author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Leighann, wife of and William OVERBY v. Tremaine WILLIAMS, First American Insurance Company, The City of New Orleans and Audubon Insurance Company.
    No. 06-CA-950.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      W. Chad Stelly, Blake G. Arata, Jr., C. Perrin Rome, III, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    C. Kelly Lightfoot, Attorney at Law, Metairie, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   EDWARD A. DUFRESNE, JR., Chief Judge.

| gThis is an appeal by William Overby and his wife, Leighann, plairitiffs-appel-lants, from a declaratory judgment in favor of Audubon Insurance Co., defendant-appellee, holding that an automobile insurance policy issued by Audubon contained a valid rejection of uninsured/underinsured (UM) coverage. For the following reasons we affirm that judgment.

The underlying facts are these. William Overby, an employee of A.H. Guthans Co., Inc., was driving a company truck in September of 2000 when he was broadsided by an underinsured driver. He and his wife Leighann sued, inter alia, Audubon Insurance Co., the fleet insurer of Guthans, Inc., alleging that the policy provided UM coverage: Eventually, cross-motions for declaratory judgment were filed, and the trial, judge granted that of Audubon, holding that a valid waiver of UM coverage had been perfected. This appeal followed.

|sBased on affidavits, depositions and copies of the policy at issue, the following facts were shown to be undisputed. A.H. Guthans Co., Inc., a mechanical contracting firm, is a closely held corporation owned by A.H. Guthans, Jr., who is also its president. In 1998 Guthans bought a used Toyota flat bed truck and paid for it with a corporate check. The title of the truck was issued to A.H. Guthans, Jr. The vehicle was insured and listed under a fleet policy by Audubon in the name of A.H. Guthans Co., Inc. Nowhere in the policy is Guthans named individually as an “insured.” A waiver of UM coverage in valid form was initialed “AHG,” and signed “A. H. Guthans, Jr., President.”

Guthans gave an initial deposition in which he said that the truck was leased to the corporation. In a second deposition he said that the question of a lease came up only after the litigation began and was one of two options he considered to resolve the potential problem of ownership of the truck. The other option, which he eventually chose, was to correct the title to show the corporation as owner, even though this involved payment of additional taxes. No lease agreement was shown to exist. He also said in the second deposition that he never considered the question of ownership until it came up in the suit. He noted that he had previously deemed the truck to be owned by the corporation because corporate funds were used to buy it, all maintenance was done by the corporation, it was insured by the corporation, and it was used exclusively for corporate business. He added that he had never driven the vehicle and neither had any member of his family.

Plaintiffs’ basic argument here is that because the title to the truck was in Gu-thans name individually, the waiver of UM coverage was invalid because not also signed by Guthans individually. They rely chiefly on Martin v. Clanton, 626 So.2d 909 (La.App. 5th Cir.1993) for the principle that when a vehicle is leased, both the lessee and the lessor must execute the UM waiver form for it to be valid. |/There, the employer leased its employee’s vehicle and paid the insurance premium, and then allowed the employee to use it for both business and personal purposes. Under the plan the employer-lessee signed the waiver of UM coverage, but the employee-lessor not only did not sign but there was a question of whether he was given an opportunity to do so. The employee-lessor’s wife was in an accident in the automobile and sought UM coverage, but this was denied on summary judgment. In reversing, a panel of this court noted that public policy required that the lessor be given an opportunity to reject UM coverage. Because the record was ambiguous on this point, the court ruled that there was an issue of fact that had to be resolved by trial, and therefore summary judgment was improperly granted. It therefore set aside the summary judgment and remanded the case for further proceedings.

In the present case, there was no lease arrangement. Moreover, the evidence unambiguously showed that the truck was paid for by the corporation and that Gu-thans’ name, rather than that of the corporation, was inadvertently placed on the title. There is no ambiguity as to whether Guthans had an opportunity to consider UM coverage. He initialed and signed the waiver form, at the time he believed the truck to be the property of his corporation, and the policy was in the corporate name.

Considering all of the above factors, we conclude that the UM waiver was valid and that the district court judge correctly so found. We therefore affirm the declaratory judgment in favor of Audubon Insurance Co.

AFFIRMED.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge.

license: Public Domain

text:
    Virginia B. NOLAN, Patricia Leche Miller, and Norman P. Leche, Jr. v. HIGH GRASS, LLC and Brian L. Caldwell.
    No. 07-CA-80.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      Robert L. Eddy, III, Attorney at Law, Metairie, Louisiana, for Plaintiffs/Appellants.
    Christopher H. Riviere, Eric L. Tros-clair, Law Office of Christopher H. Rivi-ere, Thibodaux, Louisiana, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

1 gPlaintiffs/appellants, Virginia B. Nolan (“Nolan”), Patricia Leche Miller (“Miller”), and Norman P. Leche Jr. (“Leche”), appeal a summary judgment in favor of defendants/appellees, High Grass, LLC (“High Grass”) and Brian L. Caldwell (“Caldwell”). For the reasons to follow, we dismiss the appeal and remand.

Nolan, Miller, and Leche filed a Petition for Rescission of Sale of certain immovable property located in Lafourche Parish. It was alleged that Jefferson Parish was the proper venue because the sale contracts were executed, and Caldwell’s actions took place, in that parish. Briefly, a tract of land known as the “Leche Tract” in La-fourche was co-owned by a number of people, including the parties. Several members of the Caldwell family, who were co-owners, filed a partition suit in Lafourche. The property was ordered to be sold at public auction. On the day before the scheduled auction, Nolan, Miller, and Leche sold their (.¡respective fractional shares to High Grass. At those sales, High Grass was represented by co-owner Caldwell. Following the sheriffs auction, Nolan, Miller, and Leche determined that, based on the sale price of the tract obtained by the sheriff, the monies received by them from Caldwell were far less than the actual value of their shares of the property. They sought to have their sales to High Grass rescinded.

In the petition, it was alleged that the sales were null on two grounds. According to the petition, High Grass did not exist at the time that Nolan, Miller, and Leche sold their shares of the property. Lesion beyond moiety was also claimed. Finally, it was urged that, if the sale could not be rescinded, Caldwell owed Nolan, Miller, and Leche the difference between the price they were paid and their perceived actual interest based on the sheriffs sale.

Caldwell and High Grass filed a Motion for Summary Judgment, arguing that Nolan, Miller, and Leche could not prove lesion beyond moiety. Following oral argument, on May 9, 2006, the trial court granted the motion with Reasons. On Motion for New Trial and Alternatively for Amending or Supplemental Judgment, on June 30, 2006, the trial court amended its earlier judgment to specify that only the claim based upon lesion beyond moiety was dismissed, stating “however, any other claims of the plaintiffs seeking rescission or a declaration of nullity of the sales agreements based upon any grounds other than leision [sic] beyond moiety are not being dismissed.”

Nolan, Miller, and Leche filed a Motion and Order to Appeal from the judgment of May 9, 2006.

The jurisprudence provides that the granting of a new trial sets aside the original judgment, which cannot thereafter afford the basis of a plea of res judicata |4or an appeal. The judgment from the new trial becomes the final judgment from which an appeal may be taken. Therefore, a judgment that is set aside by a later judgment granting a new trial or a motion for judgment notwithstanding the verdict cannot form the basis for a later appeal because the original judgment is superseded by the later judgment. Accordingly, a court of appeal has no jurisdiction to entertain an appeal from a judgment that has been recast by the trial court because of post-trial motion practice.

Thus, it appears that this Court is without jurisdiction to entertain the current appeal. In addition, the judgment in question is a partial judgment, which is not appealable. According to LSA-C.C.P. art. 1915(B), when a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

The judgment in this case, as it pertains to claim of lesion beyond moiety, does not adjudicate all the claims of all of the parties. Further, the trial court did not designate the judgment as final for purposes of immediate appeal, nor did it make a determination that there is no just reason for delay. Thus, on these additional grounds, the judgment before us is not appealable.

For these reasons, the appeal is dismissed, and the matter is remanded to the trial court for further proceedings.

APPEAL DISMISSED; REMANDED.

      . In re Transit Management of Southeast La., Inc., 2004-0632 (La.App. 4 Cir. 10/20/06), 942 So.2d 595.

      . Id.

      . See, e.g., Slack v. Alcor Group, L.L.C, 04-928 (La.App. 5 Cir. 12/3/04) 893 So.2d 101.


author: THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Felton D. LAGARDE.
    No. 07-KA-123.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Donald Rowan, Assistant District Attorneys, Gret-na, LA, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   THOMAS F. DALEY, Judge.

| pPefendant, Felton D. Lagarde, appeals his conviction for armed robbery, a violation of LSA-R.S. 14:64. On appeal, he assigns five errors of the trial court:

1. The trial court erred by denying the Motion for Mistrial.
2. The trial court erred by denying the Motion for New Trial.
3. The trial court erred by imposing an excessive sentence.
4. The trial court erred by failing to comply with the sentencing mandates of La.C.Cr.P. art. 894.1.
5. Defendant-appellant was denied the effective assistance of counsel as a result of his counsel’s failure to file a motion to reconsider sentence to preserve for appellate review his right to object, on specific grounds, to the excessiveness of his sentence.

After careful consideration of the law and evidence, we affirm defendant’s conviction, and remand for further proceedings.

FACTS

On August 3, 2004, at approximately 11:00 p.m., the victim, Tina Sage, left her employment at Wynhoven nursing home. She drove her Toyota 4-Runner to |spick up her son, who was visiting friends in the Beachgrove neighborhood in Westwego, where they used to live. She looked for her son at Brother’s, which is a food market near the Beachgrove neighborhood and which is where he normally waited for her.

Because her son was not at Brother’s, Ms. Sage drove into the neighborhood. Ms. Sage saw her son at the back of the parking lot. She also saw a man standing on the sidewalk. Ms. Sage’s son put some clothing and other belongings into the vehicle, when the man who had been on the sidewalk asked if Ms. Sage would give him a ride out of the neighborhood. When Ms. Sage told him that her boyfriend was “up front,” he pushed her son out of the vehicle and jumped inside. The man put a gun to her head and told her to get out. Ms. Sage said she heard a “click” and saw something silver in her face. She got out of the car and ran toward a neighbor’s house and called the police. Ms. Sage testified that someone called her cell phone and told her to tell the police that the “boy’s name was Felton Lagarde, and he’s probably heading to the St. Bernard Project.”

At trial, Detective Russo of the Jefferson Parish Sheriffs Department identified State’s Exhibit 22 as the application for a search warrant of the defendant’s property at the Jefferson Parish Correctional Center. The search warrant application contains background information leading up to the defendant’s arrest by Jefferson Parish authorities.

The application indicates that, on August 4, 2004 at 9:00 a.m., Detective Decker of the Jefferson Parish Robbery Division discovered through a computer check that the defendant was arrested at 1:25 a.m. on August 4, 2004 in the 1000 block of St. Ann Street in New Orleans. Detectives Russo and Decker went to New Orleans at 11:00 a.m. to search for the victim’s vehicle, which they found in the 800 block of Rampart Street. The vehicle was towed to the Investigations |4Bureau for processing. Other officers then went to pick the defendant up from New Orleans, where, in his personal property, they discovered a set of keys containing a Toyota key. It was later determined that the key belonged to the victim’s vehicle. At trial, Ms. Sage identified State’s Exhibit 2 as the keys that were in the 4-Runner when it was taken.

Detective Russo testified that,’ during the inventory of Ms. Sage’s vehicle, the police found a .25 caliber Raven Arms handgun and a gray bandanna under the front passenger seat. The police also discovered a pair of black jeans in the back of the vehicle.

When Ms. Sage obtained her vehicle later that week, she discovered that her son’s T-shirt and shorts were missing. She also noticed the clothing in the back seat, but both of her sons told her it was not theirs. She also found a crack pipe, or an “iron thing” with several lighters in her car. She placed everything inside of a bag and brought it to the police station. Ms. Sage described her son’s missing clothing to the police. Detective Russo recalled that the defendant had been wearing a similar outfit at the time he was booked in New Orleans.

On September 22, 2004, the police executed a search warrant on the defendant’s possessions at the Jefferson Parish Correctional Center and found some clothing, which Ms. Sage identified at trial as the clothing that her son was placing inside her car immediately before the armed man jumped inside.

Ms. Sage testified that she did not get a good look at the armed man and could not identify anyone from a photo lineup. She also was unable to make a positive identification of the defendant at trial.

On August 4, 2004, the defendant made a tape-recorded statement to Sergeant Larry Dyess of the Jefferson Parish Sheriffs Office after being advised of Land waiving his rights. In his statement, the defendant said that he and a white female had been smoking crack in the crack house in an abandoned area in the back of Bea-chgrove. The defendant said that he and the woman left the house at the same time, and he asked her for a ride. The woman refused and said something about her husband. The defendant said her refusal made him feel frustrated. The defendant entered the back seat and grabbed the keys and he “tussled” with her after he entered the car. When the woman jumped out, the defendant sat in the driver’s seat and drove away. The defendant said he had a gun in his pocket, but he denied pointing the gun at the woman. The defendant said he drove across the river and went downtown.

Sergeant Dyess testified he believed the defendant minimized his involvement in the crime, but stated that the police believed the defendant was the perpetrator because the defendant supplied facts that only the perpetrator would know.

ASSIGNMENTS OF ERROR NUMBER ONE AND TWO

In these Assignments of Error, the defendant contends that the trial judge should have granted his Motion for a Mistrial and thereafter, his Motion for a New Trial because the State introduced inadmissible evidence of other crimes. Specifically, the defendant contends that a mistrial was warranted when the jury viewed an edited version of the defendant’s statement that failed to omit a reference to the defendant’s arrest for second degree murder. The defendant filed a Motion for a New Trial on the same basis. The State responds that the defendant failed to preserve this claim for appellate review because he viewed the statement | ^before the jury saw it and made no objection. The State further responds that the trial judge did not abuse his discretion in denying either motion.

Immediately before questioning Sergeant Dyess about the defendant’s statement, the prosecutor initiated a bench conference that was not transcribed. However, it is clear from the record that the purpose of the bench conference was to remove references in the statement to the defendant’s arrest for second degree murder. After the bench conference, the State moved to introduce the complete transcribed statement (S — 25) and the tape-recorded statement. The defendant stated he had no objection, other than his objection at the suppression hearing. The State then moved to introduce the edited transcribed statement (S-25A) for “record purposes,” to which the defendant voiced no objection.

Thereafter, the court informed the jury that there were some “things” in the audio tape and the transcribed statement that had been removed because they were inadmissible. The prosecutor then distributed copies of the edited statement to the jury and began to play the tape.

When the prosecutor, Mr. Rowan, realized that there was a reference to the second degree murder arrest that had not been deleted, he said to turn off the tape. The prosecutor pointed out the reference to the defendant’s attorney, Mr. Benz, who then moved for a mistrial. The attorneys approached the bench, where there was further discussion:

MR. ROWAN:
I listened to it, I just didn’t catch it. I took everything else out. That’s what happens when you’re doing it by yourself.
What do you want to do, Judge?
JjTHE COURT:
I don’t think I have any choice.
MR. BENZ:
I apologize, I should have caught it, but I didn’t.
THE COURT:
If it wouldn’t have been — if it wasn’t in this, I think it would be all right, because I didn’t hear what he said.
Well, it’s in here, I’m going to have to grant his motion.
MR. BENZ:
I apologize, Donnie, I mean, I should have caught it. MR. ROWAN:
That’s why I wanted to take the jury out so we could go over it. I should have insisted on that. But, I didn’t catch it.

The jury was removed from the courtroom while the attorneys argued the mistrial motion. The defendant stated that he had filed a motion to have references to second degree murder removed from the statement, but admitted that one reference was overlooked by the defense and the State as follows:

MR. BENZ:
Unfortunately, both the tape and the written transcript, both myself and the ... Assistant District Attorney missed the fact that one, two three four paragraphs down on the statement it says, Okay and did I advise you [that] you were under arrest for second degree homicide? It wasn’t clear on the tape, but the jury has seen the statement, they have been given a copy of the statement, and I’m sure as the tape was played, they followed along and read, and they had to read the fact that he was arrested for second degree homicide in this matter, and I’d ask for a mistrial.

The prosecutor responded that it was unknown whether or not the jury read along and that any error would be harmless in any event because of the judge’s prior instruction to the jury. The prosecutor pointed out that he had asked if there were any problems with the evidence before it was introduced and the defendant voiced no objection. The trial judge stated that he did not hear the reference in the Raudio tape and said he did not know how far along the jury had read. Thereafter, the prosecutor reiterated that the defendant had not voiced any objection when they had approached the bench prior to playing the tape and the defendant agreed:

MR. ROWAN:
. I.would still, if the Court would admonish them, I believe that would be enough, because as I said, prior to playing the tape I asked to approach to see if there was [sic] any problems with anything, and there wasn’t any, so.
MR. BENZ:
Well, that’s — what the D.A. says is true, and I read through the statement and my concern was more that it stopped at page 4, or page 5, back here, and I didn’t see that, so you know, I missed it. But, you know, I don’t think an admonishment will work, will do, I mean, they’re going to know that he’s arrested for second degree homicide, and the fact that an admonishment of them putting that out of their head, I don’t think is going to happen.

(Emphasis added).

Thereafter, the trial judge denied the mistrial motion and admonished the jury as follows:

THE COURT:
Ladies and gentlemen, I don’t know how far you got to reading along with that statement, but there was something in there that doesn’t pertain to this case. If you read that part of it, you are to completely disregard anything that doesn’t involve this charge of armed robbery that we’re trying today. All right?
All right. Get to your right spot.

The tape was played, but no transcripts were handed out to the jury.

The State contends that the defendant is not entitled to review of these assignments because he voiced no objection after reviewing the statement at the bench. To preserve the right to appellate review of an alleged trial court error, a | aparty must state an objection contemporaneously with.the occurrence of the alleged error, as well as the grounds for the objection. The purpose of the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity, allowing him the opportunity to make the proper ruling and correct any claimed prejudice to the defendant. This prevents the defendant from gambling for a favorable verdict at trial and then later utilizing appellate review to correct errors that might easily have been corrected by the trial judge.

Although the defendant read the redacted statement and voiced no objection before it was played or shown to the jury, he moved for a mistrial as soon as the issue was brought to his attention. Accordingly, the question of whether or not the trial judge erred in denying the mistrial is properly before this Court on appeal.

On appeal, the defendant contends that the trial judge was required to grant a mistrial under Article 770. The State contends that the trial judge had the discretion to deny a mistrial under Article 771 because the remark was not made in the hearing of the jury. Rather, according to the State, the issue was whether the jury read, not heard, the reference to the defendant’s arrest. Since Article 770 pertains to remarks made within the hearing of the jury, the State contends Article 770 is inapplicable.

A direct or indirect reference to a crime committed or alleged to have been committed by a defendant, as to which evidence would be inadmissible and made within the hearing of the jury by the judge, district attorney, or a court official, during trial or in argument requires a mistrial on motion of the defendant.

As a general rule, Article 770 does not apply to testimony by a state witness, since a witness is not considered a “court official.” However, an impermissible | ^reference to another crime deliberately elicited by the prosecutor is imputable to the State and triggers the rule mandating a mistrial.

In the instant case, the remark was not made by the prosecutor, the judge, or a court official. Further, there is no showing that the prosecutor purposefully introduced the complained of evidence. In fact, the record reflects that both the defendant and the prosecutor inadvertently overlooked the reference in the defendant’s statement that the defendant had been arrested for “second degree homicide.” Therefore, it appears Article 770 is not applicable.

LSA-C.Cr.P. art. 771 provides, in pertinent part;

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

A mistrial is a drastic remedy and, except in instances in which a mistrial is mandatory, is warranted only when trial error results in substantial prejudice to defendant, depriving him of a reasonable expectation of a fair trial. According to LSA-C.Cr.P. art. 775, “[ujpon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the | n courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.”

Whether a mistrial should be granted is within the sound discretion of the trial court, and denial of a Motion for Mistrial will not be disturbed on appeal absent an abuse of that discretion.

In the instant case, the record does not reflect whether the jury had heard or saw the reference to the defendant’s unrelated arrest. However, even if the jury read or heard the brief reference to the defendant’s “second degree homicide” arrest, any error that occurred was harmless. An impermissible reference to other crimes is subject to a harmless error analysis. The test for determining harmless error is whether the verdict actually rendered in the case was surely unattributable to the error.

In the present case, Ms. Sage’s testimony was unwavering in her account of the incident in which her vehicle was taken at gunpoint. Although Ms. Sage could not identify the defendant as the perpetrator, he was arrested the next day wearing the clothing that her son had just put into the vehicle before it was stolen. And Ms. Sage’s keys were in his possession when he was arrested. Further, the defendant admitted that he drove away in the vehicle while armed with a gun, although he denied that he displayed the gun to take the vehicle.

Considering the evidence against the defendant, the guilty verdict was not attributable to any error in the jury’s viewing or hearing the portion of the defendant’s statement that referred to his second degree homicide arrest. Accordingly, the trial judge did not err in denying the Motion for Mistrial.

The defendant also contends that the trial judge erred in denying his Motion for a New Trial made on the same basis. Pursuant to LSA-C.Cr.P. art. 851, “the | ^motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.” The ruling on a Motion for New Trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only where there is a clear showing of abuse of that discretion. Since it does not appear that the defendant was prejudiced by the brief reference to his unrelated arrest, it does not appear that the trial judge erred in denying the Motion for a New Trial. Accordingly, the trial judge did not abuse his discretion in denying the defendant’s Motion for Mistrial or Motion for a New Trial.

ASSIGNMENT OF ERROR NUMBER THREE

The defendant contends that his 99-year sentence is excessive because the trial judge failed to articulate any reasons for the sentence. The State responds that the record supports the sentence.

In this case, the defendant concedes his attorney failed to file or make a Motion to Reconsider Sentence. According to LSA-C.Cr.P. art. 881.1(E), the “[flailure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” Generally, the defendant’s failure to make a specific objection at the time of sentencing or to file a written Motion to Reconsider precludes review of a sentence on appeal. However, this Court routinely reviews sentences for constitutional ex-cessiveness even absent a defendant’s compliance with Article |1S881.1. Therefore, the defendant’s sentence is reviewed for constitutional excessiveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering.

In reviewing a sentence for exces-siveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing the sentence.

In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed, even when the trial judge does not provide reasons for the sentence.

The defendant was convicted of armed robbery, which is punishable by imprisonment at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:64(B). The trial judge imposed the maximum sentence as follows:

|mTHE COURT:
Mr. Lagarde, you’ve been convicted by a jury of armed robbery. You have a terrible record, you have many previous convictions, so on this case the Court is going to sentence you to ninety nine [sic] years in the custody of the Department of Corrections, giving you credit for time served. Without benefit of probation, parole, or suspension of sentence.

Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged, and the worst type of offender. Prior criminal activity is one of the factors to be considered by the trial judge in sentencing a defendant.

Although he was just 22 years old at the time of the instant offense, the record reflects the defendant was classified as a “Code 6” adult and juvenile offender and that he had two prior convictions. During the suppression hearing, the defendant admitted that he had prior convictions for simple burglary and for unauthorized use of a vehicle.

Our state’s jurisprudence reflects that the maximum penalty for armed robbery has been imposed under similar circumstances. In State v. Douglas, the Louisiana Supreme Court found a 99-year sentence was not excessive for a defendant who robbed the victim at gunpoint when he responded to the defendant’s knock on his door. The defendant pushed a pistol into the victim’s stomach, entered the house, and ordered the victim to hand over his wallet. The defendant had two prior convictions for simple burglary and one for possession of heroin, as well as other less serious convictions.

liBThe Douglas court recognized the seriousness of a 99-year sentence, but found the judge did not abuse his discretion as follows:

This court does not lightly consider the matter of a 99-year sentence imposed without hope of release on parole. There may be sound arguments against the frequent use of such sentences, but these arguments address themselves to the reasoned discretion of the sentencing judge. The function of the reviewing court is not merely to substitute this court’s judgment for that of the trial court, but to determine whether the court below manifestly abused its discretion. In this case we cannot find such abuse.

Douglas, at 1267-1268.

Citing Douglas, this Court, in State v. Jack, held that a 99-year sentence was not excessive where the 20-year-old defendant robbed a snowball stand with an inoperable gun. The Jack court noted that the victim and the apprehending officer were placed in fear of bodily harm and both believed the gun to be loaded. This Court noted that other people, including the defendant, could have been harmed if anyone had attempted to intervene in the situation. The defendant had an extensive and serious juvenile record with numerous adult arrests and adult convictions for theft and burglary.

In State v. Falkins, this Court recognized a review of the jurisprudence revealed that 99-year sentences imposed upon defendants convicted of armed robbery had been previously upheld in many cases, including cases in which the victims were not physically injured. The Fal-kins court held that three concurrent 99-year sentences and one 110-year enhanced sentence were not excessive, where four bank tellers were robbed at gunpoint. The Falkins court noted that the defendant and his companion created the risk of death and great bodily harm to the employees and customers who were in the bank at the time of the robbery. See |1fialso, State v. Weeks, where the court held a 99-year sentence was not excessive for a defendant who robbed a bank teller at gunpoint, and State v. Wilson, where the court found a 99-year sentence was not excessive for a defendant who robbed the victim at gunpoint, in light of the defendant’s extensive arrest record and prior convictions.

Armed robbery has been recognized as a serious offense against the person. Herein, the defendant pushed the victim’s son out of the vehicle and ordered Ms. Sage out of her vehicle at gunpoint, placing the lives of Ms. Sage and her son at risk of death or great bodily harm.

The Louisiana Supreme Court has stated that the question on review is not whether another sentence would have been more appropriate, but whether the trial court abused its broad sentencing discretion. While another judge might have weighed the circumstances in this case differently, the question on review is whether the trial judge abused his discretion in this case, not whether another sentence might have been more appropriate. We find that the trial judge did not abuse his discretion in sentencing Lagarde.

ASSIGNMENT OF ERROR NUMBER FOUR AND FIVE

In these assignments, the defendant argues that his attorney was ineffective because he failed to file a Motion to Reconsider on the basis that the trial judge did not articulate a basis for the sentence pursuant to LSA-C.Cr.P. art. 894.1. The State responds that the failure to file a Motion to Reconsider Sentence did not result in ineffective assistance of counsel.

A claim of ineffective assistance of counsel is most appropriately addressed through an Application for Post-Conviction Relief rather than direct appeal, so as |17to afford the parties an adequate record for review. Only when the record contains sufficient evidence to decide the issue and the issue is properly raised by assignment of error on appeal, may it be addressed in the interest of judicial economy. In the present case, the record is adequate to address defendant’s claim in this regard.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, Section 13 of the Louisiana Constitution of 1974. When a defendant raises a claim of ineffective assistance of counsel, that claim is evaluated under the two-prong test established Strickland v. Washington. The defendant must show (1) that defense counsel’s performance was deficient, and (2) that the deficiency prejudiced the defendant. To show prejudice under this test, the defendant must demonstrate that the outcome of the trial would have been different, but for counsel’s unprofessional conduct.

The mere failure to file a Motion to Reconsider Sentence does not in and of itself constitute ineffective assistance of counsel. However, if a defendant can “show a reasonable probability that, but for counsel’s error, his sentence would have been different,” a basis for ineffective assistance claim may be found.

Because the defendant did not file a Motion to Reconsider Sentence, he is not entitled to a review of his argument concerning the trial court’s non-compliance with Article 894.1, which falls under the category of statutory excessiveness. However, because the defendant contends that his trial attorney was ineffective by | ^failing to properly preserve this claim for review under LSA-C.Cr.P. art. 881.1, the defendant’s complaint in this regard is addressed here.

Louisiana Code of Criminal Procedure Article 894.1(C) requires the trial judge to state for the record the considerations taken into account and the factual basis when imposing sentence. But, when there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in LSA-C.Cr.P. art. 894.1 does not require a remand for re-sentencing.

The trial judge’s reasons, recited above, are similar in scope to the trial judge’s reasons in State v. Douglas, supra, which are as follows:

Okay, the court has satisfied itself with having looked at the rap sheet of the defendant, and the previous convictions involved in this man’s criminal history, and the court is satisfied that Mr. Douglas is, in the court’s opinion, an incorrigible, violent criminal, and at this point the court will sentence Mr. Charles R. Douglas, also/known/as Robert Charles Douglas, or whatever the case may be, to the Louisiana Department of Corrections to serve, at hard labor, a period of time in the amount of ninety-nine years, and will remand the prisoner for the execution of that sentence. May God bless your soul. Okay, remand the prisoner. And that’s without the probation or parole or suspension of sentence.

The Douglas court stated, “[d]espite the brevity of his reasons, the trial judge adequately complied with the sentencing guidelines in C.Cr.P. art. 894.1.” The Douglas court accepted the trial judge’s assertion that he based the lengthy sentence on the defendant’s prior criminal history and the violent manner in which the defendant perpetrated the offense in question. Based on Douglas, the trial judge’s reasons in the present case demonstrate adequate compliance with the sentencing guidelines in Article 894.1.

The record contains a factual basis for the sentence imposed, as discussed in the preceding assignment involving the constitutional excessiveness of the |1flsentence. The defendant has not shown a reasonable probability that, but for his attorney’s failure to file or move for reconsideration of his sentence, his sentence would have been different. As such, the defendant has failed to show ineffective assistance of counsel. This Assignment of Error has no merit.

ERROR PATENT DISCUSSION

Although the commitment reflects that the trial judge informed the Lagarde of the prescriptive period for filing post-conviction relief, as required by LSA-C.Cr.P. art. 930.8(C), the transcript does not so reflect. When there is a conflict between the transcript and the commitment, the transcript controls. Therefore, the matter is remanded for the trial judge to inform the defendant of the prescriptive period for filing for post-conviction relief by sending appropriate written notice to the defendant within ten days of the rendition of this Court’s opinion and by filing written proof in the record that the defendant received the notice.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . It appears from the context of Ms. Sage’s testimony that she meant in the front of the neighborhood.

      . At a bench conference, the statement was redacted to omit references to the defendant's arrest for second degree murder. However, one reference was overlooked and the defendant moved for a mistrial. This is the subject of the first two assignments.

      . The police report reflects that the victim was a white female.

      . The record does not reflect how long the tape played before the prosecutor said to turn it off. Rather, the record reflects, “THE TAPE WAS STARTED AND TURNED OFF.”

      . The transcript of the redacted statement re-fleets that Sergeant Dyess asked the defendant if he had been advised that he was “under arrest for Second Degree Homicide and that [he was] under investigation in reference to Armed Robbery?”

      .For purposes of accuracy, it is noted that there are several aspects of the defendant’s brief that are not supported by the record. The defendant asserts that the judge had made a pre-trial ruling to preclude any references to the second degree murder charge. Howevér, the record contains no pre-trial motion or ruling on this matter. The defendant also asserts that he objected as soon as the portion of the tape containing the inadmissible reference was played. However, the record reflects that the prosecutor stopped the tape, brought the matter to the defendant’s attention, and then the defendant moved for a mistrial. Finally, the defendant asserts that the State apologized'for the error, when the record reflects that it was actually the defendant’s attorney who apologized to the prosecutor for overlooking the reference.

      . See LSA-C.Cr.P. art. 841(A); State v. Gaal, 01-376 (La.App. 5 Cir. 10/17/01), 800 So.2d 938, 949, writ denied, 02-2335 (La.10/3/03), 855 So.2d 294.

      . State v. Williams, 04-608 (La.App. 5 Cir. 11/30/04), 889 So.2d 1093, 1100, writ denied, 05-0081 (La.4/22/05), 899 So.2d 559.

      . See, LSA-C.Cr.P. Art. 770(2); State v. McGuffey, 486 So.2d 1101, 1107 (La.App. 2 Cir.1986).

      . State v. Jones, 00-162 (La.App. 5 Cir. 7/25/00), 767 So.2d 862, 866, writ denied, 00-2484 (La.6/22/01), 794 So.2d 783.

      . State v. Paul, 05-612 (La.App. 5 Cir. 2/14/06), 924 So.2d 345, 352.

      . State v. Paul, supra.

      . State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, 102; State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 785, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866.

      . Id.

      . State v. Badeaux, 01-618 (La.App. 5 Cir. 11/27/01), 802 So.2d 905, 908, writ denied, 01-3403 (La.10/4/02), 826 So.2d 1121.

      . State v. Fisher, 03-326 (La.App. 5 Cir. 7/29/03), 852 So.2d 1075, 1084, writ denied, 03-2545 (La.5/14/04), 872 So.2d 510.

      . State v. Fisher, supra.

      . State v. Lobato, 603 So.2d 739, 751 (La.1992).

      . State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 879.

      . State v. Allen, 868 So.2d at 880.

      . State v. Uloho, 04-55 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, 933, writ denied, 04-1640 (La.11/19/04), 888 So.2d 192.

      . State v. Guzman, 95-444 (La.App. 5 Cir. 11/15/95), 665 So.2d 512, 516, writ denied, 95-2853 (La.2/28/96), 668 So.2d 366.

      . State v. Washington, 414 So.2d 313, 315 (La.1982); State v. Lemon, 06-721 (La.App. 5 Cir. 1/30/07), 951 So.2d 1177, p. 4.

      . A reference used by the Jefferson Parish Sheriff's Office for “career criminals.” See also State v. Fairley, 02-168 (La.App. 5 Cir. 6/26/02), 822 So.2d 812; State v. Pierce, 02-1267 (La.App. 5 Cir. 4/8/03), 846 So.2d 55; State v. Carter, 96-358 (La.App. 5 Cir. 11/26/96), 685 So.2d 346.

      . 389 So.2d 1263 (La.1980).

      . Id. at 1264-1265.

      . Id. at 1267.

      . 448 So.2d 725 (La.App. 5 Cir.1984).

      . Id. at 728.

      . 04-250 (La.App. 5 Cir. 7/27/04), 880 So.2d 903, 906, writs denied, 04-2220 (La.1/14/05), 889 So.2d 266 and 04-2171 (La.5/20/05), 902 So.2d 1045.

      . Id. at 912.

      . The defendants initially received four 99-year sentences, but also received an enhanced, 110-year sentence on one of the counts as second felony offenders, to be served concurrently with the three 99-year sentences. Id. at 912.

      . 449 So.2d 1158, 1159, 1161 (La.App. 2 Cir.1984).

      . 452 So.2d 773, (La.App. 4 Cir.1984)

      . See, State v. Francois, 01-807 (La.App. 5 Cir. 4/10/02), 817 So.2d 213, 216.

      . State v. Jones, 99-2207 (La. 1/29/01), 778 So.2d 1131, 1133.

      . See, State v. Jones, supra.

      . State v. Fairley, 02-168 (La.App. 5 Cir. 6/26/02), 822 So.2d 812, 816.

      . Id.

      . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Strickland v. Washington, 466 U.S. at 687, 104 S.Ct at 2064.

      . State v. Fairley, supra.

      . Id.

      . State v. Fairley, citing State v. Balser, 01-317 (La.App. 5 Cir. 7/30/01), 792 So.2d 156, 158.

      . See, Fairley.

      . State v. Sanders, 98-855 (La.App. 5 Cir. 5/19/99), 734 So.2d 1276, 1279, writ denied, 99-1980 (La.1/7/00), 752 So.2d 175.

      . Id.

      . Douglas, 389 So.2d at 1267, fn. 3.

      .The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Lynch, 441 So.2d 732 (La.1983).

      . See, State v. Hutchinson, 02-60 (La.App. 5 Cir. 5/15/02), 817 So.2d 500, 509.


author: CLARENCE E. McMANUS, Judge.

text:
    KREWE OF NEPTUNE, INC. v. The PARISH OF JEFFERSON, Henry Trapani, In His Capacity as Carnival and Special Events Coordinator for the Parish of Jefferson and Harry Lee, in his Capacity as Sheriff for the Parish of Jefferson.
    No. 06-CA-926.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.
    Andre P. Guichard, New Orleans, LA, for Plaintiff/Appellee.
    Golden & Fonte, Kenneth C. Fonte, Me-tairie, LA, for Defendant/Appellant.

      Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   CLARENCE E. McMANUS, Judge.

RPlaintiff, Krewe of Neptune, filed a petition on January 30, 1997, naming as defendants the Parish of Jefferson, Henry Trapani (Carnival and Special Events Coordinator for the Parish) and Harry Lee (Sheriff for the Parish). In its petition, Neptune alleges that it applied to the Parish for a permit to conduct its Carnival parade, however it was advised by Mr. Trapani that a permit would not issue until Neptune paid to Sheriff Lee a fee of $22,000.00 for police protection. Neptune contended that the requirement of payment was illegal and in violation of both state and federal law, and also deprived Neptune of equal protection to’ the extent that other Krewes were not required to pay fees or costs to Sheriff Lee. Neptune sought a mandamus to require the issuance of the parade permit and the provision of police protection.

On January 31, 1997, plaintiff entered into a consent judgment whereby it agreed to deposit into the registry of the court each month all net proceeds from its bingo gaming operations until the sum of $22,000.00 had been deposited into the court. Sheriff Lee was to notify the Office of Carnival and Special Events of his intention to provide parade security, and the Parish was to issue a permit. The consent judgment provided that plaintiffs “hereby confess judgment in favor of ^Sheriff Harry Lee for the sum of $22,000.00, for parade security and traffic control ... subject only to a final and definitive adjudication, or alternatively, consent agreement, determining the Sheriffs legal right and ability to assess a fee to recoup overtime payroll expenses for providing parade security and traffic control.”

On April 25, 2005, Neptune moved for summary judgment, seeking return of the funds deposited into the registry of the court. On July 26, 2005, Sheriff Harry Lee filed an ex parte motion for declaration of abandonment and involuntary dismissal. The trial court granted Sheriff Lee’s motion for dismissal on October 12, 2005, dismissing plaintiffs demands without prejudice. The court ordered that the parties file memorandum regarding disposition of the monies deposited into the registry of the Court.

On April 19, 2006, the trial court rendered judgment in favor of Plaintiff, finding that it was entitled to retrieve the $22,000.00 it deposited into the registry of the court. In its reasons for judgment, the trial court stated that “the clear and concise language of the Consent Judgment provides that Neptune’s confession of judgment was conditioned upon a final determination of the Sheriffs right to assess a fee. However, the Court never rendered a final determination on this issue because the lawsuit was abandoned and dismissed.”

Sheriff Harry Lee has appealed from this judgment of the trial court. In his appeal, appellant argues that the judgment of dismissal is a final judgment that satisfied the requirements set forth in the consent judgment.- It was Neptune’s burden to prove that appellant was not entitled to the deposit and it failed to do so by failing to litigate its suit. Accordingly, since Neptune failed to prove that |4appellant was not entitled to the deposit, Sheriff Lee could request enforcement of the consent judgment and the trial court erred in failing to order that the funds on deposit in the registry of the court be dispersed to Sheriff Lee.

Appellee, Krewe of Neptune, counters that the consent judgment clearly states that the confession of judgment was predicated on “a final and definitive adjudication, or, alternatively, consent agreement, determining the Sheriffs legal right and ability to assess a fee[.]” This judgment does not establish whether the Sheriff or Neptune would adjudicate the constitutionality of the Sheriffs fee. This final and definitive adjudication of the issue of the Sheriffs legal right was never adjudicated as the matter was abandoned. Accordingly, Sheriff Lee is not entitled to the funds Neptune deposited into the registry of the court.

In the case of Sutherlin v. Sutherlin, 05-535, (La.App. 5 Cir. 2/3/06), 930 So.2d 51, 53, this Court defined a compromise agreement in a consent judgment as follows:

A compromise agreement which forms the basis for a consent judgment gets its binding force and effect from the consent of the parties. Nungesser v. Nungesser, 95-2298 (La.App. 1 Cir. 6/28/96), 694 So.2d 312, 314. The interpretation of the consent judgment is the determination of the common intent of the parties. Id. The meaning and intent of the parties is ordinarily determined from the four corners of the instrument. Millet[v. Millet, (La.App. 5 Cir. 10/26/04) 888 So.2d 291, 293], supra. Each provision in the contract is interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. Nungesser, supra. When , the words of a contract are clear and explicit and lead to no absurd consequences, the intent of the parties is to be determined by the words of the contract. Id.

In this case, the consent judgment at issue states that Neptune would deposit the required funds into the registry of the court, and would confess judgment when there was a determination of the Sheriffs legal right to assess a fee. There was no determination of the Sheriffs legal right in this case, and therefore Neptune had not confessed judgment that Sheriff Lee was entitled to the funds deposited.

| ¡^Sheriff Lee argues that abandonment of the action is tantamount to a final judgment on the issues presented, and thus the Sheriffs office is entitled to the funds on deposit. However, we are of the opinion that the judgment of dismissal operates only as a final adjudication of the issue of whether the matter was abandoned, and not on the merits of the underlying issues. The conditions as stated in the consent judgment not having been fulfilled, namely that there was no adjudication of the issue of Sheriff Lee’s authority to assess the fees, the Sheriff has no right to the funds deposited into the registry of the court and Neptune is entitled to their return. The trial court did not err in ordering the Clerk of Court to return the funds that had been deposited into the registry of the court to Neptune.

For the above discussed reasons, the decision of the trial court is affirmed.

AFFIRMED.

      . The plaintiffs' claims against the other defendants, the Parish of Jefferson and Henry Trapani, had been previously dismissed pursuant to an ex parte motion to dismiss filed by them by judgment rendered on July 6, 2004 (ordering dismissal with prejudice), and modified on October 7, 2004 (setting aside the first judgment and ordering that plaintiff’s cause be dismissed without prejudice).

      . In Domonter v. Breaux Bridge Partnership, 99-1226 (La.App. 3 Cir. 2/2/00), 758 So.2d 828, the court noted that an ex parte order dismissing an action due to abandonment did not determine the merits of the plaintiffs action.


text:
    Charles CHAMPAGNE v. PHS INDUSTRIES and CNA Insurance Company.
    No. 07-CA-31.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.
    Jeremiah A. Sprague, Kenneth M. Wag-uespack, Jr., Falcon Law Firm, Attorneys at Law, Marrero, LA, for Plaintiff/Appellant.
    Kevin A. Marks, Randy J. Hoth, Galloway, Johnson, Tompkins Burr & Smith, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.

      Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD and GREG G. GUIDRY.
   CLARENCE E. McMANUS, Judge.

| STATEMENT OF THE CASE

Charles Champagne, claimant, was employed by PHS Industries, Inc. as a pipe fitter. On September 20, 2002, Champagne injured his lower back while in the course and scope of his employment. He was repairing a forklift when he lifted the fork from the floor, it was top heavy and slipped and he caught the full weight with his lower back. As a result, Champagne hurt his lower back. He reported the injury to his supervisor, Donald Lashley. He was then treated at the Occupational Medical Center at West Jefferson Medical Center.

An MRI was performed on October 4, 2002, which revealed a bulge at the L4-5 disc level and herniation at the L5-S1 disc level, causing impingement on the SI nerve root. At the request of CNA Insurance Company, PHS Industries’ workers’ compensation carrier, Champagne was treated by Dr. Michael Grimm at Jefferson Orthopedic Clinic on October 28, 2002. Dr. Grimm reviewed the MRI results and recommended conservative treatment with physical therapy. Dr. Grimm released Champagne to light duty work with maximum lifting restrictions of 10 pounds. Champagne was treated again by Dr. Grimm on December 13, 2002 with complaints that the physical therapy did not relieve the lower back pain. Dr. Grimm prescribed muscle stimulators. Dr. Grimm again treated Champagne on January 29, 2003 and recommended a TENS unit and epidural steroid injections. He also referred Champagne to a neurosurgeon at the Culicchia Neurological Group.

On February 7, 2003, Champagne saw Dr. Meda Colvin of the Culicchia Neurological Group. He was diagnosed with left L-5 radiculopathy and prescribed |aNeurontin. Dr. Colvin also recommended that Champagne lose weight and participate in physical therapy and a psychiatric evaluation.

On March 12, 2003, Champagne saw Dr. Robert Steiner. Champagne claims that an adjuster with CNA contacted him and told him to see Dr. Steiner. CNA and PHS Industries note that Champagne saw Dr. Steiner in 1997 for a prior back injury and chose to return to him for this current back injury. Champagne complained to Dr. Steiner of' low back pain when he bent forward, pain when he lifted his legs, and pain radiating down both legs. He also complained of tingling and numbness in his left leg. Dr. Steiner diagnosed Champagne with radiculopathy secondary to disc herniation at L5-S1. Dr. Steiner recommended a discectomy, which was performed on April 28, 2003 at East Jefferson General Hospital.

Champagne returned to. Dr. Steiner on September 10, 2003 for an exam and Dr. Steiner recommended vocational rehabilitation. A Functional Capacity Evaluation was conducted on November 3 and 5, 2003 at Crescent City Physical Therapy. The evaluation indicated that Champagne could work up to medium duty. A report by Dr. Steiner dated November 3, 2003 stated his work restrictions included no repetitive bending, stooping, twisting, and lifting. Dr. Steiner found that Champagne had reached maximum medical improvement on December 3, 2003. On December 8, 2003, Dr. Steiner released Champagne to light duty work with a 10 pound lifting restriction. Dr. Steiner approved a light duty position for Champagne with PHS, titled Catalogue Assembly Worker.

Champagne returned to work at PHS as a Catalogue Assembly Worker in December 2003. This job required Champagne to sit in a chair and screw nuts on the ends of U-bolts. Champagne claimed he had to lift up to 35 pounds and bend to pick up parts to put onto the table. However, PHS claims he was not required to | ¿bend at all because co-workers placed the U-bolts on the table for Champagne to assemble.

On December 24, 2003, Champagne claims he was involved in a second work related accident. He claims a co-worker, Mike Zeringue, struck him in the side and shoved him into his supervisor, Keith Harrington. Champagne claims he re-injured his lower back as a result of this incident. Champagne reported to Dr. Steiner on January 5, 2004 with complaints of lower back pain and pain in both legs. He was prescribed a lumbosacral corset and Dr. Steiner ordered no work for a week. Champagne allegedly returned to work one week later, but only for a couple of days.

On January 22, 2004, Champagne was examined by Dr. Ralph Katz, an orthopedic doctor. Champagne claimed at trial that Dr. Katz was his choice of an orthopedic surgeon. PHS claims Dr. Katz is his second choice of orthopedic surgeons. Champagne complained to Dr. Katz of low back pain and a burning sensation in his lower left extremity. Dr. Katz recommended an MRI of the lumbar spine and an electromyography and nerve conduction study of the lower left extremity. Dr. Katz found Champagne was disabled from working and recommended epidural steroid injections. On March 31, 2004, Champagne filed a Disputed Claim for Compensation seeking an MRI and EMG test and his choice of an orthopedic physician. Thereafter, an MRI was conducted on May 29, 2004. Dr. Katz reviewed the MRI results on July 22, 2004 and found no evidence of a recurrent disc herniation.

Dr. Steiner reviewed the MRI results on July 8, 2004 and noted Champagne was still at maximum medical improvement and light duty work status because there had been no change in his condition.

| sChampagne then saw his family physician, Dr. Paul Staab, with complaints of pain down both legs, urinary and bowel incontinence. Dr. Staab also administered Coumadin for a blood clot behind Champagne’s knee.

On March 1, 2005, Champagne filed a Supplemental and Amended Claim for Compensation alleging the second work accident on December 24, 2003 had aggravated his medical condition.

Champagne then reported to Dr. Steiner on July 18, 2005 for the bowel and bladder incontinence. He recommended a followup MRI, which was conducted on November 15, 2005. On February 2, 2006, Dr. Steiner reviewed the MRI results and found no disc herniation, stenosis or nerve root compromise. Because this MRI was the same as the May 2004 MRI, Dr. Steiner found that Champagne had reached maximum medical improvement and found that the bowel and bladder symptoms were unrelated to the work accident.

On March 23, 2006, Dr. Katz agreed that Champagne had reached maximum medical improvement and also found that the bladder and bowel symptoms were not related to the work accident. Dr. Katz referred Champagne to a urologist for the unrelated incontinence problems.

Trial was held on March 20, 2006. The workers’ compensation court issued a Judgment on August 25, 2006 finding: 1) Dr. Robert Steiner was Champagne’s choice of physicians as an orthopedic surgeon, and his opinion should be accorded the same weight as any other treating physician, 2) Champagne was determined by his treating physician to not be disabled, and is therefore, not eligible for temporary total disability benefits or permanent total disability benefits, 3) PHS Industries has established the availability of suitable alternative employment for Champagne without wage loss, therefore, Champagne is not eligible for supplemental earnings benefits, and 4) the treating physicians determined- Champagne has reached | r,maximum medical improvement and, therefore, is not entitled to further medical benefits. Champagne now appeals this judgment.

DISCUSSION

On appeal, Champagne argues the trial court erred in finding Dr. Steiner to be his choice of physician as an orthopedic surgeon. Champagne argues that CNA’s adjuster, Keri Robillard, informed him he was to be evaluated by Dr. Steiner after the September 20, 2002 accident. Champagne contends that he did not select Dr. Steiner as his choice of physician and at no time did anyone from PHS Industries of CNA Insurance inform him of his right to choose his own treating physician or his right to fill out a form designating a doctor to be his treating physician. Champagne argues he clearly wanted to be treated by another physician, Dr. Ralph Katz, after the second accident,, and testified at trial that he wanted Dr. Katz to be his choice of physician in orthopedic surgery.

Champagne also argues that he has been determined to be disabled and is entitled to temporary and permanent total disability benefits. He argues he was still disabled when he saw Dr. Steiner in February 2006, after his second accident, and has been disabled since trial. He also argues he was in pain while attempting to work for PHS Industries and has met the burden required under La. R.S. 23:1221(l)(c) that he is physically unable to engage in any employment due to the amount of pain experienced when working, and is thus entitled to temporary total disability benefits or permanent total disability benefits from April 24, 2004 to date and continuing.

Third, Champagne argues he is entitled to supplemental earnings benefits because his employer has not provided alternative work for him that fits the doctor’s restrictions. He claims when he returned to work in December 2003, his task consisted of assembling two pieces of pipe clamps and bolts to be put into ^another bin. He claims this task required him to pick up 35 pounds and twist and bend to obtain the parts to be placed on the table to be assembled. Champagne argues that the work restrictions provided by Dr. Steiner in November 2003, included no repetitive bending, stooping, twisting and lifting. Champagne argues the work provided by PHS required him to bend and twist approximately two to three hundred times per day. He argues he could not perform the light duty work offered by PHS due to the pain involved in performing the tasks. Therefore, he claims he is entitled to supplemental earnings benefits.

Finally, Champagne argues he has not reached maximum medical improvement and is entitled to medical benefits for further testing that has been recommended by Dr. Katz.

For the reasons which follow, we agree with the workers’ compensation court and affirm the August 25, 2006 judgment. First, we find the court did not err in deciding that Dr. Steiner was Champagne’s choice of physician. La. R.S. 23:1121(B)(1) provides that, the employee shall have the right to select one treating physician in any field or specialty. Champagne claims that his employer’s insurance carrier told him to see Dr. Steiner and, thus, Dr. Steiner was not his choice of an orthopedic physician. Champagne had previously seen Dr. Steiner for an unrelated back problem and continued to treat with Dr. Steiner for this work related injury from March 2003 until January 2004. Further, there was no evidence presented at trial to indicate that Champagne was forced to treat with Dr. Steiner. Champagne has argued that he was not informed of his right to choose a treating physician and he did not sign a form choosing Dr. Steiner as his choice of an orthopedic physician, as required by La. R.S. 23:1121 (B)(2)(b). La. R.S. 23:1121(B) provides, in part:

|SB. (1) The employee shall have the right to select one treating physician in any field or specialty. The employee shall have a right to the type of summary proceeding provided for in R.S. 23:1124(B), when denied his right to an initial physician of choice. After his initial choice the employee shall obtain pri- or consent from the employer or his workers’ compensation carrier for a change of treating physician within that same field or specialty. The employee, however, is not required to obtain approval for change to a treating physician in another field or specialty.
(2)(a) If the employee is treated by any physician to whom he is not specifically directed by the employer or insurer, that physician shall be regarded as his choice of treating physician.
(b) When the employee is specifically directed to a physician by the employer or insurer, that physician may also be deemed as the employee’s choice of physician, if the employee has received written notice of his right to select one treating physician in any field or specialty, and then chooses to select the employer’s referral as his treating specialist after the initial medical examination as signified by his signature on a choice of physician form. The notice required by this Subparagraph shall be on a choice of physician form promulgated by the director of the office of workers’ compensation and shall contain the notice of the employee’s rights provided under R.S. 23:1121(B)(1). Such form shall be provided to the employee either in person or by certified mail.

We note that Champagne did not have to sign a choice of physician form that is now required by La. R.S. 23:1121 (B)(2)(b). That requirement was added to the statute by an amendment which was effective in 2003 and does not apply to accidents which occurred prior to the amendment date. Champagne’s work related accident occurred on September 20, 2002. Therefore, the amendment does not apply and even if Champagne was directed to see Dr. Steiner by his employer, a signed choice of physician form was not required in order for Dr. Steiner to be determined to be his choice of orthopedic physician. Further, there was no evidence presented at trial to indicate that Champagne was forced to continue treatment with Dr. Steiner. In addition, Champagne voluntarily returned to see Dr. Steiner in January 2004 after the alleged second work related accident without being directed to see Dr. Steiner by his employer. Therefore, we find the workers’ | scompensation court correctly found Dr. Steiner to be Champagne’s choice of physician in orthopedic surgery.

Next, we agree with the workers’ compensation court that Champagne was not disabled and therefore, not entitled to temporary or permanent total disability benefits. La. R.S. 23:1221(l)(a) and (2)(a) provide that an employee may be entitled to a percentage of his wages if any injury produces temporary or permanent total disability of the employee to engage in work, whether the same or similar work the employer was engaged in when injured. Compensation for temporary or permanent total disability shall not be awarded if the employee is engaged in employment regardless of the nature, including employment while working in any pain. La. R.S. 23:1221(l)(b) and (2)(b). Further, when the employee is not engaged in employment, compensation for temporary or permanent total disability shall be awarded only if the employee proves by clear and convincing evidence that he is physically unable to engage in any employment, regardless of the nature of the employment, including working in any pain. La. R.S. 23:1221(l)(c) and (2)(c).

Champagne had been released to light duty work and found to have reached maximum medical improvement by both Dr. Steiner and Dr. Katz. No treating physician found Champagne to be disabled and unable to return to work. Light duty work was offered and he returned to work for a while, but voluntarily chose to stop working, claiming he was in pain. We find Champagne has failed to prove he is physically unable to engage in employment. Therefore, we find the workers’ compensation court correctly found Champagne was not disabled and therefore not entitled to temporary or permanent total disability benefits.

Third, we agree that Champagne is not entitled to supplemental earnings benefits. La. R.S. 23:1221(3)(a) states that an employee may be entitled to ^^supplemental earnings benefits for an injury resulting in his inability to earn wages equal to 90% or more of the wages he earned at the time of the injury. PHS Industries provided light duty work for Champagne, in accordance with his physician’s recommendations. PHS provided Champagne with work as a Catalog Assembly Worker, which only required him to sit at a table and screw in nuts to the end of U-bolts. The wages for this position were the same as the wages Champagne was making before the accident. Dr. Steiner had reviewed the job description for this position and approved it as light duty work for Champagne. Champagne voluntarily chose to stop the light duty work offered by PHS. Since his employer offered a position to Champagne in accordance with his physician’s requirements and earning the same wages as before the injury, we find Champagne failed to prove he was entitled to supplemental earnings benefits. Thus, we find the workers’ compensation court correctly held Champagne was not entitled to supplemental earnings benefits.

Finally, we agree with the workers’ compensation court that Champagne had reached maximum medical improvement and was not entitled to further medical benefits. Dr. Steiner found in February 2006 that Champagne had reached maximum medical improvement. Dr. Katz agreed with that finding in March 2006. The only referral by Dr. Katz for further treatment was to a urologist for treatment of bowel and bladder problems found to be unrelated to the work related accident.

Accordingly, we affirm the August 25, 2006 judgment of the workers’ compensation court.

AFFIRMED.


text:
    STATE of Louisiana v. Stanley S. DORSEY.
    No. 07-KA-67.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2007.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Andrea F. Long, Kenneth P. Bordelon, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.

      Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

\ STATEMENT OF THE CASE

On December 9, 2004, the Jefferson Parish District Attorney filed a bill of information charging defendant, Stanley Dorsey, with distribution of cocaine, a violation of LSA-R.S. 40:967 A. Defendant was arraigned on January 12, 2005, and entered a plea of not guilty.

Trial was held on April 26, 2005. At trial, Agent Josh Bell of the Jefferson Parish Sheriffs Office testified that on May 6, 2004, he was assigned to make undercover narcotics purchases in the Holmes Boulevard area of Gretna. The assignment was part of an ongoing narcotics operation targeting known drug trafficking areas. Agent Bell’s unmarked vehicle was equipped with hidden video recording equipment. The officer was also equipped with an audio transmitter to allow nearby surveillance officers to monitor his activities.

Bell testified that at 2:15 p.m., he approached defendant, Stanley Dorsey, and asked him if he had a “twenty,” a slang term for crack cocaine. Defendant asked Bell twice whether he was a police officer, and Bell responded that he was not. Defendant handed Bell two off-white rocks that the officer believed to be crack, and Bell gave defendant two pre-recorded twenty-dollar bills. Bell testified that he drove away from the area and radioed a description of defendant to backup officers.

| -Agent Lisa Thornton also testified at trial that she met with Agent Bell shortly after he completed the transaction. Bell described the transaction to her and gave her the off-white rocks he had purchased from defendant.

Deputy Russell Blanchard, one of Bell’s backup officers, testified at trial that he located defendant immediately after receiving Bell’s description. Blanchard conducted a field interview with defendant at Athena Avenue and Holmes Boulevard, and completed a field interview card with defendánt’s personal information. Blanchard testified he was in uniform when he spoke to defendant, and that defendant was cooperative.

Agent Thornton testified that once defendant became a suspect, she included a picture of him in a photographic lineup. She presented the lineup to Agent Bell on May 26, 2004. Bell immediately identified defendant as the man who sold him the off-white rocks. Thornton testified that defendant was not arrested until a later date so the safety of the undercover officer would not be compromised.

Thomas Angelica testified he is a forensic scientist with the Jefferson Parish Sheriffs Office Crime Lab, specializing in drug chemistry. He tested the fragments ,of the off-white material defendant sold to Agent Bell, and the result was positive for cocaine. Angelica testified the net weight of the cocaine was .14 grams.

Defendant was found guilty as charged by a twelve person jury. On May 18, 2005, the trial court sentenced defendant to twenty years, the first two years to be served without benefit of parole, probation, or suspension of sentence. On that day the State filed a habitual offender bill of information, alleging defendant to be a third felony offender. An admit/deny hearing was held, and defendant entered a denial to the allegations in the habitual offender bill. On November 9, 2005, defendant filed a motion to quash the habitual offender bill. Although that motion |4was set for hearing, there is no evidence in the record that the trial court ever ruled on it.

On October 11, 2005, defendant filed a pro se motion for an out-of-time appeal. The trial court denied the motion on October 17, 2005, citing defendant’s failure to make his motion by way of an application for post-conviction relief, as required by law. On November 29, 2005, defendant filed an application for post-conviction relief, moving the trial court for an out-of-time appeal. The trial court granted defendant an out-of-time appeal on December 5, 2005.

On July 26, 2006, the State filed an amended habitual offender bill of information, alleging defendant to be a fourth felony offender. Defendant filed a written response to the habitual offender bill. On August 21, 2006, defendant entered a verbal denial to the allegations in the bill, and the trial court held a habitual offender hearing. The court found defendant to be a fourth felony offender. On that day, the judge vacated defendant’s original sentence and imposed an enhanced sentence of 35 years at hard labor, without benefit of probation or suspension of sentence. Defendant made an oral motion for appeal.

On August 22, 2006, defendant filed a timely written motion for appeal. The trial court granted that motion on September 11, 2006.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues his habitual offender sentence of thirty-five years is constitutionally excessive, since the underlying offense was non-violent and involved the sale of a small amount of cocaine to a person he believed to be a fellow narcotics addict. Defendant, who was twenty-four years old at the time of sentencing, argues his sentence is tantamount to a sentence of life imprisonment. |sThe State responds that defendant’s criminal history and the fact that he had pending criminal charges at the time of the instant conviction justified the sentence he received.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. Id. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. Id. On appellate review, the relevant question is not whether another sentence might have been more appropriate, but whether the trial court abused its broad sentencing discretion. Smith, 01-2574, at pp. 6-7, 839 So.2d at 4; State v. Anderson, 06-372, p. 6 (La.App. 5 Cir. 10/31/06), 945 So.2d 768, 771.

The three predicate convictions alleged in the amended habitual offender bill of information were first degree robbery (LSA-R.S.14:64.1), possession of cocaine (LSA-R.S.40:967 C), and unauthorized use of a motor vehicle (LSA-R.S.14:68.4). As a fourth felony offender, he was subject to a sentencing range of thirty years to life imprisonment. LSA-R.S. 15:529.1 A(l)(c)(i); LSA-R.S. 40:967 B(4)(b). His thirty-five year sentence was near the statutory minimum. Defendant does not argue on appeal — nor did he argue below— that the trial judge should have deviated below the statutory minimum sentence as provided in State v. Dorthey, 623 So.2d 1276 (La.1993). In any case, it is well established that the mere claim that one is a non-violent habitual offender and a drug addict is not | insufficient to support a finding that the mandatory minimum habitual offender sentence is excessive. A repeat offender’s propensity for violence is already factored into the sentencing scheme of LSA-R.S. 15:529.1. State v. Lindsey, 99-3302, p. 5 (La.10/17/00), 770 So.2d 339, 343, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001); State v. Harbor, 01-1261, p. 7 (La.App. 5th Cir.4/10/02), 817 So.2d 223, 227, writ denied, 02-1489 (La.5/9/03), 843 So.2d 388.

Sentences similar to defendant’s have been held constitutional for similarly situated offenders. In State v. Girod, 04-854 (La.App. 5 Cir. 12/28/04), 892 So.2d 646, 650, writ denied, 05-0597 (La.6/3/05), 903 So.2d 455, this Court upheld the defendant’s thirty-five year sentence as a fourth felony offender, where his underlying conviction was possession of a stolen thing and his predicate convictions included simple robbery, possession of PCP, and possession of cocaine. In State v. Wright, 05-477 (La.App. 5 Cir. 12/27/05), 920 So.2d 871, writ denied, 06-1141 (La.2/16/07), 949 So.2d 404, 2007 WL 781700, this Court found a thirty-year sentence for possession of cocaine was not excessive where the defendant was a fourth felony offender with predicate convictions for distribution of false drugs, simple robbery, and possession of cocaine.

Considering defendant’s criminal history, we find the trial court did not abuse its broad sentencing discretion in imposing a thirty-five year sentence, only five years above the mandatory minimum. Therefore, we affirm • defendant’s sentence of imprisonment for thirty-five years.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant has requested an error patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P.art. 920. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. Several errors are noted for review.

First, defendant filed a motion to quash the original habitual offender bill of information. Although the motion was set for hearing, there is no evidence in the record that the trial court ever held a hearing or ruled on the motion to quash. However, no corrective action is required. The motion was rendered moot by the State’s subsequent filing of an amended habitual offender bill. Also, by proceeding to the habitual offender hearing without objecting to the court’s failure to rule, defendant waived the motion. Compare, State v. Wise, 05-221, p. 7 (La.App. 5 Cir. 10/6/05), 916 So.2d 290, 293, in which this Court held that if a defendant does not object to the trial court’s failure to rule on a motion prior to trial, the motion is considered waived.

Second, the court imposed the habitual offender sentence without benefit of probation or suspension of sentence, as required by R.S. 15:5291.1 G, but failed to require that the first two years be served without benefit of parole, as required by R.S. 40:967 B(4)(b). This error requires no corrective action, since R.S. 15:301.1 makes the restriction self-activating.

Third, the habitual offender commitment incorrectly shows the court imposed sentence without addressing parole, probation, or suspension of sentence. Therefore, we order the trial court to amend the commitment to show the habitual offender sentence is to be served without benefit of parole for the first two years, and without probation or suspension of sentence for the entire term.

Accordingly, we affirm defendant’s sentence of thirty-five years and order the trial court to make the appropriate error patent correction as noted above.

AFFIRMED; WITH INSTRUCTIONS.

      . Defendant is limited to a bare review for constitutional excessiveness, since he failed to file a motion to reconsider sentence below. LSA-C.Cr.P. art. 881.1 E; State v. Lawson, 04-334, pp. 5-6 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.