author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Prentiss Burns CHANDLER, Appellant.
    No. 41,063-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 8, 2006.
    Rehearing Denied Sept. 21, 2006.

      William D. Hall, P.L.C., Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, Laura Wingate, Ron Christopher Stamps, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

LBy an 11-1 vote, a jury convicted Pren-tiss Burns Chandler of aggravated rape in violation of La. R.S. 14:42. Chandler received the mandatory life sentence without benefit of parole, probation or suspension of sentence. In this appeal, Chandler asserts that his conviction for aggravated rape must be reduced to a conviction of forcible rape. We reject that claim. We also find no merit to Chandler’s sentencing claim regarding the trial court’s process in imposing the mandatory life sentence. For the following reasons, we affirm the conviction and sentence.

Facts

On May 16, 2002, M.R.H. was at home folding clothes when Chandler knocked at the door and asked to use the phone to call his girlfriend who lived two doors down. Chandler said his girlfriend was not home and he was locked out. He also told her he worked at the town houses where she lived but lied about his name. M.R.H. took her cordless phone to Chandler to use outside. She turned to give him “a little privacy” and clean the kitchen, but when she turned back, he was standing inside. Chandler then said his girlfriend did not answer and he needed to call her again. He began “making small talk.” The victim said the situation made her “uncomfortable” and “nervous,” and that she began thinking of a way out of the house. At the time of this offense, Chandler was 6'4" and weighed 180 lbs. M.R.H. was 5'2" and weighed between 104-108 lbs.

Chandler dialed the phone again, but no one answered. He handed the phone back to the victim, moved closer and told her he needed sex. RM.R.H. ran for the door, but Chandler “grabbed” her arms from behind. The victim struggled and screamed to attract attention from anyone who might be outside. Chandler told her to lie on the floor, and when she continued to struggle, he pinned her face down in the hallway. She “wouldn’t let him” pull her shorts off and she tried to get away. He was too strong and held her down with one hand while he removed her shorts with the other. During the struggle, M.R.H. hit her head on the ceramic tile in the bathroom as Chandler held her down while removing his clothing. When Chandler tried unsuccessfully to penetrate her, he told M.R.H. to go upstairs. The victim “took off running” for the front door wearing no shorts or panties. She made it partially outside, screaming, before he pulled her back in, slammed the door and locked it. Chandler twice warned the victim not to do that again or she would “get hurt.”

Chandler threw the victim on the stairs, grabbed her by the arm and forced her upstairs. She asked him twice if he was going to kill her, and the defendant told her to do as he said. Chandler made M.R.H. kneel next to her bed and anally raped her, never letting go of her arm and leaning over her as she knelt. Chandler then instructed the victim to lie on the bed, which she did while he held her arm, and tried to vaginally rape her. After using Carmex lip balm retrieved from her nightstand, he penetrated her. Chandler repeated that M.R.H. would not get hurt if she did what she was told. He instructed her to stop crying, and tried to kiss her right breast. The victim “kept trying to move away from him” and asked the defendant not to ejaculate inside her. She testified Chandler made her stretch face down l3across the bed, and that as he anally raped her again, she began reading aloud from her Bible. Chandler grabbed the Bible, threw it against the wall and told M.R.H. to put on bikini bottoms and stand facing the wall. Chandler masturbated and made M.R.H. “lay back down,” as he ejaculated on her stomach.

M.R.H. began to “go into shock” as Chandler apologized, grabbed the phone, and told her she did not need to call the police as he planned to commit suicide. As the defendant kept telling M.R.H. not to call the police, he began “curling” the phone cord in his hands. M.R.H. again asked Chandler if he was going to kill her. He told her he would come back and kill her if she called the police. He took the phone cord with him when he left. M.R.H. found an extra phone cord and called her boyfriend (her husband at the time of trial) who arrived and called 911. M.R.H. was transported to the hospital for examination. After the victim identified Chandler as the perpetrator, he was arrested on charges of aggravated rape. Chandler confessed to raping M.R.H.

The jury convicted Chandler of aggravated rape after receiving a jury charge defining that crime and the lesser and included offense of forcible rape. Subsequent to his conviction, Chandler filed motions for reconsideration of sentence, post verdict judgment of acquittal and new trial, all of which were denied by the trial court. This appeal ensued.

Discussion

In raising the sufficiency of the evidence for the conviction for aggravated rape, Chandler presents various arguments. He argues that RM.R.H. did not resist the rape to the utmost. Next, he claims the threats to M.R.H. were merely implied and vague threats of physical violence, which fall only within the definition of forcible rape [La. R.S. 14:42.1 A(1) ], and not those of great and immediate bodily harm, required for aggravated rape [La. R.S. 14:42 A(2) ]. He then points out the lack of distinguishing guidelines for the determination of whether an aggravated rape under La. R.S. 14:42 A(2) occurred, or to the contrary, whether a forcible rape under La. R.S. 14:42.1 A(1) exists. Notably, Chandler concedes that the evidence was sufficient to convict him of forcible rape. Nevertheless, he asserts that the alleged lack of definitional guidelines between aggravated rape and forcible rape and the failure of the trial court to instruct the jury on this subject improperly allowed the jury to select a greater or lesser sentence by choosing between the two closely-defined grades of rape.

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

This court’s authority to review questions of fact in a criminal case is limited to the sufficieney-of-the-evidence evaluation under Jackson, supra, and does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a judge or jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, State ex rel. Gilliam v. State, 02-3090 (La.11/14/03), 858 So.2d 422.

The testimony of a sexual assault victim alone is sufficient to convict a defendant. State v. Richard, 39,705 (La.App. 2d Cir.5/11/05), 902 So.2d 1271, writ denied, 05-1713 (La.2/10/06), 924 So.2d 161. See also State v. Simpson, 39,268 (La.App. 2d Cir.1/26/05), 892 So.2d 694. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Elzie, 37,920 (La.App. 2d Cir.1/28/04), 865 So.2d 248, writ denied, 04-2289 (La.2/4/05), 893 So.2d 83. See also Simpson, supra; State v. Ponsell, 33,543 (La.App. 2d Cir.8/23/00), 766 So.2d 678, writ denied, 00-2726 (La.10/12/01), 799 So.2d 490.

There are two relevant definitions for aggravated rape raised by this case and Chandler’s arguments, Subsection A(1) and Subsection A(2). La. R.S. 14:42 A(1) and (2). Subsection A(l) requires the victim’s resistance of the act “to the utmost.” There is no element of the victim’s resistance in Subsection A(2) because “the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by the apparent power of execution.” In an early case, a defendant argued that he could only be prosecuted on one of these counts for aggravated rape because of the inconsistency in the two definitions. State v. Jackson, 227 La. 642, 80 So.2d 105 (1955). The supreme court answered defendant as follows:

This argument is illogical and does not take into account the realities of the situation. Moreover the statute itself provides that aggravated rape may be committed under “any one or more of the following circumstances.” This means that the circumstances may consist entirely of those set out in any one of the subsections or may be a combination of those set out in any two or in all three.

Id. at 107.

Before any consideration of Chandler’s arguments regarding the application of the forcible rape statute, the sufficiency of the evidence must first be judged solely from the standpoint of the elements of the crime of |7aggravated rape. As the decision in State v. Jackson indicates, Subsections A(l) and A(2) of the aggravated statute present two separate and independent definitions for the crime. Subsection A(1) is similar to the early common law definition for the crime with its requirement of evidence showing the rape victim’s “utmost” resistance to the act. The requirement for victim resistance has been the subject of criticism in various commentaries and the utmost resistance test no longer predominates across the nation as the key definitional element for aggravated rape. Michelle J. Anderson, Reviving Resistance in Rape Law, 1998 U. Ill. L.Rev. 953 (1998); Joshua Mark Fried, Forcing the Issue: An Analysis of the Various Standards of Forcible Compulsion in Rape, 23 Pepp. L.Rev. 1277 (1996).

Although Subsection A(l)’s “utmost” resistance requirement need not be our measure for aggravated rape in this case, two points should be made concerning its continued place in Louisiana’s definitional structure of the crime. First, the base definition for “rape” as set forth in La. R.S. 14:41 A proscribes “sexual intercourse” “without the person’s latvful consent.” Second, rape may occur in a setting between acquaintances, as well as between non-acquaintances, and the victim’s lack of “lawful consent” may be the subject of considerable dispute by the defense in certain alleged cases of acquaintance rape. Therefore, the victim’s resistance, as opposed to the victim’s being prevented from resisting, may in certain cases of ^acquaintance rape become the critical factual inquiry, making Subsection A(1)’s definition for aggravated rape more vital for gauging the victim’s lack of lawful consent.

Turning to Subsection A(2) of our aggravated rape statute, this definition of the crime does not set forth any element of resistance by the victim, requiring only the existence of a threat “of great and immediate bodily harm, accompanied by apparent power of execution.” It is important to note that the victim need not first resist and then be prevented from resisting for the circumstances of Subsection A(2) to be met. This is because the gravity of the threat may be readily apparent and the victim need not ever chance the harm. Like the threat of a dangerous weapon, which is addressed by the similar language of Subsection A(3) of the aggravated rape statute, the victim is not required to test the application and magnitude of the threat by first resisting and subjecting herself to harm. A fair reading of Subsection A(2) requires no showing of victim resistance.

Additionally, Subsection A(2) does not require the defendant’s use of force other than the inherent egregious force of the rape itself. Again, for an analogy, it is clearly understood that in the deadly weapon setting addressed by Subsection A(3), the rapist with a gun need not use it to harm the victim but only to threaten her. The same is true for Section A(2). The magnitude of the defendant’s use of force, other than the rape itself, is not an element of the crime.

|9In summary, Subsection A(2) does not ask the fact-finder to determine how much more the victim might have resisted nor how much force was used by the defendant. Instead, the appropriate focus under Subsection A(2)’s definition of aggravated rape is the existence of a threat of harm and the power to carry it out.

Last, before we leave this analysis of the crime of conviction, it is significant to remember that our legislature first enacted these categories for aggravated rape in 1942, when the only other grade of rape included in the Code’s enactment was simple rape. The same language of the Criminal Code remains in our law today. Simple rape has long had as its emphasis the incapacity of the victim to give lawful consent to sexual intercourse because of stupor caused by an intoxicating agent or other cause or unsoundness of mind. La. R.S. 14:43. Therefore, according to Chandler’s present argument, before the enactment in 1975 of the crime of forcible rape, a defendant’s actions identical to those of the perpetrator in this case would not constitute the crime of rape under any grade in our law. In the absence of proof of “utmost resistance” by M.R.H., Chandler argues that the threat to her by his actions does not qualify to support the crime of aggravated rape under Subsection A(2) of the statute. With simple rape also suspect under these facts because of the lack of a mental impediment attributable to the victim, this would mean that under the original scheme of our Criminal Code, this heinous crime pre-1975 would fall between the cracks of the legislative purpose of Subsection A(2) with no criminal Inconsequences regarding rape. We reject as historically unsound that view of the scope of our aggravated rape statute.

With victim resistance and the force of the defendant not relevant tests, the jury in this case was charged under Subsection A(2) to consider the threat that was posed by the home invasion of this non-acquaintance of M.R.H. They also considered the “apparent power” of the much larger intoxicated defendant to inflict great and immediate bodily harm on M.R.H. Those facts alone, given for consideration of the threat and accompanying fear visited upon M.R.H., persuade us of the sufficiency of the evidence for aggravated rape under Section A(2). A non-acquaintance, home invasion, sexual attack, by a large male on a female has always, in our opinion, been included within the purpose and language of Louisiana’s definition of aggravated rape. Moreover, there was much additional evidence of actual force and harm to M.R.H. and the resistance she gave, both physically and verbally. That is relevant evidence of her fear and understanding of the threat that was present, and is not considered herein in any effort to measure her resistance as an element of the crime under Subsection A(2).

Next, to best understand Chandler’s arguments regarding the issue of where aggravated rape ends and forcible rape begins, we will compare the two statutes which each define a rape committed under the following circumstances:

(i) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution. [Aggravated rape, La. R.S. 14:42A(2) ]; or
ln(ii) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape. [Forcible rape, La. R.S. 14:42.1A(1) ].

The closeness of these definitions caused the writer of the plurality opinion in State v. Parish, 405 So.2d 1080, 1086 (La.1981), to observe in dicta that “[t]he legal definition of this form of aggravated rape is virtually identical to that of forcible rape.”

Chandler does not raise any clear constitutional attack on the effect of these two statutes which were read to the jury as part of the charge. Nevertheless, the Louisiana Supreme Court has consistently upheld the constitutionality of Louisiana’s aggravated rape statute and rejected arguments that the statute is unconstitutionally vague and overbroad due to the virtual lack of difference between aggravated rape, La. R.S. 14:42 A(2) and forcible rape, La. R.S. 14:42.1 A(1). State v. Willie, 422 So.2d 1128 (La.1982); State v. Drew, 360 So.2d 500 (La.1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979).

It is within the function of the legislature to make laws defining what breaches of the public peace shall be made punishable. Accordingly, it may specify various degrees of the same crime and require a different measure of punishment for each. State v. Ritchie, 590 So.2d 1139 (La.1991). The fact that a defendant’s conduct falls within the purview of two criminal statutes is not unusual. A statutory scheme which gives the prosecutor the option to choose between two properly defined offenses for the same crime does not violate any constitutional rights of an accused. Indeed, the prosecution may |iabe under either provision if the statutes do not discriminate against any class of individuals. United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); City of Baton Rouge v. Williams, 95-0308 (La.10/16/95), 661 So.2d 445; State v. Walters, 440 So.2d 115 (La.1983).

In enacting La. R.S. 14:42 A(2) and 14:42.1 A(1), it was the legislative aim to divide the continuum of acts of coerced sexual intercourse into two categories, aggravated rape and forcible rape, thereby assigning to the jury the function of fixing the range of permissible punishment for convicted offenders by returning a verdict which appropriately fits the crime. State v. Willie, supra. This statutory scheme vests no sentencing authority in the jury which simply determines which verdict is appropriate after reviewing the evidence; it is the legislature which determines the sentence. State v. Lanerie, 527 So.2d 1146 (La.App. 3d Cir.1988).

From this authority and in light of our opinion concerning the application of the aggravated rape statute and the sufficiency of the evidence in this case, we reject Chandler’s arguments that the closeness of the definitions of the two crimes taints the jury’s verdict. As a matter of law, Chandler directs this court to no authority to reduce this verdict which was sufficiently supported by evidence of aggravated rape beyond a reasonable doubt. The jury’s prime function of determining the sufficiency of the evidence for a charged crime was fully and correctly exercised in this case. Additionally, for the same reasons, we find no error in the trial court’s refusal to give a special jury charge quoting the language of State v. Parish, supra, regarding the “virtually identical” crime definitions for aggravated 11sand forcible rape. The trial court’s charge read the definitions of both crimes and the applicable sentences to the jury. This was sufficient to advise them of the elements of the crimes and, by implication, to inform them of their power to give a responsive verdict of forcible rape.

Chandler next argues that the trial court erred in refusing to allow him to cross-examine Brenda Smith as to her expert qualifications outside of the presence of the jury and in allowing her to testify as an expert witness. Specifically, Chandler argues that the trial court failed to exercise its “gatekeeping” function by allowing questioning of the witness before the jury regarding her qualifications. Chandler also argues that the state improperly elicited testimony from the witness from her experience regarding the lack of physical injury in the majority of rape cases.

As provided by La. C.E. art. 702, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana Supreme Court adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding proper standards for the admissibility of expert testimony which requires the trial court to act in a gatekeep-ing function to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. State v. Chauvin, 02-1188 (La.5/20/03), 846 So.2d 697. To assist the trial |14courts in their preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, the Supreme Court suggested the following general observations are appropriate: 1) whether the theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error; and 4) whether the methodology is generally accepted by the relevant scientific community. Daubert, 509 U.S. at 592-594, 113 S.Ct. 2786. In Foret, supra, the court adopted these observations as a helpful guide for our lower courts in considering this difficult issue. Id. Thus, Louisiana has adopted Daubert's requirement that in order for technical or scientific expert testimony to be admissible under La. C.E. art. 702, the scientific evidence must rise to a threshold level of reliability. Daubert’s general “gatekeep-ing” applies not only to testimony based upon scientific knowledge, but also to testimony based on “technical” and “other specialized knowledge.” Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999); Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226. The trial court may consider one or more of the four Daubert factors, but that list of factors neither necessarily nor exclusively applies to all experts or in every case. Id. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determinations. Kumho, supra at 526 U.S. at 142, 119 S.Ct. 1167.

11fiIn establishing the witness’s qualifications as an expert in sexual assault examination, the prosecution first asked Smith’s job title and description. Smith testified that she was a registered nurse and sexual assault nurse examiner who performed sexual assault examinations for the police department. Smith described her education, training, and certification, as well as the customary procedure for performing the examination and the types of evidence that are collected in such examinations. She explained that the evidence was collected as part of a “standardized kit” so that the procedure is conducted in the same manner each time. She testified that she had performed “approximately 300” of these exams and had been qualified as an expert witness once before. The state then tendered the witness for cross-examination on her qualifications. -

The defense counsel objected, and the witness and jury were removed from the courtroom at the defense counsel’s request. Defense counsel then argued that the witness could not be questioned as to her qualifications in front of the jury without prejudicing the defendant. The trial court encouraged the defense counsel to cross-examine the witness, but denied the procedural request, stating that the law did not require that a witness “be examined outside the presence of the jury.” The defense counsel also objected as to lack of a foundation for proper tender as an expert, and the trial court ruled the objection as premature. After defense counsel refused to examine the witness in the presence of the jury, the state offered the witness as an expert in sexual assault examination. The court accepted the witness as an expert, and defense counsel again objected.

11fiSignificantly, Smith testified primarily as a fact witness because of her observation of M.R.H. after the incident. She reported the bruises, abrasions, vaginal redness, and vaginal and anal tears that she observed when examining the victim. She explained that M.R.H. was anxious, but cooperative. Her opinion testimony based upon her experience was that many rape victims receive no significant injury.

Defense counsel interrupted the questioning which elicited Smith’s answer about prior examinations, objecting that no foundation had been laid regarding the facts surrounding the 300 cases. He again urged the right to question the witness as to her qualifications outside the jury’s presence. Counsel then requested a mistrial which the trial court denied. The testimony was allowed. Defense counsel proceeded to cross-examine the witness regarding the victims involved in her 300 previous examinations and the standard procedures for the exams.

On appeal, Chandler argues that the trial court erred in refusing to allow voir dire of the witness outside of the presence of the jury. In support of his position, the defendant’s brief cites brief State v. King, 38,983 (La.App. 2d Cir.10/27/04), 886 So.2d 598, writ denied, 04-2949 (La.3/24/05), 896 So.2d 1032, in which trial court removed the jury from the courtroom during examination of a witness before qualifying him as an expert. Nevertheless, King, supra, offers no authority or precedent for requiring the trial judge to remove the jury during the voir dire of an expert witness, nor has Chandler cited any authority which mandates such removal of the jury. Accordingly, no reversible error has been demonstrated.

117Chandler also complains regarding Smith’s experience as a sexual assault nurse from which she learned from most of the physical exams involving rape victims that no physical injuries occurred. He argues that such expert opinion prejudiced his case because it implies that if the victim had injuries, then the force of Chandler’s battery upon M.R.H. must have been great.

First, we find no error in the trial court’s acceptance of Smith as an expert based primarily on her actual experience with rape victims. While initially refusing to cross-examine Smith on her expertise when tendered as an expert, defense counsel did ably cross-examine her as to the details and specifics of the other 300 cases. From our review of all the testimony, her opinion gleaned from that experience was appropriate expert testimony for the jury to weigh. Moreover, as we have discussed above, the force applied by Chandler to batter M.R.H. into submission to the actual rape was not a crucial element for the jury to specifically measure. The threat he presented to her as an intoxicated home intruder is the test of Subsection A(2) of the aggravated rape statute, whether or not force was used to cause bodily harm, other than the trauma of rape itself. On these grounds, we find no merit to Chandler’s claims.

Chandler next complains regarding the excessiveness of the sentence imposed. Specifically, he argues that the trial court erred in refusing to allow testimony regarding mitigating circumstances at sentencing hearings in violation of State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274, and in imposing a constitutionally excessive sentence.

11sOn October 4, 2004, after his conviction, Chandler filed a Motion to Declare Life Sentence Excessive and To Impose Term of Years. At his sentencing hearing on November 10, 2004, Chandler sought a hearing to introduce evidence to show that he was the exceptional defendant for which departure from the mandatory minimum sentence of La. R.S. 14:42 was appropriate. The court denied Chandler’s request for the hearing after determining that the sentence was mandatory. Specifically, the court ruled that “the defense is not entitled to present testimony to — that would require the Court to consider deviating from the mandatory life sentence.” The defense objected to the ruling and requested a proffer of the evidence sought to be presented at the hearing. The court allowed only a written proffer of the witnesses’ testimony. Afterwards, Chandler made a statement to the court in which he apologized to the victim and the state and asked the victim to forgive him. With that, the court sentenced Chandler to the mandatory life sentence.

After sentencing, Chandler’s new counsel filed a Motion to Reconsider Sentence, re-urging the request for an evidentiary hearing. At the hearing for reconsideration of the sentence and post-sentence bail, counsel informed the court that he had four witnesses who were available to testify. The court reiterated its position of its lack of authority to deviate from the mandatory minimum and again denied counsel’s request for a hearing. Counsel objected and requested an opportunity to amend the proffered evidence if necessary. No objection to the request was offered by the state and additional proffered evidence was received.

|19In considering Chandler’s assertions, we have reviewed the leading cases of State v. Dorthey, 623 So.2d 1276 (La.1993) and State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, which address this issue of mandatory minimum sentence in the context of the habitual offender law. Johnson held that downward departure from a minimum sentence may occur if the defendant rebuts the presumption of constitutionality by showing clear and convincing evidence that he is exceptional, namely, that he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the gravity of the offense, the culpability of the offender, and the circumstances of the case. See also, State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001). The Johnson test for the “exceptional” defendant allows the defendant to present evidence of these factors in mitigation, and the trial court exercises its sentencing power in applying the test.

In State v. Fobbs, supra, the Louisiana Supreme Court extended the Dorthey/Johnson holding to mandatory minimum sentences beyond habitual offender cases. The per curiam ruling, however, did not address a case involving a mandatory life sentence. With the Johnson test applicable, did the trial court err in refusing to consider the evidence and is a remand required for the application of the trial court’s sentencing discretion after consideration of the evidence?

Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:42(D)(1). It is the legislature’s |2oprerogative to determine the length of the sentence imposed for crimes classified as felonies, and the courts are charged with applying those punishments unless they are found to be unconstitutional. State v. Stokes, 36,212 (La.App. 2d Cir.9/18/02), 828 So.2d 631, writ denied, 02-2807 (La.9/5/03), 852 So.2d 1023; State v. Koon, 31,177 (La.App. 2d Cir.2/24/99), 730 So.2d 503. The decision to assess mandatory life sentences for certain felonies is within the prerogative of the legislature. Id. The assertion that the mandatory life sentence for aggravated rape is a violation of the prohibition against excessive punishment in the Louisiana Constitution has been repeatedly rejected. State v. Stokes, supra; State v. Ingram, 29,172 (La.App. 2d Cir.1/24/97), 688 So.2d 657, writ denied, 97-0566 (La.9/5/97), 700 So.2d 505.

Johnson held that the courts have the power to declare a sentence excessive under Article I, Section 20 of the Louisiana Constitution, although it falls within the statutory limits provided by the legislature. Johnson, supra at 676. The exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court. Dorthey, supra at 1280, citing State v. Sepulvado, 367 So.2d 762, 764 (La.1979).

From this review, we find that the “rare circumstances” described by Johnson in which a mandated sentence can be altered are even less likely in the case of the life sentence chosen by the legislature for this single crime. The life sentence punishment selected by the legislature is for a single crime, unlike a mandatory minimum sentence under our habitual offender law where the rare combination of repeated, yet less egregious, crimes may | ?,ilead to an excessive punishment. The mandatory minimum sentence for aggravated rape is not a term of years, where the trial court’s discretion in fixing a term is still involved and where the defendant may receive the benefit of parole. The “tailoring” of this sentence by the legislature was for life because the culpability of offenders and the gravity of the offense are so great.

Accordingly, from our review of the circumstances of this case and in view of the mandated life sentence which is not unconstitutionally excessive, we find that remand to the trial court for review of the proffered evidence is unnecessary. This assignment of error is without merit.

Decree

For the foregoing reasons, we affirm Chandler’s aggravated rape conviction and sentence.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, CARAWAY, PEATROSS, DREW and MOORE, JJ.

Rehearing denied.

      . La. R.S. 14:42 provides, in pertinent part:
      A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
      (1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
      (2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.

      . See, Dale E. Bennett, The Louisiana Criminal Code—A Comparison with Prior Louisiana Criminal Law, 5 La.L.Rev. 6 (1942), documenting the overlap in the Louisiana criminal law with the common law crimes prior to the adoption of the Louisiana Criminal Code.

      . La. R.S. 14:41 A provides: Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person's lawful consent.

      . La. R.S. 14:42 A(3) provides for the circumstance of aggravated rape ''[w]hen the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.”


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Bill SMITH, W.D. Walker and Terry Lewis, Plaintiffs-Appellants v. RUSTON FIRE AND POLICE CIVIL SERVICE BOARD, Defendant-Appellee.
    No. 41,297-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 12, 2006.

      Ernest Lloyd Johnson, for Appellants.
    Cook, Yancey, King & Galloway by Stephen Price Barker, Shreveport, Dawkins & Carter by William Shands Carter, Jr., Ru-ston, for Appellee.
    Before BROWN, DREW and LOLLEY, JJ.
   DREW, J.

| plaintiffs Bill Smith, W.D. Walker, and Terry Lewis appeal a trial court ruling which:

• rejected the use of mandamus to redress plaintiffs’ grievances concerning the selection of Ruston’s Fire Chief;
• found that plaintiffs lacked a cause of action to pursue this action; and
• ruled that none of the Ruston Fire and Police Civil Service Board’s actions [in extending the application time-frame, in advertising the extended application period for three days (instead of four), and in accepting the qualifications of the new fire chief], were arbitrary and capricious decisions.

We affirm the judgment in all respects, adopting and reproducing the trial court’s excellent and thorough Reasons for Judgment, attached hereto as an appendix, and made a part of this opinion.

DISCUSSION

Ruston Fire Chief Donnie Watson resigned, triggering a request to the Ruston Fire and Police Civil Service Board (“the board”) by Mayor Dan Hollingsworth, to advertise for applications, as per La. R.S. 33:2492. The board complied properly and legally.

Two days before the original time frame for applications expired, Mayor Hollings-worth requested that the deadline be extended, so as to increase the number of applicants. The extended period was only advertised three days, instead of four.

James T. Tornabene applied during the extended period, made the highest score on the civil service examination, was selected by the mayor, and confirmed by the council.

| ¡>Only after the confirmation of Chief Tornabene did the plaintiffs request the use of mandamus to resolve their problems with the selection process.

In a nutshell, we find that:

• the board, composed of part-time volunteers, had ample authority to extend the application period;
• the three advertisements (instead of the requisite four) of the extended period were de minimis violations which had no appreciable bearing on the process;
• Chief Tornabene is eminently qualified to be the fire chief of Ruston, Louisiana; and
• the board’s refusal to order an investigation was not arbitrary and capricious.

Every eomplained-of action was discretionary by the board, with other remedies available at law, and therefore an improper subject of a mandamus proceeding.

From this record we can discern no effort to frustrate the fairness required by the civil service laws. The process was not perfect, but neither is life. We find no reversible actions and accordingly affirm in all respects for the reasons given by the trial court.

DECREE

The judgment of the trial court is AFFIRMED.

APPENDIX

BILL SMITH, W.D. WALKER AND TERRY LEWIS

VERSUS

RUSTON FIRE AND POLICE CIVIL SERVICE BOARD

FILED: October 27, 2005

CIVIL DOCKET NO. 50,717

THIRD JUDICIAL DISTRICT COURT

LINCOLN PARISH, LOUISIANA

REASON FOR JUDGMENT

11 This is a mandamus proceeding filed by Bill Smith, W.D. Walker and Terry Lewis against Ruston Fire and Police Civil Service Board, hereinafter sometimes referred to as “the Board”. Bill Smith and W.D. Walker are citizens of the City of Ruston. Terry Lewis is an unsuccessful applicant for the position of Fire Chief of the City of Ruston.

PROCEDURAL HISTORY:

On August 12, 2005, plaintiffs filed Petition for Writ of Mandamus seeking an order from this Court directing the Board to take certain actions. Plaintiffs allege the following irregularities occurred during the selection process which resulted in the appointment of James T. Tornabene as Fire Chief for the City of Ruston: (1) Tornabene’s application was filed after the legal deadline which was unlawfully extended by the Board; (2) Notice of Fire Chief Exam was not published in the official journal of the City of Ruston four times, as required by law, during the unlawfully extended application period; (3) Tornabene did not meet the qualifications for office.

On September 13, 2005, the Board filed an Answer to Plaintiffs Petition for Writ of Mandamus and Exceptions of No Cause of Action and No Right of Action. The Board admitted some allegations of fact and denied others. The Board further excepted to plaintiffs’ petition contending it failed to state a cause of action because: (1) the acts demanded of the Board by Plaintiffs are discretionary acts and outside the scope of mandamus; accordingly, mandamus is not a proper procedural vehicle in this case; (2) the Board has no authority to remove a sitting Fire Chief; (3) the Board is statutorily authorized to extend the deadline for submission of applications; (4) no just cause exists to conduct any further investigation by the Board into the application and selection process; (5) Tornabene met the qualifications for office; and (6) the alleged violations of public notice requirements did not harm the plaintiffs. The Board further excepted to plaintiffs’ petition contending the Bill Smith and W.D. Walker have no special interest in this case |?and, accordingly, they have no right of action to bring this lawsuit. The exceptions were referred to merits.

FACTS:

On September 15, 2004, at the request of Mayor Dan Hollingsworth, the Board opened the position of Ruston Fire Chief for applications. The Board set a deadline of November 1, 2004, for the submission of applications of interested persons. Public notice of the taking of the Fire Chief Exam was published in the Ruston Daily Leader four times during a thirty day period as required by law. By letter dated October 29, 2004, Mayor Hollingsworth asked the Board to extend the deadline so that a larger pool of potential candidates for the position of Fire Chief could be obtained. On November 2, 2004, the Board extended the deadline for applications to December 6, 2004. During the extended deadline period, public notice of the taking of the Fire Chief Exam was published three times in the Ruston Daily Leader, not the four times required by law. On December 6, 2004, Tornabene submitted his application to the Board. On January 27, 2005, the Fire Chief Exam was given to interested applicants. Torna-bene received the highest grade of all the applicants on the examination. On April 12, 2005, Tornabene was appointed by the Mayor and confirmed by the City Council to the position of Ruston Fire Chief.

On May 13, 2005, Bill Smith and other concerned citizens made written request upon the Board for a public hearing and/or investigation into “discrepancies” and/or “irregularities” concerning the application of Tornabene, his qualification to serve and the Board’s process in handling Torna-bene’s application. On May 20, 2005, James Fraiser, Chairman of the Board, presented to the Board Bill Smith’s letter with the signature of other concerned citizens. Bill Smith was present at this meeting and considerable discussion was had concerning the grievances of Smith and other concerned citizens. On June 8, 2005, the Board again met in public session; plaintiffs Bill Smith, W.D. Walker and other concerned citizens were present. Considerable discussion ensued centered around the qualifications of Tornabene to serve and whether the Board properly extended the original deadline. On July 19, 2004, the Board again met in public session. Bill Smith and other citizens were present at this meeting. After some discussion with citizens, the Board voted not to further investigate the matter. The matter was considered closed.

JjLAW OF MANDAMUS:

A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. LSA-C.C.P. art. 3863. However, a writ of mandamus may only be issued in cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. LSA-C.C.P. art. 3862. In mandamus proceedings against a public officer involving the performance of official duty, nothing can be inquired into but the question of duty on the face of the statute and the ministerial character of the duty he is charged to perform. Plaisance v. Davis, 2003-0767, p. 11 (La.App. 1st Cir.11/07/03), 868 So.2d 711, 718, writ denied, 2003-3362 (La.2/13/04), 867 So.2d 699.

Mandamus is an extraordinary remedy, which must be used sparingly by the court and only to compel action that is clearly provided by law. Allen v. St. Tammany Parish Police Jury, 96-0938 (La. App. 1st Cir.2/14/97), 690 So.2d 150, 153, (writ denied, 97-0599 (La.4/18/1970), 692 So.2d 455. Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised. Allen, 690 So.2d at 153. The remedy is not available to command the performance of an act that contains any element of discretion, however slight. Fire Protection District Six v. City of Baton Rouge Department of Public Works, 2003-1205, p. 3 (La.App. 1st Cir.12/31/03), 868 So.2d 770, 772, writ denied, 2004-0299 (La.4/08/04), 870 So.2d 270.

Further, mandamus is to be used only when there is a clear and specific legal right to be enforced or a duty that ought to be performed. It never issues in doubtful cases. Wiginton v. Tangipahoa Parish Council, 2000-1319, p. 4 (La.App. 1st Cir.6/29/01), 790 So.2d 160, 163, writ denied, 2001-2541 (La.12/07/01), 803 So.2d 971. Although the granting of a writ of mandamus is considered improper when the act sought to be commanded contains any element of discretion, it has, nevertheless, been allowed in certain cases to correct an arbitrary and capricious abuse of discretion by public boards or officials. See Fire Protection District Six, 2003-1205 at p. 3, 868 So.2d at 772, citing State ex rel. Torrance v. City of Shreveport, 231 La. 840, 93 So.2d 187, 189 (1957)(where the Louisiana Supreme Court held that mandamus will lie to correct the performance (or nonperformance) of an administrative or quasi-judicial act, such as the arbitrary refusal to grant a license.

^ANALYSIS:

Plaintiffs seek an order from this Court directing the Board to do the following: (1) reject the application of Tornabene for the position of Fire Chief for the City of Ruston; (2) remove Tornabene from his position based upon his alleged failure to meet the qualifications for the position of Fire Chief; and (3) conduct an investigation into the process involved in the selection of Tornabene. The Court will address each request in the order listed above.

REJECTION OF APPLICATION OF TORNABENE

The Municipal Fire and Police Civil Service Law (LSA-R.S. 33:2471-2508) creates a municipal board which submits to the Mayor (the appointing authority) lists of persons eligible for appointment to various positions within the fire and police departments. This law sets up an extensive legal procedure to be followed by the Board in its discharge of its duties. The Board has no power to appoint; it only has authority to submit a list of eligible persons from which the Mayor makes the ultimate appointment.

The Municipal Fire and Police Civil Service Law makes only two (2) provisions for rejecting an application. Both provisions are contained in LSA-R.S. 33:2493(E). The first sentence of this section reads as follows:

“E. The board may reject the application of any person for admission to tests of fitness, or refuse any applicant to be tested, or may cancel the eligibility of any eligible on any employment list, who (1) Is found to lack any of the qualifications prescribed, or which may be legally prescribed, as requirements for admission to the tests for the class for which he has applied; (2) Is physically unfit to perform effectively the duties of a position of the class; (3) Is addicted to the habitual use of drugs or intoxicating liquors to excess; (4) Has been adjudged guilty of a crime involving moral turpitude or infamous or notoriously disgraceful conduct; (5) Has been dismissed from the respective service for delinquency or misconduct; (6) Has made a false statement of any material fact; or (7) Has practiced, or attempted to practice, deception or fraud in securing eligibility for appointment or attempting to do so.”

Pursuant to this provision, the Board may reject an application under certain conditions, including the lack of qualification. A mandamus cannot be sustained under this section, however, because the language of this provision is not mandatory, it is permissive and requires the exercise of board discretion. The Court has no authority to order the Board to perform an act that it may but is not required, to perform. Consequently, the rejection of an application under the provisions of LSA-R.S. 33:2493(E) can not be compelled by a writ of mandamus.

|sThe second reference to rejection of an application is contained in the last sentence of LSA-R.S. 33:2493 which reads as follows:

“The board shall reject any application filed after the time fixed for closing receipt of applications as announced in the public notice of the tests.”

Plaintiffs contend that the Board violated this provision by not rejecting Torna-bene’s application filed after the original deadline of November 1, 2004. This argument is without merit. LSA-R.S. 33:2477(4) reads in pertinent part as follows:

“The Board shall:
(4) ... review, and modify or set aside upon its own motion, any of its actions; take any other action which it determines to be desirable or necessary in the public interest, or to carry effectively the provisions and purposes of this Part ...”

This section empowers the Board to review, modify or set aside any of its actions or to take any other action it deems desirable and necessary in the public interest. Simply put, the Board is authorized to take any action in the exercise of its duties and responsibilities that does not contravene or violate law. No provision of law prohibits the Board from extending the deadline for the taking of applications. Thus, the Board is authorized to do so and, in fact, did so at the request of the Mayor. Tomabene’s application received before the new deadline of December 6, 2004, was timely.

For the reasons hereinabove stated, Plaintiffs do not have a cause of action for a writ of mandamus ordering the Board to reject Tornabene’s application.

REMOVAL OF TORNABENE FROM OFFICE

The record reflects that Tornabene was appointed Fire Chief by Mayor Dan Holl-ingsworth on April 12, 2005. Generally, the power to remove municipal employees resides with the Mayor, and the Board has no power to remove an employee after his appointment to office. LSA-R.S. 404(A)(3). However, LSA-R.S. 33:2495 places limitations upon the power of the Mayor to remove persons appointed to classified service from a competitive employment list, such as Tornabene, and grants certain powers to the Board with respect to the removal of such persons from office. LSA-R.S. 33:2495 reads in pertinent part as follows:

“A. Every person appointed to a position in the classified service following the certification of his name from a promotional or a competitive employment list, except those appointed on a temporary basis, shall be tested by a working test while occupying the position before he may be confirmed as a regular and permanent employee in the position.

B. (1)(a) Except as provided in Paragraphs (2) and (3) of this Subsection, the period of the working test shall commence immediately upon appointment and shall continue for a period of not less than six months nor more than one year. Any employee who has served at least three but less than |fisix months of his working test for any given position may be removed therefrom only with the prior approval of the board, and only upon one of the following grounds:

(1) He is unable or unwilling to perform satisfactory the duties of the position to which he has been appointed.

(ii) His habits and dependability do not merit his continuance therein.

(D) The appointing authority may remove, and shall remove upon the order of the board, any employee during his working test period who the board finds, after giving him notice and an opportunity to be heard, was appointed as a result of an error, misrepresentation, or fraud.”

Section 2495(A) provides for a working test period confirmation as a regular or permanent employee. Section 2495(B)(1)(a) provides that the working test commences upon the appointment by the appointing authority and continues for not less than six (6) months and not more than one year. The provisions for removal with prior approval of the board after at least three (3) months but not less than six (6) months is not applicable; Plaintiffs do not suggest that Tornabene is unable or unwilling to perform satisfactorily or that his habits and dependability do not merit his continuance.

Section 2495(D) is the only portion of the above quoted statutory provision that could have any relevance to the facts of this case. This section provides that the Mayor shall remove the employee during the working test period if ordered to do so by the Board finds, after notice and opportunity to be heard, that the appointment was the result of error, misrepresentation or fraud. The issuance of an order by the Board to the Mayor directing Tornabene’s removal pursuant to Section 2495(D) is not a duty the Board is legally mandated to perform. Such an order lies solely within the Board’s discretion. Such an order could only be issued after evaluation of evidence with Tornabene being given the opportunity to be heard. The issuance of such an order by the Board to the Mayor is not a “ministerial duty” which can be compelled by mandamus. Accordingly, plaintiffs have no cause of action for writ of mandamus against the Board compelling the removal of Tornabene from his office as Fire Chief of the City of Ruston.

REFUSAL TO INVESTIGATE

LSA-R.S. 33:2477(4) provides in pertinent part as follows:

“The Board shall
(4) Make, at the direction of the mayor, commissioner of public safety, chief either of the fire of police department, or upon the written petition of any citizen for just cause, or on its own motion, any investigation concerning the administration of personnel or compliance with the provisions of this part in said municipal fire and police services ...”

|7Thus, citizens have the right to petition the Board to investigate its compliance with the law in the discharge of its duties. Upon such a written request, if “just cause” exists to investigate, the Board is required to do so. The determination of “just cause” contains an element of discretion. However, the Board may not arbitrarily and capriciously refuse to conduct an investigation in the exercise of its discretion.

In this case, “just cause” to investigate is allegedly based on the following grounds: (1) the original deadline was illegally extended and, consequently, Torna-bene’s application was submitted untimely; (2) public notice of the Fire Chief Exam was only published three times during the extended application period, not the legally required four times; and (3) Tornabene was not required to serve. The first ground that the original deadline was allegedly illegally extended has already been addressed herein. This ground has no merit for the reasons hereinabove expressed.

The second ground for investigation is the failure to publish notice of the Fire Chief Exam in the Ruston Daily Leader four times. The Board acknowledges that the public notice was only published three times, not the four times required by law. The Court has not been furnished nor has it been able to locate any legal authority (statutory or jurisprudential) which would hold that Tornabene’s appointment was null and void for failure to comply with the legal requirements for public notice of the Fire Chief Exam. Plaintiffs could have sought appropriate legal relief, including mandamus, to compel the Board to comply with the requirements of public notice at any time prior to Tomabene’s appointment by the Mayor. At this point, the selection process has been completed. Tornabene has been appointed by the Mayor, this appointment has been confirmed by the City Council, and Tornabene is now in his working test period. There has been no showing that plaintiffs were adversely affected or prejudiced in any way by the failure to advertise the legally required four times. No purpose would be served by having the Board investigate its failure to advertise the requisite number of times. Finally, a review of the record in this matter does not reflect any complaint concerning failure to adequately publish notice until this lawsuit was filed. Apparently, the request for an investigation centered around the alleged illegal extension of the original deadline and Tornabene’s lack of qualification. The Court concludes that the Board’s failure to investigate further on this ground was not arbitrary or capricious.

The final ground for an investigation and, the most important ground, is that Tornabene did not meet qualifications to serve as Fire Chief. The Court has carefully reviewed the entire record |Rand the evidence presented and concludes that Tornabene met the qualifications to serve as Ruston Fire Chief.

The minimum qualifications for the Fire Chief position are: (1) must be a citizen of the United States; (2) must pass the Fire Chief civil service examination; (3) must have a bachelor’s or associate degree in a fire related curriculum; and (4) must have eight years of progressively responsible fire service experience.

Requirements Number 1 and Number 2 are not disputed or contested. The evidence clearly demonstrate sufficient fire service experience; therefore requirement Number 3 has been met. The only issue is whether Tornabene possessed the requisite degree in a fire related curriculum.

Tornabene completed the requirement for an Associate of Science in Fire Service Management on August 5, 2004. He received his degree from South Arkansas University Tech on December 14, 2004.

Plaintiffs contend that the degree should have been possessed by Tornabene when he submitted his application to take the Fire Chief Exam on December 6, 2004. They are mistaken. The minimum requirements must be met before admission to examination, not when the application to take the examination is submitted. LSA-R.S. 33:2493(B)(D); Defendants’ Exhibit 4. When Tornabene’s application was submitted on December 6, 2004, he had not met this requirement. However, at the time he took the examination on January 27, 2005, he did in fact meet all requirements, including possession of the required degree.

For the reasons hereinabove expressed, the Court concludes that on no ground was the Board’s refusal to further investigate this matter arbitrary and capricious.

CONCLUSION:

The issues raised by the Board in its exception of no right of action are rendered moot by the above rulings. Consequently, the Court pretermits ruling thereon.

For the reasons hereinabove stated, the demands of Plaintiffs as contained in Petition For Writ of Mandamus are dismissed at their costs. The Clerk of Court shall furnish counsel of record with a certified copy hereof. Judgment will be signed in accordance herewith.

THUS DONE AND SIGNED this the 25th day of October, 2005, Ruston, Louisiana.

/s/R. WAYNE SMITH, JUDGE DIVISION “B”

      . Interestingly, one plaintiff timely applied for the position as fire chief; the other two plaintiffs apparently had no interest in doing so. Consequently, it is hard to see how these plaintiffs were harmed. Indeed, the trial court ruled they had no cause of action.


author: JAMES F. McKAY III, Judge.

text:
    Maya BALAKRISHNAN v. LOUISIANA STATE UNIVERSITY SCHOOL OF MEDICINE in New Orleans, the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College. The State of Louisiana, et al. v. Maya Balakrishnan.
    Nos. 2005-CA-1266, 2005-C-1503.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 2006.
    Rehearing Denied Oct. 31, 2006.

      Roger D. Phipps, Phipps & Phipps, New Orleans, Louisiana, for Plaintiff/Appellee.
    Charles C. Foti, Jr., Attorney General State of Louisiana, Paul B. Deal, Assistant Attorney General/Office Chief, New Orleans, Louisiana, for Defendants/Appellants.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   JAMES F. McKAY III, Judge.

LThe appellant Louisiana State University School of Medicine (“LSU Medical School”), The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College and the State of Louisiana (the State), appeals the judgment of the trial court. The trial court entered an order/judgment of preliminary default, a judgment confirming the default, issued a mandatory injunction, awarded six separate damages, attorney’s fees and cost totaling $650,453, and denied the defendant’s motion for new trial and/or to set aside the default judgment and return the case to the ordinary docket. We agree with appellant’s contentions and set aside the judgment of the trial court and remand the matter for a new trial.

FACTS AND PROCEDURE

This appeal primarily concerns the issue of insufficient evidence to support the Duty Judge’s granting of a preliminary default against the appellant and trial court’s improvident confirmation of the default judgment. As a result of this confirmation a mandatory injunction was issued; also damages, attorney’s fees and cost were awarded to Maya Balakrishnan. Further, the trial court ordered, adjudicated, and decreed that within 30 days from the signing of the judgment that the defendant, LSU Medical School, grant and issue Maya Balakrishnan, a diploma and certification, signed by the requisite University authorities, stating that she had completed the LSU psychiatry residency program. This particular issue is of great concern to this Court in light of the record before us.

On January 21, 2005, Maya Balakrish-nan, file a petition in Civil District Court for the Parish of Orleans entitled “Maya Balakrishnan v. Louisiana State University Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.” The petition asserted discrimination and damages as a result of the action of LSU Medical School, pursuant to Title 42, USC, § 1981, 1983 and the Fourteenth Amendment to the United States Constitution.

On February 25, 2005, the Orleans Parish Civil District Court Duty Judge Madeline Landrieu, entered a preliminary default judgment against the defendant. On April 7, 2005, the trial court, as per the order and judgment of the docketed division “A”, Judge Carolyn W. Gill-Jefferson, confirmed the preliminary default against the defendant. The trial court, as its reasons for judgment adopted the plaintiffs memoranda in opposition to the defendant’s motion for new trial. The judgment is as follows:

IT IS ORDERED, ADJUDICATED AND DECREED that within 30 days from the signing of this judgment, Defendant grant and issue Plaintiff/Petitioner’s diploma and certification, signed by the requisite University authorities, stating that she has completed the LSU psychiatry residency program;
IT IS ORDERED, ADJUDICATED AND DECREED that Defendant pay Plaintiff back pay of $129,167.00;
IT IS ORDERED, ADJUDICATED AND DECREED that Defendant pay Plaintiff front pay of $300,000.00;
IT IS ORDERED, ADJUDICATED AND DECREED that Defendant pay Plaintiff nonpecuniary compensatory damages for pain and suffering, emotional distress, humiliation, embarrassment, inconvenience in the amount of $100,000.00;
IT IS ORDERED, ADJUDICATED AND DECREED that Defendant pay attorney’s fees of $20,577.00;
IT IS ORDERED, ADJUDICATED AND DECREED that Defendant pay the cost of this litigation in the amount of $709.00 to plaintiff;
IT IS ORDERED, ADJUDICATED AND DECREED that pursuant to Louisiana Civil Code Article 2315, Defendant pay Plaintiff $100,000.00.

laOn April 14, 2005, the defendant filed a motion for new trial and/or motion to vacate default judgment, which the trial court denied on May 25, 2005.

ASSIGNMENTS OF ERROR

The appellant forwards two assignments of error. First, the appellant asserts that the evidence produced by plaintiff at the default hearing on April 6, 2005, was insufficient to justify and support the confirmation judgment. Second, the appellant asserts that the trial court committed error in failing to annul the preliminary and confirmation default judgments and in failing to grant the appellant’s motion for new trial.

STANDARD OF REVIEW

In reviewing a default judgment, an appellate court is restricted solely to determining whether the record contains sufficient evidence to support a prima facie case. Mossy Motors, Inc. v. Cameras America, 2002-1536, p. 3 (La.App. 4 Cir. 6/25/03) 851 So.2d 336, 339; Brasseaux v. Allstate Insurance Company, 97-0526 (La.App. 1 Cir. 4/8/98), 710 So.2d 826.

BURDEN OF PROOF

The Louisiana Code of Civil Procedure provides in article 1702: “A judgment of default must be confirmed by proof of the demand sufficient to establish a prima fa-cie case.” La. C.C.P. art. 1702(A). Construing the prima facie case requirement of Article 1702, the Louisiana Supreme Court in Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254 (La.1993), stated: In order for a plaintiff to obtain a default judgment, “he must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by Rthe defendant.” Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989); Blue Bonnet Creamery, Inc. v. Simon, 243 La. 683, 146 So.2d 162, 166 (1962).

“In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits.” Thibodeaux, 538 So.2d at 1004; Also See. Cornish v. Doctors Care, LLC, 2002-0285 (La.App. 4 Cir. 6/12/02), 819 So.2d 1158, 1162; Gleason v. Palmieri, 97-0624, p. 3 (La.App. 4 Cir. 12/23/97), 707 So.2d 57, 58. While there is a presumption that the record supports a default judgment, that presumption does not attach where the record indicates otherwise. Id. See also, Orleans Sheet Metal Works and Roofing, Inc. v. Landis Co., Inc., 96-0029, pp. 2-3 (La.App. 4 Cir. 7/24/96), 678 So.2d 73, 74. Although there is a presumption that the judgment confirming a default is supported by competent evidence, it does not apply when, as in this case, there is a transcript of the confirmation proceeding. Hall v. Folger Coffee Co., 2002-0920 (La.App. 4 Cir. 10/1/03), 857 So.2d 1234, 1244; Hickman v. Wm. Wrigley, Jr., Co., 33,896 (La.App. 2 Cir. 10/4/00), 768 So.2d 812.

As a corollary, “[ejxcept as authorized by the Code of Civil Procedure Article 1702, or evidence that fits within one of the exceptions provided by [the Louisiana Evidence] Code, hearsay evidence is inadmissible to confirm a default.” Id.; see La. C.E. art. 1101(A)(providing that “[ejxcept as otherwise provided by legislation, the provisions of this Code shall be applicable to the determination of fact ... in proceedings to confirm a default.”)

Likewise, depending on the nature of the plaintiffs demand, Article 1702 sets forth several exceptions to the rule against the use of hearsay evidence at the confirmation hearing. One of those pertinent exceptions is “[wjhen a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating ^evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such [delictual] demand.” La. C.C.P. art. 1702(B)(2).

Where, as here, the confirmation hearing was transcribed for our review, it is incumbent upon this Court to determine whether the evidence supporting the judgment, if any, is both competent and sufficient to sustain the plaintiffs burden of proving a prima facie case.

DISCUSSION

The appellant asserts in its first assignment of error that the default evidence offered by Maya Balakrishnan was insufficient to sustain the preliminary and ultimately the confirmation of the default judgment. After a comprehensive review of the record we agree with the appellant’s position that the evidence in the record is insufficient to sustain the default judgment.

By way of background, Dr. Balak-rishnan, a female of Indian national origin, asserts that she attended Cornell University in Ithaca New York, where she earned an undergraduate degree. She then attended medical school and graduated from Kasturba Medical College in Manipal, India. She completed her internship requirement as a visiting medical student at the University of Rochester School of Medicine in 1998. She then completed her medical student clinical rotations at the Cleveland Clinic Foundation, Cleveland, Ohio. She followed this up with two years of psychiatry residency education at Tufts University, New England Medical Center, Boston, Massachusetts and one year at Georgetown University Hospital in Washington, D.C. Subsequently, she began her employment at Louisiana State University School of Medicine in New Orleans in July 2002 as a resident in the 1 ¡/‘Resident and Fellow Training Program.” She avers that she completed two years in the psychiatry residency program at LSU Medical School. She was scheduled to complete this program on July 30, 2004. On July 14, 2004, LSU School of Medicine in New Orleans, through its program director Dr. Griffies, requested that Dr. Balakrishnan submit to a “fitness for duty” evaluation through the Employee Assistance Program (EAP); allegedly because she was suffering depression. Dr. Balakrishnan alleged that she complied with this request. This was followed up with a recommendation that she go to a residential treatment evaluation facility for three days at Pine Groove Recovery Center in Hattiesburg, Mississippi, at her personal cost of $5,000. She alleges that this was required in order for her to receive her diploma. While at Pine Groove Recovery Center, at her exit interview the evaluating physician Dr. Osofsky allegedly confronted her with two accusations. One that she participated in an escort service; and, that she falsified a licensure test score. She denied these allegations. Thereafter, she was allegedly determined to be “unfit for duty”. Subsequently, LSU Medical School suggested, presumably based on the above allegations and according to her estimation, she participate in a two-week outpatient, non-residential program at DePaul/Tulane. She asserts that she complied with the proposal and that the psychiatrist at DePaul/Tu-lane determined that she was “fit for work.” This was supported in a psychiatric consultation with Robert B. Detrinis M.D., dated November 15, 2004.

The appellee testified that in a letter dated December 20, 2004, LSU Medical School through the head of the department of psychiatry informed her that,

... due to “unethical and unprofessional behavior of misrepresenting your USMLE [United States Medical Licensing Examination] score |7report to the director [and the appearance of her alleged picture on an escort web site], ... we do not feel we can graduate you from our program and do not plan to certify your satisfactorily completion of our program. We acknowledge that you have satisfactorily completed the administrative aspects of the program, but you have not met the ethical and professional requirements of our program. Normally such a situation would lead to a plan for remediation, but our attempts to address these concerns have failed.

Although Maya Balakrishnan alleges as to the existence of this letter and despite the trial court’s adoption, in its reasons for judgment, of Appellee’s Memorandum In Opposition To Defendant’s Motion For New Trial and/or Vacate Default Judgment, no part of the record before either the trial court or this Court establishes competent evidence proving the existence of this’letter much less its contents.

In reference to the LSU Medical School’s allegations that Maya Balakrish-nan falsified a USMLE Step 3 Score Report, she asserts that the Director of the Residency Program and LSU Medical School wrote to the USMLE, stating she was a foreign student that she had two years until after she had transferred into the LSU program to take the Step 3 exam even though she was a PGY-3. Furthermore, the Director added that whether or not Dr. Balakrishnan had passed the Step 3 test was of no consequence to her satisfactory completion of the residency program at LSU Medical School. Furthermore, there is no evidence of this letter in the record or any evidence of a test score for either the trial court or this Court to review. There is also no corroborating evidence that this accusation was actually perpetrated upon Dr. Balakrishnan.

The appellee also asserts that she was discriminated against because of her race and/or national origin and/or sex as were other minority fellows/residents. IsWhile the appellee’s testimony is replete with unsubstantiated scenarios of other fellows/residents, who also suffered similar discrimination in that they were treated differently for various infractions during their fellowships/residencies based on race and sex, there is no evidence in the record to support this assertion other than her self-serving testimony. Dr. Balakrishnan further asserts that she was defamed by LSU Medical School in that it circulated and repeated rumors that she had engaged in immoral behavior. Thus, the appellant defamed, and/or libeled and slandered her. She claims that she deserves a damage award pursuant to La. C. Civ. Art. 2315. The only piece of evidence in the record is a letter to her attorney, Mr. Phipps, dated 3/1/05 in which Warren J. Fournier II, M.D. a Staff Physician at Charters-Pontchartrain Mental Health Center, wrote:

This letter is regarding an incident that occurred on the night of October 31, 2004. During a Halloween party in which several members of the Louisiana State psychiatric residents were present, Kelly Guidry, assistant to Dr. Scott Grif-fies, approached me, saying that the residency program had reason to believe that Dr. Balakrishnan was a prostitute.

Clearly, this is insufficient to establish corroborating evidence that the appellee was defamed. There is no foundation in the record to establish the writer’s reliability nor verifiable identification perhaps in the form of an affidavit from said writer, nor is his rendition of the occurrence verified or corroborated. At the most it appears to be- a rumor. It is simply insufficient to corroborate the testimony of Dr. Balakrishnan.

Dr. Balakrishnan, relative to her claim for loss of income (back pay and front pay), asserts that due to LSU Medical School’s actions in refusing to provide her with a diploma/certification that she had successfully completed her residency program that she is unable to work as a psychiatrist. Although she testified as to 1 flvarious job offers, in particular a job as a psychiatrist in Chicago, no documentation of any employment offers were substantiated in the record. The only documentation in the record are various letters of recommendation unrelated to any specific employment opportunities. None of this reaches the standard of her burden of proof to establish by competent evidence her claim for back and front pay.

As to the establishment of attorney fees there is ample proof in the record including a detailed accounting by her attorney Mr. Phipps.

These findings pretermit our consideration of the appellants remaining arguments.

CONCLUSION

For the foregoing reasons, the default judgment entered in this matter is vacated and set aside. The matter is remanded for further proceedings.

DEFAULT JUDGMENT VACATED AND SET ASIDE; REMANDED

      . She was elected chief resident.

      . The director would be the Director of the Residency Program at LSU


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Reuben D. CARTER, Appellant.
    No. 41,445-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.

      Louisiana Appellate Project by Laura Marie Pavy, for Appellant.
    Walter E. May, Jr., District Attorney, Douglas L. Stokes, Jr., Robert A. Moore, Assistant District Attorney, for Appellee.
    Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

11 This criminal appeal arises from the Second Judicial District Court, Parish of Jackson, State of Louisiana. The defendant, Reuben Carter, entered a guilty plea to the charge of illegal possession of stolen things having a value of $500.00 or more. La. R.S. 14:69(A). He was sentenced to the agreed-upon term of three years at hard labor, with all but one year suspended, and two years of supervised probation. Carter now appeals and for the following reasons, the trial court’s order denying Carter’s motion to suppress is reversed, and his conviction and sentence are vacated and remanded to the trial court for further proceedings.

Facts

In response to a tip from the victim of a burglary, Deputy Johnny Horton, a deputy with the Jackson Parish Sheriffs Department, went to the residence of Johnny Davis where a search, conducted with Davis’ consent, led to the discovery of the victim’s stolen property. As later stated by Dep. Horton, Davis indicated that Carter had asked him if he could store the items in the shed because Carter did not have room for them at his house. Carter was arrested and charged with the illegal possession of stolen things having a value of $500.00 or more, a violation of La. R.S. 14:69(A).

On February 16, 2006, Carter filed a motion to suppress his oral and written statements on the basis that he was not advised of his Miranda rights prior to the taking of either statement. At the hearing on the motion to suppress, Dep. Horton described how he approached Carter after finding the stolen goods. Carter was across the street in front of his house. Deputy | ¡¡Horton also stated that upon being questioned, Carter admitted at that time that he had put the items in Davis’ shed and that he had obtained the items from an individual by the name of James Gray. Additionally, Dep. Horton claimed that Carter admitted that he knew the items to be stolen. Deputy Horton then arrested Carter and took him to the sheriffs office where he made a second written statement on a form provided by the arresting authorities.

Carter’s written statement alleged that Davis had come to his home at the end of June and told him that he had received certain items from “James” (presumably the “James Gray” mentioned in his earlier statement) including a “TV, AC and Stereo.” Because Davis could only use the air conditioner, he allegedly offered to sell the other items and split the money with Carter. Then, according to Carter, Davis borrowed $25.00 from him. Carter’s statement alleges that the items were never in his home. Deputy Horton stated that at the time Carter was questioned, Officer Mike Walsworth of the Hodge Police Department was present to assist. He also claimed that he administered Carter his Miranda rights prior to questioning him.

At the same hearing, Carter testified that on the date in question he was standing out in his yard when he saw Dep. Horton speaking to his neighbor, Davis. He saw Davis point over towards his yard after which Dep. Horton approached him. After approaching him, Carter claims that Dep. Horton asked him if he knew anything about the “stuff in the storage house,” to which he replied “yea.” Carter testified that immediately after lathis brief exchange, Dep. Horton told him he was under arrest and placed him in handcuffs. According to Carter, Officer Walsworth did not arrive on the scene until after he was already in handcuffs. He denied that he was advised of his right to an attorney or his right to remain silent at any time prior to or after his arrest. After hearing all the testimony, the trial court denied Carter’s motion to suppress the statements.

On February 27, 2006, Carter entered a guilty plea to the charged crime, and the trial court sentenced him to three years’ imprisonment at hard labor, all but one year suspended and two years of supervised probation. He reserved his right to appeal the trial court’s ruling on the motion to suppress, and this appeal ensued.

Discussion

In his first assignment of error, Carter argues that the trial court erred in denying his motion to suppress prior to his guilty plea. Specifically, Carter argues that the “totality of the evidence” supports his claim that he was not properly advised of his Miranda rights and, therefore, could not have made a knowing and intelligent waiver thereof. Specifically, he points to the fact that the testimony of Dep. Horton was uncorroborated despite the alleged presence of another law enforcement officer and the fact that the rights advisory contained on the written statement made by the defendant was inadequate (presumably because it does not inform the maker of his right to remain silent or his right to an attorney). The state maintains that the record establishes that the defendant was properly “Mimndized.” However, the state acknowledges that the record fails to establish that|4Carter validly waived those rights. Believing that the fact that such a waiver was made can be established, the state suggests that the matter should be remanded for rehearing of the matter.

Louisiana C. Cr. P. art. 703 provides, in pertinent part, that:

A. A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.
B. A defendant may move on any constitutional ground to suppress a confession or statement of any nature made by the defendant.
;J< íJí 5};
D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.

The admissibility of an inculpato-ry statement by the defendant is a question for the trial judge, whose conclusions on the credibility and weight of testimony relating to the voluntariness of the statement should not be overturned on appeal unless they are not supported by the evidence. State v. Richardson, 33,272 (La.App.2d Cir.11/01/00), 779 So.2d 771, writ denied, 2000-3295 (La.10/26/01), 799 So.2d 1151. Great weight is placed upon the trial court’s factual determinations because of that court’s opportunity to observe witnesses and assess credibility. State v. Roddy, 33,112 (La.App. 2d Cir.04/07/00), 756 So.2d 1272, writ denied, 2000-1427 (La.05/11/01), 791 So.2d 1288.

| ^However, at a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, supra. It is well settled that a “heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Tague v. Louisiana, 444 U.S. 469, 470, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980).

Even when a defendant has not expressly invoked his rights under Miranda, “[t]he courts must presume that a defendant did not waive his rights.” North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979). It might be presumed that a proper advisory of one’s Miranda rights followed by the voluntary giving of an in-culpatory statement would constitute an implicit waiver of those rights. However, the Louisiana Supreme Court has held that a waiver is not established by showing that a defendant was given the complete Miranda warnings and thereafter gave an incriminating statement. See State v. Vigne, 2001-2940 (La.06/21/02), 820 So.2d 533.

As is conceded by the state in its brief, Carter’s assignment of error has merit. The State admits that the record contains no evidence that Carter made a knowing and voluntary waiver of those rights. As in State v. Vigne, supra, the only evidence on the issue was Dep. Horton’s testimony that Carter did not appear to be intoxicated or suffering from any other impairment which may have prevented him from understanding his rights. LThe State failed to meet its burden at the suppression hearing, and the trial court erred in failing to suppress the defendant’s statement. See Tague v. Louisiana, supra. Furthermore, we see no basis for reopening the suppression hearing to allow the State a “second bite at the apple” by attempting to introduce evidence it certainly had available to it at the first hearing. However, we note that evidence of the crime existed prior to Carter’s inadmissible statement to police. The inadmissibility of Carter’s statement for failure to obtain a waiver of his Miranda rights would not necessarily appear to affect the admissibility of that evidence in further proceedings against Carter at the trial court. Thus, because Carter’s plea was conditional and he was successful on appeal on the reserved issue, it results in his plea having to be vacated and the case remanded for further proceedings.

In Carter’s second assignment of error, he requests this court to review the record for errors patent. This request is unnecessary since such a review is made automatically in all criminal cases. State v. Bryant, 29,344 (La.App.2d Cir.05/07/97), 694 So.2d 556. No such errors were found.

Conclusion

For the foregoing reasons, we reverse the trial court’s order denying Reuben Carter’s motion to suppress his statement. Further, we vacate Carter’s conviction and sentence and remand this case to the trial court for further proceedings not inconsistent with this opinion and other provision of law.

CONVICTION AND SENTENCE VACATED; JUDGMENT DENYING MOTION TO SUPPRESS REVERSED; MATTER REMANDED FOR FURTHER PROCEEDINGS.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We commend the assistant district attorney for adhering to the ethical duties under Rules 3.3 and 3.8 of the Rules of Professional Conduct and admitting the noted error.


text:
    FOX ELECTRIC, L.L.C., Plaintiff-Appellee v. Ali MOGHIMI, Defendant-Appellant.
    No. 41,197-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2006.

      James M. Stephens, Winnsboro, Raymond L. Cannon, Tallulah, for Defendant-Appellant.
    Boles Law Firm by L. Scott Patton, Monroe, for Plaintiff-Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

| tDefendant, Ali Moghimi, appeals a default judgment rendered against him by the Monroe City Court, Parish of Ouachi-ta, State of Louisiana, in a suit to recover a debt on an open account. In light of the legislation implemented in response to Hurricanes Katrina and Rita suspending and extending legal deadlines, we vacate the judgment and remand for a trial on the merits.

FACTS

On August 25, 2005, appellee, Fox Electric, LLC (“Fox”), filed a suit on open account naming as defendant, Ali Moghimi, alleging that Moghimi owed $2,940.00 for electrical contracting services provided, along with $53.00 in filing fees for a statement of lien and privilege together with attorney fees and legal interest. On August 26, 2005, personal service was made upon Moghimi.

On September 7, 2005, Fox filed a pleading seeking a default judgment. On September 9, 2005, Moghimi, pro se, filed a petition for Enlargement of Time requesting a 60-day extension to answer explaining that Moghimi’s local attorney was not available; all his files had been forwarded to his contact person in New Orleans in hopes of retaining other legal counsel; and, due to the hurricane he was unable to reach anybody in New Orleans, including his contact person. On September 12, 2005, the trial court granted a 10-day extension. On October 3, 2005, Moghimi was served with an order extending the delay for answering by 10 days. On 12October 4, 2005, Moghimi, pro se, again requested a 60-day extension, this time based on Executive Order KBB No.2005-32 establishing emergency suspension of legal deadlines, signed by Governor Blanco in response to the hurricanes. However, the trial court denied the request.

On October 20, 2005, the trial court signed the default judgment, and recognized Fox’s Lien and Privilege against Moghimi’s residence. Moghimi was personally served with the judgment on October 21, 2005. On October 27, 2005, Moghi-mi, pro se, filed a Motion for New Trial asserting that the Executive Orders suspended all legal deadlines and therefore the default judgement should be set aside. On the same day, Moghimi also filed an Answer and a Reeonventional Demand. On November 4, 2005, Fox filed an Answer to Reeonventional Demand. A Writ of Fieri Facias (“Fi Fa”) was issued on November 14, 2005, and cash was seized from Moghimi’s residence on November 17, 2005, to satisfy Fox’s judgment. On November 21, 2005, Donald Studer enrolled as Moghimi’s counsel and filed a Motion For Order Recalling the Writ of Fi Fa.

On December 6, 2005, a hearing was held on Moghimi’s Motion for New Trial and Rule to Recall the Writ of Fi Fa. The trial court denied the Motion for New Trial, and stayed the Writ of Fi Fa pending the timely filing of an appeal. Fox deposited $4,211.46, representing funds seized from Moghimi, into the registry of court. This appeal ensued.

| oLAW AND DISCUSSION

Moghimi argues that the Governor’s Executive Orders (“Executive Orders”) suspending legal deadlines due to Hurricanes Katrina and Rita apply to the instant ease and therefore the trial court erred in rendering a default judgment. Fox maintains that the default judgment was correctly rendered and believes the Executive Orders were enacted primarily to apply to lawsuits in the southern parts of Louisiana. Furthermore, Fox argues that Moghimi had the burden to prove he was adversely affected by the hurricanes.

This court recognizes the period of uncertainty and instability our judicial system experienced during the aftermath of the hurricanes. Because of the judicial climate and as we have commented before, “when dealing with a pro se litigant, it is incumbent upon the members of the bar to well represent their profession and behave with the utmost professionalism so as to avoid any appearance of attempting an unfair advantage over their pro se adversary.” Youngblood v. Lee, 40,314 (La.App.2d Cir.11/02/05), 914 So.2d 1186, 1189, writ denied, 926 So.2d 522 (La.04/17/06). It is generally true that when a defendant fails to answer in the time prescribed by law a default judgment may be rendered against him. See La. C.C.P. art. 4904. However, given the Executive Orders and circumstances, the case at bar should be looked at in context.

Louisiana R.S. 9:5821(A) clearly sets forth the purpose of the suspension of legal deadlines in response to the hurricanes, codifying the Executive Orders, and states:

I ¿The legislature finds that Hurricanes Katrina and Rita created a statewide emergency disrupting and forcing the closure of certain courts and public offices and further resulting in the displacement of courts, offices, clients, and counsel. This Chapter is enacted for the benefit and protection of the state as a whole and its citizens, and to prevent injustice, inequity, and undue hardship to persons who were prevented by these hurricanes from timely access to courts and offices in the exercise of their legal rights, including the filing of documents and pleadings as authorized or required by law. Therefore, this Chapter shall be liberally construed to effect its purposes. (Emphasis added.)

Furthermore, La. R.S. 9:5822(A) states, in pertinent part, that:

All prescriptions, including liberative, acquisitive, and the prescription of non-use, and all peremptive periods shall be subject to a limited suspension and/or extension during the time period of August 26, 2005, through January 3, 2006; however, the suspension and/or extension of these periods shall be limited and shall apply only if these periods would have otherwise lapsed during the time period of August 26, 2005, through January 3, 2006.

(Emphasis added.) In addition, the supreme court has upheld other extensions of prescription periods stemming from the hurricanes. See State of Louisiana v. All Property and Casualty Insurance Carriers Authorized and Licensed to Do Business in the State of Louisiana, 2006-2030 (La.08/25/06), 937 So.2d 313.

We acknowledge that, in the instant case, at the time of the proceedings Executive Order No. KBB 2005-67 was in effect, and applicable, which extended the initial suspension to November 25, 2006. We also note that the Louisiana Supreme Court, in the same order, set forth a temporary procedure for courts to lift or shorten the suspension in appropriate cases. Here, the temporary procedure was not followed, and therefore did not effect the suspension period set forth in the Executive IfiOrder. Furthermore, every Executive Order in response to the hurricanes made clear that it applied statewide, and not only to those in the “southern part of the state” as suggested by Fox.

Nonetheless, since it is now clear that the suspension was in effect on the date that initial service was made on Moghimi, the action taken subsequent to the service is akin to a premature default judgment. Here, the prescribed period to answer had been suspended. Since the 10-day delay provided by La. C.C.P. Art. 4903 had not expired, the default judgment was premature and therefore null. Cardone v. G & R Service Center, Inc., 360 So.2d 244 (La.App. 1st Cir.1978). Because we determine that the first assignment of error is dispos-itive of the matter on appeal, we pretermit discussion of plaintiffs other assignments of error. Moghimi further seeks an order cancelling Fox Electric’s lien. Given the underlying facts, the trial court must conduct a trial on the merits and dispense with the cancellation of the lien at that time. See generally Mayeaux v. McInnis, 2000-1540 (La.App. 1st Cir.09/28/01), 809 So.2d 310, writ denied, 810 So.2d 1165 (La.03/08/02).

CONCLUSION

For the foregoing reasons, we find the default judgment prematurely entered and therefore null. We hereby set aside the default judgment, and remand for trial on the merits. Costs of this appeal are assessed against appellee, Fox Electric.

REVERSED AND REMANDED.

      . A Motion for New Trial is the proper procedural mechanism as provided by La. C.C.P. art. 4907(B) in response to the default judgment.