author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Charles Joseph STEVENS.
    No. 07-976.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      Mark 0. Foster, Louisiana Appellate Project, Natchitoches, Louisiana, for Defendant/Appellant, Charles Joseph Stevens.
    J. Phil Haney, District Attorney-Sixteenth Judicial District, ADA Jeffrey J. Trosclair, Franklin, Louisiana, for Appel-lee, State of Louisiana.
    Court composed of BILLY H. EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hOn November 14, 2006, the Defendant, Charles Joseph Stevens, was charged by bill of information with one count of communication of false information of planned arson, a violation of La.R.S. 14:54.1, and with one count of aggravated assault, a violation of La. R.S. 14:37. On April 26, 2007, a jury trial was held on count one, a felony charge, while count two, a misdemeanor charge,’was presented to the trial court for bench -trial. The Defendant was subsequently found guilty on both the felony and misdemeanor charges.

On May 22, 2007, the Defendant was sentenced to eight years at hard labor on the felony conviction of communication of false information of planned arson, with credit for time served, and six months in the parish jail on the misdemeanor conviction of aggravated assault, to run concurrently with each other, but consecutively to all other sentences. On June 7, 2007, the Defendant filed a motion to reconsider the sentence imposed for his felony conviction of false communication of planned arson. The motion was summarily denied on June 11, 2007. The Defendant is now before this court on appeal, asserting that the evidence was insufficient to convict him of false communication of planned arson and that his eight-year sentence for same is excessive. We affirm the Defendant’s conviction and sentence.

FACTS

On October 2, 2006, the Defendant engaged in a verbal altercation with his girlfriend, Cheryl Thibodeaux (Cheryl), while at the home of Rita G. Williams (Rita), Rita asked the Defendant to leave, and he refused to do so and pushed Rita to the side. Next, Cheryl raised a hammer as if she was going to hit the Defendant. The ^Defendant then took the hammer from her and threw it, striking her in the ankle area. When Rita picked .up the phone to call the police, the Defendant exited the home. Before leaving on his bicycle, the Defendant threatened to return to the home, nail the door shut, and set the home on fire with Cheryl, Rita, and Rita’s two young children inside. Upon the arrival of the police, Rita reported the incident. The Defendant was later located, arrested, and charged as set forth above.

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 note that there is an error patent, an error in the court minutes, and one procedural issue that must be addressed.

In this case, there was a misjoin-der of offenses in the bill of information. In a single bill of information, the State charged the Defendant with a felony, communication of false information of planned arson, and a misdemeanor, aggravated assault. Louisiana Code of Criminal Procedure Article 493 provides for the joinder of offenses in a single bill of information under limited circumstances, if the offenses joined are triable by the same mode of trial. The misdemeanor offense of aggravated assault is triable by a judge only; whereas, the felony offense of communication of false information of planned arson is triable by a jury. See La.R.S. 14:37, 14:54.1, and La.Code Crim.P. arts. 779 and 782. Because the Defendant was entitled to a jury trial for the felony charge and was not entitled to a jury trial on the misdemeanor charge, the offenses were not triable by the same mode of trial and should not have been charged in-the same bill of information. See La.Code Crim.P. art. 493. However, because the Defendant failed to file a motion to quash the bill of ^information based on the misjoinder, he waived any objection to the error. See La.Code Crim.P. art. 495 and State v. Mallett, 357 So.2d 1105 (La.1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 848, 59 L.Ed.2d 41 (1979). Accordingly, we find the issue of misjoinder to have been waived.

Next, we note that since the aggravated assault charge was not triable, by a jury, the proper mode of appellate review for that offense is an application for writ of review rather than an appeal. See La. Code Crim.P. art. 912.1. In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La.12/12/05), 917 So.2d 1084, this court severed a misdemeanor conviction for possession of marijuana from the defendant’s appeal of two felony convictions. This court ordered the “defendant to file a writ of review regarding the possession of marijuana conviction in compliance with the Rules of Court.” Id. at 289. In Turner, the court noted that the defendant did not make any specific arguments regarding the misdemeanor conviction. This court considered the notice of appeal as a notice to file a writ of review within thirty days of its opinion, if the defendant desired to seek review of his misdemeanor conviction.

As in Turner, the Defendant has not raised any assignment of error regarding his misdemeanor conviction. Therefore, as was done by this court in Turner, we sever the misdemeanor conviction from the appeal and order the Defendant to file a writ of review regarding the misdemeanor conviction in compliance with the Uniform Rules of Court, should he so desire.

Additionally, the minutes of sentencing contain an error. The minutes of sentencing state in pertinent part:

The court sentenced the defendant in [sic] the charge of communication of False Information of a Planned Arson to serve eight |4(8) years at hard labor, with credit for time served. The defense requested to make these sentences concurrent. The court denied this motion. The Court sentenced the defendant in [sic] the charge of Aggravated Assault to serve six (6) months in the parish jail to run concurrent with the Communication of False Information of a Planned Arson and consecutive with each other.

The transcript of sentencing provides in pertinent part: “For those reasons, the court sentences Mr. Stevens to serve eight years at hard labor ... No, it’s consecutive. On the other matter, I sentence him to serve six months in the parish jail. The sentence is concurrent with the sentence for the false information but consecutive to all other sentences.” (Emphasis added). Therefore, we remand the ease to the district court with instructions to amend the minutes of sentencing to correctly reflect the transcript of sentencing.

ASSIGNMENTS OF ERROR

The Defendant presents two assignments of error:

1. The evidence was insufficient to support a conviction for communication of false information of a planned arson in violation of La. R.S. 14:54.1.
2. The sentence imposed by the trial court was cruel, unusual, and excessive in violation of Article I, § 20 of the Louisiana Constitution of 1974.

Assignment of Eiror Number One

In this assignment of error, the Defendant argues that the evidence was insufficient to support a conviction for communication of false information of a planned arson. The analysis for a claim of insufficient evidence is well-settled:

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, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (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 witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

The elements of the instant crime are set forth in La.R.S. 14:54.1 which reads, in pertinent part:

A. Communicating of false information of arson or attempted arson is the intentional impartation or conveyance, or causing the impartation or conveyance by the use of the mail, telephone, telegraph, word of mouth, or other means of communication, of any threat or false information knowing the same to be false, including bomb threats or threats involving fake explosive devices, concerning an attempt or alleged attempt being made, or to be made, to commit either aggravated or simple arson.

At trial, Rita testified that, on October 2, 2006, she was living in New Iberia, Louisiana, with her two young boys. Cheryl and the Defendant, Rita’s cousin, were staying with her at the time. That day, Rita got off work at 2:00 p.m. and walked home with a friend. When she arrived at the end of her driveway, she could hear Cheryl and the Defendant arguing. Rita stated that she called the police. When the police arrived, they asked the Defendant to leave, and he left.

According to Rita, the Defendant returned to the home after the police left. Rita asked the Defendant not to enter her home, but he did not comply and pushed her to the side. Cheryl’s version of the story was somewhat different in that she stated that the Defendant pushed Rita when she was trying to get him to calm down. According to Cheryl, the Defendant arrived at the home intoxicated and was ^“fussing” with her for no reason. After Rita was pushed by the Defendant, Cheryl grabbed a hammer and stated that she acted as if she was going to hit the Defendant with the hammer, but did not follow through. Rita and Cheryl both testified that the Defendant took the hammer from Cheryl and threw it at her, hitting her in the ankle/foot area.

Rita testified that she continued to ask the Defendant to leave and threatened to call the police again. The Defendant did not leave until she picked up the phone and told him that the police were on the way. Next, Rita explained that the Defendant went outside and then threatened to return after they went to sleep to nail the door shut and to set the trailer on fire with Cheryl, Rita, and Rita’s two children trapped inside. Cheryl testified that she also heard the Defendant threaten to return and burn down the trailer with Cheryl, Rita, and Rita’s children inside. He then hopped on his bike and rode away. Rita added that the police arrived a second time, and they later returned with the Defendant in the police car. At trial, both Rita and Cheryl identified the Defendant in the courtroom.

Deputy Robert Burns was scheduled to testify, but the parties agreed to stipulate that Deputy Burns, if called to testify, would testify consistently with his narrative report of the investigation. Deputy Burns indicated in his report that, according to Rita, the Defendant had returned to her home after deputies had advised him earlier that day to leave and not return. Rita advised Deputy Burns that the Defendant started yelling at her and Cheryl. When she told him to leave, the Defendant picked up a hammer and threw it at Cheryl, just missing her left foot. Rita reported to Deputy Burns that she told the Defendant to leave and that, while he was exiting the front door, the Defendant stated that he would be back later when they 17were sleeping, he would nail the door shut, and he would set the residence on fire with everyone in it.

Deputy Burns indicated that he left the residence and canvassed the area looking for the Defendant. Deputy Burns located the Defendant riding his bike and stopped and questioned him. Next, after the Defendant was Mirandized and expressed his understanding of same, the Defendant advised Deputy Burns that he did not mean what he said to Rita and Cheryl and that it was “just talk.” Deputy Burns reported a strong odor of alcoholic beverage on the Defendant’s breath and person. At that point, the Defendant was taken into custody, transported to jail, and charged accordingly.

. In his brief to this court, the Defendant asserts that the State offered little or no evidence to prove beyond a reasonable doubt that the threat was not true. The Defendant adds that if there is any reasonable possibility that the statement was true, then the conviction fails. In support of his argument, the Defendant refers this court to State v. McKeel, 452 So.2d 1171 (La.1984). In McKeel, the defendant had pled guilty to simple arson of a business and received a three year suspended sentence, five years probation, and a $3,000.00 fine. While on probation from the arson conviction, the defendant entered the same business which was being repaired at the time and told a carpenter that he was going to burn the building down again. About a month later, the defendant drove up to the business again and shouted to the same carpenter that he thought he had burned it down for good. The defendant was arrested and charged | swith two counts of communicating threats of arson in violation of La.R.S. 14:54.1. The defendant was convicted in the trial court, but the convictions were reversed on appeal because the court found the statute to be unconstitutionally vague. The supreme court concluded that the statute was not vague, but that the record was devoid of any evidence which would show that the defendant’s statements were made knowing them to be false.

We note that, in McKeel, the supreme court did not expound on its conclusion regarding the lack of evidence to convict the defendant. Thus, only the facts mentioned above are known to compare to the instant case. The Defendant, nonetheless, contends that the only evidence offered with regard to whether or not the threat was true was the stipulated police report wherein Deputy Burns quoted the Defendant as saying that he was sorry and that he did not mean what he said.

Additionally, the Defendant complains that the State did not ask the alleged victims if they actually believed that the Defendant was serious when he made the threat to burn down the home. In support of his argument, the Defendant refers to State ex reí. R.T., 00-205 (La.2/21/01), 781 So.2d 1239, wherein a student made statements that he was going to blow up a high school. The state introduced the testimony of two witnesses to the principal incident underlying the charge of the offense. Both witnesses testified that, when asked if he was going to blow up the school, the defendant answered in the affirmative in a serious manner. Also, the defendant admitted at trial that the exchange concerning a bomb did take place, but that he had no true intent to do so. Thus, the supreme court concluded that the state presented uncontradicted evidence that information of a planned bombing was communicated and that the communication was false.

13First, with regard to the element of knowingly making a false statement, the stipulated police report of Deputy Burns is sufficient evidence to prove this element: In State v. Bernard, 98-994, p. 7 (La.App. 3 Cir. 2/3/99), 734 So.2d 687, 691 (citations omitted), this court stated, “It is well settled in Louisiana law that a jury may rely on a single witness’s testimony to establish a factual element required to prove guilt, provided there is no internal contradiction or irreconcilable conflict with physical evidence.” The Defendant’s statement to Deputy Burns that he did not mean what he said to Rita and Cheryl clearly indicates that he knowingly made a false statement.

Secondly, whether or not Rita and Cheryl thought that the Defendant’s threat was serious is not an element of the offense, but may indicate whether or not a threat was madé. Although the Defendant is correct in stating that Rita and Cheryl were not asked at trial if they thought the Defendant’s threat was serious, the fact that Rita called the police twice, the second time reporting the Defendant’s threat of arson, supports the notion that she took his threat seriously. Also, Rita experienced and witnessed threatening, physical behavior when the Defendant pushed her and threw a hammer at Cheryl. Additionally, the Defendant was under the influence of alcohol, which could lead Rita and Cheryl to the conclusion that the Defendant might act, irrationally and follow through with Ms threat. Lastly, the threat itself is barbaric and threatened not only the lives of Rita and Cheryl but the lives of two innocent children. Accordingly, the triers of fact were likewise entitled to conclude, based on the evidence presented, that a reasonable person hearing the Defendant’s threat to trap the occupants in the home and burn the home down would have taken the threat seriously-

1¶ nThirdly, although not an element of the crime, the Defendant states that his threat was private and not public. The Defendant asserts that if this case is affirmed, then it will be the first recorded case of a conviction under La.R.S. 14:54.1 for a private statement made in a private home. He maintains that the instant case involves a drunken domestic argument in a private home and that La.R.S. 14:54.1 was not an appropriate statute upon which to prosecute the Defendant in this matter. Again, it is noteworthy that the statute does not require the offense to have occurred in a public setting, although the reported cases do involve public places. Without such a requirement, this court must interpret the statute as stated, which does not exclude a threat made in a private setting.

Lastly, the Defendant argues that the type of behavior described herein is not the type of behavior envisioned by La.R.S. 14:54.1. The Defendant notes that the maximum sentence for a false communication of arson is the same as, or greater than, the maximum sentence for actually burning the structure down. Next, the Defendant asserts that had he truthfully threatened to burn the home down and then attempted to do same, he would have been exposed to one-half of the sentence he faced for the instant offense wherein he allegedly threatened to burn the home, but then did nothing.

Regardless of the penalties for the offenses the Defendant mentions herein, and which do not pertain to this matter, the evidence in the record supports the jury’s conclusion that the elements of the crime were proven at trial. The fact that the maximum penalty for the instant offense appears harsh compared to the penalties for arson-related crimes shows the legislature’s intent to deter the occurrence of these types of threats, not that it did not envision the type of behavior exhibited herein. InAccordingly, there' was sufficient evidence in the record to support Defendant’s conviction; therefore, his conviction is affirmed.

Assignment of Error Number Two

In this assignment of error, the Defendant argues that his sentence was cruel, unusual, and excessive. 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, 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, 00-1597, 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.

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 | T¡,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 penalty for communicating false information of arson is not more than twenty years at hard labor. See La.R.S. 14:54.1(B). Thus, the Defendant’s eight-year sentence was less than one-half of the maximum possible sentence.

In his motion to reconsider sentence, the Defendant asked'the trial court to reduce his sentence because the false communication for which he was' convicted was made to only two people regarding a residence in which the Defendant resided with those same two people. As such, the Defendant concludes that the offense does not fall within the broader scope of the statute which he alleges is designed to protect the public at large from such statements. Next, the Defendant contends that the false communication was part of a series of drunken outbursts made within a' family setting on the same day, thereby diminishing the impact which it may have had on the victims. Lastly, because of the Defendant’s assertion that the offense carried a lesser impact than that intended to be within the scope of La.R.S. 14:54.1, he urged the trial court to run the sentence imposed for this offense concurrently with his earlier sentence.

In his appellate brief, the Defendant questions how a private false statement with no public disruption could justify an eight-year sentence. The Defendant maintains that this issue is addressed in State v. Suire, 02-411 (La.App. 3 Cir. 10/2/02), 827 So.2d 569, wherein this court held that the defendant’s eight-year sentence for communicating false information of a planned bombing of the Office of | ^Community Services (OCS) in New Iberia was excessive. Pursuant to State v. Medious, 98-419 (La.App. 5 Cir. 11/25/98), 722 So.2d 1086, writ denied, 98-3201 (La.4/23/99), 742 So.2d 876, the following factors were considered by the court in Suire in reviewing the trial court’s sentence: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts.

With regard to the nature of the crime in Suire, the trial court noted that a bomb threat was delivered to a public office staffed by state employees engaged in family service wherein one would expect the public, including children, to be present. Also, the building was located in a residential neighborhood.

Concerning the background and nature of the defendant in Suire, the trial court observed that the defendant readily admitted to writing the note and did so because of his frustrating experiences with OCS involving the removal of his daughter from his custody. He voluntarily surrendered upon learning that he was being sought and called his act “stupid” and that he would have never done it had he known of the consequences. The defendant expressed his remorse to the court. He stated that he owed apologies to a lot of people and that the OCS has no need to fear him. Testimony at sentencing indicated that the defendant was a homebody who helped care for his invalid mother, had never been in trouble before, and had never been physically violent. The bomb threat was out of character for him. Although the trial court focused on material from the OCS which suggested a history of threats against the OCS, this court noted that the record lacked any submission from the OCS, and the only reference to any previous threat was contained in the Pre-Sentencing Investigation Report. Additionally in Suire, this court could find no evidence in the |14record to support the trial court’s finding that the defendant had a disabling mental condition for which he refused to take medication. Two psychiatrists indicated that he suffered from a mental illness, but the illness was not identified, and the record did not disclose the need for medication.

Lastly, this court in Suire compared sentences imposed for similar crimes by this court and other courts, including federal courts. In State ex rel. R.T., 33,246 (La.App. 2 Cir. 12/23/99), 748 So.2d 1256, aff'd in part, rev’d in part, 00-205 (La.2/21/01), 781 So.2d 1239, the facts of which were previously discussed, the defendant was sentenced to one year at hard labor. In State v. Sloan, 32,101 (La.App. 2 Cir. 8/18/99), 747 So.2d 101, the trial court sentenced the defendant to five years at hard labor for attempted communication of false information of planned arson after calling his bank and making bomb threats. He was acquitted on appeal; thus, the excessiveness of his sentence was never discussed. Also, the defendant in McKeel was sentenced by the trial court to two twenty-year sentences at hard labor. As previously mentioned, the defendant was acquitted of the crimes, and, thus, the excessiveness of his sentences was not discussed.

In Suire, this court concluded that analytically, the crime is virtually the same as aggravated assault which carries a maximum sentence of six months, while aggravated assault with a firearm, the most extreme case of assault, requires a maximum penalty of five years. Considering same, the court held that the eight-year sentence was not warranted. The court also noted that the decree of culpability was very low, that the building contained only a few people, that the defendant presented no means of carrying out his threat nor the intention to implement his threat, and that he had no prior criminal record.

|15In the instant case, the trial court made the following observations in sentencing the Defendant:

All right. The court considers the following in the sentence for Mr. Stevens.
His prior record: Distribution of cocaine, attempted simple robbery, simple robbery, two counts of simple robbery.
The court considers that he is a danger to society as a result of his previous background and what he asserted in this case and what happened in this case with regards to the assault.
The court finds a lesser sentence would deprecate the seriousness of this matter and the seriousness of his past record.
He’s in need of correctional treatment which can be best satisfied by incarceration.
The court finds that he was particularly cruel to the victim involved in this matter in what he told the victim and what he did to the victim.

With regard to the factors discussed in Suire, the trial court noted that the crime was particularly cruel. We note that none of the cases cited by the Defendant involved a direct threat of harm to a person’s child. Unlike the defendant in Suire, in the instant case, the Defendant has an extensive criminal history; however, Defendant’s prior crimes did not involve violence. With regard to sentences imposed for similar crimes by this court and other courts, we note that there have been no reported cases involving sentencing for this crime since Suire.

Considering the facts of the instant case, the fact that the Defendant received less than one-half of the maximum possible sentence, and the Defendant’s prior criminal history, we do not find the Defendant’s sentence to be excessive, as it does not shock one’s sense of justice. Consequently, we affirm the Defendant’s sentence.

| ^CONCLUSION

The Defendant’s conviction and sentence are affirmed. Additionally, we sever the Defendant’s misdemeanor conviction from his appeal and instruct the Defendant that, if he chooses to seek review of his misdemeanor conviction, he must file an application seeking supervisory review with this court within thirty days of this court’s ruling on his appeal. Further, we remand this case to the trial court with instructions that it amend its minutes of the Defendant’s sentencing to correctly reflect the transcript of sentencing.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination, i.e., the suspect subject to custodial interrogation has the right to con-suit with an attorney and to have counsel present during questioning, and the police must explain this right to the suspect before questioning begins.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Terry Howard SMITH, Jr.
    No. 07-1027.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.
    Don M. Burkett, District Attorney, Anna L. Garcie, Assistant District Attorney, Many, LA, for Appellee, State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, Terry Howard Smith, Jr.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

|! Factual and Procedural Background

The defendant, Terry Howard Smith, Jr., allegedly beat his girlfriend, Pamela Leggett (Leggett), with a tribal baseball bat on the side of the road. A witness claimed that when he tried to intervene, the defendant struck him. Following the encounter, the defendant allegedly left the scene in his girlfriend’s vehicle.

The defendant was charged by bill of information as follows:

COUNT #1: AGGRAVATED BATTERY UNDER THE DOMESTIC VIOLENCE ACT, La. RS14:34 & 46:2131-2151
COUNT # 2: UNAUTHORIZED USE OF A MOVABLE, La. RS14-.68
COUNT #3: AGGRAVATED BATTERY, La. RS14:34

Following a bench trial, the defendant was found guilty under count one of second degree battery, a violation of La.R.S. 14:34.1; not guilty on count two; and guilty under count three of simple battery, a violation of La.R.S. 14:35.

For the second degree battery conviction, the trial court sentenced the defendant to three years at hard labor with the Louisiana Department of Corrections, with credit given for time served. The trial court did not impose a sentence for the simple battery conviction. The defendant did not file a motion to reconsider sentence. He now appeals, arguing that the evidence is insufficient to sustain his conviction for second degree battery. For the following reasons, we affirm.

[^Discussion

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 no errors patent.

Sufficiency of the Evidence

In his sole assignment of error, the defendant contends that Leggett did not suffer an injury which would elevate the offense against her person to the level of second degree battery. He argues that because the State failed to prove an essential element of second degree battery, i.e., that Leggett suffered serious bodily injury, his conviction should be vacated and a verdict of simple battery should be entered.

At the outset, we note that the defendant did not object to the responsive verdict of second degree battery after the trial court’s ruling. In State ex rel. Elaire v. Blackburn, 424 So.2d 246, 251-52 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983), the supreme court explained:

The 1982 amendment adding Section C to Article 814 now gives the trial judge discretion, on motion of either side, to exclude a responsive verdict which is not supported by the evidence. Therefore, even if the offense is legislatively designated as responsive by Article 814, the defendant may timely object to an instruction on a responsive verdict on the basis that the evidence does not support that responsive verdict. If the court overrules the objection and the jury returns a verdict of guilty of the responsive offense, the reviewing court must examine the record to determine if the responsive verdict is supported by the evidence and may reverse the conviction if the evidence does not support the verdict.... However, if the defendant does not enter an objection (at a time when the trial judge can correct the error), then the reviewing court may affirm the conviction if the evidence would have supported a conviction of the greater offense, whether or not the evidence supports the conviction of the legislatively responsive offense returned by the jury.
| sIt would be unfair to permit' the defendant to have the advantage of the possibility that a lesser “compromise” verdict will be returned (as opposed to being convicted of the offense charged) and then to raise the complaint for the first time on appeal, that the evidence did not support the responsive verdict to which he failed to object. Therefore, at least when the defendant fails to interpose a timely objection to a legislatively responsive verdict, this court will not reverse the conviction if the jury returns such a verdict, whether or not that verdict is supported by the evidence, as long as the evidence is sufficient to support the offense charged.

(Footnotes omitted). Thus, the pertinent issue in this case is whether the evidence presented at trial supported a conviction for aggravated battery, the offense charged.

“Aggravated battery is a battery committed with a dangerous weapon.” La. R.S. 14:34. Battery is defined as “the intentional use of force or violence upon the person of another.... ” La.R.S. 14:33.

With regard to sufficiency of evidence, this court stated in State v. Touchet, 04-1027, pp. 1-2 (La.App. 3 Cir. 3/9/05), 897 So.2d 900, 902:

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 1367.

RLeggett testified that she and the defendant began dating in 2003 and that they have a son. She stated that during the course of their relationship, the defendant has hit her on several occasions, “like most of the time every day.” Leggett testified that on May 21, 2006, the defendant beat her badly. She recalled that on that day, they went to a nearby town and that they had been drinking. Leggett stated that as she was driving her vehicle, the defendant, who was in the passenger seat, started an argument with her. She described what happened next:

[The defendant] hit me and to keep from hitting a car head on, I swerved off the road to the right and he was hitting me in the car. He got out of the car and came around to the driver’s side, opened the door and he started kicking me and hitting me and I crawled across the seat to the passenger seat trying to get away from him.

According to Leggett, the defendant was hitting her with a green tribal bat which she likened to a “wooden baseball bat.” She asserted that he hit her several times and that he “knocked [her] silly.”

Leggett testified that she “fell out of the car on the passenger side. And when [she] got off the ground, Perry Dees was there on his motorcycle.” She stated that Craig Richardson and his wife subsequently arrived on the scene and Ryan Preston, the driver of the car she avoided hitting, was parked on the other side of the road. According to Leggett, she “started begging them not to leave [her], to call the cops for someone to help [her].” Leggett stated that the Richardsons put her into their car and took her to their house so that she could shower and change clothes. Leggett testified that she was bleeding from her nose and mouth; however, she did not seek any medical attention for her injuries.

Ryan Preston (Preston) testified that on May 21, 2006, he was on his way to his father’s house when he saw someone “hitting someone in the car. As I got closer, I |scould tell there was a girl in the car.” According to Preston, “when he drove up, [the defendant] wasn’t hitting her with anything. He had nothing in his hands. He was gripping the top of his car with his hands, kicking inside with his feet.” Preston testified that he stopped his car and yelled for the defendant to stop. He and the defendant exchanged words. Preston testified that the defendant grabbed something which resembled a stick or a club out of the backseat of his car but later dropped it as he approached Preston’s car. According to Preston, “we had words at the car. I had my window rolled down. And he said he wasn’t gonna hit me if I stayed in the car so I said, okay, I’m not gonna get out and then he struck the top of my car ... [with] his hand.”

The record indicates that Preston gave a statement to authorities later that day describing what he had witnessed. In his statement, which was introduced into evidence, Preston stated that after he told the defendant to stop beating Leggett, the defendant replied:

“F — k you” and started running for my car with a baseball bat in one hand. He told me “he wasn’t going to hit a b — h sitting in the car.” He swung my door open and hollered for me to get out. I made a movement to close my door and he swung at me multiple times only connecting once. After he hit me he was hollering “don’t f — k with me I’ll kill you!” I drove by in my car and said “now you can answer to the cops.” He was steadily hollering at the woman he was beating using harsh statements] such as F — k you and I’ll kill you!

Preston stated that sometime later, Perry Dees, arrived at the scene and told the defendant to leave, which he did after telling Leggett to get out of the car. Preston noticed that Leggett had “a bruise or two” on her face, but he could not tell if she was bleeding.

Perry Dees (Dees) testified that when he was riding his motorcycle that day, he observed that the defendant had been fighting with Leggett and Preston. Dees stated | fithat he saw the defendant and Leggett arguing, and he noticed that Preston was bleeding in the area of his eye. According to Dees, the defendant had a “ball bat” in his hand and when he drove up, the defendant “held the bat out at me and told me go ahead and get off that bike[.]” Dees testified that he talked to Preston and convinced him to go home. Subsequently, the defendant went to his car, threw the bat through the window, and drove off. Dees testified that Leggett was sitting in the Richardson’s car when the defendant left. He described her as looking “kind of red and [swollen] up a little bit in the head and face.”

John Brock, Chief of Police for the Village of Converse, testified that he received a call on May 21, 2006 about a disturbance at the intersection of Highway 174 and Highway 171. When he arrived at the scene, Leggett was not there as she had accompanied the Richardsons to their home to clean herself up. She later returned to the scene. According to Chief Brock, Leggett “had black eyes, nose was messed up, blood in her nose, blood in one ear, blood on her clothes, bruises on her leg that she showed me in city hall when she came to do a statement.”

At trial, the defendant characterized his relationship with Leggett as “rocky.” He stated that on the date in question, he had been driving the car and was “yelling into the car at [Leggett] when [Preston] pulled up.” Although he does not remember kicking Leggett, the defendant admitted to “smacking her.” However, he alleged that Leggett was also hitting and scratching him.

The defendant stated that when Preston stopped, they exchanged words, and he started swinging at Preston. When Preston grabbed a stick from the compartment of his vehicle, the defendant repeatedly told Leggett to give him the bat, but she did not. The defendant testified that, “I went around to the passenger side, opened the |7door, grabbed the bat, pointed it at [Preston] and told him to put your stick away. At that time, that’s when Perry Dees and the others had pulled up.” The defendant maintained that “I still had the bat in my hand when Perry Dees told me to get the hell in my car and leave[.]” According to the defendant, when he reentered the car, Leggett jumped out of the car and claimed that he had hit her. When she refused his instructions to get in the car, he left.

Given the testimony, we find that the trial court could have found the defendant guilty of aggravated battery. Witnesses testified that the defendant had a bat in his possession at one point or another during the incident. Although there was conflicting testimony as to whether the defendant actually struck Leggett with the bat, the trial court apparently found Leggett credible and accepted as true her testimony that the defendant hit her with the bat. Finding the evidence sufficient to support the offense charged, the evidence will support conviction of the responsive verdict of second degree battery. Elaire, 424 So.2d 246.

Accordingly, this assignment has no merit.

DECREE

For the foregoing reasons, the defendant’s conviction is affirmed.

AFFIRMED.

      . The defendant has not appealed his conviction for simple battery. Moreover, an appeal does not lie from this conviction because it is a misdemeanor. La.Code Crim.P. art. 912.1(B)(1).


text:
    Bernice P. FONTENOT, Jr. and Myra K. Fontenot v. SOUTHERN ENERGY HOMES, INC.
    No. 07-1114.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      Lamont P. Domingue, Lafayette, LA, for Defendant/Appellant, Southern Energy Homes, Inc.
    Barry L. Domingue, Lafayette, LA, for Plaintiffs/Appellees, Bernice P. Fontenot, Jr. and Myra K. Fontenot.
    Court composed of BILLY H. EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 Defendant, Southern Energy Homes, Inc. (Southern), appeals the trial court’s denial of its dilatory exception of prematurity which sought to compel arbitration prior to proceeding with the lawsuit filed by Plaintiffs, Bernice P. Fontenot, Jr. and Myra K. Fontenot (the Fontenots). For the following reasons, we reverse the trial court’s judgment and render judgment sustaining Southern’s exception.

FACTS

This litigation involves a manufactured home constructed by Southern and sold by Bayou Housing, Inc. to the Fontenots in 1998. On June 17, 2003, the Fontenots filed a Petition to Rescind Sale and for Damages against Southern in the Fifteenth Judicial District Court in Acadia Parish. In their petition, the Fontenots alleged that Southern was liable to them for negligent construction, breach of contract, and failure to warn them of certain defects. The Fontenots asserted that they were entitled to a recision of the sale with a return of the purchase price, reimbursement of expenses associated with the sale, attorney fees, and damages for personal injury.

On July 24, 2003, Southern filed a notice of removal to the United States District Court for the Western District of Louisiana. However, pursuant to the admission by the Fontenots that the amount in controversy did not exceed $75,000.00, Southern filed a Motion to Remand. On August 21, 2003, finding that no basis for federal jurisdiction existed in the case, the matter was remanded to the state district court in Acadia Parish.

Thereafter, in response to the Fonte-nots’ petition, Southern filed a dilatory exception of prematurity, alleging that the Fontenots purchased their home pursuant 12to an agreement that mandates arbitration of their claims against Southern. Following a hearing in March of 2007 on Southern’s exception of prematurity, the trial court rendered judgment in favor of the Fontenots denying Southern’s exception based upon the holding of Abshire v. Belmont Homes, Inc., 04-200 (La.App. 3 Cir. 3/2/05), 896 So.2d 277, writ denied, 05-862 (La.6/3/05), 903 So.2d 458. Southern timely perfected this devolutive appeal.

ISSUE

The issue before us is whether the trial court erred as a matter of law in denying Southern’s exception of prematurity which sought to require that the Fontenots’ claims be submitted to binding arbitration.

STANDARD OF REVIEW

“Whether a court should compel arbitration is a question of law, and our appellate review of a question of law is simply to determine whether the trial court was legally correct or incorrect.” Easterling v. Royal Manufactured Housing, L.L.C., 07-192, p. 5 (La.App. 3 Cir. 6/6/07), 963 So.2d 399, 402 (citing Rico v. Cappaert Manufactured Housing, Inc., 05-141 (La.App. 3 Cir. 6/1/05), 903 So.2d 1284).

DISCUSSION

The evidence reveals that on March 31, 1998, the Fontenots signed a purchase agreement with Bayou Housing, Inc. The front of the purchase agreement contains the following provision: “You and I certify that the, additional terms and conditions printed on the other side of this contract are agreed to as a part of this agreement, the same as if printed above the signatures.” The back of the purchase agreement |3provides, in relevant part:

1. IF NOT A CASH TRANSACTION. If I do not complete the purchase as a cash transaction, I know before or at the time of delivery of the unit purchased, I will enter into a retail installment contract and sign a security agreement or other agreement as may be required-to finance my purchase.

On April 27, 1998, the Fontenots signed a second purchase agreement, a document entitled “Consumer Insulation Information,” a Bill of Sale, a document entitled “Manufactured Home- Retail Installment Contract and Security Agreement,” and a “BINDING ARBITRATION AGREEMENT” which states, in pertinent part:

All disputes not barred by applicable statutes of limitation or otherwise barred by law, resulting from or arising out of the design, manufacture, warranty or repair of the ■ manufactured home, (including but not limited to: the terms of the warranty, the terms of this arbitration agreement and all clauses herein contained, their breadth and scope, and any term of any agreement contemporaneously entered into by the parties concerning any goods or services manufactured or provided by Southern Energy Homes, Inc.; the condition of the manufactured home; the conformity of the manufactured home to federal building standards; the representations, promises, undertakings, warranties or covenants made by Southern Energy Homes, Inc., (if any); or otherwise dealing with the manufactured home); will be submitted to BINDING ARBITRATION, pursuant to the provisions of 9 U.S.C. section 1, [et seq.] and according to the Commercial Rules of the American Arbitration Association then existing in Addison, Alabama, where Southern Energy Homes, Inc., maintains its principal place of business.... THIS ARBITRATION SHALL BE IN LIEU OF ANY CIVIL LITIGATION IN ANY COURT, AND IN LIEU OF ANY TRIAL BY JURY.

The basis for Southern’s dilatory exception of prematurity is found in the provisions of these documents. According to the Fontenots, the trial court correctly found the facts of this case, and the evidence therein, analogous to Abshire, 896 So.2d 277, and that its ruling was legally correct. We disagree. •

^Louisiana Revised Statutes 9:4201 provides:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall-be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

Louisiana Code of Civil Procedure Article 926(A)(1) provides for the objection of prematurity to be raised by dilatory exception. The function of this exception is to raise the issue that a judicial cause of action does not yet exist because of some unmet prerequisite condition. Hardee v. Atlantic Richfield, 05-1207 (La.App. 3 Cir. 4/5/06), 926 So.2d 736.

When a dilatory exception is tried, “evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La.Code Civ.P. art. 930. The defendant pleading the exception of prematurity has the burden of establishing that the action is premature. Cook v. AAA Worldwide Travel Agency, 360 So.2d 839 (La.1978).

Id. at 739.

“The party filing the dilatory exception of prematurity, based on the existence of an agreement to arbitrate, has the burden of establishing that a valid and enforceable agreement exists.” St. Romain v. Cappaert Manufactured Housing, Inc., 05-140, pp. 3-4 (La.App. 3 Cir. 6/1/05), 903 So.2d 1186, 1189.

In this case, unlike St. Romain, there is no evidence that arbitration was not discussed with the Fontenots on the date, or dates, on which they signed the relevant documents, i.e., the handwritten purchase agreement, the security agreement, and the typewritten purchase agreement.

In Abshire, 896 So.2d 277, the plaintiffs actually signed the arbitration agreement at issue in connection with their purchase of a mobile home. However, we concluded that the plaintiffs did not need |sto sign the arbitration agreement in order to take delivery of their mobile home either per the purchase agreement or per the delivery agreement, both of which documents had been executed by the retailer and the plaintiffs, and not by the manufacturer. Additionally, there was no evidence in Ab-shire that the arbitration agreement formed part of the consideration for the original purchase agreement. In any event, we held that the manufacturer, who was not a party to the purchase agreement, could not unilaterally assign additional consideration for the perfection of the sale. We also observed that the provision of a warranty by the manufacturer was not shown to constitute cause or consideration for the arbitration agreement because La.R.S. 51:911.25 provides mandatory warranty rights in connection with manufactured homes, rights which a purchaser may not waive. We found that the manufacturer had failed to show that its warranty provided greater rights to the plaintiffs than those provided in La.R.S. 51:911.25. Thus, we affirmed the judgment of the trial court rejecting enforcement of the arbitration agreement.

Id. at 1190-91.

In the instant case, the record is void of evidence that the Fontenots did not consent to the terms of the aforementioned documents which contained binding arbitration language. Without evidence, particularly testimonial evidence, that either the arbitration agreement at issue did not form part of the consideration for the purchase agreement or that the Fontenots’ consent was vitiated by some form of error, i.e., that they believed their signatures were required to ensure the delivery of their manufactured home, the Abshire case is clearly distinguishable and inapplicable, and the trial court’s ruling cannot be sustained. Therefore, we find that the trial court was not legally correct in ruling that Southern failed to meet its burden of proving that the Fontenots’ claims were premature pursuant to an agreement that mandated arbitration of their claims against Southern.

DECREE

For the above reasons, the trial court’s judgment overruling Southern’s dilatory exception of prematurity is reversed. Southern’s exception is hereby sustained. Costs Ifipf this appeal are assessed to Plaintiffs-Appellees, Bernice P. Fontenot, Jr. and Myra K. Fontenot.

REVERSED.

      . Bayou Housing, Inc. is not a defendant herein.

      . There were no reasons for judgment.

      . This purchase agreement is handwritten.

      . The contractual language in this purchase agreement is identical to the March 31, 1998 agreement; however, this purchase agreement is typewritten.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Kimberly SAMPY.
    No. 07-1059.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      Michael Harson, District Attorney, Keith A. Stutes, Asst. District Attorney, Lafayette, LA, for Plaintiff/Appellee State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant Kimberly Sampy.
    Kimberly Sampy, La. Corr. Institute for Women, St. Gabriel, LA, In Proper Person Kimberly Sampy.
    Court composed of ULYSSES- GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

hln this case, the defendant, Kimberly Sampy, was convicted by a jury of one count of attempted second degree murder of Crystal Kessler, a violation of La.R.S. 14:27 and 14:30.1, and one count of attempted manslaughter of Brian Sampy, a violation of La.R.S. 14:27 and 14:31. She was sentenced to thirty years at hard labor without the benefit of probation, parole, or suspension of sentence on the conviction for attempted second degree murder and ten years at hard labor on the conviction for attempted manslaughter, to be served concurrently with the thirty-year sentence. Defendant filed a motion to reconsider the sentence of thirty years which was denied by the trial court. She has now appealed claiming that her sentence of thirty years is constitutionally excessive. For the following reasons, we affirm the sentence of the trial court with instructions.

FACTS

On the date of the shooting, Defendant drove from her home in Jacksonville, Florida, to Lafayette, Louisiana. While there was some conflict as to why she made the trip, it is clear that she and her husband, Brian, had talked on the telephone a day or two before the shooting. Brian was living in Lafayette with Crystal at the time at the French Colony Apartments. It is also of note that both Defendant and Crystal were pregnant by Brian at the time. Defendant’s and Brian’s four-month-old daughter had died of Sudden Infant Death Syndrome a few weeks prior to the shooting. ' Upon arriving in Lafayette, Defendant drove to The Gentleman’s Club where Kessler worked as the bartender manager, Crystal and Brian were at the club, but Defendant did not speak with them because the club was closing |aand the police were not allowing anyone to enter. Defendant drove to the French Colony apartment building and remained in -her car. When Brian and Crystal arrived at the apartment, he parked his vehicle behind Defendant’s vehicle, blocking her in. The parties’ stories differ somewhat at this point but it is clear that Brian called the police at some point and had an argument with Defendant. Crystal remained seated in the passenger.side of the car and took no part in the argument. Defendant eventually pulled out a gun and fired several shots, one striking Brian in the back of the head as he was fleeing and one striking Kessler in the face and another striking her in the neck as she was sitting in the car. Both Brian and Crystal survived the gunshot wounds.

EXCESSIVE SENTENCE

In her sole assignment of error, Defendant contends that her thirty-year sentence is excessive under the circumstances of the case. Although Defendant was originally charged with attempted first degree murder, the jury found her guilty of the attempted second degree murder of Crystal. Second degree murder carries a punishment of life imprisonment. However, under La.R.S. 14:27, an attempt to commit an offense that is punishable by life imprisonment carries a range of imprisonment of not less then ten years nor more than fifty years at hard labor. Accordingly, defendant received a midrange sentence.

At the sentencing hearing, the trial court noted it had reviewed the presen-tence investigation report. According to the report, Defendant had no prior criminal history. The report recommended a maximum sentence on each count to be served consecutively. However, the trial court stated that it was taking into ^consideration mitigating and aggravating factors. The trial court noted Defendant’s lack of a criminal history and her remorse, the fact that she had successfully completed various anger management programs while she was incarcerated, her good behavior while incarcerated, her youth, and the support of her family. As for the aggravating factors, the trial court noted that the victims both suffered severe physical and emotional injuries, particularly Brian who received a serious head injury from which he may never completely recover. Moreover, Crystal was shot in the face while she was sitting in the car. Both victims could have easily died. Finally, the trial court noted that there were indications at trial that the acts were premeditated.

Defense counsel as well as Defendant (pro se) filed a motion to reconsider the sentence. Defense counsel’s motion argued an excessive aggregate sentence. However, the motion was based on an incorrect assumption that the sentences were ordered to be served consecutively for a total of forty years imprisonment. Defendant’s pro se motion raised the issue of excessive sentence under the circumstances of her case, arguing that she was remorseful for her actions, that she had no prior criminal history, and that she has a two-year-old child who needs her mother.

At the' sentencing hearing, which was not attended by Defendant, defense counsel only corrected his misconception about the sentence and mentioned to the trial court that he objected to the sentence. The trial court denied the motions to reconsider the sentence. .

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-0838 (La.2/1/02), 808 So.2d 331 (alteration in original), this court 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, 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).

Moreover, in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-0562 (La.5/30/03), 845 So.2d 1061, this court held that in order to decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, the following factors may be considered:

[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.

|BIn mitigation, Defendant points out that she has no prior criminal record. She claims she was distraught because her husband of five years had left her pregnant and coping with the death of their daughter. She also says that she knew her husband was having an affair with Crystal Kessler. She argues that the trial court placed more weight on the victim impact statement and much less weight on the mitigating factors. Finally, she argues that the sentence of thirty years without the benefit of parole is nothing more than a cruel and unusual punishment.

However, we note that the imposition of a thirty-year sentence is not an uncommon sentence for the offense of attempted second degree murder under similar circumstances as the current case. In State v. McCoy, 34,835 (La.App. 2 Cir. 6/20/01), 792 So.2d 806, writ denied, 01-2186 (La.6/21/02), 818 So.2d 790, the second circuit affirmed a forty-year sentence imposed on the defendant who was convicted of attempted second degree murder despite the fact that he did not have a criminal history. In that case, the defendant had stalked a former girlfriend and laid in wait for her before shooting her four times. In State v. Ethridge, 96-1050 (La. App. 3 Cir. 2/5/97), 688 So.2d 1274, we affirmed a sentence of forty-five years for attempted second degree murder even though Ethridge had no prior criminal record. The defendant 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), Owens alleged his thirty-year sentence for attempted second degree murder was excessive because he was only twenty-five and had no prior criminal history. Owens had fired several shots at the victim in a crowded barroom. Our colleagues on the second circuit affirmed.

| fiWe are cognizant of Defendant’s situation. She was blocked in a parking spot by her husband who brought his pregnant girlfriend to confront her, his pregnant wife: She was at least threatened by her husband in that the police were on the way and she would go to jail. Certainly, she was under a significant amount of stress as she had just lost her' young daughter and was apparently going to have to fend for herself and her next child as her husband had abandoned her for the woman he brought to the apartment building parking lot.

The trial court obviously took those factors into consideration when sentencing her in regard to the shooting of Brian, as she received only a ten-year sentence for that crime. But the facts surrounding the shooting of Crystal are quite different. First, Defendant armed herself even though Brian was not armed and Crystal presented no threat. By all accounts, Crystal was simply sitting on the passenger side of the car and did not confront Defendant in any manner. She was shot twice, both times in or near the face. In that regard, we find that the sentence is not such that shocks our sense of justice, it makes a measurable contribution to acceptable penal goals, and is not a needless imposition of pain and suffering. Accordingly, we find that while we believe that the sentence is on the high side, we cannot say that the trial court abused its discretion when it imposed a thirty-year sentence .for the; attempted second degree murder of Crystal Kessler. This assignment of error is without merit.

ERRORS PATENT

We review all appeals for errors patent on the face of the record in accordance with La.Code Crim.P. art. 920. After reviewing the record, we find that 17there is one error patent. The record does not indicate that the trial court advised Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, we direct the trial court to inform Defendant of the provisions of Article 930.8 by sending appropriate written notice to her within ten days of the rendition of this opinion and to file written proof that she 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.

CONCLUSION

Defendant’s sentence of thirty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence for the crime of attempted second degree murder of Crystal Kessler is affirmed. Further, the trial court is directed to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to her within ten days of the rendition of this opinion and to file written proof that she received the notice in the record óf the proceedings.

AFFIRMED WITH INSTRUCTIONS.


author: PAINTER, Judge. GENOVESE, J.,

text:
    OCCIDENTAL LIFE INSURANCE COMPANY OF NORTH AMERICA v. Ruby BENOIT and Deaundra L. Francis.
    No. 07-1164.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      Lloyd Dangerfield, Lafayette, LA, for Defendant-Appellant Ruby Benoit.
    Stan Gauthier, II, Kristi Husher Oubre, Jonathan D. Mayeaux, Stan Gauthier, II, A Law Corporation, Lafayette, LA, for Defendant-Appellant Deaundra L. Francis.
    Greg R. Mier, Onebane Law Firm, Lafayette, LA, for Plaintiff-Appellee Occidental Life Insurance Company of North America.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE.
   PAINTER, Judge.

|, Occidental Life Insurance Company of North America (Occidental) instituted this concursus proceeding by depositing the proceeds of a certain life insurance policy into the registry of the court and made Ruby Benoit (Benoit) and Deaundra L. Francis (Francis), both of whom claim to be the sole beneficiary of the policy, defendants. Francis filed a reconventional demand seeking to reform the policy to name her beneficiary or, in the alternative, seeking damages for negligence on the part of Occidental. The trial court reformed the policy to name Francis as beneficiary, dismissed the reconventional demand, and ordered that the balance of the funds in the registry of the court, plus accrued interest but less court costs, be páid to Francis and her attorney after all appellate delays had run. Benoit and Francis now appeal. For the reasons that follow, we affirm the judgment of trial court in all respects.

FACTUAL AND PROCEDURAL BACKGROUND

In 1985, Debra Francis purchased an insurance policy from Occidental to insure the life of her daughter, Deaundra Francis. The policy was numbered 230568313M (the M policy) and designated Debra as beneficiary. In 1987, Debra purchased another insurance policy from Occidental to insure her own life: This policy was numbered 230627324H (the H policy) and is the policy now at issue. The H policy designated Benoit, Debra’s mother, as beneficiary. On December 11, 2003, Debra executed a written change of beneficiary form to change the designated beneficiary to her daughter. She referenced the M policy but listed herself as the insured. However, in fact, Debra was the insured under the H policy, and Francis was the insured under the M policy.

Debra died from recurring metastatic breast cancer on April 9, 2004. Benoit then submitted a “Proofs of Death-Claimant’s Statement” to Occidental seeking the ^benefits from the H policy. Francis also submitted a “Proofs of Death-Claimant’s Statement” claiming that she alone was entitled to the benefits from the H policy because of a'mistake made by her mother in changing the beneficiary on the M policy rather than on the H policy. When attempts to resolve the dispute were unsuccessful, Occidental deposited approximately $70,000.00, the benefits due under the H policy, into the registry of the court pursuant to La.Code Civ.P. art. 4658 and filed a concursus proceeding citing both Benoit and Francis as claimants. Benoit filed an answer alleging that she alone was entitled to the proceeds of the. H policy. Francis filed a similar answer but also asserted, in the alternative, that if Benoit was entitled to the proceeds, Occidental should pay the full amount to each concur-sus defendant because of Occidental’s alleged mishandling of a change of beneficiary form.

The trial court found that Occidental was not negligent in its handling of the change of beneficiary form but reformed the H policy to name Francis as the beneficiary pursuant to the change of beneficiary form submitted by Debra. Accordingly, the trial court ordered that the balance of the funds placed into the registry of the court, plus accrued interest but minus court costs, be paid to Francis and her attorney after the expiration of all appellate delays. Benoit now appeals. Francis also appeals, arguing that the judgment should be affirmed; however, Francis claims that if the judgment is reversed based on a finding that the trial court erred in reforming the policy, then in that event, she claims that Occidental negligently handled the change of beneficiary transaction such that she is entitled to judgment on her reconventional demand against Occidental in the amount of the policy proceeds. For the following reasons, we affirm the judgment of the trial court in its entirety.

| .DISCUSSION

We first consider whether the trial court was correct in reforming the policy. We review the trial court’s findings of fact in that regard under the manifest error standard of review.

The trial court found that the change of beneficiary form was ambiguous because it shows the M policy number but lists Debra as the insured when clearly she was not the insured under that policy. We agree.

In determining the beneficiary of a life insurance policy, it is necessary to ascertain the intention of the deceased. In this regard, the courts are bound to give legal effect to all contracts and their terms, including insurance policies, according to the true intent of the parties, and the intent is to be determined by the words of the contract when they are clear and explicit and lead to no absurd consequences. Joseph v. Joseph, 537 So.2d 863 (La.App. 5 Cir.1989); Baker v. Life General Security Insurance Company, 405 So.2d 1162 (La.App. 1 Cir.1981).
When the agreement is unclear, ambiguous, or will lead to absurd consequences, the court should go beyond the written agreement to gather the true intention. Dixie Campers, Inc. v. Vesely Company, 398 So.2d 1087 (La.1981); Joseph v. Joseph, supra; Baker v. Life General Security Insurance Company, supra; Bohm v. CIT Financial Services, Inc., 348 So.2d 132 (La.App. 1 Cir.1977), writ denied, 350 So.2d 673 (La.1977); Louisiana Sav. Ass’n, Inc. v. Bluebonnet Holding Partnership, 546 So.2d 869 (La.App. 1 Cir.1989).

Commercial Life Ins. Co. v. Robinson, 95-186, pp. 5-6 (La.App. 5 Cir. 7/25/95), 662 So.2d 486, 488-89.

The trial court heard testimony from both Benoit and Francis, examined Debra’s last will and testament and numerous other insurance documents, and also received the deposition of Debra’s friend, Lisa Holmes. From these documents, it is clear that Debra made several conscientious decisions regarding both the H and M policies as well as other policies she held after she received her diagnosis of terminal cancer, including making cash withdrawals from both the H and M policies. It is also clear that Debra, in the months before her death, was primarily interested in settling 14her financial affairs and providing for the well-being of her daughter and grandchildren. Her will, executed on November 25, 2003, left the entirety of her estate to her daughter and grandchildren and set up a trust for the grandchildren. Further, we note that it would be nonsensical to make Francis the beneficiary of a policy on her own life and that there was no need to change the beneficiary on the M policy since Francis would have become the owner of that policy upon her mother’s death and would have been able to change the beneficiary herself. Thus, we find no manifest error in the trial court’s decision. Having so found, we need not reach Francis’ alternative arguments concerning the dismissal of her reconventional demand.

Finally, we find that Benoit’s argument that the trial court erred in assessing the court costs against the funds on deposit to be without merit. Louisiana Code of Civil Procedure Article 4659 provides, in pertinent part, as follows:

When money has been deposited into the registry of the court by the plaintiff, neither he nor any other party shall be required to pay any of the costs of the proceeding as they accrue, but these shall be deducted from the money on deposit.

As the provisions of this article mandate the deduction of the costs from the money on deposit, we find no error in the trial court’s assessment of the costs against the funds on deposit rather than against either Occidental or Francis.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court in its entirety. All costs of this appeal are assessed to Appellant, Ruby Benoit.

AFFIRMED.

GENOVESE, J., dissents in part, concurs in part, and assigns written reasons.

GENOVESE, J.,

concurs in part, dissents in part, and assigns the following reasons:

Li concur with the affirmation of the trial court’s assessment of costs; however, I dissent from the majority in its affirmation of the trial court’s change of beneficiary designation.

There was nothing in the record to support the trial court’s “reformation” of the insurance contract. There was no ambiguity. The decedent was an educated, retired military woman with twenty-four years of military service who had engaged in several insurance transactions with Occidental Life just prior to her death and had confected a last will and testament less than five months prior to her death. She had terminal cancer and was aware of her impending death. She had strategically gotten her affairs in order just prior to her death. On her own volition, she knowingly executed a change of beneficiary on the appropriate insurance forms on one of her life insurance policies which was designated by her as the “M” policy.

The trial court found ambiguity in the transaction, reformed the insurance contract, and on its own changed the policy designation from the “M” policy to the “H” policy, ignoring the signed declaration of the decedent. The end result is that the trial court unilaterally changed the decedent’s designation of beneficiary.

12In effect, the trial court and the majority of this court have superimposed what they think was the intent of the decedent in changing the beneficiary designation on one of her life insurance policies. There was no rational basis of fact in the record to support such action. This sets a bad precedent and opens Pandora’s box. In the future, a trial court will be able to delve into the intent of a decedent in his or her change of beneficiary designation. This invites litigation by the living over the intent of the dead and invades the sanctity of the decedent’s beneficiary designation when he or she will no longer be around to defend same. That leads to absurd consequences. In my opinion, the trial court was manifestly erroneous and clearly and legally wrong in changing the decedent’s beneficiary designation on her life insurance policy against the written declaration of the decedent without legal grounds therefor. I would reverse the trial court and uphold the decedent’s beneficiary designation on her life insurance policy.


author: THOMAS F. DALEY, Judge.

text:
    In re Medical Review Panel Proceeding of Janet CARTER v. OCHSNER CLINIC FOUNDATION and Jamie Lynn Ross, M.D.
    No. 07-CA-889.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 11, 2008.
    Rehearing Denied April 7, 2008.

      A.M..“Tony” Clayton, Michael P. Fruge, Clayton and Fruge, Port Allen, Louisiana, for Plaintiff/Appellant.
    Don S. McKinney, Shelly F. Spansel, Adams and Reese, LLP, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and CLARENCE E. McMANUS.
   THOMAS F. DALEY, Judge.

| ¡.The plaintiff, Janet Carter, has appealed the trial court’s grant of defendants’ Exception of Prescription in this medical malpractice proceeding. For the reasons that follow, we affirm.

PROCEDURAL HISTORY:

On February 15, 2007, the defendants, Ochsner Clinic Foundation and Jamie Lynn Ross, M.D., filed a petition stating that they had been named in a medical malpractice complaint filed with the Louisiana Division of Administration pursuant to LSA-R.S. 40:1299.41, et seq. This complaint was filed by Janet Carter. On that same date, the defendants filed an Exception of Prescription accompanied by a Memorandum in Support of this Exception. The memorandum states that plaintiff submitted a complaint of medical malpractice to the Division of Administration by letter dated April 17, 2006 and received by the Division of Administration on May 15, 2006. The memorandum states that the complaint alleged that Rosalyn Carter died on July 14, 2005 due to Dr. Ross’ negligence in | ¡¡placing a catheter during dialysis. The memorandum states a supplemental complaint was submitted to the Division of Administration by letter dated May 22, 2006. These complaints were forwarded to the Patient’s Compensation Fund Oversight Board (hereinafter referred to as the PCF).

According to the memorandum, a letter' dated May 23, 2006 was sent from the PCF to plaintiffs attorney acknowledging receipt of the complaints and informing the attorney that a filing fee of $100.00 per qualified defendants was due within 45 days from the date of this notice as per LSA-R.S. 40:1299.47 A(l)(c). The memorandum states that the letter went on to inform the plaintiffs attorney that the fee may be waived by an affidavit from a physician or a forma pauperis ruling and failure to comply would result in the complaints being invalid and without effect and would not suspend the time within which suit must be instituted. According to the memorandum, plaintiff did not submit anything in response to the PCF letter and on September 5, 2006, the PCF sent plaintiffs attorney another letter stating that the request for a medical review panel was invalid and without effect and would no longer be considered filed.

According to the memorandum, plaintiffs attorney lodged a subsequent complaint with the Division of Administration by letter dated September 20, 2006 and forwarded a check for $200.00. The memorandum states the PCF responded with a letter acknowledging receipt of the complaint and check and directed the attorney to continue the panel process.

In the memorandum, defendants argue the plaintiffs claim is prescribed because the complaint filed by letter dated April 17, 2006 and May 22, 2006 were without effect due to plaintiffs failure to pay the fee, submit an affidavit from a physician, or submit a forma pauperis ruling. Defendants contend the complaint filed by letter dated September 20, 2006 was more than one year from the date of |4death and thus has prescribed. The letters to and from the plaintiffs attorney and the PCF were attached to the memorandum.

On March 16, 2007, plaintiff filed an Opposition to the Exception of Prescription arguing that prescription did not begin to run from the date of death because plaintiff did not have knowledge of facts to suggest that the death was the result of improper treatment. Plaintiff states that she received a report on March 7, 2006 analyzing the treatment rendered and suggesting that defendant’s actions constituted malpractice. Plaintiff contends that the complaint filed September 20, 2006 is within one year of her discovery of the cause of action and thus was timely filed.

On June 20, 2007, plaintiff filed a Supplemental Memorandum in Opposition to the Exception of Prescription. In this memorandum, plaintiff argues that the April 17, 2006 complaint was valid because the statute is silent as to the time period for when the ruling on the forma pauperis proceeding must occur. Plaintiff reasons that because the trial court signed an order on September 26, 2006 allowing plaintiff to proceed in forma pauperis, no fee was required to be paid when she filed her complaint and thus the April 17, 2006 complaint is valid.

In the alternative, plaintiff argues that defendants have the burden of proving prescription and since defendants have no evidence to show when plaintiff discovered defendants’ negligence the September 20, 2006 complaint was timely filed based on plaintiffs contention that the negligence was not discovered until receipt of the March 7, 2006 report.

Plaintiff submits another alternative argument that prescription was suspended from the date of filing the first complaint, April 17, 2006, and the date of death, July 14, 2005, allowing plaintiff an additional three months to file a |Rcomplaint. Thus, plaintiff reasons that the September 20, 2006 complaint was timely filed.

Defendants filed a reply memorandum refuting these additional arguments. Defendants contend that since the April 17, 2006 complaint was without effect, and the September 20, 2006 complaint is prescribed on its face, the burden shifts to plaintiff to prove the matter is not prescribed. Defendants contend that plaintiffs statement that the negligence was not discovered until March 7, 2006 is not sufficient to prove the matter has not prescribed.

Defendants’ motion came for hearing on August 8, 2007. At the conclusion of the hearing, the trial court granted the defendants’ exception.

LAW AND DISCUSSION:

LSA-R.S. 9:5628 controls the prescriptive period for medical malpractice actions stating that an action for damages against a health care provider must be brought within one year of the date of discovery of the alleged act and in any event within three years of the date of the alleged negligent act. In a medical malpractice action, the health care provider can assert an Exception of Prescription at any time without regard to whether the medical review panel process is complete. LSA-R.S. 40:1299.47 A(2)(a). Given this procedural posture, the party ásserting a suspension or interruption of prescription bears the burden of proof. See, In re Medical Review Panel Claim of Moses, 002-2543, p. 6, (La.5/25/01), 788 So.2d 1173, 1177.

At the hearing on this matter, plaintiffs counsel acknowledged the required fee was not forwarded to the PCF within 45 days of the PCF letter stating the fee was due; however, he argued this was not fatal to the claim filed in the letter of April 17, 2006. Plaintiffs counsel argued the statute does not state when the | ^ruling on the forma pauperis must be filed and that the forma pauperis ruling filed with the PCF on September 20, 2006 was sufficient to exempt plaintiff from paying the required fee. Defendants argued the time period for submitting the forma pauperis ruling is 45 days from the date of the mailing of the confirmation of the receipt of the request.

We agree with defendants’.-position. LSA-R.S. 1299.47 A(l)(e) states that failure to comply with the provisions requiring either the fee, an affidavit from a physician, or a forma pauperis ruling “within the specified time frame”, which is listed as 45 days in subsection (c), renders the initial request for review of a malpractice claim invalid and without effect. Igwike v. Memorial Medical Center, 2006-0167 (La.App. 4th Cir.5/23/07), 959 So.2d 562.

In the alternative, plaintiffs counsel argued the September 20, 2006 complaint was timely based on the malpractice being discovered on March 7, 2006. He explained that the procedure at his law firm is to hire a physician to review a Ghent’s possible medical malpractice claim. In plaintiffs case, they waited until they received the report from the reviewing physician to file this claim. He contends the report received on March 7, 2006 is the date the plaintiff discovered there was malpractice; therefore, prescription began to run on that date.

We disagree with that argument. In a malpractice case in which the victim of the alleged malpractice dies, the damage resulting from the alleged malpractice is readily apparent. Thus, in a malpractice action for wrongful death, the prescriptive period begins running on the date of the malpractice victim’s death since that is the date the claimants are injured. Ford v. Rapides Healthcare System, L.L.C., 2006-1539 (La.App. 3 Cir. 5/2/07), 957 So.2d 258, writ denied 2007-1533 (La.10/12/07), 965 So.2d 403. In the case at bar, plaintiff argues it was prudent to wait for the report of a physician to determine whether malpractice had occurred |7and thus prescription did not begin to run until the receipt of that report suggesting there was malpractice. A claimant is not required to be informed by a medical practitioner or an attorney of possible medical malpractice before the prescriptive period begins to run. Abbott v. Louisiana State University Medical Center-Shreveport, 35,693 (La.App. 2 Cir. 2/27/02), 811 So.2d 1107, writ denied, 2002-0952 (La.5/31/02), 817 So.2d 104. In the case at bar, the plaintiff does not dispute that her mother died on the date a catheter was improperly placed by Dr. Ross, causing her to bleed into her thoracic cavity. Plaintiff does not argue that the defendants took some action to mislead or cover up information that would have prevented her discovering her mother’s death was the result of improper treatment. Her argument that the prescription ran from the date of receipt of the report from the physician who reviewed the medical records is without merit.

On appeal, plaintiff argues the trial court erred in granting an Exception of Prescription because the defendants failed to introduce any evidence. Documents not offered into evidence cannot be considered on appeal even though they may be physically present in the record on appeal. Ray Brandt Nissan, Inc. v. Gurvich, 98-634 (La.App. 5 Cir. 1/26/99), 726 So.2d 474. However, when evidence is introduced at the hearing on the peremptory exception of prescription, the appellate court reviews the district court’s ruling under the manifest error standard of review. Ford v. Rapides Heathcare System, L.L.C., supra. Plaintiff introduced a supplemental complaint and a forma pau-peris order into the record during the hearing on the exception.

In a wrongful death action, prescription begins to run from the date of death. Plaintiff has not provided the court with evidence that the defendant covered up information or in any way prevented her from discovering the cause of death. Plaintiff presented no evidence to support a suspension or interruption of the one lRyear prescriptive period that began on the date of death. Thus, we find no abuse of discretion in the trial court’s grant of defendant’s Exception of Prescription.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: SUSAN M. CHEHARDY, Judge.

text:
    Geoffrey HUGHES v. ENERGY & MARINE UNDERWRITERS, INC.
    No. 07-CA-490.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 11, 2008.
    Rehearing Denied April 7, 2008.
    Larry E. Demmons, Amanda Steelman Moore, Attorneys at Law, New Orleans, Louisiana, for Appellant, Geoffrey Hughes.

      David L. Patrón, Jaclyn C. Hill, Attorneys at Law, New Orleans, Louisiana, for Appellee, Energy & Marine Underwriters, Inc.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER. :
   SUSAN M. CHEHARDY, Judge.

|?In this case, Geoffrey Hughes appeals the trial court’s grant of Energy & Marine Underwriter, Inc.’s exceptions of no cause of action and unauthorized use of summary proceedings. Hughes appeals. For the following reasons, we dismiss this appeal. Facts and Procedural History

Plaintiff, Geoffrey Hughes, was the President and Profit Center Manager for Energy & Marine Underwriters, Inc.(“EMU”) until Hughes resigned on August 7, 2006. Hughes immediately demanded from EMU payment of his “bonus” of $68,127.33, which Hughes alleges was due to the Profit Center Manager based on a percentage of profit.

On October 26, 2006, Hughes filed a “Petition for Unpaid Wages, Penalties, and Attorney’s Fees” against EMU alleging that EMU had refused, in bad faith, to pay Hughes’ bonus, which was “earned wages” under La. R.S. 23:631. Hughes sought payment of the bonus as well as penalty wages and attorney’s fees under La. R.S. 23:632.

In response to his petition, EMU filed exceptions of no cause of action and unauthorized use of summary proceedings on March 22, 2007. On April 24, 2007, | ¡¡Hughes filed an opposition to these exceptions. The trial court held a hearing on this matter on April 26, 2007. On May 1, 2007, the trial court signed the written judgment granting EMU’s exceptions of no cause of action and unauthorized use of summary proceedings. The judgment “ordered that Plaintiffs claims under the Louisiana Wage Payment Act, La. R.S. 23:631, et s 'eq. are dismissed with prejudice and Plaintiff has fifteen (15) days to amend his' Petition for Unpaid Wages, Penalties, and Attorney’s Fees to assert viable claims and to convert his lawsuit to an ordinary proceeding.” (Emphasis added.)

. Rather than filing an amended petition, Hughes appealed to this Court. On appeal, he contends that EMU’s exceptions should have been referred to the trial on the merits. He also contends that the trial judge erred as a matter of law in ruling that he had no cause of action because his annual bonus was a “wage” under La. R.S. 23:361. EMU responds that the trial court properly found that Hughes did not have a cause of action because he seeks payment of a discretionary year-end bonus, which was not due under the terms of his employment contract.

We note a jurisdictional defect. Only final judgments, judgments reformed in accordance with either a remittitur or ad-ditur, and interlocutory judgments expressly provided by law are appealable. La. C.C.P. art.2083. The judgment appealed is none of these: it does not determine the merits of the case and the law does not expressly provide that the judgment is appealable. Further, Hughes was given the opportunity to amend his pleadings expressly in the judgment but moved for appeal before the time granted for amendment ran. See La. C.C.P. art. 1841.

In McKenzie v. Marino, 554 So.2d 803, 803-805 (La.App. 5 Cir.1989) this Court, citing our brethren on the Fourth Circuit in Agamy v. Merrill Lynch, Pierce, Fenner & Smith, 487 So.2d 579 (La.App. 4th Cir.1986), held that an order maintaining an exception of no cause of action and granting leave to amend was not a final judgment or an interlocutory judgment causing irreparable harm. Further, when the grounds of the objections pleaded in the dilatory exception, such as unauthorized use of summary proceedings, may be removed by amendment of the petition or other action by plaintiff, the judgment sustaining the exception shall order plaintiff to remove them within the delay allowed by the court; and the action, claim, demand, issue or theory subject to the exception shall be dismissed only for a noncompliance with this order. La. C.C.P. art. 933(B).

In this case, EMU’s exceptions were maintained and leave to amend was granted, which amounted to an interlocutory judgment that was not appealable. Based on the foregoing, we dismiss Geoffrey Hughes’ appeal at his cost.

APPEAL DISMISS ED; CASE REMANDED.

      . While we decline to address the error, we note that a judgment' of dismissal with prejudice, as was rendered in this case, is not in accordance with La. C.C.P. art. 933 and the jurisprudence interpreting the effect of that article. Thomas v. Sonic, 06-0014 (La.App. 1 Cir. 11/03/06), 950 So.2d 822; Saunders v. Lomonaco, 396 So.2d 316, 321 (La.App. 4th Cir.1981); Washington v. Flenniken Construction Company, 188 So.2d 486, 491 (La.App. 3rd Cir.1966).