author: JjPEATROSS, J.

text:
    Lela FOY-WATSON, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
    No. 37,106-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      The Law Office of Alex S. Lyons by Alex S. Lyons, Jeffrey Lee Little, Shreveport, for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner by J. Martin Lattier, Walter S. Salley, Shreveport, for Appellee.
    Before WILLIAMS, STEWART & PEATROSS, JJ.
   JjPEATROSS, J.

This appeal arises from a workers’ compensation judgment denying workers’ compensation benefits to the plaintiff, Lela Foy-Watson (“Watson”). Watson now appeals the judgment. For the reasons stated herein, we affirm in part, reverse in part and remand for further proceedings.

FACTS

In January 1999, Watson worked as an environmental technician for General Motors Corporation (“GM”) at the GM Truck Assembly Plant in Shreveport. On the evening of Saturday, January 30, 1999, Watson was tasked to pick up and distribute tools. The production line was closed for the weekend and the area where she was working was poorly lit because the plant’s main lights were off. While she was working, Watson tripped and fell to the ground when something caught her foot. When she fell, Watson tried to catch herself with her hands and ended up falling on her hands and knees and then onto her stomach and chest, hitting the ground hard. There were no witnesses to the accident.

Watson told the security guard on duty at the plant that she had injured herself and she was sent to the emergency room at Willis-Knighton Hospital. When she was admitted, she filled out a form where, under a section captioned “chief complaint,” she wrote:

Knees hurt, hands hurt and ribs on left side of my body.

Watson did not list back pain on this form; however, the physician’s chart from the emergency room reflects that Watson complained of right knee and wrist pain with back discomfort and that she was “sore ^everywhere.” Despite this notation, the treating physician wrote that he found no “obvious” back injury during an examination of Watson’s body.

On Monday, February 1, 1999, when the plant reopened, GM made a report of Watson’s accident. This report indicates that Watson was “walking in area toward platform” when she fell and that she suffered a “contusion of chest wall: rib-left.” Watson filled out a form captioned “Employee’s Report of Occupational Injury or Disease.” The form asked the employee to list:

Nature of injury or disease. (Describe FULLY. Include all parts of body affected.)

Watson wrote:

Both hands, both knees, and left side ribs

Watson did not include any alleged back injury in her report.

On that same day, Watson went to Willis-Knighton’s ‘Work Kare” facility and came under the care of Dr. Tony Alleman. At this time, Watson filled out a medical history form and reported no history of back pain. Dr. Alleman diagnosed Watson with a contusion to the left chest wall and strained left wrist and knee and released her to sedentary work for six to eight days. She returned to Work Kare on February 5, 1999, with complaints of left knee pain, wrist numbness and pain “everywhere” in her legs. Chest x-rays from that date revealed “normal left ribs.” Watson was seen that day by Dr. James Harris who diagnosed contusions to her left chest and knee and a possible sprain of her left wrist and again released her to sedentary work only. She had similar complaints of pain when she revisited Work Kare on February 8,1999.

|3On February 15, 1999, Watson reported to Dr. Alleman that her symptoms had improved since the last visit, but she complained of sharp pain shooting through her legs after standing on concrete for long periods. Again, there was no mention of back pain. Dr. Alleman maintained his recommendation for sedentary work. On February 17, 1999, Watson went to Good Shepherd Medical Center in Longview, Texas, on referral by Dr. Alleman. Records show that she only complained of pain in her left knee and wrist. On February 22, 1999, Watson saw Dr. Alle-man again. His records reflect that Watson said she was much improved with her left knee and wrist problem. Dr. Alleman released her to light work.

On March 1, 1999, Watson had a followup visit with Dr. Alleman and reported that her left knee “has come a long way,” but was still sore. The doctor noted that Watson’s left wrist had resolved. Dr. Alle-man recommended physical therapy for Watson’s knee. The doctor’s progress note from a March 8, 1999 visit states that Watson reported that her knee was “a lot better.”

Watson returned to work without restrictions on March 15, 1999; and, on that day, when she was climbing down from her “fork truck,” she later said she had “sharp pains ... all the way up from my feet all the way up to my ankles, my knees, and even my back.” Watson visited Dr. Alle-man on March 22, 1999, and his report indicates that Watson complained of pain “from below knee down to foot on both legs.” (Emphasis in original.) There was no mention of back pain. Dr. Alleman’s report from Watson’s 14next visit, March 29, 1999, reflects complaints of aching pain in both legs between her knees and her ankles and also states that she “was not complaining of pain in her right leg until the past two weeks.” Watson was released to regular duty, but Dr. Alleman referred her to Dr. William Fox, an orthopedic surgeon, “as her physical findings and her previous injury are inconsistent.” Dr. Alleman mentioned in his deposition that, during his treatment of Watson, she never complained of pain in her back.

On March 31, 1999, Watson saw Dr. Fox for the first time for her complaints of pain in the lower portions of both legs. The report from this visit states that Watson told Dr. Fox that this pain commenced on March 15, 1999, after the “fork truck” incident. Dr. Fox ordered MRI studies of Watson’s legs to confirm whether she had bone bruises or contusions and he ordered that she not work until the MRI was conducted. After the MRI was completed, Dr. Fox reported on April 23, 1999, that the scan was “suggestive of a marrow-replacing process such as lymphoma, mye-loma and metastatic disease.” At his deposition, Dr. Fox explained that these processes were not in any way related to trauma.

On April 26, 1999, Dr. Fox completed a form that appears to be part of a health and accident insurance claim. Dr. Fox indicated on this form that Watson had not recovered sufficiently to return to work and estimated that she could return to work on June 1, 1999. Dr. Fox referred Watson to her family physician, Dr. James Sawyer, for further testing. On May 7, 1999, Watson saw Dr. Sawyer and his records reveal that a bone scan (conducted on recommendation of Dr. Fox) was “normal.”

IfiOn May 20, 1999, Watson saw Dr. Fox again and, for the first time, complained of lower back pain. Dr. Fox recommended a lumbar MRI. On June 10, 1999, Watson had a lumbar MRI which revealed, among other things, “moderate sized central L5-S1 disc herniation with ... nerve root impingement” and other degenerative changes. On June 18, 1999, Dr. Fox again indicated on an insurance claim form that Watson was not healthy enough to return to work and estimated that she could work again on August 1, 1999. On June 25, 1999, Watson saw Dr. Tom Chow, a micro-neurosurgeon, who evaluated her MRI and recommended a course of pain management with Dr. Aaron Calodney, an anesthesiologist with a specialty in pain management.

Watson first saw Dr. Calodney on August 3, 1999. He observed that she walked with a painful gait, that she had some weakness in her lower extremities and had a limited lumbar range of motion. Dr. Calodney recommended an epidural steroid injection followed by physical therapy. Watson also began taking pain medication, including oxycontin. Watson was evaluated by Dr. Gordon Mead on August 24, 1999, who reviewed her lumbar MRI at the same time. Dr. Mead observed that she had a bulging L5 lumbar disc, but that “it does not appear to have any nerve root impingement that I can tell.” After the injection and some therapy, Watson’s problem improved, but not to the degree that Dr. Calodney had hoped.

Watson eventually filed a claim for workers’ compensation benefits with GM. Although, apparently, Watson received one workers’ | ^compensation indemnity benefit payment in February or March 1999, GM denied her claim for workers’ compensation benefits. Watson then filed a disputed claim for workers’ compensation benefits with the Office, of Workers’ Compensation on December 1, 1999, listing “low back” as the part of her body that was injured.

Watson later underwent a discography which revealed internal disc disruption of her two bottom discs, and it was Dr. Cal-odney’s impression that this disruption was causing Watson’s pain. A second steroid injection did not provide lasting relief, so Watson had a surgical procedure on her back on December 11, 2000, known as IDET, or intradiskal electrothermal an-nuloplasty. After this surgery, Watson’s pain was reduced to the point that she could discontinue her use of oxycontin and her activity level significantly improved. At his deposition, Dr. Calodney related that “within, perhaps, the next six months she should probably be able to return to some form of work.” Watson’s pain, however, returned about two weeks prior to the trial of this matter.

At his deposition, Dr. Calodney testified that he believed, based on the history he obtained from Watson, that her lumbar problems “continue to be and have been” related to her January 30, 1999 fall at work. He specifically referred to Watson’s complaints of pain to her legs “everywhere” on February 5, 1999, and stated that this pain “can be consistent” with a lumbar disc derangement.

Dr. Alleman stated in his deposition that, although it was “possible” that pain in both legs could be an indication of disc derangement, the [^“tightness” that Watson reported to him in February 1999 was not usually a symptom of lumbar disc problems. He also testified that, with a lower back disc herniation:

[U]sually there is a single incident that kind of initiates things and then you get symptoms, and the symptoms may not be the first day ... But usually they are within a week to ten days of the initial injury.

In addition, Dr. Fox explained in his deposition that “the sooner those symptoms appear after the accident, the more likely it is to be due to the accident.” He testified that one would expect symptoms of a disc herniation like Watson’s to appear within the first two weeks following the trauma. Dr. Fox, therefore, concluded that Watson’s January 30, 1999 accident was not the cause of her lower back problem because her complaints of lower back pain and radiation down the legs came “a couple of months” after the accident. He did state, however, that, if the numbness and tingling in Watson’s February 1, 1999 medical record referred to her knee, then this could be consistent with a lumbar disc derangement. Dr. Fox also said that Watson’s other pain, such as the sharp pains in her legs she reported on February 15, 1999, could be consistent with disc derangement. He later explained, however, that he would expect symptoms in the patient’s back to appear with a disc injury and that Watson did not report any such symptoms at the time of her injury.

Watson’s records from GM indicate that she had previously made complaints of lower back pain as early as 1982 and that she had a previous and extensive history of back problems. These records include a July 19, 1982 report from orthopedist Dr. A.E. Dean referring to an x-ray of her Islumbar spine that “shows some changes at the L5-S1 disc space with some spurring anteriorly and narrowing of this disc space.” Dr. Dean diagnosed her then with degenerative lumbrosacral discs with acute sprain. Another physician, Dr. D.F. Over-dyke, examined an x-ray of her cervical spine on November 29, 1982, and stated that the x-ray was “negative.” She had further complaints of back pain at GM in 1986, 1987 and 1989. Watson also had an auto accident in 1998, from which she reported neck pain, and a trip and fall incident at work in 1995 that caused her pain in both knees. Dr. Calodney testified in his deposition that it was his understanding that Watson had not had any symptoms “referable” to her low back.

A trial was held on January 3, 2002, at which time Watson testified to her alleged back injury. The Workers’ Compensation Judge CWCJ”) found that Watson failed to prove that her back injury was related to the January 30, 1999 accident and awarded her no workers’ compensation benefits for any of her injuries. From the judgment denying her claim for benefits, Watson now appeals, raising the following assignments of error (verbatim):

1. The trial court committed manifest error when it concluded that Ms. Watson’s lumbar disc injury was not related to the January 30, 1999 fall.
2. Even if the trial court was correct in holding that Ms. Watson’s lumbar disc injury was not related to the January 30, 1999 fall, the trial court erred in failing to grant plaintiff some workers’ compensation benefits for the period of disability for the injuries that were undeniably related to the January 30, 1999 fall.

^DISCUSSION

Workers’ Compensation Benefits for Watson’s Alleged Back Injury

In the first assignment of error, Watson argues that her back injury was caused by her fall on January 30, 1999; and, therefore, the WCJ was clearly wrong in refusing to award benefits for this injury. In a workers’ compensation action, the plaintiff bears the burden of establishing a causal connection between the disability and the accident by a reasonable preponderance of the evidence. Quinones v. U.S. Fidelity and Guaranty Co., 93-1648 (La.1/14/94), 630 So.2d 1303; Burroughs v. LCR-M, 34,082 (La.App.2d Cir.3/2/01), 781 So.2d 877. In determining whether the worker has discharged the burden of proof, the trier of fact should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent circumstances casting suspicion on the reliability of his testimony. Nolan v. Rawls Farming Company, 35,086 (La.App.2d Cir.10/31/01), 801 So.2d 524, writ denied, 02-0001 (La.3/15/02), 811 So.2d 910. The injured employee’s testimony alone may be enough to meet the burden of proof as long as no other evidence contradicts the employee’s version of the accident and the testimony is corroborated by circumstances following the alleged incident. Burroughs, supra.

Factual findings in workers’ compensation cases are- subject to the manifest error/clearly wrong standard of review. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 680 So.2d 706; Corley v. Wal-Mart Stores, Inc., 31,917 (La.App.2d Cir.5/7/99), 737 So.2d 204, writ denied, 99-2002 (La.10/15/99), 748 So.2d 1151. In applying this 11flstandard, the appellate court must not determine whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993); Nolan, supra. If the fact finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if it would have weighed the evidence differently as the trier of fact. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Nolan, supra. Moreover, if there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Buxton v. Sunland Construction, 34,995 (La.App.2d Cir.8/22/01), 793 So.2d 526.

The fact finder’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Bruno v. Herbert International, Inc., 593 So.2d 357 (La.1992). The manifest error rule extends to credibility determinations based upon conflicting medical testimony. Tranchant v. Environmental Monitoring Service, Inc., 00-1160 (La.App. 5th Cir.12/13/00), 777 So.2d 516.

In the instant case, the medical evidence casts suspicion on the alleged causal link between Watson’s January 30, 1999 accident and her back injury. Although Drs. Alleman and Fox conceded that some of Watson’s leg pain symptoms could be symptoms of, or related to, a back Ininjury, the medical records show no complaints of back pain near in time to the accident. Dr. Fox specifically said that he did not believe that Watson’s January 30, 1999 accident was the cause of the disc problem in her back because her complaints of lower back pain came months after the accident, which is inconsistent with an injury to the disc. Moreover, in reviewing the medical records, we find that, throughout the time Watson was seeing various doctors, she did not complain of back pain. Even though medical records from as early as 1982 indicate that Watson had degenerative changes in her lower back and that she had several instances of back pain in the intervening years that were sufficiently severe to report to her employer, she did not report her alleged back pain to any of her doctors this time.

The most specific evidence which goes against finding causation between the accident and the back injury came from Dr. Fox’s deposition testimony, where he stated that Watson’s back problem was not related to the 1999 accident because she did not report back pain within two weeks of the accident. The first documented complaint of lower back pain was made approximately four months after the accident, and the claimant’s testimony does not adequately explain this delay. Watson has not met her burden of establishing a causal link between the accident and the back injury. The WCJ’s finding that Watson’s back injury was not caused by the January 30, 1999 accident is a reasonable conclusion based upon the record in its entirety. We find that the WCJ did not commit manifest error; and, therefore, Watson’s first assignment of error is without merit.

| ^Remaining Benefits Not Addressed by the WCJ

On appeal, Watson also argues that the WCJ erred in not awarding her any benefits whatsoever, including benefits for the time she was unable to work until April 28, 1999, when she had recovered sufficiently from her knee, wrist and rib injuries to return to work. An injured employee is entitled to receive benefits for an injury that arises out of and in the course of her employment. La. R.S. 23:1031. La. R.S. 23:1311 provides:

A. The petition required under Section 1310.3 shall set forth:
(1) The names and addresses of the parties.
(2) A statement of the time, place, nature, and cause of the injury, or such fairly equivalent information as will put the employer on notice with respect to the identity of the parties.
(3) The specific compensation benefit which is due but has not been paid or is not being provided.

Watson filled out the required form, Form 1008, demanding payment from GM for indemnity benefits, medical expenses/mileage and penalties and attorney fees. On the form, Watson answered the “Part of Body Injured” question by only answering that she had a low back injury. At the trial of this matter, the WCJ stated as an issue “whether claimant is entitled to indemnity benefits, specifically temporary total disability or supplemental earnings benefits from February 1st, 1999, through March 15th, 1999, and temporary total disability benefits from March 16th 1999 through January 3rd of 2002, the current date.” We do not believe that Watson’s indication on Form 1008 that she sustained a “low back” injury limits her |iaclaim for benefits only to that particular injury. Indeed, the blank on Form 1008 for filling in injuries is very small.

Louisiana workers’ compensation law is to be liberally construed in favor of coverage. Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). See also Gary v. D.E. Page Construction, 93-1266 (La.App. 3d Cir.5/4/94), 640 So.2d 523. The record shows that Watson missed several weeks of work due to injuries that were well-documented and that her symptoms of these injuries commenced immediately after her January 30, 1999 accident. Watson is entitled to benefits for the injuries actually sustained and proven. This matter is, therefore, remanded for a determination and award of such benefits.

CONCLUSION

For the foregoing reasons, the judgment of the WCJ is affirmed insofar as it rejects Lola Foy-Watson’s claim for compensation benefits for injury to and treatment of her back. The judgment of the WCJ is reversed insofar as it denies benefits for injuries suffered by Lola Foy-Watson pri- or to April 23, 1999, through which time she was unable to work due to injuries sustained in the work-related fall on January 30, 1999; and, therefore, this matter is remanded to the WCJ for a determination of the amount and type of benefits owed to her for these injuries. Costs of this appeal are divided equally between General Motors Corporation and Lela Foy-Watson.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.

      . Watson would later testify that she told the security guard on duty that her back was hurting, but there is no GM documentation from that date of any back injury.

      . Watson has not returned to work at GM since March 1999.

      . Form 1008 is the form used for "Disputed Claim For Compensation.”


source: Caselaw Access Project

author: | PEATROSS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Ontario SAMUELS, Appellant.
    No. 37,099-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.
    Louisiana Appellate Project by Peggy J. Sullivan, Monroe, Indigent Defender Board by William Rick Warren, for Appellant.
    Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, Louis Charles Minifield, C. Sherburne Sentell, III, Assistant District Attorneys, for Ap-pellee.
    Before CARAWAY, PEATROSS & MOORE, JJ.
   | PEATROSS, J.

Defendant, Ontario Samuels, was charged with two counts of battery of a corrections officer, violations of La. R.S. 14:34.5(B)(2) punishable by a fine of not more than $1,000, and imprisonment with or without hard labor for no less than one to no more than five years, to be served without benefit of probation, parole or suspension of sentence. Defendant originally pled not guilty to both counts.

On September 23, 2002, Defendant, represented by counsel, appeared in open court and announced a plea agreement, wherein Defendant agreed to withdraw his prior pleas of not guilty and to plead guilty to both counts, with five year sentences for each count. The two five-year sentences were to run concurrent with each other, but consecutive to any other sentence(s) Defendant may have been serving. In exchange, the State agreed not to file a multiple offender bill against Defendant.

The trial court fully advised Defendant of his constitutional rights and ascertained that Defendant was waiving these rights prior to accepting his guilty plea. Defendant waived sentencing delays, and the trial court sentenced Defendant to the agreed-upon sentence of five years hard labor for each count, to run concurrent with each other, but consecutive to any other sentence that the defendant was serving.

Appellate defense counsel filed a brief with this court seeking to withdraw as counsel of record and notifying this court that, after a conscientious and thorough review of the record, she found no non-frivolous issues to raise on appeal, nor any trial court ruling which arguably supports the appeal. This court does not require counsel to assign or brief ^errors which are considered frivolous. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Lofton v. Whitley, 905 F.2d 885 (5th Cir.1990); State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990).

On December 23, 2002, this court issued an order holding the motion to withdraw in abeyance and notifying Defendant that he may file a brief within 30 days of the order. The 30-day period has lapsed and Defendant has not requested the record and has made no filing with this court.

Defendant’s counsel has complied with the requirements of the above-cited cases to posture Defendant’s appeal for our independent review of the record which contains the trial court minutes, the bill of information, Defendant’s motion for discovery and the transcripts of Defendant’s guilty plea and sentencing. We have examined the record for any arguable substantive or procedural infirmity in the proceedings and for errors patent. Our independent review disclosed no issues or rulings which arguably support an appeal. The trial court transcripts reveal that there was a factual basis for the guilty plea, that Defendant was properly advised of his rights and that he agreed to concurrent sentences of five years. Where a specific sentence or sentence cap has been agreed to as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive and there is no need for the trial judge to give reasons for the sentence as required by La. C.Cr.P. art. 894.1. State v. Bonnett, 535 So.2d 535 (La.App. 3d Cir.1988), writ denied, 541 So.2d 869 (La.1989).

13As previously stated, and as mandated by Anders, supra, we have also examined the record for errors patent. Our review reveals that the minutes and sentencing transcript do not show that Defendant was given credit for time served. Failure to give credit for time served, which is mandated by La.C.Cr.P. art. 880, is error patent and may be corrected by an appellate court under art. 882 without remanding for re-sentencing. State v. Sweet, 575 So.2d 937 (La.App. 2d Cir.1991); State v. Trahan, 520 So.2d 789 (La.App. 3d Cir. 1987), writ denied, 532 So.2d 172 (La.1988).

In the case sub judice, the offense occurred while Defendant was incarcerated on another charge. Defendant is entitled to credit for time served, subsequent to the commission of the instant offense, to the extent that the time served has not been credited against the sentence for any other offense. La.C.Cr.P. art. 882; State v. Jefferson, 33,333 (La.App.2d Cir.5/10/00), 759 So.2d 1016, writ denied, 00-1945 (La.9/21/01), 797 So.2d 59; State v. Jackson, 582 So.2d 915 (La.App. 2d Cir. 1991). We hereby amend Defendant’s sentence accordingly.

CONCLUSION

For the foregoing reasons, the motion to withdraw is granted and Defendant’s convictions of battery of a corrections officer are affirmed. Defendant’s sentence is amended to reflect credit for time served. In all other respects, Defendant’s sentences are affirmed.

CONVICTIONS AFFIRMED; SENTENCES AMENDED TO REFLECT CREDIT FOR TIME SERVED; IN ALL OTHER RESPECTS, SENTENCES AFFIRMED.


author: I ¶MOORE, J.

text:
    STATE of Louisiana, Appellee, v. Antoine E. WATSON, Appellant.
    No. 37,090-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.
    John Cucci, Jr., for Appellant.
    Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, Robert Randall Smith, Spencer Hays, II, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   I ¶MOORE, J.

The defendant, Antoine Enrico Watson (“Watson”), and his wife, Latrisha Watson, were charged by joint bill of information with one count each of possession with the intent to distribute Schedule III and IV controlled dangerous substances. After the district court denied his motion to suppress, Watson pled guilty as charged in exchange for the state’s agreement to nol-pros all charges against his wife. The district court sentenced him to five years at hard labor on each count, to run consecutively. Watson now appeals. For the reasons expressed, we affirm.

A confidential informant advised Bossier City police that a man called Rico was periodically driving from the Houston area to Bossier City to deliver large quantities of hydroeodone and Valium, and sometimes marijuana. Rico usually drove a van or a rental car and was accompanied by a woman. On August 10, 2001, the confidential informant phoned Rico and arranged to buy 400 Lortab and 100 Valium tablets; Rico agreed to meet him at the parking lot of Nicky’s Mexican Restaurant on Airline Drive. At 7:46 that evening a Ford Expedition pulled into Nicky’s parking lot; the driver exited and walked toward the confidential informant’s car. Waiting police officers detained Rico and conducted a pat-down search for their safety. In his right front pocket they found a bag containing 400 Lortab and 100 Valium tablets. They arrested Rico, whose real name was Antoine Enrico Watson. They then searched the rented Expedition, where Watson’s wife was sitting. They found 1000 Valium, 937 Lortab and 300 Soma tablets, in numerous smaller bags. Officers then arrested Mrs. Watson, who had another 104 Valium tablets in her purse. The seized contraband tested ^positive for hydroco-done and diazepam, Schedule III and IV controlled dangerous substances.

Watson and his wife filed a motion to suppress all the controlled dangerous substance seized in the incident. The district court denied this motion after a hearing. Defense counsel then asked for a recess to discuss a plea bargain. After the recess, the prosecutor announced the plea bargain and defense counsel objected to the court’s ruling on the motion to suppress. However, Watson then entered his guilty plea with no reservation of rights to appeal the ruling on the motion to suppress. After a thorough Boykin examination, the court accepted the guilty plea and the prosecutor nol-prossed the charges against Mrs. Watson. The district court later sentenced Watson to five years at hard labor on each count, to run consecutively.

Watson now appeals, urging by one assignment of error that the district court erred in denying his motion to “quash” the evidence as the frisk was unlawful. The thrust of the argument is that the informant’s uncorroborated statements did not provide a reasonable suspicion of criminal conduct to justify stopping and frisking Watson. The state responds that police officers were present when the informant phoned Watson and planned the drug deal; once Watson arrived at the designated location and the informant recognized him, they had probable cause to arrest and reasonable suspicion to pat him down.

A plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea. State v. Crosby, 338 So.2d 584 (La.1976). When the defendant, at the time of entering a guilty plea, expressly | .^stipulates that he does not waive his right to the review of a non-jurisdictional pre-plea ruling, the appellate court will review that ruling. State v. Moore, 420 So.2d 1099 (La.1982).

As noted, defense counsel objected to the ruling on the motion to suppress but did not expressly reserve the right to have the denial of the motion reviewed on appeal. In the Boykin colloquy he unconditionally admitted his guilt and never once mentioned any intent to appeal the motion to suppress. Under the circumstances, the issue is not preserved for review. State v. Moore, supra; State v. King, 99-1348 (La.App. 5 Cir. 5/17/00), 761 So.2d 791, unit denied, 00-1824 (La.6/29/00), 794 So.2d 822; State v. Lawson, 95-1604 (La.App. 1 Cir. 12/20/96), 684 So.2d 1150, writ denied, 97-0191 (La.6/13/97), 695 So.2d 986. The assignment of error therefore lacks merit.

We have reviewed the entire record and find nothing we consider to be error patent. La.C.Cr.P. art. 920(2). For these reasons, Watson’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


author: | .PER CURIAM.

text:
    STATE of Louisiana, Appellee, v. Reginald MOORE, Appellant.
    No. 37,046-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.
    Peggy Sullivan, Louisiana Appellate Project, Monroe, for Appellant.
    Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Stephen Sylvester, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS, and KOSTELKA (Pro Tempore), JJ.
   | .PER CURIAM.

The defendant, Reginald Moore, pled guilty to one count of vehicular homicide. He was sentenced to serve 20 years at hard labor, with five years of the hard labor sentence suspended. Five years of the sentence were ordered to be served without benefit of parole, probation, or suspension of sentence. Five years of supervised probation were ordered following incarceration. A fine and restitution were also ordered. The defendant now appeals, arguing that the sentence imposed is excessive. We once again vacate the sentence and remand for resentencing.

FACTS

On August 5, 1999, the defendant, while driving a vehicle in Monroe, Louisiana, pulled out to pass a car. Another vehicle was approaching in the opposite direction. The defendant swerved into the oncoming car, killing the 20 year old passenger and injuring the driver. The defendant’s blood alcohol test showed a level of .22 at the time of the accident.

The defendant was arrested and charged with one count of first degree vehicular injuring and one count of vehicular homicide. The defendant entered a plea of guilty to vehicular homicide, and pursuant to a plea bargain agreement, the charge of first degree vehicular injuring was dismissed.

The trial court originally sentenced the defendant to 20 years at hard labor, five of which were to be suspended. The court ordered a period of supervisory probation “not to exceed five years” and ordered that “at least five years of this sentence shall be without benefit of parole, probation, or suspension of sentence.”

|2We previously affirmed the defendant’s conviction in an unpublished opinion, but remanded for resentencing because the original sentence imposed was indeterminate. State v. Moore, 35,935 (La.App.2d Cir.5/08/02), 818 So.2d 323. We also noted that the penalty for vehicular homicide under La. R.S. 14:32.1 required the imposition of a fine of “not less than two thousand dollars nor more than fifteen thousand dollars” in addition to a term of imprisonment. Additionally, the trial court failed to advise the defendant of the delays for application for post-conviction relief as required by La. C. Cr. P. art. 930.8.

On July 18, 2002, the trial court resen-tenced the defendant. On remand, he was ordered to serve 20 years at hard labor, five years of which were suspended. Five years of the hard labor sentence were ordered to be served without benefit of parole, probation, or suspension of sentence. Following incarceration, the defendant was to be placed on five years supervised probation. Special conditions of probation included participation in court-approved substance abuse and driver improvement programs. A fine of $2,000.00 was imposed and the defendant was ordered to pay restitution to the victim’s family in the amount of $13,191.88. The defendant was informed of the time limits for applying for postconviction relief. The record shows that the defendant was given credit for time served. Although the defendant failed to move for reconsideration of sentence at both the original sentencing and resentencing, he now argues that the sentence imposed is excessive. We note that in both the original | asentencing and the sentencing on remand, the court applied the incorrect penalty.

DISCUSSION

This offense occurred on August 5, 1999. At that time, La. R.S. 14:32.1 provided the following penalty for vehicular homicide:

Whoever commits the crime of vehicular homicide shall be fined not less than two thousand dollars nor more than fifteen thousand dollars and shall be imprisoned with or without hard labor for not less than two years nor more than fifteen years. At least one year of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court shall require the offender to participate in a court-approved substance abuse program or a court-approved driver improvement program, or both. All driver improvement courses required under this Section shall include instruction on railroad grade crossing safety. [Emphasis supplied.]

La. R.S. 14:32.1 was amended by Acts 1999, No. 1103, to increase the maximum incarceration exposure to twenty years. The amendment became effective August 15, 1999, ten days after the commission of the present offense.

The law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. A defendant must be sentenced according to the provisions in effect at the time of the commission of the offense. State v. Sugasti, 2001-3407 (La.6/21/02), 820 So.2d 518. The imposition of a harsher sentence than that prescribed at the time the offense was committed constitutes a violation of the ex post facto clauses of both the state and federal constitutions. State v. Taylor, 34,823 (La. App.2d Cir.7/11/01), 793 So.2d 367.

| .Accordingly, we vacate the present sentence and remand for resentencing in accordance with the provisions in effect at the time of the commission of the offense, pretermitting any discussion of the defendant’s claim of excessive sentence.

CONCLUSION

For the reasons stated above, the sentence of the defendant, Reginald Moore, is vacated and the matter is remanded for resentencing consistent with this opinion.

SENTENCE VACATED; REMANDED FOR RESENTENCING.


author: I,CARAWAY, J.

text:
    STATE of Louisiana, Appellee, v. Johnny Dale BARNARD, Appellant.
    No. 37,032-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      James E. Beal, Louisiana Appellate Project, for Appellant.
    Richard Ieyoub, Attorney General, Walter E. May, Jr., District Attorney, Jonathan M. Stewart, Assistant District Attorney, for Appellee.
    Before CARAWAY, PEATROSS and MOORE, JJ.
   I,CARAWAY, J.

The defendant in this case was stopped for a minor traffic violation and determined during the stop to be intoxicated. He pled guilty to one count of driving while intoxicated, fourth offense, La. R.S. 14:98(E), preserving his right to appeal the denial of a motion to suppress. After the trial court sentenced him to ten years at hard labor, with' all but sixty days of the sentence suspended, and a $5,000 fine, the defendant appealed his conviction. We affirm.

Facts

Shortly after midnight on March 4, 2002, Ringgold Police Officer Jeffrey Todd Dean observed Barnard driving northbound on Hill Street in Ringgold, Louisiana, with a female passenger. Officer Dean suspected the passenger was Danielle Matchum, who had an outstanding warrant for her arrest. Officer Dean watched as the defendant, Johnny Dale Barnard, stopped his vehicle in the middle of his lane of traffic, thereby blocking the right of way. Officer Dean stated that after approximately one minute, the passenger got out of the car and went into a trailer home. Officer Dean was then able to identify the passenger as Matchum.

The Hill Street location was a high crime, dimly lit area. After letting his passenger out, Barnard proceeded north on Hill Street, a dead end street with no center line, and turned his vehicle around. Officer Dean recalled no other traffic on the street at that time.

| ^Officer Dean followed Barnard in his patrol vehicle, eventually stopping him about a quarter of a mile down Hill Street in a safer, fully fit area. Officer Dean stopped Barnard “to warn him, to talk to him about, you know, not parking in the road, and to ask him not to do it again.” Officer Dean testified that he did not intend to issue a citation. Officer Dean and Barnard each exited their vehicles and met between them. When Officer Dean approached Barnard, he noticed the strong odor of alcohol about Barnard’s body and on his breath. Barnard also appeared unsteady because he was swaying slowly back and forth. Officer Dean asked Barnard if he had been drinking, but did not recall his initial response. Officer Dean called for backup and Bienville Parish Sheriffs Deputy Anthony Toms arrived. Officer Dean administered field sobriety tests to Barnard while Deputy Toms videotaped the test. When Barnard performed poorly on the tests, Officer Dean arrested him. A subsequent breath test, administered at the sheriffs department, registered Barnard’s blood alcohol level at .183 grams percent.

At the hearing on the motion to suppress, Officer Dean testified that he had previously ticketed two other persons for stopping in the middle of Hill Street to let passengers out. He stated that he considers various factors before deciding to ticket someone or warn them for stopping in the middle of the road. Officer Dean claimed that Matchum’s outstanding warrant did not influence his decision to stop Barnard, although he may have stopped the car because Matchum had been a passenger. He also admitted that he Umay have talked to Barnard about Barnard getting Matchum from the trailer and bringing her to Officer Dean.

Defense witness, Ringgold Police Chief Jack Bussey, testified that people commonly parked on the side of Hill Street due to the narrow shoulder. In that situation, if there was no other traffic, he would not expect an officer to make a traffic stop. Nevertheless, Chief Bussey testified that drivers should not stop in the middle of the road, and ordinarily would be stopped by an officer if they did. Chief Bussey confirmed that Barnard stopped in a location which was not well lit and in a high crime area. Chief Bussey agreed that he too would probably have made a “slow pursuit” and waited until reaching a safer area before stopping Barnard.

Jennifer Barnard, the defendant’s sister, testified that Officer Dean offered to release Barnard if she brought Matchum to the station. Her boyfriend, Roderick Holman, testified that Officer Dean told him he stopped Barnard’s car because Matc-hum was a passenger.

Barnard filed a motion to suppress all evidence seized as a result of the stop, including all field sobriety and breath test results. After a hearing, the trial court orally denied the motion to suppress. Following his guilty plea, this appeal ensued.

Discussion

Barnard argues that Officer Dean stopped him without probable cause or a reasonable suspicion that he was committing, about to or had committed a crime. He claims no crime occurred because traffic was not impeded by his stopping on Hill Street. He also points out that vehicular ^traffic could still pass in the opposite lane of travel. Barnard contends that his traffic stop was merely an impermissible pretext to arrest Barnard’s passenger.

The Fourth Amendment to the United States Constitution and Article 1, § 5 of the Louisiana Constitution of 1974 prohibit unreasonable searches and seizures. A warrantless search is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 98 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Tatum, 466 So.2d 29 (La.1985); State v. Lain, 347 So.2d 167 (La.1977). The state bears the burden of proving one of these exceptions applies. La.C.Cr.P. art. 703(D); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Tatum, supra.

A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address and an explanation of his actions. La. C. Cr. P. art. 215.1. An officer may also, without a warrant, arrest a person when the person has committed an offense in his presence. When the arrest is for a misdemeanor, it must be made immediately or on close pursuit. See La.C.Cr.P. art. 213(1). It is also proper for an officer to compel or instruct a motorist to comply with the law. See La.C.Cr.P. art. 215.1(D).

As a general matter, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has | ¡-pccurred.” State v. Waters, 00-0356 (La.3/12/01), 780 So.2d 1053, citing Whren v. U.S., 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996) (citations omitted). The standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer. Whren, 517 U.S. at 813, 116 S.Ct. at 1774. This objective standard is indifferent to the relatively minor nature of a traffic violation. Although they may serve, and may often appear intended to serve, as the prelude to the investigation of a much more serious offense, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants. Id.

In Louisiana, a person is prohibited from operating or driving a motor vehicle upon the highways at such a slow speed as to impede the normal and reasonable movement of traffic except under certain special circumstances which may require lower speed. La. R.S. 32:64(B). Likewise, Louisiana law prohibits a person from wilfully obstructing the free, convenient and normal use of any public street, road or highway by impeding, hindering, stifling, retarding or restraining traffic or passage thereon. La. R.S. 14:100.1. Both crimes are misdemeanors. La. R.S. 32:57.

Officer Dean testified that he saw Barnard stop and obstruct public passage. This is sufficient to establish probable cause for a traffic violation. Barnard nevertheless argues that since no traffic was actually impeded, no crime was committed. Such argument concerning the interpretation of the criminal statute, however, even if correct, does not detract from the existence of probable cause for arrest. While we do not interpret the traffic |fistatute so narrowly, the evidence indicates that Officer Dean had probable cause to make the traffic stop in this case.

Despite the relatively minor nature of the offense, such a traffic violation gave Officer Dean an objectively reasonable basis for stopping Barnard’s vehicle for the purpose of issuing a citation or instructing or warning him to comply with the law. Questions concerning Officer Dean’s subjective beliefs about Matchum or why he waited momentarily before stopping Barnard are not relevant to this Fourth Amendment analysis. Waters, supra, citing Whren, supra. Because Officer Dean acted lawfully in stopping Barnard to engage him in conversation and warn him regarding the traffic violation, the “suspicion of additional criminal activity” which materialized while he conducted the stop appropriately led to admissible evidence of Barnard’s intoxication. La.C.Cr.P. art. 215.1(D).

A trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Normandin, 32,927 (La.App.2d Cir.12/22/99), 750 So.2d 321, 324, writ denied, 00-0202 (La.9/29/00), 769 So.2d 550; State v. Williams, 98-1006 (La.App. 5th Cir.3/30/99), 735 So.2d 62, 73, writ denied, 99-1077 (La.9/24/99), 747 So.2d 1118. In this matter, we can find no abuse of discretion in the trial court’s denial of Barnard’s motion to suppress.

Barnard’s conviction and sentence are affirmed.

AFFIRMED.

      . The plea was obtained in accordance with State v. Crosby, 338 So.2d 584 (La.1976).


author: h CARAWAY, J.

text:
    Crystal Rogers GEE, Plaintiff-Appellant, v. AAA LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 37,201-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.
    Sir Clyde Lain, II, Monroe, for Appellant.
    Adams and Reese, LLP, by Richard B. Eason, II, Frederick T. Greschner, Jr., Baton Rouge, for Appellee.
    Before CARAWAY, PEATROSS and MOORE, JJ.
   h CARAWAY, J.

Three days after submitting an application for life insurance to defendant, the applicant was hospitalized for hypertension, a condition from which she had not previously suffered. The application form requested the disclosure of any information concerning a prior history of illnesses, including hypertension. The applicant was not asked by defendant to submit to a physical examination before the issuance of the life insurance policy six weeks later. The applicant died one year after completing her application, and the defendant refused to honor the policy. The defendant claims that if it had been advised of the applicant’s hypertension, the policy would not have been issued. Upon defendant’s motion for summary judgment, the trial court dismissed this suit by the policy’s beneficiary. Finding genuine issues of material fact, we reverse and remand.

Facts

On September 9, 1999, Patricia H. Rogers (“Rogers”), age 46, completed a Member Application for Group Term Life Insurance underwritten by AAA Life Insurance Company (“AAA”). The Member Application was addressed to Rogers’ daughter, C.K. Rogers. The application was date-stamped as received by AAA on September 13, 1999, and thereafter, AAA issued its Group Insurance Certificate (“Certificate”) naming Patricia Rogers as an insured under Group Policy LTL-97(6/99). The Certificate Effective Date was October 28, 1999.

I ¡/The application contained a section concerning the applicant’s pre-existing health conditions and personal history which started out “Member: Please answer these questions ...”

1. In the past 20 years have you been treated for or told by a physician that you have or had heart disease, chest pains, high blood pressure, ul-cerative colitis, kidney disorder, diabetes, any mental or nervous disorder, alcoholism, lung disorder, cancer, or tumors?

Rogers answered this question in the negative by marking an “x” in the box beneath the “No” column. Nevertheless, three days later Rogers was hospitalized because of high blood pressure.

The application for group life insurance coverage did not require that applicants undergo a physical examination, but by signing the application, Rogers authorized the release of medical information and medical records to AAA. The following statement appeared immediately above the signature line where Rogers signed the application:

I understand that the coverage will take effect on the Effective Date shown on the Certificate of Insurance, provided the first premium has been paid and there has been no change in my insura-bility since the date of the application.

The application provided no further explanation of the meaning of “insurability.”

Upon its issuance, the Certificate provided that it was the “legal contract between the Certificate holder and AAA Life Insurance Company.” The definitions portion of the Certificate states that “Evidence of Insurability means proof satisfactory to Us that an Insured is an acceptable risk under the Group Policy.” The General Provisions portion of the policy contained the following incontestability clause:

laExcept for non-payment of premiums, We will not contest the validity of Your insurance after it has been in force for a period of two (2) years from the date of issue, during Your lifetime. No statement made by You on the application will be used to contest a claim unless:
• Your death occurs within two (2) years of the Certificate date of issue;
• Any answer, representation or acknowledgment made by You on the application for insurance was not true and/or complete; and
• If We had known of the truth, We would not have issued the Certifícate in its present form as to the amount of insurance and/or the premium rate.

Rogers died on September 8, 2000. Her death certificate showed that the immediate cause of death was intracranial hemorrhage, secondary to anteroseptal myocardial infarction, the underlying causes of which were described as coronary artery disease and brain death.

Thereafter, on May 23, 2001, AAA notified the policy beneficiary, Crystal Rogers Gee, that it had reviewed the medical records of Rogers’ hospitalization of September 12,1999. AAA’s letter advised:

We have referred this information to our Underwriting Department and have been advised that if we had been aware of the change of health, we would have declined this policy.
Accordingly, as the policy is contestable based on these misrepresentations, the Company has no choice but to rescind coverage under this policy and deny your claim.

Thereafter, Gee filed suit to recover the proceeds of the policy, alleging AAA’s arbitrary and capricious denial of the claim. AAA moved for summary judgment, arguing that the group life insurance policy under which Rogers was insured never took effect because of a change in her insurability prior to the effective date of the policy. To support its motion, AAA attached a copy of Rogers’ application, a copy of the Certificate, a ^partial copy of Dr. Richard Smith’s deposition, and the affidavit of Paul Reed, Assistant Vice President and Chief Underwriter for AAA.

Excerpts from Dr. Smith’s deposition indicate that Rogers went to St. Francis Medical Center on September 12, 1999, suffering from dizziness with nausea and vomiting. A history and physical were taken at that time, and Rogers’ blood pressure was 182/97. She had acute labyrinth-itis, causing her to have dizziness and nausea. Furthermore, according to Dr. Smith, she had “new onset hypertension since we had not had a history of hypertension in the past.” Later in the deposition, Dr. Smith confirmed that hypertension is the same as high blood pressure and a leading cause of strokes, and heart and kidney problems. He also indicated that individuals whose hypertension is controlled do not have an increased mortality rate, but individuals with uncontrolled hypertension have a higher mortality rate than the general public.

Reed’s affidavit stated that he had personal knowledge of AAA’s underwriting practices, including insurability determinations, and that under AAA’s underwriting practices, an onset of uncontrolled hypertension would constitute a change in the applicant’s insurability. The affidavit also stated that “had Patricia Rogers been suffering from uncontrolled hypertension on the date of her application” AAA would not have underwritten a life insurance policy on her.

Gee opposed AAA’s motion for summary judgment and filed a cross motion for summary judgment. Her attached affidavit stated that she was Rogers’ child, that she personally knew about her mother’s health, and that |Bshe recalled when her mother obtained a life insurance policy from AAA on September 9, 1999. According to Gee’s affidavit, her mother was then in sound health and was not suffering “from any disease or illness whatsoever,” including high blood pressure.

After hearing and argument, the trial court granted summary judgment in favor of AAA, and dismissed Gee’s demand. It is from this judgment that Gee appeals.

Discussion

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Hamdan v. State Farm Mut. Auto. Ins. Co., 36,883-CA (La.App.2d Cir.3/5/03), 839 So.2d 1017.

The evidence indicates that Rogers did not have a history of hypertension on September 9 when she answered the application’s question number 1 concerning her blood pressure. Therefore, the record shows that her answer to that question was truthful. Three days following her application, she was diagnosed with “new onset hypertension.” Although |fithe record is not entirely clear, it indicates that the application was submitted to AAA pri- or to Rogers’ September 12 hospitalization and diagnosis.

AAA argues that this new diagnosis represented a change in Rogers’ insurability which she was obligated to report to AAA prior to the policy’s issuance. Additionally, AAA asserts its right to make the determination concerning Rogers’ insura-bility and to void the policy because of Rogers’ misrepresentation.

By submitting her application and discussing matters concerning the state of her health, Rogers was offering to enter the contract of insurance with AAA. She could understand from the application that her offer was subject to AAA’s review of her health and medical records. AAA indicated its consent to the contract by issuance of the Certificate on October 28. Regarding error in the consent and formation of the contract, La. C.C. art.1949 provides:

Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.

Despite AAA’s assertions to the contrary, there was no express provision in the application that required Rogers to report any change in her health as it related to any of the medical conditions inquired about in the application. The application reflected that the determination of insurability was totally within AAA’s power, and an explanation of AAA’s measurement of an applicant’s insurability was not given. Thus, the application did not expressly make known to Rogers that any change in the ^status of her blood pressure would amount to a cause and material consideration that would prevent AAA from consenting to the life insurance contract.

In reaching this view about the policy application’s provisions, we distinguish this case from those cases cited by AAA which involved clauses in life insurance policies expressly requiring the insured to be in sound health on the date of issuance of the policy. Taylor v. Security Indus. Ins. Co., 454 So.2d 1260 (La.App. 2d Cir.1984); McClelland v. Security Indus. Ins. Co., 426 So.2d 665 (La.App. 1st Cir.1982). A provision informing the applicant that her good health must continue through the time of issuance of the policy is a much clearer expression of intent which does not compare to the undefined insurability concept upon which AAA now attempts to rely.

The remaining issue under Article 1949 is whether Rogers should have known that her newly developed hypertension was a cause under the contract which would prevent AAA from insuring her life. As to this issue, we find that genuine issues of material fact remain. The excerpts of the deposition of Dr. Smith are very brief. The condition of Rogers’ health between the time of her September 12 hospitalization and the October 28 contract date is not discussed. Her response to treatment of hypertension is not revealed. The question of what she should have known about her health and how that might relate to her pending application for life insurance is fact intensive and remains for trial. Accordingly, the grant of AAA’s motion for summary judgment is hereby reversed and the case remanded to |sthe trial court for further proceedings. Costs of appeal are assessed to appellee.

REVERSED AND REMANDED.


author: h GASKINS, J.

text:
    Wade SINGLETON, Plaintiff-Appellant, v. Mary Ann Booker, Ed BOOKER, J.D. Williams and Burns Forest Products, Defendants-Appellees.
    No. 37,198-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.
    Rehearing Denied June 19, 2003.
    Hudson, Potts & Bernstein, By D. Brian Allen, Brady D. King, II, Monroe, for Appellant.

      Bobby L. Culpepper, Jonesboro, for Ap-pellees.
    Before BROWN, GASKINS and MOORE, JJ.
   h GASKINS, J.

The plaintiff, Wade Singleton, appeals a trial court ruling granting summary judgment in favor of one of the defendants, Burns Forest Products, Inc. For the reasons set forth below, we reverse and remand.

FACTS

On March 3, 2000, Singleton filed suit against Mary Ann Booker, Ed Booker, J.D. Williams, and Burns Forest Products, Inc. (Burns). According to Singleton, in 1994 he purchased a 3.41-acre tract from Mary Ann Booker. He then excavated a half-acre pond on his property and stocked it with fish. Mary Ann Booker and her brother-in-law, Ed Booker, were alleged to be the owners of property adjacent to Singleton’s tract. The plaintiff claimed that in March 1999, Mary Ann Booker and/or Ed Booker caused timber to be removed from their property adjacent to Singleton’s property, and in the immediate area of his pond. Singleton asserted that' one or both of these defendants contracted either with Burns or Williams to conduct the logging operations. He urged that, as a result of those operations, the pond became contaminated with hydrocarbons which leaked from equipment owned and/or operated by Williams and/or Burns, damaging the pond and killing the fish. Singleton asserted that this resulted in loss of enjoyment of the pond.

Additionally, Singleton claimed that the logging operations resulted in serious erosion to the Bookers’ property, causing soil and water to flow into his pond. According to the plaintiff, this flow caused silt to accumulate in his pond, decreasing its depth, and preventing him from maintaining fish stock in the pond.

12J.D. Williams, the individual who actually cut the timber on the Bookers’ property, subsequently died and was dismissed from the lawsuit. Burns filed a motion for summary judgment alleging that there were no genuine issues of material fact with respect to any liability by Burns to the plaintiff. According to Burns, Williams was an independent contractor, not an employee. The company asserted that Williams was solely responsible for any damages incurred by the plaintiff.

In support of the motion for summary judgment, Burns attached the affidavit of Joe D. Burns, the president of Burns, who attested to his personal knowledge of the lawsuit and Burns’ lack of involvement. Joe Burns stated that Burns did not contract with either Ed Booker or Mary Ann Booker to conduct logging operations on their property; that Burns conducted no logging operations on their property; that Burns had no equipment owned or operated by it on the property at the time in question or at any other time; and that at no time was Williams an employee of Burns. He stated that Williams was an independent contractor; that Burns had nothing to do with buying any timber rights from the Bookers; ’that Burns did not negotiate with the landowners and did not set the terms of any logging job; and that Burns had no control as to the time, manner, quantity or price of any of the operations or negotiations by Williams with the landowners. He asserted that Williams used his own equipment to perform the timber cutting operation; that Williams was free to work in any manner that he chose; and that while some of the timber cut from the property | ¡¡apparently was purchased by Burns from Williams, the purchase was Burns’ sole involvement in the matter.

In opposition to the motion for summary-judgment, Singleton offered the deposition of Williams taken in April 2001. At his deposition, Williams was asked for whom he worked, and responded “I haul under Joe Burns.” Although Williams indicated that he used his own equipment, he hauled the logs he cut to the mill under Bums’ name and was covered under Burns’ insurance. Williams said that he had no insurance other than with Burns. When asked how long he had been working under Mr. Burns, he responded “About thirty-two years.” He indicated that Burns paid him by the thousand and by the cord, and that he did not work under anyone else. Williams stated that he was required to keep Burns informed as to where he was cutting. He also explained that he could not haul to the mill “straight under me,” but had to “haul under [a] middleman.”

Mary Ann Booker was Williams’ sister, and Williams was contacted by the Book-ers about cutting the timber from their property. Prior to beginning the timber cutting, Williams got “timbermen” employed by Burns to “flag” the property so that Williams would not cut timber from anyone else’s land. Williams’ deposition testimony indicated that he had to tell Burns whose timber he would be cutting and where he would be cutting prior to beginning a job so that the boundaries of the job could be marked.

Williams indicated that after Singleton began to “raise sand” after the timber had been cut, Burns sent employees to look at the property in question. Williams indicated Singleton did not contact Williams about the ^alleged problem, but instead “he had a lawyer to send a letter to the office and Mr. Joe [Burns] called me in, so we goes over there and see what was going on_” When asked if Singleton understood that Williams worked “under Mr. Burns,” Williams responded in the affirmative.

Furthermore, after the problem arose, Williams indicated that “Mr. Joe [Burns] had a boy to take the dozer to go over there and smooth out the road, and I bought the fertilizer and the grass.”

The motion for summary judgment was heard on August 19, 2002. On October 21, 2002, the trial court granted summary judgment in favor of Burns, dismissing Singleton’s claims against Burns with prejudice.

DISCUSSION

On appeal, the plaintiff asserts that the trial court erred in granting summary judgment where a genuine issue of material fact exists as to whether Williams was an employee of Burns or an independent contractor.

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Hamdan v. State Farm Mutual Automobile Insurance Co., 36,883 (La.App.2d Cir.3/5/03), 839 So.2d 1017.

The distinction between employee and independent contractor status is a factual determination that must be decided on a case-by-ease basis, taking into consideration the total economic relationship between the parties and the various factors weighing either in favor of or against an employer-employee relationship. The most important element is the right of control and supervision over an individual. Powell v. Fuentes, 34,666 (La.App.2d Cir.5/9/01), 786 So.2d 277, writ denied, 2001-1675 (La.9/21/01), 797 So.2d 674; Estate of Wilburn v. Leggio, 36,534 (La.App.2d Cir.3/19/03), 842 So.2d 1175.

To come straight to the pertinent point in this appeal, if a genuine issue of material fact exists as to whether Williams was an employee of Burns, then summary judgment is inappropriate. After reviewing the record de novo, we conclude that the deposition testimony of Williams creates a genuine issue of material fact in this regard.

The facts of Smith v. Hughes Wood Products Inc., 544 So.2d 687 (La.App. 3d Cir.1989), bear a strong resemblance to those asserted by Williams in his deposition concerning his relationship with Burns. In Smith, Richmond was a defendant along with Hughes Wood Products, Inc. in a suit for trespass and timber damage on the plaintiff’s property. The evidence showed that from 1983 to 1986 Richmond was a wood producer for Hughes. There was no written contract covering their relationship, but Richmond considered that he was working for and employed by Hughes | (¡during that time. Although Richmond furnished his own truck and equipment, Hughes financed some of the equipment for him and also furnished insurance coverage for him. Most of the time, Richmond cut and hauled timber which Hughes had purchased from landowners, but occasionally Richmond worked on timber which he had acquired from a landowner. All timber cut and hauled by Richmond, whether purchased directly by Richmond from a landowner or by Hughes, was delivered to various mills for the account of Hughes. The mills would not deal directly with Richmond, but would accept wood from him only because of his relationship with Hughes.

The appellate court in Smith noted that Richmond theoretically may have been free to work as he wished, but “in economic reality” he was subject to the control and direction of Hughes. If Richmond wanted to cut and haul wood for Hughes, he had to cut and haul when and where Hughes directed, and if he failed to do so, he could be discharged by Hughes at any time because there was no contract for a specific period of time and the arrangement was subject to termination or discontinuance at the will of either party. After considering all the relevant evidence, the appellate court concluded that Richmond was an employee of Hughes and that Hughes was liable in solido with Richmond for damages sustained by Smith.

The third circuit found no meaningful grounds upon which to distinguish Smith in the case of Saucier v. Bunkie Wood Products Company, 1999-1072 (La.App. 3d Cir.12/15/99), 759 So.2d 794. Saucier is another case in which a wood harvester was found “in terms of economic reality” to |7be an employee rather than an independent contractor. See also Green v. Bobby A. Freeman Estate, 1999-1262 (La.App. 3d Cir.4/5/00), 759 So.2d 201. See and compare Ledent v. Guaranty National Insurance Company, 31,346 (La.App.2d Cir.12/28/98), 723 So.2d 531.

We agree with the third circuit’s reasoning in Smith, supra, that a wood cutter can, in economic reality, be the employee of one for whom he ordinarily cuts and hauls timber, and under whose name the wood is accepted by mills. In the instant case, Williams had been “working under” Burns for more than 30 years, and was insured only by Burns. Bums’ employees “flagged” property for Williams before he cut timber. Williams stated that he was required to keep Burns informed of where he was cutting timber. With respect to the timber cutting at issue here, Singleton contacted Burns about the alleged damage, and Burns apparently responded by having an employee do dozer work on the property where the timber was cut in an effort to alleviate the problem. Accordingly, even though Williams theoretically may have been free to work as he wished, the economic reality may well have been quite different.

A cross motion for summary judgment has not been filed seeking a ruling that Williams was an employee of Burns, and we stop short of such a holding today. Instead, we find that the facts before us for our de novo review plainly show that a genuine issue of material fact exists with respect to whether Williams was an employee of Bums.

We also observe that Singleton has asserted on appeal that the work done by Burns to alleviate erosion into Singleton’s pond was not done |scorrectly and caused additional problems to Singleton’s property. Although these allegations are not clearly spelled out in the plaintiff’s petition, there was an indication in Williams’ deposition that such allegations had been made by Singleton, and a genuine issue of material fact also may exist in this regard, aside from the question of the employment relationship between Williams and Burns.

CONCLUSION

For the reasons set forth above, the trial court’s judgment is hereby reversed. Costs are assessed to Burns Forest Products, Inc. The case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

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

Rehearing denied.


author: hKOSTELKA, Judge Pro Tempore.

text:
    Tonia L. PECK, Plaintiff-Appellant, v. Michael Edmond PECK, Defendant-Appellee.
    No. 37,184-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Gary L. Fox, Shreveport, for Appellant.
    Walter F. Clawson, Shreveport, for Ap-pellee.
    Before WILLIAMS, DREW and KOSTELKA (Pro Tempore), JJ.
   hKOSTELKA, Judge Pro Tempore.

Tonia Peck (“Tonia”) appeals the judgment of the First Judicial District Court, Caddo Parish, which dismissed her Rule to Increase Child Support. For the following reasons, we reverse and remand.

Facts

Tonia and Michael Peck (“Michael”) were divorced in Texas on February 17, 1999 (the “Texas judgment”). One child was born of the marriage in 1994. The Texas judgment provided for the sole custody of the minor child with Tonia, subject to supervised visitation with Michael. The Texas judgment further provided that Michael was to pay Tonia child support in the amount of $471.00 per month. Michael was also found to owe arrearages of child support and spousal support in the amounts of $3,768.00 and $3,650.00, respectively, plus accrued interest.

Prior to the rendering of the Texas judgment, Tonia and the minor child moved to Louisiana and established their residence in Caddo Parish where she lived at the time of the hearing subject to this appeal. Michael resided in California. In July, 2001, Tonia filed a petition to make the Texas judgment executory in Louisiana along with a rule for Michael’s failure to pay the child support and arrearage provisions of the Texas judgment. Michael answered Tonia’s petition and also filed a counter rule for contempt for Tonia’s violation of the visitation provisions in the Texas judgment.

The actions came for hearing on May 15, 2002. Each party gave minimal testimony regarding their incomes, child custody, and visitation. As to his income, Michael testified that he earned approximately $54,000.00 | ¿per year. Tonia testified that her yearly income was approximately $30,000.00, not including overtime. After hearing the testimony, the trial court made the following oral ruling:

The Court will find that although the Texas judgment has not been made ex-ecutory here in this jurisdiction, nevertheless the Court will use it as a basis to set the following child support obligation: The Court will set the amount of four hundred seventy-one dollars, and I believe was it twenty cents — or was there some sort of cent on that? — As the basic amount of child support due. The Court will add to that amount the amount of two hundred fifty dollars per month to deal with what the Court believes is the amount that there is an arrears somewhere. Mr. Bailey has indicated that it’s around twenty thousand dollars. We have not actually had that judgment, but the Court believes that based on the testimony and what Mr. Bailey has been able to present that that would probably be the figure at some point established. That two hundred fifty dollars is an amount that we will try to start to service the debt.

The trial court also made specific findings regarding Michael’s visitation with the child and communication between the parents regarding the child. These rulings were formalized in a judgment signed by the trial court on June 14, 2002 (the “June judgment”).

Subsequently, Tonia filed a Motion to File Certified, Exemplified Foreign Judgment in Record, to which was attached a properly certified copy of the Texas judgment.

On July 3, 2002, Tonia filed a Rule to Increase Child Support asking to increase the $471.20 per month as fixed in the June judgment. Michael filed an exception of res judicata. The matter subsequently came for hearing, at which time Michael’s exception was withdrawn, and he opted instead to have the court address the merits of the rule to increase. After Loral argument by the parties, the trial court denied the rule to increase child support and a judgment was subsequently signed on October 28, 2002. It is that judgment which is the subject of this appeal.

Discussion

On appeal, Tonia argues that the trial court erred in denying her rule to modify the June judgment, which the trial court deemed a “considered decree.” For the following reasons, we conclude that said denial was in error.

Initially, we note that Tonia originally brought no allegations requesting the Louisiana trial court to fix or modify the monthly child support originally set forth in the Texas judgment. Tonia’s rule sought to make the Texas judgment execu-tory as to arrearages, debts and medical expenses.

Tonia’s appeal stems from the denial of her Rule to Increase Child Support which she based on an alleged change of circumstances resulting from Michael’s increased salary and the trial court’s failure to consider the “Louisiana State Guidelines.” Clearly, the June judgment simply intended to reinstate and continue the amount of child support set forth in the Texas judgment, and the record does not show that any additional evidence was considered in determining the amount. Obviously, the June judgment only ratified the amount of child support previously awarded Tonia in the Texas judgment. Thus, considering that the monthly amount of child support had never been an issue before the court, the June judgment should not have ^precluded the trial court from considering the merits of Tonia’s request to modify the child support amount originally set by the Texas judgment.

Moreover, the June judgment cannot serve as a basis for denying Tonia a modification in child support because of the trial court’s failure to apply the mandatory provisions of Louisiana’s child support guidelines. See, Stogner v. Stogner, 1998-3044 (La.07/07/99), 739 So.2d 762. In Stog-ner, the Louisiana Supreme Court held that under La. R.S. 9:315, et seq., a trial court is required to perform a review of any stipulation between the parties regarding the payment of child support to ensure that such stipulation was adequate pursuant to the calculation mandated therein or state reasons which warrant a deviation from the proper guideline amount. The Stogner court concluded that a stipulated judgment of child support signed without complying with that mandate could not be used as a basis for denying a subsequent request for modification. Stogner, supra at 769. And while Stogner is somewhat factually distinguishable because it dealt with a stipulated judgment, we see no reason why the same logic does not apply to the June judgment which set child support without consideration of the mandatory provisions of the Louisiana child support guidelines.

Louisiana R.S. 9:315.1(A) and (B) provide:

A. The guidelines set forth in this Part are to be used in any proceeding to establish or modify child support filed on or after October 1, 1989. There shall be a rebuttable presumption that the amount of child support obtained by use of the guidelines set forth in this Part is the proper amount of child support. (Emphasis added.)
B. The court may deviate from the guidelines set forth in this Part if their application would not be in the best interest of the child or would be inequitable to the parties. The court shall Lgive specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines. The reasons shall be made part of the record of the proceedings.

As is evident from the statutory language, and as has been previously recognized by this Court, the use of the child support guidelines in calculating the proper amount of a child support award is mandatory. James v. James, 34,567 (La.App.2d Cir.04/06/01), 785 So.2d 193. Any deviation from the child support guidelines requires the trial court to state either orally or in writing the reasons justifying such a deviation. La. R.S. 9:315.1(B). Failure to give proper consideration to the guidelines results in the judgment being fatally flawed. James, supra at 196.

The trial court’s failure to give proper consideration to the child support guidelines in rendering the June judgment is evident from the transcript of the proceedings. Therein, the trial court specifically stated that it was setting the child support at $471.20 per month using the Texas child support judgment as its “basis” for doing so, and it is apparent that the June judgment did not comport with the calculation mandated by the guidelines. Accordingly, the judgment is fatally flawed and cannot be used for purposes of denying Tonia a modification of child support. Stogner, supra.

| (/Therefore, the October 28, 2002 judgment denying Toma’s request for a modification of child support is hereby reversed. Because the record does not contain sufficient information to carry out a full and appropriate application of the child support guidelines, this matter is remanded to the trial court for a determination of child support to be made in accordance with the findings herein and the mandatory provisions of the child support guidelines.

As to Tonia’s request that any modification of the previous child support award be made retroactive to the date of the filing of her rule, that issue is not properly before this Court pursuant to this appeal. • Because of the trial court’s premature dismissal of the request for modification, the question of retroactivity was never reached. Accordingly, there is nothing for this Court to review. We note that unless good cause is shown to the contrary, any judgment modifying child support is to be made retroactive to the date of judicial demand. La. R.S. 9:315.21.

Conclusion

For the foregoing reasons, we reverse the October 28, 2002 judgment denying Tonia Peck a modification of child support and remand this case to the trial court for a determination of child support consistent with this opinion and the mandates of La. R.S. 9:315, et seq. The costs of this appeal are assessed to Michael Peck.

REVERSED AND REMANDED.

      . Actually, the Texas judgment fixed the child support at $471.00, but the trial court mistakenly fixed the support at $471.20.

      . A review of the evidence indicates that the trial court deviated from the child support guidelines. According to their testimony, the parties’ combined gross annual income was $84,000 ($54,000 earned by Michael and $30,000 by Tonia) and, accordingly, their combined gross monthly income ("C.G.M.I.”) would have been $7,000.00. Assuming there to be no net child care costs, health insurance premiums or other extraordinary expenses, the total child support obligation for one child at that level of income is $886.00. La. R.S. 9:315.8(A) and 9:315.19. Since Michael's income accounts for 64.3 percent of the C.G.M.I., his share of the total child support obligation would amount to $569.70, approximately $100.00 more than the amount set by the trial court. La. R.S. 9:315.8(C). Therefore, it would appear that the award of $471.20 per month is a deviation from the child support guidelines for which the trial court failed to give written or oral reasons.


text:
    STATE of Louisiana, Appellee, v. Raymond Bernard LOGWOOD, Appellant.
    No. 37,178-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Louisiana Appellate Project, by Kenota Pulliam Johnson, for Appellant.

      Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Stephen T. Sylvester, Assistant District Attorney, for Appellee.
    Before WILLIAMS, DREW and KOSTELKA (Pro Tempore), JJ.
   hKOSTELKA, Judge Pro Tempore.

In this criminal appeal by Raymond Bernard Logwood (“Logwood”) alleging excessive sentence, we are required to determine whether the trial court’s failure to state the factual basis of the sentence imposed was cured when the trial court articulated its reasons in its ruling on Log-wood’s motion to reconsider sentence. In this instance, we hold that it does.

Logwood pled guilty as charged to one count of carnal knowledge of a juvenile, a violation of La. R.S. 14:80 punishable by imprisonment at hard labor for not more than ten years, and to two counts of indecent behavior with a juvenile, violations of La. R.S. 14:81 punishable by not more than seven years at hard labor. The state agreed to dismiss an unspecified misdemeanor charge and not to charge Logwood as an habitual offender. The trial court imposed concurrent sentences, respectively, of ten, five and five years at hard labor which, after denial of his timely motion for reconsideration, Logwood appeals as excessive.

The matters of record show that the victim, then a fifteen-year-old female, had been living with her uncle and aunt, Log-wood and his wife, Wendy, since the victim was eight years old. Logwood knew the victim had been sexually abused before she came to live with them. Logwood, age forty-four, sexually abused the victim on multiple occasions by fondling her vaginal area and engaging in sexual intercourse with her. He was discovered after she became pregnant and complained about the rapes.

| ¡¿Logwood now argues that the sentence imposed is excessive, that the trial court failed to adequately articulate for the record its reasons for sentence, and that the court erred in denying the motion to reconsider sentence.

The test imposed by the reviewing court in determining whether a sentence is excessive is two-pronged. The appellate court must first assess whether the record shows that the trial court took cognizance of sentencing guidelines and then assess whether the sentence imposed is too severe. State v. Musgrove, 33,977 (La.App.2d Cir.12/15/00), 774 So.2d 1155, writ denied, 01-0356 (La.09/28/01), 798 So.2d 112. The articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Williams, 34,359 (La.App.2d Cir.05/09/01), 786 So.2d 203, writ denied, 01-2275 (La.05/10/02), 815 So.2d 835. The important elements which should be considered are Logwood’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Carter, 29,972 (La.App.2d Cir.12/10/97), 704 So.2d 832. When the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary, even where there has not been full compliance with the sentencing guidelines. State v. Abram, 32,627 (La.App.2d Cir.10/27/99), 743 So.2d 895, writ denied, 00-0121 (La.09/29/00), 769 So.2d 549.

Prior to imposing sentence, the trial court stated that the PSI had been made available and that a “mitigation of sentence hearing” had been held where Logwood’s spiritual counselor testified in support of mitigating | .-¡Logwood's sentence. The court noted that an affidavit executed by Logwood’s wife, Wendy, had been presented at that hearing. The court indicated that since the hearing, it had considered the testimony of the spiritual advisor and the affidavit, and it had spoken with counsel for Logwood and the prosecution regarding the sentence it was inclined to impose. Additionally, defense counsel stated that he had reviewed the PSI with Logwood and there were no inaccuracies with respect to Logwood’s history. The court then imposed sentence. After sentencing, the PSI and affidavit were filed into the record.

The trial court’s statements that it had considered the mitigating testimony and the affidavit, without stating what facts were considered in fashioning Logwood’s sentence, cannot be considered as reasons for the sentence. Even though arguments were apparently made in chambers and during a bench conference, there was no mention of the content of this conference placed in the record. Although the trial court mentioned that it had received the PSI, it did not state that it had, in fact, reviewed it. Our review of the sentencing colloquy thus discloses that the trial court failed to state the reasons for the sentence it imposed, and, hence, the court failed to comply with the mandate of La.C.Cr.P. art. 894.1(C) to “... state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

The purpose underlying the statutory sentencing guidelines is to provide an explanation for a particular sentence in those cases where the trial judge is given discretion to choose a sentence tailored to the offender’s | circumstances from within a legislatively-provided sentencing range. State v. Washington, 99-1111 (La.App. 4th Cir.03/21/01), 788 So.2d 477, writ denied, 01-1096 (La.05/31/02), 816 So.2d 866. Consideration and articulation of the factors in the sentencing guidelines guide and assist the trial court in the exercise of its broad discretion regarding the imposition of a fair and proper sentence in a particular case and afford the reviewing court some insight into the trial court’s reasoning process, so that the propriety of the sentence can be better evaluated. State v. Allen, 451 So.2d 618 (La.App. 5th Cir. 1984).

Although the trial court failed to achieve the goal of the sentencing guidelines in its sentencing colloquy, remand is unnecessary in this instance because the record clearly shows an adequate factual basis for the sentence imposed. Abram, supra. The factual basis for the sentence imposed was articulated by the court in its response to Logwood’s motion for reconsideration.

In that hearing, the trial court reviewed its reasons for the sentence imposed. It stated that Logwood was the uncle of the victim who considered him to be a father figure. As such, he was well aware of the victim’s age. Logwood committed repeated rapes over a three-month period, two to three times per week, including while the victim was pregnant. He knew of the victim’s history of having been abused but chose to deviate from his father figure role. He had tried to prevent the victim from telling anyone about the improprieties by promising to stop if she would remain silent. The trial court considered Logwood’s prior felony |srecord, consisting of a 1980 conviction for middle grade theft. The court found Logwood should have known the victim was particularly vulnerable due to her age and prior circumstances. The court found Logwood had abused his position of father figure to facilitate commission of the offenses. The court also found there was a risk of further offenses if Logwood were to be granted probation, because he would return to the residence of the victim, and that he was in need of custodial treatment.

We conclude, therefore, that the trial court’s failure to state the factual basis for the sentence it imposed at sentencing was cured when the court articulated those reasons in its ruling on the motion to reconsider sentence. The record clearly demonstrates that the court had considered the sentencing guidelines in fashioning Logwood’s sentence but had inadvertently failed to mention them. Having stated them, however, in response to the motion to reconsider, the goals of the guidelines were met. 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, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980).

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.04/02/97), 691 So.2d 864.

On this record, we do not find constitutional error. The sentences imposed are lawful. Logwood received a benefit from the state’s agreement | finot to charge him as an habitual offender and from its recommendation that the sentences be served concurrently. Logwood’s shameful behavior involved multiple wilful decisions to sexually abuse a particularly vulnerable child over whom he had supervisory authority and responsibility. Considering the totality of the facts and circumstances of this matter, we find the sentences imposed to be neither grossly disproportionate to the severity of the offense nor shocking to our sense of justice. There is no showing of an abuse of the trial court’s discretion.

The convictions and sentences are affirmed.

AFFIRMED.

      . Logwood has one conviction for middle grade theft.

      . Although the presentence investigation report ("PSI”) stated that Logwood was not the father, his wife stated that he is the father of the child.