text:
    STATE of Louisiana v. Yalanis BROWN.
    No. 03-KA-581.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for Appellee.
    Bruce G. Whittaker, New Orleans, LA, for Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | .MARION F. EDWARDS, Judge.

Defendant appeals his conviction and sentence for possession of cocaine in excess of 400 grams, and his sentence for possession with intent to distribute marijuana. For the following reasons, the defendant’s conviction and sentences are affirmed.

On October 20, 2000, the Jefferson Parish District Attorney filed a bill of information charging defendant, Yalanis Brown, with: Count 1, possession with intent to distribute marijuana in violation of LSA-R.S. 40:966(A), and Count 2, possession of cocaine in excess of 400 grams in violation of LSA-R.S. 40:967(F), both of which allegedly occurred on or about September 26, 2000. Brown was arraigned on November 30, 2000 and pled not guilty. On July 10, 11, 12, 13, and 16, 2001, the case was tried before a 12-person jury which unanimously found Brown guilty as charged. Brown’s motion for new trial was denied on September 13, 2001.

|aOn September 18, 2001, the trial court sentenced Brown to imprisonment at hard labor for 30 years on Count l and imprisonment at hard labor for 30 years without benefit of parole, probation, or suspension of sentence on Count 2, with the sentences to run concurrently. The trial court also ordered Brown to pay a fine of $250,000. On that same date, Brown orally moved for an appeal and filed a written motion for appeal that was granted.

At trial, the State introduced evidence to show that, in September of 2000, Jefferson Parish Sheriffs Office (JPSO) narcotics agents learned that a package containing a controlled dangerous substance was being shipped by United Parcel Service (UPS) from California to 321 Ruby Street, Apartment # 210, in Gretna, Louisiana, which is Brown’s home address. After obtaining a search warrant, JPSO agents opened the package at the UPS station and found cocaine inside a VCR. On September 26, 2000, JPSO agents conducted a controlled delivery of that package to 321 Ruby Street using Deputy David Randell as the UPS delivery person.

Deputy Randell testified that when he arrived at the apartment complex, someone, later identified as Brown, was waiting for him. When Brown saw the UPS hat and the package, he asked Deputy Randell if he was the UPS man with a package-to deliver. After Deputy Randell responded that he was, Brown led him upstairs to the apartment. When Brown opened up the door, he called to a man who was lying on the floor sleeping. Deputy Randell told that man that the package was here. The man got up, went to the door, and signed for the package.

As he was delivering the package, Deputy Randall had backup officers who were watching. After Deputy Randell left, he informed those officers that he had made the delivery. He gave them a description of the man who had signed for it and what he had seen inside the apartment.. Deputy Randell described the man who signed for the package as heavy-set, weighing approximately 230 to 240 |4pounds. He identified the man who let him into the complex as smaller in stature, but taller in height, weighing approximately 160-170 pounds. He identified the man who signed the package in .the courtroom; however, the record does not indicate the identity of that individual.

The testimony at trial revealed that, as the backup officers were about to knock on the door, they heard it opening. As Brown exited the residence, the officers “took him down” to the ground for their safety and detained him with handcuffs until they were able to see if anyone else was inside the residence. Sergeant Jason Renton stayed downstairs with Brown. The other agents went inside of the residence and detained the other individual. Sergeant Renton advised Brown of his Miranda rights, and defendant made a statement which Sergeant Renton recorded.

In his statement dated September 26, 2000, Brown stated that he was about to leave his residence that morning when officers came to his door and that he “dropped to the floor.” Brown stated that a male, Darryan Washington, had come to his residence about an hour and a half before the UPS man came and before the agents got there. He did not know what time Washington arrived. He said that Washington had told him the UPS man was supposed to be coming and to look out for him. Brown said he told Washington he would go outside because UPS would not be able to get into the gate.

Brown stated that, one day prior, Washington called and got his address and told him that UPS was going to deliver parts for his truck. Brown said that he did not know whether Washington had a house, that he did not know where Washington lived, that he did not have much affiliation with him, and that he had known Washington a long time. Brown said he thought it was strange that Washington was having something delivered to his home.

15Brown stated that the UPS man asked him what his name was and told him he had a delivery in his name. Brown explained to the UPS man that the package was not for him but for his friend. Brown walked the UPS man up to his apartment and woke up Washington who was asleep on the floor. Washington got up and signed for the package. Once Washington signed for it, he asked Brown to bring him home. Brown said he told Washington that he thought he observed some “nares” outside. Washington peeked out the window, and then he ran upstairs.

Brown realized that Washington was panicking, so he said he was going to leave because he did not want to get “caught up in it.” When Brown opened the door, the agents rushed in and he got on the ground. Brown said he did not know what Washington had on him when he came to his apartment. He said that Washington did not go to his house the day before. Brown stated that Washington found out he had moved, and Brown was showing him his apartment.

Brown said he did not know whether Washington had anything in his hands when he came over because he did not pay attention. He said that when Washington got there Washington went upstairs. Brown said he did not know Washington was having drugs delivered to his apartment. Brown stated he knew nothing about the kilo of cocaine or the six ounces of crack cocaine found inside his residence in the upstairs bedroom, and that he had been in the apartment since Saturday, September 23.

Brown said he did not watch Washington when he came in so he did not know whether Washington had brought in the five pounds of marijuana found in his apartment. Brown said that the marijuana and cocaine found in his apartment were not his and he did not know anything. He said he was not holding it for anybody. Brown stated he probably would have noticed if Washington had carried a big gun into his apartment and maybe a small gun. He said Washington was too big to hide anything in his clothes.

| fiBrown said he had a job at a barber shop, Get Fresh, where he cuts hair sometimes. He said the last job he had with a paycheck stub was at Avondale, where he worked for a few days about a year ago. He said he had “income tax,” was doing a little side work, and got help from his mother and a girlfriend. Brown stated that he had saved money to get his furniture and “stuff.” He said that he did odd jobs painting and that he got a “good bit” of money from a friend of his who did roofing work. Defendant explained that his DVD, digital CD player, big screen television, the stereo equipment, and the surround sound were gifts, that his living room set was “pretty cheap,” and that all of those items only cost about $2,500.

Sergeant Renton testified that, on September 26, Brown had thousands of dollars worth of drugs and merchandise in his apartment, yet Brown admitted in his statement that he had not had a job where he received a paycheck in approximately a year prior to his arrest.

After Sergeant Renton interviewed Brown, he listed the items that were removed from the residence on the return search warrant. Sergeant Renton explained that Agent Corey Wilson was upstairs where the majority of the search was being conducted, writing down what was found, where it was found, and who found it.

The JPSO agents who executed the previously prepared search warrant found the following items in Brown’s second floor bathroom closet: a kilogram (1000 grams) of cocaine in the VCR; 29 individually packaged bags of crack cocaine (171.45 grams), a digital scale, and razor blades in a Crown Royal bag hanging on a hangar; 1,578.75 grams of marijuana in a large Rubbermaid container on the floor of the closet; plastic bags on the shelf in the closet; a .9 millimeter pistol; a magazine loaded with 12 rounds of ammunition; and an additional 16 rounds of .9 millimeter ammunition. The agents also recovered two clear plastic |7bags of cocaine (17.59 grams) in Brown’s nightstand next to his bed. Brown stipulated that the marijuana was intended to be distributed.

Sergeant Vignes testified that he located a black leather jacket hanging inside Brown’s closet about three or four items away from the Crown Royal bag, and that he had seen Brown wearing that jacket at a separate time. He searched the black leather jacket, which was a size large or extra-large, and found two bags containing a white rock-like substance later determined to be cocaine in the pockets.

Detective John Elton Scalen, Jr. testified that Washington told him he had lied to Brown about what was going to be in the package. Washington also told Detective Scalen that he told defendant auto parts were going to be in the package. Detective Scalen testified that the name on the package was “Tarra,” a fictitious name. Sergeant Renton testified that the package containing the VCR was addressed to Trish Powell.

Agent William Metz testified that Washington told him on the way to the detective bureau that not only did Brown have nothing to do “with this,” but that he had told Brown that he would be receiving a box of car parts. Washington told Agent Metz that he sells marijuana to Brown, that it was the first time he had received cocaine from the man in California, and that they used the VCR to ship narcotics and money back and forth. Agent Metz testified that Washington told him he owed $18,000 to the man in California, and that other than the kilo being delivered to Brown’s apartment, there was no evidence that Brown was involved in that purchase.

Sergeant Renton testified that the wholesale value of the kilo of cocaine recovered from defendant’s apartment was $20,000, and the street value was $100,000. He explained that the five pounds of marijuana found in Brown’s apartment was worth $5,000, that the six ounces of crack cocaine was worth | ^approximately $11,000, and that the other narcotics found were worth approximately $15,000 to $20,000. Sergeant Renton identified State’s Exhibit 13 as 29 plastic bags containing crack cocaine. He testified that each bag was packaged for distribution, and that each bag was worth $50 to $200. Sergeant Renton identified State’s Exhibit 14 as another package of crack cocaine.

Sergeant Todd Vignes testified that he participated in the search of the apartment. He stated that he searched the left-hand side of the closet where he found a Crown Royal bag that was hanging on a hangar. Inside that bag, he found 29 individually packaged bags of crack cocaine, approximately a quarter ounce each, razor blades and a digital scale. Sergeant Vignes testified that in his experience, those items were paraphernalia associated with the packaging and distribution of drugs. He explained that razor blades were used to cut the large brick of crack into quarter ounce sizes, and that the scale was used to weigh and verify the amount to be sold.

Sergeant Vignes testified that the value of the 29 bags of cocaine was approximately $300, but that if it was cut up into individual rocks, it could be sold for $20 apiece, or approximately $500 total. He explained that, based on his experience in the narcotics division, it was his opinion that the sandwich bags in the closet, not being close to the kitchen, coupled with the hand-held scale, indicated that it was packaging material and paraphernalia associated with the packaging and distribution of a controlled substance.

Sergeant Bruce Harrison was qualified as an expert in the use, packaging, distribution, and value of controlled dangerous substances. He testified that it would not be logical for a drug dealer to have a kilo of cocaine shipped across the country to an unknowing dupe’s home and then to go to that home to pick up the shipment and bring an additional four pounds of marijuana, another 200 grams of 19cocaine, baggies, a scale, and a gun to that home. Sergeant Harrison explained that if he was a drug dealer and was using the unknowing dupe to receive a package containing drugs, he would not want to “dirty up” that location in the event that the package was being tracked. He said it would not make sense unless the dupe is not a dupe and he is involved with the kilo. On cross-examination, Sergeant Vignes testified that the 29 bags of cocaine indicated a situation involving a volume dealer who supplied the street level dealers.

The defense introduced evidence to show that Washington arranged to have the package containing the VCR and the kilogram of cocaine shipped to defendant’s apartment, that the package was signed for by Washington, that all of the narcotics in defendant’s apartment belonged to Washington and not to Brown, and that Brown knew nothing about the narcotics.

After hearing the evidence, the jury found defendant guilty as charged.

In his first assignment of error, Brown argues that the evidence was legally insufficient to support his conviction for possession of 400 or more grams of cocaine. He contends that: (1) the evidence showed he had nothing to do with the shipment or the receipt of the package containing the cocaine; (2) co-defendant Washington signed for and received the package; (3) Washington told the agents that defendant had nothing to do with the package, and that he had told Brown the package contained auto parts; (4) Agent Metz admitted that while the package was delivered to Brown’s apartment, there was no evidence to suggest that the cocaine in the package was for Brown or that Brown knew of its existence; and (5) Brown was leaving the apartment as the agents entered, the cocaine never having been removed from the VCR or otherwise exposed. The State responds that the evidence was sufficient to support the conviction.

The standard for appellate review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, | inany rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypotheses of innocence.” The requirement of LSA-R.S. 15:438 does not establish a standard separate from the Jackson standard, but rather provides a helpful methodology for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt.

Brown was convicted of possession with intent to distribute marijuana in violation of LSA-R.S. 40:966(A) and possession of cocaine in excess of 400 grams in violation of LSA-R.S. 40:967(F). On appeal, Brown does not argue that the evidence was insufficient to convict him of possession with intent to distribute marijuana; in fact, he stipulated at trial that the marijuana was intended to be distributed. Rather, Brown argues on appeal that the evidence was insufficient to convict him of possession of cocaine in excess of 400 grams.

To support a conviction for possession of cocaine, the State must prove that the defendant was in possession of the cocaine and that he knowingly possessed it. The State, however, need only establish constructive possession of a controlled dangerous substance, rather than actual possession, to support a conviction. A person may be in constructive possession of a drug even though it is not in his physical custody, if it is subject to his dominion and control.

| n Guilty knowledge is an essential element of the crime of possession of contraband, and such knowledge may be inferred from the circumstances. Proximity to the drug, or association with the possessor, may establish a prima facie case of possession when colored by other evidence. However, the mere presence of the defendant in the area where a controlled dangerous substance is found, or mere association with a person in possession of the substance, is insufficient to constitute constructive possession.

Several factors may be considered in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession. They are (1) the defendant’s knowledge that illegal drugs were in the area; (2) his relations with the person found to be in actual possession; (3) the defendant’s access to the area where the drugs were found; (4) evidence of recent drug use by the defendant; (5) the existence of paraphernalia; and (6) evidence that the area was frequented by drug users.

In State v. Ginorio defendant argued that the evidence was insufficient to prove that he possessed the cocaine seized from his residence. In Ginorio, several minutes before a search warrant was executed, defendant was seen arriving at his residence accompanied by Francisco Gomez, who was carrying a black plastic bag. The police found the black plastic bag wrapped in a towel under a mop, immediately outside the kitchen door, near the backyard of defendant’s residence. Officer Jacques had arranged to purchase a large quantity of cocaine from Evelio Miranda approximately 20 feet from defendant’s residence. A scale, similar to L ¿those used in drug trafficking, was found on the kitchen table. The court found that the evidence produced in the case, viewed in the light most favorable to the prosecution, revealed that any rational trier of fact could have concluded beyond a reasonable doubt that defendant was in constructive possession of the cocaine.

In reaching its conclusion the Ginorio court cited State v. Walker, and stated:

In State v. Walker, 514 So.2d 602 (La.App. 4th Cir.1987), officers found, under the rear of the defendant’s house, under a support beam, a plastic bag containing cocaine. Inside the house, the officers found evidence indicating drug trafficking, i.e. plastic bags, plastic bag seals, two amber colored bottles containing a white substance often used to cut cocaine, a .38 caliber revolver, and a scale. This court found that the items seized from the house indicated that the defendant exercised dominion and control over the premises where the cocaine was found and, considering these facts in the light most favorable to the prosecution, any rational trier of fact could have concluded beyond a reasonable doubt that the appellant was in constructive possession of the cocaine.

In the instant case, the record reveals that the kilogram (1000 grams) of cocaine was found inside the VCR in the bathroom closet in the rear part of Brown’s upstairs bedroom. Along with the kilogram of cocaine, the police found in that same closet 29 individually packaged bags of crack cocaine (171.45 grams), a digital scale, razor blades, plastic sandwich bags, 1578.75 grams of marijuana in a large Rubbermaid container, a .9 millimeter pistol, a magazine loaded with 12 rounds of ammunition, and an additional 16 rounds of .9 millimeter ammunition. The police also found cocaine in the drawer of Brown’s nightstand next to his bed and in the pockets of a black leather jacket that fit Brown’s physique hanging in his closet.

Based on the foregoing, we find that the State established that the cocaine was subject to Brown’s dominion and control since it was found in his upstairs | ^bathroom closet. Although Brown claimed in his statement he knew nothing about the drugs, his guilty knowledge could be inferred from the circumstances: Brown gave Washington his address so the package containing the cocaine could be shipped there; Brown’s proximity to the cocaine (i.e. that it was found in his closet in his apartment); evidence indicative of drug trafficking was found in defendant’s apartment, i.e., razor blades, plastic sandwich bags, a digital scale, a gun, and ammunition; and defendant’s admission in his statement that he tried to leave the scene after he saw “nares” outside and observed Washington running around the apartment. Additionally, Sergeant Harrison testified that the circumstances did not indicate that Brown was duped.

The jury, faced with conflicting evidence, apparently found the testimony of the State witnesses to be more credible and rejected Brown’s theory that the drugs did not belong to him and that he had no knowledge of them or how they got into his apartment. The credibility of the witnesses is within the sound discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. The credibility of witnesses will not be reweighed on appeal.

Accordingly, based on a review of the record, we find that the State sufficiently proved beyond a reasonable doubt that the defendant was guilty of possession of cocaine in excess of 400 grams.

In his second assignment of error, Brown contends that the trial court improperly restricted his right to present a defense.

Specifically, Brown states that his defense was to show that the package of cocaine belonged to Washington and that in an effort to present that defense, Brown attempted to show that Washington was a fugitive from justice by eliciting testimony from Sergeant Renton. However, the trial court refused to allow the [14testimony in question. Brown contends that the trial court erred in failing to allow him to elicit this testimony.

As the State correctly points out in its brief, Brown failed to lodge a contemporaneous objection to the court’s ruling on this issue. Therefore, we find that Brown defendant is precluded from raising this issue on appeal. The purpose of the contemporaneous objection rule is to put the trial judge on notice of the alleged irregularity so that he may cure the problem and to prevent the defendant from gambling for a favorable verdict and. then resorting to appeal on errors that might easily have been corrected by objection.

In his last assignment of error, Brown argues that his two 30-year concurrent sentences, the maximum terms of imprisonment available,, are constitutionally excessive because he is 25 years old, a first offender, and the crimes were non-violent. The State responds that the sentences were not excessive, and that the trial judge did not abuse his discretion.

Brown did not file a motion for reconsideration of sentence, nor did he orally object to the sentence after it was imposed. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. A reviewing [ lscourt will not set aside a sentence as excessive if the record supports the sentence imposed. Factors the court may consider in reviewing the sentencing judge’s discretion are: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts.

Prior criminal activity is one of the factors to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions.

In the instant case, on September 18, 2001, at the sentencing hearing, defense counsel stated that Brown had one conviction as a juvenile, and that the other conviction was the matter he had pled guilty to after he was found guilty in this case. Prior to sentencing, the trial judge stated:

The Court has had an opportunity to review the pre-sentence investigation report. Also, this case was tried in this division for a few days. I had an opportunity to hear all of the facts involved. I’ve considered the guidelines under 894.1. I’ve taken into account your criminal history, your family history, the facts of the case, and whether a lesser sentence would deprecate the seriousness of this offense.

The trial judge subsequently sentenced Brown on Count 1 (marijuana conviction) to imprisonment at hard labor for 30 years and on Count 2 (cocaine conviction) to imprisonment at hard labor for 30 years without benefit of parole, probation, or suspension of sentence, with the sentences to run concurrently. The trial judge also ordered Brown to pay a fine of $250,000 in connection with Count |1fi2. As such, the trial judge sentenced Brown to the maximum sentence for possession with intent to distribute marijuana and the mandatory minimum sentence for possession of over 400 grams of cocaine.

Brown was convicted of Count 1, possession with intent to distribute marijuana in violation of LSA-R.S. 40:966(A). The trial judge sentenced defendant to 30 years of imprisonment at hard labor.

At the time the crime was committed (September 26, 2000), LSA-R.S. 40:966(B)(2) (footnote added) provided as follows:

Any other controlled dangerous substance classified in Schedule I, shall upon conviction be sentenced to a term of imprisonment at hard labor for not less than five years nor more than thirty years and pay a fíne of not more than fifty thousand dollars.

LSA-R.S. 40:966(B)(2) was amended by Acts 2001, No. 403 § 4, effective June 15, 2001, to require that at least five years of the sentence shall be served without benefit of parole, probation, or suspension of sentence. The provision regarding the fine remained the same. The provision of the act only had prospective effect.

In the instant case, Brown committed the crime prior to the effective date of the statute, September 26, 2000; however, he was sentenced after the effective date of the statute (September 18, 2001). The supreme court was faced with a similar situation in State v. Sugasti In Sugasti, the supreme court held that those who engage in criminal activity must face the consequences of their actions, including the penalty provisions that apply as of the date of the offense.

After a review of the record, we find that the maximum sentence of 30 years at hard labor on the possession with intent to distribute marijuana conviction was not excessive. The record shows that the trial judge reviewed the PSI; heard the facts of the case at trial; considered the guidelines of LSA-C.Cr.P. art. 894.1; took 117into account Brown’s criminal history and family history; and considered whether a lesser sentence would deprecate the seriousness of this offense. The record reflects that defendant was in possession of a large amount of marijuana at the time of his arrest. Additionally, the PSI indicates that Brown has a prior record of drug arrests, and that he was convicted of another drug possession offense on August 1, 2001. In light of the foregoing, we find that the trial court did not abuse its sentencing discretion, and that Brown’s sentence on the marijuana conviction was not constitutionally excessive.

Brown was also convicted of Count 2, possession of cocaine in excess of 400 grams in violation of LSA-R.S. 40:967(F). The trial judge sentenced Brown to imprisonment at hard labor for 30 years without benefit of parole, probation, or suspension of sentence, with the sentence to run concurrently with the 30-year sentence on the marijuana conviction. The trial judge also ordered Brown to pay a fine of $250,000 in connection with Count 2.

At the time the crime was committed (September 26, 2000), LSA-R.S. 40:967(F)(l)(c) provided as follows:

Any person who knowingly or intentionally possesses four hundred grams or more of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than thirty years, nor more than sixty years and to pay a fine of not less than two hundred fifty thousand dollars, nor more than six hundred thousand dollars.

LSA-R.S. 40:967(F)(l)(c) was amended by Acts 2001, No. 403 § 4, effective June 15, 2001, to change the term of the sentence from “not less than thirty years, nor more than sixty years” to “not less than fifteen years, nor more than thirty years.” The provision regarding the fine remained the same. The provision of the act only had prospective effect. The statute in effect at the time|1sthe crime was committed is applicable. As such, the trial judge sentenced Brown to the mandatory minimum sentence for possession of over 400 grams of cocaine.

A mandatory minimum sentence is presumed to be constitutional. The burden is on the defendant to rebut the presumption of constitutionality by showing that he is exceptional. He must show he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. It is not the role of the sentencing court to question the wisdom of the legislature in setting mandatory minimum punishments for criminal offenses. Rather, “the sentencing court is only allowed to determine whether the particular offender before it has proven that the mandatory minimum sentence is so excessive in his case that it violates our constitution.”

In State v. Esteen, defendant was convicted of two counts of possession of cocaine over 400 grams and sentenced to 50 years at hard labor on each count. He was convicted of conspiracy to possess cocaine over 400 grams and sentenced to 25 years at hard labor. He was also convicted of attempted possession of cocaine over 400 grams and sentenced to 25 years at hard labor. All sentences were ordered to run consecutively for a total of 150 years. This Court found that the sentences were constitutional, noting that the sentences were within statutory limits, that defendant was a serious drug dealer, and that defendant failed to present any mitigating circumstances to warrant lesser sentences.

In the instant case, we find that the 30-year mandatory minimum sentence of 30 years is not excessive. Brown has failed to show that his sentence is unconstitutionally excessive as it applies to him. Brown has further made no h ¡¡showing that he is exceptional, justifying a downward deviation from the imposition of the mandatory minimum sentence. The record shows that Brown was convicted of possession of 1000 grams of cocaine, much more than the amount of cocaine required by the statute to trigger the 30-year minimum penalty. Additionally, as was stated previously, the trial judge reviewed all the pertinent information, including the PSI which indicates that defendant has a prior record of drug arrests, and that he was convicted of another possession of cocaine offense on August 1, 2001. Based upon the facts of this case, we find that the sentence imposed is not excessive and is suitably tailored to both the offender and the offense.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, and State v. Weiland. The review reveals errors patent in this case.

We note that the trial judge failed to impose the mandatory fíne of “not more than fifty thousand dollars.”

LSA-C.Cr.P. art. 882(A) provides that “[a]n illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.” State v. Williams provides that an appellate court may recognize and correct an illegally lenient sentence under the authority of LSA-R.S. 15:301.1(A) and LSA-C.Cr.P. art. 882 as follows:

In the present case, the authority of the appellate court to recognize sentencing error arises in part from the self-activating provisions of LA.REV.STAT. ANN. § 15:301.1(A) (i.e., the failure to impose sentence without benefit of parole, probation, or suspension of sentence) and under the general provisions of LA. CODE CRIM. PROC. ANN. art. 882 (the sentencing errors other than those which fall under LA.REV.STAT. ANN. § 15:301.1(A)). Under the 12nprovisions of article 882, “[a]n illegal sentence may be corrected at any time by ... an appellate court on review.” ... Accordingly, the appellate court on its own properly noticed the numerous sentencing errors in the punishment that the sentencing court imposed without the need to concern itself with the time limitations of Paragraph B.

More specifically, the Williams court addressed the issue of the authority and appropriateness of correction of an illegally lenient sentence in that the trial court failed to impose a mandatory fine of $2000.00. In Williams neither the sentencing court nor the district attorney sought to amend the sentence.

The appellate court has the authority under LSA-C.Cr.P. art. 882 to recognize and to correct the sentence “at any time.” We note, however, that the language of article 882 is permissive rather than mandatory. In this case we will not correct the illegally lenient sentence.

For the foregoing reasons, the defendant’s conviction and sentences are affirmed.

AFFIRMED.

      . The Exhibit Index indicates that State's Exhibit 13 also contained one digital scale, razor blades, and one Crown Royal bag.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

      . State v. Guccione, 96-1049 (La.App. 5 Cir. 4/29/97), 694 So.2d 1060, 1067, writs denied, 97-2151 (La.3/13/98), 712 So.2d 869 and 01-2825 (La.8/16/02), 822 So.2d 613.

      . State v. Ruffin, 96-226 (La.App. 5 Cir. 8/28/96), 680 So.2d 85, 87.

      . Id.

        . Id.

      . State v. Gentras, 98-1095 (La.App. 5 Cir. 3/30/99), 733 So.2d 113, 117, writ denied, 99-1302 (La. 10/15/99), 748 So.2d 464.

      . State v. Johnson, 404 So.2d 239, 245 (La.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982).

      . State v. Cann, 319 So.2d 396, 397 (La.1975).

      . State v. Williams, 98-1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 69, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118, citing State v. Appacrombie, 616 So.2d 285, 288 (La. App. 2 Cir.1993), writ denied, 623 So.2d 1302 (La.1993).

      . 619 So.2d 790, 794-795 (La.App. 4 Cir. 1993), writ denied, 625 So.2d 1039 (La.),

      . 514 So.2d 602 (La.App. 4 Cir.1987)

        .State v. Ginorio, 619 So.2d at 795. It is noted that, when the search warrant was executed, defendant and others were found outside the residence and other persons were found inside the residence. State v. Walker, 514 So.2d at 604.

      . State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97), 694 So.2d 1052, 1056.

      . LSA-C.Cr.P. art. 841.

      . State v. Thomas, 427 So.2d 428, 433 (La.1982); State v. Harris, 02-397, p. 25 (La.App. 5 Cir. 9/30/02), 829 So.2d 530, 539.

      . LSA-C.Cr.P. art. 881.1.

      . State v. Pendelton, 00-1211 (La.App. 5 Cir. 3/14/01), 783 So.2d 459, 465, writ denied, 01-1242 (La. 1/25/02), 807 So.2d 243.

      . State v. Lobato, 603 So.2d 739, 751 (La.1992).

      . LSA-C.Cr.P. art. 881.4(D); State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1219.

      . State v. Ulmer, 99-1079 (La.App. 5 Cir. 1/25/00), 751 So.2d 1017, 1019.

      . State v. Alexander, 98-993 (La.App. 5 Cir. 3/10/99), 734 So.2d 43, 47, writ denied, 99-2138 (La. 12/10/99), 751 So.2d 250 (citing State v. Washington, 414 So.2d 313, 315 (La.1982)).

      . The PSI indicates that defendant had a juvenile record: that in 1990 he was arrested and charged with possession with intent to distribute cocaine; that he was placed on probation until 1996; that his probation was terminated in 1992 unsuccessfully; that in 1992 he was arrested for simple battery; and that the simple battery charge was dismissed. The PSI further indicates that defendant had an adult record: that he was arrested in 1996 and in 1998 for possession with intent to distribute crack, and that he was arrested on July 7, 2000 for possession of cocaine and sentenced to three years at hard labor on August 1, 2001. No statement was taken from defendant, and no recommendation was made in the PSI.

      .Marijuana is classified in this category. LSA-R.S. 40:964(0(22).

      . 01-3407 (La.6/21/02), 820 So.2d 518.

      . Id. at 522.

      . State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, 522.

      . State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 676.

      . State v. Johnson, supra.

      . 01-879 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, writ denied, 02-1540 (La. 12/13/02), 831 So.2d 983

      . 312 So.2d 337 (La.1975).

      . 556 So.2d 175 (La.App. 5 Cir.1990).

      . LSA-R.S. 40:966(B)(2).

      . 00-1725 (La.l 1/28/01), 800 So.2d 790.

      . Williams, supra, 800 So.2d at 802.


source: Caselaw Access Project

author: l,SOL GOTHARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Davin BLANCHARD.
    No. 03-KA-0612.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Paul D. Connick, Jr., District Attorney, Andrea F. Long, Terry M. Boudreaux, Thomas Block, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Davidson S. Ehle, III, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   l,SOL GOTHARD, Judge.

Defendant, Davin Blanchard, pled guilty to one count of driving while intoxicated (DWI) third offense, a violation of La. R.S. 14:98(D), and one count of first degree vehicular negligent injuring in violation of La. R.S. 14:39.2.

Thereafter, the trial court sentenced defendant to four years of imprisonment at hard labor on Count 1 (DWI-third offense), with all but 30 days of the sentence suspended, and the 30 days were ordered to be served without benefit of parole, probation or suspension of sentence. The trial judge also imposed a fine of $2,000.00. The trial court sentenced defendant to five years of imprisonment at hard labor on Count 2 (first degree vehicular negligent injuring), with the sentence on Count 1 to run consecutively to the sentence on Count 2, and he imposed a $2,000.00 fíne.

The trial court stated that, upon completion of his sentences, defendant was to be admitted to an inpatient facility for substance abuse for not less than four weeks but no more than six weeks to determine the extent of his substance abuse, all in accordance with the treatment provisions found in La. R.S. 14:98(D)(l)(b) and (c). After completion of the treatment, defendant was ordered to serve the remainder of his time under home incarceration during which time he would be on | ¡¡probation for five years. The trial court also awarded restitution in the amount of $8,192.44. On appeal, defendant challenges his sentences as excessive. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

The PSI states that, on August 8, 2001 at approximately 8:12 a.m., on River Road in Jefferson Parish, defendant’s vehicle crossed the lane into on-coming traffic and collided head-on with a vehicle being driven by Christie Foret Poussard, who was eight months pregnant. Testing showed defendant’s blood contained 0.24 percent ethyl alcohol, over twice the legal limit. As a result of the accident, Ms. Poussard had to undergo two emergency surgeries, one for the early delivery of her baby, and another for the laceration to her right ankle.

The PSI reflects that defendant had an extensive criminal record: 26 arrests, including 6 DWIs; simple battery; illegal use of a weapon; public intoxication; public urination; simple criminal damage; battery on a police officer; resisting arrest; disturbing the peace (7 times); theft (3 times); and numerous traffic violations (9). The PSI also indicates that four months after the accident, defendant was arrested for failure to yield/stop and no driver’s license.

Defendant stated in the PSI that he had never married, although he has been involved in a “common-law” relationship for the past 13 years. He had four children, and had maintained employment since he was 13 years old. Defendant said he had a problem with drugs, that he started smoking marijuana during high school, that he started using crack cocaine approximately ten years ago, and that he entered and completed treatment at two 30-day treatment facilities, F. Edward Hebert Hospital when he was 18 years old, and Fountain-bleu Hospital when he was 26 years old. After the instant offense, he entered Foun-tainbleu again, but was |4asked to leave. He claimed he had been “clean” for the past year and a half. The PSI indicates that defendant was 38 years old at the time of the PSI, and that his date of birth was May 9,1964.

The following was adduced at the sentencing hearing in this matter.

Eugenia Patru, a clinical and forensic social worker, testified that alcohol addiction was a mental disorder or condition and she recommended an involuntary inpatient treatment program. She admitted that she had not spoken to defendant, nor had she reviewed any information regarding defendant or the instant case.

At the time of sentencing, defendant was employed as a heavy equipment operator, and had been employed by J.C. Trulen the past 18 months. Mr. Trulen stated that defendant worked for him on a part-time basis; showed up when he said he would; did assigned work appropriately; was extremely good at his profession; supported his family; that his family supported him; and that he had a good relationship with his “wife” [common-law relationship]. Mr. Trulen testified that defendant was his friend; that he was a good guy; that the DWI charge did not change his opinion about him; that he would hire defendant if he were released from jail in the future; and that he was a hard worker. He explained that he never observed defendant drink alcohol or be under the influence of alcohol in the 18 months that defendant worked for him.

Gale Blanchard, defendant’s father, testified that he was a recovering alcoholic, and that he became aware of his son’s situation when a lady at Charity Hospital called to tell him his son had been in a head-on collision. Mr. Blanchard testified that defendant was injured in that collision and sustained a torn spleen, a tear in his intestines, a collapsed lung, and that he was in and out of consciousness. Mr. Blanchard said that while his son was at the hospital for 19 days he suffered from alcohol withdrawal.

|RMr. Blanchard stated that, since the accident, his son was a changed man, and that he was now a loving father to his children. He explained that if the judge gave his son probation, that he would assist him by getting him to and from a treatment facility, that he would help his son financially to get him into an inpatient facility and to pay the victim’s medical bills and restitution.

Defendant testified that he worked for Mr. Trulen, and that he started working for him right after the accident. He explained that he had pled guilty to the DWI in this case and that he had been convicted in two previous DWI cases. Defendant admitted being addicted to alcohol. He testified that he had been drinking since he was 15 years old, that his life was unmanageable, and that after this accident he had “seen the light” and did not have the feeling to drink anymore.

Defendant further testified that he desired rehabilitation, and that he would be willing to go to a locked-down type of facility for an extended period of time. He apologized to the victim, and stated that he was willing to pay her restitution for out-of-pocket expenses. Defendant testified that he would be willing to sign an income assignment in her favor. He explained that he was willing and able to take on any type of employment once released.

On cross-examination, defendant admitted that he continued to drink and drive even after his first two convictions for DWI. He testified that, on August 8, 2001, he had been drinking a lot, and admitted that the victim would suffer for the rest of her life with injuries he had caused. Defendant further testified that, after the accident that he considered his life-altering moment, he drove again without a driver’s license.

In sentencing the defendant, the trial judge stated that the PSI indicated that defendant said he must have blacked out at the time of the accident, but did not know why; that he could not have been that drunk because he made it to his friend’s house without incident; that he did not “buy into that rehabilitation;” and | (¿hat, although he was given opportunities, defendant said that he made some of the meetings, but because of work did not go to all of the meetings. The trial judge pointed out that defendant did not ever express an interest in talking with the expert retained by defense counsel, and that healing would not take place unless defendant decided that it would take place.

The trial judge looked at the evidence to determine whether healing or change had taken place. He noted that, since defendant’s arrest in this case, defendant went back out onto the roadway and operated a vehicle in full violation of the law. The trial judge stated that defendant had continued to exercise poor judgment throughout his life and that, although defendant’s employer said defendant was not drinking any longer, it was not unusual for people who have pending cases to stop drinking until sentencing takes place.

The trial judge further said that, based on defendant’s history, defendant had not learned any lessons. He explained that he had the responsibility to insure that justice was administered. He noted that the pregnant victim was driving on the roadway when defendant, who blacked out, struck her head on. The trial judge stated that, fortunately, the child and the adult victim survived. He said that the indication was that defendant could not be trusted; that he was a danger not only to himself but this community; that defendant had not learned his lesson yet; that he had a propensity to not obey the law and, therefore, he was not amenable to probation because in the past he had “thumbed his nose at it.” The trial judge stated in pertinent part:

The Court finds based upon the record before it the defendant has been convicted now of two additional felonies; that he is not amenable to probation; that he is in need of correctional treatment and a custodial environment; that any lessor [sic] sentence than which I will impose would depreciate the seriousness of the defendant’s conduct; that he created a risk of death or great bodily harm to the victim in this case; that as a result of his and his alone conduct, the victim has been permanently disabled and has been deprived of bringing her child into this world in a manner in which women desire |7and that is through natural birth; that his conduct has resulted in significant permanent injury to the victim in this case.

The trial judge subsequently sentenced defendant on both counts. Defense counsel objected, and subsequently filed a motion for reconsideration of sentence and an appeal.

In his first allegation of error, defendant argues that the trial court erred in imposing the maximum sentence of five years at hard labor on the first degree vehicular negligent injuring conviction. He claims that he is not one of the worst offenders within the criminal justice system, and that he did not have a felony conviction record before the instant case. Defendant contends that the sentence is simply unfair and disproportionate to the crime committed. In allegation of error number six, defendant alleges that the trial court erred in denying his motion to reconsider sentence, based on the same allegations that his sentence is excessive.

The Eighth Amendment of the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is generally considered to be excessive if it is grossly disproportionate to the offense or imposes needless pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Williams, 98-1146 (La.App. 5 Cir. 6/1/99), 738 So.2d 640, 655, writ denied, 99-1984 (La.1/7/00), 752 So.2d 176.

Three factors are considered in reviewing a trial court’s sentencing discretion: 1) the nature of the crime; 2) the nature and background of the offender; and, 3) the sentence imposed for similar crimes by the same court and other courts. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145. The issue on appeal is whether the trial court J^abused its discretion, not whether another sentence might have been more appropriate. Id. at 64.

Prior criminal activity is one of the factors to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions. State v. Washington, 414 So.2d 313, 315 (La.1982); State v. McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212, 1219.

Defendant was convicted of first degree vehicular negligent injuring in violation of La. R.S. 14:39.2 which provides in pertinent part: “Whoever commits the crime of first degree vehicular negligent injuring shall be fined not more than two thousand dollars or imprisoned with or without hard labor for not more than five years, or both.”

In the instant case, the record clearly shows that defendant’s five-year sentence for first degree vehicular negligent injuring was not excessive. The record indicates that defendant has an extensive criminal record, including numerous alcohol and driving related incidents: 26 arrests, including 6 DWI charges; simple battery; illegal use of a weapon; simple criminal damage; battery on a police officer; resisting arrest; disturbing the peace; theft; and many traffic violations. He was arrested approximately four months after the instant offense for failing to yield or stop and driving without a driver’s license.

Defendant admitted to being an alcoholic and to using marijuana since high school and crack cocaine for the past ten years. He admitted he was drinking alcohol on the night of the accident; however, he refused to take responsibility for his actions, saying that he blacked out and could not have been that drunk because he made it to his friend’s house without incident. Although he attended two in-patient treatment facilities, it is clear that they were not beneficial. It appears that defendant has had many opportunities to change his behavior; however, he has chosen not to do so.

| ¡¡Defendant has caused enormous pain and suffering to the victim, Ms. Poussard, a single mother of three, who will be permanently disabled for the rest of her life and walk with a limp. Additionally, Ms. Poussard was forced to have her baby delivered by C-section one month early. As the trial judge correctly stated, defendant is a danger to himself and to the community, he has not yet learned his lesson, and he has a propensity not to obey the law. We find no abuse of discretion by the trial court in the length of defendant’s sentence, and no abuse in denying defendant’s motion for new trial.

In his second allegation of error, defendant argues that the trial court erred in ordering consecutive sentences. He contends that successful methods of treatment for his addiction to alcohol are not available to him in a timely manner because of the consecutive sentence imposed. Defendant claims this is contrary to the legislature’s intent to embrace treatment measures in preference to incarceration.

The consecutive or concurrent nature of a sentence is governed by La.C.Cr.P. art. 883 which 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. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

Since the two convictions arose from a single course of conduct, there is a presumption in favor of concurrent sentences under Article 883. Nonetheless, a trial judge retains discretion to impose consecutive sentences on the basis of factors such as the offender’s past criminal acts, the violent nature of the charged offenses, or the risk that the defendant may pose to the safety of the community. State v. Walker, 00-3200 (La.10/12/01), 799 So.2d 461; State v. Aleman, 01-743 (La.App. 5 Cir. 1/15/02), 809 So.2d 1056, 1070, writ denied, 02-481 (La.3/14/03), 839 So.2d 26. If the trial court elects to impose consecutive sentences Imfor crimes arising from a single course of conduct, it must articulate the reasons it feels the sentence is necessary. State v. Aleman, 809 So.2d at 1070. Although the imposition of consecutive sentences requires particular justification when the crimes arise from a single course of conduct, consecutive sentences are not necessarily excessive. State v. Jackson, 96-661 (La.App. 5 Cir. 4/9/97), 694 So.2d 440, 451, writs denied, 97-1050 (La.10/13/97), 703 So.2d 609 and 97-1255 (La.10/13/97), 703 So.2d 612. The failure to articulate specific reasons for imposing a consecutive sentence also does not require a remand if the record provides an adequate factual basis to support a consecutive sentence. State v. Bradley, 02-1130 (La.App. 5 Cir. 3/11/03), 844 So.2d 115, 118.

In the instant case, the trial court failed to give any reasons justifying the consecutive nature of the sentence. However, the record provides adequate facts to support a consecutive sentence. As was stated in the discussion under his first allegation of error, defendant has an extensive criminal record, including numerous alcohol and driving related offenses. The facts surrounding the offense show that defendant put the lives of Ms. Poussard and her unborn child at risk, and that Ms. Pous-sard was permanently disabled as a result of the accident. The facts also suggest that defendant is a danger to himself and to society, that he has not taken advantage of treatment options available to him previously, and that he has not learned from his mistakes. The need for rehabilitation must be balanced against these other factors. Additionally, treatment options will be available to defendant after he serves his sentence. We find that the trial court did not err in ordering the DWI, third offense, sentence to run consecutively to the first degree vehicular negligent injuring sentence.

In his third allegation of error, defendant argues that the trial court erred in ordering home incarceration for the period of time remaining on his sentence. He claims that, under the ordered sentence, he would have to remain on home 11¶ incarceration for more than two years in violation of La.C.Cr.P. art. 894.2(G). The State responds that the trial court correctly ordered home incarceration in accordance with La.C.Cr.P. art. 894.2(K).

Defendant was convicted of DWI, third offense, a violation of La. R.S. 14:98 and first degree vehicular negligent injuring, a violation of La. R.S. 14:89.2. The trial court sentenced him to four years of imprisonment at hard labor on Count 1 (DWI-third offense), with all but 30 days of the sentence suspended, and the 30 days were ordered to be served without benefit of parole, probation or suspension of sentence and a fine of $2,000.00 was also imposed.

The trial court sentenced defendant to five years of imprisonment at hard labor on Count 2 (first degree vehicular negligent injuring), with the sentence on Count 1 to run consecutively to the sentence on Count 2, and he imposed a $2,000.00 fine.

The trial court stated that, upon completion of his prison service, defendant was to be admitted to an inpatient facility for substance abuse for not less than four weeks but no more than six weeks to determine the extent of his substance abuse, and that an additional period of up to 12 months might be required if the treating physician so indicated. After completion of treatment, defendant was ordered to serve the remainder of his time under home incarceration during which time he would be on probation for five years.

At the time defendant was convicted, La. R.S. 14:98 provided as follows:

D. (l)(a) On a conviction of a third offense, notwithstanding any other provision of law to the contrary and regardless of whether |12the offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years and shall be fined two thousand dollars. Thirty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The remainder of the sentence of imprisonment shall be suspended and the offender shall be required to undergo an evaluation to determine the nature and extent of the offender’s substance abuse disorder.
* * *
(d) Upon successful completion of the inpatient substance abuse treatment required by this Paragraph, the offender shall be sentenced to home incarceration for not less than the period of time remaining on the offender’s suspended sentence as provided in Paragraph (3) of this Subsection.
* * *
(3)(c) Offenders sentenced to home incarceration required under the provisions of this Section shall be subject to all other applicable provisions of Code of Criminal Procedure Article 894.2.

La.C.Cr.P. art. 894.2 provides as follows:

G. The sentence of home incarceration shall be for a period of not more than two years in felony cases and for a period not to exceed six months in misdemeanor cases.
* * *
K. Paragraphs A and G of this Article shall not apply to a defendant who has been convicted of any third or subsequent violation of any state law or local ordinance prohibiting driving while intoxicated committed within five years of the commission of any prior driving while intoxicated violation. Such defendants shall be subject to home incarceration as provided for in R.S. 14:98.

In the instant case, defendant was convicted of DWI, third offense, on October 28, 2002, which was within five years of the commission of two of his prior DWIs: May 18, 2001 and May 29, 1998. We therefore find that the trial court properly imposed home incarceration in accordance with La. C.Cr.P. art. 894.2(K) and La. R.S. 14:98(D)(l)(d). See also, State v. Isidore, 02-1121 (La.App. 5 Cir. 4/29/03), 845 So.2d 1123, 1127.

In his fourth allegation of error, defendant argues that the trial court erred in ordering $8,192.44 in restitution in violation of La.C.Cr.P. art. |13895.1. He contends that the victim should only be awarded restitution for her pre-paid or out-of-pocket expenses which were $58.02 for a wheelchair and $211.14 for foot inserts.

The State responds that there were several statutory vehicles available to the court to accomplish the objective of restitution, including La. R.S. 46:1844 and La. C.Cr.P. arts. 883.2, 895, and 895.1. Alternatively, the State contends that any ambiguity should be resolved by remand to the trial court so the trial judge can re-examine his findings.

At the restitution hearing, Christy Pous-sard testified that she missed 63 days of work as a result of this crime, and that her total lost wages was $6,335.28. Ms. Pous-sard testified that she was forced to rely upon her mother, Carmen Trahan Pous-sard, to take care of her “24/7” for at least two weeks, because she had just had a baby and because of the injuries she sustained in the accident.

She further testified that her mother missed 104 hours of work in order to care for her, and that her mother’s lost wages was $1,290.64.

Ms. Poussard also incurred expenses of $58.02 for a wheelchair, $60.00 for a nurse for one month, and $211.14 for foot inserts.

Ms. Poussard testified that she got a bill for $25,763.50 for her hospital care; her insurance paid these expenses except for $450.00 which was her out-of-pocket expense. For the baby, the total charges were $5,855.70 which the insurance paid except for $430.00 which was her co-payment. Co-payments for follow-up visits were $165.00, and co-payments for physical therapy were $135.00.

Ms. Poussard explained that she was currently working, and lost wages for her court appearances totaled $116.00. Further she incurred expenses for approximately $6.00 in gas for the court appearances.

| uShe further testified that her only out-of-pocket expenses as of the hearing date were $211.14 for the inserts and $60.00 for the wheelchair, but that she was being billed for the remainder of the expenses.

At the hearing, defense counsel argued that La.C.Cr.P. art. 895 only compensates a victim for direct loss of actual cash, and that the victim testified that her out-of-pocket expenses were approximately $60.00 for the wheelchair and $211.14 for the inserts. Defense counsel admitted that Article 895 only dealt with probation, and that defendant was not placed on probation.

At the conclusion of the hearing, the trial judge explained that all the expenses resulted from the conduct of defendant in operating a motor vehicle while intoxicated and in causing injuries to the victim which rendered her permanently disabled. The trial judge said that he could not award restitution to her mother because the statute did not allow the victim of the crime to make a claim on behalf of other parties who were not victims themselves. The trial judge stated that the total restitution was $8,192.44.

The trial judge imposed restitution in accordance with La. R.S. 46:1844 which provides in pertinent part:

(1) If the defendant is found guilty, the court or parole board shall require the defendant to pay restitution to the appropriate party in an amount and manner determined by the court. In addition, the court or parole board may require the defendant to perform community service work in an amount and according to a schedule determined by the court.
(2) One of the conditions of work release shall be a requirement that an inmate pay from his earnings all restitution ordered by the court or the parole board. Even if no restitution has been ordered, the sheriff or director of the program shall have the right to require payment of restitution as a condition of work release.

In State v. Lam, 36,862 (La.App. 2 Cir. 2/11/03), 837 So.2d 749, 758, the court stated:

|1sBefore August 15, 1999, the collection of restitution from a defendant had to be accomplished in the criminal courts as a condition of probation pursuant to either La.C.Cr.P. art. 895.A(7) or La. C.Cr.P. art. 895.1.A, which meant that at least some portion of the sentence itself was suspended. Effective August 15, 1999, La.C.Cr.P. art. 883.2 now allows restitution to be implemented as a part of the sentence itself, without need of probationary conditions.

La.C.Cr.P. art. 883.2 provides as follows:

In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose.

La.C.Cr.P. art. 895 provides as follows:

A. When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following. That the defendant shall:
(7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court[.]

La.C.Cr.P. art. 895.1 provides in pertinent part:

A. (1) When a court places the defendant on probation, it shall, as a condition of probation, order the payment of restitution in cases where the victim or his family has suffered any direct loss of actual cash, any monetary loss pursuant to damage to or loss of property, or medical expense. The court shall order restitution in a reasonable sum not to exceed the actual pecuniary loss to the victim in an amount certain. However, any additional or other damages sought by the victim and available under the law shall be pursued in an action separate from the establishment of the restitution order as a civil money judgment provided for in Subparagraph (2) of this Paragraph. The restitution payment shall be made, in discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.
|1frB. When a court suspends the imposition or the execution of a sentence and places the defendant on probation, it may in its discretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following:
(5) To the victim to compensate him for his loss and inconvenience. Such an amount may be in addition to any amounts ordered to be paid by the defendant under Paragraph A herein.

Courts apparently have wide discretion regarding the imposition of restitution when it is reasonably related to defendant’s rehabilitation. State v. Alternan, 439 So.2d 418 (La.1983). In State v. Schmidt, 558 So.2d 255, 257 (La.App. 5 Cir.1990), this Court noted:

The jurisprudence has established that restitution is not limited to only those actual pecuniary losses sustained by the victim or his family. State v. Elkins, 489 So.2d 232 (La.1986); State v. Alleman, 439 So.2d 418 (La.1983); State v. Olsen, 496 So.2d 1260 (La.App. 1 Cir.1986).

In ordering restitution the trial judge has discretion and his decision will not be disturbed absent an abuse of this discretion. State v. Peters, 611 So.2d 191, 192 (La.App. 5 Cir.1992). In reviewing excessive sentence assignments, the sentence imposed will not be set aside absent a showing of manifest abuse of the trial court’s wide discretion. State v. Lobato, 603 So.2d 739, 751 (La.1992).

We find that the trial judge did not err in ordering restitution of $8,192.44. La. R.S. 46:1844(M) permits the trial judge to award restitution in an amount and manner to be determined by the court. Ms. Poussard testified that, as a result of injuries she sustained in the accident caused by defendant, she was forced to obtain medical treatment and to miss work, among other things. Although she only paid $271.14 of her medical expenses, she explained that she and her employer, Ochsner Hospital, had reached an agreement where she would not have to pay her bills until she received restitution from defendant. Her testimony was not contradicted. Further, defendant cites no jurisprudence which requires that |17expenses must be pre-paid or lost wages cannot be awarded, and no jurisprudence could be located.

We find defendant’s allegation that the trial court erred in imposing restitution of $8,192.44 to be without merit.

In his fifth allegation of error, defendant argues that the trial court erred by failing to consider mitigating factors in violation of La.C.Cr.P. art. 894.1 and in denying his motion to reconsider sentence.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La.C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688, 698 (La.1983). The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. State v. Landos, 419 So.2d 475, 478 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049, 1051 (La.1981). There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33, 111 (La.App.2d Cir.3/1/00), 754 So.2d 392, 394, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

In the instant case, although the trial judge did not specifically state that he considered mitigating factors, hé did state that he considered the provisions of La. C.Cr.P. art. 894.1 along with all of the evidence, the arguments of counsel, the lisvictim impact statement, the testimony of the witnesses at the sentencing hearing, and the PSI, among other things. The trial judge explained at length the reasons for sentencing. Further, the record shows that the trial judge adequately considered the guidelines of the article, and that there was an adequate factual basis for the sentence imposed.

We find no merit to this allegation of error.

We have reviewed the record for errors patent, according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find that the transcript does not reflect that the trial judge adequately advised defendant of the two-year prescriptive period for seeking post-conviction relief pursuant to La. C.Cr.P. art. 930.8. Accordingly, we remand this case and order the trial judge to send written notice to the defendant of the prescriptive period, along with a notice of when the period begins to run, within ten days of the rendering of this opinion, and then to file written proof in the record that the defendant received the notice. See, State v. Esteen, 01-879 (La.App. 5 Cir. 5/15/02), 821 So.2d 60, 78, writ denied, 02-1540 (La.12/13/02), 831 So.2d 983.

CONVICTIONS AND SENTENCES AFFIRMED; CASE REMANDED.

      . In addition to all general conditions of probation, the following special conditions of probation were imposed: court costs; supervision fee; seizure and sale of vehicle defendant was driving at time of offense; installation of a functioning interlock device on any vehicle operated by defendant pursuant to LSA-R.S. 15:306; enrollment in driving improvement classes; and restitution. The trial court also ordered defendant to comply with all of the other conditions of probation as set forth in the probation form for a felony.

      . In addition to all general conditions of probation, the following special conditions of probation were imposed: court costs; seizure and sale of vehicle defendant was driving at time of offense; installation of a functioning interlock device on any vehicle operated by defendant; enrollment in driving improvement classes; and restitution. The trial court also ordered defendant to comply with all of the other conditions of probation as set forth in the probation form for a felony.

      . La. R.S. 14:98 was amended by 2001 La. Acts 1163, with an effective date of August 15, 2001. Although defendant in the instant case committed the offenses on August 8, 2001, before the effective date of the statute, and was convicted on October 28, 2002, after the effective date of the statute, the Louisiana Supreme Court found that the statutory language and legislative purpose of the enactment indicated the applicable sentencing statute to be applied was the one in effect at the time of conviction, rather than at the time of the offense. State v. Mayeux, 01-3195, p. 2 (La.6/21/02), 820 So.2d 526.

      . Note that, in State v. McDonald, 33,356 (La.App. 2 Cir. 6/21/00), 766 So.2d 591, 595, the court stated that the effective date of the article was August 15, 1999. The official Louisiana Acts indicates that the article was effective on January 1, 2000. (Acts 1999, No. 783, § 3; Acts 1999, No. 988, § 1). For purposes of this case, it is irrelevant whether the effective date was August 15, 1999 or January 1, 2000 because defendant committed the instant offenses on August 8, 2001 after both effective dates. Thus, the new statute, LSA-C.Cr.P. art. 883.2, is applicable to him.


author: JjTHOMAS F. DALEY, Judge.

text:
    Debra Lynn KINSINGER v. TACO TICO, INC., Taco Tico of New Orleans, Inc., American Manufacturers Mutual Insurance Company, McGreevy’s Midwest Meat Company, Hartford Insurance Company, Kelly Bean Company and Lumberman’s Mutual Casualty Company.
    No. 03-CA-622.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Al M. Thompson, Jr., Berrigan, Litch-field, Schonekas, Mann, Traína and Thompson, L.L.C., New Orleans, LA, for Defendant/Appellant, Kelly Bean Company.
    Maria B. De Gracia, John J. Erny, III, Metairie, LA, for Defendants/Appellees, Midwest Meat Company and Hartford Insurance Company.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   JjTHOMAS F. DALEY, Judge.

This matter stems from an incident in which Debra Kinsinger allegedly chewed on a stone in refried beans purchased at Taco Tico and injured a tooth. Debra Kinsinger filed suit against Taco Tico and others including Kelly Bean Company (Kelly Bean), McGreevy’s Midwest Meat Company (McGreevy’s), and Hartford Insurance Company (Hartford). McGreevy’s filed a cross-claim against Kelly Bean seeking indemnification. This appeal involves the cross-claim filed by McGreevy’s against Kelly Bean seeking complete indemnification and defense costs. For the reasons that follow we reverse.

FACTS:

Debra Kinsinger, the original plaintiff, settled all claims against all parties with Taco Tico, Kelly Bean, and McGreevy’s each contributing $1,666.66 to the settlement. The only matter unresolved before the trial court was McGreevy’s cross claim for defense costs and attorney fees against Kelly Bean. By mutual agreement, the cross-claim was submitted on the record to the trial court. The trial | ¡¡court held that McGreevy’s and their insurer, Hartford, were entitled to indemnity pursuant to an agreement between Kelly Bean and McGreevy’s. The trial court awarded a judgment in favor of McGreevy’s and against Kelly Bean for the amount McGreevy’s contributed to the settlement plus an additional $14,199.18 in costs, expenses, and attorney’s fees incurred in defending the main demand. Kelly Bean has appealed claiming the trial court erred in awarding attorney’s fees and costs, but has not appealed the portion of the judgment awarding indemnity of $1,666.66.

In her suit, Debra Kinsinger alleged that she broke a tooth on a foreign object in the beans that appeared to be a rock. It is undisputed that McGreevey’s purchased pinto beans from Kelly Bean and that McGreevey’s sold the beans to Taco Tico at the time of this incident. Kelly Bean provided McGreevey’s with a guarantee stating:

that all “Prewashed Pinto Beans” will be free of stones and agrees to indemnify said customer against any claims or damages that result from any such stones.

LAW AND DISCUSSION:

This case involves an interpretation of a contract obligation made by Kelly Bean to McGreevy’s to indemnify McGreevy’s against any claims or damages that result from stones in the beans. The language in an indemnity agreement dictates the obligations of the parties. Meloy v. Conoco, Inc., 504 So.2d 833 (La.1987). Kelly Bean’s guarantee to McGreevy’s makes no mention of defending or indemnifying the customer for attorney’s fees and costs, but simply states that the indemnity is for “any claims or damages that result from any stones.” At issue here is whether the attorney’s fees and costs of counsel for both cross-claimants, McGreevy’s and Hartford, should be considered “claims or damages that result from any stones.”

|4There are no words in the guarantee that specifically require Kelly Bean to defend McGreevy’s or pay McGreevy’s attorneys fees in the event a claim was made against McGreevy’s. This court is required to decide if the trial court committed legal error when it interpreted the indemnification language to include an obligation to pay defense costs.

As a general rule Louisiana law does not permit recovery of attorney’s fees in absence of a statutory provision allowing recovery or a contractual agreement by the parties to pay attorneys fees. Richey v. Moore, 36,785 (La.App. 2 Cir. 3/7/03), 840 So.2d 1265.

On appeal, Kelly Bean argues McGree-vey’s is not entitled to recover attorney’s fees and costs because there is no express mention of duty to defend or duty to pay expenses in the contract of indemnity. McGreevey’s contends the attorney’s fees and costs were incurred as a result of having to defend the main demand and as such are covered by the indemnity agreement.

A number of cases are discussed in both parties’ briefs, but none are directly controlling. In Faucheaux v. Prytania Medical Complex Owners Association, 93-2042 (La.App. 4 Cir. 8/17/94), 642 So.2d 242, the Fourth Circuit found there was no duty on the part of the lessee to defend the lessor in a suit for injuries sustained by a patron. Although the lease agreement required the lessee to “indemnify and save harmless Lessor against and from any loss, costs, damages and expenses arising ... out of any accident to or injury to any person or property whomsoever,” the court found that lessee had no duty to defend because there was no mention of assuming lessor’s defense in the applicable portion of the indemnity agreement. Id. at 244.

In Richey v. Moore, supra the assignors of a lease sought a declaratory judgment seeking attorney fees under the indemnity provision of the lease. The | slower court awarded attorney fees based upon an indemnity and hold harmless agreement. That agreement provided:

Assignee hereby assumes all the obligations and responsibilities of Assignors under the terms of said leases and under the rules, regulation or laws of any government or regulatory agency having jurisdiction and agrees to protect, indemnify and hold Assignors, their agents, employees, heirs and assigns harmless from any and all losses, liabilities, fines, penalties, claims, costs and expenses imposed upon them with respect to the property herein conveyed whether such arose heretofore or whether such arise hereafter.

In reversing the award of attorney’s fees the appellate court noted that prior decisions only allowed recovery of attorney’s fees where the indemnity agreement expressly provided a duty to defend. However, the case is not dispositive of the issue because the Second Circuit found the trial court erred in awarding attorney fees because the suit was for a declaratory judgment seeking interpretation of a lease contract and not contractual indemnification for costs incurred in defending a claim. The court specifically stated that they made no ruling as to the outcome, had this been a suit for indemnity rather than a suit for declaratory judgment, to enforce the terms of a lease agreement.

In Richey v. Moore, supra several Second Circuit decisions are discussed that deal with the issue of obligation to pay for the costs of defense based on contractual language. In Curtis v. Curtis, 28,698 (La.App. 2 Cir. 9/25/96), 680 So.2d 1327, the trial court awarded attorney fees and the Second Circuit affirmed the award of attorney fees based on indemnification language contained in a community partition agreement. The language included an obligation to pay, “any loss ... sustained by virtue of ... failing to pay debts assumed.” Id. p. 1332. The plaintiff in that case was awarded attorney fees because the defendant, her ex-husband, failed to pay tax obligations, which the trial court found he was obligated to pay pursuant to the partition agreement. The trial court found that the wife’s [ (¡attorney fees, which were incurred to enforce the obligation to pay the debt, were recoverable pursuant to the partition agreement language.

The Second Circuit in Curtis relied on South Central Bell Telephone Co. v. Gaines Petroleum Co., Inc., 499 So.2d 521 (La.App. 2d Cir.1986) for the proposition that a hold harmless or indemnity provision can include an obligation for reasonable attorney fees, “even though the obligatory provision does not specifically authorize attorney fees.” Curtis, supra, at p. 1332.

We agree that an indemnification agreement may impose the obligation to pay reasonable attorney fees in some instances when the obligation to pay attorney fees is not specifically identified in the indemnification agreement, but is implied by inference. However, we hold that in order for the indemnitor to be liable for attorney fees the indemnification language must be sufficient to infer the obligation. In South Central Bell, supra at 525, the indemnification language obligated the defendant to “hold harmless and defend.” In Curtis, supra, defendant was obligated to pay for any loss due to his failure to pay debts assumed. The language of both indemnification agreements, in which attorney’s fees were awarded, required an obligation beyond the obligation to pay “claims or damages”, which is the operative language in the Kelly Bean indemnification agreement.

Appellee relies on Barton Protective Services, Inc. v. Coverx Corporation, et al., 615 So.2d 438 (La.App. 4 Cir.1993) and Kelloch v. S & H Subwater Salvage, Inc., et al., 397 F.Supp. 742 (E.D.La.1973). We find these cases inapplicable as they deal with insurance contracts and the duty to defend imposed pursuant to insurance contracts. Appellees also rely on several federal maritime cases. In Signal Oil and Gas Co. v. The Barge W-701, 79-2791 (5th Cir.9/4/81); 654 F.2d 1164, 1177, cert, denied. (1982) 455 U.S. 944, 102 S.Ct. 1440, 71 L.Ed.2d 656, (a federal maritime case) an obligation to pay attorney fees was imposed based on a guarantee that provided that the indemnitor would:

17Indemnify and hold [indemnitee] harmless from and against any and all loss, cost, damage, expense, claims, actions, or liability on account of any and all damage to and loss of or destruction of any property belonging to [indemnitee] ... arising out of or in connection with the installation, repair, and maintenance of ... [a] riser in platform A.

The wording of Signal Oil’s guarantee is much broader than the Kelly Bean guarantee. Although the Federal Fifth Circuit, in Signal Oil, supra, imposed an obligation for attorney fees, it acknowledged in its opinion that the court was not basing its decision to allow attorney’s fees to the indemnitee on any binding authority in its own circuit or in Louisiana jurisprudence. Id. at 1177.

We conclude, based on the limited indemnification language of the Kelly Bean contract, that an obligation to pay attorney fees was not assumed or intended to be included in the indemnity agreement. We rely on the general rule that absent some specific language in the indemnification contract, attorney fees and defense costs are not owed.

For the foregoing reason, the judgment of the trial court is reversed.

REVERSED.


author: | .MARION F. EDWARDS, Judge.

text:
    Roosevelt JOHNSON v. Louis BOYD.
    No. 03-CA-651.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Louis Boyd, LaPlace, LA, pro-se, in proper person.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   | .MARION F. EDWARDS, Judge.

Defendant appeals the trial court’s ruling that granted plaintiffs Petition to Annul Judgment. For the following reasons, the judgment of the trial court is affirmed.

Defendant, Louis Boyd, filed suit in the 29th Judicial District Court for the Parish of St. Charles against plaintiff, Roosevelt Johnson, for damages that Johnson allegedly caused to Boyd’s 1961 B-Model Mack Dump Truck. On November 17, 1998, the trial court dismissed Boyd’s petition, and rendered judgment in favor of Johnson. Thereafter, on January 17, 2001, the trial court reheard the matter and granted Boyd $10,000 in damages.

On August 13, 2002, Johnson filed a Petition To Annul Judgment, asserting that the January 17, 2001 judgment had been obtained by Boyd using fraud or ill practices. Specifically, Johnson asserted that he had never been served with notice of the January 17, 2001 trial date.

| .Trial was held on Johnson’s Petition To Annul on December 16, 2002, after which the court ruled in favor of Johnson. Boyd timely filed the present appeal.

In his first assignment of error, Boyd argues that the trial court erred in not sequestering Johnson’s witness, Monique Cammon.

LSA-C.E. Art. 615 provides, in relevant part:

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. [Emphasis added].

At the conclusion of the trial, the following exchange took place between the trial court and Boyd.

BOYD:

Your Honor, I just want to say one thing ... the plaintiff here did not sequester the witness so she set [sic] there and heard everything Mr. Johnson said. So therefore she can easily concur with what he said.

THE COURT:

Well, it’s interesting that you caught that point after the fact. I was-I mean, why didn’t you catch it before the fact? You should have objected and you didn’t object, so it’s too late to object now. I can’t erase what just happened ...
I’ll note it for the record that Ms. Cammon was sitting in the courtroom during Mr. Johnson’s testimony. However, you did not request a sequestration nor did you object to her sitting there, I didn’t realize she was in the courtroom as a witness ...

It is within the broad discretion of the trial court to determine whether to exempt a witness from its sequestration order, to determine whether a witness who is not placed under a sequestration order or who violates an order of sequestration may testify, and in allowing rebuttal evidence. __[4_ Resolution of sequestration problems is within the sound discretion of the trial court. A review of the record indicates that Boyd did not request that the trial court sequester the witnesses or object to Ms. Cammon’s presence in the courtroom prior to or during Johnson’s testimony. Therefore, the mandatory provision of LSA-C.E. Art. 615 would not have been applicable. Accordingly, we find no abuse of the trial court’s discretion to consider Cammon’s testimony in this case.

In his second assignment of error, Boyd argues that the trial court, in granting plaintiffs Petition To Annul, erred in failing to consider the number of times that he attempted to make service upon Johnson before concluding that service was never made. La. C.C.P. arts. 1231-1235 require that for service of citation on a individual to be valid, it must be made “to the person to be served,” or when a proper officer “leaves the citation or other process at the dwelling house or usual place of abode of the person to be served with a person of suitable age and discretion residing in the domiciliary establishment.” In this case, the record clearly reflects that personal service was not made upon Johnson personally, or at his place of residence, as per the mandates of the civil code of procedure. Boyd further argues by this assignment that the trial court erred in failing to find that Roosevelt had intentionally evaded service. Whether or not the plaintiff in this case intentionally evaded service is a question of fact. A court of appeal may not set aside the findings of the trial court unless they are clearly wrong |fior manifestly erroneous. Under this standard, the issue is whether the trier of facts conclusion was reasonable, not whether it was right or wrong.

At trial, Johnson testified that at the time Boyd’s lawsuit was initiated, he resided at 28 Cathy Street in Norco, Louisiana, where he was served with the original petition. He stated that he was never served with a notice of trial for November 17, 1998, and therefore was not present at that trial. In the middle of 1999, Johnson then moved to 28 Cathy Street in Norco with his girlfriend, son, and two stepchildren. He testified that he moved out of 28 Cathy near the end of 2000, prior to October 10 of that year, when the relationship with his girlfriend ended. Johnson said that he was not at the 28 Cathy address from October 10, 2000 through the end of 2001, even though he owns the house. After October 10, 2000, Johnson lived with his mother at 14 Cathy Street in Norco, Louisiana. Johnson stated that he moved back to the residence at 28 Cathy Street at the end of 2002, when his former girlfriend vacated the premises. He testified that his former girlfriend never informed him of the attempted service of any pleadings or court documents made at the 28 Cathy Street address while he did not reside there.

Plaintiffs former girlfriend, Monique Cammon, also testified at trial. Cammon stated that Johnson had not lived with her from between October of 2000 and April 30, 2001. She said that she specifically did not accept papers from a deputy who attempted to make service on Johnson on May 24, 2001. Cammon stated that she did not tell Johnson about the attempted service that was made.

| fiOther than his own argument, Boyd presented no evidence at trial that Roosevelt had made an effort to avoid service. Based on the foregoing, we see no error in the trial court’s finding that plaintiff had not intentionally avoided service.

Finally, Boyd argues that the trial court erred in granting plaintiffs petition on the basis that no service was made, when the plaintiff failed to inform the trial court of a change of address.

At trial, the court noted:

Well, part of the problem is that, normal circumstances, it’s up to the parties to notify the Court of any change of address ... in order that proper service can be made on them.
However, the problem I have in this case is that November the 17th of 1998, the record reflects, or the minutes reflect from that date, that this matter was apparently heard by Judge Granier and the suit was dismissed.
So I agree with Mr. Miller, it wasn’t through any fraud or ill practice on Mr. Boyd’s part; he was representing himself and wanting to get the matter reset. But, in fact, at that time, it [the case] had already been disposed of ... And given that fact, I’m not going to require Mr. Johnson to continue indefinitely into the future to notify the Court of a change of address on a suit that’s previously been dismissed. [Emphasis added].

Based upon our review of the record, while specifically noting that the case had previously been dismissed, we find no manifest error in the trial court’s ruling that Johnson was not required to update the court on his change of address.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . It is not apparent from the record why the trial court reheard the matter after initially dismissing the suit.

      . State v. Simien, 95-1407, p. 8 (La.App. 3 Cir. 7/24/96), 677 So.2d 1138, 1143.

      . State v. Miller, 95-857, p. 17 (La.App. 3 Cir. 1/31/96), 670 So.2d 420, 431.

      . La. C.C.P. art. 1232

      . La. C.C.P. art. 1234

      . Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); LaSalle v. Benson Car Co., Inc., 00-1459 (La.App. 5 Cir. 1/30/01), 783 So.2d 404, 408.

      . Stobart v. State, Through DOTD, 92-1328 (La.4/12/93), 617 So.2d 880, 882.

      . There was discussion at trial as to whether or not the initial judgment dismissing Boyd’s suit had been rendered upon a Motion For Summary Judgment submitted by Boyd, since neither party had appeared at the November 17, 1998 trial. No conclusion was reached.