author: PICKETT, Judge. COOKS, J., EZELL, J.

text:
    Charles Ray TAYLOR, Jr., et al. v. Richard J. CLEMENT, M.D., LPCF.
    No. 04-1069.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Oliver Jackson Schrumpf, Schrumpf & Schrumpf, Sulphur, LA, for Plaintiffs/Appellants, Charles Ray Taylor, Jr. & Sharon Taylor.
    Michael Keith Prudhomme, Lundy & Davis, Lake Charles, LA, for Interve-nor/Appellee, Louisiana Patient’s Compensation Fund.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   PICKETT, Judge.

h HISTORY

This case was previously before the court. Taylor v. Clement, 04-1069 (La.App. 3 Cir. 3/9/05), 897 So.2d 909. At that time we applied to the Supreme Court of Louisiana for instructions on the following question of law arising in the proceeding:

Considering the devaluation of the dollar in the thirty years since the passage of the medical malpractice act is such that the $500,000.00 limit imposed in 1975 is now, according to competent evidence, worth only $160,000.00, and considering that Section 22 of Article I of the Louisiana Constitution of 1974 provides Louisiana citizens with an “adequate remedy” under our law, is the limitation on recovery for general damages of $500,000.00 imposed by the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41, et seq., still considered constitutional?

Id. at 911.

The Louisiana Supreme Court denied our request for certification. Taylor v. Clement, 05-1057 (La.6/17/05), 904 So.2d 708, and remanded the case so that we could consider the plaintiffs’ appeal.

APPEAL

The plaintiffs, Charles and Sharon Taylor, appeal a judgment of the trial court denying their motion for summary judgment seeking to have the limitations on recovery for damages imposed by the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41, et seq., declared unconstitutional and granting the motion for summary judgment filed by the defendant, the Louisiana Patient’s Compensation Fund, upholding the constitutionality of the limitation on recovery or “cap” provisions of the act.

| aFACTS

The procedural history of the case was set out by the trial judge in his written reasons for judgment as follows:

On June 22, 2001 following a trial on the merits there was a Judgment in favor of MR. and MRS. TAYLOR awarding damages in excess of the statutory limits on liability found in L.R.S. 40:1299.42. On April 23, 2003 the TAY-LORS and the LOUISIANA PATIENT COMPENSATION FUND (THE FUND) entered into a partial discharge in satisfaction of said Judgment with the TAYLORS reserving their rights to challenge the constitutionality of The Act. Throughout these proceedings, the TAYLORS have reserved their right to contest the constitutionally of the limits of liability set forth in The Act or applicability to these facts.
Those issues were fixed for trial in this Court on November 24, 2003. THE FUND intervened in this action September 23, 2003. On August 21, 2003 the TAYLORS filed a Second Supplemental and Amending Petition amending the previously filed petition to more specifically set out the constitutional grounds on which “the cap” on recovery was challenged. Subsequently, a Third Supplemental and Amending Petition was filed on October 6, 2003 to spell out with more specificity the constitutional grounds on which “the cap” on recovery was challenged.

The limitation of liability or “cap” is found in La.R.S. 40:1299.42(13), which states:

(1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.
(2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.
(3)(a) Any amount due from a judgment or settlement or from a final award in an arbitration proceeding which is in excess of the total liability of all liable health care providers, as provided in Paragraph (2) of this Subsection, shall be paid from the patient’s compensation fund pursuant to the provisions of R.S. 40:1299.44(C).
|s(b) The total amounts paid in accordance with Paragraphs (2) and (3) of this Subsection shall not exceed the limitation as provided in Paragraph (1) of this Subsection.

After considering the issues raised by the plaintiffs, the counter-arguments of the defendants, and the law and jurisprudence, the trial judge upheld the constitutionality of “the cap” and issued judgment accordingly. This appeal followed.

LAW AND DISCUSSION

Although couched as several different assignments of error, the sole issue raised in this appeal is the same issue raised in Arrington v. ER Physicians Group, APMC, 04-1235 (La.App. 3 Cir.9/27/06), 940 So.2d 777, the constitutionality of the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq.

Accordingly, for the reasons set forth in Arrington v. ER Physicians Group, APMC, 04-1235 (La.App. 3 Cir.9/27/06), 940 So.2d 777, the judgment of the trial court is reversed and set aside; judgment is entered in favor of the plaintiffs, Charles and Sharon Taylor, granting their motion for summary judgment and finding the $500,000.00 cap on medical malpractice damages unconstitutional as failing to provide the plaintiffs an “adequate remedy” as guaranteed under the provisions of La. Const, art. 1, § 22. The case is remanded to the trial court for the consideration of what constitutes adequate damages in this case. All costs of this appeal are assessed against the defendant, the Louisiana Patient’s Compensation Fund.

REVERSED AND REMANDED.

COOKS, Judge, dissents with written reasons.

DECUIR, Judge, dissents for reasons assigned by COOKS, Judge.

EZELL, Judge, concurs with written reasons.

GENOVESE, Judge, concurs in the result.

COOKS, J.,

dissents.

hi respectfully dissent for the reasons assigned in 04-1235; Arrington v. ER Physicians Group, APMC, et al.

EZELL, J.

Concurs.

hi concur with Judge Pickett’s opinion but would find that the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41, et seq., is unconstitutional on other grounds as well. Equal Protection is not afforded those who have injuries that exceed the damages cap. The statute creates classes of victims that are not equally compensated for their damages. Those who have damages that fall within the cap are compensated completely. Those who have damages that exceed the cap are not completely compensated, thus creating one of many sub-classes of claimants.

The purpose stated by the legislature for the enactment of this statute was to reduce or hold the line on increases in insurance premiums and rising health care cost in our state. If this was the goal, the legislature has failed to achieve this goal. The best way to deal with the problem of increasing insurance premiums is to correct the acts that cause the negligent acts. We should not shield negligent health care providers from their negligent acts. Capping damages diminishes the deterrent effect of tort law.

In reviewing the record, the statute being attacked as unconstitutional I can find no rational basis for the enactment of this statute other than the protection of a very limited segment of society at the expense of the most grievously injured claimant. The most affected group of claimants are young people. This is due to the fact that they will endure these injuries for a substantial portion of their lives. We recognize the fact that the legislature can regulate our economy, but it is not right to shift the economic burden of medical malpractice from insurance companies and negligent health care providers to a small group of injured patients.

There is no recovery set forth in the statute for provable economic damages which are allowed in every tort action other than one filed under this statute. Here again a young claimant is asked to carry the load for the insurance and negligent health care provider, in that, they will not receive what they are due if they have provable economic damages that exceed the cap. This case is an example of this injustice.

There is a false assertion that the tort system is “broken” or in need of repair. If we assume that this assertion is right, the cap imposed to fix the system is at the expense of those most seriously injured. This is neither fair nor equitable.

|¡J can find no rational relationship existing between the classification of victims in the $500,000 cap on non-economic damages and the legislative objective of compensating victims of medical malpractice fairly. Another objective of the legislature, as we previously stated, was to lower malpractice insurance premiums. The facts as presented in this case, clearly show that the cap adopted by the legislature is arbitrary and unreasonable in that it has no relationship to the lowering of medial malpractice insurance premiums. If there was a crisis when the legislation was passed, which has not been shown by the State, that alone would not render the law valid forever.

I agree with those courts that have found that there is little, if any, correlation between caps on non-economic damages and the redirecting of medical malpractice premiums or overall health care costs. The evidence of studies done in reference to the malpractice caps, which are part of this record, indicate that caps on non-economical damages do not affect doctors’ migration. The non-partisan United States General Accounting Office concluded that doctors do not appear to leave or enter states to practice medicine based on caps on non-economic damages in medical malpractice actions.

Studies reviewing the facts of practicing defensive medicine simply show that it is very hard to measure that cost and even harder to measure when trying to determine the effect it would have on insurance premiums. I recognize that it is well-settled law that courts should presuppose that the legislative judgment is sound and try to support the legislative act. This act is so flawed with speculation and void of any quid pro quo that I have difficulty finding a connection between the means and ends.

I cannot find any objective basis for the enactment of this legislation.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Patrick Brian CLARK.
    No. 2006-508.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Harold A. Van Dyke, III, Assistant District Attorney, Alexandria, Louisiana, for PlaintiffAppellee, State of Louisiana.
    James E. Beal, Jonesboro, Louisiana, for Defendant/Appellant, Patrick Brian Clark.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hOn October 1, 2004, the Defendant, Patrick Brian Clark, was charged by bill of information with one count of attempted second degree murder, a violation of La. R.S. 14:30.1 and La.R.S. 14:27. On October 18, 2005, the Defendant waived his right to a jury trial, and on October 19, 2005, a bench trial was held whereupon the trial court found the Defendant guilty of the offense as charged.

The Defendant then filed a motion for new trial; that motion was denied by the trial court on October 27, 2005. After observing a twenty-four-hour delay, the trial court sentenced the Defendant to imprisonment for a term of twenty-five years at hard labor, without the benefit of probation, parole, or suspension of sentence. The Defendant orally moved for reconsideration of sentence, which was denied by the trial .court.

The Defendant has appealed, asserting that his sentence is excessive. For the following reasons, we affirm.

FACTS

On June 9, 2004, Tandra Clark went to the Wal-Mart store in Alexandria, Louisiana, with her daughter, Destiny Green, Victoria Briggs and David Briggs, and their daughter India Smith. After leaving Wal-Mart, Victoria Briggs noticed their car being followed by the Defendant in his car. The group then drove to Lesser Grocery, and the Defendant parked his car immediately adjacent to theirs. The Defendant spoke to Tandra Clark, his former wife, and then exited his car. Ms. Clark showed the Defendant a restraining order and requested that he stay away. Ms. Clark then attempted to go into the store, but before she could do so, the Defendant struck her in the back of the head. He verbally threatened Ms. Clark and then returned to his car. The Defendant then exited his car, carrying a “crowbar tool,” which he then used | Pto strike Ms. Clark. The Defendant then struck the victim twice with the tool and fled the scene.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there is one error patent.

The trial court improperly informed the Defendant “that any application for post-conviction relief must be filed within two years before this conviction — before this sentence becomes final.” According to La. Code Crim.P. art. 930.8, however, an application for post-conviction relief must be filed within two years after the judgment of conviction and sentence has become final. Therefore, we remand this matter to the trial court with instructions to inform the Defendant of the correct provisions of article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof that the Defendant received the notice in the record of the proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

ANALYSIS

In his only assignment of error, the Defendant asserts that the twenty-five year sentence imposed by the trial court is excessive and that it is not supported by the evidence. The Defendant asserts that the sentence was excessive because the evidence, while not sufficient for acquittal of the attempted second degree murder charge, showed that he voluntarily left the scene, and that he did not intend to kill the victim. Further, the Defendant claims that the trial court failed to follow the requirements of La.Code Crim.P. art. 894.1, and that the trial record does not clearly | ¡¡reflect whether he has a prior felony conviction nor does it show his age at the time of the offense. Therefore, the Defendant concludes that the sentence is excessive, that his sentence should be vacated, and that the trial court should be ordered to impose a sentence particularized to the offender and the offense.

Initially, the record indicates that the Defendant orally moved for reconsideration of sentence at the sentencing hearing on October 28, 2005:

BY MR. LAMPERT:
Your Honor, on behalf of the defendant I would now like to move for a reconsider — an oral motion for reconsideration of sentence based on our allegation that this sentence is excessive and other — and what I think will become broadly known as the Dorthey Consideration is that this would not serve a penal interest.

When a defendant fails to assert specific grounds for exeessiveness, he is then limited on appeal to a review of a bare claim of excessiveness. State v. Mims, 619 So.2d 1059 (La.1993).

This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, unit denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

|4In order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

The Defendant was convicted of attempted second degree murder, a violation of La.R.S. 14:30.1 and La.R.S. 14:27. A person convicted of attempted second degree murder shall be imprisoned for “not less than ten, nor more than fifty years without benefit of parole, probation or suspension of sentence.” La.R.S. 14:27. When sentencing the Defendant, the trial court stated:

The Court has examined your record and find [sic] that this is not the first crime of violence of which you’ve been convicted. That you have displayed violence toward your fellow man on more than one occasion before and not simply fights, I’m talking about putting people in jeopardy of losing their lives, taking somebody’s life. In this particular case it was testified by several witnesses that you said, I’m going to kill you. You knocked this lady down, you got a tire tool and you hit her in the head twice. Unless you get some correctional treatment, in which you need [sic], I’m afraid you’re going to end up taking somebody’s life. I don’t know if it’s a violent temper you have or what but you — you need — you are in the need of correctional treatment. If there is any suspended sentence of probation I would be fearful for your wife’s life. At any — and I’m going to impose a sentence and determine that any lesser sentence would not address the seriousness of the crime.
I have considered all the — the guidelines under Article 894.1 of the Code of Criminal Procedure and before I impose the sentence I want you to understand that any application for post-conviction relief must be |sfiled within two years before this conviction — before this sentence becomes final. I now sentence you to the custody of the Department of Corrections of the State of Louisiana, to serve a period of twenty-five years without the benefit of parole. That’s all.

The Defendant’s sentence is in the middle of the range between the minimum ten years and the maximum fifty years for the convicted offense. A pertinent review of sentencings for attempted second degree murder is set forth in State v. Napoleon, 01-1222, pp. 6-7 (La.App. 5 Cir. 2/26/02), 811 So.2d 980, 983-84, as follows:

A review of the jurisprudence indicates that similar sentences have been upheld for defendants without prior felony records. In State v. Ethridge, 96-1050 (La.App. 3 Cir. 2/5/97), 688 So.2d 1274, 1276, the Third Circuit upheld defendant’s 45 year sentence for attempted second degree murder despite the fact defendant had no prior criminal record. The defendant had fired six shots into the victim’s residence through a bedroom window severely wounding the victim.
In State v. Owens, 606 So.2d 876 (La.App. 2 Cir.1992), the Second Circuit affirmed defendant’s 30 year sentence for attempted second degree murder despite defendant’s claim the sentence was excessive based on his youthful age of 25 years old and the fact he had no prior felony convictions. Defendant had fired several shots at the victim in a crowded barroom.
In State v. Camese, 00-1943 (La.App. 4 Cir. 7/11/01), 791 So.2d 173, the Fourth Circuit affirmed defendant’s 50-year sentence for attempted second degree murder despite the fact defendant had no prior criminal record. Defendant approached the victim at the security gate of the victim’s apartment, pointed a gun to his head, and demanded the victim’s car. The victim gave defendant the car at which time defendant shot him in the head.
In the present case, defendant tricked his victims by asking for a ride home. He pulled a gun on the high-school aged victims who were merely being nice by giving the perpetrators a ride home. Defendant forced Shane McCloud at gunpoint to disconnect the speakers in the trunk of the car and hit Shane McCloud several times with the gun, demonstrating deliberate cruelty. Shockingly, defendant then shot the victim after he handed over the very item the perpetrators requested. Despite defendant’s claim the shooting was an accident, the record shows shots were fired at the prior armed robbery and there was discussion between the perpetrators about shooting someone. Based on these facts, we find the 25-year sentence imposed is not grossly disproportionate to the severity of the offense nor does it shock the conscience.

1 .DECREE

In view of the jurisprudence, and the detailed reasons given by the lower court, we find that the Defendant’s sentence is not excessive. Therefore, we affirm the Defendant’s sentence. However, this matter is remanded to the trial court with instructions that the trial court inform the Defendant of the correct provisions of La. Code Crim.P. art. 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof in the record of the proceedings that the Defendant received such notice.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.


author: EZELL, Judge.

text:
    David MULLINS v. CONCRETE & STEEL ERECTORS.
    No. WCA 06-510.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Linda Lea Smith Blackman, Attorney at Law, Bossier City, LA, for Defendant/Appellant, Concrete & Steel Erectors.
    George Arthur Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Plaintiff/Appellee, David Mullins.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

| ¶ Concrete & Steel Erectors, Inc. appeals a workers’ compensation ruling that David Mullins was entitled to temporary total disability benefits. Mullins answered the appeal asking for an additional penalty for the discontinuance of payment for medical treatment and also asking for an increase in attorney fees.

FACTS

David Mullins was employed with Concrete & Steel Erectors, Inc. On May 8, 2003, Mr. Mullins was on a job in Gulfport, Mississippi when an accident occurred. At the time of the accident, he was setting precast concrete walls, using two-by-four boards to keep the walls from breaking out. While performing this task, one of the two-by-four boards slipped out and hit Mr. Mullins on the head, knocking off his hard hat, and then hitting him on the right shoulder. The accident report indicates that the board fell about twelve to fifteen feet while Mr. Mullins alleges twenty-five to thirty feet.

The accident occurred on a Thursday, so the entire work crew returned to Baton Rouge that evening for the weekend. After Mr. Mullins returned home to Alexandria, he went to Rapides Regional Medical Center on May 11, 2003, complaining that he had been having a migraine headache since the accident. He also complained of weakness and tingling in his right arm. He was diagnosed with acute myofascial cervical strain.

On May 14, 2003, Mr. Mullins went to the Edgewood Walk-In Clinic, still complaining of migraine headaches and right shoulder pain radiating into the arm. He returned to the clinic on several more occasions. An MRI of the cervical spine revealed some degenerative disc changes, most prominently at the C3-4 and C4-5 level, but not to a magnitude to cause cord or foraminal area compression. On June |?9, 2003, Dr. Jorge Tapia with the clinic reported that Mr. Mullins was not able to work at this time.

On June 27, 2003, Mr. Mullins started physical therapy with Louisiana Physical Therapy Centers at the request of Dr. Robert Rush who evaluated Mr. Mullins on June 25, 2003. At that time, Dr. Rush issued a one-week work excuse. Dr. Rush saw Mr. Mullins on several more occasions. On the September 10, 2003 visit, Dr. Rush noted that Mr. Mullins was still complaining of severe neck, right arm, and right shoulder pain. He recommended a neurological consultation and opined that Mr. Mullins was at risk for developing chronic pain syndrome with depression.

Mr. Mullins went to Christus St. Francis Cabrini Hospital on January 22, 2004, indicating that pain in his right neck, shoulder, and arm from the accident had decreased but that it resumed after he turned his head abruptly two days before. He was prescribed some medication and discharged.

Dr. Rush last saw Mr. Mullins on February 3, 2004; he was still complaining of pain in the right shoulder. On February 27, 2004, Dr. Rush referred Mr. Mullins, who was indigent, to the LSU Health Sciences Center in Shreveport because he received notice that there was no further authorization for Mr. Mullins’ treatment.

Mr. Mullins began treatment at the LSU hospital in Shreveport in May 2004. While treating at LSU, Mr. Mullins had an EMG which indicated right carpal tunnel syndrome. During his treatment, Mr. Mullins’ complaints remained the same; headaches, neck and shoulder pain, and right hand numbness and tingling. The doctor in the orthopedics section opined that nothing could be done for the neck and shoulder pain since it was muscular in origin. He did encourage Mr. Mullins to pursue massage and sent him to physical therapy for a home program for neck and right shoulder range of motion and strengthening. He also had nothing to offer for |3the headaches. Further evaluation was recommended for the carpal tunnel syndrome. Concrete & Steel Erectors denied Mr. Mullins suffered a compensable injury and only paid $254.00 for services rendered by Dr. Rush. Mr. Mullins filed a disputed claim for compensation on June 16, 2003. A hearing on the matter was held on June 28, 2005. A judgment was signed on February 9, 2006. The workers’ compensation judge (WCJ) determined that Mr. Mullins did suffer a work-related injury and awarded temporary total disability benefits from the date of injury and continuing in accordance with La.R.S. 23:1221(1). The WCJ also ordered reimbursement of all medical expenses for treatment of the injuries and continuing medical treatment. A penalty in the amount of $4,000.00 was awarded for nonpayment of indemnity benefits and nonpayment of medical bills at Rapides General Hospital and the Edgewood Walk-In Clinic. Mr. Mullins’ claim for penalties due to discontinuance of medical payments was denied. Attorney fees in the amount of $7,500.00 were also awarded.

Concrete & Steel Erectors appealed the judgment. It claims that the WCJ erred in finding that Mr. Mullins was injured and entitled to temporary total disability benefits and reimbursement of medical expenses as a result of the claim. It further argues that the WCJ erred in not finding Mr. Mullins violated the provisions of La. R.S. 23:1208 and La.R.S. 23:1208.1, thereby forfeiting any right to benefits. It also complains of the award of penalties and attorney fees.

Mr. Mullins answered the appeal asking for an increase in attorney fees for work necessitated by the appeal. He also asks for an award of penalties and attorney fees due to the discontinuance of medical benefits.

| .INJURY

Concrete & Steel Erectors argues that the WCJ was erroneous in concluding that Mr. Mullins established by a preponderance of the evidence that he is disabled and unable to earn his pre-accident wages. It argues that the medical evidence fails to substantiate objective signs of injury and fails to provide a relationship between the ongoing complaints of Mr. Mullins and the original accident.

Findings of fact made by a WCJ are subject to the manifest error/clearly wrong standard of review. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706. The record must be reviewed in its entirety to determine if there is manifest error. Id.

It was stipulated that Mr. Mullins did suffer an accident. The accident was witnessed by Lionel Redman. At trial Mr. Redman testified that Mr. Mullins held his shoulder for a while and then went back to work. He also testified that Mr. Mullins was able to drive home.

As the medical evidence established, Mr. Mullins continued to be bothered with a headache and pain in his right neck, shoulder, and arm, so he sought medical treatment when he got home. His complaints have been consistent with each medical provider he has seen. No medical evidence disputes the fact that Mr. Mullins suffers from an injury.

Concrete & Steel Erectors questions the validity of Mr. Mullins’ complaints to the medical providers. It directs the court’s attention to several instances when Mr. Mullins was able to physically do more than he testified he could do. Concrete & Steel Erectors introduced videotape evidence of Mr. Mullins using his right hand to flag for Russell Morace Mobile Home Movers. It also introduced the testimony of Joyce Spears who testified that Mr. Mullins was able to lift a tool chest by himself [ Babout two weeks after the accident. Mr. Mullins also admitted that he was able to clean out a sewer line and hand tools to a friend while at work.

None of these incidents show that Mr. Mullins was able to use his right arm consistently following the accident. As explained by Mr. Mullins, the pain is worse on some days. He has never said he has no use of his right arm. The use is just limited. It is reasonable to assume that on occasion he will have less pain and have better use of his arm. We cannot say that the Wed’s decision was manifestly erroneous.

FORFEITURE

Concrete & Steel Erectors next claims the WCJ erred in denying its defenses that Mr. Mullins violated La.R.S. 23:1208 and La.R.S. 23:1208.1. It argues that he presented false and misleading statements as to his physical condition, ability to perform work and activities, and the nature of his preexisting degenerative conditions.

[I]n order for an employer to prove forfeiture pursuant to La.R.S. 23:1208, it must prove that a false representation was willfully made by the employee for the purpose of obtaining compensation benefits. Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7. An inadvertent or inconsequential false statement will not result in the forfeiture of benefits. Jim Walter Homes, Inc. v. Prine, 01-116 (La.App. 1 Cir. 2/15/02), 808 So.2d 818. Moreover, a forfeiture will also occur if an employee fails to truthfully answer an employer’s inquiry as to any previous injuries, disabilities, or other medical conditions if the “failure to answer directly relates to the medical condition for which a claim for benefits is made.” La.R.S. 23:1208.1.

Bigge v. The Lemoine Co., 04-1191, p. 4 (La.App. 3 Cir. 3/2/05), 896 So.2d 269, 272.

La.R.S. 23:1208.1

Concrete & Steel Erectors complains that Mr. Mullins made false statements concerning prior injuries in his employment paperwork. In making his analysis on this issue, the WCJ cited the supreme court decision of Nabors Drilling USA v. Davis, 03-136 (La.10/21/03), 857 So.2d 407, which observed that forfeiture is a harsh | ¿remedy, and therefore, forfeiture statutes must be strictly construed. With regard to La.R.S. 23:1208.1, the supreme court noted that the employer must prove three elements: “(1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute.” Nabors Drilling USA 857 So.2d at 414. The absence of any one of these is fatal to the employer’s avoidance of liability under the statute. Id.

The WCJ found that there was no problem with the notice requirement. Concrete & Steel Erectors argues that Mr. Mullins was untruthful because it discovered that he had filed two prior workers’ compensation claims. In determining whether there was an untruthful statement, the WCJ summarized the testimony regarding Mr. Mullins’ ability to read and write as follows:

And interesting we spent a lot of time at this trial trying to prove that Mr. Mullins was capable of reading, writing and appropriate level of comprehension for an adult. Along those lines, the employer introduced “Exhibit D-3,” a report from Richard Galloway, a certified rehabilitation counselor, dated April 27th of 1987, and Mr. Galloway performed some functional testing of Mr. Mullins on that occasion. He performed a Simpson Intelligence Test which was a verbal test. He noted there that he had an IQ of 64 which placed him in the first percentile of the general population. There was a Wide Range Achievement Test performed. He read below the third grade level. He spelled below the third grade level. And it appears to me that, perhaps, his arithmetic may have been the third grade equivalent. And Mr. Galloway’s conclusion was that Mr. Mullins was functionally illiterate, and he even noted in his report that when Mr. Mullins was there that Mr. Mullins had no idea as to why he had been asked to see Mr. Galloway and he said he was there after Mr. Galloway exchanged a lengthy discussion explaining the reason why Mr. Mullins was there for a vocational evaluation. Now, we had a lot of testimony and a lot of exhibits shown to Mr. Mullins at trial and essentially all Mr. Mullins did was identify his signature to a lot of tests, job applications, those types of things. And then we came to the testimony of Mr. Burl Duncan who had been a former supervisor of Mr. Mullins when he worked at Qualified Contractors, Incorporated. Apparently, the employer had discovered that Mr. Mullins had worked there previously and through the general knowledge that to do the type of turbine work that Mr. Mullins. did there at various plants, he had to be aware of safety procedures and things of that nature. So he introduced a lot of exhibits of safety testing that bore Mr. Mullins [sic] signature and he — and he identified his signature. However, when Mr. Burl pDuncan testified and he was shown these same exhibits which bore Mr. Burl Duncan’s name, Mr. Burl Duncan said those were — that was his name but that was not his signature. He had said his foreman usually signed his name and to his knowledge, these tests could have been performed orally.
We came to the testimony of Ms. Joyce Spears who at that time was the girlfriend of Mr. Keith Redman who was Mr. Mullins’ supervisor on the job in Gulfport, Mississippi, and Ms. Spears was not an employee of Concrete & Steel Erectors. And when she testified after a lengthy day of document review by Mr. Mullins, she testified that Mr. Mullins did not fill out the employment papers for Concrete & Steel Erectors. That she filled those out and he merely signed his name. So I am not convinced at all that it was ever established to any degree and satisfaction that Mr. Mullins could read or he could write. Mr. Mullins testified that before he signed this paperwork he had already been hired by Concrete Steel & Erectors. And we had a comptroller testify, a Mr. Rick [Richard] Edmonds, who in his testimony said that there were occasions when they had to hire people rapidly and they were done before all the paperwork was necessary.

The WCJ then went on to say that the employment paperwork utilized by Concrete Steel & Erectors was very loose. Apparently, the WCJ found that there was no proof that Mr. Mullins made an untruthful statement since other people were involved in the completion of the paperwork and apparently Mr. Mullins had profound intellectual problems.

The court further discussed the prejudice requirement, examining the effect of Mr. Mullins’ prior injuries on his present injury. At trial Mr. Mullins admitted that he had injured his right shoulder when working for a previous employer. However, he explained that the condition had resolved prior to this accident. Mr. Mullins also hurt his back while working with Mr. Duncan. However, Mr. Duncan testified that Mr. Mullins did not work for a period of time but did come back to work. These accidents were also several years before the present accident.

We agree with the WCJ that there is no evidence that these past injuries made it more likely that Mr. Mullins would be injured when the two-by-four fell on him. We find no manifest error in the WCJ’s decision that there was noviolation of La. R.S. 1,28:1208.1.

La.R.S. 23:1208

Regarding the La.R.S. 23:1208 claim, the WCJ reviewed the evidence of Concrete & Steel Erectors that Mr. Mullins was able to perform physically better than he testified to, the videotape of Mr. Mullins flagging and driving an escort truck for a mobile home moving company, and the fact that Mr. Mullins sold scrap material.

As mentioned by the WCJ, the evidence established that, from the very beginning of this case, Summit Consulting, who managed the case, sought to defend this claim. Evidence revealed that $50,000.00 was authorized to establish fraud. The compensability of this claim was denied in July 2003 based only on the records from the Edgewood Clinic. Phillip Moory, a special investigator with Summit, testified that he did not even speak to the doctor but only spoke to personnel at the clinic. He did not recall seeing any specific record which indicated that Mr. Mullins could return to work.

We agree with the WCJ that there was no willful misstatement made by Mr. Mullins in an attempt to obtain workers’ compensation benefits. His complaints have been consistent since the accident. Furthermore, there is no evidence that any physical actions on his part were ever extraordinary. As previously mentioned, Mr. Mullins testified that some days were better than others. He was not able to perform the same work that he did previously at the mobile home moving company, and he did not receive any payment for the services.

PENALTIES AND ATTORNEY FEES

Concrete & Steel Erectors finally claims that the trial court erred in awarding penalties for failure to pay the Edgewood Clinic bill and wage benefits. It also claims that the award for attorney fees is erroneous. It claims that penalties and attorney fees | (¡should not be awarded given the lack of objective evidence of injury, exaggerations and false statements contradicted by videotaped activities, lack of medical evidence or reports relating the complaints to the original injury, and numerous discrepancies that fail to corroborate Mr. Mullins’ allegations of an accident and injuries.

Awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature, and are imposed to deter indifference and undesirable conduct by employers and their insurers toward injured workers. Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46. While the benefits conferred by the Workers’ Compensation Act are to be liberally construed, penal statutes are to be strictly construed. Id. at p. 9, 737 So.2d at 46.

Trahan v. Coca-Cola Bottling Co. United, Inc., 04-100, p. 17 (La.3/2/05), 894 So.2d 1096,1108.

Furthermore, “ ‘the purpose of an imposition of penalties is to “nudge the employer into making timely payments when there is no reasonable basis for refusing or delaying its obligation. ” ’ ” Thomas v. Browning-Ferris, Inc., 04-1584, p. 1 (La.2/25/05), 894 So.2d 1091 (quoting Brown v. Texas-LA Cartage, Inc., 98-1063, p. 13 (La.12/1/98), 721 So.2d 885, 893 (quoting Weber v. State, 93-62, p. 8 (La.4/11/94), 635 So.2d 188, 193)).

Penalty for Failure to Pay Medical Expenses

In oral reasons for judgment the WCJ awarded a penalty of $2,000.00 for failure to pay the bill at the Edgewood Clinic and at Rapides General Hospital. Concrete & Steel Erectors claims that this was in error because there was a failure to prove that it received demand for payment for the Edgewood Clinic bill. See Maride v. Sunbelt Builders, Inc., 05-398 (La.App. 3 Cir. 11/2/05), 916 So.2d 1226, writ denied, 05-2506 (La.3/31/06), 925 So.2d 1261.

|! nWhile there is evidence of a request from Summit to the Edgewood Clinic for copies of bills, there is no evidence that any demand was ever made for payment of bills incurred at either the Edgewood Clinic or Rapides Parish General Hospital. Mr. Moory testified that no bill was ever received from the Edgewood Clinic. We, therefore, find manifest error in the award of penalties for nonpayment of these bills.

Penalty for Discontinuance of Payment for Medical Treatment

The WCJ refused to award a penalty for discontinuance of payment for treatment of Mr. Mullins by Dr. Rush finding that the discontinuance occurred prior to the effective date of La.R.S. 23:1201(I). In his answer to the appeal, Mr. Mullins claims that this was error because the discontinuance occurred after the effective date of La.R.S. 23:1201(1).

Subsection I was added by 2003 La. Acts No. 1204, § 1 and was effective on August 15, 2003. The law in effect at the time of the denial of benefits governs a workers’ compensation claimant’s request for penalties and attorney fees. Reed v. Abshire, 05-744 (La.App. 3 Cir. 2/1/06), 921 So.2d 1224; Rivera v. M & R Cable Contrs., Inc., 04-985 (La.App. 3 Cir. 12/17/04), 896 So.2d 90; Skipper v. Acadian Oaks Hosp., 00-67 (La.App. 3 Cir. 5/3/00), 762 So.2d 122.

An itemized statement of Dr. Rush’s services indicates that he last received payment for his services on September 26, 2003. Furthermore, his office notes indicate that Dr. Rush received notice on February 27, 2004, that authorization for payment of Mr. Mullins’ medical expenses had been withdrawn. Therefore, we find that Mr. Mullins would be entitled to a penalty if he established that the discontinuance was arbitrary, capricious, or without probable cause.

hjMr. Moory, the investigator assigned to the claim, testified that he received the case around June 20, 2003. He agreed that he spent around $41,000 investigating this claim. The only records he used to deny the claim were the records from the Edgewood Clinic. He admitted that he had no information that an accident had not occurred and had no record that stated that Mr. Mullins could return to work. He also spoke to the Redmans and reviewed the second injury fund questionnaire.

From the very beginning, it is obvious that Summit set out on a mission to establish fraud. No effort was made to ascertain the true medical condition of Mr. Mullins when there is no question that a two-by-four fell from a distance and hit his right shoulder. This behavior exhibited by Summit is most egregious and insults the purpose of the Workers’ Compensation Law. Therefore, we find the WCJ was clearly wrong in failing to award a penalty for discontinuing payment of medical benefits to Dr. Rush. We find that, under the circumstances, Mr. Mullins is entitled to the maximum penalty for the violation that occurred after the effective date of La.R.S. 23:1201(1) in the amount of $8,000.00.

Penalty for Failure to Pay Wage Benefits and Award of Attorney Fees

Concrete & Steel Erectors also claims that the trial court erred in awarding a $2,000.00 penalty for failure to pay wage benefits and in awarding an attorney fee of $7,500.00. It argues that the claim was reasonably controverted through investigation and review of medical records. Based on the above discussion, we disagree and affirm this award.

In his answer to the appeal, Mr. Mullins asked for an increase in the award of attorney fees for work necessitated by this appeal. Considering the issues discussed 119in this appeal and the additional work required, we find that an increase in attorney fees is warranted. We find that $1,500.00 is an appropriate amount.

For the reasons set forth in this opinion, we reverse the penalty award of $2,000.00 for failure to pay the Edgewood Walk-In Clinic bill and the Rapides Parish General Hospital bill. We award a penalty of $8,000.00 for discontinuing payment for Dr. Rush’s services. We also amend the judgment to provide for an additional attorney fee in the amount of $1,500.00 for work necessitated by this appeal. The judgment is affirmed in all other respects.

REVERSED IN PART; AFFIRMED AS AMENDED.

      . The WCJ inadvertently referred to the statute as La.R.S. 23:1208.1 in his oral reasons.

      . We note that La.R.S. 23:1201(1) now provides that the award of multiple penalties is subject to an $8,000.00 cap. However, a determination not to pay compensation benefits was made on June 27, 2003, before the August IS, 2003 effective date of La.R.S. 23:1201(1). Therefore, the cap would not apply to limit this penalty award.


text:
    STATE of Louisiana v. Melvin SIGUE.
    No. 2006-527.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Rehearing Denied Nov. 15, 2006.

      W. Jarred Franklin, Louisiana Appellate Project, Bossier City, Louisiana, for Defendant/Appellant, Melvin Sigue.
    J. Phil Haney, District Attorney-Sixteenth Judicial District, ADA Robert C. Vines, ADA Jeffrey J. Trosclair, New Iberia, Louisiana, for Plaintiff/Appellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hOn March 3, 2004, Melvin Sigue was charged by bill of information with one count of possession of cocaine with intent to distribute, a violation of La.R.S. 40:967, and with one count of possession of dihy-drocodeinone, a schedule II narcotic, a violation of La.R.S. 40:968.

On March 10, 2004, the Defendant entered a plea of not guilty to all charges, and the matter was fixed for trial. After jury selection, the Defendant withdrew his plea of not guilty and entered a best interest no contest plea to the charge of possession of cocaine, with intent to distribute, in accordance with a plea agreement. Pursuant to the Defendant’s plea, the State agreed to dismiss the remaining charge.

On November 3, 2005, the trial court held a sentencing hearing at which time the Defendant orally moved to withdraw his plea of no contest, but the trial court denied the motion. The trial court then sentenced the Defendant to imprisonment at hard labor for a term of ten years, with credit given for time served. On November 22, 2005, the Defendant filed a motion to reconsider sentence. The trial court denied the motion without providing written reasons. The Defendant is now before this court on appeal, asserting (1) that the trial court erred by denying his motion to withdraw his no contest plea; and (2) that the trial court imposed an excessive sentence. We disagree and affirm the Defendant’s sentence.

FACTS

Because the Defendant entered a best interest no contest plea to the charge of possession of cocaine, with intent to distribute, the facts are taken from the transcript of the plea proceedings, as follows:

BY MR. VINES (Assistant District Attorney): The evidence in this case, Your Honor, would indicate that on the date alleged in the Bill Rof Information, in Iberia Parish, agents with the Narcotics Division of Iberia Parish Sheriffs Office received information from an informant that she could purchase cocaine or get cocaine from [the Defendant]; they set up at a local hotel, the South-land Inn. They set up the room with a video camera. They monitored a telephone conversation between the confidential informant and [the Defendant]. [The Defendant] traveled in his vehicle to the Southland Inn, entered the hotel room; the officers entered the hotel room from an adjacent room next door after [the Defendant] was captured on tape inside the hotel room with the confidential informant. The officers detained [the Defendant], found him to be in possession of cocaine. They arrested him; they ran a dog on the vehicle that he traveled to the hotel in; the dog alerted for the presence of illegal narcotics; they searched the vehicle and found a packet of cocaine in the vehicle. The evidence would indicate that [the Defendant] possessed that cocaine with the intent to distribute.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the Defendant asserts that the trial court erred by failing to allow the Defendant to withdraw his plea of no contest. In his brief to this court, the Defendant asserts that, consistent with allegations he made in his post-plea motions, the Defendant understood the plea agreement to include a maximum five year sentence, and without that five year sentencing cap, he would not have entered the no contest plea.

During the sentencing hearing, the Defendant orally moved to withdraw his plea. During that hearing, the Defendant asserted that his plea was “coerced by psychological persuasion.” The trial judge then asked the Defendant, “Who coerced you?” The Defendant eventually replied that the coercion was committed by the trial judge and his own attorney at the pre-trial conference in the judge’s chambers. The | ^record indicates that the Defendant did not specify any statements made by the trial judge, by the State, or by his own attorney that were coercive. The trial court denied the Defendant’s motion:

BY THE COURT: If I am hearing you right, you want a motion to withdraw your plea, which I am going to deny. Based on my memory of this case, nothing in your case was done any differently than the other hundreds of cases we handle.
We have pre-trial conferences. You had your day before the jury.
I strongly suggested you go to the jury.

The trial court then suggested to the Defendant that, “[i]f you are do [sic] a motion to withdraw your plea, written and formal, you are going to have to have a little more than you started with today.” On January 10, 2005, the Defendant filed a written motion to withdraw his no contest plea, in which he asserted that the Boykin colloquy clearly indicated his “disinclination” to accept a no contest plea, or any other type of plea. However, the record indicates that this allegation is directly refuted by the Defendant’s own statements during the Boykin hearing. When the trial court asked him if he understood that his no contest plea would have the same effect as a guilty plea, he answered in the affirmative. The trial court then asked him whether he was sure that is what he wanted to do. The Defendant again answered in the affirmative. The trial court denied the written motion on January 17, 2005, with no written reasons.

The Defendant also raises a claim about the plea in his “motion for reconsideration” filed on November 22, 2005. In that motion, the Defendant asserted that “dilatory tactics [were] employed to impede his desire to proceed to trial by the State and Defense Attorney.” However, the record indicates that the Defendant does not specify what actions, taken either by the State or by his own attorney, constituted 14tactics designed to impede the proceedings. The record also indicates that though the Defendant described the motion as a “motion to reconsider his motion to -withdraw,” the remaining claims in that motion involve the sentence. Therefore, we will discuss those remaining claims below.

On December 2, 2005, the Defendant filed an application for post-conviction relief in the trial court, wherein he asserted again that the trial court and his own attorney employed coercion in order to persuade him to enter the no-contest plea. As in the previous motions, the Defendant did not specify any of the alleged coercive actions. On December 7, 2005, the Defendant filed a “motion of supplemental brief’ wherein he also claimed that he pled no contest in return for an agreement whereby he would be sentenced to no more than five years imprisonment.

This court has determined when a defendant should be allowed to withdraw his plea based on a mistaken belief regarding his sentence:

A guilty plea is invalid, or constitutionally infirm, when a defendant is induced to enter a plea of guilty by a plea bargain agreement, or what he reasonably or justifiably believes was a plea bargain agreement, and the terms of the bargain are not satisfied. State v. Jones, 546 So.2d 1343, 1346 (La.App. 3d Cir.1989); State v. Taylor, 535 So.2d 1229, 1230 (La.App. 3d Cir.1988), quoting State v. Dixon, 449 So.2d 463, 464 (La.1984). It is well settled that if a defendant’s misunderstanding is not induced by or attributed to representations made by the district attorney or the trial court, there is no ground for invalidating the guilty plea. State v. Malmay, 548 So.2d 71, 73 (La.App. 3d Cir.1989); State v. Jones, supra.
It is also well settled that a misunderstanding between a defendant and counsel for defendant does not have the same implication as a breached plea bargain agreement, and this misunderstanding does not render the guilty plea invalid. State v. Lockwood, 399 So.2d 190 (La.1981); State v. Johnson, 533 So.2d 1288, 1292 (La.App. 3d Cir.1988), writ denied, 563 So.2d 873 (La.1990). In the absence of fraud, intimidation, or incompetence of counsel, a guilty plea is not made less voluntary or less informed by the considered advice of counsel. See, State v. Johnson, 461 So.2d 1259, 1261 (La.App. 1st Cir.1984).

State v. Readoux, 614 So.2d 175, 176-77 (La.App. 3 Cir.1993).

| ¡¡Additionally, “[a] misunderstanding does not have the same implications that a breached plea bargain has,” and a defendant may not withdraw his guilty plea simply because the sentence imposed was heavier than expected. State v. Lockwood, 399 So.2d 190, 193 (La.1981); see also State v. Robinson, 311 So.2d 893 (La.1975).

In his brief to this court, the Defendant asserts that his plea agreement was induced by an agreement that he would not be sentenced to more than five years. In contrast to that assertion, the plea agreement form clearly shows that the Defendant agreed to plead no contest to possession of cocaine with intent to distribute, and, by a handwritten notation, that the sentencing range of the offense was from two to thirty years, with two years to be served without benefits. Additionally, during the plea hearing, the trial court discussed the sentence range with the Defendant:

BY THE COURT: The penalty is at [La.R.S. 40:967(B)(4)(b) ]: Upon conviction shall be imprisoned to a term of hard labor for not less than two nor more than thirty years, with the first two years being without the benefit of probation, parole, or suspension of sentence; and may be fined to pay not more than fifty thousand dollars.
Do you understand the penalty?
BY THE DEFENDANT: Yes, Ma’am.

Based on the plea agreement form and the plea hearing discussion, we find that the Defendant failed to show that either the State or the trial court induced any misunderstanding of his possible sentencing exposure. Therefore, the Defendant’s assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the Defendant asserts that the trial court imposed a sentence that is excessive for the particular offense and the particular offender. The Defendant asserts that the sentence is excessive because nearly twenty | (¡years had passed between his prior conviction and the charged offense, because the charged offense was non-violent, and because the Defendant was employed and supporting his wife and her three children. Further, the Defendant asserts that the trial court failed to adequately consider the mitigating factors present in his case.

In his brief to this court, the Defendant refers to the motion for reconsideration, filed on November 22, 2005, and discussed in part above, as his motion for reconsideration of sentence. In that motion, the Defendant asserts that his ten-year sentence is excessive because it is his first drug conviction, because his prior conviction was nine years past and he had completed his probation, and because the trial court failed to observe, prior to imposing sentence, a twenty-four-hour delay after denying the motion to withdraw his guilty plea. However, in his brief to this court, the Defendant did not assert that the trial court erred by failing to observe any time delay. Accordingly, that claim is not properly before this court.

After being charged by bill of information with one count of possession of cocaine with intent to distribute, a violation of La.R.S. 40:967, and with one count of possession of dihydrocodeinone, a schedule II narcotic, a violation of La.R.S. 40:968, the Defendant entered a best interest no contest plea to the charge of possession of cocaine, with intent to distribute. At sentencing, the trial court stated:

BY THE COURT: [Your criminal record] shows that this is not your first time.
That you have been involved with the law since a juvenile [sic].
But as an adult, sir, you have been involved with the law — you pled guilty to Negligent Homicide, amended down from Attempted Second Degree Murder. I don’t know how that happened. You got three years hard labor. You pled guilty to Armed Robbery and you got fifteen years hard labor.
You were paroled in '96. Your parole closed satisfactorily, I |7suggest, in December, 2002.
You picked up another charge in 2000, Possession with Intent to Distribute Cocaine in Iberia Parish that was nolle prossed.
Criminal Neglect of Family, that’s between you and your children.
And this offense, January 8, 2004, Possession with Intent to Distribute Cocaine.
I knew that your criminal history was going to involve some crimes of violence.
I focused in, though, on the person you have been since you were paroled. And since your parole was terminated satisfactorily, I had to consider the whole person.
I had to consider the fact that you are standing here today, and they have you as the second felony offender because you plead guilty [sic]; conviction and arrest was different on the Armed Robbery and the Negligent Homicide.
I sentence you according to the charge and the record that you have, nowhere near what a maximum sentence would have been.

A person convicted of possession of cocaine with intent to distribute may be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years, with the first two years to be served without benefit of probation, parole or suspension of sentence, and may be ordered to pay a fine of not more than fifty thousand dollars. See La.R.S. 40:967(B)(4)(b).

This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const. art.[l], § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La,1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

In order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

Originally, the Defendant was charged with one count of possession of dihydroco-deinone, a schedule II narcotic, a violation of La.R.S. 40:968, in addition to the charge of possession of cocaine with intent to distribute. Under La.R.S. 40:968, the Defendant could have received a sentence of up to five years imprisonment, along with a fine of up to five thousand dollars, in addition to the ten-year sentence imposed by the trial court. By pleading guilty pursuant to a plea agreement that the State would not prosecute him for the additional charge, the Defendant received a significant benefit by reducing his exposure to a sentence for 19that charge.

In his brief to this court, the Defendant additionally asserts that the trial court failed to adequately consider the applicable mitigating factors. In discussing a review of sentences, this court opined in State v. Williams, 02-707, pp. 8-9 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095, 1100-01:

The trial court must state for the record the considerations taken into account and the factual basis for the sentence. La.Code Crim.P. art. 894.1(C). Although the trial court need not refer to every factor listed in Article 894.1(A), the record should affirmatively reflect that adequate consideration was given to codal guidelines in particularizing the defendant’s sentence. State v. Iron, 00-1238 (La.App. 3 Cir. 2/15/01); 780 So.2d 1123, writ denied, 01-1232 (La.3/15/02); 811 So.2d 898. Yet, when the trial court fails to adequately address the factors of La.Code Crim.P. art. 894.1, “the trial court’s reasoning alone will not necessitate the need for re-sentencing as long as an adequate factual basis is found within the record.” State v. Butler, 98-1258, p. 7 (La.App. 3 Cir. 2/3/99), 734 So.2d 680, 684.

Even if the trial court’s consideration of mitigating factors is determined by this court to be inadequate, resentencing would not be necessary since the record contains an adequate factual basis to support the sentence.

This court further stated in Williams, 839 So.2d 1095, 1101:

The trial court may also consider other factors not provided by La.Code Crim.P. art. 894.1. Specifically, when the offense to which the defendant has pled guilty inadequately describes the entire course of the defendant’s conduct, the court may consider the benefit obtained by the defendant through the plea bargain. State v. Lanclos, 419 So.2d 475 (La.1982). The trial court should particularly make such considerations where the plea bargain results in a significant reduction in the defendant’s potential exposure to imprisonment. State v. Robinson, 33,921 (La.App. 2 Cir. 11/1/00); 770 So.2d 868; State v. Waguespack, 589 So.2d 1079 (La.App. 1 Cir.1991), writ denied, 596 So.2d 209 (La.1992). In addition, the trial-court may consider other criminal activity which did not result in a conviction. State v. Texada, 98-1647 (La.App. 3 Cir. 5/5/99); 734 So.2d 854, writ denied, 00-2751 (La.6/29/01); 794 So.2d 824.

At the time of entry of the Defendant’s plea, and when he was advised of the maximum penalty, the Defendant decided that the benefits to him in accepting the hnPlea outweighed any disadvantages.

While not listing all factors to be considered when applying the sentencing guidelines set forth in La.Code Crim.P. art. 894.1, the trial judge stated her consideration of the provisions in her reasons for imposition of the sentence. In light of the Defendant’s criminal history, and the substantial benefit of the elimination of his exposure to a sentence from the dismissed charge, we find that the ten-year sentence is not excessive.

CONCLUSION

We find that the trial court did not err in denying the Defendant’s motion to withdraw his no contest plea, and that it did not abuse its discretion in sentencing the Defendant to imprisonment for ten years for the offense of possession of cocaine with intent to distribute.

AFFIRMED.


author: PICKETT, Judge.

text:
    STATE of Louisiana v. Sean A. STRANGE.
    No. 06-497.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.

      Hon. J. Phillip Haney, District Attorney, New Iberia, LA, Jeffrey J. Trosclair, Assistant DA, Franklin, for State/Appellee, State of Louisiana.
    G. Paul Marx, Attorney at Law, Lafayette, LA, for DefendanVAppellant, Sean A. Strange.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   PICKETT, Judge.

i„STATEMENT OF FACTS

On the morning of November 19, 2002, the defendant, Sean Strange, and his cousin, Talbert Porter, were traveling east on Interstate 10 in St. Martin Parish in the defendant’s Ford Thunderbird. Louisiana State Trooper Troy Dupuis pulled the vehicle over because he noticed it displayed two license plates-one regular or “hard” license plate located in the customary position near the rear bumper of the car, and also a temporary paper tag displayed in the vehicle’s back window. Mr. Porter, who had been driving, could not produce his driver’s license, and Trooper Dupuis’ check determined that it had been suspended.

As Trooper Dupuis questioned the men about their destination and the ■ general plans for their trip, they both told him that they were traveling from Dallas, Texas to Florida to stay with an aunt. The men did not know, however, the directions to the aunt’s home and could not tell him how long they would be staying in Florida. Trooper Dupuis, suspicious that the men might be involved in illegal narcotics activity, obtained the defendant’s oral and written consent to search the vehicle. In the course of his search, Trooper Dupuis discovered approximately sixty pounds of marijuana concealed in a false compartment behind the car’s rear bumper. The defendant and Mr. Porter were arrested and a search of the vehicle incident to the arrests revealed small amounts of cocaine and methamphetamine in Mr. Porter’s wallet, which had been concealed behind the vehicle’s glove compartment.

ASSIGNMENTS OF ERROR

The defendant, Sean Strange, was charged by bill of information on January 3, |j>2002, with one count of possession of marijuana with the intent to distribute in violation of La.R.S. 40:966(A)(1) and one count of possession of cocaine in violation of La.R.S. 40:967(C).

On May 8, 2003, the trial court granted the defendant’s Motion to Suppress, finding that the officer who stopped the defendant’s vehicle did not have grounds for reasonable suspicion for the stop. On December 30, 2003, this court denied the State’s supervisory writ application and upheld the defendant’s Motion to Suppress. However, the Louisiana Supreme Court granted the State’s writ application and subsequently reversed the trial court’s ruling on the Motion to Suppress. See State v. Strange, 04-273 (La.5/14/04), 876 So.2d 39.

The matter was remanded and continued to a two-day jury trial, which began on March 1, 2005. The jury found the defendant guilty of attempted possession of marijuana with intent to distribute. On August 12, 2005, the trial court imposed a sentence of five years at hard labor, with all but eighteen months suspended, and supervised probation for three years following his custodial release. The defendant subsequently filed a Motion to Reconsider, which was denied on October 21, 2005.

The defendant now appeals his conviction, arguing that the evidence presented by the state was insufficient to support the verdict, and that the search of his vehicle was illegal because he was detained for “an unreasonable time after the end of the traffic stop investigation.”

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find Rone error patent.

The trial court erred when it ordered the defendant to pay a probation supervision fee of “not less than $50.00” per month. When probation is ordered, a probation supervision fee must be imposed as a condition of probation. La.Code Crim.P. art. 895 and State v. Bey, 03-277 (La.App. 3 Cir. 10/15/03), 857 So.2d 1268. By failing to impose a definite supervision fee, the trial court gave the probation office discretion to establish a greater amount. In State v. Patterson, 628 So.2d 107 (La.App. 5 Cir.1993), the fifth circuit stated that any conditions of probation not imposed by the trial court are illegal and should not be used for revocation. This matter is remanded and the trial court is instructed to impose a definite probation supervision fee as mandated by La.Code Crim.P. arts. 895 and 895.1.

Further, we find that the minutes of sentencing are in need of correction. According to the minutes of sentencing, the trial court ordered the defendant to pay a fine of $2,500.00 plus court costs. The minutes also indicate that the trial court ordered the defendant to pay $20.00 for clerk’s costs. The transcript of sentencing, however, does not indicate that the trial court imposed either of the above costs. According to the transcript, the trial court imposed $250.00 for the cost of prosecution and $250.00 for the cost of investigation, both of which are listed in the minutes of sentencing. No other costs of court are specified in the transcript. The minutes of sentencing should reflect the sentence set forth in the sentencing transcript. Thus, on remand, the minutes of sentencing must be corrected to accurately reflect the sentence set forth in the sentencing transcript.

I ASSIGNMENT OF ERROR NUMBER ONE

For his first assignment of error, the defendant asserts that the State failed to “establish knowing possession of marijuana where the defendant purchased a car and drove through Louisiana and only an expert state trooper could have discovered a hidden compartment in the car.” In support of his argument, the defendant argues that he did not know that the drugs were concealed in the vehicle, and that they were either already in the car when he purchased it four days earlier, or put there after the purchase by someone else without his knowledge.

In State v. Touchet, 04-1027, pp. 1-2 (La.App. 3 Cir. 3/9/05), 897 So.2d 900, 902, this court stated:

With regard to sufficiency of the evidence, this court set forth as follows in State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27:
When the issue of sufficiency of evidence is raised on appeal, 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); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witness. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).
In order for the State to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt. In order for this court to affirm a conviction, the record must reflect that the State has satisfied this burden of proving the elements of the crime beyond a reasonable doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 367.

The defendant in the instant case was convicted of attempted possession of marijuana with intent to distribute in violation of La.R.S. 40:966(A)(1) and La.R.S. 14:27. Louisiana Revised Statutes 14:27 sets forth the definition of “attempt,” stating the following:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Louisiana Revised Statutes 40:966(A)(1) states that it is “unlawful for any person knowingly or intentionally ... [to] possess with intent to produce, manufacture, distribute, or dispense” marijuana.

In State v. Odle, 02-226 (La.App. 3 Cir. 11/13/02), 834 So.2d 483, writ denied, OS-625 (La.6/20/03), 847 So.2d 1219, the court noted the discrepancy between the intent requirements of the attempt statute and the controlled dangerous substances possession statutes. The court pointed out that the definition of attempt as found in La.R.S. 14:27 requires a finding of the specific intent to commit the charged offense. However, the controlled dangerous substances statutes only require a finding of general intent to establish guilt. However, this court has previously stated that “compromise verdicts are permissible, so long as the evidence supports either the verdict given or the original charge.” State v. Charles, 00-1611, p. 5 (La.App. 3 Cir. 5/9/01), 787 So.2d 516, 519, writ denied, 01-1554 (La.4/19/02), 813 So.2d 420 (citing State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983)). Pursuant to Elaire, the Odie court considered whether the Instate had presented sufficient evidence to sustain a conviction for the charged offense before determining whether a consideration of the evidence to support the responsive verdict was necessary. Odle, 834 So.2d 483. See also State v. Wilson, 04-1541 (La.App. 3 Cir. 4/6/05), 900 So.2d 287, rev’d in part on other grounds, 05-1486 (La.2/17/06), 921 So.2d 103 (holding that the court need not consider whether evidence supported second degree battery verdict where the court found that evidence was sufficient to support original aggravated burglary charge).

In the instant matter, there was sufficient evidence for the jury to have found that the State proved beyond a reasonable doubt the essential elements of the offense of possession of marijuana with intent to distribute.

In his appellate brief to this court, the defendant argues specifically that the State did not establish that he knowingly possessed the drugs in the car. Additionally, citing State v. Major, 03-3522 (La.12/1/04), 888 So.2d 798, he argues that “mere presence in a vehicle carrying narcotics is insufficient to prove knowing possession unless it is shown that the defendant has dominion and control within his reach.”

To begin, we note that Louisiana courts have consistently held that the prosecution need not demonstrate that the defendant actually possessed an illegal substance to convict, but may instead prove constructive possession. State v. Trahan, 425 So.2d 1222 (La.1983)., An illegal substance may be constructively considered within a person’s possession where the state proves that he had dominion and control over the substance, even if it is not in his physical possession. State v. Harris, 94-970 (La.12/8/94), 647 So.2d 337. “A determination of whether there is sufficient ‘possession’ of a drug to convict depends on the particular facts of each case.” Major, 888 So.2d at 802. Specifically, this court has noted that in addition to mere presence in the area where the drug is found, other factors should be considered in determining dominion and control including: “his knowledge that illegal drugs are in the area, his relationship with the person found to be in possession, his access to the area where the drugs are found, and his physical proximity to the drugs.” Odle, 834 So.2d at 490.

In the present case, the evidence at trial established that the defendant was the owner of the vehicle in which the drugs were found. He had purchased the vehicle four days prior to his trip from Texas to Florida. The defendant testified that he had borrowed twelve hundred dollars for a down payment to purchase the vehicle to give to his estranged wife, so that she would move out of his residence because he feared for the safety of his children. However, he stated that he then decided to take the vehicle on a trip to Florida for an unspecified amount of time between three and seven days. Additionally, he stated that he left the children alone with his wife while he was on the trip, despite his concerns over her “harming” the children and using drugs.

The defendant testified that he left with his second cousin, Mr. Porter, to visit an aunt the two men shared, although he stated that he had never personally met the aunt and did not know about her before hearing of her from Mr. Porter. He stated that the men decided to leave at night to avoid traffic. They left from Dallas and drove to Natchitoches, Louisiana, where they stopped between eleven and twelve o’clock at night and rested in a hotel for five or six hours. Mr. Porter, whose driver’s license was suspended, drove the vehicle when the men left the hotel the next morning.

At trial, Trooper Dupuis stated that he saw the vehicle traveling eastbound on Interstate 10 and pulled it over because it contained both a permanent license plate as | swell as a temporary licensing tag affixed to the back window. He stated that the driver of the vehicle, Mr. Porter, could not produce a driver’s license. Trooper Dupuis testified that during the course of the stop he determined that the vehicle did have proper registration because it had been purchased only a few days earlier. However, Trooper Dupuis stated that in his experience, many of the cars carrying contraband on the interstate have often been purchased shortly before the trip.

The trooper spoke with both Mr. Porter and the defendant during the course of the stop. Trooper Dupuis testified that the men stated that they were going to visit Mr. Porter’s aunt in Florida, although only one specified that they were going to Tallahassee. Additionally, he said that neither man knew exactly where the aunt lived, which made him suspicious. Instead, Mr. Porter said that the men were going to call his grandmother in Colorado to get the directions to his aunt’s house in Tallahassee.

He stated that when he approached the passenger window to talk to the defendant, he appeared “very nervous, very fidgety,” and he asked the defendant if he was all right due to his nervousness. Trooper Dupuis stated that, after speaking with both the defendant and Mr. Porter, he was sufficiently suspicious to request a search of the vehicle from the defendant. He stated:

Well, in my own experience any [sic] my training, again, if you are going to travel halfway across the country, you are going to know exactly where you are going, who you are going to stay with, how to get there, and when you are coming back. Plus, along with all the nervousness that I saw on Mr. Strange, I decided to go ahead and ask for permission to search the vehicle.

Trooper Dupuis stated that he did not initially find any contraband in his search of the passenger compartment or trunk of the vehicle. The trooper explained the next steps of his search as follows:

|nI got on my back and looked underneath, underneath where the bumper is and I noticed some altercations [sic] down there. I continued my search. I noticed that there were scratches there of tool marks. I also noticed that there was a film of dust on the bumper. I am talking about I am looking underneath now, not where you can visibly see. Underneath looking up, there was a film of dust and fresh fingerprints like somebody had just recently put their fingers on there and disturbed the dust. And I figured that there was a compartment in the bumper. So the bumper cover is held on underneath by some little plugs. There is actually a hole in the bumper and the bumper cover plugs in there and that is how it stays on the bumper. Well, I pulled one of those plugs out and I stuck a metal probe inside that bumper and came out [sic] I smelled it, and it was marijuana.

He stated that after probing the bumper, he arrested both men. Trooper Dupuis removed the bumper cover and found a false compartment containing approximately sixty pounds of marijuana packaged in “bricks” wrapped with duct tape.

Trooper Dupuis searched the interior of the vehicle again after finding the marijuana in the bumper. He testified that he found a wallet secreted behind the vehicle’s glove box, not inside the box itself. He stated that the wallet contained what was later determined to be approximately a gram of cocaine and a gram of methamphetamine. He testified that the wallet also contained a driver’s license belonging to Mr. Porter and stolen checks.

The vehicle was turned over to the Louisiana State Police Narcotics Division, where Trooper Mitchell Fontenot processed the vehicle and handled the evidence. Trooper Fontenot stated that the marijuana appeared to be “green” and “relatively fresh.” He explained that marijuana that stays in a sealed package for an extended time period or goes through extreme temperature changes may mold, decompose, or dry out and change to a brownish color.

Considering the entirety of the aforementioned evidence, we find that there was | ^sufficient evidence presented for the jury to find that the defendant constructively possessed the marijuana found in his vehicle. As the owner of the vehicle, the defendant had complete access to the vehicle, including the bumper area where the marijuana was found. He testified that he picked up the vehicle from the dealership on the Friday before his trip. Trooper Fontenot, a narcotics officer, testified that the drugs were “relatively fresh[,]” and had not yet undergone the changes that would occur had they been there for an extended period of time. The defendant stated that the vehicle sat in the driveway of his home, which was “out in the country[,]” until his trip on Monday evening. The defendant stated that he did not know how the drugs got into the car, or whether they had been there when he purchased it. He testified that Mr. Porter lived nearby, had visited that weekend and would have had access to the vehicle, although he stated that he had three pit bull dogs on his property that weekend.

Although the marijuana was not within his reach as driver or passenger inside the vehicle, this court has previously determined constructive possession of drugs found outside of a vehicle’s passenger compartment. In Odle, 834 So.2d 483, this court considered the constructive possession factors stated above to determine that cans of cocaine suspended in the vehicle’s gas tank were within the constructive possession of the vehicle’s driver, Andre Ricardo Shaw, as well as his passenger, David Odie. With regard to Shaw, who owned the vehicle, the court stated:

Considering the evidence, particularly the fact that Shaw was acting abnormally, gave information to the police that was inconsistent with that given by Odie, was surrounded by a gasoline smell as well as an air freshener smell while in the vehicle, along with the fact that rags containing gasoline were found in the cargo area of the vehicle and his explanation for them was lacking, the fact that the gas tank had recently Inbeen tampered with, was geared to always read full, and there were several cans of cocaine hidden in the gas tank, we find that sufficient evidence was presented to the jury for it to find that Shaw constructively possessed the cocaine.

Id. at 492.

The State presented similar evidence in the instant matter. Trooper Dupuis testified that the defendant exhibited nervous behavior during the course of the stop and that Mr. Porter could not produce a driver’s license. He also stated that the two men were unclear in their explanations of the destination of their trip, their route of travel or the length of the trip’s duration. Additionally, he stated that during his search of the undercarriage of the vehicle, he noticed tool markings on the bumper’s bolts and fingerprints in the dust on the bumper cover which caused him to probe the bumper with a metal rod. Further, the defendant stated that he had approximately $800.00 cash in his pocket on the day of the arrest, which he said a friend had paid him for doing some construction work. However, the defendant also stated that he was collecting unemployment because he had been laid off from his job and had to borrow the $1200.00 down payment for the vehicle just four days earlier.

Finally, the Louisiana Supreme Court has stated that the presence of a large amount of drugs in a car may itself be indicative of drug dealing and may suggest that the driver was not an innocent third party, but instead had knowledge of the drugs. State v. Major, 03-3522 (La.12/1/04), 888 So.2d 798 (citing Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 801, 157 L.Ed.2d 769 (2003)) (“The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him.”); United States v. Serrano-Lopez, 366 F.3d 628, 635 (8 Cir.2004) (“The large | ^quantity of drugs involved is evidence of the defendants’ knowledge. Even if the drugs were not owned by the defendants, it is unlikely that the owner would place approximately $130,000 worth of cocaine in the hands of people who do not even know it is there.”). In Major, the defendant’s vehicle contained approximately 1.36 pounds of cocaine, which was worth more than $60,000.00.

Comparatively, in the instant matter, the State presented evidence that the marijuana found in the defendant’s vehicle weighed 60.92 pounds, which the State asserted would have had a street value of approximately $100,000.00. We find that, as in Major, due to the sheer amount and value of marijuana found in the defendant’s vehicle, it is reasonable to believe that the defendant, who owned the car, drove it the night before, and was a passenger at the time of his arrest, had some knowledge of the marijuana in the vehicle.

Consequently, based on the totality of the evidence, particularly the defendant’s nervous behavior, the tool marks and fingerprints underneath the bumper cover, the recent purchase of the vehicle, and the amount of drugs found in the vehicle’s bumper, we find that there was sufficient evidence presented for the jury to find that the Defendant constructively possessed with an intent to distribute the marijuana concealed in the vehicle. This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

For his second assignment, the defendant argues that the search of his vehicle was illegal because he was restrained for an unreasonable amount of time after the end of the traffic stop investigation. In his appellate brief to this court, the defendant acknowledges that the Louisiana Supreme Court has already determined that his | ^display of dual license tags provided Trooper Dupuis with reasonable grounds to stop the vehicle. However, the defendant asserts that after he had provided proper documentation explaining the dual tags, the traffic stop was over, and Trooper Dupuis should have discontinued his drug investigation.

In the instant matter, the Louisiana Supreme Court found that initial stop of the defendant’s vehicle and subsequent search of the vehicle were lawful. State v. Strange, 04-273 (La.5/14/04), 876 So.2d 39. Regarding Trooper Dupuis’ behavior after the stop, the court stated:

[T]he [appellate] court correctly found that “once the stop was made, everything that occurred after that was appropriate.” Nothing precluded Trooper Dupuis from engaging the defendants in conversation, State v. Lopez, 00-0562 (La.10/30/00), 772 So.2d 90, and the officer did not need any degree of reasonable suspicion, as opposed to intuition or “hunch,” to ask for, and receive, Strange’s consent to search the car. Consent is a well-recognized exception to the warrant requirement, State v. Owen, 453 So.2d 1202, 1206 (La.1984); State v. Packard, 389 So.2d 56, 58 (La.1980), and rendered lawful the subsequent discovery and seizure of the marijuana hidden behind the Thunderbird’s rear bumper. Seizure of the small amount of cocaine and methamphetamine from Strange’s wallet was incident to the lawful arrests and was therefore also lawful. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Wilson, 467 So.2d 503, 517 (La.1985).

Id. at 42.

This assignment of error lacks merit.

CONCLUSION

The defendant’s conviction is affirmed. The case is remanded for the trial court to impose a determinate probation supervision fee as mandated by La.Code Crim.P. arts. 895 and 895.1. Further, this court finds the sentencing minutes are in need of correction as far as the assessment of costs. The trial court is instructed to amend the minutes of sentencing to correctly reflect the imposition of costs set forth in the | ^sentencing transcript.

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS.