author: 1 .THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Anthony ROBINSON.
    No. 02-KA-1253.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 8, 2003.

      Paul D. Connick, Jr., District Attorney, Alan D. Alario, II, Terry M. Boudreaux, Assistant District Attorneys, 24th Judicial District Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Margaret S. Sollars, Thibodaux, LA, for Defendant-Appellant.
    Anthony Robinson, Angola, LA, in Proper Person.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and CLARENCE E. McMANUS.
   1 .THOMAS F. DALEY, Judge.

Defendant, Anthony Robinson, appeals his conviction of possession with the intent to distribute cocaine, a violation of LSA-R.S. 40:967(A). On appeal, he assigns the following four errors of the trial court:

1. The evidence was insufficient to support this conviction;
2. The Court committed reversible error by not allowing the defendant to fully impeach the arresting officer with his initial report, nor to let it be published before the jury;
3. Evidence presented by the State in the multiple offender hearing was inadequate;
4. Mr. Robinson was sentenced excessively, particularly when the Court failed to articulate any reasons for such a harsh sentence.

We affirm Mr. Robinson’s conviction and sentence.

FACTS

Officer LaBroussa of the Kenner Police Department testified that he was on routine patrol in the 1000 block of 31st Street in Kenner on the night of October 25, 2000, when he observed the defendant driving a Cadillac headed east on the same street. The defendant was not wearing a seatbelt and his vehicle’s license plate |3was not illuminated. Officer LaBroussa attempted to effectuate a vehicle stop. The officer sounded his siren and turned on his unit’s overhead lights, but the driver of the Cadillac refused to stop and accelerated to 45 mph in a 20 mph speed zone. As Officer LaBroussa pursued the vehicle, it slowed down for the driver to turn the corner. It was at this time, according to the officer, that a plastic bag was discarded from the passenger side window. The vehicle stopped when another patrol unit blocked its path. The defendant and a female passenger, later identified as Shirley Ramsey, were detained. Officer LaBroussa recovered the discarded plastic bag, which appeared to contain rock cocaine. The substance field tested positive for cocaine. The defendant and Ms. Ramsey were arrested. Officer LaBroussa wrote a report of the incident.

The State also presented the testimony of Officer Bruce Harrison as an expert in the factors that constitute distribution of narcotics. The defendant presented no witnesses.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the evidence presented by the State was insufficient to convict him of the charged offense.

When the defendant challenges sufficiency of the evidence, this Court must decide whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of the crime beyond a reasonable doubt. In applying this standard, the reviewing court will not assess credibility nor reweigh the evidence. In the absence of internal contradiction or irreconcilable conflict with physical Levidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. In cases involving circumstantial evidence, the trial judge must instruct the jurors that the evidence must exclude every reasonable hypothesis of innocence. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt.

In this case the defendant was charged with possession with the intent to distribute cocaine. To prove possession with the intent to distribute cocaine, the State must show the defendant knowingly or intentionally possessed the drugs and he did so with the specific intent to distribute them. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” Specific intent may be inferred from the circumstances of a transaction and from the actions of the accused. Further, specific intent is a legal conclusion to be resolved by the fact-finder.

The intent to distribute may be established by proving circumstances surrounding defendant’s possession which gave rise to an inference of such intent. Such circumstances include (1) previous attempts to distribute; (2) whether the drugs are in a form consistent with distribution; (3) the amount of the drugs; (4) ^expert testimony indicating the amount of the drugs recovered is not consistent with personal use; and (5) paraphernalia evidencing an intent to distribute.

Defendant argues that the State faded to prove he knew the drugs were in the car or that he exercised control over them, elements essential to establish “possession.” He argues that no direct evidence was presented at trial and the circumstantial evidence was insufficient, because the sole fact witness was not credible. Additionally he alleges that the only indication of possible guilty knowledge was his flight from officers and this could reasonably be explained as his attempt to avoid a traffic citation. Defendant suggests as a hypothesis of his innocence that Ms. Ramsey possessed the cocaine in the car and she discarded it from her window.

The State presented the testimony of Officer LaBroussa to prove its case regarding the element of “possession.” Officer LaBroussa testified that he observed the actions of the defendant before and after the contraband was discarded. He testified that at times during this incident, he was able to observe the occupants of defendant’s vehicle through the driver and passenger side windows. He stated that before the disposal of the narcotics, the defendant fled upon becoming aware of the officer’s presence. Officer LaBrous-sa said that during the chase, the defendant would look in the rearview mirror and then look downward inside the vehicle. He further testified that although he did not see the defendant’s hand protrude from the window when the drugs were discarded from the passenger window, he did observe the defendant “fidgeting, turning his upper torso and reaching across to the passenger side window immediately before the drugs were abandoned.” Additionally, the officer testified that during this time, the passenger did not turn Rher body, but merely remained facing forward in her seat. According to Officer LaB-roussa, the defendant continued to flee until he was stopped by another police unit, which blocked his path. Officer LaB-roussa testified that because of defendant’s actions, he was of the opinion that the defendant discarded the drugs.

The jury apparently believed the testimony of the officer who witnessed this incident and they concluded that the defendant’s actions shortly before and after the abandonment of the drugs indicated that he, and not Ms. Ramsey, physically possessed the cocaine that was discarded from the vehicle. In this regard, the jury apparently rejected defendant’s alternative hypothesis, that Ms. Ramsey physically possessed the drugs, as unreasonable. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence.

In the first pro se argument, defendant argues that the State’s evidence concerning “distribution” was insufficient to establish this element of the offense charged. He reasons that the quantity of drugs recovered could have been merely for personal use, by one heavy user or shared between two users (i.e., the two occupants of his vehicle).

Officer Bruce Harrison of the Jefferson Parish Sheriffs Office Narcotics Unit was qualified as an expert in the use, packaging, distribution, and value of narcotics. It was Officer Harrison’s expert opinion that because of the quantity of drugs (16 rocks), the packaging of the drugs (individual doses), and the value of the drugs seized ($160.00-$320.00), defendant was involved in distribution of narcotics and not possession for personal use. According to Officer Harrison, the quantity of drugs involved in this ease was in excess of what a “heavy user” would consume in a day. He testified that if this amount of drugs were consumed by an individual on a daily basis, he would be unable to function in society. According to Officer Harrison, a user generally possesses a few rocks, which he consumes, |7and then he buys more. It was also his experience thát someone using this quantity of drugs would normally not have the amount of money required to purchase this quantity of drugs. On cross examination, Officer Harrison said it was possible, but not likely, and not part of his experience that this amount of crack cocaine packaged in this way was for individual use and not for distribution.

Based upon this testimony, the jury could have reasonably concluded that the drugs recovered in this case were intended for distribution and not personal use. Under the Jackson analysis, the defendant’s conviction was based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the State proved the essential elements of the crime of possession of cocaine with the intent to distribute beyond a reasonable doubt.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends that the trial judge erred in restricting use of the officer’s police report for cross-examination of the State’s only fact witness, Officer LaBrous-sa, and in precluding defendant from offering that document into evidence. He alleges that his restriction in the use of the report and denial of the right to have the document viewed by the jury denied his due process right of confrontation.

The United States Constitution, Sixth Amendment, guarantees the right of the accused in a criminal prosecution “to be confronted with witnesses against him.” The Louisiana Constitution, Article I, § 16 also has a confrontation clause that specifically affords the defendant a right to “cross-examine the witnesses against him.” The cross-examiner is not only permitted to delve into the [¿witness’s story to test his perceptions and memory, but has traditionally been allowed to impeach the witness.

Defendant argues that Officer LaBrous-sa’s credibility was at issue. In particular, the defendant sought to highlight the fact that his testimony on direct examination, that he saw defendant “fidgeting” before discarding the contraband, was omitted from the police report. Additionally, defendant sought to illustrate that the officer’s observation was impaired at the time of the offense because the report indicates that the defendant’s rear car window was covered in cellophane. Finally, the defendant argues the report bolsters his defense in that the report contains a statement indicating the officer did not know' who discarded the contraband.

Contrary to defendant’s assertion that he was restricted in using the police report, the record indicates that he clearly used the contents of the police report in his cross examination of Officer LaBrous-sa.

Defendant first argues that he should have been allowed to use the police report to impeach the officer’s credibility and that on this basis the report would have been admissible.

The credibility of a witness may be attacked by any party. LSA-C.E. art. 607(A). In this regard, prior inconsistent statements and evidence contradicting the witness’s testimony may be used to impeach the witness’s credibility. A distinct foundation must be laid before evidence of a prior inconsistent statement is admissible to impeach a witness. The witness’s attention must be fairly directed to the particular statement and he must be given an opportunity to admit the fact of the prior inconsistent statement.

lain this case the officer admitted that certain details, such as his observation that the defendant was “fidgeting” immediately prior to the contraband’s discard, were omitted from his report. The trial court, in denying the motion, distinguished the omission from an inconsistent statement. Defendant failed to establish a prior inconsistency for impeachment purposes. Therefore, the police report was not admissible under LSA-C.E. art. 607. The jury, however, clearly heard the officer explain that he had not included this information in the report.

Defendant, in his pro se supplemental brief, relies upon State v. Gabriel, 450 So.2d 611 (La.1984), to argue that the police report was admissible. In Gabriel, defendant’s identification was an issue at trial. Following the robbery of the homestead, an off-duty officer gave chase after the vehicle containing the perpetrators. It was on this basis that the witness indicated to the jury he was able to identify the defendant driver of the get away car. He also testified that he later confronted defendant and his two accomplices at police headquarters, when he turned in his notes, a fact unknown to the defense before trial. When questioned at trial as to the basis of his identification of the defendant (i.e., the commission of the crime or the subsequent meeting at headquarters), the officer testified that he identified the perpetrators of the robbery, by face, on the date he went to headquarters and this fact was contained in the police report. An in camera inspection of the report did not support the officer’s trial testimony. The Supreme Court concluded that since the police report showed an inconsistency in the officer’s testimony, the report should have been disclosed for purposes of establishing the inconsistency. The present case is distinguishable from Gabriel, in that no prior inconsistency was established in this case.

Defendant also argues that he should have been allowed to use the police report to attack the officer’s credibility regarding the officer’s alleged observations on the night of this offense. In particular, the defendant argues that the police Imreport indicates that the rear window of the defendant’s vehicle was covered in cellophane, thus obstructing the officer’s view of the defendant’s actions inside the vehicle.

The record reflects that defense counsel questioned Officer LaBroussa regarding the missing rear auto glass and the witness testified that he could not be sure whether or not the glass was missing. At that time, defense counsel made no attempt to use the report, either to refresh the witness’s memory (LSA-C.E. art. 812), or to develop a foundation for impeachment. LSA-C.E. arts. 607, 613. Defendant’s allegation that he was not allowed full cross-examination of this witness with the aid of the police report has no merit.

Defendant argues that the trial court erred in refusing to admit the police report as a business record under LSA-C.E. art. 808, reasoning that this evidentiary rule is intended to prevent a police report from being used in lieu of the officer’s testimony.

At the conclusion of the cross-examination of Officer LaBroussa, defense counsel moved to admit the police report into evidence. The State objected. The defendant alleged it was admissible as a “business record exception” in that it was prepared in the ordinary course of business. The court ruled that the document was inadmissible.

LSA-C.E. art. 803(5) states: “Public records and reports which are specifically excluded by Article 803(8)(b) shall not qualify as an exception to the hearsay rule.” Investigative reports by police and other law enforcement personnel are specifically excluded as business records under LSA-C.E. art. 803(8)(b). See State v. Casey, 99-0023 (La.01/26/00), 775 So.2d 1022, 1031. Therefore, the trial court’s ruling was not error.

Finally, defendant argues that the police report, although hearsay, should have nonetheless been admitted because it was reliable, and to exclude it | ¶ compromised the defendant’s right to present a defense. He cites State v. Gremillion, 542 So.2d 1074 (La.1989), as support. Gremillion, however, did not concern police reports, but a different exception to the hearsay rule involving statements made by the victim. Gremillion is not applicable to the facts of the present case.

Assignment of Error Two lacks merit.

ASSIGNMENT OF ERROR THREE

By this Assignment of Error, defendant seeks to have the multiple offender adjudication and sentence vacated. He reasons that the predicate offenses used by the State for enhancement purposes were defective, because during each of those proceedings, he was not advised of the possibility of further prosecutions under the Multiple Offender Statute (LSA-R.S. 15:529.1), nor was he advised of the sentencing exposure for the predicate offenses.

The record indicates that the State filed a multiple bill alleging that defendant was a third felony offender. The two predicate convictions were (1) a guilty plea in Case No. 93-2908, in Division “S” of the Twenty Fourth Judicial District Court for the Parish of Jefferson, for Possession of Cocaine with the intent to Distribute (LSA-R.S. 40:967(A)), which was entered on September 23, 1993, and (2) a guilty plea in Case No. 94-3319, in Division “S” of the Twenty Fourth Judicial District Court for the Parish of Jefferson, for the knowing and intentional acquisition of a controlled dangerous substance by means of fraud and deceit (LSA-R.S. 40:971), which was entered on September 27, 1994.

In the response to the bill, defendant alleged that the guilty pleas were defective, specifically because the defendant was not advised that the convictions could be used for future enhancement purposes.

1^A hearing was held on the multiple bill. The defendant orally moved for a dismissal of the multiple offender proceedings. Defendant objected to the introduction of his prior guilty pleas on the basis that the guilty pleas were not knowing and voluntary because he was not first advised of the “sentencing range” and “the consequences of being made a habitual offender.” At the conclusion of the hearing, defendant again objected to the State’s two exhibits. The trial judge adjudicated the defendant a triple offender under the Multiple Offender Statute (LSA-R.S. 15:529.1(A)(2)(b)(ii)), vacated the prior sentence and re-sentenced him to life imprisonment as a third felony offender.

To prove a defendant is a habitual offender, the State must initially prove the prior felony conviction(s) and that defendant is the same person. When the State relies on a prior conviction that is based on a guilty plea to prove defendant’s multiple offender status and defendant denies the allegations of the multiple bill, the State has the burden of proving the existence of the prior guilty plea and that the defendant’s plea was counseled. State v. Shelton, 621 So.2d 769, 779-780 (La.1993). Once the State meets this burden, the defendant must produce some affirmative evidence of an infringement of his rights or of a procedural irregularity. If the defendant meets this burden, the burden shifts back to the State to prove the constitutionality of the plea, i.e., that it was knowing and voluntary. State v. Shelton, supra. The State can meet its final burden by producing a “perfect transcript” of articulated waiver of the three core rights enumerated in Boykin, namely (1) right to trial by jury, (2) defendant’s privilege against self-incrimination, and (3) his right to confront his accusers.

In this case, the defendant’s identity was established at the multiple bill hearing by the use of the expert testimony of a fingerprint expert. Defendant, 1^however, denied the allegations of the multiple bill, and attacked the predicate offenses, which are based on 1993 and 1994 guilty pleas. The State’s exhibits showed that defendant was represented by counsel at both pleas. Therefore, the State met its initial burden under Shelton of proving the existence of the pleas and defendant’s representation by counsel. The burden then shifted back to defendant to prove “by affirmative evidence, an infringement of his rights or of a procedural irregularity.” The defendant argues that the evidence offered by the State was insufficient to prove he was informed that these pleas could be used for enhancement purposes. He also alleges that he was not advised of his sentencing exposure (minimum and maximum sentence) for each offense. For the reasons herein discussed, defendant failed to meet his burden under Shelton.

Defendant correctly asserts that the documents do not contain evidence that he was advised of sentencing range or enhancement possibilities. However, these alleged defects do not render the pleas defective for enhancement purposes. The two guilty pleas (occurring in 1993 and 1994) pre-dated the enactment of LSA-C.Cr.P. art. 556.1. At the time of these pleas, no requirement existed that defendant be advised of the possibility of enhancement. The failure to so advise defendant does not render the predicate convictions defective for enhancement purposes. See State v. Sarrio, 01-543, pp. 28-29 (La.App. 5 Cir. 11/27/01), 803 So.2d 212, 224.

Defendant also claims that the predicate convictions are defective for purposes of the multiple offender proceeding, because he was not informed of sentencing range at the time he entered these pleas. This argument likewise lacks merit. See State v. Anderson, 98-2977 (La.3/19/99), 732 So.2d 517.

|14For these reasons, the defendant’s predicate guilty pleas were not constitutionally defective. The trial judge correctly found that the State met its burden of proving defendant was a third felony offender.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant contends that his life sentence as a third felony offender is excessive.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment.

The mandatory minimum sentences provided for under the Habitual Offender Statute are presumed to be constitutional. LSA-R.S. 15:529.1; State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672. In order to rebut the presumption that the mandatory minimum sentence is constitutional, defendant must clearly and convincingly show that he is exceptional; that is, because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Johnson, supra. Downward departures from the minimum sentence under the Habitual Offender Statute should occur only in rare situations. State v. Johnson, supra. A downward departure from the minimum sentence mandated by the Habitual Offender Statute is warranted if the trial court determines that the minimum sentence mandated makes no measurable contribution to acceptable goals of punishment or that the sentence amounts to nothing more than a purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the offense. If a downward departure is |1swarranted, the trial judge shall sentence the defendant to the longest sentence that is not constitutionally excessive. State v. Johnson, 709 So.2d at 677.

Defendant was found guilty of possession of cocaine with intent to distribute (LSA-R.S. 40:967(A)), and was adjudicated a third felony offender. At the time of the commission of the present offense, the sentencing range for a third felony offender, with an underlying conviction for a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for more than five years, was imprisonment “for the remainder of his natural life, without benefit of parole, probation or suspension of sentence.” LSA-R.S. 15:529.1(A)(l)(b)(ii). The defendant was sentenced to life imprisonment, without benefit of parole, probation, or suspension of sentence for five years. Hence, the sentence imposed was the mandatory minimum sentence prescribed by the Habitual Offender Law. LSA-R.S. 15:529.1(A)(l)(b)(ii).

Defendant alleges on appeal that the trial court erred in summarily sentencing him to life imprisonment, without giving reasons, and without taking into account mitigating factors such as his young age (33 years), his potential for rehabilitation, his remorse and the fact that he was the father of, and supporting six young children.

In State v. Jones, the court noted that in the cases of life sentences imposed upon multiple offenders, failure to articulate reasons is not error. The court reasoned that “[ajrticulating reasons or factors would be an exercise in futility since the court has no discretion.”

Defendant cites State v. Randall, 98-1763 (La.App. 3 Cir. 6/9/99), 741 So.2d 852 in support of his position that his young age should have qualified him for a downward departure, but that portion of the case was subsequently reversed li«by the Louisiana Supreme Court. State v. Randall, 99-2476 (La.12/15/00), 776 So.2d 424, 425.

Moreover, defendant’s remorse, potential for rehabilitation and family obligations do not appear to be “clear and convincing evidence” that he is a “victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, 709 So.2d at 676. Additionally, the facts of this case warrant the sentence imposed. The defendant has numerous arrests and at least three felony drug convictions. Defendant’s repeated drug violations and other criminal behavior are exactly the type of conduct the legislature intended to punish when it originally enacted the multiple offender sentencing provisions.

ERROR PATENT DISCUSSION

The trial judge failed to advise the defendant of the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8. We hereby remand the matter for the trial court to advise the defendant regarding this issue and include evidence of such notice in the record.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . Following the State's case, Shirley Ramsey moved for and was granted a directed verdict of acquittal. The charges against Ms. Ramsey were nolle prossed on July 17, 2001. This appeal only involves Anthony Robinson.

      . Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Mitchell, 99-3342, p. 9 (La. 10/17/00), 772 So.2d 78, 82.

      . State v. Marcantel, 00-1629, p. 14 (La.4/3/02), 815 So.2d 50, 56.

      . State v. Ruffin, 02-798, p. 10 (La.App. 5 Cir. 12/30/02), 836 So.2d 625.

      . State v. Williams, 99-223, pp. 9-10 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 608.

      . LSA-R.S. 15:438; State v. Mitchell, 772 So.2d at 83.

      . State v. Ortiz, 96-1609, p. 22 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Rogers, 99-1378, p. 8 (La.App. 5 Cir. 11/28/00), 772 So.2d 960, 964, writ denied, 01-0204 (La.12/7/01), 802 So.2d 641.

      . LSA-R.S. 40:967; State v. Snavely, 99-1223, pp. 16-17 (La.App. 5 Cir. 4/12/00), 759 So.2d 950, 958, writ denied, 00-1439 (La.2/16/01), 785 So.2d 840.

      . LSA-R.S. 14:10(1); State v. Mitchell, 772 So.2d 78, 82; State v. Coleman, 02-345, p. 6 (La.App. 5 Cir. 9/18/02), 829 So.2d 468, 471.

      . State v. Graham, 420 So.2d at 1128; State v. Meyers, 95-750, p. 10 (La.App. 5 Cir. 11/26/96), 683 So.2d 1378, 1383, writ denied, 97-0234 (La.6/20/97), 695 So.2d 1350.

      . State v. Hearold, 603 So.2d 731, 735 (La.1992).

      .See discussion, Assignment of Error Number Two, infra.

      . Headlong flight is the consummate act of evasion and although not necessarily indicative of wrongdoing, it is certainly suggestive of the same. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

      . State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983); State v. Lewis, 98-672, p. 10 (La.App. 5 Cir. 3/10/99), 732 So.2d 556, 560, writ denied, 99-2818 (La.4/20/00), 760 So.2d 334.

      . State v. Casey, 99-23, pp. 15-16 (La.1/26/00), 775 So.2d 1022, 1030, cert denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

      . State v. Nash, 475 So.2d 752, 754 (La.1985); State v. Charles, 00-1586, pp. 8-9 (La. App. 5 Cir. 6/27/01), 790 So.2d 705, 708.

      . LSA-C.E. art. 607(D); State v. Johnson, 01-842, p. 19 (La.App. 5 Cir. 2/13/02), 812 So.2d 106, 115.

      . LSA-C.E. art. 613; State v. Johnson, 812 So.2d at 106, 116,

      . State v. Johnson, supra; State v. Jarvis, 97-1174 (La.App. 5 Cir. 4/9/98), 710 So.2d 831, 835, writ denied, 98-2219 (La.1/8/99), 734 So.2d 1222.

      .At the original sentencing, the State indicated defendant would be charged as a third felony offender, not a fourth felony offender, as alleged by defendant on appeal. (R., p. 177; defense brief, p. 14).

      . LSA-R.S. 15:529.1; State v. Zachary, 01-3191, p. 5 (La. 10/25/02), 829 So.2d 405, 407; State v. Mims, 00-1507, pp. 11-12 (La.App. 5 Cir. 12/26/01), 806 So.2d 760, 766.

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

      . The waiver form, which was signed by defendant, does state, "I understand all of the possible legal consequences of pleading guilty, and wish to plead guilty at this time.”

      . State v. Washington, 00-301 (La.App. 5 Cir. 9/26/00), 769 So.2d 1235, writs denied, 00-2971 and 00-3041 (La.9/28/01), 798 So.2d 106 and 798 So.2d 108.

      . See footnote 7, infra.

      . Defendant makes no argument on appeal regarding recent ameliorative changes in sentencing provided by 2001 La. Acts 403, although that argument was presented in the district court.

      . 31,613, p. 46 (La.App. 2 Cir. 4/1/99), 733 So.2d 127, 146, writs denied, 99-1185 (La.10/1/99), 748 So.2d 434 and 00-0477 (La.1/26/01), 781 So.2d 1256,

      . This offense occurred prior to the enactment of 2001 La. Acts 403, which amended LSA-R.S. 15:529.1.


source: Caselaw Access Project

author: | T BROWN, C.J.

license: Public Domain

text:
    Jessie K. YOUNG, Plaintiff-2nd Appellant, v. Thomas R. BROWN, Defendant-Appellee, and Allstate Insurance Company, Defendant-1st Appellant.
    No. 37,053-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.
    Rountree, Cox, Guin, & Achee By Dale G. Cox, Shreveport, for 1st Appellant, Allstate Insurance Co.
    William D. Hall, for 2nd Appellant, Jessie Keith Young.

      Zelda Tucker, Shreveport, for Appellee, Thomas R. Brown.
    Before BROWN, STEWART, and KOSTELKA (Pro Tempore), JJ.
   | T BROWN, C.J.

According to the trial court, “[W]hat this case is about is two drunks going bump in the night versus an intentional effort at injuring.” One drunk was armed, the other was shot. Plaintiff, Jessie Keith Young, filed suit against the person who shot him, Thomas R. Brown, and Brown’s insurer, Allstate Insurance Company (“Allstate”). Brown was charged with and pled guilty to negligent injuring. In an appeal from a grant of summary judgment, this court reversed and remanded for trial to determine whether the injuries resulted from an intentional act, as opposed to an unintentional criminal act, such as negligent injuring. Young v. Brown, 27,018 (La.App.2d Cir.06/21/95), 658 So.2d 750, writ denied, 95-1811 (La.10/27/95), 662 So.2d 1. Finding that Brown did not intend to shoot anyone, the trial court rendered judgment in favor of Young, allocating 35% fault to Young and 65% fault to Brown. Both Allstate and Young have appealed. We affirm.

Factual Background

Around 1:30 a.m. on June 12, 1993, Brown drove Ruth Yates home following a night of barroom revelry. They were sitting in Brown’s pickup truck on the street in front of Yates’ home when Young and a group of his friends parked in Yates’ driveway. Young and Yates knew each other. Young, who also had been drinking heavily, went to the passenger’s side of Brown’s truck and began to argue with Yates. The quarreling escalated, and Young grabbed the passenger’s side windowsill of the truck. At this point, Brown, who did not know Young, got out of his truck armed with a loaded 1 ?,22 caliber revolver. As Brown walked around the front of his truck, Young’s friends came toward him. Brown fired what he described as a warning shot into the pavement. Young’s friends quickly dispersed. Hearing the gunshot, Young fled around the front of the truck and collided with Brown. The gun discharged and Young was shot.

According to Brown, immediately after Young was shot, one of Young’s friends ran back to Brown and started hitting him. While he was being struck, Brown claims to have put the gun away so no one else would be shot. Brown then fled the scene and went home. Young was taken to the LSU Medical Center emergency room, where he underwent colon surgery and was hospitalized for 18 days. Later that same morning, Brown surrendered to the Shreveport police. He was charged with and pled guilty to negligent injuring.

Procedural History

Young filed a damage lawsuit against Brown and Allstate. At the time of the injury, Brown was covered by a homeowner’s and public liability insurance policy written by Allstate. This policy excluded damages resulting from an insured’s intentional or criminal acts.

Based on the policy exclusion for “criminal” acts, Allstate moved for summary judgment. Referencing Brown’s guilty plea to the charge of negligent injuring, Allstate argued that the acts leading to Young’s injury were criminal in nature, and therefore coverage was excluded under the policy. The trial court granted summary judgment in favor of Allstate. Young appealed and this court reversed, finding that while the policy clearly denies coverage for intentional acts that cause injury and for injuries 1 ^specifically intended by the insured, there was coverage for non-intentional, inadvertent acts of criminal negligence. Young, supra.

On remand, it was stipulated that the claim for damages did not exceed $50,000. A bench trial was held on the issue of whether Brown intentionally shot Young. Brown and Shreveport Police Officer S.W. Plunkett, who investigated the incident, testified at trial. Young, who was incarcerated on drug charges in Bienville Parish, testified via deposition. Allstate retained Dr. Stephen Cogswell, a forensic pathologist, to reconstruct the shooting. He testified by video deposition.

After closing arguments, the trial court ruled in favor of Young, awarding damages at the stipulated limit of $50,000, and allocated 35% fault to Young and 65% fault to Brown. Accordingly, Young was awarded $32,500 in damages. Costs were apportioned according to the assigned percentages of fault. Allstate filed the instant suspensive appeal. Young filed a devolu-tive appeal questioning the allocation of any fault to himself.

Discussion

Standard of Review

If a trial court’s findings of fact are reasonable, a reviewing court may not reverse such findings even if it is convinced that had it been sitting as trier of fact, it would have weighed the evidence differently. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993); Housley v. Cerise, 579 So.2d 973 (La.1991); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Intentional Acts Exclusion

Allstate’s policy at issue in the instant case states in part:

|4We do not cover any bodily injury or property damage which may reasonably be expected to result from the intentional or criminal acts of an insured person or which is in fact intended by an insured person.

The question presented is whether Brown intended to cause Young’s injuries. As with any exclusion in an insurance policy, the insurer bears the burden of proving that the intentional injury provision is applicable. Great American Insurance Co. v. Gaspard, 608 So.2d 981 (La.1992); Breland v. Schilling, 550 So.2d 609 (La.1989).

In Pique v. Saia, 450 So.2d 654, 655 (La.1984), the supreme court defined what it meant by intentional injury:

An injury is intentional, i.e., the product of an intentional act, only when the person who acts either consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to the result. Bazley v. Tortorich, 397 So.2d 475 (La.1981); W. Prosser, Law of Torts § 8 (4th ed.1971); Restatement (Second) of Torts, American Law Institute § 8A (1965).

The test enunciated in Pique was subsequently modified in Breland, supra. In Breland, the defendant struck plaintiff in the jaw with his fist during a ball game. The Breland court reasoned that the subjective intent of the insured is the key and not what the average or ordinary reasonable person would expect or intend. (Emphasis added). An act is intended if the perpetrator desires the results of his action or he believes that the results are substantially certain to occur. Breland, supra, quoting United Servs. Auto. Ass’n v. Elitzky, 358 Pa.Super. 362, 517 A.2d 982, 989 (1986).

Allstate argues that Brown’s insurance policy did not cover him for Young’s claims because Brown intentionally shot and injured Young. Allstate notes that Brown, who was 6' 1" and weighed 260 pounds, was a | ¡¡much larger man than Young, who was 5' 6" and weighed 167 pounds. Brown was also the only participant in the incident who was armed. It points out that after Brown fired his first shot into the pavement, he cocked the hammer, pulled the trigger, and used his thumb to hold the hammer back. Thus, the revolver would instantly fire if he released the hammer. The gun was positioned in this way, ie., ready to easily discharge, when Brown faced Young. Allstate argues that the manner in which Brown handled the gun was so reckless that it was substantially certain to fire.

When Young was shot, the bullet entered Young’s left lower abdomen and traveled upward and to the right at a 45 degree angle; the bullet exited Young’s back at the left rear shoulder blade. One of the issues at trial was the position of Brown and Young at the time of the shooting. Dr. Cogswell opined that if both men were standing and in physical contact at the time the gun was discharged, the bullet trajectory would have been either horizontal or downward which is inconsistent with the actual trajectory.

Dr. Cogswell believed that Brown was standing over Young, who was lying prostrate on the ground when he was shot. Both of the opposing parties, Brown and Young, testified that they were standing when the shot was fired. We note that none of Young’s friends or Ms. Yates testified. The trial court rejected Dr. Cogs-well’s account and found that the angle of the gun itself was the critical factor. Brown was stooped as he came around the front of his truck and collided with Young. Thus, the gun could have been pointed upward.

| ^Allstate further argues that Brown is an untrustworthy witness because he gave several inconsistent versions of the shooting. It contends that Brown gave different narrations of the incident to Officer Plunkett; Leland Brown, his friend; Steve McEaehern, an Allstate representative; and in his pre-trial deposition and trial testimony. We note that despite variations in Brown’s version of the events, he has never said that Young was lying on the ground and he was standing over him when Young was shot. In fact, no one, other than Dr. Cogswell, testified to this alleged positioning of the parties.

Allstate also maintains that Young’s testimony is not credible because he is a convicted felon and he admitted he drank 16 beers and some whiskey on the night he was shot. However, despite Young’s inebriated state, his version of the events coincided with Brown’s. Young testified that at the time he was shot neither he nor Brown were on the ground. Young also corroborated Brown’s account that the two had collided in front of Brown’s truck when the gun fired.

Allstate also urges that the trial court should place no emphasis on Young’s testimony that he had powder burns as a result of the shooting, which would indicate close physical contact. During his deposition, Young stood up and showed where the bullet entered his abdomen. Stippling, or discolored markings, were noted to be present around this site. Young claimed that these scars were from powder burns.

Allstate also urges that in his post-Miranda statement to Officer Plunkett, Brown admitted that he intentionally fired his revolver. What Officer Plunkett wrote was that the “suspect raised (his) gun and fired.” |7The trial court weighed this statement with Brown’s trial testimony and the other evidence and held that Brown did not intentionally shoot Young. In its oral reasons for judgment, the trial court specifically found:

[T]he testimony from both sides was that it wasn’t intentional. I’ll tell you what struck me, and that was that he fired a shot into the ground. He didn’t fire it at the three people that he testified were coming at him. He fired a warning shot. He testified that the gun discharged when he and the plaintiff ... the defendant and the plaintiff ... as a surprise to the defendant, bumped into each other.
And, then, after he shot him, he took a beating rather than shoot somebody else. And I believe him when he says this, he got punched as he was trying to put the gun down, which indicates to me, once he realized this group of people weren’t armed, he quit trying to shoot anybody.
I don’t think he ever really intended to shoot anybody. He quit ... trying to use the gun in the altercation. He fired one shot into the ground instead of at somebody, the gun went off when the two — when they impacted. And then he had punches landed on him, basically took a whipping trying to put the gun up so somebody else didn’t get shot. That doesn’t strike me as somebody who is intentionally trying to shoot anybody. * * *
[W]hat this case is about is two drunks going bump in the night versus an intentional effort at injuring.

The subjective intention of Brown was indeed a question of fact which falls within the trial court’s vast discretion. See Stobart, supra. We take cognizance that where conflicting testimony is presented, the trial court’s reasonable evaluations of credibility and inferences of fact should not be disturbed on appeal. The trial court was not manifestly erroneous in rejecting Dr. Cogswell’s expert opinion and accepting the testimony of Brown and Young. Thus, we uphold the trial court’s factual findings and witness evaluations. We cannot say the trial court was manifestly erroneous in finding that Brown did not intend to inflict injury upon Young. | ¡¡Accordingly, coverage under Brown’s insurance policy for Young’s resultant damages is not barred.

Comparative Fault

In his appeal, Young urges that the trial court erred in finding him negligent and assigning 35% fault to him. He argues that he should not have been assigned any comparative fault in this matter and claims “he did not advert to or consciously consider the risk of the danger presented by Brown’s actions.” In the alternative, Young submits that if he is assessed with any fault, it should be reduced to no more than 10%. Young also urges in a separate assignment of error that the trial court erred in its assessment of 35% of the total court costs to him.

Finding that Young was involved “quite vigorously and actively” in the precipitating events, the trial court allocated 35% fault to Young and 65% fault to Brown. After reviewing the evidence presented to the trial court, we cannot say that the trial court’s apportionment of fault between Young and Brown was either unreasonable or unsupported by the evidence. By arming himself, Brown created a great risk; nonetheless, Young’s proclivity for reckless conduct contributed to his own injury. In his inebriated state, Young’s loud and violent behavior understandably raised concern on the part of Brown for the safety of his passenger and himself. After Brown fired the first warning shot into the pavement, Young, on his own volition, ran toward the front of the truck and collided straight into the armed Brown.

Accordingly, we will not disturb the apportionment of fault.'

19Conclusion

For the foregoing reasons, the judgment of the trial court is AFFIRMED. Costs of this appeal are assessed to insurer/appellant, Allstate Insurance Company.

AFFIRMED.

      . Although Brown testified at the instant trial, he was not served, nor did he answer as a party. Allstate appointed him a conflict counsel, who was present at the trial; however, she was there only to monitor the case.


author: h CANNIZZARO, Judge.

text:
    Leslie Lewinter, Wife of/and Robert M. SUSKIND, M.D., v. Denese SHERVINGTON, M.D.
    No. 2003-C-0037.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 16, 2003.

      Timothy G. Schafer, Valerie M. Briggs, Schafer & Schafer, New Orleans, LA, for Plaintiffs/Respondents, Leslie Lewinter and Dr. Robert Suskind.
    Marie A. Bookman, New Orleans, LA, for Defendant/Relator, Denese Sherving-ton, M.D.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR.).
   h CANNIZZARO, Judge.

Denese Shervington, M.D. (“Dr. Sherv-ington”), the relator, seeks supervisory review of the trial court’s decision granting summary judgment in favor of Robert M. Suskind, M.D. (“Dr.Suskind”) and his wife, Leslie LeWinter (the “Suskinds”).

FACTS AND PROCEDURAL HISTORY

On May 18, 2000, Dr. Shervington and the Suskinds signed a ReMax printed form of Agreement to Purchase and Sell (the “Agreement”), pursuant to which the Sus-kinds agreed to sell, and Dr. Shervington agreed to purchase, the Suskinds’ property located at 19 Park Island, New Orleans, Louisiana. The Agreement contained the following provision:

OPEN PREDICATION CLAUSE This
sale is predicated on the sale of PURCHASER’S property at 5352 Bancroft. This predication shall continue for 14 days following acceptance of this offer. If PURCHASER’S property has not gone to Act of Sale, or this predication is not removed within the above stated period, this Agreement to Purchase becomes null and void, and PURCHASER’S deposit shall be returned in full. During the above stated period, SELLER has the right to continue to show and offer the property to prospective purchasers. If SELLER receives another acceptable offer, he shall so notify PURCHASER, and participating Agents in writing. PURCHASER shall have 72 hours, from timed receipt of such notification, to either remove this predication, in writing to SELLER’S DESIGNATED AGENT, or to release, in writing all rights under the agreement and to have his deposit returned to him. If this predication is removed by PURCHASER, all financing contingencies of this Agreement to Purchaser are automatically | ^removed, and all other terms and conditions of the Agreement shall remain in full force and effect. PURCHASER and SELLER agree that PURCHASER’S failure to remove this predication, in writing to SELLER’S DESIGNATED AGENT, within the time stipulated following notification, shall render this Agreement to Purchase null and void, and all parties agree to execute a release of this Agreement and authorize the return of deposit in full. (Emphasis supplied.)

Under the terms of the predication clause quoted above, the Agreement would become “null and void” unless one or both of two events occurred on or before June 1, 2000, which was fourteen days after the date the Agreement was executed. Either the predication clause had to be removed from the Agreement or Dr. Shervington’s property at 5352 Bancroft Street had to be sold. The predication clause was not removed on or before June 1, 2000, and Dr. Shervington’s property had not sold by that date.

On June 5, 2000, Dr. Shervington executed a ReMax printed form of Removal of Predication. This form read as follows:

It is hereby agreed and understood by the parties hereto that the predication as stated in the contract dated May 18, 2000 for the purchase of 19 Park Island is no longer a consideration.
All other terms and conditions of the agreement to remain in full force and effect.

The Removal of Predication was signed by Dr. Shervington but was never signed by the Suskinds.

On July 26, 2000, Dr. Shervington submitted to the Suskinds a ReMax printed form of an Extension of Loan Approval and/or Act of Sale (the “Extension”). The form referenced the “AGREEMENT TO PURCHASE OR SELL DATED: May 18, 2000” and included the property address “# 19 Park Island”. The form provided that “[i]t is hereby understood and agreed that concerning the above referenced agreement to purchase or sell that we have | sextended the time for obtaining loan approval to Aug. 21, 2000 and the time for passing of the Act of Sale to Sept. 1, 2000”. On July 26, 2000, Dr. Suskind revised the Extension to delete the reference to obtaining loan approval and to add a provision pursuant to which Dr. Shervington would agree to reimburse the Suskinds $8,500.00 (or a prorated amount if the act of sale occurred before September 1, 2000) in consideration of the Suskinds’ execution of the Extension. Dr. Shervington refused to sign the Extension as modified by Dr. Suskind.

On July 31, 2000, the date that the Agreement specified for the passing of the act of sale, the Suskinds appeared before a notary public to execute a process verbal. In the process verbal the notary recited that the Suskinds and Dr. Shervington appeared at his office on July 31, 2000, but that Dr. Shervington refused to sign the act of sale and pay the purchase price as required by the Agreement. The notary public protested Dr. Shervington’s failure to purchase the property and pay the purchase price.

On May 17, 2001, the Suskinds filed a Petition for Breach of Contract seeking damages from Dr. Shervington for the losses that they alleged that they sustained because Dr. Shervington refused to purchase their property pursuant to the Agreement. Dr. Shervington filed an Answer & Reconventional Demand and Third Party Demand on June 1, 2001. Dr. Shervington sued the Suskinds in recon-vention for the return of her deposit and for other damages, and she brought a third party demand against Latter & Blum, Inc. for the return of her deposit and for other damages.

On July 26, 2002, the Suskinds filed a Motion for Partial Summary Judgment requesting that the trial court grant summary judgment in their favor on the issue of liability. On October 10, 2002, Dr. Shervington filled a Motion for |4Summary Judgment seeking the return of her deposit. The motions for summary judgment were both heard on December 6, 2002. On December 11, 2002, the trial court rendered a Judgment in which the court granted the Suskinds’ Motion for Partial Summary Judgment and denied Dr. Sherv-ington’s Motion for Summary Judgment.

Dr. Shervington has now applied for writs with this Court. We grant the supervisory writ that has been requested.

STANDARD OF REVIEW AND APPLICABLE LAW

Standard of Review

In Independent Fire Insurance. Co. v. Sunbeam Corp., 99-2181 and 99-2257 (La.2/29/00), 755 So.2d 226, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The burden of proof remains with the mov-ant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). Id. at p. 7 and at 230-31.

See also Austin v. Abney Mills, Inc., 2001-1598 (La.9/04/02), 824 So.2d 1137; Randall v. Chalmette Medical Center, Inc., 2001-0871 (La.App. 4 Cir. 5/22/02), 819 So.2d 1129; Pierre-Ancar v. Browne-McHardy Clinic, 2000-2409 and 2000-2410 (La.App. 4 Cir. 1/16/02), 807 So.2d 344, writ denied, 2002-0509 (La.4/26/02), 814 So.2d 558.

Applicable Law

The law applicable to the instant case consists of basic Louisiana Civil Code articles on obligations. La. CM Code art. 2046 provides that “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent”.

La. Civil Code art. 1767 states the law regarding conditional obligations. That article provides as follows:

A conditional obligation is one dependent on an uncertain event.
If the obligation may not be enforced until the uncertain event occurs, the condition is suspensive.
If the obligation may be immediately enforced but will come to an end when the uncertain event occurs, the condition is resolutory.

La. Civil Code art.1927 provides that “[a] contract is formed by the consent of the parties through offer and acceptance”. La. Civil Code art.1943 provides that “[a]n acceptance not in accordance with the terms of the offer is deemed to be a counteroffer”.

DISCUSSION

In Campbell v. Melton, 2001-2578 (La.5/14/02), 817 So.2d 69, the Louisiana Supreme Court considered the following provision in an agreement for the purchase and sale of a house: “any single mechanical item repair that exceeds $2000.00 the Seller has the option to repair or the contract will be null and void”. Id. at p. 2 and at 72. The Court found that this clause in the purchase agreement was a resolutory condition. The Court stated as follows:

1 /‘When viewed as a resolutory condition, the clause clearly states that the contract would terminate upon the happening of a condition, namely the discovery of a mechanical item that exceeded $2,000 to repair.... Rather, a plain reading of the unambiguous clause reveals that once the condition was fulfilled, the contract became null and void unless Melton opted to make the repairs.” Id. at p. 8 and at 76.

The Court found that the clause terminated the contract automatically once the re-solutory condition was proven.

In the instant case, the predication clause was a resolutory condition contained in the Agreement. The predication clause specifically stated that the predication would continue for fourteen days following acceptance of the offer to purchase. The clause stated that if Dr. Shervington’s property had not gone to an act of sale or if the predication were not removed with the fourteen day period, the Agreement “becomes null and void, and Purchaser’s deposit shall be returned in full”. It is undisputed that on June 1, 2000, Dr. Shervington’s property had not been sold. It is also undisputed that the predication clause in the Agreement had not been removed by that date. Therefore, under the express terms of the Agreement, the Agreement automatically became null and void, and Dr. Shervington’s deposit should have been returned to her.

The Suskinds, however, contend that when Dr. Shervington signed the Removal of Predication, which provided that “[a]ll other terms and conditions of the agreement to remain in full force and effect”, the Agreement, which had already become null and void pursuant to its terms, was revived. We do not agree.

Although the Agreement could not be revived, Dr. Shervington could make a new offer to purchase the Suskinds’ home that incorporated the Agreement’s provisions by the reference. This Court finds that the Removal of Predication was an offer made to the Suskinds that was never accepted and that the Extension was |7a modification by Dr. Shervington of the offer contained in the Removal of Predication. By changing the terms of the Extension, Dr. Suskind made a counteroffer to Dr. Suskind but did not accept the offer contained in the Removal of Predication. In order for the Removal of Predication, as modified by the Extension, to become a completed contract, the Suskinds had to agree to the terms of the Removal of Predication, as modified. They did not do this. Dr. Suskind executed a counteroffer, but there was never an acceptance by the Suskinds of the offer contained in the Removal of Predication or of the offer as modified by the Extension. For a contract to be completed there must be an offer and an acceptance. La. Civil Code art. 1927. Because the offer contained in the Removal of Predication, as modified by the Extension, was not accepted by the Sus-kinds, once the Agreement became null and void, there was never a completed contract between Dr. Shervington and the Suskinds.

The Suskinds mistakenly rely on the case of Latter and Blum, Inc. v. Nodier, 442 So.2d 854 (La.App. 4 Cir.1983), to support their position. In that case, however, this Court did not find a resolutory condition in the original listing agreement, and this Court found that the extension agreements were not only intended to be valid contracts by the parties but were also agreed to by all the parties. Therefore, the extension agreements were valid contracts based on the principal of offer and acceptance.

CONCLUSION

The Agreement became null and void on June 1, 2000, because the predication clause had not been removed from the Agreement by that date, and Dr. Sherving-ton’s property that was the subject of the predication clause had not been sold by that date. The subsequent documents that were executed neverj^reached the level of a contract, because the requisite offer and acceptance were missing. Under the terms of the Agreement, when the Agreement became null and void, Dr. Shervington was entitled to the return of her deposit.

Therefore, this Court vacates the Judgment rendered by the trial court on December 11, 2002, renders judgment in favor of Dr. Shervington on her Motion for Summary Judgment, and orders the return of Dr. Shervington’s deposit to her together with legal interest from the date of judicial demand until paid.

WRIT GRANTED, TRIAL COURT JUDGMENT VACATED, AND JUDGMENT RENDERED.


author: hLEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. Terrance FORD. State of Louisiana v. Terrance Ford.
    Nos. 2002-KA-1394, 2002-KA-1642.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 16, 2003.

      Harry F. Connick, Jr., District Attorney, Scott Peebles Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.).
   hLEON A. CANNIZZARO, JR., Judge.

The State of Louisiana filed two separate bills of information charging the defendant, Terrance Ford, with a total of five counts of armed robbery, violations of La. R.S. 14:64. The defendant pled guilty as charged to all five counts and the trial court sentenced him on each count to serve twenty-five years at hard labor without the benefit of parole, probation, or suspension of sentence with the sentences to run currently. The defendant appealed.

FACTS

Because the defendant pled guilty to all five charges before trial, the facts pertaining to the charges against him are not in the record. However, the pre-sentence investigation report discloses that the defendant and three other individuals robbed the Orleans Bar and Grill and its patrons. During the robbery, the bartender fired a gun at the perpetrators, hitting the defendant. The defendant then forced his way into a nearby house and told the resident to call emergency |2services for him. The report also mentions the defendant’s involvement in a grocery store robbery.

ERRORS PATENT

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR

In the single assignment of error raised in the appeal brief filed by defense counsel, the defendant contends that the trial court failed to comply with the requirements of La.C.Cr.P. art. 556.1 in determining whether or not he understood the charges against him.

La.C.Cr.P. art. 556.1 provides:

A. In a felony case, the court shall not accept a plea of guilty or nolo contende-re without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.
(4) That if he pleads guilty or nolo con-tendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.
|aB. In a felony case, the court shall not accept a plea of guilty or nolo con-tendere without first addressing the defendant personally in open court and determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement.
C.The court shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the district attorney and the defendant or his attorney. If a plea agreement has been reached by the parties, the court, on the. record, shall require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered.
D. In a felony case a verbatim record shall be made of the proceedings at which the defendant enters a plea of guilty or nolo contendere.
E. Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.

The Fifth Circuit in State v. Frickey, 00-294 (La.App. 5 Cir. 9/26/00), 769 So.2d 791, found violations of Article 556.1 which do not rise to the level of Boykin violations are subject to harmless error analysis. See also State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. Echols, 99-2226 (La.App. 4 Cir. 10/4/00), 774 So.2d 993, writ denied, 2000-3058 (La.10/5/01), 798 So.2d 962.

The defendant argues that the record contains no evidence to indicate he understood the nature of the charges against him. He further argues that no basis exists for concluding that he understood the nature of the charges against him, considering the fact that he was a first time offender and just had turned seventeen years old when he pled guilty. The defendant points to Fed. Rule 11 to support his |4claim; however, his reliance on Fed. Rule 11 is misplaced in light of the Supreme Court’s holding in Guzman.

At the guilty plea hearing in the instant case, the trial court informed the defendant that he was pleading guilty to one count of armed robbery in case 395-385 and to four counts of armed robbery in case 396-322. The trial court also informed him of the mandatory minimum and maximum sentence for the offenses and the penalties for subsequent offenses. Furthermore, the trial court personally questioned the defendant regarding the waiver of his Boykin rights. Notably, the defendant, who was represented by counsel at the time of his plea, failed to complain that he did not understand the charges against him. The defendant has not shown sufficient prejudice to support his claim. This assignment of error is without merit.

PRO SE ASSIGNMENTS OF ERROR

The defendant filed a supplemental pro se brief raising two assignments of error. In the first pro se assignment of error, the defendant alleges that the trial court failed to advise him of his privilege against self-incrimination before he pled guilty.

A guilty plea is not valid unless it is intelligent and voluntary. The defendant must expressly and knowingly waive his right to trial by jury, his right to confront his accusers, and his privilege against compulsory self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

The guilty plea transcript indicates a thorough colloquy. The trial court advised the defendant that by pleading guilty he was giving up his right to a trial |Bby judge or jury; the right to be presumed innocent; the right to have his attorney presént at trial; and the right to have his attorney question every witness who may testify against him. Regarding the privilege against self-incrimination, the trial court specifically stated:

Ms. Vix could also present evidence for you, on your behalf. She could present other evidence for you and you could testify yourself, if you like. On the other hand, if you wanted to go to trial and not present evidence or witnesses, you wouldn’t have to, and if you didn’t your failure to do so could not and would not be held against you or in any way considered as possible evidence of guilt against you.

At the conclusion of the colloquy, the trial court asked the defendant if he understood his rights and the fact that he was giving them up by pleading guilty; whether he had initialed and signed the guilty plea form; and whether he was satisfied with his attorney. The defendant responded, “Yes.”

The minute entries in the record from the guilty plea hearing also indicate that the court advised the defendant of his constitutional rights under Boykin. In addition, the two guilty plea forms that the defendant signed and initialed clearly indicate that he had been advised that by pleading guilty he was waiving his right against self-incrimination.

This pro se assignment of error is without merit.

In the second pro se assignment of error, the defendant alleges that the trial court erred in representing to him an uncertain sentence in exchange for his guilty plea. He claims that when he entered his guilty plea, the prosecutor, the trial court, and the defense understood that he was reserving his right to appeal any sentence that would be imposed. The defendant further claims that the trial court never | ^advised him that he was waiving his right to appeal his sentence by pleading guilty, citing La.C.Cr.P. art. 881.2 A(2).

The colloquy indicates that the trial court informed the defendant that by pleading guilty, he waived his right to an appeal, if convicted. The trial court explained that if the case went to trial and the defendant was convicted, the possible sentences ranged from five years to ninety-nine years at hard labor without the benefit of parole, probation, or suspension of sentence. The trial court then stated:

I have agreed that a presentence will be ordered. The sentencing will be ultimately between 15 and 25 years, all to run together concurrently. That will be decided only after your attorney and the State’s attorney and the court have reviewed the presentence investigation report and I’ve listened to anything that either or both sides wish to present at a motion hearing.

Although the trial court failed to state that it would impose sentences of an exact number of years, the colloquy and the guilty plea forms reflect that the defendant knew that the sentences imposed would range from fifteen to twenty-five years depending upon the pre-sentence investigation. Contrary to the defendant’s claim, nothing in the record indicates that the State, the trial court, and the defense had agreed that his guilty plea was predicated on his right to appeal any sentence received. Clearly, the sentences imposed by the trial court conform to the defendant’s plea agreement. Thus, this pro se assignment of error is without merit.

I ^CONCLUSION

Accordingly, for the reasons stated herein, the defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . La.C.Cr.P. art. 881.2A(2) provides that "[t]he defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.”


author: I JOAN BERNARD ARMSTRONG, Judge.

text:
    Gail Marie WILLIAMS v. DEPARTMENT OF PROPERTY MANAGEMENT.
    No. 2002-CA-1407.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 16, 2003.

      Gail Marie Williams, In Proper Person, Plaintiff/Appellant.
    Patrick R. Bossetta, Assistant City Attorney, Franz L. Zibilich, Chief Deputy City Attorney, Charles L. Rice, Jr., City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge DAVID S. GORBATY).
   I JOAN BERNARD ARMSTRONG, Judge.

The plaintiff, Gail Marie Williams, appeals the termination of her employment by the Department of Property Management for the City of New Orleans. Williams was employed as a grounds patrol supervisor by the Department of Property Management. The plaintiff was notified, by letter dated April 23, 2001, that she was being suspended for one hundred twenty days for one alleged incident of payroll fraud which occurred on April 13, 2001. The letter indicated that a pre-termination hearing would be held on April 25, 2001. On May 1, 2001, the plaintiff was notified that she was terminated as a result of the payroll fraud. The letter cited two other alleged incidents of payroll fraud, which allegedly occurred on March 12, 2001 and April 5, 2001. The plaintiff appealed her termination to the City of New Orleans’ Civil Service Commission. A hearing was conducted on September 6, 2001. The commissioner rendered its written recommendation to the members of the Civil Service Commission that the plaintiffs termination of employment be affirmed. The Commission affirmed the agency’s termination of the plaintiffs employment on February 19, 2002. The plaintiff now seeks appellate review of the Civil Service Commission’s decision.

|?On appellate review, findings of fact of the Board are not to be overturned in the absence of manifest error, and the Board’s conclusion as to the existence or absence of cause for dismissal should not be disturbed unless the decision is capricious or an abuse of the Board’s discretion. Dumez v. Houma Municipal Fire & Police Civil Service Bd., 408 So.2d 403, 406-407 (La.App. 1 Cir.1981). Nevertheless, an appellate court’s review of the Board’s decisions as to jurisdiction, procedure and interpretation of laws and regulations is not so limited. Cannon v. City of Hammond, 97-2660 (La.App. 1 Cir.12/28/98), 727 So.2d 570; Department of Public Safety and Corrections, Office of Youth Ser vices v. Savoie, 569 So.2d 139, 141 (La.App. 1 Cir.1990).

Louisiana Constitution Article 10, § 8, provides in part that: “No person who has gained permanent status in classified state or city service shall be subject to disciplinary action except for cause expressed in writing.” Rule IX, § 1.2 of the Rules of the Civil Service Commission for the City of New Orleans, states that “[i]n every case of termination of employment of a regular employee, the appointing authority shall conduct a pre-termination hearing as required by law and shall notify the employee of the disciplinary action being recommended prior to taking the action.” In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985), the United States Supreme Court held:

The essential requirements of due process ... are notice and an opportunity to respond.... The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story... .To require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee.

lain Riggins v. Department of Sanitation, 92-1921 (La.App. 4 Cir.1993), 617 So.2d 112, this Court reviewed Loudermill in light of Rule IX, § 1.2, of the Rules of the Civil Service Commission and concluded that an employee is entitled to advance notice of the charges and evidence against him prior to his pre-termination hearing. See also Henderson v. Sewerage and Water Bd., 99-1508 (La.App. 4 Cir. 12/22/99), 752 So.2d 252. An explanation of the evidence is a prerequisite to the employee’s pre-termination opportunity to present his side of the story. Webb v. Department of Safety & Permits, 543 So.2d 582 (La.App. 4 Cir.1989). This Court has previously held that notice of the charges should fully describe the conduct complained of, setting forth the relevant dates and places and the names of witnesses against the employee to enable the employee to fully answer and prepare a defense. Id.

In Webb, the plaintiff appealed her termination of employment as a motor vehicle examiner for the City of New Orleans. The plaintiff was terminated for allegedly pocketing a two dollar delinquency fee and accepting a two dollar bribe. The plaintiff did not receive an explanation of the evidence against her or nor was she given an adequate opportunity to present a defense. The plaintiff was told on May 20,1987 that she was being terminated because she had been arrested on a charge unrelated to the alleged bribe and that she was to see Keith Johnson, secretary of the Department of Safety and Permits, the next day. Plaintiff saw Johnson on May 21, 1987, who informed her that she was being terminated as a result of the alleged bribe. The plaintiff was not given an opportunity to give her side of the story. In a letter dated May 26, 1987, the plaintiff was informed that she was terminated from her employment. The termination letter did not specify any misconduct by the plaintiff other than general violations of one or more Ldepartment policies, Civil Service Commission Rules and Code of Ethics provisions. This Court held that the plaintiff was not provided with notice and an adequate pre-termination hearing as required by the City of New Orleans Civil Service Rules and Loudermill, and reversed the Commission’s decision affirming the agency’s termination of plaintiff’s employment.

In the present case, Williams was informed by the letter of April 23, 2001 that termination of her employment was being considered as a result of payroll fraud which occurred on April IB, 2001. The letter stated that the plaintiff “should be prepared to defend [herjself against the charges of payroll fraud that occurred on [her] time card for time worked on Friday, April 13, 2001. This one incident of payroll fraud was the only matter discussed at the pretermination hearing on April 25, 2001. After the hearing, two other incidents of payroll fraud were discovered and plaintiff was terminated on May 1, 2001. The letter of May 1, 2001 states

We have been forced to terminate you because you altered your time card on three (3) separate occasions after your supervisor, Sergeant Oris Buckner, had signed the time card approving your time and attendance. On each occasion your action resulted in a benefit to your pay or leave balance and, thus, constituted payroll fraud.”

The letter also revealed that that the committee “reconvened and reviewed additional time cards” after an additional alleged incident of payroll fraud was found after the hearing on April 25, 2001. There is no evidence to suggest that the plaintiff attended the meeting when the committee reconvened and reviewed the additional time cards.

As stated above, the City of New Orleans Civil Service rules and Loudermill require that notice of the charges should fully describe the conduct complained of, setting forth the relevant dates and places and the names of witnesses against the employee to enable the employee to fully answer and prepare a defense. The | ¿employee must also be given an adequate opportunity to present a defense. While the plaintiff was given evidence concerning the alleged payroll fraud of April 13, 2001 and allowed to present her defense at the pre-termination hearing on April 25, 2001, the plaintiff was not informed of the other alleged incidents of payroll fraud until she received the termination letter of May 1, 2001. Since the Department of Property Management used these other two incidents of payroll fraud to reach its decision to terminate plaintiffs employment, the plaintiff was entitled to notice of these additional charges and an opportunity to present a defense in regards to these additional charges. The requirements of La. Const. Art. 10 § 8 and Loudermill were not met.

The decision of the Civil Service Commission is reversed and the plaintiff is reinstated. The Department of Property Management can give her proper notice, an explanation of the charges against her, an adequate pre-termination opportunity to respond and proper written notice of termination. Since we have decided this case on a procedural issue, there is no need to discuss the sufficiency of the evidence presented at the Civil Service hearing regarding the alleged misconduct.

For the foregoing reasons, the decision of the Civil Service Commission is reversed and the plaintiff is reinstated.

REVERSED; REINSTATED.