author: 11 SULLIVAN, Judge. | LAUNDERS, Judge,

text:
    Bobby G. VICKERS and Casey R. Vickers v. INTERSTATE DODGE, et al.
    No. 2004-109.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      L. David Cromwell, Joseph S. Woodley, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, L.L.P., Shreveport, LA, for Third Party Appellant: Bank One, National Association.
    Donald C. Brown, Woodley, Williams Law Firm, LLC, Lake Charles, LA, for Defendant/Appellant: Interstate Dodge, Inc.
    R. Joseph Wilson, Gaharan & Wilson, Jena, LA, for Plaintiffs/Appellees Bobby G. Vickers Casey R. Vickers.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   11 SULLIVAN, Judge.

This suit arises out of the purchase of a truck from Interstate Dodge, Inc. (Interstate), which was financed by Bank One, NA (Bank One). Interstate and Bank One appeal the trial court’s judgment in favor of Bobby G. and Casey R. Vickers. For the following reasons, we reverse in part, affirm in part, and render.

Facts

On December 29, 1999, brothers Bobby and Casey Vickers purchased a 2000 Dodge Dakota truck from Interstate. To make the purchase, Bobby traded in a 1997 Ford truck and he and Casey executed a “COMBINATION PROMISSORY NOTE TRUTH IN LENDING DISCLOSURE STATEMENT AND SECURITY AGREEMENT” (the Note) in favor of Interstate which was assigned to Bank One. The Note is a multi-copy form with copies that are imprinted when the original is written on. The original of the Note indicates that Bobby elected to purchase credit life insurance by placing his initials on a designated line. However, Bobby’s initials are not on Bobby and Casey’s copy of the Note nor are they on Interstate’s copy of the Note.

Bobby and Casey filed suit, alleging that Bobby’s initials were forged and that Interstate and Bank One violated the Louisiana Motor Vehicle Sales Finance Act (LMVSFA), La.R.S. 6:969.1-6:969.41, which incorporates the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601-1667, and the disclosure requirements of Regulation Z of the Code of Federal Regulations, 12 C.F.R. §§ 226.1-226.36. They also alleged that the transaction violated the Louisiana Unfair Trade Practices and Consumer Protection Act (LUTPA), La.R.S. 51:1401-1414.

After a trial on the merits, the trial court determined that Bobby’s initials were a forgery and that the transaction violated the LMVSFA, the TILA, Regulation Z, and l?the LUTPA. Pursuant to La.R.S. 6:969.33, the trial court refunded the finance charge of $8,062.76 and awarded a civil penalty of $24,188.28 and attorney fees of $10,625.00. The trial court also awarded nominal damages of $300.00 to each of them under the LUTPA. The trial court further determined that Interstate and Bank One were solidarily liable for this violation and that Interstate was contractually obligated to indemnify Bank One.

Interstate and Bank One appealed, assigning a number of errors. Bobby and Casey answered the appeal, seeking an increase in attorney fees for work done on this appeal.

Disclosures

The LMVSFA, formerly the Motor Vehicle Sales Finance Act, was enacted to regulate entities engaged in the business of lending money and companies which warehouse or hold installment contracts. Terrebonne Bank & Trust Co. v. Lacombe, 464 So.2d 753 (La.App. 1 Cir.1984). As noted above, it incorporates a portion of the TILA and Regulation Z. Congress passed the TILA to provide consumers with meaningful disclosure of credit terms to allow them to compare the various credit terms available in credit transactions in order to avoid the uninformed use of credit and to protect them against inaccurate and unfair credit billing and credit card practices. 15 U.S.C. § 1601. Regulation Z was enacted to implement the TILA. 12 C.F.R. § 226.1(a).

The TILA requires that payments for insurance made pursuant to a consumer credit loan be included in the finance charge unless the lender discloses that the insurance is not required to qualify for the loan and the borrower gives affirmative written indication of his desire to purchase the insurance after being informed that the | ¡¿insurance is not required and the cost of the insurance has been disclosed to him in writing. 16 U.S.C. § 1605(b); 12 C.F.R. § 226.4(d). The LMVSFA incorporates Section 1605(b) by allowing a creditor to offer the purchase of “consumer credit insurance” to a borrower on an optional basis, if the creditor discloses “to the consumer at the time of contracting his option to purchase such insurance coverage, and ... make[s] such disclosures as are required by Regulation Z, 12 C.F.R. 226.1 et seq.” La.R.S. 6:969.25. “Consumer credit insurance” includes credit life insurance. La.R.S. 6:969.6(6) and 6:969.25(B). '

The Note signed by Bobby and Casey combines a promissory note with disclosures required by the TILA and Regulation Z and a security agreement on the vehicle purchased. It begins with the date, the buyer/borrower’s 'personal information and acknowledgments that the buyer/borrower is financing the purchase of the described vehicle from the named dealer and that the agreement is being assigned to Bank One. Next are two boxes side-by-side which are entitled “DISCLOSURES REQUIRED UNDER THE FEDERAL TRUTH IN LENDING ACT AND REGULATION.” Together, these boxes are known as the “federal box.” The left side of the federal box contains an “Itemization of the Amount Financed” in the transaction; the right side of the federal box contains information concerning the finance charge, which is stated to be “[t]he dollar amount my credit sale will cost me.”

Following the federal box is a section entitled “INSURANCE,” which contains disclosures regarding property insurance and “Credit Insurance” and includes the following:

Credit Insurance: Credit Life and Credit Disability Insurance are not required in order to obtain this credit sale and will not be provided bunless I initial below. I(We) have the option of voluntarily electing to purchase credit insurance through you:
Cost of Credit Life Insurance $ 2529.35 I(We) want voluntary credit life insurance: __ (Initials)
Cost of Credit Disability Insurance $ N/A I(We) want voluntary credit disability insurance: _(Initials)
Unless otherwise indicated, credit life • and credit disability insurance coverage is for the term of this credit sale.

(Emphasis added.) A solid black line separates the Insurance section from the remainder of the Note.

Bobby and Casey contend that the Note violates the TILA because without Bobby’s forged initials the credit life insurance premium should have been included in the finance charge but was not. Instead, the premium was included in the amount financed itemization. Specifically, Bobby and Casey urge that the requirements of 12 C.F.R. § 226.4(d) were violated in this transaction. Section 226.4(d) provides that the credit life insurance premium:

[M]ay be excluded from the finance charge if the following conditions are met:
(i) The insurance coverage is not required by the creditor, and this fact is disclosed in writing.
(ii) The premium for the initial term of insurance coverage is disclosed....
(iii) The consumer signs or initials an affirmative written request for the insurance after receiving the disclosures specified in this paragraph....

Bobby and Casey completed an application for credit life insurance, which was included in the documentation they had to complete for the purchase of the truck. Interstate and Bank One contend that the disclosures in the Note, together with Bobby and Casey’s completion of the application for- credit life insurance, satisfy the I ¡^requirements of Section 226.4(d). Bobby and Casey contend that, without one of them electing to purchase voluntary credit life insurance as provided in the Insurance section of the Note, the inclusion of credit life insurance in the Amount Financed, rather than the Finance Charge, violated Section 226.4(d).

The general form requirements for disclosures required in a transaction of this type require that disclosures be made “clearly and conspicuously in writing.” 12 C.F.R. § 226.17(a). The general rule for disclosures is that they must be grouped together and separated from other disclosures which may be required by state law. Id.; Palmucci v. GMAC, 618 F.Supp. 460 (D.C.Conn.1985). There are four exceptions to this rule. 12 C.F.R. § 226.17(a)(1). One is Section 226.18(n), which provides that “the creditor shall disclose ... [t]he items required by Sec. 226.4(d) in order to exclude certain insurance premiums ... from the finance charge.” Thus, the insurance disclosure required by Section 226.4(d) may be, but is not required to be, disclosed with the other disclosures required by Section 226.17. As described above, the insurance disclosures in the Note are separate from the other disclosures required by Section 226.17. However, the premium for credit life insurance is included in the amount financed itemization of the federal box and is also stated in the Insurance section.

In Palmucci, 618 F.Supp. 460, the plaintiffs argued that the inclusion of the insurance premium in the amount financed itemization and not in the insurance section of the retail installment contract, which contained the other required insurance disclosures, was a violation of the TILA. The court determined that this “splitting” of the disclosure of the cost of the insurance from the other two required disclosures |fiwas not error. The court’s reasoning in Palmucci is pertinent here because Interstate and Bank One’s argument is essentially the same: the insurance disclosures in the Note and the application for credit life insurance authorization are “split.” The court explained:

It is inappropriate to characterize as “split” a disclosure in which the insurance box, which contains two of the three required disclosures, incorporates by cross-reference the third requirement, the premium cost, disclosed four inches above that box in the itemization of the amount financed. So long as the insurance disclosure includes all the required items in close proximity so that the consumer can readily understand his/her rights and the cost of insurance, such disclosure, even though nominally split, complies with the law. See, e.g., D. Replansky, Truth-in-Lending and Regulation Z 175:
[Although the better practice is to place the cost of the insurance in close proximity to the rest of the disclosures, it is not required. Thus the cost or premium could be included in the itemization of the amount financed, whereas the other disclosures and affirmative request appear elsewhere. If the separation is too great or confusing, however, the creditor may not meet the requirement that the disclosures be clear and conspicuous.

Id. at 466-67 (emphasis added).

The situation present in Palmucci is not the situation here — there is no cross-reference in the Insurance section to the application and the credit life insurance application was a separate document entirely. Furthermore, under the plain terms of the Note, credit life insurance was not provided unless Bobby or Casey initialed the line provided in the Insurance section. Accordingly, we find that Bobby and Casey’s signatures on the application for credit life insurance cannot be read in conjunction with the disclosure contained in the Insurance section of the Note to satisfy the requirements of Section 226.4(d), and the credit life insurance premium is a finance charge.

| gBank One

The trial court made the following determination regarding the liability of Interstate and Bank One:

As a consequence of this court’s finding of fact that the initials “BV” were forged in the truth in lending part of the combination form, the extender of credit, both defendants, as a result of error not in good faith, violated LSA-RS 6:969.18E. In fact, this court finds that there was actual bad faith in forging parts of the subject document.
There was not sufficient evidence to prove which defendant’s agent forged the petitioner Bobby Vicker’s initials on the document. However, the “holder” of the subject consumer credit contract, was subject to all claims and defenses which the petitioner could assert against the seller of the subject vehicle.

Bank One assigns these findings as error, arguing that without any evidence that it forged or had knowledge of the forgery of Bobby’s initials it should not be held liable under La.R.S. 6:969.18(E). We agree with the trial court’s conclusion that a forgery is an intentional act. However, without proof that Bank One committed the act or knew of the forgery, holding it hable under the LMVSFA on the sole basis that it is by definition an “extender of credit” is error. The following discussion supports this conclusion.

Bank One next argues that the provisions of the TILA and Regulation Z preempt state law and that it is not liable for the forgery of Bobby’s initials because it is not a creditor under the TILA. 15 U.S.C. § 1640(a). “The term ‘creditor’ refers only to a person who both ... regularly extends ... consumer credit ... and is the person to whom the debt arising from the consumer credit transaction is initially payable on the face of the evidence of indebtedness.” 15 U.S.C. § 1602(f). Bank One also argues that, as assignee of the Note, its liability is limited to those situations in Lwhich a violation is apparent on the face of the disclosure document. 15 U.S.C. § 1641.

The TILA preempts state law only to the extent that it conflicts with the TILA. Alexiou v. Brad Benson Mitsubishi, 127 F.Supp.2d 557 (D.C.N.J.2000). In Alexiou, the court determined that a New Jersey statute which provided that the subsequent holder of a consumer note is “subject to all claims and defenses of the retail buyer against the retail seller,” N.J. State. § 12:16C-38.2, was preempted by the TILA. As the trial court’s reasons reflect, the Louisiana version of this statute was also a basis for Bank One’s liability-

Relying on Ramadan v. Chase Manhattan Corp., 229 F.3d 194 (3d Cir.2000), which held that the Federal Trade Commission holder rule was inconsistent with and preempted by 15 U.S.C. § 1641(a) because it allowed greater assignee liability than is allowed by that section, the court in Alexiou found that.New Jersey’s holder rule was also inconsistent with this provision and held that “there can be no assignee liability except where the alleged violations are apparent on the face of the disclosure statement.” 127 F.Supp.2d at 564.

The following reasoning is applicable to the situation presented here:

After all, the primary parties to the retail installment contracts at issue here were the dealer ... and the Plaintiffs. The assignee ... simply financed the transaction and was not a party to the contract. As previously indicated, Congress intends for this type of third party to be less liable for disclosure violations. It would be contrary to the goals of the TILA to hold an assignee liable under a state statute even 19though the assignee has been assigned a contract that appears perfectly compliant with the law on its face.
Moreover, if the conflicting state laws were not preempted, a creditor/assignee who conducts business on a national level would be compelled to research the laws of all of the states to ensure that it is abiding by each and every law promulgated by the states. These burdens are substantial and cumbersome to creditors and contradict the goal behind the TILA and its 1980 Amendments.

Id. at 565 (emphasis added).

As defined by the LMVSFA, “extender of credit” and “creditor” are contrary to the TILA as they extend liability to an assignee even when there is no indication on the face of the disclosure that the assigned contract violates the TILA. Accordingly, the TILA preempts the LMVSFA with regard to an assignee’s liability, and without evidence that the forgery of Bobby’s initials was apparent on the face of the Note, the trial court’s finding of liability on the part of Bank One is error. The conclusion that the holder language in the Note renders Bank One liable for the forgery is also error.

Interstate

The Louisiana Motor Vehicle Sales Financing Act v. the Truth in Lending Act

Interstate assigns as error the trial court’s finding of liability on its part and the award made pursuant to La.R.S. 6:969.18(E). The trial court believed Bobby when he testified that he did not initial the credit life insurance section request in the Insurance section of the Note. Based on the record, we find no error with this conclusion, and, consequently, find no error with the trial court’s conclusion that his initials were forged.

The trial court also found that Bank One’s representative testified “unequivocally” that the Note would have been returned to Interstate if Bobby’s h pinitials were not on it when it was received by Bank One. No such testimony was presented on behalf of Interstate. Additionally, the evidence reveals other “errors” made by Interstate in the preparation of the Note and the information provided to Bobby and Casey: the premium for credit life insurance was incorrectly stated on the Note; the true cost of the truck to Bobby, as well as the trade-in amount assigned to the truck Bobby traded in were incorrectly stated in the Note; and the Note included a balloon payment which Bobby and Casey were not made aware of. Additionally, Interstate earned a portion of the credit life insurance premium, so it had an additional interest having Bobby and Casey purchase the insurance. This circumstantial evidence - supports the conclusion that Interstate forged Bobby’s initials. Accordingly, we find no error with the trial court’s determination that Interstate is liable for the forgery of Bobby’s initials. Furthermore, we find no error with the trial court’s' conclusion that forgery is “intentional” or “not in good faith.”

Interstate next contends that the trial court erred in refunding the finance charges and awarding damages equal to three times the finance charges, as provided in La.R.S. 6:969.33(A)(l)(a). It urges that the damages provided by the TILA, which are significantly less than those provided by the LMVSFA, should have been awarded instead. Section 33(A)(1)(a) of the LMVSFA provides for “refund of all loan finance charges or credit service charges” and “the right to recover three times the amount of ... charges together with reasonable attorney fees,” if “the extender of credit has intentionally or as a result of error not in good faith violated the provisions of Part II of this Chapter.”

Louisiana Revised Statute 6:969.18(E), which is contained within Part II of the LMVSFA, provides:

[uTo the extent not otherwise limited in amount or prohibited by this Chapter, an extender of credit may contract for and receive payment of additional fees and charges not specifically mentioned hereunder, provided that such additional fees and charges are not considered to be additional finance charges for purposes of 12 C.F.R. 226.4.

As previously discussed, the credit life insurance premium is an additional finance charge for the purposes of 12 C.F.R. § 226.4 because it was not properly disclosed. Accordingly, collection of the premium is a violation of this provision.

Interstate also argues that the violation herein is only a technical violation that does not warrant the imposition of the refund and awards. This argument ignores the fact that La.R.S. 6:969.33 requires a consumer to notify the creditor of the violation before filing suit and allows the extender of credit to escape liability for the civil remedies it provides, if the creditor corrects the violation within thirty days of receipt of the consumer’s notice. La.R.S. 6:969.33(B).

Bobby and Casey notified Interstate as required by these provisions. Interstate failed to take advantage of the opportunity to correct the violation and cannot now complain that the penalty of not correcting the error is too severe.

The Louisiana Unfair Trade Practices and Consumer Protection Act

The LUTPA provides that “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” are unlawful. La. R.S. 51:1405. It confers a right of action on any person who “suffers any ascertainable loss of money or movable property, corporeal or incorporeal,” for actual damages resulting from unfair trade practices, in addition to court costs and attorney fees. La.R.S. 51:1409.

The trial court determined that Bobby and Casey “did not present significant evidence of damages as a result of defendants’ conduct.” Review of the record | ^reveals that Bobby and Casey did not present any evidence of damages which resulted from the conduct herein. Accordingly, the awards of $300.00 are improper and are reversed.

Third Party Demand

In 2001, the truck purchased by Bobby and Casey was destroyed by fire while at Finch Motors, L.L.C. (Finch) for repairs. The manufacturer replaced that truck with a new truck, which was substituted as collateral for the loan assigned to Bank One. Interstate filed a third party demand against Finch, seeking to hold it responsible in connection with the disclosures made in the Note. Interstate asserts that, by virtue of the substitution of collateral, Finch satisfies the definition of “creditor” by “arranging credit” under 15 U.S.C. § 1602(f). Finch was dismissed on a motion for summary judgment.

Under the facts presented herein and the law applicable thereto, substitution of a new truck for the 1999 truck as collateral for the Note is not a basis of liability for Finch, and it was correctly dismissed.

Venue

Interstate next assigns as error the trial court’s denial of its motion for change of venue. It contends that, because the sale of the truck to Bobby and Casey occurred in Ouachita Parish, La Salle Parish is not the proper venue under La.Code Civ.P. art. 42. Bobby and Casey point to La. Code Civ.P. art. 74 and contend that their damages occurred in La Salle Parish only, which is where they reside and where payments on the Note were issued.

After the trial court denied its exception of improper venue, Interstate filed an application for writs with this court. Interstate’s arguments on this issue were |13rejected in an unpublished opinion. See Vickers v. Interstate Dodge, Inc., 01-198 (La.App. 3 Cir.2003). We find no error with that decision.

Bank One’s Cross-Claim

Bank One filed a cross-claim against Interstate seeking indemnification, defense costs, and buy-back of the Note, pursuant to a motor vehicle contract purchase agreement it entered into with Interstate. Interstate appeals the trial court’s judgment which ordered it to indemnify Bank One for all amounts Bank One must pay under the judgment and attorney fees and legal expenses incurred by Bank One in defense of this matter. The judgment also ordered Interstate to repurchase the Note pursuant to the contract.

Under the terms of the contract, Interstate represented, warranted, and guaranteed to Bank One that the documents it provided would be “genuine,” “valid and binding,” that the signatures were “authorized and genuine,” that they were “not subject to any defenses ... or claims by the Buyer against Dealer or Bank One,” and that it had fulfilled all requirements of the TILA and all state laws governing consumer protection. Forgery of Bobby’s initials is certainly a breach of these warranties.

Interstate urges that the contract does not allow for indemnity, repurchase of Bobby and Casey’s contract, and defense costs. We have reversed the awards in favor of Bobby and Casey against Bank One; therefore, we need not address the issue of Interstate having to indemnify Bank One for amounts it must pay under the judgment. With regard to defense costs, attorney fees, and repurchase of the contract, we must consider the terms of the contract.

| uParagraph 10 gives Bank One the option of requiring Interstate to repurchase the contract or to provide a defense for Bank One, while Paragraph 12 provides for Interstate “to indemnify and hold Bank One ... harmless of and from any and all losses and expenses, including ... court costs, attorney’s fees and costs of litigation.” The indemnification provided for in Paragraph 12 is “[i]n addition to the remedies set forth in this Agreement.” Accordingly, Bank One has the right to require Interstate to repurchase the contract under Paragraph 10, to recover indemnity under Paragraph 12, and to recover defense costs and attorney fees under both Paragraphs 10 and 12. The trial court’s award of defense costs and repurchase of the agreement was not error.

Attorney Fees

Bobby and Casey seek an increase in attorney fees for the work performed by their attorney in connection with this appeal. When attorney fees have been appropriately awarded by the trial court, an increase in the award for work done on appeal is proper if “the defendant appeals and obtains no relief and ... the appeal has necessitated additional work on the part of plaintiffs counsel, provided that plaintiff has requested the increase in accordance with the proper appellate procedure.” Carbon v. Allstate Ins. Co., 96-2109 (La.App. 1 Cir. 9/28/97); 701 So.2d 462, 474, rev’d on other grounds, 97-3085 (La.10/20/98), 719 So.2d 437.

Bobby and Casey filed an answer to Interstate’s appeal and properly requested an additional award of attorney fees for work performed on appeal. However, we have reversed portions of the judgment against Bank One and Interstate. Accordingly, we will not award an additional amount for work performed by Bobby and Casey’s attorney on this appeal.

| disposition

The judgment in favor of Bobby and Casey Vickers is reversed insofar as it awards judgment against Bank One, NA and awards damages of $300.00 to each of them under the Louisiana Unfair Trade Practices and Consumer Protection Act. The judgment is affirmed in all other respects. Costs of this appeal are assessed 25% to Bobby and Casey Vickers and 75% to Interstate Dodge, Inc.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

SAUNDERS, J., dissents and assigns written reasons.

| LAUNDERS, Judge,

dissents.

I disagree with the majority’s original review in two respects. First, I believe the embarrassment and frustration that Plaintiffs experienced throughout this ordeal justifies the modest $300.00 award. I see no abuse of discretion in the trial court’s action in this regard. If the award is affirmed, it is clear that Plaintiffs would be entitled to additional attorney’s fees for the cost of this appeal.

Moreover, even if the $300.00 award is reversed, I believe the denial of attorney’s fees for this appeal is a hypertechnical application of the general rule because only 1% of the total award was reversed with respect to Interstate. Generally, an appellee may obtain additional fees for the cost of an appeal when the appellant is unsuccessful. It seems rather extreme to affirm 99% of the judgment yet deny additional attorney fees because Defendant successfully appealed $300.00 of a $25,000 judgment.

| ¡.For these reasons, I respectfully dissent.

      . This is a closed end transaction. See 12 C.F.R. § 2(10) and (20).

      . 15 U.S.C. § 1641 limits the liability of assignees, providing that an action may be maintained against an assignee "only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement.” A violation apparent on the face of the disclosure statement in-eludes, but is not limited to (1) a disclosure which can be determined to be incomplete or inaccurate from the face of the disclosure statement or other documents assigned, or (2) a disclosure which does not use the terms required to be used by this subchapter. Id.


source: Caselaw Access Project

author: IvAMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Matthew James NOLAN.
    No. 2004-360.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      Don M. Burkett, District Attorney, Many, LA, for Appellee, State of Louisiana.
    Anita D. McKeithen, John N. Boken-fohr, McKeithen & Johnson, Shreveport, LA, for DefendanVAppellant, Matthew James Nolan.
    Anna Louise Garde, Soileau & Garde, Many, LA, for Plaintiff/Appellee, State of Louisiana.
    Matthew James Nolan, Many, LA, pro se.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JOHN B. SCOFIELD , Judges.

       John. B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore

   IvAMY, Judge.

The defendant was charged with second degree murder following the death of his infant son. After a bench trial, the defendant was convicted as charged and was ultimately sentenced to life in prison without benefit of parole, probation, or suspension of sentence. The defendant now appeals, asserting that the evidence presented was insufficient to support a conviction and that he was denied effective assistance of counsel. For the following reasons, we affirm and remand with instructions to amend the minutes of sentencing.

Factual and Procedural Background

According to the record, shortly before nine o’clock on the morning of June 27, 2002, Detective Bradley Marr of the Sabine Parish Sheriffs Department was leaving the detention center in Many, Louisiana, when he received a radio transmission from dispatch requesting assistance at a Many residence for an infant who was reportedly not breathing. During the trial in the matter, Detective Marr explained that upon arriving at the scene, he came upon Amber Leann Koss and the defendant, Matthew James Nolan, crouched on the living room floor above an infant, C.N., to whom the defendant appeared to be administering rescue breathing. Detective Marr recalled that soon after he arrived, paramedics came and began performing CPR on the infant. According to Detective Marr’s testimony, Ms. Koss — the infant’s mother — asked the defendant — the infant’s father — what had happened to the child, and the defendant responded that he had dropped him. The defendant explained to Detective Marr that he was preparing a bottle for C.N. in the kitchen while holding him, and C.N. slipped through his arms. The paramedics left to take C.N. to Sabine Parish Hospital, and Ms. Koss and the defendant followed.

| ^Detective Marr testified that after the paramedics and the infant’s parents had left for the hospital, he went into the kitchen, where he saw a bottle and nipple but was unable to discern where the infant had fallen on the floor. He recalled that although he located milk and formula in the refrigerator, none was on the counter. He testified that he got on the floor and felt the carpet for spilled milk or formula and found no wet spots. Similarly, there was no milk spilled on the counter.

Detective Marr stated that he went to see Ms. Koss and the defendant at the hospital, and Ms. Koss and the defendant agreed to come to the detention center for questioning. After waiving his Miranda rights at the beginning of his interview, the defendant told Detective Marr and Detective Jack Stanton that since the birth of C.N., he had been staying with the baby and its mother at the home of the child’s maternal grandfather. He stated that the previous night, he and Ms. Koss had stayed up all night at home in the living room; she was making posters for her father’s birthday, and he was playing video games. The defendant said that Ms. Koss was still making posters when he fell asleep between five-thirty and six o’clock that morning, and he awoke between nine and nine-thirty because his son, who had fallen asleep on his chest, was crying. The defendant stated that he got up and took the baby into the kitchen to feed him, holding the pitcher of formula in his right hand, the bottle in his left hand, and C.N. in the crook of his left arm. According to the defendant, as he was filling the bottle, the baby slipped through his arm and fell onto the kitchen floor, a distance of roughly four and a half feet. He said that it appeared that C.N. hit the floor with his buttocks and back at the same time. The defendant told detectives that he immediately attended to his son, who seemed okay except that it appeared that he was not breathing. He stated that he flipped the baby over and patted him on the back hand buttocks in an attempt to induce breathing. The defendant said that he then ran to the back, where he found Ms. Koss in the shower. He recalled that he told her he had dropped the baby and it seemed like he wasn’t breathing, and he instructed her to call 911. The defendant denied that he and Ms. Koss had any visitors the previous night and averred that neither of them had consumed any alcohol or drugs. When asked if he and Ms. Koss had had any recent problems, the defendant answered in the negative. He further indicated that the baby had been very cranky over the past two to three days and had been spitting up its formula, prompting Ms. Koss to change his formula. Detective Marr testified at trial that the defendant’s statement was not in keeping with what he found at the scene. However, he noted that the defendant’s statements regarding what had happened were consistent.

C.N. was airlifted from Sabine Parish Hospital to Louisiana State University Medical Center in Shreveport on June 27 for further treatment. Detective Man-stated at trial that after he received a preliminary report from LSU Medical Center indicating that C.N. had suffered severe brain trauma due to a non-accidental injury, he began the process of securing a warrant for the defendant’s arrest. The record reflects that on June 28, 2002, the defendant was arrested on the charge of second-degree cruelty to juveniles; the following day, June 29, 2002, C.N. died at LSU Medical Center. A grand jury indictment was filed on September 26, 2002, alleging that the defendant committed second degree murder in the" death of C.N., in violation of La.R.S. 14:30.1, further alleging that the act was perpetrated while the defendant was engaged in the perpetration of cruelty to juveniles, even though he had no intent to kill or to inflict great bodily harm. The matter was tried by a judge on July 8-9, 2003, after the defendant waived his right to a jury trial.

|4In support of its case against the defendant, the State called Dr. Lynn Lloyd, a specialist in pediatric critical care, to testify on its behalf. Dr. Lloyd, C.N.’s treating physician at LSU Medical Center in Shreveport, testified that when C.N. was presented for treatment, she .noted that he had bulging fontanel (the soft spot on his head), bruising on the outsides of his arms and around his belly button, and an injury to the left side of his scrotum. She stated that shortly after C.N. was presented at the hospital, he began to have seizures, and anti-seizure medication was administered accordingly. Dr. Lloyd noted that the initial CAT scan taken of C.N.’s head showed bleeding inside, around, and outside of the brain and also indicated very severe swelling of the brain.

Dr. Lloyd testified that she spoke to Ms. Koss and to the defendant, who had followed C.N. to Shreveport, and inquired as to the child’s history. She noted that the defendant told her that while he was preparing a bottle, the baby fell, landing on its buttocks and back; he noticed that the baby was not breathing, so he attempted to help him. Dr. Lloyd said that the parents were aware of the bruising around the child’s belly button but had not noticed the injury to his scrotum. She further inquired as to whether anyone had shaken the baby, and the parents indicated that they had not.

Dr. Lloyd opined that the results of the CAT scan were “absolutely not” consistent with the history given by the defendant. She testified that if C.N. had fallen from a height of fifty inches, an examining physician would likely see swelling or.bruising where his head hit the floor and possibly bleeding or other associated problems under that particular area of the head, if any symptoms appeared. Dr. Lloyd testified that she found no bruising on the child’s head that would suggest that he had fallen. Dr. Lloyd likewise noted that brain bleeding is possible in a fall, but in C.N.’s Lease, the CAT scan indicated bleeding throughout the brain, both intercranial and inter-parechymal. In addition, she ordered tests to screen for a bleeding disorder, which came back negative. Dr. Lloyd testified that there was no evidence that would support the defendant’s claims as to how C.N. was injured.

Dr. Lloyd expressed' the opinion that C.N. suffered a brain injury due to non-accidental trauma — ie., someone intentionally hurt or shook him. She noted that C.N.’s injuries were consistent with shaking; moreover, she noted, he sustained retinal hemorrhaging, which would be extremely unlikely in the event that he had fallen. She also observed that a fall would not yield the degree of severity of brain injury suffered by C.N. In addition, she noted that shaking the infant in an attempt at resuscitation would not produce the particular injuries sustained by C.N. Dr. Lloyd testified that after C.N. was admitted to LSU Medical Center, his condition steadily deteriorated until he died.

Dr. Terry Welke, Calcasieu Parish Coroner, also testified on behalf of the State. Dr. Welke performed the autopsy of C.N. on July 1, 2002, noting the presence of blood between the dura and the brain on the left side, and he determined the cause of death to be an intercranial hemorrhage. Like Dr. Lloyd, Dr. Welke noted bulging fontanels and bilateral retinal hemorrhaging.

Dr. Christa Rodriguez, C.N.’s pediatrician, testified that when she attended to C.N. shortly after his birth on June 4, 2002, he was suffering from jaundice. However, Dr. Rodriguez noted that this condition resolved itself, and C.N. was discharged on June 6, 2002. On June 20, 2002, C.N. was brought in for a routine check-up, which was performed by another pediatrician in Dr. Rodriguez’s clinic. In the records of this visit, C.N. was described as healthy, apart from some oral thrush.

| r,The State also offered the testimony of Mr. Ernest Rodriguez,' a relative of the Koss family who was building a fence across the street, and Mr. Jerry Koss, C.N.’s maternal grandfather and the owner of the home in which the defendant, Ms. Koss, and the baby stayed. Both men arrived at the scene shortly before paramedics, and both men testified that the defendant stated that he dropped the baby.

Ms. Amber Leann Koss, C.N.’s mother, testified that she and the defendant had stayed up all night on June 26-27, 2002. She stated that the defendant fell asleep on the couch shortly after her father left for work at around six o’clock in the morning on July 27, but she remained awake, working on posters for her father’s birthday. She testified that later on, when she got up to take a bath, C.N. and the defendant were asleep on the living room couch, with C.N. on the defendant’s shoulder. Ms. Koss recalled that while she was in the bathtub, the defendant came in, carrying C.N., who was crying, and told her that he was going to feed the baby. The defendant then walked out of the bathroom. Ms. Koss testified that the next thing she knew, the defendant ran back into the bathroom and told her to call 911. She said that the defendant told her that he dropped the baby when feeding him or when fixing his bottle. Ms. Koss said that she thought the defendant was a good father.

The State tendered Dr. Scott Benton as an expert in pediatric forensic medicine. Dr. Benton stated that he had reviewed the medical records and the Social Services investigative records concerning C.N.’s injury and death. He then offered a computer presentation explaining shaken baby syndrome. Dr. Benton observed that in infants, the most prevalent cause of subdural hematomas is the stretching and breaking of|7blood vessels in the brain, the contents of which subsequently leak into the subdural space. He explained that subdural and subarachnoid hematomas are centripetal force injuries, adding that acceleration and deceleration forces acting on the brain subject nerves to the same stress as blood vessels, causing them to break and stretch, as well. - •

Dr. Benton testified that C.N.’s injuries were not consistent with a four-foot central linear impact fall and noted that there was no evidence of a linear impact, such as skin trauma, skull fracture, brain contusion, etc. Dr. Benton explained that among the different types of head injuries, those resulting from angular acceleration (centripetal force injuries) are more devastating than those caused by linear impact forces. He noted that in angular acceleration injuries, the head rotates at high speed on an axis, the neck, and the hallmark of angular acceleration is subdural and subarachnoid hemorrhaging in combination with an absence of external head trauma. Another indicator, he observed, is multilayered retinal hemorrhaging. Dr. Benton noted that retinal hemorrhaging is not usually associated with linear impact injuries unless there has been direct trauma to the eyes.

Dr. Benton opined that C.N.’s injuries were consistent with angular acceleration. In support of his opinion, Dr. Benton offered a summary of his findings, underscoring the presence of subdural and sub-arachnoid hemorrhaging and multilayered retinal hemorrhaging and the absence of external head trauma. He felt the cause of death was a diffuse axonal injury in which a large part of the left hemisphere of C.N.’s brain was injured, resulting in cell death, which in turn yielded swelling. This swelling caused a herniation of the brain, which led to brain death. Dr. Benton further observed that where a child is not breathing and is unconscious, as in C.N.’s case, the child is exhibiting signs of a brain stem injury. Finally, he | ¡¡opined that “[w]ith a reasonable medical certainty, this child died of abusive head trauma and as well manifested prior trauma of likely an abusive etiology that was not the fatal cause of death.”

Dr. Benton likewise found that the bruising noted on the child’s buttocks was not consistent with a fall. He explained that because a child’s diaper, acts like an airbag, it is difficult to cause bruising on a child’s buttocks. Dr. Benton found that these bruises predated the child’s mortal injuries.

The defense presented testimony of a few of the defendant’s friends, as well as his aunt, who attested to the defendant’s fondness for his son. Those who were asked said that they never saw the defendant abusing the Child.-

The defendant testified on his own behalf. He Stated that he was twenty-three years old as of the date of trial, that he received a GED, and that he was a carpenter by trade. He further stated that he lost his job after the birth of his son because he wanted to spend more time with the . child. The defendant’s testimony repeated the substance of his June 27, 2002 statement to detectives, viz., that while he was preparing a bottle of formula, his son, whom he was carrying, slipped from his arm and fell onto the kitchen floor.

Following the presentation of evidence and closing arguments, the trial judge ruled that the State had proven the defendant’s guilt as to the charge of second degree murder beyond reasonable doubt, excluding any reasonable hypothesis of innocence. The defendant’s motion for a new trial was denied on November 7, 2003. The defendant waived delays as to sentencing,- and, pursuant to La.R.S. 14:30.1(B), the trial judge imposed a term of life imprisonment without benefit of parole, probation, or suspension of sentence.

|9The defendant appeals his conviction, asserting that the evidence adduced at trial was insufficient to support a conviction for second degree murder. The defendant further claims that he did not receive effective assistance of counsel.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. We find no such errors. However, our examination of the record indicates that although the transcript of sentencing reflects the trial judge’s order that the defendant’s sentence be served without benefit of parole, probation, or suspension of sentence, the minutes of sentencing do not reflect as such. Accordingly, we remand the matter to the trial court with instructions to amend the minutes of sentencing to reflect that the defendant’s sentence was imposed without benefit of parole, probation, or suspension of sentence.

Sufficiency of Evidence

The defendant’s first argument on appeal is that the evidence adduced at trial was insufficient to support a conviction for second degree murder. More specifically, the defendant asserts that the State did not exclude every reasonable hypothesis of evidence in presenting its case against him. The defendant acknowledges on appeal that the medical evidence indicting that C.N.’s fatal injuries were caused by “shaken baby syndrome.” However, he points out that there was evidence that the child could have died as a result of a seizure or a fall.

In reviewing a defendant’s assertions regarding insufficiency of evidence, an appellate court, viewing the evidence in a light most favorable to the prosecution, must determine whether any rational trier of fact could have concluded that the | inessential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Brown, 02-1922 (La.5/20/03), 846 So.2d 715; State v. Captville, 448 So.2d 676, 678 (La.1984). Moreover, as in the instant matter, when circumstantial evidence provides the basis for the conviction, La. R.S. 15:438 dictates that such evidence must exclude every reasonable hypothesis of innocence. Brown, 846 So.2d 715.

We note that, with regard to arguments concerning sufficiency of evidence, La. Code Crim.P. art. 821 provides, in pertinent part, that:

A. The defendant may move for a post verdict judgment of acquittal following the verdict. A motion for a post verdict judgment of acquittal must be made and disposed of before sentence.
B. A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the State, does not reasonably permit a finding of guilty.

The record of the proceedings below does not indicate that the defendant filed a motion for post-verdict judgment of acquittal pursuant to La.Code Crim.P. art. 821; nevertheless, despite the absence of such a motion, we will consider his arguments pertaining to sufficiency of the evidence. State v. Hampton, 38,017 (La.App. 2 Cir. 1/28/04), 865 So.2d 284; see also State v. Washington, 421 So.2d 887 (La.1982).

The defendant was convicted of second degree murder in the death of C.N. In this respect, La.R.S. 14:30.1(A) provides, in relevant part, that “[sjecond degree murder is the killing of a human being: [... ](2)(b) When the offender is engaged in the perpetration of cruelty to juveniles, even though he has no intent to kill or to inflict great bodily harm.” Cruelty to juveniles is defined in La.R.S. 14:93(A) as “the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or In suffering is caused to said child.” In turn, La.R.S. 14:12 indicates that criminal negligence occurs “when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.” In State v. Richthofen, 01-500 (La.App. 5 Cir. 11/27/01), 803 So.2d 171, the fifth circuit described the conduct punishable under La.R.S. 14:12 as disregard for a child’s interest such that the conduct “amount[s] to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under like circumstances.” The Louisiana Supreme Court has' explained that: “Unlike general or specific criminal intent, criminal negligence is essentially negative. Rather than requiring the accused intend some consequence of his actions,-criminal negligence is found from the accused’s gross disregard for the consequences óf his actions'.” State v. Martin, 539 So.2d 1235, 1238 (La.1989). Louisiana Revised Statutes 14:30.1(B) provides that a defendant convicted of second degree murder shall be imprisoned for life without benefit of parole, probation, or suspension of sentence.

In the case sub judice, because the defendant was the only eyewitness to the events which caused C.N.’s death, and because the defendant consistently testified that he accidentally dropped the child, the State was forced to rely heavily upon medical evidence in seeking a conviction. Based upon our review of the record, we. find that the evidence offered by the State was sufficient to support the defendant’s conviction for second degree murder as charged in the indictment.

The defendant posits on appeal that C.isT. could have died as’ a result of seizures. We note that this argument was not presented below; moreover, the State’s' |^medical evidence, as outlined above, establishes that C.N. died as a result of abusive head trauma, specifically, from being shaken.

The defendant further contends that the testimonies of Drs. Lloyd and Benton were contradictory regarding the nature of C.N.’s injuries. Dr. Benton, the defendant notes, stated that as an, immediate consequence of his injuries, C.N. would not have been able to cry. However, Dr. Lloyd testified that upon C.N.’s presentation at LSU Medical Center, he wás trying to cry and was breathing intermittently.

Our review of the record indicates that both Dr. Benton and Dr. Lloyd concluded that C.N. died as a result of injuries sustained when he was deliberately shaken. Likewise, Dr. Lloyd testified that the child’s injuries would have produced such symptoms immediately. Accordingly, the defendant’s argument in this respect is not supported by the record. Moreover, with regard to the'defendant’s claims that C.N'. could have died as a result of seizures, there is no evidence that would suggest that the ‘seizures that C.N. suffered upon arrival to LSU Medical Center derived from anything but the neurological damage caused by the fatal- injury. There is no' evidence that indicates that C.N. suffered from ’ seizures prior to June 27, 2002, and the testimony of his pediatrician was devoid of any references to neurological abnormalities.

Furthermore, although the CAT scan of C.N.’s brain indicates the presence of older blood, thereby suggesting that C.N. sustained a head injury that predated the June 27, 2002 injury, and although Dr. Lloyd testified that this prior injury could not be ruled out as a factor that contributed to C.N.’s death, we note that in presenting its case, the State is “not required to prove that [the defendant’s] violent act [... ] was the sole cause of death, but only that it hastened or clearly contributed to the child’s |13death.” State v. Obney, 99-592, p. 9 (La.App. 3 Cir. 8/11/99), 746 So.2d 24, 29, writ denied, 99-2667 (La.5/5/00), 760 So.2d 1190. (Citations omitted.) (Emphasis in original.) We find that the evidence detailed above establishes beyond a reasonable doubt that the defendant’s actions clearly contributed to C.N.’s death.

Based upon our examination of the evidence adduced at trial, in a light most favorable to the prosecution, we conclude that the State proved the defendant’s guilt beyond a reasonable doubt, excluding every reasonable hypothesis of innocence. Accordingly, this assignment is without merit.

Ineffective Assistance of Counsel

In his second assignment of error, the defendant contends that he was denied effective assistance of counsel, asserting that trial counsel failed to provide expert testimony on his behalf and failed to properly cross-examine the State’s witnesses. The defendant concedes that his argument in this respect is appropriately addressed through post-conviction relief; in raising this assertion before this court, the defendant merely seeks to preserve an ineffee-tive-assistance-of-counsel claim. Accordingly, this assignment of error presents nothing for our review at this time, and it is not properly before this court.

DECREE

For the foregoing reasons, the conviction of the defendant, Matthew James Nolan, is affirmed. We remand with instructions to the trial court to amend the minutes of sentencing to reflect that the term of imprisonment was imposed without benefit of parole, probation, or suspension of sentence.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . While included in the record, a portion of Dr. Benton’s computer presentation is incompatible with this court's operating system. A hard copy of a portion of the presentation was, however, filed into the record. Notwithstanding the fact that the complete presentation was unavailable for review, the record is otherwise sufficient for this court's consideration.


author: 1 THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Edwin E. MYLES.
    No. 04-264.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.

      M. Craig Colwart, St. Mary Parish I.D. Board, New Iberia, LA, for Defendant/Appellant, Edwin E. Myles.
    Phillip Haney, District Attorney, New Iberia, LA, for Plaintiff/Appellee, State of Louisiana.
    Walter James Senette Jr., Assistant District Attorney — 16th Judicial District Court, Franklin, LA, for Plaintiff/Appellee, State of Louisiana.
    Edwin E. Myles, DeQuiney, LA, pro se.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., BILLIE COLOMBARO WOODARD, and OSWALD A. DECUIR, Judges.
   1 THIBODEAUX, Chief Judge.

The Defendant, Edwin E. Myles, pled guilty to possession with intent to distribute marijuana, a violation of La.R.S. 40:966(A) and was sentenced on December 7, 2000, to serve ten years at hard labor in accordance with a plea bargain agreement. His sentence was suspended and the Defendant was placed on supervised probation for five years. In February, 2003, the Division of Probation and Parole filed a motion to revoke the Defendant’s probation. After the Defendant admitted to probation violations, the trial court revoked his probation and ordered him to serve his original sentence of ten years.

The trial court denied a pro se motion to reconsider the sentence. The court subsequently granted the Defendant an out-of-time appeal pursuant to the Defendant’s pro se notice of intent seeking a “writ and/or appeal” to this court. The trial court stated it appeared the Defendant wished to appeal his sentence, although it was unsure of the nature of his claim.

PROCEDURAL ISSUES

Defense counsel contends that a reading of the April 2003 and March 2004 motions indicate the Defendant wishes to appeal his probation revocation. Defense counsel acknowledges that the proper mode of review for revocation proceedings is an application for supervisory writs, not an appeal. However, in the interest of judicial economy, defense counsel asks this court to consider the merits of his claims regarding the revocation proceeding.

The Defendant filed two pro se briefs in this court. In both briefs, he raises claims challenging his conviction and sentence. He also raises one claim ^concerning his probation revocation, specifically, that his probation was revoked on old charges for which he was not convicted.

This court has, in the interest of judicial economy, considered revocation issues on appeal as if the issues were before the court on supervisory writs in a case in which the defendant also challenged his conviction. See State v. Lavergne, 97-752 (La.App. 3 Cir. 6/3/98), 716 So.2d 92. This case differs somewhat in that it appears the Defendant was not granted an appeal of his conviction; however, he challenges his conviction and sentence on appeal. However, in the interest of judicial economy and because the trial was uncertain as to the nature of the Defendant’s claim, we will consider both the claims regarding the Defendant’s conviction and sentence as well as the claims regarding the revocation.

The District Court Improperly Revoked the Defendant’s Probation Based Upon Nonpayment of Money Owed

Defense counsel claims the district court failed to make a determination of whether the Defendant had the means to pay the money owed and whether he willfully failed to make the payments.

In Bearden v. Georgia, 461 U.S. 660, 672-73, 103 S.Ct. 2064, 2073, 76 L.Ed.2d 221 (1983), the supreme court set forth the factors to consider and procedures to be employed when a defendant has not paid his fine or restitution:

We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State’s interests in | apunishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the pro- . bationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.

(Footnote omitted).

The trial judge asked the Defendant generally if he had an explanation for his violations. During his explanation of his violations, the Defendant stated:

When I got pulled over—you know, I know they want me to pay all I owe, all the fees and all the cost of court and everything I owe—but I was, you know—I had started on my own with the music company I was working with for awhile. You know, I was getting to where I was before, when I got pulled over.

In our view, the court’s inquiry was sufficient to meet the Bearden requirement that the judge “inquire into the reasons for the failure to pay.”

As to whether the Defendant made sufficient bona fide efforts to acquire the resources to pay, we note the probation officer stated that the Defendant’s company was not willing to pay unless they could be assured he was not going to be imprisoned. From this, we infer that the Defendant requested money from his company and the company was willing to pay if the Defendant’s probation was not going to be revoked. Although somewhat tenuous, the record is sufficient to find he made “bona fide efforts legally to acquire the resources to pay.”

The State Presented Improper Evidence For The Court’s Consideration In Deciding Whether To Revoke The Defendant’s Probation

Counsel notes the court allowed the State to present reasons for revocation not listed on the rule to revoke in that it allowed presentation of the 14Pefendant’s prior criminal record. Counsel contends the Defendant’s convictions prior to being placed on probation were irrelevant to the revocation proceeding.

The Defendant is correct. The commission of the offenses was not listed on the motion to revoke probation. At the hearing, the prosecutor asked the probation officer if she had looked into the Defendant’s criminal background to determine his criminal convictions. She confirmed that she did this and that she found he had a conviction in federal court in the State of Florida for counterfeiting. He was indicted on this charge on August 8, 1995, and had successfully completed his probationary term of three years. Next, she testified that he had a March 24, 1983 conviction for grand larceny in New York. As for the remaining offenses, Ms. Santiny testified, “marijuana — five. I am not really sure what that means. Fifth offense — -in the Bronx, sentencing for five days. That as [sic] April 9th of '85, disorderly conduct.” These offenses were irrelevant to the revocation proceeding in that they occurred prior to the Defendant being placed on probation. Although the judge did not specifically state that she considered the prior convictions in revoking probation, since this information was part of the State’s testimony seeking revocation and the judge did not comment that the information was irrelevant, we assume she considered the information. This was improper.

The District Court Improperly Denied Defendant Counsel At His Revocation Proceeding

Counsel contends the district court made no effort to determine whether counsel should have been appointed due to the complexity of the issues presented. He points out that the issues were primitively presented to the court in the post-revocation motions.

|sAt the revocation proceeding held March 18, 2003, the Defendant was not represented by counsel. At the hearing, the Defendant’s probation officer, Angela Santiny, testified that the Defendant had not reported to his probation officer since March 12, 2001. From December of 2000 to August of 2001, the Defendant’s probation officer was Ann Denson. According to Ms. Santiny, Ms. Denson requested a warrant for the Defendant’s arrest in August of 2001 when she could not locate him. Ms. Santiny testified the Defendant had left the state and was found in October; he told her he was living in Mississippi. Additionally, Ms. Santiny testified the Defendant was behind in his supervision fees in the amount of $720.00, had not had a substance abuse evaluation and had not paid his fine or court costs. Ms. Santiny was asked by the prosecutor if she had looked into the Defendant’s criminal background to determine his criminal convictions. She testified that he had a conviction in Florida federal court as well as convictions in New York, all of which occurred before his conviction in the present case.

After the probation officer testified, the Defendant was called to testify by the court. He was questioned about and admitted to his noncompliance with all of the conditions with the exception of leaving the state. When asked for an explanation for the violations, he testified that he was being randomly drug tested in his job offshore and that his first probation officer told him he did not have to do the drug testing. As for the failure to report, he explained that his mother and uncle passed away and he was seeking counseling to deal with their deaths. Finally, the probation officer explained that the company the Defendant was working for was not willing to pay the costs and fines until they could be assured that he was not going to be revoked. The judge, in revoking probation, stated she felt the biggest problem was the failure to cooperate with the probation officer.

| fiThere is no general right to counsel at probation revocation proceedings. The supreme court, in Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1764, 36 L.Ed.2d 656 (1973), stated:

It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must- be allowed the responsible agency in making the decision. Presumptively, it may be said that counsel should be provided in- cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request,- based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (n) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.

In Baggert v. State, 350 So.2d 652 (La.1977), the defendant was advised that he could have an attorney present at his parole hearing at his expense. At the proceeding, the defendant denied the charge of criminal conduct brought against him. The supreme court stated, “fundamental fairness requires that counsel be provided for the indigent parolee in cases where he might be expected to encounter difficulty in presenting his version of a disputed set of facts.” Id. at 655. Employing the 17guidelines set forth in Gagnon v. Scarpelli the supreme court found that relator, who denied the charged criminal conduct, had a right to appointed counsel upon request.

Citing Gagnon v. Scarpelli, the second circuit in State v. Edwards, 440 So.2d 845 (La.App. 2 Cir.1983), set forth the factors it considers in this situation:

The defendant in a probation revocation proceeding is not always entitled to counsel. His right to counsel exists only when'due process requires that he be represented. Due process requires he be represented when the complexities of the issues involved in the revocation proceeding mandate assistance of counsel to assure fundamental fairness at the revocation hearing. When due process requires counsel the defendant must be advised of his right to counsel, and in the event he then requests an attorney, one must be appointed to represent him at the revocation hearing.

Id. at 847.

Gagnon seems to require that a defendant be informed he has a right to request counsel. However, in determining that a defendant has a right to have counsel appointed, the aforementioned cases seem to mandate a showing that fundamental fair-, ness will not be assured if counsel is not appointed. The cases seem to imply that fundamental fairness will not be afforded the defendant if he does not have appointed counsel and he either denies the probation violations, or the reasons for his violation are too complex for him to present by himself.

In State v. Lavergne, 97-752 (La.App. 3 Cir. 6/3/98), 716 So.2d 92, this court stated that whether counsel should be present at a revocation hearing is a case-by-case determination depending on if “there will be complex or disputed facts at issue that would be difficult for an untrained layman to develop or present.” Id. at 95-96.

In this case, it is possible that if counsel had represented the Defendant at the hearing, he or she would have objected to the admission of the irrelevant | scriminal history presented by the State and perhaps called the original probation officer as a witness to testify whether she told the Defendant he did not have to submit to drug testing because he was doing so in conjunction with his employment. Had these issues been more fully explored, the court may have considered a less onerous sanction. Thus, we choose to remand this case for another revocation hearing at which the Defendant would be given the opportunity to be represented by counsel.

The District Court Did Not Adequately Consider Alternative Sanctions Pri- or To Revoking The Defendant’s Probation

Essentially, the uncontested violations admitted by the Defendant were the failure to report for approximately two years, not permitting the officer to visit the Defendant’s home and not remaining within the jurisdiction of the court. Although we have previously found that the trial court adequately inquired into the reasons for the failure to pay and the Defendant did make sufficient bona fide efforts to acquire the resources to pay, this violation may also be considered in assessing whether revocation was proper.

In State v. Sussmann, 374 So.2d 1256, 1259 (La.1979), the supreme court stated:

Furthermore, not every probation violation is serious enough to warrant the drastic sanction of revocation. C.Cr.P. 900 vests the trial judge with wide discretion when a condition of probation is violated, because the legislature recognized the necessity of judicial discretion in dealing with probation violations, which can be either minor or serious. With C.Cr.P. 900 the legislature intended the punishment for probation violations to be tailored to the facts of the case, the seriousness of the misdeed, and the 13needs of the probationer. State ex rel. Robertson v. Maggio, 341 So.2d 366 (La.1976).

In State v. Rexford, 95-152, p. 2 (La.App. 5 Cir. 6/28/95), 658 So.2d 27, 29, the court stated:

The trial court has wide discretion in revoking defendant’s probation and we will not reverse the trial court’s decision absent an abuse of that discretion. See La.C.Cr.P. art. 900; State ex rel. Robertson v. Maggio, 341 So.2d 366 (La.1976); State v. Clark, 600 So.2d 785 (La.App. 5 Cir.1992).

These omissions alone may be insufficient to warrant revocation. However, we remand this case for further proceedings where Defendant will be given the opportunity to be represented by counsel at these proceedings. The trial court will then have the opportunity to consider more fully and with all the guarantees of due process the entirety of the allegations against the Defendant.

PRO SE CLAIMS

The Defendant contends his right against self-incrimination was violated by arresting officers and that his Fourth Amendment rights were violated by the seizure of his possessions in the absence of a search warrant. He additionally contends he received ineffective assistance of counsel, that his guilty plea was the product of threats, that there was insufficient evidence to convict him and that he was illegally detained for fifteen hours while officers secured a warrant. Furthermore, the Defendant claims he was not asked if he needed counsel for the revocation hearing and that his probation should not have been revoked on the basis of old misdemeanor convictions. Finally, the Defendant complains that the trial court failed to articulate a factual basis for his sentence, that his sentence is excessive and that appellate counsel has not filed a brief on his behalf.

|1(1The Defendant further claims that he did not intend to possess or sell marijuana and he was not the person who sold the officers the drugs. He claims that he was not advised for the reason for his arrest or detention, his right to remain silent or his right to counsel. Additionally, he contends his counsel was ineffective because his legal knowledge and preparation were minimal, he failed to appear at the hearings held prior to sentencing and that he did not contact witnesses or attempt to challenge the State’s case. According to the Defendant, if counsel had asked for discovery he would have found the State made “some serious mistakes” regarding his arrest, detention and seizure of his property. He contends counsel compelled him into accepting probation.

Next, the Defendant claims the State’s evidence was nonexistent, and thus insufficient to convict him beyond a reasonable doubt. He also contends that his probation was revoked on old charges for which he was not convicted. Moreover, the Defendant claims the judge failed to state a factual basis for his sentence and that the sentence imposed is excessive.

Finally, the Defendant contends there was ho probable cause to search his apartment without a search warrant, that he was not arraigned in a timely manner and that his statement was the product of an unlawful interview.

The Defendant’s claims that his probation should not have been revoked on the basis of old misdemeanor convictions and that the assistance of counsel should have been offered to him were both addressed above. The Defendant’s allegation regarding his appellate counsel’s failure to file a brief is factually incorrect. This court received a brief from appellate counsel after the Defendant’s pro se brief raising this claim was filed. To address the Defendant’s claim that his guilty plea was the product of threats, we have reviewed the guilty plea transcript. At the guilty plea h proceeding, the Defendant indicated he was entering the plea agreement willingly and voluntarily and that no threats or promises other than the plea agreement had been made to him. This claim has no merit. Additionally, the Defendant cannot seek review of his sentence as it was imposed in conformity with his plea agreement set forth in the record at the time of the plea. See La.Code Crim.P. art. 881.2(A)(2). Finally, the alleged errors occurring prior to entry of the guilty plea, including sufficiency of the evidence and ineffective assistance of counsel, were non-jurisdictional defects waived by the entry of the plea. See State v. Holder, 99-1747 (La.App. 3 Cir. 10/11/00), 771 So.2d 780 and State v. Myers, 99-677 (La.App. 3 Cir. 12/8/99), 753 So.2d 898, writ denied, 00-0053 (La.6/23/00), 765 So.2d 1036. Accordingly, the Defendant’s pro se claims lack merit.

CONCLUSION

For the foregoing reasons, the Defendant’s conviction and sentence are affirmed. We remand this case for an evi-dentiary hearing on the Motion and Order for Hearing to Revoke Probation. Defendant shall be given an opportunity to be represented by counsel at this hearing.

CONVICTION AND SENTENCE AFFIRMED. CASE REMANDED FOR EVIDENTIARY HEARING ON MOTION AND ORDER TO REVOKE PROBATION.

      . The court in Baggert noted the Court in Gagnon v. Scarpelli perceived no difference between the guarantee of due process in probation revocation proceedings and parole revocation proceedings.

      . These violations were listed in the motion to revoke. At the hearing, the prosecutor did not question the probation officer separately as to each one. The probation officer testified the defendant had not reported since March 12, 2001 and that his first probation officer had a warrant issued because she could not find him in August of 2001. Additionally, the probation officer testified the defendant had "absconded ... left the state.”


author: h SULLIVAN, Judge.

text:
    Donny NGO v. Mark ESTES, et al.
    No. 04-186.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 29, 2004.
    Donny Ngo, in Proper Person, Kinder, LA, Plaintiff/Appellant.
    Samuel B. Gabb, Lundy & Davis, Lake Charles, LA, for Defendants/Appellees, Mark Estes, Tommy Davis, Chris Wharton, Carleen Vidrine, Richard Stalder.
    Robert Ash, Kinder, LA, Defendant.

      Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   h SULLIVAN, Judge.

Donny Ngo, an inmate in the Allen Correctional Center in Kinder, Louisiana, appeals the dismissal of his suit on an exception of prematurity. For the following reasons, we affirm.

Discussion of the Record

Mr. Ngo filed suit on August 7, 2003, alleging that various officials at the Allen Correctional Center failed to protect him from several unprovoked attacks by his “known enemy,” fellow-inmate, Robert Ash. He alleges that the “last straw” occurred on July 8, 2002, when the warden ordered him to report to the same work area as Mr. Ash, who promptly attacked him for the third time in nine months. Mr. Ngo further alleges that he initiated an administrative remedy procedure (ARP). In his petition, he indicates that case, identified as ALC-2002-728, is “yet, on-going.” In his appellate brief, he alleges that he signed for a response to the ARP, but was not given a copy of it because he was under suicide watch at that time. In his suit, he seeks an injunction, monetary damages, and an immediate transfer.

On September 11, 2003, the Defendant-employees of the Department of Public Safety and Corrections (DPSC) filed an exception of prematurity, arguing that Mr. Ngo’s suit should be dismissed for failure to exhaust his administrative remedies. The trial court granted the exception, dismissing the suit without prejudice on December 23, 2003. After the trial court denied his motion for reconsideration, Mr. Ngo filed this appeal, arguing that he was not required to exhaust his administrative remedies, as the Louisiana Supreme Court declared those procedures unconstitutional in Pope v. State, 99-2559 (La.6/29/01), 792 So.2d 713.

| a Opinion

In Pope, 792 So.2d 713, the supreme court held that the Louisiana Corrections Administrative Remedy Procedure (CARP), La.R.S. 15:1171-79, in effect at that time, violated La. Const, art. V, § 16(A) to the extent that it divested the district courts of original jurisdiction over tort actions filed by inmates against the DPSC and its employees. In particular, the supreme court found objectionable those provisions that “allow[ed] the [DPSC], in tort actions, to effectively adjudicate its own delictual liability, and then require[d] the district courts to give ‘manifest error rule’ deference to that adjudication.” Id. at 721 (footnote omitted). However, the supreme court also recognized in Pope that the legislature “is free to enact procedures for initial submission of tort claims by prison inmates to an administrative agency for review, ... as long as the action of the administrative agency does not constitute the exercise of original jurisdiction.” Id. at 720.

Pursuant to 2002 La.Acts No. 89, effective April 18, 2002, the legislature amended CARP to cure the constitutional problems identified in Pope. Specifically, the legislature amended La.R.S. 15:1172 to require that an offender initiate administrative remedies for delictual actions within ninety days of the date of injury or damage; to provide that an offender’s claim is abandoned if he fails to do so and that any subsequent suit asserting such a claim shall be dismissed with prejudice; to permit the district court to dismiss an offender’s suit without prejudice if the administrative remedy process has not been completed; and to provide that liberative prescription on an offender’s delictual actions shall be suspended upon the filing of such a grievance until the final agency decision is delivered. Act 89 also amended RLa.R.S. 15:1177 to exclude delictual actions for injury or damages from the judicial review prescribed for other actions under CARP.

In Cheron v. LCS Corrections Services, Inc., 02-1049 (La.App. 1 Cir. 2/23/04), 872 So.2d 1094, writ granted, 04-0703 (La.5/14/04), 872 So.2d 532, the first circuit held that the provisions of Act 89, although remedial, could not be applied retroactively to disturb vested rights. Under the facts of that case, where more than ninety days had elapsed from the date of the inmate’s injury and the effective date of Act 89, and the inmate failed to file any administrative remedies, the first circuit concluded that applying Act 89’s abandonment provisions would deprive the inmate of a vested right. In Dailey v. Travis, 02-2051 (La.App. 1 Cir. 2/23/04), 872 So.2d 1104, writ granted, 04-0744 (La.5/14/04), 872 So.2d 527, the first circuit concluded that CARP’s former administrative regulations could, not be enforced without encountering the problems with judicial review that Pope found to be unconstitutional. Accordingly, the first circuit refused to dismiss the inmates’ suits in both cases as premature because the DPSC was unable to show that a valid administrative remedy existed.

As the court explained in Cheron, 872 So.2d at 1103 (citation omitted) (emphasis added):

The party that raises the'objection of prematurity has the burden of showing that an administrative remedy is available, by reason of which the judicial action is premature. Once the existence of an administrative remedy is established, the burden shifts to the plaintiff to show that the specified administrative remedies ■ or procedures have been exhausted or that the present situation is one of the exceptional situations where the plaintiff is entitled to judicial relief because any administrative remedy is irreparably inadequate.

In the present case, we do not know the date that Mr. Ngo filed his administrative remedy. However, from the allegations in the attachment to his | ¿petition, it appears that the “last straw” that prompted action was the physical attack that allegedly occurred on July 8, 2002, after Mr. Ngo was ordered to work in the same area as Mr. Ash. Because this incident occurred after Act 89’s effective date of April 18, 2002, we do not reach the retroactivity issues that were present in Cheron and Dailey. As the second circuit explained in Wood v. Martin, 37,856, p. 5 (La.App. 2 Cir. 12/10/03), 862 So.2d 1057, 1060 (emphasis added), in discussing Act 89: “Under the post-Pope statutory scheme, all complaints and grievances, including traditional tort claims seeking monetary relief, are subject to administrative procedures.” Accordingly, we find that the Defendants have met their burden of showing that a valid administrative remedy existed for Mr. Ngo’s claim. The burden then shifted to Mr. Ngo to show that his administrative remedies have been exhausted or that those remedies are irreparably inadequate. On the record before us, we find no error in the trial court’s dismissal of Mr. Ngo’s suit as premature.

The above analysis is based on the classification of Mr. Ngo’s suit as a traditional tort claim, as it seeks monetary damages-for personal injuries sustained in an attack. However, the allegation that he was not separated from a particular inmate and his request for a transfer can be interpreted as raising a claim based upon a prisoner’s conditions of confinement. Such claims are not considered to be “traditional ‘civil matter[s]’ ” under the Louisiana Constitution of 1974, and they were not the subject of the constitutional analysis in Pope, 792 So.2d 713. Peterson v. Austin, 36,365, p. 5 (La.App. 2 Cir. 12/11/02), 836 So.2d 235, 238, writ denied, 03-0510 (La.1/30/04), 865 So.2d 70. A claim seeking a remedy with respect to a prisoner’s conditions of confinement is subject “not only to administrative review, but | Kalso to the provisions concerning judicial review of administrative acts.” Wood, 862 So.2d at 1061.

Additionally, the Prison Litigation Reform Act (PLRA), at La.R.S. 15:1184(A)(2), provides: “No prisoner suit shall assert a claim under state law until such administrative remedies as are available are exhausted. If a prisoner suit is filed in contravention of this Paragraph, the court shall dismiss the suit without prejudice.” The PLRA defines “prisoner suit” as “any civil proceeding with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison....” La.R.S. 15:1181(2). Thus, the doctrine of exhaustion of administrative remedies applies to Mr. Ngo’s suit, regardless of whether it is based in tort or whether it is a “prisoner suit.” Because the record does not demonstrate that Mr. Ngo complied with statutory and/or regulatory procedures before filing suit, we find no error in the dismissal of his suit without prejudice.

Decree

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiff-Appellant, Donny Ngo.

AFFIRMED.