author: 11 DREW, J.:

text:
    R.D. HUGHES and Letha M. Hughes, Plaintiffs-Appellants, v. OLIN CORPORATION, et al., Defendants-Appellees.
    No. 37,404-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 3, 2003.
    Rehearing Denied Oct. 23, 2003.

      LeBlanc & Waddell, Baton Rouge, by Brian F. Blackwell, Shreveport, for Appellants.
    Edward John Lilly, New Orleans, for Appellee A.W. Chesterton.
    Deutsch, Kerrigan & Stiles by Lisa C. Winter, James F. d’Entremont, for Appel-lee D.B. Riley.
    Bergstedt & Mount by Thomas M. Bergstedt, F. Paul Leger, Lake Charles, for Appellee Olin Corporation.
    Montgomery, Barnett by Lawrence G. Pugh III, New Orleans, for Appellee J. Graves Insulation Company.
    Kean, Miller by Gary A. Bezet, Scott David Johnson, Baton Rouge, for Appellee Riverwood International Corporation.

      Forman, Perry, by Laura Sanders Brown, for Appellee Owens/Ulinois, Inc.
    Before BROWN, GASKINS and DREW, JJ.
   11 DREW, J.:

In this suit to recover damages sustained as the result of her late husband R.D. Hughes’ occupational exposure to asbestos, Letha Hughes appeals a judgment granting Olin Corporation’s exception of prescription and dismissing this action as to that defendant. We reverse.

FACTS

Mr. Hughes was diagnosed with asbestosis in 1990. In 2000, he began experiencing shortness of breath. A physician in April 2000 believed Mr. Hughes had meso-thelioma after a pathologist examined Mr. Hughes’ pleural fluid and found it to be suspicious for epithelioid malignant neoplasm. Mr. Hughes underwent a thora-coscopy later that month, and the postoperative diagnosis was probable malignancy, mesothelioma or adenocarcinoma. An examination of the biopsied lung matter, pleura and pleural fluid revealed ade-nocarcinoma. The biopsied materials were subsequently examined by a different pathologist the next month, and the diagnosis was malignant epithelial mesothelioma. This diagnosis was conveyed to Mr. Hughes on June 9, 2000.

Mr. and Mrs. Hughes filed suit on May 4, 2001, against numerous corporate defendants including Olin Corporation (“Olin”). The Hugheses complained that due to Mr. Hughes’ occupational exposure to asbestos and asbestos-containing products, he sustained both physical and mental injuries, including but not limited to mesothelioma. Mr. Hughes died on June 8, 2002, at the age of 81.

In its exception of prescription filed on August 20, 2002, Olin contended that prescription commenced no later than April 27, 2000, which 1;>was the date of the thora-coscopy that showed that Mr. Hughes had cancer. On November 8, 2002, the trial court granted Olin’s exception. Mrs. Hughes appeals.

DISCUSSION

The party raising the exception of prescription ordinarily bears the burden of proof at the trial of the peremptory exception. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). However, when it is clear on the face of a plaintiffs petition that prescription has run, the plaintiff bears the burden of showing why the claim has not prescribed. Lima v. Schmidt, 595 So.2d 624 (La.1992).

Delictual actions are subject to a liberative prescription of one year, which commences to run from the date the injury or damage is sustained. La. C.C. art. 3492. Damage is considered to have been sustained, within the meaning of art. 3492, only when it has manifested itself with sufficient certainty to support accrual of a cause of action. Cole v. Celotex Corp., 620 So.2d 1154 (La.1993).

In order to soften the occasional harshness of prescriptive statutes, our courts have recognized a jurisprudential exception to prescription: contra non va-lentem non currit praescriptio, which means that prescription does not ran against a person who could not bring his suit. Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La.1992). This court explained in Foraker v. Board of Sup’rs of Louisiana State University, Agr. and Mechanical College, 31,740 (La.App.2d Cir.4/1/99), 734 So.2d 63, writ denied, 99-1268 (La.6/18/99), 745 So.2d 607:

1¡¡The doctrine of contra non valentem agere nulla currit praescriptio acts as an exception to the general rules of prescription by suspending the running of prescription when the circumstances of the case fall into one of four categories. Under the fourth category, contra non valentem is applied when a cause of action is not known or reasonably knowable by the plaintiff even though his ignorance is not induced by the defendant. This fourth category is commonly known as the discovery rule, providing that prescription commences on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. The plaintiffs ignorance of the facts upon which his cause of action is based cannot be willful, negligent or unreasonable.

Id., 734 So.2d at 66. Citations omitted.

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502. Constructive knowledge sufficient to commence the running of prescription requires more than a mere apprehension that something might be wrong. Cordova v. Hartford Acc. & Indem. Co., 387 So.2d 574 (La.1980). An injured party has constructive notice of his condition when he possesses information sufficient to incite curiosity, excite attention, or put a reasonable person on guard to call for inquiry. Boyd v. B.B.C. Brown Boveri, Inc., 26,889 (La.App.2d Cir.5/10/95), 656 So.2d 683. As stated by our supreme court:

Prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong. Prescription should not be used to force a person who believes he may have been damaged in some way to rush to file suit against all parties who might have caused that damage. On the other hand, a plaintiff will be responsible to seek out those whom he believes may be responsible for a specific injury.
When prescription begins to run depends on the reasonableness of a plaintiffs action or inaction....

\ Jordan v. Employee Transfer Corp., 509 So.2d 420, 423 (La.1987).

Radiologist Dr. Richard Levine took four projections of Mr. Hughes’ chest in July of 1990. No mass was observed in the lungs. He found interstitial fibrosis at the lung bases that was typical of previous asbestos exposure and indicated asbestosis. Mr. Hughes testified that he understood this to mean that he had asbestos in his lungs.

After receiving the asbestosis diagnosis, Mr. Hughes became a plaintiff in three class-action suits alleging exposure to asbestos: James Adams, et al v. Adience Company, et al, filed on August 9, 1990, in Dade County, Florida; Wesley G. Abels, et al v. A.P. Green Refractories Co., et al, filed on January 29, 1991, in Dade County, Florida; and James C. Adams, Jr., et al v. Aireo Welding Products, et al, filed on June 28, 1991, in Orleans Parish. In his settlements in these actions, Mr. Hughes reserved a comeback right in the event that he was later diagnosed with mesothe-lioma. The settlements did not encompass any future claim for mesothelioma.

Mr. Hughes was examined by pulmonol-ogist Dr. Robert Sarama on April 13, 2000. Mr. Hughes complained of having had progressive shortness of breath for a few weeks, and he reported having smoked from the age of 15 to the age of 59. A previous chest x-ray had shown a right pleural effusion. Dr. Sarama’s impression was a pleural effusion which did not appear on physical examination nor by history to be related to congestive heart failure. A thoracentesis was performed on that date. A subsequent chest radiograph showed a minimal residual right pleural effusion.

|ROn April 14, 2000, pathologist Dr. Howard Wright examined the pleural fluid removed during the thoracentesis. He found the fluid to be suspicious for epithelioid malignant neoplasm. His report noted that mesothelioma and large cell carcinoma should be considered in the differential diagnosis.

Dr. Sarama’s notes from April 18, 2000, state that the cytology of the pleural effusion was suspicious for an epithelioid malignant neoplasm, either mesothelioma or large cell carcinoma. Dr. Sarama thought that Mr. Hughes needed to undergo a thoracoscopy to determine if he had meso-thelioma, which Dr. Sarama strongly suspected due to Mr. Hughes’ history of smoking and asbestos exposure. An April 19, 2000, x-ray of Mr. Hughes’ chest revealed a moderate right-sided pleural effusion, etiology indeterminate.

Mr. Hughes presented to surgeon Dr. John Lipka on April 24, 2000, with complaints of shortness of breath for two weeks. Dr. Lipka learned from Mr. Hughes that he had a right-sided pleural effusion that was suspicious for malignancy, that he had not used tobacco for 18 years, and that he had a history of asbestos exposure from his employment as a construction worker, welder, and farmer. Dr. Lipka testified in his deposition that knowing that a patient had been exposed to asbestos is important when a patient has a bloody pleural effusion and had not smoked tobacco in almost 20 years because mesothelioma is associated with asbestos exposure and not tobacco use.

| (¡Biopsies of Mb. Hughes’ pleura, pleural fluid, and the right upper lobe of his lung were taken during a thoracoscopy performed at Morehouse General Hospital on April 27, 2000. The diagnosis in the post-operative report was that there was a probable malignancy, “mesothelioma vs. adenocarcinoma.” Examination of the pleura tissue on April 28, 2000, by pathologist Dr. Kenneth Harrison revealed “malignant neoplasm consistent with metastatic mucin-producing adenocarcinoma.” Examination of the lung tissue by Dr. Harrison revealed “metastatic mucin-pro-ducing adenocarcinoma noted on the visceral pleural surface.” Pathologist Dr. R. Bruce Williams analyzed the pleural fluid on May 1, 2000, and found it to be “positive for malignant cells, most consistent with adenocarcinoma.” The biopsied tissues were then sent to the M.D. Anderson Cancer Center for further evaluation. Dr. Nelson Ordonez’s May 22, 2000, surgical pathology report stated that the pleura biopsy and the right upper lobe biopsy both showed malignant epithelial mesothe-lioma.

Dr. Lipka next saw Mr. Hughes on May 19 and May 25. During the May 25 visit, he talked to Mr. Hughes about his treatment options because at the time there was a question about whether Mr. Hughes’ disease was adenocarcinoma or mesothelio-ma. Dr. Lipka called Mr. Hughes back on June 9 and communicated to him the diagnosis of mesothelioma along with the news that there were no treatment options.

Olin argues on appeal that Mr. Hughes acted unreasonably in delaying the filing of his lawsuit for more than one year after he was told that he probably had lung cancer and that it was suspicious for 17mesothelioma. It is contended that Mr. Hughes had sufficient knowledge of his cause of action when Dr. Sarama first suspected that Mr. Hughes had mesothelioma. However, such a contention misses the point that at the time Mr. Hughes was first told that he probably had lung cancer that was suspected to be mesothelioma, he still did not definitely know whether he had lung cancer, and, if so, whether it was lung cancer associated with asbestos exposure (mesothelioma) or lung cancer of a different etiology such as smoking. He did not have constructive, much less actual, knowledge of his cause of action at that time.

Olin also argues that prescription commenced no later than April 27, 2000, the date the lung mass was diagnosed as cancerous. However, it should be noted that the post-operative note from the April 27 thoracoscopy stated that there was a “probable” malignancy. Moreover, the pathologists who first examined the biopsied materials opined that his disease was ade-nocarcinoma, which is apparently a cancer unrelated to asbestos exposure.

Dr. Lipka, who regarded himself as the closest thing to a primary treating physician for Mr. Hughes, was certain that he talked to Mr. Hughes on April 24 about the relevance of asbestos exposure to some of the diseases that he could have, such as the association between asbestos and mesothelioma. He told Mr. Hughes on that date that he could have adenocarci-noma, mesothelioma, or something benign. Dr. Lipka recalled that Mr. Hughes did not come to him with any preconceived notion that he | shad a certain disease. Dr. Lipka was sure that in order to prepare Mr. Hughes for an unfortunate diagnosis, he told Mr. Hughes about a differential diagnosis and how he could have something benign but because of the bloody effusion that he almost certainly had a malignant disease. The differential diagnosis that he first discussed with Mr. Hughes would have been benign versus malignant, then adenocarcinoma versus mesothelioma or other type of non-small-cell lung cancer.

Dr. Lipka stated that at the time of Mr. Hughes’ May 25 visit, there was no definite pathological diagnosis of his condition. It was not until June 9 that he could tell Mr. Hughes that he had a disease known to be associated with asbestos exposure. All Dr. Lipka did up until that time was to discuss what the possibilities were, which went from benign or malignant, to knowing it was malignant, to having a specific diagnosis of mesothelioma.

Dr. Lipka explained that a diagnosis of adenocarcinoma would not trigger in his mind that a person has a cancer related to asbestos exposure because adenocarcinoma is not pathognomonic for asbestos exposure; by contrast, mesothelioma is pathog-nomonic for asbestos exposure. If Mr. Hughes had had adenocarcinoma, then Dr. Lipka testified that he probably would have told Mr. Hughes that it was related to his smoking.

Dr. Lipka stated that it is well-documented that mesothelioma is associated with asbestos exposure. However, Dr. Lipka described mesothelioma as a “pretty rare” disease. Mr. Hughes was the first patient that Dr. Lipka had seen in several years who came in with a pleural effusion 1fland who actually had mesothelioma. Dr. Lipka added that mesothelioma tends to be a difficult diagnosis to make, and that pathologists often hedge on diagnosing questionable mesothelioma cases until they get a certain indicator. He also explained that when a pathologist thinks something is questionable, they will often send the sample to be examined by an expert pathologist. Pathologists originally pronounced the specimens as adenocarcinoma before they were sent to M.D. Anderson Cancer Center where the mesothelioma was diagnosed.

Dr. Lipka also testified that mesothelio-ma cannot be diagnosed just by looking at it. A pathologist needs to examine it. Mr. Hughes was not diagnosed with lung cancer until April 28, and the diagnosis at that time was adenocarcinoma. Dr. Lipka opined that if a patient presented with Mr. Hughes’ symptoms and a previous diagnosis of asbestos, his suspicion would be pointed toward mesothelioma, but he would still take the normal diagnostic steps.

Dr. Lipka remarked that there was a question from a histologic standpoint about whether Mr. Hughes had mesothelioma even with the symptoms presented by Mr. Hughes in April and May, but the disease’s later progression established that the diagnosis of mesothelioma was correct. A review of Mr. Hughes’ medical history in April and May of 2000 shows that the diagnosis for Mr. Hughes went from probable cancer that was strongly suspected to be mesothelioma, to adenocarcinoma, to a final diagnosis of mesothelioma. Most interestingly, we note that Olin states in footnote 1 in its brief before this court that it even disputes the “alleged |indiagnosis of mesothelioma.” Under such circumstances, it was not unreasonable for Mr. Hughes to delay bringing suit until May 4, 2001, which was within one year from June 9, 2000, the date on which he learned that he had mesothelioma. Accordingly, the trial court was clearly wrong in granting Olin’s exception of prescription.

In support of the exception of prescription, Olin points to Mr. Hughes’ prior litigation history alleging asbestos exposure as evidence that he was aware of his risk of contracting mesothelioma. Among the allegations in the first Florida lawsuit were that:

Each Plaintiff was caused to contract diseases and injuries ... including ... mesothelioma, and other diseases and forms of cancer which have not yet been diagnosed, causing each Plaintiff pain, suffering and mental anguish.
Each Plaintiff has developed severe anxiety, hysteria or phobias, any or all of which have developed into a reasonable and traumatic fear of an increased risk of additional asbestos caused and/or related disease, including, but not limited to other forms of cancer not yet diagnosed to each Plaintiff, resulting from exposure, directly and indirectly, to the asbestos products of the said Defendants.

Similar allegations were made in the Orleans Parish lawsuit. It was additionally alleged in the Orleans Parish action that:

Each plaintiff also suffers from an increased risk of development of additional asbestos caused and/or related diseases, including, but not limited to other forms of cancer not yet diagnosed, resulting from exposure, directly and indirectly, to the asbestos and/or asbestos containing products of the said Defendants.

It is evident from these lawsuits that Mr. Hughes was aware of the possibility that he could develop mesothelioma as a result of his exposure to Inasbestos. Nevertheless, he could not bring suit to recover damages for contracting mesothelioma until he became aware that he actually had the disease. As noted above, that did not happen until June 9, 2000.

Finally, in support of prescription, Olin emphasizes this court’s decisions in Sumerall v. St. Paul Fire & Marine Ins. Co., 366 So.2d 213 (La.App. 2d Cir.1978); and Boyd v. B.B.C. Brown Boveri, Inc., 26,889 (La.App.2d Cir.5/10/95), 656 So.2d 688. In Sumerall, it was alleged that a six-month-old boy suffered permanent brain damage as the result of the failure of a physician to diagnose his meningitis. His parents brought suit within one year of learning in June 1975 that their son had permanent brain damage despite earlier learning in January 1975 that their son was showing signs of neurological impairment and that the brain damage could possibly be permanent. Their child was hospitalized for treatment of hydrocephalus secondary to meningitis and continued to receive treatment for seizure control in the spring of 1975. Concluding that prescription began running prior to the diagnosis of permanent brain damage, this court upheld the trial court’s granting of the exception of prescription.

Sumerall can be distinguished from this case. The plaintiffs in Sumerall knew as early as January 1995 that their son had brain damage allegedly as a result of the misdiagnosis, although they did not know the degree of it until six months later. In contrast, Mr. Hughes did not receive a definitive diagnosis of mesothelioma, a disease related to asbestos exposure, until June 9, 2000.

11 Jn Boyd v. Boveri, supra, Boyd filed suit in March 1988 alleging that he suffered injury when exposed to toxic chemicals while fighting a fire. Boyd was ordered by the trial court to provide medical proof of his exposure to toxic chemicals and of the injuries he sustained. Boyd filed a motion to dismiss his suit in January 1990, and his claim was dismissed with prejudice. In July 1991, Boyd was diagnosed with cancer. Boyd was told by his attorney that he needed a medical expert who could substantiate the connection between the toxic exposure and his cancer. After learning from a physician in December 1992 that his illness and his toxic exposure were connected, Boyd filed suit on April 22, 1993, making essentially the same allegations against essentially the same defendants as in the prior suit. The trial court sustained the exception of prescription, and this court affirmed, finding that Boyd had constructive knowledge of his cause of action no later than when he was diagnosed with cancer in July of 1991.

Boyd can also be distinguished from the facts of this case. Boyd delayed bringing his second suit until he received medical confirmation that there was a connection between his cancer and the toxic exposure. In contrast, Mr. Hughes brought his suit within one year of his learning that he had a lung cancer related to asbestos exposure, as opposed to a cancer that could be traced to his lengthy, prior smoking history or was otherwise not related to asbestos exposure.

I ^CONCLUSION

For the foregoing reasons, we reverse the judgment granting Olin’s exception of prescription. This case is remanded to the trial court for further proceedings in accordance with this opinion.

DECREE

At appellee’s cost, the judgment is REVERSED and this case is REMANDED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, DREW, and MOORE, JJ.

Rehearing denied.

      . We note that Dr. Harrison’s report states, in apparent reference to the specimen and subsequent examination, that it was received on April 27 and completed on April 28.


source: Caselaw Access Project

author: I JIMMIE C. PETERS, Judge. | WOODARD, J.,

license: Public Domain

text:
    STATE of Louisiana v. Albert C. GIRTLEY, Sr.
    No. CR03-0654.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 2003.
    Charles E. Johnson, Jr., Assistant District Attorney, Alexandria, LA, for Appel-lee, State of Louisiana.
    Christopher A. Aberle, Mandeville, LA, for Defendant/Appellant, Albert C. Girtley, Sr.
    Court composed of NED E. DOUCET, JR., Chief Judge, BILLIE COLOMBARO WOODARD, and JIMMIE C. PETERS, Judges.
   I JIMMIE C. PETERS, Judge.

The defendant, Albert C. Girtley, Sr., entered guilty pleas to one count of attempted manslaughter, a violation of La. R.S. 14:31 and La.R.S. 14:27, and one count of possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1, on December 16, 2002. After obtaining a presentence investigation report, the trial court sentenced the defendant to serve twenty years at hard labor on the conviction for attempted manslaughter and to serve fifteen years at hard labor, without the benefit of probation, parole, or suspension of sentence, and to pay a $1,000.00 fine on the conviction for possession of a firearm by a convicted felon. The trial court then ordered that the sentences run consecutively. After the trial court rejected his motion to reconsider his sentence, the defendant filed this appeal.

The factual background is not in dispute. On September 17, 1991, the defendant had been convicted of attempted manslaughter. On April 6, 2002, he shot Michael Dwane Joseph twice with a firearm. In his sole assignment of error, the defendant asserts that the trial court erred in accepting his guilty pleas without adequately explaining the possible maximum incarceration sentences that could be imposed for the convictions. Specifically, the defendant asserts that the trial court erred in not advising him that the sentences could be imposed consecutively.

Louisiana Code of Criminal Procedure Article 556.1 lists the subjects which the trial court must personally address with a defendant before accepting a felony guilty plea. Included within those subjects is the requirement that the trial court inform the defendant of “[t]he nature of the charge to which the plea is offered, the [¡.mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” La.Code Crim.P. art. 556.1(A)(1) (emphasis added).

As charged in this case, the offense of attempted manslaughter has no mandatory minimum penalty and has a maximum possible penalty of twenty years at hard labor. La.R.S. 14:81(B); La.R.S. 14:27(D)(3). An individual convicted of possession of a firearm by a convicted felon is subject to a mandatory minimum penalty of ten years at hard labor and a $1,000.00 fine and a maximum possible penalty of fifteen years at hard labor and a $5,000.00 fine. La.R.S. 95.1(B). Any incarceration sentence under that statute is to be served without benefit of parole, probation, or suspension of sentence. Id.

At the hearing in which the defendant entered his pleas, the trial court specifically advised the defendant of the following:

You understand that to the charge of attempted manslaughter the court could give you no time in jail up to twenty years and to the charge of one count of possession of a firearm by a felon the court could give you ten years up to fifteen years without benefit, or pay a fine of $1,000.00 not to exceed $5,000.00 or both, do you understand that?

The ^defendant responded, “Yes sir.” Thus, the trial court clearly informed the defendant of the mandatory minimum penalty and the maximum possible penalty for each charge.

The defendant argues on appeal that he believed the maximum sentence he could receive was twenty years and that, had he known he could be sentenced to thirty-five years, he would not have entered his guilty pleas. He points out that La.Code Crim.P. art. 883 provides that, generally, “[i]f [a] defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently | ¡.unless the court expressly directs that some or all be served consecutively.”

The defendant directs us to no reported Louisiana cases interpreting La. Code Crim.P. art. 556.1 in which multiple pleas are entered at the same time. In his appellate brief, he cites us to Iowa v. White, 587 N.W.2d 240 (Iowa 1998), as authority for his position. In that case, the defendant argued that his plea was constitutionally invalid because the trial court failed to inform him that the maximum punishment that could be imposed included consecutive sentences. He suggested that this violated Iowa Rule of Criminal Procedure 8 and the United States Constitution. The Iowa Supreme Court agreed, stating that failure to inform the defendant of the “maximum possible punishment” violated Iowa Rule of Criminal Procedure 8 and the requirements of the United States Constitution. Id. at 246.

We also have found no reported Louisiana cases interpreting La.Code Crim.P. art. 556.1 in the context of multiple pleas. However, we note that La.Code Crim.P. art. 556.1 addresses the trial court’s explanation requirements in terms of a “charge,” not “charges.” In this cafe, the trial court informed the defendant of the minimum and maximum penalties for each charge. It logically follows that a defendant, when informed of his exposure on each charge, can mathematically calculate his total exposure if the trial court chooses to impose the sentences consecutively. Had the legislature intended that the trial court specify to a defendant that multiple sentences could be imposed consecutively, it could have so stated. We will not judicially engraft that requirement onto the statute.

Further, while we are not bound by the Iowa Supreme Court’s interpretation of Iowa law, we do not find it in conflict with our interpretation of Louisiana law. Louisiana Code of Criminal Procedure Article 556.1 is written in terms of each | individual charge, and Iowa Rule of Criminal Procedure 8 addresses the “maximum possible punishment” that can be imposed. (Emphasis added.) In the case before us, the trial court informed the defendant of the maximum possible sentence that could be imposed on each count. As previously stated, we find nothing in Louisiana law or jurisprudence which requires a trial court to inform a defendant of the aggregate maximum possible punishment to which he could be exposed when pleading to multiple offenses.

Nothing in the record suggests that the defendant was induced to plead guilty to both counts by unkept promises or misrepresentations on the part of the trial court, the state, or the defendant’s counsel. The record reflects that the defendant specifically acknowledged his pleas were not subject to a sentencing agreement. The more reasonable explanation for the defendant’s inducement to enter into the plea agreement was the state’s reduction of the one count from attempted second degree murder to attempted manslaughter and the state’s agreement not to pursue him as an habitual offender. These agreements reduced his incarceration exposure significantly. Accordingly, we find no merit in the defendant’s assignment of error.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s convictions and sentences.

AFFIRMED.

WOODARD, J., dissents with reasons.

| WOODARD, J.,

dissenting.

It appears that this case presents a res nova issue concerning the legislative intent behind requiring courts to inform a defendant of the “maximum” sentence to which he will be exposed when pleading guilty to more than one charge and the meaning of a “voluntary” and “knowing” guilty plea. It is well settled that the lower court has the responsibility to inform a defendant of the maximum possible sentence he could receive before pleading guilty to any offense(s). However, the statute governing this requirement — La.Code Crim.P. art. 556.1 — does not, explicitly, use terms connoting its application to multiple charges.

Nevertheless, presumably, the underlying goal of its requirement is to ensure that courts are to inform a defendant of the maximum exposure his guilty plea will elicit so that he can give a “knowing” and, thus, “voluntary” guilty plea. Even though, technically, one can argue that the statute requires, only, that a court advise the defendant of the maximum on an individual charge, when he is pleading to more than one, advising him simply of the maximum on each charge without also advising him that those máximums, in effect, could be stacked, greatly expanding Ms incarceration, undermines the legislative intent.

12Notwithstanding, narrowing its focus to La.Code Crim.P. art. 556.1’s word, “charge,” as opposed to “charges,” the majority concludes that the trial court fulfilled its responsibility to make Mr. Girtley fully aware of all the relevant circumstances and likely consequences of Ms guilty plea even though dealing with multiple charges creates a different scenario than that explicitly expressed in the statute and one in which common sense dictates an expanded explanation of the sentencing possibilities to fulfill constitutionally protected due process requirements. Furthermore, with its limited interpretation of La.Code Crim.P. art. 556.1, the majority ignores the pivotal fact that the statute also directs our courts to determine whether a defendant’s plea “is voluntary.”

Essentially, the majority’s approach authorizes lower courts to assume that a defendant will surmise that his sentences could be ordered to run consecutively, even though this resulting omission means providing less than full disclosure. Moreover, reality creates a reasonable expectation for a defendant that he will receive concurrent sentences. This is. because concurrent sentences are the norm for related crimes in light of La.Code Crim.P. art. 883 which provides “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.” (Emphasis added.) Thus, this article and its application create for a defendant an expectation, not of facing the imposition of, either, concurrent or consecutive sentences, but rather, of receiving concurrent sentences unless expressly advised to the contrary.

More importantly, to satisfy a defendant’s constitutionally protected due process rights, courts are not permitted to assume that he knows any of the basic consequences of pleading guilty. Rather, they must explicitly advise him of each and every consequence and they must ascertain that he fully understands each consequence. Indeed, in State v. Montalban, our supreme court recently determined that a guilty plea’s validity is dependent on this satisfaction of due process:

|sThe entry of a guilty plea must be a free and voluntary choice on the defendant’s part. Due process requires that pleas of guilty be voluntary and intelligent relinquishments of known rights. The court must make an independent determination of whether the defendant’s plea is made knowingly and intelligently through a colloquy wherein the defendant is questioned about his decision and the constitutional rights he is waiving.

(Emphasis added.)

Additionally, the United States Supreme Court has consistently held that “[wjaivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” (Emphasis added.)

Nevertheless, in the instant case, the majority concludes that it is enough to inform a defendant of the maximum punishment on each charge, leaving him to surmise that the sentences could be ordered to be served consecutively, thus, increasing his real, possible, maximum exposure of incarceration. Responding to, essentially, the same argument, the Supreme Court of Iowa stated:

The position urged ... for our adoption violates these [Constitutional] principles and requirements. It leaves the defendant informed of statutory words, thus partially informed, but uninformed of the true maximum possible punishment ... coming from consecutive sentences. In essence, defendant is uninformed and unenlightened.

(Emphasis added.)

Furthermore, failing to inform a defendant of the possibility of consecutive sentences violates the spirit of the law. A defendant surely cannot plead intelligently without first understanding the total consequences of his plea. Therefore, “[t]o hold | ¿that the term ‘maximum’ does not include the total possible aggregate sentence is clearly incorrect.”

American Bar Association Standard 14-1.4 explicitly states that the courts should inform the defendant of the possibility of consecutive sentences. Regarding this standard, the Iowa Supreme Court notes that:

[T]he reasoning behind this standard is sound, for this approach will help to assure that the defendant appreciates the significance and consequences of his plea and that once entered the plea will withstand post-sentencing attack. Requiring the trial court to tell the defendant that the sentences may be imposed consecutively and what the total aggregate sentence could be will not significantly lengthen the colloquy or place any undue burden on the court.

Trial courts can easily satisfy La.Code Crim.P. art. 556.1(A)(1) and the U.S. Constitutional due process requirements on this issue with only a few words. Taking this simple step, which is not unduly burdensome and which would take less than one minute is necessary to fully protect a defendant’s rights and provide due process.

In the instant case, the district court did not advise Mr. Girtley that he might have to serve consecutive sentences. Additionally, there is nothing in the record, or from any other source, indicating that his attorney advised him of this possibility. In fact, Mr. Girtley confirms that he believed the greatest sentence he could receive was twenty years and had he known that he could be imprisoned for up to thirty-five years, he would not have plead guilty.

The guilty plea colloquy indicates the trial court advised him of his right to a trial by jury, his right to confront and cross-examine his accusers, and his right against self-incrimination. It also informed him that if he were convicted of another criminal |Boffense in the future, his sentence could be increased because of his decision to enter guilty pleas to the current offenses. Then, the following exchange occurred:

Q You understand that to the charge of attempted manslaughter the court could give you no time in jail up to twenty years and to the charge of one count of possession of a firearm by a felon the court could give you ten years up to fifteen years without benefit, or-pay a fine of $1,000.00 not to exceed $5,000.00 or both, do you understand that?
A Yes sir.

Missing from this exchange, however, are a few extremely important words, explaining the difference between consecutive and concurrent sentences, that he could receive consecutive sentences, and what that would mean for him. The inclusion of this information would have made it possible for the court to make a reasoned assessment of Mr. Girtley’s understanding of the full consequences of his waiver.

The majority’s opinion implies that Mr. Girtley is fortunate to have received any plea agreement whatsoever, therefore, any possible error is harmless because the State could have charged him with crimes that carry a much longer maximum sentence. While this may be true, it is also true that our supreme court’s standard in State v. Guzman instructs that an error is not harmless “if the district court’s flawed compliance ... may reasonably be viewed as having been a material factor affecting [defendant’s] decision to plead guilty.”

Mr. Girtley’s knowledge of the possibility of consecutive sentences surely could have affected his plea negotiations and, ultimately, his decision regarding whether to accept a plea bargain. For example, the prospect of spending thirty-five years in jail, compared with twenty, might have convinced him to exercise his right to a trial to determine his fate which, in turn, might have motivated the State to make a more lenient offer, notwithstanding other possible dropped charges. In other words, sentencing Mr. Girtley, without informing him that he could lose an additional fifteen years of his life, could have affected his decision to plead guilty and his substantial 1 firights-mainly, the extent of his loss of liberty. Thus, the trial court’s omission was not harmless.

We must not forget the magnitude of the rights a defendant loses when he agrees to plead guilty. In Brady v. U.S., the United States Supreme Court characterized a guilty plea as “a grave and solemn act to be accepted only with care and discernment.” “What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.”

      . Louisiana Revised Statutes 14:27 was amended by 2003 La. Acts Nos. 166 and 745. However, these amendments do not affect the outcome of this case.

      . Louisiana Revised Statutes 14:95.1 was amended by 2003 La. Acts No. 674. However, the amendment does not affect the outcome of this case.

      . State v. Walker, 00-3200 (La.10/16/01), 799 So.2d 461; La.Code Crim.P. art. 883.

      . State v. Montalban, 00-2739, p. 4-5 (La.2/26/02), 810 So.2d 1106, 1108-09 (citations omitted).

        . Brady v. U.S., 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

      . Id.

      . Iowa v. White, 587 N.W.2d 240, 246 (Iowa 1998).

      . Id.

      . Id.; (quoting Commonwealth of Pennsylvania v. Persinger, 532 Pa. 317, 615 A.2d 1305 (1992)).

      . See III American Bar Association, Standards for Criminal Justice, std. 14-1.4 (2d ed.1980).

      . Iowa, 587 N.W.2d at 245; (quoting Persinger, 532 Pa. 317, 615 A.2d 1305 (1992)).

      . Id.

      . Id.

      . Id.

      . 99-1753, 99-1528, p. 20 (La.5/16/00), 769 So.2d 1158, 1165; quoting United States v. Johnson, 1 F.3d 296, 302 (5th Cir.1993) (en banc) (expressly overruling United States v. Martirosian, 967 F.2d 1036 (5th Cir.1992)) (citing United States v. Bachynsky, 934 F.2d at 1360).

      . Id.

      . 397 U.S. at 748, 90 S.Ct. 1463.

      . Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: hPEATROSS, J.

text:
    STATE of Louisiana, Appellee, v. Haywood CEASAR, Appellant.
    No. 37,770-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 9, 2003.

      James E. Beal, Jonesboro, for Appellant.
    Walter E. May, Jr., District Attorney, James R. Hatch, Assistant District Attorney, for Appellee.
    Before STEWART and PEATROSS, JJ., and TRAYLOR, J. Pro Tern.
   hPEATROSS, J.

Defendant, Haywood Ceasar, was charged with aggravated battery, in violation of La. R.S. 14:34 and with possession of contraband in a state correctional institution, in violation of La. R.S. 14:402. Defendant was tried by a jury and convicted as charged. The trial court initially imposed on Defendant consecutive sentences of three years for the contraband offense and eight years for the aggravated battery offense. Defendant was later adjudicated to be an habitual offender, since he had three prior felonies on his record, including two felonies for violent crimes. The trial court vacated the sentence for aggravated battery and ordered Defendant to serve a life sentence concurrent with the contraband sentence. Defendant now appeals his convictions and life sentence. For the reasons stated herein, we affirm.

FACTS

In 2002, Defendant was an inmate at the David Wade Correctional Center (“Wade”) in Claiborne Parish. On the morning of May 8, 2002, the inmates were released from their cells for that morning’s work call. As soon as Defendant was released from his cell, he engaged in a fight with inmate John Poullard (“Poullard”), which was witnessed by several other inmates. Both Defendant and Poullard were wearing books and other objects taped to 1 ¡¡their bodies as body armor. Defendant was carrying an ice pick-like weapon, called a “shank.” During the fight, Poullard sustained a puncture wound to the center of his back and two puncture wounds to his upper left bicep.

A trial was held on November 18 and 21, 2002. Several guards testified that Defendant was armed with a shank; however, no one saw Defendant stab Poullard. Lt. Col. Ray Hanson (“Hanson”), unit manager of the maximum security compound at Wade, testified that Wade is a prison, owned and operated by the State of Louisiana. He described the compound as having two working cell blocks and two disciplinary blocks. The working cell block has four tiers, sixteen cells on each tier, and two bunks in each cell.

The incident in question occurred in working cell block N-2. Hanson was not present at the altercation, but he saw the body armor and the weapons that had been collected at the scene. He identified exhibits which were photographs of Defendant wearing his body armor, photographs of the victim showing two puncture wounds to his upper left arm and the wound in the center of his back and pictures of cloth Defendant had worn as protective devices on his wrists and around his neck. Hanson testified that shanks are not permitted in Wade; they are contraband; and inmates may not possess them. After explaining the chain of custody, Hanson identified ¡¡¡items of body armor, a pillowcase, torn sheets and a towel which came from Defendant.

Master Sergeant Dewayne Walker (“Walker”) testified that, on the morning of May 8, 2002, he heard someone yell that there was a fight. He rounded a corner and saw Defendant and Poullard struggling with officers down the tier. They were the only two inmates involved in the fight. While Walker was running to assist, he saw an object in Defendant’s hand that was six to eight inches long and noted that both inmates were acting aggressively to each other. Defendant dropped his shank after being ordered to do so; and Sergeant Bobby Tolar (“Tolar”), who had also arrived on the scene, picked it up and gave it to Walker. Sergeant Carl Rugley (“Rug-ley”), another officer arriving on the scene, picked up a second shank, which had been dropped by Poullard.

Walker identified the shank that Defendant had in his possession. It was a metal rod, approximately eight inches long, sharpened to a point on one end with a sheet or blanket material wrapped around the other end for use as a handle. Walker testified that, as a whole, the object was “very much favoring an ice pick.” The shank taken from Poullard was identified by Walker as an ear piece from eye glasses with a sharp object stuck in the end of it and sharpened to a point. On cross examination, Walker read from his report that he had seen the shank in Defendant’s hand as he ran to break up the fight and that the two shanks had been recovered.

Sergeant Jerry Anderson (“Anderson”) testified that, when Defendant and Poul-lard came out of their cells on the morning of this incident, they |4began fighting immediately. He testified that both inmates were “tussling, wrestling, swinging at each other.” Anderson attempted to break up the fracas by grabbing Defendant and yelling for help.

Sergeants Anderson and Wallace grabbed Defendant and took him to a different tier to restrain him. As Defendant dropped to his knees, Anderson saw a weapon like an ice pick in Defendant’s right hand. Defendant complied with Anderson’s order to drop the weapon and Tolar picked up the weapon. Anderson identified the weapon at trial as the one Defendant had possessed. At trial, Defendant, acting pro se, “questioned” Anderson about the fight. On cross examination, Anderson said he did not observe Defendant strike Poullard with a weapon. Defendant asked:

If I had a weapon and inflicted bodily harm on John Poullard, why is it that no officers said they actually saw me stabbing the inmate with a weapon or they actually saw him stabbing me with a weapon. If they say they saw a fight, I mean, and they apprehended the situation, they should’ve saw (sic) a weapon.

The prosecutor objected to this question stating:

Your Honor, I object to this line of questioning. He’ll have a chance to testify and he’ll have a chance to argue.

The court overruled the objection and allowed Defendant to complete the question. There was no contemporaneous objection to the prosecutor’s | ¡remark. On redirect, Anderson said he did observe Defendant striking Poullard and that Defendant had a shank in his hand.

Sergeant Jeremy Wallace (“Wallace”) testified that he looked up when he heard someone yell “fight” and saw Poullard on the ground with Defendant standing over him. Wallace did not see the shank until Sgt. Anderson had it in his hand.

Tolar testified that he did not arrive at the altercation until Wallace and Anderson had restrained Defendant. As the guards put Defendant down on the floor, Tolar saw a shank in Defendant’s hand. Anderson and Tolar yelled for Defendant to put it down and he complied. Tolar grabbed the shank and he identified the shank at trial as the one Defendant had in his hand.

Rugley testified that, on the day in question, he heard yelling and ran into the building to help. When he got to the scene, both inmates had been restrained. Rugley saw a shank on the floor near Defendant.

Nurse Pam Austin, an employee of the Wade medical department, testified that she examined Poullard at 8:00 a.m. on the date of this incident. He had a puncture wound halfway down the middle of his back and two wounds to his left bicep area. Nurse Supervisor Danny Davidson testified that he examined Defendant after the fight. He testified that Defendant was “unscathed,” and had “no abrasion, laceration, ■ trauma, bruising, nothing whatsoever.” The victim did not testify at trial.

As previously stated, Defendant was charged with aggravated battery and with possession of contraband in a state correctional institution. He | fiwas convicted by a jury as charged. Defendant now appeals, raising the following assignments of error (verbatim):

1. A life sentence is excessive for this offender in this case;
2. The evidence was not sufficient to convict the defendant of the charge of Aggravated Battery;
3. The Court erred in failing to order a mistrial after the District Attorney improperly commented on defendant’s failure to testify; and,
4. Defendant’s conviction of possession of contraband in a State Penitentiary constituted double jeopardy.

DISCUSSION

Although the record does not reflect that Defendant filed a motion for post-verdict judgment of acquittal pursuant to La.C.Cr.P. art. 821, this court will consider sufficiency arguments in the absence of such a motion. State v. Green, 28,994 (La.App.2d Cir.2/26/97), 691 So.2d 1273.

Sufficiency of the Evidence

When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. The principal criterion of a Jackson v. Virginia, supra, Preview is rationality. State v. Mussall, 523 So.2d 1305 (La.1988). Due process demands that a criminal conviction cannot constitutionally stand if it is based on a record from which no rational trier of fact could find guilt beyond a reasonable doubt. Id.

Defendant argues that no officer testified to having seen him stab the victim. He insists that it is reasonable to assume the victim self-inflicted his wounds or that someone else in the crowd of bystanders stabbed the victim. Defendant contends that the prosecution failed to exclude every reasonable hypothesis of his innocence and that the circumstantial evidence was insufficient to convict him of the charge of aggravated battery. We do not agree.

The clear weight of the evidence shows that Defendant and Poullard rushed each other immediately after coming out of their cells and that both inmates were carrying weapons. Based on the testimony at trial, Defendant’s arguments are inconsistent with a reasonable hypothesis that someone other than Defendant stabbed Poullard. None of the officers saw any other inmate involved in the altercation. Notably, none of the witnesses testified that they saw anyone other than Defendant strike the victim, Anderson was present throughout the fight. He saw Defendant and Poullard fighting and he broke it up. No other inmate was involved and no other inmate was wearing body armor or protective devices. Thus, there is no evidentiary basis to support a reasonable hypothesis that one of the other 1 «bystanders actually committed the aggravated battery on Poullard. Every reasonable hypothesis of Defendant’s innocence has been excluded. Viewed in a light most favorable to the prosecution, we find that the testimony and evidence were legally sufficient to conclude beyond a reasonable doubt that Defendant committed an aggravated battery upon Poullard by stabbing him with the shank. Defendant’s assignment of error has no merit.

Double Jeopardy

Defendant argues that, because aggravated battery requires use of a dangerous weapon, the possession of that weapon is an element of the offense and an attempt to convict him of both aggravated battery and possession of contraband in a state correctional institution places him in double jeopardy. Louisiana uses both the “Blockburger test” and the “same evidence test” in determining whether double jeopardy exists. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court held that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Louisiana also uses the broader “same evidence” test which dictates that:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one.

State v. Steele, 387 So.2d 1175 (La.1980); State v. Robertson, 511 So.2d 1237 (La.App. 2d Cir.1987), writ denied, 516 So.2d 366 (La.1988). This |3test depends on the proof necessary for a conviction, not the evidence that is actually presented at trial. State v. Knowles, 392 So.2d 651 (La.1980), on subsequent appeal, 395 So.2d 678 (La.1981).

In State v. Dunn, 454 So.2d 1301 (La.App. 3d Cir.1984), writ denied, 458 So.2d 487 (La.1984), the court held that convictions for aggravated battery and possession of a firearm by a convicted felon, arising out of the same conduct, did not violate the prohibition against double jeopardy because each offense required proof of elements not included in the elements of the other offense. The same reasoning used to reach the conclusion in State v. Dunn, supra, applies in the case sub judice. Both Defendant’s offenses of aggravated battery and possession of contraband in a state correctional institution require proof of elements not included in elements of the other offense and the same evidence is not used to support a conviction of both crimes.

Defendant’s argument ignores the fact that possession of contraband in a state correctional institution requires proof that the accused was in a correctional institution, an additional fact which does not need to be proven to convict Defendant of aggravated battery. Moreover, in order to prove that aggravated battery has been committed, the State must prove that Defendant used the weapon to commit a battery against the victim, an additional fact which does not need to be proven to convict Defendant of possession of contraband in a state correctional institution. Prosecution of both aggravated battery and possession of contraband in a state correctional institution do not rest on proof of the same facts or use of the same evidence |into support the conviction of the other crime. Defendant’s assignment of error has no merit.

Prosecutorial Comment

Defendant contends that the prosecutor’s remark at trial was an impermissible reference to Defendant’s intention not to testify and the court should have ordered a mistrial, even in the absence of his objection or motion for mistrial. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. La.C.Cr.P. art. 841; State v. Bosley, supra; State v. Hamilton, 594 So.2d 1376 (La.App. 2d Cir.1992); State v. Brown, 552 So.2d 612 (La.App. 2d Cir.1989), writ denied, 558 So.2d 581 (La.1990).

The jurisprudence in Louisiana specifically, holds that, in the absence of a defense objection, the defense may not raise on appeal the question of whether the prosecutor impermissibly commented on the defendant’s failure to testify. State v. Wesley, 33,402 (La.App.2d Cir.5/10/00), 759 So.2d 286, writ denied, 00-1702 (La.4/12/01), 788 So.2d 1201. Due to the lack of a contemporaneous objection, this issue is not properly before this court. Defendant’s assignment of error has no merit.

Defendant’s Sentence

Defendant argues that his life sentence is grossly disproportionate to the considerable mitigating evidence cited by the court when the original eight-year sentence was imposed. At the time of the original sentence, the trial judge noted that both participants in the affray wore body armor, as if prepared for a confrontation, and that a shank was found near the victim, 1 nwhich implied that the victim may have provoked the Defendant’s actions. Even if there was provocation, however, we note that Defendant had ample time to prepare body armor and ample time to cool off and avoid the confrontation entirely-

In this case, La. R.S. 15:529.1(A)(l)(c)(ii) mandated a life sentence without benefits for Defendant. He is now a fourth-felony offender and two of his prior felony convictions (manslaughter and second degree battery) are defined as crimes of violence. See La. R.S. 14:2(13)(d) and (f). As a panel of this court held in State v. Ponsell, 33,543 (La. App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490:

Although, in State v. Dorthey, [623 So.2d 1276 (La.1993)] the Louisiana Supreme Court stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. (Citations omitted.)

Since the habitual offender law in its entirety is constitutional, the minimum sentences it imposes upon a Defendant with multiple offenses are also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. The mandatory life sentences the habitual offender law requires are presumptively constitutional and should be accorded great deference by the judiciary. State v. Wade, 36,295 (La.App.2d Cir. 10/23/02), 832 So.2d 977, writ denied, 02-2875 (La.4/4/03), 840 So.2d 1213.

The courts in State v. Johnson, supra, and State v. Wade, supra, also held that the burden was on the Defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, the Defendant must “clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this Defendant 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.” State v. Johnson, supra; State v. Wade, supra.

Defendant had prior convictions for manslaughter (bargained down from second degree murder), second degree battery (bargained down from aggravated battery) and simple escape. He has not made any showing that he is exceptional because of unusual circumstances that would show he is a victim of the legislature’s assignment of sentences meaningfully tailored to his culpability, the seriousness of the offense and the circumstances of the case. Rather, the evidence shows that Defendant has a history of violence. Defendant has killed before and the evidence shows that he was fully prepared in this instance to kill again. The prior conviction for second degree battery arose while Defendant was in prison. He is exactly the type of person for whom a life sentence is intended and appropriate. Defendant’s assignment of error has no merit.

| ^CONCLUSION

For the foregoing reasons, the convictions and life sentence of Defendant, Haywood Ceasar, are affirmed.

AFFIRMED.

      . La. R.S. 14:34 provides:
      Aggravated battery is a battery with a dangerous weapon.

      . La. R.S. 14:402(B) provides:
      No person shall possess contraband upon the grounds of any state correctional institution.
      Further, La. R.S. 14:402(D)(2) provides in pertinent part that contraband means:
      A dangerous weapon, or other instrumentality customarily used or intended for probable use as a dangerous weapon....

      . A weapon, in this case an ice pick-like weapon, is often referred to in general terms as a “shank” in the prison subculture and the weapon in this case is called a shank by the parties involved.

      . The trial judge allowed Defendant to represent himself pro se at the trial after he informed the trial judge that he wished to exercise his constitutional and statutory right to represent himself. The trial judge only approved Defendant’s request after explaining to Defendant his options relating to representation and after inquiring into whether Defendant understood the dangers and disadvantages of representing himself and the particular legal issues that might apply to his case.

      . La. R.S. 15:438 provides:
      The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.

      . La. R.S. 15:529.l(A)(l)(c)(ii) provides, in pertinent part:
      If the fourth felony and two prior felonies are felonies defined as a crime of violence under R.S. 14:2(13) ..., the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.


author: b DREW, J.

text:
    STATE of Louisiana, Appellee, v. Jonathon KING, Appellant.
    No. 37,615-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 9, 2003.

      Louisiana Appellate Project by James E. Beal, Counsel for for Appellant.
    Paul J. Carmouche, District Attorney, J. Thomas Butler, Assistant District Attorney, and Jason W. Waltman, Assistant District Attorney, for Appellee.
    Before CARAWAY, DREW and TRAYLOR (Pro Tempore), JJ.
   b DREW, J.

A jury found Jonathon King guilty as charged on one count of armed robbery, a violation of La. R.S. 14:64 punishable by imprisonment for not less than 10 years nor more than 99 years without benefits. The trial court sentenced defendant to serve the statutory minimum of 10 years without benefits, and considered the motion for reconsideration to be waived because the sentence imposed was the statutory minimum. Defendant argues his sentence is excessive. We affirm.

The matters of record show that on June 2, 2000, defendant and his half-brother, James Stevens, who was armed, entered a shoe store in Shreveport. Stevens demanded money from an employee and took his wallet at gunpoint. Defendant ordered another clerk to open the cash register and, when she was unable to do so, he acted as a lookout. Stevens made the first clerk open the safe, from which the robbers obtained over $800. The police were notified of the robbery while it was in progress and arrived as the perpetrators fled the scene. The police captured Stevens nearby. He confessed to the robbery and named defendant as his accomplice.

On appeal, defendant argues that his sentence is excessive and unfair because his co-defendant received a lesser sentence. We note that the defendant did not file any pleadings seeking to invoke the holdings of State v. Dorthey, 623 So.2d 1276 (La.1993), relative to any alleged miscarriage of justice in his sentencing.

There is no proportionality guarantee in non-capital cases unless the reviewing court finds the sentence is grossly disproportionate to the circumstances of the offense. See, Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), in which the Court ruled “the Eighth Amendment contains no proportionality guarantee.” Accord, State v. Delaughter, 29,974 (La.App.2d Cir. 12/10/97), 703 So.2d 1364, writ denied, 98-0018 (La.5/1/98), 805 So.2d 201.

Whether a sentence is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, supra. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse .of that discretion, we may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

Prior to imposing sentence, the court noted that the co-defendant’s case had been disposed of by a guilty plea to a reduced charge of simple robbery with a sentence of seven years. However, this defendant chose to go to trial and was found guilty of armed robbery. The court stated it could |snot impose a lesser sentence due to the armed robbery statute’s mandatory minimum.

On this record, we do not find constitutional error in this mandatory minimum 10-year sentence. Defendant has not shown that he is exceptional or that because of unusual circumstances, 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.

The record shows defendant was 26 years old at the time of trial. He had been a U.S. Marine for over four years, served as a military policeman, and received an honorable discharge. He had attended several semesters of college and had taken courses in criminal justice and social work. Defendant’s background renders it incomprehensible and inexcusable that he participated in an armed robbery.

The sentence imposed is lawful. Although defendant contends the sentence imposed on him is disproportionately harsh, the reverse is true: his co-defendant obtained a significant benefit from being allowed to- plead guilty to an offense which did not adequately describe his criminal conduct. This defendant’s sentence is neither grossly disproportionate to the severity |4of the offense of conviction nor is it shocking to our sense of justice. Therefore, it is not constitutionally excessive.

We have examined the record for error patent and found none. The conviction and sentence are AFFIRMED.

AFFIRMED.

      . Actually, this was error, in that a defendant has a right to file a motion for reconsideration even when a minimum sentence is imposed, should he desire to contend the minimum sentence is constitutionally excessive. See, e.g., State v. Dorthey, 623 So.2d 1276 (La.1993).

      . This is incorrect, as downward departures from the statutory minimum are justifiable in unusual circumstances. See, State v. Dorthey, supra; State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339; and State v. O'Neal, 34,814 (La.App.2d Cir.2001), 795 So.2d 1292. However, a lesser sentence than the minimum is clearly not warranted under the sad facts of this violent crime. Defendant received 1/10 of the maximum sanction.

      . Had the state simply chosen to bill this defendant under La. R.S. 14:64 and La. R.S. 14:64.3, the statutory minimum would have been 15 years, a firearm having been utilized in the commission of the crime.


author: PITTMAN, Chief Justice, GRAVES, Justice,

text:
    GANNETT RIVER STATES PUBLISHING CORPORATION d/b/a The Clarion-Ledger and the City Council of Jackson, Mississippi v. JACKSON ADVOCATE and Charles Tisdale.
    No. 2002-CA-00405-SCT.
    Supreme Court of Mississippi.
    July 31, 2003.
    Rehearing Denied Oct. 23, 2003.
    Luther T. Munford, Mark David Fijman, Christopher Royce Shaw, Sharon Diane Gipson, Terry Wallace, Jackson, attorneys for appellants.
    Imhotep Alkebu-Lan, Chokwe Lumum-ba, Jackson, attorneys for appellees.
   PITTMAN, Chief Justice,

for the Court.

¶ 1. As the lowest bidder, Gannett Rivers States Publishing Corp. d/b/a The Clarionr-Ledger was awarded by the Jackson City Council the contract to publish legal notices for 2002. On appeal, the Hinds County Circuit Court granted a temporary restraining order in favor of The Jackson Advocate (and its publisher Charles Tisdale), the second lowest bidder. Following a hearing, the circuit court ruled that The Clarionr-Ledger submitted an unqualified bid; and, therefore, The Jackson Advocate was the lowest qualified bidder.

¶2. This Court granted The Clarion-Ledger’s Motion for Stay of Judgment Pending Appeal. We reverse and render on the sole issue presented on appeal.

FACTS

¶ 3. On December 6, 2001, the City of Jackson published notice that it was taking bids for the 2002 contract to publish legal notices. The city received three bids: (1) The Clarion-Ledger/Focus section (NE, NW & S), (2) The Jackson Advocate, and (3) The Mississippi Link. The “Focus” is a section included in Thursday edition of The Clarion-Ledger sold in Jackson.

¶ 4. The city council considered bids during two meetings. On December 27, 2001, Councilmen Stokes argued that the “Focus” section of The Clarion-Ledger was a free insert, which could not qualify under the statute governing legal notices. See Miss.Code Ann. § 13-3-31 (Rev.2002). Responding, representatives for The Clarion-Ledger noted that one cannot subscribe to the “Focus.” After a two-to-two vote, with three members abstaining, the council decided to consider the matter again during its January 2, 2002, meeting.

¶ 5. The council again considered the issue of whether the “Focus” was a free insert on January 2. At this meeting, the advertising director for The Clarion-Ledger director, Tom Privett, spoke and submitted an affidavit attesting that the only way to get the “Focus” was to buy The Clarion-Ledger and that every copy of The Clarionr-Ledger sold in Jackson contains a “Focus” section. He equated the “Focus” section to other sections such as the Sports or Business. He submitted a copy of the “Focus” and noted that it carries The Clarion-Ledger’s masthead on its front page. Based on this, the city council awarded the contract to The Clarion-Ledger/Focus.

¶ 6. On January 14, 2002, The Jackson Advocate filed a bill of exceptions and a motion for a temporary restraining order enjoining the city from publishing legal advertisements in any newspaper other than The Jackson Advocate until after its appeal. The motion was granted, and the circuit court reviewed the matter pursuant to Miss.Code Ann. § 11-51-75 (Rev.2002).

¶ 7. At the February 6, 2002, hearing, the circuit court reviewed the council’s decision and, despite objections that such review be limited to the record, the court heard additional testimony. Ultimately, the circuit court held that the “Focus” was not a section of The Clarionr-Ledger. Specifically, the order cited the following reasons:

1. the “Focus” is not identified by a letter (e.g. B-“Metro and State”; C-“Business);
2. the “Focus” is contained in all Thursday newspapers (true sections are contained in each and every newspaper delivered or sold); and
3. the lack of consistency (there are three different versions of the “Focus”-NE, NW and S).

Accordingly, the court required that the “Focus” independently satisfy the requirements of Miss.Code Ann. § 13-3-31. Finding the “Focus” an unqualified bidder, the court held that The Jackson Advocate was the lowest qualified bidder.

STANDARD OF REVIEW

¶ 8. Circuit court review here is restricted. The “[decisions or orders of municipality are to be upheld unless the order was unsupported by substantial evidence; [ ]arbitrary or capricious; [ ]beyond the municipality’s scope or powers; or violated the constitutional or statutory rights of the aggrieved party.” Falco Lime, Inc. v. Mayor & Aldermen of City of Vicksburg, 836 So.2d 711, 721 (Miss.2002); Fondren North Renaissance v. Mayor & City Council of City of Jackson, 749 So.2d 974, 979-80 (Miss.1999) (“A decision by a local governing board is presumed valid, and the burden is upon the person seeking to set it aside.... ”). Likewise, so long as the governing body’s decision is “fairly debatable,” we are without authority to supplant the municipality’s legislative action. McWaters v. City of Biloxi 591 So.2d 824, 827 (Miss.1991); Mathis v. City of Greenville, 724 So.2d 1109, 1112 (Miss.Ct.App.1998). See also Barnes v. Bd. of Supervisors DeSoto County, 553 So.2d 508, 510-11 (Miss.1989) (noting the distinctive treatment accorded to legislative acts as opposed to adjudicative acts).

ANALYSIS

¶ 9. “[This] Court does not pass upon the wisdom of the action of members of the mayor and city council in performing their discretionary, legislative acts.” Foivler v. City of Hattiesburg, 196 So.2d 358, 362 (Miss.1967). We reverse the decision of the circuit court for the following two reasons: First, in reviewing the city council’s decision, the circuit court abused its discretion. Second, the circuit court incorrectly concluded that the “Focus” was not a section of The Clarion-Ledger and thus incorrectly required that it independently satisfy the publication requirements as set forth in Miss.Code Ann. § 13-3-31.

¶ 10. According to Miss.Code Ann. § 11-51-75, any person aggrieved by the decision of municipal authorities may appeal to the circuit court. As noted, judicial review is limited. In the instant case, the issue was fairly debatable and, in fact, was debated during two meetings. Representatives from both The Clarion-Ledger and The Jackson Advocate were present at the meetings. Significant is the affidavit submitted by Thomas Privett, which addresses the issue of whether the “Focus” is a section of The Clarion-Ledger.

¶ 11. Privett presented several justifications for concluding that the “Focus” is a section, including: (1) it is not available free; (2) it is no different than other sections of the paper such as the “Sports” or “Classifieds”; (3) it may only be acquired through the purchase of The Clarion-Ledger; and (4) each Thursday paper sold in Jackson contains a “Focus” section, either NE, NW or South, all of which will publish notices. Further, he noted that the NE, NW or South versions of the “Focus” were three of five zoned sections published on Thursday and that the other two, The Madison County Herald and The Clinton News, may be independently purchased. Unlike the “Focus”, The Madison County Herald and The Clinton News papers have separate rate cards and ad contracts.

¶ 12. The record reflects that council members had several questions concerning this issue. Satisfied by the responses, and after being advised by its legal department, the council found The Clarion-Ledger to be the lowest qualified bidder. Accordingly, we find no basis for the circuit court to reverse the city council.

¶ 18. In addition to its abuse of discretion, the circuit court misapplied the law. The decision of the circuit court hinged on its determination that the “Focus” was not part of The Clarion-Ledger. Distinguishing the “Focus” from the Clar-iortr-Ledger, the circuit court required that the “Focus” independently satisfy § 13-3-31, which it cannot do.

¶ 14. Section 13-3-31 states in relevant part:

(1) Whenever it is required by law that any summons, order, citation, advertisement or other legal notice shall be published in a newspaper in this state, it shall mean, in addition to any other requirements imposed by law, publication in some newspaper which:
(a)Maintains a general circulation predominantly to bona fide paying subscribers within the political subdivision within which publication of such legal notice is required. The term “general circulation” means numerically substantial, geographically widespread, demographically diversified circulation to bona fide paying subscribers. In no event shall the term “general circulation” be interpreted to require that legal notices be published in a newspaper having the greatest circulation. The term “bona fide paying subscribers” means persons who have subscribed at a subscription rate which is not nominal, whether by mail subscriptions, purchases through dealers and carriers, street vendors and counter sellers, or any combination thereof, but shall not include free circulation, sales at a token or nominal subscription price and sales in bulk for purposes other than for resale for individual subscribers.
(b) Maintains a legitimate list of its bona fide paying subscribers by the following categories where applicable:
(i) Mail subscribers;
(ii) Dealers and carriers; and
(in) Street vendors and counter
sellers.
(c) Is not published primarily for advertising purposes and has not contained more than seventy-five percent (75%) advertising in more than one-half (%) of its issues during the period of twelve (12) months next prior to the first publication of any legal notice therein, excluding separate advertising supplements inserted into but separately identifiable from any regular issue or issues.
(d) Has been established and published continuously for at least twelve (12) months next prior to the first publication of such matter to be published, is regularly issued at stated intervals no less frequently than once a week, bears a date of issue, and is numbered consecutively; provided, however, that publication on legal holidays of this state or of the United States and on Saturdays and Sundays shall not be required, and failure to publish not more than two (2) regular issues in any calendar year shall not disqualify a paper otherwise qualified.
(e) Is issued from a known office of publication, which shall be the principal public business office of the newspaper and need not be the place at which the newspaper’s printing presses are physically located. A newspaper shall be deemed to be “published” at the place where its known office of publication is located.
(f) Is formed of printed sheets. [... ]
(g) Is originated and published for the dissemination of current news and intelligence of varied, broad and general public interest, announcements and notices, opinions as editorials on a regular or irregular basis, and advertising and miscellaneous reading matter.
(h) Is not designed primarily for free circulation or for circulation at nominal rates.
(2) “Newspaper,” as used in this section, shall not include a newspaper, publication, or periodical which is published, sponsored by, is directly supported financially by, or is published to further the interests of, or is directed to, or has a circulation restricted in whole or in part to any particular sect, denomination, labor or fraternal organization or other special group or class of citizens, or which primarily contains information of a specialized nature rather than information of varied, broad and general interest to the general public, or which is directed to any particular geographical portion of any given political subdivision within which publication of such legal notice is required, rather than to such political subdivision as a whole. No newspaper otherwise qualified under this section shall be disqualified from publishing legal notices for the sole reason that such newspaper does not have as great a circulation as some other newspaper publishing in the same political subdivision.

Miss.Code Ann. § 13-3-81 (Rev.2002).

¶ 15. Section 13-3-31 simply defines a newspaper and provides the criteria a newspaper must satisfy in order to publish legal notices. It does not speak to the law for determining when a section of a newspaper is treated as a separate and independent newspaper. Consequently, § 13-3-31 is not the law in determining whether the “Focus” is part the Clarion-Ledger. With no Mississippi law on point, we are assisted by the decision of the Alabama Supreme Court in Gulf Coast Media, Inc. v. Mobile Press Register, Inc., 470 So.2d 1211 (Ala.1985).

¶ 16. In Gulf Coast Media, the court considered whether The Baldwin People was qualified to publish legal notices. Id. at 1213. Published weekly, The Baldwin People circulated as an insert in the Thursday editions of The Mobile Register and The Mobile Press. Id. at 1212. Consumers could not subscribe to or purchase The Baldwin People by itself, and it was not circulated independently. Id. at 1214. The court held that The Baldwin People lost its status as a newspaper when it was inserted into and distributed with a parent newspaper. Therefore, it did not qualify as a “newspaper” for the purposes of the legal notice statute. Id. at 1214. Further, the court noted that since it was inserted into, and distributed along with, another publication The Baldwin People was an “integral part” of a newspaper rather than a newspaper in and of itself. Id. Applying the holding from Gulf Coast Media, Inc., we find that the “Focus” is an integral part of The Clarion-Ledger.

¶ 17. There is no evidence that the “Focus” is anything other than a typical section of The Clarion-Ledger. It is not sold or distributed independently. The fact that it is not identified by a letter is subordinate to the fact that the section bears The Clarion-Ledger’s masthead. Further, irrelevant is the fact that the “Focus” is only contained in copies sold in Jackson. Section 13-3-31 does not require that the notice be contained in all copies, even if outside the relevant political subdivision.

¶ 18. For the above reasons, we find that the circuit court erred in ruling that the “Focus” was not a section of The Clarion-Ledger.

CONCLUSION

¶ 19. Though § 13-3-31 is relevant, it is not controlling in the instant matter. We hold that the circuit court abused its discretion and erred as a matter of law in determining that “Focus” was not a section of The Clarion-Ledger. We reverse the circuit court’s judgment, and we render judgment here reinstating the decision by the Jackson City Council that The Clar-iorir-Ledger/Focus was the lowest qualified bidder.

¶ 20. REVERSED AND RENDERED.

SMITH, P.J., WALLER, COBB AND CARLSON, JJ„ CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., AND EASLEY, J. DIAZ, J., NOT PARTICIPATING.

GRAVES, Justice,

Dissenting.

¶ 21. Because I find that the circuit court’s decision was correct, I respectfully dissent.

¶22. The Clarion Ledger argues that the City Council’s decision that the Focus is a section of The Clarion Ledger was supported by substantial evidence and that the standard of review requires the affir-mance of the City Council’s decision. The City Council also argues that the standard of review requires affirmance of the City Council’s decision if it was fairly debatable and supported by substantial evidence. The City Council further contends that it applied the relevant law to the facts, it reviewed all of the information submitted by the bidders and that it in no way acted arbitrarily or capriciously in making its decision.

¶ 23. “The scope of a reviewing court is limited in examining the actions of a municipal board. The order of the governing body of a municipality may not be set aside if its validity is fairly debatable. Such an order may not be set aside by a reviewing court unless it is clearly shown to be arbitrary, capricious, or discriminatory or is illegal or without substantial evi-dentiary basis.” Sunland Pub. Co. v. City of Jackson, 710 So.2d 879, 881-82 (Miss.1998); City of Jackson v. Capital Reporter Publ’g Co., 373 So.2d 802, 807 (Miss.1979). Here, the circuit court reversed the order of the City Council awarding the legal publication contract to the Clarion Ledger/Focus on the basis that the City Council failed to make specific findings of fact as to whether the Focus qualified as a newspaper under Miss.Code Ann. § 13-3-31 (Rev. 2002).

¶ 24. The interpretation of a statute is a question of law and reviewed de novo. 32 Pit Bulldogs & Other Property v. County of Prentiss, 808 So.2d 971, 973 (Miss.2002). The applicable principles of statutory interpretation and construction are well established. “If a statute is not ambiguous, the court should apply the plain meaning of the statute.” However, in the event of ambiguity, “this Court’s goal is to discern the legislative intent.” Sykes v. State, 757 So.2d 997, 1000 (Miss.2000). “[I]n determining the legislative intent, this Court may look not only to the language used but also to its historical background, its subject matter, and the purposes and objects to be accomplished.” 32 Pit Bulldogs & Other Property, 808 So.2d at 973-74.

¶ 25. Miss.Code Ann. § 13-3-31 sets forth the publication requirements that a newspaper must meet to qualify as a valid publisher of legal notices.

(1) Whenever it is required by law that any summons, order, citation, advertisement or other legal notice shall be published in a newspaper in this state, it shall mean, in addition to any other requirements imposed by law, publication in some newspaper which:
(a) Maintains a general circulation predominantly to bona fide paying subscribers within the political subdivision within which publication of such legal notice is required. The term “general circulation” means numerically substantial, geographically widespread, demographically diversified circulation to bona fide paying subscribers. In no event shall the term “general circulation” be interpreted to require that legal notices be published in a newspaper having the greatest circulation. The term “bona fide paying subscribers” means persons who have subscribed at a subscription rate which is not nominal, whether by mail subscriptions, purchases through dealers and carriers, street vendors and counter sellers, or any combination thereof, but shall not include free circulation, sales at a token or nominal subscription price and sales in bulk for purposes other than for resale for individual subscribers.
(b) Maintains a legitimate list of its bona fide paying subscribers by the following categories where applicable:
(i) Mail subscribers;
(ii) Dealers and carriers; and
(iii) Street vendors and counter sellers.
(c) Is not published primarily for advertising purposes and has not contained more than seventy-five percent (75%) advertising in more than one-half ($) of its issues during the period of twelve (12) months next prior to the first publication of any legal notice therein, excluding separate advertising supplements inserted into but separately identifiable from any regular issue or issues.
(d) Has been established and published continuously for at least twelve (12) months next prior to the first publication of such matter to be published, is regularly issued at stated intervals no less frequently than once a week, bears a date of issue, and is numbered consecutively; provided, however, that publication on legal holidays of this state or of the United States and on Saturdays and Sundays shall not be required, and failure to publish not more than two (2) regular issues in any calendar year shall not disqualify a paper otherwise qualified.
(e) Is issued from a known office of publication, which shall be the principal public business office of the newspaper and need not be the place at which the newspaper’s printing presses are physically located. A newspaper shall be deemed to be “published” at the place where its known office of publication is located.
(f) Is formed of printed sheets. However, the word “printed” does not include reproduction by the stencil, mimeograph or hectograph process.
(g) Is originated and published for the dissemination of current news and intelligence of varied, broad and general public interest, announcements and notices, opinions as editorials on a regular or irregular basis, and advertising and miscellaneous reading matter.
(h) Is not designed primarily for free circulation or for circulation at nominal rates.

Miss.Code Ann. § 13-3-81(1) (Rev.2002) (emphasis added).

¶ 26. This Court has not had occasion to interpret this statute on the basis of whether an insert in a parent newspaper qualifies as a “newspaper” as defined by Miss.Code Ann. § 13-3-81. In this instance, an Alabama Supreme Court case is illustrative. In Gulf Coast Media, Inc. v. Mobile Press Register, Inc., 470 So.2d 1211 (Ala.1985), Gulf Coast Media brought an action against the Mobile Press Register to determine whether the publication known as the Baldwin People was qualified to publish legal advertising in Baldwin County. The Baldwin People, published weekly, was owned by the Mobile Press and was circulated in the Thursday edition of the Mobile Register (morning paper) and the Mobile Press (afternoon paper).

¶ 27. Alabama’s legal notice statute, Ala.Code § 6-8-60 (1975), stated in pertinent part:

[A]ll publications required by any law, mortgage or other contract to be published in a newspaper must be published in any newspaper printed in the English language which has a general circulation in the county, regardless of where the paper is printed, if the principal editorial office of the newspaper is located within the county and which newspaper shall have been mailed under the second class mailing privilege of the United States postal service from the post office where it is published for at least 51 weeks a year.

¶ 28. The Alabama Supreme Court found that an inserted publication such as the Baldwin People loses it status as a newspaper, for the purposes of legal publication, when it is inserted into and distributed with the parent newspaper. 470 So.2d at 1214. The court also concluded that the Baldwin People was an integral part of a newspaper, and not a newspaper itself, because a consumer could not subscribe to or purchase it, and because it had no circulation of its own, other than in conjunction with the Mobile papers. Moreover, the Alabama court discussed Friedman’s Express v. Mirror Transp. Co., 71 F.Supp. 991 (D.N.J.1947), aff'd, 169 F.2d 504 (3d Cir.1948), which found that the comic section of a newspaper is an integral part that makes up the sum total of a newspaper. Gulf Coast Media, Inc., 470 So.2d at 1214. Friedman’s Express stated:

All of this melange is contained in what are known as special sections of the paper. There is the advertising section, the home section, the magazine section, the financial section, the sports section and the news section, each with its appeal to various members of the family. The collection in its entirety is recognized as a Newspaper and is carried and distributed as such without distinction as to sections. Each section is thus an integral part of the newspaper, made so not because it is physically folded in a news section, but because it has assumed the character of the journal of which it is a part; and each bears at its masthead the name of the publication of which it is a part.

71 F.Supp. at 992. Another factor which contributed to the Alabama court’s finding that the Baldwin People was a section of the parent newspaper was its identification by the section letter G. 470 So.2d at 1214.

¶ 29. In the instant case, the circuit court found that the Focus was not a section of the Clarion Ledger for three reasons: (1) the Focus is not identified by alphabet (i.e., B-State State, C-Business, D-Sports, E-Southern Style, etc.); (2) the Focus is not contained in each newspaper delivered or sold on Thursdays; and (3) the Focus is not consistent (there are three different versions of Focus — Northeast (NE), Northwest (NW), South (S)). After making the preliminary determination that the Focus is not a section of the Clarion Ledger, the circuit court found that the Focus must independently meet the requirements of Miss.Code Ann. § 13-3-31 to qualify as a newspaper.

¶ 30. This Court’s initial determination is whether the Focus is an integral part of the Clarion Ledger. I agree with the circuit court’s determination that the Focus is not an integral part of the Clarion Ledger. The Focus is not a section because it is not identified by a section letter. Furthermore, the Focus is not a section because every subscriber or purchaser cannot obtain an identical and consistent copy of the Focus on Thursdays. Three different versions of the Focus are disseminated in the NE, NW, and S. The area of town where a consumer resides or purchases the Clarion Ledger determines which version of the Focus a consumer will receive.

¶ 31. Since the Focus is not an integral part of the Clarion Ledger, the Focus has to qualify as an independent newspaper under the statute in order to publish legal notices. The Focus is not qualified to publish legal notices because it is not a newspaper as defined by Miss.Code Ann. § 13-3-31.

¶ 32. The statute is not ambiguous; therefore, the plain meaning of the statute should be applied here. Standing alone, the Focus does not meet the criteria under subsections a, b, and d of Miss.Code Ann. § 13-3-31. The Focus has no independent general circulation. A consumer cannot subscribe to or purchase the Focus on its own. The Focus can only be obtained by subscribing to or purchasing the Clarion Ledger. For these reasons, the Focus does not meet the qualifications set forth in the statute and is therefore, not qualified as a newspaper to publish legal notices.

¶ 33. Since the circuit court did not err, I would affirm its judgment. For the reasons stated, I find that the Focus does not meet the qualifications of Miss.Code Ann. § 13-3-31 and respectfully dissent.

McRAE, P.J., AND EASLEY, J., JOIN THIS OPINION.