author: PETERS, J.

text:
    Carrie BADON v. R.J. REYNOLDS TOBACCO CO., et al.
    No. 05-1048.
    Court of Appeal of Louisiana, Third Circuit.
    July 12, 2006.

      Jennifer Jones, Jones Law Firm, Cameron, LA, for Plaintiff/Appellant, Carrie Badon.
    James Nieset, Plauché, Smith & Nieset, Lake Charles, LA, for Defendants/Appel-lees, R.J. Reynolds Tobacco Co., et al.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
   PETERS, J.

h Carrie Badon appeals the dismissal on summary judgment of her claim for punitive damages and her claims based on the “unreasonably dangerous per se ” doctrine in connection with her suit for damages against various tobacco defendants arising out of her contraction of cancer. For the reasons that follow, we affirm.

DISCUSSION OF THE RECORD

Carrie Badon filed suit for compensatory and punitive damages against numerous tobacco manufacturers and distributors, including R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, Philip Morris U.S.A., Inc., Liggett & Myers, Inc., Liggett Group Inc., and Brooke Group, Ltd. (collectively referred to as the tobacco defendants). In her suit, Ms. Badon alleged that she contracted throat, larynx and vocal cord cancer as a result of her consumption of cigarettes manufactured and sold by the tobacco defendants. Through her pleadings, Ms. Ba-don alleged various theories of recovery and claimed compensatory as well as punitive damages. Among her allegations, Ms. Badon asserted failure to warn, suppression, and unreasonably dangerous per se theories of recovery and sought punitive damages pursuant to former La.Civ.Code art. 2315.3.

The tobacco defendants filed several motions for summary judgment seeking, among other things, to have Ms. Badon’s claim for punitive damages dismissed and seeking to have other claims dismissed on the basis of federal preemption. Following a hearing on the motions, the trial court rendered judgment granting the tobacco | ^defendants’ motions for summary judgment as to Ms. Badon’s punitive damages claim. The trial court also granted the tobacco defendants’ motions for summary judgment as to Ms. Badon’s failure to warn and suppression claims, finding that they were “preempted but only with respect to advertising and promotion” and holding that “posW969 claims regarding Defendants’ ‘neutralizing’ the effect of the mandated warning” were preempted. The trial court also held that Ms. Badon’s “unreasonably dangerous per se claims based on posW969 events” were preempted. Additionally, the trial court designated the summary judgments as final judgments for the purpose of immediate appeal. Ms. Ba-don has appealed.

OPINION

Punitive Damages

In addition to her claim for compensatory damages, Ms. Badon sought punitive damages pursuant to former La.Civ.Code art. 2315.3, which provided for such damages in connection with the storage, handling, or transportation of hazardous or toxic substances. , While this Article was repealed by 1996 La. Acts No. 2, 1st Ex. Sess., § 1, effective April 16, 1996, section 2 of the Act provided that its provisions would “only be applicable to causes of action which arise on or after the effective date hereof.” The Article’s applicability to the instant cause of action is not at issue on appeal.

Former La.Civ.Code art. 2315.3 provided in pertinent part as follows:

In addition to general and special damages, exemplary damages may be awarded, if it is proved that plaintiffs injuries were caused by the defendant’s wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances.

Importantly, former La.Civ.Code art. 2315.3 is subject to strict construction, as it imposes a penalty. Bonnette v. Conoco, Inc., 01-2767 (La.1/28/03), 837 So.2d 1219. |aIn order to obtain a punitive damages award under La.Civ.Code art. 2315.3, the plaintiff must prove that (1) the defendant’s conduct was wanton and reckless; (2) the danger created by the defendant’s wanton or reckless conduct threatened or endangered public safety; (3) the defendant’s wanton or reckless conduct occurred in the storage, handling, or transportation of hazardous or toxic substances; and (4) the plaintiffs injury was caused by the defendant’s wanton or reckless conduct. Id. The purpose of La.Civ.Code art. 2315.3 is threefold: (1) to penalize and punish tortfeasors for engaging in wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances that cause injury to others; (2) to deter tortfeasors and others who might follow their example from exposing the public to such dangers in the future; and (3) to provide victims injured by such conduct with incentive to act as the prosecutors of penal laws against such wrongdoers. Ross v. Conoco, Inc., 02-299 (La.10/15/02), 828 So.2d 546. In fact, the “history and the language of the article indicate a legislative determination that the public interest is adequately protected by punishing parties who wantonly or recklessly pollute our state and harm our citizens while storing, handling, or transporting hazardous or toxic substances.” Id. at 553-54.

The trial court granted summary judgment dismissing Ms. Badon’s claim for punitive damages pursuant to La.Civ.Code art. 2315.3 on the basis that the tobacco defendants’ conduct was not wanton or reckless and did not occur in the storage, handling, or transportation of the cigarettes. Louisiana Code of Civil Procedure Article 966(B) requires that the trial court grant summary judgment where sought “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 |4that mover is entitled to judgment as a matter of law.” For the following reasons, we agree with the trial court that the tobacco defendants were entitled to summary judgment on the issue as a matter of law because Ms. Badon’s allegations of liability do not pertain to the tobacco defendants’ conduct in storing, handling, or transporting the cigarettes. In so holding, we make no comment as to whether the other elements necessary for a La.Civ.Code art. 2315.3 claim were satisfied or whether federal law preempts such claims.

In Williams v. A.C. & S., Inc., 700 F.Supp. 309 (M.D.La.1988), the plaintiff sought punitive damages under La.Civ. Code art. 2315.3 in connection with injury to his lungs allegedly sustained through the manufacture and distribution of asbestos products. The defendants filed a motion to strike the punitive damages claims, which motion the court granted. In so holding, the court explained that “Defendants’ fault, if any, arises from the manufacture, design, and labelling of the products-conduct which, although within the realm of products liability, lies outside the scope of article 2315.3.” Id. at 310. Likewise, Ms. Badon’s allegations of liability pertain to the tobacco defendants’ manufacturing, design, and labeling activities, and not to their storage, handling, or transportation of cigarettes. We note that the Louisiana Supreme Court in Ross, 828 So.2d 546, relied on the reasoning in Williams to reject a claim for punitive damages under La.Civ.Code art. 2315.3 where the plaintiffs claimed that the defendants conspired to commit battery and to misrepresent fraudulently the harmful effects of vinyl chloride. In other words, the mere fact that a potentially hazardous product causes injury does not automatically bring a defendant allegedly involved with the product within the ambit of La. Civ.Code art. R2315.3; the plaintiff must still prove that the defendant stored, handled, or transported the product that caused the injury.

Ms. Badon has cited us to jurisprudence in support of her claim, but the jurisprudence she has cited is not compelling. Specifically, Ms. Badon cites jurisprudence that stands for the proposition that a manufacturer is not automatically insulated from punitive damages under La.Civ.Code art. 2315.3 simply due to its status as -a manufacturer. We agree. Nevertheless, the jurisprudence further holds that in order for a manufacturer to be subject to punitive damages under La.Civ.Code art. 2315.3, the manufacturer’s fault must have arisen out of the storage, handling, or transportation of toxic or hazardous substances. As set forth above, Ms. Badon’s allegations pertain to causation of her cancer due to the manufacture, design, and labeling activities of the tobacco defendants, and not to the storage, handling, or transportation of the cigarettes. In fact, Ms. Badon’s own expert, Dr. K. Michael Cummings, acknowledged that cigarettes are not hazardous unless they are smoked.

Notwithstanding, Ms. Badon cites jurisprudence wherein summary judgment was precluded due to a genuine issue of material fact as to whether a defendant “handled” a product, and she contends that the tobacco defendants in the instant case “handled their product in such a manner as to increase its addictive propensity.” However, semantics is insufficient to create a genuine issue of material fact. Regardless of the term she used, Ms. Badon’s allegation sounds in the design of the cigarettes, and not the handling of the cigarettes as the term is used in La.Civ.Code art. 2315.3. Importantly, Ms. Badon has failed to cite any case in which a court has imposed punitive damages under La.Civ. Code art. 2315.3 upon a manufacturer/distributor of cigarettes in favor of a plaintiff who has sustained injury |fifrom smoking cigarettes. Accordingly, we affirm the trial court’s grant of summary' judgment as to the La.Civ.Code art. 2315.3 claim.

Preemption

Ms. Badon based her claim for damages in part on allegations of the tobacco defendants’ failure to warn, neutralizing the effect of the mandatory warning, and suppression of information. She also alleged that cigarettes are unreasonably dangerous per se. The trial court granted the tobacco defendants’ motion for summary judgment as to Ms. Badon’s failure to warn and suppression claims, finding that they were “preempted but only with respect to advertising and promotion” and holding that “posH969 claims regarding Defendants’ ‘neutralizing’ the effect of the mandated warning” were preempted. The trial court also held that Ms. Badon’s “unreasonably dangerous per se claims based on post-1969 events” were preempted. Ms. Badon has appealed only the trial court’s rejection of her unreasonably dangerous per se claim.

Ms. Badon’s claim that cigarettes are unreasonably dangerous per se is based on Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 118 (La.1986), which held that a plaintiff can recover against the manufacturer of a product if the product is “unreasonably dangerous per se, i.e., too dangerous to be placed on the market.” The elements of a liability claim based on the product’s “unreasonably dangerous per se ” character require proof, first, that the product is in fact unreasonably dangerous per se. If the product itself is dangerous in fact and if its danger-in-fact outweighs its utility, it is unreasonably dangerous per se. This is explained in Adams v. Owens-Corning Fiberglas Corp., 04-1589 (La.App. 1 Cir. 9/23/05), 923 So.2d 118, 122, writ denied, 05-2318 (La.3/10/06), 925 So.2d 519, as follows:

Louisiana law recognizes products which are “unreasonably dangerous per se” as a separate class of defective products. For products in this category, liability may be imposed solely on the basis of the intrinsic characteristics of the product irrespective of the manufacturer’s intent, knowledge, or conduct. A product is unreasonably dangerous per se if a reasonable person would conclude that the danger-in-fact of the product, whether foreseeable or not, outweighs the utility of the product. This theory considers the product’s danger-in-fact, not whether the manufacturer perceived or could have perceived the danger, because the theory’s purpose is to evaluate the product itself, not the manufacturer’s conduct. Likewise, the benefits are those actually found to flow from the use of the product, rather than as perceived at the time the product was designed and marketed. The fact that a risk or hazard related to the use of a product was not discoverable under existing technology or that the benefits appeared greater than they actually were are both irrelevant. Halphen, 484 So.2d at 113-14.

Once a plaintiff has established the unreasonably dangerous per se character of the product, in this case cigarettes, liability is imposed solely on the basis of the intrinsic characteristics of the product. The remaining elements of the claim are then simple. In the blunt and substantively accurate language of the trial court, the plaintiff must prove only that “they’re selling[,] I smoked[,] and [I’m] dying.”

The decision in Halphen, 484 So.2d at 118, equated “unreasonably dangerous per se” with “too dangerous to be placed on the market.” The preemption assignment of error does not involve a determination on the merits of whether cigarettes are unreasonably dangerous per se. Rather, the question is whether, as a matter of law, the claim itself is preempted by federal law.

Pursuant to the Supremacy Clause of Article VI of the United States Constitution, state law may be preempted by federal provisions if Congress has either enacted a clear expression of that intent or it has legislated so comprehensively in a | sfield that it has left no room for state regulation. Epoch Wellsite Servs. v. Ortego, 03-547 (La.App. 3 Cir. 11/5/03), 858 So.2d 827 (citing Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984)), writ denied, 03-3348 (La.2/13/04), 867 So.2d 693. Additionally, preemption will be found when it is impossible to comply with both the federal and state provisions or when application of state law stands as an obstacle to the accomplishment and execution of Congress’s full objectives and purposes. Id.

Ms. Badon argues that Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), is controlling on the preemption issue and that it is in her favor. In Cipollone, the plaintiff sued certain cigarette manufacturers, alleging that they were responsible for the death of his mother, a long-time cigarette smoker. The plaintiff asserted various claims, including breach of express warranty, failure to warn consumers of smoking hazards, fraudulent misrepresentation of smoking hazards to consumers, and conspiracy to deprive the public of medical and scientific information about smoking. The Cipol-lone decision was that the express language of the Labeling Act preempted some, but not all, common law damages actions. Ms. Badon argues that Cipollone remains the authority in determining what is preempted by the Labeling Act and that, because there is no express language in the Act forbidding the application of Louisiana’s unreasonably dangerous per se cause of action, it is not preempted.

Ms. Badon’s reliance on Cipollone is misplaced. That case dealt with express preemption, the foreclosure of state action by express language in a congressional enactment. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001). Conflict preemption occurs when state law stands as an obsta-ele to the 19accomplishment and execution of the full purposes and objectives of Congress. Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). Conflict preemption may exist even in the absence of an express statement of preemptive intent. Geier v. Am. Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). The present case concerns conflict preemption and not express preemption.

The trial court concluded that Ms. Ba-don’s unreasonably dangerous per se claims were preempted because a ruling that cigarettes are unreasonably dangerous per se would have the effect of imposing a ban on the manufacture/sale of cigarettes where Congress has not enacted a ban. Our de novo review of the summary judgment record causes us to reach the same conclusion. In Food & Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 137, 139, 120 S.Ct. 1291, 1303, 1304, 146 L.Ed.2d 121 (2000), the United States Supreme Court stated that “Congress, however, has foreclosed the removal of tobacco products from the market” and that “[a] ban of tobacco products ... would ... plainly contradict congressional policy.” The court in Insolia v. Philip Morris Inc., 128 F.Supp.2d 1220, 1224 (W.D.Wis.2000), after pointing to Congress’s manifest policy in favor of keeping cigarettes on the market, stated:

Plaintiffs are correct that there is no law or regulation that preempts their claim that it is actionable negligence for defendants to continue to manufacture and sell cigarettes once they realized the danger that cigarettes posed. What preempts their claim is Congress’s considered decision that the sale of cigarettes is not only not illegal but part of a market the government supports.

Nevertheless, Ms. Badon urges in her appellate brief that “[t]he fact that the defendants may be found liable for these actions does not equate to a ban on the marketing of their product.” The phrase “these actions” as used in this argument can mean only the manufacture and sale of cigarettes. We cannot agree with Ms. Ba-don’s |inargument. Indeed, if Ms. Badon succeeds in proving the unreasonably dangerous per se character of cigarettes, she will have established a precedent for liability that cigarette manufacturers can avoid only by taking the product off the market. Thus, Ms. Badon will have effectively utilized Louisiana law to ban the sale of cigarettes in this state, in contravention of congressional policy foreclosing the removal of tobacco products from the market. Thus, the doctrine of federal conflict preemption applies. Therefore, as a matter of law, the tobacco defendants were entitled to summary judgment dismissing Ms. Ba-don’s claim based on the theory that cigarettes are unreasonably dangerous per se. Accordingly, we affirm the trial court’s grant of summary judgment dismissing this claim.

DISPOSITION

For the foregoing reasons, we affirm the grant of the summary judgments and remand this case to the trial court for further proceedings. We assess costs of this appeal to Carrie Badon.

AFFIRMED AND REMANDED.

      . The trial court also granted summary judgment dismissing Ms. Badon’s claims based on absolute liability under the "ultrahazardous activity” doctrine. However, Ms. Badon has expressly abandoned her appeal as to the granting of the summary judgment in this regard in view of the Louisiana Supreme Court’s decision in Suire v. Lafayette City-Parish Consolidated Government, 04-1459, 04-1460, 04-1466 (La.4/12/05), 907 So.2d 37.

      . Ray Badon, Russell Badon, Joe Mae Badon Roberson, and Scotty Joseph Badon joined Ms. Badon as party plaintiffs; but Ms. Badon alone filed the appeal currently before us. Thus, we will address the facts and issues only as they relate to Ms. Badon.

      . The significance of the year 1969 is because that was the effective date of the Federal Cigarette Labeling and Advertising Act, as amended by the Public Health Cigarette Smoking Act of 1969 (15 U.S.C.A. § 1331, et seq.), which requires that every package of cigarettes sold in the United States bear a warning label and bans cigarette advertisements on electronic communication media.


source: Caselaw Access Project

author: COOKS, Judge. PETERS, J.,

license: Public Domain

text:
    STATE of Louisiana v. Daniel R. FONTENOT, Jr.
    No. 06-226.
    Court of Appeal of Louisiana, Third Circuit.
    July 12, 2006.

      C. Brent Cored, District Attorney, Raymond J. LeJeune, Assistant District Attorney, Evangeline Parish, Ville Platte, LA, for Appellee State of Louisiana.
    Mark 0. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant Appellant Daniel R. Fontenot.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS and BILLY H. EZELL, Judges.
   COOKS, Judge.

h The Defendant pled guilty to molestation of a juvenile and was sentenced to serve eight years at hard labor, two years suspended, and upon release be placed on active supervised probation for three years. The trial court also found the offense was a crime of violence. Defendant appeals his sentence.

FACTS AND PROCEDURAL HISTORY

On April 14, 2005, the Evangeline Parish District Attorney’s Office filed a Bill of Information charging Defendant, Daniel R. Fontenot, with Aggravated Sexual Battery, a violation of La.R.S. 14:43.2.

On October 6, 2005, Defendant pled guilty to an amended charge, molestation of a juvenile, a violation of La.R.S. 14:81.2. At the plea hearing, the following exchange took place:

BY THE COURT:
Alright. Mr. LeJeune would you read to Mr. Fontenot what the maximum penalties [are that] he’s facing, and also give the factual basis that gave rise to these charges, within a limited scope because we don’t want to put out too much because this involves a juvenile.
BY MR. LEJEUNE:
Correct Your Honor. Molestation of a Juvenile is a violation of R.S. 14:81.2 and Molestation of a Juvenile is defined as the commission over the age of 17. In this particular case I think the defendant is 18 or 19.
BY MR. CHAPMAN:
19 or 20.
BY MR. LEJEUNE:
19 or 20, of any lewd or lascivious act upon the person or in the 1 ..presence of a child under the age of 17 and in this particular case Your Honor the victim was six (6) years of age, where there is an age difference of greater than two years, so there, — uh—, with the intention of rousing or gratifying the sexual desires of any person by the use of the duress menace [sic], and in this particular case Your Honor, the defendant did in fact insert, fondle and insert his finger into the vagina of the victim. Whoever commits the crime of Molestation of a Juvenile shall be fined not more than $5,000 or imprisoned with or without hard labor for not less than one nor more than ten years or both, provided that the defendant shall not be eligible to have his conviction 'set aside or his prosecution dismissed in accordance with provisions of Code of Criminal Procedure, Article 893 as we have acknowledged earlier this also is a crime that falls under the sexual reporting act.

The court ordered a pre-sentence investigation (PSI) and set a sentencing date.

On January 26, 2006, the court sentenced Defendant to serve eight years at hard labor, suspended two years of the sentence, and ordered that upon release Defendant be placed on active supervised probation for three years.' Counsel for Defendant immediately moved for reconsideration of the sentence, which the court denied. Further, the court found the offense was a crime of violence.

Defendant now appeals his sentence, assigning three errors:

1. The Trial Court erred in sentencing the defendant as having committed a crime of violence, as defined by La.R.S. 14:2(13).
2. In light of mitigating factors and circumstances in this case, the trial court erred in imposing an unconstitutionally excessive sentence for the defendant.
3. The Trial Court erred in its failure to adequately consider all of the mitigating factors in this case, thus has failed to comply with the mandates of La.C.Cr.P. Art. 894.1.

ASSIGNMENT OF ERROR NO. 1

In his first assignment, Defendant argues the lower court erred in sentencing him “as having committed a crime of violence, . as defined by La.R.S. 14:2(13).” That statute provides in pertinent part:

(13) “Crime of violence” means an offense that has, as an element, the use, attempted use, or threatened use of physical force pagainst the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. The following enumerated offenses and attempts to commit any of them are included as “crimes of violence”....

A number of offenses are then listed in the statute, but the present offense, molestation of a juvenile, is not among them. However, as Defendant acknowledges, at least one court has held the list is illustrative, rather than exclusive. See Coates v. Day, 00-2164 (La.App. 1 Cir. 12/28/01), 804 So.2d 893. The fourth circuit agreed with Coates, in Raymond v. Orleans Parish School Board, 03-0560 (La.App. 4 Cir. 9/3/03), 856 So.2d 27.

Molestation of a juvenile is defined by La.R.S. 14:81.2, which states, in pertinent part:

Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

Defendant argues there was no evidence that the crime at issue was violent, because no serious bodily injury occurred. At issue is not whether the present offense was executed in a violent manner, but whether molestation of a juvenile generally, as defined by La.R.S. 14:81.2, is a “crime of violence,” as defined by La.R.S. 14:2(13). Molestation is inherently a crime of violence, such as stalking, which is enumerated in La.R.S. 14:2(13). Such crimes are of a genera that is violent in nature. Thus, they are “crimes of violence” even when, in a particular case, the defendant does not inflict serious bodily injury. The elements and nature of the present offense fit the definition given in La.R.S. 14:2(13). Thus, the trial court did not err in this case by finding RDefendant committed a crime of violence.

Defendant argues the “crime of violence” designation “has significant consequences to the resulting sentence, and any [of] the sentences in any subsequent conviction.” We note the court’s finding that the offense was a crime of violence was subsequent to pronouncement of the sentence, and the court did not modify the sentence after making the finding. Further, Defendant does not point to any consequences the designation produced in his sentence. Diminution of the sentence was not affected by the designation, since molestation of a juvenile is clearly a sex offense, and thus is precluded from such diminution, pursuant to La.R.S. 15:537. Also, suspension of sentence is not precluded for a first-offense violation of La. R.S. 14:81.2. See La.Code Crim.P. art. 893(A).

Defendant also complains the designation could cause him to receive an increased sentence, should he later face habitual offender proceedings. However, this argument amounts to speculation. Discussing a similar type of argument, the fifth circuit stated:

[T]he Louisiana Supreme Court has stated that Louisiana jurisprudence has never required that a defendant be informed that a guilty plea may be used as the basis for the filing of a future habitual offender bill of information. See, State v. Nuccio, 454 So.2d 93, 104. (La.1984). Accord, State v. Manson, 01-159 (La.App. 5th Cir.6/27/01), 791 So.2d 749, 764.

State v. Tomlinson, 05-201, p. 6 (La.App. 5 Cir. 10/6/05), 916 So.2d 1200, 1203-04.

This court has discussed a similar notice problem:

Finally, we consider the defendant’s assertion that the sentencing hearing did not comply with La.Code Crim.P. art. 556.1(A)(1) because the trial court did not inform him that aggravated second degree battery would be designated as a crime of violence, which would mandate that the defendant serve eighty-five percent of his sentence before becoming eligible for parole or good time release under La.R.S. 15:574.4(B).
In State v. Herrington, 32,858 (La. App. 2 Cir. 12/8/99), 749 So.2d 862, the second circuit considered a similar argument presented by a ^defendant who had not been informed that he would have to serve eighty-five percent of his sentence before he could obtain parole following his plea of guilty to aggravated battery. In Herrington, the second circuit stated:
In State v. Lewis, 30,536 (La.App.2d Cir.4/8/98), 711 So.2d 383, the defendant made an argument similar to that raised in the present case. The defendant pled guilty to drug related charges. After the plea, the defendant discovered that he was not eligible for parole under La. R.S. 15:574.4 because he was a third felony offender. He appealed, arguing that his plea was not voluntary because he was not informed of his ineligibility for parole. This court held that the trial court did not have to inform the defendant that he was ineligible for parole because it was not part of the statute under which he pled guilty. In State v. Lewis, supra, this court stated:
Defendant was ... a third-felony offender. LSA-R.S. 15:574.4 A(l) provides, in pertinent part, that “[a] person convicted of a third or subsequent felony ... shall not be eligible for parole.” Thus, Defendant’s ineligibility for parole arises from his status as a third-felony offender and not as a mandatory portion of the sentence to be imposed under the statute of conviction.
Since Defendant is ineligible for parole due to his status as a third-felony offender rather than due to a mandate of the statute of conviction, the district court was not required to advise him of that ineligibility at the time it accepted his guilty plea.
In Státe v. Lewis, supra, the defendant was denied parole eligibility due to his status as a third felony offender. In the present case, the defendant is required to serve 85 percent of his sentence of incarceration due to his status as a violent offender. The requirement that the defendant serve 85 percent of his sentence prior to parole eligibility upon conviction of a crime of violence stems from La. R.S. 15:574.4, rather than the aggravated battery statute, La. R.S. 14:34. Under State v. Lewis, supra, the trial court was not required to inform the defendant that he would not be eligible for parole until he served 85 percent of his sentence.
Id. at 866-67.
| fiBecause the trial court is only required to designate whether a defendant is entitled to parole under the statute of conviction, which in the present matter is La.R.S. 14:34.7, the trial court was not required to inform the defendant that good time or parole would be barred under La.R.S. 15:574.4(B). Therefore, this assignment is without merit.

State v. Roe, 05-116, pp. 6-7 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, 1269-71 (footnote omitted), writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

Defendant complains the proceedings below lacked due process. He argues that he did not receive any notice that the offense would be designated a crime of violence. However, Roe indicates no such notice is necessary, and as already noted, Defendant has not demonstrated any prejudice. Further, it is not clear what remedy Defendant seeks from any such prejudice. He does not argue that his plea should be vacated. He does not claim that he would not have pled guilty had he known the offense would be designated a crime of violence. He did not bargain for any particular sentence, but instead simply pled guilty without regard to the potential sentence.

In State ex rel. Lee v. State, 04-1376 (La.6/17/05), 904 So.2d 695, the supreme court vacated a guilty plea because the defendant did not realize he was ineligible for the Impact Program. However in that case, participation in the program was a “material inducement” to the plea. In the present case, as already noted, there was no plea bargain and thus no such inducement.

In regard to the issue of potential prejudice, the designation of the instant offense as a crime of violence does preclude Defendant from eligibility for an intensive incarceration program. La.R.S. 15:574.4(A). However, there is no indication in the record that Defendant would have been recommended for the program, in the absence of the statutory prohibition. The PSI acknowledged Defendant’s eligibility at the time it was prepared. At that point, the court had not yet [ designated the offense as a crime of violence. However, the PSI did not recommend Defendant’s placement in an intensive incarceration program, because of the serious nature of the offense he pled guilty to committing.

As noted, the trial court did not err in this case by finding molestation of a juvenile is a crime of violence, pursuant to La.R.S. 14:2(13). Further, the lack of notice that the offense would be so designated does not constitute reversible error. Defendant was apprised at the plea hearing of the maximum possible sentence, received less, and suffered no apparent prejudice. Thus, this assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 2 & 3

In these assignments, Defendant asserts his sentence is excessive and the trial court failed to properly consider mitigating factors in the case as required by La.Code Crim.P. art. 894.1. Defendant made an oral motion to reconsider the sentence immediately after it was announced, but did not state a basis for the motion. Thus, he is now relegated to a bare claim of excessiveness. La.Code Crim.P. art. 881.1(E), State v. Mims, 619 So.2d 1059 (La.1993).

As noted previously, the trial court sentenced Defendant to serve eight years at hard labor, but suspended two years, with three years of supervised probation upon release. Louisiana Revised Statute 14:81.2(B) carries a maximum fíne of five thousand dollars, or imprisonment for one to ten years, or both.

The analysis for excessive-sentence claims is well-settled:

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, unit denied, 01-838 (La.2/1/02), 808 So.2d 331.

This court has also observed:

The trial court must state for the record the considerations taken into account and the factual basis for the sentence. La.Code Crim.P. art. 894.1(C). Although the trial court need not refer to every factor listed in Article 894.1(A), the record should affirmatively reflect that adequate consideration was given to codal guidelines in particularizing the defendant’s sentence. State v. Iron, 00-1238 (La.App. 3 Cir. 2/1[4]/01); 780 So.2d 1123, unit denied, 01-1232 (La.3/15/02); 811 So.2d 898. Yet, when the trial court fails to adequately address the factors of La.Code Crim.P. art. 894.1, “the trial court’s reasoning alone will not necessitate the need for re-sentencing as long as an adequate factual basis is found within the record.” State v. Butler, 98-1258, p. 7 (La.App. 3 Cir. 2/3/99); 734 So.2d 680, 684.
State v. Collins, 03-388, p. 4 (La.App. 3 Cir. 10/8/03), 865 So.2d 117, 120.
The requirements of La.Code Crim.P. art. 894.1 have been subsumed into courts’ analyses for excessiveness in State v. Telsee, 425 So.2d 1251 (La.1983), which observed that the article’s criteria help advance the constitutional analysis.

State v. Rubin, 04-1531, pp. 9-10 (La.App. 3 Cir. 4/6/05), 899 So.2d 180, 186, writ denied, 05-1218 (La.12/16/05), 917 So.2d 1106.

Further, in State v. Whatley, 03-1275, p. 6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 959, this court stated, “The fifth circuit, in [State v.] Lisotta, [98-646 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, [writ denied, 99-433 (La.6/25/99), 745 So.2d 1183] stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion: 1. The nature of the crime, 2. The nature and | flbackground of the offender, and 3. The sentence imposed for similar crimes by the same court and other courts.”

Regarding the first factor, even Defendant in his brief acknowledges the crime was “egregious.” Defendant pled guilty to inserting his finger into the vagina of the six-year-old victim.

As for the second factor, both appellate and trial counsel have raised the possibility that Defendant suffers from “diminished capacity.” The PSI indicates Defendant was placed in some type of special education classes in first grade for which he received federal benefits, and dropped out of school in the seventh grade. However, he subsequently earned his G.E.D. At the guilty plea hearing, he demonstrated to the trial court’s satisfaction that he had the capacity to proceed, and there is no indication in the record or in his present arguments, that he did not or does not understand the criminality of his actions.

In State v. Walker, 416 So.2d 534, 536 (La.1982), the supreme court explained that to comply with La.Code Crim.P. art. 894.1 a trial court must do more than merely state its reliance upon the PSI. However, the court in the present case acknowledged the arguments of counsel, which highlighted a number of factors relevant to sentencing, e.g., the age of the victim and Defendant’s first-offender status. Thus, the court did more than simply rely upon the PSI in sentencing, and considered the mitigating factors put forth by Defendant.

Regarding the third factor from Lisotta and Whatley, there is little jurisprudence on point for comparison of sentences. In State v. Calhoun, 94-2567 (La.App. 1 Cir. 2/23/96), 669 So.2d 1351, rev’d on other grounds, 96-786 (La.5/20/97), 694 So.2d 909, the court approved a six-year sentence under La.R.S. 14:81.2(B). Unlike the present Defendant, the defendant in Calhoun had a number [ inof prior arrests, and had acted systematically to lure underage girls to pose nude. On the other hand, the defendant in Calhoun, like the present defendant, was classified as a first offender. Also, the discussion in Calhoun does not mention that physical contact was involved, whereas the present Defendant physically violated the victim. Further, the youngest victims in Calhoun were thirteen years old, while the current victim was six.

In light of Calhoun, considering both the differences and the similarities between it and the present case, and the other two factors of the Lisottar-Whatley analysis, we find Defendant’s sentence was not grossly disproportionate to the severity of the crime and the trial court did not abuse its broad sentencing discretion. Therefore, these assignments lack merit.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find several errors involving the sentence imposed.

First, the trial court erred in failing to deny the Defendant eligibility for diminution of sentence in accordance with La. R.S. 15:537(A). That statute requires diminution of sentence be denied to all offenders who are convicted of or plead guilty to sex offenses, including molestation of a juvenile (the present offense). In State v. G.M.W., 05-391, pp. 1-2 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, 461, this court found that La.R.S. 15:537 is clearly a directive to the trial court, and the trial court’s failure to comply with La. R.S.15:537 renders the sentence illegally lenient:

At the outset, we note that, at sentencing, the trial court stated that it was denying the Defendant eligibility for diminution of sentence in accordance with La.R.S. 15:571.3(C)(4)(E). The trial court had no authority to deny the Defendant diminution of sentence under the statute cited; however, the trial court was required to deny the Defendant diminution eligibility under La.R.S. 15:537(A), which requires that | n diminution of sentence be denied to all offenders who are convicted of or plead guilty to sex offenses, including aggravated incest. We note that the second paragraph of La.R.S. 15:537 is clearly directed to the sentencing court, and the trial court’s failure to include a denial of diminution of sentence thereunder renders Defendant’s sentences illegally lenient. Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La.Code Crim.P. art. 882, this court is authorized to recognize and correct illegally lenient sentences. Thus, we amend the Defendant’s sentences to reflect that diminution of sentence is denied pursuant to La.R.S. 15:537 rather than La.R.S.57[l].3 as stated by the trial court.

Thus, the sentence imposed in the present case is illegally lenient because the trial court failed to deny diminution of sentence pursuant to La.R.S. 15:537. Normally, this court would amend the sentence on its own to reflect the denial of diminution eligibility under La.R.S. 15:537; however, as a result of errors that will be discussed below, the sentence must be remanded for correction by the trial court. Upon remand for correction, the trial court is instructed to deny eligibility for diminution of sentence in accordance with La.R.S. 15:537.

The next set of errors involves the trial court’s failure to impose conditions of probation. Since certain probation conditions are mandatory, this case must be remanded for imposition of these conditions. The trial court erred in failing to impose the conditions of probation mandated by La.R.S. 15:538. That statute mandates that certain probation conditions be imposed in order for a sexual offender to be eligible for probation. These conditions include limitations on business and volunteer work activities and limitations on the defendant’s proximity to certain facilities. They also include mandatory treatment plans in certain circumstances. _Jjj,Although the Department of Corrections may be enforcing the conditions of probation mandated by La.R.S. 15:538, in order for the conditions to be valid grounds for revocation, they must be imposed by the trial court rather than the Department of Corrections. In State v. Patterson, 628 So.2d 107 (La.App. 5 Cir.1993), the fifth circuit stated that any conditions of probation not imposed by the trial court are illegal and should not be used for revocation. See also State v. Day, 05-287 (La.App. 3 Cir. 11/2/05), 915 So.2d 950, where this court stated that the trial court, not the probation officer, must establish a payment schedule for fees ordered as a condition of probation. Thus, in order for the probationary conditions mandated by La. R.S. 15:538 to be valid conditions of probation, they must be imposed by the trial court.

Finding the trial court erred in failing to impose the conditions of probation mandated by La.R.S. 15:538, we must now determine whether the entire sentence must be vacated or whether the case must simply be remanded for imposition of the conditions mandated by La.R.S. 15:538. This court has not required vacation of a sentence and remand for resentencing when the trial court fails to establish a payment schedule for fees ordered as a condition of probation or when the trial court fails to impose a supervision fee. Day, 915 So.2d 950; State v. Bey, 03-277 (La.App. 3 Cir. 10/15/03), 857 So.2d 1268. See also State v. Thomas, 05-1051 (La.App. 3 Cir. 3/1/06), 924 So.2d 1146, where this court did not require vacation of the entire sentence when restitution was imposed outside of the defendant’s presence. In these situations, this court has remanded for the trial court to correct the error without vacating the entire sentence and remanding for resentencing. Therefore, we find the present case should be remanded for correction of the error (i.e., the imposition of the probation conditions mandated by La.R.S. 15:538), without vacating the entire sentence. Upon remand, the trial court is also instructed to deny eligibility for | iadiminution of sentence in accordance with La.R.S. 15:537.

The trial court also failed to impose a probation supervision fee. When probation is ordered, a probation supervision fee must be imposed as a condition of probation. La.Code Crim.P. art. 895 and Bey, 857 So.2d 1268. The failure to impose a probation supervision fee may sometimes be corrected by ministerial correction of the record. Id. However, because the sentence must be remanded for the trial court to impose the mandatory conditions of probation set forth in La.R.S. 15:538, we instruct the trial court to impose a probation supervision fee as mandated by La.Code Crim.P. arts. 895 and 895.1.

Finally, the trial court failed to advise Defendant of the two-year prescriptive period for filing post-conviction relief. Louisiana Code of Criminal Procedure Article 930.8 requires the trial court to advise a defendant of the time period at sentencing. Accordingly, upon remand for the above sentencing errors, the trial court should be instructed to advise Defendant of the prescriptive period provided for in La.Code Crim.P. art. 930.8.

DECREE

For the foregoing reasons, Defendant’s sentence is affirmed. However, the case is remanded for the trial court to impose the mandatory conditions of La.R.S. 15:538 and a probation supervision fee in accordance with La.Code Crim.P. arts. 895 and 895.1. The trial court is also instructed to deny Defendant eligibility for diminution of sentence as mandated by La.R.S. 15:537. Lastly, the trial court is instructed to advise Defendant of, the La.Code Crim.P. art. 930.8 prescriptive period for filing post-conviction relief.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

PETERS, J., concurs in the result with written reasons.

PETERS, J.,

concurring.

LI generally agree with the result of the majority opinion and specifically agree that the trial court did not err in concluding, under the facts of this case, that the offense committed by the defendant is a crime of violence as defined in La.R.S. 14:2(13). However, I disagree with the majority’s conclusion that a violation of La.R.S. 14:81.2 is always a crime of violence.

In addressing the defendant’s argument that the offense at issue could not be a crime of violence because his actions resulted in no serious bodily injury to the victim, the majority states that the offense of molestation of a juvenile “is inherently a crime of violence.” However, in rejecting the defendant’s argument, the majority simply states that “[t]he elements and nature of the present offense fit the definition given in La.R.S. 14:2(13).” Thus, the initial statement is simply dicta.

Louisiana Revised Statutes 14:2(13) defines a crime of violence, in pertinent part, as one “that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.... ” (Emphasis added.) However, La.R.S. 14:81.2(A) provides that the offense of molestation of a juvenile can be committed “by the use of force, violence, duress, menace, psyehological 12intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile.” (Emphasis added.) Thus, by use of the disjunctive “or,” La.R.S. 14:81.2 clearly provides for ways of committing the offense where physical force or violence is not involved, such as through “psychological intimidation” and “the use of influence.” Physical contact alone, no matter how reprehensible, is not tantamount to “physical force” as required by La.R.S. 14:2(13).

The majority reaches the conclusion that, because of the particulars of the offense involved, the defendant’s actions meet the requirements of La.R.S. 14:2(13) such that he committed a crime of violence, and I agree with that conclusion. However, I am concerned that the majority’s conclusion that the molestation offense is always a crime of violence sweeps too broadly and unnecessarily creates a bright-line rule of interpretation within this circuit.

I would reject the defendant’s argument concerning the lack of evidence of serious bodily injury simply because there is no requirement in La.R.S. 14:81.2 that the use of force or violence against a victim must result in bodily injury. By doing so, the issue of whether, in every case, the offense of molestation of a juvenile is a crime of violence would not have to be addressed. The trial court did not err in this case by finding that the defendant committed a crime of violence.

      . The date-stamp in the record shows that the amended bill was not filed until October 12; however the minutes and transcript show the bill was amended in open court before Defendant entered his plea. Although the Defense brief suggests the amendment was made pursuant to a plea agreement and the State’s brief suggests there was a "plea bargain,” the hearing transcript shows there was no agreement.

      . We note the second circuit has held that the requirements of La.R.S. 15:537 "are self-executing and are to be implemented by the Louisiana Department of Public Safety and Corrections. State v. Palmer, 37,355 (La. App.2d Cir.07/08/03), 850 So.2d 1058; State v. Fuller, 37,127 (La.App.2d Cir.06/25/03), 850 So.2d 909; State v. Moseley, 36,550 (La.App.2d Cir. 10/23/02), 830 So.2d 354 (Brown, L, concurring)." State v. Ellis, 38,740, p. 12 (La.App. 2 Cir. 8/18/04), 880 So.2d 214, 222. Notwithstanding the second circuit’s holdings, this court in G.M.W. found that the trial court is responsible for denying diminution under La.R.S. 15:537 and the failure to do so renders the sentence illegally lenient.