author: PEATROSS, J.

text:
    ENTRADA COMPANY, L.L.C., Plaintiff-Appellee v. Quantella P. MOORE, et al., Defendants-Appellants.
    No. 41,414-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 9, 2006.

      Minifield & Harper, by Pamela R. Harper, Minden, for Defendants/Appellants.
    Douglas L. Stokes, Jr., Jonesboro, for Plaintiff/Appellee.
    Charles M. Bradshaw, II, Ruston, for Defendants/Appellees.
    Charles C. Foti, Jr., Baton Rouge, for the State of Louisiana.
    Before PEATROSS, MOORE & LOLLEY, JJ.
   PEATROSS, J.

I,This case surrounds the rights to a Claiborne Parish, Louisiana property (hereinafter, “the Pickens property”) which was sold at Sheriffs sale following a partition by licitation. A dispute arose after the Entrada Company, L.L.C. (“En-trada”) purchased a 7/72nd interest in the Pickens property and sought partition without (allegedly) naming several eo-owners thereto. Quantella Moore, et al. (“Appellants”), responded to the partition, asserting their rights in the Pickens property. After a trial on the merits, the trial judge granted a partition by licitation (and the Sheriffs sale ensued). From this ruling, the Appellants took a devolu-tive appeal. For the reasons set forth herein, we affirm.

FACTS

Entrada is a buyer and seller of properties in rural parishes of Louisiana. Its managing members are James Steele, III, and Robert McCormick. On June 30, 2000, Mr. Steele purchased an (alleged) undivided 7/72nd interest of the Pickens property. On September 4, 2001, he sold the Pickens property to Entrada. On September 30, 2002, Entrada filed a Petition for Partition of Immovable Property by Licitation against several of the co-owners, alleging that it was the undivided owner of the 7/72nd interest in said property. On March 3, 2003, Appellants filed an Answer alleging, inter alia, that many of the defendants listed in Entrada’s petition were now deceased and that all of the interested heirs were not listed.

li>Qn February 13, 2004, Appellants filed a Peremptory Exception of Non-Joinder of an Indispensable Party, under La. C.C.P. arts. 641 and 642. At this juncture, they also made a Constitutional challenge to La. R.S. 13:4985. On March 10, 2004, a hearing was held and the exception was denied by the trial court. In its Reasons for Judgment, the trial court relied on Fowler v. Iles, 517 So.2d 1083 (La.App. 3d Cir.1987), a factually similar case, in which the appellate court affirmed the lower court’s denial of a similar exception. The trial court also denied the Constitutional challenges, stating that La. R.S. 13:4985 was “constitutional until the Supreme Court tells us its not.”

On July 9, 2004, Appellants appealed the trial court’s denial to this court and, ten days later, Entrada filed an opposition and an Order for Devolutive Appeal alleging that the judgment was not final and that an interlocutory judgment could be appealed only if there was a showing of irreparable injury. Accordingly, Entrada argued that no such showing was | ¡¡made by Appellants in this case. On October 14, 2004, this court dismissed the case because the appeal was “interlocutory and the appellants made no showing of irreparable harm.”

A trial on the merits commenced on January 13, 2005, and concluded on May 12, 2005. On July 20, 2005, the trial court granted the partition by licitation of the Pickens property, relying on La. C.C.P. art. 4625. In its Reasons for Judgment, the court stated:

The plaintiffs herein proved at the trial that they were co-owners, they also testified that they did not want to be co-owners in indivisión any longer, and they also proved that the property could not be divided in kind without diminution in its value and they proved that at least one of the co-owners was a nonresident of the State of Louisiana. Therefore, it is this Court’s determination that the plaintiffs herein have proved by a preponderance of the evidence that the partition by licitation should be ordered.

A judgment was signed on December 15, 2005; and, on February 15, 2006, the Appellants sought a devolutive appeal with this court.

Entrada then advertised the Pickens property up for sheriffs sale at public auction without the benefit of appraisement. On April 26, 2006, in a bidding contest between Mr. Steele and LaFaye Jackson, the latter won the entire tract at a price of $182,000.

After the matter had been added to this court’s docket, Entrada filed a Motion to Dismiss the matter as moot. We have elected to refer said motion to the merits.

I ¿DISCUSSION

Issue One (verbatim): Whether LSA-R.S. 13:4985 violates the Due process Clauses of Article 1, §§ 2 and 4 of the Louisiana State Constitution and the Fourteenth Amendment of the United States Constitution and is Void-for Vagueness? And, alternatively, whether Appellants’ Peremptory Exception of Non-Joinder of an Indispensable Party Under Articles 641 and 642 should have been granted?

Issue Two (verbatim): Whether the trial court erred in granting Entrada’s partition by licitation?

Appellants first assert that Entrada only filed suit “against some of the co-owners to judicially partition the land.” (Emphasis Appellants’). They claim that a simple title search would have revealed the unnamed co-owners. Accordingly, Appellants argue that Entrada’s petition should be dismissed, due to non-joinder of certain parties, per La. C.C.P. arts. 641 and 642, which state:

Art. 641. Joinder of parties needed for just adjudication

A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

Art. 642. Determination by court whenever joinder not feasible

|BIf a person described in Article 641 cannot be made a party, the court shall determine whether the action should proceed among the parties before it, or should be dismissed. The factors to be considered by the court include:
(1) To what extent a judgment rendered in the person’s absence might be prejudicial to him or those already present.
(2) The extent to which the prejudice can be lessened or avoided by protective provisions in the judgment, by the shaping of relief, or by other measures.
(3) Whether a judgment rendered in the person’s absence will be adequate.
(4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

Appellants assert that the purpose of the nonjoinder of an indispensable party articles of the Code of Civil Procedure — articles 641 and 642 — is to protect an absent party from prejudice and harassment and to prevent repeated litigation.

Similarly, they argue that La. R.S. 13:4985 is unconstitutional. La. R.S. 13:4985 states:

§ 4985. Nonjoinder of co-owners

Where real property is partitioned, either in kind or by licitation, by either judicial or conventional partition the fact that one or more co-owners are not parties thereto shall not affect the validity of such partition as to the co-owners who are parties thereto or their heirs or assigns; provided that the rights of any co-owner not a party to such partition shall not be affected thereby and the interest of such co-owner in the property partitioned shall remain the same as if the property had not been partitioned.

Appellants contend that this statute is vio-lative of Article 1, §§ 2 and 4 of the Louisiana Constitution and the Due Process Clause of the United States | (¡Constitution. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). They note that, prior to the enactment of the aforementioned statute, Louisiana courts uniformly held that a failure to properly join any co-owner in a partition proceeding invalidated the proceeding as to all co-owners. See, Johnston v. Burton, 202 La. 152, 11 So.2d 513 (1942); Amerada Petroleum Corp. v. Reese, 195 La. 359, 196 So. 558 (1940). They note that, since the statute came into existence, some courts have refused to order a party to be joined in a partition proceeding, notwithstanding the language of La. R.S. 13:4985, supra. See, Brodnax v. Williamson, 82-39 (La.App. 3d Cir.1982), 417 So.2d 74.

Appellants also argue that, by successfully bidding at the Sheriffs sale, Mr. Jackson took the deed of ownership and now has the potential of acquiring the entirety of the Pickens property under ten-year acquisitive prescription. They cite La. C.C. art. 3474, which states:

This prescription runs against absent persons and incompetents, including minors and interdicts.

Similarly, La. C.C. art. 3475 states:

The requisites for acquisitive prescription of ten years are: possession of ten years, good faith, just title, and a thing susceptible of acquisitive prescription.

From this, Appellants state that Mr. Jackson could potentially fall into ownership of the entirety of the Pickens property even though several unnamed co-owners were never made aware of the Sheriffs sale.

17Appellants also argue that the trial court’s ruling in this matter constituted a “blatant violation” of the Due Process Clause guaranteed by the U.S. Constitution and the Louisiana Constitution. They claim that several of the co-owners to this case had no idea that a Sheriffs sale was going to occur and that their respective property interests were going to hang in the balance. Appellants asserts that La. R.S. 13:4985, supra, also adversely affects the substantive rights of parties to a suit by allowing a plaintiff the “luxury of choosing his adversary.” They theorize that the statute allows a potential plaintiff to sue the least wealthy among defendant/property owners, thus forcing the highest bid on a piece of property to be relatively low and leaving the defendant/property owner with a small share of the sale proceeds.

Appellants further argue that, under La. R.S. 13:4985, supra, plaintiffs could conspire and “selectively discriminate and litigate against the remaining co-owners when they want those co-owners out of the property.” Appellants note that their Answer to Entrada gave the names of several potential co-owners, many of whom are now deceased. Despite being made aware of this, Entrada never amended its petition to include those potential co-owners, nor did it undertake any further discovery regarding other potential co-owners. They assert that this action by Entrada amounted to “selective litigation.”

Appellants further argue that La. R.S. 13:4985, supra, is unconstitutionally vague. They cite Groome Resources Ltd., L.L.C. v. Parish of Jefferson, 234 F.3d 192 (5th Cir.2000), which held that a statute |Ris unconstitutionally vague if it does not give a “person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Accordingly, Appellants state that La. R.S. 13:4985, supra, is unconstitutionally vague because it does not address what happens to co-owners’ interest who were not parties to the partition suit; and, further, it does not address what is to become of the undivided interests that are to be partitioned. They state that the statute is vague in that it “really is no rule at all.”

In their second issue, Appellants argue that the trial court erred when it ordered a partition by licitation of the Pickens property. They state that La. C.C.P. art. 4625, supra, means that an absentee co-owner must be made party to a suit and represented by a curator ad hoc. Appellants cite La. C.C.P. art. 4622, which states:

The petition for the partition of property in which an absentee owns an interest, under the articles of this Chapter, shall allege the facts showing that the absent and unrepresented defendant is an absentee, as defined in Article 5251, shall describe the property sought to be partitioned and allege the ownership interests thereof, and shall be supported by an affidavit of the petitioner or of his counsel that the facts alleged in the petition are true.

From this, Appellants assert that Entrada failed to list all of the absentee defendants and their respective ownership interests. They argue that several co-owners’ respective interests seem to have “vanished” into thin air.

Appellants further argue that the experts in this case, Mr. Toft, Mr. Steele and Charles Smith, were “clearly biased and prejudicial.” They note that the three men are close friends and that Mr. Toft is paid a monthly | stipend by Entrada to research titles. Appellants contend that Mr. Steele and Mr. Smith’s respective fields of expertise change “on a case-by-case basis.” They note that, in Entrada Co. v. Unopened Succ., 38,800 (La.App. 2d Cir.9/22/04), 882 So.2d 661, the two men were accepted as experts in “the valuation of undivided interests in real property.” To the contrary, however, in the case sub judice, their accepted field of expertise was in “buying and selling Louisiana immovable property.”

In summation, Appellants contend that La. R.S. 13:4985 should be declared unconstitutional because it adversely affects the rights of co-owners to partitioned land and, similarly, that their Peremptory Exception of Non-Joinder of an Indispensable Party should have been granted by the trial court.

Entrada responds that Appellants’ first assignment of error is without merit. It notes that the court in State Civil Serv. Com’n v. Dept. of Public Safety Dir., 03-1702 (La.4/14/04), 873 So.2d 636, held that statutes are presumptively valid and the constitutionality of a statute should be upheld whenever possible. Similarly, Allain v. Martco Partnership, 02-1796 (La.5/23/03), 851 So.2d 974, stated that, if there is any doubt as to the constitutionality of a statute, the issue must be resolved in favor of its constitutionality unless the opponent clearly establishes the constitutional aim was to deny the Legislature the power to enact such a statute.

Entrada next submits that the arguments of Appellants in this matter can be compared to a four-legged stool. It notes that a “stool is only solid if its four legs are solid”; and, in turn, the four argument legs of Appellants in |inthis case are defective. Entrada states that Appellants’ first argument (that other co-owners were not included in the suit) is misplaced and that Appellants could have added those parties at any time in the suit by filing an incidental demand, per La. C.C.P. art. 1031(A). This article provides:

A. A demand incidental to the principal demand may be instituted against an adverse party, a co-party, or against a third person.

Accordingly, Entrada asserts that, if the addition of all of the co-owners to this suit was so imperative, they could have added them by filing an incidental demand.

Entrada further notes that the joinder of a co-owner to property is governed by La. R.S. 13:4989, which states:

Nothing in R.S. 13:4985 through R.S. 13:4990 shall prevent any court in any judicial proceeding in which real property is sought to be partitioned, upon proper motion or exception, from ordering that any co-owner not then a party be joined as a party thereto.

From this, Entrada notes that nothing in either of the code or the statute provisions requires the joinder of alleged co-owners to be made by a plaintiff who is suing for partition. It further argues that Appellants’ assertions regarding the alleged co-owners are “disingenuous” because they (rather than Entrada) were in a better position to determine the existence of other co-owners.

Entrada further states that Appellants’ argument regarding the “luxury of choosing its adversary” is misplaced. It states that the aforementioned codal and statutory provisions actually deprive Entrada of any luxury of Inchoosing its adversary because the Appellants could have added any additional co-owners to the suit at any time. Accordingly, Entrada asserts the “first leg” of the Appellants’ stool is defective and should be rejected by this court.

Entrada next argues that the alleged unnamed co-owners are not left in a worse condition as a result of the partition by licitation in this case. It argues that those individuals may actually be in a better position as they have not lost any of their interest in the Pickens property. Entrada contends that, under La. R.S. 13:4985, any co-owners who owned an undivided interest in the property prior to the filing of this partition suit still own that exact same undivided interest in the property. This means (according to Entrada) that there could feasibly be “a fewer number of co-owners who jointly owned the property with non-joined co-owners.” Accordingly, Entrada claims that this “second leg” of the Appellants stool is defective and should be rejected.

Entrada next asserts that the result of the partition by licitation did not convey any portion of the interest of any (alleged) co-owner (not a party to this suit) to anyone. Accordingly, it contends that the winning bidder, Mr. Jackson, did not acquire (by just title) any interest of a non-joined co-owner. Entrada states that, as a result, any non-joined co-owner’s interest in the Pickens property would be lost by an acquisitive prescription of 30 years, rather than 10, as argued by Appellants.

Entrada next responds to Appellants’ assertion that several unnamed, nonjoined co-owners exist. It states that the only expert witness to testify h ¡.regarding this issue was Myron Toft. Entrada notes that Appellants offered no evidence to contradict Mr. Toft’s testimony as to who was (allegedly) an unnamed co-owner in this case; and, thus, his was uncontradicted expert testimony. It cites Fowler, supra, which, as discussed at length, supra, held that Louisiana law does not require that all co-owners be joined in order to make a partition by licitation binding on those co-owners who are parties to the suit. Entra-da bolsters its position by referencing Munsterman v. Crawford, 532 So.2d 264 (La.App. 3d Cir.1988), writ denied, 535 So.2d 743 (La.1989), which held that the judgment of the trial court was not null as to those persons who were made parties, even if some co-owners were not named parties to the underlying suit.

Entrada responds that three facts should be noted with regard to Appellants’ second assignment of error: first, Appellants offered no evidence or expert testimony as to how the Pickens property could be divided in kind and thereby eliminate the need for partition by licitation; second, they (Appellants) offered no evidence to contradict Mr. Steele’s expert testimony regarding the land itself; and, three, any ownership of mineral rights has no relevance as to who owned the undivided interest in the Pickens property.

Entrada argues that, because Appellants never offered partition in kind as a potential resolution of the litigation surrounding the Pickens property and never contradicted any expert witness’ testimony, the only logical conclusion was a partition by licitation. It states that the trial court was in the best position to assess the credibility of the witnesses to this case j13and made its judgment accordingly. From this, it states that there is no other way to divide the property, except to partition by licitation.

In summation, it contends that the trial judge was correct by ruling in favor of Entrada and, thus, granting the partition by licitation and resultant Sheriffs sale. We agree.

Our review of the record in the case sub judice reflects that the trial judge was correct in ruling in favor of Entrada and allowing the partition by licitation and Sheriffs sale. We find Munsterman, supra, and Fowler, supra, to be instructive in this matter. In Munsterman, supra, the third circuit stated:

We, therefore, conclude that even if some co-owners were not cited and made parties to the District Court proceedings, the judgment of the lower court is not null as to those persons who were made parties. (Citations omitted; emphasis ours.)

The Munsterman court went on to uphold the validity of La. R.S. 13:4985, supra, as a vehicle to provide partition by licitation, even if all co-owners were not joined.

In Fowler, supra, a factually similar case, the third circuit provided the following, very similar analysis:

Louisiana law does not require that all co-owners be joined in order to make the partition by licitation binding on those co-owners who are parties to the suit. (Emphasis ours.)

The Fowler court went on to state that a party defendant could not defeat a partition by licitation of immovable property with a peremptory exception of nonjoinder of an indispensable party. The third circuit went on to rule that, per La. C.C.P. art. 641, not all co-owners must be joined in order to make a partition by licitation binding upon those who are joined to a suit. [ uThe same operative situation arises before us in the case at bar. The non-joinder of the numerous (alleged) co-owners/heirs to the Pickens property are unaffected in that the partition by licitation and resultant Sheriffs sale was only binding upon those named party to the underlying litigation.

The record in the case sub judice further reflects that La. R.S. 13:4985, supra, is not void for vagueness. We note the language set forth in the Louisiana Supreme Court’s decision in Attain, supra, which stated:

In considering the constitutionality of a statute, jurisprudence recognizes the general presumption of a statute’s constitutionality. The party that challenges the statute’s constitutionality carries the burden of proving by clear and convincing evidence specific constitutional infirmities. (Citations omitted; emphasis ours.).

In the case at bar, our reading of the language in the statute is clear and, as discussed at length, supra, La. R.S. 13:4985 is meant to outline the precise situation which occurred in this case, i.e., that the fact that one or more co-owners to property are not named in litigation surrounding the case does not affect the validity of a partition to those who are involved in the same litigation. For these reasons, we reject both issues set forth by Appellants in this case.

CONCLUSION

For the reasons set forth in this opinion, the judgment of the trial court granting a partition by licitation of the Pickens property, in favor of Entrada Company, L.L.C., is affirmed. Costs of this appeal are assessed to Quantella Moore, et al.

AFFIRMED.

      .The following represents the full list of (alleged) heirs to the Pickens property, according to Appellants' brief:
      1. The heirs of Willie Pickens (who passed away shortly after this litigation commenced)
      2. The heirs of Roy Lee Ferrell
      3. The heirs of Perry C. Ferrell
      4. The heirs of Maggie Pickens Copes
      5. The heirs of Eddie Pickens
      6. The heirs of Minnie Pickens Smith
      7. The heirs of Amos Pickens
      8. The heirs of Moses Pickens
      9. The heirs of Will Pickens
      10. The heirs of John C. Pickens, Jr.
      11. The heirs of Minnie Pickens Smith (we note that this name is listed twice)
      12. The heirs of Grady Pickens, namely Kenneth D'Wayne Smith
      13. Rosie Lee Crawford Pickens — an alleged co-owner of the Pickens property. See generally, In re Succ. of Otis Lee Pickens, docket No. 5891.
      14. James Pickens — an heir of John Pickens, Sr., who is now deceased, but has children.
      15. Dennie Pickens
      16. Hattie Lee S. Tate
      17. Johnnie Lee Pickens

      . See, infra, for further discussion.

      . We have elected to combine these issues for the purposes of this opinion.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Jeffery L. WITHERS, Plaintiff-Respondent v. Cheryl Beth WITHERS (Watson), Defendant-Applicant.
    No. 41,072-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.
    Donald L. Kneipp, Monroe, for Respondent.
    Scott E. McElroy, Bastrop, for Applicant.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   MOORE, J.

| t This court granted the writ application of Cheryl Beth Withers arising from proceedings in the Fourth Judicial District Court, Morehouse Parish, the Honorable Wilson Rambo presiding. The sole issue is whether the district court erred when it ruled that Jeffrey Withers’ Motion for New Trial filed on February 22, 2005, was timely even though five months had passed after notice of judgment was mailed on September 8, 2004. Because we hold that the trial court was clearly wrong in finding that Mr. Withers never received notice of the judgment, we reverse the ruling and remand to the district court for further proceedings.

FACTS

The issue in this case arises from a ruling on the timeliness of Mr. Withers’ Motion for New Trial on the issue of interim and permanent spousal support. The written record establishes the following chronology of events which is sufficient for this court to render a decision in this case:

—June 4th, 2004. Scheduled Hearing Officer conference is re-set. Parties ordered to appear at conference on Julyl4, 2004, to fix interim and permanent spousal support, etc.
—July 14th, 2004. The conference is reset for Wednesday, September 1, 2004. Service sent to Mr. Withers’ attorney, Don Kneipp.
—August 20, 2004. Attorney Kneipp files a motion to withdraw because Mr. Withers will not respond to correspondence regarding the hearing set for September 1, 2004, and has not paid retainer fees. Service of the motion is sent to Mr. Withers at P.O. Box 897, Bastrop, La. 71220, an address he has used for five years.
—August 30, 2004. Order granting Attorney Kneipp’s motion to withdraw.
—September 1, 2004. Hearing Officer holds scheduled conference. Neither attorney Kneipp nor Mr. Withers attend. Hearing Officer makes recommendations.
1 j> — September 3, 2004. District Court signs Judgment adopting and implementing hearing officer’s recommendations.
—September 8, 2004. Notice of Judgment sent to Mr. Withers, pro se, 7807 Jaxon Road, Collinston, LA 71229.
—September 30, 2004. Motion For Immediate Income Assignment Order pursuant to September 3, 2004, judgment signed by trial court to be served on Mr. Withers’ employer, International Paper Company. Order specifies that a “petition to stay service” form be attached giving Mr. Withers 15 days to file the petition to stay service of the order.
—October 22, 2004. Motion For Immediate Income Assignment Order signed September 30, 2004, is filed.
—October 26, 2004. Mr. Withers is personally served with a motion for income assignment order pursuant to the September 3, 2004 judgment.
—October 27, 2004. Mr. Withers files form petition to stay service in which he alleges that he was served the motion of income assignment order on October 27, 2004, and moves for a stay of service until a hearing can be held. Mr. Withers gives his address as P.O. Box 897, Bastrop, LA 71221-0897.
—December 16, 2004. Hearing on the petition to stay held. Mr. Withers testified that his address is 7807 Jackson Road, Collinston, LA. The trial court signs order to serve International Paper Company with the income assignment order.
—February 22, 2005. Mr. Withers files a Motion for New Trial through his attorney, Don Kneipp.

After a hearing on the motion for new trial on July 25, 2005, the district court ruled that Mr. Withers’ motion for new trial was not untimely because the clerk of court mailed notice of the signing of the September 3, 2004, judgment to “7807 Jax-on Road, Collinston, Louisiana,” which the court ruled was a non-existent address and not the “address of record.” According to testimony, the Jaxon Road address was provided by Mr. Withers in an affidavit submitted to the Hearing Officer in June pursuant to |3the scheduled hearing that was eventually re-set and held on September 1, 2004. Nevertheless, the district court found that this did not constitute an “address of record,” and under La. C.C.P. art. 1571(B), notice should have been sent to Mr. Withers’ last known address of record to protect the judgment. See State, Dept. of Social Services, Office of Family Support in the Interest of James v. Passant, 95-911 (La.App. 3 Cir. 12/6/95), 664 So.2d 790.

OPINION

Adequate notice is one of the most basic elements of procedural due process. Hicks v. Schouest, 381 So.2d 977 (La.App. 4 Cir.1980). The record establishes that Mr. Withers had notice of the hearing officer conference on September 1, 2004, through his attorney of record, Don Kneipp. Neither Mr. Withers nor Mr. Kneipp, who filed a motion to withdraw as counsel on August 20, attended the hearing. Mr. Kneipp sent notice of the motion to withdraw to Mr. Withers at an address that the court found Mr. Withers had used for 5 years.

| ¿Mr. Withers admitted at the December 16, 2004, hearing on the motion to stay the income assignment that he was served with the motion for income assignment. That service occurred on October 26, 2004. This motion expressly states that judgment had been rendered and Mr. Withers testified at the December 16, 2004, hearing that when he was served with the income assignment, he understood that there had been a ruling. We therefore conclude that when Mr. Withers was served with the motion for income assignment, he had notice that a judgment had been rendered on September 3, 2004.

The delay for filing a motion for new trial is seven days commencing from the day after notice of the signing of a judgment is mailed. La. C.C.P. art. 1974. In this case, the record contains certification from the clerk of court that the judgment was mailed on September 8, 2004, to 7807 Jaxon Road, Collinston, La. Mr. Withers contends that he never received that notice, suggesting that it was because his correctly spelled address is 7807 Jackson Road, Collinston, La. He further notes that there is a nearby street named “Jax.”

Assuming, for the sake of argument, that Mr. Withers carried his burden of proving that he did not receive notice of the signing of the judgment mailed by the clerk of court because the street address was misspelled, for the following reasons, we conclude that his motion for a new trial was nevertheless untimely.

[Jn Malone v. Fowler, 228 So.2d 500 (La.App. 3 Cir.1969), the court held that where notice of signing of final judgment was not properly mailed by the clerk of court, the date of the beginning of the toll of the delays for applying for new trial commences on the day following actual receipt of notice. In that case, after taking the case under advisement, the court handed down a judgment that was signed on May 21, 1969. Rather than mail notice of the signing of the judgment to the attorney of record, the clerk put notice in the attorney’s box at the courthouse. However, the attorney did not actually find out that the judgment had been rendered and signed until June 9, 1969, when he called the courthouse and inquired whether a judgment had been rendered. Because there was no certificate by the clerk that notice of the signing of the judgment was mailed as required by La. C.C.P. art. 1913, and actual notice was not shown until June 9, the court held that the date of the beginning of the toll of the delays for applying for a new trial under Code of Civil Procedure Article 1974 would be June 10,1969.

In this instance, Mr. Withers admitted both by affidavit accompanying his motion to stay the income assignment and at the December 16, 2004, hearing on the motion to stay the income assignment that he found out there had been a judgment or ruling when he was personally served with notice of income assignment. The date of this service was October 26, 2004. Therefore, the delays for applying for a new trial commenced on the following day, October 27, 2004, under La. C.C.P. art. 1974. We therefore hold that the motion for new trial was untimely and must be dismissed.

^CONCLUSION

We conclude that the trial court was clearly wrong in ruling that the motion was not untimely. Accordingly, the trial court’s ruling is reversed, and we remand this case to district court for further proceedings.

REVERSED AND REMANDED.

      . La. C.C.P. art. 1571(B) reads:
      B. A party who appears in proper person before the court shall advise the court of his current address and any change of address during the pendency of the proceedings. The address and change of address shall be entered in the record of the proceedings. The failure of a party to provide such information does not affect the validity of any judgment rendered if notice of trial or other matters was sent to the party's last known address of record.

      . Interestingly, the district court never determined what address Mr. Withers had that was his "address of record.”

      . Mr. Kneipp sent Mr. Withers notice of his motion to withdraw on August 20, 2004, to Mr. Withers’ post office address at P.O. Box 897 in Bastrop, La. The motion was granted on August 30, 2004.

      .We disagree with the court’s finding that the address was non-existent. Under the doctrine of idem sonant, a written word does not get its meaning from its spelling, but from its sound. See State v. Foster, 164 La. 813, 114 So. 696 at 700 (1927). Jaxon and Jackson sound exactly alike, like Greenberg and Greenburg, and since there is no street spelled "Jaxon,” there should not be any confusion. Respondent tries to generate confusion by stating there is a Jax street, but in point of fact Jax and Jaxon are no more similar in sound than Greenberg is to Green.


text:
    STATE of Louisiana, Appellee v. Ronald HODGE, Appellant.
    No. 41,097-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Sam L. Jenkins, Jr., Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, Dale G. Cox, Bill Edwards, Dhu Thompson, Assistant District Attorneys, for Ap-pellee.
    Before BROWN, WILLIAMS and MOORE, JJ.
   MOORE, J.

| Ronald Hodge was indicted for the second degree murder of his brother, Alonzo Hodge, and the attempted second degree murder of Bridget Renee Webb. He waived trial by jury and elected a bench trial. After finding him guilty of manslaughter and attempted manslaughter, the court sentenced him to concurrent terms of 22 and 8 years at hard labor. Hodge now appeals, urging the evidence was insufficient to support the convictions and that the manslaughter sentence is excessive. We affirm.

Factual Background

The shootings occurred shortly after midnight on July 27, 2003, in the carport of his girlfriend’s house on Terrell Drive in the Eden Gardens area of Shreveport. The incident began hours earlier, however, at the house that Hodge and his brother shared around the corner on Cornelious Drive.

Hodge testified that when he got home from work on the evening of July 26, his unemployed brother Alonzo and Alonzo’s friend Bridget were there, and the house smelled of crack cocaine. Hodge left and spent several hours at a friend’s house; he returned feeling nauseated, and spent a long time in the bathroom. While he was indisposed, his girlfriend Deborah came over and asked through the closed bathroom door if she could borrow some money so Alonzo could take her to the store; Hodge told her to wait until he was finished. When he finally came out, Deborah and Alonzo had gone and his wallet was missing; he had left it in his pants pocket in his bedroom. Moments later, Deborah dropped off Alonzo; Bridget had stayed at the house the whole time.

| «Hodge asked Alonzo and Bridget about his wallet; they told him that Deborah had it, and suggested that all three should walk over to Deborah’s house to get it. They did so, and Deborah denied having it, but Bridget still accused her of taking it; voices were raised. Neighbors confirmed that most of the shouting was between Deborah and Bridget.

Hodge, Alonzo and Bridget walked back to Hodge’s house to search for the wallet, to no avail; they then walked back to Deborah’s two more times. Deborah loudly protested that she did not take the wallet. Hodge testified that he was feeling tired and ill, and just wanted to find his wallet and go to bed; however, he admitted that on one of the return trips to his house, he armed himself with a 9 mm Ruger pistol. Bridget admitted that she armed herself with a kitchen knife, and it transpired that Alonzo was carrying in his pants pocket a box cutter with an orange plastic sheath. Hodge testified that he knew both of them were armed.

The third time they came to her carport door, Deborah screamed that she did not have Hodge’s wallet, and slammed the door. According to Bridget, Hodge told them, “I’m tired of this. All I want is my m* * * * * f* * * * * * wallet,” and then pulled the gun out of his pants. That was the last thing she remembered. Hodge testified that Alonzo and Bridget had blocked him from leaving the carport; he knew they were both armed and he claimed he saw Alonzo reaching in his pants pocket. Hodge pulled out the Ruger and fired twice, first hitting Alonzo under his right eye, killing him. The second shot hit Bridget, who had turned away, in the side of her face. She sustained serious facial injuries but survived.

[«Hodge laid the gun on the car in the driveway and then returned to the door, smashing the diamond-shaped window and shouting that he needed to use the phone. Deborah’s brother phoned 911. When police arrived, Hodge walked out to meet them, his hands in the air; he told Officer Chris Procell, “I did it. I’ll go peaceful.”

Procedural History

Hodge was originally indicted for the first degree murder of Alonzo; by amended indictment, he was charged with the second degree murder of Alonzo and the attempted second degree murder of Bridget. As noted, he waived a jury and proceeded to a bench trial in March 2005.

The witnesses described the shootings, and the events that led to them, as outlined above. Bridget testified that she spent about one week in the hospital and still suffers from pain in the face and blurry vision in one eye; however, she signed an affidavit in February 2005 stating that she wished to dismiss and not prosecute any charges against Hodge. Deborah died of unrelated causes sometime before trial, and ■ obviously did not testify. Several witnesses, including Alonzo’s son, testified that Hodge enjoyed a fine reputation for nonviolence.

Hodge argued through counsel that the shootings happened “under circumstances of heat of passion, * * * under circumstances of loss of control, and * * * under circumstances that fit the definition of a manslaughter.” The district court agreed, finding him guilty of the manslaughter of Alonzo and the attempted manslaughter of Bridget. The court later sentenced him to concurrent sentences of 22 and 8 years at hard | ¿labor.

Discussion: Sufficiency of the Evidence

By his first assignment of error, Hodges urges the state presented insufficient evidence to convict him of manslaughter or attempted manslaughter. His primary contention is that he raised self-defense as an issue, thus shifting to the state the burden of proving that he did not act in self-defense. State v. Dooley, 38,763 (La.App. 2 Cir. 9/22/04), 882 So.2d 731, writ denied, 2004-2645 (La.2/18/05), 896 So.2d 30; State v. Cheatham, 38,413 (La.App. 2 Cir. 6/23/04), 877 So.2d 164, writ denied, 2004-2224 (La.6/24/05), 904 So.2d 717. He submits that his victims had been smoking cocaine all day, were acting erratically and tried to prevent him from leaving Deborah’s house; being “cornered” by two armed persons at close quarters, he “reasonably felt he had to resort to means of force to protect his life.” He also argues that all witnesses agreed he was not a violent person. Finally, he contends that the record simply does not support a finding that he acted in sudden passion or heat of blood. Instead, he submits, he was cool and reasonable in the effort to locate his missing wallet, and at most frustrated at the situation. He concludes that the only reasonable explanation for his conduct was self-defense.

The state responds that the manslaughter is not limited to “sudden passion killing,” La. R.S. 14:31 A(l), but also encompasses homicide committed without intent to cause death or great bodily harm, “when the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional |Bmisdemeanor directly affecting the person.” R.S. 14:31 A(2)(a). The state suggests that Hodge was engaged in several unenumerated felonies (aggravated battery, second degree battery, aggravated assault with a firearm), and an intentional misdemeanor directly affecting the person (aggravated assault). The state also shows that Hodge admitted, on cross examination, that Alonzo did not threaten him; moreover, Hodge could not have felt threatened as he was the only person armed with a gun and he was considerably larger than Alonzo. The state concludes that the evidence, viewed in the light most favorable to the prosecution, proved beyond a reasonable doubt that Hodge did not act in self-defense.

The standard of appellate review 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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing comb may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94. The trier of fact may therefore accept or reject, in whole or in part, the testimony |fiof any witness. State v. Updite, 38,423 (La.App. 2 Cir. 6/23/04), 877 So.2d 216, writ denied, 2004-1866 (La.11/24/04), 888 So.2d 229, and citations therein.

Self-defense is justification for a killing only if the person committing the homicide reasonably believes he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20(1); State v. Quiambao, 36,587 (La.App. 2 Cir. 12/11/02), 833 So.2d 1103, writ denied, 2003-0477 (La.5/16/03), 843 So.2d 1130. The state has the affirmative duty of proving beyond a reasonable doubt that the killing was not in self-defense. State v. Dooley, supra. Factors to consider in determining whether a defendant had a reasonable belief the killing was necessary are the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of his assailant’s bad character. State v. Hardeman, 467 So.2d 1163 (La.App. 2 Cir.1985).

On close review, we find the state sufficiently disproved Hodge’s theory of self-defense. Although Hodge testified he was cornered and thought that Alonzo and Bridget were reaching for their weapons, other evidence cast doubt on this claim. Hodge knew he was the only person with a gun; he was more physically imposing than Alonzo; Alonzo had not threatened him that evening, and Bridget had never done so. Crucially, he admitted he did not actually see either of his victims’ weapons. He also described a relationship in which he had taken care of his drug-addicted and unemployed brother, letting him stay in the house and paying his bills; it is |7unlikely that the dependent Alonzo would have physically threatened his benefactor. One of Deborah’s neighbors, Dominique “Nikki” Johnson, confirmed that she overheard no fighting or commotion in the carport immediately prior to the shootings. On this record, we cannot say the district court erred in implicitly rejecting the claim of self-defense.

Moreover, the evidence supports the essential elements of manslaughter and attempted manslaughter. Hodge was even-tempered for most of the evening, but he suddenly felt cornered by two knife-wielding people who had become very agitated. Bridget confirmed that after Deborah denied having the wallet, “this matter was getting serious.” Notably, Hodge argued in both opening and closing statements that his conduct fit the definition of manslaughter. On this record, we find that the state proved, beyond a reasonable doubt, that Hodge acted in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. R.S. 14:31 A(l). This assignment of error lacks merit.

Excessive Sentence

By his second assignment, Hodge urges the sentence of 22 years at hard labor for manslaughter was excessive. He contends that certain sentencing factors, La. C. Cr. P. art. 894.1 B, properly considered, warrant a much more lenient sentence:

(23) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm.
(25) There were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense.
|s(28) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant offense.
(29) The defendant’s criminal conduct was the result of circumstances unlikely to recur.
(31) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
(33) Any other relevant mitigating circumstance.

Specifically, Hodge argues that the 22-year sentence is tantamount to life for a 50-year-old like himself; that Alonzo’s son wrote a letter asking that Hodge receive a suspended sentence or “time served” for this offense; and that he has been a model prisoner, completing anger management, substance abuse and other adult education classes while at Caddo Correctional Center.

The state responds that the district court articulated reasons for sentence with special attention to the mitigating factors. The state contends that aggravating factors also applied: the crime was without provocation; Hodge knew or should have known his brother was high on crack cocaine and thus vulnerable; he created a risk of death or great bodily harm to more than one person; and he used actual violence, with a 9 mm semi-automatic pistol, in the commission of the offense.

Appellate review of sentences for excessiveness is two-pronged. First the record must show that the sentencing court considered the criteria of C. Cr. P. art. 894.1. The court is not required to list every aggravating and mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Smith, 433 So.2d 688 (La.1983); State 9v. Quiambao, supra. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Lanclos, 419 So.2d 475 (La.1982). The article does not require the court to assign any particular weight to any specific matters at sentencing. State v. Quiambao, supra.

The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 92-3120 (La.9/10/93), 623 So.2d 1276; State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158.

The district court cited several mitigating factors: Hodge’s lack of any significant criminal history (he had only a misdemeanor conviction for simple battery); his good employment history and community involvement; his remorse for the crimes; the large show of support from his family and friends; his exceptional rehabilitative efforts in jail, including tutoring GED students; and the position of Alonzo’s son, who was not opposed to a suspended or “time served” sentence. The court stated, however, that Hodge shot two people “after an evening of argument and flared tempers,” and accepted the state’s argument that the level of provocation could not alleviate the sentence to any great extent. We find that the district court | inadequately complied with Art. 894.1, utilizing the relevant factors and providing a factual basis for sentence.

The penalty for manslaughter is imprisonment at hard labor for not more than 40 years. La. R.S. 14:31 B. The instant sentence of 22 years is in the mi-drange and is commensurate with sentences for similar offenses. State v. Quiambao, supra; State v. Harris, 97-0300 (La.4/14/98), 711 So.2d 266; State v. George, 33,859 (La.App. 2 Cir. 9/27/00), 768 So.2d 748, writ denied, 2000-2806 (La.9/14/01), 796 So.2d 674. The element of hardship is inevitable for a defendant of Hodge’s age, but the sentence is tailored to the offense and the offender, serves acceptable penal goals, and does not shock our sense of justice. This assignment of error lacks merit.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, Ronald Hodge’s convictions and sentences are affirmed.

AFFIRMED.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Rusty Allan GREENWALT, Appellant.
    No. 41,145-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      G. Paul Marx, Lafayette, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Helene M. Carby, Assistant District Attorneys, for Appellee.
    Before PEATROSS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

11 Rusty Allan Greenwalt was originally charged for the aggravated rape of his 9-year-old stepsister. The state agreed to allow him to plead guilty to simple rape so that the victim would not have to testify. The trial court imposed a sentence of 15 years at hard labor without the benefit of probation, parole or suspension of sentence. Greenwalt appeals his sentence claiming that it is excessive. For the following reasons, we affirm.

The record shows that Greenwalt was indicted for aggravated rape at age 16 for sexual conduct involving his 9-year-old stepsister, J.D.R., whose date of birth is October 29, 1993. Because a guilty plea for simple rape was entered, the state’s factual recitation simply states that Green-walt violated La. R.S. 14:43 by “penetrating her anal, her anus or, and/or having oral and/or vaginal sexual intercourse” without lawful consent of the underage victim between January 1, 2003, and August 26, 2003. The state then supplied the trial court with information that Greenwalt had given a confession after being advised of his juvenile rights and with his father present. Greenwalt had been interviewed by two physicians appointed to determine Greenwalt’s competency to assist counsel in his defense. They both found Green-walt to be competent and of average intelligence. Greenwalt asserted to those physicians that the stepsister performed oral sex on him.

The only assignment of error asserted by Greenwalt on appeal is his claim that the sentence imposed was excessive. As stated, Greenwalt was sentenced to 15 years at hard labor without the benefit of probation, parole bor suspension of sentence. Although the sentence may be harsh, for the following reasons, we conclude that it is not excessive.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App. 2d Cir.04/02/97), 691 So.2d 864. A substantial advantage obtained by means of a plea bargain is a legitimate consideration in sentencing. State v. Ross, 35,552 (La.App. 2d Cir.02/27/02), 811 So.2d 176.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2d Cir.03/01/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385.

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

The penalty for simple rape is imprisonment with or without hard labor for not more than 25 years without benefit of parole, probation or suspension of sentence. Prior to imposing a sentence, the trial court considered Greenwalt’s presentence investigation report. The court noted that Greenwalt was very young when he committed these crimes and that he had no prior criminal history. The trial court imposed a sentence of 15 years at hard labor, without the benefit of parole, probation or suspension of sentence. Considering the totality of the record, this sentence, while definitely harsh and long for this youthful offender, does not appear constitutionally excessive for this defendant who admitted he engaged in sex acts with his stepsister over a period of time.

Although Greenwalt was only a juvenile himself when this pattern of behavior began, the crime is one that impacts this even younger victim in many dimensions. The pain and suffering caused to the victim may be irreparable. Notably, the criminal activity took place repeatedly over an extended period of time. Further, although Greenwalt was a juvenile as well, there was a significant disparity in the ages between him and the victim. Green-walt received substantial benefits when the state agreed to |4aIlow him to plead guilty to simple rape instead of facing a potential conviction for aggravated rape and a life sentence. We note that the original crime for which Greenwalt was indicted, aggravated rape, mandates treatment as an adult — which underscores the severity of the criminal acts Greenwalt committed against his victim. See La. Ch. C. art. 305(A). So considering, we do not find that the sentence imposed is grossly disproportionate to the severity of the offense nor is it shocking to the sense of justice. This assignment is therefore without merit, and Rusty Allan Greenwalt’s conviction and sentence are hereby affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Appellee v. Johnny Lee CAPERS, Appellant.
    No. 41,231-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.
    Louisiana Appellate Project, by W. Jarred Franklin, for Appellant.
    Paul J. Carmouche, District Attorney, Ron Christopher Stamps, Assistant District Attorney, for Appellee.
    Before GASKINS, PEATROSS & DREW, JJ.
   PEATROSS, J.

| T Defendant, Johnny Lee Capers, was convicted of two counts of armed robbery with a firearm. He was sentenced as a third-felony offender to two life sentences, to be served without benefits and to run concurrently. Defendant now appeals his conviction and sentence. For the reasons stated herein, Defendant’s conviction is affirmed. Defendant’s sentence is vacated and the matter is remanded for further proceedings.

FACTS

On April 11, 2004, between 5:30 and 6:00 a.m., Cassandra Alexander and Melissa Miller entered the Plantation Inn in Shreveport under the pretense of inquiring about a room. A few minutes later, Defendant, armed with a semi-automatic handgun and wearing a hooded jacket and a bandana over his face, entered the hotel and demanded that the desk clerk give him the money from the cash drawer. Defendant took approximately $800 and told the clerk to lie face down on the floor. Defendant also stole a money bag from a woman opening the restaurant at the hotel.

Between 6:30 and 7:00 a.m. on the same day, Alexander and Miller went into the Comfort Inn and began “asking for rooms and negotiating prices” with the desk clerk. Defendant walked into the lobby and, this time, jumped over the counter, pointed the gun at the clerk and demanded money. The clerk testified that Defendant held the gun about one foot away, took two or three hundred dollars and told the clerk that he would kill him “another time.”

The hotels were equipped with surveillance cameras and videotapes of both robberies were entered into evidence. Corporal Danny Duddy [.¿testified that he found fingerprints of both female accomplices at the Comfort Inn, as well as a print of Defendant’s left index finger and palm. Miller and Alexander testified about the events of that morning. They testified that it was Defendant’s idea to rob the Plantation Inn. The women went in first to “distract the clerk” and look for cameras so that Defendant “could come in and rob him.” Both women testified that Defendant wore a bandana over his face and a hooded pullover or sweater. Miller testified that, after they robbed the Plantation Inn, Defendant said he wanted to “hit another lick,” which is street language for robbing another hotel. She stated that they used the same method to then rob the Comfort Inn. Alexander stated that she remembered Defendant jumping the counter at one robbery and saying that he would shoot during one robbery.

Defendant was charged with two counts of armed robbery under La. R.S. 14:64 with the bill of information detailing that he had used a handgun in the commission of those robberies. As previously stated, he was convicted of two counts of armed robbery with a firearm. Defendant was adjudicated a third-felony offender and sentenced to two life sentences without benefits, to be served concurrently. This appeal ensued.

DISCUSSION

Assignment No. 1 (verbatim): The evidence was insufficient to support the verdict.

The proper standard of appellate review for a sufficiency of the evidence claim 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 3v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

This court’s authority to review questions of fact in a criminal ease is limited to the sufficiency-of-the-evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const, art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2d Cir.5/8/96) 4674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760, 98-0282 (La.6/26/98), 719 So.2d 1048.

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64.

In the case sub judice, Defendant notes that the evidence used to convict him consisted of the testimony of Alexander and Miller, as well as prints found at the scene. He claims that the prints could have been created at an earlier time, that the testimony of Alexander and Miller was “unbelievable” and that the two women are the only recognizable people on the videotapes. On the other hand, the State argues that an accomplice is qualified to testify and that the jury apparently found Alexander and Miller to be credible witnesses. The State also claims that the prints corroborate the testimony presented at trial and notes that fingerprints of both Alexander and Miller were found at the scene.

This record reveals that Defendant’s accomplices entered the two hotels under the pretense of renting a room. The actual purpose was to “case the joint” or distract the clerk. Defendant then entered, wearing a bandana over his face and wielding a gun, and demanding that the desk clerk at each hotel give him the money in the cash drawers. At the Comfort Inn, Defendant jumped over the counter and held the gun on the clerk at close range, threatening to kill him “another time.” Both incidents were |Bcaptured on video and Defendant’s palm print was found on the counter at the Comfort Inn and a fingerprint found at the scene.

Miller and Alexander identified Defendant as the perpetrator of the robberies of both hotels and testified that it was Defendant’s idea to rob the hotels. Alexander stated that Defendant jumped the counter at one of the hotels and threatened to kill the clerk, which corroborates the testimony of Ramesh Venugopal, who was working at the Comfort Inn at the time of the robbery. The description of the clothing worn by Defendant given by both women supports the testimony of the two clerks and appears similar to the clothing worn by the man in the videotape. Further, fingerprints of both Alexander and Miller were found at the scene of the second robbery. Given the testimony of the clerks, police officers and the co-defendants, along with the videotapes and finger and palm prints entered into evidence, we conclude that the evidence presented, viewed in a light most favorable to the prosecution, is sufficient to support the convictions of armed robbery. This assignment is without merit.

Assignment No. 2 (verbatim): The trial court improperly found that the Defendant was a Third Felony Offender.

Defendant claims that the habitual offender adjudication was improper because the State “failed to prove when Appellant [sic ] was released from State [sic ] custody after his last prior conviction.” The State argues that Defendant’s “criminal history technically shows that he is a fourth felony offender,” listing the following convictions in support of that assertion: a guilty plea to the charge of simple burglary on October 13, |61983; another conviction for simple burglary on March 18, 1986; and the commission of the two instant offenses on April 11, 2004. The State concludes that it proved, beyond a reasonable doubt, every element of the habitual offender bill.

Louisiana Revised Statute 15:529.1(C) provides:

The current offense shall not be counted as, respectively, a second, third, fourth, or higher offense if more than ten years have elapsed between the date of the commission of the current offense or offenses and the expiration of the maximum sentence or sentences of the previous conviction or convictions, or adjudication or adjudications of delinquency, or between the expiration of the maximum sentence or sentences of each preceding conviction or convictions or adjudication or adjudications of delinquency alleged in the multiple offender bill and the date of the commission of the following offense or offenses. In computing the intervals of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods between the expiration of the maximum sentence or sentences and the next succeeding offense or offenses.

Again, Defendant argues that the State failed to show that the prior convictions fell within the period mandated by La. R.S. 15:529.1(C), because the State failed to offer proof of Defendant’s actual discharge date. We agree.

In State v. Boykin, 29,141 (La.App. 2d Cir.1/31/97), 688 So.2d 1250, reh’g denied, appeal after new sentencing hearing, 34,133 (La.App. 2d Cir.12/6/00), 774 So.2d 1074, appeal after new sentencing hearing, 36,989 (La.App. 2d Cir.3/5/03), 840 So.2d 64, writ denied, 03-1158 (La.11/14/03), 858 So.2d 416, this court observed:

This “cleansing period” begins to run from the date that a defendant is actually discharged from state custody and supervision. State v. Anderson, 349 So.2d 311 (La.1977); State v. Metoyer, 612 So.2d 7755 (La.App. 5th Cir.1992). The state has the burden of proving the date of defendant’s discharge from state supervision. See State v. Lorio, 94-2591 (La.App. 4th Cir.09/28/95), 662 So.2d 128. Where a defendant has been adjudicated a habitual offender, the state’s failure to prove the defendant’s date of discharge and thus prove that the “cleansing period” has not expired is error patent on the face of the record. See State v. Bullock, 311 So.2d 242 (La.1975); see also State v. Baker, 452 So.2d 737 (La.App. 1st Cir.1984).

In the case sub judice, we note that Defendant was incarcerated on the second simple burglary conviction on November 15, 1985. We find no evidence in the record showing the date of Defendant’s release from state supervision for this simple burglary conviction. Likewise, the record does not contain the dates, if any, of an interruption or suspension of the 10-year period (subsequent to November 15, 1985) due to Defendant’s incarceration for any other matter, as provided in 15:529(C). No such evidence was introduced at the habitual offender hearing. The only reference to Defendant’s release date is contained in the State’s brief on appeal, but we find nothing in the record to indicate that proof of this date (or any other dates of subsequent incarceration) was before the trial judge when Defendant was adjudicated a multiple offender. While the current offenses may very well fall within the statutory period, it is incumbent on the State to introduce evidence on remand supporting that conclusion. Without proof of this/these dates, it is impossible to calculate whether or not the current offenses fall within the statutory period. For this reason, the habitual offender adjudication and sentence are vacated and the case remanded for further proceedings. In light of this finding, we pretermit any discussion of Defendant’s assignment of error urging that his sentence is excessive.

\ ^CONCLUSION

For the reasons set forth above, Defendant’s conviction is AFFIRMED. Defendant’s habitual offender adjudication and sentence are VACATED and the matter is REMANDED for further proceedings.

CONVICTION AFFIRMED; HABITUAL OFFENDER ADJUDICATION VACATED AND REMANDED FOR FURTHER PROCEEDINGS.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee v. Clement Wayne JONES, Appellant.
    No. 41,242-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Peggy J. Sullivan, Monroe, Louisiana Appellate Project, Brian C. McRae, for Appellant.
    William R. Jones, Julie C. Jones, Assistant District Attorney, District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   GASKINS, J.

_|jThe defendant, Clement Wayne Jones, was convicted of driving while intoxicated, fourth offense. He was sentenced to serve ten years at hard labor, five of those years to be suspended, and was ordered to pay a fine of $5,000.00. The defendant now appeals, arguing that the sentence violates La. R.S. 14:98 because the defendant did not have the opportunity to avail himself of any substance abuse treatment following his conviction for a prior DWI offense. For the following reasons, we affirm the conviction and amend the sentence to comply with La. R.S. 14:98(E)(4)(b).

FACTS

Around 8:00 p.m. on March 30, 2004, Rodger Cason of the Louisiana State Police observed the defendant speeding while driving north on Louisiana Highway 1 in Red River Parish. Cason attempted to stop the defendant by activating his blue emergency lights. The defendant continued to drive until he turned into a private driveway. Cason followed the defendant down the driveway and behind a mobile home. After the defendant parked the car, Cason ordered the defendant to step out of the vehicle and walk toward him. When the defendant exited the vehicle, Cason immediately detected a strong odor of alcohol on his breath. The defendant performed poorly on the horizontal gaze nystagmus test, walk-and-turn test and one-leg stand test.

After determining that the defendant was intoxicated, Cason arrested the defendant and took him to the Red River Sheriffs Office. The defendant voluntarily submitted to a Breathalyzer test. The results showed that the defendant had a blood alcohol content of .220.

|2The defendant was charged with driving while intoxicated (DWI), fourth offense, as well as possession of a firearm by a convicted felon. The defendant was tried before a jury of six persons, solely on the DWI charge. On April 27, 2005, the jury found the defendant guilty as charged of DWI, fourth offense.

The trial court sentenced the defendant to serve ten years at hard labor; five years were suspended, with the defendant to be on probation for five years. The defendant was also ordered to pay a fine of $5,000.00. The defendant entered a contemporaneous objection to his sentence, claiming that he had not received substance abuse treatment in connection with his prior DWI conviction. The trial court overruled the objection and the defendant appealed his sentence.

DISCUSSION

The defendant argues that, because he did not have the opportunity to avail himself of substance abuse treatment after his prior conviction for DWI, the sentence on the present offense, ten years, with five of those years to be suspended, violated the provisions of La. R.S. 14:98 which provides that a defendant be sentenced to substance abuse treatment and home incarceration. The defendant further argues that, because he had not completed a substance abuse treatment program, all but 60 days of his sentence should have been suspended. He contends that it is “clearly the intent of this statute to make sure that such treatment is favored over incarceration.” Finally, the defendant argues that, at the very least, this |3matter should be remanded to the trial court to determine whether the defendant was ordered to treatment and, if he did not have the opportunity to sign up for treatment, whether that failure was due to the defendant’s lack of resources. These arguments are without merit.

At the time the offense was committed, La. R.S. 14:98 provided, in pertinent part, that:

E. (l)(a) Except as otherwise provided in Subparagraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Sixty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The remainder of the sentence of imprisonment shall be suspended and the offender shall be required to undergo an evaluation to determine the nature and extent of the offender’s substance abuse disorder.
(4)(a) If the offender has previously been required to participate in substance abuse treatment and home incarceration pursuant to Subsection D of this Section, the offender shall not be sentenced to substance abuse treatment and home incarceration for a fourth or subsequent offense, but shall be imprisoned at hard labor for not less than ten nor more than thirty years, and at least three years of the sentence shall be imposed without benefit of suspension of sentence, probation, or parole.
(b) If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, no part of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

I/Fhe record in this matter shows that the defendant was convicted of DWI, first offense, in January 1994. He pled guilty to DWI, second offense, on August 26, 1998. In April 2000, the defendant was arrested for DWI, third offense, and pled guilty in October 2000 to the reduced charge of DWI, second offense. In July 2002, the defendant was arrested for DWI, fourth offense. He pled guilty to that charge on June 23, 2003. On January 30, 2004, he was sentenced to serve ten years at hard labor with all but 60 days of the sentence to be suspended. The court ordered that the defendant serve 60 days without benefit of probation, parole, or suspension of sentence. The defendant was ordered to undergo evaluation for in-house substance abuse treatment. After treatment, the defendant was ordered to serve one year home incarceration. The defendant was also given five years supervised probation. The record is clear that the defendant had previously been sentenced to substance abuse treatment.

The defendant was sentenced on the prior DWI on January 30, 2004, and was arrested for the instant DWI on March 30, 2004. The defendant points to the short amount of time between the prior sentencing and the arrest of the instant charge as being the reason the defendant did not undergo substance abuse treatment. We find that it is the defendant’s responsibility to avail himself of the imposed substance abuse treatment, and his committing another DWI does not excuse this failure. Further, we note that the defendant had one year and three months between the sentencing for the prior DWI and the sentencing for the instant conviction, and still failed to undergo the substance abuse treatment. Without more, the | fidefendant’s objection to the sentence on these grounds is without support and the trial court correctly denied it.

On our error patent review, we note that the sentence imposed by the court is illegally lenient. Under the facts presented here, the applicable sentencing provision is La. R.S. 14:98(E)(4)(b). The statute provides that when the defendant previously received a suspended sentence for DWI, fourth offense, the trial court cannot order that any portion of the present sentence be served with benefit of parole, probation, or suspension of sentence. Not only had this defendant been previously sentenced to substance abuse treatment, but he also had previously been convicted of a fourth offense, for which he had received the benefit of suspension of sentence and probation. In failing to follow La. R.S. 14:98(E)(4)(b), the trial court imposed an illegally lenient sentence. Under the circumstances of this case, the minimum sentence that may be imposed by the trial court is ten years at hard labor without benefit of parole, probation, or suspension of sentence and a fine of $5,000.00, to run consecutively with the balance of any other sentence imposed for a prior conviction for any offense. See and compare State v. Volgamore, 38,054 (La.App. 2d Cir.1/28/04), 865 So.2d 237, writ denied, 2004-1255 (La.4/22/05), 899 So.2d 568; State v. McDonald, 33,013 (La.App. 2d Cir.3/1/00), 754 So.2d 382.

We affirm the ten-year sentence, and amend to delete the suspended five years. The ten-year hard labor sentence is to be served without probation, parole, or suspension of sentence, and to be served consecutively with all prior offenses.

[(¡CONCLUSION

For the reasons stated above, we affirm the conviction of the defendant, Clement Wayne Jones, for DWI, fourth offense. We affirm the defendant’s sentence of ten years hard labor and a $5,000.00 fine, and amend to delete the suspension of five years. The ten years are to be served without benefit of probation, parole, or suspension of sentence and this sentence is to be served consecutively with all prior offenses.

AMENDED AND AFFIRMED.

      . The record does not indicate a disposition of the charge of possession of a firearm by a convicted felon.

      . This statute was amended by Acts 2004, No. 762, § 1, which became effective after the commission of the present offense. The amendment has no effect on the present case and would not change the outcome.

      . We note that the trial judge suspended the five years, mentioning the defendant's youth and no treatment as mitigating factors. While in some circumstances the mandatory minimum may be excessive, in this case, where the defendant has five DWI convictions and one for distribution of cocaine, it is not. The defendant was born in 1975.