text:
    STATE of Louisiana v. Dustin K. RUNYON.
    No. 06-823.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      John F. Johnson, District Attorney Bradley R. Burget, Assistant District Attorney, Vidalia, LA, for State of Louisiana.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, Counsel for Defendant/Appellant: Dustin K. Runyon.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, MICHAEL G. SULLIVAN, Judges.
   SULLIVAN, Judge.

11 Dustin Runyon was convicted of manslaughter and attempted second degree murder. He was sentenced to forty years at hard labor for his manslaughter conviction and forty years at hard labor with ten years of the sentence being without the benefit of parole, probation, or suspension of sentence for his attempted second degree murder conviction. The two sentences were ordered to run concurrently.

On appeal, Defendant’s conviction for manslaughter was upheld, but his conviction for attempted second degree murder was reversed on the basis that the evidence supported only a verdict of aggravated battery. Therefore, a conviction for the lesser offense of aggravated battery was entered, and the matter was remanded for resentencing on that conviction. Defendant’s sentence of forty years, the maximum, on his conviction for manslaughter was found to be excessive under the facts of this case, and the matter was remanded for resentencing on that conviction as well. State v. Runyon, 05-36, 05-104 (La.App. 3 Cir. 11/2/05), 916 So.2d 407, writ denied, 06-1348 (La.9/1/06), 936 So.2d 207.

On remand, the trial court sentenced Defendant to ten years for his aggravated battery conviction and thirty years for his manslaughter conviction and ordered that the sentences run consecutively. Defendant was given thirty-six months to file a motion to reconsider sentence, but no motion to reconsider sentence was filed. Defendant contends that the trial court erred in imposing the same sentence on remand of the case in direct violation of this court’s order and that his two sentences are excessive because they total forty years.

Facts

The facts are taken from this court’s opinion in the original appeal:

On the night of March 8, 2003, Defendant Runyon, his sister, Jamie Bailey, her boyfriend, Defendant McDonald, and friends William ^Meredith and Keith Warren went fishing at Larto Lake in Catahoula Parish. After they were there for about three and one-half to four hours, the victims, Mr. Dulworth and Mr. Wiley, and their friend, Amy Denny, arrived. An altercation occurred between the two parties, which resulted in Mr. Wiley’s death and Mr. Dulworth being seriously injured.
Defendants Runyon and McDonald, Mr. Warren, Mr. Meredith, and Ms. Bailey presented themselves to the Cata-houla Sheriffs Department the evening of March 10, 2003, after learning Mr. Wiley died as a result of injuries inflicted during the altercation. They all made statements to the police. Defendant Runyon’s and Defendant McDonald’s audio statements were played for the jury during the trial. Mr. Dul-worth, Ms. Denny, and Defendant Runyon testified at trial about the events that transpired that night upon their arrival at Larto Lake.
Mr. Dulworth testified that, earlier in the day, he, Ms. Denny, her brother Barrett, and Mr. Wiley went to a camp at Larto Lake. In the evening, they left the camp and went to Noble’s Bar. Mr. Dulworth testified that he consumed alcohol at the camp, but not at the bar because he was only eighteen years old at the time. He also testified that Mr. Wiley consumed alcohol at the camp and at the bar and was intoxicated. The group of four left the bar around 9:00 p.m. Barrett Denny was dropped off at home. The other three, who were in Ms. Denny’s car, picked up Mr. Wiley’s truck, a jacked-up 4x4 Chevy Blazer, to go mud riding. Mr. Wiley drove to the dam near the bridge “where all the kids go.” Mr. Dulworth testified that upon their arrival, they saw a couple of vehicles down by a fire. Thinking it might be someone they knew, Mr. Wiley drove down the hill and turned around in the water. Mr. Dulworth testified that Mr. Wiley “cut a little donut” in the water; Ms. Denny testified that Mr. Wiley spun his tires. Ms. Bailey and Defendant McDonald were fishing nearby. Mr. Wiley pulled up to the couple and asked if they were catching any fish; he was not belligerent, mean, or condescending. While Mr. Wiley was talking to the couple, Defendant Runyon, Mr. Meredith, and Mr. Warren, who were fishing on the other side of the lake, came over to where Mr. Wiley had stopped.
According to Mr. Dulworth, one of these three men was worried that Mr. Wiley might have run over Ms. Bailey and/or Defendant McDonald, and “a little argument” arose. Mr. Dulworth testified that he did not recall Mr. Wiley’s response to the bickering because he was not paying close attention to what was going on, but he testified he would have noticed if Mr. Wiley had gotten loud. Mr. Dulworth testified that one of the three guys told them to go to the other side of the road and that he understood the comment to mean they wanted to fight.
Ms. Denny testified she was sitting between Mr. Wiley and Mr. Dulworth and Mr. Wiley did not get mad, scream, or curse at the guys. |sOne of the three guys repeatedly told Mr. Wiley that he almost ran over Ms. Bailey and Defendant McDonald. According to Ms. Denny, Mr. Wiley was apologetic and said he did not mean to scare the couple. She identified Defendant Runyon as the most vocal of the group and testified that he told them they could handle things across the bridge. According to Ms. Denny, Mr. Wiley agreed to go to the other side of the bridge, but “he kind of laughed ... like it was a joke.” Mr. Wiley drove down the road, turned around, drove back, then pulled his truck off on the other side of the road.
Mr. Dulworth testified that, as they were sitting there, the others told them to come back. Ms. Denny testified that, when they got to the location where they were told to go, no one was there, so they went back up to the bridge and stopped near the back of Defendants’ trucks. Mr. Wiley pulled his truck in front of their trucks and got out; Mr. Dulworth followed. Mr. Wiley and Mr. Dulworth then walked over to the Defendants and their friends. Mr. Wiley and the others argued back and forth, but according to Mr. Dulworth, Mr. Wiley was not being loud or obnoxious. Mr. Dulworth returned to the cab of the truck to get a cigarette from Ms. Denny. When Mr. Dulworth walked back to the others, Mr. Wiley was walking toward his truck saying, ‘We’re leaving.” As Mr. Dulworth started climbing back in the truck, he heard one of the guys tell Mr. Wiley to “suck my dick.” Mr. Wiley then climbed back out of the truck and followed the guys down the hill. As Mr. Wiley was walking down the hill, Mr. Dulworth heard him say “I have permission to whip your ass” in response to the comment.
Ms. Denny testified that the conversation got louder when she and Mr. Dul-worth went to the truck to get a cigarette. As she was climbing back in the truck, Mr. Dulworth told her to call her cousin Casey. According to Ms. Denny, Mr. Dulworth said this because “there was five of them — and Daniel and Willis.” Mr. Dulworth and Ms. Denny testified that they did not hear anyone ask Mr. Wiley to leave them alone or that they be allowed to leave.
According to Mr. Dulworth, Mr. Wiley had no gun, knife, pipe, or object of any kind with him. He saw Mr. Wiley and Mr. Warren, the guy who made the “suck” comment, fighting down by the water. Mr. Dulworth saw Mr. Wiley push Mr. Warren, but he does not know who made the initial contact. According to Mr. Dulworth, Defendant Runyon ran toward Mr. Wiley, picked up what appeared to be a log, and hit Mr. Wiley “across the back, or head.” Mr. Dul-worth then tackled Defendant Runyon; they fell into the fire and rolled off of it. Mr. Dulworth testified he stayed on top of Defendant Runyon, fighting him, to keep him on the ground. He does not remember if he hit Defendant Runyon. He also testified that he had no knife or weapon in his hand and that he never reached for anything while he fought with Defendant Runyon.
|4While on top of Defendant Runyon, Mr. Dulworth felt something repeatedly hitting him in the back and began to feel weak. He got off Defendant Runyon. While he was lying on the ground, Mr. Meredith, who had his hand out, came up and told him to stay on the ground or he would get cut. Mr. Dulworth testified that he saw something in Mr. Meredith’s hand, although he said it could have been his finger. Later, he testified that he did not know if Mr. Meredith had anything in his hand. In his statement to police, Mr. Dulworth said he saw a knife in Mr. Meredith’s hand.
Mr. Dulworth testified he then saw Mr. Warren running out of the water from near Mr. Wiley. Defendants Runyon and McDonald and their friends ran to their trucks and left. As they were leaving, Mr. Dulworth heard Mr. Wiley hit the water. He made his way over to him but could not do anything for him because he himself was “passing in and out.” Mr. Dulworth testified he told Ms. Denny to call for help.
Mr. Dulworth does not know who stabbed him or Mr. Wiley. At trial, he confirmed that, in his statements to police, he suggested that the guy he was wrestling, Defendant Runyon, was not the one who stabbed Mr. Wiley because he had tackled him. A knife found on the scene was shown to Mr. Dulworth at trial, but he did not recognize it. The knife was sent to a laboratory for testing; it was not analyzed before trial due to the facility’s backlog.
Mr. Dulworth knew his step-brother for about four years before his death. He testified that he did not know him to be quick to react or to fight when drunk. According to Mr. Dulworth, Mr. Wiley was funny and laughing when drunk. Ms. Denny, who grew up with Mr. Wiley, described him as sweet, lovable, like a “big teddy bear.” She, too, had never known him to get in fights or cause trouble, and she testified that his behavior did not change when he drank. Other witnesses also testified that Mr. Wiley was a gentle giant and not a fighter or a bully. However, none of these witnesses testified that they had been around him when he was intoxicated.
Dr. Karen Ross, an assistant coroner and forensic pathologist with the Jefferson Parish Coroner’s Office, performed an autopsy on Mr. Wiley. According to Dr. Ross, Mr. Wiley was 6'1" and weighed 312 pounds. The cause of his death was blood loss which resulted from seven sharp force injuries inflicted on him. He had one wound on the back of his left upper arm, which was three and one-quarter inches long and five inches deep. Another wound on the back of his arm was three-quarter by one-half inch long and one and three-quarter inches deep. A cut on his back was two and three-quarter inches long and one and three-quarter inches deep. A stab wound on his face and chin was one inch long; it went through his lip, the periosteum (the soft tissue lining the jaw), the floor of the mouth, then entered his “upper chest, 1 slower neck region.” Dr. Ross testified that significant force was required to penetrate through the periosteum of the jaw. Mr. Wiley had a wound on his right upper neck, which was five inches deep that went through the muscles of the right side of his neck and transected some of the smaller branches of the subclavian artery and the left subclavian artery and vein. According to Dr. Ross, this wound also took a lot of force to inflict.
Mr. Wiley also had a cut on his head, which Dr. Ross testified differs from a stab wound in that it is longer than it is deep. When asked whether she could determine what caused this cut, Dr. Ross testified it was “a single edged instrument such as a knife.” However, she acknowledged during questioning by the State that it was “possible” that this wound could have been caused by the “sharp edge” of a log.
Dr. Clinton McGehee, the surgeon who cared for Mr. Dulworth, testified Mr. Dulworth had four stab wounds to his back, three to the left of his midline and one to the right. The three wounds on his left side were on his upper torso, in the area just above his belt, and close to the spine. The wound on the right side was four inches or more on the right side of the spine.
As a result of his injuries, Mr. Dul-worth’s left lung collapsed and blood collected in the left side of his chest. He also had a penetrating injury to his spleen which was one of the deepest wounds Dr. McGehee has ever seen. Because the skin on the back is fairly thick and Mr. Dulworth is a big, muscular guy, Dr. McGehee felt this particular wound required a great deal of force to inflict. The other wounds on the left side of his back were smaller and not large enough for Dr. McGehee to determine the depth. Although Dr. McGehee acknowledged it was possible that one stab wound caused both of these smaller injuries, he felt they were more likely caused by different wounds. He testified there was no way to make a definitive determination. The wound on the right side of Mr. Dulworth’s back did not result in any intra thoracic injuries or intra abdominal injuries; therefore, Dr. McGehee felt that wound did not penetrate all the way into the chest cavity. Both the injury that caused the collapsed lung and the one that pierced Mr. Dulworth’s spleen were potentially fatal.
Dr. McGehee was asked hypothetically if Mr. Dulworth had someone pinned face down on the ground and that person had a knife in their right hand, whether the person could reach around and inflict the wound on Mr. Dulworth’s right side. Dr. McGehee did not think the person could inflict the wounds on either side because Mr. Dulworth is a “big guy,” and he did not think the person’s arm could go that far back. In a demonstration with counsel, Dr. McGehee indicated that it might be possible if the person was “really cooperative.”

Runyon, 916 So.2d at 412-16.

Sentence

Did the Trial Court violate this Court’s Order?

Defendant urges that the trial court imposed the same sentence on him in violation of this court’s order. He claims that the trial court rejected this court’s holding that co-defendant McDonald was the instigator in the fight, rendering this court’s opinion “moot.” In support of this claim, he refers to this court’s opinion where we stated:

Defendant Runyon did initiate the violence into this situation; however, he played a limited role in Mr. Wiley’s death. He inflicted the wound on Mr. Wiley’s head, but Defendant McDonald, unbeknownst to Defendant Runyon, subsequently inflicted six stab wounds. All seven wounds contributed to Mr. Wiley’s death, but the nature and severity of the wounds inflicted by Defendant McDonald would have contributed more to Mr. Wiley’s demise than the single wound inflicted by Defendant Runyon. Defendant Runyon’s involvement pales in comparison to that of Defendant McDonald. For these reasons, we find Defendant Runyon is not one of our worst offenders, and the sentence imposed on him is excessive. Accordingly, we vacate his sentence and remand the case for re-sentencing.

Id. at 424. Contrary to Defendant’s contention, this passage reveals that he initiated the violence, but then played a limited role in the death of Mr. Wiley.

|7Pefendant claims that the trial court erred in resentencing him to the same term because this court previously held his forty-year sentence was excessive. He acknowledges that the trial court reduced his manslaughter sentence by ten years but claims that the imposition of consecutive sentences violates this court’s order because it is “a fiction without any substantial difference and amounts to a rhetorical change in the result of the trial court without any substance or affect [sic].”

In Defendant’s first appeal, his forty-year sentence for manslaughter was found to be excessive and resentencing for that conviction was ordered. Defendant was subsequently resentenced to thirty years at hard labor for manslaughter which sentence was to run consecutively to the ten-year sentence imposed for the conviction of aggravated battery. While the “net effect” of the sentences on the two charges is forty years, the trial court did reduce the manslaughter sentence by ten years, which complies with this court’s order.

Further, there was no violation of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), which prohibits a harsher sentence being imposed after a defendant successfully has his original conviction reversed on appeal. In State v. Freeman, 577 So.2d 216 (La. App. 1 Cir.), writ denied, 580 So.2d 668 (La.1991), the defendant was originally sentenced as a habitual offender to concurrent sentences of twenty-four years at hard labor for simple burglary and twenty years at hard labor for theft. His habitual offender adjudication was later vacated, and he was subsequently resentenced to consecutive sentences of twelve years at hard labor for simple burglary and ten years at hard labor for theft. The first circuit found no Pearce violation, stating:

Initially, we note that there is no Pearce violation because the defendant did not receive increased sentences upon resentencing. Although the trial court ordered the instant sentences to run consecutively, rather than concurrently (as it had done at the original | ssentencing hearing), there is no indication that the trial court was being vindictive. Instead, by imposing sentences totaling twenty-two years at hard labor, the trial court was obviously trying to come as close to its original sentencing scheme (a total of twenty-four years at hard labor) as possible. (FN)

Id. at 218-19.

We find no merit in Defendant’s argument that the trial court violated this court’s order.

Excessive Sentence

Defendant urges that he was guilty of two counts of aggravated battery at worst and that the trial court’s imposition of a sentence which equals the maximum sentence of forty years for manslaughter is excessive. He further claims:

The failure to abide by the terms of the Court of Appeal ruling in this case is reversible error, particularly where the defendant shows remorse and rehabilitation and where the Trial Court reiterated his original sentencing considerations despite the Court of Appeal holding that those did not justify a 40 year term of imprisonment.

Defendant is obviously challenging the length of his sentences, as well as their consecutive nature. See State v. Dixon; 04-1019 (La.App. 5 Cir. 3/15/05), 900 So.2d 929.

Louisiana Code of Criminal Procedure Article 881.1(E) provides:

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

|aThe record does not contain a written motion to reconsider sentence and does not indicate that Defendant orally objected to his sentence at the sentencing hearing. However, the record does reflect that after being sentenced Defendant stated, “Note my appeal ... I will file an appeal on this.” This statement is insufficient to constitute an oral motion to reconsider sentence. See State v. Green, 94-617 (La.App. 3 Cir. 12/7/94), 647 So.2d 536, and State v. Sabathe, 93-860 (La.App. 5 Cir. 2/23/94), 633 So.2d 761. Accordingly, Defendant is precluded from raising any objection to his sentences on appeal. La.Code Crim.P. art. 881.1(E). However, this court has reviewed sentences for bare excessiveness in the interest of justice when no motion to reconsider was filed. See State v. Jeansonne, 06-263 (La.App. 3 Cir. 5/31/06), 931 So.2d 1258, 1262-63, where this court set forth the standard to be employed in determining whether a sentence is excessive:

[Louisiana Constitution Article I], § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
State v. Barling, 00-1241, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.
| min order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, we have held:
[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-0562 (La.5/30/03), 845 So.2d 1061.

At the resentencing proceeding, the trial court stated the following reasons in support of the sentences it imposed:

All right. As indicated at the previous sentencing, there are several factors involving Mr. Runyon. Mr. Runyon was the one that initiated the matter. He struck Mr. Wiley, the victim, with some sort of weapon. He also was involved in attacking the young Dulworth boy from behind. None of the victims had any weapons or any deadly weapons. There are several egregious factors which I had recited at the previous sentencing which I will incorporate in this on both matters.

Defendant then read a letter to the court informing the court of his progress during confinement and stated that he never wanted any of this to happen to his family or any of the families involved. Thereafter, the trial court stated:

All right. That’s very commendable. I think the statements and concerns you related probably didn’t dwell enough or reflect on what happened to the Wiley family and what happened to the victim in this matter.
I^And I think more regrets and remorse should be shown; they’re the ones that suffered.
And Í know your family also has some problems. I’m sure the Wileys would swap places with you right now. Let him be sitting there and you be where he is in a heartbeat. But what you related to the Court during your statement is commendable. And you’re headed in the right direction.

The trial court also incorporated the reasons provided at the original sentencing as reasons for the sentences imposed at resentencing. At the original sentencing, the trial court stated:

Mr. Runyon, there’s several factors involved. We are directing our attention now to the Manslaughter charge. There were several aggravating, very egregious circumstances here. Number one, in regard to you, you’re the one that initiated the violence. You struck the victim with some sort of weapon, purportedly a log. That was the first stage in Daniel Wiley’s eventual death, and the demise of that young man. You showed no remorse. You, also, attacked the young Dulworth boy from behind, or at least—
THE COURT:
And the wounds found and testified to by the expert witnesses who did the autopsy were consistent with your story. And this was a young man barely of the age of majority. A young, naive boy who was attempting to protect his brother. And you viciously attacked him. Of course, he was just trying to remove you when you struck the victim, Daniel Wiley, with a device that we’ve already mentioned. He had no weapon, as it turned out. He had nothing. There were no deadly weapons involved. You initiated the deadly weapons into this particular scenario. And you did it on both victims. And these are several of the factors that are involved in your sentence.

Manslaughter

On the manslaughter conviction, Defendant faced a sentence of no more than forty years at hard labor. La.R.S. 14:31. A thirty-three-year sentence for manslaughter has been held not to be excessive for a first-offender defendant who was a principal |12to a drive-by shooting. State v. Bowman, 95-667 (La.App. 4 Cir. 7/10/96), 677 So.2d 1094, writ denied, 96-2070 (La.1/31/97), 687 So.2d 400.

We find no abuse of discretion by the trial court in its imposition of a thirty-year sentence, ten years less than the maximum, for manslaughter in this case.

Aggravated Batterg

The trial court imposed the maximum sentence of ten years at hard labor for Defendant’s aggravated battery conviction. Defendant could have also been ordered to pay a fine of not more than $5,000 in addition to his prison sentence. La.R.S. 14:34. As noted in the original appeal of this case:

In State v. Burnaman, 03-1647, p. 5 (La.App. 3 Cir. 5/12/04), 872 So.2d 637, 641, this court considered the appropriateness of the imposition of maximum sentences, explaining:
[M]aximum sentences are usually reserved for the most egregious and blameworthy of offenders. State v. LeBlanc, 578 So.2d 1036 (La.App. 3 Cir.1991), writ denied, 620 So.2d 833 (La.1993). In reviewing the imposition of a maximum sentence, the First Circuit has held:
This Court has stated that maximum sentences permitted under statute may be imposed only for the most serious offenses and the worst offenders, State v. Easley, 432 So.2d 910, 914 (La.App. 1 Cir.1983), or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. See State v. Chaney, 537 So.2d 313, 318 (La.App. 1 Cir.1988), writ denied, 541 So.2d 870 (La.1989). A trial court’s reasons for imposing sentence, as required by La. Code Crim. P. art. 894.1, are an important aid to this court when reviewing a sentence alleged to be excessive. State v. McKnigkt, 98-1790 at p. 25, 739 So.2d [343] at 359 [(La.App. 1 Cir.1999) ].

State v. Runyon, 916 So.2d at 423-24.

|13We find no abuse of discretion by the trial court in its imposition of the maximum sentence for aggravated battery in light of the fact that Defendant instigated the attack on an unarmed victim and Defendant has shown limited remorse.

Consecutive Sentences

Defendant next contests the trial court’s imposition of consecutive sentences. Challenges to the imposition of consecutive sentences have been considered by this court in reviews for bare excessiveness. State v. Day, 05-287 (La.App. 3 Cir. 11/2/05), 915 So.2d 950. In State v. Vollm, 04-837 (La.App. 3 Cir. 11/10/04), 887 So.2d 664, this court stated that the defendant’s failure to present the issue of the consecutive nature of his sentences in his motion to reconsider relegated him to a bare claim of constitutional excessiveness on appeal. However, we went on to review the imposition of consecutive sentences, finding the trial court did not abuse its discretion in imposing them.

In Vollm, additional factors to be considered when assessing whether the trial court abused its discretion in imposing consecutive sentences were identified:

Louisiana Code of Criminal Procedure Article 883 states in relevant part: “If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively.” (Emphasis added.) The Louisiana Supreme Court has recognized that although concurrent sentencing is favored, it is within the trial judge’s discretion to impose sentences consecutively based on factors including the defendant’s criminal record, the severity or violent nature of the crimes, or the danger the defendant poses to the public. State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49.
Where the trial court does impose consecutive penalties, it “must articulate particular justification for such a sentence beyond a mere articulation of the standard sentencing guidelines set forth in La.C.Cr.P. art. 894.1” State v. Merritt, 03-946, p. 28 (La.App. 3 Cir. 3/17/04), 875 So.2d 80, 97 (quoting State v. Dempsey, 02-1867, p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, 1040, writ denied, 03-1917(La.6/25/04), 876 So.2d 823).

Id. at 669.

The two offenses in this case arose out of the same course of conduct; therefore, concurrent sentences are favored. However, the trial court had the discretion to impose consecutive sentences. Defendant initiated a violent attack of four armed men against two unarmed men in which the first victim, Mr. Wiley, was killed, and he exhibited little or no remorse to the trial court for his actions. We find no error with the trial court’s imposition of consecutive sentences.

Errors Patent

All appeals are reviewed for errors patent on the face of the record. No errors patent were found on review.

Disposition

The sentences imposed by the trial court are affirmed.

AFFIRMED.

      . We observe that Defendant may erroneously be referring to that portion of our opinion where co-defendant McDonald’s claim that he acted in self-defense in stabbing Mr. Wiley and Mr. Dulworth was addressed:
      Furthermore, a rational trier of fact could have also determined that Defendant McDonald was the aggressor in stabbing Mr. Dulworth and that Mr. Wiley was legitimately intervening in this attack on his step-brother. An aggressor who provokes the situation which ultimately places him in danger is precluded from claiming the right to self-defense, unless he withdraws from the situation in a manner that evidences his intent to terminate the conflict. La.R.S. 14:21. There is no evidence that Defendant McDonald withdrew from his confrontation with Mr. Wiley until he had inflicted all of his fatal wounds. There was evidence, however, that Defendant McDonald could not have reasonably believed his life was in imminent danger, when he stabbed Mr. Dulworth and Mr. Wiley.

        State v. Runyon, 916 So.2d at 426.

      As the United States Supreme Court has recognized, the Pearce presumption is restricted to circumstances "in which there is a 'reasonable likelihood' ... that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 2205, 104 L.Ed.2d 865 (1989) (citations omitted). Where the court "merely impose[s] the same sentence for the same conduct,” the sentence has not been increased and the Pearce presumption is inapplicable. United States v. Cataldo, 832 F.2d 869, 875 (5th Cir.1987), cert. denied, 485 U.S. 1022, 108 S.Ct. 1577, 99 L.Ed.2d 892 (1988).

      . Defendant acknowledged that Mr. Dulworth had put up his knife before Mr. Dulworth had pinned him on the ground.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    LA PAC MANUFACTURING, INC., et al. v. TCM MANUFACTURING, INC., et al.
    No. 06-0748.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      Alan K. Breaud, Timothy W. Basden, Breaud & Meyers, A P.L.C., Lafayette, LA, for Plaintiffs/Appellants, La Pac Manufacturing, Inc., Louisiana Bag Company, Peter Michael John, David Mitchell John.
    Edwin G. Preis, Jr., James A. Lo-chridge, Jr., Danielle M. Smith, Benjamin J. Durrett, Preis & Roy, Lafayette, LA, for Defendant/Appellee, CLECO Corporation.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   PETERS, J.

b The plaintiffs in this litigation, La Pac Manufacturing, Inc. (La Pac), Louisiana Bag Company (La Bag), Peter Michael John, and David Mitchell John, brought this action against a number of defendants to recover damages they sustained when a manufacturing plant and warehouse they owned and/or occupied sustained extensive fire damage. They appeal the trial court grant of a summary judgment in favor of one of the defendants, CLECO Corporation (CLECO), dismissing it from the litigation. For the following reasons, we affirm the trial court grant of the summary judgment.

DISCUSSION OF THE RECORD

The property at issue in this litigation was a 133,000-square-foot facility located in Crowley, Louisiana, and owned by Peter Michael John and David Mitchell John. It served as the offices, plant facilities and warehouse space for both La Pac and La Bag. La Pac is a textile manufacturer, and La Bag is a wholesale distributor of packaging products. The facility housed the supplies and equipment used in the manufacturing process, including over 50 looms; polypropylene; cloth; burlap; cardboard boxes; and tanks of fuel, propane, alcohol, and ink.

On Easter Sunday night in 2003, a fire completely destroyed the facility. The plaintiffs assert in their pleadings that an electrical short in a forklift ignited a propane tank and that the fire quickly spread throughout the facility, resulting in the total loss of the building and its contents. The plaintiffs instituted suit against the manufacturer and the distributor of the forklift, as well as against CLECO. The asserted liability of the manufacturer and the distributor was negligence, strict liability, and products liability.

LAs to CLECO’s liability, the plaintiffs asserted that this electrical provider did not timely disconnect the power to the plant after having been requested to do so by the Crowley Fire Department. The assertion of liability against CLECO relates to the fact that the plant housed eighteen large exhaust fans mounted on the west and south exterior walls, which routinely ran day and night. These fans apparently continued to run until CLECO employees externally disconnected the electrical power feeding the plant. The plaintiffs argue that the continued operation of these exhaust fans fed the fire, resulting in more extensive damage than would have otherwise occurred had CLE-CO timely disconnected the power. CLE-CO responded to the plaintiffs’ pleadings by filing, among other pleadings, a motion for partial summary judgment. The hearing on the motion established that most of the facts surrounding the incident are not seriously disputed.

The record establishes that, because of the Easter holiday weekend, a skeleton crew of eleven or twelve individuals were working at the time of the fire. Sometime that evening, one of the employees noticed smoke in the building, and, a few minutes after 9:00 p.m., a small localized fire was discovered near the loading docks. At 9:22 p.m., and after an unsuccessful attempt by one of the employees to extinguish the fire with a fire extinguisher, the Crowley Fire Department received a call for assistance.

Chief Russell Meche of the Crowley Fire Department initially instructed his dispatcher to call SLEMCO, another electric utility company with lines in the area. According to Chief Meche, when there is a fire, it is standard policy to call the utility companies to have them disconnect the electrical power at the fire scene. When Chief l.qMeche called his dispatcher again, he was told that SLEMCO had determined that it did not provide electrical service to the building. Chief Meche then told the dispatcher to call CLECO and advise whomever he spoke with that he needed the appropriate crew to hurry to the scene.

The dispatcher’s telephone call came to CLECO’s Distribution Operation Center (Center) in Pineville, Louisiana, at 9:31 p.m. Glenn Johnson, CLECO’s “on call” line mechanic responsible for the Crowley area, received a telephone call from the Center almost immediately thereafter and left his Eunice, Louisiana home to drive the twenty-five or thirty minutes to Crowley within minutes of receipt of the call. In route, he called Wallace Hebert, another CLECO line mechanic, who was not on duty, but who lived in Crowley. He informed Hebert of the fire and instructed him to take a bucket truck and disconnect the transformers on the north side of the plant. When Johnson got to the transformers on the southeast side, he stopped and disengaged the current from that service source with a long pole designed for that purpose.

At about the same time that Johnson was disconnecting the service on the southeast side, Hebert was doing the same thing on the north side with the bucket truck. Hebert, whose residence is approximately one mile from the plant, had already gone to bed when he received a call from Johnson. He dressed and drove to the local CLECO facility and acquired the bucket truck. While at the CLECO facility, he received a telephone call from Johnson, who told him that he was already in Crowley at the southeast service source. Hebert then took the bucket truck through the traffic to the north side of the plant and disconnected the transformers at that location. After Rhe disconnected the transformers, he saw that a pole from a SLEM-CO line was smoking, and, afraid it might fall, he disconnected the power along the section serviced by that pole. Next, the Louisiana State Police requested that he disconnect the service for a distance around the burning plant. He complied with that request by opening the breakers at two substations in the area. By the time he had completed this task, it was around 11:30 p.m.

The summary judgment evidence also included a report of the Bureau of Alcohol, Tobacco, and Firearms, which indicated that, by the time the first Crowley firemen arrived, the fire was too intense to consider an inside assault on the fire. Nevertheless, plant officials were able to go inside the plant and turn off the extruding machines and to move company trucks away from the building. In fact, as late as 10:00 p.m., plant employees entered into the offices and saved the computers and files. It was sometime thereafter that the electrical power to the building was terminated by Johnson and Hebert.

The affidavit of Roger Tate, an expert mechanical and fire protection engineer, established that, in one minute, each fan in the plant could extract a volume of air equivalent to that found in a seventy-foot by 100-foot building with a twenty-foot ceiling. He further asserted in his affidavit that, “[sjince all of the exhaust fans were located in the West half of the building, the operation of the exhaust fans dramatically affected the growth of the fire and caused the fire to spread rapidly into the western portion of the building from the warehouse area [the eastern portion of the building] where the fire originated.”

|sThe affidavit of Frederick M. Brooks, an electrical engineer and fire and explosive investigator, contradicted Tate’s affidavit in that he suggested that the continued operation of the ventilation fans might have proven beneficial during the course of the fire by drawing away products of combustion from the fire source, thereby allowing more time for personnel evacuation, more visibility for fire responders, and a reduction of the hazard of smoke inhalation. He opined that CLECO’s response was appropriate and consistent with industry practice.

At the hearing on the motion for summary judgment, the trial court concluded that there were no issues of material fact and that CLECO had a legal duty to disconnect the electricity if and when it became aware that the electricity was presenting a danger to the building. Therefore, under the facts of this case, the trial court concluded that CLECO’s response was appropriate. Thus, the trial court granted CLECO’s motion for summary judgment. Thereafter, the plaintiffs perfected this appeal.

On appeal, the plaintiffs assert that the trial court erred in granting the summary judgment. Specifically, the plaintiffs argue that CLECO’s duty to respond in a reasonable manner to the request to disengage electrical power at the plant “ex-tendfed] to all risks posed by electrical current, including the fire-enhancing effects of the ventilation system at the facility.”

OPINION

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). A court must grant a motion for summary judgment “if the pleadings, | ^depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). The summary judgment procedure is favored under our law. La.Code Civ.P. art. 966(A)(2). Additionally, La.Code Civ.P. art. 966(C)(2) provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

In this case, CLECO does not have the burden of proof at trial.

In reviewing the trial court’s judgment, we first note that this is a negligence case and that a duty-risk analysis is the appropriate review approach. See Lajaunie v. Cent. La. Elec. Co., 552 So.2d 746 (La.App. 1 Cir.1989), writ denied, 558 So.2d 1130 (La.1990).

The duty-risk analysis is the standard negligence analysis employed in determining whether to impose liability under LSA-C.C. art. 2315. This approach provides an analytical framework for evaluation of liability. One analysis requires proof by the plaintiff of five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damages element). A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability.

Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 7 (La.3/10/06), 923 So.2d 627, 632-33 (citations omitted).

|7In Lemann, the supreme court explained the duty element as follows:

A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is a question of law. In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty.
Id. at 633 (citations omitted).

The jurisprudence has established two levels of duty owed by power companies in the distribution of their product. Pillow v. Entergy Corp., 36,384 (La. App. 2 Cir. 9/18/02), 828 So.2d 83, writ denied, 02-2575 (La.12/13/02), 831 So.2d 987. When the risk involves electrocution, the duty is that of utmost care. Id. In other cases which involve accidents that occur on the property of the customer and are allegedly caused by some action or inaction on the part of the electric utility company, the utility company’s duty is that of reasonable care in the installation, operation and maintenance of its electric lines. Id. An electric company is not the insurer of the property of its customers and is not legally obligated to safeguard against occurrences that it cannot reasonably expect or contemplate. Id.

In Hughes v. Louisiana Power & Light Co., 94 So.2d 532, 537 (La.App. 1 Cir.1956), the first circuit stated that, in the absence of the power company’s actual or constructive knowledge of defects in a private wiring system or appliances, the power company’s duty terminates at its meter. That is to say, a power-generating company is not liable for damages arising from its failure to shut off electrical current passing to a customer’s defective wires or equipment when it did not know, or reasonably should not have known, of any defect. When the power-generating company knows, or should know, of such a defect and continues to supply power, its liability is based not on the defective condition laitself, but more particularly on its energizing of the line with knowledge of the conditions. Id.; see also Giordano v. Rheem Mfg. Co., 93-1614 (La.App. 3 Cir. 10/5/94), 643 So.2d 492.

The plaintiffs’ basic argument is that CLECO had a duty to disengage the electricity of the plant when requested to do so by the Crowley Fire Department and that it failed to do so in a reasonable manner. They then expand this duty to state that it extends to all risks presented by electricity in the building and that the fan-enhanced fire damage was caused by CLECO’s delay in disconnecting the electricity. Specifically, they suggest that placing its ability to respond in the hands of an on-call line mechanic twenty to thirty minutes away from the scene did not constitute a reasonable response and that an immediate response was obligatory because the fans continued to run and augmented the flames. Thus, they argue that the reasonableness of CLECO’s response is a factual issue which remains unresolved, making summary judgment inappropriate in this case. However, as suggested by the supreme court in Lemann, the threshold issue is whether, in light of the unique facts and circumstances presented, CLECO owed the plaintiffs a duty to cut off the fans. It is at this level of the duty-risk inquiry that the plaintiffs’ case against CLECO meets its demise.

Although the plaintiffs’ arguments have a certain logic in that disengaging the electricity sooner would have had the effect of stopping the fans sooner, the inquiry is not that simple. If a utility company, after receiving a request to disconnect its service to property served by its lines because of an ongoing fire, should be charged with a duty to prevent property damage caused by electricity-promoted augmentation of the fire, it could comply with its duty expeditiously in only one way — it would have to kill power to that service by the quickest means possible even if it meant a network disconnect involving thousands of users far removed from the fire itself. The social and economic implications 19of such a dire reaction are easily foreseeable, for it could well cause more damage than it sought to prevent. Additionally, the plaintiffs have directed us to no statute, regulation, or jurisprudence that places a duty on a utility company to disconnect electricity in a burning building in order to disconnect ventilation fans to prevent the movement of air and the consequent augmentation of the fire. Such a duty in the circumstances of this case would be unreasonable.

In this case, the evidence fails to establish that CLECO knew or should have known of the existence of the fans, much less the fact that the location was such that the fans might spread it. There is no evidence that, when the dispatcher for the Crowley Fire Department contacted CLE-CO, he made any mention of the existence of the ventilating fans or that anyone had attempted to cut them off prior to that time. In fact, the electrical service entrance where the ventilator fans could have been turned off manually was located on the west wall near the office area where the employees had entered as late as 10:00 p.m. to retrieve the computers and company records. Despite being in close proximity to the manual cutoff switches, the employees made no effort to stop the fan operations.

Given the undisputed facts, there were no defects in CLECO’s own equipment or lines, and, therefore, CLECO had no duty to prevent or retard a fire beyond its meter where it neither knew nor reasonably should have know of any electrical defect existing on the plaintiffs’ side of the meter. We agree with the trial court’s conclusion that, under the circumstances of this case, CLECO had no duty to disconnect the electricity solely to offset the risk of the fire’s augmentation caused by the continued operation of the ventilation fans.

INDISPOSITION

For the reasons set forth herein, we affirm the trial court’s grant of the summary judgment dismissing CLECO Corporation as a party defendant in this litigation. We assess all costs of this appeal to the plaintiffs, La Pac Manufacturing, Inc., Louisiana Bag Company, Peter Michael John, and David Mitchell John.

AFFIRMED.

      . Any issues relating to the liability of these parties are not before the court in this appeal.

      . Two of the fans were forty-eight inches in diameter, and sixteen were thirty-six inches in diameter.

      .Normally, sixty to seventy individuals would have been working the night shift.

      . According to Johnson, the plant was serviced by two locations, one on the north side of the plant and the other on the southeast side. Disconnecting the north side transformers required a bucket truck, while the southeast transformers could be disconnected without use of a bucket truck.

      . The CLECO facility is located two blocks from the fire location.

      . Hebert’s time records reflect that he worked from 10:00 p.m. on the evening of the fire until 5:00 a.m. the next morning.

      . The record does not establish the exact time the electricity was disconnected at either the north or the southeast locations.

      . The plaintiffs have argued that, if we find CLECO did not have a duty to turn off the electricity to turn off the fans, we should find that it assumed such a duty when it instructed the Crowley Fire Department not to turn off the electricity during a fire but to await CLE-CO's arrival. Factually, that is not what the summary judgment evidence showed. Fire Chief Meche testified that CLECO requested they not "pull the glass,” which we understand means turning off the electricity at the meter, because that could be hazardous to the firemen pulling the glass. The firemen, however, were free to disconnect service by levers or circuit breakers, as were the owners of the property. We do not find it necessary to address the assumption of duty argument beyond saying that, if this defendant did not have a duty to the owners of the property in this case to turn off the electricity to turn off the fans, it did not assume such a duty when it merely requested that firemen for their personal safety not disengage the meter.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Justin D. SAVOIE.
    No. KA 06-1005.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.
    James Edward Beal, Louisiana Appellate Project, Jonesboro, Louisiana, for Defendant/Appellant, Justin D. Savoie.
    Mr. Justin D. Savoie, Lafayette Parish Correctional Center, Lafayette, Louisiana, Michael Harson, District Attorney, ADA J.N. Prather, Jr., Lafayette, Louisiana, for Plaintif£Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

It On February 25, 2002, the State of Louisiana (State) filed a bill of information charging the Defendant, Justin D. Savoie, with simple battery, attempted carjacking, and two counts of threatening a public official. On August 24, 2005, the Defendant appeared in court and, pursuant to a plea agreement, entered a plea of no contest to attempted carjacking. The remaining counts were dismissed pursuant to the plea agreement.

In compliance with the plea agreement, the trial court sentenced the Defendant to one year at hard labor, concurrent with any other sentences the Defendant may be serving. The Defendant filed a motion for appeal, and appellate counsel has filed a motion to withdraw, along with an explanatory brief, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990). By letter dated September 12, 2006, this court notified the Defendant of counsel’s request to withdraw and advised the Defendant that he had until October 5, 2006 to file a brief. This court has not received an appellate brief from Defendant.

FACTS

At the Defendant’s guilty plea hearing, the State recited the facts as follows:

BY MR. PRATHER: All right, Judge. The State[,] should this matter have gone to trial before a jury[,] would have proved the following: that on or about the 30th day of June, 2001, that [Defendant] did wilfully and unlawfully [and] intentionally attempt to take a motor vehicle belonging to a defendant [sic] by the name of Chance Dugas in the presence of Chance Dugas by use of force or intimidation particularly in this case being the [sic] knife in violation of the provisions of [La.R.S.] 14:67.2 and being an attempt it would be under [La. R.S. 14:]27. And this occurred here in Lafayette Parish at the Jet 24 station. That’s what the State would have proven.

J^DISCUSSION

Anders Motion

Appellate counsel has filed a brief stating that he could find no errors on appeal that would support reversal of the conviction or sentence. In Benjamin, the fourth circuit set forth the appropriate analysis for such a brief pursuant to An-ders:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal.

Benjamin at 531.

Pursuant to Benjamin, we have reviewed the record, including the transcripts, pleadings, and minute entries. The Defendant and his counsel were present at all critical legal proceedings. The Defendant’s guilty plea waived all pre-plea, non-jurisdictional defects and, as noted by counsel, the Defendant did not reserve the right to seek review of the trial court’s denial of his motion to suppress and motion to quash. See State v. Crosby, 338 So.2d 584 (La.1976). Accordingly, these rulings cannot now be challenged by the Defendant. Further, the Defendant bene-fitted from the plea, as the State dismissed three other counts against him and recommended that he be sentenced to one year at hard labor to run concurrently with any other sentence he was serving. The trial court followed the sentencing recommendation.

Thus, we find no issues that would support an appeal. Therefore, counsel is 13allowed to withdraw.

DECREE

Defendant’s conviction and sentence are affirmed, and counsel is allowed to withdraw.

CONVICTION AND SENTENCE AFFIRMED.

MOTION TO WITHDRAW GRANTED.

ORDER

After consideration of defense counsel’s request to withdraw as counsel, and the appeal presently pending in the above-captioned matter,

IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is granted.


author: GREMILLION, Judge.

text:
    Terrance BATISTE v. Jose R. GUTIERREZ, et al.
    No. 2006-911.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      David C. LaBorde, Bradley G. Frizzell, The LaBorde Law Firm, Lafayette, LA, for Plaintiff/Appellant, Terrance Batiste.
    John F. Wilkes, III, Lisa E. Mayer, Joy C. Rabalais, Libby Heinen, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendants/Appellees, Town of Vinton, Arthur Phillips.
    Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   GREMILLION, Judge.

LThe plaintiff, Terrence Batiste, appeals the trial court’s grant of summary judgment in favor of the defendants, the Town of Vinton and Officer Arthur Phillips. This left Officer Phillips and Vinton as defendants. The trial court held that no genuine issue of material fact exists with regard to whether Officer Phillips breached his duty by failing to arrest or detain the driver of a vehicle who later caused injuries to Batiste as a result of being intoxicated. We affirm.

FACTS

On January 22, 2004, Batiste was changing the tire on his employer’s truck, which was parked on the east shoulder of Interstate 10 in West Baton Rouge Parish. The truck, with its attached trailer, was located near mile marker 150 on I — 10. At approximately 7:30 a.m., the defendant, Jose R. Gutierrez, who was also traveling east on I — 10, struck the trailer attached to the truck, throwing Batiste and three other persons onto the grassy shoulder of the road. Blood tests taken after the accident determined that Gutierrez’s blood alcohol concentration was 0.19 grams percent. As a result of the accident, he received his third offense DUI.

Batiste filed suit against Gutierrez and Travelers Property Casualty Company of America, the automotive insurer of Batiste’s employer, seeking general and punitive damages as result of this accident. Batiste’s minor daughter was later added as a plaintiff in this suit. In his second supplemental and amending petition, Batiste named Officer Arthur Phillips, the Town of Vinton, and the Town of Vinton Police Department as defendants. He alleged that Officer Phillips breached the duty owed him when he failed to arrest or detain Gutierrez for driving while intoxicated |2and for failing to ensure that Gutierrez possessed the required liability insurance when he stopped him at 4:44 a.m. in Vinton, the morning of the accident.

Louisiana Commerce and Trade Association Self-Insurers’ Fund intervened in the matter seeking to recover workers’ compensation funds paid to Batiste as a result of the accident. Its intervention was later dismissed pursuant to a peremptory exception of prescription. The trial court also dismissed Batiste’s request for punitive damages and his claims against the Vinton Police Department as a result of a consent judgment between Batiste, Vinton, and Officer Phillips.

Vinton and Officer Phillips filed a motion for summary judgment alleging that no genuine issues of material fact existed with regard to whether Officer Phillips breached his duty as a peace officer for failing to arrest/detain Gutierrez for driving intoxicated and for not complying with the Louisiana Motor Vehicle Safety Responsibility Law. La.R.S. 32:861(A)(1). Following a hearing, the trial court granted summary judgment in favor of Vinton and Officer Phillips. This appeal by Batiste followed.

ISSUES

Batiste assigns two errors committed by the trial court in granting summary judgment in favor of Vinton and Officer Phillips. He argues that the trial court erred in finding that he would be unable to satisfy his evidentiary burden of proof at trial and that it erred in granting the motion for summary judgment within ten days of the trial date.

SUMMARY JUDGMENT

The law pertaining to summary judgment was discussed by the Louisiana | ^Supreme Court in its per curiam opinion in Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (alteration in original):

We review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if “there is no genuine issue as to material fact and [ ] the mover is entitled to judgment as a matter of law.” La.Code Civ.Proc. art. 966(C)(1). In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor.

The party urging the motion for summary judgment bears the burden of proof. However, if that party will not bear the burden of proof at trial, he need only point out that the opposing party will be unable to prove his claim. He does this by noting that the opposing party will be unable to factually prove an element essential of his claim. La.Code Civ.P. art. 966(C)(2). Once this occurs, the burden shifts to the opposing party to “produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.” La.Civ.Code art. 966(C)(2). If the opposing party fails in this particular, no genuine issue of material fact exists and summary judgment is appropriate.

In Wellman v. Evans, 03-1720, pp. 5-7 (La.App. 3 Cir. 6/16/04), 876 So.2d 954, 958-59, writ denied, 04-1760 (La.10/15/04), 883 So.2d 1057, we discussed both the duty-risk analysis and the duty owed by police officers to the public:

The liability of a police officer is determined using the duty/risk analysis. Mathieu v. Imperial Toy Corp., 94-952 (La.11/30/94), 646 So.2d 318. For a plaintiff to recover, he must prove the defendant had a duty to conform his conduct to a specific standard of care; he failed to conform his conduct to that standard; that substandard conduct was a cause-in-fact of the injury, the substandard conduct was a Rlegal cause of the injury; and damages. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Id. at 322.
A police officer, in carrying out his authority to enforce laws, has a duty to perform his function with due regard for the safety of all citizens who will be affected by his action. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606. An officer must act reasonably to protect life and limb, to refrain from causing injury or harm, and to exercise respect and concern for the well being of those he is employed to protect. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173. In considering whether an officer breached his duty, the court’s task is not to determine whether the officer should have acted differently or if there were better options available, but only to determine whether his actions were reasonable under the totality of the circumstances. Syrie, 693 So.2d 1173; Mathieu, 646 So.2d 318.

In dealing with traffic, once an “officer becomes aware of a dangerous traffic situation, he has the affirmative duty to ensure that motorists are not subjected to unreasonable risks of harm.” Oubre v. Eslaih, 03-1133, p. 10 (La.2/6/04), 869 So.2d 71, 77.

In support of their motion, Officer Phillips and Vinton introduced his affidavit into evidence. Therein, he stated that he issued Gutierrez a traffic citation for traveling eighty-five miles per hour in a seventy mile per hour speed zone. Prior to doing so, he stated that he noticed nothing about Gutierrez’s driving or actions to put him on notice that he was intoxicated. He stated that Gutierrez did not appear to be under the influence of alcohol when he exited his vehicle, when he spoke, or in his actions. He further stated that he smelled no alcohol on Gutierrez’s breath when sitting in close contact to him in his police unit. Finally, Officer Phillips stated that it not his regular practice to request proof of insurance when citing the driver of a vehicle registered in a state other than Louisiana. In this instance, Gutierrez’s vehicle 1 Rwas registered in Texas.

In opposition, Batiste introduced several depositions into evidence. Officer Phillips testified that after first stopping him, Gutierrez exited his truck, immediately put his hands up, and had to be told twice to come to his police unit. He stated that these actions were not unusual, as Gutierrez was Hispanic and he did not believe that he understood English as well as he spoke it. Officer Phillips stated that he asked for Gutierrez’s license, which was valid, but did not ask him for proof of insurance. He stated that unless he suspects criminal activity or that an accident has occurred, he is not required to ask an out-of-state driver for proof of insurance or vehicle registration, as he cannot enforce out-of-state policies or procedures. He further stated that no Vinton policy required him to approach Gutierrez’s vehicle after he stopped it.

Officer Phillips testified that had he had a reasonable suspicion that Gutierrez was intoxicated, he would have detained him longer in order to perform a more thorough investigation. However, he stated that he had no such suspicion in this instance. He said that he asked Gutierrez why he was driving fast and was told that he was trying to get to his job in North Carolina. He asked Gutierrez if he had ever been arrested and, as best he could recall, said that this was answered in the negative. He further stated that he received no hits on the National Crime Information Computer system with regard to Gutierrez having any prior criminal history. Officer Phillips stated that as Gutierrez had a North Carolina driver’s license and a Texas registered truck, he asked him to sit in his police unit while he checked his information. He said that he also does this so that he can increase his sense of 1 fismell by sitting next to a driver in a closed environment. In this instance, he stated that all he noticed was that Gutierrez had been drinking coffee.

Officer Phillips stated that he was unaware that Gutierrez had two prior DUI offenses at the time he stopped him. However, he stated that had he known this, he would not have asked Gutierrez for his vehicle registration and proof of insurance as he had no reasonable suspicion that he was intoxicated at the time of the stop. He testified that he did not believe Gutierrez was intoxicated as he did not stumble, had no trouble producing his papers, and did not act or drive erratically when he initially stopped him.

Gutierrez testified that he was traveling from his home in New Braunfels, Texas to his job in North Carolina. At the time, he said that he had with him an ice chest and twenty beers. He stated that he drank approximately four beers between 4:00 and 8:00 p.m. on the afternoon of the January 21, 2004. He said that he left his home at about midnight and drove from New Braunfels to Sealy, Texas, where he stopped to buy coffee. He stated that upon reaching Vinton, he stopped and bought more coffee, prior to being stopped by Officer Phillips.

Gutierrez stated that he was not intoxicated at the time of the accident. In addition to the beer, he testified that he took a hydroeodone on the morning of January 21, 2004, for back pain. Gutierrez testified that he has not drunk alcohol on a regular basis since receiving a 1998 DUI in Texas. He received another DUI in 1990 or 1994, also in Texas.

Gutierrez testified that Officer Phillips did not ask him for his vehicle registration papers, insurance papers, or look inside his vehicle. He stated that other 17than being tired, he did not have trouble getting out of his truck or walking at the time he was stopped. With regard to the accident, Gutierrez said that he did not remember if he was speeding before the accident, as he fell asleep, nor could he recall whether he wove in and out of vehicles, passed on the shoulder, or hit the rail of a bridge. He stated that he made no stops between Vinton and Baton Rouge, and did not recall telling the investigating officer that he began drinking at approximately 3:00 or 4:00 a.m. that morning.

Batiste also introduced the deposition of Dr. Francis Ragan, an associate professor of pathology at Louisiana State University Health Sciences Center and a Director of Clinical Pharmacology/Toxicology Laboratory at Charity Hospital Medical Center of Louisiana. He testified that Gutierrez’s serum ethanol concentration after the accident at 8:50 a.m., was 245 milligrams per deciliter, which is equivalent to a blood ethanol concentration of 196 milligrams per deciliter or 0.19 gram percent. He stated that for purposes of a DUI, Gutierrez’ blood alcohol level would be at 0.19. Dr. Ragan testified that there was 1.2 hours between the accident and the ethanol testing and 4.1 hours between the Vin-ton traffic stop and the testing. Thus, he stated that Gutierrez’s blood alcohol level at the time of the Vinton stop would have been between the range of .23 and .31. At the time of the deposition, Dr. Ragan stated that he had been unable to watch the video tape recorded in conjunction with Officer Phillips’ traffic of Gutierrez.

Attached to a letter from Dr. Ragan to Batiste’s counsel was a list of the stages of influence. Dr. Ragan stated that Gutierrez should have exhibited signs of being within the excitement stage- of influence at the time he was stopped in Vinton. |sThis stage occurs when a person’s blood ethanol concentration level is between 0.09 to 0.25. During this stage, a person’s exhibits emotional instability, loss of critical judgment, and impairment of perception, memory, and comprehension. They will also exhibit decreased sensitory response, increased reaction time, reduced visual acuity, peripheral vision and glare recovery, sensory-motor in coordination, impaired balance, and drowsiness. Dr. Ragan testified that a person in this stage will have a tendancy to cry easily, will be unable to see as sharply as normal, will take longer to recover from the glare of lights, will wobble, will be unable to perform motor skills, and will be sleepy. He felt that if a person weighed 165 pounds and had drunk enough to reach a blood ethanol level of .20, an officer sitting next to that person should notice the odor of alcohol, which he stated emanates from both their breath and the pores of their body.

Dr. Ragan stated that the confusion stage occurs when a person’s blood ethanol level is between 0.18 to 0.30. At this stage, the person exhibits disorientation, mental confusion, possibly dizziness, exaggerated emotional states, and disturbances of vision and perception of color, form, motion, and dimensions. They also exhibit an increased pain threshold, increased muscular incoordination, staggering gate, slurred speech, apathy, and lethargy. Dr. Ragan testified that Gutierrez’s condition should have been well within this stage at the time Officer Phillips stopped him in Vinton. In this stage, he stated that the person will start staggering, and have a tendancy to be unable to stand straight or to stay still.

Finally, Batiste introduced the affidavit of Kermit W. Smith, Jr., a former Louisiana State Trooper. Smith stated that based on his personal knowledge, Officer | gPhillips failed in his duty when he stopped Gutierrez in the following ways:

1. Failed to request proof of compulsory motor vehicle liability insurance.
2. Failed to visually inspect cab of Gutierrez’s vehicle.
3. Failed to conduct field sobriety test on Gutierrez based on:
a. Gutierrez failed to follow commands.
b. Gutierrez was nervous.
c. Gutierrez returned to the cab of his truck to drink coffee when he was ordered to remain at the back of the truck.
d. Gutierrez failed to follow commands when Officer Phillips told him to enter his police vehicle.
e. Gutierrez had to support self on the bed of the truck while Officer Phillips radioed information.
f. Gutierrez driving eighty-five miles per hour in a seventy mile-per-hour-speed zone at 4:00 a.m.
g. Gutierrez had Texas tags and a North Carolina driver’s license.

After watching the video tape of the Vinton traffic stop, we agree with the trial court that the actions of Gutierrez at that time were insufficient to alert Officer Phillips that he was intoxicated. Gutierrez did not exhibit any of the signs discussed by Dr. Ragan occurring within either the excitement or confusion stages of influence, both of which stages he stated Gutierrez should have been within based on a calculated blood alcohol level between .23 to .31. Gutierrez did not appear to be driving erratically while being stopped and he was able to exit his vehicle and easily follow the instructions as given to him by Officer Phillips. Further, Officer Phillips testified that he did not smell alcohol on Gutierrez when seated next to him in his |inpolice unit, which Dr. Ragan felt he should easily detect if his blood alcohol level was at least .20. Based on the following observations, we find that the trial court correctly granted summary judgment in favor of Vinton and Officer Phillips, finding that Batiste would be unable to prove that Officer Phillips breached his duty of care in failing to arrest or detain Gutierrez due to intoxication.

We further find no merit in Batiste’s argument that Officer Phillips had a duty to impound Gutierrez’s vehicle as he did not possess proof of insurance. The owner of a vehicle registered in Louisiana is not allowed to operate that vehicle unless he can provide proof of insurance as provided by La.R.S. 32:863.1(A). If the driver is stopped by an officer for any reason and is unable to provide proof of insurance, then the officer is allowed to impound the vehicle and issue a notice of noncompliance to the driver. La.R.S. 32:863.1(B), (C). However, with regard to motor vehicles registered in another state, La.R.S. 32:863.1(1) only requires these procedures be followed if the vehicle is involved in a traffic accident or collision in Louisiana.

In this instance, Officer Phillips was not required to request proof of insurance when he stopped Gutierrez as a result of a speeding violation. Moreover, Gutierrez was not required to present such proof until he was involved in the accident which is the subject matter of this suit. Therefore, we find that the trial court correctly granted summary judgment in favor of Vinton and Officer Phillips by finding that Officer Phillips did not have a duty to request this information from Gutierrez.

J^TIMELINESS OF SUMMARY JUDGMENT

In his next assignment of error, Batiste argues that the trial court erred in granting the summary judgment on November 14, 2005, a day before the trial was to begin on November 15, 2005.

The trial court initially granted the motion for summary judgment on November 14, 2005. The motion was revisited on November 16, 2005, during a hearing on an exception of prescription. At that time, the following colloquy took place before the trial court and counsel:

BY MR. LABORDE:
I went back and read the Code of Civil Procedure. The Code of Civil Procedure, Article 966, a summary judgment article, prohibits a court from granting a summary judgment ten days prior to trial.
BY THE COURT:
The problem with that, though, is that it’s (sic) been set several times.
BY MR. LABORDE:
I realize that, Your Honor. I don’t want to get to the court of appeal the day of trial and have them send it back on those grounds.
BY THE COURT:
The reason it was heard so close to the trial date is because it had been filed by Mr. Wilkes many months ago. Is that correct?
BY MR. WILKES:
Yes, and it was set three times.
BY THE COURT:
I granted continuances in deference to you. That’s the only reason that I heard the summary judgment so late. I think because of those facts and because of the fact that you attempted to find Mr. Gutierrez to |12depose him, I think there’s some leeway in there. I’m going to go ahead and grant the summary judgment anyway for those reasons.
I granted the summary judgment, so therefore the trial date is gone. Y’all can take it up on appeal. If I’m wrong, I’m wrong. So be it.

Louisiana Code Civil Procedure Article 966(D) provides, “The court shall hear and render judgment on the motion for summary judgment within a reasonable time, but in any even judgment on the motion shall be rendered at least ten days prior to trial.” However, some courts have determined whether the delay in hearing the motion will result in prejudice to the opposing party or whether the delay was caused by the opposing party before deciding whether to vacate a judgment rendered in violation of Article 966(D). See Lassere v. State, Department of Health & Hospitals, Office of Public Health, 00-306 (La.App. 1 Cir. 3/28/01), 808 So.2d 513.

The motion for summary judgment was originally set for hearing on June 15, 2005. On June 8, 2005, Travelers sought and was granted a continuance to July 22, 2005. On July 13, 2005, a continuance was granted to Vinton and Officer Phillips, moving the hearing to August 24, 2005. At some point and for a reason not contained in the record, the hearing was changed to October 7, 2005. On October 13, 2005, Vinton and Officer Phillips filed a motion and order for an expedited hearing on the motion for summary judgment. The hearing was then set for November 10, 2005. It was rescheduled on the court’s own motion to November 14, 2005.

Although not clear from the record, it is obvious from the discussion between the trial court and Batiste’s counsel, that the trial court continued the hearing on more than one occasion to allow him more time to depose Gutierrez. Based on this, we find that the delay in hearing the motion was based in part on Batiste’s own 11sactions. Accordingly, we find no error in the trial court’s grant of summary judgment one day prior to the start of trial.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to the plaintiff-appellant, Terrence Batiste.

AFFIRMED.