author: LKOSTELKA, Judge Pro Tempore.

text:
    STATE of Louisiana, Appellee, v. Dale Wayne GREEN, Appellant.
    No. 36,741-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Louisiana Appellate Project, by Edward K. Bauman, Lake Charles, Dale Wayne Green, In Proper Person, for Appellant.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, Tommy J. Johnson, Edward M. Brossette, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, PEATROSS and KOSTELKA (Pro Tempore), JJ.
   LKOSTELKA, Judge Pro Tempore.

After Dale Wayne Green (“Green”) was convicted of distribution of marijuana, La. R.S. 40:966(A)(1), he was adjudicated a third felony offender and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. Green now appeals his conviction and sentence. We affirm.

Facts

At approximately 6:30 p.m. on September 9, 1999, Agent Michael Gray (“Gray”) was working alone as an undercover agent for the narcotics division of the Caddo Parish Sheriffs Office. As part of the covert operation, Gray drove a pickup truck containing hidden video and audio surveillance equipment through a known drug area near Keithville, Louisiana. On that date, the video equipment performed properly, but the audio system malfunctioned. While driving near an intersection known for illegal drug sales, Gray noticed a man, later identified as Green, standing on a street corner, gesturing him to stop. Gray stopped his vehicle and Green asked him if he was looking for anything. Gray responded that he was looking for “weed,” and Green agreed to take him where he could buy some. At that time, Green identified himself as “Dale” and got into Gray’s truck. Green directed Gray to a location where they made contact with a younger male who also got into the vehicle. The three rode around looking for an individual who allegedly had marijuana for sale. At some point, the younger male exited the vehicle and Gray and Green continued to ride | ^around. A few minutes later, Gray and Green came upon a van in which the younger male, who had been dropped off, was seated on the passenger side. Green exited Gray’s truck, made contact with the driver of the van and came back to Gray’s truck with marijuana. Gray handed Green twenty dollars and Green handed Gray the marijuana. Gray protested the amount of marijuana and Green returned to the van. When Green informed Gray that he had received the correct amount of marijuana, Gray and Green discussed Green’s future assistance with drug buys, and Gray gave Green an additional ten dollars for helping him buy drugs. The next day Gray identified Green as the individual who sold him the drugs. Nevertheless, Green’s arrest was delayed until November 12,1999, after the completion of the undercover operation.

Disoussion

Sufficiency of the Evidence

When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731 (La.1992).

The standard of appellate review for a sufficiency-of-evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosley, 29,253 (La.App.2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.3d 1333.

|sThe Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant is guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La. App.2d Cir.09/25/98), 719 So.2d 610, writ denied, 98-2723 (La.02/05/99), 737 So.2d 747.

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency-of-the-evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984).

The crime of distribution is the knowing or intentional distribution of a controlled dangerous substance. State v. Scott, 31,617 (La.App.2d Cir.02/24/99), 730 So.2d 515. Distribution is defined as “delivery” or “physical transfer.” Id. In addition to delivery, the state must prove the defendant must have known or had guilty knowledge of the controlled dangerous substance when he or she transferred it. Id. Louisiana R.S. 40:966(A)(1) and 40:964(0(22) make it unlawful to distribute marijuana, a Schedule I controlled dangerous substance.

|4On appeal, Green contends that the evidence was insufficient to convict him because Gray’s testimony was discredited by the video of the transaction. In a pro se brief, Green also contends that the evidence was insufficient to convict him because he was entrapped into distributing the marijuana to the undercover agent.

Of course, entrapment contentions are normally reviewed on appeal pursuant to the Jackson, supra, sufficiency-of-the-evidence standard. State v. Simpson, 2001-1850 (La.App. 4th Cir.10/16/02), 829 So.2d 650. In this case, however, the record before us discloses that Green neither asserted nor argued the affirmative defense of entrapment at trial. A legal argument, including entrapment, cannot be raised for the first time on appeal. La. C.Cr.P. art. 841; State v. Richardson, 35,-450 (La.App.2d Cir.02/27/01), 811 So.2d 154. Accordingly, this issue is not properly before us for review.

We also reject the remainder of Green’s sufficiency-of-the-evidence complaint. At trial, Gray clearly testified that it was Green who delivered marijuana to him on September 9, 1999 for the total sum of thirty dollars. Gray also testified that Green made a statement after his arrest in which he admitted to selling the marijuana, but for only twenty dollars; Green claimed the additional ten dollars was a loan. Although the surveillance video tape was at times poor in quality and contained no sound, it generally corroborates Gray’s testimony regarding the transaction. This evidence depicts Green exiting the vehicle and Gray paying money and receiving a tissue-wrapped bundle. Obviously, if believed, this testimony and evidence is more than adequate to support Green’s conviction., State v. White, 28,095 (La.App.2d Cir.05/08/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.06/26/98), 719 So.2d 1048.

Green contends that the video depiction of the events fails to show Green “... leaving the vehicle and returning as Deputy Gray testified to at trial_” Specifically, Gray stated that after Green exited the vehicle, he returned once with the marijuana, once to confirm the amount of the drug, and once to receive the ten dollars. On appeal, Green claims that the video depiction of the events contradicts this testimony and destroys Gray’s credibility. As noted above, however, because of the location of the camera, the video captured none of Green’s activities after he exited the vehicle. Therefore, rather than being contradictory to Gray’s testimony regarding Green’s actions during and after the transaction, the video offers no evidence regarding that portion of the events and is better characterized as simply being not fully corroborative. Even so, the record shows that in his closing argument, Green’s counsel pointed out the claimed conflict to the jury. Accordingly, any alleged discrepancies in the testimony of the undercover officer were credibility factors which were considered by the jury. It is apparent that in this case the jury viewed any inconsistency in Gray’s testimony to be insignificant to his overall credibility. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. Bosley, supra. We decline to disturb this credibility call. When viewed in a light most favorable to the | ^prosecution, the remaining evidence is sufficient to prove the essential elements of distribution of marijuana beyond a reasonable doubt.

Multiple Offender Adjudication

In his next assignment of error, Green contends that the trial court erred in adjudicating him a third felony offender because the state failed to adequately prove the predicate offenses upon which the adjudication was based. In his pro se brief, Green also contends that the trial court erred in allowing the state to seal the records pertaining to his second felony offense which denied him the opportunity to review the evidence against him and present available defenses.

On July 16, 2001, the state filed an habitual offender bill of information charging Green as a third felony offender based upon previous guilty pleas for attempted possession of cocaine in 1990 and simple robbery in 1991. On February 7, 2002, Green filed an objection to the multiple offender bill. Nevertheless, on February 11, 2002, the trial court denied Green’s objection and adjudicated him a third felony offender.

If the defendant denies the allegations of the multiple offender bill of information, the burden is on the state to prove the existence of the prior guilty pleas and that the defendant was represented by counsel when they were taken. If the state meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the state. The state will meet its burden if it introduces a “perfect” transcript |7of the taking of the guilty plea-one which reflects a colloquy between judge and defendant wherein the defendant was informed of, and specifically waived, his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the state introduces anything less than a “perfect” transcript, i.e., a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the state to determine whether the state has met its burden of proving the defendant’s prior guilty plea was informed and voluntary and made with an articulated waiver of the three Boykin rights. State v. Shelton, 621 So.2d 769 (La.1993). The state’s burden of proof may be met by a contemporaneous record of the guilty plea proceedings, preferably by the transcript itself. Id.

In this case, the state produced copies of the court minutes and bills of information for both the 1990 attempted possession of cocaine guilty plea and the 1991 simple robbery guilty plea. This evidence shows that Green was represented by counsel in both of these proceedings. The minutes of each guilty plea reflect that Green was informed of “his Constitutional rights as per Boykin v. Alabama (See Court Reporter’s transcript).” At the multiple offender hearing, the state also presented the testimony of a fingerprint expert, who identified Green as the defendant in both previous pleas.

| sGreen complains that the pleas are infirm because there is no evidence that he was informed of the nature or elements of the crimes, sentencing exposure or that subsequent offenses could be used in a multiple offender bill thereby carrying enhanced penalties in accordance with La.C.Cr.P. art. 556.1(E). Notably, our review of the record reveals that only one of these grounds was asserted by Green in his objection to the habitual offender bill, i.e., the possibility of enhanced penalties. As discussed above, new legal arguments cannot be asserted for the first time on appeal. La. C.Cr.P. art. 841; State v. Cressy, 440 So.2d 141 (La.1983); Richardson, supra. Therefore, our review is limited solely to the issue of whether or not the trial court erroneously failed to inform Green of possible enhanced penalties in accordance with La. C.Cr.P. art. 556.1(E).

We find no merit to this claim. La. C.Cr.P. art. 556.1 sets forth the duty of the court to provide a defendant with certain information during the taking of a guilty plea. Section E, which has recently been eliminated from the article, mandated that the court inform the defendant of the possibility of enhanced penalties. Green solely argues that the previous pleas should be deemed invalid as predicate pleas because the state has failed to produce evidence showing that he was informed of enhanced penalties at either of his previous pleas. He does not contend that he would not have pled guilty had he been given sentencing enhancement information. For the following reasons, however, we conclude that such an omission is insufficient to invalidate the adjudication. Article 556.1 was not enacted until 1997, well after Green’s 1990 and 1991 guilty pleas. The jurisprudence prior to that|fltime indicates that the lack of advice and information to the defendant of enhanced penalties did not impact the voluntariness of the plea to the charged offense. State v. Myers, 503 So.2d 1085 (La.App. 2d Cir.1987); See discussion in State v. Dennis Johnson, 34,902 (La.App.2d Cir.09/26/01), 796 So.2d 201. Further, the failure of the trial judge to inform the defendant of the penalties for subsequent offenses in accordance with Article 556.1(E) has been held not to be reversible error because the advice was not required to be given prior to the plea. State v. Guzman, 99-1753 (La.05/16/00), 769 So.2d 1158. Finally, without the presentation of any particularized basis for this argument by Green, any failure of the trial court to inform him of penalty enhancement would be harmless error insufficient to invalidate the pleas. Id. In these circumstances, Green has failed to satisfy his burden of producing some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Therefore, we find the evidence presented by the state identifying Green as the defendant in both the 1990 and 1991 guilty pleas and showing that he was then represented by counsel and informed of his Boykin rights sufficient to satisfy the state’s burden of proof of the predicate offenses.

In his pro se brief, Green also argues that the trial court committed error in allowing “the state to seal the records pertaining to the second predicate offense.” Green claims that the “sealed” records denied him the ability to review the evidence against him and present available defenses. Apparently, Green’s argument is grounded in the state’s description of its evidence relating to the simple robbery conviction as being “under seal.” ImHowever, the record is clear that the phrase utilized by the state referred to the authenticity of the documents, not the closure of the documents from view. Moreover, the record contains copies of both the court minutes and bill of information submitted by the state in proof of the simple robbery conviction. Accordingly, this argument is without merit.

Excessive Sentence

Green also contends that the trial court failed to comply with La.C.Cr.P. art. 894.1, erred in imposing a constitutionally excessive sentence, and in finding that it had no sentencing discretion in imposing the life sentence.

Notably, Green’s untimely motion to reconsider sentence raised only the issue of the excessiveness of the imposed sentence. In these circumstances, our review is limited to that issue. See, La.C.Cr.P. art. 881.1.

The definition of criminal conduct and the provisions of penalties for such conduct is a purely legislative function. State v. Walter Johnson, 97-1906 (La.03/04/98), 709 So.2d 672; State v. Dorthey, 623 So.2d 1276 (La.1993). Pursuant to this function, the legislature enacted the habitual offender statute which has been held on numerous occasions to be constitutional. State v. Walter Johnson, supra. Since that statute in its entirety is constitutional, the minimum sentences it imposes on recidivists are presumed to be constitutional. Id.

InThe determination of an appropriate minimum sentence by the legislature should be afforded great deference by the judiciary. While the judiciary is not without authority to declare a mandatory minimum sentence under the habitual offender law excessive under the facts of a particular case, this should be done only in those rare instances where there is clear and convincing evidence to rebut the presumption of constitutionality. Id.; see, Dorthey, supra.

The trial judge may not rely solely upon the nonviolent nature of the instant crime or prior crimes as sufficient evidence to rebut the constitutional presumption. State v. Walter Johnson, supra. A record of nonviolent offenses can be a factor in a sentencing judge’s determination that the minimum sentence is excessive, but it cannot be the only or major reason for such a determination. Id.

In order to successfully rebut the presumption that the mandatory minimum sentence is constitutional, a defendant must clearly and convincingly show that:

[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

Id. Additionally, in determining whether Green has met his burden, the trial judge must consider that the goals of the Habitual Offender Law are to deter and punish recidivism. Id. Finally, it must be emphasized that the departure downward from the minimum sentence prescribed under the Habitual Offender Law should occur only in rare instances. Id.

liJn compliance with La. R.S. 15:529.1A(l)(b)(ii), as it read on the date of Green’s offense and which imposed a statutory minimum life sentence for a third felony offender who had a prior felony defined as a crime of violence under La. R.S. 14:2(13), the court imposed a life sentence to be served without benefits. Accordingly, the imposed sentence is presumed to be constitutional. State v. Walter Johnson, supra.

On appeal, Green avers that the imposed sentence is excessive in light of his previous criminal history and the fact that he was a middleman who arranged for an undercover deputy to buy a twenty-dollar bag of marijuana. Green argues that he will ultimately spend the rest of his life in jail despite receiving only ten dollars for the sale. Nevertheless, Green made no such argument to the trial court nor presented evidence showing his claimed unusual circumstances or that he is the “exceptional” defendant for which downward departure from the mandatory statutory minimum is required. Moreover, as the trial court noted, Green’s criminal record includes both a crime of violence and a drug offense punishable by more than five years. His propensity toward illicit drug activity has obviously not been assuaged by previous sentencing leniency. In these circumstances, the trial court correctly determined that it had no discretion in imposing the life sentence. Green’s sentence is, therefore, affirmed.

CONVICTION AND SENTENCE AFFIRMED.

      . Both Green and his counsel have submitted briefs.

      . This individual was never identified.

      . Notably, the state also provided Green with the transcript of the 1990 attempted possession of cocaine guilty plea in discovery. That transcript shows that Green was informed of and waived his rights to trial by jury, cross-examination and confrontation of witnesses and his privilege against compulsory self-incrimination.

        . Moreover, because the sentence imposed is statutorily prescribed, trial court compliance with La.C.Cr.P. art. 894.1 is not mandated. State v. Carlos Johnson, 31,448 (La.App.2d Cir.03/31/99), 747 So.2d 61, writ denied, 99-1689 (La.11/12/99), 749 So.2d 653, cert denied, 529 U.S. 1114, 120 S.Ct. 1973, 146 L.Ed.2d 802 (2000).


source: Caselaw Access Project

author: | í GASKINS, J.

license: Public Domain

text:
    Dr. Dwight VINES and Dr. Van McGraw, Plaintiffs-Appellants, v. NORTHEAST LOUISIANA UNIVERSITY and the Board of Trustees, University of Louisiana System, Defendants-Appellees.
    No. 36,747-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.
    Rehearing Denied April 3, 2003.

      Johnny E. Dollar, Monroe, Dwan S. Hil-ferty, New Orleans, for Appellants.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, by H. Mark Adams, Pauline F. Hardine, Virginia W. Gundlach, Jennifer L. Anderson, Baton Rouge, McLeod Verlander, by Robert M. McLeod, Donald C. Douglas, Jr., Monroe, for Appel-lee University of Louisiana at Monroe.
    Winston G. Decuir, New Orleans, Linda Law Clark, Baton Rouge, for Appellee Board of Supervisors of the University of Louisiana System.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   | í GASKINS, J.

The plaintiffs, Dr. Dwight Vines and Dr. Van McGraw, appeal a trial court judgment sustaining an exception of res judica-ta and collateral estoppel as to their claims of age discrimination. The exception was based upon the dismissal of a suit in federal court filed by the Equal Employment Opportunity Commission (EEOC). The defendants, Northeast Louisiana University and the Board of Trustees of the University of Louisiana System, have answered, seeking sanctions for a frivolous appeal. For the following reasons, we reverse the trial court judgment and deny the claim for frivolous appeal.

FACTS

The plaintiffs were professors at Northeast Louisiana University, now known as the University of Louisiana at Monroe (ULM). Vines retired in 1989 and McGraw retired in 1991. They voluntarily chose to retire with benefits equal to 100% of their average compensation during their last three years of work. They simultaneously were rehired on a year-to-year basis. The plaintiffs worked for five years under this plan, receiving retirement benefits in addition to salaries for work performed.

In January 1996, the University of Louisiana System adopted a policy prohibiting the re-employment of retirees on a regular full-time basis. In April 1996, the plaintiffs were notified that they would not be rehired for the 1996-1997 year.

In May 1997, the plaintiffs filed suit in federal court claiming that the defendants violated the federal Age Discrimination in Employment Act (ADEA) contained in 29 U.S.C. § 621 et seq., as well as Louisiana law | ¿prohibiting age discrimination. On the same date, they filed suit in state court asserting the same causes of action.

ULM removed the state court suit to federal court, claiming federal question jurisdiction. The cases were consolidated. The plaintiffs claimed that the defendants violated the federal and state laws against age discrimination by prohibiting the reemployment of retirees, paying the plaintiffs less than younger professors, and increasing their workloads.

The EEOC then instituted a separate action in federal court naming the plaintiffs as aggrieved parties. The EEOC alleged that ULM had a policy of paying rehired retirees lower wages and giving them increased workloads, in violation of the ADEA. The EEOC action was also consolidated in federal court with the federal and state cases brought by the plaintiffs. According to the plaintiffs, the EEOC eventually expanded the scope of victims to include all retirees employed at lower wages or rejected or terminated from employment.

In August 1999, the federal court granted an exception of prescription as to the plaintiffs’ state court claims.

On January 11, 2000, the United States Supreme Court in Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 681, 145 L.Ed.2d 522 (2000), found that individuals may not sue the states under the ADEA.

|3The defendants filed a motion for summary judgment, seeking dismissal of the EEOC’s and the plaintiffs’ remaining ADEA claims. Based upon Kimel, the federal court concluded that it lacked jurisdiction over the plaintiffs’ ADEA claims. However, the EEOC was not barred from asserting those claims on behalf of the plaintiffs.

The federal court also found in June 2000 that it lacked subject matter jurisdiction over the plaintiffs’ individual state law claims and vacated its prior order dismissing the state law claims on grounds of prescription. The plaintiffs’ state law claims were remanded to the state court. The EEOC’s age discrimination claim on behalf of the plaintiffs proceeded in federal court. According to the plaintiffs, during discovery, the EEOC expanded the scope of the alleged victims to include others affected by the decision not to hire retirees.

Shortly before trial of the EEOC claim, the federal judge granted summary judgment, dismissing the lawsuit. The court found that the defendants’ policy did not violate the ADEA and that ULM had neither paid lower wages nor discharged the plaintiffs in violation of the ADEA. The court found that the defendants had legitimate nondiscriminatory reasons for their decisions regarding the plaintiffs and there was no evidence to support a finding that the decisions were motivated by age. The EEOC sought to appeal the judgment, but then dismissed its appeal. At that point, the only matter still outstanding was the plaintiffs’ discrimination claim based upon state law, which had been remanded to the state court.

|/The defendants filed an exception of res judicata/ collateral estoppel in the present case, arguing that it asserted the same claims and issues previously litigated and decided adversely to the plaintiffs in federal court. The trial court granted the exception, dismissing the plaintiffs’ state court claims with prejudice.

The trial court, in a carefully considered judgment, found that the federal principles of res judicata applied to bar the plaintiffs’ claims. The court noted there was no dispute that the federal court summary judgment on the EEOC claim was rendered by a court of competent jurisdiction and that the decision was final on the merits. The trial court noted that although the same parties were not involved, the EEOC was in privity with the plaintiffs. The court also stated that “strictly speaking” the cause of action was not the same. However, the court found that the same nucleus of operative facts applied, therefore res judicata barred the present action. The plaintiffs appealed the trial court judgment and the defendants answered the appeal.

RES JUDICATA AND COLLATERAL ESTOPPEL

The plaintiffs contend that the tests for res judicata and collateral estoppel were not met. While they concede that there was a judgment by a court of competent jurisdiction in the ADEA claim brought by the EEOC, and it was a final judgment on the merits, they argue that the cases do not involve the same parties or the same cause of action. These arguments have merit.

A final judgment in federal court can become the basis for a res judicata plea in state court. A federal court summary judgment based upon the burden of proof, and not lack of jurisdiction, is a final judgment for purposes of a subsequent state court plea of res judicata. Fust u Fontenelle, 558 So.2d 715 (La.App. 4th Cir. 1990).

The federal law of res judicata bars all claims that were or could have been advanced in support of the causes of action on the occasion of its former adjudication, not merely those that were adjudicated. Palmer v. Lanco Construction, 95-0987 (La.App. 4th Cir.11/3C/96), 665 So.2d 1217. Claim preclusion will therefore apply to bar a subsequent action on res judicata principles where parties or their privies have previously litigated the same claim to a valid final judgment. Reeder v. Succession of Palmer, 623 So.2d 1268 (La.1993), cert. denied, 510 U.S. 1165, 114 S.Ct. 1191, 127 L.Ed.2d 541 (1994).

As specified in Reeder v. Succession of Palmer, supra, for res judicata to bar pendent state law claims in a subsequent state law proceeding, certain conditions must be met. First, the federal court must have jurisdiction over the federal law claims. Second, it must exercise that jurisdiction and render a judgment on the merits. Third, there must have been pendent state law claims that were not litigated due to a failure of the plaintiff to assert the claims. Under federal law, res judicata does not apply unless the party claimed to be barred had a “full and fair opportunity” to litigate the claim in the first action. Benton, Benton and Benton v. Louisiana Public Facilities Authority, 95-1367 (La.App. 1st Cir.4/4/96), 672 So.2d 720, writ denied, 96-1445 (La.9/18/96), 679 So.2d 110.

When a state court is required to determine the preclusive effects of a judgment rendered by a federal court exercising federal question jurisdiction, it is the federal law of res judicata that must be applied. Reeder v. Succession of Palmer, supra; Benton, Benton and Benton v. Louisiana Public Facilities Authority, supra.

For a federal court judgment to bar a subsequent suit under federal res judicata principles, it must meet four tests: (1) both cases must involve the same parties; (2) the prior judgment must have been rendered by a court of competent jurisdiction; (3) the prior judgment must have been a final judgment on the merits; and (4) the cause of action at issue must have been the same in both cases. Arthur v. Zapata Haynie Corporation, 95-956 (La.App. 3d Cir.1/22/97), 690 So.2d 86, writ denied, 97-1031 (La.5/30/97), 694 So.2d 252, cert. denied, 522 U.S. 860, 118 S.Ct. 162,139 L.Ed.2d 106 (1997).

Even if res judicata does not apply, the doctrine of collateral estoppel, or issue preclusion, may. Collateral estop-pel prohibits litigation between the same parties in any future lawsuit when an issue of ultimate fact has been determined by a valid and final judgment. When an issue or factor of law is actually litigated and determined to be a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. RecoverEdge v. Pentecost, 44 F.3d 1284 (5th Cir.1995).

17Privity

In order to properly evaluate the plaintiffs’ claim that the federal summary judgment in the action filed by the EEOC does not serve as a res judicata bar in the present state court action, we must first decide whether the parties in the two actions are the same. This necessarily requires consideration of whether the EEOC and the plaintiffs were in privity in the action filed by the commission.

According to the plaintiffs, the EEOC was not representing them in the federal case. They also argue that, to the extent that the EEOC may be deemed to represent them, it did so only as to the federal ADEA claim and not as to the claim of age discrimination under state law. They contend that the federal court’s action in remanding the state claims demonstrates that there are different causes of action. They assert that the ADEA and Louisiana’s anti-discrimination statute provide different remedies. The plaintiffs also point out that there was no mechanism for them to advance their state court claims in the action filed by the EEOC. The plaintiffs claim that they never consented to representation by the EEOC as to their state cause of action. They maintain that the EEOC has no express or implied relationship with an individual bringing a claim of discrimination and the EEOC owes nothing to the plaintiffs.

As stated above, Louisiana law provides a state court remedy for age discrimination. The law specifies that a plaintiff who has a cause of action against an employer, employment agency, or labor organization for violation of the Louisiana Employment Discrimination Law may file suit in |sthe district court of the parish where the alleged violation occurred. See La. R.S. 23:313 and former La. R.S. 23:973.

Also, federal law prohibits discrimination against workers on the basis of age. See 29 U.S.C. § 621 et seq. The interplay between the state and federal statutes is set forth in 29 U.S.C. § 633 which provides:

Nothing in this chapter shall affect the jurisdiction of any agency of any State performing like functions with regard to discriminatory employment practices on account of age except that upon commencement of action under this chapter such action shall supersede any State action.
(b) Limitation of Federal action upon commencement of State proceedings In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated: Provided, That such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State law. If any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority.

Under this scheme, a claimant is required to seek redress of his employment grievances under state law first. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979). However, prior to the Supreme Court decision in Kimel, an individual could file an ADEA claim against a state entity on his own behalf and could also attach his pendent state claims.

|9The Supreme Court in Kimel then held that an individual claimant does not have the right to bring an ADEA action against the state. The Supreme Court found that the ADEA’s purported abrogation of the states’ sovereign immunity was invalid. The Supreme Court held that state employees are protected by state age discrimination statutes and specified that those avenues of relief remain available, just as they were before the decision. Also, the EEOC was empowered to bring suit to prohibit an employer from violating the ADEA.

As stated above, based upon Kimel, the plaintiffs’ individual suit under the ADEA was dismissed and the pendent state law claim was remanded for lack of jurisdiction. Later, the EEOC claim was dismissed in federal court pursuant to summary judgment on the merits. Therefore, we must decide whether the EEOC was in privity with the plaintiffs on the ADEA claim sufficient to bar the plaintiffs’ claim under Louisiana law.

A matter very similar to the facts of the present case was considered in Victa v. Merle Norman Cosmetics, Inc., 19 Cal.App.4th 454, 24 Cal.Rptr.2d 117 (1993). In that case, the court was called upon to decide whether an action in federal court by the EEOC, under the ADEA, claiming that the defendant discriminated against Ms. Victa on the basis of age, served as a res judicata bar to the plaintiffs suit for age discrimination in state court under state law. The EEOC and the defendant eventually agreed upon a stipulated judgment. Ms. Victa then proceeded with her state court claim. The court noted that the EEOC did not have standing to assert the cause of action under state law.

|10The court reasoned that because the plaintiff was not a party to the EEOC case, she would be bound by the judgment only if she was in privity with the EEOC. The court noted that the requirement of identity of parties or privity is a requirement of due process, which requires that the nonparty have had an identity or community of interest with, and adequate representation by the losing party in the first action. The Victa court also stated that the circumstances must have been such that the nonparty should reasonably have expected to be bound by the prior adjudication.

In deciding whether privity existed under the facts presented, the Victa case considered the United States Supreme Court ruling of General Telephone Company of the Northwest, Inc. v. Equal Employment Opportunity Commission, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980). In that case, the EEOC filed suit for sex discrimination for employees in several states under Title VII of the Civil Rights Act of 1964. The Supreme Court ruled that the EEOC could pursue that suit without the requirement of class action certification under the Federal Rules of Civil Procedure. In so reasoning, the Supreme Court noted that the EEOC did not have the exclusive right of protecting private interests. The Supreme Court found that the EEOC has a right to sue independent of any private plaintiffs rights; the EEOC’s suit was intended to supplement, not replace, the private action. In this respect, the EEOC acts to vindicate the public interest in preventing employment discrimination and its interests are broader than those of the individuals injured by discrimination. See also Equal Employment Opportunity Commission v. Harris Chernin, Inc., 10 F.3d 1286 (7th Cir.1993). The General Telephone court found that the EEOC’s enforcement authority was not merely a proxy for the victims of discrimination and that EEOC judgments would not have automatic res judicata effect.

Although General Telephone Company of the Northwest, Inc. v. Equal Employment Opportunity Commission, supra, states that the EEOC is not in privity with individual claimants, that case dealt with a claim of employment discrimination under Title VII and not under the ADEA. Title VII includes slightly different provisions for enforcement than are contained in the ADEA.

The Victa decision also looked for guidance to the matter of Equal Employment Opportunity Commission v. United States Steel Corporation, 921 F.2d 489 (3d Cir. 1990). The United States Steel case noted the differences in the enforcement mechanisms between Title VII and the ADEA. The Third Circuit found that there was privity with individuals when the EEOC seeks individual relief on behalf of griev-ants under the ADEA, but there may not be when the EEOC seeks to enjoin discrimination affecting an entire class. The court reasoned that “privity” is a word used to say that the relationship between one who is a party on the record and another is close enough to include that other within the res judicata.

One relationship long held to fall within the concept of privity is that between a nonparty and a party who acts as the nonparty’s representative. The Third Circuit went on the say that litigation involving a representative may have claim preclusive effects in two ways. If the representative party |12Iitigates first, subsequent litigation involving persons on whose behalf the representative appeared may be precluded. Conversely, if a person litigates in his own behalf, that person may be precluded from claiming any benefits of a judgment in a subsequent action that is brought or defended by a party representing him. Under the facts in United States Steel, the court found that the EEOC’s responsibilities included the representation of the grievants when it sought individual relief on their behalf. However, the EEOC’s role differs when it attempts to protect a broader interest by seeking to enjoin discrimination affecting an entire class. Equal Employment Opportunity Commission v. United States Steel Corporation, supra.

The Third Circuit found that the EEOC was the individual’s representative in the ADEA action in that case and that the decision served as a res judicata bar to the other actions. Equal Employment Opportunity Commission v. United States Steel Corporation, supra.

In Vida v. Merle Norman Cosmetics, Inc., supra, the California court distinguished the opinion in Equal Employment Opportunity Commission v. United States Steel Corporation, supra. The Vida court reasoned that the Third Circuit failed to note that 29 U.S.C. § 626(c)(1) does not cut off the private action rights of claimants who have brought state law actions or ADEA' suits before the EEOC sues. The Vida court found that, while there may be privity with the EEOC when a claimant has not previously brought a separate state law action, such does not exist if the claimant files a state court claim before the EEOC files suit under federal law, but the matter has not yet been adjudicated.

|13The Vida court further pointed out that the plaintiff had no litigative participation or control in the EEOC action and noted the EEOC was, in effect, representing the general public interest rather than the plaintiffs. Under the specific facts of that case, the court in Vida concluded that the element of privity was lacking and therefore, the EEOC judgment could not stand as a res judicata bar to the present action under state law.

While recognizing that the ruling in Vic-ta holds no precedential value in this state, we have determined the reasoning in that case to be persuasive. There was no privity between the EEOC and the plaintiffs in the present case. In this matter, after the Supreme Court decision in Kimel, the plaintiffs did not have the right to individually maintain an ADEA claim against a state agency. After Kimel, only the EEOC could prosecute the ADEA claim against the defendants in this case. Because the plaintiffs’ individual ADEA claim had to be dismissed on those grounds, the federal court no longer had jurisdiction over the state claim which had been asserted by the plaintiffs. The matter was remanded to the state court.

However, the Kimel decision specifically recognized the right of employees to sue under state statutory schemes. While the EEOC was the proper party to assert the ADEA claim, that agency did not prosecute any claim under state law. Further, as in Victa, there is no showing that the EEOC had standing to prosecute such a claim under Louisiana law.

| uAlso, we note that the EEOC apparently expanded the class of victims in the suit to include others similarly situated with the plaintiffs. The EEOC action was not prosecuted solely regarding the plaintiffs, and the commission was, in effect, representing the general public interest rather than those of the plaintiffs. Therefore, even under the reasoning of Equal Employment Opportunity Commission v. United States Steel Corporation, supra, it appears that the EEOC was not in privity with the plaintiffs because it sought to enjoin discrimination against a class of victims, not just the plaintiffs.

Further, the plaintiffs argue that they had no control over the conduct of the suit by the EEOC. They had no control over bringing or maintaining the ADEA action or in dismissing the appeal of the judgment against the EEOC.

Simply stated, the plaintiffs have a right to bring a suit under Louisiana’s age discrimination statutes. The plaintiffs have not been afforded a full and fair opportunity to litigate their claims under state law and those claims have not been adjudicated on the merits. At the time the suit was brought, the plaintiff sought to assert their state claims as well as federal claims. The state claims were remanded by the federal court on grounds of lack of jurisdiction. Under Reeder v. Succession of Palmer, supra, the plaintiffs did not fail to assert pendent state law claims.

All four elements of the res judicata test must be satisfied. Because there was no privity between the plaintiffs and the EEOC, we find that the parties in the two actions were not the same.

|1fiOther Issues Appealed

The plaintiffs also argued that the present case and the EEOC matter did not present the same cause of action, therefore failing to satisfy another factor of the federal res judicata test. We note that the question of whether the state and federal law on age discrimination is the same is not a settled matter. While federal law allows for the recovery of liquidated damages, state law does not. See Deloach v. Delchamps, Inc., 897 F.2d 815 (5th Cir. 1990). Other differences have also been noted in Aultman v. Entergy Corporation, 1998-2244 (La.App. 1st Cir.11/5/99), 747 So.2d 1151. However, because the federal requirements for res judicata have not been met in this case due to a lack of privity between the plaintiffs and the EEOC, we do not reach consideration of whether the same cause of action is asserted.

The plaintiffs also argue that the EEOC failed to adequately represent their claims, that the state law claims were preserved by the federal court remand, and that this matter presents exceptional circumstances precluding application of res judicata. Because we find that the trial court erred in granting res judicata in this matter, and vacate the trial court judgment, we do not reach consideration of these issues.

FRIVOLOUS APPEAL

In their answer, the defendants contend that they are entitled to sanctions because the plaintiffs’ appeal is frivolous. They claim that the res judicata bar is clear and they seek damages under La. C.C.P. art. 2164. Because we find that the trial court erred in granting the exception of res \Kjudicata in favor of the defendants, the appeal is not frivolous and the defendants’ claim in this regard is denied.

CONCLUSION

For the reasons stated above, we reverse the trial court judgment granting an exception of res judicata in favor of the defendants, Northeast Louisiana University and the Board of Trustees of the University of Louisiana System, and against the plaintiffs, Dr. Dwight Vines and Dr. Van McGraw. The plaintiffs’ state court action is reinstated and the matter is remanded for further proceedings. Costs in this court are assessed against the defendants in accordance with law.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . The plaintiffs claim violation of La. R.S. 23:971 and 51:2232 et seq. These provisions were later combined into the Louisiana Employment Discrimination Law contained in La. R.S. 23:301 et seq. According to the plaintiffs, the amendment and recodiñcation of the statutes have no bearing upon the question of res judicata.

        . No claim as to prescription is before us on appeal.

      . We note that in Equal Employment Opportunity Commission v. Harris Chemin, Inc., supra, the Seventh Circuit found only limited privity between an individual allegedly damaged by discrimination and the EEOC. The Seventh Circuit found that, while a dismissal of the employee's individual claim prevented further action by the EEOC for damages for that employee, the commission was not barred from seeking an injunction against the employer for further discrimination.


author: h GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Charles Ray SNOW, Appellant.
    No. 36,826-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Richard Ieyoub, Attorney General, James Bullers, District Attorney, J. Spencer Hayes, Randall Smith, Joe Gregorio, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   h GASKINS, J.

The defendant, Charles Ray Snow, pled guilty to one count of distribution of cocaine. He was sentenced to serve 30 years imprisonment at hard labor with five years to be served without benefit of parole, probation, or suspension of sentence. He now appeals. For the following reasons, we affirm.

FACTS

On three separate dates in August 1998, the defendant sold crack cocaine to an undercover police officer in Bossier City, Louisiana. The total value of the cocaine sold was $200. The crime lab verified that the substances sold were cocaine, a Schedule II controlled dangerous substance.

The defendant was arrested and charged with three counts of distribution of cocaine, violations of La. R.S. 40:967. The offense is punishable by imprisonment at hard labor for not less than five years nor more than 30 years, the first five years of which must be served without benefit of parole, probation, or suspension of sentence, plus an optional fine. The state agreed to dismiss two of the counts in exchange for defendant’s guilty plea to one count.

The defendant pled guilty in February 1999 to one count of distribution of cocaine but, prior to sentencing, he fled to another jurisdiction. The defendant was apprehended approximately three years later.

In June 2002, the district court imposed a sentence of 30 years at hard labor, with five years of the sentence to be served without benefit of parole, probation, or suspension of sentence. The sentence was ordered to be | ¡.served consecutively with any other sentence and credit was given for time served. The defendant was also informed that as a second felony offender, 50 percent of the sentence had to be served before he would be eligible for parole. The trial court also denied a motion for reconsideration of sentence. On appeal, the defendant argues that the trial court failed to advise him of the mandatory minimum sentence and that the sentence imposed is excessive.

MANDATORY MINIMUM SENTENCE

The defendant asserts that the trial court erred in failing to advise him of the mandatory minimum sentence prior to the entry of the guilty plea. This argument is without merit.

For guilty pleas entered after August 15, 1997, La. C. Cr. P. art. 556.1 requires the trial court, prior to accepting a guilty plea, to inform the defendant, inter alia, of the mandatory minimum penalty provided by law. A failure of a trial court to advise a defendant of the mandatory minimum sentence, if raised as an assignment of error on appeal, is subject to analysis under the harmless error rule. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

Here, during the guilty plea colloquy, the trial court advised the defendant that he faced a mandatory minimum sentence. However, the court did not state that the minimum sentence was five years nor did the court state that the minimum period of five years must be served without benefit of probation, parole, or suspension of sentence. The defendant has not shown that the guilty plea was coerced. There is no indication that the |sdefendant did not understand the nature of the charges against him or that he was induced to plead guilty based upon an erroneous lack of information regarding the mandatory minimum sentence. The record demonstrates that the defendant understood there was a mandatory minimum sentence and that the maximum possible sentence to which he was exposed was 30 years.

Under these circumstances, we find it unreasonable to believe that the defendant, a second felony offender who had secured a dismissal of two of three charges against him, reducing his sentencing exposure by 60 years, would not have pled guilty had he known that the mandatory sentence included a requirement that the first five years be served without benefits. See State v. Sullivan, 2002-0360 (La.App. 3d Cir.10/2/02), 827 So.2d 1260. We find the error to be harmless.

EXCESSIVE SENTENCE

The defendant argues that the sentence imposed was excessive. The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary Leven where there has not been fall compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982).

Prior to imposing sentence, the trial court considered a presentence investigation report and the facts of the case. The court noted that the defendant’s plea bargain had reduced his sentencing exposure by 60 years. The judge observed that the defendant’s criminal history included a conviction for illegal possession of stolen things. Also, the defendant had been charged with being a felon in possession of a firearm. The defendant was a second felony offender who absconded pri- or to sentencing. The court found the defendant ineligible for probation because a prior probation had been revoked. Finally, the court determined that a lesser sentence would deprecate the seriousness of the pled offense. Based upon these factors, the record shows that the trial court considered the criteria set forth in La. C. Cr. P. art. 894.1.

The second test is whether the sentence imposed is too severe depending on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 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.4/2/97), 691 So.2d 864.

LA trial court has broad discretion to sentence within the statutory limits. Where a defendant has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, a reviewing court may not set aside a sentence. State v. Guzman, supra.

On this record, we do not find constitutional error. The defendant, who fled to avoid sentencing, received a substantial benefit from his plea bargain. The offense of conviction does not adequately describe his criminal conduct. The defendant also received leniency from the state’s decision not to charge him as a repeat offender. The jurisprudence noted above upholds the imposition of the maximum authorized sentence in this case.

The sentence imposed is lawful. It is neither grossly disproportionate to the severity of the offense nor is it shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence which, under the facts and circumstances of this case, is not constitutionally excessive.

ERROR PATENT

At sentencing, the trial court did not advise the defendant of the time period within which to apply for post-conviction relief. La. C. Cr. P. art. 980.8(C), which requires the trial court to inform the defendant of the limitations period for filing an application for post-conviction relief, is [^supplicatory language which does not bestow an enforceable right on an individual defendant. State v. Hilbun, 36,048 (La. App.2d Cir.6/12/02), 821 So.2d 530. The trial court should have advised the defendant, and we now advise him by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922. No other error patent on the face of the record is noted.

CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Charles Ray Snow.

AFFIRMED.


author: 11 STEWART, J.

text:
    Wanda ELKINS, Plaintiff-Appellee, v. LOUISIANA DEPARTMENT OF AGRICULTURE & FORESTRY, Defendant-Appellant.
    Nos. 36,829-WCA, 36,889-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.
    Rehearing Denied April 3, 2003.

      Richard P. Ieyoub, Attorney General, Richard R. Storms, Assistant Attorney General, for Appellant.
    Street & Street, by C. Daniel Street, Monroe, for Appellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   11 STEWART, J.

The Louisiana Department of Agriculture and Forestry (“LDAF”) appeals a default judgment entered on behalf of Wanda Elkins (“Elkins”) in this workers’ compensation matter. Finding that the plaintiff failed to properly serve the defendant, we reverse.

FACTS

Wanda Elkins was a trapper for the Louisiana Department of Agriculture and Forestry. This job required her to drive a four wheeler and place traps for boll weevils in cotton fields in Northeast Louisiana. She would later return to these traps, clean them and record the number of boll weevils caught. On May 22, 2001, Elkins was performing her job in a field in More-house Parish when her co-worker found her sitting on the ground dazed and complaining of pain in her head. Elkins could not remember what happened, but her coworker reported the situation to the Monroe office supervisor. The co-worker noticed that once Elkins’ foot had been pulled out of her boot it had a tire mark on it.

Nonetheless, LDAF denied Elkins’ workers’ compensation. On January 8, 2002, Elkins filed a 1008 claim against LDAF demanding payment of workers’ compensation indemnity and medical benefits and penalties and attorney fees. A mediation was held January 29, 2002. Freddie Akins (“Akins”), the local state claims handler who handles all claims against the state and its agencies in the area, participated in the mediation, and accepted service on behalf of LDAF. Akins received the citation on February 5, 2002. When LDAF did not respond, Elkins requested the entry of a preliminary default on February 28, 2002. The ^default was confirmed March 11, 2002, and the judgment was signed on March 13, 2002.

LDAF filed an appeal from the confirmation of judgment, but also filed a Petition for Nullity of Judgment which was also denied. LDAF appealed each ruling and the cases were consolidated on appeal.

DISCUSSION

Proper Service

The issue of service of citation requirements is addressed by Louisiana Code of Civil Procedure article 1201 which reads in pertinent part:

A. Citation and service thereof are essential in all civil actions ... without them all proceedings are absolutely null.
B. The defendant may expressly waive citation and service thereof by any written waiver made a part of the record.

Proper citation is the cornerstone of all actions. The law is, moreover, patently clear that actual knowledge cannot supplant the need for strict compliance with the requisites of proper citation. Rivers v. Groth Corp. 95-2509 (La. App. 1 Cir.9/27/96), 680 So.2d 762. La. R.S. 23:1310.3(0) discusses the proper procedure for citation following mediation in a workers’ compensation matter stating that:

Upon notice from the workers’ compensation mediator that the parties were unable to resolve the dispute, service of process shall be effected on any named defendant in any manner provided by law or by certified mail. All subsequent pleadings requiring service shall also be served in any manner provided by law or by certified mail. A defendant shall file an answer within fifteen days of service of the form or within a delay for answering granted by the workers compensation judge not to exceed an additional ten days. (Emphasis added).

^Following completion of the mediation case report by Doniele Staten on January 29, 2002, Elkins issued a citation to LDAF’s insurer, Office of Risk Management, through adjuster Freddie Akins on January 31, 2002, and Akins accepted service of February 5, 2002. LDAF was not served until March 18, 2002, when it received notice of the confirmation of the default judgment of March 14, 2002. We find that service was defective in this case.

LDAF raises four assignments of error on appeal. However, our finding that service was improper in this matter and that the resulting judgment was a nullity pre-termits any discussion of the other assignments. Proper service is outlined in La. R.S. 23:1312 which provides that:

A. In the case of a suit against the state, service of the petition and the citation shall be made both on the governor and on the attorney general. Payment of the judgment rendered against the state shall be submitted in due course for consideration by the legislature in making appropriations or submitted for payment in accordance with the provision of R.S. 13:5115 through 5119.
B. In the case of suits against any public board, commission, or agency, the director shall serve the president or chairman thereof, or any other officer thereof authorized by law to accept service, by certified mail as required by Section 1310.2, and payment of any judgment rendered against such public board, commission, or agency shall be made in due course by such public board, commission or agency, if duly authorized by law, or in the absence of such authorization, such judgment shall be submitted for payment in accordance with the provisions of R.S. 13:5115 through 5119. In any and all such suits the defenses thereto, and the procedure otherwise, shall be the same as those provided in this Chapter.

The record reveals that Elkins did not serve the Governor, the Attorney General, the director, chairman, or any officer of LDAF. Consequently, the|4service was defective and the preliminary default as well as the default judgment itself are null. Benton v. International Paper Co., 35,977 (La.App.2d Cir.5/8/02), 817 So.2d 443. Benton, supra stands for the proposition that a workers compensation claimant must follow the proper procedural requirements before a default judgment will be confirmed. The plaintiffs claims that Akins has customarily accepted service for the State in mediation proceedings has nothing to do with his ability to accept service in a civil suit against the State. La. R.S. 23:1312 is very clear about the procedure to be followed in filing suit against the state or one of its agencies. Service upon a claims adjuster is not the method proscribed by the statute.

In sum, the default judgment entered in this case was defective because of Elkins’ failure to comply with the requirements of service under Louisiana law. Therefore, confirmation of the default judgment was improper and a judgment of nullity should be granted.

JUDGMENT ANNULLED AND REMANDED.

APPLICATION FOR REHEARING

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

Rehearing denied.

MOORE, J., would grant rehearing.


author: I t GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Bobby COOPER, Appellant.
    No. 36,830-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Lavalle B. Salomon, Monroe, for Appellant.
    Richard P. Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Geary Aycock, J. Michael Ruddick, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and KOSTELKA (Pro tempore), JJ.
   I t GASKINS, J.

Following a jury trial, the defendant, Bobby Cooper, was convicted of second degree murder and sentenced to the mandatory term of life imprisonment without benefit of probation, parole or suspension of sentence. The defendant’s conviction and sentence are affirmed.

FACTS

On the night of November 7, 1997, the 18-year-old victim, Earl Williams, borrowed a car belonging to his friend, Derrick Handy. He later returned to the Handy residence where he spent the night. Since the victim forgot to return the car keys before he left the next morning, Derrick’s 11-year-old brother, Johnny Handy, said he would go get the keys.

The victim ate breakfast at home with his mother, Linda Williams, on the morning of Saturday, November 8. He then left the house on a bicycle.

Robbie Jenkins, a cousin of Derrick Handy, walked to a local store at about 8:30 or 9:00 a.m. She observed the defendant driving a white car up and down Girod Street and around the neighborhood; he was accompanied by two other persons who she identified as Teese and Kelo. The car was proceeding very slowly. When she was walking home at about 10:00 a.m., she saw them again, driving on Girod.

Angela Smith resided in the Carver Homes area of Monroe. As she and her daughter walked to the store, she also saw a white car driving slowly. They saw it once on the way to the store and once on the way back. She remarked to her daughter that the occupants appeared to be looking for someone. As Ms. Smith and her daughter walked down Girod Street at about 11:00 a.m., she saw a bicyclist approaching her. At this point, the bwhite car was behind her. Suddenly, the boy on the bicycle jumped off and began running. Ms. Smith observed no gestures or words by the bicyclist toward the car occupants. He had no weapon in his hand. The driver of the white car stopped the vehicle and jumped out, running after the bicyclist. She then heard more than two gunshots. The driver returned to the car and got in on the passenger side; the white car left. Ms. Smith saw the bicyclist lying on the ground, bleeding.

Lucille Young was driving down Girod Street when she saw a boy on a bicycle ahead of her. He dropped the bike in the street in front of her car and began running. Ms. Young then saw the driver of a white car jump out and chase the bicyclist; she thought that they were shooting “pop guns.” She testified that she heard about two shots. Ms. Young stopped her car to remove the bicycle from her path. When the driver came back, he stared at her and got in the passenger side of the white car. Ms. Young testified that she did not see the victim approach the white car; furthermore, she did not see him with a gun or knife.

Johnny Handy was with two friends near a gate on Girod. He saw the victim riding a bicycle toward them; he then saw the white car. The victim jumped off the bike and ran, yelling at Johnny and his friends to run. The young boys ran through a gate; the victim was behind them. Johnny testified that he heard four gunshots. When it was quiet again, he came out of hiding behind a porch and saw the victim lying on the ground, bleeding from his mouth. The victim told Johnny to get his mother.

13 Johnny went to the victim’s house and told Ms. Williams that the victim had been shot. She testified that her son was still alive when she arrived at the crime scene.

By the time the police arrived, a crowd had gathered. The officers found Derrick Handy’s car keys on the ground near the victim. None of the witnesses observed a gun or knife near the spot where the victim was lying. One of the first officers on the scene detected no pulse when he checked on the victim’s condition. Emergency personnel arrived and began CPR. The victim was transported to a hospital where he died from a gunshot wound that entered on the far left flank, near the back. However, the police initially believed that the victim had been shot twice.

The police began taking statements from witnesses. One witness described the shooter as wearing a dark jacket or shirt with red trim.

That afternoon, Detective Roderick Jackson received a telephone call from Ms. Williams. She had received information that the defendant was the shooter; she said that members of her family were out looking for the defendant and might harm him. Detective Jackson knew the defendant’s father, Bobby Cooper, Sr. He called Mr. Cooper and advised him that his son was a possible suspect in a shooting and that people were looking for him to harm him. He asked Mr. Cooper to try to locate the defendant and bring him to the police station.

The defendant, who lived with his father, arrived at the home of his mother, Lagun-da Foster, looking “frightened.” He went to a bedroom and laid down. Mr. Cooper arrived to get the defendant to take him to the police |4station; Ms. Foster accompanied them. En route to the police station, they were stopped by Detective Jackson, who then followed them to the station.

Following their arrival at the police station, Detective Jackson sat with the defendant and his parents in the lobby area of the detective squad room. They waited for the arrival of Detective William Webb; since this was Detective Jackson’s first homicide investigation as a detective, he asked Detective Webb, a more senior detective, to assist in taking the defendant’s statement. Detective Jackson testified that while they waited, he advised the defendant of his rights; the parents disputed this at trial and testified that he told them that the defendant didn’t need a lawyer.

After Detective Webb arrived, the 20-year-old defendant accompanied the detectives to an interrogation room; his parents waited outside. The defendant was advised of his rights; he initialed and signed a rights waiver form. According to the detectives, their general procedure is to first talk informally with the person, then request permission to take a recorded statement. Detective Jackson informed the defendant, who was wearing a dark jacket with red or rust trim, about the description of the shooter’s jacket. The defendant stated that when he shot the victim he was wearing a white T-shirt and a Cowboys cap; he said he had burned that clothing. Having been told at the hospital that the victim was shot two times, Detective Jackson asked the defendant why he shot the victim twice. The defendant replied, “I didn’t shoot the m-f- twice, I shot the m-f-four times.” Detective Jackson testified that the defendant claimed that he and the victim had an altercation the night before the shooting | .^during which the victim shot up the defendant’s car. The defendant further claimed that immediately prior to the shooting, the victim motioned for him to come over and then produced a knife.

The detectives asked the defendant to give them a recorded statement. He refused. At this time, the defendant was placed under arrest and booked on one count of second degree murder.

The defendant filed a motion to suppress his statements to the police. A hearing was held on the motion on November 4, 1998. Detective Jackson was the only witness to testify at the hearing. The motion was denied.

Following a jury trial in July 2001, the defendant was convicted as charged. He was sentenced to the mandatory sentence of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. A timely motion to reconsider sentence was denied. In July 2002, the defendant was granted an out-of-time appeal.

MOTION TO SUPPRESS

The defendant argues that the trial court erred in denying his motion to suppress his statement to the police.

Law

The purpose of a suppression hearing is to determine if evidence should be presented at trial. State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488. At a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, 33,112 (La.App.2d Cir.4/7/00), 756 So.2d 14272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288. Before the state can introduce an inculpa-tory statement made in police custody, it bears the heavy burden of establishing that the defendant received Miranda warnings and that the statement was freely and voluntarily made and not the product of promises, threats, or duress. La. C. Cr. P. art. 703; La. R.S. 15:451; State v. Johnson, 36,014 (La.App.2d Cir.6/12/02), 821 So.2d 652.

A defendant’s right to counsel is guaranteed in La. Const, art. 1, § 13. When counsel is requested, interrogation must cease; officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney. Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1990); State v. Williams, 2001-1650 (La.1/1/02), 831 So.2d 835.

The determination of whether the accused actually invoked his right to counsel is an objective inquiry. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); State v. Payne, 2001-3196 (La.12/4/02), 833 So.2d 927. Invocation of the Miranda right to counsel “requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable police officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, the cessation of questioning is not required. Davis, 512 U.S. at 459, 114 S.Ct. at 2355. A suspect must “unambiguously request” counsel “sufficiently |7clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney” in order to cease custodial interrogation. Davis, 512 U.S. at 459, 114 S.Ct. at 2355.

The admissibility of a confession is a question for the trial judge, whose conclusions on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility should not be overturned on appeal unless they are not supported by the evidence. State v. Richardson, 33,272 (La.App.2d Cir.11/1/00), 779 So.2d 771, writ denied, 2000-3295 (La.10/26/01), 799 So.2d 1151. We place great weight upon the trial court’s factual determinations because of its opportunity to observe witnesses and assess credibility. State v. Roddy, swpra.

Discussion

At the motion to suppress, Detective Jackson testified that he advised the defendant — a 20-year-old adult — of his rights in front of his parents and then again in the interview room after another detective arrived to assist with the interview. He testified that he made no promises to the defendant in return for talking to him. He did not threaten or coerce the defendant. The defendant signed and initialed a rights waiver form. At trial, the defendant’s parents identified their son’s signature on the form.

The detective also testified that after he first advised the defendant of his rights in front of his parents, the defendant’s father made a comment that they might want an attorney later. Detective Jackson testified that he told them that they had that right.

|sThe record supports the trial court’s finding that the state met its burden of proving beyond a reasonable doubt the free and voluntary nature of the defendant’s statement to the police. The testimony of the detective demonstrated that the defendant was adequately advised of his Miranda rights and that he waived those rights. No evidence was presented that the defendant acted under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. Furthermore, the trial judge obviously found that no request for an attorney was made on the defendant’s behalf prior to questioning. The comment of the defendant’s father that they might want a lawyer later falls woefully short of an unambiguous request for counsel which is sufficiently clear so that a reasonable police officer in the circumstances would have understood the statement to be a request for an attorney. Since the trial court’s ruling on the motion to suppress is supported by the evidence, its conclusions on the credibility and weight of testimony relating to the voluntary nature of the confession will not be overturned on appeal.

This assignment of error lacks merit.

STATUS AT TIME OF STATEMENT

In his second assignment of error, the defendant contends that the trial court erred in restricting his ability to present evidence about the totality of the circumstance surrounding the making of his in-culpatory ^statement to the police. Specifically, he claims that he was not allowed to explore whether he was under arrest at the time or if he was misled as to his status and degree of risk.

At the suppression hearing, the defense asked Detective Jackson twice whether the defendant would have been released if he had refused to make a statement. The first time the state objected because the question called for speculation and on the basis of relevancy; the second time as to relevancy. The objections were sustained, and defense counsel requested that his objection to the court’s ruling as to the second instance be noted. However, the defense then went on to elicit from the officer that the defendant was not handcuffed and that he was informed, by way of the rights waiver form, that he was not under arrest. Thus, it cannot be said that the defendant was not allowed to explore his status at this hearing.

During the testimony of the defendant’s father at trial, defense counsel elicited his version of what transpired before Detective Webb arrived. Mr. Cooper testified Detective Jackson did not advise his son of any rights in his presence. The state initially objected when Mr. Cooper began to recount Detective Jackson’s response to his question about what would take place next. The state then stipulated that Detective Jackson said he was going to call Detective Webb to come in and take a statement. |inThus, the defendant obtained the information he sought despite the state’s initial hearsay objection.

Furthermore, at trial, both Detective Jackson and Detective Webb were asked on cross-examination about the defendant’s status. Detective Jackson, the lead detective on the case, testified that the defendant was not under arrest, that he was told he was not under arrest prior to the interview, and that he could have left. Detective Webb, whose only apparent involvement in the case consisted of assisting with the defendant’s interview, testified that he assumed that the defendant was free to go; to the best of his knowledge, the defendant was not under arrest.

Under the circumstances presented here, we find that the defendant was allowed to adequately explore the totality of the circumstances surrounding his statement. This assignment of error has no merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . At trial, the defendant's parents testified that they asked whether they should get an attorney and that Detective Jackson told them that the defendant didn’t need a lawyer because they just wanted to ask him some questions. However, the detective denied that such an exchange took place. To the contrary, he testified that the defendant's father stated that they might want to get a lawyer later and that he told them that would be okay. It is apparent that the jury resolved this credibility call in favor of the detective.

      . Mr. Cooper then testified that before his son was escorted to the interrogation room after Detective Webb arrived, he said they wanted an attorney and he asked if his son was under arrest. When defense counsel asked for the detectives’ response, the state objected. The trial court called counsel up for a brief bench conference. At the conclusion of the conference, the defense made no contemporaneous objection to preserve for appeal any complaint concerning the court’s ruling on this matter. When the defense resumed Mr. Cooper’s direct examination, he testified that he and the defendant's mother were not allowed to go into the interrogation room with their son and that the next time they saw him, he was not free to leave with them.


author: | KOSTELKA, Judge Pro Tempore.

text:
    STATE of Louisiana, Appellee, v. April Dawn WRIGHT, Appellant.
    No. 36,834-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.
    Louisiana Appellate Project, by Paula Corley Marx, Lafayette, Peggy J. Sullivan, Monroe, for Appellant.
    Richard Ieyoub, Attorney General, Paul J. Carmouche, District Attorney, J. Thomas Butler, Bill Edwards, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and KOSTELKA (Pro Tempore), JJ.
   | KOSTELKA, Judge Pro Tempore.

April Dawn Wright (‘Wright”) pled guilty as charged to one count of first degree robbery, La. R.S. 14:64.1. The trial court sentenced her to eighteen years at hard labor without benefit of parole, probation or suspension of sentence. Upon the denial of her motion to reconsider sentence, Wright lodged this appeal contending that the imposed sentence is excessive. We affirm.

Facts

On January 24, 2001, Wright and an accomplice, Joyce McKenzie (“McKenzie”), asked to speak with Margaret Heacock (“Heacock”), the co-owner of Holy Cross Child Placement Agency, as she arrived for work. Heacock recognized Wright as a client of her business who had given up a child for adoption in December of 2000. For the adoption, Wright had allegedly expected a final payment of $10,000 but was given only $2,500. Wright had visited Heacock’s office without incident the day prior to this event. Once the three were in Heaeock’s office, Wright began to hit Heacock, eventually shoving her onto a couch. Wright indicated that she had a gun and threatened to kill Heacock. She forced Heacock to write out a company check for $10,000 before handcuffing her to a filing cabinet. Heacock’s purse, cash, credit cards, car keys and a cell phone were stolen. Before leaving the scene, Wright had Heacock forward the business’s phone calls to the stolen cell phone. Wright and McKenzie drove from the scene in Heacock’s car to a local check-cashing establishment. With the aid of the cell phone, the two were able to cash the check and received the money in | ¿tvrenty-dollar bills. Approximately one month after this event, Wright and McKenzie were arrested in Dallas, Texas and extradited to Louisiana.

Discussion

On appeal, Wright argues that the trial court failed to adequately comply with the provisions of La.C.Cr.P. art. 894.1 and imposed an excessive sentence. However, a review of the grounds set forth in her motion to reconsider sentence shows that Wright failed to raise as an issue the adequacy of the trial court’s compliance with La.C.Cr.P. art. 894.1. Accordingly, she is now precluded from raising this ground for the first time on appeal and is relegated to a review for constitutional excessiveness only. La.C.Cr.P. art. 881.1.

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 fight 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.

A trial court has broad discretion to sentence within the statutory limits. State v. Black, 28,100 (La.App.2d Cir.02/28/96), 669 So.2d 667, writ denied, 96-0836 (La.09/20/96), 679 So.2d 430. Absent a showing of |amanifest abuse of that discretion, a reviewing court may not set aside a sentence. State v. Guzman, 99-1753 (La.05/16/00), 769 So.2d 1158.

Prior to imposing sentence, the district court considered a presentence investigation report which provided detailed information concerning Wright who, at the time of the offense, was twenty-eight years old. The court found Wright to be in need of custodial treatment and that a lesser sentence would deprecate the seriousness of the offense. The court also determined that her conduct manifested deliberate cruelty as she had threatened the victim’s fife, handcuffed her, used threats of actual violence, and caused significant mental injury to the victim who was particularly vulnerable due to her age. The court noted the seriousness of the offense which was instigated and controlled by Wright and involved multiple incidents for which separate sentences were not being imposed. Additionally, the court pointed out that as a result of the guilty plea, the state did not file an habitual offender bill. In mitigation, the court found that Wright had acted under provocation. The court considered Wright’s third felony status with prior convictions for theft, forgery, soliciting for immoral purposes, possession of marijuana, and middle-grade theft for which her probation was revoked.

For the first degree robbery conviction, Wright faced a potential sentencing exposure of not less than three nor more than forty years without benefit of parole, probation or suspension of sentence. La. R.S. 14:64.1. Accordingly, the imposed punishment is less than half of Wright’s potential sentencing exposure. On this record, we do not find constitutional error in the prison term. Wright’s history of larceny-related offenses has, in this Lease, escalated to a crime of violence which she committed without reasonable justification nor remorse. Moreover, Wright is a third felony offender who has obviously failed to benefit from prior sentencing leniency. In these circumstances, we cannot find this mid-range sentence to be either inappropriate for this offender nor grossly disproportionate to the severity of the offense. We affirm the conviction and sentence.

AFFIRMED.

      . Even so, the record before us displays more than sufficient La.C.Cr.P. art. 894.1 compli-anee by the trial court.


author: I, WILLIAMS, Judge.

text:
    Alberta D. GOSEY, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
    No. 36,695-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Alberta D. Gosey, In Proper Peson.
    Walter S. Salley, Shreveport, Joseph M. Lattier, for Appellee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   I, WILLIAMS, Judge.

In this workers’ compensation case, the claimant, Alberta Gosey, appeals a judgment in favor of the employer, General Motors Corporation (“General Motors”). The workers’ compensation judge denied the claim for compensation benefits, finding that claimant had failed to prove by a preponderance of the evidence that she sustained a work-related occupational disease or accident. For the following reasons, we affirm.

FACTS

In January 1999, the claimant was transferred from JCI, a seat-supplier for General Motors, to its main plant for a job as a “drive-off operator.” This job involved driving finished trucks off of the assembly line. According to claimant, she suffered from left knee pain as a result of her employment. She stated that her left knee pain progressed during the six weeks of driving hundreds of trucks off the line each shift. On February 19, 1999, she asked to go to the medical unit for treatment of pain in her left knee, but her request was denied because of a shortage of workers.

On February 22,1999, claimant reported to the plant medical office and was seen by Dr. Braswell, who wrote that she complained of a recurrence of pain in the left knee. Dr. Braswell did not write that claimant had mentioned her knee pain was worse after jumping in and out of trucks. The claimant went home and next returned to work 30 days later in March 1999. Claimant continued working until February 2000, when she took extended sick leave and then retired on “total and permanent disability” in February 2001.

| Jn August 2000, the claimant filed a disputed claim for workers’ compensation benefits against her employer, General Motors. The claimant alleged that she had injured her left knee on February 19, 1999, while in the course and scope of her employment. In the Medical Data portion of her compensation claim form, she identified three doctors who had provided her with medical attention, Dr. William Webb, Dr. Philip Kinnebrew, and Dr. Edwin Si-monton.

In response, General Motors filed an answer denying that claimant had been involved in an accident, suffered any disability, or was entitled to workers’ compensation benefits as a result of any occurrence in the course and scope of her employment. General Motors also asserted that all claims for workers’ compensation benefits had prescribed.

After a hearing, the workers’ compensation judge (WCJ) rendered judgment finding that claimant had failed to prove by a preponderance of the evidence that she sustained a work-related occupational disease or accident and dismissing the claim for compensation benefits. Claimant’s motion to set aside the judgment was denied. The claimant appeals the judgment.

DISCUSSION

The claimant contends the WCJ erred in dismissing her claim for compensation benefits. Claimant argues that her injury or disease was work related because her left knee pain increased after driving trucks on the job.

An appellate court may not set aside a trial court’s finding of fact in 13the absence of manifest error or unless it is clearly wrong. The reviewing court must consider the record in its entirety to determine whether the trial court’s finding was manifestly erroneous. Cole v. Department of Public Safety, 01-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State of Louisiana, 617 So.2d 880 (La.1993). In applying the manifest error standard, an appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was reasonable. Cox v. Roofing Supply, Inc., 36,275 (La.App.2d Cir.8/14/02), 825 So.2d 1271.

In this workers’ compensation case, the following principles set forth in Cox, supra, are pertinent:

An employee is entitled to compensation benefits if he receives a personal injury by accident “arising out of and in the course of his employment.” La. R.S. 23:1031A. A claimant asserting an occupational disease must prove by a preponderance of the evidence that he suffers a disability which is related to the employment-related disease, that he contracted the disease during the course and scope of his employment, and that the disease is a result of the work performed. La. R.S. 13:1031.1A; Billington v. General Motors, Corp., 31,585 (La.App. 2 Cir. 2/24/99), 728 So.2d 966. The causal link between the employee’s occupational disease and work-related duties must be established by a reasonable probability. Shields v. GNB Technologies, Inc., 33,911 (La. App. 2 Cir. 10/4/00), 768 So.2d 774. The claimant will fail if he shows only a possibility that the employment caused the disease, or that other causes not related to the employment are just as likely to have caused the disease. Id.

Under the provisions of LSA-R.S. 23:1031.1(B), an occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Furthermore, arthritis of any type is specifically excluded from the 1 ¿classification of an occupational disease for purposes of R.S. 23:1031.1.

In the present case, while representing herself at the hearing on her claim for benefits, the claimant presented medical records and called Octavia Thomas and Ravis Henderson as witnesses. Thomas testified that she was a “coordinator” at General Motors and worked with claimant in January and February 1999. Thomas stated that claimant’s job involved driving trucks off the line to be picked up by another operator for a road test. Claimant was the only employee on the line performing this job on that shift, and the plant produced approximately 380 trucks per night. Thomas indicated that the trucks, although finished, did not have any steps on the side of the cab, and that the “high rider” trucks were a “problem for getting in and out.” Thomas testified that she did not remember whether or not the claimant had requested a break “to go to Medical” on February 19,1999.

Henderson testified that she met claimant in 1998, when they both worked at JCI. Henderson stated that claimant was “a good worker in the sense that she will go the extra mile to do the job.” Henderson testified that claimant had complained about the job of driving trucks off the line because it was “just hurting her to jump out of the trucks.” Henderson admitted that in February 1999 she did not work in the same department as claimant at General Motors, and that on February 19, 1999, the date of the alleged incident, she was not present at claimant’s location and did not have any specific knowledge of a work accident.

Claimant testified that her left knee pain had increased over the weeks that she worked driving trucks off the line, causing her to seek medical | ^attention. She stated that she sought compensation because her injury was caused by “jumping out of those tall trucks.” On cross examination, claimant admitted to having problems with her left knee prior to the alleged incident in February 1999. She explained that she fell at work in December 1994, and even though the incident report mentioned only her right knee, she asserted that the report should have indicated that both of her knees were injured. Claimant stated that falling incidents in 1996 or 1997 “could have” caused her left knee pain to return or get worse.

Claimant acknowledged that she experienced left knee pain in 1996 that persisted up to the time she went to see Dr. Kinne-brew in April 1998. After x-rays were taken, Dr. Kinnebrew informed claimant that the results showed arthritis in her left knee. Two months later, claimant was seen by Dr. Simonton, who also diagnosed her with arthritis in her left knee.

The claimant first saw Dr. Webb in June 1999 after the alleged incident. Dr. Webb’s report did not mention the claimant had told him that her left knee problem was related to getting in and out of trucks at General Motors. Claimant could not explain why this information was not in Dr. Webb’s report. Dr. Webb diagnosed claimant with osteoarthritis in her left knee. However, claimant asserted that she did not believe that Dr. Webb, Dr. Simonton, or Dr. Kinnebrew were correct in their diagnosis of her condition as arthritis.

In February 2000, Dr. Webb performed surgery on claimant’s left knee. Dr. Webb reported that he had found severe arthritis in her left knee. Claimant admitted that Dr. Webb had told her that he could not relate her | ¿left knee pain to any accident or activity at work.

Randy Weeks, who worked in claims administration at the General Motors plant, testified that claimant had received sick leave and retirement benefits that had been funded by the employer. Weeks specifically denied that he had ever told the claimant or anyone else at the plant that her alleged left knee injury was related to a work accident on February 19, 1999.

To support her contention that General Motors had recognized her left knee pain as work related, claimant refers to a printout of a computer screen displaying the words ‘Work Related Case?” and a corresponding filled-in space. However, Weeks testified that the printed screen was obtained from the employer’s medical unit and not from the administrative office, which made the decisions concerning workers’ compensation benefits. While the claimant’s apparent confusion is understandable, the record supports a finding that the print-out was generated in response to preliminary information supplied by claimant herself that she was injured while working, and does not represent a determination of entitlement to workers’ compensation benefits.

Although the claimant has expressed her adamant disagreement with the diagnoses made by each of her treating physicians, the medical evidence presented fully supports the diagnosis of arthritis in claimant’s left knee. Dr. Webb’s surgery confirmed this diagnosis. As we have noted, arthritis is specifically excluded as an occupational disease pursuant to the workers’ compensation statute.

In addition, neither the claimant nor her witnesses described the |7occurrence of a work accident during their testimony. Rather, the record demonstrates that claimant had experienced persistent left knee pain for several years prior to her last job. Based upon the medical evidence and the testimony presented, we find that the WCJ reasonably concluded that the claimant failed to establish that her left knee pain was the result of either an accident which occurred at work or an occupational disease. The claimant’s contentions lack merit.

CONCLUSION

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to the appellant, Alberta Gosey.

AFFIRMED.