text:
    STATE of Louisiana, Appellee v. Garry ZEIGLER, Sr., Appellant.
    No. 42,661-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Louisiana Appellate Project’, by James E. Beal, Jonesboro, for Appellant.
    Garry Zeigler, Sr., Jerry L. Jones, District Attorney. Robert N. Anderson, Assistant District Attorney, for Appellee.
    Before STEWART, DREW and MOORE, JJ.
   STEWART, J.

_JjThe defendant, Garry Zeigler, Sr., was convicted of distribution of cocaine. After remand from this court, defendant was sentenced as a fourth felony offender to 30 years at hard labor without benefit of probation or suspension of sentence, the first two years of which to be served without benefit of parole. The defendant now seeks review of his sentence for excessiveness. Finding no merit in his claims, we affirm his sentence.

FACTS

A jury convicted Zeigler of distribution of cocaine, and the facts of the case are set out in this court’s previous opinion, wherein it affirmed the conviction. See State v. Zeigler, 40,673 (La.App.2d Cir.1/25/06), 920 So.2d 949. In short, the defendant was identified to the Metro Narcotics FBI Drug Task Force as a cocaine supplier, the task force then set up an undercover “buy bust” with Zeigler, and defendant sold six pieces of crack cocaine to an undercover agent in exchange for $100. The state filed a habitual offender bill of information alleging that Zeigler should be sentenced as a fourth habitual offender based upon the following prior felony convictions: (1) two counts of simple burglary on June 22, 1977, in Docket No. 37,702; (2) distribution of cocaine, a Schedule II CDS, on January 16, 1992, in Docket No. 91F0877; and, (3) possession of cocaine, a Schedule II CDS, on January 26, 2000, in Docket No. 98-F1617. The trial court 12refused to consider the 1977 convictions for simple burglary on the ground that it could not insure that the defendant’s due process rights had been protected in the absence of a transcript of that guilty plea colloquy. Thus, in accordance with La. R.S. 15:529.1(A)(1)(b)(i), the trial court sentenced defendant as a third felony offender to 25 years at hard labor, with credit for time served, without benefit of parole, probation, or suspension of sentence.

On appeal, this court mistakenly found that the defendant had been convicted of possession of cocaine with intent to distribute in Docket No. 98-F1617, instead of possession of cocaine. Thus, this court mistakenly ordered that the sentence be remanded so that the trial court could sentence Zeigler to life imprisonment without benefit of parole, probation or suspension of sentence as a third felony offender pursuant to La. R.S. 15:529.1(A)(11)(b)(ii). On remand, the trial court complied with this court’s sentencing instructions. On appeal from remand, this court noted its prior mistake in sentencing the defendant as a third felony offender to life imprisonment without benefit of parole, probation, or suspension of sentence. This court then considered the state’s appeal of the defendant’s sentence, wherein it argued that the trial court had erred in refusing to consider Zeigler’s 1977 convictions for simple burglary and that he should be considered a fourth felony offender. This court found that the trial court should have considered the 1977 convictions and sentenced him as a fourth felony offender pursuant to La. R.S. 15:529.1(A)(1)(c)(i), which states that defendant “shall be sentenced to imprisonment for the fourth or subsequent | afelony for a determined term no less than the longest prescribed for a first conviction but in no event less than 20 years and not more than his natural life.” See State v. Zeigler, 41,617 (La.App.2d Cir.12/20/06), 945 So.2d 946. Applying this formula to the prescribed sentence for distribution of cocaine under La. R.S. 40:967(B)(4)(b), the sentencing range for the defendant as a fourth felony offender is 30 years to life imprisonment at hard labor, without benefit of probation or suspension of sentence, and without benefit of parole for the first two years. On the second remand, the trial court imposed the minimum sentence of 30 years at hard labor without benefit of probation or suspension of sentence, and without benefit of parole for the first two years. This appeal ensued.

DISCUSSION

The defendant argues that the 30-year sentence is excessive and that the trial court’s original sentence of 25 years should be reinstated. The state argues that the 30-year sentence imposed on the defendant was the mandatory minimum sentence that could be imposed upon him under the habitual offender statute and that the minimum sentence is presumed to be constitutional. The state further argues that the defendant presented no evidence to show the trial court why anything less than the mandatory minimum sentence should be imposed.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 14894.1, not a rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688, 698 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.06/24/98), 715 So.2d 641, 643. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475, 478 (La. 1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049, 1051-52 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, 753, unit denied, 2004-2606 (La.06/24/05), 904 So.2d 728.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Bonanno, 384 So.2d 355, 358 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La.1985).

LThere is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.03/01/00), 754 So.2d 392, 894, unit denied, 2000-1467 (La.02/02/01), 783 So.2d 385. As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Grissom, 29,718 (La. App.2d Cir.8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2d Cir. 1991). The trial court shall exercise its sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v. Rogers, 405 So.2d 829, 831 (La. 1981). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958. While given wide discretion to impose a sentence within the statutory limits, the sentence imposed by the trial court should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7, 16, citing State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330, State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La. 1982); State v. Hardy, 39,233 (La.App.2d Cir.01/26/05), 892 So.2d 710, 712-713. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Cook, 674 So.2d at 959.

| fiThe state presented evidence proving the defendant to be a fourth felony offender, and the sentencing range for fourth felony offenders is “for a term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.” La. R.S. 15:529.1(A)(1)(c)(i). Because Zeigler was convicted of distribution of cocaine, the mandatory minimum sentence that could be imposed upon him as a fourth felony offender was 30 years. La. R.S. 40:967(B)(4)(b). Thus, the trial court imposed the mandatory minimum sentence on the defendant. At the second re-sentencing hearing, the trial court noted that it was incorporating its reasoning from the defendant’s original sentencing hearing as part of its reasoning for the current 30-year sentence. The trial court noted that it was considering the sentencing guidelines of La. C. Cr. P. art. 894.1 and the pre-sentence investigation report. The trial court noted Zeigler’s criminal history, which included two prior convictions for simple burglary, a prior conviction for distribution of cocaine, and possession of cocaine.

The trial court noted that there was very little in regard to mitigation evidence, but that it was considering the defendant’s limited education and his young children. The trial court noted that the defendant reported his past cocaine and marijuana use to the probation officer who was conducting the pre-sentence investigation; however, the trial court was not sure whether that should be considered an aggravating or mitigating circumstance. The trial court noted defendant’s age of 49 and the fact that the state considered him to be a mid-level drug dealer instead of a “kingpin.” The trial court |7noted the severity of the crime and problems to society caused by drug addiction. At both the original sentencing hearing and the second re-sentencing hearing, the trial court gave the defendant an opportunity to address the court. The defendant stated that he had been in prison when his older children were born and that he did not want to be in prison again now that he has more young children. Zeigler also indicated to the trial court that the amount of cocaine was worth less than $100, and that he thought this should be taken into consideration. Thus, a review of the record indicates that the trial court was cognizant of the sentencing considerations of La. C. Cr. P. art. 894.1.

Zeigler argues that the trial court’s original sentence of 25 years should be reinstated because the sentence of 30 years is excessive. In State v. Johnson, 1997-1906 (La.3/4/98), 709 So.2d 672, 675-677, the Louisiana Supreme Court explained the circumstances in which a downward departure from the mandatory minimum habitual offender sentence is warranted, finding that it is rare and only warranted under exceptional circumstances. The court noted that although the Louisiana Legislature has the authority to define criminal conduct and to provide penalties for that conduct, the judiciary retains the ability to find sentences excessive under Article I, Section 20 of the Louisiana Constitution. State v. Johnson, 709 So.2d at 676, citing State v. Sepulvado, 367 So.2d 762, 767 (La.1979). While having found that the Habitual Offender Law in its entirety is constitutional and that minimum sentences imposed under this statute are also presumed to be constitutional, the court recognized that this power to exercise a |sdownward departure from the mandatory minimum sentence extends also to sentences for multiple offenders. State v. Johnson, 709 So.2d at 676, citing State v. Dorthey, 623 So.2d at 1280-1281. The sentencing judge must begin with the presumption that the mandatory minimum sentence is constitutional. State v. Johnson, 709 So.2d at 676, citing State v. Dorthey, 623 So.2d at 1281, State v. Young, 94-1636 (La.App. 4th Cir.10/26/95), 663 So.2d 525. The court may only depart from the minimum sentence if its finds that the defendant presented “clear and convincing evidence” to rebut that presumption of constitutionality, which requires a showing that “ ‘[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.’ ” State v. Johnson, 709 So.2d at 676, quoting State v. Young, 663 So.2d at 528 (Plotkin, J., concurring).

Further, the court noted that a trial court wishing to give a sentence less than the mandatory minimum under the Habitual Offender Law cannot solely rely upon the nonviolent nature of the instant crime or of the past crimes as a justification for doing so:

While the classification of a defendant’s instant or prior offenses as non-violent should not be discounted, this fact has already been taken into account under the Habitual Offender Law for third and fourth offenders. LSA-R.S. 15:529.1 provides that persons adjudicated as third or fourth offenders may receive a longer sentence if their instant or prior offense is defined as a “crime of violence” under LSA-R.S. 14:2(13). Thus the Legislature, with its power to define crimes and punishments, has already made a distinction in sentences between those who commit crimes of violence and those who | fldo not. Under the Habitual Offender Law those third and fourth offenders who have a history of violent crime get longer sentences, while those who do not are allowed lesser sentences. So while a defendant’s record of nonviolent offenses may play a role in a sentencing judge’s determination that a minimum sentence is too long, it cannot be the only reason, or even the major reason, for declaring such a sentence to be excessive.

State v. Johnson, 709 So.2d at 676. The trial court must also keep in mind the goals of the Habitual Offender Law, which include the deterrence and punishment of recidivism. State v. Johnson, 709 So.2d at 676-677. Even when- the trial court does view a downward departure from the mandatory minimum sentence as necessary to avoid imposition of an unconstitutionally excessive sentence, it must impose the longest sentence that is not constitutionally excessive and “articulate specific reasons why the sentence he imposes instead of the statutory mandatory minimum is the longest sentence which is not excessive under the Louisiana Constitution” in order to “give as much deference as constitutionally possible to the Legislature’s determination of the appropriate minimum sentence for a habitual offender. State v. Johnson, 709 So.2d at 677.

Applying the reasoning from State v. Johnson, supra, to the present case, there is no justification for a sentence less than the mandatory minimum required by the Habitual Offender Law. The mandatory minimum sentence is presumed to be constitutional, and the defendant presented no evidence that his circumstances were exceptional or that he was the victim of the legislature’s failure to assign sentences meaningfully tailored to his culpability, to the gravity of his offense, or to the circumstances of his case. The trial court noted that the defendant had been involved in the judicial |insystem since 1975, and the Habitual Offender Law was intended to punish and deter recidivism. Because defendant has not shown that his case is exceptional and warrants a rare departure from the mandatory minimum sentence under the Habitual Offender Law, the trial court properly sentenced defendant within the statutory range prescribed for a fourth offender under the Habitual Offender Law.

CONCLUSION

In the light of these circumstances, Zeigler’s sentence does not shock the sense of justice. Thus, the trial court did not abuse its discretion, and the sentence is not constitutionally excessive. Therefore, this sentence is affirmed.

AFFIRMED.

      . The trial court omitted from the sentencing order that the first two years of the sentence should be served without benefit of parole based upon language in this court's last opinion regarding restriction of the benefit of parole on third and fourth habitual offenders when the underlying conviction contains no restriction on the benefit of parole. Even so, the trial court correctly noted that the first two years of defendant's sentence should be served without the benefit of parole, probation, or suspension of sentence pursuant to La. R.S. 40:967.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana in the Interest of B.H., Plaintiff-Appellee. v. A.H., Defendant-Appellant.
    No. 42,864-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Ross E. Shacklette, Bossier City, for Appellant A.H.
    Leslie Wright Kelly, for Appellant J.H.
    Department of Social Services, by Audie L. Jones, Shreveport, for Appellee State of Louisiana.
    Donald A. Weathersby, II, for Appellee B.H.
    Before STEWART, DREW and MOORE, JJ.
   MOORE, J.

11 This is an appeal of a judgment that terminated the parental rights of the mother and father of B.H. Only the mother appeals, alleging several assignments of error. After our review of the entire record in this case, we affirm.

Facts

The child was born prematurely on September 12, 2005 at Willis-Knighton Medical Center in Bossier City. He had cocaine in his system at birth. On the day following B.H’s birth, the hospital contacted the Bossier Office of Community Services (“OCS”). A report from that agency in the record states that the parents, J.H. and A.H., were living in a local hotel, and they did not have a stable place to live, nor adequate finances to purchase adequate baby supplies to permit the baby to be discharged. While they admitted they used drugs, they expressed their desire to become clean of drugs and get their lives in order.

The mother, A.H., was discharged on September 14, 2005, while the baby remained in the hospital for monitoring. Caseworkers and health care providers made arrangements to permit the parents to live at the hospital, so they could learn proper care for the child and be provided an appropriate home environment. The OCS remained in contact with the hospital’s social worker to monitor the parents’ progress.

Despite these efforts, the parents disappeared from the hospital on or around September 21, 2005. A caseworker was able to track the father down by following up on a cell phone call from a friend of J.H. She spoke to J.H., who told her they had gone to Indiana to take care of some warrants 12in order to stay out of jail. J.H. said they were looking for an apartment near the hospital. The caseworker urged the parents to visit the child immediately, but the parents did not come to the hospital.

On September 30, 2005, by Instanter Order, the district court placed B.H. into the custody of the Department of Social Services. A continued custody hearing was held on October 5, 2005, and B.H. was continued in the custody of the department. Neither parent was present at this hearing and their whereabouts were unknown. B.H. was placed in foster care on October 6, 2005. Pursuant to a petition filed by the Bossier Parish District Attorney, the child was declared a Child In Need Of Care by the Bossier Parish City Court on December 2, 2005. A.H. was not present at the hearing.

The OCS was familiar with A.H. and J.H., who have three older children in foster care. Regarding B.H., the OCS developed case plans on October 25, 2005, March 30, 2006, and September 21, 2006, designed to rehabilitate A.H. in order to reunite her with B.H. since she, as well as J.H. (who also had a case plan), had expressed a desire to get straight and be reunited with B.H. These court-reviewed and approved plans are ordinarily developed with input from the parents, but at least with the initial plans, the parents, however, could not be located because their whereabouts were unknown.

Among other things, the case plan called for A.H. to acknowledge the reasons that B.H. was in foster care by verbalizing her failures and recognizing the barriers that would prevent return of the child, namely, lack |sof supervision, abandonment, substance abuse, and blaming her children for her substance abuse. She was also required to provide a safe home environment by learning and demonstrating appropriate discipline techniques, keeping drugs and alcohol away from the home, improving her judgment regarding protection of her children and encouraging them during foster care. The plan called for A.H. to attend parenting and anger management classes and provide certificates to the agency of her attendance. The agency agreed to notify her of the schedule and provide transportation to the classes if she could not provide her own transportation. A.H. was required to report to the agency if she could not attend. A.H. was to submit to a substance abuse evaluation and comply with the recommendations of the evaluation. She would agree to random substance abuse testing, use only prescribed medications, and stop interaction and involvement with people involved in drugs and addictive substances. The plan also required A.H. to submit to a psychological evaluation and assessment, and follow up on the recommendations of the evaluation. Again, the agency agreed to arrange for the evaluation and inform A.H. of the scheduled date. Importantly, the plan required A.H. to keep the caseworker updated on changes in her personal situation, including changes of address and telephone numbers.

After disappearing for six months, A.H. turned up in March of 2006 after she was arrested for possession of crack cocaine. In May, she pled guilty to the charge and received a five-year suspended sentence, with two years supervised probation. She entered a halfway house, the Christopher RHouse, in May of 2006. During this time she returned to work for General Motors.

In August of 2006, A.H. left the Christopher House, and was subsequently arrested for violation of her probation for, among other things, testing positive for cocaine and criminal trespass. A.H. is currently an inmate at the women’s prison in St. Gabriel, Louisiana. She testified that she is eligible for release from incarceration in March of 2008.

On January 31, 2007, the state began termination of parental rights proceedings. However, despite being offered assistance by the department, the parents failed to comply with the case plan for rehabilitation and essentially abandoned the child. Extended family members who were contacted by the OCS stated that they were not interested in raising the child or assisting in the care of the child in any way.

A hearing or trial was held on March 30, 2007, both parents were present by court order at the termination of the parental rights hearing. The court ruled from the bench and judgment was signed on May 9, 2007.

The court determined that B.H. had been in state custody since shortly after his birth. The court made findings that both parents had abandoned the child for periods longer than four months, failed to contribute to the support of the child for six months, and had substantially failed to comply with the case plans social workers had made for them, nor did they make any measurable progress since the plans were implemented. They have not given the child any material support ever and both were currently in prison with the earliest date of possible release in March of 2008. The court | ^concluded that there was no reasonable expectation that they would improve in the future, and the child was in need of a permanent and stable home environment now. It therefore terminated the parental rights of both parents as requested by the state and certified B.H. as eligible for adoption.

The mother has appealed. In her appeal, appellant alleges that the trial court erred in finding that the state carried its burden of proof for termination of parental rights under Louisiana Children’s Code article 1015(4) and 1015(5), and the court erred in finding that it was in the best interest of B.H. to terminate the parental rights of his mother.

Discussion

It is well-established that a parent has a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with his or her children. State in the Interest of AC., 93-1125 (La.1/27/94); 643 So.2d 719. This parental interest includes the “companionship, care, custody, and management of his or her children.” Id. at 726 (quoting Lassiter v. Department of Social Svcs., 452 U.S. 18, 27, 101 S.Ct. 2153, 2160, 68 L.Ed.2d 640 (1981)). Congruent with the parental interest, the state has a legitimate interest in limiting or terminating parental rights under certain conditions. State in the Interest of AC., 93-1125 (La.10/17/94); 643 So.2d 743, cert. denied, 515 U.S. 1128, 115 S.Ct. 2291, 132 L.Ed.2d 292 (1995).

Termination of parental rights is a severe and terminal action, so the legislature has mandated that in order to terminate these rights, the state must satisfy an onerous burden of proof. Namely, it bears the burden of ^establishing each element of a ground for termination of parental rights by clear and convincing evidence. La. Ch. C. art. 1035; State in Interest of D.G. v. Danny G., 30,196 (La. App. 2 Cir. 10/29/97), 702 So.2d 43. Although there are seven statutory grounds for involuntary termination of parental rights set forth in La. Ch. C. art. 1015, only one ground need be established. State ex rel. SNW v. Mitchell, 2001-2128 (La.11/28/01), 800 So.2d 809; State in Interest of D.G. v. Danny G., supra. Pursuant to the clear and convincing proof standard, the state must show that the parents’ failure to comply with the enumerated condition is highly probable. State in the Interest of Q.P., 94-609 (La.App. 3 Cir. 11/2/94); 649 So.2d 512. Once a ground for termination has been established, the judge may terminate parental rights if the termination is in the best interest of the child. La. Ch. C. art. 1039.

In termination of parental rights cases, the trial court’s factual findings, including the finding that a parent is unfit and there is no reasonable expectation of reformation, will not be set aside in the absence of manifest error. State, Dept. of Social Services ex rel. D.L.F. v. Phillips, 84,645 (La.App. 2 Cir. 4/4/01), 785 So.2d 155; State in Interest of KLB v. Biggs, 29,512 (La.App. 2 Cir. 2/28/97), 690 So.2d 965; State in Interest of S.D. v. Moore, 31,192 (La.App. 2 Cir. 8/19/98), 717 So.2d 265.

According to La. Ch. C. art. 1015(4) and (5), the grounds for termination of parental rights include: * * *

(4) Abandonment of the child by placing him in the physical custody of a nonpar-ent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to ^permanently avoid parental responsibility by any of the following:
(a) For a period of at least four months as of the time of the hearing, despite a diligent search, the whereabouts of the child’s parent continue to be unknown.
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

La. Ch. C. art. 1036(C) provides that lack of parental compliance with a case plan may be evidenced by one or more of the following:

(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
ls(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

The state must prove that the parent is unfit to retain parental control and that there is no reasonable expectation of reformation in the foreseeable future in order to obtain termination of parental rights when the child has been removed from the parent’s home. State in Interest of D.T. v. K.T., 29,796 (La.App. 2 Cir. 6/18/97), 697 So.2d 665. Lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by any physical or mental illness, mental deficiency, substance abuse or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior. La. Ch. C. art. 1036(D)(1).

By her first two assignments of error, appellant contends that the trial court erred by finding that the state carried its burden of proof under La. Ch. C. art. 1015(4) and (5). The trial court found that the state had met its burden under both paragraphs of Art. 1015. The issue A.H. raises under her first assignment concerns the trial court’s finding that she failed to make significant contributions toward the child’s care and support despite the fact that they were sporadically employed and sometimes earned a good wage. A.H. argues that she was not required in her case plan nor was she ever asked to care for or to make contributions toward the child’s care and support. Additionally, she notes that Patricia Cover, the caseworker from |flthe OCS assigned to this case, testified that A.H. did on occasion purchase some items for the child. She contends the state should have asked her to make contributions in her case plan.

A.H. testified that she was employed by General Motors, and she earned approximately $800 to $900 per week when she was not incarcerated. Although the record of testimony is not precise regarding the exact time periods she was actually working at GM and the time periods she was not working due to incarceration, the record indicates that she was working at GM during the time she was living at the Christopher House. In other testimony, A.H. said she did not attend a scheduled appointment set up by the state because it conflicted with her work. It is clear, therefore, that while A.H. did not maintain steady employment due to incarceration, there were some periods of employment.

In Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982), the United States Supreme Court recognized that natural parents have a fundamental liberty interest in the care, custody, and management of their child and that the natural parents’ interest does not “evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” The court went on to acknowledge that while the state has an “urgent interest” in a child’s welfare and in providing the child with a permanent home, as long as there is reason to believe that a positive, nurturing parent-child relationship exists, the state’s interest must favor preservation over severance of natural familial bonds. Id. at 766, 102 S.Ct. at 1401 (quoting Lassiter v. Department of Soc. Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). Thus, the court found that parents who are faced with the possibility of forced dissolution of their parental rights must be provided with fundamentally fair procedures in order to ensure that children’s legal bonds are not erroneously severed from fit parents. Id. at 753-54, 102 S.Ct. at 1395; State ex rel. G.J.L., 00-3278 (La.6/29/01), 791 So.2d 80, 84.

Louisiana Children’s Code article 1015(4)(b) provides that proof of a parent’s intention to permanently avoid parental responsibility is demonstrated by his or her failing to provide significant contributions to the child’s care and support for any six consecutive months.

Louisiana Civil Code article 227 provides that “[fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.” Clearly the children are the intended beneficiaries of this obligation. Moreover, this obligation to support offspring is not restricted to married parents; rather, the fact of paternity or maternity, and not the act of marriage, obliges parents to nourish and rear their children. Hogan v. Hogan, 549 So.2d 267 (La.1989) (citing 1 M. Planiol, Civil Law Treatise, pt. 2, § 1681).

On the other hand, the cases we have reviewed regarding a finding by the trial court that the parent failed to provide significant support to a child or children in state custody all involved the parent’s failure to voluntarily pay support or make specified support payments called for in the case plan. See State ex rel. A.T., 2006-0501 (La.7/6/06), 936 So.2d 79; State ex rel. M.H. v. K.W.H., 40,332 (La.App. 2 Cir. 9/23/05), 912 So.2d 88; State in the Interest of P.A.R., 2006-423 (La,App. 3 Cir. 10/18/06), 942 So.2d 57; State ex rel. M.L., 2000-153 (La.App. 3 Cir. 5/3/00), 761 So.2d 103.. In this instance, however, the case plan does not call for or specify any parental contribution. Ms. Cover stated that these plans are generally developed in consultation with the parents, who were absent in this case. A.H. did not attend these meetings either because she failed to notify the OCS of her whereabouts and had disappeared or, even when she received actual notice, she did not attend. Thus we can surmise that the likely reason that there was no parent’s financial contribution assessment on the case plan form was because neither parent attended the scheduled meetings to create the case plan even when they were given notice. The case plan was thus initially adopted, approved by the court and reviewed as required by law.

Although it is clear from this record that A.H. did not make significant contributions in support of B.H., we conclude that because the case plan did not call for A.H. to make any financial contributions toward the care and support of the child, and there was no testimony that anyone ever requested that she make financial contributions to support B.H. once the child was in state custody and in foster care, we conclude that the trial court erred in ruling that the state had met its very heavy burden on this single issue of fact. We emphasize, however, that our holding on this issue is based upon the specific facts of this case, and should not be construed to create a rule that a parent has no obligation to provide significant support absent such an order in the case plan.

|i?A.H. argues also that the trial court was incorrect in its conclusion that the parents failed to have significant contact with the child because of their own actions. The record shows that during the 18 months since his birth, A.H. saw the child only these six times even though the case plan called for her to visit the child every two weeks. Hence, out of a possible 36 visits, A.H. made it to only six visitations, and these occurred between May and August of 2006 when she was temporarily undergoing rehab. The father visited the child only once after his birth. A.H. was incarcerated for significant periods during this time.

A.H. contends that the trial court erred as a matter of law by concluding that incarceration is categorically not a defense or “just cause” for the parents failing to maintain significant contact with the child because it was their own decision to violate the criminal statutes. The alleged error of law is that the trial court’s ruling could be construed to mean that the court ruled as a matter of law that inear-ceration can never be a just cause for not maintaining contact with the child.

The trial court cited State ex rel. J.T.C., 04-1096 (La.App. 5 Cir. 5/15/05), 895 So.2d 607 in its ruling. In that case, the court stated that the issue of incarceration should be decided on a case-by-case basis, recognizing that facts may vary regarding this issue and each case is decided upon its particular merits.

The facts of this case are somewhat analogous to those in State ex rel. M.H. v. K.W.H., supra, which involved the incarceration issue in the context of significant contributions toward support of the children. In his appeal of |iathe judgment terminating his parental rights, the father argued that the state failed to carry its burden of proving that he demonstrated an intent to permanently avoid all parental responsibilities by showing that he did not provide support for his children. He argued that his incarceration prohibited him from supporting the children, and therefore the failure was justified. We noted in our opinion that “just cause” is an affirmative defense which allows a parent, after the state has proven abandonment for failure to provide for the children’s care and support, to prevent termination by proving that the failure was with just cause and excusable. Id. at 92; State in Interest of M.L., 95-0045 (La.9/5/95), 660 So.2d 830.

The state adduced testimony indicating that the father had provided gifts to the children during one visit, but he did not provide financial support prior to being incarcerated, nor did he provide support while he was in jail. The father’s sole justification for the failure to support the children is that he was incarcerated. We rejected this argument, stating that incarceration is not a just cause defense for failure to support children or maintain contact with them in a termination of parental rights case if the parent is incarcerated as a result of his own actions. Id. at 92; State ex rel. J.T.C., supra. We concluded that the state had carried its burden of proof of showing that the father had failed to significantly contribute to his children’s care and support under Art. 1015(4).

The evidence and testimony at the termination proceedings in the case sub judi-ce indicate that A.H. disappeared from the hospital around September 21, 2005, some nine days after B.H. was born. The OCS | ^caseworker, Ms. Cover, was able to track down J.H. on September 29 by calling the cell phone number of an anonymous caller to the hospital who was not- J.H., but a friend. She urged them to come to the hospital to visit B.H., but despite promises, it was to no avail. A.H. did not notify the OCS of her whereabouts for several months. Ms. Cover did not know of A.H.’s whereabouts from September of 2005 until March of 2006, despite efforts to find her from relatives, contacting jails and newspapers. During this period, A.H. provided no support for the child, nor any letters, cards or gifts for the child. During the entire period from September 30, 2005 until January 31, 2007, she visited the child only six times, and these visits were confined to the relatively short period between May and August of- 2006 while she was living in the Christopher House.

Ms. Jennifer Yarborough testified that she supervised A.H.’s probation beginning May 2, 2006. The record shows that A.H. was arrested on March 10, 2006 for possession of crack cocaine. She pled guilty to possession of cocaine on May 2, 2006. She received a 5-year sentence, suspended, with two years supervised probation. Her probation was revoked because she subsequently violated her probation by testing positive for cocaine on August 31, 2006 and September 8, 2006. She was also arrested for criminal trespass on September 18, 2006. Ms. Yarborough testified that A.H. also failed to keep her probation supervisor informed of her whereabouts, moving on August 1, August 25 and September 15, 2006, all without notification to the probation officer. A.H. was referred to a substance abuse program on August 31, but did not show up for two [1Bscheduled appointments. Finally, she showed up on September 8, but did not participate in the group sessions and was dismissed from the program for refusal to participate.

Based on this record and testimony, we find no error of law or fact in the trial court’s conclusion that A.H.’s incarceration was not a defense to her failure to maintain contact with the child. The facts show that A.H. failed to maintain the contact required in the case plan even when she was . not incarcerated. The record shows the trial court considered the facts in this case and correctly concluded that AH.’s incarceration is not just cause in this case for her failure to maintain contact with the child. We hold that under the particular facts and circumstances in this case established by the record and testimony, the state proved by clear and convincing evidence that A.H. demonstrated an intention to permanently avoid parental responsibility, by failing to maintain significant contact with B.H.,by not visiting him or communicating with him for a period of six consecutive months.

With regard to appellant’s second assignment, that is, that the trial court erred by finding that termination was warranted under Art. 1015(5), A.H. contends that the OCS failed to provide rehabilitative services to her so that she could comply with , her case plan. Specifically, she argues that the trial court erred by stating that it was unaware of any authority that required the department to track down the parents to determine their whereabouts or their residence, or to provide services for substance abuse, psychological evaluations, parenting counseling, visitation, or other such services while the parents are incarcerated. It contends that the state failed | ir,to assist A.H. in working her case plan in many particulars, including (1) failing to assist her in finding housing; (2) failing to timely schedule drug testing or to continue it once she was incarcerated; (3) failure to timely schedule her psychological evaluation once she was incarcerated; (4) failing to provide visitation while she was incarcerated; (5) failing to timely inform her that the state would not accept the parenting class she completed; and, (6) failing to recognize the substance abuse class she had completed and failing to inform her that it did not accept this treatment and failing to schedule treatment for her.

To support these contentions, A.H. relies on the supreme court case of State ex rel. A.T., 2006-0501 (La.7/6/06), 936 So.2d 79. In that case the supreme court held that the OCS has an obligation to make reasonable efforts to assist the parent in finding suitable housing before it may seek to terminate parental rights under La. Ch. C. art. 1015(5). (Emphasis purs). The court affirmed the judgment of the appellate court reversing the trial court’s judgment that terminated the parental rights of the mother with respect to her three children. Both fathers voluntarily surrendered their parental rights at the termination hearing.

The key issue in the case concerned the mother’s failure to provide adequate housing for the children as called for in the case plan. The first case plan filed by OCS required several actions be taken by the mother toward achieving the goal of reunification, including: obtaining and maintaining adequate housing for her family; obtaining and maintaining employment and income sufficient to support her family; contributing ⅜50 h7per month to the care of her children; obtaining spousal abuse assistance and refraining from involvement in relationships that may include domestic violence; completing a substance abuse assessment and participating in drug screens; and attending all scheduled visitations with her children.

The OCS filed a petition for termination of parental rights and a trial was held on June 28, 2005. Karen Fontenot, the mother’s OCS caseworker, testified at trial that the mother had failed to comply with the case plans. According to Ms. Fontenot, the mother’s major failure was that throughout the entire time period, she continued to live with her own mother in the two-bedroom trailer that was not appropriate because the grandmother would not allow the children to live there. The mother never identified a home for the OCS to come look at where she wanted her children to live. When asked “[d]o you know of any services or referrals that the department could give to the mother that they have not done so?”, Ms. Fontenot answered “I personally can’t think of anything that was not offered.” She was never questioned specifically about any services that were offered to Ms. A to assist her in finding suitable housing, however, it is undisputed that after the children were turned over to the OCS in October of 2002, the OCS provided no assistance or services to Ms. A to assist her in obtaining adequate housing.

|1sBased on these facts, the supreme court held that the trial court’s order terminating parental rights under La. Ch. C. art. 1015(5) was erroneous because the record reflected that the OCS never undertook reasonable efforts at reunification after the children were taken into state custody. Specifically, the OCS offered no rehabilitative services to the mother to assist her in obtaining suitable housing after the children were taken into custody, “yet this was the main, if not sole, impediment to reunification cited continuously by OCS.” Id. at 85.

Turning now to the instant case, we conclude that the facts of State ex rel. A.T., supra, are inapposite. We note initially that in the instant case, A.H. complains about the trial court’s statement while ruling that it knew of no authority that .required the OCS to provide certain rehabilitative services which she now complains she was not offered while she was incarcerated. The mother in State ex rel. AT., supra was not incarcerated when the OCS failed to assist her in finding housing. In this case, A.H. is incarcerated in the women’s prison at St. Gabriel, Louisiana, well over two hundred miles from this area. On the other hand, B.H. is in foster care with local foster parents. We therefore conclude that it would be unreasonable to require the OCS to interfere with the Department of Corrections to schedule OCS drug screening, psychological testing and visitations for A.H.

A more critical point relevant to the outcome of this case is that, unlike the mother in State ex rel. A.T., supra, A.H. failed to keep the OCS apprised of her whereabouts both when she was in or out of jail. This fact alone was enough to justify a finding by clear and convincing evidence that |1SA.H. abandoned B.H. under La. Ch. C. 1015(4)(a). Nevertheless, the record indicates that Ms. Cover from the OCS undertook considerable efforts to locate A.H. and her husband, despite the fact that the obligation rested with A.H. We find it difficult to comprehend how A.H. can reason that the OCS has somehow failed to provide her with rehabilitative services when, for the most part, the OCS could never find her because she failed to supply the OCS with any information of her whereabouts so that such services could be offered. It is also clear from this record that when A.H. was located and apprised of meetings regarding the case plans, her psychological assessment, substance abuse tests, etc., she failed to appear for inexcusable reasons or no reasons at all.

Finally, we observe that the supreme court’s primary concern in State ex rel. A.T., supra, was that the sole grounds for which the state sought to terminate the mother’s parental rights could be simply the result of poverty. The mother had substantially complied with all the other requirements in her case plans. By contrast, in this instance, A.H. has essentially failed to meet all of the substantial requirements of her case plan. For this reason, we conclude that A.H.’s argument that the state failed to provide her with the rehabilitative services she needed while she was incarcerated and while she was not incarcerated is without merit.

Best Interest of the Child

Finally, A.H. complains that the trial court did not state any particularized reason why it was in the best interest of the child that A.H.’s parental rights be terminated. She claims there was no testimony as to why [⅞0⅛ would be in the child’s best interest.

We have no hesitation in affirming the trial court’s finding that it is in the best interest of B.H. to terminate A.H.’s parental rights. There is no question that more than a year has passed in which B.H. was removed from A.H.’s custody and she has not since substantially complied with her case plan. La. Ch. C. art. 1015(5). Alter abandoning B.H. shortly after he was born, A.H. saw the child only six times over the next 18 months. She was clearly using cocaine at the time the child was born. Although she expressed a desire to get straight after the baby was born, she went straight back to using cocaine and disappeared for six months, when she was arrested for possession of cocaine. Finally, she tested positive again for cocaine use in August or September of 2006. The evidence is overwhelming that A.H. failed to complete to any appreciable degree the requirements of her court-approved case plans. She failed to keep the OCS and her probation officer informed of her whereabouts; she intentionally did not submit to a scheduled psychological evaluation; she failed to complete an approved parenting class; she failed to submit to drug screens; she failed to complete a substance abuse assessment; she failed to establish and maintain a home to which she could bring B.H.; and, she ignored the advice and warning of the OCS not to leave the Christopher House to reunite with her husband, who was having the same problems with drug use, criminal behavior, and failure to comply with his case plan. Clearly, the court was correct in concluding that, based on the pattern of behavior she exhibited, there was no reasonable expectation of improvement in her conduct by A.H.

l2rThe purpose of a termination proceeding is to serve the best interests of the child which includes achieving permanency and stability for the child. State ex rel. D.S.C. v. J.C.R., 35,898 (La.App. 2 Cir. 2/27/02), 811 So.2d 198. Considering the child’s age and his need for a safe, stable and permanent home, and the evidence that A.H. is unwilling to provide such a home, we conclude that the trial court did not err in concluding that it is in the best interest of B.H. that the parental rights of A.H. be terminated.

Conclusion

We therefore conclude that the trial court did not err in law or commit manifest error in finding that A.H.’s parental rights must be terminated. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . The mother apparently substantially met the other goals in the case plan. Although she initially failed to pay her support obligation for 11 months, thereafter she maintained a steady stream of jobs and paid child support through garnishments of $66 per month per child. In addition, while the mother went to a substance evaluation and then missed several sessions, the OCS received notification that she did not need substance abuse treatment. The mother attended all visitations with the children except one, passed all drug screens, and attended a spousal abuse program on March 25, 2003.


author: CARAWAY, J.

text:
    CENTURY READY MIX CORP., Plaintiff v. Dennis BOYTE d/b/a Dennis Boyte Construction and Dawson Farms, L.L.C., Defendants.
    No. 42,634-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      C. Bryan Racer, Monroe, for Appellant, Dawson Farms, L.L.C. and Appellee, Dennis Boyte.
    McNew, King, Mills, Burch & Landry, L.L.P., by Brady D. King, II, Monroe, Jennifer H. Johnson, for Third Party Ap-pellee, First National Bank of Crossett.
    W. Michael Street, for Appellee, Century Ready Mix Corp.
    Before STEWART, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

h An unpaid cement supplier instituted suit under the Louisiana Private Works Act, La. R.S. 9:4801, et seq., against the owner and building contractor of a cold storage facility built on owner’s property. The owner filed a third party demand for damages against a bank which had been assigned the proceeds of the contract of a subcontractor, which had failed to pay the plaintiff. The bank applied the proceeds to indebtedness owed- the bank by the subcontractor. The trial court granted the bank’s exception of no cause of action relating to claims of indemnification, breach of contract and malfeasance, giving the owner thirty days to amend his petition to state a cause of action. When the owner failed to do so, the bank obtained a judgment of dismissal of the action with full prejudice. This appeal by the owner followed. We affirm.

Facts

Dawson Farms, LLC (“Dawson”) contracted with Dennis Boyte Construction (“Boyte”) for the construction of a cold storage facility on Dawson’s property. Boyte contracted with Steve Wooten Contracting, Inc. (“Wooten”) as concrete subcontractor for the project on January 12, 2004. By letter of January 16, 2004, Boyte was advised that Wooten had assigned the proceeds of the cold storage facility contract to First National Bank of Crossett (“FNBC”) and that checks for Wooten’s work on the project should be made payable to both Wooten and FNBC jointly. Boyte claimed to have tendered checks to both Wooten and FNBC for Wooten’s services.

| gWooten subcontracted with Century Ready Mix (“Century”) for concrete and related materials supplied to the project. Although FNBC negotiated the checks received from Boyte, FNBC used the funds as payment of Wooten’s unrelated debt, and Wooten failed to pay Century for the concrete and supplies. Century filed a statement for lien and privilege for labor and materials on May 24, 2004.

On April 25, 2005, Century instituted suit against Boyte and Dawson, seeking $87,111.72 owed for concrete and supplies and for recognition of the lien and privilege under the Private Works Act. Boyte and Dawson filed a reconventional demand for damages against Century. Dawson also filed a third party demand against FNBC seeking damages for acts of malfeasance, breach of contract, breach of fiduciary duty and indemnification. Significantly, in making these claims, there is no allegation by Dawson that it had any contact, negotiations or communications with FNBC regarding the checks FNBC received from Boyte.

In response to the claims of Dawson, FNBC filed an exception of no cause of action. After hearing argument on the exception and taking the matter under advisement, the trial court rendered written judgment sustaining the exception of no cause of action and granting Dawson thirty days to amend its third party demand to state a cause of action. No amendment to Dawson’s claim was made, and upon FNBC’s motion to dismiss, the trial court dismissed the action with prejudice on January 30, 2007.

[■¡Dawson now appeals the January 30, 2007 judgment of dismissal raising three arguments attempting to define a cause of action against FNBC. First, Dawson argues that it is entitled to indemnification from FNBC because FNBC subrogated itself to the rights and liabilities of Wooten by entering into an assignment agreement. Alternatively, Dawson asserts a claim for indemnity based on unjust enrichment. Dawson also argues that it was a third party beneficiary of the subcontract between Boyte and Wooten and that FNBC, as assignee of that contract, breached the contract benefits conferred to Dawson as third party beneficiary. Finally, Dawson urges that it has stated a cause of action for malfeasance based upon FNBC’s failure to pay Wooten’s supplier with sums allocated specifically for the cold storage project.

Discussion

I.

Before reaching Dawson’s arguments, the appellee FNBC seeks dismissal of the appeal. It claims that the language employed in the final judgment of dismissal indicates Dawson’s confession of judgment.

An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment. La. C.C.P. art.2085.

[¿The final dismissal of this action on January 30, 2007, resulted from a two-part procedural process which began with the October 19, 2006 judgment sustaining FNBC’s exception of no cause of action. In pertinent part that judgment reads as follows:

It is further hereby Ordered, Adjudged, and Decreed that the plaintiff has failed to plead a Cause of Action as to any remaining claims. The Court will grant the Third Party plaintiff thirty (30) days from the signing of this Judgment to amend to state a Cause of Action. Failure to do so will result in the dismissal of all remaining claims with full prejudice and at Third Party plaintiffs sole costs.

When no action to amend the pleadings by Dawson occurred, FNBC filed a motion to dismiss the action in accordance with Louisiana jurisprudence which has required the obtaining of a subsequent final judgment of dismissal when the earlier judgment sustaining the exception gave an allowance to plaintiff to amend under La. C.C.P. art. 934. See, Interstate Electric Co. v. Interstate Electric Co. of Shreveport, 6 So.2d 39 (La.App. 2d Cir.1942). See also, Wright v. Rustem Daily Leader, 612 So.2d 980 (La.App. 2d Cir.1993); Minnieweather v. Brumley, 602 So.2d 1062 (La.App. 2d Cir.1992); Spencer v. Burglass, 288 So.2d 68 (La.App. 4th Cir.1974).

The court signed a final judgment of dismissal on January 30, 2007, which stated:

This Court, having previously ruled on the FIRST NATIONAL BANK OF CROSSETT’s Exception of No Cause of Action, having received FIRST NATIONAL BANK OF CROSSETT’s Motion to Dismiss based upon DAWSON FARM’S failure to timely amend as ordered, and now having been informed herein that DAWSON FARMS has no opposition to the Motion to Dismiss, it is hereby ordered, adjudged and decreed that the third-party demands of DAWSON FARMS, in their entirety and against all parties, is |Rhereby dismissed with full prejudice and at DAWSON FARM’S sole cost.

FNBC urges that Dawson’s lack of objection to the judgment of dismissal operates as a confession of judgment which precludes this appeal. On the contrary, Dawson was not required to amend its demand and its acquiescence in, the judgment was nothing more than an agreement that, in the procedural posture of the case, dismissal was warranted. Dawson’s actions did not represent acquiescence in the court’s ruling on the merits of the exception of no cause of action. Thus, this argument is without merit.

II.

A “cause of action,” when used in the context of the peremptory exception of no cause of action, is the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993). A peremptory exception of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. Birdsong v. Hirsch Memorial Coliseum, 42,316 (La.App.2d Cir.8/22/07), 963 So.2d 1095; Hayes v. Gallagher Bassett Services, Inc., 41,579 (La.App.2d Cir.12/13/06), 945 So.2d 911, writ denied, 07-0085 (La.3/30/07), 953 So.2d. 73. The exception is triable on the face of the petition, each well-pled fact of which must be accepted as true. There is no requirement that the court accept as true any conclusions of law alleged in the petition. No evidence may be introduced to support or controvert the exception of no cause of action. La. C.C.P. art. 931; Wright v. Louisiana Power and Light, 06-1181 (La.3/9/07), 951 So.2d 1058; Birdsong, supra. | (¡The burden of demonstrating that the petition states a cause of action is upon the mover. Wright, supra. Appellate courts conduct a de novo review of a district court’s ruling sustaining an exception of no cause of action, because the exception raises a question of law and the district court’s decision should be based only on the sufficiency of the petition. The pertinent question is whether, in the light most favorable to the plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. Wright, supra. Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Badeaux v. Southwest Computer Bureau, Inc., 05-0612 (La.3/17/06), 929 So.2d 1211.

When an owner contracts for the improvement of an immovable with a contractor, the Louisiana Private Works Act grants laborers or employees of the contractor or subcontractor and “sellers”/suppliers of the improvement claims against the owner and the contractor to secure payment of the price of work performed and supplies for the improvement. La. R.S. 9:4802. The claims against the owner shall be secured by a privilege on the immovable upon which the work is performed. La. R.S. 9:4802(B). Those persons granted a claim and privilege by Section 4802 for work arising out of a general contract, notice of which has been filed, shall file a statement of their claims and privileges within 60 days after substantial completion or abandonment of the work. La. R.S. 9:4822; First Thrift and Loan, L.L.C. v. Griffin, 41,666 (La.App.2d Cir.3/14/07), 954 So.2d 269.

|7The Private Works Act creates a right against an owner in favor of a seller/supplier, even though the seller/supplier does not have a contractual relationship with the owner, by virtue of the worker filing a lien. However, until the seller/supplier or laborer files a claim under the Act, he never achieves the status of creditor. First Thrift and Loan, L.L.C. v. Griffin, supra.

One argument for an indemnification claim which Dawson attempts to construct is based upon an indemnity provision in the Private Works Act owed by a subcontractor to an owner of the construction site, La. R.S. 9:4802(F), and Dawson’s assertion that FNBC “stepped into the shoes” of the subcontractor, Wooten. Regardless of the operation of that right of indemnity under the Private Works Act, we find that nothing has been alleged by Dawson that makes FNBC a subcontractor of this construction project.

Dawson argues that an “assignment between [Wooten] and the bank” occurred. While the object of assignment is somewhat obscure in Dawson’s brief, the only allegations in its third party demand were that by letter, Boyte was advised that Wooten “had assigned the proceeds” of Wooten’s subcontract for the job to FNBC and that as a result, “Boyte was requested to make checks payable to” Wooten and FNBC. These allegations do not assert that FNBC was assigned the obligations of Wooten to perform its contract with Boyte. FNBC assumed no obligation of that contract which j Swas Wooten’s subcontractor’s agreement with the contractor. Boyte was only “requested” to make payment and had no alleged obligation to pay FNBC. Despite this mere “proceeds” request, Dawson argues that this caused FNBC to step into Wooten’s shoes and that FNBC “substituted itself to the rights and liability of the subcontractor.” We disagree. Wooten had a contract with Boyte. It had another with Century. There is no allegation that FNBC was assigned or assumed the obligations of any contract with either Boyte or Century for Wooten’s performance in this construction project.

Dawson next argues for indemnity on “equitable principles.” We interpret this argument as a claim for unjust enrichment or enrichment without cause. This alternative argument concedes that there was no contract between Dawson and FNBC. Therefore, the Civil Code’s Title Y of Book III, Obligations Arising Without Agreement, must be considered. In that title, Civil Code Article 2298 provides, in pertinent part, as follows:

A person who has been enriched without cause at the' expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

In this case, FNBC was a creditor of Wooten. Because of its cement supply contract, Century was also a creditor or obligee of Wooten. Both ]flwere ordinary creditors without any lawful cause for preference over Wooten’s asset which, in this case, was in the form of cash payment, the check from Boyte. The check was negotiated and the monetary asset of Wooten was applied to a just and due debt of FNBC. If Dawson’s argument is that FNBC was enriched by its receipt of payment on its debt, its enrichment might be viewed as having occurred at the expense of Century and not Dawson. Moreover, any enrichment of FNBC was not without cause in that FNBC received payment as the result of a valid juridical act, which was its loan to Wooten. Accordingly, we find no basis for indemnification to Dawson under La. C.C. art. 2298.

Dawson’s last argument is for a cause of action which Dawson labels as malfeasance. The early jurisprudence which Dawson cites reveals this as a tort claim with Civil Code Article 2315 at its root. Such malfeasance has generally been defined as “the doing of an act which is wholly wrongful or unlawful and which a person ought not to do at all.” Ellett v. Newland, 171 La. 1019, 132 So. 761 (1931). In another early case, malfeasance was said to be the unjust performance of some act which the party had no right, or which he had contracted not, to do. State ex rel. Jones v. Doucet, 203 La. 743, 14 So.2d 622 (1943).

We have found no jurisprudence addressing a “malfeasance” tort since the formulation of our modern tort theory under the duty-risk analysis. |inA threshold issue in any negligence action under the duty-risk analysis is whether the defendant owed the plaintiff a duty. Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762. Whether a duty is owed is a question of law. Peterson v. Gibraltar Sav. & Loan, 98-1601, 98-1609, (La.5/18/99), 733 So.2d 1198, 1204; Mundy v. Dep’t of Health & Human Resources, 620 So.2d 811, 813 (La.1993); Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289, 292 (La.1993). The “malfeasance” charge now made by Dawson addresses itself to the question of whether FNBC owed a duty to Dawson.

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. Posecai, supra. The court may consider various moral, social, and economic factors, including the fairness of imposing liability; the economic impact on the defendant and on similarly situated parties; the need for an incentive to prevent future harm; the nature of defendant’s activity; the potential for an unmanageable flow of litigation; the historical development of precedent; and the direction in which society and its institutions are evolving. Id.

From our discussion above regarding the status of FNBC and Century as ordinary creditors of Wooten, we have determined that FNBC’s receipt of payment from its debtor did nothing to unjustly enrich itself to the harm of Century or Dawson. We are cited no provision in the Private Works Act by Dawson that regulates FNBC’s conduct and imposes any legal duty that could be breached. Boyte had liability risks under the Private Works Act Inattendant to its duties as general contractor concerning the unpaid laborers and suppliers of its subcontractor. Yet, Boyte voluntarily paid Wooten through the requested arrangement with FNBC. The duties for the protection of Dawson regarding potential Private Works Act claims lay with other parties directly involved in the construction project and with Dawson itself, but not FNBC. Accordingly, we find no duty on FNBC to support a tort claim under these circumstances.

Conclusion

From our review of appellant’s arguments, we find no allegations of a cause of action against FNBC. The trial court’s dismissal of appellant’s claims against FNBC on the exception of no cause of action is affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.

      . La. R.S. 9:4802(F) provides as follows: A contractor shall indemnify the owner for claims against the owner arising from the work to be performed under the contract. A subcontractor shall indemnify the owner, the contractor, and any subcontractor from or through whom his rights are derived, for amounts paid by them for claims under this part arising from work performed by the subcontractor.

      . FNBC makes no assertion of a security interest in the proceeds of the contract or "payment intangible" under Louisiana's Uniform Commercial Code law and the notice to Boyte for the requested joint payment does not appear to be a notice pursuant to La. R.S. 10:9-406(a).

      . Since we find no allegation of the assignment of the obligations of the Boyte/Wooten subcontract, Dawson’s argument that FNBC violated the benefits conferred to Dawson, as third party beneficiary under the subcontract is likewise without merit.

      .Even with rights afforded by the revocatory action under La. C.C. art.2036, the competing creditor may not annul an obligor’s payment of a just and due debt to another creditor. La. C.C. art.2036, Revision Comments (h).

      . La. C.C. art. 2315 provides, in pertinent part:
      A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.


author: MOORE, J. BROWN, C.J.,

text:
    STATE of Louisiana, Appellee v. Standrius WHITE, Appellant.
    No. 42-725-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Louisiana Appellate Project, by Edward K. Bauman, Lake Charles, for Appellant.
    J. Schuyler Marvin, District Attorney, Charles Smith, Charles Jacobs, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before BROWN, MOORE and LOLLEY, JJ.
   MOORE, J.

_JjThe defendant, Standrius White, was convicted of two counts of armed robbery with a firearm. He was sentenced to 35 years at hard labor without the benefit of parole, probation or suspension of sentence on each count to run concurrently. The defendant now appeals. We affirm the defendant’s conviction. However, we vacate the defendant’s sentence and remand for resentencing.

FACTS

On the night of January 31, 2006, Dr. Wayne McMahen, a local veterinarian, and his daughter M.M. returned home from a ball game. M.M. went to bed, but Dr. McMahen decided to watch television. When his dog started barking, Dr. McMa-hen went to his back sliding glass door to let the dog out. When he opened the door, a masked individual armed with a handgun rushed inside and forced Dr. McMahen to the floor. According to Dr. McMahen, there were three masked individuals in all. While one held a gun to Dr. McMahen, the other intruders ransacked his home. Dr. McMahen was ordered to turn over his watch, wedding ring, and wallet which contained between $600 and $700. Meanwhile, one of the intruders entered M.M.’s room and demanded money. She complied with the intruder’s orders and gave him between $500 and $700. The intruders fled the home, taking Dr. McMahen’s truck. None of the masked intruders could be identified by the victims.

Based on information received after canvassing the streets, the Springhill Police arrested Alva Tealer. Tealer confessed to his involvement [ Jn the robbery and implicated Geoffrey Eason and the defendant. Eason left blood at the crime scene which was submitted for DNA analysis and served to make a positive identification.

In an amended bill of information, the defendant was charged with two counts of armed robbery with the use of a dangerous weapon, conspiracy to commit armed robbery, conspiracy to commit aggravated burglary, and aggravated burglary. After a jury trial, he was convicted of two counts of armed robbery with use of a firearm. He was sentenced to 35 years at hard labor on each count, without benefit of parole, probation, or suspension of sentence. Both sentences were ordered to be served concurrently. This appeal ensued.

DISCUSSION

Assignment of Error Number One (verbatim): The trial court erred as the evidence presented at trial, when viewed in a light most favorable to the prosecution, was insufficient to sustain a defendant’s convictions.

The defendant argues that there is no physical evidence linking him to the crime and that he was convicted solely on the testimony of Alva Téaler. He asserts that neither his DNA nor fingerprints were recovered from the McMahen home. Moreover, the defendant argues both victims testified that they could not identify any of the intruders. In the event that this court finds no error in the jury’s credibility determination, the defendant urges that this court should conclude that there was insufficient evidence to convict him of armed robbery in that the evidence casts doubt as to whether any intruder was armed with a weapon.

The state presented evidence consisting of the testimony of both |svictims, physical evidence and DNA analysis identifying co-defendant Geoffrey Eason as one of the perpetrators, and testimony from co-defendant Alva Tealer identifying Eason and the defendant as his accomplices. The state argues that the verdict indicated that the jury was convinced of the credibility of Alva Tealer and was instructed on how to apply the law of principals to multiple defendants in a crime.

When issues are raised on appeal both as to the sufficiency of the evidence and one or more trial errors, the reviewing court first reviews the sufficiency claim. This is because the defendant may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if the evidence is constitutionally insufficient. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2 Cir. 4/2/97), 691 So.2d 347, unit denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The standard for evaluating sufficiency of the evidence is whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find that the state proved all elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Washington, 597 So.2d 1084 (La.App. 2 Cir.1992). This standard was legislatively adopted in La. C. Cr. P. art 821 and applies to cases involving direct and circumstantial evidence. State v. Smith, 441 So.2d 739 (La.1983). When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be | ¿sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2 Cir. 9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. It is always the function of the trier of fact to assess credibility and resolve conflicting testimony. State v. Lee, 32,212 (La.App. 2 Cir. 8/18/99) 742 So.2d 651, unit denied, 99-2730 (La.3/17/00), 756 So.2d 326; State v. Thomas, 609 So.2d 1078 (La.App. 2 Cir. 1992), unit denied, 617 So.2d 905 (La. 1993).

This court’s authority to review questions of fact in a criminal case is limited to the sufficiency of the evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2 Cir.1984). A reviewing court accords great deference to a judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36, 118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, unit denied, 02-3090 (La.11/14/03), 858 So.2d 422.

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64; State v. Taylor, 422 So.2d 109 (La.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1803, 76 L.Ed.2d 367 (1983). Pursuant to La. R.S. 14:24, all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act | ^constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. Only those persons who knowingly participate in the planning or execution of a crime are principals. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427; State v. Tolliver, 35,930 (La.App. 2 Cir. 5/8/02), 818 So.2d 310. Mere presence at the scene is not enough to “concern” an individual in the commission of the offense. State v. Pierre, supra; State v. Knowles, 392 So.2d 651(La.1980). An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. State v. Pierre, supra; State v. Holmes, 388 So.2d 722 (La.1980).

Dr. McMahen testified that on the night in question, he arrived home from a ball game and checked in on his daughter, M.M., who was in her bedroom reading a book. After leaving her bedroom, he noticed his dog sitting near the sliding glass door and barking. Thinking that the dog wanted to go outside, Dr. McMahen cracked open the sliding door when he saw someone approaching with a pistol from the patio. He testified that when the individual rushed at him, he slammed the door and took off running. Because the door did not latch, the individual gained entry inside and ordered him to get on the floor. He testified that he was ordered to keep his head down and could not see the intruder’s face. He asked the intruder what he wanted, and the intruder responded that he was there for money. He also testified that the intruder was bleeding onto the floor. Dr. McMahen further testified that at some point, he realized that there were three intruders as they were walking around his house. He stated that the |fiintruders were all dressed in dark clothing and hoods and wore bandanas to cover their faces.

Dr. McMahen estimated that he was on the floor between 15 to 20 minutes. During that time, two of the intruders went to the back of the house searching for money. When the two intruders reappeared from the back of the house, they demanded more money. Dr. McMahen told them that he did not have any more money inside the house and requested that they take his two trucks located in his driveway. The keys to both of the trucks were inside the vehicles. A short time later, the intruders exited through the sliding door and escaped in one of his trucks. Besides his truck, his watch, wedding band, and wallet were also stolen.

M.M. also testified at trial. She stated that while she was in her room, she heard the dog scratching at the door and her dad opening the sliding door. She further testified that she heard people screaming for money and for her father to get down on the floor. .She stated that she could hear everything going on and remained in her room. She testified that she heard the intruders going from room to room, opening drawers and doors. She further testified that one of the intruders opened her door and peeped into her room. She stated that she asked him what he wanted, and he responded that he was there for money. She testified that she gave him between $500 and $700, and then he left the room.

M.M. testified that she could only see the intruder’s eyes because he wore a handkerchief around part of his face and a hood on his head. She also stated that she did not see a weapon on the intruder that entered her 17room. She testified that while she was still inside her room, she heard the door slam. Assuming that the intruders had left, she walked into the living room- and saw her father lying on the floor with three males standing nearby. She stated that two of the males had guns and all three had their faces covered.

Ronnie Coleman, chief of police for the city of Springhill, testified that he interviewed the victims and collected blood evidence at the scene. He also stated that based on information obtained from canvassing the streets, Alva Tealer began to emerge as a suspect in the case. Tealer was brought in for questioning wherein he confessed to the crime. Officer Coleman testified that he continued to look for the other parties involved in the incident, namely Geoffrey Eason and the defendant. Eason and the defendant were interviewed, and both parties denied any knowledge or involvement in the matter.

Officer Coleman also testified regarding a recorded conversation between Geoffrey Eason and the defendant. The conversation took place while Eason and the defendant were left alone in another officer’s patrol car. After the tape was authenticated, it was played for the jury. During the recording, someone is heard saying “remember when they slammed my hand in the door ... he don’t even know he slammed my hand .... they just know somebody got cut ...” Officer Ronnie Coleman testified that he was not certain if the person that made the statement on the tape was Eason or the defendant.

Pat Wojkiewicz, director of the North Louisiana Crime Laboratory, |Rtestified that a DNA analysis was performed on the blood found on the victim’s living room floor, and DNA profile that was developed was consistent with the DNA profile of Geoffrey Eason.

Alva Tealer pled guilty to armed robbery as a result of his participation in the incident at the McMahen residence and is presently serving a ten-year hard labor sentence. Tealer testified that on the night in question, Geoffrey Eason came to his house and asked him for a gun because he needed to find a quick money scheme. Tealer told Eason that he did not have a gun but agreed to go with Eason. Tealer testified that the defendant came upon the scene shortly thereafter and also agreed to participate in a robbery. Tealer testified that he went home to get his bandana and met up with Eason and the defendant later on. He stated that he was wearing all black, and that they all were wearing hooded sweatshirts. He further testified that Eason had a gun. He testified that they all walked to North Acres and chose the McMahen residence because the lights were off and they assumed no one was home. He stated that they entered the residence through a sliding door and Ea-son held Dr. McMahen at gunpoint. Teal-er testified that they escaped in Dr. McMahen’s truck. Tealer did not recall Eason being cut and bleeding. He also stated that he did not see the defendant with a gun.

The record contains sufficient evidence to support the defendant’s conviction in this case. The defendant was implicated by Tealer’s testimony and the tape recording. In the tape recording of Eason and the defendant, Eason can be heard saying “remember when they slammed my hand in the door ...” Based on that conversation, it was reasonable for the jury to 19conclude that the defendant was present during the commission of the crime.

Although it is unclear from the evidence whether the defendant actually held a firearm during the commission of the crime, the jury nonetheless concluded that he was guilty of the offense because he acted as a principal. The state may prove a defendant guilty of armed robbery by showing that he served as a principal to the crime. La. R.S. 14:24; State v. Durden, 36,842 (La.App. 2 Cir. 4/9/03), 842 So.2d 1244; State v. Allen, 36,180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622; State v. Smith, 513 So.2d 438 (La.App. 2 Cir.1987). Under this theory, the defendant need not actually take anything or have personally held a weapon to be guilty of armed robbery. Durden, supra; Allen, supra, citing, State v. Dominick, 354 So.2d 1316 (La.1978). A person who aids and abets another in a crime is liable just as the person who directly commits it, although he may be convicted of a higher or lower degree of the crime, depending upon the mental element proved at trial. Durden, supra; State v. Watson, 397 So.2d 1337 (La.1981), cert. denied, 454 U.S. 903, 102 S.Ct. 410, 70 L.Ed.2d 222 (1981). The jury in this instance concluded that the defendant knowingly participated in the planning and execution of an armed robbery with the use of a firearm. Thus, when the evidence is viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime of armed robbery with a firearm beyond a reasonable doubt.

This assignment is therefore without merit.

| mAssignment of Error Number Two (verbatim): The trial court erred in failing to recuse itself on the defendant’s Motion to Recuse, and the judge ad hoc erred in denying the motion.

The defendant argues that because the victim, Dr. Wayne McMahen, was a former neighbor and friend of the judge presiding over his trial, the judge ad hoc should have granted the defendant’s motion to recuse in order to prevent the appearance of impropriety. The defendant asserts that on a hearing on the motion to recuse, it was determined that the trial judge and the victims lived three houses apart in the town of Springhill, Louisiana, Dr. McMahen was the trial judge’s veterinarian for ten years, and that Dr. McMahen and the trial judge were good friends.

The state argues at a hearing on the motion to recuse the trial judge, the trial judge stated that the allegations made in the motion would not affect him in conducting the trial in a fair and impartial manner. The state further argues that the defense called no other witnesses nor presented any other reasons for recusal, and thus, failed to meet its burden of proving that the trial judge was biased or unable to conduct a fair and impartial trial in accordance with La. C. Cr. P. art 671.

La. C. Cr. P. art 671 provides, in pertinent part:

In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial; ....
(6) Would be unable, for any other reason, to conduct a fair and impartial trial.

A trial judge is presumed to be impartial, and the burden is on the | n defendant to prove otherwise. State v. Dooley, 38,763 (La.App. 2 Cir. 9/22/04), 882 So.2d 731, writ denied, 2004-2645 (La.2/18/05), 896 So.2d 30. In order to obtain a recusation based on bias, prejudice, and personal interest, the party seeking the recusation must establish grounds of a substantial nature based on more than conclusory allegations. State v. Chatman, 37,523 (La.App. 2 Cir. 9/24/03), 855 So.2d 875, writ denied, 2003-2821 (La.2/13/04), 867 So.2d 685. La. C. Cr. P. art. 671 does not require the recusal of a trial judge simply on the basis that the trial judge knew the victim’s family. State v. Parker, 96-1852 (La.App. 4 Cir. 6/18/97), 696 So.2d 599, writ denied, 1997-1953 (La.1/9/98), 705 So.2d 1097.

In State v. Gatti, 39,833 (La.App. 2 Cir. 10/13/05), 914 So.2d 74, writ denied, 2005-2394 (La.4/17/06), 926 So.2d 511, the court considered whether the trial judge’s recu-sal was required where a personal friendship existed between the judge and the victims. The court held that because there was no evidence that the judge’s personal friendship with the victims would have caused the court to reach any conclusion based on bias, prejudice or personal interest, recusal was not warranted. In the present case, Judge Robinson testified at the recusal hearing that while he lived in Springhill, he and Dr. McMahen developed a friendship that lasted between five to ten years. Moreover, he testified that they often frequented each other’s homes and socialized together. However, Judge Robinson stated that their contact ceased once he moved from Springhill to Bossier in December 2000. Based on Judge Robinson’s testimony, it does not appear [ 1P,that the defendant in the present case was entitled to the recusal of the trial judge because he failed to produce evidence that the trial judge’s prior relationship with the victim would result in bias or prejudice.

This assignment is therefore without merit.

Error Patent:

After review we note that the trial court did not specify what portion, if any, of the defendant’s 35-year hard labor sentence without benefits was imposed under La. R.S. 14:64.3, which adds a five year-sentence without benefits to be served consecutive to the sentence imposed for armed robbery when the dangerous weapon used was a firearm. By Act 208, 2006, which became effective on June 2, 2006, the legislature amended La. R.S. 14:64.3 adding the term “hard labor” to the sentencing clause of the statute. However, at the time the offense was committed in this case, January 31, 2006, La. R.S. 14:64.3 did not have the words “hard labor” in the sentencing clause. The law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 2001-3407, 820 So.2d 518 (La.6/21/02).

In State v. King, 2006-1903 (La.10/16/07), 969 So.2d 1228, 2007 WL 2994592, the trial court sentenced the defendant to 198 years at hard labor on a conviction of armed robbery as a second felony offender under La. R.S. 15:529.1 and then added a five-year sentence at hard labor under La. R.S. 14:64.3. (Emphasis ours). This court affirmed the conviction and 198-year sentence, but deleted the five-year consecutive | iasentence. The supreme court granted a writ and vacated our judgment deleting the five-year consecutive sentence, but it amended the additional five-year sentence at hard labor, noting that, at the time of the commission of the crime, La. R.S. 14:64.3 did not include the proviso “at hard labor.” Accordingly, it amended the sentence to reflect that 198 years were to be served at hard labor, followed by an additional five-year term to be served consecutively.

In this case, unlike State v. King, supra, the absence of a specification that the defendant’s sentences include a term or terms under La. R.S. 14:64.3 renders the defendant’s sentence indeterminate. State v. Birch, 41,979 (La.App. 2 Cir. 5/9/07), 956 So.2d 793; State v. Weaver, 38,322 (La. App. 2 Cir. 5/12/04), 873 So.2d 909; State v. Price, 04-812 (La.App. 5 Cir. 3/1/05), 909 So.2d 612. Therefore, we vacate the sentence and remand for resentencing according to law for clarification of whether the defendant’s sentence includes any additional punishment under La. R.S. 14:64.3.

CONCLUSION

For the foregoing reasons, the defendant’s convictions are affirmed. We vacate the sentence imposed and remand to the trial court for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

BROWN, C.J., concurs in part, dissents in part.

BROWN, C.J.,

concurring in part, dissenting in part.

hi agree that defendant’s convictions of two counts of armed robbery with use of a firearm should be affirmed; however, I disagree with vacating the sentences imposed and remanding for resentencing.

Defendant’s sentence was clearly imposed pursuant to La. R.S. 14:64.3. He was charged under La. R.S. 14:64.3 and was found guilty under the same statute. La. R.S. 14:64 defines the crime of armed robbery and provides a sentence of imprisonment at hard labor for not less than ten and not more than ninety-nine years without benefits. This statute was supplemented in 1999 by La. R.S. 14:64.3 to tack on an additional five years when the weapon used in the commission of armed robbery is a firearm. This additional five years is to be served consecutively and “shall be” imposed. Obviously, in the instant case the thirty-five year hard labor sentence would have included the mandatory additional five years, that is, thirty plus five. This is not an indeterminate sentence. I further note that the state neither questioned this sentence nor appealed this issue.

When the offenses in this case were committed, the statute read “When the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned for an additional period of five years without benefit of parole, probation, or suspension of sentence.” The five years imprisonment provided for in La. R.S. 14:64.3 was a mandatory addition to the armed robbery sentence. As such, it would logically follow that it would be at hard labor. However, State v. King, supra, decided by the Louisiana Supreme Court on October 16, 2007, appears to indicate that King’s two 30-year sentences running concurrently would be served at hard labor in DOC (La. R.S. 15:824 C) and then the two additional consecutive five-year sentences would be served locally in custody of the sheriff (La. R.S. 15:565) — an incongruous result.

      . The initials of the victims are used because of confidentiality requirements applicable to the instant case under La. R.S. 46:1844(W).

      . State v. King, 41,083 (La.App. 2 Cir. 6/28/06),935 So.2d 354, writ granted, 2006-1903 (La.4/27/07), 955 So.2d 670.