author: Judge, LEON A. CANNIZZARO, Jr. JONES, J.,

text:
    STATE of Louisiana v. Christopher CALENDER.
    No. 2006-K-0291.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 20, 2006.
    Eddie J. Jordan, Jr., District Attorney, Rhonda Goode-Douglas, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for State of Louisiana.
    D. Majeeda Snead, Supervising Attorney, Julia Autin, Student Practitioner, Stephanie Bridges, Student Practitioner, Loyola Law Clinic, New Orleans, LA, for Defendant, Christopher Calender.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge LEON A. CANNIZZARO, Jr.).
   Judge, LEON A. CANNIZZARO, Jr.

| ^his case involves a supervisory writ application by the State of Louisiana. The defendant, Christopher Calender, was indicted for the second-degree murder of Renard Carter. At issue in the State’s writ application is whether the trial court judge correctly ruled that the statements made by Mr. Carter that Mr. Calender was the person who shot him were not admissible under the dying declaration exception to the hearsay rule.

Mr. Carter was shot at the housing project where he lived. He suffered gunshot wounds to his chest, back, leg, and arm.

According to the testimony of Renell Carter, Mr. Carter’s sister, she arrived on the scene of the shooting shortly after her brother was shot. She testified that she asked him who had shot him, and he said that Chris shot him. She further asked whether a person she knew named Chris was the Chris who had shot him, and he said that it was the Chris who was associated with Gee, a nickname for Anthony Adams. Mr. Calender, who uses the name Chris, was subsequently identified by eyewitnesses to the shooting as the person who shot Mr. Carter.

|2Mr. Carter’s cousin, Natasha Dixon, also testified that Mr. Carter identified his assailant as “Chris that stay on the third floor right there [of the housing project]” and said that “Geek that stay on the second floor [on the housing project]” had given Chris the gun that was used in the shooting. Ms. Dixon testified that she ran to her cousin as soon as she heard the gunshots. She saw that he was bleeding, and right after Mr. Carter told Ms. Dixon who had shot him, he “went to praying.” She .testified that Mr. Carter “said his Our Father prayer.” Ms. Dixon prayed with Mr. Carter, and she said that “[h]e asked the Lord to come into his heart and for to cleanse him, forgive him for his sins.” She further stated that he was on his knees with “the whole project” holding hands and praying around him. Ms. Dixon also testified that she thought “my cousin was going to make it because he was aware.” She said that he was “real alert” until we got to the hospital.

New Orleans Police Department Detective Claude Nixon met with Mr. Carter at the hospital. Detective Nixon testified that Mr. Carter told him that Chris had shot him. He was unable to provide additional information because of “[t]he life saving procedures that were being employed.” Detective Nixon testified that Mr. Carter was in “extreme pain and agony,” that he “had a breathing apparatus on,” and that he was “unable to really move his arms real well because of the gunshots.”

La. C.E. art. 804(B)(2) provides that “[a] statement made by a declarant while believing that his death was imminent, concerning the cause of circumstances of what he believed to be his impending death” is “not excluded by the hearsay rule if the declarant is unavailable as a witness.” In State v. Foote, 379 So.2d 1058 (La.1980), the Louisiana Supreme Court stated:

| sDying declarations are admitted into evidence as an exception to the hearsay rule because the dead victim is not available to testify directly, and the murderer might otherwise escape justice. Such statements are considered reliable if given by one who believes himself in imminent danger of death.

379 So.2d at 1060.

This Court in State v. Henderson, 95-0267 (La. 4 Cir. 4/3/96), 672 So.2d 1085, discussed the determination of whether or not the declarant believed at the time of making a statement that he was dying. This Court stated:

[N]o absolute rule can be laid down by which to decide with certainty whether the declarant, at the time of making his statement, really expected to die, yet when the wound is from its nature mortal, and when, as a matter of fact, the deceased shortly after making his statement died, the courts have uniformly held that the declarant really believed that death was impending, and his statement has been admitted as a dying declaration.

672 So.2d at 1089, quoting State v. Augustus, 129 La. 617, 619, 56 So. 551, 552 (1911).

In State v. Nicholson, 96-2110 (La.App. 4 Cir. 11/26/97), 703 So.2d 173, this Court stated that a statement, even if it is made in response to a question, may be admitted as a dying declaration if it was made when the declarant was conscious of his condition and aware of his approaching demise. 703 So.2d at 177. Further, the victim is not required to express his awareness of his impending death. Id. The victim’s state of mind may be inferred from the circumstances under which the statement was made. Id. Finally, the more serious the injury and the greater the victim is impaired, the more probable it is that the victim believed that he was dying. Id.

In State v. Winn, 97-2509 (La.App. 4 Cir. 1/14/98), 705 So.2d 1271, 1274, this Court stated that “[i]n determining whether the declarant believed that her 1 ¿death was imminent, courts have looked not only to any actual words of the declarant as to this belief, but also to the circumstances surrounding the statement, to determine if the declarant actually believed her demise was imminent.” Thus, the declarant’s belief that he was dying can be determined not only by the declarant’s statement that he believes death is impending, but also by an assessment of the circumstances under which the declaration was made.

Based on the foregoing, we find that the statements made by Mr. Carter implicating Mr. Calender in his death are properly admissible as exceptions to the hearsay rule. Mr. Carter was praying for forgiveness at the scene of the shooting, he was bleeding, and he had wounds that a reasonable person would believe to be fatal wounds. Although Ms. Dixon testified that she did not think that Mr. Carter was dying when he said that “Chris” shot him, her perception of the situation is irrelevant. Mr. Carter clearly indicated that he considered himself to be in imminent danger of dying when he was obviously trying to make peace with his maker by asking forgiveness for his sins. Additionally, when Mr. Carter told Detective Nixon that “Chris” shot him, the circumstances described by Detective Nixon clearly indicated that Mr. Carter’s life was in grave danger. He was in a hospital, he was in agonizing pain, he was bleeding, emergency procedures were being performed on him in an attempt to save his life, his ability to move his arms was impaired as a result of his wounds, and his breathing was being artificially assisted. Any reasonable person in such a situation would believe that he was in danger of dying from his injuries.

The judgment of the trial court finding that the statements made to Ms. Dixon, Ms. Carter, and to Detective Nixon were not statements made under the belief of impending death is reversed. We find that Mr. Carter’s statements that |fiMr. Calender was the person who shot him were dying declarations of Mr. Carter and are admissible in evidence as an exception to the hearsay rule.

REVERSED.

JONES, J., dissents.

JONES, J.,

dissenting.

Iil find no error in the judgment of the district court. I, therefore, respectfully dissent.

      . The names Gee and Geek were both used in the transcripts to refer to the same person.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Donald J. GAUTHREAUX v. NEW ORLEANS CITY PARK IMPROVEMENT ASSOCIATION.
    No. 2006-CA-0385.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 20, 2006.
    William Lurye, Robein, Urann & Lurye, P.L.C., Metairie, LA, for Plaintiff/Appellant.
    Charles C. Foti, Jr. Attorney General, Christopher D. Matchett, Assistant Attorney General, Louisiana Department of Justice, Baton Rouge, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| ,This appeal is from a final judgment granting the peremptory exception of no cause of action filed by the defendant/ap-pellee, the New Orleans City Park Improvement Association (“City Park”) and dismissing all claims of plaintiff/appellant, Donald J. Gauthreaux. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the trial court.

Relevant Facts and Procedural History

Although the appellant, an unclassified employee of city park, accumulated approximately 997 hours of vacation leave prior to his termination on Sept. 3, 2003 he was paid for only 300 hours of the accrued vacation leave. On January 6, 2005, the appellant filed suit in civil district court alleging that he was entitled to payment for the remainder of his accrued vacation pay. City Park filed a peremptory exception of no cause of action and a dilatory exception of unauthorized use of summary proceedings. The district court granted the peremptory exception and dismissed appellant’s petition. This timely appeal was filed.

¡^Discussion

In his sole assignment of error, the appellant argues that he stated a cause of action under La.Rev.Stat. 23:631 and, accordingly, the trial court erred in granting the exception of no cause of action.

For purposes of an exception of no cause of action, the factual allegations of the petition must be accepted as true and the sole issue before the court is whether, on the face of the petition, the petitioner is entitled to relief. Everything on Wheels, Subaru v. Subaru South, Inc., 616 So.2d 1234 (La.1993). On appeal, the trial court’s ruling sustaining an exception of no cause of action is reviewed de novo by this court. City of New Orleans v. Board of Commissioners of Orleans Levee Dist., 93-0690, pp. 47-49 (La.7/5/1994), 640 So.2d 237, 253.

La.Rev.Stat. 42:421(B) provides that a state employee may be paid for accrued annual leave amounting to the same maximum as provided by the civil service rules. In turn, Civil Service Rule 11.10(b) provides that “[n]o terminal payment for annual leave earned under these Rules shall exceed the value of 300 hours, computed on the basis of the employee’s hourly rate of pay (includes base supplement) at the time of his separation.” See also Executive Order MJF 98-23 § 10 (12/30/96) (upon final termination from state service an unclassified employee shall be paid his accrued annual leave in a lump sum up to a maximum of 300 hours).

Appellant’s reliance on La.Rev.Stat. 23:631 and 632 to argue that he was entitled to payment for surplus accrued vacation hours is misplaced. Those statutes only require an employer to promptly pay a discharged employee the “amount then due under the terms of employment.” The appellant conceded in his petition |sthat he was paid for 300 hours of accrued vacation leave, the amount due to him under La. Rev.Stat. 42:421(B), and, accordingly, he failed to state a cause of action.

Conclusion

After de novo review of the plaintiff/appellant’s petition in light of the applicable statutes, we affirm the judgment of the trial court granting the defendant/appel-lee’s exception of no cause of action.

AFFIRMED.


author: PETERS, J. THIBODEAUX, Chief Judge,

text:
    STATE of Louisiana v. Herbert DAVENPORT, Jr.
    No. 2006-0363.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Rehearing Denied Nov. 15, 2006.
    Richard Putnam, III, Assistant District Attorney, Abbeville, LA, for Appellee, State of Louisiana.
    James Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant/Appellant, Herbert Davenport, Jr.
    Court composed of Chief Judge ULYSSES GENE THIBODEAUX and Judges JIMMIE C. PETERS and J. DAVID PAINTER.
   PETERS, J.

|,A jury convicted the defendant, Herbert Davenport, Jr., of hit and run driving, a violation of La.R.S. 14:100. Thereafter, the trial court sentenced him to serve seven and one-half years at hard labor. The defendant appeals both his conviction and sentence, asserting two assignments of error. For the following reasons, we affirm the defendant’s conviction, but vacate his sentence and remand the matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

At approximately 2:00 a.m. on Saturday, September 27, 2003, the defendant was driving a vehicle south on U.S. Highway 167 (U.S. 167) in or near Maurice, Vermilion Parish, Louisiana. Ross Plowden accompanied the defendant and was sitting in the front passenger seat. The two men had been together since early Friday afternoon and were returning from a trip to Lafayette, Louisiana. As the two men traveled the highway, the defendant accidentally struck and killed a pedestrian, Cliff R. Gaspard. It is this accident that gave rise to the criminal charge now before us.

At the point where the defendant struck Gaspard, U.S. 167 is a four-lane highway with the north and south travel lanes separated by a median. Visibility in the early morning hours of September 27, 2003, was impaired by ground fog, and the accident occurred when the defendant, who was proceeding south in the outside lane of U.S. 167, swerved to the inside lane to avoid a collision with another vehicle which had turned in front of him. When the defendant entered the inside lane, he immediately encountered Gaspard walking in the middle of the lane. He swerved back toward the outside lane to avoid hitting Gaspard, but, for some unexplained | ¿reason, Gaspard turned in the direction of the swerving vehicle and was struck. The defendant regained control of his vehicle and stopped on the side of U.S. 167, and he and Plowden began a futile search for the victim. After failing to find the victim, the two men abandoned the search and left the scene of the accident without reporting the incident to any law enforcement authority.

At approximately 6:45 a.m. that same morning, Dallas E. Landry discovered Gaspard’s body in the highway median approximately thirteen feet from the edge of the highway and immediately reported his discovery to law enforcement officials. That evening, after seeing a television report concerning the accident, the defendant turned himself in to law enforcement authorities and subsequently gave an oral statement concerning his involvement in the incident.

The State of Louisiana (state) charged the defendant by bill of information with a violation of La.R.S. 14:100. After a two-day trial, which began on July 12, 2005, a jury convicted the defendant of the charge. The trial court then ordered the preparation of a presentence investigation report and set sentencing for November 9, 2005. On that date, the trial court sentenced the defendant to serve seven and one-half years at hard labor. After the trial court rejected his December 6, 2005 motion to reconsider his sentence, the defendant perfected this appeal, asserting two assignments of error.

OPINION

In his first assignment of error, the defendant asserts that the evidence was not sufficient to convict him of hit and run driving. In considering this assignment of error, we first note that the law is well settled concerning the appellate court’s role |3iii considering an insufficient evidence argument. The critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

Louisiana Revised Statutes 14:100 defines the offense of hit and run driving and provides in pertinent part as follows:

A. Hit and run driving is the intentional failure of the driver of a vehicle involved in or causing any accident, to stop such vehicle at the scene of the accident, to give his identity, and to render reasonable aid.
B. For the purpose of this Section:
(1) “To give his identity”, means that the driver of any vehicle involved in any accident shall give his name, address, and the license number of his vehicle, or shall report the accident to the police.
(2) “Serious bodily injury” means bodily injury which involves unconsciousness, extreme physical pain, or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
(4) “Accident” means an incident or event resulting in damage to property or injury to person.

Thus, the fact that an individual is involved in an accident does not give rise to the criminal charge. Rather, criminal culpability is based on the individual’s action or inaction after the accident. After being involved in an accident, an individual must do three things to avoid criminal liability: He must stop his vehicle at the scene of the accident, give his identity, and render reasonable aid. If he intentionally fails to perform these three actions, he may be convicted of the offense of hit and run driving. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7.

l4On appeal, the defendant asserts that these three elements are separate and distinct and that the state established only one of the three, i.e., his failure to report the accident to the police. We disagree. While the elements are listed separately, they clearly overlap in their application.

The evidence establishes beyond a reasonable doubt that the defendant did stop his vehicle at the scene of the accident after he struck the victim and that he initially searched for the victim, but then left the scene. The evidence also establishes beyond a reasonable doubt that the defendant failed to report the accident to the police, either at the accident scene or after he left the'scene, and that he provided no aid to the victim other than the futile search effort.

We conclude, as apparently did the jury, that the temporary stop was not sufficient to satisfy the obligation arising under La. R.S. 14:100. That statute sets no time limit for the required stop, and merely stopping at the scene without fulfilling the other two obligations, i.e., providing identity and rendering reasonable aid, is no different than not stopping at all. We also find no merit in the argument that the search effort was sufficient to satisfy the reasonable aid element. By not reporting the accident, the defendant effectively prevented the victim from receiving reasonable aid.

| ñIn viewing the evidence in the light most favorable to the state, we conclude that any rational trier of fact could have found that the state established the essential elements of the offense beyond a reasonable doubt. Thus, we find no merit in the defendant’s first assignment of error.

In his other assignment of error, the defendant asserts that the sentence imposed by the trial court is excessive. The incarceration sentence for a defendant convicted of hit and run driving is zero to ten years with or without hard labor. La. R.S. 14:100(C)(b)(2). Thus, the defendant’s seven and one-half year hard labor sentence is within the statutory sentencing range. However, we do not reach the excessiveness issue because we must vacate the sentence because the trial court based the sentence in part on improper considerations.

At the sentencing proceedings, the trial court gave extensive oral reasons for the sentence imposed. As mitigating factors, the trial court noted that the defendant is a first felony offender with no prior criminal history and that he did surrender himself to law enforcement after he saw the television broadcast. Past that point, the trial court found no other factor mitigating in favor of the defendant. The trial court also noted the impact the accident had on the victim’s family and acknowledged that the family requested imposition of the maximum sentence. To that extent, we find no error in the trial court’s conclusions.

The difficulty arises in the trial court’s expressed disbelief in the state’s evidence with regard to the defendant and Plowden stopping and searching at the scene. Rather than accepting the state’s uncon-tradicted version of the surrounding circumstances, the trial court concluded that the two men did not stop and search for the victim, because, if they had, they would have found him. Thus, in sentencing the | ^defendant, the trial court improperly penalized the defendant for inaction not supported by the evidentiary record.

Additionally, the trial court also stated that it based its sentence partly on what it concluded was the defendant’s obvious lack of remorse. This conclusion was apparently based on comments made by the defendant in the presentence investigation report, the argument of his counsel at the sentencing hearing, and the fact that Plow-den entered a guilty plea to accessory after the fact for his involvement in the offense.

We make no comment concerning the contents of the presentence investigation report. However, the statements of the defendant’s attorney relate to an attempt to introduce evidence of the victim’s condition immediately prior to the accident as well as his prior criminal history. These offerings were rejected as being irrelevant. The trial court erred in concluding that the trial strategy of the defendant’s attorney equated to a lack of remorse on the part of the defendant.

Additionally, regarding Plowden’s plea, the trial court stated that this act “apparently [showed] some remorse and some acceptance rather than denial of his guilt,” as opposed to the defendant’s decision to go to trial. One cannot necessarily equate Plowden’s plea bargain as being an indication of remorse. Plowden’s situation was different than that of the defendant. Importantly, while the defendant had a spotless criminal record, Plowden’s was extensive. Thus, the incentive for entering into a plea agreement with the state and testifying against the defendant was 17significant, and the trial court erred in relying on Plowden’s plea agreement as a basis for concluding that the defendant showed a lack of remorse. Essentially, the trial court punished the defendant for maintaining his innocence and requiring the state to prove his guilt. This was improper.

While the trial court acknowledged that the defendant was a candidate for probation, the trial court nevertheless sentenced him to a hard labor sentence, primarily based on its disbelief in the uncontradicted version of the surrounding circumstances, its finding of lack of remorse on the part of the defendant, the fact that Plowden had been sentenced to five years at hard labor, and the feelings of the victim’s family. When the improper considerations are removed from the trial court’s reasons for sentencing, we are left with only the recognized mitigating factors and the comments from the victim’s family. Because the trial court was improperly influenced in sentencing the defendant by its conclusions with regard to the evidence presented as well as the remorse issue, we find it necessary to vacate the sentence and remand the matter to the trial court to resentence the defendant without consideration of those factors as they were originally presented.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s conviction, but vacate the sentence and remand this matter to the trial court for further proceedings.

CONVICTION AFFIRMED, SENTENCE VACATED, AND THE MATTER REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

_JjThe majority misconstrues the clear language of La.R.S. 14:100. In doing so, it imposes conditions on a defendant not contemplated by the statute. The application of impermissible statutory construction improperly upholds the conviction of this Defendant.

Louisiana Revised Statutes 14:100 is written in the conjunctive. It requires: (1) stopping one’s vehicle at the scene; (2) giving one’s identity; and, (3) rendering reasonable aid. The majority recognizes these three factors and further recognizes that if one fails to perform these three actions, he may be convicted of the offense of hit and run driving, citing State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7. However, the majority reasons that these elements, although in the conjunctive, are not separate and distinct. Rather, the three elements must be read together such that a defendant must simultaneously do all three things. That is, when one stops his vehicle pursuant to La.R.S. 14:100(A), he must simultaneously provide his identity and render reasonable aid. The failure to do so, the majority reasons, is tantamount to not stopping at all. I disagree.

| ¡¡The rendering of reasonable aid presupposes the existence of someone to whom aid should be provided. In this case, the testimony indisputably shows that an attempt was made to find the victim and to presumably provide assistance. The Defendant’s and his friend’s attempt to find the victim was unavailing. Consequently, they left the scene. The Defendant then turned himself into law enforcement upon hearing about this accident on a local television broadcast.

Williams emphasizes that it was “undisputed that defendant did not stop at the scene of the accident.” Id. at 13. It is significant that the supreme court chose to emphasize the word “at” in finding that element number one had been proven. Here, there is no doubt the Defendant stopped at the scene of the accident and attempted to render aid. The State failed in its burden, in my view, to establish that the Defendant failed to stop at the scene of this accident.

It is axiomatic that criminal laws are to be strictly construed and with lenity in favor of an accused and against the State. State v. Carr, 99-2209 (La.5/26/00), 761 So.2d 1271. The majority, in upholding this conviction, fails to honor this elementary principle of criminal law.

For the foregoing reasons, I respectfully dissent.

      . The defendant and Plowden were the only two witnesses to the accident. The evidence with regard to the particulars of the accident was supplied at trial through the testimony of Plowden and pretrial statements of the defendant.

      . The testimony of Plowden conflicts with other evidence concerning the defendant’s role in the search for the victim, but that conflict is not dispositive of the issues before us.

      . In this case, because the victim was not initially located, La.R.S. 14:100(B)(1) required that the defendant report the accident to the police.

      . The defendant’s prior statement to the investigating officers was to the effect that he and Plowden searched the highway for approximately thirty minutes on both sides of the road, but did not discover the victim’s body. Plowden testified that the search lasted about twenty minutes, and, while his testimony was ambiguous concerning the defendant’s involvement in the search, he acknowledged on cross-examination that the defendant participated in the search.

      . Plowden testified that he and the defendant attempted to flag down a passing police car while at the scene of the accident,

      . As a result of a plea agreement, Plowden received five years at hard labor for his involvement in the offense.

      . Plowden’s criminal record included, among other charges, unauthorized entry of an inhabited dwelling, simple criminal damage to properly, possession of crack cocaine, possession of drug paraphernalia, and hit and run of a police officer. He was on probation at the time of the accident and committed several offenses after that time.


author: PATRICIA RIVET MURRAY, Judge.

text:
    Mark RUSSELL v. MOSQUITO CONTROL BOARD.
    No. 2006-CA-0346.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 27, 2006.

      Gary M. Pendergast, New Orleans, LA, for Plaintiff/Appellant.
    Penya Moses-Fields, City Attorney, Joseph V. DiRosa, Jr., Chief Deputy City Attorney, Victor L. Papai, Jr., Assistant City Attorney, New Orleans, LA, for Defendant/Appellee.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge LEON A. CANNIZZARO, JR.
   PATRICIA RIVET MURRAY, Judge.

hA former permanent classified civil service employee of the Mosquito Control Board of the City of New Orleans (“MCB”), Mark Russell, appeals from a decision by the Civil Service Commission of the City of New Orleans (the “Commission”) dismissing his appeal. Agreeing with the MCB (the Appointing Authority) that Mr. Russell voluntarily retired and thus lacked a right of appeal, the Commission dismissed the appeal. We agree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

From July 27, 1981 until May 31, 2004, Mr. Russell was employed by the MCB. His final position with the MCB was Automotive Section Supervisor. On March 31, 2004, Mr. Russell and a co-worker, Clyde Spain, were involved in a physical alteration. Disciplinary actions were commenced against both of them. On April 13, 2004, the MCB sent a disciplinary letter to Mr. Russell advising him that he was suspended for sixty days without pay pending an investigation. The MCB subsequently decided to terminate him and scheduled a pre-termination meeting. Given Mr. Russell’s lengthy tenure with the department coupled with the | ^understanding that he was extremely close to qualifying for early retirement under the “Rule of 80,” the MCB decided to offer him the option of retiring in lieu of termination. In order to facilitate Mr. Russell’s retirement process, the MCB offered to take two additional steps: (i) lift his sixty day suspension, and (ii) allow him to take up to thirty days of his accumulated annual leave time. Both of these steps were believed to be necessary in order for Mr. Russell to complete the retirement process under the Rule of 80. The first step was necessary because, as Wilamina Jasmin (an accountant with the retirement department) testified, only an active employee can elect the Rule of 80 retirement. The second step was necessary because Mr. Russell was believed to be several (about twenty-six) days short of qualifying for Rule of 80 retirement.

On Monday, April 26, 2004, the pre-termination meeting was held. In attendance at the meeting were three MCB representatives — Edgar Bordes, Administrator; Michael Carroll, Assistant Administrator; and Stephen Sackett, Senior Entomologist — and Mr. Russell. At the meeting, the MCB representatives presented Mr. Russell with a typed agenda that they had prepared for the meeting. The agenda, which they followed at the meeting, outlined the following five salient points to be covered:

1. Explain circumstances leading to this meeting.
2. Explain that due to the accumulation of past discipline actions and his latest incident (especially threat of arming himself) that we cannot prudently allow him back as an employee.
3. Explain his options: Fired or retired.
4. If fired, tell him that a registered letter will be sent to him.
|a5. If retired, give him “rule of 80” information and explain that he will be eligible for it tomorrow and that he will receive c. $19-20K. Give him leave summary and status sheets and copy of folder card. Needs to take annual leave (has c. 53 days left). Must give us a letter by Wednesday stating that he is applying for retirement this week and must give us a letter from the retirement board or send his retirement request through Pat by Friday confirming his intent to retire.

Everyone in attendance at the meeting signed the agenda. Next to his signature, Mr. Russell noted: “NO DECISION.”

At the meeting, Mr. Russell’s response to the proposal was that he needed to discuss the options with his wife. After doing so, Mr. Russell sent a letter to the MCB on April 27, 2004 (the day after the meeting) informing them of his decision to retire. The letter read: “[p]lease forward my request for retirement to the City Retirement Board as soon as possible. I understand that I am now eligible for retirement according to the City of New Orleans ‘rule of 80.’ ” On that same date, Mr. Carroll sent an inter office memorandum to Mr. Russell documenting the terms of the agreement between the MCB and Mr. Russell. The April 27th memorandum, which Mr. Russell signed (acknowledging his receipt of a copy and his agreement with its terms), read as follows:

This memo is to clarify your retirement intentions. It is our agreement that you will be taken off of suspension effective 4 P.M. today, April 27, 2004 and placed on annual leave effective 8 A.M. April 28, 2004 for the following 30 days to allow your retirement process to be completed.
If you choose not to complete the retirement process, we will begin your disciplinary pre-termination proceedings as regards the incident with Clyde Spain on 3/31/04. Should the retirement be finalized within the following 30 days, the suspension days that you have already served will close action on this disciplinary matter.

The next day, April 28, 2004, a form requesting “Rule of 80” retirement and bearing the signatures of Mr. Bordes, on the Appointing Authority’s behalf, and Mr. Russell was submitted to NOMERS.

|4On May 12, 2004, Mr. Russell filed an appeal with the Commission. On the Appeal Form, he checked off two disciplinary actions as the grounds for his appeal: (i) the sixty-day suspension imposed on April 13, 2004 by letter; and (ii) the “forced” retirement imposed on April 26, 2004 at an in person meeting.

On July 8, 2004, the Hearing Examiner conducted a hearing on the consolidated appeals of Mr. Russell and Mr. Spain arising out of the March 31, 2004 incident. At the commencement of the hearing, the MCB’s attorney raised the issue of whether Mr. Russell lacked a right to appeal given his voluntary retirement. Noting that the Commission had, reviewed and opened Mr. Russell’s appeal and had placed it on his docket, the Hearing Examiner declined to reach the issue. Shortly thereafter, the Hearing Examiner stopped the hearing for another reason — the MCB’s failure to comply with Mr. Russell’s and Mr. Spain’s rights under Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), to a pre-termination notice and hearing.

On that same date, July 8, 2004, the MCB filed a Motion for Summary Disposition on the basis that Mr. Russell has no legal right of appeal. See City Civil Service Rules, Rule II, § 6 (enumerating as one of the grounds for summary disposition of an appeal “that the appellant has no legal right of appeal.”) The MCB contended that Mr. Russell’s decision to retire was voluntary in nature and that the MCB accommodated his decision when it modified the previously imposed suspension to allow him to complete the retirement process.

On August 31, 2004, the MCB filed a Supplement to its Motion for Summary Disposition. The MCB provided as an attachment to its supplement an | ¡^affidavit from Kim DeLarge, Sr. (a NOMERS’ employee) outlining the various retirement options available to Mr. Russell as of April 13, 2004. Based on Mr. DeLarge’s affidavit and the circumstances surrounding Mr. Russell’s retirement, the MCB alleged that there was a mutual bargain confected with Mr. Russell whereby both parties benefited. According to the MCB, the mutual bargain was as follows:

Mr. Russell was allowed to retire early under the “Rule of 80”; he avoided a 3% reduction for each year under 62 if he chose to draw his benefit beginning on his 60th birthday; and he had his retirement benefit being paid from the date of his retirement. Insofar as the appointing authority benefited, Mr. Russell would no longer work for them, and it would be an amicable resolution of the matter.

On October 4, 2004, the Commission remanded the matter to the Hearing Examiner to take evidence for a determination of whether Mr. Russell’s retirement decision was voluntary, as the MCB contended, or involuntary (forced) as Mr. Russell contended. At the hearing, the following four witnesses testified: Mr. Carroll, Mr. Bordes, Ms. Jasmin, and Mr. Russell; and, the MCB introduced the following five documents: Mr. DeLarge’s affidavit; the agenda for the April 26th meeting; Mr. Russell’s April 27th letter to the MCB; the April 27th Inter Office memorandum; and an April 28th computer personnel printout. At the hearing, the |RHearing Examiner noted that the facts were not in dispute: Mr. Russell was offered the option of taking early retirement or being fired.

Following the hearing, the Hearing Examiner issued a report in which he noted the following:

The Appellant was on suspension at the time of the offer and he accepted it. The Appointing Authority put into the record various documents signed by the Appellant concerning his retirement.
There was a good deal of testimony as to the Rule of 80 and the effects of an involuntary retirement. It was stated that the Appellant was in good spirits and agreed to the offer. The Appellant was to be taken off suspension and allowed to take annual leave to make up the time necessary for the implementation of the Rule of 80.
•The Appointing Authority also makes the case that the violation the Appellant was being disciplined for was solid. That Termination was not a grey area but well warranted.
• Counsel for the Appellant argues strongly that the Appointing Authority should not have the option of forcing an employee to waive his appeal rights.
• The documents offered into evidence were all signed by the Appellant. Of course, the argument of the appellant is that he was “forced” to sign under the threat of termination.
• It is similar to a criminal defendant who pleas guilty and then changes his or her mind. The argument is usually put forward that he or she was forced to do so by the attorney on the case. Although the argument here is more sophisticated, it is the Appellant who had the option of resigning or fighting the suspension and pending termination. The offer was put on the table to allow a resignation and the Appellant was taken off suspension and allowed to resign.

Concluding, the Hearing Examiner found that “[t]he Appellant signed the forms, and he did resign. The Appellant changed his mind for whatever reason and now feels that he was forced to resign. The record and the documents indicate that is not the case and that the resignation was voluntary.”

|70n February 16, 2005, the Commission rendered it decision granting the Appointing Authority’s Motion for Summary Disposition and denying Mr. Russell’s appeal. The Commission reasoned as follows:

It is uncontroverted that the Appellant completed the “retirement process” and that he is presently receiving the “Rule of 80” pension benefits.
The Appellant’s filing of the Appeal Form did not suspend or stop the processing of the Appellant’s retirement. At any time prior to the expiration of the 30 day period stipulated in the Inter Office Memorandum of April 27, 2004, the Appellant could have withdrawn from the retirement process and' challenged the disciplinary action and participated in the pre-termination hearing as stated in the Inter Office Memorandum. He did not do so..
We view the filing of the Appeal Form as an act taken to preserve the Appellant’s right of appeal in the event he elected to halt the retirement process within the 30 day consideration/revocation period. However, once the 30 day period stipulated in the Inter Office Memorandum expired, the Appellant’s right to pursue further disciplinary action, viz., termination, were mutually extinguished. The Inter Office Memo Memorandum and the Appellant’s actions cannot be read otherwise.
Accordingly, the Commission finds that in making application for and receiving his retirement benefit the Appellant accepted the Appointing Authority’s offer as embodied in the Inter Office Memorandum of April 27, 2004, and that the Appellant knowingly and voluntarily waived his rights of appeal arising out of the incident with Clyde Spain on 3/31/04.

This appeal followed.

STANDARD OF REVIEW

In Banks v. New Orleans Police Dep’t., 2001-0859, p. 3 (La.App. 4 Cir. 9/25/02), 829 So.2d 511, 513-14, we articulated the standard of review in civil service cases. First, the review by appellate courts of the factual findings in a civil service case is governed by the manifest error or clearly erroneous standard. Second, when the Commission’s decision involves jurisdiction, procedure, and interpretation of laws or regulations, judicial review is not limited to the arbitrary, capricious, or |sabuse of discretion standard. Instead, on legal issues, appellate courts give no special weight to the findings of the trial court, but exercise their constitutional duty to review questions of law and render judgment on the record. A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial. Finally, a mixed question of fact and law should be accorded great deference by appellate courts under the manifest error standard of review. See Stern v. New Orleans City Planning Comm’n, 2003-0817, pp. 5-6 (La.App. 4 Cir. 9/17/03), 859 So.2d 696, 699-700.

DISCUSSION

On appeal, Mr. Russell asserts two assignments of error. First, he contends that the Commission committed manifest error in failing to protect his pre-termi-nation due process rights — his Loudermill rights — insofar as the MCB denied him a pre-termination hearing. Second, he contends that the Commission committed manifest error in concluding that he “knowingly and voluntarily waived his rights of appeal” arising out of the incident of March 31, 2004 by accepting retirement in the “fired or retired” options that were presented to him.

Both of Mr. Russell’s contentions hinge on whether his retirement was voluntary, as the MCB contends and the Commission found, or involuntary (forced), as he contends. Because an employee’s Loudermill rights are designed to protect his property right in continued employment, the employee relinquishes those rights when he voluntarily resigns or retires. See Abel v. Auglaize County Highway Dep’t, 276 F.Supp.2d 724, 738 (N.D.Ohio 2003)(finding employee’s resignation renders Loudermill inapplicable). However, “[a] public employer obviously cannot avoid its constitutional obligation to provide due process by the | ^simple expedient of forcing involuntary ‘resignations.’ ” Stone v. University of Maryland Medical System Corp., 855 F.2d 167, 173 (4th Cir.1988).

Similarly, an employee has no right to appeal when the employee voluntary resigns or retires. Palmisano v. Department of Fleet Management, Parish of Jefferson, 97-745, p. 5 (La.App. 5 Cir. 12/10/97), 704 So.2d 862, 864. However, an employee has a right to appeal when the employee is either forced to resign or involuntarily resigns. The reason an appeal lies in the latter context is to preclude the characterization of disciplinary action as a “resignation” to subvert an employee’s right to appeal provided for by La. Const. Art 10, § 8. Peterson v. Department of Streets, 369 So.2d 235, 237 (La.App. 4th Cir.1979). “[T]he question of whether an employee has the right to appeal is analogous to the question of whether a plaintiff has a cause of action.” Banks, 2001-0859 at p. 3, 829 So.2d at 514.

The narrow issue before us is thus whether Mr. Russell’s retirement decision was voluntary. Mr. Russell contends that it was not voluntary because he was “threatened and coerced into making a decision under circumstances where he had no true or valid choice.” He further contends that he acted out of a “sense of self preservation and was neither told nor instructed that by accepting the retirement option, that he would forfeit any rights that he might have to an appeal before the Civil Service Commission.” He still further contends that there is no evidence that he intended to retire from his job and that he did not understand that by choosing to retire he was giving up his appellate rights.

The MCB counters that Mr. Russell relinquished his Loudermill rights by voluntarily resigning or alternatively. that his rights were satisfied. It further counters that Mr. Russell’s retirement choice was a voluntary decision, which he |inmade for various reasons including: (i) avoiding the final entry in his City employment record reading “terminated,” which would impair his future job prospects; and (ii) financial considerations. .As to the financial considerations, the MCB points out that the alternative to a “Rule of 80” retirement would have been a delay, if Mr. Russell opted to be fired, in accessing his retirement benefits. He would have to wait, at the earliest, until January 2007 — his sixtieth birthday — in order to collect benefits under a separation retirement. He also would have to take a reduction in his benefits for each year under age sixty-two if he chose to draw his benefits beginning at age sixty.

In determining whether an employee’s retirement choice was voluntary, the federal jurisprudence has enumerated the following four factors for courts to consider: “(1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice he was given; (3) whether the employee was given a reasonable time in which to choose; and (4) whether he was permitted to select the effective date of resignation.” Parker v. Board of Regents of Tulsa Jr. College, 981 F.2d 1159, 1162 (10th Cir.l992)(quoting Stone, 855 F.2d at 174). We separately address each factor.

(1) whether the employee was given some alternative to resignation

Although the MCB gave him the option of either retiring or being terminated, Mr. Russell argues that he had no viable alternative but to retire. Rejecting similar arguments, the federal jurisprudence has repeatedly upheld resignations made by employees to avoid a threatened termination for cause. Christie v. United States, 207 Ct.Cl. 333, 518 F.2d 584, 588 (1975)(collecting cases). In Christie, the court affirmed a Commission’s finding that the employee voluntarily chose to resign and to accept retirement rather than challenge the validity of her proposed termination for cause. Rejecting the employee’s argument that she had no viable alternative but to resign, the court reasoned that “[s]he could stand pat and fight. She chose not to. Merely because plaintiff was faced with an inherently unpleasant situation in that her choice was arguably limited to two unpleasant alternatives does not obviate the voluntariness of her resignation.” Christie, 518 F.2d at 587. By analogy, Mr. Russell had a choice in that he could have stood pat and fought his termination.

(2) whether the employee understood the nature of the choice he was given

Mr. Russell does not dispute that he understood his options. Indeed, as the Hearing Examiner emphasized, his options were set forth in several written documents, which he signed. The agenda for the pre-termination meeting set forth the options of retirement or termination. The inter office memorandum clarified the terms of the agreement the MCB reached with Mr. Russell. The agreement, as Mr. Bordes testified, was “that he [Mr. Russell] would take the retirement and that would end the disciplinary conflict.” Mr. Russell’s decision to retire was documented in his own letter to the MCB and in the form that was submitted to NOMERS.

The record reflects, as the MCB contends, that Mr. Russell made a considered decision taking into account several factors, including avoiding the final entry in his employment record being “fired” and financial considerations. | iaMr. Russell testified at the hearing that he “did not want the fired to appear on ... [his] record” and acknowledged that if he retired he would have a positive mark on his record so that he could go out and get another job. Conversely, Mr. Carroll testified that if Mr. Russell opted to be terminated, the MCB would have to disclose this fact to other potential employers, which would make it difficult for him to get another job. Mr. Russell also testified that he considered the financial ramifications of his decision. According to Mr. Russell, he and his wife “figured that with retirement ... [they] would have some income coming in to live on,” albeit not enough.

(3) whether the employee was given a reasonable time in which to choose

The MCB did not require Mr. Russell to make a decision on the spot at the pre-termination meeting. Rather, the MCB honored his request for time to discuss the options with his wife. As reflected in the April 26th agenda for the pre-termination meeting, the MCB gave Mr. Russell two days (until April 28th) in which to choose.

(Ip) whether he was permitted to select the effective date of resignation

Mr. Russell’s retirement date was determined based on his completion of the retirement process, i.e., his qualification under the Rule of 80. When he signed the necessary documents requesting the Rule of 80 retirement, Mr. Russell ratified the retirement date contained therein, May 31, 2004, as his own. See Christie, 518 F.2d at 588 (finding employee ratified retirement date as her own when she signed retirement documents and that her signature satisfies the requirement she select her own effective date of resignation).

1 ^Application of these factors thus supports a finding that Mr. Russell’s retirement was voluntary. Accordingly, we find no error in the Commission’s decision that Mr. Russell’s retirement was voluntary and that he lacked a right to appeal. As explained above, our finding that his retirement was voluntary renders Louder-mill inapplicable.

DECREE

For the foregoing reasons, we affirm the judgment of the Commission.

AFFIRMED.

      . Under the City Civil Service Rules, the "Appointing Authority" is defined as "any officer, board, agency, commission, or person having the power to make appointments to positions in the city service." City Civil Service Rules, Rule I, § 1.

      . The "Rule of 80” is one of the three types of retirement available under the City of New Orleans Retirement System ("NOMERS”). Early retirement is available under the "Rule of 80” to an active employee who, regardless of age, has a combined chronological age and years of service totaling at least 80.

      . Attached to the Appeal Form was an extensive typewritten- summary regarding the March 31, 2003 incident. We note, as the Hearing Examiner noted, that the merits of the underlying incident are not before us.

      . Mr. DeLarge attested that Mr. Russell had twenty-two years and eight months retirement credit with NOMERS. He further attested that Mr. Russell will be sixty years old in January 2007. Mr. DeLarge explained that as of April 13, 2004, Mr. Russell was eligible for Rule of 80 retirement. He further explained that Mr. Russell would be eligible for a separation retirement at a reduced benefit as early as age sixty and for a separation retirement with no reduction at age sixty-two.

      . In so doing, the Commission advised Mr. Russell that if it concluded his retirement was involuntary, then before his employment rights could be restored he would have to repay all the retirement benefits he received and all the annual leave he used for the period during which he applied for his retirement.

      .The computer personnel printout dated April 28, 2004 that was introduced reflects the actions taken by the MCB. There is a handwritten notation on the printout, which states that Mr. Russell "returned to work 30 days on A/L [Annual Leave] until 'Rule of 80' retirement is effective 5/31/04.”

      . The parties cite no Louisiana cases, and our research revealed none, providing any guidance on the factors to be considered in making this determination. We thus look to the federal jurisprudence for guidance on this issue.

      . However, the federal courts have required that "the threatened termination must be for good, cause in order to precipitate a binding, voluntary resignation.” Christie, 518 F.2d at 588 (emphasis supplied). In this context, the "good cause" requirement is met "as long as plaintiff fails to show that the agency knew or believed that the proposed termination could not be substantiated.” Id.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. Jimmy D.J. GAUTHIER.
    No. 2005-KA-1365.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 27, 2006.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell, IV, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Jimmy D.J. Gauthier.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

pThe defendant, Jimmy D.J. Gauthier, was convicted of simple battery and of intimidating a witness. He is appealing his conviction for intimidating a witness.

STATEMENT OF THE CASE

In June of 2003, Mr. Gauthier was charged in a bill of information with one count of second degree battery, a violation of La. R.S. 14:34.1 and with one count of intimidation of a witness, a violation of La. R.S. 14:129.1. He pled not guilty at his arraignment. The trial court judge found that Mr. Gauthier was competent to proceed to trial after considering the expert medical testimony at a competency hearing. Mr. Gauthier subsequently changed his not guilty plea to a plea of not guilty and not guilty by reason of insanity. A sanity hearing was then held to determine whether he suffered from any mental disease or defect that prevented him from distinguishing between right and wrong at the times the crimes were committed.

Mr. Gauthier was tried by a jury. He was found guilty of simple battery, a violation of La. R.S. 14:35, on the first count and guilty as charged on the second count. Mr. Gauthier was sentenced to six months in parish prison for simple | ¡¡battery and to five years in the custody of the Louisiana Department of Corrections for intimidating a witness. The sentences were ordered to be served concurrently. Mr. Gauthier filed a motion to reconsider his sentence, which was denied, and a motion for appeal, which was granted.

The State filed a multiple offender bill of information charging Mr. Gauthier under the Habitual Offender Law, La. R.S. 15:529.1, and Mr. Gauthier filed a motion to quash the bill of information. As of the time that this appeal was lodged, Mr. Gau-thier had not been adjudicated a multiple offender. Mr. Gauthier has reserved his right to appeal from any such adjudication, however.

STATEMENT OF THE FACTS

Tracy Bouvier, the victim in this case, testified that Mr. Gauthier had been her “boyfriend” for twelve years and that he was the father of her children. She then testified regarding the incident that led to the charges against Mr. Gauthier.

She said that she had awakened Mr. Gauthier so that he could get ready to go to work. When she woke him, he started accusing her of being unfaithful to him. When she denied that she had been unfaithful, Mr. Gauthier started “punching” her. She explained that the more she denied being unfaithful, the more Mr. Gau-thier hit her. He hit her intermittently for about two hours. Ms. Bouvier stated that Mr. Gauthier hit her with his closed fist on both of her arms, both of her legs, and on her back. Only when Mr. Gauthier realized that he was late for work did he stop hitting Ms. Bouvier and leave to go to his place of employment.

|3Ms. Bouvier said that she did not call the police immediately after she was beaten, because she was scared. When she was being beaten and “got kind of loud at one point,” Mr. Gauthier told her “to shut-up [sic] and be quiet because if the neighbors would have came [sic] to the door, if they would have called the police, then by the time they would have came [sic] in there would have been nothing left of me.” Ms. Bouvier also testified that “[n]umerous times he told [me] if I ever went to the police, or if I ever tried to leave him, that he would kill me.”

Ms. Bouvier then said that she reported the beating to the police the next day because of her son’s reaction when he saw one of the bruises on her arm. Her young son was very upset and said, “That’s it. We are going to call the police.” Ms. Bouvier and her children then traveled to the police station by bus, and she reported the beating.

Although Ms. Bouvier had difficulty walking after the beating, that problem resolved itself, but the pain in her left arm persisted. She testified that approximately ten days after the beating, it was still painful for her to move her left arm. Additionally, her arm had lumps on it, and she could not pick up anything. Therefore, she sought medical treatment at that time.

Ms. Bouvier also said that she had received approximately sixty letters from Mr. Gauthier that he sent to her while he was incarcerated. Most of the letters were sent during the first month that Mr. Gauthier was in jail. At trial Ms. Bouvier identified the letters and read a number of excerpts from them. In the letters, Mr. Gauthier both threatened her and pro-fesséd his love for her.

UNew Orleans Police Department Detective Dira Godchaux, an officer trained to handle domestic abuse cases, also testified at the trial. She said that she met with Ms. Bouvier after she arrived at the police station to report the beating. Detective Godchaux stated that Ms. Bouvier was crying, that she appeared to be afraid, and that she had extensive bruising on her arms, her upper thigh, and her back. Also, the bruised areas were swollen. It appeared that Ms. Bouvier’s muscles were sore, because Ms. Bouvier had difficulty walking. Detective Godehaux also testified that Ms. Bouvier stated to her that Mr. Gauthier had said that he would kill Ms. Bouvier if she reported the beating to the police. Additionally, Ms. Bouvier reported that there had been prior incidents of domestic violence but that she had not reported them to the police.

Although Ms. Bouvier never told Detective Godehaux that Mr. Gauthier was armed with a weapon while he was beating Ms. Bouvier, the detective had him arrested for aggravated battery. Detective Godehaux also testified that when he was taken to the police station, Mr. Gauthier acted in an uncontrollable manner. He struck his head against the wall, and he. was screaming obscenities.

Dr. Raphael Salcedo, a member of the sanity and competency commissions that examined Mr. Gauthier, was called as a witness by Mr. Gauthier. Dr. Salcedo was qualified as an expert in forensic psychology. He testified that he and Dr. Richard Richoux had examined Mr. Gauthier twice and that on the basis of those examinations, they had diagnosed him with “impulse control disorder not | ^otherwise specified” and with “mixed personality disorder with antisocial and grandiose features.”

When Dr. Salcedo was asked whether Mr. Gauthier suffered from bipolar disorder, he said that Mr. Gauthier did not have bipolar disorder. Dr. Salcedo further testified that Mr. Gauthier “knows right from wrong now and I find no evidence that at the time of the alleged offense, or really at anytime in his life, has he suffered from a mental disorder of such severity so as to cripple him psychologically to such a degree that he would not be able to tell right from wrong.” Dr. Salcedo further said that neither the impulse control disorder nor the personality disorder from which Mr. Gauthier suffered would cause him to be unable to distinguish right from wrong. Finally, although Mr. Gauthier’s medial records indicated that bipolar disorder had at one time been considered as a possible diagnosis for Mr. Gauthier’s problems, Dr. Salcedo and Dr. Richoux did not diagnose Mr. Gauthier with any type of psychotic mental illness.

Mr. Gauthier was found guilty of simple battery and of intimidating a witness. He is now appealing his convictions.

ERRORS PATENT

The record in this case reveals one possible error patent. When the trial court judge sentenced the defendant for the crime of intimidating a witness, she imposed a sentence of “five years in the Department of Corrections.” She then stated, however, “[t]hat sentence is with or without hard labor, credit for all time served.... ” The penalty for intimidation of a witness is a fine of not more than 1 fifive thousand dollars or imprisonment “with or without hard labor” for not more than five years or both. La. R.S. 14:129.1. Because the trial court judge failed to specify whether Mr. Gauthier’s sentence was to be served with hard labor or without hard labor, the sentence could be deemed to be indeterminate. The trial court judge did specify, however, that the sentence was to be served in the custody of the Department of Corrections. Because La. R.S. 15:824(0) provides that “only individuals actually sentenced to death or confinement at hard labor shall be committed to the Department of Corrections,” it is clear that the trial court judge intended to sentence Mr. Gauthier to hard labor. Therefore, we hereby amend Mr. Gauthier’s sentence for the crime of intimidation of a witness to specify that the sentence is to be served at hard labor.

DISCUSSION

Mr. Gauthier has raised three assignments of error on appeal. First, he contends that the trial court judge erred in allowing him to represent himself. Second, he claims that there was insufficient evidence to convict him of intimidating a witness. Third, he argues that his sentences were excessive.

Assignment of Error Number 1: The trial court erred in allowing the defendant to both represent himself and proceed with a “not guilty by reason of insanity” plea, without minimally conducting an extensive colloquy into his ability to competently elect self-representation and whether he could competently represent himself.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court stated that the “Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any |7state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment.” 422 U.S. at 807, 95 S.Ct. at 2527. The Supreme Court also determined that “[although not stated in the Amendment [the Sixth Amendment], in so many words, the right to self-representation — to make one’s own defense personally — is thus necessarily implied by the structure of the Amendment.” 422 U.S. at 819, 95 S.Ct. at 2533.

In the Faretta case, the Supreme Court also held that before an accused can represent himself in a criminal matter, the accused must knowingly and intelligently forego the benefits associated with the right to counsel. 422 U.S. at 835, 95 S.Ct. at 2541. The accused must be made aware of the dangers and disadvantages of self-representation, so that the record will establish that the accused knows what he is doing and his choice is made with his “eyes open.” Id.

In Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321(1993), the United States Supreme Court considered the issue of whether the competency standard for waiving the right to counsel is higher than the competency standard for standing trial. The Supreme Court found that a defendant who waives the right to the assistance of counsel need not be more competent than a defendant who does not, because “there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights.” 509 U.S. at 399, 113 S.Ct. at 2686. The Supreme Court then made a distinction between the defendant’s competence to waive.the right to counsel and his competence to represent himself and held that the defendant’s technical legal knowledge is irrelevant to the determination of whether the defendant is competent to waive his right to counsel. 509 U.S. at 400, 113 S.Ct. at 2687.

|sThe Supreme Court in the Moran case also stated that finding the defendant to be competent to stand trial is not all that the trial court judge must do before a defendant may be permitted to waive his right to counsel. Id. The trial court must also “satisfy itself that the waiver of his constitutional rights is knowing and voluntary.” Id.

In Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000), the United States Supreme Court recognized the trial court’s right to appoint “standby counsel” to assist a defendant in representing himself, even over the defendant’s objection. 528 U.S. at 162, 120 S.Ct. at 691. The Supreme Court further recognized that standby counsel may participate in the trial proceedings, even without the defendant’s express consent, as long as the participation by standby counsel does not seriously undermine the appearance to the jury that the defendant is representing himself. Id.

In Iowa v. Tovar, 541 U.S. 77, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), the United States Supreme Court discussed the requirement that a defendant must make a knowing and intelligent waiver of his' right to counsel before he will be permitted to represent himself. The Supreme Court stated:

We have not ... prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel. The information a defendant must possess in order to make an intelligent election, our decisions indicate, will depend on a range of ease-specific factors, including the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.”

541 U.S. at 88, 124 S.Ct. at 1387. The Supreme Court also stated that the defendant should be made aware of the dangers and disadvantages of self-representation. 541 U.S. at 89, 124 S.Ct. at 1387. Finally, in Tovar the Supreme |flCourt stated that “in a collateral attack on an uncounselled conviction, it is the defendant’s burden to prove that he did not competently and intelligently waive his right to the assistance of counsel.” 541 U.S. at 92, 124 S.Ct. at 1390.

Both this Court and the Louisiana Supreme Court have considered the right of a defendant to represent himself. The Louisiana courts have cited the Faretta case and its progeny and their opinions.

In State v. Strain, 585 So.2d 540 (La.1991), the Louisiana Supreme Court stated that in accepting a waiver of counsel at trial, the trial court judge should “advise the accused of the nature of the charges and the penalty range, should inquire into the accused’s age, education and mental condition, and should determine according to the totality of the circumstances whether the accused understands the significance of the waiver.” 358 So.2d at 542. See also State v. Sullivan, 97-1037, p. 7 (La.App. 4 Cir. 2/24/99), 729 So.2d 1101, 1105; State v. Mahogany, 96-1137, pp. 2-3 (La.App. 4 Cir. 4/30/97), 694 So.2d 505, 507. The Supreme Court in Strain further stated that “[w]hile the judge need not inquire into each and every factor stated ... to establish a valid waiver of the right to counsel at trial, there must be a sufficient inquiry (preferably by an interchange with the accused that elicits more than ‘yes’ and ‘no’ responses) to establish on the record a knowing and intelligent waiver under the overall circumstances.” 585 So.2d at 542.

In State v. Simmons, 05-1462 (La.3/17/06), 924 So.2d 137, the Louisiana Supreme Court reiterated that its decision in the Strain case did not establish a rigid set of criteria by which to determine whether a waiver of a defendant’s right to counsel was knowing and intelligent. 05-1462 at pp. 1-2, 924 So.2d at 138. The ImSupreme Court declared that there was no formula or script that was required to be read to a defendant who elected to waive his right to counsel.

In State v. Santos, 99-1897 (La.9/15/00), 770 So.2d 319, the Louisiana Supreme Court made it clear that when a defendant has made an unequivocal request to represent himself, the trial court judge is only required to determine whether the defendant is competent to waive his right to counsel and is doing so by exercising his informed free will. 99-1897 at pp. 2-3, 770 So.2d at 321. The judge is not required to determine whether the defendant will provide himself with competent representation, just that he is competent to waive his right to counsel. Id. See also State v. Rinehart, 544 So.2d 1281, 1285 (La.App. 4 Cir.1989), where this Court found the defendant competent to waive his right to counsel even though he contended that the trial court erred in failing to determine whether he was capable of representing himself rather than just determining that he was competent to waive the right to counsel.

In State v. Marts, 98-0099 (La.App. 4 Cir. 5/31/00), 765 So.2d 438, the defendant argued on appeal that his waiver of his right to counsel was not knowing and voluntary, because the trial judge did not ask him about his age, background, and education before permitting him to waive his right to counsel. He further claimed that he was not informed of the pitfalls of representing himself at trial. This Court found that the defendant had unequivocally declared that he wanted to represent himself. This Court then held that “[n]ot-withstanding the trial court’s failure to engage in a detailed colloquy regarding self-representation,” the defendant made a knowing and valid waiver of his right to counsel. 98-0099 at p. 7, 765 So.2d at 442-43.

|nIn the instant case, Mr. Gauthier was found competent to stand trial, and Mr. Gauthier has not contested that finding on appeal. Thus, under the applicable jurisprudence, Mr. Gauthier was also competent to waive his right to counsel. Nevertheless, we must also determine whether Mr. Gauthier waived his right to counsel knowingly and intelligently.

When Mr. Gauthier appeared for a pretrial hearing, the trial court engaged in the following colloquy:

THE COURT:
All right. Just a couple of housekeeping matters on this case.... You’ve been representing yourself pro se, with Ms. Marine sitting second chair. It’s just for some reason not formally in the record. So, again, I would just like to do a minute entry for that. Mr. Gauthier you’ve made your appeal to the court for representation of yourself pro se again on the record for me.
THE DEFENDANT:
Yes, ma’am. I’d like to represent myself in this case of Trace [sic] Bouvier, State versus Jimmy Gauthier. I’ve had problems in obtaining the law books to go over and and [sic] preparing for this case, it [sic] was because I hadn’t been in the computer as representing myself.
THE COURT:
All right. Let me just put this on the record. Mr. Gauthier, you understand that you are entitled to [sic] public defender to do all of the representation for you?
THE DEFENDANT:
Yes, ma’am, I understand.
THE COURT:
And it’s your wish — Ms. Marine has been assisting you in sitting quote, “second chair”, to you and you’re fine with that arrangement?
h/THE DEFENDANT
She’s doing wonderful. And I appreciate it very much.
THE COURT:
We will put in the court record that you are counsel for yourself. That you are representing yourself pro se with Ms. Marine from the Public Defenders Office assisting you. So, that will help you get access to the legal references that you need in the back.

After the colloquy, there was a discussion between Mr. Gauthier’s court appointed counsel and the trial court judge regarding counsel’s plan to provide a copy of her file to Mr. Gauthier. As the trial judge noted, there was nothing in the record prior to the pretrial hearing to show that Mr. Gauthier was representing himself. The colloquy quoted above was the first indication in the record of Mr. Gauthier’s desire to represent himself.

A second colloquy that occurred the day before Mr. Gauthier’s trial is also in the record. The trial court judge asked Mr. Gauthier whether he had been given an opportunity to consult with the court appointed counsel and whether he wanted to be tried by a jury or by the judge. Mr. Gauthier said that he wanted a trial by jury, and he confirmed that he had been given an opportunity to consult with counsel regarding whether to choose a judge or jury trial.

Mr. Gauthier had been charged in another case with stalking, and the trial court judge further advised Mr. Gauthier that because he had a right to a trial by jury with regard to the stalking charge, that charge could be tried with the instant | iacase before a single jury. The attorney who had been appointed to represent Mr. Gauthier responded to the judge by saying that because the two cases had not been consolidated and because Mr. Gauthier was representing himself in both cases, she thought the cases should be tried separately. Mr. Gauthier then told the court that he agreed that the cases should be tried separately and that the decision to try the cases separately was his decision. The State concurred in that decision.

At the beginning of the trial, the trial court judge discussed with Mr. Gauthier his decision to represent himself at the trial. The colloquy that occurred is as follows:

THE COURT:
Mr. Gauthier, we really didn’t get into the representation issue yesterday. I’d like to address that now. Again, it is your right to represent yourself pro se. I know that you have prepared yourself to represent yourself. I would like to again caution you, advise you, whatever the word would be, you have a very very good Public Defender that’s here to represent you. I know you all have been working well together. I would just again ask you to consider letting Ms. Marine handle this case for you completely as opposed to representing yourself in front of a jury. She is an exceptional lawyer. I’m not trying to—
THE DEFENDANT:
I know.
THE COURT:
— persuade you otherwise, but it’s something that I really want to make sure on the record that you have considered, that you have weighed, the advantages to having someone who is trained to do this. And who does it everyday in front of juries and in front of Judges, represent those that are accused of crimes.
luTHE DEFENDANT:
I understand, your Honor, I do. I'm — I got a lot of help. I have a lot of good help right now. She’s doing a real good job with that. I’m ready to move on.
THE COURT:
All right. You still wish to represent yourself?
THE DEFENDANT:
Yes, your Honor.
THE COURT:
You have conceded that Ms. Marine is going to select the jury. Jury selection. THE DEFENDANT:
Yes, your Honor.
THE COURT:
Mr. Gauthier, again, you have always shown respect to the Court, your questions are not irrelevant for the most part, on what you are suppose [sic] to be doing. I am again going to caution you though if you start to testify during your questioning or if your questioning becomes more of you making a case rather than what the purpose of that is, ... or if you start to, you know, not be able to follow the rules of criminal procedure, I will ask Ms. Marine to at that point step in and assume representation....
THE DEFENDANT:
Thank you, your Honor. I appreciate that.

Although none of the colloquies covered matters such as Mr. Gauthier’s education, age, or experience or the nature of the charges against him and the range of penalties for the charges, it is clear from the record that Mr. Gauthier was well aware of his right to have counsel represent him. Additionally, he had voluntarily chosen to represent himself, even though he was pleased with the assistance he had | ^received from his court appointed counsel. Further, the record reflects that the trial court judge clearly warned him of the dangers and pitfalls of representing himself at trial.

Although the trial judge did not specifically inquire about Mr. Gauthier’s educational level and experience, the trial judge had gleaned information about Mr. Gauthier prior to the trial. She had observed Mr. Gauthier conduct the questioning of one of the members of the sanity commission in a pretrial hearing. Additionally, she had heard the testimony of the witnesses at both the competency and sanity hearings, and the testimony indicated that Mr. Gauthier was intelligent and “fairly articulate.”

From her pretrial observations of Mr. Gauthier, the trial judge could determine that Mr. Gauthier was articulate, that he generally asked relevant questions, that he was respectful in court, and that he was intelligent. Also, he stated in a pretrial hearing that he needed to use the law library at the prison, indicating that he was aware of the procedures followed in the criminal justice system and that he was not a stranger to the system. Additionally, Mr. Gauthier’s questioning of one of the members of the sanity commission at the pretrial hearing clearly showed that he was well aware of the nature of his plea of not guilty by reason of insanity. Not only did Mr. Gauthier question the witness regarding the bizarre behavior that he exhibited when he was arrested, he also asked questions designed to question the validity of his sanity evaluation. For example, he asked whether a report stating that “I have an extremely elevated level of paranoia and I may be delusional at times” had been reviewed by the witness. Based on her observations, the trial judge had sufficient evidence that Mr. Gauthier knowingly waived his right to counsel and was competent to do so.

|1fiThe face of the record in this case confirms that the trial court judge was correct in determining that Mr. Gauthier was sufficiently articulate and intelligent to knowingly and voluntarily waive his right to counsel. For example, the record contains copies of letters that he wrote that demonstrate that he was quite literate, and the record contains handwritten notes of relevant and considered questions that he wanted to ask the witnesses at his trial. Additionally, Mr. Gauthier relied on his court appointed counsel to conduct the selection of the jury, to raise evidentiary objections, and to conduct the questioning of the victim.

Based on the foregoing, we find that Mr. Gauthier made a voluntary, knowing, and intelligent waiver of his right to counsel. This assignment of error is without merit.

Assignment of En-or No. 2: The State failed to prove the defendant guilty of intimidation of a witness beyond a reasonable doubt.

Mr. Gauthier asserts that the evidence against him was insufficient to support a finding that he intimidated Ms. Bouvier, who was both the victim and a witness in this case. The Louisiana Supreme Court, in considering the issue of the sufficiency of evidence necessary to support a criminal conviction, has held that appellate courts in Louisiana are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See, e.g., State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18; State v. Mussall, 523 So.2d 1305, 1309 (La.1988).

In the Jackson case, the United States Supreme Court held that the Due Process Clause of the Fourteenth Amendment to the United States Constitution, U.S. Const, amend. XIV, § 1, creates the following standard of review for federal courts reviewing a state conviction:

117[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be ... whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

443 U.S. at 318-19, 99 S.Ct. 2781 at 2788-89 (footnote omitted) (citation omitted).

In the Mussall case, the Louisiana Supreme Court stated that “this court ... recognized that ... the Jackson holding also applies to state direct review of criminal convictions.... ” 523 So.2d at 1309. The Supreme Court also recognized that the Louisiana Constitution has a due process clause “virtually identical to its Fourteenth Amendment model. La. Const., Art. I, § 2.” Id.

The Supreme Court in Mussall held that a review of the record in a criminal case does not require the reviewing court to determine whether the reviewing court believes the evidence at the trial established guilt beyond a reasonable doubt. The Supreme Court said:

[A] reviewing court must consider the record through the eyes of a hypothetical rational trier of fact who interprets all of the evidence as favorably to the prosecution as any rational fact finder can.... [T]he inquiry requires the reviewing court to ask whether such a hypothetical rational trier of fact interpreting all of the evidence in this manner could have found the essential elements of the crime beyond a reasonable doubt.

523 So.2d at 1309-10 (footnotes omitted).

In State v. Williams, 05-0459 (La. App. 4 Cir. 1/18/06), 925 So.2d 567, this Court articulated the standard of review that is applicable to a claim that the li8evidence produced at a criminal trial was constitutionally insufficient to support a conviction. This Court stated:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.”

925 So.2d at 575, quoting State v. Neal, 00-0674, p. 9 (La.6/29/01), 796 So.2d 649, 657. See also State v. Sykes, 04-0947, 04-1199, pp. 6-7 (La.App. 4 Cir. 3/9/05), 900 So.2d 156, 161.

In the instant case, Mr. Gauthier was charged with intimidating a witness in violation of La. R.S. 14:129.1, which reads in relevant part as follows:

No person shall intentionally:

(a) Intimidate or impede, by threat of force or force, or attempt to intimidate or impede, by threat of force or force, a witness with intent to influence his testimony, his reporting of criminal conduct or his appearance at a judicial proceeding;

La. R.S. 14:129.1 defines the term “witness” to include a person who is a victim of criminal conduct, a person who has testified in court under oath, a person who has reported a crime, and a person who has been served with a court subpoena.

The evidence that was introduced at trial to support the charge of intimidating a witness against Mr. Gauthier consisted of excerpts of letters he wrote to Ms. Bouvier after his arrest. Additionally, Ms. Bouvier testified regarding oral threats Mr.. Gau-thier had made to her regarding what would happen to her if she reported to the police the beatings he had inflicted upon her.

liflMs.' Bouvier testified that Mr. Gauthier had told her numerous times that he would kill her if she reported his abuse to the police. Ms. Bouvier also testified that when she was making noise while Mr. Gauthier was beating her, he told her that if the neighbors called the police, “then by the time they would have came [sic] in there would have been nothing left of me.”

At trial letters authored by Mr. Gauthier that were introduced into evidence contained threats and manifested anger toward Ms. Bouvier. It is clear from the text of the letters that Mr. Gauthier intimidated Ms. Bouvier by threat of force regarding her potential testimony at his trial on the battery charge. Although in the letters Mr. Gauthier did profess his deep love for Ms. Bouvier and apologize profusely for the beating he admitted administering to her, he also threatened her in the letters.

At trial Ms. Bouvier read the following excerpt from qne of the letters that Mr. Gauthier wrote to her while he was in jail:

Damn, you, Ms. Bouvier.... Iam ready to kiss you passionately then ring your fucking neck. What the hell is wrong with you? Did you fuck the devil while I was at work or just those cops or even a lawyer and the judge. Probably all of them at the same time.... If you want me to want to kill you, you’ve done it. It won’t bring me any pleasure to do it, but it’s becoming necessary. I hope you do change your ways. But if you don’t I hope you are beaten, raped, then killed.... I still love you. But it won’t stop me from killing you if you don’t start showing some compassion for the things you are doing to me. You are so self righteous, aren’t you? There is a special place in hell for you and I’ll put you there if you don’t change. I’m not scared of any charges, bitch. I am in here for life. Your intimidation charges are going to be murder charges soon. Fuck the pain our children are going to feel.... I’ll be doing them a favor by killing you....

IsJn other letters, Mr. Gauthier threatened to cut off Ms. Bouvier’s head, talked about escaping from jail and finding Ms. Bouvier, and stated that Ms. Bouvier would be “nuts from all the funerals you’ll be going to, if you don’t attempt to right your wrongs.” One of Mr. Gauthier’s letters also said that “I could have hurt you a lOOOxs over, or your family, all arrangements are already made.” In yet another letter, Mr. Gauthier admitted that he had threatened Ms. Bouvier and expressed remorse for what he had done. Mr. Gauthier also wrote that “[y]ou have gone too far Tracy, you’ll pay for it, trust me.”

In a chilling excerpt from a letter that Ms. Bouvier read at trial, Mr. Gauthier said:

So now you are a target. You always will be now unless you make a few changes in yourself.... After three months have past [sic] you will bring or [sic] children to see me for a very civilized visit. If not people in your life will start disappearing. This is no joke.... So quit fucking with the D.A. and do the right thing.... But now you are the evil bitch that needs to be put in check. And believe me you are going to be. Enough of the right people already know how to find you, where to find you and your parents. And believe me it’s hard to prevent things from happening right now. So you should try to be the sweet woman you pretend to be. Understand this, Tracy, and understand it well, I can reach you or them easily.

In one letter that Mr. Gauthier wrote to Ms. Bouvier, he even explained that he had spoken with someone in jail who had experienced problems with his wife and that this person had explained to him “what is going to happen and how it could go if you were serious about not pressing charges on me.” Mr. Gauthier suggested to Ms. Bouvier that “if you want, tell the judge we argued, things got out of hand and that you don’t want to press charges, that the D.A. is pushing it.” Mr. Gauthier then explained that “[t]he judge would at that time dismiss the case.” In |21 another letter, Mr. Gauthier told Ms. Bouvier that for him to avoid a lengthy prison sentence, “you have to fill out an affidavit stating that you don’t want your statement you gave at the police station to be used against me.” Additionally, Mr. Gauthier said that if the State still insisted on prosecuting him, he needed Ms. Bouvier to “testify that I didn’t intend to hurt you and that you never cried or told me to stop when it was happening.”

Based on the record we find that the evidence to support Mr. Gauthier’s conviction for intimidating a witness is not only sufficient, it is also overwhelming. Clearly, any rational trier of fact viewing the evidence would have found the essential elements of the crime of intimidating a witness beyond a reasonable doubt. This assignment of error has no merit.

Assignment of Error No. S: The trial court erred in imposing the maximum sentence which is unconstitutionally excessive under the circumstances.

Mr. Gauthier argues in this assignment of error that the trial court judge imposed sentences that were excessive. He also asserts that the judge failed to give sufficient reasons for imposing the maximum sentence in connection with his conviction for intimidating a witness.

The United States Constitution prohibits “cruel and unusual punishments.” U.S. Const, amend. VIII. The Louisiana Constitution expressly provides that “[n]o law shall subject any person to cruel, excessive, or unusual punishment.” La. Const, art. 1, § 20.

In State v. Baxley, 94-2982, pp. 4-5 (La.5/22/95), 656 So.2d 973, 977, the Louisiana Supreme Court stated that the deliberate inclusion of the prohibition against excessive sentences in the state constitution by its redactors imposed on the court the duty to review the sentencing provisions of criminal statutes. The | ¡^Supreme Court further stated that the court is permitted to determine both whether the statutory range of sentences and the sentence of a particular offender is excessive, even if that offender’s sentence is within the prescribed statutory range. Id.

In State v. Bonanno, 384 So.2d 355 (La.1980), the Louisiana Supreme Court discussed the criteria for determining whether a sentence is unconstitutionally excessive as follows:

[T]o determine whether a certain penalty is excessive we must determine whether that penalty is grossly disproportionate to the severity of the crime. To determine whether the penalty is grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.

384 So.2d at 358 (citations omitted).

In State v. Soco, 441 So.2d 719 (La.1983), the Supreme Court also stated that “[mjaximum sentences provided by the statutes are reserved for the ‘worst kind of offender’.” Id. at 720, citing State v. Quebedeaux, 424 So.2d 1009, 1014 (La. 1982), The Supreme Court further stated:

In order for there to be proper review of the sentence to determine its constitutionality, La. Const, art. 1, § 20, that is, whether the defendant is .the worst kind of offender, an adequate record specifying the basis for the sentence must be made. This record is mandated by La. C.Cr.P. 894.1, which also provides the sentencing judge with guidelines to follow when passing sentence.

Id.

The Supreme Court has also stated that “[i]f the judge records the factors affecting his sentencing decision,, the sentence should not be set aside as excessive unless it is grossly disproportionate to the offense or represents nothing more than 1 gathe needless infliction of pain and suffering.” State v. Pike, 426 So.2d 1329, 1335 (La.1983). Finally, in an 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. Smith, 01-2574, pp. 6-7 (La.1/14/03), 839 So.2d 1, 4.

In the instant case, in imposing Mr. Gauthier’s sentences, the trial court considered a pre-sentence investigation report and the testimony given at the sentencing hearing by both Ms. Bouvier and Mr. Gauthier. The pre-sentence report reflected prior encounters with the criminal justice system, and Ms. Bouvier’s testimony revealed an ongoing fear of retaliation from Mr. Gauthier.

Ms. Bouvier testified that at the time of the sentencing hearing she remained afraid of Mr. Gauthier and believed that he would hurt her after his release from prison. She stated that she thought that he would wait a while after his release to harm her, “because he knows that if anything was [sic] to happen to me right away that they’ll automatically know that it was him.” Nevertheless, she was convinced that “one day” he would harm her. Ms. Bouvier’s testimony demonstrates that Mr. Gauthier’s actions resulted in her fearing for her safety well into the future.

Mr. Gauthier spoke on his own behalf at the sentencing hearing. He challenged the reports of prior instances of domestic abuse that he had perpetrated against Ms. Bouvier by arguing that there was no proof of these events in the form of hospital records or statements from third party witnesses. He also stated that if he had abused Ms. Gauthier “prior to this bruising on her arm, then she would have left me much sooner.” Clearly, Mr. Gauthier was oblivious to the fact that Ms. Bouvier was so afraid of his retaliation that fear prevented her from leaving him sooner. Mr. Gauthier also alluded to a civil custody proceeding in which the judge | ^imposed a thirty-six month contempt sentence on him for his repeated violations of a restraining order. Additionally, Mr. Gauthier attempted to shift blame for his attack on Ms. Bouvier to her. Finally, he claimed that all her actions in pursuing criminal charges against him were motivated by “vindictiveness” and that she never believed his threats that he would kill her.

Mr. Gauthier also testified regarding mitigating circumstances in an attempt to persuade the trial court to impose a more lenient sentence. He said that his grandfather was ill and that his family hoped that he would be released from prison before his grandfather died. Also, Mr. Gauthier stated that his father was willing to assist him with finding a condominium where he could live and with obtaining a truck upon his release from prison. Yet, he also stated that he might even consider reconciling with Ms. Bouvier, indicating that he failed to grasp the devastating effect that his crimes had on Ms. Bouvier.

In imposing the maximum sentences on Mr. Gauthier, the trial court judge stated that she had considered the sentencing guidelines in La.C.Cr.P. art. 894.1 and that she had determined that any lesser sentences would “certainly deprecate the seriousness of the offense.” The trial court judge also considered Mr. Gauthier’s criminal history that was included in the pre-sentence investigation report.

The trial judge further stated that Mr. Gauthier needed correctional treatment and that there was an undue risk that he would commit another crime if he were given a suspended sentence or probation. In sentencing Mr. Gauthier, the trial judge took “into account the certain element of potential harm and actual threats of, or actual violence used in the commission of the offense.” The judge further ^stated that the threats had included repeated letters in which Mr. Gauthier had detailed his “intentions of future harm to the victim in this matter.”

Based on the testimony of both Mr. Gauthier and Mr. Bouvier at the sentencing hearing and the threatening letters that he wrote to her, the trial court judge did not abuse her discretion in imposing the maximum sentences on Mr. Gauthier for his crimes. We also note that Mr. Gauthier’s comments at the sentencing hearing reflected that he failed to comprehend the seriousness of the crimes he had committed. For example, he referred to the violent beating he had administered to Ms. Bouvier as “this bruising on her arm.”

Mr. Gauthier’s sentences were not unconstitutionally excessive. This assignment of error is without merit.

CONCLUSION

Mr. Gauthier’s assignments of error are without merit. His sentence, as amended in this opinion, and his conviction are hereby affirmed.

CONVICTION AFFIRMED AND SENTENCE, AS AMENDED, AFFIRMED.

      . Mr. Gauthier was charged in the bill of information with second degree battery, however.

      . La.C.Cr.P. art. 879 requires all prison sentences to be determinate.

      . An attorney was present with Mr. Gauthier at the competency hearing, and he assisted Mr. Gauthier in representing himself when Mr. Gauthier entered his plea of not guilty and not guilty by reason of insanity. A different attorney, who assisted Mr. Gauthier at trial, was later permanently assigned to Mr. Gauthier's case.