentarily, into the structure"); State v. Hogan , 33,077 (La.App. 2 Cir. 3/1/00), 753 So.2d 965, 967 ; State v. Jefferson , 33,333 (La.App. 2 Cir. 5/10/00), 759 So.2d 1016, 1019. The term has also been uniformly defined in criminal law treatises. Wharton's provides:
There is entry when any part of the defendant's person passes the line of the threshold. Thus, there is an entry when the defendant, after opening a closed door, steps across the threshold; when, after breaking the glass of a door or window, he reaches inside to unlock the door or window or to steal property; when in the course of breaking the glass of a door or window, his finger, hand, or foot happens to pass through the opening; or when, in the course of pushing open a closed door or raising a closed window, his finger or hand happens to pass the line of the threshold or to pass through the opening.
3 Wharton's Criminal Law, § 322, pp. 247-48 (15th ed.1995, Charles E. Torcia, ed.); see also W.R. LaFave, A.W. Scott, 2 Substantive Criminal Law § 8.13, p. 467 (1986) ("It is sufficient if any part of the actor's person intrudes, even momentarily, into the structure. Thus, the momentary intrusion of part of a foot in kicking out a window, constitutes the requisite entry.")
High courts in other jurisdictions have defined entry similarly, consistently holding that a "slight entry," consisting of any part of the actor's body crossing the plane, is sufficient. See , People v. Beauchamp , 241 Ill.2d 1, 348 Ill.Dec. 366, 944 N.E.2d 319, 324 (2011) ; State v. Keopasaeuth , 645 N.W.2d 637 (Iowa 2002) ; State v. Gutierrez , 285 Kan. 332, 172 P.3d 18, 23 (2007) ; State v. Crossman , 790 A.2d 603, 606 (Me.2002) ; Hebron v. State , 331 Md. 219, 627 A.2d 1029 (1993) ; State v. Fernandes , 783 A.2d 913, 917 (R.I.2001) ; Rowland v. Com. , 281 Va. 396, 707 S.E.2d 331, 333 (2011). We agree with the universal definition given to the term "entry," and hold as a matter of law that an "entry" for purposes of the crime of burglary occurs when any part of the intruder's person crosses the plane of the threshold.

Initially, Short testified that the men "fell in" after they kicked open the door. Defendant argues that no part of his body crossed the threshold of the front door, only the barrel of his gun extended into the office.

The State presented evidence to the jury of Defendant's entry into the Busy Bee Towing office by two means: a contemporaneous security video of the entry and Short's direct testimony. We have carefully viewed the video and observe that although the camera was mounted on a post aimed at the front door, it is somewhat difficult to determine to what extent Defendant's hand or arm protruded into Short's office. Nonetheless, the video clearly shows Defendant's right foot and leg crossed the threshold of the door as he kicked it. Despite Defendant's contention that his hand did not cross the threshold, Short, who was off to one side of the entry door, unequivocally testified Defendant's and the other offenders' "hands were in the building." Juries are not required to abandon common sense and life experiences when they enter a jury room. State v. Blazio , 09-851 (La.App. 5 Cir. 6/29/10), 44 So.3d 725, writ denied , 10-1781 (La. 2/4/11), 57 So.3d 310. Having viewed the contemporaneous crime scene video and read Short's testimony about his placement in relation to the door location, we find the record fully supports the jury's factual determination Defendant entered Short's office.

Considering the video evidence and Short's testimony, when viewed in light of Bryant and after viewing the evidence in the light most favorable to the prosecution, we find the State proved every element of the crime of aggravated burglary. Therefore, Defendant's first assignment of error lacks merit.

Specific Intent: Attempted Manslaughter

Defendant's next argument is that the State failed to prove he had specific intent to kill and thus prove that he committed attempted manslaughter. In making this argument, Defendant rests his contention on three arguments: (1) Short's testimony was inconsistent; (2) the testimony of Detective Caleb Lege ("Detective Lege") of the Scott Police Department was also inconsistent; and (3) the physical evidence shows that no round was chambered in the weapon and thus contradicts Short's testimony that Defendant pulled the trigger of the weapon.

Attempt is defined by La.R.S. 14:27, which states in pertinent part:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Manslaughter is defined, in pertinent part, by La.R.S. 14:31 :

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed; or
(2) A homicide committed, without any intent to cause death or great bodily harm.
(a) When the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person[.]

The record shows the State originally charged Defendant with attempted first degree murder and later amended the bill of information to attempted second degree murder; thus, the verdict at issue is for a lesser-included offense, attempted manslaughter. A jury may return any legislatively provided responsive verdict, if the evidence sufficiently supports a conviction of the originally-charged offense. State ex rel. Elaire v. Blackburn , 424 So.2d 246 (La.1982), cert. denied , 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983) ; State v. Sepulvado , 10-435 (La.App. 3 Cir. 3/9/11), 59 So.3d 463, writ denied , 11-1151 (La. 11/14/11), 75 So.3d 941 ; see La.Code Crim.P. art. 814. Further, specific intent to kill is an element of both attempted first and second degree murder as well as attempted manslaughter. La.R.S. 14:30, La.R.S. 14:30.1, La.R.S. 14:31 ; State v. Stafford , 17-714 (La.App. 3 Cir. 3/7/18), 241 So.3d 1060, writ denied , 18-549 (La. 11/20/18), 256 So.3d 997.

Defendant argues the State failed to prove that he had the specific intent to kill Short. As the record shows, Short testified that Defendant pointed a pistol at him and pulled the trigger. Defendant acknowledges in brief that pointing a firearm at another person and pulling the trigger is evidence of specific intent to kill, but he attacks Short's credibility. However, Defendant argues that Short's original statement to police did not mention that Defendant pulled the trigger. He also points out that Short's memory of the timeline of events did not match that of the officers who responded to the scene.

From the outset, we find that Short's incorrect temporal perception or memory of the relevant events is not fatal to the State's case. Although the victim testified the relevant events took place at about midnight, the responding officers testified they were called out to the scene at about 2:00 a.m. Nonetheless, it is clear from the video evidence that the incident occurred generally as Short described it in his testimony.

Moreover, we have carefully viewed the security footage. Although the video evidence may not definitively show that Defendant pulled the trigger, it does clearly show Defendant retreated and then rushed back to the office door, stopped in the doorway, and pointed his pistol at Short, who was standing just feet away. As to whether Defendant pulled the trigger, Short's testimony is that Defendant not only pointed the weapon, he also pulled the trigger of the weapon. "It is well-settled that a jury is free to believe some, none, or all of any witness's testimony." State v. Perkins , 11-955, p. 10 (La.App. 3 Cir. 3/7/12), 85 So.3d 810, 817.

In addition to Short's victim testimony, the jury also heard Detective Lege's investigative testimony regarding the recovery of the Defendant's weapon at the scene. On cross-examination Detective Lege testified that Defendant's gun had not been fired. However, later Detective Lege told the jury that his earlier testimony did not mean the trigger had not been pulled. To the contrary, he said when the gun was taken into police custody and examined, the trigger mechanism indicated the trigger had been pulled.

Lastly, we now turn to Defendant's argument that physical evidence of the absence of a chambered-round in the gun contradicts the testimonies of Short and Detective Lege that Defendant pulled the trigger. The record does show that Detective Lege testified that there was not a round in the chamber when police recovered the Defendant's weapon. Without engaging in speculation regarding Defendant's knowledge of how to operate firearms, the record reflects that the jury was presented with evidence that Defendant's actions indicate that he thought he had a weapon ready to fire and tried to shoot Short with it.

The Jackson standard of review is highly deferential to the fact finder as it "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson , 443 U.S. at 319, 99 S.Ct. 2781. It was up to the jury, not us as a reviewing court, to determine fact questions, such as whether the Defendant pointed a pistol at the victim and pulled the trigger. We, as a reviewing court, should not second-guess that determination. Considering the totality of the evidence and viewing that evidence most favorably to the prosecution, we find the record reflects that the State has satisfied its burden of proving the elements of the crime of attempted manslaughter beyond a reasonable doubt. Therefore, this assignment of error lacks merit.

THE VERDICT FORM

In his third assignment of error, Defendant argues the trial court erred when it sent the jury back to clarify the jury form. He argues that the first verdict form returned a verdict of not guilty which conformed with the trial court's instructions. Arguing that the first verdict was legal, Defendant contends the trial court should have accepted it.

Our review of the record shows that after being properly instructed on the completion of the verdict form, the jury returned a verdict form that said, "as to Count 1: Not Guilty" and then on the blank line between Count 1 and Count 2, the jury handwrote "Guilty of Attempted Manslaughter." Finding it unclear what the jury verdict was as to Count 1 and after discussion with the attorneys, the trial court filed the verdict form under seal. It then addressed the jury about Count 1:

I sent you back ... so that your jury verdict form would conform to instructions that I gave you. At this point what I will do is I will read those instructions again that are applicable to the filling out of that jury instruction form.
....
If you are convinced beyond a reasonable doubt that the defendant is guilty of attempted second degree murder, your verdict should be guilty.
If you are not convinced that the defendant is guilty of attempted second degree murder but you are convinced beyond a reasonable doubt that the defendant is guilty of attempted manslaughter, the form of your verdict should be Guilty of attempted manslaughter.
If you are not convinced that the defendant is guilty of second degree murder but you are convinced beyond a reasonable doubt that the defendant is guilty of aggravated battery, the form of your verdict should be Guilty of aggravated battery.
If you are not convinced that the defendant is guilty of attempted second degree murder but you are convinced beyond a reasonable doubt that the defendant is guilty of aggravated assault with a firearm, the form of your verdict should be Guilty of aggravated assault with a firearm.
If the State has failed to prove beyond a reasonable doubt that the defendant is guilty of either the offense charged or the lesser responsive offense, the form of your verdict should be Not guilty.

After the trial court re-instructed the jury, it remanded the jury for further deliberation in conformity with its instructions. After re-deliberation, the jury returned the second jury form that said "guilty of attempted manslaughter" as to Count 1.

Louisiana Code of Criminal Procedure Article 809 states: "After charging the jury, the judge shall give the jury a written list of the verdicts responsive to each offense charged, with each separately stated. The list shall be taken into the jury room for use by the jury during its deliberation." Louisiana Code of Criminal Procedure Article 810, in pertinent part, further states:

When a verdict has been agreed upon, the foreman shall write the verdict on the back of the list of responsive verdicts given to the jury and shall sign it. There shall be no formal requirement as to the language of the verdict except that it shall clearly convey the intention of the jury.

As an ancillary to La.Code Crim.P. art. 810, La.Code Crim.P. art. 813 states:

If the court finds that the verdict is incorrect in form or is not responsive to the indictment, it shall refuse to receive it, and shall remand the jury with the necessary oral instructions. In such a case the court shall read the verdict, and record the reasons for refusal.

In conformity with La.Code Crim.P. art. 813, the trial court in the present case stated:

The original jury verdict form that came in, I placed it under seal. That one said, "Count 1, attempted second degree murder. We the jury find the defendant not guilty."
And then on the second line guilty attempted manslaughter. Count 2 felony possession of a firearm, we find the defendant guilty. Count 3, aggravated burglary, we find the defendant guilty. And then they had signed and dated it.
The original count 1 when it refers to attempted second degree murder is not in conformity with my instructions. They did not find that he was - that the case was proven beyond a reasonable doubt. They were instructed to find him guilty of either a lesser and included responsive charge or not guilty. By actually putting "We find the defendant guilty of" whatever, exactly like I had read into the record. That's not what it did. It came out and said not guilty and then guilty of something.
In an abundance of caution my reading, even though we all have a feeling of what this should be read, it says: Not guilty, guilty of attempted manslaughter.
So I didn't want to interpret what the jury was finding. So, therefore, I found it not in conformity with the requirements of the jury charge.

As the trial court explained, the first jury verdict clearly was "incorrect in form" under La.Code Crim.P. arts. 810 and 813. Simply stated, the first jury verdict did not clearly convey the jury's intention. In accordance with La.Code Crim.P. art. 813, the trial court properly refused to receive the first verdict, properly re-instructed the jury, and properly returned the jury for further deliberation with a new verdict form. In the present case, the trial court neither suggested what the verdict should be nor implied that the first verdict was incorrect other than as to its form. To the contrary, the trial court simply told the jury, "I sent you back ... so that your jury verdict form would conform to instructions that I gave you." See State v. Tart , 93-0772 (La. 2/9/96), 672 So.2d 116, cert denied, 519 U.S. 1035, 117 S.Ct. 600, 136 L.Ed.2d 527 (1996) ; State v. Ellis , 13-1401 (La.App. 4 Cir. 2/4/15), 161 So.3d 64, writ denied , 15-489 (La. 1/15/16), 184 So.3d 704.

For the foregoing reasons, we find the trial court acted as La.Code Crim P. art. 813 required and it made no effort to influence the jury verdict. Therefore, this assignment of error lacks merit.

EXCESSIVENESS OF SENTENCE

In his final counsel-filed assignment of error, Defendant argues that his sentence is excessive. Our review of the record shows that Defendant, both pro se and through counsel, filed motions to reconsider sentence in the trial court. In Defendant's motion for reconsideration, he alleged that the trial court did not take into account "all of the mitigating factors available" but did not specify which factor or factors in mitigation were not considered. The same is true in Defendant's pro se motion, specific reasons are not stated. Thus, Defendant's argument constitutes a bare claim of excessiveness.

Under State v. Mims , 619 So.2d 1059 (La.1993), when a Defendant's motion to reconsider sentence merely alleges that the sentence is excessive, he is "simply relegated to having the appellate court consider the bare claim of excessiveness." Id. at 1060. This bare assertion preserves only a claim of constitutional excessiveness. Id. ; State v. McEachern , 624 So.2d 43 (La.App. 2 Cir. 1993).

The analysis for a bare claim of excessiveness is well-settled:

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La.1979). In State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell , 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-0165 (La.6/30/00), 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Further, in reviewing the defendant's sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee , 425 So.2d 1251 (La.1983) ), writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:
While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste , 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, 958 [, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996) ].

State v. Soileau , 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005-06, writ denied , 14-452 (La. 9/26/14), 149 So.3d 261 (first alteration in original).

For the aggravated burglary, the trial court sentenced Defendant to twenty-five years at hard labor; the sentencing range is one to thirty years, pursuant to La.R.S. 14:60(B). For attempted manslaughter, the trial court sentenced Defendant to fifteen years, to run concurrently with the aggravated burglary sentence. The potential maximum sentence for attempted manslaughter is twenty years, pursuant to La.R.S. 14:27(D)(3) and La.R.S. 14:31(B). For possession of a firearm by a convicted felon, the trial court sentenced Defendant to ten years at hard labor, with five years to run concurrently with the aggravated burglary and five years to run consecutively. The sentencing range for the firearm offense was ten to twenty years pursuant to La.R.S. 14:95.1(B). The trial court held a hearing regarding possible reconsideration of the sentences and affirmed the sentences.

The trial court gave the following reasons for its sentencing choice:

THE COURT: I have looked at the aggravating and the mitigating factors. And up until today, what we have seen from Mr. Latique is that he was not remorseful. He was still claiming to be the victim and he was saying it wasn't him, even though the video was clear and he was the individual who had gotten shot upon entering the business.
But I will give him some consideration for his act of remorse today, as well as the consideration, some mitigated, for the family unit that was involved in the person who his wife testified him to be. [sic] Despite that, I have a list of aggravating factors, including a previous history of prior felonies, of guns being used, him being on parole, the lack of remorse up until today. And the fact that he left, basically, the scene where the incident happened and then he came back and pointed the gun at the victim where there was testimony of him pulling the trigger.
I also note the lack of his prior aggravating crimes. With that being said, -- or crimes of violence, I should say. With that being said, I think the appropriate sentence, the gun, the third felony conviction and everything, on the aggravated burglary the top of the sentence is hard labor not less than one nor more than thirty years.
I think the appropriate sentence on that for Mr. Latique would be 25 years.
On the manslaughter, it's hard labor not more than twenty because he was convicted of an attempted manslaughter. So, with that, I think the appropriate sentence is fifteen years. That will run concurrent with the aggravated burglary.
On the convicted felon in possession of a firearm, not less than ten nor more than twenty without benefit of probation, parole, or suspension of sentence, and fine of not less than $ 1,000 nor more than $ 5,000, there will be $ 1,000 fine. But on the sentence part, it will be ten years hard labor without benefit of probation, parole, or suspension of sentence. Five to run concurrent with the aggravated burglary, and five to run consecutive to the aggravated burglary.

Our review of the trial court's detailed, particularized reasons shows that the Defendant was a repeat felon. Further, the seriousness of Defendant's offenses is reflected in the record. Although our research has found no case with sentences for this conglomeration of offenses similar to the one now before us, as for a comparison to sentences for similar individual offenses, this court has upheld a twenty-five-year sentence for aggravated burglary for a defendant who was a prior felon. State v. Tolliver , 12-1355 (La.App. 3 Cir. 5/8/13), 157 So.3d 674. Also, this court has upheld a twenty-year sentence for attempted manslaughter. State v. Benoit, 16-129 (La.App. 3 Cir. 6/1/16), 195 So.3d 668. And this court has upheld a ten-year sentence for possession of a firearm by a convicted felon. State v. Johnson , 09-862 (La.App. 3 Cir. 2/3/10), 28 So.3d 1263. After reviewing this case law together, it is clear the trial court's sentencing scheme does not fall outside the norm of Louisiana jurisprudence. Further, in light of the sentencing factors set forth in Soileau , 153 So.3d 1002, we find this assignment is without merit.

Notwithstanding, Defendant takes issue with the trial court's decision to impose half of the sentence for illegal possession of a firearm consecutive to the other offenses.

Louisiana Code of Criminal Procedure Article 883 provides in pertinent part: "If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively." The jurisprudence has concluded that "[a] judgment directing that sentences arising from a single course of conduct be served consecutively requires particular justification from the evidence or record." State v. Harris , 42,376, p. 10 (La.App. 2 Cir. 9/26/07), 966 So.2d 773, 781-82, writ denied , 07-2109 (La. 3/28/08), 978 So.2d 304. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. State v. Boudreaux , 41,660 (La.App. 2 Cir. 12/13/06), 945 So.2d 898, writ denied , 07-58 (La. 11/2/07), 966 So.2d 591 ; State v. Mitchell , 37,916 (La.App. 2 Cir. 3/3/04), 869 So.2d 276, writ denied , 04-0797 (La. 9/24/04), 882 So.2d 1168, cert. denied , 543 U.S. 1068, 125 S.Ct. 905, 160 L.Ed.2d 801 (2005). However, the failure to articulate specific reasons for consecutive sentences does not require remand if the record provides an adequate factual basis to support consecutive sentences. State v. Boudreaux, 945 So.2d 898 ; State v. Hampton , 38,017, 38,022 (La.App. 2 Cir. 1/28/04), 865 So.2d 284, writs denied , 04-0834 (La. 3/11/05), 896 So.2d 57, 04-2380 (La. 6/3/05), 903 So.2d 452.

Although the trial court may not have particularized these factors when announcing its decision to make half of the sentence for illegal possession of a firearm consecutive, earlier in its articulated reasons for sentence the trial court noted Defendant's previous history of prior felonies, of guns being used, and that he was on parole when he committed the offenses for which he was convicted. Those factors and the record provide more than an adequate factual basis to support the trial court's limited use of consecutive sentencing.

Finally, Defendant argues that his use of a firearm should not have been viewed as an aggravating factor in sentencing, as it was an element of two of the offenses. Notwithstanding Defendant's assertion, when we review the totality of the trial court's reasons for sentencing, it becomes apparent to us that Defendant's possession of the weapon was clearly overshadowed by the trial court's concern with the danger that weapon posed to the victim as an aggravating factor. Therefore, we find the Defendant's assignment of error lacks merit.

WITNESS PRESENCE DURING VOIR DIRE

(PRO SE ASSIGNMENT OF ERROR NO. 1 )

In his first pro se assignment of error, Defendant complains that the State's trial witnesses were present during voir dire. Specifically, he contends that the presence of the witnesses unduly influenced the prospective jurors. In support of his argument, Defendant, relying on State v. Johnson , 438 So.2d 1091 (La.1983), contends that, pursuant to former La.Code Crim.P. art. 764, sequestration is available during voir dire. Nevertheless, Defendant acknowledges that he did not move for sequestration in the present case. Indeed, our review of the record indicates that Defendant did not move for sequestration until the jury was about to hear evidence. In the absence of a motion for sequestration, we find Defendant did not preserve this issue for appellate review. State v. Cowden, 04-707 (La.App. 5 Cir. 11/30/04), 889 So.2d 1075, writ denied , 04-3201 (La. 4/8/05), 899 So.2d 2.

For this reason, this assignment of error lacks merit.

DEFENDANT'S RIGHT TO TESTIFY

(PRO SE ASSIGNMENT OF ERROR NO. 2 )

In his second pro se assignment of error, Defendant argues his "right to testify was erroneously forfeited." He acknowledges that the record shows he waived his right to testify but complains the waiver was not memorialized until after the defense rested. He cites State v. Coleman , 14-402 (La. 2/26/16), 188 So.3d 174, cert. denied , --- U.S. ----, 137 S.Ct. 153, 196 L.Ed.2d 116 (2016), for the proposition that any protest by him after his counsel rested would have been untimely. Further, he states, "Appellant could not have testified on his own behalf once his counsel rested the case.... What would the trial judge have done if this Appellant objected to waiving his right to testify?" Our review of the transcript shows that the reason Defendant's question cannot be answered rests squarely on his own shoulders. On the record, Defendant acknowledged not only waiver of the right but also that he had previously advised his counsel of his wish, including an instance approximately fifteen minutes before the colloquy in the record. Thus, this assignment lacks merit.

DEFENDANT'S COMPELLED SILENCE

(PRO SE ASSIGNMENT OF ERROR NO. 3 )

In his third and final pro se assignment of error, Defendant contends that his trial counsel compelled him to remain silent. Defendant alleges that during a meeting with him and his wife, defense counsel coerced him to agree to waive his right to testify by brandishing, cocking, and uncocking a pistol. Accordingly, Defendant, relying on State v. Dauzart , 99-3471 (La. 10/30/00), 769 So.2d 1206, and State v. Hampton , 00-522 (La. 3/22/02), 818 So.2d 720, argues that if his right to testify was violated, his convictions and sentences must be set aside.

Despite Defendant's contention, it is obvious that the alleged encounter involving trial counsel, Defendant, and Defendant's wife happened outside the record. It is well-settled that appellate courts have no authority to review facts not contained in the trial court record. See State v. Waguespack , 589 So.2d 1079 (La.App. 1 Cir. 1991), writ denied , 596 So.2d 209 (La. 1992) ; State v. Swan , 544 So.2d 1204 (La.App. 1 Cir. 1989). Thus, we pretermit discussion of this issue as we have no record of this alleged encounter to review.

DISPOSITION

We affirm Defendant's convictions and sentences. We direct the trial court to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending written notice to the Defendant within ten days of the rendition of this opinion and to file written proof in the record that the Defendant received the notice.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      Prior to the trial court's jury re-instruction, the trial court denied Defendant's motion for a mistrial.

      This was the sentencing range at the time the offense was committed. By Acts 2017, No. 281 § 1, the legislature changed the sentencing range.

      The right of sequestration is now governed by La.Code Evid. art. 615(A), which states:
      On its own motion the court may, and on request of a party the court shall, order that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order of exclusion.
      This language is similar to that of former La.Code Crim.P. art. 764.


source: Caselaw Access Project

author: THERIOT, J. McClendon, J., concurring. CHUTZ, J., concurring in part and dissenting in part.

license: Public Domain

text:
    Justin ULRICH, Gwen Ulrich, Raymond and Pam Alleman, Individually and on Behalf of All Other Similarly Situated v. Kimberly ROBINSON, Secretary Louisiana Department of Revenue
    Justin Ulrich, Gwen Ulrich, Raymond and Pam Alleman, individually and on Behalf of All Other Similarly Situated v. Kimberly Robinson, Secretary Louisiana Department of Revenue
    NO. 2017 CA 1119 CIVIL WRIT NO. 2017 CW 0763
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: November 1, 2018 Rehearing Denied December 27, 2018
    Christopher K. Jones, Nancy B. Gilbert, Brent J. Cobb, John N. Grinton, Baton Rouge, Louisiana, Antonio C. Ferachi, Brandea Averett, Baton Rouge, Louisiana, Counsel for Defendants/Appellants/Relator, Kimberly Robinson, Secretary of the Louisiana Department of Revenue and the Louisiana Department of Revenue
    Lawrence J. Centola, III, Jason Z. Landry, New Orleans, Louisiana, Nicole F. Gould Frey, Baton Rouge, Louisiana, Heidi Mabile Gould, Metairie, Louisiana, D. Blayne Honeycutt, Denham Springs, Louisiana, Counsel for Plaintiffs/Appellees/Respondents, Justin and Gwen Ulrich, Raymond and Pam Alleman, individually and on behalf of all others similarly situated
    BEFORE: PETTIGREW, McCLENDON, WELCH, THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

Kimberly Robinson, Secretary of the Louisiana Department of Revenue ("the Department"), appeals the judgment of the Nineteenth Judicial District Court ("19th JDC") granting Justin Ulrich, Gwen Ulrich, Raymond Alleman, and Pam Alleman's motion for class certification. For the following reasons, we deny the Department's writ application; reverse the trial court's judgment certifying the class action and remand this matter to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

The Ulrichs and the Allemans are Louisiana residents seeking to challenge the constitutionality of 2015 La. Act No. 131 (eff. June 19, 2015), amending and reenacting subsections of La. R.S. 47:6030 relative to the solar energy systems tax credit. Louisiana Revised Statutes 47:6030 provides for a tax credit for Louisiana residents who purchase or lease and install a qualified solar energy system on residential property prior to January 1, 2018. This statute became effective on July 10, 2007.

During the 2015 regular legislative session, the Louisiana Legislature enacted Act 131, which placed certain caps on the solar energy systems tax credits provided for in La. R.S. 47:6030(B). This amendment became effective on June 19, 2015. As amended by Act 131, La. R.S. 47:6030 states, in relevant part :

(B)(1)(c) Beginning in Fiscal Year 2015-2016, the maximum amount of tax credits for purchased systems which may be granted by the department on any return, regardless of tax year, shall be as follows:
(i) For tax credits claimed on returns filed on or after July 1, 2015, and before July 1, 2016, no more than ten million dollars of tax credits shall be granted.
(ii) For tax credits claimed on returns filed on or after July 1, 2016, and before July 1, 2017, no more than ten million dollars of tax credits shall be granted.
(iii) For tax credits claimed on a return filed on or after July 1, 2017, no more than five million dollars of tax credits shall be granted.
(iv) The granting of credits shall be on a first-come, first-served basis.

On June 4, 2015, fifteen days before Act 131 went into effect, the Ulrichs purchased and installed a solar electric system into their home. Similarly, on June 10, 2015, nine days before Act 131 went into effect, the Allemans purchased and installed a solar electric system into their home.

Both the Ulrichs and the Allemans subsequently filed 2015 income tax returns, in which they sought a solar energy systems tax credit. Because the cap imposed by Act 131 had already been met, the Department denied their respective tax credits. The denial letters informed them of their right to appeal the decision to the Louisiana Board of Tax Appeals within 60 days of the date on the letter pursuant to La. R.S. 47:1625. The Ulrichs' denial letter was dated August 22, 2016, while the Allemans' denial letter was dated August 17, 2016.

On September 19, 2016, the Ulrichs and the Allemans filed a class action petition for declaratory action, seeking to have Act 131 declared unconstitutional to the extent that it retroactively deprived taxpayers of property rights to a solar credit vested prior to June 19, 2015. The respective appeals to the Louisiana Board of Tax Appeals were attached to their petition. Both appeals to the Louisiana Board of Tax Appeals were designated as a "class action petition to appeal refund denial" and included the language "individually and on behalf of all others similarly situated."

On October 31, 2016, the Department filed several exceptions with the 19th JDC, including a dilatory exception of lack of procedural capacity and a peremptory exception of improper use of class action procedure. On November 10, 2016, the Ulrichs and the Allemans filed a motion to certify their class action.

In a judgment signed on March 27, 2017, the trial court overruled the Department's exceptions, including the exceptions of lack of procedural capacity and improper use of class action procedure. The Department subsequently filed a writ application with this court seeking review only of the trial court's denial of its exceptions of lack of procedural capacity and improper use of class action procedure. The writ was referred to this panel on December 28, 2017.

In a judgment signed on June 15, 2017, the trial court granted the Ulrichs' and the Allemans' motion to certify the class action. The class was certified as "Louisiana taxpayers that qualified for the La. R.S. 47:6030 Solar Credit between January 1, 2013 and June 18, 2015 and were denied the Solar Credit due to 2015 La. Act 131." This appeal by the Department followed.

ASSIGNMENTS OF ERROR

The Department assigns the following as error:

(1) The trial court erred by certifying the class without providing the defendant an adequate opportunity to pursue discovery.
(2) The trial court erred by finding that the numerosity requirement was satisfied even though the Plaintiffs failed to prove the purported class members had standing to assert a constitutional challenge.
(3) The trial court also committed legal error by failing to recognize the numerosity requirement cannot be satisfied because the sixty-day period set forth in La. R.S. 47:1625 is peremptive in nature and the individualized proof required to lodge a proper appeal within the stated time period cannot be extended through the tolling provision in La. C.C.P. art. 591(A).
(4) The trial court erred in finding the typicality and adequacy of representation requirements were satisfied because only the named plaintiffs showed they had standing to contest the constitutionality of Act 131 by having timely appealed the disallowance of their tax refund by denying the solar tax credit.
(5) The trial court erred in finding the commonality requirement was satisfied because the Plaintiffs did not present any evidence to the Court concerning the pertinent retroactive periods for any of the purported class members.
(6) The trial court erred by accepting a class definition that requires the court to inquire into the merits of each class member's cause of action to determine whether they are within the class because their tax credit was denied solely because of the statutory caps set forth in Act 131.
(7) The trial court erred in finding the requirements of La. Code Civ. P. art. 591(B)(2) were satisfied because case law maintains certification under this provision is not appropriate when, as here, the circumstances of each claim will vary.
(8) The class action requirements are additionally not satisfied in light of Act 413, which moots the necessity to make any determination in this case, and given the relief afforded therein presumably drastically reduces the number of purported class members and introduces additional individualized issues.

STANDARD OF REVIEW

The trial court has much discretion in deciding whether a suit should be certified as a class action. State v. Ford Motor Co., 2006-1810 (La. App. 1 Cir. 6/27/07), 965 So.2d 438, 441, writ denied, 2007-1580 (La. 10/12/07),965 So.2d 405. The factual findings upon which a class action certification is based should be reviewed on appeal by the manifest error (clearly wrong) standard. Id. After the trial court makes its determination of fact, it exercises its discretion to certify the class or not. Id. This discretionary judgment must be reviewed on appeal by the abuse of discretion standard. Id.

DISCUSSION

The Department's Application for Supervisory Writ Review

As a preliminary matter, we first address the Department's application for supervisory writ review. As noted above, the Department's writ application seeks review of the trial court's denial of the Department's exceptions of lack of procedural capacity and improper use of class action proceeding. With regard to both exceptions, the Department's primary argument is that the purported class members have not demonstrated that they have preserved their individual right to appeal their tax claims under La. R.S. 47:1625, which requires taxpayers denied a tax credit by the Department appeal the denial to the Louisiana Board of Tax Appeals within 60 days from the date of the denial letter. The Department argues that the trial court's denial of the exceptions allowed purported class members with alleged perempted claims to seek a declaratory judgment regarding the constitutionality of Act 131.

The Department's exceptions challenge the Ulrichs' and the Allemans' abilities to meet their burden of proving the prerequisites for class action certification. The Department's peremption argument is more akin to La. Code Civ. P. art. 591(A)'s requirements that the claims or defenses of the representative parties be typical of the claims or defenses of the class and that the representative parties in a class action be able to fairly and adequately protect the interests of the class itself.

This court has previously observed that an exception of lack of procedural capacity was not the proper procedural device for raising a substantive issue (in that case, a conflict of interest) in a class action proceeding or derivative suit. See Palowsky v. Premier Bancorp, Inc., 597 So.2d 543, 546 (La. App. 1st Cir. 1992). Further, the Department's exception of improper use of class action incorporates the same arguments that the Department presents in their appeal of the class certification. Accordingly, because both of the Department's arguments in the writ application are more applicable to the issue of whether the class was properly certified, we deny the Department's writ application and address these issues in the class certification analysis below.

The Department's Appeal

The Department's Assignments of Error numbers two through seven challenge the trial court's certification of the class. The class action is a nontraditional litigation procedure permitting a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common or general interest to persons so numerous as to make it impracticable to bring them all before the court. Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La. 9/9/97), 703 So.2d 542, 544. The purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to the representatives who bring the action, but to all others who are "similarly situated," provided they are given adequate notice of the pending class action and do not timely exercise the option of exclusion from the class action. Id.

Louisiana Code of Civil Procedure article 591(A) states:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case. This prerequisite shall not be satisfied if it is necessary for the court to inquire into the merits of each potential class member's cause of action to determine whether an individual falls within the defined class.

The prerequisites for class certification set forth in La. Code Civ. P. art. 591(A) are referred to as the elements of numerosity, commonality, typicality, adequate representation, and objectivity (definability), and all must be present to maintain a class action. State v. Ford Motor Co. , 965 So.2d at 442. The burden of proving the necessary elements is on the party seeking to maintain the class action. Id. Conclusory allegations of a pleading alone are insufficient to establish the existence of a class. Id.

The Department argues on appeal that the Ulrichs, the Allemans, and the other purported class members cannot satisfy the requirements of La. Code Civ. P. art. 591(A) because there is no evidence that all of the purported class members have standing to challenge the constitutionality of Act 131. According to the Department, any purported class members who failed to appeal their respective denials within the 60-day period provided in La. R.S. 47:1625 have lost standing to challenge the constitutionality of Act 131.

Louisiana Revised Statutes 47:1625 states in relevant part:

A. (1) If the collector fails to act on a properly filed claim for refund or credit within one year from the date received by him or if the collector denies the claim in whole or in part, the taxpayer claiming such refund or credit may appeal to the Board of Tax Appeals for a hearing on the claim filed. No appeal may be filed before the expiration of one year from the date of filing such claim unless the collector renders a decision thereon within that time, nor after the expiration of sixty days from the date of mailing by registered mail by the collector to the taxpayer of a notice of the disallowance of the part of the claim to which such appeal relates. (Emphasis added.)

The Department argues that purported class members who allegedly failed to timely appeal their denials pursuant to La. R.S. 47:1625 cannot challenge the constitutionality of Act 131. We agree. In Church Point Wholesale Beverage Co., Inc. v. Tarver , three taxpaying businesses filed suit seeking recovery of taxes paid under La. R.S. 26:342, a beer tax statute, on the grounds that the statute was unconstitutional. 614 So.2d 697, 698-99 (La. 1993). The Supreme Court of Louisiana held that because the taxpayers' right to a refund had already prescribed, there was no actual dispute or controversy. Id. at 708. As a result, the taxpayers had no interest in seeking a judgment declaring the Beer Tax Statute as unconstitutional and therefore lacked standing to seek declaratory judgment. Id. at 708. Accordingly, any opinion rendered on the constitutionality of the Beer Tax Statute would be an advisory opinion and thus prohibited by the constitution. Id. at 708.

As applied to the present case, the potential standing issues factor into the class certification analysis. For example, the issues regarding the standing of the purported class members hinder both the typicality element and the adequate representation element of class certification. The typicality element of La. Code Civ. P. art. 591(A)(3) requires that the claims of the class representatives be a cross-section, or typical, of the claims of all class members. Boyd v. Allied Signal, Inc., 2003-1840 (La. App. 1 Cir. 12/30/04), 898 So.2d 450, 464, writ denied , 2005-0191 (La. 4/1/05), 897 So.2d 606. Typicality is satisfied if the claims of the class representatives arise out of the same event, practice, or course of conduct giving rise to the claims of the other class members, and are based on the same legal theory. Id. at 464-65.

In the present case, it is unclear whether the claims of the class representatives - the Ulrichs and the Allemans - are typical of the purported class members. The Ulrichs and the Allemans were denied a tax credit because of Act 131. Further, the Ulrichs and the Allemans appealed to the Louisiana Board of Tax Appeals within the 60-day appeal window provided for in La. R.S. 47:1625 and, therefore, still have standing to pursue their claims. However, while it is clear that the Ulrichs and the Allemans have standing, the record is devoid as to whether the other purported class members appealed their respective claims to the Louisiana Board of Tax Appeals within the appropriate time period, thus making it unclear whether each purported class member has standing. If a purported class member lacks standing, the Ulrichs and the Allemans will no longer possess claims typical of that class member.

The issues regarding the standing of the purported class members to challenge the constitutionality of Act 131 also relate to whether the Ulrichs and the Allemans can adequately represent the purported class members. The test for determining the existence of adequate representation consists of three elements: (1) the claims of the chosen class representatives cannot be antagonistic to or conflict with those of other class members; (2) the chosen representatives must have a sufficient interest in the outcome to ensure vigorous advocacy; and (3) counsel for the chosen representatives must be competent, experienced, qualified, and generally able to conduct the litigation vigorously. Boyd v. Allied Signal, Inc., 898 So.2d at 465.

It is clear that the Ulrichs and the Allemans have a sufficient interest in the outcome of this case; both testified at the hearing on the motion for class certification that they were entitled to a $12,500 tax credit from the state of Louisiana and subsequently denied that credit because of the cap imposed by Act 131. Further, we do not doubt the competency or qualifications of their chosen counsel. However, although the second and the third elements of adequate representation are satisfied, the first element is not. The claims of the Ulrichs and the Allemans conflict with the claims of any purported class members who lack standing for reasons detailed above. Appellees have not carried their burden of proving whether all of the purported class members timely appealed their respective tax credit denials to the Louisiana Board of Tax Appeals.

For these reasons, we find that the trial court manifestly erred in finding that the plaintiffs satisfied the prerequisites for class action certification set forth in La. Code Civ. P. art. 591(A). Consequently, the trial court abused its discretion in certifying the class action. We reverse the trial court's June 15, 2017 judgment granting the plaintiffs' motion for class action certification and remand this matter to the trial court for further proceedings consistent with this opinion.

DECREE

We deny the writ application 2017-CW-0763 filed by the relator, Kimberly Robinson, Secretary Louisiana Department of Revenue, thereby affirming the trial court's March 27, 2017 judgment overruling the dilatory exception of lack of procedural capacity and the peremptory exception of improper use of class action procedure. We reverse the trial court's June 15, 2017 judgment in 2017-CA-1119, granting the motion to certify the class action filed by the appellees, Justin Ulrich, Gwen Ulrich, Raymond Alleman, and Pam Alleman, individually and on behalf of all others similarly situated. We remand this matter to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed to Appellees, Justin Ulrich, Gwen Ulrich, Raymond Alleman, and Pam Alleman.

WRIT DENIED. JUDGMENT REVERSED AND REMANDED.

Chutz, J. Concurs and Dissents with Reasons

Pettigrew, J. concurs

McClendon, J. Concurs for Reason Assigned.

Welch, J. concurring and dissenting with reasons assigned

McClendon, J., concurring.

Rather than merely reversing the class certification, I would remand the matter to the district court to limit the class to those individuals who sought review with the Board of Tax Appeals and thereafter determine if the class certification requirements under LSA-C.C.P. art. 591 are met.

WELCH, J., concurring in part, dissenting in part.

I respectfully concur in part and dissent in part. I agree with the denial of the Department of Revenue's (the "Department's") dilatory exception raising the objection of lack of procedural capacity and peremptory exception raising the objection of improper use of class action procedure, the subject of 2017 CW 0763.

However, I dissent insofar as I believe the trial court was correct in certifying the class action, the subject of 2017 CA 1119. I believe that the majority errs in reversing the class action certification. A class action is simply a procedural device and does not speak to the merits of the class members' and representatives' claims. As nothing more than a procedural mechanism, a class action affords a method of efficiently and economically managing a large number of claims in which common issues predominate over individual claims. St. Martin v. State, 2009-0935 (La. 12/1/09), 25 So.3d 736, 741.

There is no dispute that the class representatives-Justin Ulrich, Gwen Ulrich, Raymond Alleman, and Pam Alleman-filed a class action seeking to represent other similarly situated individuals who were denied solar tax credits based upon 2015 La. Acts, No. 131, § 1 (eff. June 19, 2015), which amended La. R.S. 47:6030. Prior to the June 19, 2015 effective date of Act 131, La. R.S. 47:6030 provided that Louisiana residents who purchased, leased, or installed qualified solar energy systems were entitled to a solar energy tax credit. It is conceded that the class representatives complied with the statute prior to the effective date of Act 131 and were entitled to a tax credit. The 2015 amendment to La. R.S. 47:6030 placed caps on the solar tax credit and provided that the credits would be granted on a first come, first served basis.

In August 2016, the Department denied the solar energy tax credits sought by the Ulrichs and the Allemans through their 2015 State Income Tax Returns because the solar energy tax credit cap imposed by Act 131 had been met for that year. On September 19, 2016, the Ulrichs and the Allemans timely filed separate appeals of the Department's denials of the solar energy tax credits to the Louisiana Board of Tax Appeals pursuant to La. R.S. 47:1625. Both appeals to the Board of Tax Appeals were designated as a "class action petition to appeal refund denial" and included the language, "individually and on behalf of all others similarly situated." In their tax appeals, the Ulrichs and the Allemans stated, "[b]ecause 2015 La. Act 131 is unconstitutional, a declaratory action has or will be filed in state district court in conjunction with this suit." The purported class representatives argued that Act 131 was unconstitutional because the Act retroactively imposed a cap on solar energy tax credits earned between January 1, 2013, and June 18, 2015.

The Board of Tax Appeals has jurisdiction to certify a class action. St. Martin , 25 So.3d at 740. However, the Board of Tax Appeals does not have jurisdiction to declare an act of the Legislature unconstitutional. In cases where a class action is filed with the Board of Tax Appeals challenging the constitutionality of a statute, the Board of Tax Appeals is under a duty to transfer such cases to a district court of proper venue upon motion of any party. See La. R.S. 47:1432(B).

In accordance with La. C.C.P. art. 596, all appeal delays to the Board of Tax Appeals, filed pursuant to La. R.S. 47:1625, were suspended not only as to the purported class representatives, but also as to all purported members of the class, as defined or described in the petition for class certification. See La. C.C.P. 596(A).

On September 19, 2016, the same day the Ulrichs and the Allemans filed their separate appeals in the Board of Tax appeals, the parties jointly filed a class action petition for declaratory action in the 19th Judicial District Court, East Baton Rouge Parish, State of Louisiana, seeking to have Act 131 declared unconstitutional. The parties attached their respective appeals filed in the Board of Tax Appeals to the class action petition for declaratory action, which was substantially the same as the petitions filed in the Board of Tax Appeals.

By judgment dated June 15, 2017, the trial court granted a motion to certify the class action that was filed by the Ulrichs and the Allemans. The class was certified as follows: "Louisiana taxpayers that qualified for the La. R.S. 47:6030 Solar Credit between January 1, 2013 and June 18, 2015 and were denied the Solar Credit due to 2015 La. Act. 131." The trial court found that based upon the evidence presented at the hearing on the motion to certify the class action, through the testimony of the class representatives, the class members met all the requirements to challenge the constitutionality of Act 131. Secondly, the trial court found that the five threshold prerequisites for class action certification set forth in La. C.C.P. art. 591 -often referred to as numerosity, commonality, typicality, adequate representation, and an objectively definable class-were met based upon the Department's responses to the First Set of Admissions, Interrogatories, and Request for Production of Documents propounded by the class representatives, and more specifically, Interrogatory No. 1, which states:

Please identify how many taxpayers have been denied the Solar Credit based upon 2015 La. Act 131.

The Department's answer to Interrogatory No. 1 states, in pertinent part:

To the extent this request relates specifically to the denial of the solar energy credit because the statutory cap was exceeded at the time the tax return was filed or credit requested, and subject to the foregoing objections and only as to returns filed through November 30, 2016, the Department responds that through the foregoing date[,] 1,265 solar energy tax credit claims made by Taxpayers have been denied because of the statutory cap imposed by La. R.S. 47:6030, as amended.

It is important to note that nowhere in the "General Objections" filed in response to the class representatives' first set of interrogatories the Department did challenge the standing of the class representatives to challenge the constitutionality of Act 131, nor did the Department challenge the timeliness of the class representatives' respective appeals to the Board of Tax Appeals, which were timely filed pursuant to La. R.S. 47:1625. Furthermore, the Department presented absolutely no evidence whatsoever at the hearing on class certification.

Curiously on appeal, the Department attacks the class certification on the basis that the class members, not the class representatives, did not timely appeal the Department's denial of their solar energy tax credits to the Board of Tax Appeals pursuant to La. R.S. 47:1625. Therefore, based upon the case of Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697 (La. 1993), the Department argues that the class members lack standing to challenge the constitutionality of Act 131.

First, the Department seeks to interject and apply a peremptory exception to the class members' standing to challenge the constitutionality of Act 131 based upon absolutely no evidence. Secondly, this position is totally contradictory to the answer provided by the Department in response to Interrogatory No. 1, wherein the Department stated that 1,265 taxpayers were denied solar energy tax credits because of the cap imposed by Act 131. Thirdly, the Church Point case did not involve a class action certification and is not relevant to this matter. The class representatives appealed the denial of their claims "individually and on behalf of all others similarly situated" on September 19, 2016, and therefore, pursuant to La. C.C.P. art. 596, all appeal delays set forth in La. R.S. 47:1625 were suspended.

The majority errs in finding, despite the well-pled facts of the class action petition for declaratory action establishing a class cause of action challenging the constitutionality of Act 131, that the class members have no right of action to challenge the constitutionality of Act 131 based upon the class members' alleged failure to comply with La. R.S. 47:1625. The majority's finding is based upon no evidence whatsoever. Furthermore, the decision flies in the face of this court's decision in Robichaux v. State ex rel. Dep't of Health & Hosps., 2006-0437 (La. App. 1 Cir. 12/28/06), 952 So.2d 27, 34, writs denied, 2007-0567, 2007-0580, 2007-0583 (La. 6/22/07), 959 So.2d 503, 504, 504, wherein then-judge and now Justice Hughes cautioned:

The only issue to be considered by the trial court in ruling on a certification, and by this court on review, is whether the case at bar is one in which the procedural device of a class action is appropriate. In determining the propriety of a class action, the court is not concerned with whether the plaintiffs have stated a cause of action or the likelihood that they ultimately will prevail on the merits."

The trial court, based upon the evidence presented at the hearing on the class representatives' motion for class certification, was correct in certifying the class action. The majority errs in reversing the trial court's June 15, 2017 judgment granting the motion to certify the class action filed by the plaintiffs-appellees-Justin Ulrich, Gwen Ulrich, Raymond Alleman, and Pam Alleman-and remanding the matter for further proceedings. For these reasons, I respectfully dissent.

CHUTZ, J., concurring in part and dissenting in part.

I concur with that portion of the majority opinion denying the Department of Revenue's writ application, which sought review of the trial court's denial of the Department of Revenue's exceptions of lack of procedural capacity and improper use of class action proceedings. I disagree, however, with the majority's reversal of the trial court judgment certifying the class action. I dissent from that portion of the majority opinion for the reasons expressed by Judge Welch in his dissent. Additionally, I point out that one of the primary purposes of a class action is to achieve economies of time, effort, and expense. McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612, 619 (La. 1984) ; Lailhengue v. Mobil Oil Company, 94-2114 (La. App. 4th Cir. 6/7/95), 657 So.2d 542, 548. I believe the majority's acceptance of the appellant's position that each potential class member must prove his standing prior to the certification of the class, defeats the objective of judicial economy. In my view, the trial court neither committed manifest error in its factual determinations nor abused its discretion in certifying the class in this matter.

      Louisiana Revised Statutes 47:6030 has subsequently been amended by 2015 La. Acts, No. 357, § 1 (eff. June 29, 2015) and 2017 La. Acts, No. 413, § 1 (eff. June 26, 2017).

      The Department filed declinatory exceptions of lack of subject matter jurisdiction and lis pendens, dilatory exceptions of prematurity and lack of procedural capacity, and a peremptory exception of improper use of class action procedure.

      Initially, this court declined to consider the Department's writ application due to the application's failure to comply with the Uniform Rules of Louisiana Courts of Appeal insofar as the Department did not include a copy of the exception pleading with its writ application. See Rule 4-5(C)(8), Uniform Rules of Louisiana Courts of Appeal ; see also Justin Ulrich, Gwen Ulrich, Raymond and Pam Alleman, individually and on behalf of all others similarly situated v. Kimberly Robinson, Secretary Louisiana Department of Revenue, 2017-0234 (La. App. 1 Cir. 5/30/17), 2017 WL 2334979 (unpublished writ action). The Department subsequently filed the instant writ application with this court that contained all pertinent documentation. See Rule 2-12.2, Uniform Rules of Louisiana Courts of Appeal ; see also Justin Ulrich, Gwen Ulrich, Raymond and Pam Alleman, individually and on behalf of all others similarly situated v. Kimberly Robinson, Secretary Louisiana Department of Revenue, 2017-0763 (La. App. 1 Cir. 12/28/17) (unpublished writ action).

      We note that the Department raised two other questions on appeal. Specifically, the Department alleged that it had not had an adequate opportunity to pursue discovery and that 2017 La. Acts, No. 413, § 1 (eff. June 26, 2017), amending La. R.S. 47:6030 moots the necessity to make any determination in this case. Because we are reversing the trial court's certification, we pretermit ruling on the issues raised in the Department's Assignments of Error numbers one and eight.

      Louisiana Revised Statutes 47:6030 has subsequently been amended by 2015 La. Acts, No. 357, § 1 (eff. June 29, 2015) and 2017 La. Acts, No. 413, § 1 (eff. June 26, 2017). Those amendments are not at issue on appeal.

      Interrogatory No. 1 is found in Exhibit A, pp. 8-9.

      In Church Point, the taxpayer sought a refund of money paid pursuant to a possibly unconstitutional statute. The Church Point court concluded that the Claims Against the State procedure, La. R.S. 47:1481 -1486, provided the proper vehicle for the recovery of taxes paid without protest pursuant to an unconstitutional statute. 614 So.2d at 706.