author: COOKS, Judge.

text:
    STATE of Louisiana v. Charles W. HATCH.
    No. 06-1587.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2007.

      G. Paul Marx Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Charles W. Hatch.
    Charles C. Foti, Jr. Attorney General-State of Louisiana, Molly L. Balfour, Assistant Attorney General Louisiana Department of Justice, Baton Rouge, LA, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

[t Defendant, Charles Hatch, appeals his convictions and sentences on the charges of aggravated battery and armed robbery. For the following reasons, we affirm the convictions, but vacate the sentences and remand for resentencing.

FACTS

On September 13, 2004, at approximately 7:00 p.m., Shane Hilton answered the door of his home and two men forced their way into his home. Hilton testified that one of the men wore a ski mask and the other held a bat. Once the men were inside his home, Hilton ran to a room in the back of the house and tried to hold the door closed. However, the two men pushed down the door. Once inside the room, the two men told Hilton to get down and asked where his wallet or money was. Hilton then determined that the masked man was Joseph Ripley, his ex-wife’s brother. Hilton testified that every time he said Ripley’s name he was hit with the bat. Hilton eventually led the two men to his wallet in the kitchen. When Hilton handed over his wallet, the man with the gun cocked the gun, and Hilton “guessed” the man pulled the trigger. Hilton was then pistol-whipped. Hilton testified that at that time, he “kind of blacked out” and started swinging at both men. He then ran out the front door to a neighbor’s house and called the police. Hilton also called his ex-wife, Angela Greenlee, and told her she did not succeed. Later, Angela and her sister showed up at Hilton’s home.

Winnie Sumpter, Hilton’s neighbor, testified that she pulled into her driveway at approximately 10:00 p.m. and saw two men cutting across her yard. While her car was still running, but in park, a man approached her car, took out a gun, and used it to break her car window. The man then pointed the gun at her, demanded her money, and reached into her car and took her purse.

Police prepared a photographic lineup which contained a photograph of Clint |2Mott, who had been known to hang out with Ripley and who resembled the physical description given by Hilton and Sump-ter. However, a photograph of the Defendant was not placed in the lineup. Hilton testified that when viewing the photographic lineup he informed police that Mott resembled the man who had been in his home, but he was not 100 percent certain about the identification. Sumpter identified Mott in the lineup, but told police the person who took her purse had a fuller face. Mott was subsequently arrested. At that time, Mott had bleached blond hair rather than brown hair, as depicted in the photograph used in the lineup. After police spoke to Mott and his acquaintances, Angela Perkins and Michael Livingston, Mott was cleared as a suspect.

Ripley was subsequently arrested. He gave a statement to police and brought them to the crime scene to collect evidence. In his statement, Ripley implicated Defendant and stated the two men went to Hilton’s home because Hilton hit Angela Greenlee, Ripley’s sister and Hilton’s ex-wife.

Based on Ripley’s statement, police arrested Defendant on September 15, 2004. Defendant gave a statement to police indicating that Angela offered to pay him to break Hilton’s legs. Defendant also admitted he and Ripley went to Hilton’s residence to threaten him and that Ripley wore a mask to conceal his identity because Hilton knew him. Defendant further admitted he and Ripley attacked Hilton using a baseball bat and a handgun. Additionally, Defendant admitted busting Sumpter’s car window as she pulled into her driveway, and he stated that Ripley took Sumpter’s purse.

Defendant was charged by bill of information with one count of aggravated battery, a violation of La.R.S. 14:34, and one count of armed robbery, a violation of lc.La.R.S. 14:64. Defendant entered a plea of not guilty.

At trial, Defendant testified that he was at home on the date of the offenses, September 13, 2004. However, on September 14, 2004, he met Ripley and Mott at Ripley’s home. At that time, Ripley told him what had occurred the previous day. Mott then informed Defendant that he had felony charges pending against him at that time and told Defendant, “if you take this charge for me, I’ll give you 3,000 roll pills.” Mott also promised to bond Defendant out of jail and then give him the pills. Defendant testified that at the time of the discussion, he thought the charges involved were purse snatching and battery. Defendant denied committing the acts set forth in his statement to police. He testified he was told what to say in the statement, and nothing in his statement was true.

Detective Brandon Dever testified that he wrote Defendant’s statement, and he wrote what was told to him by Defendant. Additionally, Defendant was allowed to read the statement.

Defendant called his sister, Krista Raymond, to testify on his behalf. She testified that she had phone contact with Defendant on September 13, 2004 between the hours of 8:00 p.m. and 12:00 a.m. At that time, she stated that Defendant was at his mother’s home.

Mike Greenlee, Angela’s ex-husband, testified that he came home from work, on a date he could not specifically recall, to find Angela, Ripley, and the Defendant at the home of his in-laws. Later that night, Angela left her parents’ home and did not return until a little after 10:30 p.m. While Angela was gone, Ripley and Defendant were not at the house. Some time after her return, Angela’s cell phone rang, and Hilton was on the line yelling and screaming at her. Angela and her sister then went|4to Hilton’s home.

A jury returned a verdict of guilty of aggravated battery and armed robbery. Defendant was subsequently sentenced to twelve years at hard labor without benefit of probation, parole, or suspension of sentence for armed robbery and to ten years for aggravated battery. The sentence for aggravated battery was ordered to run consecutively to the sentence for armed robbery. However, the court suspended the sentence for aggravated battery and placed Defendant on supervised probation for a period of five years, to begin upon his release from the sentence imposed for armed robbery. Defense counsel objected to the sentence.

Defendant has appealed, asserting his conviction was based on insufficient evidence, and his sentence was excessive.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant contends his conviction was based on insufficient evidence. Specifically he contends the evidence shows he made a false confession, the victims could not identify him as the perpetrator, and there was no other evidence in support of his being the perpetrator.

Defendant asserts the victims identified Mott as the perpetrator and never identified him. The police arrested Mott, but released him because his hair had been bleached blond. However, there was no evidence regarding when Mott’s hair was dyed. Additionally, Detective George McNeil admitted that Mott could have changed his hair color to alter his appearance.

Defendant further asserts his in-culpatory statement was given undue weight and the trial court erred in failing to consider the weight of the evidence against Mott and the lack of corroboration for the Defendant’s confession.

| R“In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)_ [T]he 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. Captville, 448 So.2d 676, 678 (La.1984). Furthermore, when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidenti-fication. State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297; State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649. Positive identification by only one witness is sufficient to support a conviction. Weary, 03-3067 at p. 18, 931 So.2d at 311; Neal, 00-0674 at p. 11, 796 So.2d at 658; State v. Mussall, 523 So.2d 1305, 1311 (La.1988). It is the factfinder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Bright, 98-0398, p. 22 (La.4/11/00), 776 So.2d 1134, 1147.

Moreover, in Louisiana, an accomplice is qualified to testify against a co-perpetrator even if the State offers him inducements to testify. Neal, 00-0674 at p. 11, 796 So.2d at 658. The inducements would merely affect the witness’s credibility. Id. at p. 12, 796 So.2d at 658. Additionally, a conviction may be sustained on the uncorroborated testimony of a purported accomplice, although the jury should be instructed to treat the testimony with great caution. State v. Tate, 01-1658, pp. 4-5 (La.5/20/03), 851 So.2d 921, 928. When the accomplice’s testimony is materially corroborated by other evidence, such language is not required. Id.; State v. Castleberry, 98-1388, p. 13 (La.4/13/99), 758 So.2d 749, 761. An accomplice’s testimony is materially corroborated “if there is evidence that confirms material points in an accomplice’s tale, and confirms the defendant’s identity and some relationship to the situation.” Castleberry, 98-1388 at p. 13, 758 So.2d at 761 (quoting State v. Schaffner, 398 So.2d 1032, 1035 (La.1981)).

State v. Hughes, 05-992, pp. 5-6 (La.11/29/06), 943 So.2d 1047, 1051.

The sole issue in this case is Defendant’s identity as the perpetrator. Accordingly, we must determine whether the State negated any reasonable probability of misidentification. The victims did not identify the Defendant as the perpetrator. Both victims identified Mott, who had brown hair, in a photographic lineup, but indicated they were not certain he was the perpetrator. Mott was arrested and, at that | (¡time, had bleached blond hair. Police were unsure when Mott dyed his hair. As noted by the Defendant, Detective McNeil testified a person would “probably” dye his hair in order to change his appearance. However, after Mott was arrested, Detective McNeil asked Mott’s friends, Perkins and Livingston, how long Mott’s hair had been blond and Mott was then released. Ripley testified he saw Mott in Kroger a month prior to the incident and, at that time, Mott’s hair was brown. However, he also testified that he last saw Mott two to three months prior to his arrest. Mike Greenlee testified he last saw Mott a few months prior to the incident and Mott’s hair was blond at that time.

There was also testimony regarding whether the perpetrator had facial hair. Sergeant Glenn Romero testified that Sumpter informed police that the perpetrator had a smooth complexion and Hilton indicated he possibly had a goatee. Detective Dever testified that Hilton stated the perpetrator possibly had a goatee. At trial, Hilton denied telling police about a goatee. Sumpter testified that the perpetrator was clean-shaven. In the photograph admitted as State Exhibit 28, Defendant has facial hair. However, there was no testimony from any witnesses regarding whether Defendant had facial hair on the date of the offense. The only testimony regarding the issue was given by Detective Dever who testified that he believed the picture of Defendant was taken on the date of his arrest, but he was not certain.

Defendant confessed to the crimes at issue. He alleges his confession was false. Ripley confessed to his involvement in the crimes at issue and implicated Defendant. Ripley’s statement differed from the Defendant’s regarding which of the two possessed the bat and the gun and who took Sumpter’s purse. Defendant challenges Ripley’s credibility by noting Ripley had been charged with aggravated rape and the charge was dropped. Additionally, as a result of the incident, Ripley 17pled guilty to the aggravated battery of Hilton and the charges regarding Sumpter were dropped. As a result of the plea bargain, Ripley was sentenced to seven years in exchange for his agreement to testify truthfully in this matter.

Defendant also put forth evidence of an alibi. His sister, Krista Raymond, testified Defendant was at his mother’s home on the night of the incident. However, Mike Greenlee testified Defendant was with Ripley and Angela. Angela later left and Defendant and Ripley were no longer at his in-law’s home. Additionally, after Angela returned, Hilton called her and Angela and her sister went to Hilton’s home. Hilton testified that on the night of the incident he called Angela, then she and her sister showed up at his home.

Although Hilton and Sumpter identified Mott in a photographic lineup, neither were certain he was the perpetrator. Hilton and Sumpter never specifically identified Defendant, however, Defendant confessed to the crime and Ripley, in his testimony at trial and his statement to police, implicated the Defendant. Furthermore, Mike Greenlee’s testimony, along with the corroborating testimony of Hilton, tends to prove Defendant was not at his mother’s home on the night of September 13, 2004. Thus, based on the evidence presented, the State negated any reasonable probability of misidentification. The jury clearly chose to believe Defendant’s confession and other testimony linking him to the offenses at issue. Those credibility determinations should not be second-guessed by this court. Accordingly, this assignment of error lacks merit and Defendant’s conviction is affirmed.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, Defendant contends the trial court imposed an excessive sentence. Defendant was sentenced to twelve years at hard labor without benefit of probation, parole, or suspension of sentence for armed robbery and |sto ten years for aggravated battery. The sentence for aggravated battery was ordered to run consecutively to the sentence for armed robbery. However, the trial court suspended the sentence for aggravated battery and placed Defendant on supervised probation for a period of five years, to begin upon Defendant’s release for the sentence imposed for armed robbery. Defendant argues the cumulative effect of the sentences results in him being under government supervision for twenty years, which is an excessive sentence as well as an illegal split sentence.

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record for errors patent, we find an error patent in the sentence imposed for aggravated battery which requires that the sentences be vacated and the case remanded for resentencing.

Louisiana Code of Criminal Procedure Article 893(A) prohibits the suspension of a sentence for a conviction of certain enumerated crimes of violence, including aggravated battery. Thus, the trial court imposed an illegally lenient sentence for aggravated battery. See State v. Bazar, 99-752 (La.App. 3 Cir. 2/2/00), 758 So.2d 844 and State v. Cox, 02-333 (La. App. 5 Cir. 9/30/02), 829 So.2d 521. The sentence imposed for aggravated battery is vacated and the case remanded for re-sentencing on that count. This holding renders moot Defendant’s assignment of error that his sentence is excessive.

DECREE

For the foregoing reasons, Defendant’s convictions for aggravated battery and armed robbery are affirmed. However, Defendant’s sentence for aggravated battery is vacated as illegally lenient, and the case is remanded for resentencing on that count.

CONVICTIONS AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      . The statements of Ripley and the Defendant differ regarding which of the two possessed the bat and the gun and who took Sumpter’s purse.

      . Mott was referring to Ecstasy. The Defendant testified that three thousand pills would have a street value of approximately sixty thousand dollars.

      . Defendant also asserts a new trial should have been granted. We note a Motion for Judgment of Acquittal and a Motion in Arrest of Judgment were filed and denied. However, no Motion for New Trial was filed.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Eva J. VAN WINKLE.
    No. 06-1636.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2007.
    David W. Burton, District Attorney-36th Judicial District Court, James R. Les-tage, Assistant District Attorney-36th Judicial District Court, DeRidder, LA, Plaintiff/Appellee, State of Louisiana.
    Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, Defendant/Appellant, Eva J. Van Winkle.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

_JjThe Defendant, Eva J. Van Winkle, pled guilty to possession of marijuana, second offense, and D.W.I., second offense. She was sentenced to serve sixty months at hard labor, with forty-two months suspended, on the marijuana conviction and placed on supervised probation for three years. The Defendant was sentenced to a concurrent 180 days in the parish jail on the D.W.I., second offense.

Mrs. Van Winkle appeals her sentence for the marijuana conviction on the basis of excessiveness. Because the sentence is indeterminate, we vacate the sentence and remand for resentencing.

LAW AND DISCUSSION

The Defendant received an indeterminate sentence. She was sentenced to serve sixty months in the Louisiana Department of Corrections with forty-two months suspended. The Defendant was placed on three years supervised probation subject to various conditions. For D.W.I., second offense, the Defendant was sentenced to serve one hundred eighty days in the parish jail. The court ordered that these two sentences run concurrently with one another, but consecutively to any other sentence previously imposed.

In imposing the conditions of the Defendant’s probation, the trial judge stated, “You are to pay an aggregate fine of $1,500 plus costs and fees on both offenses of conviction. ...” The Defendant faced a fíne of not more than $2,000.00 for possession of marijuana, second offense, and a fine of not less than $750.00 nor more than $1,000.00 for D.W.I., second offense. Considering the judge’s statement that the fíne was “an aggregate fine ... on both offenses,” it appears the judge was actually imposing a fine on each of the two offenses, the total of which was $1,500.00. This rendered the sentence for possession of marijuana, second offense, | gindeterminate in that the judge failed to specify the amount of the fine imposed as a condition of probation for this offense. Thus, we vacate the Defendant’s sentence for possession of marijuana, second offense, and remand the case for resentenc-ing with instructions that the trial court specify the amount of the fine imposed as a condition of probation.

We note that the trial court ordered that the aggregate fine, costs and fees be paid “on a pay plan set by your probation officer which shall involve payments of not less than $100 per month until satisfied.” Recently, in State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597, this court approved of the trial court’s order that the payment plan for the repayment of the fine and court costs be worked out by the Office of Probation and Parole and approved by the court. Specifically, this court stated:

[W]e find nothing in the statute which prohibits the trial court from seeking assistance from outside sources, including Probation and Parole, in formulating the appropriate payment plan. In fact, Probation and Parole may be in a better position to formulate a workable payment schedule than is the trial court. In taking advantage of this assistance, the trial court in no way cedes its responsibility to impose the payment plan, and it only becomes effective upon approval of the trial court.

Id. at 599-600.

The Stevens decision overruled prior jurisprudence which had required the payment plan to be established by the trial court. However, Stevens did not address the issue presented by this case, i.e., whether it is acceptable for the trial court to delegate the establishment of the payment plan to the Office of Probation and Parole without requiring approval by the court. We conclude that it is not. Stevens requires a court-approved pay plan.

|sThe Defendant contends the sentences imposed by the trial court are excessive. First, the only sentence before this court for review is the sentence imposed under docket number CR-1080-2005 for possession of marijuana, second offense. Additionally, the Defendant challenged her sentence for D.W.I., second offense, in a writ application which was recently denied by this court. State v. Van Winkle, an unpublished writ bearing docket number 07-17 (La.App. 3 Cir. 1/29/07).

Discussion of the Defendant’s contention that her sentence for possession of marijuana, second offense, is excessive is pre-termitted by our decision to vacate her sentence and remand for resentencing.

CONCLUSION

The Defendant’s sentence for possession of marijuana, second offense, is vacated and the case is remanded for resentencing.

SENTENCE VACATED. REMANDED FOR RESENTENCING.


author: COOKS, Judge. GENOVESE, J.,

text:
    In re INTERDICTION OF Amy HALL.
    No. 06-1649.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2007.
    Jack H. McLemore, Jr., Vidalia, LA, for Appellee, Ronald Hall.
    William F. Coco, State of Louisiana, Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, Alexandria, LA, for Appellant, State of Louisiana, Department of Health and Hospitals.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

|,STATEMENT OF THE CASE

The State of Louisiana, Department of Health and Hospitals, Office for Citizens with Developmental Disabilities (State), appeals a September 28, 2006 district court Order retaining Amy Hall in the Pinecrest Developmental Center in Pineville, Louisiana. For the reasons assigned below, we affirm the Order.

STATEMENT OF THE FACTS

The facts in this case are not in dispute. Amy Hall, age 28, has an extensive history of behavioral and psychiatric difficulties which manifested in her teenage years. The following assessment is from the State’s own evaluation:

This evaluation documents that Ms. Hall has a veritable plethora of psychiatric diagnoses, including Intermittent Explosive Disorder, Bipolar Disorder, Impulse Control Disorder, Oppositional Defiant Disorder, Borderline Personality Disorder, and Depressive Disorder, NOS. Ms. Hall has an extensive history of psychiatric difficulties, exhibiting the following behaviors: self-injury, verbal and physical aggression, property destruction, false allegations, screaming, spitting, exposing herself in public, public masturbation, and reports of suicidal ideation. These behavioral problems have resulted in numerous psychiatric hospitalizations and failed placements. Ms. Hall has been treated with numerous psychotropic medications (including, but not limited to, Zyprexia, Depakote, Paxil, Carbomazapine, Zoloft, Seroquel, Topo-max, Lexapro, Lithium, Ability and Trileptal); however, the record does not support a conclusion that any of these medications have been successful in controlling Ms. Hall’s aberrant behavior.

Amy’s behavior problems have resulted in several psychiatric hospitalizations and placement in the following medical and psychiatric institutions: Crossroads in Alexandria, Rivernorth in Pineville, East Lake in New Orleans, Plantation Mental Health, Allen Parish Recovery Hospital, Robertson Road Community Home, Polk Community Homes, Coutee and Coutee, Phoenix Personal Care Services, A Home Away From Home, Franklin County Community Homes, and Westside Habilitation Center. She was placed in the Concordia Parish prison facility for her safety and the |ssafety of others prior to her commitment in Pinecrest Developmental Center.

Throughout her life, the tremendous burden for Amy’s care and medical treatment fell to her parents, Reverend and Mrs. Ronald Hall. After years of struggling with Amy’s condition, failed treatment in private facilities and numerous medical evaluations, which confirmed that her condition was “persistent” and would only “progressively worsen,” the Halls sought help through the district court.

On November 29, 2005, they filed a petition asking that Amy be “fully interdicted and be placed in protective care, because of the sometimes violent tendencies” she exhibits. An attorney was appointed to represent Amy and she was examined by Dr. Edwin Urbi, M.D and Dr. Jay Bam-burg, Ph.D. A hearing was held on the petition and the reports of Dr. Urbi and Dr. Bamburg were filed in the record.

Dr. Urbi found Amy is extremely unpredictable, “gets agitated easily, [has] very limited insight, [and] impaired judgment.” He diagnosed intermittent explosive disorder and mental retardation. Her prognosis was “extremely poor” and he found she is “at high risk of hurting self and others.” Dr. Bamburg diagnosed Amy as suffering from Borderline Personality Disorder and determined her prognosis was “guarded at best secondary to her psychiatric condition.” He determined her personality disorder “is not subject to remission through therapy/medication, and will greatly impact Ms. Hall’s ability to make sound, safe life decisions.”

Reverend Hall testified at the hearing. He explained the circumstances which led to the decision to interdict and commit his daughter.

Of course, our daughter, we kept her at home until she was between the years of 16 and 17. She was in the public school system here in Concordia Parish and it was recommended prior to us actually having her go into a home that we should do it. We were very reluctant, it being our daughter. But at a point she got to where we could not physically handle her and she got aggressive toward her mother and I both, physically. Destructive of our property. And we felt like she was — my wife was afraid. She had physically attacked my wife on different | occasions. She has got some problems as of yet on account of it. We just got to where we could not handle her at home. So between the years of 16 and 17 she went into her first facility, which was Catahoula Caring. She made some threats against us physically. In fact, she had threatened us bodily injury and harm. And at one point before she went off, my wife did find a knife that she had hidden in her bedroom and she had made some threats relative to that. We just took it as threats, but then my wife found the knife that she had hidden and it really terrified both of us that there could be some harm done. We just concluded that we just didn’t have any other recourse.

Reverend Hall testified Amy has been at numerous facilities but “each time they called and told us we would have to come get her because of her violence. And we would just have to go get her because they turned her out on account of this.” At one point, the Halls called the Sheriffs department because “she had physically attacked” Reverend Hall and “had done damage to my wife’s automobile. She had done some damage there at our residence.” Her father testified committing Amy to a State treatment facility was a solution of last resort because it was “repulsive ... because she was ours.”

Mrs. Larose Hall, Amy’s mother, testified that she was afraid of being alone with Amy because “she has physically abused me. She has taken me — she has grabbed me by the hair of the head and then slung me around when she gets in these spells. I wouldn’t fight back because that was my daughter. But when she would grab my hand — she almost broke my thumb. She would just be physically abusive.”

The testimony presented by Reverend and Mrs. Hall, Amy’s extensive medical history and the reports of Dr. Urbi and Dr. Bamburg, clearly indicate Amy is suffering from mental illness which causes her to be a danger to herself and others. See La.R.S. 28:54(A). Following the hearing, a judgment was signed on April 20, 2006, interdicting Amy. At the time of the judgment, Amy was already in the care and 1 scustody of the State at the Pinecrest Developmental Center in Pineville.

Sixty days after rendition of the judgment, the agency director at the Pinecrest Developmental Center determined Amy did not meet the requirements for the Mental Retardation/Developmentally Disabled program, under La.R.S. 28:451.1. Despite her history of violent, psychotic behavior and limited mental capacity, the State found Amy did not meet the legal definition of “developmentally disabled” because she is “able to read and write” and made the decision to release her from State custody. Amy’s parents appealed the decision to release her from State custody to an administrative law judge. The director’s limited assessment of Amy’s eligibility under La.R.S. 28:451.1 was reviewed by an administrative law judge. The administrative law judge concurred in the finding that Amy did not meet the legal definition of “developmentally disabled,” but recommended the following:

While the appellant does not qualify for services in the MR/DD system, as determined by the Region 6 OCDD, the undersigned Administrative Law Judge concurs with all 5 recommendations of Dr. Bamburg in his psychological evaluation. Specifically, the appellant needs services designed for mental illness, rather than services designed for mental retardation/developmental disability. The appellant needs aggressive psychiatric monitoring to appropriately address her continuing behavioral problems. (Emphasis added).

Pinecrest did not address the administrative law judge’s recommendation regarding Amy’s need for services designed for mental illness or her need for aggressive psychiatric monitoring, nor did the director attempt to locate a State facility which would be better equipped to render medical services tailored to Amy’s condition. Instead, in July 2006, Pinecrest notified Reverend and Mrs. Hall that Amy would have to be released from the State facility and brought home because she did not meet the requirements of the Mental Retardation/Developmentally Disabled | (¡program. In desperation, the Halls returned to district court. On September 28, 2006, the district court signed an Order maintaining Amy in the custody of the State and ordered her continued placement at Pinecrest for observation, evaluation and placement. The State now appeals, asserting the district court erred in signing an Ex Parte Order which did not allow the State an opportunity for a hearing. The State also contends under the Administrative Procedure Act, La. R.S. 49:950, any review of its determination of eligibility is limited in scope. We disagree with the State’s position.

LAW AND DISCUSSION

In determining its obligation to retain custody of Amy, the State directs our attention to the Louisiana Developmental Disability Law, La.R.S. 28:451.1. This statute establishes an office for citizens with developmental disabilities and is intended to provide services to allow individuals with “developmental disabilities to exert control and choice over their own lives, and fully participate in and contribute to their communities through full integration and inclusion” in society. La.R.S. 28:451.1. Developmental disability is defined as an “intellectual or physical impairment” which results in “substantial functional limitation” in three or more areas of major life activity (self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, and economic self-sufficiency) and is not attributed solely to mental illness. La.R.S. 28:451.2(12). We find this statute inapplicable to a determination of the State’s responsibility for the continued custody and medical treatment of Amy. The fact that Amy does not fit the definition of “developmentally disabled” is not relevant to these proceedings.

The irrefutable medical evidence presented at trial, together with the testimony of her parents, establishes that Amy suffers “from serious mental illness which contributes or causes [her] to be dangerous to [herself] or others or to be gravely ^disabled.” La.R.S. 28:54(D)(l)(a). Amy is currently in the custody of the State following a judicial determination under this statute, and the State is bound by the judgment committing her, involuntarily, to Pinecrest until such time as the director of the State facility, at which she is housed, certifies that it is “medically appropriate” to release her based upon a determination that she no longer represents a threat to herself or society at large or that she can be conditionally released subject to certain terms and conditions. La.R.S. 28:56(0, La.R.S.28:56(G)(l). There was no such certification by the director in this case.

Moreover, the subject of the administrative determination was not germane to the issue of Amy’s continued need for placement because of her serious threat to herself and society. The State’s mistakenly relied on the administrative law judge’s determination that Amy does not meet the legal definition of “developmentally disabled,” as its justification for her release from the custody of the State. The administrative law judge did not recommend that Amy’s be released from the custody of the State. In fact, the administrative law judge recommended Amy receive “services designed for mental illness” and that she be aggressively monitored “to appropriately address her continuing behavioral problems.” There was no need for the Halls to appeal the administrative law judge’s determination of Amy’s ineligibility for services under the Mental Retardation statute. When the facility notified the Halls of its intent to release Amy, the Halls went back to the district court. The district court ordered that Amy be retained at the State facility for “evaluation and placement.” We find the trial court’s decision to issue the Order in September 2006 for the continued commitment of Amy was appropriate.

This ruling does not leave the State without recourse. It may petition the court and request a hearing to determine Amy’s continued need for placement or the State | Rmay exercise its statutory authority to release Amy, but only after the director certifies that she no longer represents a danger to herself or others or that she is capable of safely residing in the custody and care of her father or other caretakers subject to certain specified or special conditions. Additionally, the State may request that Amy be transferred to another State facility better able to treat her condition. Accordingly, we affirm the Order of September 28, 2006 continuing Amy’s commitment to Pinecrest Developmental Center.

The Louisiana Mental Health Law, La.R.S. 28:1, et seq., places responsibility on the State to retain custody of individuals who have been adjudicated to be a danger to themselves or others. These statutory provisions were enacted to protect the public from harm and to administer medical treatment to those individuals in dire need of help and confinement. When an individual, suffering from mental illness which causes that person to be a danger to himself or others, “slips through the cracks” and is released to wander freely, the public danger and potential harm can be catastrophic. Louisiana’s statutory scheme is designed to provide needed care to the mentally ül and to prevent them from harming themselves or members of the public at large. In this case, the responsibility for Amy’s continued commitment and medical treatment rested squarely with the State until such time as a determination is made by the district court or the director of the facility that it is “medically appropriate” to return her to society.

DECREE

Based on the foregoing review of the record, we affirm the district court Order of September 28, 2006. All costs of this appeal are assessed against the State of Louisiana, Department of Health and Hospitals.

AFFIRMED.

GENOVESE, J., dissents and assigns written reasons.

GENOVESE, J.,

dissents and assigns the following reasons.

11 This case indeed involves an unfortunate set of facts and circumstances; nevertheless, due process of law is paramount and cannot be excused. The undisputed facts in the record clearly indicate that the trial court, without a contradictory hearing, signed an ex parte order overruling an administrative law judge’s decision in complete disregard and in violation of the Louisiana Administrative Procedures Act as set forth in La.R.S. 49:950, et seq. The majority in this case affirms the trial court’s actions, which is tantamount to a circumvention and evisceration of the Louisiana Administrative Procedures Act. Since the Halls failed to appeal the administrative law judge’s decision, that decision is final. In fact, without any appeal of the administrative law judge’s decision, this case should not have even been before the district court. Consequently, I respectfully dissent from the majority and would vacate the district court order and reinstate the administrative law judge’s decision.

      . Mrs. Hall has since died of pancreatic cancer, leaving Reverend Hall alone to handle this matter.

      . At this point, Amy had been interdicted and her father, Reverend Hall, was named as curator. The Halls assert they were not represented by counsel at the administrative hearing.


text:
    Melissa Ann WHITTINGTON (Formerly Stracener) v. Chester STRACENER.
    No. 07-191.
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2007.

      David L. Wallace, Attorney at Law, DeRidder, Louisiana, for Plaintiff/Appellant, Melissa Ann Whittington.
    Martha Ann O’Neal, O’Neal and Leavoy, DeRidder, Louisiana, for Defendant/Appel-lee, Chester Stracener.
    Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

| .STATEMENT OF THE CASE

Melissa Ann Whittington appeals the judgment of the trial court granting domiciliary custody of her two minor sons to their father, Chester Stracener. For the reasons assigned below, we affirm the decision of the trial court.

STATEMENT OF THE FACTS

Melissa and Chester Stracener were married for fourteen years and are the parents of four children, two of whom, Joseph (age 13) and Dustin (age 11) are still minors. At the time of the divorce, a consent judgment was entered granting the parties joint custody and naming Melissa as the domiciliary parent. Chester was granted visitation on alternating weekends, holidays and summer vacations. Both parents lived in the DeRidder area and even after being transferred to Texas by his employer, Chester continued weekend visitation with his children. In April 2005, Chester’s employer, Nabors Drilling USA, transferred him to Junction, Colorado. The two minor children visited him at his new home over the summer and currently his older son resides in Colorado.

In August 2005, Chester learned Melissa and her husband, Marlin Whittington, had been arrested on charges of possession of methamphetamine. Drug paraphernalia was found in the family home and drugs were found in Marlin’s truck. Chester became concerned for the well-being and safety of the two minor children, and filed a rule for a change in domiciliary custody. At the time, Dustin, by verbal agreement, had been living with his father and attending school in Colorado. A hearing on the rule was held on August 10, 2006. The trial court found the arrest of Melissa, and her husband, was a material change in circumstances and based on the evidence presented, it was in the best interest of Joseph and Dustin to award domiciliary custody to Chester. The trial court stated:

lalf the Court leaves custody with the primary care giver in this case, it will be electing to leave the children in an environment that the Court believes quite possibly involves drugs and would expose the children to drugs.
[T]his Court concludes on the basis of the evidence presented that the apparent drug use in the home where the children would reside amounts to a compelling reason. The award of custody will be joint to the mom and dad with the father as domiciliary custodian.

Melissa appeals the decision of the trial court. We affirm.

LAW AND DISCUSSION

It is well established a “trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses” and its “determination ... will not be disturbed unless there is a clear abüse of discretion.” Hawthorne v. Hawthorne, 96-89, p. 12 (La. App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365. When “the original custody decree is a stipulated judgment, such as when the parties consent to a custodial arrangement, and no evidence of parental fitness is taken, the heavy burden of proof enunciated in Bergeron [v. Bergeron, 492 So.2d 1193 (La.1986)] is inapplicable.” Hensgens v. Hensgens, 94-1200, pp. 5-6 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, 52, writ denied, 95-1488 (La.9/22/95), 660 So.2d 478.

In this case, the original joint custody agreement between Melissa and Chester was a consent decree, not a considered decree. In order to change domiciliary custody, Chester bears the burden of proving: (1) a change in circumstances affecting the welfare of the children has occurred since the original decree; and (2) the proposed modification is in the best interest of the children. Hensgens v. Hensgens, 94-1200, (La.App. 3 Cir.), 653 So.2d 48, unit denied, 95-1488 (La.9/22/95), 660 So.2d 478.

In support of his position, Chester presented the testimony of Lieutenant Craig Richard with the DeRidder Police Department, Narcotics Task Force. Lieutenant | ¿Richard testified he searched the home of Melissa and Marlin Whittington pursuant to an arrest. He stated Marlin was involved in a traffic stop where a large quantity of methamphetamine was found in his truck. In the home, he found a smoking pipe, a spoon with residue, two sets of scales and multiple bottles of butane lighter fuel. He explained the significance of the seized items: “We have in the past when we’ve seen a lot — with the methamphetamine use — they use that for the torches and the small torches and butane lighter to produce high heat to melt the product for use as injections or to melt it down in a spoon or other metal substance.” Melissa admitted “methamphetamine use in the past; but she was not hot at that time.” When asked for a urine sample, Melissa refused to produce one and “admitted to dipping the toilet water and not providing a sample.” Officer James Lawrence Halbert, a narcotics investigator with the DeRidder Police Department, testified he received a report Marlin was selling methamphetamine out of his home and both Marlin and Melissa were users.

Significantly, the two major children of Melissa testified against their mother. Joshua stated he has seen his mother and step-father use drugs when the two younger children were present in the house. He has, in fact, used drugs with his mother and has witnessed her use crystal meth recently. He testified his mother cannot control Joseph. He is thirteen years old, always in trouble, and does poorly in school. “He’s just bad. I mean, there is no way around it. He misses school. I mean, he is just always getting into trouble.” Although, Joshua is currently on probation, he is living in Colorado near his father and is employed by Patterson Drilling. Joshua testified his father’s home would provide a more stable, structured environment for Joseph. Left to his mother’s care, Joshua believes Joseph is “probably going to end up like [he] ... did,” not finishing school and getting arrested.

Samantha Stracener, Melissa’s oldest child, believes her mother can no longer 1 r,control Joseph and he would benefit by living with Chester. She stated: “[M]y momma has done everything she can for him, and I think daddy needs to try.”

The testimony indicates Joseph was enrolled at DeRidder Junior High. He was not attending school on a regular basis, was failing four subjects and received six in school suspensions for conduct. As a result of his continued absences and his poor grades, Joseph was retained in the seventh grade. He did not go to summer school. At one point, Melissa removed him from school and was attempting to home-school him. When she received the petition for a change in custody, she re-enrolled him in South Beauregard High School. There was no improvement in his behavior or his attendance. Marlin Harold Ramsey, the principal at South Beauregard High School testified that in a three month period Joseph missed fourteen days of school. The trial court found: “The school record of Joseph is terrible and it is a negative factor for the mom’s continued custody. She allowed Joseph to miss much to much school without cause.”

Chester testified he received calls from Samantha and from Melissa’s sister. They both believed Melissa was taking drugs. He then saw the arrest report in the Beauregard News. Chester is employed by Nabors Drilling USA in Colorado as a drilling superintendent. He works regular hours and is called out at night a few times a month. His wife is a nurse. Chester feels Joseph may need counseling to get him back on track. Dustin had been living with him, attending school and doing very well.

When questioned regarding her arrest and suspected drug use, Melissa chose to exercise her Fifth Amendment rights. She admits Joseph does have problems at school and he is hard to control. Dustin has always done very well in school and is not a discipline problem. Melissa does not want to lose domiciliary custody of her boys. She testified: “I have raised my kids primarily myself for the past ten years.”

| fiThe testimony of the police officers, Melissa’s two adult children, and Melissa’s suspected drug use and arrest on charges of possession of methamphetamine all support the trial court’s finding that a material change in circumstances occurred in this case and reassessment of domiciliary placement of the minor children in the mother’s home was warranted. We are also satisfied this evidence coupled with Joseph’s behavioral problems and his poor school record, supports the trial court’s decision to designate Chester as the domiciliary parent of the boys. The trial court apparently concluded Chester’s home will provide a more stable and structured environment for both boys giving them a chance to become educated and productive individuals. Accordingly, we affirm the decision of the trial court.

DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court. All costs of this appeal are assessed to Melissa Ann Whittington.

AFFIRMED.


text:
    Mary Knippers RIVERS, etc. v. Dwayne J. BROUSSARD, et al.
    No. 2006-1543.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 2007.

      Dwayne Broussard, Patterson, LA, In Proper Person.
    Laura L. Picard, Assistant Attorney General, Alexandria, LA for Appellee State of Louisiana, Through DOTD.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS and MICHAEL G. SULLIVAN, Judges.
   COOKS, Judge.

I,The plaintiff-in-reconvention, Dwayne Broussard, appeals the trial court’s grant of motions for summary judgment in favor of both the State of Louisiana, through the Department of Transportation and Development, and Herman Love, Chief of Police of the town of Florien. For the following reasons, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

On June 27, 2003 at about 10:00 a.m., Dwayne Broussard was traveling southbound on Louisiana Highway 171 from Many, Louisiana toward Leesville, Louisiana. That point on Hwy. 171 has only one lane northbound and one lane southbound. Mr. Broussard approached a road construction site beginning at a right hand curve in the road, which included cement barricades along his left side of the road. There was a shoulder area on Mr. Brous-sard’s right hand side of the road. The posted speed limit was forty-five miles per hour.

As he approached the curve, Mr. Brous-sard stated he saw two vehicles ahead; a police vehicle and another vehicle ahead of the police car. The record revealed the police vehicle was operated by Herman Love, Chief of Police of the town of Flo-rien. Chief Love had pulled over a vehicle driven by Noyce Brown, and was in the process of issuing a traffic citation when Mr. Broussard came upon the scene.

Mr. Broussard stated his lane of travel had a white fog line at the right edge, with a gravel shoulder thereafter. According to Mr. Broussard, the police vehicle had its front tires in the gravel and its left rear tire in the southbound lane, with the bumper approximately two feet into the travel lane. The police vehicle had its overhead lights activated. Mr. Broussard stated that because of a curve in the road, he could not tell until he was approximately 75 feet away that the police vehicle was | ¡^partially blocking his lane, and that people were standing between the vehicles. Mr. Broussard alleged that he took evasive action, moving to his left, to avoid hitting the police vehicle. While avoiding the police vehicle, he immediately thereafter collided with a vehicle driven by Mary Knip-pers Rivers (and owned by her employer). Mr. Broussard acknowledged he was looking to the right at the police bumper and the people standing in the shoulder area as he passed. Mrs. Rivers was unable to avoid the accident due to the barriers on the north bound shoulder area.

Mrs. Rivers filed a Petition for Damages against Mr. Broussard, his insurer, the State of Louisiana, through the Department of Transportation and Development (hereafter DOTD), and the underinsured automobile insurance carriers, which covered her personal vehicle and her employer’s vehicle. The petition alleged Mr. Broussard negligently caused the accident by “crossing the center line of the highway and [striking] the vehicle that Mrs. Rivers was diving head-on.” Mrs. Rivers’ petition also alleged as a cause of the accident that DOTD was negligent in engineering the construction zone and in the placement of the concrete barriers in the area of the accident.

Mr. Broussard filed a reconventional demand against DOTD, the Sheriff of Sabine Parish, Mrs. Rivers, Progressive Security Insurance Company (the underinsured auto insurer of Mrs. Rivers), and Fireman’s Fund Insurance Company, the insurer of the vehicle Mrs. Rivers was operating. The reconventional demands against the Sheriff of Sabine Parish, Mrs. Rivers, Progressive, and Fireman’s were dismissed by consent of Mr. Broussard.

Mr. Broussard subsequently filed a second reconventional demand against Sheriff Love alleging he was negligent in parking his patrol car partially on the travel portion of the roadway.

| (¡Motions for summary judgment were filed by DOTD and Sheriff Love against Mr. Broussard, with a hearing on said motions set for May 16, 2006. Mr. Brous-sard filed a motion to continue the hearings “until discovery is complete.” The district court denied the request to reschedule after discovery was complete, granting only a limited continuance to July 12, 2006.

At the hearing on July 12,1996, the trial court granted both DOTD’s and Sheriff Love’s motions for summary judgment, and dismissed Mr. Broussard’s reconven-tional demand against these parties. Mr. Broussard has appealed, contending the trial court erred in granting the motions for summary judgment.

ANALYSIS

The proper standard of review for an appellate court considering summary judgment is de novo. “It is well established that a summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Palma, Inc. v. Crane Servs. Inc., 03-614, p. 3 (La.App. 3 Cir. 11/5/03), 858 So.2d 772, 774 (citations omitted). The Louisiana Supreme Court has said the following in determining when a fact is material:

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[F]acts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. [Citations omitted.]

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751.

\J. SUMMARY JUDGMENT IN FAVOR OF DOTD.

In order for a party to recover damages against a public entity like DOTD, it must prove that (1) the public entity had ownership or control of the thing which caused the damage; (2) the thing was defective in that it created an unreasonable risk of harm; (3) the public entity had actual or constructive knowledge of the defect and failed to take remedial measures within a reasonable time; and (4) causation. Sudduth v. State, DOTD, 619 So.2d 618 (La.App. 3 Cir.), unit denied, 629 So.2d 349 (La.1993). DOTD argued below that Mr. Broussard could not prove any defect in the roadway created an unreasonable risk of harm.

Mr. Broussard alleged in his pleadings that the roadway was unsafe because concrete barriers had been placed on it, which prevented Mary Knippers Rivers from pulling over and avoiding the accident. However, the trial court found Mr. Broussard provided no evidence that the concrete barriers created an unreasonable risk of harm to the motoring public. The court noted that the mere allegation that the barriers rendered the highway unsafe was unsupported and merely speculation. Proof which establishes only a possibility, speculation, or unsupported probability does not suffice to establish a claim. Todd v. State, through Social Services, 96-3090 (La.9/9/97), 699 So.2d 35. Further, the jurisprudence provides that DOTD’s standard of care at highway construction areas is lower than that required on a highway not under construction. Jones v. State, through DOTD, 478 So.2d 691 (La. App. 3 Cir.1985), unit denied, 480 So.2d 743 (La.1986) Hardenstein v. Cook Construction, Inc., 96-829 (La.App. 1 Cir. 2/14/97), 691 So.2d 177, unit denied, 95-686 (La.4/25/97), 692 So.2d 1093; Alford v. Estate of Zanca, 552 So.2d 7, 12 (La.App. 5 Cir.1989). The Courts have long recognized the necessity of highway construction work and that hazards will regularly exist during the course of construction. Huddleston v. Ronald Adams Contractor, Inc., 95-987 (La.App. 1 Cir. 2/23/96), 671 So.2d 533; Golden v. Madden Contracting Company, Inc., 469 So.2d 1039 (La.App. 2 Cir.), unit denied, 475 So.2d 363 (La.1986).

Our review of the record shows there was no evidence, other than speculation, that any defect in the road existed. Mr. Broussard presented no expert testimony that the construction area presented an unreasonable risk of harm, nor did he present any evidence that DOTD violated any standards at the construction site. Thus, we find the trial court did not err in granting DOTD’s motion for summary judgment finding there are no genuine issues of material fact bearing on DOTD’s liability and as a matter of law it is not liable.

II. SUMMARY JUDGMENT IN FAVOR OF CHIEF LOVE.

We find the trial court erred in granting the summary judgment in favor of Chief Love. Mr. Broussard stated in his deposition that Chief Love’s vehicle was partially blocking his lane of traffic, causing him to veer his vehicle to the left, which was a proximate cause of the accident. Chief Love, through counsel, argued there was no evidence that his vehicle was partially in the lane of travel, other than Mr. Broussard’s own testimony. We note the position of Sheriff Love’s vehicle was not noted by Trooper Smith in his accident report, as the vehicle had been moved prior to his arrival at the scene. The position of Sheriff Love’s vehicle is a material fact at issue which should have precluded the grant of summary judgment.

Therefore, we find a material issue of fact exists as to whether Chief Love’s police vehicle was partially blocking Mr. Broussard’s lane of traffic, which requires full adjudication. Therefore, summary judgment is not appropriate in this instance.

DECREE

For the above reasons, the trial court’s judgment granting DOTD’s motion for | ^summary judgment is affirmed. Based on this court’s determination that genuine issues of material fact exist, we reverse the trial court’s grant of Chief Herman Love’s motion for summary judgment and remand for further adjudication. Costs of this appeal are assessed equally to appellant, Dwayne Broussard and appellee, Chief Herman Love.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


author: MICHAEL E. KIRBY, Judge.

text:
    Pamela HART, Individually and as Administratrix and on Behalf of Her Father, Walter W. PARK v. Frank CRUZ, M.D., et al.
    No. 2007-CA-0298.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 25, 2007.

      Jack W. Harang, Jack W. Harang, APLC, Metairie, LA, for Plaintiff/Appellant.
    Paul M. Batiza, Batiza Godofsky & Schroeder, Metairie, LA, for Defendants/Appellees.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   MICHAEL E. KIRBY, Judge.

| t Plaintiff, Pamela Hart, individually and as administratrix of the Estate of Walter W. Park, appeals the trial court judgment granting summary judgment in favor of defendant, Frank Cruz, M.D., and dismissing plaintiffs action against Dr. Cruz. We affirm.

On May 11, 2005, plaintiff filed a medical malpractice claim against Dr. Cruz. In her petition for damages, plaintiff alleged that Dr. Cruz treated her father, Walter Park, primarily for respiratory problems, from the early 1990’s until November 2002. In November 2002, Mr. Park sought treatment from Dr. Thomas Nuttli, and was advised by Dr. Nuttli that he had emphysema/chronic obstructive pulmonary disease (“COPD”) and asthma in the advanced stages. Plaintiff alleges that Dr. Cruz was negligent in his failure to diagnose, treat and inform Mr. Park of these medical conditions. Plaintiff claims that as a result of Dr. Cruz’s negligence, Mr. Park’s condition was diagnosed at such an advanced stage that treatment was ineffective and abandoned. Mr. Park died as a result of pulmonary disease on ^January 19, 2003, and plaintiff alleges that his death was the result of violations of the standard of care on the part of Dr. Cruz.

On May 17, 2005, Dr. Cruz filed an answer to plaintiffs petition. On June 20, 2005, Dr. Cruz filed a motion for summary judgment. In support of his motion, Dr. Cruz filed a memorandum. He also filed an earlier memorandum submitted on his behalf to the medical review panel, and the opinion of the medical review panel finding that Dr. Cruz did not violate the standard of care in his treatment of Mr. Park. The appeal record does not include any pleadings or other documentation offered by plaintiff in opposition to Dr. Cruz’s motion for summary judgment. Following a hearing on October 13, 2006, the trial court rendered judgment on October 24, 2006 granting Dr. Cruz’s motion for summary judgment, and dismissing plaintiffs claim against Dr. Cruz. Pursuant to Louisiana Code of Civil Procedure article 1915, the trial court also designated its judgment as final, finding that there is no just reason for delay. Plaintiff now appeals the trial court judgment.

On appeal, the plaintiff argues that the trial court erred in granting Dr. Cruz’s motion for summary judgment. Specifically, plaintiff claims that the trial court erred when it found that the burden of proof had shifted to plaintiff because the only evidence presented by Dr. Cruz in support of his motion for summary judgment was a memorandum and an unsworn and uncerti-fied copy of the opinion of the medical review panel. Plaintiff argues that the evidence presented by Dr. RCruz was neither competent nor admissible under the rules set forth in La. C.C.P. article 966 and 967.

Plaintiff cites the First Circuit case of Simmons v. Berry, 98-0660 (La.App. 1 Cir. 12/22/00), 779 So.2d 910, in support of her argument that a copy of an opinion of a medical review panel that is not attached to an affidavit from a member of the panel or the sworn deposition testimony of one of the panel members does not have sufficient evidentiary quality in a summary judgment proceeding to shift the burden of proof to the adverse party to set forth specific facts showing that there is a genuine issue of fact for trial. However, as Dr. Cruz points out in his appeal brief, this Circuit has recently reached the opposite conclusion on this same issue in the case of Blankenship v. Ochsner Clinic Foundation, 06-0242 (La.App. 4 Cir. 8/16/06), 940 So.2d 12, writ denied, 06-2291 (La.11/22/06), 942 So.2d 560.

In the Blankenship case, as in the instant case, the party filing the motion for summary judgment submitted the opinion of the medical review panel without any supporting affidavits as the only evidence in support of the motion. The trial court granted the motion. The adverse party appealed, arguing that because the evidence submitted in support of the motion was not in the form of a deposition or affidavit, it was insufficient to establish a prima facie case that there were no genuine issues of material fact. This Court rejected that argument, citing the case of Williams v. Memorial Medical Center, 03-1806 (La.App. 4 Cir. 8/17/04), 870 So.2d 1044, which held that the medical review panel’s opinion is admissible as expert 14evidence on a motion for summary judgment. Blankenship v. Ochsner Clinic Foundation, 06-0242, p. 4 (La.App. 4 Cir. 8/16/06), 940 So.2d 12, 15, writ denied, 06-2291 (La.11/22/06), 942 So.2d 560. In Blankenship, this Court noted that in the Williams case, this Court cited La. R.S. 40:1299.47(H) as a basis for admitting a medical review panel’s opinion in a summary judgment proceeding. Id. La. R.S. 40:1299.47(H) provides that the “report of the expert opinion reached by the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant....”

In light of the above-cited controlling jurisprudence from this Court, we find that the evidence offered by Dr. Cruz in support of his motion for summary judgment was sufficient to shift the burden of proof to plaintiff to set forth specific facts showing that there is a genuine issue of fact for trial. The record on appeal does not contain any pleadings or evidence offered by plaintiff in opposition to the motion for summary judgment. Accordingly, we find no error in the trial court’s granting of summary judgment in favor of Dr. Cruz.

For the reasons stated above, we affirm the trial court judgment.

AFFIRMED.

      . The trial court judgment and Dr. Cruz’s brief both mention medical reports filed by the plaintiff, but the record does not include these items or anything else filed by plaintiff in opposition to the motion for summary judgment. Plaintiff states in her brief that she filed an opposition to the motion, but does not mention any other documentation filed by her. Additionally, plaintiffs arguments on appeal do not refer to evidence filed in opposition to the motion. As a court of record, we must limit our review to that which is in the record before us. Ventura v. Rubio, 2000-0682, pp. 3-4 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, 885.


author: PATRICIA RIVET MURRAY, Judge.

text:
    Charmaine R. JOHNSON v. John A. LANEY IV, Troy C. Laney, Deborah Burkart Gambino, Julie Raymond Bonanno and State Farm Fire and Casualty Insurance Company.
    No. 2007-CA-0237.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 25, 2007.
    Robert Angelle, Metairie, LA, and Michael G. Gaffney, New Orleans, LA, for Plaintiff/Appellee.
    Raymond C. Burkart, Jr., Law Offices of Raymond C. Burkart, Jr., L.L.C., Coving-ton, LA, for Defendants/Appellants.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR.).
   PATRICIA RIVET MURRAY, Judge.

| -i Defendants appeal the trial court’s granting of summary judgment in favor of the plaintiff, Charmaine Johnson, declaring that Ms. Johnson’s testamentary usu-fruct of her residence attached to insurance proceeds that were paid as a result of its damage by Hurricane Katrina, which rendered the house uninhabitable. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

Defendants John A. Laney, IV, and Troy C. Laney are the plaintiffs grandchildren, the minor children of her son, John Laney, III, who died in 1986. Defendant Deborah Gambino is the mother of John A. Laney, IV, and defendant Julie Bonnano is the mother of Troy C. Laney. In his will, John Laney, III, bequeathed to his mother, Charmaine Johnson, the usufruct of the land and improvements located at 751 Fil-more Avenue, where he was living with his mother at the time of his death. The naked ownership of the property was bequeathed to a trust for the benefit of Mr. Laney’s two minor sons, naming their respective mothers as trustees. Ms. Johnson was living in the home until Hurricane Katrina ^struck on August 29, 2005. Because of the severe damage done to the home by the hurricane, Ms. Johnson now lives in Houston.

State Farm provided insurance coverage (both homeowner’s and flood) for 751 Fil-more Avenue. On January 23, 2006, Ms. Johnson filed a petition for declaratory judgment seeking to have the court de-dare that the insurance proceeds paid by State Farm to compensate for the loss of and/or damage to the home and its contents were subject to her usufruct. State Farm had issued four checks, one covering the building and one covering its contents under each of two policies — -the flood policy and the homeowner’s policy. All four checks were made payable to Ms. Johnson as usufructuary, Ms. Gambino as trustee for John A. Laney, IV, and Ms. Bonnano as trustee for Troy C. Laney. On May 1, 2006, the trial court ordered that these checks be endorsed by all payees and deposited into the registry of the court pending the resolution of the lawsuit.

Having filed an answer to the plaintiffs petition in April, the defendants on May 8, 2006, filed a “Reconventional and Third Party Demand.” In the reconventional demand, defendants asserted that plaintiff is liable to them for violating the 1990 court-approved agreement that settled the succession of John Laney, III. In essence, defendants claimed Ms. Johnson had mismanaged funds in a certain “controlled” bank account of which she is usufructuary and they are the naked owners, and demanded that the trial court order that she render an accounting of her usufruct. Defendants also alleged that Ms. Johnson had abused Rher usufruct over movables, specifically firearms, located at 751 Filmore Avenue, by failing to file an insurance claim regarding their loss. Defendants further alleged that plaintiffs abuse of her usufruct is cause for the court to order that the usufruct be terminated or, alternatively, to order the usufructuary to post security to ensure she will take appropriate corrective measures within a period of time fixed by the court. Finally, in their third party demand, defendants alleged that Chase Investment Services Corporation (where the bank account is maintained), is liable to them for recommending investments to the plaintiff and for permitting her to make unauthorized withdrawals from the account in violation of the settlement agreement.

On June 9, 2006, Ms. Johnson filed a motion for summary judgment arguing that there was no genuine issue of fact regarding the claims raised in her original petition, that her usufruct attached to the insurance proceeds as a matter of law, and that therefore she was entitled to the State Farm checks deposited into the court’s registry. On July 18, 2006, the trial court, after hearing the matter, rendered summary judgment in favor of the plaintiff, citing La. C.C. art. 617 as the basis for its holding that the plaintiffs usufruct attached to the insurance proceeds. The trial court then ordered that the funds be disbursed to Ms. Johnson, “who shall hold |4them in usufruct subject to the rights of the naked owners.... ” Defendants appeal this judgment.

APPLICABLE LAW

The appellate court reviews summary judgments de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Shambra v. Roth, 04-0467 (La.App. 4 Cir. 9/29/04), 885 So.2d 1257. Accordingly, a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

DISCUSSION

In the instant case, there are no facts in dispute. In their answer to the plaintiffs petition for declaratory judgment, the defendants admitted every allegation of fact asserted by the plaintiff. The only allegations defendants denied are those in Paragraphs 16 and 19, which stated conclusions of law. In those two paragraphs, respectively, the plaintiff asserted that she, as usufructuary, was entitled to the insurance proceeds and asked that the court render judgment declaring her right to them. Similarly, the plaintiffs motion for summary judgment included a statement of undisputed facts supported by documentary evidence, deposition testimony, and an affidavit. In opposition to the motion, | .^defendants presented only a memorandum asserting legal arguments and a copy of the aforementioned agreement settling the succession of John Laney, III, which agreement actually supports the plaintiffs factual assertions.

Thus, the sole issue before this court is whether, as a matter of law, the plaintiffs usufruct of 751 Filmore Avenue attaches to the proceeds of the homeowner’s and flood policies covering the property. We hold that it does.

La. C.C. art. 617, entitled “Proceeds of Insurance” states:

When proceeds of insurance are due on account of loss, extinction, or destruction of property subject to usufruct, the usufruct attaches to the proceeds. If the usufructuary or the naked owner has separately insured his interest only, the proceeds belong to the insured party.

On appeal, the defendants argue that this article does not apply to the instant situation for two reasons: (1) the plaintiff failed to prove that the property subject to the usufruct was totally destroyed; and (2) the undisputed facts indicate that they separately insured their interest within the terms of Article 617. We address each argument in turn.

First, defendants argue that Ms. Johnson failed to introduce any evidence to prove that the insured movable and immovable property was lost, extinct or destroyed as required by Article 617. Citing La. C.C. art. 613 as authority, they further assert that “loss, extinction or destruction” as used in the Civil Code means “total loss, extinction or destruction.” La.C.C. art. 613 states:

The usufruct of nonconsumables terminates by the permanent and total loss, extinction or destruction through accident or decay of the property subject to the usufruct.

Contrary to defendants’ argument, Article 613 does not purport to define the terms or phrase “loss, extinction or destruction” as used in the entire Civil Code. | ^Instead, the legislature has qualified those terms as used in that particular article by including the adjectives “permanent and total.” Plaintiff has never contended that Hurricane Katrina completely destroyed all the property subject to her usufruct, only that it damaged the house to the extent that it became uninhabitable. It is undisputed that the land upon which the house sits is still in existence. Therefore, Article 613 is not applicable to the instant situation, but Article 617 clearly is. Article 617 does not require the total loss or destruction of all the property subject to the usufruct, but rather the loss or destruction of at least some of the property, which loss is compensated for by insurance proceeds. Article 617’s declaration that the usufruct attaches to the insurance proceeds in this circumstance comports with several other companion Code articles that determine what happens to the usu-fruct of property in other, similar circumstances. See, e.g., La. C.C. art. 614 (When property is lost or destroyed by fault of a third person, the usufruct attaches to any claim for damages); La. C.C. art. 615 (When property changes form or is converted to money without any act of the usufructuary, the usufruct attaches to the new form of the property or to the money); La. C.C. art. 616 (When property is sold, the usufruct attaches to the proceeds of the sale). We therefore reject defendants’ first argument.

Defendants next argue that they are entitled to a portion of the insurance proceeds because they separately insured their interest (the naked ownership of the property) within the terms of Article 617. However, defendants presented no evidence indicating that they separately insured their interest. They argue that the premiums for the insurance were paid from the principal amount in the so-called “controlled” bank account, which they claim is their “separate property.” However, this assertion is contradicted by the written settlement agreement, which 17gives the plaintiff the usufruct over the account and the responsibility of paying the premiums. Moreover, defendants cite no authority for the proposition that their payment of the insurance premiums, even if such were proved, would equate to the separate insuring of their interest in the property.

The State Farm agent, Joseph Raymond, testified in his deposition that both the homeowner’s policy and the flood policy in effect at the time of Hurricane Katrina were originally purchased by John La-ney, III, during his lifetime. In 1990, pursuant to the agreement settling Mr. Laney’s estate, Mr. Raymond changed the name of the “insured” on each policy to read:

Charmaine R. Johnson, usufruct. This was a succession of John A. Laney, III, the property given to his mother. Please list as additional insureds the following: Deborah B. Gambino, trustee for John A. Laney, IV and Julie Raymond Bonnano, trustee for Troy C. La-ney.

Mr. Raymond further testified that none of the four defendants had ever approached him about insuring their naked ownership interest in the property in question; nor had any of them ever requested that he do so or filled out an application for insurance on said property.

The defendants presented no evidence to contradict Mr. Raymond’s testimony. Moreover, defendants cite no authority for the proposition that the mere inclusion of their names as additional insureds on the policies equates to the separate insuring of their naked ownership interest. Therefore, we reject defendants’ contention that they separately insured their interest in the property.

CONCLUSION

Accordingly, for the reasons stated, we find no error in the trial court’s granting of summary judgment declaring that the plaintiffs usufruct attaches to the insurance proceeds and ordering the disbursement of those funds to Ms. Johnson. |sWe therefore affirm the judgment of the trial court, and remand the matter to that court for further proceedings consistent with this opinion.

AFFIRMED AND REMANDED.

      . Ms. Johnson originally named State Farm as a defendant in her petition, but later she voluntarily dismissed her claim against State Farm in response to State Farm’s exception of no cause of action.

      . It is not completely clear from the recon-ventional demand which usufruct (the one over the bank account or the one over 751 Filmore Avenue, or both) defendants allege should be terminated.

      . We note that the defendants' allegations against Chase do not meet the criteria of a third party demand. See La. C.C.P. art. 1111. In actuality, defendants are naming Chase as an additional defendant to their re-conventional demand. See La. C.C.P. art. 1064.

      . The trial court signed the order of appeal, but did not certify the judgment as final pursuant to La. C.C.P. art. 1915(B). The record reflects that the trial court has retained jurisdiction over the reconventional demand. Because the granting of summary judgment has resolved all of the issues presented in the principal demand, the judgment is a final, appealable judgment pursuant to La. C.C.P. art. 1915(A)(3), without need of certification. See Jackson Nat. Life Ins. Co. v. Kennedy-Fagan, 03-0054, pp. 4-5 (La.App. 1 Cir. 2/6/04), 873 So.2d 44, 47-48, writ denied, 04-0600 (La.4/23/04), 870 So.2d 307.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Michael HOLLINS.
    No. 2007-KA-0114.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 25, 2007.

      Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Michael Hollins.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

| ,This appeal arises from Michael Hol-lins’ conviction and sentencing for the alleged distribution of a substance thought to be crack cocaine. Michael Hollins appeals asserting that the trial court imposed an excessive sentence. For the following reasons, we find that the sentence was not excessive and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 7, 2004, Detective Stacey Lebeau (“Detective Lebeau”) was working as an undercover officer in the area of the Florida Housing Development (“Development”). As Detective Lebeau turned her official vehicle from Desire Street onto North Dorgenois Street, she saw Michael Hollins (“Mr. Hollins”) riding a bicycle. Detective Lebeau asked Mr. Hollins if he had any “rock” for her, meaning crack cocaine. Mr. Hollins replied in the affirmative and told her to pull over. Mr. Hollins told Detective Lebeau that he had to go into the Development to get the drugs and indicated that she should follow. Detective Lebeau followed Mr. Hollins down North Dorgenois. Mr. Hollins allegedly told Detective Lebeau to pull over and wait for the crack cocaine. Detective Lebeau parked and waited while Mr. Hol-lins went into the Development, where she lost sight of him. Mr. Hollins returned to the passenger side of her car and Detective Lebeau gave him | ⅞$20. Mr. Hollins allegedly threw an object Detective Le-beau believed to be crack cocaine on her seat and then Mr. Hollins rode away. Detective Lebeau drove away and notified her backup team that she had completed the transaction. She noticed that the object that Mr. Hollins had given her, wrapped in plastic like a rock of crack cocaine, was a lima bean. Detective Le-beau later identified a photograph of Mr. Hollins as the person who sold her the lima bean represented to be crack cocaine. Detective Lebeau’s undercover vehicle videotaped and audiotaped her interaction with Mr. Hollins.

Detective Yussef Willoughby (“Detective Willoughby”), part of the surveillance team connected to the undercover operation, testified that he saw the transaction between Mr. Hollins and Detective Lebeau, and was able to hear the transaction through the microphone in Detective Le-beau’s car. In addition, Detective Wil-loughby testified that after Detective Le-beau drove off, he witnessed Mr. Hollins ride his bicycle back toward the Development. Detective Willoughby testified that he called for the takedown team that apprehended Mr. Hollins. He further testified that Detective Lebeau used marked money for the undercover operation. However, Mr. Hollins did not have marked money in his possession.

Detective Jeff Sislo (“Detective Sislo”), also a part of the takedown team, testified that Detective Willoughby directed him and his partner to the 3600 block of North Dorgenois, where they saw Mr. Hollins riding his bike through the Development. He testified that when Mr. Hollins saw the officer approaching in their unmarked but recognizable police car, Mr. Hollins dropped his bike and began running. Mr. Hollins ran around a building where another takedown unit followed him. Detective Sislo and his partner circled the building from the other direction, and they apprehended Mr. Hollins as he ran toward their car. Detective | ¡¡Sislo testified that Detective Willoughby drove by after they stopped Mr. Hollins and identified him as the man who conducted the transaction with Detective Lebeau. Detective Sislo arrested Mr. Hollins for distribution of crack cocaine. He stated that no money was found when the officers searched Mr. Hollins incident to his arrest.

The State of Louisiana charged Mr. Hol-lins with distribution of a substance falsely represented as crack cocaine. Mr. Hollins pled not guilty at arraignment. The parties stipulated that a police criminalist would testify that the lima bean Mr. Hol-lins gave Detective Lebeau tested negative for any controlled dangerous substance. While the first trial ended in a mistrial due to jury deadlock, a second jury found Mr. Hollins guilty as charged. The trial court sentenced him to serve thirty months at hard labor. The trial court denied Mr. Hollins’ motion to reconsider sentence and granted his motion for appeal. The State filed a multiple bill. However, the matter was reset several times, and the State withdrew the bill.

ERRORS PATENT

A review of the record reveals there are no patent errors.

EXCESSIVE SENTENCE

Mr. Hollins asserts that the trial court erred by imposing an excessive sentence. The jury found Mr. Hollins guilty of distribution of a substance falsely represented to be cocaine. The trial court could have imposed a maximum possible sentence of five years at hard labor and a fine of not more than $5,000. However, the trial court sentenced Mr. Hollins to serve thirty months at hard labor, half the possible sentence, and did not impose a fine.

In State v. Smith, 01-2574, pp. 6-7 (La.1/14/03), 839 So.2d 1, 4, the Louisiana Supreme Court set forth the standard for evaluating a claim of excessive I ¿sentencing:

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.5/22/95), 656 So.2d 973; State v. Batiste, 06-0875 (La.App. 4 Cir 12/20/06), 947 So.2d 810; State v. Landry, 03-1671 (La.App. 4 Cir. 3/31/04), 871 So.2d 1235.

In Batiste, this Court further stated:

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, resen-tencing is unnecessary even when there has not been full compliance Iswith 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.

06-0875, p. 18, 947 So.2d at 820.

Mr. Hollins’ sentence is not excessive in comparison to other sentences imposed for the same or similar offenses. In State v. Dugas, 527 So.2d 610, 613 (La.App. 3rd Cir.1988), the court upheld a maximum five-year sentence for distribution of a substance the defendant represented as cocaine. The defendant had prior convictions for aggravated battery (the probation for which had been revoked with his arrest on the present conviction), burglary, and marijuana possession, as well as arrests for aggravated burglary and theft. Id. at 612. Likewise, in State v. Ourso, 438 So.2d 1239, 1244 (La.App. 3rd Cir.1983), the court affirmed the defendant’s thirty-month sentence for attempted distribution of a substance falsely represented as a controlled dangerous substance. That defendant had a prior drug conviction. Id.

Mr. Hollins argues that the trial court should have ordered a presentence investigation to ascertain more about his background. However, as per La.C.Cr.P. art. 875, the trial court may request a presentence investigation, but a defendant has no right to demand that the court order one. See State v. Bell, 377 So.2d 275 (La.1979). In State v. Allen, 03-2156, pp. 13-14 (La.App. 4 Cir. 5/19/04), 876 So.2d 122, 130, this Court held that the trial court did not err by not ordering a presen-tence investigation where, as here, the defendant did not request one prior to sentencing and did not object at sentencing to the lack of such investigation.

In the case sub judice, Mr. Hollins argues that he was “entrapped” into selling Detective Lebeau the substance found to be a lima bean and should have been given a lesser sentence. However, Detective Le-beau asked Mr. Hollins if he had crack to sell. Mr. Hollins voluntarily led Detective Lebeau to the Development, told her where to wait, went into the Development, gave her the substance he represented as crack cocaine, and took her $20. The law does not differentiate because the object Mr. Hollins gave her was a lima bean; he represented to her that it was a rock of crack cocaine and sold it to her as such.

As in Ourso, Mr. Hollins has one prior drug conviction. At sentencing, the State noted that it would be filing a multiple bill against Mr. Hollins. The prosecutor stated that Mr. Hollins had a prior conviction for possession of heroin. The State then filed the multiple bill listing the prior conviction as # 450-887, in which Mr. Hollins pled guilty to possession of heroin. Mr. Hollins pled not guilty to the multiple bill, and the trial court reset the hearing on the bill. Yet, unlike in Ourso, Mr. Hollins did not receive the maximum sentence; instead, he received one-half the maximum sentence.

Although the trial court did not articulate the aggravating and mitigating factors it considered during sentencing, the record supports the basis for the sentence. The trial court was aware of the circumstances of Mr. Hollins’ case and was aware that he had a prior drug possession conviction. Mr. Hollins has not shown that the trial court abused its discretion by imposing an unconstitutionally excessive sentence. This claim has no merit.

J¿DECREE

Accordingly, we affirm Mr. Hollins’ sentence.

AFFIRMED.


author: ROLAND L. BELSOME, Judge. MURRAY, J.,

text:
    Theresa MATHIS v. J.A. MATHIS.
    No. 2006-CA-1589.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 25, 2007.

      John 0. Pieksen, Jr., John Pieksen & Associates, APLC, New Orleans, LA, and Ammon L. Miller, Jr., Law Office of Am-mon L. Miller, Jr., New Orleans, LA, for Plaintiff/Appellee.
    D. Douglas Howard, Jr., Stacey L. Miller, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 Defendant-Appellant, J.A. Mathis, appeals the trial court’s decision to deny sanctions, costs, or attorney’s fees. For the reasons that follow, we vacate this portion of the judgment and remand.

FACTS

After Appellant J.A. Mathis and Appel-lee Theresa Mathis were married, they relocated to Okinawa, Japan in 1997, where Appellant was stationed as an active duty marine. The couple lived in Okinawa for approximately nine years with their three minor children. In late 2005, Appellant and Appellee separated, and in March 2006, Appellant obtained an order from the Superior Court of Guam granting him temporary custody of the children pending a hearing (subject to liberal visitation by Appellee).

On March 31, 2006, Appellee then filed a Petition in Orleans Parish for Divorce and Injunctive Relief, Spousal Support, Rule for Child Support and ^Custody. In paragraph II of the petition, Appellee represented that “[vjenue is proper in this Court pursuant to LCCP art. 3941 because petitioner [Appellee] is domiciled in the Parish of Orleans, State of Louisiana.” (emphasis added). Noting that Appellee had filed for divorce in Louisiana, the Superior Court of Guam subsequently granted a Motion to Dismiss and Relinquish Jurisdiction filed by Appellee on June 14, 2006.

PROCEDURAL HISTORY

Appellee filed an ex parte Motion for Entry of Interim Emergency Custody Order in Civil District Court for the Parish of Orleans, which was granted on June 20, 2006 without a contradictory hearing, awarding sole custody to Appellee. The order further provided that Appellee must return to Okinawa by August 11, 2006, with the three children, or be held in contempt of Court.

In July 2006, Appellee filed an identical suit in Terrebonne Parish via different counsel. Subsequently, in August 2006, Appellant filed an Exception to Improper Venue and Sanctions and Attorney’s Fees in Orleans Parish, arguing that Appellee was not domiciled in Orleans Parish, and that counsel for Appellee had a duty to verify that representations made to him by Appellee were true pursuant to La. C.C.P. art 863. Appellant further argued that counsel for Appellee should be sanctioned for failing to perform a reasonable inquiry before certifying the pleadings, and that Appellant had incurred court costs and attorney’s fees associated with the litigation in Orleans Parish.

After a pretrial conference, a hearing was conducted on the Exception to Improper Venue and Sanctions and Attorney’s Fees on October 4, 2006. The trial court heard arguments from both parties and ultimately granted the Exception of ^Improper Venue, but denied the motions for sanctions and attorney’s fees. This appeal followed.

STANDARD OF REVIEW

This Court has held that a trial court’s judgment regarding sanctions under La. C.C.P. art. 863 is reviewed under the manifest error/clearly wrong standard:

Article 863 is intended only for exceptional circumstances and is not to be used simply because parties disagree as to the correct resolution of a legal matter. Fairchild, v. Fairchild, 580 So.2d 513, 517 (La.App. 4 Cir.1991). On appellate review, a trial court’s finding as to a sanctionable violation of C.C.P. art. 863 may not be disturbed unless the record furnishes no evidence to support the finding, or the finding is clearly wrong. Id., Loyola v. A Touch of Class Transp. Service, Inc., 580 So.2d 506 (La. App. 4 Cir.1991).

Green v. Wal-Mart Store No. 1163, 96-1124, (La.App. 4 Cir. 10/17/96), 684 So.2d 966, 969.

DISCUSSION

Although both parties have asserted several arguments in this case, the sole issue for review is whether the trial court committed manifest error by declining to award sanctions against Appellee when granting Appellant’s Exception of Improper Venue.

It is not disputed that Appellee in this case certified to the trial court that she was domiciled in Orleans Parish when, in fact, she was not. Louisiana Code of Civil Procedure Article 863(B) addresses the issue of accuracy with regard to pleadings, and provides:

Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is |4not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

La. C.C.P. art. 863(B)(emphasis added). Moreover, Louisiana Code of Civil Procedure 863(D) mandates that if an inaccurate certification is represented to the court, that sanctions be imposed:

If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.

La. C.C.P. art. 863(D)(emphasis added). While granting the Appellant’s exception of improper venue, however, the trial court determined that sanctions or attorney’s fees were not appropriate:

THE COURT:
Now, Mr. Howard, why do we have exceptions? We have them because sometimes lawyers make the wrong decision of where to file. So you have an exception.
MR. HOWARD:
I also have a sanctions motions [sic] and a motion for attorney fees. I do have a—
THE COURT:
I am denying them both. I am denying them both because there is nothing here that says his actions were sanctionable. Furthermore, Mr. Howard, as | Swas stated in the pretrial conference, he agreed to pull it, where you would not have had to come into court and argue this.

After further discussion, the trial court elaborated that sanctions were not reasonable with regard to counsel for Appellee’s conduct:

THE COURT:
Mr. Howard, I am not going to let you stand up here and continue to talk about Guam ... We signed [ ] ex parte communications that gave this woman her children, so he did not see them. But to say that the actions of this attorney is [sic] sanctionable and that he should pay you $6,500 and the Court $5,000, to me, it is not reasonable.
MR. HOWARD:
Then what is reasonable?
THE COURT:
Nothing. I don’t find his action as sanc-tionable.

Although a trial court’s findings are generally given great deference, in light of the mandatory language in La. C.C.P. 863(D) regarding sanctions, and because it is undisputed that the certification to the court that Appellee was domiciled in Orleans Parish was false, we find that the trial court committed manifest error in faffing to allow Appellant to set forth his case to the court regarding sanctions or attorney’s fees in this case.

Accordingly, because we are unable to determine, based on the information contained in the record, what, if any, sanction(s) would be appropriate in this case, |fiwe vacate the portion of the judgment denying Appellant’s Motion for Sanctions and Attorney’s Fees and remand the matter to the trial court for hearing on those issues.

VACATED IN PART AND REMANDED.

MURRAY, J., Concurs and Assigns Reasons.

MURRAY, J.,

Concurring.

|,1 concur in the vacating of the trial court’s judgment but for different reasons than those of the majority. I believe that sanctions are warranted under La. C.C.P. art. 863(D) because there is no dispute that Appellee, Ms. Mathis, was neither domiciled nor residing in Orleans Parish at the time her petition was filed, nor had she any intention of establishing a domicile there. Moreover, her petition, which seeks a custody order, neglects to mention that there was a temporary custody order already in place. Ms. Mathis’ failure to understand the meaning of the legal term “domicile” does not excuse her failure or her attorney’s failure to comply with the terms of article 863(B) regarding the verification of petitions.

I also concur in the remand of the matter to the trial court. However, I would remand for the sole purpose of having the trial court determine the extent of the sanctions that should be imposed in this case.

Accordingly, I respectfully concur in the result reached by the majority.

      . Guam was the closest United States jurisdiction to Okinawa.

      . Prior to the hearing date on the Exception of Improper Venue, counsel for Appellee offered to dismiss the Orleans Parish proceeding voluntarily; however, counsel for Appellant refused.