October 19, 2016 - Opinions - Louisiana Supreme Court

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<table cellpadding="5" cellspacing="0" width="90%"><tbody><tr valign="top"><td valign="top" width="63%">FOR IMMEDIATE NEWS RELEASE</td><td valign="top" width="37%"><div align="right">NEWS RELEASE #057</div></td></tr><tr valign="top"><td valign="top">FROM: CLERK OF SUPREME COURT OF LOUISIANA</td><td valign="top">&nbsp;</td></tr></tbody></table>&nbsp;The Opinions handed down on the&nbsp;19th day of October, 2016, are as follows:&nbsp;BY JOHNSON, C.J.: <a href="/opinions/2016/16CC0708.OPN.pdf">2016-CC-0708	ROGER ALICEA, ET AL. v. ACTIVELAF, LLC, ET AL.</a>&nbsp;(Parish of Lafayette)Accordingly, we find the lower courts correctly overruled Sky Zone&rsquo;s exception of prematurity. Therefore, the rulings of the lower courts are affirmed.&nbsp; AFFIRMED AND REMANDED TO THE DISTRICT COURT.WEIMER, J., dissents and assigns reasons. GUIDRY, J., dissents and assigns reasons. CLARK, J., concurs with reasons. HUGHES, J., concurs with reasons. CRICHTON, J., additionally concurs with reasons.&nbsp;<a href="/opinions/2016/16CC0818.OPN.pdf">2016-CC-0818	JAMES DUHON v. ACTIVELAF, LLC, D/B/A SKYZONE LAFAYETTE AND UNDERWRITERS AT LLOYDS, LONDON</a>&nbsp;(Parish of E. Baton Rouge)Accordingly, we find the court of appeal erred in reversing the district court&rsquo;s ruling on Sky Zone&rsquo;s exception of prematurity. Therefore, the ruling of the court of appeal is reversed, and the ruling of the district court is reinstated.&nbsp; REVERSED AND REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS.WEIMER, J., dissents and assigns reasons. GUIDRY, J., dissents and assigns reasons. CLARK, J., concurs with reasons. HUGHES, J., concurs with reasons. CRICHTON, J., additionally concurs and assigns reasons.&nbsp;&nbsp;BY KNOLL, J.: <a href="/opinions/2016/16C0846.OPN.pdf">2016-C -0846	BRANDI BILLEAUDEAU, VERONICA BILLEAUDEAU, AND JOSEPH BILLEAUDEAU v. OPELOUSAS GENERAL HOSPITAL AUTHORITY, DR. KONDILO SKIRLIS-ZAVALA, AND THE SHUMACHER GROUP OF LOUISIANA, INC.</a>&nbsp;(Parish of St. Landry)For these reasons, we hereby affirm the judgment of the Court of Appeal. AFFIRMED.JOHNSON, C.J., dissents and assigns reasons. WEIMER, J., concurs and assigns reasons. GUIDRY, J., dissents and assigns reasons. CLARK, J., dissents for the reasons assigned by J. Guidry and assigns additional reasons.&nbsp;&nbsp;&nbsp;BY GUIDRY, J.: <a href="/opinions/2016/16C0055.OPN.pdf">2016-C -0055	RICHARD J. BORJA v. FARA ST. BERNARD PARISH GOVERNMENT</a>For the reasons set forth above, we hereby reverse the court of appeals&rsquo; judgment affirming the workers&rsquo; compensation judge&rsquo;s rulings sustaining the exception of prescription and the exception of res judicata.&nbsp; REVERSED and REMANDED.&nbsp;&nbsp;BY CLARK, J.:<a href="/opinions/2016/15KH0100.OPN.pdf">2015-KH-0100	STATE EX REL. ALDEN MORGAN v. STATE OF LOUISIANA</a>&nbsp;(Parish of Orleans)For the reasons expressed herein, we hold the categorical rule in Graham applies to the defendant&rsquo;s 99-year sentence without parole insofar as it is the functional equivalent of a life sentence and denies him a meaningful opportunity for release, to which he is entitled. Because it is an effective life sentence, it is rendered illegal pursuant to Graham and can be corrected at any time under La. C. Cr. P. art. 882. We order the deletion of the defendant&rsquo;s parole ineligibility and order that he be designated as parole-eligible in accordance with La. R.S. 15:574.4(D). As noted above, we are not ordering the defendant&rsquo;s immediate release, nor or we guaranteeing his eventual release. Rather, the defendant&rsquo;s access to the Board&rsquo;s consideration for parole will satisfy the mandate of Graham.&rdquo; Shaffer, 77 So.3d at 943. All other claims raised are procedurally barred under well-settled law. La. C.Cr.P. art. 930.3 provides no basis for post-conviction claims of trial court sentencing error. Melinie, supra. AFFIRMED WITH INSTRUCTIONS.JOHNSON, C.J., additionally concurs and will assign reasons. CRICHTON, J., additionally concurs and assigns reasons.&nbsp;<a href="/opinions/2016/15OK1233.OPN.pdf">2015-OK-1233	STATE OF LOUISIANA v. SEAN HOLLOWAY</a>&nbsp;(Parish of Lafayette)Accordingly, we find that Art. 890.1, effective May 17, 2012, applies by its plain language &ldquo;upon conviction, in sentencing the offender&rdquo; and therefore that version of the article, rather than the former article pertaining to designation of crimes of violence, applied when Holloway was convicted and sentenced in 2014. Therefore, the ultimate judgment of the court of appeal, which vacated the district court&rsquo;s January 29, 2015 designation of Holloway&rsquo;s conviction as a crime of violence, is affirmed. AFFIRMED.JOHNSON, C.J., concurs. CRICHTON, J., additionally concurs with reasons.&nbsp;&nbsp;BY HUGHES, J.: <a href="/opinions/2016/14KA1449.OPN.pdf">2014-KA-1449	STATE OF LOUISIANA v. ROBERT LEROY MCCOY</a>&nbsp;(Parish of Bossier)For the reasons assigned herein, the defendant&rsquo;s conviction and death sentence are affirmed. In the event this judgment becomes final on direct review when either: (1) the defendant fails to petition timely the United States Supreme Court for certiorari; or (2) that Court denies his petition for certiorari; and either (a) the defendant, having filed for and been denied certiorari, fails to petition the United States Supreme Court timely, under its prevailing rules, for rehearing of denial of certiorari; or (b) that Court denies his petition for rehearing, the trial judge shall, upon receiving notice from this court under LSA-C.Cr.P. art. 923 of finality of direct appeal, and before signing the warrant of execution, as provided by LSA-R.S. 15:567(B), immediately notify the Louisiana Public Defender Board and provide the Board with reasonable time in which: (1) to enroll counsel to represent the defendant in any state post-conviction proceedings, if appropriate, pursuant to its authority under LSA-R.S. 15:178; and (2) to litigate expeditiously the claims raised in that original application, if filed, in the state courts. CONVICTION AND SENTENCE AFFIRMED.CRICHTON, J., additionally concurs and assigns reasons.&nbsp;&nbsp;PER CURIAM: <a href="/opinions/2016/14BA1338.OPN.pdf">2014-BA-1338	IN RE: COMMITTEE ON BAR ADMISSIONS CFN-8972</a>CONDITIONAL ADMISSION GRANTED.WEIMER, J., dissents and assigns reasons. HUGHES, J., dissents in part for the reasons assigned by Crichton, J. CRICHTON, J., dissents in part and assigns reasons.&nbsp;<a href="/opinions/2016/15K0995.OPN.pdf">2015-K -0995	STATE OF LOUISIANA v. JOHNNY LEE HARRIS</a>&nbsp;(Parish of St. Landry)The primary distinction between Nelson and the present case is that there was a substantially stronger showing of discriminatory effect in Nelson. Regarding Batson steps two and three, however, the cases are indistinguishable. As in Nelson, the district court here dismissed defendant&rsquo;s proffered reasons for two strikes although they were facially race-neutral. As in Nelson, it is clear the district court merged the steps of the Batson analysis which improperly shifted the burden of proof to defense counsel&mdash;the proponent of the strike. The record unquestionably demonstrates the district court never made a finding that the race-neutral reasons offered by counsel were pretextual. Although none of the proffered reasons appear to inherently violate equal protection, the court nonetheless rejected them for no specific reason (other than that Duplechain indicated she could fairly serve as a juror). The court erred thus in putting the burden of persuasion on the defendant. See State v Green, 655 So. 2d 272, 290 (La. 1995). Batson makes clear that the burden is on the opponent of the strike to show purposeful discrimination. See Batson, 476 U.S. at 94, 106 S.Ct. at 1721.&nbsp; REVERSED AND REMANDED.&nbsp;<a href="/opinions/2016/16B0456.OPN.pdf">2016-B -0456	IN RE: EDWARD BISSAU MENDY</a>Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, the brief filed by the ODC, and oral argument, it is ordered that the name of Edward Bissau Mendy, Louisiana Bar Roll number 22117, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. It is further ordered that respondent shall make restitution to his victims. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, &sect; 10.1, with legal interest to commence thirty days from the date of finality of this court&rsquo;s judgment until paid.CLARK, J., dissents and assigns reasons. CRICHTON, J., dissents in part and would impose permanent disbarment.&nbsp;<a href="/opinions/2016/16B0967.OPN.pdf">2016-B -0967	IN RE: ARTHUR GILMORE, JR.</a>Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Arthur Gilmore, Jr., Louisiana Bar Roll number 1059, be and he hereby is disbarred, retroactive to June 9, 2013, the date of his most recent interim suspension. Respondent shall also be given credit for the time he served on interim suspension during the period of June 19, 2011 to September 21, 2011 and during the period of May 2, 2012 to April 3, 2013. Respondent&rsquo;s name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, &sect; 10.1, with legal interest to commence thirty days from the date of finality of this court&rsquo;s judgment until paid.HUGHES, J., dissents and would impose a lesser sanction.
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