author: 11 SAUNDERS, Judge. h SAUNDERS, J., | WOODARD, J.,

text:
    Ronald DARBY v. GILBERT RICHARD, INC. and Gilbert Richard, Individually.
    No. 02-1154.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Donald W. Price, Baton Rouge, LA, for Plaintiff/Appellant, Ronald Darby.
    Michael D. Meyer, New Orleans, LA, for Defendant/Appellee, Gilbert Richard.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and ELIZABETH A. PICKETT, Judges.
   11 SAUNDERS, Judge.

Appellant, Ronald Darby, appeals from a judgment of the Office of Workers’ Compensation finding (1) that the appellant failed to prove, by a preponderance of evidence, that he had an “accident” at work resulting in objective findings of an injury, and (2) that the claimant’s testimony was based on inconsistencies, untruths, and misrepresentations, in violation of La. R.S. 23:1208 resulting in a forfeiture of all benefits, full restitution to the Defendant, Gilbert Richard, and a fine in the amount of $5,000.00. For the reasons stated below, we affirm the findings of the Workers’ Compensation Judge (WCJ).

FACTS AND PROCEDURAL HISTORY

It is undisputed that on November 20, 2000, while in the course and scope of his employ as a driver of sugar cane trucks, Ronald Darby was involved in a motor vehicle accident. A motorist drove underneath the trailer of Mr. Darby’s truck after losing control of his vehicle. After realizing that he had been involved in an accident, Mr. Darby applied the breaks of his vehicle. Upon applying the truck’s breaks, Mr. Darby claims the truck began to shake violently, resulting in his being-thrown about the cab of the truck. Approximately one week after the accident Mr. Darby was fired by Mr. Richard for reasons unrelated to the accident or his alleged resulting injuries.

Mr. Darby maintains that, as a result of the accident, he injured his knees and back, and subsequently began to experience severe back and leg pain which has rendered him unable to work. Following the accident, and his being fired by Mr. Richard, Mr. Darby’s condition allegedly began to deteriorate. He finally sought medical treatment from Dr. Keith Mack on December 27, 2000, at which time Mr. Darby complained of increasing pain in his legs and low back, and that his legs began to give out on him.

| fijpon examination of Mr. Darby, Dr. Mack found muscle spasm along with subjective symptoms of tenderness and decreased range of motion. Dr. Mack continued treating Mr. Darby through March 29, 2001. When Mr. Darby’s low back and leg symptoms failed to improve, he sought treatment from hospital emergency rooms. He went to the emergency room at Iberia Medical Center on February 6, 2001 and March 22, 2001. He also sought treatment from the Dauterive Hospital Emergency Room on March 29, 2001. On May 16, 2001, Mr. Darby reported to Lafayette General Hospital’s Emergency Room where he received an MRI showing spon-dylolisthesis and possible central disk herniation at L5-S1.

On May 26, 2001, Mr. Darby again returned to Lafayette General and was admitted for observation for several days. While admitted at Lafayette General, Mr. Darby began seeing Dr. John Cobb, who continued to provide follow up care for Mr. Darby after his discharge. In office visit follow-ups with Mr. Darby, Dr. Cobb ordered an EMG and a nerve conduction study, which showed bilateral L-5 radicu-lar changes. Dr. Cobb recommended surgery to remove the disk, decompress the nerves, and fuse the unstable space at L5-Sl. Mr. Darby has not yet undergone this recommended surgery, and to date his medical expenses total $11,129.46.

The matter was heard on May 22, 2002, by Judge Glynn F. Yoisin of the Office of Workers’ Compensation, District 9. Mr. Richard moved for involuntary dismissal, which the WCJ took under advisement, and a judgment was rendered on June 28, 2002. The WCJ denied the motion for involuntary dismissal, found that Mr. Darby failed to meet his burden of proof establishing that his current disability was caused by the work-related accident of November 20, 2000, and therefore, Mr. Darby was not entitled to disability or medical benefits. Additionally, the WCJ found that Mr. Darby Rmade material misrepresentations in his testimony, which violated La.R.S. 23:1208 and resulted in a forfeiture of his right to compensation benefits. In his written reasons for judgment the WCJ outlined forty-three findings of fact documenting the inconsistencies in Mr. Darby’s testimony, and illustrating the basis for the WCJ’s finding that Mr. Darby’s testimony lacked credibility.

STANDARD OF REVIEW

The standard of review for appellate courts in workers’ compensation cases is well established and it is clearly set out in Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97); 696 So.2d 551, 556 as follows:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poul-onfWeed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Freeman, 93-1530 at p. 5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La. 1990).

In Rosell v. ESCO, 549 So.2d 840, 844 (La.1989), the supreme court recognized that the complex nature of evaluating truthfulness and credibility is more properly determined at the trial level by the factfinder rather than by a court of appeal, which bases its determinations on a review of the cold record. Therefore, the court held that the deference given to the trier of fact is particularly great when evaluating the weight to be given to witness testimony:

|4When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Id. at 844. (citations omitted).

ARGUMENT

Assignment of Error # 1

In Mr. Darby’s first assignment of error, he claims that the WCJ committed legal error, or alternatively, manifest error, in failing to find that his injury was caused by an on-the-job accident. He claims that the WCJ failed to apply the appropriate presumption of causation, and that the WCJ failed to hold Mr. Richard, who questioned factual causation, to the appropriate standard of proving alternative causation. For the reasons stated below, we find Mr. Darby’s argument to be without merit.

In Bruno v. Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992), the supreme court stated the burden of proof required of claimants seeking compensation for work related injuries. “[A]s in other civil actions, the plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence.” La.R.S. 23:1021(1) defines an “accident” as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” The supreme court identified the presumption of disability, relied upon by Mr. Darby, in Lucas v. Ins. Co. of North America et al, 342 So.2d 591, 596 (La.1977), which stated:

Is A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition, (citations omitted.)

In the present case the WCJ held that there was not “a reasonable possibility of causal connection” between the accident and Mr. Darby’s disabling condition. In light of the evidence in the record, we do not believe that the WCJ was manifestly or legally erroneous in reaching this conclusion. The statements and conclusions presented by Dr. Mack and Dr. Cobb in their deposition testimony provide sufficient evidence to support the WCJ’s conclusions. Dr. Mack testified that he would “imagine that [Mr. Darby] would have been in considerable pain” during the week he continued working after the accident. Yet Mr. Darby, according to his employer, never mentioned a back injury. He only referred to his alleged knee or leg injuries. Dr. Mack also stated that it would be surprising for Mr. Darby to fail to develop back or neck symptoms within the week he continued working for Mr. Richard. He speculated that Mr. Darby would have developed his current neck and back symptoms within three or four days of the accident occurring, and “certainly within the first week after the accident.”

The WCJ also gave great weight to the video evidence presented by the appellee. We recognize that it is not necessary for Mr. Darby to be completely homebound or bedridden to support a finding that he has sustained a compensable injury. Mr. Richard presented video tape evidence at the hearing, however, which shows Mr. Darby engaged in various activities on three separate days. This video directly contradicts several statements made by Mr. Darby concerning his symptoms 1 fiand the severity of his alleged disability.

Mr. Darby stated that he was unable to bend over for any period of time without pain. The video clearly shows Mr. Darby crouched by his vehicle for several minutes, checking the air level in his tires with no apparent difficulty. He also stated that he was unable to lift or carry even light grocery bags. This statement was later corrected and Mr. Darby indicated that he could carry only very light grocery bags containing items like bread. Despite these statements, the video shows Mr. Darby carrying a gas container with approximately $1.50 worth of gasoline in it. It also shows him bending while holding the gasoline container and using it to fill his gas tank.

In addition, Mr. Darby was adamant in his assertion that he now walks with a limp “most of the time.” Despite this claim the video shows him walking significant distances, and carrying substantial items, yet never walking with a limp and walking at a relatively quick pace. Even when confronted at the hearing with the video evidence clearly showing him walking normally Mr. Darby amazingly continued to claim that he was limping while walking in the video footage. The WCJ found no evidence of this limp while viewing the tape, nor do we upon our own viewing of the video. Mr. Darby was also confronted on his earlier testimony that as a result of his injuries he was unable to do things as simple as getting in and out of a car. Yet on viewing the tape, Mr. Darby admitted that he was shown entering and exiting his vehicle repeatedly with no apparent difficulty or discomfort.

In his reasons for judgment the WCJ also referred to statements concerning his injuries, which Mr. Darby claims he made to Officer Pellerin and Mr. Richard at the scene of the accident. Mr. Darby testified that he informed both Mr. Richard and |70fficer Pellerin that he hurt his knees in the accident. During testimony neither Officer Pellerin nor Mr. Richard could corroborate this. Mr. Darby also testified that he was bleeding from the knees and limping at the scene of the accident and that Mr. Richard witnessed as much. Mr. Richard did not corroborate this. Officer Pellerin testified that he watched Mr. Darby walk around the scene of the accident and he never saw Mr. Darby limp. Additionally, Dr. Mack testified to seeing a “small superficial laceration of the skin overlying the kneecap which was in the process of healing.” The WCJ questioned how anything but a severe cut requiring immediate medical treatment would still be healing five weeks after the alleged injury. Mr. Richard testified that after being fired Mr. Darby returned on two separate occasions to obtain paychecks. On both occasions he failed to mention any injury resulting from the on-the-job accident, or a workers’ compensation claim.

In the conclusions of law stated in the WCJ’s written reasons for judgment, he states that the court did not accept the claimant’s testimony that he was disabled or injured in the November 20, 2000 accident. The WCJ highlights the fact that the claimant continued to work after the accident for a full week with no apparent difficulty and did not seek medical treatment for his alleged injury until after he was fired from his job. The WCJ further noted that Mr. Darby did not seek medical treatment until his attorney arranged an office visit approximately five weeks after the date of the accident. The WCJ also found that Mr. Darby failed to meet his burden of proof with respect to medical causation. Dr. Mack and Dr. Cobb relied on the history of the patient in relating his injuries to the accident. Since the court found Mr. Darby to be an unreliable witness, it also deemed the history he provided the doctors to be unreliable.

| sIn light of the overall lack of corroboration for Mr. Darby’s statements to others regarding the extent of his injuries as a result of the November 20, 2002 accident, and in conjunction with Mr. Darby’s general lack of credibility in several other areas of testimony, we find no error on the part of the WCJ in accepting Officer Pelle-rin’s and Mr. Richard’s recollection of Mr. Darby’s stated injuries at the time of the accident. We also find no error, legal or otherwise, in the WCJ’s conclusion that Mr. Darby failed to establish that he suffered a compensable injury in the on-the-job accident of November 20, 2000.

Assignment of Error # 2

In Mr. Darby’s second assignment of error he asserts that the WCJ erred in entertaining his employer’s claims under La.R.S. 23:1208, inasmuch as the office of workers’ compensation lacks subject matter jurisdiction over such claims. He based this argument on our holding in Lanthier v. Family Dollar Store, 02-429 (La.App. 3 Cir. 10/2/02); 827 So.2d 547, vacated by, 2002-2663 (La.11/27/02); 836 So.2d 5. Mr. Darby asserts that, although the constitutionality issue was not raised below, we should consider it because the statute was declared unconstitutional by this court after the appeal was lodged.

In Lanthier, we expressed concern regarding the civil and criminal penalties Section 1208 allows workers’ compensation judges to impose.

[T]his court is troubled by the grant of power provided in La.R.S. 28:1208, which permits the Office of Workers’ Compensation to impose criminal penalties against those in violation of the statute. As the court found in Rivera v. West Jefferson Medical Center, 96-152, p. 17 (La.App. 5 Cir. 7/30/96); 678 So.2d 602, 611, we also find:
There is a fundamental difference between criminal and civil matters. (Citation omitted). Criminal prosecutions put the defendant at risk of losing basic personal freedoms which are protected by both the United States and the Louisiana Constitutions. As such, criminal prosecutions must be conducted within the strict confines of the |gcriminal justice system. There is no provision in the Worker’s Compensation Chapter which authorizes a hearing officer to convict a claimant of criminal activity and sentence him accordingly.

Lanthier, 827 So.2d at 550-51.

In a concurrence to Boise Cascade Corp. v. Dean, 99-1356, pp. 8-10 (La.App. 3 Cir. 5/3/00); 767 So.2d 76, 86-87, writ denied, 2000-2505 (La.11/13/00); 774 So.2d 146, I discussed the constitutionality of 1208’s criminal sanctions. I reiterate that discussion here.

Clearly, it is the very criminality of the statute [La.R.S. 23:1208] that places it in peril. In Grant, 696 So.2d 73, we discussed fraud as a civil tort matter. But a civil tortfeasor does not risk imprisonment, so it is now appropriate to consider when fraud becomes a criminal matter. A sanction is penal when it is “punishable; inflicting a punishment; containing a penalty, or relating to a penalty.” (Citation omitted). A crime is any conduct so defined by the Criminal Code, by other acts of the legislature, or by the Louisiana Constitution. La.R.S. 14:7.
La.R.S. 23:1208 unquestionably provides for severe criminal sanctions, particularly where in Subsection (C)(1) and (C)(2) an offender may be subject to ... felonious imprisonment at hard labor. The fundamental concerns that arise in a criminal setting are absent in civil matters, hence the need for the added procedural devices to safeguard the constitutional rights of the accused. In a criminal case, ... procedural protections sufficient to afford due process are provided through criminal procedural rules.
In sum, with La.R.S. 23:1208, ... [defendant enjoys none of the procedural safeguards of a criminal proceeding; nevertheless, he is subject to the sanctions of a penal statute. La.R.S. 23:1208, ... in disregard of constitutional due process, is nothing more than a criminal statute masquerading in civil garb, designed to discourage fraud in •workers’ compensation matters with over-broad penalization.

In Lanthier, 827 So.2d at 551-53, we also addressed 1208’s defects with respect to its civil penalties section. Because those arguments still apply and are equally applicable now, we restate them.

The adjudication of criminal conduct is not the sole constitutional | ^infirmity posed by La.R.S. 23:1208. The determination of tortious conduct by the OWC under La.R.S. 23:1208 is violative of our constitution as well. Grant v. Natchi-toches Manor Nursing Home, 96-1546 (La.App. 3 Cir. 5/14/97); 696 So.2d 73, writ denied, 97-1582 (La.10/17/97); 701 So.2d 1330 explained:
Thus, it appears that when an employee violates La.R.S. 23:1208, his actions are tortious in nature (the conduct may even be considered criminal in nature), rather than a workers compensation matter. At best, the conduct prohibited by La.R.S. 23:1208 presents a cause of action in tort for fraud or deceit.
In Coleman v. Sheraton Pierremont, 25,452 (La.App. 2 Cir. 1/19/94); 631 So.2d 50, 53, citing Sampson v. Wendy’s Management, Inc.[J 593 So.2d 336 (La. 1992), the supreme court noted “that a retaliatory discharge cause of action found in the chapter on worker’s compensation was not a worker’s compensation matter to be heard by administrative hearing officers, since the cause of action was in tort and/or a claim for civil penalties.” Following the reasoning in Sampson, we find that the penalties meted out by the hearing officer in accordance with La.R.S. 23:1208 against claimant clearly were not “directly associated with the employee’s work-related injury,” Sampson, 593 So.2d at 339. Instead, the nature of the cause of action embodied in La.R.S. 23:1208 is tor-tious/delictual in nature, falling beyond the jurisdictional authority of the hearing officer as authorized by La. Const. Art. V, §§ 10(A)(B), §§ 16(A), La.R.S. 23:1310.3. Clearly, the misconduct characterized by La.R.S. 23:1208 falls within a well recognized area of tort law (the tort of fraud/deceit), and thus we conclude that the hearing officer and the Office of Workers’ Compensation lacked jurisdiction to impose sanctions under La.R.S. 23:1208. Additionally, La.R.S. 23:1291(B)(5), entitled “Creation, powers, and duties of the office of worker’s compensation administration,” states: To establish and promulgate in accordance with the Administrative Procedure Act such rules and regulations governing the administration of this chapter and the operation of the office as may be deemed necessary and which are not inconsistent with the laws of this state. (Emphasis added). To allow the OWC power to adjudicate tortious and criminal conduct is antithetical to, and inconsistent with, the clear constitutional directions of Article 5, Section 1; Article 5, Section 16; and Article 2, Section 2 of the Louisiana Constitution. The constitution must take precedence. Louisiana Revised Statutes 23:1208 is unconstitutional.

In addition to 1208’s unconstitutional grant of jurisdiction over tortious and criminal conduct to the Office of Workers’ Compensation, an administrative agency, the statute also raises substantial due process concerns. As written, Section 1208 Inrequires the complete forfeiture of all compensation rights even for relatively minor misrepresentations. In his dissent to the majority opinion in St. Bernard Parish Police Jury v. Duplessis, 02-632, p. 1 (La. 2002); 831 So.2d 955, 961, Justice Calogero noted the disproportionate severity of the penalties required under the current interpretation of Section 1208 in light of the relatively minor nature of possible infractions.

Further, I note that La.Rev.Stat. 23:1208, as it is interpreted by the majority, results in a draconian penalty that deprives workers’ compensation claimants of their rights to compensation not reasonably related to or otherwise impacted by the misrepresentation. Because of the joint benefits flowing from the workers’ compensation scheme in favor of employees and employers, an employee is required to waive his rights to pursue tort remedies against employers in consideration for which he receives a percentage of his salary during the period of his disability. To further deprive the claimant of his workers’ compensation benefits because of a fraudulent claim for reimbursement of mileage expenses related to his attainment of medical treatment is a gross penalty that should be permitted only if the statutory provision is clear and unambiguous. Not only is the provision not clear and unambiguous in this case, but it is difficult to believe that the Legislature intended for the provision to have such a harsh effect. On the other hand, if the majority is right and the statute has to be interpreted as they hold, I suggest that the Legislature should reconsider whether workers’ compensation statutory reform should extend this far.

Where the severity of the punishment so clearly outweighs the severity of the infraction, as in the misrepresentations involving mileage reimbursement discussed by Justice Calogero above, employees are effectively denied their due process rights.

Despite our continued contention that Section 1208 grants unconstitutional authority to Workers’ Compensation Judges to impose criminal penalties and determine tortious conduct, as well as the argument by Justice Calogero above questioning the application of the statute as overbroad and unduly harsh, the Louisiana Supreme Court has not yet ruled that Section 1208 is, in fact, unconstitutional. The issue of constitutionality was not raised by the parties in \wLanthier at any time during the proceeding, therefore the supreme court vacated the judgment of this court on procedural grounds and the case was remanded for further proceedings. As with Lanthier, Mr. Richard asserts that because the constitutionality issue was not raised at the trial level, it is not properly before this court. In support of this proposition, Mr. Richard cites La. R.S. 23:1310.3(F)(1), which states:

Any party challenging the constitutionality of any provision of this Chapter shall specially plead such an allegation in the original petition, an exception, written motion, or answer, which shall state with particularity the grounds for such an allegation.

Despite our ongoing concerns as to the application of La.R.S. 23:1208 by the Office of Workers’ Compensation, and while we maintain the arguments against the constitutionality of Section 1208 previously raised by members of this court, the majority is of the opinion that, as was the case in Lanthier, the constitutionality of Section 1208 is not properly before the court. This writer feels that the constitutionality of Section 1208 is properly before the court and provides reasons in the dissent.

Assignment of Error # §

In Mr. Darby’s final assignment of error he asserts that the WCJ erred in finding a willful misrepresentation that warranted forfeiture under La.R.S. 23:1208. In Resweber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95); 660 So.2d 7, 12, the supreme court provided a clear test for the application of La.R.S. 23:1208. “The only requirements for forfeiture of benefits under Section 1208 are that (1) there is a false statement or misrepresentation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.”

In Menard v. Mama’s Fried Chicken, 97-488 p. 2 (La.App. 3 Cir. 3/6/98); 709 So.2d 303, 304, writ denied, 98-956 (La.6/5/98); 720 So.2d 681, this court held that 113“[f]alse statements that are inadvertent or inconsequential will not result in forfeiture.” However, we share the opinion of the WCJ, that Mr. Darby’s false statements in this matter were neither inadvertent nor inconsequential. Under the terms of Section 1208, the WCJ was not manifestly erroneous in holding that Mr. Darby’s false statements and glaring inconsistencies and misrepresentations allowed for forfeiture of all compensation benefits under La.R.S. 23:1208.

The most blatant and damaging misrepresentation made by Mr. Darby was the highly inflated estimate of his weekly wages. We understand that the nature of the sugar cane hauling industry is such that wages are not fixed and the drivers’ salaries are likely to fluctuate greatly from week to week. Mr. Darby’s representations of his average weekly earnings, however, were so disproportionate as to his actual earnings as to be absurd. During his testimony at the hearing Mr. Darby stated that he earned between $900.00 and $1,200.00 per week. Even when Mr. Darby submitted his correction sheet to adjust errors made during his deposition he merely adjusted his estimated weekly income from “$1,800.00 a week” to “$1,300 a week or a little less.” Mr. Darby’s actual weekly gross prior to his accident totaled anywhere from $180.00 per week to $815.00 per week. At no point did his weekly earning ever approach $1,300.00. In fact, his average weekly wage, based on the payment information provided by his employer, was approximately $389.00 per week. Such a gross misrepresentation concerning earned wages is precisely the type of material misrepresentation Section 1208 was enacted to prevent.

Mr. Darby’s clearly fraudulent misrepresentation of his weekly earnings alone provides sufficient support for the WCJ’s determination that Mr. Darby violated 1208. Combined with Mr. Darby’s statements concerning the severity of any physical |14symptoms associated with his alleged injury discussed in his first assignment of error, we find the WCJ had adequate evidence of a violation of Section 1208. Similarly, we find no error in the WCJ’s imposition of a $5000.00 fine against Mr. Darby for his violation of Section 1208. Therefore, Mr. Darby’s third assignment of error is also without merit.

Ultimately this case comes down to the credibility of the witnesses. The WCJ concluded that Mr. Darby was not a credible witness due to the inordinately large number of inconsistencies in his testimony at the hearing as well as during his deposition. We find that the WCJ was not manifestly erroneous in determining that Mr. Darby’s testimony was not credible.

DECREE

For the reasons stated above we affirm the finding of the WCJ. All costs of this appeal are assigned to the appellant, Mr. Darby.

AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

WOODARD, J., concurs and assigns written reasons.

PICKETT, J., concurs.

h SAUNDERS, J.,

dissents and written reasons.

It is the opinion of the majority that the constitutionality of La.R.S. 23:1208 is not properly before this court. While this writer agrees with the majority as to the affirmation of the Workers’ Compensation Judge’s ruling, I must dissent on the issue of constitutionality. As judges in the Louisiana Third Circuit, we give our oath to uphold the Constitution and the laws of the state. In my reading of this oath, our duty to uphold the Constitution of the state takes precedence over our duty to uphold legislatively enacted state law. I feel it is necessary to follow the law of the Louisiana Constitution and refuse to apply this statute, as it is violative of the designation of jurisdiction to the district court in all civil and criminal matters.

Additionally, I find this case distinguishable from Lanthier v. Family Dollar Store, 02-2663 (La.ll/27/Q2); 836 So.2d 5. In Lanthier, neither party raised the constitutionality issue at any point in the proceeding, either at trial or on appeal. Here, the claimant raised the issue on appeal after the WCJ found that he had violated Section 1208 and imposed a $5000.00 fíne. There is some authority to be found for the proposition that it is not necessary for the claimant to anticipate affirmative defenses, and therefore, the constitutionality of Section 1208 may be raised on appeal and still be appropriate. See Harris v. Monroe Building and Loan Ass’n, 185 La. 289, 169 So. 343 (1935). This was not a matter of the court raising the issue of constitutionality on | ?its own motion. For the above reasons I feel the majority should have reached the issue of the constitutionality of La.R.S. 23:1208 and found it to be unconstitutional for the reasons reiterated in the opinion.

| WOODARD, J.,

concurring.

Respectfully, while I agree with the majority’s ultimate result, I do not agree with the discussion regarding the alleged unconstitutionality of La.R.S. 23:1208. As Judge Saunders acknowledges, the majority does not believe that the issue is properly before the court. Nonetheless, he argues against the statute’s constitutionality. Therefore, it is necessary to address his argument, notwithstanding, that the issue is not before us in the instant case.

Judge Saunders’ main concerns are the criminal sanctions and civil penalties, which Section 1208 “allows workers’ compensation judges to impose.” I do not believe that Section 1208 allows a WCJ to impose criminal sanctions. While it does allow a WCJ to impose civil penalties, there is nothing unconstitutional in this grant of power.

A close reading of Section 1208 reveals that the statute, itself, does not give the WCJ the power to impose the criminal penalties or imprison claimants. This statute has been in effect, in some form, since 1914, when, obviously, the district courts had | ¡Jurisdiction. At that point, the violation was considered a misdemeanor, all penalties were provided for in the same subsection, and they could not be imposed without a conviction.

However, since the creation of WCJ’s in 1983, the statute has continued to evolve; the different penalties, once provided for in the same section, were broken down into separate subsections. Nevertheless, the statute permits the WCJ to impose, only, the penalties in two of these subsections, neither of which is criminal in nature. Specifically, subsection (D) expressly grants the WCJ the jurisdiction to assess civil penalties and order restitution; subsection (E) expressly grants the WCJ the jurisdiction to determine a forfeiture of benefits.

Moreover, subsections (A) and (B) simply define the violation and, therefore, require no reference to jurisdiction. Subsection (C) is the allegedly offensive section, as it permits the imposition of criminal penalties. However, nothing in this section gives the WCJ the power to impose these penalties. Therefore, the statute is not unconstitutional; rather, if the WCJ attempted to impose these penalties, s/he would be without jurisdiction to do so because the statute does not allow it — not because the Constitution does not allow it. Simply because this provision is located within the Worker’s Compensation Code does not make it inherently the province of the OWC. Nor, are all criminal statutes confined in location to the Criminal Code.

I appreciate that the beginning language of subsection (D) is ambiguous in that it could be interpreted to mean that the WCJ, also, has the power to impose the criminal penalties under subsection (C). The language reads:

In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge[.]

(Emphasis added.) Notwithstanding, when a statutory provision has two permissible interpretations, one which makes it unconstitutional and one which does not, we are | ¡¡required to give it whichever interpretation will uphold its constitutionality. “Statutes are presumed constitutional, and any doubt is to be resolved in the statute’s favor.”

Additionally, I believe that a review of the statute’s history reveals that the legislative intent supports my interpretation. The evolution of Section 1208, specifically, since the creation of WCJ’s in 1983, is significant to an analysis of the statute in its current form. Before 1983, clearly, the district courts had exclusive jurisdiction over Section 1208 claims, as they had jurisdiction over all workers’ compensation matters. In 1983, WCJ positions were established and were granted jurisdiction over all worker’s compensation matters. In 1988, the Act was amended, but the Louisiana supreme court found the amendments to be unconstitutional to the extent that they divested district courts of original jurisdiction over workers’ compensation claims. Within two months of that ruling, the legislature responded with constitutional amendments which left original jurisdiction with the district courts, “except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters.” (Emphasis added.) Nevertheless, I do not find that the criminal sanctions of Section 1208 constitute such an exception; therefore, the district courts have not been divested of the exclusive jurisdiction to impose them.

Furthermore, I believe that legislative history demonstrates that the split of jurisdiction between the WCJ and the district courts, based on the type of penalty involved, was intentional. As the statute evolved and the penalty sections were divided, the director of the OWC and the hearing officer were granted jurisdiction to impose the civil penalties and forfeiture of benefits. These are the same penalties which WCJs can currently enforce. Thus, since the penalties were first divided into | ¿subsections, the legislature has maintained a consistency in specifically granting power to the OWC to impose the noncriminal penalties, yet it has not attempted a grant of power to the OWC to enforce the criminal provisions. Additionally, I do not believe that the explanation for this can be as simple as being a legislative oversight. It is not as if the legislature merely left the criminal provisions untouched while amending the other provisions. In fact, it did make amendments to Section 1208’s criminal provisions. Significantly, however, the amendments never included a transfer of jurisdiction to the WCJ’s to enforce these criminal provisions.

Judge Saunders, also, challenges the constitutionality of Section 1208 because it allows the WCJ to impose civil penalties. However, the APA, which governs the administration of the Workers’ Compensation Chapter, clearly gives agencies broad enforcement powers, including the assessment of civil penalties, as long as there is a statutory predicate for doing so. He argues, further, that a Section 1208 violation is tortious in nature, rather than a workers’ compensation matter and, therefore, violates the Constitution. He relies on Sampson v. Wendy’s Management, Inc. for this proposition.

However, the reasoning of Sampson cannot be applied to Section 1208. The retaliatory discharge statute at issue in Sampson was applicable when an employee or applicant had filed for benefits “under the provisions of this Chapter or under the law of any state or of the United States.” The court provided examples of the statute (1) having been applied in a former case because an employee was discharged for having previously filed a suit under the Jones Act and (2) another example which involved a claim under FELA. The court noted that these examples demonstrated | K“the lack of connexity between the retaliatory discharge claim and the worker’s compensation claim.” Thus, it found that the retaliatory discharge statute addressed:

[A]n employment law issue which may arise in a variety of circumstances, one of which happens to involve workers’ compensation claims ... [accordingly, it would be illogical to require employees who did not assert a claim under the Louisiana Worker’s Compensation Act to file their claim for retaliatory discharge with this state’s Office of Worker’s Compensation Administration.

Conversely, Section 1208 applies only to claims made “for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter.” The authority to impose civil penalties, restitution, and forfeiture is patently limited to a determination involving only the particular claim, at issue, which must have been brought under the Louisiana Worker’s Compensation Act. Accordingly, the limiting language of Section 1208 ensures the exclusion of matters that are so attenuated to worker’s compensation claims as are the scenarios referred to in Sampson.

Furthermore, I cannot subscribe to the proposition that 1208 is unconstitutional simply because it entails a determination of fraudulent conduct, which presents an action in tort. Judge Saunders supports his contention with a Second Circuit case. However, the Second Circuit’s decision followed the reasoning of Sampson, which is inapplicable for the reasons already addressed. Additionally, the Second Circuit distorts La.R.S. 23:1291 in support of its argument. It found that:

La.R.S. 23:1291(B)(5), entitled “Creation, powers, and duties of the office of worker’s compensation administration,” states: To establish and promulgate in accordance with the Administrative Procedure Act such rules and regulations governing the administration of this chapter and the operation of the office as may be deemed necessary and which are not inconsistent with the laws of this state.

| fiHowever, the quote skips a significant portion of the article which states that it is the Director who has the duty “to establish ... rules ... not inconsistent with the laws of this state.” Section 1208 is a law, which the legislature enacted, not a rule that the Director promulgated. Thus, in context, La.R.S. 23:1291 does not apply to the Second Circuit’s argument that 1208 (a law — not a rule) is inconsistent with the laws of the state — the laws, in this case, being the Constitution. Notwithstanding, this is a minor point, considering that we do not need statutory authority to find a law unconstitutional if it is inconsistent with our Constitution.

However, our Constitution clearly and explicitly makes an exception to district court jurisdiction over workers’ compensation matters. Thus, the real question becomes whether the determination of fraud under Section 1208 is a workers’ compensation matter. There is no jurisprudence or other authority indicating that the ability to label an action as a tort takes it out of the realm of workers’ compensation. The Constitutional amendments to Article V, Sections 10 and 16, were clearly in response to the supreme court’s decision in Moore. In Moore, the court viewed workers’ compensation matters as civil matters, making a clear distinction between civil and criminal matters — nothing more. As this is the case that elicited a response from the legislature, amending the Constitution to overrule it, there is no reason to believe that the amendments granting the WCJ’s jurisdiction do not encompass all civil matters, as long as they are also workers’ compensation matters. As already noted, Section 1208 determinations are limited to claims made “for the purpose of obtaining or defeating any benefit or payment” under the Louisiana Workers’ Compensation Code. Accordingly, such claims are workers’ compensation matters and are permissible under our Constitution.

Furthermore, administrative agencies are often empowered with the ability to make determinations that, otherwise, would constitute a tort action. For example, many of the statutes that the Department of Environmental Quality, an agency which |7the APA also governs, is empowered to enforce, likewise, could give rise to a tort action on a theory such as nuisance. However, this does not divest them of jurisdiction, nor does it render the statutes unconstitutional. And, specifically, DEQ is also entrusted with the power to evaluate a violator’s subjective intent and upon finding “the violation was done intentionally, willfully, or knowingly,” may increase the civil penalties. The statute establishing this power is similar in structure to 1208 in that criminal penalties are provided for in this same statute, even though that statute clearly states that the criminal penalties cannot be levied without the district attorney’s prosecution. I believe that reason dictates that the same is true for Section 1208; although, I do not deny that the section could be more artfully drafted.

Therefore, while I agree with Judge Saunders that WCJs are without jurisdiction to impose criminal penalties under 1208, I find that it is because the statute, itself, does not grant the jurisdiction and not because the statute is unconstitutional.

      . La.R.S. 23:1208 (originally enacted as Acts 1914, No. 20, § 37(1)).

      . Id.

      . La.R.S. 23:1310.1.

      . Sampson v. Wendy’s Management, Inc., 593 So.2d 336 (La. 1992).

      . La.R.S. 14:7.

      . State v. Brenner, 486 So.2d 101, 103; see also State v. Dillon, 95-884 (La.App. 3 Cir. 1/31/96); 670 So.2d 278.

      . State in the Interest of J.A.V. (La.1990); 558 So.2d 214, 216.

      . La.R.S. 23:1310.1,

      . La.R.S. 23:1310.3.; see also Sampson, 593 So.2d 336.

      . Moore v. Roemer, 567 So.2d 75 (La.1990).

      . La.R.S. 23:1208 (amended 1992).

      . La.R.S. 23:1208(D)(E).

      . La.R.S. 23:1208 (amended 1992) (amended 1993).

      . La.R.S. 23:1291(B)(5).

      . La.R.S. 49:966(A).

      . See e.g. La.R.S. 30:2025(E).

      . 593 So.2d 336 (La. 1992).

      . Id. at 340.

      . Id.

      . Id. at 340.

      . Id. at 339-40.

      . Coleman v. Sheraton Pierremont, 25,452 (La.App. 2 Cir. 1/19/94); 631 So.2d 50.

      . Id. at 53.

      .La.R.S. 23:1291.

      . La. Const, art. V, § 16; La. Const, art V, § 10.

      . 567 So.2d 75 (La.1990).

      . Id.

      . La.R.S. 30:2019.

      . La.R.S. 30:2025(E)(1)(A).

      .See La.R.S. 30:2025.


source: Caselaw Access Project

author: I iWOODARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. B.A.S.
    No. 02-1131.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      J. Eddie Knoll, District Attorney, Avo-yelles Parish, Marksville, LA, for State/Appellee, State of Louisiana.
    G. Paul Marx, Appellate Attorney, Lafayette, LA, for Defendant/Appellant, B.A. S.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and ELIZABETH A. PICKETT, Judges.
   I iWOODARD, Judge.

On October 16, 2001, the State charged B.A. S., the Defendant, with aggravated oral sexual battery, a violation of La.R.S. 14:43.4. He entered a guilty plea. The trial court sentenced him to eight years at hard labor, without benefit of parole, probation, or suspension of sentence. He appeals.

Between 1997 and 1999, the Defendant committed aggravated oral sexual battery of his adopted daughter, a child under twelve years of age. By bill of information, the State charged him with aggravated oral sexual battery, a violation of La. R.S. 14:43.4. On December 4, 2001, he waived formal arraignment and pled not guilty. In March 2002, B.A.S. filed a motion to quash the bill of information, which the trial court ultimately denied. Subsequently, on March 20, 2002, he withdrew his not guilty plea and entered a guilty plea to the charged offense. On .May 21, 2002, the trial court sentenced him to eight years at hard labor, without benefit of parole, probation, or suspension of sentence. Consequently, both the Defendant’s attorney and the Defendant filed separate motions to reconsider sentence. The trial court denied both motions. The Defendant appeals.

Errors Patent

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent. After reviewing the record, we find one.

At the sentencing proceeding and in his written reasons for sentencing, the trial court incorrectly advised B.A.S. that he had three years from the date that his conviction and sentence became final to seek post-conviction relief. Therefore, we direct the trial court to inform him of art. 930.8’s provisions, which restrict the times for filing an application for post-conviction relief to two years from the date the judgment and sentence become final, by sending appropriate written notice to him within ten days of this opinion’s rendition and to file, in the record of the proceedings, written proof that he received the notice.

| ^Invalidity of the Offense

B.A.S. claims that the offense, for which the State charged him in the bill of information, was invalid because the legislature repealed its corresponding statute after the offense was committed but before the bill of information was filed. However, in the body of the assignment, he argues that the trial court should have considered the ten-year maximum penalty for oral sexual battery, La.R.S. 14:43.3, rather than the twenty-year maximum penalty for the repealed offense of aggravated oral sexual battery. He urges that, since he faced the twenty-year maximum provided for aggravated oral sexual battery, he was denied due process of law, as that provision had been repealed.

The Defendant is correct that our legislature repealed the criminal provision, designated as aggravated oral sexual battery, in its 2001 Regular Session, and that the repeal occurred before he was charged but after he committed the offense. La.R.S. 24:171 provides us with guidance in this situation:

The repeal of any law shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability, civil or criminal, incurred under such law unless the repealing act expressly so provides, and such law shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.

There is no language, in Acts 2001, Act No. 301, § 2 act that repealed La.R.S. 14:43.4, which provides for the extinguishment of criminal liability for those who violated it before its repeal. Thus, in accordance with La.R.S. 24:171, the Defendant was properly charged under La.R.S. Í4ASA. Furthermore, nothing in Act 301, § 2 provides for the repeal to be applied retroactively in order to extinguish criminal responsibility under La.R.S. 14:43.4 for acts committed while that provision was still in effect. In addition to La.R.S. 24:171, our supreme court has recently stated the following in State v. Sugasti:

|aThis court has consistently held that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. A defendant must be sentenced according to sentencing provisions in effect at the time of the commission of the offense.

(Citations omitted.)

In addition to the well-settled jurisprudence which provides for enforcement of the penalty provision in effect at the time of the commission of the offense, the legislature actually increased the penalty for conduct regarded as aggravated oral sexual battery. In the same act which repealed the provision, in question, the legislature amended the definition of rape to include oral sexual intercourse and subsumed the offense of aggravated oral sexual battery into the definition of aggravated rape. Thus, if the Defendant had committed the same offense, after the effective date of Act 301, he would have been exposed to life imprisonment, or even death, since the victim was under the age of twelve. Accordingly, this assignment lacks merit.

Excessiveness of Sentence

As his second assignment of error, the Defendant claims that his sentence is excessive. He pled guilty to aggravated oral sexual battery, an offense punishable by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence for not more than twenty years. The trial court sentenced him to only eight years at hard labor without benefits. It explained:

The Pre-sentence Investigation Report has been received and attached hereto.
In preparing this sentencing, the court has reviewed the entire record of the proceedings, the Pre-sentence Investigation Report, the applicable law, jurisprudence.
The court notes that this case — it has received input, such as letters from friends and family members. Also, I’ve taken evidence here, today. In viewing the Pre-sentence Investigation Report, it is noted that the defendant does not have a prior criminal record.
In reviewing the Sentencing Guidelines, set forth in Article 894.1 of the Code of Criminal Procedure, the court recognizes that the defendant should have known that the defendant [sic] was incapable of | ¿resisting his acts due to her young age. Additionally, the defendant in these proceedings is certainly in need of correctional treatment, and any lesser sentence that shall be imposed, will deprecate the seriousness of the defendant’s crime.
In reviewing the aggravating and mitigating factors, enumerated in the Louisiana Code of Criminal Procedure, Article 894.1, the court has found the following relevant to this offense:
(1)[B.A.S.] should have known that the victim of the crime was both, vulnerable and incapable of resistance because of her young age;
(2) [B.A.S.] used his position of authority as father of the juvenile to facilitate the commission of the offense;
(3) The offense resulted in the significant injury to the victim, who has received therapy as a result of the actions of [B.S.];
(4) [B.A.S.] has no history of prior criminal activity;
(5) [B.A.S.] has relinquished custody of the minor victim, and has no visitation, and no personal contact with the minor child;
(6) Additionally, the family’s requesting leniency; and the court’s aware of the defendant’s declining health and his advanced age.
In considering the testimony here, today, I am somewhat surprised by the testimony that has been presented by law enforcement that has completely overlooked the fact that there is an extreme debt that is owed to society in this case. I consider this to be a terrible crime, and one that this Court should not look upon lightly.
I am aware of the protections that have been afforded by [sic] the defendant, by family members in this case. The court court [sic] does not view those protections, in a favorable light.

Both the Defendant’s attorney and the Defendant filed independent motions to reconsider his sentence. The trial court considered the motions, jointly, in a hearing held July 16, 2002 and rendered the following ruling:

Well, as pointed out by Ms. Roy in her argument, this is a case where the court had ordered a pre-sentence investigation. That is a part of the record. I also gave Written Reasons for the sentence that I imposed; those are of record; and I adopt those same reasons here, today.
|SI also feel that the crime that has been committed here is one of a very serious and heinous nature; and that the sentence previously imposed is the appropriate sentence and, certainly, not excessive under the circumstances.
The position that the defendant was in, with supervisory authority over this child, what he did, the crime that he committed is such a grievous crime, and such a serious crime.
I do not feel that the request to reconsider sentence has merit. And, the original sentence that has been imposed stands as handed down, previously, of record in these proceedings.
The MOTION TO RECONSIDER is to be DENIED.

In his brief before this court, B.A.S. asserts several arguments in support of his claim that the sentence is excessive. He admits that the acts he committed were despicable but argues that he is a sixty-eight-year-old man, a sickly man (heart failure, Parkinson’s disease and after effects of a serious stroke) with no criminal history. He further urges that he terminated the behavior and submitted to treatment long before the State pressed charges, provided the court with a reasonable punishment plan, and offered to leave and live with his daughter in Georgia. Additionally, he served two years of duty in Korea and one year in Vietnam, has had several children of his own, and has served for many years as a foster parent. He asserts that, both, the victim and her mother urged the court not to impose a jail term, and law enforcement stated that they would not object to a lenient sentence. Finally, he maintains that the social workers sought criminal sanctions in order for him to be registered as a sex offender, not so that he could be incarcerated. Thus, the trial court could have imposed a sentence without hard labor and could have placed him on house arrest.

After reviewing the trial court’s reasons for sentencing and the Defendant’s assertions in his brief, we find that the trial court did not abuse its discretion in imposing only the eight-year sentence. The sentence is in the lower midrange. The trial court gave adequate reasons for the sentence it imposed. A sentence of ten years has been approved in similar circumstances. As the Louisiana Supreme Court stated |fim State v. Cook, , “[t]he only relevant question on review ... [is] ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ ” We find that it did not abuse its discretion in the present case, especially, since aggravated oral sexual battery is, now, considered aggravated rape, punishable by death or life imprisonment.

CONCLUSION

B.A.S. committed acts of aggravated oral battery on his adopted daughter, who is younger than twelve years of age. After pleading guilty, the trial court sentenced him to eight years at hard labor, without benefit of parole, probation, or suspension of sentence. For the reasons given above, we affirm the Defendant’s conviction and sentence. However, as the trial court incorrectly informed B.A.S. of the time limitation for applying for post-conviction relief, we order the trial court to inform him of La.Code Crim.P. art. 930.8’s provisions, by sending appropriate written notice within ten days of this opinion’s rendition and to file, in the record of the proceedings, written proof that he received the notice.

AFFIRMED AND REMANDED.

      . See State v. Narcisse, 426 So.2d 118 (La. 1983), cert. denied 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176.

      . 2001-3407, p. 4 (La.6/21/02); 820 So.2d 518, 520.

      . State v. Cochran, 98-786 (La.App. 3 Cir. 4/28/99); 734 So.2d 1247.

      . 95-2784, p. 3 (La.5/31/96); 674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).


author: |,AMY, Judge.

text:
    STATE of Louisiana v. Anthony GUILBEAU, Jr.
    No. 02-0972.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Earl B. Taylor, District Attorney, Alisa Ardoin Gothreaux, Opelousas, LA, for Ap-pellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Anthony Guilbeau, Jr.
    Court composed of NED E. DOUCET, JR., Chief Judge, OSWALD A. DECUIR and MARC T. AMY, Judges.,
   |,AMY, Judge.

The defendant was convicted of one count of possession of cocaine, weighing more than twenty-eight grams but less than two hundred grams, and one count of possession of marijuana with the intent to distribute. He was sentenced to two concurrent sentences of five years at hard labor. The defendant appeals. He contends that his counsel rendered ineffective assistance and that the trial court erred in denying his motion to withdraw his guilty pleas. For the following reasons, we affirm the defendant’s convictions. However, we vacate the sentence imposed for possession of cocaine finding it to be illegally lenient and we remand for resentenc-ing.

Factual and Procedural Background

The record indicates that, in January 1999, police officers were called to the home of the parents of the defendant, Anthony Guilbeau, Jr. The call related to a domestic disturbance. While officers were at the scene, in excess of three hundred and fifteen grams of cocaine and four pounds of marijuana were found. In March 1999, the defendant was charged by bill of information with one count of possession of cocaine, in excess of two hundred grams, but less than four hundred grams, a violation of La.R.S. 40:967 and one count of possession of marijuana with intent to distribute, a violation of La.R.S. 40:966(A)(1).

At a plea hearing on May 17, 2001, and pursuant to a plea agreement, the defendant entered guilty pleas to the charge of possession of marijuana with intent to distribute, and the reduced charge of possession of cocaine, in excess of twenty-eight grams but less than two hundred grams, a violation of La.R.S. 40:967. The defendant subsequently filed a motion to withdraw his plea of guilty on the possession of cocaine charge. Following a hearing, the motion was denied.

L,On May 24, 2002, the trial court sentenced the defendant to five years at hard labor, without benefit of probation, parole, or suspension of sentence on the possession of cocaine charge and five years at hard labor on the possession of marijuana with intent to distribute charge. The sentences were ordered to run concurrently to one another.

The defendant appeals, assigning the following as error:

1. Anthony Guilbeau received ineffective assistance of counsel.
2. The trial court erred in refusing to allow Anthony Guilbeau to withdraw his pleas of guilty.

Discussion

Errors Patent

As is required by La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of the record. Our review reveals a single patent error.

For the offense of possession of cocaine, twenty-eight grams or more, but less than two hundred grams, the trial court sentenced the defendant to five years at hard labor without the possibility of parole, probation, or suspension of sentence. However, in 1999, at the time the offense was committed, the sentencing range for the offense was ten to sixty years at hard labor and a fine of fifty thousand to one hundred fifty thousand dollars.

^Pursuant to Acts 2001, No. 403, § 4, the sentencing provisions related to La. R.S. 40:967 were amended, with the penalty provision for possession of twenty-eight grams or more, but less than two hundred grams of cocaine changed to a range of five to thirty years at hard labor. The amount of the fine required by La.R.S. 40:967(F)(l)(a) was not altered by the legislation. The amendment became effective prior to the imposition of the defendant’s sentence on May 24, 2002. The trial court noted that it was sentencing the defendant in accord with the new sentencing statutes.

However, we note that Section 6 of Act 403 specifically provides that the provisions of the Act “shall only have prospective effect.” Furthermore, in State v. Su-gasti, 01-3407 (La.6/21/02); 820 So.2d 518, the Louisiana Supreme Court referenced the legislative pronouncement of Section 6 of Act 403 and observed that, while the trial court should consider the new sentencing provision in imposing sentence, “the trial judge should not derogate from the penalty provision in effect at the time of the commission of the offense.” Id. at p. 5; 521. The supreme court states that if the legislature intended for the more lenient sentencing provisions of Act 403 |4to take effect immediately, “language signifying that intent could have easily been incorporated into the act.” Id.

Due to the supreme court’s discussion in Sugasti, we conclude that the trial court erred in sentencing the defendant under the revised sentencing range of La. R.S. 40:967, resulting in an illegally lenient sentence. Further, in State v. Williams, 00-1725 (La.11/28/01); 800 So.2d 790, the Louisiana Supreme Court considered whether an appellate court could recognize a trial court’s failure to impose sentence without benefit of probation, parole, or suspension of sentence when the trial court was required to do so by the statute. The supreme court observed that a defendant has neither a constitutional nor a statutory right to an illegally lenient sentence and concluded that an appellate court may recognize an illegally lenient sentence on patent error review. Addressing constitutional concerns over such a recognition, the supreme court explained: “[W]hen a court complies with a nondiscretionary sentencing requirement, i.e., a mandatory minimum term or special parole provision(s), no due process violation is implicated because neither actual retaliation nor vindictiveness exists.” Id. at p. 10; 798. The appellate court’s ability to recognize the illegally lenient sentence was found to be authorized, in part, by La.Code Crim.P. art. 882, Subsection A of which provides: “An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.” Williams, 00-1725; 800 So.2d 790. Accordingly, we recognize the defendant’s sentence as illegally lenient and vacate the defendant’s sentence for possession of cocaine, in excess of twenty-eight grams, but less than two hundred |Bgrams, and remand for resentencing in accordance with La.R.S. 40:967(F) as it existed at the time of the commission of the offense.

Ineffective Assistance of Counsel

In his first assignment of error, the defendant argues that his trial counsel was ineffective for allowing him to enter his guilty pleas without first having the trial court conduct a hearing on a pending motion to suppress. Further, he asserts that he should have then been advised by counsel to enter his plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to review the motion to suppress on appeal. Finally, he contends that his attorney was ineffective in failing to communicate with him prior to the day of trial.

With regard to a defendant’s claim that his counsel rendered ineffective assistance, the Louisiana Supreme Court has explained:

A criminal defendant is guaranteed the effective assistance of counsel. United States Sixth Amendment; La. Const, art. I, § 13; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Washington, 491 So.2d 1337 (La.1986). To establish a claim of ineffective assistance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and, that counsel’s professional errors resulted in prejudice to the extent that it undermined the functioning of the adversarial process and rendered the verdict suspect. Strickland v. Washington, supra; Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). This does not mean “errorless counsel [or] counsel judged ineffective by hindsight, but counsel reasonably likely to render effective assistance.” State v. Ratcliff, 416 So.2d 528, 531 (La.1982).
A claim of ineffectiveness is generally relegated to post-conviction, unless the record permits definitive resolution on appeal. E.g., State v. Prudholm, 446 So.2d 729 (La.1984). However, when the record is sufficient for review, this Court will reach the merits of complaints about counsel’s performance and grant relief when appropriate. E.g., State v. Hamilton, 92-2639 (La.7/1/97), 699 So.2d 29, 32-35.

State v. Bright, 98-0398, p. 40-41 (La.98-0398); 776 So.2d 1134, 1157.

|fiThe record indicates that the motion to suppress focused on by the defendant in his brief, was filed on April 3, 2001. The motion alleges the existence of a lack of probable cause for arrest, resulting in the unlawful search for and seizure of the cocaine. The defendant sought suppression of a statement to the police, the cocaine, and any other results of the search or statement. As is suggested by the defendant, the record does not reveal that the motion was ruled upon prior to the plea hearing.

Our review of the defendant’s argument, along with review of the record, indicates that the record is insufficient to determine this issue on appeal. The focus of the defendant’s argument is essentially on trial strategy, i.e., whether any decision by counsel regarding the motion to suppress was valid. Furthermore, the argument regarding whether counsel failed to adequately communicate with the defendant also may require evidence not contained in the record. While the defendant and his parents testified regarding contact with trial counsel, or lack thereof, the attorney did not testify. As the record is insufficient for review on appeal, consideration of this assignment is relegated to post-conviction proceedings should the defendant choose to avail himself of that opportunity. Motion to Withdraw Guilty Plea

The defendant asserts the trial court erred in denying his motion to withdraw his guilty plea. In his brief to this court, the defendant references his plea hearing and what he contends are indications that his plea was not voluntarily entered. He states:

In the present case, the trial court was put on notice that Anthony Guilbeau expressed an unwillingness to enter a plea of guilty. Twice he stated that the cocaine was not his. This can best be seen by the recess ordered by the court and the fact that Anthony Guilbeau was twice Boykinized by the court. Anthony Guilbeau only pled guilty because, as he testified to, his attorney told him he would go straight to Angola to serve twenty years if he didn’t. His attorney also told him that he would be prejudiced by a jury trial because of his hair and teeth.

l7(Record citations omitted.)

In State v. Bouie, 00-2934, p. 9 (La.5/14/02); 817 So.2d 48, 53, the Louisiana Supreme Court explained:

A trial judge has broad discretion in ruling on a defendant’s motion to withdraw his guilty plea before sentencing. La.Code Crim.Proc. art. 559. When circumstances indicate that the plea was constitutionally invalid, the trial judge should allow the defendant to withdraw his plea. State v. Toney, 412 So.2d 1034, 1035-36. In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court stated that the validity of a guilty plea turns on whether the defendant is informed of the rights he waived and whether his decision to waive his rights by pleading guilty is knowing and voluntary. See also State v. Jones, 404 So.2d 1192, 1196 (La.1981); State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

“On appeal, a trial court’s denial of a motion to withdraw a guilty plea will not be reversed if the record clearly shows that the defendant was informed of his rights and of the consequences of his plea, and the plea was entered voluntarily. State v. Grogan, 00-1800, p. 3 (La.App. 3 Cir. 5/2/01); 786 So.2d 862, 864. However, “ ‘an otherwise valid plea of guilty is not rendered involuntary merely because it was entered to limit the possible maximum penalty to less.than that authorized by law for the crime charged.’ ” Bouie, 00-2934, p. 9; 817 So.2d at 53, quoting State v. Compton, 367 So.2d 844, 847 (La.1979).”

A review of the extensive transcript from the guilty plea proceeding indicates the trial court advised the defendant of his rights as is required under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and that the defendant waived these rights, including his right to a trial. Additionally, the trial court advised the defendant of the possible penalties he could receive, explaining that a conviction associated with the possession of cocaine charge exposed the defendant to a sentencing range of ten to sixty years and that the possession of marijuana with intent to distribute Learned a sentencing exposure of five to thirty years. Although the defendant claims his attorney pressured him into entering the plea, the defendant was given several opportunities at the plea hearing to proceed to trial but he refused and chose to enter into the guilty pleas. When the trial court asked the defendant whether he had been threatened or forced in any way into entering the plea, the defendant responded “No, sir.”

In his motion to withdraw the guilty plea, the defendant asserted he desired to change his plea to not guilty due to his attorney’s ineffectiveness in failing to have a hearing on the motion to suppress and in failing to communicate with him and his family. At the hearing on the motion to withdraw, Anne Guilbeau, the defendant’s mother, and Anthony L. Guilbeau, Sr., the defendant’s father, testified as to defense counsel’s failure to communicate with them and their son.

However, Mr. and Mrs. Guilbeau’s testimony also demonstrated that sufficient information was provided to indicate that the defendant was reducing his sentencing exposure by entering a plea to the reduced charge. Additionally, Mr. Guilbeau testified in pertinent part:

Q. But I’m talking about the smaller— in other words, did all of you understand that what he was charged with, he could get a twenty to sixty year sentence and if he pled guilty on a plea bargain, he could get just a ten to sixty year sentence?
A. That’s what Mr. Robideaux told us.
Q. But did you understand what he told you?
A. Yeah.
Q. Okay. And isn’t it true that after Mr. Robideaux told y’all that, you and your wife talked together and talked with Anthony and y’all encouraged him to plead guilty?
|cA. Yeah, we told him to go — we asked him the deal, the man said that’s all he can do. Take that.

At the hearing on the motion to withdraw, the defendant testified the drugs found in the house did not belong to him. Also, the defendant testified his attorney told him to waive his trial by jury, explaining in pertinent part:

Q. And at that time did he tell you that the people in St. Landry Parish were prejudiced against black people?
A. At the time when we waived the jury, it’s like he told me that honestly you don’t want to stand against the jury because, you know, the hair — it’s a very prejudiced system, the hair and the teeth, you wouldn’t stand a chance. And I was like, I—
Q. Y’all waived the jury?
A. Yes, sir.
Q. Did he talk to you at that time about these things?
A. No, he just told me what he was going to do and I was — I asked him if that was a good decision and he said yeah and I followed.

The defendant also testified that his attorney forced him, into entering the plea despite repeatedly telling his attorney he did not want to enter the plea because he was innocent. The defendant explained:

Q. And the only reason you pled was because of the pressure put on him by saying you was going to get thirty or forty years rather than ten years?
A. He told me if I have to go to trial I was going to lose and I was going to get twenty years and get shipped straight to Angola today, that same day, and I was prepared to go to trial, you know, and I told him I know I’m innocent. I know some kind of way you can prove my innocence.
Q. Alright, well, listen to this, up until that point in time, it was your understanding that you were going to trial?
A. I was going to trial. •
ImQ. And at that moment when you got in the courtroom that’s when he told you that you could not win and that you had to plead guilty?
A. The minute I got in there.
Q. Did you insist that you go to trial? A. I insisted a lot of times. That’s part of the reason why I recessed because I wouldn’t make up my mind because he was trying to tell me his opinion and I’m saying I want to go to trial. So he’s telling me, you know, don’t be stupid and I’m like I really don’t know what to do. I’m innocent and no one wanted to hear me.
Q. So are you saying this to the Court, that you not one time did you sit down and discuss the facts and circumstances of your arrest as pertaining to your guilt or innocence with Jason Robideaux who was hired to represent you? Not one time?
A. Not one time, sir. Not once.

The defendant further testified that on the day of trial he was in shock and pressured and he did not know what he said in court. The following exchange also occurred between the defendant and the assistant district attorney:

Q. The day that you pled guilty, you understood that if you went to trial and you were convicted, the least amount of time you would get sentenced to was twenty years?
A. Yes, sir.
Q. Okay, and you understood that if you chose not to go to trial and you pled guilty that the least you would get would be ten years instead of twenty?
A. No, sir.
Q. You didn’t understand that?
A. No, sir.
Q. You didn’t tell the judge you understood that?
A. I ain’t had a chance. I mean, I was pressured. All he kept saying was wait for a new law and telling me — I’m telling him let’s go to trial. He’s telling me you’re going to get twenty and shipped to Angola. So I just sit here — I didn’t even know what to say, you know.
InQ. I asked you—
A. I didn’t understand that thing you was talking about because you were saying something about ten and then he said something about a new law and something about twenty. That’s all I remember. That’s all I remember.
Q. Okay, did you tell the judge that you understood what you were doing? A. I never talked to the judge. I didn’t know what conversation — all I thought my lawyer was supposed to talk to the judge for me and he’s telling me he can’t do nothing so I’m sitting crying because I can’t talk to nobody. I don’t know how to go through that. I’m not a lawyer, sir.
Q. You were sitting on the witness stand like you are now in that courtroom across the street. The judge asked you a lot of questions about whether or not you understood, right?
A. Sir, I barely remember. I know he was asking me some questions but I was in shock, sir. I was confused. I didn’t know what to think, crying, talking to my mama, I was really confused. I don’t remember what this law he was saying to me.
Q. Okay. So you don’t remember anything that happened the day you pled guilty?
A. I remember whenever they — whenever I had to plead guilty and everything. I remember that, but I don’t remember what was said and anything. All I remember he was telling me don’t be stupid, sign here, sign there, you know. I looked at my mom like I don’t know what to do, Mom. My lawyer don’t even want to go to trial. I want to go to trial, You know, they kept — they pressured me like just follow what he says. And then after a while I’m like follow what he said? And I’m like, you know, I still don’t understand what he told me. He told me he was coming back to me and talk to me, discussing the matter, and he never came back. He never came back. He never came back and talked. He said as soon as I get put in jail he was coming back and talk to me. He never came back talked [sic] to me.

When asked why he told the judge he understood the plea agreement, the defendant stated he was pressured. Further, the defendant testified, while he was being held in jail, he was informed him if he did not admit that the cocaine belonged to him his mother’s home would be seized. The defendant asserted that at the time Lathe guilty plea was entered he understood what guilty meant and that he was not going to trial.

The trial court denied the motion, providing an extensive review of the plea hearing and explaining:

THE COURT: ... The Court went through an extensive boykinization with this gentleman and I remember it really well. I am inclined to agree that initially he appeared reluctant to enter the plea. However, as we began, the information that I garnered from the transcript of the sentencing and the boykini-zation which will reflect this, I reviewed that yesterday evening and again this morning indicates that this young man had a high school education. He went to one year of college at what’s now the University of Louisiana at Lafayette which I assume was University of Southwestern Louisiana at the time. He attended six months of T.H. Harris for non-destructive testing and six months at South Louisiana College. He’s got education. I find him to be — and today again I find him to be a reasonably intelligent young man, understands his surroundings. I find him to be savvy, aware of what’s occurring. In the boyk-inization that I reviewed, I noted that initially I asked him if Jason Robideaux, at page fourteen, had been your attorney throughout this matter. Is that correct? His answer was, ‘Yes, sir.” And incidentally, he was the only one being boykinized on that day. The only people in the courtroom were me, his family, my court staff, the prosecuting attorney, and the defense attorney. There was nothing to rush him, no moving along rapidly, none of this. He said, ‘Yes, sir.” I said have you had the opportunity to discuss your case in general with Mr. Robideaux throughout this matter? His answer was, “Yes, sir.” “You’ve particularly had the opportunity to discuss your decision today to withdraw your not guilty pleas and enter a guilty plea to the amended bill of information being filed by the district attorney?” “Yes, sir.” “Are you satisfied with Mr. Robideaux’s services?” ‘Tes, sir.” “You have any complaints about him at all?” “No, sir.” “That being none, we will proceed.” We got to the section where the gentleman, I informed him explicitly on at least two, probably three occasions, that if he pled guilty to the charge of possession of cocaine in excess of twenty-eight and less than two hundred grams he was looking at a minimum of ten years in prison, maximum of thirty years, possession with intent to distribute marijuana was the minimum of five years, maximum of thirty years and that the ten year sentence, ten to thirty, was a maximum mandatory — I mean mandatory sentence. I had no choice. I told him that three times. I asked him have you been promised anything, any leniency, or given to understand you would receive only a certain sentence other than the written plea of guilty form which in fact he signed and was made part of the record. I explained to him all the rights he had, every single one of them, I did it three times. 113His right to trial, his right against self — incrimination, the presumption of innocence, along with his appellate rights, his right to call witnesses, his right to cross examine witnesses, and he indicated to me that he understood. The Court’s impression throughout was that he was reluctant because he didn’t want the ten years. He didn’t want to do any time. But he well understood his options because I stopped the boykinization at one point and I said I am not satisfied that this young man wishes to enter these pleas and I’m going to stop to discuss it with his lawyer. They left. He came back. I went through the boykinization that I normally do from the beginning. I started from the beginning and went through all the rights again. I asked him if he realized by pleading guilty he was in effect admitting or confessing that he’s committed these crimes at page twenty-two of the transcript. He said, “Yes, sir.” I went through the multiple offense habitual offender information with him. He said he understood all of that. I asked him what happened, what resulted in you being charged with these crimes. I wanted an allocution. The first thing he said was, “It wasn’t in my possession.” I said, “Okay. I don’t know what to do any more but I’m not going to accept this plea. I refuse to accept it. I don’t think it’s voluntarily. I don’t think — he doesn’t want to plead. We are here to go to trial. We shall go to trial. An election was made that he have an opportunity to speak to his parents and his lawyer. When they returned, I was informed that while reluctant he understood his chances were better by entering a plea than taking his chances on the higher charges, the more difficult charges. We went through the boykini-zation process again. At page twenty-three I asked him, “They found some cocaine in your mother’s home when you were arrested.” ‘Tes, sir.” “Whose cocaine was it?” “Sir, it was mine.” My response, “I didn’t hear you.” “It was mine.” “It was your cocaine and it was three hundred and fifteen grams of cocaine approximately?” “I don’t know, sir” ‘Tou’re going to have to speak just a little bit louder, Mr. Guilbeau.” “I don’t know, sir” “Did you have cocaine that was found and recorded by the district attorney’s office?” “Honestly, Mr. Judge, I’m not — the cocaine — the reason why I’m tripping on the cocaine it wasn’t really mine. It was my brother’s friend and it was in there so I took the charge.” Everybody knew at that point that he was making allegations. He had the benefit to discuss that with his lawyer. The Court has had the benefit of Mr. Robideaux’s services in defending his clients throughout and I can tell you that I find him to be a good lawyer. They went back and discussed it once again. Mr. Robideaux then said that he was going to intercede as counsel. ‘Tour Honor, I’ve heard this but under the legal definition of possession ...” “I’ve heard this”, he says, so he discussed that with his lawyer,” ... but under the legal definitions of possession based upon the statements he made and the proximity of him to the drugs, and statements made by his parents, the district attorney can prove that he was in possession, whether it’s direct or constructive of that cocaine. Now whether some other people also had claim to it, I’m not defending those other people. But there is a factual basis for this man to plead to that possession of cocaine charge, | 14your Honor. And I’ve tried to explain to him that if other people also had a claim to it that doesn’t exculpate him, your Honor. I went on then at page twenty-four to explain to Mr. Guilbeau, “This is called an allocution. What that means is you’ve got to tell me why you were arrested and what you did.” Now this was after the discussion with Mr. Robideaux, Mr. Robideax’s intercession. “Now, did you have possession of that crack cocaine at your mother’s home when you were arrested?” ‘Tes, sir.” “What else did they find when you were arrested that was at your mother’s home?” “Marijuana.” “How much marijuana?” “About four pounds.” What I’m called upon to do is determine, and it’s controlled by Article 599 of the Louisiana Code of Criminal Procedure— 559, and this is discretionary with this Court. Basically what 559 states, the Court may permit a plea of guilty to be withdrawn at any time.... So the law extant on this has been in existence since time in memorial [sic]. It hasn’t changed any. It’s really very simple. I’ve got to make a determination. When this young man ultimately entered his plea did he do so voluntarily and intelligently? At the time I found that he did. He comes before me today and in the motion makes allegations relative to his attorney, makes allegations relative to the fact that he did not understand. He didn’t know that it was ten years. He points the finger at his brother, perhaps another friend. It wasn’t his dope, it was someone else’s dope. That may be. I know that he had the opportunity — we were ready to go to trial. No one else was scheduled for trial. He waived his jury trial. We were prepared and he was informed. After an extensive boyk-inization he elected knowing all that was out there that he could make an election. I want to go to trial, I can go to trial. And I told him you can go to trial. We’re going to have a trial. Then he said no, no, no, no, no. They went and discussed it and came back. Ultimately he pled guilty. He pled guilty to possession of twenty-eight grams and less than two hundred grams of cocaine and possession with intent to distribute marijuana, 4.75 pounds or thereabouts. I don’t think that I am allowed to question the tactics, strategy, motives of Mr. Robi-deaux in not pursuing the motion to suppress after I certainly took pains at great length to explain to this young man what his rights were, if he understood them without any time restraints, any time pressures, and I find that his guilty plea was voluntary, knowing and intelligent and it was an election he made. He elected to take the sure sentence of ten to thirty years as opposed to rolling the dice on a trial of twenty to sixty years. That’s my finding at this time.

Having reviewed the plea hearing, we find it supportive of the trial court’s reasoning in denying the motion to withdraw the guilty plea. Accordingly, we find no abuse of discretion in the trial court’s determination to deny the motion. This assignment lacks merit.

_J_^DECREE

For the foregoing reasons, the defendant’s convictions are affirmed. The defendant’s sentence imposed by the trial court for the conviction under La.R.S. 40:967 is vacated and remanded for resen-tencing in accord with this opinion.

CONVICTIONS AFFIRMED. SENTENCE FOR POSSESSION OF COCAINE VACATED AND REMANDED FOR RESENTENCING.

      . At the time of the commission of the offense, La.R.S. 40:967(F) provided:
      F. Other penalties for possession. (1) Except as otherwise authorized in this Part:
      (a) Any person who knowingly and intentionally possesses twenty-eight grams or more, but less than two hundred grams, of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than ten years, nor more than sixty years, and to pay a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars.

      . After amendment by Acts 2001, No. 403, § 4, La.R.S. 40:967(F), now provides:
      F. Other penalties for possession.
      (1) Except as otherwise authorized in this Part:
      (a) Any person who knowingly or intentionally possesses twenty-eight grams or more, but less than two hundred grams, of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule 11(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars.

      . The supreme court noted that, Acts 2001, No. 1163, which related to sentencing changes made to La.R.S. 14:98(E), third and fourth offense operating a vehicle while intoxicated, specifically stated that the penalty provisions were applicable "upon conviction.” Furthermore, Act 1163 did not contain wording indicating that it would apply prospectively only.


author: ^J^EZELL, J.

text:
    Charley CHENEY, et al. v. COREGIS INS. CO., et al.
    No. 02-450.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Christopher J. Roy, Alexandria, LA, for Plaintiff/Appellant: Charley Cheney.
    Daniel G. Brenner, Bolen, Parker, etc., Alexandria, LA, for Defendants/Appellees: Coregis Ins. Co., Rapides Parish School Board, Johnny R. Shaw.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   ^J^EZELL, J.

This appeal arises from a survival action brought by the heirs of Navern Rhodeman, Jr. against Johnny Shaw, Mr. Shaw’s employer, and its insurer. Mr. Rhodeman’s succession representative, Charles Cheney, appeals the trial court’s finding that the estate failed to prove that Mr. Rhodeman consciously suffered pain before his death and the ruling that the succession representative could not recover Mr. Rhode-man’s medical and funeral expenses. For the following reasons, we affirm the decision of the trial court in part and reverse in part.

The facts of this case are undisputed. On June 5, 1997, Mr. Rhodeman was riding his bicycle on Eddie Williams Boulevard in Alexandria. Johnny Shaw was driving a van owned by his employer, the Rapides Parish School Board, in the same direction. Mr. Shaw saw Mr. Rhodeman on his bicycle as he approached him in the van. Mr. Shaw glanced down at his speedometer and struck Mr. Rhodeman from behind. Mr. Rhodeman suffered a compressed skull fracture and died as a result.

At the time of the accident, Mr. Shaw exited his van to check on Mr. Rhodeman, who was then on the ground. Mr. Shaw saw Mr. Rhodeman blink his eyes twice, then close them half-way. Mr. Rhodeman did not make any sounds or move his arms or legs while Mr. Shaw was with him. Mr. Shaw then left to go get help. No one ever saw Mr. Rhodeman conscious again. The accident report filed in response to this incident noted the time of the accident as 11:33 a.m., and the death certificate placed the time of death at 12:15 p.m.

Mr. Cheney, along with other heirs and legatees, filed wrongful death and survival actions against Mr. Shaw, the Rapides Parish School Board, and Coregis, the School Board’s insurer. The wrongful death actions were dismissed, as none of the heirs were related in the degree required to bring a wrongful death action. Only the | ¡.survival action filed by Mr. Cheney in his capacity as administrator of Mr. Rhodeman’s succession remained. The trial court granted a summary judgment in favor of the Defendants, which was reversed by this court. Cheney v. Coregis Ins. Co., 00-1576 (La.App. 3 Cir. 2/28/01), 782 So.2d 1121, Writ denied, 01-773 (La.5/4/01), 791 So.2d 659. The case was remanded for trial on the merits. The trial court found that Mr. Cheney failed to prove by a preponderance of the evidence that Mr. Rhodeman consciously suffered prior to his death. From this decision, Mr. Cheney appeals.

In his appeal, Mr. Cheney asserts three assignments of error: that the trial court applied an incorrect burden of proof, that the trial court erred in its conclusion that Mr. Rhodeman did not suffer from the time of impact until the time of death, and that the trial court erred in refusing to allow Mr. Cheney as succession representative to recover the medical and funeral expenses incurred as a result of the accident.

In his first assignment of error, Mr. Cheney claims that the trial court applied an incorrect burden of proof. In its written reasons, the trial court stated that “the plaintiffs failed to prove beyond a preponderance of the evidence that Rhodeman sustained the injuries claimed.” It is obvious that the trial court applied the correct standard of review to these facts, as “beyond a preponderance of the evidence”, is not a legal burden of proof. It is clear that the trial court intended to say “by” instead of “beyond” and that the word “beyond” was a simple inadvertence in the reasons for judgment. This assignment has no merit.

In his second assignment of error, Mr. Cheney alleges that the trial court committed error in finding that Mr. Rhodeman did not suffer prior to his death. A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 5491 aSo.2d 840 (La.1989). In order to reverse a trial court’s findings of fact, an appellate court must, after reviewing the record in its entirety, find that 1) a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State through DOTD, 617 So.2d 880 (La.1993). The reviewing court must always keep in mind that “[i]f the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

In this case, the record contains little evidence as to the state of Mr. Rhodeman after the accident. The only witness to see Mr. Rhodeman even possibly conscious was Mr. Shaw. Even then, Mr. Rhodeman did not move or moan. He simply blinked his eyes. When the ambulance arrived on the scene, the emergency medical technicians found Mr. Rhodeman unconscious. He was likewise unconscious when he arrived at the hospital. In his deposition, Dr. Frank Brinkman, the treating physician, testified that while blinking could have been a “life response,” he stated that he could not say for sure that it was, or that Mr. Rhodeman was suffering. While what happened to Mr. Rhodeman was truly tragic, based on what little evidence was present in the record, we have no choice but to conclude that there was, in fact, a reasonable basis for the findings of the trial court. Therefore, the trial court’s ruling cannot be manifestly erroneous and will remain undisturbed.

Finally, in his third assignment of error, Mr. Cheney claims that the trial court erred in failing to allow him, as the succession representative, to recover the medical expenses and funeral expenses incurred as a result of the accident. Louisiana Civil |4Code Article 2315.1(A) and (B) state:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.
B. In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased’s succession representative in the absence of any class of beneficiary set out in Paragraph A.

As a result of the accident, Mr. Rhodeman incurred medical expenses totaling $2,864.00. His estate is left to pay these bills. Since these debts were incurred as a direct result of the accident and were incurred before Mr. Rhodeman was declared legally dead, there is no question that under Article 2315.1, Mr. Cheney, as succession representative, is entitled to recoup these expenses. The Defendants even admit to such in brief. Accordingly, Mr. Cheney is hereby awarded $2,864.00.

Mr. Cheney also seeks to recover an additional $3,712.42 in funeral expenses in-eurred as a result of Mr. Rhodemans death. As noted above, if there is no surviving spouse, child, parent or sibling, Article 2315.1(B) (emphasis ours) gives the succession representative “the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense.” Acts 1986, No. 211 amended La.Civ.Code art. 2315 by deleting certain language from that article and enacting La.Civ.Code art. 2315.1 and La.Civ.Code art. 2315.2 to replace the deleted | slanguage. The original amendment allowed the succession representative to recover “medical and funeral expenses only.” Acts 1987, No. 675 “increased the damages recoverable” to those now in the statute. F.L. Maraist and T.G. Galligan, Jr., Louisiana Tort Law § 18-2(d) (Michie 1996). It is clear that the funeral expenses are damages caused by the accident. Therefore, they fall within the scope of La.Civ.Code art. 2315.1(B). Mr. Cheney, as succession representative, should be allowed to recover the funeral expenses. To disallow this would be to give a windfall to any tortfeaser whose negligence kills someone with distant or no relatives. He is hereby awarded $3,712.42 for funeral expenses.

For the reasons stated above, the judgment is reversed to include an award of $6,576.42 for medical and funeral expenses in favor of Mr. Cheney and is affirmed in all other respects. Costs of this appeal are to be split between the parties.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.