author: JAMES F. McKAY, III, Judge.

text:
    STATE of Louisiana v. Leo BATISTE.
    No. 2006-KA-0875.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 20, 2006.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Graham L. Bosworth, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, Louisiana, for De-fendanVAppellant.
    Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, Sr., Judge TERRI F. LOVE.
   JAMES F. McKAY, III, Judge.

| STATEMENT OF CASE

On September 1, 2004, the State charged the appellant Leo Batiste with the manslaughter of Alfred Smith. At his arraignment on September 7, 2004, he pled not guilty. The court heard and denied his motions to suppress the evidence and statement on November 3, 2004. On January 5, 2005, a twelve-person jury found Batiste guilty as charged. The court ordered a presentence investigation report. On May 6, 2005, the court sentenced Batiste to serve twenty years at hard labor. The next day the court granted his motion for appeal.

FACTS

On July 3, 2004, Leon Batiste shot and killed Alfred Smith, Sr. in the 2600 block of Danneel Street. Officers responding to the call of the shooting found Smith lying facedown on the ground in front of a table set with dominos. An autopsy revealed that Smith died of a single gunshot wound from a bullet that entered his chest under his left arm, passed through his heart and lung, and lodged in his spine. The pathologist who conducted the autopsy testified that a muzzle imprint on the skin under Smith’s arm indicated that Smith received a direct-contact wound. Smith also had a blood alcohol level of .11%, but his fluids were ^negative for street drugs. The pathologist also testified that the wound was consistent with a right-handed person shooting the victim in close proximity while facing him; he also stated that he could not tell if the victim and the shooter were standing or lying down when the victim was shot.

Officer Kristian Fricke testified that he and his partner Travis Ward responded to the 911 call of the shooting, which was played to the jury. Officer Fricke stated that there had been many domino games in the area where the shooting occurred, but there had been no problems with the games in the past. He testified that when he and his partner arrived, there were a few people on the scene who directed him to a blue Ford pickup truck, where he discovered the defendant Leon Batiste. Officer Fricke stated that he and his partner opened the door of the truck and ordered Batiste to exit. He testified his partner then saw a gun sitting in the center console of the truck. The officers handcuffed Batiste and read him his rights. Batiste stated that he shot the victim over a $20 dominos bet. Officer Fricke testified that they found a $20 bill on the back of the driver’s seat. Officer Fricke described Batiste’s demeanor as calm, and he was attached to a oxygen canister that was sitting on the passenger seat of the car.

Officer Ward’s testimony basically tracked that of Officer Fricke. He testified that the gun found inside Batiste’s truck had bloodstains on it, and he seized the gun. The gun contained four live rounds, and there was a spent casing on the ground.

Detective Christian Varnado testified that he investigated the shooting. He stated that he found the victim lying on the ground in front of 2613 Danneel Street. He testified that he directed the responding officers to take Batiste to the police station, where Batiste gave a statement. Detective Varnado testified that witnesses Uon the scene told him that Batiste and Smith had argued over a $20 bet on a dominos game that neither of them won. The witnesses told Detective Varna-do that Smith told Batiste to go to his truck to get his “s* * *,” meaning his gun, and after Batiste had done so, he came back to the dominos table. Witnesses told him that Smith and Batiste argued some more, and Smith grabbed Batiste in a bear hug. The men scuffled, and then Batiste shot Smith. Detective Varnado testified that he found $4 lying on the ground next to Smith’s hand. Detective Varnado also testified that John Curtis identified Batiste as the man who shot Smith.

The State played Batiste’s statement, in which he indicated that he was playing dominos with Smith and a few other people just prior to the shooting. Batiste stated that he and Smith had a $10 side bet that Batiste was not going to let Smith win the game. Neither of them won the game, however, and Batiste considered the bet void. He stated that Smith then wanted his money because Batiste lost the game. Instead, Batiste stated, he went toward his truck. At that point, Smith said, “Go get your s* * * ”. Do what you got to do.” Batiste indicated that Smith had become enraged during prior games, kicking over the dominos table, slapping people, and pulling a knife. Batiste stated that he was too old to be fighting, so he got his gun and walked back to the table where the $20 bill was still lying. Batiste stated that Smith told him there was the money and to take it. When Batiste reached over to pick up the money, Smith grabbed him, and the two men fell to the ground. Batiste admitted that he got his hand loose and pulled the trigger, but nothing happened. He stated that he pulled the trigger again, and the gun fired, hitting Smith. Batiste stated that the gunshot surprised him, and he insisted that he did not want to kill Smith, but he was merely trying to protect himself from a man whom he knew carried a knife. Smith pointed out that the 14police found a knife in Smith’s pocket. He insisted that he “believed at that moment, it was kill or be killed.”

After Batiste’s statement was read, Detective Varnado confirmed that a box-cutter type knife was found closed in Smith’s pocket. He also testified that Batiste told him on the day of the shooting that Smith drew a knife on him.

The firearms examiner testified that the bullet found in Smith’s body was fired from the gun found in Batiste’s truck.

Andrew Dunbar testified that he was playing dominos with Batiste, Smith, and John Curtis on the day of the shooting. He testified that although normal bets were $3, Smith and Batiste had a $10 side bet as to whether Smith would win. Neither Smith nor Batiste won the game, and Batiste said that he quit playing. Dunbar testified that as Batiste reached for his money, he and Smith argued. Although Dunbar first testified that Batiste went to his truck, got a gun, and came back, he later stated that he did not see Batiste go to his truck because he (Dunbar) turned and began walking away. Dunbar stated that he heard a shot, looked around, and saw the two men struggling on the ground. He stated that he heard Smith say that he was “dead,” and then Dunbar walked around the corner to get a drink. Dunbar identified a photograph of the scene that showed the dominos table set up outside his house. He admitted he was an alcoholic and had a prior conviction for illegally-carrying a weapon. He insisted he was sober that day, but he admitted he had consumed a few beers. He denied that any fights occurred over dominos games in the past, and he did not see Smith with a knife that day, although he had seen him with a different knife in the past.

John Curtis testified that he was playing dominos with Smith, Batiste, and Dunbar just prior to the murder. He testified that Batiste had put up a $20 bill for [fithe side bet and had taken Smith’s $10 bill for change. Curtis testified that he won the game. He stated that Smith and Batiste argued about who won their side bet, and Batiste indicated he wanted to stop playing. Smith insisted that he could not do so. The men argued, and then Smith picked up the $20 bill. Curtis stated that when Batiste went to his truck, he thought Batiste was going to get money to pay Smith. Curtis indicated that Dunbar paid him for the game and walked off, and Smith had $3 in his hand to pay him for the game. Curtis testified that Batiste returned with a gun, and he told Batiste that the money from the side bet was on the table, where Smith was still seated. Curtis testified that Batiste got close to Smith, and Smith asked him if he was going to shoot him over a $10 bet. Curtis stated that Smith then “broke at him to grab” the gun. The men wrestled and fell to the ground. Curtis testified that as Smith rolled over, Batiste put the gun to Smith and fired. Curtis testified that Smith then stated, “Now, you done killed me” and dropped his head.

Curtis testified that Batiste then got up, took the $20 bill from the table, walked back to his truck, and started it. Curtis stated that he told Batiste he had to wait for the police to arrive to explain what happened. Curtis testified that Batiste thought about it for a little while and then agreed and turned off the truck’s engine. Curtis also testified that Batiste could not leave because Smith was lying on the ground in front of him and Curtis was standing behind the truck.

Curtis admitted that the men sometimes argued over the dominos games, but he characterized this arguing as “messing” with each other. He stated that he had seen Smith with a knife before when Smith cut up a watermelon, but that knife was not the box cutter found in Smith’s pocket. He testified that he had also heard about Smith getting in arguments in the past and overturning the dominos table, | fibut these events did not take place in his presence. He denied telling the police that the men were standing when the gun went off; he explained that he said they were facing each other.

Curtis stated that Batiste did not threaten him during the incident. Curtis admitted he had prior convictions in the 1960’s and 1970’s for theft, simple burglary, illegally carrying a weapon, contributing to a delinquency of a minor, and possession of heroin, as well as a 2002 guilty plea for distribution of marijuana for which he still had a few days of probation to serve. He denied making any deals with the State for his testimony.

The defense played the tape of the statement Curtis gave to the police. In this statement, the officer taking the statement noted that the shooting took place at approximately 4:20 p.m. Curtis stated that Batiste and Smith each bet $10 that he would win, and when neither one won, Smith picked up the $20 total bet because Batiste did not win. Batiste replied that Smith did not win either and indicated he wanted to quit playing. According to Curtis’ statement, Smith told Batiste he could not quit and picked up the $20. Batiste asked if Smith was going to take his $10, and Smith replied, “No, you quit.” Curtis stated that Batiste then went to his truck and came back with a gun. Batiste asked again if Smith was going to take his $10, and Smith replied that Batiste’s $10 was “on the board.” Curtis stated that Smith pushed his chair back from the table and grabbed Batiste in a bear hug. Curtis stated that Batiste raised his gun, put it to Smith’s chest, and fired. Curtis stated that Batiste and Smith were standing face-to-face, just like they were dancing, when the gun fired.

17DISCUSSION

A review of the record reveals no patent errors.

ASSIGNMENTS OF ERROR

By his first assignment of error, the appellant contends that there was insufficient evidence to support his conviction for manslaughter. He maintains that the State failed to negate his self-defense claim.

In State v. Brown, 2003-0897 (La.4/12/05), p. 22, 907 So.2d 1, 18, the Court set forth the standard for determining a claim of insufficiency of evidence:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984)).

See also State v. Sykes, 2004-1199 (La.App. 4 Cir. 3/9/05), 900 So.2d 156.

The appellant was charged with and convicted of manslaughter. La. R.S. 14:31 defines manslaughter in part as:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed.

The statute further provides: “Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that | san average person’s blood would have cooled, at the time the offense was committed ...” See State v. Collor, 99-0175 (La.App. 4 Cir. 4/26/00), 762 So.2d 96. “Sudden passion” and “heat of blood” are not separate elements of the offense but are mitigating factors, which the defendant must establish by a preponderance of the evidence. State v. Jones, 2001-0630 (La.App. 4 Cir. 3/20/02), 814 So.2d 623; State v. McClain, 95-2546 (La.App. 4 Cir. 12/11/96), 685 So.2d 590. As noted by this Court in Collor:

Thus, in reviewing defendant’s claim that the evidence supports a manslaughter verdict, this Court must determine whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigating factors were not established by a preponderance of the evidence. State v. Sanders, 93-0001, p. 18-19 (La.11/30/94), 648 So.2d 1272, 1287, cert. denied 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194 (1996).

State v. Collor, 99-0175 at p. 11, 762 So.2d at 103.

Here, the appellant shot and killed the victim during a dispute over a bet in a dominos game; these facts would support a finding of manslaughter. He argues, however, that his conviction cannot stand because the evidence did not exclude his claim that he killed the victim in self-defense. This Court discussed self-defense in State v. McClain, 95-2546 at pp. 8-9, 685 So.2d at 594:

A homicide is justifiable if committed by one in defense of himself when he reasonably believes that he is in imminent danger of being killed or receiving great bodily harm and that the homicide is necessary to save himself from that danger. La. R.S. 14:20(1). When a defendant claims self-defense, the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. State v. Lynch, 436 So.2d 567 (La.1983); State v. Brumfield, 93-2404 (La.App. 4th Cir.6/15/94), 639 So.2d 312. Regarding self-defense, it is necessary to' consider whether the defendant had a reasonable belief that he was in imminent danger of losing his life or receiving great bodily harm and whether | flthe killing was necessary, under the circumstances, to save the defendant from that danger. State v. Dozier, 553 So.2d 911 (La.App. 4th Cir.1989), writ denied 558 So.2d 568 (La.1990). Although there is no unqualified duty to retreat, the possibility of escape is a factor in determining whether or not the defendant had a reasonable belief that deadly force was necessary to avoid the danger. Id.

See also State v. Jones, supra; State v. Gibson, 99-0946 (La.App. 4 Cir. 5/3/00), 761 So.2d 670.

In State v. Jones, the defendant was convicted of manslaughter and attempted manslaughter. The defendant and the deceased victim fought at a party, and the victim went home. He soon returned to the area, however, and raised his hands to the defendant as if to1 fight him again. The defendant shot the victim in the stomach and then ran after him, firing again as the victim tried to get away. A second victim, who appeared on the scene to try to head off the confrontation, grabbed at the gun while the defendant was running past him, and the defendant shot the second victim, who survived the attack. On appeal, the defendant argued that the State did not negate his self-defense claim, noting that the victims were intoxicated, that the deceased victim had physically fought with the defendant prior to the shooting, that the victim was much bigger than the defendant, and that the victim had threatened the defendant. This Court rejected this claim, noting that the jury apparently did not believe the defendant’s claim that he fired at the victims in self-defense. This Court also noted that the defendant did not leave the area of the initial fight, but instead armed himself. In addition, this Court noted that the defendant repeatedly fired at the first victim, who was trying to run away from him after being shot in the stomach, and the defendant shot the second victim, who had not been involved in the initial altercation.

|inThis- Court also rejected self-defense challenges in State v. Ventry, 99-0302 (La.App. 4 Cir. 6/14/00), 765 So.2d 1129; State v. Gibson, supra; and State v. Byes, 97-1876 (La.App. 4 Cir. 4/21/99), 735 So.2d 758. In State v. Ventry, the defendant shot the victim in a bar while they were fighting. This Court discounted the defendant’s self-defense claim that he shot the victim as the victim was approaching him, noting that the victim was shot in the back. In State v. Gibson, the defendant claimed that she stabbed the victim while he was trying to choke her during an argument. On appeal of her conviction for manslaughter, this Court found that the jury could have found that the State negated the defendant’s self-defense claim, noting that various family members of the victim who were in the house at the time of the stabbing testified that they did not hear an argument. In addition, the defendant initially told family members that she did not know why she. stabbed the victim, and her statements were unclear as to whether the victim was choking her at the time she stabbed him repeatedly. In State v. Byes, the defendant first stated that he was in the car with the victim and another man when the other man shot the victim for refusing to pay for drugs. In his second statement, he admitted he shot the victim, but he insisted that the victim pulled the gun, and the gun fired as they were struggling over it. This Court rejected his self-defense claim, noting that two of the gunshots hit the victim in the back, and a witness testified that the defendant continued firing even after he had exited the car.

In State v. Osborne, 2000-0345 (La.App. 4 Cir. 12/6/00), 775 So.2d 607, the victim was harassing the defendant’s female friend, and when the defendant sought to intervene, the victim threatened him and hit him, knocking him to the ground. Others on the scene broke up the fight. At some point the victim walked Into a nearby store, and when he returned he began threatening the woman again. The defendant went to a nearby vacant lot where he kept a gun. The defendant loaded the gun, returned, and shot the victim twice, the second time because he was not sure if the first shot hit the victim. The defendant was seventy-two years old at the time of the offense, while the victim was much younger, much larger, and known for being violent. This Court rejected his self-defense claim on appeal, noting that while the evidence showed that the younger and larger victim physically and verbally assaulted the defendant, the defendant did not leave the area but instead armed himself and shot the victim twice.

Here, the appellant argues that he was in his seventies at the time of the crime, and the victim was much younger and stronger than he was. He points to the fact that he knew the victim carried a knife and had acted aggressively during prior dominos games, overturning tables and hitting people. He notes that he armed himself at the victim’s suggestion, and he did not raise the gun until the victim grabbed him. Fearing for his life, he fired one time.

The appellant contends that he cannot be seen to have been the aggressor in this case because the victim started the fight and did not want him to quit playing or to give him his money. However, the fact remains that the appellant was free to leave the scene, although ten dollars poorer. He could have ignored the victim’s suggestion that he get his gun, but instead he chose to arm himself and return to the presence of the man whom he claims he feared. Indeed, only the appellant mentioned that the victim told the appellant to get his gun; neither Dunbar nor Curtis, the men on the scene at the time of the shooting, testified that they heard the victim make this statement. Contrary to the appellant’s assertions, he was free to leave, to remove himself from any harm he might have feared from the victim. 112Instead, he armed himself and went back to the victim, eventually shooting the victim when the victim grabbed him.

The cases cited by the appellant do not support his claim. In State v. Price, 93-1472 (La.App. 4 Cir. 4/14/94), 635 So.2d 1298, the defendant claimed he stabbed the victim in self-defense after the victim threatened to kill him “the next time” and threw a beer at the defendant as the defendant turned to walk away. The defendant testified that he took the knife away from the victim in the ensuring fight and stabbed him. This court rejected the defendant’s self-defense claim, noting that the other witnesses testified that the defendant had a knife before the fight started and that the victim had no knife, and this Court further noted that the victim sustained multiple knife wounds, two of which were mortal wounds and one of which was in the victim’s back.

In State v. Moore, 568 So.2d 612 (La.App. 4 Cir.1990), the defendant claimed she shot her husband in self-defense. The pair had separated, with the victim moving his possessions out of the apartment they shared. The victim returned to the apartment to get some things he said he had left behind, but the victim refused to allow him to enter, believing that he had already taken all of his possessions. The victim cut the cable line and then attempted to get inside the door. The victim shot through the door, striking and killing the victim. The defendant alleged that she shot only to scare him away and that she was afraid for her safety because he had beaten her in the past. The victim’s aunt, however, testified that shortly before the shooting the defendant said she was going to kill the victim. This Court rejected the defendant’s self-defense claim and upheld her manslaughter conviction, finding that the locked door between the defendant and the victim kept her from having a reasonable fear of imminent danger.

In State v. Green, 505 So.2d 265 (La.App. 3 Cir.1987), the defendant confessed to stabbing the victim, but he insisted he did so in self-defense. The defendant and the victim spent a number of hours together drinking and smoking marijuana. The defendant contended that he and the victim got into an argument over drugs, and the victim pulled a knife and tried to stab him. Instead, he got the knife away from the victim and stabbed him as he tried to flee the vehicle in which they were sitting. On appeal, the court found that the evidence negated his self-defense claim. The autopsy showed that the victim was stabbed multiple times and had a great deal of both alcohol and marijuana in his system at the time of his death. Although the defendant claimed his injured foot would have precluded his being able to overpower the victim, the evidence showed that the defendant was able to move the victim’s body several times, finally throwing it over a bridge into a bayou in order to conceal it.

In State v. Ruff, 504 So.2d 72 (La.App. 2 Cir.1987), and State v. Dill, 461 So.2d 1130 (La.App. 5 Cir.1984), the courts rejected the self-defense claim. In State v. Ruff, the defendant argued with his estranged wife’s male friend (the victim) in a bar, and the victim then suggested that they take the matter outside. The two met in the parking lot, and as the victim was walking toward the defendant, the defendant shot him in the leg. The victim kept approaching, and the defendant repeatedly shot the victim again. Although the defendant was smaller than the victim and had health concerns, the court found that the defendant did not need to use deadly force because he could have escaped any physical danger.

In State v. Dill, the victim and his friend were in a parking lot where they could not start their car. The victim walked to the defendant’s car parked nearby and tried to negotiate a jump, but apparently the defendant and his friends tried to |ucharge the victim money for their help. Several witnesses testified that the victim began arguing with the occupants of the defendant’s car, and at one point the victim started walking over to the driver’s door. The victim’s friend testified that the defendant then opened his car door, reached between the seats, got a gun, exited the car, and shot the victim. The defendant and other defense witnesses testified that the victim pulled a knife on the defendant and tried to stab at him through the car’s window. The jury convicted the defendant of manslaughter, and on appeal he reiterated his self-defense claim. The court rejected this claim, noting that the fact finder must have believed the State’s witness rather than the defense witnesses. The court agreed that the victim was larger than the defendant and that they had argued, but the court noted that the defendant could have avoided the killing by simply driving away from the victim. The court held that the defendant’s fear of the victim did not justify the use of deadly force by shooting the victim in the head.

By contrast, the courts reversed the defendant’s convictions in State v. Williams, 483 So.2d 999 (La.1986) and State v. Carroll, 542 So.2d 762 (La.App. 4 Cir.1989). In State v. Williams, the victim had severely beaten the defendant a few days before the shooting and had threatened to kill him. The defendant was at his mother-in-law’s house when he saw the victim drive up. The defendant left through a back door to try to avoid the victim, but the victim saw him outside, and the defendant shot the victim. The police found a rifle on the ground under the victim’s body. The defendant admitted he shot the victim, but he insisted that he only did so because he saw what appeared to be the barrel of a gun in the victim’s hands. The defendant was convicted of manslaughter, but the Court reversed his conviction, finding that the defendant shot the victim in self-defense. The Court hsnoted that there was no indication that the defendant provoked the victim, there was no evidence that he was the aggressor, and there was evidence that the defendant was trying to avoid the victim when the victim confronted him with a gun.

In State v. Carroll, the defendant shot the victim in a barroom. The victim, much larger than the defendant, had argued with the defendant earlier that day. Although one witness testified that the victim’s arms were down at the time the defendant shot him, other witnesses corroborated the defendant’s statement and his testimony that the victim came at the defendant with a barstool just before the defendant shot the victim. In addition, the bullet entered the victim under his arm, an impossibility if the victim was merely standing before the defendant with his arms down. This court reversed the defendant’s manslaughter conviction, finding that the State failed to show that the shooting was not in self-defense.

Here, unlike in State v. Williams, the defendant was not trying to avoid the victim when he shot him; instead, he armed himself and went back to the table to confront the victim. The victim was younger and larger than the defendant, but the defendant could have avoided the shooting by merely getting in his truck and driving away. As such, the evidence does not show that the defendant was justified in using deadly force to avoid being physically harmed. The State presented sufficient evidence to counter his self-defense claim beyond a reasonable doubt, and the jury did not err by convicting him of manslaughter. This assignment is without merit.

By his second assignment of error, the appellant contends that the trial court imposed an excessive sentence. The court imposed a twenty-year sentence, one|1fihalf the maximum sentence it could have imposed for the appellant’s manslaughter conviction. See La. R.S. 14:31.

It is not clear, however, that this claim has been preserved for appeal. There was no objection to the sentence when it was imposed; the only “objection” was actually made by the trial court, which when after imposing sentence, stated: “The objection is noted for the record to protect the record on behalf of the defendant.” There is no indication in the record that the appellant filed a motion to reconsider the sentence as required by La.C.Cr.P. art. 881.1, which mandates that a defendant must file a motion to reconsider sentence within thirty days of sentencing in order to preserve for appeal any claim as to sentencing. This Court has held that the failure to file a motion to reconsider sentence or to object to the sentence at the time it is imposed precludes a defendant from raising a claim about his sentence on appeal. State v. Rodriguez, 2000-0519 (La.App. 4 Cir. 2/14/01), 781 So.2d 640; State v. Tyler, 98-1667 (La.App. 4 Cir. 11/24/99), 749 So.2d 767.

Appellate counsel acknowledges former counsel’s failure to object or file a motion to reconsider sentence and argues that the failure to do so constituted ineffective-assistance of counsel. In State v. Mims, 97-1500 pp. 44-45 (La.App. 4 Cir. 6/21/00), 769 So.2d 44, 72, this Court discussed the standard to be used to evaluate an effective assistance of counsel claim:

The defendant’s claim of ineffective assistance of counsel is to be assessed by the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See State v. Fuller, 454 So.2d 119 (La.1984). The defendant must show that his counsel’s performance was deficient and that this deficiency prejudiced him. The defendant must make both showings to prove counsel was so ineffective as to require reversal. State v. Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992). Counsel’s performance is not ineffective unless it can be shown that he or she made | ^errors so serious that- he or she was not functioning as the “counsel” guaranteed to the defendant by the 6th Amendment of the federal constitution. Strickland, supra, at 686, 104 S.Ct. at 2064. That is, counsel’s deficient performance will only be considered to have prejudiced the defendant if the defendant shows that the errors were so serious that he was deprived of a fair trial. To carry his burden, the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 693, 104 S.Ct. at 2068.

See also State v. Crawford, 2002-2048 (La.App. 4 Cir. 2/12/03), 848 So.2d 615.

Here, the appellant argues that counsel was ineffective for failing to object to the sentence or to file a motion to reconsider the sentence. In the absence of the objection or the motion, the appellant cannot raise his excessive sentence claim, and the defendant can show prejudice only by proving that he would have been entitled to relief had counsel taken steps to preserve the issue on appeal. Thus, in order to determine if the ineffective assistance of counsel claim has merit, we must look to see if the appellant’s excessive sentence claim has merit.

In State v. Smith, 2001-2574, p. 7 (La.1/14/03), 839 So.2d 1, 4, the Court set forth the standard for evaluating a claim of excessive sentence:

Louisiana Constitution of 1974, art. I, § 20 provides, in pertinent part, that “[n]o law shall subject any person to - excessive - punishment.” (Emphasis added.) Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985). On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips, 02-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.

See also State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Baxley, 94-2982 (La.5/22/96), 656 So.2d 973; State v. Landry, 2003-1671 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235.

An appellate court reviewing a claim of excessive sentence must determine whether the trial court adequately complied with the statutory guidelines in La.C.Cr.P. art. 894.1, as well as whether the facts of the case warrant the sentence imposed. State v. Landry, supra; State v. Trepagnier, 97-2427 (La.App. 4 Cir. 9/15/99), 744 So.2d 181. However, as noted in State v. Major, 96-1214, p. 10 (La.App. 4 Cir. 3/4/98), 708 So.2d 813:

The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, resentencing is unnecessary even when there has not been full compliance with Art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).

If the reviewing court finds adequate compliance with art. 894.1, it must then determine whether the sentence the trial court imposed is too severe in light of the particular defendant as well as the circumstances of the case, “keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” State v. Landry, 2003-1671 at p. 8, 871 So.2d at 1239. See also State v. Bonicard, 98-0665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184.

Here, the trial court more than adequately complied with La. C.Cr.P. art. 894.1 in that its reasons for sentence are several pages long. The court noted that it had reviewed the presentence investigation report. The court stated that it was aware of the appellant’s age, but it was also aware that the deceased had a young child. The court stated that the fight resulting in the victim’s death arose from “trash talking” that ultimately provoked the shooting. Nonetheless, the court noted that the altercation resulted in the death of one person. The court stated that if the appellant had not armed himself, he would not be standing before the court convicted of shooting someone. The court reiterated that it |1flhad taken into consideration the appellant’s age and physical condition, but the court believed that the sentence of twenty years was warranted even though the appellant was a first offender. Thus, although the trial court did not enumerate the art. 894.1 factors, the record shows the basis for the court’s sentence.

In addition, the appellant’s sentence does not appear to be excessive as compared to the sentences imposed and upheld in other manslaughter cases. This court has upheld maximum forty-year sentences in cases where the killing arose from an argument. In State v. Jones, supra, the defendant shot the deceased and another man after the defendant and the deceased had fought and then separated, and the deceased returned to resume the fight. In State v. Bell, 2002-2349 (La.App. 4 Cir. 8/6/03), 854 So.2d 429, the defendant stabbed and strangled her lover during a quarrel. In State v. Williams, 99-2355 (La.App. 4 Cir. 12/13/00), 776 So.2d 604, the defendant and the victim argued, the defendant left and came back with a gun, and the defendant then shot the victim repeatedly. In State v. Ross, 98-0283 (La.App. 4 Cir. 9/8/99), 743 So.2d 757, the defendant had earlier stalked his ex-girlfriend and the victim, her new boyfriend. The defendant threatened the ex-girlfriend, followed her to the victim’s house, and then shot the victim as he was sitting in his car. In State v. Sarkozy, 99-0386 (La.App. 4 Cir. 1/26/00), 755 So.2d 345, the defendant beat the victim to death in a fight over money. In State v. Gibson, supra, the victim armed herself with a knife during an alleged argument with her husband and stabbed him to death. The court imposed a forty-year sentence but then suspended thirty of those years. In State v, Stark, 98-0668 (La.App. 4 Cir. 5/26/99), 736 So.2d 331, the defendant argued with a woman, saw her at a stop sign later that day, got out, and shot her to death. The defendant had many prior convictions.

This Court has also upheld longer sentences for manslaughter than that imposed on the appellant. In State v. Jefferson, 2002-1159 (La.App. 4 Cir. 12/4/02), 834 So.2d 572, this Court upheld the defendant’s twenty-five-year sentence. The defendant and the victim argued, and then the defendant shot the victim and another man, also taking their money. This Court noted that the argument would not have escalated to a killing if the defendant had not had a gun in his possession. In State v. Barrois, 2000-1425 (La.App. 4 Cir. 1/31/01), 778 So.2d 1273, the defendant beat and strangled his girlfriend. This court affirmed his sentence of twenty-five years. In State v. Pleasant, 99-2349 (La.App. 4 Cir. 11/8/00), 772 So.2d 910, the defendant and the victim argued; each left the area; when they returned, the defendant shot the victim in the back. This Court affirmed the defendant’s thirty-year sentence. This Court also affirmed the defendant’s thirty-year sentence in State v. Major, supra, where the defendant shot the victim who was sitting in his car after an altercation outside a bar.

In State v. Bowman, 95-0667 (La.App. 4 Cir. 7/10/96), 677 So.2d 1094, the defendant was with a group of people who shot the victim. Although the defendant was not the triggerman, the court found him to be a principal to the crime and sentenced him to serve thirty-three years. This Court upheld the sentence despite l^the facts that the defendant was a first offender and was only sixteen at the time of the shooting. The defendant in State v. Fountain, 93-2561 (La.App. 4 Cir. 12/15/94), 647 So.2d 1254 shot the victim in a fight over drugs. This Court upheld his twenty-one-year sentence, the maximum sentence allowed at the time of the offense. In State v. Taylor, 91-2496 (La.App. 4 Cir. 3/29/94), 635 So.2d 416, the defendant and the victim had fought several times in the past. The defendant and his companion happened upon the victim, who grabbed the companion. The companion was able to break away, and the defendant shot the victim in the leg, then shot him four more times. This Court upheld the defendant’s twenty-one year sentence. In State v. Page, 587 So.2d 170 (La.App. 4 Cir.1991), the defendant and the victim fought outside, and the victim then went inside his house to clean up. The victim armed himself with a broken bottle, entered the house, and stabbed the victim. Although the defendant was only seventeen at the time of the offense, this court upheld his twenty-one-year sentence. Likewise, this Court upheld a twenty-one-year sentence in State v. Berryhill, 562 So.2d 1105 (La.App. 4 Cir.1990), imposed on the defendant who shot his ex-girlfriend’s new boyfriend as the victim, the ex-girlfriend, and the ex-girlfriend’s baby were sitting in the victim’s car.

In State v. McBride, 99-2904 (La.App. 4 Cir. 11/29/00), 776 So.2d 546, this Court found that a thirty-year sentence was excessive for a defendant who threatened the victim, left the bar where they had argued, and came back armed. The defendant and the victim argued again, and the defendant pulled his gun and shot the victim. This Court vacated the sentence, reducing it to fifteen years. However, the Supreme Court reversed this court’s ruling and reinstated the thirty-year sentence. State v. McBride, 2001-0588 (La.2/8/02), 807 So.2d 836.

| g?This Court also upheld similar or slightly less sentences than that imposed on the. defendant. In State v. Osborne, supra, the seventy-two-year-old defendant attempted to stop a fight between the victim and the defendant’s female friend. The victim had argued with the woman and the defendant earlier, and had kicked the defendant, knocking him down. The victim left, and when he came back he began harassing the woman again. The defendant told the victim to leave the woman alone. The defendant armed himself and shot the victim twice, admitting later that he did not really think the victim was going to kill him. The victim was much younger, stronger, and bigger than the defendant. This Court found that the defendant’s twelve-year sentence was not excessive.

In State v. Lacey, 95-0449 (La.App. 4 Cir. 2/15/96), 669 So.2d 1303, the victim had argued with the defendant and his family for years. On the day of the shooting, the defendant’s brother got into an argument with the victim, and the defendant came out of his house with a gun, shooting five times and hitting the victim once. This Court affirmed his eighteen-year sentence. In State v. Coleman, 94-0666 (La.App. 4 Cir. 12/15/94), 647 So.2d 1355, this Court affirmed the defendant’s fifteen-year sentence. The victim had moved out of the trailer he had shared with the defendant, and the defendant shot the victim when he returned to the trailer. In State v. Sherrill, 611 So.2d 728 (La.App. 4 Cir.1992), the defendant argued with his roommate, left the apartment they shared, came back later, and shot him. This Court affirmed his fifteen-year sentence.

In comparison to the cases cited above, we find that trial court here did not impose an excessive sentence. Although the fact scenario in this case is closest to that of Osborne, where the defendant received a twelve-year sentence, the facts of this case are also similar to many of those cited above, including McBride, where Lathe defendants received greater sentences than the one the trial court imposed in this case.

The appellant nonetheless argues that his sentence is excessive because of a mistake of fact/law made by the trial court, that being the court’s statement at sentencing that the appellant had been originally charged with murder and that the jury found him guilty of the lesser charge of manslaughter. The appellant argues that defense counsel was ineffective because he did not point out this mistake to the court. The appellant further argues that had the court realized that the jury did not return a lesser verdict but instead found the appellant guilty as charged, the court would have imposed a lesser sentence. This supposition, however, is speculative at best, especially given the reasons for sentencing the court gave prior to imposing sentence. In addition, at one point the court alluded to the facts of this case as a “classic manslaughter.”

The appellant asserts that counsel was ineffective for failing to present mitigating evidence concerning the appellant’s physical condition. Present counsel does not specify what health problems plague the appellant or plagued him at the time of sentencing. However, before imposing sentence the trial court noted that it had taken into consideration both the appellant’s age and physical condition.

The appellant next alleges that counsel was ineffective for failing to bring to the court’s attention the mitigating factors that the victim would not allow the appellant to leave and that the appellant shot the victim only after the victim grabbed him. The trial court was present throughout the entire trial and was clearly aware of the circumstances of the case. Moreover, the victim did not prevent the appellant from leaving. The victim may have told the appellant he could not quit the game, but he did not stop him from going to his truck; the appellant could have 1 ¡¡¿just as easily driven away from the victim as he could arm himself and return to the dominos table and the victim. In addition, the victim did not grab the appellant until the appellant returned with the gun.

The appellant lastly cites cases where defendants either received lesser sentences, or received greater sentences, which were vacated, but none of these cases mandates a finding by this Court that his sentence is excessive. The appellant cites this Court’s opinion in State v. Soraparu, 96-0116 (La.App. 4 Cir. 2/5/97), 688 So.2d 1320, where this court found excessive a forty-year sentence imposed on a first offender who shot the victim during an argument. However, the Supreme Court reversed this court’s ruling and reinstated the sentence, finding it was not excessive. State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608.

In State v. Matthews, 532 So.2d 270 (La.App. 3 Cir.1988) and State v. Taylor, 535 So.2d 1146 (La.App. 2 Cir.1988), the courts found the defendants’ sentences excessive. In State v. Matthews, the defendant was intoxicated when he stabbed a co-worker. The court found the twenty-one-year sentence, the maximum sentence available at that time, to be excessive. In State v. Taylor, the defendant shot his former friend over the friend’s failure to repay charges to the defendant’s credit card bill. The defendant pled guilty to manslaughter and received an eighteen-year sentence. The appellate court vacated the sentence as excessive based on the fact that the sentence was near the maximum sentence the defendant could receive.

The appellate courts upheld sentences of twenty, twenty-one, and twenty-two years in the other cases mentioned by the appellant. In State v. Brown, 35,641 (La.App. 2 Cir. 8/20/03), 852 So.2d 1234, the defendant beat, strangled, and drowned his victim on a nature trail. The court upheld his twenty-year sentence. In State v. Taylor, 35,921 (La.App. 2 Cir. 4/3/02), 813 So.2d 1151, the court affirmed the defendant’s twenty-two-year sentence. The defendant shot the victim after refusing to perform further sexual activity, put the victim’s body in the victim’s trunk, and drove around with the body in the trunk for several days. In State v. Scott, 28,131 (La.App. 2 Cir. 2/28/96), 669 So.2d 664, the defendant pled guilty and received a twenty-one-year sentence. The defendant was a principal to a robbery/murder and hit the victim over the head when he tried to escape. The court affirmed his sentence. In State v. Maxie, 594 So.2d 1072 (La.App. 3 Cir.1992), the defendant and the victim had a history of confrontations over the victim’s theft of the defendant’s car stereo. The defendant shot the victim four times. The court imposed a sentence of twenty-one years, and the appellate court affirmed the sentence.

The appellant contends that because his crime most closely resembles that of State v. Taylor (presumably the 1988 case where the appellate court found the eighteen-year sentence excessive), his twenty-year sentence should also be found to be excessive. However, the major factor the court in Taylor recognized was that the eighteen-year sentence was very close to the maximum sentence available at that time, and the court was not convinced that the Taylor’s crime was deserving of a sentence near the maximum sentence. By contrast, here, the appellant’s sentence is one-half the maximum sentence. And as noted above, it is not out of line with other manslaughter sentences upheld by this court and the Supreme Court.

As noted in State v. Guzman, 99-1753, p. 15 (La.5/16/00), 769 So.2d 1158, 1167:

To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of | ¡^justice or that the sentence makes no reasonable contribution to acceptable penal goals and therefore, is nothing more than the needless imposition of pain and suffering. Id. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion. State v. Cann, 471 So.2d 701, 703 (La.1985).

Here, given the cases cited above, we do not find that the trial court abused its broad discretion by imposing a twenty-year sentence on the appellant for his manslaughter conviction. Because the sentence was not excessive, counsel was not ineffective for failing to object to it or to file a motion to reconsider it. This assignment has no merit.

Accordingly, we affirm the appellant’s conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Minos BOREL, Sr. et al. v. Dr. Clinton YOUNG and Louisiana Medical Mutual Insurance Company.
    Nos. 2006-352, 2006-353.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 29, 2006.
    Rehearing Denied Jan. 31, 2007.

      P. Chris Christofferson, APLC, New Orleans, LA, for Plaintiffs/Appellants, Minos Borel, Sr., et al.
    Marc W. Judice, H.L. Tuten, III, Judice & Adley, Lafayette, LA, for Defendants/Appellees, Dr. Clinton Young and Louisiana Medical Mutual Insurance Company.
    Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   COOKS, Judge.

I-.STATEMENT OF THE CASE

This is a medical malpractice case. Minos Borel and his children appeal the judgment of the trial court dismissing their claim for damages for the death of Mary Borel on an Exception of Prescription. For the reasons assigned below, we affirm the decision of the trial court.

STATEMENT OF THE FACTS

In April 1999, an ultrasound revealed Mary Borel, age 65, had a mass in her left lower abdomen. Her internist, Dr. Clinton Young, referred Mrs. Borel to Dr. Aldy Castor, an OB/GYN for surgical evaluation. Dr. Castor recommended surgery. On August 18, 1999, Mrs. Borel was admitted to Lafayette General Medical Center (LGMC) for surgery. On August 19, 1999, Dr. Castor performed a left ovarian cys-tectomy and appendectomy. Mrs. Borel tolerated the procedure well.

On the morning after surgery, Mrs. Bo-rel was awake, alert and her vital signs were stable. However, her temperature was 99 degrees and she complained of dizziness. By that afternoon, Mrs. Borel was coughing and complaining of shortness of breath. By 5:30 p.m., her oxygen saturation dropped, her pulse was elevated and her fever spiked to 103.8 degrees. She was moved to ICU, intubated and placed on a ventilator.

Mrs. Borel was diagnosed with congestive heart failure of unknown cause. On August 21, 1999, Dr. Castor and Dr. Hin-chen performed an exploratory laparotomy for possible pelvic abscess. Mrs. Borel was placed on an antibiotic medication and Dr. Gary Guidry was consulted for pulmonary management. Mrs. Borel developed multi-organ failure and was taken back to surgery on August 25, 1999. She remained on antibiotic therapy but continued to have difficulty oxygenating and remained | ^unresponsive. By October 15, 1999, Mrs. Borel was transferred to St. Brendan’s Long Term Care Facility. Mrs. Borel remained at St. Brendan’s until her death on May 23, 2000.

On August 14, 2000, Plaintiffs filed a malpractice claim with the Patient Compensation Ftmd (PCF) against Dr. Clinton Young, Dr. Aldy Castor, and Lafayette General Medical Center (LGMC). On January 17, 2002, the medical review panel rendered an opinion finding no breach in the standard of care rendered to Mrs. Borel by Dr. Young, Dr. Castor or LGMC. The record indicates the Plaintiffs received the opinion on January 22, 2002.

On March 28, 2002, the Plaintiffs filed suit in district court against LGMC. The Plaintiffs’ petition did not name Dr. Young or Dr. Castor. On April 24, 2002, LGMC answered the Plaintiffs’ petition asserting “the comparative negligence and/or fault of third parties not made defendants” in the case. Two years later, pursuant to discovery, in January 2004, Plaintiffs learned Dr. James Falterman would testify as an expert witness on behalf of LGMC. The deposition of Dr. Falterman was taken on February 17, 2005. Plaintiffs contend they “discovered” for the first time during the deposition that Dr. Falterman would testify Drs. Young and Castor fell below the standard of care in their treatment of Mary Borel. Plaintiffs assert prior to this date, they had no reasonable cause to believe there was negligence by Dr. Young or Dr. Castor from any source qualified to testify on the standard of care required of an internist or an OB/GYN.

Plaintiffs attempted to amend the original petition to name Dr. Young and his insurer, Louisiana Medical Mutual Insurance Company (LAMMICO). When their efforts failed, on March 15, 2005, the Plaintiffs filed a separate district court suit for malpractice against Dr. Young and LAM-MICO, under Docket No, 2005-1393-D. 14This suit was consolidated with the pending suit against LGMC.

Dr. Young and LAMMICO filed an Exception of Prescription. The trial court granted the exception finding Plaintiffs’ suit, filed in district court on March 15, 2005, more than three years from the date of the alleged malpractice, was barred under La.R.S. 9:5628(A), which provides, “even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.” The trial court reasoned this provision is peremptive in nature and not subject to interruption or suspension and concluded “[n]o action may • be brought once three years have passed after the alleged act of malpractice under any circumstances, even (as the statute clearly states) if discovery of the alleged act, omission or neglect occurs during the third year.” Therefore, the trial court found suit against Dr. Young, filed in district court more than three years after the alleged malpractice, was barred by peremption. We affirm the decision of the trial court but for different reasons.

LAW AND DISCUSSION

La.R.S. 9:5628 — Prescription or Peremption

The prescriptive period for medical malpractice is provided in La.R.S. 9:5628, which provides in relevant part:

A. No action for damages for injury or death against any physician ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, or omission, or neglect; provided, however, that even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

This statute provides two prescriptive periods within which to institute a medical malpractice action, namely one year from the date of the alleged act or one year from the date of discovery but not longer than three years from the date of the | alleged act, omission or neglect. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502. The trial court interpreted these two time periods as follows:

La.R.S. 9:5628(A) means that in an action against a physician under the medical malpractice act, the plaintiff has one year from the alleged act, omission or neglect or one year from discovery of the alleged act, omission or neglect within which to bring an action. This one year period is, presumably, subject to all of the normal rules applied to suspension and interruption of prescription found elsewhere in the law.
But the second period of time that must be applied to all actions under the medical malpractice act is “peremptive” in nature and may not be interrupted or suspended. No action may be brought once three years have passed after the alleged act of malpractice under any circumstances, even (as the statute clearly states) if discovery of the alleged act, omission or neglect occurs during the third year. Pena v. Williams, M.D., 03-0982 (La.App. 4 Cir. 2/4/04), 867 So.2d 801. "Initially, ... [La.R.S. 9:5628] coincides with La.Civ.Code art. 3492’s basic one year prescriptive period for delictual actions, coupled

Although the result reached by the trial court is correct, the supreme court has held La.R.S. 9:5628 is prescriptive in nature, not peremptive, and there are specific provisions in the Medical Malpractice Act(MMA) which govern the suspension and interruption of the prescriptive period. See Hebert v. Doctors Memorial, 486 So.2d 717 (La.1986)

| JueBreton and La.Civ.Code art. 2321(C).

In deciding this case, the trial court looked only to the date of the alleged malpractice (May 23, 2000) and the date the district court suit was filed against Dr. Young (March 15, 2005) and concluded the suit was perempted under the statute. However, during the five-year interim, the Plaintiffs filed a timely request for a medical review panel against Dr. Young and LGMC, thus satisfying the requirements of La.R.S. 40:1299.47(B)(l)(a)(i), and then Plaintiffs filed a timely district court suit against LGMC, an alleged joint tortfeasor. The issue presented for our review is whether the timely district court suit, filed within ninety days after a medical review panel decision against LGMC interrupts prescription as to Dr. Young, an alleged joint tortfeasor who was named in the suit more than ninety days after receipt of the review panel’s decision finding his conduct did not fall below the standard of care.

The Defendants do not dispute a medical review panel request against Dr. Young and LGMC was timely filed, which suspended the running of prescription. La. R.S. 40:1299.41(G); La.R.S. 40:1299.47(A)(2)(a); LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226. However, the Defendants assert this suspension ended ninety days following receipt of the panel decision or the remainder of the initial prescriptive period applicable to Dr. Young. Thereafter, defendants maintain prescription against Dr. Young began to run again, and Plaintiffs had until January 29, 2003 to file suit against Dr. Young, but failed to do so.

17Plaintiffs assert they complied with the dictates of the medical malpractice statute when a request for a medical review panel was timely filed against Dr. Young and LGMC. Thereafter, Plaintiffs contend the district court suit filed against LGMC on March 28, 2002 interrupted prescription as to Dr. Young because Dr. Young and LGMC are joint tortfeasors. Plaintiffs rely on La.Code Civ.P. art. 2324(C). Plaintiffs also cite White v. West Carroll Hospital, 613 So.2d 150 (La.1992), and Younger v. Marshall Industries, 618 So.2d 866 (La.1993), two cases decided before LeBreton. They assert LeBreton is inapplicable because LeBreton dealt with the effect of filing a premature suit in district court, while, in this case, suit in district court was timely filed against LGMC, a joint tortfeasor. It is true, as Plaintiffs assert, that LeBreton was not called to decide the precise issue in this case. Nevertheless, we find LeBreton’s application is broader than Plaintiffs contend and the holding in that case controls our decision in the present.

As Plaintiffs assert, LeBreton addressed the effect of filing a district court suit prior to satisfying the requirements of the statute mandating that a plaintiff first submit a medical malpractice claim to a medical review panel. Prior to LeBreton, a plaintiff could interrupt prescription by filing suit in the district court against the health care provider within the one year statutory period. The defendant health care provider customarily responded by filing an exception of prematurity seeking dismissal of the suit because of plaintiffs failure to first file a request for a medical review panel. Under the general codal provisions, as interpreted by Hernandez v. Lafayette Bone & Joint Clinic, 467 So.2d 113 (La.App. 3 Cir.1985), prescription would begin anew after the rendition of the panel decision, thereby allowing the plaintiff an additional year within which to file suit in district court. The LeBreton court concluded allowing IsHernandez to stand “will condone and encourage the technique of unnecessarily prolonging malpractice litigation by a lesser standard. The party who improperly files a premature medical malpractice suit without first- filing the claim with the board for a medical review panel, and whose suit is subsequently dismissed without prejudice, gains an additional year of prescription in addition to the suspended time provided by the Medical Malpractice Act, within which to file the suit anew.” LeBreton, 714 So.2d at 1230. LeBreton sought to remedy this “perceived evil[ ]” by declaring that the general provisions on interruption of prescription, found in La. Civ.Code art. 3462, should not be applied simultaneously with the specific provisions regarding prescription found in La.R.S. 40:1299.47(A)(2)(a) of the medical malpractice statute. The supreme court stated:

Rules of statutory construction provide that where two statutes deal with the same subject matter, they should be harmonized if possible; however, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.

LeBreton, 714 So.2d at 1229.

The supreme court held the special provisions on prescription contained in the medical malpractice statute trump the general codal provisions on prescription. The supreme court concluded, as follows:

[B]y virtue of the legislative enactment calling for the necessity of a medical review panel prior to submission of the case to the district court, the legislature by special provision for the inclusion of suspension excluded the applicability of interruption of prescription....
19Thus, considering the doctrinal underpinnings for the existence of the rules of suspension, it is evident that there is no need for the general rules of interruption of prescription to combine with suspension to synergistically benefit the plaintiff.

Id. at 1231.(emphasis added).

We find LeBreton clearly overruled the prior jurisprudence which applied the general provisions on interruption of prescription to a medical malpractice case and held the more specific provision found in the MMA controls the time in which suit must be filed against health care providers covered by the Act.

Applicable Provisions of the Medical Malpractice Act

Louisiana Revised Statutes 40:1299.41 provides, in relevant part:

D. A health care provider who fails to qualify under this Part is not covered by the provisions of this Part and is subject to liability under the law without regard to the provisions of this Part. If a health care provider does not so qualify, the patient’s remedy will not be affected by the terms and provisions of this Part, except as hereinafter provided with respect to the suspension and the running of prescription of actions against a health care provider who has not qualified under this Part when a claim has been filed against the health care provider for review under this Part.
G. Notwithstanding the provisions of Subsection D, the running of prescription against a health care provider who is answerable in solido with a qualified health care provider against whom a claim has been filed for review under this Part shall be suspended in accordance with the provisions of R.S. 40:1299.47(A)(2)(a).

Louisiana Revised Statutes 40:1299.47(A)(2)(a) provides, in relevant part:

The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, a provided in Subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the medical review panel, in the case of those health care providers covered by this Part, or in the case of health care |inproviders against whom a claim has been filed under the provisions of this Part, but who has not qualified under this Part, until ninety days following notification by certified mail to the claimant or his attorney by the board that the health care provider is not covered by this Part. The filing of a request for review of a claim shall suspend the running of prescription against all joint and soli-dary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review.

The first sentence of La.R.S. 40:1299.47(A)(2)(a) provides that prescription is suspended for non-qualified health care providers until ninety days following notification by the PCF that the health care provider is not qualified. Prescription is suspended for a qualified health care provider until ninety-days following notice of the opinion of the medical review panel. The second sentence of this provision specifically addresses the issue of suspension of prescription for joint and soli-dary obligors: “The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review.” If the party is an alleged joint tortfeasor, prescription is suspended regardless of whether the party is qualified under the Act. The filing of |na request for review triggers suspension of prescription in a malpractice suit against all tort-feasors, qualified or non-qualified, during the pendency of the panel proceeding.

Subsequent jurisprudence applying the principles of LeBreton to joint tortfeasors situations have concluded that the specific provisions in the medical malpractice statute regarding suspension of prescription against joint tortfeasors apply to the exclusion of the general codal articles on interruption of prescription against joint tort-feasors found in La.Civ.Code art. 2324(C).

In Richard v. Tenet Health Systems, Inc., 03-1933 (La.App. 4 Cir. 4/14/04), 871 So.2d 671, writ denied, 04-1521 (La.10/29/04), 885 So.2d 587, the Fourth Circuit addressed the issue of whether a timely filed district court suit against one health care provider interrupted prescription as to other health care providers, not previously named in the panel request, who were alleged to be jointly liable with the named defendants. In Richard, the plaintiff filed a timely request for a medical review panel against Mercy Hospital, Dr. Albright, Landry-Albright Radiology Group, and Dr. Bonin. After rendition of the panel decision, the plaintiff filed a timely district court suit against those defendants. Several years later, the plaintiffs filed a request for a medical review panel against additional health care providers (Drs. Smith, Glade and Villien), alleged to be joint tortfeasors, who were not previously named in the panel request. Drs. Glade, Villien and Smith filed an exception of prescription. The Fourth Circuit found suit was barred. The court applied the principles articulated in LeBre-ton and concluded the specific provisions of the medical malpractice statute rather than the general codal articles on interruption of prescription applied to determine whether a district court suit filed against one health care provider interrupted prescription as to all health care providers alleged to be jointly liable. The appellate court found 11¾“LeBreton and the cases following it recognize that the legislature has established special rules for prescription under the Medical Malpractice Act. Consequently, the general rules of prescription do not apply.” Id. at 673. The court held the initial request for a medical review panel suspended prescription as to Drs. Glade, Villien and Smith, as joint tortfea-sors. However, under the specific provisions of La.R.S. 40:1299.41(G) and La.R.S. 40:1299.47(A)(2)(a), “prescription against any alleged joint tortfeasor or solidary ob-ligor was suspended only for 90 days following notification, by certified mail, to the claimant or his attorney of the issuance of the opinion by the medical review panel.” Id. at 674. The court concluded, “the plaintiffs had only until 90 days after notice of the rendition of the opinion of the original medical review panel to file a complaint against any solidary obligors.” Id. The court found the plaintiff was notified of the opinion of the medical review panel against the original defendants on September 8, 1997 but waited over five years after the opinion to name Drs. Glade, Smith and Villien. Therefore, the appellate court concluded the plaintiffs claim as to these defendants had prescribed.

In Baum v. Nash, 97-233 (La.App. 3 Cir. 10/8/97), 702 So.2d 765, this court was called to decide whether the plaintiff could add a joint tortfeasor, within the ninety-day period, to a district court suit. In Baum, the plaintiff was misdiagnosed by Dr. Nash and Northwestern State University infirmary and required to undergo two surgeries for a ruptured appendix. The plaintiff filed a timely request for a 'medical review panel against Dr. Nash. Northwestern State University infirmary was not named in the request. Notification of the medical review panel opinion was received by the plaintiff and shortly thereafter, plaintiff filed a timely suit in district court against Dr. Nash. On June 10, 1996, within ninety days of the panel decision, the plaintiff filed an amending petition adding Northwestern State University infirmary to the district court suit. Northwestern filed an exception of prescription, citing UgLa.R.S. 9:5628, and alleging that the plaintiff failed to timely request a medical review panel. The trial court sustained the exception and this court reversed, stating:

Under the clear language of the statute, we find that the filing of a claim with the medical review panel suspends prescription with regard to non-named solidary obligors to the same extent that it is suspended for those named in the request by the panel. There are two different periods of suspension provided for in La.R.S. 40:1299.47(A)(2)(a) of the Private Act. The first being ninety days following notification of the opinion of the medical review panel for qualified health care providers under the private act, and the second being sixty days following notification that the health care provider is not covered by the Private Act.
In the instant case, prescription against the named defendant, Dr. Zev Nash, a qualified health care provider, was suspended until ninety days following notification of the medical review panel’s opinion, which was rendered on March 25,1996. Notification of the panel’s decision was not received by Baum until April 25, 1996. Plaintiffs original petition for damages against Dr. Zev David Nash was filed on May 16, 1996, and a First Supplemental and Amending Petition for Damages adding Northwestern State University on June 10, 1996. Accordingly, plaintiffs claim against Northwestern did not prescribe as plaintiff had ninety days from April 25, 1996, to file suit against non-named solidary obligors.

Baum, 702 So.2d at 768.

Plaintiffs cite Schulingkamp v. Ochsner Clinic, 01-1137 (La.App. 5 Cir. 3/13/02), 813 So.2d 524, to support their position that this issue has not been squarely decided by the supreme court. In Schuling-kamp, the plaintiffs filed suit in 1989 against several defendants including Ochs-ner Clinic. Ochsner filed an exception of prematurity and suit was dismissed without prejudice by consent judgment. The suit against the other defendants was still pending. During the pendency of the suit, but eleven years later, the plaintiff filed a request for a medical review panel to review the claim against Ochsner. The appellate court found the premature district court suit did not interrupt prescription as to Ochsner because “a prerequisite to the interruption of prescription requires that a panel has been convened to review the plaintiffs’ claim.” Id. at 528. The appellate court stated:

In this case, as in LeBreton, there are two statutes dealing with | uessentially the same subject matter. Plaintiffs argue, pursuant to La.C.C. art. 3463, that prescription against Ochsner was interrupted for as long as the suit against the remaining obligors was pending. However, to follow 3463, as plaintiffs suggest, is to ignore the statute more specifically directed at the prescription issue in the context of [the] Medical Malpractice Act, which states that plaintiff must first convene a medical review panel in order to stop the running of prescription. Based upon the reasoning of LeBreton, supra, we therefore find the controlling provision for the issue at hand to be contained in the Medical Malpractice Act.

Id. at 528-29.

The supreme court granted writs to resolve an apparent conflict in the circuits as to whether, at any time during the pen-dency of an action against a joint tortfea-sor, the plaintiff may file a request for a medical review panel against other tortfea-sors alleged to be jointly liable. However, in Schulingkamp the order granting the writ was recalled. In a per curiam opinion, the supreme court stated:

On application of the plaintiffs, we granted writs in this case intending to address an issue resolved differently by two appellate courts. That issue was whether a medical malpractice plaintiff may file a request for a medical review panel at any time during the pendency of a suit against tort defendants who were alleged to be solidarily liable with the medical malpractice defendants against whom the request is filed....
Our review of the record in this case revealed however, that no express allegation of solidary liability has been asserted by the plaintiffs. Moreover, the dramatic differences between the plaintiffs’ allegations concerning the medical malpractice defendant and their allegations concerning the only defendant remaining in the case at the time the request for medical review panel was filed, preclude any legal finding of solidarity between the two defendants. Thus the question we anticipated addressing is not posed in this case.

Schulingkamp, 02-1537 (La.2/25/03), 838 So.2d 1289.

The Plaintiffs also rely on the Second Circuit case of Coleman v. Acromed Corporation, 32,590 (La.App. 2 Cir. 12/15/99), 764 So.2d 81, writ denied, 00-0422 (La.3/31/00), 759 So.2d 73, which held LeBreton inapplicable. In Coleman, on June 17, 1992, the plaintiff underwent cervical and lumbar surgeries at Doctors’ Hospital of Shreveport. Dr. Warren Long performed the procedure inserting a surgical device which was designed by Dr. Arthur Steffee and manufactured by Acromed Corporation. J^On May 25, 1995, the plaintiffs filed a request for a medical review panel naming the hospital and Dr. Long as defendants. On June 12, 1995, the plaintiffs filed suit in district court against Acromed Corporation, as manufacturer, and Dr. Arthur Steffee, as designer, of a surgical implement. On September 17, 1997, the medical review panel rendered an opinion. On June 8, 1998, well beyond the ninety days, the plaintiff filed an amended petition naming the hospital and Dr. Long as defendants in the original suit. The hospital filed an exception of prescription alleging the plaintiffs’ claim had prescribed ninety days from receipt of the medical review panel opinion. The plaintiffs argued that a timely-filed suit pending against one solidary obligor continues the interruption of prescription as to all solidarly obligors. The appellate court found the original defendants were not health care providers and not subject to the requirements of the medical malpractice act. Suit as to those defendants was timely and served to interrupt prescription as to all other solidary obligors, even health care providers. The appellate court distinguished LeBreton “because the initial suit filed here by Plaintiffs was in products liability, which was valid, timely and not premature, making it a viable interruption of prescription.” Id. at 84.

Plaintiffs argue the supreme court has not directly considered the precise issue in this case, and they argue LeBreton should not be extended to reach this species of case for two reasons: first, it would foster unnecessary litigation by forcing a plaintiff to name all parties in a lawsuit prior to full discovery; and, second, it is unfair to apply the holding in this case because this was not the understanding of the practicing bar at the time this suit was instituted and there were no cases indicating that suit against one joint tort-feasor would not interrupt prescription against all.

Plaintiffs argue they did not “discover” that Dr. Young may have been negligent until February 17, 2005, during the deposition of Dr. Falterman. However, unlike the facts in Richard, Dr. Young was not an unknown or unnamed party. Plaintiffs named |1(iDr. Young in a request for a medical review panel alleging he breached the standard of care in the treatment of Mrs. Borel. Moreover, on April 24, 2002, when LGMC answered the Plaintiffs’ petition asserting “the comparative negligence and/or fault of third parties not made defendants” in the case, Plaintiffs were again alerted LGMC was asserting others were negligent in the treatment of Mrs. Borel. As Defendants point out, the Plaintiffs still had considerable time under the statute (until January 29, 2003) within which to bring Dr. Young into the suit. However, suit against Dr. Young was not filed until March 15, 2005, more than three years after suit was filed against the hospital.

The Plaintiffs argue to apply the reasoning of LeBreton to the facts in this case would be inequitable because this was not the understanding of the practicing bar at the time this suit was instituted and because there were no cases indicating suit against one joint tortfeasor would not interrupt prescription against all. While we find Plaintiffs’ argument persuasive, we are compelled to follow the holding in LeBreton, regardless of the result. See Bush v. National Health Care of Leesville, et al., 05-337 (La.App. 3 Cir. 11/2/03), 923 So.2d 150, rev’d, 05-2477 (La.10/17/06), 939 So.2d 1216.

We conclude suit against Dr. Young is barred by prescription. The alleged 117malpractice occurred on May 23, 2000 and a timely medical review panel proceeding was filed against Dr. Young and LGMC, joint tortfeasors, on August 14, 2000. The medical review panel proceedings extended for a period of two years following the alleged date of the malpractice. During the pendency of the proceedings, the prescription was suspended. The Plaintiffs were notified of the medical review panel decision on January 22, 2002. Accordingly, we find under La.R.S. 40:1299.47(A)(2)(a), Plaintiffs had until January 29, 2003, to bring Dr. Young, who had been previously named in the medical review panel, into the suit. Their attempt to bring him into the suit on March 15, 2005 was well beyond the time period designated by the statute.

DECREE

Based on the foregoing review of the record, we affirm the judgment of the district court dismissing the Plaintiffs claims against Dr. Clinton Young and LAMMICO on an Exception of Prescription.

AFFIRMED.

      . In Pena, 867 So.2d 801, the appellate court held La.R.S. 9:5628 is a peremptive statute and "[ajccordingly, nothing may interfere with the running of a preemptive period. It may not be interrupted or suspended; nor is there provision for its renunciation. And exceptions such as contra non valentem are not applicable.” Although, the result in Pena is correct, the language on peremption may create confusion for medical malpractice litigants and does not appear to be in keeping with the medical malpractice statute or supreme court directives. In practice, a suit in district court may be filed against a health care provider more than three years from the date of the alleged malpractice if, prior to that time, a timely medical review panel request is filed and prescription is suspended. See La. R.S. 40:1299.47(B)(1)(a)(I); La.R.S. 40:1299.41(G); La.R.S. 40:1299.47(A)(2)(a); Hebert v. Doctors Memorial, 486 So.2d 717 (La.1986); and LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226.

      . In Hebert, 486 So.2d 717, the supreme court explained:

        with the 'discovery exception of our jurisprudential doctrine of contra non valentem ('within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect'). A separate and independent feature, or provision, of § 9:5628 is contained in the following clause: provided, however, that even as to claims filed within one year from the date of discovery, in all events such claims must be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.
      [W]e conclude that La.Rev.Stat. § 9:5628 is in both of its features noted above prescription statute, with only the single qualification that the discovery rule is expressly made inapplicable after three years from the act, omission or neglect.” Id. at 723-24. (emphasis added). See also, Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502.

      . La.R.S. 40:1299.47(B)(l)(a)(i) provides: "No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section."

      . Guitreau v. Kucharchuk, M.D., 99-2570 (La.5/16/00), 763 So.2d 575, held when the statutory ninety-day period of suspension is complete, a plaintiff is entitled to the remainder of the one year prescriptive period that was unused at the time of the request for a medical review panel.

      . Louisiana Civil Code Article 2324(C) provides: "Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.”

      . Bush v. National Health Care of Leesville, et al., 05-337, p. 14 (La.App. 3 Cir. 11/2/05), 923 So.2d 150, 158, rev’d, 05-2477 (La.10/17/06), 939 So.2d 1216.

      . In a footnote, the supreme court noted: “As regards the non-qualified health care provider and cases not involving medical malpractice, La.Civ.Code art. 3462, the general provision, provides for interruption of prescription.'' LeBreton, 714 So.2d at 1231. That situation arose in Coleman v. Acromed Corp., 32,590 (La.App. 2 Cir. 12/15/99), 764 So.2d 81, where the Second Circuit found La.Civ.Code art. 3462 interrupted prescription as to a non-qualified health care provider when the claim was based in products liability. Finding Le-Breton inapplicable, the Second Circuit allowed the plaintiff to bring a qualified' health care provider into the timely-filed district court suit well beyond ninety days.

      . The wisdom of LeBreton is now evident, although initially, it created some untoward results in medical malpractice cases for unsuspecting litigants, which cases, because of the length of time it takes to come through the judicial system, are now just reaching the appellate courts. See Bush v. National Health Care of Leesville, et al., 05-337 (La.App. 3 Cir. 11/2/03), 923 So.2d 150, rev'd, 05-2477 (La. 10/17/06), 939 So.2d 1216. In Bush, plaintiffs claim arose prior to LeBreton and the plaintiff's attorney timely filed according to the jurisprudence at the time. However, the supreme court held LeBreton applied retroactively and the plaintiff's claim was dismissed, after trial, on an exception of prescription.

      . Under this provision, if the plaintiff learns the health care provider is not qualified, relies solely on the joint tortfeasor theory and fails to file in district court within ninety days of notification of the non-qualified status, his claim may be barred if the qualified health care provider is dismissed on a summary judgment. Such was the case in Williams v. Northgate Hospital, 98-1477 (La.App. 3 Cir. 5/5/99), 734 So.2d 1251, writ denied, 99-1588 (La.9/17/99), 747 So.2d 565. In Williams, the alleged act of malpractice occurred on April 3, 1994. On July 24, 1994, within a year, the plaintiff filed a malpractice complaint with the medical review panel against the physician (qualified) and the hospital (non-qualified). The plaintiff was notified by the PCF, on August 2, 1994, that the hospital was not qualified under the Act. The plaintiff did not file in district court within ninety days as required under the Act but waited until after the medical review panel decision was rendered regarding the qualified physician. The physician was dismissed on a motion for summary judgment and the hospital filed an exception of prescription. In dismissing the plaintiff's suit against the hospital, this court held "so long as suit is timely filed as to the qualified defendant, it will be timely filed as to the non-qualified defendant if they are joint or solidary obligors.” Id. at 1252. The result may have been different had the plaintiff filed within 90 days of notification of the non-qualified status or the qualified physician joint tortfeasor not been dismissed from the suit.

      . Applying La.Civ.Code art. 2324(C), as Plaintiffs suggest, subjects the health care provider to an indefinite period of prescription even after the claim has been evaluated by a medical review panel. Once a panel decision is rendered, suspension ends and the plaintiff has 90 days or the remainder of the year to name a joint tortfeasor. It can be argued with regard to an unknown joint tort-feasor, a plaintiff is allowed the remainder of the three years to "discover” the name of the party who may have caused him harm. However, even applying this argument in the present case does not assist Plaintiffs. The Plaintiffs were notified of the panel decision on January 22, 2002. The remainder of the one year prescriptive period ended on January 29, 2003. Even assuming the Plaintiffs had two additional years to "discover” a joint tortfea-sor (or until January 29, 2005), suit against Dr. Young was not filed until March 15, 2005.

      . The inequity of overruling prior jurisprudence on which litigants relied was addressed in Bush. The supreme court found "the equity of placing all litigants on the same footing outweighed any inequity to those plaintiffs whose suits might have been prescribed due to their failure to follow proper procedures.” Bush, 939 So.2d at 1221.